Bryan v. Del Monte Foods, Inc., No. 3:2023cv00865 - Document 28 (N.D. Cal. 2023)

Court Description: ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS; AFFORDING PLAINTIFF LEAVE TO AMEND. To the extent Bryan seeks injunctive relief, the motion is granted. To the extent Bryan asserts in Count V claims under the laws of states other than California or Oregon, the motion is granted. To the extent Bryan asserts claims based on any unidentified product, the motion is granted. To the extent Bryan asserts a claim for Unjust Enrichment, the motion is granted. In all other respects, the motion is denied. If Bryan wishes to file a First Amended Complaint, she shall do so no later than August 25, 2023. Signed by Judge Maxine M. Chesney on July 25, 2023. (mmclc3, COURT STAFF) (Filed on 7/25/2023)

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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 KERSTINE BRYAN, Plaintiff, 8 DEL MONTE FOODS, INC., Defendant. 11 United States District Court Northern District of California ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS; AFFORDING PLAINTIFF LEAVE TO AMEND v. 9 10 Case No. 23-cv-00865-MMC Re: Dkt. No. 21 12 13 Before the Court is defendant Del Monte Foods, Inc.’s (“Del Monte”) Motion, filed 14 June 2, 2023, “to Dismiss Plaintiffs’ Complaint.” Plaintiff Kerstine Bryan (“Bryan”) has 15 filed opposition, to which Del Monte has replied. Having read and considered the papers 16 filed in support of and in opposition to the motion, the Court rules as follows.1 17 18 BACKGROUND Del Monte is a Delaware corporation with a principal place of business in 19 California. (See Class Action Compl. (“CAC”) ¶ 20, Dkt. No. 1.) Bryan, a “citizen of 20 Oregon,” alleges she purchased, “at retailers throughout Oregon,” fruit cups 21 manufactured by Del Monte, specifically, “Mango Chunks and Peach Chunks,” and that 22 she did so in reliance on an assertedly false and misleading statement made on their 23 respective front labels. (See CAC ¶ 20.)2 24 Specifically, Bryan alleges that in purchasing the fruit cups, she saw and relied on 25 26 27 28 1 By order filed July 14, 2023, the Court took the matter under submission. Although the CAC also states Bryan’s purchases “took place in California” (see CAC ¶ 20), there is no dispute that said allegation constitutes a typographical error. 2 1 the phrase “fruit naturals,” with a bolded emphasis on “naturals” (see CAC ¶¶ 6, 42), 2 which she understood to mean the products “contained only natural ingredients” (see 3 CAC ¶ 44), when, in fact, they “contain[ed] multiple synthetic ingredients,” including citric 4 acid, potassium sorbate, sodium benzoate, and methylcellulose gum (see CAC ¶¶ 49- 5 50). Bryan further alleges that other Del Monte products (hereinafter, together with 6 Mango Chunks and Peach Chunks, the “Products”) include the same “fruit naturals” 7 phrase on their front labels, despite containing the same synthetic ingredients. (See CAC 8 ¶¶ 1 n.1, 42, 50.) Based on said allegations, Bryan, on her own behalf and on behalf of three United States District Court Northern District of California 9 10 putative classes, asserts the following five claims for relief: (1) “Violation of California’s 11 Unfair Competition Law (‘UCL’), Cal. Bus. & Prof. Code § 17200, et seq.” (Count I);3 (2) 12 “Violation of The False Advertising Law (‘FAL’), Cal. Bus. & Prof. Code § 17500, et seq.” 13 (Count II);4 (3) “Violation of Oregon’s Unlawful Trade Practices Act (‘UTPA’)” (Count III);5 14 (4) “Unjust Enrichment” (Count IV);6 and (5) “Violation of State Consumer Protection 15 Statutes (Count V).”7 16 // 17 18 19 20 Bryan asserts the UCL claim on her own behalf and on behalf of a “Nationwide Class” comprised of “[a]ll persons who purchased [Del Monte’s] Products within the United States and within the applicable statute of limitations period.” (See CAC ¶¶ 69c, 79.) 3 4 21 Bryan asserts the FAL claim on her own behalf and on behalf of the Nationwide Class. (See CAC ¶ 88.) 22 Bryan asserts the UTPA claim on her own behalf and on behalf of an “Oregon Class” comprised of “[a]ll persons who purchased [Del Monte’s] Products within the State of Oregon and within the applicable statute of limitations period.” (See CAC ¶¶ 69b, 98.) 23 24 25 26 27 28 5 6 Bryan asserts the Unjust Enrichment claim on her own behalf and on behalf of three classes, namely, the Nationwide Class, Oregon Class, and a “Multi-State Consumer Class” comprised of “[a]ll persons in the States of California, Florida, Illinois, Maryland, Massachusetts, Minnesota, Missouri, New Jersey, New York, Pennsylvania, Oregon, and Washington who purchased the Products.” (See CAC ¶¶ 69a, 111.) 7 Bryan asserts the Consumer Protection Statutes claim on her own behalf and on behalf of the Multi-State Consumer Class. (See CAC ¶ 117.) 2 DISCUSSION 1 2 By the instant motion, Del Monte seeks an order dismissing the above-titled action 3 under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of Article III standing, 4 and/or under Rule 12(b)(6) for failure to state a claim. The Court turns first to the 5 question of standing. 