ARGUETA v. HENKEL CORPORATION (2024)

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS [ECF NO. 14]

Before the Court is Defendant Henkel Corporation's (“Defendant”) Motion to Dismiss Plaintiff Jessica Argueta's First Amended Class Action Complaint. (ECF No. 14). Having considered the parties’ submissions, the relevant law, and the record in this case, the Court finds this matter suitable for resolution without a hearing, see Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15, and GRANTS Defendant's Motion.

I. BACKGROUND

This action concerns a product manufactured and sold by Defendant called “Zotos Biotera Shampoo” (the “Product”). (ECF No. 12 (“FAC”) ¶ 1). The Product is packaged in an opaque bottle with a label indicating the bottle contains 15.2 fluid ounces, or 450 milliliters, of the Product (the “Shampoo Bottle”). See (id. ¶ 2). The First Amended Class Action Complaint (“FAC”) contains the following picture of the Shampoo Bottle:

(Id.).

In approximately November 15, 2023, Plaintiff purchased the Product (“Ultra Thick & Full”) for “personal use” from a retail store located in Bakersfield, California for approximately $12.98—or, $11.99 plus sales tax. (Id. ¶ 24). According to Plaintiff, she “relied upon the opaque packaging, including the size of the package and product label,” in making the purchase which, Plaintiff alleges, was “designed to encourage” consumers to purchase the Product. (Id.). Plaintiff alleges she understood “the size of the package and product label to indicate that the amount of product contained therein was commensurate with the size of the package.” (Id.).

Plaintiff, however, alleges she was deceived by the Shampoo Bottle because the “actual product only occupies approximately 91% of the exterior space” of the packaging container. (Id. ¶ 2). The FAC alleges Plaintiff would not have purchased the product or, at least, “would not have paid a price premium” if she had known that “the size of the package and product label were false and misleading.” (Id. ¶ 24). Plaintiff alleges that other similar products, like a similarly priced shampoo product also sold at Target (the “Comparator Product”), contain “significantly less empty space in similar containers.” (Id. ¶ 23). The Comparator Product is allegedly 96% full. (Id.). Based on the foregoing, Plaintiff alleges that the “oversized” Shampoo Bottle is misleading. See, e.g., (id. ¶ 63). Plaintiff also alleges that she intends to purchase the same Product in the future, but she “cannot reasonably do so without an injunctive relief order from the Court” that would ensure that Defendant's packaging, labeling, and filling of the Shampoo Bottle is both accurate and lawful. (Id. ¶ 28).

Plaintiff initiated this case in the Superior Court of the State of California, County of Los Angeles on November 29, 2023. See (ECF No. 1-1). On January 4, 2024, Defendant removed the action to federal court. (ECF No. 1 ¶ 4). On February 15, 2024, Plaintiff filed the First Amended Class Action Complaint on behalf of herself and other members of a proposed class defined as “[a]ll persons within the state of California who purchased the Product from a California brick and mortar retailer within the statute of limitations period and whose rights were violated as described above.” See (FAC ¶ 55).

The FAC asserts two causes of action: first, the FAC asserts a common law fraud cause of action based on Defendant's intentional misrepresentation in using the “oversized” container for the Product, (id. ¶¶ 61–67); and second, the FAC asserts a violation of California's Consumers Legal Remedies Act (“CLRA”) based on the allegedly deceptive Shampoo Bottle, (id. ¶¶ 68–79), and seeks actual damages, injunctive relief, statutory damages, and punitive damages (id. ¶ 80).

On February 29, 2024, Defendant moved to dismiss the FAC. (ECF No. 14-1 (“Mot.”)). Plaintiff opposes. (ECF No. 18 (“Opp.”)).

