Peviani v. Hostess Brands Inc.
| Decision Date | 03 November 2010 |
| Docket Number | No. CV 10–2303 CBM (VBKx).,CV 10–2303 CBM (VBKx). |
| Citation | 750 F.Supp.2d 1111 |
| Parties | Eileen PEVIANI et al., Plaintiffs,v.HOSTESS BRANDS, INC. et al., Defendants. |
| Court | U.S. District Court — Central District of California |
OPINION TEXT STARTS HERE
Elizabeth Lee Beck, Jared H. Beck, Beck & Lee Business Trial Lawyers, Miami, FL, Gregory S. Weston, John Joseph Fitzgerald, IV, The Weston Firm, San Diego, CA, for Plaintiffs.Frank C. Rothrock, Shook Hardy & Bacon LLP, Irvine, CA, for Defendants.
(1) GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT; AND
The matters before the Court are (1) Defendants Hostess Brands, Inc.'s, Interstate Brands Corporation's, and IBC Sales Corporation's (collectively, “Defendants”) “Motion to Dismiss Plaintiffs' First Amended Complaint for Lack of Personal Jurisdiction and Failure to State a Claim for Relief” (“Motion to Dismiss”); and (2) “Request for Judicial Notice in Support of Defendants' Notice of Motion and Motion to Dismiss First Amended Complaint and Each Claim Thereof” (“Request for Judicial Notice”). [Doc. Nos. 19, 21].
The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331, 1332, 1367 and 15 U.S.C. § 1121.
In this putative class action, Plaintiff Victor Guttmann (“Plaintiff”) alleges that Defendants use misleading, deceptive, and fraudulent misstatements and omissions to market six (6) varieties of baked-goods products under the label “Hostess 100 Calorie Packs.” 1 (First Amended Complaint ( ) at ¶¶ 4–7, 61.) In particular, Plaintiff alleges that Defendants market Hostess 100 Calorie Packs as containing “0 Grams of Trans Fat,” even though such products contain partially hydrogenated oils (“PVHO”). ( Id. at ¶¶ 5, 61.)
Plaintiff alleges that artificial trans fat is manufactured through a process of partial hydrogenation that results in the production of PVHO. ( Id. at ¶¶ 24, 25.) Although PVHO was once touted as a “wonder product,” he alleges that it is now known to have a detrimental impact on human health and has been attributed to numerous health conditions, including heart disease, diabetes, cancer, obesity, liver dysfunction, Alzheimer's disease, and female infertility. ( Id. at ¶¶ 27, 30, 43, 46; Plaintiff's Opposition to Defendant Hostess Brands, Inc.'s Motion to Dismiss (“Pl.'s Opp'n”) at 1:9–12.) Plaintiff further alleges that Hostess 100 Calorie Packs therefore contain “dangerous levels of artificial trans fat” because there is no safe level of artificial trans fat intake. (First Am. Compl. at ¶¶ 5, 53.)
Plaintiff alleges that he purchased Hostess 100 Calorie Packs at grocery and convenience stores in California beginning in approximately January 2007. ( Id. at ¶¶ 15–16.) He further alleges that he read and relied on Defendants' representation that Hostess 100 Calorie Packs contained “0 Grams of Trans Fat” in deciding to purchase these products. ( Id. at ¶ 20.) Plaintiff also alleges that, absent Defendants' misstatements and omissions, he and other class members would not have purchased Hostess 100 Calorie Packs. ( Id. at ¶ 7.)
On March 30, 2010, Plaintiff and Eileen Peviani filed a Complaint against Hostess Brands, Inc. (“Hostess”). [Doc. No. 1.] On May 6, 2010, Hostess filed a Motion to Dismiss the Complaint, [Doc. No. 9], and a Request for Judicial Notice. [Doc. No. 12.] Plaintiff and Eileen Peviani thereafter filed a First Amended Complaint on May 26, 2010, [Doc. No. 16], alleging the following five causes of action against Hostess, Interstate Brands Corporation, and IBC Sales Corporation: (1) false advertising in violation of the Lanham Act; (2) violations of the California Unfair Competition Law (“UCL”); (3) violations of the California False Advertising Law (“FAL”); (4) violations of the California Consumer Legal Remedies Act (“CLRA”); and (5) violations of the Missouri Merchandise Practices Act (“MMPA”). (First Am. Compl. at ¶¶ 73–109.)
