Card v. Ralph Lauren Corporation ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 VICTORIA CARD, Case No. 18-cv-02553-JSC 9 Plaintiff, ORDER RE: DEFENDANTS’ MOTION 10 v. FOR SUMMARY JUDGMENT 11 RALPH LAUREN CORPORATION, et al., Re: Dkt. No. 148 Defendants. 12 13 14 Victoria Card sues the Ralph Lauren Corporation, Ralph Lauren Company West, LLC, and 15 E.J Victor Inc (Defendants) for their May 2015 termination of a business relationship.1 16 Defendants’ motion for summary judgment is now pending before the Court. (Dkt. No. 148.2) 17 After carefully considering the parties’ briefs and the relevant legal authority, the Court concludes 18 that oral argument is unnecessary, see Civ. L.R. 7-1(b), VACATES the September 29, 2021 19 hearing date, and GRANTS the motion for summary judgment. Plaintiff has not identified 20 evidence sufficient to create a genuine dispute of fact regarding her contract-based claims or her 21 Robinson-Patman Act claim; Defendants are therefore entitled to judgment on these claims as a 22 matter of law. 23 SUMMARY JUDGMENT EVIDENCE 24 In 2007, Victoria Card “opened a full, high-end furniture store, focused more, but not 25 entirely, on [Ralph Lauren Home] RLH products” in San Francisco called Pacific Heights Place. 26 1 Both parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 27 636(c). (Dkt. Nos. 6 & 9.) 1 (Dkt. No. 165 at ¶ 2.) Pacific Heights Place operated as a brick and mortar store selling home 2 furnishing products such as furniture, lighting, fabrics and accessories. (Id.) Plaintiff launched an 3 accompanying website in 2008. (Id.) Plaintiff offered “extraordinary personal service” to her 4 customers including 5 (a) mixing and matching various RLH Products to suit the client’s needs and taste, (b) helping customers to furnish whole rooms, and 6 even their entire home, (c) following through against factory delays and/or furniture that was damaged or otherwise compromised on 7 arrival to the customer, and (d) securing the highest quality and efficiency white-glove delivery. 8 (Id.) 9 During this period, Ralph Lauren licensed the RLH brand and related trademarks to E.J. 10 Victor for the manufacture and sale of RLH furniture. (Dkt. No. 147-4 at ¶ 2; Dkt. No. 174-4, Ex. 11 A.) According to E.J. Victor’s Chief Creative Officer and Chairman of the Board, John Jokinen, 12 E.J. Victor did not “enter into distribution agreements or long-term contracts with resellers or 13 customers. Rather, each purchase order gives rise to a transaction-specific contract for particular 14 items of furniture. Upon acceptance of a purchase order, E.J. Victor manufactures and ships the 15 item(s) to the reseller, which pays for and sells the item to the reseller’s customer.” (Dkt. No. 174- 16 4 at ¶ 2.) Under their business model, “[d]efendants can stop accepting new furniture orders from 17 a reseller at any time, for any reason, or no reason. Similarly, resellers can stop placing new orders 18 for furniture at any time, for any reason, or no reason.” (Id. at ¶ 3.) 19 Plaintiff had a reseller account with Defendants from 2007 to 2015 and purchased several 20 thousands of dollars—according to Plaintiff, a half a million dollars—in merchandise from 21 Defendants over those years. (Dkt. No. 148-1, Card Depo. at 251:2-3.) Plaintiff’s account was a 22 full-price, rather than off-price account. (Dkt. No. 148-1, Colgan Depo. at 25:5-9.) Full-price 23 accounts, such as Plaintiff’s, were only allowed to sell at discounts greater than 30 percent off the 24 Manufacturer’s Suggested Retail Price (MSRP) with prior authorization from Defendants and 25 such requests were considered on a case-by-case basis. (Dkt. No. 147-4 at ¶ 4.) Defendants’ 26 witnesses testified that during the period in question, it only had two off-price accounts: One 27 Kings Lane and TJX Companies, which were “used specifically to liquidate excess inventory.” 1 (Dkt. No. 147-4 at ¶ 5; Dkt. No. 148-1, Coglan Depo. at 24:6-14.) 2 In November 2013, Plaintiff received an email from Carly Conelli at Ralph Lauren 3 notifying her that “your account is not approved and we can no longer take any new order[s] from 4 you.” (Dkt. No. 166-10 at 4.) In response to Plaintiff’s email objecting to her account closure, Ian 5 Sears, the President of RLH, emailed Plaintiff stating, in part, that Plaintiff had previously been 6 notified that “the online sale of Ralph Lauren Home products by Pacific Heights Place on its 7 website has not been authorized by our company” and although Plaintiff was provided with the 8 “formal application for authorization of online sales,” Plaintiff did not submit such an application. 