Circle Click Media LLC v. Regus Management Group LLC et al
Filing
59
ORDER by Judge Samuel Conti denying without prejudice #29 motion to dismiss for lack of personal jurisdiction; granting in part and denying in part #31 motion to dismiss for failure to state a claim. (sclc1, COURT STAFF) (Filed on 1/3/2013)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California
United States District Court
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CIRCLE CLICK MEDIA LLC, METRO
TALENT, LLC, CTNY INSURANCE GROUP
LLC, on behalf of themselves and
all others similarly situated,
)
)
)
)
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Plaintiffs,
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)
v.
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REGUS MANAGEMENT GROUP LLC, REGUS )
BUSINESS CENTRE LLC, REGUS PLC, HQ )
GLOBAL WORKPLACES LLC, and DOES 1 )
through 50,
)
)
Defendants.
)
)
Case No. 12-04000 SC
ORDER RE: (1) REGUS PLC'S
MOTION TO DISMISS FOR LACK
OF PERSONAL JURISDICTION
AND (2) DEFENDANTS' MOTION
TO DISMISS FOR FAILURE TO
STATE A CLAIM
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I.
INTRODUCTION
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Plaintiffs Circle Click Media LLC ("Circle Click"), Metro
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Talent, LLC ("Metro Talent"), and CTNY Insurance Group LLC ("CTNY")
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(collectively, "Plaintiffs") bring this putative class action
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against Regus Management Group LLC ("RMG"), Regus Business Centre
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LLC ("RBC"), Regus plc, and HQ Global Workplaces LLC ("HQ Global")
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(collectively "Defendants").
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("FAC")).
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dismiss for lack of personal jurisdiction pursuant to Federal Rule
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of Civil Procedure 12(b)(1); and (2) Defendants' motion to dismiss
27
for failure to state a claim pursuant to Federal Rule of Civil
28
Procedure 12(b)(6).
ECF No. 24 (First Amended Complaint
Now before the Court is: (1) Regus plc's motion to
ECF Nos. 29 ("12(b)(1) MTD"); 31 ("12(b)(6)
The motions are fully briefed1 and appropriate for
1
MTD").
2
resolution without oral argument.
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Regus plc's 12(b)(1) motion is DENIED WITHOUT PREJUDICE pending
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jurisdictional discovery by Plaintiffs.
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12(b)(6) motion is GRANTED in part and DENIED in part.
For the reasons set forth below,
Further, Defendants'
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II.
The following facts are taken from Plaintiffs' FAC.
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BACKGROUND
Defendants are in the business of leasing commercial office space
United States District Court
For the Northern District of California
10
throughout California and New York.
FAC ¶ 1.
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is a foreign public limited company incorporated and registered in
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Jersey, Channel Islands, and is the parent company of Defendants
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RMG, RBC, and HQ Global.
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four defendants are alter egos of each other and generally do not
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distinguish between them in the FAC.
Id. ¶¶ 1, 14.
Defendant Regus plc
Plaintiffs allege that all
See id. ¶¶ 1, 21
In 2011, Plaintiffs entered into identical office agreements
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with Defendants (collectively, the "Office Agreement(s)") for
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commercial office space in California and New York.
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65.
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over the monthly payments indicated by their agreements.
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For example, Plaintiffs allege that Defendants routinely assessed
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Circle Click for charges relating to kitchen amenities, various
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telecommunication services, "business continuity service," taxes,
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and penalties -- fees which were not disclosed in the Office
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Agreement or the fine print and which bore no reasonable
Id. ¶¶ 43, 52,
Plaintiffs allege they were assessed charges by Defendants
Id. ¶ 71.
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ECF Nos. 39 ("Opp'n to 12(b)(6) MTD"); 40 ("Opp'n to 12(b)(1)
MTD"), 44 ("Reply ISO 12(b)(1) MTD"), 45 ("Reply ISO 12(b)(6)
MTD"). The Court reminds Plaintiffs that Civil Local Rule 7-4
requires parties to include a table of contents and a table of
authorities in all briefs exceeding ten pages.
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relationship to the services purportedly rendered by Defendants.
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Id. ¶ 48.
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Plaintiffs allege that, in light of Defendants' billing
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practices, its advertising is false and misleading.
See id. ¶ 73.
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Plaintiffs specifically point to advertisements posted to
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Defendants' website from 2003 through 2012.
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represented that customers "could save up to 78 % [sic] compared to
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traditional office costs," that Defendants' one-page contract
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"takes just 10 minutes to complete," and that Defendants' services
These advertisements
United States District Court
For the Northern District of California
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were "[s]imple, easy[,] and flexible."
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also point to a broadcast commercial by Defendants, wherein an
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actress states:
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Id. ¶¶ 23-31.
Plaintiffs
I don't have a lease so I don't have to budget for stuff
like phones, IT guys, and artwork for the lobby.
Instead, I pay one low monthly rate that gives me a
beautiful lobby that impresses my clients, a friendly
receptionist, a fully furnished office, a place to meet,
and a place to brainstorm with my fellow new way workers.
We wonder why more people don't realize that the new way
to work is the best way to work.
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Id. ¶ 31.
Plaintiffs filed the instant action in state court in May 2012
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and Defendants subsequently removed.
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which was filed after removal, Plaintiffs seek to represent a class
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of all persons who paid for Defendants' office space in California
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and New York and were assessed charges by Defendants over the
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monthly payments indicated in the Office Agreement or any similar
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agreement.
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the California class, which is represented by Circle Click and
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Metro Talent: (1) violation of California Business and Professions
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Code section 17200 (the California Unfair Competition Law ("UCL"));
FAC ¶ 71.
ECF No. 1.
In their FAC,
Plaintiffs assert six counts on behalf of
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(2) violation of California Business and Professions Code section
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17500 (the California False Advertising Law ("FAL"); (3)
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"concealment/suppression"; (4) & (5) negligent and intentional
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misrepresentation; and (6) unjust enrichment.
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assert the following claims on behalf of the New York class, which
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is represented by CTNY: (7) & (8) violation of New York State
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General Business Law ("NYSGBL") sections 349 and 350; and (9)
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unjust enrichment.
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obtained revenues, injunctive relief, and special and general
United States District Court
For the Northern District of California
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Plaintiffs also
Plaintiffs seek restitution of wrongfully
damages, among other things.
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III. DISCUSSION
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A.
