ORDER GRANTING-IN-PART, DENYING-IN-PART MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT
Hewlett-Packard Co. (“Defendant” or “HP”) moves to dismiss Plaintiff David Elias’s Second Amended Complaint based on Federal Rules of Civil Procedure 12(b)(6) and 9(b). The Court found the motion to be appropriate for disposition without oral argument pursuant to Civil Local Rule 7-l(b), and vacated the hearing set for May 9, 2013. Having considered the submissions of the parties and the relevant law, the Court hereby GRANTS-IN-PART and DENIES-IN-PART Defendant’s Motion to Dismiss.
I. BACKGROUND
A. Factual Allegations
Plaintiff alleges that, on or about June 10, 2010, he purchased an HP Pavilion Slimline s5305z computer through HP’s website. Second Am. Compl. (“SAC”) ¶ 30, ECF No. 29. Plaintiff opted to include a “recommended” graphics card, which HP marketed and advertised as a “faster, higher performance, more powerful and/or upgraded” computer component. SAC ¶¶ 16, 30. Although Advanced Micro Devices (“AMD”) — the manufacturer of the graphics card that HP offered and that Plaintiff selected — expressly recommended a 300-watt or greater power supply for the specific graphics card that Plaintiff selected, Plaintiffs Slimline computer was equipped with only a 220-watt power supply. SAC ¶¶ 2, 81, 32. HP neither informed Plaintiff that AMD recommended a greater power supply than what was included with the Slimline computer, nor afforded Plaintiff the option of upgrading his computer’s 220-watt power supply unit at the time of purchase. SAC ¶ 31. Further, at no time did HP inform Plaintiff that purchasing the graphics card with the Slimline’s standard 220-watt power supply would decrease the computer’s performance, efficiency, and life-span, and increase its safety hazards, including the risk of catching fire. SAC ¶ 32.
In the months following the Slimline purchase, but “well before the end of the first year of ownership,” Plaintiff’s computer began to “randomly freeze, restart, or shut down.” SAC ¶ 33. Approximately 17 months after purchasing his computer, the computer “shorted out,” “melted,” and was damaged beyond repair. SAC ¶¶ 3, 33. Plaintiff then learned that the wattage rating of the included power supply was well below what was needed or recommended to run the computer configuration that he selected through the HP website at the time of purchase, and that the inadequacy of the power supply caused his computer problems. SAC ¶ 33. Plaintiff contacted HP for assistance, but HP “would not replace the computer or even agree to repair it.” SAC ¶ 33.
Plaintiff now seeks to represent a nationwide class including any person who, between December 7, 2007, and the present, “purchased ... a computer, directly
B. Procedural History
Plaintiff filed a putative class action complaint against Defendant in the Santa Clara County Superior Court on December 9, 2011, ECF No. 1-2, and subsequently filed his First Amended Complaint (“FAC”) on December 22, 2011, ECF No. 1-3. HP removed the case to this Court on January 26, 2012. ECF No. 1. The case was assigned to the undersigned judge on January 31, 2012. ECF No. 7. HP then filed a Motion to Dismiss Plaintiffs First Amended Complaint based on Federal Rules of Civil Procedure 12(b)(6) and 9(b). Mot. to Dismiss Pl.’s FAC, ECF No. 11. On October 11, 2012, this Court granted Defendant’s Motion to Dismiss the FAC with leave to amend. See Order Granting Mot. to Dismiss,
On October 22, 2012, Plaintiff filed a Second Amended Complaint. ECF No. 29. Plaintiffs Second Amended Complaint narrows the proposed class to only those people who, like Plaintiff, customized and purchased their computers directly through HP’s website, rather than purchasing them from a third-party retailer, and sets forth additional factual allegations to support his claims for relief. See Opp’n at 1.
On November 6, 2012, HP filed a Motion to Dismiss Plaintiffs Second Amended Complaint. See Mot. to Dismiss Pl.’s SAC. (“Mot.”), ECF No. 30. HP contends that none of Plaintiffs changes or new allegations serve to cure the deficiencies identified by the Court previously. Id. at 2. Plaintiff filed a timely opposition to HP’s second Motion to Dismiss, see Pl.’s Opp. to Def.’s Mot. to Dismiss Pl.’s SAC (“Opp’n”), ECF No. 31, to which HP filed a reply, see Def.’s Reply Supp. Mot. to Dismiss Pl.’s SAC (“Reply”), ECF No. 32.
