1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JERRY KIRKPATRICK, No. 2:24-cv-01927-DAD-CKD 12 Plaintiff, 13 v. ORDER GRANTING DEFENDANT’S

MOTION TO DISMISS

14 HOME DEPOT U.S.A., INC., (Doc. Nos. 11, 17) 15 Defendant.

16 17 This matter is before the court on defendant Home Depot U.S.A., Inc.’s motion to dismiss 18 plaintiff’s complaint. (Doc. Nos. 11, 17.)1 On January 21, 2025, defendant’s motion was taken 19 under submission on the papers pursuant to Local Rule 230(g). (Doc. No. 22.) For the reasons 20 explained below, defendant’s motion to dismiss will be granted, with leave to amend. 21 BACKGROUND 22 On July 15, 2024, plaintiff Jerry Kirkpatrick filed the complaint initiating this false 23 advertising class action in this court. (Doc. No. 1.) In his complaint, plaintiff alleges the 24 following. 25 ///// 26

27 1 Defendant initially noticed its pending motion for hearing before the assigned magistrate judge (Doc. No. 11), before it was directed by minute order (Doc. No. 16) to properly re-notice its 28 motion before the undersigned. 1 Defendant Home Depot U.S.A., Inc. sells Christmas lights under its private-label brand, 2 Home Accents Holiday Decor. (Doc. No. 1 at ¶ 1.) Defendant sells and distributes Home 3 Accents LED Christmas lights (the “Product”) online, through its own retail stores, and through 4 third-party retailers. (Id. at ¶ 19.) 5 Although Christmas lights come in an array of shapes and sizes, there are two standard 6 bulb sizes: C7 and C9. (Id. at ¶ 2.) The C9 designation signifies specifications defined by the 7 American National Standards Institute (“ANSI”) and other widely accepted norms of the lighting 8 industry. (Id. at ¶ 16.) Under ANSI C78.79, the “C” means “conical,” and the number that 9 follows refers to the diameter or width of the bulb in 1/8ths of an inch. (Id.) Thus, a C9 light 10 should have a conical bulb with a 9/8ths inch diameter. (Id.) Industry lighting standards define 11 the dimensions of C7 and C9 bulbs, and the consistency simplifies the consumer’s ability to 12 choose the appropriate bulbs and replacement bulbs for their decorations. (Id. at ¶ 2.) Standard 13 C9 bulbs also have standardized bases, which provide the physical connection between the bulb 14 and the socket. (Id. at ¶ 17.) These bases also have a specific thread pattern to securely attach to 15 compatible light sockets. (Id. at ¶ 18.) Any C7 bulb will fit a C7 socket, and any C9 bulb will fit 16 any socket designed for C9 bulbs. (Id.) 17 Defendant’s Product is conspicuously labeled and advertised as containing standard C9 18 bulbs. (Id. at ¶ 3.) For in-store purchases, the Product’s packaging prominently identifies the 19 bulb shape and size and displays “C9” on the front of the packaging. (Id. at ¶ 24.) For online 20 customers, the Product page conspicuously identifies the size and shape of the light bulb as C9, 21 both in the Product name and its specifications. (Id. at ¶ 23.) 22 However, the Product lights are smaller, narrower, have a different base, and do not 23 otherwise meet the dimensions and characteristics of a C9 bulb. (Id.) The Product bulbs have a 24 maximum width of 1.04 inches, which is narrower than the standard 9/8ths of an inch, or 1.125 25 inches. (Id. at ¶ 20.) The Product bulbs are also not as bright as other C9 bulbs and do not have a 26 standard Edison base. (Id.) The Product lights have a different thread pattern, so they are not 27 compatible with other C9 LED sets or replacement bulbs. (Id.) 28 ///// 1 On November 15, 2023, plaintiff Jerry Kirkpatrick, a citizen of Orangevale, California, 2 purchased for personal or household use two sets of the Product at a Home Depot on 6001 3 Madison Avenue in Carmichael, California: (1) 24 count red/warm white C9 LED Lights, for 4 $16.98; and (2) 50 count warm white C9 LED Lights, for $27.98. (Id. at ¶¶ 5, 26.) Plaintiff also 5 paid a sales tax of $3.48 on these purchases, bringing his total amount paid for the purchase to 6 $48.44. (Id. at ¶ 26.) Before buying the Products, plaintiff reviewed the packaging. (Id. at ¶ 27.) 7 Plaintiff saw and relied on misrepresentations that the lights met the C9 standard and that they 8 were “super bright.” (Id. at ¶ 26.) The representations on the package were false and misleading 9 because the lights that plaintiff purchased do not have the dimensions and characteristics of a 10 standard C9 bulb. (Id. at ¶ 28.) If the Product lights had been accurately labeled, plaintiff and 11 other class members would not have purchased the Product and/or would not have paid as much 12 for it. (Id. at ¶ 29.) Plaintiff also suffered loss of the use and usefulness of the Product. (Id.) 13 Defendant knows, or at least it should know, that the Product bulbs are mislabeled. (Id. at 14 ¶ 22.) Yet defendant has sought to capitalize on the consumer demand for standardized 15 Christmas lights by uniformly and falsely labeling its cheaper and smaller LED bulbs as C9. (Id.) 16 Defendant’s false labeling allowed it to sell the Product at a higher price and realize sales it would 17 not have otherwise made if the Product were not falsely labeled as having C9 bulbs. (Id. at ¶ 25.) 18 On information and belief, defendant intended for consumers to rely on its false representations. 19 (Id. at ¶ 31.) 