Classick v. Schell & Kampeter, Inc. ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 RICHARD DAVID CLASSICK, JR., No. 2:18-cv-02344-JAM-AC individually and on behalf of 9 all others similarly situated, 10 ORDER DENYING DEFENDANT’S MOTION Plaintiff, TO DISMISS 11 v. 12 SCHELL & KAMPETER, INC. d/b/a 13 DIAMOND PET FOODS, 14 Defendant. 15 16 Richard David Classick, Jr. (“Plaintiff”), the owner of a 17 Blue Nose American Pitbull named Otis, purchased Taste of the 18 Wild® dog food for his loyal companion until he discovered it 19 contains undisclosed levels of heavy metals, BPA, pesticides, 20 acrylamides and regrinds. Plaintiff brought a putative class 21 action against Schell & Kampeter, Inc. d/b/a Diamond Pet Foods 22 (“Defendant”), the company that manufactures, markets, and sells 23 Taste of the Wild® dog food. See Fourth Am. Compl. (“4AC”), ECF 24 No. 67. Defendant moves to dismiss. See Mot. to Dismiss 25 (“Mot.”), ECF No. 70.1 26 27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for April 20, 2021. 1 I. FACTUAL BACKGROUND 2 From approximately 2017 to 2018, Plaintiff purchased Taste 3 of the Wild® Grain Free High Prairie Canine Formula Roasted Bison 4 and Roasted Venison Dry Dog Food from Amazon.com. 4AC ¶ 18. 5 Plaintiff reviewed the nutritional claims and labels displayed on 6 Amazon’s website prior to purchasing the dog food. Id. From 7 what he read on Amazon’s website, Plaintiff believed that he was 8 feeding Otis a premium dog food that was healthy and nutritious. 9 Id. Defendant markets the Taste of the Wild® brand as a 10 “premium” dog food that is as “nature intended” and “based on 11 your pet’s ancestral diet.” See 4AC ¶¶ 27–33. The Taste of the 12 Wild® dog food also purports to use “the best nutrition 13 available” and is “processed under strict human-grade standards 14 to ensure purity.” See 4AC ¶¶ 34–35. 15 What Plaintiff did not know was that the dog food contains 16 some amount of heavy metals (including mercury, lead, arsenic, 17 and cadmium), bisphenol A (“BPA”), pesticides, acrylamide, and 18 regrinds. See 4AC ¶¶ 36–37, 65, 73, 80, 87, 91, 98, 101. That 19 information is not included on the packaging. 4AC ¶ 36. 20 Plaintiff, therefore, alleges that Defendant misleadingly assures 21 consumers that its dog food undergoes stringent testing and 22 quality controls and wrongfully fails to disclose to consumers 23 the presence of contaminants. See 4AC ¶¶ 100, 102, 105. 24 Plaintiff alleges that Defendant’s actions and omissions amount 25 to negligent misrepresentation, violation of the California 26 Consumer Legal Remedies Act (“CLRA”), and breach of the express 27 warranty. See 4AC ¶¶ 174–204. 28 Defendant moves to dismiss the 4AC in its entirety, arguing, 1 among other things, that Plaintiff does not adequately plead 2 actual or reasonable reliance and fails to allege a direct 3 transaction. See generally Mot. Plaintiff opposes the motion. 4 See Opp’n, ECF No. 77. 5 6 II. OPINION 7 A. Request for Judicial Notice 8 Defendant requests that the Court take judicial notice of a 9 copy of the Food and Drug Administration’s (“FDA”) Draft Guidance 10 for Industry #245, Hazard Analysis and Risk-Based Preventive 11 Controls for Food for Animals (Jan. 2018). See Req. for Judicial 12 Notice (“RJN”), ECF No. 71. Plaintiff opposes this request. See 13 Response to RJN, ECF No. 78. Judicial notice under Federal Rule 14 of Evidence 201 permits a court to notice an adjudicative fact 15 that is not subject to reasonable dispute. Khoja v. Orexigen 16 Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018). “A fact 17 is not subject to reasonable dispute if it is generally known, or 18 can be accurately and readily determined from sources whose 19 accuracy cannot reasonably be questioned.” Id. (internal 20 quotation marks and citation omitted). Thus, “a court may take 21 judicial notice of matters of public record without converting a 22 motion to dismiss into a motion for summary judgment.” Id. 23 However, “a court cannot take judicial notice of disputed facts 24 contained in such public