I agree with my colleagues’ conclusions that Paduano’s causes of action for breach of warranty under state and federal law are preempted by federal law. However, for the reasons set forth below I would affirm the order granting summary judgment. In my view, Paduano’s false advertising claims under the Consumers Legal Remedies Act (CLRA; Civ. Code, § 1750 et seq.) and unfair competition law (UCL; Bus. & Prof. Code, § 17200) are also preempted by the Energy Policy and Conservation Act of 1975 (EPCA), title 49 United States Code sections 32901 et seq. because those claims are necessarily predicated on Honda’s representations about fuel economy and the Honda Civic Hybrid’s asserted failure to meet the federal Environmental Protection Agency’s (EPA) estimates as to fuel economy. As I understand the claims suggested in the opposing summary judgment papers and on appeal, Paduano seeks to impose a legal duty on Honda to change its disclosures concerning fuel economy to something different from the EPA estimate. In such a case, 49 United States Code section 32919(a) and (b) of the EPCA expressly preempt enforcement of his UCL and CLRA causes of action. But I need not reach the question of federal preemption *1488because I would alternatively affirm summary judgment on grounds the so-called advertising statements relied upon by the majority were not alleged in Paduano’s complaint, and as a matter of law are not false or misleading, being—at best—nothing more than nonactionable puffery. Accordingly, I respectfully dissent from part III.C.2. of the majority opinion.
The advertising statements referenced by Paduano on appeal (and relied upon by the majority) are contained in a Honda Civic Hybrid brochure and read as follows:
“Just drive the Hybrid like you would a conventional car and save on fuel bills.”1
“IS THERE ANYTHING SPECIAL I HAVE TO DO? You just have to love saving money and getting terrific gas mileage.”
The majority concludes a finder of fact could determine these statements are misrepresentations or are misleading to the public in view of evidence presented by Paduano (in a supplemental opposing summary judgment declaration) that unspecified Honda representatives told him (1) that hybrids are more dramatically affected by outside influences such as driving habits and air conditioning, and “require a particular driving style in order to be fuel efficient, and short trips penalize hybrid efficiency more so than regular cars” and (2) “you cannot drive in a normal manner in order to get the mileage,” a normal manner being “[accelerating with the flow of traffic, stopping with the flow of traffic, accelerating as by law you’re supposed to [do] to get on the highway, being at highway speed at the time that you’re entering the first lane.” (Maj. opn., ante, at pp. 1471, 1472.) The majority also points to evidence of customer complaints about fuel economy, which “constitutes additional evidence that Honda’s advertising claims may be misleading, since a number of other drivers who presumably drove their vehicles as they would conventional vehicles were also apparently unable to achieve mileage close to the EPA estimates . . . .” (Maj. opn., ante, at pp. 1472-1473.) The majority also concludes these advertising claims are not preempted by the EPCA.
*1489I. Paduano’s Advertising Claims Seek to Impose Duties Relating to Fuel Economy Standards and Would Also Impose Requirements upon Honda to Advertise Mileage Estimates Different from EPCA Requirements
“When the issues regarding federal preemption involve undisputed facts, it is a question of law whether a federal statute or regulation preempts a state law claim and, on appeal, we independently review a trial court’s determination on that issue of preemption.” (Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1476 [38 Cal.Rptr.3d 653] (Smith); see also In re Farm Raised Salmon Cases (2008) 42 Cal.4th 1077, 1089, fn. 10 [72 Cal.Rptr.3d 112, 175 P.3d 1170]; Wholesale Electricity Antitrust Cases I & II (2007) 147 Cal.App.4th 1293, 1304 [55 Cal.Rptr.3d 253].) “ ‘As to each state law claim, the central inquiry is whether the legal duty that is the predicate of the [claim] constitutes a requirement or prohibition of the sort that federal law expressly preempts.’ ” (Smith, at p. 1476.)
