Riordan et al v. Western Digital Corporation, No. 5:2021cv06074 - Document 67 (N.D. Cal. 2024)

Court Description: ORDER GRANTING 62 DEFENDANT'S MOTION TO DISMISS CLAIMS FOR INJUNCTIVE RELIEF AND CLAIMS 1, 3, & 4 OF SECOND AMENDED COMPLAINT. Answer due by 6/19/2024. Signed by Judge Edward J. Davila on 6/5/2024.(ejdlc2, COURT STAFF) (Filed on 6/5/2024)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 KEVIN RIORDAN, et al., Plaintiffs, 9 10 United States District Court Northern District of California 11 12 v. WESTERN DIGITAL CORPORATION, Defendant. Case No. 21-cv-06074-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS CLAIMS 1, 3, & 4 OF PLAINTIFFS’ SECOND AMENDED COMPLAINT Re: ECF No. 62 13 14 Plaintiffs Kevin Riordan, Ashley Laurent, Jeremy Bobo, and Nagui Sorial (together, 15 “Plaintiffs”) bring this putative class action against Defendant Western Digital Corporation 16 (“Defendant” or “Western Digital”), a manufacturer of data storage devices, alleging that 17 Defendant failed to properly secure and safeguard information Plaintiffs stored on Defendant’s 18 devices. The operative Second Amended Complaint (“SAC”) asserts claims for (1) violation of 19 the Song-Beverly Consumer Warranty Act (the “Song-Beverly Act” or the “Act”), California Civil 20 Code §§ 1792, et seq.; (2) negligence / failure to warn; (3) violation of the California Unfair 21 Competition Law (“UCL”), California Business & Professions Code §§ 17200, et seq.; and (4) 22 unjust enrichment. See SAC ¶¶ 127–70, ECF No. 61. Now pending before the Court is 23 Defendant’s Motion to Dismiss Plaintiff’s Second Amended Complaint (the “Motion”), which 24 requests that the Court dismiss Plaintiffs’ first, third, and fourth claims, as well as any claims for 25 injunctive relief, without leave to amend. See Mot., ECF No. 62. The Court took the motion 26 under submission for decision without oral argument pursuant to Civil Local Rule 7-1(b). For the 27 reasons discussed herein, the Court GRANTS Defendant’s Motion without leave to amend. 28 Case No.: 21-cv-06074-EJD ORDER GRANTING DEFT.’S MOT. TO DISMISS CLS. 1, 3, 4 OF SECOND AM. COMPL. 1 1 I. 2 A. 3 Western Digital is a “leading global data storage brand” incorporated in Delaware and Factual Allegations1 4 headquartered in San Jose, California. SAC ¶¶ 68, 71. It develops, manufactures, and provides 5 data storage devices, including the “My Book Live” and “My Book Live Duo” (the “Data Storage 6 Devices”). Id. ¶¶ 6–7. Plaintiffs are four individuals who reside in Tennessee (Mr. Riordan), 7 Minnesota (Mr. Laurent), and California (Mr. Bobo and Mr. Sorial). Id. ¶¶ 23, 34, 47, 56. 8 Plaintiffs all purchased and used at least one of the Data Storage Devices. Id. Plaintiffs bring this class action against Western Digital for failure to properly secure and 9 United States District Court Northern District of California BACKGROUND 10 safeguard Plaintiffs’ and proposed class members’ personal, commercial, and proprietary 11 information (the “Stored Data”) within the Data Storage Devices. SAC ¶ 2. The Data Storage 12 Devices were “configured to operate remotely and/or utilizing Defendant’s web portal for such 13 purposes,” id. ¶ 6, and Plaintiffs used the web portal to access their data remotely, id. ¶ 72. 14 Defendant marketed the web portal remote access as a key feature of the Data Storage Devices. 15 Id. ¶¶ 11, 86. Plaintiffs allege that each Data Storage Device had at least two security flaws—the 16 “2018 Vulnerability” and the “2021 Vulnerability”—in its software at the time of the cyber attack. 17 Id. ¶¶ 8, 18, 92. Plaintiffs further allege that the 2018 Vulnerability was listed on the National 18 Institute of Standards and Technology’s National Vulnerability Database on June 19, 2019, so that 19 Defendant knew or should have known of the 2018 vulnerability by at least this date. Id. ¶ 133. 