Robert Romoff v. General Motors LLC

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT ROMOFF; JOE SICILIANO,
individually and on behalf of all others
similarly situated,
Plaintiffs-Appellants,
v.
GENERAL MOTORS LLC,
Defendant-Appellee.
No. 22-55170
D.C. No.
3:21-cv-00938-WQH-BGS
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted December 6, 2022
Pasadena, California
Before: KELLY,** M. SMITH, and COLLINS, Circuit Judges.
Plaintiff-Appellants Robert Romoff and Joe Siciliano (together, “Plaintiffs”)
appeal the district court’s order granting Defendant-Appellee General Motors
LLC’s (“GM”) motion to dismiss their class action complaint. We have
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
FILED
JAN 30 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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jurisdiction under 28 U.S.C. § 1291, and we affirm.
We assume the parties’ familiarity with the record. We review de novo a
district court’s dismissal of a complaint under Rule 12(b)(6), taking all allegations
of material fact as true and construing the facts in the light most favorable to the
plaintiffs. Moore v. Mars Petcare US, Inc., 966 F.3d 1007, 1016 (9th Cir. 2020).
The complaint asserted violations of the California Unfair Competition Law
(UCL), Cal. Bus. & Prof. Code § 17200–17210, California Consumer Legal
Remedies Act (CLRA), Cal. Civ. Code § 1750–1784, and New Jersey Consumer
Fraud Act (NJCFA), N.J. Stat. Ann. § 56:8-1, and also brought claims of unjust
enrichment. ER 103–20. Deceptive conduct is required to state a claim for relief
under the relevant provisions of both California and New Jersey law. Under
California law, the standard is whether a reasonable consumer is likely to be
deceived. Patricia A. Murray Dental Corp. v. Dentsply Int’l, Inc., 227 Cal. Rptr.
3d 862, 873 (Cal. Ct. App. 2018). Under New Jersey law, the standard is whether
the average consumer would be misled. Union Ink Co. v. AT&T Corp., 801 A.2d
361, 379 (N. J. Super. Ct. App. Div. 2002).
Plaintiffs argue the district court erred by not considering McKell v.
Washington Mutual, Inc., 49 Cal. Rptr. 3d 227 (Cal. Ct. App. 2006) in determining
whether their complaint alleged deceptive conduct. We disagree. Plaintiffs have
not plausibly alleged deception, and McKell is inapposite. In McKell, the court

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allowed a UCL case to proceed where the plaintiffs attempted to obtain a home
loan from a bank that itemized a series of fees and charges without disclosing that
the amounts it paid were substantially less than it charged to plaintiffs. 49 Cal.
Rptr. 3d at 234–35. Here, by contrast, the destination fee is charged to the dealers
and paid by them to GM, regardless of Plaintiffs’ speculative reasoning concerning
what is responsible for the makeup of such fees. There is no allegation that GM
charged the dealers a lesser amount than is represented to consumers, enabling the
dealer to earn a secret profit from consumers. We hold that a reasonable or
average consumer would not be deceived by the destination charge underlying
each of Plaintiffs’ claims. Because there is no deception, the complaint fails to
state a plausible claim for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
AFFIRMED.

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