Opinion
24-cv-00642-SVK
04-19-2024
DARREN RYAN, Plaintiff, v. STARCO BRANDS, INC., Defendant.
ORDER (1) DENYING MOTION TO REMAND AND (2) GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS AND STRIKE WITH LEAVE TO AMEND
RE: DKT. NOS. 7, 8
SUSAN VAN KEULEN, United States Magistrate Judge
Plaintiff Darren Ryan alleges he purchased “Whip Shots,” an alcohol-infused whipped cream, that Defendant Starco Brands, Inc. (“Starco”) falsely advertised as “Dairy-Free.” He then commenced a putative class action against Starco in the California Superior Court for the County of Santa Clara. After Plaintiff filed his first amended complaint (the “FAC” at Dkt. 1, Ex. A), Starco removed the action to this Court. See Dkt. 1 (the “Notice of Removal”). Plaintiff now moves to remand the action to state court (the “MTR” at Dkt. 8), and Starco moves to dismiss the FAC and strike Plaintiff's class allegations (the “MTDS” at Dkt. 7-1) (together with the MTR, the “Motions”). All necessary parties-Plaintiff and Starco-have consented to the jurisdiction of a magistrate judge. See Dkts. 5-6. The Court has determined that the Motions are suitable for resolution without oral argument. See Civil Local Rule 7-1(b). After considering the Parties' briefing, relevant law and the record in this action, and for the reasons that follow, the Court DENIES the MTR and GRANTS IN PART and DENIES IN PART the MTDS.
Plaintiff also sued 25 Doe defendants. See FAC ¶¶ 7-8. These Doe defendants are not “parties” for purposes of assessing whether there is complete consent to magistrate-judge jurisdiction. See Williams v. King, 875 F.3d 500, 502-505 (9th Cir. 2017) (magistrate-judge jurisdiction vests only after all named parties, whether served or unserved, consent); RingCentral, Inc. v. Nextiva, Inc., No. 19-cv-02626-NC, 2020 WL 978667, at *1 n.1 (N.D. Cal. Feb. 28, 2020) (Williams does not require consent of unnamed Doe defendants).
I. BACKGROUND
The following discussion of background facts is based on the allegations contained in the FAC, the truth of which the Court accepts for purposes of resolving the Motions. See Bastami v. Semiconductor Components Indus., LLC, No. 17-cv-00407-LHK, 2017 WL 1354148, at *3 n.2 (N.D. Cal. Apr. 13, 2017) (motion to remand); Boquist v. Courtney, 32 F.4th 764, 772 (9th Cir. 2022) (motion to dismiss); Cal. Interiors & Design v. Sentinel Ins. Co., No. 23-cv-04956-LB, 2024 WL 694478, at *2 (N.D. Cal. Feb. 19, 2024) (motion to strike). Starco manufactures, distributes and markets an alcohol-infused whipped cream throughout the United States under the brand name “Whip Shots.” See FAC ¶¶ 14-15. The company “prominently advertises and displays ‘Dairy-Free' on” the Whip Shots, including by printing that language “in a larger font than other letters or words on the” Whip Shots. See id. ¶ 17. These “Dairy-Free” representations appear on the Whip Shots themselves. See id. ¶¶ 17 (“Defendant prominently advertises and displays ‘Dairy-Free' on its Products. Defendant enhances its marketing and advertising labeling statements by prominently displaying the words ‘Dairy-Free' . . . on the Product.” (emphasis added)), 19 (“Defendant . . . label[ed] the Products as ‘Dairy-Free[.]'”).
Nowhere in the FAC does Plaintiff describe what Whip Shots actually are. Fortunately, Plaintiff includes in the FAC a link to the Whip Shots website (see FAC ¶ 15; https://www.whipshots.com/), and, as of the date of this Order, the website describes the product as a “VODKA. INFUSED. WHIPPED. CREAM.”
