Sebastian v. Kimberly-Clark Corp.

BRITTANY SEBASTIAN, individually, on behalf of herself andother similarly situated; ASHLEY LYNNE POPOWITZ, individually, onbehalf of herself and others similarly situated, Plaintiffs, v. KIMBERLY-CLARK CORPORATION; KIMBERLY-CLARK WORLDWIDE, INC.;KIMBERLY-CLARK GLOBAL SALES, LLC, Defendants.

CASE NO. 17cv442-WQH-JMA

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

December 18, 2017

ORDER

HAYES, Judge:

The matter before the Court is the motion to dismiss the first amended complaint, or in the alternative, the motion to stay the case, filed by Kimberly-Clark Corp., Kimberly-Clark Worldwide, Inc., and Kimberly-Clark Global Sales, LLC. (ECF No. 14)

I. BACKGROUND

On March 3, 2017, Plaintiffs Brittany Sebastian and Ashley Lynne Popowitz commenced this action by filing a complaint. (ECF No. 1). On March 29, 2017, Plaintiffs filed the first amended complaint ("FAC"). (ECF No. 8). Plaintiffs assert the following causes of action against Kimberly-Clark Corporation, Kimberly-Clark Worldwide, Inc., and Kimberly-Clark Global Sales, LLC (hereinafter, "Defendant"): (1) violation of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code §§ 17200, et seq.; (2) violation of California's False Advertising Laws ("FAL"), Cal. Bus. & Prof. Code §§ 17500, et seq.; (3) violation of California's Consumer Legal Remedies Act ("CLRA"), Cal. Civ. Code §§ 1750, et seq.; (4) violation of the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"), FLA. STAT. §§ 501.201, et seq.; (5) breach of express warranty; and (6) quasi-contract. (ECF No. 8 at 1).

On April 28, 2017, Defendant filed a motion to dismiss the FAC and a request for judicial notice. (ECF Nos. 14, 15). On May 16, 2017, Plaintiffs filed a response in opposition. (ECF No. 17). On May 23, 2017, Defendant filed a reply. (ECF No. 18).

II. ALLEGATIONS OF THE COMPLAINT

Defendant "manufactures, markets, promotes, advertises, and sells baby-care products, including [products] under the 'Huggies Natural Care' brand name." (ECF No. 8 at ¶ 12). "This case arises out of Defendant's unlawful merchandising practices with respect to its Huggies Natural Care Baby Wipes, which are offered for sale in numerous configurations," including the following: (1) "soft packages containing 32 or 56 wipes," (2) "'pop-up tubs' containing 40 or 64 wipes," (3) "'Clutch n' Clean' packages," and (4) "refill packages containing numerous wipes."¹ Id. at ¶ 1. The huggies.com website provides that "the Products are 'America's #1 branded baby wipe,' and are comprised of 'gentle ingredients' for 'sensitive skin.'" Id.

Defendant "advertises the Products as being '[h]ypoallergenic, fragrance and alcohol free, with a touch of aloe and Vitamin E," providing that the wipes "feature [] [Defendant's] simplest formula ever for a gentle clean.'" Id. at ¶ 14. "On the packaging of the Products, Defendant represents the Products as being natural, both by the prominent representation 'Natural Care' and by the Products' various packaging designs, which include nature images, such as green coloring and leaves." Id. at ¶ 15.

Plaintiff Sebastian "purchased a soft package of Huggies Natural Care wipes,containing 32 wipes, from a Target store in Encinitas, California between August and November, 2016 for approximately $1.47." Id. at ¶ 35. Plaintiff Popowitz "purchased multiple soft packages of Huggies Natural Care wipes from Publix and Costco locations in Broward County, Florida" for personal and family use. Id. at ¶ 36. On or about October 2016, she purchased a 56-count package. Id.

"Despite advertising the Products as being 'natural,' 'gentle,' 'hypoallergenic" and made with a 'simple formula,' the wipes actually contain non-natural, synthetic, and/or artificial ingredients, including phenoxyethanol, caprylyl glycol, cocamidopropyl betaine, and sodium citrate." Id. at ¶ 16. "According to the FDA, phenoxyethanol is a preservative, which can depress the central nervous system and may cause vomiting and diarrhea in infants." Id. at ¶ 17. "The Material Safety Data Sheet (MSDS) on phenoxyethanol states that it can cause skin and lung irritation, and that it may also be toxic . . . ." Id. at ¶ 20. "[A] report from the French Agence Nationale de Securite du Medicament et des Produits de Sante cautioned consumers not to use wipes containing phenoxyethanol on children under the age of three because of health concerns related to 'reproductive and developmental toxicity.'" Id. at ¶ 19. "According to Hazard Notifications from the Globally Harmonized System of Classification and Labeling of Chemicals (GHS), phenoxyethanol presents a category 2 danger for skin irritation, a category 4 danger for acute oral toxicity if swallowed, and a category 2A danger for causing serious eye damage or eye irritation." Id. at ¶ 21.

