590 F.3d 955 (9th Cir. 2009), 08-16641, Birdsong v. Apple, Inc.

Docket Nº:08-16641.
Citation:590 F.3d 955
Opinion Judge:THOMPSON, Senior Circuit Judge:
Party Name: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.
Attorney:Jeff D. Friedman, Berkeley, CA, for the plaintiffs-appellants. David Bernick, New York, NY, for the defendant-appellee.
Judge Panel:Before: J. CLIFFORD WALLACE, DAVID R. THOMPSON and SIDNEY R. THOMAS, Circuit Judges.
Case Date:December 30, 2009
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
FREE EXCERPT

Page 955

590 F.3d 955 (9th Cir. 2009)

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.

December 30, 2009

Argued and Submitted Oct. 8, 2009.

Page 956

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

Page 957

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

Page 958

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 counter-findings that any dangers of hearing loss were " obvious" and "...

To continue reading

FREE SIGN UP