1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HEIDI ANDERBERG, individually and Case No.: 3:21-cv-01794-RBM-NLS on behalf of others similarly situated, 12 ORDER DENYING DEFENDANT’S Plaintiff, 13 MOTION TO DISMISS v. PLAINTIFF’S FIRST AMENDED 14 CLASS ACTION COMPLAINT THE HAIN CELESTIAL GROUP, INC., 15 a Delaware Corporation,
16 Defendant. 17
18 [Doc. 16] 19 20 On March 2, 2022, Defendant The Hain Celestial Group, Inc. (“Defendant”) filed a 21 Motion to Dismiss Plaintiff Heidi Anderberg’s (“Plaintiff”) First Amended Class Action 22 Complaint (“Motion”). (Doc. 16.) Plaintiff filed an opposition to the Motion on April 11, 23 2022 (Doc. 19), and Defendant filed a reply on April 18, 2022 (Doc. 20). Plaintiff 24 subsequently filed notices of supplemental authority on June 20, 2022 (Doc. 21) and 25 August 29, 2022 (Doc. 22). For the reasons discussed below, Defendant’s Motion is 26 DENIED. 27 / / / 28 / / / 1 I. BACKGROUND 2 A. Procedural Background 3 On October 20, 2021, Plaintiff filed a Class Action Complaint against Defendant on 4 behalf of herself and others similarly situated. (Doc. 1.) On January 12, 2022, Defendant 5 filed a Motion to Dismiss Plaintiff’s Class Action Complaint. (Doc. 10.) Plaintiff 6 subsequently filed a First Amended Class Action Complaint (“FAC”) on February 2, 2022. 7 (Doc. 13.) The FAC asserts the following causes of action: (1) violation of California’s 8 Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200, et seq.; (2) violation 9 of California’s Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code §§ 1750, et 10 seq.; (3) violation of California’s False Advertising Law (“FAL”), Cal. Bus. & Prof. Code 11 §§ 17500, et seq.; (4) breach of express warranty; and (5) breach of implied warranty. (Id. 12 at 26–34.) On March 2, 2022, Defendant filed the instant Motion requesting the Court 13 dismiss Plaintiff’s FAC with prejudice and without leave to amend. (Doc. 16.) 14 B. Factual Background 15 Plaintiff asserts that Defendant “advertises as an organic and natural products 16 company which participates in almost all natural categories with well-known brands, 17 including Alba Botanica,” which produces sunscreen. (Doc. 13 at 2–3.) It is Plaintiff’s 18 position that Defendant “markets and sells chemical sunscreens with labeling and 19 advertising that leads consumers to believe that the sunscreens are ‘Reef[]Friendly’, when 20 in fact the chemical sunscreens contain active ingredients known to damage coral reefs and 21 the marine life that inhabit them.” (Id. at 3.) The FAC discusses the dangers various 22 chemicals pose to coral reefs and states “[c]hemical sunscreens generally consist of a 23 combination of different chemical ingredients, primarily oxybenzone, octinoxate, and 24 avobenzone, but also include[] other chemicals such as octocrylene and homosalate” each 25 of which “are known to cause harm to coral reefs and marine life.” (Id. at 8.) Thus, Plaintiff 26 argues that Defendant labeling its sunscreen products as “Reef Friendly” is misleading 27 because the products “contain avobenzone, octocrylene, homosalate and octyl salicylate.” 28 (Id. at 13, 19.) 1 Defendant counters that “[i]n 2018, Hawaii banned the use of oxybenzone and 2 octinoxate in sunscreen based on the Hawaii Legislature’s determination that these two 3 specific ingredients are harmful to coral reefs.” (Doc. 16–1 at 7 (citing HAW. REV. STAT. 4 § 342D-21).) Consistent with Hawaii law, Defendant’s Alba Botanica Hawaiian Sunscreen 5 does not contain oxybenzone and octinoxate, which Plaintiff does not dispute. (Id. at 7.) 6 Thus, Defendant argues that Plaintiff’s claims are defective because “[t]he packaging of 7 Alba Botanica Hawaiian Sunscreen does not state—or even suggest—that the sunscreen is 8 free of avobenzone, octocrylene, homosalate, or octyl salicylate” and that “[t]o the 9 contrary, it discloses the presence of these ingredients in the ‘Active Ingredients’ panel,” 10 which appears on the back of the product. (Id.) Defendant’s “Reef Friendly” label refers 11 to the fact that, pursuant to Hawaii law, their sunscreen does not contain oxybenzone and 12 octinoxate. (Id.) 13 The FAC includes Plaintiff’s individual allegations as well as class allegations. 