Regus plc's 12(b)(1) Motion
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Regus plc argues that it should be dismissed from this suit
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because it is a foreign entity that operates outside of California.
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12(b)(1) MTD at 4.
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specific jurisdiction is proper due to Regus plc's false
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advertising in California and that the other Defendants' contacts
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with California can be imputed to Regus plc under an agency and
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alter ego analysis.
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also argue that, if the Court finds that Plaintiffs have failed to
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make a sufficient showing on these claims, it should grant
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Plaintiffs an opportunity to take jurisdictional discovery.
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16.
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i.
Plaintiffs respond that the exercise of
Opp'n to 12(b)(1) MTD at 9-15.
Plaintiffs
Id. at
Legal Standard
Plaintiffs bear the burden of showing that the Court has
27
personal jurisdiction over Regus plc.
28
Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006).
4
See Pebble Beach Co. v.
"[T]his demonstration
1
requires that the plaintiff make only a prima facie showing of
2
jurisdictional facts to withstand the motion to dismiss."
3
(quotations omitted).
4
favor of the plaintiff . . . ."
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plaintiff cannot simply rest on the bare allegations of its
6
complaint, but uncontroverted allegations in the complaint must be
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taken as true."
8
1218, 1223 (9th Cir. 2011) (quotations omitted).
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California's long-arm statute is coextensive with federal due
Id.
"[T]he court resolves all disputed facts in
Id. (quotations omitted).
"The
Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d
Since
United States District Court
For the Northern District of California
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process requirements, Cal. Civ. Proc. Code § 410.10, the personal
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jurisdiction analysis under state and federal law are the same.
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ii.
Specific Jurisdiction
The Ninth Circuit has established a three-prong analysis for
assessing claims of specific jurisdiction:
(1) The non-resident defendant must purposefully
direct his activities or consummate some transaction
with the forum or resident thereof; or perform some
act by which he purposefully avails himself of the
privilege of conducting activities in the forum,
thereby invoking the benefits and protections of its
laws;
(2) the claim must be one which arises out of or
relates to the defendant's forum-related activities;
and
(3) the exercise of jurisdiction must comport with
fair play and substantial justice, i.e. it must be
reasonable.
23
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th
24
Cir. 2004).
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two prongs and, if it does, the burden then shifts to the defendant
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to show why the exercise of personal jurisdiction would be
27
unreasonable.
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The plaintiff bears the burden of satisfying the first
Id.
As to the first prong, the parties agree that the Court should
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apply the purposeful direction analysis enunciated by the Supreme
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Court in Calder v. Jones, 465 U.S. 783 (1984).
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Opp'n to 12(b)(1) MTD at 10.
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must have (1) committed an intentional act, which was (2) expressly
5
aimed at the forum state, and (3) caused harm, the brunt of which
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is suffered and which the defendant knows is likely to be suffered
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in the forum state."
8
Calder, 465 U.S. at 783).
12(b)(1) MTD at 7,
"To satisfy this test the defendant
Pebble Beach, 453 F.3d at 1156 (citing
Plaintiffs argue that the "expressly aimed" condition is met
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United States District Court
For the Northern District of California
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here because of Defendants' website, regus.com.
Opp'n to 12(b)(1)
11
MTD at 10.
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jurisdiction where "a website advertiser [does] nothing other than
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register a domain name and post an essentially passive website."
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Pebble Beach, 453 F.3d at 1157 (quotations omitted).
15
hand, personal jurisdiction may be appropriate where the defendant
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operates an interactive website, depending on the "level of
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interactivity and commercial nature of the exchange of information
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that occurs on the Web site."
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130 F.3d 414, 418 (9th Cir. 1997).
The Ninth Circuit has held that there is no personal
On the other
Cybersell, Inc. v. Cybersell, Inc.,
Plaintiffs contend that regus.com is highly interactive and
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designed to target California consumers.
Opp'n to 12(b)(1) MTD at
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10.
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directories for thirty-six California cities and counties.
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10-11.
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website interface with RMG, not Regus plc.
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Defendants rely on the declaration of Tim Regan, the company
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secretary for Regus plc., who declares: "Communications and
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business that are completed on the www.regus.com website by
They point out that the website includes sub-domain
Id. at
Defendants counter that the interactive features on the
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12(b)(1) MTD at 8.
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California customers occur with [RMG].
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this website and the contact information on this website direct the
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California customer to [RMG]."
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Since the Regan Declaration controverts the FAC, the Court must
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look past its bare allegations of purposeful direction.2
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regus.com website cannot support a finding of purposeful direction
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or the exercise of personal jurisdiction.
ECF No. 30 ("Regan Decl.") ¶ 18.
Thus, the
Neither can the "unsolicited email" produced by Plaintiffs.
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The interactive features on
ECF No. 41 ("Ward Decl.") Ex. B.
The email is a general
United States District Court
For the Northern District of California
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advertisement from "Regus@regus-woldwide.com" which was sent to
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"award@circleclick.com" on May 25, 2012.
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of the email refers to Regus plc and its registered office in the
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Channel Islands.
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reference to California, does not demonstrate that Regus plc
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expressly aimed its activities at California.
Id.
Id.
The signature line
This general advertisement, which makes no
Further, Plaintiffs'
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Plaintiffs object to the Regan Declaration on a number of
grounds. First, they argue that Mr. Regan lacks the requisite
personal knowledge and that his declaration is based on hearsay.
Opp'n to 12(b)(1) MTD at 5. Plaintiffs point to the first
paragraph of the declaration, in which Mr. Regan states: "The
following facts are based upon my personal knowledge or are based
upon information received from persons upon whom I rely in the
normal course of business and/or the business records of Regus
plc." Id. (quoting Regan Decl. ¶ 1). Contrary to Plaintiffs'
contention, Mr. Regan does not lack the requisite personal
knowledge merely because he may have reached an understanding about
some of Regus plc's operations based on his review of business
records or information gathered from staff. See Great Am. Assur.
Co. v. Liberty Surplus Ins. Corp., 669 F. Supp. 2d 1084, 1089 (N.D.
Cal. 2009) ("Personal knowledge includes opinions and inferences
grounded in observations and experience."). Further, Mr. Regan's
declaration is not hearsay because it is based on Mr. Regan's own
understanding and observations and contains no out-of-court
statements. Plaintiffs also object to Mr. Regan's statements
concerning regus.com on the ground that they are vague and
ambiguous and constitute inadmissible legal conclusions because
they interpret the legal significance of online interaction through
the Regus website. Opp'n to 12(b)(1) MTD at 8. This argument is
unavailing. The paragraphs targeted by Plaintiffs contain
straightforward statements of fact, not legal conclusions.
