1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DOMINIQUE LOPEZ, Case No. 24-cv-03573-HSG
8 Plaintiff, ORDER GRANTING MOTION TO DISMISS AMENDED COMPLAINT 9 v. Re: Dkt. No. 58 10 MEAD JOHNSON NUTRITION COMPANY, et al., 11 Defendants. 12 13 Pending before the Court are Defendants Mead Johnson Nutrition Company and Mead 14 Johnson & Company, LLC’s (collectively “Defendants” or “Mead”) motion to dismiss Plaintiff’s 15 amended complaint. Dkt. No. 58. The Court finds this matter appropriate for disposition without 16 oral argument and the matter is deemed submitted. See Civil L.R. 7-1(b). For the reasons 17 explained below, the Court GRANTS the motion without leave to amend. 18 I. BACKGROUND 19 Plaintiff Dominque Lopez purchased Mead infant formulas between May 2021 and 20 September 2022 from retailers in Contra Costa County, California. Dkt. No. 56 (“Am. Compl.”) 21 ¶¶ 31–32.1 Those products included Enfamil® Nutramigen, Enfamil® ProSobee, and Enfamil® 22 Neuro Pro. Id. ¶ 31. She also asserts claims on behalf of a putative class regarding infant 23 formulas she did not purchase: Enfamil® A.R., Enfamil® Gentlease, Enfamil® Enspire Gentlease, 24 and PurAmino Hypoallergenic (together “Products”). Plaintiff alleges that these formulas’ 25 packaging contains deceptive statements that imply that they are generally nutritious and have “no 26
27 1 The facts detailed in this order are pled in the Amended Complaint, Dkt. No. 56, which the court ] detrimental, harmful, or genetically engineered ingredients.” Jd. J§ 8-9. For example, the 2 || challenged labels state that the formulas are “brain building” or “support[] brain... development,” 3 id. J 44(a)-(h), and are “recommended” or “trusted” by experts and pediatricians, id. § 44(a), (c)}- 4 || (h) (all but Enfamil® Enspire Gentlease). Others contain statements that the formulas promote 5 immune health, id. §] 44(a)-(b), (d)-(e), (g); bone health, id. § 44(a), (h); eye health, id. 44(d), 6 || (h); were inspired by breast milk, id. § 44(b), (d); and do not contain artificial colors, flavors, 7 || sweeteners, or growth hormones. /d. § 44(e)-(g). Plaintiff alleges Mead’s website contains 8 similar representations, id. § 49-51, but does not allege that any of the website statements were 9 || false. Id. 99 44, 55. 10 Plaintiff alleges that her counsel’s independent testing of the Products revealed a presence 1] of arsenic, cadmium, or lead in each of the formulas, id. §] 58-60, and that other infant formulas 12 || may be manufactured without detectable levels of heavy metals.
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== 20 21 || Id. 958.
24 Id. 4.119. She alleges that counsel’s consumer surveys revealed that people would expect a 25 company to test for those substances and disclose whether “detectable levels” were found. /d. 26 4 106. Her counsel’s surveys purported to show that, when asked directly, consumers would 27 understand the formulas’ packaging to imply there were no heavy metals. Jd. § 140-55. 28
1 Plaintiff explains that the packaging contains “material misrepresentations and partial 2 misrepresentations” because Mead failed to disclose the presence of heavy metals in the Products. 3 Id. ¶ 11. Plaintiff claims these statements “deceptively hid material information about the quality 4 and nutritiousness of the Infant Formulas,” id. ¶ 54, and that the specific statements regarding the 5 formulas “contradict the inclusion of the harmful Heavy Metals by promising a safe, healthy, and 6 nutrition infant formula. These partial statements also required Mead to make a full disclosure of 7 the harmful Heavy Metals.” Id. ¶ 44. 8 Plaintiff sued Mead individually and on behalf of similarly situated individuals in state 9 court. The case was removed to federal court, Dkt. No. 1, and the Court granted Mead’s motion to 10 dismiss the first complaint in its entirety. Dkt. No. 55. 