Ferranti v. Hewlett-Packard Company

Filing 43

ORDER granting 39 Motion to Dismiss. Hearing and Case Management Conference scheduled for 9/19/2014 are VACATED. Signed by Judge Edward J. Davila on 9/16/2014. (ejdlc4S, COURT STAFF) (Filed on 9/16/2014)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 VINCENT FERRANTI, individually and on behalf of all others similarly situated, 9 Plaintiff, 10 United States District Court Northern District of California 11 Case No. 5:13-CV-03847-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS v. HEWLETT-PACKARD COMPANY, 12 Defendant. [Re: Docket Item No. 39] 13 14 15 Before this court is Defendant Hewlett-Packard Company’s (“HP”) Motion to Dismiss 16 Plaintiffs Vincent Ferranti and Carlos Martinho’s (“Plaintiffs”) First Amended Class Action 17 Complaint. Having carefully considered the relevant documents, the court finds this matter 18 suitable for disposition without oral argument pursuant to Civil Local Rule 7–1(b). The hearing 19 scheduled for September 19, 2014 will, therefore, be VACATED. For the reasons stated below, 20 HP’s motion is GRANTED. 21 I. BACKGROUND 22 The First Amended Class Action Complaint contains allegations by Plaintiff Vincent 23 Ferranti, Plaintiff Carlos Martinho, and on behalf of the purported class. Plaintiffs allege that in 24 March 2009, HP released the printer OfficeJet Pro 8500 Wireless. First Am. Compl. (“FAC”), 25 Dkt. No. 16 at ¶ 20. Almost immediately, through HP support online forums, HP began to receive 26 complaints about a defect in the printer whereby the printers were designed and/or manufactured 27 in a way that the wireless function failed during normal use. Id. at ¶¶ 17, 21-23, 25. Moreover, 28 Case No. 5:13-CV-03847-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 various websites gave the printer poor reviews due to the performance of the wireless function. Id. 2 at ¶¶ 24, 27-28. In November 2011, HP released the printer OfficeJet Pro 8600 Wireless, which 3 had the same defective wireless technology as the OfficeJet Pro 8500 Wireless. Id. at ¶ 29. 4 Online reviews for the OfficeJet Pro 8600 Wireless were also poor. Id. at ¶¶ 30-31. 5 The printers allegedly come with HP’s Limited Warranty that warrants the product is free 6 from defects in materials and workmanship, and it covers defects arising from normal use of the 7 product. Id. at ¶ 33. It is valid for one year from date the printer was purchased, or valid for one 8 year from the date the printer was replaced through the warranty. Id. at ¶ 34. The warranty 9 provides that HP will repair or replace the product, or refund the purchase price. Id. at ¶ 35. 10 Plaintiff Mr. Ferranti alleges that on March 25, 2009, he “obtained” a defective HP 8500 United States District Court Northern District of California 11 Wireless printer as a warranty replacement for a different model HP printer that was also 12 defective. Id. at ¶ 39. Mr. Ferranti soon noticed that the printer’s wireless function did not work 13 and he contacted HP. Id. at ¶ 40. HP told him that the printer was covered under the warranty, 14 which began on the date he obtained the printer, and proceeded to offer technical support that was 15 unsuccessful. Id. On September 27, 2009, Mr. Ferranti exchanged his HP 8500 Wireless printer 16 for the same model. Id. at ¶ 41. On multiple occasions between April 2010 and May 2013, Mr. 17 Ferranti contacted HP’s Tech Support to notify them of the defect, and to request a repair or 18 replacement. Id. at ¶ 43. HP allegedly was never able to repair the defect, but instead offered 19 temporary solutions. Id. at ¶ 44. During one of the phone calls, an HP Tech Support agent told 20 Mr. Ferranti that the malfunction was caused by a hardware defect that would continue to be a 21 problem and would become worse. Id. at ¶ 45. The agent offered Mr. Ferranti a discount off a 22 new printer, but not a full refund as required by the warranty if HP was unable to repair or replace 23 a defective printer. Id. at ¶ 45. 