# Pennie Roper v. Big Heart Pet Brands, Inc.

> District Court, E.D. California · December 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10024338

## Case

- **Court:** District Court, E.D. California
- **Decided:** December 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 PENNIE ROPER, individually and on No. 1:19-cv-00406-DAD-BAM
behalf of all others similarly situated,
12
Plaintiff,
13 ORDER GRANTING IN PART AND
v. DENYING IN PART MOTION TO DISMISS
14
BIG HEART PET BRANDS, INC., (Doc. No. 13)
15
Defendant.
16

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18 This matter is before the court on defendant’s motion (Doc. No. 13) to dismiss plaintiff’s
19 complaint. (Doc. No. 1) A hearing on that motion was held on August 20, 2019. (Doc. No. 25.)
20 Attorney Ronald Rothstein appeared telephonically on behalf of defendant and attorneys Michael
21 Reese and Benjamin Heikali appeared telephonically on behalf of plaintiff and the proposed class.
22 (Id.) For the reasons explained below, the court will grant in part and deny in part defendant’s
23 motion to dismiss.1
24 /////

25 1 The undersigned apologizes for the excessive delay in the issuance of this order. This court’s
overwhelming caseload has been well publicized and the long-standing lack of judicial resources
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in this district has reached crisis proportion. Unfortunately, that situation sometimes results in the
27 court not being able to issue orders in submitted civil matters within an acceptable period of time.
This situation is frustrating to the court, which fully realizes how incredibly frustrating it is to the
28 parties and their counsel.
1 BACKGROUND
2 Plaintiff Pennie Roper originally filed her complaint in Stanislaus County Superior Court
3 on February 13, 2019. (Id., Ex. 1 (“Compl.”).) Therein, plaintiff alleges the following:
4 Defendant Big Heart Pet Brands, Inc. has labeled and advertised a series of products (“Products”)
5 with the representations “All Natural.” (Compl. at ¶ 2.) However, the Products allegedly contain
6 non-natural, artificial, and synthetic ingredients including sodium tripolyphosphate (“STPP”),
7 synthetic vitamins and minerals, citric acid, and lactic acid. (Id. at ¶ 4.) Plaintiff and other
8 consumers relied on defendant’s natural representations when purchasing the products and would
9 have either not purchased them or paid significantly less. (Id. at ¶ 6.) At all relevant times,
10 defendant made the natural representations because consumers “perceive all natural foods as
11 better, healthier, and more wholesome.” (Id. at ¶ 22.) Defendant knew what representations it
12 made about the Products and knew what ingredients were added to them since it “formulated and
13 manufactured, or oversaw the formulation and manufacturing of, the Products and then listed all
14 the Products’ ingredients on the packaging.” (Id. at ¶ 24.) The Products are governed by federal
15 regulations that control the labeling of the Products, and some of the ingredients have been
16 federally declared to be synthetic substances. (Id.)
17 Despite being misled, plaintiff would likely repurchase the Products in the future if the
18 Products were reformulated to be free of the allegedly unnatural ingredients. (Id. at ¶ 33.)
19 However, plaintiff will remain unable to rely on the natural representations in the future because
20 she has no way of determining whether the Products would be free of the challenged ingredients.
21 (Id.)
22 Plaintiff brings this case as a class action for all California residents who purchased any
23 of the Products for personal, or household purposes. (Compl. at ¶ 35.) Based upon her
24 allegations, plaintiff asserts seven causes of action, including: (i) Violation of California’s
25 Consumers Legal Remedies Act (“CLRA”); (ii) Violation of California’s Unfair Competition
26 Law (“UCL”); (iii) Violation of California’s False Advertising Law (“FAL”); (iv) Breach of
27 Express Warranty; (v) Breach of Implied Warranty; (vi) Intentional Misrepresentation; and (vii)
28 /////
1 Breach of Quasi-Contract/Unjust Enrichment/Restitution under California Law. (Id. at ¶¶ 46–
2 109.)2
3 On March 29, 2019 this case was removed by defendant from the Stanislaus County
4 Superior Court based on diversity jurisdiction (28 U.S.C. § 1332). (Doc No. 1.) On April 18,
5 2019, defendant filed a motion to dismiss all of plaintiff’s claims. (Doc. No. 13.) On June 4,
6 2019, plaintiff filed her opposition to the motion to dismiss. (Doc. No. 19.) On July 2, 2019,
7 defendant filed its reply. (Doc. No. 21.) On December 16, 2020, plaintiff filed a request for
8 leave to file supplemental authority. (Doc. No. 45.)
9 LEGAL STANDARD
10 A. Motion to Dismiss Pursuant to Rule 12(b)(6)
11 The purpose of a motion to dismiss brought pursuant to Rule 12(b)(6) is to test the legal
12 sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir.
13 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of
14 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901
15 F.2d 696, 699 (9th Cir. 1990). A claim for relief must contain “a short and plain statement of the
16 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Though Rule 8(a)
17 does not require detailed factual allegations, a plaintiff is required to allege “enough facts to state
18 a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
19 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). “A claim has facial plausibility when the
20 plaintiff pleads factual content that allows the court to draw the reasonable inference that the
21 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
22 In determining whether a complaint states a claim on which relief may be granted, the
23 court accepts as true the allegations in the complaint and construes the allegations in the light
24 most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v.
25 United States, 915 F.2d 1242, 1245 (9th Cir. 1989). It is inappropriate to assume that the plaintiff
26 “can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways
27
2 Defendant alleges that it no longer uses the label “All Natural” but instead uses the “Natural”
28 label and that this change occurred prior to plaintiff’s filing of this action. (Doc. No. 21 at 7–8.)
1 that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of
2 Carpenters, 459 U.S. 519, 526 (1983).
3 B. Pleading Fraud Pursuant to Rule 9(b)
4 A complaint alleging fraud must also satisfy heightened pleading requirements. Fed. R.
5 Civ. P. Rule 9(b) (“In alleging fraud or mistake, a party must state with particularity the
6 circumstances constituting fraud or mistake.”). “Fraud can be averred by specifically alleging
7 fraud, or by alleging facts that necessarily constitute fraud (even if the word ‘fraud’ is not used).”
8 Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (citing Vess v. Ciba-Geigy Corp.
9 USA, 317 F.3d 1097, 1107 (9th Cir. 2003)). “When an entire complaint, or an entire claim within
10 a complaint, is grounded in fraud and its allegations fail to satisfy the heightened pleading
11 requirements of Rule 9(b), a district court may dismiss the complaint or claim.” Vess, 317 F.3d at
12 1107.
13 Under Rule 9(b), the “circumstances constituting the alleged fraud [must] be ‘specific
14 enough to give defendants notice of its particular misconduct . . . so they can defend against the
15 charge and not just deny that they have done anything wrong.’” Kearns, 567 F.3d at 1124 (citing
16 Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001)). To satisfy the particularity
17 standard of Rule 9(b), the plaintiff must allege the “‘who, what, when, where, and how’ of the
18 misconduct charged.” Id. (citing Vess, 317 F.3d at 1106).
19 ANALYSIS3
20 A. Intentional Misrepresentation
21 Under California law, the elements of an intentional representation claim are
22 (1) misrepresentation; (2) knowledge of falsity; (3) intent to defraud, i.e., to induce reliance;
23

24 3 Defendant asks the court to invoke the primary jurisdiction doctrine and dismiss this case
pending the California Department of Public Health’s decision whether to incorporate the
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Association of American Feed Control Officials’ definition of “natural” into California law.
(Doc. No. 13 at 31.) As both parties point out, the court has discretion to apply this prudential
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doctrine. (Id.; see also Doc. No. 19 at 26.) The court does not find it judicious to defer resolution
27 of this matter until a possible, but not certain, future action adopting a certain definition of
“natural,” and therefore declines to invoke the doctrine of primary jurisdiction and will instead
28 resolve this motion on the merits.
1 (4) justifiable reliance; and (5) resulting damage. See Helo v. Bank of Am. Servicing Co., No.
2 1:14-cv-01522-LJO-JLT, 2015 WL 4673890, at *3 (E.D. Cal. Aug. 6, 2015) (citing UMG
3 Recording, Inc. v. Bertelsmann AG, 479 F.3d 1078, 1096 (9th Cir. 2007)).
4 Defendant argues that to properly allege an intentional misrepresentation claim “it must be
5 ‘probable that a significant portion of the general consuming public or of targeted consumers,
6 acting reasonably in the circumstances, could be misled.’” (Doc. No. 13 at 18) (citing Lavie v.
