NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRUCE MCMAHON, on behalf of himself; 

and CHRISTOPHER BENGSTON, on 

behalf of himself; and all others similarly 

situated,

Plaintiffs - Appellants, 

 v. 

TAKE-TWO INTERACTIVE SOFTWARE, 

INC. and TAKE-TWO INTERACTIVE 

SOFTWARE, INC., DBA Rockstar, 

Erroneously Sued As Rockstar Games, Inc., 

Defendants - Appellees.

No. 17-56143

D.C. No.

5:13-cv-02032-VAP-SP

MEMORANDUM*

Appeal from the United States District Court

For the Central District of California

Virginia A. Phillips, District Judge, Presiding

Submitted December 5, 2018**

Pasadena, California

Before: TASHIMA and WARDLAW, Circuit Judges, and PRATT,*** District 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Robert W. Pratt, United States District Judge for the 

Southern District of Iowa, sitting by designation.

FILED

DEC 20 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Judge.

Bruce McMahon and Christopher Bengston appeal for the second time the 

Federal Rule of Civil Procedure 12(b)(6) dismissal of their putative class action 

against Take-Two Interactive Software, Inc. and Rockstar. McMahon and 

Bengston allege violations of California law relating to misrepresentations about 

access to Grand Theft Auto (GTA) Online on the packaging of the video game 

GTA V. We have jurisdiction under 28 U.S.C. § 1291, and review a district 

court’s Rule 12(b)(6) dismissal of a complaint de novo. Johnson v. Fed Home 

Loan Mortg. Corp., 793 F.3d 1005, 1007 (9th Cir. 2015). We affirm.

The district court correctly ruled that McMahon and Bengston had not 

plausibly alleged detrimental reliance on GTA V’s packaging. See Ashcroft v. 

Iqbal, 556 U.S. 662, 679 (2009). To bring a claim under California’s Unfair 

Competition Law (UCL), Cal. Bus. & Prof. Code § 17200 et seq., and False 

Advertising Law (FAL), Cal. Bus. & Prof. Code § 17500 et seq., a plaintiff must 

show that they lost money or property “as a result of” the alleged 

misrepresentation. Kwikset Corp. v. Superior Court, 246 P.3d 877, 885–88 (Cal. 

2011). “[T]he plaintiff ‘in all reasonable probability’ would not have engaged in 

the injury-producing conduct” but for the alleged misrepresentation. In re Tobacco 

II Cases, 207 P.3d 20, 39 (Cal. 2009) (quoting Mirkin v. Wasserman, 858 P.2d

568, 586 (Cal. 1993) (Kennard, J., concurring in part, dissenting in part)). 
3 

McMahon and Bengston allege they would not have purchased GTA V had they 

known GTA Online would launch two weeks later and instead would have waited

for a new video game console. Yet they also allege they purchased GTA V on its 

release day knowing the consoles were coming. Even when taken in the light most 

favorable to McMahon and Bengston, they have plausibly alleged only that they 

would have waited two weeks but still purchased the game. As the game’s price 

remained the same over this time, and GTA V did grant access to GTA Online two 

weeks later, any reliance did not cause McMahon and Bengston the economic 

harm required to bring suit under the UCL and FAL.

1

We affirm dismissal of the express warranty claim, Cal. Com. Code § 2313,

as the statement “Featuring GTA Online” did not specifically and unequivocally 

promise, or provide an explicit guarantee of, immediate access to GTA Online.

2

 

See Maneely v. Gen. Motors Corp., 108 F.3d 1176, 1181 (9th Cir. 1997) (citing 

 

1 We previously found standing on the theory that McMahon and Bengston

would have waited two weeks to purchase GTA V for a lower price. McMahon v. 

Take-Two Interactive, Inc., 640 F. App’x 669, 671 (9th Cir. 2016). The price of 

GTA V did not change in that time, and Plaintiffs no longer press this theory.

2 The district court dismissed the express warranty claim for lack of 

reasonable reliance. We do not reach this issue, but we note a split of authority on 

it. Compare Williams v. Beechnut Nutrition Corp., 229 Cal. Rptr. 605, 608 (Ct. 

App. 1986) (citing Burr v. Sherwin Williams Co., 268 P.2d 1041 (Cal. 1954))

(noting that reasonable reliance is required) with Weinstat v. Dentsply Int’l Inc., 

103 Cal. Rptr. 3d 614, 625 (Ct. App. 2010) (explaining reasonable reliance is not 

required but not discussing Beechnut). 
4 

Keith v. Buchanan, 220 Cal. Rptr. 392, 397 (Ct. App. 1985)). For the same reason, 

we affirm dismissal of the implied warranty claim that goods conform to “promises 

or affirmations” on product packaging. See Cal. Com. Code § 2314(2)(f).

We further conclude the district court did not err in dismissing the implied 

warranty claim that goods be fit for their ordinary purpose. See Cal. Com. Code 

§ 2314(2)(c). GTA V worked properly and granted access to GTA Online when 

the latter launched, and so did not “lack[] ‘even the most basic degree of fitness for 

ordinary use.’” Birdsong v. Apple, Inc., 590 F.3d 955, 958 (9th Cir. 2009) (quoting 

Mocek v. Alfa Leisure, Inc., 7 Cal. Rptr. 3d 546, 549 (Ct. App. 2003)). 

Finally, we affirm the dismissal of McMahon and Bengston’s claim for 

implied warranty of fitness for a particular purpose, Cal. Com. Code § 2315, 

because they alleged no facts as to why their “particular purpose” differed from the 

ordinary purpose for which goods are used, namely to play video games for 

entertainment. See Mills v. Forestex Co., 134 Cal. Rptr. 2d 273, 282 n.4 (Ct. App. 

2003) (citing Am. Suzuki Motor Corp. v. Superior Court, 44 Cal. Rptr. 2d 526, 528 

n.2 (Ct. App. 1995)). As the state law warranty claims were properly dismissed, 

the Song-Beverly Act claim premised on those underlying state warranty claims 

was properly dismissed as well. Cal. Civ. Code § 1790.

Accordingly, the district court’s order dismissing the Second Amended 

Complaint with prejudice is AFFIRMED.