David Greenstein v. The Pictsweet Company, et al

NOTICE OF MOTION AND MOTION to Dismiss First Amended Complaint

C.D. Cal.January 17, 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 B R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 SM01DOCS\1175973.2 NOTICE OF MOTION TO DISMISS BRYAN CAVE LLP Robert E. Boone III (California Bar No. 132780) reboone@bryancave.com Nancy Franco (California Bar No. 294856) nancy.franco@bryancave.com 120 Broadway, Suite 300 Santa Monica, CA 90401-2386 Telephone: (310) 576-2100 Facsimile: (310) 576-2200 Attorneys for Defendant THE PICTSWEET COMPANY UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DAVID GREENSTEIN, Plaintiff, v. THE PICTSWEET COMPANY; and DOES 1-5 inclusive, Defendants. Case No. 2:16-cv-08008 JFW (MRWx) Assigned To Hon. John F. Walter DEFENDANT THE PICTSWEET COMPANY’S NOTICE OF MOTION TO DISMISS THE FIRST AMENDED COMPLAINT [Filed Concurrently With Motion To Dismiss; Request For Judicial Notice; and (Proposed) Order] Date: February 27, 2017 Time: 1:30 p.m. Courtroom: 7A Action Filed: September 20, 2016 Trial Date: May 9, 2017 Case 2:16-cv-08008-JFW-MRW Document 50 Filed 01/17/17 Page 1 of 5 Page ID #:436 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 SM01DOCS\1175973.2 1 NOTICE OF MOTION TO DISMISS TO PLAINTIFF DAVID GREENSTEIN, IN PRO PER: PLEASE TAKE NOTICE that on February 27, 2017, at 1:30 p.m., before the Honorable John F. Walter, United States District Judge for the Central District of California, at the 1st Street Courthouse, located at 350 W. 1st Street, Los Angeles, California 90012, in Courtroom 7A, on the 7th floor, Defendant The Pictsweet Company (“Pictsweet”) will and hereby does move this Court to dismiss the First Amended Complaint (“FAC”) of David Greenstein (“Plaintiff”) on the following grounds: (i) the FAC fails to allege facts sufficient to state a claim for violation of California Business and Professions Code § 12606.2 or 21 C.F.R. § 100.100; (ii) the FAC fails to allege facts sufficient to state a claim under the California Unfair Competition Law (“UCL”) on the basis of either “unlawful, unfair or fraudulent” business practices (Cal. Bus. & Prof. Code § 17200 et seq.) or “untrue or misleading advertising” (Cal. Bus. & Prof. Code § 17500 et seq.); (iii) the FAC does not satisfy the plausibility standard of Rule 8 of the Federal Rules of Civil Procedure (“FRCP”); (iv) the FAC does not satisfy the particularity requirement of FRCP 9(b); (v) Plaintiff’s claim is preempted by the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 343-1 and 21 C.F.R. §100.100; and (vi) dismissal should be with prejudice and without leave to amend because amendment would be futile. The Motion to Dismiss is based on this Notice of Motion, the Memorandum of Points and Authorities in support thereof, the concurrently filed Request For Judicial Notice, and the pleadings and papers on file with the Court in this matter. This Motion is made following the conference of counsel pursuant to the Court’s Standing Order and Local Rule 7-3 which took place on January 4, 2017. See Doc. 43, 1:1-5. Counsel of record for Pictsweet, Robert E. Boone III and Nancy Franco, and Plaintiff, in pro per, participated in the conference via telephone. Id. at Case 2:16-cv-08008-JFW-MRW Document 50 Filed 01/17/17 Page 2 of 5 Page ID #:437 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 SM01DOCS\1175973.2 2 NOTICE OF MOTION TO DISMISS 1:5-7. Ms. Franco communicated Pictsweet’s anticipated grounds for the Motion, including Pictsweet’s position that: (i) when the Court granted Pictsweet’s Motion to Dismiss the Complaint, it granted leave to amend, but the Court made clear that the FAC “must allege specific factual allegations supporting each and every element of any claim alleged against [Pictsweet], and each purported violation of a statute must be alleged in a separate claim for relief.” (Doc. 38) The FAC fails to do so; (ii) the FAC does not allege facts sufficient to state a claim against Pictsweet; (iii) like the original Complaint, the FAC identifies the incorrect slack fill statute. Specifically, the FAC attempts to state a claim against Pictsweet for violation of California Business and Professions Code § 12606(b), but that statute applies to commodities, not food containers; (iv) in the first paragraph of the FAC, it indicates Plaintiff is only asserting one cause of action against Pictsweet pursuant to the identified slack fill statute. Yet elsewhere in the FAC Plaintiff seems to allege claims under Sections 17200 and 17500 of the UCL. Plaintiff should be required to allege separate claims for purported violations of the UCL; (v) the FAC does not satisfy the pleading requirements of Federal Rule of Civil Procedure 8 or 9, and it continues to be unclear from the FAC whether Plaintiff alleges unlawful conduct, fraudulent conduct, or unfair conduct under the UCL; and (vi) the FAC fails to allege facts establishing a violation of California’s slack fill statute applicable to food products, Business and Professions Code Section 12606.2, and specifically facts showing that alleged slack fill in the product packaging is non-functional, including that none of the safe harbors in the statute’s definition of non-functional slack fill applies. To the contrary, Plaintiff concedes that at least one of the safe harbor provisions applies because he admits that Case 2:16-cv-08008-JFW-MRW Document 50 Filed 01/17/17 Page 3 of 5 Page ID #:438 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 SM01DOCS\1175973.2 3 NOTICE OF MOTION TO DISMISS Pictsweet’s package is intended to cook the frozen corn. Therefore, the food preparation safe harbor under Section 12606.2(c)(4) applies and any slack fill in the package cannot be considered non-functional. Id. at 1:12-2:15. Plaintiff disagreed with Pictsweet’s position on the aforementioned points and the parties did not resolve their disagreement. Id. at 2:16-28. Dated: January 17, 2017 BRYAN CAVE LLP Robert E. Boone III Nancy Franco By: /s/ Robert E. Boone III Robert E. Boone III Attorneys for Defendant The Pictsweet Company Case 2:16-cv-08008-JFW-MRW Document 50 Filed 01/17/17 Page 4 of 5 Page ID #:439 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 SM01DOCS\1175973.2 1 PROOF OF SERVICE PROOF OF SERVICE I am employed in the County of Los Angeles, State of California; I am over the age of 18 years and not a party to the within action; my business address is 120 Broadway, Suite 300, Santa Monica, CA 90401-2386. On January 17, 2017, I served the foregoing document(s) described as: DEFENDANT THE PICTSWEET COMPANY’S NOTICE OF MOTION TO DISMISS THE FIRST AMENDED COMPLAINT on the interested party in this action by placing a true and correct copy thereof enclosed in a sealed envelope addressed as follows: David Greenstein 17639 Sherman Way, A-35 Van Nuys, CA 91406 talosian70@hotmail.com Plaintiff In Pro Per (BY MAIL) I placed a true copy of the foregoing document in a sealed envelope addressed to each interested party as set forth above. I placed each such envelope, with postage thereon fully prepaid, for collection and mailing at Bryan Cave LLP, Santa Monica, California. I am readily familiar with Bryan Cave LLP’s practice for collection and processing of correspondence for mailing with the United States Postal Service. Under that practice, the correspondence would be deposited in the United States Postal Service on that same day in the ordinary course of business. (BY ELECTRONIC SERVICE) - By electronic filing with the Clerk of the Court using the CM/ECF System, which will send a Notice of Electronic Filing (NEF) to all parties with an e-mail address of record, who have filed a Notice of Consent to Electronic Service in this action FEDERAL: I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on January 17, 2017, at Santa Monica, California /s/ Lorena Lazheztter Lorena Lazheztter Case 2:16-cv-08008-JFW-MRW Document 50 Filed 01/17/17 Page 5 of 5 Page ID #:440 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 SM01DOCS\1175974.6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BRYAN CAVE LLP Robert E. Boone III (California Bar No. 132780) reboone@bryancave.com Nancy Franco (California Bar No. 294856) nancy.franco@bryancave.com 120 Broadway, Suite 300 Santa Monica, CA 90401-2386 Telephone: (310) 576-2100 Facsimile: (310) 576-2200 Attorneys for Defendant THE PICTSWEET COMPANY UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DAVID GREENSTEIN, Plaintiff, v. THE PICTSWEET COMPANY; and DOES 1-5 inclusive, Defendants. Case No. 2:16-cv-08008 JFW (MRWx) Assigned To Hon. John F. Walter DEFENDANT THE PICTSWEET COMPANY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS THE FIRST AMENDED COMPLAINT [Filed Concurrently With Notice of Motion To Dismiss; Request For Judicial Notice; and (Proposed) Order] Date: February 13, 2017 Time: 1:30 p.m. Courtroom: 7A Action Filed: September 20, 2016 Trial Date: May 9, 2017 Case 2:16-cv-08008-JFW-MRW Document 50-1 Filed 01/17/17 Page 1 of 29 Page ID #:441 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 SM01DOCS\1175974.6 i TABLE OF CONTENTS Table of Contents Page I. INTRODUCTION ............................................................................................. 