Jeff Jonah v. Kimberly-Clark Corporation et al

Northern District of California, cand-4:2015-cv-03243

MOTION to Dismiss AND STRIKE AMENDED COMPLAINT, OR, IN THE ALTERNATIVE, MOTION FOR STAY; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF filed by Kimberly-Clark Corporation, Kimberly-Clark Global Sales, LLC., Kimberly-Clark Worldwide, Inc. Motion Hearing set for 10/7/2015 09:00 AM in Courtroom 3, 3rd Floor, Oakland before Hon. Phyllis J. Hamilton. Responses due by 9/16/2015. Replies due by 9/23/2015.

Interested in this case?

Current View

Full Text

Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page1 of 37 1 Amy P. Lally, SBN 198555 alally@sidley.com 2 Darlene M. Cho, SBN 251167 dcho@sidley.com 3 SIDLEY AUSTIN LLP 555 West Fifth Street, Suite 4000 4 Los Angeles, California 90013 Telephone: (213) 896-6000 5 Facsimile: (213) 896-6600 6 Attorneys for Defendants 7 KIMBERLY-CLARK CORPORATION; KIMBERLY-CLARK GLOBAL SALES, 8 LLC; and KIMBERLY-CLARK WORLDWIDE, INC. 9 10 UNITED STATES DISTRICT COURT 11 FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION 12 13 JEFF JONAH, an individual, on behalf of) Case No. 15-cv-03243-PJH 14 himself, the general public and those) similarly situated,) Assigned to: Hon. Phyllis J. Hamilton 15) Plaintiff,) DEFENDANTS’ NOTICE OF MOTION 16) AND MOTION TO DISMISS AND v.) STRIKE AMENDED COMPLAINT, OR, 17) IN THE ALTERNATIVE, MOTION FOR KIMBERLY-CLARK CORPORATION;) STAY; MEMORANDUM OF POINTS 18 KIMBERLY-CLARK WORLDWIDE,) AND AUTHORITIES IN SUPPORT INC.; KIMBERLY-CLARK GLOBAL) THEREOF 19 SALES LLC; and DOES 1 through 50)) [Filed Concurrently With: Request for 20 Defendants.) Judicial Notice In Support of Defendants’) Motion to Dismiss and to Strike and 21) (Proposed) Order]) 22) Date: October 7, 2015) Time: 9:00 a.m. 23) Place: Courtroom 3 24 25 26 27 28 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page2 of 37 1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE THAT on October 7, 2015 at 9:00 a.m., or as soon thereafter 3 this matter may be heard, before the Honorable Phyllis J. Hamilton, in Courtroom 3, of the United 4 States District Court for the Northern District of California, located at 1301 Clay Street, Oakland, 5 CA 94612, Defendants Kimberly-Clark Corporation, Kimberly Clark Global Sales, LLC and 6 Kimberly-Clark Worldwide, Inc. ("Defendants" or "Kimberly-Clark") will and hereby do move 7 pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for an order dismissing all claims 8 of the Amended Complaint filed by Plaintiff Jeff Jonah on August 3, 2015 (Doc. No. 24) 9 [hereinafter, "AC"] on the following grounds: 10 • Plaintiff has failed to establish standing to state a claim for prospective injunctive 11 relief because he has not alleged facts demonstrating that he will be injured by the 12 alleged misrepresentations in the future; 13 • Plaintiff’s claims are time-barred; 14 • Plaintiff has failed to plead any claim with the degree of particularity required by 15 Federal Rule of Civil Procedure 9(b); 16 • Plaintiff has failed to allege facts sufficient to support his claim that Defendants made 17 any affirmative or misleading misrepresentations; and 18 • Plaintiff has failed to allege facts sufficient to support his claim that Defendants 19 fraudulently omitted or concealed facts. 20 Defendants also move for an order striking Paragraphs 45-51, 62, 65-66, 68-70 of the 21 Amended Complaint pursuant to Federal Rule of Civil Procedure 12(f) on the grounds that these 22 statements are immaterial, impertinent, and irrelevant to this action. 23 In the alternative to dismissing this action and striking the specified paragraphs, Defendants 24 move to stay this action pending the resolution of the related action, Davidson v. Kimberly-Clark, et 25 al., 9th Cir. Case No. 15-16173, which will address many of the same substantive issues and 26 defenses to be resolved in this action, and is therefore likely to have binding effect under principles 27 of stare decisis or at a minimum, will provide substantial guidance to this Court. 28 1 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page3 of 37 1 This Motion is based upon this Notice of Motion and Motion, the accompanying 2 Memorandum of Points and Authorities, Request for Judicial Notice, any Reply Memorandum 3 submitted by Defendants, the pleadings and filings in this action, any additional matter of which the 4 Court may take judicial notice, and such further evidence or argument as may be presented before or 5 at the hearing on this Motion. 6 7 Dated: September 2, 2015 SIDLEY AUSTIN LLP 8 9 By:/s/Amy P. Lally Amy P. Lally 10 Attorneys for Defendants Kimberly-Clark Corporation; Kimberly-Clark 11 Global Sales, LLC; and Kimberly-Clark Worldwide, Inc. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF Case No. 15-cv-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page4 of 37 1 TABLE OF CONTENTS 2 Page 3 SUMMARY OF RELEVANT FACTS APPLICABLE TO PLAINTIFF...................................... 1 4 SUMMARY OF ARGUMENT...................................................................................................... 1 5 ARGUMENT.................................................................................................................................. 3 6 I. PLAINTIFF LACKS STANDING TO SEEK PROSPECTIVE INJUNCTIVE RELIEF............................................................................................................................... 3 7 A. Legal Standard Under Federal Rule of Civil Procedure 12(b)(1)........................... 3 8 B. Plaintiff Lacks Standing for Prospective Injunctive Relief.................................... 4 9 II. REPRESENTATIONS PLAINTIFF DID NOT SEE SHOULD BE STRICKEN............. 5 10 III. PLAINTIFF’S CLAIMS ARE TIME-BARRED AND SHOULD BE 11 DISMISSED....................................................................................................................... 6 12 IV. PLAINTIFF’S CLAIMS LACK MERIT AND MUST BE DISMISSED.......................... 8 13 A. Legal Standard for Failure to State a Claim Under Rules 9(b) and 12(b)(6).......... 8 14 B. Plaintiff Has Not Sufficiently Pleaded With Particularity Exposure to and Reliance upon the Alleged Misrepresentations....................................................... 9 15 C. Plaintiff’s Misrepresentation Claims Must Be Dismissed Because Plaintiff 16 Has Failed to Establish Falsity or That a Reasonable Consumer Would Be Deceived By the Alleged Misrepresentations....................................................... 11 17 1. No Reasonable Person Would Be Deceived By the Package 18 Representations as to the Time It Would Take to Break Apart After Flushing..................................................................................................... 12 19 2. None of the Representations Upon Which Plaintiff Claims to Have 20 Relied Convey to a Reasonable Person the Frequency With Which One May Have to Plunge Their Toilets.................................................... 13 21 3. Plaintiff Fails to State a Claim Based on Alleged Damage Caused 22 by Cottonelle Wipes to Septic Tank or System........................................ 15 23 4. Plaintiff Cannot State a Claim Based On Alleged Damage to City’s Sewer System or to Municipalities or Wastewater Treatment 24 Facilities Writ Large................................................................................. 15 25 5. To the Extent Any Claims Are Based on the Industry Standards Kimberly-Clark Products Meet, the Claims Fail...................................... 17 26 D. Plaintiff Cannot State a Claim Based on California Plumbing Code 27 § 305.1................................................................................................................... 18 28 E.Plaintiff Cannot Otherwise State a Claim Based on Alleged Omissions.............. 19 i DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page5 of 37 1 V. IN THE ALTERNATIVE, THIS ACTION SHOULD BE STAYED PENDING THE APPEAL OF THE RELATED CASE, DAVIDSON v. KIMBERLY-2 CLARK............................................................................................................................. 21 3 A. A Stay of this Action Pending the Ninth Circuit’s Decision in Davidson Will Further the "Orderly Course of Justice"....................................................... 22 4 B. The Relative Hardship or Inequity to the Parties Weigh in Favor of a Stay........ 23 5 CONCLUSION............................................................................................................................. 25 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page6 of 37 1 TABLE OF AUTHORITIES 2 Page(s) 3 Cases 4 Alamilla v. Hain Celestial Group, Inc., 5 30 F. Supp. 3d 943, 944 (N.D. Cal. 2014).....................................................................................17 6 Allen v. Wright, 468 U.S. 737 (1984).........................................................................................................................3 7 In re Am. Apparel Shareholder Derivative Litig., 8 No. CV 10-06576 MMM (RCX), 2012 U.S. Dist. LEXIS 146970 (C.D. Cal. July 31, 2012)........................................................................................................................................24 9 Aryeh v. Canon Bus. Solutions, Inc., 10 55 Cal. 4th 1185 (2013)...................................................................................................................7 11 Ashcroft v. Iqbal, 12 556 U.S. 662 (2009).............................................................................................................8, 14, 18 13 Bay Area Surgical Group, Inc. v. Aetna Life Ins. Co., No. 13-cv-05430-EJD, 2014 U.S. Dist. LEXIS 83152 (N.D. Cal. June 17, 2014)............22, 23, 24 14 Bell Atlantic Corp. v. Twombly, 15 550 U.S. 544 (2007).........................................................................................................................8 16 Bickley v. Schneider Nat’l Carriers, Inc., 17 No. 08-05806-JSW, 2013 U.S. Dist. LEXIS 8636 (N.D. Cal. Jan. 22, 2013)...............................22 18 Bird v. First Alert, Inc., No. C 14-3585 PJH, 2015 U.S. Dist. LEXIS 77209 (N.D. Cal. June 15, 2015)............................11 19 Buller v. Sutter Health, 20 160 Cal. App. 4th 981 (2008)........................................................................................................20 21 Campion v. Old Rep. Home Protection Co., Inc., 22 861 F. Supp. 2d 1139 (S.D. Cal. 2012)............................................................................................4 23 Caro v. Procter & Gamble Co., 18 Cal. App. 4th 644 (1993)....................................................................................................14, 15 24 Carrea v. Dreyer's Grand Ice Cream, Inc., 25 No. C 10-01044 JSW, 2011 U.S. Dist. LEXIS 6371 (N.D. Cal. Jan. 10, 2011), aff’d 475 Fed. Appx. 113 (9th Cir. Apr. 5, 2012)....................................................................12, 16 26 27 Castagnola v. Hewlett-Packard Co., No. C 11-05772 JSW, 2012 U.S. Dist. LEXIS 82026 (N.D. Cal. June 13, 2012)...........................4 28 iii DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page7 of 37 1 Cattie v. Wal-Mart Stores, Inc., 504 F. Supp. 2d 939 (S.D. Cal. 2007)..............................................................................................5 2 CMAX, Inc. v. Hall, 3 300 F.2d 265 (9th Cir. 1962)...................................................................................................22, 23 4 Colaprico v. Sun Microsystem, Inc., 5 758 F. Supp. 1335 (N.D. Cal. 1991)............................................................................................5, 6 6 Collins v. eMachines, Inc., 202 Cal. App. 4th 249 (2011)........................................................................................................20 7 Daugherty v. Am. Honda Motor Co., Inc., 8 144 Cal. App. 4th 824 (2006)........................................................................................................19 9 Davidson v. Kimberly-Clark Corp., 10 2014 U.S. Dist. LEXIS 176394 (N.D. Cal. Dec. 19, 2014)...........................................................24 11 Davidson v. Kimberly-Clark Corp., 2015 U.S. Dist. LEXIS 64168 (N.D. Cal. May 15, 2015).............................................................24 12 Davidson v. Kimberly-Clark Corp., 13 No. 14-1783 PJH, 2014 U.S. Dist. LEXIS 110055 (N.D. Cal. Aug. 8, 2014)....................... passim 14 Davidson v. Kimberly-Clark, et al., 15 9th Cir. Case No. 15-16173...........................................................................................................21 16 Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152 (9th Cir. 2012).................................................................................................11, 16 17 Decker v. GlenFed, Inc. (In re GlenFed, Inc. Sec. Litig.), 18 42 F.3d 1541 (9th Cir. 1994) (en banc), superseded by statute on other grounds in Ronconi v. Larkin, 253 F.3d 423 (9th Cir. 2001)...........................................................................11 19 Doe v. Successfulmatch.com, 20 70 F. Supp. 3d 1066 (N.D. Cal. 2014).....................................................................................10, 21 21 Donohue v. Apple, Inc., 22 871 F. Supp. 2d 913 (N.D. Cal. 2012)...........................................................................................21 23 E-Fab, Inc. v. Accountants, Inc. Servs., 153 Cal. App. 4th 1308 (2007)........................................................................................................7 24 Fantasy, Inc. v. Fogerty, 25 984 F.2d 1524 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517 (1994)................................5 26 Ferranti v. Hewlett-Packard Co., 27 No. No. 5:13-CV-03847-EJD, 2014 U.S. Dist. LEXIS 131249 (N.D. Cal. Sept. 16, 2014)........................................................................................................................................21 28 iv DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page8 of 37 1 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000).....................................................................................................................4, 5 2 Gong-Chun v. Aetna, Inc., 3 No. 09-cv-01995-AWI-SKO, 2010 U.S. Dist. LEXIS 56938 (E.D. Cal. May 15, 4 2010)..............................................................................................................................................25 5 Gustavson v. Mars, Inc., No. 13-cv-04537-LHK, 2014 U.S. Dist. LEXIS 171736 (N.D. Cal. Dec. 10, 2014)....................22 6 Herskowitz v. Apple Inc., 7 940 F. Supp. 2d 1131 (N.D. Cal. 2013)...........................................................................................4 8 Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999).........................................................................................................4 9 10 In re iPhone 4S Consumer Litig., No. C 12-1127 CW, 2014 U.S. Dist. LEXIS 19363 (N.D. Cal. Feb. 14, 2014)............................18 11 In re iPhone Application Litig., 12 6 F. Supp. 3d 1004, 1018-20 (N.D. Cal. 2013)..............................................................................10 13 Jolly v. Eli Lilly & Co., 44 Cal. 3d 1103 (1988)....................................................................................................................7 14 15 Kane v. Chobani, Inc., No. 12-CV-02425-LHK, 2013 U.S. Dist. LEXIS 134385 (N.D. Cal. Sept. 19, 16 2013)....................................................................................................................................4, 11, 16 17 Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir. 2009)...............................................................................................8, 9, 10 18 Kimball v. Pacific Gas & Elec. Co., 19 220 Cal. 203 (1934).........................................................................................................................7 20 Kokkonen v. Guardian Life Ins. Co., 21 511 U.S. 375 (1994).........................................................................................................................3 22 Kwikset Corp. v. Superior Court, 51 Cal. 4th 310 (2011).............................................................................................................15, 16 23 Lamar Co., LLC v. Continental Cas. Co., 24 No. CV-05-320-AAM, 2007 U.S. Dist. LEXIS 101670 (E.D. Wash. Jan. 8, 2007).....................24 25 Landis v. N. Am. Co., 26 299 U.S. 248 (1936).................................................................................................................22, 24 27 Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496 (2003)........................................................................................................11 28 v DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page9 of 37 1 Lazar v. Superior Court, 12 Cal. 4th 631 (1996)...................................................................................................................11 2 Leyva v. Certified Grocers of California, Ltd., 3 593 F.2d 857 (9th Cir. 1979).........................................................................................................22 4 Liberty Surplus Ins. Corp. v. IMR Contrs. Corp., 5 No. CV 08-5773 JSW, 2009 U.S. Dist. LEXIS 37580 (N.D. Cal. Apr. 14, 2009)........................24 6 LiMandri v. Judkins, 52 Cal. App. 4th 326 (1997)....................................................................................................20, 21 7 In re LinkedIn User Privacy Litig., 8 932 F.Supp.2d 1089 (N.D. Cal. 2013)...........................................................................................10 9 Lovejoy v. AT&T Corp., 10 92 Cal. App. 4th 85 (2001)............................................................................................................19 11 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).........................................................................................................................4 12 Marolda v. Symantec Corp., 13 672 F. Supp. 2d 992 (N.D. Cal. 2009).............................................................................................9 14 Marshall v. PH Beauty Labs, Inc., 15 No. CV 15-02101 DDP, 2015 U.S. Dist. LEXIS 68636 (C.D. Cal. May 27, 2015)........................7 16 Mediterranean Enters., Inc. v. Ssangyong Corp., 708 F.2d 1458 (9th Cir. 1983).......................................................................................................22 17 Miller v. Ghirardelli Chocolate Co., 18 912 F. Supp. 2d 861 (N.D. Cal. 2012).............................................................................................3 19 Mlejnecky v. Olympus Imaging Am., Inc., No. 2:10-CV-02630JAM-KJN, 2011 U.S. Dist. LEXIS 42333 (E.D. Cal. Apr. 19, 20 2011)................................................................................................................................................3 21 Mock v. Santa Monica Hosp., 22 187 Cal. App. 2d 57 (1960).............................................................................................................7 23 Nelsen v. King County, 895 F.2d 1248 (9th Cir. 1990).....................................................................................................3, 4 24 O’Shea v. Littleton, 25 414 U.S. 488 (1974).........................................................................................................................3 26 Ove v. Gwinn, 27 264 F.3d 817 (9th Cir. 2001)...........................................................................................................8 28 vi DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page10 of 37 1 Pierre v. Nicoll, No. 13-cv-02427-WHO, 2013 U.S. Dist. LEXIS 138919 (N.D. Cal. Sept. 25, 2 2013)................................................................................................................................................6 3 Plumlee v. Pfizer, Inc., 4 No.: 13-CV-00414-LHK, 2014 U.S. Dist. LEXIS 121634 (N.D. Cal. Aug. 29, 2014)................................................................................................................................................7 5 Princess Cruise Lines, Ltd. v. Super. Ct., 6 179 Cal. App. 4th 36 (2009)............................................................................................................9 7 San Diego Padres Baseball P’ship v. United States, No. 99-cv-0828-W, 2000 U.S. Dist. LEXIS 10987 (S.D. Cal. July 13, 2000)..............................23 8 In re Tobacco II Cases, 9 46 Cal. 4th 298 (2009).............................................................................................................15, 16 10 Vega v. Jones, Day, Reavis & Pogue, 11 121 Cal. App. 4th 282 (2004)........................................................................................................19 12 Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003).........................................................................................................8 13 Wang v. OCZ Tech. Grp., Inc., 14 276 F.R.D. 618 (N.D. Cal. 2011).................................................................................................5, 9 15 Williamson v. Apple, Inc., 16 No. 5:11-cv-00377 EJD, 2012 U.S. Dist. LEXIS 125368 (N.D. Cal. Sept. 4, 2012)....................20 17 Wilson v. Century 21 Great Western Realty, 15 Cal. App. 4th 298 (1993)..........................................................................................................19 18 Wilson v. Hewlett-Packard Co., 19 668 F.3d 1136 (9th Cir. 2012).......................................................................................................19 20 Yastrab v. Apple Inc., 21 No. 5:14-cv-01974-EJD, 2015 U.S. Dist. LEXIS 37119 (N.D. Cal. Mar. 23, 2015)......................9 22 Yumul v. Smart Balance, Inc., 733 F. Supp. 2d 1117 (C.D. Cal. 2010)...........................................................................................8 23 Statutes 24 Cal. Bus. & Prof. Code § 17203..........................................................................................................18 25 Cal. Bus. & Prof. Code § 17208............................................................................................................6 26 27 Cal. Civ. Code § 1780(a)...............................................................................................................15, 16 28 Cal. Civ. Code § 1783............................................................................................................................6 vii DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page11 of 37 1 Cal. Civ. Proc. Code § 338(a)................................................................................................................6 2 Cal. Civ. Proc. Code § 338(d)................................................................................................................6 3 Cal. Civ. Proc. Code § 339(1)................................................................................................................6 4 Cal. Health & Safety Code § 18909(a)................................................................................................19 5 Cal. Health & Safety Code §§ 18935-18944.18................................................................................19 6 Cal. Plumbing Code § 305.1................................................................................................................18 7 Other Authorities 8 Fed. R. Civ. P. 8(a)..............................................................................................................................14 9 Fed. R. Civ. P. 9(b)...................................................................................................................... passim 10 Fed. R. Civ. P. 12(b)(1)......................................................................................................................3, 4 11 Fed. R. Civ. P. 12(b)(6)..........................................................................................................................8 12 13 Fed. R. Civ. P. 12(f)...............................................................................................................................5 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 viii DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page12 of 37 1 SUMMARY OF RELEVANT FACTS APPLICABLE TO PLAINTIFF 2 Plaintiff Jeff Jonah ("Plaintiff") purports to bring this putative class action lawsuit under 3 California law based on allegations that the Cottonelle® brand of "flushable wipes" he purchased--4 and three other flushable wipe products offered for sale under the Scott Naturals®, Huggies®, and U 5 by Kotex® brands of Defendant Kimberly Clark Global Sales, LLC ("Kimberly-Clark" or 6 "Defendant")1 (i.e., Scott Naturals®, Huggies®, and U by Kotex®) he did not purchase--were 7 falsely and fraudulently advertised as being "flushable." Amended Compl., Doc. No. 24 ("AC") ¶ 1. 