Vickery v. SD Bullion, Inc. et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
ROBERT VICKERY,
Plaintiff,
v.
SD BULLION, INC.. SMART SILVER
STACKER, SILVER DRAGONS,
YANKEE STACKING, SILVER
SEEKER, and DOES 1 through 10,
Defendants.
Case No.: 3:25-cv-1915-JES-DDL
ORDER:
(1) GRANTING IN PART AND
DENYING PART MOTION TO
DISMISS; and
(2) DENYING MOTION FOR LEAVE
TO AMEND AS MOOT
[ECF Nos. 6, 9]
Plaintiff Robert Vickery (“Plaintiff”) brings this action against Defendants SD
Bullion, Inc., (“Defendant”); the YouTube channels Smart Silver Stacker, Silver Dragons,
Yankee Stacking, Silver Seeker (collectively, “YouTube Defendants”); and 10 Doe
Defendants alleging various causes of action arising from his purchase of precious metal
coins from Defendant’s website. ECF No. 1 (“Compl.”). Defendant moves to dismiss
Plaintiff’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 6.
Plaintiff filed an opposition to the motion to dismiss. ECF No. 8. Plaintiff also filed a
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motion to amend or correct his complaint. ECF No. 9. On November 12, 2025, the Court
heard oral argument on the motion. ECF No. 10. For the reasons stated herein, Defendant’s
motion is GRANTED in part and DENIED in part, and Plaintiff is given leave to amend.
I. 	BACKGROUND
On May 25, 2025, Plaintiff purchased a gold coin from Defendant through its
website for the price of $1,123.95. Compl. ¶ 14. Plaintiff states that he relied upon
Defendant’s representation through online marketing that its coins were “The Lowest
Price. Period.” in making his purchase. Id. ¶ 2. Plaintiff alleges that Defendant advertises
its services and products with the phrase “SD BULLION The Lowest Price. Period.” in all
of its promotional materials and online advertisements. Id. ¶ 12. However, Plaintiff alleges
that he later learned that the coins sold by SD Bullion were $102 more expensive per coin
than coins available through other retailers that day. Id. ¶ 17. Plaintiff alleges that
Defendant knew or should have known that its “Lowest Price” advertisement was false,
and that he would not have purchased the coins had he known the statement was false. Id.
¶¶ 19-20.
Plaintiff alleges that Defendant is a premium dealer that benefits from the “halo
effect” conferred by others who promote its products on their platforms. Id. ¶ 15. YouTube
Defendants are YouTube channels and social media platforms. Id. ¶¶ 4-8. Plaintiff alleges
that the YouTube Defendants advertised SD Bullion’s merchandise and false or misleading
statements regarding price, and that they knew or should have known of the statement’s
falsity. Id. ¶¶ 21-25. Plaintiff brings causes of action for violations of (1) False Advertising
pursuant to 15 U.S.C. § 1125 (“Lanham Act”); (2) Contributory False Advertising pursuant
to the Lanham Act; (3) California Unfair Competition Law (“UCL”) pursuant to Business
& Profession Code § 17200; (4) California False Advertising Law (“FAL”) pursuant to
Business & Profession Code § 17500; and (5) Civil Conspiracy. Id. ¶¶ 33-77.
//
//
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II. 	LEGAL STANDARD
A. Rule 12(b)(6)
A motion to dismiss for failure to state a claim should be granted when the
allegations do not “state a claim to relief that is plausible on its face.” Aschroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). “The plausibility standard ... asks
for more than a sheer possibility that a defendant has acted unlawfully.” Mashiri v. Epsten
Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (internal quotations omitted).
When evaluating the sufficiency of a complaint's factual allegations, the court must
accept as true all well-pleaded material facts alleged in the complaint and construe them in
the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d
1136, 1140 (9th Cir. 2012); see Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th
Cir. 2010). Allegations in a complaint “may not simply recite the elements of a cause of
action, but must contain sufficient allegations of underlying facts to give fair notice and to
enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216
(9th Cir. 2011). While the court must draw all reasonable inferences from the factual
allegations in favor of the plaintiff, Newcal Industries, Inc. v. Ikon Office Solution, 513
F.3d 1038, 1043 n.2 (9th Cir. 2008), the court need not credit legal conclusions that are
couched as factual allegations, Iqbal, 556 U.S. at 678-79.
