Liou v. Organifi, LLC

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6 UNITED STATES DISTRICT COURT

7 SOUTHERN DISTRICT OF CALIFORNIA

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10 GLENN LIOU, Case No.: 20-cv-1077-CAB-DEB

11 Plaintiff,

ORDER GRANTING IN PART AND

12 v. DENYING IN PART DEFENDANTS’

MOTION TO DISMISS

13 ORGANIFI, LLC et al.,

14 Defendants.

[Doc. No. 3]

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18 This matter is before the Court on Defendants Organifi, LLC’s and Andrew Canole’s

19 motion to dismiss Plaintiff’s complaint. [Doc. No. 3.] The motion has been fully briefed

20 and the Court finds it suitable for determination on the papers submitted and without oral

21 argument. See S.D. Cal. CivLR 7.1(d)(1). For the reasons set forth below, Defendants’

22 motion to dismiss is granted in part and denied in part with leave to amend.

23 I. BACKGROUND

24 Plaintiff Glenn Liou filed this putative consumer class action complaint against

25 Defendants Organifi, LLC and Andrew Canole (collectively “Defendants”) in the Superior

26 Court of California, County of San Diego, on August 30, 2019. [Doc. No. 1-2.] On January

27 6, 2020, Plaintiff filed a First Amended Complaint (“FAC”) [Doc. Nos. 1-3, 1-4], and

28 Defendants removed the action to this Court on June 12, 2020. [Doc. No. 1.]

1 The FAC asserts claims for: (1) Breach of Implied Warranties of Merchantability

2 and Fitness for Particular Purpose; (2) Breach of Express Warranty; (3) Violation of

3 California’s Consumer Legal Remedies Act (“CLRA”), California Civil Code § 1750 et

4 seq.; (4) Violation of California’s Unfair Competition Law (“UCL”), California Business

5 & Professions Code § 17200 et seq.; and (5) Restitution, Money Had and Received, Unjust

6 Enrichment, and/or Quasi-Contract and Assumpsit. [Doc. No. 1-4 at ¶¶ 68–116.]

7 Defendant Organifi, LLC (“Organifi”) manufactures, promotes, advertises, and sells

8 its product Organifi Green Juice (“Green Juice” or “Product”). [Doc. No. 1-3 at ¶ 1.]

9 Defendant Andrew Canole is the founder, manager, and primary promoter of Organifi. [Id.

10 at ¶ 6.] Plaintiff alleges that based on information disseminated by Organifi through its

11 website, on or about January 29, 2019, he placed an order for a one-month supply of the

12 Green Juice, spending $72.90. [Id. at ¶ 21.] Plaintiff alleges that Defendants specifically

13 state that the Green Juice’s efficacy had been established by numerous clinical trials

14 published on a prominent government website and supported by a prestigious medical

15 university (“Clinical Trial Statements”), Georgetown University Medical Center. [Id. at

16 ¶¶ 21, 28.] As alleged in the FAC, the Clinical Trial Statements made by Defendants are

17 false and misleading as neither the links that Defendants cited to, nor the search results on

18 the web pages returned references to any clinical trials. [Id. at ¶¶ 25, 27, 28, 29, 30.]

19 Additionally, Plaintiff specifies twenty statements Defendants made relating to the Green

20 Juice’s benefits (“Benefit Statements”) that are allegedly false or misleading. [Id. at ¶

21 31(a)–(t).]

22 Plaintiff seeks to represent a class of “All persons who have purchased the [Green

23 Juice] in the past four years other than for purposes of resale or distribution.” [Id. at ¶ 11.]

24 On June 19, 2020, Defendants moved to dismiss Plaintiff’s FAC. [Doc. No. 3.]

25 II. LEGAL STANDARD

26 The familiar standards on a motion to dismiss apply here. To survive a motion to

27 dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted

28 as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.

1 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Thus,

2 the Court “accept[s] factual allegations in the complaint as true and construe[s] the

3 pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire

4 & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). On the other hand, the Court is

5 “not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556

6 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Nor is the Court “required to accept as

7 true allegations that contradict exhibits attached to the Complaint or matters properly

8 subject to judicial notice, or allegations that are merely conclusory, unwarranted deductions

9 of fact, or unreasonable inferences.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998

10 (9th Cir. 2010). “In sum, for a complaint to survive a motion to dismiss, the non-conclusory

11 factual content, and reasonable inferences from that content, must be plausibly suggestive

12 of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969

13 (9th Cir. 2009) (quotation marks omitted).

