Cullis v. Tesla, Inc.

• Court: District Court, E.D. California
• Decided: October 25, 2024
• Docket: 2:23-cv-00798
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH CULLIS, No. 2:23-cv-00798-DAD-DMC 12 Plaintiff, 13 v. ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE 14 TESLA INC., et al., PLEADINGS AND DISMISSING PLAINTIFF’S COMPLAINT WITH LEAVE 15 Defendants. TO AMEND 16 (Doc. No. 13)

17 18 This matter is before the court on the motion for judgment on the pleadings filed by 19 defendants Tesla Inc. and Tesla Motors, Inc. (“Tesla”) on March 25, 2024. (Doc. No. 13.) On 20 June 12, 2024, the pending motion was taken under submission on the papers pursuant to Local 21 Rule 230(g). (Doc. No. 24.) For the reasons explained below, the court will grant defendants’ 22 motion for judgment on the pleadings. 23 BACKGROUND 24 On March 24, 2023, plaintiff Joseph Cullis filed his complaint in the Shasta County 25 Superior Court initiating this false advertising action against defendants. (Doc. No. 1-2 at 6.) In 26 his complaint, plaintiff alleges the following. 27 Plaintiff Cullis is an individual residing at Shasta Lake, California. (Id. at ¶ 9.) In March 28 2021, plaintiff purchased a 2021 Tesla Model 3 (the “Subject Vehicle”) from defendants’ website 1 and took delivery of the Subject Vehicle from defendants’ factory in Fremont, California. (Id.) 2 Plaintiff was told by one of defendants’ employees when he picked-up the vehicle that the Tesla 3 Service Center in Chico, California was the closest Tesla facility to his residence despite being 80 4 miles away. (Id. at ¶ 25.) On November 9, 2022, the Subject Vehicle was damaged in an 5 accident. (Id. at ¶ 25.) Plaintiff had the Subject Vehicle repaired at Courtesy Automotive 6 Collision Center, the closest third-party repair shop authorized to work on Tesla vehicles, which 7 was 70 miles away from his residence. (Id. at ¶ 26.) Courtesy Automotive requested the 8 necessary parts to repair the Subject Vehicle in or around mid-November, but it took until the first 9 week of January 2023 for defendants to send the parts. (Id.) 10 Defendants advertise to the general public in California and in the United States. (Id. at 11 ¶ 28.) In their representations to the public, defendants recommend that repairs for Tesla vehicles 12 should be done through Tesla Service Centers or Tesla-authorized repair facilities. (Id. at ¶ 23.) 13 However, as defendants’ business grew from 2021 to 2022, the number of Tesla service locations 14 grew at a slower rate. (Id. at ¶ 24.) This has led to some Tesla customers being far away from 15 their nearest Tesla Service Center or facing delays in receiving replacement parts. (Id. at ¶ 27.) 16 On April 28, 2023, defendants removed this action from the Shasta County Superior Court 17 to this federal court. (Doc. No. 1.) In his complaint, plaintiff asserts the following four claims 18 against both defendants: (1) failure to disclose and dissemination of untrue and misleading 19 advertising in violation of California’s False Advertising Law (“FAL”), California Business and 20 Professions Code §§ 17500, et seq.; (2) unfair business practices in violation of California’s 21 Unfair Competition Law (“UCL”), California Business and Professions Code §§ 17200, et seq.; 22 (3) unlawful business practices in violation of the UCL; and (4) failure to maintain reasonably 23 close repair facilities and commence repairs within a reasonable time in violation of the Song- 24 Beverly Consumer Warranty Act (“Song-Beverly”), California Civil Code §§ 17500, et seq. 25 (Doc. No. 1-2 at 13–18.) 26 On March 25, 2024, defendants filed the pending motion for judgment on the pleadings. 27 (Doc. No. 13.) On April 24, 2024, plaintiff filed his opposition to the pending motion (Doc. 28 No. 18), and on May 15, 2024, defendants filed their reply thereto (Doc. No. 22). 1 LEGAL STANDARD 2 A. Rule 12(c) — Judgment on the Pleadings 3 Federal Rule of Civil Procedure 12(c) provides that: “After the pleadings are closed—but 4 early enough not to delay trial—a party may move for judgment on the pleadings.” 