Clemens v. Daimlerchrysler

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEITH CLEMENS, individually and  No. 06-56410
on behalf of all others similarly D.C. No.
situated, CV-05-08484-JFW
Plaintiff-Appellant,
v.  ORDER
AMENDING
DAIMLERCHRYSLER CORPORATION, OPINION AND
Defendant-Appellee. AMENDED
 OPINION
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted
April 11, 2008—Pasadena, California
Filed June 19, 2008
Amended July 24, 2008
Before: William C. Canby, Jr. and Jay S. Bybee,
Circuit Judges, and Roger L. Hunt,* District Judge.
Opinion by Judge Canby
*The Honorable Roger L. Hunt, Chief United States District Judge for
the District of Nevada, sitting by designation.
9123
9126 CLEMENS v. DAIMLERCHRYSLER CORP.
COUNSEL
John F. Edgar, Kansas City, Missouri, for the plaintiff-
appellant.
Frederick D. Baker, Sedgwick, Detert, Moran & Arnold, LLP,
San Francisco, California, for the defendant-appellee.
CLEMENS v. DAIMLERCHRYSLER CORP. 9127
ORDER
This court’s mandate of July 13, 2008, is RECALLED.
The opinion of this court filed on June 19, 2008, slip op.
at 7095, is amended as follows:
1. At slip op. at 7103, amend the second sentence of the
first paragraph of Subsection B (beginning “In California, a
plaintiff . . .”), so that it states:
Under California Commercial Code section 2314,
the implied warranty provision invoked by Clemens,
a plaintiff asserting breach of warranty claims must
stand in vertical contractual privity with the defen-
dant.
2. At slip op. at 7104, amend the second-to-last textual
sentence of Subsection B so that it states:
Nonetheless, California courts have painstakingly
established the scope of the privity requirement
under California Commercial Code section 2314,
and a federal court sitting in diversity is not free to
create new exceptions to it.
The amended opinion, incorporating these changes, fol-
lows.
The mandate shall issue forthwith.
OPINION
CANBY, Circuit Judge:
Keith Clemens1 brought this class action against Daimler-
1
The parties have stipulated to the dismissal of claims by another named
plaintiff, James Beirne.
9128 CLEMENS v. DAIMLERCHRYSLER CORP.
Chrysler Corporation alleging that DaimlerChrysler breached
express and implied warranties and committed fraud in the
sale of Dodge Neon cars containing defective head gaskets
from 1995 to 1998. The district court granted DaimlerChrys-
ler’s Rule 12(b)(6) motion to dismiss the warranty claims. It
also granted DaimlerChrysler’s motion for summary judg-
ment on the fraud claims, holding that one claim was barred
by the statute of limitations and the other failed on the merits.
Clemens appealed all of these rulings, and we affirm.
FACTS
Clemens bought a new 1998 Dodge Neon from an indepen-
dent Dodge dealership. After driving the car for approxi-
mately 50,000 miles, Clemens noticed that the engine had
begun to leak oil. The oil leak worsened, and when the odom-
eter reached 60,000 miles, Clemens performed some research
on the internet and learned that head gasket failure (and
resulting oil leaks) were a common problem on this model
automobile.
In September 2002, a Chrysler-authorized service center
referred Clemens to a customer service hotline, which denied
his request for a repair discount. Rather than pay for the
repair, Clemens replaced the head gasket himself at a cost of
$70, videotaping the repair process. He claims that, had he
known the head gasket was likely to fail, he would not have
purchased a Dodge Neon.
DaimlerChrysler provided the following express warranty
with the automobile:
The Basic Warranty covers the cost of all parts and
labor needed to repair any defective item on your
vehicle that was supplied by Chrysler—that is,
defective in material, workmanship or factory prepa-
ration. There is no list of covered parts since the only
exception is tires. You pay nothing for these repairs.
CLEMENS v. DAIMLERCHRYSLER CORP. 9129
These warranty repairs or adjustments—including all
parts and labor connected with them—will be made
by your dealer at no charge, using new or remanu-
factured parts.
This warranty was expressly limited in duration to 36 months
from the date of purchase, or 36,000 miles on the odometer,
whichever occurred first.
Clemens filed his class action in December 2005, alleging
that DaimlerChrysler breached express and implied warranties
under state law and under the Magnuson-Moss Act, 15 U.S.C.
§ 2310. Clemens also alleged that DaimlerChrysler had fraud-
ulently failed to disclose the head gasket problem under Cali-
fornia’s common law fraud statute, Cal. Civ. Code §§ 1709-
1710,2 and California’s Unfair Competition Law (UCL) stat-
ute, Cal. Bus. & Prof. Code § 17200.
