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`Darren K. Cottriel (State Bar No. 184731)
`dcottriel@jonesday.com
`JONES DAY
`3161 Michelson Drive, Suite 800
`Irvine, CA 92612
`Telephone: +1.949.851.3939
`Facsimile:
`+1.949.553.7539
`
`Carol A. Hogan (admitted pro hac vice)
`chogan@jonesday.com
`JONES DAY
`110 North Wacker Drive, Suite 4800
`Chicago, IL 60606
`Telephone: +1.312.782.3939
`Facsimile:
`+1.312.782.8585
`
`Courtney L. Snyder (admitted pro hac vice)
`clsnyder@jonesday.com
`JONES DAY
`500 Grant Street, Suite 4500
`Pittsburgh, PA 15219
`Telephone: +1.412.391.3939
`Facsimile: +1.412.394.7959
`
`Attorneys for Defendants
`HRB DIGITAL LLC and HRB TAX GROUP, INC.
`
`SUPERIOR COURT OF THE STATE OF CALIFORNIA
`COUNTY OF LOS ANGELES
`
` THE PEOPLE OF THE STATE OF
`CALIFORNIA,
`
`Plaintiff,
`
`v.
`HRB DIGITAL LLC, a Delaware limited
`liability company; HRB TAX GROUP, INC.,
`a Missouri corporation, and DOES 2-50,
`inclusive,
`
`Defendants.
`
`CASE NO. 19STCV15742
`Assigned for all purposes to
`Honorable Randolph Hammock, Dept. 49
`DEFENDANTS’ REPLY
`MEMORANDUM OF POINTS AND
`AUTHORITIES IN SUPPORT OF
`MOTION FOR SUMMARY
`JUDGMENT, OR IN THE
`ALTERNATIVE, SUMMARY
`ADJUDICATION
`
`Date: December 1, 2022
`Time: 8:30 A.M.
`Reservation ID: 271007973114
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`NAI-1534174258v16
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`DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF SUMMARY JUDGMENT OR
`ADJUDICATION
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`Electronically FILED by Superior Court of California, County of Los Angeles on 11/14/2022 06:40 PM Sherri R. Carter, Executive Officer/Clerk of Court, by M. Gonzalez,Deputy Clerk
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`TABLE OF CONTENTS
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`Page
`INTRODUCTION .......................................................................................................................... 1
`
`
`ARGUMENT .................................................................................................................................. 2
`I.
`BLOCK CANNOT BE HELD LIABLE UNDER THE UNFAIR COMPETITION
`LAW. ................................................................................................................................... 2
`A.
`LACA’s Complaint Must Be Analyzed as a Fraudulent Omission Claim.............. 2
`B.
`Block Cannot Be Held Liable on a Fraudulent Omission Theory. ......................... 4
`1.
`Block Had No Duty to Disclose the Block Free File Offering. .................. 4
`2.
`The Existence of the Block Free File Offering Was Not Material. ............ 8
`3.
`Omitting Information About the Block Free File Offering Did Not
`Affect the Central Functionality of the Block Commercial Products. ........ 8
`LACA’s Challenged Statements Are Non-Actionable Puffery. ............................. 9
`C.
`LACA CANNOT RECEIVE INJUNCTIVE RELIEF. .................................................... 10
`II.