6 United States District Court Northern District of California 7 A. Article III Standing 1. Legal Standard 8 A district court has subject matter jurisdiction only where the plaintiff has 9 “[s]tanding to sue” under Article III of the Constitution. See Spokeo, Inc. v. Robins, 578 10 U.S. 330, 338 (2016). To satisfy Article III's standing requirements, (1) “the plaintiff must 11 have suffered an injury in fact” that is “concrete and particularized” and “actual or 12 imminent, not conjectural or hypothetical,” (2) the injury must be “fairly traceable” to the 13 challenged conduct of the defendant, and (3) “it must be likely . . . that the injury will be 14 redressed by a favorable decision.” See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 15 (1992) (internal quotation, citation, and alteration omitted). “The party invoking federal 16 jurisdiction bears the burden of establishing” the elements of standing, see id. at 561, and 17 must make such a showing separately for each form of relief requested, see Friends of 18 the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC) Inc., 528 U.S. 167, 185 (2000). 19 20 2. Injury in Fact / Causation At the outset, Del Monte contends Bryan “pleads no facts establishing an 21 economic injury that confers Article III standing.” (See Def.’s Mot. to Dismiss Pl.’s Compl. 22 (“Def.’s Mot.”) at 21:4, Dkt. No. 21.) As set forth below, the Court disagrees. 23 The Ninth Circuit has “consistently recognized that a plaintiff can satisfy the injury 24 in fact requirement by showing that [such plaintiff] paid more for a product than [he/she] 25 otherwise would have due to a defendant's false representations about the product.” See 26 McGee v. S-L Snacks Nat'l, 982 F.3d 700, 706 (9th Cir. 2020). A plaintiff also can “plead 27 an economic injury by alleging that [he/she] bargained for a product worth a given value 28 but received a product worth less than that value.” See id. at 705–06. 3 1 2 on [Del Monte]’s misrepresentations that they [were] ‘natural’” (see CAC ¶ 67) and that 3 they “purchased, purchased more of, and/or paid more for, the Products than they would 4 have had they known the truth about the Products” (see CAC ¶ 65), specifically, “that the 5 Products were made with synthetic ingredients” (see CAC ¶ 84). In addition, Bryan 6 alleges, “‘natural’ products are worth more than products that contain artificial 7 ingredients” (see CAC ¶ 30), and that by misrepresenting the Products as natural, Del 8 Monte was “able to, and did, charge a premium price for the Products over the cost of 9 competitive products not bearing the misrepresentations” (see CAC ¶ 64). 10 United States District Court Northern District of California Here, Bryan alleges that she and the class members “paid for the Products based The Court finds Bryan’s allegations are sufficient to establish an economic injury 11 for purposes of Article III standing. See, e.g., Mazza v. Am. Honda Motor Co., 666 F.3d 12 581, 595 (9th Cir. 2012) (holding, where plaintiffs alleged they “paid more for the 13 [product] than they otherwise would have paid, or bought it when they otherwise would 14 not have done so, because [defendant] made deceptive claims,” they “suffered an ‘injury 15 in fact’”); Maisel v. S.C. Johnson & Son, Inc., 2021 WL 1788397, at *3 (N.D. Cal. May 5, 16 2021) (holding “because [plaintiff] allege[d] she purchased the [defendant’s] dishwasher 17 tablets and would not have if she knew they were mislabeled, . . . she ha[d] Article III 18 standing to bring th[e] case”).8 19 20 21 22 23 24 25 26 27 28 The cases on which Del Monte relies are readily distinguishable. (See Def.’s Mot. at 21:21-22:11.) First, Del Monte cites Naimi v. Starbucks Corp., 798 F. App'x 67 (9th Cir. 2019), in which the court stated that, “[u]nder New York law, a plaintiff's allegation that she would not have purchased a product but for a deceptive act, standing alone, is not a cognizable injury because it conflates the deceptive act with the injury,” see id. at 70. As observed by another judge in this district, however, “[t]he court [in Naimi] did not analyze the sufficiency of the allegation under either Ninth Circuit or California law.” See Sinatro v. Barilla Am., Inc., 2022 WL 10128276, at *10 (N.D. Cal. Oct. 17, 2022). Second, Del Monte cites McGee, a case in which the plaintiff, unlike Bryan here, “d[id] not allege that [the defendant] made false representations” about the product at issue, see id. at 707 (noting “a key element of . . . overpayment cases—a defendant’s misrepresentations about a product—[was] absent”). Similarly unpersuasive is Del Monte’s argument, again citing Naimi (see Def.’s Mot. at 24:10-20), that Bryan’s allegations are insufficient to establish causation for purposes of Article III standing. See Maisel, 2021 WL 1788397, at *3 (noting “if plaintiffs state that they would not have purchased a product had there been proper disclosure of relevant facts, that is sufficient to plead causation” (internal quotation, citation, and 4 8 1 2 3 4 United States District Court Northern District of California 5 Accordingly, Bryan’s claims are not subject to dismissal for failure to plead an injury in fact or causation. 