Castillo v. Walmart, Inc.

[2] 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION [6] 7 REBECA CASTILLO, Case No. 5:24-cv-06757-BLF 8 Plaintiff, ORDER GRANTING IN PART AND 9 v. DENYING IN PART DEFENDANT’S MOTION TO DISMISS; AND 10 WALMART, INC., GRANTING DEFENDANT’S MOTION TO STRIKE 11 Defendant. [Re: Dkt. No. 21] [12] 13 Plaintiff Rebeca Castillo (“Castillo”) brings this putative class action on behalf of herself 14 and a proposed class of consumers seeking redress for Defendant Walmart, Inc.’s (“Walmart”) 15 alleged “deceptive practices associated with the advertising, labeling, and sale of its Parent’s 16 Choice Yogurt Bites Freeze-Dried & Yogurt Fruit Snacks.” Dkt. No. 1 (“Compl.”) ¶ 1. Castillo 17 alleges that, among various “clean label claims” related to the Yogurt Bites, “Walmart boldly 18 claims the Product contains ‘No Preservatives.’” Id. ¶ 2. Yet the ingredient label reveals that the 19 snacks contain “ascorbic acid,” which Plaintiff alleges is “a chemical preservative.” Id. ¶ 3. 20 Before the Court is Walmart’s Motion to Dismiss and Motion to Strike. Dkt. No. 21 21 (“Mot.”). Castillo filed a brief in opposition to the motion. Dkt. No. 23 (“Opp.”). Walmart filed 22 a reply in support of its motion. Dkt. No. 27 (“Reply”). The Court held a hearing on the motion 23 on April 24, 2025. 24 For the following reasons, the Court GRANTS IN PART AND DENIES IN PART 25 Walmart’s motion to dismiss and GRANTS Walmart’s motion to strike. 26 I. BACKGROUND 27 The following facts alleged in Plaintiff’s Complaint are taken as true for purposes of this 1 Plaintiff Rebeca Castillo is a resident of San Jose, California who has regularly purchased 2 Walmart’s Yogurt Bites over the past two years. Compl. ¶ 11–12. She paid a premium for the 3 products in reliance on the “clean label” claim that the Yogurt Bites contained “No Preservatives.” 4 See id. ¶ 49. However, as is apparent from the ingredient label, Yogurt Bites do contain ascorbic 5 acid. Id. ¶ 3. Plaintiff alleges that the Food and Drug Administration (“FDA”) identifies ascorbic 6 acid as a “preservative,” which is defined under federal regulations as a “chemical that, when 7 added to food, tends to prevent or retard deterioration thereof.” Id. ¶¶ 21–24 (citing 21 C.F.R. 8 § 101.22(a)(5)). Moreover, Plaintiff alleges that “ascorbic acid is effective as, and functions as, a 9 preservative in Defendant’s Product even when used in relatively low quantities.” Id. ¶ 29. Based 10 on “an independent chemical analysis of Walmart’s Product,” the Yogurt Bites have “an ascorbic 11 acid content of 0.163%.” Id. ¶¶ 30–31. This is twice the level that is suggested for use to preserve 12 color and freshness. Id. ¶ 31. 13 By including a “No Preservatives” claim in the advertising and packaging for its Yogurt 14 Bites, Walmart allegedly “seeks to capitalize on consumer preference for clean label products.” 15 Id. ¶ 33. Among various clean-label claims, a claim that an item lacks any preservatives has been 16 found to be among the most important claims to consumers who are motivated to seek out “clean” 17 products. Id. ¶ 34. Therefore, Plaintiff alleges that Walmart’s allegedly deceptive labeling and 18 marketing of the Yogurt Bites product “has misled and deceived consumers,” such that Plaintiff 19 and the members of the proposed class have been injured. Id. ¶¶ 36–37. 20 Plaintiff filed suit in the United States District Court for the Northern District of California 21 on September 26, 2024. Dkt. No. 1. She brings this putative class action on behalf of herself and 22 a class of “[a]ll persons in California who purchased the Class Products in California during the 23 Class Period,” which is defined as “the maximum time allowable as determined by the statute of 24 limitation periods accompanying each cause of action.” Id. ¶ 58. Plaintiff asserts seven causes of 25 action: (1) a claim for breach of express warranty based on violations of California Commercial 26 Code § 2313; (2) a claim for unlawful business practices California’s Unfair Competition Law 27 (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq.; (3) a claim for unfair business practices under 1 under the UCL, Cal. Bus. & Prof. Code § 17200 et seq.; (5) a claim for false advertising under 2 California Business and Professions Code § 17500 et seq.; (6) a claim for violation of the 3 Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1750 et seq.; and (7) a claim for 4 restitution based on quasi-contract/unjust enrichment. 