look for the appellant to carlo good morning in may please the court first for me for the new age of video i'm going to try to reserve five minutes of my time for  rebuttal and i understand that you've already delved into some of the issues presented here this is an appeal from an order dismissing the plaintiff's case at the pleading stage the district court's reasons for the dismiss wrongful conduct by the defendants that violated any provisions of california law and the second is that the allegations of the second made a complaint were not sufficient to show that a carload suffered any injury in fact which is a necessary predi for both article three standing and a stated claim under the california statutes i had intended to discuss the the allegations of wrongful conduct first because it seems to me that without that predicate it's hard to show what that injury was but my understanding from the brief discussion i had with mr kabateck was the court had particular interest in what our allegations were that showed that we had pleaded that mr de carlo had suffered any harm so i can address either issue but if you don't have a preference i would think it made sense to start with whether there were adequate allegations of violations of law and then to show how mr de carlo was affected it is helpful to you counsel my primary question has to do with whether you adequately pleaded lack of independence ok i think that the the lack of independence is both expressly pleaded and is appropriately inferred from the factual allegations that describe the relationship between cosco  the three relevant to statutory provisions and then the regulation that supports them and but it is the essence is that the statutes section former section six fifty five forbids certain kinds extends to both direct relationships and indirect relationships so you can have a landlord tenant relationship directly or indirectly between the r t o and the optometrist and so what you're doing is telling me why you think the leas well what we have pleaded in these allegations and you can either go through them specifically but i'll start by summarizing if you have any questions are that the nature of the lease agreement gives cosco the defendants the right to control and they do in fact exercise or attempt to exercise control over significant aspects of the optometrist practice the hours that they're available the prices that they charge the we specifically say it paragraph sixty four thing or seventy four that as a result of  i have it laid out which is this is paragraph seventy four so it's to e r page sixty four paragraph seventy four says in fact rhodes as with every other tenet optometrists and costco store throughout california was representation that rose was an independent doctor of optometry rhodes was subject to defendant's control and influence regarding material aspects of our day to day practice including at minimum the hours of operation the fees that she charged the services she advertised the certainly do rely on what you sent that we lay out the specifics of the lease terms and there then we allege the way that those terms are in fact applied to the tenant optometrists we cite statements from other costco up tama trusts that have said that they were pressured to do the various things and so we draw a line in essence of saying a connection between the ability of these these provisions that give cosco and b are the right or the ability to influence and to direct the practice of the optometrists and then we show that it's not just a theoretical problem that there are  who have testified that that is exactly what happens i think that there are therefore these are sufficiently concrete factual allegations that under it paul and twamley they can't just be disregarded they're not pleading the bare bones of a formal complaint that we so forgive me forgive me for interrupting but again i'm asking about what allows us to make the reasonable inference in my questions pacifically is are you saying it's not it's a reasonable inference because we have other optometrists who who ha that would mean that that person in this case dr richards gave a they're professional independence they the allegations are that costco wanted a high volume high turnover practice to wri as many prescriptions as possible for the kinds of things that costco sold in its optical department so therefore instead of maybe recommending lasik or not you know i wear i wear glasses as do you  do so i walk in i see i go by and i see this costco ad and i get an appointment and i walk in and dr rhodes and dr rhodes says nothing wrong with your eyes i pay forty nine dollars what these arrangements that she had with costco and the the other an m b m b n r how did that strike to her independence we specifically  alleged that or given examples that cost go up tom interests are not allowed to advertise or or and discourage from discussing the lasik for example as a treatment if you wanted a permanent correction of near sightedness because cus code doesn't plaintiffs here you know that that's a general allegation isn't an allegation that let me take a step back the purpose of these statutes in california is to avoid the opticians from having economic pressure or leverage or being able to influence the practice of ating whether the people who filed this litigation have the standing to make that allegation ok that mr carlo has pleaded that had he known about the relationships and had he not been told that that the cosco thomas was independent and if he had understood the realities of the situation he wouldn't have signed up for a exam with a cosco tom interest that's enough to satisfy article three standing under  store impacted her professional judgment well it sounds like the argument you're making is that we have an element of making a u c l claim would have to show that there was something substantively flawed in in the examination i  you may not be able to show that i don't know how you show that based on these sets of facts without somebody who got a diagnosis that was different to what they should have received because of the lack of independence just fisher  in the national association of up thomas reese versus brown decision from this court was a two