1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 WILLIAM RUSHING, et al., Case No. 16-cv-01421-WHO

8 Plaintiffs,

ORDER DENYING DEFENDANTS’

9 v. MOTION FOR SUMMARY

JUDGMENT AND DIRECTING

10 WILLIAMS-SONOMA, INC., et al., DEFENDANTS TO RESPOND TO

PERLIN’S ADMINISTRATIVE

11 Defendants. MOTION TO SEAL

12 Re: Dkt. Nos. 268, 271

13 14 INTRODUCTION 15 Plaintiff Elizabeth Perlin purchased sheets—the PB Classic 400-Thread-Count Sheet Set, 16 to be precise—from defendants Williams-Sonoma, Inc., Williams-Sonoma DTC, Inc., and 17 Williams-Sonoma Advertising, Inc. (collectively, “Williams-Sonoma”) on January 19, 2011, and 18 January 28, 2011. Both sets of sheets ripped shortly after she began using them. Several years 19 later, Perlin learned that, based on some methods used to calculate thread count, the thread count 20 in the PB Classic 400-Thread-Count sheets is allegedly closer to 200 threads. As a result, Perlin 21 contends that Williams-Sonoma misleadingly advertises the thread count of certain bed linens and 22 has brought claims under the Consumer Legal Remedies Act, False Advertising Law, Unfair 23 Competition Law, and unjust enrichment. 24 Although Perlin’s claims are subject to three- and four-year statutes of limitations, she did 25 not file suit until June 5, 2020. The question that I must decide on summary judgment is whether 26 the discovery rule or the fraudulent concealment doctrine may extend the limitations period to 27 allow this litigation. I find that there are genuine issues of material fact concerning whether Perlin 1 Because Perlin has met her burden to show that the discovery rule may apply to toll the statute of 2 limitations, I DENY Williams-Sonoma’s motion for summary judgment. I agree with Williams- 3 Sonoma, however, that Perlin has not established that the doctrine of fraudulent concealment 4 applies. 5 BACKGROUND 6 In January 2011, Elizabeth Perlin decided that she wanted to purchase new sheets. See 7 Deposition Transcript of Elizabeth Perlin (“Perlin Depo. Tr.”) [Dkt. 268-2] at 42:11–18. She 8 specifically wanted soft, luxurious sheets that were high-quality and were “going to last.” Id. at 9 57:5–11. She visited Williams-Sonoma’s Pottery Barn1 website on January 19, 2011, and 10 purchased the Pottery Barn-branded “PB Classic 400-Thread-Count Sheet Set” and “PB Classic 11 400-Thread-Count Extra Pillowcases” (the “PB Classic Bedding”). Id. at 50:11–51:7; Perlin 12 Declaration (“Perlin Decl.”) [Dkt. 272-2] ¶ 2. In the course of deciding whether to buy the PB 13 Classic Bedding, Perlin read and relied upon the website’s product description, which repeatedly 14 claimed that the PB Classic Bedding had a 400-thread count. See Eighth Amended Class Action 15 Complaint (“8AC”) [Dkt. 217] ¶¶ 15, 174–76. 16 To Perlin’s dismay, the PB Classic Bedding were “not as advertised.” Id. ¶ 180. Within a 17 week of using the PB Classic Bedding in a normal and ordinary fashion, she noticed a tear in the 18 bottom fitted sheet. Perlin Depo Tr. at 76:8–24. Because she believed that “she may have done 19 something wrong to cause the rip or that the rip was a fluke,” id. at 82:15–83:4, Perlin decided to 20 buy a replacement set from Williams-Sonoma. On January 28, 2011, nine days after her initial 21 purchase, she purchased a second (identical) set of PB Classic Bedding. Id. at 84:13–21; Perlin 22 Decl. ¶ 5. The second set started ripping after only a short time of regular use, which was “likely 23 less than a year,” although it could have been up to three years. Perlin Depo. Tr. at 98:4–99:16; 24 100:8–13; Perlin Decl. ¶ 5. 25 After the second set of PB Classic Bedding ripped, Perlin compared it to the lower thread 26 count sheets that were on her daughter’s bed. Perlin Decl. ¶ 6. Based on that comparison, she 27 1 concluded that lower thread-count sheets “are more durable” than high thread count sheets. Id. 2 As a result, Perlin, who was “extremely unhappy” with the PB Classic Bedding, has started to 3 purchase “lower thread count sheets in hopes they were more durable.” 