NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 3 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM KLAEHN, et al., No. 21-55738

Plaintiff-Appellants, D.C. No. 3:19-cv-01498-TWR-

KSC

v.

CALI BAMBOO LLC, et al., MEMORANDUM*

Defendant-Appellees.

Appeal from the United States District Court for the Southern District of California Todd W. Robinson, District Judge, Presiding

Argued and Submitted May 13, 2022 San Francisco, California

Before: MURGUIA, Chief Judge, BUMATAY, Circuit Judge, and BAKER,** International Trade Judge.

Plaintiff-Appellants, a putative class of purchasers of flooring sold by

Defendant-Appellee Cali Bamboo (“Cali”), appeal from the district court’s dismissal

with prejudice of their third amended complaint, which asserts California Consumer

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation. Legal Remedies Act (“CLRA”), Unfair Competition Law (“UCL”), and other state

law claims, for failure to state a claim upon which relief can be granted. We have

appellate jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. The district court concluded that Plaintiffs lacked standing to bring CLRA

claims of affirmative misrepresentations based on allegations as to which Plaintiffs

failed to plead reliance. On appeal, Plaintiffs fail to challenge that determination.

We therefore deem any claim of error waived.

The district court next analyzed the remaining allegations of affirmative

misrepresentations as to which Plaintiffs pleaded reliance. It held that other than

statements relating to a 50-year warranty or “guarantee[] to last 50 years,” any

remaining statements were non-actionable puffery. “[G]eneralized, vague[,] and

unspecific assertions” are “mere ‘puffery’ upon which a reasonable consumer” may

not rely. Glen Holly Ent., Inc. v. Tektronix Inc., 343 F.3d 1000, 1015 (9th Cir. 2003).

Puffery does not include “misdescriptions of specific or absolute characteristics of a

product,” Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1145 (9th Cir.

1997) (quoting Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911

F.2d 242, 246 (9th Cir. 1990)), or “[a] specific and measurable advertisement claim

of product superiority based on product testing,” id. Plaintiffs’ allegations that Cali

represented its flooring as “durable” and “long lasting” therefore fail because such

statements are puffery. Plaintiffs contend that the remaining representations that the flooring was

“guaranteed to last 50 years” and “has a 50-year warranty” render the “long lasting”

and “durable” representations deceptive. McAdams, however, did not address

whether the warranty representation was false or whether other representations were

puffery. Furthermore, Plaintiffs do not challenge the district court’s determination

that Cali’s 50-year warranty representation itself is not actionable under the CLRA

because a warranty is only a promise to replace or repair, not a promise of zero

defects. Plaintiffs cannot bootstrap the “durable” and “long lasting” representations

into anything more than puffery based on their non-actionable warranty claim.1

2. Plaintiffs also assert two theories for CLRA claims based on alleged

fraudulent omissions. Omissions are actionable under the CLRA when they are

“contrary to a representation actually made by the defendant” or are “of a fact the

defendant was obliged to disclose.” Hodsdon v. Mars, Inc., 891 F.3d 857, 861 (9th

Cir. 2018) (cleaned up) (quoting Daugherty v. Am. Honda Motor Co., 51 Cal. Rptr.

3d 118, 126 (Ct. App. 2006)). On appeal, Plaintiffs contend that they adequately

alleged both theories.

1 While Plaintiffs asserted claims for breach of implied and express warranty, they have not appealed the district court’s dismissal of those claims.

3 First, insofar as Plaintiffs’ omission theory relies on the first prong of

Hodsdon, it fails for the same reason that their affirmative misrepresentation claim

fails. Because we affirm the district court’s dismissal of Plaintiffs’ affirmative

misrepresentation claim as discussed above, we also affirm the district court’s

dismissal of the omission claim.

Second, Plaintiffs contend Cali knew of the alleged defect in its flooring and

failed to disclose it. Under Fed. R. Civ. P. 9(b), a plaintiff must plead circumstances

from which a court can plausibly infer the defendant’s knowledge. So, the question

here is whether Plaintiffs pleaded facts about the circumstances of the alleged defect

that would allow us to infer that Cali knew about the defect at the time of sale to

Plaintiffs. Plaintiffs contend Cali knew of the defect based on online complaints,

warranty claims, and a 2019 change in warranty terms.