Caprylyl glycol is a non-natural, "synthetic skin conditioning agent and preservative." Id. at ¶ 23. "Cocamindopropyl betaine is a synthetic surfactant that has been associated with skin irritation and dermatitis." Id. at ¶ 24. "Sodium citrate is recognized in Federal Regulations as a synthetic, and is a "chemical that can be used as an emulsifier, acidity regulator, and preservative." Id. at ¶ 25.

"[R]easonable consumers, including Plaintiffs, expect a product that is labeled or advertised as being 'natural' to be free of synthetic, highly processed, and/or non-natural ingredients." Id. at ¶ 30. "[R]easonable consumers . . . expect . . . baby careproducts that are labeled or advertised as being 'natural,' 'gentle' and 'hypoallergenic' to be free from harmful and/or potentially toxic ingredients." Id. at ¶ 31.

"[B]ecause the Products contain phenoxyethanol, caprylyl glycol, cocamidopropyl betaine, and sodium citrate, they are mislabeled, misleading, and misbranded." Id. at ¶ 26. Defendant "materially misled and failed to adequately inform consumers . . . that the Products contain non-natural, synthetic ingredients." Id. at ¶ 33.

Plaintiffs relied on Defendant's "representations in making the decisions to purchase the Products, including [the representation] that the Product is 'natural.'" Id. at ¶ 37. At the time of purchase, Plaintiffs "did not know, and had no reason to know, that the Product labels and advertising were misleading, deceptive, and unlawful. . . ." Id. at ¶ 38. Plaintiffs "would not have purchased the Products, or would have purchased the same on different terms, if they had known the truth." Id. "It is possible, however, that Plaintiffs would purchase the Products in the future if the Products were properly labeled, and/or the ingredients complied with the labeling and advertising statements, including that they only contained 'natural' ingredients, and no longer contained phenoxyethanol, caprylyl glycol, and cocamidopropyl betaine, and sodium citrate." Id. at ¶ 39.

Plaintiffs bring this action as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2) and 23(b)(3) on behalf of themselves, on behalf of all other similarly situated, and define three classes. Id. at ¶ 40. Plaintiffs bring their UCL, FAL, and CLRA claims for the California subclass, the FDUTPA claim for the Florida subclass, and the breach of express warranty and quasi-contract claims for the California subclass, Florida subclass and the nationwide class. Id. at 14-23.

III. REQUEST FOR JUDICIAL NOTICE

When ruling on a 12(b)(6) motion, "as a general rule, a district court may not consider any material beyond the pleadings." Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). However, there are exceptions to this general rule that allow a court to consider extrinsic evidence without converting a 12(b)(6) motion to one ofsummary judgment. Id. Under the doctrine of incorporation by reference, "[a] district court ruling on a motion to dismiss may consider documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the plaintiff's pleadings." Parrino v. FHP, Inc., 146 F.3d 699, 705 (9th Cir. 1998) (internal quotation marks omitted). The "incorporation by reference" doctrine has been extended "to situations in which the plaintiff's claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint." Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005).

Defendant requests the Court take judicial notice of the following five documents: (1) a page from the Huggies website that both describes and displays photos of the Huggies Natural Care Baby Wipes in Exhibit A, (2) a page from the Kimberly-Clark website that lists the ingredients to the various brands of Huggies wipes, including an assortment of Huggies Natural Care Wipes in Exhibit B, (3) a notice letter from Plaintiffs' council alleging violations of California's Consumers Legal Remedies Act ("CLRA") in Exhibit C, (4) a page from the Food and Drug Administration (FDA) website regarding the FDA's use of the term "hypoallergenic" in Exhibit D, and (5) a page from a website titled The Dermatologist that reviewed allergen's of the year from 2000 to 2015, including cocamindopropyl betaine in Exhibit E. (ECF No. 15-1).

With respect to Exhibit C, the CLRA notice letter, Plaintiffs reference the letter in the Complaint. See ECF No. 8 at ¶ 93. Plaintiffs have not filed any opposition to the request for judicial notice or disputed the authenticity of this letter. The Court takes judicial notice of Exhibit C pursuant to the doctrine of incorporation by reference. See, e.g., Won Kyung Hwang v. Ohso Clean, Inc., No. C-12-06355 JCS, 2013 WL 1632697, at *2 n.2 (N.D. Cal. Apr. 16, 2013) (taking judicial notice of a CLRA notice letter under the incorporation by reference doctrine). The Court denies Defendant's request for judicial notice as to the remaining exhibits as unnecessary to the resolution...