7 Procter & Gamble Co., 105 Cal. App. 4th 496, 508 (2003)). Defendant cites to the decision in
8 Hairston v. South Beach Beverages Company, No. CV 12-1429-JFW (DTBx), 2012 WL
9 1893818, at *4 (C.D. Cal. May 18, 2012) in support of the contention that whether a
10 representation is likely to deceive is evaluated in the context of the advertisement as a whole and
11 not based upon a single out-of-context phrase found in one component of the label. (Doc. No. 13
12 at 18.) Defendant further argues that plaintiff cannot plausibly “allege that a reasonable consumer
13 would be deceived into believing that a product does not contain the very ingredients that are
14 disclosed in the front-facing representation-at-issue.” (Id. at 19) (referring to the fact that the
15 label on its product includes “with added vitamins, minerals & nutrients”). Defendant contends
16 that plaintiff did not allege in her complaint that a reasonable consumer would be deceived by the
17 added vitamins, minerals, and nutrients language and argues plaintiff cannot change her argument
18 in response to its motion to dismiss. (Id. at 20.) Even if plaintiff could make this new argument,
19 defendant asserts that “a reasonable consumer would not be likely to understand the label in such
20 a strained manner.” (Id.)
21 Defendant also claims that its representation is entirely accurate because its
22 packaging/description complies with the pet food guidelines of the Association of American Feed
23 Control Officials (“AAFCO”). (Id. at 12.) Defendant notes that processed pet food is regulated
24 by the California Department of Public Health (“CDPH”). (Id. at 16.) Defendant avers that when
25 the CDPH reviews the common names and definitions of pet food ingredients not mentioned in
26 the California Health and Safety Code regulations, it looks to the AAFCO for guidance. (Id. at
27 16) (citing 17 C.C.R § 19005(m)). According to defendant, because the AAFCO guidelines allow
28 for heat processing, chemically synthetic additives that unavoidably occur, and some unnatural
1 vitamins and minerals, “a pet food product may . . . still be labeled as ‘natural’ even when
2 synthetic vitamins and minerals have been added.” (Id. at 17.)
3 Plaintiff takes particular issue with the presence of the ingredients STPP, citric acid, and
4 lactic acid in the Products. (Comp. ¶¶ 4, 19, 25.) Defendant counters that STPP, citric acid, and
5 lactic acid all satisfy the AAFCO’s definition of “natural.” (Doc. No. 13 at 7.) First, defendant
6 contends that STPP is a mineral prepared by dehydration or calcination, both of which are
7 processes deemed natural by the AAFCO. (Id.) Second, defendant contends that citric acid is a
8 naturally occurring preservative produced by recovery from lemon or pineapple juice, by
9 mycological fermentation, and by the solvent extraction process. (Id.) (citing 21 C.F.R.
10 § 184.1033(a)). Third, defendant avers that lactic acid both occurs naturally in several foods and
11 can be produced either by fermentation or hydrolysis. (Id.) (citing 21 C.F.R. § 184.1061(a)).
12 Defendant correctly points out that to state a cognizable claim for intentional
13 misrepresentation, plaintiff must meet the heightened pleading standards of Rule 9 of the Federal
14 Rules of Civil Procedure. (Doc. No. 13 at 23) (citing Helo, 2015 WL 4673890, at *3). Defendant
15 argues that this heightened pleading standard also applies to plaintiff’s UCL, CLRA, and FAL
16 claims because they are likewise grounded in fraud. (Doc. No. 13 at 23) (citing Arabian v.
17 Organic Candy Factory, No. 2:17-cv-05410-ODW-PLA, 2018 WL 1406608, at *3 (C.D. Cal.
18 Mar. 19, 2018)). Defendant thus concludes that its purported compliance with AAFCO
19 regulations; its disclosure of added vitamins, minerals, and nutrients; and the absence of any facts
20 to suggest intent to defraud all combine to defeat plaintiff’s intentional misrepresentation claim.
21 (Id.)
22 In her opposition, plaintiff argues that the CDPH has not incorporated the AAFCO
23 definition of “natural” into California law. (Doc. No. 19 at 11.) Plaintiff argues that the
24 California Code of Regulations § 19005(m) does not address the term natural and “states only that
25 ‘[t]he common names and definitions of other ingredients used in the processing of pet foods
26 shall be those recognized in the Official Publication of Feed Control by the [AAFCO] and/or the
27 U.S. Department of Agriculture.’” (Id.) (quoting CCR. Tit. 17, § 19005(m)). Plaintiff argues that
28 “natural” is not another ingredient. (Doc. No. 19 at 11.) Plaintiff also contends that AAFCO’s
1 guidelines are not an enforceable provision of California law. (Doc. No. 19 at 12.) Plaintiff
2 argues that even assuming the CDPH had incorporated the AAFCO definition of natural, that
3 definition excludes ingredients produced by or subject to a chemically synthetic process. (Id.)
4 Plaintiff contends that the AAFCO guidelines likewise “expressly prohibit the use of the term
5 ‘All Natural’ on a pet food label unless the product is composed entirely of natural ingredients.”
6 (Id.) Plaintiff asks the court to ignore defendant’s allegations that STPP is a mineral. (Id. at 13)
7 (citing Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018)). Plaintiff
8 similarly asks the court to disregard defendant’s arguments that citric acid and lactic acid can be
9 made naturally because finding these facts true would “ignore the well-established principle that
10 courts should accept non-conclusory factual allegations in the light most favorable to plaintiff.”
11 (Id.) (citing Friedman v. AARP, Inc., 855 F.3d 1047, 1051 (9th Cir. 2017)).4
12 Plaintiff also notes that defendant bears the burden of showing that she could not plausibly
13 prove that a reasonable consumer would be deceived by the product packaging. (Id.) (citing Reid
14 v. Johnson & Johnson, 780 F.3d 952, 958 (9th Cir. 2015)). In this regard, plaintiff argues that
15 consumers do not generally understand that added vitamins and minerals are synthetic. (Doc. No
16 19 at 16) (citing Grimm v. APN, Inc., No. SACV 17-00356 JVS (JCGx), 2017 WL 6060624, at
17 *3–4 (C.D. Cal. Nov. 20, 2017)). Plaintiff avers that regardless of whether the use of the term
18 “All Natural” as a modifier is deceptive, “[q]uestions of how consumers interpret terms or phrases
19 are factual inquiries best suited” for resolution not on a motion to dismiss but at a later stage of
20 the litigation. (Doc. No. 19 at 17) (citing Hall v. Diamond Foods, Inc., No. C-14-2148 MC, 2014
21 WL 3779012, at *3 (N.D. Cal. July 31, 2014)).
22 Finally, plaintiff argues that her allegations in support of her fraud claims satisfy Federal
23 Rule of Civil Procedure 9(b) for three reasons. First, because “plaintiffs may aver scienter . . .
24 simply by saying scienter existed.” (Doc. No. 19 at 20) (quoting Odom v. Microsoft Corp., 486
25 F.3d 541, 554 (9th Cir. 2007)). Plaintiff contends that she has alleged defendant knew or
26 recklessly disregarded the fact that its claims of selling “natural” products were deceptive, that
27
4 However, plaintiff appears to concede that the court could find citric and lactic acid to be
28 natural. (Doc. No. 19 at 14.)
1 defendant intended plaintiff to rely on those claims in purchasing the products, and that that is all
2 Rule 9(b) requires. (Id.) Second, plaintiff argues that she has in fact plausibly alleged a
3 misrepresentation by defendant. (Id.) Third, plaintiff asks this court to follow the holding in Van
4 Mourik v. Big Heart Pet Brands, Inc., No. 3:17-cv-03889, 2018 WL 1116715, at *4 (N.D. Cal.
5 Mar. 1, 2018), in which that court found that an identical complaint to the one in this action
6 properly alleged the “when,” “what,” and “how” of the fraud claim asserted. (Id.).5 Accordingly,
7 plaintiff argues that the allegations of her complaint are sufficient to allow defendant to prepare
8 an answer and that her fraud claims should not be dismissed. (Doc. No. 19 at 21.)
9 In its reply, defendant contends that the CDPH recognizes AAFCO’s official publication
10 as the definitive reference for pet food ingredients when not defined by California law. (Doc. No.