8 Plaintiff alleges that in 2010, he first learned of the Cottonelle® Fresh Care Flushable Wipes 9 & Cleansing Cloths ("Cottonelle Wipes") and was "interested in the fact that the product was a pre-10 moistened wipe, and that the package stated that the wipes were'flushable.’ He also read labeling on 11 the package stating that the wipes were'SEWER AND SEPTIC SAFE’ and that'Cottonelle Fresh 12 Care Flushable Cleansing Cloths break up after flushing.’" Id. ¶ 76. Plaintiff alleges that "the first 13 time" he removed Cottonelle Wipes from their package in 2010, "he did not think a product with 14 such a [thick and strong] consistency would be flushable." Id. ¶ 79. During the period he used the 15 Cottonelle Wipes (from 2010 to 2013), he "noticed that the wipes did not break apart rapidly in the 16 toilet bowl like toilet paper, but instead remained largely intact" and his toilet "would clog 17 approximately once a week." Id. ¶¶ 81 & 82. He used a snake "a number of times" which "would 18 sometimes have pieces of the material that was causing the clogs on it. Plaintiff noticed that this 19 material was the Cottonelle Wipes." Id. ¶ 84. He continued to use Cottonelle Wipes until 20 approximately 2013. Id. ¶ 80. This action was filed on June 9, 2015. 21 SUMMARY OF ARGUMENT 22 Plaintiff brings five causes of action based on: the Consumers Legal Remedies Act 23 ("CLRA") (Count I); the False Advertising ("FAL") (Count II); fraud, deceit and/or 24 misrepresentation (Count III); negligent misrepresentation (Count IV); and Unfair Competition Law 25 1 Although Plaintiff has named Kimberly-Clark Worldwide, Inc. and Kimberly-Clark Corporation as 26 co-defendants, neither are necessary nor proper parties to this suit. The sole correct party to this litigation is Kimberly-Clark Global Sales, LLC. The present Motion, however, is filed on behalf of 27 all of the defendants. If necessary, counsel will move to dismiss the wrongly served or identified parties at a later date. 28 1 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page13 of 37 1 ("UCL") (Count V). However, the claims are deficiently pled under applicable law and none of the 2 claims are otherwise viable. 3 Evident by the fact that the bulk of Plaintiff’s so-called "factual" allegations pertain not to his 4 own experience but rather to cities and municipalities, this case concerns the alleged impact wipes 5 that are flushed (not limited to those made by Defendants nor even to those labeled "flushable") have 6 on municipalities or wastewater treatment facilities. See, e.g., AC ¶¶ 45-75. Plaintiff, of course, 7 cannot sue for damages suffered by municipalities or treatment facilities writ large. He therefore 8 styles this action as one based on "false advertising" or "fraud" and then attempts to plead a case 9 around a legal conclusion. Plaintiff’s efforts fail. 10 Plaintiff lacks standing to seek prospective injunctive relief. Plaintiff is under no threat of a 11 future injury because, to the extent that Kimberly-Clark did make any misrepresentations (a fact that 12 Kimberly-Clark disputes), Plaintiff is now aware of "the truth" as he perceives it and will not 13 purchase the same product again. Indeed, Plaintiff makes clear that he will not purchase a Kimberly-14 Clark Product of the same "design and construction [as] the Flushable Wipes," even were Kimberly-15 Clark to remove the word "flushable" from the packaging label. See id. ¶¶ 78-81. Therefore, Plaintiff 16 is not entitled to seek injunctive relief. Because Plaintiff lacks standing to seek prospective 17 injunctive relief, he may not bring a claim for injunctive relief on behalf of a class. 18 In addition, putting aside the lack of merit of Plaintiff’s claims, Plaintiff’s complaint makes 19 clear all of the asserted claims are time-barred. Because Plaintiff claims to have known since "the 20 first time" he removed Cottonelle Wipes from their package in 2010 and through 2013 of facts 21 putting him on notice of the alleged falsity of the package representations, his claims must be 22 dismissed because this action was filed on June 9, 2015, more than a year after the longest 23 limitations period applicable to his claims had lapsed. See id. ¶¶ 79-84. 24 Plaintiff’s complaint must also be dismissed because he has failed to plead his claims, all of 25 which sound in fraud, with the level of particularity required under Rule 9(b). For example, he fails 26 to allege basic facts, such as how much he paid for the wipes, on what dates he bought them, how 27 much of the product he purchased and used, when he learned of the alleged falsity of the 28 representations, whether he continued to use Cottonelle Wipes despite learning of the alleged falsity, 2 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page14 of 37 1 when and under what circumstances he had to and when and under what circumstances he did not 2 have to plunge the toilet right after flushing, among other things. 3 Additionally, Plaintiff’s allegations are insufficient to state a viable claim for false 4 advertising or fraud because Plaintiff has either failed to allege why the representations he relied 5 upon were false or misleading or has failed to establish that a reasonable consumer would likely be 6 deceived by the representations in the same manner Plaintiff claims to have been deceived. Plaintiff 7 also has failed to state a claim for an omission, where the omitted information does not contradict 8 representations made and Kimberly-Clark has no affirmative obligation to provide the allegedly 9 omitted information. For these reasons, and as explained in greater detail below and as may be 10 supplemented in the reply brief and/or at the hearing, Plaintiff’s claims must be dismissed. 11 ARGUMENT 12 I. PLAINTIFF LACKS STANDING TO SEEK PROSPECTIVE INJUNCTIVE RELIEF 13 A. Legal Standard Under Federal Rule of Civil Procedure 12(b)(1) 14 "Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co., 511 15 U.S. 375, 377 (1994). "The Article III case or controversy requirement limits federal courts’ subject 16 matter jurisdiction by requiring that plaintiffs have standing." Mlejnecky v. Olympus Imaging Am., 17 Inc., No. 2:10-CV-02630JAM-KJN, 2011 U.S. Dist. LEXIS 42333, at *3 (E.D. Cal. Apr. 19, 2011) 18 (citing Allen v. Wright, 468 U.S. 737, 750 (1984)). "Standing is a jurisdictional element that must be 19 satisfied prior to class certification." Nelsen v. King County, 895 F.2d 1248, 1249-50 (9th Cir. 1990) 20 (internal quotations omitted). "If the litigant fails to establish standing, he may not'seek relief on 21 behalf of himself or any other member of the class.’" Id. at 1250 (quoting O’Shea v. Littleton, 414 22 U.S. 488, 494 (1974)). This is because "[t]he prudential limitations on federal court jurisdiction 23 require" that a plaintiff "assert his own legal rights and interests, not those of others...." Miller v. 24 Ghirardelli Chocolate Co., 912 F. Supp. 2d 861, 868 (N.D. Cal. 2012). 25 "[T]o satisfy Article III’s standing requirements, a plaintiff must show (1) [he] has suffered 26 an'injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural 27 or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it 28 is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." 3 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page15 of 37 1 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). "The 2 party invoking federal jurisdiction bears the burden of establishing these elements." Lujan v. 3 Defenders of Wildlife, 504 U.S. 555, 561 (1992); see also Kane v. Chobani, Inc., No. 12-CV-02425-4 LHK, 2013 U.S. Dist. LEXIS 134385, at *13 (N.D. Cal. Sept. 19, 2013) ("Once a party has moved 5 to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the opposing party bears the 6 burden of establishing the court’s jurisdiction..."). "A motion to dismiss for lack of subject matter 7 jurisdiction will be granted if the complaint on its face fails to allege facts sufficient to establish 8 subject matter jurisdiction." Herskowitz v. Apple Inc., 940 F. Supp. 2d 1131, 1138 (N.D. Cal. 2013). 9 B. Plaintiff Lacks Standing for Prospective Injunctive Relief 10 "[A] plaintiff must demonstrate standing separately for each form of relief sought." 11 Castagnola v. Hewlett-Packard Co., No. C 11-05772 JSW, 2012 U.S. Dist. LEXIS 82026, at *15 12 (N.D. Cal. June 13, 2012) (dismissing claim for injunctive relief). To establish standing for 13 prospective injunctive relief, a plaintiff must demonstrate that he has suffered or is threatened with a 14 "concrete and particularized" legal harm coupled with a sufficient likelihood that he will again be 15 wronged in a similar way. Id. The plaintiff must establish a "real or immediate threat" of repeated 16 injury. Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1042 (9th Cir. 1999). He "cannot rely on the 17 prospect of future injury to unnamed class members if [he] cannot establish [he has] standing to seek 18 injunctive relief." Castagnola, 2012 U.S. Dist. LEXIS 82026, at *14. 19 In false and misleading advertising cases, there is no likelihood of future injury to the 20 plaintiff if he will not again purchase the product at issue. See Nelsen, 895 F.2d at 1250 (holding 21 there must be "demonstrated probability" that the plaintiff will again be among those injured and 22 dismissing claims for injunctive relief that named plaintiffs asserted on behalf of a class); Davidson 23 v. Kimberly-Clark Corp., No. 14-1783 PJH, 2014 U.S. Dist. LEXIS 110055, at *14-15 (N.D. Cal. 24 Aug. 8, 2014); Castagnola, 2012 U.S. Dist. LEXIS 82026, at *16 (dismissing injunctive relief 25 because plaintiffs did not allege they intended to purchase from defendant again and because they 26 now had knowledge of the true nature of the allegedly misleading statements); Campion v. Old Rep. 27 Home Protection Co., Inc., 861 F. Supp. 2d 1139, 1150 (S.D. Cal. 2012) ("Plaintiff no longer has a 28 warranty plan with Defendant and testified that he does not ever intend to purchase another one. 4 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page16 of 37 1 Furthermore, even if Plaintiff were to purchase another home warranty plan from Defendant, he now 2 has knowledge of Defendant’s alleged misconduct. Thus, Plaintiff cannot show he is realistically 3 threatened by a repetition of the alleged violation."); Wang v. OCZ Tech. Grp., Inc., 276 F.R.D. 618, 4 626-27 (N.D. Cal. 2011) (dismissing injunctive relief claim because "[i]f [plaintiff] paid an inflated 5 price for the product based on [defendant’s] alleged misrepresentations, he is in no danger of doing 6 so again"); Cattie v. Wal-Mart Stores, Inc., 504 F. Supp. 2d 939, 951 (S.D. Cal. 2007) ("[I]t is 7 unclear how prospective relief will redress [plaintiff’s] injury, since she is now fully aware of the 8 linens’ [falsely advertised] thread count. Furthermore, the SAC contains no allegations suggesting 9 she intends to buy linens from Wal-Mart.com in the future. One of Article III’s jurisdictional 10 requirements is that it must be'likely, as opposed to merely speculative, that the injury will be 11 redressed by a favorable decision.’"), quoting Friends of the Earth, 528 U.S. at 180-81. 