Nacarino v. KSF Acquisition Corporation, No. 3:2022cv04021 - Document 28 (N.D. Cal. 2022)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS. Signed by Judge Maxine M. Chesney on 11/23/2022. (mmclc2, COURT STAFF) (Filed on 11/23/2022)
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Nacarino v. KSF Acquisition Corporation Doc. 28 1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 8 ELENA NACARINO, on behalf of herself and all others similarly situated, Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS 9 v. 10 11 Case No. 22-cv-04021-MMC KSF ACQUISITION CORPORATION, United States District Court Northern District of California Defendant. 12 13 Before the Court is defendant KSF Acquisition Corporation’s (“KSF”) “Motion to 14 Dismiss Plaintiff’s Complaint,” filed September 9, 2022. Plaintiff Elena Nacarino 15 (“Nacarino”) has filed opposition, to which KSF has replied. Having read and considered 16 the papers filed in support of and in opposition to the motion, the Court rules as follows.1 17 BACKGROUND2 18 KSF, a Delaware corporation, owns SlimFast, “one of the leading dietary shake 19 and smoothie mix brands in the United States.” (See CAC ¶¶ 2, 13, 14.) Nacarino, a 20 California resident, alleges that “in or around December 2021,” she purchased a product 21 marketed by KSF, specifically, “SlimFast Advanced Nutrition Smoothie Mix Vanilla Cream 22 Product” (“the Product”), from a Safeway store in San Francisco, and that she did so in 23 reliance on an assertedly false and misleading statement on its packaging. (See CAC 24 ¶¶ 6, 11, 33.) 25 26 1 27 2 28 By order filed October 17, 2022, the Court took the matter under submission. The following facts are taken from the allegations of the operative complaint, the “Class Action Complaint” (“CAC”). Dockets.Justia.com 1 2 on the phrase “20g HIGH PROTEIN” (the “Protein Representation”) on its front label (see 3 CAC ¶ 16), which she understood to mean that “the smoothie mix itself contained 20 4 grams of protein per serving” (see CAC at ¶ 11), whereas, in fact, the “[m]ix itself . . . 5 contains only 12g of protein per serving” (see CAC at ¶ 17). 6 United States District Court Northern District of California Specifically, Nacarino alleges that in purchasing the Product, she saw and relied Nacarino alleges other SlimFast products (hereinafter, together with the Product, 7 “the Products”) “suffer from the same flaw.” (See CAC ¶ 18.) In particular, Nacarino 8 alleges, SlimFast Original Meal Replacement Shake Mix promises “‘10g PROTEIN,’ but 9 the mix only contains 2g of protein per serving” (see CAC ¶ 18), SlimFast Advanced 10 Immunity Smoothie Mix promises “‘20g PROTEIN,’ but only provides 12g of protein per 11 serving” (see CAC ¶ 19), and SlimFast Diabetic Weight Loss Meal Shake promises 10g 12 of protein but provides only 2g of protein per serving (see CAC ¶¶ 1, 19). 13 Based on said allegations, Nacarino, on her own behalf and on behalf of two 14 putative classes, asserts the following seven claims for relief: (1) “Violation of California’s 15 Consumer Legal Remedies Act, Cal. Civ. Code § 1750, et seq.” (“CLRA”);3 (2) “Violation 16 of California’s False Advertising Law, Cal. Bus. & Prof. Code § 17500, et seq.” (“FAL”); 17 (3) “Violation of California’s Unfair Competition Law, Cal. Bus. & Prof. Code §17200, et 18 seq.” (“UCL”); (4) “Breach of Express Warranty, Cal. Com. Code § 2313”; (5) “Breach of 19 Implied Warranty, Cal. Com. Code § 2313”; 4 (6) “Quasi Contract/Unjust 20 Enrichment/Restitution”; and (7) “Common Law Fraud.” 5 21 22 23 24 25 26 27 28 3 The CLRA claim is asserted on behalf of a “California Consumer Subclass” comprised of “[a]ll residents of California who purchased the Product for personal, family, or household purposes, within the applicable statute of limitations period.” (See CAC ¶ 34.) 4 The FAL, UCL, Breach of Express Warranty, and Breach of Implied Warranty claims are asserted on behalf of a “California Class” comprised of “[a]ll residents of California who purchased the Products within the applicable statute of limitation[s].” (See CAC ¶ 34.) 5 The Quasi Contract/Unjust Enrichment/Restitution and Common Law Fraud claims are asserted on behalf of both the California Consumer Subclass and the California Class. (See CAC ¶ 34.) 2 DISCUSSION 1 2 3 the grounds that Nacarino (1) lacks standing to assert several of the claims in her 4 complaint and (2) has failed to allege facts sufficient to support any of her claims for 5 relief. The Court first turns to the question of standing. 