Scheibe v. Livwell Products LLC.

• Court: District Court, S.D. California
• Decided: July 7, 2023
• Docket: 3:23-cv-00216
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 JACOB SCHEIBE, individually and on Case No. 23-cv-216-MMA (BLM) behalf of all others similarly situated, 11 ORDER GRANTING IN PART AND Plaintiff, 12 DENYING IN PART DEFENDANT’S v. MOTION TO DISMISS 13

14 LIVWELL PRODUCTS, LLC d/b/a [Doc. No. 3] Adapted Nutrition, a Maryland limited 15 liability company, 16 Defendant. 17 18 19 On February 6, 2023, Jacob Scheibe (“Plaintiff”), on behalf of himself and all 20 others similarly situated, filed a putative class action Complaint against Defendant 21 Livwell Products, LLC d/b/a Adapted Nutrition (“Defendant”). Doc. No. 1 (“Compl.”). 22 On March 6, 2023, Defendant filed a motion to dismiss Plaintiff’s Complaint in its 23 entirety pursuant to Federal Rule of Civil Procedure 12(b)(6). Doc. No. 3. Plaintiff filed 24 an opposition, Doc. No. 5, to which Defendant replied, Doc. No. 6. The Court found the 25 matter suitable for determination on the papers and without oral argument pursuant to 26 Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7.1.d.1. See Doc. No. 7. For 27 the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART 28 Defendant’s motion to dismiss. 1 I. BACKGROUND 2 Defendant sells and manufactures a dietary supplement called Keto K1000 powder, 3 which comes in a variety of flavors (the “Products”).2 Compl. ¶ 20. Plaintiff purchased 4 the Products in October 2022 from Amazon.com while domiciled in San Diego, 5 California. Id. ¶¶ 1, 18. Plaintiff alleges that Defendant’s “labelling claims are false” 6 because the front labels state that the Products contain “nothing artificial” or that they 7 contain “clean ingredients” while they actually contain “DL malic acid, a synthetic 8 substance derived from petrochemicals.” Id. ¶¶ 22–24, 26. Further, Plaintiff claims that 9 using the term “malic acid” instead of “DL malic acid” is in violation of federal and state 10 law. Id. ¶¶ 34–42. 11 Plaintiff bought Defendant’s Products in support of his personal fitness goals and 12 “he prefers to consume only products that contain all-natural ingredients and flavorings.” 13 Id. ¶¶ 18, 19. While the Products list “malic acid” on the back labels, Plaintiff alleges 14 that “independent third-party laboratory testing” has revealed that the Products actually 15 use DL malic acid. Id. ¶¶ 25, 26. Plaintiff further alleges that “the ingredients on the 16 Products’ labels are declared in a way that is misleading and contrary to law, because 17 Defendant designates the flavoring ingredients by the generic name, ‘malic acid,’ instead 18 of by the specific name, ‘DL malic acid.’” Id. ¶ 33. According to Plaintiff, consumers 19 such as Plaintiff would not have purchased Defendant’s Products, or would have paid a 20 substantially reduced price, if they had known the truth. Id. ¶ 51 at 10.3 Plaintiff further 21 alleges that he “may wish to rely on Defendant’s label representations and purchase the 22 23 24 1 Reviewing Defendant’s motion to dismiss, the Court accepts as true all facts alleged in the Complaint 25 and construes them in the light most favorable to Plaintiff. See Snyder & Assocs. Acquisitions LLC v. United States, 859 F.3d 1152, 1157 (9th Cir. 2017). 26 2 Specifically, Plaintiff alleges that Defendant’s Products come in five flavors, but only lists four: watermelon, orange, lemonade, and raspberry lemon. Plaintiff further alleges he purchased each of 27 these flavors. Compl. ¶¶ 18, 21. 3 Plaintiff’s Complaint contains multiple misnumbered paragraphs. All citations to duplicate paragraph 28 1 Products in the future, but cannot currently do so.” Id. ¶ 70 at 14. 2 Plaintiff asserts the following eight causes of action: (Count 1) violation of the 3 Maryland Consumer Protection Act (“MCPA”), Md. Code Com. Law § 13-101 et seq., 4 on behalf of a nationwide class; (Counts 2–4) violation of the California Unfair 5 Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq., on behalf of a 6 California class; (Count 5) violation of the California False Advertising Law (“FAL”), 7 Cal. Bus. & Prof. Code § 17500 et seq., on behalf of a California class; (Count 8 6) violation of California’s Consumer Legal Remedies Act (“CLRA”), Cal. Civ. Code 9 § 1750 et seq., on behalf of a California class; (Count 7) unjust enrichment, on behalf of a 10 nationwide class; and (Count 8) breach of express warranty, on behalf of a nationwide 11 class. Id. ¶¶ 49 at 14–70 at 22. 