FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KEITH CLEMENS, individually and  No. 06-56410

on behalf of all others similarly D.C. No.

situated, CV-05-08484-JFW

Plaintiff-Appellant,  ORDER

v. AMENDING

DAIMLERCHRYSLER CORPORATION, OPINION AND

Defendant-Appellee. AMENDED

OPINION 

Appeal from the United States District Court

for the Central District of California

John F. Walter, District Judge, Presiding

Argued and Submitted

April 11, 2008—Pasadena, California

Filed June 19, 2008

Amended July 24, 2008

Before: William C. Canby, Jr. and Jay S. Bybee,

Circuit Judges, and Roger L. Hunt,* District Judge.

Opinion by Judge Canby

*The Honorable Roger L. Hunt, Chief United States District Judge for

the District of Nevada, sitting by designation. 

9123
COUNSEL

John F. Edgar, Kansas City, Missouri, for the plaintiffappellant. 

Frederick D. Baker, Sedgwick, Detert, Moran & Arnold, LLP,

San Francisco, California, for the defendant-appellee. 

9126 CLEMENS v. DAIMLERCHRYSLER CORP.
ORDER

This court’s mandate of July 13, 2008, is RECALLED. 

The opinion of this court filed on June 19, 2008, slip op.

at 7095, is amended as follows: 

1. At slip op. at 7103, amend the second sentence of the

first paragraph of Subsection B (beginning “In California, a

plaintiff . . .”), so that it states:

Under California Commercial Code section 2314,

the implied warranty provision invoked by Clemens,

a plaintiff asserting breach of warranty claims must

stand in vertical contractual privity with the defendant. 

2. At slip op. at 7104, amend the second-to-last textual

sentence of Subsection B so that it states:

Nonetheless, California courts have painstakingly

established the scope of the privity requirement

under California Commercial Code section 2314,

and a federal court sitting in diversity is not free to

create new exceptions to it. 

The amended opinion, incorporating these changes, follows. 

The mandate shall issue forthwith.

OPINION

CANBY, Circuit Judge: 

Keith Clemens1 brought this class action against Daimler1The parties have stipulated to the dismissal of claims by another named

plaintiff, James Beirne. 

CLEMENS v. DAIMLERCHRYSLER CORP. 9127
Chrysler Corporation alleging that DaimlerChrysler breached

express and implied warranties and committed fraud in the

sale of Dodge Neon cars containing defective head gaskets

from 1995 to 1998. The district court granted DaimlerChrysler’s Rule 12(b)(6) motion to dismiss the warranty claims. It

also granted DaimlerChrysler’s motion for summary judgment on the fraud claims, holding that one claim was barred

by the statute of limitations and the other failed on the merits.

Clemens appealed all of these rulings, and we affirm. 

FACTS

Clemens bought a new 1998 Dodge Neon from an independent Dodge dealership. After driving the car for approximately 50,000 miles, Clemens noticed that the engine had

begun to leak oil. The oil leak worsened, and when the odometer reached 60,000 miles, Clemens performed some research

on the internet and learned that head gasket failure (and

resulting oil leaks) were a common problem on this model

automobile. 

In September 2002, a Chrysler-authorized service center

referred Clemens to a customer service hotline, which denied

his request for a repair discount. Rather than pay for the

repair, Clemens replaced the head gasket himself at a cost of

$70, videotaping the repair process. He claims that, had he

known the head gasket was likely to fail, he would not have

purchased a Dodge Neon. 

DaimlerChrysler provided the following express warranty

with the automobile: 

The Basic Warranty covers the cost of all parts and

labor needed to repair any defective item on your

vehicle that was supplied by Chrysler—that is,

defective in material, workmanship or factory preparation. There is no list of covered parts since the only

exception is tires. You pay nothing for these repairs.

9128 CLEMENS v. DAIMLERCHRYSLER CORP.
These warranty repairs or adjustments—including all

parts and labor connected with them—will be made

by your dealer at no charge, using new or remanufactured parts. 

This warranty was expressly limited in duration to 36 months

from the date of purchase, or 36,000 miles on the odometer,

whichever occurred first. 

Clemens filed his class action in December 2005, alleging

that DaimlerChrysler breached express and implied warranties

under state law and under the Magnuson-Moss Act, 15 U.S.C.

§ 2310. Clemens also alleged that DaimlerChrysler had fraudulently failed to disclose the head gasket problem under California’s common law fraud statute, Cal. Civ. Code §§ 1709-

1710,2 and California’s Unfair Competition Law (UCL) statute, Cal. Bus. & Prof. Code § 17200. 

