GONZALES v. THG BEAUTY USA LLC (2026)

ORDER DENYING DEFENDANT'S MOTION TO DISMISS

(ECF No. 9)

Presently before the Court is Defendant THG Beauty USA LLC's Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6) and 9(b) (“Mot.,” ECF No. 9). Also before the Court are Plaintiff Geneva Gonzales's Opposition thereto (“Opp'n,” ECF No. 12) and Defendant's Reply in support thereof (“Reply,” ECF No. 13). Upon full consideration of all the papers and evidence submitted, THG Beauty USA LLC's Motion to Dismiss (ECF No. 9) Plaintiff's First Amended Complaint (“FAC,” ECF No. 6) is DENIED.

BACKGROUND

This litigation stems from the purchase of a product named “Ursa Major Fantastic Face Wash (2 fl. oz.)” (the “Product”) which Plaintiff alleges was falsely represented as “discounted.” See FAC ¶¶ 9–10. Plaintiff alleges she purchased the Product from Defendant's website on March 3, 2025, when the Product was being sold for $10.50, with a “strike-though reference price” of $15.00 listed next to it. Id. ¶ 10. Plaintiff contends that below the two price amounts, were the words “Save $4.50 (30% off).” Id. Plaintiff further alleges that between the dates of November 3, 2024, and April 23, 2025, the Product was offered on Defendant's website for the same $10.50 price with a $15.00 strike-through price next to it at least nineteen times. Id. ¶¶ 14–16. Plaintiff contends that the $15.00 strike-through price is a “patently deceptive practice” intended to “mislead customers into believing that they are getting a bargain” and provide “a false sense of urgency to consumers.” Id. ¶¶ 18, 22. Plaintiff alleges that this is misleading because “Defendant's perpetual sales of the Product (and other products) have caused its purported sales price to be no different from the prices at which it regularly sells the Product (and other products).” Id. ¶ 20. Therefore, Plaintiff concludes that “Defendant does not ordinarily sell its Product (or other products) at the advertised regular prices in violation of section 17500 of California's Business and Professions Code.” Id.

Plaintiff brings her action on behalf of a class: “All persons who purchased one or more of Defendant's products from Defendant's Website while in California within the statute of limitations period at a purported discount from a higher reference price.” Id. ¶¶ 37–44. Plaintiff argues that Defendant's ongoing “sale” violates California's False Advertising Law (“FAL”), Cal. Bus. & Prof. Code § 17500, and the Consumers Legal Remedies Act (“CLRA”), Cal. Civil Code §§ 1770(a)(9) and 1770(a)(13).

REQUESTS FOR JUDICIAL NOTICE

Defendant requests judicial notice of the “Product listing webpages [and their contents] from THG Beauty, the Product manufacturer (Ursa Major), and various other third-party retailers,” set forth in Exhibits 1 through 9 and 12 through 35 of the Bustillos Declaration. ECF No. 9-3 (“Def. RJN”) at 2–6. Defendant also seeks judicial notice or incorporation by reference of screenshots of the Product page on the Dermstore website as of February 21, 2025, ECF No. 9-1 (“Bustillos Decl.”), Exs. 10–11 (“Image A”), and as of March 19, 2025, ECF No. 9-2 (“Bonner Decl.”), Ex. 1 (“Image B”). Mot. at 11–12. Plaintiff requests judicial notice of several complaints in cases cited by Defendant. ECF No. 12-1 (“P. RJN”) at 1.

I. Legal Standard

“Generally, district courts may not consider material outside the pleadings when assessing the sufficiency of a complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018) (citing Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001), overruled on other grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002)). “There are two exceptions to this rule: the incorporation-by-reference doctrine, and judicial notice under Federal Rule of Evidence 201.” Id. Both exceptions “permit district courts to consider materials outside a complaint.” Id. “[T]he court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b).