12 II. LEGAL STANDARD 13 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to 14 state a claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” 15 Conservation Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting 16 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). “A district court’s dismissal for 17 failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is proper if there is 18 a ‘lack of a cognizable legal theory or the absence of sufficient facts alleged under a 19 cognizable legal theory.’” Id. at 1242 (quoting Balistreri v. Pacifica Police Dep’t, 901 20 F.2d 696, 699 (9th Cir. 1988)). 21 “Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short 22 and plain statement of the claim showing that the pleader is entitled to relief.’” Ashcroft 23 v. Iqbal, 556 U.S. 662, 677–78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). “[T]he pleading 24 standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands 25 more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678 26 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “[a] 27 pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of 28 a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555). 1 “To survive a motion to dismiss, a complaint must contain sufficient factual 2 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 3 (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff 4 pleads factual content that allows the court to draw the reasonable inference that the 5 defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). 6 “[W]here the well-pleaded facts do not permit the court to infer more than the mere 7 possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the 8 pleader is entitled to relief.’” Id. at 679 (second alteration in original) (quoting Fed. R. 9 Civ. P. 8(a)(2)). 10 Additionally, allegations of fraud or mistake require the pleading party to “state 11 with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). 12 The context surrounding the fraud must “be ‘specific enough to give defendants notice of 13 the particular misconduct . . . so that they can defend against the charge and not just deny 14 that they have done anything wrong.’” Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 15 (9th Cir. 2009) (quoting Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001)). 16 “Averments of fraud must be accompanied by the who, what, when, where, and how of 17 the misconduct charged. A party alleging fraud must set forth more than the neutral facts 18 necessary to identify the transaction.” Kearns, 567 F.3d at 1124 (internal quotation 19 marks omitted) (first quoting Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th 20 Cir. 2003); and then quoting In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1548 (9th Cir. 21 1994), superseded by statute on other grounds). 22 “If a complaint is dismissed for failure to state a claim, leave to amend should be 23 granted ‘unless the court determines that the allegation of other facts consistent with the 24 challenged pleading could not possibly cure the deficiency.’” DeSoto v. Yellow Freight 25 Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well 26 Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). “A district court does not err in 27 denying leave to amend where the amendment would be futile.” Id. (citing Reddy v. 28 Litton Indus., 912 F.2d 291, 296 (9th Cir. 1990), cert. denied, 502 U.S. 921 (1991)). 1 III. DISCUSSION 2 Plaintiff brings six causes of action against Defendant under California and 3 Maryland law, as well as two additional common law claims of unjust enrichment and 4 breach of express warranty. See generally Compl. Defendant seeks to dismiss all claims. 5 See Doc. No. 3. 6 All of Plaintiff’s claims are based on two theories of liability. First, Plaintiff 7 claims the Products were mislabeled because the packaging represented that the Products 8 contained “nothing artificial”4 even though they allegedly contained an artificial 9 flavoring agent. Compl. ¶ 32. Second, Plaintiff claims that Defendant is required by 10 federal and state law to list malic acid in the ingredient list by its specific name, rather 11 than by its generic name. Id. ¶ 33. Plaintiff contends that failure to do so is a violation of 12 the Federal Food, Drug, and Cosmetic Act (“FDCA”) requirement that the label 13 accurately describe the contents of the Products, and also that “California’s Sherman 14 Food Drug, and Cosmetic Law, Cal. Health & Safety Code § 109875, et seq. incorporates 15 all food flavoring and additive regulations of the FDCA.” Id. ¶¶ 34–42. 16 Defendant argues that Plaintiff’s Complaint should be dismissed in its entirety.5 17 See generally Doc. No. 3-1. The Court addresses each argument in turn. 18 A. Preemption 19 Defendant argues that using the term “malic acid” on its ingredients list is in 20 accordance with federal law, and as such, that Plaintiff’s claims based upon this theory 21 are preempted. Id. at 7–8. Plaintiff contends that this claim is not preempted, relying on 22