20 Plaintiff seeks to represent a class of all persons in California who have purchased the 21 Product. (Id. at ¶ 32.) On behalf of himself and the class, plaintiff brings three claims under 22 California law: (1) violation of California’s Consumers Legal Remedies Act (“CLRA”), 23 California Civil Code §§ 1750, et seq.; (2) violation of California’s False Advertising Law 24 (“FAL”), California Business & Professions Code §§ 17500, et seq.; and (3) violation of 25 California’s Unfair Competition Law (“UCL”), California Business and Professions Code 26 §§ 17200, et seq. (Id. at ¶¶ 57–90.) Plaintiff seeks damages as to his first claim and injunctive 27 relief, restitution, disgorgement, and attorneys’ fees as to his second and third claims. (Id. at 28 ¶¶ 71, 77–79, 89–90.) Plaintiff also seeks civil penalties as to his second claim. (Id. at ¶ 79.) 1 On October 24, 2024, defendant filed the pending motion to dismiss plaintiff’s complaint. 2 (Doc. No. 11.) Pursuant to the parties’ stipulation, (Doc. No. 18), plaintiff filed his opposition on 3 December 20, 2024, and on January 17, 2025 defendant filed its reply thereto. (Doc. Nos. 20, 4 21.) 5 LEGAL STANDARD 6 A. Motion to Dismiss Pursuant to Rule 12(b)(6) 7 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal 8 sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 9 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of 10 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 11 F.2d 696, 699 (9th Cir. 1988). A plaintiff is required to allege “enough facts to state a claim to 12 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A 13 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 14 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 15 Iqbal, 556 U.S. 662, 678 (2009). 16 In determining whether a complaint states a claim on which relief may be granted, the 17 court accepts as true the allegations in the complaint and construes the allegations in the light 18 most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. 19 United States, 915 F.2d 1242, 1245 (9th Cir. 1989), abrogated on other grounds by DaVinci 20 Aircraft, Inc. v. United States, 926 F.3d 1117 (9th Cir. 2019). However, the court need not 21 assume the truth of legal conclusions cast in the form of factual allegations. U.S. ex rel. Chunie v. 22 Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed 23 factual allegations, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me 24 accusation.” Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere “labels and 25 conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. 26 at 555; see also Iqbal, 556 U.S. at 676 (“Threadbare recitals of the elements of a cause of action, 27 supported by mere conclusory statements, do not suffice.”). Moreover, it is inappropriate to 28 assume that the plaintiff “can prove facts that it has not alleged or that the defendants have 1 violated the . . . laws in ways that have not been alleged.” Associated Gen. Contractors of Cal., 2 Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). 3 B. Pleading Fraud Pursuant to Rule 9(b) 4 A complaint alleging fraud must also satisfy heightened pleading requirements. Fed. R. 5 Civ. P. 9(b) (“In alleging fraud or mistake, a party must state with particularity the circumstances 6 constituting fraud or mistake.”). “Fraud can be averred by specifically alleging fraud, or by 7 alleging facts that necessarily constitute fraud (even if the word ‘fraud’ is not used).” Kearns v. 8 Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (citing Vess v. Ciba-Geigy Corp. USA, 317 9 F.3d 1097, 1107 (9th Cir. 2003)). “When an entire complaint, or an entire claim within a 10 complaint, is grounded in fraud and its allegations fail to satisfy the heightened pleading 11 requirements of Rule 9(b), a district court may dismiss the complaint or claim.” Vess, 317 F.3d at 12 1107. 13 “Rule 9(b) demands that the circumstances constituting the alleged fraud be specific 14 enough to give defendants notice of the particular misconduct . . . so that they can defend against 15 the charge and not just deny that they have done anything wrong.” Kearns, 567 F.3d at 1124 16 (citations and internal quotation marks omitted). To satisfy the particularity standard of Rule 17 9(b), the plaintiff must allege the “‘who, what, when, where, and how’ of the misconduct 18 charged.” Id. (citing Vess, 317 F.3d at 1106). 19 DISCUSSION 20 Before turning to defendant’s motion, the court first considers its unopposed request for 21 judicial notice. (Doc. No. 12.) 22 A. Request for Judicial Notice 23 In connection with its motion to dismiss, defendant requests that the court take judicial 24 notice of two documents: (1) Exhibit A, ANSI’s “About” webpage, 25 https://webstore.ansi.org/info/about; and (2) Exhibit B, ANSI Standard C78.79: Nomenclature 26 for Envelope Shapes Intended for Use with Electric Lamps. (Doc. No. 12.) 27 “In general, websites and their contents may be judicially noticed.” Threshold Enters. 28 Ltd. v. Pressed Juicery, Inc., 445 F. Supp. 3d 139, 146 (N.D. Cal. 2020). Accordingly, the court 1 will take judicial notice of the webpage submitted as Exhibit A, but “solely for [its] existence and 2 content, and not for the truth of any statements” within. 