11 Plaintiff amended her complaint, alleging six counts under California state law: (1) Unfair 12 Competition Law, (2) False Advertising Law, (3) Consumers Legal Remedies Act, (6) Fraud by 13 Misrepresentation, (7) Negligent Misrepresentation, and (8) Unjust Enrichment. Am. Compl. 14 ¶¶ 182–240.2 Mead moves to dismiss the amended complaint without leave to amend. Dkt. No. 15 58. 16 II. LEGAL STANDARD 17 A. Rule 12(b)(1) 18 Federal Rule of Civil Procedure Rule 12(b)(1) allows a party to move to dismiss for lack of 19 subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). The issue of Article III standing is 20 jurisdictional and is therefore “properly raised in a motion to dismiss under Federal Rule of Civil 21 Procedure 12(b)(1).” White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). To meet her burden of 22 establishing standing, a plaintiff must show she has “(1) suffered an injury in fact, (2) that is fairly 23 traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a 24 favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016), as revised (May 25 24, 2016). And where a plaintiff seeks injunctive relief, she must also demonstrate a “real and 26 immediate threat of repeated injury.” Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 946 27 1 (9th Cir. 2011). 2 If a plaintiff fails to establish standing or any other aspect of subject matter jurisdiction, 3 “the court, on having the defect called to its attention or on discovering the same, must dismiss the 4 case, unless the defect be corrected by amendment.” Tosco Corp. v. Communities for a Better 5 Env’t, 236 F.3d 495, 499 (9th Cir. 2001), abrogated on other grounds by Hertz Corp. v. Friend, 6 559 U.S. 77 (2010). 7 B. Rule 12(b)(6) 8 Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain 9 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 10 defendant may move to dismiss a complaint for failing to state a claim upon which relief can be 11 granted under Rule 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the 12 complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” 13 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 14 12(b)(6) motion, a plaintiff need only plead “enough facts to state a claim to relief that is plausible 15 on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible 16 when a plaintiff pleads “factual content that allows the court to draw the reasonable inference that 17 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 18 In reviewing the plausibility of a complaint, courts “accept factual allegations in the 19 complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” 20 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nevertheless, 21 courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of 22 fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 23 2008) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). 24 Rule 9(b) imposes a heightened pleading standard where fraud is an essential element of a 25 claim. See Fed. R. Civ. P. 9(b) (“In alleging fraud or mistake, a party must state with particularity 26 the circumstances constituting fraud or mistake.”); see also Vess v. Ciba–Geigy Corp. USA, 317 27 F.3d 1097, 1107 (9th Cir. 2003). A plaintiff must identify “the who, what, when, where, and how” 1 the charge. Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997). However, “[m]alice, intent, 2 knowledge, and other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 3 Rule 9(b). 4 Even if the court concludes that a 12(b)(6) motion should be granted, the “court should 5 grant leave to amend even if no request to amend the pleading was made, unless it determines that 6 the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 7 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (quotation omitted). 