II. LEGAL STANDARD

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include “a short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). Pursuant to Rule 12(b)(6), a defendant may seek to dismiss a complaint for failure to state a claim upon which relief can be granted. “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, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has 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. While a plaintiff need not provide detailed factual allegations, she must provide more than mere legal conclusions. Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

When ruling on a Rule 12(b)(6) motion, the court must accept factual allegations in the complaint as true and construe them in the light most favorable to the non-moving party. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). “[D]ismissal is affirmed only if it appears beyond doubt that [the] plaintiff can prove no set of facts in support of its claims which would entitle it to relief.” City of Almaty v. Khrapunov, 956 F.3d 1129, 1131 (9th Cir. 2020) (cleaned up). However, the Court is “not required to accept as true allegations that contradict exhibits attached to the [c]omplaint or matters properly subject to judicial notice, or allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Seven Arts Filmed Ent., Ltd. v. Content Media Corp. PLC, 733 F.3d 1251, 1254 (9th Cir. 2013) (quoting Daniels–Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010)).

III. DISCUSSION

Defendant argues the FAC should be dismissed because (1) Plaintiff's claims are barred by the “safe harbor doctrine” as California law permits opaque packaging to contain empty space if it serves some function (“functional slack fill”); (2) Plaintiff has not plausibly alleged that a reasonable consumer would be misled by the Shampoo Bottle; and (3) Plaintiff's claims fail to meet the heightened pleading standard of Rule 9(b). Because the Court finds that Plaintiff has not plausibly alleged a reasonable consumer would be deceived by the Shampoo Bottle, Plaintiff fails to state a common law fraud claim and a claim under the CLRA and the Court does not address Defendant's remaining arguments.¹

A. Plaintiff's CLRA Cause of Action

Defendant argues that Plaintiff's CLRA cause of action fails because no reasonable consumer would be deceived by a shampoo bottle that contains 91% of Product when the bottle accurately discloses the volume of Product, permits a consumer to view the contents in the bottle by unscrewing the top, and the consumer can “feel the liquid shifting” when handling the bottle. (Mot. at 17–18). Defendant claims that the Shampoo Bottle is similar to the product at issue in Ebner v. Fresh, Inc., 838 F.3d 958, 967 (9th Cir. 2016). In that case, the plaintiff claimed the packaging of a lip balm product deceived consumers because “the 5.35 gram metallic bottom, and the oversized tube and cardboard packaging all contribute[d] to the misleading impression of a larger quantity of lip product than [wa]s actually included.” Id. The Ninth Circuit rejected the plaintiff's argument, reasoning that a reasonable consumer would “understand[ ] that some additional weight at the bottom of the tube—not consisting of product—may be required to keep the tube upright.” Id. Based on Ebner, Defendant argues that under the circumstances here it would similarly not be reasonable for a consumer to believe that the Shampoo Bottle was completely full.

Plaintiff responds that Defendant's contentions are factual disputes inappropriate for the motion to dismiss stage. Plaintiff also disputes that a reasonable consumer would either unscrew the cap of a product to view the contents of the container or that a reasonable consumer would “ope[n] a product lid without permission of store personnel.” (Opp. at 15). According to Plaintiff, a consumer can still be misled by the “oversized bottle,” notwithstanding the accurate statement of volume on the Shampoo Bottle and points to courts that have held (1) statements on labels to correct an otherwise misleading product package do not, themselves, rebuff a deceptive product claim and (2) a reasonable consumer is not necessarily aware of how a stated weight or volume correlates to the product's size. Plaintiff also argues that the Comparator Product “with much less slack-fill” cited in the FAC suggests that consumers encounter alternative packaging, such as transparent shampoo bottles, and therefore it is reasonable for consumers to “rely on container size when those alternatives are not used.” (Opp. at 21). For the reasons that follow, the Court agrees with Defendant.