2Die4Kourt v. Hillair Cap. Mgmt., LLC, 3 No. 16-cv-01304-JVS-DFM, 2016 WL 4487895, at *1 n.1 (C.D. Cal. Aug. 23, 2016), aff’d, 692 4 F. App’x 366 (9th Cir. 2017); see also Pac. Overlander, LLC v. Kauai Overlander, No. 18-cv- 5 02142-KAW, 2018 WL 3821070, at *2 (N.D. Cal. Aug. 10, 2018) (“The Court therefore takes 6 judicial notice of the Defendant’s website, the print-outs of the Instagram account, and the print- 7 outs of the Google reviews, but not for the truth of the contents therein.”); United States v. Kane, 8 No. 2:13-cr-00250-JAD-VCF, 2013 WL 5797619, at *9 (D. Nev. Oct. 28, 2013) (“When a court 9 takes judicial notice of publications like websites and newspaper articles, the court merely notices 10 what was in the public realm at the time, not whether the contents of those articles were in fact 11 true.”). The court will also take judicial notice of Exhibit B, finding that the ANSI standards 12 regarding bulbs in electric lamps, used to aid manufacturers, consumers, and the general public, 13 are the proper subject of judicial notice. See Hendrickson v. Wal-Mart Assocs., Inc., No. 23-cv- 14 00110-AJB-MSB, 2023 WL 6373072, at *2 (S.D. Cal. June 27, 2023) (“As such, because the 15 remainder of Plaintiff’s documents derive from undisputed legislative, administrative, and 16 regulatory sources, the Court grants judicial notice for Exhibits (6) and (7).”); see also Arroyo v. 17 AJU Hotel Silicon Valley LLC, et al., No. 20-cv-08218-JSW, 2021 WL 2350813, at *2 (N.D. Cal. 18 Mar. 16, 2021) (taking judicial notice of several exhibits, noting that the court may also consider 19 the exhibits under the doctrine of incorporation by reference because they are documents whose 20 contents are alleged in the complaint and on which the complaint necessarily relies) (citation 21 omitted). 22 B. Defendant’s Arguments 23 In its pending motion to dismiss, defendant argues that plaintiff’s UCL, FAL, and CLRA 24 claims must all be dismissed because plaintiff has not alleged an actionable misrepresentation 25 upon which to base these claims. (Doc. No. 11 at 9–10.) In the alternative, defendant argues that 26 plaintiff has not adequately pleaded defendant’s knowledge of the misrepresentation or any 27 resulting damage to plaintiff. (Id. at 10–11.) Finally, defendant argues that to the extent plaintiff 28 ///// 1 seeks injunctive relief in his complaint, he lacks standing to do so and that such relief is 2 unavailable. (Id. at 11.) The court will address each argument in turn below. 3 1. Actionable Misrepresentation 4 Defendant first argues that plaintiff “has not alleged an actionable misrepresentation for 5 any of his three claims.” (Doc. No. 11 at 9.) In opposition, plaintiff argues that defendant’s 6 representation on the packaging of the Christmas lights “that the lights met C9 specifications was 7 false and misleading.” (Doc. No. 20 at 9.) 8 “California’s UCL, FAL, and CLRA require basic fairness in advertising and permit a 9 civil remedy against those who deceive consumers.” Whiteside v. Kimberly Clark Corp., 108 10 F.4th 771, 777 (9th Cir. 2024). “[T]he California Supreme Court recognized in Kasky v. Nike, 11 Inc., 27 Cal. 4th 939, 950 (2002) that California’s consumer protection laws prohibit not only 12 advertising which is false, but also that which is either actually misleading or which has a 13 capacity, likelihood, or tendency to deceive or confuse the public.” Roper v. Big Heart Pet 14 Brands, Inc., 510 F. Supp. 3d 903, 917 (E.D. Cal. 2020); see also Whiteside, 108 F.4th at 777 15 (“Those laws prohibit not only false advertising, but also advertising that is either actually 16 misleading or which has a capacity, likelihood or tendency to deceive or confuse the public.”) 17 (internal citations and quotation marks omitted). 18 To plausibly allege a UCL, FAL or CLRA claim based upon a misrepresentation, plaintiff 19 must allege that he relied on a misrepresentation and suffered injury as a result. Barton v. Procter 20 & Gamble Co., 766 F. Supp. 3d 1045, 1064 (S.D. Cal. 2025) (citing Mirkin v. Wasserman, 5 Cal. 21 4th 1082, 1092 (1993)). “Claims brought under the CLRA, UCL, or the FAL are governed by the 22 ‘reasonable consumer test.’” Roper, 510 F. Supp. 3d at 916 (citing Williams v. Gerber Products 23 Co., 552 F.3d 934, 938 (9th Cir. 2008)). “[T]he reasonable consumer standard requires a 24 probability that a significant portion of the general consuming public or of targeted consumers, 25 acting reasonably in the circumstances, could be misled.” Whiteside, 108 F.4th at 777–78 26 (internal quotation marks and citation omitted). “California courts . . . have recognized that 27 whether a business practice is deceptive will usually be a question of fact not appropriate for 28 decision [at the pleadings stage].” Williams, 552 F.3d at 938–39 (citing Linear Tech. Corp. v. 1 Applied Materials, Inc., 152 Cal. App. 4th 115, 134–35 (2007)). “[I]n federal court, dismissals of 2 UCL, FAL, and CLRA claims at the pleadings stage have ‘occasionally been upheld,’ but such 3 cases are ‘rare.’” Whiteside, 108 F.4th at 778 (quoting Williams, 552 F.3d at 939). “Dismissal is 4 appropriate when ‘the advertisement itself [makes] it impossible for the plaintiff to prove that a 5 reasonable consumer [is] likely to be deceived.’” Id. 6 As noted, defendant argues that plaintiff has not alleged facts plausibly showing that 7 defendant misrepresented anything about the Product. (Doc. No. 11 at 14.) In opposition, 8 plaintiff argues that defendant has labeled the Product as containing C9 bulbs, but the Product’s 9 bulbs do not meet C9 standards. (Doc. No. 20 at 11–13.) According to plaintiff, he has alleged 10 that the