In re Conagra Foods, Inc., CV 11–05379 MMM (AGRx).

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
• Writing for the Court: MARGARET M. MORROW
• Citation: 90 F.Supp.3d 919
• Parties: In re CONAGRA FOODS, INC.
• Docket Number: No. CV 11–05379 MMM (AGRx).,CV 11–05379 MMM (AGRx).
• Decision Date: 23 February 2015

90 F.Supp.3d 919

In re CONAGRA FOODS, INC.

No. CV 11–05379 MMM (AGRx).

United States District Court,
C.D. California.

Signed Feb. 23, 2015.

[90 F.Supp.3d 937]

Ariana J. Tadler, Henry Kelston, Andrei V. Rado, Jessica J. Sleater, Milberg LLP, Kim E. Richman, Reese Richman LLP, Christopher A. Seeger, Seeger Weiss LLP, Antonio Vozzolo, Faruqi and Faruqi LLP, Scott A. Bursor, Bursor and Fisher PA, New York, NY, David E. Azar, Milberg LLP, Los Angeles, CA, Adam J. Levitt, Grant and Eisenhofer PA, Chicago, IL, Betsy C. Manifold, Edmund S. Aronowitz, Francis M. Gregorek, Patrick H. Moran, Rachele R. Rickert, Wolf Haldenstein Adler Freeman & Herz LLP, San Diego, CA, Michael R. Reese, Reese Richman LLP, Mission Viejo, CA, William Charles Wright, Wright Law Office, West Palm Beach, FL, Jonathan Shub, Scott Alan George Seeger Weiss LLP, Philadelphia, PA, David E. Bower, Faruqi and Faruqi LLP, Los Angeles, CA, Donald A. Ecklund, James E. Cecchi, Lindsey H. Taylor, Carella Byrne Checchi Olstein Brody and Agnello PC, Roseland, NJ, Lawrence Timothy Fisher, Sarah N. Westcot, Bursor and Fisher PA, Walnut Creek, CA, for Plaintiff.

Kenneth Abrams, Richard T. Taylor, McGuireWoods LLP, Richmond, VA, A. Brooks Gresham, Laura E. Coombe, McGuireWoods LLP, Los Angeles, CA, Andrew G. Phillips, Angela M. Spivey, McGuireWoods LLP, Atlanta, GA, Joan S. Dinsmore, McGuireWoods LLP, Raleigh, NC, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' AMENDED MOTION FOR CLASS CERTIFICATION
MARGARET M. MORROW, District Judge.

On June 28, 2011, Robert Briseno filed a complaint against ConAgra; ¹ between October

[90 F.Supp.3d 938]

and December 2011, the court consolidated several cases filed against ConAgra under the caption above.²

On January 12, 2012, plaintiffs filed a First Consolidated Amended Complaint. ³ On February 24, 2012, ConAgra filed a motion to dismiss,⁴ which the court granted in part and denied in part on November 15, 2012. ⁵ On December 19, 2012, plaintiffs filed a Second Consolidated Amended Complaint.⁶ On February 20, 2014, they filed a motion seeking an order permitting the withdrawal of several named plaintiffs and the dismissal of their claims; ⁷ the court granted this motion on May 5, 2014. ⁸ The same day, plaintiffs filed a motion for class certification. ⁹ On June 2, 2014, ConAgra filed a motion to strike the declarations of plaintiffs' experts, Colin B. Weir and Charles M. Benbrook.¹⁰ The next day, plaintiffs filed a motion seeking an order permitting the withdrawal of named plaintiffs Bonnie McDonald and Phyllis Scarpelli and the dismissal of their claims.¹¹ The court subsequently granted plaintiffs' motion and permitted McDonald and Scarpelli to withdraw as named plaintiffs on July 31, 2014.¹² On August 1,

[90 F.Supp.3d 939]

2014, the court denied plaintiffs' motion for class certification, but granted them leave to file an amended motion for class certification.¹³