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injuries could not be related to this email since it was sent after
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Plaintiffs filed the instant action.
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Accordingly, the Court finds that Plaintiffs have failed to
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meet their burden of showing that the exercise of specific
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jurisdiction would be appropriate.
iii. Agency and Alter Ego Analysis
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Generally, the existence of a parent-subsidiary relationship
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"is not sufficient to establish personal jurisdiction over the
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parent on the basis of the subsidiaries' minimum contacts with the
United States District Court
For the Northern District of California
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forum."
Doe v. Unocal Corp., 248 F.3d 915, 925 (9th Cir. 2001).
11
However, "if the parent and subsidiary are not really separate
12
entities [i.e., alter egos], or one acts as an agent of the other,
13
the local subsidiary's contacts with the forum may be imputed to
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the foreign parent corporation."
Id. at 926 (quotations omitted).
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To satisfy the alter ego exception to the general rule, "the
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plaintiff must make out a prima facie case (1) that there is such
17
unity of interest and ownership that the separate personalities [of
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the two entities] no longer exist and (2) that failure to disregard
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[their separate identities] would result in fraud or injustice."
20
Id. (quotations omitted).
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subsidiary functions as the parent corporation's representative in
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that it performs services that are sufficiently important to the
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foreign corporation that if it did not have a representative to
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perform them, the corporation's own officials would undertake to
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perform substantially similar services."
26
omitted).
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The agency exception applies where "the
Id. at 928 (quotations
The Court finds that Plaintiffs have proffered insufficient
facts to support the application of either exception here.
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Plaintiffs argue that the exceptions apply because Regus plc, RMG,
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and RBC share a website, trademark, and logo.
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12(b)(1) MTD at 14-15.
4
suggest that those facts are sufficient to attribute RMG and RBC
5
contacts to Regus plc.
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plc uses the other Defendants as marketing conduits; however, it
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offers no other facts concerning the connection between these
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different entities.
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exerts over the other Defendants or whether they share revenues,
See Opp'n to
However, they cite no authority which would
Plaintiffs also baldly assert that Regus
It is unclear how much control Regus plc
United States District Court
For the Northern District of California
10
customers, or staff.
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with any evidence concerning the functional relationship between
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Defendants.
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In short, Plaintiffs have yet to come forward
Accordingly, the Court declines to impute RMG and RBC's
contacts with California to Regus plc at this time.
iv.
Jurisdictional Discovery
The district court has discretion to allow a plaintiff to
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conduct jurisdictional discovery.
Wells Fargo & Co. v. Wells Fargo
18
Exp. Co., 556 F.2d 406, 430 n.24 (9th Cir. 1977).
19
such discovery should ordinarily be granted "where pertinent facts
20
bearing on the question of jurisdiction are controverted . . . or
21
where a more satisfactory showing of the facts is necessary."
22
(quotations omitted).
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discovery "[w]here a plaintiff's claim of personal jurisdiction
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appears to be both attenuated and based on bare allegations in the
25
face of specific denials made by the defendants . . . ."
26
Beach, 453 F.3d at 1160 (quotations omitted).
The Court finds that
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jurisdictional discovery is appropriate here.
Defendants argue
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that Plaintiffs have failed to substantiate their agency and alter
Requests for
Id.
However, a district court need not permit
9
Pebble
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ego theories, but they have not denied Plaintiffs' allegations.
2
See Reply ISO 12(b)(1) MTD.
3
additional evidence pertinent to the assessment of personal
4
jurisdiction.
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Accordingly, discovery may uncover
For the foregoing reasons, the Court DENIES Regus Plc's motion
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to dismiss for lack of personal jurisdiction WITHOUT PREJUDICE and
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GRANTS Plaintiffs leave to conduct jurisdictional discovery to
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collect evidence relevant to their alter ego and agency theories of
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personal jurisdiction.
After discovery has been completed, Regus
United States District Court
For the Northern District of California
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plc may again move to dismiss for lack of personal jurisdiction
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pursuant to Federal Rule of Civil Procedure 12(b)(1).
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B.
i.
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Defendants' Rule 12(b)(6) Motion
Legal Standard
A motion to dismiss under Federal Rule of Civil Procedure
15
12(b)(6) "tests the legal sufficiency of a claim."
Navarro v.
16
Block, 250 F.3d 729, 732 (9th Cir. 2001).
17
on the lack of a cognizable legal theory or the absence of
18
sufficient facts alleged under a cognizable legal theory."
19
Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.
20
1988).
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should assume their veracity and then determine whether they
22
plausibly give rise to an entitlement to relief."
23
Iqbal, 556 U.S. 662, 664 (2009).
24
must accept as true all of the allegations contained in a complaint
25
is inapplicable to legal conclusions.
26
elements of a cause of action, supported by mere conclusory
27
statements, do not suffice."
28
v. Twombly, 550 U.S. 544, 555 (2007)).
"Dismissal can be based
"When there are well-pleaded factual allegations, a court
Ashcroft v.
However, "the tenet that a court
Threadbare recitals of the
Id. at 663. (citing Bell Atl. Corp.
10
The allegations made in a
1
complaint must be both "sufficiently detailed to give fair notice
2
to the opposing party of the nature of the claim so that the party
3
may effectively defend against it" and "sufficiently plausible"
4
such that "it is not unfair to require the opposing party to be
5
subjected to the expense of discovery."
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1191, 1204 (9th Cir. 2011).
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ii.
Starr v. Baca, 633 F.3d
Group Pleading
Defendants first argue that RBC, Regus plc, and HQ Global
United States District Court
should be dismissed from the case since Plaintiffs fail to allege
10
For the Northern District of California
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any facts indicating that they had any involvement in the matters
11
that form the basis of Plaintiffs' claims.
12
Relying on Swartz v. KPMG LLP, 476 F.3d 756 (9th Cir. 2007),
13
Defendants contend that Plaintiffs have engaged in impermissible
14
group pleading.
15
the context of a fraud suit involving multiple defendants, a
16
plaintiff must, at a minimum, 'identif[y] the role of [each]
17
defendant[] in the alleged fraudulent scheme.'"