When a court dismisses a complaint under FRCP 12(b)(6), it must then decide
whether to grant leave to amend. FRCP 15(a) provides that a district court should “freely
give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a). A district court has
discretion to deny leave to amend when a proposed amendment would be futile. Chappel
v. Lab. Corp. of America, 232 F.3d 719, 725-26 (9th Cir. 2000). Dismissal without leave
to amend is appropriate only when the Court is satisfied that the deficiencies of the
complaint could not possibly be cured by amendment. Jackson v. Carey, 353 F.3d 750, 758
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(9th Cir. 2003). In other words, if allowing a party to amend its pleading would be futile,
district courts properly decline to grant leave to amend. Thinket Ink Info. Res., Inc. v. Sun
Microsys., Inc., 368 F.3d 1053, 1061 (9th Cir. 2004) (citing Saul v. United States, 928 F.2d
829, 843 (9th Cir. 1991)).
B. Rule 9(b)
Plaintiffs bringing UCL false advertising claims in federal court are subject to the
heightened pleading requirements of Federal Rule of Civil Procedure 9(b), which mandates
that a plaintiff alleging fraud must “state with particularity the circumstances constituting
fraud.” Fed. R. Civ. P. 9(b); See also Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th
Cir. 2009). Such allegations must set forth the “who, what, when, where, and how” of the
alleged misconduct. Id. The allegations must be “specific enough to give defendants notice
of the particular misconduct so that they can defend against the charge and not just deny
that they have done anything wrong.” Id. (quoting Bly–Magee v. California, 236 F.3d 1014,
1019 (9th Cir. 2001)) (internal quotation marks omitted).
C. Rule 12(f)
Rule 12(f) permits the court to strike from a pleading “any redundant, immaterial,
impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “[T]he function of a 12(f) motion
to strike is to avoid the expenditure of time and money that must arise from litigating
spurious issues by dispensing with those issues prior to trial[.]” Sidney-Vinstein v. A.H.
Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). “Motions to strike are generally disfavored
and should not be granted unless the matter to be stricken clearly could have no possible
bearing on the subject of the litigation.” Diamond S.J. Enter., Inc. v. City of S.J., 395 F.
Supp. 3d 1202, 1216 (N.D. Cal. 2019), aff’d, 100 F.4th 1059 (9th Cir. 2024) (citation
omitted). “With a motion to strike, just as with a motion to dismiss, the court should view
the pleading in the light most favorable to the nonmoving party.” Platte Anchor Bolt, Inc.
v. IHI, Inc., 352 F. Supp. 2d 1048, 1057 (N.D. Cal. 2004) (citation omitted). “Ultimately,
whether to grant a motion to strike lies within the sound discretion of the district court.”
Diamond S.J. Enter., Inc., 395 F. Supp. 3d at 1216 (citation omitted).
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III. DISCUSSION
Defendant argues that Plaintiff’s class allegations are insufficient to survive a motion
to dismiss because (1) Plaintiff lacks standing to represent a class under the Lanham Act
in counts one and two; (2) Plaintiff may not represent a nationwide class for his state claims
arising under California law; (3) Plaintiff has not satisfied the commonality requirement of
Federal Rule of Civil Procedure 23(b)(3); (4) Plaintiff fails to state a cause of action under
the UCL; (5) Plaintiff fails to state a cause of action under the FAL; and (6) Plaintiff fails
to state a cause of action for Civil Conspiracy. ECF No. 6-1 (“Mot.”) at 7-12. The Court
analyzes each of Defendant’s arguments below.
A. Standing
Defendant argues that, as a consumer, Plaintiff lacks standing to sue under the
Lanham Act. Mot. at 9-10. The Court agrees.
The “Lanham Act's purpose [is] protecting persons engaged in commerce within the
control of Congress against unfair competition.” POM Wonderful LLC v. Coca-Cola Co.,
573 U.S. 102, 108 (2014) (cleaned up). In Lexmark International, cited by both Defendant
and Plaintiff for the standard for Lanham Act violations, the Supreme Court held that the
Lanham Act protects commercial injuries proximately caused by competitor
misrepresentations. Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118,
140 (2014). “A consumer who is hoodwinked into purchasing a disappointing product may
well have an injury-in-fact cognizable under Article III, but he cannot invoke the protection
of the Lanham Act—a conclusion reached by every Circuit to consider the question.” Id.
at 132.
Here, Plaintiff is a non-commercial real person. Compl. ¶ 2. Plaintiff seems to
suggest that the Court should interpret the Lanham Act to include individuals based on its
plain language, without citing any caselaw. ECF No. 7 at 4. This is not persuasive, given
the Supreme Court’s clear statement to the contrary. See Lexmark Int’l, 572 U.S. at 140.
