Neman Brothers & Assoc., Inc. v. One Step Up, Ltd.

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 25, 2019
• Docket: 17-56876
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 25 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NEMAN BROTHERS & ASSOC., INC., a No. 17-56876 California corporation, D.C. No. Plaintiff-Appellant, 2:17-cv-06400-RGK-SS

v. MEMORANDUM* ONE STEP UP, LTD., a New York corporation; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

Argued and Submitted March 6, 2019 Pasadena, California

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

Neman Brothers & Associates, Inc. (“Neman”) brought an action for

fraudulent inducement, breach of representations and warranties, and copyright

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable William K. Sessions III, United States District Judge for the District of Vermont, sitting by designation. infringement against One Step Up Ltd., Harry Adjmi, Morris Tbeile, Ross Stores,

Inc., and Factory Connection, LLC (collectively, the “defendants”). Neman

appeals the district court’s grant of summary judgment in favor of the defendants.

We review de novo a district court’s grant of summary judgment. L.A. Printex

Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841, 846 (9th Cir. 2012). “Summary

judgment is appropriate only when, viewing the evidence in the light most

favorable to the nonmoving party, the court concludes that there are no genuine

issues of material fact with respect to the claims.” Taybron v. City & Cty. of San

Francisco, 341 F.3d 957, 960 (9th Cir. 2003).

Neman claims that the defendants made fraudulent statements that induced it

to enter into a settlement agreement between the parties. Pursuant to the settlement

agreement, Neman is required to demonstrate that the alleged fraudulent statements

were material. “A misrepresentation is judged to be ‘material’ if ‘a reasonable

man would attach importance to its existence or nonexistence in determining his

choice of action in the transaction in question.’” Engalla v. Permanente Med.

Grp., Inc., 938 P.2d 903, 919 (Cal. 1997) (quoting Restatement (Second) of Torts

§ 538(2)(a)).

Neman failed to present any arguments or evidence below supporting its

argument that the alleged misrepresentations were material. Therefore, the district

court did not err in granting summary judgment on its fraudulent inducement

2 claim. The materiality arguments that Neman makes for the first time on appeal

were waived. See Pac. Dawn LLC v. Pritzker, 831 F.3d 1166, 1178 n.7 (9th Cir.

2016) (“But the plaintiffs did not raise that argument to the district court in their . .

. opposition to the defendants’ motion for summary judgment, so the argument was

waived.”).

The district court also properly granted summary judgment on Neman’s

claim for breach of representations and warranties because Neman failed to present

any evidence of damages. See Durell v. Sharp Healthcare, 108 Cal. Rptr. 3d 682,

697 (Ct. App. 2010) (resulting damages is a necessary element for a cause of

action for breach of contract). Neman raises new arguments on appeal regarding

its damages, but again, we decline to address these arguments because they were

waived. See Pritzker, 831 F.3d at 1178 n.7.

Finally, Neman fails to present any evidence supporting its claim that the

alleged infringing garments at issue here are not part of the garments that were

released by the settlement agreement. Thus, because there is no genuine dispute

that the alleged infringing garments are part of the garments that were released by

the settlement agreement, we conclude that the district court properly granted

summary judgment on Neman’s copyright infringement claims.

AFFIRMED.