Moore v. EO PRODUCTS, LLC

• Court: District Court, N.D. California
• Decided: September 29, 2023
• Docket: 4:22-cv-07618
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DREW MOORE, Case No. 22-cv-07618-JST

8 Plaintiff, ORDER GRANTING IN PART AND 9 v. DENYING IN PART DEFENDANT’S MOTION TO DISMISS 10 EO PRODUCTS, LLC, Re: ECF No. 9 Defendant. 11

12 13 Before the Court is Defendant EO Products, LLC’s (“EO”) motion to dismiss. ECF No. 9. 14 The Court will grant the motion in part and deny it in part. 15 I. BACKGROUND 16 A. Factual Background1 17 “In recent years, consumers have poured billions3 of dollars into the natural or plant-based 18 skincare and/or cosmetic market.” ECF No. 8 ¶ 10. Consumers value these products because of 19 “perceived benefits of avoiding diseases, attaining health and wellness, helping the environment, 20 assisting local farmers, assisting factory workers who would otherwise be exposed to synthetic 21 and hazardous substances, and financially supporting companies that share these values.” Id. 22 EO “manufacture[s], market[s], promote[s], advertise[s], label[s], package[s], and sell[s] a 23 variety of personal and/or skincare and cosmetic products,” ECF No. 8 ¶ 14, including “[p]roducts 24 sold under the Everyone brand name,” id. ¶ 4. Fifty-seven of those products (collectively, the 25 “Products”) are labeled “made with plants,” “plant-based,” “plant-based moisturizers,” “made 26 with plants,” “made with plant extracts,” and/or “made with plant-based extracts” (collectively, 27 1 the “Plant-Based Representations”). Id. ¶ 15–74. The Products labels also have “images of plants, 2 including flowers [] [and] green leaves[,] . . . a green background[,] and/or . . . green color font.” 3 Id. However, the Products contain “synthetic, non-plant-based, animal based, and/or highly 4 processed ingredients.” Id. ¶ 75. Accordingly, the labels “materially misrepresent[] that the 5 Products only contain ingredients that come from plants, and/or that are not subjected to chemical 6 modification or processing, which materially altered the ingredients’ original plant-based 7 composition.” Id. ¶ 81. 8 Moore purchased one or more of the Products, including Everyone Spearmint + 9 Lemongrass hand soap, in early 2022 after reading and relying upon the truthfulness of its label.2 10 ECF No. 8 ¶ 2. He “would not have purchased the Products, or would have purchased the 11 Products on different terms, if [he] had known the truth—that the Plant-Based Representations are 12 false and the Products contain non-natural, non-plant based, synthetic, and highly processed 13 ingredients.” Id. ¶ 83. 14 Moore also contends that EO “knew, or should have known, that the Plant-Based 15 Representations were false, misleading, deceptive, and unlawful, at the time that [it] advertised the 16 Products and intentionally and deliberately placed the Plant-Based Representations on the 17 Products’ labeling and packaging.” Id. ¶ 82. And that because of EO’s representations, 18 reasonable consumers, including Moore, “purchased the Products to their detriment.” Id. ¶ 83. 19 B. Procedural History 20 On October 5, 2022, Moore filed this action against EO in Marin County Superior Court. 21 ECF No. 1 at 2. Moore seeks to represent a class of “[a]ll residents of the United States who, 22 within the applicable statute of limitations periods, purchased the Products (‘Nationwide Class’),” 23 as well as a class of “[a]ll residents of California who, within four years prior to the filing of this 24

25 2 The complaint is unclear regarding whether Moore purchased EO’s Very Emollient Body Wash – Ocean Surf, Everyone Spearmint + Lemongrass hand soap, or both. Compare id. ¶¶ 2, 84. 26 Defendants refer only to Moore having purchased Everyone Spearmint + Lemongrass hand soap. See ECF Nos. 9 at 10, 18 at 22. In his opposition to the motion, Moore describes himself as 27 having purchased an unspecified “Hand Soap Product,” which would seem not to include body 1 Complaint, purchased the Products (‘California Subclass’).” ECF No. 8 ¶ 85. Moore asserts the 2 following claims for relief: (1) violations of California’s Unfair Competition Law (“UCL”) (on 3 behalf of the California Subclass); (2) violations of California’s False Advertising Law (“FAL”) 4 (on behalf of the California Subclass); (3) violations of California’s Consumer Legal Remedies 5 Act (“CLRA”) (on behalf of the California Subclass); (4) breach of express warranty (on behalf of 6 the nationwide class and the California subclass); and (5) breach of express warranty (on behalf of 7 the nationwide class and the California subclass). Id. ¶¶ 96–188. 8 EO removed the action to this Court on December 2, 2022, asserting that this Court has 9 subject matter jurisdiction pursuant to the Class Action Fairness Act of 2005, ECF No. 1 at 3, 10 which Moore has not disputed. EO now moves to dismiss the complaint. ECF No. 9. Moore 11 opposes the motion, ECF No. 18, and EO replied, ECF No. 19. 