Coleman v. Mondelez Int'l Inc.

• Decision Date: 26 July 2021
• Docket Number: Case No. CV 20-8100 FMO (AFMx)
• Citation: 554 F.Supp.3d 1055
• Parties: Elena COLEMAN, individually and on behalf of all others similarly situated, Plaintiff, v. MONDELEZ INTERNATIONAL INC., Defendant.
• Court: U.S. District Court — Central District of California

554 F.Supp.3d 1055

Elena COLEMAN, individually and on behalf of all others similarly situated, Plaintiff,

v.MONDELEZ INTERNATIONAL INC., Defendant.

Case No. CV 20-8100 FMO (AFMx)

United States District Court, C.D. California.

Signed July 26, 2021

Ryan J. Clarkson, Zachary Chrzan, Clarkson Law Firm, P.C., Malibu, CA, Matthew Thomas Theriault, Clarkson Law Firm PC, Los Angeles, CA, for Plaintiff.

Alexander M. Smith, Kate Spelman, Jenner and Block LLP, Los Angeles, CA, Dean N. Panos, Pro Hac Vice, Jenner and Block LLP, Chicago, IL, for Defendant.

ORDER

Fernando M. Olguin, United States District Judge Having reviewed and considered all the briefing filed with respect to Mondelez Global LLC's¹ ("defendant") Motion to Dismiss [ ] (Dkt. 25, "Motion"), the court finds that oral argument is not necessary to resolve the Motion, see Fed. R. Civ. P. 78(b) ; Local Rule 7-15; Willis v. Pac. Mar. Ass'n, 244 F.3d 675, 684 n. 2 (9th Cir. 2001), and concludes as follows.

PLAINTIFF'S ALLEGATIONS

Plaintiff Elena Coleman ("plaintiff") brings this putative class action alleging that defendant sells its Swedish Fish candy (the "Product") in opaque, oversized boxes that contain 58% slack-fill. (See Dkt. 22, First Amended Class Action Complaint ("FAC") at ¶¶ 1, 23, 25). Plaintiff purchased the Product at a supermarket in Los Angeles in 2019. (See id. at ¶ 12). In making her purchase, plaintiff "relied upon the opaque packaging, including the size of the box ... [which was] designed to encourage consumers like Plaintiff to purchase the Products." (See id. ). According to plaintiff, she "understood the size of the box and product label to indicate the amount of candy contained therein was commensurate with the size of the box," but the box and label were false and misleading given the under-filled Product. (See id. ). Plaintiff alleges that she "would not have purchased the Products had she known that the Products contained slack-fill that serves no functional or lawful purpose."² (Id. at ¶ 29).

Plaintiff alleges that defendant falsely represents the quantity of candy in each of the Products’ opaque boxes through its packaging because the "size of each box leads the reasonable consumer to believe he or she is purchasing a box full of candy product when, in reality, what he or she actually receives is about 58% less than what is represented by the size of the box." (Dkt. 22, FAC at ¶ 23). According to plaintiff, defendant's use of opaque packaging "does not allow for a visual or audial confirmation of the contents of the Products." (Id. at ¶ 25). Also, the other information provided on the front and back labels of the Product does not enable a reasonable consumer to form any meaningful understanding about how to gauge the quantity of the contents as compared to the size of the packaging itself. (See id. at ¶ 26).

Plaintiff asserts claims for violations of California's (1) Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code §§ 17200, et seq. ; (2) False Advertising Law ("FAL"), Cal. Bus. & Prof. Code §§ 17500, et seq. ; and (3) Consumers Legal Remedies Act ("CLRA"), Cal. Civ. Code §§ 1750, et seq. (See Dkt. 22, FAC at ¶¶ 69-138). Plaintiff also asserts common-law claims for (1) unjust enrichment; (2) common-law fraud; (3) intentional misrepresentation; and (4) negligent misrepresentation. (Id. at ¶¶ 139-69).

LEGAL STANDARD

A motion to dismiss for failure to state a claim should be granted if plaintiff fails to proffer "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, 1974, 167 L.Ed.2d 929 (2007) (" Twombly" ); Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (" Iqbal" ); Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011). "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." Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 ; Cook, 637 F.3d at 1004 ; Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010). Although the plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do," Twombly, 550 U.S. at 555, 127 S.Ct. at 1965 ; Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 ; see also Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004) ("[T]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged. Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.") (citations and internal quotation marks omitted), "[s]pecific facts are not necessary; the [complaint] need only give the defendant[s] fair notice of what the ... claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (per curiam ) (citations and internal quotation marks omitted); Twombly, 550 U.S. at 555, 127 S.Ct. at 1964.

