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finding that an image of a YouTube logo on the defendant's packaging did not constitute an express warranty of "lifetime access to YouTube"
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Case No. 4:17-cv-06407-JSW
2021-01-26
Lance BAIRD, et al., Plaintiffs, v. SAMSUNG ELECTRONICS AMERICA, INC., et al., Defendants.
Jacob L. Karczewski, Law Offices of Jacob Karczewski, Seattle, WA, for Plaintiff Lance Baird. David Raymond Ongaro, Ongaro PC, San Francisco, CA, for Plaintiffs. Lance Allan Etcheverry, Skadden, Arps, Slate, Meagher & Flom LLP, Palo Alto, CA, for Defendant Samsung Electronics America, Inc.
Jacob L. Karczewski, Law Offices of Jacob Karczewski, Seattle, WA, for Plaintiff Lance Baird.
David Raymond Ongaro, Ongaro PC, San Francisco, CA, for Plaintiffs.
Lance Allan Etcheverry, Skadden, Arps, Slate, Meagher & Flom LLP, Palo Alto, CA, for Defendant Samsung Electronics America, Inc.
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS
Re: Dkt. No. 62
JEFFREY S. WHITE, United States District Judge
Now before the Court is defendants’ motion to dismiss the amended complaint filed by Defendant Samsung Electronics America, Inc. ("Samsung"). The Court has carefully considered the parties’ papers, relevant legal authority, and the complaint, and it finds the motion suitable for disposition without oral argument. See N.D. Civ. L.R. 7-1(b). The Court GRANTS Samsung's motions to dismiss.
BACKGROUND
A. The Allegations
This case concerns discontinuation of YouTube access on Samsung's "Smart TVs." Back in 2010, when Smart TVs were novel, Samsung promoted them by promising the convenience of a television set with the access to entertainment apps of a smartphone. (Dkt. No. 25 ("FAC") ¶ 2.) Samsung did not promise access to any particular app. However, Samsung broadly advertised pictures of YouTube, Netflix, Hulu and other streaming apps on its packaging and further stated that customers can "connect" to these apps through a Smart TV in commercials, advertisements, and interviews. (Id. ¶¶ 2, 30 & Ex. B.)
Samsung could not guarantee access to all of the apps. For example, Samsung could not provide access to Netflix if the user did not have a Netflix account, a fact that it disclosed on the product packaging. (Id. ¶ 30(a).) Samsung also could not provide access to apps without an internet connection or outside of area limitations, which it also disclosed on the packaging. (Id. ) However, Samsung made no risk disclosures on the packaging with respect to YouTube. (Id. ) Plaintiffs allege that this was misleading because YouTube, which helped Samsung develop its Smart TV app, reserved the right to discontinue support at any time. (Id. ¶ 3.) And that is what happened: in 2017, YouTube stopped supporting older "flash-based" Smart TVs, and the owners of those TVs lost access to the YouTube app. (Id. ¶¶ 4-5.)
Plaintiffs are residents of California, Massachusetts, and Illinois who purchased Samsung's Smart TVs in 2011 and 2012. (Id. ¶¶ 25-28.) They claim that they relied on the packaging when they purchased the Smart TVs, believing that YouTube would be supported for the lifetime of the product, and that they would not have purchased Smart TVs if they knew that YouTube could terminate support. (Id. ¶¶ 35-37.) Plaintiffs bring claims on behalf of a class of similar purchasers for breach of contract, unjust enrichment, negligent misrepresentation, fraudulent nondisclosure, and violation of several states’ consumer protection laws.
The Plaintiffs are Lance Baird, Steve Altes, Louis Leciejewski, and Krishnendu Chakraborty (collectively, "Plaintiffs").
The Court shall address additional facts as necessary in the analysis.