The district court dismissed the express warranty claim
because the head gasket failure did not occur until after the
express warranty period had expired. The implied warranty
claim was dismissed for lack of contractual privity between
DaimlerChrysler and Clemens. Derivative claims under the
Magnuson-Moss Act were dismissed as well. The district
court granted summary judgment on the Civil Code fraud
claim because the limitations period had run, no equitable
tolling was warranted, and, in the alternative, the facts shown
were inadequate to support the claim. For this last reason,
summary judgment was also granted on the UCL claim.
DISCUSSION
We review de novo dismissals pursuant to Federal Rule of
Civil Procedure 12(b)(6). Burgert v. Lokelani Bernice Pauahi
Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000). To avoid a
2
These provisions codify in part the common law tort of fraud. LiMan-
dri v. Judkins, 52 Cal. App. 4th 326, 337 n.5 (1997).
9130 CLEMENS v. DAIMLERCHRYSLER CORP.
Rule 12(b)(6) dismissal, a complaint need not contain detailed
factual allegations; rather, it must plead “enough facts to state
a claim to relief that is plausible on its face.” Bell Atl. Corp.
v. Twombly, 127 S. Ct. 1955, 1974 (2007). We review a grant
of summary judgment de novo. Devereaux v. Abbey, 263 F.3d
1070, 1074 (9th Cir. 2001).
I
We begin with Clemens’s claims that DaimlerChrysler
breached express and implied warranties. The district court
held—and Clemens does not dispute—that the claims under
the Magnuson-Moss Act stand or fall with his express and
implied warranty claims under state law.3 Therefore, this
court’s disposition of the state law warranty claims deter-
mines the disposition of the Magnuson-Moss Act claims.
A. Breach of Express Warranty
The district court properly dismissed Clemens’s claim for
breach of express warranty because Clemens has alleged no
such breach. The head gasket functioned throughout the
36,000 miles or three years for which it was warranted. Clem-
ens attempts to escape this conclusion by arguing that the
warranty expressly applies to “any defective item,” that the
defect allegedly existed before the warranty expired, and that
DaimlerChrysler had knowledge of the defect at the time of
3
15 U.S.C. § 2310(d) provides that “a consumer who is damaged by the
failure of a supplier, warrantor, or service contractor to comply with any
obligation under this chapter, or under a written warranty, implied war-
ranty, or service contract, may bring suit for damages and other legal and
equitable relief . . . .” Clemens alleges a violation of the Act only insofar
as DaimlerChrysler may have breached its warranties under state law;
there is no allegation that DaimlerChrysler otherwise failed to comply
with the Magnuson-Moss Act. Therefore, the federal claims hinge on the
state law warranty claims. See Schimmer v. Jaguar Cars, Inc., 384 F.3d
402, 405 (7th Cir. 2004) (noting that the Magnuson-Moss Act borrows
state law causes of action).
CLEMENS v. DAIMLERCHRYSLER CORP. 9131
sale. Therefore, he claims, the expiration of the warranty is no
obstacle.
[1] California has adopted a doctrine from the Second Cir-
cuit that forecloses these arguments. “The general rule is that
an express warranty does not cover repairs made after the
applicable time or mileage periods have elapsed.” Daugherty
v. Am. Honda Motor Co., 144 Cal. App. 4th 824, 830 (2006)
(quoting Abraham v. Volkswagen of Am., Inc., 795 F.2d 238,
250 (2d Cir. 1986)). Abraham rejected the holding of Alberti
v. Gen. Motors Corp., 600 F. Supp. 1026 (D.D.C. 1985),
which had held that a breach-of-warranty claim for post-
warranty component problems could proceed after the war-
ranty period if the defendant knew of the defects at the time
of sale. Abraham, 795 F.2d at 250. As the Abraham court rec-
ognized, Alberti conflated notions of express and implied
warranty and pushed the definition of “defect” to the breaking
point.
Every manufactured item is defective at the time of sale in
the sense that it will not last forever; the flip-side of this origi-
nal sin is the product’s useful life. If a manufacturer deter-
mines that useful life and warrants the product for a lesser
period of time, we can hardly say that the warranty is impli-
cated when the item fails after the warranty period expires.
The product has performed as expressly warranted. Claims
regarding other buyer expectations and the manufacturer’s
state of mind properly sound in fraud and implied warranty.
