Arash Hashemi et al v. DR Pepper Snapple Group, Inc. et al

NOTICE OF MOTION AND MOTION to Dismiss Case

C.D. Cal.April 25, 2017

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 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) CASE NO. 2:17-CV-02042-FMO (SSX) BAKER BOTTS L.L.P. Jonathan A. Shapiro (SBN# 257199) jonathan.shapiro@bakerbotts.com 101 California Street, Suite 3600 San Francisco, CA 94111 Telephone: (415) 291-6204 Facsimile: (415) 291-6304 Van H. Beckwith (not admitted in California) van.beckwith@bakerbotts.com Jessica E. Underwood (not admitted in California) jessica.underwood@bakerbotts.com 2001 Ross Avenue, Suite 600 Dallas, TX 75201-2980 Telephone: (214) 953-6500 Facsimile: (214) 953-6503 Attorneys for Defendants DR PEPPER SNAPPLE GROUP, INC. AND DR PEPPER/SEVEN UP, INC. UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA ARASH HASHEMI, et al., Plaintiffs, v. DR PEPPER SNAPPLE GROUP, INC., et al., Defendants. CASE NO. 2:17-cv-02042-FMO (SSx) CLASS ACTION DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS UNDER RULES 12(B)(1), 12(B)(6), AND 9(B) Date: Thursday, May 25, 2017 Time: 10:00 a.m. Courtroom: 6D Judge: Honorable Fernando M. Olguin Case 2:17-cv-02042-FMO-SS Document 22 Filed 04/25/17 Page 1 of 4 Page ID #:158 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 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) TO THE PLAINTIFFS AND THEIR ATTORNEYS OF RECORD IN THE ABOVE-ENTITLED MATTER: PLEASE TAKE NOTICE that on Thursday, May 25, 2017, at 10:00 a.m., or as soon thereafter as the matter may be heard, in Courtroom 6D before the Honorable Fernando M. Olguin of the above-entitled Court, Defendants Dr Pepper Snapple Group, Inc. and Dr Pepper/Seven Up, Inc. (“Defendants”) will and hereby do move the Court to dismiss Plaintiffs Arash Hashemi, Natasha Safaradi, and Patrick Gilburt’s Class Action Complaint against them, alleging violations of the California Consumers Legal Remedies Act, CAL. CIV. CODE § 1750, et. seq., California’s False Advertising Law, CAL. BUS. & PROF. CODE § 17500, et. seq., California’s Unlawful Competition Law, CAL. BUS. & PROF. CODE § 17200, et. seq., claims for breach of express and implied warranties under both California and Colorado law, CAL. COMM. CODE §§ 2313, 2314; COLO. REV. STAT. §§ 4-2-313, 4- 2-314, violations of Colorado’s Consumer Protection Act, COLO. REV. STAT. § 6-1- 105, common law claims for fraud, intentional and negligent misrepresentation, breach of contract, and equitable claims for quasi-contract, unjust enrichment, restitution, and their prayer for declaratory and injunctive relief, restitution, compensatory damages, statutory and punitive damages, and attorneys’ fees and costs. Defendants move for dismissal under Federal Rules of Civil Procedure 9(b), 12(b)(1), and 12(b)(6) as to each cause of action on the grounds that (i) Plaintiffs have failed to allege that a reasonable consumer would be misled by the product statements identified in the Complaint; (ii) Plaintiffs have failed to satisfy the heightened pleading requirements of Rule 9(b); and (iii) Plaintiffs lack standing to pursue their claims for declaratory and injunctive relief. This motion is based on this Notice of Motion and Motion; the accompanying Memorandum of Points and Authorities; the record of this action; all matters of which the Court may take notice; and any arguments presented at the Case 2:17-cv-02042-FMO-SS Document 22 Filed 04/25/17 Page 2 of 4 Page ID #:159 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 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) time of hearing. This motion is made following the conference of counsel pursuant to L.R. 7-3, who met and conferred on dispositive and pretrial motion practice on several days this month, most recently on Friday April 21, 2017. WHEREFORE, Defendants request that the Court: (1) Dismiss the Complaint with prejudice; (2) Enter judgment in favor of Defendants, and against Plaintiffs, on all claims; and (3) Award any other relief that is just and proper. DATED: April 25, 2017 By: /s/ Jonathan A. Shapiro BAKER BOTTS L.L.P. Jonathan A. Shapiro (SBN# 257199) jonathan.shapiro@bakerbotts.com 101 California Street, Suite 3600 San Francisco, CA 94111 Telephone: (415) 291-6204 Facsimile: (415) 291-6304 Van H. Beckwith (not admitted in California) van.beckwith@bakerbotts.com Jessica E. Underwood (not admitted in California) jessica.underwood@bakerbotts.com 2001 Ross Avenue, Suite 600 Dallas, TX 75201-2980 Telephone: (214) 953-6500 Facsimile: (214) 953-6503 Attorneys for Defendants DR PEPPER SNAPPLE GROUP, INC. AND DR PEPPER/SEVEN UP, INC. Case 2:17-cv-02042-FMO-SS Document 22 Filed 04/25/17 Page 3 of 4 Page ID #:160 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 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) CERTIFICATE OF SERVICE I hereby certify that on April 25, 2017, I electronically filed the above document with the U.S. District Court for the Central District of California by using the CM/ECF system. All participants in the case are registered CM/ECF users who will be served by the CM/ECF system. /s/ Jonathan A. Shapiro______ Jonathan A. Shapiro Case 2:17-cv-02042-FMO-SS Document 22 Filed 04/25/17 Page 4 of 4 Page ID #:161 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 DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) BAKER BOTTS L.L.P. Jonathan A. Shapiro (SBN# 257199) jonathan.shapiro@bakerbotts.com 101 California Street, Suite 3600 San Francisco, CA 94111 Telephone: (415) 291-6204 Facsimile: (415) 291-6304 Van H. Beckwith (not admitted in California) van.beckwith@bakerbotts.com Jessica E. Underwood (not admitted in California) jessica.underwood@bakerbotts.com 2001 Ross Avenue, Suite 600 Dallas, TX 75201-2980 Telephone: (214) 953-6500 Facsimile: (214) 953-6503 Attorneys for Defendants DR PEPPER SNAPPLE GROUP, INC. AND DR PEPPER/SEVEN UP, INC. UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA ARASH HASHEMI, et al., Plaintiffs, v. DR PEPPER SNAPPLE GROUP, INC., et al., Defendants. Case No. 2:17-CV-02042-FMO (SSx) CLASS ACTION MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS CLASS ACTION COMPLAINT UNDER RULES 12(B)(6), 12(B)(1), AND 9(B) Date: Thursday, May 25, 2017 Time: 10:00 AM Courtroom: 6D Judge: Honorable Fernando M. Olguin Case 2:17-cv-02042-FMO-SS Document 22-1 Filed 04/25/17 Page 1 of 26 Page ID #:162 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 DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) TABLE OF CONTENTS I. INTRODUCTION ................................................................................................... 1 II. SUMMARY OF ALLEGED FACTS .................................................................... 3 III. APPLICABLE LEGAL STANDARDS ............................................................... 4 A. Rule 12(b)(6) .................................................................................................. 4 B. Rule 9(b) ........................................................................................................ 5 C. Rule 12(b)(1) .................................................................................................. 5 IV. ARGUMENTS AND AUTHORITIES ................................................................ 6 A. The Failure to Plead Any Actionable Misrepresentation Is Fatal to the Entire Complaint. ........................................................................................... 6 1. Plaintiffs state no claim against the product label. ....................................... 6 2. Plaintiffs state no claim against “television advertising campaigns.” ....... 11 B. The warranty claims fail to state a claim. .................................................... 13 C. The contract claim fails because Plaintiffs have not alleged a contract. ..... 14 D. The quasi contract, unjust enrichment, and restitution claims fail. ............. 15 E. Plaintiffs lack standing to seek declaratory and injunctive relief. ............... 15 CONCLUSION......................................................................................................... 