1 II. FACTUAL BACKGROUND ........................................................................... 3 III. LEGAL STANDARD ....................................................................................... 4 IV. THE FIRST AMENDED COMPLAINT SHOULD BE DISMISSED ............ 6 A. Plaintiff’s Conclusory Allegations Do Not Satisfy the Plausibility Standard of Rule 8 or the Particularity Requirement of Rule 9(b) ......... 6 B. Plaintiff Fails to Properly Allege a Violation of Section 12606.2 .......... 7 C. Plaintiff Fails To State A Claim Under The UCL ................................ 12 1. The FAC Does Not State A Claim Under Section 17200 .......... 12 a. The FAC Does Not Adequately Allege “Unlawful” Conduct ............................................................................... 12 b. The FAC Does Not Adequately Allege “Unfair” Conduct ............................................................................... 13 c. The FAC Does Not Adequately Allege “Fraudulent” Conduct ............................................................................... 14 2. The FAC Does Not State A Claim Under Section 17500 .......... 15 D. Plaintiff’s Claims Are Preempted Insofar As He Seeks to Impose Greater Requirements Than 21 C.F.R. § 100.100 ................................ 19 V. LEAVE TO AMEND WOULD BE FUTILE ................................................. 21 VI. CONCLUSION ............................................................................................... 22 Case 2:16-cv-08008-JFW-MRW Document 50-1 Filed 01/17/17 Page 2 of 29 Page ID #:442 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 SM01DOCS\1175974.6 ii TABLE OF AUTHORITIES Table of Authorities Cases Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009) ............................................................ 4, 5, 10 Bautista v. Cytosport Inc., 15-CV-9081 (CS), 2016 WL 7192109 (S.D.N.Y. Dec. 12, 2016) ..................... 2, 11 Bell Atl. Corp. v. Twombly, 550 U.S. 544 127 S. Ct. 1955 (2007) ................................................................... 4, 6 Berryman v. Merit Prop. Mgmt., Inc., 152 Cal. App. 4th 1544 (2007). .............................................................................. 12 Bush v. Mondelez Int’l, Inc., No. 16-CV-02460-RS, 2016 WL 7324990 (N.D. Cal. Dec. 16, 2016) ............. 2, 11 Bush v. Mondelez Int’l, Inc., No. 16-CV-02460-RS, 2016 WL 5886886 (N.D. Cal. Oct. 7, 2016) ................... 10 Capcom Co. v. MKR Grp., Inc., 2008 WL 4661479 (N.D. Cal. Oct. 20, 2008) .......................................................... 5 Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163 (1999) ............................................................................................ 13 Chabner v. United of Omaha Life Ins. Co., 225 F. 3d 1042 (9th Cir. 2000) ......................................................................... 12, 13 Chacanaca v. Quaker Oats Co., 752 F.Supp.2d 1111 (N.D.Cal.2010) ...................................................................... 20 Churchill Vill., L.L.C. v. Gen. Elec. Co., 169 F. Supp. 2d 1119 (N.D. Cal. 2000) ................................................................. 16 Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566 (9th Cir. 2004) .................................................................................. 16 Cooper v. Pickett, 137 F.3d 616 (9th Cir. 1997) ................................................................................ 5, 7 Fermin v. Pfizer Inc., No. 15 CV 2133 (SJ) (ST), 2016 WL 6208291 (E.D.N.Y. Oct. 18, 2016) ............ 11 Freeman v. Time, Inc., 68 F.3d 285 (9th Cir.1995) ............................................................................... 11, 16 Hawkins v. UGI Corp., No. CV1408461DDPJCX, 2016 WL 2595990 (C.D. Cal. May 4, 2016)) ............ 17 Haskell v. Time, Inc., 857 F. Supp. 1392, 1396-98 (E.D. Cal. 1994) .......................................................... 9 Case 2:16-cv-08008-JFW-MRW Document 50-1 Filed 01/17/17 Page 3 of 29 Page ID #:443 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 SM01DOCS\1175974.6 iii TABLE OF AUTHORITIES Hill v. Roll Int’l Corp., 195 Cal. App. 4th 1295 (2011) .............................................................................. 16 In re Tobacco II Cases, 46 Cal. 4th 298 (2009) ............................................................................................ 14 Ivie v. Kraft Foods Glob., Inc., No. C-12-02554-RMW, 2013, WL 685373 8-11 (N.D. Cal. Feb. 25, 2013) ......... 20 Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir. 2009) ................................................................ 6, 12, 14 ,16 Krantz v. BT Visual Images, 89 Cal. App. 4th 164 (2001) ............................................................................. 12, 13 Lam v. Gen. Mills, Inc., 859 F. Supp. 2d 1097, 1102 (N.D. Cal. 2012) .................................................. 19, 20 Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496, 508 (2003) ......................................................................... 16 Lazar v. Hertz, Corp., 69 Cal. App. 4th 1494 (1999) ................................................................................. 12 LT Int’l Ltd. v. Shuffle Master, Inc., 8 F. Supp. 3d 1238 (D. Nev. 2014) ...................................................................... 5, 6 McKinniss v. Sunny Delight Beverages Co., No. CV 07-02034-RGK (JCx), 2007 WL 4766525 (C.D. Cal. Sept. 4, 2007) .........12 O’Connor v. Henkel Corp., No. 14-CV-5547 ARR MDG, 2015 WL 5922183 (E.D.N.Y. Sept. 22, 2015) ..................................................................................... 10 Park v. Welch Foods, Inc., No. 12-06449, 2013 WL 5405318 (N.D. Cal. Sept. 26, 2013 ................................ 11 Peviani v. Hostess Brands, Inc., 750 F.Supp.2d 1111 (C.D.Cal2010) ....................................................................... 20 Red v. The Kroger Co., No. 10-1025, 2010 WL 4262037 (C.D. Cal Sept. 2, 2010) ................................... 20 Scripps Clinic v. Sup. Ct., 108 Cal. App. 4th 917 (2003) ................................................................................. 13 Stuart v. Cadbury Adams USA, LLC, 458 F. App’x 689 (9 th Cir. 2011) ........................................................................... 17 Swartz v. KPMG LLP, 476 F.3d 756 (9th Cir.2007) ................................................................................. 5, 9 Vasquez v. Los Angeles. Cty., 487 F.3d 1246 (9th Cir. 2007) ............................................................................ 5, 21 Case 2:16-cv-08008-JFW-MRW Document 50-1 Filed 01/17/17 Page 4 of 29 Page ID #:444 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 SM01DOCS\1175974.6 iv TABLE OF AUTHORITIES Ventress v. Japan Airlines, 603 F.3d 676 (9th Cir.2010) ................................................................................... 21 Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003) ............................................................................ 6, 16 Victor v. R.C. Bigelow, Inc., No. 13-02976, 2014 WL 1028881 (N.D. Cal. Mar. 14, 2014) .............................. 11 Videtto v. Kellogg USA, No. 2:08CV01324-MCEDAD, 2009 WL 1439086 at *2 (E.D. Cal. May 21, 2009) ............................................................................... 16, 17 Watson Labs., Inc. v. Rhone-Poulenc Rorer, Inc., 178 F.Supp.2d 1099, 1121 (C.D. Cal. 2001) .......................................................... 14 Werbel ex rel. v. Pepsico, Inc., No. C 09-04456 SBA, 2010 WL 2673860, (N.D. Cal. July 2, 2010) .............. 15, 21 Workman v. Plum Inc., 141 F. Supp. 3d 1032 (N.D. Cal. 2015) .................................................................. 18 Statutes 21 C.F.R. § 100.1(c)(4) .............................................................................................. 19 21 C.F.R. § 100.100 ............................................................................................ passim 21 C.F.R. § 100.100(a)(1)-(6) .....................................................................................11 21 U.S.C. § 343-1 ...................................................................................................... 19 21 U.S.C. §. 343(d) .................................................................................................... 19 Cal. Bus. Prof. Code § 12606(b) ......................................................................... 1, 6, 7 Cal. Bus. Prof. Code § 12606.2 .......................................................................... passim Cal. Bus. Prof. Code § 12606.2(c) ...................................................................... passim Cal. Bus. Prof. Code §12606.2(c)(4) ................................................................. 1, 9, 21 Cal. Bus. Prof. Code § 12606.2(d) .................................................................. 7, 10, 15 Cal. Bus. Prof. Code § 12606.2(f) ....................................................................... 