In Walmart v. Gardiner, Judge Koh – again and for a final time – held that the CCPA was not retroactive.
Plaintiff [] argues that the allegation that he discovered his PII for sale in 2019 is “clearly the result of scrivener’s error.” (Opp. at 2.) The Court’s previous Order put Plaintiff on notice that his CCPA claim could not survive absent allegations that the violation occurred on or after January 1, 2020. Following that Order, it is not credible that this allegation, which is central to Plaintiff’s CCPA claim, is the result of a typo or misunderstanding. Moreover, Plaintiff employed the same “drafting error” tactic to avoid problematic allegations in his original complaint, which renders his use of the argument here even less credible. Plaintiff’s attempt to amend his complaint through his opposition by casting the allegation as a drafting error and attaching a self-serving declaration is improper. Johnson v. Cty. of Santa Clara, No. 5:18-cv-06264-EJD, 2019 WL 1597488, at *3 (N.D. Cal. Apr. 15, 2019) (“[A] complaint may not be amended by briefs in opposition to a motion to dismiss.”) (quoting Barbera v. WMC Mortg. Corp., 2006 WL 167632, at *2 n. 4 (N.D. Cal. Jan. 19, 2006)).
The Court granted Walmart’s motion to dismiss, with prejudice.