Case 2:19-cv-06780-JWH-AS Document 77 Filed 12/16/20 Page 1 of 9 Page ID #:1571
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`UNITED STATES DISTRICT COURT
`FOR THE CENTRAL DISTRICT OF CALIFORNIA
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`JAMES WEEKS, individually and on
`behalf of all others situated,
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`Plaintiff,
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`v.
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`HOME DEPOT U.S.A., Inc., a
`Delaware corporation,
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`Defendant.
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` Case No. 2:19-cv-06780-JWH (ASx)
`
`
`ORDER GRANTING
`DEFENDANT’S MOTION TO
`DISMISS PLAINTIFF’S SECOND
`AMENDED COMPLAINT [69]
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`Case 2:19-cv-06780-JWH-AS Document 77 Filed 12/16/20 Page 2 of 9 Page ID #:1572
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`Before the Court is the motion of Defendant Home Depot U.S.A., Inc. to
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`dismiss1 the Second Amended Complaint.2 The Court finds this matter
`appropriate for resolution without a hearing. See Fed. R. Civ. P. 78; L.R. 7-15.
`After considering all papers filed in support and in opposition, the Court
`GRANTS Home Depot’s Motion.
`I. BACKGROUND
`In August 2019, Plaintiff James Weeks filed a Complaint against Home
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`Depot.3 Three months later, Mr. Weeks filed a First Amended Complaint.4 In
`January 2020, the Court denied Home Depot’s motion to dismiss the FAC
`without prejudice “for improperly referencing materials outside the
`pleadings.”5 In September 2020, the Court granted in part and denied in part
`Home Depot’s second motion to dismiss the FAC.6
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`On October 2, Mr. Weeks filed his SAC, alleging a single violation of
`California’s Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200 et seq.7
`Home Depot moved to dismiss on October 16.8 Mr. Weeks opposed on
`October 23,9 and Home Depot replied on October 30.10
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`1
`Def.’s Mot. to Dismiss Pl.’s Second Am. Compl. (the “Motion”) [ECF
`No. 69].
`2
`Second Am. Compl. (the “SAC”) [ECF No. 67].
`3
`Compl. [ECF No. 1].
`4
`First Am. Compl. (the “FAC”) [ECF No. 18.]
`5
`Def.’s Am. Mot. to Dismiss [ECF No. 31]; Order [ECF No. 37].
`6
`Def.’s Mot. to Dismiss [ECF No. 38]; Order (the “FAC Dismissal
`Order”) [ECF No. 65].
`7
`See SAC.
`8
`See Motion.
`9
`Pl.’s Opp’n to the Motion (the “Opposition”) [ECF No. 71].
`10
`Def.’s Reply in Supp. of the Motion (the “Reply”) [ECF No. 74.]
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`Case 2:19-cv-06780-JWH-AS Document 77 Filed 12/16/20 Page 3 of 9 Page ID #:1573
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`II. FACTUAL ALLEGATIONS
`Mr. Weeks alleges the following facts, which the Court assumes to be true
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`for the purposes of this motion. See, e.g., Cahill v. Liberty Mut. Ins. Co., 80 F.3d
`336, 337–38 (9th Cir. 1996) (on motion to dismiss for failure to state a claim,
`“[a]ll allegations of material fact are taken as true and construed in the light
`most favorable to the nonmoving party”).
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`Home Depot is a home improvement retail giant that sells the glyphosate-
`based herbicide Roundup.11 California has classified glyphosate as a chemical
`known to cause cancer. Glyphosate’s safety is widely debated, and multiple
`countries and California cities have banned it.12 Roundup’s manufacturer,
`Monsanto, is currently settling Roundup-based personal injury claims worth
`several billion dollars. See In re: Roundup Products Litigation, MDL No. 2741
`(N.D. Cal.). Roundup also contains polyethoxylated tallow amine (“POEA”).13
`Two studies have suggested that POEA increases the toxicity of glyphosate.14
`Mr. Weeks is a California resident.15 He has purchased Roundup several
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`times a year over the past decade, most recently on April 19, 2019, from a Home
`Depot store in Oxnard, California.16 Home Depot has not at any time provided
`him with “any information regarding the carcinogenic nature of Roundup.”17
`Mr. Weeks relied on Home Depot’s warnings, or lack thereof. He would not
`have purchased Roundup if he had been aware of its carcinogenic properties.18
`Mr. Weeks would like to purchase Roundup from Home Depot in the future if
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`11
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`SAC ¶¶ 1 & 14.
