Quinn v. Proctor & Gamble Co.

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 THAYLIA DONNA QUINN, Case No.: 24-CV-856 JLS (SBC) individually, [12] ORDER GRANTING DEFENDANTS’ Plaintiff, 13 MOTION TO DISMISS v. PLAINTIFF’S COMPLAINT [14] PROCTOR & GAMBLE CO.; WAL15 (ECF No. 14) MART STORES, INC.; TARGET 16 CORPORATION; and DOES 1–100, inclusive, [17] Defendants. [18] 19 Presently before the Court are Defendants Procter & Gamble Co. (“P&G”), Walmart 20 Inc., and Target Corporation’s (collectively, “Defendants”) Motion to Dismiss (“Mot.,” 21 ECF No. 14) and supporting Memorandum of Points and Authorities (“Mem.,” ECF 22 No. 14-1). Plaintiff Thaylia Donna Quinn filed an Opposition to the Motion (“Opp’n,” 23 ECF No. 16), to which Defendants filed a Reply in Support of the Motion (“Reply,” ECF 24 No. 18). Also before the Court is a Notice of Supplemental Authority (“Not.,” ECF 25 No. 19), filed by Defendants. 26 Having carefully reviewed Plaintiff’s Complaint (“Compl.,” ECF No. 1-3), the 27 Parties’ arguments, and the law, the Court GRANTS Defendants’ Motion. 28 / / / 1 BACKGROUND 2 Plaintiff is a resident of Murrieta, California who “habitually purchased Herbal 3 Essence-branded [dry shampoo and conditioner] from Walmart and Target in San Diego 4 County throughout the past decade.” Compl. ¶ 20. Most Americans are likely familiar 5 with Herbal Essences—the cosmetic brand has been in stores since 1971 and was acquired 6 by P&G, “a global leader in the manufacturing, distributing, and sale of personal care 7 products,” in 2001. Id. ¶¶ 34, 38. After acquiring Herbal Essences, “P&G expanded the 8 Herbal Essences Brand into aerosol spray shampoos and conditioners,” the health care 9 products (“Products”) at the center of this dispute. Id. 10 In reliance on P&G’s “size and sterling reputation, [which] instantly lends credibility 11 to [its] product line,” Plaintiff “used P&G’s personal care products for decades.” Id. ¶¶ 6, 12 35. Unbeknownst to Plaintiff, however, was the alleged presence of “significant and unsafe 13 levels of benzene—a known human carcinogen”—in certain Products manufactured by 14 P&G. Id. ¶ 4. Particularly susceptible to benzene, says Plaintiff, are the underarms and 15 scalp, of which the “outermost layer of the skin is thinner and less protective.” Id. ¶ 3. 16 This outermost layer, or the stratum corneum, is critical to wellbeing as it “provides a 17 barrier that protects against unwanted chemicals passing through the skin, into the 18 bloodstream or lymphatic system and, ultimately, the internal organs.” Id. ¶ 2. One such 19 unwanted chemical is benzene. Id. ¶ 1. Plaintiff blames the benzene allegedly found in 20 certain of the Products for the Chronic Lymphocytic Leukemia (“CLL”) and bone marrow 21 cancer of which she now suffers. Id. ¶ 6. 22 Generally speaking, several voices from the scientific community support the 23 contention that exposure to benzene—“a colorless or light-yellow liquid at room 24 temperature”—is “detrimental to human health.” Id. ¶¶ 25–26. Plaintiff cites a plethora 25 of governmental agencies and other entities that have reached this conclusion. For 26 example, the “World Health Organization and the International Agency for Research on 27 Cancer (“IARC”) have classified benzene as a Group 1 compound that is carcinogenic to 28 humans.” Id. ¶ 28. The United States Food and Drug Administration (“FDA”) has 1 similarly labeled benzene a “Class 1 solvent,” which means that it “should not be employed 2 in the manufacture of drug substances, excipients, and drug products because of [its] 3 unacceptable toxicity.” Id. ¶ 29. The National Institute for Occupational Safety and 4 Health, the American Petroleum Institute, and multiple academic studies also favor a 5 risk-adverse approach, with one 2010 study commenting that “[t]here is probably no safe 6 level of exposure to benzene, and all exposures constitute some risk.” Id. ¶¶ 30–31. That 7 said, the jury is out as far as what level of benzene exposure is tolerable as the FDA does 8 permit the use of Class 1 solvents “if their use is unavoidable in order to produce a drug 9 product with a significant therapeutic advance,” in which case the solvents should be 10 restricted to two parts per million (“ppm”). Id. 11 The State of California has taken precautionary measures with respect to benzene 12 and other like chemicals beyond those taken at the federal level, two of which Plaintiff 13 highlights in her Complaint. First, Plaintiff cites the California Safe Cosmetics Act of 14 2005 (“CSCA”). See Compl. ¶¶ 43–54. Under the CSCA, manufacturers of cosmetic 15 products containing “a chemical identified as causing cancer or reproductive toxicity” must 16 make certain public disclosures. CAL. HEALTH & SAFETY CODE § 111792(a). Because it 17 has been “given an overall carcinogenicity evaluation of Group 1, Group 2A, or Group 2B 18 by the [IARC],” benzene fits the mold. Id. § 111791.5(b)(2). Plaintiff alleges that P&G 19 has violated the CSCA because it “has never reported the significant and unsafe levels of 20 benzene in any of [its] cosmetic products . . . .” Compl. ¶ 51. Second, Plaintiff cites 21 Proposition 65 (“Prop 65”), which prohibits businesses from knowingly exposing 22 consumers to chemicals known to the state to cause cancer or reproductive toxicity without 23 adequate warnings. See Compl. ¶¶ 55–58 (citing CAL. HEALTH & SAFETY CODE § 25249.5, 24 et seq.). As she does above with respect to the CSCA, Plaintiff alleges that P&G has 25 violated Prop 65 by declining to provide the required warnings despite exposing the public 26 to benzene from the Products. Id. ¶ 57. 27 To support her claim that P&G’s Products contain some amount of benzene, Plaintiff 28 relies on two data points. First, Plaintiff alleges that “[s]everal of the [Products] were 1 independently tested and shown to contain dangerous levels of benzene, a known human 2 carcinogen.” Id. ¶ 7. Though Plaintiff does not crisply define this independent testing, she 3 later references the so-called Valisure Tests, which revealed that the Products “contain 4 some of the highest concentrations of benzene in the cosmetics industry.” Id. ¶ 52. Second, 5 Plaintiff pinpoints a P&G “recall of certain dry conditioner and shampoo products ‘from 6 Herbal Essences due to the presence of benzene.’” Id. ¶ 41. According to Plaintiff, this 7 recall, which took place on December 17, 2021, provides evidence that “P&G was well 8 aware that they were exposing individuals to benzene at levels requiring a warning under 9 [Prop 65].” Id. ¶ 58. Plaintiff alleges that these indicators, coupled together with “the 10 longstanding recommendations of the scientific community extolling the dangerousness of 11 benzene exposure,” demonstrate that “Defendants were aware well in advance of placing 12 the [Products] into the stream of commerce that they were prone to unreasonably high rates 13 of benzene presence,” but they “knowingly failed to take any action to correct the defects 14 in the [Products], including failing to warn or otherwise educate the public,” “in order to 15 advance their pecuniary gains.” Id. ¶¶ 62–65. 