1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARK TRAMMELL, individually and on Case No.: 24-cv-00862-AJB-AHG behalf of those similarly situated, 12 ORDER GRANTING IN PART AND Plaintiff,

DENYING IN PART DEFENDANT’S

13 v. MOTION TO DISMISS 14 ALBERTSONS COMPANIES, INC., a (Doc. No. 16) 15 Delaware corporation, Defendant. 16

17 Presently pending before the Court is Defendant Albertsons Companies Inc.’s 18 Motion to Dismiss Plaintiff Mark Trammell’s First Amended Complaint (“FAC”) pursuant 19 to Federal Rule of Civil Procedure 8, 9(b), 12(b)(1), and 12(b)(6). (Doc. No. 16.) Plaintiff 20 filed an opposition to the motion to dismiss, (Doc. No. 18), to which Albertsons replied, 21 (Doc. No. 19). Pursuant to Civil Local Rule 7.1.d.1, the Court finds the instant matter 22 suitable for determination on the papers and without oral argument. Accordingly, the Court 23 VACATES the motion hearing set for March 6, 2025. For the reasons stated herein, the 24 Court GRANTS IN PART AND DENIES IN PART the Motion to Dismiss Plaintiff’s 25

FAC.

26 /// 27 /// 28 1 I. BACKGROUND 2 Plaintiff is a resident and citizen of California. (FAC, Doc. No. 13, ¶ 1.) Defendant 3 Albertsons Companies formulates, manufactures, and sells under its in-house generic 4 brand, Signature Selects, the Signature Select Fruit & Grain cereal bars, Blueberry and 5 Strawberry flavors (together, the “Products”). (Id. ¶ 20.) On or about June 10, 2023, 6 Plaintiff viewed and purchased the Products from a Vons Market—a subsidiary of 7 Albertsons—in Carlsbad, California. (Id. ¶ 18.) Plaintiff asserts he “is a student who 8 attempts to eat ‘clean’” and “prefers to consume only products that contain all-natural 9 flavorings.” (Id. ¶ 19.) 10 The packaging for the Products states it is “Naturally Flavored.” (Id. ¶ 21.) 11 Albertsons discloses the presence of malic acid in the ingredient list on the back of the 12 Products’ packaging.1 (Doc. No. 16-1 at 4.) 13 Plaintiff alleges these representations on Albertsons’ packaging are false and 14 misleading because the Products are “flavored using an artificial flavoring, DL malic acid, 15 that is derived from petrochemicals.” (FAC ¶ 22.) Plaintiff claims he reviewed the 16 Products’ labels, including the statement that the Products are “Naturally Flavored,” prior 17 to purchasing the Products. (Id. ¶ 51.) Plaintiff also contends he reasonably relied on the 18 labels’ statements and would not have purchased the Products or would have only been 19 willing to pay a substantially reduced price for the Products had he known about 20 Albertsons’ alleged misrepresentation. (Id. ¶ 52.) 21 On May 15, 2024, Plaintiff filed a class action complaint against Albertsons, alleging 22 claims for: (1) violations of the California Consumers Legal Remedies Act (“CLRA”), 23 California Civil Code § 1750, et seq.; (2) unjust enrichment; and (3) breach of express 24 warranty. (Doc. No. 1.) On November 25, 2024, the Court granted in part and denied in 25 part Albertsons’ motion to dismiss Trammel’s Complaint. (Doc. No. 12.) By the present 26

