United States District Court, E.D. California
CLYDE GOLDEN, individually and on behalf of all others similarly situated, Plaintiff,
HOME DEPOT, U.S.A, INC., Defendant.
MEMORANDUM DECISION AND ORDER GRANTING IN PART
DEFENDANT'S MOTION TO DISMISS (ECF No. 7)
Lawrence J. O'Neill UNITED STATES CHIEF DISTRICT JUDGE.
PRELIMINARY STATEMENT TO PARTIES AND
in the Eastern District of California carry the heaviest
caseloads in the nation, and this Court is unable to devote
inordinate time and resources to individual cases and
matters. Given the shortage of district judges and staff,
this Court addresses only the arguments, evidence, and
matters necessary to reach the decision in this order. The
parties and counsel are encouraged to contact the offices of
United States Senators Feinstein and Harris to address this
Court's inability to accommodate the parties and this
action. The parties are required to reconsider consent to
conduct all further proceedings before a Magistrate Judge,
whose schedules are far more realistic and accommodating to
parties than that of U.S. District Judge Lawrence J.
O'Neill, who must prioritize criminal and older civil
trials set before Judge O'Neill trail until he becomes
available and are subject to suspension mid-trial to
accommodate criminal matters. Civil trials are no longer
reset to a later date if Judge O'Neill is unavailable on
the original date set for trial. Moreover, this Court's
Fresno Division randomly and without advance notice reassigns
civil actions to U.S. District Judges throughout the nation
to serve as visiting judges. In the absence of Magistrate
Judge consent, this action is subject to reassignment to a
U.S. District Judge from inside or outside the Eastern
District of California.
matter concerns the motion filed by Defendant Home Depot
U.S.A., Inc. (“Home Depot” or Defendant) to
dismiss or to strike portions of Plaintiff Clyde Golden's
Complaint in this case. ECF No. 7. Plaintiff's Complaint,
a putative class action, alleges various causes of action
based in fraudulent and unfair business practices in
connection with Defendant's sale of lumber as mahogany.
For the following reasons, Defendant's motion to dismiss
is GRANTED IN PART and DENIED IN PART. Defendant's motion
to strike is DENIED.
initially filed a complaint relating to Defendant's sale
of mahogany products on August 30, 2017, but voluntarily
dismissed that action on January 3, 2018. See Golden v.
Home Depot, U.S.A., Inc., No. 1:17-cv-01174-LJO-JLT, ECF
Nos. 1, 17. That case closed on January 5, 2018. Id.
at ECF No. 18. Plaintiff filed the operative Complaint as a
new case on January 5, 2018. ECF No. 1. On March 6, 2018,
Defendant moved to dismiss the Complaint. ECF No. 7.
Plaintiff filed an opposition on March 21, 2018. ECF No. 9.
Defendant filed its reply on March 28, 2018. Pursuant to
Local Rule 230(g), the Court determined the matter to be
suitable for decision on the papers, and took it under
submission on March 29, 2018. ECF No. 13.
cites in its motion to dismiss a number of documents and
websites Defendant asks the Court to consider. ECF No. 7-1 at
16-17, 21-22. Plaintiff opposes the Court's consideration
of these materials as outside the pleadings and not properly
subject to judicial notice. ECF No. 9 at 6-7. Plaintiff asks
that judicial notice not be taken, and that Defendant's
references to material outside the pleadings be struck.
Id. In the alternative, Plaintiff argues that
Defendant's request converts the motion to dismiss into a
motion for summary judgment, to which Plaintiff must be given
an opportunity to respond. Id. at 9-12.
may “take judicial notice of matters of public record
outside the pleadings” on a motion to dismiss. MGIC
Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir.
1986). A judicially noticed fact must be “not subject
to reasonable dispute because it: (1) is generally known
within the trial court's territorial jurisdiction; or (2)
can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” Fed.R.Evid.
201(b). If a court does elect to take judicial notice of
matters outside the pleadings, the parties are entitled to
receive notice of the court's intention and an
opportunity to be “heard on the propriety of taking
judicial notice and the nature of the fact to be
noticed.” Fed.R.Evid. 201(e).