23 4 It appears that the Products Plaintiff purchased contained the “nothing artificial” label, and not “clean 24 ingredients.” Plaintiff claims that “since receiving Plaintiff’s demand letter, [Defendant] has changed 25 the . . . Products to state that they contain ‘Clean Ingredients.’” Compl. ¶ 23. While “clean ingredients” would seem to be functionally the same as “nothing artificial,” because it is unclear if Plaintiff 26 purchased the Products after the labelling change the Court only considers the “nothing artificial” label. 5 Defendant purportedly contests all claims. Doc. No. 3 at 2. However, Defendant does not 27 substantively address Plaintiff’s breach of express warranty claim in its analysis. See Doc. No. 3-1 at 14. As such, the Court will not analyze whether Plaintiff has stated a claim for breach of express 28 1 the reasoning in Allred v. Frito-Lay N. Am., Inc., No. 17-CV-1345 JLS (BGS), 2018 WL 2 1185227 (S.D. Cal. Mar. 7, 2018). See Doc. No. 5 at 8–9. 3 Several courts have addressed this question, and the weight of the authority holds 4 that Defendant’s position prevails. See, e.g., Scheibe v. Performance Enhancing 5 Supplements, LLC, No. 3:23-CV-00219-H-DDL, 2023 WL 3829694, at *5–6 (S.D. Cal. 6 June 5, 2023) (agreeing with “the reasoning of the majority of Courts that the malic acid 7 theory is preempted”); Gross v. Vilore Foods Co., Inc., No. 20-cv-0894-DMS, 2020 WL 8 6319131, at *3 (S.D. Cal. Oct. 28, 2020) (finding plaintiff’s claims on the malic acid 9 theory preempted); Hilsley v. Gen. Mills, Inc., 376 F. Supp. 3d 1043, 1048–49 (S.D. Cal. 10 2019) (same); Branca v. Bai Brands, LLC, No. 18-cv-00757-BEN, 2019 WL 1082562, at 11 *5–6 (S.D. Cal. Mar. 7, 2019) (same); Morris v. Mott’s LLP, No. 18-cv-1799-AJG, 2019 12 WL 948750, at *4–5 (C.D. Cal. Feb. 26, 2019) (same); Sims v. Campbell Soup Co., 13 No. 18-cv-668-PSG, 2018 WL 7568640, at *7–8 (C.D. Cal. Sept. 24, 2018) (same); but 14 see Allred, 2018 WL 1185227, at *3 (finding it “plausible that DL-malic acid and L- 15 malic acid are specific names of the (collective, common) name malic acid”). 16 The Court agrees with the majority of courts and finds that to the extent Plaintiff’s 17 claims are based on the malic acid naming convention theory, they are preempted. 18 Accordingly, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s claims on 19 this basis. 20 B. Rule 9(b) Fraud and Reliance 21 All eight of Plaintiff’s claims stem from the central allegation that Defendant 22 engaged in deceptive practices through misleading labels on the Products, and as such the 23 Court finds that all eight claims sound in fraud and are subject to Rule 9(b)6 scrutiny. 24 Fed. R. Civ. P. 9(b) (allegations of fraud or mistake require the pleading party to “state 25 with particularity the circumstances constituting fraud or mistake.”). In addition to 26 27 28 1 analyzing the sufficiency of the Complaint in the Rule 9(b) context, the Court also 2 addresses Defendant’s argument that Plaintiff has not adequately alleged that his reliance 3 resulted in harm. See Doc. No. 3-1. 4 1. Rule 9(b) 5 The Court first turns to whether Plaintiff has met the particularity requirement of 6 Rule 9(b). To do so, the Court examines the Complaint to determine whether Plaintiff 7 pleads “‘the who, what, when, where, and how’ of the misconduct charged.” Kearns, 567 8 F.3d at 1124 (quoting Vess, 317 F.3d at 1106). The “who” and “what” of Plaintiff’s 9 allegations are clear. Plaintiff alleges that Defendant labelled the Products as containing 10 “nothing artificial,” as displayed in the pictures in the Complaint. Compl. ¶¶ 20–24. The 11 “when” of the allegations is slightly murkier, but uncontested. Plaintiff alleges a specific 12 purchase date of October 18, 2022, and defines specific time periods for similarly 13 affected consumers to be eligible to join the respective putative classes.7 Id. ¶¶ 18, 55 at 14 10. As such, the Court finds that the Complaint puts Defendant on sufficient notice 15 regarding the alleged time period of the deceptive activity such that the intent of Rule 16 9(b) is satisfied with respect to “when.” See Kearns, 567 F.3d at 1125 (noting that one of 17 the purposes of Rule 9(b) is to provide defendants with adequate notice to allow them to 18 defend the charge). 19 The question of “where” is less apparent from a reading of the Complaint on its 20 face. On the surface, Plaintiff appears to allege that his harms occurred in California, 21 Maryland, and nationwide. See Compl. Elsewhere however, Plaintiff specifically alleges 22 that “Plaintiff’s losses and those of other class members were sustained in this district.” 23 Id. ¶ 12. The propriety of Plaintiff’s out-of-state claims will be discussed below, but for 24 the purpose of analysis under Rule 9(b), the Court finds the “where” to be sufficiently 25 pleaded. 26

