Graham v. Cent. Garden & Pet Co.

• Decision Date: 30 March 2023
• Docket Number: 22-cv-06507-JSC
• Parties: HILLORI GRAHAM, Plaintiff, v. CENTRAL GARDEN & PET COMPANY, Defendant.
• Court: U.S. District Court — Northern District of California

1

HILLORI GRAHAM, Plaintiff, v. CENTRAL GARDEN & PET COMPANY, Defendant.

No. 22-cv-06507-JSC

United States District Court, N.D. California

March 30, 2023

ORDER RE: MOTION TO DISMISS

Re: Dkt. No. 18

JACQUELINE SCOTT CORLEY, United States District Judge

Plaintiff sues Defendant for false and misleading statements on its cat-calming products. (Dkt. No. 1.)^[1] Before the Court is Defendant's motion to dismiss. (Dkt. No. 18.) After carefully considering the briefing, and with the benefit of oral argument on March 30, 2023, the Court GRANTS the motion in part and DENIES it in part.

COMPLAINT ALLEGATIONS

Plaintiff is a California resident who purchased Defendant's Comfort Zone-branded Cat Calming Kit, Multi-Cat Calming Kit and Calming Pheromone Collar. She read and relied on the product labels, which state they are “trusted” and “proven” to “reduce multi-cat conflict and destructive behavior,” to provide “anxiety and stress relief,” and to “reduce scratching” and “urine marking.” (Dkt. No 1 ¶ 14.) She believed the products “would reduce tension and conflict as advertised, as well as provid[e] calming and therapeutic benefits to reduce scratching and urine marking.” (Id. ¶ 15.) Defendant markets a fourth product, Spray & Scratch Control, in a similar way.

Defendant's statements are false and misleading because its products do not effectively treat stress or related behaviors in cats. The products' active ingredient is a synthetic version of the cat facial pheromone that signals safe territory, but “synthetic animal pheromones have not been proven to provide any calming or other behavior altering effects on cats.” (Id. ¶ 6.) The Riemer study found “[t]he effectiveness of pheromones in dogs and cats on fear behavior could not be demonstrated in the majority [of] studies”; the Chadwin study found “[n]o significant difference between cats exposed to the pheromone diffuser and those exposed to [a] placebo diffuser”; and the Conti study found exposure to synthetic pheromones “does not reduce physiologic and behavioral changes caused by stress.” (Id. ¶¶ 31-33.) To the extent synthetic pheromones provide any benefit, it is only in conjunction with other stress-reducing treatments. (Id. ¶ 35.) Plaintiff would not have purchased the three products had she known Defendant's representations were false and misleading. (Id. ¶ 16.)

On behalf of a putative class of all people in the United States who bought Defendant's four products, Plaintiff brings claims for: (1) violation of California's Consumer Legal Remedies Act (“CLRA”), (2) violation of California's False Advertising Law (“FAL”), (3) violation of all three prongs (unlawful, unfair, and fraudulent) of California's Unfair Competition Law (“UCL”), (4) breach of express warranty, (5) breach of implied warranty of fitness for a particular purpose, and (6) unjust enrichment. Defendant moves to dismiss all claims.

DISCUSSION

In addition to Federal Rule of Civil Procedure 8(a) Plaintiff's claims are subject to Rule 9(b)'s heightened pleading requirement for claims “grounded in” fraud. Kearns v. Ford Motor Co., 567 F.3d 1120, 1126 (9th Cir. 2009) (explaining that if a claim relies on an alleged “unified course of fraudulent conduct,” Rule 9(b) applies even if fraud is not a necessary element of the claim); see, e.g., Loh v. Future Motion, Inc., No. 5:21-CV-06088-EJD, 2022 WL 2668380, at *5 (N.D. Cal. July 11, 2022) (“Plaintiffs' theory that Defendant harmed its customers by fraudulently representing the safety and craftsmanship of the Onewheel underlies each claim.”). Thus, for each claim Plaintiff must allege “the who, what, when, where, and how of the misconduct charged.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (cleaned up).

I. FALSE OR MISLEADING UNDER CLRA, FAL, & UCL

Plaintiff asserts Defendant misrepresented the “sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities” and “particular standard, quality, or grade” of the products, in violation of the CLRA. Cal. Civ. Code §§ 1770(a)(5), (7). She also asserts the marketing statements are “untrue or misleading” under the FAL and “unfair” and “fraudulent” under the UCL. Cal. Bus. & Prof. Code §§ 17500, 17200. All of these claims are governed by the “reasonable consumer” test. Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016) (“Plaintiff must show that members of the public are likely to be deceived. This requires . . . a probability that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.” (cleaned up)); see Hadley v. Kellogg Sales Co., 273 F.Supp.3d 1052, 1063 (N.D. Cal. 2017) (analyzing CLRA, FAL, and UCL claims together and collecting cases). Plaintiff must “adequately plead that reasonable consumers are likely to be deceived” by Defendant's statements and, pursuant to Rule 9(b), “why the [statements are] false.” Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 964 n.2 (9th Cir. 2018).