`Id. at ¶¶ 4 & 31-57.
`Id. at ¶ 22.
`Id. at ¶¶ 42 & 45.
`Id. at ¶ 13.
`Id. at ¶ 88.
`Id. at ¶ 89.
`Id. at ¶¶ 91 & 92.
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`Case 2:19-cv-06780-JWH-AS Document 77 Filed 12/16/20 Page 4 of 9 Page ID #:1574
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`its formula changes, but he can no longer rely on Home Depot’s warning
`labels.19
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`III. LEGAL STANDARD
`Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may
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`make a motion to dismiss for failure to state a claim upon which relief can be
`granted. Rule 12(b)(6) must be read in conjunction with Rule 8(a), which
`requires a “short and plain statement of the claim showing that a pleader is
`entitled to relief,” in order to give the defendant “fair notice of what the claim is
`and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S.
`544, 555 (2007). When evaluating a Rule 12(b)(6) motion, a court must accept
`all material allegations in the complaint and any reasonable inferences to be
`drawn from them as true and must construe them in the light most favorable to
`the non-moving party. See Doe v. United States, 419 F.3d 1058, 1062 (9th Cir.
`2005); ARC Ecology v. U.S. Dep’t of Air Force, 411 F.3d 1092, 1096 (9th Cir.
`2005); Moyo v. Gomez, 32 F.3d 1382, 1384 (9th Cir. 1994).
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`“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
`not need detailed factual allegations, a plaintiff’s obligation to provide the
`‘grounds’ of his ‘entitlement to relief’ requires more than labels and
`conclusions, and a formulaic recitation of the elements of a cause of action will
`not do.” Twombly, 550 U.S. at 555 (citations omitted). Rather, the allegations in
`the complaint “must be enough to raise a right to relief above the speculative
`level.” Id.
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`To survive a motion to dismiss, a plaintiff must allege “enough facts to
`state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570;
`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not
`akin to a ‘probability requirement,’ but it asks for more than a sheer possibility
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`19
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`Id. at ¶ 93.
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`Case 2:19-cv-06780-JWH-AS Document 77 Filed 12/16/20 Page 5 of 9 Page ID #:1575
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`that a defendant has acted unlawfully. Where a complaint pleads facts that are
`‘merely consistent with’ a defendant’s liability, it stops short of the line between
`possibility and plausibility of ‘entitlement to relief.’” Iqbal, 556 U.S. at 678
`(quoting Twombly, 550 U.S. at 556). The Ninth Circuit has clarified that (1) a
`complaint must “contain sufficient allegations of underlying facts to give fair
`notice and to enable the opposing party to defend itself effectively,” and
`(2) “the factual allegations that are taken as true must plausibly suggest an
`entitlement to relief, such that it is not unfair to require the opposing party to be
`subjected to the expense of discovery and continued litigation.” Starr v. Baca,
`652 F.3d 1202, 1216 (9th Cir. 2011).
`IV. DISCUSSION
`California’s Unfair Competition Law prohibits “any unlawful, unfair or
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`fraudulent business act or practice and unfair, deceptive, untrue or misleading
`advertising.” Cal. Bus. & Prof. Code § 17200. “Each prong of the UCL is a
`separate and distinct theory of liability; thus, the ‘unfair’ practices prong offers
`an independent basis for relief.” Lozano v. AT & T Wireless Servs., Inc., 504 F.3d
`718, 731 (9th Cir. 2007). Mr. Weeks alleges that Home Depot’s business
`practices were unfair.20 Home Depot argues that Mr. Weeks has failed to plead
`this UCL violation adequately.21
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`Analyzing the sufficiency of Mr. Weeks’s claim first requires
`understanding exactly what that claim is. Mr. Weeks’s claim is quite narrow.