8AC ¶ 184. 4 In 2014, Perlin called Williams-Sonoma’s customer service to complain about the PB 5 Classic Bedding and ask for a refund or a replacement set. Perlin Depo. Tr. at 136:21–137:2–5. 6 According to Perlin, she was told that “there was nothing wrong with [the] sheets and denied a 7 refund.” Perlin Decl. ¶ 6. According to Williams-Sonoma’s records, though, the customer service 8 representative told Perlin that “the sheets should not have” ripped. Cardon Decl. Ex. A [Dkt. 268- 9 2] at WSI0016075. 10 PROCEDURAL HISTORY 11 Plaintiff William Rushing filed a putative class action against Williams-Sonoma on 12 January 29, 2016, alleging that Williams-Sonoma deceptively advertised its bedding. [Dkt. 1]. 13 Over the course of the litigation, Rushing, who was a resident of Kentucky, brought claims under 14 the California Consumer Legal Remedies Act (“CLRA”), False Advertising Law (“FAL”), Unfair 15 Competition Law (“UCL”), and unjust enrichment. See October 24, 2018 Order on Pending 16 Motions [Dkt. 170] at 3. On April 10, 2018, Williams-Sonoma moved for summary judgment on 17 the grounds that Rushing lacked standing to pursue these California claims. [Dkt. 119] at 1. On 18 October 24, 2018, I concluded that Kentucky law applied to Rushing’s claims, but granted him 19 leave to conduct pre-certification discovery so that he could attempt to find a named plaintiff who 20 was a resident of California who could pursue the California claims. See Order on Pending 21 Motions at 12, 16–17. Pursuant to my Order, in December 2018 Williams-Sonoma produced a list 22 of California consumers that had purchased the bedding products at issue in this litigation. Cardon 23 Decl. Ex. E [Dkt. 268-2]. Perlin was on that list. Id. 24 In or around December of 2018, Perlin began communicating with one of Rushing’s 25 attorneys, Amber Eck. 2 Over the course of their conversations, Perlin and Eck discussed Perlin’s 26 2 In her deposition, Perlin testified that she spoke to her attorney and learned of her claims “roughly in 27 2018.” See Perlin Depo. Tr. at 74:21-23; 123:1-3; 124:22-24. Perlin’s opposition brief claims that she 1 experiences with the PB Classic Bedding, and Perlin learned that Williams-Sonoma allegedly did 2 not comply with industry standards for advertising thread counts. Perlin Depo. Tr. at 143:25– 3 144:3. Until that point, Perlin was not aware that the PB Classic Bedding that she had purchased 4 was allegedly closer to 200-thread-count. Perlin Decl. ¶ 7. 5 Perlin filed the Eighth Amended Class Action Complaint on June 5, 2020.3 [Dkt. 217]. 6 For the first time, Perlin was alleged as a named plaintiff on behalf of a class of consumers with 7 claims under California law. Id. ¶ 19. 8 On April 18, 2022, Williams-Sonoma moved for summary judgment on the basis that 9 Perlin’s claims were time-barred. Motion for Summary Judgment (“Mot.”) [Dkt. 268-1] at 1. In 10 her opposition brief, Perlin implicitly acknowledged that the statutes of limitations for her claims 11 had lapsed but contended that two exceptions to the statute of limitations—the discovery rule and 12 fraudulent concealment tolling—applied. See Opposition to Motion for Summary Judgment 13 (“Opp.”) [Dkt. 271-3] at 8. I heard oral argument on June 29, 2022. 14 LEGAL STANDARD 15 Summary judgment on a claim or defense is appropriate “if the movant shows that there is 16 no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 17 law.” Fed. R. Civ. P. 56(a). In order to prevail, a party moving for summary judgment must show 18 the absence of a genuine issue of material fact with respect to an essential element of the 19 nonmoving party’s claim, or to a defense on which the non-moving party will bear the burden of 20 persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–323 (1986). Once the movant 21 has made this showing, the burden then shifts to the party opposing summary judgment to identify 22 “specific facts showing there is a genuine issue for trial.” Id. at 324. The party opposing 23