Under the incorporation by reference doctrine, a court may “take into account 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.’ ” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (alteration in original) (quoting In re Silicon Graphics Inc. Secs. Litig., 183 F.3d 970, 986 (9th Cir. 1999), as amended (Aug. 4, 1999)). A defendant may seek to incorporate a document into the complaint in two ways. First, “if the plaintiff refers extensively to the document,” it may be incorporated by reference. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Second, a document may be incorporated by reference if “the document forms the basis of the plaintiff's claim.” Id. A document forms the basis of the plaintiff's claim when “the claim necessarily depend[s]” on the document. Khoja, 899 F.3d at 1002 (citing Knievel, 393 F.3d at 1076). “The defendant may offer such a document, and the district court may treat such a document as part of the complaint and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6).” Ritchie, 342 F.3d at 908. However, “[t]he incorporation-by-reference doctrine does not override the fundamental rule that courts must interpret the allegations and factual disputes in favor of the plaintiff at the pleading stage.” Khoja, 899 F.3d at 1014.

II. Website Screenshots: Exhibits 1–9 and 12–35

Defendant requests judicial notice of Exhibits 1–9 and 12–35, which are various screenshots of webpages from THG Beauty, the Product manufacturer (Ursa Major), and various other third-party retailers. See Def. RJN.; ECF No. 13-2. Courts can generally take judicial notice of websites and their contents. Threshold Enters. Ltd. v. Pressed Juicery, Inc., 445 F. Supp. 3d 139, 146 (N.D. Cal. 2020). Plaintiff challenges the usefulness of these screenshots but does not contest their accuracy. See generally Opp'n. Since the screenshot's sources “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned,” the Court GRANTS Defendant's request to take judicial notice of the existence of the websites depicted in Exhibits 1–9 and 11–35, but not for the truth of any of their content. See Fed. R. Evid. 201(b); UL LLC v. Space Chariot Inc., 250 F. Supp. 3d 596, 604, n.2 (C.D. Cal. 2017) (“Courts have taken judicial notice of the contents of web pages available through the Wayback Machine as facts that can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” (citation omitted)); Witt v. Bristol Farms, No. 21-CV-411-BAS-AGS, 2022 WL 6258296, at *5 (S.D. Cal. Oct. 7, 2022) (“Although courts may take judicial notice of ‘publicly accessible websites,’ ․ they may do so only to establish ‘the existence of the website in the public realm’; it may not take judicial notice that the contents of the underlying medium posted to a website are true.” (quoting Farrell v. Boeing Emps. Credit Union, 761 F. App'x 682, 682, n.1 (9th Cir. 2019))).

III. The Product's Listing Page: Images A and B

Defendant additionally requests judicial notice, or incorporation by reference, of Images A and B, screenshots of the Product's listing page. See Mot. at 3, n.2; 6, n.3. These screenshots include a button on the Product's listing page titled “Save 30%,” placed under the “ADD TO CART” button. Id. at 4. When clicked, Defendant alleges a text box appears containing “Save 30% on select products. Discount applied to MSRP. Offer valid for a limited time only.” Id. at 5. Plaintiff does not admit that this button was present at the time of Plaintiff's purchase, instead stating that the button was “purportedly available.” See Opp'n at 1. There is no reference to this button in the FAC, including in the screenshot provided by Plaintiff of the Product's listing on Defendant's website. See generally FAC; see FAC ¶ 4. The FAC's screenshot is cropped above where the button would allegedly appear. See id. ¶ 4. For the same reasons above, the Court GRANTS Defendant's request for judicial notice as to the existence and content of these website screenshots but not their truth. Further, the Court cannot take judicial notice that this button existed at the time Plaintiff accessed the website as that is a factual issue improper for the motion to dismiss stage.¹