12 II. JURISDICTION 13 The Court has jurisdiction under 28 U.S.C. § 1332(d)(2). 14 III. REQUEST FOR JUDICIAL NOTICE AND INCORPORATION BY REFERENCE 15 EO requests that the Court take judicial notice of the following: (1) dictionary definitions 16 of “base” and “based,” ECF No. 9-2 at 6, 8; (2) publications that appear on the United States 17 Department of Agriculture (“USDA”) and Food and Drug Administration’s (“FDA”) webpages, 18 id. at 10–11, 14–16, 18–19, 21–27, 29–30; and (3) the complete label for Everyone Spearmint + 19 Lemongrass hand soap, id. at 32–35. “As a general rule, [courts] ‘may not consider any material 20 beyond the pleadings in ruling on a Rule 12(b)(6) motion.’” United States v. Corinthian Colleges, 21 655 F.3d 984, 998 (9th Cir. 2011) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 22 2001)). “When ‘matters outside the pleading are presented to and not excluded by the court,’ the 23 12(b)(6) motion converts into a motion for summary judgment under Rule 56,” unless those 24 matters satisfy the “incorporation-by-reference doctrine” or the standard for “judicial notice under 25 Federal Rule of Evidence 201.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 26 2018) (quoting Fed. R. Civ. P. 12(d)). 27 EO argues, and Moore does not dispute, that the definitions of “base” and “based” are 1 their respective URLs.” ECF No. 9-2 at 3. The parties also do not dispute that the Court may take 2 judicial notice of the complete label for Everyone Spearmint + Lemongrass hand soap because it 3 has been incorporated by reference into the complaint. Id. at 4. 4 The Court agrees that it may take judicial notice of the dictionary definitions of “base” and 5 “based.” See Martinez v. Mead Johnson & Co., LLC, No. 5:22-cv-00213-JWH-SHK, 2022 WL 6 15053334, at *4 (C.D. Cal. Oct. 22, 2022), appeal dismissed, No. 23-55141, 2023 WL 5246374 7 (9th Cir. May 30, 2023) (taking judicial notice of “definitions of the word ‘based’ from online 8 dictionaries”); see also Wilshire Westwood Assocs. v. Atl. Richfield Corp., 881 F.2d 801, 803 (9th 9 Cir. 1989) (taking judicial notice of the dictionary definition of “fraction”). Additionally, the 10 Court concludes that the complete label for Everyone Spearmint + Lemongrass hand soap has 11 been incorporated by reference into the complaint.3 The label is referenced in the complaint, ECF 12 No. 8 ¶ 57, forms the basis of Moore’s claims, id. ¶¶ 16, 57, 75–188, and Moore does not dispute 13 its authenticity, see Zeiger v. WellPet LLC, 304 F. Supp. 3d 837, 845 (N.D. Cal. 2018) (in a 14 product labeling case, finding that the labels for the products at issue were incorporated by 15 reference). Accordingly, the Court grants EO’s request with respect to the dictionary definitions 16 of “base” and “based,” as well as the complete Everyone Spearmint + Lemongrass label, and 17 considers those documents. 18 EO also argues that the documents published on USDA and FDA’s webpages constitute 19 “[i]nformation on government agency websites,” which “has regularly been treated as properly 20 subject to judicial notice.” ECF No. 9-2 at 3. Moore counters that the “the Court should decline 21 to take judicial notice of” the publications on the USDA and FDA’s webpages because “they 22 concern disputed facts.” Id. The Court agrees with Moore. 23 While “[a] court may take judicial notice of matters of public record without converting a 24 3 Although some courts use the terms interchangeably, judicial notice and incorporation by 25 reference are separate procedures that “permit district courts to consider materials outside a complaint . . . for different reasons and in different ways.” Khoja, 899 F.3d at 998. While EO 26 frames its request for the Court to consider the complete Everyone Spearmint + Lemongrass hand soap label as one for judicial notice, it is clear that it actually seeks a ruling that the documents 27 have been incorporated by reference. ECF No. 9-2 at 4 (arguing that the label is “incorporated by 1 motion to dismiss into a motion for summary judgment,” Lee, 250 F.3d at 689 (quotation marks 2 and citation omitted), it “cannot take judicial notice of disputed facts contained in such public 3 records,” Khoja, 899 F.3d at 999. Indeed, the Ninth Circuit has warned that “the unscrupulous use 4 of extrinsic documents to resolve competing theories against the complaint risks premature 5 dismissals of plausible claims that may turn out to be valid after discovery.” Id. at 998. Here, 6 because EO has proffered the USDA and FDA publications to dispute the facts alleged in the 7 complaint, the Court denies EO’s request for judicial notice with respect to those documents and 8 does not consider them. 9 IV. LEGAL STANDARD 10 “Dismissal under [Federal Rule of Civil Procedure] 12(b)(6) is appropriate only where the 11 complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” 12 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). A complaint must 13 contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” 14 Fed. R. Civ. P. 8(a)(2). Facts pleaded by a plaintiff “must be enough to raise a right to relief 15 above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “To survive a 16 motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a 17 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 18 Twombly, 550 U.S. at 570)). “A claim has facial plausibility when the plaintiff pleads factual 19 content that allows the court to draw the reasonable inference that the defendant is liable for the 20 misconduct alleged.” Id. In determining whether a plaintiff has met this plausibility standard, the 21 Court must “accept all factual allegations in the complaint as true and construe the pleadings in the 22 light most favorable to the nonmoving party.” Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 23 2005). 24 Additionally, any claims that are “grounded in fraud . . . must satisfy the traditional 25 plausibility standards of Rules 8(a) and 12(b)(6), as well as the heightened pleading requirements 26 of Rule 9(b).” Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 964 (9th Cir. 2018). Under Rule 27 9(b) “a party must state with particularity the circumstances constituting fraud or mistake.” Fed. 1 particular misconduct so that they can defend against the charge and not just deny that they have 2 done anything wrong.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) 3 (internal quotation marks, alterations, and citations omitted). And “averments of fraud must be 4 accompanied by the who, what, when, where, and how of the misconduct charged.” Id. 5 V. DISCUSSION 6 EO seeks dismissal of the complaint on the following grounds: (1) Moore lacks Article III 7 and statutory standing; (2) the California consumer protection claims fail because Moore “fails to 8 plead with specificity why” the packaging at issue would mislead a reasonable consumer; (3) the 9 breach of express warranty claim fails because the packaging at issue does not create a warranty; 10 (4) Moore’s unjust enrichment claim fails because there is no independent cause of action for 11 unjust enrichment under California law; (5) Moore is foreclosed from seeking equitable relief and 12 remedies because he has an adequate remedy at law; and (6) Moore fails to meet the heightened 13 pleading standard for punitive damages. ECF No. 9 at 12–32. The Court addresses each argument 14 in turn. 15 A. Standing for Products Not Purchased 16 EO argues that Moore lacks Article III and statutory standing under the UCL, FAL, and 17 CLRA to pursue all claims for the Products he did not purchase. ECF No. 9 at 23–25. 18 Specifically, EO urges the Court to conclude “that absent economic injury, [Moore’s] claims for 19 products []he did not purchase must be dismissed for lack of standing” as outlined in Lorentzen v. 20 Kroger Co., 532 F. Supp. 3d 901 (C.D. Cal. 2021). ECF No. 9 at 23. It also argues that even if 21 the Court declines to follow Lorentzen, Moore still lacks Article III standing because the product 22 he “purchased is not substantially similar to the other products,” id. at 25, and he lacks statutory 23 standing under the UCL, FAL, and CLRA because “he suffered no injury in fact with respect the 24 unpurchased product and did not lose money or property with respect to the unpurchased product,” 25 id. at 24. 26 Moore counters that “[t]he Court should reject EO’s argument as premature because 27 ‘applying the concept of standing to dismiss proposed class action allegations is a category 1 Cal. 2013)). And that he “need not show at this juncture that the Products he purchased were 2 substantially similar” to all the Products in the complaint. Id. at 28. The Court agrees with 3 Moore. 4 First, the Ninth Circuit has held that courts should apply the “class certification approach,” 5 not the “standing approach,” when analyzing purported dissimilarities between class 6 representatives and unnamed class members. Melendres v. Arpaio, 784 F.3d 1254, 1262 (9th Cir. 7 2015) (quoting Newberg on Class Actions § 2:6). Under this approach, “any issues regarding the 8 relationship between the class representative and the passive class members—such as dissimilarity 9 in injuries suffered—are relevant only to class certification, not to standing.” Id. (quoting 10 Newberg on Class Actions § 2:6). The Ninth Circuit cautioned that “[i]n determining what 11 constitutes the same type of relief or the same kind of injury, ‘[courts] must be careful not to 12 employ too narrow or technical an approach.’” Id. at 1263 (quoting Armstrong v. Davis, 275 F.3d 13 849, 868 (9th Cir. 2001), abrogated on other grounds by Johnson v. California, 543 U.S. 499 14 (2005) as recognized in B.K. by next friend Tinsley v. Snyder, 922 F.3d 957, 974 (9th Cir. 2019)). 