Charlotte Docken v. Petmatrix, Limited Liability Company

NOTICE OF MOTION AND MOTION to Dismiss Second Amended Complaint

C.D. Cal.October 6, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 148272.00601/103627383v.1 DEFENDANT PETMATRIX LLC’S NOTICE OF MOTION AND MOTION TO DISMISS THE SECOND AMENDED COMPLAINT BLANK ROME LLP Ana Tagvoryan (SBN 246536) ATagvoryan@BlankRome.com Harrison Brown (SBN 291503) HBrown@BlankRome.com Yosef Mahmood (SBN 295976) YMahmood@BlankRome.com 2029 Century Park East, 6th Floor Los Angeles, CA 90067 Telephone: 424.239.3400 Facsimile: 424.239.3434 Attorneys for Defendant PETMATRIX LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - SOUTHERN DIVISION CHARLOTTE DOCKEN, JENNIFER JOYCE STEPHENS, individually and on behalf of all others similarly situated, Plaintiff, vs. PETMATRIX LLC, a New York limited liability company, and DOES 1-20, inclusive, Defendants. Case No. 8:16-cv-00994-AG-KES Class Action DEFENDANT PETMATRIX LLC’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT [Filed concurrently with Notice of Motion and Motion to Strike Allegations From Second Amended Complaint; Memorandum of Points and Authorities in Support Thereof] Judge: Andrew J. Guilford Event: Date: November 7, 2016 Time: 10:00 a.m. Place: Court 10D Case 8:16-cv-00994-AG-KES Document 26 Filed 10/06/16 Page 1 of 2 Page ID #:194 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 148272.00601/103627383v.1 1 DEFENDANT PETMATRIX LLC’S NOTICE OF MOTION AND MOTION TO DISMISS THE SECOND AMENDED COMPLAINT TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on November 7, 2016, at 10:00 a.m., or as soon as this matter may be heard before the Honorable Andrew J. Guilford in Courtroom 10D of the above-entitled Court located at 411 West Fourth Street, Santa Ana, California 92701, Defendant PetMatrix LLC (“Defendant” or “PetMatrix”) will and hereby does move for an order under Federal Rule of Civil Procedure 12(b)(6), dismissing the Second Amended Complaint (“SAC”) of class action plaintiffs Charlotte Docken and Jennifer Joyce Stephens (“Plaintiffs”), on the grounds that the Plaintiffs have no standing to bring their claims and have not plead their claims with the requisite level of particularity. This Motion and the accompanying Motion to Strike collectively dispose of the entire action. This motion is made following the conference of counsel pursuant to L.R. 7-3, which took place on August 11 and 12, 2016; August 22, 2016; September 9, 2016; September 12, 2016; and September 26, 2016. This Motion is based on this Notice of Motion and Motion of Defendant PetMatrix, the accompanying Notice of Motion and Motion to Strike under Federal Rules of Civil Procedure 12(f) and 23, each Motion’s supporting Memorandum of Points and Authorities, the Declaration of Yosef A. Mahmood, all pleadings and papers on file in this case, all matters of which this Court may take judicial notice, and the arguments of counsel. DATED: October 6, 2016 BLANK ROME LLP By: /s/ Yosef Mahmood Attorneys for Defendant PETMATRIX LLC Case 8:16-cv-00994-AG-KES Document 26 Filed 10/06/16 Page 2 of 2 Page ID #:195 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 148272.00601/103556001v.3 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO DISMISS BLANK ROME LLP Ana Tagvoryan (SBN 246536) ATagvoryan@BlankRome.com Harrison Brown (SBN 291503) HBrown@BlankRome.com Yosef Mahmood (SBN 295976) YMahmood@BlankRome.com 2029 Century Park East, 6th Floor Los Angeles, CA 90067 Telephone: 424.239.3400 Facsimile: 424.239.3434 Attorneys for Defendant PETMATRIX LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - SOUTHERN DIVISION CHARLOTTE DOCKEN, JENNIFER JOYCE STEPHENS, individually and on behalf of all others similarly situated, Plaintiff, vs. PETMATRIX LLC, a New York limited liability company, and DOES 1-20, inclusive, Defendants. Case No. 8:16-cv-00994-AG-KES Class Action MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT PETMATRIX LLC’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT Judge: Andrew J. Guilford Date: November 7, 2016 Time: 10:00 a.m. Place: Court 10D Case 8:16-cv-00994-AG-KES Document 26-1 Filed 10/06/16 Page 1 of 24 Page ID #:196 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 148272.00601/103556001v.3 i MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO DISMISS TABLE OF CONTENTS Page I. INTRODUCTION ................................................................................................ 1 II. SUMMARY OF PROCEDURAL HISTORY ..................................................... 2 III. SUMMARY OF RELEVANT FACTS ALLEGED IN THE FAC ..................... 3 IV. LEGAL STANDARD .......................................................................................... 5 V. THE SAC FAILS TO STATE A CLAIM ............................................................ 7 A. Plaintiff Docken Lacks Standing to Bring any of Her Asserted UCL, FAL, or CLRA Claims. .................................................................... 7 1. Plaintiff Docken Fails to Allege an Economic Injury. .................... 8 2. Plaintiff Docken Fails to Allege a Causal Connection Between PetMatrix’s Conduct and Any Resulting Harm. ............. 10 B. Plaintiffs Fail to Plead the Alleged Misrepresentations With the Requisite Particularity. ............................................................................. 11 C. Plaintiff Docken Fails to Allege an Underlying Violation for a Claim Under the UCL’s “Unlawful” Prong. ........................................... 14 D. Plaintiff Docken Fails to State a Claim Under the UCL’s “Unfair” Prong, Regardless of Which Test Applies. .............................................. 15 E. Plaintiff Stephens Cannot Bring a Cause of Action for a Violation of the Nevada Unfair Trade Practice Act. ................................................ 17 VI. CONCLUSION .................................................................................................. 18 Case 8:16-cv-00994-AG-KES Document 26-1 Filed 10/06/16 Page 2 of 24 Page ID #:197 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 148272.00601/103556001v.3 ii MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO DISMISS TABLE OF AUTHORITIES Page(s) Cases Aleksick v. 7-Eleven, Inc., 205 Cal. App. 4th 1176 (2012) ................................................................................ 15 Ashcroft v. Iqbal, 556 U.S. 662 (2009)............................................................................................... 5, 6 Balistreri v. Pacifica Police Dept., 901 F.2d 696 (9th Cir. 1990) ..................................................................................... 6 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)................................................................................................... 5 Bower v. AT&T Mobility, LLC, 196 Cal. App. 4th 1545 (2011) .............................................................................. 8, 9 Buckland v. Threshold Enterp., Ltd., 155 Cal. App. 4th 798 (2007) .................................................................................... 8 Californians for Disability Rights v. Mervyn’s LLC, 39 Cal. 4th 223 (2006) ............................................................................................... 7 Camacho v. Auto. Club of So. California, 142 Cal. App. 4th 1394 (2006) ................................................................................ 16 Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular Telephone Co., 20 Cal. 4th 163 (1999) ............................................................................................. 14 Chacanaca v. Quaker Oats Co., 752 F. Supp. 2d 1111 (N.D. Cal. 2010) ..................................................................... 7 Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242 (9th Cir. 1990) ..................................................................................... 6 Durell v. Sharp Healthcare, 183 Cal. App. 4th 1350 (2010) ................................................................................ 10 Figy v. Frito-Lay, 67 F. Supp. 3d 1075, 1088 (N.D. Cal. 2014) ........................................................... 15 Case 8:16-cv-00994-AG-KES Document 26-1 Filed 10/06/16 Page 3 of 24 Page ID #:198 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 148272.00601/103556001v.3 iii MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO DISMISS Ford v. Lehman Brothers Bank, FSB, et al., No. C 12-00842 CRB, 2012 WL 2343898 (N.D. Cal. June 20, 2012) ..................... 