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Poole v. Benjamin Moore Co., Inc.

United States District Court, W.D. Washington, Tacoma

June 6, 2018

WHITNEY POOLE, et al., Plaintiffs,



         THIS MATTER is before the Court on Defendant Benjamin Moore's Motion to Dismiss [Dkt. # 19]. Plaintiff Poole claims Benjamin Moore misrepresented the environmentally friendly or “green” features of its “Natura” paint, promising (in advertising and on the can itself) that it was “emission free” and contained “Zero V.O.C.s.” The FTC investigated and in a 2017 draft complaint concluded that those claims were not true. Benjamin Moore has since voluntarily (but perhaps temporarily, depending on the final outcome of the FTC investigation) changed its advertising.

         Poole paid a premium for Natura over other Benjamin Moore paints. She asserts on her own behalf and as the representative of a putative class claims for breach of express warranty, violations of the Magnuson Moss Warranty Act, violations of multiple states' Consumer Protection Acts, and unjust enrichment. She seeks damages resulting from the misrepresentations.

         Benjamin Moore moves to dismiss. It argues that Poole has not alleged that she saw or was aware of its “green promise” before she purchased, or that she relied on any representations in purchasing; it speculates that her attorneys told her about the statements after she purchased. It claims that these failures are “fatal” to her Washington (UCC) and Magnuson Moss warranty claims. It also argues these claims fail as a matter of law because Poole cannot establish privity of contract with Benjamin Moore; she (like any consumer) purchased through an independent dealer. And it claims her “inability” to allege she even saw the representations at issue, or that they influenced her purchase decision, is fatal to her CPA claims. Finally, Benjamin Moore argues that because Poole has pled (defectively, it claims) a breach of contract claim, she cannot maintain a quasi-contractual unjust enrichment claim.

         A. Fed.R.Civ.P. 12(b)(6) Standard.

         Dismissal under Fed.R.Civ.P. 12(b)(6) may be based on either the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff's complaint must allege facts to state a claim for relief that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim has “facial plausibility” when the party seeking relief “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Although the court must accept as true the Complaint's well-pled facts, conclusory allegations of law and unwarranted inferences will not defeat an otherwise proper 12(b)(6) motion to dismiss. Vazquez v. Los Angeles Cty., 487 F.3d 1246, 1249 (9th Cir. 2007); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and footnotes omitted). This requires a plaintiff to plead “more than an unadorned, the-defendant-unlawfully-harmed-me-accusation.” Iqbal, 556 U.S. at 678 (citing Twombly).

         On a 12(b)(6) motion, “a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Cook, Perkiss & Liehe v. N. Cal. Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990). However, where the facts are not in dispute, and the sole issue is whether there is liability as a matter of substantive law, the court may deny leave to amend. Albrecht v. Lund, 845 F.2d 193, 195-96 (9th Cir. 1988).

         In short, a defective claim that cannot be fixed should be dismissed with prejudice and without leave to amend. But if the claim could be made plausible by alleging additional facts, the pleader should be permitted to amend her complaint in lieu of dismissal. Dismissal without prejudice (the outcome Benjamin Moore seeks here) is rarely warranted.

         B. Breach of Warranty Claims.

         Benjamin Moore argues that Poole has not alleged that she was in contractual privity with Benjamin Moore-like all consumers she purchased from an independent dealer, not from Benjamin Moore-and without privity, she cannot plausibly assert a UCC or MMA warranty claim. It is of course true that a lack of privity has historically been a defense to breach of warranty claims. See Tex Enters., Inc. v. Brockway Standard, Inc., 149 Wash.2d 204, 209 (2003). But as Benjamin Moore acknowledges, this requirement is “relaxed” where the manufacturer makes express representations and the purchaser is aware of them at the time of purchase.

         Poole's complaint is replete with examples of Benjamin Moore's express representations about Natura's environmentally-friendly properties, including the “Green Promise” made right on the label. She argues persuasively that there is no “knowledge [or awareness] requirement for breach of a clearly labeled express warranty.” See Baughn v. Honda Motor Co., 107 Wash.2d 127, 151 (1986); In re Myford Touch Consumer Litig., 2015 WL 5118308 (N.D. Cal., August 31, 2015).

         Poole also argues that even if she was required to allege she was aware of the warranty, she has adequately done so: she pled that she was “deceived by” the statements made in the Green Promise, and it necessarily follows that the statements could not deceive her if she was not aware of them. In any event, though she does not need to, Poole clearly could amend her complaint to remedy the “defect” upon which Benjamin Moore relies. The claimed defect, then, would lead to not dismissal, but to amendment. This is an evidentiary challenge, not a pleading one. The motion to dismiss Poole's warranty claims for lack of awareness of the warranty is DENIED.

         Benjamin Moore similarly claims that Poole has not plausibly pled that its Green Promise was a “basis of the bargain.” The gist of this claim is that despite its advertising, website and label representations, Poole does not (and cannot) allege ...

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