IV. State Court Complaints

Plaintiff seeks judicial notice of three complaints filed in cases cited by Defendant. These are: (1) an August 11, 2023, complaint filed in the Los Angeles County Superior Court and re-filed on September 21, 2023, in the United States District Court for the Central District of California in Purcelley v. Ekster Inc., No. 23-CV-7908, ECF No. 1-1 (C.D. Cal.) (ECF No. 12-1, Ex. 1); (2) an April 12, 2024, first amended class action complaint filed in the United States District Court for the Central District of California in Purcelley v. Ekster Inc., No. 23-CV-7908, ECF No. 49 (C.D. Cal.) (ECF No. 12-1, Ex. 2); and (3) a February 1, 2016, third amended class action complaint filed in the United States District Court for the Central District of California in Sperling v. Stein Mart, Inc., No. 15-CV-1411-BRO-KK, ECF No. 36 (C.D. Cal.) (ECF No. 12-1, Ex. 3). The Court GRANTS Plaintiff's RJN, as “court filings and orders from other proceedings are proper subjects of judicial notice.” Sierra v. Costco Wholesale Corp., 630 F. Supp. 3d 1199, 1208 (N.D. Cal. 2022).

MOTION TO DISMISS

I. Legal Standards

A. Federal Rule of Civil Procedure 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint “fail[s] to state a claim upon which relief can be granted.” To survive a 12(b)(6) motion, “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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is facially plausible when the facts pled “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. That is not to say that the claim must be probable, but there must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. Facts “ ‘merely consistent with’ a defendant's liability” fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Though this plausibility standard “does not require ‘detailed factual allegations,’ ․ it [does] demand[ ] more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). In other words, a complaint will not suffice “if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Id. (alteration in original) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Put differently, “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

Review under Rule 12(b)(6) requires a context-specific analysis involving the Court's “judicial experience and common sense.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. In performing that analysis, “a district court must accept as true all facts alleged in the complaint, and draw all reasonable inferences in favor of the plaintiff.” Wi-LAN Inc. v. LG Elecs., Inc., 382 F. Supp. 3d 1012, 1020 (S.D. Cal. 2019). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ ” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (second alternation in original). If a complaint does not survive Rule 12(b)(6), a court grants leave to amend unless it determines that no modified contention “consistent with the challenged pleading could ․ possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986).

B. Federal Rule of Civil Procedure 9(b)

Pursuant to Federal Rule of Civil Procedure 9(b), courts apply a heightened pleading standard to actions that sound in fraud. See Fed. R. Civ. P. 9(b) (“In alleging fraud ․ a party must state with particularity the circumstances constituting fraud or mistake.”); see also Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (“Averments of fraud must be accompanied by ‘the who, what, when, where, and how’ of the misconduct charged.”). Rule 9(b) is not limited to claims for fraud itself; rather, it applies if a claim is “grounded in” or “sounds in” fraud. See, e.g., Vess, 317 F.3d at 1103–04 (“In cases where fraud is not a necessary element of a claim, a plaintiff may choose nonetheless to allege in the complaint that the defendant has engaged in fraudulent conduct ․ and rely entirely on that course of conduct as the basis of a claim. In that event, the claim is said to be ‘grounded in fraud’ or to ‘sound in fraud,’ and the pleading of that claim as a whole must satisfy the particularity requirement of Rule 9(b).”). Nonetheless, the Ninth Circuit also has cautioned that “[t]he Supreme Court has narrowly construed Rule 9(b) to apply only to the types of actions enumerated in the rule—those alleging fraud or mistake—and has not extended the heightened pleading standard to other legal theories.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1103 (9th Cir. 2008) (citation omitted).

When Rule 9(b) applies, allegations of fraud must be “specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong.” Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985); see also Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997) (noting that particularity requires plaintiff to allege the “who, what, when, where, and how” of the alleged fraudulent conduct). When the heightened pleading standard of Rule 9(b) does not apply, however, the complaint need only satisfy the notice pleading standard of Rule 8(a) to survive a Rule 12(b)(6) motion to dismiss. See Mendiondo, 521 F.3d at 1103–04 (citation omitted).

