FILED
NOT FOR PUBLICATION JUN 04 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDUARDO LARIN, on behalf of himself No. 12-57288
and all others similarly situated,
D.C. No. 3:09-cv-01062-DMS-
Plaintiff - Appellant, JMA
v.
MEMORANDUM*
BANK OF AMERICA, NA,
Defendant - Appellee.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Argued and Submitted May 8, 2015
Pasadena, California
Before: PREGERSON, TALLMAN, and NGUYEN, Circuit Judges.
Eduardo Larin appeals the district court’s dismissal of his putative class
action complaint for failure to state a claim under Rule 12(b)(6) of the Federal
Rules of Civil Procedure. We have jurisdiction under 28 U.S.C. § 1291.
Reviewing dismissal on Rule 12(b)(6) grounds de novo, Dougherty v. City of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Covina, 654 F.3d 892, 897 (9th Cir. 2011), and denial of leave to amend for abuse
of discretion, Salameh v.Tarsadia Hotel, 726 F.3d 1124, 1129, 1133 (9th Cir.
2013), we affirm.
1. Larin’s claims under the Consumer Legal Remedies Act, Unfair
Competition Law, and False Advertising Law are evaluated under a “reasonable
consumer standard” by which he must “show that members of the public are likely
to be deceived.” Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008)
(internal quotation marks omitted). Larin alleges no affirmative
misrepresentations in connection with Bank of America’s overdraft protection
program (“ODP”) that would likely deceive a reasonable consumer. The
statements concerning the benefits of ODP are qualified, and Bank of America
disclosed that its general policy is “to provide availability of deposited funds next-
day,” though there is always a “risk that a deposited check may not clear.” Larin
deposited a $7,500 check, and the balance was made available to him by the next
day. When the check failed to clear, under the terms of ODP, Bank of America
covered payments made against that check with Larin’s linked credit card account
and charged him agreed-upon credit card fees. While Larin argues that enrollment
in ODP increased his risk of incurring fees because Bank of America would have
otherwise held his deposit up to eleven business days, the allegations in the
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complaint demonstrate that ODP worked in the manner disclosed in the Deposit
Agreement. Therefore, there were no affirmative misrepresentations that support
Larin’s claims.
2. The district court did not abuse its discretion in dismissing this case
with prejudice, given Larin’s multiple opportunities for amendment. United States
ex rel. Cafasso v. Gen. Dynamics C4 Sys, Inc., 637 F.3d 1047, 1058 (9th Cir. 2011)
(“[T]he district court’s discretion to deny leave to amend is particularly broad
where plaintiff has previously amended the complaint.” (quoting Ascon Props.,
Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989)).
AFFIRMED.
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