8 III. DISCUSSION 9 A. Subject Matter Jurisdiction 10 i. Primary Jurisdiction 11 Primary jurisdiction is a doctrine intended to “promot[e] proper relationships between the 12 courts and administrative agencies charged with particular regulatory duties[,]” and “comes into 13 play whenever enforcement of the claim requires the resolution of issues which, under a regulatory 14 scheme, have been placed within the special competence of an administrative body[.]” United 15 States v. W. Pac. R.R. Co., 352 U.S. 59, 63–64 (1956). “Although the question is a matter for the 16 court’s discretion,” courts normally consider four factors outlined in Syntek Semiconductor Co. v. 17 Microchip Tech: “(1) the need to resolve an issue that (2) has been placed by Congress within the 18 jurisdiction of an administrative body having regulatory authority (3) pursuant to a statute that 19 subjects an industry or activity to a comprehensive regulatory authority that (4) requires expertise 20 or uniformity in administration.” 307 F.3d 775, 781 (9th Cir. 2002). 21 Mead suggests that the Food and Drug Administration has primary jurisdiction to 22 determine appropriate levels of heavy metals in infant formulas, so the case should be dismissed. 23 Dkt. No. 58 at 13–14. Plaintiffs argue that the FDA has not completed any regulatory action to 24 control the amount of heavy metals in infant formula, and even if it had, that is separate from their 25 claims that the packaging was misleading. Dkt. No. 61 at 14–16. 26 This argument was presented to the Court on the first motion to dismiss, and the Court 27 rejected it. Dkt. No. 55 at 6–8. Mead has not presented any argument that counsels for a different 1 articulated in the prior order. Id.; see Lockwood v. Conagra Foods, Inc., 597 F. Supp. 2d 1028, 2 1035 (N.D. Cal. 2009) (declining to apply the primary jurisdiction doctrine and explaining “this is 3 not a technical area in which the FDA has greater technical expertise than the courts—every day 4 courts decide whether conduct is misleading”); In re Theos Dark Chocolate Litig., 750 F. Supp. 3d 5 1069, 1085–86 (N.D. Cal. Sept. 27, 2024). 6 ii. Standing 7 a. Products Plaintiff Did Not Purchase 8 Mead contends that Plaintiff lacks Article III standing to sue for products that she did not 9 purchase. In the Ninth Circuit, “[t]here is no controlling authority on whether [p]laintiffs have 10 standing for products they did not purchase.” In re S.C. Johnson & Son, Inc. Windex Non-Toxic 11 Litig., 20-CV-03184-HSG, 2021 WL 3191733, at *2 (N.D. Cal. July 28, 2021) (citing Miller v. 12 Ghirardelli Chocolate Co., 912 F. Supp. 2d 861, 868 (N.D. Cal. 2012)). “The majority of the 13 courts that have carefully analyzed the question hold that a plaintiff may have standing to assert 14 claims for unnamed class members based on products he or she did not purchase so long as the 15 products and alleged misrepresentations are substantially similar.” Miller, 912 F. Supp. 2d at 869; 16 see also Papasan v. Dometic Corp., 2017 WL 4865602, at *8 (N.D. Cal. Oct. 27, 2017); 17 Werdebaugh v. Blue Diamond Growers, No. 12-CV-02724-LHK, 2013 WL 5487236, at *12–13 18 (N.D. Cal. Oct. 2, 2013). If products are sufficiently similar, “any concerns regarding material 19 differences in the products can be addressed at the class certification stage.” Anderson v. Jamba 20 Juice Co., 888 F. Supp. 2d 1000, 1006 (N.D. Cal. 2012). However, “[w]here the alleged 21 misrepresentations or accused products are dissimilar, courts tend to dismiss claims to the extent 22 they are based on products not purchased.” Miller, 912 F. Supp. 2d at 870.3 23 Courts have found substantial similarity for purposes of standing where: (1) the products 24 are physically similar; (2) the differences between the products are immaterial because the legal 25