3. Standing to Seek Injunctive Relief Del Monte next contends Bryan “has not plead[ed] facts establishing any entitlement to injunctive relief.” (See Def.’s Mot. at 22:18-19.) 6 To have standing to seek injunctive relief, a plaintiff must “demonstrate a real and 7 immediate threat of repeated injury in the future.” See Chapman v. Pier 1 Imports (U.S.) 8 Inc., 631 F.3d 939, 946 (9th Cir. 2011) (internal quotation and citation omitted). The 9 “threatened injury must be certainly impending to constitute [Article III] injury in fact” and 10 “allegations of possible future injury are not sufficient.” Clapper v. Amnesty Int'l USA, 568 11 U.S. 398, 409 (2013) (emphasis in original) (internal quotation and citation omitted). 12 Here, Del Monte argues, Bryan lacks standing to pursue injunctive relief “because 13 [Bryan] cannot be deceived by the allegedly misleading labeling again (as she allegedly 14 was).” (See Def.’s Mot. at 23:13-14 (emphasis in original).) 15 In response, Bryan concedes, and the Court finds, “[Del Monte] is correct about 16 the [CAC’s] insufficient allegations of future harm to obtain injunctive relief.” (See Pl.’s 17 Opp’n to Def.’s Mot. to Dismiss Compl. (“Pl.’s Opp’n”) at 17:12 n.4, Dkt. No. 24); see also 18 Jackson v. Gen. Mills, Inc., 2020 WL 5106652, at *5 (S.D. Cal. Aug. 28, 2020) (noting 19 “where a plaintiff learns information during litigation that enables her to evaluate product 20 claims and make appropriate purchasing decisions going forward, an injunction would 21 serve no meaningful purpose as to that plaintiff”). 22 23 24 25 26 Accordingly, to the extent Bryan seeks injunctive relief, such claims are subject to dismissal for lack of standing. 4. Standing to Assert Claims Under Non-Oregon Consumer Protection Statutes (Counts I, II, and V) Del Monte further contends Bryan does “not have standing to bring non-Oregon 27 28 alteration omitted)). 5 United States District Court Northern District of California 1 consumer protection law claims.” (See Def.’s Mot. at 24:21-22.) 2 As noted, Bryan asserts, in Counts I and II, claims under California law, and 3 asserts, in Count V, in addition to a claim under Oregon law, claims under the respective 4 consumer protection laws of twelve states, specifically, “California (Cal. Bus. & Prof. 5 Code § 17200, et seq.); Florida (Fla. Stat. § 501.201, et seq.); Illinois (815 ILCS 505/1, et 6 seq.); Maryland (Md. Com. Law § 13-301); Massachusetts (Mass. Gen. Laws Ch. 93A, et 7 seq.); Michigan (Mich. Comp. Laws § 445.901, et seq.); Minnesota (Minn. Stat. § 8 325F.67, et seq.); Missouri (Mo. Rev. Stat. § 407.010, et seq.); New Jersey (N.J. Stat. § 9 56:8-1, et seq.); New York (N.Y. Gen. Bus. Law § 349, et seq.); Pennsylvania (73 Pa. 10 Stat. Ann. § 201-1 et seq.); and Washington (Wash. Rev. Code § 19.86.010, et seq.).” 11 (See CAC ¶ 69a n.25.) 12 “Where a representative plaintiff is lacking for a particular state, all claims based 13 on that state's laws are subject to dismissal.” Granfield v. NVIDIA Corp., 2012 WL 14 2847575, at *4 (N.D. Cal. July 11, 2012) (emphasis in original) (citation and alteration 15 omitted) (noting “[t]his rule is consistent with the holding of Mazza that ‘each class 16 member's consumer protection claim should be governed by the consumer protection 17 laws of the jurisdiction in which the transaction took place’” (citing Mazza, 666 F.3d at 18 594)). Consistent therewith, “[d]istrict courts in our circuit have dismissed state law class 19 claims for lack of standing before the class certification stage where no named plaintiff 20 resides in or otherwise interacted with the state.” See Van Mourik v. Big Heart Pet 21 Brands, Inc., 2018 WL 1116715, at *1 (N.D. Cal. Mar. 1, 2018) (collecting cases). 22 Here, Bryan is the only named plaintiff. She resides in Oregon and does not 23 allege she made any purchases outside of Oregon nor interacted with any of the above- 24 listed states, other than, as discussed later herein, California. See infra Section B.3. 25 Despite Bryan’s argument that Del Monte “confuses a class certification issue as a 26 standing issue” (see Pl.’s Opp’n at 12:20), courts “have struck class allegations where it 27 is clear from the pleadings that class claims cannot be maintained,” see Pardini v. 28 Unilever United States, Inc., 961 F. Supp. 2d 1048, 1061 (N.D. Cal. 2013) (holding sole 6 1 named plaintiff who “ha[d] not alleged that she purchased [the product] outside of 2 California . . . [did] not have standing to assert a claim under the consumer protection 3 laws of the other states named in the Complaint”); see also Jones v. Micron Tech. Inc., 4 400 F. Supp. 3d 897, 909 (N.D. Cal. 2019) (holding named plaintiffs, who “alleged they 5 [we]re residents of only five [states]” and “d[id] not allege they were injured or had any 6 pertinent connection to the twenty other states invoked by the Complaint[,] . . . lack[ed] 7 standing to bring causes of action based on the laws of states other than [the five 8 states]”). 