11 21 at 9.) Moreover, defendant argues that plaintiff has failed to plausibly allege that STPP, citric
12 acid, and lactic acid are not natural, accusing plaintiff of pursuing a strategy of “file first, ask
13 questions later.” (Id.) Defendant also again argues that no reasonable consumer would find the
14 product label in question misleading and asks this court to find the reasoning by the district court
15 in Hairston, 2012 WL 1893818 to be more persuasive than the reasoning espoused in Van
16 Mourik, 2018 WL 1116715. (Doc. No. 21 at 11.) Ultimately, defendant asserts that courts have
17 recognized the distinction between “all natural” labels reflecting qualifying disclaimers, as the
18 labels for the Products here do, and those that do not. (Id. at 12.)
19 Defendant also reiterates in its reply that plaintiff’s intentional misrepresentation, UCL,
20 FAL, and CLRA claims all “sound in fraud and are subject to Rule 9(b).” (Id. at 14.) Although
21 Rule 9(b) permits knowledge and intent to be pled in general terms, defendant argues that a
22 plaintiff still must “allege sufficient underlying facts from which a court may reasonably infer
23 that a party acted with the requisite state of mind.” (Id.) (quoting San Francisco Tech.., Inc. v.
24 Colgate-Palmolive Co., No. 5:10-cv-05201-JF/PSG, 2011 WL 940973, at *2 (N.D. Cal. Mar. 18,
25 /////
26
5 Van Mourik v. Big Heart Pet Brands, Inc., No. 3:17-cv-03889, 2018 WL 1116715 (N.D. Cal.
27 March 1, 2018) is a case with essentially identical factual allegations as are presented by plaintiff
in this case, albeit by a different plaintiff, which was filed in the Northern District of California
28 and transferred to the Southern District of Texas.
1 2011)). Defendant characterizes plaintiff’s allegations in support of these claims as conclusory
2 and insufficient under Rule 9(b). (Doc. No. 21 at 14.)
3 In California, processed pet food is subject to California Health and Safety Code § 113025
4 and regulated by the CDPH. As an initial matter, the court concludes that there is no binding
5 definition of “natural” in this context under California law. Although defendant correctly avers
6 that the CDPH looks to the AAFCO for guidance regarding common definitions of pet food
7 ingredients, plaintiff is correct that the AAFCO’s guidelines are not an enforceable provision of
8 California law. See Cal. Gov. Code § 11340.5. Regardless, even if ingredients that go through
9 heat processing, include unavoidable chemically synthetic additives, or include some unnatural
10 vitamins and minerals could be considered natural under the AAFCO guidelines, that does not
11 mean it is always so. In the absence of a binding definition of “natural” in this context under
12 California law, plaintiff’s complaint is not subject to dismissal at the pleading stage where the
13 court is to construe the allegations of the complaint in the light most favorable to the plaintiff.
14 See Hishon, 467 U.S. at 73. Likewise, the court finds plaintiff’s claim that a reasonable consumer
15 would find the label “natural” to be misleading, even with the qualifying language “with added
16 vitamins, minerals & nutrients,” to be plausible. Even if citric acid, lactic acid, and STPP could
17 be made naturally, here plaintiff alleges that these ingredients were not produced naturally, and
18 the court must accept those non-conclusory factual allegations of the complaint in the light most
19 favorable to plaintiff. See Friedman, 855 F. 3d 1047; see also Gregoria v. The Clorox Co., No.
20 17-CV-03824-PJH, 2018 WL 732673, at *4–5 (N.D. Cal. Feb. 6, 2018) (reaching a similar
21 conclusion in the context of “naturally derived” detergent); Organic Consumers Ass’n v.
22 Sanderson Farms, Inc., No. 17-CV-03592-RS, 2018 WL 922247, at *6 (N.D. Cal. Feb. 9, 2018)
23 (reaching a similar conclusion in the context of “natural” poultry). The court agrees that
24 questions regarding how consumers interpret terms or phrases on product labels are factual
25 inquiries best suited for resolution at a later stage of the litigation and not on a motion to dismiss.
26 Hall, 2014 WL 3779012, at *3.
27 The court also finds that plaintiff’s complaint satisfies Rule 9(b) with respect to its
28 allegation of fraud. As the district court in Van Mourik observed:
1 “A pleading is sufficient under rule 9(b) if it identifies the
circumstances constituting fraud so that a defendant can prepare an
2 adequate answer from the allegations.” Moore v. Kayport Package
Exp., Inc., 885 F.2d 531, 540 (9th Cir. 1989). That rule “may be
3 relaxed as to matters within the opposing party’s
knowledge.” Id. While conclusory allegations with no
4 “particularized supporting detail” do not suffice, the 9(b) “standard
does not require absolute particularity or a recital of the evidence. . ..
5 [A] complaint need not allege ‘a precise time frame,’ ‘describe in
detail a single specific transaction’ or identify the ‘precise method’
6 used to carry out the fraud.” United States v. United Healthcare Ins.
Co., 848 F.3d 1161, 1180 (9th Cir. 2016) (citing Cooper v. Pickett,
7 137 F.3d 616, 627 (9th Cir. 1997)) (other citations omitted).
8 2018 WL 1116715 at *4.
9 Exhibit A to the complaint in this case includes a spreadsheet containing images and
10 ingredient lists with respect to all the challenged products. (Doc. No. 1-1 at 33.) As to each of
11 those products, plaintiff identifies the alleged misleading representations with sufficient
12 particularity by producing full lists of ingredients with the allegedly non-natural ingredients in
13 bold typeface. (Id.) Plaintiff also alleges that defendant made the misrepresentations knowingly
14 and purposefully and that defendant was aware that some of the ingredients had been federally
15 declared to be synthetic. (Id. at 4, 17.) As for the “why,” plaintiff alleges that defendant made
16 misrepresentations because consumers perceive all-natural foods as better and healthier. (Id. at
17 17.) The allegations of the complaint clearly explain why these representations are deceptive and
18 misleading. Because plaintiff has alleged the misrepresentations with sufficient particularity, she
19 meets the Rule 9(b) standard with respect to those claims. See Van Mourik, 2018 WL 1116715 at
20 *4.
21 Defendant makes much of the fact that plaintiff uses outdated information in her
22 complaint. Defendant argues that plaintiff’s complaint cites to an old version of the Products and
23 that the current version of the label no longer uses the term “All Natural” but instead only lists the
24 Products as “Natural.” (Doc. No. 21 at 7–8.) Defendant asserts that plaintiff “may not re-plead
25 her causes of action in her Opposition” to correct her complaint. (Id. at 8) (citing Strome v.
26 DBMK Enters., Inc., No. C 14-2398 SI, 2014 WL 4437777, at *4 (N.D. Cal. Sept. 9, 2014)).
27 Defendant also contends that plaintiff did not address the statement “with added vitamins,
28 minerals, and nutrients” in her complaint and cannot post hoc justify her failure to do so, which
1 undercuts the plausibility of her claims. (Doc. No. 21 at 8.) Defendant’s points are potentially
2 well taken in that it appears to be undisputed that defendant’s Products no longer bear the “All
3 Natural” label. However, in her complaint, plaintiff alleges she purchased her Products in 2016,
4 before defendant changed the labeling. Thus, her claims for past damages incurred remain viable.
5 (Doc. No. 1-1 at 5.) In any event, the court cannot consider evidence in assessing the sufficiency
6 of a complaint under Rule 12(b)(6) and will therefore not consider the alleged label changes in
7 ruling on the pending motion. See Khoja., 899 F.3d at 998.
8 For these reasons, the court will deny defendant’s motion to dismiss plaintiff’s intentional
9 misrepresentation cause of action.6
10 B. Plaintiff Has Standing to Seek Injunctive Relief
11 In opposing the pending motion to dismiss, plaintiff argues that she is subject to a risk of
12 future harm sufficient to support her standing to seek injunctive relief. (Doc. No. 19 at 22.)
13 Plaintiff seeks injunctive relief under the CLRA, the UCL, and the FAL. Because plaintiff’s
14 standing in this regard is crucial to her CLRA, UCL, and FAL claims, the court addresses the
15 standing arguments before considering the pending motion to dismiss those specific claims.
16 Defendant argues that in order to seek injunctive relief a plaintiff must show a sufficient
17 likelihood that she will be wronged in a similar way in the future and that the allegations of
18 plaintiff’s complaint do not do so here. (Doc. No. 13 at 25.) As noted, defendant contends that
19 plaintiff seeks to enjoin defendant from using the representations “All Natural” in the future, but
20 defendant contends that it no longer employs that representation on its labels at all. (Id. at 26.)
21 Accordingly, defendant reasons there is no risk that plaintiff will be wronged in a similar way in
22 the future. Defendant also argues that plaintiff is now well aware of the basis for its “natural”
23 representations and therefore cannot claim she would be misled by those representations in the
24 future. (Doc. No. 13 at 26) (citing Broomfield, 2017 WL 3838453, at *11–12).