9 Because her unauthorized online sale of products had continued despite the lack of authorization, 10 “Ralph Lauren Home and its licensees will be discontinuing sales of Ralph Lauren Home products 11 to Pacific Heights Place.” (Dkt. No. 167-1.) Plaintiff responded that she had never received a 12 formal application, she was unaware of the issues, and she sought Mr. Sear’s assistance in “getting 13 my account back on track.” (Dkt. No. 167-2.) Mr. Sears responded the following day offering to 14 “defer the discontinuation of [Plaintiff’s] account pending [her] completion of [their] account 15 application process.” (Dkt. No. 167-3.) After “a months-long” “cooperative effort” to re-do her 16 website and despite “great praise,” Plaintiff was notified on May 8, 2015, that Defendants had “re- 17 evaluated its wholesale and ecommerce network” and terminated “the status of Pacific Heights 18 Place as an authorized Ralph Lauren Home dealer.” (Dkt. No. 165 at ¶ 13; Dkt. No. 171-4.) 19 PROCEDURAL BACKGROUND 20 In May 2017, two years after Ralph Lauren terminated the parties’ relationship, Plaintiff 21 sued Defendants in San Francisco Superior Court. (Dkt. No. 1-1.) Plaintiff alleged 11 claims for 22 relief: (1) breach of implied contract. (2) promises without intent to perform, (3) intentional 23 misrepresentation, (4) breach of the covenant of good faith and fair dealing, (5) violation of 24 fiduciary obligations, (6) intentional wrongdoing in violation of California Civil Code § 1708, (7) 25 intentional infliction of emotional distress, (8) discrimination in violation of the Unruh Act, (9) 26 violation of California Business and Professions Code § 17200, (10) violation of the Robinson- 27 Patman Act, and (11) RICO. Defendants removed the action to this Court based on diversity and 1 Over the next year and a half, there were several rounds of motion practice regarding the 2 sufficiency of the complaint. (Dkt. Nos. 32, 39, 47, 49, 58, 67.) Ultimately, on January 21, 2020, 3 the Court granted in part and denied in part Defendants’ motion to dismiss, allowing Plaintiff’s 4 contract-based claims to proceed and granting Plaintiff leave to amend her Robinson-Patman Act 5 claim (and the derivative Section 17200 claim). The Court dismissed the remaining claims with 6 prejudice. (Dkt. No. 87.) Plaintiff then filed her now-operative Fourth Amended Complaint. 7 (Dkt. No. 89.) 8 The parties thereafter sought and obtained several extensions of the case schedule. (Dkt. 9 Nos. 98, 110.) A week before the close of fact discovery, Plaintiff moved to extend the expert 10 discovery cut-off because she had not served any deposition notices prior to the deadline to do so. 11 (Dkt. Nos. 125, 135.) The Court granted the motion in part, allowing Plaintiff’s untimely Rule 12 30(b)(6) deposition to proceed, but no other depositions. (Dkt. No. 135.) 13 On July 29, 2021, Defendants filed the now pending motion for summary judgment. (Dkt. 14 No. 148.) After receiving multiple extensions of time to submit her opposition to Defendants’ 15 motion for summary judgment, Plaintiff submitted her opposition brief late, allegedly due to a 16 plumbing emergency and computer malfunction. (Dkt. Nos. 150, 152, 153, 154.) Upon review of 17 the opposition brief, the Court concluded that it was deficient in multiple respects, including that it 18 did not include citation or reference to any evidence. The evidence was instead set forth in 19 Plaintiff’s separately filed declaration, in violation of the local rules; the Court thus struck the 20 opposition brief and gave Plaintiff the opportunity to file a compliant brief. (Dkt. No. 159.) 21 Plaintiff subsequently filed a new opposition brief and Defendants filed their reply. 22 EVIDENTIARY OBJECTIONS 23 Both parties filed evidentiary objections in separate pleadings. (Dkt. Nos. 173, 175-1, 175- 24 2.) These separate filings violate Civil Local Rule 7-3(c) which requires that “[a]ny evidentiary 25 and procedural objections to the motion ... be contained within the [opposition] brief or 26 memorandum.” N.D. Cal. Civ. L.R. 7-3(a). “Courts in this district regularly strike separately-filed 27 evidentiary objections and responses for violating Local Rule 7-3.” Go Daddy Operating Co., LLC 1 (collecting cases re: same). The Court thus STRIKES the parties’ separate statements of 2 evidentiary objections. (Dkt. Nos. 173, 175-1, 175-2.) 