1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9EASTERN DISTRICT OF CALIFORNIA

1011DAVID ANDINO, individuallyand on behalf of all others
similarly situated,

12
13

Plaintiff,

14

2:20-cv-01628-JAM-AC

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’SMOTION TO DISMISS

v.

15

No.

APPLE, INC., a California
Company,

16

Defendant.

17
I.

18

FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND1Apple Inc. (“Defendant”) is one of the world’s largest

19
20

computer and phone manufacturers and retailers.

First Am. Compl.

21(“FAC”) ¶ 1, ECF No. 11.

22

consumers to “Rent” or “Buy” movies, television shows, music and23

other content.

24

movie, Apple advertises that for a fee of around $5.99, the25

consumer will have access to the movie for 30 days and then forApple’s iTunes application allows

Id. ¶¶ 1, 2.

If the consumer desires to “Rent” a

26
27
28

This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing wasscheduled for February 23, 2021.
11

148 hours after the consumer first starts to watch it.

2

For a higher fee of around $19.99, Apple offers consumers the3

option to “Buy” the content.

4“Buy” the content, it then appears in their “Purchased” folder.

5

Id. ¶ 13.

Id. ¶ 4.

Id. ¶ 3.

When a consumer opts to

6

David Andino (“Plaintiff”) argues this labeling is deceptive

7

as the use of a “Buy” button and representation that content has

8been “Purchased” leads consumers to believe their access cannot

9

be revoked.

10

reserves the right to terminate the consumers’ access and use of11

content at any time, and in fact, has done so on numerous

12

occasions.

13purchased the content or would not have paid as much, if he had

14

known that his access and use could be terminated at any time.

15

Id. ¶ 25.

16

on behalf of himself and those similarly situated, for violations

17of (1) California’s Consumers Legal Remedies Act (“CLRA”);

18(2) California’s False Advertising Law (“FAL”); and19(3) California’s Unfair Competition Law (“UCL”). ECF No. 1. After20

the complaint was amended to add a fourth claim for Unjust

21

Enrichment, ECF No. 11 (“FAC”), Apple brought this Motion to22

Dismiss.

23

opposed the Motion.

24

ECF No. 20.

25

part and DENIES in part Apple’s Motion to Dismiss.

Id. ¶ 15.

Id. ¶ 16.

Plaintiff alleges this is untrue as Apple

Plaintiff claims he would not have

Accordingly, Plaintiff filed a class action complaintDef.’s Mot. to Dismiss (“Mot.”), ECF No. 16.
Opp’n, ECF No. 19.

Apple replied.

Plaintiff
Reply,For the reasons set forth below, the Court GRANTS in

26

II.

OPINION

27

A.

Legal Standard

28

A defendant may move to dismiss for lack of subject matter2

1jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of2

Civil Procedure.

3

lacks standing under Article III of the United States

4Constitution then the court lacks subject-matter jurisdiction,

5and the case must be dismissed.

See Maya v. Centex Corp., 658

6F.3d 1060, 1067 (9th Cir. 2011).

Once a party has moved to7dismiss for lack of subject-matter jurisdiction under Rule8

12(b)(1), the opposing party bears the burden of establishing9

the court’s jurisdiction.

10Co., 511 U.S. 375, 377 (1994).

11Fed. R. Civ. P. 12(b)(1).

If the plaintiff

See Kokkonen v. Guardian Life Ins.

A Rule 12(b)(6) motion challenges the complaint as not12

alleging sufficient facts to state a claim for relief.

Fed. R.

13

Civ. P. 12(b)(6).

14

12(b)(6)], a complaint must contain sufficient factual matter,15

accepted as true, to state a claim for relief that is plausible16

on its face.”17(internal quotation marks and citation omitted).

18“detailed factual allegations” are unnecessary, the complaint

19

must allege more than “[t]hreadbare recitals of the elements of20

a cause of action, supported by mere conclusory statements.”

21

Id.

22

the non-conclusory ‘factual content,’ and reasonable inferences23

from that content, must be plausibly suggestive of a claim

24

entitling the plaintiff to relief.”

25

572 F.3d 962, 969 (9th Cir. 2009).

“To survive a motion to dismiss [underAshcroft v. Iqbal, 556 U.S. 662, 678 (2009)While“In sum, for a complaint to survive a motion to dismiss,

Moss v. U.S. Secret Serv.,

26

B.