14 (Doc. 13 at 20–26.) In regard to Plaintiff’s individual allegation, she explains she “has 15 been purchasing Alba Botanica Hawaiian Sunscreen Coconut Clear Spray 50 and Alba 16 Botanica Hawaiian Sunscreen Green Tea 45 (cream version) consistently for the past two 17 years for personal and household use.” (Id. at 20.) Plaintiff is “eco-conscious” and 18 “believed the products to have clean chemicals and be reef friendly as advertised.” (Id.) 19 Thus, Plaintiff alleges she “paid an unlawful premium for the product advertised as reef 20 friendly when it in fact is not safe for coral reefs and marine life” and “would not have 21 purchased the products had the product been truthfully advertised.” (Id. at 23.) 22 Accordingly, Plaintiff claims she “was harmed and suffered injury in fact and lost money 23 as a result of Defendant’s false, unfair and fraudulent practices.” (Id.) In regard to 24 Plaintiff’s class allegations, Plaintiff lists a total of fourteen of Defendant’s chemical 25 sunscreens (the “Products”)1 “which bear labeling stating ‘Reef Friendly,’ yet contain 26
27 1 The Products include: (1) Alba Botanica Hawaiian Sunscreen Coconut Clear Spray 50, 28 1 octocrylene and/or avobenzone.” (Id. at 14.) Plaintiff thus brings a class action on behalf 2 of a nationwide class and a California subclass of individuals who, within the applicable 3 limitations period, purchased any of the fourteen products from Defendant. (Id. at 23.) 4 II. LEGAL STANDARD 5 Pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6), an action may be 6 dismissed for failure to allege “enough facts to state a claim to relief that is plausible on its 7 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial 8 plausibility when the plaintiff pleads factual content that allows the court to draw the 9 reasonable inference that the defendant is liable for the misconduct alleged. The 10 plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a 11 sheer possibility that a defendant acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 12 (2009) (internal citations omitted). For purposes of ruling on a Rule 12(b)(6) motion, the 13 Court “accept[s] factual allegations in the complaint as true and construe[s] the pleadings 14 in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine 15 Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). 16 However, the Court is “not bound to accept as true a legal conclusion couched as a 17 factual allegation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Nor is the 18 Court “required to accept as true allegations that contradict exhibits attached to the 19 Complaint or matters properly subject to judicial notice, or allegations that are merely 20 21 22 Kids Sunscreen Tropical Fruit Clear Spray 50, (4) Alba Botanica Sensitive Sunscreen 23 Fragrance Free Clear Spray 50, (5) Alba Botanica Maximum Sunscreen Fragrance Free Clear Spray 70, (6) Alba Botanica Hawaiian Sunscreen Aloe Vera 30 (cream version), (7) 24 Alba Botanica Hawaiian Sunscreen Green Tea (cream version), (8) Alba Botanica 25 Soothing Sunscreen Pure Lavender 45 (cream version), (9) Alba Botanica Kids Sunscreen Tropical Fruit 45 (cream version), (10) Alba Botanica Sport Sunscreen Fragrance Free 45 26 (cream version), (11) Alba Botanica Sweet Pea Sheer Shield Sunscreen 45 (cream version), 27 (12) Alba Botanica Sensitive Sheer Shield Sunscreen 45 (cream version), (13) Alba Botanica Facial Sheer Shield Sunscreen 45 (cream version), and (14) Alba Botanica Fast 28 1 conclusory, unwarranted deductions of fact, or unreasonable inferences.” Daniels-Hall v. 2 Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). “In sum, for a complaint to survive 3 a motion to dismiss, the non-conclusory factual content, and reasonable inferences from 4 that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss 5 v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotation marks omitted). 6 When a Rule 12(b)(6) motion is granted, “a district court should grant leave to amend 7 even if no request to amend the pleading was made, unless it determines that the pleading 8 could not possibly be cured by the allegation of other facts.” Cook, Perkiss & Liehe v. N. 9 Cal. Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990) (citations omitted). 10 III. DISCUSSION 11 A. Request for Judicial Notice 12 A court generally cannot consider materials outside the pleadings on a motion to 13 dismiss for failure to state a claim. FED. R. CIV. P. 12(d). A court may, however, consider 14 materials subject to judicial notice without converting the motion to dismiss into one for 15 summary judgment. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). Under Federal 16 Rule of Evidence 201(b), a court may take judicial notice, either on its own accord or by a 17 party’s request, of facts that are not subject to reasonable dispute because they are (1) 18 “generally known within the trial court’s territorial jurisdiction; or (2) can be accurately 19 and readily determined from sources whose accuracy cannot reasonably be questioned.” 20 FED. R. EVID. 201(b). A court may also take judicial notice of “matters of public record.” 21 Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (internal citations omitted). 22 Finally, under the incorporation by reference doctrine, courts may “take into account 23 documents whose contents are alleged in a complaint and whose authenticity no party 24 questions, but which are not physically attached to the [plaintiff’s] pleading.” Davis v. 25 HSBC Bank Nevada, N.A., 691 F.3d 1152, 1160 (9th Cir. 2012) (internal quotations and 26 citations omitted). The incorporation by reference doctrine “treats certain documents as 27 though they are part of the complaint itself,” Khoja v. Orexigen Therapeutics, Inc., 899 28 F.3d 988, 1002 (9th Cir. 2018), so long as “the plaintiff refers extensively to the document 1 or the document forms the basis of the plaintiff’s claim.” United States v. Ritchie, 342 F.3d 2 903, 907 (9th Cir. 2003). 3 Defendants request the Court take judicial notice of four exhibits: (1) images of the 4 labeling of a lotion version of Alba Botanica Hawaiian Sunscreen (Ex. 1); (2) images of 5 the labeling of a spray version of Alba Botanica Hawaiian Sunscreen (Ex. 2); (3) a copy of 6 a webpage from the Hawaii State Legislature’s website titled “SB132 SD2 HD1” (Ex. 3), 7 and (4) a copy of the current version of Hawaii Senate Bill 132 (Ex. 4). (Doc. 17 at 2.) 8 The Court takes judicial notice of images of the labeling of the lotion and spray 9 versions of Alba Botanica Hawaiian Sunscreen in Exhibits 1 and 2. See Corbett v. 10 PharmaCare U.S., Inc., 567 F. Supp. 3d 1172, 1182 (S.D. Cal. 2021) (“courts addressing 11 motions to dismiss product-labeling claims take judicial notice of images of the product 12 packaging if they are referenced or the images are in the complaint”). The Court also takes 13 judicial notice of copy of a webpage from the Hawaii State Legislature’s website titled 14 “SB132 SD2 HD1” in Exhibit 3 as a publicly available material taken from a “source whose 15 accuracy cannot reasonably be questioned.” FED. R. EVID. 201(b); see U.S. ex rel. Modglin 16 v. DJO Glob. Inc., 48 F. Supp. 3d 1362, 1381 (C.D. Cal. 2014), aff’d sub nom. United 17 States v. DJO Glob., Inc., 678 F. App’x 594 (9th Cir. 2017) (“the court can take judicial 18 notice of [p]ublic records and government documents available from reliable sources on 19 the Internet, such as websites run by governmental agencies”) (internal quotations 20 omitted); see also Hansen Beverage Co. v. Innovation Ventures, LLC, No. 08-CV-1166- 21 IEG POR, 2009 WL 6597891, at *2 (S.D. Cal. Dec. 23, 2009) (“[i]nformation on 22 government agency websites has often been treated as properly subject to judicial notice”). 23 Finally, the Court takes judicial notice of Hawaii Senate Bill 132 in Exhibit 4 as it is a 24 matter of public record. See Stone v. Sysco Corp., No. 16-cv-01145-DAD-JLT, 2016 WL 25 6582598, at *4 (E.D. Cal. Nov. 7, 2016) (citing Ass’n des Eleveurs de Canards et d’Oies 26 du Quebec v. Harris, 729 F.3d 937, 945 n.2 (9th Cir. 2013)) (finding “the court may 27 properly take judicial notice of legislative history, including committee reports”); see also 28 Singh v. IKEA Distribution Servs., Inc., No. 120CV0975NONEJLT, 2021 WL 1907608, at 1 *2 (E.D. Cal. May 12, 2021), report and recommendation adopted, No. 2 120CV0975NONEJLT, 2021 WL 6775890 (E.D. Cal. June 16, 2021) (finding that “the 3 accuracy of the Senate Bills . . . cannot be questioned” and granting judicial notice). 4 B. Standing 5 In addition to Article III standing, a plaintiff must establish standing to bring UCL, 6 CLRA, and FAL claims. See CAL. BUS. & PROF. CODE §§ 17204, 17535; CAL. CIV. CODE 7 § 1780(a). These statutes require the plaintiff show that he or she has suffered an 8 “economic injury.” See Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 323 (2011). The 9 economic injury requirement under the UCL is “substantially narrower than 10 federal standing . . . which may be predicated on a broader range of injuries.” Id. at 324; 11 see Miller v. Ghirardelli Chocolate Co., 912 F. Supp. 2d 861, 868 (N.D. Cal. 2012). 