Plaintiff brings this action on behalf of himself and two classes: (1) for restitution and damages on behalf of all persons “who purchased, on or after January 1, 2007, one or more of the Hostess [100 Calorie Packs] in the United States for their own use rather than resale or distribution”; and (2) for injunctive relief on behalf of all persons “who commonly purchase or are in the market for one or more Hostess [100 Calorie Packs] in the United States for their own use rather than resale or distribution.” ( Id. at ¶ 62.)
On June 23, 2010, Defendants filed the instant Motion to Dismiss and a Request for Judicial Notice. [Doc. Nos. 19, 21.] An opposition and reply to the Motion to Dismiss were filed thereto.2 [Doc. Nos. 23, 26.] Plaintiff Eileen Peviani voluntarily dismissed all of her claims, without prejudice, as against all Defendants on August 26, 2010.3 [Doc. No. 35.]
A complaint may be dismissed for failure to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). The court, viewing all allegations in the complaint in the light most favorable to the plaintiff, must decide if the plaintiff alleges enough facts to state a claim for 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). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ... a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.’ ” Id. at 555, 127 S.Ct. 1955 (citations omitted). In other words, courts must review the complaint to determine: (1) if it alleges genuine facts, rather than mere legal conclusions; (2) if the facts alleged (assumed to be true), as well as the reasonable inferences drawn therefrom, establish a claim; and (3) if relief based upon the facts alleged is plausible. Ashcroft v. Iqbal, –––U.S. ––––, 129 S.Ct. 1937, 1949–50, 173 L.Ed.2d 868 (2009). “For a complaint to survive a motion to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir.2009).
If a district court grants a motion to dismiss, it must also decide whether to permit a plaintiff to amend the pleading. Although the policy favoring amendments must be applied with “extreme liberality,” Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.1990), leave to amend is not required when “the pleading could not possibly be cured by the allegation of other facts.” Knappenberger v. City of Phoenix, 566 F.3d 936, 942 (9th Cir.2009) (quoting Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000)).
Defendants request that the Court take judicial notice of numerous documents: (1) the Food Labeling Guide issued by the United States Food and Drug Administration (“FDA”); (2) product labels for the six (6) varieties of Hostess 100 Calorie Packs at issue; (3) an Order Granting Defendant's Motion to Dismiss with Prejudice in Rosen v. Unilever United States, Inc., Case No. C09–02563, 2010 WL 4807100 (Ware, J.); (4) an Order Granting in Part and Denying in Part Defendant's Motion to Dismiss in Yumul v. Smart Balance, Inc., Case No. CV10–00927, 733 F.Supp.2d 1117, 2010 WL 3359663 (Morrow, J.); and (5) the declaration of J. Randall Vance, Senior Vice President of Finance and Treasurer at Hostess, in Support of Defendant Hostess Brands, Inc.'s Motion to Dismiss filed May 6, 2010 (“Vance Declaration”).
Pursuant to Federal Rule of Evidence 201, “[a] court shall take judicial notice if requested by a party and supplied with the necessary information.” Fed.R.Evid. 201(d). An adjudicative fact may be judicially noticed if it is “not subject to reasonable dispute in that it is 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(b). Thus, a court “may take judicial notice of matters of public record, including duly recorded documents, and court records available to the public through the Pacer system via the internet.” C.B. v. Sonora Sch. Dist., 691 F.Supp.2d 1123, 1138 (E.D.Cal.2009) (Wanger, J.); see also Holder v. Holder, 305 F.3d 854, 866 (9th Cir.2002).
Defendants request that the Court take judicial notice of the FDA Food Labeling Guide, which is a regulatory guideline disseminated by the FDA in order to provide nonbinding guidance regarding requirements for trans fat labeling. The Court finds that the FDA Food Labeling Guide is a judicially noticeable document. See Ries v. Hornell Brewing Co., 2010 WL 2943860, *5 n. 3, 2010 U.S. Dist. LEXIS 86384, *16 n. 3 (N.D.Cal. July 23, 2010) (Fogel, J.) (); see also Hansen Bev. Co. v. Innovation Ventures, LLC, 2009 WL 6597891, *2, 2009 U.S. Dist. LEXIS 127605, *6–7 (S.D.Cal. Dec. 23, 2009) (Gonzalez, J) ().
Defendants also request that the Court take judicial notice of the product labels for the six (6) Hostess 100 Calorie Pack products that are the subject of Plaintiffs' First Amended Complaint. Although the photocopied product labels submitted by Defendants show additional product labeling, the images are even more illegible than those attached to Plaintiffs' First Amended...
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