Mogilefsky v. Costco Wholesale Inc.
Case No: 17CV04422
Hearing Date: Tue May 14, 2019 8:30

Nature of Proceedings: Summary Judgment

The fourth amended complaint (FAC) is the operative pleading, in which plaintiff Arthur Mogilefsky has sued defendant Costco Wholesale Corporation (Costco) for violations of the Business and Professions Code sections 17500 (Fair Advertising Law (FAL)) and 17200 (Unfair Competition Law (UCL)). Briefly, plaintiff contends defendant engaged in false advertising and unfair competition when it failed to expressly indicate in its advertising that nonmembers could purchase numerous categories of goods and services. But for this omission, contends plaintiff, he would not have purchased his $60 membership on July 7, 2017. Defendant has filed a motion for summary judgment as to both causes of action, claiming there is no evidence to show it engaged in false or misleading advertising; plaintiff cannot show he suffered economic injury (because he purchased items requiring a membership); and, in any event, plaintiff cannot show actual reliance on any false or misleading advertising as the reason he purchased the membership, a point fatal to both causes of action. Plaintiff has filed a three-part opposition, and defendant has filed a reply.

Factual Predicate for FAL (1st Cause of Action) and UCL (2nd Cause of Action) and Relevant Legal Principles That Define This Court’s Inquiry

The factual predicate for both the FAL and UCL (whether unfair business practices, unlawful business practices, or fraud) in the fourth amendment complaint is the contention that defendant Costco engaged in fraudulent or deceptive advertising, deceiving plaintiff (and the public) about membership benefits, and but for this deception, plaintiff would not have purchased his $60 renewal membership on July 7, 2017. Plaintiff contends that the false or deceptive advertising led him to believe that “membership was required to purchase all good and services at Costco,” when that is not true. (¶ 40 [FAL cause of action] [Costco knew or in the exercise of reasonable care should have known that their advertisements were untrue and misleading] ¶ 41 [FAL cause of action] [misrepresentations are material and plaintiff relied thereon]; ¶ 47 [UCL cause of action] [identifying unlawful, fraudulent, and unfair business acts, and as to all three, Costco made “untrue and misleading advertising]; ¶ 48 [same]; ¶ 50 [“unlawful” because Costco falsely advertised as members only store]; ¶ 51 [“unfair” business acts because Costco’s misrepresented and omitted material facts]; ¶ 54 [“fraudulent” prong violated because advertising violated FAL].)

The FAL and UCL prohibit not only advertising which is false, but advertising which, although true, is either actually misleading or which has a capacity, likelihood or tendency to deceive or confuse the public. Thus, to state a claim under either the FAL or UCL based on false advertising or promotional practices, it is necessary to show members of the public are likely to be deceived. This is determined by considering not those who are most vigilant and suspicious of advertising claims or those who are the most unwary and unsophisticated, but the “ordinary consumer within the target population.” “Likely to deceive” implies more than a mere possibility that advertisement might conceivably be misunderstood by a few consumers viewing it in an unreasonable manner. Rather, the phrase indicates that the advertisement is such that it is probable that a significant portion of general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled. (Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 951; Chapman v. Skype, Inc. (2013) 220 Cal.App.4th 217, 226-227.) To state a claim under the UCL or FAL based on false advertising, it is necessary only to show that members of the public are likely to be deceived. (Veera v. Banana Republic, LLC (2016) 6 Cal.App.5th 907, 915; see also In re FCA US LLC Monostable Electronic Gearshift Litigation (E.D. Mich. 2017) 280 F.Supp.3d 975, 992 [stating California law].)