19, 21 Cal. Bus. Prof. Code § 17200 ............................................................................. passim Cal. Bus. Prof. Code §§ 17200─17209 ..................................................................... 12 Cal. Bus. Prof. Code § 17500 ............................................................................. passim Rules Fed. R. Civ. P. 12(b)(6) ................................................................................... 1, 4, 5, 9 Case 2:16-cv-08008-JFW-MRW Document 50-1 Filed 01/17/17 Page 5 of 29 Page ID #:445 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 SM01DOCS\1175974.6 v TABLE OF AUTHORITIES Fed. R. Civ. P. 8 ............................................................................................. 1, 5, 6, 11 Fed. R. Civ. P. 8(a) ...................................................................................................... 5 Fed. R. Civ. P. 8(a)(2) .................................................................................................. 4 Fed. R. Civ. P. 9 ............................................................................................... 5, 11, 14 Fed. R. Civ. P. 9(b) ............................................................................................. passim Other Authorities U.S. Food & Drug Admin., Misleading Containers; Nonfunctional Slack-Fill, 58 FR 2957-01 .......................................................................................................... 8 Case 2:16-cv-08008-JFW-MRW Document 50-1 Filed 01/17/17 Page 6 of 29 Page ID #:446 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff David Greenstein’s First Amended Complaint (“FAC”) fails to cure the defects in the original Complaint. Plaintiff merely repeats the same conclusory allegations regarding “nonfunctional slack fill” that this Court held were insufficient to state a claim against Defendant The Pictsweet Company (“Pictsweet”). See Doc. 38 (“As Defendant points out in its Motion, the Complaint consists of nothing more than a series of conclusory statements without any facts to support those statements.”) The FAC still fails to state a claim under Rule 12(b)(6), and does not satisfy the plausibility standard of Rule 8 or the particularity requirement of Rule 9(b). Plaintiff’s bald allegation that he purchased a ten ounce bag of Pictsweet frozen corn containing “nonfunctional slack fill” is still insufficient to state a claim under the federal or California slack fill statutes. Moreover, Plaintiff persists in attempting to state a claim against Pictsweet under the wrong statute: California Business and Professions Code § 12606(b) applies to commodities, not food containers. See FAC, ¶ 1. California’s nonfunctional slack fill statute applicable to packaged food products is Business and Professions Code § 12606.2, which mirrors Federal Food, Drug, and Cosmetic Act regulation 21 C.F.R. § 100.100. Both contain a detailed definition of what constitutes nonfunctional slack fill. The FAC does not allege facts establishing that Pictsweet’s frozen corn packaging contained nonfunctional slack fill in violation of § 12606.2 or 21 C.F.R. § 100.100. The FAC does not state facts from which the Court can reasonably infer that each of the six safe harbor provisions enumerated by those statutes, and expressly incorporated in the statutes’ definition of “nonfunctional slack fill,” is inapplicable. To the contrary, Plaintiff concedes that at least one of the safe harbor provisions applies by alleging Pictsweet’s corn package was intended to steam the corn in the bag, unopened, using a microwave. See FAC, ¶ 5; see also §12606.2(c)(4) (“The Case 2:16-cv-08008-JFW-MRW Document 50-1 Filed 01/17/17 Page 7 of 29 Page ID #:447 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS need for the package to perform a specific function, such as where packaging plays a role in the preparation or consumption of a food, if that function is inherent to the nature of the food and is clearly communicated to consumers.”). By definition, if any of the safe harbor provisions applies, slack fill in the package is functional and therefore permissible. See Cal. Bus. & Prof. Code § 12606.2(c). Plaintiff cannot state a claim by simply alleging, in conclusory fashion, that the slack fill serves no purpose. Similar conclusory allegations regarding nonfunctional slack fill have been dismissed by this Court and other district courts. See Bush v. Mondelez Int’l, Inc., No. 16-CV-02460-RS, 2016 WL 7324990, *4 (N.D. Cal. Dec. 16, 2016) (granting motion to dismiss slack fill claims where the “allegations continue to be entirely conclusory” and plaintiff “ha[d] not amended them in any meaningful way”); see also Bautista v. Cytosport Inc., 15-CV-9081 (CS), 2016 WL 7192109, at *5 (S.D.N.Y. Dec. 12, 2016) (holding “a plaintiff must possess some factual basis before bringing a [nonfunctional slack fill claim]” and dismissing the plaintiff’s conclusory allegations as insufficient to state a nonfunctional slack fill claim). Plaintiff fails to state a claim under California’s Unfair Competition Law (“UCL”) on the basis of either “unlawful, unfair or fraudulent” business practices (see Cal. Bus. & Prof. Code § 17200) or “untrue or misleading advertising” (see Cal. Bus. & Prof. Code § 17500). The FAC does not articulate how any labeling on the product was false or misleading. Plaintiff admits the package accurately identified the net weight of the corn inside. See FAC, ¶ 4. Plaintiff does not allege his package contained less. Plaintiff’s allegation that he could not see the product through the packaging is inconsequential unless and until he establishes - with facts - that the empty space in the package constitutes “nonfunctional slack fill” as defined by § 12606.2 or 21 C.F.R. § 100.100. Neither statute requires the package to allow the consumer to fully view the product inside unless this definition is satisfied. Case 2:16-cv-08008-JFW-MRW Document 50-1 Filed 01/17/17 Page 8 of 29 Page ID #:448 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS Plaintiff cannot lump his purported § 17200 and § 17500 claims into one count. Each must be pled as a separate claim. See Minute Order, Doc. 38 (“[I]n the First Amended Complaint, Plaintiff must allege specific factual allegations supporting each and every element of any claim alleged against Defendant, and each purported violation of a statute must be alleged in a separate claim for relief.”) Finally, insofar as Plaintiff construes § 12606.2 or his UCL claims to require more than 21 C.F.R. § 100.100, those claims are preempted by federal law. Plaintiff’s continued failure to set forth facts to support his allegations demonstrates that further leave to amend is futile. Therefore, the Court should dismiss the FAC in its entirety, with prejudice. II. FACTUAL BACKGROUND On September 20, 2016, Plaintiff filed this action against Pictsweet, arising from Plaintiff’s alleged purchase of a 10 ounce package of “Steam’ables®” Golden Cut Corn (the “Steam’ables® Corn”), around August 2016 at a Ralphs supermarket in Lakewood, California. See FAC, ¶¶ 4, 7. The FAC alleges that the package Plaintiff purchased was “filled to substantially less than it would hold” and the “empty space serves no benefit to the product or the ultimate consumer, including plaintiff.” Id. at ¶¶ 16-17. “Plaintiff knew that the product is designed to be put into a microwave, in the package, and cooked for a specific time.” Id. at ¶ 5. In fact, Pictsweet’s Steam’ables® Corn package clearly demonstrates that the package is intended to be used to prepare the corn for eating. The front of the package says, “Steams in the bag in minutes,” and contains a diagram showing the entire package inside a microwave oven. See Doc. 5, Declaration of Kevin Schwab in Support of Removal, Exhibit A. The back of the package contains detailed instructions how to steam the corn in the bag, unopened, using a microwave oven. Id. “When plaintiff bought the product, he did not expect the package to be ‘crammed full’ with corn.” FAC, ¶ 10. “He understood that a certain amount of Case 2:16-cv-08008-JFW-MRW Document 50-1 Filed 01/17/17 Page 9 of 29 Page ID #:449 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS slack-fill was needed for several reasons, including possible expansion of the bag during the cooking process.” Id. According to Plaintiff, the package, “as measured by plaintiff is Bag 7.5” High and the amount of product takes up 3.3/4” [which] leaves 36.8% of non- functional slack-fill in the package.” Id. at ¶ 5. Plaintiff alleges “Pictsweet knew there was non-functional slack fill in the product package.” Id. at ¶ 14. “[T]o facilitate the false, misleading and deceptive nature of the packaging of the product, defendants intentionally obscured the plaintiffs’ [sic] full view of the actual product, so that plaintiff and other consumers could not see the empty space in the package, which empty space serves no benefit to the product or the ultimate consumer, including plaintiff.” Id. at ¶ 17. Plaintiff further alleges that when he “saw the package, he believed there was more product in it due to its size” and if he “had known how little product there was. . . he would have looked for a better buy.” Id. at ¶¶ 8-9. The FAC alleges the above-referenced representations are “false, misleading and deceptive” and should be enjoined pursuant to California Business and Professions Code. See FAC, ¶¶ 19-24. III. LEGAL STANDARD Iqbal and Twombly. A motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim tests the sufficiency of the complaint and whether it contains “a short and plain statement of the claim showing that the pleader is entitled to relief.’” Fed. R. Civ. P. 8 (a) (2). “To survive a motion to dismiss, a complaint must contain 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, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007).). A plaintiff must provide the grounds of his entitlement to relief, which “requires more than labels and conclusions, and a formulaic recitation of a cause of action’s elements will not do.” Twombly, 550 U.S. at 545. “Factual allegations Case 2:16-cv-08008-JFW-MRW Document 50-1 Filed 01/17/17 Page 10 of 29 Page ID #:450 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS must be enough to raise a right to relief above the speculative level. . . .” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “A complaint may be dismissed as a matter of law pursuant to Rule 12(b)(6) for one of two reasons: (1) lack of a cognizable legal theory or (2) insufficient facts under a cognizable legal theory.” Capcom Co. v. MKR Grp., Inc., 2008 WL 4661479, at *3 (N.D. Cal. Oct. 20, 2008) (citation omitted). A court may dismiss a complaint without leave to amend if amendment would be futile. See Vasquez v. Los Angeles Cty., 487 F.3d 1246, 1258 (9th Cir. 2007). Rules 8(a) and 9(b). “[C]laims grounded in fraud. . . must meet both the ‘plausibility’ standard of Rule 8(a) and the ‘particularity’ standard of Rule 9(b), ensuring they meet ‘Rule 8’s requirement of simplicity, directness, and clarity,’ which ‘has among its purposes the avoidance of unnecessary discovery.” LT Int’l Ltd. v. Shuffle Master, Inc., 8 F. Supp. 3d 1238, 1243 (D. Nev. 2014) (citations omitted). Federal Rule of Civil Procedure 9(b) mandates that when “alleging fraud . . . a party must state with particularity the circumstances constituting fraud . . . .” Fed. R. Civ. P. 9. “To satisfy Rule 9(b), a plaintiff must set forth more than the neutral facts necessary to identify the transaction. The plaintiff must set forth what is false or misleading about a statement, and why it is false.” Cooper v. Pickett, 137 F.3d 616, 625 (9th Cir. 1997) (emphasis in original). “[T]he plaintiff must set forth an explanation as to why the statement or omission complained of was false or misleading” and plead “the ‘who, what, when, where, and how’ that would suggest fraud.” Id. at 625-27. “The absence of even one of these identifiers justifies dismissal.” LT Int’l Ltd., 8 F. Supp. 3d at 1246 (citing Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir.2007).). “Rule 9(b) serves three purposes: (1) to provide defendants with adequate notice to allow them to defend the charge and deter plaintiffs from the filing of complaints as a pretext for the discovery of unknown wrongs; (2) to protect those Case 2:16-cv-08008-JFW-MRW Document 50-1 Filed 01/17/17 Page 11 of 29 Page ID #:451 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS whose reputation would be harmed as a result of being subject to fraud charges; and (3) to prohibit plaintiffs from unilaterally imposing upon the court, the parties and society enormous social and economic costs absent some factual basis.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009) (internal quotation and citation omitted). The Ninth Circuit applies Rule 9(b) pleading standards to UCL claims and false advertising claims. See Kearns, 567 F.3d at 1125-27 (applying Rule 9(b) to claim for false advertising under California Business and Professions Code § 17200); see also Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1102-04 (9th Cir. 2003) (applying Rule 9(b) to claim for false advertising under California Business and Professions Code § 17500). IV. THE FIRST AMENDED COMPLAINT SHOULD BE DISMISSED A. Plaintiff’s Conclusory Allegations Do Not Satisfy the Plausibility Standard of Rule 8 or the Particularity Requirement of Rule 9(b) Although the FAC purports to assert a “[f]irst and only cause of action” against Pictsweet “based on California Business and Professions Code 12606(b),” the FAC also contains allegations related to California Business and Professions Code § 17200 and § 17500 on the basis of fraudulent conduct and misleading packaging, and seeks relief under Section 17200. See FAC, ¶¶ 19-24; see also prayer for relief. Thus, Plaintiff must satisfy the pleading requirements of Rule 8 and Rule 9(b). See LT Int’l Ltd., 8 F. Supp. 3d at 1243. The FAC does neither. Instead, Plaintiff alleges that the package he purchased was “filled to substantially less than it would hold” and, without any factual support, Plaintiff concludes that the “available space in the package” constitutes nonfunctional slack fill. See FAC, ¶ 16. It is well settled that a complaint requires more than such “labels and conclusions” or “a formulaic recitation of a cause of action’s elements” to overcome a motion to dismiss. See Twombly, 550 U.S. at 545. Like the Complaint, the FAC incoherently lumps into a single count alleged violations of various statutes, without Case 2:16-cv-08008-JFW-MRW Document 50-1 Filed 01/17/17 Page 12 of 29 Page ID #:452 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS any explanation, let alone facts, demonstrating how each such statute was violated. At a minimum, Plaintiff should have pled separate claims for the purported § 17200 and § 17500 violations, as specifically directed by the Court. See Minute Order, Doc. 38 (“[I]n the First Amended Complaint, Plaintiff must allege specific factual allegations supporting each and every element of any claim alleged against Defendant, and each purported violation of a statute must be alleged in a separate claim for relief.”) The FAC, like the Complaint before it, fails to plead particularized facts necessary to satisfy the pleading requirements of Rule 9(b). See Fed. R. Civ. P. 9(b). Repeatedly alleging that Pictsweet “engag[ed] in false, misleading and deceptive practices” and had “false, deceptive and misleading packaging” lacks the particularity required by Rule 9(b) (see FAC, ¶¶ 17, 19, 20, 22, 26) because it does not allege the requisite “who, what, when, where, and how.” See Cooper, 137 F.3d at 627. B. Plaintiff Fails to Properly Allege a Violation of Section 12606.2 Plaintiff does not identify the applicable statute - § 12606.2 - and the FAC fails to state facts establishing a violation of the statute. The FAC baldly alleges that Pictsweet violated another nonfunctional slack fill statute, California Business and Professions Code § 12606(b), but, again, that statute applies to commodities, not food containers. See FAC, ¶ 1. Slack fill is permissible under Section 12606.2 if the slack fill serves one of the enumerated functions under the statute. See Cal. Bus. & Prof. Code § 12606.2. “Slack fill in a package shall not be used as grounds to allege a violation of this section based solely on its presence unless it is nonfunctional slack fill.” Cal. Bus. & Prof. Code § 12606.2(d). Section 12606.2 prohibits the use of nonfunctional slack fill in food containers, as defined by section 12606.2(c). “A container that does not allow the consumer to fully view its contents shall be considered to be filled as to be misleading if it contains nonfunctional slack fill.” Id., § 12606.2(c) Case 2:16-cv-08008-JFW-MRW Document 50-1 Filed 01/17/17 Page 13 of 29 Page ID #:453 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS (emphasis added.) “Slack fill is the difference between the actual capacity of a container and the volume of product contained therein.” Id. Pursuant to §12606.2(c), if any one or more of the following reasons apply to a package that is filled to substantially less than its capacity, then the empty space in the package is not considered nonfunctional and is therefore permitted: (1) Protection of the contents of the package. (2) The requirements of the machines used for enclosing the contents in the package. (3) Unavoidable product settling during shipping and handling. (4) The need for the package to perform a specific function, such as where packaging plays a role in the preparation or consumption of a food, if that function is inherent to the nature of the food and is clearly communicated to consumers. (5) The fact that the product consists of a food packaged in a reusable container where the container is part of the presentation of the food and has value that is both significant in proportion to the value of the product and independent of its function to hold the food . . . (6) Inability to increase the level of fill or to further reduce the size of the package. . . . Id. The “FDA advises that, in many products, a certain level of slack-fill has a functional purpose . . . and, therefore, can be justified even though some consumers may perceive it to be misleading.” U.S. Food & Drug Admin., Misleading Containers; Nonfunctional Slack-Fill, 58 FR 2957-01. In addition, “consumer demand for convenience has