Main v. Gateway Genomics, LLC et al

Filing 41

ORDER granting 34 Defendant's Motion to Dismiss; denying 34 Defendant's Motion to Strike. the Court orders as follows: (1) The Court DENIES Defendant's motion to strike Plaintiff's class definition; (2) GRANTS Defendant' ;s motion to dismiss; and (3) DENIES WITH PREJUDICE Plaintiff's cause of action for breach of implied warranty of fitness for a particular purpose. Plaintiff is granted fourteen (14) days from the date of this Order to file a third amended complaint correcting the deficiencies noted herein. Failure to do so will result in the Court dismissing this case with prejudice. Signed by Judge Anthony J. Battaglia on 4/25/2017. (acc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 15 16 ORDER: Plaintiff, 13 14 Case No.: 15cv2945 AJB (WVG) JESSICA AZAR, on behalf of herself and all others similarly situated, v. (1) GRANTING DEFENDANT’S MOTION TO DISMISS; AND (Doc. No. 34) GATEWAY GENOMICS, LLC dba SNEAKPEEK; and DOES 1 through 20, inclusive, (2) DENYING DEFENDANT’S MOTION TO STRIKE. Defendants. 17 18 19 This matter comes before the Court on Defendant Gateway Genomics, LLC’s 20 21 22 23 24 25 26 27 (“Defendant”) motion to dismiss and motion to strike Plaintiff Jessica Azar’s1 (“Plaintiff”) second amended complaint (“SAC”). (Doc. No. 34.) Plaintiff opposes the motion. (Doc. No. 37.) Having reviewed the parties’ arguments and controlling legal authority and pursuant to Civil Local Rule 7.1.d.1., the Court finds the matter suitable for decision on the papers and without oral argument. For the reasons set forth more fully below, the Court DENIES Defendant’s motion to strike Plaintiff’s class definition and GRANTS                                                                   1 28 The initial Plaintiff in the instant matter was Kristine Main (“Ms. Main”), a resident of Ohio. (Doc. No. 21 ¶ 2.) However, as of August 1, 2016, Ms. Main is no longer a Plaintiff in this lawsuit. (Id.) 1 15cv2945 AJB (WVG) 1 Defendant’s motion to dismiss. 2 I. BACKGROUND 3 The following facts are taken from the SAC and construed as true for the limited 4 purpose of resolving the pending motion. See Moyo v. Gomez, 40 F.3d 982, 984 (9th Cir. 5 1994). 6 Defendant is a Delaware limited liability company with its principal place of 7 business in La Jolla, California. (Doc. No. 21 ¶ 5.) One of Defendant’s products is 8 “SneakPeek,” which is an early detection gender test that sells for $99.00. (Id. ¶¶ 9, 12.) 9 Defendant advertises SneakPeek alleging that from a drop of blood, SneakPeek can detect 10 a baby’s gender with 99% accuracy from as early as nine weeks into a woman’s pregnancy. 11 (Id. ¶ 10.) 12 Based on Defendant’s marketing materials, website, and claims that it could detect 13 a baby’s gender earlier than a sonogram and with 99% accuracy, Plaintiff purchased 14 SneakPeek on December 9, 2015. (Id. ¶ 11.) At the time Plaintiff took the test, she was 15 approximately fourteen weeks pregnant. (Id. ¶ 13.) On December 17, 2015, Plaintiff 16 received an email from Defendant stating that she would be giving birth to a baby boy. (Id. 17 ¶ 14.) However, on February 1, 2016, following a sonogram, Plaintiff’s doctor informed 18 her that she was pregnant with a baby girl. (Id. ¶ 15.) On June 10, 2016, Plaintiff gave birth 19 to a baby girl. (Id. ¶ 16.) 20 Plaintiff alleges that she is not the only one to have received a false test result. In 21 support of this allegation, Plaintiff provides nine online consumer complaints that refer to 22 SneakPeek as a “Scam,” allege that SneakPeek is around 60% accurate, and contend that 23 SneakPeek is aware of its test’s inaccuracies. (Id. at 7-10.) Plaintiff asserts that 24 SneakPeek’s reliability is more akin to a “proverbial coin flip.” (Id. ¶ 20.) 25 II. PROCEDURAL BACKGROUND 26 On December 29, 2015, Ms. Main filed a complaint. (Doc. No. 1.) On February 1, 27 2016, Plaintiff and Ms. Main filed an amended complaint. (Doc. No. 7.) On April 22, 2016, 28 Defendant filed a motion to dismiss for lack of jurisdiction, motion to dismiss for failure 2 15cv2945 AJB (WVG) 1 to state a claim, and a motion to enforce arbitration. (Doc. No. 12.) On August 1, 2016, the 2 Court granted in part Defendant’s motion to dismiss for lack of standing, dismissed Ms. 3 Main’s claim for lack of standing, dismissed Plaintiff’s claim for injunctive relief, denied 4 Defendant’s request to compel arbitration, and granted in part and denied in part 5 Defendant’s motion to dismiss for failure to state a claim. (Doc. No. 20 at 32.) 