20 Plaintiffs also allege that Defendant “created/caused the 2021 Vulnerability insofar as it was 21 Defendant that, much earlier than 2021, disabled at least five lines of code . . . that were intended 22 to prevent anyone lacking the [relevant] password(s) from accessing and/or performing a factory 23 reset” of a given Data Storage Device. SAC ¶ 89. Due to the 2018 and 2021 Vulnerabilities, unauthorized persons accessed and deleted data 24 25 on Data Storage Devices beginning on June 23, 2021, and each Plaintiff lost personal and business 26 27 28 The following recitation is taken in large part from the Court’s order on Defendant’s motion to dismiss Plaintiffs’ First Amended Complaint (“FAC”). See ECF No. 59. Case No.: 21-cv-06074-EJD ORDER GRANTING DEFT.’S MOT. TO DISMISS CLS. 1, 3, 4 OF SECOND AM. COMPL. 2 1 1 data in one or more cyber attacks. See id. ¶¶ 1, 9. The hackers performed factory resets on 2 Plaintiffs’ Data Storage Devices—thereby wiping Plaintiffs’ Stored Data from the devices—and 3 users were unable to log into their devices using their own credentials. SAC ¶ 95. Various 4 Plaintiffs have consulted unsuccessfully with numerous data recovery services. See, e.g., id. ¶ 67. 5 Defendant has offered to provide a data recovery service and device trade-in, but given the 6 hackers’ data wipe procedure, the recovery attempt would be largely ineffectual in reversing the 7 deletion of the Stored Data. Id. ¶¶ 102–04. Plaintiffs are unaware of whether their Stored Data 8 was merely deleted or whether the information is also in the hands of cyber criminals. Id. ¶ 100. 9 B. Plaintiffs filed this lawsuit on August 6, 2021. See Compl., ECF No. 1. Defendant 10 United States District Court Northern District of California Procedural History 11 responded by moving to dismiss. See ECF No. 22. The Court granted the motion on the ground 12 that Plaintiffs had failed to plead facts sufficient to establish Article III standing. See ECF No. 34. 13 Plaintiffs then filed the First Amended Complaint (“FAC”), and the Court granted Defendant’s 14 subsequent motion to dismiss. See Order Granting in Part & Denying in Part Deft.’s Mot. to 15 Dismiss (“FAC Order”), ECF No. 59. Plaintiffs then filed the SAC in October 2023. See SAC. 16 Defendant filed the pending Motion, which was fully briefed in November 2023 and set for 17 hearing in January 2024. See Mot.; Opp’n, ECF No. 63; Reply, ECF No. 64. The Court took the 18 Motion under submission in January 2024. See ECF No. 65. 19 II. LEGAL STANDARDS 20 A. 21 Federal courts are courts of limited jurisdiction. They “have only the power that is 22 authorized by Article III of the Constitution and the statutes enacted by Congress thereto.” Couch 23 v. Telescope Inc., 611 F.3d 629, 632 (9th Cir. 2010) (quoting Bender v. Williamsport Area Sch. 24 Dist., 475 U.S. 534, 541 (1986)). “Article III confines the federal judicial power to the resolution 25 of ‘Cases’ and ‘Controversies,’” meaning that the plaintiff must have “a ‘personal stake’ in the 26 case—in other words, standing.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021) (citation 27 omitted). To establish Article III standing, a plaintiff must show “(i) that he suffered an injury in 28 Case No.: 21-cv-06074-EJD ORDER GRANTING DEFT.’S MOT. TO DISMISS CLS. 1, 3, 4 OF SECOND AM. COMPL. 3 Subject Matter Jurisdiction 1 fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused 2 by the defendant; and (iii) that the injury would likely be redressed by judicial relief.” Id. (citing 3 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). “[A] plaintiff must demonstrate 4 standing separately for each form of relief sought.” Friends of the Earth, Inc. v. Ladlaw Env’t 5 Servs. (TOC), Inc., 528 U.S. 167, 185 (2000) (citations omitted). United States District Court Northern District of California 6 A party may assert a defense of lack of subject matter jurisdiction, including for Plaintiffs’ 7 lack of Article III standing, under Federal Rule