As the majority points out, the EPCA contains an express preemption clause: “When an average fuel economy standard prescribed under this chapter is in effect, a State or a political subdivision of a State may not adopt or enforce a law or regulation related to fuel economy standards or average fuel economy standards for automobiles covered by an average fuel economy standard under this chapter.” (49 U.S.C. § 32919(a).) Subsection (b) of that section further states: “Requirements Must Be Identical.—When a requirement under section 32908 of this title is in effect, a State or a political subdivision of a State may adopt or enforce a law or regulation on disclosure of fuel economy or fuel operating costs for an automobile covered by section 32908 only if the law or regulation is identical to that requirement.” (49 U.S.C. § 32919(b).) Congressional intent is the touchstone, and thus these provisions guide the preemption analysis. (Altria Group, Inc. v. Good (2008) 555 U.S. _ [172 L.Ed.2d 398, 129 S.Ct. 538] (Altria); In re Farm Raised Salmon Cases, supra, 42 Cal.4th at pp. 1087-1092; Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 939 [63 Cal.Rptr.3d 50, 162 P.3d 569] .)2
In opposition to Honda’s motion for summary judgment, Paduano argued his claims were not preempted by Congress because they stemmed from the advertising and sale representations made in the marketing and service of the *1490vehicle. He pointed out that “Honda affirmatively represented, outside the EPA estimates, in the marketing brochure, that the vehicle would get 51 mpg.” He also asserted, based on Honda’s brochure, that Honda “represented that the subject vehicle could be driven like a conventional car and be fuel efficient before purchase . . . [and] [a]fter purchase, Honda told plaintiff that these vehicles require a ‘particular driving style’ to be fuel efficient.”3 Paduano also argued there was no preemption for affirmative misrepresentations and omissions under the CLRA; that “Honda’s post sale disclaimer of the warranty is a violation of the CLRA, and a triable issue of fact.”
On appeal, Paduano argues that “Honda’s Brochure clearly raised an issue of material fact as to whether Honda’s advertising materials were misleading or deceptive as to probably the most important reason consumers purchase Hybrids—the fuel economy.” He argues his claims speak only to Honda’s advertising of mileage, which is covered by but fails to comply with Federal Trade Commission requirements at 16 Code of Federal Regulations part 259. With regard to his specific CLRA and UCL claims and whether they are preempted, he argues, “The Brochure and the label are different documents. Only the latter is subject to preemption. The Trial Court erred in failing to consider the Brochure which clearly states that Paduano would get 51 mpg (in two inch letters), while driving it like a conventional car.” (Italics added.)
Paduano’s false advertising claims are plainly grounded on the expectation that with conventional driving, his Honda Civic Hybrid would meet the EPA mileage estimate of 51 mpg (miles per gallon) set out in Honda’s brochure (though Paduano’s particular vehicle has an EPA mileage rating of 48 mpg, as the brochure makes clear). Indeed, on appeal, Paduano maintains the brochure inaccurately inflates the mileage from 48 to 51 without stating that the EPA is the source of the mileage figure or indicating the number is an estimate. In other words, Paduano claims Honda’s brochure is false and/or misleading because it falsely suggests his vehicle would get the EPA mileage estimate of 51 mpg. I dispute the majority’s characterization of Paduano’s claims as involving the vehicle’s driving characteristics or driving style because it ignores the thrust of Paduano’s arguments. As I explain below, Paduano did not advance any such theory in his pleadings or discovery.
Because Paduano’s sought-after relief would require that Honda change its advertising to either eliminate or reduce the EPA mileage estimate, or include *1491additional disclosures relating to the EPA mileage estimate and his car’s fuel economy, his state law false advertising claims fail under express preemption principles as imposing a legal obligation “related to fuel economy standards” (49 U.S.C. § 32919(a); see Morales v. Trans World Airlines, Inc. (1992) 504 U.S. 374, 384, 388-390 [119 L.Ed.2d 157, 112 S.Ct. 2031] [interpreting phrase, “related to a price, route, or service of an air carrier . . .” in preemption clause of Airline Deregulation Act as preempting “State enforcement actions [for deceptive practices] having a connection with, or reference to, airline ‘rates, routes, or services’ . . . .”]) or they fail because they would impose disclosure requirements concerning fuel economy that are not identical to the EPCA. (49 U.S.C. § 32919(b); e.g., Riegel v. Medtronic, Inc. (2008) 552 U.S. _, _, - [169 L.Ed.2d 892, 128 S.Ct. 999, 1003, 1006-1008] [holding New York common law tort claims constituted “requirements” under the Medical Device Amendments (MDA), and as such were preempted by MDA preemption provision barring any state “ ‘requirement [!]... different from, or in addition to, any requirement applicable under this chapter’ ” and that “ ‘relates to the safety or effectiveness of the device . . .’ ”]; Morrison v. Viacom, Inc. (1997) 52 Cal.App.4th 1514, 1526 [61 Cal.Rptr.2d 544] [where Congress intends to preempt all state laws affecting a particular subject, it has employed language well suited to the task; statutes that expressly preempt state regulations that “ ‘relate to’ a given subject matter or field are indicative of an expansive preemptive intent”].) It is untenable to interpret title 49 United States Code section 32919(a) as preempting only laws related to the Corporate Average Fuel Economy (CAFE) program, or so-called CAFE standards for vehicle fleets. The section is disjunctive (“related to fuel economy standards or average fuel economy standards” (49 U.S.C. § 32919(a), italics added)). Interpreting the section in this manner ignores the breadth of the phrase “related to” and also renders superfluous the phrase “fuel economy standards.”