16 Plaintiff brought this action on November 9, 2023, in the Superior Court of the State 17 of California. See Compl. After service of the Complaint on April 18, 2024, Defendants 18 timely removed the case to this Court on May 15, 2024. See ECF No. 1 at 4. Plaintiff 19 asserts six causes of action, all under California state law: (1) negligence, (2) failure to 20 warn, (3) design defect, (4) manufacturing defect, (5) breach of implied warranty of 21 merchantability, and (6) fraudulent concealment. See Compl. Defendants filed the instant 22 Motion on June 17, 2024, seeking dismissal of all claims. See Mot. Embedded throughout 23 the Motion in a scattershot fashion are various requests by Defendants to take judicial 24 notice of certain documents and/or websites. The Court begins by addressing these 25 requests. 26 REQUEST FOR JUDICIAL NOTICE 27 Defendants request the Court take judicial notice and/or incorporate by reference the 28 following documents: (1) P&G’s December 17, 2021, recall notice as published on the 1 FDA website (“Recall Notice”); (2) FDA’s December 5, 2022, letter to Valisure 2 questioning the validity of its testing methodology (“Valisure Letter”); (3) the American 3 Cancer Society’s website noting the wide use of benzene (“ACS Website”); (4) FDA’s 4 December 27, 2023, alert regarding the risks of benzene contamination (“FDA Alert”); and 5 (5) California Office of Environmental Health Hazard Assessment’s website regarding safe 6 harbor exposure levels for benzene (“Safe Harbor List”) (collectively, “Noticed 7 Documents”). See Mem. at 8 n.1, 9 n.2, 9 n.3, 10 n.4, 21 n.5.1 8 I. Legal Standard 9 “Generally, district courts may not consider material outside the pleadings when 10 assessing the sufficiency of a complaint under Rule 12(b)(6) of the Federal Rules of Civil 11 Procedure.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018) 12 (citing Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001)). “There are two 13 exceptions to this rule: the incorporation-by-reference doctrine, and judicial notice under 14 Federal Rule of Evidence 201.” Id. Both exceptions “permit district courts to consider 15 materials outside a complaint . . . .” Id. 16 Under the incorporation-by-reference doctrine, a court may “take into account 17 documents ‘whose contents are alleged in a complaint and whose authenticity no party 18 questions, but which are not physically attached to the [plaintiff’s] pleading.’” Knievel v. 19 ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (alteration in original) (quoting In re Silicon 20 Graphics Inc. Secs. Litig., 183 F.3d 970, 986 (9th Cir. 1999)). A defendant may seek to 21 incorporate a document into the complaint in two ways. First, “if the plaintiff refers 22 extensively to the document,” it may be incorporated by reference. United States v. Ritchie, [23] 342 F.3d 903, 908 (9th Cir. 2003). Second, a document may be incorporated by reference 24 if “the document forms the basis of the plaintiff’s claim.” Id. at 908 . A document forms 25 / / / [28] 1 All citations refer to the blue page numbers affixed to the top right corner of each page in the Court’s 1 the basis of the plaintiff’s claim when “the claim necessarily depend[s]” on the document. 2 Khoja, 899 F.3d at 1002 (quoting Knievel, 393 F.3d at 1076 ). 3 “The defendant may offer such a document, and the district court may treat such a 4 document as part of the complaint, and thus may assume that its contents are true for 5 purposes of a motion to dismiss under Rule 12(b)(6).” Ritchie, 342 F.3d at 908 . However, 6 “[t]he incorporation-by-reference doctrine does not override the fundamental rule that 7 courts must interpret the allegations and factual disputes in favor of the plaintiff at the 8 pleading stage.” Khoja, 899 F.3d at 1014 . 9 “[T]he court may judicially notice a fact that is not subject to reasonable dispute 10 because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can 11 be accurately and readily determined from sources whose accuracy cannot reasonably be 12 questioned.” Fed. R. Evid. 201(b). “Accordingly, ‘[a] court may take judicial notice of 13 matters of public record . . . .’” Khoja, 899 F.3d at 999 (quoting Lee, 250 F.3d at 689 ). 14 This would include information “made publicly available by government entities . . . and 15 neither party disputes the authenticity of the web sites or the accuracy of the information 16 displayed therein.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992 , 998–99 (9th Cir. 17 2010). However, “a court cannot take judicial notice of disputed facts contained in such 18 public records.” Khoja, 899 F.3d at 999 (citing Lee, 250 F.3d at 689 ). 19 II. Analysis 20 Defendants’ primary argument with respect to most of the documents subject to the 21 Request for Judicial Notice stems from the fact that the documents are publicly available, 22 mostly from government websites. Defendants go one step further with respect to the 23 Recall Notice and ACS Website, asking the Court to consider the documents to be 24 incorporated by reference, but Defendants provide no substance to this argument, nor do 25 they cite any cases expounding upon the incorporation-by-reference doctrine. See Mem. 26 at 8 n.1, 9 n.3. 27 Plaintiff objects to all five documents except for one, the Recall Notice. See Opp’n 28 at 9–11. As far as the other documents are concerned, Plaintiff argues that Defendants are 1 using the Request for Judicial Notice “as a vehicle to raise factual disputes on the danger 2 of benzene.” Id. at 10. She contends that the safety profile of benzene is a factual matter 3 “that should be addressed at a later stage with the protections of Rule 56 and the benefit of 4 completed discovery.” Id. at 11. 5 Defendants respond that Plaintiff is mischaracterizing the nature of their request. 6 The Request for Judicial Notice, Defendants submit, does not raise a factual dispute as to 7 benzene’s safety but merely lays the “context for the legal requirement that Plaintiff must 8 plead more than conclusory allegations that any amount of benzene is inherently unsafe 9 and that all Herbal Essences products contained benzene.” Reply at 2–3 (emphasis in 10 original). In other words, it is not the truth of the information contained within the 11 documents that Defendants request the Court to take notice of but the existence of the 12 documents themselves. Id. at 2. 