of Civil Procedure 12(b)(1). A jurisdictional 8 attack may be “facial,” such that the defendant “asserts that the allegations contained in a 9 complaint are insufficient on their face to invoke federal jurisdiction.” Safe Air for Everyone v. 10 Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “The district court resolves a facial attack as it 11 would a motion to dismiss under Rule 12(b)(6): Accepting the plaintiff’s allegations as true and 12 drawing all reasonable inferences in the plaintiff's favor, the court determines whether the 13 allegations are sufficient as a legal matter to invoke the court’s jurisdiction.” Leite v. Crane Co., 14 749 F.3d 1117, 1121 (9th Cir. 2014). 15 B. 16 Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include “a Rule 12(b)(6) 17 short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint 18 that fails to meet this standard may be dismissed pursuant to Rule 12(b)(6). Rule 8(a) requires a 19 plaintiff to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 20 Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff 21 pleads factual content that allows the court to draw the reasonable inference that the defendant is 22 liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While plaintiffs 23 must allege “more than a sheer possibility that a defendant has acted unlawfully,” the plausibility 24 standard “is not akin to a probability requirement.” Id. 25 For purposes of ruling on a Rule 12(b)(6) motion, the Court generally “accept[s] factual 26 allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the 27 nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 28 Case No.: 21-cv-06074-EJD ORDER GRANTING DEFT.’S MOT. TO DISMISS CLS. 1, 3, 4 OF SECOND AM. COMPL. 4 1 2008). The Court need not, however, “assume the truth of legal conclusions merely because they 2 are cast in the form of factual allegations.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) 3 (per curiam). Mere “conclusory allegations of law and unwarranted inferences are insufficient to 4 defeat a motion to dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004). The Court 5 may also “look beyond the plaintiff’s complaint to matters of public record” without converting 6 the Rule 12(b)(6) motion into a motion for summary judgment. Shaw v. Hahn, 56 F.3d 1128, 7 1129 (9th Cir. 1995). 8 III. United States District Court Northern District of California 9 DISCUSSION Plaintiffs assert four claims, namely, violation of the Song-Beverly Act; negligence / 10 failure to warn; violation of the UCL; and unjust enrichment. See SAC ¶¶ 127–70. Defendant 11 argues that the Court should (1) dismiss any claims for injunctive relief under Federal Rule of 12 Civil Procedure 12(b)(1) for lack of subject matter jurisdiction due to Plaintiffs’ failure to 13 establish Article III standing, and (2) dismiss Plaintiffs’ Song-Beverly Act, UCL, and unjust 14 enrichment claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. See 15 Mot. 6–7. The Court first turns to the issue of subject matter jurisdiction over Plaintiffs’ claims 16 for injunctive relief before addressing the parties’ Rule 12(b)(6) arguments. 17 A. 18 Defendant argues that Plaintiffs fail to allege facts about Defendant’s future misuse of data Article III Standing / Subject Matter Jurisdiction (Fed. R. Civ. P. 12(b)(1)) 19 sufficient for the injury-in-fact element of Article III standing, so that the Court does not have 20 subject matter jurisdiction over Plaintiffs’ requests for injunctive relief and should accordingly 21 dismiss those claims under Federal Rule of Civil Procedure 12(b)(1). See Mot. 7–9. Plaintiffs 22 respond that they submit to the Court’s prior finding that Plaintiffs “did not establish a sufficient 23 risk of future injury for Article III standing purposes,” and thus “agree any remaining vestige of 24 injunctive relief” can be struck. Opp’n 4. The Court determined in the FAC Order that Plaintiffs’ 25 alleged injury-in-fact “rel[ied] on mere speculation and conjecture that their data may have been 26 stolen,” and held that Plaintiffs lacked standing to pursue claims for injunctive relief. FAC Order 27 8; see generally id. at 6–9. The SAC does not contain any more concrete allegations related to 28 Case No.: 21-cv-06074-EJD ORDER GRANTING DEFT.’S MOT. TO DISMISS CLS. 1, 3, 4 OF SECOND AM. COMPL. 