Case 2:20-cv-04829-ODW-PLA Document 75 Filed 05/18/21 Page 1 of 16 Page ID #:1527
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`United States District Court
`Central District of California
`
`
`Case № 2:20-CV-04829-ODW (PLAx)
`
`
`ORDER DENYING MOTION TO
`STAY [65], AND GRANTING
`MOTION TO DISMISS [63]
`
`MIGUEL RODRIGUEZ, on behalf of
`himself and others similarly situated,
`
`
`
`
`Plaintiff,
`
`
`v.
`
`JUST BRANDS USA, INC., JUST
`BRANDS, INC., and SSGI FINANCIAL
`SERVICES, INC.,
`
`
`
`
`
`Defendants.
`I.
`INTRODUCTION
`Plaintiff Miguel Rodriguez filed this putative class action against Defendants
`Just Brands USA, Inc., Just Brands, Inc., and SSGI Financial Services, Inc. (First Am.
`Compl. (“FAC”), ECF No. 60.) Defendants now move to (1) stay the case pending
`regulatory guidance from the Food and Drug Administration (“FDA”), and
`(2) alternatively, to dismiss the FAC. (Mot. Stay (“MTS”), ECF No. 65; Mot. Dismiss
`(“MTD”), ECF No. 63; see also Opp’n MTS, ECF No. 68; Reply ISO MTS, ECF
`No. 70; Opp’n MTD, ECF No. 67; Reply ISO MTD, ECF No. 69.) For the following
`reasons, the Motion to Stay is DENIED, and the Motion to Dismiss is GRANTED.1
`
`
`1 After carefully considering the papers filed in connection with the Motions, the Court deemed the
`matters appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15.
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`

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`Case 2:20-cv-04829-ODW-PLA Document 75 Filed 05/18/21 Page 2 of 16 Page ID #:1528
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`II.
`BACKGROUND
`Defendants sell cannabidiol (“CBD”) products under the brand “JustCBD,”
`which includes CBD-infused “compounds, tinctures, and edibles.” (FAC ¶¶ 1, 7–10.)
`On October 2, 2018, and March 17, 2019, Plaintiff purchased JustCBD vape
`cartridges, gummies, and dog treats after reviewing and relying on the “product
`packaging, which promised specific quantities of CBD.” (Id. ¶¶ 5–6.) Plaintiff claims
`that he later discovered, through independent lab testing commissioned by counsel,
`that JustCBD products contained between 10% to 100% less CBD content than
`promised on its labels. (Id. ¶ 20.) Accordingly, Plaintiff complains that he “paid a
`substantial premium due to the false and misleading CBD claims . . . [and] did not
`receive the benefit of his bargain. (Id. ¶ 6.)
`Plaintiff commenced this putative class action on May 29, 2020, against
`Defendants collectively as the manufacturers, distributors, and sellers of JustCBD
`products, each responsible for its “advertising, marketing, and packaging.” (Id.
`¶¶ 7–9.) Plaintiff asserts seven causes of action against Defendants for: (1) breach of
`express warranty; (2) unjust enrichment; (3) fraud; (4) violation of the California
`Consumers Legal Remedies Act (“CLRA”), California Civil Code sections 1750, et
`seq.; (5) violation of California’s Unfair Competition Law (“UCL”), California
`Business & Professions Code sections 17200, et seq.; (6) violation of California’s
`False Advertising Law (“FAL”), California Business & Professions Code sections
`17500, et seq.; and (7) violation of Florida’s Deceptive & Unfair Practices Act
`(“FDUTPA”), Florida Statutes Annotated sections 501.201, et seq. (See generally id.)
`Now, Defendants move to stay the case under the primary jurisdiction doctrine or,
`alternatively, to dismiss the FAC. (MTS 1; MTD 1–2.)
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`Case 2:20-cv-04829-ODW-PLA Document 75 Filed 05/18/21 Page 3 of 16 Page ID #:1529
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`III.