6 On September 30, 2016, Plaintiff filed her SAC. (Doc. No. 21.) Plaintiff brings the 7 action on behalf of herself and others similarly situated claiming violations of: (1) the 8 California Unfair Competition Law (“UCL”); (2) the California False Advertising Law 9 (“FAL”); (3) Fraud; (4) Breach of Express Warranty; (5) Breach of Implied Warranty of 10 Merchantability; (6) Breach of Implied Warranty of Fitness; (7) Unjust Enrichment; and 11 (8) California Civil Code §§1750 (“CLRA”). (Id. at 14-24.) On October 14, 2016, the 12 parties filed a joint motion to stay the case pending settlement discussions, (Doc. No. 23), 13 which was granted on the same day. (Doc. No. 24.) On December 12, 2016, both parties 14 filed a joint statement informing the Court that the matter had not settled. (Doc. No. 31 at 15 2.) On February 6, 2017, Defendant filed the instant motion, its motion to dismiss and to 16 strike Plaintiff’s SAC. (Doc. No. 34.) 17 III. LEGAL STANDARD 18 A. 19 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a plaintiff’s 20 complaint and allows a court to dismiss a complaint upon a finding that the plaintiff has 21 failed to state a claim upon which relief may be granted. See Navarro v. Block, 250 F.3d 22 729, 732 (9th Cir. 2001). “[A] court may dismiss a complaint as a matter of law for (1) lack 23 of a cognizable legal theory or (2) insufficient facts under a cognizable legal claim.” 24 SmileCare Dental Grp. v. Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir. 1996) 25 (citations omitted). However, a complaint will survive a motion to dismiss if it contains 26 “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. 27 Twombly, 550 U.S. 544, 570 (2007). In making this determination, a court reviews the 28 contents of the complaint, accepting all factual allegations as true, and drawing all Motion to Dismiss 3 15cv2945 AJB (WVG) 1 reasonable inferences in favor of the nonmoving party. Cedars-Sinai Med. Ctr. v. Nat’l 2 League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007). 3 Notwithstanding this deference, the reviewing court need not accept “legal 4 conclusions” as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for a 5 court to assume “the [plaintiff] can prove facts that [he or she] has not alleged.” Associated 6 Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 7 (1983). 8 B. 9 Under Rule 12 of the Federal Rules of Civil Procedure, on its own or by motion, the 10 court may strike from a pleading an “insufficient defense or any redundant, immaterial, 11 impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). The purpose of Rule 12(f) is to 12 “avoid the expenditure of time and money that must arise from litigating spurious issues 13 by dispensing with those issues prior to trial . . . .” Sidney–Vinstein v. A.H. Robins Co., 697 14 F.2d 880, 885 (9th Cir. 1983). The Court must view the pleadings in the light most 15 favorable to the non-moving party, and the information will not be stricken unless it is 16 evident that is has no bearing on the subject matter of the litigation. Cal. Dept. of Toxic 17 Substances Control v. Alco Pac., Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002). “Any 18 doubt concerning the import of the allegations to be stricken weighs in favor of denying 19 the motion to strike.” In re Wal-Mart Stores, Inc. Wage & Hour Litig., 505 F. Supp. 2d 20 609, 614 (N.D. Cal. 2007) (citation omitted). 