This conclusion as to preemption is not impacted by the fact that Paduano’s claims are made under consumer protection laws. A presumption against preemption is characteristically applied where the field is one that the states have traditionally occupied and regulated, but such a presumption is not triggered when the state regulates in an area where there has been a history of significant federal presence. (Wholesale Electricity Antitrust Cases I & II, supra, 147 Cal.App.4th at p. 1305, quoting Southern Cal. Edison Co. v. Public Utilities Com. (2004) 121 Cal.App.4th 1303, 1311-1312 [18 Cal.Rptr.3d 435]; see also Smith, supra, 135 Cal.App.4th at p. 1475.) In my view, the EPCA and its corresponding federal regulations reflect a significant federal *1492presence with respect to the measurement and disclosure of automobile fuel economy estimates and standards, as well as the advertising concerning a new vehicle’s fuel economy. (16 C.F.R. § 259 et seq. (2009); see Brett v. Toyota Motor Sales, U.S.A., Inc. (M.D.Fla., Sept. 15, 2008, No. 6:08-cv-1168-Orl-28GJK) 2008 WL 4329876 at pp. *6-*7.)4 “ ‘Federal regulations may preempt state law just as fully as federal statutes.’ ” (Smith, 135 Cal.App.4th at p. 1475, fn. 6.) I undertake my preemption analysis without applying a presumption against preemption.
The United States Supreme Court’s recent decision in Altria, supra, 555 U.S._[172 L.Ed.2d 398] has no application to this case. Altria addressed whether particular state law false advertising claims under the Maine Unfair Trade Practices Act (the Maine Act) were expressly or impliedly preempted by an entirely different statute: the Federal Cigarette Labeling and Advertising Act (the Labeling Act; 15 U.S.C. § 1331 et seq.). The preemption clause at issue in Altria provides: “ ‘[N]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.’ ” (Altria, supra, at p._ [172 L.Ed.2d at p. 407], italics added.) In two prior cases,5 the United States Supreme Court had narrowly construed this specific preemption provision, concluding “that the phrase ‘based on smoking and health’ modifies the *1493state-law rale at issue rather than a particular application of that rale.” (Altria, supra, at p._[172 L.Ed.2d at p. 408].)
In Altria, the respondent consumers, who were cigarette smokers, had alleged the petitioners, Philip Morris USA, Inc., and its parent company, Altria, falsely marketed their cigarettes as being “light” and containing lower tar and nicotine so as to convey to consumers that the products were less harmful than regular cigarettes. (Altria, supra, 555 U.S. at p._[172 L.Ed.2d at pp. 403—404].) They alleged petitioners violated the Maine Act by both fraudulently concealing information about unique design features of light cigarettes making their smoke more mutagenic, and affirmatively representing by use of the “light” and “lowered tar and nicotine” descriptors that their cigarettes would pose fewer health risks. (Altria, at p._[172 L.Ed.2d at p. 404].) Applying the “ ‘fair but narrow reading’ ” of the Labeling Act’s preemption clause as the Cippollone plurality had done (Altria, at p._[172 L.Ed.2d at p. 408]), the court concluded the respondents’ false advertising claims were not preempted because they were based on a “duty not to deceive as that duty is codified in the [Maine Act],” which has “nothing to do with smoking and health.” (Altria, at p._[172 L.Ed.2d at p. 408].)
Altria expressly distinguishes its analysis under the Labeling Act from other cases involving the type of broad preemption clause at issue in this case. The court emphasized that its decisions in American Airlines, Inc. v. Wolens (1995) 513 U.S. 219 [130 L.Ed.2d 715, 115 S.Ct. 817] (in turn relying on Morales v. Trans World Airlines, Inc., supra, 504 U.S. 374) and Riegel v. Medtronic, supra, 552 U.S._, respectively involved preemption provisions “much broader” than the Labeling Act’s or the type of state law rale Congress had intended to preempt. (Altria, supra, 555 U.S. at p._[172 L.Ed.2d at pp. 410-411].) Specifically, it noted that its conclusion in Wolens that the state law was preempted turned on the “unusual breadth” of the preemption provision; “We had previously held that the meaning of the key phrase . . . ‘ “relating to rates, routes, or services,” ’ is a broad one. [Citation.] . . . [W]e concluded that the phrase ‘relating to’ indicates Congress’ intent to pre-empt a large area of state law to further its purpose of deregulating the airline industry. [Citation.] Unquestionably, the phrase ‘relating to’ has a broader scope than the Labeling Act’s reference to rules ‘based on’ smoking and health; whereas ‘relating to’ is synonymous with ‘having a connection with,’ [citation], ‘based on’ describes a more direct relationship . . . .” (Altria, at p._[172 L.Ed.2d at p. 411], fn. omitted.) Similarly, the Altria court observed that in Riegel, 522 U.S. _, the plaintiff’s products liability claims “fell within the core of the MDA’s *1494pre-emption provision because they sought to impose different requirements on precisely those aspects of the device that the FDA had approved” and thus the Riegel plaintiff’s common law products liability claims “unquestionably sought to enforce ‘requirements] relating to safety or effectiveness’ under the MDA.” (Altria, at p._[172 L.Ed.2d at p. 412], italics added.)