13 Defendants are correct. Taken collectively, the Noticed Documents are probative of 14 the fact that certain governmental and nonprofit entities have opined on the safety of 15 benzene exposure, expressing a range of viewpoints as to the pervasiveness of benzene in 16 commercial products and as to how much benzene exposure is permissible. Plaintiff does 17 not question the authenticity of these documents, and their mere existence is undisputed. 18 Thus, to the extent Defendants ask the Court to take judicial notice of the existence of these 19 websites, the request is granted. See Herrington v. Johnson & Johnson Consumer Cos., 20 Inc., No. C 09-1597 CW, 2010 WL 3448531 , at *1 n.1 (N.D. Cal. Sept. 1, 2010) (“The 21 Court takes judicial notice of these documents to the extent that it is not subject to 22 reasonable dispute that the statements made in these documents were made by the entities 23 responsible for their publication.” (citing Fed. R. Evid. 201)). Defendants make clear that 24 they are not asking the Court to take judicial notice of the demonstrated safety of benzene 25 exposure, and, indeed, the Court agrees that it should not take judicial notice “of the truth 26 of the facts asserted in [the Noticed Documents].” Gagetta v. Walmart, Inc., [27] 646 F. Supp. 3d 1164 , 1172 (N.D. Cal. 2022). With that caveat, the Court GRANTS 28 Defendants’ Request for Judicial Notice. 1 With respect to the Recall Notice and ACS Website, the Court declines to consider 2 those documents incorporated by reference. Unlike the doctrine of judicial notice, 3 documents that are incorporated by reference into a complaint are assumed to be “true for 4 purposes of a motion to dismiss under Rule 12(b)(6).” Ritchie, 342 F.3d at 908 . Neither 5 the Recall Notice nor the ACS Website was referred to extensively in the Complaint nor 6 did they form the basis of the claim. See id. (describing how incorporation by reference 7 might be appropriate “when a plaintiff’s claim about insurance coverage is based on the 8 contents of a coverage plan, or when a plaintiff’s claim about stock fraud is based on the 9 contents of SEC filings” (first citing Parrino v. FHP, Inc., 146 F.3d 699 , 705–06 (9th Cir. 10 1998); and then citing Silicon Graphics, 183 F.3d at 986 )). Thus, these two documents are 11 not incorporated by reference into the Complaint. In any event, Defendants fail to advance 12 concrete arguments to the contrary, so the Court considers this undeveloped argument 13 waived. See Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994) 14 (considering argument waived due to the “failure to present a specific, cogent argument for 15 [the court’s] consideration”). 16 MOTION TO DISMISS 17 I. Legal Standard 18 Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the 19 defense that the complaint “fail[s] to state a claim upon which relief can be granted.” To 20 survive a 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as 21 true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662 , 22 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is 23 facially plausible when the facts pled “allow[] the court to draw the reasonable inference 24 that the defendant is liable for the misconduct alleged.” Id. That is not to say that the claim 25 must be probable, but there must be “more than a sheer possibility that a defendant has 26 acted unlawfully.” Id. Facts “‘merely consistent with’ a defendant’s liability” fall short of 27 a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557 ). 28 / / / 1 Though this plausibility standard “does not require ‘detailed factual 2 allegations,’ . . . it [does] demand[] more than an unadorned, the-defendant-unlawfully3 harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555 ). In other words, a 4 complaint will not suffice “if it tenders ‘naked assertion[s]’ devoid of ‘further factual 5 enhancement.’” Id. (alteration in original) (quoting Twombly, 550 U.S. at 557 ). Put 6 differently, “a formulaic recitation of the elements of a cause of action will not do.” 7 Twombly, 550 U.S. at 555 . 8 Review under Rule 12(b)(6) requires a context-specific analysis involving the 9 Court’s “judicial experience and common sense.” Iqbal, 556 U.S. at 679 . In performing 10 that analysis, “a district court must accept as true all facts alleged in the complaint, and 11 draw all reasonable inferences in favor of the plaintiff.” Wi-LAN Inc. v. LG Elecs., Inc., [12] 382 F. Supp. 3d 1012, 1020 (S.D. Cal. 2019). “[W]here the well-pleaded facts do not 13 permit the court to infer more than the mere possibility of misconduct, the complaint has 14 alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. 15 at 679 (second alternation in original). If a complaint does not survive Rule 12(b)(6), a 16 court grants leave to amend unless it determines that no modified contention “consistent 17 with the challenged pleading could . . . possibly cure the deficiency.” Schreiber Distrib. 18 Co. v. Serv-Well Furniture Co., 806 F.2d 1393 , 1401 (9th Cir. 1986). 19 II. Analysis 20 Defendants begin their Motion by raising a global challenge to all six of Plaintiff’s 21 claims on causation grounds. Each cause of action in this suit, they say, “require[s] a 22 plausible allegation that benzene exposure from her Herbal Essences products caused 23 Plaintiff’s CLL.” Mem. at 12. But according to Defendants, the Complaint fails this 24 causation requirement on two fronts, both with respect to whether the specific personal 25 care products that Plaintiff used contained benzene and whether those same personal care 26 products contained enough benzene to have caused Plaintiff’s disease. See id. Defendants 27 then argue that this pleading failure resulted in additional deficiencies in Plaintiff’s product 28 liability claims. They also argue that Plaintiff’s fraudulent concealment claim lacks the 1 requisite particularity required by Federal Rule of Civil Procedure 9(b) and that Plaintiff 2 does not sufficiently allege that Defendants Target or Walmart could be liable for any 3 claims besides the strict liability claims. See id. at 23–24. 