21 IV. Motion to Strike DISCUSSION 22 A. 23 As an initial matter, Defendant contends that Plaintiff’s class definition is overbroad 24 and should thus be stricken under Federal Rule of Civil Procedure (“FRCP”) 12(f). (Doc. 25 No. 34-1 at 11.) In opposition, Plaintiff claims that Defendant’s motion is inappropriate at 26 this time as Plaintiff has not brought a motion for class certification. (Doc. No. 37 at 11.) Plaintiff’s Class Definition 27 While the Court appreciates the ample briefing provided by both parties on this issue, 28 the Court agrees with Plaintiff and finds Defendant’s motion to strike Plaintiff’s class 4 15cv2945 AJB (WVG) 1 allegation to be premature. Generally, courts review class allegations through a motion for 2 class certification. See Moreno v. Baca, No. CV007149ABCCWX, 2000 WL 33356835, 3 at *2 (C.D. Cal. Oct. 13, 2000) (finding defendants’ motion to strike the class allegation as 4 premature because no motion for class certification was before the court); see also In re 5 NVIDIA GPU Litig., No. C 08-04312 JW, 2009 WL 4020104, at *13 (N.D. Cal. Nov. 19, 6 2009) (“A determination of the ascertainability and manageability of the putative class in 7 light of the class allegations is best addressed at the class certification stage of litigation.”); 8 In re Jamster Mktg. Litig., No. 05CV0819 JM (CAB), 2009 WL 1456632, at *7 (S.D. Cal. 9 May 22, 2009). Accordingly, at this point in the litigation, the Court is not prepared to rule 10 on the propriety of Plaintiff’s class allegations. Consequently, Defendant’s motion to strike 11 the class allegations is DENIED, but WITHOUT PREJUDICE as to Defendant’s ability 12 to move to strike or dismiss the class allegations if and when class certification is sought. 13 B. 14 Defendant contends that all of Plaintiff’s claims are incurably deficient and must be 15 dismissed with prejudice. (Doc. No. 34-1 at 7, 29.) Specifically, Defendant argues that 16 Plaintiff’s nationwide class action asserting only state consumer protection laws should be 17 dismissed pursuant to the Ninth Circuit’s holding in Mazza v. Am. Honda Motor Co., 666 18 F.3d 581 (9th Cir. 2012). (Id.) In opposition, Plaintiff argues that each of her causes of 19 action are adequately pled, and that Defendant has not met its burden in proving that 20 Plaintiff’s nationwide claims under California state law should be dismissed. (Doc. No. 37 21 at 18-30.) 22 Defendant’s Motion to Dismiss i. Plaintiff’s Nationwide Claims under Mazza 23 Applying the Ninth Circuit Court of Appeals’ holding in Mazza, Defendant contends 24 that Plaintiff’s UCL, FAL, and CLRA claims should be dismissed, because those claims 25 should be governed by the consumer protection laws of the jurisdiction in which the 26 transaction took place. (Doc. No. 34-1 at 18.) Plaintiff retorts and argues that Mazza is 27 inapplicable to the present matter as the court in Mazza was resolving a motion for class 28 certification. (Doc. No. 37 at 21.) 5 15cv2945 AJB (WVG) 1 The Court first notes that courts within this district have declined to apply the type 2 of choice of law analysis proscribed in Mazza at the pleading stage, and instead have 3 deferred the issue until class certification. See e.g., Doe v., No. 13- 4 cv-03376-LHK, 2014 WL 1494347, at *7 (N.D. Cal. Apr. 16, 2014); Clancy v. The 5 Bromley Tea Co., 308 F.R.D. 564, 572 (N.D. Cal. 2013); In re iPhone 4S Consumer Litig., 6 No. C 1201127, 2013 WL 3829653, at *8–9 (N.D. Cal. July 23, 2013). In coming to this 7 conclusion, these courts have reasoned that the choice of law analysis is a fact-specific 8 inquiry, which requires a more developed factual record than is available at the motion to 9 dismiss stage. 10 On the other hand, other cases decided in this district disagree and found that 11 although Mazza was decided at the class certification stage, “the principle articulated in 12 Mazza applies generally and is instructive even when addressing a motion to dismiss.” 13 Frezza v. Google Inc., No. 5:12-cv-00237-RMW, 2013 WL 1736788, at *6 (N.D. Cal. Apr. 14 22, 2013). Moreover, courts have held that even at the pleading stage, Mazza is “not only 15 relevant but controlling . . . .” Id. at 5. Thus, California district courts have applied Mazza 16 at the motion to dismiss stage. See Granfield v. NVIDIA Corp., No. C 11-05403-JW, 2012 17 WL 2847575, at *3 (N.D. Cal. July 11, 2012). 