ORDER GRANTING IN PART AND DENYING IN PART FACEBOOK’S MOTION TO DISMISS
Presently before the Court is Defendant Facebook, Inc.’s (“Facebook”) motion to dismiss Plaintiffs’ consolidated class action complaint. ECF No. 46 (“Mot.”). Plaintiffs timely opposed the motion, ECF No. 54 (“Opp’n”), and Facebook timely replied, .ECF No. 56 (“Reply”); Facebook also filed a request for judicial notice in support of its motion to dismiss. See ECF No. 47. The Court heard oral arguments on Facebook’s motion and request on June 19, 2017. See ECF No. 61. After carefully considering the parties’ written and oral- arguments, the Court hereby GRANTS IN PART and DENIES IN PART Facebook’s motion and request for judicial notice for the reasons set forth below.
I. BACKGROUND
The following factual allegations are taken from Plaintiffs’ Consolidated Amended Class Action Complaint, ECF No. 34 (“Compl.”),, unless otherwise stated, and are therefore accepted as true for the purposes of this motion. See Bell Atlantic Corp. v. Twombly,
Facebook, Inc. operates Facebook.com, a social media service with 1.79 billion monthly active users. Compl. ¶¶ 13-14. Users are not charged to create a Faee-book.com, account. Once an account. is made, users can, among other things, create a profile page, post content, make friends with other users, and view content posted by other users. Id, ¶ 14. Instead of charging, accpunt holders to access Face-book.com, Facebook makes more than 95% of its revenue by. selling advertising services. Id, ¶ 15.
One type of advertising that Facebook sells is video advertisements; where advertisers can pay money to have video displayed to Facebook users. These video advertisements autoplay by default when Facebook users engage-with the platform, but users are allowed to -scroll past auto-playing videos (including paid advertisements) without ever watching more than a few, seconds of the video. Id, at 16. Face-book’s video advertisements are provided
In May 2014, Facebook rolled out new advertising metrics, which included “Average Duration of Video Viewed” (“ADW”) and “Average Percentage of Video Viewed” (“APW”). Id. ¶¶ 20-21, 25. The ADW metric is viewed by many advertisers as one of the most important analytics used in evaluating video advertisement performance.' This is because “the longer people watch an advertisement, the greater the advertisement’s impact on the viewer.” Id. ¶21. After Facebook’s announcement, Plaintiffs, who consist mostly of advertising and marketing professionals and entities, purchased Facebook’s video advertising services with the understanding that these advertising metrics were included in the purchased video advertising services. Id. ¶¶6-11, 23. Facebook never disclosed that these new metrics were not audited or accredited by the Media Rating Council, the marketing industry’s “standard-bearer” for accurate measurements. Id. ¶ 23.
Facebook had previously told advertising purchasers that the ADW would be calculated by dividing the total time spent watching the video by all users by the total number of users who spent any time watching the video. Id. ¶ 26. However, in August 2016, Facebook disclosed in its “Advertising Help Center” that this metric had been improperly calculated. Id ¶ 27. Rather than calculating the ADW by dividing the total time spent watching the video by all users by the total number of users who spent any time watching the video, Facebook had been dividing the total time spent watching the video by all users by only the total number of users who spent three or more seconds watching the video. Id. As a result, the APW was also erroneously calculated because Face-book calculated this metric using the ADW as a calculation input. Id. On or about September 23, 2016, David Fischer, Facebook’s Vice President of Business and Marketing Partnerships, confirmed that, due to Facebook’s miscalculation, Face-book had overstated this ADW metric. Id. ¶28. Moreover, Facebook informed some of its advertisers that the ADW metric was inflated between 60-80%, thus making Facebook’s video advertisements appear as if they were performing better than they actually were. Id. ¶ 33.
Plaintiffs allege Facebook’s misrepresentations induced them to purchase the video advertisement because they “wanted accurate video advertising metrics regarding [ADW] and [APW] so that they could monitor their video advertisements’ performance.” Id. ¶36. Plaintiffs also allege Facebook’s misrepresentations induced them to “continue purchasing video advertisements,” to “purchase additional video advertisements” and to “pay more for Fa-cebook video advertising than they would otherwise have been willing to pay.” Id. ¶¶ 37-38. Lastly, Plaintiffs allege Face-book’s misrepresentations: artificially increased the price of Facebook video advertising, provided Facebook with an unfair competitive advantage over other online
II. REQUEST FOR JUDICIAL NOTICE
As a preliminary matter, the Court first turns to address Facebook’s request for judicial notice prior to addressing Face-book’s motion to dismiss.
