Case 5:22-cv-02327-BLF Document 29 Filed 11/14/22 Page 1 of 16
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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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`HENRY SO,
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`Plaintiff,
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`v.
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`HP, INC.,
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`Defendant.
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`Case No. 22-cv-02327-BLF
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`ORDER DENYING IN PART AND
`GRANTING IN PART MOTION TO
`DISMISS WITH LEAVE TO AMEND
`IN PART AND WITHOUT LEAVE TO
`AMEND IN PART
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`In this case, Plaintiff Henry So alleges that Defendant HP, Inc. (“HP”) remotely transmits
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`firmware updates to HP printers that make third-party ink and toner supply cartridges
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`incompatible with those HP printers. He brings common law and state and federal statutory
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`claims, and he seeks to represent both a California and a nationwide class of consumers who
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`purchased the identified HP printers.
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`Now before the Court is HP’s motion to dismiss under Rules 12(b)(1) and 12(b)(6). ECF
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`No. 14 (“MTD”); see also ECF No. 19 (“Reply”). So opposes the motion. ECF No. 17 (“Opp.”).
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`The Court held a hearing on the motion on October 27, 2022. See ECF No. 28. For the reasons
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`discussed on the record and explained below, the Court DENIES IN PART the motion to dismiss
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`and GRANTS IN PART the motion to dismiss WITH LEAVE TO AMEND in part and
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`WITHOUT LEAVE TO AMEND in part.
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`I. BACKGROUND
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`As alleged in the Complaint, Defendant HP sells both printers and associated HP-branded
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`ink and toner cartridges for use in its printers. ECF No. 1 (“Compl.”) ¶¶ 20-21. For a cartridge to
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`be compatible with a printer, both the hardware and the software must align. Id. ¶ 25. Each model
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`of HP printer is compatible only with the associated cartridge model. Id. ¶ 24. HP has
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`competitors in the market for cartridges, as consumers can choose to buy cartridges from HP (“HP
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`cartridges”) or a different company (“third-party cartridges”). Id. ¶ 35. Third-party cartridges can
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`be 25%-75% less expensive than HP cartridges. Id. ¶ 34.
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`So alleges that HP periodically pushes out firmware updates to its printers that prevent
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`consumers from using third-party cartridges. Compl. ¶¶ 65-70. He claims that the firmware also
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`causes the printer to “display a (false) error message” stating there is a “supply problem, cartridge
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`communication error, or cartridge problem.” Id. ¶ 68. Further, So alleges that HP installs
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`technology in its printers that records data about the consumer’s printing habits and transmits it
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`back to HP without the consumer’s knowledge or consent. Id. ¶¶ 51, 54-57. He asserts that this
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`happens with “all models of HP printers that use ink supply cartridges,” and he provides a “non-
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`exhaustive list” of models that he alleges were affected (“Class Printers”). Id. ¶ 90.
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`So purchased a new HP OfficeJet Pro 6978 All-in-One Printer on November 22, 2018, and
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`he purchased a new HP ENVY 7885 All-in-One Printer on April 10, 2021, both in California.
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`Compl. ¶¶ 93-94. He had previously owned an HP OfficeJet 6962 All-in-One Printer, with which
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`he used both HP cartridges and third-party cartridges. Id. ¶ 95. So alleges that HP sent out a
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`firmware update in December 2020, and on or around December 16, 2021, his OfficeJet Pro 6978
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`stopped working with third-party cartridges, so he had to purchase an HP cartridge for the printer
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`to function. Id. ¶¶ 98-99.
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`This lawsuit was filed on April 14, 2022. See Compl. The Complaint asserts claims for
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`violation of the federal Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. §§ 1030(a)(5)(A),
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`1030(a)(2)(C), and 1030(a)(4), Compl. ¶¶ 118-143 (Count 1); violation of the California
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`Comprehensive Computer Data Access and Fraud Act (“CCDAFA”), Cal. Penal Code § 502 et
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`seq., Compl. ¶¶ 144-159 (Count 2); violation of all three prongs of the California Unfair
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`Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq., Compl. ¶¶ 160-190 (Counts
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`3-5); violation of the California False Advertising Law (“FAL”), Cal. Bus. & Prof. Code § 17500
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`et seq., Compl. ¶¶ 191-205 (Count 6); fraud by omission, Compl. ¶¶ 206-221 (Count 7); and
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`violation of the Consumer Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1750 et seq., Compl.