Understanding Starco's “Dairy-Free” representations “to mean that [the Whip Shots] did not contain any milk allergen,” Plaintiff purchased Whip Shots on two occasions: once in San Jose, California in December 2022 and once in Westchester County, New York in March 2023. See id. ¶¶ 13, 17. It turns out, however, that (1) Whip Shots do contain milk allergen, rendering their “Dairy-Free” labeling false, and (2) Starco allegedly “intended to deceive” purchasers “by labeling the [Whip Shots] as Dairy-Free' with no milk allergens.” See id. ¶¶ 15, 19. “[H]ad [Plaintiff] known that the labeling he relied on was false,” he “would not have bought the” Whip Shots. See id. ¶ 17. He subsequently sent Starco a letter on October 30, 2023, informing it of its alleged violations of law regarding the false “Dairy-Free” labeling. See id. ¶ 40.
Plaintiff now brings eight causes of action against Starco to recover for the harm he suffered as a result of the “Dairy-Free” misrepresentations, and he seeks to represent three classes of consumers-a California class, a New York class and a nationwide class-who purchased Whip Shots over an approximately five-year period, a collection of persons “exceeding] hundreds of thousands of individuals” and comprising “millions of units” in sales throughout the United States. See id. ¶¶ 23-24, 27, 35-99.
II. THE COURT WILL NOT REMAND THIS ACTION
A. Legal Standard
“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A defendant may remove a civil action filed in state court to federal district court where the district court would have original jurisdiction over the action. See 28 U.S.C. § 1441(a). However, where a district court lacks subject-matter jurisdiction over an action, the action must be remanded. See id. § 1447(c). Further, “[t]he removal statute is strictly construed, and any doubt about the right of removal requires resolution in favor of remand.” Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citation omitted).
B. Discussion
Starco offers one basis for the Court's exercise of subject-matter jurisdiction over this action: the Class Action Fairness Act (the “CAFA”). See Notice of Removal ¶¶ 1, 8, 10. Under the CAFA, a district court may exercise subject-matter jurisdiction over a class action “where: (1) there are one-hundred or more putative class members; (2) at least one class member is a citizen of a state different from the state of any defendant; and (3) the aggregated amount in controversy exceeds $5 million, exclusive of costs and interest.” See Washington v. ChimeiInnolux Corp., 659 F.3d 842, 847 (9th Cir. 2011) (citations omitted). Plaintiff does not dispute that this action satisfies the first two of these requirements and argues only that the Court lacks subject-matter jurisdiction and should therefore remand this action because Starco's “removal papers are unadorned with any evidence” that the amount in controversy exceeds the CAFA's $5 million threshold. See MTR at 1-2, 5.
However, the removal statute does not require a removing defendant to provide evidence satisfying the amount-in-controversy requirement in every case. Rather, “a defendant's notice of removal need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold[, and e]vidence establishing the amount [in controversy] is required by [the removal statute] only when the plaintiff contests, or the court questions, the defendant's allegation.” Dart Cherokee Basin Operating Co. v. Owens, 574 U.S. 81, 89 (2014) (emphasis added). Here, Plaintiff does not “contest” that the $5 million amount-in-controversy threshold is satisfied. Instead, he disputes whether Starco has provided sufficient evidence to demonstrate satisfaction of that requirement. Nowhere (in either his briefing or the FAC), however, does Plaintiff suggest or argue that the amount in controversy does not exceed $5 million. The Court also does not question Starco's allegation that the amount-in-controversy requirement is met. Thus, Starco need not submit evidence.