26 3 Defendants contend that the “substantial similarity” theory of standing is legally flawed, arguing that “[w]hen a plaintiff does not allege she bought a product, she has no injury-in-fact and thus 27 lacks standing to sue about it.” Dkt. No. 65 at 10. But this argument relies on cases from other 1 claim and injury to the customer is the same; and (3) both the products and the legal claims and 2 injury are similar. See Ang v. Bimbo Bakeries USA, Inc., No. 13-CV-01196-WHO, 2014 WL 3 1024182, at *4–8 (N.D. Cal. Mar. 13, 2014); Zimmerman v. L'Oreal USA, Inc., No. 22-CV-07609- 4 HSG, 2023 WL 4564552, at *3 (N.D. Cal. July 17, 2023) (quoting id. at *8). “That determination 5 necessarily focuses on whether the resolution of the asserted claims will be identical between the 6 purchased and unpurchased products.” Zimmerman, No. 22-cv-07609, 2023 WL 4564552, at *3 7 (internal quotation omitted). 8 Plaintiff alleges that she purchased Enfamil® Nutramigen, Enfamil® ProSobee, and 9 Enfamil® Neuro Pro. Am. Compl. ¶ 31. The infant formulas at issue include those three plus 10 Enfamil® A.R., Enfamil® Gentlease, Enfamil® Enspire Gentlease, and PurAmino 11 Hypoallergenic. Id. ¶ 40. She argues that the Products’ packaging contains similar 12 representations about expert representations and beneficial characteristics. See, e.g., id. ¶ 44(a)– 13 (h) (“brain building” or “supports brain… development,”), id. ¶ 44(a), (c)–(h)(“recommended” or 14 “trusted” by experts and pediatricians); Dkt. No. 61 at 17–18. Mead argues that these products are 15 not similar because they vary in composition (milk-based, soy-based or amino-based) and contain 16 different ingredients and formulations. Dkt. No. 58 at 15. 17 The Court finds that the products Plaintiff purchased are substantially similar in the 18 relevant characteristics to the products she did not purchase. The products are all infant formulas, 19 with similar representations on their packaging. Dkt. No. 56 ¶ 44(a)–(h). Mead contends that the 20 products differ because they vary in physical composition, but it never explains why those 21 differences matter with respect to the representations at issue. Dkt. No. 58 at 15. In this district, 22 courts have found that claims may proceed even where products differ to a degree and contain 23 different ingredients, if the misrepresentations are similar and the differences in the products are 24 not material to those representations. See, e.g., Astiana v. Dreyer's Grand Ice Cream, Inc., No. C– 25 11–2910 EMC, 2012 WL 2990766, at *11 (N.D. Cal. July 20, 2012); Clancy v. Bromley Tea Co., 26 308 F.R.D. 564, 571 (N.D. Cal. 2013) (denying dismissal of class claims because “analyzing the 27 ‘sufficient similarity’ of the products is not a standing inquiry, but rather an early analysis of the 1 motion to dismiss on this basis. 2 b. Equitable Jurisdiction 3 Defendants argue that Plaintiff’s UCL, CLRA, FAL, and unjust enrichment claims seeking 4 restitution and disgorgement should be dismissed because they are equitable remedies and 5 Plaintiff has not established that she lacks an adequate remedy at law. Dkt. No. 58 at 16–17. 6 Defendants rely on the Ninth Circuit’s ruling in Sonner v. Premier Nutrition Corp, which held that 7 “federal courts must apply equitable principles derived from federal common law to claims for 8 equitable restitution under” the UCL and CLRA. 971 F.3d 834, 837 (9th Cir. 2020). One 9 established equitable principle is that equitable remedies will not be awarded when there is an 10 “adequate remedy at law.” Id. at 842. Sonner’s “adequate remedy at law” requirement also applies 11 to claims under the FAL, see Robie v. Trader Joe’s Co., No. 20-cv-7355-JSW, 2021 WL 2548960, 12 at *6 (N.D. Cal. June 14, 2021), and to claims for injunctive relief, see In re MacBook Keyboard 13 Litig., No. 5:18-CV-02813-EJD, 2020 WL 6047253, at *3 (N.D. Cal. Oct. 13, 2020). “[T]he 14 fundamental thing that Sonner, by its own terms, requires at the pleadings stage is that the 15 complaint ‘allege that [the plaintiff] lacks an adequate legal remedy.’” Johnson v. Trumpet Behav. 16 Health, LLC, No. 3:21-CV-03221-WHO, 2022 WL 74163, at *3 (N.D. Cal. Jan. 7, 2022) 17 (quoting Sonner, 971 F.3d at 844). 