Case 4:20-cv-05712-PJH Document 38 Filed 01/21/21 Page 1 of 10
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`SHANA GUDGEL,
`Plaintiff,
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`v.
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`THE CLOROX COMPANY,
`Defendant.
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`Case No. 20-cv-05712-PJH
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`ORDER GRANTING MOTION TO
`DISMISS WITH LEAVE TO AMEND
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`Defendant The Clorox Company’s (“Clorox” or “defendant”) motion to dismiss
`came on for hearing before this court on December 9, 2020. Plaintiff Shana Gudgel
`(“plaintiff”) appeared through her counsel, William Wright and Daniel Levinson.
`Defendant appeared through its counsel, Emily Johnson Henn. Having read the papers
`filed by the parties and carefully considered their arguments and relevant authority, and
`good cause appearing, the court hereby GRANTS defendant’s motion for the following
`reasons.
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`BACKGROUND
`This is a product labeling case, brought as a putative class action, arising out of
`Clorox’s “Splash-less Bleach” product. Plaintiff’s central allegation is that the product’s
`packaging and marketing would lead a reasonable consumer to believe that the product
`is suitable for disinfecting, and because the product is not suitable for that purpose, its
`packaging and marketing are misleading.
`On August 14, 2020, plaintiff filed this suit on behalf of herself and a putative class,
`asserting five causes of action against Clorox: (1) violation of the California Consumers
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`Northern District of California
`United States District Court
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`Legal Remedies Act (“CLRA”) § 1750; (2) violation of California Unfair Competition Law
`(“UCL”), Cal. Bus. & Prof. Code § 17500; (3) violation of California False Adverting Law
`(“FAL”), Cal. Bus. & Prof. Code § 17500; (4) negligent misrepresentation; and (5) unjust
`enrichment.
`Plaintiff alleges that, shortly after the World Health Organization declared COVID-
`19 a pandemic on March 11, 2020, she purchased a 116 fl. oz. container of Clorox
`Splash-less Liquid Bleach for $3.99. Complaint, ¶ 11. Plaintiff alleges that she bought
`the product on the belief that it would be suitable for disinfecting surfaces as a way to
`control the spread of the coronavirus. Id., ¶¶ 20, 69.
`Plaintiff alleges that, after she bought the product, she learned that the splash-less
`product is not actually suitable for disinfecting. Complaint, ¶ 11. The splash-less formula
`contains only 1-5% of sodium hypochlorite (the active ingredient in bleach), whereas
`plaintiff alleges that a minimum of 5% sodium hypochlorite is needed to be an effective
`disinfecting agent. Id., ¶¶ 24-25.
`Plaintiff alleges that she was misled by Clorox’s labeling and advertising into
`believing that the splash-less product would be effective for disinfecting. Plaintiff alleges
`that, “only on the back of the label, in small print, does the company disclose” that the
`product is not to be used for disinfecting. Complaint, ¶ 30.
`Plaintiff defines the putative class as “all persons residing in the United States who
`purchased Splash-Less Clorox during the applicable statute of limitations.” Complaint,
`¶ 32.
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`Plaintiff seeks compensatory damages and “an injunction or other appropriate
`equitable relief requiring defendant to refrain from engaging in the deceptive practices”
`alleged in the suit. Complaint at 14.
`Clorox moves to dismiss under Rule 12(b)(6) for failure to state a claim, under
`Rule 9(b) for failure to “allege with particularity the averments of fraud underlying her
`claim,” and under Rule 12(b)(1) for lack of standing to pursue injunctive relief.
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`DISCUSSION
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`A.
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`Legal Standard
`A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the
`legal sufficiency of the claims alleged in the complaint. Ileto v. Glock, 349 F.3d 1191,
`1199–1200 (9th Cir. 2003). Under Federal Rule of Civil Procedure 8, which requires that
`a complaint include a “short and plain statement of the claim showing that the pleader is
`entitled to relief,” Fed. R. Civ. P. 8(a)(2), a complaint may be dismissed under Rule
`12(b)(6) if the plaintiff fails to state a cognizable legal theory, or has not alleged sufficient
`facts to support a cognizable legal theory. Somers v. Apple, Inc., 729 F.3d 953, 959 (9th
`Cir. 2013).