12 Defendant argues Plaintiff “lacks standing to sue as to the twelve products she did 13 not purchase, as she cannot establish that she ‘experienced injury stemming from the 14 purchase’ of those products.” (Doc. 16–1 at 17 (quoting Granfield v. NVIDIA Corp., No. 15 11-5403, 2012 WL 2847575, at *6 (N.D. Cal. July 11, 2012).) Defendant anticipates 16 Plaintiff will argue she has standing to assert claims based on products that are 17 ‘substantially similar’ to those she purchased. (Doc. 16–1 at 17); see Lorentzen v. Kroger 18 Co., 532 F. Supp. 3d 901, 908 (C.D. Cal. 2021) (“[s]ome district courts have held that a 19 plaintiff may bring suit for any ‘substantially similar’ products not actually purchased”). 20 However, Defendant claims Plaintiff will be unsuccessful because the absence of the 21 phrase “Hawaiian Sunscreen” on the packaging “renders the majority of the challenged 22 products fundamentally dissimilar from the two sunscreens Plaintiff allegedly purchased.” 23 (Doc. 16–1 at 17.) “[T]he use of the phrase ‘Hawaiian Sunscreen’ is significant because it 24 clarifies that the sunscreen is free of ingredients that violate Hawaii law (i.e., oxybenzone 25 and octinoxate) and can be used by beachgoers in Hawaii.” (Id.) Thus, Defendant requests 26 the Court dismiss Plaintiff’s claims to the extent they seek to challenge products not labeled 27 as “Hawaiian Sunscreen.” (Id. at 18.) 28 Plaintiff counters that she has standing to assert claims for each of Defendant’s 1 Products because they are substantially similar. (Doc. 19 at 20.) “All of the Products are 2 Defendant’s chemical sunscreen products that are labeled as ‘Reef Friendly,’” and “[a]ll of 3 the Products similarly contain avobenzone, octocrylene, homosalate and/or octyl salicylate 4 – harmful ingredients challenged in Plaintiff’s FAC.” (Id. at 21.) Plaintiff explains that 5 “Defendant’s argument is misguided, as Plaintiff does not challenge the Products’ 6 ‘Hawaiian Sunscreen’ claim. Instead, Plaintiff alleges that the Products’ ‘Reef Friendly’ 7 claim is false and misleading.” (Id.) 8 The Court notes that there is no controlling authority on whether plaintiffs 9 have standing for products they did not purchase. See, e.g., Donohue v. Apple, Inc., 871 F. 10 Supp. 2d 913, 921–22 (N.D. Cal. 2012). Some federal courts have held that a plaintiff 11 lacks standing to assert such claims. See, e.g., Granfield, 2012 WL 2847575, at *6 (“when 12 a plaintiff asserts claims based both on products that she purchased and products that she 13 did not purchase, claims relating to products not purchased must be dismissed for lack 14 of standing”); Mlejnecky v. Olympus Imaging America Inc., No. 2:10–CV–02630 JAM– 15 KJN, at *4 (N.D. Cal. Apr. 19, 2011) (dismissing claims based on products not purchased 16 for failure to allege economic injury under the UCL). Others “hold that a plaintiff may 17 have standing to assert claims for unnamed class members based on products he or she did 18 not purchase so long as the products and alleged misrepresentations are substantially 19 similar.” Miller, 912 F. Supp. 2d at 869; see also Brazil v. Dole Food Co., Inc., No. 12- 20 CV-01831-LHK, 2013 WL 5312418, at *8 (N.D. Cal. Sept. 23, 2013) (quoting Lanovaz v. 21 Twining’s N. Am., Inc., No. 12–2646, 2013 WL 2285221, at *2 (N.D. Cal. May 23, 2013)) 22 (“the substantially similar approach is also consistent with the Ninth Circuit’s warning that 23 courts ‘should not be too rigid in applying standing requirements to proposed classes’”). 24 Some courts have held that the standing inquiry is more appropriately resolved on a motion 25 for class certification. See e.g., Cardenas v. NBTY, Inc., 870 F. Supp. 2d 984, 992–92 (E.D. 26 Cal. 2012); Forcellati v. Hyland’s, Inc., 874 F. Supp. 2d 1155, 1161 (C.D. Cal. 2012). 27 In light of the foregoing, the Court is not inclined to dismiss Plaintiff’s claims for 28 lack of standing at this time. (See Doc. 13 at 14, 21.) To the extent this matter proceeds, 1 the issue may be revisited at the class certification stage. See Forcellati, 876 F. Supp. 2d 2 at 1161 (holding “we agree with the numerous recent decisions that have concluded that 3 Defendants’ argument is better taken under the lens of typicality or adequacy of 4 representation, rather than standing”); see also Brazil, 2013 WL 5312418, at *8 (finding 5 the plaintiff “has adequately demonstrated standing, at least for purposes of surviving a 6 motion to dismiss, to assert substantially similar claims based on products that are 7 substantially similar to the Purchased Products”); Koh v. S.C. Johnson & Son, Inc., No. C- 8 09-00927 RMW, 2010 WL 94265, at *3 (N.D. Cal. Jan. 6, 2010) (denying defendant’s 9 motion to dismiss for lack of standing and deferred ruling on the standing question until 10 class certification). 