24 Plaintiff Mr. Martinho alleges that on December 22, 2009, he purchased an HP 8500 25 Wireless printer. Id. at ¶ 49. When he installed the printer, he realized that the wireless function 26 was not working. Id. On December 28, 2009, Mr. Martinho went back to the store and exchanged 27 the printer for another HP 8500 Wireless printer, but then found that this second printer also had 28 2 Case No. 5:13-CV-03847-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 problems with its wireless function. Id. at ¶ 50. Since the purchase of the first printer, he had 2 called HP customer support on various occasions and was told that the wireless connection on the 3 printers was a known issue. Id. at ¶ 51. Following the instructions from HP’s representatives, he 4 downloaded and installed ten software patches, none of which was successful in resolving the 5 problem. Id. On January 10, 2010, Mr. Martinho purchased an HP 8600 Wireless printer. Id. at ¶ 6 52. After one week of using this third printer, Mr. Martinho found that it, too, had problems with 7 the wireless function, thus he contacted HP customer support. Id. Because HP failed to fix it, Mr. 8 Martinho was unable to use the printer’s wireless function. Id. 9 As to the putative class, the complaint identifies two groups: the “Class” and “Subclass A.” Id. at ¶ 53. The Class consists of: “All persons and entities in the United States (including its 11 United States District Court Northern District of California 10 Territories and the District of Columbia) who currently own or lease or formerly owned or leased 12 an HP Officejet Pro 8500 or 8600 Wireless All-in-One printer.” Id. Subclass A consists of: “All 13 Class Members who notified HP of the Defect during the term of the Warranty.” Id. Excluded 14 from either of these groups are HP and individuals and entities related to it, and all federal court 15 judges who may preside over this case, as well as their staff and immediate family members. Id. 16 The complaint states that if this court finds that California consumer protection law should not be 17 uniformly applied, then Plaintiffs propose two subclasses: (1) an Arizona subclass represented by 18 Plaintiff Mr. Ferranti for class members who purchased or leased the printers in Arizona; and (2) a 19 New York subclass represented by Plaintiff Mr. Martinho for class members who purchased or 20 leased the printers in New York. Id. at ¶ 54. 21 Plaintiffs commenced the instant action on August 20, 2013, which was assigned to Judge 22 Lucy Koh. See Dkt. No. 1. After HP filed a motion to dismiss, Plaintiffs filed the present First 23 Amended Class Action Complaint in November 2013. See Dkt. Nos. 13, 16. After Judge Koh 24 recused herself, this case was reassigned to the undersigned judge. See Dkt. Nos. 36-37. HP filed 25 the instant Motion to Dismiss on May 28, 2014. See Dkt. No. 39. Plaintiffs filed an opposition 26 brief, and HP filed a reply brief. See Dkt. Nos. 40-41. 27 28 Plaintiffs allege that HP: (1) refuses to properly repair printers under the warranty; (2) 3 Case No. 5:13-CV-03847-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 refuses to replace the defective printers with non-defective printers; (3) refuses to refund the 2 purchase price; and (4) fails to disclose that the malfunction of the printers’ wireless function is 3 due to a defect. Id. at ¶¶ 36, 38. The First Amended Complaint consists of the following claims: 4 (1) violation of the Consumers Legal Remedies Act (“CLRA”), California Civil Code § 1750, et 5 seq.; (2) for unlawful, unfair, and fraudulent business practices under California’s Unfair 6 Competition Law (“UCL”), Business and Professions Code § 17200, et seq.; (3) on behalf of 7 Subclass A for breach of express warranty under the Magnuson-Moss Warranty Act, 15 U.S.C. § 8 2301, et seq.; (4) on behalf of Subclass A for breach of express warranty; (5) in the alternative, by 9 Plaintiff Mr. Ferranti on behalf of Arizona Subclass for violation of the Arizona Consumer Fraud Act, A.R.S. § 44-1522; and (6) in the alternative, by Plaintiff Mr. Martinho on behalf of New York 11 United States District Court Northern District of California 10 Subclass for violation of the New York General Business Law § 349. FAC at ¶¶ 62-116. 12 Plaintiffs seek actual and punitive damages, and attorneys’ fees. Id. at ¶¶ 117-118. 