Kaylee Browning v. Unilever United States, Inc.

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 18 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAYLEE BROWNING; SARAH BASILE, No. 19-55078
on behalf of themselves and all others
similarly situated, D.C. No.
8:16-cv-02210-AG-KES
Plaintiffs-Appellants,
v. MEMORANDUM*
UNILEVER UNITED STATES, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Submitted April 1, 2020**
Pasadena, California
Before: PAEZ, CALLAHAN, and VANDYKE, Circuit Judges.
Plaintiffs brought this putative class action alleging that certain Unilever-
owned St. Ives brand facial cleansers caused skin damage due to overly “deep”
exfoliation. Surviving a motion for summary judgment requires “probative evidence
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
tending to support the complaint.” Hexcel Corp. v. Ineos Polymers, Inc., 681 F.3d
1055, 1063 (9th Cir. 2012) (citation omitted). The district court concluded such
evidence was missing from the summary judgment record created by the parties. We
review de novo the district court’s order granting summary judgment. California v.
Iipay Nation of Santa Ysabel, 898 F.3d 960, 964 (9th Cir. 2018). We affirm.
The district court reviewed Plaintiffs’ evidence and concluded that, while
“Plaintiffs offer some factual support that St. Ives disrupts the stratum corneum, the
skin’s protective barrier,” they “haven’t shown that the alleged micro-tears
themselves are a safety hazard” or differ from the effects of standard exfoliation.
Browning v. Unilever U.S., Inc., No. SACV1602210AGKESX, 2018 WL 6615064,
at *2–3 (C.D. Cal. Dec. 17, 2018). We agree. Plaintiffs provided no summary
judgment evidence linking “micro-tears” caused by Unilever’s facial scrubs to any
concrete injuries. Dr. Nestor’s summary judgment declaration opined only that an
impaired stratum corneum “can increase chances” of a host of recognized long-term
health risks, but he was unable to observe or quantify any of those risks in his two-
week study. Moreover, Plaintiffs used the products for years and showed no
symptoms of the “dry irritated skin or infections” that Dr. Nestor warned could be
caused by micro-tears.
Plaintiffs’ failure to present summary judgment evidence linking use of the
product to actual injury undermines their fraudulent omission theories. See Williams
2
v. Yamaha Motor Co., 851 F.3d 1015, 1028–29 (9th Cir. 2017) (“[A] party’s
allegations of an unreasonable safety hazard must describe more than merely
‘conjectural and hypothetical’ injuries.”) (citation omitted); Hodsdon v. Mars, Inc.,
891 F.3d 857, 862 (9th Cir. 2018) (alternatively, a party must show “physical defects
that affect the central function” of the product). Similarly, Plaintiffs’ failure to show
actual injury undermines their other claims under California and New York law. See
Birdsong v. Apple, Inc., 590 F.3d 955, 958–60 (9th Cir. 2009) (requiring proof of
injury and causation under California implied warranty and unfair competition
laws); Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir. 2000) (requiring the same
under Sections 349 and 350 of New York General Business Law).1
The gravamen of Plaintiffs’ appeal, however, is their argument that the district
court erred by not considering on summary judgment supplemental expert evidence
later provided in support of their motion for class certification. But a nonmovant’s
burden at summary judgment is to “identif[y] the evidence establishing a genuine
issue of material fact in its opposition to summary judgment.” LVRC Holdings LLC
1
With regard to their claim that “Dermatologist Tested” on the products’ label is
misleading, Plaintiffs admitted that the statement is factually true, and the district
court did not err in concluding that, under California’s Consumer Legal Remedies
Act, neither the statement nor the alleged omission of harm was likely to mislead as
no substantiated safety hazard was concealed from purchasers. See Wilson v.
Hewlett-Packard Co., 668 F.3d 1136, 1143 (9th Cir. 2012).
3
v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009) (emphasis added) (citation omitted);
see also Fed. R. Civ. P. 56; C.D. Cal. R. 56-3. Plaintiffs did not do that here.2
Plaintiffs alternatively contend that the district court erred in only partially
granting their motion for a continuance to pursue further discovery under Federal
Rule of Civil Procedure 56(d). We review a district court’s case management
decisions for abuse of discretion. See O’Neill v. United States, 50 F.3d 677, 687–88
(9th Cir. 1995). The district court ultimately allowed a three-month continuance.
There was no abuse of discretion in denying Plaintiffs’ request for additional time.
See Stitt v. Williams, 919 F.2d 516, 525–26 (9th Cir. 1990) (affirming the denial of
Rule 56(d) and Rule 56(f) motions where the movant had adequate opportunity to
conduct discovery but still could not produce summary judgment evidence to
support its claims).
AFFIRMED.
2
Far from being reversable error, resolving dispositive motions before turning to
class certification, as the district court did here, is typically the “the proper course to
follow.” Corbin v. Time Warner Entm’t-Advance/Newhouse P’ship, 821 F.3d 1069,
1085 (9th Cir. 2016) (quoting Boyle v. Madigan, 492 F.2d 1180, 1182 (9th Cir.
1974)).
4