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Azar v. Gateway Genomics, LLC

United States District Court, S.D. California

April 25, 2017

JESSICA AZAR, on behalf of herself and all others similarly situated, Plaintiff,
GATEWAY GENOMICS, LLC dba SNEAKPEEK; and DOES 1 through 20, inclusive, Defendants.


          Anthony J. Battaglia, United States District Judge

         This matter comes before the Court on Defendant Gateway Genomics, LLC's (“Defendant”) motion to dismiss and motion to strike Plaintiff Jessica Azar's[1] (“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.

         I. BACKGROUND

         The 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).

         Defendant 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.)

         Based 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. ¶ 16.)

         Plaintiff 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. ¶ 20.)


         On 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.)

         On 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.)


         A. Motion to Dismiss

         A 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).

         Notwithstanding 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).

         B. Motion to Strike

          Under 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).


         A. Plaintiff's Class Definition

         As an 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.)

         While 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 ...

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