The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 GEORGE PRATT, individually and on Case No.: 25-cv-01982-ABJ-GC
behalf of all others similarly situated,
12 ORDER DENYING DEFENDANT’S
MOTION TO DISMISS
13
Plaintiff,
14 (Doc. No. 16)
v.
15
BONAFIDE PROVISIONS, LLC,
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Defendant.
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18 Before the Court is Defendant Bonafide Provisions, LLC’s (“Bonafide”) Motion to
19 Dismiss Plaintiff George Pratt’s (“Plaintiff”) First Amended Complaint (“FAC”). (Doc.
20 No. 16.) Plaintiff filed an opposition (Doc. No. 20), to which Bonafide replied (Doc. No.
21 21). For the reasons set forth below, the Court DENIES Bonafide’s Motion to Dismiss.
22 I. BACKGROUND
23 A. Procedural History
24 On August 1, 2025, Plaintiff filed his Class Action Complaint (“Complaint”),
25 asserting five causes of action: (1) violation of California’s Consumer Remedies Act
26 (“CLRA”); (2) violation of California’s Unfair Competition Law (“UCL”); (3) violation of
27 California’s False Advertising Law (“FAL”); (4) breach of express warranty; and (5) unjust
28 enrichment. (Doc. No. 1.) On August 25, 2025, Bonafide moved to dismiss all claims
1 pursuant to Federal Rules of Civil Procedure 9(b), 12(b)(6) and 12(b)(1). (Doc. No. 9.) The
2 Court subsequently sua sponte dismissed the case for lack of subject matter jurisdiction,
3 granting Plaintiff leave to amend and denied as moot Bonafide’s Motion to Dismiss. (Doc.
4 No. 14.) On February 13, 2026, Plaintiff filed the operative FAC asserting the same five
5 causes of action. (Doc. No. 15.) Bonafide again moves to dismiss all claims pursuant to
6 Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 9(b). (Doc. No. 16.)
7 B. Factual History
8 The FAC alleges that Plaintiff purchased Bonafide’s twenty-four-ounce Organic
9 Beef Bone Broth (the “Product”) from Amazon approximately twice a month for a year.
10 (Doc. No. 15 ¶ 4.) Bonafide manufactures, sells, and produces Bonafide Provisions’ Frozen
11 Organic Bone Broth Products, including twenty-four-ounce containers of beef bone broth
12 and chicken bone broth (the “Products”). (Id. ¶ 1.) Bonafide’s frozen beef and chicken bone
13 broth products claim to contain ten grams of protein per serving on the Products’ nutritional
14 panel and Amazon sales page. (Id. ¶ 2.) Plaintiff alleges that he paid a premium price for
15 the Product based on the Product’s representation that it contained ten grams of protein per
16 serving. (Id.) Plaintiff alleges that other bone broth products with less protein retail for less
17 money than Bonafide’s Products. (Id. ¶ 20.) Bonafide’s Products are sold both online and
18 in stores nationwide. (Id. ¶ 43.)
19 In April 2025, ConsumerLab, an independent third-party testing organization that
20 tests consumer products, found that Bonafide’s twenty-four fluid ounce Organic Beef Bone
21 Broth Product contained 6.5 grams of protein per serving, rather than the ten grams of
22 protein stated on the Product’s packaging. (Id. ¶ 23.) ConsumerLab’s testing included
23 analysis of “total protein by combustion (AOAC 992.15) and collagen calculated from
24 hydroxyproline by High Performance Liquid Chromatography (HPLC) (AOAC 990.26).”
25 (Id.) Plaintiff alleges that ConsumerLab confirmed this result with a second laboratory.
26 (Id.) Plaintiff further alleges that Plaintiff’s counsel conducted testing that corroborated
27 these results through an ISO/IEC 17025:2005 accredited laboratory using AOAC
28 methodology, finding 6.73 grams of protein in the Product. (Id. ¶¶ 23–24.) Plaintiff asserts
1 these tests indicate Bonafides’s Products are “consistently underfilled by approximately
2 35%,” so the Products’ packaging misrepresents the amount of protein per serving by
3 containing about 65% of the purported ten grams of protein. (Id. ¶¶ 2–4.)
4 Plaintiff alleges he suffered, and continues to suffer, economic injuries because of
5 this misrepresentation. (Id. ¶¶ 4–5.) Plaintiff alleges he reasonably relied on Bonafide’s
6 representation that the Product contained ten grams of protein per serving when he chose
7 to purchase the product, and he “would not have purchased it on the same terms” if he
8 knew it did not contain ten grams of protein per serving. (Id. ¶ 4.) Although Plaintiff would
9 like to purchase the Product in the future, Plaintiff asserts he will not be able to make an
10 informed decision regarding purchase of Bonafide’s Products if the protein amount is, or
11 may be, inaccurate. (Id.) Plaintiff therefore contends that he is “likely to be repeatedly
12 misled by [Bonafide’s] conduct” until Bonafide can ensure accurate protein representation
13 of the Products. (Id.)
14 Plaintiff asserts that Bonafide’s frozen Organic Chicken Bone Broth is substantially
15 similar to the beef bone broth Product Plaintiff purchased. (Id. ¶ 26.) Thus, Plaintiff alleges
16 he has standing to bring claims on behalf of purchasers of both frozen chicken and beef
17 bone broth products. (Id. ¶¶ 26–28.) Plaintiff argues that because both Products are
18 “manufactured, processed, and consumed in the same way,” they are “susceptible to the
19 same inference that each suffer from the same defect.” (Id. ¶ 27.)
