Maisel v. S.C. Johnson & Son, Inc.

• Court: District Court, N.D. California
• Decided: May 5, 2021
• Docket: 3:21-cv-00413
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ELIZABETH MAISEL, Case No. 21-cv-00413-TSH

8 Plaintiff, ORDER DENYING MOTION TO 9 v. DISMISS

10 S.C. JOHNSON & SON, INC., Re: Dkt. No. 13 11 Defendant.

12 13 I. INTRODUCTION 14 Plaintiff Elizabeth Maisel brings this putative class action against Defendant S.C. Johnson 15 & Son, Inc., alleging it mislabels certain of its Ecover brand cleaning products. SC Johnson 16 moves to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), 12(b)(6), and 17 9(b). ECF No. 19. Maisel filed an Opposition (ECF No. 25) and SC Johnson filed a Reply (ECF 18 No. 26). The Court finds this matter suitable for disposition without oral argument and 19 VACATES the May 27, 2021 hearing. See Civ. L.R. 7-1(b). Having considered the parties’ 20 positions, relevant legal authority, and the record in this case, the Court DENIES SC Johnson’s 21 motion for the following reasons. 22 II. BACKGROUND 23 SC Johnson is a Wisconsin corporation with its principal place of business in Racine, 24 Wisconsin. First Am. Compl. ¶ 10, ECF No. 16. It sells 14 cleaning products under the Ecover 25 brand name. Id. ¶¶ 4, 15. The products include: Ecover All Purpose Cleaner, Ecover Cream 26 Scrub, Ecover Delicate Wash, Ecover Dishwasher Powder, Ecover Dishwasher Tablets, Ecover 27 Dishwasher Tablets Zero, Ecover Fabric Softener (Morning Fresh), Ecover Fabric Softener 1 Detergent (Lavender Field), Ecover Rinse Aid, Ecover Stain Remover, and Ecover Toilet Cleaner 2 (collectively the “Products”). Id. ¶ 4. 3 Maisel is a resident of Berkeley, California, who purchased the Ecover Dishwasher Tablets 4 in early 2020. Id. ¶ 8. She alleges that SC Johnson falsely and misleadingly labels certain of its 5 Ecover products with the following claims: “Plant-based ingredients”; “With plant-based 6 ingredients”; “Plant-based & mineral ingredients”; or “With plant-based and mineral ingredients.” 7 Id. ¶ 1. She further alleges SC Johnson “reinforces the plant-based representations on each 8 product with the following additional label statements: “Get nature on your side”; “Made using 9 renewable plant-based ingredients”’ “Made using renewable plant-based ingredients” or “Made 10 using renewable plant-based & mineral ingredients”’ “At Ecover, we have been pioneering green 11 science for over 30 years to make effective, plant-based cleaners by planet-loving people”; an 12 image of a flower above the “e” and “c” in the ecover brand name; and anmage of a leaf above the 13 plant-based representations with a dotted line connecting the representation and leaf. Id. ¶¶ 1, 17; 14 see also id. ¶¶ 18-31 (images depicting the products). Despite these representations, Maisel 15 alleges “the Products are chock full of synthetic, non-natural, and highly processed ingredients” 16 that do not come from plants and/or minerals, “as well as ingredients that were subjected to 17 chemical modification or processing, which materially altered the ingredients’ original plant-based 18 or mineral composition.” Id. ¶ 32; see also id. ¶¶ 33-47 (listing of ingredients in each Product). 19 Based on SC Johnson’s representations, Maisel alleges that reasonable consumers such as 20 herself “believe the Products only contain ingredients that come from plants and/or from plants 21 and minerals, and that are not subject to chemical modification or processing, which materially 22 alters the ingredients’ original plant-based or mineral composition.” Id. ¶ 2. However, the 23 products “contain numerous ingredients that do not come from plants or minerals whatsoever,” 24 and “have been subjected to chemical modification or processing, which materially altered the 25 ingredients’ original plant-based or mineral composition.” Id. ¶ 3 (emphasis in original). Maisel 26 alleges these representations are misleading and deceptive, and therefore unlawful, and that she 27 would not have purchased the dishwasher tablets had she known the products contained 1 Maisel filed this case on January 15, 2021, seeking to bring a class action under Federal 2 Rule of Civil Procedure 23 on behalf of herself and other consumers who bought Ecover products. 3 After SC Johnson moved to dismiss her original complaint, Maisel filed the operative First 4 Amended Complaint. She defines members of a Nationwide class as: “All residents of the United 5 States who, within the applicable statute of limitations periods, purchased the Products”; and a 6 California subclass as: “All residents of California who, within four years prior to the filing of this 7 Complaint, purchased the Products.” She brings five causes of action: (1) violations of 8 California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq., on behalf 9 of the California subclass; (2) violations of California’s False Advertising Law (“FAL”), Cal. Bus. 10 & Prof. Code § 17500 et seq., on behalf of the California subclass, (3) violation of California’s 11 Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code §§ 1750 et seq., on behalf of the 12 California subclass; (4) breach of express warranty on behalf of the Nationwide and California 13 subclasses, and (5) unjust enrichment on behalf of the Nationwide and California subclasses. Id. 14 ¶¶ 66-146. 15 SC Johnson filed the present motion on April 7, 2021. It raises seven arguments: (1) 16 Maisel does not identify any false claims on the Ecover product labels because they contain plant- 17 based and/or mineral ingredients, as advertised; (2) her personal interpretation of “plant-based 18 ingredients” and “plant-based and mineral ingredients” does not reflect a reasonable consumer’s 19 understanding of the terms because the product labels do not claim the products contain a specific 20 amount of plant-based or mineral ingredients; (3) Maisel cannot challenge the labels on 13 Ecover 21 products she did not purchase because she did not suffer any injury by them; (4) her express 22 warranty claim fails because the product labels are true, and her interpretation of “plant-based 23 ingredients” and “plant-based and mineral ingredients” cannot form the basis of an express 24 warranty; (5) her unjust enrichment claim fails because she received the benefit of the bargain – a 25 product that contains plant-based and mineral ingredients – and it duplicates her other claims; (6) 26 because Maisel asserts claims for damages, she does not lack an adequate remedy at law, and her 27 UCL, FAL, CLRA, and unjust enrichment claims fail; and (7) her national class claims should be 1 she purports to represent. Mot. at 9-10. 2 III. JUDICIAL NOTICE 3 SC Johnson requests the Court take judicial notice of labels for Ecover Fabric Softener 4 Morning Fresh, Ecover Fabric Softener Sunny Day, Ecover Stain Remover, Ecover Toilet 5 Cleaner, and Ecover Laundry Detergent Lavender Field. ECF No. 20. The Court may take 6 judicial notice of matters that are either “generally known within the trial court’s territorial 7 jurisdiction” or “can be accurately and readily determined from sources whose accuracy cannot 8 reasonably be questioned.” Fed. R. Evid. 201(b). “‘Courts addressing motions to dismiss 9 product-labeling claims routinely take judicial notice of images of the product packaging.’” 