`CONCLUSION ............................................................................................................................. 10
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`CASES
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`TABLE OF AUTHORITIES
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`Page
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`August Storck K.G. v. Nabisco, Inc.,
`59 F.3d 616 (7th Cir. 1995) ....................................................................................................... 9
`
`Boschma v. Home Loan Ctr, Inc.,
`198 Cal.App.4th 230 (2011)...................................................................................................... 6
`
`Buller v. Sutter Health,
`160 Cal.App.4th 981 (2008).......................................................................................... 2, 5, 6, 8
`
`Chapman v. Skype Inc.,
`220 Cal.App.4th 217 (2013)...................................................................................................... 3
`
`Collins v. eMachines, Inc.,
`202 Cal.App.4th 249 (2011).................................................................................................. 4, 5
`
`Consumer Advocates v. Echostar Satellite Corp.,
`113 Cal.App.4th 1351 (2003).............................................................................................. 9, 10
`
`Daugherty v. Am. Honda Motor Co.,
`1997. 144 Cal.App.4th 824 (2006) ....................................................................................... 7, 8
`
`Demetriades v. Yelp, Inc.,
`228 Cal.App.4th 294 (2014)...................................................................................................... 9
`
`Doe v. SuccessfulMatch.com,
`70 F. Supp. 3d 1066 (N.D. Cal. 2014) ...................................................................................... 6
`
`Doe v. Superior Court,
`237 Cal.App.4th 239 (2015)...................................................................................................... 4
`
`Gutierrez v. CarMax Auto Superstores Cal.,
`19 Cal.App.5th 1239 (2018)...................................................................................................... 8
`
`Hall v. SeaWorld Entm’t, Inc.,
`747 F. App’x 449 (9th Cir. 2018) ............................................................................................. 8
`
`Hodsdon v. Mars, Inc.,
`891 F.3d 857 (9th Cir. 2018) ............................................................................................. 2, 4, 9
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`In re Apple Inc. Device Performance Litig.,
`386 F. Supp. 3d 1155 (N.D. Cal. 2019) ................................................................................ 8, 9
`
`Kwikset Corp. v. Super. Ct.,
`51 Cal.4th 310 (2011) ............................................................................................................... 3
`
`Levine v. Blue Shield of California,
`189 Cal.App.4th 1117 (2010)................................................................................................ 5, 6
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`LiMandri v. Judkins,
`52 Cal.App.4th 326 (1997)................................................................................................ 2, 4, 9
`
`O’Shea v. Epson Am., Inc.,
`2011 WL 3299936 (C.D. Cal. July 29, 2011) ........................................................................... 8
`
`People v. Padilla-Martel,
`78 Cal.App.5th 139 (2022)...................................................................................................... 10
`
`Rubenstein v. The Gap, Inc.,
`14 Cal.App.5th 870 (2017)........................................................................................................ 4
`
`Rutledge v. Hewlett-Packard Co.,
`238 Cal.App.4th 1164 (2015).................................................................................................... 4
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`Schonfeld v. City of Vallejo,
`50 Cal.App.3d 401 (1975) ................................................................................................... 9, 10
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`INTRODUCTION
`The Los Angeles City Attorney (“LACA”) knows there is nothing fraudulent or unfair
`about Block’s Commercial Free product. Indeed, literally millions of people use it to complete
`their tax returns free of charge, without any need to upgrade to a Block paid commercial product.
`Instead, LACA claims that Block violated the Unfair Competition Law (“UCL”) by advertising
`and offering its Commercial Free and other commercial products without simultaneously
`disclosing the existence of the Block Free File offering through the IRS Free File program.
`As a threshold matter, LACA’s claim is a fraudulent omission claim under the UCL
`because it fundamentally complains that Block misled consumers by omitting information about
`the Block Free File offering. LACA’s attempts to wedge its allegations into a misrepresentation
`claim are unavailing. Contrary to its arguments, none of Block’s statements were factually
`incorrect with regard to its commercial products, nor did advertising its commercial products
`imply that there were no less expensive or free alternatives. Rather, the allegedly misleading
`nature of Block’s statements stems solely from information that Block omitted about the Block
`Free File offering through the IRS Free File program—i.e., information that another product
`existed through the IRS Free File program which could file tax returns for free, albeit without the
`features and add-on benefits available through Block’s commercial products.
