Golden v. Home Depot U.S.A, Inc.

Opinion

CLYDE GOLDEN, individually and on No. 1:18-cv-00033-NONE-JLT behalf of all others similarly situated,

Plaintiff, ORDER GRANTING DEFENDANT’S v. MOTION FOR SUMMARY JUDGMENT HOME DEPOT U.S.A., INC., (Doc. No. 43) Defendant. Plaintiff Golden initiated this action by filing his complaint on January 5, 2018. Therein, based upon his allegation that defendant misrepresented to him that he was purchasing a piece of mahogany when he was not, he asserted causes of action for: 1) declaratory relief ; 2) breach of the duty of good faith and fair dealing; 3) violation of California’s Consumer Legal Remedies Act, California Civil Code § 1750, et seq. (“CLRA”); 4) violations of California’s Unfair Competition Law, California Business & Professions Code § 17200, et seq. (“UCL”); 5) violations of California’s False Advertising Law, California Business & Professions Code § 17500, et seq. (“FAL”); 6) Negligent Misrepresentation; 7) Unjust Enrichment; and 8) Breach of Express Warranty. (Doc. No. 1.) On May 31, 2018, the then-assigned District Judge dismissed plaintiff’s claims for breach of the duty of good faith and fair dealing, negligent misrepresentation, and unjust enrichment. (Doc. No. 19 at 27–28.) On October 11, 2019, defendant Home Depot U.S.A., Inc. filed a motion seeking summary judgment in its favor with respect to plaintiff’s remaining claims for declaratory relief, violation of the CLRA, violations of the UCL, violations of the FAL, and breach of express warranty. (Doc. No. 43.) Plaintiff Golden filed his opposition on October 31, 2019. (Doc. No. 44.) Defendant filed its reply on November 7, 2019. (Doc. No. 45.) The court has determined the pending motion for summary judgment is suitable for decision based on the papers under Local Rule 230(g) and, for the reasons explained below, will grant defendant’s motion in its entirety. The following facts are undisputed unless otherwise noted. Plaintiff visited a Home Depot store in Bakersfield, CA on July 26, 2017. (Doc. No. 43-3 ¶ 32.) Plaintiff did not intend to buy lumber when he went to the Home Depot, nor did he have a particular use for any lumber. (Id. ¶¶ 38–39.) Nonetheless, plaintiff purchased a piece of 1x2 lumber during his visit to the store that day. (Id. ¶ 32.) Plaintiff is a carpenter by education, training, and experience. (Doc. No. 43-3 ¶ 14.) He has worked as a carpenter for forty years and has been a member of the United Brotherhood of Carpenters since 1978. (Id. ¶¶ 15, 18.) Plaintiff describes his own experience working with wood as “fairly intimate” and reports having “skills and talents in dendrology,” the scientific study of trees. (Id. ¶¶ 19, 26.) Plaintiff has experience in identifying wood types and testified at his deposition that he “usually know[s] the type of wood when [he] see[s] it” based on its color, grain, weight, general appearance, and, sometimes, price.” (Id. ¶ 27.) Before plaintiff purchased any lumber on the date in question, he was aware that multiple species of wood have “mahogany” as part of their common name. (Id. ¶ 33.) In his complaint, plaintiff alleges that, “[a]uthentic mahogany and the only hardwoods that can [] truly be called mahogany are from the Meliaceae family.”1 (Doc. No. 1 ¶ 33.) Before purchasing the wood from the Home Depot store on the day in question, plaintiff determined that it did not appear to be 1 The parties use two different spellings for the Melicaceae/Meliaceae family. For purposes of Honduras Mahogany.2 (Id. ¶ 35.) Rather, he believed that it bore a resemblance to Khaya, or African Mahogany.3 (Id. ¶ 34.) There is no dispute that the lumber plaintiff actually purchased from the Home Depot store was Khaya (African Mahogany) of the genus Khaya and family Meliaceae.4 (Id. ¶ 49; Doc. No. 43-3 ¶¶ 2–3, 5.) There is also no dispute that Swietenia (Honduras Mahogany) is also a genus of the Melicaceae family. (Id. ¶¶ 2–3, 6.) Prior to making his purchase, plaintiff did not have any conversation with Home Depot employees about the lumber. 5 (Id. ¶ 36.) Furthermore, before his purchase, plaintiff did not see any advertisements about the lumber he bought. (Doc. No. 43-3 ¶ 37.) The price of the lumber was $1.76 per linear foot. (Id. ¶ 43.) Plaintiff admits that he bought the lumber to satisfy a curiosity he had as to whether he could identify the wood type. (Id. ¶ 49.) Plaintiff testified at his deposition that he also bought the wood because he “wanted to see how fraudulent Home Depot was.” (Doc. No. 43-4, Ex. B (Golden Dep. 70:12–13).) In light of this purpose, according to plaintiff, he “found the smallest quantity [he] could purchase.” (Doc. No. 43-4, Ex. B (Golden Dep. 76:20–23).) Plaintiff spent $3.52 in total on the lumber. (Doc. No. 43-3 ¶ 43.)

