Moreno v. Vi-Jon, Inc.

Opinion

1 2

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANTHONY MORENO, individually and Case No.: 20cv1446 JM (BGS) on behalf of others similarly situated, 12 Plaintiff, ORDER ON MOTION TO DISMISS 13 FOURTH AMENDED COMPLAINT v. 14 VI-JON, LLC, 15

16 Defendant. 17 18 19 Presently before the court is Defendant Vi-Jon, LLC’s Motion to Dismiss Plaintiff 20 Anthony Moreno’s Fourth Amended Complaint. (Doc. No. 54). Pursuant to Local Rule 21 7.1(d)(1), the court finds the matter presented appropriate for resolution without oral 22 argument. Having considered the Parties’ arguments, the evidence, and the law, the court 23 rules as follows. 25 I. Factual Background 26 The facts as alleged in this case were set forth in the court’s prior March 3, 2021 27 Order on Defendant’s Motion to Dismiss First Amended Complaint (“FAC”) 28 (Doc. No. 21), December 6, 2021 Order on Defendant’s Motion to Dismiss Plaintiff’s 1 Second Amended Complaint (“SAC”) (Doc. No. 33), and March 20, 2023 Order on 2 Defendant’s Motion to Dismiss Plaintiff’s Third Amended Complaint (“TAC”) 3 (Doc. No. 52). For the sake of completeness, the court repeats the facts below and 4 supplements its summary with relevant additional allegations set forth in Plaintiff’s 5 Fourth Amended Complaint. 6 The instant dispute is a putative class action arising from Plaintiff’s allegations 7 Defendant’s hand sanitizers (the “Products”) contain labels falsely and misleadingly 8 representing their ability to kill germs. 9 Between November 2019 through February 2020, Plaintiff purchased one or more 10 of each of Defendant’s Products, sold under either a store brand (e.g., CVS, equate, 11 Walgreen, etc.) or Defendant’s own brand (Germ-x). Fourth Amended Complaint at ⁋⁋ 12 26, 164, 186–190. Plaintiff alleges each of Defendant’s Products contain a front display 13 panel representing that the Products “kill[] 99.99% of germs” or “kill[] more than 99.99% 14 of germs.” (Doc. No. 53 at ⁋ 4). An asterisk on the front panel “leads to” an asterisk on a 15 back panel which states that the Products are “[e]ffective at eliminating more than 16 99.99% of many common harmful germs and bacteria in as little as 15 seconds” or 17 “[e]ffective at eliminating 99.99% of many common and harmful germs and bacteria in 18 as little as 15 seconds.” Id. at ⁋⁋ 6–7. Plaintiff alleges “reasonable consumers” of 19 Defendants’ Products understand these representations to mean that the Products “kill all 20 or almost all of the germs on their hands,” or more specifically, that the Products 21 “completely kills 99.99% of the germs on their hands.” Id. at ⁋ 12. 22 Contrary to these representations, however, Plaintiff contends Defendant’s 23 Products do not “kill all or almost all germs on hands.” Id. at ⁋ 13. Instead, Plaintiff 24 alleges that “under optimal laboratory conditions,” Defendant’s Products “kill only 25 approximately 47% of the 1227 organisms that are pathogenic to humans and can be 26 transmitted by hands” and “fail to kill approximately 40% of the germs that are most 27 commonly found on hands, which cause illnesses in the United States population.” Id. at 28 ⁋⁋ 15, 17. As examples, Plaintiff points to the Products’ alleged ineffectiveness against 1 adenovirus, coxsackievirus, enteroviruses, rhinoviruses, norovirus, rotavirus, 2 cryptosporidium and C. difficile. Id. at ⁋⁋ 18–19, 71, 73–125. Plaintiff further contends 3 Defendant fails to do any “real world testing” on the effectiveness of these Products on 4 germs commonly found on hands in a real world setting to substantiate its 5 representations. Id. at ⁋⁋ 2, 20–25. Specifically, Plaintiff alleges Defendant only tests its 6 Products “against approximately 2% of the approximately 1227 organisms that are 7 pathogenic to humans and can be transmitted by hands.” Id. at ⁋ 20. 8 As a consequence of these alleged misrepresentations, Plaintiff alleges that he and 9 other potential class members were misled into purchasing products they would not have 10 otherwise purchased or would have purchased on different terms. Id. at ⁋ 196. 11 II. Procedural Background 12 On July 27, 2020, Plaintiff filed the instant putative class action asserting causes of 13 action for: (1) violation of California’s Unfair Competition Law (“UCL”), CAL. BUS. & 14 PROF. CODE § 17200, et seq.; (2) violation of California’s False Advertising Law 15 (“FAL”), CAL. BUS. & PROF. CODE § 17500, et seq.; (3) violation of California’s 16 Consumer Legal Remedies Act (“CLRA”), CAL. CIV. CODE § 1750, et seq.; (4) breach of 17 express warranty; and (5) quasi-contract. (Doc. No. 1). 18 On September 14, 2020, Plaintiff filed a FAC asserting the same five causes of 19 action and an additional cause of action for breach of implied warranty. (Doc. No. 13). 20 On March 3, 2021, this court granted Defendant’s Motion to Dismiss Plaintiff’s FAC 21 with leave to amend. (Doc. No. 21). 22 On March 24, 2021, Plaintiff filed a SAC, which among other things, removed 23 Plaintiff’s sixth cause of action for breach of implied warranty. (Doc. No. 22). On 24 December 16, 2021, the court granted Defendant’s Motion to Dismiss Plaintiff’s SAC. 25 (Doc. No. 33). Specifically, the court granted Defendant’s Motion to Dismiss under Rule 26 12(b)(1) for lack of Article III standing, finding Plaintiff had “only pled a speculative, 27 conjectural and hypothetical injury.” Id. at 11. The court further granted Defendant’s 28 Motion to Dismiss under Rule 12(b)(6), finding that a reasonable consumer would not 1 have interpreted the representations found in Defendant’s Products to mean these 2 Products would be effective against the pathogens identified in Plaintiff’s SAC, which 3 included a sexually transmitted disease, food-borne illnesses, pathogens found in cat litter 4 and undercooked food, and bacteria found in the environment, foods and the intestines of 5 people and animals. Id. at 14–16. As this was the second time Plaintiff had been given 6 the opportunity to amend, the Clerk of Court was instructed to close the case. Id. at 19. 