Alen Baghdasarian v. Amazon.com Inc.

FILED
NOT FOR PUBLICATION NOV 10 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

ALEN BAGHDASARIAN, on Behalf of No. 10-55012
Himself and All Others Similarly Situated,
D.C. No. 2:05-cv-08060-AG-CT
Plaintiff - Appellant,

v. MEMORANDUM *

AMAZON.COM INC.,

Defendant - Appellee.

Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding

Submitted October 12, 2011 **
Pasadena, California

Before: LEAVY and WARDLAW, Circuit Judges, and SESSIONS, District
Judge.***

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable William K. Sessions, III, District Judge for the U.S.
District Court for Vermont, Burlington, sitting by designation.
 Alen Baghdasarian appeals the district court’s grant of summary judgment in

favor of Amazon.com, Inc. Baghdasarian argues that the district court incorrectly

found that there was no genuine issue of material fact as to whether he established

reliance as required by California’s Unfair Competition Law (UCL), Cal. Bus. &

Prof. Code §§ 17200 et seq. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.

No genuine issue of material fact exists as to whether Baghdasarian relied

upon Amazon’s policy regarding its shipping and handling fee in deciding to

purchase books through the Amazon Marketplace. The UCL requires a plaintiff to

have “lost money or property as a result of” the business practice or act at issue.

Cal. Bus. & Prof. Code § 17204 (emphasis added). The UCL’s “as a result of”

language imposes an “actual reliance” requirement, thus, to prevail, a plaintiff must

establish that the alleged misrepresentation was an “immediate cause” or

“substantial factor” in the plaintiff’s decision to engage in the injury-producing

conduct. In re Tobacco II Cases, 46 Cal. 4th 298, 326-27 (2009).

When deposed, Baghdasarian testified that his decision to purchase books

through the Marketplace was driven by total cost and security, factors that are

unrelated to Amazon’s alleged misrepresentation. He also testified that even if he

had been aware of Amazon’s practices with regard to the shipping and handling

fee, he would not have been deterred from making the purchases. Although
Baghdasarian asserts he believed and relied upon Amazon’s representations

regarding the shipping and handling fee, no evidence indicates that those

representations were an “immediate cause” or “substantial factor” in his decision to

purchase books through the Marketplace. Indeed, given Baghdasarian’s testimony

that in making his purchasing decisions he shops comparatively to pay the lowest

cost, including shipping, the existence of a hidden “holdback fee” in Amazon’s

price was not a factor that could have affected his decision to purchase on the

Marketplace.

We therefore affirm the district court’s conclusion that Baghdasarian cannot

demonstrate actual reliance. We do not reach the issue of whether plaintiff

established a genuine issue of material fact as to whether Baghdasarian lost money

or property. Cf. Kwikset Corp. v. Superior Court, 51 Cal. 4th 310 (2011).

AFFIRMED.