a. Legal Standards
In deciding a Rule 12(b)(6) motion, the court generally looks only to the face of the complaint and documents attached thereto. Van Buskirk v. Cable News Network, Inc.,
b. Discussion
Facebook requests judicial notice of five documents: (1) Facebook’s Statement of Rights and Responsibilities (“SRR”) in existence during the Class Period, ECF No. 47-2 (“Duffey Deck”); (2) Facebook’s Self-Serve Ad Terms during the Class Period; (3) Facebook’s Advertising Guidelines during the Class Period; (4) Facebook’s Payment Terms during the' Class Period; and (5) a Facebook Business Post made by David Fischer, Facebook’s Vice President of Business and Marketing Partnerships, on September 23, 2016. ECF No. 47 at 1:11-2:3. Facebook suggests that Plaintiffs
.With regard to document 5, Plaintiffs oppose the Court taking judicial notice of Fischer’s Facebook post because Facebook relies on the Facebook post in its motion to- dismiss to establish the truth of the matters stated in the post — i.e., that the miscalculation “had ‘no impact whatsoever on billing” and that Facebook “promptly fixed the Average Duration Metric discrepancy.” ECF No. 55 at 1:12-28. Face-book-later conceded in its-Reply that it was indeed relying on the post’s statement that “Facebook has fixed the error at issue — as extrinsic evidence in support of its challenge to Plaintiffs’ standing to obtain injunctive relief.” ECF No. 57 at 1: 27-2:1. During oral arguments, the Court probed Facebook’s request by directly asking why judicial notice of Mr. Fischer’s .post is needed at all, to which Facebook replied it did not think judicial notice was needed. ECF No. 63 . at 6:4-8. Accordingly, the Court DENIES Facebook’s request for judicial notice of Mr. Fischer’s Facebook post.
III. MOTION TO DISMISS
a. Legal Standard
Dismissal is appropriate under Rule 12(b)(6) when a plaintiffs allegations fail “to state a claim upon which relief can be granted,” Fed. R. Civ. P. 12(b)(6). Specifically, a plaintiff must plead “enough facts to .state a claim to relief that is ,plausible on its face.” Bell Atlantic Corp. v. Twombly,
In ruling on a motion to dismiss, a court must “accept all material allegations of fact as true and construe the complaint in a light most favorable to the non-moving party.” Vasquez v. L.A. Cty.,
In addition, fraud claims are subject to a heightened pleading standard. “In 'alleging fraud or mistake, a party must state with particularity the-circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b). Allegations of fraud must state “the who, what, when, where, and how” of the misconduct charged, as well as “what is false .or misleading about a statement, and why it is false.” Vess v. Cibar-Geigy Corp. USA,
b. Discussion
i. Plaintiffs’ UCL Claim
“To bring, a UCL. claim, a plaintiff must show either an (1) unlawful, unfair, or fraudulent business act or practice, or (2) unfair, deceptive, untrue or misleading advertising.” Lippitt v. Raymond James Fin. Servs. Inc.,
1. Plaintiffs Fail to Allege Actual Reliance
To establish standing under the UCL, a plaintiff must demonstrate that he or she “suffered, an injury in fact and [ ] lost money or property as a result of the unfair competition.” Cal. Bus. & Prof. Code § 17204 (West 2017) (emphasis add: ed). Although the UCL does not define the meaning of the phrase “as a result of,” see In re Tobacco II Cases,
Facebook argues Plaintiffs lack standing to bring forth their UCL claim because Plaintiffs have not shown actual reliance — i.e., Plaintiffs have not alleged they actually saw either .of the erroneous metrics at issue and because of that metric decided to spend more money on Face-book video ads. Mot. at 8:7-11. Plaintiffs counter that they do have standing because their complaint states they were “induced” by the metric, which would necessarily require Plaintiffs to see and rely on the inflated metric. Opp’n at 7:25-28. The Court agrees with Facebook. Indeed, as Facebook correctly points out. Plaintiffs never state in their complaint that they
Accordingly, the Court GRANTS Face-book’s motion to dismiss Plaintiffs’ UCL claim WITHOUT PREJUDICE. While this may end the Court’s inquiry into Plaintiffs’ UCL claim, for the benefit of the parties the Court shall proceed to address Facebook’s other contentions.
