Christina Thurner v. Walmart, Inc.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTINA THURNER, No. 2:25-cv-01530-DAD-SCR 12 Plaintiff, 13 v. ORDER DENYING DEFENDANT’S MOTION TO DISMISS 14 WALMART, INC., (Doc. No. 7) 15 Defendant.

16 17 This matter is before the court on defendant Walmart, Inc.’s motion to dismiss plaintiff’s 18 complaint. (Doc. No. 7.) On August 27, 2025, defendant’s motion was taken under submission 19 pursuant to Local Rule 230(g). (Doc. No. 19.) For the reasons explained below, the court will 20 deny defendant’s motion to dismiss. 21 BACKGROUND 22 On June 2, 2025, plaintiff Christina Thurner filed her complaint initiating this false 23 advertising class action in this court. (Doc. No. 1.) In her complaint, plaintiff alleges the 24 following. 25 In the summer or early fall of 2024, plaintiff purchased Parent’s Choice Diaper Rash 26 Ointment (“the Product”) from one of defendant’s stores. (Id. at ¶ 14.) Defendant manufactures, 27 distributes, advertises, markets, and sells the Product. (Id. at ¶ 1.) The front of the Product’s 28 packaging states that the product is “hypoallergenic.” (Id.) Plaintiff provides multiple sources, 1 including government agencies and dictionaries, for the definition of “hypoallergenic.” (Id. at ¶¶ 2 28–30.) These sources define hypoallergenic as, alternatively, “having little likelihood of causing 3 an allergic response[,]” being “designed to reduce or minimize the possibility of an allergic 4 response, as by containing relatively few or no potentially irritating substances[,]” or 5 “produc[ing] fewer allergic reactions than other [similar] products.” (Id.) 6 The Product contains lanolin, a waxy substance obtained from the fleece of sheep that has 7 been used in some topical therapeutic and cosmetic preparations. (Id. at ¶¶ 21, 36.) Lanolin is 8 recognized as a common allergen among infants and children and a common cause of allergic 9 contact dermatitis in that group. (Id. at ¶ 39.) Moreover, lanolin is not recommended for use on 10 children under two due to their immature skin barrier. (Id. at ¶ 45.) Accordingly, plaintiff alleges 11 that lanolin, as a known allergen, is not hypoallergenic and that the Product, because it contains 12 lanolin, is also not hypoallergenic. (Id. at ¶¶ 59, 61.) 13 Plaintiff seeks to represent a class of all persons in California who have purchased the 14 Product. (Id. at ¶ 80.) On behalf of herself and the class, plaintiff brings three claims under 15 California law: (1) violation of California’s Consumers Legal Remedies Act (“CLRA”), 16 California Civil Code §§ 1750, et seq.; (2) violation of California’s Unfair Competition Law 17 (“UCL”), California Business and Professions Code §§ 17200, et seq.; and (3) breach of express 18 warranty as defined by California Commercial Code § 2313. (Id. at ¶¶ 92–127.) Plaintiff seeks 19 injunctive relief pursuant to her first and second claims, equitable relief in the form of restitution 20 pursuant to her second claim, and attorneys’ fees pursuant to her first claim. (Id. at ¶¶ 105, 118.) 21 On July 18, 2025, defendant filed the pending motion to dismiss plaintiff’s complaint. 22 (Doc. No. 7.) On August 22, 2025, plaintiff filed her opposition, and on August 29, 2025, 23 defendant filed its reply. (Doc. Nos. 18, 20.) 24 LEGAL STANDARD 25 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal 26 sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 27 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of 28 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 1 F.2d 696, 699 (9th Cir. 1988). A plaintiff is required to allege “enough facts to state a claim to 2 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A 3 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 4 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 5 Iqbal, 556 U.S. 662, 678 (2009). 6 In determining whether a complaint states a claim on which relief may be granted, the 7 court accepts as true the allegations in the complaint and construes the allegations in the light 8 most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. 9 United States, 915 F.2d 1242, 1245 (9th Cir. 1989), abrogated on other grounds by DaVinci 10 Aircraft, Inc. v. United States, 926 F.3d 1117 (9th Cir. 2019). However, the court need not 11 assume the truth of legal conclusions cast in the form of factual allegations. U.S. ex rel. Chunie v. 12 Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed 13 factual allegations, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me 14 accusation.” Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere “labels and 15 conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. 