GLENN LIOU v. ORGANIFI, LLC et al.
Case No.: 20-cv-1077-CAB-DEB
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
February 8, 2021
Hon. Cathy Ann Bencivengo
[Doc. Nos. 23, 24]
This matter is before the Court on Defendants Organifi, LLC‘s and Andrew Canole‘s motion to dismiss the Second Amended Complaint [Doc. No. 23] and motion to compel arbitration of Plaintiff‘s claims and stay litigation pending the outcome of arbitration [Doc. No. 24]. Both motions have been fully briefed and the Court finds both suitable for determination on the papers submitted and without oral argument. See CivLR 7.1(d)(1). For the reasons set forth below, Defendants’ motion to compel arbitration is DENIED, and Defendants’ motion to dismiss is GRANTED in part and DENIED in part.
I. BACKGROUND
Plaintiff Glenn Liou filed this putative consumer class action complaint against Defendants Organifi, LLC and Andrew Canole in San Diego Superior Court on August 30,
Defendants removed the action to this Court on June 12, 2020. [Doc. No. 1.] After removal, Defendants filed a motion to dismiss the FAC, while Plaintiff filed a motion to remand the action to state court. [Doc. Nos. 3, 4.] The Court denied the motion to remand and granted the motion to dismiss with respect to Plaintiff‘s breach of the implied warranty of merchantability claim, CLRA and UCL claims premised solely on Defendants’ Benefit Statements,1 and request for injunctive relief, and denied it otherwise. [Doc. Nos. 10, 14.] As permitted by the Court‘s order on the motion to dismiss, Plaintiff filed a Second Amended Complaint (“SAC“) on October 22, 2020, asserting the same five claims. [Doc. No. 15.] Defendants now move to dismiss the SAC [Doc. No. 23] or to compel arbitration [Doc. No. 24].
As for the motion to compel arbitration, Defendants contend that by making a purchase on www.organifishop.com, Plaintiff agreed to certain Terms & Conditions (hereinafter “T&C“) linked on the site. [Doc. No. 24-1 at 7.] According to Defendants, these T&C include a valid and binding arbitration agreement that encompasses the present dispute and requires the Court to compel Plaintiff to arbitrate his claims. [Id.]
II. ORDER ON MOTION TO COMPEL ARBITRATION
a. LEGAL STANDARD
The Federal Arbitration Act (“FAA“) governs the enforceability of arbitration agreements in contracts involving commerce. See
Under the FAA, an aggrieved party to a written arbitration agreement “may petition any United States District Court . . . for an order directing that such arbitration proceed in the manner provided for in [the arbitration] agreement.”
b. DISCUSSION
Plaintiff alleges that on January 29, 2019, he placed an order for Green Juice on www.organifishop.com. [Doc. No. 1-3 at 9.] Defendants allege that in order to complete the checkout process on www.organifishop.com, Plaintiff “agreed to Organifi‘s Terms and Conditions.” [Doc. No. 24-1 at 7.] Specifically, Defendants contend that directly below the “Complete Purchase” button on the checkout page of www.organifishop.com, a “click box” appears that states: “By purchasing, you are agreeing to Organifi‘s Terms & Conditions.” [Doc. No. 24-2 ¶¶ 3-4.] Defendants also allege that there is a hyperlink below the “click box” titled “Terms of service” that directs the user to the T&C. [Id.] Plaintiff disagrees with Defendants’ description of the checkout page, alleging that he “did not have to click any form of acknowledgment of the [T&C] before accessing the website or placing any order, did not see the [T&C], was not aware and did not agree to be bound by” the T&C. [Doc. No. 28 at 8.]
The T&C that Defendants allege was linked on www.organifishop.com begins: “Welcome to www.organifi.com or www.fitlife.tv (each a ‘Site‘), an online website operated by Fit Life TV LLC, a Florida limited liability company (‘FLT‘, ‘We‘, ‘Our‘, or ‘Us‘).” [Doc. No. 30-2 at 2.] The contract defines “FLT,” “We,” “Our,” and “Us” to refer to Fit Life TV LLC (hereinafter “FLT“) and makes no mention of the corporate entity Organifi, LLC or of Andrew Canole as parties to the contract. The T&C, therefore, is a contract between FLT and any user of the two websites listed (“www.organifi.com or www.fitlife.tv“).