27 7 The prospective classes are limited to consumers having purchased the Products within four years of 28 1 Finally, Plaintiff sufficiently alleges the “how” in that Defendant has misled 2 Plaintiff by falsely labelling the Products with the words “nothing artificial” even though 3 they contain the artificial ingredient DL malic acid. Id. ¶¶ 24, 34–46. While Plaintiff 4 does not assert specifically which flavors were tested by “an independent third-party 5 laboratory [that] confirmed that the malic acid that Defendant uses in these Products is 6 DL malic acid,” Plaintiff has defined the Products as “[Defendant’s] Keto K1000 7 powders.” Id. ¶ 26. Further, Plaintiff claims that “the Products differ only in flavoring; 8 the base formulation for each flavor is the same.” Id. ¶ 21. Finally, Plaintiff claims that 9 “[Defendant] also sells an unflavored version of the Products that does not contain malic 10 acid,” supplementing the implication that Plaintiff’s claims apply to each of the flavored 11 Products. See id. ¶ 31. Therefore, despite the sparse details of the alleged laboratory 12 testing, Defendant has sufficient notice as to which Products Plaintiff alleges to be 13 misleadingly labelled. 14 Accordingly, the Court finds that Plaintiff has adequately pleaded the “who, what, 15 when, where, and how” of the alleged deception. Therefore, because Plaintiff has 16 satisfied Rule 9(b)’s particularity requirements, the Court DENIES Defendant’s motion 17 on this basis. 18 2. Reliance 19 Several courts including the Supreme Court of California have held that claims 20 under California consumer protection laws require a showing of reliance in order to be 21 sufficiently alleged. See, e.g., Kwikset Corp. v. Superior Ct., 120 Cal. Rptr. 3d 741, 754 22 (Cal. 2011) (quoting In re Tobacco II Cases, 46 Cal. Rptr. 3rd 559, 565 (2009)) (holding 23 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 25 statements”); see also Stewart v. Kodiak Cakes, LLC, 537 F. Supp. 3d 1103, 1135 (S.D. 26 Cal. 2021) (noting that a plaintiff alleging claims under the CLRA, FAL, or UCL, must 27 allege actual reliance). Defendant argues that Plaintiff has not adequately pleaded 28 reliance, such that he “fails to state any claim.” Doc. No. 3-1 at 6. Specifically, 1 Defendant argues that the “Complaint is devoid of any specific factual allegations that 2 [Plaintiff] looked for any specific information on Livwell’s Product labels before making 3 his purchase, or that he based his purchase decision on the presence or absence of any 4 such information.” Id. at 5. Defendant further argues that Plaintiff does not allege that 5 he relied on the name “malic acid” when making his purchase. Id. at 6. Instead, 6 according to Defendant, Plaintiff makes “vague, general allegations” about relying on 7 “Defendant’s statements” but does not “particularly identify[] what statements he read 8 and supposedly relied on.” Id. 9 As Plaintiff correctly notes in opposition, courts are obliged to “read[] the 10 complaint as a whole . . . rather than isolating allegations and taking them out of context.” 11 Doc. No. 6 at 6 (quoting Maine St. Retire. Sys. v. Countrywide Fin. Corp., 722 F. Supp. 12 2d 1157, 1162–63 (C.D. Cal. 2010) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 13 551 U.S. 308 (2007)). Defendant seems to conflate Plaintiff’s alleged reliance on the 14 representation on the front of the Products with Plaintiff’s claim that using the words 15 ‘malic acid’ as a generic term is a violation of federal and California law. See Doc. 16 No. 3-1 at 6. The statement that Plaintiff alleges to have relied upon is “nothing 17 artificial,” not the ingredient list or the words “malic acid” specifically. See Compl. 18 Plaintiff contends that there is a growing desire for all-natural products “across the globe” 19 and that many consumers are willing to pay elevated prices for such products. Id. ¶¶ 15– 20 17. Plaintiff further alleges that he is one such customer, that he “carefully reviews 21 dietary supplement labels,” and that he did so when purchasing the Products. Id. ¶¶ 18– 22 19, 50 at 10. The Complaint depicts several Products prominently displaying the words 23 “nothing artificial.” Id. ¶¶ 22–24. Plaintiff asserts that “he reviewed the label on the 24 Products prior to his purchase” and “reasonably understood [it] . . . to mean that the 25 Products contained only natural flavorings.” Id. ¶ 50 at 10. Finally, Plaintiff claims that 26 he relied on the statement on the Products, such that he would not have purchased the 27 Products had he known the truth or at the least would have only been willing to pay a 28 reduced price, thereby creating a “causal nexus between Defendant’s deceptive conduct 1 and Plaintiff’s injury.” Id. ¶¶ 50–54 at 10. 