Perea v. Walgreen Co., Case No. EDCV 13–00119 DOC (ANx).

• Decision Date: 11 April 2013
• Docket Number: Case No. EDCV 13–00119 DOC (ANx).
• Parties: Terri PEREA v. WALGREEN COMPANY, et al.
• Court: U.S. District Court — Central District of California

939 F.Supp.2d 1026

Terri PEREA

v.WALGREEN COMPANY, et al.

Case No. EDCV 13–00119 DOC (ANx).

United States District Court,

C.D. California.

April 11, 2013.

Preempted

West's Ann.Cal.Food & Agric.Code § 29413(e)Christopher T. Williams, Altus Trial Law, Beverly Hills, CA, for Plaintiff.

Jeffrey M. Thompson, Meagher & Geer, Minneapolis, MN, Robert M. Bodzin, Burnham Brown PLC, Oakland, CA, for Defendant.

PROCEEDINGS (IN CHAMBERS): ORDER GRANTING MOTION TO DISMISS

DAVID O. CARTER, District Judge.

Julie Barrera, Courtroom Clerk.

Before the Court is Walgreen Company's (“Walgreens's” or “Defendant's”) Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (Dkt. 5). The Court finds this matter appropriate for decision without oral argument. Fed.R.Civ.P. 78; Local Rule 7–15. After considering the moving, opposing, and replying papers the Court DENIES Defendant's Motion to Dismiss under Rule 12(b)(1), but GRANTS Defendant's Motion to Dismiss under 12(b)(6).

I. Background

Judge Enslen of the U.S. District Court, Western District of Michigan, aptly summarized the heart and soul of this case, and similar cases concerning the regulation of food, when he said: “I believe that a consumer has the right to be informed of the nature and substance of the food he ingests. Nutrition, as well as the pleasure of the palate, affects the quality of life.” American Meat Institute v. Ball, 550 F.Supp. 285, 288 (W.D.Mich.1982).

The gravamen of Terri Perea's Complaint is that Walgreens violated state law by selling a product labeled as “Nice 100% Pure Honey” from which all the naturally occurring pollen had been avoidably removed. The Complaint alleges the following facts.

a. Terri Perea's Walgreens Purchase

On July 17, 2012, Ms. Perea (“Plaintiff”) purchased a container of Walgreens's private-label brand of “Nice 100% Pure Honey” (the “Nice Product”). Notice of Removal (Dkt. 1), Ex. A [hereinafter “Compl.”] ¶ 36. When Plaintiff purchased the Nice Product, she believed that it had not been altered in any way to remove the pollen. Id. However, Plaintiff subsequently had the Nice Product tested by a melissopalynologist, Professor Vaughn Bryant of Texas A & M University, who concluded that the Nice Product contained no pollen. Id. ¶ 37.

b. The Value of Pollen

Honey must be filtered to remove debris such as dirt and bee parts in order to be safe for human consumption. Id. ¶ 22. Some producers also filter most or all of the pollen from honey because it helps to slow down or prevent crystallization of the honey. Id. ¶ 28. Crystallization, which is the precipitation of sugar from the supersaturated honey solution, changes the appearance of honey. Id. There are three levels of filtration: (1) “straining” honey will remove foreign matter from honey but not all of the pollen; (2) “micro-filtration” removes almost all particles from honey but usually leaves some pollen, depending on the size of the pollen grains and the type of micro-filtration; and (3) “ultra-filtration” removes all pollen grains from the honey. Id. ¶¶ 24–26.

Ingesting the pollen naturally occurring in honey is believed to provide health benefits. Pollen contains protein, vitamins, minerals, beneficial fatty acids, carotenoids, and bioflavonoids. Id. ¶ 30. Many consumers believe that pollen helps lower cholesterol and may prevent other ailments. Id. In addition, the pollen in any given sample of honey can be used to identify the geographical origin of the honey. Knowing where their honey comes from is important to consumers because they can avoid purchasing honey from places like China. Id. ¶ 3. Chinese honey has been known to contain chemicals, metal, and antibiotics; therefore, “the ability to determine the geographic origin of honey has value to the California consumer if for no other reason than to ensure that the honey purchased is not a product of China.” Id. Because Defendant's Nice Product is completely devoid of pollen, it is impossible to be certain that the product did not originate from China. Id. ¶ 33.

