                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAY 05 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JOHN MURPHY; GREG MASTERS;                       No.   15-55047
ROBERTA WEISS, on behalf of
themselves and all others similarly              D.C. No.
situated,                                        2:07-cv-06465-AG-VBK

              Plaintiffs-Appellants,
                                                 MEMORANDUM*
 v.

BEST BUY STORES, L.P., a Virginia
Corporation,

              Defendant-Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                   Andrew J. Guilford, District Judge, Presiding

                     Argued and Submitted November 9, 2016
                              Pasadena, California

Before: O’SCANNLAIN, FERNANDEZ, and RAWLINSON, Circuit Judges.

      John Murphy, Greg Masters, and Roberta Weiss appeal the district court’s

orders dismissing various state law claims and granting summary judgment in



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
favor of Best Buy Stores, L.P. The facts are known to the parties and will not be

repeated here.

                                          I

      It appears that Murphy, Masters, and Weiss are barred from appealing the

district court’s February 11, 2011 order which dismissed some of Weiss’s claims

and all of Murphy and Masters’s claims against Best Buy.1 All three appellants

previously appealed such decision but never raised any arguments as to how the

district court erred. Murphy, 724 F.3d at 1223 n.1 (9th Cir. 2013) (effectively

dismissing such appeal by declining to review it). We reject this attempt to

relitigate their claims here. See Gausvic v. Perez, 392 F.3d 1006, 1008 n.1 (9th Cir.

2004) (noting that issues raised in a notice of appeal but never argued are deemed

abandoned).

                                          II

      Weiss argues that the district court erred in granting summary judgment

against her California consumer-protection claims, and we agree.

                                          A


      1
        The February 11, 2011 order dismissed their Minnesota Prevention of
Consumer Fraud Act claim, their claim for money had and received, and their
claim for declaratory relief. It also dismissed all of Murphy and Masters’s
California consumer-protection claims. See Murphy v. DirecTV, Inc., 724 F.3d
1218, 1223 n.1 (9th Cir. 2013).
                                          2
      California’s Unfair Competition Law (“UCL”) limits standing to plaintiffs

who have “suffered injury in fact and [have] lost money or property as a result of

the unfair competition.” Cal. Bus. & Prof. Code § 17204. The California Supreme

Court has explained that a consumer has standing under Section 17204 where he or

she has been persuaded to pay for a product by another’s alleged

misrepresentations. Kwikset Corp. v. Superior Court, 246 P.3d 877, 890 (Cal.

2011). Even if such consumer cannot establish that he or she paid an above-market

premium for a given product, “the consumer has purchased a product that he or she

paid more for than he or she otherwise might have been willing to pay” absent the

alleged misrepresentation. Id. (emphasis original). California’s UCL grants

standing where a consumer shows that he or she would not have entered into a

transaction but for an alleged misrepresentation. Id.

      The deposition testimony given by Weiss was sufficient to create a genuine

issue of material fact regarding the elements of standing under Section 17204.

There, she stated that she would not have paid money for a DirecTV receiver had

Best Buy not misrepresented the true nature of the transaction. The district court

pointed out, however, that Weiss gave testimony claiming that she may still have

leased the device from another supplier in any event and observed that Weiss never




                                          3
argued that Best Buy’s misrepresentations resulted in her paying a premium for the

receiver.

      Though Weiss provided testimony that both supported and discredited the

claim that she would not have paid for a television receiver but for the alleged

misrepresentations of Best Buy, we are satisfied that such testimony was sufficient

to survive a motion for summary judgment. A plaintiff’s burden, in any standing

inquiry, must be supported “with the manner and degree of evidence required at the

successive stages of litigation.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561

(1992). To survive a motion for summary judgement, a plaintiff need not

definitively establish standing. Rather, Weiss was only required to set forth

sufficient evidence to create a genuine issue of material fact concerning such

requirements. Cent. Delta Water Agency v. United States, 306 F.3d 938, 947 (9th

Cir. 2002). Her testimony did just that: because Weiss claimed that she would not

have paid for the receiver but for the alleged misrepresentations of Best Buy, she

set forth sufficient evidence to create a triable issue of material fact regarding the

elements of standing under Section 17204 of the UCL.

                                           B

      California’s Consumer Legal Remedies Act (“CLRA”) provides standing to

“[a]ny consumer who suffers any damage as a result of the use or employment by


                                            4
any person of a method, act, or practice” violating the state’s consumer protection

laws. Cal. Civ. Code § 1780(a). Relevant to this appeal, we have held that plaintiffs

who have standing under California’s UCL “will, a fortiori, have suffered ‘any

damage’ for purposes of establishing CLRA standing.” Hinojos v. Kohl’s Corp.,

718 F.3d 1098, 1108 (9th Cir. 2013). Weiss has set forth sufficient evidence to

create a triable issue of material fact regarding the elements of standing under the

CLRA.

                                          III

      We DISMISS the appeal of the district court’s February 11, 2011 order. We

REVERSE the district court’s grant of summary judgment on Weiss’s consumer-

protection claims, and REMAND to the district court for further proceedings on

those claims. The parties shall bear their own costs on appeal.




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