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NOT FOR PUBLICATION NOV 10 2011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.