18 In light of the legal principles established in Mazza, the Court agrees that Mazza can 19 be applied at the motion to dismiss stage. However, in the circumstances of this case, the 20 Court concludes that it is appropriate to delay the Court’s analysis of the choice of law 21 issue until Plaintiff files a motion for class certification. First, the Court notes that there 22 exist factual differences between Mazza and Plaintiff’s Complaint that preclude the Court 23 from applying Mazza’s fact specific inquiry in the present motion.2 For example, the Court 24 highlights that the transaction that caused the alleged injury in Mazza, (i.e., the lease or 25 purchase of a Honda automobile), did not occur in California for the majority of the class 26                                                                   27 2 28 Defendant argues that because Mazza encompasses the same claims Plaintiff asserts in her SAC that Mazza is controlling authority and Defendant need not provide an analysis demonstrating that California consumer laws differ from other states. (Doc. No. 38 at 9.) 6 15cv2945 AJB (WVG) 1 members. Mazza, 666 F.3d at 590. Additionally, the plaintiffs purchased their vehicles in 2 Orlando, Florida, and Gaithersburg, Maryland. Id. at 587. In comparison, Plaintiff 3 purchased SneakPeek while in California, lives in California, and the resulting alleged 4 injury happened in California. (Doc. No. 21 ¶¶ 4-5, 11.) Second, the Court does not find 5 that this case is so clear that deferring a choice of law analysis until class certification 6 would be unconstructive. See Frenzel v. AliphCom, 76 F. Supp. 3d 999, 1008 (N.D. Cal. 7 2014) (holding that deferring choice of law issues until class certification is unwarranted 8 in cases where the plaintiff in the case is a nonresident who did not purchase the defendant’s 9 product in California) (emphasis added). 10 Furthermore, the Court finds the case law cited by Defendant to be inapplicable to 11 the present matter. For instance, in Route v. Mead Johnson Nutrition Co., No. CV 12-7350- 12 GW (JEMx), 2013 WL 658251, at *8–9 (C.D. Cal. Feb. 21, 2013), defendant’s request to 13 strike plaintiff’s request for certification of a nationwide class was granted because 14 California had no connection to the case other than its interest in product sales. 15 Accordingly, the court held that deferring the choice of law issue until the motion for 16 certification would be a waste of judicial resources as the Court could not see how plaintiff 17 could ever demonstrate that California’s choice of law rules as set forth in Mazza could be 18 certified in California. Id. at *9. In comparison, the instant case has significant ties to 19 California, as the product was purchased in California, and Plaintiff is a resident of 20 California. (Doc. No. 21 ¶¶ 4-5, 11.) Moreover, in Horvath v. L.G Elec. Mobilecomm 21 U.S.A., Inc., No. 3:11-CV-01576-H-RBB, 2012 WL 2861160, at *3 (S.D. Cal. Feb. 13, 22 2012), the court only dismissed claims of the named plaintiffs that were nonresidents of 23 California. 24 Ultimately, the Court finds that a choice of law analysis must be conducted on a case 25 by case basis that requires “analyzing various states’ laws under the circumstances of the 26 particular case and given the particular [legal] issue in question.” See Bruno v. Eckhart 27 Corp., 280 F.R.D. 540, 545 (C.D. Cal. 2012). Accordingly, the Court is unable to determine 28 at this stage whether California’s choice of law rules apply to bar all, some, or none of 7 15cv2945 AJB (WVG) 1 Plaintiff’s claims. See Forcellati v. Hyland’s Inc., 876 F. Supp. 2d 1155, 1159 (C.D. Cal. 2 2012) (concluding that Mazza did not purport to create a bright line rule that nationwide 3 classes are “as a matter of law, uncertifiable under California’s consumer protection 4 laws.”). Consequently, Defendant’s motion to dismiss Plaintiff’s nationwide claims under 5 California Consumer State Law is DENIED. 6 ii. Plaintiff’s Claims under UCL, FAL, and CLRA 7 Defendant also argues that Plaintiff’s UCL, FAL, and CLRA claims fail pursuant to 8 FRCP 83, as Plaintiff’s use of nine online consumer complaints does not adequately support 9 her allegations. (Doc. No. 34-1 at 23.) In opposition, Plaintiff argues that the consumer 10 complaints are sufficient evidence that Defendant knew or should have known that it was 11 presenting false, misleading, or omitted material on the reliability of the SneakPeek test. 12 (Doc. No. 37 at 25.) 