2 Plaintiff’s theory appears to have changed from the time of the filing of his complaint to the time of his filing of his opposition to defendant’s summary judgment motion. He now argues that “genuine Mahogany is from the Swietenia genus of the Meliaceae family, commonly known as Honduras Mahogany.” (Doc. No. 44 at 7.)

3 Plaintiff also testified at his deposition that he had experience with Khaya in a professional capacity. (Doc. No. 43-4, Ex. B (Golden Dep. 69:3–5).) Plaintiff’s first experience working with mahogany wood dates back to 1981. (Doc. No. 43-3 ¶ 28.) Additionally, he worked on a “very high-end residence in Palos Verdes where the entire kitchen and much of the millwork in the rest of the house was Khaya.” (Doc. No. 43-4, Ex. B (Golden Dep. 68:24–69:2).) 4 In his complaint, plaintiff has alleged that Home Depot marketed Eucalyptus labeled as Swamp mahogany. (See Doc. No. 1 ¶¶ 39, 61.) Plaintiff also has alleged that he “tested the product he purchased and discovered that it was not, in fact, genuine mahogany, but actually Eucalyptus.” (Id. ¶ 62.) However, the parties now agree that the lumber plaintiff purchased was not Eucalyptus. (Doc. No. 43-3 ¶¶ 46–47.) Nonetheless, plaintiff never amended his complaint.