Altria and Cipollone, on which Altria is based, are not fairly read to preclude federal preemption of Paduano’s false advertising claims under the EPCA’s broad preemption provision merely because his claims may be characterized as based on a duty not to deceive, codified by California’s UCL. Rather, as our state’s high court has recognized, under the Cipollone analysis applied by the court in Altria, one must examine each theory advanced by Paduano “to determine whether, as applied in the particular case, the claim based on that theory would impose a duty” related to fuel economy standards. (See In re Tobacco Cases II, supra, 41 Cal.4th at pp. 1271-1272.) Here, as I have explained, Paduano’s false advertising claims (which are at bottom based on allegations that Honda failed to disclose “defects” relating to fuel economy) seek to impose duties on Honda to alter its advertising with respect to its disclosure of fuel economy standards—precisely the matter governed by the EPCA. His claims fall directly within the EPCA’s preemptive reach.
II. Plaintiff’s Pleadings Do Not Encompass the Theories Relied upon on Appeal
Even assuming that Paduano’s claims for false advertising under the UCL and CLRA are not preempted, I would affirm summary judgment of those claims on the following alternative grounds.
All of Paduano’s causes of action, including those under the UCL and CLRA, are based on the claim that his 2004 Civic Hybrid had “defects,” which Paduano defines as “defects with the engine, defects with the fuel system, defects causing the vehicle to get reduced mileage.” Paduano’s allegations in support of his CLRA and UCL causes of action do not specify the nature of the false or deceptive representations, other than to apparently say Honda did not disclose defects in the vehicles. His CLRA cause of action appears to rely exclusively on his prior allegations as to a “defect” in the vehicle relating to reduced mileage. In his UCL cause of action, plaintiff alleges essentially that Honda publicized or advertised a defective product without disclosing that it was defective; or made false statements failing to “inform the public of known defects concerning the subject vehicle . . . .”
The Honda brochure at issue was subsequently addressed in plaintiff’s deposition. When asked what about the brochure was inaccurate, he stated, *1495“The mileage representation on how the car will perform.” Paduano also testified that the brochure influenced his decision to buy the hybrid Civic; that “[i]t supported the information that I had seen before I got to the dealership .... [f] ... [Tl That it was going to get 47 to 48 miles per gallon.” (Italics added.) Paduano denied in his deposition that “all the representations from American Honda concerning the gas mileage on the Civic Hybrid is the same as what is contained on the [window] sticker”; however, when asked whether he had seen any information different from what was contained in the window sticker, he answered, “I can’t recall.” He also testified in his deposition about the statements made to him by Honda service techs and service managers concerning the driving style one must use “in order to get the mileage.”6
Under settled summary judgment standards, the court reviewing the propriety of summary judgment is limited to assessing those theories alleged in the plaintiff’s pleadings. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1252 [32 Cal.Rptr.2d 223, 876 P.2d 1022]; Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648 [32 Cal.Rptr.3d 266]; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253-1258 & fn. 7 [78 Cal.Rptr.3d 372].) “ ‘The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues: the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.’ ” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381 [282 Cal.Rptr. 508].) Thus, a moving party’s summary judgment burden only “ ‘requires that he or she negate plaintiff’s theories of liability as alleged in the complaint. A “moving party need not ‘. . . refute liability on some theoretical possibility not included in the pleadings.’ ” ’ ” (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 332 [40 Cal.Rptr.3d 313].) A “ ‘plaintiff cannot bring up new, unpleaded issues in his or her opposing papers. . . .’ [Citations.] A summary judgment . . . motion that is otherwise sufficient ‘cannot be successfully resisted by counterdeclarations which create immaterial factual conflicts outside the scope of the pleadings.’ [Citation.] Thus, a plaintiff wishing ‘to rely upon unpleaded theories to defeat summary judgment’ must move to amend the complaint before the hearing.” (Oakland Raiders, at p. 648; see also County of Santa Clara, at p. 333; Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1664 [42 Cal.Rptr.2d 669]; Laabs. v. City of Victorville, supra, 163 Cal.App.4th at p. 1257.)7
*1496Here, Paduano is not entitled to raise claims based on the asserted “driving style” misrepresentations made within Honda’s brochure because they were neither specifically alleged in his complaint nor reasonably encompassed in its allegations. Nor were such theories of false advertising expressly raised by Paduano at his deposition (at least insofar as the record shows), as he testified only that he relied on the brochure to reach his belief that he would be getting 47 or 48 mpg in keeping with the EPA estimate. It was not until Paduano filed his summary judgment opposition papers that he hinted at the theory that the misleading advertisement is Honda’s brochure statement that one can drive the hybrid “like a conventional car” and still “save on fuel bills” and/or get outstanding mileage. Honda pointed out in its reply papers—and I agree—this was a new, unpleaded theory. It should not be warmly embraced by the majority, but disallowed.
