FILED
NOT FOR PUBLICATION APR 01 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER O’SHEA; GISELE No. 11-57105
ROGERS; JEFF ADAMS, individuals, on
behalf of themselves and all others D.C. No. 2:09-cv-08063-PSG-CW
similarly situated,
Plaintiffs - Appellants, MEMORANDUM*
v.
EPSON AMERICA, INC., a California
corporation; EPSON ACCESSORIES,
INC., a California corporation; SEIKO
EPSON CORPORATION, a Japanese
corporation,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted December 3, 2013
Pasadena, California
Before: PREGERSON, BERZON, and CHRISTEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Plaintiffs appeal the district court’s partial summary judgment in favor of
Epson America Inc., Epson Accessories, Inc., and Seiko Epson Corporation
(collectively, “Epson”). We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
We review de novo the district court’s ruling on a motion for summary
judgment. SEC v. CMKM Diamonds, Inc., 729 F.3d 1248, 1255 (9th Cir. 2013).
“Summary judgment may be affirmed on any ground supported by the record.”
Crowley v. Nev. ex rel. Nev. Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012).
Plaintiffs allege that Epson failed to disclose material information about
Epson inkjet printers and ink cartridges. On its website, Epson discloses that it
tests ink cartridges in accordance with industry standards. The website also
discloses detailed information about how Epson calculates its ink cartridge testing
metric (ink yield) and states that no single standard duplicates a customer’s actual
printer usage.
Under California law, a plaintiff alleging fraud by omission must establish
actual reliance by demonstrating “that had the omitted information been disclosed,
[he or she] would have been aware of it and behaved differently.” Mirkin v.
Wasserman, 858 P.2d 568, 574 (Cal. 1993). Here, Plaintiffs are unable to
demonstrate actual reliance because none of the Plaintiffs read Epson’s disclosures
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. Because Plaintiffs cannot demonstrate actual reliance, Plaintiffs’ omission-
based claims fail.
AFFIRMED.
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