United States District Court, S.D. California
JESSICA AZAR, on behalf of herself and all others similarly situated, Plaintiff,
GATEWAY GENOMICS, LLC dba SNEAKPEEK; and DOES 1 through 20, inclusive, Defendants.
ORDER: (1) GRANTING DEFENDANT'S MOTION TO
DISMISS; AND (Doc. No. 34) (2) DENYING DEFENDANT'S MOTION
Anthony J. Battaglia, United States District Judge
matter comes before the Court on Defendant Gateway Genomics,
LLC's (“Defendant”) motion to dismiss and
motion to strike Plaintiff Jessica Azar's
(“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 Defendant's motion to dismiss.
following facts are taken from the SAC and construed as true
for the limited purpose of resolving the pending motion.
See Moyo v. Gomez, 40 F.3d 982, 984 (9th Cir. 1994).
is a Delaware limited liability company with its principal
place of business in La Jolla, California. (Doc. No. 21
¶ 5.) One of Defendant's products is
“SneakPeek, ” which is an early detection gender
test that sells for $99.00. (Id. ¶¶ 9,
12.) Defendant advertises SneakPeek alleging that from a drop
of blood, SneakPeek can detect a baby's gender with 99%
accuracy from as early as nine weeks into a woman's
pregnancy. (Id. . ¶ 10.)
on Defendant's marketing materials, website, and claims
that it could detect a baby's gender earlier than a
sonogram and with 99% accuracy, Plaintiff purchased SneakPeek
on December 9, 2015. (Id. ¶ 11.) At the time
Plaintiff took the test, she was approximately fourteen weeks
pregnant. (Id. ¶ 13.) On December 17, 2015,
Plaintiff received an email from Defendant stating that she
would be giving birth to a baby boy. (Id. ¶
14.) However, on February 1, 2016, following a sonogram,
Plaintiffs doctor informed her that she was pregnant with a
baby girl. (Id. ¶ 15.) On June 10, 2016,
Plaintiff gave birth to a baby girl. (Id. ¶
alleges that she is not the only one to have received a false
test result. In support of this allegation, Plaintiff
provides nine online consumer complaints that refer to
SneakPeek as a “Scam, ” allege that SneakPeek is
around 60% accurate, and contend that SneakPeek is aware of
its test's inaccuracies. (Id. at 7-10.)
Plaintiff asserts that SneakPeek's reliability is more
akin to a “proverbial coin flip.” (Id.
December 29, 2015, Ms. Main filed a complaint. (Doc. No. 1.)
On February 1, 2016, Plaintiff and Ms. Main filed an amended
complaint. (Doc. No. 7.) On April 22, 2016, Defendant filed a
motion to dismiss for lack of jurisdiction, motion to dismiss
for failure to state a claim, and a motion to enforce
arbitration. (Doc. No. 12.) On August 1, 2016, the Court
granted in part Defendant's motion to dismiss for lack of
standing, dismissed Ms. Main's claim for lack of
standing, dismissed Plaintiff's claim for injunctive
relief, denied Defendant's request to compel arbitration,
and granted in part and denied in part Defendant's motion
to dismiss for failure to state a claim. (Doc. No. 20 at 32.)
September 30, 2016, Plaintiff filed her SAC. (Doc. No. 21.)
Plaintiff brings the action on behalf of herself and others
similarly situated claiming violations of: (1) the California
Unfair Competition Law (“UCL”); (2) the
California False Advertising Law (“FAL”); (3)
Fraud; (4) Breach of Express Warranty; (5) Breach of Implied
Warranty of Merchantability; (6) Breach of Implied Warranty
of Fitness; (7) Unjust Enrichment; and (8) California Civil
Code §§1750 (“CLRA”). (Id. at
14-24.) On October 14, 2016, the parties filed a joint motion
to stay the case pending settlement discussions, (Doc. No.
23), which was granted on the same day. (Doc. No. 24.) On
December 12, 2016, both parties filed a joint statement
informing the Court that the matter had not settled. (Doc.