3 DISCUSSION 4 Defendants move for summary judgment on Plaintiff’s four remaining claims: (1) breach 5 of contract – express or implied; (2) breach of the covenant of good faith and fair dealing; (3) 6 violation of the Robinson-Patman Act, 15 U.S.C. § 13; and (4) breach of California’s Unfair 7 Competition Law, Cal. Bus. & Prof. Code §§ 17200, et seq. In her opposition brief, Plaintiff 8 concedes that summary judgment is proper on her Section 17200 claim. (Dkt. No. 162 at 30.) 9 Accordingly, this Order focuses on her other three claims. 10 A. Breach of Contract 11 According to her opposition brief, the gist of Plaintiff’s contract theory is as follows: 12 Two days after Defendants in fact took a step to terminate Plaintiff’s account in November, 2013, Defendants offered, and Plaintiff 13 accepted, both in word and in conduct stretching almost a year, a compromise, basically in form and substance a contract to continue 14 the highly successful business arrangement the parties had previously enjoyed, IF Plaintiff complied with Defendants’ demands pertaining 15 to Plaintiff’s store and website, with such arrangement continuing as long as Plaintiff would “uphold the high standards for quality and 16 prestige that are associated with our products”, and “dependent upon continued satisfaction of (RL and EJV) guidelines”. 17 Pursuant to that agreement: (a) Three months later, Plaintiff’s store 18 was approved, without anything having been done to change it from the date of the agreement, (b) six months after that, the parties 19 ‘kicked-off” their extensive, and expensive, cooperative work on re- doing Plaintiff’s website, and (c) four months after that, Plaintiff 20 published the completed website, followed the next month by praise, both (i) to her directly, by the RL employee who worked most closely 21 with her on the website (Kwiatkowski), and (ii) in-house, by another involved member of the team (Strassburger), to others at RL involved 22 with the arrangement 23 (Dkt. No. 162 at 21.) Put simply, Plaintiff contends that the parties formed a contract in 24 November 2013 when Defendants offered to continue their “highly successful business 25 arrangement” with Plaintiff in exchange for Plaintiff making certain changes to her store and 26 website. While not clear, Plaintiff appears to assert that as a result of Plaintiff making those 27 changes, Defendants were required to sell product to her for as long as she wanted. 1 To establish a breach of contract under California law, a claimant must show: “(1) the 2 contract, (2) the [claimant’s] performance or excuse for nonperformance, (3) [the opposing 3 party’s] breach, and (4) the resulting damages to [the claimant].” Rutherford Holdings, LLC v. 4 Plaza Del Rey, 223 Cal. App. 4th 221, 228 (2014). “A cause of action for breach of implied 5 contract has the same elements as does a cause of action for breach of contract, except that the 6 promise is not expressed in words but is implied from the promisor’s conduct.” Yari v. Producers 7 Guild of Am., Inc., 161 Cal.App.4th 172, 182 (2008). 8 Defendants move for summary judgment on Plaintiff’s contract-based claims on the 9 grounds that the evidence does not support a finding of the first required element: that the parties 10 entered into a valid contract—express or implied. Defendants have met their initial summary 11 judgment burden. They identify evidence that shows that they did not enter into a long-term 12 agreement to sell product to Plaintiff; namely, deposition testimony and declarations testifying that 13 they did not enter into such an agreement and that they never enter into such agreements with any 14 resellers. See Nissan Fire & Marine Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). They 15 have also met their initial burden by showing that Plaintiff does not have enough evidence to 16 support a finding that a contract was made. See id. The burden thus moves to Plaintiff to identify 17 evidence that creates a genuine dispute of fact as to the existence of the alleged agreement. See id. 18 at 1003. Plaintiff has not met her summary judgment burden. 19 First, Plaintiff does not cite or reference any evidence in support of her contract theory. 