                                                                             FILED
                            NOT FOR PUBLICATION
                                                                              MAR 12 2018
                     UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

ALEXANDER FOROUZESH,                              No. 16-56355
individually and on behalf of all others
similarly situated,                               D.C. No.
                                                  2:16-cv-03830-PA-AGR
              Plaintiff-Appellant,

 v.                                               MEMORANDUM*

STARBUCKS CORPORATION; et al.,

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     Percy Anderson, District Judge, Presiding

                             Submitted March 8, 2018**
                                Pasadena, California

Before: GRABER, W. FLETCHER, and OWENS, Circuit Judges.

      Plaintiff Alexander Forouzesh timely appeals from the dismissal with

prejudice of this diversity action, which alleged a variety of California tort and

statutory claims. On de novo review of this dismissal pursuant to Federal Rule of

      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
        The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
Civil Procedure 12(b)(6), Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1159

(9th Cir. 2012), we affirm.

      The statutory claims fail as a matter of law because no reasonable consumer

would think (for example) that a 12-ounce "iced" drink, such as iced coffee or iced

tea, contains 12 ounces of coffee or tea and no ice. See Ebner v. Fresh, Inc., 838

F.3d 958, 965 (9th Cir. 2016) (applying the "reasonable consumer" standard to

California claims and upholding the dismissal with prejudice of a similarly

speculative claim).

      The fraud claim fails for the same reason because (even assuming that there

was a representation) justifiable reliance is absent. See Lazar v. Superior Court,

909 P.2d 981, 984 (Cal. 1996) (holding that justifiable reliance is a required

element of a fraud claim).

      The claim for breach of express warranty fails because the complaint

contains no allegation that Defendant promised that the iced drinks in question

would contain a specific amount of liquid, as distinct from a total amount of liquid

and ice. See Viggiano v. Hansen Natural Corp., 944 F. Supp. 2d 877, 893–95

(C.D. Cal. 2013) (stating elements of express warranty claim in California).




                                          2
      Finally,1 the district court did not abuse its discretion, Leadsinger, Inc. v.

BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008), by denying leave to

amend. The court permissibly concluded that the defects in Plaintiff’s theories of

liability cannot be cured, so that the requested amendment would have been futile.

      AFFIRMED.




      1
       Plaintiff has waived any argument that dismissal of the additional claims
was erroneous, because his opening brief does not address those claims. Dilley v.
Gunn, 64 F.3d 1365, 1367 (9th Cir. 1995).
                                           3