8 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (2000)................................................................................................... 7 George v. Morton, No. 2:06-CV-1112-PMP-GWF, 2007 WL 680789 (D. Nev. Mar. 1, 2007) ........................................................................................................................ 11 In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541 (9th Cir. 1994) (en banc) ................................................................... 12 In re Tobacco II Cases, 46 Cal. 4th 298 (2009) ............................................................................................. 10 Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir. 2009) ............................................................................. 6, 11 Kwikset Corp. v. Superior Court, 51 Cal. 4th 310 (2011) ..................................................................................... 7, 8, 10 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)................................................................................................... 7 Progressive West Ins. Co. v. Superior Court, 135 Cal. App. 4th 263 (2005) .................................................................................. 16 Quadrant Info. Servs., LLC v. LexisNexis Risk Solutions, Inc., No. C 11-6648 SBA, 2012 WL 3155559 (N.D. Cal. Aug 2, 2012) ........................ 10 Rosado v. eBay, Inc., 53 F. Supp. 3d 1256 (N.D. Cal. 2014) ..................................................................... 11 Saldate v. Wilshire Credit Corp., 711 F. Supp. 2d 1126 (E.D. Cal. 2010) ............................................................... 8, 14 Semegen v. Weidner, 780 F.2d 727 (9th Cir. 1985) ................................................................................... 11 Sigala v. CarMax Auto Superstores, LLC, No. 1:14-cv-01451-SAB, 2015 WL 418526 (E.D. Cal. Jan. 30, 2015) .................... 8 Smith v. Allstate Ins. Co., 160 F. Supp. 2d 1150 (S.D. Cal. 2001) ................................................................... 12 Case 8:16-cv-00994-AG-KES Document 26-1 Filed 10/06/16 Page 4 of 24 Page ID #:199 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 148272.00601/103556001v.3 iv MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO DISMISS Smith v. LG Elecs., USA, Inc., No. C 13-4361 PJH, 2014 WL 989742 (N.D. Cal. Mar. 11, 2014) .................. 16, 17 Smith v. State Farm Mutual Automobile Ins. Co., 93 Cal. App. 4th 700 (2001) .................................................................................... 14 Swartz v. KPMG LLP, 476 F.3d 756 (9th Cir. 2007) ............................................................................... 6, 12 Ticconi v. Blue Shield of California Life & Health Ins. Co., 160 Cal. App. 4th 528 (2008) .................................................................................. 15 TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820 (9th Cir. 2011) ..................................................................................... 7 Trazo v. Nestle Inc., 2013 U.S. Dist. LEXIS 11353 (N.D. Cal. Aug. 9, 2013) ........................................ 15 Troyk v. Farmers Group, Inc., 171 Cal. App. 4th 1305 (2009) ................................................................................ 10 Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003) ............................................................................. 6, 12 Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136 (9th Cir. 2003) ................................................................................... 6 Wood v. Motorola Mobility, Inc., No. C-11 04409-YGR, 2012 WL 892166 (N.D. Cal. Mar. 14, 2012) ...................... 5 Yanting Zhang v. Superior Court, 57 Cal. 4th 364 at n.9 (2013) ................................................................................... 15 Yumul v. Smart Balance, Inc., 733 F. Supp. 2d 1117 (C.D. Cal. 2010) ................................................................... 11 Zandian v. Margolin, No. 65205, 65960, 2015 WL 6173912 (Nev. Oct. 19, 2015) .................................. 17 Statutes Cal. Bus. & Prof. Code § 1750 ....................................................................................... 3 Cal. Bus. & Prof. Code § 17200 ........................................................................... 2, 9, 14 Cal. Bus. & Prof. Code § 17204 ............................................................................... 7, 10 Case 8:16-cv-00994-AG-KES Document 26-1 Filed 10/06/16 Page 5 of 24 Page ID #:200 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 148272.00601/103556001v.3 v MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO DISMISS Cal. Bus. & Prof. Code § 17500 ..................................................................................... 2 Cal. Health & Safety Code § 109875 ........................................................................... 14 Cal. Health & Safety Code § 110415 ........................................................................... 14 Cal. Health & Safety Code § 110674 ........................................................................... 14 Cal. Health & Safety Code § 110805 ........................................................................... 14 N.J.S.A. § 56:8-1 ............................................................................................................ 2 Nev. Rev. Stat. § 41.600 ..................................................................................... 3, 11, 17 Nev. Rev. Stat. § 41.600(3) .......................................................................................... 17 Nev. Rev. Stat. § 207.171 ............................................................................................... 3 Nev. Rev. Stat. § 598 ...................................................................................................... 3 Nev. Rev. Stat. § 598.09 ............................................................................................... 17 Nev. Rev. Stat. § 598.0915-598.0923 ........................................................................... 17 Nev. Rev. Stat. § 598.915-925 ...................................................................................... 11 Nev. Rev. Stat. § 598.0999 ........................................................................................... 17 Nev. Rev. Stat. § 598.0999(2) ...................................................................................... 17 Other Authorities Fed. R. Civ. P. 8 .............................................................................................................. 6 Fed. R. Civ. P. 8(a) ......................................................................................................... 5 Fed. R. Civ. P. 9(b) ................................................................................... 2, 6, 11, 12, 13 Fed. R. Civ. P. 12(b)(6) .................................................................................................. 6 Fed. R. Civ. P. 23 ............................................................................................................ 5 Prop. 64 § 1(b)(3)) .......................................................................................................... 7 U.S. Const. Art. III .......................................................................................................... 