20 Indeed, aside from the “FACTS” section at the beginning of Plaintiff’s opposition brief, she does 21 not cite any evidence in the remaining 18 pages of her brief, including in support of any of her 22 arguments. Her brief omits citation to evidence even though in the Court’s Order striking her 23 prior opposition brief, the Court specifically advised Plaintiff that “the factual evidence in support 24 of Plaintiff’s arguments must be referenced in her brief of no more than 25 pages and the reference 25 should cite with specificity where in the record that evidence is found.” (Dkt. No. 159 at 1.) It is 26 not the task “of the district court, to scour the record in search of a genuine issue of triable fact. 27 We rely on the nonmoving party to identify with reasonable particularity the evidence that 1 || Keenan, even in the portion of the brief which cites to evidence, Plaintiff's citation format is 2 nearly indecipherable, see, e.g., Dkt. No. 162 at 7:3-4 (citing “II-Dc,§[s18-Xb-A, 19-Xb-B, 21,Xb- 3 D, 27-Xb-I, 28-Xb-J & 29-Xb-K”)), and “[w]here this court has succeeded in locating the 4 || documents cited, it has repeatedly found that [Plaintiff] has referred us to conclusory allegations 5 made in her own affidavits and statements of fact presented to the district court, and to irrelevant 6 or inadmissible evidence.” Keenan, 91 F.3d at 1279. 7 Second, the Court has nonetheless found the email that apparently forms the basis of 8 || Plaintiffs contract claams—a November 22, 2013 email from Ian Sears to Plaintiff. The email is 9 || reprinted below: Message 10 From: Sears, lan (US) [lan.Sears@RalphLauren.com] Sent: 11/22/2013 5:01:24 PM 11 To: ‘vc@pacificheightsplace.com' [vc@pacificheightsplace.com] cc: Samson, Randy (US) [Randy.Samson@RalphLauren.com]; Li, William (US) [William.Li@RalphLauren.com] Subject: RE: In regards to William Li 12 Dear Ms. Card: In order to give you every opportunity to comply with our guidelines and requirements, we are willing to defer O 14 the discontinuation of your account pending your completion of our account application process. The process is S standard for all of our, and our licensees’, approved accounts, and the failure to remain in compliance with the 15 requirements is a basis on which we discontinue accounts. 2 A member of the Ralph Lauren Home team will provide you with the “bricks-and-mortar” component of the a 16 application. As you may know, we require a compliant bricks-and-mortar presence for all of our accounts, so this portion of the application precedes the application process for online sales. William Li will facilitate this = 17 process for you. 18 We do not plan on exercising our right to require you to discontinue online sales during the application process. However, together with your bricks-and-mortar application, we will include a list of violations we have previously noted on the Pacific Heights Place website. These violations will need to be rectified immediately, 19 and failure to do so will result in the denial of your application and discontinuation of sales to Pacific Heights Place. 20 Sincerely, 21 lan Sears RALPH LAUREN President, Home 625 Madison Ave., 9" Floor 23 New York, NY 10022 (212) 318-7104 24 25 (Dkt. No. 167-3.) Drawing all reasonable inferences in Plaintiff's favor, no rational trier of fact 26 || could find that this email constitutes an offer by Defendants to continue to sell to Plaintiff for as 27 long as she wishes, assuming she makes the required changes to her website. 28 “Under basic contract law ‘[a]n offer must be sufficiently definite, or must call for such 1 definite terms in the acceptance that the performance promised is reasonably certain.’” Ladas v. 2 California State Auto. Assn., 19 Cal. App. 4th 761, 770 (1993) (internal citation omitted). “To be 3 enforceable, a promise must be definite enough that a court can determine the scope of the duty 4 and the limits of performance must be sufficiently defined to provide a rational basis for the 5 assessment of damages.” Id. (internal citations omitted). Defendants’ willingness to “defer the 6 discontinuation of [Plaintiff’s] account pending your completion of our account application 7 process” (Dkt. No. 167-3) does not reasonably support an inference of a definite promise to 8 continue to sell Ralph Lauren products to Plaintiff for so long as she complied with Defendants’ 