12 In this case, Plaintiff’s own allegations establish that he will not again be wronged in a 13 similar way, as he has no intention of buying any of Kimberly-Clark’s wipes of the same "design 14 and construction [as] the Flushable Wipes," even were Kimberly-Clark to remove the word 15 "flushable" from the packaging label. AC ¶¶ 87-89. Simply put, Plaintiff wants different wipes, i.e., 16 those that Plaintiff believes fit his preferred definition of what is "suitable for flushing." Indeed, 17 Plaintiff has not purchased Cottonelle Wipes since "approximately 2013." Id. ¶ 80. Because Plaintiff 18 will not again purchase Kimberly-Clark’s products of the same "design and construction [as] the 19 Flushable Wipes," the Court should dismiss or, in the alternative, strike for lack of standing 20 Plaintiff’s request for prospective injunctive relief on behalf of himself and the class. 21 II. REPRESENTATIONS PLAINTIFF DID NOT SEE SHOULD BE STRICKEN 22 Under Rule 12(f) the Court may "strike from a pleading... any redundant, immaterial, 23 impertinent, or scandalous matter." An "immaterial" matter has no essential or important 24 relationship to the claim for relief pled. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 25 1993), rev'd on other grounds, 510 U.S. 517 (1994). An "impertinent" allegation is neither necessary 26 nor relevant to the issues involved in the action. Id.; see also Davidson, 2014 U.S. Dist. LEXIS 27 110055, at *39; Colaprico v. Sun Microsystem, Inc., 758 F. Supp. 1335, 1339 (N.D. Cal. 1991) 28 (motions to strike granted if the matter will have no bearing on the controversy before the court). 5 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page17 of 37 1 Plaintiff references internet materials discussing alleged harm caused by "flushable" wipes. 2 See, e.g., AC ¶¶ 45-51, 62, 65-66, 68-70. These are impertinent and immaterial because Plaintiff did 3 not rely on them, they are geographically outside of this jurisdiction, and they do not discuss harm 4 caused by Kimberly-Clark’s products in particular. Rather, they contain comments about wipes 5 generally from various third parties, such as municipal water facilities and public utilities, none of 6 which are in San Carlos, where Plaintiff lives. Id.; see also id ¶ 3. 7 Contrary to Plaintiff’s assertion, the Bakersfield, California internet news item addressed in 8 Paragraph 68, does not differentiate between the effects of wipes generally and wipes that are 9 marketed and designed to be "flushable" and does not specifically identify Kimberly-Clark or its 10 products as the cause for the efforts identified in the report. Similarly, the Jacksonville Beach, 11 Florida and San Antonio, Texas internet news items addressed in Paragraphs 69 and 70, respectively, 12 merely name one Kimberly-Clark product or Kimberly-Clark as one manufacturer of flushable 13 wipes, not as the perpetrator of any specific issues discussed in the article. Id.¶¶ 69, 70. Moreover, 14 Plaintiff does not allege that he saw or relied upon any of the specific articles cited in the complaint 15 to determine the truth or falsity of Kimberly-Clark’s representations nor do any of the cited 16 paragraphs contain any specific allegations to support Plaintiff’s claims. Pierre v. Nicoll, No. 13-cv-17 02427-WHO, 2013 U.S. Dist. LEXIS 138919, at *12-13 (N.D. Cal. Sept. 25, 2013) (striking 18 plaintiff’s five-page introduction to complaint regarding alleged malfeasance by transitional housing 19 facilities which did not make any specific allegations to support his claims as well as paragraphs 20 containing factual allegations having no connection to plaintiff’s claims). 21 Accordingly, Amended Complaint Paragraphs 45-51, 62, 65-66, 68-70 should be stricken. 22 III. PLAINTIFF’S CLAIMS ARE TIME-BARRED AND SHOULD BE DISMISSED 23 Plaintiff’s claims are subject to limitations periods ranging from two to four years. Cal. Civ. 24 Proc. Code § 339(1) (two-years limitations period for negligent misrepresentation claim); Cal. Civ. 25 Code § 1783 (three-year limitations period for CLRA claim); Cal. Civ. Proc. Code § 338(d) (three-26 year limitations period for fraud claim); Cal. Civ. Proc. Code § 338(a) (three-year limitations period 27 for FAL claim); Cal. Bus. & Prof. Code § 17208 (four-year limitations period for UCL claim). 28 Because this action was filed on June 9, 2015 and Plaintiff claims to have first purchased the 6 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page18 of 37 1 Cottonelle Wipes "in or around 2010," AC ¶ 79, it is evident based on the face of the complaint that 2 Plaintiff’s claims are time-barred under all of the applicable statute of limitations. 3 While not Defendants’ burden to establish the non-applicability of any tolling doctrine,2 it is 4 readily apparent that there is no basis for tolling here. Plaintiff alleges that "the first time" he 5 removed Cottonelle Wipes from their package in 2010, "he did not think a product with such a [thick 6 and strong] consistency would be flushable." AC ¶ 79. He also admits that in the years he used the 7 Cottonelle Wipes from 2010 to 2013, he "noticed that the wipes did not break apart rapidly in the 8 toilet bowl like toilet paper, but instead remained largely intact." Id. ¶ 81. He alleges that during the 9 2010 to 2013 time period, his toilet "would clog approximately once a week." Id. ¶ 82. Plaintiff 10 further alleges that he used a "snake" "a number of times to clear the clogs" and that "sometimes 11 [the snake would] have pieces of" the Cottonelle Wipes on it, id. ¶¶ 83-84. 12 Such allegations are insufficient to establish any basis for tolling. See Marshall v. PH Beauty 13 Labs, Inc., No. CV 15-02101 DDP (AGRx), 2015 U.S. Dist. LEXIS 68636, at *4-6 (C.D. Cal. May 14 27, 2015) (allegations that the plaintiff first purchased defendant's product in Spring 2011, 15 subsequently bought the product again "several times thereafter," and used the product "for a 16 substantial period of time" were insufficient to state a plausible claim within the limitations period 17 for CLRA and FAL claims); Jolly v. Eli Lilly & Co., 44 Cal. 3d 1103, 1111 (1988) ("So long as a 18 suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to 19 find her."). In sum, because the face of Plaintiff’s complaint makes clear all of the claims are time-2 20 It is well-settled that a plaintiff – not the defendant – has the burden to allege facts to support an exception to the basic limitations period. See, e.g., Aryeh v. Canon Bus. Solutions, Inc., 55 Cal. 4th 21 1185, 1197 (2013) (the burden is on the plaintiff "to demonstrate his claims survive based on one or more nonstatutory exceptions to the basic limitations period," which "burden may be imposed even 22 at the pleading stage.") (citations omitted); E-Fab, Inc. v. Accountants, Inc. Servs., 153 Cal. App. 4th 1308, 1319-20 (2007) (the complaint must specifically plead facts to show delayed discovery rule 23 applies); Mock v. Santa Monica Hosp., 187 Cal. App. 2d 57, 64-65 (1960) (holding that the plaintiff must state facts in his complaint for delayed discovery rule to apply) (citations omitted); Kimball v. 24 Pacific Gas & Elec. Co., 220 Cal. 203, 215 (1934) ("[T]here are three major allegations that must be contained in the complaint before it will be held sufficient: 1. The complaint must allege when the 25 fraud was discovered; 2. The circumstances under which it was discovered and, 3. Facts must be alleged to show that plaintiff is not at fault for failing to discover the fraud sooner, and that the 26 plaintiff has no actual or presumptive knowledge of facts sufficient to put him on inquiry.") (internal quotations and citations omitted); Plumlee v. Pfizer, Inc., No.: 13-CV-00414-LHK, 2014 U.S. Dist. 27 LEXIS 121634 (N.D. Cal. Aug. 29, 2014) (dismissing with prejudice CLRA, UCL and FAL claims where plaintiff failed to show that the statutes of limitations had been tolled). 28 7 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page19 of 37 1 barred, Plaintiff’s claims should be dismissed on statute of limitations grounds. 2 IV. PLAINTIFF’S CLAIMS LACK MERIT AND MUST BE DISMISSED 3 A. Legal Standard for Failure to State a Claim Under Rules 9(b) and 12(b)(6) 4 To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege "enough facts to 5 state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 6 (2007). "The plausibility standard... asks for more than a sheer possibility that a defendant has 7 acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Twombly, 550 U.S. at 555 8 ("Factual allegations must be enough to raise a right to relief above the speculative level."). The 9 facts alleged must "allow[] the court to draw the reasonable inference that the defendant is liable for 10 the misconduct alleged." Iqbal, 556 U.S. at 678. While a court must accept as true all material 11 allegations in the complaint, as well as reasonable inferences to be drawn from those allegations, 12 "conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to 13 dismiss." Ove v. Gwinn, 264 F.3d 817, 821 (9th Cir. 2001); see also Iqbal, 556 U.S. at 678 (a 14 pleading is insufficient if it provides only "labels and conclusions," "a formulaic recitation of the 15 elements of a cause of action," or "naked assertions devoid of further factual enhancement" (internal 16 quotations and brackets omitted)); Twombly, 550 U.S. at 555 (court is "not bound to accept as true a 17 legal conclusion couched as a factual allegation"). 18 Where, as here, plaintiff’s allegations sound in fraud or allege a unified course of fraudulent 19 conduct, they are subject to the heightened pleading standard of Rule 9(b). See Kearns v. Ford 20 Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (holding Rule 9(b) applies to claims under 21 California’s UCL and CLRA); Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1107 (9th Cir. 2003) 22 (affirming dismissal with prejudice); Yumul v. Smart Balance, Inc., 733 F. Supp. 2d 1117, 1122-23 23 (C.D. Cal. 2010) (holding Rule 9(b) applies to claims under California’s FAL). Rule 9(b) requires a 24 plaintiff to "set forth more than the neutral facts necessary to identify the transaction." Kearns, 567 25 F.3d at 1124 (citation omitted). Plaintiff must specifically allege the "who, what, when, where, and 26 how of the misconduct charged." Yumul, 733 F. Supp. 2d at 1123 (internal quotations omitted). 27 Plaintiff has not met these requirements and the AC must be dismissed in its entirety. 28 8 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page20 of 37 1 B. Plaintiff Has Not Sufficiently Pleaded With Particularity Exposure to and Reliance upon the Alleged Misrepresentations 2 Plaintiff’s complaint contains a laundry list of cherry-picked advertising claims made on 3 various product labels and assorted web pages that Plaintiff claims are false and misleading. But his 4 complaint can survive only if plaintiff can pinpoint precisely which advertising he saw and when, 5 which advertising he relied upon and why, when he determined the claim to be false, and on what 6 basis he reached his conclusion. 