18
(quotations omitted) (alterations in the original).
19
argue that, although the FAC names four distinct defendants, it
20
makes no effort to articulate each defendant's role in the supposed
21
fraud, misrepresentations, or concealment.
22
Id.
12(b)(6) MTD at 7.
In Swartz, the Ninth Circuit held that "[i]n
The Court is not persuaded.
476 F.3d at 765
Defendants
12(b)(6) MTD at 7.
As an initial matter, the
23
prohibition against group pleading only applies in cases of fraud,
24
see Swartz 476 F.3d at 765, and, in this case, only a fraction of
25
Plaintiffs' claims sound in fraud.
26
Rule of Civil Procedure 8 also bars Plaintiffs' claims, since it
27
requires Plaintiffs to set forth which claims are alleged against
28
which defendants.
Defendants argue that Federal
Reply ISO 12(b)(6) MTD at 3.
11
However, Rule 8
1
pleading standards do not prevent a plaintiff from "pleading facts
2
alleged upon information and belief where the facts are peculiarly
3
within the possession and control of the defendant . . . ."
4
Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (quotations
5
omitted).
6
information and belief, that Defendants are alter egos of each
7
other.
8
relationships is in the sole possession of Defendants, Plaintiffs
9
are entitled to discovery on the matter.
Such is the case here.
FAC ¶ 21.
Arista
Plaintiffs have pled, upon
As information concerning Defendants' corporate
This same reasoning
United States District Court
For the Northern District of California
10
applies to Plaintiffs' fraud claims.
See Moore v. Kayport Package
11
Exp., Inc., 885 F.2d 531, 540 (9th Cir. 1989) ("Instances of
12
corporate fraud may also make it difficult to attribute particular
13
fraudulent conduct to each defendant as an individual.").
Defendants argue that Plaintiffs have failed to plead
14
15
sufficient facts to support their alter ego allegations.
16
4.
17
make[] no distinction between entities when using the Regus logo in
18
connection with marketing," that "[Defendants] describe[] [their]
19
own operations to actual tenants as if such operations are
20
conducted by a single entity," and that "[Defendants] represent[]
21
to [their] investors [that they are] a unified entity," among other
22
things.
23
altogether.
24
allegation that Regus Management Group LLC, Regus Business Centre
25
LLC, Regus plc, and HQ Global are alter egos of one another.
26
iii. Count I: UCL Claims for Unlawful, Unfair, and
27
28
The Court disagrees.
FAC ¶ 21.
Reply at
Plaintiffs allege that "[Defendants]
Defendants appear to ignore these allegations
In sum, the Court finds plausible Plaintiffs'
Fraudulent Business Practices
Plaintiffs' first claim for relief is brought under the
12
1
California UCL, which prohibits business practices that are (1)
2
unlawful, (2) unfair, or (3) fraudulent.
3
17200.
4
UCL.
5
predicate violations of sections 1950.8, 1671(b), 1572, 1709, and
6
1710 of the California Civil Code.
7
unfairness prong of the UCL, Plaintiffs target Defendants' alleged
8
practice of "assessing charges above the monthly payment indicated
9
in the Office Agreement."
Cal. Bus. Prof. Code §
Plaintiffs allege violations of all three prongs of the
With respect to the unlawful prong, Plaintiffs allege
FAC ¶¶ 85-87.
Id. ¶ 84.
As to the
Finally, with respect to
United States District Court
For the Northern District of California
10
fraud, Plaintiffs allege that "Defendants' . . . failure to clearly
11
and conspicuously disclose [their] scheme, practice, and intent to
12
assess additional undisclosed fees deceives consumers, customers,
13
and/or the public."3
14
Plaintiffs' claims under all three prongs of the UCL.
Id. ¶ 89.
Unlawful Practices.
15
Defendants move to dismiss
Defendants argue that Plaintiffs cannot
16
state a claim for unlawful practices under the UCL because they
17
have not alleged facts establishing predicate violations of the
18
borrowed statutes, California Civil Code sections 1950.8, 1671(b),
19
1572, 1709, and 1710.
12(b)(6) MTD at 17-19.
Civil Code section 1950.8 "applies only to commercial leases
20
21
and nonresidential tenancies of real property" and makes it
22
unlawful to require payment "as a condition of initiating,
23
continuing, or renewing a lease or rental agreement, unless the
24
amount of payment is stated in the written lease or rental
25
agreement."
Cal. Civ. Code § 1950.8(a)-(b).
Plaintiffs allege
26
3
27
28
Plaintiffs also allege that Defendants are liable for fraud under
the UCL because they engaged in false advertising. FAC ¶ 88. This
UCL claim is identical to Plaintiffs' FAL claim. Compare id. ¶ 88
with id. ¶ 92. Accordingly, it is addressed in Section III.B.iv
infra.
13
1
that Defendants violated section 1950.8 by "requir[ing] the payment
2
of monies as a condition of continuing the lease without providing
3
for the amounts of said monies in the Office Agreement or Fine
4
Print[.]"
5
inapplicable here because the Office Agreement executed by
6
Plaintiffs is not a lease.
7
Agreement provides:
8
10
United States District Court
Defendants argue that section 1950.8 is
12(b)(6) MTD at 17-18.
The Office
This agreement is the commercial equivalent of an
agreement for accommodation(s) in a hotel. The whole of
the Center remains in Regus' possession and control. THE
CLIENT ACCEPTS THAT THIS AGREEMENT CREATES NO TENANCY
INTEREST, LEASEHOLD ESTATE, OR OTHER REAL PROPERTY
INTEREST IN THE CLENT'S FAVOUR WITH RESPECT TO THE
ACCOMODATIONS.
9
For the Northern District of California
FAC ¶ 85.
11
12
ECF No. 34 Ex. B ("Office Agreement") § 1.1.
Plaintiffs respond
13
that the Office Agreement shares all the characteristics of a lease
14
since it "grants Plaintiffs the right to enter and possess the
15
designated premises for a fixed consideration (one monthly fee) and
16
period of time (duration of months)."
17
The Court may not accept Plaintiffs' argument without ignoring the
18
express terms of the Office Agreement.
19
contention, the Office Agreement did not grant them the right to
20
possess the premises.
21
"remains in Regus' possession and control[.]"
22
1.1.
23
"CREATES NO TENANCY INTERST."
