1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DANIEL DREIFORT, individually, Case No.: 3:18-cv-02393-BTM- and on behalf of all others similarly KSC 12 situated, 13 ORDER GRANTING IN PART Plaintiffs, AND DENYING IN PART 14 v. DEFENDANTS’ MOTION TO 15 DISMISS DJO GLOBAL INC., DJO, LLC,
16 and DOES 1–20, [ECF NO. 6] 17 Defendants. 18 19 Pending before the Court is Defendants’ Motion to Dismiss (ECF No. 6 (“Mot. 20 to Dismiss”)). For the reasons discussed below, the motion is GRANTED IN PART 21 AND DENIED IN PART. 22 I. BACKGROUND 23 Defendants DJO Global, Inc. and DJO, LLC (collectively referred to as 24 “DJO”) manufacture a “thick sole walking boot” (“boot”). (ECF No. 1 (“Compl.”), 25 ¶ 2.) DJO sells the boot “both directly to consumers and also indirectly through 26 prescribing medical intermediaries.” (Id. at ¶¶ 2, 17.) Plaintiff was prescribed “an 27 Aircast boot, manufactured by DJO” to assist with an ankle injury. (Id. at ¶ 13.) 28 The boot’s sole “is approximately 1–2 inches thick,” which creates a “leg length 1 discrepancy” between the leg wearing the boot and the uninjured leg. (Id. at ¶ 2.) 2 After wearing the boot for six days, Plaintiff herniated a disc in his back. (Id. at ¶ 3 15.) He had suffered from the same injury in 2007 and 2013. (Id.) Plaintiff states 4 he was not warned about “the risk for a secondary injury as a result of boot use.” 5 (Id. at ¶ 13.) He also claims that DJO does not warn doctors of these risks and 6 that doctors prescribe boots to patients without warning. (Id. at ¶ 16.) Plaintiff 7 alleges that his secondary injury “is typical among the users of DJO manufactured 8 thick sole boots.” (Id.) 9 DJO also sells “Evenup,” “a product designed to equalize a patient’s healthy 10 limb length and reduce body strain while walking in a cast or walker.” (Id. at ¶¶ 15, 11 49.) When Plaintiff was prescribed the boot, he was not informed about Evenup. 12 (Id. at ¶ 13.) Plaintiff purchased the Evenup after developing the back injury. (Id. 13 at ¶ 15.) He believes that Evenup “would have prevented the back injury, or at 14 least lessened or delayed it.” (Id.) 15 Plaintiff sued DJO for fraud, violations of California business practices law, 16 and product liability. Plaintiff alleges that “[w]alking in the boot causes knee, hip, 17 and back pain,” and permanent injury. (Id. at ¶ 2.) DJO moved to dismiss. (Mot. 18 to Dismiss.) Plaintiff opposes the motion. (ECF No. 7 (“Pl.’s Opp.”).) 19 II. SUBJECT MATTER JURISDICTION 20 The Court begins its analysis by determining whether it has subject matter 21 jurisdiction over this case. “Federal courts are courts of limited jurisdiction.” 22 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Accordingly, 23 the Court must sua sponte dismiss a case over which it does not have jurisdiction. 24 See Fort Bend Cty., Tex. v. Davis, 139 S. Ct. 1843, 1849 (2019). The party 25 asserting federal jurisdiction bears the burden of establishing subject matter 26 jurisdiction. Kokkonen, 511 U.S. at 377. Plaintiff filed his complaint in federal 27 court, so he bears this burden. 28 Plaintiff invokes federal jurisdiction under the Class Action Fairness Act 1 (“CAFA”), 28 U.S.C. § 1332(d)(1). (Compl., ¶ 9.) CAFA extends federal jurisdiction 2 over class action cases that meet certain requirements. Dart Cherokee Basin 3 Operating Co., LLC v. Owens, 574 U.S. 81, 135 S. Ct. 547, 551–52 (2014). Under 4 CAFA, federal courts have jurisdiction over class actions with at least 100 class 5 members and where the amount in controversy exceeds $5 million. 6 § 1332(d)(5)(B); § 1332(d)(2). There must also be minimum diversity between the 7 parties. § 1332(d)(2). Plaintiff states that the “number of Class members is likely 8 in excess of 100” and that the “amount in controversy is likely in excess of $5 9 million.” (Compl., ¶ 9 (emphasis added).) Although Plaintiff does not need to prove 10 these facts prior to discovery, he must still affirmatively allege that they exist — not 11 hypothesize that they are merely “likely.” See Dart Cherokee, 135 S. Ct. at 553 12 (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 276 13 (1977)). Nevertheless, DJO has not challenged the facts Plaintiff alleges to 14 support federal jurisdiction. Accordingly, the Court will reconsider subject matter 15 jurisdiction after discovery. See id. 16 III. RULE 9(B) STANDARD 17 A. Legal Standard 18 A plaintiff who alleges fraud must meet the heightened pleading 19 requirements of Rule 9(b). Under that Rule, a plaintiff “must state with particularity 20 the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). This 21 requires the pleader to “state the time, place, and specific content of the false 22 representations as well as the identities of the parties to the misrepresentation.” 