20 Finally, Plaintiff seeks to represent a nationwide class defined as “all persons in the
21 United States who purchased the Products for personal or household use during the statute
22 of limitations period (the “Nationwide Class”).” (Doc. No. 15 ¶ 47.) Plaintiff also seeks to
23 represent a California subclass defined as “[a]ll Class members who purchased the
24 Products for personal or household use in California during the statute of limitations period
25 (the “California Subclass”).” (Id. ¶ 48.)
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1 II. LEGAL STANDARDS
2 A. Federal Rule of Civil Procedure 12(b)(1)
3 Article III, Section 2 of the Constitution limits federal courts to hearing “actual cases
4 or controversies.” Spokeo, Inc. v. Robins, 578 U.S. 330, 337 (2016). This limitation means
5 the plaintiff must have standing to sue. Id. at 338. To establish standing, a plaintiff must
6 demonstrate the “irreducible constitutional minimum” of: (1) an injury-in-fact via “an
7 invasion of a legally protected interest which is (a) concrete and particularized, and (b)
8 actual or imminent, not conjectural or hypothetical”; (2) causation—that the injury is
9 “fairly traceable to the challenged action of the defendant”; and (3) redressability—that it
10 is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable
11 decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (internal citations and
12 quotations omitted). “Each element of standing ‘must be supported . . . with the manner
13 and degree of evidence required at the successive stage of litigation.’” Maya v. Centex
14 Corp., 658 F.3d 1060, 1068 (9th Cir. 2011) (quoting Lujan, 504 U.S. at 561).
15 A motion to dismiss for lack of standing is brought pursuant to Federal Rule of Civil
16 Procedure 12(b)(1). See Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122
17 (9th Cir. 2010) (noting that “[b]ecause standing and ripeness pertain to federal courts’
18 subject matter jurisdiction, they are properly raised in a Rule 12(b)(1) motion to dismiss”).
19 Such a motion can be facial or factual in nature. Pride v. Correa, 719 F.3d 1130, 1139 (9th
20 Cir. 2013). “In a facial attack, the challenger asserts that the allegations contained in a
21 complaint are insufficient on their face to invoke federal jurisdiction.” Safe Air for
22 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). The Court “resolves a facial attack
23 as it would a motion to dismiss under Rule 12(b)(6): Accepting the plaintiff’s allegations
24 as true and drawing all reasonable inferences in the plaintiff’s favor, the court determines
25 whether the allegations are sufficient as a legal matter to invoke the court’s jurisdiction.”
26 Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014).
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1 B. Federal Rule of Civil Procedure 12(b)(6)
2 Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a motion to dismiss
3 challenges a complaint’s legal sufficiency and allows a court to dismiss the complaint for
4 “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A court
5 may dismiss the complaint as a matter of law if claims do not establish a cognizable legal
6 theory or if claims do not provide sufficient facts to support a cognizable legal theory.
7 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). While a
8 complaint at the pleading stage does not need “detailed factual allegations,” it must go
9 beyond the “speculative level” such that it contains “enough facts to state a claim to relief
10 that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545–47 (2007). A
11 claim is facially plausible when the factual content of the plaintiff’s claim “allows the court
12 to draw the reasonable inference that the defendant is liable for the misconduct charged.”
13 Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009) (citation omitted). Thus, conclusory statements
14 will not suffice. Id. (“While legal conclusions can provide the complaint's framework, they
15 must be supported by factual allegations.”).
16 The Court accepts a complaint’s allegations as true in the light most favorable to the
17 plaintiff. Schueneman v. Arena Pharms., Inc., 840 F.3d 698, 704 (9th Cir. 2016). In general,
18 district courts may not consider material outside the pleadings when assessing a complaint.
19 Fed. R. Civ. P. 12(b)(6). However, two distinct exceptions to this rule—the incorporation-
20 by-reference doctrine and judicial notice—allow district courts to consider materials that
21 are not included in the complaint, “but each does so for different reasons and in different
22 ways,” and should therefore not be conflated as one. Khoja v. Orexigen Therapeutics, Inc.,
23 899 F.3d 988, 998 (9th Cir. 2018).
24 C. Federal Rule of Civil Procedure 9(b)
25 A party that alleges fraud must “state with particularity the circumstances
26 constituting fraud.” Fed. R. Civ. P. 9. However, conditions such as “malice, intent,
27 knowledge, and other conditions of a person’s mind” may be addressed generally. Id. To
28 allege with particularity, a plaintiff must state the “‘who, what, when, where, and how’” of
1 the alleged fraud. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003)
2 (citation omitted). Additionally, the plaintiff must establish both “what is false or
3 misleading about a statement, and why it is false.” In re GlenFed, Inc. Sec. Litig., 42 F.3d
4 1541, 1548 (9th Cir. 1994), superseded by statute on other grounds.
5 III. JUDICIAL NOTICE AND INCORPORATION BY REFERENCE
6 In addition to its motion to dismiss (Doc. No. 16), Bonafide seeks judicial notice of
7 two ConsumerLab.com webpages (the “Webpages”) which contain matters referred in
8 Plaintiff’s FAC. (Doc. No. 16-1.) Plaintiff does not oppose the request. (See generally Doc.
9 No. 20.)
10 A. Legal Standard
11 Rule 201 of the Federal Rules of Evidence permits a court to take judicial notice of
12 a fact when it is “not subject to reasonable dispute because it: (1) is generally known within
13 the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from
14 sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). A court
15 may also consider documents incorporated by reference in the complaint “if the plaintiff
16 refers extensively to the document or the document forms the basis of the plaintiff’s claim.”