25 /////
26
6 The recent order plaintiff cites in her request for leave to file supplemental authority reached a
27 nearly identical conclusion, albeit applying Second Circuit law not binding on this court. (See
Doc. No. 45) (citing Acquard, et al. v. Big Heart Pet Brands, Inc., No. 19-cv-50-JLS-HKS
28 (W.D.N.Y)).
1 Plaintiff first contends that defendant’s assertions regarding its ceasing usage of the “All
2 Natural” representation on the Products are not properly before the court and should not be
3 considered. (Doc. No. 19 at 22) (citing Khoja, 899 F. 3d at 998). Second, plaintiff argues that
4 under Ninth Circuit precedent “knowledge that the advertisement or label was false in the past
5 does not equate to knowledge that it will remain false in the future.” (Doc. No. 19 at 22) (citing
6 Davidson v. Kimberly-Clark Corp., 889 F. 3d 956, 969 (9th Cir. 2018)). Accordingly, plaintiff
7 asserts that the Ninth Circuit has expressly rejected defendant’s position that she lacks standing
8 merely because she now knows that defendant’s “natural” representations are deceptive. (Doc.
9 No. 19 at 22.)
10 In reply, defendant claims that nothing in the decision in Davidson “suggests the Ninth
11 Circuit created a freestanding right to seek injunctive relief based on conduct that has ended.”
12 (Doc. No. 21 at 15) (quoting Bruton v. Gerber Prod. Co., 2018 WL 1009257, at *7 (N.D. Cal.
13 Feb. 13, 2018)). Defendant argues that because it no longer uses the “All Natural” label, plaintiff
14 lacks standing and that because plaintiff alleges she would only purchase the Products in the
15 future if defendant reformulated them, granting her requested injunctive relief requiring a change
16 to its label would not in fact provide plaintiff relief. (Doc. No. 21 at 15.) Defendant urges the
17 court to dismiss plaintiff’s claims for injunctive relief under the CLRA, UCL, and FAL. The
18 court finds defendant’s arguments unpersuasive on this point.
19 As the Ninth Circuit has recognized, “[a] previously deceived consumer may have
20 standing to seek an injunction against false advertising or labeling, even though the consumer
21 now knows or suspects that the advertising was false at the time of the original purchase.”
22 Davidson, 889 F.3d at 969; see also Moore v. Mars Petcare US, Inc., 966 F.3d 1007, 1021 n.13
23 (9th Cir. 2020). An actionable cognizable injury exists where a plaintiff alleges that they cannot
24 rely on defendant’s labeling when deciding whether to purchase products in the future. Davidson,
25 889 F.3d at 970–71. The undersigned finds that plaintiff’s allegations of future harm presented in
26 the pending complaint fit squarely into the categories recognized by the Ninth Circuit. Moreover,
27 even if defendant changed its label from reading “All Natural” to “Natural,” the court does not
28 find at the motion to dismiss stage a sufficient basis upon which to conclude that all harmful
1 conduct has ceased. See, e.g., Grimm v. APN, Inc., No. SACV 17-00356 JVS (JCGx), 2017 WL
2 6060624, at *3 (C.D. Cal. Nov. 20, 2017) (“At this stage, it is ambiguous whether [“Natural food
3 for dogs with added vitamins & minerals”] represent that the added vitamins and minerals are
4 natural or synthetic.”) The court therefore finds that plaintiff’s claims for injunctive relief survive
5 defendant’s motion to dismiss.7
6 C. Violation of the California Legal Remedies Act (“CLRA”), Unfair
Competition Law (“UCL”), and California Fair Advertising Law (“FAL”)
7
8 Claims brought under the CLRA, UCL, or the FAL are governed by the “reasonable
9 consumer test.” Williams v. Gerber Products Co., 552 F.3d 934, 938 (9th Cir. 2008).
10 Additionally, the California Supreme Court recognized in Kasky v. Nike, Inc., 27 Cal. 4th 939,
11 950 (2002) that California’s consumer protection laws prohibit not only advertising which is
12 false, but also that which is either actually misleading or which has a capacity, likelihood, or
13 tendency to deceive or confuse the public. See Munning v. Gap, Inc., No. 16-cv-03804-TEH,
14 2016 WL 6393550, at * 4 (N.D. Cal Oct. 28, 2016). With that in mind, the court turns to the
15 parties’ arguments regarding the sufficiency of plaintiff’s claims as alleged.
16 1. Violation of California’s False Advertising Law (“FAL”)
17 Defendant argues that a “plaintiff seeking equitable relief in California must establish that
18 there is no adequate remedy at law available.” (Doc. No. 13 at 33) (quoting Munning v. Gap,
19 Inc., 238 F. Supp. 3d 1195, 1203 (N.D. Cal. 2017)). Accordingly, defendant contends that in
20 order to plead a cognizable UCL or FAL claim, plaintiff is required to allege facts showing that
21 she has no adequate remedy at law. (Id.) (citing Heighley v. J.C. Penney Life Ins. CO., 257 F.
22

23 7 The recent order in Acquard, et al. v. Big Heart Pet Brands, Inc., No. 19-cv-50-JLS-HKS
(W.D.N.Y) cited by plaintiff in her request for leave to file supplemental authority found that the
24 plaintiffs in that case lacked standing to seek injunctive relief because they would only buy a
reformulated product. (Doc. No. 45-1 at 17.) The undersigned disagrees with that reasoning,
25
both for the reasons expressed above and because plaintiff simply will not be able to know if the
Products have been reformulated should their labeling continue to be misleading. In this way, the
26
formula (or the ingredients) and the label are tied hand in hand. The undersigned does not find
27 plaintiff’s allegation in her complaint that she would purchase a reformulated product to be
sufficiently conclusive as to deny her and the future class all standing with regard to injunctive
28 relief.
1 Supp. 2d 1241, 1259 (C.D. Cal. 2003)). Defendant contends that the UCL and FAL provide only
2 for equitable relief. (Id.) (citing Munning, 238 F. Supp. 3d at 1203–04). Defendant argues that
3 because plaintiff could seek money damages for breach of contract, breach of warranty, or
4 violation of the CLRA, she has an adequate remedy at law and may not seek equitable relief.
5 (Doc. No. 13 at 33.)
6 Plaintiff counters that defendant’s argument conflicts with the plain words of Rule 8(a)(3)
7 of the Federal Rules of Civil Procedure, which allows her to plead her claims in the alternative.
8 (Doc. No. 19 at 29.) Plaintiff also contends that defendant has not established that she has an
9 adequate remedy at law because “even if [p]laintiff successfully obtains monetary relief for
10 herself and putative class members, consumers will still be injured from [d]efendant’s deceptive
11 labeling practices in the future.” (Id.)
12 In reply, defendant asserts that plaintiff has pleaded her damages claims jointly with her
13 equitable relief claims, and not in the alternative. (Doc. No. 21 at 19) (citing Grossman v. Schell
14 & Kampeter, Inc., No. 2:18-cv-02344-JAM-AC, 2019 WL 1298997, at *7 (E.D. Cal. Mar. 21,
15 2019)). Defendant also responds to plaintiff’s contention that she may not have an adequate
16 remedy at law by arguing that where the claims pleaded may entitle a plaintiff to a remedy at law,
17 equitable relief is unavailable. (Doc. No. 21 at 20) (citing Rhynes v. Stryker Corp., No. 10-5619