6 United States District Court Northern District of California By the instant motion, KSF seeks an order dismissing the above-titled action, on A. Standing 7 A district court has subject matter jurisdiction only where the plaintiff has 8 “[s]tanding to sue” under Article III of the Constitution. See Spokeo, Inc. v. Robins, 578 9 U.S. 330, 338 (2016). To satisfy Article III's standing requirements, (1) “the plaintiff must 10 have suffered an injury in fact” that is “concrete and particularized” and “actual or 11 imminent, not conjectural or hypothetical,” (2) the injury must be “fairly traceable” to the 12 challenged conduct of the defendant, and (3) “it must be likely ... that the injury will be 13 redressed by a favorable decision.” See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 14 (1992) (internal quotation, citation, and alteration omitted). “The party invoking federal 15 jurisdiction bears the burden of establishing” the elements of standing, see id. at 561, and 16 must make such a showing separately for each form of relief requested, see Friends of 17 the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC) Inc., 528 U.S. 167, 185 (2000). 18 Here, KSF challenges, pursuant to Rule 12(b)(1) of the Federal Rules of Civil 19 Procedure, Nacarino’s “standing to pursue injunctive relief” (see Mot. at 8:9) and 20 “standing to bring claims as to products she did not purchase” (see Mot. at 9:22-23). 21 1. Standing to Seek Injunctive Relief 22 To have standing to seek injunctive relief, a plaintiff must “demonstrate a real and 23 immediate threat of repeated injury in the future.” See Chapman v. Pier 1 Imports (U.S.) 24 Inc., 631 F.3d 939, 946 (9th Cir. 2011) (internal quotation and citation omitted). The 25 “threatened injury must be certainly impending to constitute [Article III] injury in fact” and 26 “allegations of possible future injury are not sufficient.” Clapper v. Amnesty Int'l USA, 568 27 U.S. 398, 409 (2013) (emphasis in original) (internal quotation and citation omitted). 28 Here, KSF argues Nacarino lacks standing to pursue injunctive relief under the 3 1 CLRA, FAL, or UCL, because Nacarino is “now aware ‘that consumers must add milk to 2 obtain the grams of protein’ referenced on the front labels,” (see Mot. at 9:4-5 (quoting 3 CAC ¶¶ 5-6)), and thus “does not face any threat of actual or imminent injury,” (see Mot. 4 at 9:11-12). United States District Court Northern District of California 5 A “previously deceived consumer” who “now knows or suspects that the 6 [defendant’s] advertising was false at the time of the original purchase” may establish the 7 risk of future harm by plausibly alleging that: (1) “she will be unable to rely on the 8 product's advertising or labeling in the future, and so will not purchase the product 9 although she would like to”; or (2) “she might purchase the product in the future, despite 10 the fact it was once marred by false advertising or labeling, as she may reasonably, but 11 incorrectly, assume the product was improved.” See Davidson v. Kimberly-Clark Corp., 12 889 F.3d 956, 969-70 (9th Cir. 2018). “[W]here a plaintiff learns information during 13 litigation that enables her to evaluate product claims and make appropriate purchasing 14 decisions going forward,” however, injunctive relief “would serve no meaningful purpose 15 as to that plaintiff.” Jackson v. Gen. Mills, Inc., No. 18CV2634-LAB (BGS), 2020 WL 16 5106652, at *5 (S.D. Cal. Aug. 28, 2020). 17 In the instant case, as KSF points out, the true meaning of the Protein 18 Representation on the Product can be ascertained from (1) the instruction panel of the 19 container, which states “[p]er smoothie as prepared with fat-free milk” and/or (2) the 20 Nutrition Facts panel on the back of the container, which contains two columns by which 21 the nutrition value of one serving/scoop of the mix on its own and one serving/scoop of 22 the mix as prepared “w/ 8 fl oz Fat Free Milk” are distinguished. (See Reyna Decl. Ex. 1); 23 see also Ass’n of Am. Med. Colleges v. United States, 217 F.3d 770, 778 (9th Cir. 2000) 24 (holding, for purposes of considering motion to dismiss on grounds of subject matter 25 jurisdiction, court may consider matters outside pleadings). Consequently, if Nacarino, 26 as KSF also points out, “ever actually considers purchasing the Advanced Nutrition 27 Product again, she can just instantly check the Nutrition Facts panel for the protein 28 amounts per scoop and as prepared, which she has not alleged are inaccurate in any 4 1 way.” (See Mot. at 9:8-11.) Under such circumstances, Nacarino, “going forward,” is able to “evaluate product United States District Court Northern District of California 2 3 claims and make appropriate purchasing decisions” as to the Product, and, consequently, 4 injunctive relief “would serve no meaningful purpose.” See Jackson, 2020 WL 5106652, 5 at *5 (holding plaintiff allegedly deceived by cereal box slack-fill lacked standing to seek 6 injunctive relief “given that she now kn[ew] she [could] ascertain the amount of cereal she 7 is buying by looking at the label”); see also, e.g., Fernandez v. Atkins