27 1 The Court considers the full packaging of the Products as it is incorporated by reference. Ritchie, 342 28 1 motion, Albertsons moves pursuant to Federal Rules of Civil Procedure 8, 12(b)(1), and 2 12(b)(6) to dismiss Plaintiff’s unjust enrichment claim (Count II) and request for injunctive 3 relief in the FAC. (Doc. No. 16.) 4 II. LEGAL STANDARDS 5 A. Federal Rule of Civil Procedure 12(b)(6) 6 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal 7 sufficiency of the pleadings and allows a court to dismiss a complaint if the plaintiff has 8 failed to state a claim upon which relief can be granted. See Conservation Force v. Salazar, 9 646 F.3d 1240, 1241 (9th Cir. 2011) (citing Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 10 2001)). Federal Rule of Civil Procedure 8(a)(2) requires that a pleading that states a claim 11 for relief contain “a short and plain statement of the claim showing that the pleader is 12 entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). The function of this pleading requirement is to 13 “‘give the defendant fair notice of what the . . . claim is and the grounds upon which it 14 rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 15 355 U.S. 41, 47 (1957)). 16 A complaint will survive a Rule 12(b)(6) motion to dismiss if it contains “enough 17 facts to state a claim to relief that is plausible on its face.” Id. at 570. “A claim has facial 18 plausibility when the plaintiff pleads factual content that allows the court to draw the 19 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 20 Iqbal, 556 U.S. 662, 678 (2009). “A pleading that offers ‘labels and conclusions’ or ‘a 21 formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting 22 Twombly, 550 U.S. at 555). “Threadbare recitals of the elements of a cause of action, 23 supported by mere conclusory statements, do not suffice.” Id. “While legal conclusions can 24 provide the framework of a complaint, they must be supported by factual allegations.” Id. 25 at 679. Accordingly, dismissal for failure to state a claim is proper where the claim “lacks 26 a cognizable legal theory or sufficient facts to support a cognizable legal theory.” 27 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008); see Los 28 Angeles Lakers, Inc. v. Fed. Ins. Co., 869 F.3d 795, 800 (9th Cir. 2017). 1 In reviewing a Rule 12(b)(6) motion to dismiss, a district court must “‘accept the 2 factual allegations of the complaint as true and construe them in the light most favorable 3 to the plaintiff.’” Los Angeles Lakers, 869 F.3d at 800 (quoting AE ex rel. Hernandez v. 4 Cnty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012)). But a court need not accept “legal 5 conclusions” as true. Iqbal, 556 U.S. at 678. “Further, it is improper for a court to assume 6 the claimant “can prove facts that it has not alleged or that the defendants have violated the 7 . . . laws in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. 8 Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). In addition, a court may 9 consider documents incorporated into the complaint by reference and items that are proper 10 subjects of judicial notice. See Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 11 2010). If the court dismisses a complaint for failure to state a claim, it must then determine 12 whether to grant leave to amend. See Doe v. United States, 58 F.3d 494, 497 (9th Cir. 13 1995). “A district court should grant leave to amend . . . unless it determines that the 14 pleading could not possibly be cured by the allegation of other facts.” Id. 15 B. Article III Standing 16 Federal Rule of Civil Procedure 12(b)(1) provides for dismissal for lack of subject 17 matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Under Rule 12(b)(1), a federal court is to first 18 determine its jurisdiction over the dispute. See Bates v. United Parcel Serv., Inc., 511 F.3d 19 974, 985 (9th Cir. 2007); Ellis v. J.P. Morgan Chase & Co., 950 F. Supp. 2d 1062, 1071 20 (N.D. Cal. 2013). A court sustains a facial attack on subject matter jurisdiction if “the 21 allegations contained in a complaint [or on matters which the court can take judicial notice 22 of] are insufficient on their face to invoke federal jurisdiction.” Safe Air for Everyone v. 23 Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). 24 Article III limits the jurisdiction of federal courts to “cases” and “controversies,” 25 which is delineated by the doctrine of standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 26 560 (1992). To establish standing, a plaintiff must first have suffered an “injury in fact” 27 which is “concrete and particularized” as well as “actual or imminent, not conjectural or 28 hypothetical[.]” Id. (citations omitted). Second, the injury must be “fairly traceable to the 1 challenged action of the defendant[.]” Id. (citations and alterations omitted). Finally, it 2 must be “likely” that the “injury will be redressed by a favorable decision.” Id. (citations 3 omitted). “The plaintiff, as the party invoking federal jurisdiction, bears the burden of 4 establishing these elements.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). Moreover, 5 “[a] plaintiff must demonstrate constitutional standing separately for each form of relief 6 requested.” Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 967 (9th Cir. 2018) (citing 7 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC) Inc., 528 U.S. 167, 185 (2000)). 