II. LEGAL STANDARDS
A. Rule 12(b)(6)
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss an action for failure to allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
However, a court need not accept as true allegations contradicted by judicially noticeable facts, Shwarz v. United States,
B. Rule 9(b)
Claims sounding in fraud or mistake are subject to the heightened pleading requirements of Federal Rule of Civil Procedure 9(b), which require that a plaintiff alleging fraud “must state with particularity the circumstances constituting fraud.” Fed. R.Civ.P. 9(b); see Kearns v. Ford Motor Co.,
C. Leave to Amend
If a court determines that a complaint should be dismissed, it must then decide whether to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend “shall be- freely given when justice so requires,” bearing in mind “the underlying purpose of Rule 15 ... [is] to facilitate decision on the merits, rather than on the pleadings or technicalities.” Lopez v. Smith,
III. DISCUSSION
Plaintiffs Second Amended Complaint raises six causes of action: (1) violation of the Consumers Legal Remedies Act (“CLRA”), California Civil Code §§.1750 et seq.; (2) violation of California’s False Advertising Law (“FAL”), California Business and Professions Code §§ 17500 et seq.; (3) fraud; (4) breach of express warranty pursuant to California Commercial Code §§ 2101 et seq.; (5) violation of the Song-Beverly Consumer Warranty Act, Civil Code §§ 1790 et seq.; and (6) violation of California’s Unfair Competition Law (“UCL”), California Business and Professions Code §§ 17200 et seq. The Court first addresses Plaintiffs breach of warranty claims, then addresses Plaintiffs claims sounding in fraud, and finally addresses Plaintiffs remaining UCL claims.
1. Breach of Express Warranty
HP’s -written warranty states, in pertinent part, that, “HP warrants that the HP Hardware Products that you have purchased or leased from HP are free from defects in materials or workmanship under normal use during the Limited Warranty Period [of one year].” SAC ¶ 78. Plaintiffs fourth cause of action alleges that HP breached its express warranty by “selling computers with insufficient power supplies” which “could not and would not function properly under normal use, within the first year of operation.” SAC ¶ 81. HP argues that Plaintiffs breach of warranty claim must fail as a matter of law because Plaintiffs computer functioned properly throughout the one-year period and beyond. Reply at 2.
An express warranty is “a contractual promise from the seller that the goods conform to the promise. If they do not, the buyer is entitled to recover the difference between the value of the goods accepted by the buyer and the value of the goods had they been as warranted.” Daugherty v. Am. Honda Motor Co.,
In the Court’s October 11, 2012 Order granting HP’s Motion to Dismiss the FAC, the Court found that Plaintiff failed to state a claim for breach of express warranty because Plaintiff “[did] not allege any facts regarding the likelihood that the [claimed defect] would lead to malfunction [within the one year warranty period].” Order,
Plaintiffs Second Amended Complaint attempts to cure these deficiencies. First, Plaintiff specifically alleges that the defects in his computer manifested during the one-year warranty period. According to Plaintiff, “Defendants’ computers, given their inadequate power supplies, could not and would not function properly under normal use, within the first year of operation. Rather, they would (and in Plaintiffs case, did) randomly freeze, restart, and shut down during that period.” SAC ¶ 81 (emphasis added); cf. Daugherty,
For purposes of this Motion, the Court finds that Plaintiff has sufficiently alleged facts which, if true, may demonstrate that HP breached its express warranty. Plaintiff has alleged facts that the power supply in his computer was insufficient for the computer’s components, that the insufficiency was likely to result in malfunctions beyond what could be considered normal troubleshooting, and that Plaintiff actually experienced these issues during the express warranty period. Thus, the Court finds that Plaintiffs amended allegations are sufficient to survive a motion to dismiss. Accordingly, Defendant’s Motion to Dismiss Plaintiffs fourth cause of action is DENIED.