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`¶¶ 222-236 (Count 8). So seeks to represent three classes: (1) a nationwide class of all persons
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`Case 5:22-cv-02327-BLF Document 29 Filed 11/14/22 Page 3 of 16
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`and entities who own a Class Printer or similar HP InkJet Printer (the “device owner class”); (2) a
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`nationwide class of all persons and entities who own a Class Printer that displayed a diagnostic
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`error due to HP’s transmission of a firmware update (the “damages subclass”); and (3) a class of
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`all persons and entities residing in California and states with similar consumer protection statutes
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`who own a Class Printer that displayed a diagnostic error due to HP’s transmission of a firmware
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`update (the “state consumer subclass”). Id. ¶¶ 105-117.
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`II.
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`FAILURE TO STATE A CLAIM – RULE 12(B)(6)
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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). But the Court need
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`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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`A. Fraud
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`1. Rule 9(b)
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`When a party pleads a cause of action for fraud or mistake, it is subject to the heightened
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`pleading requirements of Rule 9(b). “In alleging fraud or mistake, a party must state with
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`particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b) (emphasis
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`added). “Malice, intent, knowledge, and other conditions of a person’s mind may be alleged
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`generally.” Id. Rule 9(b) requires that the circumstances constituting any alleged fraud be pled
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`“specific[ally] enough to give defendants notice of the particular misconduct . . . so that they can
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`defend against the charge and not just deny that they have done anything wrong.” Kearns v. Ford
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`Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (quoting Bly-Magree v. California, 236 F.3d
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`1014, 1019 (9th Cir. 2001)). Claims of fraud must be accompanied by the “who, what, when,
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`where, and how” of the misconduct alleged. Id. If a “claim is said to be ‘grounded in fraud’ or to
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`‘sound to fraud,’ [then] the pleading of that claim as a whole must satisfy that particularity
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`requirement of Rule 9(b).” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103-04 (9th Cir.
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`2003).
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`The applicability of Rule 9(b) hinges not on the elements of the claim but rather on the
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`nature of the allegations themselves: “Rule 9(b) applies to ‘averments of fraud’ in all civil cases in
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`federal district court,” including “particular averments of fraud” even when fraud is not an
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`essential element of the claim. Vess, 317 F.3d at 1103; see also Kearns, 567 F.3d at 1124 (“Where
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`fraud is not an essential element of a claim, only those allegations of a complaint which aver fraud
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`are subject to Rule 9(b)'s heightened pleading standard.”). Fraud can thus be averred “by
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`specifically alleging fraud, or by alleging facts that necessarily constitute fraud (even if the word
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`‘fraud’ is not used).” Vess, 317 F.3d at 1105 (citations omitted).
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`2. UCL fraud prong, CLRA, FAL, and common law fraud by omission
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`Plaintiff brings four fraud-based claims: (1) violation of the fraud prong of the UCL,
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`Compl. ¶¶ 180-190 (Count 5); (2) violation of the FAL, id. ¶¶ 191-205 (Count 6); (3) violation of
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`the CLRA, id. ¶¶ 222-236 (Count 8); and (4) common law fraud by omission, id. ¶¶ 206-221
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`(Count 7).
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`“Broadly stated: The UCL prohibits ‘any unlawful, unfair or fraudulent business act or
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`practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by the
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`FAL’ ([Cal. Bus. & Prof. Code] § 17200); the FAL prohibits advertising ‘which is untrue or
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`misleading, and which is known, or which by the exercise of reasonable care should be known, to
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`Case 5:22-cv-02327-BLF Document 29 Filed 11/14/22 Page 5 of 16
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`be untrue or misleading’ ([id. at] § 17500); and the CLRA prohibits specified ‘unfair methods of
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`competition and unfair or deceptive acts or practices’ ([Cal.] Civ. Code § 1770, subd. (a)).” Hill v.