13 The CLRA prohibits “unfair methods of competition and unfair or deceptive acts or 14 practices in transaction for the sale or lease of goods to consumers.” Cal. Civ. Code § 15 1770(a). California’s FAL makes it unlawful for a business to disseminate any statement 16 “which is untrue or misleading, and which is known, or which by the exercise of reasonable 17 care should be known, to be untrue or misleading.” Cal. Bus & Prof. Code 17500. 18 California’s UCL provides a cause of action for business practices that are (1) unlawful, 19 (2) unfair, or (3) fraudulent. Cal. Bus. & Prof. Code §§ 17200, et seq. 20 Plaintiff predicates her UCL, FAL, and CLRA claims on the allegation that 21 Defendant’s knew that SneakPeek was not 99% effective in determining a baby’s gender. 22 (Doc. No. 21 ¶¶ 35, 44, 85.) However, the shortcomings of this contention are twofold. 23 First, the Court finds that Plaintiff does not allege where the online complaints were made. 24 Thus, the Court is unable to determine if Defendant’s had notice of the complaints. See 25 Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1148 (9th Cir. 2012) (rejecting plaintiff’s 26 27                                                                   3 28 FRCP 8 states that a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). 8 15cv2945 AJB (WVG) 1 use of customer complaints as they did not indicate how the complaints were made; thus 2 there was no factual basis to conclude that the manufacturer had knowledge of a defect.) 3 Second, and most detrimental to Plaintiff is that some courts have expressed doubt that 4 customer complaints by themselves can adequately support an inference that a 5 manufacturer was aware of a defect. Id. at 1147; see Baba v. Hewlett-Packard Co., No. C 6 09-05946 RS, 2011 WL 317650, at *3 (N.D. Cal. Jan. 28, 2011) (“Awareness of a few 7 customer complaints, however, does not establish knowledge of an alleged defect.”). For 8 this reason, the Court concludes that at best the nine online customer complaints merely 9 allege that some consumers were complaining, but do not by themselves impute knowledge 10 on Defendant. 11 Thus, the Court turns to the rest of Plaintiff’s allegations to determine if Plaintiff has 12 sufficiently asserted violations of the UCL, FAL, and CLRA. As currently pled, Plaintiff’s 13 SAC in congruence with the nine online customer complaints does not adequately plead 14 how and why Defendant knew that SneakPeek was false, misleading, or deceptive. Plaintiff 15 repeatedly argues that the result of the test is not 99% accurate, but is much closer to a flip 16 of a coin. (Doc. No. 21 ¶ 17.) Plaintiff’s SAC then generically repeats the standard of law 17 for each cause of action. (Id. ¶¶ 35-36, 42, 82-85.) However, without more, Plaintiff’s bare 18 legal assertions are only “[t]hreadbare recitals of the elements of a cause of action, 19 supported by mere conclusory statements. . . .” Iqbal, 556 U.S. at 678. Moreover, without 20 an underlying factual premise that would justify Plaintiff’s alleged factual conclusion that 21 SneakPeek is not 99% accurate and that Defendant was aware of this, the SAC fails to 22 assert nothing more than an “unadorned, the-defendant-unlawfully-harmed-me 23 accusation.” Id. 24 Additionally, Plaintiff’s UCL, FAL, and CLRA claims sound in fraud, and are 25 therefore subject to the heightened pleading standard under FRCP 9(b). See Kearns v. Ford 26 Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009) (holding that Rule 9(b)’s heightened 27 pleading standards apply to claims for violations of the CLRA and UCL). FRCP 9(b) 28 requires that the facts constituting the fraud be pled with specificity. Conclusory allegations 9 15cv2945 AJB (WVG) 1 are insufficient. See Fed. R. Civ. P. 9(b); see also Moore v. Kayport Package Exp., Inc., 2 885 F.2d 531, 540 (9th Cir. 1989) (“A pleading is sufficient under Rule 9(b) if it identifies 3 the circumstances constituting fraud so that a defendant can prepare an adequate answer to 4 the allegations.”). 