Thus, Defendant’s motion to dismiss Plaintiff’s Lanham Act claims in counts one and two
is GRANTED without leave to amend.
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B. Representation of Nationwide Class
A class action plaintiff may only represent a putative class consisting of members
who share common questions of law with the plaintiff. Fed. R. Civ. P. 23(b)(3). Whether
a plaintiff may represent a nationwide class for state law claims is a choice-of-law question,
which courts will only decide prior to the class certification stage if it is evident from the
complaint that “any questions of law are clear and not in dispute, and that under no set of
circumstances could the claim or defense succeed.” Krantz v. Old Copper Co., Inc., 794 F.
Supp. 3d 724, 748 (C.D. Cal. 2025). District Courts sitting in diversity follow forum state
choice-of-law rules as a form of substantive law. Klaxon Co. v. Stentor Elec. Mfg. Co., 313
U.S. 487, 496 (1941). While Plaintiffs bear the burden of showing that their choice of law
is proper to certify a class under California law, Defendants bear the burden at the motion
to dismiss stage to show that Plaintiffs have not stated a claim. See Bias v. Wells Fargo &
Co., 942 F. Supp. 2d 915, 929 (N.D. Cal. 2013) (“Ultimately, Plaintiffs will bear the burden
of establishing whether issues relating to choice of law can survive the test
for class certification.”); Fed. R. Civ. P. 12(b)(6). Courts may decline to make choice-of-
law determinations prior to a motion for class certification when the record as to where the
harms are felt or the difference in law between states is underdeveloped by the parties. See,
e.g., Bias, 942 F. Supp. 2d at 929 (declining to make choice-of-law determination prior to
class certification motion due to lack of record on where harms were felt); Krantz, 794 F.
Supp. 3d at 749-50 (declining to make choice-of-law determination in motion to strike
contract claims due to lack of record on differences in law).
Here, the record is underdeveloped as to where the harms are felt or the difference
in law between states, making it difficult for the Court to decide whether Plaintiff may
represent a nationwide class. This decision should be made based on a more complete
record than currently exists. Whether Plaintiff’s UCL and FAL claims are ultimately tied
to California cannot be discerned without the benefit of discovery. For that reason, a
determination is better suited for the class certification stage.
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For the for foregoing reasons, the Court DECLINES to hold, at this juncture, that
Plaintiff is unable to represent a nationwide class. This issue is better suited for
determination at the class certification stage, and Defendant’s motion to dismiss on this
ground is hereby DENIED.
C. Commonality for Class Allegations
Defendant argues that Plaintiff’s class allegations cannot plausibly meet the
commonality requirement for a class action because (1) the precious metal coins Defendant
sells are very different from each other and (2) Plaintiffs may not represent a nationwide
class of plaintiffs for claims arising under California law. Mot. at 8-9. The Court has
previously addressed Defendant’s second argument regarding Plaintiff’s ability to
represent a nationwide class and will only address Defendant’s first argument below.
1. The differences between coins
“The prevailing view in the Ninth Circuit is that class action plaintiffs can bring
claims for products they did not purchase as long as the products and alleged
misrepresentations are substantially similar.” Cordes v. Boulder Brands USA, Inc., No. CV
18-6534 PSG (JCx), 2019 WL 1002513, at *2 (C.D. Cal. Jan. 30, 2019) (cleaned up)
(quotations and citations omitted). “Factors that other courts have considered include
whether the challenged products are of the same kind, whether they are comprised of
largely the same ingredients, and whether each of the challenged products bears the same
alleged mislabeling.” Wilson v. Frito-Lay N. Am., Inc., 961 F. Supp. 2d 1134, 1141 (N.D.
Cal. 2013). “Courts often postpone the inquiry about the similarity of the products until the
class certification stage.” See Cordes, 2019 WL 1002513, at *2.
Here, the two putative classes consist of all California persons and all persons who
resided in the United States who purchased precious metal coins and paid more than they
would elsewhere based on SD Bullion’s low price assurance. Compl. ¶ 26. Plaintiff’s
allegation that all the coins purchased were made of precious metal is sufficient to plausibly
allege that the coins are “of the same kind” and “comprised of largely the same
ingredients.” See Wilson, 961 F. Supp. 2d at 1141. Further, Plaintiff sufficiently alleges
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that “each of the challenged products bears the same alleged mislabeling” by alleging that
Defendant made its low-price statement in all of its advertisements. Id.; Compl. ¶ 12.
