Linda Hawkins v. UGI Corporation et al, No. 2:2014cv08461 - Document 73 (C.D. Cal. 2016)
Court Description: ORDER GRANTING DEFENDANTS MOTIONS TO DISMISS SECOND AMENDED COMPLAINT 61 , 62 . The Second Amended Complaint is DISMISSED, with prejudice by Judge Dean D. Pregerson. (MD JS-6. Case Terminated) (lc)
Download PDF
<![CDATA[
Linda Hawkins v. UGI Corporation et al Doc. 73 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 LINDA HAWKINS, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMULARLY SITUATED, 13 14 15 16 17 18 19 20 21 22 23 Plaintiff, v. UGI CORPORATION; AMERIGAS PROPANE, INC.; AMERIGAS PROPANE, L.P.; AMERIGAS PARTNERS, L.P., doing business as AMERIGAS CYLINDER EXCHANGE; FERRELLGAS COMPANY, INC.; FERRELLGAS, L.P., doing business as BLUE RHINO LLC; FERRELLGAS, INC..; FERRELLGAS PARTNERS FINANCE CORP.; FERRELLGAS FINANCE CORP., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 14-08461 DDP (JCx) ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS SECOND AMENDED COMPLAINT [Dkt. 61, 64] 24 Presently before the court are two separate, but similar, 25 motions to dismiss filed by Defendants UGI Corporation, Amerigas 26 Propane, Inc., Amerigas Propane, L.P., Americas Partners, L.P. 27 (collectively, “Amerigas”) and Ferrellgas, L.P., Ferrellgas 28 Dockets.Justia.com 1 Partners, L.P., Ferrellgas, Inc., Ferrellgas Partners Finance 2 Corp., and Ferrellgas Finance Corp. (collectively, “Ferrellgas”). 3 Having considered the submissions of the parties and heard oral 4 argument, the court grants the motions to dismiss the Second 5 Amended Complaint (“SAC”) and adopts the following order. 6 I. 7 Background Amerigas and Ferrellgas (collectively, “Defendants”) sell pre- 8 filled propane cylinders to the public at locations such as 9 hardware stores, supermarkets, and gas stations.1 (SAC ¶¶ 13-14, 10 28.) 11 “empty” propane cylinders and pick up pre-filled cylinders. 12 ¶¶ 28, 32.) 13 exchange, their cylinders at refill stations, although Plaintiffs 14 allege that such stations are no longer readily available in most 15 metropolitan areas. Defendants operate cages that allow consumers to drop off (Id. Alternatively, consumers may refill, rather than (Id. ¶¶ 29-30.) 16 Plaintiffs allege, on behalf of a putative class, that 17 Defendants fill propane cylinders with fifteen pounds of propane, 18 even though standard steel propane cylinders can hold over 19 seventeen pounds. 20 Defendants’ pre-filled propane cylinders bear labels identifying 21 the “net weight” of the cylinders as fifteen pounds. 22 The SAC also alleges that Defendants’ cages and other marketing 23 materials instruct consumers to drop “empty” tanks near the cages 24 before obtaining a pre-filled tank from inside the cage. 25 32, 36.) (SAC ¶ 20.) Plaintiffs further allege that (Id. ¶ 28.) (Id. ¶¶ 26 27 1 28 The SAC alleges that the retail stores “may simply have been acting as Defendants’ agents . . . .” (SAC ¶ 28 n.1.) 2 1 Plaintiffs further allege that Defendants’ propane cylinders 2 are not capable of being truly emptied, and that at the time 3 propane-fueled appliances cease to ignite, the cylinders remain, on 4 average, ten percent full. 5 they did not know that they might not be able to extract the 6 entirety of the fifteen pounds of propane purchased, or that 7 factors such as outside air temperature might affect their ability 8 to extract propane from Defendants’ tanks. 9 Defendants allegedly know that the cylinders cannot be emptied, but (SAC ¶ 38.) Plaintiffs allege that (Id. ¶¶ 5, 7.) 10 do not inform consumers of that fact. 11 Defendants can easily implement a point-of-exchange weighing system 12 that would inform consumers how much propane remains in an “empty” 13 tank, but choose not to because Defendants benefit by continually 14 reselling the unused ten percent that remains when consumers drop 15 off “empty” tanks, and Defendants choose not to utilize more 16 efficient delivery technologies so as to continue enjoying that 17 benefit. 