FILED NOT FOR PUBLICATION MAR 19 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

WEDI CORP., No. 20-35242

Plaintiff-Appellant, D.C. No. 2:15-cv-00671-TSZ

v. MEMORANDUM* BRIAN WRIGHT; HYDRO-BLOK USA LLC; SOUND PRODUCT SALES LLC; HYDROBLOK INTERNATIONAL, LTD.,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding

Submitted March 3, 2021** Seattle, Washington

Before: RAWLINSON and BYBEE, Circuit Judges, and ENGLAND,*** Senior District Judge.

* 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). *** The Honorable Morrison C. England, Jr., Senior United States District Judge for the Eastern District of California, sitting by designation. Plaintiff-Appellant wedi Corp. (Plaintiff or wedi) appeals the grant of

summary judgment in favor of Defendants-Appellees Brian Wright, Sound Product

Sales, LLC, Hydro-Blok USA LLC, and Hydroblok International, Ltd. (Defendants

or Hydro-Blok) with respect to Plaintiff’s claims for false advertisement in

violation of the Lanham Act and the Washington Consumer Protection Act (CPA).

Plaintiff also appeals the exclusion of the declarations of undisclosed witnesses and

the award of costs to Defendants. We review the district court’s grant of summary

judgment de novo and the exclusion of witness declarations for an abuse of

discretion. See Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1138 (9th

Cir. 1997) (summary judgment); Avila v. Willits Envtl. Remediation Tr., 633 F.3d 828, 835 (9th Cir. 2011) (declarations).

Plaintiff contends that the following three statements are literally false:

All Hydro-Blok Products Are IAPMO1 Tested and Certified. (IAPMO Statement).

Hydro-Blok Products Are ICC-ES2 Tested and Certified. (ICC-ES Statement).

1 IAPMO, International Association of Plumbing and Mechanical Officials, is an organization that develops the codes and standards governing the plumbing industry. 2 ICC-ES, International Code Council - Evaluation Service, is a non-profit company that performs technical evaluations of building products, components, methods, and materials. 2 What is HYDRO-BLOK? Put simply it is the easiest, quickest and most user-friendly way to build a water-proof shower or tub surround at a price you can afford. (Affordability Statement).

The Affordability Statement is non-actionable puffery.3 See Cook, Perkiss

& Liehe, Inc. v. N. California Collection Serv. Inc., 911 F.2d 242, 246 (9th Cir.

1990) (holding that an advertisement that “impl[ies] lower rates and better services

than those of a competitor . . . constitutes puffery and is not actionable as false

advertising”). We affirm the district court’s entry of summary judgment in favor

of Hydro-Blok on this claim.

To prevail, Plaintiff must establish that the IAPMO and ICC-ES Statements

were “literally false” as required by the Lanham Act, or had the “capacity to

deceive a substantial portion of the public,” as required by the CPA. Southland,

108 F.3d at 1139; Panag v. Farmers Ins. Co. of Washington, 204 P.3d 885, 894

(Wash. 2009) (en banc). Plaintiff attempted to establish that the IAPMO Statement

was literally false by speculating that products tested by IAPMO were not Hydro-

Block Products. Plaintiff acknowledges that IAPMO requires “appropriate

3 The district court did not abuse its discretion when striking Plaintiff’s declarations that merely challenged the accuracy of the Affordability Statement, and were untimely because Plaintiff failed to disclose the declarant witnesses prior to the witness disclosure deadline. See Avila, 633 F.3d at 835 (holding that the district “court did not abuse its discretion” when excluding declarations “because they were untimely” and not “otherwise admissible”). 3 production samples bearing the final appropriate markings,” and provided four

certificates indicating that Hydro-Blok products have been “tested by an IAPMO

R&T recognized laboratory.”

Despite this acknowledgment, Plaintiff contends that products tested by

IAPMO were not Hydro-Block products because: (1) some of the samples of the

products were shipped to IAPMO from a third party that did not manufacture

Hydro-Blok products; (2) the testing was conducted before the mass-marketing

manufacturing process was completed; and (3) the foam core in a tested

Hydro-Blok sample was blue when the core is now green. As the district court

concluded, this evidence does not support a justifiable inference that the products

tested by IAPMO were not Hydro-Blok products in view of the evidence

supporting the opposite inference. Therefore, we affirm the district court’s entry of

summary judgment in favor of Hydro-Blok on this claim.

Finally, the district court erred when granting summary judgment in favor of

Hydro-Blok with respect to the ICC-ES Statement. A material question of fact

exists as to whether Hydro-Blok’s products were tested by ICC-ES because

Plaintiff presented evidence that ICC-ES did not request product samples from

Hydro-Blok to test, but rather relied upon IAPMO’s tests. A legitimate claim

could be made that no testing of Hydro-Blok products was conducted by ICC-ES.

4 See Ariix, LLC v. NutriSearch Corp., 985 F.3d 1107, 1121 (9th Cir. 2021)

(explaining that an “actionable statement is a specific and measurable claim,

capable of being proved false”) (internal quotation marks omitted). Therefore, we

reverse the district court’s entry of summary judgment in favor of Hydro-Blok with

respect to this claim.

AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART,4

AND REMANDED.

4 Because the case is being reversed in part, the award of costs is vacated. See A.G. v. Paradise Valley Unified Sch. Dist. No. 69, 815 F.3d 1195, 1211 (9th Cir. 2016). Nevertheless, we note that the parties’ settlement agreement did not limit costs to those authorized by the Lanham Act or by the CPA. 5