Omidi v. Wal-Mart Stores, Inc.

• Court: District Court, S.D. California
• Decided: February 4, 2021
• Docket: 3:14-cv-00857
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 MOJDEH OMIDI and AURORA Case No.: 14cv00857 JAH-BLM TELLERIA, individually and on behalf of 11 others similarly situated, ORDER GRANTING IN PART AND 12 DENYING IN PART DEFENDANTS’ Plaintiff, MOTIONS TO DISMISS 13 v. [Doc. Nos. 59, 60] 14 WAL-MART STORES, INC., A 15 Delaware corporation, et. al., 16 Defendant. 17 18 INTRODUCTION 19 Pending before the Court are Defendant FirstSight Vision Services’ motion to 20 dismiss (Doc. No. 59) and Walmart, Inc.’s motion to dismiss (Doc. No. 60) the Third 21 Amended Complaint (“TAC”) pursuant to Rules 12(b)(6), 9(b) and 12(f) of the Federal 22 Rules of Civil Procedure. Plaintiffs oppose the motions. After a thorough review of the 23 parties’ submissions and for the reasons discussed below, the Court GRANTS in part and 24 DENIES in part Defendants’ motions. 25 LEGAL STANDARDS 26 I. Rule 12(b)(6) 27 Defendants seek dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). 28 Rule 12(b)(6) tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 1 (9th Cir. 2001). Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a 2 cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th 3 Cir. 1984); see Neitzke v. Williams, 490 U.S. 319, 326 (1989) (“Rule 12(b)(6) authorizes a 4 court to dismiss a claim on the basis of a dispositive issue of law.”). Alternatively, a 5 complaint may be dismissed where it presents a cognizable legal theory yet fails to plead 6 essential facts under that theory. Robertson, 749 F.2d at 534. While a plaintiff need not 7 give “detailed factual allegations,” he must plead sufficient facts that, if true, “raise a right 8 to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 9 (2007). 10 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 11 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 12 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 547). A claim is facially plausible 13 when the factual allegations permit “the court to draw the reasonable inference that the 14 defendant is liable for the misconduct alleged.” Id. In other words, “the non-conclusory 15 ‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive 16 of a claim entitling the plaintiff to relief. Moss v. U.S. Secret Service, 572 F.3d 962, 969 17 (9th Cir. 2009). “Determining whether a complaint states a plausible claim for relief will 18 ... be a context-specific task that requires the reviewing court to draw on its judicial 19 experience and common sense.” Iqbal, 556 U.S. at 679. 20 In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the 21 truth of all factual allegations and must construe all inferences from them in the light most 22 favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); 23 Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, legal 24 conclusions need not be taken as true merely because they are cast in the form of factual 25 allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003); Western Mining 26 Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). When ruling on a motion to dismiss, 27 the Court may consider the facts alleged in the complaint, documents attached to the 28 complaint, documents relied upon but not attached to the complaint when authenticity is 1 not contested and matters of which the Court takes judicial notice. Lee v. City of Los 2 Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). If a court determines that a complaint fails 3 to state a claim, the court should grant leave to amend unless it determines that the pleading 4 could not possibly be cured by the allegation of other facts. See Doe v. United States, 58 5 F.3d 494, 497 (9th Cir. 1995). 6 II. Rule 9(b) 7 Under Rule 9(b) of the Federal Rules of Civil Procedure, “[i]n alleging fraud or 8 mistake, a party must state with particularity the circumstances constituting fraud or 9 mistake.” Under Ninth Circuit case law, Rule 9(b) imposes two distinct requirements on 10 complaints alleging fraud. First, the basic notice requirements of Rule 9(b) require 11 complaints pleading fraud to set forth “the who, what, when, where, and how” of the 12 misconduct charged.” Vess v. Ciba-Geigy Corp., U.S.A., 317 F.3d 1097, 1106 (9th Cir. 13 2003); Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997). Second, the rule requires that 14 the complaint “set forth an explanation as to why the statement or omission complained of 15 was false and misleading.” Yourish v. California Amplifier, 191 F.3d 983, 993 (9th Cir. 16 1999). 