Opinion · United States Court of Appeals for the Ninth Circuit
REYNOLDS v. PHILIP MORRIS USA, 332 Fed.Appx. 397 (9th Cir. 2009)
Cortney REYNOLDS, Plaintiff-Appellee, v. PHILIP MORRIS USA, INC.,Defendant-Appellant., 332 F. App'x 397 (9th Cir. 2009)
- Type
- Opinion
- Court
- United States Court of Appeals for the Ninth Circuit
- Jurisdiction
- Federal
- Date
- 2009-06-02
- Topic
- general
REYNOLDS v. PHILIP MORRIS USA, 332 Fed.Appx. 397 (9th Cir. 2009) Cortney REYNOLDS, Plaintiff-Appellee, v. PHILIP MORRIS USA, INC.,Defendant-Appellant. No. 08-55114.United States Court of Appeals, Ninth Circuit.Argued and Submitted April 17, 2009. Filed June 2, 2009. [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] Kyle R.
Citator
UpLaw has not yet analyzed REYNOLDS v. PHILIP MORRIS USA, 332 Fed.Appx. 397 (9th Cir. 2009). The absence of a flag is not a finding that it is good law.
REYNOLDS v. PHILIP MORRIS USA,332 Fed.Appx. 397(9th Cir. 2009)
Cortney REYNOLDS, Plaintiff-Appellee, v. PHILIP MORRIS USA, INC.,
Defendant-Appellant.
No. 08-55114.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 17, 2009.
Filed June 2, 2009.
Page 398
Kyle R. Nordrehaug, Norman B. Blumenthal, Blumenthal Markham, La Jolla, CA, for Plaintiff-Appellee.
Daniel Paul Collins, Fred Anthony Rowley, Jr., Esquire, Litigation Counsel, Gregory Paul Stone, Esquire, Munger, Tolles Olson LLP, Los Angeles, CA, Martin D. Bern, Munger Tolles Olson, LLP, San Francisco, CA, for Defendant-Appellant.
Daniel Paul Collins, Fred Anthony Rowley, Jr., Esquire, Litigation Counsel, Gregory Paul Stone, Esquire, Munger, Tolles Olson LLP, Los Angeles, CA, Martin D. Bern, Munger Tolles Olson, LLP, San Francisco, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California, John A. Houston, District, Judge, Presiding. D.C. No. CV-05-01876-JAH.
Before: SILVERMAN and CALLAHAN, Circuit Judges, and QUIST,fn*District Judge.
MEMORANDUMfn**
Defendant Philip Morris filed this interlocutory appeal from the district court's denial of its motion for summary judgment. We have jurisdiction under28 U.S.C. § 1292(b), and we reverse and remand.
The district court erred in concluding that California Civil Code §1749.5applies to Philip Morris's "Marlboro Miles" promotional program. The little design on the cigarette pack that was to be cut out, saved, and eventually mailed in, is aproof of purchase, just like a cereal box top or an Ovaltine label. It is not a "gift certificate" as the term would ordinarily be understood. The ordinary meaning of "gift certificate" does not cover Marlboro Miles because Marlboro Miles are not typically given as gifts, are not certificates, and state no cash value.SeeAmerican Heritage Dictionary of the English Language 742 (4th ed. 2000) (defining "gift certificate" as a "certificate, usually presented as a gift, that entitles the recipient to select merchandise of an indicated cash value at a commercial establishment");see also Synagogue v. United States,482 F.3d 1058,1061-62(9th Cir. 2007) (stating that when interpreting a statute, "we give undefined terms their ordinary meanings"). Moreover, the language of § 1749.5 confirms that covered gift certificates must have a "cash value" or "face value," Cal. Civ. Code. §§1749.5(b)(1), (b)(2), (d)(2), which the symbol excised from the empty cigarette pack does not. Because these proofs of purchase are just that — proofs of purchase — and not gift certificates, Cal. Civ. Code. §1749.5does not apply.
Furthermore, subsection (d)(1) of the statute does not define whatisa "gift certificate." Cal. Civ. Code. §1749.5(d)(1). That subsection merely identifies one way a true gift certificate may be distributed, but it does not suggest thatanyitem distributed in such a manner is in fact a gift certificate.
Finally, we express no opinion on whether Plaintiff has any other cause of action on account of the discontinuation of the Marlboro Miles promotion. We simply hold that Plaintiff has no claim under Cal. Civ. Code. §1749.5.REVERSEDandREMANDED.
CALLAHAN, Circuit Judge.
I respectfully dissent. I agree with the district court that under the expansion ofPage 399coverage occasioned by the enactment of California Civil Code §1749.5(d), "Marlboro Miles" constitute "gift certificates" within the meaning of that state statute.
The district court erred in concluding that California Civil Code §1749.5applies to Philip Morris's "Marlboro Miles" promotional program. The little design on the cigarette pack that was to be cut out, saved, and eventually mailed in, is aproof of purchase, just like a cereal box top or an Ovaltine label. It is not a "gift certificate" as the term would ordinarily be understood. The ordinary meaning of "gift certificate" does not cover Marlboro Miles because Marlboro Miles are not typically given as gifts, are not certificates, and state no cash value.SeeAmerican Heritage Dictionary of the English Language 742 (4th ed. 2000) (defining "gift certificate" as a "certificate, usually presented as a gift, that entitles the recipient to select merchandise of an indicated cash value at a commercial establishment");see also Synagogue v. United States,482 F.3d 1058,1061-62(9th Cir. 2007) (stating that when interpreting a statute, "we give undefined terms their ordinary meanings"). Moreover, the language of § 1749.5 confirms that covered gift certificates must have a "cash value" or "face value," Cal. Civ. Code. §§1749.5(b)(1), (b)(2), (d)(2), which the symbol excised from the empty cigarette pack does not. Because these proofs of purchase are just that — proofs of purchase — and not gift certificates, Cal. Civ. Code. §1749.5does not apply.
Furthermore, subsection (d)(1) of the statute does not define whatisa "gift certificate." Cal. Civ. Code. §1749.5(d)(1). That subsection merely identifies one way a true gift certificate may be distributed, but it does not suggest thatanyitem distributed in such a manner is in fact a gift certificate.
Finally, we express no opinion on whether Plaintiff has any other cause of action on account of the discontinuation of the Marlboro Miles promotion. We simply hold that Plaintiff has no claim under Cal. Civ. Code. §1749.5.REVERSEDandREMANDED.
CALLAHAN, Circuit Judge.
I respectfully dissent. I agree with the district court that under the expansion ofPage 399coverage occasioned by the enactment of California Civil Code §1749.5(d), "Marlboro Miles" constitute "gift certificates" within the meaning of that state statute.
- [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] ↩
- The Honorable Gordon J. Quist, U.S. District Judge for the Western District of Michigan, sitting by designation. ↩
- This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir R. 36-3. ↩