11 C. California Consumer Protection Statutes 12 The UCL, CLRA, and FAL, which are the basis of Plaintiff’s first, second, and third 13 causes of action, are California consumer protection statutes. The UCL prohibits “unfair 14 competition,” which includes “any unlawful, unfair or fraudulent business act or practice.” 15 CAL. BUS. & PROF. CODE § 17200. California’s CLRA prohibits “unfair methods of 16 competition and unfair or deceptive acts or practices.” CAL. CIV. CODE § 1770. 17 California’s FAL prohibits any “unfair, deceptive, untrue or misleading advertising.” CAL. 18 BUS. & PROF. CODE § 17500. “Because the same standard for fraudulent activity governs 19 all three statutes, courts often analyze the three statutes together.” Hadley v. Kellogg Sales 20 Co., 243 F. Supp. 3d 1074, 1089 (N.D. Cal. 2017); see, e.g., In re Sony Gaming Networks 21 & Customer Data Sec. Breach Litig., 996 F. Supp. 2d 942, 985 (S.D. Cal. 2014) (“[c]ourts 22 often analyze these statutes together because they share similar attributes”); Consumer 23 Advocates v. Echostar Satellite Corp., 113 Cal. App. 4th 1351, 1360 (2003) (analyzing the 24 UCL, CLRA, and FAL together). 25 a. “Reasonable Consumer” Standard 26 Claims made under the UCLA, CLRA, and FAL are governed by the “reasonable 27 consumer” standard. Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008); 28 Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016). Under this standard, a plaintiff 1 must “show that ‘members of the public are likely to be deceived.’” Ebner, 838 F.3d at 2 965 (quoting Williams, 552 F.3d at 938). This standard “requires more than a mere 3 possibility that [the] label ‘might conceivably be misunderstood by some few consumers 4 viewing it in an unreasonable manner.’” Becerra v. Dr. Pepper/Seven Up, Inc., 945 F.3d 5 1225, 1228 (9th Cir. 2019) (quoting Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 6 496, 508 (2003)). Rather, it must be “probable that a significant portion of the general 7 consuming public or of targeted consumers, acting reasonably in the circumstances, could 8 be misled.” Lavie, 105 Cal. App. 4th at 508; see also White v. Kroger Co., No. 21-CV- 9 08004-RS, 2022 WL 888657, at *1 (N.D. Cal. Mar. 25, 2022). In general, “[t]he question 10 of whether a business practice is deceptive in most cases presents a question of fact not 11 amenable to resolution on a motion to dismiss.” Hairston v. S. Beach Beverage Co., No. 12 CV 12-1429-JFW DTBX, 2012 WL 1893818, at *4 (C.D. Cal. May 18, 2012) 13 (citing Williams, 552 F.3d at 938). 14 In the Motion, Defendant argues Plaintiff’s FAC should be dismissed because 15 Plaintiff has not plausibly alleged that the term “Reef Friendly” is deceptive and would 16 mislead a reasonable consumer. (Doc. 16–1 at 10–11.) Defendant contends that their 17 labeling is not misleading because when viewed “as a whole” the packaging makes clear 18 that “Reef Friendly” refers only to the absence of oxybenzone and octinoxate. (Id.) 19 Defendant states that “[w]hatever the term ‘Reef Friendly’ might mean in isolation, the 20 packaging makes clear that this term—as used on the labeling of a product marketed as 21 ‘Hawaiian Sunscreen’—refers to the absence of oxybenzone and octinoxate, the two 22 chemicals specifically prohibited by Hawaii law.” (Id.) Moreover, “the small, stylized 23 ‘Reef Friendly’ statement does not appear by itself on the packaging of the products 24 Plaintiff purchased. Instead, the packaging makes clear what ‘Reef Friendly’ means: ‘no 25 oxybenzone [or] octinoxate.’” (Id.) 26 As an initial matter, Plaintiff explains that “whether or not a reasonable consumer is 27 misled is ‘typically a question of fact not appropriate for determination [on a motion to 28 dismiss].’” (Doc. 19 at 13–14 (quoting Williams, 552 F.3d at 938).) Thus, “whether 1 reasonable consumers would understand ‘Reef Friendly’ to mean that (i) the Products do 2 not contain ingredients that are harmful to reefs, or (ii) the Products do not contain two 3 ingredients that are harmful to reefs but contain four other ingredients that are harmful to 4 reefs,” is not a question to be decided at this time. (Doc. 19 at 16.) However, it is Plaintiff’s 5 position that “Defendant has made material misrepresentations and omissions, both 6 directly and indirectly, related to their Products advertised as ‘Reef[]Friendly’” and that 7 “Defendant’s conduct . . . is misleading, unfair, unlawful and is injurious to consumers who 8 purchased the Products and were deceived by Defendant’s misrepresentations.” (Doc. 13 9 at 27.) In particular, Plaintiff argues “that the Products do not contain two harmful 10 ingredients does not make the ‘Reef Friendly’ claim truthful where the Products contain 11 four other ingredients that are harmful to reefs.” (Doc. 19 at 15.) Moreover, Plaintiff 12 contends that “Defendant’s disclosure of the Products’ active ingredients on the Products’ 13 rear label does not immunize it from liability for its false advertising that the Products are 14 ‘Reef Friendly.’” (Id. at 17.) 15 The Court finds that whether or not a reasonable person would be misled by the 16 “Reef Friendly” label on Defendant’s Products is not fit for determination on a motion to 17 dismiss in this case. See Linear Technology Corp. v. Applied Materials, Inc., 152 Cal. 18 App. 4th 115, 134–35 (2007) (quoting McKell v. Washington Mutual, Inc., 142 Cal. App. 19 4th 1457, 1472 (2006)) (“[w]hether a practice is deceptive, fraudulent, or unfair is 20 generally a question of fact which requires ‘consideration and weighing of evidence from 21 both sides’ and which usually cannot be made on demurrer”); see also Pelayo v. Nestle 22 USA, Inc., 989 F. Supp. 2d 973, 978 (C.D. Cal. 2013) (“[t]he question of whether a business 23 practice is deceptive in most cases presents a question of fact not amenable to resolution 24 on a motion to dismiss”); Rooney v. Cumberland Packing Corp., No. 12-CV-0033-H DHB, 25 2012 WL 1512106, at *3 (S.D. Cal. Apr. 16, 2012) (quoting Williams, 552 F.3d at 939) 26 (“it is a ‘rare situation’ where granting a motion to dismiss claims under the UCL is 27 appropriate”); Pelayo, 989 F. Supp. 2d at 978 (where a court “can conclude as a matter of 28 law that members of the public are not likely to be deceived by the product packaging, 1 dismissal is appropriate”). Here, the Court cannot conclude, as a matter of law, that a 2 reasonable consumer would not be deceived by the “Reef Friendly” label on Defendant’s 3 packaging. See Allred v. Frito-Lay N. Am., Inc., No. 17-CV-1345 JLS (BGS), 2018 WL 4 1185227, at *5 (S.D. Cal. Mar. 7, 2018) (“[t]he Court cannot conclude as a matter of law 5 that a reasonable consumer would not be deceived by the packaging and ingredient list”); 6 see also Allred v. Frito-Lay N. Am., Inc., No. 17-CV-1345 JLS (BGS), 2018 WL 1185227, 7 at *5 (S.D. Cal. Mar. 7, 2018) (holding that “the Court cannot determine at [the motion to 8 dismiss] stage whether the Product’s advertising was false or misleading”). 9 Accepting as true all allegations in the FAC, it is plausible that statements on the 10 Products’ packaging could deceive a reasonable consumer. Accordingly, the Court 11 concludes that this does not amount to the “rare situation” in which dismissing Plaintiff’s 12 UCL, CLRA, and FAL claims is appropriate. See Williams, 552 F.3d at 939. 13 b. “Unlawful, Unfair, or Fraudulent” under the UCL 14 As noted previously, the UCL prohibits “unfair competition,” which includes “any 15 unlawful, unfair or fraudulent business act or practice.”2 CAL. BUS. & PROF. CODE §17200. 16 In addition to arguing that their labeling is not deceptive, Defendant contends that 17 Plaintiff’s claims also fail under the “unlawful” and “unfair” prongs of the UCL. (Doc. 18 16–1 at 15–16.) 19 The FAC alleges that Defendant’s business practices violate the unfair prong of the 20 UCL because Defendant’s “conduct is substantially injurious to consumers, offends public 21 policy, and is immoral, unethical, oppressive, and unscrupulous, as the gravity of the 22 conduct outweighs any alleged benefits.” (Doc. 19 at 26–27.) Moreover, as discussed in 23 detail supra, the FAC contains sufficient allegations that Defendant has made material 24 25 26 2 A business practice is fraudulent pursuant to section 17200 if it is “likely to deceive the 27 public.” Klein v. Chevron U.S.A., Inc., 202 Cal. App. 4th 1342, 1380 (2012), as modified on denial of reh’g (Feb. 24, 2012). Whether or not Defendant’s labeling is likely to deceive 28 1 representations and omissions related to Defendant’s Products advertised as “Reef 2 Friendly” and that Defendant’s conduct “was and continues to be of no benefit to 3 purchasers of the Products.” (Id. at 27.) The FAC also alleges violation of the unlawful 4 prong as Defendant’s business practices violate the CLRA and FAL. (Id. at 28.) 