                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 20 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


                                                 No. 11-56637
HENRY TROUP; VERONICA TROUP,
                                                 D.C. No. 2:10-cv-01089-PSG-
              Plaintiffs - Appellants,           VBK

  v.
                                                 MEMORANDUM*
TOYOTA MOTOR CORPORATION;
TOYOTA MOTOR SALES, U.S.A., 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 August 26, 2013
                              Pasadena, California

Before: GOULD and RAWLINSON, Circuit Judges, and LEMELLE, District
Judge.**

       Henry and Veronica Troup appeal the district court’s dismissal of their class

action complaint. We affirm.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Ivan L.R. Lemelle, District Judge for the U.S. District
Court for the Eastern District of Louisiana, sitting by designation.
       1.     The district court properly dismissed the Troups’ claim predicated on

breach of an express warranty. The Toyota Prius’s alleged design defect does not

fall within the scope of Toyota’s Basic Warranty against “defects in materials or

workmanship.” In California, express warranties covering defects in materials and

workmanship exclude defects in design. See Daugherty v. Am. Honda Motor Co.,

Inc., 144 Cal. App. 4th 824, 830 (2006), as modified (“[Plaintiff] argues . . . that a

defect that exists during the warranty period is covered, particularly where it

results from an ‘inherent design defect,’ if the warrantor knew of the defect at the

time of the sale. We disagree.”). Moreover, the Troups failed to adequately allege

a materials or workmanship defect. Despite its scattered references to “materials”,

the gravamen of the complaint is that the Prius’s defect resulted from the use of

resin to construct the gas tanks, which is a design decision. See McCabe v. Am.

Honda Motor Co., 100 Cal. App. 4th 1111, 1120 (2002) (“A design defect . . .

exists when the product is built in accordance with its intended specifications, but

the design itself is inherently defective. . . .”) (citation omitted).



       2.     Although a closer question, we also conclude that the district court

properly dismissed the Troups’ claim predicated on breach of the implied warranty

of merchantability. The Troups failed to allege that their Prius was unfit for its


                                       Page 2 of 5
intended purpose, as the alleged defect did not compromise the vehicle’s safety,

render it inoperable, or drastically reduce its mileage range. We recognize that the

California Court of Appeal held in Isip v. Mercedes-Benz, USA, LLC, 155 Cal.

App. 4th 19, 27 (2007), that a defect need not render a vehicle inoperable to give

rise to a claim for breach of implied warranty. However, the alleged defect in Isip

drastically undermined the ordinary operation of the vehicle. See id. at 22. By

contrast, the defect alleged by the Troups did not implicate the Prius’s operability;

rather, it merely required the Troups to refuel more often. Absent more, the

complaint fails to state a plausible claim for breach of the implied warranty of

merchantability. See Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir.

2011) (“To survive a motion to dismiss, a plaintiff’s complaint must have

sufficient facts to state a facially plausible claim to relief.”) (citation and internal

quotation marks omitted).



       3.     Although the district court dismissed the Troups’ claim under

California’s Unfair Competition Law (UCL) for failure to state a claim, we observe

that the Troups also probably lacked standing to assert that claim because they are

Pennsylvania residents who purchased their Prius in their home state. See Norwest

Mortg., Inc. v. Superior Court, 72 Cal. App. 4th 214, 222 (1999) (“[The UCL]


                                       Page 3 of 5
contains no express declaration that it was designed or intended to regulate claims

of nonresidents arising from conduct occurring entirely outside of California. . . .”).

In any event, the Troups also failed to state a plausible claim under the UCL given

their failure to successfully allege a breach of implied or express warranty, which

are predicates for their UCL claim. See Wilson v. Hewlett-Packard Co., 668 F.3d

1136, 1140 (9th Cir. 2012) (“The UCL borrows violations of other laws and treats

them as unlawful practices that the unfair competition law makes independently

actionable. . . .”) (citation and internal quotation marks omitted).



      4.     Given the Troups’ failure to state a claim for breach of an express or

implied warranty, the district court also properly dismissed their claim under the

Magnuson-Moss Warranty Act, a federal cause of action requiring a breach of

warranty under state law. See Birdsong v. Apple, Inc., 590 F.3d 955, 958 n.2 (9th

Cir. 2009) (“[B]ecause we conclude that the plaintiffs have failed to state a claim

for breach of an express or implied warranty, their claim[] under the[] [Magnuson-

Moss Warranty Act is] also properly dismissed.”).



      5.     Finally, the district court’s decision to dismiss the complaint with

prejudice was not an abuse of discretion, especially given that the Troups were


                                     Page 4 of 5
afforded five opportunities to set forth plausible claims for relief. See Okwu v.

McKim, 682 F.3d 841, 846 (9th Cir. 2012) (“[The plaintiff] has not identified any

amendment consistent with the facts she has already alleged that would give her a

viable claim. We therefore conclude that the district court’s decisions to dismiss

with prejudice . . . was not an abuse of discretion.”) (footnote reference omitted).



      AFFIRMED.




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