16 at 555; see also Iqbal, 556 U.S. at 676 (“Threadbare recitals of the elements of a cause of action, 17 supported by mere conclusory statements, do not suffice.”). Moreover, it is inappropriate to 18 assume that the plaintiff “can prove facts that it has not alleged or that the defendants have 19 violated the . . . laws in ways that have not been alleged.” Associated Gen. Contractors of Cal., 20 Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). 21 DISCUSSION 22 A. UCL Claim (Claim 2) 23 Defendant argues that plaintiff has failed to allege facts sufficient to show that she lacks 24 an adequate remedy at law as is required to seek equitable relief or sufficient to demonstrate 25 standing to seek injunctive relief. (Doc. No. 7-1 at 11–13.) The court addresses each of these 26 arguments below. 27 ///// 28 ///// 1 1. Injunctive Relief 2 The Ninth Circuit has held that “a previously deceived consumer may have standing to 3 seek an injunction against false advertising or labeling, even though the consumer now knows or 4 suspects that the advertising was false at the time of the original purchase, because the consumer 5 may suffer an actual and imminent, not conjectural or hypothetical threat of future harm.” 6 Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 969 (9th Cir. 2018) (internal quotation marks 7 omitted) (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)). “An actionable 8 cognizable injury exists where a plaintiff alleges that they cannot rely on defendant’s labeling 9 when deciding whether to purchase products in the future.” Roper v. Big Heart Pet Brands, Inc., 10 510 F. Supp. 3d 903, 916 (E.D. Cal. 2020) (citing Davidson, 889 F.3d at 970–71). Plaintiff has 11 alleged that she “would like to, and would, purchase the Product again if it conform[ed] to the 12 representations on the Product’s packaging” but that “Plaintiff is unable to rely on the Product’s 13 labeling when deciding in the future whether to purchase” the Product. (Doc. No. 1 at ¶ 73.) 14 This allegation is sufficient to establish standing for purposes of seeking injunctive relief. See 15 Timmins v. Walmart, Inc., 790 F. Supp. 3d 931, 939–40 (E.D. Cal. 2025) (finding that similar 16 allegations satisfy the requirements for standing recognized by the Ninth Circuit in Davidson 17 because they are “the precise examples the court provided that would establish standing”). 18 Accordingly, the court will deny defendant’s motion to dismiss plaintiff’s request for 19 injunctive relief. 20 2. Equitable Relief 21 Before the court can consider the merits of an equitable claim, it must determine whether 22 it has equitable jurisdiction. Guzman v. Polaris Indus. Inc., 49 F.4th 1308, 1314 (9th Cir. 2022) 23 (“Equitable jurisdiction is distinct from subject matter jurisdiction, although both are required for 24 a federal court to hear the merits of an equitable claim.”) (citing Schlesinger v. Councilman, 420 25 U.S. 738, 754 (1975)). “For a district court to have equitable jurisdiction, and thus entertain a 26 request for equitable relief, the plaintiff must have no adequate legal remedy.” Forrett v. 27 Gourmet Nut, Inc., 634 F. Supp. 3d 761, 768 (N.D. Cal. 2022) (citing Sonner v. Premier Nutrition 28 Corp., 971 F.3d 834, 844 (9th Cir. 2020)). A plaintiff seeking equitable relief must “establish 1 that she lack[s] an adequate remedy at law[.]” Sonner, 971 F.3d at 844. “For this reason, courts 2 generally require plaintiffs seeking equitable relief to allege some facts suggesting that damages 3 are insufficient to make them whole.” Rodriguez v. FCA US LLC, No. 8:22-cv-01445-FWS-JDE, 4 2023 WL 3150075, at *3 (C.D. Cal. Mar. 21, 2023); see also Ibarra v. Pharmagenics LLC, 660 F. 5 Supp. 3d 914, 922 (C.D. Cal. 2023) (“In order to assert a claim for equitable relief, the complaint 6 must allege that the plaintiff lacks an adequate legal remedy.”) (internal quotation marks omitted). 7 However, district courts are divided on whether a plaintiff is required at the pleading stage to 8 allege specific facts as to the lack of adequate legal remedy. See Watson v. Crumbl LLC, 736 F. 9 Supp. 3d 827, 839–40 (E.D. Cal. 2024) (discussing the split among district courts in the Ninth 10 Circuit as to the applicable pleading standard in assessing allegations of the lack of an adequate 11 remedy at law). 