Case 5:21-cv-08015-BLF Document 42 Filed 06/24/22 Page 1 of 13
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`RODNEY CARVALHO, et al.,
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`Plaintiffs,
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`v.
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`HP, INC.,
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`Case No. 21-cv-08015-BLF
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`ORDER GRANTING IN PART AND
`DENYING IN PART MOTION TO
`DISMISS
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`Defendant.
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`[Re: ECF No. 19]
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`In this case, Plaintiffs Rodney Carvalho and Mark Maher challenge the manner in which
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`Defendant HP Inc. advertises products on its website. Plaintiffs allege that HP displays false and
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`inflated reference or “strikethrough” prices for its products that it then offers to consumers at a
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`purported “discount price.” HP allegedly markets its products this way to create the impression
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`that consumers are saving money when in fact HP never sells its products at the higher
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`strikethrough prices. Plaintiffs seek to represent classes of individuals who purchased purportedly
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`discounted products on HP’s website in the last five years.
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`Now before the Court is HP’s motion to dismiss the First Amended Complaint under
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`Federal Rules of Civil Procedure 9(b) and 12(b)(6). See ECF No. 19 (“MTD”); see also ECF No.
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`29 (“Reply”). Plaintiffs oppose the motion. ECF No. 22 (“Opp.”). The Court held a hearing on
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`the motion on May 26, 2022. ECF No. 39. For the following reasons, HP’s motion to dismiss is
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`GRANTED IN PART AND DENIED IN PART.
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`I. BACKGROUND
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`As alleged in the First Amended Complaint and accepted as true for the purposes of this
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`motion, Defendant HP Inc. is a technology company that sells computers and related peripheral
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`parts, software, and services to consumers in the United States through its website HP.com. ECF
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`Case 5:21-cv-08015-BLF Document 42 Filed 06/24/22 Page 2 of 13
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`No. 18 (“FAC”) ¶¶ 1, 15, 20.
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`Plaintiffs allege that HP creates an illusion of savings on its website by advertising false
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`reference prices and discounts based on those prices. FAC ¶ 23. For any given product, HP’s
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`website displays a price in strikethrough typeface (i.e., $999.99) that Plaintiffs characterize as a
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`“reference price” but the Court will call a “strikethrough price” in this Order. Id. ¶ 24. At the
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`bottom of each page, HP includes a section entitled “Disclaimer +”). ECF No. 19-1, Ex. A (“HP
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`RJN”)1, ECF No. 22-1 (“Rozenblatt Decl.”) Ex. 2. Clicking on the “+” expands the Disclaimer
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`section. Rozenblatt Decl. Exs. 2–3. One of the disclaimers makes clear that the strikethrough
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`price is a Manufacturer’s Suggested Retail Price (“MSRP”). It states:
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`HP’s MSRP is subject to discount. HP’s MSRP price is shown as
`either a stand-alone price or as a strikethrough price with a discounted
`or promotional price also listed. Discounted or promotional pricing
`is indicated by the presence of an additional higher MSRP
`strikethrough price.
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`See HP RJN. No asterisk or other indication of a disclaimer appears next to the strikethrough
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`prices. Rozenblatt Decl. Ex. 1.
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` Near the strikethrough price and typically in a larger and bolder font, HP advertises a “sale
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`price,” the price at which the product is currently offered for sale. Id. ¶ 25. Throughout its
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`website, HP also advertises discounts of savings using words such as “Save,” “You’ll Save,” and
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`“You Saved.” Id. ¶ 26. As a customer goes through the purchasing process and after their order,
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`HP displays many of these same representations that the customer has saved money. Id. ¶¶ 28–31.
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`Plaintiffs allege that approximately 35% of the products HP sells on its website are sold in this
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`manner. Id. ¶ 32.
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`In general, however, the savings HP advertises on its website do not represent the actual
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`savings that customers receive because the strikethrough prices do not represent the actual prices
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`at which computers were sold or offered for sale for a reasonably substantial period of time. FAC
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`¶ 32. For example, on March 27, 2021, HP advertised its HP ENVY laptop for sale at $799.99
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`1 HP’s request for judicial notice is GRANTED because the exhibit—a screenshot of a product
`page on HP’s website—contains “information posted on certain . . . web pages that Plaintiffs
`referenced in the [First Amended Complaint].” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992,
`998 (9th Cir. 2010); see also FAC ¶¶ 3, 7, 8, 10, 52–60).