Product’s labeling is a misrepresentation because the Product lights vary from standard 11 C9 lights in terms of their size, their brightness, and their base. (Doc. No. 20 at 11–13.) In reply, 12 defendant argues that plaintiff’s allegations regarding variations between the Product bulbs and 13 C9 bulbs are de minimis, vague, conclusory, or ignore relevant information. (Doc. No. 21 at 5– 14 9.) For example, as to the size of the Product bulbs, defendant argues that the difference between 15 the 1.04-inch wide Product bulb and a 1.125-inch wide standard C9 bulb is “de minimis,” and 16 “could not possibly mislead a significant portion of the intended audience of reasonable 17 consumers” because plaintiff has not alleged that a reasonable consumer would know that a C9 18 bulb measures 1.125 inches. (Doc. No. 11 at 3–4, 15–16.) Defendant also argues that because 19 there is a cutout in the Product’s packaging which permits purchasers to see the Product bulbs 20 before purchasing, “there was no surprise about how wide the caps were.” (Id. at 17.) In 21 opposition, plaintiff argues that there is a “significant difference in the size,” and that the Class 22 lights are closer to a C8 size which “is not a standard designation and commands little market 23 recognition.” (Doc. No. 20 at 13.) Plaintiff also argues that “a reasonable consumer would not 24 necessarily deduce that the lights failed to conform to C9 specifications” from just “a small 25 window revealing only part of the product.” (Id.) 26 As stated above, whether a label is deceptive “will usually be a question of fact” absent 27 rare circumstances. Williams, 552 F.3d at 938. On the other hand, “where a court can conclude 28 as a matter of law that members of the public are not likely to be deceived by the product 1 packaging, dismissal is appropriate.” Werbel ex rel. v. Pepsico, Inc., No. 09-cv-04456-SBA, 2 2010 WL 2673860, at *3 (N.D. Cal. July 2, 2010). As an example of such circumstances, in 3 Freeman v. Time, Inc., 68 F.3d 285 (9th Cir. 1995), the Ninth Circuit upheld the dismissal of a 4 plaintiff’s challenge to a mailer that he argued “falsely represents that the reader has won” a 5 sweepstakes, finding that “when read reasonably and in context,” the promotion, which stated 6 multiple times that plaintiff would only win the prize if he had the winning sweepstakes number, 7 “ma[de] no such false representation.” Id. at 290. Accordingly, district courts have on occasion 8 granted dismissal of UCL, FAL, and CLRA claims brought in relation to product labelling where 9 it is “obvious from the product packaging that no reasonable consumer would believe” the alleged 10 misrepresentation. Werbel ex rel., 2010 WL 2673860, at *3 (finding the plaintiff’s allegation that 11 “members of the public are likely to be deceived into believing that Cap’n Crunch derives 12 nutrition from actual fruit” to be “nonsense” where the “packaging clearly states that product is a 13 ‘SWEETENED CORN & OAT CEREAL’”); see also Garza v. Spectrum Brands Pet LLC, 760 F. 14 Supp. 3d 1039, 1045, 1051 (E.D. Cal. 2024) (dismissing the plaintiff’s consumer deception 15 claims, finding that “in reviewing the entirety of the package” which stated that “the dog chews 16 are made with real chicken, pork, & duck” and contained an “ingredients list show[ing] that the 17 seventh, eight, and ninth ingredients out of thirty-seven ingredients are chicken, pork, and duck 18 respectively,” a “a reasonable consumer could not be misled to believing that the first ingredient 19 of the dog chews is meat”) (appeal pending). 20 Here, however, there are no such similar circumstances that would make it impossible for 21 a reasonable consumer to be misled. As stated above, plaintiff has alleged all of the following. 22 Christmas lights come in two standardized bulb sizes: C7 and C9. (Doc. No. 1 at ¶ 14.) The 23 Product is conspicuously labeled and advertised as containing C9 bulbs. (Doc. No. 1 at ¶ 20.) 24 Plaintiff has included photos in his complaint demonstrating that the Product contains the phrase 25 “C9” printed on the retail packaging, and the online Product page for the Christmas lights 26 includes the phrase “C9” as part of the Product name. (Doc. No. 1 at ¶¶ 23–24.) The Product 27 lights deviate from standardized C9 lights in a number of ways, one being that the Product lights 28 have a maximum width of 1.04 inches, when the standard C9 bulb width is 1.125 inches. (Id. at 1 ¶ 20.) The Product lights “are not compatible with other C9 LED sets or replacement bulbs.” 2 (Id.) Before making his purchase, plaintiff “saw and relied on misrepresentations that the lights 3 met the C9 standard,” and that “[t]he main features he cared about were the size and shape of the 4 bulb, compatibility with his existing light strings, and brightness.” (Id. at ¶¶ 26–27.) Plaintiff 5 “suffered loss of the use and usefulness of the product,” and if the Product had been accurately 6 labeled, he “and other Class members would not have purchased the product and/or would not 7 have paid as much for them.” (Id. at ¶ 29.) 