`MOTION TO STAY
`First, the Court addresses Defendants’ Motion to Stay under the primary
`jurisdiction doctrine, pending regulatory guidance from the FDA.2 (MTS 1.) “The
`primary jurisdiction doctrine allows courts to stay proceedings or to dismiss a
`complaint without prejudice pending the resolution of an issue within the special
`competence of an administrative agency.” Clark v. Time Warner Cable, 523 F.3d
`1110, 1114 (9th Cir. 2008). This doctrine is “a prudential one,” and permits the courts
`to stay “an otherwise cognizable claim [if it] implicates technical and policy questions
`that should be addressed in the first instance by the agency with regulatory authority
`over the relevant industry rather than by the judicial branch.” Id. However, primary
`jurisdiction only “applies in a limited set of circumstances.” Id. at 1115. The doctrine
`“is to be used only if a claim requires resolution of an issue of first impression, or of a
`particularly complicated issue that Congress has committed to a regulatory agency.”
`Id. at 1114. Not all claims within an agency’s purview need be decided by the
`agency, and the doctrine is not “intended to secure expert advice for the courts from
`regulatory agencies every time a court is presented with an issue conceivably within
`the agency’s ambit.” Syntek Semiconductor Co. v. Microchip Tech. Inc., 307 F.3d
`775, 780 (9th Cir. 2002).
`“No fixed formula exists for applying the doctrine of primary jurisdiction.”
`United States v. W. Pac. R.R. Co., 352 U.S. 59, 64 (1956). “[T]he question is a matter
`for the court’s discretion,” and the Ninth Circuit has typically invoked the doctrine
`where there is “(1) the need to resolve an issue that (2) has been placed by Congress
`within the jurisdiction of an administrative body having regulatory authority
`(3) pursuant to a statute that subjects an industry or activity to a comprehensive
`
`2 The Court GRANTS Defendants’ Request for Judicial Notice of documents published by the FDA
`and legislative authorities regarding the pending FDA guidelines. (Req. Judicial Not. ISO MTS,
`ECF No. 66.) See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (granting judicial
`notice for “matters of public record” that are not “subject to reasonable dispute”); United States v.
`Ritchie, 342 F.3d 903, 909 (9th Cir. 2003) (granting judicial notice for “records and reports of
`administrative bodies”).
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`Case 2:20-cv-04829-ODW-PLA Document 75 Filed 05/18/21 Page 4 of 16 Page ID #:1530
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`regulatory authority that (4) requires expertise and uniformity in administration.”
`Syntek, 307 F.3d at 781 (citing United States v. Gen. Dynamics Corp., 828 F.2d 1356,
`1362 (9th Cir. 1987)). At bottom, “efficacy is the deciding factor in whether to invoke
`primary jurisdiction,” and it need not be invoked “when a referral to the agency would
`significantly postpone a ruling that a court is otherwise competent to make.” Astiana
`v. Hain Celestial Grp., Inc., 783 F.3d 753, 760–61 (9th Cir. 2015).
`Here, Defendants contend that each relevant factor is met because (1) the FDA
`has regulatory authority over CBD products under the Agricultural Improvement Act
`of 2018 (“2018 Farm Bill”), Public Law No. 115–334; (2) pending FDA guidelines
`are necessary to resolve a material issue because the FDA is developing “validated
`testing . . . to support the manufacturing of safe and consistent CBD products”; and
`(3) there is a need for uniform application of forthcoming FDA guidelines on CBD
`products. (MTS 8–11.) In opposition, Plaintiff contends that the Court is competent
`to resolve this matter without the pending FDA guidelines. (Opp’n MTS 4.) Plaintiff
`is correct.
