NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 28 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NICHOLAS RAZO, on behalf of himself No. 17-56770 and all others similarly situated, D.C. No. Plaintiff-Appellant, 2:16-cv-00630-MWF-MRW

v.

MEMORANDUM*

ASHLEY FURNITURE INDUSTRIES,

INC., a Wisconsin corporation; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding

Submitted October 24, 2019** Pasadena, California

Before: CALLAHAN, OWENS, and R. NELSON, Circuit Judges.

Nicholas Razo appeals from the district court’s summary judgment in favor

of defendant Ashley Furniture Industries, Inc. (“Ashley”) in his class action under

California’s Consumer Legal Remedies Act, Unfair Competition Law, and False

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Advertising Law. We review de novo a district court’s decision to grant summary

judgment. Folkens v. Wyland Worldwide, LLC, 882 F.3d 768, 773 (9th Cir. 2018).

As the parties are familiar with the facts, we do not recount them here. We affirm.

The “reasonable consumer” test, which governs Razo’s claims, Ebner v.

Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016), requires him to demonstrate that

“members of the public are likely to be deceived” by Ashley’s representations

about DuraBlend furniture. Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir.

1995) (quotation omitted).

A defendant’s allegedly deceptive representations must be viewed

“reasonably and in context” to determine whether the material as a whole is

misleading. Id. at 290. Under this rule, this court presumes that consumers will

read “qualifying language [that] appears immediately next to the representations it

qualifies.” Id. at 289. However, consumers are not required to “look beyond

misleading representations on the front of the [tag] to discover the truth . . . in

small print on the side of the [tag].” Williams v. Gerber Prods. Co., 552 F.3d 934,

939 (9th Cir. 2008).

The district court properly granted summary judgment on Razo’s claims

because a reasonable consumer would have read the unambiguous and truthful

disclosures placed on the front and back of Ashley’s DuraBlend hangtag. Neither

of these disclosures is “hidden or unreadably small.” Freeman, 68 F.3d at 289.

2 Indeed, the disclosure on the front of the hangtag appears “immediately next to” a

list of DuraBlend’s features. Id. A reasonable consumer reading that list of

features would also read those disclosures and discover that DuraBlend is not

genuine leather.

Furthermore, the hangtag’s disclosures were truthful and not deceptive.

Both disclosures truthfully state that DuraBlend (unlike other imitation products)

“contains . . . leather” without deceptively suggesting that DuraBlend contains

intact animal hides like genuine leather. The DuraBlend hangtag explicitly states

that DuraBlend is not and should not be represented as 100% leather. No

consumer, reading this disclosure reasonably and in context, would conclude that

DuraBlend is genuine leather.

The district court also correctly held that Ashley was not responsible for

representations made by the Casa Linda salesperson about DuraBlend. Claims

under California consumer protection law “cannot be predicated on vicarious

liability.” Perfect 10, Inc. v. Visa Int’l Serv., Ass’n, 494 F.3d 788, 808 (9th Cir.

2007) (citation omitted). Instead, Razo must prove Ashley’s “personal

participation in the unlawful practices and unbridled control” over those deceptive

practices. Id. (citation omitted).

Despite this difficult standard, Razo cited no evidence in his opposition to

summary judgment that would suggest Ashley exercised control over Casa Linda.

3 A district court on summary judgment need not “search the entire record for a

genuine issue of fact” when the nonmoving party has failed to identify said

evidence in opposition. Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1029–

31 (9th Cir. 2001). Based on the evidence before it, the district court properly

declined to hold Ashley responsible for the actions of Casa Linda’s employees.

In sum, Razo failed to raise a genuine dispute that Ashley’s representations

about DuraBlend would likely deceive a reasonable consumer into believing that

DuraBlend is made of genuine leather. The district court therefore correctly

granted summary judgment in favor of Ashley.

AFFIRMED.

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