`Properly framed, LACA has not shown triable issues of fact as to any of the three required
`elements of its fraudulent omission claim. LACA alleges a duty to disclose based on active
`concealment and partial representations. But Block’s brief de-indexing activity had no effect on
`consumers’ ability to access the Block Free File offering through the IRS website. And the
`caselaw is clear that a company has no duty to disclose discounted products when it advertises its
`full-price ones. Otherwise, a business would need to disclose any discount it offers whenever it
`advertises its products—driving businesses to stop offering discounts and ultimately harming
`consumers. This rings especially true with discounted offers made available as part of a
`government program.
`LACA’s attempts to show materiality and central functionality also fail. Both Block’s and
`LACA’s expert surveys show disclosure of the Block Free File offering had no material impact on
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`I.
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`consumers. As to central functionality, LACA primarily tries to avoid the requirement altogether.
`But it undeniably applies here, and omitting disclosure that another program might prepare free tax
`returns in no way affected the functionality of Block’s commercial products.
`In addition, the alleged “misstatements” raised by LACA are classic puffery and
`independently non-actionable. And finally, Intuit’s reliance on the superior court’s ruling in
`California v. Intuit Inc. is misplaced. The Intuit Order is not controlling authority, and it has no
`impact here. It was decided on different facts (from a greatly truncated and disparate record), and
`it applied the wrong legal standard to assess partial representations.1
`ARGUMENT
`BLOCK CANNOT BE HELD LIABLE UNDER THE UNFAIR COMPETITION LAW.
`LACA cannot satisfy any of the three required elements for a UCL fraudulent omission
`claim: (1) a duty to disclose, (2) materiality, and (3) central functionality. Hodsdon v. Mars, Inc.,
`891 F.3d 857, 863 (9th Cir. 2018) (citing LiMandri v. Judkins, 52 Cal.App.4th 326 (1997)). In
`addition, the statements LACA challenges are non-actionable puffery.
`LACA’s Complaint Must Be Analyzed as a Fraudulent Omission Claim.
`A.
`In Buller v. Sutter Health, the plaintiff alleged the defendant hospital violated the UCL
`because it “ha[d] an undisclosed policy of discounting balances for [certain eligible] consumers”
`but failed to “inform consumers about the availability of the discount.” 160 Cal.App.4th 981, 984
`(2008). The plaintiff characterized this as an affirmative misrepresentation because the hospital’s
`bills “misstate[] the amount due.” Id. at 986 (alteration in original). The Court of Appeal
`disagreed. “[T]he complaint’s focus is on respondent’s alleged failure to disclose their prompt-pay
`discount policy,” so it was an omissions case. Id. at 987. So too here: LACA’s complaint focuses
`on Block’s failure to disclose the Block Free File offering. E.g., Compl. ¶ 74g.
`To escape Buller, LACA claims that it challenges affirmative misrepresentations. Opp. 9.
`That is wrong. LACA first points to Kwikset, which involved a statement that a lock was “Made
`
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`1 LACA is wrong factually too. In opposing Block’s motion, LACA raises a host of
`baseless evidentiary objections to facts that LACA itself relied upon in its own Complaint. It also
`relies on evidence that it knows is inadmissible, that does not support its claims, or that is subject
`to Block’s pending motion to exclude.
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`in the USA.” Opp. 6; Kwikset Corp. v. Super. Ct., 51 Cal.4th 310, 327-31 (2011). But that
`statement was straightforwardly false—the lock was not made in the USA. Here, the statements
`that LACA points to are quite different. For example, LACA alleges that Block told certain
`consumers they “need” to purchase a Block paid product to continue preparing their taxes on
`Block’s commercial platform. Compl. ¶ 74g; Opp. 7. But absent a duty to disclose the Block Free
`File offering, that statement is accurate—none of those consumers were eligible for Block’s
`Commercial Free offering; they needed to purchase a Block paid product to continue.