14 III. DISCUSSION

15 Defendants move to dismiss Plaintiff’s FAC for the following reasons: 1) Plaintiff

16 fails to state a claim for breach of an implied warranty of fitness for a particular purpose

17 because Plaintiff fails to allege that the very nature of the product made the product unfit

18 for its purpose; 2) Plaintiff’s claim for breach of express warranty fails because it is based

19 on a lack of substantiation; 3) Plaintiff’s claims of violation of the CLRA and UCL fail

20 because: (a) the complaint only alleges a claim for lack of substantiation, which is not

21 actionable by a private plaintiff; (b) the claims fail under the primary jurisdiction doctrine

22 since as predicated on violations of the Food, Drug, and Cosmetic Act (“FDCA”) and the

23 Dietary Supplement Health and Education Act of 1994 (“DSHEA”) and are thus

24 preempted; and 4) Plaintiff’s claims for the common counts fail because they do not

25 constitute specific causes of action and because Plaintiff failed to allege facts sufficient to

26 show that the money Plaintiff paid Defendants was intended to be used for the benefit of

27 Plaintiff, as opposed to consideration for a purchase.

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1 A. Rule 9(b) Heightened Pleading Requirements

2 As a preliminary matter, the parties disagree whether Plaintiff’s complaint is

3 grounded in fraud which would require heightened pleading standards. Plaintiff attempts

4 to argue that some of his claims are based on violations of state and federal laws for

5 mislabeling and therefore not grounded in fraud. This argument is unconvincing. The

6 entirety of Plaintiff’s complaint is premised on alleged fraudulent activity by the

7 Defendants with regard to the Clinical Trial and Benefit Statements to promote the efficacy

8 of the Green Juice. Even if fraud is not a necessary element of a claim, the plaintiff must

9 still comply with Rule 9(b) if he “allege[s] in the complaint that the defendant has engaged

10 in fraudulent conduct.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103 (9th Cir.

11 2003). This is true when the plaintiff “allege[s] a unified course of fraudulent conduct and

12 rel[ies] entirely on that course of conduct as the basis of a claim.” Id. This renders the

13 claim “grounded in” or “sounding in” fraud. Id. A claim grounded in fraud must meet the

14 heightened pleading requirements of Rule 9(b). Id. at 1103–04.

15 Because Plaintiff’s claims are all grounded in fraud, the complaint must satisfy the

16 heightened pleading requirements of Federal Rule of Civil Procedure 9(b) which provides:

17 “in alleging fraud or mistake, a party must state with particularity the circumstances

18 constituting fraud or mistake.” Fed. R. Civ. P. 9(b). The pleader must “identify the who,

19 what, when, where, and how of the misconduct charged, as well as what is misleading

20 about the purportedly fraudulent statement, and why it is false.” Davidson v. Kimberly-

21 Clark Corp., 873 F.3d 1103, 1110 (9th Cir. 2017) (quoting Cafasso, U.S. ex rel. v. Gen.

22 Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011). These heightened pleading

23 requirements apply equally to any claims based on UCL, FAL and CLRA claims which

24 ground in fraud. Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009).

25 Plaintiff’s complaint sufficiently meets the heightened pleading requirements of

26 Rule 9(b). Defendants contend that Plaintiff failed to address the following: (1) when did

27 Plaintiff view the website; (2) in what way did Plaintiff detrimentally rely on Defendants’

28 statements; (3) what statements did Plaintiff specifically rely upon; and (4) why did he rely

1 upon those statements? Yet each of these questions are answered by the complaint.

2 Plaintiff alleges that on January 29, 2019, he viewed information disseminated by

3 Defendants online and placed an order for the Green Juice in reliance on the Clinical Trial

4 and Benefit Statements which he specifically identifies throughout his complaint in

5 sufficient detail. Plaintiff alleges he detrimentally relied on these statements because he

6 cares about the nutritional content of food and seeks to maintain a healthy diet.

7 Accordingly, Plaintiff’s complaint meets Rule 9(b)’s heightened pleading requirements.

8 B. Warranty Claims

9 Defendants contend Plaintiff’s breach of implied warranties claim fails because

10 Plaintiff’s claim is based on injuries attributable to Defendants’ marketing efforts rather

11 than the nature of the product itself. Defendants also contend Plaintiff’s breach of express

12 warranty claim fails because it is not pled with sufficient specificity and because it is an

13 impermissible lack of substantiation claim.