The UCL prohibits and provides civil remedies for unfair competition, which it defines as “any unlawful, unfair, or fraudulent business act or practice.” (Bus. & Prof. Code[1], § 17200). The state’s false advertising law or FAL (§ 17500, et seq.) is equally comprehensive within the narrower field of false and misleading advertising. Proposition 64 changed the standing rules under both schemes and in the same way. To prove a violation of the FAL or UCL, plaintiff must show he has suffered injury in fact and has lost money or property as a result of false or misleading advertising. To satisfy the narrower standing requirements imposed by Proposition 64, plaintiff must (1) establish a loss or deprivation of money or property sufficient to qualify as an injury in fact i.e., economic injury; and (2) show that the economic injury was the result of i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim. (Kwikset v. Superior Court (2011) 51 Cal.4th 310, 321-322.) The phrase “as a result of” in its plain and ordinary sense means “caused by” and requires a showing of a causal connection or reliance on the alleged misrepresentation. (Ibid; see Tun v. Wells Fargo Dealer Services, Inc. (2016) 5 Cal.App.5th 309, 330-331 [to state a claim under the FAL, a plaintiff must plead and prove facts showing actual reliance, that is, that the plaintiff suffered economic injury as result of his or her reliance on the truth and accuracy of the defendant’s representations].) This is true to the extent the “unlawful” prong of the UCL cause of action incorporates violations of the FAL, as it does here. (FAC, ¶ 49;, 57; Moran v. Prime Healthcare Management, Inc. (2016) 3 Cal.App.5th 1131, 1143 [“To satisfy the causation element ‘under the “unlawful” prong of the UCL, in which the predicate unlawful conduct is based on misrepresentations,’ a plaintiff ‘must show actual reliance on the alleged misrepresentation, rather than a mere factual nexus between the business’s conduct and the consumer’s injury] see also In re Tobacco II Cases (2009) 46 Cal.4th 298, 326 [Proposition 64 imposes an actual reliance requirement on plaintiffs prosecuting a private enforcement action under the UCL’s fraud prong]; Kwikset, supra, 51 Cal.4th at p. 322 [plaintiff must show that the economic injury was the result of, or caused by the unfair business practice or false advertising that is the gravamen of the claim].)

The rules for summary judgment are well established (defendant has not filed a motion for summary adjudication, as determined by the notice of motion). A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c).)

A defendant seeking summary judgment bears the initial burden to produce evidence demonstrating either one or more elements of the causes of action cannot be established, plaintiff cannot reasonably obtain evidence to establish any element of the cause of action, or there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Richfield (2001) 25 Cal.4th 826, 849-850, 854-855.) If the motion is made against a plaintiff who would bear the burden of proof by a preponderance of evidence at trial, the defendant “must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not—otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.” (Id. at p. 851, italics & fn. omitted.) Defendant can also meet his burden by pointing to plaintiff’s discovery responses to the effect that he has discovered nothing to support an essential element of the cause of action. (Ibid. at p. 855.) It is not enough for defendant alone to contend plaintiff “has no evidence” on a key element. Plaintiff’s own pleadings or discovery responses may contain admission disproving an essential element of plaintiff’s claim. (See, e.g., Villa v. McFerren (1995) 35 Cal.App.4th 733, 749 [deposition admissions may shift burden of proof].)

If the defendant makes a prima facie showing, then the burden of production “shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) “The plaintiff . . . shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Ibid.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, at p. 850, fn. omitted.) “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Ibid.)

Request for Judicial Notice

The court grants defendant’s request to take judicial notice of the undisputed facts concerning the population of the United States; the number of people who attended Major League Baseball games; and the number of people who voted in the last mid-term elections, as these facts and propositions are not reasonably subject to dispute and are capable of immediate and accurate determination (Evid. Code, § 452, subd. (h). Not insignificantly, plaintiff fails to object.

Defects With Separate Statements

Defendant’s separate statement is not a model to follow, leaving to the court the task of sorting out which claimed undisputed fact supports a particular claim advanced in the memorandum of points and authorities. Defendant simply lists in serial fashion undisputed fact Item Nos. 1 to 41 without nuance. This does not comport with California Rules of Court Rule 3.11350(d)(1) and(h), which requires the moving party to place in the separate statement itself an appropriate heading (a supporting statement) under which each claimed undisputed fact is asserted in support.