7 This is because to satisfy Rule 9(b), a plaintiff asserting false advertising claims "must plead 8 his own exposure to and reliance upon the alleged misrepresentation." Wang, 276 F.R.D. at 628; see 9 also Davidson, 2014 U.S. Dist. LEXIS 110055, at *28-29; Marolda v. Symantec Corp., 672 F. Supp. 10 2d 992, 1002 (N.D. Cal. 2009) (dismissing CLRA, FAL, and UCL claims for failure to plead 11 exposure to and reliance upon the alleged misrepresentation); Princess Cruise Lines, Ltd. v. Super. 12 Ct., 179 Cal. App. 4th 36, 42-43, 46 (2009) (holding that a necessary element of a CLRA, FAL, or 13 UCL claim is reliance by the plaintiff on the allegedly deceptive statements). "Only by identifying 14 the particular circumstances in which [he] viewed and relied upon" the defendant’s marketing 15 materials does a plaintiff "meet the threshold pleading standard wherein the defendant can prepare 16 an adequate answer from the allegations." Wang, 276 F.R.D. at 628 (internal quotations omitted); 17 see also id. at 627 ("Wang’s allegations do provide OCZ with notice of a general nature, but they do 18 not provide the level of detail needed to satisfy Rule 9(b). For example, Wang... fails to allege 19 when... he viewed, read, or otherwise came to rely upon OCZ’s representations. Similarly, he 20 refers to a wide range of marketing materials and provides representatives examples..., but does 21 not specify the material that caused him to rely on OCZ’s representations."); Yastrab v. Apple Inc., 22 No. 5:14-cv-01974-EJD, 2015 U.S. Dist. LEXIS 37119, at *14 (N.D. Cal. Mar. 23, 2015) ("Plaintiff 23 must at the very least describe some specific statements, state where or on what medium those 24 statements were made, and reveal how Plaintiff accessed them."). 25 The Ninth Circuit has held that pleading failures similar to Plaintiff’s require dismissal under 26 Rule 9(b). In Kearns v. Ford Motor Co., the Ninth Circuit, reviewing the complaint de novo, held 27 that the plaintiff’s UCL and CLRA claims alleging false advertising and fraud in the sale of certified 28 9 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page21 of 37 1 pre-owned vehicles lacked sufficient particularity to satisfy Rule 9(b) where the plaintiff asserted 2 that he was exposed to the alleged misrepresentations through television ads, sales materials, and 3 sales personnel, but failed to allege the "circumstances surrounding such representations," including 4 "what the television advertisements or other sales material specifically stated…, when he was 5 exposed to them or which ones he found material…, [or] which sales material he relied upon in 6 making his decision…." Kearns, 567 F.3d at 1125-27. 7 Here, Plaintiff’s allegations are even more deficient than those found lacking in Kearns. 8 Although Plaintiff references websites containing information about Kimberly-Clark’s products, see, 9 e.g., AC ¶¶ 26, 30, 35, Plaintiff does not allege that he actually viewed any advertisements or 10 websites other than the product packaging before he purchased the Cottonelle Wipes, id ¶ 76. He 11 also does not allege that he saw the labels for any of the other three products at issue that he did not 12 purchase. Id. Without any specific allegations about which of the labels and representations Plaintiff 13 viewed, when he was exposed to them or which ones he found material, Kimberly-Clark is not 14 provided sufficient information to defend itself. See Kearns, 567 F.3d at 1124. 15 And if Plaintiff did not view these representations at all, they cannot form the basis of a claim 16 against Kimberly-Clark. See In re LinkedIn User Privacy Litig., 932 F.Supp.2d 1089, 1093 (N.D. 17 Cal. 2013) (Plaintiff must have read a misrepresentation in order to bring a claim based on it.); In re 18 iPhone Application Litig., 6 F. Supp. 3d 1004, 1018-20 (N.D. Cal. 2013) (refusing to find that 19 plaintiffs relied on a statement they did not see, read, or hear). 20 Furthermore, if Plaintiff continued to purchase and flush Cottonelle Wipes after discovering 21 Defendants’ alleged fraudulent conduct in the course of having to unclog his toilet "approximately 22 once a week," AC ¶ 82; after finding "pieces" of the Cottonelle Wipes on the snake he sometimes 23 used, id. ¶¶ 83-84; or otherwise, Plaintiff’s claims have no merit at all. See Doe v. 24 Successfulmatch.com, 70 F. Supp. 3d 1066, 1082 (N.D. Cal. 2014) ("If Plaintiffs purchased or 25 continued to purchase Defendant's services after discovering Defendant's allegedly fraudulent 26 conduct, then Plaintiffs may have no claim under either the UCL or the CLRA. Thus, without any 27 allegation as to when Plaintiffs saw Defendant's representations, when Plaintiffs purchased 28 Defendant's services, and when Plaintiffs discovered Defendant's allegedly fraudulent conduct, 10 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page22 of 37 1 Defendant is unable to actually'defend against the charge and not just deny that [it has] done 2 anything wrong.’"). 3 In sum, without the essential allegations required under Rule 9(b), including the "who, what, 4 when, where, and how" of Kimberly-Clark’s purported misrepresentations and the date or dates on 5 which Plaintiff purchased the Cottonelle Wipes, when he used them, when he learned of the falsity 6 of the representations on the package, whether he continued to purchase the Cottonelle Wipes after 7 learning the alleged falsity of the package representations, neither the Court nor Kimberly-Clark can 8 assess the viability of Plaintiffs claims. Lacking such essential allegations, all of his claims (CLRA, 9 FAL, UCL, common law fraud and negligent misrepresentation claims) must be dismissed. 10 C. Plaintiff’s Misrepresentation Claims Must Be Dismissed Because Plaintiff Has Failed to Establish Falsity or That a Reasonable Consumer Would Be Deceived 11 By the Alleged Misrepresentations 12 Plaintiff has the burden of pleading facts establishing what is false or misleading about a 13 statement and why it is false. See, e.g., Decker v. GlenFed, Inc. (In re GlenFed, Inc. Sec. Litig.), 42 14 F.3d 1541, 1548 (9th Cir. 1994) (en banc), superseded by statute on other grounds in Ronconi v. 15 Larkin, 253 F.3d 423, 429 n.6 (9th Cir. 2001) ("[P]laintiff must set forth what is false or misleading 16 about a statement, and why it is false."); Bird v. First Alert, Inc., No. C 14-3585 PJH, 2015 U.S. 17 Dist. LEXIS 77209, at *31 (N.D. Cal. June 15, 2015) ("The FAC does not plead with particularity 18 why the alleged omissions were false or misleading, and thus fails to satisfy Rule 9(b)."); Lazar v. 19 Superior Court, 12 Cal. 4th 631, 638 (1996) (noting falsity is an element of common law fraud). 20 It is essential that the proffered meaning of an allegedly deceptive statement be reasonable. 21 See, e.g., Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1162 (9th Cir. 2012) ("A representation 22 does not become 'false and deceptive' merely because it will be unreasonably misunderstood by an 23 insignificant and unrepresentative segment of the class of persons to whom the representation is 24 addressed.") (quoting Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496, 507 (2003)); Kane, 25 2013 U.S. Dist. LEXIS 134385, at *24-25 ("Absent some factual allegation concerning what 26 Plaintiffs believed ECJ to be if not a form of sugar or a juice containing some form of sugar, 27 Plaintiffs' allegations that they read the label, were aware that the Yogurts contained ECJ, and 28 nevertheless concluded that the Yogurts contained'only natural sugars from milk and fruit and did 11 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page23 of 37 1 not contain added sugars or syrups’ is simply not plausible."); Carrea v. Dreyer's Grand Ice Cream, 2 Inc., No. C 10-01044 JSW, 2011 U.S. Dist. LEXIS 6371, at *17-18 (N.D. Cal. Jan. 10, 2011), aff’d 3 475 Fed. Appx. 113 (9th Cir. Apr. 5, 2012) ("[T]he Court determines that Plaintiff fails to establish a 4 claim under that UCL, FAL or CLRA that a reasonable consumer would likely be deceived into 5 believing that Drumsticks ice cream products are more wholesome or healthful than other frozen 6 dessert based on the alleged misrepresentations that those products are'Original’ and'Classic.’"). 7 Here, Plaintiff alleges to have relied on three representations on the package of the Cottonelle 8 Wipes he first purchased in 2010: (1) "flushable," (2) "SEWER AND SEPTIC SAFE," and 9 (3) "Cottonelle Fresh Care Flushable Cleaning Cloths break up after flushing." AC ¶ 76. Plaintiff 10 alleges that based on one or all of the foregoing representations, he expected the Cottonelle Wipes to 11 be no different than toilet paper in terms of the time it would take to "break apart after flushing," that 12 "the wipes would not cause clogs or backups in his plumbing or that the risk of this occurring was no 13 greater than if he had used toilet paper," and "the Cottonelle Wipes could travel safely from his 14 home drainline and into the city’s sewer system without causing clogs, blockages, or backups." Id. 15 ¶¶ 77, 78. As discussed in further detail below, Plaintiff has failed to state any viable false 16 advertising claim based on the packaging representations. 17 1. No Reasonable Person Would Be Deceived By the Package Representations as to the Time It Would Take to Break Apart After Flushing 18 If Plaintiff’s claims are based on allegations that Cottonelle Wipes "do not disperse quickly 19 like toilet paper can and do" or because they do not "break apart entirely into unrecognizable 20 particles within a minute or two of being flushing" or within any particular amount of time, AC ¶¶ 21 32, 44, 45, Plaintiff’s claims fail because they go beyond the plain language of the packaging relied 22 upon by Plaintiff and identified in Paragraph 76 of the amended complaint. Id. ¶ 76. As Plaintiff 23 admits, Cottonelle Wipes "begin to break down 35 minutes after flushing, and take hours to 24 completely disperse." Id. ¶ 57 (emphasis in original). Because Plaintiff does not dispute that 25 Cottonelle Wipes do disperse and "break apart" and has failed to identify any representation from 26 Defendants as to the time it would take to "break apart... into unrecognizable particles," Plaintiff 27 has failed to demonstrate that the representations alleged in Paragraph 76 is false on this basis. 28 12 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page24 of 37 1 Moreover, no reasonable consumer would understand any of the packaging representations 2 upon which Plaintiff claims to have relied to mean Cottonelle Wipes are "like toilet paper"3 or 3 constitute promises that they would disperse within any particular amount of time--not that any 4 consumer or Plaintiff would ever be able to independently confirm the time it takes for flushable 5 wipes to disperse without disassembling their own plumbing pipes or tracking the wipes down to the 6 wastewater treatment facility. In other words, claims based on an alleged expectation as to the time it 7 would take for Cottonelle Wipes to "break apart entirely into unrecognizable particles" is conclusory 8 and nothing more than an "unwarranted inference" insufficient to defeat a motion to dismiss. 