II. Analysis

Defendant seeks dismissal of Plaintiff's claims with prejudice for failure to state a claim. See Mot. at 21. Specifically, Defendant contends that the Product's price reduction was “accurately based on a discount from the MSRP,”² the “pricing was objectively true because other online retailers sold the product at MSRP,” Plaintiff did not claim that “the MSRP was inflated or inaccurate,” and Plaintiff relied solely on price to conclude that the “advertisement was false or misleading.” See generally Mot.

California's False Advertising Law prohibits any unfair, deceptive, untrue, or misleading advertising. Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008) (citing Cal. Bus. & Prof. Code § 17500). Claims under California false advertising statutes are measured against a reasonableness standard regarding whether “members of the public are likely to be deceived.” Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir. 1995) (quoting Bank of the W. v. Superior Ct., 2 Cal. 4th 1254, 1267, 10 Cal.Rptr.2d 538, 833 P.2d 545 (1992)) (internal citations omitted); see also Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496, 506–07, 129 Cal.Rptr.2d 486 (2003) (“[U]nless the advertisement targets a particular disadvantaged or vulnerable group, it is judged by the effect it would have on a reasonable consumer.”). The question of whether a practice is sufficiently deceptive will “usually be a question of fact not appropriate for decision on [a motion to dismiss].” Williams, 552 F.3d at 938. Further, the California Supreme Court emphasizes “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.’ ” Kasky v. Nike, Inc., 27 Cal. 4th 939, 951, 119 Cal.Rptr.2d 296, 45 P.3d 243 (2002) (quoting Leoni v. State Bar, 39 Cal. 3d 609, 626, 217 Cal.Rptr. 423, 704 P.2d 183 (1985)). It is up to the plaintiff to “ ‘set forth what is false or misleading about a statement, and why it is false.’ ” Branca v. Nordstrom, Inc., No. 14-CV-2062-MMA (JMA), 2015 WL 10436858, at *7 (S.D. Cal. Oct. 9, 2015) (quoting In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1548 (9th Cir. 1994)).

California's Consumers Legal Remedies Act prohibits “unfair methods of competition and unfair or deceptive acts” that are “intended to result or that results in the sale ․ of goods.” Cal. Civ. Code § 1770(a). The unfair practices relevant to the claims at issue are “advertising goods or services with intent not to sell them as advertised” and “making false or misleading statements of fact concerning reasons for, existence of, or amounts of, price reductions.” Id. §§ 1770(a)(9), 1770(a)(13); see also Hinojos v. Kohl's Corp., 718 F.3d 1098, 1107 (9th Cir. 2013), as amended on denial of reh'g and reh'g en banc (July 8, 2013) (finding that consumers suffer actionable damage under the CLRA when they purchase an item based on a false discount). “In one form of false price comparison, courts have found that advertising a struck through price as a ‘former price comparison’ may constitute a deceptive advertising practice, particularly where the defendant had not previously offered the product at the enumerated former price.” Hong v. RugsUSA, LLC, 810 F. Supp. 3d 1050, 1059 (N.D. Cal. 2025) (citing Inga v. Bellacor.com, Inc., No. 19-CV-10406-MWF-MRW, 2020 WL 5769080, at *3 (C.D. Cal. July 17, 2020)). Claims under the CLRA are governed by the same “reasonable consumer” test as claims under the FAL: the challenged practice must be likely to deceive an ordinary consumer acting reasonably under the circumstances. Williams, 552 F.3d at 938.

Claims under the FAL or CLRA are subject to Rule 9(b)’s heightened pleading standard when the allegations describe a fraudulent misrepresentation. See Ostrovskaya v. St. John Knits, Inc., No. CV 21-3243-DMG (PVCx), 2022 WL 2102895, at *2 (C.D. Cal. Mar. 31, 2022) (citing Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009)). However, the heightened pleading standard may be eased “as to matters within the opposing party's knowledge.” See id. (citing Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 540 (9th Cir. 1989)). When the opposing party is familiar with the information, a pleading is sufficient under Rule 9(b) “if it identifies the circumstances constituting fraud so that a defendant can prepare an adequate answer from the allegations.” Moore, 885 F.2d at 540. Nonetheless, a plaintiff must still plead available facts with particularity. Kearns, 567 F.3d at 1127.