The remand inquiry therefore turns on whether Starco has plausibly alleged that the amount in controversy exceeds $5 million. The Court concludes that Starco has. Starco alleges that millions of Whip Shots were sold during the class period. See Notice of Removal ¶ 22. Although Starco does not allege any specific dollar value in damages per unit sold in violation of the laws in question, even a relatively small dollar value in damages per violative sale would result in an amount in controversy that exceeds $5 million. It is also plausible that recovery under Plaintiff's eighth cause of action alone for violation of Section 350 of the New York General Business Law would result in an amount in controversy that exceeds $5 million. As Starco notes in the Notice of Removal, that statute permits a minimum recovery of $500 per violation. See id. ¶ 24; N.Y. Gen. Bus. Law § 350-e. Accordingly, if 10,001 units were sold in New York in violation of that statute at $500 per violation, damages would exceed $5 million. Given that (1) New York is one of the most-populous states in the country and (2) Starco alleges that millions of sales occurred throughout the United States during the class period, it is plausible that at least 10,001 violative sales (i.e., about 1% of one million sales) occurred in New York. Thus, Starco has plausibly alleged that the amount in controversy exceeds $5 million, the Court may exercise CAFA jurisdiction over this action and the Court will not remand this action.
III. THE COURT WILL DISMISS SIX OF PLAINTIFF'S CLAIMS
Because the Court will not remand this action, it proceeds to evaluate the dismissal portion of Starco's MTDS.
A. Legal Standard
Starco moves to dismiss the FAC under both Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
Rule 12(b)(1). Under Rule 12(b)(1), a court must dismiss a complaint if it lacks subjectmatter jurisdiction over the claims asserted. A defendant can challenge a court's subject-matter jurisdiction under Rule 12(b)(1) by launching either (1) a facial attack based solely on the allegations of the complaint or (2) a factual attack based on evidence outside the pleadings. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
Rule 12(b)(6). Under Rule 12(b)(6), a court must dismiss a complaint if it “fail[s] to state a claim upon which relief can be granted.” To survive a Rule 12(b)(6) motion, a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This facial-plausibility standard requires a plaintiff to allege facts resulting in “more than a sheer possibility that a defendant has acted unlawfully.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Where a plaintiff alleges that a defendant engaged in fraudulent conduct, Rule 9(b) imposes a greater burden than does Rule 12(b)(6) and requires that the plaintiff “state with particularity the circumstances constituting fraud.” To satisfy this heightened pleading standard, a plaintiff must allege facts “specific enough to [notify the defendants] of the particular misconduct [constituting fraud] so that they can defend against the charge and not just deny that they have done anything wrong.” See Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (citation omitted). Thus, claims sounding in fraud must allege “an account of the ‘time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations.'” See Swartz v. KPMGLLP, 476 F.3d 756, 764 (9th Cir. 2007) (citation omitted). In other words, “[a]verments of fraud must be accompanied by ‘the who, what, when, where, and how' of the misconduct charged.” Kearns, 567 F.3d at 1124 (citation omitted). A plaintiff “must [also] set forth what is false or misleading about a statement, and why it is false.” See Ebeid ex rel. United States v. Lungwitz, 616 F.3d 993, 998 (9th Cir. 2010) (citation omitted).
In ruling on a motion to dismiss, a court may consider only “the complaint, materials incorporated into the complaint by reference, and matters [subject to] judicial notice.” See UFCW Loc. 1500 Pension Fund v. Mayer, 895 F.3d 695, 698 (9th Cir. 2018) (citation omitted). A court must also presume the truth of a plaintiff's allegations and draw all reasonable inferences in their favor. See Boquist, 32 F.4th at 773. However, a court need not accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1008 (9th Cir. 2018) (citation omitted).
If a court grants a motion to dismiss, it may exercise discretion to grant or deny leave to amend the complaint, and it “acts within its discretion to deny leave to amend when amendment would be futile, when it would cause undue prejudice to the defendant, or when it is sought in bad faith.” See Nat'l Funding, Inc. v. Com. Credit Counseling Servs., Inc., 817 Fed.Appx. 380, 383 (9th Cir. 2020) (citation omitted).