13 II. 14 LEGAL STANDARD Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim with sufficient 15 specificity to “give the defendant fair notice of what the . . . claim is and the grounds upon which 16 it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). A complaint 17 which falls short of the Rule 8(a) standard may be dismissed if it fails to state a claim upon which 18 relief can be granted. Fed. R. Civ. P. 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only 19 where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable 20 legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). 21 Moreover, the factual allegations “must be enough to raise a right to relief above the speculative 22 level” such that the claim “is plausible on its face.” Twombly, 550 U.S. at 556-57. 23 When deciding whether to grant a motion to dismiss, the court generally “may not consider 24 any material beyond the pleadings.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 25 1542, 1555 n.19 (9th Cir. 1990). The court must accept as true all “well-pleaded factual 26 allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The court must also construe the 27 alleged facts in the light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 28 4 Case No. 5:13-CV-03847-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 1245 (9th Cir. 1988). However, the court may consider material submitted as part of the 2 complaint or relied upon in the complaint, and may also consider material subject to judicial 3 notice. See Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). But “courts are not 4 bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 5 555. Fraud-based claims are subject to heightened pleading requirements under Federal Rule of 6 7 Civil Procedure 9(b). In that regard, a plaintiff alleging fraud “must state with particularity the 8 circumstances constituting fraud.” Fed. R. Civ. P. 9(b). The allegations must be “specific enough 9 to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything 11 United States District Court Northern District of California 10 wrong.” Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985). To that end, the allegations 12 must contain “an account of the time, place, and specific content of the false representations as 13 well as the identities of the parties to the misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 14 756, 764 (9th Cir. 2007). Averments of fraud must be accompanied by the “who, what, when, 15 where, and how” of the misconduct charged. Vess v. Ciba–Geigy Corp. USA, 317 F.3d 1097, 16 1106 (9th Cir. 2003) (citation omitted). Additionally, “the plaintiff must plead facts explaining 17 why the statement was false when it was made.” Smith v. Allstate Ins. Co., 160 F. Supp. 2d 1150, 18 1152 (S.D. Cal. 2001) (citation omitted); see also In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 19 1549 (9th Cir. 1994) (en banc) (superseded by statute on other grounds). 20 III. DISCUSSION 21 A. Statute of Limitations 22 Although a Rule 12(b)(6) motion cannot generally be used to raise an affirmative defense, 23 it may be the proper vehicle to raise a complete defense or bar to recovery appearing on the face of 24 the complaint, such as the expiration of the statute of limitations. See Jablon v. Dean Witter & 25 Co., 614 F.2d 677, 682 (9th Cir. 1980). A motion to dismiss based on the running of the statute of 26 limitations may be granted “only if the assertions in the complaint, read with the required 27 liberality, would not permit the plaintiff to prove that the statute was tolled.” Pisciotta v. Teledyne 28 5 Case No. 5:13-CV-03847-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 2 Indus., Inc., 91 F.3d 1326, 1331 (9th Cir. 1996). Here, HP argues that Plaintiffs’ CLRA and UCL claims are time barred. Each will be 3 addressed in turn. 4 1. 