Angerlia Martin v. Tradewinds Beverage Company

NOTICE OF MOTION AND MOTION to Dismiss Case

C.D. Cal.February 21, 2017

102579292 CASE NO. 16-CV-09249-PSG-MRW DEFENDANT'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CHRISTOPHER J. HEALEY (SBN 105798) JAIKARAN SINGH (SBN 201355) DENTONS US LLP 601 S. Figueroa Street, Suite 2500 Los Angeles, CA 90017-5704 Telephone: (213) 623-9300 Facsimile: (213) 623-9924 Email: chris.healey@dentons.com jai.singh@dentons.com JEFFREY M. GARROD (Admitted Pro Hac Vice) ORLOFF, LOWENBACH, STIFELMAN & SIEGEL, P.A. 101 Eisenhower Parkway, Suite 400 Roseland, NJ 07068-1097 Telephone: (973) 622-6200 Facsimile: (973) 622-3073 Email: jmg@olss.com Attorneys for Defendant Tradewinds Beverage Company UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ANGERLIA MARTIN, on behalf of herself, all others similarly situated, and the general public, Plaintiffs, v. TRADEWINDS BEVERAGE COMPANY, Defendant. Case No. 16-CV-09249-PSG-MRW CLASS ACTION DEFENDANT TRADEWINDS BEVERAGE COMPANY'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S COMPLAINT ORAL ARGUMENT REQUESTED Date: May 1, 2017 Time: 1:30 p.m. Judge: Hon. Philip S. Gutierrez Ctrm.: 6A Trial Date: Not Set Date Action Filed: 12/14/16 Case 2:16-cv-09249-PSG-MRW Document 23 Filed 02/21/17 Page 1 of 4 Page ID #:88 1 CASE NO. 16-CV-09249-PSG-MRW DEFENDANT'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on May 1, 2017, at 1:30 p.m., or as soon thereafter as the matter can be heard before the Honorable Philip S. Gutierrez of the United States District Court, Central District, Western Division, First Street Courthouse, located at 350 West 1st Street, Courtroom 6A, 6 th Floor, Los Angeles, California 90012-4565, defendant Tradewinds Beverage Company (“Tradewinds”) will and hereby does move the Court for dismissal of the Class Action Complaint filed by plaintiff Angerlia Martin (“Plaintiff”) in accordance with Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The Motion is based on the following grounds: First, the Complaint should be dismissed under the primary jurisdiction doctrine. Second, Plaintiff lacks standing under Article III of the U.S. Constitution and under Business & Professions Code section 17200 et seq. ("UCL"), Business & Professions Code section 17500 et seq.("FAL") and California Civil Code section 1750 et seq. ("CLRA") for lack of an actual injury in fact. Third, Plaintiff does not have standing to seek injunctive relief because there is no risk of future injury to her. Fourth, Plaintiff is “barred from any remedy” under California Uniform Commercial Code section 2607(A)(3) because of her failure to give Tradewinds mandatory notice of its allegedly misleading product labels prior to filing her Complaint. Fifth, Plaintiff fails to state a claim for violation of the UCL, FAL, CLRA and for Breach of Express and Implied Warranties because she has failed to plausibly allege key elements of these claims under Rule 8(a) of the Federal Rules of Civil Procedure. / / / Case 2:16-cv-09249-PSG-MRW Document 23 Filed 02/21/17 Page 2 of 4 Page ID #:89 102579292 - 2 - 16-CV-09249-PSG-MRW NOTICE OF DEFENDANT'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P 6 0 0 W E S T B R O A D W A Y , S U IT E 2 6 0 0 S A N D IE G O , C A L IF O R N IA 9 2 1 0 1 (6 1 9 ) 2 3 6 -1 4 1 4 Sixth, Plaintiff fails to state a claim for violation of the UCL, FAL and CLRA because she has not pleaded allegations with sufficient particularity under Rule 9(b) of the Federal Rules of Civil Procedure. Seventh, Plaintiff’s punitive damages claim should be dismissed because she fails to plausibly allege the required knowledge or intent in connection with Tradewinds’ alleged actions. This Motion is based on this Notice of Motion, the concurrently filed Memorandum of Points and Authorities, the Declaration of Robert Lawton and attached exhibits thereto, in support of this Motion, the Proposed Order and, the record and files of this case, and any other and further oral or documentary evidence introduced at the hearing on this Motion. In accordance with Local Civil Rule 7-3, Tradewinds' motion to dismiss is made following the conference of counsel that took place on February 16, 2017. Dated: February 21, 2017 Respectfully submitted, DENTONS US LLP By /s/Jaikaran Singh Christopher J. Healey Jaikaran Singh Email: chris.healey@dentons.com jai.singh@dentons.com Jeffrey M. Garrod (Admitted Pro Hac Vice) ORLOFF, LOWENBACH, STIFELMAN & SIEGEL, P.A. Email: jmg@olss.com Attorneys for Defendant Tradewinds Beverage Company Case 2:16-cv-09249-PSG-MRW Document 23 Filed 02/21/17 Page 3 of 4 Page ID #:90 102579292 3 CASE NO. 16-CV-09249-PSG-MRW CERTIFICATE OF SERVICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I, Jaikaran Singh, certify that I caused to be served upon the following counsel and parties of record a copy of the following document(s): DEFENDANT TRADEWINDS BEVERAGE COMPANY'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S COMPLAINT as indicated/listed on the United States District Court, Central District of California’s CM/ECF registered email list in the above-referenced matter. Jack Fitzgerald, Esq. Melanie Rae Persinger, Esq. Trevor M. Flynn, Esq. The Law Office of Jack Fitzgerald PC Hillcrest Professional Building 3636 Fourth Avenue, Ste. 202 San Diego, CA 92103 Telephone: 619.692.3840 Facsimile: 619.362.9555 Email: jack@jackfitzgeraldlaw.com trevor@jackfitzgeraldlaw.com melanie@jackfitzgeraldlaw.com Attorneys for Plaintiff I declare under penalty of perjury under the laws of the United States of America, that the foregoing is true and correct. Executed at San Diego, California. Dated: February 21, 2017 s/Jaikaran Singh Jaikaran Singh Case 2:16-cv-09249-PSG-MRW Document 23 Filed 02/21/17 Page 4 of 4 Page ID #:91 102579149 CASE NO. 16-CV-09249-PSG-MRW MEMORANDUM OF POINTS AND AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CHRISTOPHER J. HEALEY (SBN 105798) JAIKARAN SINGH (SBN 201355) DENTONS US LLP 601 S. Figueroa Street, Suite 2500 Los Angeles, CA 90017-5704 Telephone: (213) 623-9300 Facsimile: (213) 623-9924 Email: chris.healey@dentons.com jai.singh@dentons.com JEFFREY M. GARROD (Admitted Pro Hac Vice) ORLOFF, LOWENBACH, STIFELMAN & SIEGEL, P.A. 101 Eisenhower Parkway, Suite 400 Roseland, NJ 07068-1097 Telephone: (973) 622-6200 Facsimile: (973) 622-3073 Email: jmg@olss.com Attorneys for Defendant Tradewinds Beverage Company UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ANGERLIA MARTIN, on behalf of herself, all others similarly situated, and the general public, Plaintiffs, v. TRADEWINDS BEVERAGE COMPANY, Defendant. Case No. 16-CV-09249-PSG-MRW CLASS ACTION DEFENDANT TRADEWINDS BEVERAGE COMPANY'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT ORAL ARGUMENT REQUESTED Date: May 1, 2017 Time: 1:30 p.m. Judge: Hon. Philip S. Gutierrez Ctrm.: 6A Trial Date: Not Set Date Action Filed: 12/14/16 Case 2:16-cv-09249-PSG-MRW Document 23-1 Filed 02/21/17 Page 1 of 30 Page ID #:92 102579149 i CASE NO. 16-CV-09249-PSG-MRW MEMORANDUM OF POINTS AND AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page PRELIMINARY STATEMENT ...................................................................................................... 1 I. RELEVANT ALLEGATIONS AND FACTS ..................................................................... 2 II. LEGAL ARGUMENT ......................................................................................................... 3 A. The Complaint Should Be Dismissed Pursuant To The Primary Jurisdiction Doctrine .................................................................................................................... 3 B. Plaintiff’s Complaint Should Be Dismissed For Lack Of Article III and Statutory Standing .................................................................................................... 6 C. Plaintiff Has No Standing To Seek Injunctive Relief .............................................. 8 III. THE COMPLAINT SHOULD BE DISMISSED BECAUSE PLAINTIFF FAILED TO COMPLY WITH THE PRE-FILING NOTICE OBLIGATION IMPOSED ON HER BY THE UCC ........................................................................................................................... 10 IV. PLAINTIFF FAILS TO PLAUSIBLY ALLEGE THE ELEMENTS OF HER CAUSES OF ACTION OR TO ALLEGE HER MISREPRESENTATION-BASED CLAIMS WITH THE PARTICULARITY REQUIRED BY THE FEDERAL RULES .............................. 12 A. Plaintiff Did Not Plausibly Allege UCL, FAL & CLRA Claims .......................... 12 B. Plaintiff Did Not Allege UCL, FAL & CLRA Claims With The Particularity Required By Fed. R. Civ. P. 9(b) ...................................................... 16 C. Plaintiff Does Not Plausibly Allege Her Warranty Claims ................................... 19 V. PLAINTIFF'S PUNITIVE DAMAGES CLAIM SHOULD BE DISMISSED ................. 20 VI. CONCLUSION .................................................................................................................. 21 Case 2:16-cv-09249-PSG-MRW Document 23-1 Filed 02/21/17 Page 2 of 30 Page ID #:93 102579149 ii CASE NO. 16-CV-09249-PSG-MRW MEMORANDUM OF POINTS AND AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Cases In re 5-hour ENERGY Mktg. & Sales Pracs. Litig., No. 13-2438, 2014 WL 5311272 (C.D. Cal. Sept. 4, 2014) ............................... 18 Adkins v. Apple Inc., 147 F. Supp. 3d 913, 922 (N.D. Cal. 2014) ........................................................ 13 Anunziato v. eMachines, Inc., 402 F. Supp. 2d 1133 (C.D. Cal. 2005) ............................................................... 20 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................................................................ 12, 14, 19 Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753 (9th Cir.2015) .................................................................................. 5 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ............................................................................................ 12 Bird v. First Alert, Inc., No. C-14-3585, 2014 WL 7248734 (N.D. Cal. Dec. 19, 2014) .................. 1, 8, 14 Boris v. Wal-Mart Stores, Inc., 35 F. Supp. 3d 1163, 1174 (C.D. Cal. 2014), aff'd, 649 F. App’x 424 (9th Cir. 2016) ........................................................................................ 