24
claim is DISMISSED WITH PREJUDICE as it pertains to California
25
Civil Code section 1950.8.
Opp'n to 12(b)(6) MTD at 21.
Contrary to Plaintiffs'
In fact, it expressly states the property
Office Agreement §
Moreover, the Office Agreement expressly provides that it
Id.
Accordingly, Plaintiffs' UCL
26
Section 1671(b) states: "[A] provision in a contract
27
liquidating the damages for the breach of the contract is valid
28
unless the party seeking to invalidate the provision establishes
14
1
that the provision was unreasonable under the circumstances
2
existing at the time the contract was made."
3
1671(b).
4
section 1671(b) by "charging penalties based on a percentage of the
5
entire alleged unpaid principal balance, plus a fixed fee" since
6
such penalties "do[] not bear a reasonable nexus to the amount of
7
damages suffered by Regus."
8
Plaintiffs lack standing to bring this claim since they have not
9
alleged that they paid such a penalty or the amount of the penalty.
Cal. Civ. Code §
Plaintiffs allege that Defendants violated
FAC ¶ 86.
Defendants argue that
United States District Court
For the Northern District of California
10
12(b)(6) MTD at 18.
Defendants misconstrue the FAC.
11
pleading could be clearer, Plaintiffs appear to be referring to the
12
penalty allegedly assessed against Circle Click which amounted to
13
"$25 plus 5% of the amount due on the overdue balances under $1,000
14
or $50 plus 5% of the amount due on the overdue balances of $1000
15
or greater."
16
paid the penalty.
17
Plaintiff Circle Click to suffer harm in the amount of the unfair
18
and unreasonable fees paid by Circle Click to Regus.").
19
Accordingly, Plaintiffs' UCL unlawfulness claim remains undisturbed
20
as to the alleged predicate violation of section 1671(b).
FAC ¶ 48(l).
While the
Moreover, Plaintiffs allege that they
Id. ¶ 51 ("Regus'[s] charges have caused
21
Plaintiffs claim that Defendants violated Civil Code sections
22
1572, 1709, and 1710 by routinely assessing charges not adequately
23
disclosed or indicated in the Office Agreement.
24
Sections 1572 and 1710 define the terms "actual fraud" and
25
"deceit," respectively, and section 1709 provides: "One who
26
willfully deceives another with intent to induce him to alter his
27
position to his injury or risk, is liable for any damage which he
28
thereby suffers."
Id. ¶ 87.
These claims fail for the same reasons as
15
1
Plaintiffs' claims for "concealment/suppression" and negligent and
2
intentional misrepresentation.
3
Accordingly, Plaintiffs UCL unlawfulness claim is DISMISSED with
4
leave to amend to the extent that it is predicated on violations of
5
Civil Code sections 1572, 1709, 1710.
Unfair Practices.
6
See Section III.B.v infra.
California courts have enunciated multiple
7
standards for evaluating a claim for unfair practices under the
8
UCL.
9
Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone
In this case, the parties point to the tests set forth in
United States District Court
For the Northern District of California
10
Co., 20 Cal. 4th 163 (1999) and Camacho v. Automobile Club of
11
Southern California, 142 Cal. App. 4th 1394, 1401 (2006).
12
the Cel-Tech standard, an unfair business practice is "conduct that
13
threatens an incipient violation of an antitrust law, or violates
14
the policy or spirit of one of those laws because its effects are
15
comparable to or the same as a violation of the law, or otherwise
16
significantly threatens or harms competition."
17
Under the Camacho standard, a plaintiff may establish unfairness by
18
showing that the consumer injury (1) is substantial; (2) not
19
outweighed by any countervailing benefits to consumers or
20
competition; and (3) is one that consumers themselves could not
21
reasonably have avoided.
22
Under
20 Cal. 4th at 187.
142 Cal. App. 4th at 1403.
Plaintiffs have failed to meet either standard.
With respect
23
to the Cel-Tech standard, Plaintiffs have not attempted to identify
24
any law or public policy which might be offended by Defendants'
25
alleged conduct.
26
that Defendants' "systematic practice of non-disclosure" does not
27
serve any legitimate business purpose of utility.
28
12(b)(6) MTD at 23.
As to the Camacho standard, Plaintiffs assert
Opp'n to
However, they have not explained why their
16
1
alleged injury is substantial or why they could not have avoided
2
the injury themselves.
3
appears that the fees about which Plaintiffs complain were in fact
4
disclosed in the Office Agreement and other documentation provided
5
by Defendants.
6
7
8
9
As set forth in Section III.B.v infra, it
Accordingly, Plaintiffs' claim for unfair business practices
under the UCL is DISMISSED with leave to amend.
Fraudulent Practices.
Plaintiffs' claim for fraudulent
practices under the UCL fails for the same reasons as their claims
United States District Court
For the Northern District of California
10
for "concealment/suppression" and intentional and negligent
11
misrepresentation: the Office Agreement disclosed the fees that
12
Defendants allegedly concealed.
13
Plaintiffs point out, "[u]nlike a common law fraud claim, a UCL
14
fraud claim requires no proof that the plaintiff was actually
15
deceived.
16
likelihood of confounding an appreciable number of reasonably
17
prudent purchasers exercising ordinary care."
18
DaimlerChrysler Corp., 534 F.3d 1017, 1025-26 (9th Cir. 2008)
19
(quotations and internal citations omitted).
20
have failed to explain how Defendants' practices were likely to
21
deceive reasonably prudent purchasers when Defendants disclosed
22
that they would charge the additional fees which are the focus of
23
Plaintiffs' action.
24
fraudulent practices is DISMISSED with leave to amend.
25
26
27
28
See Section III.B.v, infra.
As
Instead, the plaintiff must produce evidence showing a
iv.
Clemens v.
However, Plaintiffs
Accordingly, Plaintiffs' UCL claim for
Counts I & II: UCL and FAL Claims for False
Advertising
Plaintiffs allege that Defendants engaged in false advertising
in violation of the UCL and FAL through "advertising displayed on
17
1
the Regus Website, www.craigslist.com, representations of
2
'furnished' offices, and representations of 'simple one page' lease
3
agreements, which fail to mention the amounts of additional charges
4
that will be assessed by Regus."
5
UCL prohibits "unfair, deceptive, untrue or misleading
6
advertising," Cal. Bus. & Prof. Code § 17200, and the FAL makes it
7
unlawful to induce the public to enter into any obligation through
8
the dissemination of "untrue or misleading" statements.