Paragraph 16 of the T&C states:
Class Action Waiver and Arbitration. THIS CLASS ACTION WAIVER AND ARBITRATION SECTION PROVIDES THAT ANY DISPUTE ARISING FROM THIS AGREEMENT MUST BE RESOLVED BY BINDING ARBITRATION, WHICH REPLACES THE RIGHT TO GO TO
COURT. THIS SECTION PROHIBITS YOU FROM BRINGING A CLASS ACTION OR OTHER REPRESENTATIVE ACTION IN COURT, INCLUDING IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION, AND PROHIBITS YOU FROM BRINGING ANY CLAIM IN ARBITRATION AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION. IN ADDITION, THIS CLASS ACTION WAIVER AND ARBITRATION SECTION PROHIBITS YOUR ABILITY TO BE PART OF ANY CLASS ACTION OR OTHER REPRESENTATIVE ACTION BROUGHT BY ANYONE ELSE, AND PROHIBITS YOUR ABILITY TO BE REPRESENTED IN A CLASS ACTION OR OTHER REPRESENTATIVE ACTION. THE WAIVERS SET FORTH IN THIS SECTION INCLUDE ANY CLAIM THAT YOU MAY HAVE AGAINST FLT WITH RESPECT TO ANY THIRD PARTY SERVICE. TO THE EXTENT A PROVIDER OF A THIRD PARTY SERVICE JOINS FLT IN ANY ACTION BETWEEN YOU AND SUCH PROVIDER, YOU AGREE THAT THIS SECTION SHALL APPLY TO ANY CLAIMS YOU MAY HAVE AGAINST FLT. IF NOT FOR THIS CLASS ACTION WAIVER AND ARBITRATION SECTION, YOU MAY HAVE OTHERWISE HAD A RIGHT TO PARTICIPATE OR BE REPRESENTED IN A CASE FILED IN COURT BY OTHERS (INCLUDING CLASS ACTIONS AND OTHER REPRESENTATIVE ACTIONS) AND YOU AND FLT MAY OTHERWISE HAVE HAD A RIGHT TO BRING CLAIMS IN A COURT BEFORE A JUDGE OR JURY. EXCEPT AS OTHERWISE PROVIDED BELOW, YOU WAIVE ANY OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO A COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL A DECISION. The party filing a claim in arbitration must choose one of the following two arbitration administrators: American Arbitration Association; or JAMS/Endispute, both of which are independent from Us. Any arbitration will be conducted under the rules of the selected arbitration administrator by an impartial third party chosen in accordance with the rules of the selected arbitration administrator and as provided herein. . . . Copies of the current rules of the arbitration administrators named above, and well as information about arbitration and arbitration fees, and instructions for initiating arbitration may be obtained by using the following contact information:
American Arbitration Association
1633 Broadway, 10th Floor, New York, NY 10019
Website: www.adr.org
Telephone: 800-778-7879
JAMS
1920 Main Street, Suite 300, Irvine, CA 92614
Website: www.jamsadr.com
Telephone: 800-352-5267.
[Doc. No. 30-2 at 8-9.] Defendants argue that by making a purchase on www.organifishop.com, Plaintiff agreed to the T&C, and is therefore bound by the above class action waiver and arbitration agreement in Paragraph 16. Defendants further argue that based on Paragraph 16, even the threshold issue of arbitrability must be decided by an arbitrator.
i. Defendants Are Not Party to the Terms & Conditions and Have No Contractual Right to Compel Arbitration
The FAA reflects the “fundamental principle that arbitration is a matter of contract.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011) (citing Rent-A-Ctr., West, Inc. v. Jackson, 561 U.S. 63, 67 (2010)). The right to compel arbitration is thus a contractual right that “may not be invoked by one who is not a party to the agreement and does not otherwise possess the right to compel arbitration.” Kramer v. Toyota Motor Corp., 705 F.3d 1122, 1126 (9th Cir. 2013) (quoting Britton v. Co-op Banking Grp., 4 F.3d 742, 744 (9th Cir. 1993) (“An entity that is neither a party to nor agent for nor beneficiary of the contract lacks standing to compel arbitration.“)). Thus, while limited exceptions may exist under state contract law,2 courts generally do not allow a non-signatory to a contract to invoke an arbitration agreement contained therein. See Kramer, 705 F.3d at 1128 (“The United States Supreme Court has held that a litigant who is not a party to an arbitration agreement may invoke arbitration under the FAA if the relevant state contract law allows the litigant to enforce the agreement.“).
