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Robert A. Waller, Jr., On Behalf of v. Hewlett-Packard Company

December 14, 2011


The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge


Robert Waller bought a Hewlett Packard "SimpleSave" from Costco that, he alleges, didn't work as described on the packaging. He expected the SimpleSave-a portable hard drive that plugs into a computer's USB port and backs up files automatically-to back up all of his files with no configuring on his part. Instead, it only backed up some files, which Waller learned the hard way when his computer crashed several months after he purchased the SimpleSave and his WordPerfect files were not on it. He asserts claims against HP and the retailers Costco and Staples for: (1) unfair business practices under Cal. Bus. and Prof. Code § 17200; (2) untrue and misleading advertising under Cal. Bus. and Prof. Code § 17500; and (3) violation of the California Consumers Legal Remedies Act, Cal. Civ. Code § 1750. He also brings this case as a putative class action. Now pending is Defendants' motion to dismiss.

II. Legal Standard

A rule 12(b)(6) motion to dismiss for failure to state a claim challenges the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In considering such a motion, the Court accepts all allegations of material fact as true and construes them in the light most favorable to Waller. Cedars-Sinai Med. Ctr. v. Nat'l League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007). To defeat a 12(b)(6) motion, a complaint's factual allegations needn't be detailed, but they must be sufficient to "raise a right to relief above the speculative level . . . ." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, "some threshold of plausibility must be crossed at the outset" before a case can go forward. Id. at 558 (internal quotations omitted). A claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. -, 129 S.Ct. 1937, 1949 (2009). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.

While the Court must draw all reasonable inferences in Waller's favor, it need not "necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (internal quotations omitted). In fact, the Court does not need to accept any legal conclusions as true. Iqbal, 129 S.Ct. at 1949. A complaint does not suffice "if it tenders naked assertions devoid of further factual enhancement" (Id. (internal quotations omitted)), nor if it contains a merely formulaic recitation of the elements of a cause of action. Bell Atl. Corp., 550 U.S. at 555.

III. Discussion

Defendants argue that Waller's claims must fail because the SimpleSave packaging doesn't promise what Waller says it does. It promises that the hard drive will automatically back up most, not all, files. It must be manually configured to back up certain file extensions, like WordPerfect, and Defendants argue that the SimpleSave makes this clear.

Waller's complaint alleges that the SimpleSave packaging promises a backup of both most and all files:

On the back of the packaging, Defendants make the representation to the consumer to "Just plug it in." Below the representation to the consumer to "just plug it in", are further representations by the Defendants on all the SimpleSave packaging in very small font white letters on a dark background just above five paragraphs written in French, Chinese, Japanese and Spanish, the representations that, "Yes, it's that easy! Automatic, hands-free backup. No software to install, no files to select. Frequent backup update of changed files. Back up and restore multiple computers. Automatically supports most file types." (Compl. ¶ 2.)

The Defendants represent to purchasers of the SimpleSave product that all the consumer user has to do is "just plug it in", the device has "Automatic Backup Software", "Hands Free Backup", "Plug & Play Storage", "No complicated setting" and it "finds and backs up all" the consumer's "important files" without doing anything more and "Yes, it's that easy." (Compl. ¶ 10.)

The SimpleSave packaging echoes this sentiment, claiming to provide "instant hands-free backup" in large letters in a prominent position on the SimpleSave packaging. Similarly, the packaging includes other prominent references to the products' ease, simplicity, thoroughness, completeness, and accessibility, including the representation that there is "no software to install" and "no files to select" and "automatically supports most file types" in the process of backing up files from the consumer's computer. Further, the packaging boasts the SimpleSave "finds and backs up all your important files the minute you plug it in." The device is represented to be so simple "anyone can use it" and that there is "no software to install and no files to select." (Compl. ¶ 11.)

Given the advertisements and representations made on the SimpleSave's packaging, and in-store sales displays at Costco and Staples, the reasonable consumer purchasing the device is likely to be deceived by the representations to "just plug it in", the device has "Automatic Backup Software", performs "Hands Free Backup", "Plug & Play Storage", "No complicated setting" and that "all important files" of the consumer will be saved without the consumer doing more and there are "no files to select" in order to be backed up. (Compl. ¶ 45.)

The photocopies of the SimpleSave packaging that Waller attached to his complaint support these allegations. The following representations are made on what ...

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