23 Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 24 1986). “Averments of fraud must be accompanied by the who, what, when, where, 25 and how of the misconduct charged.” Kearns v. Ford Motor Co., 567 F.3d 1120, 26 1124 (9th Cir. 2009) (internal quotation marks and citations omitted). Rule 9 exists 27 to give defendants notice of the specific misconduct with which they have been 28 accused. Id. 1 Even if fraud is not a necessary element of a claim, the plaintiff must still 2 comply with Rule 9(b) if he “allege[s] in the complaint that the defendant has 3 engaged in fraudulent conduct.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 4 1103 (9th Cir. 2003). This is true when the plaintiff “allege[s] a unified course of 5 fraudulent conduct and rel[ies] entirely on that course of conduct as the basis of a 6 claim.” Id. This renders the claim “grounded in” or “sounding in” fraud. Id. A claim 7 grounded in fraud must meet the heightened pleading requirements of Rule 9(b). 8 Id. at 1103–04. “Any averments which do not meet that standard should be 9 disregarded or stripped from the claim for failure to satisfy Rule 9(b).” Kearns, 567 10 F.3d at 1124 (internal quotation marks and citations omitted). 11 B. Discussion 12 Plaintiff’s first cause of action is for fraud and thus must meet the heightened 13 pleading standards of Rule 9(b). DJO argues that Plaintiff’s second, third, and 14 fourth causes of action sound in fraud and must also meet the 9(b) standard. (Mot. 15 to Dismiss, 7:27.) DJO contends that these claims are based on the facts 16 underlying Plaintiff’s first cause of action for fraudulent concealment and, 17 separately, incorporate allegations of fraudulent misrepresentation. (Id. at 7:27– 18 8:8.) Under California law, fraudulent conduct requires (1) misrepresentation, (2) 19 knowledge of falsity, (3) intent to defraud or induce reliance, (4) justifiable reliance, 20 and (5) resulting damage. Kearns, 567 F.3d at 1126. The Court finds that 21 Plaintiff’s second, third, and fourth causes of action allege that DJO engaged in a 22 fraudulent course of conduct. See id. at 1125–26. 23 Plaintiff’s second cause of action is under California’s false advertising law 24 (“FAL”), Cal. Bus. & Prof. Code §§ 17500, et seq. Plaintiff claims that DJO (1) 25 “made untrue and misleading representations,” (Compl., ¶ 57), (2) “knew or should 26 have known its false representations were indeed untrue,” (id. at ¶ 59), and (3) 27 “intended to induce members of the public to believe that the product is safe and 28 complete in its current state,” (id. at ¶ 60). Plaintiff pleads his (4) reliance and (5) 1 damages in the complaint. (Id. at ¶¶ 52–54.) This amounts to an allegation that 2 DJO “engaged in a fraudulent course of conduct.” Kearns, 567 F.3d at 1125–26. 3 Plaintiff’s third cause of action is for violation of California’s unfair 4 competitional law (“UCL”), Cal. Bus. & Prof. Code, §§ 17200, et seq. His UCL 5 claim relies on the allegations in the first and second causes of action and pleads 6 no additional facts. (Id. at ¶¶ 63–69.) For the reasons described above, Plaintiff 7 has alleged that DJO engaged in a fraudulent course of conduct here as well. 8 Plaintiff’s fourth cause of action is for violation of California’s Consumer Legal 9 Remedies Act (“CLRA”), Cal. Civ. Code §§ 1750, et seq. In addition to 10 reincorporating all previous allegations in the complaint, Plaintiff adds to the 11 scienter and intent prongs of the fraud analysis. (Id. at ¶¶ 70–80.) He alleges 12 DJO’s affirmative knowledge of its “false and misleading representations.” (Id. at 13 ¶ 76). He contends that DJO “sought to profit” by selling a boot designed to injure 14 customers, who would then subsequently purchase DJO’s other products, such as 15 “surgical implants,” out of medical necessity. (Id. at ¶¶ 76–77.) The scheme 16 Plaintiff sets forth, if true, would amount to a fraudulent course of conduct. The 17 Court finds that the FAL, UCL, and CLRA claims are all grounded in fraud and thus 18 “must satisfy the traditional plausibility standard of Rules 8(a) and 12(b)(6), as well 19 as the heightened pleading requirements of Rule 9(b).” Davidson v. Kimberly– 20 Clark Corp., 889 F.3d 956, 964 (9th Cir. 2018). 21 IV. MOTION TO DISMISS 22 A. Legal Standard 23 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should 24 be granted only where a plaintiff's complaint lacks a “cognizable legal theory” or 25 sufficient facts to support a legal claim. Balistreri v. Pacifica Police Dept., 901 F.2d 26 696, 699 (9th Cir. 1988). When reviewing a motion to dismiss, the allegations of 27 material fact in the plaintiff's complaint are taken as true and construed in the light 28 most favorable to the plaintiff. Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1 1484 (9th Cir. 1995). Dismissal is appropriate only where “the complaint fails to 2 state a claim to relief that is plausible on its face.” Curry v. Yelp Inc., 875 F.3d 3 1219, 1224–25 (9th Cir. 2017) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 4 570 (2007)). 