A. Reasonable Consumer Test

Defendant first argues that Plaintiff's FAL and CLRA claims fail because Dermstore's website clearly disclosed the Product's price reduction, and this price reduction was accurately based on a discount from the MSRP. Mot. at 11. Defendant contends that “as a matter of law, there is nothing false or misleading about a retailer advertising a product at a price that is accurately discounted from MSRP, especially when both THG Beauty (through Dermstore) and at least [thirteen] other online retailers sell the Product at the same legitimate MSRP.” Id. at 12; see also Sperling v. Stein Mart, Inc., 291 F. Supp. 3d 1076, 1084–87 (C.D. Cal. 2018). In support, Defendant points to the “Save 30%” button located in small text below the “Add to Cart” button, which when clicked, pops up a disclaimer stating: “Save 30% on select products. Discount applied to MSRP. Offer valid for a limited time only.” See Mot. at 4–5.

Plaintiff argues that the challenged deceiving conduct is not that the $15 was or was not the MSRP; rather, the challenged conduct is that Defendant artificially had a “sale” from November 3, 2024, through at least April 23, 2025, and Plaintiff reasonably believed that Defendant offered the product, at some point, for $15. Opp'n at 10–11. Plaintiff contends that she has sufficiently alleged that Defendant's strike-through pricing is likely to mislead a reasonable consumer. Id. By displaying a $10.50 sale price next to a crossed-out $15 price, a reasonable consumer could be lead to believe that Defendant has previously sold the Product for $15, and that the sale was short lived, thereby creating a sense of urgency in the consumer. Id.

The Court agrees with Plaintiff. Plaintiff has adequately alleged that, based on the advertisement, a reasonable consumer could believe that the reference price referred to the former price that Defendant offered for the Product. Thus, when a consumer saw the “sale,” they would be pressured into purchasing the Product when they otherwise wouldn't, even though the Product had been on “sale” from November 3, 2024, through April 23, 2025.

First, while Defendant is correct that this is not an exclusive product case,³ the issue is whether Plaintiff adequately alleged that Defendant's advertisement was false, misleading, or likely to deceive a reasonable consumer. See generally FAC; see also Williams, 552 F.3d at 938. The Court agrees with Defendant that “[p]rice tags suggesting that consumers compare the product's price to the manufacturer's suggested retail price are not inherently false or deceptive.” Sperling v. DSWC, Inc., 699 F. App'x 654, 655 (9th Cir. 2017). However, the Court finds that Plaintiff has adequately alleged how the “comparative reference prices were actually false or misleading” as Plaintiff has sufficiently alleged that the reference price is one that Defendant rarely, if ever, has offered for the Product, making the “sale” plausibly misleading to consumers. Stein Mart, 291 F. Supp. 3d at 1085; 16 C.F.R. § 233.1(a) (“If, on the other hand, the former price being advertised is not bona fide but fictitious—for example, where an artificial, inflated price was established for the purpose of enabling the subsequent offer of a large reduction—the ‘bargain’ being advertised is a false one; the purchaser is not receiving the unusual value he expects. In such a case, the ‘reduced’ price is, in reality, probably just the seller's regular price.”); Hong, 810 F. Supp. 3d at 1061 (“[T]he CLRA [and section 17500] prohibit[ ] any false or misleading statements concerning the ‘existence of, or amounts of price reductions,’ not only statements where the price to which the reduction is applied is out of line with the prevailing market price specifically.”) (quoting Cal. Civ. Code § 1770(a)(9)).