5 1 future data misuse. See generally SAC. Given Plaintiffs’ express agreement that they do not have 2 standing to request injunctive relief, and the lack of relevant new allegations in the SAC, the Court 3 reiterates its prior finding that Plaintiffs have not established Article III standing to request 4 injunctive relief. United States District Court Northern District of California 5 Accordingly, the Court will grant Defendant’s motion to dismiss Plaintiffs’ requests for 6 injunctive relief for lack of subject matter jurisdiction, including but not limited to Plaintiffs’ 7 requests for a class-wide injunction and an injunction under the UCL. See SAC ¶¶ 82, 162; id. at 8 Prayer for Relief, nos. 3–5. As Plaintiffs have agreed that “any remaining vestige” of injunctive 9 relief may be stricken from the SAC, the dismissal will be without leave to amend. 10 B. 11 Defendant next argues that Plaintiffs fail to state a claim for violation of the Song-Beverly Failure to State a Claim (Fed. R. Civ. P. 12(b)(6)) 12 Act, violation of the UCL, and unjust enrichment. See Mot. 9–21. The Court turns to each 13 challenged claim in turn. 14 15 1. Song-Beverly Act Plaintiffs’ first claim asserts that Defendant violated the Song-Beverly Act’s implied 16 warranty of merchantability and fitness “on the basis of [Defendant’s] defective products 17 themselves but also due to Defendant’s maintenance of faulty web portals.” See SAC ¶¶ 127–39. 18 “Under the Song-Beverly Act, every retail sale of ‘consumer goods’ in California includes an 19 implied warranty by the manufacturer and the retail seller that the goods are ‘merchantable’ unless 20 the goods are expressly sold ‘as is’ or ‘with all faults.’” Mexia v. Rinker Boat Co., Inc., 174 Cal. 21 App. 4th 1297, 1303 (2009) (citing Cal. Civ. Code §§ 1791.3, 1792); see also Daniel v. Ford 22 Motor Co., 806 F.3d 1217, 1223 (9th Cir. 2015) (“While California federal district courts have 23 given Mexia mixed treatment . . . we must adhere to state court decisions—not federal court 24 decisions—as the authoritative interpretation of state law.”) (citations omitted). The Act includes 25 a duration provision stating that “the implied warranty of merchantability and where present the 26 implied warranty of fitness . . . in no event shall . . . have a duration of less than 60 days nor more 27 than one year following the sale of new consumer goods to a retail buyer.” Cal. Civ. Code § 28 Case No.: 21-cv-06074-EJD ORDER GRANTING DEFT.’S MOT. TO DISMISS CLS. 1, 3, 4 OF SECOND AM. COMPL. 6 1 1791.1(c). “Where no duration for an express warranty is stated . . . the duration of the implied 2 warranty period shall be the maximum period [of one year] prescribed above.” Id. Thus, “[a]ccording to [the Act’s] plain language, the implied warranty exists for . . . at United States District Court Northern District of California 3 4 most one year after delivery of the product; after that time, the warranty ceases to exist.” Mexia, 5 174 Cal. App. 4th at 1309. “To say that a warranty exists is to say that a cause of action can arise 6 for its breach,” so that the duration provision “defines the time period during which the warranty 7 can be breached.” Id. A claim for breach of implied warranty may therefore arise for up to one 8 year following the date of sale. Id. (noting the “change from the Uniform Commercial Code, 9 under which the implied warranty could be breached only at the time of delivery”). The Act’s 10 implied warranty may be breached at the time of sale or during the warranty period even if the 11 defect causing the breach is latent and not discovered for months or years after a sale. Id. at 1305; 12 see also Flat v. Ford Motor Co., 678 F. Supp. 3d 1138, 1141 (N.D. Cal. 2023) (“Mexia concluded 13 that the implied warranty of merchantability may be breached by a latent defect undiscoverable at 14 the time of sale but must occur no later than the durational limit set forth in Section 1791.1(c).”) 