2. Plaintiffs Meet the Rule 9(b) Heightened Pleading Standard
At the outset, the Court notes that both parties agree that Federal Rule of Civil Procedure 9(b) applies here. See Mot. at 9; Opp’n at 8-10. Thus, the parties acknowledge Plaintiffs must state “the who, what, when, where, and how” of the misconduct charged, as well as “what is false or misleading about a statement, and why it is false.” Vess,
Facebook alleges Plaintiffs’ UCL claim should be dismissed because it fails to meet Rule 9(b)’s heightened pleading standard. In particular, Facebook alleges: “Plaintiffs fail to allege which specific misrepresentations are at issue, when and where Facebook made those specific misrepresentations, when Plaintiffs viewed or relied on them, and how they did so. Nor do they identify which particular ad campaign they allege to have viewed the particular metrics on.” Mot. at 9:12-15. In contrast, Plaintiffs contend Rule 9(b) does not require such a degree of detail and that the details in their complaint are sufficient to allow Facebook to properly defend itself of the charges. Opp’n at 9.
Aside from the lack of actual reliance discussed above, which dooms Plaintiffs’ UCL claim under Rule 9(b)’s heightened pleading requirement, see In re 5-hour ENERGY Mktg. and Sales Practices Li-
Who: Facebook, Inc. [Compl. ¶¶ 1-2]
What: Reported advertising viewership metrics — specifically, the “Average Duration of Video Viewed” metric and “Average Percentage of Video Viewed” metric — that were inflated by an estimated 60-80% due to a systematic calculation error. [Compl. ¶¶ 2, 27-34]
When: Between May 4, 2014,' and September 23, 2016 [Compl ¶¶ 11, 20 & n. 7, 28, 43]
Where: On the advertising platform that Facebook uses to apprise its video advertisers, including Plaintiffs, how their advertisements are performing (and where advertisers can increase or decrease the budget for their advertisements). [Compl. ¶¶ 19-24]
How: The reported video metrics were misleading because they made video advertisements placed with Facebook appear to receive a higher level of viewer engagement than they actually received. [Compl. ¶¶ 33; 35-41, 56]
Opp’n at 8-9. These facts are sufficient to afford Facebook the opportunity to properly defend itself from Plaintiffs’ allegations. See Chacanaca v. Quaker Oats Co.,
Accordingly, the Court DENIES Face-book’s motion to dismiss Plaintiffs’ UCL claim for failure to meet the Rule 9(b) heightened pleading standard.
3. UCL Unfair Prong Analysis
The UCL does not define what constitutes an “unfair” business practice. Therefore, because this definition “is currently in flux” among California courts, the Ninth Circuit has outlined two tests which courts may apply to evaluate whether a.practice is unfair: (1) the “public-policy” test, and (2) the “balancing” test. Lozano v. AT&T Wireless Servs., Inc.,
Plaintiffs claim that Facebook violated the UCL’s unfair prong because Facebook did not “properly audit and verify the accuracy of its video-advertising metrics,” and that this “practice was [ ] contrary to legislatively declared and public policies that- seek to protect consumers from misleading . statements.... ” Compl. ¶ 57. Plaintiff also alleges ’ Facebook’s “failure to employ- reasonable auditing and verification procedures gave it an unfair competitive advantage” because it allowed Fa-cebook to provide video advertising at a lower cost while making its video ads appear more effective than they were. Id. ¶ 59. The Court turns to address whether. ■Plaintiffs have sufficiently stated a claim under either test.
a. UCL’s Balancing Test is Not Barred by Facebook’s Disclaimer
Under the UCL’s balancing test, “a plaintiff states a claim if he alleges
Facebook contends Plaintiffs fail to state a claim under the balancing test because the parties’ contract “unambiguously” warned the Plaintiffs about the harm that might flow from Facebook’s services. Mot. at 11:22-12:2. Specifically, Fa-cebook points to the following disclaimer, which was contained in its SRR during the Class Period:
WE TRY TO KEEP FACEBOOK UP, BUG-FREE, AND SAFE, BUT YOU USE IT AT YOUR OWN RISK. WE ARE PROVIDING FACEBOOK AS IS WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, ‘ FITNESS FOR A PARTICULAR PURPOSE, -AND NON-INFRINGEMENT. WE DO NOT GUARANTEE THAT FACE-BOOK WILL ALWAYS BE SAFE, SECURE, ■’ OR ERROR-FREE OR THAT FACEBOOK WILL ALWAYS FUNCTION WITHOUT DISRUPTIONS, DELAYS OR IMPERFECTIONS.
