Mlejnecky v. Olympus Imaging America Inc., No. 2:2010cv02630 - Document 34 (E.D. Cal. 2011)

Court Description: ORDER granting in part and denying in part 17 Dendant's Motion to Dismiss, signed by Judge John A. Mendez on 4/18/11. Plaintiff shall file her second amended complaint within 20 days of the date of this Order.(Kastilahn, A)
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Mlejnecky v. Olympus Imaging America Inc. Doc. 34 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STEFANIE MLEJNECKY, 12 Plaintiff, 13 v. 14 15 OLYMPUS IMAGING AMERICA INC., Defendant. 16 ) ) ) ) ) ) ) ) ) ) Case No. 2:10-CV-02630 JAM-KJN ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT S MOTION TO DISMISS 17 This matter comes before the Court on Defendant Olympus 18 Imaging America Inc. s (“Defendant”) Motion to Dismiss (Doc. 19 #17) Plaintiff Stefanie Mlejnecky s (“Plaintiff”) First Amended 20 Complaint (“FAC”)(Doc. #16). Plaintiff opposes the motion.1 21 I. 22 FACTUAL AND PROCEDURAL BACKGROUND Plaintiff purchased a new Stylus 1030 SW camera in July 23 24 2008 after viewing an advertisement in Parents Magazine. The 25 advertisement stated that the cameras were “the world s toughest 26 digital cameras – waterproof to 33 feet [and] shockproof from 27 1 28 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for February 23, 2011. 1 1 6.6 feet. 2 the advertisement in Parents Magazine, Plaintiff visited 3 Defendant s website, which allegedly contained the same 4 statements regarding the cameras. 5 and statements on Defendant s website, Plaintiff purchased the 6 Stylus 1030 SW. Plaintiff did not see a copy of the camera s 7 warranty or know its provisions until after she received the 8 camera and opened the package. 9 . . .” FAC at 3:3-4. In July 2008, after viewing Based on the advertisement On September 2, 2010, Plaintiff dropped her camera. 10 Plaintiff claims that although she dropped the camera from about 11 3 feet above the ground, the plastic latch for the battery/card 12 cover broke, preventing the cover from closing. 13 “card cover open” appeared, and the cover would not close, 14 making the camera inoperative. 15 Plaintiff called Defendant to report the camera s defect and 16 obtain repair or replacement of her camera. 17 representative informed her that she would have to pay around 18 $150 for repairs. 19 The message Soon after the incident, An Olympus Plaintiff brings this lawsuit as a class action. The 20 Complaint alleges five causes of action: 1) Violation of 21 California s Consumer Legal Remedies Act (“CLRA”), Cal. Civ. 22 Code section 1750 et seq.; (2) Unlawful business practices, 23 violation of California s Unfair Competition Law (“UCL”), Cal. 24 Bus. & Prof. Code section 17200, et seq.; (3) Unfair business 25 practices, violation of UCL; (4) Fraudulent business practices, 26 violation of UCL; and (5) False advertising, violation of UCL. 27 The Court has jurisdiction under 28 U.S.C. § 1332. 28 2 1 2 II. A. Legal Standard 3 4 OPINION 1. Standing The Article III case or controversy requirement limits 5 federal courts' subject matter jurisdiction by requiring that 6 plaintiffs have standing. 7 (1984). 8 bears the burden of proving its existence. 9 Life Insurance Co., 511 U.S. 375, 377 (1994). Allen v. Wright, 468 U.S. 737, 750 The party asserting federal subject matter jurisdiction Kokkonen v. Guardian Standing 10 addresses whether the plaintiff is the proper party to bring the 11 matter to the court for adjudication. 12 Mutual Automobile Insurance Co., 598 F.3d 1115, 1122 (9th Cir. 13 2010). 14 matter jurisdiction, it is properly raised in a 12(b)(1) motion 15 to dismiss. Because standing pertains to federal courts subject 16 17 Chandler v. State Farm 2. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). Motion to Dismiss A party may move to dismiss an action for failure to state 18 a claim upon which relief can be granted pursuant to Federal 19 Rules of Civil Procedure 12(b)(6). 20 dismiss, the court must accept the allegations in the complaint 21 as true and draw all reasonable inferences in favor of the 22 plaintiff. 23 overruled on other grounds by Davis v. Scherer, 468 U.S. 183 24 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). 25 are mere “legal conclusions,” however, are not entitled to the 26 assumption of truth. 