8 It is not at all clear that a reasonable consumer, from reading the entirety of the packaging 9 of the Product and observing the bulbs through the packaging’s window, would understand that 10 despite the Product being advertised as containing C9 bulbs, the bulbs do not conform to C9 11 standards. Whether a 0.085-inch difference in width is de minimis or serves to meaningfully 12 mislead consumers, whether a window in the packaging would reveal to a reasonable consumer 13 that the bulbs are not as wide as standard C9s, and whether a reasonable consumer knows the 14 width of a standard C9, all are questions of fact, and so do not demonstrate that plaintiff has failed 15 to allege an actionable misrepresentation. See Watson v. Crumbl LLC, 736 F. Supp. 3d 827, 844 16 (E.D. Cal. 2024) (“[A]t this early stage, the Court cannot say with certainty that a reasonable 17 consumer would not be misled because they would understand that ‘Fees’ here would not include 18 government-imposed fees. Defendants are free to revisit this argument following discovery.”). 19 Accordingly, the court rejects defendant’s arguments that it is impossible for a reasonable 20 consumer to be misled by defendant’s C9 labeling because the difference in bulb width between 21 its Product and standard C9s was either de minimis or clearly apparent to a consumer through the 22 packaging window. 23 As to the Product’s size, defendant also argues that the C9 labelling is not a 24 misrepresentation because “when a Christmas light is described as C9, that does not necessarily 25 mean that it is exactly 1.125 inches . . . .” (Doc. No. 11 at 17.) Defendant invokes language from 26 the ANSI standards, attached as Exhibit B to its request for judicial notice, and in particular 27 points to the Customary Units section of that standard, which states that “[t]he unit shall be 28 expressed in eighths of an inch, with fractions added when necessary.” (Doc. No. 12-2 at 13) 1 (emphasis added). Defendant argues that this language demonstrates that “fractional units can be 2 added for certain size ranges and rounded upwards” and bulbs can “vary in size and still properly 3 be described as C9.” (Doc. No. 11 at 17.) In opposition, plaintiff argues that “[w]hile ANSI does 4 permit limited deviations, these variances are confined to fractions of 1/16th of an inch or 5 smaller.” (Doc. No. 20 at 12.) 6 The court has reviewed the table in the Customary Units section of Exhibit B, and notes 7 that for bulb sizes greater than 0.75 inches, fractional units may be added in the amount of “half 8 of an eighth of an inch,” or 1/16th of an inch (0.0625 inches). (Doc. No. 12-2 at 13.) Further, the 9 Customary Units section of the standard suggests that fractional units added are reflected in the 10 description of the bulb, meaning that if a bulb were fractionally different in size from a standard 11 C9, even by as little as 0.085 inches, the bulb size may be described with more specificity than 12 simply as a C9. (See id.) (noting as an example a “T2-3/4 bulb” or a “T2.7 bulb” to describe a 13 bulb that is 0.085 inches larger in diameter than a standard T2 bulb). Accordingly, the court finds 14 defendant’s contention, that a bulb that is 0.085 inches smaller than a standard C9 bulb is still 15 properly described as a C9, to be entirely unsupported by the information set out in the ANSI 16 standards (Doc. No. 12-2, Exhibit B). The court therefore also rejects defendant’s argument that 17 plaintiff has not alleged a misrepresentation based on the size of the Product’s bulbs because the 18 “language of ANSI C78.79 itself permits some variances in the size of C9 labeled bulbs,” (Doc. 19 No. 11 at 17), and concludes that plaintiff has alleged an actionable misrepresentation on the basis 20 that the Product bulbs are described as C9s but do not meet standard C9 sizing. 21 2. Defendant’s Knowledge 22 Defendant next argues that all three of plaintiff’s claims fail because plaintiff has not 23 alleged defendant’s “knowledge of a defect at the time of sale and its intent to defraud.” (Doc. 24 No. 11 at 23.) In opposition, plaintiff argues that scienter is not a required element of his claims, 25 and that even if it were, his allegations regarding the prominence of the C9 designation on the 26 Product packaging are sufficient to allege defendant’s knowledge of the misrepresentation. (Doc. 27 No. 20 at 16.) In reply, defendant argues that knowledge is a required element because plaintiff’s 28 //// 1 UCL, FAL, and CLRA claims are “grounded in fraud” and “sound in fraud,” and that, as a result, 2 plaintiff must satisfy the particularity requirements of Rule 9(b). (Doc. No. 21 at 9.) 3 The court agrees that plaintiff’s claims sound in fraud and are rooted in a theory of 4 fraudulent misrepresentation, since plaintiff’s complaint alleges each element of a common law 5 fraud claim and incorporates those allegations into all three of his claims. (See Doc. No. 1 at 6 ¶¶ 20, 22, 26, 29, 57, 72, 80) (alleging that the Product’s packaging describes the light bulbs as 7 being C9s when they are not, that defendant knows the Product is mislabeled and intends for 8 customers to rely on the false representations, that plaintiff did indeed rely on the 9 misrepresentation, and that as a result he suffered the loss of the use and usefulness of the 10 Product); see also McKinney v. Corsair Gaming, Inc., No. 22-cv-00312-CRB, 2022 WL 11 2820097, at *5 (N.D. Cal. July 19, 2022) (finding that the plaintiffs’ claims “sound in fraud” 12 where the plaintiffs’ allegations “state all of the elements of common law fraud” and “if 13 allegations of fraud were stripped from the FAC, there would be little left of the UCL, FAL, and 14 CLRA claims”). Accordingly, plaintiff’s claims are subject to Rule 9(b)’s heightened pleading 15 standards for fraud claims. See In re Sony Grand, 758 F. Supp. 2d 1077, 1088 (2010) (holding 16 that the plaintiffs’ UCL, FAL, and CLRA claims “are rooted in theories of fraudulent 17 concealment and fraudulent misrepresentation and therefore must satisfy Rule 9(b)’s heightened 18 pleading requirements”); McKinney, 2022 WL 2820097, at *6. 