2. Song-Beverly Consumer Warranty Act
Plaintiffs fifth cause of action is that HP’s sale of the computers at issue violates the Song-Beverly Consumer Warranty Act, which provides that “every sale of consumer goods that are sold at retail in [California] shall be accompanied by the manufacturer’s and the retail seller’s implied warranty that the goods are merchantable.” Cal. Civ.Code § 1792. By its terms, the Song-Beverly Act applies only to goods sold in California. Id. To be merchantable, consumer goods must: “(1) [р] ass without objection in the trade under the contract description^] (2) [be] fit for the ordinary purposes for which such goods are used[;] (3) [be] adequately contained, packaged, and labeled[; and] (4) [с] onform to the promises or affirmations of fact made on the container or label.” Cal. Civ.Code § 1791.1(a). The implied warranty “is coextensive in duration with an express warranty which accompanies the consumer goods,” but “in no event shall such implied warranty have a duration of less than 60 days nor more than one year following the sale of new consum
The implied warranty of merchantability does not “impose a general requirement that goods precisely fulfill the expectation of the buyer. Instead, it provides for a minimum level of quality.” Am. Suzuki Motor Corp. v. Superior Court,
HP argues that the Song-Beverly Act does not apply to Plaintiff because his computer malfunctioned seventeen months after its sale, which is beyond the one-year maximum duration set forth in Section 1791.1(c). Mot. at 7. Plaintiff responds by arguing that the Second Amended Complaint alleges facts which demonstrate that, “[i]n the months following the computer purchase, and well before the end of the first year of ownership, Plaintiffs computer began to randomly freeze, restart, or shut down,” and that these problems rendered the computer unfit for its ordinary use. Opp’n at 13 (citing SAC ¶¶27, 33, 81); see also SAC ¶ 91. HP disputes that these malfunctions are anything other than routine. Reply at 4. While the Court expresses some skepticism that Plaintiffs random shutdowns and reboots were so pervasive or problematic as to render his computer “unfit for its ordinary purpose,” the Court finds that, as described in the previous section, Plaintiffs additional factual allegations are sufficient to state a claim for relief for purposes of a motion to dismiss.
HP argues further that Plaintiffs Song-Beverly Act claim fails because Plaintiff did not present the product to an authorized representative of HP during the one-year warranty period. Specifically, HP cites to Gonzalez v. Drew Indus.,
Here, Plaintiff alleges that while the malfunctions took place during the warranty period, the source of the malfunction— the insufficient power supply — was not discovered until the Plaintiffs computer short-circuited after 17 months of ownership. SAC ¶ 33. At the time of discovery,
B. Fraud-Based Claims
Plaintiffs first, second, third, and sixth causes of action sound in fraud and are therefore all subject to the heightened pleading requirement of Rule 9(b) of the Federal Rules of Civil Procedure. See Kearns,
The CLRA prohibits “‘unfair methods of competition and unfair or deceptive acts or practices’ in transactions for the sale or lease of goods to consumers.” Daugherty,
California’s FAL makes it unlawful for a business to disseminate any statement “which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading.” Cal. Bus. & Prof. Code § 17500. “In determining whether a statement is misleading under the statute, the primary evidence in a false advertising case is the advertising itself.” Colgan,
California’s UCL provides a cause of action for business practices that are (1) unlawful, (2) unfair, or (3) fraudulent. Cal. Bus. & Prof.Code § 17200. Its coverage has been described as “sweeping,” and its standard for wrongful business conduct is “intentionally broad.” In re First Alliance Mortg. Co.,
The standard for all three statutes is the “reasonable consumer” test, which requires a plaintiff to show that members of the public are likely to be deceived by the business practice or advertising at issue. See Williams,
In addition to Plaintiffs CLRA, FAL, and UCL claims premised on fraud, Plaintiff brings a cause of action for common law fraud. Under California law, the indispensable elements of a fraud claim based on deceit include: (1) misrepresentation (such as false representation, concealment, or nondisclosure); (2) knowledge of falsity; (3) intent to defraud or induce reliance; (4) justifiable reliance; and (5) resulting damages. Lazar v. Superior Court,
Plaintiff articulates two general theories to show that Defendants’ conduct was misleading and deceptive to both him and to a reasonable consumer. First, Plaintiff alleges that HP “affirmatively misrepresented to the Plaintiff, and similarly situated customers, that the computers would have ample power to reliably operate all upgraded components that could be chosen at the time of purchase.” SAC ¶ 1. Second, Plaintiff alleges that HP fraudulently and deceptively failed to disclose that, by allowing customers to upgrade their computers with higher performance components, HP’s computers were underpowered and, consequently, “would necessarily [suffer from] (l)[a] decrease ... [in] performance, efficiency, life-span and (2)[ an] increase i[n] safety hazards, including the risk of it catching, or starting a, fire.” SAC ¶ 32.
