Del Real, LLC v. Harris

• Decision Date: 19 August 2013
• Docket Number: No. 1:12–cv–001669 LJO–GSA.,1:12–cv–001669 LJO–GSA.
• Citation: 966 F.Supp.2d 1047
• Parties: DEL REAL, LLC, a California limited liability company, Plaintiff, v. Kamala D. HARRIS, in her official capacity as Attorney General of California, Defendant.
• Court: U.S. District Court — Eastern District of California

966 F.Supp.2d 1047

DEL REAL, LLC, a California limited liability company, Plaintiff,

v.Kamala D. HARRIS, in her official capacity as Attorney General of California, Defendant.

No. 1:12–cv–001669 LJO–GSA.

United States District Court,

E.D. California.

Aug. 19, 2013.

Recognized as Preempted

West's Ann.Cal.Bus. & Prof.Code § 12211

Limited on Preemption Grounds

West's Ann.Cal.Bus. & Prof.Code §§ 12606(b), 12606.2(c)Darren P. Trone, Law Offices of Darren Trone, Riverside, CA, Kent Jeffrey Schmidt, Dorsey & Whitney LLP, Costa Mesa, CA, Steven J. Wells, Timothy J. Droske, Dorsey and Whitney LLP, Minneapolis, MN, for Plaintiff.

Alexandra Robert Gordon, CA. Dept. of Justice, San Francisco, CA, Susan K. Smith, Office of the Attorney General of California, Los Angeles, CA, for Defendant.

MEMORANDUM DECISION AND ORDER RE CROSS MOTIONS FOR SUMMARY JUDGMENT (DOCS. 26 & 37)

LAWRENCE J. O'NEILL, District Judge.

I. INTRODUCTION

Plaintiff Del Real, LLC (“Del Real”) prepares, packages, and sells fully cooked meat and poultry dishes that are distributed and sold throughout California. Several California counties have threatened enforcement actions against Del Real, alleging that Del Real's products are packaged in violation of the nonfunctional slack fill provisions of the California Fair Packaging and Labeling Act (“CFPLA”), Cal. Bus. & Prof.Code §§ 12606, 12606.2. Del Real challenges CFPLA's slack fill regulations, arguing they are preempted as applied to meat and poultry products regulated by the Federal Meat Inspection Act (“FMIA”) and Poultry Products Inspection Act (“PPIA”).

Before the Court for decision are cross motions for summary judgment. Plaintiff's opening motion, filed March 20, 2013, seeks summary judgment as well as permanent injunctive and declaratory relief on Del Real's preemption claim. Doc. 26. In addition, Plaintiff seeks judgment in its favor on Defendant's justiciability and affirmative defenses. Id. Defendant Kamala Harris, the Attorney General of California, cross-moves for summary judgment, arguing that the CFPLA is not preempted because it is consistent with FMIA and PPIA; to the extent the CFPLA requires additional or different requirements, the CFPLA is inoperative, not preempted; and even if the CFPLA is partially unconstitutional by virtue of preemption, the preempted provisions should be severed from the remainder of the statute. Doc. 37. Plaintiff filed a combined opposition and reply, Doc. 38, as did Defendant, Doc. 39. The motions were fully briefed as of July 12, 2013. Having reviewed these filings, and in light of the entire record, the Court does not believe oral argument is necessary to aid resolution of these motions, and hereby rules on the papers pursuant to Local Rule 230(g).

II. FACTUAL BACKGROUND

Del Real's fully cooked meat and poultry Mexican dishes are packaged in heat and serve containers that are distributed and sold throughout California. Plaintiff's Statement of Undisputed Fact (PSUF) # 1.¹ Certain meat and poultry dishes packaged in sixteen-ounce containers are sold in grocery stores. PSUF # 2. Other meat and poultry dishes are sold in thirty-two and forty ounce containers at club stores. PSUF 3–4.

Del Real's packaging process occurs at a California facility subject to inspection by the United States Department of Agriculture under the FMIA and PPIA. PSUF # 6. A USDA inspector is on site at Del Real's facility and present for all shifts. PSUF # 7. To Del Real's knowledge, the USDA has never expressed concern that Del Real's packaging is misleading in any way, nor has Del Real, to its knowledge, ever been subject to any investigation, allegation or charge by the federal government with respect to the fill of its products. PSUF # 8.