18 Case 2:17-cv-02042-FMO-SS Document 22-1 Filed 04/25/17 Page 2 of 26 Page ID #:163 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 DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) TABLE OF AUTHORITIES Page(s) CASES Armstrong v. Davis 275 F.3d 849 (9th Cir. 2001) .....................................................................................................16 Ashcroft v. Iqbal 556 U.S. 662 (2009) .................................................................................................................4,5 Astiana v. Hain Celestial Grp., Inc. 783 F.3d 753 (9th Cir. 2015) .....................................................................................................15 Azoulai v. BMW of N. Am. LLC No. 16-CV-00589-BLF, 2017 WL 1354781 (N.D. Cal. Apr. 13, 2017) ..................................13 Bell Atl. Corp. v. Twombly 550 U.S. 544 (2007) ..........................................................................................................4,10,11 Cafasso, U.S. v. Gen. Dynamics C4 Sys., Inc. 637 F.3d 1047 (9th Cir. 2011) .....................................................................................................8 Campion v. Old Republic Home Protection Co. 861 F. Supp. 2d 1139 (S.D. Cal. 2012) .....................................................................................18 Carrea v. Dreyer’s Grand Ice Cream, Inc. 475 F. App’x 113 (9th Cir. 2012) .............................................................................................11 Cattie v. Wal-Mart Stores, Inc. 504 F. Supp. 2d 939 (S.D. Cal. 2007) ..................................................................................17,18 Chacanaca v. Quaker Oats Co. 752 F. Supp. 2d 1111 (N.D.. Cal. 2010) ...................................................................................10 City of Los Angeles v. Lyons 461 U.S. 95 (1983) ....................................................................................................................16 Edwards v. Marin Park, Inc. 356 F.3d 1058 (9th Cir. 2004) .....................................................................................................5 First Comm. Mortg. Co. v. Reece 89 Cal. App. 4th 731 (2001)......................................................................................................15 Florey Inst. of Neuroscience and Mental Health v. Kleiner Perkins Caufield Byers 31 F. Supp. 3d 1034 (N.D. Cal. 2014) ......................................................................................15 Case 2:17-cv-02042-FMO-SS Document 22-1 Filed 04/25/17 Page 3 of 26 Page ID #:164 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 - 2 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. 528 U.S. 167 (2000) ..................................................................................................................16 Gest v. Bradbury 443 F.3d 1177 (9th Cir. 2006) ...................................................................................................16 Grenier v. Spencer No. 2:12-cv-0258 KJM GGH PS, 2013 WL 211130 (E.D. Cal. Jan. 18, 2013) .........................5 Hadley v. Kellogg Sales Co. ___ F. Supp. 3d ___, 2017 WL 1065293 (N.D. Cal. Mar. 21, 2017) .......................................14 Hairston v. S. Beach Beverage Co. No. CV 12-1429-JFW, 2012 WL 1893818 (C.D. Cal. May 18, 2012) .......................................7 Ham v. Hain Celestial Grp., Inc. 70 F. Supp. 3d 1188 (N.D. Cal. 2014) ......................................................................................13 Henderson v. Gruma Corp. No. CV 10-04173 AHM 2011 WL 1362188 (C.D. Cal. Apr. 11, 2011) ....................................9 Hodgers-Durgin v. de la Vina 199 F.3d 1037 (9th Cir. 1999) ...................................................................................................18 In re ConAgra Foods, Inc. 90 F. Supp. 3d 919 (C.D. Cal. 2015) ........................................................................................13 Katiki v. Taser Int’l, Inc. No. 12-cv-05519 NC, 2013 WL 163668 (N.D. Cal. Jan. 15, 2013) .......................7,12,16,17,18 Kearns v. Ford Motor Co. 567 F.3d 1120 (9th Cir. 2009) .............................................................................................5,7,10 Kwan v. SanMedica Int’l ___ F.3d ___, No. 15-15496, 2017 WL 1416483 (9th Cir. Apr. 21, 2017) ................................8 Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496 (2003)....................................................................................................11 Lucido v. Nestle Purina Petcare Co. ___ F. Supp. 3d ___, 2016 WL 6804576 (N.D. Cal. Nov. 17, 2016) .......................................14 Machlan v. Procter & Gamble Co. 77 F. Supp. 3d 954 (N.D. Cal. 2015) ..........................................................................................5 O’Shea v. Littleton 414 U.S. 488 (1974) ..................................................................................................................16 Otto v. Abbott Labs., Inc. No. 12-CV-1411-SCW (DTB), 2013 WL 12132064 (C.D. Cal. Mar. 15, 2013) .......................8 Case 2:17-cv-02042-FMO-SS Document 22-1 Filed 04/25/17 Page 4 of 26 Page ID #:165 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 - 3 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) Padilla v. Costco Wholesale Corp. No. 11 C 7686, 2012 WL 2397012, at *4 (N.D. Ill. June 21, 2012) .........................................10 Patera v. Citibank, N.A. 79 F. Supp. 3d 1074 (N.D. Cal. 2015) ........................................................................................6 People for the Ethical Treatment of Animals v. Whole Foods Market Cal., Inc. No. 15-cv-04301 NC, 2016 WL 1642577 (N.D. Cal. Apr. 26, 2016) ............................6, 7,9,12 Pirozzi v. Apple, Inc. 966 F. Supp. 2d 909 (N.D. Cal. 2013) ........................................................................................6 Cal. Pub. Emp.’s Ret. Sys. v. Chubb Corp. 394 F.3d 126 (3d Cir. 2004) ......................................................................................................10 Rooney v. Cumberland Packing Corp. No. 12-cv-0033-H, 2012 WL 1512106 (S.D. Cal. Apr. 16, 2012) ...........................................11 Schmier v. U.S. Ct. of Appeals for the Ninth Circuit 279 F.3d 817 (9th Cir. 2002) .....................................................................................................16 Starr v. Baca 652 F.3d 1202 (9th Cir. 2011) .....................................................................................................5 Summers v. Earth Island Inst. 555 U.S. 488 (2009) ..................................................................................................................16 Tait v. BSH Home Appliances Corp. 289 F.R.D. 466 (C.D. Cal. 2012) ................................................................................................6 Tennille v. Western Union Co. 751 F. Supp. 2d 1168 (D. Colo. 2010) ......................................................................................15 Two Moms & a Toy, LLC v. Int’l Playthings, LLC 898 F. Supp. 2d 1213 (D. Colo. 2012) ........................................................................................6 Vess v. Ciba-Geigy Corp. USA 317 F.3d 1097 (9th Cir. 2003) .................................................................................................5, 7 Vieira v. Woodford No. C 00-0043 PJH, 2002 WL 1226852 (N.D. Cal. May 30, 2002) ...........................................5 Wang v. OCZ Technology Group, Inc. 276 F.R.D. 618 (N.D. Cal. 2011) .........................................................................................17,18 Werbel v. Pepsico, Inc. No. C 09-04456 SBA, 2010 WL 2673860 (N.D. Cal. July 2, 2010) ........................................11 W. Distrib. Co. v. Diodosio 841 P.2d 1053 (Colo. 1992) ......................................................................................................15 Case 2:17-cv-02042-FMO-SS Document 22-1 Filed 04/25/17 Page 5 of 26 Page ID #:166 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 - 4 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) White v. Lee 227 F.3d 1214 (9th Cir. 2000) .....................................................................................................6 STATUTES AND COURT RULINGS CAL. BUS. & PROF. CODE § 17200 ....................................................................................................3 CAL. BUS. & PROF. CODE § 17500 .....................................................................................................3 CAL. CIV. CODE § 1750 .....................................................................................................................3 CAL. COMM. CODE § 2312 .................................................................................................................3 CAL. COMM. CODE § 2313 .................................................................................................................3 CAL. COMM. CODE § 2314 ........................................................................................................... 