5 II. LEGAL STANDARD 6 A. Rule 12(b)(1) 7 “[L]ack of Article III standing requires dismissal for lack of subject matter jurisdiction 8 under Federal Rule of Civil Procedure 12(b)(1).” Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th 9 Cir. 2011) (citation omitted). Since “[t]he party invoking federal jurisdiction[] bears the burden of 10 establishing” the elements of Article III standing, a plaintiff must be able to demonstrate (1) an 11 “injury in fact” that is (2) fairly traceable to the challenged conduct of the defendant, and (3) likely 12 to be “redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330 , 338 13 (2016), as revised (May 24, 2016) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555 , 560–61 14 (1992)); Iten v. Los Angeles, 81 F.4th 979, 984 (9th Cir. 2023). “[E]ach element must be 15 supported . . . with the manner and degree of evidence required at the successive stages of the 16 litigation.” Lujan, 504 U.S. at 561 . 17 B. Rule 12(b)(6) 18 Under Federal Rule of Civil Procedure 12(b)(6), a court must dismiss a complaint if it fails 19 to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion, the plaintiff 20 must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. 21 Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the plaintiff pleads facts 22 that allow the court to “draw the reasonable inference that the defendant is liable for the 23 misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). There must 24 be “more than a sheer possibility that a defendant has acted unlawfully.” Id. While courts 25 generally do not require “heightened fact pleading of specifics,” a plaintiff must allege facts 26 sufficient to “raise a right to relief above the speculative level.” See Twombly, 550 U.S. at 555 , 27 570. 1 factual allegations and construes them in the light most favorable to the plaintiff. Reese v. BP 2 Expl. (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). However, the Court need not “accept as 3 true allegations that contradict matters properly subject to judicial notice” or “allegations that are 4 merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead 5 Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation marks and citations 6 omitted). On a motion to dismiss, the Court’s review is limited to the face of the complaint and 7 matters judicially noticeable. See MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 8 1986); N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). 9 C. Motion to Strike 10 Under Federal Rule of Civil Procedure 12(f), “[t]he court may strike from a pleading an 11 insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” 12 “‘Immaterial’ matter is that which has no essential or important relationship to the claim for relief 13 or the defenses being pleaded. ‘Impertinent’ matter consists of statements that do not pertain, and 14 are not necessary, to the issues in question.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th 15 Cir. 1993), rev’d on other grounds, 510 U.S. 517 (1994) (internal citation omitted) (quoting 5 16 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1382, at 706–07 17 (1990)). “[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money 18 that must arise from litigating spurious issues by dispensing with those issues prior to trial.” 19 Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). “With a motion to strike, 20 just as with a motion to dismiss, the court should view the pleading in the light most favorable to 21 the nonmoving party.” Platte Anchor Bolt, Inc. v. IHI, Inc., 352 F. Supp. 2d 1048, 1057 (N.D. 22 Cal. 2004 ) (citation omitted). 