c. The Present Lawsuit

On December 19, 2012, Plaintiff filed her Summons and Class Action Complaint against Walgreens in the Superior Court of California, San Bernardino County, Case No. CIVDS 1213101. Notice of Removal ¶ 1. Plaintiff alleges that the Nice Product is unlawfully being sold in California because, pursuant to section 29413(e) of the California Food and Agriculture Code (“section 29413(e)”), no product may be sold as “honey” that has had its natural pollen removed where such removal is avoidable.¹ Compl. ¶ 19. By selling the Nice Product as “honey” in contravention of section 29413(e), Defendant also has violated and continues to violate section 29671 ² of the California Food and Agriculture Code (“ section 29671”) as well as California's Unfair Competition Law (the “UCL”). Id. ¶¶ 20, 58.

On January 18, 2013, Walgreens removed the Class Action Complaint to the U.S. District Court for the Central District of California, Eastern Division. Notice of Removal at 1. On January 28, 2013, the case was reassigned to this Court pursuant to General Order 08–05, because a substantially similar case was at that time pending before this Court.³ Order Re. Transfer Pursuant to General Order 08–05—Related Case (Dkt. 12).

d. Defendant's Motion to Dismiss

On January 25, 2013, Defendant filed its Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (Dkt. 5) on the following grounds: Plaintiff's claims are preempted by federal law, the California Honey Statute impermissibly burdens interstate commerce, Plaintiff lacks standing, and Plaintiff has failed to state a claim under the UCL.

II. Legal Standards for Dismissal

Under Federal Rule of Civil Procedure 12(b)(1), a complaint must be dismissed if the court lacks subject matter jurisdiction to adjudicate the claims. Once subject matter jurisdiction is challenged, the burden of proof is placed on the party asserting that jurisdiction exists. Scott v. Breeland, 792 F.2d 925, 927 (9th Cir.1986) (holding that “the party seeking to invoke the court's jurisdiction bears the burden of establishing that jurisdiction exists”). Accordingly, the court will presume lack of subject matter jurisdiction until the plaintiff proves otherwise in response to the motion to dismiss. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994).

Under Federal Rule of Civil Procedure 12(b)(6), a complaint must be dismissed when a plaintiff's allegations fail to set forth a set of facts which, if true, would entitle the complainant to relief. Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (holding that a claim must be facially plausible in order to survive a motion to dismiss); accord Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The pleadings must raise the right to relief beyond the speculative level; a 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. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). On a motion to dismiss, the court accepts as true a plaintiff's well-pled factual allegations and construes all factual inferences in the light most favorable to the plaintiff. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir.2008). The court is not required to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

In evaluating a Rule 12(b)(6) motion, review is ordinarily limited to the contents of the complaint and material properly submitted with the complaint. Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir.1994); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n. 19 (9th Cir.1990). Under the incorporation by reference doctrine, the court may also consider documents “whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading.” Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994), overruled on other grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1121 (9th Cir.2002).

A motion to dismiss under Rule 12(b)(6) cannot be granted based upon an affirmative defense unless that “defense raises no disputed issues of fact.” Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir.1984). For example, a motion to dismiss may be granted based on an affirmative defense where the allegations in a complaint are contradicted by matters properly subject to judicial notice. Daniels–Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir.2010). In addition, a motion to dismiss may be granted based upon an affirmative defense where the complaint's allegations, with all inferences drawn in the plaintiff's favor, nonetheless show that the affirmative defense “is apparent on the face of the complaint.” See Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir.2010).

Additionally, Federal Rule of Evidence 201 allows the court to take judicial notice of certain items without converting the motion to dismiss into one for summary judgment. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir.1994). The court may take judicial notice of facts “not subject to reasonable dispute” because they are either: “(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201; see also Lee v. City of L.A., 250 F.3d 668, 689 (9th Cir.2001) (noting that the court may take judicial notice of undisputed “matters of public record”), overruled on other grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1125–26 (9th Cir.2002). The court may disregard allegations in a complaint that are contradicted by...