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`Roll Int’l Corp., 195 Cal. App. 4th 1295, 1301 (2011) (alterations omitted). All three statutes
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`prohibit fraudulent misrepresentations and omissions. See In re Seagate Tech. LLC Litig., 233 F.
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`Supp. 3d 776, 788 (N.D. Cal. 2017). Further, courts in this district have consistently held that
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`“plaintiffs in misrepresentation cases must allege that they actually read the challenged
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`representations” to state a claim. In re Yahoo! Inc. Customer Data Sec. Breach Litig., No. 16-
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`MD-02752-LHK, 2017 WL 3727318, at *27-28 (N.D. Cal. Aug. 30, 2017) (citation omitted)
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`(dismissing UCL fraud claim for failure to plead actual reliance); see also Bruton v. Gerber Prods.
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`Co., No. 12-CV-02412-LHK, 2014 WL 172111, at *6, *9 (N.D. Cal. Jan. 15, 2014) (citing In re
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`Tobacco II Cases, 46 Cal. 4th 298 (2009)) (dismissing UCL, FAL, and CLRA claims for lack of
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`statutory standing based on plaintiff’s failure to allege he viewed alleged misrepresentations).
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`“Under California law, a claim of fraud by omission requires a showing of (1) the
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`concealment or suppression of material fact, (2) a duty to disclose the fact to the plaintiff, (3)
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`intentional concealment with intent to defraud, (4) justifiable reliance, and (5) resulting damages.”
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`Edwards v. FCA US LLC, No. 22-cv-01871-WHO, 2022 WL 1814144, at *3 (N.D. Cal. June 2,
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`2022) (quoting Lewis v. Google LLC, 851 F. App’x 723, 725 (9th Cir. 2021)).
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`a. Misrepresentation
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`HP argues that the fraud-based claims should be dismissed because So does not plead an
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`affirmative consumer-facing misrepresentation with particularity as required by Rule 9(b), and he
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`does not plead reliance on any alleged misrepresentations. MTD at 4-7. The Court agrees. As
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`discussed at the hearing, So does not allege an affirmative misrepresentation made to consumers.
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`The alleged misrepresentations identified in the Complaint, in which HP indicated printer owners
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`could use HP cartridges or third-party cartridges, were in investor materials and a strategic plan.
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`See Compl. ¶¶ 44, 46. And So does not plead reliance on an affirmative misrepresentation, as he
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`does not allege that he saw any of the alleged misrepresentations. See id. He alleges that he
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`“rightfully believed” he could use a third-party cartridge based on his experience with another HP
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`printer, see id. ¶ 95, but this does not constitute a misrepresentation by HP. Further, the parties
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`agree that So cannot allege reliance on the printer error messages, see Compl. ¶¶ 68, 72, as they
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`did not appear until after purchase. MTD at 10-11; Opp. at 12-13. The Court agrees that because
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`the error messages appeared after So purchased the printer, there is no reliance.
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`Therefore, the motion to dismiss any fraud-based claims based on an affirmative
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`misrepresentation is GRANTED WITH LEAVE TO AMEND.
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`b. Omission
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`HP further argues that any fraud claims based on omission also fail because So does not
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`allege HP concealed a defect central to the printers’ function. MTD at 8-10. To allege fraud by
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`omission, the omission must either (1) “be contrary to a representation actually made by the
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`defendant,” or (2) “an omission of a fact the defendant was obliged to disclose.” Anderson v.
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`Apple Inc., 500 F. Supp. 3d 993, 1012 (N.D. Cal. 2020) (quoting Hodsdon v. Mars, Inc., 891 F.3d
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`857, 861 (9th Cir. 2018)). Here, the first prong is not alleged, so Plaintiff needs to show that HP
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`had a duty to disclose prior to sale that it would send out firmware that would make its printers
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`incompatible with third-party cartridges. The law about a defendant’s duty to disclose in
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`fraudulent omission cases is “marked by general disarray,” largely because there are at least two
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`tests to determine whether a defendant has a duty to disclose. Hammerling v. Google LLC, No.