B. Procedural History
This Court has previously dismissed the complaint based, in relevant part, on judicial notice of certain disclaimers in Samsung's user manuals, warranties, and terms of service. (Dkt. No. 47 ("MTD Order").) Plaintiffs appealed. The Ninth Circuit reversed and remanded because the Court did not address Plaintiffs’ arguments that the disclaimers could only be accessed after they purchased the Smart TVs and that they were substantively and procedurally unconscionable. (Dkt. No. 57 ("Mem. Opinion").)
The Ninth Circuit instructed the Court to construe the breach of contract claim as breach of an express warranty. (Id. at 4 n.2.) With respect to that claim, the court identified three additional issues, including (1) whether post-purchase disclaimers negate or limits express representations, (2) whether disclaimers that contradict an express warranty are inoperable under California Commercial Code § 2316(1), and (3) whether post-purchase disclaimers buried in a lengthy digital document are unenforceable. (Id. at 5-6.) However, the Ninth Circuit did not address whether the lack of express representations on the packaging alone doomed Plaintiffs’ claims. Because this Court "d[id] not [previously] address whether the advertising and packaging of Samsung's Smart TV boxes were independently misleading," neither did the Ninth Circuit. (MTD Order at 10.)
ANALYSIS
C. Legal Standard.
Defendants move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Dismissal under Rule 12(b)(6) is granted when the pleadings fail to state a claim upon which relief can be granted. Pursuant to Bell Atlantic v. Twombly , a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). If the allegations are insufficient to state a claim, a court should grant leave to amend, unless amendment would be futile. See Reddy v. Litton Indus., Inc. , 912 F.2d 291, 296 (9th Cir. 1990). Where a plaintiff alleges fraud, Rule 9(b) requires the plaintiff to state the circumstances constituting fraud with particularity. See Fed. R. Civ. P. 9(b). Particularity under Rule 9(b) requires the plaintiff to plead the "who, what, when, where, and how" of the misconduct. See Kearns v. Ford Motor Co. , 567 F.3d 1120, 1124 (9th Cir. 2009).
D. Request for Judicial Notice.
Samsung seeks judicial notice of the disclaimers raised in the previous motion. The Court has previously considered the documents under the incorporation by reference doctrine. (MTD Order at 5-7.) However, it did so when Plaintiffs relied on a breach of contract claim, reasoning that the disclaimers were part of the contract on which Plaintiffs’ claims are based. On appeal, the Ninth Circuit instructed this Court to construe the breach of contract claim as a breach of express warranty claim. Under that theory, consideration of the disclaimers is not appropriate.
As previously explained, incorporation by reference may only be used when documents "form[ ] the basis of the plaintiff's claim" or the plaintiff "refers extensively to the document." Khoja v. Orexigen Therapeutics, Inc. , 899 F.3d 988, 1003 (9th Cir. 2018) (quoting Coto Settlement v. Eisenberg , 593 F.3d 1031, 1038 (9th Cir. 2010) ). The purpose of the doctrine is to prevent a plaintiff "from selecting only portions of documents that support their claims, while omitting portions of those very documents that weaken—or doom—their claims." Id. (quoting Parrino v. FHP, Inc. , 146 F.3d 699, 706 (9th Cir. 1998) ). Ordinarily, warranty disclaimers are undoubtedly "integral" to an express warranty claim. See, e.g., In re Sony Gaming Networks & Customer Data Sec. Breach Litig. , 903 F. Supp. 2d 942, 954, 968 (S.D. Cal. 2012) ; Datel Holdings Ltd. v. Microsoft Corp. , 712 F. Supp. 2d 974, 984 (N.D. Cal. 2010). In those cases, however, both the warranties and the disclaimers are found in the same document, which renders consideration of the entire context appropriate. Here, on the other hand, Plaintiffs allege an express warranty on the packaging of the Smart TVs, while Samsung seeks notice of disclaimers found in entirely different documents that are cited nowhere in the complaint. They are therefore not "integral" to Plaintiffs’ claims because Samsung relies on them primarily to create a defense. Khoja , 899 F.3d at 1002.