`Recognizing this basic truth would not “convert every … affirmative misrepresentation
`claim to an omission.” Opp. 9. Claiming that a lock was made in the USA when it was not is
`false, without reference to anything else. Telling consumers they need to purchase a Block paid
`product to continue, though, only becomes allegedly misleading when considered in reference to
`the IRS Free File program offering, i.e., only when considered in reference to allegedly omitted
`information about the Block Free File offering—just as the demand to pay the listed price in Buller
`only became allegedly misleading when compared with the hospital’s prompt-pay discount. It is
`thus LACA, not Block, which distorts this doctrine by turning every omissions case into an
`affirmative misrepresentation case and vastly expand the duty to disclose.
`LACA also points to Chapman, where a company advertised a calling plan as “Unlimited,”
`but disclosed limitations in an accompanying “fair usage policy.” Chapman v. Skype Inc., 220
`Cal.App.4th 217, 227-28 (2013); Opp. 8. The court held that advertisement was misleading
`because a reasonable consumer could understand “fair usage policy” to mean “a policy to protect
`against misuse of the service provided” rather than a policy limiting call usage. Id. LACA says
`that Block’s “[d]ecision to list its products but only includ[e] its commercial products” while
`excluding the “Free File Product” is in the same vein. Opp. 8. But listing only commercial
`products is not an ambiguous statement that could be interpreted in a misleading manner; it
`implies nothing about whether other, non-commercial products might exist. No one would think,
`for instance, that Wendy’s must disclose its veterans’ discount just because it advertises its burgers
`generally.
`None of this changes when Block’s conduct is analyzed as a whole, as LACA says it must
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`be. Opp. 7-9. Considering LACA’s allegations individually or collectively, it is clear that the only
`purported scheme it alleges is omitting information about a cheaper (but more feature-limited)
`product when it advertised its own commercial products. That is an omissions claim.
`Block Cannot Be Held Liable on a Fraudulent Omission Theory.
`B.
`An omission plaintiff must prove (1) a duty to disclose under “one of the … LiMandri
`factors”; (2) that the alleged omission was material; and (3) that the omitted information “affects
`the central functionality of a product.” Hodsdon, 891 F.3d at 863 (citing LiMandri v. Judkins, 52
`Cal.App.4th 326 (1997)). All elements are required, yet LACA cannot satisfy any.2
`Block Had No Duty to Disclose the Block Free File Offering.
`1.
`LACA does not dispute that the IRS Free File program did not impose any duty to disclose.
`For good reason. The MOU expressly provided that Block and other participants had no
`“obligation” to market the IRS Free File program and could “advertis[e]” their “commercial …
`services” “in the same manner as they could if they were not participating in the IRS Free File
`program,” including advertising commercial tax preparation software or services offered at no cost
`or for a fee to any taxpayer. MOU ¶ 13; Addendum to 8th MOU; see also ¶ 2.6 of the Operating
`Agreement. Nor does California law impose a duty to disclose the Block Free File offering.
`LACA claims that two of the LiMandri factors—active concealment and misleading partial
`representations—triggered a duty to disclose, but neither is satisfied here.
`As to active concealment, LACA claims that Block had to disclose the Block Free File
`offering because Block “change[d] the coding of its Free File landing page to prevent users from
`finding the site” in search results from “April 2018 to April 2019.” Opp. 16. But active
`concealment occurs when the defendant “prevents the discovery of material facts,” Rubenstein v.
`The Gap, Inc., 14 Cal.App.5th 870, 878 (2017) (emphasis added), not when it (briefly) makes
`publicly available information less accessible from one of many sources. For example, in Collins
`
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`2 LACA argues that (Opp. 10) whether a duty to disclose exists is a fact question. “The
`existence of a duty to disclose,” though, is a classic “question of law.” Doe v. Superior Court, 237
`Cal.App.4th 239, 244 (2015). Nothing in Rutledge v. Hewlett-Packard Co. suggests otherwise. In
`discussing materiality, the court explained that “whether a manufacturer’s representation … is
`specific[] and was relied upon by a consumer” was a question of fact. 238 Cal.App.4th 1164,
`1176 (2015). Block does not dispute that materiality is sometimes a fact question.