27 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 28 (2007). In considering a motion to Scheuer v. Rhodes, 416 U.S. 232, 236 (1975), Assertions that Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 To survive a motion to dismiss, a plaintiff needs to 3 1 plead “enough facts to state a claim to relief that is plausible 2 on its face.” 3 appropriate where the plaintiff fails to state a claim 4 supportable by a cognizable legal theory. 5 Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990). 6 Twombly, 550 U.S. at 570. Dismissal is Balistreri v. Upon granting a motion to dismiss for failure to state a 7 claim, the court has discretion to allow leave to amend the 8 complaint pursuant to Federal Rules of Civil Procedure 15(a). 9 “Dismissal with prejudice and without leave to amend is not 10 appropriate unless it is clear . . . that the complaint could 11 not be saved by amendment.” 12 Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). 13 14 15 B. Eminence Capital, L.L.C. v. Aspeon, Claims for Relief 1. Injury Sufficient to Confer Standing Defendant characterizes Plaintiff s lawsuit as a post- 16 warranty action and argues that she generally lacks standing 17 because her camera broke more than a year beyond the expiration 18 of the warranty and she does not allege that there was a safety 19 issue or a representation about the lifespan of the product that 20 would give her standing to assert a post-warranty claim. 21 Defendant further argues that the challenged representations 22 reiterate the terms of the express warranty, which warrants the 23 camera s ability to operate in water at depths of up to 10 24 meters and sustain accidental impact for one year. 25 also contends that in the absence of representations 26 contradicting the terms of the warranty, “the only expectation 27 buyers could have had about the [product] was that it would 28 function properly for the length of [the] express warranty, and 4 Defendant 1 it did.” 2 Cal.App.4th 824, 838 (Cal.App.Ct.2d 2006). 3 Plaintiff s lawsuit as a post-warranty action, Defendant argues 4 that Plaintiff s claims are barred because she has no standing 5 to assert an injury for a defect arising after the warranty 6 expired. 7 Daugherty v. American Honda Motor Co., Inc., 144 Thus, by framing Plaintiff counters that this is not a post-warranty action, 8 but an affirmative misrepresentation lawsuit. Plaintiff argues 9 that Defendant s representations that the Stylus SW cameras are 10 waterproof and shockproof are untrue and that Defendant s 11 failure to disclose the defects inherent in its Stylus SW 12 cameras run counter to those affirmative misrepresentations. 13 Plaintiff also avers that Defendant s express warranty excludes 14 defects and damage caused by shock and water exposure. 15 Plaintiff contends that Defendant cannot point to the expiration 16 of a warranty that never covered the defects in the first place 17 to insulate it from liability for fraudulent misrepresentations 18 regarding the cameras characteristics. 19 Pneumatic Tool Co., 152 Cal.App.3d 951, 958 (Cal.App.Ct.4d 1984) 20 (finding that where a product has been described by its 21 manufacturer as having certain detailed capacities under certain 22 conditions, it would be both unfair and unreasonable to disclaim 23 those features in the express warranty); see also In re Toyota 24 Motor Corp., No. 8:10ML 021515, 2010 WL 4867562, *13 (C.D. Cal. 25 Nov. 30, 2010) (concluding warranty based defenses do not 26 preclude standing even if the warranty covered the defect in 27 question). 28 Thus, See Fundin v. Chicago Under California law, where a manufacturer of consumer 5 1 goods has warranted a product for a limited period, the 2 manufacturer is liable under the CLRA or UCL for failing to 3 disclose information about a defect that manifests itself 4 outside the express warranty period when (1) the omitted fact 5 runs counter to a representation made by the defendant, or 6 (2) the defendant had a duty to disclose the omitted 7 information. 8 9 Daughtery, 144 Cal.App.4th at 835. The Court finds that Plaintiff s FAC asserts affirmative misrepresentation claims, not a post-warranty case. Unlike the 10 plaintiffs in Daugherty, the principle case upon which Defendant 11 relies, Plaintiff is not alleging a breach of an express 12 warranty or a violation of the Manuson-Moss Warranty-Federal 13 Trade Commission Improvement Act. 14 Daugherty are dissimilar to the facts in the instant case. 15 Daugherty, Plaintiffs alleged that Honda s F22 engine had a 16 defect which manifested after the express warranty expired. 