B. Discussion
Plaintiff asserts eight causes of action in the FAC:
• Cause Of Action One: Violation of the California Consumers Legal Remedies Act (the “CLRA”).
• Cause Of Action Two: Violation of the California False Advertising Law (the “FAL”).
• Cause Of Action Three: Breach of Express Warranty (under no particular statute or state's common law).
• Cause Of Action Four: Breach of Express Warranty in Violation of Section 2313 of the California Commercial Code.
• Cause Of Action Five: Fraud (under no particular statute or state's common law).
• Cause Of Action Six: Violation of the California Unfair Competition Law (the “UCL”).
• Cause Of Action Seven: Violation of Section 349 of the New York General Business Law.
• Cause Of Action Eight: Violation of Section 350 of the New York General Business Law.At this juncture, only the causes of action arising under New York law survive dismissal.
1. Starco's Request For Judicial Notice Is Moot
In connection with the dismissal portion of the MTDS, Starco requests that the Court judicially notice the initial complaint filed by Plaintiff in state court. See Dkt. 7-2 (the “RJN”). Having reviewed the MTDS and Starco's RJN, the Court concludes that its resolution of the dismissal portion of the MTDS would not change even if it granted the RJN and considered Plaintiff's initial complaint in its analysis. The Court therefore DENIES the RJN as moot. See, e.g., Sylabs, Inc. v. Rose, No. 23-cv-00849-SVK, 2023 WL 8813517, at *4 (N.D. Cal. Dec. 19, 2023) (denying as moot request for judicial notice where court's analysis “would not change even if it . . . considered the documents in question”).
2. Causes Of Action One, Two and Six:
Plaintiff's CLRA, FAL And UCL Claims Fail
The CLRA prohibits engaging in certain enumerated categories of “unfair methods of competition and unfair or deceptive acts or practices” in connection with selling goods and services, including misrepresenting the characteristics of those goods and services. See Cal. Civ. Code §§ 1770(a)(5), (7), (9). The FAL similarly prohibits disseminating untrue or misleading statements in connection with selling goods and services. See Cal. Bus. & Prof. Code § 17500. Likewise, the UCL prohibits engaging in “unlawful, unfair or fraudulent business act[s] or practice[s] and [disseminating] unfair, deceptive, untrue or misleading advertising.” See id. § 17200. Courts typically analyze claims under the three statutes together (see Hadley v. Kellogg Sales Co., 243 F.Supp.3d 1074, 1089 (N.D. Cal. 2017)), and the Parties do not dispute the propriety of the Court performing a combined analysis here. The Parties also do not dispute that Plaintiff's claims under these statutes sound in fraud, thereby requiring Plaintiff to satisfy the heightened pleading standard of Rule 9(b). See, e.g., In re iPhone 4s Consumer Litig., 637 Fed.Appx. 414, 415 (9th Cir. 2016) (applying Rule 9(b) to CLRA, FAL and UCL claims based on allegations concerning deceptive misrepresentations disseminated in advertising campaign).
Plaintiff mostly meets his burden, as he alleges: where and when he purchased Whip Shots; that the labels on the Whip Shots represented the products as “Dairy-Free” in a large font; that these representations were false because Whip Shots actually contain milk allergen; that Starco intentionally misrepresented the Whip Shots as “Dairy-Free” to deceive consumers; and that he would not have purchased the Whip Shots had he known the “Dairy-Free” representations were false. These allegations certainly notify Starco “of the particular misconduct [constituting fraud] so that [it] can defend against the charge and not just deny that [it] ha[s] done anything wrong.” Kearns, 567 F.3d at 1124.
