SHERI TARVIN v. OLLY PUBLIC BENEFIT CORPORATION (2024)

ORDER RE DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT [21]

Before the Court is Defendant Olly Public Benefit Corporation's (“Defendant”) Motion to Dismiss (“Motion”) Plaintiff Tarvin's (“Plaintiff”) Complaint. (Mot., Docket No. 21). No party filed a written request for oral argument stating that an attorney with five years or less of experience would be arguing the matter. (See Standing Order, Docket No. 7 at 16). Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court finds that this matter is appropriate for decision without oral argument. The hearing calendared for November 15, 2024, is vacated and the matter taken off calendar. For the reasons set forth below, the Court DENIES in part and GRANTS in part Defendant's Motion to Dismiss.

I. BACKGROUND

A. Factual Background

This is an action for false advertising based on alleged deceptive labeling on Defendant's dietary supplements. Defendant makes, distributes, sells, and a wide array of dietary supplements under the name “Olly.” (Compl., Docket 1-2 ¶ 1). Nine of Defendant's products—“Sleep Extra Strength Melatonin 5 mg,” “Sleep Ultra Strength Melatonin 10 mg,” “Sleep Maximum Strength Melatonin 10 mg, “Probiotic Extra Strength 6 Billion Probiotics,” “Probiotics Immune & Digestive Health On Billion Live Cultures – Berry,” Probiotics Immune & Digestive Health On Billion Live Cultures – Mango,” “Multi + Probiotic 1 Billion Probiotics,” “Daily Energy Extra Strength B12 1000 mcg,” and “Elderberry Extra Strength 450 mg” (collectively “Olly Products”)—are the subjects of this litigation. (Id.).

Each Olly Product includes the dosage amount and the net quantity of units per container on its front label. (See id. ¶¶ 13–16). Unlike some other dietary supplement brands, Olly Products do not expressly state on the front label the serving size or that the dosage amount is per serving. (Id. ¶¶ 20–22). Olly Products, however, do include the serving size and the servings per container information on the back label. (See id. ¶ 13).

Plaintiff is a consumer of three of the nine Olly Products at issue.¹ (Id. ¶ 24). Her most recent purchase of an Olly Product was in March 2024 from a CVS store located at 3741 Crenshaw Blvd, Los Angeles, CA 90016. (Id.). Plaintiff alleges Olly Products' labels are false and deceptive because Defendant's advertisement on the front label “misleads reasonable consumers into believing that each soft gel or gummy unit contains the advertised dosage of nutrients,” when in fact, “each unit only contains a fraction of the advertised nutrients.” (Id. ¶¶ 15–16). For example, a consumer must ingest two units of gummies of Olly Extra Strength Sleep Product, rather than one, to obtain the 5 mg of melatonin that is advertised on the product's front label. Had she known that more than one unit needed to be consumed to receive the advertised dosage on the front label, Plaintiff asserts that she would not have either purchased the Olly Products or paid as much as she did for them. (Id. ¶¶ 25–26). Through these allegedly misleading labels, Plaintiff claims that Defendant was able to charge consumers like Plaintiff a premium and gained an unfair advantage over its competitors. (Id. ¶¶ 16, 23, 27).

B. Procedural Background

Plaintiff filed this class action complaint against Defendant in Superior Court of California, County of San Diego on June 24, 2024, alleging eight causes of actions: (1) violation of the California Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200, et seq.; (2) violation of the California False Advertising law (“FAL”), Cal. Bus. & Prof. Code. § 17500, et seq.; (3) violation of the California Consumer Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1750, et seq.; (4) breach of express warranty; (5) breach of implied warranty; (6) intentional misrepresentation; (7) negligent misrepresentation; and (8) unjust enrichment. (Compl. at 18–28). Defendant removed to this Court on July 24, 2024. (Docket No. 1). On August 30, 2024, Defendant filed a Motion to Dismiss Plaintiff's Complaint pursuant to Fed. R. Civ. P. 12(b)(6). (Mot., Docket No. 21). On October 25, 2024, Plaintiff filed an Opposition, (Opp'n, Docket No. 26), to which Defendant replied on November 1, 2024. (Reply, Docket No. 27). The matter is fully briefed.