18 SC, 2011 WL 2149095, at *4 (N.D. Cal. May 31, 2011)).
19 Defendant’s motion to dismiss both the FAL and the UCL claims hinges on the question
20 of whether plaintiff may request injunctive relief in addition to her claims for legal remedies. The
21 court concludes that plaintiff may do so. The controlling case in this circuit on this point is
22 Sonner v. Premier Nutrition Corp., 971 F.3d 834 (9th Cir. 2020). In Sonner, the Ninth Circuit
23 held that a plaintiff “must establish that she lacks an adequate remedy at law before securing
24 equitable restitution for past harm under the UCL and CLRA.” Id. at 844. Although it dealt only
25 with equitable claims for restitution premised on past harms, the undersigned concludes that the
26 decision in Sonner did not “cabin the subject requirement to equitable claims for non-injunctive
27 relief.” See IntegrityMessageBoards.com v. Facebook, Inc., No. 18-cv-05286, 2020 WL
28 6544411, at *5 (N.D. Cal. Nov. 6, 2020) (holding that the decision in Sonner relied on Supreme
1 Court jurisprudence that did not draw any distinction among the various forms of equitable
2 relief). As in IntegrityMessageBoards.com, plaintiff here lacks an adequate legal remedy for
3 future harm. The allegations of the complaint before the court identify the misrepresentations at
4 issue, namely that “[d]efendant has falsely and deceptively labeled and advertised the Products
5 with the . . . representations: ‘All Natural,’ ‘All Natural Dog Food,’ and/or ‘All Natural Cat
6 food.’” (Compl. at ¶ 4.) These allegations, although addressing a past wrong, provide sufficient
7 detail to support, by way of inference, an alleged practice of false advertising with respect to the
8 Products. See Aerojet Rocketdyne, Inc. v. Global Aerospace, Inc., No. 2:17-cv-01515-KJM-AC,
9 2020 WL 3893395, at *5 (E.D. Cal. July 10, 2020). Although monetary damages may ultimately
10 fully address plaintiff’s harm, at this stage of the litigation there is “an ongoing, prospective
11 nature to [plaintiff’s allegations]” given her contention that she and other future purchasers will
12 continue to be misled. Id. Taken together, and viewed in the light most favorable to plaintiff, the
13 allegations of the complaint are “sufficient to suggest a likelihood of future harm amenable to
14 injunctive relief.” Id.; see also IntegrityMessageBoards.com, 2020 WL 6544411, at *7 (holding
15 that plaintiff’s inability to rely on Facebook’s future representations justified a claim for
16 injunctive relief because future money damages could not be proven with certainty). Just as in
17 IntegrityMessageBoards.com, “the court has not certified any class . . .. Given that, the scope of
18 any class, the identities of its members, and their respective . . . purchasing practices also remain
19 unknown.” 2020 WL 6544411, at *7.
20 The court concludes that plaintiff may pursue her equitable claims for injunctive relief to
21 the extent they are premised on alleged future harm. Because plaintiff both has standing to seek
22 injunctive relief and has sufficiently alleged that she has no adequate remedy at law, the court will
23 deny defendant’s motion to dismiss with respect to plaintiff’s FAL claim.
24 2. Violation of California’s Consumers Legal Remedies Act (“CLRA”)
25 Defendant next argues that plaintiff has failed to comply with the notice requirements
26 mandated by the CLRA, and the court should therefore dismiss all damages claims arising from
27 plaintiff’s CLRA cause of action. (Doc. No. 13 at 33) (citing Munning v. Gap, Inc., No. 16-cv-
28 03804-TEH, 2016 WL 6393550, at *4 (N.D. Cal. Oct. 28, 2016)). Defendant cites to California
1 Civil Code § 1782 for the proposition that “at least 30 days prior to commencing an action for
2 damages under the CLRA, the consumer must (1) notify the person alleged to have committed the
3 violations, and (2) demand that the person ‘correct, repair, replace or otherwise rectify the goods
4 or services’ in question.” (Doc. No. 13 at 33.) Defendant asserts that a “claim for damages under
5 the CLRA requires strict compliance with the notice requirements set forth in § 1782.” (Id.)
6 (quoting Laster v. T-Mobile USA, Inc., 407 F. Supp. 2d 1181, 1196 (S.D. Cal. 2005), aff’d, 252 F.
7 App’x 777 (9th Cir. 2007) (emphasis in original)). Defendant concludes that because plaintiff did
8 not comply with the notice requirement, her CLRA claim for damages should be dismissed.
9 (Doc. No. 13 at 34.)
10 Defendant misconstrues the allegations of plaintiff’s complaint. Although a plaintiff
11 seeking damages under the CLRA must provide notice to the defendant under California Civil
12 Code § 1782(a), plaintiff’s complaint clearly states that her CLRA claim is “for injunctive relief
13 only.” (Doc. No. 1-1 at 21.) CLRA claims for injunctive relief need not comply with the notice
14 requirement. See Cal. Civ. Code § 1782(d) (“An action for injunctive relief brought under the
15 specific provisions of Section 1770 may be commenced without compliance with subdivision
16 (a).”); see also Meyer v. Sprint Spectrum L.P., 45 Cal. 4th 634, 644 (2009) (“Thus, section 1782,
17 subdivision (d) contemplated the filing of a CLRA action for injunctive relief alone, and such
18 actions are not subject to the requirements of subdivisions (a) and (b) of notice and allowance for
19 voluntary correction.”) Because plaintiff here seeks only injunctive relief, defendant’s arguments
20 regarding the notice requirement are inapplicable. The court will deny defendant’s motion to
21 dismiss plaintiff’s CLRA claim.
22 3. Violation of California’s Unfair Competition Law (“UCL”)
23 California’s UCL prohibits “any unlawful, unfair or fraudulent business act or practice.”
24 Cal. Bus. & Prof. Code § 17200 et seq. The three aforementioned “prongs” each maintain a
25 distinct theory of liability and basis for relief. See Cel-Tech Commc’ns, Inc. v. Los Angeles
26 Cellular Tel. Co., 20 Cal. 4th 163, 180 (1999); see also Lozano v. AT&T Wireless Servs., Inc.,
27 504 F.3d 718, 731 (9th Cir. 2007).
28 /////
1 a. Fraudulent Prong
2 To advance a theory of fraud under the UCL, a plaintiff must allege facts showing that
3 reasonable members of the public are likely to be deceived by the allegedly fraudulent conduct.
4 See Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1169 (9th Cir. 2012). And “[t]o properly
5 plead fraud with particularity under Rule 9(b), ‘a pleading must identify the who, what, when,
6 where, and how of the misconduct charged, as well as what is false or misleading about the
7 purportedly fraudulent statement . . ..’” Scott v. Bluegreen Vacations Corp., No. 1:18-cv-649-
8 AWI-EPG, 2018 WL 6111664, at *5 (E.D. Cal. Nov. 21, 2018) (quoting Davidson v. Kimberly-
9 Clark Corp., 889 F.3d 956, 964 (9th Cir. 2018)).
10 Defendant argues that plaintiff does not adequately allege how the “All Natural”
11 representations are false. (Doc. No. 13 at 27.) Particularly, defendant argues that plaintiff has
12 failed to sufficiently allege falsity because she never “alleges that the Products fail to meet the
13 AAFCO guidelines on labeling pet food ‘natural.’” (Id.) (citing Chuang v. Dr. Pepper Snapple
14 Grp., Inc., 2017 WL 4286577, at *4 (C.D. Cal. Sept. 20, 2017)). In short, defendant links its
15 argument with regard to the insufficiency of the intentional misrepresentation allegations to its
16 fraudulent prong argument.
17 In her opposition, plaintiff avers that “the natural representations are both false and
18 misleading because the ingredients (including the non-vitamin ingredients challenged) are not
19 natural.” (Doc. No. 19 at 23.)
20 In its reply, defendant argues that it is plaintiff’s burden to plead a reasonable consumer
21 would be misled and she has not done so. (Doc. No. 21 at 16.)
22 For the same reasons expressed as to why the motion to dismiss should be denied with
23 regard to plaintiff’s intentional misrepresentation claim, the court will likewise deny defendant’s
24 motion to dismiss plaintiff’s UCL claim under the fraudulent prong.
25 b. Unfair Prong
26 Both parties agree that California courts employ three different tests in determining
27 whether a business practice is “unfair” under the UCL: the balancing test, the FTC test, and the
28 public policy test. See Allen v. Hyland’s, Inc., No. CV 12-1150 DMG (MANx), 2016 WL
1 4402794, at *3 (C.D. Cal. Aug. 16, 2016). The balancing test determines whether the alleged
2 practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers
3 and requires the court to weigh the utility of the defendant’s alleged conduct against the gravity of
4 the harm to the alleged victim. Drum v. San Fernando Valley Bar Ass’n, 182 Cal. App. 4th 247,
5 257 (2010). The FTC test draws on the definition of unfair appearing in § 5 of the Federal Trade
6 Commission Act and requires that: (1) the consumer injury be substantial; (2) the injury must not
7 be outweighed by any countervailing benefits to consumers or competition; and (3) it must be an
8 injury that consumers themselves could not reasonably have avoided. Drum, 182 Cal. App. 4th at
9 257. Finally, the public policy test requires that the public policy which is a predicate to a
10 consumer unfair competition action under the “unfair” prong of the UCL must be tethered to
11 specific constitutional, statutory, or regulatory provisions. Id. at 256.