24 discovery letter brief that the parties submitted to Magistrate Judge Sallie Kim, Perlin says that she spoke to 25 Ms. Eck, her attorney, in December 2018, and agreed to represent that class over the course of that conversation. See Joint Discovery Letter Brief [Dkt. 270] at 6, 7–8. Eck submitted a declaration in 26 connection with the previous motion to dismiss briefing that says that she spoke to Perlin in 2019. Declaration of Amber Eck [Dkt. 230-1] ¶ 6. Ultimately, however, because Perlin filed suit in 2020, my 27 analysis regarding the relevant statutes of limitations would not change, regardless of whether the conversation occurred in late 2018 or 2019. 1 summary judgment must then present affirmative evidence from which a jury could return a 2 verdict in that party’s favor. Anderson v. Liberty Lobby, 477 U.S. 242, 257 (1986). 3 The Court draws all reasonable factual inferences in favor of the non-movant. Id. at 255. 4 “Credibility determinations, the weighing of the evidence, and the drawing of legitimate 5 inferences from the facts are jury functions, not those of a judge.” Id. Conclusory and speculative 6 testimony, however, does not raise genuine issues of fact and is insufficient to defeat summary 7 judgment. See Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). 8 Where, as here, a plaintiff contends that the statute of limitations is not a bar based on the 9 discovery rule, the plaintiff bears the burden of proving the applicability of such. See, e.g., V.C. v. 10 Los Angeles Unified Sch. Dist., 139 Cal. App. 4th 499, 516 (2006) (“It is plaintiff’s burden to 11 establish facts showing that he was not negligent in failing to make the discovery sooner and that 12 he had no actual or presumptive knowledge of facts sufficient to put him on inquiry.”) (internal 13 quotation marks and citation omitted). Accordingly, to defeat summary judgment based on the 14 statute of limitations here, Perlin must establish a genuine dispute of material fact with respect to 15 the discovery rule and/or fraudulent concealment. 16 DISCUSSION 17 Williams-Sonoma moves for summary judgment on the basis that all of Perlin’s claims are 18 time-barred and that Perlin has not met her burden to show that a genuine issue of material fact 19 exists with respect to the discovery rule or the doctrine of fraudulent concealment. As discussed 20 below, I find that Williams-Sonoma has met its burden to show that Perlin’s claims are facially 21 time-barred. But I also find that there are genuine issues of material fact as to whether the 22 discovery rule may apply, which would save Perlin’s claims. As a result, summary judgment is 23 not appropriate. 24 I. CALIFORNIA’S STATUTES OF LIMITATIONS 25 “In a federal diversity action brought under state law, the state statute of limitations 26 governs.” Simpson v. Robert Bosch Tool Corp., No. 12-cv-05379-WHO, 2014 WL 985067, at *2 27 (N.D. Cal. Mar. 7, 2014); Wakefield v. Wells Fargo & Co., No. 13-cv-05053-LB, 2014 WL 1 where jurisdiction exists under the Class Action Fairness Act). In California, the statute of 2 limitations is three years for CLRA, FAL, and unjust enrichment claims, and four years for UCL 3 claims. See Cal. Civ. Code § 1783 (CLRA) (“Any action brought under the specific provisions of 4 Section 1770 shall be commenced not more than three years from the date of the commission of 5 such method, act, or practice.”); Cal. Code Civ. P. §§ 338(a), (d) (establishing a three-year statute 6 of limitations for FAL and unjust enrichment claims based on misrepresentations); Cal. Bus. & 7 Prof. Code § 17208 (UCL) (“Any action to enforce any cause of action pursuant to this chapter 8 shall be commenced within four years after the cause of action accrued.”); see also Plumlee v. 9 Pfizer, Inc., No. 13-cv-00414-LHK, 2014 WL 695024, at *7 (N.D. Cal. Feb. 21, 2014) 10 (“Plaintiff’s UCL claim is subject to a four-year statute of limitations . . . and her CLRA and FAL 11 claims are both subject to three-year statutes of limitations.”). 