5 A motion for judgment on the pleadings “challenges the legal sufficiency of the opposing 6 party’s pleadings[.]” Morgan v. Cnty. of Yolo, 436 F. Supp. 2d 1152, 1154–55 (E.D. Cal. 2006), 7 aff’d, 277 F. App’x 734 (9th Cir. 2008). In reviewing a motion brought under Rule 12(c), the 8 court “must accept all factual allegations in the complaint as true and construe them in the light 9 most favorable to the nonmoving party.” Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). 10 The same legal standard applicable to a Rule 12(b)(6) motion applies to a motion brought 11 under Rule 12(c). See Dworkin v. Hustler Mag., Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). 12 Accordingly, “judgment on the pleadings is properly granted when, taking all the allegations in 13 the non-moving party’s pleadings as true, the moving party is entitled to judgment as a matter of 14 law.” Marshall Naify Revocable Tr. v. United States, 672 F.3d 620, 623 (9th Cir. 2012) (quoting 15 Fajardo v. Cnty. of Los Angeles, 179 F.3d 698, 699 (9th Cir. 1999)); see also Fleming, 581 F.3d 16 at 925 (“judgment on the pleadings is properly granted when there is no issue of material fact in 17 dispute, and the moving party is entitled to judgment as a matter of law”). In considering a 18 motion for judgment on the pleadings, the allegations of the complaint must be accepted as true, 19 while any allegations made by the moving party that contradict the allegations of the complaint 20 are assumed to be false. See MacDonald v. Grace Church Seattle, 457 F.3d 1079, 1081 (9th Cir. 21 2006). The facts are viewed in the light most favorable to the non-moving party and all 22 reasonable inferences are drawn in favor of that party. See Living Designs, Inc. v. E.I. DuPont de 23 Nemours & Co., 431 F.3d 353, 360 (9th Cir. 2005). 24 B. Rule 9(b) — Heightened Pleading Standards 25 “When an entire complaint, or an entire claim within a complaint, is grounded in fraud 26 and its allegations fail to satisfy the heightened pleading requirements of Rule 9(b), a district 27 court may dismiss the complaint or claim.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1107 28 (9th Cir. 2003). Under Rule 9(b), the “circumstances constituting the alleged fraud [must] be 1 specific enough to give defendants notice of its particular misconduct . . . so they can defend 2 against the charge and not just deny that they have done anything wrong.” Kearns v. Ford Motor 3 Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (internal quotation marks omitted) (quoting Bly-Magee 4 v. California, 236 F.3d 1014, 1019 (9th Cir. 2001)). To satisfy the particularity standard of 5 Rule 9(b), “a pleading must identify the who, what, when, where, and how of the misconduct 6 charged, as well as what is false or misleading about the purportedly fraudulent statement, and 7 why it is false.” Moore v. Mars Petcare US, Inc., 966 F.3d 1007, 1019 (9th Cir. 2020) 8 (quotations omitted) (quoting Davidson v. Kimberley-Clark Corp., 889 F.3d 956, 964 (9th Cir. 9 2018)). However, “[m]alice, intent, knowledge and other conditions of a person’s mind may be 10 alleged generally.” Irving Firemen’s Relief & Ret. Fund v. Uber Techs., Inc., 998 F.3d 397, 404 11 (9th Cir. 2021) (quoting Fed. R. Civ. P. 9(b)); see also Klaehn v. Cali Bamboo LLC, No. 21- 12 55738, 2022 WL 1830685, at *2 (9th Cir. 2022)1 (“Under Fed. R. Civ. P. 9(b), a plaintiff must 13 plead circumstances from which a court can plausibly infer the defendant’s knowledge.”). 14 ANALYSIS 15 A. Song-Beverly Claim 16 Defendants move for judgment on the pleadings as to plaintiff’s claim that defendants 17 violated the Song-Beverly Consumer Warranty Act, arguing that plaintiff has failed to allege that 18 the damages to his car were covered under an express or implied warranty. (Doc. No. 13 at 13– 19 14.) Plaintiff appears to concede this point in his opposition brief, stating that, because the relief 20 he seeks is a public injunction,2 he need only allege that defendants failed to maintain sufficient 21 service and repair facilities reasonably close to where their consumer goods are sold or that at 22 such facilities they are unable to repair vehicles within 30 days. (Doc. No. 8 at 11.) That is, 23 1 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 24 36-3(b).