12 Defendant argues that plaintiff here fails to state a claim under the balancing test because
13 plaintiff never alleges that: “1) the Products do not function as intended; 2) she has suffered any
14 ‘substantially injurious effects’ or any ‘grave harm’ from using the Product; 3) she used the
15 Product at all; 4) or any specific ill-effects.” (Doc. No.13 at 28.) Defendant also argues that
16 plaintiff has failed to state a cognizable claim under the FTC test because she alleges an injury
17 that she could have reasonably avoided. (Doc. No. 13 at 28) (citing Daugherty v. Am. Honda
18 Motor Co., Inc., 144 Cal. App. 4th 824, 839 (2006)). Finally, defendant argues that plaintiff fails
19 to state a cognizable claim under the public policy test because her complaint “fails to ‘identify an
20 actual policy based on a legal provision that the defendant violated.’” (Doc. No. 13 at 28)
21 (quoting Hodges v. Apple Inc., No. 13-cv-01128-WHO, 2013 WL 4393545, at *6 (N.D. Cal. Aug.
22 12, 2013)).
23 Plaintiff argues that defendant’s contention that its conduct is not unfair presents a dispute
24 of fact that cannot be resolved by way of a motion to dismiss. (Doc. No. 19 at 23–24) (citing
25 Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1171 (9th Cir. 2012)). Plaintiff also argues
26 that she nevertheless meets all three tests under the UCL. First, she contends that her complaint
27 alleges that “defendant’s conduct deceives consumers as to the nutritional characteristics of the
28 Products and far outweighs any benefit to consumers.” (Doc. No. 19 at 24.) Second, she avers
1 that she has met the FTC test because she alleges that she and other consumers would not have
2 purchased the Products but for the misrepresentations. (Id.) Plaintiff also contends that she could
3 not have reasonably avoided her injury because she had no way of knowing the Product was not
4 truly natural, thus she meets that aspect of the FTC test as well. (Id.) Finally, plaintiff argues that
5 defendant’s conduct is unfair under the public policy test because she “tethered her UCL claim to
6 a violation of the CLRA or FAL . . . which were enacted to protect consumers from deceptive
7 advertising.” (Id.) (citing Cal. Civ. Code § 1760 and In re 5-hour ENERGY Mktg. & Sales
8 Practices Litig., No. MDL 13-2438 PSG (PLAx), 2014 WL 5311272, at *26 (C.D. Cal. Sept. 4,
9 2014)).
10 In reply, defendant argues that plaintiff’s reliance on the decision in Davis is misplaced
11 because the Ninth Circuit also stated in that case that the court would “affirm a judgment of
12 dismissal where the complaint fails to allege facts showing that a business practice is unfair.”
13 (Doc. No. 21 at 16) (quoting Davis, 691 F. 3d at 1170–71). Defendant reiterates that plaintiff’s
14 complaint with respect to this claim does not satisfy the balancing test, the FTC test, or the public
15 policy test, because plaintiff has not adequately pleaded fraud. (Doc. No. 21 at 16–17.)
16 The court need not decide which definition of unfair conduct should apply in assessing the
17 sufficiency of plaintiff’s complaint because it concludes that what qualifies as “unfair” with
18 respect to plaintiff’s UCL claim involves a question of fact and plaintiff’s complaint sufficiently
19 alleges facts showing that a business practice is unfair. See Davis, 691 F.3d at 1170. Just like the
20 plaintiffs in In re 5-hour ENERGY Mktg. & Sales Practice Litig., plaintiff here has alleged that
21 defendant violated the unfair prong of the UCL by making misrepresentations on the label of the
22 Products, and plaintiff tethers that claim to her FAL and CLRA claims. 2014 WL 5311272, at
23 *26.8 As defendant points out, plaintiff’s UCL claim is therefore based on the same purported
24 conduct underlying her fraud claim because the CLRA and FAL claims must satisfy Rule 9(b).
25 (Doc. No. 21 at 17) (citing Hadley v. Kellogg Sales Co., 243 F. Supp. 3d 1074, 1104–05 (N.D.
26

27 8 The court in In re 5-hour ENERGY Mktg. & Sales Practice Litig. dismissed plaintiffs’ UCL
claims in that case because their CLRA and FAL claims did not satisfy Rule 9(b). See 2014 WL
28 5311272, at *26. The same is not the case here.
1 Cal. 2017)). If plaintiff’s fraud claim ultimately fails, so too might her UCL claim. (Id.)
2 However, because plaintiff has sufficiently alleged cognizable fraud claims for the reasons
3 discussed above, her UCL “unfair” prong claim likewise survives the pending motion to dismiss.
4 The court will therefore deny defendant’s motion to dismiss plaintiff’s claims under the “unfair”
5 prong of the UCL.
6 c. Unlawful Prong
7 “To state a claim under the unlawful prong of the UCL, a plaintiff must plead: (1) a
8 predicate violation, and (2) an accompanying economic injury caused by the violation.” Shelton
9 v. Ocwen Loan Servicing, LLC, No. 18-CV-02467-AJB-WVG, 2019 WL 4747669, at *10 (S.D.
10 Cal. Sept. 30, 2019). “By proscribing any unlawful business practice, the UCL borrows
11 violations of other laws and treats them as unlawful practices that the unfair competition law
12 makes independently actionable.” Alvarez v. Chevron Corp., 656 F.3d 925, 933 n.8 (9th Cir.
13 2011) (alterations and citations omitted). “Virtually any law—federal, state or local—can serve
14 as a predicate for an action under [the UCL].” Hadley v. Kellogg Sales Co., 243 F. Supp. 3d
15 1074, 1094 (N.D. Cal. 2017) (quoting Smith v. State Farm Mut. Auto. Ins. Co., 93 Cal. App. 4th
16 700, 718 (2001)). Where an “unlawful” UCL claim sounds in fraud, it too must meet Rule 9(b)’s
17 pleading standards. Hadley, 243 F. Supp. 3d at 1094.
18 Defendant moves to dismiss plaintiff’s UCL claim on the ground that it fails under the
19 unlawful prong because plaintiff fails to “allege that Defendant has violated any applicable law.”
20 (Doc. No. 13 at 29.) On this point, defendant argues first that plaintiff’s reference to 58 Fed. Reg.
21 2303, 2407 (Jan. 6, 1993) is irrelevant because that regulation only applies to human food
22 products. (Id.) Second, defendant argues that plaintiff’s reference to 7 C.F.R. § 205.2 likewise
23 fails to satisfy the unlawful prong because the definitions in that regulation relate only to human
24 or livestock, not pet, consumption. (Id.) Defendant also contends that plaintiff may not rely on
25 an alleged CLRA or FAL violation as the underlying unlawful act because the proof necessary to
26 establish a violation of the CLRA is the same proof that would establish a violation of the
27 unlawful prong of the UCL. (Id. at 29–30) (citing Faulk v. Sears Roebuck and Co., 2013 WL
28 1703378, at *10 (N.D. Cal. Apr. 19, 2013)).
1 In opposition, plaintiff asserts that she does not allege violations of 58 Fed. Reg. 2303 or 7
2 C.F.R. § 205.2 as the predicate violations of the UCL. (Doc. No. 19 at 25.) Rather, plaintiff
3 contends that her UCL claim is based on alleged predicate violations of the CLRA and FAL. (Id.)
4 Plaintiff further contends that courts have “consistently held that the CLRA and FAL can serve as
5 predicate violations of the UCL.” (Id.) (citing MacDonald v. Ford Motor Co., 37 F. Supp. 3d
6 1087, 1097 (N.D. Cal. 2014); Zeiger v. WellPet LLC, 304 F. Supp. 3d 837, 852 (N.D. Cal. 2018)).
7 In its reply, defendant argues only that because plaintiff’s CLRA and FAL claims fail, her
8 UCL unlawful claim fails as well. (Doc. No. 21 at 18.)
9 “[V]irtually any state, federal or local law can serve as the predicate for an action under
10 section 17200.” People ex rel. Bill Lockyer v. Fremont Life Ins. Co., 104 Cal. App. 4th 508, 515
11 (2002) (citing Podolsky v. First Healthcare Corp. 50 Cal. App. 4th 632, 647 (1996). Just as in
12 Zeiger, plaintiff here has “stated claims for violations of the CLRA and FAL, so these claims may
13 serve as predicate violations for a claim under the UCL’s ‘unlawful’ prong.” 304 F. Supp. 3d at
14 852. Other district courts in this circuit have recognized that “it is well established that a CLRA
15 violation suffices as the predicate” to a UCL “unlawful” prong claim. MacDonald, 37 F. Supp.
16 3d at 1097 (citing Kowalsky v. Hewlett-Packard Co., 771 F.Supp.2d 1156, 1161 (N.D. Cal.