[2] Accordingly, the California Court of Appeal has joined
the Second Circuit in rejecting the holding of Alberti for the
“general rule” of Abraham. See Daughtery, 144 Cal. App. 4th
at 831 (“Like the court in Abraham, we do not find the rea-
soning of Alberti persuasive and decline to follow it.” (inter-
nal quotation marks and alterations omitted)). The repairs in
this case were made after the warranty period expired. There-
fore, we affirm the dismissal of the express warranty claims.
9132 CLEMENS v. DAIMLERCHRYSLER CORP.
B. Breach of Implied Warranty
[3] Clemens’s implied warranty claim also fails, but for a
different reason. Under California Commercial Code section
2314, the implied warranty provision invoked by Clemens, a
plaintiff asserting breach of warranty claims must stand in
vertical contractual privity with the defendant. Anunziato v.
eMachines, Inc., 402 F. Supp. 2d 1133, 1141 (C.D. Cal.
2005). A buyer and seller stand in privity if they are in adjoin-
ing links of the distribution chain. Osborne v. Subaru of Am.
Inc., 198 Cal. App. 3d 646, 656 n.6 (1988). Thus, an end con-
sumer such as Clemens who buys from a retailer is not in
privity with a manufacturer. Id.Some particularized exceptions to the rule exist. The first
arises when the plaintiff relies on written labels or advertise-
ments of a manufacturer. See Burr v. Sherwin Williams Co.,
42 Cal. 2d 682, 696 (Cal. 1954). The other exceptions arise
in special cases involving foodstuffs, pesticides, and pharma-
ceuticals, and where the end user is an employee of the pur-
chaser. See id. at 695; Windham at Carmel Mountain Ranch
Ass’n v. Superior Court, 109 Cal. App. 4th 1162, 1169
(2003); Fieldstone Co. v. Briggs Plumbing Prods., Inc., 54
Cal. App. 4th 357, 369 (1997); Gottsdanker v. Cutter Labs.,
182 Cal. App. 2d 602, 608 (1960). Clemens does not claim
that any of these exceptions apply directly. Instead, he urges
that they are exemplary rather than exhaustive, and that simi-
lar equities support an exception for his case.
[4] We decline this invitation to create a new exception that
would permit Clemens’s action to proceed. So doing, we
acknowledge that state courts have split on this privity ques-
tion, see Rothe v. Maloney Cadillac, Inc., 492 N.E.2d 497,
502 (Ill. App. Ct. 1986), aff’d in part and rev’d in part, Rothe
v. Maloney Cadillac, Inc., 518 N.E.2d 1028 (Ill. 1988) (col-
lecting cases on both sides), and that the requirement may be
an archaism in the modern consumer marketplace. See Hyun-
dai Motor Am., Inc. v. Goodin, 822 N.E.2d 947, 952-59 (Ind.
CLEMENS v. DAIMLERCHRYSLER CORP. 9133
2005) (discussing the history of the privity requirement at
length and rejecting its application to consumer—
manufacturer warranty claims). Nonetheless, California courts
have painstakingly established the scope of the privity
requirement under California Commercial Code section 2314,
and a federal court sitting in diversity is not free to create new
exceptions to it. See Day & Zimmermann, Inc. v. Challoner,
423 U.S. 3, 4 (1975). A lack of vertical privity requires the
dismissal of Clemens’s implied warranty claims.
II
We next turn to Clemens’s Civil Code and UCL claims.
The district court concluded that Clemens’s Civil Code fraud
claims were time-barred by the three-year statute of limita-
tions set out in California Code of Civil Procedure section
338(d). Clemens argues that the beginning of the limitations
period should have been postponed by the discovery rule or
that limitations should have been tolled by the filing of a simi-
lar action in Illinois. We disagree with both contentions.
A. The Discovery Rule
[5] In California, the discovery rule postpones accrual of a
claim until “the plaintiff discovers, or has reason to discover,
the cause of action.” Norgart v. Upjohn Co., 21 Cal. 4th 383,
397 (Cal. 1999). California applies a special standard in cases
of fraudulent concealment, which Clemens claims here. In
these cases, the plaintiff must show: “(1) when the fraud was
discovered; (2) the circumstances under which it was discov-
ered; and (3) that the plaintiff was not at fault for failing to
discover it or had no actual or presumptive knowledge of facts
sufficient to put him on inquiry.” Baker v. Beech Aircraft
Corp., 39 Cal. App. 3d 315, 321 (1974). “A plaintiff must
affirmatively excuse his failure to discover the fraud within
three years by showing that he was not negligent in failing to
make the discovery sooner and that he had no actual or pre-
9134 CLEMENS v. DAIMLERCHRYSLER CORP.
sumptive knowledge of facts sufficient to put him on inquiry.”