10 Hadley v. Kellogg Sales Co., 243 F. Supp. 3d 1074, 1086-87 (N.D. Cal. 2017) (quoting Kanfer v. 11 Pharmacare US, Inc., 142 F. Supp. 3d 1091, 1098-99 (S.D. Cal. 2015)); Allen v. ConAgra Foods, 12 Inc., 2013 WL 4737421, at *2 (N.D. Cal. Sept. 3, 2013); Anderson v. Jamba Juice Co., 888 F. 13 Supp. 2d 1000, 1003 (N.D. Cal. 2012). The Court notes that the FAC also contains images of the 14 packaging in question, and Maisel does not contest the authenticity of the pictures of the Ecover 15 labels. Accordingly, the Court takes judicial notice of these materials. 16 IV. STANDING 17 SC Johnson argues Maisel lacks standing to pursue her claims because she challenges 18 products she never purchased and alleges too speculative an injury to seek injunctive relief. Mot. 19 at 17. Because questions of Article III standing go to a federal court’s subject-matter jurisdiction, 20 an argument that a party lacks standing is “properly raised in a motion to dismiss under Federal 21 Rule of Civil Procedure 12(b)(1).” White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000); see also 22 Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004) (where plaintiffs lack standing, a 23 suit should be dismissed under Rule 12(b)(1)). 24 Federal district courts are courts of limited jurisdiction; “[t]hey possess only that power 25 authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen 26 v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citation omitted). Accordingly, “[i]t 27 is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing 1 Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). 2 A motion to dismiss under Rule 12(b)(1) may be facial or factual. Safe Air for Everyone v. 3 Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Where, as here, a defendant makes a facial attack on 4 jurisdiction, factual allegations of the complaint are taken as true. Fed’n of Afr. Am. Contractors 5 v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996); see also Lujan v. Defs. of Wildlife, 504 6 U.S. 555, 561 (1992) (“At the pleading stage, general factual allegations of injury resulting from 7 the defendant’s conduct may suffice, for on a motion dismiss, [courts] presume that general 8 allegations embrace those specific facts that are necessary to support the claim.”) (internal citation 9 and quotations omitted). The plaintiff is then entitled to have those facts construed in the light 10 most favorable to her. Federation of Afr. Am. Contractors, 96 F.3d at 1207. 11 1. Article III Standing 12 Article III standing requires that the plaintiff “(1) suffered an injury in fact, (2) that is fairly 13 traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a 14 favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), as revised 15 (May 24, 2016). In a class action, standing is satisfied if at least one named plaintiff meets the 16 requirements. Armstrong v. Davis, 275 F.3d 849, 860 (9th Cir. 2001). “The party invoking 17 federal jurisdiction bears the burden of establishing these elements.” Lujan, 504 U.S. at 561. 18 A “quintessential injury-in-fact” occurs when the “plaintiffs spent money that, absent 19 defendants’ actions, they would not have spent.” Maya v. Centex Corp., 658 F.3d 1060, 1069 (9th 20 Cir. 2011). Additionally, if plaintiffs “state that they would not have purchased [a product] had 21 there been proper disclosure” of relevant facts, that is sufficient to plead causation. Id. at 1070; 22 see also Zeiger v. WellPet LLC, 304 F. Supp. 3d 837, 846 (N.D. Cal. 2018) (holding that plaintiffs 23 alleged a cognizable injury for purposes of standing because their claims were “premised on their 24 allegation that were it not for defendants’ labeling, which omit the presence of lead, arsenic, and 25 BPA in their [contaminated dog food products], plaintiffs would not have purchased and spent 26 money on their Products.”). Thus, because Maisel alleges she purchased the Ecover dishwasher 27 tablets and would not have if she knew they were mislabeled, the Court finds she has Article III 1 2. Statutory Standing 2 Because Maisel alleges causes of action under the FAL, the CLRA, and the UCL, she must 3 also demonstrate standing under those statutes. Punian v. Gillette Co., 2015 WL 4967535, at *7 4 (N.D. Cal. Aug. 20, 2015) (citing Bruton v. Gerber Prod. Co., 961 F. Supp. 2d 1062, 1086 (N.D. 5 Cal. 2013)). To have standing under the FAL and the CLRA, a plaintiff must claim to have relied 6 on an alleged misrepresentation. See Kwikset Corp. v. Superior Ct., 51 Cal. 4th 310, 22 (2011) 7 (plaintiff alleging a claim under the FAL must allege, inter alia, “that that economic injury was the 8 result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of 9 the claim”) (emphasis in original); Durell v. Sharp Healthcare, 183 Cal. App. 4th 1350, 1367 10 (2010) (finding plaintiff’s CLRA claim failed because plaintiff failed to allege facts showing that 11 he relied on any representation by defendant). Under the FAL, a plaintiff must “establish a loss or 12 deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury.” 13 Kwikset Corp., 51 Cal. 4th at 322 (emphasis in original). Likewise, for the purpose of bringing a 14 CLRA cause of action, “[a] plaintiff . . . must not only be exposed to an unlawful practice but also 15 have suffered some kind of damage.” Bower v. AT & T Mobility, LLC, 196 Cal. App. 4th 1545, 16 1556 (2011); Bohac v. Gen. Mills, Inc., 2014 WL 1266848, at *10 (N.D. Cal. Mar. 26, 2014) 17 (“Actual reliance and economic injury are also required to have standing to sue under the CLRA.”) 18 (citing Bruton, 961 F. Supp. 2d at 1083). 19 Under the UCL, a private person has standing only if she “has suffered injury in fact and 20 has lost money or property as a result of the unfair competition.” Cal. Bus. & Prof. Code § 17204 21 (emphasis added). The “as a result” language means that actual reliance is necessary for standing. 22 See Kwikset Corp., 51 Cal. 4th at 326–27; In re Tobacco II Cases, 46 Cal. 4th 298, 306 (2009) 23 (stating that a plaintiff “proceeding on a claim of misrepresentation as the basis of his or her UCL 24 action must demonstrate actual reliance on the allegedly deceptive or misleading statements”). 25 “A plaintiff has suffered economic injury when she has either: (1) expended money due to 26 the defendants’ acts of unfair competition; (2) lost money or property; or (3) been denied money to 27 which he or she has a cognizable claim.” Samet v. Procter & Gamble Co., 2013 WL 3124647, at 1 Judges in this district have routinely held that allegations that mislabeling caused the 2 plaintiff to purchase products they might not have otherwise purchased suffices for statutory 3 standing. Bohac, 2014 WL 1266848, at *11; Bruton v. Gerber Prod. Co., 2014 WL 172111, at *9 4 (N.D. Cal. Jan. 15, 2014); Brazil v. Dole Food Co., 935 F. Supp. 2d 947, 961 (N.D. Cal. 2013) 5 (“Essentially, Brazil alleges that he and class members ‘spent money that, absent defendants’ 6 actions, they would not have spent,’ which constitutes ‘a quintessential injury-in-fact.’”) (quoting 7 Maya, 658 F.3d at 1069). Maisel alleges she spent money purchasing a product she would not 8 have purchased were it not for SC Johnson’s purported mislabeling. She claims she read SC 9 Johnson’s misstatements on its product labels and relied on them in making her purchase. That is 10 sufficient for statutory standing under the CLRA, UCL, and FAL. Bohac, 2014 WL 1266848, at 11 *11; Carrea v. Dreyer’s Grand Ice Cream, Inc., 2011 WL 159380, at *2 (N.D. Cal. Jan. 10, 12 2011), aff’d, 475 F. App’x 113 (9th Cir. 2012). Accordingly, Maisel has statutory standing. 