Roper v. Big Heart Pet Brands, Inc.

• Decision Date: 30 December 2020
• Docket Number: No. 1:19-cv-00406-DAD-BAM,1:19-cv-00406-DAD-BAM
• Citation: 510 F.Supp.3d 903
• Court: U.S. District Court — Eastern District of California
• Parties: Pennie ROPER, individually and on behalf of all others similarly situated, Plaintiff, v. BIG HEART PET BRANDS, INC., Defendant.

510 F.Supp.3d 903

Pennie ROPER, individually and on behalf of all others similarly situated, Plaintiff,

v.BIG HEART PET BRANDS, INC., Defendant.

No. 1:19-cv-00406-DAD-BAM

United States District Court, E.D. California.

Signed December 30, 2020

Benjamin Heikali, Faruqi & Faruqi LLP, Los Angeles, CA, Michael R. Reese, Reese LLP, New York, NY, for Plaintiff.

Ronald Y. Rothstein, Pro Hac Vice, Winston & Strawn LLP, Chicago, IL, Megan Lee Whipp, Winston & Strawn LLP, Los Angeles, CA, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS

Dale A. Drozd, UNITED STATES DISTRICT JUDGE

This matter is before the court on defendant's motion (Doc. No. 13) to dismiss plaintiff's complaint. (Doc. No. 1) A hearing on that motion was held on August 20, 2019. (Doc. No. 25.) Attorney Ronald Rothstein appeared telephonically on behalf of defendant and attorneys Michael Reese and Benjamin Heikali appeared telephonically on behalf of plaintiff and the proposed class. (Id. ) For the reasons explained below, the court will grant in part and deny in part defendant's motion to dismiss.¹

BACKGROUND

Plaintiff Pennie Roper originally filed her complaint in Stanislaus County Superior Court on February 13, 2019. (Id. , Ex. 1 ("Compl.").) Therein, plaintiff alleges the following: Defendant Big Heart Pet Brands, Inc. has labeled and advertised a series of products ("Products") with the representations "All Natural." (Compl. at ¶ 2.) However, the Products allegedly contain non-natural, artificial, and synthetic ingredients including sodium tripolyphosphate ("STPP"), synthetic vitamins and minerals, citric acid, and lactic acid. (Id. at ¶ 4.) Plaintiff and other consumers relied on defendant's natural representations when purchasing the products and would have either not purchased them or paid significantly less. (Id. at ¶ 6.) At all relevant times, defendant made the natural representations because consumers "perceive all natural foods as better, healthier, and more wholesome." (Id. at ¶ 22.) Defendant knew what representations it made about the Products and knew what ingredients were added to them since it "formulated and manufactured, or oversaw the formulation and manufacturing of, the Products and then listed all the Products’ ingredients on the packaging." (Id. at ¶ 24.) The Products are governed by federal regulations that control the labeling of the Products, and some of the ingredients have been federally declared to be synthetic substances. (Id. )

Despite being misled, plaintiff would likely repurchase the Products in the future if the Products were reformulated to be free of the allegedly unnatural ingredients. (Id. at ¶ 33.) However, plaintiff will remain unable to rely on the natural representations in the future because she has no way of determining whether the Products would be free of the challenged ingredients. (Id. )

Plaintiff brings this case as a class action for all California residents who purchased any of the Products for personal, or household purposes. (Compl. at ¶ 35.) Based upon her allegations, plaintiff asserts seven causes of action, including: (i) Violation of California's Consumers Legal Remedies Act ("CLRA"); (ii) Violation of California's Unfair Competition Law ("UCL"); (iii) Violation of California's False Advertising Law ("FAL"); (iv) Breach of Express Warranty; (v) Breach of Implied Warranty; (vi) Intentional Misrepresentation; and (vii) Breach of Quasi-Contract/Unjust Enrichment/Restitution under California Law. (Id. at ¶¶ 46–109.)²

On March 29, 2019 this case was removed by defendant from the Stanislaus County Superior Court based on diversity jurisdiction ( 28 U.S.C. § 1332 ). (Doc No. 1.) On April 18, 2019, defendant filed a motion to dismiss all of plaintiff's claims. (Doc. No. 13.) On June 4, 2019, plaintiff filed her opposition to the motion to dismiss. (Doc. No. 19.) On July 2, 2019, defendant filed its reply. (Doc. No. 21.) On December 16, 2020, plaintiff filed a request for leave to file supplemental authority. (Doc. No. 45.)