8 The Ninth Circuit has held that “a previously deceived consumer may have standing 9 to seek an injunction against false advertising or labeling, even though the consumer now 10 knows or suspects that the advertising was false at the time of the original purchase, 11 because the consumer may suffer an ‘actual and imminent, not conjectural or hypothetical’ 12 threat of future harm.” Davidson, 889 F.3d at 969. “A customer who is deceived by false 13 advertising may have standing to seek injunctive relief forbidding the defendant from 14 engaging in the same false advertising again[,]” if the consumer can “establish the threat 15 of actual and imminent injury.” Jackson v. General Mills, Inc., No. 18-cv-02634-LAB- 16 BGS, 2020 WL 5106652, at *5 (S.D. Cal. Aug. 28, 2020) (emphasis removed) (discussing 17 Davidson, 889 F.3d at 967). The “threatened injury must be certainly impending to 18 constitute injury in fact, and . . . allegations of possible future injury are not sufficient.” 19 Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (internal citations omitted). While 20 “[a] plaintiff who is deceived by false advertising may be injured by her inability to rely 21 on advertising in the future[,] where a plaintiff learns information during litigation that 22 enables her to evaluate product claims and make appropriate purchasing decisions going 23 forward, an injunction would serve no meaningful purpose as to that plaintiff.” Jackson, 24 2020 WL 5106652, at *5; Rahman v. Mott’s LLP, No. 13-cv-03482-SI, 2018 WL 4585024, 25 at *3 (N.D. Cal. Sept. 25, 2018); Fernandez v. Atkins Nutritionals, Inc., No. 17-cv-01628- 26 GPC-WVG, 2018 WL 280028, at *15 (S.D. Cal. Jan. 3, 2018)). 27 /// 28 /// 1 III. DISCUSSION 2 Albertsons moves to dismiss Plaintiff’s unjust enrichment claim and request for 3 injunctive relief pursuant to Federal Rules of Civil Procedure 8, 12(b)(1), and 12(b)(6). 4 (Doc. No. 16-1 at 3.) Specifically, Albertsons argues: (1) California does not recognize a 5 separate cause of action for unjust enrichment; (2) even if California recognized a separate 6 cause of action for unjust enrichment, Plaintiff has not shown that his legal remedies are 7 inadequate; and (3) Plaintiff lacks standing to pursue a claim for injunctive relief. (Id. at 8 6–7) 9 A. Unjust Enrichment 10 Albertsons first asserts Plaintiff’s unjust enrichment claim fails as a matter of law 11 because California does not recognize a separate cause of action for unjust enrichment. 12 (Doc. No. 16-1 at 6 (citing DeHavilland v. FX Networks, LLC, 21 Cal. App. 5th 845, 870 13 (2018)).) Albertsons further asserts that even if California recognizes a separate cause of 14 action for unjust enrichment, the claim still fails because Plaintiff has not shown that his 15 legal remedies are inadequate. (Id.) 16 In California, “there is not a standalone cause of action for ‘unjust enrichment,’” but 17 “[w]hen a plaintiff alleges unjust enrichment, a court may ‘construe the cause of action as 18 a quasi-contract claim seeking restitution.’” Astiana v. Hain Celestial Grp., Inc., 783 F.3d 19 753, 762 (9th Cir. 2015) (quoting Rutherford Holdings, LLC v. Plaza Del Rey, 223 Cal. 20 App. 4th 221, 231 (2014)). “[T]he theory underlying” an unjust enrichment claim is “that 21 a defendant has been unjustly conferred a benefit ‘through mistake, fraud, coercion, or 22 request.’” Id. (quoting 55 Cal. Jur. 3d Restitution § 2). “The return of that benefit is the 23 remedy ‘typically sought in a quasi-contract cause of action.’” Id. (quoting 55 Cal. Jur. 3d 24 Restitution § 2). 25 Plaintiff seeks actual damages under the Consumer Legal Remedies Act, Cal. Civ. 26 Code § 1750 et seq. (“CLRA”), and his claim for breach of express warranty. He does not 27 allege that damages are inadequate. Instead, Plaintiff alleges he “pleads this cause of action 28 in the alternative in the event that Plaintiff has an inadequate remedy at law.” (FAC ¶ 81.) 1 However, under Sonner v. Premier Nutrition Corp., 971 F.3d 834 (9th Cir. 2020), a 2 plaintiff at a minimum must state they have no adequate remedy at law, even at the motion 3 to dismiss stage. Id. at 844; Helems v. Game Time Supplements, LLC, No. 3:22-cv-01122- 4 L-AHG, 2023 WL 5986130, at *5–6 (S.D. Cal. Sept. 14, 2023). Because Plaintiff fails to 5 assert he has no adequate remedy at law, the Court GRANTS Albertsons’ motion to 6 dismiss Plaintiffs’ unjust enrichment claim with leave to amend. 7 B. Injunctive Relief 8 Albertsons next asserts Plaintiff lacks standing to seek injunctive relief because he 9 “has made abundantly clear that he is aware of the ingredients in the Product. He is thus at 10 no risk of future harm and therefore lacks standing to seek injunctive relief.” (Doc. No. 16- 11 1 at 7.) Plaintiff responds that Albertsons ignores “directly on-point Ninth Circuit case law” 12 and that he has sufficiently alleged future harm based on his desire to purchase the Products 13 in the future and cannot rely on the Product’s labels. (Doc. No. 18 at 3–5.) He also claims 14 that he has alleged more than an “informational injury” that is rectified by knowing now 15 that the Products contain artificial flavorings, but that because of its fraudulent practices, 16 Albertsons was able to charge a premium price for its products. (Id. at 4.) By way of Count 17 1 