`The heart of Plaintiff’s claim is that Defendants “overstate[d] the quantity of
`CBD contained in their [p]roducts.” (FAC ¶ 2.) For the FDA to have primary
`jurisdiction over this matter, its forthcoming guidelines must affect labeling standards
`for disclosing CBD content. However, the pending FDA guidelines mainly concern
`the sale of CBD products as medicine or dietary supplements with “unsubstantiated
`therapeutic claims,” which violates the law and puts patients at risk. (Not. of Public
`Hr’g 12970.) It is unlikely that these safety guidelines would change labeling
`standards such that Defendants could overstate and underfill the CBD content in their
`products to the extent that “some [p]roducts contained no CBD whatsoever.” (FAC
`¶ 2); see also Ballard v. Bhang Corp., No. EDCV 19-2329 JGB (KKx), 2020 WL
`6018939, at *5 (C.D. Cal. Sept. 25, 2020) (declining to stay a case for alleged
`underfilling of CBD in chocolates because it was unlikely “that possible FDA
`regulations on the safety of CBD will clarify whether [defendants’] advertising lines
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`Case 2:20-cv-04829-ODW-PLA Document 75 Filed 05/18/21 Page 5 of 16 Page ID #:1531
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`up with its product”). Similarly, the “validated testing” that Defendants claim to be
`necessary for this matter focuses on testing standards for manufacturing processes,
`not CBD concentration. (Not. of Public Hr’g 12972.) At most, these guidelines might
`provide some “expert advice” to the courts; however, this alone is not enough to
`invoke the primary jurisdiction doctrine. See Syntek, 307 F.3d at 780. The Court is
`thus competent to resolve this matter without guidance from the pending FDA
`regulations, and primary jurisdiction does not apply. Astiana, 783 F.3d at 760–61.
`Additionally, the cases upon which Defendants rely to invoke the primary
`jurisdiction doctrine are inapposite, as those cases involved the legality of labeling
`CBD products as safe for sale in the United States or for use as medicine or dietary
`supplements. See, e.g., Adam Dasilva v. Infinite Prod. Co. LLC, No. CV 16-10148-
`DMG (Ex), 2020 WL 900642, at *2 (C.D. Cal. Mar. 3, 2021) (alleging that defendants
`illegally marketed CBD products as safe for medical use); Colette v. CV Sci. Inc.,
`No. 2:19-cv-10227-VAP-JEM(x), 2020 WL 2739861, at *4 (C.D. Cal. May 22, 2020)
`(claiming defendants illegally mislabeled CBD products as dietary supplements);
`Glass v. Global Widget, LLC, 2020 WL 3174688, at *2 (E.D. Cal. June 15, 2020)
`(claiming defendants misrepresented that CBD was “legal to sell in the United
`States”). Here, in contrast, Plaintiff does not contest the legal status of JustCBD
`products; he simply alleges that JustCBD products contained less CBD than
`advertised. (FAC ¶ 2.)
`In short, this case is not within the “limited set of circumstances” under which
`primary jurisdiction applies. The Court need not rely on the pending FDA guidelines
`to determine whether Defendants may misrepresent the CBD content in its products.
`See Astiana, 783 F.3d at 761. Thus, the Motion to Stay is DENIED.
`IV.
`MOTION TO DISMISS
`The Court now turns to Defendants’ Motion to Dismiss. Defendants move to
`dismiss Plaintiff’s claims for lack of standing under Rule 12(b)(1), lack of personal
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`Case 2:20-cv-04829-ODW-PLA Document 75 Filed 05/18/21 Page 6 of 16 Page ID #:1532
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`jurisdiction under Rule 12(b)(2), and failure to state a claim under Rule 12(b)(6).
`(MTD 1–2.) The Court addresses each issue in turn.
`A. Rule 12(b)(1) – Standing
`Rule 12(b)(1) provides for dismissal of a complaint for lack of subject-matter
`jurisdiction. A defendant may bring a Rule (12)(b)(1) motion to dismiss based on a
`lack of standing. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “A
`Rule 12(b)(1) jurisdictional attack may be facial or factual. Safe Air for Everyone v.
`Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citing White, 227 F.3d at 1242). A facial
`attack is based on the challenger’s assertion that allegations in the complaint are
`“insufficient on their face to invoke federal jurisdiction.” Id. “By contrast, in a
`factual attack, the challenger disputes the truth of the allegations that, by themselves,
`would otherwise invoke federal jurisdiction.” Id.
`“In a class action, the plaintiff class bears the burden of showing that Article III
`standing exists.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 978 (9th Cir. 2011).