18 Plaintiff’s claim for monetary relief is based on the allegation that she would not have paid 19 a premium price for the products had she known that the formulas contained detectable amounts of 20 heavy metals. Am. Compl. ¶ 25–27. Her claimed damages are the difference between what she 21 paid and what she otherwise would have paid. Id. ¶¶ 153–57. Mead argues that Plaintiff has not 22 pled inadequate legal remedies in seeking restitution and disgorgement, but does not challenge 23 Plaintiff’s requests for injunctive relief. Dkt. No. 58 at 16–17 & n.4. Missing the thrust of Mead’s 24 argument, Plaintiff then defended her requests for injunctive relief without explaining why her 25 other equitable remedies are necessary. Dkt. No. 61 at 18. The Court finds that Plaintiff fails to 26 plead that damages would insufficiently compensate her for the alleged overpayment, and thus 27 GRANTS Mead’s motion to dismiss Plaintiff’s claims for restitution and disgorgement. 1 2 B. Failure to State a Claim 3 i. “Fraudulent” UCL Claim, FAL, and CLRA 4 Plaintiff accuses Mead of violating (1) the fraudulent, unlawful, and unfair prongs of the 5 UCL, Am. Compl. ¶¶ 182–96; (2) the False Advertising Law, id. ¶¶ 197–205; and (3) the CLRA, 6 id. ¶¶ 206–16. 7 The UCL makes actionable any “unlawful, unfair or fraudulent business act or practice.” 8 Cal. Bus. & Prof. Code § 17200. Similarly, the CLRA prohibits “unfair methods of competition 9 and unfair or deceptive acts or practices,” Cal. Civ. Code § 1770, and the FAL “prohibits creation 10 or dissemination of any statement concerning property or services that is ‘untrue or misleading.’” 11 In re Theos Dark Chocolate Litig., 750 F. Supp. 3d at 1087 (quoting Cal. Bus. & Prof. Code 12 § 17500). To state a claim under these consumer protection provisions, a plaintiff must allege that 13 the claimed representations or material omissions are likely to deceive a “reasonable consumer.” 14 Freeman v. Time, 68 F.3d 285, 289 (9th Cir. 1995). This deception requires more than the “mere 15 possibility” that a defendant’s labels “might conceivably be misunderstood by some few 16 consumers viewing [the labels] in an unreasonable manner,” Becerra v. Dr Pepper/Seven Up, Inc., 17 945 F.3d 1225, 1228 (9th Cir. 2019) (citation and quotations omitted). Rather, it must be probable 18 “that a significant portion of the general consuming public or of targeted consumers, acting 19 reasonably in the circumstances, could be misled.” Id. at 1228–29 (citation and quotations 20 omitted). California courts have defined a “reasonable consumer” as an ordinary member of the 21 consuming public who acts reasonably under all circumstances. See Lavie v. Procter & Gamble 22 Co., 105 Cal. App. 4th 496, 506–07 (2003). 23 The challenged statements claim that experts and pediatricians “recommend” the products 24 and that the formulas contain substances that provide identified benefits, such as “brain building 25 DHA,” “more than 2x DHA of Elecare to support brain & eye development,” “calcium for strong 26 bones,” “vitamin C for immune support,” “vitamins A, C & E for immune support,” and were 27 made “with lactoferrin.” Am. Compl. ¶ 44(a)–(h). Plaintiff does not allege that any of these 1 statements were false. 2 Instead, her theory is that “each challenged statement speaks directly to the quality and 3 nutritional benefits of the Products” without mentioning the potential presence of heavy metals. 4 Dkt. No. 61 at 23. In Plaintiff’s telling, “[t]he crux of liability here is that Defendants fail to 5 disclose the presence of heavy metals while promoting the Products’ high quality and 6 nutritiousness through the Claims.” Id. She alleges that the statements “contradict the inclusion 7 of the harmful Heavy Metals by promising a safe, health, and nutritious infant formula” and 8 “required Mead to make full disclosures of the presence of heavy metals.” Am. Compl. ¶ 44 9 The Court finds this argument is based on implausible assertions about what a reasonable 10 consumer would understand the challenged representation to say about the Products. First, from 11 those statements, Plaintiff argues that a reasonable consumer would infer “quality and 12 nutritiousness.” Dkt. No. 61 at 24. Then, from that implicit representation about the formula’s 13 general quality, the reasonable consumer would also understand that there are no detectable levels 14 of heavy metals.4 Id. But while making some extrapolations from advertisements could be 15 plausible in some circumstances, this is not one of them. There is nothing that logically connects 16 an expert’s recommendation or the presence of certain substances in an infant formula with the 17 absence of some other substance. 