9 account requirements. Likewise, that Plaintiff was required to “rectif[y] immediately” certain 10 issues with her website or face denial of her application (id.), does not reasonably support an 11 inference that if she did rectify the issues, Defendants promised to sell Ralph Lauren products to 12 her indefinitely. By analogy, in the at-will employment context, to accept Plaintiff’s argument 13 would mean every time an employer puts an employee on an improvement plan, the employee’s 14 at-will status is converted to a guaranteed job so long as the Plaintiff satisfies the improvement 15 plan. Plaintiff is arguing that Defendants transformed their at-will business relationship to a 16 guaranteed long-term contract by giving her an opportunity to apply for permission to sell their 17 products online. No reasonable jury could find such an agreement on the record before the Court. 18 Plaintiff’s belief that she had an open-ended “until death do us part” contract with 19 Defendants based on her prior purchases of RLH merchandise (Dkt. No. 148-1, Card Depo. at 20 64:2-8), does not raise a genuine dispute of fact. Plaintiff admits that this purported agreement 21 was not memorialized in writing or orally. (Id. at 58:21-25; 133:24-134:5.) And the November 22 2013 email is insufficient to support a finding that Defendants held the same belief. See 23 Weddington Prods., Inc. v. Flick, 60 Cal. App. 4th 793, 811 (1998) (“[t]he parties’ outward 24 manifestations must show that the parties all agreed upon the same thing in the same sense. If 25 there is no evidence establishing a manifestation of assent to the ‘same thing’ by both parties, then 26 there is no mutual consent to contract.” (internal citation and quotation marks omitted)). 27 Third, Plaintiff’s alternative breach of implied contract claim fares no better as Plaintiff has 1 of a contract. See Yari v. Producers Guild of Am., Inc., 161 Cal. App. 4th 172, 182 (2008) (“A 2 cause of action for breach of implied contract has the same elements as does a cause of action for 3 breach of contract, except that the promise is not expressed in words but is implied from the 4 promisor’s conduct.”) Plaintiff appears to argue that following the November 2013 email from 5 Mr. Sears, she was advised that her account was approved and she then began the “extensive, and 6 expensive, cooperative work” re-doing her website, and that somehow this conduct created a 7 contract. (Dkt. No. 162 at 21.) This argument fails for two reasons. First, as with the express 8 contract claim, her brief does not cite any evidence in support of that conduct. And second, 9 assuming the evidence of the changes that were made and the cooperative work is in the record, at 10 best it would support an inference the parties agreed to continue their long-standing business 11 relationship. The existence of a long-standing business relationship, however, does not give rise 12 to an implied contract without evidence from which the terms of the agreement can be inferred. 13 See Plastic-View Int'l, Inc. v. Eastman Chem. Co., No. 14-07295 DDP MRWX, 2016 WL 370684, 14 at *2 (C.D. Cal. Jan. 29, 2016), aff’d, 706 F. App’x 375 (9th Cir. 2017) (“a long-standing business 15 relationship was insufficient to identify the essential terms of any alleged contract, such as the 16 products or quantities to be supplied, any agreed-upon price, or any duration of or means of 17 terminating the supposed supply contract.”). Construing the evidence in the light most favorable 18 to Plaintiff, no rationale trier of fact could find that Defendants’ conduct of allowing Plaintiff to 19 continue to purchase and resell its merchandise and providing guidance regarding how to fix her 20 website so that she could advertise their products online created an implied contract to do business 21 with her as long as she wished. Plaintiff’s analogy to quantum meruit (Dkt. No. 162 at 2) is not 22 persuasive as there is nothing in the record that suggests that any manufacturer, let alone these 23 defendants, would pay for whatever changes Plaintiff made to her website. 