2 The Court therefore finds that when the Complaint is read as a whole, Plaintiff 3 adequately pleads his reliance on the words “nothing artificial” in making his decision to 4 purchase the Products. Accordingly, the Court DENIES Defendant’s motion on this 5 basis. 6 3. Actual Harm 7 Defendant also argues that Plaintiff does not actually allege that the specific 8 Products he purchased contained DL malic acid, and therefore has alleged only a 9 “possible or theoretical risk of harm.” Doc. No. 3-1 at 6–7. Defendant relies on Pels v. 10 Keurig Dr. Pepper, Inc., No. 19-cv-03052-SI, 2019 WL 5813422 (N.D. Cal. Nov 7, 11 2019), noting that the case was dismissed “where plaintiff ‘fail[ed] to plead the water he 12 purchased contained violative arsenic levels.’” Id. Additionally, Defendant cites Vavak 13 v. Abbott Labs., Inc., No. SACV 10-1995 JVS (RZx), 2011 WL 13130493 (C.D. Cal. 14 Mar. 7, 2011), where a UCL claim was dismissed because “plaintiff did not allege she 15 purchased infant formula that ‘actually contained beetles or beetle larvae.’” Doc. No. 3-1 16 at 7. 17 The Court finds the present case to be distinguishable from Pels and Vavak. In 18 Pels, the issue was whether the plaintiff suffered injury from elevated levels of arsenic in 19 bottled water such that he had Article III standing to sue. Pels, 2019 WL 5813422 at *2. 20 The court found that the plaintiff did not have standing because he had not alleged that 21 bottles he drank contained the elevated levels of arsenic, and as such the alleged harm 22 was theoretical. Id. at *5. Here, Plaintiff alleges that the Products—which he 23 purchased—contain an artificial ingredient, and that his reliance resulted in economic 24 harm through the purchase of the Products, see Compl. ¶¶ 18, 26, 51 at 10, which is not a 25 “theoretical risk of harm.” See Doc. No. 3-1 at 6–7. In Vavak the defendant had 26 previously issued a recall for baby formula that potentially contained beetles, and 27 subsequently the plaintiff sued for false representation that the formula was safe for 28 babies. Vavak, 2011 WL 13130493, at *1. The court found that the plaintiff had failed to 1 plead proximate cause of the alleged harm because she did not allege her child was 2 specifically harmed by the questionable bottles. Id. at *6. The issue centered on the lack 3 of pleading of proximate cause, in that the plaintiff had not established that using the 4 baby formula led to her baby becoming ill, and as such the alleged injury was again 5 theoretical. Id. Here, Plaintiff directly asserts the proximate cause: the alleged 6 misrepresentation led to his actual economic injuries, which he would not have suffered 7 had the labelling been truthful. 8 As such, the Court finds that Plaintiff has sufficiently pleaded reliance and actual 9 harm. Therefore, the Court DENIES Defendant’s motion to dismiss for failure to plead 10 reliance and actual harm. 11 C. Maryland Consumer Protection Act 12 Plaintiff asserts a claim under the MCPA on behalf of a nationwide class. Compl. 13 ¶¶ 66 at 21–70 at 22. Plaintiff broadly states that MCPA applies because the “sale of the 14 Products to Plaintiff is a commercial transaction within the meaning of the . . . MCPA,” 15 and that Plaintiff’s economic harm provides standing to sue under the MCPA. Id. ¶¶ 50 16 at 14, 52 at 14. The Court is unpersuaded. Plaintiff has not asserted any facts showing 17 any connection with Maryland. See id. Presumably, Plaintiff makes this claim because 18 Defendant is a limited liability company with its principal place of business in Maryland. 19 See id. ¶ 2. However, as Defendant notes, Plaintiff is “an out-of-state consumer who 20 does not reside in Maryland, and who did not purchase any products in Maryland.” Doc. 21 No. 3-1 at 12. Moreover, Plaintiff’s pleading undermines his position: Plaintiff alleges 22 that his “losses . . . were sustained in this district.” Compl. ¶ 12 (emphasis added). As 23 Plaintiff has not alleged any connection with Maryland, he cannot avail himself of the 24 laws of Maryland.8 See Strickler v. Nat’l Broad. Co., 167 F. Supp. 68, 69 (S.D. Cal. 25 1958) (stating that it is settled law that an action in tort is governed by the law of the 26