5 Drawing all inferences in Plaintiff’s favor, the Court is unable to conclude that 6 Plaintiff has sufficiently pled her claims for violations of the UCL, FAL, and CLRA 7 pursuant to FRCP 9(b). Plaintiff’s SAC succinctly alleges that Defendant represented that 8 the SneakPeek test had characteristics and benefits that it did not have. (Doc. No. 21 ¶ 35.) 9 Plaintiff then tersely contends that Defendant knew or should have known that Defendant’s 10 advertising was false, misleading, or deceptive. (Id. ¶ 44.) The Court notes that FRCP 9(b) 11 “does not require nor make legitimate the pleading of detailed evidentiary matter.” Walling 12 v. Beverly Enter., 476 F.2d 393, 397 (9th Cir. 1973). However, Plaintiff still must allege 13 the circumstances constituting the fraud, or the time, place, and specific content of the false 14 representations. As currently pled, Plaintiff’s SAC and its limited allegations fails to satisfy 15 this burden. 16 Accordingly, Plaintiff’s UCL, FAL, and CLRA causes of action are DISMISSED. 17 Compare Eckler v. Wal-Mart Stores, Inc., No. 12-cv-727-LAB-MDD, 2012 WL 5382218, 18 at *7 (S.D. Cal. Nov. 1, 2017) (dismissing plaintiff’s complaint as plaintiff provided no 19 factual support other than her own limited pleadings about her experience with the 20 product), with Rosales v. FitFlop USA, LLC, 11-CV-00973 W (WVG), 2012 WL 3224311, 21 at *5 (S.D. Cal. Feb. 8, 2012) (rejecting defendant’s claim that plaintiffs fail to state a UCL 22 claim because “[p]laintiffs point to several studies involving toning fitness shoes that 23 support their contention that these shoes have no beneficial effect on exercise, intensity, 24 improved muscle strength, or toning.”).4 25                                                                   26 27 28 4 The Court notes that Plaintiff opposes Defendant’s argument that she must provide scientific evidence to support her claim. (Doc. No. 37 at 27.) The Court agrees with Plaintiff that scientific evidence at the pleadings stage is not required. However, despite this, Plaintiff still fails to meet the threshold pleading requirements for her causes of action grounded in fraud. 10 15cv2945 AJB (WVG) 1 iii. Breach of Express Warranty 2 To prevail on a breach of express warranty claim, a plaintiff must allege that the 3 seller: “(1) made an affirmation of fact or promise or provided a description of its goods; 4 (2) the promise or description formed part of the basis of the bargain; (3) the express 5 warranty was breached; and (4) the breach caused injury to the plaintiff.” Rodarte v. Philip 6 Morris, Inc., No. 03-0353FMC, 2003 WL 23341208, at *7 (C.D. Cal. June 23, 2003). 7 Additionally, a buyer must also plead that notice of the alleged breach was provided to the 8 seller within a reasonable time after discovering the breach. See Pollard v. Saxe & Yolles 9 Dev. Co., 12 Cal. 3d 374, 680 (1974) (“The requirement of notice of breach is . . . designed 10 to allow the defendant opportunity for repairing the defective item, reducing damages, 11 avoiding defective products in the future, and negotiating settlements.”).5 12 The parties do not appear to contest that Defendant’s statement that SneakPeek is 13 99% effective in determining gender is a warranty that is an affirmation of fact or promise, 14 or that it is the basis of Plaintiff’s bargain. The dispute instead focuses on Defendant’s 15 contention that part of its express warranty is that a consumer may receive a full refund if 16 the test result does not match the gender of his or her newborn baby. (Doc. No. 38 at 11.) 17 As currently pled, Plaintiff’s SAC is devoid of any allegations pertaining to what the 18 express warranty of SneakPeek encompassed. For instance, based on the SAC, the Court 19 is unsure of whether Defendant’s express warranty included providing a consumer a refund 20 if her test provided an erroneous result. Moreover, Plaintiff does not allege whether or not 21 she requested or received a refund for her allegedly faulty test. Additionally, Plaintiff and 22 Defendant’s briefs in support and opposition of the motion further conflate the issue as 23 they disagree over the terms of the express warranty. (See Doc. No. 34-1 at 19-20; Doc. 24 No. 37 at 22.) Accordingly, as the Court is unable to determine at this time what the terms 25                                                                   26 27 28 5 The Court takes note that Plaintiff argues that she only need to plead the causes of action for breach of express warranty pursuant to California Civil Jury Instruction 1230. (Doc. No. 37 at 21.) Plaintiff is mistaken. Though the jury instruction may be helpful in understanding the law, it is not law. Thus, the Court declines to use the elements as pled by Plaintiff in her opposition. 