9
& Prof. Code § 17500.
United States District Court
For the Northern District of California
10
FAC ¶ 92; see also id. ¶ 88.
The
Cal. Bus.
Defendants move to dismiss Plaintiffs' false advertising
11
claims on at least two grounds: (1) Plaintiffs have pled
12
insufficient facts to establish that they have standing; and (2)
13
Plaintiffs' claims lack the required particularity.
14
at 9, 12.
12(b)(1) MTD
Both arguments have merit.
15
With respect to standing, a private person may only bring an
16
action under the UCL and FAL if he or she has "suffered injury in
17
fact and has lost money or property as a result of the unfair
18
competition."
19
Supreme Court has interpreted section 17204 to "impose[] an actual
20
reliance requirement on plaintiffs prosecuting a private
21
enforcement action under the UCL[] . . . ."
22
Cases, 46 Cal. 4th 298, 326 (2009).
23
Plaintiffs lack standing because they do not allege that they saw
24
or relied upon the allegedly false and misleading advertising.
25
12(b)(1) MTD at 9.
26
allegations are unnecessary to establish actual reliance.
27
12(b)(6) MTD at 8.
Cal. Bus. & Prof. Code § 17204.
The California
In re Tobacco II
Defendants contend that
Plaintiffs respond that, under Tobacco II, such
28
18
Opp'n to
Tobacco II involved false advertising claims against tobacco
1
2
companies.
3
contention that the plaintiffs lacked standing under the UCL
4
because they had not relied on the tobacco companies'
5
advertisements, the California Supreme Court stated:
6
8
9
10
United States District Court
Addressing the tobacco company's
[W]hile a plaintiff must allege that the defendant's
misrepresentations were an immediate cause of the
injury-causing conduct, the plaintiff is not required to
allege that those misrepresentations were the sole or
even the decisive cause of the injury-producing conduct.
Furthermore, where, as here, a plaintiff alleges
exposure to a long-term advertising campaign, the
plaintiff is not required to plead with an unrealistic
degree of specificity that the plaintiff relied on
particular advertisements or statements. Finally, an
allegation of reliance is not defeated merely because
there was alternative information available to the
consumer-plaintiff.
7
For the Northern District of California
46 Cal. 4th at 306.
11
12
13
Id. at 328.
14
that a plaintiff must show reliance to establish standing under the
15
UCL.
16
individualized reliance on specific representations where
17
Defendants have engaged in a long-term advertising campaign.
18
this case, Plaintiffs have failed to allege any reliance
19
whatsoever.
20
advertisements described in the FAC or received similar information
21
from any other advertising.
22
concerning reliance, the Court cannot conclude that Plaintiffs'
23
decision to use Defendants' services was influenced or reinforced
24
by Defendants' advertising.
25
allege sufficient facts to establish standing.
26
Thus, Tobacco II did not eliminate the requirement
It merely held that a Plaintiff need not demonstrate
In
It is unclear whether they saw any of the
In the absence of any allegations
Accordingly, Plaintiffs have failed to
Defendants also argue that the FAC fails to explain why the
27
targeted advertisements were misrepresentations.
28
at 14.
Again, Defendants are correct.
19
12(b)(6) at MTD
Among other things, the
1
targeted advertisements make the following claims: "[s]ave money";
2
"[f]lexibility for your business"; "get down to business
3
instantly"; "match our office rental options to your business
4
needs"; "our solutions are designed to fit within your budget";
5
"[s]imple, easy and flexible"; "fully-furnished"; "all-inclusive";
6
and "one monthly fee"; and "one low monthly rate."
7
None of these advertising claims represent that Defendants will
8
refrain from charging customers additional fees, so it is unclear
9
how they relate to Plaintiffs' action.
FAC ¶¶ 25-31.
The FAC does nothing to
United States District Court
For the Northern District of California
10
clarify the matter.
11
claims amount to non-actionable puffery since they are vague and
12
highly subjective.
13
1399 (E.D. Cal. 1994).
14
Further, many of Defendants' advertising
See Haskell v. Time, Inc., 857 F. Supp. 1392,
Plaintiffs argue that, taken together, Defendants'
15
advertisements deceived them into believing that "[Defendants']
16
'fully furnished' and 'all-inclusive offices' have 'one monthly
17
fee.'"
18
identified in the FAC that mentions "one monthly fee" was posted in
19
2004, about seven years before Plaintiffs executed their Office
20
Agreements.
21
changed since that time.
22
targeted in the FAC refer to a "single monthly invoice," which
23
could include multiple fees.
24
altogether clear from the 2004 advertisement that the additional
25
services targeted in the FAC would be included in one monthly fee.
26
The advertisement states: "With Regus executive suites you get a
27
complete, professional executive office environment included in one
28
monthly []fee.
Opp'n to 12(b)(6) MTD.
FAC ¶ 26.
However, the only advertisement
Defendants' business practices may have
In fact, the more recent advertisements
Id. ¶ 31.
Further, it is not
You'll also get professional receptionists, state-
20
1
of-the-art telecom and IT services, kitchen areas and cyber cafés."
2
Id. ¶ 31.
3
Accordingly, Plaintiffs' false advertising claims under the
4
UCL and FAL are DISMISSED with leave to amend.
5
complaint should do more than merely list advertisements that
6
Defendants have broadcast in the last decade.
7
how Plaintiffs relied on the advertisements and why the
8
advertisements are false and misleading.
9
United States District Court
For the Northern District of California
10
11
v.
Plaintiffs' amended
It should explain
Courts III-V: Concealment/Suppression and Negligent
and Intentional Misrepresentation
The gravamen of Plaintiffs' claims for
12
"concealment/suppression" (Count III), negligent misrepresentation
13
(Count IV), and intentional misrepresentation (Count V) is that
14
Defendants failed to disclose or failed to adequately disclose
15
various fees assessed against Plaintiffs.
16
Plaintiffs' concealment/suppression claim, Plaintiffs allege that
17
Defendants actively concealed the amounts of additional fees "by
18
not stating the amounts in the Office Agreement or Fine Print, by
19
using extremely small font, and by failing to provide adequate
20
disclosures that are clear and conspicuous."
21
in their misrepresentation claims, Plaintiffs allege that
22
Defendants falsely represented that Plaintiffs' total monthly
23
payments would be the amounts stated in the Office Agreement.