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`Case 5:21-cv-08015-BLF Document 42 Filed 06/24/22 Page 3 of 13
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`and represented to customers that they were saving $150 from the strikethrough price of $949.99.
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`Id. ¶ 34. But Plaintiffs allege that in the months that followed, HP rarely, if ever, sold the ENVY
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`laptop at a price of $949.99. Id. ¶ 35. HP engages in similar pricing practices for other products,
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`including products other than computers. Id. ¶¶ 36–37 (charts showing prices of other products
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`over multiple months). Plaintiffs allege that they have no way of determining if the prices HP
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`advertises as strikethrough prices are in fact prices at which HP ever sells its products. Id. ¶ 50.
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`Additionally, according to Plaintiffs, HP falsely advertises that the discounts are available
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`only for a limited time when in fact those discounts continue beyond their advertised expiration
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`date. FAC ¶ 38. For example, HP advertises “Weekly Deals,” but those deals in fact last longer
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`than one week and in some cases don’t end for months. Id. ¶¶ 40–42. HP also advertises similar
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`sales, such as a “Memorial Day Special” and “Flash Sales”. Id. ¶¶ 43–47. This practice induces
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`consumers to make purchases they otherwise may not have made due to a false sense of urgency
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`in obtaining a lower price. Id. ¶ 38.
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`On September 7, 2021, Plaintiff Rodney Carvalho purchased from HP’s website an HP
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`All-in-One 24-dp1056qe PC and HP X3000 G2 Wireless Mouse. FAC ¶ 52. The All-in-One PC
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`was advertised as being on sale for $899.99 from a strikethrough price of $999.99, which HP
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`represented was a savings of $100. Id. ¶ 53. HP also advertised an additional 5% savings with a
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`coupon code for a Labor Day sale. Id. Carvalho added the All-in-One PC to his cart and was then
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`told that he could purchase the G2 Mouse for $11.99, $5.00 off the strikethrough price of $16.99.
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`Id. ¶¶ 54–55. He added the G2 Mouse to his cart. Id. In his shopping cart, HP stated that “YOU
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`SAVED $105.00 ON YOUR ORDER.” Id. ¶ 57. Carvalho typed in the coupon code and received
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`an additional 5% for the Labor Day sale. Id. ¶ 58. Two further checkout pages, the order
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`confirmation page, and an order confirmation email told Carvalho that he saved $168.60 on his
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`order. Id. ¶¶ 59–62. Carvalho alleges that HP did not sell the All-in-One PC at $999.99 or the G2
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`Mouse at $16.99 for any reasonably substantial period of time in the three months prior to his
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`purchase or in the one month following his purchase. Id. ¶ 64.
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`On June 14, 2021, Plaintiff Mark Maher purchased from HP’s website an HP Laptop 17t-
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`by400. FAC ¶ 67. The 17t Laptop was advertised as being on sale for $599.99, $130 off the
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`Case 5:21-cv-08015-BLF Document 42 Filed 06/24/22 Page 4 of 13
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`strikethrough price of $729.99. Id. ¶ 68. Maher added the product to his cart and purchased an
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`additional Wi-Fi adapter to bring his total purchase to $699.99. Id. ¶ 70. In his shopping cart, HP
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`stated that “YOU SAVED $130.00 ON YOUR ORDER.” Id. ¶ 71. Two further checkout pages
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`and the order confirmation page indicated that Maher saved $130. Id. ¶¶ 72–73, 75. Maher
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`alleges that HP did not sell the 17t Laptop at $729.99 for any reasonably substantial period of
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`time. Id. ¶ 77.