5 Under the CLRA, several “unfair methods of competition and unfair or deceptive acts or 6 practices undertaken by any person in a transaction intended to result or which results in the sale 7 or lease of goods or services to any consumer are unlawful.” Cal. Civ. Code § 1770(a). The 8 statute of limitations is “three years from the date of the commission of such method, act, or 9 practice.” Id. at § 1783. Under California law, “the limitations period, the period in which a Consumers Legal Remedies Act plaintiff must bring suit or be barred, runs from the moment a claim accrues.” Aryeh v. Canon 11 United States District Court Northern District of California 10 Bus. Solutions, Inc., 55 Cal. 4th 1185, 1191 (2013). If there are no equitable exceptions, then a 12 claim accrues upon “the occurrence of the last element essential to the cause of action.” Id. 13 In its motion, HP argues that the accrual of the CLRA claim began when Plaintiffs first 14 learned that their printers suffered from wireless connectivity problems. Dkt. No. 39 at 5. 15 Plaintiffs, however, argue that the delayed discovery rule should apply whereby the accrual of a 16 claim is postponed until “the plaintiff discovers, or has reason to discover, the cause of action.” 17 Dkt. No. 40 at 12 (citing Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1024 (9th Cir. 18 2008)). In Clemens, the Ninth Circuit stated that under the discovery rule, “the start of the 19 limitations period is postponed only if [the plaintiff] has made an affirmative showing that he 20 lacked inquiry notice and subsequently gained such notice less than three years before filing his 21 action.” Clemens, 534 F.3d at 1024-25 (the three-year statute of limitations in Clemens pertains to 22 a Civil Code fraud claim under Cal. Code of Civ. P. § 338(d)). To invoke the discovery rule, “the 23 plaintiff must specifically plead facts which show (1) the time and manner of discovery and (2) the 24 inability to have made earlier discovery despite reasonable diligence.” Yumul v. Smart Balance, 25 Inc., 733 F. Supp. 2d 1134, 1141 (C.D. Cal. 2010). 26 In Plaintiffs’ complaint, Mr. Ferranti alleges that he noticed the wireless connectivity 27 problem shortly after he acquired the printer in March 2009. FAC at ¶¶ 39-40. After receiving 28 6 Case No. 5:13-CV-03847-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 technical support, he exchanged his printer for another one of the same model in September 2009. 2 Id. at ¶¶ 40-41. On multiple occasions between April 2010 and May 2013, Mr. Ferranti contacted 3 technical support regarding the alleged defect. Id. at ¶ 43. 4 Even when applying the discovery rule, the complaint does not allege when Mr. Ferranti 5 discovered the defect. It suggests that, at the latest, Mr. Ferranti discovered the defect in 6 September 2009, which would allow him to file a complaint by September 2012. He did not file 7 the complaint, however, until August 2013. Moreover, given the allegations that consumer 8 complaints were posted on HP Support Forums as early as April 2009 and continued throughout 9 the years, it is difficult to conceive that Mr. Ferranti had the inability to have made earlier discovery despite reasonable diligence so as to justify the use of the discovery rule. See FAC at ¶¶ 11 United States District Court Northern District of California 10 23, 25. For these reasons, HP’s motion to dismiss Mr. Ferranti’s CLRA claim is GRANTED. 12 In Plaintiffs’ complaint, Mr. Martinho alleges that he realized his printer’s wireless 13 function was not working in December 2009. FAC at ¶¶ 49-50. He then exchanged this printer 14 with a second printer that also had problems with its wireless function. Id. at ¶ 50. Mr. Martinho 15 then purchased a third printer in January 2010 that suffered from the same problem. Id. at ¶ 52. 16 Likewise, even when applying the discovery rule, the complaint does not allege when Mr. 17 Martinho discovered the defect. It suggests that, at the latest, he discovered the defect in January 18 2010 when he acquired the third printer, which would allow him to file a complaint by January 19 2013. Given that he filed the complaint months later, HP’s motion to dismiss Mr. Martinho’s 20 CLRA claim is GRANTED. 