7 Case 8:16-cv-00994-AG-KES Document 26-1 Filed 10/06/16 Page 6 of 24 Page ID #:201 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 148272.00601/103556001v.3 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO DISMISS MEMORANDUM I. INTRODUCTION Plaintiffs Charlotte Docken and Jennifer Joyce Stephens have twice amended the complaint but still fail to assert cognizable claims for violation of California and Nevada consumer fraud statutes. Indeed, even after extensive meet and confer discussions regarding the previous two iterations of the complaint, Plaintiff Docken still fails to establish standing to assert violations of the California consumer fraud statutes because she fails to allege any economic injury or that the alleged misrepresentations caused any such injury. Plaintiff Stephens’ assertion of the Nevada Unfair Trade Practice Act fails because the statute does not allow for a private cause of action. And even if there was standing on the part of these Plaintiffs, the claims still fail because Plaintiffs cannot plead with sufficient particularity the alleged misrepresentation that supports their claims. The inherent inconsistencies and generalities compel dismissal of the Second Amended Complaint (“SAC”) without further leave to amend. Defendant PetMatrix LLC (“PetMatrix”) is a pet products company specializing in non-rawhide pet chew products for dogs. PetMatrix has spent years creating a line of dog chew products that offer a healthy alternative to rawhide dog chews, and now produces a number of products under its DreamBone and SmartBones brands. Plaintiffs take issue with a particular DreamBone brand product (the “Product”), although the actual product is not identified. Plaintiffs’ claims are confusingly based on one of two alleged misrepresentations, though it is not clear which: (1) a statement that the Product is 99% digestible; or (2) a picture of a small dog on the package, allegedly implying that the Product is safe for small dogs to ingest.1 Because Plaintiffs’ claims are based upon fraud, Plaintiffs must plead the misrepresentation and their reliance and damages with specificity so that Defendant 1 Plaintiffs’ allegations are pled so vaguely that it is impossible to determine if either or both alleged misrepresentations serve as the basis of Plaintiffs’ claims. Case 8:16-cv-00994-AG-KES Document 26-1 Filed 10/06/16 Page 7 of 24 Page ID #:202 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 148272.00601/103556001v.3 2 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO DISMISS can marshal the evidence to defend the claims. However, Plaintiffs completely fail to plead any of their claims with the level of specificity required by Rule 9(b). Consequently, PetMatrix is left without a clear understanding of the “who, what, where, when, and how” of any alleged misrepresentation. For example, Plaintiff Docken fails to state whether she relied upon or even observed either of the alleged misrepresentations before purchasing the Product, and further fails to state how any alleged misrepresentations are false. Because the statements on the label are concrete with respect to the nature of the product, Plaintiff should be able to reciprocate the specificity with respect to the falsity or deception that she alleges. What is more, Plaintiff Stephens fails to state when she purchased the Product, where she purchased the Product, and-like Plaintiff Docken-any facts demonstrating how the alleged misrepresentations are false. For these reasons, all of Plaintiffs’ claims in the SAC should be dismissed. Because Plaintiffs have three times tried and failed to state legally cognizable claims, every one of Plaintiffs’ claims should be dismissed without leave to amend. II. SUMMARY OF PROCEDURAL HISTORY On May 28, 2016, Plaintiff Docken filed a complaint (“Complaint”) in the Central District of California alleging claims against PetMatrix under California’s Unfair Competition Law, California Business and Professions Code Section 17200 et seq. (“UCL”), California’s False Advertising Law (“FAL”), California Business and Professions Code Section 17500 et seq., and the New Jersey Consumer Fraud Act, New Jersey Statute 56:8-1 et seq. After counsel for PetMatrix met and conferred with counsel for Plaintiff Docken regarding a number of issues with the initial Complaint, including standing issues, inadequate pleading of causation, and inadequate pleading of misrepresentation, Plaintiff’s counsel agreed to amend the complaint. (Declaration of Yosef M. Mahmood (“Mahmood Decl.”) ¶¶ 3-6, Exs. A-C.) On September 2, 2016, Plaintiff Docken filed a First Amended Complaint adding a Nevada Plaintiff, Plaintiff Stephens, causes of action on behalf of Plaintiff Case 8:16-cv-00994-AG-KES Document 26-1 Filed 10/06/16 Page 8 of 24 Page ID #:203 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 148272.00601/103556001v.3 3 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO DISMISS Docken and the putative California class for alleged violations of the Consumer Legal Remedies Act (“CLRA”) and California Business and Professions Code Section 1750, and a cause of action on behalf of Plaintiff Stephens and the putative Nevada class for alleged violations of the Nevada Unfair Trade Practice Act (“NUTPA”), Nevada Statute 598 et seq. On September 18, 2016, Plaintiffs filed the SAC, removing their New Jersey cause of action and their nationwide class allegations and replacing one inappropriate Nevada public cause of action (Nevada Statute 207.171) with the Nevada Deceptive Trade Practices Act, Nevada Statute 41.600, but leaving the other Nevada public cause of action (NUTPA).2 III. SUMMARY OF RELEVANT FACTS ALLEGED IN THE FAC Plaintiff Docken is a resident of Orange, California and alleges that she purchased “Dream Bone” brand dog chews (the “Product”) from a Walmart store in California on December 4, 2015. (SAC ¶¶ 11, 14.) Plaintiff Stephens is a resident of Clark County, Nevada, and alleges that she purchased “multiple variations” of the Product multiple times, but does not allege any specific purchase date or the specific variations of the product. (Id. ¶¶ 12, 14.) This is crucial because there are more than twenty different items sold under the “DreamBone” brand on the market, including Classic Bone Chews, Butcher’s Cut Long-Lasting Chews, Stuffed Twistz Chews, and DinoChews. Plaintiffs allege that the Product has a uniform label stating, “99 percent digestible.” (Id. ¶ 40.) Plaintiffs contend that the Product is mislabeled because it contains a “large amount of indigestible ingredients” (id. ¶ 41) including sorbitol, the 2 For purposes of clarity, references to Plaintiffs’ UCL claims are to the First, Second, and Third causes of action for violations of the Unfair, Unlawful, and Fraudulent prongs of the UCL. References to Plaintiffs’ FAL claims are to the Four and Fifth causes of action for misleading and untrue advertising. References to Plaintiffs’ CLRA claim are to the Sixth cause of action. References to the Nevada Deceptive Trade Practices Act is to the Seventh cause of action. Finally, references to the NUTPA claim are to the Eighth cause of action. Case 8:16-cv-00994-AG-KES Document 26-1 Filed 10/06/16 Page 9 of 24 Page ID #:204 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 148272.00601/103556001v.3 4 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO DISMISS third listed ingredient, which Plaintiffs alternatively claim is either “indigestible” (id. ¶ 43) or that they are informed and believe is “partially or completely indigestible” (id. ¶ 3).3 Notably, Plaintiffs never allege that the “large amount of indigestible ingredients” or the sorbitol account for more than 1% of the Product, or that a “large amount” somehow negates the 99% digestibility representation. Further, Plaintiff Docken never alleges seeing the “99 percent digestible” statement prior to purchasing the Product, nor does she allege that she purchased the Product because of this statement. Additionally, Plaintiff Stephens alleges that the Product’s package “showed a picture of a small dog on the front of the packaging, implying that it was safe for small dogs to ingest, and was digestible.” (Id. ¶ 54.) But that allegation itself means nothing for Plaintiffs’ claims. Neither Plaintiff claims to have seen this picture prior to purchasing the Product, nor do they claim that they bought the Product because of this picture. Additionally, neither Plaintiff claims to own a small dog, or even that any of the ingredients or their composition is somehow unfit for a small dog. Damages allegations are similarly lacking. Neither Plaintiff alleges how much she paid for the Product. Neither Plaintiff alleges that she would have purchased a competitor’s product if the Product had a different representation or picture, nor does she allege a comparable price for any such competitor’s product. Finally, neither 3 Plaintiffs’ claims regarding sorbitol completely lack merit as sorbitol is actually a digestible sugar alcohol found in many fruits. It also serves as a source of calories to the animal, and it constitutes less than 10% of the total weight of the raw materials used to make the Product. No reasonable or qualified expert will disagree that Sorbitol is digestible and that mammals have metabolic pathways and specific enzymes to utilize Sorbitol as a nutrient. Moreover, Sorbitol’s function in the product is not as a laxative. Rather, it is used as a plasticizing agent to make the simulated rawhide and dried chicken components more flexible and capable of being