A fundamental rule of contract interpretation under California law is that contracts
Defendants argue that “We,” “Our,” and “Us” are “grammatically plural” words, so they cannot refer to just one entity (FLT). However, as Defendants point out, companies and entities are often referred to using the third person plural. This is demonstrated by the arbitration agreements at issue in several cases cited by Defendants. See Kramer, 705 F.3d at 1124 (quoting contract between the plaintiff and car dealership as “If either you or we
Defendants further argue that Andrew Canole is entitled to invoke the arbitration clause and compel this matter to arbitration as a non-signatory to the T&C because he acts as an agent to and beneficiary of Organifi, LLC. [Doc. No. 24-1 at 14-16.] However, Defendants’ argument is premised on the assumption that Organifi itself is a party to the T&C—which the Court finds that it is not. Because the T&C is an agreement between the consumer and FLT, Mr. Canole and Organifi‘s relationship is irrelevant to this inquiry.
For the reasons discussed above, the Court finds that neither Organifi nor Andrew Canole is a party to the T&C.4 Accordingly, neither Defendant is entitled to invoke the T&C‘s class action waiver and arbitration provision, and no binding agreement to arbitrate
ii. The Parties Did Not Agree to Arbitrate Arbitrability
Defendants also argue that under Paragraph 16 of the T&C, the parties delegated the threshold issue of whether they agreed to arbitrate their dispute to an arbitrator.
“The question of whether the parties have submitted a particular dispute to arbitration, i.e., the ‘question of arbitrability,’ is an issue for judicial determination unless the parties clearly and unmistakably provide otherwise.” Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002) (emphasis in original) (internal quotations omitted). Defendants contend that Paragraph 16 “expressly incorporates the AAA and JAMS Rules, which empower an arbitrator to decide threshold issues of arbitrability,” and therefore constitutes “clear and unmistakable evidence that contracting parties agreed to arbitrate arbitrability.” Brennan v. Opus Bank, 796 F.3d 1125, 1130 (9th Cir. 2015). However, Defendants ignore a crucial aspect of the Brennan rule—the arbitration agreement must be between contracting parties. Defendants cannot assert a contractual right arising from a contract to which they were not a party.6 See DMS Servs., LLC v. Superior Court, 140 Cal. Rptr. 3d 896, 901 (2012) (noting that the “general rule [is] that one must be a party to an
iii. Defendants Waived Their Right to Compel Arbitration
Even if the parties were bound by the T&C and this dispute fell within the scope of the T&C‘s arbitration provision, the Court finds that Defendants nevertheless waived their right to compel arbitration in this matter.
The right to compel arbitration arises from a contract alleged to be between the parties, and like other contractual rights, can be waived. See United States v. Park Place Assocs., Ltd., 563 F.3d 907, 921 (9th Cir. 2009) (citing Van Ness Townhouses v. Mar Indus. Corp., 862 F.2d 754, 758-59 (9th Cir. 1988)). However, a waiver of a contractual right to arbitration is not favored, and “any party arguing waiver of arbitration bears a heavy burden of proof.” Id. To establish waiver of the right to compel arbitration, a party must show: “(1) knowledge of an existing right to compel arbitration; (2) acts inconsistent with that existing right; and (3) prejudice to the party opposing arbitration resulting from such inconsistent acts.” Martin v. Yasuda, 829 F.3d 1118, 1124 (9th Cir. 2016) (citing Fisher v. A.G. Becker Paribas Inc., 791 F.2d 691, 694 (9th Cir. 1986)). Defendants do not dispute that they had knowledge of their alleged right to compel arbitration with Plaintiff throughout this litigation. Accordingly, the Court addresses only the latter two factors.
