                                                                              FILED
                           NOT FOR PUBLICATION                                 FEB 10 2014

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



                            FOR THE NINTH CIRCUIT


RODNEY HARMON, individually and on               No. 11-18056
behalf of a class of similarly situated
consumers,                                       D.C. No. 3:11-cv-03677-JCS

              Plaintiff - Appellant,
                                                 MEMORANDUM*
  v.

HILTON GROUP, PLC; HILTON
INTERNATIONAL CO.; HILTON
HOTELS CORPORATION,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Northern District of California
                   Joseph C. Spero, Magistrate Judge, Presiding

                      Argued and Submitted January 17, 2014
                            San Francisco, California

Before: WALLACE and BYBEE, Circuit Judges, and GETTLEMAN, 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 Robert W. Gettleman, Senior District Judge for the
U.S. District Court for the Northern District of Illinois, sitting by designation.
      Rodney Harmon filed a class action complaint against the Hilton Group,

alleging several violations of California’s Unfair Competition Law (“UCL”), two

violations of the California Consumer Legal Remedies Act (“CLRA”), and unjust

enrichment. The district court dismissed the complaint with prejudice1 because

Harmon suffered no damages and Hilton disclosed the possibility of $.75 refund2

for customers who refuse a newspaper. Harmon appeals, arguing that the district

court made erroneous findings of fact when it decided that Harmon lacked standing

to bring his claims and that the district court erroneously decided that the

newspaper disclosures were adequate as a matter of law. We have jurisdiction

under 28 U.S.C. § 1291. Our review is de novo, Manzarek v. St. Paul Fire &

Marine Ins. Co., 519 F.3d 1025, 1030 (9th Cir. 2008), and we affirm.

      California’s UCL prohibits any “unlawful, unfair or fraudulent business act

or practice.” Cal. Bus. & Prof. Code §§ 17200, 17204. UCL claims are governed


      1
        We do not address whether the district court should have given Harmon
leave to amend his complaint because Harmon failed to preserve this issue.
Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (holding that courts will
review only issues that are argued specifically and distinctly in an opening brief);
Fed. R. App. P. 28(a)(5) (an appellant’s brief must state the issues presented for
review, a summary of the argument, and the appellant’s contentions and the
reasons for them).
      2
        We acknowledge that Harmon refers to the $.75 as a fee or a charge,
whereas Hilton uses the terms “credit” or “refund.” We do not address this
difference because it does not affect our decision.

                                         -2-
by the “reasonable consumer standard,” which requires evidence that “members of

the public are likely to be deceived.” Williams v. Gerber Prods. Co., 523 F.3d 934,

938 (9th Cir. 2008) (internal citations and quotation marks omitted).

      Here, Harmon alleges that Hilton violated all three of the UCL’s prongs.

We disagree. Harmon’s unlawful business practice claim fails because the factual

allegations of his complaint do not support a plausible inference that Hilton’s

newspaper policy violates the CRLA, as seen below. Harmon’s unfair business

practice claim fails under all three tests3 that California courts apply to unfairness

claims because his complaint fails to allege that a reasonable consumer could not

avoid any harm allegedly caused by the disclosure policy by closely reading the

disclosure. Lastly, Harmon’s complaint fails to plead that Hilton’s newspaper

disclosure was a fraudulent business practice, because he offers no allegations that

the disclosure had “a likelihood of confounding an appreciable number of

reasonably prudent purchasers exercising ordinary care,” and only offered one

“isolated example[ ] of actual deception”—himself. Clemens v. DaimlerChrysler

Corp., 534 F.3d 1017, 1026 (9th Cir. 2008). Thus, regardless of whether Harmon




      3
       See Davis v. Ford Motor Credit Co., 179 Cal. App. 4th 581, 593-97 (Cal.
Ct. App. 2009) (discussing the three unfair business tests).

                                          -3-
suffered economic harm, the facts in his complaint do not state a plausible UCL

claim.

         Harmon’s CLRA claim is without merit. California Civil Code

§ 1770(a)(14) proscribes “representing that a transaction confers or involves rights,

remedies, or obligations which it does not have or involve.” Section 1770(a)(19)

bars insertion of unconscionable provisions into a contract. Here, regardless of

damages, Harmon’s complaint does not show that he is entitled to relief because it

does not adequately allege that the disclosure policy had “the likely effect of

misleading the public.” Daugherty v. Am. Honda Mot. Co., Inc., 144 Cal. App. 4th

824, 836 (Cal. Ct. App. 2006). Nor does he plead that Hilton’s disclosure is

unconscionable.

         Harmon’s unjust enrichment claim fails because he failed to plead that

Hilton was “unjustly” enriched.

         Accordingly, the district court did not err by dismissing Harmon’s

complaint.

         AFFIRMED.




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