The district court dismissed the express warranty claim

because the head gasket failure did not occur until after the

express warranty period had expired. The implied warranty

claim was dismissed for lack of contractual privity between

DaimlerChrysler and Clemens. Derivative claims under the

Magnuson-Moss Act were dismissed as well. The district

court granted summary judgment on the Civil Code fraud

claim because the limitations period had run, no equitable

tolling was warranted, and, in the alternative, the facts shown

were inadequate to support the claim. For this last reason,

summary judgment was also granted on the UCL claim. 

DISCUSSION

We review de novo dismissals pursuant to Federal Rule of

Civil Procedure 12(b)(6). Burgert v. Lokelani Bernice Pauahi

Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000). To avoid a

2These provisions codify in part the common law tort of fraud. LiMandri v. Judkins, 52 Cal. App. 4th 326, 337 n.5 (1997). 

CLEMENS v. DAIMLERCHRYSLER CORP. 9129
Rule 12(b)(6) dismissal, a complaint need not contain detailed

factual allegations; rather, it must plead “enough facts to state

a claim to relief that is plausible on its face.” Bell Atl. Corp.

v. Twombly, 127 S. Ct. 1955, 1974 (2007). We review a grant

of summary judgment de novo. Devereaux v. Abbey, 263 F.3d

1070, 1074 (9th Cir. 2001). 

I

We begin with Clemens’s claims that DaimlerChrysler

breached express and implied warranties. The district court

held—and Clemens does not dispute—that the claims under

the Magnuson-Moss Act stand or fall with his express and

implied warranty claims under state law.3 Therefore, this

court’s disposition of the state law warranty claims determines the disposition of the Magnuson-Moss Act claims. 

A. Breach of Express Warranty 

The district court properly dismissed Clemens’s claim for

breach of express warranty because Clemens has alleged no

such breach. The head gasket functioned throughout the

36,000 miles or three years for which it was warranted. Clemens attempts to escape this conclusion by arguing that the

warranty expressly applies to “any defective item,” that the

defect allegedly existed before the warranty expired, and that

DaimlerChrysler had knowledge of the defect at the time of

3

15 U.S.C. § 2310(d) provides that “a consumer who is damaged by the

failure of a supplier, warrantor, or service contractor to comply with any

obligation under this chapter, or under a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and

equitable relief . . . .” Clemens alleges a violation of the Act only insofar

as DaimlerChrysler may have breached its warranties under state law;

there is no allegation that DaimlerChrysler otherwise failed to comply

with the Magnuson-Moss Act. Therefore, the federal claims hinge on the

state law warranty claims. See Schimmer v. Jaguar Cars, Inc., 384 F.3d

402, 405 (7th Cir. 2004) (noting that the Magnuson-Moss Act borrows

state law causes of action). 

9130 CLEMENS v. DAIMLERCHRYSLER CORP.
sale. Therefore, he claims, the expiration of the warranty is no

obstacle. 

[1] California has adopted a doctrine from the Second Circuit that forecloses these arguments. “The general rule is that

an express warranty does not cover repairs made after the

applicable time or mileage periods have elapsed.” Daugherty

v. Am. Honda Motor Co., 144 Cal. App. 4th 824, 830 (2006)

(quoting Abraham v. Volkswagen of Am., Inc., 795 F.2d 238,

250 (2d Cir. 1986)). Abraham rejected the holding of Alberti

v. Gen. Motors Corp., 600 F. Supp. 1026 (D.D.C. 1985),

which had held that a breach-of-warranty claim for postwarranty component problems could proceed after the warranty period if the defendant knew of the defects at the time

of sale. Abraham, 795 F.2d at 250. As the Abraham court recognized, Alberti conflated notions of express and implied

warranty and pushed the definition of “defect” to the breaking

point. 

Every manufactured item is defective at the time of sale in

the sense that it will not last forever; the flip-side of this original sin is the product’s useful life. If a manufacturer determines that useful life and warrants the product for a lesser

period of time, we can hardly say that the warranty is implicated when the item fails after the warranty period expires.

The product has performed as expressly warranted. Claims

regarding other buyer expectations and the manufacturer’s

state of mind properly sound in fraud and implied warranty.

