NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
WENDY CHOWNING,

Plaintiff-Appellant,

v. KOHL’S DEPARTMENT STORES, INC.; KOHL’S CORPORATION; DOES, 1-20, inclusive, Defendants-Appellees. No. 16-56272 D.C. No. 2:15-cv-08673-RGK-SP
MEMORANDUM *

Appeal fromthe United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding Argued and Subm itted May 17, 2018 San Francisco, California Before: N.R. SMITH and FRIEDLAND, Circuit Judges, and LYNN, * * Chief District Judge. Wendy Chowning appeals the district court’s grant of sum m ary judgm ent to Kohl’s Departm ent Stores, Inc. and Kohl’s Corporation (collectively “Kohl’s”) in 

# FILED
JUN 18 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

* * The Honorable Barbara M. G. Lynn, Chief United States District Judge for the Northern District of Texas, sitting by designation.her putative class action regarding alleged advertising m isrepresentations. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm

. California’s Unfair Competition Law (UCL) 1 “is equitable in nature; dam ages cannot be recovered.” Korea Supply Co. v. Lockheed Martin Corp. , 63 P.3d 937, 943 (Cal. 2003). Rem edies are “generally lim ited to injunctive relief and restitution.” Id. (quoting Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co. , 973 P.2d 527, 539 (Cal. 1999)). Though restitution is possible, “[i] njunctions are ‘the prim ary formof relief available under the UCL to protect consum ers fromunfair business practices,’ while restitution is a type of ‘ancillary relief.’” K wikset Corp. v. Superior Court , 246 P.3d 877, 895 (Cal. 2011) (quoting In re Tobacco II Cases , 207 P.3d 20, 34 (Cal. 2009)). 2

1 The rem edies under the UCL and California’s False Advertising Law (FAL) are “interpreted in the sam e fashion and allow for the sam e type of relief.” In re Tobacco Cases II

, 192 Cal. Rptr. 3d 881, 887 n.2 (Cal. Ct. App. 2015). Sim ilarly, “[t] here is nothing to suggest that the restitution rem edy provided under the [Consum er Legal Rem edies Act (CLRA)] should be treated differently than the restitution rem edies provided under the [FAL] or [UCL] .” Colgan v. Leatherman Tool Grp., Inc. , 38 Cal. Rptr. 3d 36, 58 (Cal. Ct. App. 2006). Therefore, although we refer only to the UCL, this disposition is applicable to all three statutory schem e s at issue.

2 Another class action against Kohl’s has already been certified regarding injunctive relief. Therefore, with the “prim ary form of relief” gone, Chowning’s only additional rem edies are the “ancillary relief” found in restitution. Kwikset Corp. , 246 P.3d at 895. 21. The proper calculation of restitution in this case is price paid versus value

received. Under California law, where a plaintiff obtains value from the product, the proper m easure of restitution is “[t] he difference between what the plaintiff paid and the value of what the plaintiff received.” In re Vioxx Class Cases , 103 Cal. Rptr. 3d 83, 96 (Cal. Ct. App. 2009); see also In re Tobacco Cases II , 192 Cal. Rptr. 3d at 894. 3 Here, Chowning adm its that she received value. Therefore, the appropriate calculation for restitution is the price Chowning paid for the articles versus the value of the articles she received. 2. “Rule 56(c) m andates the entry of sum m ary judgm ent, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and

3 Chowning argues that we should follow our earlier decision in P ulaski & Middleman, LLC v. Google, Inc. , 802 F.3d 979, 988-89 (9th Cir. 2015). But she does not explain why Pulaskirequires a different result than the one we reach here. Pulaskiexplains that “[r] estitution is ‘the return of the excess of what the plaintiff gave the defendant over the value of what the plaintiff received.’” Id. at 988 (quoting Cortez v. Purolator Air Filtration Prods. Co. , 999 P.2d 706, 713 (Cal. 2000)). That is the sam e m easure of restitution identified by In re Tobacco Cases II and is the sam e m easure that applies here. To the extent that Pulaski is inconsistent with In re Tobacco Cases II , however, we m

ust follow In re Tobacco Cases II. In re Tobacco Cases II

was decided after P ulaski , and “[d] ecisions by state interm e diate appellate courts are data which are not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.” Dimidowich v. Bell & Howell , 803 F.2d 1473, 1482 (9th Cir. 1986) (quotation m arks and citation om itted). 3on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett ,

477 U.S. 317, 322 (1986). Here, Chowning failed to m eet her burden to prove she was entitled to restitution. First, Chowning’s expert testified that he was not expressing an opinion on retail value. Second, Chowning introduced no com petent evidence regarding the value of articles of clothing of sim ilar style, quality, etc. Restitution requires that the “value of what the plaintiff received” was m ore than what the “plaintiff paid.” In re Vioxx Class Cases , 103 Cal. Rptr. 3d at 96; see also In re Tobacco Cases II

, 192 Cal. Rptr. 3d at 894. Without evidence of the “value . . . received,” that calculation is im possible. Therefore, Kohl’s is entitled to

sum m ary judgm ent. 3. Rescission or “full refund” is unavailable in this case. “A full refund may be available in a UCL case when the plaintiffs prove the product had no value to them

. ” In re Tobacco Cases II , 192 Cal. Rptr. 3d at 895; see also Cortez , 999 P.2d at 713 (holding restitution is “the return of the excess of what the plaintiff gave the defendant over the value of what the plaintiff received”). If the product is truly valueless, then the “price paid m inus the value actually received equals the price paid.” In re Tobacco Cases II , 192 Cal. Rptr. 3d at 895. Chowning adm its that she received som e value fromthe articles of clothing and, thus, rescission is not available.

44. Disgorgem ent is unavailable in this case. Under California law, there are

two form s of disgorgem ent: “restitutionary disgorgem ent, which focuses on the plaintiff’s loss , and nonrestitutionary disgorgem e nt, which focuses on the defendant’s unjust enrichm ent.” In re Tobacco Cases II , 192 Cal. Rptr. 3d at 899 (quoting Meister v. Mensinger , 178 Cal. Rptr. 3d 604, 618 (Cal. Ct. App. 2014)). Nonrestitutionary disgorgem ent is unavailable in UCL actions. Id. (citations

om itted). Therefore, since the focus is on Chowning’s loss, the appropriate calculation for restitution is the traditional restitution form ula articulated supra . 5. Transaction percentage or “actual discount” is not available as a m ethod for calculating restitution. 4 First, this m easure would effectively seek dam ages sounding in contract, not equity. “A UCL action is equitable in nature; dam ages cannot be recovered.” Korea Supply , 63 P.3d at 943. Second, Chowning’s argum ent for this form of restitution is based on standing cases. See, e.g. , Hinojos v. Kohl’s Corp. , 718 F.3d 1098, 1103 (9th Cir. 2013). Standing and the calculation of restitution have different standards. Kwikset , 246 P.3d at 894 (holding “the

4 This m ethod argues that the appropriate m easure of restitution would be to take the percentage discount implied on the tag (original price versus discount price), apply that percentage discount to the prevailing m arket price for the item , and then award the difference between that am ount and the am ount the plaintiff paid. 5standards for establishing standing under section 17204 and eligibility for

restitution under section 17203 are wholly distinct”). AFFIRMED.

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