5 In light of the foregoing, the Court finds that Plaintiff’s FAC sufficiently alleges 6 “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 7 570; Iqbal, 556 U.S. at 678. Moreover, Defendant did not show Plaintiff failed to meet the 8 reasonable consumer standard. Therefore, the Court DENIES Defendant’s Motion to 9 dismiss Plaintiff’s UCL, CLRA, and FAL claims, which are Plaintiff’s first, second, and 10 third causes of action. 11 D. Breach of Express Warranty 12 Plaintiff’s fourth cause of action alleges breach of express warranty. (Doc. 13 at 32– 13 33.) Defendant argues that “Plaintiff’s failure to allege a plausible claim of deception is 14 also fatal to her claim[] for breach of express [] warranty” and that this cause of action 15 should be dismissed with prejudice. (Doc. 16–1 at 18, 23.) 16 California Commercial Code § 2313 provides that “(a) [a]ny affirmation of fact or 17 promise made by the seller to the buyer which relates to the goods and becomes part of the 18 basis of the bargain creates an express warranty that the goods shall conform to the 19 affirmation or promise,” and “(b) [a]ny description of the goods which is made part of the 20 basis of the bargain creates an express warranty that the goods shall conform to the 21 description.” CAL. COM. CODE § 2313. To plead a claim for breach of express warranty, 22 the plaintiff “must allege the exact terms of the warranty, plaintiff’s reasonable reliance 23 thereon, and a breach of that warranty which proximately causes plaintiff injury.” Williams 24 v. Beechnut Nutrition Corp., 185 Cal. App. 3d 135, 142 (Ct. App. 1986). 25 Plaintiff’s FAC alleges that: (1) Defendant expressly warranted on the packaging of 26 the Products that they are “Reef Friendly,” (2) Plaintiff and members of the class 27 reasonably and justifiably relied on the express warranty, (3) Defendant breached the 28 express warranty by selling the Products, which contain ingredients that are not reef 1 friendly, and (4) Plaintiff and members of the class paid a premium price for the Products 2 but did not obtain the full value of the Products as represented.” (Doc. 13 at 33.) It is 3 Plaintiff’s position that, had she and the class members “known of the true nature of the 4 Products, they would not have purchased the Products or would not have been willing to 5 pay the premium price associated with the Products.” (Id.) 6 The Court finds the allegations in the FAC sufficient to state a claim for breach of 7 express warranty. See Iqbal, 556 U.S. at 678. Therefore, the Court DENIES Defendant’s 8 Motion to dismiss Plaintiff’s fourth cause of action for breach of express warranty. 9 E. Breach of Implied Warranty 10 Plaintiff’s fifth cause of action alleges breach of implied warranty. (Doc. 13 at 33– 11 34.) Defendant argues that “Plaintiff has not stated a plausible breach of implied warranty 12 claim” because Plaintiff does not allege the Products are unfit for use “[n]or does she 13 dispute that the sunscreen delivers all of the sun protection advertised on the labeling.” 14 (Doc. 16–1 at 18, 20.) Rather, Plaintiff alleges “the sunscreen does not conform to the 15 representation that it is ‘Reef Friendly.’” (Doc. 16–1 at 20.) 16 California Commercial Code § 2314 provides that “a warranty that the goods shall 17 be merchantable is implied in a contract for their sale if the seller is a merchant with respect 18 to goods of that kind.” CAL. COM. CODE § 2314(1). It also explains that “[g]oods to be 19 merchantable must be at least such as . . . (f) [c]onform to the promises or affirmations of 20 fact made on the container or label if any.” CAL. COM. CODE § 2314(2)(f). 