12 Defendant argues that plaintiff has an adequate remedy at law in the form of monetary 13 damages to compensate her for her past purchase. (Doc. No. 7-1 at 11–12.) Plaintiff argues first 14 that she has explicitly alleged that no adequate remedy at law exists and that she has also alleged 15 that the various applicable statutes of limitations would cause some class members to be time- 16 barred from asserting a claim other than one for equitable relief under the UCL. (Doc. No. 18 at 17 17–18.) Plaintiff also contends that the scope of actionable conduct under the “unfair prong” of 18 the UCL is broader than the scope of the other causes of action asserted in this case, and that this 19 shows, for at least some conduct at issue, there would be no adequate remedy at law. (Id.) 20 The undersigned has previously adopted the liberal pleading standard employed “by the 21 majority of judges in the Northern District of California and by judges in this district” that the 22 pleading standard recognized by the Ninth Circuit in Sonner is satisfied where a plaintiff 23 explicitly alleges that they lack an adequate legal remedy. Wong v. Iovate Health Scis. U.S.A. 24 Inc., No. 2:24-cv-00901-DAD-CKD, 2025 WL 821451, at *4–5 (E.D. Cal. Mar. 14, 2025) 25 (quoting Murphy v. Olly Pub. Benefit Corp., 651 F. Supp. 3d 1111, 1129 (N.D. Cal. 2023)). 26 Here, plaintiff has expressly alleged that “no adequate remedy at law exists.” (Doc. No. 1 at ¶ 76.) 27 As it has before, this court concludes that such an allegation is sufficient at this stage of litigation 28 ///// 1 to state a claim for equitable relief.1 See Timmins, 790 F. Supp. 3d at 939 (“To seek equitable 2 remedies at the pleading stage, a plaintiff need only allege that they might lack an adequate 3 remedy at law.”) (citing Valiente v. Simpson Imps., Ltd., 717 F. Supp. 3d 888, 906–07 (N.D. Cal. 4 2024) (collecting cases). 5 Because defendant moves to dismiss plaintiff’s UCL claim solely on the grounds that 6 plaintiff has not alleged sufficient facts to confer equitable jurisdiction or standing to seek 7 injunctive relief, the court will deny defendant’s motion to dismiss plaintiff’s claim brought 8 pursuant to the UCL. 9 B. CLRA and Breach of Express Warranty (Claims 1 and 3) 10 Defendant next argues that plaintiff has not sufficiently alleged facts that, if proven, would 11 demonstrate that a reasonable consumer would be misled by the representation that the Product 12 was hypoallergenic.2 (Doc. No. 7-1 at 8–10.) Specifically, defendant argues that plaintiff has 13 proposed contradictory definitions of hypoallergenic as having “no allergens” and as being 14 “designed to reduce or minimize the possibility of an allergic response, as by containing relatively 15 few or no potentially irritating substances.” (Id.) Plaintiff retorts that her allegations in this 16 regard are instead based upon how the Food and Drug Administration (“FDA”) has described the 17 term “hypoallergenic” as well as some dictionary definitions, but that she has never alleged that 18 hypoallergenic means “no allergens.” (Doc. No. 18 at 11–12.) 19 1 The court observes that plaintiff’s arguments as to why an adequate remedy at law is lacking in 20 this action—namely that the statute of limitations has run on some class members’ claims and that the UCL provides a broader scope of actionable conduct then the other claims asserted—have 21 been rejected. See Guzman v. Polaris Indus. Inc., 49 F.4th 1308, 1311 (9th Cir. 2022) (“[W]e conclude that Albright had an adequate remedy at law through his CLRA claim for damages, 22 even though he could no longer pursue it, and that the district court was therefore required to 23 dismiss his equitable UCL claim [at summary judgment].”); see also Gradney v. Polar Beverages, 797 F. Supp. 3d 1016, 1029 (N.D. Cal. 2025) (finding that the scope of the claim for 24 equitable restitution pursuant to the UCL’s unfair prong did not differ from that of the claim for damages pursuant to the CLRA because both were based upon a representation on product 25 packaging being misleading). Nevertheless, the court concludes that plaintiff’s allegations are sufficient to survive the pending motion to dismiss in light of the applicable pleading standard. 26

27 2 Defendant argues that plaintiff’s breach of express warranty claim fails for the same reason that her CLRA claim fails. (Doc. No. 7-1 at 11.) Accordingly, the court analyzes these claims 28 together. 