Birdsong v. Apple, Inc.

• Decision Date: 30 December 2009
• Docket Number: No. 08-16641.,08-16641.
• Citation: 590 F.3d 955
• Parties: Joseph BIRDSONG, Individually and on Behalf of Others Similarly Situated; Bruce Waggoner, Individually and on Behalf of Others Similarly Situated, Plaintiffs-Appellants, v. APPLE, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

590 F.3d 955

Joseph BIRDSONG, Individually and on Behalf of Others Similarly Situated; Bruce Waggoner, Individually and on Behalf of Others Similarly Situated, Plaintiffs-Appellants, v. APPLE, INC., Defendant-Appellee.

No. 08-16641.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 8, 2009.

Filed December 30, 2009.

Jeff D. Friedman, Berkeley, CA, for the plaintiffs-appellants.

David Bernick, New York, NY, for the defendant-appellee.

Appeal from the United States District Court for the Northern District of California, James Ware, District Judge, Presiding. D.C. No. 5:06-CV-02280-JW.

Before: J. CLIFFORD WALLACE, DAVID R. THOMPSON and SIDNEY R. THOMAS, Circuit Judges.

THOMPSON, Senior Circuit Judge:

Plaintiffs-appellants Joseph Birdsong and Bruce Waggoner (collectively, the "plaintiffs") filed a class action complaint claiming that defendant-appellee Apple, Inc.'s ("Apple") iPod is defective because it poses an unreasonable risk of noise-induced hearing loss to its users. The plaintiffs appeal the district court's dismissal of their third amended complaint. The district court determined that the plaintiffs failed to state claims for breach of the implied warranty of merchantability and fitness for a particular purpose, and that they lacked standing to assert a claim under California's Unfair Competition Law ("UCL").

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

I Background

Apple's iPod is an electronic device which stores and plays digital audio files. Each iPod comes with a set of detachable "earbud" headphones. The iPod can be used without its earbud headphones to play music through different headphones. According to the third amended complaint, iPods have the capability of producing sounds as loud as 115 decibels. Apple includes a warning with each iPod:

Avoid Hearing Damage

Warning: Permanent hearing loss may occur if earphones or headphones are used at high volume. You can adapt over time to a higher volume of sound, which may sound normal but can be damaging to your hearing. Set your iPod's volume to a safe level before that happens. If you experience ringing in your ears, reduce the volume or discontinue use of your iPod.

Apple also provided warnings on its website.

Birdsong bought an Apple iPod in May 2005 and another in October 2005. Waggoner bought an Apple iPod in January 2005 and, six months later, a set of noise-cancelling headphones to be used with his iPod.

Birdsong, a Louisiana resident, filed this action in the Western District of Louisiana, seeking to represent a state-wide class of iPod consumers. The case was transferred to the Northern District of California on the parties' joint motion pursuant to 28 U.S.C. § 1404(a). Birdsong then filed a first amended complaint asserting claims under California law. Apple moved to dismiss the first amended complaint and Birdsong responded by filing a second amended complaint. Apple then moved to partially dismiss the second amended complaint. The district court granted Apple's motion, and granted Birdsong leave to amend.

Waggoner, a California resident, then joined Birdsong in filing a third amended complaint against Apple, alleging claims for (1) breach of express warranty, Cal. Com.Code § 2313; (2) breach of the implied warranty of merchantability, Cal. Com.Code § 2314; (3) breach of the implied warranty of fitness for a particular purpose, Cal. Com.Code § 2315; (4) violation of the California UCL, Cal. Bus. and Prof.Code §§ 17220 et seq.; (5) violations of California's Song-Beverly Consumer Warranty Act, Cal. Civ.Code §§ 1790 et seq.; and (6) violations of the federal Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301 et seq. Birdsong and Waggoner purported to represent a nationwide class of iPod purchasers. The district court dismissed the third amended complaint, and Birdsong and Waggoner appeal.¹

II Implied Warranty of Merchantability

The California Commercial Code implies a warranty of merchantability that goods "[a]re fit for ordinary purposes for which such goods are used." Cal. Com. Code § 2314(2)(c).² The implied warranty "provides for a minimum level of quality." Am. Suzuki Motor Corp. v. Superior Court, 37 Cal.App.4th 1291, 1296, 44 Cal. Rptr.2d 526 (Cal.Ct.App.1995) (quotation omitted). A breach of the warranty of merchantability occurs if the product lacks "even the most basic degree of fitness for ordinary use." Mocek v. Alfa Leisure, Inc., 114 Cal.App.4th 402, 406, 7 Cal. Rptr.3d 546 (Cal.Ct.App.2003) (citing Cal. Com.Code § 2314(2)).