Duffey Deck, Ex. A at ¶ 16.3; Id., Ex. B at ¶ 15.3. In .addition, Facebook relies on Davis and other cases where courts have dismissed UCL claims, at the motion to dismiss stage, when, a defendant had previously warned the plaintiff of the business practice alleged to ,be unfair. See Davis,
Plaintiffs counter that their UCL claim survives the UCL’s balancing test because “Facebook has not yet presented any justification for its failure to, audit or accredit its video-advertising metrics”;, therefore, the Court is not yet in a position to weigh any evidence and make the balancing determination. Opp’n at 10:24-25. Plaintiffs also argue Facebpok’s disclaimer does not remove the claim from the. factual balancing analysis because, unlike the cases Fa-
The Court agrees with Plaintiffs. Clearly, the Court is currently not equipped with enough factual evidence to conduct a proper balancing test, which weighs against dismissing Plaintiffs’ UCL claim at this motion to dismiss stage. Backus,
Accordingly, the Court DENIES Face-book’s motion to dismiss Plaintiffs’ ÚCL claim for failure to allege an unfair practice. Because the Court finds Faeebook’s disclaimer does not preclude further examination under the UCL balancing test, the Court, .need not analyze whether Plaintiffs’ UCL claim survives under the tethering test.
ii. Plaintiffs Lack Standing for Injunctive Relief
To have Article III standing to seek injunctive relief in a federal court, a plaintiff must, demonstrate “a sufficient likelihood that he will again be wronged in
As part of their complaint, Plaintiffs seek injunctive relief in the form of an order (1) prohibiting Facebook from engaging in the wrongful acts described herein; (2) requiring Facebook to engage third-party auditors to conduct audits and evaluations of Facebook’s advertising metrics on a periodic basis and ordering Face-book to promptly correct any problems or issues detected by these auditors, and (3) requiring Facebook to disclose any further inaccurate advertising metrics in a timely and accurate manner. Compl., Prayer for Relief. Notably, however, Plaintiffs have not alleged that any of the Plaintiffs are currently purchasing video advertisements from Facebook or that any of them intend to do so in the future. Thus, Plaintiffs have failed to show a “real or immediate” threat of future injury. Moreover, Plaintiffs reliance on Lilly v. Jamba Juice Co., No. 13-cv-02998-JST,
Accordingly, the Court GRANTS Face-book’s motion to dismiss Plaintiffs’ claim for injunctive relief. Because this deficiency may be cured by amendment, the dismissal is WITHOUT PREJUDICE,
iii. Plaintiffs’ Complaint Sufficiently Alleges a Breach of Implied Duty to Perform With Reasonable Care
Under California law, every contract contains an implied covenant of good faith and fair dealing:
Accompanying every contract is a common — law duty to perform with care, skill, reasonable expedience, and faithfulness the thing agreed to be done, and a negligent failure to observe any of these conditions is a tort, as well as a breach of the contract. The rule which imposes this duty is of universal application as to all persons who by contract undertake professional or other business éngagements requiring the exercise ofcare, skill and knowledge; the obligation is implied, by law and need not be stated in the agreement.
Holguin v. DISH Network LLC,
Plaintiffs allege Facebook had two obligations as a result of Facebook’s course of dealing with the Plaintiffs, indus-. try practice, and statements made by Fa-cebook in its Advertiser Help Center and in standardized communications with Plaintiffs: (1) to provide Plaintiffs with an advertising interface where they could create, edit, and monitor their advertisements; and (2) to track the advertising it places and report metrics. Compl. ¶¶ 66-67. And in accordance with California law, Plaintiffs argue, Facebook had a duty to perform these contractual obligations with reasonable care. Id. ¶ 68. Plaintiffs allege Facebook breached this duty by incorrectly measuring viewer engagement, including inaccurate data in its interface, and reporting inaccurate advertising metrics to Plaintiffs. Id.