9 10 United States District Court Northern District of California 11 12 13 Accordingly, to the extent Count V is brought under the laws of eleven states other than California and Oregon, such claim is subject to dismissal for lack of standing. 5. Standing to Seek Relief as to Products Not Purchased by Named Plaintiff As set forth above, Article III standing requires a showing of an injury in fact that is 14 traceable to the challenged conduct and redressable by a favorable ruling. See Lujan, 15 504 U.S. at 560-61. 16 Del Monte argues Bryan lacks Article III standing to assert any claims based on 17 products she did not purchase, namely, “Fruit Naturals Bartlett Pear Chunks, Fruit 18 Naturals Peach Chunks, Fruit Naturals Mandarin Oranges, Fruit Naturals Mango Chunks, 19 and Fruit Naturals Cherry Mixed Fruit,” as well as “products that are similarly deceptively 20 marketed.” (See CAC ¶ 1 n.1.) 21 Contrary to Del Monte’s argument, however, “[t]he majority of the courts that have 22 carefully analyzed the question hold that a plaintiff may have standing to assert claims for 23 unnamed class members based on products he or she did not purchase so long as the 24 products and alleged misrepresentations are substantially similar.” See Brown v. Hain 25 Celestial Grp., Inc., 913 F. Supp. 2d 881, 890 (N.D. Cal. 2012); see also Ang v. Bimbo 26 Bakeries USA, Inc., 2014 WL 1024182, at *6 (N.D. Cal. Mar. 13, 2014) (noting “judges in 27 this District . . . look at the same factors—similarity in products, similarity in claims, 28 similarities in injury to consumers—to determine which unpurchased products can be 7 1 2 Here, as to “Fruit Naturals Bartlett Pear Chunks, Fruit Naturals Peach Chunks, 3 Fruit Naturals Mandarin Oranges, Fruit Naturals Mango Chunks, and Fruit Naturals 4 Cherry Mixed Fruit” (see CAC ¶ 1 n.1), Bryan’s claims are based on “the same kind of 5 food products,” see Astiana v. Dreyer's Grand Ice Cream, Inc., 2012 WL 2990766, at *13 6 (N.D. Cal. July 20, 2012), as those she purchased, namely, fruit cups, “the same labels 7 for all of the products,” see id., namely, the front label containing the “fruit naturals” 8 phrase, and an “identical” injury, namely, payment that otherwise would not have been 9 made, see Ang, 2014 WL 1024182, at *8. 10 United States District Court Northern District of California included by plaintiffs in their class actions”). As to the “products that are similarly deceptively marketed” (see CAC ¶ 1 n.1), 11 however, Bryan’s “failure to identify these products in any meaningful way dooms [her] 12 efforts to bring those products into this action,” see Gitson v. Trader Joe's Co., 2013 WL 13 5513711, at *4 (N.D. Cal. Oct. 4, 2013) (dismissing claim where “plaintiffs ha[d] pleaded 14 no facts regarding . . . what their labels state or even what kinds of products these 15 categories include”). 16 Accordingly, to the extent Bryan asserts claims based on the above-listed 17 identified products she herself did not purchase, the Court finds Bryan has adequately 18 demonstrated Article III standing. To the extent Bryan asserts claims based on any 19 unidentified products, such claims are subject to dismissal for failure to demonstrate 20 Article III standing. 21 22 23 B. Failure to State a Claim 1. Legal Standard Dismissal under Rule 12(b)(6) “can be based on the lack of a cognizable legal 24 theory or the absence of sufficient facts alleged under a cognizable legal theory.” See 25 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Rule 8(a)(2), 26 however, “requires only ‘a short and plain statement of the claim showing that the pleader 27 is entitled to relief.’” See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) 28 (quoting Fed. R. Civ. P. 8(a)(2)). Consequently, “a complaint attacked by a Rule 12(b)(6) 8 1 motion to dismiss does not need detailed factual allegations.” See id. Nonetheless, “a 2 plaintiff's obligation to provide the grounds of his entitlement to relief requires more than 3 . . . a formulaic recitation of the elements of a cause of action.” See id. (internal 4 quotation, citation, and alteration omitted). United States District Court Northern District of California 5 In analyzing a motion to dismiss, a district court must accept as true all material 6 allegations in the complaint and construe them in the light most favorable to the 7 nonmoving party. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). “To 8 survive a motion to dismiss,” however, “a complaint must contain sufficient factual 9 material, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 10 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “Factual 11 allegations must be enough to raise a right to relief above the speculative level,” 12 Twombly, 550 U.S. at 555, and courts “are not bound to accept as true a legal conclusion 13 couched as a factual allegation,” see Iqbal, 556 U.S. at 678 (internal quotation and 14 citation omitted). 