17 III. 12(f) 18 A party may move to strike from a pleading “an insufficient defense or any 19 redundant, immaterial, impertinent, or scandalous matter.” FED. R. CIV. P. 12(f). “[T]he 20 function of a 12(f) motion to strike is to avoid the expenditure of time and money that must 21 arise from litigating spurious issues by dispensing with those issues prior to trial.” See 22 Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Motions to strike 23 are generally disfavored, unless “it is clear that the matter to be stricken could have no 24 possible bearing on the subject matter of the litigation.” See LeDuc v. Kentucky Central 25 Life Ins. Co., 814 F. Supp. 820, 830 (N.D. Cal. 1992); Cairns v. Franklin Mint Co., 24 26 F. Supp. 2d 1013, 1037 (C.D. Cal. 1998); See also Colaprico v. Sun Microsystems, 758 F. 27 Supp. 1335, 1339 (N.D. Cal. 1991). 28 // 1 DISCUSSION 2 In the TAC, Plaintiffs assert Defendants Walmart and FirstSight engaged in 3 fraudulent and unfair business practices in violation of California’s Business & Professions 4 Code section 17200, engaged in unfair business practices in violation of California Civil 5 Code 1750, et seq, and disseminated false and misleading advertisements throughout the 6 State of California in violation of California’s Business & Professions Code section 17500. 7 Defendant FirstSight argues the TAC is subject to dismissal because Plaintiffs fail 8 to plead their claims with particularity as required by Rule 9(b), Plaintiffs fail to set forth 9 allegations demonstrating a fiduciary or other relationship to support their failure to 10 disclose theory and fail to allege any actual harm from FirstSight’s representations. 11 Defendant Walmart seeks dismissal because Plaintiffs do not allege facts giving rise 12 to a duty to disclose, Plaintiffs’ allegations do not meet the heightened standard of Rule 13 9(b), and the statement “independent doctors of optometry” is not actionable in this case. 14 I. Alleging Fraud with Particularity 15 A. Parties’ Arguments 16 Defendant FirstSight contends Plaintiffs’ allegations impermissibly lump 17 Defendants together and lack the requisite specificity regarding when and how FirstSight’s 18 representations were made to Plaintiffs. Defendant argues Plaintiffs fail to differentiate 19 between Defendants to inform them of their alleged participation in the fraud. Even though 20 they allege FirstSight posted advertisements inside and outside the optometrists’ offices, 21 Defendant argues they do not allege they saw the advertisements inside the optometrist’s 22 office, when they saw the advertisements and what medium the advertisements were in to 23 put FirstSight on sufficient notice of the claims against it. Although collective allegations 24 may be used when the defendants are alleged to have engaged in identical conduct, 25 Defendant argues, here, there are no allegations that they engaged in identical conduct, had 26 a parent-subsidiary relationship or worked in concert. 27 28 1 Additionally, Defendant argues the allegation that Plaintiffs saw in store advertising 2 on multiple trips to Walmart, at a minimum, in the sixth month period preceding and during 3 their June 27, 2012 and July 29, 2012 visits is too imprecise. 4 Plaintiffs argue their allegations that they saw the advertisements in at least the six 5 months prior to and on the day of their examinations satisfy Rule 9(b) because they give 6 Defendant sufficient notice of the claims against it. They further argue the TAC alleges 7 each Defendants’ separate acts. 8 In reply, Defendant FirstSight contends, while there are allegations FirstSight had 9 the right to install signs, there are no allegations that FirstSight did in fact post any signs. 