Ernest Franceschi, Jr. v. Harrah's Entertainment, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 28 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ERNEST JOSEPH FRANCESCHI, Jr., No. 11-15272
Attorney,
D.C. No. 2:10-cv-00205-RLH-RJJ
Plaintiff - Appellant,
v. MEMORANDUM*
HARRAH’S ENTERTAINMENT, INC., a
Delaware corporation; HARRAH’S
OPERATING COMPANY, INC., a
Nevada corporation,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Senior District Judge, Presiding
Argued and Submitted March 19, 2012
Las Vegas, Nevada
Before: CLIFTON, BYBEE, and N.R. SMITH, Circuit Judges.
Ernest Joseph Franceschi, Jr., appeals the district court’s sua sponte
dismissal of his complaint without leave to amend. We have jurisdiction under 28
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
U.S.C. § 1291 and we affirm.
The district court dismissed Franceschi’s claims under the California
Consumer Legal Remedies Act (“CLRA”) and the California Unfair Competition
Law (“UCL”) for two reasons: (1) Nevada law specifically allows the allegedly
unfair practices; and (2) Franceschi could not meet the “reasonable” or “ordinary”
consumer test under California law because he is, by his own admission, a
sophisticated consumer and not an average one. On appeal, Franceschi does not
address or acknowledge the district court’s second rationale, so he has waived his
challenge to the district court’s dismissal of the California statutory claims.1
Likewise, the district court dismissed Franceschi’s fraud claim for two reasons: (1)
he failed to allege facts sufficient to show the existence of a “special relationship”
between the parties that would give rise to a duty on defendants’ part to
affirmatively disclose certain facts; and (2) he likely could not prove justifiable
reliance. On appeal, Franceschi addresses only the reliance holding, so he has not
preserved his challenge to the district court’s dismissal of his common law fraud
claim. Cf. Hillis v. Heineman, 626 F.3d 1014, 1019 n.1 (9th Cir. 2010) (failure to
1
At oral argument, counsel was unable to cite to any page of the brief
challenging this ruling. Our own review of the brief confirms this. To the extent
Franceschi challenges the district court’s determination that he is a “sophisticated
card counter who could not possibly be deceived and therefore could not have
relied on Defendants’ advertising materials,” he is clearly addressing the district
court’s fraud ruling, rather than its CLRA/UCL ruling.
address each of the district court’s alternative holdings on appeal results in
waiver); Navellier v. Sletten, 262 F.3d 923, 948–49 (9th Cir. 2001) (issues not
supported by argument or citations to authorities and supporting documents in the
record are waived). We therefore do not reach the merits of this case.
AFFIRMED.