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`Plaintiffs filed this lawsuit on October 13, 2021, see ECF No. 1, and by stipulation filed
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`the operative First Amended Complaint on December 30, 2021, see FAC. The First Amended
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`Complaint asserts nine causes of action: (1) breach of contract, FAC ¶¶ 87–96; (2) breach of
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`express warranty, id. ¶¶ 97–109; (3) negligent misrepresentation, id. ¶¶ 110–122; (4) intentional
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`misrepresentation, id. ¶¶ 123–136; (5) violation of California’s Consumer Legal Remedies Act
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`(“CLRA”), Cal. Civ. Code § 1750, FAC ¶¶ 137–144; (6) unjust enrichment, FAC ¶¶ 145–156; (7)
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`violation of California’s False Advertising Law (“FAL”), Cal. Bus. & Prof. Code § 17500, FAC
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`¶¶ 157–170; (8) violation of the FAL’s provision regarding former prices, Cal. Bus. & Prof. Code
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`§ 17501, FAC ¶¶ 171–184; and (9) violation of California’s Unfair Competition Law (“UCL”),
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`FAC ¶¶ 185–191. Plaintiffs seek to represent a class of all individuals and entities that, on or after
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`October 13, 2017, purchased one or more HP products on HP’s website that were advertised as
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`discounted from a strikethrough price. FAC ¶ 79. Plaintiffs also seek to represent one subclass of
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`class members who are “consumers” within the meaning of Cal. Civ. Code § 1761(d) and made
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`their purchases on or after October 13, 2018. Id.
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`II. LEGAL STANDARD
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`“A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a
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`claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” Conservation
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`Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d
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`729, 732 (9th Cir. 2001)). When determining whether a claim has been stated, the Court accepts
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`as true all well-pled factual allegations and construes them in the light most favorable to the
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`plaintiff. Reese v. BP Expl. (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). However, the Court
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`need not “accept as true allegations that contradict matters properly subject to judicial notice” or
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`“allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable
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`inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation
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`marks and citations omitted). While a complaint need not contain detailed factual allegations, it
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`“must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
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`on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
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`550 U.S. 544, 570 (2007)). A claim is facially plausible when it “allows the court to draw the
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`reasonable inference that the defendant is liable for the misconduct alleged.” Id. On a motion to
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`dismiss, the Court’s review is limited to the face of the complaint and matters judicially
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`noticeable. MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986); N. Star Int’l v.
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`Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983).
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`“In alleging fraud or mistake, a party must state with particularity the circumstances
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`constituting fraud or mistake.” Fed. R. Civ. P. 9(b). “Malice, intent, knowledge, and other
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`conditions of a person’s mind may be alleged generally.” Id. Rule 9(b) demands that the
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`circumstances constituting any alleged fraud be plead “specific[ally] enough to give defendants
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`notice of the particular misconduct . . . so that they can defend against the charge and not just deny
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`that they have done anything wrong.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir.
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`2009) (internal citation omitted). Claims of fraud must be accompanied by the “who, what, when,
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`where, and how” of the misconduct alleged. Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997),
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`superseded by statute on other grounds (internal citation omitted).
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`III. DISCUSSION
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`HP makes multiple arguments that, taken together, seek dismissal of Plaintiffs’ entire First
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`Amended Complaint. The Court evaluates each argument in turn and concludes that some but not
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`all claims will be dismissed.
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`A. Contract and Warranty Claims
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`As an initial matter, Plaintiffs do not oppose HP’s motion to dismiss their first and second
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`claims for breach of contract and breach of express warranty. See MTD at 14–17 (moving to
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`dismiss those claims); Opp. at 3 n.2 (conceding dismissal). Accordingly, HP’s motion to dismiss
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`the breach of contract and breach of express warranty claims is GRANTED WITHOUT LEAVE
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`Case 5:21-cv-08015-BLF Document 42 Filed 06/24/22 Page 6 of 13
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`TO AMEND.
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`B. FAL, UCL, and CLRA Claims
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`HP moves to dismiss the UCL, CLRA, and two FAL claims. HP says that these claims are
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`subject to Rule 9(b)’s heightened pleading standard, which in this price comparison case requires
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`Plaintiffs to plead that the strikethrough price is an inaccurate representation of the price at which
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`the good is sold in the marketplace (not just at the single retailer). See MTD at 10–13. Plaintiffs
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`do not dispute that their claims are subject to Rule 9(b), instead asserting that they need not plead
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`that other retailers do not sell the goods at the strikethrough price because a reasonable consumer
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`would interpret the strikethrough prices as “former prices,” which are subject to a specific
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`California regulatory scheme. See Opp. at 4–20.
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`California’s UCL prohibits any “unlawful, unfair or fraudulent business act or practice.”