Further, Paduano’s claim under the CLRA raised in his summary judgment opposing papers was only that Honda’s postsale disclaimer of the warranty was a violation of the CLRA and thus not preempted. Paduano did not raise Honda’s “driving style” advertisements as false or misleading under the CLRA, and he cannot do so for the first time on appeal. As for the UCL, Paduano’s opposing summary judgment papers suggest that the only advertising claims he contests are Honda’s assertions as to mileage in its brochure, not driving style. Paduano argues, “When Honda decided to advertise mileage claims separate and apart from the window sticker, it had an obligation to be truthful. When Honda stepped outside the four comers of the window sticker it lost even the pretense of preemption.” Plaintiff’s deposition testimony regarding the brochure, even construed in his favor, was that the brochure led him to believe he would receive 47 or 48 mpg while driving the car conventionally.
In view of the state of the pleadings and discovery, there is no basis to hold that Honda failed to meet its threshold summary judgment burden as to these advertising claims when Paduano did not identify any particular advertisement that he asserted was false and/or misleading to a reasonable consumer. The court in Laabs v. City of Victorville explained, “To allow an issue which has not been [pleaded] to be raised in opposition to a motion for summary *1497judgment in the absence of an amended pleading, allows nothing more than a moving target. For Code of Civil Procedure section 437c to have procedural viability, the parties must be acting on a known or set stage.” (Laabs v. City of Victorville, supra, 163 Cal.App.4th at p. 1258, fn. 7.) Honda had no reason to challenge Paduano’s false advertising theories when it had no notice Paduano was relying on such claims. “The complaint circumscribes the claims and theories the defendants must meet on a motion for summary judgment.” (Ibid.)
III. Paduano’s Evidence Does Not Raise a Triable Issue of Material Fact as to Whether the Alleged Brochure Representations Are Likely to Deceive a Reasonable Consumer
Unless an advertisement is directed to a particularly susceptible audience or specific group of consumers, a plaintiff claiming deceptive advertising under the CLRA and UCL bears the burden of proving that the defendant’s conduct or advertising is likely to deceive a “reasonable consumer.” (Benson v. Kwikset Corp. (2007) 152 Cal.App.4th 1254, 1275 [62 Cal.Rptr.3d 284]; Colgan v. Leatherman Tool Group, Inc. (2006) 135 Cal.App.4th 663, 682 [38 Cal.Rptr.3d 36]; Aron v. U-Haul Co. of California (2006) 143 Cal.App.4th 796, 806 [49 Cal.Rptr.3d 555]; Consumer Advocates v. EchoStar Satellite Corporation (2003) 113 Cal.App.4th 1351, 1360 [8 Cal.Rptr.3d 22] (EchoStar) [reasonable consumer standard applied to CLRA claims]; Lavie v. Procter & Gamble Co. (2003) 105 Cal.App.4th 496, 506-507 [129 Cal.Rptr.2d 486] [reasonable consumer standard applied to plaintiff’s UCL claim].) A reasonable consumer is “ ‘the ordinary consumer acting reasonably under the circumstances’ [citation], and ‘is not versed in the art of inspecting and judging a product, in the process of its preparation or manufacture ....’” (Colgan, at p. 682.) “ ‘Likely to deceive’ implies more than a mere possibility that the advertisement might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner. Rather, the phrase indicates that the ad is such that it is probable that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.” (Lavie v. Procter & Gamble Co., at p. 508.)