7 Plaintiff subsequently appealed. (Doc. No. 35). In an unpublished memorandum 8 disposition, the Ninth Circuit reversed this court’s order granting dismissal pursuant to 9 Rule 12(b)(1), vacated this court’s 12(b)(6) ruling, and directed that Plaintiff be granted 10 leave to amend. (Doc. No. 42). Of relevance, the Ninth Circuit stated: 11 At oral argument, responses to the panel’s questions indicated 12 that Moreno’s complaint could be amended such that it would 13 potentially survive 12(b)(6) dismissal. For example, the parties disagree about whether the complaint adequately alleges falsity 14 as to the hand sanitizers’ ability to kill only germs commonly 15 found on hands, as opposed to all germs. The district court read the complaint as referring to all germs, but Moreno contends 16 the complaint may be amended to refer to germs commonly 17 found on hands. Both parties agreed at oral argument that the 12(b)(6) analysis would be different under such allegations. 18 19 Id. at 4. 20 On January 10, 2023, Plaintiff filed a TAC. (Doc. No. 43). On March 20, 2023, 21 the court granted Defendant’s Motion to Dismiss Plaintiff’s TAC, finding Plaintiff had 22 not complied with the Ninth Circuit’s mandate to file a pleading specifically containing 23 allegations regarding the ability of Defendant’s Products to kill 99.99% of germs 24 commonly found on hands. (Doc. No. 52 at 6). 25 On April 10, 2023, Plaintiff filed a Fourth Amended Complaint. (Doc. No. 53). 26 On April 24, 2023, Defendant filed a Motion to Dismiss. (Doc. No. 54). On May 16, 27 2023, Plaintiff filed an Opposition. (Doc. No. 59). On May 23, 2023, Defendant filed a 28 Reply. (Doc. No. 60). Defendant’s Motion is now fully briefed and ripe for resolution. 2 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to 3 dismiss on the grounds that a complaint “fail[s] to state a claim upon which relief can be 4 granted[.]” Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Federal Rule of Civil 5 Procedure 12(b)(6) “tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 6 729, 732 (9th Cir. 2001). 7 To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain 8 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 9 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 10 550 U.S. 544, 570 (2007)). The court “accept[s] factual allegations in the complaint as 11 true and construe[s] the pleadings in the light most favorable to the nonmoving party.” 12 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). On 13 the other hand, the court is “not bound to accept as true a legal conclusion couched as a 14 factual allegation.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). Nor is the 15 court “required to accept as true allegations that contradict exhibits attached to the 16 [c]omplaint or matters properly subject to judicial notice, or allegations that are merely 17 conclusory, unwarranted deductions of fact, or unreasonable inferences.” Daniels-Hall v. 18 Nat'l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). “In sum, for a complaint to survive 19 a motion to dismiss, the non-conclusory factual content, and reasonable inferences from 20 that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” 21 Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (internal quotation marks 22 omitted). 23 Pleading facts “‘merely consistent with’ a defendant’s liability” fall short of a 24 plausible entitlement to relief. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 25 557). This plausibility review is a “context-specific task that requires the reviewing court 26 to draw on its judicial experience and common sense.” Id. at 679. “[W]here the well- 27 pleaded facts do not permit the court to infer more than the mere possibility of 28 1 misconduct, the complaint has alleged—but it has not shown—that the pleader is entitled 2 to relief.” Id. (quotation marks omitted). 4 In its Motion to Dismiss, Defendant contends Plaintiff’s Fourth Amended 5 Complaint should be dismissed because: (1) Plaintiff’s CLRA, FAL, and UCL claims do 6 not pass the reasonable consumer test; (2) Plaintiff’s allegations do not meet the 7 heightened pleading standard for claims rooted in fraud; (3) Plaintiff’s FAL claim fails 8 because Plaintiff failed to allege facts supporting his claim the Products were advertised 9 as effective at eliminating the germs referenced in Plaintiff’s Fourth Amended 10 Complaint; (4) Plaintiff failed to allege any conduct that would provide a theory of 11 liability under either the UCL’s unlawful or unfairness prongs; and (5) Plaintiff failed to 12 adequately allege deceptive conduct or reasonable reliance to support a claim for breach 13 of express warranty. (Doc. No. 54-1 at 12–27). Defendant further contends Plaintiff’s 14 claims for equitable relief should be stricken or dismissed with prejudice. Id. at 27–29. 15 The court will address each of Plaintiff’s causes of action, in turn, below. 