Court does not believe that the facts advanced by Defendant
regarding mahogany, including its dictionary definition, are
generally known within the Eastern District of California,
and the various sources offered by Defendant are not of the
type “whose accuracy cannot reasonably be
questioned.” The Wood Database appears to be a
privately maintained source for woodworking information.
About the Project, The Wood Database,
http://www.wood-database.com/about (last visited May 25,
2018). Woodworkers Source is a website primarily
selling mahogany and other hardwoods and also hosting FAQs, a
blog, and other informational resources for lumber buyers.
Woodworkers Source, http://www.woodworkerssource.com (last
visited May 25, 2018). Defendant also references a collection of
other websites selling Santos mahogany and Red mahogany.
See ECF No. 7-1 at 22. None of these are sources
whose accuracy cannot be questioned. See Experian Info.
Solutions, Inc. v. Lifelock, Inc., 633 F.Supp.2d 1104,
1107 (C.D. Cal. 2009) (the webpage of the Governor of
Connecticut was not judicially noticeable); Ruiz v. Gap,
Inc., 540 F.Supp.2d 1121, 1124 (N.D. Cal. 2008) (webpage
containing a study on identity theft and a webpage containing
a list of reported identity theft breaches were not
judicially noticeable). Moreover, Defendant asks the Court to
take judicial notice of these sources not for the fact that
they exist, but rather as to the truth of the facts asserted
therein and as they pertain to an apparent dispute of fact.
The meaning of a disputed term in trade or common usage is
precisely the factual question that is at the heart of this
matter, that is, whether Defendant's lumber labeling
practices were false or misleading to consumers.
cites a number of cases for the proposition that courts may
look to dictionaries, trade and industry usage, and law to
determine the meaning of words. ECF No. 7-1 at 20-21. In its
reply, Defendant appears to assert that those same cases
support his argument that the Court should consider such
sources in ruling on the instant motion to dismiss. ECF No.
11 at 3. The cases Defendant cites are, however,
distinguishable from this one.
Davidson v. Kimberly-Clark Corp., 873 F.3d 1103 (9th
Cir. 2017), amended and superseded on denial of reh'g
en banc, __ F.3d___, 2018 WL 2169784 (9th Cir. May 9,
2018), the Ninth Circuit held that a complaint properly
alleged that the defendant had falsely represented their
product to be flushable, doing so in part by including in the
complaint dictionary definitions and the defendant's
statements. Id. at 1110-11. Here, Defendant asks the
Court to take notice of dictionary definitions which did not
appear in the Complaint. At the motion to dismiss stage, the
pleadings are evaluated as to whether sufficient facts, taken
as true, have been pled to state a claim. A Rule 12(b)(6)
motion is not the time or place for a defendant to rebut
factual allegations with contradictory evidence.
Wagner v. Circle W Mastiffs, Nos. 2:08-CV-00431,
2:09-CV-00172, 2014 WL 1308713 (S.D. Ohio Mar. 31, 2014), the
court considered evidence regarding American Mastiff dog
breed standards in granting a motion for summary judgment.
Id. at *20-21. Evidence provided by both parties may
properly be considered at summary judgment to determine
whether there is a genuine issue of material fact. The same
is not true at the motion to dismiss stage.
Delacruz v. Cytosport, Inc., No. C 11-3532 CW, 2012
WL 2563857 (N.D. Cal. June 28, 2012), the court referenced
federal regulatory standards and definitions to which the
plaintiff had made reference in the complaint. Id.
at *3. Plaintiff here has not referred in his complaint to
any of the sources Defendant wishes the Court to consider,
apart from Woodworker's Source. Defendant cites
to a different, unrelated section of that website than
Plaintiff, namely a listing advertising a “Genuine
Mahogany” dowel rod at a price of $22.25. ECF No. 7-1
at 17. Plaintiff, on the other hand, cited
Woodworker's Source as a reference to his
allegation that “[g]enuine Mahogany ranks among the
finest cabinetry in the world as its working characteristics
are outstanding for all woodworking processes, including
cutting, shaping, tuning, and sanding.” ECF No. 1 at
¶ 32. Plaintiff's citation to what appears to be an
informational blog maintained on a website does not open the
door to Defendant's use of unrelated portions of that
same website in presenting a motion to dismiss.
