author: ERICKSON, District Judge:

text:
    Serena KWAN, an individual, On Behalf of Herself and All Others Similarly Situated, Plaintiff-Appellant, v. SANMEDICA INTERNATIONAL, a Utah Limited Liability Company, Defendant-Appellee.
    No. 15-15496
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted January 12, 2017, San Francisco, California
    Filed April 21, 2017

      Stewart M. Weltman (argued) and Max A. Stein, Boodell & Domanskis LLC, Chicago, Illinois; Elaine Ryan and Patricia N. Syverson, Bonnett Fairbourn Friedman & Balint P.C., Phoenix, Arizona; Manfred Muecke, Bonnett Fairbourn Friedman & Balint P.C., San Diego, California; for Plaintiff-Appellant.
    Jason Kerr (argued), Christopher B. Sullivan, Mark J. Williams, and Steven William Garff, Price Parkinson & Kerr PLLC, Salt Lake City, Utah, for Defendant-Appellee.
    Before: J. CLIFFORD WALLACE and MILAN D. SMITH, JR., Circuit Judges, and RALPH R. ERICKSON, District Judge.

       The Honorable Ralph R. Erickson, United States District Judge for the District of North Dakota, sitting by designation.

   OPINION

ERICKSON, District Judge:

Serena Kwan appeals from the district court judgment dismissing her second amended complaint for failing to state a claim upon which relief can be granted. The district court correctly concluded that California law does not provide for a private cause of action to enforce the substantiation requirements of California’s unfair competition and consumer protection laws. Further, the district court did not err in concluding that Kwan’s second amended complaint failed to allege facts that would support a finding that SanMedica International’s claims regarding its product, Sero-Vital, were actually false. Accordingly, we

AFFIRM.

BACKGROUND FACTS AND PROCEDURAL HISTORY

On July 21, 2014, Plaintiff/Appellant, Serena Kwan, an Individual, On Behalf of Herself and All Others Similarly Situated (“Kwan”), filed a class action against Defendants/Appellees, SanMedica International, LLC (“SanMedica”), a Utah Limited Liability Company, and Sierra Research Group, LLC (“Sierra”), a Utah Limited Liability Company, alleging violations of California’s Unfair Competition Law (“UCL”) and California’s Consumers Legal Remedies Act (“CLRA”). Kwan filed a first amended complaint on August 27, 2014. The amended complaint was based on an allegation that the defendants falsely represented that then-product, SeroVital, provides a 682% mean increase in Human Growth Hormone (“HGH”) levels, that it was clinically tested, and that “peak growth hormone levels” are associated with “youthful skin integrity, lean musculature, elevated energy production, [and] adipose tissue distribution.”

On October 7, 2014, Sierra filed a motion under rule 12(b)(2) to dismiss for lack of jurisdiction. On October 16, 2014, Kwan filed a notice of voluntary dismissal of Sierra pursuant to rule 41(a)(l)(A)(I), Fed. R. Civ. P.

The court granted SanMedica’s motion to dismiss with leave to amend. The court reasoned that the first amended complaint was based entirely on allegations related to whether SanMedica’s claims regarding its product, SeroVital, were properly substantiated. Citing Cal. Bus. & Prof. Code § 17508, the court stated: “Individuals may not bring suit under the UCL or the CLRA alleging only that advertising claims lack substantiation” because that “right is reserved to ‘the Director of Consumer Affairs, the Attorney General, any city attorney, or any district attorney....’” The court instructed that if Kwan chose to amend her complaint, “she must allege facts from which the [c]ourt can conclude that Defendant’s advertising representations were false.” The court continued, “it is not enough for Plaintiff to attack the methodology of Defendant’s study; instead, she must allege facts affirmatively disproving Defendant’s claims.” The court advised:

For example, Plaintiff could allege that one or more of the authorities alluded to actually studied or tested the formula SeroVital contains and found that it does not produce a 682% mean increase in HGH levels, or that Plaintiff herself did not experience such an increase when using the product, or that a study exists somewhere demonstrating that a 682% increase is categorically impossible to achieve in an over-the-counter pill. Of course, Plaintiff should only allege these facts if she can do so in good faith.

Kwan filed a second amended complaint against SanMedica International, LLC, on December 1, 2014. In the second amended complaint, Kwan continues to maintain the two counts. Count one alleges violations of the California Unlawful Business and Practices Act. Count two alleges violations of the California Consumers Legal Remedies Act. Among several paragraphs containing conclusions of law and sweeping arguments, the second amended complaint contains the following material factual allegations:

1) SanMedica manufactures and sells SeroVital, an over-the-counter amino acid supplement represented as an HGH secretagogue, meaning it is supposed to “prompt the body to secrete HGH.”
2) SanMedica represents in its marketing campaign and on each label of SeroVital that:
(1) “It is clear that Growth Hormone has been associated with wrinkle reduction, decreased body fat, increased lean muscle mass, stronger bones, improved mood, heightened sex drive, and making users look and feel decades — not years, but DECADES — younger”; (2) “peak growth hormone levels” are “associated with: youthful skin integrity, lean musculature, elevated energy production, [and] adipose tissue distribution”; and (3) that SeroVital is clinically tested to boost human growth hormone (“HGH”) by a mean of 682% (hereafter the “682% HGH increase representation”).
3) These representations are false.
4) After being exposed to the representation, in May 2014, Kwan purchased one box of SeroVital online from San-Medica.
5) A 120 count bottle of SeroVital sells for approximately $99.00.
6) If she had known the truth about the product, or that it was being sold illegally, Kwan would not have purchased the product.
7) “There is no Credible Scientific Evidence to Support Defendant’s 682% HGH Increase Representation, HGH Fountain Of Youth Benefit Representations, And SeroVital Fountain of Youth And Body Composition Representations.”
8) The only study identified by Defendant’s website is not an example of scientific evidence recognized by experts, was never peer-reviewed, and was never published in a peer-reviewed journal.
9) The study is arguably incredible.
10) SeroVital is a dietary supplement that is sold illegally because San-Medica’s marketing claims are not properly substantiated as required by federal and state law regulating the sale of dietary supplements.
11) Kwan and other “Class members have been damaged in their purchases of the Product.”

Although the second amended complaint alleges that Kwan purchased SeroVital, it does not allege that she, or any of the purported class members, ever actually used the product.

SanMedica filed a motion to dismiss the second amended complaint under rule 12(b)(6), Fed. R. Civ. P., for failure to state a claim upon which relief can be granted. Because the second amended complaint failed to specifically allege facts to support a finding that SanMedica’s claims regarding SeroVital were actually false, the court concluded that Kwan was again merely alleging lack of substantiation. Because Kwan had been provided “the opportunity to amend her complaint, and she has once again failed to allege facts from which the [cjourt could conclude that Defendant’s advertising representations were false,” the court dismissed the matter with prejudice. Kwan timely appealed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the district court’s judgment granting a 12(b)(6) motion for failure to state a claim upon which relief can be granted. Johnson v. Fed. Home Loan Mortg. Corp., 793 F.3d 1005, 1007 (9th Cir. 2015). This court may affirm the dismissal “based on any ground supported by the record.” Johnson v. Riverside. Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008). A dismissal under rule 12(b)(6) “may be based on either a ‘lack of a cognizable legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’ ” Id. at 1121-22 (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)).

“The task of a federal court in a diversity action is to approximate state law as closely as possible in order to make sure that the vindication of the state right is without discrimination because of the federal forum.” Gee v. Tenneco, Inc., 615 F.2d 857, 861 (9th Cir. 1980); accord U.S. Fidelity and Guaranty Co. v. Lee Investments LLC, 641 F.3d 1126, 1133 (9th Cir. 2011) (“Perhaps a better way of putting it is to say that one of the goals in deciding state law questions is to do no harm to state jurisprudence.”). “[F]ederal courts are bound by the pronouncements of the state’s highest court on applicable. state law.” Ticknor v. Choice Hotels, Inc., 265 F.3d 931, 939 (9th Cir. 2001). Similarly, a federal court is “not free to reject a state judicial rule of law merely because it has not received the sanction of the state’s highest court, but it must ascertain from all available data what the state law is and apply it.” Estrella v. Brandt, 682 F.2d 814, 817 (9th Cir. 1982). “An intermediate state appellate court decision is a ‘datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.’ ” Id. at 817 (quoting West v. A.T.&T. Co., 311 U.S. 223, 237, 61 S.Ct. 179, 85 L.Ed. 139 (1940)); see also Lewis v. Tel. Empl. Credit Union, 87 F.3d 1537, 1546 (9th Cir. 1996) (citing In re Kirkland, 915 F.2d 1236, 1239 (9th Cir. 1990) to recognize that . where there is-no convincing evidence that the state supreme court would decide differently, ‘a federal court is obligated to follow the decisions of the state’s intermediate appellate courts’ ”).

DISCUSSION

1. Whether the California law regulating advertising provides a cause of action for private citizens alleging that marketing claims lack proper scientific substantiation.

The UCL provides:

It shall be unlawful for any person doing business in California and advertising to consumers in California to make any false or misleading advertising claims that (1) purport to be based on factual, objective, or clinical evidence, (2) compare the product’s effectiveness or safety to that of other brands or products, or (3) purport to be based on any fact.

Cal. Bus. & Prof. Code § 17508. The UCL does not provide a private cause of action unless a person suffers an injury in fact as . a result of unfair competition:

Actions for relief pursuant to this chapter shall be prosecuted exclusively in a court of competent jurisdiction by the Attorney General or a district attorney or by a county counsel authorized by agreement with the district attorney in actions involving violation of a county ordinance, or by a city attorney of a city having a population in excess of 750,000, or by a city attorney in a city or county or, with the consent of the district attorney, by a city prosecutor in a city having a full-time city prosecutor in the name of the people of the State of California upon their own complaint or upon the complaint of a board, officer, person, corporation, or association, or by a person who has suffered injury in fact and has lost money or property as a result of the unfair competition.

Cal. Bus. & Prof. Code § 17204.