Defendant’s argument that specific types of coins have many iterations such as weight is
better suited for class certification than motion to dismiss because it gets into the minutiae
of claims, rather than general similarity and common false statement. See Cordes, 2019
WL 1002513, at *2. Thus, the motion to dismiss Plaintiff’s claims on the basis that the
Plaintiff cannot represent class members who purchased distinct coins is DENIED.
D. UCL and FAL
Defendant argues that Plaintiff’s claims arising under the UCL and FAL should be
dismissed because Plaintiff’s allegations are conclusory and unconnected to his claim, and
do not meet the heightened pleading requirement for allegations of fraud. Mot. at 11-12.
As explained below, the Court disagrees.
The UCL prohibits “unlawful, unfair or fraudulent business act or practice and
unfair, deceptive, untrue, or misleading advertising” as a form of unfair competition. Cal.
Bus. & Prof. Code § 17200. The FAL similarly prohibits “untrue or misleading”
advertising “which is known, or which by the exercise of reasonable care, would be known
to be untrue or misleading.” Cal. Bus. & Prof. Code § 17500. “[A]ny violation of the false
advertising law … necessarily violates the UCL.” Kasky v. Nike, Inc., 27 Cal. 4th 939, 950
(2002). “The UCL expressly incorporates the FAL’s prohibition on unfair advertising as
one form of unfair competition.” Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1103 (9th Cir.
2013). To state a claim for false advertising under California law, a plaintiff must allege an
advertisement which is “either actually misleading or which has a capacity, likelihood or
tendency to deceive or confuse the public,” and “likely to deceive a reasonable consumer.”
Hadley v. Kellogg Sales Co., 243 F. Supp. 3d 1074, 1092 (N.D. Cal. 2017) (internal
quotations omitted). California’s Supreme Court has held that plaintiffs who bring UCL
claims on a theory of fraud, such as false advertising claims, must also show actual reliance,
because “reliance is the causal mechanism of fraud.” In re Tabacco II Cases, 46 Cal. 4th
298, 326 (2009). “[A]t the motion to dismiss stage, ‘actual reliance … is inferred from the
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misrepresentation of a material fact.’” Moore v. Mars Petcare US, Inc., 966 F.3d 1007,
1021 (quoting Friedman v. AARP, Inc., 855 F.3d 1047, 1055 (9th Cir. 2017)). Because the
UCL and FAL are premised on the same alleged false statements, the Court evaluates the
sufficiency of the false advertising claims collectively.
Here, Plaintiff alleges that SD Bullion advertised “Lowest Price. Period.,” that the
statement was objectively false, and that it induced his purchase of their coins.
Compl. ¶¶ 18-19, 52-59. These allegations are sufficient to state a UCL and FAL claim
under California law because, taken as true, they show a misrepresentation through a false
statement, and that the misrepresentation was material because it induced Plaintiff to
purchase a coin. See Moore, 966 F.3d at 1021. Defendant argues that these allegations are
insufficient because they do not show a connection to the specific coin purchased by
Plaintiff. Mot. at 14. However, interpreting the allegations in the light most favorable to
Plaintiff as the nonmoving party, the Court finds it plausible that a consumer could be
induced to buy a precious metal coin by an advertisement contained throughout marketing
materials for a business that primarily sells such coins. See Compl. ¶ 12. Thus, Plaintiff has
sufficiently alleged a UCL and FAL false advertising claim under California law.
Regarding Rule 9(b)’s heightened pleading standard, Defendant argues that these
allegations contain insufficient detail to put it on notice of the fraud claims. Mot. at 15.
However, Plaintiff’s allegation that Defendant intentionally falsely stated that its prices
were “the lowest” to induce customers to buy its coins does contain who (Defendant), what
(false statements), when (before Plaintiff purchased his coin), where (on Defendant’s
website), why (to sell coins), and how (through advertisements) of the misconduct charged.
See Kearns, 567 F.3d at 1124; Compl. ¶¶ 61-62. Based on Plaintiff’s theory of
straightforward false advertising, the allegations contained in the complaint of the false
statement, knowledge, and where it was advertised are sufficient to put the Defendant on
notice of the charged conduct of making a false statement and advertising it. See id.;
Semegen v. Weidner, 780 F.2d 727, 731 (1985). Therefore, Defendant’s motion to dismiss
Plaintiff’s UCL and FAL claims are DENIED.