`“[S]tanding requires that (1) the plaintiff suffered an injury in fact, i.e., one that is
`sufficiently “concrete and particularized” and actual or imminent, not conjectural or
`hypothetical, (2) the injury is fairly traceable to the challenged conduct, and (3) the
`injury is likely to be redressed by a favorable decision.” Bates v. United Parcel Serv.,
`Inc., 511 F.3d 974, 985 (9th Cir. 2007).
`Here, Defendants raise two arguments related to standing. First, they argue that
`Plaintiff lacks standing to assert claims for any JustCBD products that he did not
`purchase because he was not injured by those products. (MTD 6.) Second, they claim
`that Plaintiff lacks standing to seek injunctive relief because he fails to show actual or
`imminent future harm. (Id. at 9.)
`1.
`Unpurchased Products
`Plaintiff asserts claims based on the following JustCBD products: (1) all
`JustCBD gummies, including all flavors and sizes, (2) all JustCBD edibles, including
`all flavors and sizes, (3) all JustCBD honey, oil, and isolate products, including all
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`Case 2:20-cv-04829-ODW-PLA Document 75 Filed 05/18/21 Page 7 of 16 Page ID #:1533
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`sizes, (4) all JustCBD tincture products, including all flavors and sizes, and (5) all
`JustCBD vape products, including all flavors. (FAC ¶ 17.) However, out of those
`products listed, Plaintiff claims to have only purchased four. (Id. ¶ 5.) Defendants
`argue that Plaintiff therefore lacks standing to assert claims regarding the remaining
`JustCBD products that he did not purchase. (MTD 5.)
`
`“[A] plaintiff may have standing to assert claims for unnamed class members
`based on products he or she did not purchase so long as the products and alleged
`misrepresentations are substantially similar.” Michael v. Honest Co., Inc., No. LA
`CV15-07059 JAK (AGRx), 2016 WL 8902574, at *8 (C.D. Cal. Dec. 6, 2016).
`“[T]he critical inquiry seems to be whether there is substantial similarity between the
`products purchased and not purchased.” Astiana v. Dreyer’s Grand Ice Cream, Inc.,
`No. C-11-2910 EMC, 2012 WL 2990766, at *11 (N.D. Cal. Jul. 20, 2012). Courts
`have considered factors including “whether the challenged products are of the same
`kind, whether they are comprised of largely the same ingredients, and whether each of
`the challenged products bears the same alleged mislabeling.” Wilson v. Frito-Lay N.
`Am., Inc., 961 F. Supp. 2d 1134, 1141 (N.D. Cal. 2013) (emphases added). Where
`plaintiffs sufficiently allege similarity between the purchased and unpurchased
`products in the complaint, the courts have determined that this was enough to survive
`dismissal. Id. at *12. “[A]ny concerns . . . about material differences are better
`addressed at the class certification stage.” Astiana, 2012 WL 2990766, at *13.
`
`Here, the Court finds that Plaintiff alleges sufficient similarity between the
`purchased and unpurchased products. (FAC ¶¶ 17–20.) While it may be true that
`ingredients and CBD contents vary across JustCBD’s products, such variance alone is
`not dispositive. Astiana, 2012 WL 2990766, at *13 (finding the fact that products
`“may ultimately have different ingredients [to] not [be] dispositive” when plaintiffs
`challenge the same basic mislabeling). Plaintiff asserts one common allegation
`regarding all JustCBD products, which is that the labels misrepresent CBD content.
`(FAC ¶ 20.) All JustCBD products contain labels to disclose the relevant amount of
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`Case 2:20-cv-04829-ODW-PLA Document 75 Filed 05/18/21 Page 8 of 16 Page ID #:1534
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`CBD contained therein, and Plaintiff presents specific examples of how the alleged
`underfilling and mislabeling occurs across the different types of products with
`differing levels of CBD concentrations—from tinctures to gummies to vape oils to
`dried fruit slices. (Id.) Therefore, Plaintiff plausibly alleges standing to bring his
`claims against all JustCBD products. Questions regarding material differences will be
`more appropriately addressed at the class certification stage. See Astiana, 2012 WL
`2990766, at *13. Defendants fail to offer a valid reason to dismiss on this basis.