24 An implied contract case cited by Plaintiff, Gunther-Wahl Prods., Inc. v. Mattel, Inc., 104 25 Cal. App. 4th 27 (2002), demonstrates the inadequacy of Plaintiff’s showing. There the plaintiff 26 claimed that the parties had an implied contract that if the defendant used the plaintiff’s idea they 27 would pay the plaintiff for that use. The appellate court found that a jury could have found an 1 to it, the plaintiff’s expectation that he would be paid for presenting his idea, and evidence as to 2 the custom in the industry. Id. at 36. There is no evidence here that Defendants solicited Plaintiff 3 to sell their product, nor that it is the custom in the industry to give resellers such as Plaintiff an 4 indefinite promise to sell product; to the contrary, the evidence is undisputed that it is not 5 Defendants’ practice to ever enter into the type of agreement urged by Plaintiff. 6 *** 7 At bottom, Plaintiff’s contract theory is that “the party you purchased [inventory] from is 8 obligated to continually sell the product.” (Dkt. Nos 148-1, Card Depo. at 46:25-47:7; 72:18-23; 9 132:21-133:2.) That theory, however, has no basis in the law; rather, as Plaintiff repeatedly 10 testified, it is based on “ethics.” (Id.) A party’s view of what is ethical, however, is not a legal 11 ground for contract formation. As Plaintiff has failed to offer evidence which creates a dispute of 12 fact regarding whether the parties’ entered into an express or implied contract, Defendants are 13 entitled to judgment as a matter of law on her breach of contract claim. 14 B. Breach of the Implied Covenant of Good Faith and Fair Dealing 15 Plaintiff’s breach of the implied covenant of good faith and fair dealing claim is dependent 16 upon her breach of contract claim and thus fails as a matter of law as well. See Racine & Laramie, 17 Ltd. v. Dep’t of Parks & Recreation, 11 Cal. App. 4th 1026, 1032 (1992), reh'g denied and opinion 18 modified (Jan. 6, 1993), as modified on denial of reh'g (Mar. 25, 1993) (“There is no obligation to 19 deal fairly or in good faith absent an existing contract.”). 20 C. Robinson-Patman Act 21 The Robinson–Patman Act of 1936, 15 U.S.C. § 13, prohibits price discrimination that is 22 likely to have an anticompetitive effect. In essence, the Act makes it unlawful for a seller to 23 discriminate in price between purchasers of similar commodities when the price discrimination 24 results in competitive harm. See, e.g., Best Brands Beverage, Inc. v. Falstaff Brewing Corp., 842 25 F.2d 578, 584 (2d Cir. 1987). Accordingly, to state a claim under the Robinson–Patman Act, a 26 plaintiff must allege: (1) two or more contemporaneous sales by the same seller; (2) at different 27 prices; (3) of commodities of like grade and quality; (4) the discrimination had the requisite 1 Hose & Rubber Co., 511 F.2d 668, 677 (9th Cir. 1975). 2 The Robinson–Patman Act “does not ban all price differences charged to different 3 purchasers of commodities of like grade and quality[]; rather, the Act proscribes price 4 discrimination only to the extent that it threatens to injure competition.” Volvo Trucks N. Am., Inc. 5 v. Reeder-Simco GMC, Inc., 546 U.S. 164, 176 (2006) (internal citation and quotation marks 6 omitted). “Primary-line cases entail conduct—most conspicuously, predatory pricing—that 7 injures competition at the level of the discriminating seller and its direct competitors.” Id. In 8 contrast, secondary line cases such as this “involve price discrimination that injures competition 9 among the discriminating seller’s customers (here, [Ralph Lauren wholesalers]); cases in this 10 category typically refer to ‘favored’ and ‘disfavored’ purchasers.” Id. “A hallmark of the 11 requisite competitive injury, . . . is the diversion of sales or profits from a disfavored purchaser to 12 a favored purchaser.” Id. at 177. Alternatively, a plaintiff may allege that a favored competitor 13 received “a significant price reduction over a substantial period of time” to support a permissible 14 inference of competitive injury. Id. (internal citation and quotation marks omitted). 15 Defendants insist that they are entitled to judgment in their favor on Plaintiff’s Robinson- 16 Patman claim because (1) she has failed to offer evidence of two or more contemporaneous sales, 17 and (2) she has not offered evidence of injury to competition because the undisputed facts 18 demonstrate that Plaintiff and the other resellers she identifies are not similarly situated. See 19 Nissan Fire & Marine Ins. Co., 210 F.3d at 102 (a party moving for summary judgment may meet 20 its burden by showing “that the nonmoving party does not have enough evidence of an essential 21 element to carry its ultimate burden of persuasion at trial”). 