Moreno v. Vi-Jon, Inc.

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6 UNITED STATES DISTRICT COURT

7 SOUTHERN DISTRICT OF CALIFORNIA

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9 ANTHONY MORENO, individually, and Case No.: 20cv1446 JM(BGS)

on behalf of others similarly situated,

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ORDER ON MOTION TO DISMISS

Plaintiff,

11 SECOND AMENDED COMPLAINT

v.

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VI-JON, LLC.,

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Defendant.

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16 Presently before the court is Defendant Vi-Jon, LLC’s Motion to Dismiss Second

17 Amended Complaint, filed pursuant to Federal Rules of Civil Procedure 9(b), 12(b)(1), and

18 12(b)(6). (Doc. No. 24.) The motion has been fully briefed and the court finds it suitable

19 for submission on the papers and without oral argument in accordance with Civil Local

20 Rule 7.1(d)(1). For the reasons set forth below, Defendant’s motion is granted.

21 I. BACKGROUND

22 On July 27, 2020, Plaintiff filed a consumer class action complaint against

23 Defendant, seeking damages and equitable relief for the alleged false and misleading

24 labeling on Defendant’s hand sanitizing products. (Doc. No. 1, at ¶¶ 1-8.) The complaint

25 alleged violations of California’s Unfair Competition Law (“UCL”), CAL. BUS. & PROF.

26 CODE § 17200, et seq; violation of California’s False Advertising Law (“FAL”), CAL. BUS.

27 & PROF. CODE § 17500, et seq; violation of the California Consumer Legal Remedies Act

28 (“CLRA”), CAL. CIV. CODE § 1770, et seq; breach of warranty; and quasi-contract.

1 On September 14, 2020, Plaintiff filed the First Amended Complaint. (Doc. No. 13,

2 “FAC”.) The FAC asserted FAL, UCL, CLRA, breach of express warranty, and quasi

3 contract claims against Defendant for misrepresenting and misleading consumers

4 regarding the hand sanitizers. On March 3, 2021, this court granted Defendant’s motion to

5 dismiss with leave to amend. (Doc. No. 21.)

6 On March 24, 2021, Plaintiff filed the Second Amended Complaint. (Doc. No. 22,

7 “SAC”.) The SAC asserts FAL, UCL, CLRA, breach of express warranty, breach of

8 implied warranty, and quasi contract claims against Defendant for misrepresenting and

9 misleading consumers regarding the hand sanitizers (the “Products”)1. The SAC alleges

10 that the front-facing, primary display panel of each Product contains the statement “kills

11 99.99% of germs” followed by an asterisk2. (SAC ¶¶ 2, 3.) Further, it is alleged that next

12 to the asterisk on the back panels of the Products are the statements: “Effective at

13 eliminating more than 99.99% of many common harmful germs and bacteria in as little as

14 15 seconds” or “Effective at eliminating 99.99% of many common harmful germs and

15 bacteria in as little as 15 seconds.” (Id. ¶ 4.) The SAC alleges the Representations are

16 false and misleading because the Products “do not kill” 99.99% of germs or disease-

17 causing organisms. (Id. ¶¶ 5, 7, 100-106, 124-125.) Plaintiff contends that the “Products

18 are ineffective or substantially ineffective against approximately 54 pathogens, or

19 approximately 26%” of approximately 204 clinically relevant pathogens, listed in a

20 compendium of disease-causing agents provided by the Bode Science Center. (Id. ¶¶ 8,

21 9, 107-123, 126-129.) To illustrate his point, Plaintiff points to the Products’

22 ineffectiveness against non-enveloped viruses, protozoa pathogens and bacterial spores

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25 1 The hand sanitizers at issue include the following four brands: (1) CVS Health and/or

CVS Pharmacy; (2) Equate (Walmart); (3) Germ-X; (4) Walgreen Co.

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27 2 The court will refer to the front label statement as the “Front Panel Representation,” the

rear label statement next to the asterisk as the “Rear Panel Representation” and the

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1 including norovirus, cryptosporidium, human papillomavirus (“HPV”), giardia,

2 enterococcus, poliovirus, MRSA, pseudomonas aeruginosa, C. difficile, staphylococcus

3 and E. coli. (Id. ¶¶ 14, 22-32, 108, 109, 126-160.)

4 Plaintiff also maintains the Back Panel Representation that common germs and

5 bacteria will be eliminated “in as little as 15 seconds” is misleading because the Center for

6 Disease Control and Prevention (“CDC”) website “states that hand sanitizer should remain

7 on hands for ‘around 20 seconds.’” (Id. at ¶¶ 33, 34; see also id. ¶¶ 191-195.) Additionally,

8 Plaintiff alleges the Products may be ineffective against germs, irrespective of time, if used

9 on dirty, grimy or greasy hands or if the Product is not rubbed all over the hands. (Id. ¶ 35;

10 see also id. ¶¶ 161-164.) Relatedly, Plaintiff asserts that material information has been

11 omitted from the labels regarding the Products’ limitations and ability to kill germs. (Id.

12 ¶¶ 36-39, 165-174.)