1. Defendants Engaged in Acts Inconsistent with Their Alleged Right to Arbitration
“There is no concrete test to determine whether a party has engaged in acts that are inconsistent with its right to arbitrate.” Martin, 829 F.3d at 1125. Instead, the Court must generally ask whether a party‘s actions “indicate a conscious decision . . . to seek judicial judgment on the merits of [the] arbitrable claims, which would be inconsistent with a right to arbitrate.” Id. This element is satisfied when a party (1) “makes an intentional decision not to move to compel arbitration,” Newirth v. Aegis Senior Communities, LLC, 931 F.3d 935, 941 (9th Cir. 2019), and (2) “chooses to delay his right to compel arbitration by
Plaintiff filed this putative consumer class action complaint against Defendants in state court on August 30, 2019. [Doc. No. 1-2.] On October 29, 2019, Defendants filed a demurrer to Plaintiff‘s complaint [Doc. No. 24-1 at 7], and on January 6, 2020, Plaintiff filed the FAC in response. [Doc. Nos. 1-3, 1-4.] Plaintiff also served various discovery requests on Defendants in January 2020, and Defendants responded with objections to every request. [Doc. Nos. 24-5, 24-6.] The parties participated in a Case Management Conference on February 7, 2020. [Doc. No. 28 at 9.] Defendants then filed another demurrer to the FAC on February 14, 2020. [Doc. No. 24-1 at 8.] Due to delays stemming from the COVID-19 pandemic, the demurrer to the FAC was never heard in state court.
After removing the action to this Court in June 2020, Defendants filed a motion to dismiss the FAC, while Plaintiff filed a motion to remand the action to state court. [Doc. Nos. 3, 4.] The Court denied the motion to remand and granted the motion to dismiss in part. [Doc. Nos. 10, 14.] Plaintiff then filed the SAC on October 22, 2020. [Doc. No. 15.] Defendants subsequently filed a motion to dismiss the SAC [Doc. No. 23], as well as a motion to compel arbitration [Doc. No. 24].
Defendants have spent approximately fifteen months litigating this case from when Plaintiff filed his initial complaint in August 2019 until the filing of the present motion in November 2020. Since removing the case to federal court, Defendants have spent approximately seven months litigating before raising their alleged right to compel arbitration, including defending against a motion to remand and bringing two motions to dismiss. “When we have granted motions to compel filed after substantial litigation, there have been unique circumstances that have explained the long delay in filing a motion to compel, such as absence of knowledge, a party‘s pro se status, or intervening law.” Martin, 829 F.3d at 1127 n.5. Defendants have presented no such evidence of unique
Additionally, Defendants have actively litigated this case by filing four separate motions to dismiss Plaintiff‘s claims between state and federal court. While in state court, Defendants filed two demurrers to Plaintiff‘s complaint and FAC, respectively. [Doc. No. 24-1 at 7-8.] After removal, Defendants then brought two additional motions to dismiss the FAC and the SAC. [Doc. Nos. 3, 23.] While “filing a motion to dismiss that does not address the merits of the case is not sufficient to constitute an inconsistent act,” seeking a dismissal with prejudice, which is a ruling on the merits, may be so. See Martin, 829 F.3d at 1126 n.4 (“When defendants move for dismissal with prejudice on a key merits issue that would preclude relief as to one or more of plaintiffs’ claims, as they did here, they are seeking a ruling on the merits.“). Defendants have twice moved for this Court to dismiss Plaintiff‘s claims with prejudice and sought rulings on key merits issues, such as whether Plaintiff‘s CLRA and UCL claims are preempted by federal law.7 Although Defendants both “served pure objections” [Doc. No. 24-1 at 23] to Plaintiff‘s discovery requests in state court, objecting to one set of discovery requests while simultaneously filing multiple motions to dismiss hardly suggests “a decision to [not] take advantage of the judicial forum.” Newirth, 931 F.3d at 941.
In Britton v. Co-op Banking Grp., 916 F.2d 1405, 1413 (9th Cir. 1990), the Ninth Circuit held that a defendant‘s efforts to resist discovery requests, pursue a court-appointed attorney and apply for in forma pauperis status reflected only a “determination to avoid or frustrate the litigation.” Defendants’ actions here, on the other hand, are more akin to a “strategic decision to actually litigate.” Newirth, 931 F.3d at 941. Defendants have actively litigated this case for fifteen months, filed four separate motions to dismiss, and have not once raised their alleged right to arbitrate. Based on this record, Defendants’ conduct constitutes “an intentional decision to forgo arbitration in favor of a judicial
2. Plaintiff Was Prejudiced as a Result of Defendants’ Actions
In order to establish prejudice, Plaintiff must show that “as a result of the defendants having delayed seeking arbitration, they have incurred costs that they would not otherwise have incurred, that they would be forced to relitigate an issue on the merits on which they have already prevailed in court, or that the defendants have received an advantage from litigating in federal court that they would not have received in arbitration.” Martin, 829 F.3d at 1126 (internal citations omitted). Prejudice is shown when “a party has expended considerable time and money due to the opposing party‘s failure to timely move for arbitration and is then deprived of the benefits for which it has paid by a belated motion to compel.” Id. at 1127.