As the majority notes, under both the CLRA and UCL, “ ‘[a] perfectly true statement couched in such a manner that it is likely to mislead or deceive the consumer, such as by failure to disclose other relevant information, is actionable.’ ” (Aron v. U-Haul Co. of California, supra, 143 Cal.App.4th at p. 807, quoting Day v. AT & T Corp. (1998) 63 Cal.App.4th 325, 332-333 [74 Cal.Rptr.2d 55]; see also Nagel v. Twin Laboratories, Inc. (2003) 109 Cal.App.4th 39, 51 [134 Cal.Rptr.2d 420] [statement in connection with product or service must be untrue or, even if true, misleading]; Brockey v. Moore (2003) 107 Cal.App.4th 86, 99 [131 Cal.Rptr.2d 746].)
*1498Paduano’s summary judgment evidence does not squarely address the standard at issue: whether the Honda brochure assertions are matters upon which a reasonable consumer could be expected to rely in determining whether to purchase the vehicle, and whether an “appreciable number of reasonably prudent purchasers,” and not just isolated consumers, were likely to be deceived or misled by the advertisement. (See, e.g., Brockey v. Moore, supra, 107 Cal.App.4th at p. 99; Lavie v. Procter & Gamble Co., supra, 105 Cal.App.4th at p. 508.) While the record contains evidence of customer complaints, Honda emphasized that the complaints concerning gas mileage constituted only 0.7 percent of 2004 Honda Civic Hybrid owners in California, and there is nothing indicating whether these complaints related to the “driving style” assertions in Honda’s brochure.8
In any event, the Honda brochure’s assertion as to driving the hybrid conventionally and saving on fuel bills is true and basically definitional. By its nature, a hybrid vehicle “save[s] on fuel” (i.e., gasoline) because there are times while driving that the gasoline engine cuts off. The brochure itself points out that the electric motor adds its power to the output of the gasoline engine while accelerating, and also that, “At a stop, the engine cuts off automatically under most conditions to reduce fuel use and emissions, thanks to the idle-stop feature. It restarts itself when you’re ready to go.” Paduano himself admitted in his deposition that any car’s gas mileage would decrease with aggressive driving. His own deposition testimony bolsters the conclusion that Honda’s suggestion about driving the hybrid Civic like a conventional car is not likely to mislead a reasonable consumer.
Nor do the brochure’s assertions, in context, create false and misleading impressions to the reasonable consumer. The majority’s analysis unreasonably isolates the challenged sentence from the remainder of the brochure. (See fn. 1, ante.) Looking to the overall net impression of Honda’s brochure (see Brockey v. Moore, supra, 107 Cal.App.4th at p. 100 [the primary evidence in a false advertising case is the advertising itself]; e.g., F.T.C. v. Gill (C.D.Cal. 1999) 71 F.Supp.2d 1030, 1043), the statement “Just drive the [car] like you would a conventional car and save on fuel bills” relates not to driving style (i.e., aggressive versus nonaggressive driving) but to the absence of any need to plug the car into an outlet. Nevertheless, the majority’s theory—that the brochure is misleading because it suggests a person can drive the car in a “normal” or conventional manner and still get fuel economy close to the EPA estimate (a theory of deceptive advertising that was not suggested in *1499Paduano’s pleadings)—necessarily depends on plaintiff’s reliance on the accuracy of the EPA estimates set forth in the brochure. But, as the majority holds (maj. opn., ante, at pp. 1468, fn. 9,1470), such a claim is not actionable!
IV. The Alleged Misleading Advertisements Are Unspecific and Nonactionable Puffery
I would alternatively grant summary judgment in Honda’s favor on grounds the advertising statements at issue are mere unspecific, nonfactual assertions constituting nonactionable puffery.9
In Echostar, supra, 113 Cal.App.4th 1351, the plaintiff contended under the UCL and CLRA that the defendant providers of satellite television services made false and misleading statements in their brochure, namely, that their system provided “ ‘crystal clear digital video,’ ‘CD-quality’ audio, and an on-screen program guide which would allow a consumer to view the schedule ‘up to 7 days in advance,’ and that 50 channels would be provided.” (Id. at p. 1353.) The trial court granted summary judgment in the defendant’s favor. (Id. at p. 1358.)