Here, Plaintiff alleges that the “sale” value of $10.50 was offered nineteen times between November 3, 2024, and April 23, 2025, that the Product was being sold for $10.50, with a “strike-though reference price” of $15.00 listed next to it, and that below the two price amounts, were the words “Save $4.50 (30% off). FAC ¶¶ 9–18. The Court finds these allegations sufficient to demonstrate that a reasonable consumer could be misled by Defendant's advertisement. See Krantz v. Old Copper Co., Inc., 794 F. Supp. 3d 724, 740 (C.D. Cal. 2025) (“While Defendants did not explicitly identify the strikethrough price as a ‘former’ price, ‘[a] reasonable consumer does not need language such as, “Formerly $9.99, now 40% Off $9.99” ․ to reasonably understand “40% Off” to mean 40% off the former price of the product.’ ” (quoting Vizcarra v. Michaels Stores, Inc., 710 F. Supp. 3d 718, 725 (N.D. Cal. 2024))). The Defendant would have the Court, on a motion to dismiss, find that the “button” below the “Add to Cart” icon precludes Plaintiff's belief that the reference price was a former price offered by Defendant. See Mot. at 14–15. However, whether the button disclosing that $15 was the MSRP is sufficient to remedy any potential consumer confusion is not properly considered on a motion to dismiss. See Williams, 552 F.3d at 938.

At the pleadings stage, Plaintiff is only required to demonstrate that “members of the public are likely to be deceived.” Kasky, 27 Cal. 4th at 951, 119 Cal.Rptr.2d 296, 45 P.3d 243; Vizcarra, 710 F. Supp. 3d at 728 (“[T]he UCL and FAL ‘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. Thus, to state a claim under ․ the false advertising law ․ it is necessary only to show that members of the public are likely to be deceived.’ ” (quoting Kasky, 27 Cal. 4th at 951, 119 Cal.Rptr.2d 296, 45 P.3d 243)). Here, the bulk of Plaintiff's allegations “are directed at the theory that [Defendant's] ‘perpetual sales’ have caused its purported sale prices to be no different from the prices at which it regularly sells its products.” Knapp v. Art.com, Inc., No. 16-CV-00768-WHO, 2016 WL 3268995, at *4 (N.D. Cal. June 15, 2016). “That is, [Plaintiff's] principal theory of liability appears to be that [Defendant] does not ordinarily sell its products at the advertised regular prices (in violation of section 17500), not that the advertised regular prices are out of step with prevailing market prices (in violation of section 17501).”⁴ Id.; Spann v. J.C. Penney Corp., 307 F.R.D. 508, 528–29 (2015), modified, 314 F.R.D. 312 (C.D. Cal. 2016) (“In other words, even if it were determined that defendant's advertising did not violate § 17501, it could still be liable under the CLRA, the UCL and the more general provision of the FAL, [section 17500].”).

Therefore, it is plausible at this stage that a reasonable consumer would believe that the reference price was a former price offered for the Product by Defendant, making the offered price truly a discount, not simply what Defendant regularly sells the Product for. See Anyasulu v. Tempur Sealy Int'l, Inc., 745 F. Supp. 3d 913, 921–22 (N.D. Cal. 2024) (stating how a court may grant a motion to dismiss based on the reasonable consumer standard “only if it determines that [the plaintiff] cannot possibly show a reasonable consumer would be deceived by the challenged sales practices”). Plaintiff has alleged nineteen instances covering a period of over five months where Defendant offered the product for $10.50. FAC ¶¶ 14–16. Based on these allegations, it is unclear whether Defendant ever actually offered the product at the MSRP value or intentionally chose to discount the product at the purported “sale” value consistently over the relevant period to mislead consumers. See Hampton v. Caraway Home, Inc., No. 25-CV-3489-MRA-MAR, 2025 WL 2994565, at *3–4 (C.D. Cal. Sept. 12, 2025) (denying motion to dismiss because courts “routinely” deny motions based on allegations that products on the defendant's website “listed crossed-out prices followed by a percentage discount and a new price” such that “it is plausible a reasonable consumer could view the prices as being deceptive” (quoting Munning v. Gap, Inc., No. 16-CV-3804-TEH, 2016 WL 6393550, at *5 (N.D. Cal. Oct. 28, 2016))).