II. DISCUSSION

A. Legal Standard

Under Rule 12(b)(6), a defendant may move to dismiss for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A complaint may be dismissed for failure to state a claim for one of two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557). The court must construe the complaint in the light most favorable to the plaintiff, accept all allegations of material fact as true, and draw all reasonable inferences from well-pleaded factual allegations. Gompper v. VISX, Inc., 298 F.3d 893, 896 (9th Cir. 2002). The court, however, is not required to accept as true legal conclusions couched as factual allegations. See Iqbal, 556 U.S. at 678. A claim is considered to have “facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In deciding a Rule 12(b)(6) motion, a court “may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.” Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007).

B. Analysis

Defendant seeks to dismiss all of Plaintiff's eight causes of action. The Court will address each in turn.

1. Consumer Protection Claims (Counts I, II, & III)

Three of Plaintiff's eight claims (Counts I, II, and III) arise from California's consumer protection statutes: the UCL, the FAL, and the CLRA. Because each of the three claims under these California statutes are governed by the same “reasonable consumer” standard, the Court will consider them together. McGinity v. Procter & Gamble Co., 69 F.4th 1093, 1097 (9th Cir. 2023).

The “reasonable consumer” standard requires that plaintiffs “show that members of the public are likely to be deceived.” Williams v. Gerber Prod. Co., 552 F.3d 934, 938 (9th Cir. 2008) (internal quotation marks and citation omitted). The California Supreme Court has recognized “that these laws prohibit not only advertising which is false, but also advertising which, although true, is either actually misleading or which has a capacity, likelihood, or tendency to deceive or confuse the public.” Id. (quoting Kasky v. Nike, Inc., 27 Cal.4th 939, 951, 119 Cal.Rptr.2d 296, 45 P.3d 243 (2002)). The reasonable consumer standard “requires more than a mere possibility that [the label] might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner,” but rather “that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.” Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016) (quoting Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496, 508, 129 Cal.Rptr.2d 486 (2003)). The touchstone for the “reasonable consumer” test is “whether the product labeling and ads promoting the products have a meaningful capacity to deceive consumers.” McGinity, 69 F.4th at 1097 (emphasis added). Because whether a reasonable consumer would be deceived by a product label often raises questions of fact, however, it is generally not appropriate for resolution on a motion to dismiss except in “rare situations” where the alleged violations of UCL, FAL, and CLRA are simply not plausible. Reid v. Johnson & Johnson, 780 F.3d 952, 958 (9th Cir. 2015); Moran v. Edgewell Pers. Care, LLC, No. 21-CV-07669-RS, 2022 WL 3046906, at *2 (N.D. Cal. Aug. 2, 2022) (quoting Williams, 552 F.3d at 938); Ham v. Hain Celestial Grp., Inc., 70 F. Supp. 3d 1188, 1193 (N.D. Cal. 2014); see also Werbel ex rel. v. Pepsico, Inc., No. 09–cv–04456–SBA, 2010 WL 2673860, at *3 (N.D.Cal. July 2, 2010) (a reasonable consumer would not be deceived into believing that cereal named “Crunch Berries” derived significant nutritional value from fruit).

Defendant claims that this is one of those rare circumstances. Specifically, Defendant argues that Plaintiff's UCL, FAL, and CLRA claims should be dismissed because (1) Plaintiff fails to provide sufficient factual support to plausibly allege that a substantial portion of reasonable consumers are deceived by Olly's labels, (2) in any event, Olly Products' labels are not likely to deceive a reasonable consumer—in part because Olly Products' labels comply with applicable regulation, and (3) at most, the front labels are ambiguous, and the ambiguity is resolved by Olly Products' back labels, which clarify the dosage represented on the front labels is per serving, not per unit. (See Mot. at 8–20). Because this case is at the motion to dismiss stage, the Court disagrees.