Plaintiff has been prejudiced by Defendants’ actions throughout this litigation. Defendants attempted to take advantage of the federal judicial forum by seeking a ruling on the merits of Plaintiff‘s allegedly arbitrable claims, and only sought to compel arbitration once the Court ruled adversely to them on their first motion to dismiss. See Newirth, 931 F.3d at 944 (finding prejudice to the plaintiff in similar circumstances). Defendants’ fifteen-month delay required Plaintiff to expend significant time, resources, and effort to litigate this matter in both state and federal court.8 Moreover, if the parties were now compelled to arbitration, Plaintiff would be forced to “relitigate a key legal issue [on the merits] on which the district court has ruled in [his] favor“—i.e., whether Plaintiff‘s CLRA and UCL claims are preempted by federal law. See Martin, 829 F.3d at 1128 (“We and other circuits routinely have found this factor dispositive because the plaintiffs would be prejudiced if the defendants got a mulligan on a legal issue it chose to litigate in court
As in Martin, where the Ninth Circuit found prejudice after defendants “failed to move for arbitration for seventeen months [and] the plaintiffs expended considerable money and effort in federal litigation,” Plaintiff here would be prejudiced if he were forced to arbitrate this case after fifteen months of time and money spent in court. Martin, 829 F.3d at 1127-28 (“The unnecessary, additional costs incurred by [Plaintiff] as a result of the defendants’ dilatory motion to compel constitutes obvious prejudice.“). Because Defendants had knowledge of their alleged right to arbitrate and engaged in various acts inconsistent with that right across fifteen months of litigation, and because Plaintiff would suffer prejudice should the Court now compel arbitration, the Court finds that Defendants waived any purported right to arbitrate the present dispute.
For the reasons set forth above, Defendants’ motion to compel arbitration [Doc. No. 24] is DENIED.
III. ORDER ON MOTION TO DISMISS THE SECOND AMENDED COMPLAINT
a. LEGAL STANDARD
The familiar standards on a motion to dismiss apply here. To survive a motion to dismiss under
b. DISCUSSION
The Court previously dismissed Plaintiff‘s breach of implied warranty of merchantability claim, CLRA and UCL claims premised solely on Defendants’ Benefit Statements, and request for injunctive relief, granting Plaintiff leave to amend his complaint. [Doc. No. 14.] Upon review of the SAC and Defendants’ motion to dismiss, the Court finds that Plaintiff partially remedied the deficiencies identified in the Court‘s previous Order.
i. Breach of Implied Warranty of Merchantability
The Court previously dismissed Plaintiff‘s breach of implied warranty claim in the FAC for failing to allege how Green Juice does not “provide[] for a minimum level of quality” or “lacks even the most basic degree of fitness for ordinary use” as a juice product. Birdsong v. Apple, Inc., 590 F.3d 955, 958 (9th Cir. 2009). In the SAC, Plaintiff clarifies that Green Juice is not a juice, but rather is a nutritional supplement in the form of a “powder that is added to water or other liquids.” [Doc. No. 15 ¶ 25.] Plaintiff further alleges that Green Juice does not “provide the basic promised benefits of a nutritional supplement” that is supported by independent clinical trials, “thus failing to meet a minimum level of quality that would reasonably be expected for such products.”9 [Id. ¶ 82.] Plaintiff‘s allegations are sufficient to state a claim to relief that is plausible on its face. Therefore, Defendant‘s motion to dismiss Plaintiff‘s breach of implied warranty of
ii. CLRA and UCL Claims Premised on Defendants’ Benefit Statements
Plaintiff‘s CLRA and UCL claims in the FAC were dismissed to the extent that they were premised solely on Defendants’ Benefit Statements. The Court found that such claims were “lack of substantiation” claims, which private litigants are prohibited from bringing under the CLRA or UCL. See Nat‘l Council Against Health Fraud, Inc. v. King Bio Pharm., Inc., 133 Cal. Rptr. 2d 207, 213 (2003). The Court instructed Plaintiff that to sustain his CLRA and UCL claims based on the Benefit Statements, he must “point to direct evidence specifically showing why each of the twenty identified Benefit Statements are provably false.” [Doc. No. 14 at 8.]