17 United States v. Ritchie, 342 F.3d 903, 907–08 (9th Cir. 2003). This “incorporation by
18 reference” doctrine can apply to printed matter as well as web pages. Knievel v. ESPN, 393
19 F.3d 1068, 1076 (9th Cir. 2005).
20 B. Discussion
21 Bonafide asserts that the Websites are judicially noticeable because they are
22 incorporated by reference in Plaintiff’s FAC. (Doc. No. 16-1.) Bonafide reasons that the
23 Websites are “expressly referred to and relied on” in Plaintiff’s FAC and Bonafide alleges
24 this sufficient for judicial notice. (Doc. No. 16-1.) Bonafide contends that courts often take
25 judicial notice of websites, such as the Websites from ConsumerLab.com, when the
26 “incorporation by reference” doctrine is met. (Id. at 4–5.) Bonafide argues that is the case
27 here. (Id.)
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1 However, judicial notice and the doctrine of incorporation by reference are distinct
2 from one another. Khoja, 899 F.3d at 998. Although they both “permit district courts to
3 consider materials outside a complaint,” judicial notice and the incorporation-by-reference
4 doctrine both “do[] so for different reasons and in different ways.” Id. To satisfy the
5 requirements for judicial notice, Bonafide must meet the requirements outlined in Rule
6 201, not the requirements for the incorporation-by-reference doctrine. Id. Bonafide fails to
7 meet this standard. Bonafide does not provide a factual basis to establish that the Websites
8 are either generally known or that their accuracy cannot be reasonably challenged. (Doc.
9 No. 16-1.) Furthermore, in Hayden v. Bob’s Red Mill Nat. Foods, Inc., the case Bonafide
10 cites as representative of a court granting judicial notice of ConsumerLab.com, the court
11 granted admission of the ConsumerLab.com article under the doctrine of incorporation by
12 reference, rather than judicial notice. Hayden v. Bob’s Red Mill Nat. Foods, Inc., No. 23-
13 CV-03862-HSG, 2024 WL 1643696, at *3 (N.D. Cal. Apr. 16, 2024). Thus, the use of
14 Hayden in support of Bonafide’s request for judicial notice is misplaced. The Court
15 therefore DENIES Bonafide’s request for judicial notice.
16 The Court turns to whether consideration of the Websites is proper pursuant to the
17 doctrine of incorporation by reference. The incorporation-by-reference doctrine allows
18 courts to consider documents as though they were attached to the complaint when the
19 plaintiff refers to the document “extensively” or the document “forms the basis of the
20 plaintiff’s claim.” Ritchie, 342 F.3d at 907–08. Here, the FAC refers to the Websites from
21 ConsumerLab.com to form the basis of Plaintiff’s claims. (Doc. No. 15 ¶¶ 2, 23.) Plaintiff
22 relies on the Websites to argue that the bone broth Products contain less protein than
23 advertised. (Id.) Plaintiff includes counsel’s separate testing as additional evidence, but
24 throughout the FAC, Plaintiff identifies the Websites as the primary resource to support
25 the lower protein level allegations. (Id.) Although Plaintiff does not attach the Websites to
26 the FAC, Plaintiff incorporates the Websites by reference via footnotes throughout the
27 FAC. (Id.) Thus, the Court finds the Websites are incorporated by reference.
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1 IV. DISCUSSION
2 A. Motion to Dismiss under Fed. R. Civ. P. 12(b)(1)
3 Bonafide argues that Plaintiff lacks standing to bring his claims. Specifically,
4 Bonafide argues that (1) Plaintiff does not plausibly plead that any Bonafide product
5 contains less than ten grams of protein and (2) Plaintiff lacks standing to sue over products
6 he did not purchase. (Doc. No. 16 at 19–24.) The Court finds these arguments unpersuasive
7 and will deny Bonafide’s motion to dismiss on standing grounds.
8 First, Bonafide asserts that Plaintiff does not plausibly plead that any of Bonafide’s
9 products contain less than ten grams of protein because all testing provided by Plaintiff is
10 facially unreliable. (Doc. No. 16 at 17–18.) Bonafide highlights ConsumerLab.com’s
11 testing of just one beef and one chicken bone broth product, limited information regarding
12 testing, and ConsumerLab.com’s disclaimer that it “‘cannot assure the accuracy of
13 information’ in its own reports.” (Id. at 17 (quoting Declaration of Melanie A. Ayerh
14 (“Ayerh Decl.”) ¶ 2; Ex. 1 at 17).) Bonafide further alleges that Plaintiff’s counsel’s
15 independent testing similarly lacks sufficient details by not disclosing what type of product
16 was tested, whether it was the same type of product Plaintiff purchased, and the methods
17 of testing employed. (Id. at 18.) Bonafide therefore argues that “Plaintiff has not plausibly
18 alleged that any significant number of Bonafide lots or batches—and certainly not the
19 specific Product he purchased—contained less than the labeled 10 grams of protein.” (Id.
20 at 22.) Rather, Bonafide asserts that, “[a]t most,” there is a risk of the Products containing
21 less than ten grams of protein, which Bonafide argues is not sufficient to establish concrete
22 injury. (Id.)
23 The Ninth Circuit has consistently held that economic injury resulting from a
24 plaintiff paying more for a product than they would have otherwise is sufficient to establish
25 Article III standing when overpayment is due to a defendant’s false or misleading
26
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1 representations. Plaintiff asserts he would not have purchased the product at its higher
2 price point had he known the product did not contain, or risked not containing, ten grams
3 of protein. (Doc. No. 15 ¶¶ 4–5, 34.) Plaintiff therefore establishes economic injury. The
4 Ninth Circuit has also established that a facial attack at this stage requires the Court to
5 “[a]ccept[] the plaintiff’s allegations as true and draw[] all reasonable inferences in the
6 plaintiff’s favor.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (citing Pride v.