14 Plaintiff brings separate claims for breach of implied warranty of merchantability

15 and implied warranty of fitness for a particular purpose. “The California Commercial Code

16 implies a warranty of merchantability that goods ‘are fit for ordinary purposes for which

17 such goods are used.’” Birdsong v. Apple, Inc., 590 F.3d 955, 958 (9th Cir. 2009) (citing

18 Cal. Com. Code § 2314(2)(c)). Thus, an implied warranty of merchantability “provides

19 for a minimum level of quality,” and “a breach of the warranty of merchantability occurs

20 if the product lacks even the most basic degree of fitness for ordinary use.” Id. (internal

21 citations and quotation marks omitted). In contrast, an “implied warranty of fitness for a

22 particular purpose arises when a ‘seller at the time of contracting has reason to know any

23 particular purpose for which the goods are required and that the buyer is relying on the

24 seller’s skill or judgment to select or furnish suitable goods,’ which are fit for such

25 purpose.” Keith v. Buchanan, 220 Cal. Rptr. 392, 399 (Cal. Ct. App. 1985) (quoting Cal.

26 Com. Code § 2315).

27 Here, Plaintiff fails to allege how the Green Juice does not provide for even a

28 minimum level of quality or lacks the most basic degree of fitness for ordinary use. The

1 ordinary use, as the Product’s name suggests, is a juice, and there is no indication that

2 Plaintiff received anything other than a juice. On the other hand, the Court agrees that

3 Defendants mischaracterize Plaintiff’s allegations in relation to the breach of implied

4 warranty of fitness for a particular purpose claim. Ultimately, the FAC alleges that

5 Defendants warranted that the Green Juice’s efficacy as to its numerous Benefit Statements

6 (health management, weight loss, heart health, etc.) is supported by the countless clinical

7 trials published in government websites and undertaken by a prestigious medical

8 university. Plaintiff therefore purchased the Green Juice for the particular purpose of the

9 numerous Benefit Statements that were allegedly supported by these numerous clinical

10 trials, which Plaintiff alleges do not exist. Thus, the Court finds that Defendants’ argument

11 that Plaintiff’s claim is not attributable to the product itself fails. Moreover, as discussed

12 above, Plaintiff adequately alleged he relied on the Clinical Trial and Benefit Statements

13 when purchasing the Green Juice.

14 To successfully allege a breach of express warranty, California Commercial Code §

15 2313 requires a plaintiff must allege: (1) the exact terms of the warranty, (2) reasonable

16 reliance thereon, and (3) breach. See Williams v. Beechnut Nutrition Corp., 185 Cal. App.

17 3d 135, 144 (1986). “Any description of the goods which is made part of the basis of the

18 bargain creates an express warranty that the goods shall conform to the description.” CAL.

19 COM. CODE § 2313(1)(b). “Statements made by a manufacturer through its advertising

20 efforts can be construed as warranty statements.” Aaronson v. Vital Pharms., Inc, No. 09-

21 CV-133 W(CAB), 2010 WL 624337, at *6 (S.D. Cal. Feb. 17, 2010).

22 Plaintiff alleges Defendants’ Clinical Trial Statements to promote the Benefit

23 Statements constitute express warranties that became part of the basis of the bargain.

24 “Whether the label actually provided a warranty and is likely to deceive a consumer are

25 not appropriate questions to decide on a dismissal motion.” Branca v. Bai Brands, LLC,

26 Case No.: 3:13-cv-00757-BEN-KSC, 2019 WL 1082562, at *9 (S.D. Cal. Mar. 7, 2019).

27 For pleading purposes, the Court accepts as true the allegations of the FAC and concludes

28 that Plaintiff has pled the elements of his breach of express warranty claim.

1 Accordingly, Plaintiff’s breach of implied warranty of merchantability claim is

2 DISMISSED without prejudice and Defendants’ motion to dismiss Plaintiff’s breach of

3 implied warranty of fitness for a particular purpose and breach of express warranty claims,

4 is DENIED.

5 C. CLRA and UCL Claims

6 Defendants contend Plaintiff’s CLRA and UCL claims should be dismissed because

7 (1) his allegations only support a lack of substantiation which is not actionable by a private

8 plaintiff; (2) the claims fail under the primary jurisdiction doctrine to the extent they are

9 predicated on violations of the FDCA; and (3) the claims are preempted to the extent they

10 are predicated on violations of the DSHEA.