However, beyond notifying a defendant of the particular misconduct alleged, Rule 9(b) also intends to ensure that the Court can “be satisfied that Plaintiff has met his burden ‘to conduct a precomplaint investigation in sufficient depth to assure that the charge of fraud is responsible and supported, rather than defamatory and extortionate.'” See Yastrab v. Apple Inc., No. 14-cv-01974-EJD, 2015 WL 1307163, at *4 (N.D. Cal. Mar. 23, 2015) (emphasis added) (citation omitted); see also Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1104 (9th Cir. 2003) (Rule 9(b) protects defendants' reputations). Based on the allegations in the FAC, the Court cannot conclude that Plaintiff's assertion of fraud “is responsible and supported” because Plaintiff does not explain how he learned or determined that (1) Whip Shots contain milk allergen in apparent contravention of their “Dairy-Free” labeling or (2) Starco knew that its “Dairy-Free” labeling was false. In the absence of such allegations, Plaintiff fails to satisfy the requirements of Rule 9(b). See, e.g., Fisher v. Eddie Bauer LLC, No. 19-cv-00857-JM, 2019 WL 9467922, at *6 (S.D. Cal. Oct. 18, 2019) (plaintiff did not satisfy requirements of Rule 9(b) where plaintiff “d[id] not explain how he knew the items he purchased were ‘direct to outlet' or how Eddie Bauer ‘direct to outlet' items can be identified”); Guertin v. One W. Bank, FSB, No. 11-cv-01531-JCM, 2012 WL 727352, at *6 (D. Nev. Mar. 6, 2012) (plaintiff did not satisfy requirements of Rule 9(b) where plaintiff “d[id] not specify . . . how she or any Defendant knew any document was fraudulent”); Ruiz v. Mortg. Elec. Registration Sys., Inc., No. 09-cv-00780-FCD, 2009 WL 2390824, at *10 (E.D. Cal. Aug. 3, 2009) (plaintiff did not satisfy requirements of Rule 9(b) where plaintiff “fail[ed] to state any factual basis for how he knew defendants ‘intentionally and fraudulently converted' plaintiff's interests in the Property”).
Accordingly, the Court will dismiss Plaintiff's CLRA, FAL and UCL claims with leave to amend.
3. Cause Of Action Three: Plaintiff's Vague Breach-Of-Express-Warranty Claim Fails
Plaintiff does not explain under which statute or state's common law he brings his third cause of action for breach of express warranty. Necessarily, therefore, he fails to state a claim upon which relief can be granted-the Court cannot even identify the claim, let alone evaluate whether Plaintiff has stated that claim. See, e.g., Claiborne v. Stater Bros. Mkts., No. 23-cv-01319-JGB, 2023 WL 8261561, at *4 (C.D. Cal. Oct. 11, 2023) (dismissing cause of action for failure to state a claim where plaintiff “names no statute or law Defendant has allegedly violated”); Scott v. Mortg. Elec. Registration Sys., Inc., No. 10-cv-02081-GMN, 2011 WL 4346360, at *4 (D. Nev. Sept. 14, 2011) (dismissing cause of action for failure to state a claim where plaintiffs “cite no statute or case law supporting the claim for relief'). Accordingly, the Court will dismiss Plaintiff's vague breach-of-express warranty claim with leave to amend.
4. Cause Of Action Four: Plaintiff's California Breach-Of-Express-Warranty Claim Fails
“In order to plead a cause of action for breach of express warranty, one must allege the exact terms of the warranty, plaintiff's reasonable reliance thereon, and a breach of that warranty which proximately causes plaintiff injury.” Hadley, 243 F.Supp.3d at 1105 (citation omitted). Under Section 2313 of the California Commercial Code, “[a]ny description of . . . goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.” Cal. Com. Code. § 2313(1)(b). Before a plaintiff can bring a claim for breach of an express warranty created under Section 2313, they must provide the defendant, “within a reasonable time after he or she discovers or should have discovered any breach,” pre-suit notice of such breach “or be barred from any remedy.” See id. § 2607(3)(A); Nilsen v. Tesla, Inc., No. 22-cv-07472-BLF, 2023 WL 7346071, at *3 (N.D. Cal. Nov. 6, 2023). Thus, “to avoid dismissal of a . . . breach of warranty claim in California, ‘ [a] buyer must plead that notice of the alleged breach was provided to the seller within a reasonable time after discovery of the breach.'” Alvarez v. Chevron Corp., 656 F.3d 925, 932 (9th Cir. 2011) (emphasis added) (citations omitted).