The CLRA “shall be liberally construed and applied to promote its underlying purposes, which are to protect consumers against unfair and deceptive business practices and to provide efficient and economical procedures to secure such protection.” Cal. Civ. Code § 1760. The CLRA proscribes certain “unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer....” Cal. Civ. Code § 1770(a). Specific to the case at hand, the CLRA prohibits representing that goods have approval, ingredients, uses, or benefits “which they do not have” or representing that goods “are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another.” Cal. Civ. Code § 1770(a)(5) and (7). The CLRA provides: “Any consumer who suffers any damage as a result of the use or employment of a method, act, or practice declared unlawful by Section 1770 may bring an action against that person to recover or obtain” relief including actual damages, enjoining of “methods, acts, or practices”, restitution, punitive damages, or any “other relief that the court deems proper.” Cal. Civ. Code § 1780(a).

The California Supreme Court recognizes that both the UCL and the CLRA, with the purposes of promoting fair competition and consumer protection, contain “broad, sweeping language” to describe their substantive provisions. Loeffler v. Target Corp., 58 Cal.4th 1081, 171 Cal.Rptr.3d 189, 324 P.3d 50, 75 (2014) (quoting Kwikset Corp. v. Superior Court, 51 Cal.4th 310, 120 Cal.Rptr.3d 741, 246 P.3d 877, 883 (2011)). However, California’s highest state court also recognizes that these statutes do not give the courts the authority to “simply impose their own notions” of fairness and the legislature may “limit the judiciary’s power to declare conduct unfair.” Id., 171 Cal.Rptr.3d 189, 324 P.3d at 76 (quoting Cal-Tech Communications, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal.4th 163, 83 Cal.Rptr.2d 548, 973 P.2d 527, 541 (1999)). For example, if the legislature “has permitted certain conduct or considered a situation and concluded no action should lie, courts may not override that determination.” Id. (internal quotation marks omitted). “Moreover,” the California Supreme Court has explained, “in some instances, an action may not lie under the UCL because another statutory scheme provides the exclusive means for resolving disputes.” Id.

In National Council Against Health Fraud, Inc. v. King Bio Pharmaceuticals, Inc., (“King Bio”), the California Court of Appeal, Second District, after careful analysis of the statutory provisions addressing who may bring a legal action under the UCL, stated:

In sum, both private persons and prosecuting authorities may sue to enjoin false advertising and obtain restitution. When they bring such actions, both private persons and prosecuting authorities bear the burden of proving the advertising claims to be false or misleading. Prosecuting authorities, but not private plaintiffs, have the administrative power to request advertisers to substantiate advertising claims before bringing actions for false advertisement, but the prosecuting authorities retain the burden of proof in the false advertising actions.

107 Cal.App.4th 1386, 1344, 133 Cal.Rptr.2d 207 (2003).

In the fourteen years since King Bio was decided, courts, including several federal district courts, have cited it to require that private citizens bringing suit under the UCL or the CLRA properly allege proof that plaintiffs sustained injury from relying on marketing statements that were actually false. These courts have precluded private citizens from bringing actions that allege that the challenged advertising language lacked proper scientific substantiation. The California State Legislature has not amended the statutory language on which the King Bio holding relied. The California Supreme Court has not addressed King Bio’s holding directly. However, the California Supreme Court recognizes that the “overriding purpose” of Proposition 64, which amended the UCL and the CLRA in 2004, “was to impose limits on private enforcement actions[.]” In re Tobacco II Cases, 46 Cal.4th 298, 93 Cal.Rptr.3d 559, 207 P.3d 20, 39 (2009). Tobacco II concluded that the amending language “imposes an actual reliance requirement on plaintiffs prosecuting a private enforcement action under the UCL’s fraud prong.” Id. Reliance, according to the California Supreme Court, “is proved by showing that defendant’s misrepresentation is an ‘immediate cause’ of the plaintiffs conduct by showing that in its absence the plaintiff ‘in all reasonable probability’ would not have engaged in the injury-producing conduct.” Id. (internal quotation marks omitted) (emphasis added). The California Supreme Court’s references to “reliance” on a “misrepresentation” is consistent with King Bio’s requirement that private plaintiffs, unlike prosecuting authorities, do not have the power to require defendants to substantiate their advertising claims, and that private plaintiffs, like prosecuting authorities, have the burden of proving that the marketing claims are false or misleading.

Under the circumstances, it is readily apparent that King Bio’s holding is firmly established law in California. As this court has not been presented with any “convincing evidence” to decide differently, we are obligated to follow the holding in King Bio. Accord Lewis v. Telephone Employees Credit Union, 87 F.3d at 1546. The district court did not err in concluding that neither the UCL nor the CLRA provides Kwan with a private cause of action to enforce the substantiation provisions of Calfornia’s unfair competition or consumer protection laws.

2. Whether the district court erred when it concluded that the Second Amended Complaint failed to specifically allege facts to support a finding that SanMedica’s claims regarding SeroVital were actually false.