5 Plaintiff alleges in his complaint that “[a]t the time he purchased the packages [of 1x2 lumber], employees of Home Depot told Mr. Golden that the lumber products he was purchasing were authentic, genuine mahogany.” (Doc. No. 1 ¶ 60.) However, plaintiff testified at his deposition that he did not talk to a Home Depot employee about the lumber at issue until “weeks or months” In his complaint, plaintiff has alleged that Home Depot advertised its wood as “authentic” and “genuine.” (See, e.g., Doc. No. 1. ¶¶ 94, 107, 119, 160.) At his deposition, plaintiff testified: Q: And when you saw the mahogany wood that Home Depot was advertising, it appeared to be to you Khaya? A: Yes. (Doc. No. 43-4, Ex. B (Golden Dep. 69:6–11).) Q: Did the sign that you saw in the store adjacent to the wood that you purchased from Home Depot in July 2017 describe the mahogany as genuine? A: No. Q: Did the sign describe the mahogany as authentic? A: No. Q: Did the sign describe the mahogany as Swietenia? A: No. (Id. 75:12–22.) Plaintiff has submitted as exhibits Home Depot advertisements stating that the lumber “[m]eets the highest grading standings for strength and appearance” and “[m]ahogany is regarded as a unique wood for cabinets and furniture.” (Doc. No. 44-2, Exs. 1–2.) None of plaintiff’s exhibits establish, however, that Home Depot used the words “authentic” or “genuine” in describing the lumber in question. (See generally id.) Summary judgment is proper if the movant shows “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. The moving party bears the initial burden of “informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal citation and quotation omitted). The moving party may accomplish this by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” or by showing that such materials “do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). A fact is material if it could affect the outcome of the suit under the governing substantive law; “irrelevant” or “unnecessary” factual disputes will not be counted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); ); see also T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). If the moving party would bear the burden of proof on an issue at trial, that party must “affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). In contrast, if the non-moving party bears the burden of proof on an issue, as plaintiff does here, the moving party can prevail by “merely pointing out that there is an absence of evidence to support the non- moving party’s case.” Id.; see also In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex, 477 U.S. at 325); Fed. R. Civ. P. 56(c)(1)(B). Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 322–23. In such a circumstance, summary judgment should be granted, “so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment . . . is satisfied.” Id. at 323. When the moving party meets its burden, the non-moving party must demonstrate that there are genuine disputes as to material facts by either: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits or admissible discovery material in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11;. In ruling on a motion for summary judgment, a court does not make credibility determinations or weigh evidence. See Anderson, 477 U.S. at 255. Rather, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. Only admissible evidence may be considered in deciding a motion for summary judgment. Fed. R. Civ. P. 56(c)(2); see also Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002). “Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment.” Soremekun, 509 F.3d at 984; see also Anderson, 477 U.S. at 250; Wool v. Tandem Computs. Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). With these standards in mind, below the court will address defendant’s pending motion with respect to each of plaintiff’s remaining causes of action. A. Reliance Plaintiff’s Unfair Competition Law (“UCL”), false advertising law (“FAL”), and California Consumer Legal Remedies Act (“CLRA”) claims all require reliance. Beyer v. Symantec, Corp., 333 F. Supp. 3d 966, 980 (N.D. Cal. 2018) (“Reliance is required to achieve standing under the UCL, FAL, and CLRA.”); In re Ferrero Litig., 794 F. Supp. 2d 1107, 1111 (S.D. Cal. 2011) (finding failure to state a claim under UCL, FAL, and CLRA claims where plaintiffs alleged that they relied on Nutella’s representations on labels and television advertisements, but admit they never personally visited Nutella website). “Reliance is proved by showing that the defendant’s misrepresentation or nondisclosure was ‘an immediate cause’ of the plaintiff’s injury-producing conduct,” which requires a showing that “in its absence the plaintiff in all reasonable probability would not have engaged in the injury-producing conduct.” In re Tobacco II Cases, 46 Cal. 4th 298, 326 (2009); see also Wilson v. Frito Lay N.A., Inc., 260 F. Supp. 3d 1202, 1214 (N.D. Cal. 2017) (finding no genuine dispute regarding reliance where the plaintiff affirmed at his deposition that it was “fair to say that the natural label isn’t the reason that [he] bought them” and “things like taste and that it was a good snack were the reasons [he] purchased them,” contrasted with plaintiff’s inconsistent pleadings alleging that the “all natural” label misled him into thinking the purchased products were “made with all natural ingredients” or “all natural”). Here, there is no dispute with respect to whether plaintiff relied on defendant’s representations regarding the wood he bought. Before plaintiff purchased the lumber in question, he was aware that multiple species of wood have “mahogany” as part of their common name. (Doc. No. 43-3 ¶ 33.) In his complaint, plaintiff alleges that, “[a]uthentic mahogany and the only hardwoods that can [] truly be called mahogany are from the Meliaceae family.” (Doc. No. 1 ¶ 33.) Moreover, there is no dispute both that the lumber plaintiff purchased was of the Khaya genus (Doc. No. 43-3 ¶ 49) and that Khaya (African Mahogany) is a genus of the Meliaceae family. (Doc. No. 43-3 ¶¶ 2–3, 5.) Before his purchase, plaintiff believed the lumber at Home Depot resembled African Mahogany and did not appear to be Honduras Mahogany. (Id. ¶¶ 34, 35.) Before his purchase, plaintiff did not have any conversations with Home Depot employees about the wood (id. ¶ 36), nor did he see any advertisements about the lumber. (Id. ¶ 37.) This evidence before the court on summary judgment, in the form of plaintiff’s own deposition testimony, flatly contradicts the allegations of his complaint that “[a]t the time he purchased the packages, employees of Home Depot told Mr. Golden that the lumber products he was purchasing were authentic, genuine mahogany.” (Doc. No. 1 ¶ 60.) In fact, the evidence on summary