SOLOMON KELLY v. BEAZER HOMES USA, INC. , 552 F. App'x 666 ( 2014 )

FILED
NOT FOR PUBLICATION JAN 13 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SOLOMON KELLY; et al., No. 12-55750
Plaintiffs - Appellants, D.C. No. 5:09-cv-01674-VAP-
DTB
v.
BEAZER HOMES USA, INC.; et al., MEMORANDUM*
Defendants - Appellees.
REMEDIOS MARTINEZ, as an individual No. 12-55751
and on behalf of all others similarly
situated, D.C. No. 5:09-cv-01672-VAP-
DTB
Plaintiff - Appellant,
v.
D.R. HORTON, INC.,
Defendant - Appellee.
GASPARE C. ONETO; et al., No. 12-55752
Plaintiffs - Appellants, D.C. No. 5:09-cv-01670-VAP-
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
v. DTB
THE RYLAND GROUP, INC.; et al.,
Defendants - Appellees.
MATTHEW NIELSON, as individual and No. 12-55761
on behalf of all others similarly situated
and NICOLE NIELSON, as individual and D.C. No. 5:09-cv-01673-VAP-
on behalf of all others similarly situated, DTB
Plaintiffs - Appellants,
v.
SHEA HOMES INC. and J.F. SHEA CO.,
INC.,
Defendants - Appellees.
JAMES F. DODARO, as an individual and No. 12-55773
on behalf of all others similarly situated,
D.C. No. 5:09-cv-01666-VAP-
Plaintiff - Appellant, DTB
v.
STANDARD PACIFIC CORP., DBA
Standard Pacific Homes,
Defendant - Appellee.
2
EDILBERTO LUMALU, as individual No. 12-55776
and on behalf of all others similarly
situated; et al., D.C. No. 5:09-cv-01669-VAP-
DTB
Plaintiffs - Appellants,
v.
RICHMOND AMERICAN HOMES
CORPORATION; et al.,
Defendants - Appellees.
SYLVESTER MAYA, as individual and No. 12-55778
on behalf of all others similarly situated
and OFER MASACHI, as individual and D.C. No. 5:09-cv-01671-VAP-
on behalf of all others similarly situated, DTB
Plaintiffs - Appellants,
v.
CENTEX CORPORATION; et al.,
Defendants - Appellees.
STELLA STEPHENS, as an individual No. 12-55779
and on behalf of all others similarly
situated and TIMOTHY YOUNG, D.C. No. 5:09-cv-01668-VAP-
DTB
Plaintiffs - Appellants,
v.
3
LENNAR CORPORATION and
LENNAR HOMES OF CALIFORNIA,
INC.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted January 7, 2014
Pasadena, California
Before: W. FLETCHER, M. SMITH, and WATFORD, Circuit Judges.
Plaintiffs-Appellants (Plaintiffs) purchased homes from Defendants-
Appellees (the Homebuilders). Plaintiffs appeal from the district court’s dismissal
of their Second Amended Complaints under Federal Rule of Civil Procedure
12(b)(6). Because the parties are familiar with the facts and procedural history of
these cases, we repeat only those facts necessary to resolve the issues raised on
appeal. We affirm.
The district court properly dismissed Plaintiffs’ fraudulent concealment
claims because Plaintiffs fail to plead facts showing that the Homebuilders
breached a duty to disclose. See Hahn v. Mirda, 147 Cal. App. 4th 740, 748
(2007). While a seller’s duty to disclose may extend to known nuisances on
neighboring properties, see, e.g., Alexander v. McKnight, 7 Cal. App. 4th 973,
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977–78 (1992), California courts have never suggested that a seller must disclose
the financial condition of neighbors to a prospective buyer. As the district court
cogently observed, “an indebted neighbor” is not akin “to one who creates a
noxious nuisance on his or her property.”
The district court also correctly dismissed Plaintiffs’ fraudulent
misrepresentation claims. The Homebuilders’ references to the “stable,”
“traditional,” and “family-based” character of their developments are too vague to
be actionable. See Glen Holly Entm’t Inc. v. Tektronix Inc., 343 F.3d 1000, 1015
(9th Cir. 2003). Further, Plaintiffs’ allegations show that the Homebuilders’ other
challenged “representations” were (1) promises from the Plaintiffs to the
Homebuilders; (2) qualified by express disclaimers; or (3) vague expressions of the
Homebuilders’ “desires.” And the underlying documents, which the district court
properly considered at the pleading stage, see Ecological Rights Found. v. Pac.
Gas & Elec. Co., 713 F.3d 502, 511 (9th Cir. 2013), show that Plaintiffs’ alleged
reliance was unjustifiable as a matter of law. See Alliance Mortg. Co. v. Rothwell,
900 P.2d 601, 609 (Cal. 1995).
Because Plaintiffs fail to plead facts showing actionable misrepresentations
and justifiable reliance, Plaintiffs’ negligent misrepresentation claims also fail. See
Glenn K. Jackson Inc. v. Roe, 273 F.3d 1192, 1200 n.2 (9th Cir. 2001). Similarly,
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Plaintiffs’ claims under California’s False Advertising Law, Cal. Bus. & Prof.
Code § 17500 et seq., fail because (1) many of the Homebuilders’ representations
are too vague to be actionable, see Consumer Advocates v. Echostar Satellite
Corp., 113 Cal. App. 4th 1351, 1361 & n.3 (2003); and (2) the documents on
which Plaintiffs rely would not deceive a reasonable consumer. See Williams v.
Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008).
Plaintiffs’ claims under California’s Unfair Competition Law (UCL), Cal.
Bus. & Prof. Code § 17200 et seq., are also deficient. Because Plaintiffs fail to
state a claim for any “predicate violations,” they fail to state a claim for unlawful
conduct under the UCL. Martinez v. Wells Fargo Home Mortg., Inc., 598 F.3d
549, 558 (9th Cir. 2010). Next, Plaintiffs fail to state a claim for unfair conduct
under the UCL. The regulations on which Plaintiffs relied in the district court
expressly exclude home-purchase loans. See 66 Fed. Reg. 65604-01 (Dec. 20,
2001). And we decline to consider Plaintiffs’ newly-raised argument regarding
section 2079 of the California Civil Code. See Sateriale v. R.J. Reynolds Tobacco
Co., 697 F.3d 777, 793 n.10 (9th Cir. 2012). Finally, Plaintiffs fail to state a claim
for fraudulent conduct under the UCL because Plaintiffs fail to plead facts showing
that the Homebuilders’ conduct would “confound[] an appreciable number of
reasonably prudent purchasers exercising ordinary care.” Clemens v.
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DaimlerChrysler Corp., 534 F.3d 1017, 1026 (9th Cir. 2008) (quoting Brockey v.
Moore, 107 Cal. App. 4th 86, 99 (2003)).1
Because there is no indication that any amendment could save Plaintiffs’
claims on the merits, the district court did not abuse its discretion in concluding
that amendment would be futile. See Gardner v. Martino, 563 F.3d 981, 992 (9th
Cir. 2009). In view of this disposition, we need not reach the parties’ statute of
limitations arguments.
For the foregoing reasons, we affirm the judgments of the district court.
AFFIRMED.
1
Plaintiffs do not address the district court’s dismissal of their claims for
breach of the implied covenant of good faith and fair dealing in their opening brief.
Accordingly, they have waived any challenge to that aspect of the court’s decision.
See United States v. Wahchumwah, 710 F.3d 862, 868 n.2 (9th Cir. 2013).
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