`While the court is to accept as true all the factual allegations in the complaint,
`legally conclusory statements, not supported by actual factual allegations, need not be
`accepted. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). The complaint must proffer
`sufficient facts to state a claim for relief that is plausible on its face. Bell Atl. Corp. v.
`Twombly, 550 U.S. 544, 555, 558–59 (2007) (citations and quotations omitted).
`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.” Iqbal, 556 U.S. at 678 (citation omitted). “[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.’” Id. at 679. Where
`dismissal is warranted, it is generally without prejudice, unless it is clear the complaint
`cannot be saved by any amendment. Sparling v. Daou, 411 F.3d 1006, 1013 (9th Cir.
`2005).
`For plaintiff’s claims that sound in fraud, the allegations must also meet the
`heightened pleading standard of Federal Rule of Civil Procedure 9(b). See Kearns v.
`Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009). Rule 9(b) requires a party alleging
`fraud or mistake to state with particularity the circumstances constituting fraud or mistake.
`To satisfy this standard, the “complaint must identify the who, what, when, where, and
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`how of the misconduct charged, as well as what is false or misleading about the
`purportedly fraudulent statement, and why it is false.” Salameh v. Tarsadia Hotel, 726
`F.3d 1124, 1133 (9th Cir. 2013) (citation and internal quotation marks omitted).
`Review is generally limited to the contents of the complaint, although the court can
`also consider a document on which the complaint relies if the document is central to the
`claims asserted in the complaint, and no party questions the authenticity of the
`document. See Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007). The court may
`consider matters that are properly the subject of judicial notice, Knievel v. ESPN, 393
`F.3d 1068, 1076 (9th Cir. 2005); Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th
`Cir. 2001), and may also consider exhibits attached to the complaint, see Hal Roach
`Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989), and
`documents referenced extensively in the complaint and documents that form the basis of
`a the plaintiff’s claims. See No. 84 Emp’r-Teamster Jt. Counsel Pension Tr. Fund v. Am.
`W. Holding Corp., 320 F.3d 920, 925 n.2 (9th Cir. 2003).
`If dismissal is warranted, it is generally without prejudice, unless it is clear that the
`complaint cannot be saved by any amendment. Sparling, 411 F.3d at 1013. “Leave to
`amend may also be denied for repeated failure to cure deficiencies by previous
`amendment.” Abagninin v. AMVAC Chem. Corp., 545 F.3d 733, 742 (9th Cir. 2008).
`B.
`Analysis
`1. Whether the Product Would Deceive a Reasonable Consumer
`Plaintiff’s first three causes of action are brought under California statutes: the
`Consumer Legal Remedies Act (“CLRA”), the Unfair Competition Law (“UCL”), and the
`False Advertising Law (“FAL”). The CLRA prohibits “unfair methods of competition and
`unfair or deceptive acts or practices.” Cal. Civ. Code § 1770. The UCL prohibits any
`“unlawful, unfair or fraudulent business act or practice.” Cal. Bus. & Prof. Code § 17200.
`The FAL prohibits “any unfair, deceptive, untrue, or misleading advertising.” Williams v.
`Gerber Prod. Co., 552 F.3d 934, 938 (9th Cir. 2008) (citing Cal. Bus. & Prof. Code
`§ 17500) (internal quotation marks omitted).