In or around August 2010, the Sonoma County Division of Weights and Measures claimed to have measured the amount of slack fill in several of Del Real's packaged products, and reported that the packaging amounts to a “clear violation” of the CFPLA. PSUF 9–10. Likewise, the California Department of Food and Agriculture conducted its own investigation in October 2010 into the slack fill in two of Del Real's products, concluding that the packaging violated the CFPLA. PSUF # 11. Similar investigations in Napa and Alameda Counties resulted in similar conclusions. PSUF # 12. In November 2011, the Consumer Protection Divisions of the Alameda, Napa, and Sonoma County District Attorney's Offices sent a letter to Del Real, alleging that Del Real's packaging was in violation of the slack fill provisions of the CFPLA. PSUF # 14. A June 2012 letter from the Sonoma County District Attorney's Office expanded the allegations to other Del Real packaged food products. PSUF # 15. ²

III. STANDARD OF DECISION

Summary judgment is proper if the movant shows “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. The moving party bears the initial burden of “informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). A fact is material if it could affect the outcome of the suit under the governing substantive law; “irrelevant” or “unnecessary” factual disputes will not be counted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

If the moving party would bear the burden of proof on an issue at trial, that party must “affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007). In contrast, if the non-moving party bears the burden of proof on an issue, the moving party can prevail by “merely pointing out that there is an absence of evidence to support the non-moving party's case.” Id.

Where a case, such as this one, does not turn on its facts, but rather presents a pure question of law, the matter is well suited for summary disposition. Citizens for Honesty & Integrity in Reg'l Planning v. Cnty. of San Diego, 258 F.Supp.2d 1132, 1135 (S.D.Cal.2003) appeal dismissed and remanded, 399 F.3d 1067 (9th Cir.2005); see also Comm. of Dental Amalgam Mfrs. & Distributors v. Stratton, 92 F.3d 807, 810 (9th Cir.1996).

IV. DISCUSSION

A. Justiciability Defenses.

Defendant raised three justiciability defenses in its Answer: (1) there is no Article III case or controversy, (2) that Plaintiff lacks standing, and (3) that the claims are not ripe. Plaintiff challenged these defenses in its motion for summary judgment. Doc. 26 at 15. Defendant did not respond. Because of its sua sponte duty to ensure Article III jurisdiction, the Court has independently examined these issues and wholly adopts the reasoning provided at pages 15 to 16 of Plaintiff's motion:

Whether a “case or controversy within the meaning of Art. III of the Constitution” has been alleged when a plaintiff challenges a statute depends on whether the plaintiff can “demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement.” Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 297–98 [99 S.Ct. 2301, 60 L.Ed.2d 895] (1979) (internal quotations omitted). The Supreme Court has made clear, however, that “[o]ne does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending, that is enough.” Id. (internal quotations omitted). Instead, “[i]t is sufficient for standing purposes that the plaintiff intends to engage in a ‘course of conduct arguably affected with a constitutional interest’ and that there is a credible threat that the challenged provision will be invoked against the plaintiff.” LSO, Ltd. v. Stroh, 205 F.3d 1146, 1154–55 (9th Cir.2000) (quoting Babbitt, 442 U.S. at 298 );see Jacobus v. Alaska, 338 F.3d 1095, 1104–05 (9th Cir.2003) (observing that the same “genuine threat of imminent prosecution” also satisfies the ripeness requirement). Here, both of these factors are clearly satisfied. Since 2010, California investigations have claimed that Del Real's meat and poultry products violate the slack fill requirements found in the CFPLA, and Del Real has not, to date, made any changes to its packaging. See Bowden Decl. ¶¶ 11–16; see also Bowden Decl. ¶ 15 & Ex. D at DelR0000083 (claiming Del Real “remains out-of-compliance with BPC § 12606.2”).

Moreover, there is clearly a credible threat that the challenged provision will be invoked against Del Real, given that county district attorneys have specifically stated their intent to “fil[e] a law enforcement action.” Bowden Decl. ¶ 13 & Ex. B at DelR0000058. Given this live threat of enforcement, this suit is clearly justiciable before the Court.

Doc. 26 at 15–16.

Defendant also suggested in its Answer that this court should abstain from deciding this case under Railroad Comm'n of Texas v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943); Wilton v. Seven Falls Co., 515 U.S. 277, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995), and/or Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942). These doctrines do not apply to a request for declaratory relief in case of preemption. “Burford and Pullman abstentions are generally inappropriate when the case concerns preemption.” Hotel Employees and Restaurant Employees Intern. Union v. Nevada Gaming Comm'n, 984 F.2d 1507, 1512 (9th Cir.1993). District courts have broad discretion to stay or dismiss actions seeking declaratory judgment, as recognized in Brillhart and Wilton.Brillhart, 316 U.S. at 495, 62 S.Ct. 1173;Wilton, 515 U.S. at...