To state a claim under the CLRA, a plaintiff must allege facts demonstrating that a “reasonable consumer” would likely be deceived. Ebner, 838 F.3d at 965. The likelihood of being deceived requires “more than a mere possibility that the advertisement might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner.” Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496, 508, 129 Cal.Rptr.2d 486 (2003). Instead, a plaintiff must demonstrate that the advertising is “such that it is probable that a significant portion of the general consuming public or of targeted customers, acting reasonably in the circumstances, could be misled.” Id. The reasonable consumer inquiry “is not limited to the physical label and may involve contextual inferences regarding the product itself and its packaging.” Moore v. Trader Joe's Co., 4 F.4th 874, 882 (9th Cir. 2021) (citing Bell v. Publix Super Markets, Inc., 982 F.3d 468, 476 (7th Cir. 2020)). However, a plaintiff's own “unreasonable assumptions” about a product's label or desire to take the label out of “its proper context” will not suffice. Becerra v. Dr. Pepper/Seven Up., Inc., 945 F.3d 1225, 1229–30 (9th Cir. 2019); see also Trader Joe's Co., 4 F.4th at 882 (affirming the “general principle that deceptive advertising claims should take into account all the information available to consumers and the context in which that information is provided and used”). Whether advertising is deceptive is generally a fact intensive inquiry inappropriate for decision on a motion to dismiss. See Williams v. Gerber Prod. Co., 552 F.3d 934, 939 (9th Cir. 2008) (holding it is the “rare situation” in which dismissal of a false advertising claim is appropriate at the 12(b)(6) stage); see also Sims v. Campbell Soup Co., No. EDCV 18-668 PSG (SPx), 2018 WL 7568640, at *6 (C.D. Cal. Sept. 24, 2018) (citing cases).

Here, it is not plausible that a reasonable consumer would be misled by a shampoo bottle that is only “approximately nine percent empty” when it contains an accurate net weight statement and where the consumer can both hold the Shampoo Bottle and also feel the weight of the contents move within it.² Plaintiff's allegations to the contrary are conclusory, namely that she expected the amount of product to be “commensurate with the size of the package” and that she would have “consumed the entirety of the contents if the package was filled to Plaintiff's expectations.” (FAC ¶¶ 24, 27). Plaintiff implies that the 96% full comparator product would have met her expectations but does not provide any factual allegations to plausibly explain why a 96% full bottle is “significantly less empty” than a 91% full bottle.³ (Id. ¶ 23).

Ebner is a close analogue to this case, notwithstanding Plaintiff's contentions to the contrary.⁴ In Ebner, the plaintiff alleged that the defendant's packaging misled consumers about the amount of product contained in the lip balm because the product was “wrapped in oversized packaging” and the design of the lip balm tube prevented about 25% of the product from being accessible. Ebner, 838 F.3d at 961. Like the Shampoo Bottle here, the Ebner product's package included a label with the accurate net weight of product. The Ebner district court found implausible the plaintiff's claim that the packaging was misleading as to the amount of product because the tube actually contained the amount of product stated on the label. See Ebner v. Fresh Inc., No. SACV 13-00477 JVS, 2013 WL 9760035, at *7 (C.D. Cal. Sept. 11, 2013) (“[I]t is not reasonable to infer that the oversized packaging and metallic weight could mislead reasonable consumers as to the quantity they are receiving.”). Because “consumers [we]re receiving the exact amount disclosed,” the Ebner district court could “not discern” what was misleading about the packaging. Id. The Ninth Circuit affirmed the district court's dismissal, finding that a reasonable consumer could not be misled by the packaging when “an accurate net weight label is affixed to every [product] tube and its accompanying cardboard box.” Ebner, 838 F.3d at 966–67. The Ninth Circuit also found that, “[w]hen viewed in the proper context of the high-end cosmetics market” wherein it is “commonplace” to have “elaborate packaging,” no reasonable consumer “expects the weight or overall size of the packaging to reflect directly the quantity of product contained therein.” Id. at 967.

The same is true here. Consumers receive the amount of Product as stated on the Shampoo Bottle. Further, the Shampoo Bottle is sold in a retail store that sells a variety of mass-produced toiletries. Based on this context, a reasonable consumer would likely understand that bottles, like the Shampoo Bottle, would contain some slack fill space as these bottles have been mass-produced, packaged, and shipped, and thus subject to circumstances that countenance against a completely full bottle of liquid, such as spillage, jostling, and/or various air pressure environments. Therefore, like in Ebner, this Court does not find it plausible that a reasonable consumer would expect “the weight or overall size of the packaging to reflect directly the quantity of product contained therein,” and agrees with Defendant that the FAC fails to allege that the Shampoo Bottle is misleading. Ebner, 838 F.3d at 967; cf. Williams, 552 F.3d at 939 (holding that a reasonable consumer should not be expected to “look beyond misleading representations” to find the accurate statement in small print).⁵ The Court thus finds the facts of this case present the “rare situation[ ]” where it is appropriate to conclude, as a matter of law, that a reasonable consumer would not be misled by the Shampoo Bottle. See Reid v. Johnson & Johnson, 780 F.3d 952, 958 (9th Cir. 2015).