18 Plaintiffs allege that (Id. ¶¶ 33, 38-39.) Defendants now move to dismiss all twelve causes of action 19 alleged in the SAC.2 20 II. 21 Legal Standard A complaint will survive a motion to dismiss when it contains 22 “sufficient factual matter, accepted as true, to state a claim to 23 relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 24 25 26 27 28 2 Plaintiffs appear to have filed a total of three oppositions to the two motions. Docket Entries 66 and 68 appear to be identical oppositions to Amerigas’ motion, even though certain pages identify themselves as part of the opposition to the Ferrellgas motion. Docket Entry 67 is an opposition to the Ferrellgas motion, although the table of authorities therein does not appear to correspond to either of Plaintiffs’ memoranda. 3 1 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 2 570 (2007)). 3 “accept as true all allegations of material fact and must construe 4 those facts in the light most favorable to the plaintiff.” 5 v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). 6 need not include “detailed factual allegations,” it must offer 7 “more than an unadorned, the-defendant-unlawfully-harmed-me 8 accusation.” 9 allegations that are no more than a statement of a legal conclusion When considering a Rule 12(b)(6) motion, a court must Iqbal, 556 U.S. at 678. Resnick Although a complaint Conclusory allegations or 10 “are not entitled to the assumption of truth.” Id. at 679. 11 other words, a pleading that merely offers “labels and 12 conclusions,” a “formulaic recitation of the elements,” or “naked 13 assertions” will not be sufficient to state a claim upon which 14 relief can be granted. 15 quotation marks omitted). 16 In Id. at 678 (citations and internal “When there are well-pleaded factual allegations, a court should 17 assume their veracity and then determine whether they plausibly 18 give rise to an entitlement of relief.” Id. at 679. 19 must allege “plausible grounds to infer” that their claims rise 20 “above the speculative level.” Twombly, 550 U.S. at 555. 21 “Determining whether a complaint states a plausible claim for 22 relief” is a “context-specific task that requires the reviewing 23 court to draw on its judicial experience and common sense.” 24 556 U.S. at 679. 25 III. Discussion Plaintiffs 26 A. 27 In granting Defendants’ motions to dismiss an earlier 28 Procedural History and New Allegations iteration of the SAC, this court found Plaintiffs’ claims 4 Iqbal, 1 implausible. Specifically, the court found that, given Defendants’ 2 up-front, explicit, and undisputedly accurate representation that 3 Defendants’ propane cylinders contain fifteen pounds of propane, 4 Plaintiffs could not plausibly allege that consumers were misled as 5 to the amount of propane within the cylinders. 6 The court was not persuaded by Plaintiffs’ emphasis on usable 7 quantities of propane, as Defendants never made any representation 8 regarding usability or accessibility, and consumers generally know 9 that they may not be able to separate every bit of a product from (Dkt. 54 at 5.) 10 its packaging. 11 13-477 JVS, 2013 WL 9760035 (C.D. Cal. Sept. 11, 2013)). 12 court also determined that instructions to consumers to drop 13 “empty” tanks off outside Defendants’ cages could not plausibly be 14 interpreted as a representation by Defendants that a consumer would 15 be able, contrary to the laws of physics, to utilize every molecule 16 of propane contained within a newly-purchased tank. 17 6.) 18 (Dkt. 54 at 5 (citing Ebner v. Fresh Inc., No. SACV This (Dkt. 54 at The allegations of the SAC are not materially different from 19 Plaintiffs’ earlier allegations. 20 allegations about Plaintiffs’ subjective state of mind at the time 21 of purchase, including a lack of awareness that they would not be 22 able to use all of the propane they purchased. 23 acknowledges that the average amount of propane remaining in a 24 spent cylinder will vary as a result of environmental factors, it 25 also alleges that this fact is not generally known to consumers, 26 and that consumers have no way to “observe” the amount of propane 27 left in a spent tank. The SAC does now include (SAC ¶¶ 31, 45 n. 2.) 