15 (citation omitted). A four-year statute of limitations applies to claims brought under the Song- 16 Beverly Act. Mexia, 174 Cal. App. 4th at 1306 (citing Cal. Com. Code § 2725(1)).2 17 Defendant argues that Plaintiffs have failed to allege when they purchased the Data 18 Storage Devices, and thus can neither satisfy the four-year statute of limitations nor plead a related 19 element of the breach claim, i.e., that any security vulnerability existed within the warranty period. 20 See Mot. 9–12. Plaintiffs counter that the date of purchase is irrelevant to this action because 21 “[n]o harm befell Plaintiffs then.” Opp’n 7. Plaintiffs argue that Defendant knowingly put forth 22 (and heavily marketed) a defective web portal that was required for the remote operation of the 23 Data Storage Devices, so that Defendant remained necessary for Plaintiffs’ use of the Data Storage 24 25 26 27 28 2 The Court applies California’s statute of limitations because it has diversity jurisdiction over this action. See SAC ¶ 19 (alleging class action diversity jurisdiction under 28 U.S.C. § 1332(d)); G & G Prods. LLC v. Rusic, 902 F.3d 940, 946 (9th Cir. 2018) (“Because our jurisdiction rests on the parties’ diversity of citizenship, we apply substantive state law, including state law regarding statutes of limitations and tolling.”) (citations omitted). Case No.: 21-cv-06074-EJD ORDER GRANTING DEFT.’S MOT. TO DISMISS CLS. 1, 3, 4 OF SECOND AM. COMPL. 7 1 Devices and was accordingly capable of a warranty breach “well into any recognizable applicable 2 limitations period.” Id. at 6–7. Plaintiffs concede that a claim generally accrues at the time of 3 breach, but argue that their claim did not accrue until the hackers deleted their Stored Data on June 4 23, 2021. Id. at 6–8. Plaintiffs argue that their initiation of this lawsuit in August 2021 was within 5 the four-year statute of limitations applicable to a June 2021 breach, or even the discovery of the 6 2018 Vulnerability, and that the SAC sufficiently alleges the facts of the breach of the implied 7 warranty. Id. at 7–8 & n.1. United States District Court Northern District of California 8 Mexia unambiguously instructs that the Song-Beverly Act’s duration provision “defines 9 the time period during which the [implied] warranty can be breached” as running from the time of 10 delivery to a maximum of one year after delivery. Mexia, 174 Cal. App. 4th at 1309. The Court 11 therefore rejects Plaintiffs’ argument—for which Plaintiffs offer no legal support—that 12 Defendant’s ongoing maintenance of the allegedly defective web portal continuously extended the 13 warranty period. See Opp’n 6–8. Because Plaintiffs filed this action on August 6, 2021, the four- 14 year statute of limitations requires that the breach of the implied warranty have occurred no earlier 15 than August 6, 2017, and thus Plaintiffs must have purchased the Data Storage Devices no earlier 16 than August 6, 2016. The SAC contains no allegations establishing the date of purchase of any 17 Plaintiff’s Data Storage Device. See generally SAC. Plaintiffs argue that the breach occurred 18 during June 2021 cyber attack or when the 2018 Vulnerability was first identified, see Opp’n 7–8 19 & n.1, but do not allege facts sufficient to show that either date is within the one-year warranty 20 period during which a claim can arise. The Court therefore finds that Plaintiffs’ Song-Beverly Act 21 claim is both time-barred and insufficiently pled. 22 The Court made the same finding in the FAC Order, dismissing the claim “with leave to 23 amend to assert . . . when the devices were purchased.” FAC Order 11. Given that Plaintiffs filed 24 the SAC with no such allegations, the Court finds that amendment would be futile, and will 25 dismiss the claim without leave to amend. The Court therefore does not and need not address the 26 parties’ arguments regarding the sufficiency of the allegations regarding the location of Mr. 27 Sorial’s purchase of his Data Storage Device. See Mot. 12; Opp’n 8. 