23 D. Leave to Amend 24 In deciding whether to grant leave to amend, the Court must consider the factors set forth 25 by the Supreme Court in Foman v. Davis, 371 U.S. 178 (1962), and discussed at length by the 26 Ninth Circuit in Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048 (9th Cir. 2003). A district 27 court ordinarily must grant leave to amend unless one or more of the Foman factors is present: 1 amendment, (4) undue prejudice to the opposing party, or (5) futility of amendment. Eminence 2 Capital, 316 F.3d at 1051–52. “[I]t is the consideration of prejudice to the opposing party that 3 carries the greatest weight.” Id. at 1052 . However, a strong showing with respect to one of the 4 other factors may warrant denial of leave to amend. Id. 5 III. DISCUSSION 6 A. Rule 12(b)(1) 7 Walmart first argues that Plaintiff’s Complaint should be dismissed for lack of Article III 8 standing, because she has not suffered an injury-in-fact. Mot. at 4–9. Specifically, “[a]ll of 9 Plaintiff’s claims turn on her assumption that because the products contain ascorbic acid (Vitamin 10 C), the ingredient must necessarily be functioning as a preservative.” Id. at 5. However, Walmart 11 argues that Plaintiff “alleges no facts establishing that this is the case,” and states that the ascorbic 12 acid in the Yogurt Bites is actually functioning as a vitamin additive rather than a preservative. Id. 13 Moreover, Walmart argues that Plaintiff has not adequately pled economic injury via price 14 premium damages. Id. Walmart additionally argues that Plaintiff “lacks standing to pursue 15 injunctive relief because she has not alleged that she will purchase the Yogurt Bites in the future 16 or could be deceived in the future,” id. at 6, and that “Plaintiff also lacks standing to pursue claims 17 for products she did not purchase,” including other flavors of Yogurt Bites, id. at 8. 18 In opposition, Plaintiff argues that her allegations based on Walmart’s “No Preservatives” 19 claim, including her allegations of paying a price premium, are sufficient to confer Article III 20 standing in this case, where Plaintiff alleges an underlying deceptive practice. Opp. at 13–14. In 21 addition, Plaintiff argues that she has standing to pursue injunctive relief because (1) she “has 22 clearly alleged that she ‘would be willing to purchase’ Defendant’s product in the future ‘should 23 she be able to rely with any confidence on Defendant’s marketing as truthful and not deceptive,’” 24 id. at 15 (citing Compl. ¶ 56), and (2) in this Circuit, “a previously deceived consumer may have 25 standing to seek an injunction against false advertising or labeling, even though the consumer now 26 knows or suspects that the advertising was false at the time of the original purchase,” id. (quoting 27 Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 969 (9th Cir. 2018)). Finally, Plaintiff argues 1 allegations regarding the preservative-related claims “are shared among all Class Products, which 2 differ only in fruit flavor.” Id. at 16–17. 3 The Court has no trouble rejecting Walmart’s argument that Plaintiff has not suffered an 4 injury-in-fact because the ascorbic acid in the Yogurt Bites is actually functioning as a vitamin 5 rather than a preservative. This is a factual dispute going to the heart of Plaintiff’s claims, the 6 resolution of which will presumably require expert testimony. Plaintiff’s Complaint, however, 7 quite clearly alleges that the ascorbic acid is functioning as a preservative in the Yogurt Bites. 8 E.g., Compl. ¶¶ 3, 5, 21–31 (alleging that ascorbic acid falls within the definition of a chemical 9 preservative under the FDCA and that the FDA has identified ascorbic acid as such previously, 10 and also alleging that the amount of ascorbic acid in the Yogurt Bites is sufficient to function as a 11 preservative). She also alleges that she “would not have purchased these Products” in the absence 12 of the allegedly misleading labeling, demonstrating economic injury based on the purchase price. 13 Id. ¶ 52. Further, Plaintiff has specifically alleged that she “would be willing to purchase products 14 labeled as ‘No Preservatives’ again in the future, including Defendant’s Product, should she be 15 able to rely with any confidence on Defendant’s marketing as truthful,” Compl. ¶ 56, which is 16 sufficient to give her standing to seek injunctive relief. See Davidson, 889 F.3d at 969 (“[A] 17 previously deceived consumer may have standing to seek an injunction against false advertising or 18 labeling, even though the consumer now knows or suspects that the advertising was false at the 19 time of the original purchase, because the consumer may suffer an ‘actual and imminent, not 20 conjectural or hypothetical’ threat of future harm.”). Unlike the plaintiffs in several of 21 Defendant’s cases, Plaintiff here maintains an interest in purchasing the products at issue. 