Here, Plaintiff alleges he provided notice to Starco of its false “Dairy-Free” representation and concurrent breach of express warranty on October 30, 2023, i.e., seven months after his second and final purchase of Whip Shots in March 2023. Yet it is not clear when Plaintiff first discovered Starco's alleged breach of warranty. If Plaintiff discovered the breach at the time of his March 2023 purchase, then his notice is deficient as a matter of law because waiting seven months to send a pre-suit notice is not reasonable. See Cal. Com. Code. § 2607 cmt. 4 (citing Pac. Com. Co. v. Greer, 129 Cal.App. 751 (1st Dist. Div. 11933)); see, e.g., Tasion Commc'ns, Inc., v. Ubiquiti Networks, Inc., No. 13-cv-01803-EMC, 2014 WL 2916472, at *11 (N.D. Cal. June 26, 2014) (seven-month delay between discovery of alleged breach and provision of notice held unreasonable as a matter of law). If, however, Plaintiff did not discover the breach until some time after his final purchase of Whip Shots in March 2023, then it is possible he did send his notice within a reasonable amount of time after discovery of the alleged breach. But the FAC contains no allegations allowing the Court to reasonably infer that Plaintiff sent his pre-suit notice within a reasonable amount of time following discovery of the alleged breach. Thus, Plaintiff has failed to state a claim upon which relief can be granted.
Presumably, Plaintiff did not discover the breach before his second purchase in March 2023, or he would not have purchased the Whip Shots a second time.
Accordingly, the Court will dismiss Plaintiff's California breach-of-express warranty claim with leave to amend.
5. Cause Of Action Five: Plaintiff's Vague Fraud Claim Fails
Plaintiff does not explain under which statute or state's common law he brings his fifth cause of action for fraud. He therefore fails to state a claim upon which relief can be granted. See, e.g., Claiborne, 2023 WL 8261561, at *4; Scott, 2011 WL 4346360, at *4. Plaintiff's failure to satisfy Rule 9(b)'s heightened pleading standard with respect to his claims under the CLRA, FAL and UCL also requires dismissal of his fraud claim. The Court also observes, as argued by Starco (see MTDS at 10) and without reaching the issue, that the economic-loss doctrine appears to bar Plaintiff's fraud claim, at least to the extent that he would pursue that claim under California law. See, e.g., Guzzetta v. Ford Motor Co., No. 21-cv-09151-MEMF, 2023 WL 5207429, at *17 (C.D. Cal. July 3, 2023) (dismissing fraud claim as barred by economic-loss doctrine where plaintiffs “do not allege a harm separate from the economic harm derived from [the defendant's] alleged breach of its warranty obligations”); Traba v. Ford Motor Co., No. 18-cv-00808-SVW, 2018 WL 6038302, at *3-4 (C.D. Cal. June 27, 2018) (granting judgment on the pleadings to bar fraud claims where “the alleged fraudulent concealment resulted only in Plaintiffs' ‘disappointed expectations' because of Defendant's alleged broken promise: the vehicle allegedly failed to conform to express and implied warranties”). Accordingly, the Court will dismiss Plaintiff's vague fraud claim with leave to amend.