In order to “survive a rule 12(b)(6) motion to dismiss, a ‘plaintiff must allege enough facts to state a claim to relief that is plausible on its face.’ ” Turner v. City and County of San Francisco, 788 F.3d 1206, 1210 (9th Cir. 2015) (quoting Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008)). “In assessing whether a party has stated a claim upon which relief can be granted, a court must take all allegations of material fact as true and construe them in the light most favorable to the nonmoving party[.]” Turner, 788 F.3d at 1210. “[C]onclusory allegations of law and unwarranted inferences”, however, “are insufficient to avoid” dismissal. Id. (quoting Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009)). “[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Legal conclusions may provide a framework for a complaint, but “they must be supported by factual allegations.” Id. The court will assume the veracity of well-pleaded factual allegations “and then determine whether they plausibly give rise to an entitlement to relief.” Id. This plausibility standard requires more than “a sheer possibility that a defendant has acted unlawfully” but “is not akin to a probability standard.” Turner, 788 F.3d at 1210 (9th Cir. 2015) (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937). “ ‘A claim has facial plausibility when the plaintiff pleads content that allows the court to draw the reasonable inference that the defendant is hable for the misconduct alleged.’” Johnson, 793 F.3d at 1007 (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

Kwan asserts the second amended complaint sufficiently alleges false misrepresentation in at least two ways that do not implicate a mere lack of substantiation. First, she contends that she adequately pled falsity when she alleged that the “clinically tested” representation, at a minimum, falsely implied that the marketing claims of SeroVital’s health benefits were clinically proven by credible scientific proof. Secondly, she contends that the claims that growth hormone levels are associated with certain health benefits described in paragraph 1 of the second amended complaint falsely imply that defendant’s product claims were based on credible scientific proof. These allegations are conclusory and do nothing to support or prove the falsehood of the claims. Instead each of these is simply an allegation that defendant’s marketing claims lack scientific substantiation. Since California law does not provide a private cause of action for claims that advertising lacks substantiation, the failure to allege specific facts pointing to actual falsehood constitutes a fatal flaw.

In an attempt to resuscitate her complaint, Kwan invites the court to incorporate Lanham Act provisions into California’s unfair competition and consumer protection law by distinguishing between “establishment” and “non-establishment” claims. In support Kwan cites several cases decided under the Lanham Act or laws with similar provisions. In King Bio, however, the court made plain that the plaintiff carries the burden of proof in false advertising actions, stating (iWe are aware of no cases in which the burden of proof shifts to the defendant upon the filing of the complaint.” 107 Cal.App.4th at 1346-47, 133 Cal.Rptr.2d 207. Courts have recognized that no authority exists under California law for using the Lanham Act distinction between “establishment” and “non-establishment” claims as a means of shifting the burden of proof in California consumer protection law actions. E.g., Aloudi v. Intramedic Research Group, LLC, No. 15-cv-00882, 2015 WL 4148381, at *4 (N.D. Cal. 2015) (“Plaintiff does not cite any case in which the “establishment claim” standard has been applied outside the context of Lanham Act claims, and all of Plaintiffs cited authority exclusively analyzed Lanham Act claims.”). Like the plaintiff in Aloudi, Kwan has not cited any authority for applying the “establishment claim” standard outside of the Lanham Act context and, more specifically, has not cited any authority for applying Lanham Act analysis to private causes of action under the UCL or the CLRA.

The King Bio court stated:

Public policy in this regard has been clearly established by the Legislature. The Legislature has established as a general rule that the burden of proof is on the plaintiff to establish a defendant’s wrongdoing.... More specifically, the Legislature has confirmed that the burden of proof rests with the plaintiff in false advertising actions.... In Business and Professions Code section 17508, the Legislature has authorized prosecuting authorities to administratively seek substantiation of advertising claims from advertisers. If substantiation is not forthcoming, is inadequate, or fails to dispel the belief the advertising claim is false or misleading, the prosecuting authority may bring an action for false advertising under Business and Professions Code section 17535. In these actions for false advertising, the prosecuting authority is expressly assigned the burden of proof. It would be inappropriate to shift the burden of proof to the defendant in a private plaintiff false advertising action when- the private plaintiff is not statutorily authorized to seek substantiation of the advertising claim from the defendant.

107 Cal.App.4th at 1347-48, 133 Cal.Rptr.2d 207 (citations omitted).

Reading a requirement that Lanham Act distinctions apply would clearly violate recognized California law on the burden of proof placed on the plaintiff. The King Bio court emphasized:

there is nothing in the nature of a false advertising action that makes it difficult for a plaintiff to prove the allegations of the complaint. The homeopathic remedies are marketed and readily available for testing by the plaintiff. The falsity of the advertising claims may be established by testing, scientific literature, or anecdotal evidence. That NCAHF does not wish to bear the expense of proving its ease does not mean that the burden and expense should be shifted to King Bio.

Id. at 1348, 133 Cal.Rptr.2d 207.