27 8 As has been discussed, Plaintiff does not allege his actual location when he purchased the Products. 28 1 jurisdiction where the tort occurred); see also Arno v. Club Med Inc., 22 F.3d 1464, 1468 2 (9th Cir. 1994) (holding that Louisiana law applied to a tort that occurred in Louisiana). 3 While the parties argue their respective positions, relying on statutes and cases that 4 interpret Maryland law, see Doc. No. 3-1 at 13; Compl. at 13–15, interpretation and 5 analysis of Maryland law is unnecessary as there is sufficient law on point within this 6 Circuit. The weight of the authority indicates that the named plaintiff in a putative class 7 action cannot represent a class under the laws of a state where the plaintiff did not 8 personally suffer injury or otherwise have a connection. See, e.g., Van Mourik v. Big 9 Heart Pet Brands, Inc., No. 3:17-CV-03889-JD, 2018 WL 1116715, at *1 (N.D. Cal. 10 Mar. 1, 2018) (reiterating that “district courts in our circuit have dismissed state law class 11 claims for lack of standing before the class certification stage where no named plaintiff 12 resides in or otherwise interacted with the state”); In re Carrier IQ, Inc., 78 F. Supp. 3d 13 1051, 1075 (N.D. Cal. 2015) (finding that “the named Plaintiffs [did] not have standing to 14 assert claims from states in which they [did] not reside or did not purchase their mobile 15 device”). Therefore, Defendant is correct that Plaintiff has “failed to make a prima facie 16 showing that he has any grounds to bring an individual claim under the MCPA, let alone 17 claims on behalf of a nationwide class.” See Doc. No. 3-1 at 13. 18 Based on the foregoing, the Court GRANTS Defendant’s motion to dismiss 19 Plaintiff first claim for violation of the MCPA. 20 D. Unjust Enrichment 21 Plaintiff pleads a claim of unjust enrichment on behalf of a nationwide class, 22 asserting that consumers including Plaintiff benefited Defendant through paying elevated 23 prices for Products that were not truly all natural as claimed. Compl. ¶¶ 58 at 20–65 at 24 21. However, Plaintiff has not identified any state law that he wishes to apply. “[D]ue to 25 variances among state laws, failure to allege which state law governs a common law 26 claim is grounds for dismissal.” Romero v. Flowers Bakeries, LLC, No. 14-CV-05189- 27 BLF, 2016 U.S. Dist. LEXIS 15868, at *34 (N.D. Cal. Feb. 8, 2016); see also In re Nexus 28 6P Prods. Liab. Litig., 293 F. Supp. 3d 888, 933 (N.D. Cal. Mar. 5, 2018) (holding that in 1 order for the Court to determine whether the unjust enrichment claim has been adequately 2 pled, Plaintiff must allege the applicable law); Dell Inc. v. Sharp Corp. (In re TFT-LCD 3 (Flat Panel) Antitrust Litig.), 781 F. Supp. 2d 955, 966 (N.D. Cal. Mar. 16, 2011) 4 (agree[ing] with defendants that [plaintiff] must specify the state laws under which it is 5 asserting claims for unjust enrichment). Therefore, Plaintiff’s unjust enrichment claim is 6 subject to dismissal for failure to identify a particular state law. 7 In Plaintiff’s opposition papers, he appears to contend that he brings the unjust 8 enrichment claim only on behalf of a California class, and therefore, presumably under 9 California law. Compare Compl. ¶¶ 58 at 20–65 at 21 (identifying the unjust enrichment 10 claim as a part of the nationwide class allegations), with Doc. No. 5 at 3–4 (including 11 unjust enrichment as a California class claim, separate from the nationwide class claim). 12 Defendant argues that “California does not recognize a separate cause of action for unjust 13 enrichment. Doc. No. 3-1 at 12, (first citing DeHavilland v. FX Networks, LLC, 230 Cal. 14 Rptr. 3d 625, 646 (Cal. Ct. App. 2018); and then citing Klein v. Facebook, Inc., 580 F. 15 Supp. 3d 743, 829 (N.D. Cal. Jan. 14, 2022)). Defendant also relies on Brodsky v. Apple 16 Inc., 445 F. Supp. 3d 110 (N.D. Cal. 2020), in support of this position, noting that 17 “[c]ourts have consistently dismissed stand-alone claims for unjust enrichment.” Doc. 18 No. 3-1 at 12–15. Plaintiff does not directly address this argument in his opposition to 19 the motion, instead arguing that unjust enrichment and other equitable relief may be 20 properly pleaded in the alternative. See Doc. No. 5. 