Moreover, the import of those documents is disputed. For example, Plaintiffs dispute that they were required to open Samsung's electronic e-Manual and term and conditions before using the Smart TVs, which could significantly impact the "clear and conspicuous" nature of the disclaimers. Dorman v. Int'l Harvester Co. , 46 Cal.App.3d 11, 19-20, 120 Cal.Rptr. 516 (1975) (disclaimers that are not "clear and distinct" are not effective). Samsung attempts to work around the issue by introducing a declaration from its senior manager, but such evidence is clearly inappropriate on a 12(b)(6) motion where Plaintiffs have not had the opportunity to test the evidence. See Khoja , 899 F.3d at 1003 (noting that submitting documents not cited in the complaint deprives the plaintiff of opportunity to respond). These disputes also render judicial notice inappropriate. See id. at 1000 (judicial notice improper where "there is a reasonable dispute as to what [the document] establishes"). Accordingly, the Court DENIES Samsung's request to consider the disclaimers in these documents.
Plaintiffs state that Samsung declined Plaintiffs’ request to test the authenticity, applicability, and scope of the disclaimers through a deposition. (Dkt. No. 67-1 at 9 n.2.)
E. The Court Grants Defendants’ Motion to Dismiss.
Samsung moves to dismiss on six grounds. First, Plaintiffs fail to allege a "specific and unequivocal" statement of perpetual YouTube access for their express warranty claim. Second, they fail to comply with Rule 9(b) for claims sounding in fraud. Third, Plaintiffs fail to identify a positive assertion for the negligent misrepresentation claim. Fourth, Plaintiffs waived their fraud by nondisclosure claim. Fifth, no reasonable consumer would interpret Samsung's representations to mean that YouTube would be available in perpetuity. And sixth, Plaintiffs fail to allege gain by deception for their unjust enrichment claim. The Court addresses Samsung's arguments by claim.
1. Express Warranty Claim – First Cause of Action.
Under California law, an express warranty may arise from an "affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain," or by a "description of the goods which is made part of the basis of the bargain." Frenzel v. AliphCom , 76 F. Supp. 3d 999, 1018 (N.D. Cal. 2014) ; see Cal. Com. Code § 2313(1). To state a warranty claim, a plaintiff must allege that "(1) the seller's statements constitute an ‘affirmation of fact or promise’ or a ‘description of the goods’; (2) the statement was ‘part of the basis of the bargain’; and (3) the warranty was breached." Weinstat v. Dentsply Int'l, Inc. , 180 Cal. App. 4th 1213, 1227, 103 Cal.Rptr.3d 614 (2010) (quoting Keith v. Buchanan , 173 Cal. App. 3d 13, 19, 220 Cal.Rptr. 392 (1985) ).
A statement does not constitute an express warranty unless it is "specific and unequivocal." Maneely v. Gen. Motors Corp. , 108 F.3d 1176, 1181 (9th Cir. 1997). For example, a picture of young people standing in a cargo bed of a pickup truck is not an express warranty that doing so is safe. Id. Similarly, a statement "featuring" online gameplay on a video game package does not "specifically and unequivocally promise, or provide explicit guarantee of, immediate access" to such gameplay. McMahon v. Take-Two Interactive Software, Inc. , 745 F. App'x 786, 787 (9th Cir. 2018). On the other hand, describing a sailboat as "seaworthy" constitutes an express warranty that the boat has certain qualities or condition. Keith , 173 Cal. App. 3d at 22, 220 Cal.Rptr. 392. And stating that vitamins are "one a day" is sufficiently specific to represent that one vitamin "gummie" per day will suffice. Brady v. Bayer Corp. , 26 Cal. App. 5th 1156, 1178, 237 Cal.Rptr.3d 683 (2018).