17 2011)). The court finds no reason to depart from those holdings and concludes that a CLRA or
18 FAL violation properly falls into the category of a state, federal, or local law for this purpose.
19 Accordingly, defendant’s motion to dismiss plaintiff’s UCL claim brought under the “unlawful”
20 prong will be denied.
21 D. Breach of Express Warranty
22 California Commercial Code § 2313, which defines the term “express warranty,” applies
23 to “transactions in goods.” See Cal. Com. Code § 2102; see also Cal. Civ. Code1791.2(a)(1)
24 (defining “express warranty” as “[a] written statement arising out of a sale to the consumer of a
25 consumer good pursuant to which the manufacturer, distributor, or retailer undertakes to preserve
26 or maintain the utility or performance of the consumer good or to provide compensation if there is
27 a failure in utility or performance.”). “An express warranty is a term of the parties’ contract.”
28 /////
1 Tae Hee Lee v. Toyota Motor Sales, U.S.A., Inc., 992 F.Supp.2d 962, 978 (C.D. Cal. 2014)
2 (citation omitted).
3 Defendant contends that to allege facts identifying the exact terms of the warranty, a
4 plaintiff must provide specifics about what the warranty statement was, and how and when it was
5 breached. T & M Solar & Air Conditioning, Inc. v. Lennox Int’l Inc., 83 F. Supp. 3d 855, 875
6 (N.D. Cal. 2015). Moreover, defendant argues that under California Commercial Code Section
7 10215, “a representation about a product does not control if it is modified by more specific
8 language on the same label, because ‘[e]xact or technical specifications displace . . . general
9 language of description.” (Doc. No. 13 at 21.) Defendant concludes that assuming it warranted
10 that the products were “All Natural with Added Vitamins, Minerals & Nutrients,” plaintiff has
11 failed to allege facts that would establish that the products were not in conformance with that
12 warranty. (Id.)
13 Plaintiff argues that an express warranty claim is adequately pleaded under California law
14 when the plaintiff alleges that: (1) the seller’s statement constitutes an affirmation of fact, a
15 promise, or a description of goods; (2) the statement was part of the basis of the bargain; and
16 (3) the warranty was breached. (Doc. No. 19 at 18) (citing Cal. Com. Code. § 2313(1)). Plaintiff
17 asserts she has adequately alleged all three elements in her complaint because defendant made an
18 affirmation of fact by representing each Product as “All Natural”; plaintiff relied on that
19 representation; and defendant breached the express warranty because the Products were not
20 natural. (Id.)
21 In reply, defendant contends that failure to plead the exact terms of the warranty defeats a
22 breach of express warranty claim and that plaintiff’s claim should be dismissed here due to her
23 failure to so allege. (Doc. No. 21 at 12) (citing Hauck v. Advanced Micro Devices, Inc., No. 19-
24 CV-00447-LHK, 2018 WL 5729234, at *7 (N.D. Cal. Oct. 29, 2018)).
25 Reliance “can be reasonably inferred from the tenor and totality of the allegations in the
26 complaint.” Williams v. Beechnut Nutrition Corp., 185 Cal. App. 3d 135, 142 (1986). Here,
27 plaintiff’s complaint identified the purported warranties and plausibly alleges breach, reliance,
28 and injury. (Doc. No. 1-1 at ¶ 31) (alleging that plaintiff paid more than she otherwise would
1 have for defendant’s pet food based on the identified representations). For the reasons set forth
2 above addressing plaintiff’s intentional misrepresentation claim, plaintiff has alleged a cognizable
3 breach of express warranty claim despite the label’s modifying language of “added vitamins,
4 minerals and nutrients” because she has plausibly alleged that language could be interpreted to
5 mean only natural vitamins, minerals, and nutrients were added to the Products. Accordingly,
6 defendant’s motion to dismiss plaintiff’s express warranty claim will also be denied.
7 E. Breach of Implied Warranty
8 Defendant argues that plaintiff’s implied warranty of merchantability claim asserted under
9 California Commercial Code § 2314(2)(f) should be dismissed for three reasons. First, defendant
10 argues that it did not breach any alleged warranty that the Products are “All Natural with Added
11 Vitamins, Minerals and Nutrients.” (Doc. No. 13 at 22.) Second, defendant cites two district
12 court orders for the proposition that “when an implied warranty of merchantability cause of action
13 is based solely on [§ 2314(2)(f)], the claim rises and falls with express warranty claims brought
14 for the same product.” (Id.) (citing Hadley v. Kellogg Sales Co., 243 F. Supp. 3d 1074, 1106
15 (N.D. Cal. Mar. 21, 2017) and Broomfield v. Craft Brew Alliance, Inc., 2017 WL 3838453, at *3,
16 *11 (N.D. Cal. Sept. 1, 2017)). Thus, defendant argues, because plaintiff’s express warranty
17 claim is subject to dismissal, so too is her implied warranty claim. (Doc. No. 13 at 22.) Third,
18 defendant argues that to assert an implied warranty claim under § 2314, a plaintiff must be in
19 vertical privity with the defendant. (Id.)
20 Plaintiff responds that because she has adequately alleged her express warranty claim, her
21 implied warranty claim should likewise survive this motion to dismiss. (Doc. No. 19 at 19)
22 (citing Cal. Com. Code § 2314(f)). Plaintiff also argues that defendant’s vertical privity argument
23 fails because three exceptions apply to her: (1) there is an exception for warranties involving
24 “foodstuff”; (2) there is an exception when the plaintiff relied on a product’s labeling; and (3)
25 there is an exception when a plaintiff is a third-party beneficiary, which plaintiff alleges she is
26 because she purchased the Products from a PetSmart store. (Doc. No. 19 at 19.)
27 In its reply, defendant argues that none of the aforementioned exceptions apply to
28 plaintiff. (Doc. No. 21 at 13.) First, defendant argues that California appellate courts have not
1 specifically addressed the third-party beneficiary exception to the privity requirement. (Id.)
2 Second, defendant contends that the advertising exception applies only to express warranties, not
3 implied warranties. (Id.) (citing Martin v. Tradewinds, CV16-9249 PSG (MRWx), 2017 WL
4 1712533, at *11 (C.D. Cal. Apr. 27, 2017)). Third, defendant contends that no authority supports
5 plaintiff’s claim that the foodstuff exception applies to pet food. (Doc. No. 21 at 14.) In this
6 latter regard, defendant argues that the cases plaintiff cites only involve food intended for human
7 consumption. (Id.)
8 The court finds plaintiff’s arguments persuasive. First, both parties agree that the implied
9 and express warranty claims are tied together for purposes of resolving the pending motion.
10 (Doc. No. 13 at 22; Doc. No. 19 at 19.) Because the court finds that plaintiff has alleged a valid
11 express warranty claim, so too does it conclude that plaintiff has asserted a cognizable claim for
12 breach of an implied warranty. Second, the court agrees with the reasoning set forth by the
13 district court in Van Mourik regarding vertical privity. There, the court acknowledged there is a
14 vertical privity requirement, but held that it may be relaxed “‘when the plaintiff relies on written
15 labels or advertisements of a manufacturer’ . . . or when an express warranty is extended by the
16 manufacturer.” 2018 WL 1116715, at *5 (citing Atkinson v. Elk Corp. of Texas, 142 Cal. App.
17 4th 212, 229 (2006)). Accordingly, just as in Van Mourik, because the alleged representations
18 here are written advertisements and because plaintiff has stated a plausible claim for breach of
19 express warranty, the vertical privity rule does not bar plaintiff’s implied warranty claim.
20 Defendant’s motion to dismiss plaintiff’s implied warranty claim will therefore also be denied.
21 F. Quasi-Contract/Unjust Enrichment/Restitution Under California Law
22 Plaintiffs may seek restitution on a quasi-contract theory where the defendant obtained a
23 benefit from the plaintiff by fraud. Durell v. Sharp Healthcare, 183 Cal. App. 4th 1350, 1370
24 (2010). Just as it has argued that plaintiff has not sufficiently alleged a misrepresentation or
25 omission and therefore has not adequately pleaded fraud, defendant argues plaintiff’s restitution
26 claim should be dismissed. (Doc. No. 13 at 14) (citing Rojas-Lozano v. Google, Inc., 159 F.
