514 F.Supp.3d 1177
N.D. Cal.2021Background
- Plaintiff Shana Gudgel bought a 116 fl. oz. container of Clorox "Splash-less" bleach during the COVID-19 pandemic, alleging she believed it suitable for disinfecting.
- Complaint alleges the splash-less formula contains 1–5% sodium hypochlorite and that at least 5% is needed for effective disinfection; plaintiff says labeling and marketing were misleading.
- Product label contains a back-of-package disclaimer: "Not for sanitization or disinfection." Plaintiff alleges the disclaimer is small and that other label/marketing elements (e.g., "10x Deep Cleaning Benefits," "regular," "concentrated," omission of % active ingredient, and an unspecified marketing phrase) create deception.
- Plaintiff brought a putative nationwide class action asserting CLRA, UCL, and FAL claims, plus negligent misrepresentation and unjust enrichment; she seeks damages and injunctive relief.
- Clorox moved to dismiss under Fed. R. Civ. P. 12(b)(6), Rule 9(b), and for lack of standing to seek injunctive relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether label/marketing would deceive a reasonable consumer (CLRA/UCL/FAL) | Labeling and marketing (small back disclaimer; "10x Deep Cleaning Benefits," "regular," "concentrated," omission of %; brand and marketing phrase) would lead reasonable consumers to believe product disinfects | No affirmative misrepresentation; back label expressly states "Not for sanitization or disinfection," so no plausible deception | Dismissed: court finds no deceptive act or omission a reasonable consumer would rely on; statutory claims fail |
| Whether fraud-based claims meet heightened pleading (Rule 9(b)) | Allegations identify specific actionable misrepresentations and omissions | Pleading lacks particularity required for fraud (who/what/when/where/how) | Court did not need to resolve for statutory claims; negligent-misrepresentation fails because no actionable misrepresentation alleged |
| Negligent misrepresentation and unjust enrichment | Plaintiff seeks relief based on alleged misleading labeling and retention of profits | Claims rise or fall with statutory deception claims; no independent basis shown | Dismissed: negligent misrepresentation fails for lack of misrepresentation element; unjust enrichment dismissed for lack of underlying actionable deception |
| Leave to amend and requirements for any amendment | Plaintiff may be able to add specifics (purchase location, source of marketing phrase, reliance) | Defendant skeptical that additional facts can cure deficiencies | Court grants leave to amend once within 21 days and requires specific allegations (where purchased; source of marketing phrase and whether plaintiff saw it and relied on it) |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (complaint must allege plausibility, not mere possibility)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (conclusory allegations insufficient to survive Rule 12(b)(6))
- Williams v. Gerber Prod. Co., 552 F.3d 934 (9th Cir. 2008) (applies the reasonable consumer test; a deceptive front-label statement is not necessarily cured by back-label disclosures)
- Ebner v. Fresh, 838 F.3d 958 (9th Cir. 2016) (Williams requires an initial deceptive act; absent deception, fine print does not matter)
- Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496 (Cal. Ct. App. 2003) (reasonable consumer standard requires a probability that a significant portion of consumers would be misled)
- Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir. 2009) (Rule 9(b) applies to fraud-based consumer protection claims)