Nutritionals, Inc., 8 No. 317CV01628GPCWVG, 2018 WL 280028, at *15 (S.D. Cal. Jan. 3, 2018) (holding 9 plaintiff allegedly deceived by “net carbs” representation on product packaging lacked 10 standing to seek injunctive relief; noting plaintiff “now kn[ew] how [defendant] goes about 11 calculating its net carbs claims, and she [would] not be misled next time”). Accordingly, to the extent her claims are based on the Product she purchased, the 12 13 Court finds Nacarino lacks standing to seek injunctive relief under the CLRA, FAL, or 14 UCL.6 2. Standing to Seek Any Relief as to Products Not Purchased by Named Plaintiff 15 16 As set forth above, Article III standing requires a showing of an injury in fact that is 17 traceable to the challenged conduct and redressable by a favorable ruling. See Lujan, 18 504 U.S. at 560-61. Under the FAL and UCL, an individual has standing only if he or she 19 has “suffered injury in fact and lost money or property as a result of” a violation of such 20 statute. See Cal. Bus. & Prof. Code §§ 17204, 17535; see also Kwikset Corp. v. Superior 21 Court, 51 Cal.4th 310, 322 (2011). Similarly, under the CLRA, “[a] plaintiff . . . must not 22 only be exposed to an unlawful practice but also have suffered some kind of damage.” 23 See Cal. Civ. Code. § 1780; see also Bower v. AT&T Mobility, LLC, 196 Cal.App.4th 24 1545, 1556 (2011) (internal quotation and citation omitted). 25 KSF argues Nacarino lacks standing, under Article III as well as under the CLRA, 26 27 28 6 Given this finding, the Court does not address, in connection with Nacarino’s claims for injunctive relief, KSF’s additional argument that those claims fail in light of an adequate legal remedy. 5 United States District Court Northern District of California 1 FAL, and UCL, to assert any claims based on products she did not purchase, namely, 2 SlimFast Original Meal Replacement Shake Mix, SlimFast Diabetic Weight Loss Meal 3 Shake, and SlimFast Advanced Immunity Smoothie Mix. (See Mot. at 9:24-10:2.) 4 Contrary to KSF’s argument, however, “the prevailing view within this district (and 5 elsewhere in the Ninth Circuit) . . . holds that a plaintiff [in a putative class action] may . . . 6 have constitutional and statutory standing to assert claims based on misrepresentations 7 appearing on products he did not purchase” where “the products and claims at issue are 8 substantially similar.” See Werdebaugh v. Blue Diamond Growers, No. 12-CV-02724- 9 LHK, 2013 WL 5487236, at *13 (N.D. Cal. Oct. 2, 2013) (internal quotation and citation 10 omitted); see also Brazil v. Dole Food Co., No. 12-CV-1831-LHK, 2013 WL 5312418, at 11 *7 (N.D. Cal. Sep. 23, 2013) (noting the “entire point of the substantially similar approach” 12 is to ensure, “by limiting a plaintiff’s ability to sue over products he did not purchase to 13 situations involving claims and products that are substantially similar to those products he 14 did purchase,” that “the plaintiff is seeking to represent only those individuals who have 15 suffered essentially the same injury as the plaintiff.”). 16 Here, the injury Nacarino alleges she suffers is essentially the same as the injury 17 she alleges is suffered by putative class members who purchased other SlimFast 18 smoothie/shake mix products. Specifically, all of Nacarino’s claims are based on the 19 “same kind of food products,” see Astiana v. Dreyer’s Grand Ice Cream, Inc., No. C-11- 20 2910 EMC, 2012 WL 2990766, at *13 (N.D. Cal. July 20, 2012), namely, smoothies and 21 shake mixes, and the “same labels for all of the products,” see id., namely, Protein 22 Representations on the Products’ front labels (see also CAC ¶¶ 1, 3). 23 Accordingly, to the extent she asserts claims, other than for injunctive relief, based 24 on products she herself did not purchase, the Court finds Nacarino has adequately 25 demonstrated Article III and statutory standing. 26 27 28 B. Failure to State a Claim KSF contends each of the causes of action alleged here, is subject to dismissal, pursuant to Rule 12(b)(6), for failure to state a claim. 6 1 2 theory or the absence of sufficient facts alleged under a cognizable legal theory." See 3 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Rule 8(a)(2), 4 however, "requires only 'a short and plain statement of the claim showing that the pleader 5 is entitled to relief.'" See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) 6 (quoting Fed. R. Civ. P. 8(a)(2)). Consequently, "a complaint attacked by a Rule 12(b)(6) 7 motion to dismiss does not need detailed factual allegations." See id. Nonetheless, "a 8 plaintiff's obligation to provide the grounds of his entitlement to relief requires more than 9 labels and conclusions, and a formulaic recitation of the elements of a cause of action will 10 11 United States District Court Northern District of California Dismissal under Rule 12(b)(6) "can be based on the lack of a cognizable legal not do." See id. (internal quotation, citation, and alteration omitted). In analyzing a motion to dismiss, a district court must accept as true all material 12 allegations in the complaint and construe them in the light most favorable to the 13 nonmoving party. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). "To 14 survive a motion to dismiss," however, "a complaint must contain sufficient factual 15 material, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft 16 v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "Factual 17 allegations must be enough to raise a right to relief above the speculative level," 18 Twombly, 550 U.S. at 555, and courts "are not bound to accept as true a legal conclusion 19 couched as a factual allegation," see Iqbal, 556 U.S. at 678 (internal quotation and 20 citation omitted). 21 22 23 24 25 26 27 28 The Court addresses Nacarino’s claims in the sequence alleged. 1. First, Second, and Third Claims for Relief (“California Consumer Fraud Claims”) Nacarino's First, Second, and Third Claims for Relief allege violations of the CLRA, FAL, and UCL, respectively. The CLRA defines various “unfair methods of competition and unfair or deceptive acts or practices,” such as “[r]epresenting that goods ... have ... characteristics [or] ... benefits ... that they do not have[,]” see Cal. Civ. Code § 1770(a)(5), “[r]epresenting that 7 1 goods ... are of a particular standard, quality, or grade ... if they are of another,” see Cal. 2 Civ. Code § 1770(a)(7), and “[a]dvertising goods or services with intent not to sell them 3 as advertised,” see Cal. Civ. Code § 1770(a)(9). California's false advertising law 4 prohibits the use of “any advertising device . . . which is untrue or misleading.” See Cal. 5 Bus. & Prof. Code § 17500. The UCL bars “unfair competition,” which term is defined as 6 any “business act or practice” that is (1) “fraudulent,” (2) “unlawful,” or (3) “unfair.” See 7 Cal. Bus. & Prof. Code, § 17200. Although both damages and equitable relief are 8 available under the CLRA, see Cal. Civ. Code § 1780(a), “[t]he remedies available in a 9 UCL or FAL action are limited to injunctive relief and restitution,” see In re Vioxx Class 10 United States District Court Northern District of California 11 Cases, 180 Cal. App. 4th 116, 130 (2009). (a) Equitable Relief: Restitution 12 KSF argues Nacarino’s CLRA, FAL and UCL claims for restitution are subject to 13 dismissal for the reason that Nacarino has not pleaded facts “plausibly establishing that 14 her legal remedies are inadequate.” (See Mot. at 12:7-9.) 15 The Ninth Circuit has held that “[t]he traditional principles governing equitable 16 remedies in federal courts, including the requisite inadequacy of legal remedies, apply 17 when a party requests restitution under the UCL and CLRA in a diversity action.” See 18 Sonner v. Premium Nutrition Corp., 971 F.3d 834, 844 (9th Cir. 2020); see also Banks v. 19 R.C. Bigelow, Inc., 536 F.Supp.3d 640, 649 (C.D. Cal. 2021) (dismissing plaintiff’s FAL 20 claim for failure to plead lack of adequate remedy at law). Thus, in order to state a claim 21 under California’s consumer fraud statutes, a plaintiff “must establish that she lacks an 22 adequate remedy at law before securing equitable restitution for past harm[.]” See 23 Sonner, 971 F.3d at 844. 24 Here, Nacarino asserts that, absent equitable relief, she and her fellow class 25 members “may be irreparably harmed and/or denied an effective and complete remedy.” 26 (See CAC ¶¶ 59, 66). As KSF points out, however, Nacarino’s claims for damages are 27 “based on precisely the same alleged conduct” as her equitable claims for restitution, 28 “namely, the allegation that had she ‘known the truth—i.e., that consumers must add milk 8 1 to obtain the grams of protein promised in the Protein Representation—[she] would not 2 have purchased the Products or [she] would have paid less for them.’” (See Mot. at 3 13:17-22 (quoting CAC ¶ 6)). United States District Court Northern District of California 4 Notably, Nacarino offers no argument to the contrary, see Huu Nguyen v. Nissan 5 N. Am., Inc., No. 16-CV-05591-LHK, 2017 WL 1330602, at *4-5 (N.D. Cal. Apr. 11, 2017) 6 (granting motion to dismiss UCL claim where plaintiff “fail[ed] to explain how damages 7 [were] inadequate to compensate” for the “exact same alleged harm that form[ed] the 8 basis of [his] request[] for . . . restitutionary” relief (internal quotation and citation 9 omitted)), and instead contends her equitable claims are appropriately pled “in the 10 alternative” (see Opp. at 10:25). “The question is not,” however, “whether or when [a 11 plaintiff is] required to choose between two available inconsistent remedies,” but, rather, 12 “whether equitable remedies are available to [the plaintiff] at all.” See Shuman v. 13 SquareTrade Inc., No. 20-CV-02725-JCS, 2021 WL 5113182, at *10 (N.D. Cal. Nov. 3, 14 2021) (internal quotation and citation omitted). 