thousand and nine decision it page five twenty six this court explained that the purpose of section five fifty six was that california had sought to protect the palm interests from being affected by subtle pressures from commercial interests and said that this is a quote potentially even a landlord tenant relationship could undermine health care quality if the landlord required a certain level of performance to maintain the lease that's precisely what we've alleged that in order to keep their leases the atomic force that cost the leases their space to have to do it cost goes way and they have to have a high volume practice that stresses the things that cosco sells and doesn't talk about or discuss or recommend the things that costco doesn't sell us craft or post prop sixty four wasn't that would that be a job of the california attorney general the rubble of that no your honor proposition sixty four as this court explained it and he was to make sure that you couldn't have people who never wanted to purchase at the thought the product of all just go out and  ever said this kind of arrangement the cost going to be an hour is illegal  there's a host of going back we discussed that in the complaint i i i don't know that there's a specific there have been challenges to the statute and the statute been upheld i don't know there's been a court that specifically hells the opt optician liable for renting space but the statute says you are not allowed to be a landlord directly or indirectly the regulation supporting it says that if there is going to be a lease with an optometrist the optometrist has to be independent in every aspect of the practice yeah i'd like to thank mis representation claim which has been the focus is this different from you know those this case is very different from you know host for a fundamental reason in the in he knows it was undisputed that there was a misrepresentation the the goods were advertised as fact independent he only had a number of alligator they make a number of allegations and it is we've just heard and in the end he says well  this sign was a costco independent tom address he says well if i'd known that they really were an independent i never i wouldn't pay five bucks for a night exam let alone forty nine why isn't you know who's because in he knows there was a misrepresentation and here there isn't one he hasn't properly alleged that dr rhodes was not independent and the allegations in the complaint almost exclusively go to other optometrists and to take just the right there because i think that their strongest argument here that the leases were all the same and that we should make this reasonable inference inferences that they were not independent isn't that their strongest argument like that not enough i think that is their argument and it's not enough because what they've taken is as a couple of anecdotal examples about other optometrist without any detail and they are trying to it's a separate inquiry and that and that and the argument you're making one is one that strikes me as really doing considerable violence tourists are standing jurisprudence that's my concern i'm going to get a chance to respond your honor i don't think it is because of the argument we're making is is risk limited to the four corners of this complaint and its inadequacies and while the plaintiffs are of course entitled to reasonable inferences they have to be reasonable and pointing to one or two examples for of other optometrists and therefore well that must mean that dr rhodes was also not independent is simply not adequate they want to they spoke he spoke you know in other cases hold that a plaintiff even a lead class representative has to injury as to him or herself this and to piggyback on a hypothetical the judge fisher asked this would be like if in kwikset the plaintiffs said well maybe the lockset that i got was made in the usa but a lot such that some of these other customers bought weren't that would be it's absolutely breath strikes me as a stretch because i think it's uncontested the leases were identical and i've got other folks who worked and the same terms and felt this kind of pressure so what's a response to that specific question because for me that's the  is of course by their terms guarantee the independence of the optometrist and they were lying on simple generic commercial terms between landlord and tenant and i think i'd like to go to answer your question judge fisher to paragraph seventy four which is the paragraph in the complaint that my colleague on the other side pointed to as the nub of his allegation this is page sixty four of the excerpts of record and really all this is is a summing up of the allegations as to other up thomas he said he states that dr rhodes must have been subject to the same exact controlling influence as the former pasko optometrist whose experiences were related earlier in the complaint and critically in the next sentence he says that rhodes was subject to defend its control and influence citing the provisions of the contract but there's no allegation that costco or our m b and our ever used this supposed this theoretical ability to control with respect to dr rhodes there's no allegation that it told her to write prescriptions that were unwarranted there's no allegation that there is the allegation or the contention what they want to show is that just the way this whole inference your honor from based on one or two stray examples when you've got a contract that by its terms guarantees independence and he hasn't alleged for instance one can imagine someone alleging i got a prescription for glasses but then i went to another  me my eyes were fine i didn't need glasses that would be an example perhaps of an allegation of a lack of independence with respect to dr rhodes there's simply no allegation like that here but that that would be a different claim entirely that would be a claim that's sort right right your honor but he has to allege that somehow the exam he received was not independent that whatever doctor rhodes did in that exam room and he doesn't have any allegations about it at all was not the product her exercise of independent medical judgment but was instead the product of coersion or control by m b n r