`2.
`Injunctive Relief
`Defendants also contend that Plaintiff lacks standing to seek injunctive relief
`because he alleges only that he “may” purchase JustCBD products in the future.
`(MTD 9.) The Court agrees. To satisfy Article III standing, a plaintiff seeking
`injunctive relief “premised entirely on the threat of repeated injury, . . . must show a
`sufficient likelihood that he will again be wronged in a similar way.” Davidson v.
`Kimberly-Clark Corp., 889 F.3d 956, 967 (9th Cir. 2018). This issue becomes more
`complicated in cases where plaintiffs were previously deceived or are aware of alleged
`misrepresentations because “plaintiffs who are already aware of the deceptive nature
`of an advertisement are not likely to be misled into buying the relevant product in the
`future, and therefore are not capable of being harmed again in the same way.” Id.
`at 968. Still, “a previously deceived plaintiff may have standing to seek injunctive
`relief.” Id. at 970. Ultimately, the question is whether Plaintiff’s allegations “cross
`the line from an insufficient possible future injury to an actionable certainly
`impending injury.” Schertzer v. Samsonite Co. Stores, LLC, 2020 WL 4281990, at *11
`(S.D. Cal. Feb. 25, 2020).
`A firm intention to purchase the product in the future is sufficient to satisfy
`standing. See, e.g., Stewart v. Kodiak Cakes, LLC, No. 19-cv-2454-MMA (MSB),
`2021 WL 1698695, at *9–10 (S.D. Cal. Apr. 29, 2021) (finding plaintiffs’ claim “that
`they intend to” purchase the products in the future to be sufficiently concrete). For
`instance, in Davidson, the Ninth Circuit held that the plaintiff established standing by
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`Case 2:20-cv-04829-ODW-PLA Document 75 Filed 05/18/21 Page 9 of 16 Page ID #:1535
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`alleging that she “continue[d] to desire to purchase” the defendant’s products, that she
`“would purchase” them if it were possible, and that she “regularly visit[ed]” stores
`selling the defendant’s products such that she continued to be presented with its
`packaging. Davidson, 889 F.3d at 970–71. Under those circumstances, the Ninth
`Circuit held that the plaintiff’s continued desire to purchase the defendant’s products
`and “alleged harm [through] her inability to rely on the validity of information
`advertised on [packaging]” was enough for standing. Id. at 971.
`Where, as here, a plaintiff vaguely alleges that he “may” purchase the product
`in the future, the Ninth Circuit and district courts have found this “some day
`intention” insufficient to satisfy Article III standing. Lanovaz v. Twinings N. Am., Inc.,
`726 F. App’x 590, 591 (9th Cir. 2018); see, e.g., Hanna v. Walmart Inc., No. 5:20-cv-
`01075-MCS-SHK, 2020 WL 7345680, at *7 (C.D. Cal. Nov. 4, 2020) (finding
`plaintiff’s claim that she “may purchase” the product if it was reformulated
`insufficient for standing); Schertzer, 2020 WL 4281990, at *11 (finding plaintiff’s
`claim that she “may in the future” shop at defendant’s store insufficient to confer
`standing); Wallace v. SharkNinja Operating, LLC, No. 18-cv-05221-BLF, 2020 WL
`1139649, at *24 (N.D. Cal. Mar. 9, 2020) (finding plaintiff’s claim that she “would
`consider” buying the product in the future “insufficient to show a likelihood of future
`injury”).
`Applying the above standards, Plaintiff’s claim that “he may purchase the CBD
`products in the future” is not enough to satisfy Article III standing. (FAC ¶ 6.)