15 Accordingly, to the extent Nacarino seeks restitution under the CLRA, FAL, and 16 UCL, her First, Second, and Third Claims for Relief are subject to dismissal for failure to 17 state a claim. Consequently, of those three claims, only the CLRA claim, under which 18 Nacarino seeks damages as well as equitable relief, potentially remains. The Court next 19 turns to that claim. 20 21 (b) Compliance with CLRA’s Pre-Suit Notice Requirements At the outset, the Court addresses KSF’s argument that Nacarino’s CLRA claim for 22 damages is subject to dismissal for failure to comply with the notice requirement set forth 23 in the CLRA. See Cal. Civ. Code § 1782(a). 24 “Thirty days or more prior to the commencement of an action for damages 25 pursuant to [the CLRA], the consumer” must “[n]otify the person alleged to have . . . 26 committed . . . the particular alleged violations . . . [and] demand that the person correct, 27 repair, replace, or otherwise rectify the goods or services alleged to be in violation of [the 28 CLRA].” See Cal. Civ.Code § 1782(a). Such notice must “be in writing and . . . sent by 9 United States District Court Northern District of California 1 certified or registered mail, return receipt requested, to the place where the transaction 2 occurred or to the person’s principal place of business within California.” See id. The 3 purpose of the notice requirement “is to give the manufacturer or vendor sufficient notice 4 of alleged defects to permit appropriate corrections or replacements,” the “clear intent of 5 the act [being] to provide and facilitate pre-complaint settlements of consumer actions 6 wherever possible and to establish a limited period during which such settlement may be 7 accomplished.” See Outboard Marine Corp. v. Superior Ct., 52 Cal. App. 3d 30, 40-41 8 (Ct. App. 1975). Federal courts have required “[s]trict adherence to the statute’s notice 9 provision…to accomplish the [CLRA’s] goals of expeditious remediation before litigation.” 10 See Laster v. T–Mobile USA, Inc., 407 F.Supp.2d 1181, 1196 (S.D.Cal.2005), aff'd, 252 11 F. App'x 777 (9th Cir. 2007). 12 Here, as KSF notes, Nacarino’s counsel, prior to filing the instant lawsuit, sent a 13 notice and demand letter to KSF on behalf of an individual named Amir Houriani 14 (“Houriani”), which letter made no mention of Nacarino, the sole plaintiff named here. 15 KSF contends the plain language of § 1782(a) requires the named plaintiff—“the 16 consumer” commencing the damages action—to send the notice letter to the defendant. 17 (See id. at 22:18-19.) In response, Nacarino argues “the CLRA pre-suit notice 18 requirement requires only that a consumer inform [the] [d]efendant of its violations and 19 requested relief under the CLRA,” and that such individual “does not have to be the same 20 consumer who brought the lawsuit[.]” (See Opp. at 25:4-6.) 21 The Court concludes the letter KSF received from Houriani prior to the filing of the 22 instant lawsuit satisfies the notice requirements of Section 1782(a) with respect to the 23 CLRA damages claims asserted in the Complaint. In particular, the above-referenced 24 letter was sent not only on behalf of Houriani but also “on behalf of all others similarly 25 situated (the ‘Class’),” which letter provided KSF with notice of the same claims Nacarino 26 now seeks to bring on an individual and class basis, thereby giving KSF the opportunity 27 to correct the violations alleged in the instant action. (See Cole Decl. Ex. 1); see also, 28 e.g., Vizcara v. Unilever United States, Inc., No. 4:20-CV-02777-YGR, 2020 WL 10 United States District Court Northern District of California 1 4016810, at *3 (N.D. Cal. July 16, 2020) (finding compliance with 1782(a) where notice 2 provided by individual other than named plaintiff; noting notice letter “provided 3 [defendant] with the opportunity to resolve individual and proposed class claims for 4 damages”); In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & 5 Prods. Liab. Litig., 754 F. Supp. 2d 1145, 1174-75 (C.D. Cal. 2010) (finding letter sent to 6 defendant on behalf of individuals not named as class representatives “sufficient to 7 comply with the [§ 1782(a)] notice requirement[;]” noting letter “fulfill[ed] the purpose of § 8 1782(a) to facilitate settlement and provide an opportunity for the manufacturer to fix 9 alleged defects”); Sanchez v. Wal-Mart Stores, Inc., No. Civ. CIVS06CV2573DFLKJM, 10 2007 WL 1345706, at *3 (E.D. Cal. May 8, 2007) (holding notice provided to defendant by 11 class member other than named plaintiff met requirements of § 1782(a); noting letter 12 identified relevant defect and stated notice was provided “on behalf of [author] and a 13 class of similarly situated consumers”). 