13 Further, Plaintiff alleges the Products are misbranded under the law, are legally

14 worthless, and are not capable of being legally sold. (Id. ¶¶ 66, 211-232.) Plaintiff

15 purchased each of the branded Products one or more times in stores in San Diego between

16 November 2019 through February 20203. Had Defendant not made the false and

17 misleading Representations on the Front and Back panels that the Product kills 99% of

18 germs and are effective at eliminating 99.99% of many common harmful germs in as little

19 as 15 seconds, Plaintiff alleges that he would have not purchased them, or alternatively,

20 would have purchased them on different terms. (Id. ¶¶ 178-196.)

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3 Plaintiff purchased: (1) the CVS product from a CVS store in San Diego for

25 approximately $3.99; (2) the Equate product from a Walmart store in San Diego for

approximately $3.97; (3) the Germ-X product from a Walmart store in San Diego for

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approximately $2.66; and (4) the Walgreens product from a Walgreens store in San Diego

27 for $2.99. SAC ¶¶ 197-201; see also Doc. No. 22-1, Declaration of Anthony Moreno, ¶¶

7-10, 12.

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1 Plaintiff seeks to represent a California Class consisting of “all citizens of California

2 who, within four years prior to the filing of the initial Complaint, purchased Defendant’s

3 Products and who did not claim any personal injury from using the Products.” (Id. at

4 ¶ 223.) The SAC’s Prayer for Relief includes, among other things, an order for restitution,

5 disgorgement and an award of compensatory, monetary and punitive damages. (Id. at 37.4)

6 On April 7, 2021, Defendant filed a motion to dismiss. (Doc. No. 24.) Plaintiff filed

7 his opposition to the motion5, (Doc. No. 25) and Defendant filed its reply, (Doc. No. 26).

8 Both parties also filed Notices of Supplemental Authority, (Doc. Nos. 28, 29, 30, 31) after

9 the motion was taken under submission, (see docket entry nos. 27; Doc. No. 32).

10 II. LEGAL STANDARDS

11 In its earlier order on Defendant’s motion to dismiss (Doc. No. 21), the court outlined

12 the applicable legal standards but will repeat them here for completeness sake. Federal

13 Rule of Civil Procedure 12(b)(1) allows a party to move to dismiss based on the court’s

14 lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). “[T]hose who seek to invoke

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17 4 Document numbers and page references are to those assigned by CM/ECF for the docket

entry.

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19 5 In his opposition, Plaintiff objects to what he claims are “improperly submitted facts.”

(Doc. No. 25 at 12-13; Doc. No 25-1.) Plaintiff then generally states that Defendant has

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“improperly submitted facts and evidence” and the accompanying declaration that purports

21 to support the objection makes specific references to portions of the motion. Defendant

responded to the objections. (Doc. No. 26 at 14-14; Doc. No. 26-1.) The court finds no

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basis for these objections. First, some of the citations are made to arguments being made

23 by Defendant, or to findings in this court’s prior order - there is nothing untoward or

inappropriate in this. See, e.g., Stearns v. Select Comfort Retail Corp., 763 F. Supp. 2d

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1128, 1140 n. 5 (N.D. Cal. July 21, 2010). Second, Defendant’s reference to the CDC

25 website to explain the myriad of pathogens and diseases relied on by Plaintiff cannot be

faulted when the SAC itself it littered with them, making the source subject to judicial

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notice. See, e.g., Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). Third, the passing

27 reference to a Google search and the ongoing pandemic’s role on the public’s awareness

of the effectiveness of hand sanitizer was not considered by the court when ruling on this

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1 the jurisdiction of the federal courts must satisfy the threshold requirement imposed by

2 Article III of the Constitution by alleging an actual case or controversy.” City of L.A. v.

3 Lyons, 461 U.S. 95, 101 (1983). Article III requires that: “(1) at least one named plaintiff

4 suffered an injury in fact; (2) the injury is fairly traceable to the challenged conduct; and

5 (3) the injury is likely to be redressed by a favorable decision.” Lujan v. Defenders of

6 Wildlife, 504 U.S. 555, 560-61 (1992) (quotation marks and citation omitted). Plaintiff has

7 the burden of establishing that the court has subject matter jurisdiction over an action.

8 Ass’n of Med. Colls. v. U.S., 217 F.3d 770, 778-79 (9th Cir. 2000). A party may make

9 either a facial or factual attack on subject matter jurisdiction. See, e.g., Warren v. Fox

10 Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). To resolve a facial challenge,

11 as Defendant makes here, the court considers whether “the allegations contained in [the]

12 complaint are insufficient on their face to invoke federal jurisdiction.” Safe Air for

13 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). The court must accept the

14 allegations as true and must draw all reasonable inferences in the plaintiff's favor. Whisnant

15 v. United States, 400 F.3d 1177, 1179 (9th Cir. 2005); Wolfe v. Strankman, 392 F.3d 358,

16 362 (9th Cir. 2004).