28 Case No.: 21-cv-06074-EJD ORDER GRANTING DEFT.’S MOT. TO DISMISS CLS. 1, 3, 4 OF SECOND AM. COMPL. 8 2. 1 Plaintiffs assert a claim for violation of each of the unfair, unlawful, and fraudulent prongs 2 United States District Court Northern District of California UCL 3 of the UCL, and seek equitable relief including “restitution[,] . . . disgorgement o[f] ill-gotten 4 gains, refunds of moneys, interest, reasonable attorneys’ fees, filing fees, and . . . costs.” SAC ¶ 5 162. See SAC ¶ 162; see id. ¶¶ 150–62.3 A plaintiff seeking equitable relief under the UCL must 6 first establish that she lacks an adequate remedy at law. Sonner v. Premier Nutrition Corp., 971 7 F.3d 834, 844 (9th Cir. 2020) (citations omitted). Defendant argues that Plaintiffs’ UCL claim 8 must be dismissed because Plaintiffs fail to show they lack an adequate alternative remedy at law. 9 See Mot. 12–15. Plaintiffs admit that they seek damages for the same conduct underlying their 10 UCL claim, but argue that the Court has equitable jurisdiction over the UCL claim because they 11 also seek remedies without an alternative at law. See Opp’n 9. However, the identified remedy is 12 an order requiring Defendant to implement or maintain security solutions addressing the 13 vulnerabilities in the web portal, see id., which would constitute injunctive relief for which 14 Plaintiffs have not established Article III standing, see supra, at Part III(A). The sole allegation to 15 which Plaintiffs point requests the same injunctive relief. See SAC ¶ 161; Opp’n 9. The Court 16 finds that Plaintiffs once again fail to allege that they lack an adequate remedy at law, so that the 17 UCL claim must be dismissed. See, e.g., In re Cal. Gasoline Spot Mkt. Antitrust Litig., No. 20-cv- 18 03131, 2021 WL 1176645, at *8 (N.D. Cal. Mar. 29, 2021) (collecting cases dismissing UCL 19 claims at pleading stage for failure to allege lack of adequate remedy at law). Defendant’s 20 remaining arguments in support of dismissing the UCL claim, see Mot. 15–20, are moot. 21 The Court granted Defendant’s motion to dismiss the FAC’s UCL claim on the same 22 ground. See FAC Order 15. It therefore finds that granting further leave to amend would be 23 futile. 24 3. Unjust Enrichment Plaintiffs assert a claim for unjust enrichment on the basis that they did not receive the 25 26 27 28 The SAC also alleges a request for injunctive relief, which is unavailable due to the Court’s finding that Plaintiffs lack the requisite Article III standing. See supra, at Part III(A). Case No.: 21-cv-06074-EJD ORDER GRANTING DEFT.’S MOT. TO DISMISS CLS. 1, 3, 4 OF SECOND AM. COMPL. 9 3 1 benefit of their bargain when purchasing Defendant’s Data Storage Devices, and seek restitution 2 and disgorgement. See SAC ¶¶ 163–70. Defendant argues that the unjust enrichment claim, like 3 the UCL claim, is a request for equitable relief that is barred under Sonner because Plaintiffs have 4 an adequate remedy at law, i.e., damages. See Mot. 20–21. Defendant additionally states that it 5 previously moved to dismiss the claim on the ground that unjust enrichment is not a standalone 6 claim, and that the Court denied the motion and construed the unjust enrichment claim as a quasi- 7 contract claim for restitution. Id. at 20 (citing FAC Order 16). Plaintiffs respond that the Court 8 denied Defendant’s