`Plaintiff alleges only a possibility of future injury, not an injury that is “certainly
`impending.” Davidson, 889 F.3d at 972. Plaintiff thus lacks standing to seek
`injunctive relief. This deficiency could be overcome by an amendment, however;
`thus, Plaintiff’s prayer for injunctive relief is DISMISSED with leave to amend.3
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`3 A court dismissing a complaint should provide leave to amend if the complaint could be saved by
`amendment. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008); see
`also Fed. R. Civ. P. 15(a)(2) (“The Court should freely give leave when justice so requires.”).
`Reasons to deny leave to amend include “bad faith, undue delay, prejudice to the opposing party,
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`Case 2:20-cv-04829-ODW-PLA Document 75 Filed 05/18/21 Page 10 of 16 Page ID #:1536
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`B. Rule 12(b)(2) – Personal Jurisdiction
`Next, Defendants challenge the Court’s personal jurisdiction over them with
`respect to claims brought by class members who are not California residents.
`(MTD 11.) Under Rule 12(b)(2), a party may seek dismissal of an action for lack of
`personal jurisdiction. Fed. R. Civ. P. 12(b)(2). A federal court may exercise personal
`jurisdiction over a non-resident defendant if the defendant has “at least ‘minimum
`contacts’ with the relevant forum such that the exercise of jurisdiction ‘does not offend
`traditional notions of fair play and substantial justice.’” Dole Food Co., Inc. v. Watts,
`303 F.3d 1104, 1110–11 (9th Cir. 2002) (quoting Int’l Shoe Co. v. Washington,
`326 U.S. 310, 326 (1945)).
`In this case, Defendants challenge personal jurisdiction with respect to claims
`brought by out-of-state class members because those class members “did not suffer
`injury in the forum state.” (MTD 12.) This argument relies on Bristol Myers Squibb
`Co. v. Superior Court, 137 S. Ct. 1773, 1781 (2017), where the Supreme Court held
`that there must be “a connection between the forum and the specific claims at issue.”
`In Bristol-Myers, the plaintiffs were California and non-California residents who filed
`a mass tort action for injuries caused by a pharmaceutical drug, and the Supreme
`Court held that the California court lacked personal jurisdiction as to claims brought
`by the non-California residents when they did not purchase or ingest the drug in
`California. Id. at 1778, 1782.
`The rule from Bristol-Myers does not apply here because this case involves a
`nationwide class action. As this Court explained in Ochoa v. Church & Dwight Co.,
`the fact that Bristol-Meyers was not a class action “alone distinguishes [it] because in
`class actions, the citizenship of the unnamed plaintiffs is not taken into account for
`personal jurisdiction purposes.” Ochoa, No. 5:17-cv-02019-ODW (SP), 2018 WL
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`and/or futility.” Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010) (quoting William O. Gilly
`Enters. v. Atl. Richfield Co., 588 F.3d 659, 669 n.8 (9th Cir. 2009)); see also Foman v. Davis,
`371 U.S. 178, 182 (1962).
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`4998293, at *10 (citing Fitzhenry-Russell v. Dr. Pepper Snapple Grp., Inc., No 17-cv-
`00564, 2017 WL 4224723, at *5 (N.D. Cal. Sept. 22, 2017)). Courts in the Ninth
`Circuit have affirmed this holding. See Sousa v. 7-Eleven, Inc., No. 19-CV-2142 JLS
`(RBB), 2020 WL 6399595, at *3 (joining “most of the courts that have encountered
`this issue . . . to conclude that Bristol-Meyers does not apply to unnamed class
`members in a putative federal class action).
`In a class action, “the claims of the unnamed class members are irrelevant to the
`[personal] jurisdiction analysis.” AM Trust v. UBS AG, 78 F. Supp. 3d 977, 987
`(N.D. Cal. Jan. 29, 2015). The Court requires only that “personal jurisdiction
`requirements . . . be satisfied for each and every named plaintiff.” Id. (emphasis
`added). Here, the named plaintiff is a California resident and his claims against
`Defendants arise out of purchases made in California. (FAC ¶¶ 5–6.) Thus, the Court
`has personal jurisdiction over Defendants in this action, and Defendants fail to offer a
`valid reason to dismiss on this basis.