16 I. Opinions of Dr. Elizabeth Fortunato 17 Before adjudicating Defendant’s Motion to Dismiss on the merits, the court first 18 addresses Defendant’s request that the court disregard all allegations in Plaintiff’s Fourth 19 Amended Complaint attributed to Dr. Elizabeth Fortunato. (Doc. No. 54-1 at 18–21). 20 In his Fourth Amended Complaint, Plaintiff attributes a number of allegations to 21 Dr. Fortunato’s “expert scientific analysis,” specifically Plaintiff’s claims that: (1) “there 22 are approximately 1227 organisms that are pathogenic to humans that can be transmitted 23 by hands”; (2) “under optimal laboratory conditions, [Defendant’s] Products kill only 24 approximately 47% of the 1227 organisms that are pathogenic to humans and can be 25 transmitted by hands”; and (3) “the Products fail to kill approximately 40% of the germs 26 that are most commonly found on hands, which causes illnesses in the United States 27 population.” (Doc. No. 53 at ⁋⁋ 14–15, 17). 28 /// 1 Defendant contends the court should disregard all of Plaintiff’s allegations that are 2 attributed to Dr. Fortunato because they are not supported by or misrepresent the opinions 3 Dr. Fortunato submitted in the Macormic v. Vi-Jon, LLC, Case No. 4:20-cv-1267 HEA 4 (E.D. Mo.) and Loughlin v. Vi-Jon, LLC, Case No. 1:20-cv-11555 MLW (D. Mass.) 5 cases—as evidenced by various expert reports, deposition transcripts, and briefing. 6 (Doc. Nos. 54-1 at 18–21; 60 at 6–10). In response, Plaintiff contends these allegations 7 are well-supported by Dr. Fortunato’s expert analysis, as evidenced by a declaration 8 Dr. Fortunato submitted in the Loughlin matter. (Doc. No. 59 at 12–14, 19). 9 To resolve the question of whether Dr. Fortunato’s “expert analysis” properly 10 supports Plaintiff’s allegations would, however, force this court “to confront a myriad of 11 complex evidentiary issues not generally capable of resolution at the pleading stage.” 12 DeMarco v. Depotech Corp., 149 F. Supp. 2d 1212, 1221 (S.D. Cal. 2001). This point is 13 well illustrated in this case, where Defendant is effectively requesting that the court take 14 judicial notice of numerous pieces of evidence outside of the four corners of Plaintiff’s 15 pleading to determine: (1) whether Plaintiff correctly characterized Dr. Fortunato’s 16 opinions; (2) whether those allegations were properly supported by evidence; and even 17 (3) whether Dr. Fortunato was qualified to render such opinions. (See Doc. Nos. 54-1 at 18 18–21; 59 at 12–14, 19; 60 at 6–10). 19 In order to do so, the court would be ignoring the basic differences between a 20 motion to dismiss and a motion for summary judgment or a Daubert motion. At the 21 motion to dismiss stage, the court’s role is not to assess whether Plaintiff’s allegations are 22 truthful or supported by evidence. Although Defendant is allowed to challenge whether 23 Plaintiff’s allegations are adequately supported by the evidence, such a challenge is not 24 properly before the court at this stage of the proceedings. See United States v. LSL 25 Biotechnologies, 379 F.3d 672, 699 (9th Cir. 2004) (“[T]he nature of Rule 12(b)(6) does 26 not allow courts to reach matters outside the pleading without following the summary 27 judgment procedures of Rule 56.”) (internal quotation marks omitted); see Thaut v. 28 Hsieh, No. 2:15-cv-0590-JAM-KJN (PS), 2016 U.S. Dist. LEXIS 70781, at *30 (E.D. 1 Cal. May 27, 2016) (finding that the court could not consider the contents of an expert 2 declaration “in ruling on a motion to dismiss for failure to state a claim without 3 converting the motion into one for summary judgment.”); In re Silicon Storage Tech., 4 Inc., Sec. Litig., No. C-05-0295 PJH, 2007 U.S. Dist. LEXIS 21953, at *90 n.10 (N.D. 5 Cal. Mar. 9, 2007) (“[I]t is well-established that courts should not consider an expert or 6 other affidavit submitted in support of a Rule 12(b)(6) motion to dismiss, unless the 7 parties have agreed that the motion will be treated as a motion for summary judgment.”). 8 As neither Party has requested that the court transform Defendant’s current motion to 9 dismiss into one for summary judgment, the court declines to do so here.1 10 Regardless, even assuming the court were to consider the allegations attributed to 11 Dr. Fortunato, it would still not relieve Plaintiff of his burden to advance a plausible 12 claim for relief. As set forth below, the inclusion of Dr. Fortunato’s “expert analysis” in 13 Plaintiff’s Fourth Amended Complaint has minimal bearing on the court’s decision. 14 II. Plaintiff’s Consumer Protection Claims 15 Defendant moves to dismiss Plaintiff’s Consumer Protection Claims for the fifth 16 time, contending that Plaintiff has still not sufficiently pled a plausible claim for relief 17 under the reasonable consumer standard of the CLRA, FAL and UCL. (Doc. Nos. 10; 18 15; 24; 44; 54-1 at 12–23). In response, Plaintiff contends that Plaintiff’s Fourth 19 Amended Complaint sufficiently addresses the pleading inadequacies previously 20 identified by this court. (Doc. No. 59 at 15–27). 21 A. Legal Standard 22 Before addressing the merits of Defendant’s motion to dismiss Plaintiff’s 23 consumer protection claims, the court briefly reviews the legal standards at issue. The 24 CLRA, FAL, and UCL are California’s consumer protection statutes. The CLRA 25