13, 17 Brown v. Hain Celestial Grp., Inc., 913 F. Supp. 2d 881, 898 (N.D. Cal. 2012) ........................................................ 15 Carrea v. Dreyer's Grand Ice Cream, Inc., No. C-10-01044, 2011 WL 159380 (N.D. Cal. Jan. 10, 2011), aff'd, 475 F. App’x 113 (9th Cir. 2012) .......................................................................... 7 Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163 (Cal. 1999) ................................................................................. 11 Cetacean Comm’y v. Bush, 386 F.3d 1169 (9th Cir. 2004) ............................................................................... 6 Clapper v. Amnesty Int'l USA, ___ U.S. ___, 133 S. Ct. 1138 (2013) ................................................................... 8 Clark v. Time Warner Cable, 523 F.3d 1110 (9th Cir. 2008) ........................................................................... 4, 5 Contreras v. Johnson & Johnson Consumer Cos., Inc., No. CV-12-7099, 2012 WL 12096581 (C.D. Cal. Nov. 29, 2012) ....................... 7 Case 2:16-cv-09249-PSG-MRW Document 23-1 Filed 02/21/17 Page 3 of 30 Page ID #:94 102579149 iii CASE NO. 16-CV-09249-PSG-MRW MEMORANDUM OF POINTS AND AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cortina v. Goya Foods, Inc., 94 F. Supp. 3d 1174, 1196 (S.D. Cal. 2015) ....................................................... 10 Daly v. Viacom, Inc., 238 F. Supp. 2d 1118 (N.D. Cal. 2002)............................................................... 16 Decarlo v. Costco Wholesale Corp., No. 14-cv-0202, 2015 WL 11822156 (S.D. Cal. Sept. 28, 2015) ....................... 16 Decerbo v. Melitta U.S.A. Inc., No. 8:16-cv-850, 2016 WL 7206244 (M.D. Fla. Oct. 17, 2016) ........................ 17 Delarosa v. Boiron, Inc., 275 F.R.D. 582 (C.D. Cal. 2011) ........................................................................ 20 Eclectic Props. East, LLC v. Marcus & Millichap Co., 751 F.3d 990 (9th Cir. 2014) ............................................................................... 12 Frenzel v. AliphCom, 76 F. Supp. 3d 999, 1015 (N.D. Cal. 2014) .......................................................... 8 Garrison v. Whole Foods Mkt. Grp., Inc., No. 13-cv-05222, 2014 WL 2451290 (N.D. Cal. June 2, 2014) ......................... 15 Gedalia v. Whole Foods Mkt. Servs., Inc., 53 F. Supp. 3d 943, 955, 958 (S.D. Tex. 2014) ............................................ 16, 19 Granfield v. NVIDIA Corp., No. C-11-05403, 2012 WL 2847575 (N.D. Cal. July 11, 2012) ........................... 7 Hairston v. S. Beach Beverage Co., Inc., No. CV-12-1429, 2012 WL 1893818 (C.D. Cal. May 18, 2012) ....................... 15 Ham v. Hain Celestial Grp., Inc., 70 F. Supp. 3d 1188, 1196 (N.D. Cal. 2014) ........................................................ 9 Hodgers-Durgin v. De la Vina, 199 F.3d 1037 (9th Cir. 1999) ............................................................................... 8 Hood v. Wholesoy & Co, Modesto Wholesoy Co. LLC, No. 12-cv-5550, 2013 WL 3553979 (N.D. Cal. July 12, 2013) ............................ 4 In re iPhone 4s Consumer Litig., 637 F. App’x 414 (9th Cir. 2016) ........................................................................ 17 Johns v. Bayer Corp., No. 09-CV-1935, 2010 WL 476688 (S.D. Cal. Feb. 9, 2010) .............................. 7 Kaiser Steel Corp. v. Westinghouse Elec. Corp., 55 Cal. App. 3d 737 (1976) ................................................................................. 11 Case 2:16-cv-09249-PSG-MRW Document 23-1 Filed 02/21/17 Page 4 of 30 Page ID #:95 102579149 iv CASE NO. 16-CV-09249-PSG-MRW MEMORANDUM OF POINTS AND AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Kane v. Chobani, LLC, 645 F. App’x 593 (9th Cir. 2016) .................................................................. 1, 4, 5 Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir. 2009) ....................................................................... 13, 17 Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) ................................................................... 15 Lee v. Am. Nat. Ins. Co., 260 F.3d 997 (9th Cir. 2001) ................................................................................. 6 Lucas v. Breg, Inc., ___ F. Supp. 3d ___, No. 15-cv-258, 2016 WL 6125681 (S.D. Cal. Sept. 30, 2016) ..................................................................................................... 13 Maya v. Centex Corp., 658 F.3d 1060 (9th Cir. 2011) ............................................................................... 7 Mayfield v. United States, 599 F.3d 964 (9th Cir. 2010) ................................................................................. 8 McCarthy v. United States, 850 F.2d 558 (9th Cir. 1988) ................................................................................. 9 McKinnis v. Kellogg USA, No. CV-07-2611, 2007 WL 4766060 (C.D. Cal. Sept. 19, 2007)....................... 14 Metowski v. Traid Corp., 104 Cal. Rptr. 599 (1972) .................................................................................... 11 Mlejnecky v. Olympus Imaging Am. Inc., No. 2:10-CV-02630, 2011 WL 1497096 (E.D. Cal. Apr. 19, 2011)..................... 7 Mocek v. Alfa Leisure, Inc., 7 Cal. Rptr. 3d 546 (Cal. Ct. App. 2003) ............................................................ 19 Munns v. Kerry, 782 F.3d 402 (9th Cir. 2015), cert. denied, ___ U.S. ___, 136 S. Ct. 1196 (2016) ............................................................................................................ 8 Nagy v. Nagy, 258 Cal. Rptr. 787 (1989) .................................................................................... 16 Pelayo v. Nestle USA, Inc., 989 F. Supp. 2d 973 (C.D. Cal. 2013) ..................................................... 13, 14, 15 Pollard v. Saxe & Yolles Dev. Co., 12 Cal. 3d 374 (1974) .......................................................................................... 12 Case 2:16-cv-09249-PSG-MRW Document 23-1 Filed 02/21/17 Page 5 of 30 Page ID #:96 102579149 v CASE NO. 16-CV-09249-PSG-MRW MEMORANDUM OF POINTS AND AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Reese v. Odwalla, Inc., 30 F. Supp. 3d 935, 941 (N.D. Cal. 2014)......................................................... 4, 5 Ries v. Hornell Brewing Co., Inc., No. 10-1139, 2010 WL 2943860 (N.D. Cal. July 23, 2010) ............................... 14 Rooney v. Cumberland Packing Corp., No. 12-CV-0033, 2012 WL 1512106 (S.D. Cal. Apr. 16, 2012) ........................ 14 Route v. Mead Johnson Nutrition Co., No. CV-12-7350, 2013 WL 658251 (C.D. Cal. Feb. 21, 2013) ............................ 7 Shalaby v. Bernzomatic, 281 F.R.D. 565 (S.D. Cal. 2012), aff'd, 584 F. App’x 419 (9th Cir. 2014) .................................................................................................................... 18 Sityar v. Wm. Wrigley Jr. Co., No. CV-10-5965, 2011 WL 13046850 (C.D. Cal. Mar. 2, 2011) ................. 13, 17 Spokeo, Inc. v. Robins, ___ U.S. ___, 136 S. Ct. 1540 (2016) ................................................................... 6 Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011), cert. den., 132 S.Ct. 2101 (2012) ...................... 13 Strumlauf v. Starbucks Corp., 192 F. Supp. 3d 1025, 1030 (N.D. Cal. 2016) ...................................................... 9 Swearingen v. Santa Cruz Nat., Inc., No. 13-cv-04291, 2016 WL 4382544 (N.D. Cal. Aug. 17, 2016) ...................... 10 Syntek Semiconductor Co. v. Microchip Tech. Inc., 307 F.3d 775 (9th Cir. 2002) ................................................................................. 4 Tom Trading, Inc. v. Better Blue, Inc., 26 F. App’x 733 (9th Cir. 2002) .......................................................................... 20 In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Pracs. & Prod. Liab. Litig., 754 F. Supp. 2d 1145 (C.D. Cal. 2010) ............................................................... 13 Vess v. Ciba-Geigy Corp. U.S.A., 317 F.3d 1097 (9th Cir.2003) .............................................................................. 16 Viggiano v. Hansen Nat. Corp., 944 F. Supp. 2d 877 (C.D. Cal. 2013) ........................................................... 19, 20 Viggiano v. Johnson, No. CV-14-7250, 2016 WL 5110500, at *2-3 (C.D. Cal. June 21, 2016) ...................................................................................................................... 5 Case 2:16-cv-09249-PSG-MRW Document 23-1 Filed 02/21/17 Page 6 of 30 Page ID #:97 102579149 vi CASE NO. 16-CV-09249-PSG-MRW MEMORANDUM OF POINTS AND AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Walsh v. Microsoft Corp., 63 F. Supp. 3d 1312, 1317-18 (W.D. Wash. 2014) .............................................. 6 Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136 (9th Cir. 2003) ............................................................................... 6 In re WellPoint, Inc. Out-of-Network UCR Rates Litig., 865 F. Supp. 2d 1002 (C.D. Cal. 2011) ............................................................... 19 White v. Lee, 227 F.3d 1214 (9th Cir.2000) ................................................................................ 6 Whitfield v. Jessup, 193 P.2d 1 (Cal. 1948) ................................................................................... 10, 11 Williams v. Gerber Prods. Co., 552 F.3d 934 (9th Cir.2008) ................................................................................ 14 Yumul v. Smart Balance, Inc., 733 F. Supp. 2d 1117 (C.D. Cal. 2010) ............................................................... 18 Constitutional Provisions United States Constitution Article III ................................................................................................... 1, 6, 7, 8 Consumer Legal Remedies Act ......................................................................... passim False Advertising Law ....................................................................................... passim Unfair Competition Law .................................................................................... passim Statutes 21 U.S.C. §341, et seq. ............................................................................................... 