[2] Accordingly, the California Court of Appeal has joined

the Second Circuit in rejecting the holding of Alberti for the

“general rule” of Abraham. See Daughtery, 144 Cal. App. 4th

at 831 (“Like the court in Abraham, we do not find the reasoning of Alberti persuasive and decline to follow it.” (internal quotation marks and alterations omitted)). The repairs in

this case were made after the warranty period expired. Therefore, we affirm the dismissal of the express warranty claims.

CLEMENS v. DAIMLERCHRYSLER CORP. 9131
B. Breach of Implied Warranty

[3] Clemens’s implied warranty claim also fails, but for a

different reason. Under California Commercial Code section

2314, the implied warranty provision invoked by Clemens, a

plaintiff asserting breach of warranty claims must stand in

vertical contractual privity with the defendant. Anunziato v.

eMachines, Inc., 402 F. Supp. 2d 1133, 1141 (C.D. Cal.

2005). A buyer and seller stand in privity if they are in adjoining links of the distribution chain. Osborne v. Subaru of Am.

Inc., 198 Cal. App. 3d 646, 656 n.6 (1988). Thus, an end consumer such as Clemens who buys from a retailer is not in

privity with a manufacturer. Id.

Some particularized exceptions to the rule exist. The first

arises when the plaintiff relies on written labels or advertisements of a manufacturer. See Burr v. Sherwin Williams Co.,

42 Cal. 2d 682, 696 (Cal. 1954). The other exceptions arise

in special cases involving foodstuffs, pesticides, and pharmaceuticals, and where the end user is an employee of the purchaser. See id. at 695; Windham at Carmel Mountain Ranch

Ass’n v. Superior Court, 109 Cal. App. 4th 1162, 1169

(2003); Fieldstone Co. v. Briggs Plumbing Prods., Inc., 54

Cal. App. 4th 357, 369 (1997); Gottsdanker v. Cutter Labs.,

182 Cal. App. 2d 602, 608 (1960). Clemens does not claim

that any of these exceptions apply directly. Instead, he urges

that they are exemplary rather than exhaustive, and that similar equities support an exception for his case. 

[4] We decline this invitation to create a new exception that

would permit Clemens’s action to proceed. So doing, we

acknowledge that state courts have split on this privity question, see Rothe v. Maloney Cadillac, Inc., 492 N.E.2d 497,

502 (Ill. App. Ct. 1986), aff’d in part and rev’d in part, Rothe

v. Maloney Cadillac, Inc., 518 N.E.2d 1028 (Ill. 1988) (collecting cases on both sides), and that the requirement may be

an archaism in the modern consumer marketplace. See Hyundai Motor Am., Inc. v. Goodin, 822 N.E.2d 947, 952-59 (Ind.

9132 CLEMENS v. DAIMLERCHRYSLER CORP.
2005) (discussing the history of the privity requirement at

length and rejecting its application to consumer—

manufacturer warranty claims). Nonetheless, California courts

have painstakingly established the scope of the privity

requirement under California Commercial Code section 2314,

and a federal court sitting in diversity is not free to create new

exceptions to it. See Day & Zimmermann, Inc. v. Challoner,

423 U.S. 3, 4 (1975). A lack of vertical privity requires the

dismissal of Clemens’s implied warranty claims. 

II

We next turn to Clemens’s Civil Code and UCL claims.

The district court concluded that Clemens’s Civil Code fraud

claims were time-barred by the three-year statute of limitations set out in California Code of Civil Procedure section

338(d). Clemens argues that the beginning of the limitations

period should have been postponed by the discovery rule or

that limitations should have been tolled by the filing of a similar action in Illinois. We disagree with both contentions. 

A. The Discovery Rule 

[5] In California, the discovery rule postpones accrual of a

claim until “the plaintiff discovers, or has reason to discover,

the cause of action.” Norgart v. Upjohn Co., 21 Cal. 4th 383,

397 (Cal. 1999). California applies a special standard in cases

of fraudulent concealment, which Clemens claims here. In

these cases, the plaintiff must show: “(1) when the fraud was

discovered; (2) the circumstances under which it was discovered; and (3) that the plaintiff was not at fault for failing to

discover it or had no actual or presumptive knowledge of facts

sufficient to put him on inquiry.” Baker v. Beech Aircraft

Corp., 39 Cal. App. 3d 315, 321 (1974). “A plaintiff must

affirmatively excuse his failure to discover the fraud within

three years by showing that he was not negligent in failing to

make the discovery sooner and that he had no actual or preCLEMENS v. DAIMLERCHRYSLER CORP. 9133
sumptive knowledge of facts sufficient to put him on inquiry.”