24
¶¶ 106, 107, 113.
With respect to
FAC ¶ 30.
Likewise,
Id.
25
Defendants argue that they disclosed that additional fees
26
would be charged, pointing out that the Office Agreement, which is
27
referenced in but not attached to the FAC, represents that the
28
stated monthly office fees "exclud[e] tax and exclud[e] services."
21
1
12(b)(1) MTD at 15.
2
in the "Terms and Conditions," which are incorporated by reference
3
into the Office Agreement.
4
seriously respond to this argument, except to suggest that
5
Defendants' disclosures were not conspicuous enough because they
6
were made in five-point font or in the fine print.
7
12(b)(6) MTD at 17.
8
suggesting what size font Defendants were required to use or that a
9
disclosure in an agreement must be conspicuous to be effective.
United States District Court
For the Northern District of California
10
Defendants also point to various disclosures
See id. at 4.
Plaintiffs do not
See Opp'n to
However, Plaintiffs cite no authority
Under California law, "[t]he adequacy of a disclaimer in the
11
context of an action for fraud is judged by reference to the
12
plaintiff's knowledge and experience[.]"
13
Ins. Co. of Am., 171 Cal. App. 4th 912, 921 (2009).
14
generally denied where the plaintiff's reliance on the defendant's
15
misrepresentation is "manifestly unreasonable" in light of the
16
plaintiff's intelligence and information.
17
negotiate a contract at arm's length, "it is not reasonable to fail
18
to read a contract before signing it."
19
N.A., 691 F.3d 1152, 1163 (9th Cir. 2012).
20
appears to be the case here.
21
Broberg v. Guardian Life
Id.
Recovery is
Where the parties
Davis v. HSBC Bank Nevada,
Based on the FAC, that
Accordingly, the Court GRANTS Defendants' motion to dismiss
22
with respect to Counts III, IV, and V, and GRANTS Plaintiffs leave
23
to amend those claims.
24
specifically allege what was not disclosed in the agreements they
25
signed with Defendants and/or what Defendants misrepresented to
26
them about their monthly fees and why it was reasonable for
27
Plaintiffs to rely on those misrepresentations despite the language
28
of the agreements.
Plaintiffs' amended complaint should
22
1
2
vi.
Counts VII & VIII: NYSGBL Sections 349 and 350
Defendants argue that CTNY lacks standing to bring causes of
3
action under NYSGBL sections 349 and 350 because Plaintiffs have
4
not alleged a consumer-oriented harm.
5
unlawful "deceptive acts or practices" and "false advertising" in
6
the conduct of "any business, trade or commerce."
7
Law §§ 349(a), 350.
8
general, but also provides that "any person" who has been injured
9
by actions prohibited by the law may bring an action "in his own
Sections 349 and 350 declare
N.Y. Gen. Bus.
Section 349 authorizes suits by the attorney
United States District Court
For the Northern District of California
10
name to enjoin such unlawful act" or "to recover his actual damages
11
or fifty dollars, whichever is greater."
12
Id. § 349(b), (h).
Section 349 "was intended to empower consumers; to even the
13
playing field in their disputes with better funded and superiorly
14
situated fraudulent businesses.
15
action to recover damages for breach of contract between parties to
16
an arm's length contract."
17
N.Y.S.2d 769, 774 (N.Y. Sup. Ct. 1995).
18
matter, a plaintiff bringing a claim under section 349 must charge
19
the defendant with conduct that is consumer-oriented.
20
Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 85
21
N.Y.2d 20, 25 (N.Y. 1995).
22
advertising which is consumer-oriented.
23
v. Yellow Book USA, Inc., 309 F. Supp. 2d 401, 405 (E.D.N.Y. 2004).
24
It was not intended to supplant an
Teller v. Bill Hayes, Ltd., 630
Thus, as a threshold
Oswego
Likewise, section 350 only pertains to
Verizon Directories Corp.
To establish that the defendant's conduct is consumer-
25
oriented, the plaintiff "must demonstrate that the acts or
26
practices have a broader impact on consumers at large.
27
contract disputes, unique to the parties, for example, would not
28
fall within the ambit of the statute."
23
Private
Oswego, 85 N.Y.2d at 25.
1
Further, to avoid "the potential for a tidal wave of litigation
2
against businesses that was not intended by the Legislature," New
3
York courts have adopted an objective definition of deceptive acts
4
and practices, which limits actionable conduct to that which is
5
"likely to mislead a reasonable consumer acting reasonably under
6
the circumstances."
7
Id. at 26.
A review of the case law in this area further illuminates the
8
standard for finding consumer-oriented conduct.
9
court found consumer-oriented conduct where a pension fund opened a
In Oswego, the
United States District Court
For the Northern District of California
10
savings account with a bank that was acting as the fund's
11
investment advisor on the ground that the bank "dealt with
12
plaintiffs' representative as any customer entering the bank to
13
open a savings account, furnishing the Funds with standard
14
documents presented customers upon the opening of accounts."
15
N.Y.2d at 26-27.
16
York v. Feldman, 210 F. Supp. 2d 294 (S.D.N.Y. 2002), where the
17
state of New York alleged that the defendant engaged in a scheme to
18
manipulate public stamp auctions.
19
parties injured by the alleged scheme "included, among others,
20
unsophisticated individual sellers, such as the elderly and one-
21
time participants."
22
no consumer-oriented conduct was found in Cruz v. NYNEX Information
23
Resources, 263 A.D.2d 285 (N.Y. Sup. Ct.), where a group of
24
businesses filed suit in connection with advertisements they had
25
placed in the Yellow Pages.
26
transactions at issue were "modest in value," "repeated regularly
27
with numerous parties," and "involve[d] parties with a large
28
disparity in economic power and sophistication," plaintiffs had
85
Consumer-oriented conduct was also found in New
The court reasoned that the
Feldman, 210 F. Supp. 2d at 301.
In contrast,
The court reasoned that although the
24
1
failed to show how the alleged misconduct might either directly or
2
potentially affect consumers since "advertisement space in the
3
Yellow Pages is, by definition, a commodity available to businesses
4
only . . . ."
5
Cruz, 263 A.D.2d at 291.
The Court finds that this case is more like Cruz than Oswego
6
or Feldman.
7
presented with a standardized contract, Plaintiffs have made no
8
showing that Defendants' alleged misconduct has the potential to
9
affect consumers at large.
