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Title: Meryl Overton v. Bird Brain

March 15, 2012


The opinion of the court was delivered by: The Honorable David O. Carter, Judge





Julie Barrera Not Present Courtroom Clerk Court Reporter


Before the Court is Defendant Bird Brain, Inc's ("Bird Brain") Motion to Dismiss (Docket 12) ("Motion to Dismiss"). The Court finds this matter appropriate for decision without oral argument. Fed.R.Civ. P. 78; Local Rule 7-15. After considering the moving, opposing, and replying papers, the Court hereby GRANTS IN PART AND DENIES IN PART the Motion to Dismiss and DENIES the Motion to Strike.


Defendant Bird Brain, Inc. ("Defendant") manufactures and sells "Firepot Fuel Gel" ("Fuel Gel"), a pourable gel fuel used with firepots and other decorative lighting devices. First Amended Complaint ("FAC"), ¶ 1. Plaintiff alleges that Fuel Gel burns with an almost invisible flame, such that if a user pours more Fuel Gel into a seemingly empty firepot, the Fuel Gel in the bottle can suddenly ignite to result in a "vapor flash fire." Id. at ¶ 2-3, 16-18. These vapor flash fires are alleged to result in serious bodily injury, including third degree burns, or even death. Id. at ¶ 4.

Plaintiff avers that Defendant has full knowledge of the potential for vapor flash fires and corresponding potential for injury and yet has failed to provide warnings on Fuel Gel labels. Id. at ¶ 5, 19-20. For example, Plaintiff notes that the Safety Data Sheet for Fuel Gel explicitly states that it "burns with almost invisible flame." Id. at ¶ 21. Further, Defendant is also a defendant in two lawsuits arising out of personal injuries that resulted from Fuel Gel. Id. at ¶ 24-25. Plaintiff goes on to detail injuries caused by similar gel fuel products, consumer complaints on, an investigation into Fuel Gel by the Illinois Attorney General, and a New York law banning substances such as Fuel Gel. Id. at ¶ 26-38. Based on all of this evidence, Plaintiff contends that Defendant knew of Fuel Gel's potential to cause serious injury. Id. at ¶ 5, 19-20.

Plaintiff alleges that Defendant has failed to disclose the true danger of Fuel Gel by failing to disclose its potential for vapor flash fires on the product packaging. Plaintiff also alleges that Defendant has misrepresented the safety of Fuel Gel in a recent "Message to Customers" that stated, "Fuel Gel products are safe, with an exemplary track record built over years of consumer experience nationwide." Id. at ¶ 40-42. Although Defendant has issued a limited recall of Fuel Gel, Plaintiff contends that such recall was inadequate because the recall is only limited to certain members of the class, offers illusory benefits, does not provide the disclosures demanded by Plaintiff, and does not provide for a permanent cessation of the sale of Fuel Gel. Id. at ¶ 6.

Plaintiff alleges that since 2008, Defendant has sold more than 1.5 million Fuel Gel units, retailing for $24.99 each. Id. at ¶ 53. Plaintiff avers that, had she and the putative class members known that "Fuel Gel was dangerously explosive and can suddenly erupt into 'vapor flash fire' upon refueling of a decorative lighting device, they never would have purchased [Fuel Gel]." Id. at ¶ 54. Plaintiff asserts claims under the Consumer Legal Remedies Act ("CLRA"), California's Unfair Competition Law ("UCL"), California Business and Professions Code § 17500, False Advertising Law ("FAL"), and unjust enrichment.


Under Federal Rule of Civil Procedure 12(b)(6), a complaint must be dismissed when a plaintiff's allegations fail to state a claim upon which relief can be granted. Dismissal for failure to state a claim does not require the appearance, beyond a doubt, that the plaintiff can prove "no set of facts" in support of its claim that would entitle it to relief. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1968 (2007) (abrogating Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99 (1957)). In order for a complaint to survive a 12(b)(6) motion, it must state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009). A claim for relief is facially plausible when the plaintiff pleads enough facts, taken as true, to allow a court to draw a reasonable inference that the defendant is liable for the alleged conduct. Id. at 1949. If the facts only allow a court to draw a reasonable inference that the defendant is possibly liable, then the complaint must be dismissed. Id. Mere legal conclusions are not to be accepted as true and do not establish a plausible claim for relief. Id. at 1950.Determining whether a complaint states a plausible claim for relief will be a context-specific task requiring the court to draw on its judicial experience and common sense. Id.

In evaluating a 12(b)(6) motion, review is "limited to the contents of the complaint." Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994). However, exhibits attached to the complaint, as well as matters of public record, may be considered in determining whether dismissal was proper without converting the motion to one for summary judgment. See Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). Further, a court may consider documents "on which the complaint 'necessarily relies' if: (1) the complaint refers to the document; (2) the document is central to the plaintiff's claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion." Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). "The Court may treat such a document as 'part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6)." Id.

The Federal Rule of Civil Procedure 9(b) states that "[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally." Fed. R. Civ. P. 9(b). "Rule 9(b) ensures that allegations of fraud are specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong." Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985). Providing detailed notice to defendants also prevents plaintiffs from filing complaints "as a ...

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