Plaintiff’s separate statement, however, involves far more significant deviations from the requirements contained in California Rules of Court Rule 3.1350(f). He provides “undisputed” responses to Item Nos. 3, 8, 9, 12, 30, 32 to 37, and 40, and disputes all remaining items. Unfortunately, he cites evidence in support of his response to Item Nos. 4, 6, 15, 16, and 31, and even then, in Item Nos. 4 and 6, plaintiff cites to his amended pleading in support, which is clearly inappropriate. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 720, fn. 7 [“it is generally understood . . . that a party cannot rely on the allegations of his own pleadings, even if verified, to make or supplement the evidentiary showing required in the summary judgment context”].) In response to Item No. 17, plaintiff dryly states: “Plaintiff has never seen many things.” This caustic response is not only counterproductive, it is also a patent violation of the above-noted rules.

Further, even when evidence is provided, plaintiff also 1) objects to defendant’s statement of undisputed fact as not material and thus “irrelevant”; 2) objects under California Rule of Court rule 3.1350(h) with the following attestation — “failure to state issue” (by which this court assumes plaintiff is advancing a format objection on the grounds observed above); and 3) advances other evidentiary objections. It is inappropriate to include evidentiary objections in a separate statement, as the objection fails to comply with California Rules of Court rule 3.1354(b) [all written objections to evidence must be served and filed separately from other papers]; see also Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 9 [interposing objections into the separate statement defeats the goal of allowing efficient determination; trial court has discretion to deny objection for violation].) Further, any claimed “undisputed fact” in the separate statement is a concession only for purposes of summary judgment—it is not evidence. (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 747.) As the undisputed issue of fact is not evidence, no evidentiary objection is appropriate.

The court will overlook all deficiencies and examine the merits of motion.

Plaintiff’s Request for “Partial Summary Judgment” (Made in Opposition)

Plaintiff in his opposition (page 8 of Part 1 of 3 of his opposition) asks the court enter “partial summary judgment on his cross-motion” as to the sole issue of “reliance.” The court rejects this request. First, “older cases” sometimes refer to “partial summary judgment,” but the proper terminology is “summary adjudication.” (City of Santee v. Superior Court (1991) 228 Cal.App.3d 713, 720, fn. 5 [the code does not employ the term “partial summary judgment,” presumably because it is misnomer since no judgment is entered; the preferred terminology is “summary adjudication”].) Second, summary adjudication is appropriate under Code of Civil Procedure section 437c, subdivision (f)(1) only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” Plaintiff’s request violates this rule, for it does not dispose of any cause of action in its entirety. Finally (and not insignificantly), the court has no jurisdiction to act on the request because it violates the 75-day notice rules for summary judgment/adjudications motions. Plaintiff opposes the summary judgment motion and, at the same time, advances his own motion for summary adjudication. These two pleadings operate separately. While the opposition is to be filed not less than 14 days preceding the noticed hearing date, a party own motion for summary adjudication must be filed at least 75 days before the time appointed for the hearing. This is jurisdictional, and the request is untimely. (Cuff v. Grossmont Union High School Dist. (2013) 221 Cal.App.4th 582, 596.)

Merits of Defendant’s Summary Judgment Motion

Are there Disputed Issues of Material Fact Concerning False or Deceptive Statements by Costco?

Plaintiff contends in the fourth amended complaint, as to both causes of action, that he has received a “plethora of Costco advertisements extolling the benefits of membership that are widely disseminated to the public”; and that he believed from these advertisements that “membership was required to purchase all goods and services at Costco.” Plaintiff contends in the operative pleading that he saw no disclaimers in any Costco advertising exempting certain goods or services from the membership requirement.” (¶ 16.) He contends this same advertising “deceived [him] and was likely to deceive the general public into believing that Costco was a ‘members-only’ retail warehouse for the purchase of all goods and services.” According to plaintiff, the advertising is thus “untrue and misleading and likely to deceive a significant number of Costco members and members of the public.” (¶ 19.) Plaintiff did not attach a copy of the advertisement mentioned above to the fourth amended complaint, although he listed them in serial fashion in paragraph 20, including reference to a “Members-Only Savings” coupon booklet, the membership agreement listing benefits of membership, a Costco monthly publication listing reduced prices for members, from Costco.com, a “Costco Services” booklet, and the following statement (which was Exhibit C to his second amended complaint) from the website: “ “We are a membership warehouse club, dedicated to bring our members the best possible prices on quality, brand-name merchandise. With hundreds of locations worldwide, Costco provides a wide selection of merchandise, plus the convenience of specially departments and exclusive member services, all designed to make you shopping experience a pleasurable one.”