25 2 Because dismissal is required on other grounds, the court does not address or resolve whether a claim for public injunctive relief can be stated under the Song-Beverly Act. See McGill v. 26 Citibank, N.A., 2 Cal. 5th 945, 959 (2017) (noting that public injunctive relief must be made 27 available under the statute pursuant to which the plaintiff is asserting a claim, such as through the CLRA, the UCL, or the false advertising law, for the plaintiff to have standing to bring such a 28 claim). 1 plaintiff argues that he need not allege the existence of a warranty in connection with his breach 2 of warranty claim. Defendants argue in reply that a suit seeking public injunctive relief is 3 nonetheless brought on a plaintiff’s own behalf and that plaintiff must still state a claim himself 4 under the Song-Beverly Act, which plaintiff has failed to do. (See Doc. No. 22 at 9–10.) 5 The Song-Beverly Act requires: 6 (a) Every manufacturer of consumer goods sold in this state and for which the manufacturer has made an express warranty shall: 7 (1)(A) Maintain in this state sufficient service and repair facilities 8 reasonably close to all areas where its consumer goods are sold to carry out the terms of those warranties or designate and authorize in 9 this state as service and repair facilities independent repair or service facilities reasonably close to all areas where its consumer goods are 10 sold to carry out the terms of the warranties. 11 . . . 12 (b) Where those service and repair facilities are maintained in this state and service or repair of the goods is necessary because they do 13 not conform with the applicable express warranties, service and repair shall be commenced within a reasonable time by the 14 manufacturer or its representative in this state. Unless the buyer agrees in writing to the contrary, the goods shall be serviced or 15 repaired so as to conform to the applicable warranties within 30 days. 16 Cal. Civ. Code § 1793.2 (emphasis added). A plaintiff bringing a claim under the Song-Beverly 17 Act must allege that: 18 (1) the product had a defect or nonconformity covered by the express warranty; (2) the product was presented to an authorized 19 representative of the manufacturer for repair; and (3) the manufacturer or its representative did not repair the defect or 20 nonconformity after a reasonable number of repair attempts. 21 Robertson v. Fleetwood Travel Trailers of Cal., Inc., 144 Cal. App. 4th 785, 798–99 (2006). 22 Here, plaintiff has not alleged that the damage his vehicle suffered in an accident was 23 covered by any express or implied warranty. To state a claim under the Song-Beverly Act, 24 plaintiff must allege that the defect or nonconformity that the Subject Vehicle had was covered by 25 an express or implied warranty. See, e.g., Gonzalez v. Drew Indus. Inc., 750 F. Supp. 2d 1061, 26 1073 (C.D. Cal. 2007) (noting that a claim under the Song-Beverly Act requires that “the product 27 had a defect or noncomformity covered by the express warranty . . . .”) (emphasis added); 28 Ruvalcaba v. Hyundai Motor Am., No. 8:22-cv-01244-JWH-JDE, 2024 WL 943946, at *4 (C.D. 1 Cal. Jan. 4, 2024) (holding that the plaintiff failed to state a claim where he failed to allege that a 2 used car was “sold with a manufacturer’s express warranty”); Pineda v. Nissan N. Am., Inc., No. 3 22-cv-239-DMG-JCX, 2022 WL 2920416, at *3 (C.D. Cal. July 25, 2022) (finding that the 4 plaintiff must allege that the defendant failed to conform its vehicle to the express warranty). 5 Plaintiff contends that he need not allege a breach of the warranty to support his breach of 6 warranty claim because by seeking public injunctive relief, the court may consider “future harms 7 to the general public” and it is “obvious by the facts” that a cognizable breach of warranty claim 8 under the Song-Beverly Act is likely to be brought in the future by one of defendants’ customers. 