4 28 U.S.C. §1332(d)(2) ................................................................................................ 2 Uniform Commercial Code .................................................................... 10, 11, 12, 19 §2607(A)(3) ......................................................................................... 2, 10, 11, 12 Rules and Regulations 21 C.F.R. § 101.1 et seq., 131.200(d)(2), 168.110, 168.130 ...................................... 5 Federal Rules of Civil Procedure Rule 8 ................................................................................................................... 13 Rule 8(a) .............................................................................................................. 12 Rule 9(b) .................................................................................................. 16, 17, 19 Rule 12(b)(1) ................................................................................................. 1, 6, 9 Rule 12(b)(6) ................................................................................................... 1, 15 Case 2:16-cv-09249-PSG-MRW Document 23-1 Filed 02/21/17 Page 7 of 30 Page ID #:98 102579149 vii CASE NO. 16-CV-09249-PSG-MRW MEMORANDUM OF POINTS AND AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Other Authorities 80 Fed. Reg. 69905 (Nov. 12, 2015) .......................................................................... 5 Andrea Rock, “Peeling Back the 'Natural' Food Label,” Consumer Reports, January 29, 2016 ................................................................................... 18 FDA, “Use of the Term ‘Natural’ in the Labeling of Human Food Products.” at https://www.regulations.gov/docket?D=FDA-2014-N- 1207 (last visited February 16, 2017) .................................................................... 5 Nancy Gagliardi, “Consumers Want Healthy Foods--And Will Pay More For Them,” Forbes, Feb. 18, 2015 ............................................................. 18 Case 2:16-cv-09249-PSG-MRW Document 23-1 Filed 02/21/17 Page 8 of 30 Page ID #:99 102579149 1 CASE NO. 16-CV-09249-PSG-MRW MEMORANDUM OF POINTS AND AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PRELIMINARY STATEMENT Alleging that she was misled by the use of the word “natural” on the labels of eight different iced tea products sold by defendant Tradewinds Beverage Company (“Tradewinds”), plaintiff Angerlia Martin (“Plaintiff”) has asserted claims under the Unfair Competition Law (“UCL”), the False Advertising Law (“FAL”), the Consumer Legal Remedies Act (“CLRA”), as well as for breach of express and implied warranties. Tradewinds now moves for dismissal. In the first instance, this Court should dismiss the Complaint pursuant to the primary jurisdiction doctrine. The FDA, the agency reposed with the specific authority to regulate food labeling claims, is-at this very moment-engaged in rulemaking directed to formally defining the term “natural” for product labeling, which it has never previously done. As a result, within the past year, the Ninth Circuit held in Kane v. Chobani, LLC, 645 F. App’x 593, 594-95 (9th Cir. 2016), a case involving food labeling claims predicated as here, upon the allegedly misleading use of the term “natural,” that a district court should defer to the FDA’s rulemaking expertise and dismiss the action pursuant to the primary jurisdiction doctrine. This Court should follow the Ninth Circuit’s direction and dismiss this case. Alternatively, Plaintiff’s claims should be dismissed pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) to the extent she seeks relief based upon any of the five Tradewinds iced tea products she does not allege she purchased because she lacks both Article III and statutory standing to sue for lack of an actual injury in fact. Likewise, she does not have standing to seek injunctive relief, as there is no risk of future injury to her because she does not allege any intent to continue to purchase Tradewinds iced tea products, and more importantly, Tradewinds discontinued the use of terms like “all natural” on its labels in October 2015. Plaintiff’s remaining claims should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). First, as a matter of law, Plaintiff is “barred from any remedy” under Case 2:16-cv-09249-PSG-MRW Document 23-1 Filed 02/21/17 Page 9 of 30 Page ID #:100 102579149 2 CASE NO. 16-CV-09249-PSG-MRW MEMORANDUM OF POINTS AND AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 California Uniform Commercial Code (“UCC”) §2607(A)(3) by her failure to give Tradewinds mandatory notice of its allegedly misleading label prior to filing her Complaint. Second, Plaintiff has failed to plausibly allege key elements of her claims, let alone plead them with the particularity required for causes of action based on alleged misrepresentations. Specifically, Plaintiff has not plausibly alleged an objective definition of the term “natural,” as understood by a reasonable consumer; the extent to which the use of that term is material to a reasonable consumer; and how Tradewinds misused the term proximately causing damage to her. Plaintiff has also not plausibly alleged an injury. Third, in addition to her defective statutory claims, Plaintiff’s punitive damages claim should be dismissed because she fails to plausibly allege the required knowledge or intent in connection with Tradewinds’ alleged actions. I. RELEVANT ALLEGATIONS AND FACTS Subject matter jurisdiction is predicated upon 28 U.S.C. §1332(d)(2). (Dkt. 1 (Complaint), ¶5.) Plaintiff is a resident of Los Angeles County, California. (Id. at ¶3.) Tradewinds is an Ohio corporation maintaining its principal place of business in Carlisle, Ohio. (Id. at ¶4.) Plaintiff alleges that Tradewinds markets and sells eight varieties of iced tea products whose labels variously describe these products to be “natural” or to contain “natural” ingredients. (Id. at ¶8.) Plaintiff alleges that Tradewinds “intended to convince” consumers that the products in question were “natural” when they were not. (Id. at ¶15.) Plaintiff alleges that these products contain caramel color, an “artificial” ingredient. (Id. at ¶11.) She does not describe why caramel color is not “natural,” beyond generally claiming that the FDA “states” that “color additives” are “artificial.” (Id. at ¶12.) Plaintiff alleges she has only purchased three of the aforementioned products: Sweet Tea, Lemon Tea and Raspberry Tea. (Id. at ¶16.) Without providing any Case 2:16-cv-09249-PSG-MRW Document 23-1 Filed 02/21/17 Page 10 of 30 Page ID #:101 102579149 3 CASE NO. 16-CV-09249-PSG-MRW MEMORANDUM OF POINTS AND AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 detail, Plaintiff generally alleges that she began buying these three products in 2014. (Id.) The Complaint includes a picture of a one-gallon-size iced tea bottle, but does not include a picture of the other size(s), instead depicting only the shrink- wrap enveloping of a 12-bottle case. (Id. at ¶10.) Furthermore, she does not include any pictures of the “back” label listing the tea ingredients. In fact, the back labels of the bottles of Tradewinds’ iced tea products listed the ingredients contained in the products. (Declaration of Robert Lawton (“Lawton Decl.”), ¶¶3- 4.) Plaintiff alleges that she “was seeking an all-natural product” and relied on Tradewinds’ labels. (Dkt. 1 (¶17).) She alleges that some other consumers “usually seek out products with a ‘natural’ food label,” that some consumers “equate ‘natural’ claims with healthier foods,” and that some consumers may pay more for foods they believe to be healthier. (Id. at ¶14.) Plaintiff alleges that had the labels of the products she purchased not suggested the products contained “natural” ingredients, she “would only have been willing to pay less” for them, without stating how much less, “or unwilling to purchase them at all.” (Id. at ¶22.) That the Complaint omits the specific dates of Plaintiff’s purchases of these products is significant because in October 2015, Tradewinds discontinued the use of the term “all natural” and its equivalents on the labels of all the products referenced in the Complaint. 1 (Lawton Decl., ¶ 2.) II. LEGAL ARGUMENT A. The Complaint Should Be Dismissed Pursuant To The Primary Jurisdiction Doctrine The Court should dismiss the Complaint under the doctrine of primary jurisdiction because the central issue in this case-the meaning of the term 1 Notably absent from the Complaint are specific factual allegations as to what date did plaintiff purchase which variety of iced tea product(s) from what store. Instead, plaintiff makes general allegations of “typically” purchasing certain varieties of iced tea products over a vague time frame from a list of stores. (Id. at ¶16.) Case 2:16-cv-09249-PSG-MRW Document 23-1 Filed 02/21/17 Page 11 of 30 Page ID #:102 102579149 4 CASE NO. 16-CV-09249-PSG-MRW MEMORANDUM OF POINTS AND AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “natural”-is, at this very moment, being deliberated in a formal rulemaking process by the FDA, the federal agency vested with jurisdiction over this issue. The primary jurisdiction doctrine is invoked by a court when “an otherwise cognizable claim implicates technical and policy questions that should be addressed in the first instance by the agency with regulatory authority over the relevant industry rather than by the judicial branch.” Clark v. Time Warner Cable, 523 F.3d 1110, 1114 (9th Cir. 2008). In “considering the issue,” courts “have traditionally employed such factors as (1) the need to resolve an issue that (2) has been placed by Congress within the jurisdiction of an administrative body having regulatory authority (3) pursuant to a statute that subjects an industry or activity to a comprehensive regulatory authority that (4) requires expertise or uniformity in administration.” Syntek Semiconductor Co. v. Microchip Tech. Inc., 307 F.3d 775, 781 (9th Cir. 2002). “Normally, if the court concludes that the dispute which forms the basis