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`The Ninth Circuit has explained that “these [three] California statutes are governed
`by the ‘reasonable consumer’ test.” Williams, 552 F.3d at 938 (quoting Freeman v. Time,
`Inc., 68 F.3d 285, 289 (9th Cir. 1995)); accord Consumer Advocates v. Echostar Satellite
`Corp., 113 Cal. App. 4th 1351, 1360 (2003). “Under the reasonable consumer standard,
`[plaintiffs] must show that members of the public are likely to be deceived.” Williams, 552
`F.3d at 938. “The California Supreme Court has recognized that these laws prohibit not
`only advertising which is false, but also advertising which[,] although true, is either
`actually misleading or which has a capacity, likelihood or tendency to deceive or confuse
`the public.” Id. (internal quotation marks omitted) (quoting Kasky v. Nike, Inc., 27 Cal. 4th
`939, 951 (2002)). The reasonable consumer test requires more than a mere possibility
`that defendant’s product “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 (2003). Rather, the test requires a probability “that a significant portion of the
`general consuming public or of targeted consumers, acting reasonably in the
`circumstances, could be misled.” Id.
`Generally, “whether a reasonable consumer would be deceived . . . [is] a question
`of fact not amenable to determination on a motion to dismiss.” Ham v. Hain Celestial
`Grp., Inc., 70 F. Supp. 3d 1188, 1193 (N.D. Cal. 2014); see Reid v. Johnson & Johnson,
`780 F.3d 952, 958 (9th Cir. 2015). “However, in rare situations a court may determine,
`as a matter of law, that the alleged violations of the UCL, FAL, and CLRA are simply not
`plausible.” Ham, 70 F. Supp. 3d at 1193.
`Clorox’s central argument is that plaintiff “does not identify a valid theory of
`deception, because plaintiff alleges no facts showing an affirmative misrepresentation or
`fraudulent omission.” Dkt. 26 at 6-12. Clorox argues that the label makes no statement
`or suggestion that the product at issue is suitable for sanitization or disinfection. Dkt. 26
`at 8. Clorox further points out that the product’s back label specifically states: “Not for
`sanitization or disinfection.” Dkt. 26 at 2-3. Thus, Clorox contends that a reasonable
`consumer would not be misled, and as a result, plaintiff’s statutory claims should be
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`dismissed.
`Plaintiff counters by arguing that she has alleged “specific, actionable
`misrepresentations,” and identifies the following: (1) Clorox’s disclaimer that the product
`does not sanitize/disinfect appears “only on the back of the label, in small print,” (2) the
`product’s label omits the percentage of sodium hypochlorite, (3) the label states the
`product has “10x Deep Cleaning Benefits,” (4) the front of the product’s label uses the
`term “regular,” (5) Clorox markets the product by stating “it’s the same Clorox product you
`love, now with more power per drop,” (6) Clorox does not disclose that the splash-less
`product is a diluted formula and not compliant with guidelines from the Centers for
`Disease Control and Prevention (“CDC”), and (7) the product’s label refers to it as
`“concentrated.” Dkt. 27 at 9-10.
`Starting with (1), plaintiff argues that a disclaimer in small print cannot cure the
`deception caused by the rest of the product’s label. For support, plaintiff cites to Williams
`v. Gerber. That case involved a “Fruit Juice Snacks” product with pictures of various
`different fruits on the label, even though the ingredient list stated that none of those fruits
`were actually contained in the product. 552 F.3d at 939. The Ninth Circuit determined
`that a reasonable consumer could be deceived by the images depicting “a number of
`different fruits, potentially suggesting (falsely) that those fruits or their juices are
`contained in the product.” Id. The Williams court rejected the argument that a
`misrepresentation on the front of the package could be cured by a disclaimer on the back
`of the package, instead concluding “reasonable consumers expect that the ingredient list
`contains more detailed information about the product that confirms other representations
`on the package.” Id. at 939-40 (emphasis added).