1 California’s CLRA prohibits “not only advertising which is false, but also advertising 2 which[,] although true, is either actually misleading or which has a capacity, likelihood[,] or 3 tendency to deceive or confuse the public.” Williams v. Gerber Products Co., 552 F.3d 934, 938 4 (9th Cir. 2008) (internal quotation marks omitted) (quoting Kasky v. Nike, Inc., 27 Cal. 4th 939, 5 950 (2002)). “Claims under [the CLRA] are governed by the ‘reasonable consumer’ standard, 6 which requires a plaintiff to ‘show that members of the public are likely to be deceived’ by the 7 defendant’s marketing claims.” Whiteside v. Kimberly Clark Corp., 108 F.4th 771, 777 (9th Cir. 8 2024) (quoting Williams, 552 F.3d at 938). The reasonable consumer standard requires a plaintiff 9 to allege facts that, if proven, would establish there is a non-negligible probability that a 10 significant portion of reasonable targeted consumers could be misled. Mars Petcare US, Inc., 966 11 F.3d at 1017. “California courts have observed that generally, ‘whether a business practice is 12 deceptive will usually be a question of fact not appropriate for decision [at the pleadings stage].” 13 Li v. Amazon.com Servs., LLC, --- F. Supp. 3d ---, 2024 WL 4336432, at *9 (W.D. Wash. 2024) 14 (quoting Whiteside, 108 F.4th at 778) (alteration in original). 15 California Commercial Code § 2313, which defines the term “express warranty,” applies 16 to “transactions in goods.” Cal. Com. Code § 2102; see also Cal. Civ. Code § 1791.2(a)(1) 17 (defining “express warranty” as “[a] written statement arising out of a sale to the consumer of a 18 consumer good pursuant to which the manufacturer, distributor, or retailer undertakes to preserve 19 or maintain the utility or performance of the consumer good or provide compensation if there is a 20 failure in utility or performance.”). Under California Commercial Code § 2313, “[t]o prevail on a 21 breach of express warranty claim, a plaintiff must prove that the seller ‘(1) made an affirmation of 22 fact or promise or provided a description of its goods; (2) the promise or description formed part 23 of the basis of the bargain; (3) the express warranty was breached; and (4) the breach caused 24 injury to the plaintiff.’” Viggiano v. Hansen Nat. Corp., 944 F. Supp. 2d 877, 893 (C.D. Cal. 25 2013) (citation omitted). 26 Defendant does not dispute that the Product contains an allergen, but only that the term 27 “hypoallergenic” would not have misled a reasonable consumer. (Doc. No. 7-1 at 8–10.) First, 28 defendant argues that plaintiff alleges that a product being advertised “hypoallergenic” would be 1 understood as containing no known allergens. (Id. at 9.) In this regard, defendant is simply 2 mistaken: Plaintiff alleges that “hypoallergenic,” based on dictionary definitions, would cause a 3 reasonable consumer to believe “that a hypoallergenic product is less likely to cause an allergic 4 response because it is formulated to minimize the presence of common allergens.” (Doc. No. 1 at 5 ¶¶ 30–31.) Second, defendant argues that plaintiff has merely alleged the presence of a known 6 allergen, but has failed to allege that the presence of that allergen renders the product not 7 “designed to reduce or minimize the possibility of an allergic response.” (Doc. No. 7-1 at 10.) In 8 this regard, defendant urges that the court require that plaintiff make allegations comparing the 9 effect of the Product to other competing products. (Id.) The Ninth Circuit has previously rejected 10 such an argument, stating as follows: 11 Despite the linguistic ambiguity, and notwithstanding its obligation to view the SAC in the light most favorable to Souter, the district 12 court assembled its own definition of the term “hypoallergenic.” The court reasoned that a consumer would focus on the overall 13 comparative effect of the product in relation to other products rather than the effects of the product’s ingredients, and it faulted Souter for 14 failing to allege (1) that a reasonable consumer would assume that the Hand Wipes have “no potential allergens”; (2) that Souter 15 “suffered an allergic reaction after using the product;” or (3) that the product “has a higher likelihood of causing a reaction as compared 16 to similar product on the market.” These specifications are not compelled by our caselaw and are no more plausible than the well- 17 pled allegations offered in the SAC. At the motion to dismiss stage, it was improper for the district court to select between competing 18 plausible interpretations of an ambiguous term. 19 Souter v. Edgewell Pers. Care Co., No. 22-55898, 2023 WL 5011747, at *3 (9th Cir. Aug. 7, 20 2023).3 The Ninth Circuit accordingly found in Souter that the allegation that the “sole active 21 ingredient” in the hand wipes at issue was a documented allergen was sufficient to show, if 22 proven, that the alleged representation of the product being “hypoallergenic” would mislead a 23 reasonable consumer. Id. at *2. 24 Here, plaintiff has alleged that the Product contains lanolin. (Doc. No. 1 at ¶ 21.) 