26 27 1 Indeed, Defendant explicitly states in its briefing that it is not Defendant’s intention to convert its motion to dismiss into a summary judgment or Daubert motion. (Doc. No. 28 1 prohibits “unfair methods of competition” or “unfair or deceptive acts or practices . . . 2 undertaken by any person in a transaction intended to result or which results in the sale or 3 lease of goods or services to any customer,” CAL. CIV. CODE § 1770(a), the UCL 4 prohibits any “unlawful, unfair or fraudulent business act or practice” and the FAL 5 prohibits any “unfair, deceptive, untrue or misleading advertising,” CAL. BUS. & PROF. 6 CODE §§ 17200, 17500. “Courts often analyze these statutes together because they share 7 similar attributes.” In re Sony Gaming Networks & Customer Data Sec. Breach Litig., 8 996 F. Supp. 2d 942, 985 (S.D. Cal. 2014). 9 Claims under the CLRA, FAL and UCL are governed by the “reasonable consumer 10 test.” Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008). To satisfy this 11 test, a plaintiff “must show that members of the public are likely to be deceived.” Ebner 12 v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016) (internal quotation marks omitted). 13 “This is not a negligible burden.” Moore v. Trader Joe’s Co., 4 F.4th 874, 882 (9th Cir. 14 2021). To meet this standard, a plaintiff must demonstrate: 15 more than a mere possibility that [a defendant]’s label might 16 conceivably be misunderstood by some few consumers viewing it in an unreasonable manner. Rather, the reasonable 17 consumer standard requires a probability that a significant 18 portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be 19 misled. 20 21 Ebner, 838 F.3d at 965 (internal quotation marks and citation omitted). “The touchstone 22 under the ‘reasonable consumer’ test is whether the product labeling and ads promoting 23 the products have a meaningful capacity to deceive consumers.” McGinity v. P&G, No. 24 22-15080, 2023 U.S. App. LEXIS 14436, at *8 (9th Cir. June 9, 2023).2 25

26 27 2 The court had already reviewed the McGinty decision prior to Defendant filing its Motion for Leave to File Notice of Supplememental Authority. (Doc. No. 62). For these 28 1 Whether a reasonable consumer would likely be deceived by a product label is 2 generally a question of fact not amenable to determination on a motion to dismiss. See 3 Williams, 552 F.3d at 938; see also Linear Tech. Corp. v. Applied Materials, Inc., 152 4 Cal. App. 4th 115, 134–35 (2007) (“Whether a practice is deceptive, fraudulent, or unfair 5 is generally a question of fact which requires consideration and weighing of evidence 6 from both sides and which usually cannot be made on demurrer.”) (internal quotation 7 marks omitted). “‘However, in certain instances, a court can properly make this 8 determination and resolve such claims based on its review of the product packaging.’” 9 Brown v. Starbucks Corp., No. 18cv2286 JM (WVG), 2019 U.S. Dist. LEXIS 33211, at 10 *6 (S.D. Cal. Mar. 1, 2019) (quoting Pelayo v. Nestle USA, Inc., 989 F. Supp. 2d 973, 11 978 (C.D. Cal. 2013)). “[W]here a Court can conclude as a matter of law that members 12 of the public are not likely to be deceived by the product packaging, dismissal is 13 appropriate.” Pelayo, 989 F. Supp. 2d at 978 (collecting cases). 14 B. Analysis 15 Here, the court agrees with Defendant that dismissal of Plaintiff’s CLRA, FAL and 16 UCL claims continues to be appropriate for the reasons outlined below. 17 1. Plaintiff’s Fourth Amended Complaint Fails to Satisfy the Ninth 18 Circuit’s Mandate 19 First, despite the court’s March 20, 2023 Order directing Plaintiff to comply with 20 the Ninth Circuit’s mandate, Plaintiff’s Complaint still fails to contain any allegations a 21 reasonable consumer would be misled because Defendant’s Products fail to kill 99.99% 22 of germs commonly found on hands. Instead, Plaintiff continues to allege a reasonable 23 consumer would interpret the labels on Defendant’s Products to mean that the Products 24 “completely kills 99.99% of the germs on their hands” with germs defined as “things that 25 can make [individuals] sick.” (Doc. No. 53at ⁋ 12) (emphasis added). Plaintiff then 26 alleges the labels on Defendant’s Products are, therefore, misleading because the 27 Products “do not . . . kill all or almost all germs on hands.” Id. at ⁋ 13. This contradicts 28 Plaintiff’s own representations to the Ninth Circuit that his complaint could be amended 1 “to refer to germs commonly found on hands” (Doc. No. 42 at 4) and ignores the critical 2 limitation of the court’s prior decisions that “common sense and logic dictate that a hand 3 sanitizer product will eliminate the germs and bacteria commonly found on hands” (Doc. 4 Nos. 21 at 14; 33 at 15; 52 at 6). 5 It is not enough that Plaintiff has made an attempt at amending his complaint to 6 sporadically include allegations Defendant’s Products do not kill 99.99% of germs 7 commonly found on hands with citations to extrinsic evidence, including “expert 8 analysis.” Even were the court to take this expert analysis into consideration, there is a 9 clear distinction between Plaintiff alleging a reasonable consumer would believe 10 Defendant’s Products kill 99.99% of all or almost all germs in existence transmissible by 11 hand versus 99.99% of germs commonly found on hands. The same distinction exists 12 between Plaintiff alleging the labels on Defendant’s Products are false and misleading 13 because the Products do not kill 99.99% of all or almost all germs in existence 14 transmissible by hand versus that the Products do not kill 99.99% of germs commonly 15 found on hands. 16 Here, Plaintiff unequivocally alleges the former of these two theories. 