folded. Case 8:16-cv-00994-AG-KES Document 26-1 Filed 10/06/16 Page 10 of 24 Page ID #:205 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 148272.00601/103556001v.3 5 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO DISMISS Plaintiff alleges that she would have paid less for the Product if it had a different label, or that she would have not purchased it at all.4 Plaintiffs seek to represent two classes of purportedly similarly-situated consumers of the Product (though again, Plaintiffs do not specify the particular variation of the Product purchased by putative class members). The first class is comprised of “[a]ll persons who, between May 28, 2012 and the present, purchased one or more containers of ‘Dream Bone’ in California” (the “California Class”). (SAC ¶ 19.) The second class is comprised of “[a]ll persons who, between May 28, 2012 and the present, purchased on or more containers of ‘Dream Bone’ in Nevada” (the “Nevada Class”). (SAC ¶ 20.) As discussed in Defendants’ concurrently filed Motion to Strike, however, Plaintiffs’ class allegations should be stricken because the SAC also fails to allege facts that, if true, would satisfy the Fed. R. Civ. P. 23 requirements for certification. IV. LEGAL STANDARD A complaint will not survive a motion to dismiss unless the plaintiff has pled “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678-679 (2009). A sufficient complaint “demands more than an unadorned, the-defendant- unlawfully-harmed-me accusation.” Id. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.; Wood v. Motorola Mobility, Inc., No. C-11 04409-YGR, 2012 WL 892166, at *3 (N.D. Cal. Mar. 14, 2012) (allegation that “simply parrots the language of the statute . . . fails to meet the Twombly/Iqbal standard”). After stripping away such conclusory assertions, the remaining factual allegations must “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. 4 Indeed, the percentage digestibility of the dog chew products of Defendants’ closest competitors is only in the mid-80s. DreamBone products thus are still far more digestible than other comparable products in the market. Case 8:16-cv-00994-AG-KES Document 26-1 Filed 10/06/16 Page 11 of 24 Page ID #:206 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 148272.00601/103556001v.3 6 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO DISMISS Twombly, 550 U.S. 544, 555 (2007); see also Fed. R. Civ. P. 8(a). A court need not “assume the truth of legal conclusions merely because they are cast in the form of factual allegations.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). Determining whether a complaint states a plausible claim of relief is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. See Iqbal, 556 U.S. at 679. Here, the context within which the SAC must be viewed is that of mislabeling and fraud claims, which subjects the SAC to the heightened pleading standard of Federal Rule of Civil Procedure 9(b). See Kearns v. Ford Motor Co., 567 F.3d 1120, 1124- 25 (9th Cir. 2009) (stating that, “when fraud is alleged, ‘a party must state with particularity the circumstances constituting fraud’” and applying Rule 9(b) to the CLRA and UCL). The SAC must be “specific enough to give defendants notice of the particular misconduct,” including “the who, what, when, where, and how of the misconduct charged.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (internal quotation marks omitted); see also Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (Rule 9(b) “requires more specificity [than Rule 8,] including an account of the ‘time, place, and specific content of the false representations as well as the identities of the parties.”). Dismissal under Federal Rule of Civil Procedure 12(b)(6) is proper where, as here, there is 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). Dismissal without leave to amend is appropriate where, also as here, proposed amendments would fail to cure the pleading deficiencies and amendment would be futile. See Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990) (per curium). \\\ Case 8:16-cv-00994-AG-KES Document 26-1 Filed 10/06/16 Page 12 of 24 Page ID #:207 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 148272.00601/103556001v.3 7 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO DISMISS \\\ \\\ \\\ V. THE SAC FAILS TO STATE A CLAIM A. Plaintiff Docken Lacks Standing to Bring any of Her Asserted UCL, FAL, or CLRA Claims. An Article III federal court must ask whether a plaintiff has suffered sufficient injury to satisfy the “case or controversy” requirement of Article III of the U.S. Constitution. To satisfy Article III standing, a plaintiff must allege: (1) an injury in fact that is concrete and particularized, as well as actual and imminent; (2) that the injury is fairly traceable to the challenged action of the defendant; and (3) that it is likely (not merely speculative) that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992). The UCL incorporates Article III standing, and further requires that plaintiff plead an economic injury. Kwikset Corp. v. Sup. Ct., 51 Cal. 4th 310, 322-23 (2011) (citing Californians for Disability Rights v. Mervyn’s LLC, 39 Cal. 4th 223, 228, (2006) (quoting Prop. 64 § 1(b)(3)); see also TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 825 n.1 (9th Cir. 2011) (“Plaintiff filing an unfair competition suit must prove a pecuniary injury . . . and ‘immediate’ causation . . . Neither is required for Article III standing.” (internal citations omitted)). Proposition 64, codified in California Business and Professions Code Section 17204, was enacted in 2004 as a means of confining UCL standing to those actually injured by a defendant’s business practices and curtailing the prior practice of filing suits on behalf of clients who have not used the defendant’s product or service, viewed the defendant’s advertising, or had any other business dealing with the defendant. See Kwikset, 51 Cal. 4th at 321. Case 8:16-cv-00994-AG-KES Document 26-1 Filed 10/06/16 Page 13 of 24 Page ID #:208 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 148272.00601/103556001v.3 8 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO DISMISS Under the UCL, plaintiff suffers an injury-in-fact when she has “(1) expended money due to the defendants’ acts of unfair competition; (2) lost money or property; or (3) been denied money to which he has a cognizable claim.” Chacanaca v. Quaker Oats Co., 752 F. Supp. 2d 1111, 1125 (N.D. Cal. 2010). The standing limitations of the UCL apply equally to the FAL. Kwikset Corp., 51 Cal. 4th at 321-22; see also Buckland v. Threshold Enterp., Ltd., 155 Cal. App. 4th 798, 819 (2007) (“As amended, [Proposition 64] permits an individual to assert a claim under the FAL only if he or she ‘has suffered injury in fact and has lost money or property as a result of such unfair competition.’) (disapproved on other grounds by Kwikset Corp. v. Superior Court, 51 Cal. 4th at 321). The CLRA similarly has a causation requirement that a plaintiff must satisfy in order to have standing to assert a violation of the statute. See Sigala v. CarMax Auto Superstores, LLC, No. 1:14-cv-01451-SAB, 2015 WL 418526, at * (E.D. Cal. Jan. 30, 2015) (“Both the CLRA and UCL require that a plaintiff have actual injury caused by the unlawful practice to bring a claim.”); accord Bower v. AT&T Mobility, LLC, 196 Cal. App. 4th 1545, 1556 (2011) (“[P]laintiffs in a CLRA action [must] show not only that a defendant’s conduct was deceptive but that the deception caused them harm.” (internal quotation marks omitted) (second alteration in original)). Plaintiff Docken’s California claims must be dismissed with prejudice because the allegations in the SAC confirm that Plaintiff Docken has not suffered an economic injury and that no conduct of PetMatrix has caused her harm of any kind. 1. Plaintiff Docken Fails to Allege an Economic Injury. Plaintiff Docken’s failure to allege any facts describing any money or property she allegedly lost as a result of PetMatrix’s alleged conduct is fatal to her UCL and FAL claims. See Saldate v. Wilshire Credit Corp., 711 F. Supp. 2d 1126, 1137 (E.D. Cal. 2010); Ford v. Lehman Brothers Bank, FSB, et al., No. C 12- 00842 CRB, 2012 WL 2343898, at *8 (N.D. Cal. June 20, 2012). Federal courts in the Ninth Circuit routinely dismiss UCL and FAL claims where, as here, a Case 8:16-cv-00994-AG-KES Document 26-1 Filed 10/06/16 Page 14 of 24 Page ID #:209 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 148272.00601/103556001v.3 9 