17 Under Federal Rule of Civil Procedure 12(b)(6), a party may bring a motion to

18 dismiss based on the failure to state a claim upon which relief may be granted. A Rule

19 12(b)(6) motion challenges the sufficiency of a complaint as failing to allege “enough facts

20 to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

21 544, 570 (2007). This is because a “pleading that offers ‘labels and conclusions’ or ‘a

22 formulaic recitation of the elements of a cause of action will not do.’” Ashcroft v. Iqbal,

23 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). Ordinarily, for purposes of

24 ruling on a Rule 12(b)(6) motion, the court “accept[s] factual allegations in the complaint

25 as true and construe[s] the pleadings in the light most favorable to the non-moving party.”

26 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The

27 court must be able to “draw the reasonable inference that the defendant is liable for the

28 misconduct alleged.” Iqbal, 556 U.S. at 663. “Determining whether a complaint states a

1 plausible claim for relief … [is] a context-specific task that requires the reviewing court to

2 draw on its judicial experience and common sense.” Id. at 679.

3 Under Federal Rule of Civil Procedure 9(b), a plaintiff must plead fraud with

4 particularity. “Averments of fraud must be accompanied by the who, what, when, where,

5 and how of the misconduct charged.” Vess v. Ciba–Geigy Corp. USA, 317 F.3d 1097, 1106

6 (9th Cir. 2003) (internal quotation marks omitted). Even if “fraud is not a necessary

7 element of a [particular] claim,” Rule 9(b) will apply if the plaintiff has “allege[d] a unified

8 course of fraudulent conduct and rel[ied] entirely on that course of conduct as the basis of

9 [the] claim.” Id. at 1103.

10 III. DISCUSSION

11 Defendant makes substantially similar, if not identical, arguments for dismissal in

12 the current motion, as it did in its earlier motion to dismiss. Specifically, Defendant seeks

13 dismissal on the grounds that: (1) Plaintiff lacks Article III standing; (2) the FAC fails to

14 allege facts sufficient to state any claim upon which relief can be granted; (3) Plaintiff has

15 failed to satisfy the heightened pleading requirements of Rule 9(b); (4) Plaintiff’s claim for

16 equitable relief should be dismissed because he has not alleged that he lacks an adequate

17 remedy at law; (5) Plaintiff has failed to allege facts showing an entitlement to restitution;

18 and (6) Plaintiff lacks standing to garner injunctive relief. (See generally, Doc. No. 24.)

19 The Court will address each of Defendant’s arguments in turn.

20 A. Rule 12(b)(1)

21 Defendant moves for dismissal under Rule 12(b)(1), asserting this court lacks subject

22 matter jurisdiction because Plaintiff has not met the Article III standing requirements. It

23 argues that Plaintiff has not pled any injury in fact as a result of his purchases, nor any

24 negative experience associated with the Products. (Doc. No. 24-1 at 15-18.) In support,

25 Defendant points to the allegations in the SAC that generalize “unrealized risk of harm that

26 could have resulted from use of the Products (or which the Products allegedly failed to

27 prevent), but which [Plaintiff] does not claim occurred” and notes that Plaintiff never

28 alleges that he contracted any of the viruses he alleges the Products are ineffective against.

1 (Id. at 16.) Again, Defendant argues that Plaintiff is attempting to recast his not cognizable

2 no-injury products liability claims into consumer fraud claims. (Id. at 18.) Plaintiff

3 counters that he suffered an injury in fact based on the amount he paid for the misbranded

4 products. (Doc. No. 25 at 15-21.) Additionally, Plaintiff maintains that his claims are

5 based on Defendant’s affirmative misrepresentation, which were false and misleading and

6 resulted in economic injury because he purchased the Products and are, therefore, not

7 subject to the product liability - “physical injury” - legal standard relied on by Defendant.

8 (Id. at 17-21.)

9 “There is no subject matter jurisdiction without standing, and the ‘irreducible

10 constitutional minimum’ of standing consists of three elements.” Romero v. Securus

11 Techs., Inc., 216 F. Supp. 1078, 1085 (2016). A plaintiff must have “(1) suffered an injury

12 in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that

13 is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robbins,

14 136 S. Ct. 1540, 1547 (2016). In a class action at least one of the named plaintiffs must

15 meet the Article III standing requirements. Bates v. United Parcel Servs., Inc., 511 F. 3d

16 974, 985 (9th Cir. 2007). Defendant’s arguments implicate the first element.

17 “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion

18 of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent,

19 not conjectural or hypothetical.’” Spokeo, 136 S. Ct. at 1547 (quoting Lujan, 504 U.S. at

20 560). To that end, “[a] ‘concrete’ injury must be ‘de facto’; that is, it must actually exist.”

21 Id. “Where, as here, a case is at the pleading stage, the plaintiff must ‘clearly . . . allege

22 facts demonstrating” the existence of an injury in fact.” Id. (quoting Warth v. Seldin,

23 422 U.S. 490, 518 (1975)). Thus, for Plaintiff to have Article III standing, the SAC must

24 allege facts demonstrating that Plaintiff has suffered a concrete injury as a result of the

25 violations of the FAL, UCL, CLRA and breach of express warranty, and quasi contract

26 claims alleged in the SAC.

