Turnier v. Bed Bath & Beyond Inc.

• Citation: 517 F.Supp.3d 1132
• Decision Date: 05 February 2021
• Docket Number: Case No.: 3:20-cv-00288-L-MSB
• Parties: Robert TURNIER, Plaintiff, v. BED BATH & BEYOND INC., Defendant.
• Court: U.S. District Court — Southern District of California

517 F.Supp.3d 1132

Robert TURNIER, Plaintiff,

v.BED BATH & BEYOND INC., Defendant.

Case No.: 3:20-cv-00288-L-MSB

United States District Court, S.D. California.

Signed February 5, 2021

James T. Hannink, Zachariah Paul Dostart, Dostart Hannink & Coveney LLP, La Jolla, CA, for Plaintiff.

Matthew Jacob Adler, Faegre Drinker Biddle & Reath LLP, San Francisco, CA, Michael Patrick Daly, Pro Hac Vice, Faegre Drinker Biddle & Reath LLP, Philadelphia, PA, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS WITH LEAVE TO AMEND.

M. James Lorenz, United States District Judge

Pending before the Court in this consumer class action is Defendant's motion to dismiss. The Court decides the matter without oral argument. See Civ. L. R. 7.1. For the reasons stated below, Defendant's motion is GRANTED WITH LEAVE TO AMEND .

I. BACKGROUND

Plaintiff filed this action in state court. (See Doc. No. 1). Defendant removed it to federal court. Id. ; see 28 U.S.C. section 1453. The Court has subject matter jurisdiction under 28 U.S.C. section 1332.

Defendant is a New York corporation that markets and sells household merchandise. (Doc. No. 1-2, Complaint ("Compl.") ¶¶ 1 and 3). It sells merchandise in its stores and online. (Id. at ¶ 10). For 29 dollars a year, customers can enroll in Beyond +, which offers them a 20 percent discount on all purchases and free shipping. (Id. at ¶ 16). Beyond + automatically renews. (Id. at ¶¶ 10-17).

In August 2018, Plaintiff purchased an item from Defendant on its website. (Id. at ¶ 10). Although there is no allegation Plaintiff enrolled in Beyond + then, he was charged for it in August 2019. (Id. at ¶¶ 11-12). Plaintiff contends Defendant did not properly disclose that Beyond + would automatically renew each year.

II. LEGAL STANDARD

A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Ashcroft v. Iqbal , 556 U.S. 662, 677-78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks and citation omitted). "A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ " Id. at 678, 129 S.Ct. 1937 (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). The allegations "must be enough to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955.

III. DISCUSSION

Plaintiff alleges four state law claims against Defendant. They all relate to Defendant's purported failure to adequately disclose Beyond +’s automatic renewal term. Defendant moves to dismiss all the claims. The Court will analyze each one separately.

First Claim: California's Automatic Renewal Law ("ARL")

Defendant argues the first claim is subject to dismissal because there is no private cause of action under ARL. (See Doc. No. 7, Motion to Dismiss ("MTD") at 6). Plaintiff, in the opposition, contends the first claim is brought under California's False Advertising Law ("FAL"), not ARL. (See Doc. No. 9, Opposition ("Oppo") at 7). However, the Complaint appears to show the first claim is brought under ARL itself. (Compare Compl. at 11 with 13). The Court therefore DISMISSES the first claim. See Mayron v. Google LLC , 54 Cal. App. 5th 566, 573-74, 269 Cal.Rptr.3d 86 (2020) (there is no private right of action under ARL). The Court GRANTS Plaintiff leave to allege a claim under FAL for the purported ARL violation.

Second Claim: California's Consumer Legal Remedies Act ("CLRA")

Defendant argues there are insufficient factual allegations to support this claim. (See MTD at 7). In general, CLRA prohibits businesses from engaging in certain unlawful acts or practices, which are set forth as subsections under California Civil Code section 1770. Plaintiff contends Defendant violated five subsections. (Compl. ¶ 39).

First, Plaintiff contends Defendant violated subsection (a)(5), which prohibits a business from "representing that goods or services have ... characteristics ... that they do not have." Cal. Civ. Code § 1770(a)(5). Here, the characteristic at issue appears to be Beyond +’s automatic renewal. (See generally Compl.) Yet, Plaintiff does not allege Defendant made a representation to him that Beyond + did not automatically renew. Id.

Nevertheless, if Defendant failed to disclose to Plaintiff that Beyond + would automatically renew, that might itself rise to a violation under subsection (a)(5). See, e.g., Hodsdon v. Mars, Inc. , 891 F.3d 857, 861 (9th Cir. 2018). However, there is no allegation that Defendant failed to disclose the automatic renewal term to Plaintiff prior to finalizing the agreement. (See Compl.) Plaintiff fails to allege a plausible claim under subsection (a)(5).