22 1) No Evidence of Two or More Sales 23 The first requirement of a Robinson-Patman claim is evidence of “[t]wo or more 24 contemporaneous sales by the same seller.” Rutledge, 511 F.2d at 677 (internal citations omitted). 25 On this element, Plaintiff’s opposition brief states: “As to (1), Plaintiff herein has shown five such 26 sales.” (Dkt. No. 162 at 29.) Plaintiff, however, does not cite to evidence reflecting any such 27 sales. As discussed above, the Court need not, and will not, “scour the record in search of a 1 v. McDonnel-Douglas Corp., 904 F.2d 456, 458 (8th Cir. 1990) (explaining that the court need not 2 “speculate on which portion of the record the nonmoving party relies, nor is it obliged to wade 3 through and search the entire record for some specific facts that might support the nonmoving 4 party's claim”). Not only does Plaintiff’s opposition not cite to any such evidence, she testified 5 that she does not have such evidence: 6 Q: And so what I'm trying to determine is whether Ms. Card has any evidence or is aware of any evidence that, in fact, One 7 Kings Lane or anyone else purchased the same product from Ralph Lauren that you purchased from Ralph Lauren in a 8 circumstance where it was at or around the same time and they got a discount that you did not get. 9 A: We have not been shown any discovery on that. 10 (Dkt. No. 148-1, Card Depo. at 263:22-264:5) 11 Q Are you aware of any particular sales that you lost because the 12 Ralph Lauren branded stores were able to purchase at a deeper discount than you were? 13 A: I wouldn't have knowledge of that. If I saw their records, I might be able to help you. 14 Q: Are you aware of any sales that you lost because One Kings 15 Lane was able to purchase the same products you purchased at a deeper discount? 16 A: I would not know that unless I saw the records. 17 (Id. at 267:3-13.) At summary judgment, the nonmoving party “must present significant probative 18 evidence to support its claim or defense.” Intel Corp. v. Hartford Accident & Indem. Co., 952 19 F.2d 1551, 1558 (9th Cir. 1991) (internal citation and quotation marks omitted). 20 While not cited in Plaintiff’s opposition brief, Defendants note that Plaintiff’s declaration 21 references an Exhibit OOO which she attests “is a true and correct copy of OKL sales discounted 22 prices and prices I was charged for the same merchandise at or about the same time.” (Dkt. No. 23 165, Card Decl. at ¶ 87.) Exhibit OOO, however, is a collection of screenshots which appear to 24 show different furniture items for sale, but the source of the information in this document is not 25 clear, there are no dates, no way to tell that the same products are being identified, and no showing 26 of authenticity; in short, nothing which demonstrates that Exhibit OOO is either admissible or 27 probative evidence of anything. (Dkt. No. 171-7.) “[U]nauthenticated documents cannot be 1 (9th Cir. 2002). 2 Likewise, Plaintiff’s declaration which appears to list items that were sold by both Pacific 3 Heights Place and One Kings Lane in 2011 and 2012 is insufficient to create a dispute of material 4 fact on the issue of two or more contemporaneous sales because her declaration does not establish 5 that she has personal knowledge of the prices at which Defendants sold product to One Kings 6 Lane. (Dkt. No. 165, Card Decl. at ¶¶ 88, 91.) See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 7 1054, 1059 n. 5, 1061 (9th Cir. 2002) (holding that the district court properly disregarded the 8 declaration that included facts beyond the declarant’s personal knowledge and did not indicate 9 how she knew the facts to be true); F.T.C. v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 10 (9th Cir.1997) (“A conclusory, self-serving affidavit, lacking detailed facts and any supporting 11 evidence, is insufficient to create a genuine issue of material fact.”). 12 Because Plaintiff has failed to offer any evidence in support of the first element of her 13 Robinson-Patman Act claim, Defendants are entitled to judgment on this claim. 