Connie Chong v. Nestle Waters North America ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CONNIE CHONG, individually and on No. 20-56373
behalf of all similarly situated,
D.C. No.
Appellant, 2:19-CV-10901-DMG-KS
v.
MEMORANDUM*
NESTLÉ WATER NORTH AMERICA,
INC.; DOES 1 through 10,
Appellees.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Submitted October 20, 2021**
Pasadena, California
Before: CALLAHAN and FORREST, Circuit Judges, and AMON,*** District
Judge.
Connie Chong, individually and on behalf of all others similarly situated,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Carol Bagley Amon, United States District Judge for
the Eastern District of New York, sitting by designation.
appeals the district court’s order dismissing her statutory claims, which alleged that
Nestlé Waters North America (“Nestlé”) violated various California consumer
protection laws in connection with its labeling of Arrowhead Brand water, for
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The district
court also dismissed Chong’s purported standalone claim of unjust enrichment. We
have jurisdiction under 28 U.S.C. § 1291. Reviewing the district court’s dismissal
de novo, Curtis v. Irwin Indus., Inc., 913 F.3d 1146, 1151 (9th Cir. 2019), we
affirm.
1. Chong argues that the district court erred in dismissing her claims under
California’s Unfair Competition Law (“UCL”), False and Misleading Advertising
Law (“FAL”), and the California Legal Remedies Act (“CLRA”) by finding that a
“reasonable consumer” would not be misled by the Arrowhead labels. Under the
“reasonable consumer” standard, plaintiffs must demonstrate that “members of the
public are likely to be deceived,” which “requires more than a mere possibility that
[a] label ‘might conceivably be misunderstood by some few consumers viewing it
in an unreasonable manner.’” Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir.
2016) (first quoting Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir.
2008); and then quoting Lavie v. Procter & Gamble Co., 129 Cal. Rptr. 2d 486,
495 (Ct. App. 2003)).
In sum, Chong argues that the district court did not properly credit her
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allegation that she believed the mountain printed on the front of the Arrowhead
label to be “Arrowhead Mountain,” and on the basis of that belief, determined that
“NESTLÉ Product was [sourced exclusively] from the springs in the arrowhead
mountain.” We reject Chong’s argument. The district court properly accepted as
true that Chong believed that the mountain on the front of the labels was
“Arrowhead Mountain,” but upon reviewing the labels submitted for judicial notice
by Nestlé, determined that there was not “any indication that the image of the
mountain and lake refer to any specific mountain or lake, but rather to the true
statement that Arrowhead Water is comprised entirely of mountain spring water.”
The court was correct to find that this case “presents the rare case where this Court
may conclude on the pleadings that no reasonable consumer would be misled by
any of the product labels at issue in this suit.”
2. Chong also argued that Nestlé violated the UCL by virtue of “bare
technical violation[s]” of state and federal law, which can serve as predicate
offenses under the UCL’s “unlawful” conduct prong. This, too, is unpersuasive.
The district court properly found that Chong had not sufficiently alleged any
violations of state or federal law that could serve as predicate violations under the
UCL “unlawful” conduct prong.
3. Finally, the district court was correct to dismiss Chong’s unjust
enrichment claim. Even assuming she did not waive this claim, it fails on the
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merits. Restitution under an unjust enrichment theory is only required if “it is
unjust” for the benefiting party to retain that benefit. Ghirardo v. Antonioli, 924
P.2d 996, 1003 (Cal. 1996) (quoting Restatement of Restitution § 1 cmt. C (Am. L.
Inst. 1937)). Chong has not alleged a violation of the UCL, FAL, or CLRA, and
has not otherwise pointed to any reason why it would be “unjust” for Nestlé to
retain any proceeds from the sale of Arrowhead Water. As a result, her unjust
enrichment claim was properly dismissed.
AFFIRMED.
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