Plaintiff plausibly alleges the statements are false or misleading and that reasonable consumers could be misled. Defendant claims the products “reduce multi-cat conflict and destructive behavior,” provide “anxiety and stress relief,” and “reduce scratching” and “urine marking.” (Dkt. No. 1 ¶ 14.) But, according to Plaintiff, three studies found synthetic pheromones had no effect on cat behavior. (Id. ¶¶ 31-33.) As alleged, and together with Plaintiff's other factual allegations, the studies help “nudge” an inference of falsity “across the line from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see Locklin v. StriVectin Operating Co., Inc., No. 21-CV-07967-VC, 2022 WL 867248, at *4 (N.D. Cal. Mar. 23, 2022) (“[Defendant] argues that [Plaintiff] fails to ‘show' that the four chemicals are actually dangerous to the reefs, and that the studies cited by the plaintiff do not ‘establish' what they allege about the chemicals. But at the motion to dismiss stage, complaints need not ‘show' or ‘establish' anything.”). Plaintiff also meets Rule 9(b)'s requirement to plead “why the [statements are] false,” Davidson, 889 F.3d 964 n.2: because synthetic pheromones actually have no calming effect on cats.

Defendant asks the Court to look beyond the complaint to the studies' limitations, including that the studies did not examine Defendant's specific products. The Court may take judicial notice of the studies because they are incorporated by reference into the complaint, see Tunac v. United States, 897 F.3d 1197, 1207 n.8 (9th Cir. 2018), but will not analyze their merits. See Tubbs v. AdvoCare Int'l, L.P., 785 Fed.Appx. 396, 397 (9th Cir. 2019) (stating in false labeling case: “We assume, without deciding, that the district court erred by evaluating the persuasiveness the report's final conclusions. See Sonner v. Schwabe N. Am., Inc., 911 F.3d 989, 992-93 (9th Cir. 2018) (per curiam) (holding that the persuasiveness of an admissible report by an expert is for the fact-finder to decide).”). Defendant's interpretation of the studies requires the Court to draw inferences in its favor, whereas the Court must draw all reasonable inferences in Plaintiff's favor at the motion to dismiss stage. See Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005); Lytle v. Nutramax Lab'ys, Inc., No. EDCV19835JGBSPX, 2019 WL 8060070, at *6 n.4 (C.D. Cal. Sept. 26, 2019) (declining to consider Defendants' arguments “disput[ing] Plaintiffs' characterization of the studies and cit[ing] passages that are not in the [complaint], including passages where the authors warn against general application of their findings”).

The studies support a reasonable inference that synthetic pheromones do not calm cats. They do not “directly contradict[]” Plaintiff's allegations. Locklin, 2022 WL 867248, at *4 (“The cited studies reference at least some of the chemicals identified in the complaint and purport to document their potentially harmful effects on coral reefs. Discovery may expose that those studies contain vital flaws, but it is enough for now that the studies do not plainly refute the allegations in the complaint.”); cf. Aloudi v. Intramedic Rsch. Grp., LLC, 729 Fed.Appx. 514, 516 (9th Cir. 2017) (unpublished) (affirming dismissal where complaint referred to studies, but “none . . . involv[ing] scientific testing of the actual JavaSLIM product or a product with the same active ingredients as JavaSLIM, in a dose similar to that in JavaSLIM”). As such, the studies support a plausible inference that Defendant's statements are false or misleading.

Nor is the Court persuaded by Defendant's characterizing Plaintiff's theory as lack of substantiation. See Kwan v. SanMedica Int'l, 854 F.3d 1088, 1096-97 (9th Cir. 2017) (“[E]ach of these is simply an allegation that defendant's marketing claims lack scientific substantiation.

Since California law does not provide a private cause of action for claims that advertising lacks substantiation, the failure to allege specific facts pointing to actual falsehood constitutes a fatal flaw.”). Plaintiff does allege synthetic pheromones “have not been proven” to calm cats, (Dkt. No. 1 ¶ 6), but her overall theory is there is affirmative scientific evidence that synthetic pheromones have no effect on cats' stress-related behavior, (see id. ¶¶ 31-33). Drawing all reasonable inferences in Plaintiff's favor, she plausibly alleges false statements, not unsubstantiated statements. See Perez v. Bath & Body Works, LLC, No 21-CV-05606-BLF, 2022 WL 2756670, at *4 (N.D. Cal. July 14, 2022) (“[Plaintiff] has provided allegations of affirmative evidence that hyaluronic acid does not retain 1,000 times its weight in water. [She] has alleged that published data in scientific literature...