June Johnson v. Wal-Mart Stores, Inc.
544 F. App'x 696
9th Cir.
2013
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Docket

June Woolverton JOHNSON, an individual, on behalf of herself and all others similarly situated, Plaintiff-Appellant, v. WAL-MART STORES, INC., a Delaware corporation, Defendant-Appellee.

No. 12-55233

United States Court of Appeals, Ninth Circuit

Argued and Submitted Oct. 8, 2013. Filed Oct. 30, 2013.

696

court and respectfully dissent.1

Mickel Montalban Arias, Esquire, Alfredo Torrijos, Arnold Wang, Arias Ozzello & Gignac, LLP, Los Angeles, CA, for Plaintiff-Appellant.

Nina Diana Boyajian, Robert James Herrington, Esquire, Greenberg Traurig LLP, Los Angeles, CA, for Defendant-Appellee.

Before: PREGERSON, WARDLAW, and TALLMAN, Circuit Judges.

MEMORANDUM*

June Johnson appeals the Rule 12(b)(6) dismissal with prejudice of her putative class action against Wal-Mart. The gravamen of Johnson‘s complaint is that Wal-Mart allegedly misrepresented that it charged her a nine dollar “recycling fee” with her purchase of a seventy-seven dollar car battery because the “recycling fee” was required by California law, when, in fact, California does not require such a fee. We have jurisdiction under 28 U.S.C. § 1291, and we reverse.

1. The district court erred by concluding that Johnson alleged insufficient injury-in-fact under California law to state a claim upon which relief can be granted. A plaintiff suffers economic injury-in-fact under California law if he “surrender[s] in a transaction more ... than he ... otherwise would have” or is “required to enter into a transaction, costing money or property, that would otherwise have been unnecessary.” ; accord (noting that a plaintiff suffers economic injury if induced “to spend more than he otherwise would have spent“).

Johnson alleges that she would not have paid the additional nine dollar fee if she had known that California law did not require her to pay it and that Wal-Mart intended to keep the nine dollars for itself. On a motion to dismiss, we accept these factual allegations as true. . Drawing upon our “judicial experience and common sense,” , we conclude that these factual allegations permit a reasonable inference that Johnson paid more “than she otherwise would have” if Wal-Mart had not engaged in the alleged misrepresentation, . Johnson‘s claim is “plausible on its face” because it is reasonable to infer that Johnson, if correctly informed, would not have given Wal-Mart the nine dollar fee in addition to paying seventy-seven dollars for the battery. .

The district court erred by relying on , which is inapposite. In Bower, the plaintiff characterized her injury as being “denied any opportunity [to] shop around for retailers that do not charge consumers this discretionary fee.” (alteration in original). Here, by contrast, Johnson‘s claimed injury is the actual loss of nine dollars. On appeal, Wal-Mart asserts that , requires affirmance. In Peterson, however, the plaintiffs “[did] not allege they paid more for the insurance due to defendant‘s collecting a commission.” . Here, Johnson does allege that she paid more because of Wal-Mart‘s challenged conduct.

2. The district court also erred by determining that Johnson failed to satisfy the pleading requirements of Fed. R. Civ. P. 9(b). Rule 9(b) requires a plaintiff averring fraud to plead the “who, what, when, where, and how” of the alleged misconduct. . He must also offer “an explanation as to why the statement or omission complained of was false or misleading.” (en banc), superseded by statute on other grounds as stated in .

Johnson‘s complaint satisfies these requirements. She alleges that, at its Ridgecrest, California, store on August 3, 2010, Wal-Mart implicitly misrepresented to her that it was required by law to charge the nine dollar “recycling fee” by posting a sign stating that “[s]ome states require a fee when you buy a new battery” and by charging the fee, identifying it as a “recycling fee” on her receipt. She alleges falsity because California does not require such a fee and Wal-Mart “actively concealed” the truth. The district court‘s stated rationale—that Wal-Mart‘s statements were true and Johnson simply misunderstood the law—erroneously evaluated the merits of Johnson‘s claims rather than the particularity of her pleadings. Johnson‘s allegations make it unequivocally clear to Wal-Mart what conduct it must defend. See .

3. The district court did not hold that any misrepresentations made by Wal-Mart were nonactionable statements of the law, , as Wal-Mart now suggests. And we decline Wal-Mart‘s invitation to affirm on these alternative grounds. “If a misrepresentation as to a matter of law includes, expressly or by implication, a misrepresentation of fact, the recipient is justified in relying upon the misrepresentation of fact to the same extent as though it were any other misrepresentation of fact.” Restatement (Second) of Torts § 545(1) (1977); see also (discussing the Restatement‘s position that misrepresentations of law are not actionable if they do not “include[] a misrepresentation of fact“). Wal-Mart‘s sign and receipt may well have implied a factual assertion that California, not Wal-Mart, would receive the recycling fee.

The panel retains jurisdiction over any further appeals in this action.

REVERSED AND REMANDED.

Notes

1
In light of its disposition, the majority does not treat Cuenca‘s other arguments—neither of which, like his voluntary-departure due process claim, were made below. Cuenca correctly asserts that the state law under which he was convicted punishes more conduct than is encompassed within the federal definition of a “controlled substance” offense in 8 U.S.C. § 1227(a)(2)(B)(i). Cuenca, however, admitted during his plea colloquy in the state court, that he possessed methamphetamine, which made him removable under 8 U.S.C. § 1227(a)(2)(B)(i). The record thus established the requisite crime under the modified categorical approach. See . Nor has Cuenca demonstrated that his attorney‘s decision to pursue expungement in state court rather than appeal the immigration judge‘s removal order to the BIA plausibly affected the outcome of his removal proceedings. Absent some alteration of the crime of conviction in state court proceedings, Cuenca could not escape removal under § 1227(a)(2)(B)(i). And, Cuenca was unsuccessful in the expungement efforts.
*
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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