9 (Doc. No. 18 at 11–12.) Indeed, plaintiff’s allegations suggest such a future breach of warranty 10 by defendants as to one of their customers is unacceptably likely. He alleges that defendants only 11 made repairs available to him at a location far from his residence and that defendants provided 12 repair parts only after a delay of several weeks. (Doc. No. 1-2 at ¶¶ 25, 26.) But, as defendants 13 correctly argue, public injunctive relief is merely an available remedy for plaintiffs who can 14 already privately state a claim under a statute which authorizes public injunctive relief. See 15 McGill, 2 Cal. 5th at 959–60. Crucially, the California Supreme Court has clarified that a private 16 plaintiff is not pursuing “representative claims or relief on behalf of others,” because that would 17 “[improperly] authorize private individuals to proceed on behalf of the general public[.]” Id. at 18 959–60 (emphasis omitted); see Cal. Bus. & Prof. Code § 17203; 2004 Cal. Legis. Serv. Prop. 64. 19 Accordingly, the court will grant defendants’ motion for judgment on the pleadings as to 20 plaintiff’s Song-Beverly Act claim. 21 B. False Advertising Law Claim 22 Defendants also move for judgment on the pleadings as to plaintiff’s claim alleging a 23 violation of California’s False Advertising Law (“FAL”), arguing that plaintiff has failed to allege 24 a required affirmative misrepresentation as opposed to a mere omission. (Doc. No. 13 at 16–17.) 25 Plaintiff argues that defendants’ statement that they “strongly recommend” that maintenance on 26 ///// 27 ///// 28 ///// 1 Tesla vehicles be done through their authorized service and repair facilities is an affirmative 2 misrepresentation that suffices to allege a cognizable claim under the FAL. (Doc. No. 18 at 14.)3 3 “A[n] FAL claim is not cognizable when based solely on an omission of material 4 information.” Stewart v. Electrolux Home Prods., Inc., 304 F. Supp. 3d 894, 907 (E.D. Cal. 5 2018). “[W]hen the defendant has not made any statements at all, a plaintiff cannot assert a claim 6 under the FAL. In contrast, a plaintiff may state a claim under the FAL if the defendant actually 7 made a statement, but omitted information that undercuts the veracity of the statement.” Hodsdon 8 v. Mars, Inc., 162 F. Supp. 3d 1016, 1023 (N.D. Cal. 2016). 9 Here, plaintiff’s FAL claim fails as a matter of law because he has failed to allege an 10 affirmative representation made by defendants which was false or misleading. Plaintiff relies on 11 defendants “failing to disclose [their] inability to provide adequate repair facilities” and their 12 recommendation that Tesla customers have their vehicles repaired at an authorized service 13 facility. (Doc. Nos. 1-2 at ¶ 33; 18 at 14.) However, neither of these is an affirmative 14 representation, nor does plaintiff allege a representation that is undercut by the alleged omission 15 or recommendation. Cf. In re Sony Gaming Networks & Customer Data Sec. Breach Litig., 996 16 F. Supp. 2d 942, 990–91 (S.D. Cal. 2014) (denying the defendant’s motion to dismiss where the 17 plaintiff alleged that the defendant’s representation that it would take “reasonable steps” to secure 18 personal information was undercut by omission that network intrusions occurred); see also Sud v. 19 Costco Wholesale Corp., 229 F. Supp. 3d 1075, 1090 (N.D. Cal. 2017) (finding that an FAL 20 claim was based on pure omissions when the claim was centered on messages that did not appear 21 on product packaging). As noted, the court does not consider plaintiff’s new allegations of 22 additional misrepresentations advanced for the first time in his opposition to the pending motion. 