27 Like its predecessor, the SAC does not meet this requirement. Plaintiff has failed to

28 support his claim of economic injury by factual allegations. Rather, he has based his

1 conclusory allegation of economic loss on a speculative future risk of harm. Plaintiff

2 alleges that he would not have purchased the Products had Defendant not made the false

3 and misleading Representations on the Front and Back panels that the Product kills 99%

4 of germs and are effective at eliminating 99.99% of many common harmful germs in as

5 little as 15 seconds. (SAC ¶¶ 178-196.) Even assuming the truth of this allegation, Plaintiff

6 has not pled an injury and has failed to allege an injury that “actually exist[ed]” and that

7 affected him in “a personal and individual way.” Spokeo, 136 S. Ct. at 1548.

8 Plaintiff paid for hand sanitizer and received hand sanitizer. Nowhere does Plaintiff

9 contend that he did not receive hand sanitizer. Rather, Plaintiff points to the Products

10 alleged ineffectiveness, or substantial ineffectiveness, against certain non-enveloped

11 viruses, protozoa pathogens and bacterial spores including norovirus6, giardia,

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23 6 Norovirus spreads by accidentally getting tiny particles of feces or vomit from an infected

person into your mouth. Infected food workers are frequently the cause of outbreaks in the

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United States, often by touching ready-to-eat foods, such as raw fruits and vegetables, with

25 their bare hands before serving them.

https://www.cdc.gov/norovirus/about/transmission.html People may use hand sanitizers

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in addition to hand washing but hand sanitizers should not be used as a substitute for

27 washing hands with warm water and soap.

https://www.cdc.gov/norovirus/about/prevention.html

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1 cryptosporidium , human papillomavirus (“HPV”) , C. difficile , polioviorus, MRSA,

2 entercococcus10, staphylococcus11, and E. coli. (Id. ¶¶ 14, 22-32, 126-160.) Yet nothing

3 suggests that the Products did not accomplish their intended purpose to some degree. See

4 Aleisa v. Gojo Indus., Inc., Case No. 5:20-cv-2383, Case No. 5:20-cv-2448, _ F. Supp. 3d

5 _ , 2021 WL 1893562, at * 6 (N.D. Ohio, May 11, 2021) (“whether the product kills 98%

6 or 99.99% or some other percentage of germs does not matter…. No allegation claims that

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9 7 Cryptosporidium can be found in water, food, soil or on surfaces or dirty hands that have

10 been contaminated with the feces of humans or animals infected with the parasite.

https://www.cdc.gov/parasites/crypto/general-info.html. It can be spread in a variety of

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ways, including swallowing recreational water, eating undercooked food, touching your

12 mouth with contaminated hands or exposure to an infected person via sexual contact. Id.

13 8 HPV, or human papillomavirus, is the most common sexually transmitted infection.

14 There are many different forms of HPV, some types can cause health problems including

genital warts and cancers. It is passed through intimate skin-to- skin contact. See HPV

15

Infection | Human Papillomavirus (HPV) | CDC; STD Facts - Human papillomavirus

16 (HPV) (cdc.gov)

17 9 C. difficile, a germ that causes life-threatening diarrhea, that is usually a side-effect of

18 taking antibiotics. See https://www.cdc.gov/HAI/organisms/cdiff/Cdiff_infect.html. This

bacterium generally occurs in patients over 65 years of age and older who have been taking

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antibiotics for a long period of time or who stay in a healthcare or long-term care facility

20 for an extended time. See id.

21 10 Enterococci is a bacterium lives in the intestines and genital tract and can travel into a

22 person’s blood, urine or could do so during surgery causing infection.

https://www.cdc.gov/hai/organisms/vre/vre.html#Spread. The bacteria can spread through

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hospitals if healthcare workers do not wash their hands properly. Id.

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11 Staphylococcus aureus is most prevalent and dangerous in hospitals and other health care

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facilities and is particularly susceptible to transmission through uncovered or draining

26 wounds, surgeries, injections, and implanted medical devices.

https://www.cdc.gov/hai/organisms/staph.html

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1 they received snake oil, water, or a product that did not accomplish its intended purpose to

2 some material degree.”).

3 Regarding Plaintiff’s alternative argument that he would have purchased the

4 Products on different terms if he’d known about the false and misleading Representations,

5 such allegations have been found to confer standing where appropriate. For instance, in

6 Moore v. Mars Petcare US, Inc., 966 F.3d 1007 (9th Cir. 2020), the plaintiffs alleged that

7 the defendants violated California’s consumer-protection laws by packaging and selling

8 “prescription pet food” which led “reasonable consumers falsely to believe that [their] food

9 ha[d] been subject to government inspection and oversight, and ha[d] medicinal and drug

10 properties.” Moore, 966 F.3d at 1012. In support of their theory of liability and injury, the

11 plaintiffs alleged that they “paid more for the prescription pet food than they would have

12 in the absence of the prescription requirement, had they purchased it at all.” Id. at 1014-

13 15; see also id. at 1019 (noting that the plaintiffs' “state law claims are based in part on a

14 theory of fraud: that prescription pet food is not materially different from non-prescription

15 pet food and therefore does not justify the higher cost”).12 The Ninth Circuit concluded

16 these allegations were sufficient to show actual reliance in order to have standing sufficient

17 to survive the motion to dismiss. In doing so, the Court of Appeals explained that reliance

18 is inferred from the misrepresentation of a material fact, finding it “plausible that a

19 reasonable consumer would at least partially rely on the prescription labeling to pay more

20 money for a certain type of food over others.” Id. at 1021. Further, it noted that “[t]he

21 misrepresentation of prescription pet food as medicine or FDA-controlled can be a material

22 fact for a reasonable consumer….” Id.

