Case Information
1
2
3 UNITED STATES DISTRICT COURT
4 NORTHERN DISTRICT OF CALIFORNIA 5 6 DANIELLE STEINER, et al., Case No. 23-cv-00473-AMO
7 Plaintiffs, 8 ORDER GRANTING MOTION TO v. DISMISS 9 Re: Dkt. No. 13 VI-JON INC, Defendant.
This is a case about hand sanitizer labeling. Defendant Vi-Jon, Inc.’s motion to dismiss was heard before this Court on October 12, 2023. Having read the papers filed by the parties and carefully considered their arguments therein and those made at the hearing, as well as the relevant legal authority, the Court hereby GRANTS Defendant’s motion to dismiss, for the following reasons. BACKGROUND
Plaintiff Danielle Steiner and Plaintiff Amnery Castaneda purchased Vi-Jon’s “Germ-X ® moisturizing original hand sanitizer” (“Product”) in Orange County. Compl. ¶¶ 1, 29-32. Defendant Vi-Jon, LLC (incorrectly sued as Vi-Jon, Inc.) (“Vi-Jon”) is a Missouri corporation headquartered in St. Louis, Missouri, that manufactures and distributes the Product throughout the United States. Compl. ¶ 16.
A. Factual Background
Plaintiffs assert that Vi-Jon: (a) deliberately misrepresents Product as a hand sanitizer, (b) knowingly overreports Product’s alcohol content; and (c) deceptively advertises that the Product “kills 99.99% of germs” and “kills germs in 15 seconds.” Compl. (ECF 1) ¶¶ 2-4. Plaintiffs specifically assert Product’s alcohol concentration falls up to 10% below its advertised level of “62% ethyl alcohol” as found through testing using two quantitative techniques, nuclear magnetic resonance and gas chromatography, both of which are tests used by scientists in the industry. Compl. ¶¶ 20-21. Plaintiffs further allege that Vi-Jon’s representations that the Product “Kills 99.99% of germs” and “kills germs in 15 seconds” are incorrect given that the alcohol concentrations are inaccurate. Compl. ¶ 28. Plaintiffs further cite to an FDA letter that suggests another manufacturer’s efficacy claims are deceptive because there is no scientific basis to make such claims. Compl. ¶ 22. Plaintiffs all claim that, as a result of the alleged misrepresentations, they and others who purchased the Product have suffered injuries including buying the mislabeled Product, which they would not have purchased had they known the Product would not have the promised quality, efficacy, or value. Compl. ¶¶ 100, 115, 124.
B. Procedural History Plaintiffs filed the operative complaint on February 1, 2023. ECF 1. Plaintiffs seek to
represent a class consisting of “all consumers who purchased Product in the State of California for personal use and not for resale, during the time period April 28, 2018, through the present.” Compl. ¶ 40. Plaintiffs advance the following causes of action on behalf of themselves and the class: 1. Common law fraud; 2. Intentional misrepresentation;
3. Negligent misrepresentation;
4. Unjust enrichment;
5. Violation of Consumers Legal Remedies Act, California Civil Code §§ 1750, et seq. (“CLRA”);
6. Violation of False Advertising Law, California Business & Professions Code §§ 17500 et seq. (“FAL”);
7. Violation of Unfair Competition Law, California Business & Professions Code § 17200, et seq. (“UCL”);
8. Breach of express warranty; and Breach of implied warranty of fitness for a particular purpose. Compl. ¶¶ 42-130.
Plaintiffs seek damages, restitution, and injunctive relief on behalf of themselves and proposed class members statewide, for the time period of April 28, 2018, to present.
Vi-Jon filed the instant motion to dismiss the complaint on March 1, 2023. ECF 13. Vi- Jon filed a request for judicial notice in support of the motion to dismiss. ECF 14.