LEGAL STANDARD

A. Motion to Dismiss Pursuant to Rule 12(b)(6)

The purpose of a motion to dismiss brought pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n , 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1990). A claim for relief must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Though Rule 8(a) does not require detailed factual allegations, a plaintiff is required to 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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Ashcroft v. Iqbal , 556 U.S. 662, 677–78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding , 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) ; Love v. United States , 915 F.2d 1242, 1245 (9th Cir. 1989). It is inappropriate to assume that the plaintiff "can prove facts which it has not alleged or that the defendants have violated the ... laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters , 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983).

B. Pleading Fraud Pursuant to Rule 9(b)

A complaint alleging fraud must also satisfy heightened pleading requirements. Fed. R. Civ. P. Rule 9(b) ("In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake."). "Fraud can be averred by specifically alleging fraud, or by alleging facts that necessarily constitute fraud (even if the word ‘fraud’ is not used)." Kearns v. Ford Motor Co. , 567 F.3d 1120, 1124 (9th Cir. 2009) (citing Vess v. Ciba-Geigy Corp. USA , 317 F.3d 1097, 1107 (9th Cir. 2003) ). "When an entire complaint, or an entire claim within a complaint, is grounded in fraud and its allegations fail to satisfy the heightened pleading requirements of Rule 9(b), a district court may dismiss the complaint or claim." Vess , 317 F.3d at 1107.

Under Rule 9(b), the "circumstances constituting the alleged fraud [must] be ‘specific enough to give defendants notice of its particular misconduct ... so they can defend against the charge and not just deny that they have done anything wrong.’ " Kearns , 567 F.3d at 1124 (citing Bly-Magee v. California , 236 F.3d 1014, 1019 (9th Cir. 2001) ). To satisfy the particularity standard of Rule 9(b), the plaintiff must allege the " ‘who, what, when, where, and how’ of the misconduct charged." Id. (citing Vess , 317 F.3d at 1106 ).

ANALYSIS³

A. Intentional Misrepresentation

Under California law, the elements of an intentional representation claim are (1) misrepresentation; (2) knowledge of falsity; (3) intent to defraud, i.e. , to induce reliance; (4) justifiable reliance; and (5) resulting damage. See Helo v. Bank of Am. Servicing Co. , No. 1:14-cv-01522-LJO-JLT, 2015 WL 4673890, at *3 (E.D. Cal. Aug. 6, 2015) (citing UMG Recording, Inc. v. Bertelsmann AG , 479 F.3d 1078, 1096 (9th Cir. 2007) ).

Defendant argues that to properly allege an intentional misrepresentation claim "it must be ‘probable that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.’ " (Doc. No. 13 at 18) (citing Lavie v. Procter & Gamble Co. , 105 Cal. App. 4th 496, 508, 129 Cal.Rptr.2d 486 (2003) ). Defendant cites to the decision in Hairston v. South Beach Beverage Company , No. CV 12-1429-JFW (DTBx), 2012 WL 1893818, at *4 (C.D. Cal. May 18, 2012) in support of the contention that whether a representation is likely to deceive is evaluated in the context of the advertisement as a whole and not based upon a single out-of-context phrase found in one component of the label. (Doc. No. 13 at 18.) Defendant further argues that plaintiff cannot plausibly "allege that a reasonable consumer would be deceived into believing that a product does not contain the very ingredients that are disclosed in the front-facing representation-at-issue." (Id. at 19) (referring to the fact that the label on its product includes "with added vitamins, minerals & nutrients"). Defendant contends that plaintiff did not allege in her complaint that a reasonable consumer would be deceived by the added vitamins, minerals, and nutrients language and argues plaintiff cannot change her argument in response to its motion to dismiss. (Id. at 20.) Even if plaintiff could make this new argument, defendant asserts that "a reasonable consumer would not be likely to understand the label in such a strained manner." (Id. )

Defendant also claims that its representation is entirely accurate because its packaging/description complies with the pet food guidelines of the Association of American Feed Control Officials ("AAFCO"). (Id. at 12.) Defendant notes that processed pet food is regulated by the California Department of Public Health ("CDPH"). (Id. at 16.) Defendant avers that when the CDPH reviews the common names and definitions of pet food ingredients not mentioned in the California Health and Safety Code regulations, it looks to the AAFCO for guidance. (Id. at 16) (citing 17 C.C.R § 19005(m)). According to defendant, because the AAFCO guidelines allow for heat processing, chemically synthetic additives that unavoidably occur, and...