r cosco and there's simply no allegation like that here he doesn't even allege that he got a prescription there's nothing about this exam there's nothing about d rhodes herself there's nothing about her relationship with anyone at m b an r or costco other than the generic terms of the contract so he hasn't shown that there was any harm here that he himself didn't get the benefit of a bargain actually make an allegation with respect to this eye exam and tried he tried and failed to show some kind of connection between the suppose it lack of independence and the i examine here the second amended complaint that comes up before this court simply on standing yes your honor no injury in fact no injury in fact i read it is no traceability and and then you could say that well he also did that under for statutory standing purposes as well because the focus sufficient to me to know who those whether they can prove any of this whether they can get beyond a summary judgment you know maybe they've got a tough road but i'm still having a hard time getting taking your approach or your understanding of a no host in light of the allegations that are here and in light of what was alleged and you know what you are he knows didn't deal with the issue that we've been talking about today because there was no dispute and he noticed that there was a misrepresentation and the only issue there was what flowed from that here were asking the anterior question that wasn't presented in he knows which is is there actually an allegation of a misrepresentation allege that the doc they allege that there was a sign in cosco that said independent of tom a tryst right yes and then they allege all these facts say well you know it wasn't it wasn't it wasn't an write you anything nothing for that well there is right there is the wrinkle that he says as my counsel co counsel in the wal mart case pointed out that he says the exam was too cheap which is another distinguishing feature here but i think it's the all that other stuff in your honour's question where this falls down because yes he says i was promised an independent dr of optometry he no says if you're not delivered what you were promised you don't get the benefit of the bargain here he was delivered that he had put to put it more precisely in the context of the pleading stage he hasn't properly alleged that he didn't get what he was promised he needed to plead that he didn't get an independent doctor of optometry and he didn't plead that here shifting if i could and i want to see a few minutes to mr byrne from indian are but just to quickly jump to the unlawfulness just point because they've made a separate argument there and that falls down under plain article three standing spokeo that you can't just allege a bare statutory violation and say and say that i'm harmed and then under demeter versus taxi which wal mart council also called out and that both parties have submitted as a twenty ha it's clear under california day they argue that well because we've alleged these technical violations of these various statutes and i paid for this product therefore the economic injury is the amount that i paid and what california law says as most chris we presented in the meter versus taxi is that if the panel decides that standing has been adequately play pled in this case then i would urge the court to exercise its discretion to also reach the alternative grounds for a firm as firm insist to my client pure legal issue this before the court has been fully briefed both below and in this court and it was essentially at least on the restitution point just decided by judge houston in the reasoning of his decision the examination issue in this case occurred in two thousand and twelve and if ambien are is to go back down with cosco to further litigate it will be many years before we return to this court again in a case where there is no claim against my client  specifically under the u c l you need to have a remedy in order to have a claim and here there is no remedy there is no injunction sought the primary relief under the u c l plaintiff concedes the standard here is the price paid minus the value received and his own allegation is that as a result of the unlawful activity he paid a lower price than he otherwise would have so he has no economic injury to recover under arrest the same applies to the false advertising law claim again he no restitution there and in fact he hasn't even pled that the alleged advertising was from n v in our he only pleads that that was from costco and then finally on to the first amended complaint the c l r claim was not alleged against and b an r in the first amended complaint and that's why it was not removed at that time so we just urge affirm it's on the separate alternative ok thank you thank you i think for my purposes what's important is that the legislature has declared prophylactic lee that certain types of relationships between opticians optometrists are forbidden because it was the legislators judgment that those relationships undermined the independence of the optometrist and they wanted to prevent that pressure from being there and i do not believe that optometrist i'm sorry that opticians could violate those statutes and then defend the violation by saying well maybe we entered into the improper relationships but it didn't actually have any effect the legislature made the judgment that by prohibiting these these relationships you didn't need to get into the specifics of did this particular lease provision affect this particular optometrists you do it in a generalized level the allegations are clear that the defendants here their relationships did violate these statutes we that you have a very clear indirect landlord tenant relationship you don't have independence in every aspect of the relationship and as a result you have a lack of independence that the legislature said is forbidden and it is appropriate and sufficiently alleged in the complaint that there was a lack of independence and i'm out of touch it would you just address the value it would have to be the differential between what people would pay from a captive optometrist versus one that was if they knew it was independent and that's going to take an economist you know