Notwithstanding, California case law provides that courts are split on this particular issue—whether, under the UCL, omissions must relate to safety concerns. See Norcia v. Samsung Telecommunications Am., LLC, No. 14-CV-00582, 2015 WL 4967247, at *6 (N.D. Cal. Aug. 20, 2015) ("Some federal courts have adopted a ‘safety concern’ limitation ..."); Hodsdon v. Mars, Inc., 891 F.3d 857, 861–62 (9th Cir. 2018) ("[T]he recent California cases do cast doubt on whether Wilson's safety-hazard requirement applies in all circumstances ..."). In fact, the Ninth Circuit has reviewed recent California Courts of Appeal decisions following Wilson, to find that this "safety-hazard" requirement "is not necessary in all omission cases."

A majority of California Courts have held that there can be no FAL claim on pure omission where there is no “statement” at all, that is, a plaintiff has not alleged any actual misleading or untrue statements. Ponzio, 447 F.Supp.3d at 248 (citing Norcia v. Samsung Telecommunications Am., LLC, No. 14-00582, 2015 WL 4967247, at *8 (N.D. Cal. Aug. 20, 2015) (collecting cases)); see e.g. Dana v. Hershey Co., 180 F.Supp.3d 652, 669 (N.D. Cal. 2016), affd, 730 Fed.Appx. 460 (9th Cir. 2018) (dismissing FAL claim based on pure omissions where plaintiff alleged failure to disclose on Hershey chocolate packaging that some cocoa originated at farms that use slave labor),

Because “[t]here can be no FAL claim where there is no ‘statement' at all[,]” the Court GRANTS the Motions with respect to Defendants' FAL misrepresentation argument, and the Court DISMISSES those claims with leave to amend. See Norcia v. Samsung Telecommunications Am., LLC, 2015 WL 4967247, at *8 (N.D. Cal. Aug. 20, 2015) (citation omitted).

However, a FAL claim is not cognizable when based solely on an omission of material information. See, e.g., Norcia v. Samsung Telecomms. Am., LLC, No. 14-cv-00582-JD, 2015 WL 4967247, at * 8 (N.D. Cal. Aug. 20, 2015) (“There can be no FAL claim where there is no ‘statement' at all.”).

"A FAL claim is not cognizable when based solely on an omission of material information." Stewart v. Electrolux Home Prod., Inc., 304 F. Supp. 3d 894, 907-08 (E.D. Cal. 2018) (citing Norcia v. Samsung Telecomms. Am., LLC, No. 14-cv-00582-JD, 2015 WL 4967247, at * 8 (N.D. Cal. Aug. 20, 2015) ("There can be no FAL claim where there is no 'statement' at all.")). Instead, "the complaint must still identify an affirmative statement that was made false or misleading by the omission of relevant and material information." Id.

Nestor cites a pair of cases indicating that courts interpret "exclusivity" less strictly than the ordinary meaning of the word demands, i.e., merely "superior" knowledge of the defect can give rise to a duty to disclose. See Edenborough v. ADT, LLC, No. 16-CV-02233-JST, 2016 WL 6160174, at *6 (N.D. Cal. Oct. 24, 2016); Norcia v. Samsung Telecommunications Am., LLC, No. 14-CV-00582, 2015 WL 4967247, at *7 (N.D. Cal. Aug. 20, 2015). Because Fiat-Chrysler cites no case to the contrary, the Court proceeds under the assumption that superior knowledge suffices.

To begin with, "many courts have held a plaintiff who asserts that a business omitted a material fact in its advertisements, labels, or literature has not stated a claim under the FAL." Hodsdon v. Mars, Inc., 162 F. Supp. 3d 1016, 1023 (N.D. Cal. 2016), aff'd, 891 F.3d 857 (9th Cir. 2018); see also Norcia v. Samsung Telecomms. Am., LLC, No. 14-CV-00582-JD, 2015 WL 4967247, at *8 (N.D. Cal. Aug. 20, 2015) ("There can be no FAL claim where there is no 'statement' at all."). The viability of an FAL claim is even more suspect where, as here, the defendant "did not make any statement at all about a subject."

Currently there is a split in this circuit as to whether a FAL cause of action may be based on omissions. Compare Norcia v. Samsung Telecomms. Am., LLC. No. 14-cv-00582-JD, 2015 WL 4967247, at *8 (N.D. Cal. Aug. 20, 2015) ("There can be no FAL claim where there is no 'statement' at all."), with Tait v. BSH Home Appliances Corp., No. SACV 10-00711 DOC (ANx), 2011 WL 3941387, at *2-3 (C.D. Cal. Aug. 31, 2011) (denying a motion to dismiss FAL claims even though the plaintiffs "assert[ed] a theory of misrepresentation by omission").

A FAL claim is not cognizable when based solely on an omission of material information. See, e.g. , Norcia v. Samsung Telecomms. Am., LLC , No. 14-cv-00582-JD, 2015 WL 4967247, at * 8 (N.D. Cal. Aug. 20, 2015) ("There can be no FAL claim where there is no ‘statement’ at all.") Even if a FAL claim involves a fraudulent omission or concealment, the complaint must still identify an affirmative statement that was made false or misleading by the omission of relevant and material information. Hodsdon v. Mars, Inc. , 162 F.Supp.3d 1016, 1023 (N.D. Cal. 2016).

A FAL claim is not cognizable when based solely on an omission of material information. See, e.g., Norcia v. Samsung Telecomms. Am., LLC, No. 14-cv-00582-JD, 2015 WL 4967247, at * 8 (N.D. Cal. Aug. 20, 2015) ("There can be no FAL claim where there is no 'statement' at all.") Even if a FAL claim involves a fraudulent omission or concealment, the complaint must still identify an affirmative statement that was made false or misleading by the omission of relevant and material information. Hodsdon v. Mars, Inc., 162 F. Supp. 3d 1016, 1023 (N.D. Cal. 2016).