Upholding the trial court’s reliance on the reasonable-consumer standard (Echostar, supra, 113 Cal.App.4th at p. 1360), the Court of Appeal found no triable issue of material fact on the plaintiff’s claim as to whether the representations about crystal clear digital video or CD-quality audio constituted misrepresentations about the quality or characteristics of goods or false advertising in violation of the CLRA, or were untrue, misleading or fraudulent under the UCL. (Echostar, at p. 1361.) The court stated: “ ‘Crystal clear’ and ‘CD quality’ are not factual representations that a given standard is met. Instead, they are boasts, all-but-meaningless superlatives, similar to the claim that defendants ‘love comparison,’ a claim which no reasonable consumer would take as anything more weighty than an advertising slogan.” (Ibid.) The court noted that the statements are “akin to ‘mere puffing,’ which under long-standing law cannot support liability in tort.” (Id. at p. 1361, fn. 3, citing Hauter v. Zogarts (1975) 14 Cal.3d 104, 111 [120 Cal.Rptr. 681, 534 P.2d 377].) The court explained that the “common experience of television watchers since the beginning of television is that no television delivery system is perfect. Broadcast is subject to interference and reception problems. Cable *1500goes out, usually at inconvenient times. Satellite systems, as plaintiffs have demonstrated, have their own problems.” (EchoStar, at p. 1361.)
The Ninth Circuit has held that the puffing doctrine applies to “ ‘claims [which] are either vague or highly subjective.’ [Citation.] The common theme that seems to run through cases considering puffery in a variety of contexts is that consumer reliance will be induced by specific rather than general assertions. ‘[Advertising which merely states in general terms that one product is superior is not actionable.’ [Citation.] ‘However, misdescriptions of specific or absolute characteristics of a product are actionable.’ ” (Cook, Perkiss & Liehe v. N. Cal. Collection Serv. (1990) 911 F.2d 242, 246.)
In the automobile promotional advertising context, other courts have found statements that “ ‘It won’t spoil the fun knowing that the Samurai handles differently than any ordinary passenger car’; and, the Suzuki 4x4 ‘has a nifty, go-getter engine, . . . and all the goodies of 4-wheel drive’ ” to be subjective descriptions not qualifying as a fraudulent representation of fact. (Connick v. Suzuki Motor Co. (1995) 275 Ill.App.3d 705 [212 Ill.Dec. 17, 656 N.E.2d 170, 183], reversed in part on other grounds (1996) 174 Ill.2d 482 [221 Ill.Dec. 389, 675 N.E.2d 584], and also disagreed with on other grounds in Chaurasia v. General Motors Corp. (Ct.App. 2006) 212 Ariz. 18 [126 P.3d 165, 171]; see also Gen. Motors Anti-Lock Brake Products Liability Lit. (E.D.Mo. 1997) 966 F.Supp. 1525, 1531 [GM advertisement that crash-avoidance systems such as anti-lock brakes, “ ‘ “[are] 99 percent more effective than protective systems” ’ ” such as air bags, because protective systems are rarely used, while “ ‘ “drivers frequently brake aggressively or make sudden road maneuvers to avoid hazards or collisions” ’ ” and “ ‘[a] driver is 100 times more likely to benefit from a vehicle’s crash-avoidance capabilities (such as anti-lock brakes) than from its crash-survival capabilities (such as air bags)’ ” held to be puffing; court held “such comparative claims, often involving large numbers, are puffing because a consumer cannot reasonably believe there is a test behind the claim”].)
Honda’s advertising statements as to driving the hybrid like a conventional car and saving on fuel bills or getting “terrific” gas mileage without doing anything “special” are nebulous, nonspecific assertions similar to those in the above-referenced cases. This is true even to the extent Honda’s advertisement attempts to compare the hybrid Civic to an unspecified conventional car. Such a comparison is puffery because it is “not falsifiable and therefore is not informative.” (August Storck K.G. v. Nabisco, Inc. (7th Cir. 1995) 59 F.3d 616, 618 [“A ‘comparison’ to a mystery rival is just puffery; it is not falsifiable and therefore is not informative.”].)
*1501Because the advertising statements assertedly placed in issue by Paduano are not actionable as a matter of law, I would affirm the summary judgment in Honda’s favor.
A petition for a rehearing was denied February 2, 2009.
This sentence appears in the following paragraph: “I NEVER HAVE TO PLUG IT IN, RIGHT? That’s correct—never. The charging system is completely self-sufficient so the powertrain automatically recharges the onboard batteries while you’re driving. Just drive the Hybrid like you would a conventional car and save on fuel bills.”
Given the significance of these statutory provisions to the analysis, I decline to follow or adopt the district court’s analysis in True v. American Honda Motor Co. (C.D.Cal. 2007) 520 F.Supp.2d 1175 because that opinion is without any discussion or application of the scope of the EPCA’s preemption clauses. As the majority observes, in assessing preemption, “deference should be paid to Congress’s detailed attempt to clearly define the scope of preemption under the [EPCA].” (In re Farm Raised Salmon Cases, supra, 42 Cal.4th at p. 1092 [speaking to implied preemption analysis].)