6. Causes Of Action Seven And Eight: Plaintiff Does Not Lack Standing To Pursue Claims Under New York Law
In moving to dismiss Plaintiff's seventh and eighth causes of action that arise under New York law, Starco argues only that Plaintiff lacks standing to pursue these claims because he resides in California. See MTDS at 14-15; see also id. at 3. The Court disagrees. Plaintiff alleges he purchased Whip Shots in New York in reliance on their “Dairy-Free” labeling and that he would not have purchased the product had he known the “Dairy-Free” representation was false. Thus, with respect to Plaintiff's New York purchase, Plaintiff's injury and Starco's allegedly violative behavior occurred in New York, and New York law governs. See Jones v. Micron Tech. Inc., 400 F.Supp.3d 897, 908 (N.D. Cal. 2019) (“Courts in the Ninth Circuit have consistently held that a plaintiff in a putative class action lacks standing to assert claims under the laws of states other than those where the plaintiff resides or was injured.” (citations omitted)); cf. In re Carrier IQ, Inc., 78 F.Supp.3d 1051, 1075 (N.D. Cal. 2015) (“[T]he named Plaintiffs do not have standing to assert claims from states in which they do not reside or did not purchase their mobile device.”); Pardini v. Unilever U.S., Inc., 961 F.Supp.2d 1048, 1061 (N.D. Cal. 2013) (plaintiff lacked standing to pursue state-law claims for states other than those where plaintiff purchased product). Accordingly, the Court will not dismiss Plaintiff's claims that arise under New York law.
7. Plaintiff May Not Pursue Equitable Relief
Plaintiff seeks to obtain both legal and equitable relief. See FAC at 19. Starco argues that Plaintiff may not pursue equitable relief because he failed to allege that legal relief would provide him an inadequate recovery. See MTDS at 12-13. The Court agrees. A plaintiff must first establish that they lack an adequate legal remedy before they can pursue equitable relief. See Sonner v. Premier Nutrition Corp., 971 F.3d 834, 844 (9th Cir. 2020). Plaintiff does not allege or argue in the FAC or his briefing that he lacks an adequate remedy at law. Instead, he argues only that he may pursue equitable relief as an alternative to legal relief. See Dkt. 9 at 10-11.
But whether Plaintiff may pursue different forms of relief in the alternative is irrelevant; he must still provide allegations sufficient to demonstrate his entitlement to each form of relief requested. In other words, “[t]he issue is not whether a pleading may seek distinct forms of relief in the alternative, but rather whether a prayer for equitable relief states a claim if the pleading does not demonstrate the inadequacy of a legal remedy. On that point, Sonner holds that it does not.” Sharma v. Volkswagen AG, 524 F.Supp.3d 891, 907 (N.D. Cal. 2021) (citation omitted); accord Shay v. Apple Inc., No. 20-cv-01629-GPC, 2021 WL 1733385, at *5 (S.D. Cal. May 3, 2021). To hold otherwise would allow a plaintiff to avoid the requirement of pleading the inadequacy of legal remedies when seeking equitable relief by simply tacking on a request for legal relief in the alternative. The Court will not permit such an outcome. Notably, every decision cited by Plaintiff in support of his alternative-relief argument predates Sonner. Accordingly, the Court will dismiss Plaintiff's request for equitable relief with leave to amend.
* * *
In sum, only Plaintiff's claims arising under New York law survive dismissal, and Plaintiff may not seek equitable relief. The Court will grant Plaintiff leave to amend all of his claims and his request for equitable relief.
IV. THE COURT WILL NOT STRIKE PLAINTIFF'S CLASS ALLEGATIONS
Because some of Plaintiff's claims survive dismissal, the Court proceeds to evaluate the strike portion of Starco's MTDS.
A. Legal Standard
Under Rule 12(f), the Court “may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” “The function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial . . . .” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (citation omitted). “In most cases, a motion to strike should not be granted unless ‘the matter to be stricken clearly could have no possible bearing on the subject of the litigation.'” Mason v. Ashbritt, Inc., No. 19-cv-01062-DMR, 2020 WL 789570, at *4 (N.D. Cal. Feb. 17, 2020) (citation omitted). “The decision as to whether to strike allegations is a matter within the Court's discretion.” Graves v. Sw. & Pac. Specialty Fin., Inc., No. 13-cv-01159-SBA, 2013 WL 5945851, at *2 (N.D. Cal. Nov. 4, 2013) (citation omitted).