Here, Plaintiffs do not identify any "affirmation of fact or promise" that Samsung's Smart TVs would have lifetime access to YouTube. Instead, Plaintiffs point to the product packaging that showed a YouTube logo on the Smart TV screen. The image on the packaging may be an express warranty because it provides a "description of the goods." Cal. Com. Code § 2313(1)(b). However, that image makes no "express" and "unequivocal" statement that YouTube access would be available for the lifetime of the product. Instead, the image warrants, at most, that the Smart TVs would have YouTube access as delivered. See Smith v. LG Elecs. U.S.A., Inc. , No. C 13-4361 PJH, 2014 WL 989742, at *6 (N.D. Cal. Mar. 11, 2014) (promising "high efficiency" washing machines warrants efficiency at the time of sale only). According to the complaint, Plaintiffs had access to YouTube on the Smart TVs when they first purchased them, and for five years after. Thus, to the extent that Plaintiffs have alleged an express warranty, they allege no breach. See Smith , 2014 WL 989742, at *6 ; see also McMahon , 745 F. App'x at 787 (promise of access makes no express warranty as to timing of availability).
If Samsung is correct that the Smart TVs came with a one-year express warranty, any warranty related to YouTube access would expire at that point. See Frenzel v. AliphCom , 76 F. Supp. 3d 999, 1019 (N.D. Cal. 2014) ; Sciacca v. Apple, Inc. , 362 F. Supp. 3d 787, 801 (N.D. Cal. 2019). And even if not, an express warranty claim must generally be brought within four years of the delivery of the goods unless the warranty "explicitly extends to future performance." Cardinal Health 301, Inc. v. Tyco Elecs. Corp. , 169 Cal. App. 4th 116, 129-31, 87 Cal.Rptr.3d 5 (2008).
Accordingly, the Court dismisses Plaintiffs’ express warranty claim.
2. Negligent Misrepresentation – Third Cause of Action.
To plead a negligent misrepresentation claim, a plaintiff must allege a "misrepresentation of past or existing material fact, without reasonable ground for believing it to be true, and with intent to induce another's reliance on the fact misrepresented; ignorance of the truth and justifiable reliance on the misrepresentation by the party to whom it was directed; and resulting damage." Hydro-Mill Co. v. Hayward, Tilton & Rolapp Ins. Assocs., Inc. , 115 Cal. App. 4th 1145, 1154, 10 Cal.Rptr.3d 582 (2004) (quoting Shamsian v. Atlantic Richfield Co. , 107 Cal. App. 4th 967, 983, 132 Cal.Rptr.2d 635 (2003) ). An omission is generally not actionable under a negligent misrepresentation claim. Yamauchi v. Cotterman , 84 F. Supp. 3d 993, 1018 (N.D. Cal. 2015) ; see also Daugherty v. American Honda Motor Co. , 144 Cal.App.4th 824, 838, 51 Cal.Rptr.3d 118 (2006) (no duty to disclose latent defects). An exception exists where the latent defect presents a safety issue or the defendant makes an affirmative misrepresentation. Wilson v. Hewlett-Packard Co. , 668 F.3d 1136, 1141 (9th Cir. 2012).
Here, Plaintiffs fail to allege that Samsung made an affirmative misrepresentation for the reasons above. The Smart TV packaging represented that the TVs came with YouTube, and they came with YouTube at the time of delivery. By contrast, Plaintiffs identify no affirmative representation that the Smart TVs would still have YouTube five years later. Nor have Plaintiffs alleged a safety issue. Accordingly, Plaintiffs fail to plead a negligent misrepresentation claim based on Samsung's nondisclosure of the fact that YouTube may discontinue support for its app five years after purchase. See Yamauchi , 84 F. Supp. 3d at 1018 ("[A]n omission alone cannot form the basis for a claim of negligent misrepresentation."); cf. Lopez v. Nissan N. Am., Inc. , 201 Cal. App. 4th 572, 596, 135 Cal.Rptr.3d 116 (2011) (contrasting an intentional misrepresentation claim, which may be based on an omission, from a negligent misrepresentation one, which cannot).
Thus, the Court dismisses the negligent misrepresentation claims.
