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holding that the plaintiff's "unjust enrichment claim also fails since [the defendant's] non-deceptive advertising does not entitle [the plaintiff] to restitutionary relief"
Summary of this case from In re 100% Grated Parmesan Cheese Mktg. & Sales Practices Litig.Opinion
No. 07-56534.
The parties stipulated to submission of the case on the briefs. The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed November 24, 2008.
Charles H. Cooper, Esquire, Rex H. Elliott, Esquire, Cooper Elliott, LLC, Columbus, OH, Evan Jason Smith, Esquire, Brodsky Smith, LLC, Bala Cynwyd, PA, for Plaintiff-Appellant.
Thomas Riordan, Esquire, O'Melveny Myers, LLP, Newport Beach, CA, for Defendant-Appellee.
Appeal from the United States District Court for the Central District of California, Dale S. Fischer, District Judge, Presiding. D.C. No. CV-07-02281-DSF.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Daniel Girard appeals from the district court's order granting Toyota Motor Sales, U.S.A., Inc.'s motion to dismiss for failure to state a claim. We affirm.
Girard's claims under California's Unfair Competition Law ("UCL") and Consumers Legal Remedies Act ("CLRA") are governed by the "reasonable consumer" test, requiring him to "show that members of the public are likely to be deceived." Williams v. Gerber Prods. Co., 523 F.3d 934, 938 (9th Cir. 2008) (internal quotation omitted); Consumer Advocates v. EchoStar Satellite Corp., 113 Cal.App.4th 1351, 8 Cal.Rptr.3d 22, 29 (2003). "The likely to be deceived standard requires a probability that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled." People ex rel. Dep't of Motor Vehicles v. Cars Causes, 139 Cal.App.4th 1006, 43 Cal.Rptr.3d 513, 521 (2006) (internal quotation omitted). Girard's negligent misrepresentation claim likewise hinges on the reasonable consumer standard since justifiable reliance cannot be established if reasonable consumers would not rely on the purported misrepresentation. See Glen Holly Entm't, Inc. v. Tektronix, Inc., 352 F.3d 367, 379 (9th Cir. 2003).
The district court correctly determined that Girard's allegations failed to state an UCL, CLRA, or negligent misrepresentation claim because a reasonable consumer would not be misled by Toyota's statements. Each of the two-page documents at issue includes numerous eligibility disclaimers and recommendations to seek professional tax advice, which put readers on notice of hybrid tax credit restrictions. See Freeman v. Time, Inc., 68 F.3d 285, 289-90 (9th Cir. 1995). As a result, reasonable consumers would not be deceived by the advertisements underlying each of Girard's claims. See id.; see also Williams, 523 F.3d at 939 (noting that an "advertisement itself [can] ma[k]e it impossible for the plaintiff to prove that a reasonable consumer was likely to be deceived").
We do not decide whether Girard lacks standing to sue under the UCL given his allegations fail to state a claim as a matter of law.
Girard cannot prevail under Rule 8 pleading standards, so it is not necessary to determine whether his claims must meet Rule 9(b) heightened pleading requirements.
Girard's unjust enrichment claim also fails since Toyota's non-deceptive advertising does not entitle him to restitutionary relief. See, e.g., Berryman v. Merit Prop. Mgmt, Inc., 152 Cal.App.4th 1544, 62 Cal.Rptr.3d 177, 188 (2007) (finding unjust enrichment claims based on the same facts failing to state an UCL claim must fail).