12 “A plaintiff must bring a claim within the limitations period after accrual of the cause of 13 action.” Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 806 (2005) (citing Cal. Code Civ. P. 14 § 312). “Generally speaking, a cause of action accrues at ‘the time when the cause of action is 15 complete with all of its elements.’” Id. (quoting Norgart v. Upjohn Co., 21 Cal. 4th 383, 397 16 (1999)). Those elements consist of wrongdoing, harm, and causation. Aryeh v. Canon Bus. Sols., 17 Inc., 55 Cal. 4th 1185, 1191 (2013). The statute of limitations for a UCL, FAL, or CLRA claim 18 “accrues when a defendant misrepresents or omits material information regarding a product or 19 service and a consumer makes a purchase as a result of such deceptive practices.” Plumlee, 2014 20 WL 695024, at *7; see also Ries v. Arizona Beverages USA LLC, 287 F.R.D. 523, 534 (N.D. Cal. 21 2012) (finding that plaintiff’s claims under the CLRA and FAL accrued, and limitations period 22 began to run, when consumer purchased allegedly mislabeled iced tea). 23 Perlin viewed the allegedly deceptive advertising and purchased the PB Classic Bedding 24 on January 19, 2011, and January 28, 2011. Perlin Decl. ¶¶ 2–3, 5. Given that she filed this 25 lawsuit on June 5, 2020, almost a decade after her purchases, her claims will be time-barred unless 26 she can show that an exception to the statutes of limitations applies. 27 1 II. THE DISCOVERY RULE 2 “An important exception to the general rule of accrual is the discovery rule, which 3 postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the 4 cause of action.” Fox, 35 Cal. 4th at 807 (internal quotation omitted). In other words, the 5 discovery rule “protects those who are ignorant of their cause of action through no fault of their 6 own” by delaying accrual until “a plaintiff knew or should have known of the wrongful conduct at 7 issue.” Apr. Enter., Inc. v. KTTV, 147 Cal. App. 3d 805, 832 (1983). 8 To invoke the discovery rule, a plaintiff must show (1) the time and manner of discovery 9 and (2) the inability to have made earlier discovery despite reasonable diligence. Fox, 35 Cal. 4th 10 at 808. The plaintiff has the burden to “show diligence.” Id. “Under the discovery rule, the 11 statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was 12 caused by wrongdoing.” Jolly v. Eli Lilly & Co., 44 Cal.3d 1103, 1110 (1988); see also Norgart, 13 21 Cal. 4th at 397–98 (“[T]he plaintiff discovers the cause of action when he at least suspects a 14 factual basis, as opposed to a legal theory, for its elements, even if he lacks knowledge 15 thereof . . .”). The rule “mak[es] accrual of a cause of action contingent on when a party 16 discovered or should have discovered that his or her injury had a wrongful cause.” Fox, 35 Cal. 17 4th at 808 (emphasis in original). Within the applicable limitations period, a plaintiff must seek to 18 learn the facts necessary to bring the cause of action in the first place—he cannot sit on his rights 19 and wait for the facts to find him. Norgart, 21 Cal. 4th at 398. 20 Normally, whether a plaintiff has inquiry notice of potential wrongdoing is a factual 21 question for the jury. Ward v. Westinghouse Canada, Inc., 32 F.3d 1405, 1408 (9th Cir. 1994); 22 see also Ovando v. Cnty. of Los Angeles, 159 Cal. App. 4th 42, 61 (2008) (“The question when a 23 plaintiff actually discovered or reasonably should have discovered the facts for purposes of the 24 delayed discovery rule is a question of fact unless the evidence can support only one reasonable 25 conclusion.”). 