3, 14 COLO. REV. STAT. § 4-2-312 ...........................................................................................................13 COLO. REV. STAT. § 4-2-313 .............................................................................................................3 COLO. REV. STAT. § 4-2-314 .............................................................................................................3 COLO. REV. STAT. § 6-1-105 .............................................................................................................3 FED. R. CIV. P. 8 .......................................................................................................................... 7, 10 FED. R. CIV. P. 9 .................................................................................................................. 1,2, 10,12 FED. R. CIV. P. 12 ...................................................................................................................... 1, 4, 5 OTHER AUTHORITIES Merriam-Webster’s Collegiate Dictionary (11th ed. 2014) ..............................................................8 Case 2:17-cv-02042-FMO-SS Document 22-1 Filed 04/25/17 Page 6 of 26 Page ID #:167 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 -1- DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) Defendants Dr Pepper Snapple Group, Inc. and Dr Pepper/Seven Up, Inc. (“DPSG”) submit this Memorandum of Points and Authorities in support of their Motion to Dismiss Plaintiffs’ Class Action Complaint under Federal Rules of Civil Procedure 12(b)(6), 12(b)(1), and 9(b). I. INTRODUCTION Plaintiffs Arash Hashemi, Natasha Safaradi, and Patrick Gilburt have brought this purported nationwide consumer class action, alleging that they were deceived by the label affixed on Canada Dry Ginger Ale in violation of California and Colorado state consumer protection statutes and the common law. Plaintiffs acknowledge that this is a copy-cat Complaint, 1 challenging the same words on a product label (“Made From Real Ginger”), affixed to the same beverage, offered by the same defendants, on behalf of the same class of consumers, as a previously filed putative class action pending before the Northern District of California, see Jackie Fitzhenry-Russell, et al. v. Dr Pepper Snapple Group, Inc., et al., Case No. 5:17-cv- 00565-NC. This needlessly duplicative Complaint should be dismissed for any number of reasons. For starters, Plaintiffs have brought a misrepresentation case without ever identifying an actionable misrepresentation. The entire lawsuit—every claim asserted, every remedy sought—rests on the superficial theory that Defendants misrepresented their beverages on the product label as being “Made From Real Ginger.” Nowhere, however, do Plaintiffs plead facts showing that the beverages were not “made from real ginger.” Nor is there any other cogent basis in the Complaint to bring a class action challenge against that true product statement. 1 See Plaintiffs’ Notice of Pendency of Other Actions or Proceedings Pursuant to Civil Local Rule 83-1.4 (ECF Docket No. 5). To avoid unnecessary and wasteful duplicative litigation of the same case in multiple courts, the District Court for the Central District of California has transferred this case to the Northern District of California, San Jose Division (ECF Docket No. 21). Defendants file their Motion to Dismiss in the closed docket for Case No. 2:17-CV-02042-FMO (SSx), the District Court for the Northern District of California has not yet opened the case or assigned a case number to the transferred matter. Case 2:17-cv-02042-FMO-SS Document 22-1 Filed 04/25/17 Page 7 of 26 Page ID #:168 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 - 2 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) Instead, Plaintiffs substitute their own (or perhaps counsel’s) subjective perception of what should be and/or could be the ingredients in ginger ale for what Defendants actually said about their product. Most notably, Plaintiffs claim that they interpret “Made From Real Ginger” (the truthful statement on the label) to really mean that the beverage contains “a detectable amount of ginger,” something Defendants never promised on the label, or elsewhere. See, e.g., Compl. ¶ 3. As a matter of law, reasonable consumers are not misled by product statements that are true (both on their face and in context), and Defendants are not liable for product statements that they never made. Plaintiffs’ pleading problem goes well beyond their fatal failure to identify anything on the label that was misleading (or deceptive, unfair, or unlawful). They also disregard their demanding Rule 9(b) pleading burden for the other elements of their claims. Plaintiffs’ entire theory of falsity rests on a single-sentence conclusion that some never-identified “independent laboratory” tested some unspecified beverage, in a never-disclosed way at a never-alleged time, and told someone (counsel?) that he/she/it could not “detect” whatever amount of ginger Plaintiffs individually expected. See Compl. ¶ 22. Strikingly, Plaintiffs have not even alleged basic facts about themselves. They do not plead what they paid for the Ginger Ale (which is something they should know before claiming they were fraudulently induced into paying too much), and fail to particularize when and how much they purchased during the lengthy class period (instead, vaguely claiming to have purchased “in or around” February and December 2016, and January 2017). Compl. ¶¶ 11–13. There is similarly no meaningful factual predicate for Plaintiffs’ allegations that Defendants falsely advertised Canada Dry Ginger Ale on television. The Complaint fails to allege when—or even whether—commercials were broadcast, and regardless, Plaintiffs never claim to have viewed and relied on any commercials prior to purchasing Canada Dry Ginger Ale. Case 2:17-cv-02042-FMO-SS Document 22-1 Filed 04/25/17 Page 8 of 26 Page ID #:169 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 - 3 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) Finally, Plaintiffs have not, and could not, allege standing under Article III to maintain their claims for injunctive and declaratory relief. Having filed a lawsuit based on their supposed discovery that Canada Dry Ginger Ale was not as advertised (because it does not contain “a detectable amount of ginger”), there is no plausible basis that Plaintiffs will be deceived again. Nor can Plaintiffs manufacture standing by stating that they “would likely purchase [Canada Dry Ginger Ale] in the future if [it] was reformulated.” Compl. ¶ 32. That is errant speculation about potential product changes (not a “reasonable likelihood”), and in any event, makes no sense. Even if the product is hypothetically reformulated, there is no basis to conclude that it would be changed in any way that would be inconsistent with its future, also-hypothetical label. II. SUMMARY OF ALLEGED FACTS The crux of this lawsuit is Plaintiffs’ contention that Defendants misrepresented their products as containing what they refer to as a “detectable amount” of ginger. See, e.g., Compl. ¶¶ 3, 21–29, 42. Plaintiffs claim they reached this conclusion based on the label on Canada Dry Ginger Ale, which stated, “Made From Real Ginger”—but said nothing about the beverages containing any amount of ginger. Id. Plaintiffs also point to television commercials that they say incorporated or “reinforce[d]” “Made From Real Ginger,” even though Plaintiffs never allege that they relied on—or even viewed—any commercial in making their alleged purchases. Plaintiffs further assert that, had they known that the ginger ale did not contain a “detectable amount” of real ginger, they would not have purchased the beverage, or would have refused to pay the same price. Compl. ¶ 29. Plaintiffs bring state law claims under the California Consumers Legal Remedies Act, CAL. CIV. CODE § 1750, et seq., California’s False Advertising Law, CAL. BUS. & PROF. CODE § 17500, et seq., California’s Unlawful Competition Law, CAL. BUS. & PROF. CODE § 17200, et seq., claims for breach of express and implied warranties under both California and Colorado law, CAL. COMM. CODE §§ 2313, Case 2:17-cv-02042-FMO-SS Document 22-1 Filed 04/25/17 Page 9 of 26 Page ID #:170 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 - 4 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) 2314; COLO. REV. STAT. §§ 4-2-313, 4-2-314, violations of Colorado’s Consumer Protection Act, COLO. REV. STAT. § 6-1-105, common law claims for fraud, intentional and negligent misrepresentation, breach of contract, and equitable claims for quasi-contract, unjust enrichment, and restitution. In addition to suing on their own behalf, Plaintiffs seek to litigate on behalf of a putative national class, and several subclasses. 