5 The Court also reviews the complaint for compliance with Rule 8. Under this 6 rule, a complaint must include “a short and plain statement of the claim showing 7 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 8 does not 8 require “‘detailed factual allegations,’ but it demands more than an unadorned, the- 9 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 10 678 (2009) (quoting Twombly, 550 U.S. at 555). The rule exists to “give the 11 defendant fair notice of what the claim is and the grounds upon which it rests.” 12 Twombly, 550 U.S. at 555. A pleading must go beyond “labels and conclusions” 13 or “a formulaic recitation of the elements of a cause of action.” Id. A complaint 14 that “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement’” fails to 15 satisfy Rule 8’s pleading standard. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 16 U.S. at 557). 17 B. Discussion 18 Plaintiff has sued under five causes of action. DJO moves to dismiss each 19 of them. 20 1. Fraudulent Concealment 21 Plaintiff’s first cause of action is for fraudulent concealment. (Compl., ¶¶ 30– 22 55; Pl.’s Opp., 8:1–20.) DJO argues that this cause of action fails under Rule 23 12(b)(6) for failure to state a claim and under Rule 9(b) for failure to plead 24 fraudulent conduct with sufficient particularity. (Mot. to Dismiss, 3:22–7:17.) DJO 25 argues that Plaintiff does not state a claim for “either intentional misrepresentation 26 or fraudulent concealment.” (Id. at 3:24–4:1.) Plaintiff clarified in his opposition 27 that he sues under only a concealment theory (Pl.’s Opp., 8:1–2), so the Court 28 does not address DJO’s false representation arguments. DJO also argues that 1 Plaintiff lacks standing to request declaratory relief for this claim. 2 a. Standing for Declaratory Relief 3 For a plaintiff to have Article III standing under the U.S. Constitution, he “must 4 have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged 5 conduct of the defendant, and (3) that is likely to be redressed by a favorable 6 judicial decision.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016). The injury 7 must be “(a) concrete and particularized and (b) actual or imminent, not conjectural 8 or hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). Plaintiff 9 requests declaratory relief on behalf of himself and his proposed class for his 10 fraudulent concealment claim. (Compl., ¶ 55.) Standing for declaratory relief is 11 only available where the plaintiff shows “a very significant possibility of future 12 harm.” San Diego Cty. Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir. 13 1996). Past injury is insufficient to confer standing. Id. 14 Plaintiff argues that he seeks declaratory relief in order to preserve his “claim 15 for bodily injury damages that is otherwise not appropriate for class treatment.” 16 (Pl.’s Opp., 18:7–9.) Under Rule 23, a class action requires common questions of 17 fact among the class members. Fed. R. Civ. P. 23(a)(2). Plaintiff has alleged that 18 DJO boots cause “an abnormal gait,” “hip differential,” and ultimately “secondary 19 pain and injury.” (Compl., ¶ 45.) The supporting evidence he provides, such as a 20 pictorial depiction of “improper alignment due to leg length discrepancy,” (Compl., 21 ¶ 3), a study on leg length discrepancy, (Compl., Exh. C), and DJO customer 22 reviews, (Compl., Exhs. B, D), appears to allege that the thick soles of DJO boots 23 uniformly cause injury to wearers. Injuries due to a common cause meet the Rule 24 23 commonality requirement. In Amchem Products., Inc. v. Windsor, the U.S. 25 Supreme Court denied class certification for asbestos exposure because potential 26 class members had been “exposed to different asbestos-containing products, for 27 different amounts of time, in different ways, and over different periods.” 521 U.S. 28 591, 624 (1997). In contrast, Plaintiff alleges that anyone who wears a thick sole 1 boot, apparently irrespective of the specific model, will suffer secondary injury as 2 a result. It is Plaintiff’s choice whether to pursue his claims individually or in a class 3 action. With respect to declaratory relief, Plaintiff has not demonstrated the 4 requisite possibility of future harm. Accordingly, the motion to dismiss the request 5 for declaratory relief for lack of standing is GRANTED. Plaintiff is GRANTED leave 6 to amend his complaint. The Court considers the remaining arguments made in 7 DJO’s motion to dismiss in the event that Plaintiff seeks other forms of relief. 8 b. Rule 12(b)(6) 9 “The elements of a cause of action for fraud in California are: ‘(a) 10 misrepresentation (false representation, concealment, or nondisclosure); (b) 11 knowledge of falsity (or scienter); (c) intent to defraud, i.e., to induce reliance; (d) 12 justifiable reliance; and (e) resulting damage.’” Kearns, 567 F.3d at 1126 (quoting 13 Engalla v. Permanente Med. Grp., Inc., 15 Cal.4th 951, 974 (1997)). DJO argues 14 that Plaintiff does not allege reliance and thus does not state a claim for fraud. 15 (Mot. to Dismiss, 4:12–18.) 