17 Specifically, Plaintiff alleges that: (1) a reasonable consumer would expect Defendant’s 18 Products to kill 99.99% of germs “in general and without limitation” and (2) that the 19 Product labels are false and misleading because the Products fail to do so. (Doc. No. 53 20 at ⁋⁋ 12–13; Doc. No. 59 at 26). In Plaintiff’s own words, “[u]nder the facts pled . . . the 21 commonality of germs that are not killed by the Products has no impact on whether 22 consumers are misled by the Representations.” (Doc. No. 59 at 26) (emphasis added). 23 Indeed, nowhere present in Plaintiff’s Complaint are there any non-conclusory 24 factual allegations Defendant’s Products do not kill 99.99% of germs commonly found 25 on hands. Instead, all of Plaintiff’s allegations are qualified in some manner that makes 26 clear Plaintiff is still referring to Defendant’s Products’ inability to kill all germs. For 27 example, Plaintiff alleges that “as described below, [Defendant’s] Products do not kill 28 99.99% of germs commonly found on hands.” (Doc. No. 53 at ¶ 46) (emphasis added). 1 Although at first glance, this allegation appears consistent with the Ninth Circuit’s 2 mandate, Plaintiff immediately follows this statement by alleging that: (1) “there are 3 approximately 1227 organisms that can cause disease in hands and are capable of 4 transmission by hands”; and (2) “under optimal laboratory conditions, [Defendant’s] 5 Products kill only approximately 47% of the 1227 organisms that can be transmitted by 6 hands and are pathogenic to humans.” Id. at ¶¶ 47–48. Conspicuously absent is any 7 allegation that these 1227 organisms are actually commonly found on hands. Instead, it is 8 clear from these subsequent, qualifying statements that Plaintiff is still referring to the 9 universe of all germs that can be transmitted by hand. 10 Plaintiff’s allegations as to the specific viruses, protozoan, and spores that 11 Defendant’s Products purportedly do not kill all suffer from the same deficiencies. 12 Plaintiff appears to conclusively assume the diseases/viruses he has identified are 13 “commonly found on hands” and labels them accordingly. However, many of the 14 references that Plaintiff cites directly contradict his allegations. For example, while 15 Plaintiff alleges cryptosporidium is “commonly found on hands” (Doc. No. 53 at ¶ 112), 16 the CDC website Plaintiff cites to in support of this allegation actually states that “water 17 (drinking water and recreational water) is the most common way to spread the parasite.” 18 https://www.cdc.gov/parasites/crypto/index.html (last accessed July 13, 2023). Again, 19 conspicuously missing is any non-conclusory factual allegation that cryptosporidium is 20 commonly found on hands. Instead, cryptosporidium is provided by Plaintiff as just one 21 example in the universe of all germs that Defendant’s products are ineffective against. 22 In short, Plaintiff has, in essence, ignored the Ninth Circuit’s mandate by 23 continuing to allege a reasonable consumer of hand sanitizers would understand the 24 phrase “kill[] 99.99% of germs “to mean all germs in the universe, regardless of whether 25 such germs are commonly found on hands. As demonstrated above, to the extent 26 Plaintiff even alleges Defendant’s Products do not kill 99.99% of germs commonly found 27 on hands, these allegations are immediately diluted in a manner that makes clear Plaintiff 28 is still referring to all germs. This falls well short of the task set forth by the Ninth 1 Circuit based on Plaintiff’s own representations, and is, by itself, grounds to grant 2 Defendant’s Motion to Dismiss. 3 2. Plaintiff’s Fourth Amended Complaint Fails the Reasonable 4 Consumer Test 5 Second, even were the court to set aside the Ninth Circuit’s mandate, the court 6 would still find that Plaintiff has failed to plausibly allege that a reasonable consumer 7 would be misled by the front label on Defendant’s Products to believe the Products kill 8 99.99% of all germs. (Doc. No. 53 at ⁋ 12). 9 Reduced to its base elements, Plaintiff’s theory presupposes a reasonable consumer 10 would rationally believe Defendant’s Products would protect them against 99.99% of the 11 entire universe of all conceivable germs that could be found on the surface of their 12 hands—without limitation as to how they spread and whether they are commonly found 13 on hands. These allegations defy logic. See Vitt v. Apple Comput., No. CV 06-7152-GW 14 (FMOx), 2010 U.S. Dist. LEXIS 150550, at *7 (C.D. Cal. May 21, 2010) (“Because the 15 ‘reasonable consumer’ inquiry is an objective standard, claims may be dismissed as a 16 matter of law where an alleged statement . . . in context, is such that no reasonable 17 consumer could be misled in the manner claimed by the plaintiff.”) (internal quotation 18 marks omitted). 19 As one District Court aptly put it: 20 [H]and sanitizer is called hand sanitizer for a reason. 21 Consumers purchase hand sanitizer, to, well, sanitize their hands. It defies all logic to assume that a reasonable consumer 22 who purchases hand sanitizer will also expect it to offer 23 protection against illnesses most commonly spread by drinking contaminated water, sexual contact, or by taking high doses of 24 antibiotics . . . in a healthcare setting. 25 Piescik v. CVS Pharmacy, Inc., 576 F. Supp. 3d 1125, 1133 (S.D. Fla. 2021). 