10 Even if Plaintiffs’ allegations that FirstSight either posted or consented to the posting of 11 the signs in the optometrists’ offices were sufficient, Defendant argues Plaintiffs do not 12 allege they saw the signs and relied upon them. 13 Defendant Walmart argues Plaintiffs’ vague assertion that they saw the 14 advertisements, at a minimum, in the sixth months prior to and on the day of their exams 15 is not sufficient to meet the standard of Rule 9(b). Plaintiff argues their allegations that 16 they saw the misrepresentations in at least the six months prior to the date of their respective 17 visits to the optical department in addition to seeing those advertisements on the same day 18 that they visited the optical department and paid for their eye exams is sufficient to notify 19 Defendants of the allegations against them. 20 B. Analysis 21 In the TAC, Plaintiffs allege Walmart leases office space to FirstSight throughout 22 California and FirstSight subleases the space to licensed optometrists to conduct eye exams 23 on the premises through individual agreements designed to provide Walmart and FirstSight 24 control and influence over the individual optometrists’ practices. TAC ¶¶ 22 - 40. They 25 further allege Walmart posted signs and displays throughout the Walmart optical 26 department advertising the availability of eye exams performed by independent doctors. 27 Id. ¶ 41. Additionally, Plaintiffs allege FirstSight controlled the advertising the 28 optometrists posted inside and outside their offices by requiring the optometrists obtain 1 consent prior to posting any signs or advertisements and including a right by FirstSight to 2 post signs in the agreement and they also allege signs advertising eye exams by 3 independent doctors were posted either by FirstSight or with its consent. Id. ¶¶ 42, 43. 4 Plaintiffs allege despite the representations of independent optometrists, the optometrists 5 were subject to Defendants’ control and influence in material ways. Id. ¶ 49. 6 Plaintiffs specifically allege Plaintiff Omidi visited the optical department of 7 Walmart located at 4840 Shawline Street in San Diego, California on or about June 27, 8 2012, and on that day and, “at a minimum, in the six-month period preceding” her visit that 9 day, saw in-store advertising regarding the availability of exams by independent doctors. 10 Id. ¶¶ 50, 51. Based on that representation, Plaintiff believed the doctor was independent 11 and she paid $58 for an eye exam. Id. ¶¶ 53, 54. She alleges the optometrist was under 12 the lease that provided Defendants control over the optometrist’s practice. Id. ¶ 55. 13 Additionally, she alleges she would not have paid for or undergone the exam if she knew 14 it was not provided by an independent doctor and she lost $58 by paying for the exam. Id. 15 ¶¶ 58 - 60. 16 Plaintiffs also allege Plaintiff Telleria visited the optical department at Walmart 17 located at 75 North Broadway in Chula Vista, California on or about July 29, 2012 and on 18 that day and, “[at] a minimum, in the six-month period preceding” the visit that day, saw 19 in-store advertising regarding eye exams performed by independent doctors. Id. ¶¶ 61 - 20 63. Plaintiff alleges she purchased an eye exam for $58 believing it would be provided by 21 an independent doctor after seeing the advertising. Id. ¶¶ 64 - 65. Instead, Plaintiff alleges 22 the optometrist was under the lease which provided Defendants control and influence over 23 materials aspects of the optometrist’s practice. Id. ¶ 66. She alleges she would not have 24 purchased or undergone the exam if she knew the doctor was not independent. Id. ¶¶ 69 - 25 70. 26 Rule 9(b) requires a plaintiff’s allegations of fraud “be specific enough to give 27 defendants notice of the particular misconduct which is alleged to constitute the fraud 28 charged so that they can defend against the charge and not just deny that they have done 1 anything wrong.” Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001) (quoting 2 Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir. 1993)). Both Defendants challenge the 3 adequacy of Plaintiffs’ allegations that they saw Defendants’ advertising “at a minimum, 4 in the six-month period preceding” their visits on June 27, 2012 and July 29, 2012 as too 5 imprecise. Even assuming the six-month period is too imprecise, Plaintiffs also allege 6 they saw the advertisements on the day they each visited the onsite optometrists and 7 provide the specific dates. The Court finds Plaintiffs sufficiently allege when they saw the 8 advertisements to put Defendants on notice of the claims so they may defend against them. 9 Defendant FirstSight also contends Plaintiffs improperly lump Defendants together. 10 “Rule 9(b) does not allow a complaint to merely lump multiple defendants together but 11 ‘require[s] plaintiffs to differentiate their allegations when suing more than one defendant. 