of the action is within the agency’s primary jurisdiction, the case should be dismissed without prejudice.” Id. at 782. The regulation of food labels is an issue “as to which Congress vested the FDA with comprehensive regulatory authority,” warranting invocation of the doctrine. Reese v. Odwalla, Inc., 30 F. Supp. 3d 935, 941 (N.D. Cal. 2014) (citing 21 U.S.C. §341, et seq.). Where, as here, the “determination of a plaintiff's claim would require a court to decide an issue committed to the FDA's expertise without a clear indication of how FDA would view the issue,” dismissal is particularly appropriate. Hood v. Wholesoy & Co, Modesto Wholesoy Co. LLC, No. 12-cv- 5550, 2013 WL 3553979, at *5 (N.D. Cal. July 12, 2013) (collecting cases). The Ninth Circuit recently came to this conclusion in vacating a district court’s order for failing to invoke the doctrine in this very same situation. See Kane, 645 F. App’x at 594-95. In Kane, 645 F. App’x 593, the plaintiff alleged that the defendant was “deceptively … label[ing] its yogurt as ‘natural.’” Id. at 594. The Ninth Circuit held that the district court erred in refusing to apply the doctrine: Case 2:16-cv-09249-PSG-MRW Document 23-1 Filed 02/21/17 Page 12 of 30 Page ID #:103 102579149 5 CASE NO. 16-CV-09249-PSG-MRW MEMORANDUM OF POINTS AND AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The delineation of the scope and permissible usage of the term[] “natural” … in connection with food products “‘implicates technical and policy questions that should be addressed in the first instance by the agency with regulatory authority over the relevant industry rather than by the judicial branch.’” Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 760 (9th Cir.2015) (quoting Clark v. Time Warner Cable, 523 F.3d 1110, 1114 (9th Cir.2008)); see also 21 C.F.R. § 101.1 et seq., 131.200(d)(2), 168.110, 168.130. Id.; see also Viggiano v. Johnson, No. CV-14-7250, 2016 WL 5110500, at *2-3 (C.D. Cal. June 21, 2016). According to the Ninth Circuit in Kane, “ongoing FDA proceedings regarding the term[] ‘natural’” suggested that the FDA had “expressed … interest in the subject matter of the litigation.” Kane, 645 F. App’x at 594-95. In particular, the court noted that “the FDA [has] issued a request for comments regarding the use of the term ‘natural’ in connection with food product labeling.” Id. (citing 80 Fed. Reg. 69905 (Nov. 12, 2015)); see also Reese, 30 F. Supp. 3d at 940, 942 (concluding the “FDA’s action clearly indicates that the agency is exercising its authority in this area” where the FDA similarly called for comments on the labeling of “evaporated cane juice”). Since Kane, the FDA’s comment period has closed and a new rule on the use of the term “natural” is reasonably anticipated to be forthcoming. See FDA, “Use of the Term ‘Natural’ in the Labeling of Human Food Products.” 2 Accordingly, this Court should follow the Ninth Circuit’s lead in Kane and invoke the doctrine of primary jurisdiction to dismiss this action in deference to the FDA’s primary role in defining the term “natural” for product labeling. / / / / / / / / / 2 Available at https://www.regulations.gov/docket?D=FDA-2014-N-1207 (last visited February 16, 2017). Case 2:16-cv-09249-PSG-MRW Document 23-1 Filed 02/21/17 Page 13 of 30 Page ID #:104 102579149 6 CASE NO. 16-CV-09249-PSG-MRW MEMORANDUM OF POINTS AND AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Plaintiff’s Complaint Should Be Dismissed For Lack Of Article III and Statutory Standing Plaintiff’s claims are based on the allegedly misleading labeling of eight Tradewinds products (Dkt. 1 (¶8)), yet she alleges that she has purchased only three of them: Sweet Tea, Lemon Tea and Raspberry Tea. (Id. at ¶16.) Plaintiff lacks both Article III and statutory standing to assert claims as to the five Tradewinds products she did not purchase. Therefore, the Complaint must be dismissed as to them pursuant to Fed. R. Civ. P. 12(b)(1). See White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000). Federal courts do not have subject matter jurisdiction over lawsuits brought by plaintiffs lacking Article III standing. Cetacean Comm’y v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004); see Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1140 (9th Cir. 2003) (standing is “an indispensable part of the plaintiff’s case”). This rule applies to named plaintiffs in class action suits. Spokeo, Inc. v. Robins, ___ U.S. ___, 136 S. Ct. 1540, 1543 (2016). In Spokeo, the Supreme Court reaffirmed “the irreducible constitutional minimum of standing consists of three elements”: “The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. at 1547. In the context of claims based on alleged unfair practices in connection with the sale of a product, the Ninth Circuit has held that a plaintiff must “buy” the product to be able to claim she “has actually been injured by the defendant's challenged conduct.” Lee v. Am. Nat. Ins. Co., 260 F.3d 997, 1001 (9th Cir. 2001). Accordingly, courts in this Circuit have, as a matter of course, dismissed class action claims for lack of standing as to products not purchased by the named plaintiff. See e.g., Walsh v. Microsoft Corp., 63 F. Supp. 3d 1312, 1317-18 (W.D. Wash. 2014). These courts have not allowed the inclusion of other, “similar” products not purchased by the plaintiff herself in the class claims, holding that such Case 2:16-cv-09249-PSG-MRW Document 23-1 Filed 02/21/17 Page 14 of 30 Page ID #:105 102579149 7 CASE NO. 16-CV-09249-PSG-MRW MEMORANDUM OF POINTS AND AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a plaintiff’s “use of the class action procedure cannot serve to expand her substantive rights.” Contreras v. Johnson & Johnson Consumer Cos., Inc., No. CV- 12-7099, 2012 WL 12096581, at *2 (C.D. Cal. Nov. 29, 2012). Thus, in Contreras, upon finding that the plaintiff did not purchase three out of the four products upon which her claim was based, the court dismissed the class action claim as to those products: Whether or not all four products share things in common for purposes of demonstrating commonality, typicality or predominance is effectively irrelevant to the question of whether Plaintiff herself has suffered an injury in fact with regard to all four products. She has not. She purchased only one, and may therefore maintain this action only with respect to that product. Id.; see also Route v. Mead Johnson Nutrition Co., No. CV-12-7350, 2013 WL 658251, at *3-4 (C.D. Cal. Feb. 21, 2013); Granfield v. NVIDIA Corp., No. C-11- 05403, 2012 WL 2847575, at *6 (N.D. Cal. July 11, 2012); Carrea v. Dreyer's Grand Ice Cream, Inc., No. C-10-01044, 2011 WL 159380, at *3 (N.D. Cal. Jan. 10, 2011), aff'd, 475 F. App’x 113 (9th Cir. 2012). For these same reasons, Plaintiff also lacks statutory standing to sue for violation of the UCL, FAL or CLRA based on products she did not purchase. A plaintiff does not have a claim for relief from the violation of a statute if she does not possess statutory standing to sue for its redress. See Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011). It has been held, in the wake of the passage of Proposition 64, that in order to “establish standing under the UCL, FAL and CLRA, a plaintiff must,” as with Article III standing, plausibly “allege that he or she suffered an ‘injury in fact’ and ‘has lost money or property’ as a result of a defendant's alleged conduct.” Carrea, 2011 WL 159380, at *2. The failure to purchase the products she claims to be deceptively labeled robs the plaintiff of standing to pursue statutory class action claims based on those products. Id.; see also Mlejnecky v. Olympus Imaging Am. Inc., No. 2:10-CV-02630, 2011 WL 1497096, at *4 (E.D. Cal. Apr. 19, 2011); Johns v. Bayer Corp., No. 09-CV-1935, Case 2:16-cv-09249-PSG-MRW Document 23-1 Filed 02/21/17 Page 15 of 30 Page ID #:106 102579149 8 CASE NO. 16-CV-09249-PSG-MRW MEMORANDUM OF POINTS AND AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2010 WL 476688, at *4 (S.D. Cal. Feb. 9, 2010). Accordingly, the Complaint should be dismissed for lack of Article III and statutory standing to assert claims as to the five products Plaintiff did not purchase. C. Plaintiff Has No Standing To Seek Injunctive Relief In general, “[p]ast exposure to harmful … conduct does not necessarily confer standing to seek injunctive relief if the plaintiff does not continue to suffer adverse effects.” Munns v. Kerry, 782 F.3d 402, 411 (9th Cir. 2015), cert. denied, ___ U.S. ___, 136 S. Ct. 1196 (2016) (citing Mayfield v. United States, 599 F.3d 964, 970 (9th Cir. 2010)) (further citations omitted). “Despite being harmed in the past,” a plaintiff “must still show that the threat of injury in the future is ‘certainly impending’ or … presents a ‘substantial risk’ of recurrence for the court to hear [her] claim for prospective relief.” Id. (quoting Clapper v. Amnesty Int'l USA, ___ U.S. ___, 133 S. Ct. 1138, 1147, 1150 n.5 (2013)). “A plaintiff who has no intention of purchasing a product in the future has no standing to seek prospective injunctive relief” because there is no future threat of injury or risk of recurrence. Bird v. First Alert, Inc., No. C-14-3585, 2014 WL 7248734, at *5 (N.D. Cal. Dec. 19, 2014). In turn, “[a] plaintiff who is not himself entitled to seek injunctive relief may not represent a class that seeks such relief.” Frenzel v. AliphCom, 76 F. Supp. 3d 999, 1015 (N.D. Cal. 2014) (citing Hodgers- Durgin v. De la Vina, 199 F.3d 1037, 1045 (9th Cir. 1999)). Therefore, a plaintiff seeking to represent a putative class “must allege that [she] intends to purchase the product at issue in the future.” Id. Plaintiff lacks Article III and statutory standing to obtain injunctive relief for any of her statutory claims because she has failed to allege that she intends to purchase the allegedly offending Tradewinds’ iced tea products in the future. (Dkt. 1 (¶¶45, 53, 59).) / / / / / / Case 2:16-cv-09249-PSG-MRW Document 23-1 Filed 02/21/17 Page 16 of 30 Page ID #:107 102579149 9 CASE NO. 16-CV-09249-PSG-MRW MEMORANDUM OF POINTS AND AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Moreover, consumers suing for past injuries borne of allegedly misleading food labels are not entitled to injunctive relief because, having realized that they have been misled with sufficient clarity to go to court, they cannot plausibly claim a “substantial risk” of being misled again by the same labels. Ham v. Hain Celestial Grp., Inc., 70 F. Supp. 3d 1188, 1196 (N.D. Cal. 2014) (“Consumers who were misled by deceptive food labels lack standing for injunctive relief because there is no danger that they will be misled in the future.”) (quotations omitted). The court in Strumlauf v. Starbucks Corp., 192 F. Supp. 3d 1025, 1030 (N.D. Cal. 2016), put it aptly: Plaintiffs allege that they were “induced” to purchase Starbucks lattes by Defendant's misrepresentations and omissions, … and had they known that the lattes were underfilled, they would not have purchased them on the same terms. … Now they know. As in Strumlauf, plaintiff alleges here that she would not have purchased the products at issue for as much money-or any amount of money-had she known the truth. (Dkt. 1 (¶22).) Plaintiff therefore cannot plausibly allege that she will purchase the products again and suffer the same injury. Furthermore, Tradewinds discontinued the use of the term “all natural” and its equivalents on its labels in October 2015. 