26 In an attempt to circumvent this common-sense proposition, Plaintiff argues it is 27 improper to “impute specialized knowledge of pathogenic diseases to reasonable 28 consumers” of Defendant’s “low-cost, everyday Products.” (Doc. No. 59 at 26). This 1 argument is unconvincing. It is not necessary for a reasonable consumer to have any 2 specialized knowledge of pathogenic diseases to understand that hand sanitizers are not 3 designed to kill 99.99% of every conceivable variety of germs that could be found on an 4 individual’s hands. See Souter, 2022 U.S. Dist. LEXIS 28386, at *27 (“[A] reasonable 5 consumer would not buy Wet Ones in anticipation of combating a small population of 6 viruses, not well known as diseases transmissible by hand, and not alleged to comprise 7 more than 0.01% of germs.”). 8 The Ninth Circuit’s decision in Moore v. Trader Joe’s Co., 4 F.4th 874 (9th Cir. 9 2021) is instructive on this point, rather than being contradictory, as Plaintiff appears to 10 suggest. In Moore, the Ninth Circuit held a label marketing a store-brand Manuka honey 11 product as “100% New Zealand Manuka Honey” was not likely to deceive a reasonable 12 consumer into believing that the product contained only honey from the Manuka flower. 13 Id. at 883–85. Of particular relevance here, the Ninth Circuit held that “[a]lthough a 14 reasonable consumer might not be an expert in honey production or beekeeping, 15 consumers would generally know that it is impossible to exercise complete control over 16 where bees forage down to each specific flower or plant.” Id. at 883. In the same way, 17 although a reasonable consumer may not be an expert on the spread of pathogenic 18 diseases, consumers generally know that it is impossible for a hand sanitizer to kill 19 99.99% of germs “in general and without limitation.” See id. at 877 (“[N]o reasonable 20 consumer would believe that [defendant] was marketing a product that is impossible to 21 create.”). A reasonable consumer would also not be required to be a pathogenic disease 22 expert to understand that hand sanitizers are not designed as complete substitutes to 23 washing hands with soap as water. As the court already noted in its prior Order, “the 24 importance of handwashing is well known, even amongst school children.” (Doc. No. 21 25 at 13). Contrary to Plaintiff’s arguments, it is not necessary for a reasonable consumer to 26 be an expert in pathogenic diseases to reach the above conclusions; instead, a reasonable 27 consumer need only apply ordinary common sense. 28 1 Plaintiff’s allegations as to how a reasonable consumer would be misled also 2 continues to contradict the packaging of Defendant’s Products when read as a whole. 3 Specifically, a reasonable consumer would also be informed by the information contained 4 on the hand sanitizer’s back label. Plaintiff’s apparent argument that a consumer would 5 ignore the back label is, again, not persuasive. As the Ninth Circuit recently held, a front 6 label “must be unambiguously deceptive for a defendant to be precluded from insisting 7 that the back label be considered together with the front label.” McGinity, 2023 U.S. 8 App. LEXIS 14436, at *10–11 (9th Cir. June 9, 2023). And as the court already noted 9 above, the front label on Defendant’s Products is not deceptive in the manner Plaintiff 10 alleges. 11 Even assuming the front label of Defendant’s Products is ambiguous as to their 12 efficacy, “when, as here, a front label is ambiguous, the ambiguity can be resolved by 13 reference to the back label.” McGinity, 2023 U.S. App. LEXIS 14436, at *12; see Souter, 14 2022 U.S. Dist. LEXIS 28386, at *21 (“At the motion to dismiss stage, qualifying 15 language on packaging, usually on the back label, that clarifies the meaning of the alleged 16 misrepresentation can ‘ameliorate any tendency of the label to mislead, as would violate 17 California's False Advertising Law (FAL), Unfair Competition Law (UCL), and 18 Consumer Legal Remedies Act (CLRA).’”) (quoting Moore, 966 F.3d at 1017). Here, 19 the front labels on Defendant’s Products each contain asterisks leading consumers to a 20 back panel label stating that Defendant’s Products are “[e]ffective at eliminating more 21 than 99.99% of many common harmful germs and bacteria in as little as 15 seconds” or 22 “[e]ffective at eliminating 99.99% of many common and harmful germs and bacteria in 23 as little as 15 seconds.” (Doc. No. 53 at ⁋ 38). As the court already held: 24 Plaintiff cannot simply look to the statement on the front panel, 25 ignore the asterisk, and claim he has been misled. Bobo, 2015 U.S. Dist. LEXIS 187233, 2015 WL 13102417 at *5. This is 26 especially true, where as here, there are no other words, pictures 27 or diagrams adorning the packaging that would make the front label statement deceptive. See Ebner, 838 F.3d at 966. (“Apart 28 1 pictures, or diagrams adorning the packaging ...from which any inference could be drawn or on which any reasonable belief 2 could be based about how much of the total lip product can be 3 accessed by using the screw mechanism.”). Put another way, Defendant’s use of the word germ is clarified by the disclosure 4 on the back panel, namely that the hand sanitizer is effective at 5 eliminating 99.99% of many common harmful germs and bacteria. See Ebner, 838 F.3d at 966 (taking into consideration 6 how the reasonable consumer’s understanding of how the 7 mechanics of the product works). 