14 15 16 17 Accordingly, Nacarino’s claim for damages under the CLRA is not subject to dismissal for failure to comply with § 1782(a). (c) Reasonable Consumer Standard KSF argues Nacarino’s CLRA claim for damages is subject to dismissal because, 18 according to KSF, Nacarino fails to plead facts showing a reasonable consumer would be 19 misled by the Protein Representation. (See Mot. at 14:11-13.) 20 A false advertising claim is “governed by the reasonable consumer test,” see 21 Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008) (internal quotation and 22 citation omitted), under which a plaintiff must “show that members of the public are likely 23 to be deceived” by the challenged representation, see id. (internal quotation and citation 24 omitted). The question of “‘[w]hether a business practice is deceptive’” is “‘usually . . . a 25 question of fact not appropriate for decision’ on a motion to dismiss.” See Moran v. 26 Edgewell Pers. Care, LLC, No. 21-CV-07669-RS, 2022 WL 3046906, at *2 (N.D. Cal. 27 Aug. 2, 2022) (quoting Williams, 552 F.3d at 938). 28 Here, KSF contends Nacarino’s “selective interpretation” of the Product’s labeling 11 United States District Court Northern District of California 1 cannot support her claims (see Mot. at 15:3-4) because, in reviewing such claims, courts 2 consider “the promotion as a whole” (see Mot. at 15:6-7). In particular, KSF asserts, 3 “[t]he cylindrical product containers are replete with information alerting reasonable 4 consumers that 20g protein refers to the amount of protein in one meal replacement 5 smoothie prepared with milk, as instructed” (see Mot. at 16:1-3 (emphasis in original)), 6 and that such information is neither “hidden” on the packaging nor “unreadably small” 7 (see Mot. at 16:11-12). In response, Nacarino contends the Protein Representation can 8 mislead reasonable consumers who understand it to mean “the shake mix itself provides 9 20 grams of protein per serving.” (See Opp. at 12:21 (emphasis in original).) In support, 10 she points to the prominence of the Protein Representation on the front label, which, as 11 she notes, makes no reference to milk or the need to add ingredients in order to obtain 12 the promised grams of protein. 13 Although, as KSF points out, the need to add milk is set forth on the Product’s 14 instruction panel, said disclosure is, by comparison, in much smaller type and surrounded 15 by other data.7 Consumers have no “duty to validate claims on the front of a product’s 16 label by cross-checking them against information contained in small print” on other parts 17 of the packaging, and failure to do so “does not constitute a failure to reasonably 18 safeguard [their] interests.” See Walters v. Vitamin Shoppe Industries, Inc., 701 F. App’x 19 667, 670 (9th Cir. 2017); see also Cimoli v. Alacer Corp., 546 F.Supp.3d 897, 902-04 20 (N.D. Cal. 2021) (finding “750 mg of Vitamin C” representation on front label of gummy 21 vitamins container actionable under CLRA, notwithstanding product’s back-label 22 clarification of dosage as per serving rather than per gummy); c.f. Freeman v. Time, Inc., 23 68 F.3d 285, 287-89 (rejecting argument that “members of the public would be deceived” 24 by “Million Dollar Dream Sweepstakes” promotion, where, “immediately next to” 25 26 27 28 7 The miniscule double-cross symbol adjacent to the Protein Representation is not, contrary to KSF’s description, an “asterisk” but, rather, a less familiar symbol, which evidently lacks a name in common parlance, and, at best, leads the consumer to a partial disclosure, which, as noted above, is essentially buried amidst other information. 12 1 statements indicating plaintiff had won sweepstakes, promotion included “qualifying 2 language”, albeit in smaller type, “indicating that plaintiff would win only if he returned a 3 winning prize number”); Hairston v. S. Beach Beverage Co., No. CV 12-1429-JFW DTBX, 4 2012 WL 1893818, at *4-5 (C.D. Cal. May 18, 2012) (finding reasonable consumer “not 5 likely to be deceived” by “all natural” representation on water bottle where representation 6 was “immediately followed by the additional statement ‘with vitamins’ or ‘with B 7 vitamins’”). 8 9 10 United States District Court Northern District of California 11 12 Accordingly, to the extent Nacarino seeks damages under the CLRA, her First Claim for Relief is not subject to dismissal. 