3 (Lawton Decl. at ¶ 2.) Therefore, even if Plaintiff were to buy the contested products again, she could not possibly be injured because the allegedly “misleading” label content has been removed. Accordingly, her claims for injunctive relief should be dismissed. / / / / / / / / / / / / / / / 3 “[W]hen considering a motion to dismiss pursuant to Rule 12(b)(1), the district court is not restricted to the face of the pleadings.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). Case 2:16-cv-09249-PSG-MRW Document 23-1 Filed 02/21/17 Page 17 of 30 Page ID #:108 102579149 10 CASE NO. 16-CV-09249-PSG-MRW MEMORANDUM OF POINTS AND AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. THE COMPLAINT SHOULD BE DISMISSED BECAUSE PLAINTIFF FAILED TO COMPLY WITH THE PRE-FILING NOTICE OBLIGATION IMPOSED ON HER BY THE UCC The Complaint should be dismissed in its entirety as a matter of law because Plaintiff is “barred from any remedy” by her failure to comply with the pre-filing notice obligation imposed on her by UCC section 2607(A)(3), which provides: Where a tender has been accepted … [t]he buyer must, within a reasonable time after he or she discovers or should have discovered any breach, notify the seller of breach or be barred from any remedy. [Emphasis supplied.] This statutory bar has been applied in consumer class actions such as this. See, e.g., Swearingen v. Santa Cruz Nat., Inc., No. 13-cv-04291, 2016 WL 4382544 (N.D. Cal. Aug. 17, 2016). In Swearingen, the district court dismissed with prejudice express and implied warranty class claims, alleging that a beverage manufacturer misleadingly labeled the sugar content of certain soft drinks, because the plaintiff failed to plead that he provided the defendant with any notice of the claimed labeling problem prior to filing his complaint. Id. at *11. The court reached the same result in Cortina v. Goya Foods, Inc., 94 F. Supp. 3d 1174, 1196 (S.D. Cal. 2015), noting that the plaintiffs had “fail[ed] to provide any evidence or point to any pleadings that show they provided the requisite notice.” Plaintiff pleads that she “purchased” and “paid” for three of Tradewinds’ iced tea products. (Dkt. 1 (¶¶16, 22).) Purchasing these goods and accepting the tender triggered her mandatory pre-filing notice obligation under Section 2607(A)(3). As in Swearingen and Cortina, Plaintiff has not pled that she has provided Tradewinds with the notice required by Section 2607(A)(3). The UCC’s “barred from any remedy” mandate applies to all of plaintiff’s claims, including her UCL, FAL, and CLRA causes of action. In Whitfield v. Jessup, 193 P.2d 1, 2 (Cal. 1948), the Supreme Court of California held that the UCC’s “barred from any remedy” mandate applies to sales of food products, Case 2:16-cv-09249-PSG-MRW Document 23-1 Filed 02/21/17 Page 18 of 30 Page ID #:109 102579149 11 CASE NO. 16-CV-09249-PSG-MRW MEMORANDUM OF POINTS AND AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “whether an action thereon be said to sound in tort or contract.” Applying the Whitfield rule, the California Court of Appeal determined that “the statutory demand for notice applie[d]” in a consumer class action, even though the action was “framed according to a tort theory,” and held that “element of timely notice by each plaintiff” must ultimately be “shown.” Metowski v. Traid Corp., 104 Cal. Rptr. 599, 602-04 (1972). Applying the UCC’s “barred from any remedy” mandate to all of plaintiff’s claims has a sound policy rationale. Where the Legislature has established the precise procedures and extent of liability of a seller of allegedly non-conforming goods, a court should not allow a plaintiff to impose liability for those same non- conforming goods that would directly conflict with UCC’s “barred from any remedy” mandate. Cf. Kaiser Steel Corp. v. Westinghouse Elec. Corp., 55 Cal. App. 3d 737, 747 (1976) (affirming dismissal of plaintiff’s tort cause of action based on products liability by reasoning that “[b]ecause the Legislature through the adoption of the Uniform Commercial Code has defined the precise conditions to, and extent of, liability for defective products in situations covered by the code, we must not, in deference to the Legislature, create rules of liability which displace those of the Uniform Commercial Code.”). This reasoning has been applied to statutory consumer protection claims, such as those asserted by Plaintiff. For example, the California Supreme Court held that a plaintiff is specifically precluded from constructing a cause of action under the UCL when the Legislature has elsewhere erected a bar to relief. See Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163, 184 (Cal. 1999) (“[A] plaintiff may not bring an action under the unfair competition law if some other provision bars it.”). The Legislature has done just that here through the UCC’s “barred from any remedy” mandate under Section 2607(A)(3). Allowing Plaintiff to proceed in defiance of the statutory mandate not only displaces the procedures and framework established by the UCC as a whole, but Case 2:16-cv-09249-PSG-MRW Document 23-1 Filed 02/21/17 Page 19 of 30 Page ID #:110 102579149 12 CASE NO. 16-CV-09249-PSG-MRW MEMORANDUM OF POINTS AND AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 specifically frustrates the purpose of the Section 2607(A)(3) notice requirement. “The requirement of notice of breach is based on a sound commercial rule designed to allow the defendant opportunity for repairing the defective item, reducing damages, avoiding defective products in the future, and negotiating settlements.” Pollard v. Saxe & Yolles Dev. Co., 12 Cal. 3d 374, 380 (1974). “The notice requirement also protects against stale claims.” Id. If Plaintiff is allowed to evade the UCC’s bar and pursue her identical allegations based upon an alternative theory, Tradewinds will be unfairly exposed to liability based on obligations that are otherwise governed by the UCC, with no corresponding opportunity to mitigate any damages or consider the claim prior to the plaintiff bringing suit, which, as here, was filed over a year after the allegedly offending labels were discontinued. As Plaintiff did not satisfy her mandatory obligation to give Tradewinds pre- filing notice of her claims, nor has she alleged to have done so, she is “barred from any remedy” by Section 2607(A)(3) and her Complaint should be dismissed with prejudice. IV. PLAINTIFF FAILS TO PLAUSIBLY ALLEGE THE ELEMENTS OF HER CAUSES OF ACTION OR TO ALLEGE HER MISREPRESENTATION-BASED CLAIMS WITH THE PARTICULARITY REQUIRED BY THE FEDERAL RULES A. Plaintiff Did Not Plausibly Allege UCL, FAL & CLRA Claims As the United States Supreme Court has recognized, a “claim has facial plausibility” under Fed. R. Civ. P. 8(a) only “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “Determining whether a complaint states a plausible claim for relief will … be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679; Eclectic Props. East, LLC v. Marcus & Millichap Co., 751 F.3d 990, 995-996 (9th Cir. 2014). Case 2:16-cv-09249-PSG-MRW Document 23-1 Filed 02/21/17 Page 20 of 30 Page ID #:111 102579149 13 CASE NO. 16-CV-09249-PSG-MRW MEMORANDUM OF POINTS AND AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As the Ninth Circuit has explained, two principles animate the Rule 8 pleading requirement. “First, to be entitled to the presumption of truth, allegations in a complaint … may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011), cert. den., 132 S.Ct. 2101 (2012). “Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation. Id. at 1216. It has been held that UCL, FAL and CLRA claims founded upon an allegation of a “fraudulent course of conduct” are akin to fraud causes of action and, therefore, must satisfy the appropriate elements. Kearns v. Ford Motor Co., 567 F.3d 1120, 1125-26 (9th Cir. 2009); In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Pracs. & Prod. Liab. Litig., 754 F. Supp. 2d 1145, 1170 (C.D. Cal. 2010). The crux of Plaintiff’s UCL, FAL and CLRA claims sounds in fraud because these claims are based on her allegation that Tradewinds “intended to convince” consumers that the products in question were “natural,” when they were not. (Dkt. 1 (¶15)). Kearns, 567 F.3d at 1125-27; Boris v. Wal-Mart Stores, Inc., 35 F. Supp. 3d 1163, 1174 (C.D. Cal. 2014), aff'd, 649 F. App’x 424 (9th Cir. 2016); Sityar v. Wm. Wrigley Jr. Co., No. CV-10-5965, 2011 WL 13046850, at *4 (C.D. Cal. Mar. 2, 2011). Plaintiff's reliance on a misrepresentation theory obligated her to plead the requisite elements of fraud, including materiality, reliance, causation and injury. Kearns, 567 F.3d at 1126-27; Adkins v. Apple Inc., 147 F. Supp. 3d 913, 922 (N.D. Cal. 2014); Lucas v. Breg, Inc., ___ F. Supp. 3d ___, No. 15-cv-258, 2016 WL 6125681, at *12-13 (S.D. Cal. Sept. 30, 2016). In addition, “[c]laims made under these statutes are governed by the ‘reasonable consumer’ test which focuses on whether ‘members of the public are likely to be deceived.’” Pelayo