The rationale behind the legislation regarding substantiation claims is to provide prosecuting authorities a means of protecting consumers while limiting “undue harassment of advertisers and is the least burdensome method of obtaining substantiation for advertising claims.” Id. at 1345, 133 Cal.Rptr.2d 207; accord McCrary v. Elations LLC, Slip Copy, No. EDCV 13-0242, 2014 WL 12561600, at *13 (C.D.Cal. Dec. 8, 2014) (noting that plaintiffs cites to Federal Trade Commission Act and Lan-ham Act cases “are not precedent that is applicable to” a case brought under the CLRA or the UCL).

The district court did not err by declining to address Kwaris complaint as if this were a case brought under the Lanham Act. Nor did it err in recognizing that the second amended complaint failed to allege facts that would support a finding that defendant’s marketing claims were actually false.

CONCLUSION

The district court applied established California law and correctly identified that the second amended complaint did not allege facts to support a finding that defendant’s advertising claims were actually false. We AFFIRM the order granting the motion to dismiss under rule 12(b)(6) of the Federal Rules of Civil Procedure. As the court provided Kwan with ample opportunity to amend her complaint to plead satisfactorily a cause of action under California law and Kwan was unable to do so, we AFFIRM the district court’s dismissal with prejudice.

AFFIRMED.

      . For purposes of oral argument only, we consolidated this appeal with the appeal in Julian Engel v. Novex Biotech, LLC, No. 15-15492. We address Engel in a concurrently filed memorandum disposition.

      . Several courts have followed the reasoning in King Bio in granting in full or in part motions for dismissal under rule 12(b)(6). These include: Franz v. Beiersdorf, Inc., No. 14cv2241, 2015 WL 4659104, at **2-3 (S.D. Cal. Aug. 5, 2015); Aloudi v. Intramedic Research Group, LLC, No. 15-cv-00882, 2015 WL 4148381, at **3-4, 6 (N.D. Cal. July 9, 2015); McCrary v. Elations Co., LLC, No. EDVC 13-0242, 2013 WL 6402217, at *3, *6 (C.D. Cal. April 24, 2013); and Marshall v. PH Beauty Labs, Inc., No. CV 15-02101, 2015 WL 3407906, at *3 (C.D. Cal. May 27, 2015). In Stanley v. Bayer Healthcare LLC, No. 11cv862, 2012 WL 1132920 (S.D. Cal. April 3, 2012), the district court followed the reasoning of King Bio in granting summary judgment against plaintiff. In Nilon v. Natural-Immunogenics Corp., No. 3:12cv00930, 2013 WL 5462288 (S.D. Cal. Sept. 30, 2013), the district court cited King Bio and cases citing King Bio in denying class action certification and ordering, sua sponte, that Plaintiff file an amended complaint because, as it stood, the complaint merely alleged lack of substantiation. The following courts have acknowledged the force of King Bio as precedent, but have at least partially denied dismissal because of factual allegations that distinguished the complaints from the complaint in King Bio: Mollicone v. Universal Handcraft, Inc., Slip Copy, No. 2:16-cv-07322, 2017 WL 440257, at **11-12 (C.D. Cal. Jan. 30, 2017); Melgar v. Zicam LLC, Slip Copy, No. 2:14-cv-00160, 2016 WL 1267870, at *10 (E.D. Cal. March 31, 2016); Fortillati v. Hylands, Inc. et al., No. CV 12-1983, 2015 WL 9685557, at **4-5 (C.D. Cal. Jan. 12, 2015); Bronson v. Johnson & Johnson, No. C 12-04184, 2013 WL 1629191 at **8-12 (N.D. Cal. April 16, 2013); and Hughes v. Ester C Co., 930 F.Supp.2d 439, 455-59 (E.D. New York 2013). See also Eckler v. Wal-Mart Stores, Inc., No. 12-CV-727, 2012 WL 5382218 at *1 (S.D. Cal. Nov. 1, 1012) (citing King Bio and stating: "The first question for the Court is whether Eckler’s false advertising claims under the Unfair Competition Law and Consumer Legal Remedies Act are really just “lack of substantiation” claims. It’s a problem if they are, because private litigants can’t bring those claims.”); In re Clorox Consumer Litigation, 894 F.Supp.2d 1224, 1232 (N.D. Cal. 2012) (“Consumer claims for lack of substantiation are not cognizable under California law.”).


source: Caselaw Access Project

author: CALLAHAN, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Donald Mitchell JOHNSON, AKA Ski Johnson, Defendant-Appellee.
    No. 15-30350
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted February 7, 2017 Seattle, Washington
    Filed April 21, 2017

      Chad Spraker (argued), Assistant United States Attorney; Michael W. Cotter, United States Attorney; United States Attorney’s Office, Helena, Montana; for Plaintiff-Appellant.
    Michael Donahoe (argued), Senior Litigator; Anthony R. Gallagher, Federal Defender; Federal Defenders of Montana, Helena, Montana; for Defendant-Appellee.
    Before: RICHARD A. PAEZ and CONSUELO M. CALLAHAN, Circuit Judges, and MORRISON C. ENGLAND, JR., District Judge.

       The Honorable Morrison C. England, Jr., United States District Judge for the Eastern District of California, sitting by designation.