2. Fourth and Fifth Claims for Relief (“Warranty Claims”) Nacarino's Fourth and Fifth Claims for Relief allege claims for breach of express and implied warranty, respectively. (a) 13 Express Warranty 14 Under California law, “[a]ny affirmation of fact or promise made by the seller to the 15 buyer which relates to the goods and becomes part of the basis of the bargain creates an 16 express warranty that the goods shall conform to the affirmation or promise,” see Cal. 17 Com. Code § 2313(1)(a), and “[a]ny description of the goods which is made part of the 18 basis of the bargain creates an express warranty that the goods shall conform to the 19 description,” see Cal. Com. Code § 2313(1)(b). To state a claim for breach of express 20 warranty, the plaintiff must show “(1) [the seller] made an affirmation of fact or promise or 21 provided a description of its goods; (2) the promise or description formed part of the basis 22 of the bargain; (3) the express warranty was breached; and (4) the breach caused injury 23 to the plaintiff.” See Corbett v. PharmaCare U.S., Inc., 567 F. Supp. 3d 1172, 1199 (S.D. 24 Cal. 2021) (internal quotation and citation omitted). “To constitute a warranty and be 25 actionable, the statement must be specific and unequivocal.” Id. (internal quotation and 26 citation omitted). 27 28 Here, KSF argues the Protein Representation on the front label of the Product is not an affirmation of fact or promise that the amount of protein listed is per serving/scoop 13 United States District Court Northern District of California 1 alone, rather than per scoop as combined with fat free milk, and, consequently, is not 2 actionable as an express warranty. 3 Although the Court has found the Protein Representation could mislead a 4 reasonable consumer, the Court agrees that the representation does not constitute an 5 express statement that the amount of protein is per serving/scoop alone. See Cimoli, 6 546 F.Supp.3d at 900, 905 (holding no breach of express warranty where label on 7 Vitamin C gummies, which stated “750 mg Vitamin C,” could mislead consumers to 8 believe that each gummy contained 750 mg of Vitamin C, when, in fact, each serving of 9 gummies contained that amount; noting representation “[did] not amount to an 10 unequivocal statement or promise that the dosage [was] per gummy” and was “otherwise 11 truthful”). 12 13 14 15 Accordingly, Nacarino’s Fourth Claim for Relief is subject to dismissal for failure to state a claim. (b) Implied Warranty Under California law, “a warranty that the goods shall be merchantable is implied 16 in a contract for their sale.” See Cal. Com. Code § 2314(1). The term “merchantable,” as 17 used in § 2314, has several meanings, including that “the product must conform to the 18 promises or affirmations of fact made on the container or label if any.” See Cal. Com. 19 Code § 2314(2)(f). Here, Nacarino alleges she purchased the Product in reliance on the 20 Protein Representation, located on the Product’s front label, by which, according to 21 Nacarino, KSF “made an implied promise . . . that the Product[] contain[s] the specific 22 number of grams of protein” advertised, and that the Product fails to conform to said 23 implied promise because it contains “far fewer grams of protein [than] as promised on the 24 [Product’s] front label.” (See CAC ¶ 81). 25 Because Nacarino’s implied warranty claim, like her express warranty claim, is 26 predicated solely on the above-discussed failure to conform to an allegedly “implied 27 promise” on the Product’s front label (see CAC ¶ 81), and because the Court has found 28 Nacarino has not pled an express warranty claim based thereon, Nacarino’s implied 14 1 warranty claim likewise fails. See Cimoli, 546 F.Supp.3d at 905 (finding, where express 2 and implied warranty claims were predicated on same alleged “affirmation of fact or 3 promise,” implied warranty claim “rises and falls” with express warranty claim).8 4 Accordingly, Nacarino’s Fifth Claim for Relief is subject to dismissal. 3. Sixth Claim for Relief 5 6 7 Enrichment/Restitution.” (See CAC at 23:16.) KSF argues said claim is subject to 8 dismissal, for the asserted reason that “California does not recognize a separate cause of 9 action for unjust enrichment.” (See Mot. at 21:8-9.)9 10 United States District Court Northern District of California Nacarino’s Sixth Claim for Relief is titled “Quasi Contract/Unjust Although KSF is correct that “unjust enrichment” itself is “not a cause of action,” 11 see McBride v. Boughton, 123 Cal.App. 4th 379, 387 (2004) (noting “[u]njust enrichment” 12 is a “general principle, underlying various legal doctrines and remedies”) (internal 13 quotation and citation omitted), the Ninth Circuit has recognized that “when a plaintiff 14 alleges unjust enrichment, a court may construe the cause of action as a quasi-contract 15 claim seeking restitution[,]” see Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 762 16 (9th Cir. 2015) (internal quotation and citation omitted). In the instant case, the Court will 17 construe Nacarino’s Sixth Claim for Relief as a standalone equitable claim, but 18 nonetheless finds the claim subject to dismissal, given Nacarino’s failure to plausibly 19 allege she lacks an adequate remedy at law. See Sonner, 971 F.3d at 844 (holding 20 “[plaintiff] must establish that she lacks an adequate remedy at law before securing 21 equitable restitution for past harm under the UCL and CLRA.”); see also, e.g., Barrett v. 22 Apple Inc., 523 F. Supp. 3d 1132, 1157 (N.D. Cal. 2021) (finding “under Sonner, a quasi- 23 24 25 26 27 28 8 In light of this finding, the Court does not address herein KSF’s argument that a plaintiff may only allege a claim for breach of implied warranty of merchantability against a defendant in privity with such plaintiff. 