15 16 2. State Consumer Protection Claims (Counts I, II, III, and V) a. Reasonable Consumer Standard 17 According to Del Monte, Bryan’s claims under the UCL, FAL, and UTPA, and other 18 state consumer protection statutes all “fail because [she] cannot allege that the Products’ 19 packaging would mislead a reasonable consumer.” (See Def.’s Mot. at 14:11-12.) As set 20 forth below, the Court disagrees. 21 Each such claim is “governed by the reasonable consumer test,” see Williams v. 22 Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008) (internal quotation and citation 23 omitted), under which a plaintiff must “show that members of the public are likely to be 24 deceived” by the challenged representation, see id. (internal quotation and citation 25 omitted). The question of “[w]hether a business practice is deceptive” is “‘usually . . . a 26 question of fact not appropriate for decision’ on a motion to dismiss.” See Moran v. 27 Edgewell Pers. Care, LLC, 2022 WL 3046906, at *2 (N.D. Cal. Aug. 2, 2022) (quoting 28 Williams, 552 F.3d at 938). 9 United States District Court Northern District of California 1 Here, Del Monte does not argue, nor would such argument likely be persuasive, 2 that a reasonable consumer would not understand the word “natural” to preclude the 3 presence of synthetic ingredients. See, e.g., Moore v. GlaxoSmithKline Consumer 4 Healthcare Holdings (US) LLC, 2021 WL 3524047, at *8 (N.D. Cal. Aug. 6, 2021) (noting 5 “[n]umerous courts in the Ninth Circuit have found it plausible that a reasonable 6 consumer could understand similar ‘natural’ statements, including ‘100% natural,’ 7 ‘natural,’ and ‘naturally-sourced,’ to mean that a product does not contain any non-natural 8 ingredients”) (collecting cases). Rather, Del Monte, noting “the presence of a disclaimer 9 or similar clarifying language may defeat a claim of deception” (see Def.’s Mot. at 15:18- 10 19 (citing Nelson v. MillerCoors, LLC, 246 F. Supp. 3d 666, 674 (E.D.N.Y. 2017)) 11 (alteration omitted)), asserts “the front label specifically disclaims that all ingredients in 12 the Products are natural by stating that the fruit is packed in light syrup, and the 13 ingredients label discloses the artificial ingredients” (see id. at 16:16-18). 14 To the extent Del Monte may be arguing all syrups contain artificial ingredients, 15 such argument is unavailing. Indeed, according to one highly respected dictionary, the 16 word “syrup” is more commonly used to denote a combination of natural ingredients. See 17 Oxford English Dictionary, https://www.oed.com/view/Entry/196652 (last visited July 25, 18 2023) (defining “syrup” as “[a] thick sweet liquid; esp. one consisting of a concentrated 19 solution of sugar in water (or other medium, e.g. the juices of fruits)”).9 Further, given the 20 relative placement of the words “fruit naturals” with the phrase “in extra light syrup,” a 21 reasonable consumer, as Bryan points out, could interpret the labeling to mean that the 22 syrup is free of synthetic ingredients. Cf. Carrea v. Dreyer's Grand Ice Cream, Inc., 475 23 F. App'x 113, 115 (9th Cir. 2012) (holding “no reasonable consumer is likely to think that 24 ‘Original Vanilla’ refers to a natural ingredient when that term is adjacent to the phrase, 25 ‘Artificially Flavored’”). 26 Under such circumstances, the ingredient list’s inclusion of synthetic ingredients 27 28 9 There is no argument that sugar is not a natural ingredient. 10 1 does not support dismissal of Bryan’s claims. “[R]easonable consumers are not 2 ‘expected to look beyond misleading representations on the front of the box to discover 3 the truth from the ingredient list in small print on the side of the box.’” See Cheslow v. 4 Ghirardelli Chocolate Co., 445 F. Supp. 3d 8, 19–20 (N.D. Cal. 2020) (quoting Williams, 5 552 F.3d at 939); see also Hall v. Diamond Foods, Inc, 2014 WL 3779012, at *4 (N.D. 6 Cal. July 31, 2014) (holding “[w]here . . . plaintiff allege[d] a defendant ha[d] falsely 7 labeled a product as ‘natural,’ . . . defendant c[ould not] rely on contrary information in the 8 ingredient list”). United States District Court Northern District of California 9 Accordingly, the claims alleging violation of state consumer protection laws are not 10 subject to dismissal on grounds of failure to plead facts sufficient to meet the reasonable 11 consumer test. 12 13 b. Rule 9(b) Del Monte next argues the above-listed four claims fail to meet the heightened 14 pleading requirements of Rule 9(b). Bryan does not dispute that those claims are subject 15 to the heighted pleading standards of Rule 9(b). (See Pl.’s Opp’n at 16:18-17:8.) 16 Rule 9(b) requires that “a party must state with particularity the circumstances 17 constituting fraud or mistake.” See Fed. R. Civ. P. 9(b). “Allegations of fraud must ‘be 18 specific enough to give defendants notice of the particular misconduct so that they can 19 defend against the charge and not just deny that they have done anything wrong.’” See 20 Elgindy v. AGA Serv. Co., 2021 WL 1176535, at *4 (N.D. Cal. Mar. 29, 2021) (quoting 21 Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003)). Consequently, 22 [a]verments of fraud must be accompanied by the who, what, when, where, and how of 23 the misconduct charged.” See Vess, 317 F.3d at 1106. 