On the other hand, Facebook argues Plaintiffs’ implied duty claim cannot survive its motion to dismiss because the parties’ express contracts are fully integrated and fail to create any duty for Facebook to provide the two metrics at issue here. Further, Facebook claims the parties’ contract reserves to. Facebook any right not expressly provided to Plaintiffs. Mot. at 13:26-14:2. Thus, the express terms of the parties’ contract bars any implied duties or obligations. Second, Facebook argues that even if the parties’ contract can give rise to implied-in-fact obligations, Plaintiffs have failed to plead sufficient facts that give rise to a duty for Facebook to provide average duration metrics. Id. at 14:9-11; Reply at 10-12. And third, even if such an impl'ied-in-fact obligation exists, California law does not impose the implied duty of care to implied contract terms. Mot. at 14:11-13. The Court turns to address these arguments.
1. The Parties’ Contract Does Not Preclude Implied Duties
In support of Facebook’s contention that Plaintiffs cannot assert any implied duties, it points- to Facebook’s Statement of Responsibilities and Rights ■ (“SRR”). This “master document” sets forth the “terms of service that governs [Facebook’s] relationship with users and others who interact with Facebook.” Duffey Deck, Exs. AB. And “[b]y using or accessing Facebook, [Plaintiffs] agree[d] to this statement....” Id. The SRR contains an integration clause: “This statement makes up the entire agreement between the parties regarding Facebook, and supersedes any pri- or agreement.” Duffey Deck, Ex. A, ¶ 19.2; Duffey Deck, Ex. B, ¶ 18.2. Because the SRR makes no explicit mention of advér-tising metrics, Facebook argues it has “no express contractual obligation to provide metrics”; and because the SRR contains a integration clause, Facebook argues the contract cannot be supplemented by implied terms.
Plaintiffs respond, in relevant part, by citing to Lennar Mare Island, LLC v. Steadfast Ins. Co..,
In sum, the Court finds.it need not address whether the parties contractual terms were fully integrated or not because, in any event, Plaintiffs ' may- introduce course of performance evidence to explain or supplement the agreement.
Next, Facebook relies on a separate clause in the SRR to attempt to foreclose any finding of implied duties. This clause states that “[Facebook] reserve[s] all rights not expressly granted to [Plaintiffs].'” Duffey Decl., Ex. B, ¶ 18.10. Although Facebook cites to Cohen v. Paramount Pictures Corp.,
Here, unlike the videocassette technology in Cohen that was not in existence at the time the parties entered their agreement, it cannot be said that video advertising metrics were not in existence,' or contemplated by the parties, when they entered into their agreement. This is especially true in light of references in' the parties’ contract to' “self-service advertising interfaces” and the use of Facebook advertising data “to assess the performance and effectiveness of [Plaintiffs’] advertising campaigns.” Exs. D, E. Also, in Novell, while examining whether an agreement described a sale or a license, the court acknowledged the agreement expressly stated that any rights, not expressly granted were reserved to the software company. Novell,
2. Course of Performance Supports an Implied Duty
This brings the Court to the next inquiry: whether Plaintiffs have alleged facts that give rise to an implied duty for Face-book. For the following reasons, the Court finds the Plaintiffs have sufficiently alleged a course of performance that gives rise to Facebook’s duty to provide advertising metrics.
When interpreting a contract, the court’s duty is to give effect to the parties’ intentions at the time they entered the contract. Cal. Civ. Code § 1636. “[T]he most reliable evidence of the parties’ intentions” is their conduct after the contract is signed and before any controversy has arisen. Emp’rs Reinsurance Co. v. Superior Ct.,
“This rule of practical construction is predicated on the common sense concept that ‘actions speak louder than words.’ Words are frequently but an imperfect medium to convey thought and intention. When the patties to a contract perform under it and demonstrate by their conduct that they knew what they were talking about the courts should enforce that intent.”
Crestview Cemetery Ass’n v. Dieden,
Here, Plaintiffs’ complaint sufficiently alleges that Facebook regularly
3. California Law Does Allow Implied Duties to Apply to Implied Terms
Finally, Facebook argues that even if the parties’ contract does not foreclose the existence of implied contractual duties, Plaintiffs’ claim fails because “the case law concerning the implied duty to perform contractual duties with reasonable care has only been applied to duties that arose out of the express terms of a contract.” Mot. at 15:24-27. But the cases Facebook relies on for this proposition do not support it. For example, in Holguin, the court was reviewing a trial court’s finding that the parties’ contractual agreements contained an implied term to exercise reasonable care in installing satellite television equipment. The plaintiffs sued several satellite television providers after a technician conducted an improper installation at the plaintiffs’ home. Holguin,
Here, viewing the facts in the light most favorable to Plaintiffs, the Court finds that the parties’ contract contemplates Face-book’s duty to provide advertising metrics with its video advertising services. Again, as mentioned above, the parties’ contract specifically references advertising metrics.