judgment establishes that plaintiff’s conversations with a Home Depot employee occurred “weeks” or “months” after he purchased the lumber. (Doc. No. 43-4, Ex. B (Golden Dep. 83:2–4).) Those conversations are thus irrelevant to the issue of whether plaintiff relied on Home Depot’s statements in making his purchase. Instead, the Joint Statement of Undisputed Facts before the court on summary judgment establishes that plaintiff purchased the lumber because he was pining to see whether he could identify the wood type. (Doc. No. 43-3 ¶ 49.) As noted above, plaintiff also testified at his deposition that he bought the wood because he “wanted to see how fraudulent Home Depot was.” (Doc. No. 43-4, Ex. B (Golden Dep. 70:12–13).) Moreover, the uncontroverted evidence on summary judgment shows that plaintiff “found the smallest quantity [he] could purchase” and spent $3.52 total on the lumber. (Doc. No. 43-3 ¶ 43; Doc. No. 43-4, Ex. B (Golden Dep:76:20– 23).) Plaintiff further testified at deposition that the sign adjacent to the lumber at the Home Depot store in July 2017 never described the mahogany he purchased as “genuine,” “authentic,” or “Swietenia,” which once again contradicts the allegations in his complaint that Home Depot advertised its lumber as “authentic” and “genuine.” (Compare Doc. No. 43-4, Ex. B (Golden Dep. 69:6–11), with Doc. No. 1 ¶¶ 94, 107, 119, 160.) Nor do the exhibits offered by plaintiff show that Home Depot described its lumber as “authentic” or “genuine.” (See generally Doc. No. 44-2, Exs. 1–2.) As in Frito Lay, where the court held that there was no genuine dispute regarding reliance where the plaintiff testified that he bought the snacks because of taste and contradicted his allegations that the “all natural” label misled him, here, plaintiff testified that he wanted to purchase the wood—the wood that he concedes he believed looked like African Mahogany and did not appear to be Honduras Mahogany—to satisfy his curiosity and prove Home Depot was fraudulent, which likewise contradicts the allegations of his complaint that Home Depot misled him into buying what it falsely represented to be “genuine” mahogany. See Frito Lay, 260 F. Supp. 3d at 1214. (Doc. No. 1 ¶¶ 39, 61–62; Doc. No. 43-3 ¶¶ 2–3, 34–35, 49; Doc. No. 43-4, Ex. B (Golden Dep. 70:12–13).) Based on the evidence before the court on summary judgment, there is no genuine issue of material fact regarding whether plaintiff relied on any representations made by Home Depot when purchasing the lumber. In short, the root of plaintiff’s problem with respect to this claim is that the undisputed evidence establishes his lack of reliance. Accordingly, the court will grant summary judgment in favor of defendant as to plaintiff’s FAL, UCL, and CLRA claims. B. Express Warranty To establish liability for breach of an express warranty under California law, a plaintiff must show that a defendant made an “affirmation,” “promise,” “or description” about the product purchased. See Cal. Com. Code § 2313. Additionally, a plaintiff must demonstrate that the affirmation or promise was breached. Sanders v. Apple Inc., 672 F. Supp. 2d 978, 988 (N.D. Cal. 2009) (“A claim for breach of an express warranty requires an actual breach.”) Here, there is no genuine issue of material fact regarding whether Home Depot expressly warranted that its lumber was “genuine” or “authentic” mahogany. Plaintiff argues that Home Depot “expressly warrant[ed] that the goods are conforming to genuine Mahogany, not a Mahogany substitute.” (Doc. No. 44 at 23.) In this regard, plaintiff is simply barking up the wrong tree. As discussed above, none of the exhibits or other evidence that plaintiff has come forward with on summary judgment show that Home Depot described its lumber as “genuine” or “authentic” mahogany. (See generally Doc. No. 44-2, Exs. 1–2.) Indeed, plaintiff testified at his deposition that on the day he purchased the lumber, the sign at the Home Depot store adjacent to the wood did not say “genuine” or “authentic.” (Doc. No. 43-4, Ex. B (Golden Dep. 75:12–22).) Based upon this evidence, no reasonable jury could find that Home Depot expressly warranted that the mahogany in question was “genuine” or “authentic.” Plaintiff contends that defendant would have the court believe “anything in the Meliaceae family is Mahogany.” (Doc. No. 44 at 7.) Plaintiff, however, was the first to assert that authentic mahogany sprouts from the Meliaceae family. (Doc. No. 1 ¶ 33 (“Authentic mahogany and the only hardwoods that can [] truly be called mahogany are from the Meliaceae family.”).) Apparently recognizing the need to spruce up his argument, plaintiff now elects to branch out and argue that “African Mahogany is but a Mahogany substitute, while the Swietenia genus Honduras Mahogany is genuine.” (Id.) However, by plaintiff’s own admission, the lumber he purchased from defendant—Khaya or African Mahogany, which is undisputedly a genus of the Meliaceae family—may be called mahogany. (Doc. No. 43-3 ¶¶ 2, 3, 5 49.) Moreover, plaintiff’s expert testified at deposition that the Meliaceae family is sometimes referred to as the mahogany family. (Doc. No. 43-4, Ex. A (Miller Dep. 59:16–60:2).) Defendant too has come forward with evidence on summary judgment supporting the contention that the Meliaceae family is referred to as the mahogany family of wood. (See, e.g., Doc. No. 43-4, Ex. J (“African Mahogany is just as much part of the Meliaceae (mahogany) family as the Central and South American species.”).) WwAOe 4.40 MAAR VRP MVUUIITOCIN Yh FIR Vette PAY 4 UI ALY

Therefore, in light of the evidence before the court on summary judgment (supported in part by plaintiff's own admission embodied in the allegations of his complaint), there simply is no evidence from which a reasonable jury could find that defendant expressly warranted that its lumber was “genuine” or “authentic” mahogany. Similarly, there is no evidence that defendant breached any express warranty in selling the lumber to plaintiff. Rather, the uncontroverted evidence before the court on summary judgment establishes that plaintiff bought from defendant a type of mahogany, just not Honduras mahogany. Accordingly, the court will also grant summary judgment in favor of defendant as to plaintiff's express warranty claim. With summary judgment being granted in defendant’s favor as to plaintiff's FAL, UCL, CLRA, and express warranty claims, the court also will grant defendant’s summary judgment motion on plaintiff's remaining claim for declaratory relief. For the reasons explained above, the court GRANTS defendant’s motion for summary judgment (Doc. No. 43) in its entirety. The Clerk of Court is directed to CLOSE this case. IT IS SO ORDERED. me □ '© | Dated: _-May 20, 2020 Yel A Low UNITED STATES DISTRICT JUDGE 10