24 Here, Bryan alleges Del Monte manufactures and markets the challenged 25 Products. She also identifies which of the challenged Products she purchased, namely, 26 Mango Chunks and Peach Chunks. She further alleges she made these purchases 27 “[w]ithin the Class Period” and “[m]ost recently in January 2023, . . . from a Walmart store 28 in Salem, Oregon.” (See CAC ¶ 20a.) In the CAC, Bryan provides images of the 11 United States District Court Northern District of California 1 Products that show the front label, including the specific statement she challenges, “fruit 2 naturals.” (See CAC ¶ 43.) Moreover, she alleges she relied on that statement in making 3 her purchases and that had she known the Products were not natural, she would not 4 have purchased them. Numerous courts have found similar allegations sufficient to 5 satisfy Rule 9(b). See, e.g., Von Koenig v. Snapple Beverage Corp., 713 F. Supp. 2d 6 1066, 1077 (E.D. Cal. 2010) (finding plaintiffs satisfied Rule 9(b) where they “alleged that 7 between March 4, 2005 and March 4, 2009, defendant used terms such as ‘All Natural’ 8 and other similar terms in labeling its drink products[,] . . . submitted examples of the 9 labels[,] . . . allege[d] that this labeling deceived consumers because the drink products 10 contained HFCS, which they assert[ed] is not a natural product,” and “further allege[d] 11 that if they had not been deceived by the labels on the products, they would not have 12 purchased defendant's product, but would have purchased alternative drink products”) 13 (collecting cases); see also, e.g., Brown v. Van's Int'l Foods, Inc., 622 F. Supp. 3d 817, 14 829 (N.D. Cal. 2022); Moore, 2021 WL 3524047, at *7; Elgindy, 2021 WL 1176535, at 15 *12; Ehret v. Uber Techs., Inc., 68 F. Supp. 3d 1121, 1128-29 (N.D. Cal. 2014). 16 Del Monte argues Bryan nonetheless fails to satisfy Rule 9(b)’s requirements, in 17 that, according to Del Monte, she “only offers cursory allegations that [Del Monte’s] 18 misrepresentations were willful and knowing, but offers no specific allegations supporting 19 those legal conclusions.” (See Def.’s Mot. at 20-11-13.) Under Rule 9(b), however, 20 “intent, knowledge, and other conditions of a person's mind may be alleged generally.” 21 See Fed. R. Civ. P. 9(b). Moreover, Bryan has alleged facts in support of that allegation. 22 In particular, Bryan alleges that Del Monte, while indisputably knowing the Products 23 contain artificial ingredients, engaged in “marketing efforts stress[ing] the purported 24 ‘natural’ composition of [its] Products” (see CAC ¶ 5) by stating “‘natural’ in a prominent 25 location on the labels of all of the Products” (see CAC ¶ 56) and by “reinforc[ing] these 26 representations throughout other forms of marketing including its website” (see CAC 27 ¶ 47). Further, the CAC includes citations to a number of regulatory guidelines, rules, 28 and publications defining which substances are properly classified as “natural” (see CAC 12 1 ¶ 35) and/or “warn[ing] companies that the use of the term “natural” may be deceptive” 2 (see CAC ¶¶ 36, 37), and, in addition, cites to a consumer survey stating “[e]ighty-six 3 percent of consumers expect a ‘natural’ label to mean processed foods do not contain 4 any artificial ingredients” (see CAC ¶ 39). Such allegations “are ‘specific enough to give 5 defendants notice of the particular misconduct which is alleged to constitute the fraud 6 charged so that they can defend against the charge and not just deny that they have 7 done anything wrong,’” see Ehret, 68 F. Supp. 3d at 1129 (quoting Bly–Magee v. 8 California, 236 F.3d 1014, 1019 (9th Cir. 2001)), and taken together, suffice to support an 9 inference that Del Monte’s misrepresentations were willful and knowing. United States District Court Northern District of California 10 To the extent Bryan challenges products that she does not identify (see CAC 11 ¶ 1 n.1), however, the Court agrees with Del Monte that her allegations as to those 12 products are not specific enough to give defendants adequate notice of the fraud 13 charged. 14 15 16 Accordingly, to the extent Bryan challenges identified products, the claims alleging violation of state consumer protection laws are not subject to dismissal under Rule 9(b). 3. UCL and FAL Claims (Counts I, II, and V) 17 Del Monte argues Bryan fails to state a claim under the UCL or FAL for the 18 asserted reason that she “has not plausibly alleged any purchase that occurred in 19 California.” (See Def.’s Mot. at 17:11.) In particular, as Del Monte points out, Bryan 20 alleges she is an Oregon resident who purchased the Products in Oregon. (See id. at 21 17:11-13 (citing CAC ¶ 20).) 