18 Courts have consistently rejected this type of “inferential leap” in food labeling cases. See, 19 e.g., Davidson v. Sprout Foods Inc., No. 22-CV-01050-RS, 2022 WL 13801090 at *3 (N.D. Cal. 20 Oct. 21, 2022) (“The California Court of Appeal has cautioned against permitting food labeling 21 claims that rely on inferential leaps and which could ultimately ‘place almost any advertisement 22 truthfully touting a product's attributes at issue for litigation.’”) (internal citations omitted). See 23 also Hayden v. Bob’s Red Mill Natural Foods, Inc., No. 23-cv-3862-HSG, 2024 WL 1643696, at 24 *9 (N.D. Cal. Apr. 16, 2024) (“Where Plaintiff has not alleged that the statements misstate the 25 truth of the relevant product characteristic (i.e. the gluten content or organic composition), as 26
27 4 Plaintiff alleges that no amount of heavy metals is healthy for human consumption, Am. Compl. 1 opposed to the unstated, extrapolated characteristic (i.e. ‘healthiness’), they do not support his 2 theories.”); Broussard v. Dole Packaged Foods, LLC, No. 23-cv-3320-HSG, at *13 (N.D. Cal. 3 Apr. 8, 2024). “[A]llegations of deception must be assessed according to what the advertisement 4 or label depicts and actually says, and not allegations of implied meaning.” Andrade-Heymsfield 5 v. Danone US, Inc., No. 19-cv-569-CAB-WNG, 2019 WL 3817948, at *9 (S.D. Cal. Aug. 14, 6 2019). 7 Here, Plaintiff fails to plausibly explain why a reasonable consumer would understand the 8 challenged statements to make promises about the absence of heavy metals, when none of the 9 statements concern those substances. In an effort to do so, Plaintiff alleges that counsel conducted 10 a survey in which over 91 percent of a subset of parents answered “yes” to the questions “Do you 11 expect a company to test for arsenic, cadmium, lead, and/or mercury in infant formula that will be 12 fed to infants?” and “Would you expect a company to disclose if there were detectible levels, or 13 risk, of arsenic, cadmium, lead, and/or mercury in an infant formula?” Am. Compl. ¶ 106. 14 Plaintiff also alleges that 77 percent of consumers would not “expect arsenic, cadmium, lead, 15 and/or mercury in the infant formula” after seeing the label. Id. ¶ 141. But these generalized 16 questions to an undisclosed number of people, detached from any legal standard fail to support the 17 plausibility of Plaintiff’s reasonable consumer allegation. See Becerra, 945 F.3d at 1230 (survey 18 did “not shift the prevailing reasonable understanding of what reasonable consumers understand 19 the word ‘diet’ to mean or make plausible the allegation that reasonable consumers are misled by 20 the term ‘diet’); Clark v. Westbrae Natural, Inc., No. 20-cv-3221-JSC, 2020 WL 7043879, at *3–4 21 (N.D. Cal. Dec. 1, 2020) (“Plaintiff’s barebones allegation regarding the results of a 2020 survey 22 which allegedly showed that 69.5% of 400 consumers believed that the ‘Vanilla’ representation on 23 the Product meant that the Product’s flavor comes exclusively fron the vanilla bean . . . [did] not 24 make plausible that reasonable consumers understand that ‘vanilla” soymilk is flavored 25 exclusively with vanilla bean.”). 