   OPINION

CALLAHAN, Circuit Judge:

A jury convicted Donald “Ski” Johnson of wire fraud in violation of 18 U.S.C. § 1343. The district court sentenced Johnson to five years’ probation and ordered Johnson to pay $5,648.58 in restitution. On appeal, the government argues that the district court erred by considering only Johnson’s fraudulent conduct that occurred in Montana (the count of conviction) when determining restitution, and thus misinterpreted the Mandatory Victim Restitution Act (“MVRA”). See 18 U.S.C. § 3663A. We vacate the district court’s restitution order and remand for determination of whether Johnson’s conduct outside of Montana was related to his scheme to defraud.

BACKGROUND

In 2011, Johnson, using the alias Larry Toye, promoted a black-tie gala in Seattle, Washington. The event was intended to benefit the American Cancer Society and Johnson’s charity, the Jazz For Life Foundation. While on the phone with a promoter, Johnson, acting as Toye, falsely described himself as a Grammy-nominated musician. Johnson also promised the attendance of celebrities such as James Earl Jones and Michael Douglas. Neither Jones nor Douglas had any knowledge of the event, nor were they inclined to attend. The event was eventually, cancelled, but, by the time Johnson’s fraud was discovered, Johnson’s foundation had collected over $13,000 in ticket sales, $9,300 of which had been transferred to Johnson’s personal account.

Later in 2011, Johnson — this time under the alias Kevin Wright — contacted the Hospice of Palm Beach County in Florida to inquire about participating in the organization’s celebrity golf event. Johnson offered Grammy tickets to be auctioned at the event, with the proceeds split between the hospice and Johnson’s foundation. The tickets were auctioned for $12,000 ($5,500 of which was sent to Johnson’s foundation), but the tickets were never produced, and the purchaser did not attend the Gram-mys.

In May 2012, Johnson called Barb Rooney, Vice President of the Big Sky Resort in Montana. Johnson, again using the alias Kevin Wright, identified himself as a representative of both Sony and Johnson, a Grammy-nominated musician. In a similar fashion to his encounter with the Hospice of Palm Beach County, Johnson offered Grammy tickets to be auctioned off at a fundraiser organized by Big Brothers and Big Sisters (“BBBS”). The tickets were auctioned for $6,000. Johnson attempted to collect his share of the proceeds, but, after BBBS learned of Johnson’s misrepresentations, it returned the proceeds to the bidder.

Johnson was indicted in 2014 for one count of wire fraud in violation of 18 U.S.C. § 1343. The indictment alleged Johnson’s scheme to defraud extended from 2011 to 2014 and occurred “in the District of Montana and elsewhere.” However, the indictment specifically identified only a single Virginia-Montana wire transmission relating to the BBBS event. Johnson thus moved to limit the government’s trial evidence to that one event. The government argued in opposition that evidence of other fraud was admissible to prove Johnson’s scheme to defraud. The district court concluded that evidence of wire fraud not specifically charged in the indictment was inadmissible as improper propensity evidence under Federal Rule of Evidence 404(b)(2). Ultimately, the court restricted the government’s trial evidence to the BBBS event, stating in its pretrial ruling that “the government will not be permitted to prove the scheme underlying the Montana fraud by putting on evidence that Johnson employed the same scheme in another fraud outside of Montana.”

A jury convicted Johnson, and the government sought restitution for Johnson’s entire scheme, contending that he owed over $70,000. The district court considered additional evidence of Johnson’s scheme for sentencing enhancement purposes, but it refused to consider evidence beyond the BBBS event (the count of conviction) for restitution purposes and limited restitution to $5,648.58. The government appealed.

DISCUSSION

A. Jurisdiction and Standard of Review

We review de novo Johnson’s contention that we lack jurisdiction to consider the government’s challenge to the district court’s restitution order. United States v. Decinces, 808 F.3d 785, 789 (9th Cir. 2015) (‘We have jurisdiction to determine our own jurisdiction. We review this question de novo.” (internal citations omitted)).

This court has jurisdiction “of appeals from all final decisions.” 28 U.S.C. § 1291. “A sentence that imposes an order of restitution is a final judgment.” 18 U.S.C. § 3664(o); see also United States v. Brock-Davis, 504 F.3d 991, 993 (9th Cir. 2007) (finding court had jurisdiction under § 1291 to review restitution order). We therefore have jurisdiction to review the government’s appeal from a district court’s restitution order.

Johnson argues, however, that the government’s challenge to' the restitution order here is instead an attempt at an impermissiblé end-run around its failure to appeal the district court’s pretrial eviden-tiary ruling, which limited the government’s trial evidence to fraud relating to the BBBS event. According to Johnson, the government was required to appeal immediately, and, by failing to do so, it waived review of this issue in its entirety.