Plaintiffs did so on September 8, 2014.¹⁴ ConAgra opposed the amended motion on October 6, 2014.¹⁵ The same day, it filed a motion to strike various declarations filed in support of plaintiffs' amended motion.¹⁶ Plaintiffs oppose ConAgra's motion to strike.¹⁷

I. BACKGROUND A. Factual Background

Plaintiffs are consumers residing in eleven different states who purchased Wesson Oils between January 2007 and their entry into this case. They allege that from at least June 27, 2007 to the present, ConAgra Foods, Inc. (“ConAgra”) deceptively and misleadingly marketed its Wesson brand cooking oils, made from genetically-modified organisms (“GMO”), as “100% Natural.” Throughout the proposed class period, every bottle of Wesson Oil carried a front label stating that the product was “100% Natural.” ¹⁸

Plaintiffs seek to certify eleven statewide classes as follows:

“All persons who reside in the States of California, Colorado, Florida, Illinois, Indiana, Nebraska, New York, Ohio, Oregon, South Dakota, or Texas who have purchased Wesson Oils within the applicable statute of limitations periods established by the laws of their state of residence (the ‘Class Period’) through the final disposition of this and any and all related actions.” ¹⁹

Plaintiffs allege claims for violation of state consumer protection laws, breach of express warranty, breach of the implied warranty of merchantability, and unjust enrichment. Specifically, they plead the following claims:

• California: (1) California Consumer Legal Remedies Act, California Civil Code §§ 1750 et seq. and California Unfair Competition Law, California Business & Professions Code §§ 17200 et seq. and §§ 17500 et seq.; (2) California Commercial Code § 2313; California Commercial Code § 2314.

• Colorado: (1) Colorado Consumer Protection Act, Colorado Revised Statutes §§ 6–1–101 et seq.; (2) Colorado Revised Statutes § 4–2–313; (3)

[90 F.Supp.3d 940]

Colorado Revised Statutes § 4–2–314; (4) Unjust Enrichment.

• Florida: (1) Florida Deceptive and Unfair Trade Practices Act, Florida Statutes Annotated §§ 501.201 et seq.; (2) Unjust Enrichment.

• Illinois: (1) Illinois Consumer Fraud and Deceptive Business Practices Act, 815 Illinois Compiled States §§ 505/1 et seq.; (2) Unjust Enrichment.

• Indiana: (1) Indiana Code § 26–1–2–313; (2) Indiana Code § 26–1–2–314; (3) Unjust Enrichment.

• Nebraska: (1) Nebraska Consumer Protection Act, Nebraska Revised Statutes §§ 59–1601 et seq.; (2) Nebraska Revised Statutes § 2–313; (3) Nebraska Revised Statutes § 2–314; (4) Unjust Enrichment.

• New York: (1) New York Consumer Protection Act, New York General Business Law §§ 349 et seq.; (2) N.Y. U.C.C. Law § 2–313; (3) Unjust Enrichment.

• Ohio: (1) Ohio Consumer Sales Practices Act, Ohio Revised Code §§ 1345.01 et seq.; (2) Unjust Enrichment.

• Oregon: (1) Oregon Unfair Trade Practices Act, Oregon Revised Statutes §§ 646.605 et seq.; (2) Oregon Revised Statutes § 72–3130; (3) Unjust Enrichment.

• South Dakota: (1) South Dakota Deceptive Trade Practices and Consumer Protection Law, South Dakota Codified Laws §§ 37–24–1 et seq.; (2) S.D. Cod. Laws § 57A–2–313; (3) South Dakota Codified Laws § 57A–2–314; (4) Unjust Enrichment.

