United States District Court, C.D. California
HANSEN ET AL.
SCRAM OF CALIFORNIA, INC. ET AL.
Present: The Honorable CHRISTINA A. SNYDER
CIVIL MINUTES - GENERAL
(IN CHAMBERS) - DEFENDANTS' MOTION TO DISMISS (Dkt. 10,
filed March 31, 2017)
Court finds this motion appropriate for decision without oral
argument. See Fed. R. Civ. P. 78; CD. Cal. L.R.
7-15. Accordingly, the hearing date of May 1, 2017 is
vacated, and the matter is hereby taken under submission.
February 23, 2017, plaintiffs Roseanne Hansen and Jennifer Oh
filed this class action against defendants Scram of
California, Inc. ("Scram") and Alcohol Monitoring
Systems ("AMS"). Dkt. 1 ("Compl.").
Plaintiffs assert four claims: (1) violation of
California's Unfair Competition Law, Cal. Bus. &
Prof. Code §§ 17200 et seq.
("UCL"); (2) violation of California's False
Advertising Law, Cal. Bus. & Prof. Code §§
17500 et seq. ("FAL"); (3) violation of
California's Consumers Legal Remedies Act, Cal. Civ. Code
§§ 1750 et seq. ("CLRA"); and
(4) fraud, deceit, and/or misrepresentation. The gravamen of
plaintiffs' claims is that defendants mispresent the
capabilities of the transdermal alcohol monitoring devices
that AMS manufactures and Scram distributes.
March 31, 2017, Scram filed the instant motion to dismiss.
Dkt. 10 ("MTD"). On April 6, 2017, AMS filed a
notice of its joinder in Scram's motion. Dkt. 13. On
April 14, 2017, plaintiffs filed their
opposition. Dkt. 15. On April 17, 2017, defendants
filed a reply. Dkt. 17.
carefully considered the parties' arguments, the Court
finds and concludes as follows.
allege the following facts.
a nationwide provider of alcohol monitoring devices and
services to state and federal law enforcement agencies,
courts, as well as other private entities such as
rehabilitation centers. Compl. ¶ 6. Scram is a local
distributer and provider of AMS's devices and services in
California. Id. ¶ 7.
alcohol monitoring device (the "Device") is a
transdermal monitoring device that was designed to detect and
record any instances when a wearer consumes alcohol by
detecting alcohol vapors caused by ingested alcohol diffusing
through the skin. Id. ¶ 13. The Device is worn
on the user's ankle. Id. Because transdermal
alcohol monitoring measures the amount of alcohol evaporating
through the wearers' skin, the Device is inherently
susceptible to detecting "false-positive" alcohol
readings as a result of "environmental alcohol, "
i.e., alcohol vapors encountered on an everyday basis from
products including cologne, aftershave, hand sanitizer,
household cleaners, and gasoline. Id. ¶¶
20-21. Individuals who purchase defendants' alcohol
monitoring services are not made aware of the risk of
false-positive results, and defendants misrepresent this
risk. Id. ¶¶25.
provide alcohol monitoring services to individuals as part of
court mandated rehabilitation programs, as a condition of
probation or bond, or other purposes related to the criminal
justice system. Id. ¶ 14. In such cases,
individuals subject to alcohol monitoring enter into private
contracts with defendants, which charge such individuals
monthly fees. Id.¶ 15. Ordinarily, users wear the Device
at all times and remove it only once per day to connect the
Device to an internet-enabled docking station to upload the
monitoring data. Id. ¶ 17. The monitoring data
is set to AMS, which applies an algorithm to approximate the
blood alcohol content of the wearer based on the amount of
alcohol vapor detected at the skin's surface.
Id. ¶¶ 19, 37. AMS analyzes this date to
determine whether an "alcohol consumption event"
occurred. Id. ¶ 36. If AMS concludes that the
alcohol vapor readings were caused by an "alcohol
consumption event, " defendants inform the relevant law
enforcement agency or court exercising jurisdiction over the
wearer that the individual had consumed alcohol. Id.
¶ 38. However, defendants do not inform the wearer of
the Device that an "alcohol consumption event" has
occurred. Id. ¶ 39. Furthermore, the Device
does not notify wearers in real-time when it detects alcohol
vapors. Id. ¶ 40. As a result, when defendants
report an "alcohol consumption event" to a law
enforcement agency or court, customers who use the device as
a condition of their bond or probation are unable to obtain
time-sensitive evidence-e.g., a blood or breath alcohol
test-to challenge to any resulting revocation of their bond
or probation. Id. ¶¶ 41-43.
advertise the Device as a cost-effective and accurate
alternative for law enforcement agencies and courts to track
the alcohol usage of at-risk individuals, including those
charged with driving under the influence or other crimes
relating to alcohol consumption. Id. ¶ 16.
Defendants also advertise to the public and the governmental
agencies with which they seek to work that the Device can
determine the difference between alcohol vapors arising from
ingested alcohol and alcohol vapors arising from
environmental alcohol. Id.¶ 24. Defendants claim they
can distinguish between alcohol vapor readings caused by
"alcohol consumption events" and readings caused by
environmental alcohols because the rate of alcohol
dissipation is purportedly different for environmental
alcohol vapors as compared with ingested alcohol vapors.
recount two instances involving third parties in which courts
rejected results from the Device as biologically impossible
and scientifically unreliable. Id. ¶¶
27-30. Plaintiffs cite a study that concluded that the
"methodology used by AMS cannot separate ethanol from
other contaminating alcohols and therefore is not a reliable
method." Id¶31. Ingested alcohol is comprised of
ethanol. Id. Plaintiffs also contend that they
experienced false-positive results using the Device. For
example, plaintiff Hansen was arrested and charged with
driving under the influence of alcohol. Id.
¶¶ 44-47. During the course of her criminal case,
Hansen voluntarily entered herself into a residential alcohol
treatment center. Id. ¶ 47. It appears that
Hansen wore the Device while she was at the treatment
facility. Id. ¶¶ 48-49. On February 7,
2016, Hansen tested negative when she took a breathalyzer
test administered by her treatment center. Id.
¶ 50. On February 8, 2016, AMS sent a report to Scram
indicating that Hansen had consumed alcohol for a day-long
period. Id. ¶ 49. Defendants then generated a
report stating that Hansen consumed alcohol. Id.
Defendants were not aware that Hansen resided in a
rehabilitation center. Id. Scram submitted this
report to Hansen's attorney and to court. Id.
¶ 51. When Hansen's attorney notified Hansen of this
report, Hansen provided the report to her treatment facility,
where she again tested negative for alcohol consumption.
Id. Hansen subsequently visited a licensed medical
lab where her urine sample was tested for drugs and alcohol;
Hansen tested negative. Id. ¶ 52. Plaintiffs
contend that defendants falsely represented to the court,
Hansen's attorney, and Hansen that she had consumed
alcohol for hours at a time, even though Hansen