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO DISMISS plaintiff fails to allege the loss of money or property as a result of the claimed unfair competition. See, e.g., Saldate, 711 F. Supp. 2d at 1137 (granting a motion to dismiss for lack of standing where UCL “claim offers an insufficient, bare allegation that ‘Plaintiff has suffered various damages and injuries according to proof at trial’”); Ford, 2012 WL 2343898, at *8 (granting a motion to dismiss for lack of standing because the plaintiff “fail[ed] to alleged any injury in connection with the alleged Section 17200 violation . . . let alone facts describing loss of money or property”). The SAC is wholly devoid of any allegations of specific loss of money or property tied to the alleged misrepresentations. In particular, Plaintiff Docken does not allege the price she paid for the allegedly “illegal product,” does not allege that she would not have purchased the Product if it were labelled differently, does not allege the cost of any competitor’s product that she would have instead purchased but for the alleged misrepresentation, and does not allege that she paid more for the allegedly “illegal product” in comparison to any other competitor’s product, such as a competitor’s dog chew that was similarly labelled. See Bower, 196 Cal. App. 4th at 1555 (alleged misrepresentations by the defendant that the tax it charged for the undiscounted price of the phone purchased by the plaintiff was mandatory when it was in fact discretionary was insufficient to state an injury-in-fact, where the plaintiff did not also allege that she could have obtained the phone for a lower amount from a retailer who did not charge the discretionary tax or that she would not have purchased the phone at all). Plaintiff Docken thus alleges no economic injury.5 Because this is her third amendment following multiple meet and 5 While Plaintiff Docken does allege that her dog had to have surgery to remove an obstruction that “matched the description of the Dream Bone [product],” she does not allege that the obstruction was, in fact, the DreamBone product; nor does she describe a causal connection above a speculative level. (SAC ¶ 48). Further, as discussed in Defendants’ Motion to Strike, Plaintiff Docken’s speculative allegations about what Case 8:16-cv-00994-AG-KES Document 26-1 Filed 10/06/16 Page 15 of 24 Page ID #:210 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 148272.00601/103556001v.3 10 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO DISMISS confer discussions, her claims should be dismissed without further consideration. 2. Plaintiff Docken Fails to Allege a Causal Connection Between PetMatrix’s Conduct and Any Resulting Harm. Plaintiff Docken’s UCL, FAL, and CLRA claims should be dismissed for the additional and independent reason that she has failed to plead facts establishing a causal connection between any alleged misrepresentation by PetMatrix and any resulting alleged injury (as detailed above, there is none). “To satisfy the narrower standing requirements imposed by Proposition 64, a party must (1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact . . . and (2) show that that economic injury was the result of, i.e., caused by, the unfair business practice . . .” Kwikset, 51 Cal. 4th at 322 (emphasis added); see also Troyk v. Farmers Group, Inc., 171 Cal. App. 4th 1305, 1348 (2009) (“[T]he phrase ‘as a result of’ connotates an element of causation (i.e., [Plaintiff Docken] lost money because of [Defendant’s] unfair competition).”); Quadrant Info. Servs., LLC v. LexisNexis Risk Solutions, Inc., No. C 11-6648 SBA, 2012 WL 3155559, at *3 (N.D. Cal. Aug 2, 2012) (“The ‘as a result of’ language in § 17204 imposes a causation requirement.”); In re Tobacco II Cases, 46 Cal. 4th 298, 328 (2009) (“Plaintiff must allege that the defendant’s misrepresentations were an immediate cause of the injury-causing conduct.”). Plaintiff Docken thus must allege “that . . . she would not have bought the product but for the alleged misrepresentation.” Kwikset, 51 Cal. 4th at 330; see also Durell v. Sharp Healthcare, 183 Cal. App. 4th 1350, 1363 (2010) ([T]he ‘as a result of’ language ‘imposes an actual reliance requirement on the plaintiffs prosecuting a private enforcement action.’”). She does not. might have happened to her dog, among others, should be stricken, as they have no bearing on this action. Case 8:16-cv-00994-AG-KES Document 26-1 Filed 10/06/16 Page 16 of 24 Page ID #:211 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 148272.00601/103556001v.3 11 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO DISMISS Plaintiff Docken does not allege that she relied on the label she now claims is misleading when purchasing the Product. In fact, in contrast to Plaintiff Stephens, Plaintiff Docken never alleges that she even saw the 99% label prior to purchasing the Product. Nor does she allege that the 99% digestibility representation was a material part of her purchase decision, such that any less amount (i.e., 98% or 95%) would not have led her to purchase the Product. The claims are missing too many links, and under well-established case law, Docken cannot maintain a cause of action under the UCL, FAL, or CLRA. \\\ B. Plaintiffs Fail to Plead the Alleged Misrepresentations With the Requisite Particularity. Each of Plaintiffs’ claims should be dismissed for the independent reason that Plaintiffs have failed to plead them with the requisite particularity. California courts have routinely held that claims brought under the UCL, CLRA, [etc.] are fraud-based claims and are subject to the heightened pleading requirements of Federal Rule of Civil Procedure 9(b). See Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009) (“[W]e have specifically ruled that Rule 9(b)’s heightened pleading standards apply to claims for violations of the CLRA and UCL.”); Rosado v. eBay, Inc., 53 F. Supp. 3d 1256, 1265 (N.D. Cal. 2014) (“Rule 9(b)’s particularity requirement applies to each of the three prongs of the UCL (‘unlawful,’ ’unfair,’ and ‘fraudulent’) where, as here, the claims are based on a ‘unified course of fraudulent conduct.’”); Yumul v. Smart Balance, Inc., 733 F. Supp. 2d 1117, 1122-23 (C.D. Cal. 2010) (“District courts in California have consistently held . . . that claims under California’s FAL are grounded in fraud [and subject to Rule 9(b).]”). Nevada courts have similarly applied Rule 9(b) requirements to consumer fraud claims under Nevada statutes, including to claims under the Nevada Deceptive Trade Practices Act. See George v. Morton, No. 2:06-CV-1112-PMP-GWF, 2007 WL 680789, at *11 (D. Nev. Mar. 1, 2007) (applying the heightened pleading standards of Rule 9(b) to a claim under Nevada Case 8:16-cv-00994-AG-KES Document 26-1 Filed 10/06/16 Page 17 of 24 Page ID #:212 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 148272.00601/103556001v.3 12 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO DISMISS Revised Statute § 41.600 based on alleged “consumer fraud” as defined by Nevada Revised Statute §§ 598.915-925). A plaintiff alleging fraud “must state with particularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b). The allegations must be “specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong.” Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985). To that end, the allegations must contain “an account of the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations.” Swartz, 476 F.3d at 764 (citation omitted). Averments of fraud must be accompanied by the “who, what, when, where, and how” of the misconduct charged. Vess, 317 F.3d at 1106 (citation omitted). Additionally, “the Plaintiff must plead facts explaining why the statement was false when it was made.” Smith v. Allstate Ins. Co., 160 F. Supp. 2d 1150, 1152 (S.D. Cal. 2001); see also In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1549 (9th Cir. 1994) (en banc) (superseded by statute on other grounds). Plaintiffs’ factual allegations regarding the allegedly false statements on the Product’s packaging are entirely inadequate to satisfy Rule 9(b)’s heightened pleading requirement.6 Plaintiffs appear to allege two potential misrepresentations: The first, which appears to be basis for Plaintiffs’ claims, is that “[t]he Product has borne a uniformly-worded label as ‘99 percent digestible.’” (SAC ¶ 40.) But Plaintiffs never allege that this is a false statement, let alone how it is a false statement. Instead, Plaintiffs allege only that the Product “contained a large amount of indigestible ingredients” and that sorbitol, which Plaintiffs allege is indigestible, is the third listed ingredient on the packaging. (Id. ¶¶ 42-43 (emphasis added).) 