The plaintiffs argue the district court erred in determining that the third amended complaint failed to sufficiently plead an implied warranty claim. They alleged that the iPod (1) comes with "stock ear buds ... designed to be placed deep into the ear canal rather than over the ears, which increases the danger of hearing damage," (2) lacks "noise isolating or cancelling properties," and (3) lacks any volume meter that will inform users they are listening at dangerous levels.

The plaintiffs contend the district court failed to take their factual allegations as true, and instead made its own counterfindings that any dangers of hearing loss were "obvious" and "avoidable." The district court also determined the danger of hearing loss did not exist unless the consumer decided to use the iPod "in an extreme way."

The district court did not err. The plaintiffs admit that the iPod has an "ordinary purpose of listening to music," and nothing they allege suggests iPods are unsafe for that use or defective. The plaintiffs recognize that iPods play music, have an adjustable volume, and transmit sound through earbuds. The third amended complaint includes statements that (1) the iPod is capable of playing 115 decibels of sound; (2) consumers may listen at unsafe levels; and (3) iPod batteries can last 12 to 14 hours and are rechargeable, giving users the opportunity to listen for long periods of time. Taken as true, such statements suggest only that users have the option of using an iPod in a risky manner, not that the product lacks any minimum level of quality. See Am. Suzuki, 37 Cal.App.4th at 1296, 44 Cal. Rptr.2d 526.

The plaintiffs rely upon Hicks v. Kaufman & Broad Home Corp., 89 Cal.App.4th 908, 107 Cal.Rptr.2d 761 (Cal.Ct.App.2001), but that case is distinguishable. In Hicks, homeowners brought a putative class action alleging a defect in the foundations of their homes. The defect arose from the use of a material called Fibermesh, which, according to the homeowners, caused their foundations to "crack badly" and resulted in "insect and vermin infestation, bumps in the floor and premature wearing of carpeting." Id. at 923, 107 Cal.Rptr.2d 761. Although some of the foundations had not yet cracked, the court cited expert testimony suggesting that the cracks were "most likely" to develop, and stated, "We see no reason why a homeowner should have to wait for the inevitable injuries to occur before recovering damages to repair the defect and prevent injuries from occurring." Id. at 923, 107 Cal.Rptr.2d 761.

The Hicks plaintiffs identified the defect in the foundations, which was the use of Fibermesh, and the injury inevitably caused by that defect, a cracked foundation. Id. Hicks distinguished cases in which "there was no history of the products failing." Id.

In the present case, the plaintiffs make no allegations of any history of malfunction, but merely suggest possible changes to the iPod which they believe would make the product safer: (1) earbuds with noise-reduction features; (2) volume control software; (3) more and different warnings printed onto the actual iPod; and (4) a digital meter to display the output volume in decibels. The plaintiffs fail to allege, however, how the absence of their suggested changes caused any user an injury. The plaintiffs do not allege the iPods failed to do anything they were designed to do nor do they allege that they, or any others, have suffered or are substantially certain to suffer inevitable hearing loss or other injury from iPod use. Cf. Hicks, 89 Cal. App.4th at 923, 107 Cal.Rptr.2d 761. Accordingly, the district court correctly determined that the plaintiffs failed to allege sufficiently the breach of an implied warranty of merchantability. See id.; Am. Suzuki, 37 Cal.App.4th at 1298, 44 Cal. Rptr.2d 526.

III Express Warranty and Implied Warranty of Fitness for a Particular Purpose

The plaintiffs' third amended complaint alleged claims for breach of an express warranty and breach of the implied warranty of fitness for a particular purpose. However, the plaintiffs have apparently abandoned those claims on appeal, as their opening brief contains no discussion of them. "We review only issues which are argued specifically and distinctly in a party's opening brief ... We will not manufacture arguments for an appellant, and a bare assertion does not preserve a claim, particularly when, as here, a host of other issues are presented for review." Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir.1994). Thus, we affirm the district court's dismissal of those claims.

IV California's Unfair Competition Law

California's UCL prohibits unfair competition by means of any unlawful, unfair or fraudulent business practice. Cal. Bus. & Prof.Code §§ 17200-17210. Each prong of the UCL is a separate and distinct theory of liability. Kearns v. Ford Motor Co., 567 F.3d 1120, 1127 (9th Cir.2009).

To have standing under California's UCL, as amended by California's Proposition 64, plaintiffs must establish that they (1) suffered an injury in fact and (2) lost money or property as a result of the unfair competition. Cal. Bus. & Prof. Code § 17204; Walker v. Geico Gen. Ins. Co., 558 F.3d 1025, 1027 (9th Cir.2009). "In approving Proposition 64, the California voters declared their intent `to prohibit private attorneys from filing lawsuits for unfair competition where they have no client who has been injured in fact under the...