4 A. Causation 5 Defendants’ global arguments surrounding causation apply equally to all six of 6 Plaintiff’s claims. This is because all six causes of action require a showing of causation 7 in order to be viable. See U.S. Liab. Ins. Co. v. Haidinger-Hayes, Inc., 463 P.2d 770 , 774 8 (Cal. 1970) (stating the principle that negligence requires the alleged breach to be the “the 9 proximate or legal cause of the resulting injury”); Greenman v. Yuba Power Prods., Inc., [10] 377 P.2d 897, 900 (Cal. 1963) (en banc) (“A manufacturer is strictly liable in tort when an 11 article he places on the market . . . proves to have a defect that causes injury to a human 12 being.”); Gutierrez v. Carmax Auto Superstores Cal., 248 Cal. Rptr. 3d 61, 74 (Ct. App. 13 2018) (noting that a cause of action for implied warranty of merchantability requires 14 sufficient allegations of causation); Graham v. Bank of Am., N.A., 172 Cal. Rptr. 3d 218 , 15 228 (Ct. App. 2014) (requiring the plaintiff to “sustain[] damage as a result of the 16 [fraudulent] concealment”). Accordingly, the Court begins by addressing these universally 17 applicable arguments. 18 1. Sufficiency of Allegations Related to Benzene Level in Products 19 One ground upon which Defendants challenge Plaintiff’s allegations is that Plaintiff 20 failed to plausibly allege that she was exposed to high enough benzene levels to cause her 21 disease. Although Plaintiff alleged that several of the Products “contain dangerous levels 22 of benzene,” Defendants argue that this allegation is far too conclusory because Plaintiff 23 “does not specify how much benzene Plaintiff believes was present in those products.” 24 Mem. at 15–16 (quoting Compl. ¶ 7). Allegations regarding the specific amount of 25 benzene present in the Products and allegations regarding the specific benzene level needed 26 to elevate cancer risk are required to state a plausible claim, Defendants say. Id. at 16. 27 Plaintiff counters by highlighting the numerous studies and reports cited in her 28 Complaint from entities—including the Department of Health and Human Services 1 (“DHHS”), WHO, IARC, FDA, and more—“all of whom opine that any level of benzene 2 exposure is dangerous.” Opp’n at 15 (citing Compl. ¶¶ 27–33). According to Plaintiff, 3 these studies not only suggest that benzene is dangerous, but they also reveal a causal 4 connection between benzene exposure and CLL. Id. 5 On this point, the Court concludes that Plaintiff has satisfied her pleading 6 requirement by relying upon sufficient academic literature suggesting a plausible 7 connection between benzene exposure and CLL. For example, Plaintiff cites a study from 8 the American Petroleum Institute from 1948 stating that “it is generally considered that the 9 only absolutely safe concentration for benzene is zero.” Compl. ¶ 31. She also cites a 1939 10 study from the Journal of Industrial Hygiene and Toxicology stating that “exposure over a 11 long period of time to any concentration of benzene greater than zero is not safe.” Id. More 12 recently, a 2010 study in the Annual Review of Public Health stated that “[t]here is 13 probably no safe level of exposure to benzene, and all exposures constitute some risk[.]” 14 Id. Plaintiff goes on to cite data from the IARC linking benzene exposure to CLL, the 15 specific form of cancer she developed. Id. ¶ 28. 16 These factual allegations by no means prove that exposure to benzene does indeed 17 cause CLL, but they at minimum show that such a claim is plausible. Defendants resist 18 this conclusion by citing to countervailing evidence suggesting that only exposure to “high 19 levels of benzene,” i.e., industrial levels, can cause an increased risk of cancer. Mem. at 16 20 (citing ACS Website). They emphasize the fact that “benzene is ubiquitous in the 21 environment,” a fact recognized by Plaintiff in the Complaint. Id. (citing Compl. ¶ 25). 22 But Plaintiff sufficiently alleges that exposure to even low levels of benzene can increase 23 health risks, distinguishing this case from Brief v. Idelle Labs, Ltd., which Defendants rely 24 upon for the proposition that Plaintiff must allege exposure to a “high level” of benzene to 25 make her claim plausible. See Opp’n at 17 (citing Brief v. Idelle Labs, Ltd., 26 No. 2:22-cv-05085 (WJM), 2023 WL 2860345 , at *3 (D.N.J. Apr. 10, 2023)). There, 27 unlike here, the complaint contained no allegations that exposure to low levels of benzene 28 could result in cancer. See Brief, 2023 WL 2860345 , at *1. Thus, the allegations in Brief 1 suffered from a disconnect between the plaintiff’s exposure levels and the cited academic 2 literature. See id. at *3. 3 No such disconnect exists here. Plaintiff alleges sufficient facts supporting the 4 proposition that exposure to low levels of benzene can cause CLL. Plaintiff’s allegation 5 that she was “regularly” exposed to benzene from the Products is enough to make her 6 claims plausible with respect to whether or not slight benzene exposure could cause CLL. 7 See Compl. ¶ 13. Defendants’ only other cited case is inapposite as the cause of action in 8 that case was subject to the heightened pleading standard of Federal Rule of Civil 9 Procedure 9(b) associated with fraud claims.2 See Hadley v. Kellogg Sales Co., [10] 243 F. Supp. 3d 1074, 1090 (N.D. Cal. 2017). In general, “[w]hat constitutes an ‘unsafe 11 level’ . . . is a question of fact not appropriately resolved on a motion to dismiss.” 12 Rodriguez v. Mondelez Global LLC, 703 F. Supp. 3d 1191 , 1205 (S.D. Cal. 2023) (citing 13 Bland v. Sequel Nat. Ltd., No. 18-cv-04767-RS, 2019 WL 4674337 , at *4 (N.D. Cal. 14 Aug. 2, 2019)). The Court declines to resolve that question of fact here. 15 2. Sufficiency of Allegations Related to Plaintiff’s Benzene Exposure 16 Defendants’ second causation-based argument is a closer call. In addition to arguing 17 that Plaintiff insufficiently alleged a causal nexus between benzene exposure and cancer, 18 they also argue that Plaintiff insufficiently alleged that she was exposed to benzene in the 19 first place. This argument is based on Plaintiff’s “general allegations” that she used Herbal 20 Essences personal care products, which omit any reference to the specific products that 21 Plaintiff used. See Mem. at 13. Because under California law, a plaintiff must “identify 22 each product that allegedly caused [her] injury,” Defendants claim that Plaintiff’s “general 23 allegations” fail to state a plausible claim. See id. (quoting Bockrath v. Aldrich Chem. Co., 24 Inc., 980 P.2d 398, 404 (Cal. 1999)). [26] 2 In Hadley, the Court’s analysis with respect to what constituted an unhealthy level of sugar in cereal and [27] cereal bars was only relevant to the question of whether the defendant’s statements were false or 28 misleading. See 243 F. Supp. 3d at 1090 . That question has minimal bearing on the issue before the 1 In response, Plaintiff argues that Defendants have mischaracterized the applicable 2 pleading standard as demanding a heightened level of particularity more akin to Federal 3 Rule of Civil Procedure 9(b) rather than the one required by Federal Rule of Civil 4 Procedure 8(a), the latter of which is applicable to the instant Motion. Opp’n at 11–14. 