Second, because Plaintiff's misleading price comparison claim is based on an understanding that the reference price was based on Defendant's former price, not comparative prices, Plaintiff was not required to compare the Product price to competitors’ prices to state a claim. See Krantz, 794 F. Supp. 3d at 740–41 (rejecting the same argument made by Defendant “[b]ecause [the plaintiff's] claims [were] premised on former price comparisons rather than competitor comparisons” so the plaintiff “did not need to identify prices charged by competitors to plausibly allege that the pricing comparisons ․ would be misleading to a reasonable consumer”); see also Vizcarra, 710 F. Supp. 3d at 729 (“The non-Section 17501 FAL claims ․ do not necessarily depend on what prices other retailers charge for the products [the defendant] sells. [The plaintiff] therefore does not need to allege pricing at other retailers in order to adequately state a claim that [the defendant's] own advertising is false, misleading, deceptive, or confusing.”).

Therefore, the Court finds that Plaintiff's allegations are sufficient to state a claim. See Jacobs v. La-Z-Boy Inc., No. 24-CV-4446-JLS-AS, 2024 WL 5194976, at *3 (C.D. Cal. Nov. 14, 2024) (denying a motion to dismiss because the plaintiff “sufficiently allege[d] that the strikethrough benchmark prices [were] rarely, if ever, the price at which [the d]efendant offer[ed] or [sold] its products” by “point[ing] to the results of its pre-suit investigation conducted from February 2024 to May 2024 in which near-daily monitoring of [items sold by the defendant] revealed that the products were perpetually discounted and remained ‘on sale’ for virtually the entire tracking period” (internal quotation marks omitted)); Phillips v. Brooklyn Bedding LLC, No. 23-CV-3781-RFL, 2024 WL 2830663, at *3–5 (N.D. Cal. Mar. 28, 2024) (denying motion to dismiss on similar grounds).

B. Plaintiff's FAC Under Rule 9(b)

Defendant further contends that Plaintiff has not alleged sufficient facts to satisfy Rule 9(b). See Mot. at 16–17; see also Purcelley v. Ekster Inc., No. 23-CV-07908, 2024 WL 2107710, at *4, 2024 U.S. Dist. LEXIS 62589, at *12 (C.D. Cal. Apr. 4, 2024) (“[I]n ‘non-exclusive product cases’ ․ plaintiffs must plead facts showing that it is plausible that the reference price is misleading.”). The Court disagrees.

Plaintiff's theory of liability is that Defendant's use of a strike-through price of $15.00, placed directly next to the phrase “Save $4.50 (30% off),” plausibly misled consumers into believing that Defendant previously sold the Product at that higher price. See FAC ¶ 10. As discussed above, taking the allegations in the light most favorable to Plaintiff, she has plausibly alleged that a reasonable consumer could interpret this specific visual arrangement as a representation of Defendant's own former price rather than an MSRP or a competitor's price. Whether a reasonable consumer would actually be deceived is a question of fact “not appropriate for decision on [a motion to dismiss].” Williams, 552 F.3d at 938; see Calcagno v. Kipling Apparel Corp., No. 23-CV-2247-BAS-BLM, 2024 WL 3261205, at *6 (S.D. Cal. July 1, 2024) (denying motion to dismiss, finding the plaintiff met her burden under Rule 9(b), and stating that it improper to consider whether a reasonable consumer would be misled by the advertising language on a motion to dismiss); Freeman v. Indochino Apparel, Inc., 443 F. Supp. 3d 1107, 1111–12 (N.D. Cal. 2020) (declining to find crossed through prices were, as a matter of law, not misleading).