12 . .and inform each defendant separately of the allegations surrounding his alleged 13 participation in the fraud.’” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) 14 (quoting Haskin v. R.J. Reynolds Tobacco Co., 995 F.Supp. 1437, 1439 (M.D.Fla.1998). 15 A plaintiff may use collective allegations to describe the actions of multiple defendants 16 where defendants “are alleged to have engaged in precisely the same conduct.” United 17 States v. United Healthcare Ins. Co., 848 F.3d 1161, 1184 (9th Cir. 2016). Plaintiffs allege 18 the tenant optometrists were required to obtain consent from FirstSight before posting signs 19 and advertisements and FirstSight either posted or consented to the signs advertising eye 20 examinations by independent doctors. Plaintiffs sufficiently allege FirstSight’s 21 participation in the conduct. See People v. Toomey, 157 Cal.App.3d 1, 14-15 (1984). 22 Accordingly, Plaintiffs meet the specificity requirements of Rule 9(b) and the 23 motions to dismiss for failure to meet Rule 9(b)’s pleading standard are DENIED. 24 II. Failure to Disclose Theory 25 A. Parties’ Arguments 26 Defendant FirstSight argues the TAC is devoid of any allegations giving rise to a 27 duty to disclose. Defendant maintains Plaintiffs fail to allege any fiduciary or other 28 relationship between the parties to support their failure to disclose theory. Specifically, 1 Defendant maintains the doctor-patient relationship exists between Plaintiffs and the 2 optometrists only and there is no buyer-seller relationship because the eye exams were 3 purchased from the optometrists. 4 Similarly, Defendant Walmart argues Plaintiffs do not allege facts giving rise to a 5 duty to disclose to support their claim for failure to disclose. Defendant contends it did not 6 owe a fiduciary duty because the optometrists, not Walmart performed the eye exams. 7 Defendant maintains Plaintiffs allege they entered into a transaction with Walmart but they 8 allege no facts showing this transaction or relationship. Additionally, Defendant maintains 9 Plaintiffs offer only conclusory allegations of a transaction or relationship which are 10 contradicted by other allegations. 11 Plaintiffs contend they sufficiently allege Defendants had a duty to disclose the 12 optometrists were not independent because they allege Defendants made statements and 13 failed to disclose facts which materially qualify the statements, the facts Defendants failed 14 to disclose are known only to them and are not reasonably discoverable by Plaintiffs and 15 Defendants actively concealed the facts. They further contend Defendants derived benefit 16 and shared monies from the eye exams and, therefore, had a duty to disclose facts. 17 Defendant FirstSight contends, in reply, Plaintiffs’ argument ignores this Court’s 18 finding that the elements Plaintiffs rely on presuppose the existence of some relationship 19 between Plaintiff and Defendant. Defendant maintains Plaintiffs do not plead any type of 20 relationship or transaction in their TAC or address the argument in their opposition. 21 Additionally, FirstSight argues Plaintiffs do not plead any statute or prescriptive law giving 22 rise to a duty. 23 Defendant Walmart argues, in reply, it showed Plaintiffs do not allege any 24 relationship or transaction giving rise to a duty to disclose because their allegations of a 25 fiduciary obligation and transaction between Walmart and Plaintiffs are conclusory and 26 implausible. Defendant maintains Plaintiffs’ opposition does not dispute its argument and, 27 therefore, they concede the allegations do not support any claim. Additionally, Defendants 28 maintain Plaintiffs do not point to any other allegations showing any relationship or 1 transaction with Walmart, but rather, suggest that they do not need to allege a transaction 2 or other relationship with Walmart. Defendant contends this argument ignores the Court’s 3 prior order and is contrary to California law. Defendant argues Plaintiffs fail to allege facts 4 showing a fiduciary or transactional relationship with Walmart, and thus there is no duty 5 of disclosure. 