5 When analyzed in light of the proper standard, Plaintiff claims that she has stated a 6 plausible claim by alleging her habitual purchase and use of “Herbal Essences dry shampoo 7 and conditioner.” Id. at 14 (citing Compl. ¶¶ 6, 7, 20, 38). Plaintiff argues that her 8 proffered evidence of benzene presence in the Products—third-party testing, i.e., the 9 Valisure Tests, and the P&G recall—adds credence to her theory that the personal care 10 products she used contained benzene. See id. at 14–15. 11 The Court begins by noting that the law regarding the appropriate level of generality 12 with which to analyze the plausibility of defective product claims appears unsettled within 13 the Ninth Circuit. Both sides cite to myriad cases from within the Circuit and without, 14 some of which conclude that similar allegations as here successfully state a claim while 15 others come out the other way. To thoroughly convey the disparate nature of these 16 decisions, the Court sets out to summarize the case law at present, beginning with 17 Defendants’ cases. 18 Naturally, Defendants cite to instances where courts have rejected the plaintiff’s 19 defective product claims. Most closely analogous to the instant action are two cases out of 20 Louisiana, both of which, as here, involve allegations that P&G’s products caused the 21 plaintiffs’ cancer. In Rooney v. Procter & Gamble Co., the court dismissed the plaintiffs’ 22 claims under the Louisiana Products Liability Act (“LPLA”) where the plaintiffs alleged 23 that they developed breast cancer as a result of using Secret antiperspirant, one of P&G’s 24 antiperspirant products. No. 22-1164, 2023 WL 1419870 , at *1 (E.D. La. Jan. 31, 2023). 25 There, as here, the plaintiffs relied upon the Valisure Tests to show that the antiperspirant 26 products they used contained benzene. See id. The plaintiffs alleged that they retained 27 possession of a partially used six-ounce can of Secret Aerosol Powder Fresh, a product the 28 / / / 1 Valisure Tests concluded contained benzene in certain batches identified by lot number. 2 See id. at *4. 3 Despite allegations matching the product the plaintiffs used to one that had been 4 shown to contain benzene in the Valisure Tests, the court dismissed the claims. Id. The 5 court emphasized that Valisure tested “108 unique batches of products,” but “only 59 had 6 detectable levels of benzene, and that ‘many of the body spray products Valisure tested did 7 not contain detectable levels of benzene.’” Id. Thus, even taking the plaintiffs’ allegations 8 as true, “[t]hat two batches of the kind of antiperspirant product Rooney used allegedly 9 contained benzene [did] not render plausible plaintiffs’ assertion that Rooney herself was 10 exposed to benzene.” Id. That case, therefore, stands for the proposition that a plaintiff 11 must match the product allegedly causing her injury to granular evidence showing that the 12 specific batch, or lot number, used by the plaintiff was affected by the defect. 13 Similarly, in Foreman v. Procter & Gamble Co., the court dismissed claims that the 14 plaintiffs’ multiple myeloma was caused by benzene exposure from P&G’s Secret Powder 15 Fresh 24 HR Aerosol spray. No. 2:23-CV-00076, 2023 WL 8853725 , at *1 (W.D. La. 16 Dec. 20, 2023). As in Rooney, the plaintiffs in Foreman relied upon the Valisure Tests to 17 infer that, because some batches of the Secret product contained benzene, then it was 18 plausible that all batches of the Secret products contained benzene. See id. at *3. However, 19 like the court in Rooney, the court in Foreman focused on the “significant variability in the 20 level of benzene from batch to batch tested” by Valisure and concluded that the plaintiffs’ 21 claims were insufficient without the “missing element” concerning “the batch or lot 22 number of any can of spray actually used by [the plaintiffs].” Id. at *4. This case and 23 Rooney suggest that courts should analyze this issue at a sub-product level of generality. 24 Plaintiff’s attempt to distinguish Rooney and Foreman leaves much to be desired. 25 True, both cases are nonbinding as out-of-circuit district court cases, but Plaintiff herself 26 only cites to district court cases which are equally nonbinding on the Court. See Camreta 27 v. Greene, 563 U.S. 692, n.7 (2011) (“A decision of a federal district court judge is not 28 binding precedent in either a different judicial district, the same judicial district, or even 1 upon the same judge in a different case.” (quoting 18 J. MOORE ET AL., MOORE’S FEDERAL 2 PRACTICE § 134.02[1][d], (3d ed. 2011))). On a more substantive level, Plaintiff 3 distinguishes both cases because the plaintiffs there only relied solely upon third-party 4 testing, i.e., the Valisure Tests, whereas here, Plaintiff relies not only on the Valisure Tests 5 but also P&G’s own internal testing that resulted in the 2021 recall. See Opp’n at 16, 6 18–19. But the Rooney and Foreman courts suggested not that the plaintiffs’ claims would 7 have survived dismissal if only for more testing; those courts specifically rejected the 8 product liability claims because of a failure to tie the testing to the particularized products 9 used by the plaintiffs on a granular sub-product level. See Rooney, 2023 WL 1419870 , 10 at *4; Foreman, 2023 WL 8853725 , at *4. The Complaint here, like the ones in Rooney 11 and Foreman, fails to allege that Plaintiff used personal care products from the same batch 12 or lot as those tested by Valisure or identified in the 2021 recall. Thus, if the Court found 13 those cases persuasive, it would dismiss the claims here as well. More than just the Rooney 14 and Foreman courts have followed that approach. See Schloegel v. Edgewell Personal 15 Care Co., No. 4:21-cv-00631-DGK, 2022 WL 808694 , at * (W.D. Mo. Mar. 16, 2022) 16 (dismissing claim because the plaintiff “failed to allege that she actually purchased Banana 17 Boat Sunscreen products which were adulterated with benzene” when only “some samples” 18 of the product had been found to be adulterated); Brief, 2023 WL 2860345 , at *2–3 19 (dismissing defective product claim where the plaintiffs failed to allege that the product 20 they used was from the same lot as the ones that contained benzene). 