v. Nestle USA, Inc., 989 F. Supp. 2d 973, 977 Case 2:16-cv-09249-PSG-MRW Document 23-1 Filed 02/21/17 Page 21 of 30 Page ID #:112 102579149 14 CASE NO. 16-CV-09249-PSG-MRW MEMORANDUM OF POINTS AND AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (C.D. Cal. 2013) (quoting Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir.2008)). Plaintiff's Complaint fails to plausibly allege a UCL, FAL or CLRA claim, warranting dismissal of the First, Second and Third Causes of Action under Iqbal. First, the Complaint fails to plausibly allege that a “reasonable consumer” would be deceived by the labeling in question. See Pelayo, 989 F. Supp. 2d 973. Pelayo is directly on point. The plaintiff in Pelayo made substantially the same allegation as the one at bar: that the “all natural” labeling on the defendant’s product was misleading because the product allegedly contained some ingredients that were “unnatural, artificial, or synthetic.” Id. at 978. The Court held this was not a plausible allegation because the plaintiff “fail[ed] to offer an objective or plausible definition of the phrase ‘All Natural.’” Id. The Court noted the difficulty of applying the definitions of “natural” advanced by the plaintiff to “products manufactured in mass,” holding that a “reasonable consumer is aware that” such products “are not … springing fully- formed from … trees and … bushes.” Id.; Rooney v. Cumberland Packing Corp., No. 12-CV-0033, 2012 WL 1512106, at *4 (S.D. Cal. Apr. 16, 2012) (use of the term “natural” would not lead reasonable consumer to believe sugar was unprocessed). Furthermore, the Pelayo court held that the FDA’s only treatment of the term “natural” was an “informal statement” from 1991, which “does not establish a legal requirement.” Pelayo, 989 F. Supp. 2d at 979 (quoting Ries v. Hornell Brewing Co., Inc., No. 10-1139, 2010 WL 2943860, at *5 (N.D. Cal. July 23, 2010)); see McKinnis v. Kellogg USA, No. CV-07-2611, 2007 WL 4766060, at *4 (C.D. Cal. Sept. 19, 2007) (dismissing claim of improper use of the term “natural fruit flavors”). In asserting substantially identical claims, Plaintiff makes no attempt to cite an “objective or plausible definition” of “natural,” relying solely on the FDA, Case 2:16-cv-09249-PSG-MRW Document 23-1 Filed 02/21/17 Page 22 of 30 Page ID #:113 102579149 15 CASE NO. 16-CV-09249-PSG-MRW MEMORANDUM OF POINTS AND AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 which has only issued an informal, non-binding statement on the matter. Pelayo, 989 F. Supp. 2d at 978. Nor has Plaintiff alleged that a reasonable consumer would even be aware of the FDA’s informal statement. See Garrison v. Whole Foods Mkt. Grp., Inc., No. 13-cv-05222, 2014 WL 2451290, at *3 (N.D. Cal. June 2, 2014). Accordingly, Plaintiff’s UCL, FAL and CLRA claims should be consigned to the same fate as those in Pelayo -- dismissal with prejudice. Plaintiff’s allegations of misrepresentation are also implausible when considering the label as a whole. See Brown v. Hain Celestial Grp., Inc., 913 F. Supp. 2d 881, 898 (N.D. Cal. 2012) (“[T]he key inquiry is whether a statement is misleading in the context of the entire label.”). The back label of each Tradewinds product at issue here lists all the ingredients contained in said products, including coloring-related ingredients. (Lawton Decl., Exhs. “A,” “B,” “C” (noting the presence of “caramel color”).) 4 Thus, “to the extent there is any ambiguity regarding the definition of [‘natural’,] … it is clarified by the detailed information contained in the ingredient list.” Pelayo, 989 F. Supp. 2d at 980 (collecting cases); Hairston v. S. Beach Beverage Co., Inc., No. CV-12-1429, 2012 WL 1893818, at *5 (C.D. Cal. May 18, 2012) (“[T]o the extent there is any ambiguity,” about the meaning of “all natural with vitamins,” it is “clarified by the detailed information contained in the ingredient list, which explains the exact contents of” the beverage.). In this case, the facts alleged by Plaintiff do not give rise to a plausible inference that, when looking at the label as a whole, a reasonable consumer would be misled as to what the ingredients of the products at issue actually are. This is 4 On a 12(b)(6) motion addressing a claim based on an allegedly offensive communication, such as the label in this case, the court may consider not only the part of communication attached to or mentioned in the complaint, but also “all parts of the communication that are ordinarily heard or read with it.” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (affirming dismissal of claim where the district court considered parts of an allegedly offending website other than those attached to the complaint). Case 2:16-cv-09249-PSG-MRW Document 23-1 Filed 02/21/17 Page 23 of 30 Page ID #:114 102579149 16 CASE NO. 16-CV-09249-PSG-MRW MEMORANDUM OF POINTS AND AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 particularly so when the use of the term “natural” on the relevant labels does not misrepresent any widely accepted or legally sanctioned definition. See Gedalia v. Whole Foods Mkt. Servs., Inc., 53 F. Supp. 3d 943, 955, 958 (S.D. Tex. 2014) (applying California law). Second, Plaintiff does not plausibly allege an injury. As noted, the Complaint states that Plaintiff “would only have been willing to pay less” for the products in question “or unwilling to purchase them at all” had she known that they were not “natural.” (Dkt. 1 (¶22).) This oddly noncommittal formulation is not a plausible allegation of an injury in fact. In California, an “allegation of a definite amount of damage is essential to stating a cause of action.” Nagy v. Nagy, 258 Cal. Rptr. 787, 790 (1989); Daly v. Viacom, Inc., 238 F. Supp. 2d 1118, 1126 (N.D. Cal. 2002). For example, in Decarlo v. Costco Wholesale Corp., No. 14-cv-0202, 2015 WL 11822156, at *3 (S.D. Cal. Sept. 28, 2015), the plaintiff alleged “that he ‘likely’ overpaid by between $14.85 and $21.45 for his eyewear at Costco.” Although the plaintiff alleged price terms, the court deemed his allegation insufficient because he did not specifically demonstrate that “the particular eyewear he purchased was in fact $14.85 to $21.45 more than he would have paid for the same eyewear from other retailers in the same market.” Id. By comparison, Plaintiff’s allegations regarding damages are wholly conclusory and not plausible. She does not allege any price terms or how much less she would pay for the products were it not for their “natural” label. B. Plaintiff Did Not Allege UCL, FAL & CLRA Claims With The Particularity Required By Fed. R. Civ. P. 9(b) Fed. R. Civ. P. 9(b) states that “[i]n alleging fraud…, a party must state with particularity the circumstances constituting fraud….” Both allegations of fraud and allegations that “sound in fraud” must be pleaded with particularity. Vess v. Ciba- Case 2:16-cv-09249-PSG-MRW Document 23-1 Filed 02/21/17 Page 24 of 30 Page ID #:115 102579149 17 CASE NO. 16-CV-09249-PSG-MRW MEMORANDUM OF POINTS AND AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Geigy Corp. U.S.A., 317 F.3d 1097, 1103-05 (9th Cir.2003). The Ninth Circuit has explained this demanding standard: Rule 9(b) demands that the circumstances constituting the alleged fraud “be ‘specific enough to give defendants notice of the particular misconduct ... so that they can defend against the charge and not just deny that they have done anything wrong.’” Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001) (quoting Neubronner v. Milken, 6 F.3d 666, 671 (9th Cir. 1993)). “Averments of fraud must be accompanied by ‘the who, what, when, where, and how’ of the misconduct charged.” Vess, 317 F.3d at 1106 (quoting Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir.1997)). A party alleging fraud must “set forth more than the neutral facts necessary to identify the transaction.” In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1548 (9th Cir.1994), superceded by statute on other grounds. Kearns, 567 F.3d at 1124. Plaintiff’s misrepresentation-based UCL, FAL and CLRA claims fail to meet the particularity pleading standard to which they are subject. Kearns, 567 F.3d at 1125-27; In re iPhone 4s Consumer Litig., 637 F. App’x 414, 415 (9th Cir. 2016) (applying Rule 9(b) to claims under these statutes because they are “grounded in fraud”); Boris, 35 F. Supp. 3d at 1174; Sityar, 2011 WL 13046850, at *4. First, as to the alleged misrepresentation, the Complaint fails to supply the “how” and “when” with any degree of specificity. The Complaint does not provide a picture of each product allegedly mislabeled, or even a complete picture of any single product label. Given the legal significance of the disambiguation that may be provided by the list of ingredients appearing on the label, this deficiency is fatal. Where the alleged “representations made on the face of the … packaging [are] central to … the claims in [the] lawsuit,” the plaintiff is obligated to “attach … clear, accurate, and complete images of the allegedly offending packaging.” Decerbo v. Melitta U.S.A. Inc., No. 8:16-cv-850, 2016 WL 7206244, at *4 (M.D. Fla. Oct. 17, 2016). An even more fatal legal deficiency is Plaintiff’s failure to specify when and where she made her purchases of Tradewinds’ products, beyond generally claiming Case 2:16-cv-09249-PSG-MRW Document 23-1 Filed 02/21/17 Page 25 of 30 Page ID #:116 102579149 18 CASE NO. 16-CV-09249-PSG-MRW MEMORANDUM OF POINTS AND AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that they commenced sometime in 2014 and "typically" occurred at a group of stores. (Dkt. 1 (¶16)). This Court has dismissed a food labeling class action because the plaintiff failed to allege “when during the [class] period … she saw or heard the particular representations upon which her complaint is based.” Yumul v. Smart Balance, Inc., 733 F. Supp. 2d 1117, 1124 (C.D. Cal. 2010); see also In re 5- hour ENERGY Mktg. & Sales Pracs. Litig., No. 13-2438, 2014 WL 5311272, at *18 (C.D. Cal. Sept. 4, 2014). The timing element is particularly crucial where, as here, the packaging in question changed during the relevant period, as Tradewinds discontinued use of the term “all natural,” and its equivalents, on its product labels in October 2015. Yumul, 733 F. Supp. 2d at 1124. Under these circumstances, it is inappropriate to allow Plaintiff to maintain claims sounding in fraud. Second, the Complaint fails to plead the indispensable elements of materiality and reliance with the requisite particularity. In attempting to allege the materiality of the labeling misrepresentation to a reasonable consumer, the Complaint does nothing more than refer to a non-evidential survey and allege generalities about purported preferences for healthy or natural foods. 