9 2. None of the Representations Upon Which Plaintiff Claims to Have Relied Convey to a Reasonable Person the Frequency With Which One May Have to 10 Plunge Their Toilets 11 As every homeowner knows, plunging the toilet is a regular and expected household 12 occurrence, the frequency of which is dependent on numerous factors outside the control of 13 Defendants, including the materials that are flushed (hair, dental floss, toilet paper, feminine 14 products, etc.), the age of the plumbing fixtures and proper maintenance. Of course, the plunger and 15 the "snake" existed long before Defendants began selling Cottonelle Wipes and Plaintiff cannot 16 therefore credibly claim that he believed Cottonelle Wipes would never cause clogs. Because it is 17 common knowledge that even regular toilet paper risks clogging, Plaintiff thus accuses Defendants 18 of false advertising based on a theory that the representations upon which Plaintiff relied allegedly 19 conveyed to him an expectation that "the risk of [clogs by flushing Cottonelle Wipes] was no greater 20 than if he had used toilet paper." AC ¶ 77 (emphasis added). 21 As an initial matter, this claim cannot stand because Plaintiff’s own allegations contradict 22 and undermine the claim. Plaintiff asserts that the "moist lotion used in manufacturing the wipes 23 results in them traveling faster through sewer pipes than ordinary products." Id. ¶ 59. Plaintiff fails 24 to explain why the same "moist lotion" used in flushable wipes would not cause them to travel 25 3 As Plaintiff acknowledges, "all of the Flushable Wipes are sold as pre-moistened products, and 26 thus, the paper used to make them is designed to withstand months of soaking in a wet environment." AC ¶ 53. Plaintiff himself immediately noticed "that they were quite thick and 27 strong." Id. ¶ 79. Thus, based on Plaintiff’s own allegations and as his own experience confirms, no reasonable consumer would believe that Cottonelle Wipes are exactly like dry toilet paper. 28 13 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page25 of 37 1 equally "faster" through the household plumbing pipes, in which case the Cottonelle Wipes would 2 not clog plumbing pipes or at the very least, would not clog any more than regular toilet paper. 3 Moreover, no reasonable consumer would understand any of the packaging representations 4 set forth in Paragraph 76 to indicate the level of frequency with which one may expect to plunge 5 their toilets after flushing Cottonelle Wipes as compared to regular toilet paper. AC ¶ 77. Plaintiff’s 6 allegations that he purportedly observed that "sometimes," the snake he used to clear blockages 7 "would have pieces of" the Cottonelle Wipes, are vague (including as to the dates when he found 8 "pieces" of Cottonelle Wipes on the snake), conclusory, and ultimately insufficient. Id. ¶¶ 81-84. 9 "The plausibility standard [under Rule 8(a)] is not akin to a 'probability requirement,' but it asks for 10 more than a sheer possibility that a defendant has acted unlawfully. " Iqbal, 556 U.S. at 678. But 11 Paragraphs 81-84 support, at best, only a "sheer possibility" that Plaintiff’s alleged experiences with 12 having to occasionally plunge his toilet at unspecified times in 2010 to 2013 were all caused by the 13 flushing of Cottonelle Wipes, and are certainly deficient under Rule 9(b). Indeed, Plaintiff himself 14 admits that of the clogs he experienced "approximately once a week" he only "sometimes" observed 15 that "pieces" of the Cottonelle Wipes would be attached to a snake that he used for an unspecified 16 duration. See id. ¶¶ 81-84. 17 Insofar as Plaintiff’s claims are based on any alleged damage to household plumping pipes 18 caused by Cottonelle Wipes, Plaintiff has no standing because he does not claim that Cottonelle 19 Wipes damaged his household plumbing pipes. See id. ¶¶ 76-85. In other words, assuming a 20 reasonable consumer would understand any of the representations identified by Plaintiff as 21 indicating that the risk of damage to plumbing pipes posed by Cottonelle Wipes is no greater than 22 that posed by regular toilet paper, Plaintiff has simply failed to allege facts supporting an inference 23 that any such representation is false as to Plaintiff. Cf. Caro v. Procter & Gamble Co., 18 Cal. App. 24 4th 644, 664-65 (1993) (the plaintiff was not deceived into believing the defendant’s orange juice 25 was "fresh" because to the plaintiff, "fresh" meant that orange juice was "not altered, heated or 26 frozen" but he understood the orange juice purchased from the defendants to have been pasteurized). 27 Insofar as Plaintiff’s claims are based on allegations that Cottonelle Wipes are not "specially 28 designed to be suitable to flush in all instances," AC ¶ 33 (emphasis added) or flushable only 14 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page26 of 37 1 "under unique and specified circumstances," id., but not suitable for flushing in "certain toilets, 2 plumbing systems, and/or municipal wastewater systems," id. ¶ 33, the claim must fail because 3 Plaintiff fails to allege in what circumstances they are "suitable for flushing" and when they are not 4 so as to allow Kimberly-Clark to prepare a defense. Plaintiff also fails to allege which group he 5 belongs to so that this Court may assess whether he has standing to assert such a claim. 6 In sum, Plaintiff’s claim that any of the representations identified in Paragraph 76 are false or 7 misleading because Cottonelle Wipes clogged or damaged Plaintiff’s household plumbing pipes at 8 unknown times between sometime in 2010 to sometime in 2013 is contradicted by other allegations 9 and otherwise unsupported by any facts and should therefore be dismissed. 10 3. Plaintiff Fails to State a Claim Based on Alleged Damage Caused by Cottonelle Wipes to Septic Tank or System 11 Plaintiff admits that his "home plumbing is connected to the City of San Carlos’s sewer 12 system via a lateral drainline from his house." AC ¶ 78. Thus, if Plaintiff’s false advertising claim is 13 based on representations regarding the impact on septic systems and the alleged failure of Cottonelle 14 Wipes to "(2) fail to properly break down in septic tanks; [or] (3) damage septic pumps," see, e.g., 15 id. ¶ 1, Plaintiff has no standing to assert this claim because he admits he does not own a septic tank 16 or septic pump, much less that any septic tank or pump owned by Plaintiff was damaged by the 17 flushing of Cottonelle Wipes. See id. ¶¶ 76-85. See Kwikset Corp. v. Superior Court, 51 Cal. 4th 18 310, 322 (2011) (injury-of-fact or economic injury must be "the result of, i.e., caused by, the unfair 19 business practice or false advertising that is the gravamen of the claim"); In re Tobacco II Cases, 46 20 Cal. 4th 298, 326 (2009) (UCL and FAL require that "the misrepresentation was an immediate 21 cause" of the injury suffered); Cal. Civ. Code § 1780(a) (to state a claim under the CLRA, a person 22 must have suffered "damages as the result of" a violation of the statute). 23 4. Plaintiff Cannot State a Claim Based On Alleged Damage to City’s Sewer 24 System or to Municipalities or Wastewater Treatment Facilities Writ Large 25 Plaintiff’s false advertising claims are based, in part, on representations that Cottonelle 26 Wipes are "sewer... safe" and allegations that Cottonelle Wipes "(4) catch on screens in municipal 27 sewage lines and must be removed from the sewer system for disposal in landfills; and (5) damage 28 municipal sewage lines and pumps, often due to the proclivity of the wipes to tangle with each other, 15 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page27 of 37 1 tree branches, rocks, and other nonflushable items, and form large masses or ropes." See, e.g., AC 2 ¶¶ 1, 32, 76. However, Plaintiff has no standing because he is not a city or municipality and cannot 3 sue for damages suffered by municipalities or treatment facilities writ large. See Kwikset, 51 Cal. 4th 4 at 322; In re Tobacco II Cases, 46 Cal. 4th at 326 (UCL and FAL require that "the misrepresentation 5 was an immediate cause" of the injury to plaintiff); Cal. Civ. Code § 1780(a) (under the CLRA, a 6 person must have suffered "damages as the result of" a violation of the statute). 7 Moreover, Plaintiff fails to explain what he understood "sewer... safe" to mean or how or 8 why the representation "sewer... safe" is false, and has also failed to allege any facts to support an 9 inference that any of the representations identified in Paragraph 76 convey an understanding or 10 meaning to a prospective consumer as to what may or may not happen to flushable wipes at a 11 wastewater treatment facility after a consumer flushes the wipes down the toilet. See Davis, 691 F.3d 12 at 1162 (holding that it would defy common sense to expect that because a credit card offered a 13 rewards program but did not disclose an annual fee that might offset the cash value of any rewards, 14 the credit card must therefore have no associated costs of ownership because it is common 15 knowledge that there can be offsetting monthly interest charges, late-payment fees, and over-the-16 limit fees). Accordingly, Plaintiff’s claim that any of the representations he relied on are false based 17 on the impact of the Cottonelle Wipes he flushed on any city’s sewer system or wastewater treatment 18 facility is based on nothing more than conjecture, is conclusory, and insufficient to survive a motion 19 to dismiss. See Kane, 2013 U.S. Dist. LEXIS 134385, at *24-25 (in light of allegations suggesting 20 plaintiffs understood that dried can syrup was a form of sugar, the claim that plaintiffs concluded 21 "evaporated cane juice" to mean that there was no cane sugar or syrup was not plausible); Carrea, 22 2011 U.S. Dist. LEXIS 6371, at *17-18 (concluding that "statements on the Drumsticks packaging, 23 taken as a whole, [did] not suggest to a reasonable consumer that the product contains natural 24 ingredients or [were] otherwise more healthful than other ice cream products"). 25 The claim is also undermined by facts which contradict the inference Plaintiff asks the Court 26 to make. For example, some of the articles Plaintiff cites in the complaint contradict the allegation 27 that Cottonelle Wipes cause problems at municipal water treatment centers by noting that the 28 problems are caused by consumers who dispose of non-flushable wipes into the sewer systems. The 16 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page28 of 37 1 San Francisco Examiner article, for example, acknowledges that many consumers flush wipes that 2 are not meant to be flushed. AC ¶ 47, citing http://www.sfexaminer.com/sanfrancisco/flushable-3 wipes-cause-problematic-backups-at-local-sewage-plants/Content?oid=2514283 ("However, not all 4 wipes are flushable and we encourage consumers to read the package properly."). Plaintiff also 5 concedes that issues involving wipes at water treatment plants are caused by the wipes interacting 6 with other non-flushable items in the water treatment system, such as debris. Id. ¶¶ 32, 48. 7 In fact, a municipal sewer authority has issued an official statement that, after testing 8 Kimberly-Clark’s flushable wipes, the agency "was impressed by the amount of dispersibility, or 9 how quickly the Kimberly Clark products break apart, in relation to the other brands on the market" 10 and stated that "the Kimberly Clark Products are the only ones that pass this test, and the only ones I 11 would consider safe for municipal sewers." RJN Ex. 1. 12 Thus, aside from the fact that Plaintiff cannot assert a claim on behalf of cities and 13 municipalities and cannot demonstrate how any municipality is injured by damage caused 14 specifically by Cottonelle Wipes as opposed to other non-flushable wipes and items that end up at 15 the wastewater treatment facility, it is unreasonable to infer (and Plaintiff certainly has failed to 16 allege facts otherwise) that upon reading the package representations, a reasonable consumer draws 17 any conclusion as to what happens to Cottonelle Wipes in the sewers or at the wastewater treatment 18 facility after he/she has flushed the wipes down a toilet. 