United States District Court, E.D. California
PAUL KERKORIAN, on behalf of himself and all others similarly situated, Plaintiff,
v.
SAMSUNG ELECTRONICS AMERICA, INC., Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
(DOC. NO. 13)
This
matter is before the court on a motion to dismiss brought on
behalf of defendant Samsung Electronics America, Inc.
(“Samsung” or “defendant”). (Doc. No.
13.) A hearing on the motion was held on October 2,
2018.[1] Attorney Christopher Nichols appeared
telephonically for plaintiff Paul Kerkorian, individually and
on behalf of all others similarly situated
(“plaintiff”). Attorney Michael Adams appeared
for defendant. Having reviewed the parties' briefing and
heard oral argument, and for the reasons set forth below, the
court grants defendant's motion to dismiss with leave to
amend.
BACKGROUND
Plaintiff's
first amended complaint, (Doc. No. 8 (“FAC”)),
alleges as follows. Samsung sells a line of
“smart” remotely-operable, robotic vacuum
cleaners called POWERbots. (Id. at ¶ 2.)
Plaintiff purchased a POWERbot model SR1AM7040WG on or around
January 18, 2018. (Id. at ¶ 1.) Samsung
advertises its POWERbot as “reliably” working
with Amazon's Alexa as well as iOS and Android devices
through two smartphone applications called Samsung Connect
and Smart Home (collectively referred to as the “Remote
Applications”). (Id. at ¶ 11.)
According
to plaintiff, the POWERbot does not work as advertised in
several ways. Although Samsung advertised the POWERbot as
“reliably” remotely operational through the use
of Alexa or Samsung's Remote Applications, the POWERbot
“cannot reliably connect to” and is “not
reliably remotely operable through the use of” Alexa,
“as advertised” by Samsung. (Id. at
¶¶ 16, 17.) Additionally, the POWERbot's
“remote functionality” and compatibility with
Alexa and the Remote Applications “do[] not function as
advertised by [Samsung].” (Id. at ¶¶
14-15; see also Id. at ¶ 18) (alleging that the
POWERbot devices “do not have usable Samsung Connect,
Smart Home, or Alexa features.”) Samsung's Remote
Applications also “do not save credentials for users as
advertised.” (Id. at ¶ 16.) The Remote
Applications “only work[] on certain router bands
(forcing users to change their home internet settings),
” “periodically delete[] [themselves] from the
user's mobile device, ” and do not “reliably
connect to Samsung's servers or the POWERbot device as
advertised.” (Id.) Lastly, Samsung's
“Smart Hub” product “may improve the
functionality of the POWERbot vacuums with the [Remote
Applications], ” but Samsung “does not advertise
that one needs to purchase the ‘Smart Hub' in order
to use the remote functionality features of the
POWERbot.” (Id. at ¶ 19.)
Plaintiff
filed suit on June 22, 2018. (Doc. No. 2.) In response to
this court's order to show cause why this matter should
not be dismissed for lack of jurisdiction, (Doc. No. 6),
plaintiff filed the FAC on July 3, 2018. The FAC asserts
eight causes of action: (1) False Advertising under
California Business and Professional Code § 17500
(“false advertising law”); (2) Unfair Business
Practices under California Business and Professional Code
§ 17200 (“UCL”); (3) unjust enrichment; (4)
breach of implied warranty of fitness for a particular
purpose; (5) breach of implied warranty of merchantability;
(6) negligent misrepresentation; (7) intentional
misrepresentation; and (8) strict liability. Plaintiff seeks
damages, attorneys' fees, and “an order enjoining
Defendant to repair the remote operability and compatibility
issues” with the POWERbot. (Id. at 21-22.)
LEGAL
STANDARD
The
purpose of a motion to dismiss pursuant to Rule 12(b)(6) is
to test the legal sufficiency of the complaint. N. Star
Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581
(9th Cir. 1983). “Dismissal can be based on the lack of
a cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory.”
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990). A plaintiff is required to 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 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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In
determining whether a complaint states a claim on which
relief may be granted, the court accepts as true the
allegations in the complaint and construes the allegations in
the light most favorable to the plaintiff. Hishon v. King
& Spalding, 467 U.S. 69, 73 (1984); Love v.
United States, 915 F.2d 1242, 1245 (9th Cir. 1989).
However, the court need not assume the truth of legal
conclusions cast in the form of factual allegations. U.S.
ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th
Cir. 1986). While Rule 8(a) does not require detailed factual
allegations, “it demands more than an unadorned, the
defendant-unlawfully-harmed-me accusation.”