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`Cal. Bus. & Prof. Code § 17200. “California’s FAL prohibits any unfair, deceptive, untrue or
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`misleading advertising.” Id. (internal quotation marks and citation omitted). A violation of the
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`FAL necessarily constitutes a violation of the UCL. See id. Finally, “California’s CLRA
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`prohibits ‘unfair methods of competition and unfair or deceptive acts or practices.’” Id. (quoting
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`Cal. Civ. Code § 1770).
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`“Whether a business practice is deceptive or misleading under these California statutes [is]
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`governed by the reasonable consumer test.” Mars Petcare US, Inc. v. Moore, 966 F.3d at 1017
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`(internal quotation marks and citations omitted). Under this standard, Plaintiffs “must show that
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`members of the public are likely to be deceived.” Williams v. Gerber Prod. Co., 552 F.3d 934,
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`938 (9th Cir. 2008) (internal quotation marks and citation omitted). The reasonable consumer test
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`may be satisfied by advertising that is false or, alternatively, advertising that is true but
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`nonetheless misleading. See id. However, “a plaintiff’s unreasonable assumptions about
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`[advertising] will not suffice.” Moore v. Trader Joe’s Co., 4 F.4th 874, 882 (9th Cir. 2021). Thus,
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`while application of the reasonable consumer test typically involves question of fact that may not
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`be resolved on a motion to dismiss, dismissal is appropriate where the court determines that the
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`plaintiff’s claims are not plausible. See id. at 886. (“In sum, the district court properly dismissed
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`this action under Federal Rule of Civil Procedure 12(b)(6) because Trader Joe’s representations on
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`the front label and the ingredients statement of its Manuka Honey product are not misleading to a
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`reasonable consumer as a matter of law.”); Becerra v. Dr Pepper/Seven Up, Inc., 945 F.3d 1225,
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`1231 (9th Cir. 2019) (“Becerra has not sufficiently alleged that Diet Dr Pepper’s labeling is false
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`or misleading and dismissal was therefore proper.”).
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`i. Exclusive vs. Non-Exclusive Products
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`Courts in this circuit have applied the reasonable consumer test to cases like this one
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`involving price comparisons. They have divided price comparison cases into two categories:
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`cases involving “exclusive products” and those involving “non-exclusive products.” See Sperling
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`v. Stein Mart, Inc., 291 F. Supp. 3d 1076, 1084 (C.D. Cal. 2018).2
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`“In exclusive product cases, a store, often an outlet store, sells a lower-price, different
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`version of a product sold in traditional retail stores. The outlet uses the price of the product made
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`for the retail store as a comparative reference price on price tags. However, the actual product
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`being sold in the outlet is made exclusively for the outlet and is never sold for the comparative
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`reference price at a traditional retail store.” Id. Courts allow those cases to proceed based on
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`allegations specific to that outlet or retail store exclusively selling the product. See, e.g.,
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`Rubenstein v. Neiman Marcus Grp. LLC, 687 F. App’x 564, 567 (9th Cir. 2017) (reversing grant
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`of motion to dismiss where plaintiff alleged that Neiman Marcus outlet used reference prices to
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`products sold at Neiman Marcus retail stores, but products were made exclusively for the outlet
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`store); Branca v. Nordstrom, Inc., 2015 WL 10436858, at *7 (N.D. Cal. Oct. 9, 2015) (same, as to
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`Nordstrom Rack and Nordstrom retail stores).
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`There is no dispute that this is a “non-exclusive products” case in which “more than one
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`retailer offers the product at issue for sale.” Stein Mart, 291 F. Supp. 3d at 1084. The computers
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`and related peripherals that HP sells are sold both through HP’s online website at HP.com and
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`through traditional big box retailers, such as Best Buy and Staples. “Because other retailers offer
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`the same product for sale, there are legitimate prices to which to compare the defendant’s
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`2 Although Stein Mart adjudicated a motion for class certification and motion for summary
`judgment, its discussion of the different standards for exclusive products and non-exclusive
`products cases remains instructive. Several of the decisions it cites (which are also cited in this
`Order) adjudicated motions to dismiss.