`C. Rule 12(b)(6) – Failure to State a Claim
`Lastly, a court may dismiss a complaint under Rule 12(b)(6), for lack of a
`cognizable theory or insufficient facts pleaded to support an otherwise cognizable
`legal theory. Baistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir 1988). A
`complaint need only satisfy
`the minimum notice pleading requirements of
`Rule 8(a)(2)—a short and plain statement of the claim. Porter v. Jones, 319 F.3d 483,
`494 (9th Cir. 2003). But factual “allegations must be enough to raise a right to relief
`above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
`That is, the 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) (internal quotation marks omitted). Testing the plausibility standard is a
`“context-specific task that requires the reviewing court to draw on its judicial
`experience and common sense.” Iqbal, 556 U.S. at 679. A court is generally limited
`to the pleadings and must construe all “factual allegations set forth in the
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`complaint . . . as true and . . . in the light most favorable” to the plaintiff. Lee,
`250 F.3d at 679. However, a court need not blindly accept conclusory allegations,
`unwarranted deductions of fact, or unreasonable inferences. Sprewell v. Golden State
`Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
`Here, Defendants argue that: (1) the FAC is a “shotgun pleading” that fails to
`allege specifically as to each Defendant; (2) Plaintiff’s common law claims are
`defective for failure to allege the governing state law; and (3) Plaintiff fails to
`establish claims for equitable relief by failing to allege inadequate remedies at law.
`(MTD 10, 13, 14). The Court addresses each argument in turn.
`1.
`Shotgun Pleading
`Defendants contend that the FAC is a “shotgun pleading” because it refers to
`Defendants collectively without “any effort to differentiate their individual alleged
`conduct.” (MTD 11.) Meanwhile, Plaintiff maintains that the FAC clearly alleges
`each Defendant’s role. (Opp’n to MTD 10). The Court agrees with Plaintiff.
`Shotgun pleadings have a “unifying characteristic . . . [in] that they fail to one
`degree or another, or in one way or another, to give the defendants adequate notice of
`the claims against them and the grounds upon which each claim rests.” Weiland v.
`Palm Beach Cty. Sheriff’s Off., 792 F.3d 1313, 1323 (11th Cir. 2015). In this case, the
`FAC sufficiently apprises Defendants of the allegations against them. Plaintiff clearly
`alleges
`that Defendants are collectively
`involved
`in manufacturing, selling,
`distributing, advertising, marketing, and packaging JustCBD products, and invokes
`joint and several liability and agency to tie Defendants’ conduct together. (FAC
`¶¶ 7–10.) Although Defendants argue that these claims lack factual support, Rule 8(a)
`only requires that the allegations “be enough to raise a right to relief above a
`speculative level.” Twombly, 550 U.S. 544, 555 (2007). The FAC is not a “shotgun
`pleading” such that Defendants cannot “know[] exactly what they are accused of
`doing wrong.” Sollberger, 2010 WL 2674456, at *4. Thus, Defendants fail to offer a
`valid reason to dismiss on this basis.
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`Case 2:20-cv-04829-ODW-PLA Document 75 Filed 05/18/21 Page 13 of 16 Page ID #:1539
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`2.
`Common Law Claims and Governing State Law
`Plaintiff asserts three common law claims, for breach of express warranty,
`unjust enrichment, and fraud. (See FAC ¶¶ 34–55.) Defendants argue that
`(1) Plaintiff cannot assert claims based on laws of states in which he does not reside;
`and (2) Plaintiff fails to sufficiently plead the applicable state law for each of his
`claims. (MTD 13.) Defendants are correct on both accounts.
`First, “[w]here . . . a representative plaintiff is lacking for a particular state, all
`claims based on that state’s laws are subject to dismissal.” In re Flash Memory
`Antitrust Litig., 643 F. Supp. 2d 1133, 1164 (N.D. Cal. 2009); see, e.g., Mollicone v.
`Universal Handicraft, Inc., No. 2:16-cv-07322-CAS(MRWx), 2017 WL 440257, at *9
`(C.D. Cal. Jan. 30, 2017) (dismissing claims based on laws of states not represented
`by named plaintiffs); In re Carrier IQ, Inc., 78 F. Supp. 3d 1051, 1075 (N.D. Cal.