6 Plaintiffs’ pleading includes a photograph of one bag of the Product and alleges that Plaintiff Stephens purchased that particular Product from, among other places, Target. This is impossible; the Product pictured is and was only ever sold at Wal-Mart stores. Case 8:16-cv-00994-AG-KES Document 26-1 Filed 10/06/16 Page 18 of 24 Page ID #:213 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 148272.00601/103556001v.3 13 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO DISMISS However, neither the term “large” nor the inclusion of sorbitol as the third-listed ingredient indicates whether the “indigestible ingredients” make up more than 1% of the Product such that the label “99 percent digestible” is false. The second alleged misrepresentation appears to be that there is “a picture of a small dog on the front of the [Product] packaging, implying that it was safe for small dogs to ingest, and was digestible.” (Id. ¶ 54.) But again, Plaintiffs never allege that the image in and of itself is a false representation, nor do they allege facts explaining how it is false. And even assuming this picture, without more, could be found to be a “representation” within the meaning of the allegedly violated statutes, neither Plaintiff alleges that her dog that ingested the Product is a “small dog” and that she based her purchase decision on the belief that the Product was safe for a small dog to ingest and digest. (Id. ¶¶ 47, 52.) Indeed, Plaintiffs make no other allegations that the Product is not safe for small dogs to digest. Moreover, it is not at all clear from Plaintiffs’ vaguely worded SAC whether they mean to allege this as the sole basis for any of their claims, instead of the “99 percent digestible” label, whether they mean to allege it as an additional basis, or whether it is not meant to be a basis of the claims at all. In addition to these failures, Plaintiffs also fail to allege when the alleged misrepresentation occurred. Plaintiff Docken does not allege that she saw either the “99 percent digestible” label or the small dog on the package prior to purchasing the Product, or that she relied on either alleged misrepresentation when making her purchase. Indeed, it is entirely unclear when Plaintiff Docken first noticed either of the alleged misrepresentations.7 Even more problematic, Plaintiff Stephens fails to allege on what date she made any purchase of the Product. Like Docken, she also does not allege whether she saw the small dog on the package prior to purchasing the 7 Indeed, with each amendment of the Complaint, Docken changed the purchase date of the product at issue. In the original complaint, she alleged a purchase date of December 4, 2016 (Compl. ¶ 13); in the First Amended Complaint, she alleged a date of December 4, 2011 (FAC ¶ 14), and in the SAC she alleges a date of December 4, 2015 (SAC ¶ 14). Case 8:16-cv-00994-AG-KES Document 26-1 Filed 10/06/16 Page 19 of 24 Page ID #:214 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 148272.00601/103556001v.3 14 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO DISMISS Product, or whether she relied on this alleged misrepresentation when making her purchase. Plaintiff Stephens further fails to allege where, specifically, she purchased the Product, instead only vaguely alleging that she purchased it multiple times, “including but not limited to from Target locations.” (Id. ¶ 14.) Plaintiffs’ failure to plead their fraud-based claims with Rule 9(b)’s requisite level of particularity compels dismissal of their causes of action. \\\ \\\ \\\ C. Plaintiff Docken Fails to Allege an Underlying Violation for a Claim Under the UCL’s “Unlawful” Prong. To state a claim for an “unlawful” business practice under California’s Unfair Competition Law, a plaintiff must assert the violation of another law. Where a plaintiff cannot state a claim under the “borrowed” law, she cannot state a UCL claim either. See, e.g., Saldate v. Wilshire Credit Corp., 711 F. Supp. 2d 1126, 1138 (E.D. Cal. 2010) (citing Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular Telephone Co., 20 Cal. 4th 163 (1999) and Smith v. State Farm Mutual Automobile Ins. Co., 93 Cal. App. 4th 700 (2001)). Here, Plaintiff Docken’s claim under the UCL’s “unlawful” prong is fatally defective because she fails to allege a violation of any underlying law. Plaintiff Docken only conclusorily alleges that “Defendants’ business practices . . . are unlawful under section 172000 . . . by virtue of Defendants’ violations of the advertising provisions of Article 3 of the [Sherman Food Drug & Cosmetic Law, California Health and Safety Code § 109875 et seq. (the “Sherman Law”)] and the misbranded food provisions of Article 6 of the Sherman Law.” (SAC ¶ 61.) Article 3 consists of ten separate code sections. Article 6 consists of thirty-one separate code sections. Yet Plaintiff Docken does not cite any specific section of either Article 3 or Article 6 of the Sherman Law that Defendant purportedly violated, many of which are Case 8:16-cv-00994-AG-KES Document 26-1 Filed 10/06/16 Page 20 of 24 Page ID #:215 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 148272.00601/103556001v.3 15 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO DISMISS wholly inapplicable. See, e.g., Cal. Health & Safety Code § 110674 (stating that any food “is misbranded if its labelling does not conform with the requirements for pasteurized in-shell egg labelling”); Cal. Health & Safety Code § 110415 (“It shall be unlawful to advertise or otherwise represent chopped or ground beef or hamburger in violation of Section 110805.”). This wholesale pleading failure renders it impossible to know what Plaintiff Docken is actually claiming. Where a plaintiff fails to allege specific statutory violations or the specific section violated, the statutory claim fails. See Saldate, 711 F. Supp. 2d at 1132 (“Moreover, the claim is doomed with failure to allege specific [Rosenthal Fair Debt Collection Practices Act (‘RFDCPA’)] violations or violated RFDCPA section.”). Moreover, even assuming Plaintiff Docken could adequately allege an underlying statutory violation, her claim for a violation of the UCL’s unlawful prong would fail because she has not alleged any reliance on the alleged underlying statutory violation. Plaintiff has alleged only that PetMatrix violated the Sherman Law and has therefore violated the unlawful prong of the UCL. (See SAC ¶ 61.) Courts have rejected such allegations because they do not constitute plausible allegations of evidentiary facts to show reliance. See Figy v. Frito-Lay, 67 F. Supp. 3d 1075, 1088 (N.D. Cal. 2014) (“[T]he Court reiterates its prior holding . . . A UCL plaintiff must plead reliance even for a claim under the UCL’s unlawfulness prong.”); see also Trazo v. Nestle Inc., 2013 U.S. Dist. LEXIS 11353, at *32 (N.D. Cal. Aug. 9, 2013) (explaining that alleging misbranding is not enough for an FAL/UCL/CLRA claim without “connect[ing] the dots” to reliance). Because Plaintiff Docken fails to allege any facts demonstrating Defendant’s violation of any specific section of the Sherman Act, or her reliance on such purported violation that caused her any injury, her claim for violation of the UCL’s “unlawful” prong also fails. D. Plaintiff Docken Fails to State a Claim Under the UCL’s “Unfair” Prong, Regardless of Which Test Applies. Case 8:16-cv-00994-AG-KES Document 26-1 Filed 10/06/16 Page 21 of 24 Page ID #:216 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 148272.00601/103556001v.3 16 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO DISMISS Plaintiff Docken also fails to state a claim under the “unfair” prong of the UCL. While there is no settled standard to determine whether a business practice is “unfair” in consumer actions, Plaintiff Docken fails to state a claim under any of the possible standards. See Yanting Zhang v. Superior Court, 57 Cal. 4th 364, 380 at n.9 (2013).8 Plaintiff Docken alleges only that “Defendants’ conduct as set forth herein constitutes unfair business acts and practices” (SAC ¶ 67); that PetMatrix’s marketing and sale of the Product “was of no benefit to consumers, and the harm to consumers is substantial” (id. ¶ 70); and that “Defendants’ conduct is and continues to be immoral, unethical, unscrupulous, contrary to public policy, and is substantially injurious to