Bedolla v. Logan & Frazer, 52 Cal. App. 3d 118, 129 (1975).

[6] Clemens has failed to carry this burden. In his deposition, he testified that prior to three years before the filing of

this action, he performed research on the internet and learned

that head gasket failure was a “common problem” in Dodge

Neon cars. Clemens knew at that time that DaimlerChrysler

was offering discounts to replace some head gaskets after the

warranty period. His requests for repair discounts after the

warranty period expired, along with his efforts to videotape

his repair process (apparently in preparation for litigation)

both imply a suspicion of wrongdoing, and both occurred

more than three years before he filed his action. Clemens was

unable to identify any event between that time and the time

he contacted his attorneys that affected his thinking about the

lawsuit. Under Bedolla, the start of the limitations period is

postponed only if Clemens has made an affirmative showing

that he lacked inquiry notice and subsequently gained such

notice less than three years before filing his action. He has not

done so. Thus, we conclude that the discovery rule did not

prevent the running of limitations to bar Clemens’s claim. 

B. The Illinois Action

In 2001, a nationwide class action concerning Dodge Neon

head gaskets was filed in Illinois. It is undisputed that Clemens was a member of the nationwide class that the plaintiffs

in that case sought to certify. Here, as in the district court,

Clemens argues that his claim may proceed under a theory of

cross-jurisdictional tolling because he relied upon the Illinois

action to vindicate his rights. We agree with the district court

that this argument must fail. 

[7] In some instances, a plaintiff can rely on the filing of

a prior class action to vindicate the right in question and toll

the statute in the event that the class is not ultimately certified.

See Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554

9134 CLEMENS v. DAIMLERCHRYSLER CORP.
(1974). A handful of states have applied this rule when a class

action is filed in another jurisdiction. See Ravitch v. Pricewaterhouse, 793 A.2d 939, 943-44 (Pa. Super. Ct. 2002) (collecting cases going both ways but rejecting tolling); see also,

e.g., Staub v. Eastman Kodak Co., 726 A.2d 955, 965-67 (N.J.

Super. Ct. App. Div. 1999) (allowing tolling); Vaccariello v.

Smith & Nephew Richards, Inc., 763 N.E.2d 160, 163 (Ohio

2002) (allowing tolling). The California Supreme Court has

not adopted such cross-jurisdictional tolling, however, and

few states do. See Maestas v. Sofamor Danek Group, Inc., 33

S.W.3d 805, 808 (Tenn. 2000) (citing state court decision

adopting cross-jurisdictional tolling). As the Maestas court

noted, several federal courts have declined to import the doctrine into state law where it did not previously exist. See, e.g.,

Wade v. Danek Med., Inc., 182 F.3d 281, 287-88 (4th Cir.

1999) (citing Virginia’s lack of interest in furthering the economy of class action procedures in another jurisdiction, the risk

that forum-shopping plaintiffs from out of state would swell

the dockets of Virginia’s courts, and the unwieldy prospect of

tying Virginia’s statute of limitations to the resolution of

claims in other jurisdictions). 

[8] Accordingly, the weight of authority and California’s

interest in managing its own judicial system counsel us not to

import the doctrine of cross-jurisdictional tolling into California law. The rule of American Pipe—which allows tolling

within the federal court system in federal question class

actions—does not mandate cross-jurisdictional tolling as a

matter of state procedure. We therefore conclude that the filing of the Illinois action did not toll the statute, and Clemens’s

Civil Code fraud claim is barred by the three-year statute of

limitations. 

III

[9] Finally, we address the district court’s grant of summary judgment on the merits of Clemens’s UCL claim. The

UCL statute allows claims for unfair, unlawful, or fraudulent

CLEMENS v. DAIMLERCHRYSLER CORP. 9135
business practices. Cal. Bus. & Prof. Code § 17200. On

appeal, Clemens contends only that DaimlerChrysler’s conduct was fraudulent or unfair within the meaning of the statute. California authority makes clear that both claims are

meritless. 

A. Fraudulent Conduct

[10] Clemens has presented insufficient evidence in support

of his claim that DaimlerChrysler fraudulently concealed any

head gasket defect in violation of the UCL. Generally, to be

actionable under the UCL, a concealed fact must be material

in the sense that it is likely to deceive a reasonable consumer.

Aron v. U-Haul Co. of Cal., 143 Cal. App. 4th 796, 806

(2006). Unlike a common law fraud claim, a UCL fraud claim

requires no proof that the plaintiff was actually deceived.