REQUEST FOR JUDICIAL NOTICE
Federal Rule of Evidence 201 permits a court to notice a fact if it is “not subject to
reasonable dispute.” Fed. R. Evid. 201(b). A fact is “not subject to reasonable dispute” if it is
“generally known,” or “can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” Fed. R. Evid. 201(b)(1)-(2). Under the incorporation by
reference doctrine, the court has discretion to consider on a motion to dismiss “documents whose
contents are alleged in a complaint and whose authenticity no party questions, but which are not
physically attached to the [plaintiff’s] pleading.”
Davis v. HSBC Bank Nevada, N.A.
, 691 F.3d
1152, 1160 (9th Cir. 2012);
see also United States v. Ritchie
,
Here, both items submitted for judicial notice are incorporated into the complaint by reference. Plaintiffs’ substantive allegations all refer to the representations made on the Germ-X product label, including as early as the first paragraph of the Complaint. And Plaintiffs specifically refer to the warning letter issued by the FDA to Gojo Industries regarding similar representations of 99.9% effectiveness at killing germs. Compl. ¶ 22. The Court accordingly GRANTS Vi-Jon’s request for judicial notice on the basis that the exhibits are incorporated into the Complaint by reference.
DISCUSSION
A. Legal Standard
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the legal
sufficiency of the claims alleged in the complaint.
Ileto v. Glock
,
conclusory statements, not supported by actual factual allegations, need not be accepted.
Ashcroft
v. Iqbal
,
Review is generally limited to the contents of the complaint, although the court can also
consider a document on which the complaint relies if the document is central to the claims asserted
in the complaint, and no party questions the authenticity of the document.
See Sanders v. Brown
,
If dismissal is warranted, it is generally without prejudice, unless it is clear that the
complaint cannot be saved by any amendment.
Sparling v. Daou
,
B. Analysis
Vi-Jon challenges the sufficiency of Plaintiffs’ complaint broadly and specifically. Broadly, Vi-Jon argues that the pleading lacks the particularity required under Federal Rule of Civil Procedure 9(b). More specifically, Vi-Jon argues that each of the causes of action enumerated in the complaint fall short on the merits or fail to satisfy pre-suit notice requirements. The Court addresses these arguments in turn. Sufficiency of Pleading under Rule 9(b) Plaintiff’s claims that sound in fraud must also meet the heightened pleading standard of
Federal Rule of Civil Procedure 9(b).
See Kearns v. Ford Motor Co.
,
a. Alcohol Testing Plaintiffs specifically state Product’s alcohol concentration falls below its advertised level of “62% ethyl alcohol” and that this concentration was tested using two quantitative techniques, nuclear magnetic resonance and gas chromatography, both of which are tests used by scientists in the industry. Compl. ¶¶ 20-21. Defendant argues that Plaintiffs’ allegations are insufficient because they fail to disclose what Product was tested, who conducted the testing, when and where the testing was conducted, or the methodology used to ultimately determine the alcohol concentration of the Product.
Vi-Jon incorrectly focuses its attack on the underlying testing that Plaintiffs conducted as
evidentiary validation for their factual assertions. This is inconsistent with the legal standard at
the pleading stage, which requires details regarding the allegedly fraudulent statements, not details
regarding how Plaintiffs investigated the statements.
See Salameh
,
b. FDA Warning Letter to Gojo Plaintiffs additionally allege that Vi-Jon’s representations on the Product label are false based, in part, on a January 17, 2020 warning letter (the “Warning Letter”) that the FDA issued to GOJO Industries, Inc. (“Gojo”), the manufacturer of Purell brand hand sanitizer. Compl. ¶ 22. Plaintiffs allege that “[t]he FDA has stated that there is no scientific data to support a claim about killing 99.99% of germs” and therefore conclude that the “[label] claim [] has been found deceptive by the FDA.” Compl. ¶ 22. The gravamen of the Warning Letter was that Gojo’s advertising for Purell on its website made specific references to “preventing disease or infection from pathogens such Ebola, MRSA, VRE, norovirus, flu, and Candida auris.” ECF 13-2. The FDA asserted that such pathogen specific germ-kill statements on Purell’s website were unsupported and in violation of sections 505(a) and 301(d) of the FDCA, Title 21 U.S.C. §§ 355(a) and 331(d).