records.” Id. 25 “[A] publicly available FDA guidance document, is [] 26 properly subject to judicial notice.” Immanuel Lake v. Zogenix, 27 Inc., 2020 WL 3820424, at *5 (N.D. Cal. 2020). “[C]ourts 28 routinely take judicial notice of [] FDA guidance documents, many 1 of which also appear on the FDA’s public website.” Id. (citing 2 Allen v. ConAgra Foods, Inc., 2018 WL 6460451, at *8 n.6 (N.D. 3 Cal. 2018)). The FDA’s Draft Guidance for Industry #245 is 4 currently accessible on the FDA’s website (specifically, at 5 https://www.fda.gov/regulatory-information/search-fda-guidance- 6 documents/cvm-gfi-245-hazard-analysis-and-risk-based-preventive- 7 controls-food-animals) as of the date of this order. Thus, its 8 “accuracy cannot reasonably be questioned,” making it subject to 9 judicial notice. See Fed. R. Evid. 201(b). 10 Accordingly, Defendant’s request for judicial notice is 11 GRANTED. The Court takes judicial notice of the document’s 12 existence. It does not take judicial notice of any disputed or 13 irrelevant facts within the document. 14 B. Legal Standard 15 Generally, to defeat a Rule 12(b)(6) motion to dismiss, a 16 plaintiff must “plead enough facts to state a claim to relief 17 that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 18 550 U.S. 544, 570 (2007). However, where the claims sound in 19 fraud (as claims of negligent misrepresentation and violations 20 of the CLRA do), they must be pled with particularity pursuant 21 to Rule 9(b). Kearns v. Ford Motor Co., 567 F.3d 1120, 1124–25 22 (9th Cir. 2009). “Averments of fraud must be accompanied by the 23 who, what, when, where, and how of the misconduct charged.” Id. 24 at 1124 (internal quotation marks and citation omitted). Claims 25 of fraudulent omissions, like claims of fraudulent 26 misrepresentations, are subject to Rule 9(b)’s heightened 27 pleading standards. Id. at 1127. Where an omission is alleged, 28 plaintiffs at a minimum must “describe the content of the 1 omission and where the omitted information should or could have 2 been revealed.” Marolda v. Symantec Corp., 672 F.Supp.2d 992, 3 1002 (N.D. Cal. 2009). 4 C. Reasonable Reliance 5 Defendant’s leading argument is that all three of 6 Plaintiff’s claims fail because he has not pled facts supporting 7 actual and reasonable reliance, a necessary element of each. 8 See Mot. at 4–11; Shamsian v. Atlantic Richfield Co., 107 9 Cal.App.4th 967, 983 (2003) (“justifiable reliance on the 10 misrepresentation by the party to whom it was directed” is a 11 necessary element of negligent misrepresentation); Durrell v. 12 Sharp Healthcare, 183 Cal.App.4th 1350, 1366–67 (2010) (under 13 the CLRA, a “misrepresentation is material for a plaintiff only 14 if there is reliance—that is, without the misrepresentation, the 15 plaintiff would not have acted as he did.”); Nickerson v. 16 Goodyear Tire and Rubber Corp., 2020 WL 4937561, at *5 (C.D. 17 Cal. 2020) (for a breach of express warranty claim where the 18 parties are not in privity, “California law requires a showing 19 that a plaintiff relied on an alleged warranty.”). 20 Put another way, Defendant argues that Plaintiff has not 21 satisfied the “reasonable consumer standard,” which requires 22 that Plaintiff “show[s] that members of the public are likely to 23 be deceived.” Williams v. Gerber Prods., 552 F.3d 934, 938 (9th 24 Cir. 2008). This requires more than a mere possibility that 25 Defendant’s marketing “might conceivably be misunderstood by 26 some few consumers viewing it in an unreasonable manner.” 27 Becerra v. Dr Pepper/Seven Up, Inc., 945 F.3d 1225, 1228 (9th 28 Cir. 2019) (internal quotation marks and citation omitted). 1 Instead, it must be probable that “a significant portion of the 2 general consuming public or of targeted consumers, acting 3 reasonably in the circumstances, could be misled.” Id. at 1228– 4 29. Defendant contends that some of the marketing claims 5 Plaintiff identifies are non-actionable puffery; Plaintiff does 6 not allege other claims are inherently false; and Plaintiff has 7 failed to allege a concealment claim with particularity. See 8 Mot. at 5–11. 