Reynolds

MEMORANDUM **

Defendant Philip Morris filed this interlocutory appeal from the district court’s denial of its motion for summary judgment. We have jurisdiction under 28 U.S.C. § 1292 (b), and we reverse and remand.

The district court erred in concluding that California Civil Code § 1749.5 applies to Philip Morris’s “Marlboro Miles” promotional program. The little design on the cigarette pack that was to be cut out, saved, and eventually mailed in, is a proof of purchase, just like a cereal box top or an Ovaltine label. It is not a “gift certificate” as the term would ordinarily be understood. The ordinary meaning of “gift certificate” does not cover Marlboro Miles because Marlboro Miles are not typically given as gifts, are not certificates, and state no cash value. See American Heritage Dictionary of the English Language 742 (4th ed.2000) (defining “gift certificate” as a “certificate, usually presented as a gift, that entitles the recipient to select merchandise of an indicated cash value at a commercial establishment”); see also Synagogue v. United States, 482 F.3d 1058, 1061-62 (9th Cir.2007) (stating that when interpreting a statute, “we give undefined terms their ordinary…

I respectfully dissent. I agree with the district court that under the expansion of *399 coverage occasioned by the enactment of California Civil Code § 1749.5(d), “Marlboro Miles” constitute “gift certificates” within the meaning of that state statute.