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`21-cv-09004-CRB, 2022 WL 2812188, at *8 (N.D. Cal. July 18, 2022) (quoting In re Toyota
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`RAV4 Hybrid Fuel Tank Litig., 534 F. Supp. 3d 1067, 1101-02 (N.D. Cal. 2021)). The Court
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`agrees with the recent Hammerling decision as to the appropriate test. See 2022 WL 2812188, at
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`*8 (collecting Ninth Circuit and Northern District of California cases adopting this test). So must
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`allege that HP’s omission “either (1) relates to an unreasonable safety hazard or (2) is material,
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`‘central to the product’s function,’ and meets one of the four LiMandri factors.” Id. (quoting
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`Hodson, 891 F.3d at 863). “The LiMandri factors are (1) the defendant is in a fiduciary
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`relationship with the plaintiff; (2) the defendant had exclusive knowledge of material facts not
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`known to the plaintiff; (3) the defendant actively conceals a material fact from the plaintiff; or (4)
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`the defendant makes partial representations but also suppresses some material facts.” Id. at *7
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`(citing LiMandri v. Judkins, 52 Cal. App. 4th 326, 336 (1997)).
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`There are no allegations about a safety hazard here, so Plaintiff must allege that the
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`inability to use a third-party cartridge is “material, central to the product’s function, and meets one
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`of the four LiMandri factors.” Plaintiff must also allege facts showing that HP intended to send
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`the firmware updates at the time of purchase. Plaintiff has not done so. See Compl. Therefore,
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`the motion to dismiss any fraud-based claims based on omission is GRANTED WITH LEAVE
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`TO AMEND.
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`c. Conclusion
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`HP’s motion to dismiss the fraud-based claims brought under the fraud prong of the UCL,
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`FAL, and CLRA, as well as the common law, is thus GRANTED WITH LEAVE TO AMEND.
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`3. California CCDAFA Fraud Claim
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`So brings a claim under the California Comprehensive Computer Data Access and Fraud
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`Act. Compl. ¶¶ 144-159; see Cal. Penal Code § 502. He asserts claims under subsections (1)-(5)
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`of Cal. Penal Code § 502(c). See id. ¶ 152. HP argues that So’s claim under subsection (c)(1)
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`should be dismissed to the extent it is based on fraud. MTD at 14-15. Subsection (c)(1) imposes
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`liability on any person who “[k]nowingly accesses and without permission alters, damages,
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`deletes, destroys, or otherwise uses any data, computer, computer system, or computer network in
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`order to either (A) devise or execute any scheme or artifice to defraud, deceive, or extort, or (B)
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`wrongfully control or obtain money, property, or data.” Cal. Penal Code § 502(c)(1). So argues
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`that HP violated subsection (c)(1) by causing the Class Printers to display the false error messages,
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`as these constituted “a scheme to defraud, deceive, and extort Plaintiff and Class Members to
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`purchase new HP Original cartridges from HP.” Compl. ¶ 152(a).
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`HP argues that the claim should fail because So “fails to plead the underlying fraudulent
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`conduct with requisite particularity” required by Rule 9(b). MTD at 14-15. Because the claim
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`sounds in fraud, Rule 9(b) applies. And the Court agrees that, for the reasons discussed above,
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`Plaintiff has not pled fraud with particularity.
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`The motion to dismiss Plaintiff’s claims under Cal. Penal Code § (c)(1 is GRANTED
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`WITH LEAVE TO AMEND.
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`4. Other UCL Claims
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`The UCL prohibits any “unlawful, unfair or fraudulent business practice and unfair,
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`deceptive, untrue or misleading advertising.” Cal. Bus. & Prof. Code § 17200. The California
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`Supreme Court has clarified that the UCL, because it is “written in the disjunctive,” prohibits three
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`separate types of unfair competition: (1) unlawful acts or practices, (2) unfair acts of practices, and
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`(3) fraudulent acts or practices. Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular Tel. Co., 20
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`Cal. 4th 163, 180 (1999); accord Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1168 (9th
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`Cir. 2012). To plead a UCL claim, a plaintiff’s allegations must show that a defendant’s conduct
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`violates one of these three “prongs.” Id. The Court already addressed So’s claim under the
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`fraudulent prong of the UCL. See surpa Section II.B.2; see also Compl. ¶¶ 180-190 (Count 5). So
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`also brings claims under the unfair and unlawful prongs of the UCL. See Compl. ¶¶ 169-179
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`(Count 4) (unfair), ¶¶ 160-168 (Count 3) (unlawful).