9 1. Statements at Issue 10 As an initial matter, the Court previously held that 11 Plaintiff’s second amended complaint only alleges reliance on 12 the nutritional claims and labels he saw on the dog food’s 13 packaging and on Amazon.com. See Order Granting in Part and 14 Den. in Part Defs.’ Mot. to Dismiss the Second Am. Compl. 15 (“Order on SAC”) at 11, ECF No. 23. That has not changed. 16 Plaintiff “saw the nutritional claims and labels on the 17 packaging and on the Amazon.com website” and relied on those 18 claims when deciding whether to purchase the dog food. 4AC 19 ¶ 18. As before, there are no allegations that Plaintiff relied 20 on any statements beyond those. Thus, the statements found on 21 Defendant’s website or in other marketing materials are 22 immaterial. See, e.g., 4AC ¶¶ 26–30, 33. Misstatements upon 23 which Plaintiff did not rely cannot support claims sounding in 24 fraud. See, e.g., Durell v. Sharp Healthcare, 183 Cal.App.4th 25 1350, 1363 (2010). 26 With regard to the statements allegedly relied upon from 27 Amazon.com, Plaintiff has not identified what those statements 28 or claims are. The 4AC merely references “statements on 1 Amazon.com.” or “labels, packaging, and advertising on 2 Amazon.com.” See, e.g., 4AC ¶¶ 18, 24, 158, 172, 175–76, 184, 3 193. This is insufficient. Plaintiff has filed four complaints 4 and has yet to identify specific statements from Amazon.com that 5 are separate and apart from the statements on the dog food 6 packaging. Thus, only the alleged affirmative 7 misrepresentations found of Taste of the Wild® packaging will be 8 considered by the Court. Those are limited to the following: 9 • “The balanced diet that nature intended”; 10 • “The best nutrition available today”; and 11 • “Processed under strict human-grade standards to ensure 12 purity,” providing “optimal health and vitality,” 13 supporting “optimal cellular health” and “overall good 14 health,” and helpful in maintaining “the sleek condition of 15 good health.” 16 See 4AC ¶¶ 32, 34–35. 17 2. Non-Actionable Puffery 18 First, Defendant contends that a reasonable consumer would 19 not have relied on the first two claims above—“the balanced diet 20 that nature intended” and “the best nutrition available today”— 21 because they are non-actionable puffery. Mot. at 5–6. “The 22 common theme that [] run[s] through cases considering puffery in 23 a variety of contexts is that consumer reliance will be induced 24 by specific rather than general assertions . . . .” Newcal 25 Indus., Inc. v. Ikon Office Sol., 513 F.3d 1038, 1053 (9th Cir. 26 2008) (internal quotation marks and citation omitted). 27 “Generalized, vague, and unspecific assertions constitute ‘mere 28 puffery’ upon which a reasonable consumer could not rely, and 1 hence are not actionable” under the CLRA. Anunziato v. 2 eMachines, Inc., 402 F.Supp.2d 1133, 1139 (C.D. Cal. 2005). By 3 contrast, “misdescriptions of specific or absolute 4 characteristics of a product are actionable.” Southland Sod 5 Farms v. Stover Seed Co., 108 F.3d 1134, 1145 (9th Cir. 1997). 6 Defendant argues that what “nature intended,” for instance, 7 cannot be objectively tested, see Mot. at 6, but Defendant 8 focuses on the wrong portion of the statement. The statement 9 also claims the dog food will provide a “balanced diet”—and that 10 “is neither objectively true, according to [Plaintiff], nor a 11 subjective opinion about the [product].” Zeiger v. WellPet LLC, 12 304 F.Supp.3d 837, 851 (N.D. Cal. 2018). Plaintiff specifically 13 alleges that the dog food does not provide a balanced diet 14 because it contains heavy metals, pesticides, acrylamide, BPA, 15 and regrinds, all of which are associated with a variety of 16 health risks. The same is true for the claim that the dog food 17 constitutes “the best nutrition available today.” “[This] is a 18 measurable claim that [Plaintiff] seek[s] to prove false through 19 this very suit.” Id. Thus, neither statement is non-actionable 20 puffery. Both support Plaintiff’s claims sounding in fraud. 