1. Affirmative Misrepresentations
Plaintiff alleges that HP’s conduct was likely to deceive the public, and did in fact deceive him, because HP affirmatively misrepresented that the computers at issue possessed sufficient power supplies. In his FAC, Plaintiff relied on several statements made by HP’s website which advertise the “ultra-reliable performance,” “full power and performance,” and “versatile, reliable system” of the computers at issue. FAC ¶ 24. Similar statements are found on webpages for particular product models, advertising that a product “delivers the power you need” or is “packing power and style into your tightest spaces.” FAC ¶ 25. In the Court’s prior Order, the Court found that these statements were merely non-actionable puffery, and that they did not rise to the level of affirmative representations about a verifiable fact. See Order,
In response to the Court’s Order, Plaintiff has added a new factual allegation in
HP argues that Plaintiffs misrepresentation claim still fails despite amendment because the statements about performance, power, and compact size constitute non-actionable puffery. As the Ninth Circuit explained in Cook, Perkiss and Liehe, Inc. v. Northern Cal. Collection Serv., Inc.,
The Court agrees with HP that, despite Plaintiffs amendments to his complaint, the alleged statements in the SAC still only amount to non-actionable puffery. As the Court held in its previous Order, generalized advertisements that a computer is “ultra-reliable” or “packed with power” say nothing about the specific characteristics or components of the computer. See Order,
Plaintiffs arguments that these statements must be viewed in their totality because they were on Defendant’s website and the computers were directly sold by Defendant does little to distinguish the cases cited by the Court; the statements are all mere puffery, and the combination of several “puff statements does not automatically create an actionable misrepresentation. Cf. Williams,
Accordingly, Plaintiff does not sufficiently allege that HP made affirmative misrepresentations in regard to the power supplies of the computers at issue for the purpose of bringing claims under the CLRA, FAL, UCL, or for common law fraud. The Court GRANTS HP’s Motion to Dismiss these claims with prejudice.
2. Fraudulent Omissions Claims
Plaintiff also alleges that HP “fraudulently and deceptively” failed to inform him that the HP computer that he was purchasing did not include an adequate power supply to properly operate the computer with the upgraded graphics card and that, as a result of the inadequate power supply, “the computer would necessarily be less efficient, less powerful, under or poorly perform, have a shortened life expectancy and increase the safety risks due to overheating and potentially internal fires.” SAC ¶ 66.
For an omission to be actionable under the CLRA and UCL, “the omission must be contrary to a representation actually made by the defendant, or an omission of a fact the defendant was obliged to disclose.” Daugherty,
(1) when the defendant is the plaintiffs fiduciary; (2) when the defendant has exclusive knowledge of material facts not known or reasonably accessible tothe plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations that are misleading because some other material fact has not been disclosed.