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`a. UCL unfair claim
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`So brings a claim under the unfair prong of the UCL. Compl. ¶¶ 169-179 (Count 4). HP
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`asserts that the unfair claim is based on the same “unified course of fraudulent conduct”
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`underlying the other fraud claims, and it should therefore be dismissed on the same basis as those
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`claims. MTD at 11. HP further argues that if So’s unfair claim is grounded on anything other
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`than fraud, namely on the basis that HP requires its printers to be used with compatible cartridges,
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`it must be dismissed because other technology companies sell products that are only compatible
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`with certain other of their products. Id. at 11-12. Plaintiff counters that he has sufficiently
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`pleaded a unified course of fraudulent conduct. Opp. at 13-14. He identifies several “unfair
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`business practices and acts” that he alleged in the Complaint, including, among others, HP’s sale
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`and promotion of the Class Printers with the knowledge that they could lose functionality; false
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`advertising; firmware update and resulting loss in functionality; and collection of usage data and
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`customer information. Id. at 14 (citing Compl. ¶ 173). Finally, Plaintiff tries to distinguish the
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`practices of other technology companies on the basis that those companies make clear to
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`consumers at the time of purchase that their products are only compatible with certain other of
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`their products. Id.
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`To the extent So’s allegations and arguments rely on a “unified course of fraudulent
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`conduct” as the basis of the unfair UCL claim, the pleading must meet the heightened standard of
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`Rule 9(b). See Vess, 317 F.3d at 1103 (stating claim may be “grounded in fraud” if “plaintiff []
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`allege[s] a unified course of fraudulent conduct and rel[ies] entirely on that course of conduct as
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`the basis of a claim”); see also Backhaut v. Apple, Inc., 74 F. Supp. 3d 1033, 1051 (N.D. Cal.
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`2014) (applying Rule 9(b) to unfair UCL claim based on “unified course of fraudulent conduct”).
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`As discussed above, the Court finds Plaintiff has not met this standard. Cf. Eidmann v. Walgreen
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`Co., 522 F. Supp. 3d 634, 647 (N.D. Cal. 2021) (“In this District, when plaintiff’s claim under the
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`unfair prong overlaps entirely with the conduct alleged in the fraudulent and unlawful prongs of
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`the UCL, ‘the unfair prong of the UCL cannot survive if the claims under the other two prongs . . .
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`do not survive.’” (quoting Hadley v. Kellogg Sales Co., 243 F. Supp. 3d 1074, 1105 (N.D. Cal.
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`2017))). The Court therefore dismisses any allegations under the unfair prong that stem from “a
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`unified course of fraudulent conduct” by HP.
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`The motion to dismiss the unfair claim under the UCL as to allegations that sound in fraud
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`is GRANTED WITH LEAVE TO AMEND.
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`b. UCL unlawful claim
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`Plaintiff also brings a claim under the unlawful prong of the UCL. Compl. ¶¶ 160-168
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`(Count 3). HP does not seek to dismiss this claim. See MTD.
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`B. CLRA notice requirement
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`HP also seeks to dismiss the CLRA claim for lack of notice. MTD at 12. The CLRA
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`requires a plaintiff to provide notice to a defendant 30 days or more prior to the commencement of
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`an action for damages. Cal. Civ. Code § 1782(a). There is no such notice requirement for
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`injunctive relief claims under the CLRA. Id. § 1782(d). Further, the CLRA provides that not less
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`than 30 days after commencing an action for injunctive relief and providing notice, a consumer
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`may amend their complaint to include a request for damages. Id. Here, Plaintiff provided notice
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`to HP on March 28, 2022, and he filed his Complaint just 17 days later, seeking both injunctive
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`relief and damages under the CLRA. See Compl. ¶¶ 234, 236, Ex. B.