Defendant argues in its motion that there is no evidence – and plaintiff cannot obtain any evidence – to show the public was likely deceived by any of the advertisements sent to plaintiff. In support, defendant offers Separate Statement, Item No. 1 [“Costco does not state in its advertisements or otherwise that membership is required for all purchases”]; No. 2 [“Costco does not state in advertisements or otherwise that non-members can enter its warehouses]; and No. 21 [Costco does not advertise that it provides an ‘exclusive shopping experience”].) These three statements are supported by the declaration of Mr. Adam Fenton, who is the Director of Costco Wholesale Corporation.

If Mr. Fenton’s declaration were the only evidence offered by defendant, the motion would likely fail. But it is not the only evidence. Defendant offers evidence associated with Separate Statements Nos. 17 to 21, which are based on plaintiff’s deposition testimony. During his deposition, plaintiff admitted that the “only” basis for his claim in this lawsuit for his claims of deception stem from the presence of the word “member” in the advertisements he received. He admitted he never saw “any advertisement from Costco which states that membership is required for every item in the store.” He also admitted that he has never seen an advertisement to the effect “that every person in the warehouse must be a member”; admitted that he never saw an advertisement that indicated only members could buy alcohol or to buy prescriptions, two of the 12 categories of items that do not require membership; and admitted during his deposition that he never had to show his membership card to purchase any item at Costco’s outdoor food court, and that he just “never thought about by membership” for that purpose.

Further, in evidence associated with Separate Statement Nos. 23 to 28, and No. 9, Ms. Curry, Director of Ecommerce Content Management for Costco, authenticates a number of critical exhibits. Exhibit F is a document entitled “Frequently Asked Questions?” as outlined on Costco’s website. Costco states, for example, that “Costco pharmacies are open to non-members where regulated by state law.” Exhibit G is a document also from the Costco website, entitled “Customer Service,” which provides that a person does not “need to be a Costco member to purchase Costco pharmacy prescriptions online or at our warehouses. . . .” Exhibit H is a description of the “Costco Cash Card,” which provides, in part that “members and nonmembers may use Costco Cash Cards to shop at any Costco location in the United States . . . .” Exhibit L is reference to Costco Optical, and provides in relevant part that “while nonmembers are invited to the take advantage of our house optometrists, only members can purchase optical items including glasses and contacts (just another reason to join).” Exhibits M, N, and O (all from the Costco website) clearly make references to both member and nonmember purchases.

It appears Costco does not expressly advertise to the public that nonmembers can purchase the listed categories of items as outlined in the fourth amended complaint. Costco has pointed to nothing to this effect in any event. At the same time, Costco does not misstate or deceive the public about a nonmembers’ ability to purchase items at the warehouses or online – and thus, it is apparent that membership is not always a condition precedent to purchase every item sold at Costco, contrary to plaintiff’s allegations in on his fourth amended complaint. The evidence from Mr. Fenton and Ms. Curry indicate there is no false or deceptive advertising on this subject. Further, there are references to nonmembers’ purchases scattered throughout the advertisements. Plaintiff’s subjective impression that “membership” (as used in advertisements) translated into “exclusive” membership for every item sold, despite the frequent references to nonmember purchasing scattered throughout the advertising firmament, indicates this lawsuit is s predicated on plaintiff’s personal interpretation, rather than whether a reasonable consumer would be deceived. (People v. Overstock.Com, Inc. (2017) 12 Cal.App.5th 1064, 1078 [the gravamen of any false advertising claim is whether members of the public are likely to be deceived].) The statute protects against the probability or likelihood of deception or confusion of a reasonable consumer; there seems no disputed issue of material fact that a reasonable consumer would be so deceived based on the evidence presented. (Chapman v. Skype, Inc. (2013) 220 Cal.App.4th 217, 226 [the UCL and false advertising law do not consider the most vigilant or the most unwary and unsophisticated, but instead the ordinary consumer within the target population].)

