The opinion of the court was delivered by: John A. Houston United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS [DOC. # 6]
Pending before the Court is the motion of defendant Clorox Company ("defendant") to dismiss the instant complaint for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The motion has been fully briefed by the parties. After a careful consideration of the pleadings presented and for the reasons set forth below, this Court GRANTS IN PART and DENIES IN PART defendant's motion.
Plaintiff Shawndee Hartless ("plaintiff") alleges she purchased defendant's product "Clorox Automatic Toilet Bowl Cleaner With Bleach" (the "Product") from stores in San Diego beginning in November 2004 and used the product according to the instructions on the Product's packaging, believing it to be safe. Compl. ¶¶ 21-23. Plaintiff alleges that Clorox represents the Product does not harm plumbing when, in fact, defendant knew it could cause damage. Id. ¶¶ 10-13. Plaintiff claims the Product she purchased caused the rubber flapper inside her toilet tank to become warped and deteriorated to the extent that plaintiff was required to replace the part. Id. ¶¶ 24-25.
On December 13, 2006, plaintiff filed the instant class action complaint alleging causes of action for (1) violation of the Consumer Legal Remedies Act ("CLRA"), California Civil Code § 1750 et seq. (Count I); (2) breach of the implied warranty of merchantability (Count II); and (3) violation of California's Unfair Competition Law ("UCL"), California Business & Professions Code § 17200 et seq. (Count III). See id. ¶¶ 42-62. Defendant filed its motion to dismiss on March 19, 2007. Plaintiff filed an opposition to the motion on May 3, 2007 and defendant filed a reply on May 10, 2007. This Court subsequently took the motion under submission without oral argument. See CivLR 7.1(d.1).
Defendant moves to dismiss the instant complaint for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
A motion to dismiss pursuant to Rule12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Fed.R.Civ.P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). A court may dismiss a complaint for failure to state a claim when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Navarro, 250 F.3d at 732 (citing Conley); see also Haddock v. Board of Dental Examiners, 777 F.2d 462, 464 (9th Cir.1985) (stating that a court should not dismiss a complaint if it states a claim under any legal theory, even if plaintiff erroneously relies on a different theory). Generally, dismissal is proper only when the plaintiff has failed to assert a cognizable legal theory or failed to allege sufficient facts under a cognizable legal theory. See SmileCare Dental Group v. Delta Dental Plan of Cal., Inc., 88 F.3d 780, 782 (9th Cir. 1996); Balisteri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). While a plaintiff need not give "detailed factual allegations," he must plead sufficient facts that, if true, "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007).
The court must assume the truth of all factual allegations and must construe all inferences from them in the light most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003); Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
In deciding a motion to dismiss for failure to state a claim, the court's review is limited to the contents of the complaint. Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996); Allarcom Pay Television, Ltd. v. General Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). The court may consider the facts alleged in the complaint, documents attached to the complaint, documents relied upon but not attached to the complaint when authenticity is not contested, and matters of which the court takes judicial notice. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).
Defendant moves to dismiss: (a) plaintiff's claim for breach of implied warranty of merchantability; (b) plaintiff's UCL claim and her restitution claim under the UCL; and (c) plaintiff's claim for violation of the CLRA.
a. Implied Warranty of Merchantability
Defendant first moves to dismiss plaintiff's breach of implied warranty of merchantability claim because plaintiff fails to allege privity as required.*fn1 Defendant contends that vertical privity of contract is required to state a claim for breach of implied warranty. See Mot. at 4 (citing U.S. Roofing, Inc. v. Credit Alliance Corp., 228 Cal.App.3d 1431, 1441 (1991)). Defendant claims vertical privity is lacking here and no recognized exception to the privity rule exists. Id. at 4-5. Defendant argues that the lack of privity or exception to the privity rule requires dismissal of plaintiff's claim with prejudice. Id. at 6. Plaintiff contends, in opposition, that this case fits within an exception to the privity rule. Opp. at 16 (citing Collum v. Pope & Talbot, 135 Cal.App.2d 653, 657 (1955); In re HP Inkjet Printer Litig., 2006 WL 563048 *6 (N.D.Cal. Mar. 7, 2006); Atkinson v. Elk Corp. of Texas, 152 Cal.App.4th 212, 229 (2006); Seeley v. White Motor Co., 63 Cal.2d 9, 15 (1965)). According to plaintiff, an exception to the privity rule exists where there is reliance upon a manufacturer's warranty representation in its labels or advertising materials. Id. Plaintiff claims this case fits that exception. Id.
In reply, defendant argues that the exception upon which plaintiff rests applies only to claims for breach of express warranty. Reply at 1-2. After a careful review of the case authority cited, this Court agrees with defendant. Two of the cases cited by plaintiff explicitly limited the manufacturer's warranty exception to express warranty claims. See Collum, 135 Cal.App.2d at 657 (the manufacturer's warranty exception allows "recovery from the manufacturer ... on the theory of express warranty without a showing of privity."); Seeley, 63 Cal.2d at 14 (the manufacturer's warranty exception to the privity rule "is applicable only to express warranties. ..."). Although the HP Injet Printer court found no privity requirement for an implied warranty claim under the manufacturers' warranty exception, the court contradictorily supported its finding by citing to a California appellate decision explicitly limiting the exception to express warranty claims. See In re HP Injet Printer Litig., 2006 WL 563048 at *6 (citing Fieldstone Co. v. Briggs Plumbing Prods., Inc., 54 Cal.App.4th 357, 369, 371 (1997)). The Atkinson case provides no support for plaintiff's contention because the court merely indicated, in dicta, that the privity requirement might be relaxed if the dismissed implied warranty claim were brought alongside a related express warranty claim. Id., 142 Cal.App.4th at 232. Thus, this Court finds none of the case authority cited by plaintiff supports her theory. This Court's own independent research has also failed to unearth any support for plaintiff's contention. Therefore, this Court finds plaintiff's reliance upon the manufacturer's warranty exception to avoid dismissal based on lack of privity is unavailing. Accordingly, plaintiff's claim for breach of implied warranty of merchantability must be dismissed pursuant to Rule 12(b)(6) for failure to allege privity.