11 1. Lack of Substantiation

12 The UCL prohibits “any unlawful, unfair or fraudulent business act or practice and

13 unfair, deceptive, untrue or misleading advertising.” Cal. Bus. & Prof. Code§ 17200. The

14 CLRA prohibits any “unfair methods of competition and unfair or deceptive acts or

15 practices undertaken by any person in a transaction intended to result or which results in

16 the sale or lease of goods or services to any consumer.” Cal. Civ. Code § 1770.

17 Private litigants may not bring suit under the UCL or CLRA alleging only that

18 advertising claims lack substantiation. See Nat’l Council Against Health Fraud, Inc. v.

19 King Bio Pharm., Inc., 133 Cal. Rptr. 2d 207, 213 (Cal. App. Ct. 2003); Stanley v. Bayer

20 Healthcare LLC, 2012 WL 1132920, at *3 (S.D. Cal. 2012). That right is reserved for “the

21 Director of Consumer Affairs, the Attorney General, any city attorney, or any district

22 attorney.” Cal. Bus. & Prof. Code§ 17508. As a result, private litigants must allege actual

23 falsity or misrepresentation for their UCL and CLRA claims, and may do so by citing to

24 “testing, scientific literature, or anecdotal evidence.” Alvarez v. NBTY, Inc., 2017 WL

25 6059159, at *8 (S.D. Cal. Dec. 6, 2017) (quoting Kwan v. SanMedica Int’l, LLC, 854 F.3d

26 1088, 1095–96 (9th Cir. 2017)).

27 In the false advertising context, an advertising claim is false if it has “actually been

28 disproved,” that is, if the plaintiff can point to evidence that directly conflicts with the

1 claim. Eckler v. Wal-Mart Stores, Inc., 2012 WL 5382218, at *3 (S.D. Cal. Nov. 1, 2012).

2 By contrast, an advertising claim that merely lacks evidentiary support is said to be

3 unsubstantiated. Id. (“There is a difference, intuitively, between a claim that has no

4 evidentiary support one way or the other and a claim that’s actually been disproved. In

5 common usage, we might say that both are ‘unsubstantiated,’ but the caselaw (and common

6 sense) imply that in the context of a false advertising lawsuit an ‘unsubstantiated’ claim is

7 only the former.”).

8 Here, Plaintiff argues that the FAC identifies a series of specific statements that are

9 allegedly provably false and misleading, again referring to Defendants’ Clinical Trial

10 Statements. Plaintiff alleges provable falsity of Defendants’ Clinical Trial Statements such

11 that: (1) there are in fact no supporting clinical trials sponsored by a prestigious medical

12 university and posted on clinicaltrials.gov; (2) there are not “numerous” clinical trials

13 of Green Juice; (3) the supposed studies that do exist do not apply to Green Juice or are of

14 the ingredient levels in Green Juice at levels not contained in Green Juice; and (4) the lone

15 “clinical trial” that supports the efficacy of Green Juice to address various maladies is not

16 in fact a clinical trial. The Court agrees that Defendants’ Clinical Trial Statements are

17 specific factual statements that do not amount to mere lack of substantiation claims.

18 Plaintiff also attempts to argue that Defendants’ Benefit Statements, listed in the FAC at ¶

19 31(a)–(t) are a separate basis for Plaintiff’s CLRA and UCL claims. However, these claims

20 would require Plaintiff to point to direct evidence specifically showing why each of the

21 twenty identified Benefit Statements are provably false, which Plaintiff has not done here.

22 To that extent, Plaintiff’s CLRA and UCL claims premised solely on the Benefit

23 Statements are DISMISSED without prejudice as lack of substantiation claims.

24 However, according to the Court’s reading of the FAC, the Benefit Statements only come

25 into play because ultimately it is the Clinical Trial Statements that Defendants affirmatively

26 made that were used to promote the efficacy of the Benefit Statements. Accordingly,

27 Defendants’ motion to dismiss Plaintiff’s CLRA and UCL claims as lack of substantiation

28 claims is DENIED as to the Clinical Trial Statements.