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`v. eMachines, Inc., the court found active concealment because the manufacturer deceived
`customers about its difficult-to-discover computer defects in its “‘customer support’ guides, in
`customer service diagnoses, and at call centers,” not because it made it slightly harder to access
`public information about those defects. 202 Cal.App.4th 249, 253 (2011). As Block explained
`(and LACA does not substantively dispute), Block’s brief de-indexing activity had no effect on
`consumers’ ability to access the Block Free File offering through the IRS website—which itself
`was discoverable through a simple Google search—among a host of other methods. See Mem. 11;
`People’s SSUMF ¶¶ 6-8, 14. LACA has presented no evidence to support its counterintuitive
`claim that a “significant portion” of “reasonabl[e] consumers” couldn’t find a product that was
`always available through a prominent, search-friendly government website because of Block’s
`temporary de-indexing.
`As to partial representations, LACA’s argument equally fails, as shown by factually
`analogous cases and the standard more generally. In Buller, the court held that a hospital had no
`duty to disclose an available discount even though it issued a bill insisting on the full price. 160
`Cal.App.4th at 988. And in Levine v. Blue Shield of California, the court held that a health insurer
`had no duty to disclose how a customer could obtain insurance at a lower price because there was
`no “duty to disclose to a purchaser of its goods or services the lowest price that the entity is willing
`to accept for those goods or services.” 189 Cal.App.4th 1117, 1132 (2010). Here, the case before
`the Court is even stronger. If the hospital in Buller had no duty to disclose despite its statement
`demanding the full price, then Block certainly had no duty to disclose the existence of the Block
`Free File offering simply because it (accurately) told consumers that they had to upgrade to one of
`its paid products to continue. That is particularly true because, unlike the medical services in
`Buller, the Block Free File offering had different features from Block’s commercial products and
`was subject to additional requirements. To play a variation on the earlier Wendy’s example, the
`law does not demand Wendy’s inform a young customer about its student discount just because it
`told him that he did not qualify for the early bird discount and so he “needed” to pay full price.
`Indeed, if LACA is right, then Wendy’s must disclose all the discounts it offers—upfront, to every
`customer—if it ever suggests customers must pay full price.
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`LACA tries to distinguish Buller and Levine by claiming that those cases concerned a
`“standalone duty … to disclose [the defendant’s] lowest price,” not partial representations. Opp.
`14. But Buller did not involve a standalone duty; there was a partial representation by the hospital
`in the form of the hospital bill stating the price for services. 160 Cal.App.4th at 988. Likewise,
`Levine involved a partial representation by the insurer in the form of the stated price for insurance
`coverage. 189 Cal.App.4th at 1129. LACA refuses to acknowledge these partial representations
`because it has no argument that Buller and Levine do not fully control in light of Block’s
`analogous partial representations. The scope of the duty to disclose under Buller and Levine also
`squares with common sense. A company advertising a product at a stated price does not imply
`that the product could not be obtained more cheaply, let alone through a government program with
`different features. These are arm’s-length relationships, not fiduciary ones. Respecting Buller and
`Levine’s limitation on the duty to disclose is also quite important. Without it, a business would
`need to disclose any discount it offers—on its own or through a government or partner program.
`No company would take on this obligation. Imposing such a duty would actually harm consumers
`by discouraging discounts entirely. See Buller, 160 Cal.App.4th at 981.
`Turning to the applicable standard more generally, LACA’s cited authority only proves
`Block’s point that a partial representation can trigger a duty to disclose only when it involves the
`same product as the omitted information. In Boschma v. Home Loan Ctr, Inc., the court found a
`partial representation where the loan at issue included disclosures that negative amortization on a
`loan “may occur” when, in fact, negative amortization on that same loan was “certain to occur.”
`198 Cal.App.4th 230, 242 (2011). The same is true in Doe v. SuccessfulMatch.com—a disclosure
`that a profile “may be shared on other sites” is related to the same product as the omitted
`information when “the sharing” of that same profile “would always in fact happen.” 70 F. Supp.