2 Plaintiffs demand declaratory and injunctive relief, restitution, compensatory damages, statutory and punitive damages, and attorneys’ fees and costs. Compl. at 32. III. APPLICABLE LEGAL STANDARDS A. Rule 12(b)(6) A complaint must be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure unless it “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although the Court must accept factual allegations as true for purposes of a motion to dismiss, this tenet is “inapplicable to legal conclusions.” Id. After stripping away the “conclusory statements” in the complaint, the remaining factual allegations must do more than “create[] a suspicion of a legally cognizable right of action”; they must “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted). To make this “context-specific” determination, the Court must “draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. This analysis 2 Plaintiffs allege: (1) the “Nationwide Class,” on behalf of all persons in the United States who, within the relevant statute of limitations periods, purchased Canada Dry Ginger Ale; (2) the “California Subclass,” on behalf of all California residents who, within the relevant statute of limitations periods, purchased Canada Dry Ginger Ale; (3) the “California Consumer Subclass,” on behalf of all California residents, who within the relevant statute of limitations periods, purchased Canada Dry Ginger Ale for personal, family, or household purposes; and (4) the “Colorado Subclass,” on behalf of all Colorado residents who, within the relevant statute of limitations periods, purchased Canada Dry Ginger Ale. Compl. ¶¶ 33–36. Case 2:17-cv-02042-FMO-SS Document 22-1 Filed 04/25/17 Page 10 of 26 Page ID #:171 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 - 5 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) provides a critical gatekeeping function, because claims must be sufficiently plausible “such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). B. Rule 9(b) Federal Rule of Civil Procedure 9(b) requires that Plaintiffs “state with particularity the circumstances constituting fraud.” This pleading standard specifically “appl[ies] to claims for violations of the CLRA and UCL,” as well as the FAL, where, as here, those claims are based on a fraud theory. Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009); Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1105 (9th Cir. 2003) (noting that “[f]raud can be averred by specifically alleging fraud, or by alleging facts that necessarily constitute fraud,” even if the allegations do not use the word “fraud”). Accordingly, the Complaint must specifically allege “the ‘who, what, when, where, and how’ of the misconduct charged,” Kearns, 567 F.3d at 1124 (citations omitted), and “the time, place, and specific content of the false representations,” Edwards v. Marin Park, Inc., 356 F.3d 1058, 1066 (9th Cir. 2004) (citations omitted). C. Rule 12(b)(1) A motion under Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges the subject matter jurisdiction of the Court to, for example, adjudicate a claim for injunctive relief asserted by a plaintiff who lacks standing to bring it. Machlan v. Procter & Gamble Co., 77 F. Supp. 3d 954, 958–59 (N.D. Cal. 2015) (addressing lack of standing to seek injunctive relief under Rule 12(b)(1)). “When [a] district court lacks subject matter jurisdiction over the claim” before it, then “[d]ismissal is appropriate under Rule 12(b)(1).” Vieira v. Woodford, No. C 00- 0043 PJH, 2002 WL 1226852, at *1 (N.D. Cal. May 30, 2002). “On a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, [the] plaintiff bears the burden of proof that [subject matter] jurisdiction exists.” Grenier v. Case 2:17-cv-02042-FMO-SS Document 22-1 Filed 04/25/17 Page 11 of 26 Page ID #:172 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 - 6 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) Spencer, No. 2:12-cv-0258 KJM GGH PS, 2013 WL 211130, at *1 (E.D. Cal. Jan. 18, 2013). For this reason, a Rule 12(b)(1) motion should be granted when a plaintiff fails to allege facts sufficient to demonstrate standing to bring a claim for injunctive relief. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). IV. ARGUMENTS AND AUTHORITIES A. The Failure to Plead Any Actionable Misrepresentation Is Fatal to the Entire Complaint. 1. Plaintiffs state no claim against the product label. The Complaint suffers from a fundamental and central flaw. Plaintiffs have failed to plead an actionable claim that there was anything misleading (or false, deceptive, unfair or unlawful) about the statement “Made From Real Ginger” on the label of Canada Dry Ginger Ale. That failure disposes of the entire case, because Plaintiffs have premised every legal claim on that same challenge to the same label. See, e.g., Compl. ¶¶ 51, 69, 75, 81, 92, 97, 107, 118, 123, 131, 139, 148, 152. 3 Specifically, the law is clear: to survive a motion to dismiss, Plaintiffs must allege facts showing that Defendants advertised the products as having “characteristics, benefits, uses, qualities, sponsorships, approvals or certifications that they do not have.” See People for the Ethical Treatment of Animals v. Whole 3 In this respect, the Court’s scrutiny of the Complaint is the same for each asserted claim. See Tait v. BSH Home Appliances Corp., 289 F.R.D. 466, 480 (C.D. Cal. 2012) (“California’s UCL, FAL and CLRA rely on the same objective test, that is, whether ‘members of the public are likely to be deceived.’” (citations omitted)). The common law claims similarly require Plaintiffs to plead, with Rule 9(b) particularity, that Defendants made a misrepresentation. See Patera v. Citibank, N.A., 79 F. Supp. 3d 1074, 1084–85 (N.D. Cal. 2015) (outlining elements of fraud, deceit, and misrepresentation); see also Pirozzi v. Apple, Inc., 966 F. Supp. 2d 909, 920 (N.D. Cal. 2013) (comparing common law fraud to fraud under UCL); Two Moms & a Toy, LLC v. Int’l Playthings, LLC, 898 F. Supp. 2d 1213, 1219 (D. Colo. 2012) (“To assert a claim under the CCPA, [plaintiffs] must meet the heightened Rule 9(b) pleading standard.”). Case 2:17-cv-02042-FMO-SS Document 22-1 Filed 04/25/17 Page 12 of 26 Page ID #:173 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 - 7 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) Foods Market Cal., Inc. (“PETA”), No. 15-cv-04301 NC, 2016 WL 1642577, at *2 (N.D. Cal. Apr. 26, 2016) (dismissing CLRA, UCL, and FAL claims for failure to allege actionable misrepresentations or omissions); Hairston v. S. Beach Beverage Co., No. CV 12-1429-JFW, 2012 WL 1893818, at *4 (C.D. Cal. May 18, 2012) (dismissal necessary where, as here, “Court can conclude as a matter of law that members of the public are not likely to be deceived by the product packaging”). This Complaint is subject to still greater scrutiny because it is “grounded in fraud” and, as such, must meet the particularized pleading requirements imposed by Rule 9(b). See Kearns, 567 F.3d at 1124–25. Plaintiffs triggered Rule 9(b) by repeatedly challenging the product labels as “deceptive,” “false,” and “misleading,” and by asserting a standalone “fraud” claim based on the same alleged misconduct. See, e.g., Compl. ¶¶ 5, 27, 63, 121–28 (Count IX); Kearns, 567 F.3d at 1124–25 (“Fraud can be averred by specifically alleging fraud, or by alleging facts that necessarily constitute fraud (even if the word ‘fraud’ is not used).” (quoting Vess, 317 F.3d at 1105)). Consumer class actions must be dismissed for failing to meet that demanding standard where, as here, Plaintiffs do not plead the “who, what, when, where and how” of their challenge to product advertising and disclosures. See Katiki v. Taser Int’l, Inc., No. 12-cv-05519 NC, 2013 WL 163668, at *4 (N.D. Cal. Jan. 15, 2013). These Plaintiffs fall well short of discharging their burden under Rule 8(a), and do not come close to surmounting the even higher bar set by Rule 9(b). Throughout the Complaint they insist that “Made From Real Ginger” is misleading, fraudulent, or deceptive, see, e.g., Compl. ¶¶ 5, 27, 63, but nowhere do Plaintiffs backstop that redundant conclusion with a cogent factual pleading that the Canada Dry Products are not, in fact, made “from” real ginger. That failure to plead the falsity of the actual label alone requires dismissal. PETA, 2016 WL 1642577, at *2 (dismissing complaint where plaintiffs failed to allege facts showing that Whole Case 2:17-cv-02042-FMO-SS Document 22-1 Filed 04/25/17 Page 13 of 26 Page ID #:174 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 - 8 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) Foods advertised their products as having “characteristics, benefits, uses, qualities, sponsorships, approvals, or certifications that they d[id] not have”). 