In considering whether to dismiss a complaint, the court must accept the allegations of the complaint as true, Erickson, 551 U.S. at 93-94, 127 S.Ct. at 2200 ; Albright v. Oliver, 510 U.S. 266, 267, 114 S.Ct. 807, 810, 127 L.Ed.2d 114 (1994) (plurality opinion), construe the pleading in the light most favorable to the pleading party, and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1849, 23 L.Ed.2d 404 (1969) ; Berg v. Popham, 412 F.3d 1122, 1125 (9th Cir. 2005). Dismissal for failure to state a claim can be warranted based on either a lack of a cognizable legal theory or the absence of factual support for a cognizable legal theory. See Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). A complaint may also be dismissed for failure to state a claim if it discloses some fact or complete defense that will necessarily defeat the claim. Franklin v. Murphy, 745 F.2d 1221, 1228-29 (9th Cir. 1984).

Moreover, where a complaint includes allegations of fraud, Federal Rule of Civil Procedure 9(b) requires that those allegations be pled with particularity. See Fed. R. Civ. P. 9(b) ("In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake."). "To comply with Rule 9(b), allegations of fraud must be specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong." Bly-Magee v. Cal., 236 F.3d 1014, 1019 (9th Cir. 2001) (internal citations and quotation marks omitted). The complaint must set out the "time, place and specific content of the false representations as well as the identities of the parties to the misrepresentations." Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (per curiam ) (internal quotation marks omitted). "Averments of fraud must be accompanied by the who, what, when, where, and how of the misconduct charged." Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (internal citation and quotation marks omitted). "[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." Id. (internal citation and quotation marks omitted). "It is established law, in this circuit and elsewhere, that Rule 9(b) ’s particularity requirement applies to state-law causes of action." Id. at 1103.

DISCUSSION

Defendant seeks to dismiss plaintiff's FAC on the grounds that plaintiff: (1) has not plausibly alleged the slack-fill in defendant's Product is nonfunctional; (2) has not plausibly alleged that the Product's packaging is likely to deceive a reasonable consumer; and (3) cannot maintain claims seeking restitution or equitable relief without establishing that she lacks an adequate remedy at law. (See Dkt. 25, Motion at 8-24).

I. WHETHER PLAINTIFF HAS SUFFICIENTLY ALLEGED NONFUNCTIONAL SLACK-FILL.

Under 21 C.F.R. § 100.100(a), "[s]lack fill is the difference between the actual capacity of a container and the volume of product contained therein." "Nonfunctional slack-fill is the empty space in a package that is filled to less than its capacity for reasons other than: (1) protection of contents; (2) the requirements of the machines used for enclosing the package; (3) unavoidable product settling; (4) the need for the package to perform a specific function; (5) the fact that the product consists of a food packaged in a reusable container where the container is part of the presentation and has value; or (6) inability to increase level of fill or to further reduce the size of the package."³ Escobar v. Just Born Inc., 2017 WL 5125740, *7 (C.D. Cal. 2017) (citing 21 C.F.R. § 100.100(a) ) (enumerating the "safe harbor" provisions) (internal quotation marks omitted). "A package containing nonfunctional slack-fill is misleading if consumers are unable to fully view the contents." Id.

Defendant challenges the sufficiency of plaintiff's allegations as to three of the slack-fill safe harbor categories: (1) protection of the contents; (2) settling; and (3) requirements of the machines.⁴ (See Dkt. 25, Motion at 9-12). While district courts have disagreed whether "a plaintiff must affirmatively plead in [her] complaint that the safe harbor provisions do not apply" when bringing California consumer fraud claims, Matic v. U.S. Nutrition, 2019 WL 3084335, *6 (C.D. Cal. 2019) (collecting cases), the court need not resolve that issue because plaintiff's allegations are adequately pled.

Here, plaintiff's claims are premised on defendant's alleged misrepresentation of the amount of candy through the use of opaque, oversized boxes which "contain nonfunctional,...