13 3. Substantially Similar Products 14 SC Johnson argues Maisel cannot challenge the product labels on the products she did not 15 purchase. Mot. at 17-18. In the Ninth Circuit, “[t]here is no controlling authority on whether 16 Plaintiffs have standing for products they did not purchase.” Miller v. Ghirardelli Chocolate Co., 17 912 F. Supp. 2d 861, 868 (N.D. Cal. 2012). However, “[t]he majority of the courts that have 18 carefully analyzed the question hold that a plaintiff may have standing to assert claims for 19 unnamed class members based on products he or she did not purchase so long as the products and 20 alleged misrepresentations are substantially similar.” Id. at 869; see also Figy v. Frito-Lay N. Am., 21 Inc., 67 F. Supp. 3d 1075, 1082-83 (N.D. Cal. 2014) (“Courts in this district have adopted three 22 diverging approaches for analyzing standing to pursue claims for nonpurchased products.”). In 23 determining whether products are substantially similar, “[c]ourts look to a series of factors 24 including whether the challenged products are of the same kind, comprised of largely the same 25 ingredients, and whether each of the challenged products bears the same alleged mislabeling.” 26 Figy, 67 F. Supp. 3d at 1083. If the products are sufficiently similar, “any concerns regarding 27 material differences in the products can be addressed at the class certification stage.” Anderson, 1 Courts have previously found that diverse products bearing similar labels may be 2 considered “substantially similar.” See, e.g., Bush v. Rust-Oleum Corp., 2021 WL 24842, at *1, 6 3 (N.D. Cal. Jan. 4, 2021) (where plaintiff purchased two Rust-Oleum products – a cleaner and a 4 degreaser – court held he had standing to contest an additional 13 Rust-Oleum products that he did 5 not purchase because the front-label representations about their “non-toxic” and “earth friendly” 6 properties were substantially similarly); Baum v. J-B Weld Co., LLC, 2019 WL 6841231, at *5 7 (N.D. Cal. Dec. 16, 2019) (finding plaintiff could establish substantial similarity among 24 8 products—epoxies, syringe epoxies, silicone sealants, gasket makers, and threadlockers—based on 9 similarity in packaging and/or mislabeling); Morales v. Unilever U.S., Inc., 2014 WL 1389613, at 10 *4 (E.D. Cal. Apr. 9, 2014) (the court—dealing with allegations pertaining to six shampoos and 11 conditioners—found that the one unpurchased product was substantially similar to the purchased 12 products because “the packaging of the [unpurchased product] is strikingly similar to the five 13 products that plaintiffs purchased . . . .”); Astiana v. Dreyer’s Grand Ice Cream, Inc., 2012 WL 14 2990766, at *13 (N.D. Cal. July 20, 2012) (the fact that “the different ice creams may ultimately 15 have different ingredients is not dispositive as Plaintiffs are challenging the same basic 16 mislabeling practice across different product flavors.”); Koh v. S.C. Johnson & Son, Inc., 2010 17 WL 94265, at *1, 3 (N.D. Cal. Jan. 6, 2010) (where the plaintiff brought claims related to 18 misleading labeling practices on “Windex, a multi-purpose cleaner designed for cleaning glass . . . 19 and Shout, a stain remover,” the court deferred a finding about substantial similarity until the class 20 certification stage, noting “there is no brightline rule that different product lines cannot be covered 21 by a single class.”). Thus, “diverse products that bear similar or uniform labels may be considered 22 ‘substantially similar.’ The critical issue is whether the products are substantially similar with 23 respect to the alleged mislabeling.” Baum, 2019 WL 6841231, at *5. 24 As in these cases, the Court finds that the similarity in packaging or labeling in the 25 products here can establish substantial similarity even among diverse products. Maisel alleges 26 that all 14 products are substantially similar in the following ways:

27 a. Defendant. All Products are manufactured, sold, marketed, b. Brand. All Products are sold under the ecover brand name. 1 c. Marketing Demographics. All Products are marketed 2 directly to consumers for personal use.

3 d. Purpose. All Products are cleaning products.

4 e. False Advertising Claims. All Products contain one of the Plant-Based Representations on the Products’ labeling and 5 packaging. In addition, all Products prominently display the Plant-Based Representations on the front label in order 6 tofocus the consumer’s attention on the Plant-Based Representations. 7 f. Nature-Themed Imagery, Coloring, and Additional 8 Representations. In addition, Defendant reinforces the Plant- Based Representations on each Product by displaying images 9 of plants, including flowers and leaves, and by using green coloring. Defendant also reinforces the Plant-Based 10 Representations on each Product through the following additional labeling statements: 11 •“Get nature on your side” 12 •“Made using renewable plant-based ingredients” or “Made 13 using renewable plant-based & mineral ingredients”

14 •“At Ecover, we have been pioneering green science for over 30 years to make effective, plant-based cleaners by planet- 15 loving people”

16 g. Key Ingredients. All Products contain non-plant-based, chemically modified, and highly processed ingredients, in 17 overlapping combinations. The Purchased Products contains non-natural ingredients that are found in the Unpurchased 18 Products. In addition, Defendant admits certain ingredients in each Product aresynthetic. 19 h. Misleading Effect. The misleading effect of the Products’ 20 labels is the same for all Products. 21 First Am. Compl. ¶ 54. Based on these allegations, the Court finds Maisel has sufficiently alleged 22 the unpurchased Ecover products are substantially similar to the Ecover product she purchased. 23 Moreover, courts in the Ninth Circuit caution against too rigid an application of the standing 24 requirements, warning “[courts] must examine the questions realistically: [they] must reject the 25 temptation to parse too finely, and consider instead the context of the inquiry.” Armstrong, 275 26 F.3d at 867. While arguments about the differences between the products, including their uses and 27 ingredients, may be significant on class certification or summary judgment, SC Johnson’s 1 Costco Wholesale Corp., 336 F. Supp. 3d 1109, 1115 (N.D. Cal. 2018) (“Facts that plaintiff did 2 not purchase the Laundry Detergent and the Laundry Detergent has different ingredients and that 3 the Laundry Detergent only shares one harmful ingredient with the Dish Soap are not in and of 4 themselves hurdles to plaintiff’s standing.”); Bohac, 2014 WL 1266848, at *12 (finding plaintiff 5 had standing to bring claims challenging 29 products for having the label “100% NATURAL” and 6 “all natural” because he claimed that all of the products “contain essentially the same 7 representations” and “[t]he harm that he alleges, i.e., that he was misled by that purportedly 8 fraudulent and incorrect representation, is the same for all 29 products.”). SC Johnson’s motion is 9 therefore denied on this ground. 10 4. Injunctive Relief 11 SC Johnson also argues Maisel lacks standing to seek injunctive relief because she does 12 not plan to purchase the product, as formulated, in the future. Mot. at 19-20. 