Although the government could have appealed the district court’s evidentiary ruling, see United States v. Loftis, 843 F.3d 1173, 1175-76 (9th Cir. 2016), it was not required to do so. The evidentiary ruling was an interlocutory order, and “we have never held that failure to appeal an interlocutory order barred raising the decided issue after entry of a final judgment.” In re Frontier Props., Inc., 979 F.2d 1358, 1364 (9th Cir. 1992); see Baldwin v. Redwood City, 540 F.2d 1360, 1364 (9th Cir. 1976) (“[A]n interlocutory appeal is permissive, not mandatory[,]” and, “[w]hen an appeal is not taken, the interlocutory order merges in the final judgment and may be challenged in an appeal from that judgment.”). The government is therefore not foreclosed from challenging the district court’s limitation on the restitution order even though it flows from the same issue as the district court’s evidentiary ruling. We therefore have jurisdiction to review the district court’s restitution order, and we review that order for an abuse of discretion. Brock-Davis, 504 F.3d at 996.

B. Restitution Order

The district court relied on United States v. Hughey, 495 U.S. 411, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990), in concluding that it could not consider fraud beyond the BBBS event for the purposes of restitution. In Hughey, the Supreme Court held that a restitution award under the 1982 Victim and Witness Protection Act (“VWPA”) was limited to “the loss caused by the specific conduct that is the basis of the offense of conviction.” 495 U.S. at 413, 110 S.Ct. 1979; 18 U.S.C. § 3579 (1982), amended by, 18 U.S.C. § 3663 (1990)).

In response, Congress amended the VWPA in 1990 to partly overrule Hughey. See 18 U.S.C. § 3663; see also United States v. Lawrence, 189 F.3d 838, 846 (9th Cir. 1999) (“Congress amended the VWPA’s definition of victim to partially overrule Hughey.”). The current iteration of the VWPA authorizes restitution for “any victim” of certain enumerated offenses. 18 U.S.C. § 3663(a)(1)(A). The act defines a “victim” as “any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern.” Id. § 3663(a)(2).

Following the 1990 amendments, we have recognized that the VWPA allows district courts to order restitution for crimes involving a scheme to defraud to “include acts of related conduct for which the defendant was not convicted.” Lawrence, 189 F.3d at 846; see also United States v. Rutgard, 116 F.3d 1270, 1294 (9th Cir. 1997) (“After the amendment [to the VWPA], restitution may be ordered for losses to persons harmed in the course of the defendant’s scheme even beyond the counts of conviction.” (emphasis added)). We have since applied the same approach to the MVRA. See Brock-Davis, 504 F.3d at 996 (“Because of similarities between the MVRA and the [VWPA], we may look to cases decided under the VWPA for guidance in interpreting the MVRA”) (internal citations omitted)); United States v. Grice, 319 F.3d 1174, 1177-78 (9th Cir. 2003) (“The MVRA’s definition of victim is identical [to the VWPA’s], and we interpret it as we have the definition under the VWPA.” (internal citations omitted)). Wire fraud involves a scheme to defraud. See 18 U.S.C. § 1343. Accordingly, under the MVRA, “restitution may be ordered for all persons directly harmed by the entire scheme” and “is thus not confined to harm caused by the particular offenses for which [the defendant] was convicted.” United States v. Booth, 309 F.3d 566, 576 (9th Cir. 2002).

Here, the district court, believing it was bound by Hughey, only considered loss related to Johnson’s fraudulent conduct while organizing the BBBS event. Specifically, prior to the start of witness testimony at the sentencing hearing, the district court concluded that it could not award restitution beyond the count of conviction “under the law, the law of this case, and the law under the United States Supreme Court decision of [United States v. Hughey].” This constituted an abuse of discretion. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) (“A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law....”). Under 18 U.S.C. § 3663A and Ninth Circuit precedent, the district court could properly order restitution for all victims harmed by Johnson’s scheme, including those harmed by conduct beyond the count of conviction. Accordingly, we vacate the district court’s restitution order and remand for the court to make factual findings to determine whether Johnson’s activities beyond the BBBS event are sufficiently related to be included for restitution purposes in Johnson’s overall scheme to defraud.

The restitution order is VACATED, and the issue is REMANDED to the district court.

      . Johnson also filed a cross-appeal of his conviction, United States v. Johnson, No. 15-30356, arguing insufficiency of the evidence. We dispose of his appeal in a separate memorandum disposition.

      . When the district court invoked Rule 404(b) to exclude evidence of wire fraud not specifically charged in the indictment, it did not have the benefit of our opinion in United States v. Loftis, 843 F.3d 1173 (9th Cir. 2016). There, we held that evidence of uncharged transactions to prove a scheme to defraud was not inadmissable as improper propensity evidence under Rule 404(b). Because the government did not pursue an appeal under 18 U.S.C. § 3731, however, the issue is not before us.

      . The wire fraud statute in part states:
      Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purposes of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both.
      18 U.S.C. § 1343.

      . It appears that the relevant Ninth Circuit precedent recognizing abrogation of this holding of Hughey was not brought to the district court’s attention.