6 B. Analysis 7 Under California law, a cause of action for fraudulent concealment requires an 8 allegation that the defendant owed a duty to disclose the concealed fact. Levine v. Blue 9 Shield of California, 189 Cal.App.4th 1117, 1126–1127 (2010). “There are four 10 circumstances in which a duty to disclose may arise such that nondisclosure or concealment 11 constitutes actionable fraud: (1) when a fiduciary relationship exists between the parties; 12 (2) when the defendant has exclusive knowledge of material facts not known to the 13 plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and 14 (4) when the defendant makes a partial representation to the plaintiff while suppressing 15 other material facts.” LiMandri v. Judkins, 52 Cal.App.4th 326, 336 (1997) (citations 16 omitted). “The first circumstance requires a fiduciary relationship; each of the other three 17 ‘presupposes the existence of some other relationship between the plaintiff and defendant 18 in which a duty to disclose can arise.’” Deteresa v. Am. Broad. Cos., 121 F.3d 460, 467 19 (9th Cir. 1997) (quoting LiMandri, 52 Cal.App.4th at 3363-7). “Such relationships ‘are 20 created by transactions between parties from which a duty to disclose facts material to the 21 transaction arises under certain circumstances.’ Examples are ‘seller and buyer, employer 22 and prospective employee, doctor and patient, or parties entering into any kind of 23 contractual agreement.’” Id. (quoting LiMandri, 52 Cal.App.4th at 337). 24 As noted by both Defendants, Plaintiffs ignore the requirement of a fiduciary or other 25 relationship giving rise to the duty to disclose in their opposition. The TAC alleges 26 Plaintiffs “entered into a transaction with both Defendants who benefited from the monies” 27 paid by Plaintiffs’ to the optometrists for the eye exams when the optometrists shared their 28 proceeds with Defendants. ¶¶ 56, 67. However, the factual allegations that Defendants 1 benefitted from the transaction between Plaintiffs and the optometrists do not show a 2 transaction between Plaintiffs and Defendants giving rise to a duty to disclose. Plaintiffs 3 also allege “Defendants engaged in the practice of optometry by controlling material 4 aspects of their tenant-optometrists’ practices” and therefore owe them a fiduciary duty. 5 ¶¶ 57, 68. The control over the optometrists’ practices provided by the leases did not result 6 in Defendants engaging in the unlicensed practice of medicine. The allegations of the TAC 7 fail to demonstrate Defendants knowingly undertook the obligations of a fiduciary. See 8 Apollo Capital Fund, LLC v. Roth Capital Partners, LLC, 158 Cal.App.4th 226, 246, 9 (2007) (Recognizing imposition of a fiduciary obligation requires a person either 10 knowingly undertakes to act on behalf of and for the benefit of another or enters into a 11 relationship which imposes the duty as a matter of law.). 12 Plaintiffs fail to allege a duty to disclose to support their failure to disclose theory. 13 Accordingly, the motions are GRANTED as to the failure to disclose claims. 14 III. Actual Harm 15 Defendant FirstSight argues Plaintiffs fail to allege any harm resulting from its 16 representations. Defendant argues there are no allegations that the exam each received was 17 worth less than what they paid or less valuable than what they were promised. 18 Plaintiffs maintain Defendant is attempting to rehash an argument resolved by the 19 Ninth Circuit in this case. They argue the TAC alleges both Plaintiffs would not have paid 20 for the eye exams had they known that their respective optometrists were not independent 21 and, therefore, they sufficiently plead an adequate injury related to FirstSight’s 22 representations. 23 In its decision, the Ninth Circuit determined Plaintiffs established standing in this 24 case by asserting they would not have purchased an eye exam if they had known the 25 optometrist was not independent. In the TAC, Plaintiffs specifically allege they would not 26 have paid for the eye exams if they knew the optometrists were not independent. 27 Accordingly, they sufficiently allege harm to support their claims against Defendant 28 FirstSight. The motion to dismiss for failure to allege actual harm is DENIED. 1 IV. Whether the Representation is Actionable 2 Defendant Walmart contends the statement “independent doctors of optometry” is 3 nonactionable puffery in the context of this matter because it is subjective. Defendant 4 maintains Plaintiffs provide no objective standard to evaluate the statement and their 5 standard, not operating under duress or influence that would present a conflict of interest 6 in performing exams and recommending treatments, requires multiple subjective 7 assessments. 