22 That said, there are a couple of deficiencies with Plaintiff’s pleading. First, Defendant is 23 correct that Plaintiff has not put forth facts supporting her conclusory allegation that she paid a 24 price premium for the Yogurt Bites. See id. ¶ 49 (stating only that “[i]n reliance on the claims 25 made by Defendant regarding the qualities of their Products, Plaintiff paid a price premium”). 26 While “a plaintiff can satisfy the injury in fact requirement by showing that she paid more for a 27 product than she otherwise would have due to a defendant’s false representations about the 1 burden by making only conclusory statements unsupported by allegations of fact. Plaintiff’s own 2 Ninth Circuit memorandum opinion, for example, found price premium allegations sufficient 3 where the plaintiffs alleged that the product they purchased “ha[d] a higher price than other 4 comparable products,” in addition to alleging that the plaintiffs purchased that product based on 5 the alleged misrepresentations. Horti v. Nestle Healthcare Nutrition, Inc., No. 22-16832, 2023 6 WL 8613601 , at *1 (9th Cir. Dec. 13, 2023). 7 Second, Defendant is also correct that Plaintiff has failed to adequately allege “substantial 8 similarity” between the product that she purchased—the Banana Yogurt Bites, which is the only 9 product specifically identified in the Complaint, see Compl. ¶ 2—and other products advertised 10 and sold by Defendant. Plaintiff has not addressed whether any of Defendant’s other products are 11 “of the same kind, comprised of largely the same ingredients, and whether each of the challenged 12 products bears the same alleged mislabeling” as the product that she actually purchased. Figy v. 13 Frito-Lay N. Am., Inc., 67 F. Supp. 3d 1075, 1083 (N.D. Cal. 2014) (citation omitted). In her 14 opposition brief, Plaintiff states that certain “commonalities are shared among all Class Products, 15 which differ only in fruit flavor,” Opp. at 17, but asserting such allegations in briefing materials is 16 insufficient. Plaintiff must include the relevant allegations in the pleading itself. Cf. Miller v. 17 Ghirardelli Chocolate Co., 912 F. Supp. 2d 861 , 864–71 (N.D. Cal. 2012) (discussing the 18 allegations in the complaint as to various Ghirardelli products and concluding that substantial 19 similarity had not been established). As such, her pleading falls short of giving her standing to 20 pursue claims about products that she did not actually purchase. 21 Because it is not clear to the Court that amendment of the price premium or substantial 22 similarity issues would be futile, the Court will give leave to amend. See Eminence Capital, 316 23 F.3d at 1051–52. 24 B. Rule 12(b)(6) 25 Next, Walmart makes a number of arguments challenging the sufficiency of Plaintiff’s 26 pleading. The first is a blanket argument that all of Plaintiff’s claims fail because they are all 27 “based on the same alleged fraudulent action/misrepresentation by Walmart.” Mot. at 9. Under 1 mistake, including the who, what, when, where, and how of the misconduct charged.” Colgate v. 2 JUUL Labs, Inc., 402 F. Supp. 3d 728 , 744 (N.D. Cal. 2019) (internal quotations omitted) 3 (quoting Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003)). Yet Walmart 4 argues that Plaintiff has failed to meet this heightened pleading standard because her only 5 statements about Walmart’s actions or knowledge are “conclusory,” and her allegations “regarding 6 the function of Vitamin C as a preservative” in the relevant products are “thin.” Mot. at 11. In 7 addition, Walmart says that Plaintiff has failed to allege sufficient facts to show that a reasonable 8 consumer would be deceived—a requirement for Plaintiff’s second through sixth causes of 9 action—since Walmart’s packaging and marketing discloses that the products contain ascorbic 10 acid. Id. at 15–17. 11 Plaintiff responds that she has met the 9(b) pleading requirement by alleging the following 12 details in her Complaint: Who: Defendant Walmart, Inc. [Compl.] ¶ 20; [13] What: A label claim wherein Defendant claims its Product contains “No Preservatives” 14 despite the fact they contain ascorbic acid and dl-alpha tocopheryl acetate[,] both of which are recognized by law as chemical preservatives with known preservative functions. [Id.] [15] ¶¶ 23–24; 16 When: Regular purchases over the past two years (May 2022 to May 2024) from a Walmart Supercenter located at 777 Story Road, San Jose, CA 95122. [Id.] ¶ 12; [17] Where: Defendant’s Product labels. [Id.] ¶ 2; 18 How: The statements were misleading because despite claiming that the Products contained “No Preservatives,” each Product contained two ingredients that are chemical [19] preservatives and serve as preservatives in Defendant’s Product. See, e.g., [id.] ¶¶ 3, 21– 20 31. 