      .The government contends that Johnson’s scheme to defraud should be defined broadly to include his misrepresentations as a Grammy-nominated musician with a charitable purpose. We do not decide this issue, but note that much of Johnson's conduct may be sufficiently related to his scheme to be included in a restitution order. Our cases have embraced a broad definition of scheme to defraud. See, e.g., United States v. Morse, 785 F.2d 771, 774 (9th Cir. 1986) (recognizing that, in the mail fraud context, the Ninth Circuit “takes a broad view of a single scheme”); see also United States v. Shipsey, 363 F.3d 962, 971 n.10 (9th Cir. 2004) (“It is well settled that cases construing the mail fraud and wire fraud statutes are applicable to either.”).


author: PER CURIAM:

text:
    Kevin Lamarr ANDRES, Plaintiff-Appellant, v. MARSHALL, Correctional Officer at RJ Donovan; R. Olson, CCII Appeals Coordinator; J. Ramirez, CCII Appeals Coordinator; Briggs, Chief of Appeals, Defendants-Appellees.
    No. 15-56057
    United States Court of Appeals, Ninth Circuit.
    Submitted December 14, 2016

    Filed April 21, 2017
    Kevin Lamarr Andres, Imperial, California, pro se Plaintiff-Appellant.
    Sylvie P. Snyder and Neah Huynh, Deputy Attorneys General; Jonathan L. Wolff, Senior Assistant Attorney General; Office of the Attorney General, San Diego, California; for Defendants-Appellees.
    Before: J. CLIFFORD WALLACE, EDWARD LEAVY, and RAYMOND C. FISHER, Circuit Judges.

       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

   OPINION

PER CURIAM:

California state prisoner Kevin Lamarr Andres appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging excessive force. We have jurisdiction under 28 U.S.C. § 1291. We review de novo legal rulings on exhaustion. Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014). We vacate and remand.

This action arises from Andres’ allegations that defendant Marshall used excessive force against him on January 23, 2013, while Andres was incarcerated at the Donovan Correctional Facility (“DCF”). Two days after the incident, Andres filed a 602 grievance regarding the alleged excessive force, but never received a response from DCF staff.

On April 4, 2013, Andres filed a petition for writ of habeas corpus in state court regarding his attempt to exhaust his excessive force claim. On July 24, 2013, Andres filed his original complaint in the instant action, alleging, in part, an excessive force claim and arguing that his administrative remedies were effectively unavailable because DCF failed to process his 602 grievance. On August 22, 2014, the state habeas court held an evidentiary hearing and granted Andres’ petition, finding that Andres had timely filed a grievance and ordering DCF to accept and process Andres’ 602 appeal.

Following the grant of Andres’ habeas petition, the parties requested that the district court fake judicial notice of the state habeas proceedings. In December 2014, the magistrate judge recommended that the district court dismiss the excessive force claim for failure to exhaust because exhaustion was not complete at the time Andres filed this action. In March 2015, the district court adopted the magistrate judge’s recommendation and dismissed the claim under McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002). The district court never formally ruled on the judicial notice request, but the record makes clear that the court considered the state court documents. We therefore treat those documents as part of the record on appeal. In June 2015, the district court entered judgment.

The Prison Litigation Reform Act (“PLRA”) states that “[n]o action shall be brought with respect to prison conditions under section 1983 of this' title, or any other Federal law, by a prisoner ... until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). In McKinney, we addressed the question of whether a district court must dismiss an action involving prison conditions when the plaintiff had not exhausted his administrative remedies prior to filing suit but was in the process of doing so when a motion to dismiss was filed. See id. at 1199. We concluded that exhausting available remedies during the course of litigation did not comply with § 1997e(a)’s requirements and held that a plaintiff must exhaust his administrative remedies prior to filing suit. See id.

We have also recognized that the PLRA does not require exhaustion when circumstances render administrative remedies “effectively unavailable.” Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010). In Ross v. Blake, the Supreme Court agreed, holding that § 1997e(a) requires an inmate to exhaust only those grievance procedures “that are capable of use to obtain some relief for the action complained of.” — U.S. -, 136 S.Ct. 1850, 1859, 195 L.Ed.2d 117 (2016) (citation and internal quotation marks omitted). By way of a non-exhaustive list, the Court recognized three circumstances in which an administrative remedy was not capable of use to obtain relief despite being officially available to the inmate: (1) when the administrative procedure “operates as a simple dead end” because officers are “unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) when the administrative scheme is “so opaque that it becomes, practically speaking, incapable of use” because “no ordinary prisoner can discern or navigate it”; and (3) when prison administrators “thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1859-60.

Andres argues that his administrative remedies for his excessive force claim were rendered effectively unavailable by defendants’ actions. We agree. The state habeas court held an evidentiary hearing and found that defendants improperly failed to process Andres’ timely filed grievance. Under the circumstances present here, Andres exhausted his available administrative remedies prior to filing suit, thereby satisfying Ross and McKinney. When prison officials fail to respond to a prisoner’s grievance within a reasonable time, the prisoner is deemed to have exhausted available administrative remedies within the meaning of the PLRA. We reverse the district court’s dismissal of Andres’ excessive force claim for failure to exhaust, vacate the judgment and remand for further proceedings.

Appellees shall bear the costs on appeal.

VACATED and REMANDED.

      . We address Andres’ remaining claims in a concurrently filed memorandum disposition.