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25 12 In finding the affirmative prescription pet food and brand names misleading, the court

first looked to the dictionary to determine that “common sense dictates that a product that

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requires a prescription may be considered a medicine that involves a drug or controlled

27 substance.” Moore, 966 F.3d at 1018. Next, using this definition, the court concluded that

a reasonable consumer being marketed “prescription pet food,” “may be surprised to learn

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1 Here, the SAC falls far short. It makes no representations that the alleged issues

2 resulted in payment of a premium. And, as detailed below, the court does not find it

3 plausible that a reasonable consumer would read the Representations as Plaintiff does.

4 Indeed, this court finds Plaintiff’s reading implausible and inconsistent with how a

5 reasonable consumer would understand the Products’ function. Moreover, the court is

6 unaware of the existence of an over-the-counter hand sanitizer that can protect Plaintiff

7 against the various pathogens, diseases and illnesses listed by him, especially when one

8 considers that contracting one of the listed diseases/viruses depends on a number of outside

9 variables, nor does Plaintiff allege the existence of any such hand sanitizer on the market.13

10 And, as this court noted previously, Plaintiff ignores the unassailable reality that the

11 Products do not represent that they will kill any of the serious pathogens listed by Plaintiff,

12 for example HPV, while he does nothing more than simply:

13 “mathematically” calculate that the percentage of serious disease bearing

“germs” must, logically, exceed 0.01% of the universe of germs [before

14

concluding that the Products], cannot “kill” all [common] germs. This

15 argument is insufficient to confer Article III standing.” See Doc. No. 21 at

7.See, e.g., Birdsong v. Apple, 590 F.3d 955, 961 (9th Cir.2009) (plaintiff did

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not adequately allege injury in fact due to false labeling when defendant

17 adequately disclosed potential risks to customers); Boysen v. Walgreen Co.,

No. C 11- 06262 SI, 2012 WL 2953069, at * 7 (N.D. Cal. July 19, 2012);

18

Herrington v. Johnson & Johnson Consumer Cos., Inc., No. C 09-1597 CW,

19 2010 WL 3448531, at * 3 (N.D. Cal. Sept. 1, 2010); In re McNeil Consumer

Healthcare, 877 F. Supp. 2d 254 (E.D. Pa. 2012); Williams v. Purdue Pharma

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Co., 297 F. Supp. 2d 171 (D.D.C. 2003).

21 Doc. No. 21 at 7.

22 In sum, Plaintiff has not alleged any harm that is certainly impending as to himself;

23 he has only pled a speculative, conjectural and hypothetical injury. See Lujan, 504 U.S. at

24 560 (To establish injury in fact—the relevant element here—the plaintiff must show that

25 he or she suffered “an invasion of a legally protected interest” that is “concrete and

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13 This consideration alone should serve to distinguish the Moore case as there existed in

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1 particularized” and “actual or imminent, not conjectural or hypothetical”) (internal

2 quotations omitted). Consequently, the motion to dismiss the complaint, made pursuant to

3 Rule 12(b)(1), is GRANTED.

4 B. Sufficiency of Plaintiff’s Allegations

5 Second, Defendant contends that Plaintiff has failed to plead sufficient facts to

6 support his claims, or with the requisite specificity, required by Federal Rules of Civil

7 Procedure 9(b) and 12(b)(6).

8 1. CLRA, FAL & UCL claims

9 Defendant makes several arguments in favor of dismissal of these claims. (Doc. No.

10 24-1 at 20-30.) The court will focus on Defendant’s assertion that Plaintiff’s claims should

11 be dismissed because the court can conclude as a matter of law that members of the public

12 are not likely to be deceived by the advertisement. (Id. at 20-26.) Relatedly, Defendant

13 argues Plaintiff’s reliance on the germs listed in the SAC is not appropriate because the

14 reasonable consumer would not consider them to be “common” germs. (Id. at 24-26.)

15 Plaintiff counters that it is almost always inappropriate at the pleadings stage to determine

16 whether a reasonable consumer would be deceived by the label. (Doc. No. 16 at 21-23.)

17 Plaintiff also asserts that Defendant cannot substitute its self-serving conclusions for the

18 facts pled nor escape its misconduct through minutia. (Id. at 24-27.) Further, Plaintiff

19 argues that the Rear Panel Representation does not dispel or alleviate the deception on the

20 front panel and contains additional false and misleading statements. (Id. at 27-29.)

21 (i) Reasonable Consumer

22 Defendant contends that, when read as whole, the Product packaging and labels

23 would not establish that reasonable consumers could be misled. (Doc. No. 24-1 at 22.)