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`comparative reference price. In those cases, courts tend to reject claims unless the plaintiff
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`establishes that the comparative reference price is misleading.” Id.; see also Sperling v. DSW Inc.,
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`2015 WL 13309476, at *8–9 (C.D. Cal. Nov. 19, 2015) (granting motion to dismiss where
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`plaintiff did not provide allegations about market prices); Haley v. Macy’s, Inc., 263 F. Supp. 3d
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`819, 824 (N.D. Cal. 2017) (further explaining distinction between exclusive product cases and
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`non-exclusive product cases).
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`Here, Plaintiffs have not met their pleading burden. Plaintiffs’ complaint does not contain
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`any allegations that the strikethrough prices displayed on HP’s website are “inflated” or “why they
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`do not accurately reflect prevailing market prices.” See Stein Mart, 291 F. Supp. 3d at 1084
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`(citing Jacobo v. Ross Stores, Inc., 2017 WL 3382053, at *2, 6 (C.D. Cal. Aug. 2, 2017)). Instead,
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`Plaintiffs allege only that the strikethrough prices displayed on HP’s website did not reflect the
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`price at which the products were sold on HP’s website in the weeks and months prior to their
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`purchases. See FAC ¶¶ 4, 32, 33, 64, 65, 77, 78. While those allegations may suffice at the
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`motion to dismiss stage for an exclusive products case, they do not suffice for a non-exclusive
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`products case. Plaintiffs’ arguments regarding the thoroughness of their allegations of HP.com’s
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`pricing history for several products are thus unresponsive to this issue. Plaintiffs additionally
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`protest that the exclusive and non-exclusive products cases involved advertising that used
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`language such as “Compare at” and that these allegations are not required by the California
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`consumer protection statutes in general. The Court, however, sees this as a distinction without a
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`difference. The justification for requiring allegations of product pricing at other retailers extends
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`to any non-exclusive products, notwithstanding the label that a retailer uses on its site to advertise
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`the strikethrough or comparison price.
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`While these cases do require dismissal with leave to amend at this stage of the case, the
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`cases do not go as far as HP suggests. Much of HP’s motion to dismiss seeks dismissal of
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`Plaintiffs’ claims with prejudice based on its website disclosure that the strikethrough prices are
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`MSRPs, which are subject to specific rules promulgated by the Federal Trade Commission, and
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`not former prices, which are subject to specific California statutory rules that Plaintiffs rely upon.
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`See, e.g., MTD at 8–9 (citing 16 C.F.R. § 233.3). But this case is governed by the reasonable
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`consumer standard. Whether the price or the disclaimer is advertised in a way that is “likely to
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`deceive” a reasonable consumer in violation of the broad provisions of the FAL, UCL, and CLRA
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`is an issue the Court cannot resolve at this juncture. And the fact that a consumer could only learn
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`that the strikethrough price is a MSRP upon reading the fine print at the bottom of the webpage
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`and then clicking on the “+” suggests that a reasonable consumer could justifiably be unaware of
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`that disclaimer. All that the Court holds as to those claims is that Plaintiffs have not met their
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`pleading burden based on the current complaint.
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`Plaintiffs’ eighth claim under a specific provision of the FAL, however, is a different
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`matter. That claim alleges HP’s advertising of its strikethrough prices violates § 17501 of the
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`Business & Professions Code. While the more general provisions of the CLRA, UCL, and FAL
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`create liability for deceptive business practices in the eyes of a reasonable consumer, § 17501
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`governs a specific type of advertising conduct: former prices. Section 17501 states that “[n]o
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`price shall be advertised as a former price of any advertised thing, unless the alleged former price
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`was the prevailing market price” within certain periods of time. But the disclaimer at the bottom
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`of HP’s website—which the Court has already found is subject to judicial notice—establishes that
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`these prices are not in fact former prices, but instead MSRPs. Because the prices are in fact
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`MSRPs and not “former price[s],” HP could never be liable under § 17501, which applies only to
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`a “former price[s],” regardless of how a reasonable consumer interpreted the advertisements.
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`None of Plaintiffs’ cited cases involved a disclaimer on the same page as the product purchase
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`page indicating that the price is an MSRP price. See, e.g., Morrow v. Carter’s, Inc., 2017 WL
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`9882667, at *6 (N.D. Ga. Mar. 6, 2017) (price tag did not include disclaimer, but website did);
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`Knapp v. Art.com, Inc., 2016 WL 3268995, at *4 (N.D. Cal. Jun. 15, 2016) (no disclaimer);
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`Hansen v. Newegg.com Am., Inc., 25 Cal. App. 5th 714, 720, 730–31 (2018) (same). The eighth
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`claim for violation of § 17501 will thus be subject to dismissal without leave to amend.