28 5 Although the SAC 1 The bulk of the new allegations, however, concern Defendants’ 2 business practices. Plaintiffs allege, for example, that 3 Defendants have pared back their refilling, as opposed to cylinder 4 exchange, operations. 5 could install a “weighing scale or gage [sic] that would tell the 6 consumers how much propane is left in the ‘empty’ tanks they are 7 exchanging.” 8 could utilize new technology to improve the cylinders themselves to 9 allow more complete discharge of propane, or could inform consumers Plaintiffs further allege that Defendants (SAC ¶ 33.) The SAC also now alleges that Defendants 10 that spent tanks do still contain some propane. 11 (SAC ¶¶ 37, 39, 41.) 12 B. Plausibility of Fraud-Based Claims 13 As an initial matter, Plaintiffs’ new allegations do little to 14 bolster the plausibility of the previously-dismissed, 15 misrepresentation-based claims. 16 that Defendants’ cylinders accurately state, as they must, the net 17 weight of the propane contained therein. 18 material allegations regarding Defendants’ “empty” cylinder drop- 19 off instructions. 20 appears only in the context of instructing consumers how to 21 complete a tank exchange. 22 would interpret instructions regarding what to do with the propane 23 tank in his possession, which may or may not retain sufficient gas 24 pressure to dispense propane, as a representation that he would be 25 able to utilize every last ounce, or any particular percentage, of 26 the new, pre-filled tank he intended to purchase. 27 28 The SAC continues to acknowledge The SAC contains no new As this court explained, the word “empty” It remains implausible that a consumer Further, and as explained by this court by reference to toothpaste, peanut butter, shampoo, and many other products, the 6 1 general consumer is generally aware that she may not be able to 2 extract every bit of a product from its packaging. 3 reasoning underpinned the court’s decision in Ebner v. Fresh Inc., 4 No. SACV 13-477 JVS, 2013 WL 9760035 (C.D. Cal. Sept. 11, 2013), 5 which dismissed claims relating to accurately labeled, difficult to 6 extract lip balm, and was recently affirmed by the Ninth Circuit. 7 See Ebner v. Fresh, Inc., – F.3d –, 2016 WL 1056088 (9th Cir. Mar. 8 17, 2016). 9 understands the “general mechanics” of a lip balm dispenser tube, 10 and that “[a]lthough the consumer may not know precisely how much 11 product remains, the consumers’ knowledge that some additional 12 product lies below the tube’s opening is sufficient to dispel any 13 deception . . . .” 14 The same The Ninth Circuit held that a reasonable consumer Ebner, – F.3d – at *6. Plaintiffs attempt to distinguish the Ninth Circuit’s holding 15 in Ebner by arguing that, unlike consumers of lip balm, they have 16 no way to see that any propane is left in an opaque steel cylinder, 17 have no choice but to return partially full cylinders to 18 Defendants, and cannot extract any propane that does remain. 19 arguments are not persuasive. 20 that consumers of propane have no choice but to yield unused, re- 21 sellable propane to Defendants. 22 propane refilling stations “are not readily available at all in 23 most metropolitan areas,” that vague allegation flies in the face 24 of common sense and experience. 25 supposed benefit of unusable propane can opt to refill their 26 cylinders rather than exchange them at Defendants’ cages. 27 even if there were no refilling options available, consumers, like 28 those in Ebner, can determine whether or not any product remains. These First, it simply is not the case Although the SAC does allege that Consumers who prefer to retain any 7 Second, 1 Granted, consumers of propane cannot see the amount of product 2 remaining, any more than can purchasers of shaving cream, 3 hairspray, whipped cream, certain sunscreens, and many other 4 products. 5 contents does not, however, prevent a consumer from determining 6 whether some product remains. 