The Court finds Walters v. Vitamin Shoppe Industries and its progeny to not only be instructive, but directly on point. 701 F. App'x 667 (9th Cir. 2017) (“Walters II”). In Walters II, the Ninth Circuit reversed a district court's dismissal of plaintiff's fraud claim in a case where, as here, plaintiff alleged that defendant's products' front labels were misleading because defendant displayed dosage information per serving rather than per unit. Id. at 670. Citing to Williams, the Ninth Circuit rejected defendant's argument that plaintiff could clarify the claims on the front label by cross-checking them against the back label and explained that “[c]onsumers review the small print on a product's label to learn additional details about a product, not to correct potentially misleading representations found on the front.” Id. (citing Williams, 552 F.3d at 939–40 (“We do not think that the FDA requires an ingredient list so that manufacturers can mislead consumers and then rely on the ingredient list to correct those misinterpretations and provide a shield for liability for the deception. Instead, reasonable consumers expect that the ingredient list contains more detailed information about the product that confirms other representations on the packaging.”)). Following Walters II, the court in Cimoli v. Alacer Corp. found that Plaintiff had properly alleged an actionable misrepresentation under the UCL, FLA, and CLRA where the representation on the front panel of defendant's products included a specific dosage representation of Vitamin C and Elderberry Juice without any indication as to whether the dosage was per serving or per gummy. 546 F. Supp. 3d 897, 903 (N.D. Cal. 2021); see also Nacarino v. KSF Acquisition Corp., 642 F. Supp. 3d 1074 (N.D. Cal. 2022) (relying on Walters II and Cimoli to hold that the product's instruction panel did not defeat plaintiff's false advertising claim where the protein dosage advertised required consumers to add additional ingredients). The facts in Walters II, Cimoli, and Nacarino are nearly identical to the facts at issue in this case, and the Court thus finds that Plaintiff has sufficiently alleged claims under the UCL, FLA, and CLRA.

None of Defendant's arguments to the contrary are persuasive. First, the Court disagrees with Defendant's claim that Plaintiff failed to provide sufficient factual support for Plaintiffs' “conclusory allegation” that reasonable consumers could be misled by Olly Products' labels. (Mot. at 10). As the Ninth Circuit case in William made clear, “the primary evidence in a false advertising case is the false advertising itself.” Williams, 552 F.3d at 938 (quoting Brockey v. Moore, 107 Cal.App.4th 86, 100, 131 Cal.Rptr.2d 746 (Cal. App. 2003)). Here, in support of Plaintiff's allegations, Plaintiff provided pictures and descriptions of Olly Products' labels and explained why and how reasonable consumers would find Olly Products' labels misleading—i.e., the dosage amount along with the unit quantity without any additional qualifications or information on servings on the front label would mislead reasonable consumers to believe that each unit contained the advertised dosage amount. (See Compl. ¶¶ 12–17). In addition to the Olly Products' labels themselves, Plaintiff included images of competitor labels as points of comparison to demonstrate “appropriate labeling conduct” and establish the expectations of a reasonable consumer. (See Compl. ¶¶ 20–23; Opp'n at 7–8). The Court thus finds Plaintiff's allegations are sufficiently supported to state a plausible claim under UCL, FLA, and CLRA and they not just bare legal conclusions.²

Second, Defendant argues that Walters II and Cimola are unavailing because they apply an “outdated” and “far lower standard” of whether the front label was “potentially misleading” rather than the alleged new standard articulated in McGinity and Ebner of whether the front label had “the meaningful capacity to deceive” a “significant portion of the general consuming public or ․ targeted consumers.” (Mot. at 19–20; Reply at 2–3). The Court finds this argument unsupported. Contrary to Defendant's assertions, the Ninth Circuit in McGinity did not reject any previously articulated standard, let alone the standard applied in Walters II, and impose a higher standard. In fact, the McGinity decision is devoid of any mention of either Walters II or Cimoli. (Opp'n at 14; see also generally McGinity, 69 F.4th 1093). Notably, the language that Defendant points to McGinity as altering the “reasonable consumer” standard is a quote from another Ninth Circuit case, Ebner, which in turn, quotes a 2003 California Court of Appeals case, Lavie v. Procter & Gamble Co. See McGinity, 69 F.4th 1093 at 1097 (quoting Ebner, 838 F.3d at 965 (quoting Lavie, 105 Cal. App. 4th at 508)). As Plaintiff correctly points out, both Walters II and Cimoli were decided over a decade after Lavie. (Opp'n at 14). The fact that McGinity did not, in fact, overrule any Ninth Circuit case is confirmed by a more recent Ninth Circuit case, Whiteside v. Kimberly Clark Corp. 108 F.4th 771 (9th Cir. 2024). Similar to here, the defendants there— relying on McGinity—sought to impose a more restrictive standard than established Ninth Circuit precedent regarding interpreting ambiguity on the front label (which the Court will address in more detail below). In rejecting the defendant's argument, the Court specifically noted that accepting defendant's construction of the law would “effectively overrule Williams [ ], something [it] did not and could not do as a three-judge panel of the Ninth Circuit.” 108 F.4th at 781 (emphasis added). A review of McGinity, Ebner and Walters II makes clear that the three cases relied on and faithfully applied the “reasonable consumer” test articulated in Williams, which in turn relied on Lavie. See Williams, 552 F.3d at 938 (citing to Lavie); McGinity, 69 F.4th 1097 (citing to Williams and Lavie); Ebner, 838 F.3d at 965 (citing to Williams and Lavie); Walters II, 701 F. App'x at 670 (citing to Williams); see also Whiteside, 108 F.4th at 781 (noting that McGinity cited Williams with approval). The Court finds no reason to believe that McGinity sought to deviate from well-established Ninth Circuit precedent and impose some higher standard, as Defendant here claims.