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`HP argues that the Court should dismiss the CLRA claims for damages on this basis
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`without leave to amend. MTD at 12. Plaintiff admits that the original request for damages under
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`the CLRA did not comply with the notice provisions, but because over 30 days have passed since
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`Northern District of California
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`United States District Court
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`

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`Case 5:22-cv-02327-BLF Document 29 Filed 11/14/22 Page 10 of 16
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`he provided notice, he asks for leave to amend his CLRA claim to seek damages. Opp. at 15. The
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`Court agrees that the original claim for damages under the CLRA did not comply with notice
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`requirements, and therefore it should be dismissed. See Cal. Civ. Code § 1782(a). But because
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`the statute specifically allows for amendment, the Court will grant leave to amend. See id. §
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`1782(d); see also, e.g., Deitz v. Comcast Corp., No. C 06-06352 WHA, 2006 WL 3782902, at *5-
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`6 (N.D. Cal. Dec. 21, 2006).
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`The motion to dismiss the CLRA for lack of notice is GRANTED WTH LEAVE TO
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`AMEND.
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`C. CFAA
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`So brings a claim under the CFAA, citing three subsections: 18 U.S.C. §§ 1030(a)(5)(A),
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`1030(a)(2)(C), and 1030(a)(4). Compl. ¶¶ 118-143. HP argues that the CFAA claims should be
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`dismissed because So does not allege the required statutory damages of $5,000. MTD at 13. The
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`CFAA requires So to allege $5,000 in damages. See 18 U.S.C. § 1030(g). He did not do so. See
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`Compl. Under the CFAA, a class of plaintiffs may aggregate damages “so long as those damages
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`arose from the same act by a defendant.” In re Apple & AT & TM Antitrust Litig., 596 F. Supp. 2d
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`1288, 1308 (N.D. Cal. 2008); see also In re Toys R Us, Inc. Privacy Litig., No. 00-CV-2746, 2001
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`WL 34517252, at *11 (N.D. Cal. Oct. 9, 2001). So may plead aggregated damages as long as they
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`stem from a single act by HP. The motion to dismiss the CFAA claim for failure to plead
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`statutory damages is GRANTED WITH LEAVE TO AMEND.
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`HP further argues that the claim under subsection (a)(4) should be dismissed because it
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`sounds in fraud, and the fraud is inadequately pled under Rule 9(b). MTD at 14. The statue
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`forbids “knowingly and with intent to defraud, access[ing] a protected computer without
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`authorization, or exceed[ing] authorized access, and by means of such conduct further[ing] the
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`intended fraud and obtain[ing] anything of value . . . .” 18 U.S.C. § 1030(a)(4). Because the
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`claim sounds in fraud, Rule 9(b) applies. And the Court agrees that Plaintiff has not pled fraud
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`with particularity. The motion to dismiss Plaintiff’s claim under § 1030(a)(4) is GRANTED
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`WITH LEAVE TO AMEND.
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`Northern District of California
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`United States District Court
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`

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`Case 5:22-cv-02327-BLF Document 29 Filed 11/14/22 Page 11 of 16
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`III. ARTICLE III STANDING – RULE 12(B)(1)
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`“[T]he ‘irreducible constitutional minimum’ of standing consists of three elements.”
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`Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555,
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`560 (1992)). “The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to
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`the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable
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`judicial decision.” Id. (citing Lujan, 504 U.S. at 560-61). “The plaintiff, as the party invoking
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`federal jurisdiction, bears the burden of establishing these elements.” Id. (citing FW/PBS, Inc. v.
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`Dallas, 493 U.S. 215, 231 (1990)). HP makes three arguments as to standing.
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`A.
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`Standing for Out-of-State Class Members
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`HP argues that So does not have standing to assert consumer protection and fraud claims
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`on behalf of out of state class members. MTD at 15-22. Plaintiff asserts his UCL and FAL claims
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`on behalf of the “device owner class,” Compl. ¶¶ 160-205, which is a nationwide class, id. ¶ 106.
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`He asserts his CLRA claim on behalf of the “state consumer subclass,” id. ¶¶ 222-236, which
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`includes “[a]ll persons and entities residing in California and States with a similar consumer
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`protection statute to [the CLRA],” id. ¶ 106. Finally, Plaintiff brings his fraud by omission claim
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`“on behalf of the Device Owner Class under California law or, alternatively, the State Consumer
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`Subclass(es) under the law of the state in which each respective Plaintiff purchased a Class
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`Printer.” Id. ¶ 207.