11 15cv2945 AJB (WVG) 1 of the express warranty were, the Court DISMISSES Plaintiff’s claim for breach of express 2 warranty. 3 iv. Breach of Implied Warranty of Merchantability 4 Defendant argues that as there is no privity of contract between Plaintiff and 5 Defendant, Plaintiff’s claim for breach of implied warranty of merchantability must be 6 dismissed. (Doc. No. 34-1 at 20.) Plaintiff retorts that her claim falls under an exception to 7 the privity requirement. (Doc. No. 37 at 22.) 8 A plaintiff asserting breach of warranty claims must stand in vertical contractual 9 privity with the defendant. Anunziato v. eMachines, Inc., 402 F. Supp. 2d 1133, 1141 (C.D. 10 Cal. 2005). A buyer and seller stand in privity if they are in adjoining links of the 11 distribution chain. Osborne v. Subaru of Am. Inc., 198 Cal. App. 3d 646, 656 n.6 (1988). 12 However, some particularized exceptions to this general rule exists. The exception that 13 Plaintiff argues applies is one that arises when a plaintiff relies on written advertisements 14 or labels from the manufacturer. (Doc. No. 37 at 22.) 15 Unfortunately for Plaintiff, the exception she wishes to use is not applicable to her 16 implied warranty of merchantability cause of action. See Tapia v. Davol, Inc., 116 F. Supp. 17 3d 1149, 1159 (S.D. Cal. 2015) (noting that the exception where the purchaser of a product 18 relied on representations made by the manufacturer applies to an express warranty claim); 19 see also Burr v. Sherwin Williams Co., 42 Cal. 2d 682, 696 (1954) (“Another possible 20 exception . . . is found in a few cases where the purchaser of a product relied on 21 representations made by the manufacturer . . . and recovery from the manufacturer was 22 allowed on the theory of express warranty.”). Further, Plaintiff’s SAC is devoid of any 23 allegations that she and Defendant are in privity. Accordingly, Plaintiff’s claim for breach 24 of implied warranty is DISMISSED. 25 v. 26 Defendant claims that Plaintiff has failed to identify a “particular purpose” necessary 27 to sustain her claim for breach of implied warranty of fitness. (Doc. No. 34-1 at 21.) 28 Plaintiff opposes Defendant’s contentions. (Doc. No. 37 at 23.) Breach of Implied Warranty of Fitness 12 15cv2945 AJB (WVG) 1 To state a claim for breach of implied warranty of fitness, a plaintiff must allege: 2 “(1) the purchaser at the time of contracting intends to use the goods for a particular 3 purpose, (2) the seller at the time of contracting has reason to know of this particular 4 purpose, (3) the buyer relies on the seller’s skill or judgment to select or furnish goods 5 suitable for the particular purpose, and (4) the seller at the time of contracting has reason 6 to know that the buyer is relying on such skill and judgment.” Frenzel, 76 F. Supp. 3d at 7 1021. “A particular purpose differs from the ordinary purpose for which the goods are used 8 in that it envisages a specific use by the buyer which is peculiar to the nature of his business 9 . . . .” Am. Suzuki Motor Corp. v. Sup. Ct. of L.A. Cnty., 37 Cal. App. 4th 1291, 1295 n.2 10 (1995). 11 Based on the allegations in the SAC, the Court finds Plaintiff’s alleged particular 12 purpose and the ordinary purpose of the SneekPeek test to be one in the same. The Court 13 notes that Plaintiff asserts in her SAC that she purchased SneakPeek to determine the 14 gender of her baby. (Doc. No. 21 ¶ 11.) Plaintiff’s SAC then alleges that SneakPeek is 15 advertised as an early detection gender test. (Id. ¶ 9.)6 The Court finds no material 16 difference between these two purposes. Accordingly, Plaintiff’s claim for breach of implied 17 warranty of fitness is DISMISSED. See Smith v. LG Elec. U.S.A., Inc., No. C 13-4351 18 PJH, 2014 WL 989742, at *8 (N.D. Cal. Mar. 11, 2014) (“[P]laintiff has identified no 19 particular purpose for which she purchased the washing machine. She purchased it to wash 20 her laundry, which is the ordinary purpose of the washing machine.”) (internal quotation 21 marks omitted). The Court finds that any further amendment of this claim would be futile. 