15 After Melendres, this Court and others in this district have applied the class certification 16 approach to whether class representatives may represent a class of individuals who purchased 17 different products from the class representatives. See, e.g., Dailey v. A&W Concentrate Co., 519 18 F. Supp. 3d 668, 672 (N.D. Cal. 2021) (“[I]t is premature to consider [plaintiffs’] ability to 19 represent a class who purchased different products than [they] did.”). While courts do not speak 20 with one voice on this issue, see, e.g., Lorentzen, 532 F. Supp. 3d at 908, the Court will continue 21 to apply the class certification approach to this question because “[a]lthough Melendres ‘involved 22 a dissimilarity in injuries suffered,’” and this case involves a named plaintiff bringing claims for 23 products he did not purchase, “the distinction is not material for purposes of taking the class 24 certification approach,” Hrapoff v. Hisamitsu Am., Inc., No. 21-cv-01943-JST, 2022 WL 2168076, 25 at *2 (N.D. Cal. June 16, 2022) (quoting Pecanha v. The Hain Celestial Grp., Inc., No. 17-cv- 26 04517-EMC, 2018 WL 534299, at *9 (N.D. Cal. Jan. 24, 2018)). 27 Second, and relatedly, it is premature to consider whether the Product purchased by Moore 1 similar’ is an appropriate inquiry, but it does not relate to standing: a plaintiff has no more 2 standing to assert claims relating to a ‘similar’ product he did not buy than he does to assert claims 3 relating to a ‘dissimilar’ product he did not buy.” Clancy, 308 F.R.D. at 571. Accordingly, 4 “analyzing the ‘sufficient similarity’ of the products is not a standing inquiry, but rather an early 5 analysis of the typicality, adequacy, and commonality requirements of Rule 23.” Id. 6 Therefore, the Court will not dismiss for lack of standing Moore’s claims for products that 7 he did not purchase. 8 B. Standing for Injunctive Relief 9 EO contends that Moore lacks Article III standing to pursue injunctive relief because he 10 “fails to plausibly allege a desire to purchase EO’s ‘plant-based’ or ‘made with plants’ products in 11 the future.” ECF No. 9 at 26. Moore replies that he has standing because his “allegations of the 12 threat of future harm align precisely with Davidson[, 889 F.3d 956],” i.e., “[h]e ‘continues to see 13 the Products available for purchase and desires to purchase them again if the Plant-Based 14 Representations were true,’ but he ‘is, and continues to be, unable to rely on the truth of the 15 Products’ Plant-Based Representations.’” ECF No. 18 at 30 (quoting ECF No. 8 ¶ 2). 16 In the Ninth Circuit,

17 a previously deceived consumer may have standing to seek an injunction against false advertising or labeling, even though the 18 consumer now knows or suspects that the advertising was false at the time of the original purchase, because the consumer may suffer 19 an “actual and imminent, not conjectural or hypothetical” threat of future harm. 20 21 Davidson, 889 F.3d at 969 (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)). 22 “Knowledge that the advertisement or label was false in the past does not equate to knowledge that 23 it will remain false in the future.” Id. 24 In Davidson, the Ninth Circuit observed that “the threat of future harm may be the 25 consumer’s plausible allegations that she will be unable to rely on the product’s advertising or 26 labeling in the future, and so will not purchase the product although she would like to,” or “may 27 be the consumer’s plausible allegations that she might purchase the product in the future, despite 1 assume the product was improved.” Id. at 969–70. The Ninth Circuit held that the plaintiff had 2 standing to seek injunctive relief because she alleged that “she ‘continues to desire to purchase 3 wipes that are suitable for disposal in a household toilet’; ‘would purchase truly flushable wipes 4 manufactured by [Kimberly–Clark] if it were possible’; ‘regularly visits stores . . . where 5 [Kimberly–Clark’s] ‘flushable’ wipes are sold’”; and continually sees “Kimberly–Clark’s 6 flushable wipes packaging but has ‘no way of determining whether the representation ‘flushable’ 7 is in fact true.’” Id. at 970–71. In other words, in the Ninth Circuit, a plaintiff has standing to 8 pursue injunctive relief if:

9 (1) the consumer[] plausibl[y] alleg[es] that they will be unable to rely on the product’s advertising or labeling in the future, and so will 10 not purchase the product although they would like to; or (2) the consumer[] plausibl[y] alleg[es] that they might purchase the 11 product in the future, despite the fact it was once marred by false labeling because they may reasonably, but incorrectly, assume the 12 product was improved. 13 Brown v. Natures Path Foods, Inc., No. 21-cv-05132-HSG, 2022 WL 717816, at *5 (N.D. Cal. 14 Mar. 10, 2022) (citing Davidson, 889 F.3d at 969–70). 15 Moore satisfies these requirements. He alleges that he (1) “continues to see the Products 16 available for purchase and desires to purchase them again if the Plant-Based Representations were 17 true”; (2) “is, and continues to be, unable to rely on the truth of the Products’ Plant-Based 18 Representations”; and (3) “does not know the meaning or the import of the Products’ ingredients, 19 including whether the ingredients come from plants or minerals, or whether the ingredients’ 20 original plant-based or mineral composition has been materially altered by chemical modification 21 and processing.” ECF No. 8 ¶ 2; see also id. ¶ 3. Accordingly, Moore has “plausibly pled a threat 22 of future harm by alleging that [he] will be unable to rely on the Product’s advertising or labeling 23 in the future, and so will not purchase the Products although [he] would like to.” Brown, 2022 24 WL 717816, at *5. 25 EO’s arguments to the contrary are unavailing. First, EO argues that Moore lacks standing 26 because he “candidly admits that his willingness to consider repurchasing depends on EO 27 reformulating its products.” ECF No. 9 at 27. While allegations that a plaintiff would purchase a 1 relief, courts will find standing when they can “fairly interpret the complaint as alleging that [the 2 plaintiff] would purchase the products again in the future if they were not misleadingly labeled.” 3 Brown v. Van’s Int’l Foods, Inc., No. 22-cv-00001-WHO, 2022 WL 1471454, at *11 (N.D. Cal. 4 May 10, 2022) (finding that allegations that the plaintiff “would likely purchase the products again 5 in the future if they were reformulated to contain the amount of protein represented on the labels” 6 subject to this interpretation); Brown, 2022 WL 717816, at *6 (denying a motion to dismiss an 7 injunctive relief claim because allegations that “[i]f the Products were reformulated to provide the 8 grams of protein that are represented on the labels, [Plaintiffs] would likely purchase them again in 9 the future” could be plausibly read to mean that “Plaintiffs simply seek to buy the Products as 10 advertised” (alterations and emphasis in original)). Like in the Brown cases, Moore’s allegations 11 can be reasonably interpreted to mean that he would purchase the Products again if they were 12 correctly labeled. 13 Second, EO argues that if Moore would like to purchase the Products again, he can review 14 the labeling to “see if the Products still contain plant-based ingredients that have undergone 15 processing, or ingredients that are only unprocessed, unmodified plants, which by law must be 16 identified by their common, botanical name, part of plan, and type of material . . . .” ECF No. 19 17 at 13. This argument is not convincing, however, in light of Moore’s allegation that he “does not 18 know the meaning or the import of the Products’ ingredients, including whether the ingredients 19 come from plants or minerals, or whether the ingredients’ original plant-based or mineral 20 composition has been materially altered by chemical modification and processing.” ECF No. 8 21 ¶ 2. Defendants’ argument is insufficient “at this juncture of the proceedings because, as Plaintiffs 22 point out, it is not readily apparent that the ingredient list would be helpful—i.e., it is not clear that 23 a reasonable consumer would be able to determine whether the ingredients on the ingredient list 24 were” plant-based or not. Pecanha v. The Hain Celestial Grp., Inc., No. 17-CV-04517-EMC, 25 2018 WL 534299, at *5 (N.D. Cal. Jan. 24, 2018). EO creates a factual dispute that cannot be 26 resolved at the motion to dismiss stage. See Jones v. ConAgra Foods, Inc., 912 F. Supp. 2d 889, 27 897 n.2 (N.D. Cal. 2012). 1 The Court denies EO’s motion to dismiss on this ground. 2 C. Consumer Protection Claims 3 The parties agree that Moore’s consumer protection law claims are governed by the 4 “reasonable consumer” test. See, e.g., Williams v. Gerber, 552 F.3d 934, 938 (9th Cir. 2008) 5 (“Appellants’ claims under [California’s Unfair Competition Law and Consumers Legal Remedies 6 Act] are governed by the ‘reasonable consumer’ test.”). However, they dispute whether a 7 reasonable consumer would be misled by the Plant-Based Representations and the Products’ label 8 such that they believe the Products “only contain ingredients that come from plants and/or 9 minerals, and that are not subject to chemical modification or processing, which materially alters 10 the ingredients’ original plant-based or mineral composition.” ECF No. 8 ¶ 13; see also ECF Nos. 11 9 at 12–23, 18 at 13–27, 19 at 6–11. 