B. Discussion
Starco moves to strike the class allegations from the FAC for two reasons: (1) the proposed classes encompass individuals who suffered no injury as a result of the alleged misrepresentations or “have not been injured[] in the way that Plaintiff is alleged to be injured,” rendering those classes “not certifiable,” and (2) given the nationwide scope of one of Plaintiff's three proposed classes, “the Court would . . . be required to consider the nuances of law differing between 50 States, as well as the availability of proposed damages under each,” rendering the class-action vehicle “not [a] superior method of adjudication under Rule 23(b)(3).” See MTDS at 13-15.
Courts rarely strike class allegations prior to the discovery and class-certification stages of litigation. See TopDevz, LLC v. LinkedIn Corp., No. 20-cv-08324-SVK, 2021 WL 3373914, at *11 (N.D. Cal. Aug. 3, 2021). Some district courts have even gone so far as to hold that motions to strike under Rule 12(f) are simply “not the proper vehicle for seeking dismissal of class allegations.” See Tasion Commc'ns, Inc., v. Ubiquiti Networks, Inc., No. 13-cv-01803-EMC, 2014 WL 1048710, at *3 (N.D. Cal. Mar. 14, 2014) (citations omitted). That is certainly the case here, as Starco's arguments concern only the propriety of certifying Plaintiff's proposed classes; its arguments do not implicate any purportedly “insufficient defense or any redundant, immaterial, impertinent, or scandalous matter” as required by Rule 12(f). See, e.g., Gutierrez v. C&H Sugar, Inc., No. 23-cv-03192-SI, 2023 WL 7927771, at *7 (N.D. Cal. Nov. 15, 2023) (“[Defendant strays from the legal standard for motion to strike pleadings under Rule 12(f) and instead offers argumentation regarding ‘speculative factual defenses to Plaintiff's anticipated arguments in support of class certification.'” (emphasis and citation omitted)); Ortiz v. Amazon.com LLC, No. 17-cv-03820-JSW, 2017 WL 11093812, at *2 (N.D. Cal. Oct. 10, 2017) (“To the extent Defendants rely on Rule 12(f), the Court concludes the class allegations are not redundant, immaterial, impertinent, or scandalous.” (citation omitted)).
Were the Court to nevertheless ignore the standard set by Rule 12(f) and evaluate whether Plaintiff's class allegations satisfy the requirements of class certification under Rule 23, it would effectively give Starco two bites at the apple of combating certification: once now at the pleading stage and once later in opposing an eventual motion for class certification. The Court cannot sanction such a result. Cf. Whittlestone, 618 F.3d at 974 (“Were we to read Rule 12(f) in a manner that allowed litigants to use it as a means to dismiss some or all of a pleading . . . we would be creating redundancies within the Federal Rules of Civil Procedure, because a Rule 12(b)(6) motion (or a motion for summary judgment at a later stage in the proceedings) already serves such a purpose.”).
Accordingly, the Court will not strike Plaintiff's class allegations.
V. CONCLUSION
For the foregoing reasons, the Court DENIES the MTR and GRANTS IN PART and DENIES IN PART the MTDS as follows:
• The Court DISMISSES causes of action one through six WITH LEAVE TO AMEND.
• The Court DECLINES to dismiss causes of action seven and eight.
• The Court DISMISSES Plaintiff's request for equitable relief WITH LEAVE TO AMEND.
• The Court DECLINES to strike Plaintiff's class allegations.
The Court also vacates the initial case-management conference currently scheduled for May 7, 2024. If Plaintiff elects to file an amended complaint, he shall do so by May 10, 2024. If Plaintiff does not file an amended complaint by that date, the Court will re-schedule the initial casemanagement conference.
SO ORDERED.