22 “The UCL makes actionable any ‘unlawful, unfair or fraudulent business act or 23 practice.’” Harris v. LSP Prod. Grp., Inc., 2021 WL 2682045, at *7 (E.D. Cal. June 30, 24 2021) (quoting Cal. Bus. & Prof. Code § 17200). “The FAL makes it unlawful for a 25 business to disseminate any statement ‘which is untrue or misleading, and which is 26 known, or which by the exercise of reasonable care should be known, to be untrue or 27 misleading.’” Id. (quoting Cal. Bus. & Prof. Code § 17500). 28 “In general, there is a strong presumption against the extraterritorial application of 13 United States District Court Northern District of California 1 California law.” Wisdom v. Easton Diamond Sports, LLC, 2018 WL 6264994, at *4 (C.D. 2 Cal. Oct. 9, 2018) (citing Sullivan v. Oracle Corp., 51 Cal. 4th 1191, 1207-08 (2011)); see 3 also Wilson v. Frito-Lay N. Am., Inc., 961 F. Supp. 2d 1134, 1147 (N.D. Cal. 2013) 4 (noting “the Supreme Court of California has clarified that state statutes like the UCL 5 [and] FAL . . . presumptively do not apply to occurrences outside California”). 6 Nevertheless, “state statutory remedies may be invoked by out-of-state parties when they 7 are harmed by wrongful conduct occurring in California.” See Norwest Mortg., Inc. v. 8 Superior Ct., 72 Cal. App. 4th 214, 224–25 (1999). In that regard, “[t]he critical issues 9 are whether the injury occurred in California and whether the conduct of [the defendant] 10 occurred in California.” See Tidenberg v. Bidz.com, Inc., 2009 WL 605249, at *4 (C.D. 11 Cal. Mar. 4, 2009). “If neither of these questions can be answered in the affirmative, then 12 [the] [p]laintiff will be unable to avail herself of these laws.” See id. 13 Here, Bryan alleges that Del Monte, “[f]rom its California headquarters, . . . 14 produces, markets, and distributes its consumer food products in retail stores throughout 15 the United States” (see CAC ¶ 21), and that Del Monte violated both the UCL and FAL 16 “by misrepresenting that the Products are ‘natural’” (see CAC ¶¶ 83, 90). 17 Del Monte argues “[t]hese allegations are insufficient,” in that Bryan “fails to 18 plausibly allege facts demonstrating that the ‘new look for fruit naturals’ labeling decision 19 was made in California.” (See Def.’s Reply in Supp. of Mot. to Dismiss Compl. at 5:1-2, 20 Dkt. No. 25.) The cases Del Monte cites, however, are distinguishable on their facts, in 21 that the defendants therein did not, unlike Del Monte, have their principal place of 22 business in California, see Wilson, 961 F. Supp. 2d at 1148 (noting “[d]efendant [wa]s 23 located in Texas”); see Six Dimensions, Inc. v. Perficient, Inc., 969 F.3d 219, 230 (5th 24 Cir. 2020) (noting “[n]o party in the case . . . reside[d] in California”); see Harris, 2021 WL 25 2682045, at *14 (noting “[p]laintiff concede[d] the non-residents in th[e] case cannot 26 assert California law-based claims”);10 Jackson v. Gen. Mills, Inc., 2019 WL 4599845, at 27 28 10 Although not stated in the order, the operative complaint in Harris alleged the “[d]efendant] [wa]s a Nevada corporation.” (See First Am. Class Action Compl. ¶ 13, 14 1 *3 (S.D. Cal. Sept. 23, 2019) (noting “[defendant] [wa]s a Delaware corporation with its 2 principal place of business in . . . Minnesota”). United States District Court Northern District of California 3 Where a defendant is located in California, and a non-resident plaintiff’s claim is 4 “based on alleged misrepresentations that were disseminated from California,” courts 5 have allowed the application of California law. See Ehret, 68 F. Supp. 3d at 1130-31 6 (collecting cases) (noting “the UCL's focus is ‘on the defendant's conduct, rather than the 7 plaintiff's damages, in service of the statute's larger purpose of protecting the general 8 public against unscrupulous business practices’”). Moreover, courts have found 9 allegations like Bryan’s sufficient to plead claims under both the UCL and FAL. See, e.g., 10 In re Mattel, Inc., 588 F. Supp. 2d 1111, 1119 (C.D. Cal. 2008) (finding non-California 11 plaintiffs could bring UCL claim where they “complain[ed] of misrepresentations made in 12 reports, company statements, and advertising that [we]re reasonably likely to have come 13 from or been approved by Mattel corporate headquarters in California”); TRC & Assocs. 14 v. NuScience Corp., 2013 WL 6073004, at *5 (C.D. Cal. Nov. 18, 2013) (finding non- 15 California plaintiff could bring UCL and FAL claims where “Complaint [wa]s not based 16 solely on a commercial transaction outside of California, but [wa]s instead based on 17 material misrepresentations originating in California . . . , traveling through Florida, and 18 ending up in Ohio”). 19 20 21 22 Accordingly, the UCL and FAL claims are not subject to dismissal for failure to allege a purchase in California. 4. UTPA Claim (Count III) Del Monte argues Bryan fails to state a UTPA claim, for the asserted reason that 23 the CAC “is devoid of any factual allegations demonstrating that Del Monte acted 24 willfully.” (See Def.’s Mot. at 18:8-9.) 25 “The UTPA allows a private right of action for persons who have suffered an 26 27 28 Harris v. LSP Prod. Grp., Inc., 2021 WL 2682045 (E.D. Cal. June 30, 2021) (Dkt. No. 24).) 