24 As the court explained in its prior order, California has enacted a number of

25 consumer protection statutes in order to protect its citizens from unfair, deceptive or

26 fraudulent business practices. The CLRA prohibits “unfair or deceptive acts or practices

27 undertaken by any person in a transaction intended to result or which results in the sale or

28 lease of goods or services to any customer.” CAL. CIV. CODE § 1770(a). Similarly, the

1 UCL prohibits any “unlawful, unfair or fraudulent business act or practice,” and the FAL

2 prohibits any “unfair, deceptive, untrue or misleading advertising.” CAL. BUS. & PROF.

3 CODE §§ 17200, 17500. These claims are governed by the “reasonable consumer” test.

4 Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008). The test requires that

5 plaintiff demonstrate “more than the mere possibility that the label ‘might conceivably be

6 misunderstood by some few consumers viewing it in an unreasonable manner.’” Ebner v.

7 Fresh, 838 F.3d 958, 965 (9th Cir. 2016) (quoting Lavie v. Procter & Gamble Co., 105 Cal.

8 App. 4th 496 (2003)). “Rather, the reasonable consumer standard requires a probability

9 that a significant portion of the general consuming public or of targeted consumers, acting

10 reasonably in the circumstances, could be misled.” Id. (internal quotation marks omitted).

11 Whether a business practice is deceptive will usually be a question of fact not

12 appropriate for determination at the pleadings stage. Williams, 552 F.3d at 938. “However,

13 in certain instances, [and as recognized by Williams at 939] a court can properly make this

14 determination and resolve claims based on its review of the product packaging.” Brown v.

15 Starbucks Corp., Case No.: 18cv2286 JM (WVG), 2019 WL 996399, at * 3 (S.D. Cal.

16 Mar. 1, 2019) (quoting Pelayo v. Nestle USA, Inc. 989 F. Supp. 2d 973, 978 (C.D. Cal.

17 2013)). Qualifying language in the challenged advertising making the meaning of the

18 alleged misrepresentation clear have led district courts within the Ninth Circuit to grant

19 motions to dismiss. See, e.g., Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir. 1995)

20 (affirming the district court's dismissal of the California consumer claim when “[n]one of

21 the qualifying language is hidden or unreadably small” and appears “immediately next to

22 the representations it qualifies”); Sponchiado v. Apple Inc., Case No. 18-cv-07533-HSG,

23 2019 WL 6117482, at *4 (N.D. Cal. Nov. 18, 2019) (concluding “a reasonable consumer

24 could not be deceived by the iPhone Products’ screen size representation, given the

25 qualifying language expressly notifying the consumer that the actual screen area is less

26 than indicated.”); Dinan v. SanDisk LLC, Case No. 18-CV-05420-BLF, 2020 WL 364277,

27 at *7-8 (N.D. Cal. Jan 22, 2020) (finding a reasonable consumer could not be deceived

28 regarding the number of gigabytes in the product, given the disclosure sought to clarify the

1 use of the term); Elbaz v. Vitals Int’l Grp., Case No. 8:17-cv-01673-JLS-DFM, 2018 WL

2 5868739 at * 3 (C.D. Cal. Apr. 10, 2018) (“No reasonable consumer would understand the

3 representation 100% Natural Preservative System” to mean that every ingredient in the

4 Shampoo is 100% natural…. A consumer would have to ignore half of the representation

5 in order to conclude that “100% Natural” applies to the Shampoo as a whole.”); Bobo v.

6 Optimum Nutrition, Inc., Case No.: 14CV2408 BEN (KSC), 2015 WL 13102417, at *5

7 (S.D. Cal. Sept. 11, 2015) (dismissing claims when language elsewhere on packaging

8 clarified that “100% WHEY” did not mean “100% protein,” because “a reasonable

9 consumer, like the plaintiff in Freeman, cannot look at only one statement to the exclusion

10 of everything else and claim he has been misled”); Garcia v. Sony Computer Entm’t Am.,

11 LLC, 859 F. Supp. 2d 1056, 1065 (N.D. Cal. 2012) (statement on package about product

12 compatibility was accompanied by an asterisk directing consumers to a separate document,

13 but plaintiff selectively omitted portions of the alleged misrepresentation attributable to

14 defendants, leading the court to conclude that the statements were “only partial statements,

15 and do not rise to the level of affirmative misrepresentations.”).

16 Here, Plaintiff claims that he and reasonable consumers were deceived by

17 Defendant’s Representation that the Products kill 99.99% of germs. (SAC ¶¶ 5, 7, 100-

18 109, 124-125, 178-185, 187-195.) Plaintiff alleges that “‘germs’ is defined by Merriam-

19 Webster as amongst other things, ‘especially: a microorganism causing disease.’” (Id. at ¶

20 101.) Further, he alleges that the Products “do not ‘kill’ certain germs, which comprise

21 more than 0.01% of “germs,” “do not ‘kill certain germs, which comprise more than .01%

22 of ‘common germs,’” and “do not ‘kill’ certain germs, which comprise more than .01% of

23 ‘harmful germs.’” (Id. at ¶¶ 102-104.) Several pages of the SAC are dedicated to listing

24 what pathogens, diseases and illnesses the Products are ineffective against, including

25 norovirus, HPV, c. difficile, giardia, cryptosporidium, enterococcus, poliovirus, MRSA,

26 pseudomonas aeruginosa, staphylococcus, and E. coli. (Id. ¶¶ 107-110, 114-122, 125-

27 160).