13 In order to establish standing to seek injunctive relief, a plaintiff “must demonstrate that he 14 has suffered or is threatened with a ‘concrete and particularized’ legal harm, coupled with ‘a 15 sufficient likelihood that he will again be wronged in a similar way.’” Bates v. United Parcel 16 Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (quoting Lujan, 504 U.S. at 560; City of Los Angeles 17 v. Lyons, 461 U.S. 95, 111 (1983)). The latter inquiry turns on whether the plaintiff has a “real 18 and immediate threat of repeated injury.” Id. The threat of future injury cannot be “conjectural or 19 hypothetical” but must be “certainly impending” to constitute an injury in fact for injunctive relief 20 purposes. Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 967 (9th Cir. 2018). 21 In the Ninth Circuit, “a previously deceived consumer may have standing to seek an 22 injunction against false advertising or labeling, even though the consumer now knows or suspects 23 that the advertising was false at the time of the original purchase, because the consumer may 24 suffer an ‘actual and imminent, not conjectural or hypothetical’ threat of future harm.” Id. at 969 25 (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)). This harm may be 26 demonstrated in two ways: (1) “the consumer’s plausible allegations that she will be unable to rely 27 on the product’s advertising or labeling in the future, and so will not purchase the product 1 the product in the future, despite the fact it was once marred by false advertising or labeling, as she 2 may reasonably, but incorrectly, assume the product was improved.” Id. at 969-70. 3 In Davidson, the plaintiff alleged false advertising of flushable wipes that were not, in fact, 4 “suitable for disposal down a toilet.” Id. at 961. The Ninth Circuit held that she had adequately 5 pleaded imminent or actual harm by alleging “that she ‘continues to desire to purchase wipes that 6 are suitable for disposal in a household toilet’; ‘would purchase truly flushable wipes 7 manufactured by [Kimberly–Clark] if it were possible’; ‘regularly visits stores . . . where 8 [Kimberly–Clark’s] “flushable” wipes are sold’; and is continually presented with Kimberly– 9 Clark’s flushable wipes packaging but has ‘no way of determining whether the representation 10 “flushable” is in fact true.’” Id. at 970-71. 11 Here, Maisel alleges that if the products’ ingredients were as represented, she “would like 12 to purchase the Products again in the future, despite the fact that the Products were once marred by 13 false advertising or labeling.” First Am. Compl. ¶ 9. She maintains she “is at risk of reasonably, 14 but incorrectly, assuming that [SC Johnson] fixed the formulation of the Products such that [she] 15 may buy them again, believing they were no longer falsely advertised.” Id. Maisel further alleges 16 she “continues to see the Products available for purchase and desires to purchase them again if the 17 Plant-Based Representations were in fact true,” but she “is, and continues to be, unable to rely on 18 the truth of the Products’ Plant-Based Representations.” Id. ¶ 8. These allegations closely mirror 19 the Davidson plaintiff’s. See also In re Bang Energy Drink Mktg. Litig., 2020 WL 4458916, at 20 *11 (N.D. Cal. Feb. 6, 2020) (finding standing to plead injunctive relief in false advertising case 21 where plaintiffs alleged they regularly visited places where defendant’s products are sold and 22 would purchase their products in the future if they contained sufficient quantities of the desired 23 ingredients, but they had no way to be certain that defendant’s ingredient representations are true 24 when they see the products on the store shelves); Snarr v. Cento Fine Foods Inc., 2019 WL 25 7050149, at *6 (N.D. Cal. Dec. 23, 2019) (“Plaintiffs establish threat of future harm by alleging 26 that they would purchase the Products in the future only if they could rely on Defendant’s 27 labeling, whether the ‘Certified’ mark was substantiated as D.O.P. certification or if it was 1 will not purchase the Products until they can rely on the Products’ representations. Thus, the 2 Court holds that Plaintiffs have standing to seek injunctive relief and DENIES Defendant’s motion 3 to dismiss the claims for such relief.”); Shank v. Presidio Brands, Inc., 2018 WL 1948830, at *5 4 (N.D. Cal. Apr. 25, 2018) (rejecting argument that the plaintiff could read labels in the future to 5 determine whether products were “all natural” and holding that the plaintiff plausibly pleaded 6 future harm by alleging that he would buy food products in the future if they were in fact all 7 natural and that he would be “‘hesitant to rely’ on Presidio’s labeling due to the 8 misrepresentations” that he was challenging in the case). Thus, because Maisel has not disclaimed 9 an interest in purchasing Ecover products in the future, the Court finds her allegations are 10 sufficient. See Ries v. Arizona Beverages USA LLC, 287 F.R.D. 523, 533 (N.D. Cal. 2012) (“As 11 plaintiffs further note, were the Court to accept the suggestion that plaintiffs’ mere recognition of 12 the alleged deception operates to defeat standing for an injunction, then injunctive relief would 13 never be available in false advertising cases, a wholly unrealistic result.”); Henderson v. Gruma 14 Corp., 2011 WL 1362188 at *7 (C.D. Cal. Apr. 11, 2011) (“If the Court were to construe Article 15 III standing for FAL and UCL claims as narrowly as the Defendant advocates, federal courts 16 would be precluded from enjoining false advertising under California consumer protection laws 17 because a plaintiff who had been injured would always be deemed to avoid the cause of the injury 18 thereafter (‘once bitten, twice shy’) and would never have Article III standing.”). SC Johnson 19 argues Maisel’s “claim that she is ‘at risk’ of ‘assuming that [it] fixed the formulation of the 20 Products such that [she] may buy them again, believing they were no longer falsely advertised’ 21 rings hollow.” Mot. at 20. At this point in the proceedings, however, the Court is obligated to 22 accept Maisel’s allegations as true. See In re Bang Energy Drink Mktg. Litig., 2020 WL 4458916, 23 at *11. Accordingly, the Court holds that Maisel has standing to seek injunctive relief. 24 V. RULE 12(B)(6) 25 SC Johnson also moves for dismissal under Federal Rule of Civil Procedure 12(b)(6), 26 which “tests the legal sufficiency of a claim. A claim may be dismissed only if it appears beyond 27 doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to 1 complaint must contain a “short and plain statement of the claim showing that the pleader is 2 entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, a complaint must plead “enough facts to state a 3 claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 4 Plausibility does not mean probability, but it requires “more than a sheer possibility that a 5 defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 687 (2009). A complaint must 6 therefore provide a defendant with “fair notice” of the claims against it and the grounds for relief. 7 Twombly, 550 U.S. at 555 (quotations and citation omitted). In considering a motion to dismiss, 8 the court accepts factual allegations in the complaint as true and construes the pleadings in the 9 light most favorable to the nonmoving party. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 10 F.3d 1025, 1031 (9th Cir. 2008).; Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). 