led to the development of food products that may be cooked in, or eaten out of, the containers in which they are purchased.” Id. at 2961. Case 2:16-cv-08008-JFW-MRW Document 50-1 Filed 01/17/17 Page 14 of 29 Page ID #:454 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS For instance, “[a] package of microwavable brownies may contain a disposable tray in which the product is both mixed and cooked. Thus, the package would need to be large enough to accommodate a tray whose size was based, in part, on the size of the cooked brownies, not the amount of dry mix in the container.” Id. Here, Plaintiff concedes that at least one of the safe harbor provisions applies to Pictsweet’s package of Steam’ables® Corn. Specifically, Plaintiff admits that he knew Pictsweet’s package was intended to cook the frozen corn. See FAC, ¶ 5. And, in fact, the front of the package says, “Steams in the bag in minutes,” and contains a diagram showing the entire package inside a microwave oven. The back of the package contains detailed instructions how to steam the corn in the bag, unopened, using a microwave oven. See Doc. 5, Declaration of Kevin Schwab in Support of Removal, Exhibit A. 1/ Therefore, the food preparation safe harbor applies. See 12606.2(c)(4) (“The need for the package to perform a specific function, such as where packaging plays a role in the preparation or consumption of a food, if that function is inherent to the nature of the food and is clearly communicated to consumers.”). By definition, if any of the safe harbor provisions applies, slack fill in the package is functional and therefore permissible. See Cal. Bus. & Prof. Code § 12606.2(c). Plaintiff makes no attempt to address the remaining five safe harbors and the FAC does not contain any factual allegations for the Court to reasonably infer that the Steam’ables® Corn contains nonfunctional slack fill in violation of § 12606.2. Plaintiff alleges that the package of corn he purchased was “filled to substantially less than it would hold” and, without factual support, Plaintiff concludes that this constitutes “non-functional slack-fill” which “serves no benefit to the product or 1/ The Court may consider Pictsweet’s packaging in deciding this Motion because it is referenced in the FAC. See, e.g., Haskell v. Time, Inc., 857 F. Supp. 1392, 1396-98 (E.D. Cal. 1994) (court considered alleged false advertisements referenced in complaint but not attached to it on 12(b)(6) motion); see also Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). Case 2:16-cv-08008-JFW-MRW Document 50-1 Filed 01/17/17 Page 15 of 29 Page ID #:455 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS the ultimate consumer.” FAC, ¶¶ 16-17. Such allegations are precisely the “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements” that are insufficient to survive a motion to dismiss. See Iqbal, 556 U.S. at 678. Merely stating the “presence” of “nonfunctional slack fill” is insufficient to state a claim. See Cal. Bus. & Prof. Code § 12606.2(d). To state a claim, Plaintiff must allege facts demonstrating that none of the six safe harbors enumerated in the statute applies. By definition, if any of the safe harbors applies, slack fill in the package is functional and therefore permissible under the statute. See Cal. Bus. & Prof. Code § 12606.2(c); see also O’Connor v. Henkel Corp., No. 14-CV-5547 ARR MDG, 2015 WL 5922183, at *9 (E.D.N.Y. Sept. 22, 2015) (dismissing complaint where plaintiff alleged conclusory statements that the products contained slack fill and the packaging was “deceptive and misleading and was designed to increase sales” because “[s]uch conclusory statements are not entitled to the presumption of truth” and “there [were] no well-pleaded factual allegations. . . permitting [the] court to reasonably infer that defendants acted intentionally and systematically in under-filling their products”). To the extent that Plaintiff’s nonfunctional slack fill claim is brought pursuant to 21 C.F.R. § 100.100, rather than Cal. Bus. & Prof. Code § 12606.2, Plaintiff’s claim fails for the same reasons because it defines nonfunctional slack fill the same way. See 21 C.F.R. § 100.100. The Northern District of California recently granted a motion to dismiss similarly defective slack fill claims. See Bush v. Mondelez Int’l, Inc., No. 16-CV- 02460-RS, 2016 WL 5886886, at *4 (N.D. Cal. Oct. 7, 2016). In that case, the plaintiff alleged that the defendant’s Mini Chips Ahoy!, Mini Oreo, Golden Oreo Mini, Nutter Butter Bites, Mini Nilla Wafers, Ritz Bits, and Teddy Grahams contained nonfunctional slack fill. Id. at *1. The plaintiff argued that “the container size leads consumers to believe that there will be more snack food than there actually is” and that “he would not have purchased the products had he known the Case 2:16-cv-08008-JFW-MRW Document 50-1 Filed 01/17/17 Page 16 of 29 Page ID #:456 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 11 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS containers were not ‘adequately filled.’” Id. “After reciting the six circumstances in which slack-fill is functional and not misleading, under 21 C.F.R. § 100.100(a)(1)- (6), [the plaintiff] allege[d] tersely that ‘none of these circumstances apply here.’” Id. at *4. The court held these “allegations are insufficient to support a claim of unlawful packaging.” Id. (citing Victor v. R.C. Bigelow, Inc., No. 13-02976, 2014 WL 1028881, at *16 (N.D. Cal. Mar. 14, 2014) (“finding that a complaint consisting of ‘a litany of FDA regulations and federal statutes, and no factual allegation about how [the defendant’s] actions ... are either unlawful or fraudulent aside from conclusory statements ... do[es] not suffice for Rule 8’s ‘plausibility’ standard, let alone Rule 9’s ‘particularity’ standard for pleading”); Park v. Welch Foods, Inc., No. 12-06449, 2013 WL 5405318, at *5 (N.D. Cal. Sept. 26, 2013) (“dismissing amended complaint that provided ‘little more than a long summary of the FDCA and its food labeling regulations, a formulaic recitation of how these regulations apply to Defendants’ products, and conclusory allegations regarding Defendants’ ‘unlawfulness’”)). Although the court initially granted the motion to dismiss with leave to amend, the court recently granted the motion to dismiss without further leave to amend because the “allegations continue to be entirely conclusory” and plaintiff “ha[d] not amended them in any meaningful way.” Bush v. Mondelez Int’l, Inc., 2016 WL 7324990 at *4. Courts in other districts have made similar holdings. See Bautista, 2016 WL 7192109, at *5 (holding “a plaintiff must possess some factual basis before bringing a [nonfunctional slack fill claim]” and dismissing the plaintiff’s conclusory allegations as insufficient to state a nonfunctional slack fill claim). In Fermin v. Pfizer Inc., No. 15 CV 2133 (SJ) (ST), 2016 WL 6208291, at *1 (E.D.N.Y. Oct. 18, 2016), the Court granted the defendant’s motion to dismiss because the plaintiffs failed to allege facts demonstrating that the “allegedly misleading packaging was ‘likely to mislead [or deceive] a reasonable consumer acting reasonably under the circumstances.’” Id. at *2 (citing Freeman v. Time, Case 2:16-cv-08008-JFW-MRW Document 50-1 Filed 01/17/17 Page 17 of 29 Page ID #:457 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 12 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS Inc., 68 F.3d 285, 289 (9th Cir. 1995).). “The term ‘likely’ indicates that deception must be probable, not just possible.” Id. (citing McKinniss v. Sunny Delight Beverages Co., No. CV 07-02034-RGK (JCx), 2007 WL 4766525, at *3 (C.D. Cal. Sept. 4, 2007).). “It is well settled that a court may determine as a matter of law that an allegedly deceptive practice would not have misled a reasonable consumer.” Id. C. Plaintiff Fails To State A Claim Under The UCL “The UCL prohibits ‘unlawful, unfair or fraudulent business act[s] or practice[s]’ and ‘unfair, deceptive, untrue or misleading advertising.’” Kearns, 567 F.3d at 1125 (citing Cal. Bus. & Prof. Code § 17200). A claim for violation of the UCL “stand[s] or fall[s] depending on the fate of antecedent substantive causes of action.” Krantz v. BT Visual Images, L.L.C., 89 Cal. App. 4th 164, 178, 107 Cal. Rptr. 2d 209 (2001), as modified (May 22, 2001). A plaintiff cannot “plead around an absolute bar to relief simply by recasting the cause of action as one for unfair competition.” Chabner v. United of Omaha Life Ins. Co., 225 F. 3d 1042, 1048 (9th Cir. 2000). A cause of action under the UCL cannot be maintained if the conduct complained of is permitted by another provision. See id. 1. The FAC Does Not State A Claim Under Section 17200 “Section 17200 is part of the Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200-17209, and provides, in relevant part, that ‘unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice.’” Id. a. The FAC Does Not Adequately Allege “Unlawful” Conduct The “unlawful” category of the UCL “borrows violations of other laws . . . and makes those unlawful practices actionable under the UCL.” Lazar v. Hertz, Corp., 69 Cal. App. 4th 1494, 1505 (1999). To state a claim under the “unlawful” prong, Plaintiff must sufficiently allege the violation of some other law. See Berryman v. Merit Prop. Mgmt., Inc., 152 Cal. App. 4th 1544, 1554 (2007). Plaintiff fails to plead any facts in support of a claim under the UCL’s Case 2:16-cv-08008-JFW-MRW Document 50-1 Filed 01/17/17 Page 18 of 29 Page ID #:458 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 13 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS “unlawful” prong because he fails to establish Pictsweet’s packaging violated any statute. As mentioned above, Plaintiff sues under the wrong slack fill statute, and even if he had cited the correct statute(s), he still does not allege a violation. Section 12606.2 and 21 C.F.R. § 100.100 expressly provide that slack fill is permissible under certain circumstances. If any of the six enumerated safe harbors applies to the food container, the empty space in the container is considered functional and is therefore lawful. As discussed above, Plaintiff concedes that at least one of the safe harbor provisions applies. See FAC, ¶ 5. If the conduct is permissible, it does not violate a statute and, therefore, cannot violate the UCL. See Chabner, 225 F. 3d at 1048. Thus, Plaintiff’s UCL “unlawful” claim fails. See Krantz, 89 Cal. App. 4th at 178 (a claim for violation of the UCL “stand[s] or fall[s] depending on the fate of antecedent substantive causes of action.”). b. The FAC Does Not Adequately Allege “Unfair” Conduct “Unfair” conduct under § 17200 has been defined as conduct that “offends an established public policy or . . . is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” Scripps Clinic v. Superior Court, 108 Cal. App. 4th 917, 939 (2003). “In determining whether the challenged conduct is unfair within the meaning of the unfair competition law, courts may not apply purely subjective notions of fairness.” Id. at 941 (internal quotation omitted). Rather, a plaintiff’s claim under the UCL, if based on some public policy, “must be ‘tethered’ to a specific constitutional, statutory, or regulatory provision” to find an objective basis for determining whether the alleged conduct is unfair. Id. at 940 (citing Cel- Tech Commc’ns, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal. 4th 163 (1999).). Plaintiff does not plead any facts establishing unfair conduct in violation of the UCL. Plaintiff does not establish - with factual allegations - that Pictsweet committed a tort, violated a statute, offended an established public policy, acted in an immoral, unethical, oppressive or unscrupulous manner substantially injurious to Case 2:16-cv-08008-JFW-MRW Document 50-1 Filed 01/17/17 Page 19 of 29 Page ID #:459 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 14 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS consumers, or violated some other recognized legal duty. Plaintiff’s revision of the Complaint to include an unsupported allegation that Pictsweet’s “conduct. . . is violative of the public policy against engaging in false and misleading advertising, unfair competition and deceptive conduct towards consumers” (FAC, ¶ 19), coupled merely with vague and conclusory allegations of wrongdoing are insufficient to state a claim against Pictsweet. As explained above, the Complaint does not establish that Pictsweet’s corn package contained nonfunctional slack fill as defined by § 12606.2(c) or 21 C.F.R. § 100.100. Moreover, Plaintiff concedes that he did not expect the package to be completely full, and he knew it was to be used to prepare the food. c. The FAC Does Not Adequately Allege “Fraudulent” Conduct The “fraudulent” prong requires a plaintiff “to show deception to some members of the public, or harm to the public interest. . . .” Watson Labs., Inc. v. Rhone-Poulenc Rorer, Inc., 178 F.Supp.2d 1099, 1121 (C.D. Cal. 2001). There is “an actual reliance requirement” under which a plaintiff must allege that the defendant’s actions were an “immediate cause of the injury-producing conduct.” In re Tobacco II Cases, 46 Cal. 4th 298, 326 (2009). Pursuant to Rule 9(b), when “alleging fraud . . . a party must state with particularity the circumstances constituting fraud . . . .” Fed. R. Civ. P. 9. Pictsweet’s packaging is repeatedly referred to as “false, misleading and deceptive” throughout the FAC. (See FAC, ¶¶ 17, 19, 20, 22, 26.) Thus, Plaintiff’s claim sounds in fraud and must meet the heightened pleading requirements under Rule 9(b). See Kearns, 567 F.3d at 1127. Plaintiff does not plead fraud with the requisite specificity. “[T]o facilitate the false, misleading and deceptive nature of the packaging of the product, defendants intentionally obscured the plaintiffs’ [sic] full view of the actual product, so that plaintiff and other consumers could not see the empty space in the package, Case 2:16-cv-08008-JFW-MRW Document 50-1 Filed 01/17/17 Page 20 of 29 Page ID #:460 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 15 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS which empty space serves no benefit to the product or the ultimate consumer, including plaintiff.” Id. at ¶ 17. At best, Plaintiff pleads the existence of “empty space” in the corn package. Yet the presence of slack fill is not in and of itself unlawful or deceptive, and “empty space” does not automatically constitute nonfunctional slack fill. Under § 12606.2(d), the mere presence of slack fill in a package cannot be used as grounds to assert a violation of the statute - the purpose of which is to avoid misleading packaging - unless the slack fill is in fact nonfunctional. The sole basis for Plaintiff’s lawsuit is his factually unsupported conclusion that the empty space in the package constituted nonfunctional slack fill. Plaintiff must plead more - that is, facts establishing that none of the safe harbors applies so that the alleged empty space meets the definition of nonfunctional slack fill under § 12606.2(c). Plaintiff does not satisfy this requirement. In fact, he admits that he knew the package was to be used to prepare the food. Furthermore, Plaintiff admits that he did not expect the package to be completely full, so he was not deceived. Indeed, it is implausible that Plaintiff could be deceived by any product’s packaging given the multitude of slack fill lawsuits he has filed against numerous food manufacturers. See Request for Judicial Notice (“RJN”) and Exhibits A - L. 2. The FAC Does Not State A Claim Under Section 17500 The UCL prohibits “untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code.” Cal. Bus. & Prof. Code § 17200. Section 17500 forbids the dissemination of advertising which is “untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading.” Cal. Bus. & Prof. Code § 17500; see also Werbel ex rel. v. Pepsico, Inc., No. C 09-04456 SBA, 2010 WL 2673860, at *3 (N.D. Cal. July 2, 2010) (false advertising law “makes it unlawful to make or disseminate any statement concerning property or services that is ‘untrue or misleading’”). False advertising Case 2:16-cv-08008-JFW-MRW Document 50-1 Filed 01/17/17 Page 21 of 29 Page ID #:461 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 16 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS under § 17500 “requires proof that defendant knew its advertising was false.” Churchill Vill., L.L.C. v. Gen. Elec. Co., 169 F. Supp. 2d 1119, 1132 (N.D. Cal. 2000), aff’d sub nom. Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566 (9th Cir. 2004). “A reasonable consumer standard applies to a false advertising claim under the UCL.” Id. at 1131 (citing Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir.1995).). “In order to state a claim under the. . . [False Advertising Law], [the plaintiff] must allege that the [product’s] labels are likely to deceive a reasonable consumer.” Id. at 1103. “‘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.” Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496, 508 (2003). The advertisement must be “such that it is probable that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.” Id. “[T]he standard is not a least sophisticated consumer,” but rather a reasonable consumer. Hill v. Roll Int’l Corp., 195 Cal. App. 4th 1295, 1304 (2011). “[P]rimary evidence in a false advertising case is the advertising itself.” Videtto v. Kellogg USA, No. 2:08CV01324- MCEDAD, 2009 WL 1439086, at *2 (E.D. Cal. May 21, 2009) (alteration in original). The Ninth Circuit applies Rule 9(b) pleading standards to Unfair Competition Law claims and false advertising claims. See Kearns, 567 F.3d at 1125-27 (applying Rule 9(b) to claim for false advertising under § 17200); see also Vess, 317 F.3d at 1102-04 (applying Rule 9(b) to claim for false advertising under § 17500). Plaintiff fails to state a claim for false advertising pursuant to § 17500. Without factual support, the FAC alleges the slack fill complained of constitutes “acts of unfair competition, and misleading advertising” and packaging “advertised in manners that are violative of laws.” FAC, ¶¶ 23-24. These bare allegations are insufficient to satisfy Rule 9(b)’s pleading standards for UCL fraud and false Case 2:16-cv-08008-JFW-MRW Document 50-1 Filed 01/17/17 Page 22 of 29 Page ID #:462 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 17 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS advertising claims. Plaintiff fails to identify any statement contained on the package he claims is false or misleading. He does not (and cannot) allege that the stated quantity of product - 10 ounces - was misstated or deceptive. Unless and until Plaintiff can establish - with facts - that the empty space meets all the requirements of nonfunctional slack fill as defined by § 12606.2(c), his allegation that the contents could not be viewed through the package is immaterial. See FAC, ¶ 6. Section 12606.2 does not require the package to allow the consumer to fully view its contents if one of the enumerated safe harbors applies. Under the statute, functional slack fill is not misleading or impermissible. Only nonfunctional slack fill is barred under the law. Moreover, the lack of transparent packaging does not permit Plaintiff to suspend common sense when making his purchase. See Stuart v. Cadbury Adams USA, LLC, 458 F. App’x 689, 690 (9th Cir. 2011) (affirming district court’s dismissal of false and misleading advertising claims under the UCL because the plaintiff’s claims “def[ied] common sense”); see also Videtto, 2009 WL 1439086, at *4 (granting motion to dismiss false advertising claims where the claims “would require [the] Court to ignore all concepts of personal responsibility and common sense”). In Hawkins v. UGI Corp., No. CV1408461DDPJCX, 2016 WL 2595990, at *1 (C.D. Cal. May 4, 2016), the plaintiffs alleged that the defendant under-filled propane cylinders. Although the propane cylinders accurately identified the net weight of the propane, the plaintiffs alleged they “did not know that they might not be able to extract the entirety of the fifteen pounds of propane purchased” and “consumers have no way to ‘observe’ the amount of propane left in a spent tank.” Id. at *1-*2. The court dismissed the plaintiffs’ claims, holding that the packaging was not fraudulent, deceptive, or misleading because the net weight labels were accurate and “regardless of a consumers’ inability to visually observe the level of product,” the consumer could inspect the product in other ways such as “audibly Case 2:16-cv-08008-JFW-MRW Document 50-1 Filed 01/17/17 Page 23 of 29 Page ID #:463 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 18 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS slosh[] remaining liquid around in the cylinder, or. . . feel[] the heft of a partially full cylinder.” Id. at *3 (emphasis in original). Similarly here, Plaintiff cannot plausibly allege that the packaging is fraudulent, deceptive, or misleading because it accurately discloses the net weight of corn contained in the package and, on its face, the package instructs consumers to cook the corn by placing the “frozen, unopened bag. . . in the microwave” and “[i]n minutes, it expands as the steam begins to gently cook your vegetables.” Doc. 5, Declaration of Kevin Schwab in Support of Removal, Exhibit A. “Plaintiff knew that the product is designed to be put into a microwave, in the package, and cooked for a specific time.” FAC, ¶ 5. “When plaintiff bought the product, he did not expect the package to be ‘crammed full’ with corn.” Id. at ¶ 10. “He understood that a certain amount of slack-fill was needed for several reasons, including possible expansion of the bag during the cooking process.” Id. Plaintiff even alleges that he measured the package. See FAC, ¶ 5 (“as measured by plaintiff” the “[b]ag [is] 7.5” [h]igh”). Plaintiff cannot, and admittedly did not, suspend common sense or ignore other methods of observation such as feeling the contents of the package, or avoid reading the cooking instructions on the package. See Workman v. Plum Inc., 141 F. Supp. 3d 1032, 1035 (N.D. Cal. 2015), appeal dismissed (Mar. 14, 2016) (granting defendant’s motion to dismiss without leave to amend, holding a reasonable consumer would be not be deceived by the labels at issue because “any potential ambiguity could be resolved by the back panel of the products” . . . and “reasonable consumers expect that the ingredient list contains more detailed information about the product that confirms other representations on the packaging.”). By picking up a bag and either feeling its contents or reading the package labeling, a reasonable consumer would understand that the package is not bursting at the seams with frozen corn. Rather, the package includes some empty space to allow the food to be properly cooked inside of the unopened package, using a microwave. Case 2:16-cv-08008-JFW-MRW Document 50-1 Filed 01/17/17 Page 24 of 29 Page ID #:464 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 19 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS Further, as demonstrated by the numerous, nearly identical, and similarly unsupported complaints recently filed by Plaintiff, he cannot plausibly argue that he was misled by the “empty space” in the package. See RJN. Therefore, the Court should dismiss Plaintiff’s claims under the UCL. D. Plaintiff’s Claims Are Preempted Insofar As He Seeks to Impose Greater Requirements Than 21 C.F.R. § 100.100 To the extent that Plaintiff seeks to impose different or additional obligations on Pictsweet based on state law rather than the Federal Food, Drug, and Cosmetic Act (“FDCA”), such claims are preempted under the FDCA’s express preemption provision, 21 U.S.C. § 343-1. See Lam v. Gen. Mills, Inc., 859 F. Supp. 2d 1097, 1102 (N.D. Cal. 2012). 21 U.S.C. § 343-1 “expressly preempts state laws addressing certain subjects that are ‘not identical to’ various standards set forth by the FDA” and “[u]nder FDA regulations, the term ‘not identical to ... means that the State requirement directly or indirectly imposes obligations or contains provisions concerning the composition of labeling’ that are ‘not imposed or contained in the applicable provision[s].’” Lam, 859 F. Supp. 2d at 1102 (citing 21 C.F.R. § 100.1(c)(4)). The California legislature acknowledged FDCA preemption when it enacted its slack fill law. See Cal. Bus. & Prof. Code § 12606.2(f). Section 12606.2(f) states: If the requirements of this section do not impose the same requirements as are imposed by Section 403(d) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 343(d)), or any regulation promulgated pursuant thereto, then this section is not operative to the extent that it is not identical to the federal requirements, and for this purpose those federal requirements are incorporated into this section and shall apply as if they were set forth in this section. Case 2:16-cv-08008-JFW-MRW Document 50-1 Filed 01/17/17 Page 25 of 29 Page ID #:465 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 20 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS “Consumer protection laws, such as the UCL, [and] FAL. . . are. . . preempted if they seek to impose requirements that contravene the requirements set forth by federal law.” Peviani v. Hostess Brands, Inc., 750 F. Supp. 2d 1111, 1118 (C.D. Cal. 2010). Plaintiff seeks to impose restrictions greater than those imposed by 21 C.F.R. § 100.100. Specifically, Plaintiff claims that Pictsweet’s package should provide him a full view of the contents. See FAC, ¶¶ 6, 18. Plaintiff cannot make that contention without first alleging facts establishing that Pictsweet was in fact required by the federal regulation to allow the consumer to fully view the contents of its package. Section 100.100 does not so require if the slack fill is functional. Only if the slack fill is nonfunctional as defined by § 100.100 - which Plaintiff has not factually established for the reasons stated above, is there a requirement for the package to allow the consumer to fully view its contents. By seeking to impose a requirement to fully view the contents of the package without first alleging facts establishing whether the slack fill is nonfunctional, Plaintiff seeks to impose a greater restriction than federal law imposes. Given that § 100.100 specifies when slack fill is permissible, Pictsweet’s compliance with § 100.100 cannot be deemed to be impermissible under the UCL, FAL, or § 12606.2. Such claims would be expressly preempted. See Peviani, 750 F. Supp. 2d at 1118; see also Red v. The Kroger Co., No. CV 10-01025 DMG MANX, 2010 WL 4262037, at *4-*7 (C.D. Cal. Sept. 2, 2010) (finding express preemption of state law claims where the plaintiff sought to enjoin the defendant’s use of terms permitted by the FDA statute). See Ivie v. Kraft Foods Glob., Inc., No. C-12-02554-RMW, 2013 WL 685372, at *8-*11 (N.D. Cal. Feb. 25, 2013) (finding slack fill claims were not preempted by the FDCA “[b]ecause plaintiff does not ask the court to require anything different than the FDCA requirements, specifically 21 C.F.R. § 100.100”) (citing Lam, 859 F.Supp.2d at 1102-03 (finding express preemption where the defendant’s labeling complied with FDA regulations); see also Chacanaca v. Case 2:16-cv-08008-JFW-MRW Document 50-1 Filed 01/17/17 Page 26 of 29 Page ID #:466 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 21 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS Quaker Oats Co., 752 F.Supp.2d 1111, 1118-23 (N.D. Cal. 2010) (finding express preemption where the defendant’s products complied with FDA regulations). Plaintiff’s claim is also prohibited by § 12606.2(f). See Cal. Bus. & Prof. Code § 12606.2(f) (“this section is not operative to the extent that it is not identical to the federal requirements”). V. LEAVE TO AMEND WOULD BE FUTILE Further leave to amend should be denied because it would be futile. A court may dismiss a complaint without leave to amend if amendment would be futile. See Vasquez, 487 F.3d at 1258. “Where a district court dismisses a claim, leave to amend generally should be granted unless amendment would be futile or when it is sought in bad faith.” Werbel ex rel, No. C 09-04456 SBA, 2010 WL 2673860, at *5 (finding leave to amend not warranted on both grounds) (citing Ventress v. Japan Airlines, 603 F.3d 676, 680 (9th Cir.2010).). Given that this is Plaintiff’s second failed attempt to plead facts sufficient to support any viable cause of action against Pictsweet, the Court should dismiss the FAC without further leave to amend. The Court previously held “in the First Amended Complaint, Plaintiff must allege specific factual allegations supporting each and every element of any claim alleged against Defendant, and each purported violation of a statute must be alleged in a separate claim for relief.” (Minute Order, Doc. 83.) Plaintiff did not do so. He scarcely revised the deficient Complaint at all, and the additional allegations are conclusions, not facts. Leave to amend is futile because Plaintiff cannot in good faith allege facts establishing that none of the safe harbors apply. Indeed, Plaintiff concedes that the food preparation safe harbor under § 12606.2(c)(4) applies. See FAC, ¶ 4. Plaintiff makes no attempt to address the remaining five safe harbor provisions. Therefore, further leave to amend should be denied. /// /// Case 2:16-cv-08008-JFW-MRW Document 50-1 Filed 01/17/17 Page 27 of 29 Page ID #:467 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 22 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS VI. CONCLUSION For the foregoing reasons, Pictsweet respectfully requests the Court to grant the Motion to Dismiss with prejudice. Dated: January 17, 2017 ___ BRYAN CAVE LLP Robert E. Boone III Nancy Franco By: /s/ Robert E. Boone III Robert E. Boone III Attorneys for Defendant The Pictsweet Company Case 2:16-cv-08008-JFW-MRW Document 50-1 Filed 01/17/17 Page 28 of 29 Page ID #:468 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 1 PROOF OF SERVICE PROOF OF SERVICE I am employed in the County of Los Angeles, State of California; I am over the age of 18 years and not a party to the within action; my business address is 120 Broadway, Suite 300, Santa Monica, CA 90401-2386. On January 17, 2017, I served the foregoing document(s) described as: DEFENDANT THE PICTSWEET COMPANY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS THE FIRST AMENDED COMPLAINT on the interested party in this action by placing a true and correct copy thereof enclosed in a sealed envelope addressed as follows: David Greenstein 17639 Sherman Way A-35 Van Nuys, CA 91406 talosian70@hotmail.com Plaintiff In Pro Per (BY MAIL) I placed a true copy of the foregoing document in a sealed envelope addressed to each interested party as set forth above. I placed each such envelope, with postage thereon fully prepaid, for collection and mailing at Bryan Cave LLP, Santa Monica, California. I am readily familiar with Bryan Cave LLP’s practice for collection and processing of correspondence for mailing with the United States Postal Service. Under that practice, the correspondence would be deposited in the United States Postal Service on that same day in the ordinary course of business. (BY ELECTRONIC SERVICE) - By electronic filing with the Clerk of the Court using the CM/ECF System, which will send a Notice of Electronic Filing (NEF) to all parties with an e-mail address of record, who have filed a Notice of Consent to Electronic Service in this action FEDERAL: I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on January 17, 2017, at Santa Monica, California /s/ Lorena Lazheztter Lorena Lazheztter Case 2:16-cv-08008-JFW-MRW Document 50-1 Filed 01/17/17 Page 29 of 29 Page ID #:469 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 SM01DOCS\1175975.1 [PROPOSED] ORDER BRYAN CAVE LLP Robert E. Boone III (California Bar No. 132780) reboone@bryancave.com Nancy Franco (California Bar No. 294856) nancy.franco@bryancave.com 120 Broadway, Suite 300 Santa Monica, CA 90401-2386 Telephone: (310) 576-2100 Facsimile: (310) 576-2200 Attorneys for Defendant THE PICTSWEET COMPANY UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DAVID GREENSTEIN, Plaintiff, v. THE PICTSWEET COMPANY; and DOES 1-5 inclusive, Defendants. Case No. 2:16-cv-08008 JFW (MRWx) Assigned To Hon. John F. Walter [PROPOSED] ORDER GRANTING DEFENDANT THE PICTSWEET COMPANY’S MOTION TO DISMISS THE FIRST AMENDED COMPLAINT [Filed Concurrently With Notice of Motion To Dismiss; Motion To Dismiss; and Request For Judicial Notice] Date: February 27, 2017 Time: 1:30 p.m. Courtroom: 7A Action Filed: September 20, 2016 Trial Date: May 9, 2017 Case 2:16-cv-08008-JFW-MRW Document 50-2 Filed 01/17/17 Page 1 of 4 Page ID #:470 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 SM01DOCS\1175975.1 1 [PROPOSED] ORDER The Motion to Dismiss brought by Defendant The Pictsweet Company came for hearing before this Court on February 27, 2017, at 1:30 p.m., the Honorable John F. Walter presiding. Appearances were as stated on the record. Having read and considered the Motion to Dismiss and all pleadings and papers submitted by the parties in support thereof and in opposition thereto, and having heard and considered the argument of counsel, and good cause appearing therefor, IT IS HEREBY ORDERED THAT: 1. The Motion to Dismiss is granted in its entirety without leave to amend on the following grounds: (i) Plaintiff David Greenstein’s First Amended Complaint (“FAC”) fails to allege facts sufficient to state a claim for violation of California Business and Professions Code § 12606.2 or 21 C.F.R. § 100.100; (ii) the FAC fails to allege facts sufficient to state a claim under the California Unfair Competition Law (“UCL”) on the basis of either “unlawful, unfair or fraudulent” business practices (Cal. Bus. & Prof. Code § 17200 et seq.) or “untrue or misleading advertising” (Cal. Bus. & Prof. Code § 17500 et seq.); (iii) the FAC does not satisfy the plausibility standard of Rule 8 of the Federal Rules of Civil Procedure (“FRCP”); (iv) the FAC fails to satisfy the particularity requirement of FRCP 9(b); (v) Plaintiff’s claim is preempted by the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 343-1 and 21 C.F.R. §100.100; and (vi) dismissal should be with prejudice and without leave to amend because amendment would be futile. /// /// /// Case 2:16-cv-08008-JFW-MRW Document 50-2 Filed 01/17/17 Page 2 of 4 Page ID #:471 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 SM01DOCS\1175975.1 2 [PROPOSED] ORDER 2. The FAC is dismissed with prejudice. IT IS SO ORDERED. Dated: ______________ Honorable John F. Walter United States District Judge Case 2:16-cv-08008-JFW-MRW Document 50-2 Filed 01/17/17 Page 3 of 4 Page ID #:472 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 R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U I T E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 - 2 3 8 6 SM01DOCS\1175975.1 1 PROOF OF SERVICE PROOF OF SERVICE I am employed in the County of Los Angeles, State of California; I am over the age of 18 years and not a party to the within action; my business address is 120 Broadway, Suite 300, Santa Monica, CA 90401-2386. On January 17, 2017, I served the foregoing document(s) described as: [PROPOSED] ORDER GRANTING DEFENDANT THE PICTSWEET COMPANY’S MOTION TO DISMISS THE FIRST AMENDED COMPLAINT on the interested party in this action by placing a true and correct copy thereof enclosed in a sealed envelope addressed as follows: David Greenstein 17639 Sherman Way, A-35 Van Nuys, CA 91406 talosian70@hotmail.com Plaintiff In Pro Per (BY MAIL) I placed a true copy of the foregoing document in a sealed envelope addressed to each interested party as set forth above. I placed each such envelope, with postage thereon fully prepaid, for collection and mailing at Bryan Cave LLP, Santa Monica, California. I am readily familiar with Bryan Cave LLP’s practice for collection and processing of correspondence for mailing with the United States Postal Service. Under that practice, the correspondence would be deposited in the United States Postal Service on that same day in the ordinary course of business. (BY ELECTRONIC SERVICE) - By electronic filing with the Clerk of the Court using the CM/ECF System, which will send a Notice of Electronic Filing (NEF) to all parties with an e-mail address of record, who have filed a Notice of Consent to Electronic Service in this action FEDERAL: I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on January 17, 2017, at Santa Monica, California /s/ Lorena Lazheztter Lorena Lazheztter Case 2:16-cv-08008-JFW-MRW Document 50-2 Filed 01/17/17 Page 4 of 4 Page ID #:473