17 Here, Plaintiff alleges that the defect is inherent in the 18 product. 19 summarizes and agrees with the holding of Outboard Marine Corp. 20 v. Superior Court, 52 Cal.App.3d 30 (Cal.App.Ct.3d 1975). 21 Outboard Marine, the plaintiff alleged that the defendant had 22 represented its off-road vehicles as able to climb very steep 23 hills, drive on the sides of hills, and safely descent very 24 steep grades. 25 plaintiff also alleged that defendant knew, but failed to 26 disclose, that the vehicle “would not operate within „its design 27 criteria, ” “would roll over forward on a downgrade,” and that 28 “its braking system was totally defective.” Additionally, the facts in In Finally, and most significantly, the Daugherty court Outboard Marine, 52 Cal.App.3d at 34. 6 Id. In The The Outboard 1 Marine court denied the defendant s motion to dismiss, holding 2 that the CLRA “includes a proscription against the concealment 3 of the characteristics, use, benefit, or quality of the goods 4 contrary to that represented.” 5 between this case, Outboard Marine, and Daughtery, is that in 6 the instant case and in Outboard Marine, plaintiffs allege a 7 concealment of characteristics or quality contrary to that 8 represented, but in Daugherty, no representation was made to 9 which the alleged concealment was contrary. Id. at 37. The difference Daughtery, 144 10 Cal.App.4th at 834. 11 Plaintiff s case is based on an affirmative misrepresentation 12 theory, and not a post-warranty theory, Defendant s Motion to 13 Dismiss the entire FAC on general lack of standing grounds is 14 DENIED. 15 2. Therefore, because the Court finds that Standing Under the CLRA and UCL 16 In addition to its general lack of standing argument, 17 Defendant contends that Plaintiff lacks standing under the CLRA 18 and UCL on numerous grounds discussed below. 19 that she has sufficiently pled enough facts to give her 20 standing. 21 22 a) Plaintiff responds Injury In Fact Defendant argues that Plaintiff has not alleged an injury 23 sufficient to confer standing under the UCL and CLRA. Plaintiff 24 counters that she has standing based on Defendant s affirmative 25 misrepresentations. 26 To have standing under the UCL, as well as to serve as a 27 class representative, plaintiff must “(1) establish a loss or 28 deprivation of money or property sufficient to qualify as injury 7 1 in fact, i.e., economic injury, and (2) show that the economic 2 injury was the result of, i.e., caused by, the unfair business 3 practice or false advertising that is the gravamen of the 4 claim.” 5 2011 WL 240278, at *5 (Cal. Jan. 27, 2011). 6 Plaintiff must show a tangible increased cost or burden 7 resulting from an alleged unlawful practice. 8 § 1780(a); Meyer v. Sprint Spectrum L.P., 45 Cal.4th 634, 643 9 (Cal. 2009) (holding that the CLRA only applies when an Kwikset Corp. v. Superior Court, --- Cal. Rptr.3d ---, Under the CLRA, Cal. Civ. Code 10 allegedly unlawful practice results in a tangible increased cost 11 or burden to the consumer). 12 Plaintiff alleges that Defendant affirmatively represented 13 in advertisements and on its website that the Olympus Stylus SW 14 cameras were “waterproof to 33 feet” and “shockproof from 6.6 15 feet.” FAC ¶ 8. 16 false. FAC ¶ 3, 48, 62, 75, 88, 101-02. 17 saw the false statements in an advertisement and on Defendant s 18 website and she relied on those statements in purchasing her 19 Stylus 1030 SW camera. 20 purchased a Stylus SW camera had Defendant not made the 21 misrepresentations in its advertisements and on its website. 22 Id. 23 turned out not to be as advertised. 24 these allegations as true, as the Court must, the Court finds 25 that Plaintiff has properly alleged an injury, sufficient to 26 confer standing for the Stylus 1030 SW, under the UCL and CLRA. Plaintiff alleges those representations are FAC ¶ 8. She alleges that she She alleges she would not have Finally, Plaintiff alleges she was damaged when the camera 27 28 8 Id. Thus, taking all of 1 b) 2 3 Standing For a Product Plaintiff Did Not Purchase Plaintiff makes no allegations that she viewed any 4 advertisements for the Stylus 850 SW or that she ever owned such 5 a camera. 6 the Stylus 850 SW has the same underlying defects as the Stylus 7 1030 and Defendant used the same advertisement for all Stylus 8 cameras. 