27

Article III of the Constitution limits the jurisdiction of28

Article III Standing

federal courts to actual “Cases” and “Controversies.”
3

U.S.

1

Const. art. III, § 2.

2

requirement is that plaintiffs must establish that they have3

standing to sue.”4408 (2013) (internal quotation marks and citation omitted).

5

establish standing “a plaintiff must show (1) [they have]6

suffered an injury in fact that is (a) concrete and7particularized and (b) actual or imminent, not conjectural or

8

hypothetical; (2) the injury is fairly traceable to the9challenged action of the defendant and (3) it is likely, as

10

opposed to merely speculative, that the injury will be redressed11

by a favorable decision.”

12

Envtl. Serv. Inc., 528 U.S. 167, 180-81 (2000).

13“One element of the case-or-controversy

Clapper v. Amnesty Int’l USA, 568 U.S. 398,
To

Friends of the Earth, Inc. v. Laidlaw

The parties dispute whether Plaintiff has alleged an injury

14

in fact.

15

it describes as the possibility that the purchased content may

16

one day disappear — is not concrete but rather speculative.

17

Mot. at 6-9.

18

misconstrues the injury.

19

not that he may one day lose access to his content.

20

Rather the injury Plaintiff asserts, is that he spent money

21

purchasing the content that he wouldn’t have otherwise as a22

result of Apple’s misrepresentation.

23

time of purchase.

24Apple argues that Plaintiff’s alleged injury — which

This, however, as Plaintiff points out,
Plaintiff responds that his injury is

Id.

Opp’n at 7.

This occurred at the

To establish standing, Plaintiff need only allege an

25

economic injury in fact.

See Reid v. Johnson & Johnson, 780

26

F.3d 952, 958 (9th Cir. 2015)(explaining that California’s

27

standing requirements for the UCL, FAL, and CLRA only require28“an economic injury-in-fact, which demands no more than the4

1

corresponding requirement under Article III of the2Constitution.”)3

this requirement if they show that, by relying on a4

misrepresentation on a product label, they ‘paid more for a

5

product than they otherwise would have paid, or bought it when

6

they otherwise would not have done so.’”7

v. Kohl’s Corp., 718 F.3d 1098, 1104 n. 3, 1108 (9th Cir. 2013))

8(also citing POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102,9108 (2014) for the proposition that “[a] consumer who is10

hoodwinked into purchasing a disappointing product may well have11

an injury-in-fact cognizable under Article III”).

“In a false advertising case, plaintiffs meet

Id. (quoting Hinojos

12

In Reid, the Ninth Circuit found that plaintiff had

13

undoubtedly satisfied this requirement “as he alleged that he14

would not have been willing to pay as much as he did for

15

Benecol, if anything, if he had not been misled by McNeil’s

16

misrepresentations about Benecol’s health effects.”

17

958.

18

been willing to pay as much for the content, if anything, if he19

had not been misled by Apple’s misrepresentations about his

20ability to indefinitely access that content.

21

55-58, 68-71.

22

Apple contends, that he may someday lose access to his purchased

23

content.

24

paid either too much for the product or spent money he would not25

have but for the misrepresentation.

26

concrete and actual, not speculative as Apple contends,

27

satisfying the injury in fact requirement of Article III.

28

Reid v. Johnson & Johnson, 780 F.3d 952, 958 (9th Cir. 2015).

780 F.3d at

Similarly, Plaintiff alleges here that he would not have

See FAC ¶¶ 23-25,

Thus, the injury Plaintiff alleges is not, as

Rather, the injury is that at the time of purchase, he

5This economic injury is

See

1

For the same reasons, the Court finds Plaintiff has also met the2statutory standing requirements for the UCL, FAL, and CLRA.

3(explaining that California’s standing requirements for the UCL,

4

FAL, and CLRA only require “an economic injury-in-fact, which

5

demands no more than the corresponding requirement under Article

6

III of the Constitution.”)7

Id.

Further, in Davidson v. Kimberly-Clark Corporation, the8Ninth Circuit held that “[a] consumer’s inability to rely on a9

representation made on a package, even if the consumer knows or

10

believes the same representation was false in the past, is an11

ongoing injury” sufficient to confer standing to seek injunctive

12

relief.

13

Ninth Circuit rejected the argument that “plaintiffs who are

14

already aware of the deceptive nature of an advertisement are15

not likely to be misled into buying the relevant product in the16

future and therefore, are not capable of being harmed again in17

the same way.”18

citation omitted).