• Texas: (1) Texas Deceptive Trade Practices–Consumer Protection Act, Texas Business & Commerce Code §§ 17.41 et seq.; (2) Unjust Enrichment. ²⁰

B. ConAgra's Request for Judicial Notice

ConAgra requests that the court take judicial notice of ten documents and various attached exhibits, each of which has previously been filed in this action, in support of its opposition to plaintiffs' amended motion for class certification.²¹ Specifically, ConAgra asks that the court take judicial notice of: (1) the Declaration of Colin B. Weir in Support of Plaintiffs' Motion for Class Certification and for Appointment of Counsel, which plaintiffs filed on May 5, 2014 as Docket No. 243; ²² (2) the Declaration of Raquelle Hunter in Opposition to Plaintiffs' Motion for Class Certification and Appointment of Counsel, which ConAgra filed on June 2, 2014 as Docket No. 266; ²³ (3) the Declaration of Dominique M. Hanssens, Ph.D., in Opposition to Plaintiffs' Motion for Class Certification and Appointment of Counsel, with attached appendices and exhibits, which ConAgra filed on June 2, 2014 as Docket No. 267; ²⁴

[90 F.Supp.3d 941]

(4) the Declaration of Keith R. Ugone in Opposition to Plaintiffs' Motion for Class Certification, with attached appendices and exhibits, which ConAgra filed on June 2, 2014 as Docket No. 268; ²⁵ (5) the Declaration of Robert B. Hawk in Opposition to Plaintiffs' Motion for Class Certification, with attached exhibits, which ConAgra filed on June 2, 2014 as Docket No. 269; ²⁶ (6) the Declaration of Stacy R. Hovan in Opposition to Plaintiffs' Motion for Class Certification, with attached exhibits, which ConAgra filed on June 2, 2014 as Docket No. 270; ²⁷ (7) the Declaration of Marcella Thompson in Opposition to Plaintiffs' Motion for Class Certification, which ConAgra filed on June 2, 2014 as Docket No. 271; ²⁸ (8) the Rebuttal Declaration of Colin B. Weir in Support of Plaintiffs' Reply Memorandum of Points and Authorities in Further Support of Plaintiffs' Motion for Class Certification, which plaintiffs filed on June 30, 2014 as Docket No. 285; ²⁹ (9) the Declaration of Dr. Elizabeth Howlett, which plaintiffs filed on June 30, 2014 as Docket No. 288; ³⁰ and (10) the court's Order Denying Plaintiffs' Motion for Class Certification, which was entered on August 1, 2014 as Docket No. 350.³¹

It is well established that a court can take judicial notice of its own files and records under Rule 201 of the Federal Rules of Evidence. “Judicial notice is properly taken of public records, such as transcripts, orders, and decisions made by ... courts or administrative agencies.” See Wayne v. Leal, No. 07 CV 1605 JM (BLM), 2009 WL 2406299, *4 (S.D.Cal. Aug. 4, 2009); Molus v. Swan, No. 05cv452–MMA (WMc), 2009 WL 160937, *2 (S.D.Cal. Jan. 22, 2009) (“Courts also may take judicial notice of their own records,” citing United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir.1986)). The court may thus taken judicial notice of the filings and order referenced in ConAgra's request for judicial notice. See NovelPoster v. Javitch Canfield Group, No. 13–CV–05186–WHO, 2014 WL 5594969, *4, n. 7 (N.D.Cal. Nov. 3, 2014) (“In conjunction with the motion, defendants requested judicial notice of various documents, including NovelPoster's ex parte application for a temporary restraining order in this case and this Court's subsequent order.... Defendants' request for judicial notice of the TRO application and order is GRANTED”); see also In re Linda Vista Cinemas, L.L.C., 442 B.R. 724, 740 n. 7 (Bankr.D.Ariz.2010) (stating that “[t]he court takes judicial notice of its own records,” specifically, a declaration attached to the opposition to a preliminary injunction motion, citing United States v. Wilson, 631 F.2d 118, 119 (9th Cir.1980)). Accordingly, the court grants ConAgra's request for judicial notice, “although [ConAgra] [is]

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