22 Thus, this claim is dismissed WITH PREJUDICE. See Eminence Capital, LLC v. Aspeon, 23 24 25 26 27 28                                                                   6 Plaintiff in her Opposition argues that the ordinary purpose of SneakPeek is that it is a test with the “statistical probability in correctly identifying the gender of a fetus . . . is based on laboratory testing using property collected maternal blood samples.” (Doc. No. 37 at 23.) Plaintiff then alleges her particular purpose is using this “at home” gender test based on “promised ‘99% accuracy’ of the ‘test’ which includes factors such as the portion of the test where the consumer obtains their own blood and sends it in for testing.” (Id.) The Court finds Plaintiff’s argument not only nonsensical but also unintelligible. 13 15cv2945 AJB (WVG) 1 Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). 2 vi. Fraud 3 All claims of fraud must satisfy the heightened pleading standard of FRCP 9(b). 4 Specifically, the party alleging fraud must include the “who, what, when, where, and how” 5 of the misconduct charged. Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997). 6 Defendant posits that Plaintiff’s claims of fraud are not pled with the particularity required 7 by FRCP 9(b). (Doc. No. 34-1 at 27.) The Court agrees with Defendant. 8 Under California law, the elements of a fraud claim include: (1) misrepresentation; 9 (2) knowledge of falsity; (3) intent to defraud or induce reliance; (4) justifiable reliance; 10 and (5) resulting damages. Lazar v. Sup. Ct., 12 Cal. 4th 631, 638 (1996). 11 Here, similar to Plaintiff’s claims of violations of the UCL, FAL, and CLRA, supra 12 pp. 9-10, Plaintiff’s SAC also fails to plead her fraud claim with sufficient particularity 13 pursuant to FRCP 9(b). Although Plaintiff alleges that Defendant’s advertisements about 14 the accuracy of the test were false, and that Defendant’s knew it was false, (Doc. No. 21 ¶ 15 49, 51), Plaintiff’s SAC fails to allege when she saw the allegedly fraudulent 16 advertisements, where she saw them, and under what circumstances. Similarly, Plaintiff 17 fails to provide reproductions of Defendant’s advertisements that contain the alleged 18 misrepresentations that serve as the basis of her claim. See Rosales, 882 F. Supp. 2d at 19 1175–76. Furthermore, Plaintiff’s SAC is devoid of any facts that demonstrate how 20 Defendant was aware that SneakPeek did not work as advertised, and why and how 21 Plaintiff believes SneakPeek to only be 50% effective. See Edwards v. Marin Park, Inc., 22 356 F.3d 1058, 1066 (9th Cir. 2004) (“To avoid dismissal for inadequacy under Rule 9(b),” 23 a “complaint [must] state the time, place, and specific content of the false representations 24 as well as the identities of the parties to the misrepresentation.”) (internal citation omitted). 25 Consequently, Plaintiff’s vague and limited pleadings fail to meet her burden in alleging 26 fraud with particularity and for this reason, this cause of action is DISMISSED. 27 /// 28 /// 14 15cv2945 AJB (WVG) 1 V. CONCLUSION 2 Based on the foregoing, the Court orders as follows: 3 (1) The Court DENIES Defendant’s motion to strike Plaintiff’s class definition; 4 (2) GRANTS Defendant’s motion to dismiss; and 5 (3) DENIES WITH PREJUDICE Plaintiff’s cause of action for breach of implied 6 warranty of fitness for a particular purpose. 7 Plaintiff is granted fourteen (14) days from the date of this Order to file a third amended 8 complaint correcting the deficiencies noted herein. Failure to do so will result in the Court 9 dismissing this case with prejudice. 10 11 IT IS SO ORDERED. 12 Dated: April 25, 2017 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 15cv2945 AJB (WVG)

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