While CTNY was treated like a consumer in that it was
All three Plaintiffs are businesses and
United States District Court
For the Northern District of California
10
their claims relate to Defendants' practices in marketing and
11
managing commercial office space, a commodity which is only
12
available to businesses.
13
practices are sufficiently consumer-oriented because they affect
14
all consumers of office space in New York, be they entrepreneurs or
15
individuals seeking to lease a single office or start a company, or
16
a small business leasing multiple office spaces."
17
12(b)(6) MTD at 14.
18
Plaintiffs would only be interested in commercial office space for
19
business purposes.
20
that their suit will benefit New York consumers.
21
22
Plaintiffs argue that "Defendants'
Opp'n to
However, all of the parties listed by
As such, Plaintiffs cannot credibly contend
Accordingly, Plaintiffs' claims under NYSGBL Sections 349 and
350 are DISMISSED WITH PREJUDICE.
23
vii. Counts VI & IX: Unjust Enrichment
24
Plaintiffs bring two claims for unjust enrichment, one under
25
California law (Count VI) and the other under New York law (Count
26
IX).
27
Plaintiffs allege that Defendants were unjustly enriched as a
28
result of their wrongful conduct and that it would be against
The two claims are practically identical.
25
In both,
1
equity and good conscience to permit Defendants to retain the ill-
2
gotten benefits.
3
dismiss both claims.
4
FAC ¶¶ 122-23, 141-42.
Defendants move to
As to Count VI, Defendants argue that recent authority
action under California law.
7
Reinalt-Thomas Corp., 11-CV-03548-LHK, 2012 WL 1438812 (N.D. Cal.
8
Apr. 25, 2012).
9
Having reviewed numerous discussions, this Court is persuaded by,
10
United States District Court
suggests that unjust enrichment is not an independent cause of
6
For the Northern District of California
5
and adopts the reasoning of, the cases which hold that claims for
11
restitution or unjust enrichment may survive the pleading stage
12
when pled as an alternative avenue of relief, though the claims, as
13
alternatives, may not afford relief if other claims do.
14
Vicuna v. Alexia Foods, Inc., C 11-6119 PJH, 2012 WL 1497507, at *3
15
(N.D. Cal. Apr. 27, 2012); Larsen v. Trader Joe's Co., C 11-05188
16
SI, 2012 WL 5458396, at *7 (N.D. Cal. June 14, 2012).
17
Count VI is DISMISSED with leave to amend.
18
their complaint to plead this claim in the alternative.
19
MTD at 20-21 (citing Williamson v.
However, not all courts agree on this issue.
E.g.,
Accordingly,
Plaintiffs may amend
With respect to Count IX, Defendants argue that Plaintiffs
20
cannot recover on a theory of unjust enrichment under New York law
21
because the parties executed an agreement governing the subject
22
matter of the dispute.
23
California law, "[t]he theory of unjust enrichment lies as a quasi-
24
contract claim."
Goldman v. Metro. Life Ins. Co., 5 N.Y.3d 561,
25
572 (N.Y. 2005).
Some New York courts have reasoned that, because
26
unjust enrichment creates an obligation in the absence of an
27
agreement, a claim for unjust enrichment cannot be sustained if a
28
valid contract governs the relevant subject matter.
MTD at 21.
26
Under New York law, as under
Id.
Other
1
courts have held that New York law permits alternative pleading of
2
breach of contract and unjust enrichment claims. See Vertex Constr.
3
Corp. v. T.F.J. Fitness L.L.C., 0-CV-683 (CBA) (ALC), 2011 U.S.
4
Dist. LEXIS 135453, 11, 2011 WL 5884209, at *11 (E.D.N.Y. Nov. 23,
5
2011).
6
Under Goldman, claims for unjust enrichment may only be dismissed
7
where the subject matter of the dispute is clearly governed by
8
contract.
9
Office Agreements at issue here remains unclear and is subject to
Defendants' argument fails under both lines of cases.
As discussed in Section III.B.v supra, the scope of the
United States District Court
For the Northern District of California
10
dispute.
11
unjust enrichment are disfavored "because it is difficult to
12
determine the validity or scope of the contract at the pleading
13
stage."
14
Accordingly, Defendants' motion to dismiss Count IX is DENIED.
Likewise, under Vertex, motions to dismiss claims for
2011 WL 5884209, at *11 (quotations omitted).
15
16
17
IV.
CONCLUSION
For the foregoing reasons, Defendant Regus plc's Rule 12(b)(1)
18
motion to dismiss for lack of personal jurisdiction is DENIED
19
WITHOUT PREJUDICE.
20
LLC, Metro Talent, LLC, and CTNY Insurance Group LLC leave to
21
conduct jurisdictional discovery.
22
Regus plc may again move to dismiss pursuant to Rule 12(b)(1).
23
Court also GRANTS in part and DENIES in part Defendants Regus
24
Management Group LLC, Regus Business Centre LLC, Regus plc, and HQ
25
Global Workplaces LLC's 12(b)(6) motion to dismiss for failure to
26
state a claim.
The Court GRANTS Plaintiffs Circle Click Media
27
28
27
Once that discovery is complete,
The
1
•
Count I is DISMISSED WITH PREJUDICE to the extent that it is
2
predicated on a violation of California Civil Code section
3
1950.8.
4
•
Count I remains undisturbed to the extent that it is
5
predicated on a violation of California Civil Code section
6
1671(b).
7
•
Count I is DISMISSED with leave to amend to the extent that it
8
is predicated on California Civil Code sections 1572, 1709,
9
and 1710, and Defendants' allegedly unfair and fraudulent
United States District Court
For the Northern District of California
10
11
business practices.
•
Counts I and II are DISMISSED with leave to amend to the
12
extent that they are predicated on Defendants' allegedly false
13
and misleading advertising.
14
•
Counts III through VI are DISMISSED with leave to amend.
15
•
Counts VII and VIII are DISMISSED WITH PREJUDICE.
16
•
Count IX shall remain undisturbed.
17
Plaintiffs shall file an amended complaint within thirty (30) days
18
of the signature date of this Order.
19
in the dismissal with prejudice of the claims which the Court has
20
granted Plaintiffs leave to amend.
Failure to do so may result
21
22
IT IS SO ORDERED.
23
24
25
Dated: January 3, 2013
UNITED STATES DISTRICT JUDGE
26
27
28
28
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