As Vi-Jon highlights, the label statements at issue here, “Kills 99.99% of germs,” “Kills germs in 15 seconds,” and “Effective at eliminating 99.99% of many common harmful germs in as little as 15 seconds” are not pathogen specific germ-kill statements, and they were not addressed in the Warning Letter. FDA has not issued any warnings regarding these statements, and it has not taken any enforcement action against Vi-Jon. Plaintiffs’ reliance on the Warning Letter issued to a competitor is misplaced and does not support their allegations that the statements on Vi-Jon’s product labels were false when made. Sufficiency of CLRA, FAL, and UCL Claims
In order to protect its citizens from unfair, deceptive, or fraudulent business practices,
California has enacted a number of consumer protection statutes. The CLRA prohibits “unfair or
deceptive acts or practices undertaken by any person in a transaction intended to result or which
results in the sale or lease of goods or services to any customer.” Cal. Civ. Code § 1770(a).
Similarly, the UCL prohibits any “unlawful, unfair or fraudulent business act or practice,” and the
FAL prohibits any “unfair, deceptive, untrue or misleading advertising.” Cal. Bus. & Prof. Code
§§ 17200, 17500. These claims are governed by the “reasonable consumer” test.
Williams v.
Gerber Prods. Co.
,
a. Reasonable consumer standard
“Under the consumer protection laws of California[,] . . . claims based on deceptive or
misleading marketing must demonstrate that a ‘reasonable consumer’ is likely to be misled by the
representation.”
Moore v. Trader Joe’s Co.
,
Generally, “whether a reasonable consumer would be deceived . . . [is] a question of fact
not amenable to determination on a motion to dismiss.”
Ham v. Hain Celestial Grp., Inc.
, 70 F.
Supp. 3d 1188, 1193 (N.D. Cal. 2014);
see Reid v. Johnson & Johnson
,
In
Williams
, the Ninth Circuit determined that a reasonable consumer could be deceived by
images on a fruit snack label depicting a number of different fruits, “potentially suggesting
(falsely) that those fruits or their juices are contained in the product.”
Williams
,
Further, Plaintiffs’ artful pleading omits the asterisk following the quote “Kills 99.99% of
germs[
[*]
].”
See
ECF 13-1 at 5. Plaintiffs’ narrow focus causes them to ignore necessary
supplemental information on the Product’s back-label, which states that the Product is
“
[*]
[e]ffective at eliminating 99.99% of many common harmful germs and bacteria in as little as 15
seconds.” This provides a meaningful qualifier that diminishes consumer expectation
regarding the Product’s efficacy against common germs on hands. Plaintiffs’ theory of the
misleading representations accordingly fails to establish how the label is false or misleading when
read as a whole.
See Dinan v. Sandisk LLC
, No. 18-CV-05420-BLF,
b. CLRA Pre-Suit Notice and Venue Affidavit
The California Civil Code requires a plaintiff to submit a pre-suit demand at least 30 days
prior to initiating a lawsuit alleging violation of the CLRA. Cal. Civ. Code § 1780(a). The statute
also makes clear that a venue affidavit must be filed “concurrently with the filing of the
complaint,” and that a complaint filed without such an affidavit “shall” be dismissed without
prejudice. Cal. Civ. Code § 1780(d). Several California district courts have required submission
of the CLRA affidavit and granted dismissal in its absence.
See In re Nexus 6P Prod. Liab. Litig.
,
Here, Vi-Jon asks the Court to dismiss the CLRA claim for Plaintiffs’ failure to submit the
venue affidavit concurrent with the Complaint. The Court GRANTS Vi-Jon’s motion to dismiss
Plaintiffs’ entire complaint with leave to amend in accordance with Civil Code Section 1780(d).
Additionally, Vi-Jon asks the Court to dismiss Castaneda’s claim for damages under the
CLRA because she did not submit a pre-suit demand in accordance with Section 1780(a).
Plaintiffs make no argument on this point. This defect must be cured in any amended complaint
filed by Castaneda.