`However, unlike Williams, this case involves no actual misrepresentation or
`deception that conflicts with the language of the product’s disclaimer that it is “not for
`sanitization or disinfection.” In other words, the Clorox label at issue contains no
`misleading words or images that are analogous to the pictures of fruit in Williams. There
`are no words or images on the product’s label that would lead a reasonable consumer to
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`believe that the product was capable of sanitizing or disinfecting. As a result, plaintiff
`cannot state a claim under the reasonable consumer test based on the insufficiency of
`the label’s disclaimer.1
`As to (2), plaintiff argues that the label omits the percentage of sodium
`hypochlorite. However, plaintiff has not adequately explained how a reasonable
`consumer would be deceived by this omission, especially in light of the disclaimer stating
`that the product is “not for sanitization or disinfection.” Accordingly, plaintiff cannot state
`a claim under the reasonable consumer test based on the omission of the specific
`percentage of sodium hypochlorite.
`Turning to (3), plaintiff argues that the claim “10x Deep Cleaning Benefits” is
`deceptive or misleading. Clorox argues that the claim refers to the fact that the product is
`in concentrated form and must be diluted before use. Dkt. 28 at 3. The court concludes
`that the phrase “10x Deep Cleaning Benefits” does not constitute a representation that
`the product may be used for sanitizing or disinfecting purposes. Accordingly, plaintiff
`cannot state a claim under the reasonable consumer test based on the inclusion of the
`phrase “10x Deep Cleaning Benefits.”
`As to (4), plaintiff points to the use of the term “regular” on the label of its splash-
`less bleach. Clorox argues that the term “regular,” in this context, would not lead a
`reasonable consumer to believe that the product had sanitizing or disinfecting
`capabilities, and the court agrees. Plaintiff cannot state a claim under the reasonable
`consumer test based on the use of the term “regular.”
`As to (5), plaintiff argues that Clorox “markets the product” by stating “it’s the same
`Clorox product you love, now with more power per drop.” Dkt. 27 at 10. However, this
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`1 The court is not persuaded that Clorox needed to include any disclaimer regarding the
`product’s lack of disinfecting capabilities, in light of the fact the label made no claim
`regarding disinfecting capabilities. However, even assuming for purposes of this motion
`that a disclaimer was required, plaintiff has not provided support for the argument that a
`disclaimer on the back of a label like the one on the splash-less product is inherently
`insufficient, even when there is no deception on the front of the label that needs to be
`cured, and where the front of the label clearly identifies the product’s intended purpose to
`whiten, brighten, and deodorize.
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`phrase does not appear on the product’s label, and plaintiff has not identified any specific
`marketing materials showing the use of the phrase, or explained where a reasonable
`consumer would have seen the phrase. As a result, the phrase “it’s the same Clorox
`product you love, now with more power per drop” cannot be used as the basis to state a
`claim under the reasonable consumer test.
`As to (6), plaintiff argues that Clorox does not disclose that the product does not
`comply with CDC guidelines for disinfecting. However, as discussed above, the product’s
`label contains no representation that the product is capable of disinfecting, nor any
`representation that it complies with CDC guidelines. Accordingly, in the absence of any
`specific misrepresentation regarding compliance with CDC guidelines, plaintiff cannot
`state a claim under the reasonable consumer test based on the product’s alleged lack of
`compliance with CDC guidelines.
`Finally, as to (7), plaintiff argues that the product’s use of the term “concentrated”
`is a misrepresentation. Clorox again argues, as it did with regard to (3), that the term
`simply means that the product is in concentrated form and must be diluted before use.
`The court agrees that the term “concentrated” does not imply that the product is capable
`of sanitizing and disinfecting, and thus, plaintiff cannot state a claim under the reasonable
`consumer test based on the use of the term “concentrated.”
`The court concludes that there is no affirmative misrepresentation or deception on
`the product’s label. Without a deceptive act or statement, Williams does not apply. See
`Ebner v. Fresh, 838 F.3d 958, 966 (9th Cir. 2016). In Ebner, the court stated that
`“Williams stands for the proposition that if the defendant commits an act of deception, the
`presence of fine print revealing the truth is insufficient to dispel that deception,” but where
`“there is no deceptive act to be dispelled”, then there is no basis to conclude that a
`reasonable consumer would be deceived. Id. Similarly, in this case, there is no
`“deceptive act to be dispelled,” nor any omission that would have deceived a reasonable
`consumer.