4 Having failed to plead the falsity of the actual label, Plaintiffs instead base their lawsuit entirely on the contention that “independent testing by a laboratory determined that [Canada Dry Ginger Ale] does not contain a detectable amount of ginger.” Compl. ¶ 22. That theory fails for multiple reasons. First, Defendants never promised that the Ginger Ale contained any particular concentration of ginger, much less whatever level these Plaintiffs consider “detectable.” Instead, Defendants represented, truthfully, that Canada Dry Ginger Ale is made from real ginger, i.e., that ginger is used in the creation of the product (specifically, in creation of the “natural flavor” that is disclosed on the label as an ingredient). A product made “from” ginger means that ginger was involved at “the starting point” of the process. From, Merriam-Webster’s Collegiate Dictionary (11th ed. 2014). From is not synonymous with the word contains, which means “to have within.” Contain, Merriam-Webster’s Collegiate Dictionary (11th ed. 2014) (“contain implies the actual presence of a specified substance or quantity within something”). Simply put, fraud and misrepresentation claims require Plaintiffs to plead the falsity of factual, measurable statements—and do not allow them to manufacture lawsuits by rewriting what was actually said, and calling it all a lie. See Kwan v. SanMedica Int’l, ___ F.3d ___, No. 15-15496, 2017 WL 1416483, at *6–7 (9th Cir. Apr. 21, 2017) (dismissing plaintiffs’ CLRA and UCL claims where she failed to plead the falsity of defendant’s advertisements); Otto v. Abbott Labs., Inc., No. 12-CV-1411-SCW (DTB), 2013 WL 12132064, at *2 (C.D. Cal. Mar. 15, 2013) (bald assertion that label is misleading is nothing 4 In the Ninth Circuit, Plaintiffs’ broadly thematic allegations about Defendants’ allegedly misleading labeling scheme, “which identifies a general sort of fraudulent conduct but specifies no particular circumstances of any discrete fraudulent statement, is precisely what Rule 9(b) aims to preclude.” See Cafasso, U.S. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1057 (9th Cir. 2011). Case 2:17-cv-02042-FMO-SS Document 22-1 Filed 04/25/17 Page 14 of 26 Page ID #:175 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 - 9 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) more than a legal conclusion; rather, to recover plaintiffs must demonstrate that it is plausible—not merely conceivable—that challenged representations were likely to deceive public). Second, Plaintiffs’ re-interpretation that “Made From Real Ginger” somehow means “contains a detectable amount of ginger,” is unreasonable not only because Defendants never said it, but also because the ingredients listed on the very same label makes clear that the beverage does not contain ginger as a separate declared ingredient. 5 Reasonable consumers are not deceived by partial statements and selectively quoted words, which is why courts have held that, in determining whether a label is misleading, the claim must be scrutinized in the context of the label as a whole. Here, the label reads, “Ginger Ale, 100% Natural Flavors,” in addition to “Made From Real Ginger,” and does not once mention “ginger” on the ingredients list, making it patently unreasonable for any consumer to believe that Defendants promised that the beverage contained some unspecified “detectable” amount of ginger. See Henderson v. Gruma Corp., No. CV 10-04173 AHM (AJWx) 2011 WL 1362188, at *12 (C.D. Cal. Apr. 11, 2011) (allegedly misleading phrase was unlikely to deceive reasonable consumers, where, as here, viewed in context of label as whole). Third, Plaintiffs cannot state a claim based on their own subjective expectations about some “detectable amount of ginger,” because, even if Defendants had so promised, such a nebulous standard cannot be objectively measured. Is merely a detectable amount enough, or do Plaintiffs expect some unknown higher amount to satisfy their subjective expectations of the amount of ginger? This is a far cry from the measurable performance standard that is necessary to survive dismissal. PETA, 2016 WL 1642577, at *2. 5 Plaintiffs conveniently omit the full label from their selective cut-and-paste product images. See, e.g., Compl. ¶ 17. It is properly before the Court for the reasons set forth in the Request for Judicial Notice, filed herewith. Case 2:17-cv-02042-FMO-SS Document 22-1 Filed 04/25/17 Page 15 of 26 Page ID #:176 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 - 10 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) Finally, Plaintiffs have not come close to satisfying their Rule 9(b) obligation to plead the falsity of the label with factual particularity, or even in accordance with Rule 8 since the Supreme Court raised that standard in Twombly. To the contrary, this entire lawsuit rests on the bald assertion—one sentence in one paragraph—that “independent testing by a laboratory determined that [Canada Dry Ginger Ale] does not contain a detectable amount of ginger,” Compl. ¶ 22. That is not particularity. See Kearns, 567 F.3d at 1124 (plaintiffs must plead the who, what, where, when, and how). Who is the “laboratory” responsible for the supposed testing? Why is it “independent”?—i.e., are Plaintiffs alleging that the lab did this for purposes unrelated to this lawsuit and/or without compensation? What did the anonymous laboratory actually test?—i.e., did it test the actual beverages that Plaintiffs claim to have purchased on never-identified dates during the Class Period? What compounds or markers of ginger did they test for, what is the “detectable” standard that the lab used, and why does it match Plaintiffs’ expectations? When and how was the test conducted?—i.e., with appropriate equipment, technique and in accordance with objective standards? Who conducted the test? Simply put, Plaintiffs’ “trust me” conclusions about “independent testing,” without any supporting details, are not even close to the particularized pleading of falsity required by Rule 9(b). See, e.g., Chacanaca v. Quaker Oats Co., 752 F. Supp. 2d 1111, 1126 (N.D. Cal. 2010) (requiring under Rule 9(b) that plaintiffs specifically identify “the particular statements they allege are misleading, the basis for that contention, where those statements appear on the product packaging, and the relevant time period in which the statements were used”); Padilla v. Costco Wholesale Corp., No. 11 C 7686, 2012 WL 2397012, at *4 (N.D. Ill. June 21, 2012) (while complaint alleged that “‘numerous clinical studies’” showed the statements were false, “some level of detail of the fraud beyond what [was] pled is required,” including “‘how’ Costco’s product labels were fraudulent”); Cal. Pub. Emp.’s Ret. Sys. v. Chubb Corp., 394 F.3d 126, 147 (3d Cir. 2004) (dismissing Case 2:17-cv-02042-FMO-SS Document 22-1 Filed 04/25/17 Page 16 of 26 Page ID #:177 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 - 11 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) plaintiffs’ allegations of falsity under 9(b), where based on a single “report” that failed to “identify who authored the alleged report, when it was authored, who reviewed the report, and what data its conclusions were based upon”). Here, Plaintiffs have failed to allege any facts, much less facts that are sufficiently particular, which, if true, demonstrate that Defendants’ labeling is false or misleading. None of Plaintiffs’ allegations amount to a plausible, much less particularized, pleading that a reasonable consumer was misled into buying the Canada Dry Ginger Ale because they believed it contained a “detectable amount of ginger”—despite Defendants never making any such representations. Rooney v. Cumberland Packing Corp., No. 12-cv-0033-H, 2012 WL 1512106, at *3 (S.D. Cal. Apr. 16, 2012) (“‘Likely to deceive’ implies more than a mere possibility that the advertisement might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner.” (quoting Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496, 508 (2003))). Instead, “Made from Real Ginger” simply means that real ginger is used in the creation of the product to create its distinct natural flavor, which is truthful and not misleading. See Twombly, 550 U.S. at 555 (citation omitted) (emphasizing need to bring “common sense” scrutiny to complaints). 