Plaintiff does not address this issue in his written opposition. He does indicate, however, that “this lawsuit” is not about “what [] Plaintiff did not see or what Costco did not advertise,” but about “what Costco did advertise . . . .” (P. 5 of Opposition, Part 1 of 3, emphasis added.) Even under this standard, plaintiff fails to explain the impact of Exhibit G, in which Costco advertises that “[y]ou don’t need to be Costco member to purchase Costco pharmacy prescriptions online or at our warehouses . . . .” In this same vein plaintiff fails to explain the impact of Exhibit F, which is from Costco’s website and contains “Frequently Asked Questions.” It reads in relevant part: “I’m not a Costco member and I have purchased prescriptions at Costco’s Pharmacy before,” and asks “why do I have to join Costco now?” It is explained that “Costco’s pharmacies are open to non-members where required by state law. The Costco Member Prescription Program is value added benefit of Costco membership. However, you do not have to become a Costco member . . . to continue buying prescriptions at the pharmacy.” Plaintiff also fails to examine the impact of Exhibit O from Costco website, entitled “FAQs” about purchase from Costco groceries, with the provides for “Non-Member Eligibility,” and indicates that “non-members can also shop directly from [the website] but pay a higher price than members shopping . . . .” One can hardly escape the point from this advertising that nonmembers can shop at Costco. (See generally Filmon.Com v. Doubleverify Inc. (May 6, 2019) ___ Cal.4th ____ [Typed. opn. at p. 3 [“The Internet has become pervasive in less than a generation, and along with it, advertising through online platforms”].) The record belies plaintiff’s contention advanced in the fourth amended complaint that Costco “conceal[s]” the nonmember services” or was deceptive in describing the advantages of Costco membership. The fact plaintiff was not subjectively aware of nonmembership shopping in light of this advertising suggests he may be an “unwary” customer rather than a reasonable consumer. During his deposition, plaintiff seemed to acknowledge that this lawsuit was a byproduct of momentary pique. He stated: “I got over it. You know, I am not a grudge holder. I just realized that Costco is like every other big corporation that will get away with whatever they can. Prior to that, I thought they were squeaky clean. That is why I liked them so much.”

It appears there are no disputed issues of material fact about the nature of Costco’s advertising as presented by defendant, which has not been countered by plaintiff in opposition.

Are there Disputed Issues of Material Fact Concerning Plaintiff’s Reliance on the Alleged Fraudulent or Deceptive Advertising?

There is an alternative ground to grant defendant’s summary judgment motion. It is plaintiff’s burden at trial to show “standing,” and specifically, that he suffered an economic harm “as result of” or “caused by” Costco’s claimed deception for both the FAL and UCL cause of action. (Kwikset, supra, 51 Cal.4th at p. 322.) Plaintiff acknowledges as much when he alleges in his operative pleading that he “lost money in the amount of $60 and suffered injury in fact by his reliance on Costco’s advertising.” It was for that reason the court overruled Costco’s demurrer, as Kwikset made it clear that a consumer can meet the standing requirement by alleging that he or she would not have bought the product but for the misrepresentation. (Id. at p. 330.)