21 Opp. at 3–4. Moreover, Plaintiff argues that the pleadings meet the “reasonable consumer” 22 standard because, first, Plaintiff “explicitly alleges” that two different substances in the product 23 “function as preservatives,” id. at 6 (citing Compl. ¶¶ 26–31), and second, the unambiguous 24 statement “No Preservatives” does not impose upon the reasonable consumer an obligation to 25 investigate the ingredient label to see whether the ingredient list would contradict the statement, 26 id. at 9. And Plaintiff states that even if a reasonable consumer was expected to investigate the 27 ingredient list, “reasonable consumers . . . do not have specialized knowledge necessary to identify 1 Plaintiff is correct that she has met the requirements of Federal Rule of Civil Procedure 2 9(b) as to her allegations of a misrepresentation by Defendant regarding the ascorbic acid in the 3 Yogurt Bites. As recited above, Plaintiff has identified “‘the who, what, when, where, and how’ 4 of the misconduct charged” by identifying the allegedly misleading advertising statement, how it 5 was misleading, and when and where Plaintiff was exposed to the advertisement. See Kearns v. 6 Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (quoting Vess, 317 F.3d at 1106 ). 7 Importantly, though, Plaintiff only includes allegations going to the “how” of the misleading 8 statement with respect to ascorbic acid: for that ingredient, the Complaint includes specific 9 information about the concentration of ascorbic acid that is necessary for functionality as a 10 preservative, as well as the concentration present in the Yogurt Bites. Compl. ¶¶ 21–31. The 11 same is not true with regard to dl-alpha tocopheryl acetate. The latter ingredient is mentioned only 12 in passing. See, e.g., Compl. at n.2 (stating broadly that the Yogurt Bites contain dl-alpha 13 tocopheryl acetate, which “has preservative functions by maintaining the stability and extending 14 the shelf life of products by protecting against oxidation”). Plaintiff fails to include detailed 15 allegations regarding the concentration at which dl-alpha tocopheryl acetate functions as a 16 preservative, nor does she allege whether such a concentration is present in Defendant’s Yogurt 17 Bites products. For that reason, the Court concludes that Plaintiff has not adequately pled claims 18 of misrepresentation related to dl-alpha tocopheryl acetate. However, in light of the fact that none 19 of the Foman factors appear to bar amendment, the Court will give Plaintiff leave to amend her 20 claims related to dl-alpha tocopheryl acetate. See Eminence Capital, 316 F.3d at 1051–52. 21 Regarding ascorbic acid, the Court is unpersuaded by Defendant’s argument that a 22 reasonable consumer would not be misled by Defendant’s advertising. First, “whether a business 23 practice is deceptive will usually be a question of fact not appropriate for decision” at the motion 24 to dismiss stage. See Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008). Second, 25 the reasonable consumer is not expected to “look beyond” an unambiguous misleading statement 26 on the front of a package in order to “discover the truth from the ingredient list in small print on 27 the side of the box.” Id. at 939 . As the Ninth Circuit has noted, the point of an ingredient list is 1 those misinterpretations . . . . Instead, reasonable consumers expect that the ingredient list 2 contains more detailed information about the product that confirms other representations on the 3 packaging.” Id. at 939–40 (emphasis added). On the other hand, “when . . . a front label is 4 ambiguous, the ambiguity can be resolved by reference to the back label.” McGinity v. Procter & 5 Gamble Co., 69 F.4th 1093, 1099 (9th Cir. 2023). 