23 ///// 24 3 Plaintiff also notes other alleged misrepresentations made by defendant in his opposition to the 25 pending motion to dismiss. (See Doc. No. 18 at 14.) However, the court may not consider these additional allegations in resolving the pending motion to dismiss. Schneider v. Cal. Dept. of 26 Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) (“In determining the propriety of a Rule 12(b)(6) 27 dismissal, a court may not look beyond the complaint . . . , such as [to] a memorandum in opposition to a defendant’s motion to dismiss.”). The court therefore will not consider plaintiff’s 28 new allegations contained in his opposition. 1 Therefore, the court will grant defendants’ pending motion for judgment on the pleadings as to 2 plaintiff’s FAL claim.4 3 C. UCL Claims 4 Finally, defendants move for judgment on the pleadings as to plaintiff’s two UCL claims, 5 one alleging “unfair” business practices and the other alleging “unlawful” business practices. 6 (Doc. No. 13 at 20–23.) California courts employ three different tests in determining whether a 7 business practice is “unfair” under the UCL: the balancing test, the FTC test, and the public 8 policy test. See Roper v. Big Heart Pet Brands, Inc., 510 F. Supp. 3d 903, 919–20 (E.D. Cal. 9 2020). 10 The balancing test determines whether the alleged practice is immoral, unethical, oppressive, unscrupulous, or substantially 11 injurious to consumers and requires the court to weigh the utility of the defendant’s alleged conduct against the gravity of the harm to the 12 alleged victim. Drum v. San Fernando Valley Bar Ass’n, 182 Cal. App. 4th 247, 257 (2010). The FTC test draws on the definition of 13 unfair appearing in § 5 of the Federal Trade Commission Act and requires that: (1) the consumer injury be substantial; (2) the injury 14 must not be outweighed by any countervailing benefits to consumers or competition; and (3) it must be an injury that consumers 15 themselves could not reasonably have avoided. Drum, 182 Cal. App. 4th at 257. Finally, the public policy test requires that the public 16 policy which is a predicate to a consumer unfair competition action under the “unfair” prong of the UCL must be tethered to specific 17 constitutional, statutory, or regulatory provisions. Id. at 256. 18

19 4 Plaintiff also argues that defendants owed a duty to disclose their “lack of adequate repair facilities” as “a violation of law under Song-Beverly[]” actionable under the False Advertising 20 Law. (Doc. No. 18 at 15–16.) The law is marked by “general disarray” on the scope of a defendant’s duty to disclose as actionable under the FAL. In re Toyota RAV4 Hybrid Fuel Tank 21 Litig., 534 F. Supp. 3d 1067, 1101 (N.D. Cal. 2021) (finding that an FAL claim can proceed on the theory of an omission which the defendant was obliged to disclose); see, e.g. Dana v. Hershey 22 Co., 180 F. Supp. 3d 652, 668-69 (N.D. Cal. 2016) (collecting cases and finding that the plain text 23 of the FAL requires an affirmative misrepresentation). The court need not resolve this issue as plaintiff has not alleged that any of the LiMandri factors—at least one of which is required to 24 sufficiently allege that a defendant has a duty to disclose—are satisfied here. See LiMandri v. Judkins, 52 Cal. App. 4th 326 (1997); Hammerling v. Google LLC, 615 F. Supp. 3d 1069, 1085 25 (N.D. Cal. 2022) (noting that the plaintiff must allege the presence of one of the LiMandri factors: that (1) defendant is in a fiduciary relationship with plaintiff; (2) defendant had exclusive 26 knowledge of material facts not known to plaintiff; (3) defendant actively conceals a material fact 27 from plaintiff or (4) defendant makes partial representations but suppresses some material facts). Without alleging the satisfaction of one of those factors, plaintiff cannot state a claim under the 28 FAL for defendants’ breach of a duty to disclose. 