(San Francisco City & County Super. Ct. No. CGC-09487547) Hon. Richard A. Kramer
The opinion of the court was delivered by: Richman, J.
CERTIFIED FOR PUBLICATION
Plaintiff Ayana Hill bought bottles of Fiji water, on the label of which was a green drop--a drop, she claimed, that represented Fiji bottled water was environmentally superior to other waters and endorsed by an environmental organization. Alleging that it was not, Hill filed a proposed class action on behalf of herself and other consumers of Fiji bottled water, naming Roll International Corporation (Roll) and Fiji Water Company LLC (Fiji Water), asserting violations of California's Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq.), False Advertising Law (FAL) (§ 17500 et seq.), and Consumers Legal Remedies Act (CLRA) (Civ. Code, § 1750 et seq.), plus common law fraud and unjust enrichment.*fn1 The trial court ruled that Hill's amended complaint failed to state a cause of action (Code Civ. Proc., § 430.10, subd. (e)), denied further leave to amend, and dismissed the complaint. We affirm.
Hill's complaint alleges that consumers have become increasingly aware of, and sensitive to, the impact of their purchases on the environment, spawning an environmental "movement" that demands products that are "environmentally superior" to like products in their manufacturing, packaging, and distribution processes. The term "green" (oddly capitalized throughout the complaint) is commonly used to describe such products and the movement that demands them. Companies designate their products as green through written representations and visual images--"such as a green raindropor pictures of the Earth"--and consumers who see such representations on products are led to believe that those products are "environmentally superior" when compared to products that lack such designations.
Companies motivated by increased profits have made deceptive, misleading, and false representations, a practice known as "greenwashing" (again, capitalized) that "has become so rampant" that the Federal Trade Commission (FTC) has issued standards known as " 'Green Guides.' "
Hill further alleges that defendants*fn2 have allegedly violated several provisions of those standards by misrepresenting their product as environmentally superior to those of their competitorswhen, in fact, the processes used for Fiji bottled water "cause as much, if not more, environmental damage" as their competitors.*fn3 Defendants "accomplish this deception," first, through conspicuous placement of a " 'Green Drop' seal of approval label on the front of the product" that "looks similar to environmental 'seals of approval' . . . by several independent, third-party organizations." This connotes approval by such organizations when, in fact, the green drop is created by defendants themselves, for "touting their own product." Further, in their packaging and marketing, defendants have "called their product FijiGreen" and, in stores and other public places, "stated that 'Every Drop is Green.' " And, Hill alleges, "This Green Drop is deceptive because it conveys that the product is environmentally sound and superior to other bottled waters that do not contain the Green Drop. Furthermore, the Green Drop looks similar to environmental 'seals of approval' conveyed by several independent, third-party organizations, thereby further misleading consumers to believe that the Green Drop is a seal of approval from an independent third party."
Hill's pleading includes photographic images. One shows the front label of a bottle that bears a circumscribed green drop; another shows four back labels, each with the green drop symbol adjacent to an indicated Internet website, "fijigreen.com"; and a third seems to show a store display featuring two of the green drop symbols, and "Every drop is green" between them. A full page of illustrations provided by Hill (and appended to this opinion) shows the green drop--not circumscribed--next to allegedly "independent" seals designating lack of testing on animals or compliance with unstated environmental standards, plus symbols for recyclable products and Earth Day.
Hill's personal allegations are that, starting in 2008, she bought Fiji water about twice a week from Walgreens stores in San Francisco, relying on representations that the product was "environmentally friendly and superior." She paid a price about 15 percent higher than other bottled water, and would not have bought Fiji water "had she known the truth that the Green Drop was the creation of [defendants], not a neutral party or environmental group, and that Fiji bottled [w]ater was not environmentally friendly or superior to similar bottle[d] water available at cheaper prices."
On review of a demurrer sustained without leave to amend, "[t]he reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.]" (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) "[I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]" (Id. at p. 967.)
A court generally confines itself to the pleading but, as appropriate, may extend its consideration to matters subject to judicial notice. (Smiley v. Citibank (1995) 11 Cal.4th 138, 146.) "[W]hen the allegations of the complaint contradict or are inconsistent with such facts, we accept the latter and reject the former. [Citations.]" (Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1040.) We give the same precedence to facts evident from exhibits attached to the pleading. (Breneric Associates v. City of Del Mar (1998) 69 Cal.App.4th 166, 180; Dodd v. Citizens Bank of Costa Mesa (1990) 222 Cal.App.3d 1624, 1626-1627.) Efforts to show reasoning errors are beside the point. " 'Our only task in reviewing a ruling on a demurrer is to determine whether the complaint states a cause of action.' " (People ex rel. Lundgren v. Superior Court (1996) 14 Cal.4th 294, 300; Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) We do that independently (Smiley v. Citibank, supra, 11 Cal.4th at p. 146), regardless of reasons stated by the trial court. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 111.)
Our Division has stated, in resolving an appeal based on the reasonable-consumer standard following a bench trial, that "[t]he standard to be used in evaluating whether an advertisement is deceptive under the UCL is purely a question of law." (Lavie v. Proctor & Gamble Co. (2003) 105 Cal.App.4th 496, 503.) Other courts have stated that whether a business practice is fraudulent, deceptive, or unfair is generally a question of fact requiring the consideration and weighing of evidence, and usually cannot be decided on demurrer. (Linear Technology Corp. v. Applied Materials, Inc. (2007) 152 Cal.App.4th 115, 134-135; McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1472; Williams v. Gerber Products Co. (9th Cir. 2008) 552 F.3d 934, 938-939.) This is not an irreconcilable conflict: generally and usually do not mean invariably, and a demurrer must be sustained when the assumed facts show lack of a valid claim. (See e.g., McKenney, supra, 167 Cal.App.4th at p. 77.) And this is the case here, as we hold that, taking ...