16 The Court considers the remaining elements of fraud before returning to 17 justifiable reliance. First, Plaintiff alleges misrepresentation by concealment. He 18 claims that “DJO actively concealed the potential for harm publishing 19 ‘CONTRAINDICATIONS: NA’ in the manufacturer’s instructions on some boot 20 models” and “actively concealed that their boots cause injury by advertising the 21 boots are clinically proven to provide pain relief and improve healing time. (Compl., 22 ¶¶ 41–42.) Second, Plaintiff pleads DJO’s knowledge of falsity. (Id. at ¶¶ 37–39.) 23 Third, Plaintiff alleges DJO’s intent to defraud. (Id. at ¶ 49.) Finally, Plaintiff pleads 24 resulting damage. (Id. at ¶¶ 53–54.) 25 To allege reliance in a fraudulent concealment claim, a plaintiff “need only 26 prove that, had the omitted information been disclosed, one would have been 27 aware of it and behaved differently.” Mirkin v. Wasserman, 5 Cal. 4th 1082, 1093 28 (1993). DJO argues that Plaintiff does not sufficiently allege reliance because 1 Plaintiff does not claim to have been exposed to any DJO statements prior to using 2 the boot. (Mot. to Dismiss, 7:14–17.) This is the standard for reliance in a 3 fraudulent misrepresentation claim. In re Tobacco II Cases, 46 Cal. 4th 298, 326– 4 28 (2009). But Plaintiff sues under a fraudulent concealment theory and 5 sufficiently alleges reliance under it. He states that if DJO had not “omitted that 6 thick sole boots are dangerous and cause secondary injury or pain,” he “either 7 would not have worn the boot or he would have purchased an Evenup product 8 earlier.” (Compl., ¶¶ 33, 52.) This is sufficient to establish reliance under the Mirkin 9 standard. Plaintiff states a claim for fraudulent concealment. The motion to 10 dismiss the first cause of action under Rule 12(b)(6) is DENIED. 11 c. Rule 9(b) 12 DJO argues that Plaintiff’s fraudulent concealment does not meet Rule 9(b)’s 13 heightened pleading standards. (Id. at 6:13–7:4.) Specifically, DJO finds factual 14 deficiencies in Plaintiff’s allegations of: (1) DJO’s concealment of a design defect 15 in its boots, (2) DJO’s duty to disclose, (3) DJO’s intent to defraud, and (4) Plaintiff’s 16 statement that he would not have worn the boot or would have purchased the 17 Evenup product. (Id. at 6:13–26.) The Court examines each in turn. 18 First, Plaintiff has not satisfied Rule 9(b) in his allegation that DJO concealed 19 a design defect in its boots. Plaintiff describes DJO advertisements with allegedly 20 misleading information about the safety of the boot to support his claim of 21 concealment. (Compl., ¶¶ 31–32; Pl.’s Opp., 8:5–9.) He also states that DJO 22 indicated there were no contraindications for using the boot. (Compl., ¶ 41.) These 23 facts meet the 9(b) standard with respect to concealment. But Plaintiff has failed 24 to plead which boot model or models contain a design defect. As DJO asserts, the 25 complaint contains vague references to a “thick sole walking boot,” “some boot 26 models,” and “all Aircast walking boot models.” (Mot. to Dismiss, 17:14–17 27 (quoting Compl., ¶¶ 1–2, 41, 43–44).) DJO claims that it sells a “wide variety of 28 DJO walking boots.” (Id. at 18:7–8.) Without information about the specific boot 1 model(s) with design defects, the Court must find that Plaintiff has not stated the 2 “what” at issue in this case. See Kearns, 567 F.3d at 1126. The claim thus fails 3 under Rule 9(b). The Court also finds that the current identification of the relevant 4 boot model is vague and confusing under Rule 8.1 5 Second, Plaintiff has not satisfied Rule 9(b) with respect to DJO’s duty to 6 disclose. Concealment constitutes actionable fraud “when the defendant had 7 exclusive knowledge of material facts not known to the plaintiff.” LiMandri v. 8 Judkins, 52 Cal. App. 4th 326, 336 (1997). The duty to disclose “may exist when 9 one party to a transaction” has exclusive knowledge of material facts. Goodman 10 v. Kennedy, 18 Cal. 3d 335, 347 (1976). Plaintiff alleges that DJO had exclusive 11 knowledge of the facts underlying his claim. (Compl., ¶¶ 37–39.) But Plaintiff does 12 not sufficiently plead the existence of any transaction between him and DJO. 13 Plaintiff states he was “prescribed” a DJO boot but does not describe who 14 prescribed the boot to him and how he came to own the boot. (Id. at ¶ 13.) If 15 Plaintiff purchased the boot himself, he has insufficiently plead the details of that 16 transaction. If a medical provider gave him the boot directly, the complaint must 17 state this. Plaintiff has inadequately plead the existence of a transaction between 18 him and DJO that would give rise to DJO’s duty to disclose. This allegation thus 19 fails under Rule 9(b). 20 Third, Plaintiff has sufficiently pled DJO’s intent to defraud. Under Rule 9(b), 21 intent may be alleged generally. Fed. R. Civ. P. 9(b). Finally, the Court finds that 22 Plaintiff satisfies Rule 9(b) with respect to reliance. He states that he either would 23 not have worn the boot at all or would have purchased the Evenup product sooner. 24 (Compl., ¶ 52.) Supporting this contention is the fact that Plaintiff did in fact 25
