United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS THE THIRD AMENDED COMPLAINT Re: ECF No. 51
JON S. TIGAR, District Judge.
The Court previously dismissed the Second Amended Complaint in this action without prejudice, after concluding that Plaintiff Kathleen Haskins ("Plaintiff") had failed to state a claim and had failed to satisfy the pleading requirements of Rule 9(b) of the Federal Rules of Civil Procedure. Order Granting Motion to Dismiss the Second Amended Complaint ("Previous Order"), ECF No. 45, 2013 WL 6234610, 2013 U.S. Dist. LEXIS 169865. Plaintiff has now filed a Third Amended Complaint ("TAC"), ECF No. 47, which Defendant Symantec Corporation ("Symantec") again moves to dismiss. ECF No. 51. The Court incorporates by reference its statement of the Factual Background, Procedural History, Legal Standard and Jurisdiction from its Previous Order. Previous Order 1:15-4:18, 2013 WL 6234610, at *1-3, 2013 U.S. Dist. LEXIS 169865, 1-7.
A. Failure to Identify a Specific Representation
The Court previously dismissed Plaintiff's UCL and CLRA claims without prejudice since she failed to identify any specific representation she actually viewed. The Court gave Plaintiff leave to re-assert her UCL and CLRA claims, but ordered that, if she did, she must "(a) specifically identify an advertisement or representation which she viewed and on which she relied, and/or (b) clarify that she seeks to maintain her action on the grounds that she was exposed to a long-term advertising campaign."
At oral argument on the motion to dismiss the SAC, Plaintiff's counsel suggested that the failure to cite a specific representation was merely an oversight, and promised that Plaintiff could "readily" amend the complaint to specify the representation she actually viewed. But the TAC again lacks any allegation that Plaintiff actually viewed any representation. Instead, Plaintiff alleges conclusorily that she "relied" on a very long list of representations, and that she was "exposed to" those representations. As the Court explained in the Previous Order, under Rule 9(b), this is insufficient to plead a UCL and CLRA claim grounded in fraud. Previous Order 5:13-9:7, 2013 WL 6234610, at *4-8, 2013 U.S. Dist. LEXIS 169865, 9-18. Moreover, even if the Court were to revisit its conclusion that Plaintiff's UCL and CLRA claims sound in fraud, it would find that a claim like the one alleged in the TAC fails to state a claim, since Plaintiff has failed to allege actual reliance and causation, and therefore she cannot meet the Proposition 64-imposed standing requirements in the UCL and CLRA. See In re Tobacco II Cases , 46 Cal.4th 298, 328 (2009) ("a plaintiff must allege that the defendant's misrepresentations were an immediate cause of the injury-causing conduct").
It is plain from the numerous iterations of the complaint in this action that Plaintiff cannot allege that she saw any specific representation. Therefore, the only avenue for Plaintiff to bring a UCL or CLRA claim is under Tobacco II's narrow, but unclearly defined, exception to the individual reliance requirement for plaintiffs who allege exposure to a "long-term advertising campaign." 46 Cal.4th at 326-29.
B. Tobacco II "Long-Term Advertising Campaign"
The Court gave Plaintiff leave to bring her claim under this theory only if she could "specifically identify which representations formed part of that long-term advertising campaign at the time that she purchased the product, explain how she was exposed to that campaign at the time that she purchased the product, and allege sufficient facts regarding the scope and gravity of that campaign from which the court can determine whether it falls within the scope of Tobacco II."
Plaintiff has added to the TAC allegations regarding the scope of the advertising campaign at issue in this case. The Court finds that it does not fall within the ambit of the Tobacco II exception.
Courts applying, and declining to apply, the Tobacco II exception have emphasized several factors in determining whether the exception applies. This Court has previously identified six: "(1) [A] plaintiff must allege that she actually saw or heard the defendant's advertising campaign, " (2) "the advertising campaign at issue should be sufficiently lengthy in duration, and widespread in dissemination, that it would be unrealistic to require the plaintiff to plead each misrepresentation she saw and relied upon, " (3) "a plaintiff seeking to take advantage of the exception should describe in the complaint, and preferably attach to it, a representative sample' of the advertisements at issue, " (4) "the degree to which the alleged misrepresentations contained within the advertising campaign are similar to each other, or even identical, is also an important factor, " (5) "a complaint subject to Rule 9(b)'s requirements should plead with particularity, and separately, when and how each named plaintiff was exposed to the advertising campaign, " and (6) "the court must be able to determine when a plaintiff made her purchase or otherwise relied in relation to a defendant's advertising campaign, so as to determine which portion of that campaign is relevant." Opperman v. Path, Inc., No. 13-CV-00453-JST, 2014 WL 1973378, at *16-18, 2014 U.S. Dist. LEXIS 67225, 58-67 (N.D. Cal. May 14, 2014).
Some of the most basic factors, such as the first and the third, weigh in Plaintiff's favor. But the other factors weigh strongly against applying the Tobacco II exception. Plaintiff alleges that Defendant's advertising became misleading about the time of the alleged 2006 source code theft, and she purchased the product in 2007 or 2008. This falls well short of the "decades-long" campaign in Tobacco II, the length of which made it "unreasonable" to demand that the plaintiff identify a specific representation she actually viewed. Cf. In re Actimmune Mktg. Litig., No. 08-cv-02376-MHP , 2009 WL 3740648, at *13 (N.D. Cal. Nov. 6, 2009) aff'd, 464 F.Appx. 651 (9th Cir. 2011) (seven-year campaign not long enough for Tobacco II exception).
Plaintiff cites numerous alleged misrepresentations in the TAC, some of which were in press releases or industry documents that an average consumer would be unlikely to read. See, e.g., TAC ¶¶ 10, 14-15. The only representations it is reasonable to assume Plaintiff was exposed to appeared in popular media such as magazines and websites. Unlike the Tobacco II plaintiffs, Plaintiff fails to identify what about these representations was rendered misleading by the 2006 source code theft. ...