9 Instead, Plaintiff argues she has standing because District courts in this circuit have split over whether a 10 named plaintiff has standing for a product she did not purchase. 11 Defendant relies on Johns v. Bayer Corp., No. 09-cv-1935, 2010 12 WL 476688, *4-5 (S.D.Cal. Feb. 9, 2010) which held that the 13 plaintiff lacked standing to sue for a vitamin product he did 14 not purchase, even though it contained the same alleged defect 15 and was part of the same uniform advertising campaign as the 16 vitamin product the plaintiff purchased. 17 that plaintiff “cannot expand the scope of his claims to include 18 a product he did not purchase or advertisements relating to a 19 product that he did not rely upon.” 20 relies on two cases, Carideo v. Dell, Inc., 706 F.Supp.2d 1122 21 (W.D. Wash. 2010) and Hewlett-Packard v. Superior Court, 167 22 Cal.App.4th 87 (Cal.App.Ct.6d 2008). 23 allowed the complaint to include computer models that the named 24 plaintiffs did not purchase, but for which the plaintiffs 25 pleaded the same core factual allegations and causes of actions 26 regarding the alleged defects in the computer models. 27 F.Supp.2d at 1134. 28 class action lawsuit to proceed past the class certification The court reasoned Johns at *5. Plaintiff In Carideo, the court 706 In Hewlett-Packard, the court allowed a 9 1 stage based on a common defect in the HP notebook computers and 2 their display screens where the named plaintiff had purchased 3 one of the many models at issue. 4 167 Cal.App.4th at 89-91. The Court finds Johns to be more persuasive than those 5 cases relied upon by Plaintiff, because the Johns court s 6 reasoning is more in line with the recent standard delineated by 7 the California Supreme Court in Kwikset, 2011 WL 240278. 8 Kwikset, discussed supra, held that to have standing, a 9 plaintiff must allege an economic injury and must allege that 10 the economic injury was caused by Defendant s unfair business 11 practices. 12 not claim that she suffered any economic injury from any alleged 13 misrepresentations regarding the Stylus 850 SW. 14 the Court GRANTS, WITH LEAVE TO AMEND, Defendant s Motion to 15 Dismiss Plaintiff s claims concerning the Stylus 850 SW. 16 17 See Kwikset, 2011 WL 240278 at *5. c) Plaintiff does Accordingly, Defects Plaintiff Did Not Experience Plaintiff asserts claims based on the purported shockproof 18 and waterproof features of the Stylus 1030 SW, despite making no 19 allegation that her camera suffered from any defects relating to 20 the waterproof feature. 21 Plaintiff relies on Falk v. General Motors Corp., 496 22 F.Supp.2d 1088 (N.D. Cal. 2007) to argue that the manner in 23 which a product defect manifests is not material to whether a 24 plaintiff may state a claim under the CLRA or UCL. 25 persuasive. 26 dismiss the CLRA and UCL claims based on defective speedometers 27 that manifest the defect in different ways for different 28 consumers, the named plaintiffs all alleged an injury stemming Falk is not While the court in Falk denied the motion to 10 1 from the defect. In this case, Plaintiff has not alleged that 2 she was affected in any way by the alleged misrepresentation 3 that the Stylus 1030 SW is waterproof. 4 been subject to injurious conduct of one kind [does not] possess 5 by virtue of that injury the necessary stake in litigating 6 conduct of another kind, although similar, to which he has been 7 subject.” 8 Accordingly, Defendant s Motion to Dismiss Plaintiff s claims to 9 the extent they concern a defect she did not experience, i.e. “[A] plaintiff who has Blum v. Yaretsky, 457 U.S. 991, 999 (1982). 10 that the Stylus 1030 SW is not waterproof, is GRANTED WITH LEAVE 11 TO AMEND. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 d) Advertising Plaintiff Did Not View Plaintiff specifically identifies statements in the Parents Magazine advertisement and on Defendant s website that she relied on in purchasing her Stylus camera. Defendant argues that Plaintiff lacks standing for her broad challenge of statements made in unspecified “marketing materials” and “other places.” FAC ¶¶ 24-25, 37. The allegations concerning the Parents Magazine advertisement and Defendant s website are sufficient to confer Plaintiff s standing to challenge those representations. However, she cannot broaden her argument to materials upon which she did not specifically rely. See Durell v. Sharp Healthcare, 183 Cal.App.4th 1350, 1363-64 (Cal.App.Ct.4d 2010) (dismissing claim after plaintiff failed to allege that he relied on or viewed the website that he claimed contained misrepresentations). Since Plaintiff does not allege a long-term advertising campaign or exposure to any other advertisements, Plaintiff lacks standing to sue Defendant for 11 1 advertisements and statements other than those she saw and 2 relied upon. 3 (Cal. 2009) (holding that where plaintiffs have been exposed to 4 and had relied upon a long-term advertising campaign, they are 5 not required to specify with detail which of the particular 6 advertisements they relied upon). 