In his opposing summary judgment declaration, Paduano stated: “Prior to purchase Honda told me that the subject vehicle got 51 mpg in the brochure. Honda told me it could be driven like a conventional car and get outstanding fuel economy.” He also stated that after purchase, he learned hybrid vehicle estimates are inflated based on the test procedures, and “Honda failed to tell me that mileage and performance of the vehicle are dramatically effected use [sic] of the air conditioning, driving habits, windows up/down, and vehicle load, more than normal combustion engines.”
As for out reliance on Brett, in particular, 16 Code of Federal Regulations part 259.2 (2009) requires every manufacturer or dealer of any new automobile who makes any express or implied advertising representations concerning the fuel economy of the vehicle to disclose' the fuel economy estimates of the EPA and disclose the EPA as the source of those estimates. (16 C.F.R. § 259.2 (2009).) If an advertisement also contains a non-EPA fuel economy estimate or source, that estimate must be featured substantially less prominently than the EPA’s estimates. (16 C.F.R. § 259.2, subd. (c) (2009).) “Citing unpublished federal opinions does not violate our rules. (Cal. Rules of Court, mle 8.1115.)” (In re Farm Raised Salmon Cases, supra, 42 Cal.4th at p. 1096, fn. 18, italics omitted.)
Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504 [120 L.Ed.2d 407, 112 S.Ct. 2608] (Cipollone), decided by a plurality of justices, and Lorillard Tobacco Co. v. Reilly (2001) 533 U.S. 525 [150 L.Ed.2d 532, 121 S.Ct. 2404]. (See In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1267, fn. 2 [63 Cal.Rptr.3d 418, 163 P.3d 106].) In Cipollone, the plurality found preempted the plaintiffs’ failure to warn claims “insofar as it asserted that the tobacco companies’ ‘post-1969 advertising or promotions should have included additional, or more clearly stated, warnings.’ ” (In re Tobacco Cases II, at p. 1268, quoting Cipollone, at p. 524.) It did not preempt a failure to warn claim “insofar as that claim relied ‘solely on [the tobacco companies’] testing or research practices or other actions unrelated to advertising or promotion.’ ” (In re Tobacco Cases II, at p. 1268, quoting Cipollone, at pp. 524-525.) The Cipollone court found preempted plaintiffs’ fraud claim that the defendants “ ‘through their advertising, neutralized the effect of federally mandated warning labels,’ because that theory was ‘predicated on a state-law prohibition against statements in advertising and promotional materials that tend to minimize the health hazards associated with smoking.’ ” (In re Tobacco Cases II, at p. 1269, quoting Cipollone, 505 U.S. at p. 527.)
These comments amount to nothing more than the federally mandated statement in Honda’s label that “ ‘ACTUAL MILAGE will vary with options, driving conditions, driving habits and vehicle[’]s condition.’ ” (See maj. opn., ante, at p. 1459.)
In Laabs v. City of Victorville, supra, 163 Cal.App.4th 1242, the court stated that “factual issues presented in opposition to a motion for summary judgment should be considered if the controlling pleading, construed broadly, encompasses them. In making this determination, *1496courts look to whether the new factual issues present different theories of recovery or rest on a fundamentally different factual basis.” (Id. at p. 1257.) Here, Paduano’s opposing summary judgment arguments pertaining to Honda’s assertedly false or misleading advertising are not at all fairly encompassed in his complaint, which alleged Honda’s failure to disclose a “defect” causing the vehicle to get reduced gas mileage. Rather, in my view, Paduano’s opposing arguments raise fundamentally different factual grounds for his UCL and CLRA causes of action and should have been the subject of a motion for leave to amend. (163 Cal.App.4th at p. 1257.) In moving for summary judgment, Honda was not required to address factual theories that were not encompassed in Paduano’s operative complaint. (Id. at p. 1257, fn. 6 [in the absence of some request for amendment there is no occasion to inquire about possible issues not raised by the pleadings].)
In its summary judgment reply papers, Honda noted that it had disclosed in discovery responses that as of March 17, 2006, of 5,971 2004 Honda Civic Hybrids sold in California, only 44 owners (0.7 percent of owners) communicated with Honda concerning gas mileage; five of which pursued its certified arbitration program, five made a request for repurchase, and 34 made a general inquiry.
Concededly, Honda does not make this argument in its summary judgment papers or on appeal. That is because Paduano did not identify Honda’s advertising statements in his complaint. Honda was not required to address factual theories not alleged in, or reasonably encompassed by, the pleadings. (Laabs v. City of Victorville, supra, 163 Cal.App.4th at p. 1257, fn. 6.) Under the circumstances, I would afford the parties an opportunity to brief this issue. (Code Civ. Proc., § 437c, subd. (m)(2).)