21 The FAC alleges that Defendant is a merchant with respect to the sale of sunscreen 22 products and, therefore, a warranty of merchantability is implied in every contract for sale. 23 (Doc. 13 at 34.) Moreover, “[b]y advertising the Products with their current labeling, 24 Defendant made a promise on the label of the Products that the Products are ‘Reef 25 Friendly.’” (Id.) However, the Products do not conform to the promises made on the label 26 because the Products are not “Reef Friendly” and contain ingredients harmful to reefs. (Id.) 27 Thus, Plaintiff explains that, had she and the class members “known that the products were 28 not ‘Reef Friendly,’ they would not have been willing to pay the premium price associated 1 with them or would not have purchased them at all.” (Id.) 2 The Court find Plaintiff’s pleading sufficiently states a claim for relief as the statute 3 provides that goods shall “[c]onform to the promises or affirmations of fact made on the 4 container or label . . . .” CAL. COM. CODE § 2314(2)(f); see White, 2022 WL 888657, at *3 5 (finding the plaintiff adequately pled breach of implied warranty when alleging contents of 6 product did not conform to the promises made on the packaging and labeling). Therefore, 7 the Court DENIES Defendant’s Motion to dismiss Plaintiff’s fifth cause of action for 8 breach of implied warranty. 9 F. Equitable Relief 10 Lastly, Defendant argues that “even if this Court does not dismiss Plaintiff’s lawsuit 11 outright, it should nonetheless dismiss her claims to the extent they seek restitution, an 12 injunction, and other equitable relief.” (Doc. 16–1 at 21.) It is Defendant’s position that 13 Plaintiff cannot seek equitable relief under California’s consumer protection statutes 14 without establishing that she lacks an adequate remedy at law. (Id. (citing Sonner v. 15 Premier Nutrition Corp., 971 F.3d 834, 844 (9th Cir. 2020).) Defendant explains that 16 “[s]everal of Plaintiff’s claims permit her to recover money damages, and those damages 17 would adequately compensate her for her alleged injury—i.e., the supposed ‘price 18 premium’ she allegedly paid due to [Defendant’s] use of the phrase ‘Reef Friendly’ on the 19 labeling . . . .” Thus, Plaintiff is barred from seeking equitable relief. 20 Plaintiff counters that “the gravamen of Plaintiff’s claims is that Defendant’s 21 marketing and advertising of the Products as ‘Reef Friendly’ misleads consumers.” (Doc. 22 19 at 28.) Thus, “[t]he injury to consumers cannot be fully compensated through an award 23 of monetary damages because the Products as currently labeled are deceptive and 24 misleading and injunctive relief is necessary to put a stop to the continuing harm.” (Id.) 25 “A legal remedy is not adequate in these circumstances, and it is appropriate to permit 26 Plaintiff to assert the equitable remedy of an injunction.” (Id.) 27 Here, the Court finds Plaintiff may lack an adequate legal remedy for future harm 28 such that barring equitable remedies is unjustified at this time. See Deras v. Volkswagen 1 || Group of America, Inc., 2018 WL 2267448, at *6 (N.D. Cal. May 17, 2018) (court finding 2 || “no bar to the pursuit of alternative remedies at the pleadings stage” where plaintiffs argued 3 ||legal remedy was inadequate) (citing Aberin v. Am. Honda Motor Co., Inc., 2018 WL 4 || 1473085, at *9 (N.D. Cal. Mar. 26, 2018)) Gnternal quotations omitted). The main 5 ||allegation in this action is that the “Reef Friendly” label on Defendant’s Products is 6 ||misleading to consumers because the ingredients in the Products are harmful to reefs. 7 ||(Doc. 13 at 13, 19.) Although monetary damages may ultimately fully address Plaintiff’s 8 ||harm, at this stage of the litigation there is “an ongoing, prospective nature to □□□□□□□□□□□□ 9 || allegations]” given her contention that she and other future purchasers will continue to be 10 || misled. Aerojet Rocketdyne, Inc. v. Global Aerospace, Inc., No. 2:17-cv-01515-KJM-AC, 11 }}2020 WL 3893395, at *5 (E.D. Cal. July 10, 2020). Taken together, and viewed in the 12 most favorable to Plaintiff, the allegations of the FAC are “sufficient to suggest a 13 likelihood of future harm amenable to injunctive relief” such that the Court will not bar 14 || equitable relief at this stage of the proceedings. See id. 15 IV. CONCLUSION 16 Accepting all factual allegations in the FAC as true and construing the pleadings in 17 || the light most favorable to Plaintiff, the Court finds Plaintiff's FAC is sufficient to survive 18 || Defendant’s Motion. Accordingly, Defendant’s Motion (Doc. 16) is DENIED. 19 IT IS SO ORDERED. 20 ||DATE: January 26, 2022 21 _ Ae Earns, Qe orargps 79 HON. RUTH BERMUBEZ MONTENEGRO UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 16