21 On the other hand, as one might expect, Plaintiff cites a long list of cases where 22 courts have accepted defective product claims at a much higher level of generality. 23 Consider Singleton v. Chevron USA, Inc., where the plaintiff brought claims under the 24 LPLA alleging that his multiple myeloma was caused by “exposure to benzene and 25 benzene-containing products allegedly occur[ing] daily over the course of his 42 years of 26 work at various locations for various, unknown employers, while he labored as a painter, 27 mechanic, construction worker, and drum filler.” 835 F. Supp. 2d 144, 145 (E.D. La. 28 / / / 1 2011). The plaintiff alleged that, over the decades, he was tasked with “painting and 2 cleaning paint with benzene-containing products such as paints, solvents, primers, mineral 3 spirits, and thinners.” Id. Despite these generalized allegations, the court had no trouble 4 sustaining the claims: 5 Plaintiffs have sufficiently plead enough facts to give Defendant 6 Valspar fair notice of the claims against it. The mere fact that 7 Mr. Singleton does not yet point to a specific Valspar product 8 and specific dates of exposure does not make the claim 9 implausible under Iqbal. At the pleading stage, a plaintiff is not 10 expected, nor in most cases is he able, to articulate a claim’s 11 precise factual contours that may only later be elicited through 12 discovery. The complaint alleges that Valspar manufactured 13 certain plastic primers, paints and thinners. It need not further 14 give “brand name” or other specific information pertaining to 15 these products. [16] Id. at 148 . Merely alleging that “certain classes of products” were defective was enough. [17] Id. 18 In another case, Martin v. Crown Equipment Corp., the court followed Singleton to 19 hold that allegations of the presence of carcinogens in paint manufactured by the defendant 20 were sufficient to survive the pleading stage. No. 1:13-CV-174-MHS, [21] 2013 WL 12063924 , at *2 (N.D. Ga. Apr. 15, 2013). Failing to name “the specific ‘brand 22 name’ of the product or the precise dates of [the plaintiff’s] exposure [did] not make their 23 claims implausible.” Id. Instead, developing factual details such as these was “properly 24 left to be determined during the course of discovery.” Id. Taken together, Singleton and 25 Martin stand for the proposition that generalized product allegations, as opposed to the 26 granular product allegations required by Rooney and Foreman, are enough at the pleading 27 stage. 28 / / / 1 Like Plaintiff, Defendants’ attempt to distinguish these cases is without force. 2 Rather than acknowledge that Singleton and Martin fall squarely opposed to their position, 3 Defendants relegate discussion of those cases to a footnote, positing that the instant case is 4 different because P&G has issued a limited recall that “identified specific batches with a 5 risk for benzene and stated that other products were unaffected.” Reply at 8 n.7. This piece 6 of evidence, according to Defendants, purportedly undermines the plausibility of Plaintiff’s 7 theory by calling into question whether the specific personal care products she used 8 contained benzene. See id. But there was no recall at all in Singleton or Martin, at least 9 not one alleged by the plaintiffs. If anything, the allegations in those two cases were as 10 bare as bare can be, yet the courts still found the claims plausible because the plaintiffs 11 alleged simply that “certain classes of products” were affected. Singleton, 835 F. Supp. 2d 12 at 148 . Consequently, Singleton and Martin cannot be distinguished on that basis, for 13 Plaintiff cannot be faulted for alleging even more evidence than the plaintiffs did in those 14 cases. 15 Thus, the Court must take a fresh look at what level of generality is necessary to 16 state a plausible defective product claim. Although the Court is unaware of any Ninth 17 Circuit precedent directly on point, it finds that court’s recent opinion in Bowen v. 18 Energizer Holdings, Inc.—decided during the pendency of this Motion—instructive. [19] 118 F.4th 1134 (9th Cir. 2024). There, the plaintiff brought strikingly similar allegations 20 to the ones in this case; she alleged “that the Banana Boat sunscreen she purchased was 21 adulterated with benzene” and that the defendants failed to indicate as much on their labels, 22 resulting in false or misleading advertising. Id. at 1138. The plaintiff specified that she 23 purchased three distinctive products—Banana Boat Ultra Sport Sunscreen SPF 100 (“Ultra 24 Sport 100”), Banana Boat Ultra Sport Sunscreen SPF 50 (“Ultra Sport 50”), and Banana 25 Boat Ultra Sport Sunscreen SPF 30 (“Ultra Sport 30”)—from a Rite Aid pharmacy between 26 2017 and 2020, and that each of the products contained benzene. Id. at 1139. In addition 27 to these straightforward allegations, the plaintiff supplemented her complaint with 28 additional evidence of benzene adulteration, consisting of personal testing of a bottle she 1 retained possession of, independent testing by Valisure, and a voluntary product recall. Id. 2 at 1139–40. 3 The defendants moved to dismiss the complaint on two grounds, lack of Article III 4 standing under Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim under 5 Federal Rule of Civil Procedure 12(b)(6). Id. at 1141. By the time the case got to the Ninth 6 Circuit, only a thorny procedural question remained concerning the proper standard of 7 review when a defendant challenges jurisdiction and the jurisdictional basis is intertwined 8 with the merits. Id. at 1142–43. Though that procedural question is not at issue in this 9 case, the court did touch on a point relevant to the instant Motion. 