26 a. There Are Genuine Questions of Fact as to When Perlin Had Notice of Her Injury. 27 1 manner in which she discovered her claims, i.e., the point in which she “suspected, or should have 2 suspected, that she had been wronged.” Jolly, 44 Cal. 3d at 1114. This is because, “under the 3 discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect 4 that her injury was caused by wrongdoing, that someone had done something to her.” Id. at 1110. 5 Perlin and Williams-Sonoma have different conceptions of when Perlin had or reasonably 6 should have had notice that she had been “wronged.” Williams-Sonoma maintains that Perlin was 7 on inquiry notice in 2011 because both sets of PB Classic Bedding ripped shortly after use. Mot. 8 at 11. From Williams-Sonoma’s perspective, “the ripping of a second set of identical bedding— 9 bedding purchased because the consumer believed it was high-quality and durable, that was cared 10 for according to the care instructions, and that was used in normal conditions—constitutes 11 information sufficient to lead a reasonable person to at least suspect that something wrong has 12 been done to her.” Id. at 12. Perlin, on the other hand, argues that her claims did not accrue under 13 the discovery rule until she knew or had reason to know that Williams-Sonoma misrepresented the 14 thread count, which, according to Perlin, occurred in late 2018 or 2019. Opp. at 2, 9. 15 Williams-Sonoma is correct that inquiry notice is triggered by a “suspicion of 16 wrongdoing,” Jolly, 44 Cal. 3d at 1111, and does not require the plaintiff to understand “the 17 specific causal mechanism by which he or she has been injured.” Knowles v. Superior Ct., 118 18 Cal. App. 4th 1290, 1298 (2004). But the problem with Williams-Sonoma’s theory regarding 19 notice is that the injury of the ripped PB Classic Bedding is not the injury at the heart of Perlin’s 20 claims. Perlin’s injury flows from Williams-Sonoma’s allegedly false advertising of the PB 21 Classic Bedding, not the ripping of the sheets. As Perlin explains, her “injury was that she was 22 promised 400 thread count sheets but received 200 thread count sheets, not that she did not receive 23 high-quality sheets.” Opp. at 10. She further points out that durability and quality are not 24 elements of her claims, and “there is no evidence the sheets ripped because they had a low thread 25 count or even that low thread count sheets are more likely to rip.” Id. at 11. In sum, according to 26 Perlin, because the rips are “wholly unrelated” to her claims, she had “no reason to believe 27 Defendants had misrepresented the thread count.” Id. 1 different types of claims—even claims that are related—where the plaintiff did not have any 2 reason to suspect the second type of claim. In Fox, the plaintiff filed a medical malpractice action 3 after a gastric bypass surgery resulted in severe complications. 35 Cal. 4th at 802. In the course 4 of discovery, Fox learned that a medical device used during the surgery may have malfunctioned, 5 causing her injury. Id. Fox then amended her complaint to add a products liability cause of action 6 against the device manufacturer. Id. at 802–03. The device manufacturer argued that the products 7 liability claim was time-barred and that the discovery rule did not apply. Id. at 803. Fox held that 8 the discovery rule applied to delay accrual of the product liability claim because plaintiff’s 9 product-liability cause of action was caused by “tortious conduct of a wholly different sort” than 10 plaintiff’s medical malpractice claim. As Fox explained, “if a plaintiff’s reasonable and diligent 11 investigation discloses only one kind of wrongdoing when the injury was actually caused by 12 tortious conduct of a wholly different sort, the discovery rule postpones accrual of the statute of 13 limitations on the newly discovered claim.” Id. Fox thus supports Perlin’s argument that the 14 discovery rule delays accrual of a claim based on “tortious conduct of a wholly different sort”— 15 here, the alleged false advertising regarding the thread-count of the PB Classic Bedding—where 16 Perlin would not have reasonably been aware of that injury. 