21 There is a mix of authority on this issue. On the one hand, as Defendant notes, 22 many courts, including the Ninth Circuit, have found that California does not recognize 23 unjust enrichment as a stand-alone cause of action. See, e.g., Astiana v. Hain Celestial 24 Grp., Inc, 783 F.3d 753, 762 (9th Cir. 2015) (stating that “in California, there is not a 25 standalone cause of action for ‘unjust enrichment,’ which is synonymous with 26 ‘restitution.’”) (citations omitted); Brodsky, 445 F. Supp. 3d at 132–33 (noting that courts 27 have consistently dismissed stand-alone claims for unjust enrichment); see also Baiul- 28 Farina v. Lemire, 804 F. App’x 533, 537 (9th Cir. 2020) (quoting McBride v. Boughton, 1 20 Cal. Rptr. 3d 115, 121 (Cal. Ct. App. 2004)). On the other hand, other courts have 2 found that a claim of unjust enrichment can proceed as a quasi-contract claim. For 3 example, the Ninth Circuit has also stated that “an unjust enrichment claim can proceed 4 as either ‘a claim for relief as an independent cause of action or as a quasi-contract claim 5 for restitution.’” Snopes Media Grp., Inc. v. Mikkelson, No. 21-CV-1730-BAS-DEB, 6 2022 WL 1343106, at *5 (S.D. Cal. May 3, 2022) (quoting ESG Cap. Partners, LP v. 7 Stratos, 828 F.3d 1023, 1038 (9th Cir. 2016)). 8 Plaintiff’s claim of unjust enrichment clearly cannot proceed as a putative 9 nationwide class claim, and Plaintiff must properly identify the applicable state law. 10 Therefore, the Court GRANTS Defendant’s motion to that extent. However, due to the 11 lack of uniformity in case law, the Court DENIES Defendant’s motion to dismiss 12 Plaintiff’s unjust enrichment claim under California law.9 13 E. Equitable Relief 14 Defendant makes two distinct arguments that the equitable relief Plaintiff requests 15 in addition to damages is inappropriate: that Plaintiff lacks standing, and that Plaintiff has 16 an adequate remedy available at law. 17 1. Standing to Pursue Injunctive Relief 18 Defendant moves to dismiss Plaintiff’s claims for injunctive relief on the grounds 19 that Plaintiff lacks standing to pursue such relief. Doc. No. 3-1 at 11–12. By way of 20 Counts 2–4 under the UCL, Count 5 under the FAL, and Count 6 under the CLRA, 21 22 23 9 By pleading both unjust enrichment and breach of express warranty, Plaintiff effectively asks the Court to accept both sides of the debate regarding unjust enrichment under California law. Plaintiff pleads 24 existence of a quasi-contract through the claim of unjust enrichment, as well as the existence of a valid 25 contract that supports a claim of breach of express warranty. Both claims cannot simultaneously be true. “Unjust enrichment . . . is not cognizable when there is a valid and enforceable contract between the 26 parties.” Becerra v. Gen. Motors LLC, 241 F. Supp. 3d 1094, 1117 (S.D. Cal. 2017) (quoting Cont’l Cas. Co. v. Enodis Corp., 417 Fed. App’x. 668, 670 (9th Cir. 2011)). Nonetheless, “Federal Rule of 27 Procedure 8(d) allows parties to plead claims in the alternative or in an inconsistent manner, and courts in this Circuit have allowed unjust enrichment and breach of contract claims to proceed simultaneously 28 1 Plaintiff seeks an order enjoining Defendant from engaging in alleged deceptive labelling 2 practices. Compl. ¶¶ 65 at 16, 73, 80, 57 at 20. Prospective injunctive relief requires a 3 plaintiff to show a threat of future injury that is “actual and imminent, not conjectural or 4 hypothetical.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). “[A] previously 5 deceived consumer may have standing to seek an injunction against false advertising or 6 labeling, even though the consumer now knows or suspects that the advertising was false 7 at the time of the original purchase, because the consumer may suffer an ‘actual and 8 imminent, not conjectural or hypothetical’ threat of future harm.” Davidson v. Kimberly- 9 Clark Corp., 889 F.3d 956, 969 (9th Cir. 2018) (quoting Summers, 555 U.S. at 493). To 10 establish standing for injunctive relief, the previously deceived consumer must 11 sufficiently allege “an imminent or actual threat of future harm caused by [the] allegedly 12 false advertising,” such as a desire to purchase the product again in the future. Id. at 970. 13 “In some cases, the threat of future harm may be the consumer’s plausible allegations that 14 she will be unable to rely on the product’s advertising or labeling in the future, and so 15 will not purchase the product although she would like to.” Id. at 969–70. “In other cases, 16 the threat of future harm may be the consumer’s plausible allegations that she might 17 purchase the product in the future, despite the fact it was once marred by false advertising 18 or labeling, as she may reasonably, but incorrectly, assume the product was improved.” 19 Id. at 970. 