7 Correa, 719 F.3d 1130, 1133 (9th Cir. 2013)). This “plausibility standard” is not
8 heightened to the requirement of “probability,” but rather “asks for more than a sheer
9 possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly,
10 550 U.S. at 545). Here, Plaintiff has provided more than a “sheer possibility” that the
11 Products contain less than ten grams of protein by including test results from
12 ConsumerLab.com and Plaintiff’s own testing. (See Doc. No. 15 ¶¶ 23–24.) Plaintiff has
13 therefore supplied facts sufficient to plausibly plead, beyond a “sheer possibility,” that
14 Bonafide’s Products contains less than ten grams of protein.
15 Next, Bonafide argues that Plaintiff fails to plead he personally purchased a Product
16 containing less protein than promised because he does not allege he tested the specific bone
17 broth he purchased. (Doc. No. 16 at 22–24.) This argument is unavailing. Bonafide does
18 not cite any Ninth Circuit decision which would require Plaintiff to test the exact product
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1 See, e.g., McGee v. S-L Snacks Nat’l, 982 F.3d 700, 706 (9th Cir. 2020) (“We have consistently
22 recognized that a plaintiff can satisfy the injury in fact requirement by showing that she paid more for a
product than she otherwise would have due to a defendant’s false representations about the product.”);
23 Maya v. Centex Corp., 658 F.3d 1060, 1069 (9th Cir. 2011) (“[Plaintiffs] claim that they would not have
purchased their homes had defendants made the disclosures allegedly required by law. We agree with
24
plaintiffs that these are actual and concrete economic injuries.”); Hinojos v. Kohl’s Corp., 718 F.3d 1098,
25 1104 (9th Cir. 2013) (“Where, as here, ‘Plaintiffs contend that class members paid more for [a product]
than they otherwise would have paid, or bought it when they otherwise would not have done so” they have
26 suffered an Article III injury in fact” (quoting Mazza v. Am. Honda Motor Co., 666 F.3d 581, 595 (9th
Cir. 2012)); Bowen v. Energizer Holdings, Inc., 118 F.4th 1134, 1147 (9th Cir. 2024) (“[T]hese allegations
27 outline a theory of economic injury that qualifies as an injury in fact under established Article III standing
caselaw.”)
28
1 he purchased. Rather, many courts in this circuit have held that a plaintiff need not test the
2 particular sample he or she consumed. See, e.g., Rodriguez v. Mondelez Glob. LLC, 703 F.
3 Supp. 3d 1191, 1205 (S.D. Cal. 2023) (“Plaintiffs need not allege that the specific Products
4 they purchased had unsafe levels of lead and/or cadmium, but may simply aver facts from
5 which this Court can make such reasonable inference.”) (internal quotation marks omitted);
6 Grausz v. Hershey Co., 691 F. Supp. 3d 1178, 1188 (S.D. Cal. 2023) (holding that the
7 plaintiff sufficiently alleged injury in fact despite not alleging she tested the particular
8 product she purchased); Boyd v. SunButter, LLC, 762 F. Supp. 3d 931, 941 (C.D. Cal.
9 2025), adopted, No. 24-cv-7873-GW-BFMX, 2025 WL 84700 (C.D. Cal. Jan. 13, 2025).
10 Finally, Bonafide argues that because Plaintiff only purchased Bonafide’s frozen
11 organic beef bone broth product, he does not have standing to pursue a claim on behalf of
12 consumers who purchased chicken bone broth products. (Doc. No. 16 at 16, 22–23.)
13 Bonafide asserts that the products are not substantially similar. (Id.) Bonafide also contends
14 that ConsumerLab.com’s testing of its chicken product reported higher protein levels than
15 displayed on the product’s label. (Id. at 16–17, 24.)
16 Although the Ninth Circuit has not established controlling authority regarding
17 whether or not a plaintiff may have standing for products they did not purchase, see
18 Hayden, 2024 WL 1643696, at *5 (citations omitted), a majority of courts have found that
19 a plaintiff has standing to assert claims based on products the plaintiff did not personally
20 purchase on behalf of unnamed class members when “the products and alleged
21 misrepresentations are substantially similar.” Miller v. Ghirardelli Chocolate Co., 912 F.
22 Supp. 2d 861, 869 (N.D. Cal. 2012). When considering standing, courts have found
23 substantial similarity when three conditions are met: “(1) the products are physically
24 similar; (2) the differences between the products are immaterial because the legal claim
25 and injury to the customer is the same; and (3) both the products and the legal claims and
26 injury are similar.” Hayden, 2024 WL 1643696, at *5. Courts have therefore found that
27 standing is met at the motion to dismiss stage when the alleged misrepresentation is the
28 same, Brown v. Hain Celestial Grp., Inc., 913 F. Supp. 2d 881, 890–91 (N.D. Cal. 2012),
1 and the products are not so dissimilar as to be “a wide range of . . . products . . . which bear
2 little similarity.” Astiana v. Dreyer’s Grand Ice Cream, Inc., 2012 WL 2990766, at *13
3 (N.D. Cal. July 20).