26 27 1 The Court reserves judgment on DJO’s argument that Plaintiff lacks standing to pursue claims related to boots he never used. (Mot. to Dismiss, 17:12–18:18.) The Court finds that this argument would be better addressed 28 once Plaintiff identifies the relevant boot model and provides information about the purported similarities between 1 purchase the Evenup after wearing the boot for several days. (Compl., ¶ 15.) This 2 allegation suffices under Rule 9(b). 3 Additionally, Plaintiff does not state in his complaint when he sought medical 4 attention for his ankle injury, when he acquired the boot, when he started wearing 5 the boot, and when he suffered the herniated disc injury. Plaintiff’s opposition brief 6 states that the injury took place in 2018. (Pl.’s Opp., 11:13–14.) The Court 7 disagrees with Plaintiff’s contention that the “exact date is immaterial.” (Id.) These 8 facts are all necessary under Rule 9(b). Kearns, 567 F.3d at 1124. When these 9 events occurred is also relevant to the Court’s analysis of the other causes of 10 action Plaintiff has alleged. Plaintiff’s claim fails under Rules 8 and 9(b). 11 Accordingly, the Court DISMISSES this claim WITH LEAVE TO AMEND. 12 2. FAL, UCL, and CLRA 13 Plaintiff’s second, third, and fourth causes of action are for false advertising 14 (“FAL”), Cal. Bus. & Profs. Code §§ 17500, et seq., unfair competition (“UCL”), Cal. 15 Bus. & Prof. Code §§ 17200, et seq., and for relief under the Consumer Legal 16 Remedies Act (“CLRA”), Cal. Civ. Code §§ 1750, et seq., respectively. DJO moves 17 to dismiss each claim for failure to plead statutory standing and failure to meet the 18 Rule 9(b) pleading standard. (Mot. to Dismiss, 7:18–24.) 19 a. Standing 20 DJO claims that Plaintiff has failed to plead standing under these causes of 21 action. (Id. at 8:9–9:21.) Standing requires the Plaintiff “(1) suffered an injury in 22 fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) 23 that is likely to be redressed by a favorable judicial decision.” Spokeo, 136 S. Ct. 24 at 1547. The injury must be “(a) concrete and particularized and (b) actual or 25 imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560. 26 i. FAL and UCL 27 The standing inquiry is identical for FAL and UCL claims. Kwikset Corp. v. 28 Superior Court, 51 Cal. 4th 310, 320–21 (2011). DJO argues that Plaintiff has not 1 pled an injury in fact sufficient to confer standing. (Mot. to Dismiss, 8:13–15, 27– 2 28.) The FAL and UCL limit standing to “any person who has suffered injury in fact 3 and has lost money or property” as a result of the FAL or UCL violation. Kwikset, 4 51 Cal. 4th at 320–21. To meet this requirement, the plaintiff must “(1) establish a 5 loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., 6 economic injury, and (2) show that that economic injury was the result of, i.e., 7 caused by, the unfair business practice or false advertising that is the gravamen 8 of the claim.” Id. at 322. Where the plaintiff sues under a fraud theory, the 9 causation prong must be proved based on reliance, as set forth by In re Tobacco 10 II Cases, 46 Cal. 4th 298 (2009). Kwikset, 51 Cal. 4th at 887–88. In re Tobacco 11 II Cases held that a plaintiff suing under fraudulent misrepresentation “must 12 demonstrate actual reliance on the allegedly deceptive or misleading statements” 13 and “that the misrepresentation was an immediate cause of the injury-producing 14 conduct.” 46 Cal. 4th at 306, 326. In contrast, to show reliance in a fraudulent 15 concealment claim, the plaintiff “need only prove that, had the omitted information 16 been disclosed, one would have been aware of it and behaved differently.” Mirkin, 17 5 Cal. 4th at 1093. 18 First, the Court finds that Plaintiff has sufficiently alleged economic injury. 19 Plaintiff states he had to purchase an additional item (Evenup) in order to make an 20 allegedly incomplete product complete. (Compl., ¶¶ 53, 58, 61.) This expense 21 qualifies as an economic injury. See Aron v. U–Haul Co. of Cal., 143 Cal. App. 4th 22 796, 802–04 (2006) (finding economic injury where the plaintiff was required to 23 purchase excess fuel). Though not pleaded, any economic losses associated with 24 Plaintiff’s herniated disc — such as lost wages or medical expenses — would also 25 qualify as economic injuries. See Kwikset, 51 Cal. 4th at 323. 