Brazil v. Dole Food Co.

• Decision Date: 25 March 2013
• Docket Number: Case No. 12–CV–01831–LHK.
• Citation: Brazil v. Dole Food Co., 935 F.Supp.2d 947 (E.D. Cal. 2013)
• Parties: Chad BRAZIL, an individual, on his own behalf and on behalf of all others similarly situated, Plaintiff, v. DOLE FOOD COMPANY, INC., Dole Packaged Foods, LLC, Defendants.
• Court: U.S. District Court — Eastern District of California

935 F.Supp.2d 947

Chad BRAZIL, an individual, on his own behalf and on behalf of all others similarly situated, Plaintiff,

v.DOLE FOOD COMPANY, INC., Dole Packaged Foods, LLC, Defendants.

Case No. 12–CV–01831–LHK.

United States District Court,

N.D. California,

San Jose Division.

March 25, 2013.

Alex Peet, Dewitt Marshall Lovelace, Sr., Lovelace Law Firm, P.A., Miramar Beach, FL, Ben F. Pierce Gore, Pratt & Associates, San Jose, CA, David Shelton, J. Price Coleman, Coleman Law Firm, Richard Barrett, Law Offices of Richard R. Barrett, PLLC, Oxford, MS, Frank Karam, Ananda N. Chaudhuri, Keith M. Fleischman, Fleischman Law Firm, New York, NY, Brian K. Herrington, David Malcolm McMullan, Jr., John W.(Don) Barrett, Katherine B. Riley, Don Barrett, P.A., Lexington, MS, Carol Nelkin, Jay P. Nelkin, Stuart M. Nelkin, Nelkin, Nelkin & Krock, PC, Houston, TX, Charles F. Barrett, Charles Barrett, P.C., Nashville, TN, for Plaintiff.

William Lewis Stern, Claudia Maria Vetesi, William Francis Tarantino, Morrison & Foerster, San Francisco, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION TO STRIKE

LUCY H. KOH, District Judge.

PlaintiffChad Brazil(“Brazil”) brings this putative class action against Dole Food Company, Inc. and Dole Packaged Foods, LLC(“Dole” or “Defendants”) alleging that Defendants' package labeling is “misbranded” because it is unlawful and misleading.Specifically, Brazil alleges the following: (1) violation of California's Unfair Competition Law (“UCL”), California Business and Professions Code §§ 17200 et seq., for unlawful, unfair, and fraudulent business acts and practices (claims 1, 2, and 3); (2) violation of California's False Advertising Law (“FAL”), California Business and Professions Code §§ 17500 et seq., for untrue, as well as misleading and deceptive, advertising (claims 4 and 5); (3) violation of the Consumers Legal Remedies Act(“CLRA”), California Civil Code §§ 1750 et seq.(claim 6);(4) restitution based on unjust enrichment/quasi-contract (claim 7); (5) violation of the Song–Beverly Consumer Warranty Act, Civil Code §§ 1790 et seq.(claim 8); and (6) violation of the Magnuson–Moss Warranty Act, 15 U.S.C. §§ 2301 et seq.(claim 9).Brazil seeks compensatory and punitive damages, restitution, disgorgement of profits, interest, attorney's fees, costs, and injunctive relief.

The Court held a hearing on this motion on January 24, 2013.Having considered the submissions of the parties, the parties' oral arguments, and the relevant law, the Court hereby GRANTS in part and DENIES in part Defendants' Motion to Dismiss the First Amended Complaint or, in the Alternative, Motion to Strike.

I. BACKGROUNDA.Factual Allegations

Brazil, on behalf of himself and others who are similarly situated, alleges that he purchased Defendants' misbranded food products, including Dole Wildly Nutritious Signature Blends Mixed Berries, Dole Wildly Nutritious Signature Blends Tropical Fruit, Dole Mixed Fruit in 100% Fruit Juice, Dole Blueberries, Dole Fruit Smoothie Shakers, Dole Mixed Fruit in Cherry Gel (Sugar Free), and Dole Tropical Fruit in Light Syrup & Passion Fruit Juice.First Amended Complaint (“FAC”), ECF No. 25, ¶ 186.

Brazil read and relied upon Defendants' package labeling including the “ ‘All Natural,’ fresh, antioxidant, sugar-free and other nutrient content claims,” and based his decision to purchase Defendants' products in substantial part on Defendants' package labeling, as well as Defendants' product packaging and web claims.FAC ¶¶ 187–189.At the point of sale, Brazil alleges that he“did not know, and had no reason to know, that Defendants' products were misbranded.”FAC ¶ 192.However, he claims that he“would not have bought the products had he known the truth about them.”FAC ¶ 192.Brazil spent more than twenty-five dollars in the aggregate on these misbranded products.FAC ¶ 186.