19 “Under Rule 9(b), circumstances constituting fraud or mistake must be stated with 20 particularity, but malice, intent, knowledge, and other conditions of a person’s mind, including 21 scienter, can be alleged generally.” United States v. Corinthian Colleges, 655 F.3d 984, 996 (9th 22 Cir. 2011) (internal citation and quotation marks omitted). “This does not mean that conclusory 23 allegations regarding a defendants’ knowledge will suffice.” Punian v. Gillette Co., No. 14-cv- 24 05028-LHK, 2015 WL 4967535, at *10 (N.D. Cal. Aug. 20, 2015). Plaintiff’s complaint must 25 simply “set out sufficient factual matter from which a defendant’s knowledge of a fraud might 26 reasonably be inferred.” United States ex rel. Anita Silingo v. WellPoint, Inc., 904 F.3d 667, 679 27 (9th Cir. 2018). As to the timing of that knowledge, plaintiff must plead defendant’s knowledge 28 of fraud before or at the time of plaintiff’s purchase. Freund v. HP, Inc., No. 22-cv-03794-BLF, 1 2023 WL 5184140, at *3 (N.D. Cal. Aug. 10, 2023) (“The parties agree that Plaintiff must plead 2 HP’s knowledge of the defect at the time the sale was made.”); see also Klaehn v. Cali Bamboo 3 LLC, No. 21-55738, 2022 WL 1830685, at *2 (9th Cir. June 3, 2022) (“Under Fed. R. Civ. P. 4 9(b), a plaintiff must plead circumstances from which a court can plausibly infer the defendant’s 5 knowledge. So, the question here is whether Plaintiffs pleaded facts about the circumstances of 6 the alleged defect that would allow us to infer that Cali knew about the defect at the time of sale 7 to Plaintiffs.”);2 Resnick v. Hyundai Motor Am., Inc., No. 16-cv-00593-BRO-PJW, 2017 WL 8 1531192, at *14 (C.D. Cal. Apr. 13, 2017) (rejecting the plaintiffs’ argument that “knowledge is 9 not required to prove claims based on Defendants’ alleged affirmative misrepresentations,” noting 10 that “a manufacturer’s representations about a product should not be considered deceptive under 11 the CLRA merely because the product manifests a defect of which the manufacturer had no prior 12 knowledge”). 13 As to defendant’s knowledge, plaintiff simply alleges that defendant “knows, or at least it 14 should know, that its Home Accents C9 bulbs are mislabeled.” (Doc. No. 1 at ¶ 22.) In support 15 of defendant’s knowledge, plaintiff alleges only that the C9 labeling appearing on the Product is 16 conspicuous. (See Doc. No. 1 at ¶ 23) (alleging that “the product page conspicuously identifies 17 the size and shape of the light bulb (e.g., C7 or C9), both in the product name and its 18 specifications”). However, plaintiff does not allege any facts regarding when defendant became 19 aware that the Product was mislabeled or that the Product bulbs did not meet standard C9 20 specifications—namely, whether that event occurred before or after plaintiff’s purchase. 21 Accordingly, the court concludes that plaintiff’s complaint does not satisfy the heightened 22 pleading requirements of Rule 9(b). See Hauck v. Advanced Micro Devices, Inc., No. 18-cv- 23 00447-LHK, 2018 WL 5729234, at *6 (N.D. Cal. Oct. 29, 2018) (finding that the plaintiffs failed 24 to sufficiently allege fraud where the class action complaint contained no allegations that the 25 defendant “knew of the Defect before the California Plaintiffs’ purchase dates” and therefore 26 “fails to allege [the defendant’s] pre-purchase knowledge”); see also Snyder v. TAMKO Bldg. 27 2 Citation to unpublished Ninth Circuit opinions throughout this order is appropriate pursuant to 28 Ninth Circuit Rule 36-3(b). 1 Prods., Inc., No. 1:15-cv-01892-TLN-KJN, 2019 WL 4747950, at *11 (E.D. Cal. Sept. 30, 2019) 2 (“These allegations are the type of conclusory allegations that are not sufficient to support the 3 conclusion that Defendant obtained actual knowledge of the specific defect, nor do they come 4 close to establishing that Defendant knew of the defect prior to Plaintiff’s purchase.”); In re 5 Hydroxycut Mktg. & Sales Pracs. Litig., 299 F.R.D. 648, 659 (S.D. Cal. 2014) (“Plaintiffs have 6 not alleged facts that would give rise to an inference of knowledge on the part of the Retailer 7 Defendants that the advertisements regarding the Hydroxycut Products’ safety and effectiveness 8 were not true. The allegations that the Retailer Defendants ‘knew or should have known’ are 9 conclusory.”). All three of plaintiff’s claims will therefore be dismissed. See Resnick, 2017 WL 10 1531192, at *19 (dismissing the plaintiffs’ UCL, FAL, and CLRA claims where the plaintiffs 11 “failed to establish that Defendants knew or should have known of any alleged paint defect at the 12 time they advertised or provided information on their website”); Snyder, 2019 WL 4747950, at 13 *11 (dismissing the plaintiff’s claims brought under the UCL, FAL, and CLRA because the 14 plaintiff did “not sufficiently allege Defendant had actual knowledge of the alleged defects prior 15 to Plaintiff’s purchase”). 