The evidence now before the court does not support plaintiff’s standing to advance this lawsuit. During plaintiff’s deposition, he admitted that he “loves” shopping at Costco, both before and after July 7, 2017, when he renewed his membership. When asked whether “the fact that nonmembers can shop there hasn’t stopped your from shopping there,” plaintiff admitted that was true. Plaintiff did not have a definite answer for the following question when asked during his deposition: “If you had known on the day that you renewed your membership in 2017 that people could be – that you could have purchased alcoholic beverages at Costco without a membership, would you [have returned the items you purchased with the Costco membership card]?” Plaintiff said simply that it calls for speculation, because “when I am standing there at the checkout counter I don’t know what I am going to do. Boom, boom, boom, and get out of there. . . .” He did admit, however, that in 2017, when he renewed his membership, he wanted to and did in fact purchase items he could not purchase as a nonmember. Most telling, perhaps, is his admission that in 2018, with full knowledge that nonmembers could purchase all listed categories of items, he still renewed his membership in 2018. Plaintiff has admitted that he has never requested a refund of his 2017 membership fee.

This evidence proves fatal, for it reveals there is no triable issue of material fact that any alleged deception was a substantial factor in causing plaintiff’s ’economic injury. In Kwikset, for example, plaintiffs selected the locksets at issue because they were “Made in the U.S.A.”; plaintiffs would not have purchased them otherwise; and it “may be inferred, they [plaintiffs] value what they actually received less than either the money they parted with or working locksets that actually were made in the United States.” (Id. at p. 332.) Plaintiff contends here that it was material to him that Costco membership was exclusive; yet plaintiff at his deposition completely undermines that claim. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22 [admission in a deposition on the part of the party opposing summary judgment that demonstrates there is no factual issue to be tried is afforded deference not given to affidavits].) Plaintiff has consistently used the Costco membership card to purchase items nonmembers cannot purchase. What plaintiff claims as important – the exclusively of membership – is, in the end, actually unimportant, as he renewed his membership again in 2018 with express knowledge of what nonmembers can purchase. Plaintiff must show, in the absence of the alleged misrepresentation, he “in all reasonably probability” would not have engaged in the injury-producing conduct. (In re Tobacco, supra, 46 Cal.4th at p. 326.) That cannot be shown based on plaintiff’s deposition concessions/admissions.

This case seems analogous to Hall v. Time, Inc. (2008) 158 Cal.App.4th 847. A customer agreed to try a book from a publisher for a “free trial period,” and eventually paid for the book after the matter was turned over to a collections agency (and long after the free trial period was over). The customer brought a UCL action, alleging that the publisher used misleading and deceitful tactics to fool customers into thinking that, despite the so-called “free” trial period, they were automatically under the obligation to pay for the book. The Court of Appeal held that there was no standing, despite the customer’s eventual parting with consideration for the book ($29.51), because the customer did not allege that he didn’t want the book in the first place (he did), or that the book was unsatisfactory (it wasn’t), or that it was “worth less than what he paid for it.” (Id. at p. 855.)

This case also seems similar to Medina v. Safe-Guard Products, Internat., Inc. (2008) 164 Cal.App.4th 1055. In Medina, plaintiff purchased a vehicle service contract, and alleged he had demonstrated an injury in fact simply by paying for the contract. (Id at p. 114.) The Court of Appeal rejected that claim, concluding plaintiff had no standing because he failed to allege he did not want the coverage in the first place, or that he was given unsatisfactory service, or that he had a claim denied, or that he paid more for the coverage than what it was worth. He suffered no loss. (Ibid; see also Demeter v. Taxi Computer Services, Inc. (2018) 21 Cal.App.5th 903, 916 [plaintiff failed to present evidence to counter defendant’s summary judgment showing that no disputed issue of material fact exists for standing under UCL].) )

Here, there are no disputed issues of material fact to show plaintiff has standing to advance either cause of action in the same vein as Hall, Medina, and/or Demeter. That is, on the present record, plaintiff cannot show he would have “in all reasonable probability” stopped purchasing the Costco membership but for any assumed deceptive, unlawful, untrue, or misleading advertising.

In summary, the court grants defendant’s request for judicial notice; overlooks defects in the separate statements; denies plaintiff’s request for “partial summary judgment”; and ultimately grants defendants’ summary judgment as to both causes of action, for the reasons articulated above. Defendant is directed to provide a proposed order and judgment for signature.

The parties are directed to appear at the hearing.

[1] All further statutory references are to the Business and Professions Code unless otherwise noted.