4 Here, both the beef bone broth product and chicken bone broth product make the
5 same claim (to contain ten grams of protein), and both Products are physically similar in
6 that they are frozen bone broth products of the same consistency and volume. (Doc. No. 15
7 ¶¶ 1, 9, 25–27.) Therefore, Plaintiff alleges the same misrepresentation for physically
8 similar products, satisfying the requirements for sufficient similarity at the motion to
9 dismiss stage. See Hayden, 2024 WL 1643696, at *5.
10 Plaintiff has sufficiently alleged an economic injury-in-fact, and Bonafide does not
11 dispute causation or redressability. The Court therefore DENIES Bonafide’s Motion to
12 Dismiss this action for lack of Article III standing.
13 B. Motion to Dismiss under Fed. R. Civ. P. 12(b)(6)
14 The Court now turns to the legal sufficiency of the Plaintiff’s claims. Bonafide
15 argues (1) Plaintiff does not plead fraud with specificity under Federal Rule of Civil
16 Procedure 9(b), (2) Plaintiff’s claims fail under the Reasonable Consumer Standard, (3)
17 Plaintiff cannot pursue equitable relief because he has an adequate remedy at law, and (4)
18 Plaintiff’s nationwide class allegations are deficient. (Doc. No. 16 at 24–39.) The Court
19 will address each of Bonafide’s arguments in turn.
20 1. Plaintiff Pleads Fraud with Specificity under Rule 9(b)
21 Defendant argues that Plaintiff must satisfy the heightened pleading requirements of
22 Rule 9(b) because Plaintiff “alleges a unified course of fraudulent conduct and relies
23 entirely on that course of conduct as the basis of a claim.” (Doc. No. 16 at 24) (cleaned
24 up). Plaintiff does not contest the requirement of the heightened pleading standard, but
25 argues that the FAC meets that standard. The Court will therefore analyze whether
26 Plaintiff’s allegations are sufficient under Rule 9(b)’s heightened pleading requirement to
27 plausibly allege a unified course of fraudulent conduct.
28
1 First, Bonafide argues that Plaintiff fails to allege with particularity under Rule
2 9(b)’s heightened standard by not specifying “why” or “how” Plaintiff believes the Product
3 he purchased contained less than ten grams of protein. (Id. at 25.) Bonafide points to “the
4 unspecified nature of the ConsumerLabs.com testing, the absence of detail supporting the
5 purported ‘independent testing’ conducted by Plaintiff’s counsel, and the fact that
6 ConsumerLabs.com testing showed the Chicken Product to contain more protein than
7 stated on its label” as reasoning for why this standard is not met. (Id.)
8 In response, Plaintiff argues that the details alleged in the FAC are specific enough
9 to give Bonafide notice of misconduct, as “‘absolute particularity’” is not required, and
10 challenges to the claim’s merits and a test’s validity need not be addressed at this stage.
11 (Doc. No. 20 at 25) (citations omitted). Additionally, Plaintiff notes the heightened protein
12 values of the Chicken Product arose from a different line of products, not the frozen
13 Products at issue here. (Id. at 15 n.3, 18 n.4.)
14 The Ninth Circuit has established that, under Rule 9(b), a plaintiff must allege fraud
15 with enough specificity “to give defendants notice of the particular misconduct” so
16 defendants “can defend against the charge and not just deny that they have done anything
17 wrong.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (internal quotation
18 marks and citations omitted). Allegations of fraud must therefore “be accompanied by ‘the
19 who, what, when, where, and how’ of the misconduct charged.” Id. (citations omitted).
20 Sufficient details to establish specificity include the “time, place and nature of the alleged
21 fraudulent activities,” Semegen v. Weidner, 780 F.2d 727, 735 (9th Cir. 1985), such that
22 “the defendant can prepare an adequate answer from the allegations.” Walling v. Beverly
23 Enters., 476 F.2d 393, 397 (9th Cir. 1973). Here, Plaintiff has supplied the “who” of the
24 fraud (Bonafide); the “what” (Bonafide’s representation that its Products contain ten grams
25 of protein); the “when” (date of testing and purchase occurred in April 2025); the “where”
26 (the location of Plaintiff’s purchase: Modesto, California); and the “how” (the nature of the
27 alleged fraud: misrepresentation of the ten grams of protein in Bonafide’s Products
28
1 discovered by testing). (Doc. No. 15 ¶ 4.) Plaintiff also provides the method of testing,
2 which “is a sufficiently particularized detail” to satisfy Rule 9(b). Prescott v. Saraya USA,
3 Inc., No. 23-cv-00017-AJB-MMP, 2025 WL 1361486, at *4 (S.D. Cal. May 9, 2025)
4 (finding reference to “FDA-prescribed methodology” sufficient to describe method of
5 testing to satisfy Rule 9(b)); see also Tortilla Factory, LLC v. Health-Ade LLC, No. 17-cv-
6 9090-MWF (AFMX), 2018 WL 6174708, at *10 (C.D. Cal. July 13, 2018) (finding
7 reference to unidentified third-party lab testing sufficient to put Defendant on notice).