Second, Plaintiff contends Defendant violated subsection (a)(9), which prohibits a business from "advertising goods or services with intent not to sell them as advertised." Cal. Civ. Code § 1770(a)(9). There are no factual allegations to support a claim under this subsection. Beyond + costs 29 dollars a year. (Compl. ¶ 16). The customers receive 20 percent off all purchases and free standard shipping. Id. Plaintiff does not allege Beyond + did not cost that amount or the benefits were not as advertised. Id. Plaintiff fails to allege a plausible claim under subsection (a)(9).

Third, Plaintiff contends Defendant violated subsection (a)(13), which prohibits a business from "making false or misleading statements of fact concerning reasons for, existence of, or amounts of, price reductions." Cal. Civ. Code § 1770(a)(13). Plaintiff does not allege Defendant reduced or discounted Beyond +’s price—which is the product or service at issue in this case. (See Compl.) It costs 29 dollars a year. (Id. at ¶ 16). Plaintiff fails to allege a plausible claim under subsection (a)(13).¹

Fourth, Plaintiff contends Defendant violated subsection (a)(14), which prohibits a business from "representing that a transaction confers or involves rights, remedies, or obligations that it does not have or involve, or that are prohibited by law." Cal. Civ. Code § 1770(a)(14). It is unclear what factual allegations Plaintiff relies on to support a claim under this subsection. There is nothing to suggest Defendant represented to Plaintiff that it had a right related to Beyond +. (See Compl.) Plaintiff fails to allege a plausible claim under subsection (a)(14).

Lastly, Plaintiff contends Defendant violated subsection (a)(17), which prohibits a business from "representing that the consumer will receive a rebate, discount, or other economic benefit, if the earning of the benefit is contingent on an event to occur subsequent to the consummation of the transaction." Cal. Civ. Code § 1770(a)(17) (emphasis added). Plaintiff does not allege Defendant represented to him that he would receive some discount or other benefit. (See Compl.) To the extent Plaintiff relies on the discounts associated with Beyond + itself (20 percent discount off all purchases), he was able to access that benefit at the same time he purchased Beyond +.(See Compl.) He does not allege he had to purchase (through the automatic renewal) another year to enjoy the benefits during the year he paid for it. Id. Plaintiff fails to allege a plausible claim under subsection (a)(17).

Overall, Plaintiff fails to state a CLRA claim. The Court therefore DISMISSES the second claim. In the amended complaint, if any, Plaintiff should set forth the specific factual allegations that support each CLRA subsection he relies on.

Third Claim: California's Unfair Competition Law ("UCL")

Plaintiff asserts a claim under UCL related to Defendant's purported failure to comply with ARL. (See Compl.) Defendant raises four arguments as to why the Court should dismiss the claim. (See MTD).

1. Whether ARL Applies to Beyond +

First, Defendant argues ARL does not apply to Beyond + because it is not a "subscription," which is what the statutory requirements apply to. (MTD at 9-10).

ARL does not define the term "subscription." See Cal. Bus. & Prof. Code §§ 17601 and 17602. There is also no published California opinion interpreting that term under the statute. The Court must therefore "determine what meaning the state's highest court would give to the law." Bass v. Cty. of Butte , 458 F.3d 978, 981 (9th Cir. 2006). To do that, it must apply California's "rules of statutory interpretation." Id.

Under California law, the "fundamental task ... is to determine the Legislature's intent so as to effectuate the law's purpose." Coal. of Concerned Cmtys., Inc. v. City of L.A. , 34 Cal. 4th 733, 737, 21 Cal.Rptr.3d 676, 101 P.3d 563 (2004) ; see Torres v. Parkhouse Tire Serv., Inc. , 26 Cal. 4th 995, 1003, 111 Cal.Rptr.2d 564, 30 P.3d 57 (2001). The plain meaning of the term normally controls. Coal. of Concerned Cmtys., Inc. , 34 Cal. 4th at 737, 21 Cal.Rptr.3d 676, 101 P.3d 563. But, if there is "more than one reasonable interpretation, courts may consider other aids, such as the statute's purpose, legislative history, and public policy." Id.

Defendant, relying on Webster's Third New International Dictionary , contends "subscription" is defined as the prepayment of publications for a fixed period. (MTD at 9). The term, however, is broader than that.² "Subscription" is also defined as "an arrangement for providing, receiving, or making use of something of a continuing or periodic nature on a prepayment plan." (Oppo at 10) (citing Merriam-Webster ).

Defendant argues the Court should not rely on the second definition because it is from an abridged (i.e. , shortened) dictionary and it was not in use in 2009, when the Legislature drafted ARL. (Doc. No. 11, Reply at 5). But there is nothing to suggest a definition contained in an abridged dictionary is somehow inaccurate. And it was in use at that time. See In re Establishment of Eureka Reporter , 165 Cal. App. 4th 891, 897, 81 Cal.Rptr.3d 497 (2008) ("another definition of ‘subscription’ is an ‘arrangement for providing, receiving, or...