7 that Plaintiff has standing to challenge only the 8 representations made in the advertisements Plaintiff saw in 9 Parents Magazine and on Defendant s website unless she can See In re Tobacco II Cases, 46 Cal.4th 298, 328 Accordingly, the Court finds 10 allege that she was exposed to a long-term advertising campaign. 11 The Court GRANTS WITH LEAVE TO AMEND Defendant s Motion to 12 Dismiss the allegations found in ¶¶ 24, 25 and 37 of the FAC 13 concerning alleged statements made by Defendant in unspecified 14 “marketing materials” and “other places”. 15 16 3. Claims Grounded in Fraud Defendant argues that the FAC sounds in fraud and should be 17 dismissed because Plaintiff fails to plead fraud with the 18 particularity required by Rule 9(b) and Plaintiff fails to plead 19 falsity and a failure to disclose. 20 has alleged the fraud-based claims with specificity. 21 Plaintiff responds that she When allegations of fraud are made, Rule 9(b) requires 22 plaintiffs to “state with particularity the circumstances 23 constituting fraud. 24 . . .” FED.R.CIV.P. 9(b). Rule 9(b) requires fraud claims to be “specific enough to 25 give defendants notice of the particular misconduct . . . so 26 that they can defend against the charge and not just deny that 27 they have done anything wrong.” 28 F.3d 1014, 1019 (9th Cir. 2001) (internal quotations omitted). Bly-Magee v. California, 236 12 1 “Averments of fraud must be accompanied by the who, what, when, 2 where, and how of the misconduct charged.” 3 Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (internal 4 citations omitted). 5 alleged statements were false, but must specify how statements 6 were false when they were made. 7 Litigation, 42 F.3d 1541, 1548-49 (9th Cir. 1994) (en banc), 8 (superseded by statute on other grounds); Vess, 317 F.3d at 9 1106. 10 Vess v. Ciba-Geigy Plaintiffs must not only specify how In re Glenfed, Inc. Securities Plaintiff does not dispute that Rule 9(b) applies to her 11 claims but argues that the FAC satisfies the heightened pleading 12 requirements for the fraud-based claims. Contrary to Defendant s 13 argument, the Court finds that the FAC repeatedly identifies 14 Defendant as responsible for the alleged misrepresentations, it 15 specifically identifies the substance of the alleged 16 misrepresentations, it includes the specific month and year the 17 alleged misrepresentations appeared in Parents Magazine and on 18 Defendant s website, and it describes how the alleged 19 misrepresentations are false. 20 are sufficiently specific to provide Defendant sufficient notice 21 against Plaintiff s charges. 22 Thus, the FAC s fraud allegations Plaintiff alleges that Defendant knew of the falsity of its 23 alleged misrepresentations from the online reviews and 24 complaints from consumers. 25 be „relaxed as to matters peculiarly within the opposing party s 26 knowledge, if the plaintiffs cannot be expected to have 27 personal knowledge of the facts prior to discovery.” 28 Gupta Corp. Securities Litigation, 900 F.Supp.1217, 1228 (N.D. “The requirements of Rule 9(b) may 13 In re 1 Cal 1994), quoting Wool v. Tandem Computers Inc., 818 F.2d 1433, 2 1439 (9th Cir. 1987). 3 satisfied if the allegations are accompanied by a statement of 4 the facts upon which the belief is founded.” 5 1439. 6 which the belief is founded in the form of online reviews and 7 complaints from consumers. 8 sufficiently pleads that Defendant was aware that its Stylus 9 cameras were not as shockproof as advertised to survive the 10 “[T]he particularity requirements may be Wool, 818 F.2d at The FAC includes a detailed statement of the facts upon Based on those reviews, Plaintiff Motion to Dismiss. 