1 2. Primary Jurisdiction Doctrine

2 The primary jurisdiction doctrine “is a prudential doctrine under which courts may,

3 under appropriate circumstances, determine that the initial decision making responsibility

4 should be performed by the relevant agency rather than the courts.” Davel Comm’ns, Inc.

5 v. Qwest Corp., 460 F.3d 1075, 1086 (9th Cir. 2006). “[T]he doctrine applies where there

6 is (1) the need to resolve an issue that (2) has been placed by Congress within the

7 jurisdiction of an administrative body having regulatory authority (3) pursuant to a statute

8 that subjects an industry or activity to a comprehensive regulatory scheme that (4) requires

9 expertise or uniformity in administration.” Id. at 1086. Notably, “the doctrine does not,

10 however, require that all claims within an agency’s purview be decided by the agency.”

11 Id. Where “the allegations of the complaint do not necessarily require the doctrine’s

12 applicability, then the primary jurisdiction doctrine may not be applied.” Id. at 1088.

13 When deciding whether to defer jurisdiction at the motion to dismiss stage, courts

14 must “apply a standard derived from Rule 12(b)(6) jurisprudence: whether the complaint

15 plausibly asserts a claim that would not implicate the [primary jurisdiction] doctrine.”

16 County of Santa Clara v. Astra United States, 588 F.3d 1237, 1251–52 (9th Cir. 2009)

17 (declining to invoke primary jurisdiction where action would “plausibly be adjudicated”

18 without agency’s expertise), rev’d on other grounds, 563 U.S. 110 (2011). Here, Plaintiff’s

19 FAC presents a typical false advertising case well within the province of this Court because

20 “allegations of deceptive labeling do not require the expertise of the FDA to be resolved in

21 the courts, as every day courts decide whether conduct is misleading.” Jones v. ConAgra

22 Foods, Inc., 912 F. Supp. 2d 889, 899 (N.D. Cal. 2012). Accordingly, because Plaintiff’s

23 CLRA and UCL claims do not necessarily require FDA expertise, offer “an issue of first

24 impression,” or offer an issue outside “the conventional experience of judges,” the doctrine

25 of primary jurisdiction is not implicated at this early pleading stage. Brown v. MCI

26 WorldCom Network Servs., Inc., 277 F.3d 1166, 1172 (9th Cir. 2002). Therefore,

27 Defendants’ motion to dismiss or stay Plaintiff’s CLRA and UCL claims under the primary

28 jurisdiction doctrine is DENIED.

1 3. Preemption

2 The FDCA “governs the labeling of food, drugs, cosmetic products and medical

3 devices.” Lilly v. ConAgra Foods, Inc., 743 F.3d 662, 664–65 (9th Cir. 2014). In 1990,

4 Congress amended the FDCA by enacting the NLEA, “which established uniform food

5 labeling requirements[.]” Id. The NLEA contains an express preemption provision that

6 preempts state-law food-labeling requirements that are “not identical to the requirements

7 of section 343(r).” 21 U.S.C. § 343-1(a)(5). The phrase “not identical to” means “that the

8 State requirement directly or indirectly imposes obligations or contains provisions

9 concerning the composition or labeling of food [that] . . . [a]re not imposed by or contained

10 in the applicable [federal regulation] . . . or [d]iffer from those specifically imposed by or

11 contained in the applicable [federal regulation].” Lilly, at 665 (quoting 21 C.F.R. §

12 100.1(c)(4)) (alterations in original).

13 Under this framework, state-law claims are generally preempted only “where

14 application of state laws would impose more or inconsistent burdens on manufacturers than

15 the burdens imposed by the FDCA.” Gallagher v. Bayer AG, No. 14-CV-04601-WHO,

16 2015 WL 1056480, at *4 (N.D. Cal. Mar. 10, 2015). Conversely, “[i]f a lawsuit asserts

17 that a manufacturer has violated the FDCA (as amended by NLEA) and does not seek to

18 impose additional or contrary burdens to those imposed under the FDCA, the claims raised

19 under state law are not preempted.” Id., at *4 (citing Salazar v. Honest Tea, Inc., No. 2:13-

20 CV-02318-KJM, 2014 WL 2593601, at *4 (E.D. Cal. June 10, 2014)). In short, to avoid

21 preemption, “the plaintiff must be suing for conduct that violates the FDCA” but not

22 “solely because the conduct violates the FDCA, else his claim would be impliedly

23 preempted under [21 U.S.C. §] 337(a).” Trazo v. Nestle USA, Inc., No. 5:12-CV-2272-

24 PSG, 2013 WL 4083218, at *5 (N.D. Cal. Aug. 9, 2013) (emphasis in original omitted).

25 As discussed above, Plaintiff’s CLRA and UCL claims are premised on Defendants’

26 Clinical Trial Statements being false and misleading. Defendants’ argument with regard

27 to whether the statements are permissible structure/function or disease claims is irrelevant.