21 3. Falsity 22 Next, Defendant contends that Plaintiff failed to allege 23 the remaining claims in the third statement above are false, 24 when the reasonable consumer standard requires that Defendant’s 25 conduct be deceptive or misleading. See Mot. at 6–7; see also 26 Gerber Prods., 552 F.3d at 938. However, all but one of the 27 claims Defendant addresses here are not actually at issue. 28 Defendant addresses claims pulled from the photos Plaintiff 1 copied into the 4AC after ¶ 35 (e.g., “developed specifically 2 for dogs,” “antioxidants,” “omega fatty acids,” etc.), but 3 Plaintiff does not specifically challenge those claims. The 4 only claims challenged by Plaintiff from those portions of the 5 dog food packaging are the claims quoted in ¶ 35. The Court 6 need not address Defendant’s arguments over the unchallenged 7 claims. 8 The lone claim that Plaintiff takes issue with in his 4AC, 9 that Defendant argues has not been alleged as false, is the 10 claim that the dog food is “processed under strict human-grade 11 standards to ensure purity.” Again, Defendant focuses on the 12 wrong portion of the claim. Defendant asserts that Plaintiff 13 never alleged the dog food was not “processed under strict 14 human-grade standards,” but conveniently ignores the “to ensure 15 purity.” Mot. at 7. Plaintiff has alleged that the dog food is 16 not pure because it contains harmful heavy metals, pesticides, 17 acrylamide, BPA, and regrinds. Thus, Plaintiff has pled with 18 sufficient particularity “what is false or misleading about a 19 statement, and why it is false.” Vess. Ciba-Geigy Corp. USA, 20 317 F.3d 1097, 1106 (9th Cir. 2003). 21 4. Nondisclosure 22 Finally, Defendant argues that Plaintiff’s claims fail to 23 the extent he alleges to have reasonably relied on a 24 nondisclosure. See Mot. at 7–11. There are four circumstances 25 where a duty to disclose a fact arises: “(1) when the defendant 26 is plaintiff’s fiduciary; (2) when the defendant has exclusive 27 knowledge of material facts not known or reasonably accessible 28 to the plaintiff; (3) when the defendant actively conceals a 1 material fact from the plaintiff; and (4) when the defendant 2 makes partial representations that are misleading because some 3 other material fact has not been disclosed.” Collins v. 4 eMachines, Inc., 202 Cal. App. 4th 249, 255 (2011). 5 Plaintiff does not allege a fiduciary relationship or 6 active concealment. Defendant argues the other two theories 7 fail because Plaintiff cannot have been misled by partial 8 representations that he did not rely upon in purchasing the 9 specific type of dog food and Plaintiff does not present facts 10 supporting his reliance as reasonable. Defendant’s argument 11 about ¶ 35 is without merit. As explained above, Plaintiff does 12 not challenge all the language included in the photos of the dog 13 food packaging copied into the 4AC after ¶ 35. The allegedly 14 misleading claims are specifically quoted by Plaintiff in ¶ 35. 15 Plaintiff does not allege that Defendant falsely claims the dog 16 food contains “real and smoked salmon” as an ingredient of a 17 type dog food he did not purchase for Otis, so Defendant’s 18 defense of that statement is irrelevant. 19 Regarding whether there are sufficient facts in support of 20 reasonable reliance, Defendant understands Plaintiff’s argument 21 to be: (1) a reasonable consumer would not buy the dog food 22 because it poses a material health risk to dogs; and (2) a 23 reasonable consumer would not buy a product that contains even 24 trace amount of the identified contaminants. See Mot. at 8. 25 According to Defendant, Plaintiff has failed to allege that 26 either position is reasonable because he did not plead a 27 material health risk with particularity and a consumer “could 28 not take a zero-tolerance approach.” See Mot. at 8–11. 