In the SAC, Plaintiff again presents the same twenty Benefit Statements as a basis for his CLRA and UCL claims. [Doc. No. 15 ¶ 32(a)-(t).] Plaintiff alleges that the Benefit Statements where Defendants claim that “Green Juice‘s effectiveness at treating certain conditions has been proven by third-party clinical trials or studies” are provably false because (1) there has only been one study of Green Juice conducted, not multiple; (2) the single study of Green Juice does not qualify as a “clinical trial“; (3) any other studies relied on by Defendants are of Green Juice‘s component ingredients, rather than studies of Green Juice itself; and (4) the eighteen clinical trials specifically referenced by Defendants in support of the Benefit Statements do not actually support Green Juice‘s efficacy. [Id. ¶¶ 33-50.] As for the Benefit Statements that claim to be based on “third party clinical trials“—specifically those identified in paragraph 32, sections (d), (p), (q), (r), (s), and (t), of the SAC—the Court finds that Plaintiff has remedied the defects identified in its prior order and may therefore proceed with his CLRA and UCL claims based on those statements. However, Plaintiff‘s claims arising out of the remaining Benefit Statements continue to suffer from the same issues previously identified by the Court, as Plaintiff has not presented any direct evidence of how such statements are provably false.
Accordingly, Defendant‘s motion to dismiss Plaintiff‘s CLRA and UCL claims
iii. Request for Injunctive Relief
Finally, Plaintiff‘s request for injunctive relief in the FAC was dismissed for lack of standing because Plaintiff did not allege a “sufficient likelihood that he will again be wronged in a similar way.” Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (internal quotations omitted). Specifically, Plaintiff failed to allege facts suggesting that he intends to purchase Green Juice again in the future, and thus failed to establish any threat of future harm as required to warrant injunctive relief. [Doc. No. 14 at 12.]
In the SAC, Plaintiff alleges that:
he continues to desire to improve his health and would order [Green Juice] or reformulated [Green Juice] in the future if, in fact, Defendants conducted truly independent clinical studies of the effectiveness of the Product or any reformulated Product, or disclosed other truthful information about the Products’ component ingredients and/or scientific proof that correlated to the constituent product levels. . . . Given Defendants’ ongoing business acts and practices, Plaintiff will be unable to rely on the Product‘s advertising or labeling in the future, and so will not purchase the product although he would like to.
[Doc. No. 15 ¶ 71.] In sum, Plaintiff claims he would purchase Green Juice again if it were properly advertised or labeled. This statement appears to contradict Plaintiff‘s earlier allegation that he “did not receive any of the claimed benefits of the Product” after consuming it. [Id. ¶ 21.] Nevertheless, Plaintiff has plausibly alleged that he would purchase Green Juice again with accurate labeling, despite the fact that he found the product ineffective. Construing the SAC in the light most favorable to Plaintiff, the Court accepts Plaintiff‘s factual allegation on its face and thus will allow him to proceed with his claim for injunctive relief. Accordingly, Defendants’ motion to dismiss Plaintiff‘s claim for injunctive relief is DENIED.
IV. CONCLUSION
For the reasons set forth above, Defendants’ motion to compel arbitration is DENIED. Defendants’ motion to dismiss the SAC is GRANTED in part and DENIED in part. Plaintiff‘s CLRA and UCL claims based solely on the fourteen Benefit Statements identified in ¶ 32(a)-(c) and ¶ 32(e)-(o) of the SAC are DISMISSED WITH PREJUDICE, and Defendants’ motion to dismiss is DENIED as to all other claims at issue. Defendants shall file an answer to the SAC on or before February 26, 2021.
It is SO ORDERED.
Dated: February 8, 2021
Hon. Cathy Ann Bencivengo
United States District Judge