Collins v. eMachines, Inc.,
In addition, in order to prevail on a common law fraudulent omission claim, a plaintiff must show the following: “(1) the defendant concealed or suppressed a material fact; (2) the defendant was under a duty to disclose the fact to the plaintiff; (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff; (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” Jordan v. Paul Financial, LLC,
The parties appear to agree that, when “a plaintiffs claim is predicated on a manufacturer’s failure to inform its customers of a product’s likelihood of failing outside the warranty period, the risk posed by such asserted defect cannot be ‘merely’ the cost of the product’s repair ... rather, for the omission to be material, the failure must pose ‘safety concerns.’ ” Smith v. Ford Motor Co.,
However, the parties dispute whether, under California law, an omission-based claim for failures during the warranty period must be linked to a safety-related concern or affirmative misrepresentation. Compare Mot. at 13, with Opp’n at 20-21. HP contends that, absent an actionable misrepresentation, Plaintiffs “fraudulent omissions [are] only actionable if he is able to establish some kind of safety issue.” Reply at 11-12 (citing the Court’s previous Order relating to post-warranty claims). Plaintiff argues that for material problems which arise during the warranty period, there is no requirement that those problems be related to affirmative misrepresentations or safety concerns. Opp’n at 21. In support of its argument, HP cites to Ford Motor Co. and Wilson v. Hewlett-Packard Co.,
Several district court decisions agree that Wilson does not preclude non-safety based omission claims for malfunctions during the warranty period. See, e.g., Donohue v. Apple, Inc.,
a. Post-Warranty Claims
As established above, Plaintiff has failed to allege that HP made affirmative misrepresentations. Therefore, Plaintiffs fraudulent omission claims for failures outside the warranty period are only actionable if he is able to establish some kind of safety issue. See Ford Motor Co.,
To set forth a duty to disclose based on an unreasonable safety hazard, a plaintiff must allege an instance of physical injury or a safety concern as well as a “sufficient nexus” between the alleged defect and the safety issue. See Wilson,
Here, Plaintiff alleges a similar safety hazard — that due to the insufficient power supply, HP’s computers were more likely to “overheat, short out, melt and catch fire, creating a significant safety risk.” SAC ¶ 3. However, Plaintiff does not allege that his computer or anyone else’s computer
Thus, the Court GRANTS with prejudice HP’s Motion to Dismiss Plaintiffs CLRA, UCL, and common law fraud claims that are based on Defendants’ alleged post-warranty safety-based fraudulent omission claims (first, third, and sixth causes of action). See Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc.,
b. Warranty Period Claims
Plaintiff also claims that HP’s omissions regarding the sufficiency of the power supply are actionable for the failures that Plaintiffs computer experienced during the warranty period: freezing, rebooting, and randomly restarting. See Opp’n at 20-21. As described above, omissions of material facts are actionable for non-safety related malfunctions so long as the problems occurred during the warranty period. Given that Plaintiffs SAC includes new factual allegations regarding computer malfunctions that allegedly manifested during the warranty period, the Court proceeds to consider Plaintiffs warranty period claims regarding fraudulent omissions.
Plaintiff alleges that HP deceived him by omission under all four circumstances in which a duty to disclose may arise: “(1) when the defendant is the plaintiffs fiduciary; (2) when the defendant has exclusive knowledge of material facts not known or reasonably accessible to-the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations that are misleading because some other material fact has not been disclosed.” Collins,
Under the CLRA and UCL, “plaintiffs must sufficiently allege that a defendant was aware of a defect at the time of sale to survive a motion to dismiss.” Wilson,
In contrast, Plaintiffs SAC sets forth few facts to support Plaintiffs allegations that HP knew that the computer’s power supply unit was inadequate at the time of Plaintiffs purchase. SAC ¶¶ 1, 65, 66. At best, Plaintiff cites to recommendations by manufacturers of minimum power supplies for certain graphics cards, though does not allege that HP knew of these manufacturer recommendations at the time of sale. See SAC ¶ 20. Likewise, Plaintiff alleges that HP has a page on its website entitled “Troubleshooting Power Supply Issues,” which discusses the need for adequate power supplies. See SAC ¶ 28. However, this fact does not demonstrate that HP was aware that the specific customizable computers at issue in this case lacked sufficient power supplies when Plaintiff purchased the Slimline computer in June of 2010. Further, Plaintiff alleges that, at some unspecified time, one HP customer told another HP customer that “Slimline PCs are not meant to be gaming PCs. The power supplies are too small and the cabinets are too small to expel the heat that big gaming video cards generate.” SAC ¶ 29. This is insufficient to impute knowledge on HP. See Oestreicher,
Accordingly, the Court finds that Plaintiff has not sufficiently alleged enough facts to support an inference that HP knew of the power inadequacies at the time of sale. Consequently, Plaintiff also has not sufficiently alleged that HP “intentionally” concealed or suppressed this information. See Mui Ho v. Toyota Motor Corp.,
Thus, the Court GRANTS HP’s Motion to Dismiss Plaintiffs CLRA, UCL, and common law fraud claims that are based solely on Defendants’ alleged fraudulent omissions regarding malfunctions that manifested during the warranty period (first, third, and sixth causes of action). Because Plaintiff has not previously had an opportunity to cure this deficiency and may easily do so, the Court grants Plaintiff leave to amend these claims.