1 However, both of Defendant’s arguments are premature. Plaintiff 2 alleges the contaminants may be harmful to dogs. See, e.g., 4AC 3 ¶ 6, 39, 81, 142, 148. Plaintiff also includes a table that 4 sets forth the parts per billion of each contaminant found in 5 the dog food he purchased. See 4AC ¶ 101. It is reasonable to 6 believe that consumers would decline to purchase the dog food if 7 they knew it contained any level of contaminants and that those 8 contaminants may be harmful to dogs. 9 Defendant also argues that Plaintiff has not established 10 that the levels of contaminants in its food are unsafe or 11 unhealthy for dogs, see Mot. at 8–10, and that Plaintiff 12 concedes that some levels of contaminants are unavoidable, see 13 Mot. at 10–11. However, these issues are in dispute and are 14 inappropriate for resolution at the motion to dismiss stage.2 15 See WellPet LLC, 304 F.Supp.3d at 852. “Plaintiff[] [has] 16 provided an actionable theory why the [dog food] is unsafe and 17 why the labels are misleading; whether [Plaintiff] can prove 18 [his] theory is a separate question that [the Court] cannot 19 resolve at this stage.” Id. 20 D. Negligent Misrepresentation 21 Defendant makes two additional arguments regarding 22 Plaintiff’s claim of negligent misrepresentation. Defendant 23 argues: (1) the 4AC contains no facts showing Defendant should 24 have known any representation on its dog food packaging was 25 2 The cases cited to by Defendant, where similar claims were defeated, are procedurally and legally inapposite here because 26 they were disposed of at the summary judgment stage. See, e.g., 27 Lucido v. Nestle Purina Petcare Co., 217 F.Supp.3d 1098, 1110 (2016); Simpson v. Champion Petfoods USA, Inc., 397 F.Supp.3d 28 952, 972 (E.D. Ky. 2019). 1 false at the time it was made; and (2) the claim is barred by 2 the economic-loss rule. See Mot. 11–14. Turning first to the 3 economic-loss rule, the Court previously held that it does not 4 bar Plaintiff’s negligent misrepresentation claim because 5 Plaintiff’s claim “sounds far more in fraud than breach of 6 contract or negligence.” Order on SAC at 13–14 (citing Kalitta 7 Air, L.L.C. v. Cent. Tex. Airborne Sys., Inc., 315 F.App’x 603, 8 607 (9th Cir. 2008) (“We hold that California law classifies 9 negligent misrepresentation as a species of fraud for which 10 economic loss is recoverable.”)(internal quotation marks and 11 citations omitted)). Defendant’s somewhat new, but mostly 12 redundant, argument does not affect that finding. 13 Defendant cites to Southern California Gas Leak Cases, 7 14 Cal.5th 391, 400 (2019) in support of the argument that the 15 economic-loss rule applies here. Southern California 16 “concern[ed] a massive, months-long leak from a natural gas 17 storage facility located just outside Los Angeles.” Id. at 394. 18 As a result, the economic-loss rule prevented affected 19 businesses from recovering in negligence against the utility for 20 purely economic losses. Id at 414. The application of the 21 economic-loss rule in Southern California does not persuade this 22 Court that it should reverse its prior holding. As before, the 23 Court finds that the economic loss rule does not require 24 Plaintiff’s negligent misrepresentation claim be dismissed as 25 pled. See Bret Harte Union High Sch. Dist. v. FieldTurf, USA, 26 Inc., 2016 WL 3519294, at *4–5 (E.D. Cal. 2016). 27 As for Defendant’s argument that Plaintiff failed to plead 28 any facts suggesting Defendant reasonably should have known any 1 statements on its packaging were false at the time they were 2 made, that is simply not true. Plaintiff alleges that the 3 claims that the dog food “provides [t]he balanced diet that 4 nature intended” and “[t]he best nutrition available today” 5 suggest that Defendant “properly and sufficiently test[ed]” for 6 heavy metals and other contaminants in their dog food. 4AC 7 ¶¶ 51, 71, 88. In other words: Defendant could not have labeled 8 the dog food as “balanced” and the “best nutrition available 9 today” had it not been conducting thorough testing. And, 10 because Defendant must have been testing the dog food, it should 11 have been aware of the presence of contaminants. 