14 2) No Evidence of Injury to Competition 15 Plaintiff’s Robinson-Patman Act claim also fails because she has not shown an injury to 16 competition. “In order to establish the requisite competitive injury in a secondary-line case, 17 plaintiff must first prove that, as the disfavored purchaser, it was engaged in actual competition 18 with the favored purchaser(s) as of the time of the price differential.” Best Brands Beverage, Inc. 19 v. Falstaff Brewing Corp., 842 F.2d 578, 584 (2d Cir. 1987) (collecting cases); see also M. C. Mfg. 20 Co. v. Texas Foundries, Inc., 517 F.2d 1059, 1066 (5th Cir. 1975) (“to constitute a Robinson- 21 Patman wrong, the price discrimination must occur between competitors in comparable 22 transactions i.e., where persons receiving the different prices are in actual, functional competition 23 with one another and it must have the requisite effect upon actual or potential competition.”). 24 Plaintiff appears to identify One Kings Lane as the entity with whom Pacific Heights Place 25 was in competition; however, there is no evidence that Pacific Heights Place and One Kings Lane 26 were competitors. Plaintiff herself testified that as a “brick-and-mortar store” she did not have the 27 “capability” to operate like One Kings Lane. (Dkt. No. 148-1, Card Depo., 243:16-25; see also id. 1 but we were all selling the same product.”). Defendants, for their part, testified that they were not 2 in competition—One Kings Lane was an off-price account “which could liquidate large quantities 3 of discontinued and/or excess products” and Pacific Heights Place, as a full-price account, was not 4 “permitted to sell RLH furniture products at more than 30% below MSRP on a regular basis.” 5 (Dkt. No. 147-4, Jokinen Depo. at ¶¶ 4, 5; see also Dkt. No. 148-1, Colgan Depo. at 25:5-19 6 (testifying that Pacific Heights Place was a “full-price account…[t]he expectation of full-price 7 accounts is that they are not advertising the brand at a discounted price.”); Id. at 35:4-13 8 (testifying that One Kings Lane was “considered an off-price account because they were primarily 9 a promotion website and, you know, sold off excess…inventory.”).) 10 Plaintiff has not offered any evidence to rebut this showing and instead argues: 11 Plaintiff WAS in functional competition with OKL, simply because the sales information produced by Defendants show that, for all the 12 David vs. Goliath differences between them, the sales figures for Plaintiff and OKL were roughly comparable, but also because, as 13 shown by those numbers, as well as by the obvious facts of online retail commerce of which the court is requested to take Judicial Notice 14 [under FRE 201(b)], that an effect of the internet is to allow retail sellers much greater ability to compete with much larger sellers - 15 largely due to Aps such as Google AdWords which can make smaller sellers often as likely to appear in a search as larger ones [especially 16 in narrow markets as herein], such that size and other differences, especially geographic are minimized, and superior quality of a smaller 17 seller is therefore more likely to be available to customers anywhere on the planet, at any time. 18 (Dkt. No. 162 at 20.) As discussed above, the Court need not, and will not, “scour the record in 19 search of a genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). To 20 the extent that Plaintiff asks the Court to take judicial notice of the “obvious facts of retail 21 commerce,” such a request is improper. While courts may judicially notice an adjudicative fact if 22 it is not subject to reasonable dispute because it: “(1) is generally known within the trial court’s 23 territorial jurisdiction; or (2) can be accurately and readily determined from sources whose 24 accuracy cannot reasonably be questioned” see Fed. R. Evid. 201(b), Plaintiff’s vague reference to 25 the “obvious facts of retail commerce” fails to satisfy any aspect of this standard. Plaintiff has 26 thus failed to offer any evidence that she and One Kings Lane were similarly situated competitors. 27 *** 1 Accordingly, as Plaintiff has failed to offer evidence which creates a dispute of fact 2 || regarding her Robinson-Patman Act claim, Defendants are entitled to judgment as a matter of law 3 || this claim. 4 CONCLUSION 5 For the reasons stated above, Defendants’ motion for summary judgment is GRANTED. 6 || (Dtk. No.148.) 7 The parties’ administrative motions to seal are GRANTED. (Dkt. Nos. 147, 161.) 8 Judgment will be entered in Defendants favor by separate order. 9 10 IT IS SO ORDERED. 11 Dated: September 27, 2021 Jesus St □ CQWUELINE SCOTT CORL United States Magistrate Judge 16 18 19 20 21 22 23 24 25 26 27 28