Greg Knowles v. Arris International Plc ( 2021 )

FILED
NOT FOR PUBLICATION
MAY 14 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREG KNOWLES; BRIAN No. 19-17468
ALEXANDER, Individually and on
Behalf of All Others Similarly Situated, D.C. No. 5:17-cv-01834-LHK
Plaintiffs-Appellants,
v. MEMORANDUM*
ARRIS INTERNATIONAL PLC,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Argued and Submitted April 15, 2021
San Francisco, California
Before: W. FLETCHER, RAWLINSON, and BADE, Circuit Judges.
Plaintiffs-Appellants Greg Knowles and Brian Alexander appeal the grant of
summary judgment in favor of Defendant-Appellee ARRIS International (ARRIS)
with respect to Plaintiffs’ claims for breach of the implied warranty of
merchantability, false advertising, and the failure to disclose a material defect, all
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
in violation of California statutory law. Reviewing the grant of summary judgment
de novo, we affirm. See Hauk v. JP Morgan Chase Bank USA, 552 F.3d 1114,
1117 (9th Cir. 2009).
1. The district court did not err when granting summary judgment in favor
of ARRIS on Plaintiffs’ claim of breach of the implied warranty of merchantability
under the Song-Beverly Act. See Cal. Civ. Code § 1791. Plaintiffs failed to raise a
material issue of fact regarding whether the SB6190 Modem failed to meet a
“minimum level of quality.” American Suzuki Motor Corp. v. Superior Ct., 37 Cal.
App. 4th 1291, 1296 (1995), as modified on denial of rehearing; see also Birdsong
v. Apple, Inc., 590 F.3d 955, 958 (9th Cir. 2009) (explaining that “[a] breach of the
warranty of merchantability occurs if the product lacks even the most basic degree
of fitness for ordinary use”) (citations and internal quotations marks omitted).
2. Summary judgment in favor of ARRIS was also appropriate on Plaintiffs’
false advertising claims under California’s False Advertising Law (FAL) (Cal. Bus.
& Prof. Code § 17500), Consumer Legal Remedies Act (CLRA) (Cal. Civ. Code §
1750-1757) and Unfair Competition Law (UCL) (Cal. Bus. & Prof. Code § 17200).
The district court properly concluded that the star ratings comparing the SB6190
modem to earlier models and the assertion that the SB6190 Modem would “deliver
the fastest speeds and most reliable connection to the Internet” constituted
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non-actionable puffery. See Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv.
Inc., 911 F.2d 242, 246 (9th Cir. 1990) (explaining that “[a]dvertising which
merely states in general terms that one product is superior,” or that a product’s
attribute is “far” superior to that of other products, “constitutes puffery and is not
actionable as false advertising”).
The district court also correctly concluded that ARRIS’s statements
regarding the SB6190 Modem’s compatibility with Comcast, “GIGABIT+
CABLE” capacity, “32 DOWNSTREAM CHANNELS,” and “SPEEDS UP TO
1.4 GBPS” were not demonstrably false. In addition, the disclaimer on ARRIS’s
packaging further tempered consumer’s expectations. See Brady v. Bayer Corp.,
26 Cal. App. 5th 1156, 1167 (2018) (explaining that when a claim is not false,
“qualifiers in the packaging can ameliorate any tendency of the label to mislead”);
see also Freeman v. Time, Inc., 68 F.3d 285, 290 (9th Cir. 1995) (affirming
dismissal of false advertising claim when a misleading “inference is unreasonable
in the context of the entire document”).
3. The district court did not err when granting summary judgment in favor
of ARRIS on Plaintiffs’ failure to disclose claims. Plaintiffs failed to raise a
material issue of fact that the identified defects prevented the SB6190 Modem from
performing a critical or integral function as a modem. The identified defects
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therefore were not material. See Rutledge v. Hewlett-Packard Co., 238 Cal. App.
4th 1164, 1174-75 (2015) (noting “a duty to disclose a material defect” which
prevented the product from performing a “critical” function that was “central and
necessary to the function” of the product); see also Collins v. eMachines, Inc., 202
Cal. App. 4th 249, 257-58 (2011) (requiring disclosure of defect preventing
performance of an “integral” function). In sum, ARRIS had no duty to disclose
non-material defects. See Hodsdon v. Mars, Inc., 891 F.3d 857, 860 (9th Cir.
2018) (explaining that in the absence of “physical defects that affect the central
function” of the product, manufacturers have no “duty to disclose”).1
4. Plaintiffs’ claims under the unlawful and unfairness prongs of the UCL
also fail. The district court correctly concluded that the unlawful prong required
violation of another law, and appropriately granted summary judgment because
Plaintiffs’ other claims failed. See Hodsdon, 891 F.3d at 865. Plaintiffs also failed
1
Plaintiffs focus on the word “affect” to argue that any defect which affects
a product’s central function requires disclosure. Hodsdon does not support this
argument. Specifically, we explained in Hodsdon that disclosure was required in
Collins and Rutledge because the identified defects “render[ed] those products
incapable of use by any consumer.” Hodsdon, 891 F.3d at 864. Here, Plaintiffs
were able to use the SB6190 Modem to play video games online and Skype by
video, with only occasional issues; and were able to browse the web and check
email with no issues. Plaintiffs’ own expert acknowledged that even if a cable
modem worked perfectly, a consumer could still experience the same issues
experienced by Plaintiffs.
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to raise a material issue of fact with respect to either of the two tests for
establishing unfairness. The district court properly concluded that ARRIS’s
statements or omissions were “not substantially injurious, immoral, or unethical”
or a violation of public policy. Id. at 866-67.
AFFIRMED.
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