under the CLRA, Plaintiff seeks an order enjoining Albertsons from engaging in alleged 18 deceptive labeling practices. (FAC ¶ 77; Prayer for Relief ¶ d.) 19 Prospective injunctive relief requires a plaintiff to show a threat of future injury that 20 is “actual and imminent, not conjectural or hypothetical.” Summers v. Earth Island Inst., 21 555 U.S. 488, 493 (2009). To establish standing for injunctive relief, the previously 22 deceived consumer must sufficiently allege “an imminent or actual threat of future harm 23 caused by [the] allegedly false advertising,” such as a desire to purchase the product again 24 in the future. Davidson, 889 F.3d at 970. “In some cases, the threat of future harm may be 25 the consumer’s plausible allegations that she will be unable to rely on the product’s 26 advertising or labeling in the future, and so will not purchase the product although she 27 would like to.” Id. at 969–70. “In other cases, the threat of future harm may be the 28 consumer’s plausible allegations that she might purchase the product in the future, despite 1 the fact it was once marred by false advertising or labeling, as she may reasonably, but 2 incorrectly, assume the product was improved.” Id. at 970. 3 Here, Plaintiff sufficiently alleges he has a desire to purchase the Products again. 4 (FAC ¶ 71 (“Defendant [sic] would like to purchase the Products and other products in the 5 ‘Signature Select’ line of food products in the future, but cannot currently do so because 6 he cannot rely on the Products’ labelling, given the deceptions regarding flavoring found 7 there.”).) However, unlike in Davidson, in which the plaintiff faced a future injury because 8 she still could not rely on the defendant’s claims about its products’ “flushability” without 9 first purchasing and using the flushable wipes, 889 F.3d at 971–72, Plaintiff admits he now 10 has knowledge that enables him to make an appropriate choice with respect to the Products. 11 (See FAC ¶¶ 22, 27–28, 42–43); see also Kenney v. Fruit of the Earth, Inc., No. 23-55583, 12 2024 WL 4578981, at *1 (9th Cir. Oct. 25, 2024) (unpublished) (affirming the district 13 court’s grant of summary judgment on the plaintiff’s equitable claims in favor of the 14 defendants, holding the plaintiff lacked standing to pursue injunctive relief because, unlike 15 Davidson, “the record in this case makes plain that [the plaintiff] need not purchase the 16 defendants’ sunscreen anew to determine whether it contains non-zinc active ingredients. 17 [The plaintiff] is aware that the sunscreen’s back label states that it contains octocrylene, a 18 chemical active ingredient”); Renn v. Otay Lakes Brewery, LLC, No.: 23CV1139- 19 GPC(BLM), 2024 WL 331616 (S.D. Cal. Jan. 29, 2024) (granting motion to dismiss the 20 plaintiff’s request for equitable relief where the plaintiff was allegedly deceived by 21 “healthy” representation on packaging for product containing alcohol, finding that “even 22 if the health and wellness representations were removed, he will not likely purchase the 23 Products since he was looking for a ‘healthy’ kombucha drink”); Fernandez, 2018 WL 24 280028, at *15 (plaintiff allegedly deceived by “net carbs” representation on product 25 packaging lacked standing to seek injunctive relief; noting plaintiff “now kn[ew] how 26 [defendant] goes about calculating its net carbs claims, and she [would] not be misled next 27 time”). 28 /// l Plaintiff further asserts he “has alleged more than simply an ‘information injury’” 2 || but also that “because of its fraudulent practices, Albertsons was able to charge a premium 3 || price for its products.” (Doc. No. 18 at 4.) However, as discussed above, Plaintiff admits 4 ||he has knowledge of the Product’s ingredients. Thus, there is no longer any risk that 5 || Plaintiff will be misled the next time he looks at the Product’s label. Plaintiffs allegation 6 an injunction would drive down the price of Albertsons’ Products is based on pure 7 || conjecture and is insufficient to state a cognizable claim for injunctive relief. See Trammell 8 ||v. KLN Enter., Inc., No.: 3:23-cv-01884-H-JLB, 2024 WL 4194794, at *8—9 (S.D. Cal. 9 || Sept. 12, 2024), appeal filed, No. 24-6097. 10 Accordingly, Plaintiff lacks standing to pursue his claim for injunctive relief and that 11 || claim is DISMISSED. Because the deficiencies identified cannot be cured by amendment 12 || of the FAC, the Court dismisses Plaintiffs request for injunctive relief without leave to 13 ||amend. See Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) (“A district 14 ||court may deny a plaintiff leave to amend if it determines that ‘allegation of other facts 15 || consistent with the challenged pleading could not possibly cure the deficiency.’” (citation 16 || omitted)). 17 || IV. CONCLUSION 18 For the foregoing reasons, Albertsons’ motion to dismiss is GRANTED as follows: 19 1. Albertsons’ Motion to Dismiss is GRANTED as to Plaintiff's unjust enrichment 20 claim with leave to amend; 21 2. Albertsons’ Motion to Dismiss is GRANTED as to Plaintiffs request for injunctive 22 relief without leave to amend. 23 || Should Plaintiff choose to do so, he may file a Second Amended Complaint by March 13, 24 2025. Albertsons must file a responsive pleading no later than March 27, 2025. 25 IT IS SO ORDERED. 26 || Dated: February 24, 2025

28 United States District Judge