12 To survive a motion to dismiss under the reasonable consumer test, the plaintiff must plead 13 facts sufficient to show that the “alleged misrepresentations are ‘likely to deceive’ reasonable 14 consumers.” Broomfield v. Craft Brew All., Inc., No. 17-cv-01027-BLF, 2017 WL 3838453, at *5 15 (N.D. Cal. Sept. 1, 2017), on reconsideration in part on other grounds, No. 17-cv-01027-BLF, 16 2017 WL 5665654 (N.D. Cal. Nov. 27, 2017), (quoting Freeman v. Time, Inc., 68 F.3d 285, 289 17 (9th Cir. 1995)). “Courts have recognized that the deceptive nature of a business practice . . . is 18 usually a question of fact that is inappropriate for . . . a motion to dismiss.” Id. However, 19 “[c]ourts granting motions to dismiss under the reasonable consumer test are upheld in ‘rare 20 situations.’” Id. at 5 (quoting Williams, 552 F.3d at 938). 21 Other courts, including in this district, have found representations and labels similar to 22 those at issue here sufficient to establish that the “[p]laintiff[] plausibly allege that [the] 23 [d]efendant falsely or misleadingly represented that its products were natural or plant-derived, that 24 a reasonable consumer would rely on those representations in purchasing [d]efendant’s products, 25 and that a reasonable consumer would understand those representations to mean that the products 26 did not contain unnatural or synthetic ingredients.” Maisel v. S.C. Johnson & Son, Inc., No. 21- 27 cv-00413-TSH, 2021 WL 1788397, at *9 (N.D. Cal. May 5, 2021) (collecting cases); see, e.g., 1 Cal. July 19, 2019) (“household cleaning and personal care products” labeled “natural, plant- 2 derived, or non-toxic; accomplish their purposes naturally; contain no harmful ingredients; or are 3 made with plant-derived cleaning agents or 100% plant-derived cleaning agents” (quotation marks 4 and citation omitted)); Kutza v. Williams-Sonoma, Inc., No. 18-cv-03534-RS, 2018 WL 5886611, 5 at *1 (N.D. Cal. Nov. 9, 2018) (“lotions, hand soaps, dish soaps, room sprays, countertop sprays, 6 and all-purpose cleaners” that “state[d] [they] are naturally derived” and were marketed as 7 “natural, naturally derived, or plant-based”). Maisel in particular is instructive because the 8 allegations there are substantially similar to those of Moore: (1) the products’ labels stated “Plant- 9 based ingredients,” “With plant-based ingredients,” “Plant-based & mineral ingredients,” or “With 10 plant-based and mineral ingredients”; and (2) “[t]he products . . . display[ed] images of plants, 11 including flowers and leaves, and use[d] green coloring.” 2021 WL 1788397, at *9; see also ECF 12 No. 8 ¶ 15 (alleging that the Products were labeled as “made with plants,” “plant-based,” “plant- 13 based moisturizers,” “made with plants,” “made with plant extracts,” and/or “made with plant- 14 based extracts” and display[] images of plants, including flowers [] [and] green leaves[,] . . . a 15 green background[,] and/or . . . green color font”). As the Maisel court explained, the weight of 16 authority finds that Moore’s understanding of the Plant-Based Representations is plausible.4 2021 17 WL 1788397, at *9–10 (citing and analyzing Przybylak, 2019 WL 8060076; Kutza, 2018 WL 18 5886611; Gregorio, 2018 WL 732673; Shank, 2018 WL 510169). The court reasoned that 19 “although the products do not make any objective representations about the amount of plant-based 20 and mineral ingredients, it is plausible that a reasonable consumer could be deceived into thinking 21 the products only contain ingredients that come from plants and/or from plants and minerals.” Id. 22 at *10. The Court finds the reasoning in Maisel persuasive, and therefore, concludes that Moore 23 4 EO contends that this caselaw is distinguishable because “nearly all th[e] cases involved products 24 with more aggressive marketing claims than those on [EO’s] Products.” ECF No. 19 at 7. As 25 explained above, the Court finds the claims in Maisel to be substantially similar to the Plant-Based Representations, not more “aggressive.” And those cases that did involve claims that were more 26 aggressive also addressed claims that were substantially similar or identical to the Plant-Based Representations. See, e.g., Przybylak, 2019 WL 8060076, at *1; Kutza, 2018 WL 5886611, at *1; 27 Gregorio v. Clorox Co., No. 17-cv-03824-PJH, 2018 WL 732673, at *1 (N.D. Cal. Feb. 6, 2018); 1 plausibly alleged that a reasonable consumer would be misled by the Product’s labels to believe 2 that they “only contain ingredients that come from plants and/or from plants and minerals and that 3 are not subject to chemical modification or processing, which materially alters the ingredients’ 4 original plant-based composition.” ECF No. 8 ¶ 7. 5 EO’s arguments to the contrary are unavailing. First, EO urges the Court to “reject 6 [Moore’s] idiosyncratic definition of ‘plant-based.’” ECF No. 9 at 14–15. However, the Court 7 has already found it plausible for a reasonable consumer to interpret the Plant-Based 8 Representations as meaning that the Products only contain ingredients that come from plants and 9 minerals. EO at most presents another plausible interpretation, which merely creates a factual 10 dispute that the Court cannot resolve at the motion to dismiss stage. See Jones, 912 F. Supp. 2d at 11 897 n.2. 