`Mr. Weeks chose not to bring his claim under California’s Safe Drinking Water
`and Toxic Enforcement Act of 1986 (familiarly known as Proposition 65)22—
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`20
`See, e.g., SAC ¶ 1.
`21 Motion 15-16.
`22
`“No person in the course of doing business shall knowingly and
`intentionally expose any individual to a chemical known to the state to cause
`cancer or reproductive toxicity without first giving clear and reasonable warning
`to such individual . . . .” Cal. Health & Safety Code § 25249.6.
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`Case 2:19-cv-06780-JWH-AS Document 77 Filed 12/16/20 Page 6 of 9 Page ID #:1576
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`which tightly controls exposure to known carcinogens in California and covers
`glyphosate claims—likely to avoid its stringent notice requirements.23 However,
`several “California courts have held that plaintiffs cannot plead around the
`notice requirement by characterizing their claim as a UCL claim.” Sciortino v.
`Pepsico, Inc., 108 F. Supp. 3d 780, 790 (N.D. Cal. 2015) (collecting cases). The
`FAC Dismissal Order, therefore, dismissed Mr. Weeks’s FAC with leave to
`amend to provide him with the opportunity to “allege facts sufficient to state a
`claim independent of Proposition 65.”24
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`Mr. Weeks attempts to plead around Proposition 65 by arguing that he is
`not attacking Home Depot’s failure to post warnings about a known carcinogen
`(glyphosate), as this would fall within Proposition 65.25 Rather, he is attacking
`Home Depot’s failure to post warnings about the carcinogenic properties of
`Roundup as a whole,26 as the State of California has not recognized Roundup’s
`formula of glyphosate and POEA as a carcinogen separate from its glyphosate
`alone, and, therefore, Proposition 65 does not cover the combination of
`glyphosate and POEA.27
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`Here, however, Mr. Weeks runs into trouble. California has not
`recognized Roundup’s formula of glyphosate and POEA as a carcinogen
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`23
`FAC Dismissal Order 13.
`24
`Id. at 14.
`25
`California recognized glyphosate as a substance known to cause cancer on
`July 17, 2017. See Nat’l Ass’n of Wheat Growers v. Becerra,
`No. 2:17-CV-2401 WBS EFB, 2020 WL 3412732, at *2 (E.D. Cal. June 22,
`2020). In June, a federal judge enjoined California from enforcing its labeling
`requirement against a group of plaintiffs on First Amendment grounds. Id. at
`*14. This Court previously found that Home Depot is not in that group of
`plaintiffs. FAC Dismissal Order 15. Therefore, Mr. Weeks could bring a
`Proposition 65 case against Home Depot alleging failure to label glyphosate.
`26
`Opposition 17.
`27 Walmart separately contends that Mr. Weeks’s claim remains a
`Proposition 65 claim in substance. Motion 9. Because this Court finds that
`Mr. Weeks would fail to state a claim even if he correctly pleaded it under UCL,
`it need not reach that contention.
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`Case 2:19-cv-06780-JWH-AS Document 77 Filed 12/16/20 Page 7 of 9 Page ID #:1577
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`separate from glyphosate alone because there is very little data to support that
`contention. Mr. Weeks identifies only two studies that find POEA to enhance
`glyphosate’s toxicity. Recognizing this infirmity, Mr. Weeks argues that Home
`Depot should have been warning customers not that Roundup was toxic above
`and beyond glyphosate, but that “that there is a scientific dispute about
`[Roundup’s] potential carcinogenicity.”28
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`This theory stretches the limit of what constitutes unfair business
`dealings. “To bring a claim under the unfair prong of the UCL, a plaintiff must
`show either that the supposed unfairness is ‘tethered’ to a legislative policy, or
`that it is immoral, unethical, oppressive, unscrupulous, or injurious to
`consumers.” Sud v. Costco Wholesale Corp., 731 F. App’x 719, 720 (9th Cir.