28 The Court has already dismissed Plaintiff’s CLRA and UCL claims to the extent they are

1 based solely on the Benefit Statements as lack of substantiation claims. Accordingly,

2 Defendants’ motion to dismiss Plaintiff’s CLRA and UCL claims as preempted is

3 DENIED.

4 D. Unjust Enrichment, Money Had and Received, and Assumpsit

5 “The elements of an unjust enrichment claim are the ‘receipt of a benefit and [the]

6 unjust retention of the benefit at the expense of another.’” Peterson v. Cellco P’ship, 164

7 Cal. App. 4th 1583, 1593 (2008) (quoting Lectrodryer v. SeoulBank, 77 Cal. App. 4th 723,

8 726 (2000)). “A quasi-contract action, in the form of a common count for money had and

9 received, to recover money obtained by fraud (waiver of tort) or mistake, is governed by

10 the fraud statute.” First Nationwide Savings v. Perry, 11 Cal. App. 4th 1657, 1670 (1992).

11 To bring an action based on a quasi-contract, a plaintiff must allege “that a defendant has

12 been unjustly conferred a benefit through mistake, fraud, coercion, or request.” Astiana v.

13 Hain Celestial Grp., Inc., 783 F.3d 753, 762 (9th Cir. 2015).

14 Here, Plaintiff alleges Defendants were unjustly conferred a benefit through his

15 purchase of the Green Juice due to Defendants’ false and misleading Clinical Trial

16 Statements. Accordingly, Plaintiff has alleged sufficient facts to plead the alternative

17 common counts and Defendants’ motion to dismiss such claims is DENIED.

18 E. Injunctive Relief

19 To establish standing for injunctive relief, Plaintiff must “demonstrate that he has

20 suffered or is threatened with a concrete and particularized legal harm, coupled with a

21 sufficient likelihood that he will again be wronged in a similar way.” Bates v. United

22 Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (internal quotations omitted); see also

23 Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 967 (9th Cir. 2018) (holding that a

24 deceived consumer may have standing to sue for injunctive relief based on allegedly false

25 advertising, but the consumer must still establish the threat of actual and imminent injury).

26 In Davidson, the Ninth Circuit held “that a previously deceived consumer may have

27 standing to seek an injunction against false advertising or labeling, even though the

28 consumer now knows or suspects that the advertising was false at the time of the original

1 purchase.” Jd. at 969. The Ninth Circuit explained that, “[i]n some cases, the threat of

2 || future harm may be the consumer’s plausible allegations that [he] will be unable to rely on

3 ||the product’s advertising or labeling in the future, and so will not purchase the product

4 although [he] would like to.” Jd. at 969-70.

5 Here, while it is clear Plaintiff now knows or suspects that Defendants’ advertising

6 || was false at the time of his purchase, Plaintiff does not allege any facts that suggest he

7 ||intends to purchase the Green Juice in the future and therefore would be unable to rely on

8 ||the Green Juice’s advertising in the future. Accordingly, under Davidson, Plaintiff has

9 failed to allege sufficient facts to suggest the threat of future harm and has not met his

10 || burden of establishing standing to seek injunctive relief.

11 IV. CONCLUSION

12 For the reasons set forth above, Defendants’ motion to dismiss is GRANTED in

13 || part and DENIED in part. Plaintiff’s breach of the implied warranty of merchantability

14 claim, Plaintiff's CLRA and UCL claims premised solely on Defendants’ Benefit

15 ||Statements, and Plaintiffs request for injunctive relief, are DISMISSED without

16 || prejudice. Should Plaintiff wish to amend his complaint he must do so by October 22,

17 ||}2020. If no amended complaint is filed by this date, this case will continue on Plaintiff’s

18 ||remaining claims and Defendants must answer the FAC by November 5, 2020.

19 It is SO ORDERED.

20 || Dated: October 1, 2020 € ZL

21

Hon. Cathy Ann Bencivengo

22 United States District Judge

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