Iqbal, 556 U.S. at 678. A pleading is insufficient
if it offers mere “labels and conclusions” or
“a formulaic recitation of the elements of a cause of
action.” Twombly, 550 U.S. at 555; see
also Iqbal, 556 U.S. at 676 (“Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”). Moreover, it
is inappropriate to assume that the plaintiff “can
prove facts which it has not alleged or that the defendants
have violated the . . . laws in ways that have not been
alleged.” Associated Gen. Contractors of Cal., Inc.
v. Cal. State Council of Carpenters, 459 U.S. 519, 526
(1983).
A
complaint alleging fraud, as does the plaintiff's, must
satisfy heightened pleading requirements. Fed.R.Civ.P. Rule
9(b) (“In alleging fraud or mistake, a party must state
with particularity the circumstances constituting fraud or
mistake.”). “Fraud can be averred by specifically
alleging fraud, or by alleging facts that necessarily
constitute fraud (even if the word fraud is not used).”
Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th
Cir. 2009) (internal quotations omitted). “When an
entire complaint, or an entire claim within a complaint, is
grounded in fraud and its allegations fail to satisfy the
heightened pleading requirements of Rule 9(b), a district
court may dismiss the complaint or claim.” Vess v.
Ciba-Geigy Corp. USA, 317 F.3d 1097, 1107 (9th Cir.
2003) (citing Bly-Magee v. California, 236 F.3d
1014, 1019 (9th Cir. 2001)).
Under
Rule 9(b), the “circumstances constituting the alleged
fraud [must] be specific enough to give defendants notice of
its particular misconduct . . . so they can defend against
the charge and not just deny that they have done anything
wrong.” Kearns, 567 F.3d at 1124 (internal
quotations omitted) (citing Bly-Magee, 236 F.3d at
1019). To satisfy the particularity standard of Rule 9(b),
the plaintiff “must set forth more than the
neutral facts necessary to identify the transaction” at
issue. Id. (internal quotations omitted) (citing
In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1548
(9th Cir. 1994) (en banc), superseded by statute on other
grounds as stated in SEC v. Todd, 642 F.3d 1207, 1216
(9th Cir. 2011)); see also Vess, 317 F.3d at 1106
(“Averments of fraud must be accompanied by the who,
what, when, where, and how of the misconduct charged.”)
(internal quotations omitted).
DISCUSSION
A.
Request for Judicial Notice
As a
preliminary matter, the court first considers defendants'
request for judicial notice. (Doc. No. 14.) Specifically,
defendant requests that judicial notice be taken of the
following documents: (1) the express warranty for the Samsung
POWERbot model (SR1AM7040WG) purchased by plaintiff, which is
available on Samsung's website; (2) plaintiff's April
16, 2018 letter to Samsung pursuant to the California Legal
Remedies Act (the “CLRA Letter”), which is
referenced by plaintiff in paragraphs 71 and 85 of the FAC;
(3) Samsung's initial response to plaintiff's CLRA
Letter, dated May 17, 2018; (4) Samsung's second response
to plaintiff's CLRA Letter, dated May 22, 2018
(collectively with Samsung's May 17, 2018 response
letter, the “CLRA Response Letters”).
(Id. at 2.)
Ordinarily,
the court considers only the complaint and attached documents
in deciding a motion to dismiss; however, the court may also
take judicial notice of matters of public record without
converting the motion into a motion for summary judgment.
Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th
Cir. 2001). Pursuant to the Federal Rule of Evidence 201(b),
a court may “judicially notice a fact that is 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).
Here,
defendant requests judicial notice “because the
viability of plaintiff's claims for breach of implied
warranties hinge on the existence and terms of the express
warranty and Samsung's efforts to honor the remedies
provided therein.” (Doc. No. 14 at 5.) The court does
not consider plaintiff's breach of implied warranty
claims substantively and therefore will not take judicial
notice of plaintiff's letter to Samsung and the CLRA
Response Letters. However, the court will take judicial
notice of the existence of Samsung's express warranty.
This express warranty is accessible on Samsung's website
and is relevant in considering defendant's motion to
dismiss plaintiff's unjust enrichment claim and request
for injunctive relief. See Datel Holdings Ltd. v.
Microsoft Corp., 712 F.Supp.2d 974, 984 (N.D. Cal. 2010)
(taking judicial notice of limited warranty and return
information, documents which were either available online or
could be obtained from purchase of the relevant product).
B.
The False Advertising Law, UCL, Misrepresentation, and Breach
of Implied Warranty Claims Fail under Rule
9(b).
First,
plaintiff asserts breach of implied warranties,
misrepresentation, and claims under the false advertising law
and UCL. Defendant argues that the allegations upon which
these claims rely fail to satisfy the requirements of Rule
9(b). As defendant puts it, plaintiff fails to identify with
particularity “(i) any statement by Samsung that he
reviewed and relied upon, much less a false one, (ii) who
made the statement(s), (iii) when ...