No. 31 at 2.) On February 6, 2017, Defendant filed the
instant motion, its motion to dismiss and to strike
Plaintiff's SAC. (Doc. No. 34.)
Motion to Dismiss
motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of a plaintiff's complaint and allows a court
to dismiss a complaint upon a finding that the plaintiff has
failed to state a claim upon which relief may be granted.
See Navarro v. Block, 250 F.3d 729, 732 (9th Cir.
2001). “[A] court may dismiss a complaint as a matter
of law for (1) lack of a cognizable legal theory or (2)
insufficient facts under a cognizable legal claim.”
SmileCare Dental Grp. v. Delta Dental Plan of Cal.,
88 F.3d 780, 783 (9th Cir. 1996) (citations omitted).
However, a complaint will survive a motion to dismiss if it
contains “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). In making this
determination, a court reviews the contents of the complaint,
accepting all factual allegations as true, and drawing all
reasonable inferences in favor of the nonmoving party.
Cedars-Sinai Med. Ctr. v. Nat'l League of Postmasters
of U.S., 497 F.3d 972, 975 (9th Cir. 2007).
this deference, the reviewing court need not accept
“legal conclusions” as true. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). It is also improper for
a court to assume “the [plaintiff] can prove facts that
[he or she] has not alleged.” Associated Gen.
Contractors of Cal., Inc. v. Cal. State Council of
Carpenters, 459 U.S. 519, 526 (1983).
Motion to Strike
Rule 12 of the Federal Rules of Civil Procedure, on its own
or by motion, the court may strike from a pleading an
“insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f).
The purpose of Rule 12(f) is to “avoid the expenditure
of time and money that must arise from litigating spurious
issues by dispensing with those issues prior to trial . . .
.” Sidney-Vinstein v. A.H. Robins Co., 697
F.2d 880, 885 (9th Cir. 1983). The Court must view the
pleadings in the light most favorable to the non-moving
party, and the information will not be stricken unless it is
evident that is has no bearing on the subject matter of the
litigation. Cal. Dept. of Toxic Substances Control v.
Alco Pac., Inc., 217 F.Supp.2d 1028, 1033 (C.D. Cal.
2002). “Any doubt concerning the import of the
allegations to be stricken weighs in favor of denying the
motion to strike.” In re Wal-Mart Stores, Inc. Wage
& Hour Litig., 505 F.Supp.2d 609, 614 (N.D. Cal.
2007) (citation omitted).
Plaintiff's Class Definition
initial matter, Defendant contends that Plaintiff's class
definition is overbroad and should thus be stricken under
Federal Rule of Civil Procedure (“FRCP”) 12(f).
(Doc. No. 34-1 at 11.) In opposition, Plaintiff claims that
Defendant's motion is inappropriate at this time as
Plaintiff has not brought a motion for class certification.
(Doc. No. 37 at 11.)
the Court appreciates the ample briefing provided by both
parties on this issue, the Court agrees with Plaintiff and
finds Defendant's motion to strike Plaintiff's class
allegation to be premature. Generally, courts review class
allegations through a motion for class certification. See
Moreno v. Baca, No. CV007149ABCCWX, 2000 WL 33356835, at
*2 (C.D. Cal. Oct. 13, 2000) (finding defendants' motion
to strike the class allegation as premature because no motion
for class certification was before the court); see also
In re NVIDIA GPU Litig., No. C 08-04312 JW, 2009 WL
4020104, at *13 (N.D. Cal. Nov. 19, 2009) (“A
determination of the ascertainability and manageability of
the putative class in light of the class allegations is best
addressed at the class certification stage of
litigation.”); In re Jamster Mktg. Litig., No.
05CV0819 JM (CAB), 2009 WL 1456632, at *7 (S.D. Cal. May 22,
2009). Accordingly, at this point in the litigation, the
Court is not prepared to rule on the propriety of