8 Further questions regarding testing, including protein amounts in Bonafide’s other
9 Chicken Products from other ConsumerLabs testing, would be improper for the Court to
10 address at this stage, as “the court does not weigh evidence, evaluate witness credibility,
11 or consider the likelihood that a plaintiff will prevail at trial” in a motion to dismiss. Stasi
12 v. Inmediata Health Grp. Corp., 501 F. Supp. 3d 898, 907 (S.D. Cal. 2020) (citing
13 Twombly, 550 U.S. at 556); see also Berk v. Choy, 607 U.S. 187, 187–88 (2026) (noting
14 Rule 12 “prohibit[s] courts from considering ‘matters outside the pleadings’ when
15 evaluating whether a plaintiff has stated a claim . . . The court instead asks only whether
16 the complaint’s factual allegations, if taken as true, ‘state a claim to relief that is plausible
17 on its face’”) (quoting Twombly, 550 U.S. at 570). Plaintiff has therefore provided
18 sufficient details to satisfy the heightened requirements of Rule 9(b). Accordingly,
19 Bonafide’s Motion to Dismiss Plaintiff’s claims under Rule 9(b) is DENIED.
20 2. Reasonable Consumer
21 Second, Bonafide argues that Plaintiff’s claims fail under the “reasonable consumer”
22 test. The “reasonable consumer” test governs claims under the UCL, FAL, and CLRA,
23 Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008), and it requires plaintiffs
24 to “show that members of the public are likely to be deceived.” Id. (internal quotation
25
26
27 2 “ConsumerLab’s independent lab testing analyzed total protein by combustion (AOAC 992.15) and
collagen calculated from hydroxyproline by High Performance Liquid Chromatography (HPLC) (AOAC
28
1 marks and citation omitted). A complaint alleging violation of the UCL, FAL, or CLRA
2 must therefore “allege that the packaging will deceive many consumers, not just that a few
3 might be deceived.” Whiteside v. Kimberly Clark Corp., 108 F.4th 771, 778 (9th Cir. 2024).
4 “This requires more than a mere possibility that [the statements] ‘might conceivably be
5 misunderstood by some few consumers viewing it in an unreasonable manner.’” Ebner v.
6 Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016) (quoting Lavie v. Procter & Gamble Co.,
7 105 Cal. App. 4th 496, 495 (2003)). Under the reasonable consumer test, a product’s labels
8 should be read in context and not in isolation. Miller v. Ghirardelli Chocolate Co., 912 F.
9 Supp. 2d 861, 874 (N.D. Cal. 2012).
10 Bonafide argues that no reasonable consumer would be misled by the Products’
11 labels because Plaintiff has not established that “some or even all” of Bonafide’s Products
12 contain fewer than ten grams of protein, as stated on the label. (Doc. No. 16 at 26.)
13 However, the Court does not “weigh evidence” in a motion to dismiss, Stasi, 501 F. Supp.
14 at 907, but need only consider whether the “claim to relief is plausible on its face,”
15 Twombly, 550 U.S. at 570. The Court has found that Plaintiff plausibly alleges the Products
16 contain less than the advertised amount of protein. Plaintiff thus plausibly alleges that a
17 reasonable consumer would read the Products’ labels and believe the Products would
18 contain the amount of protein advertised. Plaintiff has therefore stated a claim for relief
19 that is plausible on its face. Furthermore, the Ninth Circuit has held that only in rare
20 situations would the reasonable consumer test “raise[] questions of fact that are appropriate
21 for resolution on a motion to dismiss.” Reid v. Johnson & Johnson, 780 F.3d 952, 958 (9th
22 Cir. 2015). Because Plaintiff plausibly alleges the Products’ packaging will deceive many
23 consumers, the Court DENIES Bonafide’s Motion to Dismiss as it relates to the reasonable
24 consumer standard.
25 3. Equitable Relief
26 Third, Bonafide seeks to dismiss Plaintiff’s claims for equitable relief, arguing that
27 Plaintiff has an adequate remedy at law. Specifically, Bonafide argues Plaintiff’s harm is
28 “purely economic” and solely entitled to damages, thus Plaintiff does not “plausibly allege
1 why his harms cannot be cured with monetary damages.” (Doc. No. 16 at 27–28.) Plaintiff
2 seeks both equitable restitution and injunctive relief. (Doc. No. 15 at Prayer for Relief
3 ¶¶ (f)–(g).) Plaintiff argues Bonafide’s argument is premature, as “Plaintiff’s UCL, FAL,
4 and Unjust Enrichment claims are pleaded ‘in the alternative to the extent allowed by Fed.
5 R. Civ. P. 8(d)(2).’” (Doc. No. 20 at 27) (citation omitted). Plaintiff also argues that threat
6 of future harm due to inability to rely on Bonafide’s Products’ labeling in the future is
7 sufficient to establish that Plaintiff lacks an adequate remedy at law. (Id. at 27–29.)
8 The Ninth Circuit has established that plaintiffs cannot recover equitable relief in
9 federal court when they have an adequate remedy at law, including UCL, FAL, and CLRA
10 claims for damages. Sonner v. Premier Nutrition Corp., 971 F.3d 834, 837 (9th Cir. 2020).
11 Plaintiffs bear the burden of establishing that they lack this adequate remedy. Id. at 844.
12 Many district courts have found that plaintiffs may still plead equitable relief in the
13 alternative at this stage, some providing the caveat that plaintiffs must allege that the legal
14 remedies are inadequate. See Barton v. Procter & Gamble Co., 766 F. Supp. 3d 1045, 1067
15 (S.D. Cal. 2025) (dismissing claims for restitution and/or disgorgement because “Plaintiffs
16 here plead no allegations that the legal remedies are inadequate for the restitution or
17 disgorgement that they seek under the UCL and FAL”) (emphasis in original); see also
18 Nacarino v. Chobani, LLC, 668 F. Supp. 3d 881, 897 (N.D. Cal. 2022) (“Plaintiff’s
19 entitlement to seek the equitable remedy of restitution may be revisited at a later stage”);
20 Byton N. Am. Co. v. Breitfeld, No. 19-cv-10563-DMG-JEMX, 2020 WL 3802700, at *9
21 (C.D. Cal. Apr. 28, 2020) (“T]he Ninth Circuit’s general rule is that plaintiffs may plead
22 alternative claims, even if those claims are inconsistent.”). Such findings align with Federal
23 Rule of Civil Procedure 8, which states that a demand for relief “may include relief in the
24 alternative or different types of relief.” See Fed. R. Civ. P. 8(a)(3).