26 Second, the Court considers whether Plaintiff alleges causation. He claims 27 that “DJO failed to make complete truthful representations which would indicate 28 the product should be used in conjunction with a separate product, Evenup,” which 1 he later purchased. (Compl., ¶ 57; id. at 53.) To the extent that Plaintiff’s claims 2 are grounded in fraudulent concealment, the Court has already determined that he 3 has established reliance. But to the extent that Plaintiff’s claims are rooted in 4 fraudulent misrepresentation, he has not sufficiently pled reliance. As DJO argues, 5 Plaintiff has not claimed that he “saw or was exposed to any advertisements or 6 representations by DJO prior to purchasing or using a DJO boot, much less that 7 he relied upon DJO’s representations.” (Mot. to Dismiss, 9:8–11.) Plaintiff cannot 8 bring any claim rooted in fraudulent misrepresentation if he was never actually 9 influenced by DJO statements. See Tobacco II Cases, 46 Cal. 4th at 328. Plaintiff 10 has pled standing for the FAL and UCL causes of action to the extent that they are 11 grounded in a fraudulent concealment theory. But he has failed to demonstrate 12 standing for these causes of action to the extent that they are grounded in 13 fraudulent misrepresentation. Accordingly, the motion to dismiss for lack of 14 standing is GRANTED IN PART AND DENIED IN PART based on the fraud theory 15 alleged in these claims. 16 ii. CLRA 17 The CLRA states: “Any consumer who suffers any damage as a result of the 18 use or employment by any person of a method, act, or practice declared to be 19 unlawful by Section 1770 may bring an action.” Cal. Civ. Code § 1780. The CLRA 20 prohibits fraudulent misrepresentation and concealment. Id. § 1770(a)(5), (a)(9); 21 Gutierrez v. Carmax Auto Superstores Cal., 19 Cal. App. 5th 1234, 1258 (2018). 22 “[A]ny damage” under the CLRA is not limited to pecuniary damage. Meyer v. 23 Sprint Spectrum L.P., 45 Cal. 4th 634, 640 (2009); see also Hinojos v. Kohl’s Corp., 24 718 F.3d 1098, 1108 (2013). Plaintiff has pled economic damage as described 25 above. 26 For Plaintiff to have standing to bring this fraud-based CLRA claim, he must 27 also plead reliance. The Court refers the parties to its reliance discussion with 28 respect to the FAL and UCL claims. Plaintiff has pled standing for a CLRA claim 1 rooted in fraudulent concealment, but not one based on fraudulent 2 misrepresentation. The motion to dismiss for lack of standing is thus GRANTED 3 IN PART AND DENIED IN PART based on the fraud theory supporting Plaintiff’s 4 CLRA claim. 5 DJO further argues that Plaintiff lacks standing to pursue CLRA penalties 6 available to senior citizens and disabled persons. (Mot. to Dismiss, 10:1–18 (citing 7 Compl., Prayer).) The CLRA sets forth statutory penalties to “[a]ny consumer who 8 is a senior citizen or a disabled person” subject to certain court findings. 9 § 1780(b)(1). A disabled person is one “who has a physical or mental impairment 10 that substantially limits one or more major life activities.” Id. § 1761(g). Plaintiff 11 does not request the penalties available to senior citizens. He seeks only those 12 available to disabled persons. (Compl., Prayer, ¶ 3.) 13 Plaintiff states in the complaint that he herniated a disc in his back after 14 wearing the boot for six days, and that the boot “put him out of commission.” 15 (Compl., ¶ 14.) Plaintiff clarified his standing to pursue CLRA penalties for disabled 16 persons in his opposition to DJO’s motion to dismiss. There, he states that he is 17 “plausibly considered a disabled person,” because he was “out of commission” and 18 “likely not able to walk or work.” (Pl.’s Opp., 15:23–16:2.) Walking and working 19 are major life activities under the CLRA. § 1761(g)(2). But Plaintiff’s uncertain 20 statements do not set forth the facts necessary to deem him a disabled person. 21 Plaintiff should be able to state with certainty whether or not he was able to walk 22 or work while he was “out of commission.” Additionally, Plaintiff has not given any 23 facts indicating that he was employed during the time he was “out of commission.” 24 Plaintiff has not provided the factual basis to establish his standing to pursue 25 penalties reserved for disabled persons. Accordingly, the Court GRANTS the 26 motion to dismiss Plaintiff’s request for these penalties for lack of standing. The 27 Court GRANTS Plaintiff leave to amend his complaint to resolve the factual 28 deficiencies discussed above. 1 iii. Injunctive Relief 2 Finally, DJO argues that Plaintiff lacks standing to request injunctive relief 3 for the FAL, UCL, and CLRA causes of action. (Mot. to Dismiss, 16:22–17:11.) To 4 have standing, the plaintiff “must establish a ‘real and immediate threat of repeated 5 injury.’” Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) 6 (quoting O’Shea v. Littleton, 414 U.S. 488, 496 (1974)). Plaintiff has not alleged 7 that he intends or desires to use DJO boots in the future and thus does not have 8 standing to seek an injunction under any of these claims. See Davidson v. 9 Kimberly–Clark Corp., 889 F.3d 956, 970–71 (9th Cir. 2018); Perez v. Nidek Co., 10 Ltd., 711 F.3d 1109, 1114 (9th Cir. 2013). Restoring credibility between Plaintiff 11 and a third party not in this lawsuit is not a proper ground to confer standing. (See 12 Pl.’s Opp., 19:19–21.) The motion to dismiss Plaintiff’s requests for injunctive relief 13 under these claims is GRANTED WITH LEAVE TO AMEND. 