C. Plaintiffs Remaining UCL Claims
1. Unfair Prong of the UCL
Plaintiff also alleges that Defendant’s acts and omissions were unfair and that Defendant engaged in these actions in order to increase its profits. FAC ¶ 101. In McKell v. Wash. Mut, Inc.,
The Court previously rejected this claim on the grounds that Plaintiff made only conclusory statements that HP’s alleged conduct was unfair, but did not reference any established public policy that HP’s actions have violated or claim that HP’s conduct is immoral, unethical, oppressive, or unscrupulous. Plaintiff has not materially amended his complaint to address these deficiencies. Plaintiff does contend in his Opposition, however, that “HP appears to agree that its practices were improper” because “after this suit was filed, [HP] appears to have stopped offering customers the option to select upgraded, power-hungry components in the models at issue in the complaint.” Opp’n at 2. The Court may not consider this allegation for purposes of HP’s Motion to Dismiss as it was not referenced in the SAC. See Broam v. Bogan,
2. Unlawful Prong of the UCL
The unlawful prong of the UCL “borrows violations of other laws and treats them as unlawful practices,” which the UCL then “makes independently actionable.” Cel-Tech Commc’ns, Inc., 20
IY. CONCLUSION
For the foregoing reasons, the Court GRANTS-IN-PART and DENIES-IN-PART Defendant’s Motion to Dismiss. The Court DENIES HP’s Motion to Dismiss Plaintiffs fourth and fifth causes of action based on breach of express warranty and violation of the Song-Beverly Consumer Warranty Act. The Court GRANTS HP’s Motion to Dismiss Plaintiffs first, second, third, and sixth causes of action, brought for violations of the CLRA, FAL, UCL, and common law fraud. Because Plaintiff has already had an opportunity to amend his claims based on affirmative misrepresentations, but has failed to do so adequately, the Court dismisses these claims with prejudice. Likewise, because Plaintiff has had the opportunity to amend his safety-based omission claims, but has not sufficiently cured the deficiencies identified previously, the Court dismisses these claims with prejudice. However, because Plaintiff may allege facts to cure the deficiencies regarding his fraudulent omissions claims that are predicated on malfunctions that manifested during the warranty period, as well as his claims for unlawful and unfair conduct under the UCL, these claims are denied without prejudice.
Should Plaintiff elect to file a Third Amended Complaint curing the deficiencies discussed herein, he shall do so within 30 days of the date of this Order. Failure to meet the 30 day deadline to file an amended complaint or failure to cure the deficiencies identified in this Order will result in a dismissal with prejudice. Plaintiff may not add new causes of action or parties without leave of the Court or stipulation of the parties pursuant to Federal Rule of Civil Procedure 15.
IT IS SO ORDERED.
Notes
. According to Plaintiff, Advanced Micro Devices "supplies a substantial percentage of the processors incorporated into Defendant's computers (including the ones incorporated in the computer Defendant sold to Plaintiff).” SAC ¶ 2.
. The acts and practices that Plaintiff challenges include: (1) making improper representations regarding the source or certification of the goods sold, (2) making improper representations regarding association with or certification by another of the goods it sold, (3) representing that its goods have characteristics that they do not have, and (4) representing that its goods are of a particular quality when they are of another. See SAC ¶ 48 (citing Cal. Civ.Code §§ 1770(a)(2), 1770(a)(3), 1770(a)(5), 1770(a)(7)).
. Only Plaintiff's CLRA, UCL, and common law fraud claims appear to be predicated on HP’s alleged fraudulent omissions. See Opp’n at 20.