Brazil seeks to bring this putative class action on behalf of a nationwide class consisting of all persons who, within the last four years, purchased Defendants' food products:

(1) labeled or advertised as “All Natural” despite containing artificial or unnatural ingredients, flavorings, coloring, and/or chemical preservatives; (2) labeled or advertised as fresh despite being thermal processed, frozen, or containing sugar and/or having more than 40 calories per serving size; (3) labeled or advertised as sugar free despite containing sugar and/or having more than 40 calories per serving size; (4) labeled or advertised as low calories despite having more than 40 calories per serving size; (5) labeled or advertised with a nutrient content or antioxidant claim for a nutrient lacking a Daily Value or lacking the minimum Daily Value specified for the type of claim made; or (6) labeled or advertised with an unauthorized health claim.

FACat 1–2.

B.Procedural History

Brazil filed a putative class action complaint against Defendants on April 11, 2012.ECF No. 1.Defendants filed a Motion to Dismiss on July 2, 2012.ECF No. 16.Rather than responding to Defendants' Motion to Dismiss, Brazil filed an amended class action complaint on July 23, 2012.ECF No. 25.The Court then denied Defendants' Motion to Dismiss the original complaint as moot.ECF No. 28.

On August 13, 2012, Defendants filed a Motion to Dismiss the First Amended Complaint or, in the Alternative, Motion to Strike for: (1) lack of subject matter jurisdiction as required by Rule 12(b)(1) of the Federal Rules of Civil Procedure;(2) failure to state a claim upon which relief may be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure; and (3) failure to plead claims grounded in fraud with sufficient particularity, as required by Rule 9(b) of the Federal Rules of Civil Procedure.SeeMot. to Dismiss Pl.'s FAC (“Mot.”), ECF No. 29.In addition, Defendants filed a Request for Judicial Notice in Support of the Motion to Dismiss.ECF Nos. 32, 33.Brazil filed an opposition to the motion to dismiss, seePl.'s Opp. to Defs.' Mot. to Dismiss FAC (“Opp'n”), ECF No. 35, to which Defendants filed a reply, seeDefs.' Reply Supp. Mot. to Dismiss Pl.'s FAC (“Reply”), ECF No. 37.Brazil also filed four notices of new case law relevant to Defendants' Motion to Dismiss, seeECF Nos. 42, 49, 50, 51, and Defendants filed four similar notices, ECF No. 41, 45, 57, and 58.

II.LEGAL STANDARDSA.Rule 12(b)(1)

A defendant may move to dismiss an action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).A Rule 12(b)(1)motion to dismiss tests whether a complaint alleges grounds for federal subject matter jurisdiction.A motion to dismiss for lack of subject matter jurisdiction will be granted if the Complaint on its face fails to allege facts sufficient to establish subject matter jurisdiction.SeeSavage v. Glendale Union High Sch.,343 F.3d 1036, 1039 n. 2(9th Cir.2003).In considering a Rule 12(b)(1) motion, the Court“is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction.”McCarthy v. United States,850 F.2d 558, 560(9th Cir.1988).

If the plaintiff lacks standing under Article III of the U.S. Constitution, then the court lacks subject matter jurisdiction, and the case must be dismissed.SeeSteel Co. v. Citizens for a Better Env't,523 U.S. 83, 101–02, 118 S.Ct. 1003, 140 L.Ed.2d 210(1998).Once a party has moved to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the opposing party bears the burden of establishing the court's jurisdiction.SeeChandler v. State Farm Mut. Auto. Ins. Co.,598 F.3d 1115, 1122(9th Cir.2010).

B.Rule 12(b)(6)

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss an action for failure to allege “enough facts to state a claim to relief that is plausible on its face.”Bell Atl. Corp. v. Twombly,550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929(2007).“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”Ashcroft v. Iqbal,556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868(2009)(internal citation omitted).For purposes of ruling on a Rule 12(b)(6) motion, the court“accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving party.”Manzarek v. St. Paul Fire & Marine Ins. Co.,519 F.3d 1025, 1031(9th Cir.2008).

However, the court need not accept as true allegations contradicted by judicially noticeable facts, Shwarz v. United States,234 F.3d 428, 435(9th Cir.2000), and the “[C]ourt may look beyond the plaintiff's complaint to matters of public record” without converting the Rule 12(b)(6) motion into one for summary judgment, Shaw v. Hahn,56 F.3d 1128, 1129 n. 1(9th Cir.1995).Nor is the court required to “ ‘assume the truth of legal conclusions merely because they are cast in the form of factual allegations.’ ”Fayer v. Vaughn,649 F.3d 1061, 1064(9th Cir.2011)(per curiam)(quotingW. Min. Council v. Watt,643 F.2d 618, 624(9th Cir.1981)).Mere “conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss.”Adams v. Johnson,355 F.3d 1179, 1183(9th Cir.2004);accordIqbal,556 U.S. at 678, 129 S.Ct. 1937.Furthermore, “a plaintiff may plead [him]self out of court” if he“plead[s] facts which establish that he cannot prevail on his ... claim.”Weisbuch v. Cnty. of L.A.,119 F.3d 778, 783 n. 1(9th Cir.1997)(internal quotation marks and citation omitted).

C.Rule 9(b)

Claims sounding in fraud or mistake are subject to...