11 A. UCL, FAL, and CLRA Claims 12 Maisel’s first three causes of actions are brought under the UCL, FAL, and CLRA for 13 allegedly misleading statements on the product packaging. The UCL prohibits any “unlawful, 14 unfair or fraudulent business act or practice.” Cal. Bus. & Prof. Code § 17200. The FAL 15 prohibits any “unfair, deceptive, untrue, or misleading advertising.” Id. § 17500. “Any violation 16 of the false advertising law” necessarily violates the UCL. Williams v. Gerber Prods. Co., 552 17 F.3d 934, 938 (9th Cir. 2008) (internal quotation marks omitted). The CLRA prohibits “unfair 18 methods of competition and unfair or deceptive acts or practices.” Cal. Civ. Code § 1770. For 19 example, “[a]dvertising goods or services with intent not to sell them as advertised” is an unlawful 20 practice. Id. § 1770(a)(9). 21 SC Johnson argues Maisel fails to adequately allege the product labels are misleading 22 under these statutes because her interpretations of “plant-based ingredients” and “plant-based and 23 mineral ingredients” do not reflect a reasonable consumer’s understanding of the terms. Mot. at 24 13-14. It further argues the claims fail because they are subject to the heightened pleading 25 standard under Rule 9, and because Maisel does not allege the products lack plant-based or 26 mineral ingredients. Id. at 12. 27 1. Rule 9(b) Heightened Pleading Standard 1 particularity the circumstances regarding fraud or mistake.” Fed. R. Civ. P. 9(b). A claim sounds 2 in fraud if the plaintiff alleges “a unified course of fraudulent conduct and rel[ies] entirely on that 3 course of conduct as the basis of a claim.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103 4 (9th Cir. 2003). The context surrounding the fraud must “be ‘specific enough to give defendants 5 notice of the particular misconduct . . . so that they can defend against the charge and not just deny 6 that they have done anything wrong.’” Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 7 2009) (quoting Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001)). Thus, 8 “[a]verments of fraud must be accompanied by ‘the who, what, when, where, and how’ of the 9 misconduct charged.” Vess, 317 F.3d at 1106 (quoting Cooper v. Pickett, 137 F.3d 616, 627 (9th 10 Cir. 1997)). 11 Rule 9(b)’s heightened pleading standard applies to UCL, FAL, and CLRA causes of 12 actions because they “are ‘grounded in fraud’ or ‘sound in fraud.’” In re Apple & AT & T iPad 13 Unlimited Data Plan Litig., 802 F. Supp. 2d 1070, 1075 (N.D. Cal. 2011) (quoting Kearns, 567 14 F.3d at 1125). Maisel alleges SC Johnson used several false or misleading labels to market and 15 sell the Ecover products. Because these allegations sound in fraud, they must meet the heightened 16 pleading standards by alleging the “the who, what, when, where, and how.” Kearns, 567 F.3d at 17 1124–25 (quoting Vess, 317 F.3d at 1106). As such, the Court must ensure Maisel meets the Rule 18 9(b) threshold before assessing whether she alleges sufficient facts to demonstrate a reasonable 19 consumer would be deceived by the advertisements. 20 Maisel alleges that in early 2020 (the “when”), she (the “who”) purchased Ecover 21 Dishwasher Tablets at Andronicos Community Market in Berkeley, California (the “where”). 22 First Am. Compl. ¶¶ 8. She asserts that SC Johnson misled customers through “falsely and 23 misleadingly labels certain of its ‘ecover’ brand cleaning products with the following claims: 24 ‘Plant-based ingredients’; ‘With plant-based ingredients’; ‘Plant-based & mineral ingredients’; or 25 ‘With plant-based and mineral ingredients’” (the “what”). Id. ¶ 1. Maisel expands on the “what” 26 by detailing how SC Johnson reinforces the plant-based representations on each product by 27 displaying images of plants, including flowers and leaves, and by using green coloring, and by 1 representations stated on the product’s label and packaging, which leads consumers, including 2 herself, “to believe that the Products only contain ingredients that come from plants and/or from 3 plants and minerals, and that were not subjected to chemical modification or processing, which 4 materially altered the ingredients’ original plant-based or mineral composition. As such, 5 reasonable consumers, including Plaintiff, believe the Products only contain natural ingredients” 6 (the “how”). Id. ¶¶ 8, 70. Based on these allegations, the Court finds Maisel “set[s] forth more 7 than the neutral facts necessary to identify the transaction”; indeed, she “set[s] forth what is false 8 or misleading about a statement, and why it is false.” Vess, 317 F.3d at 1106; see also Zeiger, 304 9 F. Supp. 3d at 849; Clancy v. The Bromley Tea Co., 308 F.R.D. 564, 576 (N.D. Cal. 2013); 10 Loomis v. Slendertone Distribution, Inc., 420 F. Supp. 3d 1046, 1079 (S.D. Cal. 2019); Shank, 11 2018 WL 510169, at *8; Przybylak v. Bissell Better Life LLC, 2019 WL 8060076, at *4 (C.D. Cal. 12 July 19, 2019); Balser v. Hain Celestial Grp., Inc., 640 F. App’x 694, 695-96 (9th Cir. 2016). 13 Accordingly, Maisel pleads her UCL, FAL, and CLRA causes of action with sufficient 14 particularity to place SC Johnson on notice of the circumstances constituting the alleged fraud. 15 2. Reasonable Consumer Test 16 To state a claim under the UCL, FAL, and CLRA, Maisel must allege facts satisfying the 17 “reasonable consumer” standard, i.e. that members of the public are likely to be deceived.1 18 Williams, 552 F.3d at 938. “‘Likely to deceive’ implies more than a mere possibility that the 19 advertisement might conceivably be misunderstood by some few consumers viewing it in an 20 unreasonable manner.” Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496, 508 (2003). 21 “Rather, the phrase indicates that the ad is such that it is probable that a significant portion of the 22 general consuming public or of targeted consumers, acting reasonably in the circumstances, could 23 be misled.” Id. “In determining whether a statement is misleading under the statute, ‘the primary 24 evidence in a false advertising case is the advertising itself.’” Colgan v. Leatherman Tool Grp., 25 Inc., 135 Cal. App. 4th 663, 679 (2006), as modified on denial of reh’g (Jan. 31, 2006) (quoting 26 Brockey v. Moore, 107 Cal. App. 4th 86, 110 (2003)). 27 1 Whether a business practice is deceptive is an issue of fact not generally appropriate for 2 decision on a motion to dismiss. See, e.g., Williams, 552 F.3d at 938-39 (citing Linear Tech. 3 Corp. v. Applied Materials, Inc., 152 Cal. App. 4th 115, 134-35 (2007)). The Ninth Circuit has 4 emphasized that under the reasonable consumer test, it is a “rare situation in which granting a 5 motion to dismiss is appropriate” because “it raises questions of fact.” Reid v. Johnson & 6 Johnson, 780 F.3d 952, 958 (9th Cir. 2015); Williams, 552 F.3d at 939. Thus, for purposes of this 7 order, the Court need only decide whether it is plausible that “‘a significant portion of the general 8 consuming public or of targeted consumers, acting reasonably in the circumstances, could be 9 misled.’” Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016). The Court finds that it is. 10 In Williams, the Ninth Circuit reversed dismissal of UCL, FAL, and CLRA claims. 