California Lettuce Growers, Inc. v. Union Sugar Co.,
45 Cal. 2d 474 (1955), concerned the application of evidence
regarding past practice between the parties to determine that
an unspecified purchase price did not render a contract void.
Id. at 482-83. The evidence of past practice was
applied by the California Lettuce Growers court to
reject a defense based on lack of mutuality and the use of
the evidence was based on a specific allegation in the
defendant's counterclaim. Id. at 482.
Here, the sources Defendant asks the Court to consider are
entirely outside of the pleadings and no allegation puts
those sources at issue, besides the previously discussed
sections of Woodworker's Source.
also argues that its failure to request by motion that the
Court take judicial notice of the external sources is not
fatal, since a court may sua sponte take judicial
notice. ECF No. 11 at 3. The Court declines to take sua
sponte notice of the sources proffered by Defendant. As
the Court has explained, the sources cited by Defendant in
its motion are not of the type whose provenance provides
assurances that the accuracy of the facts therein cannot
reasonably be questioned. Additionally, the facts Defendant
references are not generally known within the Eastern
District of California. Finally, the factual questions for
which Defendant cites the aforementioned sources are
precisely those which are disputed in this case. Conflicts of
evidence should be determined at trial, not on a motion to
dismiss. For the foregoing reasons, the Court concludes that
it is inappropriate to take notice of the documents cited by
Complaint alleges the following facts, which are accepted as
true for the purposes of the instant motion to dismiss.
Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir.
2009). Authentic mahogany is prized for its beauty,
durability, color, and ease of use in woodworking.
Id. at ¶ 30. Authentic mahogany has a
reddish-brown color, darkens over time, and displays a
reddish sheen when polished. Id. at ¶ 31. It is
used in paneling, furniture, boats, musical instruments, and
cabinetry. Id. at ¶ 31-32. Authentic mahogany
is the wood of several species of trees in the
Meliaceae family. Id. at ¶ 33.
Varieties of authentic mahogany include the type alternately
known as Dominican, Cuban, West Indian, or small-leaf
mahogany (Swietenia mahagoni), Honduran, or
large-leaf, mahogany (Swietenia macrophylla), and
Pacific Coast mahogany (Swietenia humilis).
Id. at ¶ 34
Depot operates more than 2200 stores, and also conducts
business through a website, HomeDepot.com. Id. at
¶¶ 21-22. In both the brick and mortar stores and
the online portal, Home Depot sells lumber as mahogany.
Id. at ¶¶ 28-29. Some of the wood
varieties Home Depot advertises, markets, and sells as
mahogany are species of eucalyptus from the
Myrtaceae family. Id. at ¶ 35. Home
Depot markets as mahogany the wood of Eucalyptus
rubusta trees, which is commonly known as “Swamp
mahogany.” Id. at ¶ 36. Swamp mahogany is
denser and more difficult to work with than authentic
mahogany. Id. at ¶ 38. Home Depot also markets
Ecualyptus resinifera wood as “Red
mahogany” and wood of the Myroxylon balsamum,
a tree in the Fabaceae family, as “Santos
mahogany.” Id. at ¶¶ 40, 42. Santos
mahogany is heavier than authentic mahogany and more
difficult to work with. Id. at ¶ 43.
Depot discloses the species of some types of wood that it
sells online, but does not disclose the species of its
mahogany products. Id. at ¶¶ 45, 49.
Knowing the species is important in determining the quality
of the wood, and influences factors including workability,
durability, and resistance to rot. Id. at ¶ 48.
Home Depot advertises that the mahogany board it sells online
is “premium” and “finest grade.”
Id. at ¶¶ 47, 52. The same representations
regarding mahogany products are made in brick and mortar
stores. Id. at ¶ 53. Because the species of the
wood marketed as mahogany by Home Depot is not disclosed,
consumers are led to believe that they are purchasing
authentic mahogany when they are instead buying a less
desirable type of wood. Id. at ¶ 50. Home Depot
deliberately refuses to answer questions about the species of
mahogany products posed through HomeDepot.com's
“Questions & Answers” tab. Id. at
26, 2017, Plaintiff purchased several strips of wood from a
Home Depot location on Ming Road in Bakersfield, California.