19 For any of the foregoing reasons, Plaintiff’s claims based on damage to sewers or wastewater 20 treatment facilities or municipalities allegedly caused specifically by Kimberly-Clark fail. See 21 Alamilla v. Hain Celestial Group, Inc., 30 F. Supp. 3d 943, 944 (N.D. Cal. 2014) (dismissing 22 complaint without leave to amend because the complaint incorporated by reference two articles that 23 contradicted plaintiff’s claim regarding the meaning of the term "pressurization"). 24 5. To the Extent Any Claims Are Based on the Industry Standards Kimberly-Clark Products Meet, the Claims Fail 25 Plaintiff’s claims, insofar as they are based on the "Guidance Document for Assessing the 26 Flushability of Nonwoven Disposable Products" published by the Association of the Nonwoven 27 Fabrics Industry ("INDA") (the "INDA Guidelines"), frankly, are unintelligible and incoherent. See 28 17 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page29 of 37 1 AC ¶¶ 52-64. It is unintelligible from Plaintiff’s complaint how the undisputed fact that Kimberly-2 Clark’s products satisfy the INDA Guidelines for flushability states a viable claim under any of the 3 asserted consumer protection statutes or for fraud or negligent misrepresentation. 4 A key flaw in Plaintiff’s "false advertising" claims, insofar as his claims are based on the 5 INDA Guidelines, is that none of the package representations identified by Plaintiff convey any 6 particular meaning regarding the flushability standard Kimberly-Clark products meet or any false 7 information with respect to the INDA Guidelines. As Plaintiff concedes, Kimberly-Clark products 8 meet the INDA Guidelines for "flushability." Aside from the incredible claim that Plaintiff had any 9 expectation with respect to the INDA Guidelines when purchasing Cottonelle Wipes, or even still 10 more incredible claim that he believes the INDA Guidelines are somehow flawed, no claim for false 11 advertising, fraud, or negligent misrepresentation claim is stated based on the INDA Guidelines. 12 In sum, all of Plaintiff’s fraud-based claims, based on nothing more than naked conclusory 13 assertions of "falsity," must fail. See In re iPhone 4S Consumer Litig., No. C 12-1127 CW, 2014 14 U.S. Dist. LEXIS 19363, at *22-23 (N.D. Cal. Feb. 14, 2014) (dismissing fraud-based claims for 15 where "Plaintiffs [did] not elaborate on the meaning of the term'on a consistent basis’ anywhere in 16 their complaint or their argument. Apple and the Court [were] left to guess whether Plaintiffs 17 expected Siri to operate without fail, or more often than not, or at any other level below 18 perfection."); Iqbal, 556 U.S. at 681 ("It is the conclusory nature of respondent's allegations, rather 19 than their extravagantly fanciful nature, that disentitles them to the presumption of truth."). 20 D. Plaintiff Cannot State a Claim Based on California Plumbing Code § 305.1 21 Plaintiff makes reference to California Plumbing Code § 305.1, but Plumbing Code § 305.1 22 is inapplicable. See, e.g., AC ¶¶ 1, 43, 138(c). As an initial matter, Plaintiff does not, because he 23 cannot, allege that Defendants violated California Plumbing Code § 305.1; thus, Plumbing Code 24 § 305.1 does not provide any basis for a claim under the unlawful prong of the UCL which is 25 directed at the conduct engaged in by a defendant. See Cal. Bus. & Prof. Code § 17203 ("Any 26 person who engages, has engaged, or proposes to engage in unfair competition may be enjoined in 27 any court of competent jurisdiction.") (emphases added.) 28 Moreover, the Plumbing Code, part of California’s comprehensive Building Standards Code, 18 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page30 of 37 1 is generally applicable to the "construction, alteration, improvement, repair, or rehabilitation of a 2 building." See Cal. Health & Safety Code § 18909(a) ("Building standard" means "any rule, 3 regulation, order, or other requirement... that specifically regulates, requires, or forbids the method 4 of use, properties, performance, or types of materials used in the construction, alteration, 5 improvement, repair, or rehabilitation of a building, structure, factory-built housing, or other 6 improvement to real property, including fixtures therein, and as determined by the commission.") 7 (emphasis added); id. §§ 18935-18944.18; see also Cal. Bldg. Standards Comm’n, available at 8 http://www.bsc.ca.gov/Home.aspx (last visited August 24, 2015) (stating "The California Building 9 Standards Code, Title 24 [of which the California Plumbing Code is one part] serves as the basis for 10 the design and construction of buildings in California.") (emphasis added.)4 Because Plaintiff’s 11 claims do not concern the "construction, alteration, improvement, repair, or rehabilitation of a 12 building... or other improvement to real property," the Plumbing Code has no applicability here. 13 E. Plaintiff Cannot Otherwise State a Claim Based on Alleged Omissions 14 Plaintiff cannot state a claim under the CLRA, FAL, UCL or common law fraud5 based upon 15 an alleged omission of fact unless the omission is "contrary to a representation actually made by the 16 defendant, or an omission of a fact the defendant was obliged to disclose." Daugherty v. Am. Honda 17 Motor Co., Inc., 144 Cal. App. 4th 824, 835 (2006) (dismissing claims related to fraudulent omission 18 arising under the CLRA, FAL and UCL); Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1141 (9th 19 Cir. 2012) (holding that "California federal courts have generally interpreted Daugherty as holding 20 that'[a] manufacturer’s duty to consumers is limited to its warranty obligations absent either an 21 affirmative misrepresentation or a safety issue’"); Lovejoy v. AT&T Corp., 92 Cal. App. 4th 85, 96 22 (2001) (noting that fraud by omission requires a showing that "defendant must have been under a 23 duty to disclose the [omitted] fact to the plaintiff"). 4 24 The California Building Standards Code is available on the Commission’s website at http://www.bsc.ca.gov/Home/Current2013Codes.aspx. (last visited August 24, 2015). Although the 25 Plumbing Code is accessible via the Commission’s website, the document cannot be printed as it is encrypted with a "read only" security setting. 5 26 A cause of action for negligent misrepresentation "requires a positive assertion." Vega v. Jones, Day, Reavis & Pogue, 121 Cal. App. 4th 282, 291 (2004). "An'implied’ assertion or representation 27 is not enough." Wilson v. Century 21 Great Western Realty, 15 Cal. App. 4th 298, 306 (1993). Thus, Plaintiff’s cause of action for negligent misrepresentation cannot be based upon an "omission." 28 19 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page31 of 37 1 As set forth in Section IV.C above, because Plaintiff has failed to adequately allege how or 2 why any of the package representations are false, Defendants are likewise unable to address what 3 "contrary" information Plaintiff is claiming should have been disclosed by Defendants so as to not 4 render the representations misleading or false. It is fundamental that to be able to state a claim for an 5 actionable omission based on "a representation actually made by the defendant," the plaintiff must 6 demonstrate how the representation is rendered false in the absence of the undisclosed information. 7 See Williamson v. Apple, Inc., No. 5:11-cv-00377 EJD, 2012 U.S. Dist. LEXIS 125368, at *18-20 8 (N.D. Cal. Sept. 4, 2012) (holding that allegations that Apple failed to disclose that normal use of the 9 iPhone 4 would result in cracked glass housing or that normal wear and tear could render the device 10 inoperable were not actionable omissions because "[t]he problem with these allegations is that they 11 do not constitute actionable omissions when construed with the representations actually attributed to 12 Apple. No where in the FAC is Apple alleged to have stated that the iPhone 4 was resistant to 13 normal wear and tear, that the glass housing would never break or crack under normal use, or that 14 the phone might not be damaged if it was dropped. As already pointed out, phone-dropping is not 15 alleged to have been depicted anywhere in the marketing material. The alleged omissions, then, are 16 not contrary to any of Apple's actual representations."). Because Plaintiff has failed to satisfy his 17 pleading burden with respect to any omission claim based on a theory that any omission was 18 contrary to a representation relied upon by Plaintiff, the claim must be dismissed. 19 In LiMandri v. Judkins, 52 Cal. App. 4th 326, 336 (1997), the court held that a duty to 20 disclose may exist if the defendant (1) "is in a fiduciary relationship with the plaintiff;" (2) "had 21 exclusive knowledge of material facts not known to the plaintiff;" (3) "actively conceal[ed] a 22 material fact from the plaintiff;" or (4) "ma[de] partial representations but also suppresse[d] some 23 material facts." Although LiMandri did not concern the UCL, FAL, or CLRA, to the extent a duty to 24 disclose under these statutes can be based on factors espoused in LiMandri,6 Plaintiff has failed to 6 25 As noted by Courts in this Circuit, the California Courts of Appeal appear to be split on whether the factors outlined in Limandri v. Judkins, 52 Cal. App. 4th 326 (1997), a fraudulent concealment 26 case, properly apply to UCL and CLRA omission claims outside of cases in which safety issues or warranty issues are implicated. Compare Collins v. eMachines, Inc., 202 Cal. App. 4th 249 (2011), 27 with Buller v. Sutter Health, 160 Cal. App. 4th 981, 988 n.3 (2008) ("respectfully disagree[ing]" with the application of the Judkins factors to UCL and CLRA omission claims to the extent that they 28 20 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page32 of 37 1 allege the existence of any fiduciary duty for the first factor to apply; and for the reasons noted 2 above, has failed to establish the existence of a duty to disclose under the fourth LiMandri factor. 3 With regard to the second and third LiMandri factors, Plaintiff has failed to allege that 4 Kimberly-Clark had "exclusive knowledge of" or "actively concealed" any material information 5 (though what, in fact, was material to Plaintiff is entirely unclear) unknown to Plaintiff at the time of 6 Plaintiff’s purchase(s). But even assuming the truth of Plaintiff’s allegations regarding the effect of 7 Kimberly-Clark’s products on consumers or municipalities (which Defendants dispute), Plaintiff 8 cannot credibly claim that Defendants had exclusive knowledge or actively concealed information 9 regarding the impact of flushing Kimberly-Clark’s Products on third-parties, such as consumers or 10 municipalities. Ferranti v. Hewlett-Packard Co., No. No. 5:13-CV-03847-EJD, 2014 U.S. Dist. 11 LEXIS 131249, at *15 (N.D. Cal. Sept. 16, 2014) ("Moreover, Plaintiffs do not allege with 12 particularity how HP had exclusive knowledge of material facts not known to Mr. Martinho when 13 the complaint alleges that there were consumer complaints posted on HP Support Forums and poor 14 reviews on other websites."); Donohue v. Apple, Inc., 871 F. Supp. 2d 913, 927 (N.D. Cal. 2012) 15 ("In order to give rise to a duty to disclose, a complaint must contain specific allegations 16 demonstrating the manufacturer's [exclusive] knowledge of the alleged defect at the time of sale."). 17 In sum, Plaintiff has failed to state a claim that Defendants were obligated to disclose an 18 omitted material fact on the ground that it was "contrary to a representation actually made by the 19 defendant" or that Defendants had any duty to otherwise disclose any material information. 