21 2. Unfair Competition Law 22 Under the UCL, unfair competition including “any unlawful, unfair or fraudulent business 23 act or practice and unfair, deceptive, untrue or misleading advertising” is prohibited. Cal. Bus. & 24 Prof. Code § 17200. The statute of limitations for an unfair competition claim is “four years after 25 the cause of action accrued.” Id. at § 17208. UCL claims are governed by the default last element 26 accrual rule in which a claim is accrued when it is complete with all of its elements—wrongdoing, 27 harm, and causation. Aryeh, 55 Cal. 4th at 1197 (citation omitted). 28 7 Case No. 5:13-CV-03847-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS HP argues that Plaintiff Mr. Ferranti’s claim accrued at the time of sale because HP’s 1 2 alleged failure to disclose the defect at the time of purchase completed the elements of the claim. 3 Dkt. No. 39 at 7. In their opposition, Plaintiffs raise the delayed discovery rule argument, which 4 also applies to UCL claims. Dkt. No. 40 at 12. See Aryeh, 55 Cal. 4th at 1196. Applying the default last element accrual rule, Mr. Ferranti’s claim began to accrue when 5 6 he purchased 1 the first alleged defective printer in March 2009, thus having until March 2013 to 7 file a complaint. There is no justification to apply the delayed discovery rule given that this claim 8 suffers from the same pleading deficiencies as the CLRA claim above. For these reasons, HP’s 9 motion to dismiss this claim is GRANTED. 10 B. HP does not argue that Plaintiff Mr. Martinho’s UCL claim is time barred, thus it survives 11 United States District Court Northern District of California Plaintiff Mr. Martinho’s UCL Claim 12 for further analysis. Mr. Martinho’s UCL claim sounds in fraud and is, thus, subject to the 13 heightened pleading requirement of Rule 9(b). See Kearns v. Ford Motor Co., 567 F.3d 1120, 14 1125 (9th Cir. 2009). 15 In a UCL omissions case, plaintiff must allege a duty to disclose: “Absent a duty to 16 disclose, the failure to do so does not support a claim under the fraudulent prong” of UCL. 17 Berryman v. Merit Prop. Mgmt., Inc., 152 Cal. App. 4th 1544, 1557 (2007). To be actionable, 18 “the omission must be contrary to a representation actually made by the defendant, or an omission 19 of a fact the defendant was obliged to disclose.” Daughtery v. Am. Honda Motor Co., 144 Cal. 20 App. 4th 824, 835 (2006). California law provides that nondisclosure or concealment can 21 constitute fraud when: (1) “the defendant is in a fiduciary relationship with the plaintiff;” (2) “the 22 defendant had exclusive knowledge of material facts not known to the plaintiff;” (3) “the 23 defendant actively conceals a material fact from the plaintiff;” and (4) “when the defendant makes 24 partial representations but also suppresses some material facts.” Herron v. Best Buy Co., Inc., 924 25 26 27 28 1 The complaint alleges that on March 25, 2009, Plaintiff Mr. Ferranti “obtained” an alleged defective printer. See FAC at ¶ 39. If Plaintiffs file an amended complaint, it will be helpful to this court to know whether Mr. Ferranti purchased the printer, or obtained it through other means. 8 Case No. 5:13-CV-03847-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 F. Supp. 2d 1161, 1174 (E.D. Cal. 2013). In its motion, HP argues that there is no broad duty to disclose alleged defects. Dkt. No. 2 3 39 at 9. HP argues that such a duty does arise, however, when the manufacturer had made a 4 misrepresentation or the alleged defects create an unreasonable risk to plaintiff’s safety, none of 5 which Plaintiffs have alleged. Id. Plaintiffs argue that their allegations of HP having superior 6 knowledge of the defect, failing to disclose, and intentionally concealing the defect at the time of 7 sale establishes a duty to disclose. Dkt. No. 40 at 8. Plaintiffs allege that HP had a duty to disclose the defective nature of the printers, and its 9 failure to disclose constitutes a breach of its duty. Id. at ¶ 77. Plaintiffs, however, do not allege 10 what duty is created between HP and Plaintiff Mr. Martinho. Moreover, Plaintiffs do not allege 11 United States District Court Northern District of California 8 with particularity how HP had exclusive knowledge of material facts not known to Mr. Martinho 12 when the complaint alleges that there were consumer complaints posted on HP Support Forums 13 and poor reviews on other websites. See FAC at ¶¶ 23-31. Accordingly, HP’s motion to dismiss 14 this claim is GRANTED. 