14 b. Rule 9(b) 15 DJO argues that Plaintiff fails to plead the FAL, UCL, and CLRA claims with 16 sufficient particularity. The Court determined above that these claims all sound in 17 fraud and must be reviewed under the Rule 9(b) standard. 18 i. FAL 19 The Court finds that Plaintiff’s FAL claim does not meet the 9(b) standard. 20 As discussed above, Plaintiff has sufficiently pled standing to bring an FAL claim 21 based only on fraudulent omission. The Court reiterates its findings from the first 22 cause of action that the complaint suffers from factual deficiencies with respect to 23 the relevant boot model, how Plaintiff acquired the boot, and when the relevant 24 events took place. Accordingly, the Court DISMISSES the FAL claim WITH 25 LEAVE TO AMEND. 26 ii. UCL 27 The Court finds that Plaintiff’s UCL cause of action is an impermissible 28 shotgun pleading and thus does not meet the 9(b) standard. A “shotgun pleading” 1 is one “that violates Rule 8’s requirement of a ‘short and plain statement’” by 2 “incorporate[ing] each preceding paragraph, regardless of relevancy,” into a cause 3 of action. Destfino v. Kennedy, 2008 WL 4810770, at *3 (E.D. Cal. 2008), aff’d 4 sub. nom., Destfino v. Reiswig, 630 F.3d 952 (9th Cir. 2011); see also Deerpoint 5 Grp., Inc. v. Agrigenix, LLC, 345 F. Supp. 3d 1207, 1239 n.21 (E.D. Cal. 2018) 6 (“Although other paragraphs in the Complaint may indicate ‘fraudulent’ conduct, 7 the shotgun incorporation by reference of literally every prior allegation that 8 preceded the UCL claim is improper and does not meet Rule 8 standards, let alone 9 Rule 9 standards.”). The first paragraph of Plaintiff’s UCL claim “repeats, re- 10 alleges, and incorporates by reference the above allegations as if fully stated 11 herein.” (Compl., ¶ 63.) The remaining paragraphs allege the elements of a UCL 12 claim in a conclusory manner and without any factual support. (See id. at ¶¶ 64– 13 69.) The UCL claim thus fails under Rule 8 and, necessarily, under Rule 9. The 14 Court DISMISSES the UCL claim WITH LEAVE TO AMEND. 15 iii. CLRA 16 The Court finds that Plaintiff’s CLRA claim does not meet the 9(b) standard. 17 Plaintiff has sufficiently pled standing to bring a CLRA claim based only on 18 fraudulent omission. The Court reiterates its findings that the complaint suffers 19 from factual deficiencies with respect to the relevant boot model, how Plaintiff 20 came to own the boot, and when the relevant events took place. See Bardin v. 21 DaimlerChrysler Corp., 136 Cal. App. 4th 1255, 1276 (2006). It thus fails under 22 Rule 9(b). Accordingly, the Court DISMISSES the CLRA claim WITH LEAVE TO 23 AMEND. 24 3. Product Liability 25 Plaintiff’s fifth cause of action is for product liability. A strict products 26 liability claim may be premised on a manufacturing defect, design defect, or failure 27 to warn. Anderson v. Owens-Corning Fiberglas Corp., 53 Cal. 3d 987, 995 (1991). 28 Plaintiff sues under both design defect and failure to warn theories. (Compl., ¶¶ 1 82–85.) DJO moves to dismiss this cause of action for failure to state a claim 2 under Rule 12(b)(6). (Mot. to Dismiss, 11:2–3, 13:12–13.) DJO also argues that 3 Plaintiff lacks standing to seek declaratory relief for this cause of action. (Mot. to 4 Dismiss, 14:22–15:10.) For the reasons set forth in the first cause of action, the 5 motion to dismiss the request for declaratory relief for lack of standing is 6 GRANTED. Plaintiff is GRANTED leave to amend his complaint. 7 a. Design Defect 8 Under California law, two tests identify whether a design defect exists. 9 Anderson, 53 Cal. 3d at 995. The first is the consumer expectations test, which 10 asks “whether the product performed as safely as an ordinary consumer would 11 expect when used in an intended and reasonably foreseeable manner.” Id. The 12 second is the risk-benefit test, which asks “whether on balance the benefits of the 13 challenged design outweighed the risk of danger inherent in the design.” Id. 14 Plaintiff’s does not identify on which test his design defect claim is based. His 15 argument focuses on DJO’s “Aircast Airselect Elite,” a “superior” boot with a 16 “thinner sole” that is a “viable safer alternative” to the boot Plaintiff used. (Compl., 17 ¶ 82.) This allegation does not indicate why the boot’s design was defective. A 18 design that is defective for failure to meet consumer expectations is different from 19 a design that is defective for failing the risk-benefit test. Plaintiff’s current allegation 20 of a design defect is a “bare” and “insufficient legal conclusion” under Rule 8. See 21 Lucas v. City of Visalia, 726 F. Supp. 2d 1149, 1155 (E.D. Cal. 2010) (citing Iqbal, 22 556 U.S. at 677–78). Accordingly, the Court DISMISSES the design defect claim 23 WITH LEAVE TO AMEND. Without knowledge of the applicable design defect 24 test, the Court cannot review DJO’s factual sufficiency argument. DJO may re- 25 raise this argument upon the filing of an amended complaint. 