19

advertisement or label was false in the past does not equate to20

knowledge that it will remain false in the future.”

21“In some cases, the threat of future harm may be the consumer’s

22plausible allegations that she will be unable to rely on the23

product’s advertising or labeling in the future, and so will not24purchase the product although she would like to.

25cases, the threat of future harm may be the consumer’s plausible

26

allegations that she might purchase the product in the future,27

despite the fact it was once marred by false advertising or

28labeling, as she may reasonably, but incorrectly, assume the889 F.3d 956, 961 (9th Cir. 2018).

In so holding theId. at 968 (internal quotation marks and
The Court noted “[k]knowledge that the6

Id. at 969.

In other1
2

product was improved.”

Id. at 969-70.

Apple argues that Plaintiff has not alleged a valid future

3

threatened injury under Davidson as he neither alleges “he4stopped buying Digital Content, nor does he allege any changes

5to the iTunes Store that ‘reasonably’ cause him to ‘assume’ that6

the Digital Content has ‘improved.’”7

the Court does not read Davidson so narrowly.

8clear from Davidson that a plaintiff’s allegation that they will9

not be able to rely on a product’s advertising or labeling is10

sufficient to demonstrate a future threatened injury, conferring

11

standing to seek injunctive relief.

12971-72 (“Davidson faces the similar injury of being unable to13

rely on Kimberly-Clark’s representations of its product in14

deciding whether or not she should purchase the product in the15

future.”)16

Def.’s Mot. at 10.

But

Rather, it seems

See Davidson, 889 F.3d atHere, Plaintiff has alleged just that.

Plaintiff claims he17will not be able to rely on Apple’s purchase option to know

18

whether the content will be available indefinitely or not.

19¶¶ 59, 72, 90; see also Opp’n at 8.

20

that is certainly impending, establishing Article III standing21

to assert a claim for injunctive relief.

22

at 972.

23

FAC

This is a threatened injury

See Davidson, 889 F.3d

Because Plaintiff has alleged an economic injury and a24

threatened future injury, the Court finds Plaintiff has

25

demonstrated standing sufficient to overcome this motion to26

dismiss.

27

lack of standing and 12(b)(6) Motion to Dismiss for lack of

28

statutory standing are DENIED.

Accordingly, Apple’s 12(b)(1) Motion to Dismiss for

7

1

C.

Rule 9(b)2Rule 9(b) provides that: “[i]n alleging fraud or mistake, a3

party must state with particularity the circumstances

4

constituting fraud or mistake.

5other conditions of a person’s mind may be alleged generally.”

6Fed. R. Civ. P. 9(b).

7

CLRA, and UCL that are based on fraudulent conduct must satisfy

8

Rule 9(b).

9(9th Cir. 2009).

10“who, what, when, where, why, and how, of the conduct charged.”11

Id. at 1126.

12

requires that the plaintiff or plaintiffs identify specific13

advertisements and promotional materials; allege when the14plaintiff or plaintiffs were exposed to the materials; and15

explain how such materials were false or misleading.”

16

Mills, 944 F.Supp.2d 806, 815 (N.D. Cal. 2013).

17

Malice, intent, knowledge, andClaims alleging violations of the FAL,

See Kearns v. Ford Motor Co., 567 F.3d 1120, 1125
This requires that the plaintiff plead the“[I]n a deceptive advertising case, Rule 9(b)Janney v.

Here, Plaintiff has identified specific promotional

18

materials.

Specifically, he alleges that consumers are given19

the option to “Buy” digital content in a variety of ways via a20

smart phone, computer or tablet, through the iTunes app or on

21

Apple TV.

22

sample of this option on the iTunes Store, including a picture

23of the options for “Sonic The Hedgehog”; “Westworld, Season 3”;

24

and “Bridges Live: Madison Square Garden”.

25

Plaintiff has also explained how such materials are false or

26

misleading as he notes that reasonable consumers expect “buying”

27

the content means access cannot be revoked.

28

he explains how this is untrue as Apple reserves the right

FAC ¶ 2.

Plaintiff then includes a representative8

See id. at 2-3.

Id. ¶ 15.

However,1terminate the consumers’ access and use at any time.

2

17.

3

bought a movie or acted on the “Buy” representation, he has.