Plaintiff does not provide any binding authority suggesting otherwise. Instead, Plaintiff cites to a litany of district court cases that find that nearly half-empty containers do not align with a reasonable consumer's expectation that the quantity of a product will be “commensurate with the size of the box.” Maisel v. Tootsie Roll Indus., LLC, No. 20-CV-05204-SK, 2021 WL 3185443, at *1 (N.D. Cal. July 27, 2021). Each of these non-binding authorities is factually distinguishable as none involve a container more than 75% full, let alone a container like the Shampoo Bottle that is more than 90% full. See, e.g., Gordon v. Tootsie Roll Indus., Inc., No. CV 17-2664 DSF (MRWx), 2017 WL 8292777, at *1 (C.D. Cal. July 31, 2017) (55% full box of candy); Cordes v. Boulder Brands USA, Inc., No. CV 18-6534 PSG (JCX), 2018 WL 6714323, at *3 (C.D. Cal. Oct. 17, 2018) (a bag of pretzels that had more than 40% empty space); Padilla v. Whitewave Foods Co., No. LA CV18-09327 JAK (JCx), 2019 WL 4640399, at *9 (C.D. Cal. July 26, 2019) (protein power container that was only 50% full). As discussed above, the FAC does not plausibly allege that a reasonable consumer would be mislead by the Shampoo Bottle or that the Product obtained was not, in fact, commensurate with the Shampoo Bottle.

Therefore, the Court GRANTS Defendant's Motion as to Plaintiff's CLRA claim.⁶

B. Common Law Fraud

Plaintiff also asserts a common law fraud cause of action based on Defendant's alleged “false or misleading representation” in the “filling of the Product in an oversized container, which implied to the reasonable consumer that the container had more shampoo liquid than it actually contained.” (FAC ¶ 63). To state a cause of action for common law fraud, here, based on intentional misrepresentation, a plaintiff must allege “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” Neilson v. Union Bank of Cal., N.A., 290 F. Supp. 2d 1101, 1140–41 (C.D. Cal. 2003) (quoting Engalla v. Permanente Med. Group, Inc., 15 Cal. 4th 951, 974, 64 Cal.Rptr.2d 843, 938 P.2d 903 (1997)).

For the same reasons that a reasonable consumer would not be misled into believing that the Shampoo Bottle would be 100% full and, instead, would contain some space between the product fill and the cap, the FAC fails to state sufficient well-pleaded facts that Defendant has made any misrepresentation or that a reasonable consumer could justifiably rely on Defendant's alleged “false or misleading representation.” See (FAC ¶ 63); see also Forouzesh v. Starbucks Corp., No. CV 16-3830 PA (AGRX), 2016 WL 4443203, at *4 (C.D. Cal. Aug. 19, 2016) (dismissing CLRA and fraud claims because a reasonable consumer could not have been misled as to the quantity of product by the defendant filling cups with ice and therefore possibly filling the cup with less product), aff'd, 714 F. App'x 776 (9th Cir. 2018). Because Plaintiff has not plausibly alleged that the Shampoo Bottle is deceptive, as a matter of law, her common law fraud claim similarly fails.⁷