12 Moreover, the claims that Defendant’s dog food is balanced, 13 and provides the best nutrition available today, are the 14 “positive assertion[s]” that Defendant mistakenly argues are 15 missing. See Opp’n at 11 (citing Wilson v. Century 21 Great 16 Western Realty, 15 Cal.App.4th 298, 306 (1993)). Plaintiff 17 claims that this positive assertion (and others) are what led 18 him to reasonably believe that Defendant thoroughly tested its 19 dog food and that the dog food did not contain contaminants that 20 might be harmful to his dog. Whether the packaging claims are 21 in fact misleading—based on, for instance, the alleged testing 22 results and the health risks posed by bioaccumulation—“are 23 disputable facts that may or may not be true; but Plaintiff has 24 sufficiently alleged facts to put Defendant[] on notice of the 25 circumstances giving rise to [his] claims.” Reitman v. Champion 26 Petfoods USA, Inc., 2019 WL 1670718, at *5 (C.D. Cal. 2019). 27 E. CLRA Claim 28 Lastly, Defendant asserts that Plaintiff’s CLRA claim fails 1 because he did not allege a direct transaction and the CLRA 2 “requires direct dealings between the consumer and the 3 defendant.” Mot. at 14–15. Defendant does not say so 4 explicitly, but the Court presumes that Defendant takes issue 5 with the fact that Plaintiff purchased the dog food through 6 Amazon.com, not directly from Defendant. Defendant focus on two 7 cases in support of this proposition. See Schauer v. Mandarin 8 Gems of Cal., Inc., 125 Cal.App.4th 949 (2005); Vega v. CarMax 9 Auto Superstores Cal., LLC, 2018 WL 3216347 (Cal. Ct. App. 2018). 10 Neither are on point. 11 In Schauer, the plaintiff obtained an overvalued engagement 12 ring in her divorce settlement with her ex-husband. 125 13 Cal.App.4th at 953. Her ex-husband had purchased the ring. Id. 14 The court found that the plaintiff did not have a right to sue 15 the jeweler under the CLRA because she was not the purchaser of 16 the ring. Id. at 960. Thus, under the CLRA, she was not the 17 consumer—her ex-husband was. Id. In Vega, the plaintiff’s 18 mother purchased a Ford Mustang for him from CarMax. 2018 WL 19 3216347, at *2. The plaintiff sued CarMax for misrepresenting 20 and concealing facts about the condition of the car. Id. at *3. 21 There, the court also found that plaintiff did not have a right 22 to sue CarMax under the CLRA because he was not the purchaser of 23 the vehicle and, therefore, not the consumer. Id. at *8. 24 Here, Plaintiff is unquestionably the consumer. Plaintiff 25 purchased the dog food. That he purchased it from Amazon.com, 26 and not directly from Defendant, is of no consequence. This 27 Court agrees with the many courts that have held that the CLRA 28 does not require a direct transaction between plaintiffs—the —e——e EE II III RII EE IERIE IGE OIC I EO 1 consumer—and defendants—the manufacturer or producer of the 2 goods. See Johnson v. Nissan North Am., Inc., 272 F.Supp.3d 3 1168, 1184 (N.D. Cal. 2017) (the plaintiff, who purchased her 4 vehicle through CarMax, had a right to sue the car manufacturer 5 under the CLRA); Keilholtz v. Superior Fireplace Co., 2009 WL 6 839076, at *4 (N.D. Cal. 2009) (“Plaintiffs’ allegations that 7 Defendants sold the fireplaces to home builders, who installed 8 them in their homes, resulting in their sale to Plaintiffs, is 9 sufficient to allege that Defendants entered into a transaction 10 | with ‘was intended to result or which result[ed] in the sale’ of 11 goods to a consumer.”) (quoting Cal. Civ. Code § 1770(a)); 12 Chamberlan v. Ford Motor Co., 369 F.Supp.2d 1138, 1144 (N.D. Cal. 13 2005) (“Plaintiffs who purchased used cars have standing to bring 14 CLRA claims, despite the fact that they never entered into a 15 transaction directly with Defendant.”). 16 Plaintiff purchased Defendant’s dog food. He is a consumer 17 with a right to sue under the CLRA. 18 19 Til. ORDER 20 For all the reasons set forth above, the Court DENIES 21 Defendant’s Motion to Dismiss. 22 IT IS SO ORDERED. 23 Dated: May 18, 2021 24 kA 25 teiren staves odermacr 7008 26 27 28 15