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1 However, when one looks at how these diseases/viruses/bacteria are transmitted and

2 spread, the court is hard pressed to imagined how any reasonable consumer would believe

3 that the Products, which advertise themselves to be effective against 99.99% of common

4 germs, would be effective against those listed in the SAC. For example, Plaintiff’s

5 inclusion, once again, of polio, in a list of common germs shreds credulity since an active

6 case of polio has not been reported in the United States since 1979. See

7 https://www.cdc.gov/polio/what-is-polio/polio-us.html. Similarly, Plaintiff fails to explain

8 how a reasonable consumer would interpret the Representations to mean that the Products

9 (or any other hand sanitizers) would be effective against a sexually transmitted disease,

10 food-borne illnesses, pathogens found in cat litter and undercooked food, bacteria found in

11 the environment, foods and intestines of people and animals, or the unspecified 54

12 pathogens identified in the SAC. Plaintiff does not even clarify whether any of these 54

13 pathogens are those that are admittedly, “uncommon in the United States or in humans,”

14 see SAC at 35, n.9. Instead, Plaintiff, simply conclusively assumes the diseases/viruses he

15 lists should be regarded as “common germs & bacteria” and then labels them accordingly.

16 The court is not persuaded, preferring to stand by its earlier conclusion that “common sense

17 and logic dictate that a hand sanitizer product will eliminate the germs and bacteria

18 commonly found on hands. With few exceptions, the organisms Plaintiff identifies in the

19 [SAC] either do not occur on human hands or are not common.” Doc. No. 21 at 14. See

20 Souter v. Edgewell Personal Care Co., Case No.: 20-CV-1486 TER (BLM), _ F.Supp.3d_,

21 2021 WL 3892670, at * 5 (S.D. Cal. June 7, 2021). And, in light of the public’s general

22 awareness, including amongst school children, regarding the importance of regular

23 handwashing, the court remains unconvinced that the reasonable consumer would think

24 that hand sanitizer is a substitute for washing with soap and water. See

25 https://www.cdc.gov/handwashing/show-me-the-science-hand-sanitizer.html

26 (recommending “washing hands with soap and water whenever possible because

27 handwashing reduces the amounts of all types of germs and chemicals on hands. But if

28 soap and water are not available, using a hand sanitizer with at least 60% alcohol can help

1 you avoid getting sick and spreading germs to others.”). See also Ebner, 838 F.3d at 966.

2 (concluding “that it is not plausible that ‘a significant portion of the general consuming

3 public or of targeted consumers, acting reasonably in the circumstances, could be

4 misled.’”) (citation omitted.); Lavie, 105 Cal.App.4th at 508 (“likely to deceive” means

5 “more than a mere possibility that the advertisement might conceivably be misunderstood

6 by some few consumers viewing it in an unreasonable manner”).

7 Plaintiff’s new allegations that the Products are less effective when hands are dirty,

8 grimy or greasy or that the Products may be “additionally ineffective, even against ‘germs’

9 that they would otherwise kill’ where they are not properly applied,” (Doc. No. 25 at 27;

10 see also SAC ¶¶ 161-174), are insufficient to save the claims from dismissal. First,

11 common sense dictates that any hand sanitizer may be less effective when hands are heavily

12 soiled or greasy because the Products do NOT claim to be a substitute for soap and water.

13 Neither do any of the Products make any representations regarding use on hands that are

14 dirty, grimy or greasy. Moreover, any product will not be as effective when not properly

15 applied or used as directed. The Products’ directions state: “wet hands thoroughly with

16 product and allow to dry without wiping.” (Doc. No. 22-1 at 9, 11, 12, 30.) The fact that

17 some consumers may not follow these instructions does not make the Products misleading.

18 At bottom, Plaintiff’s deceptive advertising claims are simply based on unreasonable

19 or fanciful interpretations of the Representations on the Products at issue. See Moore v.

20 Trade Joe’s Co. 4 F.4th 874, 882 (9th Cir. 2021) (“it remains the case that ‘where plaintiffs

21 base deceptive advertising claims on unreasonable or fanciful interpretations of labels or

22 other advertising, dismissal on the pleadings may well be justified.’”) (quoting Bell v.

23 Publix Super Markets Inc, 982 F.3d 477 (7th Cir. 2020)). Thus, Plaintiff has failed to state

24 a claim that the packaging on Defendant’s Products is misleading under the CLRA, FAL,

25 and UCL.

26 In accordance with the foregoing, Defendant’s motion to dismiss the CLRA, FAL

27 and UCL claims, made pursuant to Rule 12(b)(6), is GRANTED. Having dismissed the

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1 CLRA, FAL and UCL claims as a matter of law, the court declines to address Defendant’s

2 alternate argument for dismissal of these claims.14

3 (ii) Remaining State Law Claims.

4 Plaintiff’s failure to plausibly allege that Defendant made any misrepresentation or

5 misleading nondisclosure undermines his remaining claims.