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`HP first asserts that So does not have standing to assert any consumer protection or fraud
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`claims under the laws of any state other than California. MTD at 16. HP also argues that
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`California law cannot be applied to out-of-state class members. MTD at 17-22. So argues that he
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`has standing and that California law can be applied to out-of-state class members. Opp. at 17-20.
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`HP’s first argument, that So does not have standing to assert consumer protection or fraud
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`claims under the laws of any state other than California, applies only to So’s fraud by omission
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`claim, as that is the only claim in which So seeks to apply non-California law. See Compl. ¶ 207
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`(seeking to bring claim “on behalf of the Device Owner Class under California law or,
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`alternatively, the State Consumer Subclass(es) under the law of the state in which each respective
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`Plaintiff purchased a Class Printer”). “Courts in the Ninth Circuit have consistently held that a
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`Northern District of California
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`United States District Court
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`

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`Case 5:22-cv-02327-BLF Document 29 Filed 11/14/22 Page 12 of 16
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`plaintiff in a putative class action lacks standing to assert claims under the laws of states other than
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`those where the plaintiff resides or was injured.” Jones v. Micron Tech. Inc., 400 F. Supp. 3d 897,
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`908 (N.D. Cal. 2019) (collecting cases). Because Plaintiff resides in and was injured in California,
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`see Compl. ¶¶ 91-103, he does not have standing to assert claims under the laws of any other
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`states. Therefore, Plaintiff cannot bring his fraud by omission claim under the common law of any
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`state other than California.
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`HP’s second argument gets to whether Plaintiff can bring his California consumer
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`protection and fraud claims under the UCL, FAL, CLRA, and common law fraud by omission on
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`behalf of a nationwide class. See MTD at 17-22. HP cites to Mazza v. American Honda Motor
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`Co., in which the Ninth Circuit rejected a nationwide class because “variances in state law
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`overwhelm common issues and preclude predominance for a single nationwide class.” 666 F.3d
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`581, 596 (9th Cir. 2012), overruled on other grounds by Olean Wholesale Grocery Coop., Inc. v.
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`Bumble Bee Foods LLC, 31 F.4th 651 (9th Cir. 2022). As the court explained, “California law
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`may only be used on a classwide basis if ‘the interests of other states are not found to outweigh
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`California’s interest in having its law applied.’” Id. at 590 (quoting Wash. Mut. Bank, FA v.
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`Superior Ct., 24 Cal. 4th 906, 921 (2001)). The Mazza court then went on to conduct a detailed
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`choice of law analysis, including examining the differences between California’s consumer
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`protection laws and those of other states in which class members bought cars. Id. at 590-94. It
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`ultimately concluded that “under the facts and circumstances of [the] case, . . . each class
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`member’s consumer protection claim should be governed by the consumer protection laws of the
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`jurisdiction in which the transaction took place.” Id. at 594. HP argues that under the Mazza
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`analysis, California law cannot apply on a nationwide basis. MTD at 17-22. HP also argues that
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`choice of law analysis is proper at this stage because it is a purely legal issue and So cannot show
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`further discovery is necessary for the analysis. Id. at 22. So argues that California law can be
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`applied to a nationwide class because HP’s actions occurred in California. Opp. at 17-20.
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`The Court agrees that under Mazza, choice of law issues might ultimately preclude a
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`nationwide class. But as Mazza demonstrates, a detailed and fact-intensive inquiry is necessary to
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`determine the substantive law applicable to class members’ claims. Accordingly, the Court will
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`12
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`United States District Court
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`

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`Case 5:22-cv-02327-BLF Document 29 Filed 11/14/22 Page 13 of 16
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`not decide this issue at this stage of the case. See Cullen v. Shutterfly Lifetouch, LLC, No. 20-cv-
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`06040-BLF, 2021 WL 2000247, at *9 (N.D. Cal. May 19, 2021) (declining to address choice of
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`law at “early stage of the case”); see also Wallace v. SharkNinja Operating, LLC, No. 18-cv-
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`05221-BLF, 2020 WL 1139649, at *14-15 (N.D. Cal. Mar. 9, 2020); Clancy v. The Br