11 Furthermore, because Plaintiff is alleging affirmative 12 material representations, she does not need to allege the useful 13 life of the product. 14 (citing Bardin v. DaimlerChrysler Corp., 136 Cal.App.4th 1255, 15 1275 (Cal.App.Ct.4d 2006). 16 Dismiss Plaintiff s FAC for failing to properly plead the 17 averments of fraud is DENIED. 18 19 4. See Daugherty, 144 Cal.App.4th at 838 Accordingly, Defendant s Motion to Unfair Business Practice Defendant argues that Plaintiff s third claim for an 20 “unfair business practice” under the UCL fails because Plaintiff 21 does not tether her claims to any legislatively-declared public 22 policy. 23 apply to claims brought by consumers alleging misleading 24 advertising. 25 sufficiently alleges an “unfair” claim under the UCL. Plaintiff responds that the tethering test does not In the alternative, she argues that she 26 In Cel-Tech Communications, Inc. v. L.A. Cellular Telephone 27 Co., 20 Cal.4th 163, 180-81, (Cal. 1999), the California Supreme 28 Court ruled that conduct is “unfair” between business 14 1 competitors under the UCL only if it is “tethered” to an 2 underlying law. 3 Supreme Court limited the context of its ruling by specifying 4 that “[n]othing we say relates to actions by consumers or by 5 competitors alleging other kinds of violations of the unfair 6 competition law such as . . . untrue or misleading advertising.” 7 Id. at 187 n. 12. 8 allegations of unfair practices as applied to consumers, 9 however, is not settled. Cel-Tech, 20 Cal.4th at 186-87. The California Whether the tethering test is applicable to California appellate courts have split 10 on whether to apply the tethering test or an older balancing 11 test to consumers alleging unfair business practices. 12 Gregory v. Albertson's, Inc., 104 Cal.App.4th 845, 854, 389 13 (Cal. App. Ct. 1d 2002) (applying tethering test to consumers); 14 and Scripps Clinic v. Superior Court, 108 Cal.App.4th 917, 938 15 (Cal.App.Ct.4d 2003) (same); with Smith v. State Farm Mutual 16 Automobile Insurance Co., 93 Cal.App.4th 700, 718-19 17 (Cal.App.Ct. 2d 2001) (applying balancing test). 18 Circuit has not stated its preference. 19 Wireless Services, Inc., 504 F.3d 718, 737 (9th Cir. 2007) 20 (holding that the tethering test and the balancing test are not 21 mutually exclusive and upholding the district court s 22 application of the balancing test). 23 Compare The Ninth See Lozano v. AT&T The Court finds that the application of the balancing test 24 to the case at bar is appropriate. This case involves a 25 consumer alleging misrepresentation and the California Supreme 26 Court specified that its holding does not apply to misleading 27 advertisements. 28 and practices cause injuries to consumers, which outweigh their Plaintiff s allegation that Defendant s acts 15 1 benefits, combined with the specific descriptions of harm faced 2 by Plaintiff, is sufficient to survive a motion to dismiss. 3 Furthermore, even if the Court were to find that tethering to 4 public policy were required, Plaintiff adequately alleges 5 tethering by stating that Defendant s unfair business acts or 6 practices violate established public policy reflected in the UCL 7 and CLRA, including but not limited to California Civil Code 8 sections 1770(a)(5) and 1770(a)(7) and California Business and 9 Professions Code section 175000. 10 Accordingly, Defendant s Motion to Dismiss the “unfair” claim (claim 3) is DENIED. 11 12 III. ORDER 13 For the reasons set forth above, 14 Defendant s Motion to Dismiss the FAC for a generalized 15 16 lack of standing is DENIED. Defendant s Motion to Dismiss Plaintiff s FAC in so far as 17 it concerns the Stylus 1030 SW and its shockproof features is 18 DENIED. 19 Defendant s Motion to Dismiss Plaintiff s FAC in so far as 20 it concerns the Stylus 850 SW, any waterproof defects of any 21 camera, and any advertisements upon which Plaintiff did not 22 specifically rely is GRANTED WITH LEAVE TO AMEND. 23 24 25 Defendant s Motion to Dismiss Plaintiff s FAC for failing to plead her fraud-based claims with specificity is DENIED. Defendant s Motion to Dismiss Plaintiff s FAC for failing 26 to allege facts supporting the elements of her “unfair” business 27 claim is DENIED. 28 Plaintiff shall file her Second Amended Complaint within 16 1 2 twenty (20) days of the date of this Order. IT IS SO ORDERED. 3 4 Dated: April 18, 2011 ____________________________ JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17