Nicholas Razo, on behalf of himself and all others similarly situated v. ASHLEY FURNITURE INDUSTRIES, INC., a Wisconsin corporation;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NICHOLAS RAZO, on behalf of himself
and all others similarly situated,
Plaintiff-Appellant,
v.
ASHLEY FURNITURE INDUSTRIES,
INC., a Wisconsin corporation; et al.,
Defendants-Appellees.
No. 17-56770
D.C. No.
2:16-cv-00630-MWF-MRW
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Submitted October 24, 2019**
Pasadena, California
Before: CALLAHAN, OWENS, and R. NELSON, Circuit Judges.
Nicholas Razo appeals from the district court’s summary judgment in favor
of defendant Ashley Furniture Industries, Inc. (“Ashley”) in his class action under
California’s Consumer Legal Remedies Act, Unfair Competition Law, and False
* 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).
FILED
OCT 28 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Advertising Law. We review de novo a district court’s decision to grant summary
judgment. Folkens v. Wyland Worldwide, LLC, 882 F.3d 768, 773 (9th Cir. 2018).
As the parties are familiar with the facts, we do not recount them here. We affirm.
The “reasonable consumer” test, which governs Razo’s claims, Ebner v.
Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016), requires him to demonstrate that
“members of the public are likely to be deceived” by Ashley’s representations
about DuraBlend furniture. Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir.
1995) (quotation omitted).
A defendant’s allegedly deceptive representations must be viewed
“reasonably and in context” to determine whether the material as a whole is
misleading. Id. at 290. Under this rule, this court presumes that consumers will
read “qualifying language [that] appears immediately next to the representations it
qualifies.” Id. at 289. However, consumers are not required to “look beyond
misleading representations on the front of the [tag] to discover the truth . . . in
small print on the side of the [tag].” Williams v. Gerber Prods. Co., 552 F.3d 934,
939 (9th Cir. 2008).
The district court properly granted summary judgment on Razo’s claims
because a reasonable consumer would have read the unambiguous and truthful
disclosures placed on the front and back of Ashley’s DuraBlend hangtag. Neither
of these disclosures is “hidden or unreadably small.” Freeman, 68 F.3d at 289.

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Indeed, the disclosure on the front of the hangtag appears “immediately next to” a
list of DuraBlend’s features. Id. A reasonable consumer reading that list of
features would also read those disclosures and discover that DuraBlend is not
genuine leather.
Furthermore, the hangtag’s disclosures were truthful and not deceptive.
Both disclosures truthfully state that DuraBlend (unlike other imitation products)
“contains . . . leather” without deceptively suggesting that DuraBlend contains
intact animal hides like genuine leather. The DuraBlend hangtag explicitly states
that DuraBlend is not and should not be represented as 100% leather. No
consumer, reading this disclosure reasonably and in context, would conclude that
DuraBlend is genuine leather.
The district court also correctly held that Ashley was not responsible for
representations made by the Casa Linda salesperson about DuraBlend. Claims
under California consumer protection law “cannot be predicated on vicarious
liability.” Perfect 10, Inc. v. Visa Int’l Serv., Ass’n, 494 F.3d 788, 808 (9th Cir.
2007) (citation omitted). Instead, Razo must prove Ashley’s “personal
participation in the unlawful practices and unbridled control” over those deceptive
practices. Id. (citation omitted).
Despite this difficult standard, Razo cited no evidence in his opposition to
summary judgment that would suggest Ashley exercised control over Casa Linda.

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A district court on summary judgment need not “search the entire record for a
genuine issue of fact” when the nonmoving party has failed to identify said
evidence in opposition. Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1029–
31 (9th Cir. 2001). Based on the evidence before it, the district court properly
declined to hold Ashley responsible for the actions of Casa Linda’s employees.
In sum, Razo failed to raise a genuine dispute that Ashley’s representations
about DuraBlend would likely deceive a reasonable consumer into believing that
DuraBlend is made of genuine leather. The district court therefore correctly
granted summary judgment in favor of Ashley.
AFFIRMED.

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