United States District Court, N.D. California
ORDER GRANTING VALERO'S MOTION TO
RICHARD SEEBORG United States District Judge.
many gas stations, defendant Valero Marketing and Supply Co.
uses “split pricing” to communicate the cost of
its gas. Split pricing is the practice of charging customers
who pay with cash one price, and those who pay with credit
cards a higher price. The Valero-brand gas station in Daly
City, California, where plaintiff Faith Bautista bought gas
did not advertise which price applied to debit-card
purchases. Bautista contends these street signs are
misleading because consumers do not know whether they will
pay the credit or cash price when using a debit card. To
remedy this alleged wrong, Bautista advances four claims for
relief on behalf of a class of people against Valero for
violations of (1) the Consumers Legal Remedies Act (the
“CLRA”), Cal. Civ. Code § 1770(a); (2) the
False Advertising Law (the “FAL”), Cal. Bus.
& Prof. Code § 17500, et seq.; (3) the
Unfair Competition Law (the “UCL”), Cal. Bus.
& Prof. Code § 17200, et seq.; and (4) for
an accounting. Valero moves to dismiss the first amended
has stated cognizable legal actions under the CLRA, FAL, and
UCL. She has not, however, included sufficient facts to
establish that Valero personally participated in the use of
the offending advertising practices or exercised unbridled
control over business practices at the Daly City station.
Because this deficiency could be cured, if relevant facts
exist, by averring Valero’s control over the unfair
conduct at issue, leave to amend will be granted. Bautista
has abandoned the accounting claim, and thus it will be
dismissed with prejudice.
is a cost-conscious consumer who checks gas prices regularly.
One day, she needed to refuel, checked the prices advertised
at various gas stations nearby, and chose a Valero-branded
gas station in Daly City because the prices advertised were
the lowest. The Daly City station advertised two prices for
gas-one for customers who pay with a credit card and one for
those who pay with cash. The sign did not provide any
information about whether customers using debit cards would
have to pay the cash price or the credit price. Bautista
believed the cash price would apply if she used her debit
card. She swiped her debit card at the point-of-sale device,
entered her zip code, and began fueling. As the machine
dispensed gas, the display did not specifically indicate
whether the credit or cash price was being applied, only the
price per gallon. Bautista requested a receipt and was
dismayed to read that Valero charged the higher credit price
and not the lower cash price on her debit card.
complaint 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). “[D]etailed
factual allegations” are not required, but “a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation marks omitted).
Rule of Civil Procedure 12(b)(6) provides a mechanism to test
the legal sufficiency of the averments in the complaint.
Dismissal is appropriate when the complaint “fail[s] to
state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). When evaluating a complaint, the court
must accept all its material factual averments as true and
construe them in the light most favorable to the non-moving
party. Iqbal, 556 U.S. at 678. “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.”
Id. This standard requires “more than a sheer
possibility that the defendant has acted unlawfully.”
Id. “Where a complaint pleads facts that are
merely consistent with a defendant’s liability, it
stops short of the line between possibility and plausibility
of entitlement to relief.” Id. (internal
quotation marks omitted). When plaintiffs have failed to
state a claim upon which relief can be granted, leave to
amend should be granted unless “the complaint could not
be saved by any amendment.” Gompper v. VISX,
Inc., 298 F.3d 893, 898 (9th Cir. 2002) (internal
quotation marks omitted).
CLRA proscribes “unfair methods of competition and
unfair or deceptive acts or practices undertaken by any
person in a transaction intended to result or which results
in the sale or lease of goods or services to any
consumer.” Cal. Civ. Code § 1770(a). Conduct
“likely to mislead a reasonable consumer”
violates the CLRA. Colgan v. Leatherman Tool Grp.,
Inc., 135 Cal.App.4th 663, 680 (2006) (internal
quotation marks omitted). A plaintiff asserting a CLRA claim
must provide facts establishing actual reliance and economic
harm. Hodsdon v. Mars, Inc., 15-CV-04450-RS, 2016 WL
627383, at *3 (N.D. Cal. Feb. 17, 2016).
prohibits “mak[ing] or disseminat[ing] . . . . any
statement . . . which is untrue or misleading, and which is
known, or which by the exercise of reasonable care should be
known, to be untrue or misleading, ” in connection with
the sale of goods. Cal. Bus. & Prof. Code § 17500.
The FAL also requires showing the plaintiff suffered an
injury due to her own actual and reasonable reliance on the
purported misleading statements. Rosado v. eBay
Inc., 53 F.Supp.3d 1256, 1266 (N.D. Cal. 2014) (citing
In re Tobacco II Cases, 46 Cal.4th 298, 326 (2009)).
UCL outlaws all unlawful, unfair, or fraudulent business acts
or practices. Cal. Bus. & Prof. Code § 17200 et
seq. “Each prong of the UCL is a separate and
distinct theory of liability . . . .” Lozano v.
AT&T Wireless Servs., Inc., 504 F.3d 718, 731 (9th
Cir. 2007). Under the unlawful prong, a plaintiff must allege
that the defendant violated another law. Accordingly, a
violation of the FAL or CLRA is a violation of the UCL. Under
the unfair prong, a plaintiff must allege facts to establish
“the practice is immoral, unethical, oppressive,
unscrupulous or substantially injurious to consumers”
or tether the UCL “to some specific constitutional,
statutory, or regulatory provisions.” Hodsdon,
2016 WL 627383, at *7 (internal quotation marks omitted).
the reasonable consumer standard of the CLRA, FAL, and UCL, a
plaintiff must show a business practice is likely to deceive
the reasonable consumer. Williams v. Gerber Prods.
Co., 552F.3d 934, 937 (9th Cir. 2008). In other words,
“these laws prohibit not only advertising which is
false, but also advertising which, although true, is either
actually misleading or which has a capacity, likelihood ...