6 In this case, the bolded statement “No Preservatives” on Defendant’s packaging of the 7 Yogurt Bites is unambiguous. A reasonable consumer would not be expected to review the 8 ingredient list to confirm whether the ingredients inside the product contradict that plain 9 statement. And even if they were expected to do so, the Court does not think a reasonable 10 consumer would be expected to know that ascorbic acid is a preservative—particularly when that 11 name is accompanied by a parenthetical suggesting that the ingredient is a vitamin. See Reid v. 12 Johnson & Johnson, 780 F.3d 952, 959 (9th Cir. 2015) (“Regardless, it is far from clear that 13 typical consumers understand that a product containing partially hydrogenated vegetable oil 14 necessarily has trans fat, so even if an ingredient list has a curative effect in some cases, it might 15 not here.”); Olmos v. T. Marzetti Co., No. LA CV21-03159, 2022 WL 18358950 , at *13 (C.D. 16 Cal. Oct. 11, 2022) (“At the pleading stage, that citric acid is disclosed in the ingredients does not 17 preclude the claim that the ‘No Preservatives’ label is deceptive.”).1 18 Having dealt with Walmart’s blanket challenges to the sufficiency of Plaintiff’s allegations 19 about Walmart’s purported misrepresentation, the Court now addresses Walmart’s claim-specific 20 challenges. 21 1. Count 1: Breach of Express Warranty 22 Walmart argues that the only statement on which the breach of express warranty claim 23 purports to be based is the “No Preservatives” claim, but that no breach of such a warranty could 24 have occurred on account of Defendant’s preliminary arguments that “Plaintiff has not pled 25 sufficient facts to demonstrate that this statement . . . is a misrepresentation.” Mot. at 17. In 26 opposition, Plaintiff argues that it “is axiomatic that product labels and advertisements can create [27] 1 express warranties” and that “Defendant does not . . . attack the substance” of the express warranty 2 claim. Opp. at 18. Plaintiff points out that this claim goes hand-in-hand with her statutory claims. [3] Id. 4 Plaintiff has adequately pled her claim of Breach of Express Warranty. As previously 5 discussed, Defendant’s argument that Plaintiff has failed to allege that Defendant’s “No 6 Preservatives” claim is a misrepresentation assumes Defendant’s desired conclusion to this 7 litigation: that the ascorbic acid in the Yogurt Bites functions only as a vitamin. In fact, Plaintiff 8 included specific allegations that ascorbic acid functions as a preservative in Defendant’s Yogurt 9 Bites products including, as one key example, that Plaintiff “conducted an independent chemical 10 analysis of Walmart’s product to determine the amount of ascorbic acid” that resulted in a finding 11 of a 0.163% ascorbic acid content. Compl. ¶¶ 30–31. Because “USDA guidelines suggest using 3 12 [grams] of ascorbic acid in 1 gallon . . . of water to preserve color and freshness,” an amount that 13 “corresponds to a usage level of 0.079%,” Plaintiff’s analysis suggests that the Yogurt Bites 14 contain twice as much ascorbic acid as is necessary to achieve preservative effects. Id. ¶ 31 . 15 Defendant’s motion to dismiss is DENIED as to Plaintiff’s Breach of Express Warranty claim. 16 2. Count 7: Unjust Enrichment 17 Walmart argues that Plaintiff’s restitution claim must be dismissed if she has failed to 18 sufficiently plead an actionable misrepresentation or omission. Mot. at 17. In addition, Walmart 19 argues that “Plaintiff cannot state a claim for quasi-contract, because she asserts a separate claim 20 for breach of an express warranty covering the same subject matter.” Id. at 18 . Plaintiff responds 21 that there is “‘a mix of authority’ on whether there is a stand-alone cause of action for unjust 22 enrichment,” and that “this Circuit has construed the common law to allow an unjust enrichment 23 cause of action through quasi-contract.” Opp. at 18. In addition, Plaintiff argues that “[a]t this 24 early stage of the pleadings, Plaintiff is entitled to allege alternative theories of liability.” Id. at 25 19. 26 The Court declines to dismiss Plaintiff’s claim for unjust enrichment. The Ninth Circuit 27 has expressed its belief that a cause of action for unjust enrichment “states a claim for relief as an 1 v. Stratos, 828 F.3d 1023, 1038 (9th Cir. 2016). In addition, Plaintiff is correct that “Rule 8(d) 2 expressly permits [plaintiffs] to allege alternative and/or inconsistent theories of liability at the 3 pleadings stage.” Qayumi v. Talent Net, Inc., No. 21-cv-00323, 2023 WL 218961 , at *2 (N.D. 4 Cal. Jan. 17, 2023); see Fed. R. Civ. P. 8(d)(2), (3). Finally, for the same reasons as discussed 5 with regard to Defendant’s arguments about standing and breach of express warranty, the Court 6 finds that Plaintiff has adequately alleged a misrepresentation. This allegation forms the factual 7 basis for Plaintiff’s unjust enrichment claim, which is asserted as an alternative to Plaintiff’s 8 breach of express warranty claim. Accordingly, Defendant’s motion to dismiss Plaintiff’s claim 9 for Unjust Enrichment is DENIED. 