7 liquid form, and does not evaporate to gaseous form until exposed 8 to normal temperatures and pressures. 9 do not understand the “general mechanics” of pressurized That inability to visually inspect a propane cylinder’s Propane is stored in cylinders in Even assuming that consumers 10 containers, a consumer can determine whether product remains by 11 audibly sloshing remaining liquid around in the cylinder, or by 12 feeling the heft of a partially full cylinder. 13 desire a more accurate determination can simply weigh a cylinder on 14 a standard bathroom or other scale and subtract the tare weight of 15 the cylinder. 16 observe the level of product remaining in a cylinder, and as in 17 Ebner, Plaintiffs here cannot plausibly allege that Defendants’ 18 admittedly accurate net weight labels or “empty” tank drop-off 19 instructions are fraudulent, deceptive, or misleading.3 Those consumers who Thus, regardless of consumers’ inability to visually 4 20 3 21 22 23 24 25 26 27 Even if Plaintiffs’ claims were plausible, claims based upon net weight labeling or cylinder design would be subject to California’s safe harbor doctrine, which bars claims predicated upon conduct affirmatively permitted by statute. Ebner, – F.3d – at *3 (citing Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163 (1999)). Federal regulations expressly permit the steel tank design utilized by Defendants. 49 C.F.R. § 178.51. California law mandates that Defendants label the cylinders’ net weight of propane. 4 C.C.R. § 4051(f). This is not to say, and, contrary to Plaintiffs’ characterization, Defendants do not argue, that the safe harbor doctrine immunizes Defendants from any and all possible claims under the CLRA, FAL, or UCL. 4 28 Plaintiffs have not adequately alleged claims based upon an (continued...) 8 1 C. Unfair Business Practices 2 Plaintiffs contend that, even if their fraud-based claims 3 fail, they have adequately pleaded a claim for unfair competition 4 under California Business & Professions Code § 17200, which 5 proscribes “unfair” acts as well as unlawful or fraudulent ones. 6 See Cel-Tech, 20 Cal.4th at 180. 7 centers on Defendants’ alleged “withholding from Plaintiffs . . . 8 credits earned for unused propane . . . 9 withholding leftover propane and reutilizing it for their own 10 11 profits . . . .” Plaintiff’s “unfair prong” claim and practice of (SAC ¶ 72.) California courts have applied differing tests in determining 12 whether a business practice is “unfair.” 13 Inc., – F.Supp.3d –, 2016 WL 627383 at * 7 (N.D. Cal. Feb. 17, 14 2016); Davis v. Ford Motor Credit Co., 179 Cal. App. 4th 581, 593- 15 97 (2009). 16 business practice unfair if the practice “offends an established 17 public policy or when the practice is immoral, unethical, 18 oppressive, unscrupulous, or substantially injurious to consumers.” 19 Hodsdon, – F.Supp.3d at * 7 (quoting S. Bay Chevrolet v. Gen. 20 Motors Acceptance Corp., 72 Cal. App. 4th 861, 886-87 (1999) 21 (internal quotation marks omitted). 22 impact on the alleged victim, the reasons and justifications for 23 the practice, and the motives of the alleged wrongdoer, “the court 24 must weight the utility of the defendant’s conduct against the See Hodsdon v. Mars, One common, relatively less burdensome test finds a Looking to the practice’s 25 26 4 27 28 (...continued) omission. Under California law, manufacturers only bear a duty to disclose information related to safety concerns. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1142 (9th Cir. 2012). 9 1 gravity of the harm . . . .” 2 886 (internal quotation and citation omitted). 3 S. Bay Chevrolet, 72 Cal. App. 4th at Plaintiffs point to two alleged harms to consumers. First, 4 although contending that they are “well tethered to the reality 5 that products often adhere to the inside of their containers,” 6 Plaintiffs nevertheless argue that an alleged ten percent rate of 7 unusable propane is an “exorbitant amount.”5 8 mot. at 17.) 9 that Plaintiffs have no choice but to yield any inaccessible (Opp. to Amerigas This supposed harm is premised upon the assumption 10 propane to Defendants. 