4

See id. ¶ 25 (“Had Plaintiff and Class members known the truth,

5

they would not have bought the Digital Content from Defendant or

6

would have paid substantially less for it.”) (emphasis added);7

see also id. ¶ 53 (“Defendant has violated the CLRA by

8

representing that the Digital Content it sold to Plaintiff and9

the Class had been ‘purchased’”) (emphasis added); id. ¶ 58

10(“Plaintiff and the Class members paid for Digital Content they11

thought they were purchasing”) (emphasis added).

12

Id. ¶¶ 16,

And while Apple contends Plaintiff has not alleged heThus, the only remaining question is whether Plaintiff has

13

sufficiently pled the “when.”14

exactly when he or the other class members were exposed to these15

representations, the class consists of those who purchased

16

content from August 13, 2016 through class certification and17

trial.

18

sufficient.

191100 (C.D. Cal. 2012) (finding Rule 9(b) was satisfied where

20

plaintiffs alleged that the representation appeared on product21

labeling throughout the class period); see also United States v.

22

United Healthcare Insurance Company, 848 F.3d 1161, 1180 (9th23

Cir. 2016) (“a complaint need not allege a precise time frame,

24

describe in detail a single specific transaction or identify the25

precise method used to carry out the fraud” to comply with

26

Rule(9)(b))(internal quotation marks and citation omitted).

27

Plaintiff need not plead the exact date(s) he made his purchases

28

to provide Apple with adequate notice to defend the charges as

Id. ¶ 32.

While Plaintiff does not specify

The Court finds this allegation is

See In Re ConAgra Foods Inc., 908 F.Supp.2d 1090,

9

1

this is a class action and Apple will have to defend the2representations made throughout the class period anyway.

3

Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009)4(noting one of the purposes of Rule 9(b) is to provide

5

defendants with adequate notice to allow them to defend the6charge); see also Bly-Magee v. California, 236 F.3d 2014, 20197

(9th Cir. 2001) (“To comply with Rule 9(b), allegations of fraud

8

must be specific enough to give defendants notice of the9particular misconduct which is alleged to constitute the fraud

10charged so that they can defend against the charge and not just11

deny that they have done anything wrong.”) (internal quotation

12

marks and citation omitted).

13

enough specificity to satisfy Rule 9(b).

SeePlaintiff has pled his claims with

14

D.

Reasonable Consumer

15

California’s UCL prohibits “any unlawful, unfair or

16

fraudulent business act or practice and unfair, deceptive,

17

untrue or misleading advertising.”

18§ 17200.

19

advertising.

20“unfair methods of competition and unfair or deceptive acts or21

practices.”

22

CLRA, conduct is deceptive or misleading if it is likely to23

deceive a “reasonable consumer.”

24

Co., 552 F.3d 934, 938 (9th Cir. 2008).

25

consumer standard, [plaintiffs] must show that members of the26

public are likely to be deceived.”

27

marks and citations omitted).

28“reasonable consumer” standard is higher than a “mereCal. Bus. & Prof. CodeCalifornia’s FAL prohibits any “untrue or misleading”
Id. § 17500.

And California’s CLRA prohibits

Cal. Civ. Code § 1770(a).

Under the UCL, FAL, andWilliams v. Gerber Products“Under the reasonable

Id. (internal quotation

The threshold for this10

1

possibility” that the label “might conceivably be misunderstood2

by some few consumers viewing it in an unreasonably manner.”

3

Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496, 508

4(2003).

5a likelihood “that a significant portion of the general6

consuming public or of targeted consumers, acting reasonably in7

the circumstances, could be misled.”

8“have recognized that whether a business practice is deceptive

9

will usually be a question of fact not appropriate for decision10

on demurrer.”

11

situations is granting a motion to dismiss on this basis

12

appropriate.

13

Instead, the reasonable consumer standard necessitates

Id.

Williams, 552 F.3d at 938.

California courts

Only in rare

Id. at 939.

Apple argues that Plaintiff has failed to state a claim

14

because he mischaracterizes the “Buy” and “Purchased” language15

and views it in an unreasonable manner.

16

contends that “[n]o reasonable consumer would believe” that

17purchased content would remain on the iTunes platform

18

indefinitely.

19

means to acquire possession over something.

20

merriam-webster.com, https://www.merriam-21

webster.com/dictionary/buy (13 April 2021).

22

at least at the motion to dismiss stage, that reasonable23

consumers would expect their access couldn’t be revoked.