motion to dismiss the FAC’s unjust enrichment claim, so that Defendant 9 should not be permitted another opportunity to dismiss the unchanged claim. See Opp’n 12. United States District Court Northern District of California 10 The Court first notes that Federal Rule of Civil Procedure 12 provides that “a party that 11 makes a motion under this rule must not make another motion under this rule raising a defense or 12 objection that was available to the party but omitted from its earlier motion.” Fed. R. Civ. P. 13 12(g)(2). Where Rule 12(b)(6) motions are concerned, “a defendant who fails to assert a failure- 14 to-state-a-claim defense in a pre-answer Rule 12 motion” generally “cannot assert that defense in a 15 later pre-answer motion under Rule 12(b)(6).” In re Apple iPhone Antitrust Litig., 846 F.3d 313, 16 318 (9th Cir. 2017); see also Fed. R. Civ. P. 12(h)(2) (providing that omitted 12(b)(6) defense may 17 be raised in later 12(c) motion). However, the Ninth Circuit has recognized that “[d]enying late- 18 filed Rule 12(b)(6) motions and relegating defendants to [Rule 12(c), e.g.] can produce 19 unnecessary and costly delays,” and determined that it will “generally be forgiving of a district 20 court’s ruling on the merits of a late-filed Rule 12(b)(6) motion.” Id. at 318–19; see also, e.g., 21 Alaei v. Gov’t Emps. Ins. Co., No. 20-cv-00262, 2021 WL 5303268, at *4 (S.D. Cal. Nov. 15, 22 2021) (“A district court may exercise its discretion to adjudicate a defense or objection that would 23 normally be foreclosed by Rule 12(g)(2) if doing so advances the efficient administration of 24 cases.”) (citing In re Apple, 846 F.3d at 319). Given this guidance, the Court will address 25 Defendant’s Sonner argument despite Defendant’s prior failure to raise the available argument. 26 Although Sonner itself discussed only the requirement that a plaintiff asserting claims for 27 equitable relief under the UCL and California’s Consumers Legal Remedies Act (“CLRA”) must 28 Case No.: 21-cv-06074-EJD ORDER GRANTING DEFT.’S MOT. TO DISMISS CLS. 1, 3, 4 OF SECOND AM. COMPL. 10 United States District Court Northern District of California 1 first establish a lack of adequate remedy at law, district courts apply the requirement to unjust 2 enrichment claims as well. See, e.g., Sharma v. Volkswagen AG, 524 F. Supp. 3d 891, 907 (N.D. 3 Cal. 2021) (“In light of the foregoing [discussion of Sonner], [plaintiffs] ‘must establish that they 4 lack an adequate remedy at law before securing equitable restitution for past harm’ under their 5 UCL, CLRA, and unjust enrichment claims.”) (alterations omitted) (quoting Sonner, 971 F.3d at 6 844); Forrett v. Gourmet Nut, Inc., 634 F. Supp. 3d 761, 768 (N.D. Cal. 2022) (holding that 7 Sonner’s pleading requirement applies generally to claims for equitable relief, including unjust 8 enrichment). Plaintiffs’ unjust enrichment claim seeks the same equitable relief as their UCL 9 claim, and the Court dismisses the claim without leave to amend for the same reasons explained in 10 its discussion of the UCL claim. See supra, at Part III(B)(2). 11 IV. 12 13 14 CONCLUSION For the foregoing reasons, the Court hereby ORDERS that: 1. Defendant’s motion to dismiss is GRANTED, such that: a. Plaintiffs’ claims for violation of the Song-Beverly Act, violation of the 15 UCL, and unjust enrichment are DISMISSED WITHOUT LEAVE TO 16 AMEND; and 17 b. Plaintiffs’ requests for injunctive relief are DISMISSED WITHOUT LEAVE TO AMEND. 18 19 20 21 2. Plaintiffs’ claim for negligence / failure to warn is the sole remaining claim in this action. 3. Defendant’s answer is due within 14 days of the entry of this order. 22 23 24 IT IS SO ORDERED. Dated: June 5, 2024 25 26 27 28 EDWARD J. DAVILA United States District Judge Case No.: 21-cv-06074-EJD ORDER GRANTING DEFT.’S MOT. TO DISMISS CLS. 1, 3, 4 OF SECOND AM. COMPL. 11

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