552 11 F.3d at 940. The plaintiff alleged that the use of “Fruit Juice” on a snack accompanied with 12 images of fruit was deceptive because the snack “contained no fruit juice from any of the fruits 13 pictured on the packaging and because the only juice contained in the product was white grape 14 juice from concentrate.” Id. at 936. The plaintiff also challenged language on the side panel of 15 the packaging that the snack “was made ‘with real fruit juice and other all natural ingredients,’ 16 even though the two most prominent ingredients were corn syrup and sugar” and was “one of a 17 variety of nutritious Gerber Graduates foods and juices.” Id. The Ninth Circuit disagreed with the 18 district court’s assessment that “no reasonable consumer upon review of the package as a whole 19 would conclude that Snacks contains juice from the actual and fruit-like substances displayed on 20 the packaging particularly where the ingredients are specifically identified.” Id. at 939. Instead, 21 the Ninth Circuit noted that consumers should not “be expected to look beyond misleading 22 representations on the front of the box to discover the truth from the ingredient list in small print 23 on the side of the box.” Id. 24 Maisel alleges SC Johnson uses several false or misleading phrases that, taken together, 25 cause reasonable consumers to “believe the Products only contain ingredients that come from 26 plants and/or from plants and minerals, and that are not subject to chemical modification or 27 processing, which materially alters the ingredients’ original plant-based or mineral composition.” 1 mineral ingredients, and in that sense, certain aspects of the packaging could be considered 2 accurate. “In applying the reasonable consumer standard, however, the packaging must be 3 considered in context.” Tucker v. Post Consumer Brands, LLC, 2020 WL 1929368, at *5 (N.D. 4 Cal. Apr. 21, 2020). For example, in Tucker, plaintiffs alleged that the brand name “Honey 5 Bunches of Oats” and the images on the cereal’s packaging deceptively convey that honey is a 6 primary or significant sweetener in the cereal. Id. In denying Post’s motion to dismiss the claims 7 on the ground that no reasonable consumer would understand the packaging to make a 8 representation about the amount of honey in the cereal, the court considered the packaging in 9 context, including an image of a radiating sun, the words “HONEY BUNCHES OF OATS,” and a 10 honey dipper dripping honey. Id. Although the package did not make any objective 11 representations about the amount of honey in the cereal, “a reasonable consumer could see the 12 prominent honey-related words and imagery and be deceived into thinking the cereal contained 13 relatively less refined sugar and more honey. If so misled, the reasonable consumer is not 14 expected to pick up the product and examine the fine print on the ingredient list.” Id. 15 Here, too, the Court must consider the packaging in context. The Ecover brand cleaning 16 products include the following label claims: “Plant-based ingredients”; “With plant-based 17 ingredients”; “Plant-based & mineral ingredients”; or “With plant-based and mineral ingredients.” 18 First. Am. Compl. ¶¶ 1, 18-31. The products also include phrases such as “Get nature on your 19 side,” “Made using renewable plant-based ingredients,” “Made using renewable plant-based & 20 mineral ingredients,” and/or “At Ecover, we have been pioneering green science for over 30 years 21 to make effective, plant-based cleaners by planet-loving people,” as well as by displaying images 22 of plants and by using green coloring. Id. ¶¶ 1, 16. The products also display images of plants, 23 including flowers and leaves, and use green coloring. Id. ¶¶ 1, 18-31. Maisel’s allegations 24 regarding a reasonable consumers’ understanding of these plant-based representations is consistent 25 with cases concerning similar plant-based representations. For example, in Przybylak, at issue 26 were a number of cleaning and personal care products labeled and advertised as “plant-derived,” 27 “made with ‘plant-derived cleaning agents’ or ‘100% plant-derived cleaning agents,’” among 1 false and misleading because “Defendant’s products are not natural or made only with plant- 2 derived agents, and instead contain various unnatural or synthetic ingredients and cleaning 3 agents.” Id. Defendant, however, argued “no reasonable consumer would believe Defendant to 4 have guaranteed its products to be 100% natural and lacking any synthetic ingredients.” Id. at *5. 5 In rejecting defendant’s arguments, the court explained:

6 Whether or not Defendant’s representations actually are true or not cannot be determined on a motion to dismiss. Plaintiffs plausibly 7 allege that Defendant falsely or misleadingly represented that its products were natural or plant-derived, that a reasonable consumer 8 would rely on those representations in purchasing Defendant’s products, and that a reasonable consumer would understand those 9 representations to mean that the products did not contain unnatural or synthetic ingredients. 10 11 Id. at *6. Accordingly, the court denied defendant’s motion to dismiss plaintiffs’ claims under the 12 CLRA, UCL, and FAL. Id. 13 Similarly, in Kutza v. Williams-Sonoma, Inc., plaintiff asserted that 60 cleaning and 14 personal care products labeled and marketed as “plant-based,” “Active Ingredients Derived from 15 Natural Sources,” “naturally derived,” and “natural,” were “misleading because the products in 16 fact contain “unnatural, synthetic, and/or chemical ingredients.” 2018 WL 5886611, at *1 (N.D. 17 Cal. Nov. 9, 2018). Defendant contended that “a reasonable consumer would understand the claim 18 of ‘natural’ only applied to the active ingredients and/or that ‘derived from natural sources’ is not 19 the equivalent of a representation that the product only contains ‘natural’ ingredients, active or 20 inactive.” Id. at *4 (emphasis in original). The court disagreed, emphasizing “[defendant] asks 21 too much . . . when it seeks a determination as a matter of law on the pleadings (even including 22 photographs of the labels) that no reasonable consumer would be misled by the cumulative effects 23 of the labeling and marketing alleged in the complaint.” Id. Accordingly, the court denied 24 defendant’s motion to dismiss plaintiff’s consumer protection claims. Id. at *5. 25 The same result was reached in Shank v. Presidio Brands, Inc., where defendant sought “to 26 capture a growing segment of consumers who will pay a premium for ‘natural, ‘naturally derived’, 27 and plant-based products’” by labeling its personal hygiene products as “naturally-derived,” 1 2018). However, the court noted the products also “contain numerous ingredients that are 2 artificially-engineered through multiple synthetic processes rendering the resulting ingredients and 3 its components unnatural and not naturally-derived.” Id. at *2 (citation omitted). The court 4 agreed with plaintiff’s allegation that the products’ labeling and advertising was false and 5 misleading, holding that “[t]he statement on the labels of [the] products ‘could easily be 6 interpreted by consumers as a claim that all the ingredients in the product[s] were natural,’ which 7 [plaintiff] has plausibly alleged is false.” Id. at *9 (citing Williams, 552 F.3d at 939). 