10 3. Counts 2, 3, 4, and 5: UCL and FAL Claims for Equitable Relief 11 Walmart argues that Plaintiff’s equitable claims under the UCL and FAL must be 12 dismissed because they are equitable in nature and she has “alleged other claims that present an 13 adequate remedy at law.” Mot. at 18 (citing Sonner v. Premier Nutrition Corp., 971 F.3d 834 , 844 14 (9th Cir. 2020)). In opposition, Plaintiff argues that she may “pursue claims in the alternative” 15 and so the Court should not dismiss the equitable claims at this stage. Opp. at 20. In any event, 16 Plaintiff argues that she has “sufficiently pled an inadequate remedy at law” because she is 17 seeking injunctive relief. Id. at 21. 18 Sonner v. Premier Nutrition Corp., 971 F.3d 834 (9th Cir. 2020), held that “federal courts 19 must apply equitable principles derived from federal common law to claims for equitable 20 restitution under California’s Unfair Competition Law [] and Consumers Legal Remedies Act.” [21] Id. at 837 . Based on those principles, a plaintiff must “establish that she lacks an adequate remedy 22 at law before securing equitable restitution for past harm.” Id. at 844 ; see Ibarra v. Pharmagenics 23 LLC, 660 F. Supp. 3d 914 , 922 (C.D. Cal. 2023) (“[T]he rule that Sonner announced applies to 24 other types of equitable relief, such as disgorgement, and claims for equitable relief under other 25 statutes, like the FAL.”). In this case, the amount that Plaintiff seeks in equitable restitution is the 26 same as is requested in economic damages for past harm by way of her (and the putative Class’s) 27 purchases of Defendant’s products. See Compl. at 27, Prayer for Relief (“B. Restitution in such 1 She does not show that such a legal remedy would somehow be “inadequate or incomplete” in 2 making her whole, see Sonner, 971 F.3d at 844 , and accordingly fails to establish that she lacks an 3 adequate remedy at law so as to entitle her to restitution or disgorgement. Her arguments 4 regarding the longer statute of limitations applicable to UCL and FAL claims is unavailing. A 5 legal remedy is not inadequate merely because Plaintiff “fail[ed] to timely comply with the 6 requirements to obtain [her] remedy at law.” See Guzman v. Polaris Indus. Inc., 49 F.4th 1308 , 7 1311 & n.3 (9th Cir. 2022). However, Plaintiff is correct that “monetary damages for past harm 8 are an inadequate remedy for the future harm that an injunction under California consumer 9 protection law is aimed at.” Zeiger v. WellPet LLC, 526 F. Supp. 3d 652 , 687 (N.D. Cal. 2021). 10 Accordingly, although Plaintiff is not entitled to seek restitution or disgorgement based on her 11 UCL and FAL claims, the Court declines to dismiss those equitable claims in their entirety and 12 will allow them to proceed seeking injunctive relief. 13 4. Count 6: Consumers Legal Remedies Act 14 Walmart argues that Plaintiff’s “claim for money damages under the CLRA should be 15 dismissed for failure to comply with the pre-suit requirements of the CLRA,” namely, for failing 16 to provide a written notice of the alleged violations from Plaintiff Castillo at least 30 days prior to 17 filing suit. Mot. at 19–20. Although a notice letter was sent under the name of a different class 18 member, Walmart states that this mode of notification is procedurally inadequate. Id. at 20 . 19 Plaintiff responds that notice of “identical allegations via an earlier letter on behalf of a different 20 class member” is sufficient, Opp. at 23, and that even if the notice was deficient, this is a curable 21 error that should not result in dismissal with prejudice, id. at 23–24. 