17 Perlin has put forward evidence to support her theory that she had no reason to suspect that 18 the advertised thread counts were misrepresented in 2011. After both sets of PB Classic Bedding 19 ripped, Perlin compared these sheets to the lower-thread count sheets and concluded that lower 20 thread-count sheets were more durable than high thread count sheets. Perlin Decl. ¶ 6. According 21 to Perlin’s textile expert, an average consumer would not be able to determine the thread count of 22 a sheet by feel or sight. See Declaration of Jennifer Rhodes (“Rhodes Decl.”) [Dkt. 272-3] ¶ 3. 23 And according to Perlin, when she called Williams-Sonoma to complain about the ripped sheets, 24 she was told that “there was nothing wrong with [them].” Perlin Decl. ¶ 6. From Perlin’s 25 perspective, she had no reason to believe the thread count was misrepresented until she spoke to 26 her attorney in late 2018. Perlin Decl. ¶ 7. 27 Williams-Sonoma responds with evidence purporting to show that Perlin associated the 1 that when Perlin called to complain about the ripped sheets in 2014, Perlin argued that the bedding 2 should have held up longer based on the advertised thread count. Cardon Decl. Ex. B [Dkt. 268-2] 3 at WSI0016080. Williams-Sonoma also cites portions of Perlin’s deposition testimony where she 4 testified that a higher thread count meant that there would be a corresponding increase in 5 durability. Reply [Dkt. 273] at 6. From Williams-Sonoma’s perspective, that evidence shows 6 that Perlin “drew a connection between the PB Classic Bedding’s advertised thread count and its 7 durability” so that she was or reasonably should have been on inquiry notice. Id. at 7. 8 I find that there are genuine issues of material fact whether Perlin had or should have had 9 inquiry notice of her claims before she spoke to her attorney in or around December 2018. “The 10 question when a plaintiff actually discovered or reasonably should have discovered the facts for 11 purposes of the delayed discovery rule is a question of fact unless the evidence can support only 12 one reasonable conclusion.” Eidson v. Medtronic, Inc., 40 F. Supp. 3d 1202, 1218 (N.D. Cal. 13 2014) (quoting Ovando, 159 Cal. App. 4th at 61)). Because there are genuine questions of fact 14 whether the ripping of the PB Classic Bedding would have put Perlin or a reasonable person on 15 notice that the thread-count had been misrepresented, Perlin has met her burden to show that the 16 first prong of the discovery rule has been met. 17 b. There Are Genuine Questions of Fact as to Whether Perlin Conducted a Reasonable Investigation into Her Claims. 18 The second prong of the discovery rule requires Perlin to show that she was unable to 19 make earlier discovery of her claims despite reasonable diligence. Fox, 35 Cal. 4th at 808. She 20 must show that she “conduct[ed] a reasonable investigation after becoming aware of [the] injury 21 [].” Id. (emphasis added). 