Third, Defendant also seems to suggest that Olly Products' labels cannot be misleading as a matter of law because they comply with FDA rules and guidance, and FDA guidance sets the “information about how reasonable people read supplement labels.” (Mot. at 11–14; Reply at 3-4). The Court again is unpersuaded. Although there are certain instances where compliance with FDA guidelines would allow a defendant to avail itself to a safe harbor, and therefore would be entitled to a dismissal as matter of law, the case here is not such an instance. In Ebner, for example, the court there distinguished between a claim that challenged and sought to alter a product's accurate net weight statement and a claim based on defendant's omission of supplemental or clarifying language about a product's accessibility to the full advertised net weight of the product. 838 F.3d at 963–65. The former fell under the California safe harbor doctrine as it challenged a “conduct [that was] affirmatively permitted by statute,” while the latter was subject to the “reasonable consumer” test. Id. This case is more akin to the latter; Plaintiff here is not seeking to alter the advertised dosage or net quantity on Olly Products labels but is rather challenging the lack of clarifying language on the front label that would indicate that the advertised dosage is per serving, not per unit. Subject to the “reasonable consumer” test, the Court finds Walters II persuasive, as discussed above, and therefore controlling.

Finally, Defendant asserts that Olly Product labels are “at the very most” ambiguous, and any such “ambiguity can be resolved by reference to the back label.” (Mot. at 14–18 (citing McGinity, 69 F.4th at 1099)). In McGinity, the Ninth Circuit stated that “the front label must be unambiguously deceptive for a defendant to be precluded from insisting that the back label be considered together with the front label.” McGinity, 69 F.4th at 1098 (emphasis added). In other words, if a front label is considered “ambiguous” then a court may consider the product's back label at the pleading stage. Id. at 1099. Defendant here claims that Olly Products labels are at most “ambiguous (rather than unambiguously deceptive)” because the front labels “do not make any affirmative promises about how many gummies are required to reach the advertised dosage,” and a reasonable consumer could interpret the dosage amount as the maximum dosage amount recommended, rather than dosage per unit as Plaintiffs claim. (Mot. at 14–18). Given that Olly Products' front labels are ambiguous, Defendant asserts that the Court may consider the back label, which clarifies the ambiguity and removes any reasonable possibility that consumers would be misled. (Id.). The Court again disagrees and finds that Walters II forecloses Defendant's argument. In Whiteside, the Ninth Circuit was presented with the question of when a front label may be considered “ambiguous” such that a back label may be considered. 108 F.4th at 779–80. There, the court rejected defendant's reading of McGinity to mean that the front label is ambiguous if it can have more than one possible meaning, and instead accepted plaintiff's construction that a front label may be “unambiguously deceptive” for Rule 12(b)(6) purposes “even if it has two possible meanings, so long as the plaintiff has plausibly alleged that are reasonable consumer would view the label as having one unambiguous (and deceptive) meaning.” Id. at 780–81. In accepting plaintiff's interpretation, the Whiteside court affirmed that McGinity did not overrule any long-standing Ninth Circuit precedent established in Williams that “[y]ou cannot take away in the back fine print what you gave on the front in large conspicuous print.” Id. at 780 (quoting Brady v. Bayer Corp., 26 Cal. App. 5th 1156, 1172 (2018) (citing Williams)). Here, Defendant essentially offers the same argument that was expressly rejected in Whiteside—that because there is another way a reasonable consumer may interpret the front label than what Plaintiff suggests, Olly Product labels are ambiguous. As Walters II made clear, however, representation of dosage amount on the front label without qualifying serving information may be considered “unambiguously deceptive” to survive a 12(b)(6) motion.

The Court therefore DENIES Defendant's motion to dismiss Plaintiff's consumer protection claims under UCL, FLA, and CLRA (Counts I, II and III).