16 In reaching this conclusion, however, the court observes that this failure appears to be a 17 rather “minor deficienc[y],” Corinthian Colleges, 655 F.3d at 997, that could be readily cured 18 through the inclusion of additional factual allegations suggesting that defendant knew the 19 Product’s bulbs were not C9s before it began selling the Product, perhaps through its own testing 20 of the Product, or because defendant sells numerous other lighting products, including several that 21 do contain actual C9 bulbs. See Punian, 2015 WL 4967535, at *10 (“For instance, an additional 22 basis for defendant’s knowledge of a defect could be an allegation that the defendant knew of a 23 defect from internal testing.”) (citation omitted). 24 3. Damages 25 Defendant also argues that plaintiff has not alleged facts plausibly showing that he 26 incurred any damages. (Doc. No. 11 at 24.) In opposition, plaintiff argues that he has adequately 27 alleged damages “under the benefit-of-the-bargain theory,” because he alleged that he would not 28 have purchased the Product, or paid as much as he did for it, had the Product been accurately 1 labeled. (Doc. No. 20 at 17.) In reply, defendant argues plaintiff’s allegations are too broad and 2 conclusory to adequately allege damages. 3 “Under California law, the economic injury of paying a premium for a falsely advertised 4 product is sufficient harm to maintain a cause of action.” Davidson v. Kimberly-Clark Corp., 889 5 F.3d 956, 965 (9th Cir. 2018). “Thus, a consumer’s allegation that “she would not have bought 6 the product but for the misrepresentation . . . is sufficient to allege causation . . . [and] to allege 7 economic injury.” Id. at 965–66 (citing Kwikset Corp. v. Superior Court, 51 Cal.4th 310, 330 8 (2011)). 9 “To properly plead an economic injury, a consumer must allege that she was exposed to 10 false information about the product purchased, which caused the product to be sold at a higher 11 price, and that she ‘would not have purchased the goods in question absent this 12 misrepresentation.’” Davidson, 889 F.3d at 966 (quoting Hinojos v. Kohl’s Corp., 718 F.3d 1098, 13 1105 (9th Cir. 2013)). Plaintiff has done so here. Plaintiff alleges that he “saw and relied on 14 misrepresentations that the lights met the C9 standard,” that defendant “[sold] its product at a 15 higher price and realize[d] sales it would not have otherwise made,” and that “[i]f the Home 16 Accents C9 lights had been accurately labeled, Plaintiff and other Class members would not have 17 purchased the product and/or would not have paid as much for them.” (Doc. No. 1 at ¶¶ 25, 26, 18 29.) These allegations are adequate to plead an economic injury at this stage of the litigation and, 19 accordingly, the court finds defendant’s argument that plaintiff’s claims should be dismissed for 20 failure to adequately allege that he suffered damages to be unpersuasive. See Davidson, 889 F.3d 21 at 966–67 (finding on the basis of similar allegations that the plaintiff had “properly alleged that 22 she was injured by [the defendant’s] allegedly false advertising”).3 23

24 3 In its reply brief, defendant argues that plaintiff failed to respond to its argument that plaintiff “has no claim for punitive damages,” and the court should therefore “strike this claim for relief.” 25 (Doc. No. 21 at 12.) In reviewing defendant’s pending motion, the sole argument advanced therein regarding damages is that plaintiff’s allegations as to damages are conclusory; defendant 26 advances no argument concerning pleading requirements for punitive damages specifically or 27 concerning the availability of punitive damages under the UCL, CLRA, or FAL. Accordingly, the court rejects defendant’s request in its reply brief that the court strike plaintiff’s claim for 28 punitive damages. 1 4. Equitable Relief 2 Finally, defendant argues that plaintiff has not adequately pleaded facts supporting his 3 request for equitable relief. (Doc. No. 11 at 25.) Defendant observes that “Plaintiff has not 4 alleged that he intends to purchase the Products again,” and “[w]ithout such allegations, Plaintiff 5 has no standing to assert a claim for equitable relief . . . .” (Doc. No. 11 at 26.) In opposition, 6 plaintiff argues that a “previously deceived consumer [may] have standing to seek injunctive 7 relief under certain circumstances” and that plaintiff “cannot easily determine whether Home 8 Depot’s future packaging is accurate.” (Doc. No. 20 at 18–19.) In reply, defendant reiterates that 9 plaintiff has “not alleged that he intends to buy the same holiday lights at any time in the future— 10 let alone that he will do so imminently—so his speculation about what future packaging may say 11 is irrelevant.” (Doc. No. 21 at 13.) 