20 V. IN THE ALTERNATIVE, THIS ACTION SHOULD BE STAYED PENDING THE APPEAL OF THE RELATED CASE, DAVIDSON v. KIMBERLY-CLARK 21 As an alternative to dismissing all of the claims and/or striking the specified paragraphs, 22 Kimberly-Clark moves to stay this action pending the resolution of the related action, Davidson v. 23 Kimberly-Clark, et al., 9th Cir. Case No. 15-16173, which is on appeal to the Ninth Circuit. It is well 24 established that "the power to stay proceedings is incidental to the power inherent in every court to 25 26 compel a duty to disclose the defendant’s prompt-pay discount policy). See Successfulmatch.com, 70 F. Supp. 3d at 1076-77 (noting disagreement). Assuming, for purposes of Defendants’ Motion, that 27 the LiMandri factors apply to Plaintiff’s omission claims under common law and under the CLRA, FAL, and UCL, the claims still fail as discussed herein. 28 21 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page33 of 37 1 control the disposition of the causes on its docket with economy of time and effort for itself, for 2 counsel, and for litigants." Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). In evaluating whether to 3 stay an action, Courts consider the competing interests of "[1] the possible damage which may result 4 from the granting of a stay, [2] the hardship or inequity which a party may suffer in being required to 5 go forward, and [3] the orderly course of justice measured in terms of the simplifying or 6 complicating of issues, proof, and questions of law which could be expected to result from a stay." 7 CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962) (citing Landis, 299 U.S. at 254-55). The 8 Landis factors favor granting a stay of this action pending the Ninth Circuit’s decision in Davidson. 9 A. A Stay of this Action Pending the Ninth Circuit’s Decision in Davidson Will Further the "Orderly Course of Justice" 10 A stay may be the most efficient and fairest course when there are "independent proceedings 11 which bear upon the case." Bickley v. Schneider Nat’l Carriers, Inc., No. 08-05806-JSW, 2013 U.S. 12 Dist. LEXIS 8636, at *3 (N.D. Cal. Jan. 22, 2013) (quoting Leyva v. Certified Grocers of California, 13 Ltd., 593 F.2d 857, 863 (9th Cir. 1979)). While staying an action is appropriate when the resolution 14 of another matter will have a direct impact on the issues before the Court, "[t]his rule... does not 15 require that the issues in such proceeding are necessarily controlling of the action before the court." 16 Mediterranean Enters., Inc. v. Ssangyong Corp., 708 F.2d 1458, 1465 (9th Cir. 1983). 17 Indeed, numerous courts have exercised their sound discretion to stay an action where 18 independent proceedings will provide considerable guidance in resolving similar claims. See, e.g., 19 Gustavson v. Mars, Inc., No. 13-cv-04537-LHK, 2014 U.S. Dist. LEXIS 171736, at *3-6 (N.D. Cal. 20 Dec. 10, 2014) (staying federal action pending the Ninth Circuit’s decision in a separate proceeding 21 against a different manufacturer because while the parties disagreed as to the degree of overlap, 22 guidance from the Ninth Circuit would be material to any class certification decision in the case); 23 Bay Area Surgical Group, Inc. v. Aetna Life Ins. Co., No. 13-cv-05430-EJD, 2014 U.S. Dist. LEXIS 24 83152, at *19-24 (N.D. Cal. June 17, 2014) (staying federal action in favor of a consolidated state 25 court proceeding because although "not mirror images of each other," there was "complete identity 26 of the first-string players for each side," and there were "also important factual and legal similarities 27 between the instant action and the state case even though the actual causes of action at issue [were] 28 22 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page34 of 37 1 distinct"); San Diego Padres Baseball P’ship v. United States, No. 99-cv-0828-W, 2000 U.S. Dist. 2 LEXIS 10987, at *5 (S.D. Cal. July 13, 2000) (interests of judicial economy strongly favored a stay 3 pending the Ninth Circuit’s determination in an independent proceeding because despite some 4 factual differences, the Ninth Circuit’s decision would either have binding precedential value or at a 5 minimum would "almost certainly provide substantial guidance"). 6 Davidson and the instant action are essentially the same. It would be disingenuous for 7 Plaintiff to contend otherwise. Although Appellant Davidson’s opening brief is not due until at least 8 September 21, 2015, according to her mediation questionnaire, Appellant Davidson is apparently 9 appealing: (1) this Court’s ruling which she characterizes as "requiring her to plead with specificity 10'how she came to learn’ that the wipes were not flushable and to plead harm from product use even 11 though the Court found that economic loss was adequately pled," (2) this Court’s dismissal of her 12 claims for injunctive relief, and (3) this Court’s denial of leave to amend. RJN, Ex. 2. The Ninth 13 Circuit’s ruling on the first two identified issues, whether viewed as addressing the proper pleading 14 standard in federal court and/or on Article III/statutory standing, is likely to be precedential or at a 15 minimum, will provide substantial guidance to this Court as to the very same issues present in this 16 case. Thus, this factor weights in favor of a stay. See San Diego Padres, 2000 U.S. Dist. LEXIS 17 10987, at *5 (holding that interests of judicial economy strongly favored a stay pending the Ninth 18 Circuit’s determination in an independent proceeding because "[a]t minimum, the Ninth Circuit's 19 decision will resolve at least one of the two central, if not only, issues presented in this case."). 20 B. The Relative Hardship or Inequity to the Parties Weigh in Favor of a Stay 21 Although it is unclear what hardship Plaintiff Jonah will claim he will suffer as a result of a 22 stay, to the extent he will argue that a stay will delay any recovery of monetary damages or 23 injunctive relief, it is well-settled that the mere delay in monetary recovery is an insufficient basis to 24 deny a stay. See CMAX, Inc. v. Hall, 300 F.2d 265, 268-69 (9th Cir. 1962) (delay in obtaining 25 monetary relief was insufficient to show CMAX would suffer irreparable damage and a miscarriage 26 of justice by granting stay). Although Plaintiff Jonah seeks injunctive relief, his request for 27 injunctive relief fails to "strengthen [his] position in any measurable sense." See Bay Area Surgical 28 Group, Inc., 2014 U.S. Dist. LEXIS 83152, at *25-26 (the "injunction is just another method of 23 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page35 of 37 1 recouping monetary damages, and there is no indication that Plaintiffs will be harmed irreparably 2 during a pause in these proceedings."). Moreover, Plaintiff’s claim for injunctive relief is completely 3 baseless as he admits he has not purchased Cottonelle wipes since 2013 and does not intend to 4 purchase any wipes of the same "design and construction of the Flushable Wipes." In short, neither a 5 delay in the recovery of monetary relief or Plaintiff’s meritless claim for injunctive relief requires 6 wasting this Court’s or the parties’ resources pending a ruling by the Ninth Circuit in Davidson. 7 Given that this action was filed ostensibly for the purpose of causing duplicative litigation and 8 inconsistent rulings contrary to the purposes of Landis, Plaintiff should not be heard to complain if 9 this Court were to exercise its discretion and stay this action under Landis. 10 Although the burden of simultaneous litigation is generally not considered to be sufficient 11 evidence of prejudice to the moving party, when, as here, "the opponent does not adduce evidence 12 that it will be harmed by a stay... courts have considered the moving party's burden in litigating the 13 case to be a legitimate form of hardship." Bay Area Surgical Group, Inc., 2014 U.S. Dist. LEXIS 14 83152, at *27-28 (quoting In re Am. Apparel Shareholder Derivative Litig., No. CV 10-06576 15 MMM (RCX), 2012 U.S. Dist. LEXIS 146970, at *158-59 (C.D. Cal. July 31, 2012)); Lamar Co., 16 LLC v. Continental Cas. Co., No. CV-05-320-AAM, 2007 U.S. Dist. LEXIS 101670, *9-10 (E.D. 17 Wash. Jan. 8, 2007) (where there was no "fair possibility" that the non-moving party would be 18 harmed, "it [was] not necessary... to demonstrate a'clear case of hardship or inequity’"); Liberty 19 Surplus Ins. Corp. v. IMR Contrs. Corp., No. CV 08-5773 JSW, 2009 U.S. Dist. LEXIS 37580, at 20 *12 (N.D. Cal. Apr. 14, 2009) ("As already discussed, Sree has shown that Liberty will not incur any 21 cognizable damage from a stay. Therefore, Sree's burden to prove hardship is lessened."). 22 Although Kimberly-Clark is not required to demonstrate a "clear case of hardship or 23 inequity" under the circumstances of this case, the inequity and hardship that would result to 24 Kimberly-Clark if the case is not stayed are evident. In Davidson, this Court dismissed all of the 25 same claims asserted in this action and denied a motion for reconsideration filed by Davidson.7 In 7 26 See Davidson v. Kimberly-Clark Corp., No. 14-1783 PJH, 2014 U.S. Dist. LEXIS 110055 (N.D. Cal. Aug. 8, 2014); Davidson v. Kimberly-Clark Corp., 2014 U.S. Dist. LEXIS 176394 (N.D. Cal. 27 Dec. 19, 2014); Davidson v. Kimberly-Clark Corp., 2015 U.S. Dist. LEXIS 64168 (N.D. Cal. May 15, 2015). 28 24 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document27 Filed09/02/15 Page36 of 37 1 light of the prior rulings, which are being appealed, what matter may be relevant or reasonably 2 calculated to lead to the discovery of admissible evidence is in serious question, with the result that 3 discovery is likely to be inefficient for both parties. The uncertainty that the appeal of Davidson 4 brings will likely require greater judicial oversight with respect to discovery disputes and increased 5 litigation costs for both parties. Moreover, if the parties proceed to discovery under the current 6 circumstances, they may be proceeding on issues that may be rendered moot by the Ninth Circuit’s 7 decision in Davidson. Accordingly, though not required, Kimberly-Clark has shown hardship with 8 respect to what could be inefficient or unnecessary discovery. See Gong-Chun v. Aetna, Inc., No. 09-9 cv-01995-AWI-SKO, 2010 U.S. Dist. LEXIS 56938, at *11-13 (E.D. Cal. May 15, 2010) 10 ("Although going forward with discovery does not create or impose inequity, Defendant has made 11 out a clear case of hardship as to conducting what could be inefficient or pointless discovery."). 12 In addition to hardship, given that Kimberly-Clark has already litigated the issues in this 13 case, it would be inequitable for Kimberly-Clark to have to litigate what is essentially the same case 14 while the appeal in the prior Davidson action is pending. In due course, the issues and claims 15 Plaintiff Jonah asserts in this action will be resolved through the appellate process in Davidson. It 16 would be inequitable for Kimberly-Clark to have to re-litigate the same case again simply because 17 Plaintiff’s counsel prefers filing duplicative actions to awaiting the outcome of the appeal in an 18 action they previously litigated. In sum, the relative hardship and inequity to the Parties weigh in 19 favor of granting a stay pending the Ninth Circuit’s decision in Davidson. 20 CONCLUSION 21 For the foregoing reasons, Defendants respectfully request that their motion be granted. 22 Dated: September 2, 2015 SIDLEY AUSTIN LLP 23 By:/s/Amy P. Lally 24 Amy P. Lally Attorneys for Defendants 25 Kimberly-Clark Corporation; Kimberly-Clark Global Sales, LLC; and Kimberly-Clark 26 Worldwide, Inc. 27 28 25 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE, OR, ALTERNATIVELY, TO STAY; MEMO. OF PTS. AND AUTH. IN SUPPORT THEREOF 209866535v.1 CASE NO. 15-CV-03243-PJH