                                                                           FILED
                           NOT FOR PUBLICATION                             APR 01 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


CHRISTOPHER O’SHEA; GISELE                       No. 11-57105
ROGERS; JEFF ADAMS, individuals, on
behalf of themselves and all others              D.C. No. 2:09-cv-08063-PSG-CW
similarly situated,

              Plaintiffs - Appellants,           MEMORANDUM*

  v.

EPSON AMERICA, INC., a California
corporation; EPSON ACCESSORIES,
INC., a California corporation; SEIKO
EPSON CORPORATION, a Japanese
corporation,

              Defendants - Appellees.


                    Appeal from the United States District Court
                        for the Central District of California
                    Philip S. Gutierrez, District Judge, Presiding

                     Argued and Submitted December 3, 2013
                              Pasadena, California

Before: PREGERSON, BERZON, and CHRISTEN, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Plaintiffs appeal the district court’s partial summary judgment in favor of

Epson America Inc., Epson Accessories, Inc., and Seiko Epson Corporation

(collectively, “Epson”). We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

      We review de novo the district court’s ruling on a motion for summary

judgment. SEC v. CMKM Diamonds, Inc., 729 F.3d 1248, 1255 (9th Cir. 2013).

“Summary judgment may be affirmed on any ground supported by the record.”

Crowley v. Nev. ex rel. Nev. Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012).

      Plaintiffs allege that Epson failed to disclose material information about

Epson inkjet printers and ink cartridges. On its website, Epson discloses that it

tests ink cartridges in accordance with industry standards. The website also

discloses detailed information about how Epson calculates its ink cartridge testing

metric (ink yield) and states that no single standard duplicates a customer’s actual

printer usage.

      Under California law, a plaintiff alleging fraud by omission must establish

actual reliance by demonstrating “that had the omitted information been disclosed,

[he or she] would have been aware of it and behaved differently.” Mirkin v.

Wasserman, 858 P.2d 568, 574 (Cal. 1993). Here, Plaintiffs are unable to

demonstrate actual reliance because none of the Plaintiffs read Epson’s disclosures


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.     Because Plaintiffs cannot demonstrate actual reliance, Plaintiffs’ omission-

based claims fail.

      AFFIRMED.




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