22 The parties’ arguments about whether Perlin conducted a reasonable investigation flow 23 directly from their opposing positions regarding when she had inquiry notice. Because she 24 contends that she was not aware of her injury until she spoke to her attorney in December 2018, 25 from Perlin’s perspective her duty to conduct a reasonable investigation did not arise until after 26 that conversation. Opp. at 11 (explaining that the ripping of the sheets was a different “type of 27 1 maintains that Perlin had inquiry notice back in 2011 and failed to conduct a reasonable 2 investigation at that point. Mot. at 14; Reply at 7–11. In support of its theory that Perlin failed to 3 conduct a reasonable investigation into the thread-count of the PB Classic Bedding, Williams- 4 Sonoma notes that she did not have the bedding tested (as Rushing did), nor did she purchase a 5 device designed to count threads, nor did she watch a YouTube video explaining how to count 6 threads. Reply at 10 & 10 n.10. It also points out that there are publicly available documents 7 from 2003 raising “virtually identical allegations” against Williams-Sonoma for its advertised 8 thread counts. Id. at 11. 9 Williams-Sonoma’s arguments are grounded in the premise that Perlin had reason to 10 suspect that her sheets were of a lower thread-count prior to 2018. Because I have concluded that 11 there are disputed questions of fact whether Perlin had inquiry notice of her claims prior to 2018, I 12 find that there are also questions of fact whether Perlin conducted a reasonable investigation into 13 her claims. 14 In sum, Perlin met her burden to show that there are genuine issues of fact whether she 15 reasonably should have discovered her claims prior to 2018. As a result, the discovery rule may 16 apply to postpone the accrual of her claims. I therefore DENY Williams-Sonoma’s motion for 17 summary judgment on the basis that her claims are time-barred. 18 III. THE FRAUDULENT CONCEALMENT EXCEPTION 19 In addition to the discovery rule, Perlin also argues that the fraudulent concealment 20 exception applies to toll the statutes of limitations. I disagree. She has not met her burden to 21 show Williams-Sonoma affirmatively committed acts to prevent her from filing suit in time. As a 22 result, I find that the doctrine of fraudulent concealment does not apply. 23 “A close cousin of the discovery rule is the well accepted principle of . . . fraudulent 24 concealment.” Bernson v. Browning-Ferris Indus. of Cal., Inc., 7 Cal. 4th 926, 931 (1994) 25 (internal quotation and citation omitted) (alteration in original). “It has long been established that 26 the defendant’s fraud in concealing a cause of action against him tolls the applicable statute of 27 limitations, but only for that period during which the claim is undiscovered by plaintiff or until 1 it.” Id. (internal citation omitted). 2 To establish that the fraudulent concealment doctrine tolls the statute of limitations, a 3 plaintiff must show that: (1) “the defendant took affirmative acts to mislead the plaintiff”; (2) “the 4 plaintiff did not have ‘actual or constructive knowledge of the facts giving rise to [her] claim’ as a 5 result of the defendant’s affirmative acts”; and (3) “plaintiff acted diligently in trying to uncover 6 the facts giving rise to [her] claim.” Garrison v. Oracle Corp., 159 F. Supp. 3d 1044, 1073 (N.D. 7 Cal. 2016) (quoting Hexcel Corp. v. Ineos Polymers, Inc., 681 F.3d 1055, 1060 (9th Cir. 2012)). 8 Importantly, the factual basis for fraudulent concealment must be distinct from a cause of 9 action. “Fraudulent concealment necessarily requires active conduct by a defendant, above and 10 beyond the wrongdoing upon which the plaintiff's claim is filed, to prevent the plaintiff from suing 11 in time.” De Los Reyes v. Ruchman & Assocs., Inc., No. 14-cv-00534-WHO, 2014 WL 4354238, 12 at *5 (N.D. Cal. Sept. 2, 2014) (quoting Johnson v. Henderson, 314 F.3d 409, 414 (9th Cir. 13 2002)). Finally, “allegations of fraudulent concealment must be pled with particularity.” 14 Garrison, 159 F. Supp. 3d at 1073 (citing Conmar Corp. v. Mitsui & Co. (U.S.A.), 858 F.2d 499, 15 502 (9th Cir. 1988)). 