22 Courts in this Circuit have found that a plaintiff satisfied the pre-suit notice requirement 23 where “another class member had provided the requisite pre-suit[] notice.” Hollins v. Walmart 24 Inc., No. 19-cv-05526, 2021 WL 2792311 , at *2 (C.D. Cal. June 9, 2021) (citing Sanchez v. Wal25 Mart Stores, Inc., No. 06-cv-2573, 2007 WL 1345706 , at *3 (E.D. Cal. May 8, 2007)). Moreover, 26 a failure to abide by the pre-suit notice requirements is likely curable. See Bitton v. Gencor 27 Nutrientes, Inc., 654 F. App’x 358, 362 (9th Cir. 2016) (“‘A dismissal with prejudice of a 1 notice requirement.” (quoting Morgan v. AT&T Wireless Servs., Inc., 177 Cal. App. 4th 1235 , 2 1261 (2009))). In any event, Defendant’s counsel represented at the hearing on this motion that 3 Plaintiff had already cured the deficient CLRA notice. Based on that representation, the Court 4 DENIES Defendant’s motion to dismiss Plaintiff’s Consumers Legal Remedies Act claim. 5 C. Rule 12(f) 6 Walmart seeks to strike Plaintiff’s allegation that she brings suit on behalf of a nationwide 7 class, since the class definition mentions only a California class. Mot. at 20–21. In opposition, 8 Plaintiff argues that her “allegations in Paragraph 1 of the Complaint should be sufficient to put 9 Defendant on notice that Plaintiff is alleging a nationwide class in addition to a California class.” 10 Opp. at 19. Plaintiff therefore requests that the Court use its “broad discretion to modify class 11 definitions” to clarify that Plaintiff does bring suit on behalf of a nationwide class or, in the 12 alternative, that the Court give leave to amend the class definition to allege a nationwide class. Id. 13 The Court GRANTS Defendant’s motion to strike Plaintiff’s allegations related to a 14 purported nationwide class. Under Rule 12(f), a district court “may order stricken from any 15 pleading . . . any redundant, immaterial, impertinent, or scandalous matter.” Fantasy, Inc. v. 16 Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on other grounds, 510 U.S. 517 (1994). 17 “‘Immaterial’ matter is that which has no essential or important relationship to the claim for relief 18 or the defenses being pleaded.” Id. (quoting 5 Charles A. Wright & Arthur R. Miller, Federal 19 Practice and Procedure § 1382, at 706–07 (1990)). In the Class Action Allegations portion of the 20 Complaint, Plaintiff expressly defines the class as “All persons in California who purchased the 21 Class Products in California during the Class Period.” Compl. ¶ 58. Given this definition, 22 Plaintiff’s stray mention of a nationwide class in the first paragraph of the Complaint is immaterial 23 and is hereby STRICKEN. The Court notes that this basis for striking the nationwide class 24 allegations is unlike the basis in various of Plaintiff’s cases—in those cases, the defendant(s) had 25 moved to strike on the ground that choice-of-law issues would preclude a nationwide class. See, 26 e.g., Brazil v. Dole Food Co., No. 12-cv-01831, 2013 WL 5312418 , at *11 (N.D. Cal. Sept. 23, 27 2013). Here, the allegations in the first paragraph of the Complaint are stricken because they are 1 because it is not clear to the Court that amendment to allege a nationwide class would be futile, the 2 || Court will give leave to amend. See Eminence Capital, 316 F.3d at 1051-52 . 3 || IV. ORDER 4 For the foregoing reasons, IT IS HEREBY ORDERED that Defendant Walmart, Inc.’s 5 Motion to Dismiss and Motion to Strike (Dkt. No. 21) is GRANTED IN PART AND DENIED IN 6 || PART WITH LEAVE TO AMEND. 7 1. Plaintiffs allegation related to a nationwide class is STRICKEN. 8 2. Defendant’s Rule 12(b)(1) motion to dismiss is GRANTED WITH LEAVE TO AMEND 9 as to Plaintiffs standing to sue for price premium damages and her standing to sue over 10 unpurchased products, as well as her claims related to dl-alpha tocopheryl acetate. The 11 motion to dismiss is otherwise DENIED. 12 3. Defendant’s 12(b)(6) motion to dismiss is DENIED as to Plaintiff's Breach of Express 5 13 Warranty, Unjust Enrichment, and Consumers Legal Remedies Act claims. 14 4. Defendant’s 12(b)(6) motion to dismiss is GRANTED IN PART AND DENIED IN PART 3 15 as to Plaintiff's Unfair Competition Law and False Advertising Law claims. Plaintiff's a 16 claims for equitable relief in the form of restitution or disgorgement are DISMISSED, but 3 17 Plaintiff may proceed on the claims for injunctive relief. 18 5. Plaintiff may file an amended complaint on or before July 31, 2025. [19] 20 IT IS SO ORDERED. [21] 22 Dated: July 1, 2025 23 foi iflecdan H LABSON FREEMAN 24 United States District Judge