12 Second, EO argues that because “there is no deceptive act to be dispelled and “the Product 13 labels clearly indicate the Products . . . do not contain exclusively plant ingredients, it is not 14 plausible that a reasonable consumer would be deceived by the product’s packaging.” ECF No. 19 15 at 10–11. The Court has already concluded, however, that Moore has plausibly pleaded that the 16 Plant-Based Representations are misleading, and “the reasonable consumer is not expected to pick 17 up the product and examine the fine print on the ingredient list.” Tucker v. Post Consumer 18 Brands, LLC, No. 19-cv-03993-YGR, 2020 WL 1929368, at *5 (N.D. Cal. Apr. 21, 2020); see 19 also Williams, 552 F. 3d at 939–40 (“We do not think that the FDA requires an ingredient list so 20 that manufacturers can mislead consumers and then rely on the ingredient list to correct those 21 misinterpretations and provide a shield for liability for the deception.”). 22 Accordingly, the Court denies EO’s motion to dismiss on this ground. 23 D. Breach of Warranty 24 The parties dispute whether Plaintiffs can bring a breach of express warranty claim based 25 on the Products’ labels. ECF Nos. 9 at 28–29, 18 at 30–32, 19 at 14. EO also argues because 26 Plaintiff’s express warranty claim is “based on the same theory as his UCL, FAL[,] and CLRA 27 1 claims,” the claim fails for the same reasons that his consumer protection claims fail.5 ECF No. 2 19 at 14. 3 This Court and others in the Ninth Circuit have previously found that plaintiffs have stated 4 common law breach of express warranty claims based on allegedly misleading food labeling. See, 5 e.g., Brenner v. Procter & Gamble Co., No. SACV 16-1093-JLS (JCG), 2016 WL 8192946, at *1, 6 *8 (C.D. Cal. Oct. 20, 2016) (“Natural Clean” baby wipes); Musgrave v. ICC/Marie Callender’s 7 Gourmet Prod. Div., No. 14-cv-02006-JST, 2015 WL 510919, at *10 (N.D. Cal. Feb. 5, 2015) 8 (“[A]ll natural” bread and muffin mixes); Brown v. Hain Celestial Grp., Inc., 11-cv-03082-LB, 9 2012 WL 6697670, at *16 (N.D. Cal. Dec. 22, 2012) (“All Natural & Organic” cosmetic 10 products); Vicuna v. Alexia Foods, Inc., 11-cv-6119-PJH, 2012 WL 1497507, at *2 (N.D. Cal. 11 Apr. 27, 2012) (“All natural” potato products). 12 The case that EO relies on is distinguishable. See Broomfield, 2017 WL 3838453, at *10. 13 In Broomfield, the plaintiffs argued that a “mailing address [for a brewery] in Kona, Hawaii, [a] 14 map of Hawaii, and [an] invitation to visit the brewery” constituted an “express[] warrant[y] that 15 the beer [was] brewed in Hawaii.” Id. The court concluded that these representations “d[id] not 16 amount to an ‘affirmation of fact or promise’ that the beer [was] made in Hawaii,” and noted that 17 the representations were “each true statements that identify a real brewery in Kona, Hawaii.” Id. 18 In contrast, Moore’s allegations are based on the express statements that the Products were 19 “[m]ade with plants,” “plant-based,” “made with plant extracts,” and/or “made with plant-based 20 extracts.” ECF No. 8 ¶ 6. Additionally, as previously discussed, the Court has found that Plaintiff 21 adequately alleged that a reasonable consumer would be misled by these representations. These 22 provide a possible basis for an unjust enrichment claim. Therefore, it is possible that Plaintiff 23 could state a common law claim for breach of express warranty. 24 However, Moore fails to allege under which state’s law he is bringing the breach of 25 express warranty cause of action. That failure is grounds for dismissal. In re Nexus 6P Prods. 26

27 5 EO also argues that Plaintiff fails to state a claim for breach of implied warranty. However, 1 Liab. Litig., 293 F. Supp. 3d 888, 933 (N.D. Cal. 2018) (“[D]ue to variances among state laws, 2 failure to allege which state law governs a common law claim is grounds for dismissal.” (quoting 3 Romero v. Flowers Bakeries, LLC, No. 14-cv-05189-BLF, 2016 WL 469370, at *12 (N.D. Cal. 4 Feb. 8, 2016)). At the risk of stating the obvious, the Court cannot assess the adequacy of a claim 5 without knowing which jurisdiction’s law to apply. Dollar Props., Inc. v. Myers Fin. Grp., Inc., 6 719 F. Supp. 734, 735 (N.D. Ill . 1989) (“To determine whether the defendants are entitled to 7 judgment based upon the pleadings, this court must first determine which state’s law applies to 8 this case.”). Thus, the Court must dismiss Plaintiffs breach of express warranty claims, but will 9 grant leave to amend because it appears “that the pleading could . . . be cured by the allegation of 10 other facts.” OSU Student All. v. Ray, 699 F.3d 1053, 1079 (9th Cir. 2012) cert. denied, 134 S. Ct. 11 70 (2013) (quoting Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc)). Any breach of 12 express warranty claims in an amended complaint shall identify the state under whose law the 13 claim is brought, and each state law claim (if there is more than one) shall be pleaded as a separate 14 count. In re Natera Prenatal Testing Litig., --- F.Supp.3d ----, No. 22-cv-00985-JST, 2023 WL 15 3370737, at *8 n. 10 (N.D. Cal. Mar. 28, 2023). 