25 Accordingly, the Court finds that Plaintiff may plead equitable restitution in the
26 alternative at the pleading stage. Additionally, Plaintiff sufficiently alleges inadequate legal
27 remedies by alleging that Plaintiff “will be unable to make informed decisions about
28 whether to purchase Defendant’s products and will be unable to evaluate the different
1 prices between Defendant’s Products and competitors’ products” and will be “likely to be
2 repeatedly misled . . . unless and until Defendant is compelled to ensure that the Products’
3 protein content is accurately represented.” (Doc. No. 15 ¶ 5.)
4 As it relates to injunctive relief, in Sonner, the Ninth Circuit explicitly noted
5 “[i]njunctive relief is not at issue.” 971 F.3d at 842. Since Sonner, district courts are split
6 on whether the decision applies to injunctive relief. See Rice v. Kimberly-Clark Corp., No.
7 2:21-cv-01519-DAD-KJN, 2022 WL 16804522, at *3 (E.D. Cal. Nov. 8, 2022) (noting
8 split regarding injunctive relief claims); compare Kryzhanovskiy v. Amazon.com Servs.,
9 Inc., No. 2:21-cv-01292-DAD-BAM, 2022 WL 2345677, at *4 (E.D. Cal. June 29, 2022)
10 (holding that “plaintiff may seek equitable relief in the form of an injunction under the
11 UCL, even if she also seeks monetary damages for past conduct”), with Teresa Adams v.
12 Cole Haan, LLC, No. SACV20913JVSDFMX, 2020 WL 5648605, at *2 (C.D. Cal. Sept.
13 3, 2020) (finding no “exception for injunctions” under Sonner). However, more recently,
14 courts have not applied Sonner to injunctive relief claims, finding that “the prospect of
15 paying damages is sometimes insufficient to deter a defendant from engaging in an alleged
16 unlawful, unfair, or fraudulent business practice.” Brooks v. Thomson Reuters Corp., No.
17 21-cv-01418-EMC, 2021 WL 3621837, at *11 (N.D. Cal. Aug. 16, 2021).
18 Here, the Court is persuaded by the more recent trend of permitting a plaintiff to
19 seek injunctive relief, even if he also seeks monetary damages for past conduct. Money
20 damages are an inadequate remedy for future harm because they may not be sufficient
21 deterrence for fraudulent business practices. See Zeiger v. WETPET LLC, No. 3:17-cv-
22 04056-WHO, 2021 WL 756109, at *21 (N.D. Cal. Feb. 26, 2021) (noting that even
23 assuming Sonner applies to injunctive relief the plaintiff had shown monetary damages
24 were an inadequate remedy because damages compensate for past purchases where an
25 injunction ensures that one can rely on a defendant’s representations in the future). In this
26 case, Plaintiff alleges injunctive relief is sought to mitigate future harm. Thus, the Court
27 finds Plaintiff sufficiently alleges legal remedies are inadequate. Bonafide’s Motion to
28 Dismiss Plaintiff’s claims for equitable restitution and injunctive relief is DENIED.
1 4. Nationwide Class Allegations
2 Finally, Bonafide argues that Plaintiff’s nationwide class allegations are deficient
3 because (1) Plaintiff lacks standing to assert nationwide class claims; (2) California law
4 may not be applied nationwide; and (3) material differences in state laws preclude Plaintiff
5 from representing a nationwide class. (Doc. No. 16 at 29–39.)
6 First, Bonafide argues Plaintiff lacks Article III standing to assert claims under laws
7 of states in which no named plaintiff either resides or has purchased products. (Doc. No.
8 16 at 29–30.) Bonafide, therefore, contends that “every claim based on violation of a state
9 law without a representative plaintiff should be dismissed for lack of standing.” (Id.) Not
10 so.
11 As discussed above, Plaintiff has met the threshold standing question. Thus, this
12 secondary standing analysis relating to Plaintiff’s standing related to the multi-state class
13 is best left for class certification and after further discovery. See Mazza v. Am. Honda Motor
14 Co., 666 F.3d 581, 594 (9th Cir. 2012) (holding that a facts and circumstances analysis of
15 each claim should be “governed by the consumer protection laws of the jurisdiction in
16 which the transaction took place” at the class certification stage); see also Alvarez v. NBTY,
17 Inc., 2017 WL 6059159, at *8 (S.D. Cal. Dec. 6, 2017) (deferring this secondary standing
18 analysis related to the multi-state class until the class certification stage).
19 Second, Bonafide argues California law may not be applied to out-of-state class
20 members because of “serious conflicts between the laws of the 50 states,” thus, the national
21 class claims should be dismissed. (Doc. No. 16 at 30–39.) Bonafide relies on Mazza to
22 contend such conflicts allow for dismissal at the pleading stage. (Id.) Plaintiff argues this
23 is premature and best handled at the class certification stage, especially because Plaintiff is
24 a resident of California. (Doc. No. 20 at 29–30.)
25 In Mazza, the Ninth Circuit held that the district court “abused its discretion in
26 certifying a class under California law that contained class members who purchased or
27 leased their car in different jurisdictions with materially different consumer protection
28 laws.” Mazza, 666 F.3d at 590. After conducting California’s three-step governmental
1 interest test, it held that under “the facts and circumstance of this case,” each “class
2 member’s consumer protection claim should be governed by the consumer protection laws
3 of the jurisdiction in which the transaction took place.” Id. at 590–94.
