FILED

NOT FOR PUBLICATION MAR 18 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

ANTHONY Z. ABERDEEN, individually, No. 09-56149 and on behalf of other members of the general public similarly situated, D.C. No. 2:08-cv-01690-PSG-

VBK

Plaintiff - Appellant,

v. MEMORANDUM *

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 February 18, 2011

Pasadena, California

Before: KLEINFELD and GRABER, Circuit Judges, and ZILLY,** Senior District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Thomas S. Zilly, Senior United States District Judge for the Western District of Washington, sitting by designation. The district court did not abuse its discretion in denying class certification.

Because Aberdeen was subject to unique defenses that threaten to preoccupy him,

he lacks typicality. Fed. R. Civ. P. 23(a)(3); Hanon v. Dataproducts Corp., 976

F.2d 497, 508 (9th Cir. 1992). Thus, denial of class certification was not an abuse

of discretion.

When class certification was denied, the district court was not stripped of

jurisdiction over the individual claims. Subsequent to the district court’s decision,

we held that continued jurisdiction under 28 U.S.C. § 1332(d) “does not depend on

certification.” United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus.

& Serv. Workers Int’l Union v. Shell Oil Co., 602 F.3d 1087, 1092 (9th Cir. 2010)

(internal quotation marks omitted). Thus, the district court erred, though it could

not have known it at the time, in dismissing the case and should have retained

jurisdiction to decide Aberdeen’s individual claims.

As to the issue of standing, the district court erred in holding that Aberdeen

lacked standing, individually, to sue under California’s Unfair Competition Laws.

Aberdeen waived his affirmative misrepresentation claim, but has standing to raise

his “pure omission” claim. In concluding that, because a consumer would have no

source other than Toyota’s advertising for forming an expectation about the Prius’s

fuel economy, Toyota had no duty to disabuse the consumer of the notion that the

2 vehicle would achieve 55 mpg, the district court improperly assumed that

consumers would have no way of knowing EPA estimates absent a manufacturer’s

advertisements, an assumption belied by the EPA’s own website. Moreover, the

district court’s reasoning, which would permit a manufacturer to make certain

representations and then be insulated from liability for failing to disclose contrary

information so long as the consumer had no alternate source of data on the subject,

is antithetical to the underlying purposes of consumer protection legislation.

In finding fault with the district court’s earlier analysis, we do not mean to

suggest whether Aberdeen has stated a claim on which relief may be granted. The

district court should decide whether California law supports a “pure omission”

theory of liability in the non-warranty context, and whether California law creates

a duty to disclose Toyota’s internal fuel economy data. See Falk v. Gen. Motors

Corp., 496 F. Supp. 2d 1088 (N.D. Cal. 2007). But see Buller v. Sutter Health, 74

Cal. Rptr. 3d 47, 51-53 (Ct. App. 2008) (rejecting contention that Falk applies to

non-safety related omissions); Daugherty v. Am. Honda Motor Co., 51 Cal. Rptr.

3d 118, 127 (Ct. App. 2006) (same). As to his standing under California’s

Consumers Legal Remedies Act, there is at least a question of fact whether

Aberdeen is a “consumer.”

3 Because we affirm the denial of class certification on the ground that

Aberdeen lacks typicality, and because we do not reach the questions under

California law concerning his “pure omission” theory, we do not determine

whether individual issues would predominate in a request for class certification

brought by a different plaintiff. In addition, in affirming the denial of class

certification, we do not preclude the district court from reconsidering its ruling in

the event it concludes that Aberdeen has a viable “omission” claim.

AFFIRMED in part, REVERSED in part, and REMANDED. The parties

shall bear their own costs on appeal.

4

FILED

Aberdeen v. Toyota Motor Sales, U.S.A., Inc., No. 09-56149 MAR 18 2011

MOLLY C. DWYER, CLERK

U .S. C O U R T OF APPE ALS

KLEINFELD, Circuit Judge, concurring in part and dissenting in part:

I would affirm, having concluded that the district court was correct on

“standing” under California law.