8 Plaintiffs contend this argument is not appropriate for ruling on a motion to dismiss, 9 as it is generally a question of fact. Additionally, they maintain a Rule 12(b)(6) motion 10 requires the Court to accept all factual allegations as true and construe the pleadings in 11 Plaintiffs’ favor. They maintain they sufficiently allege that they relied on Defendants’ 12 statement about independent doctors of optometry which is a direct statement about the 13 product or service that Defendant offered. 14 In reply, Defendant contends the Ninth Circuit has specifically held that district 15 courts may properly resolve whether a statement is puffery on a motion to dismiss pursuant 16 Rule 12(b)(6). Defendant argues Plaintiffs offer no factual allegations showing that the 17 sign advertising independent doctors of optometry is actionable and offer no objective basis 18 on which the Court can evaluate whether their doctors were truly “independent.” 19 Defendant maintains Plaintiffs’ allegations confirm their claims turn on multiple subjective 20 assessments and argues Plaintiffs do not and cannot allege that Walmart quantified 21 numerically or made a specific and measurable claim with the sign. 22 Vague, generalized assertions that amount to puffery are not actionable under 23 California’s consumer-protection laws. See Glen Holly Entm’t, Inc. v. Tektronix Inc., 352 24 F.3d 367, 379 (9th Cir. 2003); Peviani v. Natural Balance, Inc., 774 F.Supp.2d 1066, 1072 25 (S.D.Cal. 2011). Whether an alleged misrepresentation is puffery is a legal question that 26 may be resolved on a Rule 12(b)(6) motion. Newcal Indus., Inc. v. Ikon Office Sol., 513 27 F.3d 1038, 1053 (9th Cir. 2008) (citing Cook, Perkiss, & Liehe v. Northern California 28 Collection Service, Inc., 911 F.2d 242, 245 (9th Cir.1990)). A statement that is quantifiable 1 and addresses the specific characteristics of a product may be actionable while a general 2 statement involving a subjective claim about a product is nonactionable puffery. Newcal 3 Indus., 513 F.3d at 1053. 4 The TAC alleges Defendant posted signs throughout Walmart Optical advertising 5 exams by independent doctors of optometry. At least at the pleading stage, the Court finds 6 that a reasonable consumer could rely on the statement advertising the doctors who offices 7 are located within Walmart Optical are independent. Accordingly, the statement is 8 actionable and the motion to dismiss on this basis is DENIED. 9 V. Leave to Amend 10 Both Defendants request dismissal with prejudice. Plaintiffs request leave to amend. 11 Leave to amend a pleading is generally freely granted and is within the discretion of this 12 Court. See Fed. R. Civ. P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962); DCD 13 Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). Moreover, leave to amend 14 should be granted unless the district court “determines that the pleading could not possibly 15 be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 16 2000). Plaintiffs failed to allege facts demonstrating a duty to disclose to support their 17 claims based upon a failure to disclose theory despite this Court’s prior order and the 18 opportunity to amend to cure the deficiency noted. Plaintiffs also ignore the Court’s 19 determination that fraudulent concealment requires a fiduciary or other relationship 20 between the parties. The Court finds this demonstrates Plaintiffs are unable to allege facts 21 to support their failure to disclose theory. Accordingly, the claim is dismissed without 22 leave to amend. 23 CONCLUSION AND ORDER 24 Based on the foregoing, IT IS HEREBY ORDERED: 25 1. Defendant Wal-Mart’s motion to dismiss is GRANTED IN PART AND 26 DENIED IN PART. The motion is GRANTED as to Plaintiffs’ claims based upon a 27 failure to disclose theory. The motion is otherwise DENIED. 28 1 2. Defendant FirstSight’s motion to dismiss is GRANTED IN PART AND 2 || DENIED IN PART. The motion is GRANTED as to Plaintiffs’ claims based upon a 3 || failure to disclose theory. The motion is otherwise DENIED. 4 3. Plaintiffs’ claims based upon a failure to disclose theory are DISMISSED 5 || with prejudice. 6 4. The joint motion to continue the deadline for Defendant Walmart to respond 7 the TAC (Doc. No. 58) is DENIED as moot. 8 || DATED: — February 4, 2021 9 10 JOHN A. HOUSTON 11 JOnited States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28