8 (Doc. No. 21 at 11-12); see also Catholdi-Jankowski v. CVS Health Corp., No. 6:22-CV- 9 06227 EAW, 2023 U.S. Dist. LEXIS 26520, at *30 (W.D.N.Y. Feb. 16, 2023) (“A 10 reasonable consumer would further be informed by the information contained on the hand 11 sanitizer’s rear label that the phrase ‘kills 99.99% of germs’ does not refer to all germs, 12 known and unknown. In particular, the qualification that the statement refers only to 13 ‘many common germs that may cause illness’ makes clear that the claim is limited to a 14 subset of germs.”); Souter, 2022 U.S. Dist. LEXIS 28386, at *22 (considering qualifying 15 language on back label of sanitizer wipe products where back label did not contradict the 16 front label, but rather “confim[ed] the product’s proper use). The court’s ruling on this 17 point was not disturbed on appeal and Plaintiff has not provided any reason why the court 18 should reconsider its prior ruling on this issue. 19 Instead, rather than making any compelling case for the court to reconsider its 20 ruling, Plaintiff, ignoring the back label information referencing the front label 21 representations Defendant’s Products kill 99.99% of germs, plucks from the universe of 22 all germs certain pathogens he complains are not killed by Defendant’s hand sanitizers. 23 Yet Plaintiff’s allegations are devoid of any actual evidence these pathogens are 24 commonly found on hands. Among these selectively chosen pathogens, for example, are 25 Cryptosporidium, which is most commonly spread through water and C. difficile, which 26 is shed in feces. See https://www.cdc.gov/parasites/crypto/index.html (last accessed July 27 13, 2023); https://www.cdc.gov/cdiff/clinicians/faq.html#transmitted (last accessed July 28 1 13, 2023). Plaintiff’s allegations a reasonable consumer would purchase hand sanitizers 2 to protect themselves from all of these pathogens, regardless of whether they are 3 commonly found on hands, defies logic, reason, and common sense, 4 The unreasonableness of Plaintiff’s allegations is further illustrated by the damages 5 he is seeking. Here, Plaintiff seeks economic damages for the difference between the 6 higher price he paid for Defendant’s Products, assuming the reference to 99.99% of 7 germs referred to all germs known to mankind, and a lower price for hand sanitizer 8 killing about “47% of the 1227 organisms that are pathogenic to humans and can be 9 transmitted by hands.” (Doc. No. 53 at ¶ 15). Essentially, Plaintiff complains of the 10 extra dollar or two he paid upon the assumption Defendant’s Products would help protect 11 him against the universe of all conceivable germs, as opposed to being limited to killing 12 germs commonly found on hands. If such a miracle product were to actually exist in the 13 form of Defendant’s Products, however, it stands to reason Defendant’s Products would 14 be touted as one of the greatest discoveries of medical science to date—and for just a 15 dollar or two more than common hand sanitizer. A reasonable consumer would not 16 seriously entertain such an assumption. 17 As pled, Plaintiff, and any other consumers who believed Defendant was selling a 18 product capable of killing 99.99% of germs “in general and without limitation” were not 19 deceived because of Defendant’s advertising but misled because of their own 20 unreasonable assumptions. Catholdi, 2023 U.S. Dist. LEXIS 26520, at *29 (“[A] 21 reasonable consumer of hand sanitizer products would not understand the phrase 22 ‘kills 99.99% of germs’ to mean all germs in the universe, known or unknown, and 23 regardless of whether such germs are found on the hands.”); Piescik, 576 F. Supp. 3d at 24 1133 (“[R]easonable consumers would not, upon reading a hand sanitizer label that states 25 the product ‘kills 99.99% of germs’ assume that this means it kills 99.99% of all 26 conceivable disease-causing microorganisms, regardless of whether they are commonly 27 found on the hands.”). While Plaintiff and a small subset of consumers might have 28 hazarded an unreasonable assumption as to the efficacy of Defendant’s Products, “‘[a] 1 representation does not become false and deceptive merely because it will be 2 unreasonably misunderstood by an insignificant and unrepresentative segment of the 3 class of persons to whom the representation is addressed.’” Davis v. HSBC Bank, 4 691 F.3d 1152, 1162 (9th Cir. 2012) (quoting Lavie v. Procter & Gamble Co., 105 Cal. 5 App. 4th 496, 507 (2003)). California’s consumer protection laws do not require 6 Defendant to anticipate and dispel Plaintiff’s wholly incorrect assumptions. 7 At bottom, Plaintiff’s latest claims continue to be a not too nimble avoidance of the 8 Ninth Circuit’s directions and limitations for Plaintiff to plead a viable complaint, and 9 instead, continue to be based on Plaintiff’s unreasonable or fanciful interpretations of 10 Defendant’s Product label representations. For these reasons, the court GRANTS 11 Defendant’s Motion to Dismiss Plaintiff’s First, Second, and Third Causes of Action.3 12 III. Plaintiff’s Remaining State Law Claims 13 Plaintiff’s continued failure to plausibly allege that Defendant made any false or 14 misleading representations also undermines his remaining state law claims. This analysis 15 was already set forth in detail in the court’s prior December 6, 2021 Order on 16 Defendant’s Motion to Dismiss Plaintiff’s Second Amended Complaint. (Doc. No. 33 at 17 17–19). For completeness, the court provides a brief analysis below. 18 A. Plaintiff’s Breach of Express Warranty Claim 19 “To state a claim for breach of express warranty under California law, a plaintiff 20 must allege: ‘(1) the seller’s statements constitute an affirmation of fact or promise or a 21 description of the goods; (2) the statement was part of the basis of the bargain; and (3) the 22

