UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT FILED JUL 31 2018 WENDY CHOWNING, No. 16-56272 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS Plaintiff-Appellant, D.C. No. 2:15-cv-08673-RGK-SP v. Central District of California, Los Angeles KOHL’S DEPARTMENT STORES, INC.; et al., ORDER Defendants-Appellees.
Before: N.R. SMITH and FRIEDLAND, Circuit Judges, and LYNN,* Chief District Judge.
The memorandum disposition filed on June 18, 2018, is amended by the
memorandum disposition filed concurrently with this order, as follows: On page 4,
Line 7, the word “more” is replaced with “less.”
With this amendment, the panel has voted to deny the petition for panel
rehearing. Judge N.R. Smith and Judge Friedland have voted to deny the petition
for rehearing en banc, and Chief Judge Lynn has so recommended.
The full court was advised of the petition for rehearing en banc and no judge
has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.
* The Honorable Barbara M. G. Lynn, Chief United States District Judge for the Northern District of Texas, sitting by designation. The petition for rehearing and petition for rehearing en banc are DENIED.
No further petitions for panel rehearing and rehearing en banc may be filed.
2 FILED NOT FOR PUBLICATION JUL 31 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WENDY CHOWNING, No. 16-56272
Plaintiff-Appellant, D.C. No. 2:15-cv-08673-RGK-SP v.
KOHL’S DEPARTMENT STORES, INC.; AMENDED KOHL’S CORPORATION; DOES, 1-20, MEMORANDUM* inclusive,
Defendants-Appellees.
Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding
Argued and Submitted May 17, 2018 San Francisco, California
Before: N.R. SMITH and FRIEDLAND, Circuit Judges, and LYNN,** Chief District Judge.
Wendy Chowning appeals the district court’s grant of summary judgment to
Kohl’s Department Stores, Inc. and Kohl’s Corporation (collectively “Kohl’s”) in
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Barbara M. G. Lynn, Chief United States District Judge for the Northern District of Texas, sitting by designation. her putative class action regarding alleged advertising misrepresentations. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
California’s Unfair Competition Law (UCL)1 “is equitable in nature;
damages cannot be recovered.” Korea Supply Co. v. Lockheed Martin Corp., 63
P.3d 937, 943 (Cal. 2003). Remedies are “generally limited to injunctive relief and
restitution.” Id. (quoting Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 973
P.2d 527, 539 (Cal. 1999)). Though restitution is possible, “[i]njunctions are ‘the
primary form of relief available under the UCL to protect consumers from unfair
business practices,’ while restitution is a type of ‘ancillary relief.’” Kwikset Corp.
v. Superior Court, 246 P.3d 877, 895 (Cal. 2011) (quoting In re Tobacco II Cases,
207 P.3d 20, 34 (Cal. 2009)).2
1 The remedies under the UCL and California’s False Advertising Law (FAL) are “interpreted in the same fashion and allow for the same type of relief.” In re Tobacco Cases II, 192 Cal. Rptr. 3d 881, 887 n.2 (Cal. Ct. App. 2015). Similarly, “[t]here is nothing to suggest that the restitution remedy provided under the [Consumer Legal Remedies Act (CLRA)] should be treated differently than the restitution remedies provided under the [FAL] or [UCL].” Colgan v. Leatherman Tool Grp., Inc., 38 Cal. Rptr. 3d 36, 58 (Cal. Ct. App. 2006). Therefore, although we refer only to the UCL, this disposition is applicable to all three statutory schemes at issue. 2 Another class action against Kohl’s has already been certified regarding injunctive relief. Therefore, with the “primary form of relief” gone, Chowning’s only additional remedies are the “ancillary relief” found in restitution. Kwikset Corp., 246 P.3d at 895. 2 1. The proper calculation of restitution in this case is price paid versus value
received. Under California law, where a plaintiff obtains value from the product,
the proper measure of restitution is “[t]he difference between what the plaintiff
paid and the value of what the plaintiff received.” In re Vioxx Class Cases, 103
Cal. Rptr. 3d 83, 96 (Cal. Ct. App. 2009); see also In re Tobacco Cases II, 192 Cal.
Rptr. 3d at 894.3 Here, Chowning admits that she received value. Therefore, the
appropriate calculation for restitution is the price Chowning paid for the articles
versus the value of the articles she received.