Plaintiff Docken” (id. ¶ 73). The SAC does not allege facts explaining why the conduct is unfair or how it is immoral if it is not also false and misleading. To the extent that the purported unfairness is based on alleged misrepresentations, the failure to specifically plead a misrepresentation is tantamount to a failure to plead unfairness. To the extent that Plaintiff Docken has any other basis for her unfairness claim, she fails to allege that basis and instead pleads only labels and conclusions. Conclusory allegations, devoid of factual support, that merely repeat the “unfair” prong’s standards do not suffice to state a claim under the “unfair” prong of the UCL. See Smith v. LG Elecs., USA, Inc., No. C 13-4361 PJH, 2014 WL 989742, at *9-10 (N.D. Cal. Mar. 11, 2014). The Smith court was tasked with evaluating the 8 In Yanting Zhang, the California Supreme Court noted, but did not resolve, the unsettled state of the law, citing four different possible standards. See Yanting Zhang v. Superior Court, 57 Cal. 4th 364, 380 at n.9 (2013) (citing Aleksick v. 7-Eleven, Inc., 205 Cal. App. 4th 1176, 1192 (2012) (public policy that is predicate for action must be tethered to specific constitutional, statutory or regulatory provisions); Ticconi v. Blue Shield of California Life & Health Ins. Co., 160 Cal. App. 4th 528, 539 (2008) (applying balancing test, but also examining whether practice offends established public policy or is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers); Camacho v. Auto. Club of So. California, 142 Cal. App. 4th 1394, 1403 (2006) (consumer injury must be substantial, and neither outweighed by countervailing benefits nor avoidable by consumers); Progressive West Ins. Co. v. Superior Court, 135 Cal. App. 4th 263, 285 (2005) (impact of the act or practice on victim is balanced against reasons, justifications and motives of the alleged wrongdoer)). Case 8:16-cv-00994-AG-KES Document 26-1 Filed 10/06/16 Page 22 of 24 Page ID #:217 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 148272.00601/103556001v.3 17 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO DISMISS sufficiency of substantially similar conclusory allegations in support of the plaintiff’s claim under the “unfairness” prong of the UCL. Id. at *10 (“Here, plaintiff alleges that defendants violated the ‘unfair’ prong because ‘their misrepresentations and other conduct’ are ‘substantively injurious to consumers, offend public policy,’ and are ‘immoral, unethical, oppressive, and unscrupulous.’”) Noting that the Smith plaintiff “alleges no other facts in support of her ‘unfair’ business practice claim, and thus it is devoid of factual support, apart from whatever facts might be alleged in connection with other consumer protection claims,” the court found the conclusory allegations to be insufficient to support the claim. Id. The Smith court thus dismissed the claim. Id. The same result is warranted here. E. Plaintiff Stephens Cannot Bring a Cause of Action for a Violation of the Nevada Unfair Trade Practice Act. Plaintiff Stephens asserts violation of the Nevada Unfair Trade Practice Act, Nev. Rev. Stat. 598.09 et seq., as the Eighth Cause of Action. While individuals may bring private causes of action under Nev. Rev. Stat. 41.600 where a defendant has engaged in “consumer fraud,” which Section 41.600 defines as including conduct described in Sections 598.0915 through 598.0923, there is no private cause of action to simply assert a violation of these sections without using Section 41.600. See Zandian v. Margolin, No. 65205, 65960, 2015 WL 6173912, at *1 (Nev. Oct. 19, 2015). Moreover, the penalties that Plaintiff Stephens seeks under Nev. Rev. Stat. 598.0999 are not available in a private cause of action. See Nev. Rev. Stat. 598.0999(2) (“[I]f the court finds that a person has willfully engaged in a deceptive trade practice, the Commissioner, the Director, the district attorney of any county in this State or the Attorney General bringing the action may recover a civil penalty not to exceed $5,000 for each violation) (emphasis added); see also Nev. Rev. Stat. 41.600(3) (listing available remedies in a private cause of action as including only actual damages, appropriate equitable relief, and costs and reasonable attorney’s fees). Case 8:16-cv-00994-AG-KES Document 26-1 Filed 10/06/16 Page 23 of 24 Page ID #:218 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 148272.00601/103556001v.3 18 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO DISMISS Plaintiffs attempt to assert a public cause of action where the statutory scheme does not so allow thus must be dismissed. VI. CONCLUSION PetMatrix should know the alleged wrongs being complained of, such that it can formulate a response and prepare to negate any allegation of deception, fraud, materiality and causation. As the SAC is now written, it cannot. And because it is impossible for Plaintiffs to allege a cognizable claim out of a representation of digestibility for a pet chew, the Court should dismiss the Second Amended Complaint in its entirety without leave to amend. DATED: October 6, 2016 BLANK ROME LLP By: /s/ Yosef Mahmood Ana Tagvoryan Harrison Brown Yosef Mahmood Attorneys for Defendant PETMATRIX LLC Case 8:16-cv-00994-AG-KES Document 26-1 Filed 10/06/16 Page 24 of 24 Page ID #:219 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 148272.00601/103628316v.2 DECLARATION OF YOSEF A. MAHMOOD BLANK ROME LLP Ana Tagvoryan (SBN 246536) ATagvoryan@BlankRome.com Harrison Brown (SBN 291503) HBrown@BlankRome.com Yosef Mahmood (SBN 295976) YMahmood@BlankRome.com 2029 Century Park East, 6th Floor Los Angeles, CA 90067 Telephone: 424.239.3400 Facsimile: 424.239.3434 Attorneys for Defendant PETMATRIX LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - SOUTHERN DIVISION CHARLOTTE DOCKEN, JENNIFER JOYCE STEPHENS, individually and on behalf of all others similarly situated, Plaintiff, vs. PETMATRIX LLC, a New York limited liability company, and DOES 1-20, inclusive, Defendants. Case No. 8:16-cv-00994-AG-KES Class Action DECLARATION OF YOSEF A. MAHMOOD IN SUPPORT OF DEFENDANT PETMATRIX LLC’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT Judge: Andrew J. Guilford Event: Date: November 7, 2016 Time: 10:00 a.m. Place: Court 10D Case 8:16-cv-00994-AG-KES Document 26-2 Filed 10/06/16 Page 1 of 4 Page ID #:220 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 148272.00601/103628316v.2 1 DECLARATION OF YOSEF A. MAHMOOD DECLARATION OF YOSEF A. MAHMOOD I, Yosef A. Mahmood, declare as follows: 1. I am an attorney licensed to practice law in the State of California and am an associate at Blank Rome LLP, counsel for Defendant PetMatrix, LLC (“PetMatrix”). All facts contained herein are within my personal knowledge and, if called as a witness, I could and would testify competently thereto. 2. On August 11, 2016, I called Adrian Bacon, counsel for Plaintiff Charlotte Docken, to meet and confer regarding PetMatrix’s intention to file a motion to dismiss and a motion to strike Plaintiff’s Complaint. Mr. Bacon did not answer the phone, so I left a voice message informing him of the reason for my call and requesting that he call me back. 3. On August 12, 2016, I sent an email to Mr. Bacon, informing him that we intended to file a motion to strike class allegations and a motion to dismiss the Complaint on the bases of lack of standing, lack of reliance, and failure to plead with particularity. A true and correct copy of my August 12, 2016 email is attached hereto as Exhibit A. 4. On August 12, 2016, Mr. Bacon responded by email. Mr. Bacon stated that he did not believe Defendant had a basis for the motion to strike, and that he believed the bases for the motion to dismiss to be borderline frivolous, but expressed a willingness to meet and confer regarding only the issues concerning the failure to plead with particularity. A true and correct copy of Mr. Bacon’s August 12, 2016 email is attached hereto as Exhibit B. 5. On August 22, 2016, I responded to Mr. Bacon’s email, noting several pleading deficiencies PetMatrix had identified in the Complaint. A true and correct copy of my August 22, 2016 email is attached hereto as Exhibit C. 6. On September 2, 2016, Plaintiff Docken and Plaintiff Jennifer Joyce Stephens filed a First Amended Complaint. On September 8, 2016, I emailed Mr. Bacon requesting to meet and confer regarding additional pleading deficiencies with Case 8:16-cv-00994-AG-KES Document 26-2 Filed 10/06/16 Page 2 of 4 Page ID #:221 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 148272.00601/103628316v.2 2 DECLARATION OF YOSEF A. MAHMOOD the First Amended Complaint, which contained new allegations and three new causes of action. Mr. Bacon responded by email on September 8, 2016 stating, “I already know what they are they are not appropriate for the pleadings.” A true and correct copy of the September 8, 2016 email is attached hereto as Exhibit D. 7. On Friday, September 9, 2016, Mr. Bacon and I met and conferred telephonically regarding PetMatrix’s the new pleading deficiencies with the First Amended Complaint, including Plaintiff Stephens’ lack of standing to assert violations of Nevada statutes that do not allow for a private right of action. During that call, Mr. Bacon asked me to provide him with authority for PetMatrix’s position. 