23 3 While the court acknowledges other courts have allowed similar claims to go forward 24 under the reasonable consumer test, these decisions are not binding legal authority and 25 their reasoning is not persuasive. See Mier v. CVS Pharmacy, Inc., No. SA CV 20- 01979-DOC-ADS, 2021 U.S. Dist. LEXIS 76737 (C.D. Cal. Mar. 22, 2021); Macormic v. 26 Vi-Jon, No. 4:20CV1267 HEA, 2021 U.S. Dist. LEXIS 247055, at *16–17 (E.D. Mo. 27 Aug. 6, 2021). Regardless, the scale in favor of granting Defendant’s Motion to Dismiss certainly tips in Defendant’s favor given Plaintiff’s failure to live up to his own explicit 28 1 warranty was breached.’” Portelli v. WWS Acquisition, Ltd. Liab. Co., No. 17-cv-2367 2 DMS (BLM), 2018 U.S. Dist. LEXIS 229593, at *14 (S.D. Cal. July 6, 2018) (quoting 3 Weinstat v. Dentsply Internat., Inc., 180 Cal. App. 4th 1213, 1227 (2010)). 4 Here, Plaintiff’s breach of express warranty claim fails for the same reasons his 5 CLRA, FAL, and UCL claims do. Specifically, Plaintiff’s “strained interpretation” of 6 Defendant’s Product labels—that a reasonable consumer would understand the labels to 7 mean that the Products kill 99.99% of germs “in general and without limitation”—is 8 “inconsistent with the understanding of a reasonable consumer” and “does not form the 9 ‘basis of the bargain’ that could support a breach of express warranty claim in these 10 circumstances.” Forouzesh v. Starbucks Corp., No. CV 16-3830 PA (AGRx), 2016 U.S. 11 Dist. LEXIS 111701, at *11 (C.D. Cal. Aug. 19, 2016). Even absent application of the 12 reasonable consumer test, Plaintiff’s claim for breach of express warranty is still subject 13 to dismissal because it depends on Plaintiff’s implausible definition of how the phrase 14 “kill 99.99% of germs” should be interpreted. See Rugg v. Johnson & Johnson, No. 17- 15 cv-05010-BLF, 2018 U.S. Dist. LEXIS 101727, at *11 (N.D. Cal. June 18, 2018) 16 (dismissing express warranty claim that was based on plaintiff’s implausible definition of 17 “hypoallergenic.”). For these reasons, the court GRANTS Defendant’s Motion to 18 Dismiss Plaintiff’s Fourth Cause of Action. 19 B. Plaintiff’s Quasi-Contract Claim 20 To plead a claim for quasi-contract, a plaintiff must allege “that a defendant has 21 been unjustly conferred a benefit through mistake, fraud, coercion, or request.” Astiana 22 v. Hain Celestial Grp., Inc., 783 F.3d 753, 762 (9th Cir. 2015) (internal quotation marks 23 omitted). “The return of that benefit is the remedy typically sought in a quasi-contract 24 cause of action.” Id. (internal quotation marks omitted). Here, as explained above, there 25 was no mistake, fraud, coercion or request. Defendant’s Product Labels were not 26 fraudulent or misleading in the manner that Plaintiff alleges. Plaintiff’s quasi-contract 27 claim, therefore, also fails. See Souter v. Edgewell Pers. Care Co., 542 F. Supp. 3d 1083, 28 1099 (S.D. Cal. 2021) (denying quasi-contract claim where product labels “were not 1 fraudulent and misleading in the way that Plaintiff alleges.”). For these reasons, the 2 court GRANTS Defendant’s Motion to Dismiss Plaintiff’s Fifth Cause of Action. 3 IV. Leave to Amend 4 Finally, the court addresses whether Plaintiff should be given yet another 5 opportunity to amend his complaint. Rule 15(a) of the Federal Rules of 6 Procedure provides that “[t]he court should freely give leave [to amend a pleading] when 7 justice so requires.” “[W]hen a district court has already granted a plaintiff leave to 8 amend, its discretion in deciding subsequent motions to amend is ‘particularly broad.” 9 Chodos v. W. Publ'g Co., 292 F.3d 992, 1003 (9th Cir. 2002) (internal quotation marks 10 omitted). Here, Plaintiff has already had multiple opportunities to amend his complaint 11 to address the pleading deficiencies identified by this court. Plaintiff was also already 12 cautioned in the last round of pleadings that Plaintiff had not fulfilled the task set forth by 13 the Ninth Circuit’s memorandum disposition—a task Plaintiff specifically represented to 14 the Ninth Circuit he would be able to accomplish. Although leave to amend should be 15 liberally granted, the court is not obligated to allow Plaintiff an infinite number of 16 opportunities to repetitively reshape his claims. See Pfau v. Mortenson, 542 F. App’x 17 557, 558 (9th Cir. 2013) (district court did not err in denying leave to amend after 18 plaintiff had already had multiple opportunities to amend and remedy identified 19 deficiencies); Burnett v. Faecher, 507 F. App’x 657, 658 (9th Cir. 2013) (same).4 For 20 these reasons, the court DENIES Plaintiff leave to amend. 21 /// 22 /// 23 /// 24

25 4 As unpublished Ninth Circuit memorandum dispositions, the Pfau and Burnett decisions 26 are not precedent, but may still be considered for their persuasive value. See Fed. R. App. 27 P. 32.1; see also Gladstone v. Travelers Prop. Cas. Co. (In re Garden Fresh Rests., LLC), No. 21-CV-1440 JLS (KSC), 2022 U.S. Dist. LEXIS 170238, at *10 n.4 (S.D. Cal. Sep. 28 l CONCLUSION 2 For the reasons set forth above, the court GRANTS Defendant’s Motion to 3 || Dismiss Plaintiff's Fourth Amended Complaint WITHOUT LEAVE TO AMEND. The 4 || Clerk of Court is instructed to close this case. © || DATED: July 18, 2023 Hibegh Yicole,— 7 JE T. LER Ubtted States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21