8 Gregorio v. Clorox Co., 2018 WL 732673, at *1 (N.D. Cal. Feb. 6, 2018), involved a 9 variety of cleaning products labeled “naturally derived,” which plaintiffs alleged reasonable 10 consumers understood as meaning the products “did not contain any synthetic or non-natural 11 ingredients.” However, the products also contained “synthetic and non-natural ingredients.” Id. 12 In rejecting defendant’s argument that the term “naturally derived” would not mislead reasonable 13 consumers, the court held, “[i]t is not unreasonable as a matter of law to expect a product labeled 14 ‘naturally derived’ to contain no synthetic ingredients . . . [a]nd “the phrase [‘naturally derived’] 15 may be tantamount to, or at least could reasonably be understood to mean ‘all natural’ or ‘100% 16 natural.’” Id. at *4 (citation omitted). Therefore, the court found plaintiff’s allegations plausible 17 under the reasonable consumer test. Id. 18 Given the weight of authority finding plausible similar plant-based representations and 19 analogous representations, such as “naturally derived,” the Court finds Maisel’s allegations 20 plausible under the reasonable consumer test. See Lona’s Lil Eats, LLC v. DoorDash, Inc., 2021 21 WL 151978, at *4 (N.D. Cal. Jan. 18, 2021) (“Plausibility does not mean probability, but it 22 requires more than a sheer possibility that a defendant has acted unlawfully.”) (simplified). SC 23 Johnson argues that “no reasonable consumer would be misled by the accurate claim that the 24 products contain plant-based and mineral ingredients.” Mot. at 13. However, although the 25 products do not make any objective representations about the amount of plant-based and mineral 26 ingredients, it is plausible that a reasonable consumer could be deceived into thinking the products 27 only contain ingredients that come from plants and/or from plants and minerals. Tucker, 2020 WL 1 amount of honey in the cereal, a reasonable consumer could see the prominent honey-related 2 words and imagery and be deceived into thinking the cereal contained relatively less refined sugar 3 and more honey.”). SC Johnson also argues the products’ “back labels also clearly state the 4 Products contain water, which all consumers know is neither a plant nor a mineral.” Mot. at 14. 5 However, a reasonable consumer “is not expected to pick up the product and examine the fine 6 print on the ingredient list.” Tucker, 2020 WL 1929368, at *5 (citing Williams, 552 F. 3d at 939- 7 40 (“We do not think that the FDA requires an ingredient list so that manufacturers can mislead 8 consumers and then rely on the ingredient list to correct those misinterpretations and provide a 9 shield for liability for the deception.”). Accordingly, SC Johnson’s motion to dismiss is denied on 10 this ground. 11 B. Breach of Express Warranty 12 In her fourth cause of action, Maisel alleges SC Johnson purports, through the products’ 13 labeling and advertising, to create express warranties that they only contain ingredients that come 14 from plants and/or from plants and minerals, and that despite its claims about the nature of the 15 products, they contain numerous ingredients that do not come from plants or minerals. First Am. 16 Compl. ¶¶ 134-35. As a result, Maisel alleges SC Johnson breached its express warranties about 17 the products because they do not conform to its affirmations and promises. Id. ¶ 135. As a direct 18 and proximate result of SC Johnson’s breach of express warranty, Maisel and members of the 19 class were harmed in the amount of the purchase price they paid for the and “economic losses and 20 other damages including, but not limited to, the amounts paid for the Products, and any interest 21 that would have accrued on those monies, in an amount to be proven at trial.” Id. ¶ 136. 22 SC Johnson argues Maisel fails to state a breach of express warranty claim for two reasons. 23 First, it argues “plant-based ingredients,” “with plant-based ingredients,” “plant-based and mineral 24 ingredients,” and “with plant-based and mineral ingredients” are true statements about the 25 products, as they contain plant-based or plant-based and mineral ingredients. Mot. at 21. It 26 maintains Maisel got what she paid for—dishwasher tablets that contain plant-based and mineral 27 ingredients. Id. Second, it argues Maisel’s interpretation of the statements is unreasonable and 1 consumers that the Products only contain ingredients that (1) come from plants and/or from plants 2 and animals; and (2) are not subject to chemical modification or processing, which materially 3 alters the ingredients’ original plant-based or mineral composition.” Id. at 21-22 (emphasis in 4 original). 5 Under California law, “a plaintiff asserting a breach of warranty claim must allege facts 6 sufficient to show that: (1) the seller’s statements constitute an affirmation of fact or promise or a 7 description of the goods; (2) the statement was part of the basis of the bargain; and (3) the 8 warranty was breached.” Mattero, 336 F. Supp. 3d at 1115 (citing Weinstat v. Dentsply Internat., 9 Inc., 180 Cal. App. 4th 1213, 1227 (2010)). Statements on a product’s label are part of the bargain 10 between buyer and seller, Weinstat, 180 Cal. App. 4th at 1227, and create express warranties, 11 Mattero, 336 F. Supp. 3d at 1115-16 (citing several cases). Courts look to the context of the 12 statement to determine whether an express warranty has been made, including the label. Id. at 13 1116 (holding the “environmentally responsible” claim on defendant’s dish soap and laundry 14 detergent product labels constitutes an affirmative fact or promise that the products do not have 15 “unnatural, harmful, and toxic chemicals”); Jones v. Nutiva, Inc., 2016 WL 5210935, at *25 (N.D. 16 Cal. Sept. 22, 2016) (finding plaintiff adequately alleged that a virgin coconut oil label, in its full 17 context, constitutes an affirmative fact or promise). “The determination as to whether a particular 18 statement is an expression of opinion or an affirmation of a fact is often difficult, and frequently is 19 dependent upon the facts and circumstances existing at the time the statement is made.” Keith v. 20 Buchanan, 173 Cal. App. 3d 13, 21 (1985). As such, “courts liberally construe sellers’ 21 affirmations of quality in favor of injured consumers.” Jones, 2016 WL 5210935, at *9 22 (simplified). 23 “[C]ourts in this district regularly hold that stating a claim under California consumer 24 protection statutes is sufficient to state a claim for express warranty.” Hadley, 273 F. Supp. 3d at 25 1095 (citing Tsan v. Seventh Generation, Inc., 2015 WL 6694104, at *7 (N.D. Cal. Nov. 3, 2015) 26 (because plaintiffs satisfied the reasonable consumer standard with respect to their California 27 consumer protection claims, the same “allegations [we]re sufficient to state a claim for breach of 1 Cal. 2014) (denying motion to dismiss breach of express warranty claim “for the same reasons as 2 the consumer protection and misrepresentation-based claims”). Accordingly, because Maisel’s 3 “allegations are sufficient to state a claim under the reasonable consumer standard, they are 4 likewise sufficient to state a claim for breach of express warranty.” Cooper v. Curallux LLC, 2020 5 WL 4732193, at *7 (N.D. Cal. Aug. 14, 2020). SC Johnson’s motion to dismiss Maisel’s fourth 6 cause of action for breach of express warranty is therefore denied. 7 C. Unjust Enrichment2 8 In her fifth cause of action, Maisel alleges that by purchasing the Ecover products, she and 9 members of the class conferred a benefit on SC Johnson in the form of the purchase price, SC 10 Johnson had knowledge of such benefit, and its acceptance and retention of the benefit is 11 inequitable and unjust because the benefit was obtained by its fraudulent and misleading 12 representations and omissions. First Am. Compl. ¶¶ 140-42. SC Johnson argues Maisel cannot 13 state a claim for unjust enrichment because she received the benefit of the bargain – a product that 14 contains plant-based and mineral ingredients. Mot. at 22. 