`Plaintiff further argues that the alleged misrepresentations are actionable “when
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`viewed in their totality,” even if not actionable individually. Dkt. 27 at 11. However, the
`court finds no support for the argument that the challenged statements, even when
`viewed in their totality, would lead a reasonable consumer to believe that the product had
`sanitizing and disinfecting capabilities. Nor does the use of the “Clorox” brand name
`automatically imply that the product must contain sanitizing or disinfecting capabilities.
`In sum, the court finds no basis for plaintiff’s argument that there were any
`misrepresentations or that any misrepresentations “led plaintiff and reasonable
`consumers to believe that Clorox Splash-less Bleach is suitable for disinfecting during the
`pandemic.” Dkt. 27 at 9.
`Accordingly, the court finds that plaintiff’s claims under the CLRA, UCL, and FAL
`must be dismissed for failure to state a claim. The court need not reach defendant’s
`alternative arguments regarding standing to seek injunctive relief and Federal Rule of
`Civil Procedure 9(b)’s heightened pleading requirements.
`2. Negligent Misrepresentation and Unjust Enrichment
`Plaintiff’s fourth and fifth causes of action are for negligent misrepresentation and
`unjust enrichment, respectively.
`The elements of negligent misrepresentation are (1) the misrepresentation of a
`past or existing material fact; (2) without reasonable ground for believing it to be true; (3)
`with intent to induce another’s reliance on the fact misrepresented; (4) justifiable reliance
`on the misrepresentation; and (5) resulting damage. Apollo Cap. Fund, LLC v. Roth Cap.
`Partners, LLC, 158 Cal. App. 4th 226, 243 (2007).
`Courts within this circuit are split as to whether negligent misrepresentation claims
`are governed by the pleading standards of Rule 8 or Rule 9(b). See Najarian Holdings
`LLC v. Corevest American Finance Lender LLC, 2020 WL 5993225 at *5 (N.D. Cal. Oct.
`9, 2020) (collecting cases). However, in this case, the court need not reach the issue,
`because plaintiff’s allegations are insufficient under either standard.2
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`2 For the same reason, the court need not address Clorox’s alternative argument
`regarding the economic loss rule.
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`As discussed above, in the context of the reasonable consumer test, plaintiff has
`not identified any misrepresentation or deception on the product’s label. Accordingly,
`plaintiff cannot meet element (1) of a negligent misrepresentation claim, “the
`misrepresentation of a past or existing material fact.” As a result, plaintiff’s negligent
`misrepresentation claim must be dismissed.
`As to unjust enrichment, Clorox argues that plaintiff “does not identify any
`independent theory of unjust enrichment” that does not rise or fall with her statutory
`claims. The court agrees, and finds that plaintiff’s failure to identify an actionable
`deception in the context of the “reasonable consumer” test also requires the dismissal of
`her unjust enrichment claim.
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`CONCLUSION
`For the foregoing reasons, Clorox’s motion to dismiss plaintiff’s complaint is
`GRANTED. Because Clorox’s product packaging would not change in an amended
`complaint, and because plaintiff articulated no additional facts that would be added to any
`amended complaint, the court is skeptical that the complaint can be amended to state a
`claim. However, out of an abundance of caution, the court grants plaintiff leave to amend
`her complaint. Plaintiff shall file any amended complaint within 21 days of the date of this
`order. No new parties or causes of action may be pleaded without leave of court or the
`agreement of defendant. Any amended complaint must specify where plaintiff purchased
`the product at issue. Any amended complaint must also identify the source of the phrase
`“it’s the same Clorox product you love, now with more power per drop” allegedly used in
`Clorox’s marketing materials, if plaintiff intends to proceed with that allegation, and must
`also allege whether plaintiff saw or read that phrase and relied upon it.
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`IT IS SO ORDERED.
`Dated: January 21, 2021
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`
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`/s/ Phyllis J. Hamilton
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`PHYLLIS J. HAMILTON
`United States District Judge
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