The parties also dispute whether a representation about the future (i.e., a prediction) can ever be actionable. Because the Court finds that the YouTube logo here makes no representation about the future, the Court does not decide this issue.
3. Consumer Protection Law Claims – Causes of Action Nos. 8, 9, 16, and 19.
The parties do not dispute that each of the consumer protection law claims at issue—California Unfair Competition Law ("UCL"), Consumer Legal Remedies Act ("CLRA"), Illinois Consumer Fraud and Deceptive Business Practices Act, and Massachusetts Consumer Protection Act—rises and falls with the "reasonable consumer" test. Under that test, Plaintiffs must show that Samsung's act or business practice is "likely to deceive a ‘reasonable consumer.’ " See Williams v. Gerber Prods. Co. , 552 F.3d 934, 938 (9th Cir. 2008) ; Barbara's Sales, Inc. v. Intel Corp. , 227 Ill. 2d 45, 74, 316 Ill.Dec. 522, 879 N.E.2d 910 (2007) ; Workmon v. Publishers Clearing House , 118 F.3d 457, 459 (6th Cir. 1997). " ‘Likely to deceive’ implies more than a mere possibility that the advertisement might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner." Lavie v. Procter & Gamble Co. , 105 Cal. App. 4th 496, 508, 129 Cal.Rptr.2d 486 (2003). Instead, the test requires "probab[ility] that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled." Id.
Ordinarily, such questions are not properly resolved on a motion to dismiss. Williams , 552 F.3d at 939. However, in rare circumstances, "a court may determine, as a matter of law, that the alleged violations of the UCL, FAL, and CLRA are simply not plausible." Ham v. Hain Celestial Grp., Inc. , 70 F. Supp. 3d 1188, 1193 (N.D. Cal. 2014). For example, in Becerra v. Dr. Pepper / Seven Up, Inc. , 945 F.3d 1225, 1229 (9th Cir. 2019), the Ninth Circuit upheld dismissal because "no reasonable consumer would assume that Diet Dr. Pepper's use of the term ‘diet’ promises weight loss or management." Similarly, in Ebner v. Fresh, Inc. , 838 F.3d 958 (9th Cir. 2016), the court upheld dismissal of claims based on a lip balm dispenser that creates leftover product because "[t]he reasonable consumer understands the general mechanics of these dispenser tubes and further understands that some product may be left in the tube." Id. at 967 ; see also Davis v. HSBC Bank Nev., N.A. , 691 F.3d 1152 (9th Cir. 2012) (dismissing claims that "def[y] common sense" by alleging that credit card rewards render failure to disclose an annual fee deceptive). In short, courts may dismiss claims that rest on patently unreasonable assumptions.
Such is the case here. As described above, Plaintiffs’ claims rest on an inference that a reasonable consumer viewing the Smart TV packaging featuring various app logos on a screen would understand those logos to represent not only current access but also future access for the lifetime of the product. But the deceived consumer here is no ordinary purchaser: Plaintiffs allege reliance because the consumers already knew of YouTube from other platforms (smartphones, etc.) and purchased the Smart TVs based on the presence of that app. (FAC ¶ 31.) Thus, the targeted consumer here is well-familiar with third party applications and knows that most, if not all, of the apps shown on the packaging are developed by third parties who may change their software or go out of business at any time.
Samsung Vice President, Eric Anderson's interview (which is incorporated by reference as containing allegedly deceptive statements) makes this point clear: "What we want people to have top of mind is, ‘I know Samsung is an open platform and allows me to actually connect with and access all that stuff that I've been investing in ,’ " such as "my Pandora, or my Netflix, or my Vudu, or my Hulu." (FAC ¶ 30(d).) The targeted consumer here thus knows of these apps from other contexts and cannot reasonably expect Samsung to fully control the parties who make them.