C. Leave to Amend

Leave to amend should generally be “freely given when justice so requires.” Fed. R. Civ. P. 15(a). However, district courts have discretion to deny leave to amend when amendment would be futile. Chappel v. Lab'y Corp. of Am., 232 F.3d 719, 725–26 (9th Cir. 2000). Here, because the Court has found that the Shampoo Bottle cannot deceive a reasonable consumer as a matter of law any amendment to the FAC would be futile. Plaintiff has also not provided any basis for the Court to conclude that additionally pleaded facts could render the Shampoo Bottle or any of its features deceptive. See Macaspac v. Henkel Corp., No. 3:17-CV-01755-H-BLM, 2018 WL 2539595, at *6 (S.D. Cal. June 4, 2018) (denying leave to amend the complaint when “no amount of additionally pleaded facts could change the features of the Purex bottles that render them non-deceptive”) (citing Curry v. Yelp Inc., 875 F.3d 1219, 1228 (9th Cir. 2017)). The Court therefore DENIES leave to amend.

IV. CONCLUSION

For the foregoing reasons, Defendant's motion to dismiss is GRANTED. The Court DISMISSES the Action WITH PREJUDICE.

IT IS SO ORDERED.

FOOTNOTES

1.   Defendant also argues that Plaintiff lacks standing to seek injunctive relief. Defendant has not otherwise challenged Plaintiff's standing to assert her claims. The Ninth Circuit has held “previously deceived consumer[s]” bringing false advertising claims may, only in certain circumstances, “allege that [their] inability to rely on advertising in the future is an injury sufficient to grant [them] Article III standing to seek injunctive relief.” Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 967–69 (9th Cir. 2018). Because the Court finds as a matter of law that a reasonable consumer cannot be deceived by the Shampoo Bottle, it does not address whether Plaintiff has sufficiently alleged a future injury for purposes of standing.

2.   Defendant also notes that the consumer can often look at the bottle's contents to determine its fill, even if the bottle is opaque in design or the plastic material near the top of the container is inflexible.

3.   Though Plaintiff does not supply the actual capacity of the bottle, the Court's calculations suggest that the volume of the Shampoo Bottle itself is likely approximately 16.7 fluid ounces. If, like Plaintiff's “comparator” product, the Shampoo Bottle was 96% full, it would contain approximately 16 fluid ounces, rather than 15.2 fluid ounces. The FAC does not plausibly allege, nor can the Court discern, how a difference of less than one fluid ounce is the marker between deceptive and not deceptive.

4.   Plaintiff argues that Ebner is limited to the “unique factual circumstances regarding the lip balm dispenser at issue,” and has no general applicability. (Opp. at 28). The Court finds, however, that the facts of Ebner regarding the amount of product identified on the label and product being mass produced are analogous to the facts of this case. See (id. at 23–29).

5.   Plaintiff argues that the Court should ignore the accurate net weight of the Product on the Shampoo Bottle because, according to Williams, a fine print statement cannot save an otherwise deceptive label or package. See (Opp. at 21–22). Plaintiff has failed, however, to demonstrate that the size of the bottle is actually misleading when the bottle is 91% full. Therefore, there is no misconception to correct, and Williams does not change this Court's conclusion.

6.   Both parties provide substantial argument regarding whether the Court should apply California's “safe harbor” doctrine, which “precludes plaintiffs from bringing claims based on actions the Legislature permits.” Ebner, 838 F.3d at 963. Here, Defendants argue that California slack fill statutes (1) do not apply to containers in which consumers can view the product, and (2) permit containers to contain some empty space if the slack fill has some function. See Cal. Bus. & Prof. Code § 12606(b) and Cal. Health & Safety Code § 110375(b). District courts in California are split on whether to require consumer-plaintiffs to plead around the affirmative defense or to, instead, address the affirmative defense at summary judgment. See Matic v. United States Nutrition, Inc., No. CV 18-9592 PSG (AFMx), 2019 WL 3084335, at *6 (C.D. Cal. Mar. 27, 2019) (collecting cases). In any event, because the Court finds that a reasonable consumer would not, as a matter of law, be deceived by the Shampoo Bottle, the Court does not address the safe harbor issues.

7.   Because the Court has determined that the Shampoo Bottle does not contain any misrepresentations, the Court need not address Defendant's arguments that the FAC fails to meet the heightened pleading standard under Rule 9.

SHERILYN PEACE GARNETT, UNITED STATES DISTRICT JUDGE