6 “To prevail on a breach of express warranty claim, the plaintiff must prove (the

7 seller’s statements constitute an ‘affirmation of fact or promise’ or a ‘description of the

8 goods’; (2) the statement was ‘part of the basis of the bargain’; and (3) the warranty was

9 breached.” Weinstat v. Dentsply Int’l, Inc., 180 Cal. App 4th 1213, 1227 (2010). See also

10 Viggiano v. Hansen Natural Corp., 944 F. Supp. 2d 877, 893 (C.D. Cal. 2013) (adding

11 fourth requirement that “the breach caused injury to the plaintiff.”). Here, the court has

12 already concluded that Plaintiff’s understanding of the bargain is implausible and

13 inconsistent with the understanding of a reasonable consumer. Thus, Plaintiff has failed to

14 plausibly allege that Defendant breached any express warranty. See Forouzesh v.

15 Starbucks Corp., Case No. CV-16-3830 PA (AGRx), 2016 WL 4443203, at * 4 (C.D. Cal.

16 Aug. 19, 2016) (“Plaintiff’s strained interpretation of Defendant’s menu descriptions,

17 which is inconsistent with the understanding of a reasonable consumer, does not form the

18 ‘basis of the bargain’ that could support a breach of express warranty claim in these

19 circumstances.”); see also Solak v Hain Celestial Grp., Inc., 3:17-CV-0704 (LEK/DEP),

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14 Defendant also argues that the SAC fails to meet the heightened pleading standards or to

22

adequately allege the circumstances of Plaintiff’s purchase. (Doc. No. 24-1 at 28-29.)

23 Further, Defendant contends that the SAC fails to support an FAL claim because there is

no basis to infer that Defendant had knowledge of a false statement allegedly made to

24

Plaintiff. (Id. at 29.) Additionally, Defendant asserts that the UCL claim must fail because

25 Plaintiff has not identified any conduct by it that offends an established public policy or

violates an underlying law. (Id. at 29-30.) Finally, in order to preserve and avoid waiver

26

of any preemption argument, Defendant “expressly adopt[ed] and incorporat[ed] its

27 preemption argument from its prior briefing on the FAC as if fully set forth herein. (Id. at

n. 20.)

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1 2018 WL 1870474, at * 11 (N.D.N.Y. Apr. 17, 2018) (“the caselaw makes clear that for a

2 statement or representation to provide the basis for an express warranty claim, it still must

3 meet the threshold requirement of ‘being material to a reasonable consumer.’”) (quoting In

4 re ConAgra Foods, Inc., 90 F. Supp. 3d 919, 985) (C.D. Cal. 2015)).

5 Plaintiff has failed to plead a quasi-contract claim because, as explained above, there

6 was no false representation. Plaintiff’s quasi-contract claim is asserted under the theory of

7 unjust enrichment and seeks restitution and/or disgorgement. But with no false

8 representation appearing on the Products, and no apparent fraud on the part of Defendant,

9 there can be no unjust enrichment. See Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753,

10 762 (9th Cir. 2015) (To bring an action based on a quasi-contract, a plaintiff must allege

11 “that a defendant has been unjustly conferred a benefit through mistake, fraud, coercion,

12 or request.”). See also Myers-Taylor v. Ornau Foods N. Am., Inc., Case No.:

13 3:18- cv- 01538- H-MDD, 2019 WL 424703, * 6 (S.D. Cal. Feb. 4, 2019) (in order to

14 successfully plead a quasi-contract claim based on unjust enrichment, a plaintiff must show

15 some fraud.); First Nationwide Sav. v. Perry, 11 Cal. App. 4th 1657, 1670 (1992) (“A

16 quasi-contract action, in the form of a common count for money had and received, to

17 recover money obtained by fraud (waiver of tort) or mistake, is governed by the fraud

18 statute.”). Likewise, the absence of a fraudulent and misleading representation means that

19 Plaintiff’s claim for restitution is not supported by sufficient facts at this time. Pulaski &

20 Middleman, LLC v. Google, Inc., 802 F.3d 979, 989 (9th Cir. 2015) (“[I]n calculating

21 restitution under the UCL and FAL, the focus is on the difference between what was paid

22 and what a reasonable consumer would have paid at the time of purchase without the

23 fraudulent or omitted information.”); Astiana v. Kashi Co., 291 F.R.D. 493, 506 (S.D. Cal.

24 2013) (the various California consumer protection laws provide the court with “very broad

25 discretion to determine an appropriate remedy as long as it is supported by the evidence

26 and is consistent with the purpose of restoring to the plaintiff the amount that the defendant

27 wrongfully acquired.”) (internal citation omitted).

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1 In accordance with the foregoing, the court GRANTS Defendant’s motion to

2 || dismiss the breach of warranty and quasi-contract claims.

3 IV. CONCLUSION

4 In accordance with the foregoing, the court GRANTS Defendant’s motion to

5 dismiss the SAC. (Doc. No. 24.) The Clerk of Court shall CLOSE this case.

6 IT IS SO ORDERED.

7 || Dated: December 6, 2021 Piel

9 n. Jeffrey. Miller

nited States District Judge

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