`3d 1066, 1079 (N.D. Cal. 2014). Those opinions focused on how consumers would interpret those
`statements only because the same-product threshold requirement was obviously satisfied.
`Here, Block’s commercial products are “very different” than the Block Free File offering,
`as LACA concedes, Compl. ¶ 37, so discussing one would not trigger a duty to disclose the other.
`Indeed, when Block highlighted in its opening brief that LACA itself has described Block’s
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`commercial products as “very different” from the Block Free File offering, LACA never tried to
`backpedal—and for good reason. The Block Free File offering had different backend logic and
`coding (SSUMF ¶¶ 3-4), different eligibility requirements (id. ¶ 9), and was never listed on the
`Block commercial product landing page (id. ¶ 4). More, Block commercial products offered a
`variety of features not available through the Block Free File offering, like expert tax advice, audit
`support, identity theft protection, and six years of storage. Id. ¶ 1. Indeed, LACA’s own expert
`testified that the offerings were “distinct,” “different products.” Cottriel Decl. Exh. B (Pitt. Dep.,
`Oct. 4, 2022 at 144:1-6, 144:20-145:15). The MOU also made the products’ distinctions
`abundantly clear: for example, the IRS controlled how taxpayers could access the Block Free File
`offering (Preamble); unilaterally determined what federal forms and schedules must be offered (¶
`4.5.1-2); and dictated what Block could say to returning Free File users (¶ 4.14).
`LACA’s attempt to distinguish Daugherty v. Am. Honda Motor Co. is unavailing.
`Daugherty held that statements regarding an engine defect in certain engines in automobiles
`manufactured from 1990 to 1993 did not trigger a duty to disclose information about that same
`engine placed in automobiles manufactured from 1994 to 1997. 144 Cal.App.4th 824, 827-28,
`837 n.6 (2006). LACA says that Daugherty is different because it involved “particular products”
`whereas Block’s statements are “about all of Block’s products.” Opp. 13. But LACA does not
`cite any Block statement referring to “all” its products, and it fails to explain why a statement
`referring to the “right” product includes the Block Free File offering alongside commercial ones.
`Regardless, this case is even easier than Daugherty, which illustrates the narrow scope of
`the partial representation exception. The manufacturer there triggered no duty to disclose even
`though it provided information about the same engine in different model years; the defendant’s
`statement was at least in the same ballpark as the omitted information, but there was still no duty
`to disclose. Here, Block’s statements regarding its commercial products were far removed from
`the allegedly omitted information concerning the Block Free File offering. If there was no duty to
`disclose in Daugherty, there can be no duty to disclose here. Again, LACA’s position would turn
`the duty to disclose on its head. If businesses could never recommend the “right” product or a
`“needed” upgrade without thereby triggering a duty to disclose all discounted products—even
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`through a government program—they would never speak. The UCL is broad, but it does not
`sweep that far. See Buller, 160 Cal.App.4th at 986-92.
`LACA also relies (Opp. 14-15) on the Intuit Order’s conclusion, but that Order was wrong
`on the law and distinguishable on the facts. Legally, Daugherty and Gutierrez v. CarMax Auto
`Superstores Cal. make clear that the relevant question is not whether the Block Free File offering
`is the “same type” of product as commercial tax preparation products, but whether it is the same
`actual product. 144 Cal.App.4th at 837 n.6; 19 Cal.App.5th 1239, 1262-63 (2018); see Mem. 12-
`13; O’Shea v. Epson Am., Inc., 2011 WL 3299936, at *8 (C.D. Cal. July 29, 2011) (rejecting duty
`to disclose similar products). The Intuit Order is also distinguishable factually. It was decided on
`Intuit’s insufficient record, whereas here Block has amply demonstrated the key distinctions
`between the Block Free File offering and Block’s commercial products. See supra pp. 6-7.