Daugherty, 144 Cal. App. 4th at 838. Instead, the plaintiff

must produce evidence showing “a likelihood of confounding

an appreciable number of reasonably prudent purchasers exercising ordinary care.” Brockey v. Moore, 107 Cal. App. 4th

86, 99 (2003). Surveys and expert testimony regarding consumer assumptions and expectations may be offered but are

not required; anecdotal evidence may suffice, although “a few

isolated examples” of actual deception are insufficient. Id.

(repudiating federal district court decisions which, like the

subsequent case Chamberlan v. Ford Motor Co., 369 F. Supp.

2d 1138, 1145 (N.D. Cal. 2005), suggest anecdotal evidence

of materiality is always insufficient under a “reasonable consumer” standard). 

In the context of post-warranty failure of engine components, California courts have viewed fraudulent concealment

actions under this statute with some skepticism, recently

affirming a dismissal on materiality grounds for failure to

allege that “(1) members of the public had any expectation or

made any assumptions that [DaimlerChrysler’s] exhaust manifolds would be made from cast iron, as opposed to tubular

steel, (2) the public had any expectation or made any assump9136 CLEMENS v. DAIMLERCHRYSLER CORP.
tions regarding the life span of the exhaust manifold of a

[DaimlerChrysler] vehicle, or (3) facts showing [DaimlerChrysler] had made any representation of any kind, much less

any misrepresentation, regarding its vehicles.” Bardin v.

DaimlerChrysler Corp., 136 Cal. App. 4th 1255, 1275 (2006).

In Daugherty, the California Court of Appeal applied that

materiality test in a case involving facts closely akin to those

in the instant case: the engine components at issue were

alleged to cause premature oil leaks that could, in turn, cause

potentially serious additional engine damage. 144 Cal. App.

4th at 827, 835-36. The court held that where “[t]he only

expectation buyers could have had about [a particular] engine

was that it would function properly for the length of [the manufacturer]’s express warranty,” the public was not likely to be

deceived. Id. at 838 (dismissing claim under Rule 12(b)(6)).

[11] Aside from his bare allegations, Clemens has produced

no evidence to suggest that a reasonable consumer would

have expected or assumed any particular head gasket lifespan

in excess of the warranty period. Moreover, the facts in the

record speak to the contrary. Clemens testified in his deposition that at the time of purchase, he never made inquiries

about warranties, repair costs, or the lifespan of the engine.

His purchasing preferences related to price and on-road performance. He admitted that when he bought the Neon, he had

no idea how long he expected to keep it. He continued to

drive the car for nine months (about 10,000 miles) after he

learned of the oil leak. 

[12] The UCL would permit Clemens to offer additional

evidence of consumer expectations, but he offers only evidence concerning his personal experience. His largely undefined personal assumptions and expectations do not support a

finding that the 60,000-mile lifespan of the head gasket was

material even to his own purchasing decision; he has not produced sufficient evidence that the failure to disclose was

likely to deceive a reasonable consumer. Therefore, his claim

of fraudulent conduct in violation of the UCL fails. 

CLEMENS v. DAIMLERCHRYSLER CORP. 9137
B. Unfair Conduct 

[13] Clemens also argues that summary judgment was

improper because DaimlerChrysler engaged in “unfair” conduct under UCL. Daugherty forecloses this claim. “[T]he failure to disclose a defect that might, or might not, shorten the

effective life span of an automobile part that functions precisely as warranted throughout the term of its express warranty cannot be characterized as causing a substantial injury

to consumers, and accordingly does not constitute an unfair

practice under the UCL.” Daugherty, 144 Cal. App. 4th at

839. 

CONCLUSION

Clemens cannot proceed on his express warranty claim

because he has not alleged that his Dodge Neon failed to perform as expressly warranted. His implied warranty claim fails

because he is not in vertical privity with DaimlerChrysler as

required by California law. Dismissal was therefore appropriate as to both claims under state law and the Magnuson-Moss

Act. 

Because Clemens had inquiry notice of fraud more than

three years before the filing of this action, the statute of limitations bars his Civil Code fraud claim. Clemens cannot proceed under the UCL because California courts have made it

clear that DaimlerChrysler’s conduct was not unfair within

the meaning of the statute and Clemens has produced insufficient evidence that the failure rate of the head gasket was

material to a reasonable consumer. The judgment of the district court is therefore 

AFFIRMED.

9138 CLEMENS v. DAIMLERCHRYSLER CORP.