5 A single two-year-old survey allegedly shows that many consumers are willing to pay more for “healthier foods,” including foods they deem to be “natural,” but that consumers are “very savvy” and, therefore, “skeptical when it comes to food manufacturers’ claims.” 6 (Dkt. 1 (¶14).) The other survey supposedly shows that many consumers buy products with a “natural” food label, but would only pay more for such foods “if the term met all of their expectations.” 7 (Id.) Plaintiff cannot plead an element of her causes of action based solely on these hearsay statements. Shalaby v. 5 The Complaint does not identify how the survey used or defined the term “natural” and does not identify if the survey’s respondents qualify as “reasonable consumer[s].” 6 Nancy Gagliardi, “Consumers Want Healthy Foods--And Will Pay More For Them,” Forbes, Feb. 18, 2015. 7 Andrea Rock, “Peeling Back the 'Natural' Food Label,” Consumer Reports, January 29, 2016. Case 2:16-cv-09249-PSG-MRW Document 23-1 Filed 02/21/17 Page 26 of 30 Page ID #:117 102579149 19 CASE NO. 16-CV-09249-PSG-MRW MEMORANDUM OF POINTS AND AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bernzomatic, 281 F.R.D. 565, 573-74 (S.D. Cal. 2012), aff'd, 584 F. App’x 419 (9th Cir. 2014). Far more than hearsay references is needed to satisfy the particularity standard. As this Court has recognized, Rule 9(b) requires that a certain “degree of reliance” on a misrepresentation be pled. In re WellPoint, Inc. Out-of-Network UCR Rates Litig., 865 F. Supp. 2d 1002, 1048 (C.D. Cal. 2011). Plaintiff's hearsay “conclusions” simply do not allow one to plausibly infer that a reasonable consumer places any “degree of reliance” on the term “natural,” whatever a reasonable consumer may understand the term “natural” to mean, let alone what degree of reliance it may be. C. Plaintiff Does Not Plausibly Allege Her Warranty Claims Plaintiff’s warranty claims should also be dismissed for not having been plausibly alleged under Iqbal. The elements of a UCC express warranty claim are: “(1) proof that an affirmation or description was made; (2) the statement was part of the basis of the bargain; (3) the buyer relied on the statement; (4) the product failed to comply with the affirmation or description; (5) the breach was the proximate cause of the buyer's financial injury.” Gedalia, 53 F. Supp. 3d at 960. As the Gedalia court held, where, as here, a complaint fails to plead plausibly a “reasonable consumer standard” for a labeling term, such as “natural,” it also fails to plausibly plead the reliance and non-compliance elements of an express warranty claim. Id. As for Plaintiff’s implied warranty claim, the UCC does not “impose a general requirement that goods precisely fulfill the expectation of the buyer,” but rather “provides for a minimum level of quality.” Viggiano v. Hansen Nat. Corp., 944 F. Supp. 2d 877, 896 (C.D. Cal. 2013). Accordingly, a plaintiff who claims a breach of the implied warranty of merchantability must show that the product “did not possess even the most basic degree of fitness for ordinary use.” Id. (citing Mocek v. Alfa Leisure, Inc., 7 Cal. Rptr. 3d 546, 549 (Cal. Ct. App. 2003)). As in Case 2:16-cv-09249-PSG-MRW Document 23-1 Filed 02/21/17 Page 27 of 30 Page ID #:118 102579149 20 CASE NO. 16-CV-09249-PSG-MRW MEMORANDUM OF POINTS AND AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Viggiano, Plaintiff has not alleged any facts even remotely suggesting that Tradewinds’ iced tea products were “not merchantable or fit for use as a … soft drink[,] w[ere] not drinkable, [or] w[ere] contaminated or contained foreign objects.” Id. V. PLAINTIFF'S PUNITIVE DAMAGES CLAIM SHOULD BE DISMISSED The Court should strike or dismiss the punitive damages demand contained in the CLRA claim. (Dkt. 1 (¶59).) Punitive damages “are denied under both the UCL and the FAL,” 8 Anunziato v. eMachines, Inc., 402 F. Supp. 2d 1133, 1137 (C.D. Cal. 2005), and are only available under the CLRA in cases “involving intentional, but not negligent, misrepresentations.” Delarosa v. Boiron, Inc., 275 F.R.D. 582, 592 (C.D. Cal. 2011). Pleading a claim involving intent in this context “requires a knowing misrepresentation” to be alleged. Tom Trading, Inc. v. Better Blue, Inc., 26 F. App’x 733, 736 (9th Cir. 2002). Plaintiff, however, has not alleged that Tradewinds knew the falsity of its representation that its iced tea products were “natural.” At most, Plaintiff alleges that Tradewinds “intended to convince” consumers that the products in question were “natural.” (Dkt. 1 (¶15).) Plaintiff does not allege that Tradewinds knew those products could not be classified as “natural” under some objective, ascertainable standard. Accordingly, Plaintiff's punitive damages demand fails and should be dismissed or stricken. / / / / / / / / / / / / / / / 8 Plaintiff cannot and does not specifically demand punitive damages in connection with any of her other claims. (Dkt. 1 (¶¶46, 53, 66, 73)). Case 2:16-cv-09249-PSG-MRW Document 23-1 Filed 02/21/17 Page 28 of 30 Page ID #:119 102579149 21 CASE NO. 16-CV-09249-PSG-MRW MEMORANDUM OF POINTS AND AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VI. CONCLUSION For the foregoing reasons, this Court should dismiss the Complaint with prejudice in its entirety. Dated: February 21, 2017 Respectfully submitted, DENTONS US LLP By /s/Jaikaran Singh Christopher J. Healey Jaikaran Singh Email: chris.healey@dentons.com jai.singh@dentons.com Jeffrey M. Garrod (Admitted Pro Hac Vice) ORLOFF, LOWENBACH, STIFELMAN & SIEGEL, P.A. Email: jmg@olss.com Attorneys for Defendant Tradewinds Beverage Company Case 2:16-cv-09249-PSG-MRW Document 23-1 Filed 02/21/17 Page 29 of 30 Page ID #:120 102579149 22 CASE NO. 16-CV-09249-PSG-MRW CERTIFICATE OF SERVICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I, Jaikaran Singh, certify that I caused to be served upon the following counsel and parties of record a copy of the following document(s): DEFENDANT TRADEWINDS BEVERAGE COMPANY'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT as indicated/listed on the United States District Court, Central District of California’s CM/ECF registered email list in the above-referenced matter. Jack Fitzgerald, Esq. Melanie Rae Persinger, Esq. Trevor M. Flynn, Esq. The Law Office of Jack Fitzgerald PC Hillcrest Professional Building 3636 Fourth Avenue, Ste. 202 San Diego, CA 92103 Telephone: 619.692.3840 Facsimile: 619.362.9555 Email: jack@jackfitzgeraldlaw.com trevor@jackfitzgeraldlaw.com melanie@jackfitzgeraldlaw.com Attorneys for Plaintiff I declare under penalty of perjury under the laws of the United States of America, that the foregoing is true and correct. Executed at San Diego, California. Dated: February 21, 2017 s/Jaikaran Singh Jaikaran Singh Case 2:16-cv-09249-PSG-MRW Document 23-1 Filed 02/21/17 Page 30 of 30 Page ID #:121 102588571 CASE NO. 16-CV-09249-PSG-MRW DECLARATION OF ROBERT LAWTON IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CHRISTOPHER J. HEALEY (SBN 105798) JAIKARAN SINGH (SBN 201355) DENTONS US LLP 601 S. Figueroa Street, Suite 2500 Los Angeles, CA 90017-5704 Telephone: (213) 623-9300 Facsimile: (213) 623-9924 Email: chris.healey@dentons.com jai.singh@dentons.com JEFFREY M. GARROD (Admitted Pro Hac Vice) ORLOFF, LOWENBACH, STIFELMAN & SIEGEL, P.A. 101 Eisenhower Parkway, Suite 400 Roseland, NJ 07068-1097 Telephone: (973) 622-6200 Facsimile: (973) 622-3073 Email: jmg@olss.com Attorneys for Defendant Tradewinds Beverage Company UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ANGERLIA MARTIN, on behalf of herself, all others similarly situated, and the general public, Plaintiffs, v. TRADEWINDS BEVERAGE COMPANY, Defendant. Case No. 16-CV-09249-PSG-MRW CLASS ACTION DECLARATION OF ROBERT LAWTON IN SUPPORT OF DEFENDANT TRADEWINDS BEVERAGE COMPANY'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT ORAL ARGUMENT REQUESTED Date: May 1, 2017 Time: 1:30 p.m. Judge: Hon. Philip S. Gutierrez Ctrm.: 6A Trial Date: Not Set Date Action Filed: 12/14/16 Case 2:16-cv-09249-PSG-MRW Document 23-2 Filed 02/21/17 Page 1 of 3 Page ID #:122 1 I, Robert Lawton, declare as follows: 2 1. I am employed by Tradewinds Beverage Company (“Tradewinds”) as 3 Senior Finance Director. I have personal knowledge of the following facts and 4 would competently testify thereto if called as a witness in this matter. 5 2. In October 2015, Tradewinds discontinued the use of the terms “all 6 natural,” “100% natural,” and their equivalents, and thereafter no longer used the 7 term “natural,” except as specifically related to flavor, on its bottled iced tea 8 products sold at retail, This includes Tradewinds’ Sweet Tea, Extra Sweet Tea, 9 Lemon Tea, Raspberry Tea, Unsweet Tea, Unsweet Tea with Hint ofLemon, 10 Unsweet Tea with Hint ofRaspberry, and Unsweet Tea with Hint of Peach products 11 (“The Products”). 12 3. Since at least 2012, all bottled Tradewinds iced tea products, including 13 The Products, have been sold with a list of ingredients displayed on the bottle’s 14 label. 15 4, Attached hereto as Exhibits “A,” “B,” and “C,” respectively, are 16 copies of the back portion of the labels used on the Tradewinds Sweet Tea, Lemon 17 Tea, and Raspberry Tea bottles showing the list of ingredients. 18 1 declare under penalty of perjury that the foregoing is true and correct. 19 Executed this 17th day of February, 2017. 