NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 05 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
TRACY GRAY, individually, and on No. 12-55362
behalf of other members of the general
public similarly situated; JAY POST, D.C. No. 2:08-cv-01690-PSG-
individually, and on behalf of other VBK
members of the general public similarly
situated,
MEMORANDUM*
Plaintiffs - Appellants,
v.
TOYOTA MOTOR SALES, U.S.A., INC.;
TOYOTA MOTOR NORTH AMERICA,
INC.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted August 26, 2013
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: GOULD and RAWLINSON, Circuit Judges, and LEMELLE, District
Judge.**
Appellants Tracy Gray and Jay Post (collectively “Gray”) appeal the district
court’s grant of Appellees Toyota Motor Sales, U.S.A., Inc. and Toyota Motor
North America, Inc.'s (collectively “Toyota”) Federal Rule of Civil Procedure
12(b)(6) motion dismissing their claims with prejudice. We affirm.
Dismissal for failure to state a claim under Rule 12(b)(6) is reviewed de
novo. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012). Rule
12(b)(6) permits a complaint to be dismissed for failure to state a claim upon which
relief can be granted. Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550
U.S. 544, 552 (2007). Courts must consider the complaint in its entirety,
“accepting all factual allegations in the complaint as true and construing them in
the light most favorable to the nonmoving party”. Skilstaf, Inc. v. CVS Caremark
Corp., 669 F.3d 1005, 1014 (9th Cir. 2012). That being said, the “[f]actual
allegations must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. A plaintiff has an “obligation to provide the grounds of
his entitlement to relief, [and that] requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action.” Id. (internal quotations
**
The Honorable Ivan L. R. Lemelle, District Judge for the U.S. District
Court for the Eastern District of Louisiana, sitting by designation.
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omitted). Further, dismissal under Rule 12(b)(6) “can be based on the lack of a
cognizable legal theory or the absence of sufficient facts alleged.” UMG
Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1014 (9th Cir.
2013) (internal quotation marks omitted).
Gray alleges that Toyota's failure to disclose internal fuel economy data for
the Prius Hybrid–which varied from the marketed EPA fuel economy
estimates–violated: (1) California's Unfair Competition Law (UCL), Cal. Bus. &
Prof. Code § 17200; (2) California's Consumer Legal Remedies Act (CLRA), Cal.
Civ. Code § 1750(a) (5), (7); and (3) California's common law fraudulent
concealment laws.
As the district court correctly held, “[b]ecause [Gray] proceed[s] solely on a
‘pure-omission’ theory of liability, the viability of each of the three causes of
action alleged will turn on whether Toyota owed [Gray] a duty of disclosure.”
Gray v. Toyota Motor Sales, No. CV 08-1690, 2012 WL 313703, at *2 (C.D. Cal.
Jan. 23, 2012). We therefore turn to California law to determine whether Toyota
had a duty to disclose internal fuel economy data that was contrary to EPA
estimates.
When analyzing a UCL, CLRA, or fraudulent concealment claim, California
law instructs that a manufacturer's duty to consumers is limited to its warranty,
3
unless a safety issue is present or there has been some affirmative
misrepresentation. Daugherty v. Am. Honda Motor Co., Inc., 144 Cal. App. 4th
824, 834-35 (2006); see also Smith v. Ford Motor Co., 749 F. Supp. 2d 980, 988
(N.D. Cal. 2010) (dismissing CLRA claim because claim did not deal with a safety
concern and no affirmative misrepresentation was shown on the part of car
manufacturer). When applied to the fuel economy context, “[a]s a matter of law,
there is nothing false or misleading” about a car manufacturer's advertising that
identifies the EPA fuel economy estimates for the car. Paduano v. Am. Honda
Motor Co., 169 Cal. App. 4th 1453, 1470 (2009). Thus, no misrepresentation
occurs when a manufacturer merely advertises EPA estimates.
Gray is unable to establish that Toyota violated its duty under California
law. Gray does not allege that this case is governed by an existing warranty or that
any affirmative misrepresentations were made by Toyota. Rather, Gray only
claims that Toyota failed to disclose certain information known to it which
conflicted with EPA estimates. However, under the statutes pled, California law
does not recognize a cause of action for publicizing EPA fuel economy estimates
and omitting further explanation. See Paduano, 169 Cal. App. 4th at 1470.
Even if California law did allow for suits based on omissions relating to fuel
economy, Toyota marketed the Prius with valid EPA fuel economy estimates along
4
with the disclaimer “[a]ctual mileage may vary.” This further emphasizes the fact
that Toyota's marketing was not unfair, likely to deceive, or fraudulent under
California law. Cf. Davis v. HSBC Bank Nev., 691 F.3d 1152, 1169, 1171 (9th Cir.
2012) (affirming dismissal of UCL claim where advertisement included disclaimer
“other restrictions may apply”).1
AFFIRMED.
1
Because we conclude that California law does not support any of the
claims alleged, we need not engage in a choice of law analysis to determine if
California law can be applied to all Class members. See generally, Mazza v. Am.
Honda Motor Co., 666 F.3d 581 (9th Cir. 2012).
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