1 Roper, 510 F. Supp. 3d at 919–20. Under the “unlawful” prong of the UCL, plaintiff must allege 2 a predicate violation of law. See, e.g., Nacarino v. Chobani, LLC, 668 F. Supp. 3d 881, 891 3 (N.D. Cal. 2022) (“[T]he unlawful prong of the UCL ‘borrows violations of other laws and treats 4 [them] . . . as unlawful practices independently actionable under section 17200 et seq. . . . .”) 5 (citation omitted). Defendant argues that plaintiff has failed to allege facts satisfying the elements 6 of any applicable test under the “unfair” prong of the UCL and that plaintiff cannot successfully 7 plead a claim under the “unlawful” prong since there is no predicate violation that was properly 8 pled. (Doc. No. 13 at 21–22.) Plaintiff appears to argue in his opposition that, because he is 9 seeking public injunctive relief and pleading statutory violations through his Song-Beverly and 10 FAL claims, that all three tests of the “unfair” prong are satisfied and that he has successfully 11 pled a predicate violation of law under the “unlawful” prong of the UCL. (Doc. No. 18 at 18–20.) 12 The balancing test under the “unfair” prong of the UCL requires analyzing “[the business 13 practice’s] impact on its alleged victim, balanced against the reasons, justifications[,] and motives 14 of the alleged wrongdoer. In brief, the court must weigh the utility of the defendant’s conduct 15 against the gravity of the harm to the alleged victim . . . .” Republican Nat’l Comm. v. Google 16 LLC (“RNC”), No. 2:22-cv-0104-DJC-JDP, 2024 WL 3595538, at *10 (E.D. Cal. July 31, 2024) 17 (citation omitted). But here, plaintiff has not alleged “anything regarding the relative weights of 18 defendant’s practice” with respect to maintaining service and repair facilities and the harm caused 19 to the consumer. See Shahbaz v. Arista Networks, Inc., No. 2:24-cv-00431-DAD-SCR, 2024 WL 20 4368253, at *5 (E.D. Cal. Oct. 1, 2024) (“Courts look for whether the harm to the consumer is 21 outweighed by the utility of the defendant’s practice.”) (citing Lozano v. AT & T Wireless Servs., 22 Inc., 504 F.3d 718, 735–36 (9th Cir. 2007)). Therefore, plaintiff has not sufficiently alleged 23 under the UCL that defendants’ practices are unfair under the balancing test. 24 While the parties agree that the FTC test can apply to this action, courts have been divided 25 on the application of it to consumer cases. See, e.g. Lozano, 504 F.3d at 736 (noting that the FTC 26 guidelines are more appropriate for anti-competitive conduct); Epperson v. Gen. Motors, LLC, 27 706 F. Supp. 3d 1031, 1041-42 (S.D. Cal. 2023) (collecting cases). However, even assuming that 28 the FTC test does apply, plaintiff has not alleged the substantiality of the consumer injury or 1 whether there are any countervailing benefits to consumers or corporations. See Camacho v. 2 Auto. Club of S. Cal., 142 Cal. App. 4th 1394, 1403 (2006) (setting out the FTC test as requiring 3 “(1) the consumer injury must be substantial; (2) the injury must not be outweighed by any 4 countervailing benefits to consumers or competition; and (3) it must be an injury that consumers 5 themselves could not reasonably have avoided.”). The court concludes that plaintiff has thus not 6 sufficiently alleged that defendants’ business practices are unfair under the FTC test. 7 As to the public policy or tethering test, plaintiff contends his allegations that defendants 8 violated the FAL and Song-Beverly by not maintaining adequate repair facilities are sufficient to 9 allege unfairness under the UCL. (See Doc. No. 18 at 18–19.) Defendants argue that plaintiff has 10 alleged “no violation of any constitutional, statutory, or regulatory provision[]” and therefore that 11 their conduct is not unfair under the tethering test. (See Doc. No. 13 at 21.) However, the lack of 12 direct violation