11 as propane consumers may opt to refill, rather than exchange, their 12 propane cylinders, thus retaining the unusable portion of propane 13 for themselves. 14 1139 (N.D. Cal. 2010) (explaining, in unconscionability context, 15 that “any claim of oppression may be defeated if the complaining 16 party had reasonably available alternative sources of supply from 17 which to obtain the desired goods or services . . . .” (internal 18 quotation and citation omitted)). 19 As discussed above, that is not the case, See, e.g. Tietsworth v. Sears, 720 F.Supp.2d 1123, Second, and in Plaintiffs’ minds, more importantly, Plaintiffs 20 assert that they are harmed by their inability to “see how much 21 propane remains in the tank when it was no longer able to start a 22 fire.” 23 consumers’ ability to determine whether, or even how much, propane 24 remains in a cylinder is not dependent upon visual observation. 25 The harms alleged here are not particularly severe. (Opp. to Amerigas mot. at 17.) As also explained above, 26 5 27 28 This argument contradicts the SAC, which alleges that Plaintiffs “never realized [they] would not be able to utilize all of the propane [they] were purchasing . . . .” (SAC ¶¶ 5, 7 (emphasis added).) 10 1 Nor do the justifications for Defendants’ business practices 2 strike this court as particularly nefarious. At present, consumers 3 drop their tanks off outside Defendants’ cylinder cages. 4 store employee then unlocks the cage and hands the consumer a 5 filled cylinder, for which the consumer later pays at a point of 6 sale. 7 and credit system whereby the retail store employee would first 8 weigh or otherwise assess consumers’ old cylinder, determine the 9 weight of any remaining propane, calculate the value of that A retail Plaintiffs request that Defendants implement a measurement 10 propane, and then issue a credit, specific to that cylinder, to the 11 consumer, who presumably would later seek to apply that credit to 12 the newly purchased cylinder at a point of sale, or perhaps “cash 13 out” instead. 14 relatively streamlined system appear obvious when contrasted with 15 the more complicated, time-consuming, and likely costly mechanism 16 Plaintiffs propose. 17 Plaintiffs have not plausibly alleged an unfair business practice. The justifications for, and utility of, Defendants’ Given the balance of the relevant factors, 18 D. Other Claims 19 Among the claims Defendants move to dismiss are Plaintiffs’ 20 claims for “Violation of Consumer Fraud Laws of Several States 21 Except for California,” breach of contract and “Breach of Express 22 Warranties of Each State,” violation of the Magnuson-Moss Warranty 23 Act, violation of California’s Song-Beverly Consumer Warranty Act, 24 unjust enrichment, and money had and received. 25 refer to Defendants’ arguments in passing, they provide no 26 substantive opposition or arguments of their own. 27 28 11 Although Plaintiffs The court 1 construes this failure as a waiver of those claims.6 2 v. Federal Nat’l Mortgage Assoc., No. 15-cv-04890-ODW, 2015 WL 3 9582539 at *2 (C.D. Cal. Dec. 29. 2015). 4 IV. 5 See Rodriguez Conclusion For the reasons stated above, Defendants’ Motions to Dismiss 6 are GRANTED. 7 prejudice. The Second Amended Complaint is DISMISSED, with 8 9 IT IS SO ORDERED. 10 11 12 Dated: May 4, 2016 DEAN D. PREGERSON United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 6 25 26 27 28 The closest Plaintiffs come to a substantive opposition is, with respect to their contract and warranty claims, a statement that “[A]ny act that a person may do may be done through an agent.” (Opps. at 23.) Even assuming that Plaintiffs are referring to retailers who host cylinder cages, the SAC only alleges, in a footnote, that such retailers “may” have been acting as agents, without any factual support or allegations regarding contracts or warranties entered into by any supposed agent. See n.1, supra. 12
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