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`ii. Limited-Time Offer Claims
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`HP also argues that Plaintiff’s UCL, FAL, and CLRA claims are subject to dismissal to the
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`extent that they challenge HP’s advertising of limited-time offers. MTD at 9–10. HP argues that
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`Plaintiffs have provided insufficient allegations that they relied on limited-time offers and that
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`Case 5:21-cv-08015-BLF Document 42 Filed 06/24/22 Page 10 of 13
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`Plaintiffs lack standing to assert claims for limited-time offers. Id. Although not expressly
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`addressed in their opposition brief, at the hearing Plaintiffs pointed to limited-time-offer
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`allegations in their complaint regarding the Labor Day sale code that Carvalho used in his
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`purchase.
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`The Court finds that Plaintiff Carvalho provided sufficient allegations regarding limited-
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`time offers. Contrary to HP’s argument otherwise, the First Amended Complaint alleges that
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`Carvalho additionally used a Labor Day coupon code to obtain an additional 5% off his purchase.
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`See FAC ¶ 58. The FAC also alleges that Carvalho relied on HP’s representations and omissions
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`about “the limited-time nature of the advertised discounts.” Id. ¶ 61; see also id. ¶ 63 (Carvalho
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`believed that the strikethrough prices would resume “at the end of the Labor Day sale”). These
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`allegations are sufficient to allow the limited-time offer claims to proceed because Carvalho has
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`standing for those claims. See Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1105 (9th Cir. 2013)
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`(standing for California consumer protection claims where plaintiff alleged that advertised
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`discounts conveyed false information about the goods he purchased). HP’s motion to dismiss the
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`UCL, FAL, and CLRA claims to the extent they are based on limited-time offer allegations is
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`DENIED.
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`*
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`*
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`*
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`HP’s remaining claim-specific arguments for dismissing the UCL and § 17500 claim relate
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`to Plaintiffs’ insufficient pricing allegations or HP’s knowledge of the misleading nature of its
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`pricing practices. See MTD at 17–19. Without adequate allegations of pricing at other retailers
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`for HP’s non-exclusive products, the Court cannot evaluate those claim-specific arguments. HP
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`may raise those arguments again in any subsequent motion to dismiss.
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`HP’s motion to dismiss Plaintiffs’ fifth, seventh, and ninth claims for violation of the
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`CLRA, FAL, and UCL is thus GRANTED WITH LEAVE TO AMEND for failure to provide
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`allegations regarding the pricing of the non-exclusive products at other retailers. HP’s motion to
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`dismiss Plaintiffs’ eighth claim for violation of the FAL’s provision regarding former prices is
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`GRANTED WITHOUT LEAVE TO AMEND.
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`C. Negligent and Intentional Misrepresentation Claims
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`HP moves to dismiss the negligent and intentional misrepresentation claims on two
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`grounds: (1) failure to meet Rule 9(b)’s heightened pleading burden, see MTD at 7–10; and (2)
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`the economic loss doctrine, see id. at 14. Plaintiffs oppose both grounds for dismissal. See Opp.
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`at 21–22. The Court’s conclusions above regarding the UCL, FAL, and CLRA claims apply
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`equally to the negligent and intentional misrepresentation claims. Because HP’s website sells
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`non-exclusive products, Plaintiffs must provide allegations that that the strikethrough prices
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`displayed on HP’s website are “inflated” or “why they do not accurately reflect prevailing market
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`prices.” Stein Mart, 291 F. Supp. 3d at 1084. Without such allegations, they have not alleged
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`actional misrepresentations of fact that would be necessary to sustain any claim for negligent or
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`intentional misrepresentation. See Mahfood v. QVC, Inc., 2007 WL 9363986, at *4 (C.D. Cal.
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`Feb. 7, 2007) (Rule 9(b) heightened pleading standard not met where plaintiff failed to allege facts
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`leading to inference that comparative prices were false or misleading).