Bedolla v. Logan & Frazer, 52 Cal. App. 3d 118, 129 (1975).
[6] Clemens has failed to carry this burden. In his deposi-
tion, he testified that prior to three years before the filing of
this action, he performed research on the internet and learned
that head gasket failure was a “common problem” in Dodge
Neon cars. Clemens knew at that time that DaimlerChrysler
was offering discounts to replace some head gaskets after the
warranty period. His requests for repair discounts after the
warranty period expired, along with his efforts to videotape
his repair process (apparently in preparation for litigation)
both imply a suspicion of wrongdoing, and both occurred
more than three years before he filed his action. Clemens was
unable to identify any event between that time and the time
he contacted his attorneys that affected his thinking about the
lawsuit. Under Bedolla, the start of the limitations period is
postponed only if Clemens has made an affirmative showing
that he lacked inquiry notice and subsequently gained such
notice less than three years before filing his action. He has not
done so. Thus, we conclude that the discovery rule did not
prevent the running of limitations to bar Clemens’s claim.
B. The Illinois Action
In 2001, a nationwide class action concerning Dodge Neon
head gaskets was filed in Illinois. It is undisputed that Clem-
ens was a member of the nationwide class that the plaintiffs
in that case sought to certify. Here, as in the district court,
Clemens argues that his claim may proceed under a theory of
cross-jurisdictional tolling because he relied upon the Illinois
action to vindicate his rights. We agree with the district court
that this argument must fail.
[7] In some instances, a plaintiff can rely on the filing of
a prior class action to vindicate the right in question and toll
the statute in the event that the class is not ultimately certified.
See Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554
CLEMENS v. DAIMLERCHRYSLER CORP. 9135
(1974). A handful of states have applied this rule when a class
action is filed in another jurisdiction. See Ravitch v. Price-
waterhouse, 793 A.2d 939, 943-44 (Pa. Super. Ct. 2002) (col-
lecting cases going both ways but rejecting tolling); see also,
e.g., Staub v. Eastman Kodak Co., 726 A.2d 955, 965-67 (N.J.
Super. Ct. App. Div. 1999) (allowing tolling); Vaccariello v.
Smith & Nephew Richards, Inc., 763 N.E.2d 160, 163 (Ohio
2002) (allowing tolling). The California Supreme Court has
not adopted such cross-jurisdictional tolling, however, and
few states do. See Maestas v. Sofamor Danek Group, Inc., 33
S.W.3d 805, 808 (Tenn. 2000) (citing state court decision
adopting cross-jurisdictional tolling). As the Maestas court
noted, several federal courts have declined to import the doc-
trine into state law where it did not previously exist. See, e.g.,
Wade v. Danek Med., Inc., 182 F.3d 281, 287-88 (4th Cir.
1999) (citing Virginia’s lack of interest in furthering the econ-
omy of class action procedures in another jurisdiction, the risk
that forum-shopping plaintiffs from out of state would swell
the dockets of Virginia’s courts, and the unwieldy prospect of
tying Virginia’s statute of limitations to the resolution of
claims in other jurisdictions).
[8] Accordingly, the weight of authority and California’s
interest in managing its own judicial system counsel us not to
import the doctrine of cross-jurisdictional tolling into Califor-
nia law. The rule of American Pipe—which allows tolling
within the federal court system in federal question class
actions—does not mandate cross-jurisdictional tolling as a
matter of state procedure. We therefore conclude that the fil-
ing of the Illinois action did not toll the statute, and Clemens’s
Civil Code fraud claim is barred by the three-year statute of
limitations.
III
[9] Finally, we address the district court’s grant of sum-
mary judgment on the merits of Clemens’s UCL claim. The
UCL statute allows claims for unfair, unlawful, or fraudulent
9136 CLEMENS v. DAIMLERCHRYSLER CORP.
business practices. Cal. Bus. & Prof. Code § 17200. On
appeal, Clemens contends only that DaimlerChrysler’s con-
duct was fraudulent or unfair within the meaning of the stat-
ute. California authority makes clear that both claims are
meritless.
A. Fraudulent Conduct
[10] Clemens has presented insufficient evidence in support
of his claim that DaimlerChrysler fraudulently concealed any
head gasket defect in violation of the UCL. Generally, to be
actionable under the UCL, a concealed fact must be material
in the sense that it is likely to deceive a reasonable consumer.
Aron v. U-Haul Co. of Cal., 143 Cal. App. 4th 796, 806
(2006). Unlike a common law fraud claim, a UCL fraud claim
requires no proof that the plaintiff was actually deceived.