27 Supp. 3d 1101, 1120 (N.D. Cal. 2016)). Defendant also argues that under California law “‘there
28 cannot be a claim based on quasi contract where there exists between the parties a valid express
1 contract covering the same subject matter.’” (Doc. No. 13 at 25) (quoting Smith v. Allmax
2 Nutrition, Inc., No. 1:15-cv-00744-SAB, 2015 WL 9434768, at *9 (E.D. Cal. Dec. 24, 2015)).
3 Defendant thus contends that because plaintiff has asserted a separate claim for breach of an
4 express warranty, she cannot also bring this quasi-contract claim.
5 Plaintiff argues that the Ninth Circuit has rejected the argument that she cannot state a
6 claim for quasi-contract along with her separate claim for breach of express warranty. (Doc. No.
7 19 at 21) (citing Astiana v. Hain Celestial Grp., Inc., 783 F. 3d 753, 762 (9th Cir. 2015)).
8 Plaintiff contends that instead “Fed R. Civ. P. Rule 8(a)(3) unequivocally allows plaintiffs to
9 plead alternative claims.” (Doc. No. 19 at 21.)
10 Defendant replies that although Rule 8 allows a plaintiff to state multiple claims, “the rule
11 does not allow a plaintiff invoking state law to assert an unjust enrichment claim while also
12 alleging an express contract.” (Doc. No. 21 at 15) (citing Smith, 2015 WL 9434768, at *9).
13 The court agrees with defendant that Rule 8 does not allow a plaintiff invoking state law
14 to assert an unjust enrichment claim while also alleging an express contract. See Smith, 2015 WL
15 9434768; see also In re Facebook Privacy Litig., 791 F.Supp.2d 705, 718 (N.D. Cal. 2011) aff’d,
16 572 Fed. App’x 494 (9th Cir. 2014). A breach of an express warranty covers the same subject
17 matter as a breach of an express contract. Smith, 2015 WL 9434768, at *10. Because plaintiff
18 may not assert a quasi-contract claim while also alleging an express warranty claim, the court will
19 grant defendant’s motion to dismiss plaintiff’s quasi-contract restitution claim.
20 G. Punitive Damages
21 Plaintiff requests punitive damages in her prayer for relief. (Doc. No. 1-1 at 30.)
22 Defendant moves to dismiss that punitive damages claim because “California federal courts
23 require a complaint seeking punitive damages to include facts sufficient to support its punitive
24 damages claim.” (Doc. No. 13 at 34) (citing Young Am.’s Found. v. Napolitano, No. 17-cv-
25 02255-MMC, 2018 WL 1947766, at *12 (N.D. Cal. Apr. 25, 2018)). Defendant also contends
26 that punitive damages are not available under either the UCL or FAL. (Doc. No. 13 at 34) (citing
27 In re Wal-Mart Stores, Inc. Wage and Hour Litig., 505 F. Supp. 2d 609, 620 (N.D. Cal. 2007)).
28 Neither, defendant argues, are punitive damages available for breach of express warranty, breach
1 of implied warranty, or unjust enrichment. (Id.) (citing Krieger v. Nick Alexander Imports, Inc.,
2 234 Cal. App. 3d 205, 212 (1991)). Thus, defendant asserts, plaintiff cannot seek punitive
3 damages under any of her UCL, FAL, breach of express warranty, breach of implied warranty, or
4 unjust enrichment claims. (Doc. No. 13 at 34–35.) Defendant concedes that punitive damages
5 are an available remedy under the CLRA and for intentional misrepresentation, but argues that
6 such damages are limited to circumstances of oppression, fraud, or malice. (Doc. No. 13 at 35)
7 (citing Cal. Civ. Code § 3294(a)). Defendant contends that a corporate entity cannot commit
8 willful and malicious conduct; the oppression, fraud, or malice must be on the part of an officer,
9 director, or managing agent of the corporation. (Doc. No. 13 at 35) (citing In re Yahoo! Inc.
10 Customer Data Security Breach Litig., 313 F. Supp. 3d 1113, 1147–48 (N.D. Cal. 2018)).
11 Accordingly, defendant argues that because plaintiff has not alleged that any officer, director, or
12 managing agent of defendant acted with fraud, oppression, or malice, her punitive damages
13 claims must be dismissed in their entirety. (Doc. No. 13 at 35.)
14 In opposition, plaintiff argues that a request for punitive damages is not a claim and is not
15 the proper subject of a motion to dismiss. (Doc. No. 19 at 31) (citing Shimy v. Wright Med.
16 Tech., Inc., No. 2:14-CV-04541-CAS (RZx), 2014 WL 3694140, at *4 (C.D. Cal. July 23, 2014)).
17 Plaintiff also contends that discovery will “reveal the identities of any responsible corporate
18 officers, directors, or managing agents,” in response to defendant’s assertion that she did not
19 properly make these allegations in her complaint. (Doc. No. 19 at 31.)
20 In its reply, defendant asserts that courts routinely dismiss punitive damages claims where
21 the plaintiff failed to plead support for such damages. (Doc. No. 21 at 21) (citing Anderson v.
22 United States, 2018 WL 4242344, at *2 (E.D. Cal. Sept. 6, 2018)). Because plaintiff does not
23 dispute that punitive damages are not available under the UCL, FAL, or breach of warranty,
24 defendant argues that the court should dismiss those damages claims. (Id.) Finally, defendant
25 argues that plaintiff cannot rely on discovery to reveal the identifies of any responsible corporate
26 agents, but must plead that an officer, director, or managing agent of defendant committed an act
27 of oppression, fraud, or malice. (Id.) (citing In re Yahoo! Inc. Customer Data Sec. Breach Litig.,
28 /////
1 313 F. Supp. 3d at 1148). Because plaintiff failed to do so, defendant asks that this court dismiss
2 her remaining claims for punitive damages.
3 Punitive damages are generally not available under the UCL or FAL. See In re Wal-Mart
4 Stores, Inc. Wage and Hour Litig., 505 F. Supp. 2d at 620; see also Petkevicius v. NBTY, Inc.,
5 No.: 3:14-cv-02616-CAB-(RBB), 2017 WL 1113295, at *10 (S.D. Cal. Mar. 24, 2017).
6 Moreover, punitive damages are not available under California law for breach of express or
7 implied warranty. See Goel v. Coalition America Holding Company Inc, No. CV 11-2349 GAF
8 (Ex), 2011 WL 13128300, at *9 (C.D. Cal. July 5, 2011) (citing Major v. W. Home Ins. Co., 169
9 Cal. App. 4th 1197, 1224 (2009)). Plaintiff appears to concede these points. Accordingly,
10 plaintiff’s only potential punitive damages claims come under her intentional misrepresentation
11 claim and her CLRA claim.
12 First, because plaintiff’s CLRA claim seeks only injunctive relief, any claim for punitive
13 damages in connection with that claim is moot. Second, defendant correctly argues that plaintiff
14 has failed to identify any officer, director, or managing agent who committed an act of
15 oppression, fraud, or malice in the allegations of her complaint and therefore cannot seek punitive
16 damages in connection with her intentional misrepresentation claim. Where a plaintiff proves
17 that the defendant has been guilty of fraud or malice, that plaintiff may recover punitive damages.
18 Cal. Civ. Code § 3294(a). However, “a corporate entity cannot commit willful and malicious
19 conduct; instead, ‘the advance knowledge and conscious disregard, authorization, ratification or
20 act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent
21 of the corporation.’” In re Yahoo! Inc. Customer Data Sec. Breach Litig., 313 F. Supp. 3d at
22 1148; see also Taiwan Semiconductor Mfg. Co. v. Tela Innovations, Inc., No. 14-CV-00362-BLF,
23 2014 WL 3705350, at *6 (N.D. Cal. July 24, 2014) (“[A] company simply cannot commit willful
24 and malicious conduct–only an individual can.”)
25 Accordingly, plaintiff’s claims for punitive damages are dismissed with leave to amend
26 only in connection with her intentional misrepresentation claim.
27 /////
28 /////
1 CONCLUSION
2 For the reasons set forth above,
3 1. Defendant’s motion to dismiss (Doc. No. 13) is granted in part and denied in part as
4 follows:
5 a. Plaintiff's seventh cause of action for breach of quasi-contract is dismissed without
6 leave to amend;
7 b. Plaintiffs requests for punitive damages are stricken with leave to amend only in
8 connection with her intentional misrepresentation claim;
9 2. This action now proceeds on plaintiffs intentional misrepresentation, express warranty,
10 implied warranty, CLRA, UCL, and FAL claims; and
11 3. Any amended complaint shall be filed within twenty-one (21) days from the issuance of
12 this order.
13 | IT IS SO ORDERED. a -
Dated: _ December 30, 2020 Dol A a yt
15 UNITED STATES DISTRICT JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10024338. Public record. Not legal advice.