20 21 ROBI*I~LAWTON 22 23 24 25 26~ 27 28 -1- .CASE NO. 16-CV-09249-PSG-MRWDECLARATION OF ROBERT LAWTON IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT Case 2:16-cv-09249-PSG-MRW Document 23-2 Filed 02/21/17 Page 2 of 3 Page ID #:123 102588571 2 CASE NO. 16-CV-09249-PSG-MRW CERTIFICATE OF SERVICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I, Jaikaran Singh, certify that I caused to be served upon the following counsel and parties of record a copy of the following document(s): DECLARATION OF ROBERT LAWTON IN SUPPORT OF DEFENDANT TRADEWINDS BEVERAGE COMPANY'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT as indicated/listed on the United States District Court, Central District of California’s CM/ECF registered email list in the above-referenced matter. Jack Fitzgerald, Esq. Melanie Rae Persinger, Esq. Trevor M. Flynn, Esq. The Law Office of Jack Fitzgerald PC Hillcrest Professional Building 3636 Fourth Avenue, Ste. 202 San Diego, CA 92103 Telephone: 619.692.3840 Facsimile: 619.362.9555 Email: jack@jackfitzgeraldlaw.com trevor@jackfitzgeraldlaw.com melanie@jackfitzgeraldlaw.com Attorneys for Plaintiff I declare under penalty of perjury under the laws of the United States of America, that the foregoing is true and correct. Executed at San Diego, California. Dated: February 21, 2017 s/Jaikaran Singh Jaikaran Singh Case 2:16-cv-09249-PSG-MRW Document 23-2 Filed 02/21/17 Page 3 of 3 Page ID #:124 Nutrition Facts Serving Size 8 fl oz (240mL) Servings Per Container 16 Amount Per Serving Calories 70 % DV* Total Fat Og 0% Sodium 5mg 0% Total Carbohydrate 19g 6% Sugars 19g Protein 0g Not a significant source of calories from fat, saturated fat, trans fat, cholesterol, dietary fiber, vitamin A, vitamin C, calcium or iron. 'Percent Daily Values (DV) are based on a 2,000 calorie diet. INGREDIENTS: BREWED TEA (FILTERED a; WATER. BLACK TEA LEAVES). SUGAR. IIP CARAMEL COLOR. CITRIC ACID. SLOW IA EINIEE v, a. - At Tradewinds®, we believe there's just - something special about our slow brewed tea That's why we take the time to make it right, with simple, high qualityingredients. So whether you're hanging with friends or just enjoying "me time", there's nothing more refreshing than our slow brewed iced tea. Slow Brewed with Real Black Tea Leaves Inc TEA TRADEWINDS BEVERAGE CO. CARLISLE, OH 45005 1-855-374-6589 tradew in datea.com OD 2015 All trademarks are owned by Societe des Produits Nestle S.A., Vevey, Switzerland. REFRIGERATE AFTER OPENING " PLEASE ME 5t, WV SC %07 RECYCLE CA CRV Smyth Companies, Inc. 311 West Depot Street Bedford, VA 24523 T540.586.2311.800.950.7011 F540.586.0549 Cut Size: 4.425" x 6.000" Bleed Size: 4.675" x 6.250" Warm Red Client: Date: 06-21-16 Job: Tradewinds 1 G Graham Bottle-Sweet Carlisle, OH PMS 294 CONTENT & DIE INFORMATION: The supplier is solely responsible for the accuracy of die dimensions and lap specification as well as the legality of all packaging copy. COLOR MATCHING: Refer to the Pantone® Color Formula Guide or to the Pantone® Process Color System Guide for the colors specified in this layout. Do not use this printout for an exact color match. (FIL E , ), , EL , fl 0 fi l l l i fi i l i i *Perce t Dail V l ( ) r l i i 0 88130 44052 1 ” ” ” ”t . 11• 800. i ttl t rl EXHIBIT A c 3 s Case 2:16-cv-09249-PSG-MRW Document 23-3 Filed 02/21/17 Page 1 of 1 Page ID #:125 0 1 30 iii Smyth Companies, Inc. 311 West Depot Street Bedford, VA 24523 T540.586.2311.800.950.7011 F540.586.0549 Cut Size: 4.425" x 6.000" Bleed Size: 4.675" x 6.250" PMS 294 Client: Date: 06-20-16 Job: Tradewinds 1 G Graham Bottle-Lemon Carlisle, OH Alb CONTAINS NO JUICE Nutrition Facts Serving Size 8 fl oz (240mL) Servings Per Container 16 Amount Per Serving Calories 90 % DV* Total Fat Og 0% Sodium 0mg 0% Total Carbohydrate 23g 8% Sugars 23g Protein 0g Not a significant source of calories from fat, saturated fat, trans fat, cholesterol, dietary fiber, vitamin ,n vitamin C, calcium or iron. 'Percent Daily Values (DV) are based on a 2,000calorie diet. forr,"•"..;.•' wi SLOW MIME !Imo I At Tradewinds X, we believe there's just 'something special about our slow brewed tea. That's why we take the time to make it right, with simple, high qualityingredients. So whether you're hanging with friends or just enjoying "me time", there's nothing more refreshing than our slow brewed iced tea. Slow Brewed with Real Black Tea Leaves INGREDIENTS: BREWED TEA (FILTERED ..; WATER. BLACK TEA LEAVES). SUGAR. IF CITRIC ACID. NATURAL FLAVORS. CARAMEL COLOR. • ILED SEA TRADEWINDS BEVERAGE CO. CARLISLE, OH 45005 1-855-374-6589 tradew in datea.com 2015 All trademarks are owned by Soci6t6 des Produits Nestle S.A., Vevey, Switzerland. REFRIGERATE AFTER OPENING " PLEASE ME 5t, WV SC %of RECYCLE CA CRV CONTENT & DIE INFORMATION: The supplier is solely responsible for the accuracy of die dimensions and lap specification as well as the legality of all packaging copy. COLOR MATCHING: Refer to the Pantone® Color Formula Guide or to the Pantone® Process Color System Guide for the colors specified in this layout. Do not use this printout for an exact color match. TE (FIL E , S), , , , EL fl 8% t 0 fi l l l i fi A, i l i i *Perce t Dail V l ( ) r cal ie i I 881 44025 5 ” ” ” ” 24 . . 11• 800.9 . PMS 130 i r ot l - rl EXHIBIT B 4 Case 2:16-cv-09249-PSG-MRW Document 23-4 Filed 02/21/17 Page 1 of 1 Page ID #:126 PMS 294 PMS 7635 !LEG IEA SLOW DRUM CONTAINS NO JUICE Alm INGREDIENTS: BREWED TEA (FILTERED WATER. BLACK TEA LEAVES). SUGAR. dig CITRIC ACID. NATURAL FLAVORS. CARAMEL COLOR. rrs Jlt TradewIndsns, we believe there's just isoinething special about our slow brewed item That's why we take the time to make it right, with simple, high qualityingredients. So whether you're hanging with friends or just enjoying "me time", there's nothing more refreshing than our slow brewed iced tea. Slow Brewed with Real Black Tea Leaves TRADEWINDS BEVERAGE CO. CARLISLE, OH 45005 1-855-374-6589 tradew iistea.com OD 2015 All trademarks are owned by Soci6t6 des Produits Nestle S.A., Vevey, Switzerland. REFRIGERATE AFTER OPENING " PLEASE ME 5t, WV SC %07 RECYCLE CA CRV 1111 o 88130 55453 - • de • d Nutrition Facts Serving Size 8 fl oz (240mL) Servings Per Container 16 Amount Per Serving Calories 90 % DV* Total Fat Og 0% Sodium 0mg 0% Total Carbohydrate 23g 8% Sugars 23g Protein Og Not a significant source of calories from fat, saturated fat, trans fat, cholesterol, dietary fiber, vitamin A, vitamin C, calcium or iron. 'Percent Daily Values (DV) are based on a 2,000 calorie diet. Smyth Companies, Inc. 311 West Depot Street Bedford, VA 24523 T540.586.2311.800.950.7011 F540.586.0549 Client: Date: 06-17-16 Job: Tradewinds 1 G Graham Bottle-Raspberry Carlisle, OH Cut Size: 4.425" x 6.000" Bleed Size: 4.675" x 6.250" CONTENT & DIE INFORMATION: The supplier is solely responsible for the accuracy of die dimensions and lap specification as well as the legality of all packaging copy. COLOR MATCHING: Refer to the Pantone® Color Formula Guide or to the Pantone® Process Color System Guide for the colors specified in this layout. Do not use this printout for an exact color match. TEA (FIL E , S), , , , EL fl t 0 i 0 fi l l l i fi l i i *Perce t Dail V l ( ) r l i i I 0 8130 55 2 ” ” ” ” r , . 1• 800. . i r ttl rr rl EXHIBIT C s 5 Case 2:16-cv-09249-PSG-MRW Document 23-5 Filed 02/21/17 Page 1 of 1 Page ID #:127 CASE NO. 16-CV-09249-PSG-MRW [PROPOSED] ORDER GRANTING DEFENDANT'S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ANGERLIA MARTIN, on behalf of herself, all others similarly situated, and the general public, Plaintiffs, v. TRADEWINDS BEVERAGE COMPANY, Defendant. Case No. 16-CV-09249-PSG-MRW CLASS ACTION [PROPOSED] ORDER GRANTING DEFENDANT TRADEWINDS BEVERAGE COMPANY'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT Date: May 1, 2017 Time: 1:30 p.m. Judge: Hon. Philip S. Gutierrez Ctrm.: 6A Trial Date: Not Set Date Action Filed: 12/14/16 Case 2:16-cv-09249-PSG-MRW Document 23-6 Filed 02/21/17 Page 1 of 3 Page ID #:128 1 CASE NO. 16-CV-09249-PSG-MRW [PROPOSED] ORDER GRANTING DEFENDANT'S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER The Court having heard and considered the papers filed in support of and in opposition to defendant Tradewinds Beverage Company's motion to dismiss plaintiff Angerlia Martin's Complaint and the arguments of counsel at the hearing on this matter, and good cause appearing, IT IS HEREBY ORDERED THAT: (1) Motion to Dismiss the Complaint is GRANTED under the primary jurisdiction doctrine. (2) Motion to Dismiss the Complaint is GRANTED as to the First Cause of Action for Violation of California’s Unfair Competition Law (Cal. Bus. & Prof. Code § 17200 et seq.). (3) Motion to Dismiss the Complaint is GRANTED as to the Second Cause of Action for Violations of the False Advertising Law (Cal. Bus. & Prof. Code § 17500 et seq.). (4) Motion to Dismiss the Complaint is GRANTED as to the Third Cause of Action for Violations of the Consumer Legal Remedies Act (Cal. Civ. Code § 1750 et seq.). (5) Motion to Dismiss the Complaint is GRANTED as to the Fourth Cause of Action for Breaches of Express Warranties (Cal. Com. Code § 2313(1)). (6) Motion to Dismiss the Complaint is GRANTED as to the Fifth Cause of Action for Breach of Implied Warranty of Merchantability (Cal. Com. Code § 2314). Dated: , 2017 The Hon. Philip S. Gutierrez United States District Judge Case 2:16-cv-09249-PSG-MRW Document 23-6 Filed 02/21/17 Page 2 of 3 Page ID #:129 2 CASE NO. 16-CV-09249-PSG-MRW CERTIFICATE OF SERVICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I, Jaikaran Singh, certify that I caused to be served upon the following counsel and parties of record a copy of the following document(s): [PROPOSED] ORDER GRANTING DEFENDANT TRADEWINDS BEVERAGE COMPANY'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT as indicated/listed on the United States District Court, Central District of California’s CM/ECF registered email list in the above-referenced matter. Jack Fitzgerald, Esq. Melanie Rae Persinger, Esq. Trevor M. Flynn, Esq. The Law Office of Jack Fitzgerald PC Hillcrest Professional Building 3636 Fourth Avenue, Ste. 202 San Diego, CA 92103 Telephone: 619.692.3840 Facsimile: 619.362.9555 Email: jack@jackfitzgeraldlaw.com trevor@jackfitzgeraldlaw.com melanie@jackfitzgeraldlaw.com Attorneys for Plaintiff I declare under penalty of perjury under the laws of the United States of America, that the foregoing is true and correct. Executed at San Diego, California. Dated: February 21, 2017 s/Jaikaran Singh Jaikaran Singh Case 2:16-cv-09249-PSG-MRW Document 23-6 Filed 02/21/17 Page 3 of 3 Page ID #:130