2. “Rule 56(c) mandates the entry of summary judgment, 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
3 Chowning argues that we should follow our earlier decision in Pulaski & Middleman, LLC v. Google, Inc., 802 F.3d 979, 988-89 (9th Cir. 2015). But she does not explain why Pulaski requires a different result than the one we reach here. Pulaski explains that “[r]estitution is ‘the return of the excess of what the plaintiff gave the defendant over the value of what the plaintiff received.’” Id. at 988 (quoting Cortez v. Purolator Air Filtration Prods. Co., 999 P.2d 706, 713 (Cal. 2000)). That is the same measure of restitution identified by In re Tobacco Cases II and is the same measure that applies here. To the extent that Pulaski is inconsistent with In re Tobacco Cases II, however, we must follow In re Tobacco Cases II. In re Tobacco Cases II was decided after Pulaski, and “[d]ecisions by state intermediate appellate courts are data which are not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.” Dimidowich v. Bell & Howell, 803 F.2d 1473, 1482 (9th Cir. 1986) (quotation marks and citation omitted). 3 on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). Here, Chowning failed to meet her burden to prove she
was entitled to restitution. First, Chowning’s expert testified that he was not
expressing an opinion on retail value. Second, Chowning introduced no competent
evidence regarding the value of articles of clothing of similar style, quality, etc.
Restitution requires that the “value of what the plaintiff received” was less than
what the “plaintiff paid.” In re Vioxx Class Cases, 103 Cal. Rptr. 3d at 96; see also
In re Tobacco Cases II, 192 Cal. Rptr. 3d at 894. Without evidence of the
“value . . . received,” that calculation is impossible. Therefore, Kohl’s is entitled to
summary judgment.
3. Rescission or “full refund” is unavailable in this case. “A full refund may
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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT FILED JUL 31 2018 WENDY CHOWNING, No. 16-56272 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS Plaintiff-Appellant, D.C. No. 2:15-cv-08673-RGK-SP v. Central District of California, Los Angeles KOHL’S DEPARTMENT STORES, INC.; et al., ORDER Defendants-Appellees.
Before: N.R. SMITH and FRIEDLAND, Circuit Judges, and LYNN,* Chief District Judge.
The memorandum disposition filed on June 18, 2018, is amended by the
memorandum disposition filed concurrently with this order, as follows: On page 4,
Line 7, the word “more” is replaced with “less.”
With this amendment, the panel has voted to deny the petition for panel
rehearing. Judge N.R. Smith and Judge Friedland have voted to deny the petition
for rehearing en banc, and Chief Judge Lynn has so recommended.
The full court was advised of the petition for rehearing en banc and no judge
has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.
* The Honorable Barbara M. G. Lynn, Chief United States District Judge for the Northern District of Texas, sitting by designation. The petition for rehearing and petition for rehearing en banc are DENIED.
No further petitions for panel rehearing and rehearing en banc may be filed.
2 FILED NOT FOR PUBLICATION JUL 31 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WENDY CHOWNING, No. 16-56272
Plaintiff-Appellant, D.C. No. 2:15-cv-08673-RGK-SP v.
KOHL’S DEPARTMENT STORES, INC.; AMENDED KOHL’S CORPORATION; DOES, 1-20, MEMORANDUM* inclusive,
Defendants-Appellees.
Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding
Argued and Submitted May 17, 2018 San Francisco, California
Before: N.R. SMITH and FRIEDLAND, Circuit Judges, and LYNN,** Chief District Judge.
Wendy Chowning appeals the district court’s grant of summary judgment to
Kohl’s Department Stores, Inc. and Kohl’s Corporation (collectively “Kohl’s”) in
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Barbara M. G. Lynn, Chief United States District Judge for the Northern District of Texas, sitting by designation. her putative class action regarding alleged advertising misrepresentations. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
California’s Unfair Competition Law (UCL)1 “is equitable in nature;
damages cannot be recovered.” Korea Supply Co. v. Lockheed Martin Corp., 63
P.3d 937, 943 (Cal. 2003). Remedies are “generally limited to injunctive relief and
restitution.” Id. (quoting Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 973
P.2d 527, 539 (Cal. 1999)). Though restitution is possible, “[i]njunctions are ‘the
primary form of relief available under the UCL to protect consumers from unfair
business practices,’ while restitution is a type of ‘ancillary relief.’” Kwikset Corp.
v. Superior Court, 246 P.3d 877, 895 (Cal. 2011) (quoting In re Tobacco II Cases,
207 P.3d 20, 34 (Cal. 2009)).2
1 The remedies under the UCL and California’s False Advertising Law (FAL) are “interpreted in the same fashion and allow for the same type of relief.” In re Tobacco Cases II, 192 Cal. Rptr. 3d 881, 887 n.2 (Cal. Ct. App. 2015). Similarly, “[t]here is nothing to suggest that the restitution remedy provided under the [Consumer Legal Remedies Act (CLRA)] should be treated differently than the restitution remedies provided under the [FAL] or [UCL].” Colgan v. Leatherman Tool Grp., Inc., 38 Cal. Rptr. 3d 36, 58 (Cal. Ct. App. 2006). Therefore, although we refer only to the UCL, this disposition is applicable to all three statutory schemes at issue. 2 Another class action against Kohl’s has already been certified regarding injunctive relief. Therefore, with the “primary form of relief” gone, Chowning’s only additional remedies are the “ancillary relief” found in restitution. Kwikset Corp., 246 P.3d at 895. 2 1. The proper calculation of restitution in this case is price paid versus value
received. Under California law, where a plaintiff obtains value from the product,
the proper measure of restitution is “[t]he difference between what the plaintiff
paid and the value of what the plaintiff received.” In re Vioxx Class Cases, 103
Cal. Rptr. 3d 83, 96 (Cal. Ct. App. 2009); see also In re Tobacco Cases II, 192 Cal.