2. Breach of Express and Implied Warranty (Counts IV & V)

Under California law, to state a claim for breach of express warranty, the plaintiff must show “(1) [the seller] made an affirmation of fact or promise or provided a description of its goods; (2) the promise or description formed part of the basis of the bargain; (3) the express warranty was breached; and (4) the breach caused injury to the plaintiff.” See Corbett v. PharmaCare U.S., Inc., 567 F. Supp. 3d 1172, 1199 (S.D. Cal. 2021) (internal quotation and citation omitted). “To constitute a warranty and be actionable, the statement must be specific and unequivocal.” Id. (internal quotation and citation omitted).

Defendant argues that Plaintiff's claim of breach of express warranty is not actionable because Olly Products' labels do not make any affirmative promises—i.e., “there is no unequivocal promise that the dosage is per gummy.” (Mot. at 21). Although the Court has found the dosage representations on Olly Products' front labels could be misleading to a reasonable consumer, the Court agrees that the representation does not constitute an express “affirmation of fact or promise” that the dosage amount is per unit. See, e.g., Nacarino, 642 F. Supp. 3d at 1086 (holding that a “20 g protein” representation did not “constitute an express statement that the amount of protein is per serving/scoop alone”); Cimoli, 546 F.Supp.3d at 900, 905 (holding no breach of express warranty where label on Vitamin C gummies, which stated “750 mg Vitamin C ․ [did] not amount to an unequivocal statement or promise that the dosage [was] per gummy” and was “otherwise truthful”). Plaintiff's reliance on Brady and Caldwell do not require a different outcome as both had some affirmative statement that could constitute as an express promise. In Brady, for example, the court held that plaintiff had a viable breach of express warranty claim because defendant's “One a Day” label on the front label—which made “an implied affirmation that one gummie will be sufficient for one day's vitamins”— “combined with the assurance the bottle contains 100 gummies” created a “promise of quantity: A 100-day supply.” Brady, 26 Cal. App. 5th at 1178 (emphasis added). And in Caldwell, the court there held a “Ultimate Omega 2X label” could be construed as an express promise that it contains “twice the amount of omega as the regular promise.” Caldwell v. Nordic Nats., Inc., 709 F. Supp. 3d 889, 907 (N.D. Cal. 2024). Here, the Olly Products' labels do not contain any affirmative message that would be the equivalent of Brady's “One a Day” label or Caldwell's “2X.” The Court thus finds that Plaintiff has failed to state an express warranty claim for which relief can be granted.

Defendant also moves to dismiss Plaintiff's implied warranty claim on the grounds that the implied warranty claim “rests on the same alleged ‘promise’ as her express warranty claim—a promise that does not exist.” (Mot. at 22). When a plaintiff's expressed and implied warranty claims are predicated on the same alleged “affirmation of fact or promise,” the implied warranty claim “rises and falls” with the express warranty claim. Cimoli, 546 F.Supp.3d at 905; see also Nacarino, 642 F.Supp.3d at 1086. Because Plaintiff has failed to allege a viable breach of express warranty cause of action, Plaintiff's implied warranty claim likewise fails.

Accordingly, Defendant's motion to dismiss Plaintiff's breach of express and implied warranty claims (Counts IV and V) is GRANTED WITH LEAVE TO AMEND, although it is not clear that any amendment could cure these deficiencies.

3. Negligent and Intentional Representations (Counts VI & VII)

Plaintiff also brings common law fraud claims of intentional and negligent misrepresentation. See Biggs v. Bank of Am. Corp., No. EDCV1500267VAPKKX, 2017 WL 11648863, at *3 (C.D. Cal. July 28, 2017) (equating common law frauds with intentional and negligent misrepresentation); Just Film, Inc. v. Merch. Servs., Inc., No. C 10-1993 CW, 2011 WL 3809908, at *12 (N.D. Cal. Aug. 29, 2011) (same). To state a claim for intentional misrepresentation under California law, Plaintiff must establish: “(1) a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage.” Robinson Helicopter Co., Inc. v. Dana Corp., 34 Cal. 4th 979, 990 (Cal. 2004). Negligent misrepresentation differs in that it “does not require scienter or intent to defraud.” See Small v. Fritz Companies, Inc., 30 Cal. 4th 167, 173–74 (Cal. 2003) (quotation omitted). Instead, Plaintiff must establish that Defendant made the misrepresentation without “reasonable ground for believing it to be true.” Id. at 174 (quoting Cal. Civ. Code §§ 1710(2), 1572(2)).