In sum, Plaintiffs’ implied-duty claim survives Facebook’s motion to dismiss. California case law recognizes that course of performance evidence is allowed to explain or supplement integrated contracts even when the contract is unambiguous. Here, there is no doubt that Facebook had been providing advertising metrics to Plaintiffs as part of its advertising services. This course of performance sufficiently supports Plaintiffs’ implied duty claim. And under California law, implied duties may be required to be performed with reasonable care. Faeebook’s arguments to the contrary are unavailing.
Accordingly, the Court DENIES Face-book’s motion to dismiss Plaintiffs’ claim for breach of implied duty to perform with reasonable care.
iv. Quasi-Contract Claim
In order to sufficiently plead a quasi-contract claim, the plaintiff must allege (1) a defendant’s receipt of a benefit and (2) unjust retention of that benefit at the plaintiffs expense. Peterson v. Cellco Partnership,
Facebook argues Plaintiffs’ quasi-contract claim should be dismissed because “there is an enforceable contract in the record that covers the subject matter of Plaintiffs’ unjust-enrichment claim.” Mot. at 18:10-12. In support of this argument, Facebook cites Facebook’s SRR, Self-Serve Ad Terms, Advertising Guidelines, and Payment Terms. Id. On the other hand, Plaintiffs argue there is no contract that covers the subject matter because these documents do not “cover the two [advertising] metrics at issue here.” Opp’n at 23:5-10. Additionally, Plaintiffs argue the court should not dismiss their quasi-contract claim “[w]here there is a general issue of material fact as to whether the contract governed the matter at-issue,” because should a factfinder determine Face-book’s contracts do not cover the advertising metrics, Plaintiffs will be left without a remedy. Id. at 23:15-26. Facebook is correct on this issue. The mere fact that Facebook’s contracts do not expressly mention the two advertising metrics at issue here does not mean the contract does not govern the subject matter at issue here — i.e., Facebook’s advertising services. In addition, Plaintiffs conceded during oral arguments that they “do believe that the advertising services that are part of [the parties’] contract include performance metrics.” EOF No. 63 at 32:23-33:2. And even though Federal Rule of Civil Procedure 8 allows Plaintiffs to seek inconsistent causes of action, this rule does not overcome the California state-law doctrine that
Accordingly; the Court GRANTS Face-book’s motion to dismiss Plaintiffs’ quasi-contract claim. Because there is an enforceable contract that governs the Face-book’s advertising services, .any further amendment would be futile. Thus, the dismissal is done WITH PREJUDICE-
IV. CONCLUSION
In summary, for the foregoing reasons, the Court:
-GRANTS Facebook’s request for judicial notice of Facebook’s contractual documents
-DENIES Facebook’s request for judicial notice of Mr. Fischer’s Facebook post.
-GRANTS Facebook’s motion to dismiss Plaintiffs’ UCL claim WITHOUT PREJUDICE
-GRANTS Facebook’s request for -in-junctive relief WITHOUT PREJUDICE
-DENIES Facebook’s motion to dismiss Plaintiffs’ claim for’breach of implied duty to perform with reasonable care.
-GRANTS Facebook’s quasi-contract claim WITH PREJUDICE.
Plaintiffs may amend all claims dismissed without prejudice no later than August 14, 2017. Failure to file timely amendment will lead to dismissal of such claims with prejudice.
IT IS SO ORDERED.
. Similarly, the disclaimers in Facebook’s ■ other cited cases clearly disclosed the risk of the exact harm that plaintiffs later alleged was unfair. See Hodsdon v. Mars,
. None of the parties’ contractual agreements define what a software "bug” is, or what type of errors are included within that definition.
. A "course of performance” is a sequence of conduct between the parties to a particular transaction that exists if:
(1) the agreement of the parties with respect to the transaction involves repeated occasions for performance by a party; and
(2) the other party, with knowledge of the nature of the performance and opportunity for objection'to it, accepts the performance or acquiesces in it without objection,
Cal. Com. Code § 1303(a) (West 2017).
. Although Facebook argues that Plaintiffs’ course-of-performance argument must fail because Plaintiffs never once mentioned “course of performance” in its complaint, the Court finds Plaintiffs have alleged sufficient facts to support this claim in these cited paragraphs. See Humboldt Baykeeper v. Simpson Timber Co., No. C. 06-04188CRB,