Indeed, Plaintiffs allege that Samsung advertised access to Blockbuster, which, while still in business, significantly reduced operations after 2012. (FAC ¶ 30(b).) Under Plaintiffs’ theory, Samsung is liable for Blockbuster's decision to exit the streaming business—an absurd result.
In these circumstances, it is simply implausible that a "significant portion" of the tech-savvy consumers targeted by the promise of YouTube access would be deceived. First, Plaintiffs "simply cannot maintain an action sounding in fraud based on [Samsung's] supposed clairvoyance as to unspecified, future technological advancements in the field." Garcia v. Sony Comp. Ent. Am., LLC , 859 F. Supp. 2d 1056, (N.D. Cal. 2012). Samsung made no representation about the duration of access to YouTube and advertised it along with many other apps, such as Facebook and Twitter. (See FAC Ex. B (showing 26 different apps on the screen displayed on the Smart TV packaging).) It is implausible that a reasonable consumer would infer, based on this image, that Samsung guaranteed perpetual access to each of these apps. Indeed, in Garcia , 859 F. Supp. 2d at 1064, Judge Seeborg found that a "PS3" logo on a video game box could not reasonably deceive consumers into believing "that all such branded games must be compatible with all PS3 models in perpetuity, or at least for some unspecified number of years." The same result follows here: a logo is simply not specific enough for reasonable consumers to draw any conclusions about the duration of app access based on its presence.
The case is distinguishable from Morgan v. AT&T Wireless Services, Inc. , 177 Cal. App. 4th 1235, 1256, 99 Cal.Rptr.3d 768 (2009), because the defendant there specifically caused the technological change that would make plaintiffs’ products less functional. Here, by contrast, Plaintiffs have not alleged that Samsung caused the changes or knew, with certainty, that YouTube would discontinue support.
Second, Plaintiffs do not dispute that the Smart TVs included a one year limited warranty covering the parts and service of the physical Smart TVs. (See Dkt. No. 35 at 60-65 (Exhibits 5 & 6).) Putting aside whether these warranties disclaimed the alleged warranties on the packaging, no reasonable consumer would expect a warranty for software to last longer than the warranty for the device that runs it. Cf. Daugherty v. Am. Honda Motor Co. , 144 Cal.App.4th 824, 838, 51 Cal.Rptr.3d 118 (2006) ("The only expectation buyers could have had about the [product] was that it would function properly for the length of [defendant's] express warranty, and it did."). Under Plaintiffs’ theory, Samsung would be liable if YouTube stopped supporting its app, but not if the Smart TVs fell apart and lost access to all apps altogether. That is an implausible result not supported by any statement made by Samsung. See Garcia , 859 F. Supp. 2d at 1065 ("[A]bsent an affirmative misrepresentation, consumers have no legitimate expectation that a product will properly function after the expiration of the warranty.").
Third, to reiterate, each of the apps displayed on the packaging was made by a third-party, and Samsung specifically advertised the "open platform" nature of the Smart TVs. Even in 2011, consumers could reasonably expect software to change. For instance, in Yastrab v. Apple, Inc. , 173 F.Supp.3d 972, 975 n.1, 979 (N.D. Cal. 2016), Judge Davila rejected UCL claims based on advertising of Wi-Fi and Bluetooth capabilities on Apple iPhones because "Plaintiffs have not identified any pre-purchase representations made by Apple about the consistency of these features." Similarly, in In re Sony Gaming Networks & Customer Data Sec. Breach Litig. , 903 F. Supp. 2d 942, 968 (S.D. Cal. 2012), the court dismissed claims based on statements that game consoles could connect to online services, such as Netflix, because "Sony never represented that the PSPs and PS3s would ‘always’ be able to access the internet and/or connect to other online devices." In both of these cases, the loss of access was due to the party's own actions—an iOS software update and a decision to shut down online access due to a data breach. Here, the case is even weaker because both the promise of access and its loss stemmed from decisions by a third party (YouTube), which the targeted consumers reasonably knew because they were familiar with the apps from other contexts.