Furthermore, Plaintiff's allegations satisfy the heightened pleading requirements of Rule 9(b). To survive dismissal, a plaintiff must plead the “who, what, when, where, and how” of the misconduct. Kearns, 567 F.3d at 1124. Plaintiff has done so here. The FAC clearly identifies the “who” as Defendant, the “where” as the Product listing on Defendant's website, the “when” as on or around March 3, 2025, and the “what and how” as the display of an allegedly false strike-through price to induce Plaintiff's purchase of the Product. See FAC ¶¶ 8–10, 12–16. Plaintiff elaborates on how the advertisement was misleading, alleging that consumers are misled into believing there is a “substantial discount,” consumers are “provided a false sense of urgency,” and the advertisement is a “phantom markdown.” Id. ¶¶ 18–22. Accordingly, Plaintiff has alleged sufficient facts to “give [the Defendant] notice of the particular misconduct which is alleged.” See Semegen, 780 F.2d at 731; see also Munning, 2016 WL 6393550, at *5 (“By alleging that products on Defendants’ websites listed crossed-out prices followed by a percentage discount and a new price, Plaintiff has provided enough facts such that it is plausible a reasonable consumer could view the prices as being deceptive.”); Orona v. Patagonia, Inc., 832 F. Supp. 3d 1126, 1132, 1138–39 (S.D. Cal. 2026) (denying motion to dismiss as to the FAL and CLRA claims where the plaintiff alleged that the defendant engaged “in deceptive pricing through its marketing strategy known as ‘strikethrough pricing’ ” where the plaintiff maintained that the “sales are false and deceptive because [the defendant] rarely, if ever, offers the products for the reference price,” instead “the ‘sale’ price is the price at which [the defendant] regularly sells the product”).

C. Reliance on Price Alone

Defendant argues Plaintiff “relies solely on the Product's price ․ to claim that the advertisement on the Dermstore website was false or misleading.” Mot. at 19. Defendant contends that a plaintiff cannot solely rely on the price of a product to make inferences or assumptions about the product. Mot. at 19–21; Nguyen v. Lovesac Co., No. 24-CV-1293-TLN-JDP, 2025 WL 950511, at *6 (E.D. Cal. Mar. 28, 2025). This argument fails because Plaintiff does not rely solely on the Product's price. Instead, Plaintiff relies on the Product's strike-through price, the words “Save $4.50,” and the caption “(30% off).” See FAC ¶ 10. Plaintiff relies on the advertising statements made by Defendant rather than information she assumed about the Product based on the price. See generally id.

CONCLUSION

In light of the foregoing, the court DENIES Defendant's Motion to Dismiss (ECF No. 15). Defendant SHALL FILE its answer to the FAC within thirty (30) days of the electronic docketing of this Order.

IT IS SO ORDERED.

FOOTNOTES

1.   Image A is a screenshot of the Product page on February 21, 2025. Mot. at 11, n.2. Image B is a screenshot of the Product page on March 19, 2025. Id. Plaintiff purchased the product on March 3, 2025. Id.

2.   MSRP is a common abbreviation of “Manufacturer's Suggested Retail Price.” See Collins Dictionary, Definition of ‘MSRP’ (2026), https://www.collinsdictionary.com/us/dictionary/english/msrp.

3.   “In exclusive product cases, a store, often an outlet store, sells a lower-price, different version of a product sold in a traditional retail store. The outlet uses the price of the product made for the retail store as a comparative reference price on price tags. However, the actual product being sold in the outlet is made exclusively for the outlet and is never sold for the comparative reference price at a traditional retail store. In those cases, courts generally find that a plaintiff can proceed with his or her claims.” Stein Mart, 291 F. Supp. 3d at 1084 (citations omitted). “In non-exclusive product cases, on the other hand, more than one retailer offers the product at issue for sale. Because other retailers offer the same product for sale, there are legitimate prices to which to compare the defendant's comparative reference price. In those cases, courts tend to reject claims unless the plaintiff establishes that the comparative reference price is misleading.” Id. Therefore, the Court agrees with Defendant that this is a non-exclusive product case as other retailers sell the Product. See Mot. at 12–13.

4.   Plaintiff has expressly disclaimed any theory of liability predicated on section 17501 of the Business and Professions Code. FAC ¶ 48.

Janis L. Sammartino, United States District Judge