Id. at ¶ 59. The wood was sold as mahogany
board, and Plaintiff paid $3.52 per strip, plus a state
lumber fee and tax. Id. at 15 fig. 13. Unnamed
employees of Home Depot told Plaintiff that he was purchasing
“authentic, genuine mahogany.” Id. at
¶ 60. Plaintiff later tested the wood strips and learned
that they were made of Swamp mahogany. Id. at
¶¶ 61-62. Swamp mahogany is less valuable than
“genuine, authentic mahogany.” Id. at
¶ 63. Plaintiff would not have purchased the wood, or
would only have purchased it at a lower price, had he known
that it was Swamp mahogany. Id. at ¶ 71. A
consumer has no way of knowing that the mahogany marketed by
Home Depot is actually Swamp mahogany. Id. at ¶
alleges the following causes of action: (1) declaratory
judgment under 28 U.S.C. § 2201; (2) breach of the
implied covenant of good faith and fair dealing; (3)
violation of the California Consumer Legal Remedies Act
(“CLRA”), Cal. Civ. Code § 1750; (4)
violations of California's Unfair Competition Laws
(“UCL”) prohibiting unfair, (5) unlawful, and (6)
fraudulent business practices, Cal Bus. & Prof. Code
§ 17200 et seq.; (7) violation of
California's false advertising laws (“FAL”),
Cal. Bus. & Prof. Code § 17500 et seq.; (8)
negligent misrepresentation; (9) unjust enrichment; and (10)
breach of express warranty. ECF No. 1 at 1.
STANDARD OF DECISION
motion to dismiss under Federal Rule of Civil Procedure
(“Rule”) 12(b)(1) attacks the subject-matter
jurisdiction of the district court. Chandler v. State
Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1121-22 (9th
Cir. 2010). The party asserting that the district court has
jurisdiction “bears the burden of proving its
existence. Id. at 1122. “Rule 12(b)(1) attacks
on jurisdiction can be either facial, confining the inquiry
to allegations in the complaint, or factual, permitting the
court to look beyond the complaint.” Savage v.
Glendale Union High Sch., 343 F.3d 1036, 1039 n. 2 (9th
Cir. 2003) (citing White v. Lee, 227 F.3d 1214, 1242
(9th Cir. 2000). On a motion to dismiss under Rule 12(b)(1),
“a district court must accept as true all material
allegations in the complaint, and must construe the complaint
in the nonmovant's favor.” Chandler, 598
F.3d at 1121.
motion to dismiss under Rule 12(b)(6) challenges the legal
sufficiency of the opposing party's pleadings. Dismissal
of an action under Rule 12(b)(6) is proper where there is
either a “lack of a cognizable legal theory or the
absence of sufficient facts alleged under a cognizable legal
theory.” Balistreri v. Pacifica Police Dept.,
901 F.2d 696, 699 (9th Cir. 1990). When considering a motion
to dismiss for failure to state a claim under Rule 12(b)(6),
all allegations of material fact must be accepted as true and
construed in the light most favorable to the pleading party.
Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38
(9th Cir. 1996). The inquiry is generally limited to the
allegations made in the complaint. Lazy Y Ranch LTD v.
Behrens, 546 F.3d 580, 588 (9th Cir. 2008).
overcome a Rule 12(b)(6) challenge, a complaint must allege
“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). A claim is plausible
on its face when “the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A
plausible claim is one which provides more than “a
sheer possibility that a defendant has acted
unlawfully.” Id. A claim which is possible,
but which is not supported by enough facts to “nudge
[it] across the line from conceivable to plausible . . . must
be dismissed.” Twombly, 550 U.S. at 570.
complaint facing a Rule 12(b)(6) challenge “does not
need detailed factual allegations [but] a plaintiff's
obligation to provide the ‘grounds' of his
‘entitlement to relief' requires more than labels
and conclusions, and a formulaic recitation of the element of
a cause of action will not do.” Twombly, 550
U.S. 544, 555 (internal citations omitted). In essence,
“a complaint . . . must contain either direct or
inferential allegations respecting all the material elements
necessary to sustain recovery under some viable legal
theory.” Id. at 562. To the extent that any
defect in the pleadings can be cured by the allegation of
additional facts, the plaintiff should be afforded leave to