26 Similarly, Plaintiff’s “partial misrepresentation” claims fail.5 To succeed on this claim, 27 1 Plaintiff must plead that Mead has a “duty to disclose” because the suppressed facts are “contrary 2 to a representation actually made by the defendant,” Hodsdon v. Mars, Inc., 891 F.3d 857, 865 3 (9th Cir. 2018); Anderson v. Apple, Inc. 500 F. Supp. 3d 993, 1013 (N.D. Cal. 2020). Her claim 4 for partial misrepresentation only succeeds if the challenged statements read together represent 5 that the Products do not contain any detectable levels of heavy metals, and that this representation 6 would be contradicted by a disclosure of the presence of the alleged amount of heavy metals. It is 7 not enough for the disclosure to only provide more information about the product. Anderson, 500 8 F. Supp. 3d at 1013–14. 9 The Court finds that Mead’s representations are not contradicted by the alleged presence of 10 heavy metals. Bob’s Red Mill, No. 23-cv-3862-HSG, 2024 WL 1643696, at *9. The presence of 11 DHA and other nutrients, or the benefits of those ingredients, do not become less true because the 12 Products contain some detectable amount of heavy metals. Dkt. No. 58 at 19; Dkt. No. 61 at 23– 13 24. The same is true regarding the experts’ recommendation of the Products. Id. The alleged 14 presence of heavy metals is additional information that is not actionable as a partial 15 misrepresentation. See Anderson, 500 F. Supp. 3d at 1013–14 (finding true statements that do not 16 contradict, but provide additional information, are not actionable partial misrepresentations).6 17 The Court thus GRANTS Mead’s motion to dismiss the FAL, and CLRA, fraudulent UCL 18 claims. 19 ii. “Unlawful” UCL Claim 20 Defendants argue that Plaintiff’s unlawful UCL claim fails because the preceding claims 21 fail. Dkt. No. 58 at 24. “The unlawful prong requires showing the defendants violated another 22 borrowed law, and virtually any state, federal, or local law can serve as the predicate for an action 23 under section 17200.” Gagetta v. Walmart, Inc., 646 F. Supp. 3d 1164, 1177 (N.D. Cal. 2022) 24 (quotations and citation omitted). Plaintiff has failed to plausibly plead a FAL or CLRA violation. 25
26 Dkt. No. 55 at 12–16, and evaluates Lopez’s new claims on their own merits. See Dkt. No. 61 at 23. 27 6 In granting the first motion to dismiss, the Court found that Plaintiff failed to adequately allege 1 Accordingly, Plaintiff’s UCL claim arising under the unlawful prong is DISMISSED. 2 iii. “Unfair” UCL Claim 3 Defendants also argue that Plaintiff’s unfair UCL claim fails because the claim “overlap[s] 4 entirely” with Plaintiff’s UCL claims under the fraudulent and unlawful prongs. Courts in this 5 District have reiterated that when a plaintiff’s claim “under the unfair prong overlaps entirely with 6 the conduct alleged in the fraudulent and unlawful prongs of the UCL, ‘the unfair prong of the 7 UCL cannot survive if the claims under the other two prongs … do not survive.’” Eidmann v. 8 Walgreen Co., 522 F. Supp. 3d 634, 647 (N.D. Cal. 2021) (quoting Hadley v. Kellogg Sales Co., 9 243 F. Supp. 3d 1074, 1105 (N.D. Cal. 2017). The Court has already determined that Plaintiff has 10 not plausibly pled a UCL claim under the fraudulent or unlawful prongs. Accordingly, Plaintiff’s 11 UCL claim under the unfair prong is DISMISSED. 12 iv. Fraudulent Misrepresentation 13 To successfully plead fraudulent misrepresentation, a plaintiff must plead, among other 14 elements, “(1) the defendant represented to the plaintiff that an important fact was true; (2) that 15 representation was false….” Graham v. Bank of Am., N.A., 226 Cal. App. 4th 594, 605–06 (2014) 16 (quoting Perlas v. GMAC Mortg., LLC, 187 Cal.App.4th 429, 434 (2010). Plaintiff never 17 identifies a false representation or a representation that Mead knew was false. Rather, she 18 acknowledges that “[t]he crux of liability here is that Defendants fail to disclose the presence of 19 heavy metals while promoting the Product’s high quality and nutritiousness through the Claims.” 20 Dkt. No. 61 at 23. But that is essentially the omission theory the Court already rejected. Dkt. No. 21 55 at 11–16. On that basis, the Court DISMISSES the fraudulent misrepresentation count. 