Koehler v. Litehouse, Inc.
| Decision Date | 13 December 2012 |
| Docket Number | No. CV 12-04055 SI,CV 12-04055 SI |
| Parties | GARRETT KOEHLER, as an individual and on behalf of all others similarly situated, Plaintiff, v. LITEHOUSE, INC., Defendant. |
| Court | U.S. District Court — Northern District of California |
Currently before the Court are defendant's motion to dismiss plaintiff's first amended complaint and defendant's motion to strike plaintiff's expert report. Pursuant to Civil Local Rule 7-1(b), the Court finds this matter suitable for disposition without oral argument and therefore VACATES the hearing currently scheduled for December 14, 2012. Having carefully considered the papers submitted, the Court GRANTS IN PART and DENIES IN PART defendant's motion to dismiss and GRANTS defendant's motion to strike, for the reasons set forth below.
On August 21, 2012, plaintiff Koehler filed a complaint against defendant Litehouse, Inc. After Litehouse filed a motion to dismiss the complaint, Koehler filed his first amended complaint. Subsequently, Litehouse withdrew its first motion to dismiss, and filed a new motion to dismiss the first amended complaint.
Koehler alleges that Litehouse manufactures and sells a salad dressing known as "Bleu Cheese Yogurt Dressing with Probiotics" (the "Product"). FAC ¶ 4. Koehler purchased the Product from aSafeway supermarket in San Francisco, California for approximately $3.00. FAC ¶ 11. The front label of the Product claims that it "May boost immunity" and the rear label of the product claims that it "May enhance the body's immune system" (collectively the "Statements"). Id. Koehler alleges that he materially relied on these statements when he purchased the product. FAC ¶¶ 12-13.
Koehler argues that the Statements are "false, misleading, and likely to deceive a reasonable consumer." FAC ¶ 26. Koehler has brought a putative class action against Litehouse, asserting claims under: (1) California's Unfair Competition Law ("UCL"), Bus. & Prof. Code §§ 17200 et seq.; (2) California's False Advertising Law ("FAL"), Bus. & Prof. Code §§ 17500 et seq.; (3) California's Consumer Legal Remedies Act ("CLRA"), Cal. Civ. Code §§ 1750 et seq.; (4) and for breach of express warranty and (5) negligent misrepresentation.
Pursuant to Federal Rule of Civil Procedure 12(f), the court may strike from a pleading any "redundant, immaterial, impertinent, or scandalous matter." "[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial . . . ." Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983).
Under Federal Rule of Civil Procedure 10(c), "[a] copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes." A "written instrument" under Rule 10(c) "'is a document evidencing legal rights or duties or giving formal expression to a legal act or agreement, such as a deed, will, bond, lease, insurance policy or security agreement.'" DeMarco v. DepoTech Corp., 149 F. Supp. 2d 1212, 1220 (S.D. Cal. 2001) (quoting Murphy v. Cadillac Rubber & Plastics, Inc., 946 F. Supp. 1108, 1115 (W.D.N.Y. 1996) (citing BLACK'S LAW DICTIONARY 801, 1612 (6th ed.1990))). In contrast, "[a]ffidavits and declarations . . . are not allowed as pleading exhibits unless they form the basis of the complaint." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); see also id. ().
Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must 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 (2007). This "facial plausibility " standard requires the plaintiff to allege facts that add up to "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although courts do not require "heightened fact pleading of specifics," Twombly, 550 U.S. at 544, a plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do," id. at 555. The plaintiff must allege facts sufficient to "raise a right to relief above the speculative level." Id.
In deciding whether the plaintiff has stated a claim, the Court must assume that the plaintiff's allegations are true and must draw all reasonable inferences in his or her favor. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." St. Clare v. Gilead Scis., Inc., 536 F.3d 1049, 1055 (9th Cir. 2008). Moreover, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. In considering a motion to dismiss, the court may take judicial notice of matters of public record outside the pleadings. See MGIC Indemn. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986).
If the Court dismisses a complaint, it must decide whether to grant leave to amend. The Ninth Circuit has "repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (citations and internal quotation marks omitted). Dismissal of a pro se complaint without leave to amend is proper only if it is "absolutely clear that the deficiencies of the complaint could not be cured by amendment." Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (quoting Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980)).
In Koehler's initial complaint, he attached the affidavit of his retained expert Dr. Kent Carson ("Expert Report"). Compl., Ex. 1. When he amended his complaint, he declined to attach the Expert Report, but quoted from it in the body of the complaint. FAC ¶¶ 31, 32. Litehouse argues that the Expert Report and all references to the Expert Report should be stricken from the complaint because it is not a "written instrument" as required by Federal Rule of Civil Procedure 10(c). Def.'s Mot. to Strike 3.
Koehler argues that Litehouse's argument that the Expert Report should be stricken from the amended complaint is moot because the Expert Report is no longer attached to the amended complaint. The Court agrees. Koehler further argues that Rule 10(c) only governs attached exhibits, and therefore, the references should not be stricken. The Court disagrees.
The Ninth Circuit has explained that under Rule 10(c), "[e]ven if a document is not attached to a complaint, it may be incorporated by reference into a complaint if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff's claim." Ritchie, 342 F.3d at 908. In De Marco, the court declined to strike the expert's "nonconclusory assertions," even through it struck the attached exhibit. 149 F. Supp. 2d at 1222. Here, the Court finds that the quotations are conclusory assertions: "Dr. Carson opined . . . ," FAC ¶ 31, and "Dr. Carson also stated . . . I conclude . . . ," FAC ¶ 32. The quotes from the Expert Report relay Dr. Carson's expert opinion, but makes no statements of fact.
Therefore, the Court GRANTS defendant's motion to strike the references to Dr. Carson's Expert Report.
Litehouse argues that all of Koehler's claims fail as a matter of law because of the qualifier "may" that precedes the Statements. See Def.'s Mot. to Dismiss 2-3. It argues that Koehler's claims are based on the incorrect premise that the Statements claim that the Product "would" enhance theimmune system, when instead it only claims it "may" enhance the immune system. See id; FAC ¶¶ 11, 38.
To state a valid false advertising claim under the UCL, FAL, and CLRA, the plaintiff must show that the "reasonable consumer" is "likely to be deceived" by the advertisement. Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir. 1995) (quotations and citations omitted). "'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). To determine whether a reasonable consumer is likely to be deceived, the statement must be read in context of the entire advertisement. Freeman, 68 F.3d at 290 ().
Courts have held that qualifying statements are important determine a consumer's understanding. In Maloney v. Verizon Internet Services, Inc., plaintiff argued that Verizon's advertisement of an internet service with speeds "up to 3 Mbps" was misleading because Verizon knew that the plaintiff would not be able to reach 3 Mbps. ED CV 08-1885, 2009 WL 8129871, at *1 (C.D. Cal. Oct. 4, 2009) aff'd, 413 F. App'x 997 (9th Cir. 2011). The district court dismissed the claims because it found that the advertisement "was not likely to deceive a reasonable customer [because the] 'up to' language should have put any reasonable customer on notice that his or her own speed may not reach 3 Mbps." Id. at *5.
In the instant case, the qualifying term "may" in the Statements functions in a similar manner to the qualifier "up to." "May" in...
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