16 E. Unjust Enrichment 17 The parties dispute whether California recognizes unjust enrichment as an independent 18 cause of action. ECF Nos. 9 at 30, 18 at 32, 19 at 13-14. Additionally, EO argues that the unjust 19 enrichment claim is “duplicative to [sic] Plaintiff’s CLRA, FAL, and UCL claims, and therefore 20 fails for the same reasons as those other claims.” ECF No. 19 at 14. 21 First, as this Court has previously explained, “both the Ninth Circuit and the California 22 Supreme Court construe California law to permit a cause of action for unjust enrichment.” Russell 23 v. Walmart, Inc., --- F.Supp.3d ----, No. 22-cv-02813-JST, 2023 WL 4341460, at *2 (N.D. Cal. 24 July 5, 2023). The Court declines to follow the California Court of Appeal decision cited by EO 25 that holds otherwise. De Havilland v. FX Networks, LLC, 21 Cal. App. 5th 845 (2018) (holding 26 “[u]njust enrichment is not a cause of action”). The De Havilland court relied upon Hill v. Roll 27 Internat. Corp., 195 Cal. App. 4th 1295 (2011) in support of its holding that unjust enrichment 1 decision, Hartford Casualty Ins. Co. v. J.R. Marketing, L.L.C., which held that none of the 2 “numerous objections to the proposition that a direct action . . . for unjust enrichment can lie . . . 3 compels the conclusion that such a claim is absolutely foreclosed,” 61 Cal. 4th 988, 1000 (2015). 4 Thus, Moore may bring standalone claims for unjust enrichment under California law. 5 Second, as the Court previously discussed, Moore has sufficiently pleaded claims under 6 California’s consumer protection statutes. These provide a potential basis for an unjust 7 enrichment claim. 8 However, Moore’s unjust enrichment claim suffers from the same deficiency as his express 9 warranty claim: it does not specify which state law it is being brought under, and must therefore 10 be dismissed. In re Natera Prenatal Testing Litig., 2023 WL 3370737, at *8 n. 10. The Court 11 grants leave to amend the claim because it appears “that the pleading could . . . be cured by the 12 allegation of other facts.” OSU Student All., 699 F.3d at 1079 (quoting Lopez, 203 F.3d at 1130). 13 Any unjust enrichment claims in an amended complaint shall identify the state under whose law 14 the claim is brought, and each state law claim (if there is more than one) shall be pleaded as a 15 separate count. In re Natera Prenatal Testing Litig., 2023 WL 3370737, at *8 n. 10. 16 F. Equitable Relief 17 EO argues that the Court must dismiss “Plaintiff’s claims for equitable relief . . . because 18 they do not (and cannot) sufficiently allege the requisite inadequacy of legal remedies.” ECF No. 19 9 at 30. Moore argues that his allegation that he “has no adequate remedy at law” is sufficient at 20 this stage. ECF No. 18 at 32. 21 The Court agrees with Moore. He pleads the absence of an adequate remedy at law, ECF 22 No. 8 ¶ 151, which is all that is required under Sonner v. Premier Nutrition Corp., 971 F.3d 834 23 (9th Cir. 2020) at the pleadings stage. In re Natera Prenatal Testing Litig., 2023 WL 3370737, at 24 *10 (collecting cases and noting that the majority of courts in this district require only that 25 Plaintiffs plead that they lack an adequate remedy at law at the pleadings stage). Accordingly, the 26 Court concludes that Moore has sufficiently pleaded his claims for equitable relief and denies 27 EO’s motion to dismiss on this basis. 1 G. Punitive Damages 2 EO contends that Moore’s “allegations . . . do not meet the heightened pleading 3 || requirement for punitive damages.” ECF No. 9 at 31. Because Moore adequately pleads 4 || fraudulent conduct, however, “it is not appropriate to dismiss claims for punitive damages at this 5 time.” Flodin v. Cent. Garden & Pet Co., No. 21-cv-01631-JST, 2022 WL 20299955, at *3 (N.D. 6 || Cal. Jan. 20, 2022) (quoting Takano v. Procter & Gamble Co., No. 2:17-cv-00385-TLN-AC, 2018 7 WL 5304817, at *14 (E.D. Cal. Oct. 24, 2018)). Therefore, the Court denies EO’s motion to 8 || dismiss Moore’s punitive damages claims. 9 CONCLUSION 10 For the foregoing reasons, EO Products’ motion to dismiss is granted with leave to amend 11 with respect to Moore’s claims for breach of express warranty and unjust enrichment. In all other 12 respects, EO’s motion to dismiss is denied. 13 Leave to amend is granted solely to cure the deficiencies identified above. Any amended 14 || complaint shall be filed within 21 days of this order. 3 15 IT IS SO ORDERED. a 16 Dated: September 29, 2023 . .

M | JON S. mo 18 nited States District Judge 19 20 21 22 23 24 25 26 27 28