NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NEMAN BROTHERS & ASSOC., INC., a 

California corporation, 

Plaintiff-Appellant, 

 v. 

ONE STEP UP, LTD., a New York 

corporation; et al., 

Defendants-Appellees.

No. 17-56876 

D.C. No. 

2:17-cv-06400-RGK-SS 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

R. Gary Klausner, District Judge, Presiding

Argued and Submitted March 6, 2019

Pasadena, California

Before: WARDLAW and BENNETT, Circuit Judges, and SESSIONS,** District 

Judge.

Neman Brothers & Associates, Inc. (“Neman”) brought an action for 

fraudulent inducement, breach of representations and warranties, and copyright 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable William K. Sessions III, United States District Judge 

for the District of Vermont, sitting by designation.

FILED

MAR 25 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

infringement against One Step Up Ltd., Harry Adjmi, Morris Tbeile, Ross Stores, 

Inc., and Factory Connection, LLC (collectively, the “defendants”). Neman 

appeals the district court’s grant of summary judgment in favor of the defendants.

We review de novo a district court’s grant of summary judgment. L.A. Printex 

Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841, 846 (9th Cir. 2012). “Summary 

judgment is appropriate only when, viewing the evidence in the light most 

favorable to the nonmoving party, the court concludes that there are no genuine 

issues of material fact with respect to the claims.” Taybron v. City & Cty. of San 

Francisco, 341 F.3d 957, 960 (9th Cir. 2003).

Neman claims that the defendants made fraudulent statements that induced it 

to enter into a settlement agreement between the parties. Pursuant to the settlement 

agreement, Neman is required to demonstrate that the alleged fraudulent statements 

were material. “A misrepresentation is judged to be ‘material’ if ‘a reasonable 

man would attach importance to its existence or nonexistence in determining his 

choice of action in the transaction in question.’” Engalla v. Permanente Med. 

Grp., Inc., 938 P.2d 903, 919 (Cal. 1997) (quoting Restatement (Second) of Torts 

§ 538(2)(a)). 

Neman failed to present any arguments or evidence below supporting its 

argument that the alleged misrepresentations were material. Therefore, the district 

court did not err in granting summary judgment on its fraudulent inducement 
3 

claim. The materiality arguments that Neman makes for the first time on appeal 

were waived. See Pac. Dawn LLC v. Pritzker, 831 F.3d 1166, 1178 n.7 (9th Cir. 

2016) (“But the plaintiffs did not raise that argument to the district court in their . . 

. opposition to the defendants’ motion for summary judgment, so the argument was 

waived.”).

The district court also properly granted summary judgment on Neman’s

claim for breach of representations and warranties because Neman failed to present 

any evidence of damages. See Durell v. Sharp Healthcare, 108 Cal. Rptr. 3d 682, 

697 (Ct. App. 2010) (resulting damages is a necessary element for a cause of 

action for breach of contract). Neman raises new arguments on appeal regarding 

its damages, but again, we decline to address these arguments because they were 

waived. See Pritzker, 831 F.3d at 1178 n.7.

Finally, Neman fails to present any evidence supporting its claim that the 

alleged infringing garments at issue here are not part of the garments that were 

released by the settlement agreement. Thus, because there is no genuine dispute 

that the alleged infringing garments are part of the garments that were released by 

the settlement agreement, we conclude that the district court properly granted 

summary judgment on Neman’s copyright infringement claims. 

AFFIRMED.