Plaintiffs attempt to distinguish these cases, for example, by arguing that the plaintiff "mixed technologies" in Garcia and plaintiffs updated their phone in Yastrab , but fail to explain why these differences change the ultimate conclusion: absent promises of perpetual or constant access, software may be changed without committing consumer fraud.
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Accordingly, the Court finds Plaintiffs’ claims too implausible to proceed as alleged. Becerra , 945 F.3d at 1230 ; Davis , 691 F.3d at 1162. Plaintiffs’ cited cases and evidence only reinforce the differences with this case. In each of Plaintiff's cases, the court considered the product packaging to indicate a current quality of the product. For example, in Williams , 552 F.3d at 940, the court considered pictures of fruit on baby food packaging to infer that the baby food had fruit as sold. In Broomfield v. Craft Brew Alliance, Inc. , Judge Freeman similarly considered images of Hawaii on beer packaging to infer that the beer came from Hawaii as sold. No. 17-cv-01027-BLF, 2017 WL 3838453 (N.D. Cal. Sept. 1, 2017). And in Escobar v. Just Born, Inc. , the court used pictures of candy on a package to infer that is represented the amount of candy inside as sold. No. CV 17-01826 (PJWx), 2017 WL 5125740 (C.D. Cal. June 12, 2017) ; see also Perkins v. Philips Oral Health Care, Inc. , No. 12-cv-1414 H (BGS), 2012 WL 12848176, at *4 (S.D. Cal. Dec. 7, 2012) (same for product's current effectiveness at flossing). None of Plaintiffs’ cases involve a packaging that represents a future quality of the product—such as the amount of candy a package would have a week from now or a floss's ability to remove plaque two years after sale.
Plaintiffs’ alleged facts also fail to support their claim. Plaintiffs point to the existence of disclaimers for other third party apps on the Smart TV packaging, but each of those disclaimers relates to access as sold. For instance, Plaintiffs allege that the packaging warned buyers that they cannot access Netflix without an account, but that relates to accessibility "out of the box." (FAC ¶ 30(a).) Plaintiffs also allege that Smart TVs were novel in 2011 or 2012, but that is precisely the point: Smart TVs were so novel that Samsung leveraged consumers’ existing familiarity with third-party apps to create a "loyalty loop" driving Smart TV purchases. (See id. ¶ 30(d) (video at 4:09-4:50).) Thus, Plaintiffs’ alleged facts to not raise a reasonable inference that Samsung's packaging was likely to deceive a reasonable consumer. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.
Accordingly, the Court dismisses Plaintiffs’ consumer protection law claws.
4. Unjust Enrichment – Second Cause of Action.
The parties agree that Plaintiffs’ unjust enrichment claim rests on violation of the claims stated above. See Rojas-Lozano v. Google, Inc. , 159 F. Supp. 3d 1101, 1120 (N.D. Cal. 2016) (explaining that "there is no standalone cause of action for unjust enrichment" under California law and dismissing the claim for failure to plead violation of a predicate claim). Accordingly, the Court dismisses this claim for the reasons stated above.
5. Remaining Claims – Causes of Action Nos. 4, 5, 6-7, 10-15, 17-18, 20-32.
The Court has previously dismissed Plaintiffs’ claims under fraud by disclosure (fourth cause of action), implied warranty (fifth cause of action), and consumer protection law claims for states where Plaintiffs do not reside (causes of action nos. 6-7, 10-15, 17-18, and 20-32). Plaintiffs did not appeal this ruling, did not amend the complaint, and provide no argument addressing these claims in their briefing. Accordingly, these claims are dismissed for the reasons stated previously. (See MTD Order at 3-4, 10-13.)
F. CONCLUSION
For the foregoing reasons, the Court GRANTS Samsung's motion to dismiss with leave to amend. Plaintiffs shall file and serve an amended complaint or a statement that no such amended complaint shall be filed within twenty days of the date of this Order, and defendants shall file their response within twenty days thereafter.