25 Plaintiff further alleges that lanolin “is recognized as a common allergen among infants and 26 27 3 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 28 36–3(b). 1 children, and a common cause of allergic contact dermatitis among this group.”4 (Id. at ¶ 39.) 2 Plaintiff also alleges that “allergic reactions to lanolin” can occur to patients with 3 “perianal/genital dermatitis” which are “forms of diaper rash” and that the Product, which 4 contains lanolin, “is marketed for use by infants with inflamed or damaged skin associated with 5 diaper rash” because the Product represents that it helps heal “diaper rash.” (Id. at ¶¶ 51, 52, 57, 6 58.) These allegations are plainly sufficient to plausibly show that a reasonable consumer could 7 be misled by the Product’s claim that it is hypoallergenic. Timmins v. Unilever U.S., Inc., 785 F. 8 Supp. 3d 774, 781–82 (E.D. Cal. 2025) (finding that the plaintiff’s allegation that the product at 9 issue contained a common allergen was sufficient to plausibly show that a reasonable consumer 10 was likely to be deceived by the assertion that the product was hypoallergenic); cf. Erickson v. 11 Kimberly-Clark Corp., No. 24-cv-07032-AMO, 2025 WL 2105830, at *3–4 (N.D. Cal. July 28, 12 2025) (finding that the product’s representation as being hypoallergenic could plausibly suggest 13 to a reasonable consumer that the product is free from harmful or toxic ingredients, but 14 concluding that the plaintiffs failed to meet their pleading burden because they did not allege that 15 the Product actually contained toxic levels of any ingredient).5 As noted above, defendant argues 16 that plaintiff’s breach of express warranty claims fail for the same reasons that her CLRA claim

17 4 Defendant also argues that plaintiff has only supported her assertion that lanolin is an allergen with “anecdotes and articles, not peer-reviewed studies[.]” (Doc. No. 7-1 at 10.) Defendant has 18 cited no authority for the proposition that, at the motion to dismiss stage, plaintiff must allege the 19 existence of peer-reviewed studies on the allergenic properties of an ingredient. Regardless, defendant’s argument is not well-taken because plaintiff’s complaint includes citations to several 20 academic papers and empirical tests regarding the allergenic properties of lanolin. (Doc. No. 1 at ¶ 39 n.15.) 21 5 Defendant raises a new argument in its reply brief that plaintiff is required to allege the specific 22 amount of lanolin in the Product in order to state a cognizable claim because she must allege that 23 the specific amount could cause an allergic reaction. (Doc. No. 20 at 8–12.) This court “need not consider arguments raised for the first time in a reply brief.” Zamani v. Carnes, 491 F.3d 990, 24 997 (9th Cir. 2007). Moreover, defendant’s argument in part relies on citations to an external academic paper from the late nineteenth century and an FDA panel report from 1990, neither of 25 which contradict plaintiff’s allegations that lanolin is a known allergen. See L.S. v. Happy Hippo LLC, No. 2:24-cv-02849-DAD-SCR, 2025 WL 1993383, at *8 (E.D. Cal. July 17, 2025) 26 (rejecting the defendant’s argument that the plaintiff’s allegations regarding the addictive nature 27 of a substance were implausible because the defendant’s proffered evidence to the contrary did not contradict those allegations). Accordingly, the court rejects defendant’s argument in this 28 regard. 1 | fails—reasons that the court has already rejected. See Timmins, 785 F. Supp. 3d at 782 (finding 2 | that a “hypoallergenic” representation can constitute an express warranty and that the □□□□□□□□□□□ 3 | allegations sufficiently stated a cognizable claim for breach of express warranty where they 4 | sufficiently stated a claim pursuant to the CLRA) (citing Kellman v. Whole Foods Mkt., Inc., 313 5 | F. Supp. 3d 1031, 1052 (N.D. Cal. 2018)). 6 The court therefore will deny defendant’s motion to dismiss plaintiff's claims for violation 7 | of the CLRA and for breach of express warranty. 8 CONCLUSION 9 For the reasons above, 10 1. Defendant’s motion to dismiss plaintiff's complaint (Doc. No. 7) is DENIED; 11 2. Defendant shall file an answer responding to plaintiff's complaint no later than 12 twenty-one (21) days after the date of entry of this order; and 13 3. The court hereby RESETS the Initial Scheduling Conference in this case for April 14 13, 2026 at 1:30 p.m. before the undersigned via Zoom. The parties are 15 DIRECTED to file a joint status report regarding scheduling no later than March 16 30, 2026. 7 IT IS SO ORDERED. | Dated: _March 5, 2026 Da A. 2, ye 19 DALE A. DROZD 50 UNITED STATES DISTRICT JUDGE

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