9 KSF additionally argues said claim is subject to dismissal for the asserted reason that it is “based on the same misguided theory of consumer deception as the CLRA, FAL, and UCL claims.” (See Mot. at 21:15-16.) This argument is foreclosed, however, by the Court’s finding that, for purposes of a claim for damages under the CLRA, a reasonable consumer could be misled by the Protein Representation. See Section B(1)(c), supra. 15 1 contract claim cannot survive a motion to dismiss unless the proponent adequately 2 pleads that no legal remedy exists.”). 3 Accordingly, the Sixth Claim for Relief is subject to dismissal. 4. Seventh Claim for Relief 4 5 6 United States District Court Northern District of California 7 Nacarino’s Seventh Claim for Relief is titled “Common Law Fraud.” (See CAC at 24:14.) “The elements of fraud are a misrepresentation, knowledge of its falsity, intent to 8 defraud, justifiable reliance and resulting damage,” Gil v. Bank of Am., N.A., 138 9 Cal.App.4th 1371, 1381 (2006), and such claims are subject to the heightened pleading 10 standard set forth in Rule 9(b) of the Federal Rules of Civil Procedure, see Vess v. Ciba- 11 Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (holding plaintiff must include “the 12 who, what, when, where, and how” of the alleged fraud). 13 Here, KSF contends, Nacarino’s common law fraud claim is subject to dismissal 14 “for the same reasons as her CLRA, UCL and FAL claims,” namely, Nacarino’s failure to 15 “plausibly establish a false representation.” (See Mot. at 21:23-24.) Although, contrary to 16 KSF’s earlier argument, the Court has found the Protein Representation could mislead a 17 reasonable consumer for purposes of a claim for damages under the CLRA, the Court, as 18 set forth below, agrees with KSF that Nacarino has failed to allege an actionable 19 misstatement for purposes of a claim alleging common law fraud. 20 The statutory consumer fraud and common law consumer fraud standards are 21 “substantively distinct.” See In re Actimmune Mktg. Litig., No. C 08-02376 MHP, 2009 22 WL 3740648, at *7 (N.D. Cal. Nov. 6, 2009), aff'd, 464 F. App'x 651 (9th Cir. 2011). 23 Unlike the CLRA, FAL, and UCL, which only require an allegation that “members of the 24 public are likely to be deceived” by a defendant’s conduct, see id., “‘[a] common law 25 fraudulent deception must be actually false,’” see id. (alteration omitted) (quoting In re 26 Tobacco II Cases, 46 Cal.4th 298, 312 (2009); see also Day v. AT & T Corp., 63 Cal. App. 27 4th 325, 332-33 (1998) (noting “[a] perfectly true statement couched in such a manner 28 that it is likely to mislead or deceive a consumer, such as by failure to disclose other 16 1 relevant information, is actionable” under California’s consumer fraud statutes, whereas 2 “a fraudulent deception must be actually false”). 3 Here, as discussed earlier, the Protein Representation is not a false affirmation of 4 fact, but rather an ambiguous description of the Product’s protein content, which can be 5 clarified by reference to the corresponding disclosures on the instructions panel and/or 6 Nutrition Facts panel. Consequently, while the Protein Representation may be “couched 7 in . . . a manner” sufficient to support a claim under the CLRA, see Day, 63 Cal.App.4th at 8 332-33, it does not rise to the level of an express misstatement necessary to support a 9 fraud claim.10 10 Accordingly, Nacarino’s Seventh Claim for Relief is subject to dismissal. CONCLUSION United States District Court Northern District of California 11 12 13 14 For the reasons stated above, KSF’s motion to dismiss is hereby GRANTED in part and DENIED in part as follows: 1. To the extent Nacarino, by her First Claim for Relief, seeks damages, the motion is DENIED. 15 16 2. In all other respects, the motion is GRANTED. 17 18 IT IS SO ORDERED. 19 20 Dated: November 23, 2022 MAXINE M. CHESNEY United States District Judge 21 22 23 24 25 26 27 28 10 In light of this finding, the Court does not address herein KSF’s argument that Nacarino failed to plausibly allege knowledge of falsity. 17
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