10 While focusing most of its attention on how lower courts should analyze a factual 11 challenge to jurisdiction, the Ninth Circuit also addressed, albeit briefly, the precise issue 12 presently before the Court. The defendants in Bowen only challenged the factual basis of 13 the plaintiff’s claims with respect to two of the sunscreen products she purchased, the Ultra 14 Sport 50 and Ultra Sport 100. Id. at 1149 n.13. However, the defendants “did not produce 15 evidence showing that the Ultra Sport 30 did not contain benzene,” so their challenge with 16 respect to Ultra Sport 30 was a facial one, analyzed under the Rule 12(b)(6) standard 17 applicable here. See id. (emphasis omitted) (citing Leite v. Crane Co., 749 F.3d 1117 , 1121 18 (9th Cir. 2014)). Under the Rule 12(b)(6) standard of review, the court explained that 19 “although [the plaintiff] did not provide evidence to support the allegation that the Ultra 20 Sport 30 she bought, used, and discarded contained benzene, she was not required to do so 21 to withstand Defendants’ motion to dismiss.” Id. The court went on to conclude that, 22 under the Rule 12(b)(6) standard, “in light of [the plaintiff’s] allegations about the other 23 Banana Boat spray products she purchased that contained benzene and allegations 24 regarding [Defendant’s] recall of another SPF 30 Banana Boat product . . ., [the plaintiff] 25 has plausibly alleged that the Ultrasport 30 bottle that she purchased and used contained 26 benzene.” Id. 27 Although the foregoing discussion was not central to the primary issue in Bowen, it 28 does provide guidance to the Court. Importantly, the court concluded that the presence of 1 benzene in the specific bottle of Ultra Sport 30 purchased and used by the plaintiff was 2 plausible based on mere circumstantial allegations related to “other Banana Boat spray 3 products” and a “recall of another SPF 30 Banana Boat product.” Id. (emphasis added). 4 The plaintiff’s usual practice was to use the Banana Boat products and then discard the 5 bottles when empty; thus, she did not allege any facts—with the exception of one Ultra 6 Sport 50 bottle—directly demonstrating the presence of benzene in the specific bottles she 7 purchased. Id. at 1139 . Yet the court was unfazed by this omission, or even the lack of 8 any mention of the batch number from which the plaintiff’s bottles came.3 See id. at 1149 9 n.13. 10 For this reason, the Court finds the rule espoused in Defendants’ out-of-circuit cases 11 in conflict with how the Ninth Circuit is likely to view this case. Those cases, which require 12 factual allegations on the sub-product level, impose too demanding a standard on plaintiffs. 13 See, e.g., Rooney, 2023 WL 1419870 , at *4; Foreman, 2023 WL 8853725 , at *4. Indeed, [16] 3 The Court notes that there is an important distinction between a false advertising case like Bowen and a defective product case as the Court is faced with here. That said, the distinction does not impact the 17 Court’s analysis. 18 In a false advertising case, a plaintiff can establish an “overpayment” injury merely by alleging “that she was exposed to false information about the product purchased, which caused the product to be sold at a [19] higher price, and that she ‘would not have purchased the goods in question absent this misrepresentation.’” 20 Bowen, 118 F.4th at 1145 (quoting Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 966 (9th Cir. 2018)). Such an injury can arise even where the false information complained of did not necessarily 21 manifest itself in the specific product purchased by the plaintiff. See Dana v. Hershey Co., 180 F. Supp. 3d 652 , 662–63 (N.D. Cal. 2016) (finding it “plausible that a consumer would place less 22 value on a product produced from a supply chain involving severe labor abuses,” even if the consumer does not allege that the particular product that she purchased was infected by the labor abuses). [23] 24 Conversely, in a defective product case, the plaintiff must do more by alleging that the particular product complained of was defective such that the defect was the direct and proximate cause of her injury. See 25 Sclafani v. Air & Liquid Sys. Corp., 14 F. Supp. 3d 1351, 1355 (C.D. Cal. 2014) (“The plaintiff ‘must prove that the defective products supplied by the defendant were a substantial factor in bringing about his 26 or her injury.’” (quoting Rutherford v. Owens-Illinois, Inc., 941 P.2d 1203, 1214 (Cal. 1997))). Although Bowen concerned a false advertising claim, the language in that case may be applied to the stricter standard [27] for defective product claims because the court determined that the plaintiff had “plausibly alleged that the 28 Ultrasport 30 bottle that she purchased and used contained benzene.” Bowen, 118 F.4th at 1149 n.13 1 one of the cases cited by Defendants relies on the Eighth Circuit precedent of Wallace v. 2 ConAgra Foods, Inc., which holds that in “the context of defective products, ‘it is not 3 enough for a plaintiff to allege that a product line contains a defect or that a product is at 4 risk for manifesting this defect; rather, the plaintiffs must allege that their product actually 5 exhibited the alleged defect.’” Schloegel, 2022 WL 808694 , at *2 (quoting Wallace v. 6 ConAgra Foods, Inc., 747 F.3d 1025, 1030 (8th Cir. 2014)). Although other circuits have 7 seemingly adopted the same standard, the Ninth Circuit has not followed suit. See In re 8 Recalled Abbott Infant Formula Prods. Liab. Litig., 97 F.4th 525 , 530–32 (7th Cir. 2024) 9 (following Wallace and indicating that the Eleventh, Third, and Fifth Circuits have done 10 the same). At least one court within this circuit has already expressed doubt that the rule 11 from Wallace is workable, and Bowen provides an additional datum from which to deduce 12 that the Ninth Circuit would decline to follow its sister circuits with respect to this issue. 13 See Dana, 180 F. Supp. 3d at 662 n.8 (rejecting Wallace by noting that “it would be a 14 bizarre result if sellers advertising food as halal or kosher, diamonds as conflict-free, or 15 products as union-made could knowingly mix compliant and non-compliant products with 16 impunity so long as there was no way for a buyer to trace the specific item he or she 17 purchased back to the source”). 18 Though the Court does not find Wallace or Defendants’ cases persuasive, neither 19 does it find persuasive the decisions cited by Plaintiff that rendered plausible defective 20 product claims where the allegations failed entirely to specify a particular product. Those 21 cases were decided upon the outdated premise that the rationale behind the pleading 22 standard was merely to “plead enough facts to give [the defendant] fair notice of the claims 23 against it.” See Singleton, 835 F. Supp. 2d at 148 ; Martin, 2013 WL 12063924 , at *2 24 (adopting the reasoning of Singleton). But that rationale was reconceived in Twombly, 25 where the Supreme Court focused on the plausibility of the allegations, explaining that 26 “[w]ithout some factual allegation in the complaint, it is hard to see how a claimant could 27 satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but 28 also ‘grounds’ on which the claim rests.” Twombly, 550 U.S. at 555 n.3 (emphasis added) 1 (citing 5 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1202, at 94, 95 2 (3d ed. 2004)). 