8. On Monday, September 12, 2016, pursuant to Mr. Bacon’s request, I sent Mr. Bacon an email citing to case law and statutes that supported PetMatrix’s positions. A true and correct copy of my September 12, 2016 email is attached hereto as Exhibit E. 9. Plaintiffs filed a Second Amended Complaint on September 18, 2016. On Monday, September 26, 2016, I called Mr. Bacon to meet and confer regarding the Second Amended Complaint. Mr. Bacon did not answer, so I left a voice message informing him of the reason for my call. I then sent an email to Mr. Bacon regarding the bases for PetMatrix’s contemplated Motion to Dismiss, all of which had been raised before, as well as a potential Motion to Strike, which had been raised previously but also was supported by new bases. 10. Mr. Bacon responded to my email on the same day, stating that he believed that we had met and conferred to extinguish all issues and that they had satisfied all issues that we previously had raised. He also stated, “There’s no point in conducting a meet and confer because we’ve already done that several times, and we’ve satisfied all of the issues you raised to the letter, yet you a filing a motion anyways.” A true and correct copy of the September 8, 2016 email exchange is attached hereto as Exhibit F. Case 8:16-cv-00994-AG-KES Document 26-2 Filed 10/06/16 Page 3 of 4 Page ID #:222 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 148272.00601/103628316v.2 3 DECLARATION OF YOSEF A. MAHMOOD I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 6th day of October, 2016 at Los Angeles, California. /s/ Yosef A. Mahmood Yosef A. Mahmood Case 8:16-cv-00994-AG-KES Document 26-2 Filed 10/06/16 Page 4 of 4 Page ID #:223 Case 8:16-cv-00994-AG-KES Document 26-3 Filed 10/06/16 Page 1 of 2 Page ID #:224 Case 8:16-cv-00994-AG-KES Document 26-3 Filed 10/06/16 Page 2 of 2 Page ID #:225 Case 8:16-cv-00994-AG-KES Document 26-4 Filed 10/06/16 Page 1 of 3 Page ID #:226 Case 8:16-cv-00994-AG-KES Document 26-4 Filed 10/06/16 Page 2 of 3 Page ID #:227 Case 8:16-cv-00994-AG-KES Document 26-4 Filed 10/06/16 Page 3 of 3 Page ID #:228 Case 8:16-cv-00994-AG-KES Document 26-5 Filed 10/06/16 Page 1 of 2 Page ID #:229 Case 8:16-cv-00994-AG-KES Document 26-5 Filed 10/06/16 Page 2 of 2 Page ID #:230 Case 8:16-cv-00994-AG-KES Document 26-6 Filed 10/06/16 Page 1 of 2 Page ID #:231 Case 8:16-cv-00994-AG-KES Document 26-6 Filed 10/06/16 Page 2 of 2 Page ID #:232 Case 8:16-cv-00994-AG-KES Document 26-7 Filed 10/06/16 Page 1 of 3 Page ID #:233 Case 8:16-cv-00994-AG-KES Document 26-7 Filed 10/06/16 Page 2 of 3 Page ID #:234 Case 8:16-cv-00994-AG-KES Document 26-7 Filed 10/06/16 Page 3 of 3 Page ID #:235 Case 8:16-cv-00994-AG-KES Document 26-8 Filed 10/06/16 Page 1 of 3 Page ID #:236 Case 8:16-cv-00994-AG-KES Document 26-8 Filed 10/06/16 Page 2 of 3 Page ID #:237 Case 8:16-cv-00994-AG-KES Document 26-8 Filed 10/06/16 Page 3 of 3 Page ID #:238 148272.00601/103631277v.1 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - SOUTHERN DIVISION Case 8:16-cv-00994-AG-KES Document 26-9 Filed 10/06/16 Page 1 of 21 Page ID #:239 148272.00601/103631277v.1 1 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 8:16-cv-00994-AG-KES Document 26-9 Filed 10/06/16 Page 2 of 21 Page ID #:240 148272.00601/103631277v.1 2 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CHARLOTTE DOCKEN, JENNIFER Case No. 8:16-cv-00994-AG-KES Case 8:16-cv-00994-AG-KES Document 26-9 Filed 10/06/16 Page 3 of 21 Page ID #:241 148272.00601/103631277v.1 3 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOYCE STEPHENS, individually and on Case 8:16-cv-00994-AG-KES Document 26-9 Filed 10/06/16 Page 4 of 21 Page ID #:242 148272.00601/103631277v.1 4 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 behalf of all others similarly situated, Class Action Case 8:16-cv-00994-AG-KES Document 26-9 Filed 10/06/16 Page 5 of 21 Page ID #:243 148272.00601/103631277v.1 5 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 8:16-cv-00994-AG-KES Document 26-9 Filed 10/06/16 Page 6 of 21 Page ID #:244 148272.00601/103631277v.1 6 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER Case 8:16-cv-00994-AG-KES Document 26-9 Filed 10/06/16 Page 7 of 21 Page ID #:245 148272.00601/103631277v.1 7 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff, GRANTING DEFENDANT Case 8:16-cv-00994-AG-KES Document 26-9 Filed 10/06/16 Page 8 of 21 Page ID #:246 148272.00601/103631277v.1 8 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PETMATRIX LLC’S MOTION TO Case 8:16-cv-00994-AG-KES Document 26-9 Filed 10/06/16 Page 9 of 21 Page ID #:247 148272.00601/103631277v.1 9 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. DISMISS PLAINTIFFS’ SECOND Case 8:16-cv-00994-AG-KES Document 26-9 Filed 10/06/16 Page 10 of 21 Page ID #:248 148272.00601/103631277v.1 10 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AMENDED COMPLAINT Case 8:16-cv-00994-AG-KES Document 26-9 Filed 10/06/16 Page 11 of 21 Page ID #:249 148272.00601/103631277v.1 11 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PETMATRIX LLC, a New York limited Case 8:16-cv-00994-AG-KES Document 26-9 Filed 10/06/16 Page 12 of 21 Page ID #:250 148272.00601/103631277v.1 12 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 liability company, and DOES 1-20, inclusive, Case 8:16-cv-00994-AG-KES Document 26-9 Filed 10/06/16 Page 13 of 21 Page ID #:251 148272.00601/103631277v.1 13 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Judge: Andrew J. Guilford Case 8:16-cv-00994-AG-KES Document 26-9 Filed 10/06/16 Page 14 of 21 Page ID #:252 148272.00601/103631277v.1 14 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants. Case 8:16-cv-00994-AG-KES Document 26-9 Filed 10/06/16 Page 15 of 21 Page ID #:253 148272.00601/103631277v.1 15 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Date: November 7, 2016 Case 8:16-cv-00994-AG-KES Document 26-9 Filed 10/06/16 Page 16 of 21 Page ID #:254 148272.00601/103631277v.1 16 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Time: 10:00 a.m. Case 8:16-cv-00994-AG-KES Document 26-9 Filed 10/06/16 Page 17 of 21 Page ID #:255 148272.00601/103631277v.1 17 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Place: Court 10D Case 8:16-cv-00994-AG-KES Document 26-9 Filed 10/06/16 Page 18 of 21 Page ID #:256 148272.00601/103631277v.1 18 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 8:16-cv-00994-AG-KES Document 26-9 Filed 10/06/16 Page 19 of 21 Page ID #:257 148272.00601/103631277v.1 19 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 8:16-cv-00994-AG-KES Document 26-9 Filed 10/06/16 Page 20 of 21 Page ID #:258 148272.00601/103631277v.1 20 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On November 7, 2016, at 10:00 a.m., in Courtroom 10D of the above-entitled Court, Defendant PetMatrix, LLC’s (“PetMatrix”) Motion to Dismiss (“Motion”) Plaintiff Charlotte Docken and Plaintiff Jennifer Joyce Stephens’ (the “Plaintiffs”) Second Amended Complaint (the “Motion”) came on regularly for hearing before this Court, the Honorable Andrew J. Guilford presiding. Appearances were made as noted on the record. Having considered all of the papers filed in connection with the Motion, Plaintiffs’ opposition, and good cause appearing therefor, the Court issues the following order: IT IS HEREBY ORDERED that the Motion is GRANTED pursuant to Federal Rules of Civil Procedure 12(b)(6) for Plaintiffs’ failure to state a claim. PetMatrix is hereby DISMISSED from this action with prejudice. IT IS SO ORDERED. DATED:______________ ________________________________ HONORABLE ANDREW J. GUILFORD Judge of the District Court of California for the Central District Case 8:16-cv-00994-AG-KES Document 26-9 Filed 10/06/16 Page 21 of 21 Page ID #:259