22 v. Negligent Misrepresentation 23 “To state a claim for negligent misrepresentation under California law, a plaintiff must 24 allege: (1) the misrepresentation of a past or existing material fact; (2) without reasonable ground 25 for believing it to be true; (3) with intent to induce another's reliance on the fact misrepresented; 26 (4) justifiable reliance on the misrepresentation; and (5) resulting damage.” Crystal Springs 27 1 Upland Sch. v. Fieldturf USA, Inc., 219 F. Supp. 3d 962, 969 (N.D. Cal. 2016).7 “Justifiable 2 reliance” is determined using the “reasonable consumer” standard. See Ham v. Hain Celestial 3 Grp., Inc., 70 F. Supp. 3d 1188, 1193 (N.D. Cal. 2014); Girard v. Toyota Motor Sales, U.S.A., 4 Inc., 316 Fed. Appx. 561, 562 (9th Cir. 2008). 5 The Court applied the reasonable consumer standard in dismissing Plaintiff’s UCL, FAL, 6 and CLRA claims. See supra § III-B-i. For those reasons, the Court GRANTS Mead’s motion to 7 dismiss the negligent misrepresentation count. 8 vi. Unjust Enrichment 9 Because Plaintiff has failed to plausibly plead an actionable misrepresentation or omission, 10 the unjust enrichment claim must also be dismissed. See In re Apple Processor Litig., No. 18-CV- 11 00147-EJD, 2022 WL 2064975, at *12 (N.D. Cal. June 8, 2022), aff’d, No. 22-16164, 2023 WL 12 5950622 (9th Cir. Sept. 13, 2023) (“[A] restitution claim based on fraud or consumer protection 13 claims must nonetheless be dismissed if the plaintiff fails to sufficiently plead an actionable 14 misrepresentation or omission.”); Smith v. Intel Corp., 745 F. Supp. 3d 853, 865 (N.D. Cal. 2024) 15 (“Here . . . [p]laintiffs’ unjust enrichment claim relies on the same set of allegations as [p]laintiffs’ 16 fraud claims addressed above, namely that [defendant] fraudulently omitted information . . . such 17 that their unjust enrichment claim relying on the same alleged fraudulent conduct must also be 18 dismissed.”) (quotations and citation omitted). Accordingly, Plaintiff’s unjust enrichment claim is 19 DISMISSED. 20 IV. CONCLUSION 21 The Court GRANTS the motion to dismiss. Dkt. No. 58. Plaintiff previously had an 22 opportunity to amend and has failed to cure the legal deficiencies the Court previously identified 23
24 7 Defendant quotes Becerra v. Dr Pepper/Seven Up, Inc., 945 F.3d 1225, 1228 (9th Cir. 2019) for the premise that “‘[c]ommon law claims for fraudulent and negligent misrepresentation are 25 analyzed’ under the same ‘reasonable consumer’ framework.” Dkt. No. 58 at 24. But this partial quotation does not appear in that opinion and that case did not involve these causes of action. 26 Becerra, 945 F.3d at 1228. The Court ORDERS Defense counsel TO SHOW CAUSE why it should not be sanctioned for this inaccurate quotation. See Oneto v. Watson, 808 F. Supp. 3d 974, 27 980 (N.D. Cal. Oct. 10, 2025) (“Courts across the country have issued sanctions against attorneys ] (and to the extent the Amended Complaint advances new theories, they are not viable for the 2 || reasons explained in this order). The Court therefore DISMISSES the case against Defendants 3 || without leave to amend. See Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th 4 |} Cir. 2009) (“[W]here the Plaintiff has previously been granted leave to amend and has 5 subsequently failed to add the requisite particularity to its claims, [t]he district court's discretion to 6 || deny leave to amend is particularly broad.” (quotation omitted)). The Clerk is DIRECTED to 7 || enter judgment in favor of Defendants and against Plaintiff and to close the case. 8 The Court DIRECTS Defense counsel TO SHOW CAUSE why it should not be 9 sanctioned for including a non-existent quotation from Becerra v. Dr Pepper/Seven Up, Inc. 945 10 || F.3d 1225, 1228 (9th Cir. 2019). Defense counsel shall file a statement of two pages or less by 11 March 27, 2026. %L IT IS SO ORDERED. 13 Dated: 3/20/2026
3 15 HAY we DS. GILLIAM, JR. nited States District Judge 16
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