26 b. Failure to Warn 27 Failure to warn may be asserted in a negligence or strict products liability 28 action. Webb v. Special Elec. Co., Inc., 63 Cal. 4th 167, 181 (2016). Plaintiff 1 alleges failure to warn in strict liability. (Compl., 15:23–14, ¶¶ 84–85.) 2 Manufacturers are “strictly liable for injuries caused by their failure to warn of 3 dangers that were known to the scientific community at the time they manufactured 4 and distributed their product.” Johnson v. Am. Standard, Inc., 43 Cal. 4th 56, 64 5 (2008). 6 Plaintiff states that DJO does not warn consumers or prescribing physicians 7 “at all” about the alleged risk of injury from wearing the boot. (Compl., ¶ 84.) DJO 8 rejects this claim. First, DJO raises the learned intermediary doctrine. (Mot. to 9 Dismiss, 11:14–20.) Plaintiff argues, and the Court agrees, that the learned 10 intermediary doctrine does not release DJO from liability. (Pl.’s Opp., 13:24– 11 14:15.) The doctrine does not apply to medical devices “intended to be operated 12 by the patient outside the medical environment.” Bigler-Engler v. Breg, Inc., 7 Cal. 13 App. 5th 276, 319 (2017). A prescription is not required to purchase a boot. 14 (Compl., ¶ 2.) The boot is intended to be operated by the patient without medical 15 assistance. In such a case, the manufacturer’s “duty to warn runs to the patient 16 as well as the medical professional.” Bigler-Engler, 7 Cal. App. 5th at 320. 17 Second, DJO argues that Plaintiff does not allege “whether DJO provided 18 any warnings with the boot Plaintiff used, whether Plaintiff read those warnings, 19 whether or how those warnings were inadequate,” and other related facts. (Mot. 20 to Dismiss, 11:23–26.) A failure to warn claim requires that “either no warning was 21 provided, or that the provided warning was inadequate.” Latiolais v. Merck & Co., 22 Inc., 2007 WL 5861354, at *3 (C.D. Cal. 2007). Plaintiff states that “DJO does not 23 warn consumers at all” and that DJO does not warn prescribing physicians. 24 (Compl., ¶ 84.) Plaintiff has sufficiently pled this element. 25 Third, DJO contends that Plaintiff’s claim fails because “he does not allege 26 that any supposedly inadequate warnings affected his doctor’s decision to use the 27 product or that his physician would have altered use of the product had an 28 adequate warning been provided.” (Mot. to Dismiss, 12:3–7.) A plaintiff asserting 1 failure to warn must establish “that the inadequacy or absence of the warning 2 caused plaintiff’s injury.” Latiolais, 2007 WL 5861354, at *3. Plaintiff thus must 3 allege not only that his doctor would have acted differently if DJO had provided an 4 adequate warning, but also that Plaintiff himself would have behaved differently 5 with such a warning. Plaintiff states that “[p]hysicians, patients, and consumers 6 would take efforts to prevent the harm caused by the boot if they were warned of 7 the potential harm” and that Plaintiff “either would not have worn the boot or he 8 would have purchased an Evenup product earlier.” (Compl., ¶¶ 51–52.) Plaintiff 9 has not alleged any facts regarding his own prescribing physician’s decision- 10 making process. He thus does not state a claim for DJO’s failure to warn his 11 physician. But Plaintiff has sufficiently alleged that DJO failed to warn him directly. 12 Finally, DJO asserts that Plaintiff has not sufficiently alleged DJO’s 13 knowledge. A plaintiff must prove that the purported product risk “was known or 14 knowable in light of the generally recognized and prevailing best scientific and 15 medical knowledge available at the time of manufacture and distribution.” 16 Anderson, 53 Cal. 3d at 1002. Plaintiff references a “Leg Length Discrepancy 17 Study” in his complaint. (Compl., Exh. C.) The study was published in the Elsevier 18 journal in 2017. (Id.) Plaintiff has not sufficiently pled that this single study was 19 “generally recognized” and the “prevailing best scientific medical knowledge 20 available at the time of manufacture and distribution.” Anderson, 53 Cal. 3d at 21 1002. Additionally, Plaintiff’s current complaint does not indicate that this study 22 predated DJO’s manufacture and distribution of the boot or boots at issue. 23 Accordingly, the failure to warn claim is DISMISSED WITH LEAVE TO AMEND. 24 V. CONCLUSION 25 For the foregoing reasons, Defendants’ Motion to Dismiss (ECF No. 6) is 26 GRANTED IN PART AND DENIED IN PART. The Court GRANTS Plaintiff leave 27 to amend his complaint within 21 days of the entry of this order. Defendants shall 28 1 IIfile a response to the present or amended complain within 21 days of the service 2 any amended complaint or the expiration of the 21-day period to amend, 3 || whichever comes first. 4 5 1S SO ORDERED. 6 ||Dated: October 28, 2019 7 Ls Fil Honorable Barry Ted Moskdwitz 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28