of a statute is not dispositive to the tethering test. In re Adobe Sys., Inc. Privacy 13 Litig., 66 F. Supp. 3d 1197, 1227 (N.D. Cal. 2014); RNC, No. 2:22-cv-0104-DJC-JDP, at *7 14 (“[T]he conduct does not need to be a direct violation of the law (which would otherwise collapse 15 the unlawful prong into the unfair prong) . . . .”). “To determine whether something is 16 sufficiently ‘tethered’ to a legislative policy for the purposes of the unfair prong, California courts 17 require a close nexus between the challenged act and the legislative policy.” Hodsdon v. Mars, 18 Inc., 891 F.3d 857, 866 (9th Cir. 2018). California courts have repeatedly found that the Song- 19 Beverly Act was intended “to expand consumer protection and remedies” for warranty violations. 20 Daniel v. Ford Motor Co., 806 F.3d 1217, 1223 (9th Cir. 2015). However, as explained above, 21 plaintiff has not alleged any breaches of warranty that the California legislature intended to 22 remedy nor any affirmative misrepresentations that would constitute false advertising. The 23 legislature could have provided broader protections to require that non-warranty repairs have the 24 same protections as warranty repairs do under Song-Beverly, but it did not do so. “‘[The court] 25 decline[s] the invitation to do that which the Legislature has left undone.’” RNC, No. 2:22-cv- 26 0104-DJC-JDP, at *9 (citation omitted). Therefore, the court finds that plaintiff has not alleged 27 sufficient facts to support a claim that defendants’ business practices are unfair under the 28 tethering test. 1 Finally, under the “unlawful” prong of the UCL, because plaintiff has not properly alleged 2 violations of those other laws, he cannot “borrow” those alleged violations and somehow make 3 them actionable under the UCL. See Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th 4 Cir. 2012). Accordingly, the court will grant defendants’ motion for judgment on the pleadings 5 with regard to both of plaintiff’s UCL claims. 6 D. Leave to Amend 7 Courts have the discretion to grant a motion for judgment on the pleadings with leave to 8 amend. Diaz v. Trans Union LLC, No. 1:18-cv-01341-DAD-EPG, 2019 WL 2389937, at *4 9 (E.D. Cal. June 6, 2019) (citing Lonberg v. City of Riverside, 300 F. Supp. 2d 942, 945 (C.D. Cal. 10 2004)). Generally, dismissal without leave to amend is proper only if it is clear that “the 11 complaint could not be saved by any amendment.” Intri-Plex Techs. v. Crest Grp., 499 F.3d 12 1048, 1056 (9th Cir. 2007) (citation omitted); see also Ascon Props., Inc. v. Mobil Oil Co., 866 13 F.2d 1149, 1160 (9th Cir. 1989) (“Leave need not be granted where the amendment of the 14 complaint . . . constitutes an exercise in futility . . . .”). 15 Here, plaintiff has not had the opportunity to amend his complaint and it is not clear that 16 plaintiff is unable to cure the deficiencies of his pleadings in a subsequent amended complaint.5 17 Therefore, the court will grant plaintiff leave to amend his complaint. 18 CONCLUSION 19 For the reasons set forth above: 20 1. The motion for judgment on the pleadings filed by defendants Tesla, Inc. and 21 Tesla Motors, Inc. (Doc. No. 13) is granted as to all claims asserted against them, 22 with leave to amend; and 23 ///// 24 ///// 25 ///// 26

27 5 The court additionally notes that plaintiff has demonstrated some ability to cure the deficiencies identified by alleging additional representations by defendants in his opposition to the pending 28 motion to dismiss. (Doc. No. 18 at 14.) 1 2. Within twenty-one (21) days from the date of entry of this order, plaintiff shall file 2 either a first amended complaint or a notice of his intent not to do so. 3 IT IS SO ORDERED. * | Dated: _ October 24, 2024 Dab A. 2, sxe 5 DALE A. DROZD ‘ UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12