12 The court finds defendant’s argument to be persuasive. It is true, as plaintiff points out, 13 that the Ninth Circuit has held that “a previously deceived consumer may have standing to seek 14 an injunction against false advertising or labeling, even though the consumer now knows or 15 suspects that the advertising was false at the time of the original purchase.” Davidson, 889 F.3d 16 at 969. Nonetheless, one’s standing to do so depends on whether “the consumer may suffer an 17 ‘actual and imminent, not conjectural or hypothetical’ threat of future harm.” Id. (quoting 18 Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)). In Davidson, the plaintiff sued a 19 manufacturer of personal cleansing wipes, alleging that the manufacturer falsely advertised the 20 wipes as ‘flushable’ in violation of the UCL, FAL, and CLRA when they were not, in fact, 21 flushable. Id. at 961. Critical to the court’s holding that plaintiff had standing to seek injunctive 22 relief in that case were the allegations appearing in the complaint that the plaintiff: 23 continues to desire to purchase wipes that are suitable for disposal in a household toilet; would purchase truly flushable wipes 24 manufactured by [Kimberly-Clark] if it were possible; regularly visits stores . . . where [Kimberly-Clark’s] ‘flushable’ wipes are sold; 25 and is continually presented with Kimberly-Clark’s flushable wipes packaging but has no way of determining whether the representation 26 ‘flushable’ is in fact true. 27 Id. at 970–71. Here, plaintiff has not presented any comparable allegations in his complaint that 28 he has any desire to again purchase the Product or will in fact do so. Because plaintiff “does not 1 allege the threat of future harm that Davidson held is required for Article III standing in a case 2 seeking public injunctive relief,” Stover v. Experian Holdings, Inc., 978 F.3d 1082, 1087 (9th Cir. 3 2020), plaintiff’s argument that he has standing to pursue injunctive relief in this case necessarily 4 fails. See Mendoza v. Electrolux Home Prods., Inc., No. 1:20-cv-01133-DAD-BAM, 2022 WL 5 4082200, at *8 (E.D. Cal. Sept. 6, 2022) (finding that the plaintiffs lacked standing to seek 6 injunctive relief where they brought CLRA, UCL, and Song-Beverly Act claims regarding their 7 purchase of microwaves but “d[id] not allege that they have any intention of repurchasing the 8 Microwaves”).4 9 C. Leave to Amend 10 Leave to amend should be granted “freely” when justice so requires. Fed. R. Civ. 11 P. 15(a). The Ninth Circuit maintains a policy of “extreme liberality generally in favoring 12 amendments to pleadings.” Rosenberg Bros. & Co. v. Arnold, 283 F.2d 406, 406 (9th Cir. 1960). 13 Generally, dismissal without leave to amend is proper only if it is clear that “the complaint could 14 not be saved by any amendment.” Intri-Plex Techs. v. Crest Grp., 499 F.3d 1048, 1056 (9th Cir. 15 2007) (citation omitted); see also Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th 16 Cir. 1989) (“Leave need not be granted where the amendment of the complaint . . . constitutes an 17 exercise in futility . . . .”). 18 In his opposition to the pending motion to dismiss, plaintiff requests leave to amend his 19 complaint should the court grant defendant’s motion. (Doc. No. 20 at 21.) It is not at all clear 20 that permitting plaintiff leave to amend to attempt to cure the pleading deficiencies of his

21 4 The court notes that if plaintiff could in good faith allege that he would purchase the Product from defendant again in the future if the Product did in fact contain C9 bulbs, but he would be 22 unable to rely on the Product’s C9 labeling at that time, plaintiff would likely satisfy the 23 requirements of demonstrating his standing for equitable relief. See Clark v. Eddie Bauer LLC, No. 21-35334, 2024 WL 177755, at *2–3 (9th Cir. Jan. 17, 2024) (relying on its decision in 24 Davidson in concluding that the plaintiff had standing to pursue injunctive relief where she alleged that she “would shop at one of Eddie Bauer’s Oregon Outlet Stores again if she could 25 have confidence regarding the truth of Eddie Bauer’s prices and the value of its products”); Carey v. J.A.K.’s Puppies, Inc., No. 5:21-cv-02095-WLH-DTB, 2025 WL 1718082, at *3 (C.D. Cal. 26 June 3, 2025) (denying the defendant’s motion to dismiss the plaintiffs’ request for injunctive 27 relief where the plaintiffs alleged that they will likely acquire another dog in the future, they desire to purchase rescue puppies, but they will be unable to rely on the defendant’s 28 representations that its puppies are indeed rescue puppies). 1 | complaint discussed above would be futile, and defendant does not argue that leave to amend 2 | should be denied. Therefore, the court will grant plaintiff leave to amend his complaint to include 3 | additional allegations, in particular regarding defendant’s knowledge of the alleged 4 | misrepresentation and supporting plaintiffs request for equitable relief, if plaintiff can do so in 5 | good faith. Defendant is encouraged to take heed of the court’s analysis set forth above as to the 6 | sufficiency of plaintiff's allegations regarding actionable misrepresentation and damages in 7 | formulating its response to any amended complaint submitted by plaintiff. 8 CONCLUSION 9 Accordingly, 10 1. Defendant’s request for judicial notice (Doc. No. 12) is GRANTED; 11 2. Defendant’s motion to dismiss plaintiff's complaint (Doc. Nos. 11, 17) is 12 GRANTED, with plaintiff being granted leave to amend as to all of his causes of 13 action; 14 3, Plaintiff shall file his first amended complaint, or alternatively, a notice of his 15 intent to not file a first amended complaint, within twenty-one (21) days from the 16 date of entry of this order; and 17 4. The court hereby RESETS the Initial Scheduling Conference in this matter for 18 October 27, 2025 at 1:30 p.m. before District Judge Dale A. Drozd by Zoom. 19 IT IS SO ORDERED. | Dated: _ July 19, 2025 Dae A. 2, gel 21 DALE A. DROZD 0 UNITED STATES DISTRICT JUDGE

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