Claims under consumer protection statute and common law fraud claims are “substantively distinct” in that for a statutory claim, “a plaintiff need merely allege that ‘members of the public are likely to be deceived,” while “a common law fraud deception must be actually false.” In re Actimmune Mktg. Litig., No. C 08-02376 MHP, 2009 WL 3740648, at *7 (N.D. Cal. Nov. 6, 2009), aff'd, 464 F. App'x 651 (9th Cir. 2011) (quoting In re Tobacco II Cases, 46 Cal.4th 298, 312 (2009); see also Day v. AT & T Corp., 63 Cal. App. 4th 325, 332 (1998) (“the concept encompassed in the phrase ‘likely to be deceived’ has no relationship to the concept of common law fraud, which is also sometimes referred to as deception”). Thus, a “perfectly true statement couched in such a manner that is likely to mislead or deceive the consumer, such as by failure to disclose other relevant information” may be actionable under consumer protection statutes but not common law fraud. Day, 63 Cal. App. 4th 333–34. Applying this distinction, the court in Nacarino found that dosage representation of protein on the front label, which could be clarified by reference to the back panel, was sufficient to support a claim under the CLRA, but did not rise to the level of express misstatement to support a common law fraud claim. 642 F.Supp.3d at 1087–88. Similar to Nacarino, the Court finds that Olly Products' labels do not contain a false affirmation of fact necessary to state a claim under intentional or negligent misrepresentation.

The case that Plaintiff cites to—LeGrand v. Abbot Laboratories—is inapposite. (Opp'n at 19). The court in LeGrand found that a front label on a nutrition shake product that included statements such as “Complete, Balanced Nutrition,” “Complete, Balanced Nutrition for everyday health,” and “#1 Doctor Recommended” when the product contained harmful level of sugar was actionable under both consumer fraud statutes as well as common law fraud. 655 F. Supp. 3d 871, 891–93, 894–96 (N.D. Cal. 2023). First, the LeGrand court did not specifically address the distinction between consumer protection law and common law fraud. Second, the Court finds that statements like “Complete, Balanced Nutrition for everyday health” rise to the level of express misstatement required under common law fraud claims. The Court therefore GRANTS Defendant's motion to dismiss Plaintiff's intentional and negligent misrepresentation claims (Counts VI and VII).

4. Unjust Enrichment (Count VIII)

“[I]n California, there is not a standalone cause of action for ‘unjust enrichment,’ which is synonymous with ‘restitution.’ ” Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 762 (9th Cir. 2015) (citations omitted). “When a plaintiff alleges unjust enrichment, [however,] a court may construe the cause of action as a quasi-contract claim seeking restitution.” Id. (quotation marks and citation omitted).

Here, Plaintiff seeks relief under a “Quasi-Contract/Unjust Enrichment” cause of action on the grounds that “Defendant's false and misleading labelling cased Plaintiff and the Class to purchase the [Olly] Products at a premium” and “Defendant received a direct and unjust benefit, at Plaintiff and the Class's expense.” (Compl. at 27–28). Such a “straightforward statement is sufficient to state a quasi-contract cause of action.” Astiana, 783 F.3d at 762. To the extent that Defendant suggests that Plaintiff's quasi-contract is unnecessary on the grounds that it may be duplicative or superfluous to Plaintiff's other claims, “that is not grounds for dismissal.” Id. (citing Fed. R. Civ. P. 8(d)(2) (“A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones.”)). Defendant's motion to dismiss Plaintiff's claim for quasi-contract/unjust enrichment (Count VIII) is therefore DENIED.

III. CONCLUSION

For the foregoing reasons, Defendant's Motion to Dismiss is GRANTED in part and DENIED in part without prejudice. Plaintiff may file an amended complaint that conforms with this Order within 21 days.

IT IS SO ORDERED.

FOOTNOTES

1.   Specifically, Olly's “Daily Energy Extra Strength B12 1000 mcg,” “Probiotic Extra Strength 6 Billion Probiotics,” and “Elderberry Extra Strength 450 mg.” (Compl. ¶ 4, 24).

2.   In Defendant's Motion to Dismiss, Defendant seems to suggest that “something more is necessary” to establish Plaintiff's allegations such as a consumer survey or market research evidence. (Mot. at 10). Defendant expressly refuted this position in its reply, (Reply at 2), and the Court therefore does not address this argument.

HON. WESLEY L. HSU UNITED STATES DISTRICT JUDGE