6 2. Plaintiffs state no claim against “television advertising campaigns.” Plaintiffs similarly cannot reinvent or bolster their failed challenge to the label on Canada Dry Ginger Ale with a broad-brush attack on Defendants’ 6 Courts routinely dismiss consumer class actions based on rank speculation that “reasonable” consumers have been duped by obviously unreasonable assumptions drawn from what was actually said on grocery labels. See Carrea v. Dreyer’s Grand Ice Cream, Inc., 475 F. App’x 113, 115 (9th Cir. 2012) (dismissing claims where “no reasonable consumer [was] likely to think that ‘Original Vanilla’ refer[red] to a natural ingredient”); Werbel v. Pepsico, Inc., No. C 09-04456 SBA, 2010 WL 2673860, at *5 (N.D. Cal. July 2, 2010) (dismissing claims where plaintiff “failed to establish that a reasonable consumer would likely be deceived into believing that Cap’n Crunch derives some of its nutritional value from fruit”). Case 2:17-cv-02042-FMO-SS Document 22-1 Filed 04/25/17 Page 17 of 26 Page ID #:178 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 - 12 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) television advertising campaign. See Compl. ¶¶ 18–20. Nor can Plaintiffs forge a class action by cutting-and-pasting random snapshots that counsel appear to have downloaded, on unspecified dates, from the internet. See Compl. ¶¶ 17–20. None of the alleged advertising promises any “detectable” or particular level of ginger, or in any other respect comes closer to stating a claim than Plaintiffs failed attempt to re-interpret Defendants’ label. See supra § IV.A.1. 7 Moreover, Plaintiffs’ redundant allegations about, and pictures of, advertising fall short of the particularity demanded by Rule 9(b). None of the three Plaintiffs claim to have ever actually viewed any television commercials—much less allege that they relied on any statements in those commercials to decide to purchase ginger ale (supposedly at non-specified times “in or about” three months during the class period, see Compl. ¶¶ 11–13). Nor do they meet their Rule 9(b) burden to specify when the (never-watched) commercials aired. See Katiki, 2013 WL 163668, at *4 (dismissing false advertising claims where plaintiff failed to specify what allegedly false advertisements said, when she viewed such advertisements, and which communications she relied upon). To the extent the Complaint says anything particular, it is that websites supposedly containing the commercials were “last visited on March 14, 2017,” which forecloses any reliance claim because that date is roughly two, three, or thirteen months after each Plaintiff claims to have purchased the Ginger Ale. Compare Compl. at 6–8 nn.1–4 with ¶¶ 11–13 (listing dates of purchase as “in or around” January 2017, December 2016, and February 2016). 7 If anything, the advertising slogans that Plaintiffs sound bite—that Ginger Ale has “refreshingly real ginger taste” and “the taste of real ginger”—are the sort of “puffery” that can never support a misrepresentation claim, because there is no conceivable, objective standard for judges or juries to determine whether a product tastes “refreshing” or like real ginger. See PETA, 2016 WL 1642577, at *2 (dismissing consumer complaint based on oblique marketing “puffery”). Of course, these Plaintiffs also never allege that the beverages fell short of their own subjective taste expectations. Case 2:17-cv-02042-FMO-SS Document 22-1 Filed 04/25/17 Page 18 of 26 Page ID #:179 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 - 13 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) This is not only a Rule 9(b) pleading failure, it raises questions about Plaintiffs’ standing to litigate any challenge to the “television advertising campaigns.” See Ham v. Hain Celestial Grp., Inc., 70 F. Supp. 3d 1188, 1197 (N.D. Cal. 2014) (where, as here, plaintiff failed to allege she ever saw advertisements, she lacked standing to challenge them). Accordingly, at a minimum, Plaintiffs’ claims—to the extent based on Defendants’ television advertisements—must be dismissed. B. The warranty claims fail to state a claim. Plaintiffs’ breach of express and implied warranty claims (Counts IV–V, VII–VIII) also must be dismissed, because they too rest on the flawed theory that Defendants misrepresented the contents of Canada Dry Ginger Ale. To prevail on a breach of express warranty claim, a plaintiff must prove that: “(1) the seller’s statements constitute an affirmation of fact or promise or a description of the goods; (2) the statement was part of the basis of the bargain; and (3) the warranty was breached.” 8 In re ConAgra Foods, Inc., 90 F. Supp. 3d 919, 984 (C.D. Cal. 2015). Thus, breach of an express warranty requires a showing that Defendants made misrepresentations about their products. See CAL. COM. CODE § 2312; COLO. REV. STAT. § 4-2-312; Azoulai v. BMW of N. Am. LLC, No. 16-CV- 00589-BLF, 2017 WL 1354781, at *7 (N.D. Cal. Apr. 13, 2017). As noted, Plaintiffs have failed to so plead, and that central defect is not cured by recasting a tort claim as a “warranty” claim. California and Colorado also each recognize an implied warranty of merchantability in consumer transactions, which is “effectively a guarantee that a product is fit for the ordinary purposes for which it is used.” In re ConAgra Foods, 8 Similarly, under Colorado law, to recover for breach of express warranty, a plaintiff must prove that (1) a warranty existed; (2) the defendant breached the warranty; (3) the breach proximately caused the losses claimed as damages; and (4) timely notice of the breach was given to defendant. See In re ConAgra Foods, Inc., 90 F. Supp. 3d 919, 989 (C.D. Cal. 2015) (discussing Colorado law). Case 2:17-cv-02042-FMO-SS Document 22-1 Filed 04/25/17 Page 19 of 26 Page ID #:180 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 - 14 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) Inc., 90 F. Supp. 3d at 989. The implied warranty of merchantability can also be violated where the product “does not ‘conform to the promises or affirmations of fact made on the container or label if any.’” Hadley v. Kellogg Sales Co., ___ F. Supp. 3d ___, 2017 WL 1065293, at *21 (N.D. Cal. Mar. 21, 2017) (citing CAL. COM. CODE § 2314(2)); Lucido v. Nestle Purina Petcare Co., ___ F. Supp. 3d ___, 2016 WL 6804576, at *13 (N.D. Cal. Nov. 17, 2016) (discussing Colorado law). Plaintiffs do not attempt to allege—nor could they—that Canada Dry Ginger Ale is not “fit for the ordinary purpose” for which it is used. Canada Dry Ginger Ale is a carbonated soft drink that is meant to be consumed; there is no claim that it was not fit for that purpose. Plaintiffs do contend, however, that Defendants’ labels contain misrepresentations that constitute breaches of express and implied warranties. But as discussed supra, Section II.A, Plaintiffs’ Complaint fails to plausibly allege that any of the representations found on the Canada Dry Ginger Ale labels were false or likely to mislead a reasonable consumer. Thus, Plaintiffs’ breach of express and implied warranty claims must be dismissed. C. The contract claim fails because Plaintiffs have not alleged a contract. The breach of contract claim (Count XII) must be dismissed for failure to state a claim, because Plaintiffs have never alleged that they entered into an enforceable contract (or a contract at all) with Defendants to purchase Canada Dry Ginger Ale. Having failed to plead the essential elements of contract formation— such as the date of contracting, consideration, performance standards and other terms—the contract claim rests entirely on the boilerplate allegations that “Plaintiffs and members of the Classes have formed valid contracts that are supported by sufficient consideration, pursuant to which Defendants are obligated to provide a Product that is “Made from Real Ginger.” Compl. ¶ 147. That bald assertion is patently insufficient to plead a contract—and in fact is flatly contradicted by Plaintiffs’ acknowledgement that they did not purchase from Defendants, but instead purchased from three non-parties (list the stores). See Case 2:17-cv-02042-FMO-SS Document 22-1 Filed 04/25/17 Page 20 of 26 Page ID #:181 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 - 15 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) Compl. ¶¶ 11–13. Accordingly, Plaintiffs’ breach of contract claim must be dismissed. See First Comm. Mortg. Co. v. Reece, 89 Cal. App. 4th 731 (2001) (first element to a breach of contract claim is the existence of valid contract); W. Distrib. Co. v. Diodosio, 841 P.2d 1053, 1058 (Colo. 1992) (same). D. The quasi contract, unjust enrichment, and restitution claims fail. There is substantial question about whether Plaintiffs’ duplicative claims for quasi contract, unjust enrichment, and restitution (Counts XIII) could ever be brought on a standalone basis, See Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 762 (9th Cir. 2015) (“[T]here is not a standalone cause of action for ‘unjust enrichment,’ which is synonymous with ‘restitution.’”). However, even those courts who will recognize such claims require plaintiffs to plead and prove some kind of wrongful or inequitable conduct on the part of defendants to justify recovery. Florey Inst. of Neuroscience and Mental Health v. Kleiner Perkins Caufield & Byers, 31 F. Supp. 3d 1034, 1048 (N.D. Cal. 2014); Tennille v. W. Union Co., 751 F. Supp. 2d 1168, 1171 (D. Colo. 2010). Plaintiffs plainly have not done so. They allege that it is inequitable for Defendants to retain profits, benefits, or compensation received from the sale of Canada Dry Ginger Ale because Defendants made misleading representations about their products. Compl. ¶¶ 152, 155. For the reasons discussed infra, Section II.A, Plaintiffs have not sufficiently alleged that Defendants’ labeling was false or misleading. Accordingly, Plaintiffs’ claims for quasi contract, unjust enrichment, or restitution, which are all premised on Plaintiffs’ flawed misrepresentation claims, must be dismissed. E. Plaintiffs lack standing to seek declaratory and injunctive relief. Plaintiffs also assert claims for injunctive relief, although Plaintiffs never specifically allege the terms or the substance of the injunctive relief they seek. See, e.g., Compl. ¶¶ 57, 103, and page 32. They also seek declaratory relief, although again, they never articulate precisely what they would like the Court to declare. Case 2:17-cv-02042-FMO-SS Document 22-1 Filed 04/25/17 Page 21 of 26 Page ID #:182 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 - 16 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) Compl. ¶¶ 7, 57, 103. Putting aside the facially impermissible vagueness and ambiguity of the requested injunctive and declaratory relief, as a matter of law, Plaintiffs have not met their burden under Article III to plead their standing to seek any of it. Specifically, Plaintiffs must plead facts demonstrating their standing under Article III to pursue the relief that they seek. See Schmier v. U.S. Ct. of Appeals for the Ninth Circuit, 279 F.3d 817, 821 (9th Cir. 2002). To do so, “a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180– 81 (2000). A plaintiff must demonstrate standing for each type of relief sought. Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). To state their claims for a declaratory judgment and an injunction, Plaintiffs must demonstrate that they are “realistically threatened by a repetition” of the injury that they have sued to redress. See Gest v. Bradbury, 443 F.3d 1177, 1181 (9th Cir. 2006) (quoting Armstrong v. Davis, 275 F.3d 849, 860–61 (9th Cir. 2001), abrogated on other grounds, 543 U.S. 499 (2005) (emphasis in original)). “Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.” O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974). Here, Plaintiffs have conspicuously failed to meet their burden to plead “any real or immediate threat that [they] will be wronged again.” See Katiki, 2013 WL 163668, at *3 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)). Nor do they allege any “continuing present adverse effects” from Canada Dry Ginger Ale. To the contrary, Plaintiffs allege that they “would not have purchased” Canada Dry Ginger Ale had they been aware of the alleged misrepresentations for Case 2:17-cv-02042-FMO-SS Document 22-1 Filed 04/25/17 Page 22 of 26 Page ID #:183 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 - 17 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) which they now sue. See Compl. ¶¶ 102, 110, 120. Having affirmatively told the Court that they now are aware of the supposed truth about the products, there is no pleaded basis in the Complaint to conclude that they “face[] a future or continuing economic harm” from being deceived by the omission of those same facts about the Canada Dry Products. See Katiki, 2013 WL 163668, at *3. Indeed, Plaintiffs make clear that they would only purchase Canada Dry Ginger Ale in the future if it was reformulated to contain whatever they will consider to be a “detectable amount” of ginger, Compl. ¶ 32, showing clearly that they are not at risk of any future deception. For this reason, Courts in the Ninth Circuit have dismissed analogous consumer claims for declaratory and injunctive relief by plaintiffs who lack standing to assert them in their own name, as well as on behalf of putative classes. For example, in Wang v. OCZ Technology Group, Inc., 276 F.R.D. 618, 626 (N.D. Cal. 2011), the court dismissed the plaintiff’s claims for injunctive relief for misleading advertisement. The court held that the plaintiff lacked standing to seek injunctive relief because “any loss of value” to the allegedly misrepresented product (in that case, solid state drives) the plaintiff purchased had “already occurred.” Id. The plaintiff was in no danger of paying an inflated price for the product again, nor did the plaintiff even allege a likelihood that he would once again purchase the product at issue. Id. Because the possibility of future harm to the plaintiff was “speculative at best,” his claims were “certainly insufficient to warrant injunctive relief.” Id. at 627 (emphasis added). Similarly, in Cattie v. Wal-Mart Stores, Inc., 504 F. Supp. 2d 939 (S.D. Cal. 2007), the court ordered the plaintiff to show cause why it should not dismiss on standing grounds her claims for declaratory and injunctive relief under the UCL and CLRA pertaining to Wal-Mart’s alleged false advertising (in that case, the thread count of its linens). Ultimately, the court ruled that, even if the plaintiff in the past had been harmed by Wal-Mart’s advertising, “it is unclear how prospective relief Case 2:17-cv-02042-FMO-SS Document 22-1 Filed 04/25/17 Page 23 of 26 Page ID #:184 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 - 18 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) will redress her injury, since she is now fully aware of the linens’ thread count.” Id. at 951. Plaintiffs are now fully aware of the alleged deception upon which they sue, i.e., that Canada Dry Ginger Ale does not contain whatever acceptably “detectable” level of ginger they claim to have wanted. See Compl. ¶¶ 3, 22. Thus, just like in Cattie and Wang, these Plaintiffs are under no legitimate “threat of suffering actual or imminent future harm” as a result of Defendants’ alleged deception, and as such cannot maintain claims for injunctive or declaratory relief. See Campion v. Old Republic Home Protection Co., 861 F. Supp. 2d 1139, 1150 (S.D. Cal. 2012); Cattie, 504 F. Supp. 2d at 951; Wang, 276 F.R.D. at 626. Finally, because the Plaintiffs individually lack standing, “the standing of unnamed class members will not suffice to give the Court jurisdiction to grant” injunctive and declaratory relief for