15 “To allege unjust enrichment as an independent cause of action, a plaintiff must show that 16 the defendant received and unjustly retained a benefit at the plaintiff’s expense.” ESG Capital 17 Partners, 828 F.3d at 1038. Restitution is not ordinarily available to a plaintiff unless “‘the 18 benefits were conferred by mistake, fraud, coercion or request; otherwise, though there is 19 enrichment, it is not unjust.’” Nibbi Bros., Inc. v. Home Fed. Sav. & Loan Assn., 205 Cal. App. 3d 20 1415, 1422 (Cal. Ct. App. 1988) (quoting 1 Witkin, Summary of Cal. Law (9th ed. 1987) 21 Contracts, § 97, p. 126.)). 22 As Maisel’s unjust enrichment claim is based on the same alleged misrepresentations about 23 SC Johnson’s products as her other claims, the Court finds they are sufficient to state a claim for 24 unjust enrichment. See Rice-Sherman v. Big Heart Pet Brands, Inc., 2020 WL 1245130, at *13 25 2 The Ninth Circuit has explained that “[w]hile California case law appears unsettled on the 26 availability of such a cause of action, this Circuit has construed the common law to allow an unjust enrichment cause of action through quasi-contract. We therefore allow the cause of action, 27 as we believe it states a claim for relief as an independent cause of action or as a quasi-contract 1 (N.D. Cal. Mar. 16, 2020) (denying motion to dismiss unjust enrichment claim where plaintiffs 2 sufficiently pled fraud and breach of warranty claims); Snarr, 2019 WL 7050149, at *7-8 (denying 3 motion to dismiss unjust enrichment claim because plaintiffs’ allegations sufficiently state a claim 4 under the fraudulent prong of the UCL); Przybylak, 2019 WL 8060076, at *9 (denying motion to 5 dismiss unjust enrichment claim where plaintiffs alleged they conferred benefits on defendant by 6 purchasing its products, and that defendant was unjustly enriched due to their reliance on its 7 misrepresentations); Brenner v. Procter & Gamble Co., 2016 WL 8192946, at *7-8 (C.D. Cal. 8 Oct. 20, 2016) (“Because . . . Plaintiff plausibly alleges that a consumer could have been enticed to 9 purchase Defendant’s product based on the allegedly misleading label, . . . Plaintiff states a quasi- 10 contract claim.”). Accordingly, SC Johnson’s motion to dismiss Maisel’s fifth cause of action is 11 denied. 12 D. Whether Plaintiff’s UCL, FAL, CLRA and Unjust Enrichment Claims Fail Because She Does Not Allege She Lacks an Adequate Remedy At Law 13 14 SC Johnson argues Maisel’s UCL, FAL, and unjust enrichment claims must be dismissed 15 in their entirety because they provide exclusively equitable relief, not damages, and Maisel does 16 not and cannot establish she lacks an adequate remedy at law. Mot. at 22-23. However, the Court 17 follows other courts in this district that find no bar to the pursuit of alternative remedies at the 18 pleadings stage. See, e.g., Arora v. GNC Holdings, Inc., 2019 WL 6050750, at *13 (N.D. Cal. 19 Nov. 15, 2019); Madani v. Volkswagen Grp. of Am., Inc., 2019 WL 3753433, at *9 (N.D. Cal. 20 Aug. 8, 2019); Luong v. Subaru of America, Inc., 2018 WL 2047646, at * 7 (N.D. Cal. May 2, 21 2018); Aberin v. Am. Honda Motor Co., Inc., 2018 WL 1473085, at *9 (N.D. Cal. Mar. 26, 2018); 22 Adkins v. Comcast Corp., 2017 WL 3491973, at *3 (N.D. Cal. Aug. 1, 2017). The Court therefore 23 denies the motion to dismiss on this ground. 24 VI. PERSONAL JURISDICTION 25 Finally, SC Johnson argues the Court would lack personal jurisdiction over the non- 26 California class members Maisel purports to represent. Mot. at 24-26. The Court need not reach 27 this argument, however, because it has pendent jurisdiction over Maisel’s class claims. 1 economy, avoidance of piecemeal litigation, and overall convenience of the parties . . . .” Action 2 Embroidery Corp. v. Atl. Embroidery, Inc., 368 F.3d 1174, 1181 (9th Cir. 2004). “When a 3 defendant must appear in a forum to defend against one claim, it is often reasonable to compel that 4 defendant to answer other claims in the same suit arising out of a common nucleus of operative 5 facts.” Id. The Court has discretion to exercise “pendent personal jurisdiction over a defendant 6 with respect to a claim for which there is no independent basis of personal jurisdiction so long as it 7 arises out of a common nucleus of operative facts with a claim in the same suit over which the 8 court does have personal jurisdiction.” Id. at 1180. 9 Here, the Court finds Maisel’s claims arise out of the same nucleus of operative facts as the 10 putative out-of-state class members because they involve the same products and the same alleged 11 misrepresentations; the only difference between the claims is where the products were purchased. 12 See Sloan v. Gen. Motors LLC, 287 F. Supp. 3d 840, 860-63 (N.D. Cal. 2018), order clarified, 13 2018 WL 1156607 (N.D. Cal. Mar. 5, 2018) (exercising pendent jurisdiction over non-resident 14 plaintiffs’ claims where they “overlap[ped] substantially with the claims . . . already before this 15 Court, arising out of the same nucleus of operative facts,” and doing so would “impose only a de 16 minimis burden on [defendant]”); Allen v. ConAgra Foods, Inc., 2018 WL 6460451, at *8 (N.D. 17 Cal. Dec. 10, 2018) (exercising pendent jurisdiction over claims by nonresident named plaintiffs 18 in a putative nationwide food-labeling class action). Further, “[d]oing so will serve the interests of 19 ‘judicial economy, avoidance of piecemeal litigation, and overall convenience of the parties’ by 20 preventing the need for multiple such actions in other states and potentially subjecting [SC 21 Johnson] to inconsistent obligations.” Allen, 2018 WL 6460451, at *8 (citing Action Embroidery, 22 368 F.3d at 1181). SC Johnson “is already before this court to defend against [Maisel’s] claims, 23 and the additional burden is de minimis.” Id. (finding pendent jurisdiction appropriate because the 24 California plaintiff, not the nonresident plaintiffs, brought the defendant to court in California). 25 Accordingly, the Court exercises its discretion to assert pendent jurisdiction over SC 26 Johnson as to the non-California class members’ claims. 27 1 VII. CONCLUSION 2 For the reasons stated above, the Court DENIES SC Johnson’s motion to dismiss. The 3 Court shall conduct a case management conference on June 3, 2021 at 10:00 a.m. by Zoom video 4 conference. The webinar link and instructions are located at 5 https://cand.uscourts.gov/judges/hixson-thomas-s-tsh/, This conference shall be attended by lead 6 || trial counsel. Parties who are not represented by counsel must appear personally. 7 By May 27, 2021, the parties shall file a joint case management statement containing the g || information in the Standing Order for All Judges in the Northern District of California, available 9 at: http://cand.uscourts.gov/tshorders. The Joint Case Management Statement form may be 10 || obtained at: http://cand.uscourts.gov/civilforms. If the statement is e-filed, no chambers copy is 11 required. 12 IT IS SO ORDERED.

13 14 || Dated: May 5, 2021 . 15 - THOMAS S. HIXSON Q 16 United States Magistrate Judge

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