`2015) (same). In this case, Plaintiff is a California resident who purchased JustCBD
`products in California, so all claims based on any other state’s laws are subject to
`dismissal.4
`Second, “due to variances among state laws, failure to allege which state law
`governs a common law claim is grounds for dismissal.” Romero v. Flowers Bakeries,
`LLC, No. 14-cv-05189-BLF, 2016 WL 469370, at *12 (N.D. Cal. Feb. 8, 2016.).
`“Even if basic elements of [common law claims] are unlikely to differ much from
`state to state, there may be (and likely are) differences . . . regarding issues such as
`applicable statute of limitations and various equitable defenses.” Augustine v. Talking
`Rain Beverage Co., Inc., 386 F. Supp. 3d 1317, 1333 (S.D. Cal. 2019). In this case,
`Plaintiff fails to allege the governing state law for his express warranty, unjust
`enrichment, and fraud claims. Thus, dismissal is appropriate.
`
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`4 Although Defendants raise this argument with respect to Plaintiff’s common law claims, the Court
`notes that Plaintiff’s seventh cause of action must be dismissed because it arises under Florida law,
`and Plaintiff (the only named plaintiff) is a California resident. (FAC ¶ 5.) As this deficiency
`cannot be fixed by amendment, Plaintiff’s seventh cause of action under the FDUTPA is hereby
`DISMISSED with prejudice.
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`Furthermore, although an amendment could cure Plaintiff’s breach of express
`warranty and fraud claims, the same cannot be said for his unjust enrichment claim.
`“[U]njust enrichment is a remedy, rather than a freestanding claim.” Forcellati v.
`Hyland’s, Inc., 876 F. Supp. 2d 1155, 1166 (C.D. Cal. 2012). “Under California law, a
`claim for unjust enrichment [also] cannot stand alone as an independent claim for
`relief.” Iezza v. Saxon Mortg. Serv., Inc., No. 10-03634 DDP (JCGx), 2010 WL
`3934041, at *2 (C.D. Cal. Sept. 28, 2010). Thus, Plaintiff’s unjust enrichment claim
`does not constitute a proper cause of action, and an amendment would be futile.
`Accordingly, to the extent Plaintiff asserts unjust enrichment as a standalone cause of
`action, that claim is DISMISSED with prejudice, while Plaintiff’s claims for breach
`of express warranty and fraud are DISMISSED with leave to amend.
`3.
`Equitable Remedies
`Finally, Defendants challenge Plaintiff’s UCL and FAL claims on grounds that
`Plaintiff fails to allege inadequate legal remedies. (MTD 14.) With these claims,
`Plaintiff seeks to enjoin Defendants from engaging in the alleged conduct as well as
`“actual damages, restitution, and reasonable attorneys’ fees.” (FAC ¶¶ 72, 80.)
`Insofar as Plaintiff seeks injunctive relief, the Court has already dismissed such claims
`above with leave to amend. And to the extent Plaintiff seeks monetary relief via the
`UCL and FAL, Defendants are correct.
`Actions under the UCL and FAL are actions in equity. Barquis v. Merchants
`Collection Ass’n, 7 Cal. 3d 94, 112 (1972). “[I]n federal court[,] . . . equitable
`remedies are subject to traditional equitable principles unaffected by state law.”
`Sonner v. Premier Nutrition Corp., 971 F.3d 834, 841 (9th Cir. 2020). As such, “a
`federal court must apply traditional equitable principles before awarding restitution
`under the UCL and CLRA.” Id. (emphasis added). “[T]o state a UCL [or FAL]
`claim, a plaintiff must plead that legal remedies are inadequate.” Cal. Surgical Inst.,
`Inc. v. Aetna Life & Cas. (Bermuda) Ltd., No. SACV 18-02157-JVS (DFMx),
`2019 WL 1581415, at *8 (C.D. Cal. Feb. 6, 2019). This is because “[r]emedies under
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