For any such evidence to demonstrate knowledge at the time of purchase, the

evidence must show the defendant’s knowledge predated the purchase. The district

court therefore correctly rejected Plaintiffs’ reliance on Cali’s 2019 warranty amend-

ments because the latest date on which any named Plaintiff purchased the Cali floor-

ing was during April 2018. While Plaintiffs argue on appeal that a warranty modifi-

cation “does not happen instantly,” Plaintiffs fail to respond to the district court’s

finding that they offered nothing to support an inference that Cali must have known

about the alleged defect prior to April 2018.

4 The district court also noted that only 12 of the customer complaints Plaintiffs

cited plausibly predated the latest of Plaintiffs’ purchases and only two predated the

earliest such purchases. Plaintiffs now argue that their complaint collected “approx-

imately 100 online complaints,” that “several” of them pre-dated Plaintiffs’ pur-

chases, and that Cali responded to some of those. Plaintiffs also insist the online

complaints “are of a volume and type where it is reasonable to infer that they would

have put the defendants on notice.” But the “volume and type” of the complaints are

simply irrelevant if the complaints post-date the relevant purchases. Therefore, be-

cause Plaintiffs have failed to respond to the substance of the district court’s conclu-

sions, we affirm the district court’s dismissal of their omissions-based claims based

on the insufficiency of their allegations about Cali’s knowledge.

3. Plaintiffs assert UCL claims, but all those claims rise or fall with their

CLRA claims because some are predicated on prevailing under the CLRA and some

are premised on the same conduct Plaintiffs claim violates the CLRA. Accordingly,

we affirm the district court’s dismissal of the UCL claims.

4. Plaintiffs’ second amended complaint included a standalone count for “un-

just enrichment.” The district court dismissed that count without prejudice because

California law does not recognize an independent cause of action for unjust

5 enrichment. Plaintiffs failed to reallege and reframe that claim in their third amended

complaint and have therefore waived it.2

5. Similarly, the first amended complaint sought two forms of injunctive re-

lief, but the district court dismissed those claims without prejudice because Plaintiffs

failed “to plead facts that would support standing to seek injunctive relief”—“Plain-

tiffs do not allege that they plan to repurchase the product or are likely to be deceived

by Cali’s allegedly deceptive marketing in the future, so Plaintiffs have not shown

there is any likelihood they will suffer future harm.” While the district court granted

leave to amend, Plaintiffs did not seek injunctive relief in either the second or third

amended complaint. On appeal, Plaintiffs simply claim that it would have been “fu-

tile” to amend, but they offer no argument in support of that statement. Plaintiffs

therefore failed to preserve their claims for injunctive relief.

6. Finally, the district court dismissed Plaintiffs’ claims for UCL equitable

relief because Plaintiffs failed to make any plausible allegation that they lacked an

adequate remedy at law. On appeal, Plaintiffs argue that UCL remedies are cumula-

tive to other remedies and the adequacy of remedies at law cannot be known until

trial. But that is irrelevant. “[A] federal court must apply traditional equitable

2 Unjust enrichment can be alleged to the extent it represents a remedy for some other valid cause of action. See Melchior v. New Line Prods., Inc., 131 Cal. Rptr. 2d 347, 357 (Ct. App. 2003). But Plaintiffs failed to tie their unjust enrichment allega- tion to any other claim.

6 principles before awarding restitution under the UCL and CLRA.” Sonner v. Prem-

ier Nutrition Corp., 971 F.3d 834, 841 (9th Cir. 2020). “Under these principles, [a

plaintiff] must establish that she lacks an adequate remedy at law before securing

equitable restitution for past harm under the UCL . . . .” Id. at 844. Notably, the

Sonner court observed that “the operative complaint does not allege that [the plain-

tiff] lacks an adequate legal remedy.” Id. Because Plaintiffs have not attempted to

address the district court’s finding about the inadequacy of their allegations, we

deem that theory waived.

AFFIRMED.

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