15 C. Breach of Warranty Claims An express warranty is “a contractual promise from the seller that the goods conform to the 16 17 promise. If they do not, the buyer is entitled to recover the difference between the value of the 18 goods accepted by the buyer and the value of the goods had they been as warranted.” Daugherty, 19 144 Cal. App. 4th at 830. Here, the warranty at issue provides printers with a one-year limited warranty. See Dkt. 20 21 No. 39-1, Ex. A at 3. 2 It “warrants to the end-user customer that [HP printers] be free from 22 defects in materials and workmanship for [one year], which duration begins on the date of 23 purchase by the customer.” Id. The warranty “covers only those defects that arise as a result of 24 25 26 27 28 2 A copy of HP’s limited warranty was provided by HP’s counsel as an exhibit. Plaintiffs did not provide a copy and did not indicate in their complaint, using quotes, the exact wording of the warranty. See FAC at ¶¶ 33-35. Nonetheless, the exhibit can properly be considered in a motion to dismiss when the contents are alleged in the complaint and the parties do not question its authenticity. See Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds in Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). 9 Case No. 5:13-CV-03847-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 normal use of the product . . . .” Id. Moreover, “[i]f HP receives, during the applicable warranty 2 period, notice of a defect in any product which is covered by HP’s warranty, HP shall either repair 3 or replace the product, at HP’s option . . . If HP is unable to repair or replace, as applicable, a 4 defective product which is covered by HP’s warranty, HP shall, within a reasonable time after 5 being notified of the defect, refund the purchase price for the product . . . HP shall have no 6 obligation to repair, replace, or refund until the customer returns the defective product to HP . . . 7 Any replacement product may be either new or like-new, provided that it has functionality at least 8 equal to that of the product being replaced.” Id. 9 HP argues that its one-year limited warranty is a warranty for repairing and replacing the product, not a promise that the use of the printer will be uninterrupted and error free. Dkt. No. 39 11 United States District Court Northern District of California 10 at 16-17. Moreover, it argues that if Plaintiffs did have a one-year warranty when they first 12 purchased the printer and another one-year warranty for every replacement printer thereafter, then 13 HP did act according to the terms of the warranty because HP replaced the printer and then 14 repaired it even after the warranty expired. Id. at 18-19. Additionally, HP argues that Plaintiff 15 Mr. Martinho’s allegations are insufficient because he received a free replacement printer, but 16 does not allege that HP refused to repair or replace his second printer or that HP was aware that its 17 efforts to repair were unsuccessful. Id. at 20. 18 This court is inclined to agree with HP because Plaintiffs’ arguments are inconsistent. On 19 the one hand, Plaintiffs allege that HP failed to replace or repair the defective printers. FAC at ¶¶ 20 36, 38. On the other hand, Plaintiffs allege that HP did replace Plaintiffs’ printers and that 21 Plaintiffs were able to call HP Tech Support between 2009 and 2013. Id. at ¶¶ 39-40, 42-43, 51- 22 52. The fact that Plaintiffs did receive replacement printers and were able to get assistance from 23 Tech Support indicates that HP did comply with its warranty. Plaintiffs suggest that HP should 24 have replaced the printers with “a non-defective printer,” but Plaintiffs fail to allege that they 25 requested a wireless printer that was not the alleged defective HP 8500 or 8600 printers, and was 26 denied the request. See id. ¶ 36. Furthermore, Plaintiffs do not make factual allegations of when 27 28 10 Case No. 5:13-CV-03847-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

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