the putative class. See Cattie, 504 F. Supp. 2d at 951 (citing Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1045 (9th Cir. 1999)); see also Katiki, 2013 WL 163668, at *3 (same). CONCLUSION For the foregoing reasons, the Court should dismiss the Complaint. Case 2:17-cv-02042-FMO-SS Document 22-1 Filed 04/25/17 Page 24 of 26 Page ID #:185 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 - 19 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) DATED: April 25, 2017 By: /s/ Jonathan A. Shapiro BAKER BOTTS L.L.P. Jonathan A. Shapiro (SBN# 257199) jonathan.shapiro@bakerbotts.com 101 California Street, Suite 3600 San Francisco, CA 94111 Telephone: (415) 291-6204 Facsimile: (415) 2916304 Van H. Beckwith (not admitted in California) van.beckwith@bakerbotts.com Jessica E. Underwood (not admitted in California) jessica.underwood@bakerbotts.com 2001 Ross Avenue, Suite 600 Dallas, TX 75201-2980 Telephone: (214) 953-6500 Facsimile: (214) 953-6503 Attorneys for Defendants DR PEPPER SNAPPLE GROUP, INC. AND DR PEPPER/SEVEN UP, INC. Case 2:17-cv-02042-FMO-SS Document 22-1 Filed 04/25/17 Page 25 of 26 Page ID #:186 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 - 20 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) CERTIFICATE OF SERVICE I hereby certify that on April 25, 2017, I electronically filed the above document with the U.S. District Court for the Central District of California by using the CM/ECF system. All participants in the case are registered CM/ECF users who will be served by the CM/ECF system. /s/ Jonathan A. Shapiro_______ Jonathan A. Shapiro Case 2:17-cv-02042-FMO-SS Document 22-1 Filed 04/25/17 Page 26 of 26 Page ID #:187 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 FOR THE CENTRAL DISTRICT OF CALIFORNIA ARASH HASHEMI, et al., Plaintiffs, v. DR PEPPER SNAPPLE GROUP, INC., et al., Defendants. CASE NO. 2:17-cv-02042-FMO (SSx) CLASS ACTION [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS UNDER RULES 12(B)(1), 12(B)(6), AND 9(B) Date: May 25, 2017 Time: 10:00 a.m. Courtroom: 6D Judge: Honorable Fernando M. Olguin Defendants Dr Pepper Snapple Group, Inc. and Dr Pepper/Seven Up, Inc.’s Motion to Dismiss Under Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 9(b) came on regularly for hearing before this Court on May 25, 2017, the Honorable Fernando M. Olguin presiding. After full consideration of the briefs and arguments presented, the oral arguments of counsel, and good cause appearing, IT IS HEREBY ORDERED THAT: Plaintiffs’ Complaint fails to state a claim upon which relief can be granted. Therefore, the Court finds that each and every one of Plaintiffs’ claims fail as a matter of law and are dismissed with prejudice. IT IS SO ORDERED. DATED ____________, 2017. _________________________________ United States District Judge Case 2:17-cv-02042-FMO-SS Document 22-2 Filed 04/25/17 Page 1 of 2 Page ID #:188 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 hereby certify that on April 25, 2017, I electronically filed the above document with the U.S. District Court for the Central District of California by using the CM/ECF system. All participants in the case are registered CM/ECF users who will be served by the CM/ECF system. /s/ Jonathan A. Shapiro______ Jonathan A. Shapiro Case 2:17-cv-02042-FMO-SS Document 22-2 Filed 04/25/17 Page 2 of 2 Page ID #:189 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 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) BAKER BOTTS L.L.P. Jonathan A. Shapiro (SBN# 257199) jonathan.shapiro@bakerbotts.com 101 California Street, Suite 3600 San Francisco, CA 94111 Telephone: (415) 291-6204 Facsimile: (415) 291-6304 Van H. Beckwith (not admitted in California) van.beckwith@bakerbotts.com Jessica E. Underwood (not admitted in California) jessica.underwood@bakerbotts.com 2001 Ross Avenue, Suite 600 Dallas, TX 75201-2980 Telephone: (214) 953-6500 Facsimile: (214) 953-6503 Attorneys for Defendants DR PEPPER SNAPPLE GROUP, INC. AND DR PEPPER/SEVEN UP, INC. UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA ARASH HASHEMI, et al., Plaintiffs, v. DR PEPPER SNAPPLE GROUP, INC., et al., Defendants. Case No. 2:17-CV-02042-FMO (SSx) CLASS ACTION DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS CLASS ACTION COMPLAINT UNDER RULES 12(B)(6), 12(B)(1), AND 9(B) Date: Thursday, May 25, 2017 Time: 10:00 AM Courtroom: 6D Judge: Honorable Fernando M. Olguin Case 2:17-cv-02042-FMO-SS Document 22-3 Filed 04/25/17 Page 1 of 4 Page ID #:190 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 -1- REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX Defendants Dr Pepper Snapple Group, Inc. and Dr Pepper/Seven Up, Inc. (“DPSG”) respectfully request that the Court take judicial notice of certain labels, true and correct images of which are attached as Exhibits A and B to the Declaration of Danh Lloyd in Support of Defendants’ Motion to Dismiss Plaintiffs’ Class Action Complaint. In general, the Court may take judicial notice of any fact that is “not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.” FED. R. EVID. 201(b). A court shall take judicial notice if requested by a party and supplied with the necessary information. Fed. R. Evid. 201(d); see also United States v. Ritchie, 342 F.3d 903, 909 (9th Cir. 2003) (finding that “[f]acts are indisputable, and thus subject to judicial notice, only if they are ‘generally known’ . . . ‘capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned”). Courts may take judicial notice of food and beverage labels when those labels form the basis of the relevant cause of action. Plaintiffs’ Complaint attaches images of a selective portion of Defendants’ product labels, see Compl. ¶ 17, and relies on those partial images repeatedly, see, e.g., id. ¶¶ 2, 11–13, 21. Because “these labels form the basis of the relevant causes of action,” the Court should consider them in their entirety for purposes of defendants’ motion to dismiss. Von Koenig v. Snapple Beverage Corp., 713 F. Supp. 2d 1066, 1073 (E.D. Cal. 2010). Pursuant to Federal Rule of Evidence 201, DPSG respectfully requests that the Court take judicial notice of the following:  Exhibit A: a true and correct image of the label for Canada Dry Ginger Ale that was used in the marketplace at the time Plaintiffs allegedly purchased Canada Dry Ginger Ale (i.e., in January 2017, December 2016, and February 2016). Case 2:17-cv-02042-FMO-SS Document 22-3 Filed 04/25/17 Page 2 of 4 Page ID #:191 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 - 2 - REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX)  Exhibit B: a true and correct image of the label for Canada Dry Ginger Ale, which may have been used for a short period of time in 2016 and 2017. DATED: April 25, 2017 By: /s/ Jonathan A. Shapiro BAKER BOTTS L.L.P. Jonathan A. Shapiro (SBN# 257199) jonathan.shapiro@bakerbotts.com 101 California Street, Suite 3600 San Francisco, CA 94111 Telephone: (415) 291-6204 Facsimile: (415) 2916304 Van H. Beckwith (not admitted in California) van.beckwith@bakerbotts.com Jessica E. Underwood (not admitted in California) jessica.underwood@bakerbotts.com 2001 Ross Avenue, Suite 600 Dallas, TX 75201-2980 Telephone: (214) 953-6500 Facsimile: (214) 953-6503 Attorneys for Defendants DR PEPPER SNAPPLE GROUP, INC. AND DR PEPPER/SEVEN UP, INC. Case 2:17-cv-02042-FMO-SS Document 22-3 Filed 04/25/17 Page 3 of 4 Page ID #:192 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 - 3 - REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-02042-FMO (SSX) CERTIFICATE OF SERVICE I hereby certify that on April 25, 2017, I electronically filed the above document with the U.S. District Court for the Central District of California by using the CM/ECF system. All participants in the case are registered CM/ECF users who will be served by the CM/ECF system. /s/ Jonathan A. Shapiro_______ Jonathan A. Shapiro Case 2:17-cv-02042-FMO-SS Document 22-3 Filed 04/25/17 Page 4 of 4 Page ID #:193 Case 2:17-cv-02042-FMO-SS Document 22-4 Filed 04/25/17 Page 1 of 2 Page ID #:194 Case 2:17-cv-02042-FMO-SS Document 22-4 Filed 04/25/17 Page 2 of 2 Page ID #:195 Case 2:17-cv-02042-FMO-SS Document 22-5 Filed 04/25/17 Page 1 of 2 Page ID #:196 Case 2:17-cv-02042-FMO-SS Document 22-5 Filed 04/25/17 Page 2 of 2 Page ID #:197 Case 2:17-cv-02042-FMO-SS Document 22-6 Filed 04/25/17 Page 1 of 2 Page ID #:198 Case 2:17-cv-02042-FMO-SS Document 22-6 Filed 04/25/17 Page 2 of 2 Page ID #:199