Rptr. 3d at 894.3 Here, Chowning admits that she received value. Therefore, the
appropriate calculation for restitution is the price Chowning paid for the articles
versus the value of the articles she received.
2. “Rule 56(c) mandates the entry of summary judgment, 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
3 Chowning argues that we should follow our earlier decision in Pulaski & Middleman, LLC v. Google, Inc., 802 F.3d 979, 988-89 (9th Cir. 2015). But she does not explain why Pulaski requires a different result than the one we reach here. Pulaski explains that “[r]estitution is ‘the return of the excess of what the plaintiff gave the defendant over the value of what the plaintiff received.’” Id. at 988 (quoting Cortez v. Purolator Air Filtration Prods. Co., 999 P.2d 706, 713 (Cal. 2000)). That is the same measure of restitution identified by In re Tobacco Cases II and is the same measure that applies here. To the extent that Pulaski is inconsistent with In re Tobacco Cases II, however, we must follow In re Tobacco Cases II. In re Tobacco Cases II was decided after Pulaski, and “[d]ecisions by state intermediate appellate courts are data which are not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.” Dimidowich v. Bell & Howell, 803 F.2d 1473, 1482 (9th Cir. 1986) (quotation marks and citation omitted). 3 on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). Here, Chowning failed to meet her burden to prove she
was entitled to restitution. First, Chowning’s expert testified that he was not
expressing an opinion on retail value. Second, Chowning introduced no competent
evidence regarding the value of articles of clothing of similar style, quality, etc.
Restitution requires that the “value of what the plaintiff received” was less than
what the “plaintiff paid.” In re Vioxx Class Cases, 103 Cal. Rptr. 3d at 96; see also
In re Tobacco Cases II, 192 Cal. Rptr. 3d at 894. Without evidence of the
“value . . . received,” that calculation is impossible. Therefore, Kohl’s is entitled to
summary judgment.
3. Rescission or “full refund” is unavailable in this case. “A full refund may
be available in a UCL case when the plaintiffs prove the product had no value to
them.” In re Tobacco Cases II, 192 Cal. Rptr. 3d at 895; see also Cortez, 999 P.2d
at 713 (holding restitution is “the return of the excess of what the plaintiff gave the
defendant over the value of what the plaintiff received”). If the product is truly
valueless, then the “price paid minus the value actually received equals the price
paid.” In re Tobacco Cases II, 192 Cal. Rptr. 3d at 895. Chowning admits that she
received some value from the articles of clothing and, thus, rescission is not
available.
4 4. Disgorgement is unavailable in this case. Under California law, there are
two forms of disgorgement: “restitutionary disgorgement, which focuses on the
plaintiff’s loss, and nonrestitutionary disgorgement, which focuses on the
defendant’s unjust enrichment.” In re Tobacco Cases II, 192 Cal. Rptr. 3d at 899
(quoting Meister v. Mensinger, 178 Cal. Rptr. 3d 604, 618 (Cal. Ct. App. 2014)).
Nonrestitutionary disgorgement is unavailable in UCL actions. Id. (citations
omitted). Therefore, since the focus is on Chowning’s loss, the appropriate
calculation for restitution is the traditional restitution formula articulated supra.
5. Transaction percentage or “actual discount” is not available as a method
for calculating restitution.4 First, this measure would effectively seek damages
sounding in contract, not equity. “A UCL action is equitable in nature; damages
cannot be recovered.” Korea Supply, 63 P.3d at 943. Second, Chowning’s
argument for this form of restitution is based on standing cases. See, e.g., Hinojos
v. Kohl’s Corp., 718 F.3d 1098, 1103 (9th Cir. 2013). Standing and the calculation
of restitution have different standards. Kwikset, 246 P.3d at 894 (holding “the
4 This method argues that the appropriate measure of restitution would be to take the percentage discount implied on the tag (original price versus discount price), apply that percentage discount to the prevailing market price for the item, and then award the difference between that amount and the amount the plaintiff paid. 5 standards for establishing standing under section 17204 and eligibility for
restitution under section 17203 are wholly distinct”).
AFFIRMED.