16 Perlin provides three examples of “affirmative acts” taken to mislead her: (1) Williams- 17 Sonoma “actively misled her with their advertising, packaging, and other representations 18 regarding thread count”; (2) Williams-Sonoma “continue[s] to falsely advertise and sell [its] 19 bedding to consumers”; and (3) when she called to complain about the PB Classic Bedding in 20 2014, she was told that “there was nothing wrong” with the sheets. Opp. at 10, 16. As explained 21 below, none of these theories suffices to serve as the basis for a fraudulent concealment claim. 22 With regard to the first two theories, Perlin’s claims that Williams-Sonoma “actively 23 misled her” with advertising and “continue[s] to falsely advertise and sell” bedding are the bases 24 for her lawsuit. Far from being “above and beyond the wrongdoing” at issue, see Johnson, 314 25 F.3d at 414, these theories of harm go to the heart of her case. Because these allegations are 26 “related to the underlying wrongdoing rather than an effort to prevent [Perlin] from being able to 27 sue,” these allegations cannot constitute the “affirmative conduct” needed for fraudulent 1 *5 (N.D. Cal. Apr. 23, 2013) (finding that fraudulent concealment allegations fail as a matter of 2 law where the allegations “are part and parcel” of plaintiffs’ underlying claims); see also Lukovsky 3 v. City & Cnty. of San Francisco, 535 F.3d 1044, 1052 (9th Cir. 2008) (explaining that an 4 argument for tolling based on fraudulent concealment must point to active conduct that goes 5 “above and beyond the wrongdoing upon which the plaintiff’s claim is filed”). 6 As for her third theory, Perlin has not shown that the 2014 call in which she was allegedly 7 told that “there was nothing wrong with [the] sheets” prevented her from filing suit within the 8 statutory window. As an initial matter, it is not immediately apparent that the statement by a 9 customer service representative that there was “nothing wrong” with the sheets constitutes an act 10 of intentional misrepresentation. More importantly, however, Perlin has not shown that this 11 statement prevented her from filing suit against Williams-Sonoma. Indeed, Perlin testified at her 12 deposition that no one prevented her from further investigating the reasons why her sheets ripped. 13 Perlin Depo. Tr. 183:23–184:1. As a result, the call cannot serve as the basis for Perlin’s theory of 14 fraudulent concealment. 15 In sum, because Perlin has not met her burden to show Williams-Sonoma affirmatively 16 committed acts to prevent her from filing suit in time, the doctrine of fraudulent concealment does 17 not apply. 18 IV. SEALING 19 Perlin filed portions of her opposition brief and two supporting exhibits provisionally 20 under seal because the documents contained or referenced information which Williams-Sonoma 21 has designated as confidential. See Perlin’s Unopposed Administrative Motion to Seal [Dkt. 271] 22 at 1. Pursuant to Civil Local Rule 79–5(f)(3), Williams-Sonoma was required to file a statement 23 and/or declaration showing that the material warrants sealing within seven days of Perlin’s 24 motion. See L.R. 79–5(f)(3). Williams-Sonoma has not done so. 25 I have reviewed the information contained within these documents and I am skeptical that 26 this information warrants sealing. I will nevertheless allow Williams-Sonoma the opportunity to 27 address the outstanding motion. Should Williams-Sonoma wish to maintain this information 1 Wednesday, July 27, 2022. If no response is received, the Clerk of Courts will be directed to 2 unseal the documents contained at 271-3, 271-4, and 271-5. 3 CONCLUSION 4 For the foregoing reasons, Williams-Sonoma’s motion for summary judgment on the basis 5 that Perlin’s claims are time-barred is DENIED. Perlin has not shown that the doctrine of 6 || fraudulent concealment applies but she has established that there are genuine issues of material 7 fact whether the discovery rule may apply to render her claims timely. 8 IT IS SO ORDERED. 9 Dated: July 20, 2022 10 . 11 H. Orrick 12 United States District Judge

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