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E. Civil Conspiracy
Defendants argue that Plaintiff fails to state a claim for conspiracy because he does
not allege an agreement between SD Bullion and the YouTube Defendants to achieve an
unlawful goal. Mot. at 16. The Court agrees.
As a threshold matter, civil conspiracy under California law “is not a cause of
action,” but instead “a legal doctrine that imposes liability on persons who, although not
actually committing a tort themselves, share with the immediate tortfeasors a common plan
or design in its perpetration.” Allied Equip. Corp. v. Litton Saudi Arabia Ltd., 7 Cal.4th
503, 510-11 (1994). To state a claim for civil conspiracy, a plaintiff must allege “(1) the
formation and operation of the conspiracy, (2) wrongful conduct in furtherance of the
conspiracy, and (3) damages arising from the wrongful conduct.” Kidron v. Movie
Acquisition Corp., 40 Cal. App. 4th 1571, 1581 (1995). To show the first element, “bare
allegations and rank conjecture do not suffice,” because a plaintiff must show that
defendants “acted in concert and came to a mutual understanding to accomplish a common
and unlawful plan.” AREI II Cases, 216 Cal. App. 4th 1004, 1022 (2013) (internal
quotations and citations omitted).
Here, Plaintiff alleges that SD Bullion and the YouTube Defendants all knew or
should have known that SD Bullion’s low price statement was false, and that they reached
an agreement to conspire over email. Compl. ¶¶ 11-12. However, nothing in the complaint
shows more than “rank conjecture” to prove that the defendants acted towards an unlawful
goal. See AREI II Cases, 216 Cal. App. 4th at 1022. Without some facts plausibly showing
that Defendants had a mutual understanding to commit an unlawful act, Plaintiff has not
overcome the more plausible presumption that Defendants were merely agreeing on the
lawful goal of advertising. See Iqbal, 556 U.S. at 680 (requiring federal courts to look
beyond mere statements of conspiracy for facts that show “plausible suggestion of
conspiracy”). Therefore, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s
civil conspiracy claims.
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F. Motion to Strike
Defendant argues that Plaintiff’s prayer for monetary damages, Prayer 9E, should be
stricken because Plaintiff is limited to equitable relief for California UCL and FAL causes
of action. Mot. at 5. Plaintiff does not address this argument at all in his opposition. By
failing to address this issue, Plaintiff concedes it. See Walsh v. Nevada Dep’t of Human
Resources, 471 F.3d 1033, 1037 (9th Cir. 2006) (holding plaintiff who failed to address
issues raised in defendant’s motion in his opposition brief “has effectively abandoned his
claim, and cannot raise it on appeal”); Stichting Pensioenfonds ABP v. Countrywide Fin.
Corp., 802 F. Supp. 2d 1125, 1132 (C.D. Cal. 2011) (“[F]ailure to respond in an opposition
brief to an argument put forward in an opening brief constitutes waiver or abandonment in
regard to the uncontested issue.”); Lee v. Summit Tr. Servs., LLC, No. CV 19-3814-DMG
(Ex), 2020 WL 1249971, at *3 (C.D. Cal. Jan. 22, 2020) (granting motion to dismiss
because plaintiff’s opposition “[did] not address Defendants’ arguments to dismiss” and
thus “conceded that those claims should be dismissed”).
Even though Plaintiff did not respond to this argument, the Court agrees with
Defendant. “Damages are not available under the False Advertising and Unfair
Competition Laws because restitution is the only available remedy under those statutes.”
Colgan v. Leatherman Tool Grp., Inc., 135 Cal. App. 4th 663, 695 (2006). Further, “[t]he
relief provided by those statutes may involve ‘equitable considerations.’” Id. (internal
quotations and citations omitted). For those reasons, the Court GRANTS Defendant’s
motion to strike and STRIKES any reference to monetary damages from the complaint
IV. CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss is GRANTED in part and
DENIED in part.
At the hearing on this motion, Plaintiff’s counsel stated that the issues in the
complaint could be remedied with leave to amend. Thus, finding that leave to amend would
not be futile, such leave is GRANTED to the counts that were not dismissed with
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prejudice. Plaintiff’s motion for leave to amend is therefore MOOT. Plaintiff may file an
amended complaint on or before February 20, 2026.
IT IS SO ORDERED.
Dated: January 20, 2026
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