`2018) (citing Scripps Clinic v. Superior Court, 108 Cal. App. 4th 917, 939 (2003)).
`
`Under the first prong, “[t]o determine whether something is sufficiently
`‘tethered’ to a legislative policy for the purposes of the unfair prong, California
`courts require a close nexus between the challenged act and the legislative
`policy.” Hodsdon v. Mars, Inc., 891 F.3d 857, 866 (9th Cir. 2018). Mr. Weeks
`argues that Home Depot’s alleged failure to inform its customers of an ongoing
`scientific dispute is “tethered” to the misbranding provision of the Federal
`Insecticide, Fungicide, and Rodenticide Act (“FIFRA”): “(1) A pesticide is
`misbranded if— . . . (G) the label does not contain a warning or caution
`statement which may be necessary and if complied with, together with any
`requirements imposed under section 136a(d) of this title, is adequate to protect
`health and the environment.” 7 U.S.C. § 136. It is apparent from the text of the
`statute that FIFRA is a policy that requires warnings of dangerous chemicals.
`However, there is no close nexus between this provision and Mr. Weeks’s
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`28
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`SAC ¶ 86.
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`Case 2:19-cv-06780-JWH-AS Document 77 Filed 12/16/20 Page 8 of 9 Page ID #:1578
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`demand that Home Depot warn him of every chemical that is potentially
`dangerous, according to any study, at any time.
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`Mr. Weeks’s claim also fails to satisfy the second prong. Mr. Weeks
`contends that Home Depot’s conduct is “immoral, unethical, oppressive,
`unscrupulous, or injurious” because of its “awareness of various local and
`international bans on glyphosate-based herbicides.”29 But Mr. Weeks is not
`asking for a glyphosate warning; he is asking for a warning covering the
`combination of glyphosate and POEA, as a separate carcinogen from glyphosate.
`He does not sufficiently allege that that it is immoral or otherwise unfair for
`Home Depot to decline to post the results of two small studies on every
`Roundup display in California.
`
`Mr. Weeks is stuck between a rock and a hard place. If he claims that it is
`glyphosate that is toxic, then he must bring the claim under Proposition 65 as
`instructed in the FAC Dismissal Order. But if he claims that glyphosate and
`POEA together are toxic in a different way, then he does not have the scientific
`support to demonstrate that Home Depot has acted unfairly. He therefore fails
`to state a UCL claim. The Court need not analyze Home Depot’s other
`arguments.
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`A class of injured plaintiffs is currently holding Roundup’s manufacturers
`responsible for their carcinogenic product to the tune of billions of dollars. This
`action attempts so strenuously to distinguish itself from the reach of that lawsuit
`and the procedural requirements of Proposition 65 (while seeking to recover on
`essentially the same facts) that it fails to state a claim at all. If Mr. Weeks wants
`to sue Home Depot over its sale of a product known to the state of California to
`cause cancer, then he can do so under Proposition 65—perhaps the most robust
`environmental law in the country.
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`29
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`Opposition 13:19-22.
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`Case 2:19-cv-06780-JWH-AS Document 77 Filed 12/16/20 Page 9 of 9 Page ID #:1579
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`V. CONCLUSION
`Because Mr. Weeks has already had several opportunities to amend his
`complaint, and because the Court finds that no amendment would cure the
`deficiencies identified above, the Court GRANTS Defendant’s Motion to
`Dismiss and DISMISSES the Second Amended Complaint, without leave to
`amend. The Clerk is DIRECTED to close the case.
`IT IS SO ORDERED.
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`Dated: December 16, 2020
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`John W. Holcomb
`UNITED STATES DISTRICT JUDGE
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