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`Plaintiffs’ claims for negligent and intentional misrepresentation are thus DISMISSED
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`WITH LEAVE TO AMEND. Although the Court does not reach the issue given its Rule 9(b)
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`analysis, Plaintiffs should carefully consider whether the economic loss doctrine bars these claims.
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`D. Unjust Enrichment Claim
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`HP next moves to dismiss Plaintiffs’ unjust enrichment claim. See MTD at 19–20. HP
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`first argues that there is no independent claim for unjust enrichment under California law. See
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`id.at 19. But the Ninth Circuit has recognized that California law does indeed permit an
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`independent claim for unjust enrichment. See Wallace v. SharkNinja Operating, LLC, 2020 WL
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`1139649, at *13 (N.D. Cal. Mar. 9, 2020) (citing Bruton v. Gerber Prod. Co., 703 F. App’x 468,
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`470 (9th Cir. 2017); Hartford Cas. Ins. Co. v. J.R. Mktg., LLC, 61 Cal. 4th 988, 1000 (2015)). HP
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`also argues that Plaintiffs seek relief on a breach of contract claim and cannot simultaneously
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`bring an unjust enrichment claim, see MTD at 19, but the breach of contract claim is being
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`dismissed. Finally, HP argues that the unjust enrichment claim is duplicative of their statutory or
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`tort claims, see id. at 19–20, but the Court declines to dismiss on this basis at this stage of the case.
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`HP’s motion to dismiss the unjust enrichment claim on these bases is thus DENIED.
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`Case 5:21-cv-08015-BLF Document 42 Filed 06/24/22 Page 12 of 13
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`E.
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`Sonner: Inadequate Remedy at Law
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`Finally, HP argues that Plaintiffs’ claims for equitable monetary relief under the UCL,
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`FAL, and unjust enrichment must be dismissed because Plaintiffs have failed to allege inadequate
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`remedies at law under Sonner v. Premier Nutrition Corp., 971 F.3d 834 (9th Cir. 2020). MTD at
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`20–21. Plaintiffs argue that they are entitled to plead remedies in the alternative and that, in any
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`case, they have sufficiently alleged that they lack adequate remedies at law. See Opp. at 23–25.
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`In a separate case raising this issue, the Court recently concluded that Sonner does not
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`“impose strict requirements at the pleading stage” because it “pertained to circumstances in which
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`a plaintiff dropped all damages claims on the eve of trial.” See Jeong v. Nexo Fin., LLC, 2022 WL
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`174236, at *27 (N.D. Cal. Jan. 19, 2022). In fact, “there is no binding precent that holds that
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`pleading equitable restitution in the alternative is improper.” Id. (citing cases). The cases HP cites
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`reflect the other side of the “intra-circuit split” on whether claims for equitable monetary relief can
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`proceed past the pleading stage where legal remedies are also sought. See Byton N. Am. Co. v.
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`Breitfeld, 2020 WL 3802700, at *9 (C.D. Cal. Apr. 28, 2020). The Court finds that Plaintiffs may
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`proceed with their equitable restitution claims at this stage, especially given that they have now
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`dismissed their breach of contract claim. The Court may reconsider this issue at a later stage of
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`the case.
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`HP’s motion to dismiss the claims for equitable monetary relief due to Sonner are thus
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`DENIED.
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`IV. ORDER
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`For the foregoing reasons, IT IS HEREBY ORDERED that:
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`• HP’s motion to dismiss the first and second claims for breach of contract and
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`breach of express warranty is GRANTED WITHOUT LEAVE TO AMEND;
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`• HP’s motion to dismiss the third and fourth claims for negligent and intentional
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`misrepresentation is GRANTED WITH LEAVE TO AMEND;
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`• HP’s motion to dismiss the fifth, seventh, and ninth claims for violation of the
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`CLRA, FAL, and UCL is GRANTED WITH LEAVE TO AMEND as to the
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`strikethrough prices allegations and DENIED as to the limited time offer
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`Case 5:21-cv-08015-BLF Document 42 Filed 06/24/22 Page 13 of 13
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`allegations;
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`• HP’s motion to dismiss the sixth claim for unjust enrichment is DENIED; and
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`• HP’s motion to dismiss the eighth claim for violation of the FAL’s provision
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`regarding former prices is GRA