4 Post Mazza, courts are divided on whether dismissal of a nationwide class is
5 appropriate at the motion to dismiss stage. Compare In re Clorox Consumer Litigation 894
6 F. Supp. 2d 1224, 1237 (N.D. Cal. 2012) (“Since the parties have yet to develop a factual
7 record, it is unclear whether applying different state consumer protection statutes could
8 have a material impact on the viability of Plaintiffs claims.”); Forcellati v. Hyland’s, Inc.,
9 876 F. Supp. 2d 1155, 1159 (C.D. Cal. 2012) (“[I]t would be premature to speculate about
10 whether the difference in various states’ consumer protection laws are material in this
11 case.”); Zapata Fonseca v. Goya Foods Inc., Case No. 16-CV-02559-LHK, 2016 WL
12 4698942, at *3 (N.D. Cal. Sept. 8, 2016) (denying dismissal of nationwide class because
13 Mazza, which was decided at the class certification stage and not on a motion to dismiss,
14 depended heavily on a detailed choice-of-law analysis that compared how various states’
15 consumer protection laws applied to the facts of the plaintiffs’ claims); Sonner v. Schwabe
16 N. Am., Inc., No. EDCV 15-01358-VAP, 2015 WL 13307076, at *8 (C.D. Cal. Nov. 18,
17 2015) (“A detailed choice-of-law analysis would be inappropriate” on a motion to strike);
18 Valencia v. Volkswagen Grp. of America Inc., Case No. 15-cv-00887-HSG, 2015 WL
19 4760707, at *1 (N.D. Cal. Aug. 11, 2015) (“Whether California law differs from the laws
20 of other states in a way that is material to this litigation is not a proper inquiry at the
21 pleading stage.”) (emphasis in original), with Glenn v. Hyundai Motor Am., SACV 15-
22 2052 DOC (KESx), 2016 WL 3621280, at *5 (C.D. Cal. June 24, 2016) (“The Court notes
23 that while Mazza was decided at the class certification stage, the decision ‘applies generally
24 and is instructive when addressing a motion to dismiss.’”) (quoting Frezza v. Google, Inc.,
25 CV 5:12-237 RMW, 2013 WL 1736788, at *6 (N.D. Cal. Apr. 22, 2013)); Davison v. Kia
26 Motors America, Inc., No. 15-cv-0239-CJC (RNBx), 2015 WL 3970502, at *2 (C.D. Cal.
27 2015) (conducting choice of law analysis at motion to dismiss stage). “Mazza did not
28
1 purport to hold that nationwide classes are, as a matter of law, uncertifiable under
2 California’s consumer protection laws.” Forcellati, 876 F. Supp. 2d at 1159.
3 This Court agrees with the “[n]umerous courts [which] have rejected the argument
4 that Mazza (which did not address a motion to dismiss) requires dismissal of
5 nationwide-class claims at the pleading stage.” Kellman v. WFM Private Label, L.P., No.
6 17-CV-06584-LB, 2019 WL 1429576, at *10 (N.D. Cal. Mar. 29, 2019). “California’s
7 choice-of-law rules require a case-by-case analysis of whether there are material
8 differences between the laws of the relevant states and, if so, which state’s interest would
9 be most impaired by application of the other state’s law.” Kanfer v. Pharmacare US, Inc.,
10 142 F. Supp. 3d 1091, 1107–08 (S.D. Cal. 2015) (citing Mazza, 666 F.3d at 590). This
11 analysis is better suited for class certification. The cases where courts did conduct a
12 complete choice-of-law analysis at the pleading stage, are inapposite, as they involved non-
13 California residents asserting that California law should be applied nationwide. See
14 Davison v. Kia Motors Am., Inc., No. SACV 15-00239-CJC, 2015 WL 3970502, at *3
15 (C.D. Cal. June 29, 2015) (holding it was evident that “every state would be impaired in
16 its ability to protect the consumers within its borders if California law were applied to all
17 claims of the nationwide class” as plaintiff was a Washington resident and did not allege
18 she was wronged in California); Frezza v. Google Inc., No. 5:12-CV-00237-RMW, 2013
19 WL 1736788, at *5 (N.D. Cal. Apr. 22, 2013) (holding it was “readily apparent” that
20 plaintiffs’ UCL claims were precluded under Mazza because the transactions at issue
21 occurred in the plaintiffs’ state of North Carolina). Here, Plaintiff is a resident of California
22 and his alleged injury occurred in California. (Doc. No. 15 ¶ 4.) Thus, the Court DENIES
23 Bonafide’s Motion to Dismiss Plaintiff’s claims on this basis. See Kanfer, 142 F. Supp. 3d
24 at 1107–08 (“[W]hether the differences in law are truly material is better suited for
25 resolution at class certification or on a motion for summary judgment, when the Court will
26 have the benefit of a more developed factual record.”); Kellman, 2019 WL 1429576,
27 at *10.
28
1 CONCLUSION
2 For the foregoing reasons, the Court DENIES Bonafide’s Motion to Dismiss in its
3 ||}entirety. The Court finds Plaintiff has standing to bring the claims asserted and has
4 ||adequately pleaded his claims under Federal Rules of Civil Procedure 9(b) and 12(b)(6).
5 ||Bonafide must file an answer to the First Amended Complaint by no later than
6 || September 2, 2026.
7 IT IS SO ORDERED.
8 ||Dated: August 18, 2026
10 United States District Judge
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