15 1 ‘ascertainable loss of money or property, real or personal, as a result of another person's 2 willful use or employment of a method, act or practice declared unlawful under ORS 3 646.608.’” Colquitt v. Manufacturers & Traders Tr. Co., 144 F. Supp. 3d 1219, 1231 (D. 4 Or. 2015) (quoting Or. Rev. Stat. § 646.638(1)). To state a claim under the UTPA, a 5 plaintiff must allege: “(1) a violation of § 646.608(1), (2) causation, (3) damages, and (4) 6 willfulness by [d]efendant.” See id. “A willful violation occurs when the person 7 committing the violation knew or should have known that the conduct of the person was a 8 violation.” See Or. Rev. Stat. § 646.605(10). United States District Court Northern District of California 9 Here, Bryan alleges, Del Monte violated four separate subsections of Or. Rev. 10 Stat. § 646.608(1), specifically, § 646.608(1)(b), “by causing the likelihood of confusion or 11 of misunderstanding as to the source of goods,” § 646.608(1)(e), “by representing that 12 goods have characteristics, ingredients, quantities or qualities that the goods do not 13 have,” § 646.608(1)(g), “by representing that goods are of a particular standard, quality or 14 grade when they are of another,” and § 646.608(1)(i), “by advertising goods with intent 15 not to provide them as advertised.” (See CAC ¶ 102.) 16 As set forth earlier herein, Bryan has alleged facts sufficient to show Del Monte 17 knew it was misrepresenting its Products as natural. Cf. Silva v. Unique Beverage Co., 18 LLC, 2017 WL 2642286, at *9 (D. Or. June 15, 2017) (dismissing UTPA claim where 19 plaintiff “assert[ed] in conclusory fashion that [d]efendant willfully, recklessly, knowingly, 20 and intentionally violated O.R.S. § 646.608(1)(b), (e), and (g)”); Colquitt, 144 F. Supp. 3d 21 at 1231 (dismissing UTPA claim where “[p]laintiff d[id] not specifically plead willfulness by 22 [d]efendant”). 23 24 25 26 Accordingly, Bryan’s UTPA claim is not subject to dismissal for failure to allege willfulness. 5. Unjust Enrichment Claim (Count IV) Del Monte argues Bryan’s Unjust Enrichment claim fails, for the asserted reason 27 that “California does not recognize a separate cause of action for unjust enrichment.” 28 (See Def.’s Mot. at 18:23.) 16 United States District Court Northern District of California 1 Although Del Monte is correct that “unjust enrichment” itself is “not a cause of 2 action,” see McBride v. Boughton, 123 Cal. App. 4th 379, 387 (2004) (noting “[u]njust 3 enrichment” is a “general principle, underlying various legal doctrines and remedies”) 4 (internal quotation and citation omitted), the Ninth Circuit has recognized that “when a 5 plaintiff alleges unjust enrichment, a court may construe the cause of action as a quasi- 6 contract claim seeking restitution[,]” see Astiana v. Hain Celestial Grp., Inc., 783 F.3d 7 753, 762 (9th Cir. 2015) (internal quotation and citation omitted). In the instant case, the 8 Court will construe Bryan’s Unjust Enrichment claim as a standalone equitable claim, but 9 nonetheless finds the claim subject to dismissal, given Bryan’s failure to plausibly allege, 10 even in the alternative, that she lacks an adequate remedy at law. See Sonner v. 11 Premier Nutrition Corp., 971 F.3d 834, 843-44 (9th Cir. 2020) (holding “[plaintiff] must 12 establish that she lacks an adequate remedy at law before securing equitable 13 restitution”); see also In re Intel Corp. CPU Mktg., Sales Pracs. & Prod. Liab. Litig., 2021 14 WL 1198299, at *11 (D. Or. Mar. 29, 2021) (dismissing unjust enrichment claim pled “in 15 the alternative” where “[p]laintiffs ha[d] not alleged, even in the alternative, that they do 16 not have adequate legal remedies”). 17 Accordingly, Bryan’s Unjust Enrichment claim is subject to dismissal. CONCLUSION 18 19 20 For the reasons stated above, Del Monte’s motion to dismiss is hereby GRANTED in part and DENIED in part as follows: 21 1. To the extent Bryan seeks injunctive relief, the motion is GRANTED; 22 2. To the extent Bryan asserts in Count V claims under the laws of states other than 23 24 25 26 27 28 California or Oregon, the motion is GRANTED; 3. To the extent Bryan asserts claims based on any unidentified product, the motion is GRANTED; 4. To the extent Bryan asserts a claim for Unjust Enrichment, the motion is GRANTED; 5. In all other respects, the motion is DENIED. 17 1 As Del Monte has not shown leave to amend necessarily would, in all respects, be 2 futile, Bryan’s request for such leave is hereby GRANTED. If Bryan wishes to file a First 3 Amended Complaint to cure the above-noted deficiencies, she shall do so no later than 4 August 25, 2023. In the event Bryan does not file a First Amended Complaint by said 5 deadline, the above-titled action shall proceed on the remaining claims in the CAC. 6 7 IT IS SO ORDERED. 8 9 Dated: July 25, 2023 MAXINE M. CHESNEY United States District Judge 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18

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