Daugherty, 144 Cal. App. 4th at 838. Instead, the plaintiff
must produce evidence showing “a likelihood of confounding
an appreciable number of reasonably prudent purchasers exer-
cising ordinary care.” Brockey v. Moore, 107 Cal. App. 4th
86, 99 (2003). Surveys and expert testimony regarding con-
sumer assumptions and expectations may be offered but are
not required; anecdotal evidence may suffice, although “a few
isolated examples” of actual deception are insufficient. Id.(repudiating federal district court decisions which, like the
subsequent case Chamberlan v. Ford Motor Co., 369 F. Supp.
2d 1138, 1145 (N.D. Cal. 2005), suggest anecdotal evidence
of materiality is always insufficient under a “reasonable con-
sumer” standard).
In the context of post-warranty failure of engine compo-
nents, California courts have viewed fraudulent concealment
actions under this statute with some skepticism, recently
affirming a dismissal on materiality grounds for failure to
allege that “(1) members of the public had any expectation or
made any assumptions that [DaimlerChrysler’s] exhaust man-
ifolds would be made from cast iron, as opposed to tubular
steel, (2) the public had any expectation or made any assump-
CLEMENS v. DAIMLERCHRYSLER CORP. 9137
tions regarding the life span of the exhaust manifold of a
[DaimlerChrysler] vehicle, or (3) facts showing [Daimler-
Chrysler] had made any representation of any kind, much less
any misrepresentation, regarding its vehicles.” Bardin v.
DaimlerChrysler Corp., 136 Cal. App. 4th 1255, 1275 (2006).
In Daugherty, the California Court of Appeal applied that
materiality test in a case involving facts closely akin to those
in the instant case: the engine components at issue were
alleged to cause premature oil leaks that could, in turn, cause
potentially serious additional engine damage. 144 Cal. App.
4th at 827, 835-36. The court held that where “[t]he only
expectation buyers could have had about [a particular] engine
was that it would function properly for the length of [the man-
ufacturer]’s express warranty,” the public was not likely to be
deceived. Id. at 838 (dismissing claim under Rule 12(b)(6)).
[11] Aside from his bare allegations, Clemens has produced
no evidence to suggest that a reasonable consumer would
have expected or assumed any particular head gasket lifespan
in excess of the warranty period. Moreover, the facts in the
record speak to the contrary. Clemens testified in his deposi-
tion that at the time of purchase, he never made inquiries
about warranties, repair costs, or the lifespan of the engine.
His purchasing preferences related to price and on-road per-
formance. He admitted that when he bought the Neon, he had
no idea how long he expected to keep it. He continued to
drive the car for nine months (about 10,000 miles) after he
learned of the oil leak.
[12] The UCL would permit Clemens to offer additional
evidence of consumer expectations, but he offers only evi-
dence concerning his personal experience. His largely unde-
fined personal assumptions and expectations do not support a
finding that the 60,000-mile lifespan of the head gasket was
material even to his own purchasing decision; he has not pro-
duced sufficient evidence that the failure to disclose was
likely to deceive a reasonable consumer. Therefore, his claim
of fraudulent conduct in violation of the UCL fails.
9138 CLEMENS v. DAIMLERCHRYSLER CORP.
B. Unfair Conduct
[13] Clemens also argues that summary judgment was
improper because DaimlerChrysler engaged in “unfair” con-
duct under UCL. Daugherty forecloses this claim. “[T]he fail-
ure to disclose a defect that might, or might not, shorten the
effective life span of an automobile part that functions pre-
cisely as warranted throughout the term of its express war-
ranty cannot be characterized as causing a substantial injury
to consumers, and accordingly does not constitute an unfair
practice under the UCL.” Daugherty, 144 Cal. App. 4th at
839.
CONCLUSION
Clemens cannot proceed on his express warranty claim
because he has not alleged that his Dodge Neon failed to per-
form as expressly warranted. His implied warranty claim fails
because he is not in vertical privity with DaimlerChrysler as
required by California law. Dismissal was therefore appropri-
ate as to both claims under state law and the Magnuson-Moss
Act.
Because Clemens had inquiry notice of fraud more than
three years before the filing of this action, the statute of limi-
tations bars his Civil Code fraud claim. Clemens cannot pro-
ceed under the UCL because California courts have made it
clear that DaimlerChrysler’s conduct was not unfair within
the meaning of the statute and Clemens has produced insuffi-
cient evidence that the failure rate of the head gasket was
material to a reasonable consumer. The judgment of the dis-
trict court is therefore
AFFIRMED.