`The Existence of the Block Free File Offering Was Not Material.
`2.
`LACA’s claim also independently fails because disclosing the IRS Free File program
`offering would have had no material impact on consumers. Both Simonson’s surveys and
`Pittaoulis’s second survey prove that. To be sure, Pittaoulis’s first survey got a different result.
`But that survey should be excluded; it only reached that result due to improper demand effect bias.
`And while LACA points to non-expert “evidence” that consumers like free products and consider
`price, Simonson’s surveys demonstrate that there is no triable factual issue on whether disclosing
`the Block Free File offering would have been material to consumers here.
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`3.
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`Omitting Information About the Block Free File Offering Did Not
`Affect the Central Functionality of Block Commercial Products.
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`LACA cannot meet the third element of an omission claim, central functionality. Contrary
`to LACA’s assertions, the central functionality test has been applied to claims concerning
`defective services (not just products), Hall v. SeaWorld Entm’t, Inc., 747 F. App’x 449, 451 (9th
`Cir. 2018), and to partial representation cases, In re Apple Inc. Device Performance Litig., 386 F.
`Supp. 3d 1155, 1179 (N.D. Cal. 2019). Likewise, LACA is wrong to say that “central
`functionality” is only an alternative way to prove a duty to disclose; the Ninth Circuit explained
`that even LACA’s chief authority “cite[s] favorably” to “the holding in Collins” on “central
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`functionality of a product.” Hodsdon, 891 F. 3d at 863 (discussing Rutledge, 238 Cal.App.4th at
`1173). Courts have thus made clear that a party must plead and prove “(1) the omission is
`material; (2) the defect is central to the product’s function; and (3) at least one of the” LiMandri
`factors. In re Apple, 386 F. Supp. 3d at 1176.
`LACA’s allegations cannot and do not satisfy the central functionality test. LACA posits
`first that the central function of Block’s products is to guide the consumer to the right product.
`Opp. 12. But Block is a tax preparation company, not a fiduciary or a consulting firm.
`Undoubtedly, the central functionality of its products is to accurately calculate the taxpayer’s taxes
`and file his or her return. LACA also says that, even if “accuracy” is key, Block was not accurate
`because it told consumers that certain commercial products were “right” for them. Id. But
`omitting information about a separate and distinct program obviously would not affect the
`accuracy of Block’s products in the relevant sense—correctly completing one’s taxes.
`LACA’s Challenged Statements Are Non-Actionable Puffery.
`C.
`The alleged “misstatements” raised by LACA are also non-actionable as classic puffery.
`While puffery is sometimes a factual question (Opp. 18) it is often resolved as a matter of law, see
`Consumer Advocates v. Echostar Satellite Corp., 113 Cal.App.4th 1351, 1361 (2003).
`LACA claims that Block’s statements about what product is “right” or “best,” or that
`consumers “needed” to upgrade, are not puffery because they were “specific.” Opp. 19. That is
`wrong. Statements are puffery as a matter of law when they are “general, subjective claim[s]
`about a product,” rather than statements that are “quantifiable” or that “make[ ] a claim as to the
`‘specific or absolute characteristics of a product.’” Demetriades v. Yelp, Inc., 228 Cal.App.4th
`294, 311 (2014) (internal citation omitted). Calling a product the “best” or “right” one is a vague
`and generalized statement of subjective opinion; it is not a specific assertion of objective fact.
`Rather, such “[s]tatements of opinion” are “considered as ‘dealer’s talk’ or ‘puffing.’” Schonfeld
`v. City of Vallejo, 50 Cal.App.3d 401, 412 (1975), overruled on other grounds by Morehart v.
`Cnty. of Santa Barbara, 7 Cal.4th 725 (1994). Likewise, statements that a consumer “need[s]” a
`particular product in light of the available features are generalized and subjective statements of
`opinion, not specific assertions of fact. See, e.g., August Storck K.G. v. Nabisco, Inc., 59 F.3d 616,
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