Express Warranty Claim
To state a claim for breach of express warranty, plaintiff must establish three elements:
“(1) the seller’s statements constitute an affirmation of fact or promise or a description of the
goods; (2) the statement was part of the basis of the bargain; and (3) the warranty was breached.”
Weinstat v. Dentsply Int’l, Inc.
,
omitted).
Here, Vi-Jon avers that the claims in the Complaint fail because Plaintiffs have not adequately alleged deceptive conduct or reasonable reliance. Plaintiffs allege that Vi-Jon’s statements on Product’s label constitute promises and descriptions that Product is a hand sanitizer, that Product has a 62% alcohol concentration, and that Product has capacity to both “kill 99.99% of germs” and “kill germs in 15 seconds.” Compl. ¶¶ 5, 19, 33-37, 118-21. Further, Plaintiffs allege that Vi-Jon’s statements served part of the basis of the bargain, and that the ethyl alcohol contents of the Product fell short when compared to the statements on the label. Compl. ¶¶ 2-9, 20-24, 27-31. Therefore, accepting the veracity of Plaintiffs’ testing data, as the Court must at this point, Plaintiffs establish a breach of an express warranty regarding the contents of the Product. The Court DENIES the motion to dismiss the express warranty cause of action as to Steiner.
However, a more particular issue remains regarding Castaneda, one of the two Plaintiffs.
“To avoid dismissal of a . . . breach of warranty claim in California, ‘[a] buyer must plead that
notice of the alleged breach was provided to the seller within a reasonable time after discovery of
the breach.’”
Alvarez v. Chevron Corp.
,
because Plaintiffs seek damages based on the same allegations and thus have an adequate remedy
at law. Plaintiffs argue in response that they may preserve their claims for equitable relief at the
pleading stage as alternative remedies.
In
Sonner v. Premier Nutrition Corporation
, the Ninth Circuit held “that the traditional
principles governing equitable remedies in federal courts, including the requisite inadequacy of
legal remedies, apply when a party requests restitution under the UCL and CLRA in a diversity
action.”
In this case, Vi-Jon relies on
Sonner
to argue that Collyer should not be permitted to seek
equitable relief while a legal remedy is available. Courts in this district, however, typically permit
the pursuit of alternative remedies at the pleadings stage.
See, e.g.
,
Harris v. McDonald’s Corp.
,
No. 20-cv-06533-RS,
Vi-Jon argues that Plaintiffs’ negligent misrepresentation claim is barred by the economic
loss rule. As a general matter, that rule “requires a purchaser to recover in contract for purely
economic loss due to disappointed expectations, unless he can demonstrate harm above and
beyond a broken contractual promise.”
Robinson Helicopter Co. v. Dana Corp.
,
Here, Plaintiffs’ negligent misrepresentation claim relates to Vi-Jon’s representations about the Product – particularly the falsity of those representations. Though the negligent misrepresentation claim cannot form the basis of a claim premised on purely economic loss, Plaintiffs’ negligent misrepresentation claim stems from the falsity of Vi-Jon’s advertising representations. The negligent misrepresentation claim thus does not parallel a contractual loss and instead sounds in fraud. Therefore, the economic loss rule does not apply to displace Plaintiffs’ negligent misrepresentation claim, and that claim need not be dismissed as pleaded.
CONCLUSION For the foregoing reasons, the Court GRANTS Vi-Jon’s motion to dismiss pursuant to
California Civil Code Section 1780(d). Castaneda’s CLRA and express warranty claims are DISMISSED with leave to amend, but she must make clear in any amended complaint that she has cured the notice defects described above. Any amended complaint must be filed within 30 days from the date of this order. No additional parties or claims may be added without leave of Court or stipulation of Defendant. IT IS SO ORDERED. Dated: March 18, 2024
A RACELI M ARTÍNEZ -O LGUÍN United States District Judge
Notes
[1] On October 13, 2024, the Court ordered the parties to submit supplemental briefing discussing
26
why the Federal Food, Drug, and Cosmetic Act (“FDCA”) and case law interpreting it, including
PhotoMedex, Inc. v. Irwin
,