`
`UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`
`FILED
`
`
`OCT 22 2021
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`
`
`
`No. 20-56373
`
`
`D.C. No.
`2:19-CV-10901-DMG-KS
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`
`
`MEMORANDUM*
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`
`
`
`
`
`
` Appellant,
`
`CONNIE CHONG, individually and on
`behalf of all similarly situated,
`
`
`
` v.
`
`
`NESTLÉ WATER NORTH AMERICA,
`INC.; DOES 1 through 10,
`
`
`
`
`
`
`
`
`
` Appellees.
`
`
`
`Appeal from the United States District Court
`for the Central District of California
`Dolly M. Gee, District Judge, Presiding
`
`Submitted October 20, 2021**
`Pasadena, California
`
`Before: CALLAHAN and FORREST, Circuit Judges, and AMON,*** District
`Judge.
`
`
`Connie Chong, individually and on behalf of all others similarly situated,
`
`
`*
` This disposition is not appropriate for publication and is not precedent
`
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`except as provided by Ninth Circuit Rule 36-3.
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`** The panel unanimously concludes this case is suitable for decision
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`without oral argument. See Fed. R. App. P. 34(a)(2).
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`*** The Honorable Carol Bagley Amon, United States District Judge for
`
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`the Eastern District of New York, sitting by designation.
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`
`
`
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`
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`appeals the district court’s order dismissing her statutory claims, which alleged that
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`Nestlé Waters North America (“Nestlé”) violated various California consumer
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`protection laws in connection with its labeling of Arrowhead Brand water, for
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`failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The district
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`court also dismissed Chong’s purported standalone claim of unjust enrichment. We
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`have jurisdiction under 28 U.S.C. § 1291. Reviewing the district court’s dismissal
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`de novo, Curtis v. Irwin Indus., Inc., 913 F.3d 1146, 1151 (9th Cir. 2019), we
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`affirm.
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`1. Chong argues that the district court erred in dismissing her claims under
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`California’s Unfair Competition Law (“UCL”), False and Misleading Advertising
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`Law (“FAL”), and the California Legal Remedies Act (“CLRA”) by finding that a
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`“reasonable consumer” would not be misled by the Arrowhead labels. Under the
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`“reasonable consumer” standard, plaintiffs must demonstrate that “members of the
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`public are likely to be deceived,” which “requires more than a mere possibility that
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`[a] label ‘might conceivably be misunderstood by some few consumers viewing it
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`in an unreasonable manner.’” Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir.
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`2016) (first quoting Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir.
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`2008); and then quoting Lavie v. Procter & Gamble Co., 129 Cal. Rptr. 2d 486,
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`495 (Ct. App. 2003)).
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`In sum, Chong argues that the district court did not properly credit her
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`
`
`2
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`
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`allegation that she believed the mountain printed on the front of the Arrowhead
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`label to be “Arrowhead Mountain,” and on the basis of that belief, determined that
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`“NESTLÉ Product was [sourced exclusively] from the springs in the arrowhead
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`mountain.” We reject Chong’s argument. The district court properly accepted as
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`true that Chong believed that the mountain on the front of the labels was
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`“Arrowhead Mountain,” but upon reviewing the labels submitted for judicial notice
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`by Nestlé, determined that there was not “any indication that the image of the
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`mountain and lake refer to any specific mountain or lake, but rather to the true
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`statement that Arrowhead Water is comprised entirely of mountain spring water.”
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`The court was correct to find that this case “presents the rare case where this Court
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`may conclude on the pleadings that no reasonable consumer would be misled by
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`any of the product labels at issue in this suit.”
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`2. Chong also argued that Nestlé violated the UCL by virtue of “bare
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`technical violation[s]” of state and federal law, which can serve as predicate
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`offenses under the UCL’s “unlawful” conduct prong. This, too, is unpersuasive.
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`The district court properly found that Chong had not sufficiently alleged any
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`violations of state or federal law that could serve as predicate violations under the
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`UCL “unlawful” conduct prong.
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`3. Finally, the district court was correct to dismiss Chong’s unjust
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`enrichment claim. Even assuming she did not waive this claim, it fails on the
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`
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`3
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`
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`merits. Restitution under an unjust enrichment theory is only required if “it is
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`unjust” for the benefiting party to retain that benefit. Ghirardo v. Antonioli, 924
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`P.2d 996, 1003 (Cal. 1996) (quoting Restatement of Restitution § 1 cmt. C (Am. L.
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`Inst. 1937)). Chong has not alleged a violation of the UCL, FAL, or CLRA, and
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`has not otherwise pointed to any reason why it would be “unjust” for Nestlé to
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`retain any proceeds from the sale of Arrowhead Water. As a result, her unjust
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`enrichment claim was properly dismissed.
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`AFFIRMED.
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`
`4
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