20 In the present case, Plaintiff has not alleged that he seeks to purchase the Products 21 again in the future. See Compl. Plaintiff makes only one mention of his future plans, 22 wherein he says he “may wish to rely on Defendant’s label representations and purchase 23 the Products in the future, but cannot currently do so.” Id. ¶ 70 at 14. Plaintiff’s future 24 harm is therefore “conjectural or hypothetical” and not “actual and imminent.” Summers, 25 555 U.S. at 493. Plaintiff relies on Davidson, and is correct that the Ninth Circuit has 26 held that a previously deceived consumer may have standing to seek an injunction against 27 false advertising or labelling. However Plaintiff ignores the second part of the analysis in 28 Davidson, wherein the Ninth Circuit explained that consumers must still plausibly allege 1 an actual threat of future harm. See Davidson, 889 F.3d at 970–71. In Davidson the 2 plaintiff adequately alleged her desire to purchase the products again. See id. Plaintiff 3 has not done so here, and as such Davison is distinguishable. See Compl. Therefore, the 4 Court finds that Plaintiff lacks standing to pursue injunctive relief. See, e.g., Davidson, 5 889 F.3d at 969; Brand v. KSF Acquisition Corp., No. 22-cv-392-LAB, 2023 WL 6 3225409, at *3 (S.D. Cal. Mar. 17, 2023); Scheibe, 2023 WL 3829694, at *4. 7 2. Claims for Equitable Relief 8 In connection with Claims 2–5, Plaintiff requests “all other relief allowable.” 9 Compl. ¶¶ 50 at 15–80. Defendant moves to dismiss Plaintiff’s claims to the extent he 10 seeks equitable relief, arguing that Plaintiff fails to allege inadequacy of legal remedies. 11 Doc. No. 3-1 at 9–11. In doing so, Defendant relies on Sonner v. Premier Nutrition 12 Corp., 971 F.3d 834, 842–44 (9th Cir. 2020). See Doc. No. 3-1 at 9–11. 13 “[E]quitable relief is not appropriate where an adequate remedy exists at law.” 14 Schroeder v. U.S., 569 F.3d 956, 963 (9th Cir. 2009). A plaintiff “must establish that she 15 lacks an adequate remedy at law before securing equitable restitution for past harm under 16 the UCL and CLRA.” Sonner 971 F.3d at 844. Courts have extended this requirement to 17 FAL claims as well. See Robie v. Trader Joe’s Co., No. 20-cv-7355-JSW, 2021 WL 18 2548960, at *6 (N.D. Cal. June 14, 2021). A plaintiff may plead claims for equitable 19 relief in the alternative at the pleading stage. See Johnson-Jack v. Health-Ade LLC, 587 20 F. Supp. 3d 957, 976 (N.D. Cal. 2022). However, the “plaintiff must, at a minimum, 21 plead that [ ]he lacks adequate remedies at law if [ ]he seeks equitable relief.” Guthrie v. 22 Transamerica Life Ins. Co., 561 F. Supp. 3d 869, 875 (N.D. Cal. 2021) (emphasis in 23 original). 24 Plaintiff argues that “claims for restitution are explicitly pleaded in the 25 alternative,” and that “such alternative pleading is permitted under California and federal 26 law.” Doc. No. 5 at 9–10. Plaintiff contends that “even after Sonner, courts permit 27 alternative pleading of an equitable remedy such as restitution in UCL and FAL cases, in 28 the event discovery reveals that a plaintiff lacks an adequate remedy at law.” Id. at 10. | || Plaintiff is correct in principle, however, as with his argument for injunctive relief, he 2 || misses the second piece of the analysis. Plaintiff fails to plead or otherwise explain how 3 || he lacks an adequate remedy at law. See Compl. Accordingly, to the extent Plaintiff 4 ||seeks equitable relief, his claims are subject to dismissal because he fails to plead that an 5 || adequate remedy at law is unavailable. See, e.g., Sonner, 971 F.3d at 844; Freund v. HP, 6 || Inc., No. 22-cv-03794-BLF, 2023 WL 187506, at *6 (N.D. Cal. Jan. 13, 2023) (granting 7 motion to dismiss claims for equitable relief because plaintiffs failed to plead a lack of 8 adequate remedy at law); Scheibe, 2023 WL 3829694 at *5 (same). 9 Based upon the foregoing, the Court GRANTS Defendant’s motion to dismiss 10 || Plaintiff's request for equitable relief, including injunctive relief. 11 V. CONCLUSION 12 For the foregoing reasons, the Court GRANTS IN PART Defendant’s motion to 13 dismiss. In particular, the Court DISMISSES Plaintiff's first cause of action, for 14 || violation of the MCPA, and seventh cause of action, for unjust enrichment.!? The Court 15 || DISMISSES all of Plaintiff’s claims to the extent they are premised upon the malic acid 16 ||naming convention theory. The Court further DISMISSES Plaintiff's request for 17 injunctive and equitable relief. Dismissal is with leave to amend to the extent Plaintiff 18 |/can cure the above-noted deficiencies consistent with this Order. The Court DENIES the 19 ||remainder of Defendant’s motion. If Plaintiff wishes to file a First Amended Complaint, 20 || he must do so on or before July 28, 2023. Defendant must then respond within the time 21 || prescribed by Rule 15. 22 IT IS SO ORDERED. 23 ||Dated: July 7, 2023 BMaikek. M—-{ hipltr A HON. MICHAEL M. ANELLO United States District Judge 25 26 27 28 10 While Defendant does not substantively argue for dismissal of Plaintiffs eighth claim, for breach of express warranty, the Court notes that Count 8 fails for the same reasons Plaintiff's seventh claim fails.