24

Williams, 552 F.3d at 939 (noting that only in a rare situation

25

will granting a motion to dismiss based on whether a business26

practice is deceptive be appropriate).

27

because a user can download purchased content for full and28

irrevocable access, the “Buy” and “Purchased” language isId. at 12.

Mot. at 11.

Apple

But in common usage, the term “buy”

11

Buy Definition,

It seems plausible,

See

Apple also argues that

1

accurate.

But the Court cannot consider such factual2

contentions at the motion to dismiss stage.

3

Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (explaining

4“factual challenges to a plaintiff’s complaint have no bearing

5on the legal sufficiency of the allegations under Rule6

12(b)(6).”)

7

E.

8

Lastly, Apple contends that under Sonner v. Premier

See Lee v. City of

Equitable Restitution Claims

9

Nutrition Corp, 971 F.3d 834 (9th Cir. 2020), Plaintiff’s claims

10

for equitable restitution under the CLRA, FAL, UCL, and unjust

11enrichment must be dismissed as Plaintiff has failed to12establish the requested CLRA damages are inadequate.

13

Mot. at 14.

14

explicitly withdraws his unjust enrichment claim based on this15

precedent.

16

Sonner does not prevent Plaintiff’s injunctive relief but saying

17

nothing about his claims for equitable restitution).

18

Def.’sPlaintiff appears to concede this point and in fact

See Opp’n at 14 n 4; Opp’n at 14 (arguing thatIn Sonner, the plaintiff brought suit under California’s

19

UCL and CLRA.

20

plaintiff amended her complaint to seek only restitution and21

equitable relief.

22“must establish that she lacks an adequate remedy at law before

23

securing equitable restitution for past harm under the UCL and24

CLRA.”

25

she lacked an adequate remedy at law, the Court found dismissal

26of the equitable restitution claims was warranted.

27
28

971 F.3d at 838.

Id. at 844.

Id.

Shortly before trial the

The Ninth Circuit held that a plaintiff

Because plaintiff had failed to establish

Id.

Here Plaintiff has not even attempted to explain why or how
the requested CLRA damages are an inadequate remedy justifying
12

1

restitution damages.

2

Accordingly, the Court GRANTS Defendant’s motion to dismiss

3

Plaintiff’s claims for equitable restitution under the UCL, FAL,

4

and CLRA.

500593-BRO (P JWx), 2017 WL 1531192 at *22 (C.D. Cal. Apr. 13,

62017) (“Failure to oppose and argument raised in a motion to7

dismiss constitutes waiver of that argument.”)

8

GRANTS Defendant’s motion to dismiss Plaintiff’s unjust

9enrichment claim.

10

See Opp’n at 14; see generally FAC.

See e.g. Resnick v. Hyundai Motor Am., Inc., CV 16-

The Court also

The Court however agrees with Plaintiff that Sonner does11

not warrant dismissal of his request for injunctive relief.

12

Money damages are an inadequate remedy for future harm, as they13

will not prevent Defendant from continuing the allegedly

14

deceptive practice.

1504056-WHO, 2021 WL 756109, at *21 (N.D. Cal. Feb. 26, 2021)

16(noting that even assuming Sonner applies to injunctive relief

17

the plaintiff had shown monetary damages were an inadequate

18

remedy because damages compensate for past purchases where an

19

injunction ensures that one can rely on a defendant’s

20

representations in the future); FAC ¶ 58 (“If the Court does not21

restrain Defendant from engaging in these practices in the

22

future, Plaintiff and the Class members will be harmed in that23

they will continue to believe they are purchasing Digital

24

Content for viewing and/or listening indefinitely, when in fact,

25

the Digital Content can be made unavailable at any time.”)

26
27
28

See Zeiger v. WETPET LLC, No. 3:17-CV-

III.

ORDER

For the reasons set forth above, the Court GRANTS in partand DENIES in part Defendant’s Motion to Dismiss.
13

Defendant’s1

Motion to Dismiss Plaintiff’s unjust enrichment claim is GRANTED

2

WITH PREJUDICE.

3

equitable claims for restitution under the UCL, FAL, and CLRA is

4

also GRANTED WITH PREJUDICE.

5

to Dismiss is DENIED. Defendant’s Answer to the FAC is due twenty

6(20) days from the date of this Order.

Defendant’s Motion to Dismiss Plaintiff’s

7

IT IS SO ORDERED.

8

Dated: April 19, 2021

The remainder of Defendant’s Motion

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14