3 With the post-Twombly emphasis on the plausibility of the claims, a plaintiff in a 4 defective product suit must allege more than a “class[] of products” or even a product line, 5 as some courts have allowed in the past. See Singleton, 835 F. Supp. 2d at 148 . Instead, a 6 plaintiff must at least allege what the defective product is. To accept less than this is to 7 preclude the Court from making a good faith determination as to whether the plaintiff’s 8 claims are plausible, as is required by Twombly and Iqbal. There may be certain 9 idiosyncratic situations, such as in the case of an alleged defective medical device, where 10 requiring a plaintiff to plead a specific product imposes an “onerous pleading burden,” but 11 this is not one of those situations. See Coleman v. Boston Sci. Corp., 2011 WL 1532477 , 12 at *2. Unlike there, where an “injustice [may] result from requiring specific identification 13 of a precise product during the pleading phase” due to the “manufacturers [being] in a 14 better position to ascertain which of their devices was likely used in a given procedure,” in 15 this case, Plaintiff is much better situated to allege which of the Herbal Essences shampoo 16 and conditioner products she used. See id. at *5. This outcome is consistent with Bowen, 17 where the court determined that factual allegations of benzene exposure were plausible 18 where the plaintiff identified three specific affected products. Bowen, 118 F.4th at 1139. 19 Accordingly, because Plaintiff has failed to allege which Herbal Essences products 20 she actually purchased and used, she has failed to state a claim as to all six causes of action.4 21 All claims are, thus, DISMISSED WITHOUT PREJUDICE. Despite Defendants’ 22 request for the Court to deny Plaintiff’s request for leave to amend, Reply at 11 (citing 23 Opp’n at 28–29), Plaintiff’s claims can clearly be cured by amendment, so Plaintiff will be 24 given leave to amend. See Foman v. Davis, 371 U.S. 178, 182 (1962) (“Rule 15(a) declares 25 that leave to amend ‘shall be freely given when justice so requires.”). [26] 27 4 It is worth repeating that Plaintiff need not allege the batch or lot numbers from which the products she 28 purchased are from. It is enough for Plaintiff to identify the product(s) by name. Only then can the Court 1 B. Fraudulent Concealment 2 Though the Court need not address the remainder of the Parties’ arguments, it will 3 briefly do so with respect to Plaintiff’s fraudulent concealment claim in the interests of 4 judicial economy. The thrust of Plaintiff’s claim is that the Defendants were aware of the 5 presence of benzene in the Products but intentionally maintained the Products on the 6 market while actively deceiving the public. Compl. ¶ 101–10. 7 In California, plaintiffs alleging fraudulent concealment must plead five elements: 8 (1) [T]he defendant must have concealed or suppressed a 9 material fact, (2) the defendant must have been under a duty to 10 disclose the fact to the plaintiff, (3) the defendant must have 11 intentionally concealed or suppressed the fact with the intent to 12 defraud the plaintiff, (4) the plaintiff must have been unaware of 13 the fact and would not have acted as he did if he had known of 14 the concealed or suppressed fact, and (5) as a result of the 15 concealment or suppression of the fact, the plaintiff must have 16 sustained damage. 17 Kaldenbach v. Mut. of Omaha Life Ins. Co., 100 Cal. Rptr. 3d 637 , 652 (Ct. App. 2009) 18 (quoting Roddenberry v. Roddenberry, 51 Cal. Rptr. 2d 907, 926 (Ct. App. 1996)). 19 Because this is a fraud claim, Federal Rule of Civil Procedure 9(b) sets the bar for 20 Plaintiff’s pleadings. See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 , 1102–03 21 (9th Cir. 2003). Under Rule 9(b), “[i]n alleging fraud or mistake, a party must state with 22 particularity the circumstances constituting fraud or mistake.” These allegations must be 23 “specific enough to give defendants notice of the particular misconduct which is alleged to 24 constitute the fraud charged so that they can defend against the charge and not just deny 25 that they have done anything wrong.” Bly-Magee v. California, 236 F.3d 1014 , 1019 26 (9th Cir. 2001) (quoting Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir. 1993)) (internal 27 quotation marks omitted). “Averments of fraud must be accompanied by ‘the who, what, 28 when, where, and how’ of the misconduct charged. [A] plaintiff must set forth more than 1 the neutral facts necessary to identify the transaction. The plaintiff must set forth what is 2 false or misleading about a statement, and why it is false.” Vess, 317 F.3d at 1106 (citations 3 omitted). 4 Plaintiff’s allegations in support of her fraudulent concealment claim do not meet 5 Rule 9(b)’s heightened pleading standard. Although the Complaint alleges that “P&G 6 knowingly falsified their test results, ignored and suppressed data, abdicated their 7 responsibility to test, and/or further falsely mischaracterized adverse test data,” it does not 8 allege who falsified the test results, when and where the test results were falsified, or how 9 they were falsified. See id. Moreover, Plaintiff asserts this claim against all Defendants, 10 yet she alleges no facts whatsoever to suggest that either Walmart or Target had any 11 involvement in the alleged concealment. Accordingly, this claim falls far short of the 12 demands of Rule 9(b). 13 CONCLUSION 14 In light of the foregoing, the Court GRANTS Defendants’ Motion to Dismiss (ECF 15 No. 14). All claims are DISMISSED WITHOUT PREJUDICE. As the Court cannot 16 definitively conclude doing so would be futile, the Court will provide Plaintiff the 17 opportunity to amend. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Within 18 twenty-one (21) days of this Order, Plaintiff either (1) SHALL FILE an amended 19 complaint, or (2) SHALL INDICATE to the Court that it will not do so. Failure to timely 20 select either of the above options may result in the dismissal of this action pursuant to 21 Federal Rule of Civil Procedure 41(b). See Applied Underwriters, Inc. v. Lichtenegger, [22] 913 F.3d 884 , 890–91 (9th Cir. 2019) (explaining that courts may dismiss an action under 23 Rule 41(b) when a plaintiff fails to comply with a court order requiring the filing of an 24 amended complaint). Any amended complaint must be complete in and of itself without 25 reference to Plaintiff’s original Complaint; claims not realleged in the amended complaint 26 will be considered waived. See S.D. Cal. CivLR 15.1; Lacey v. Maricopa County, 27 / / / 28 / / / 1 || 693 F.3d 896, 928 (9th Cir. 2012) (noting claims dismissed with leave to amend that are 2 realleged in an amended pleading may be “considered waived”). 3 IT IS SO ORDERED. 4 ||Dated: February 6, 2025 tt 5 ja Janis L. Sammartino ‘ United States District Judge