Viggiano v. Hansen Natural Corp.

Decision Date13 May 2013
Docket NumberCase No. CV 12–10747 MMM (JCGx).
Citation944 F.Supp.2d 877
CourtU.S. District Court — Central District of California
PartiesSteven VIGGIANO, on behalf of himself and all others similarly situated, Plaintiff, v. HANSEN NATURAL CORPORATION; Hansen Beverage Company; Monster Beverage Corporation; and Does 1 through 100, inclusive, Defendants.

OPINION TEXT STARTS HERE

Kenneth K. King, Kurt E. Kananen, Ronald Allen Hartmann, Hartmann and Kananen, Woodland Hills, CA, Kiley Lynn Grombacher, Marcus J. Bradley, Marlin and Saltzman, Agoura Hills, CA, for Plaintiff.

David F. McDowell, Purvi G. Patel, Dan E. Marmalefsky, Morrison and Foerster LLP, Los Angeles, CA, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

MARGARET M. MORROW, District Judge.

On November 13, 2012, Steven Viggiano, on behalf of himself and all similarly situated persons, filed a class action complaint in state court against Hansen Natural Corporation, and various affiliated companies (collectively Hansen).1 The action was removed to this court on December 17, 2012.2 On January 25, 2013, Viggiano filed a first amended complaint.3 The complaint pleads claims for violation of the Consumers Legal Remedies Act (“CLRA”), California Civil Code §§ 1750 et seq., the False Advertising Law (“FAL”), California Business & Professions Code §§ 17500 et seq., and the Unfair Competition Law (“UCL”), California Business & Professions Code §§ 17200 et seq. It also alleges various breach of warranty claims under state and federal law. Hansen moved to dismiss the first amended complaint on March 1, 2013.4 Viggiano opposes the motion. 5

I. BACKGROUND

Hansen is a company in the beverage industry.6 Among its products is a line of diet sodas—Diet Hansen's Premium Sodas.7 The sodas are sold in supermarkets and at other retail establishments throughout the United States.8 Hansen offers different flavors of the diet soda, such as creamy root beer, tangerine lime, and pomegranate.9 On the front of each can of diet soda is a label stating that the soda contains “all natural flavors;” this label also appears on the front of the box in which the diet soda is packaged.10 Each flavor of soda allegedly contains two synthetic ingredients, however: acesulfame potassium (“ace-k”) and sucralose. 11 These ingredients are purportedly artificial sweeteners and/or “flavor enhancers.” 12 Each soda also contains at least one natural fruit extract flavor.13

Viggiano has purchased several cans of Hansen's Diet Premium Sodas at a retail outlet store in Moorpark, California within the past four years.14 He alleges that the fact that the soda contains artificial ingredients makes the label claim “all natural flavors” false or misleading, as reasonable consumers would understand “natural flavors” to mean that the flavors have not been “modified, enhanced and/or supplemented with artificial and/or synthetic compounds.” 15 Viggiano also asserts that naming the soda “Premium Diet Soda” denotes that the quality of the beverage is higher than competing diet sodas; 16 he contends this too implies that Hansen's diet sodas are flavored only with natural ingredients, not synthetic flavor enhancers.17 Plaintiff alleges that Hansen uses the “all natural flavors” labeling to mislead consumers and cause them to believe “that the ingredients that give the products their flavor are all natural,” when in fact the flavors are supplemented by synthetic compounds.18 Viggiano contends he relied on Hansen's representations that the diet soda was “premium” and contained “all natural flavors,” and inferred from them that the beverages contained no artificial sweeteners or flavor enhancers.19 He asserts that, had he known the truth, he would not have purchased the drink.20

Viggiano sues on his own behalf and on behalf of a nationwide class of persons who purchased Hansen's Diet Premium Soda within the last four years. 21 He also seeks to represent a sub-class of all California residents who purchased the soda within the past four years.22

II. DISCUSSION
A. Hansen's Request for Judicial Notice

Hansen asks that the court take judicial notice of three exhibits, each containing images of Hansen's diet soda packaging and individual cans. The exhibits are images of the packaging for Hansen's diet tangerine lime soda; 23 the statement of ingredients on Hansen's diet creamy root beer cans; 24 and the statement of ingredients on Hansen's diet pomegranate can.25 Hansen asserts that Viggiano's complaint relies on the exhibits and that their authenticity is unchallenged.26

In deciding a Rule 12(b)(6) motion, the court generally looks only to the face of the complaint and documents attached thereto. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir.2002); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n. 19 (9th Cir.1990). It may, however, consider documents that are incorporated by reference but not physically attached to the complaint if they are central to plaintiffs' claim and no party questions their authenticity. See Marder v. Lopez, 450 F.3d 445, 448 (9th Cir.2006) (in ruling on a motion to dismiss for failure to state a claim [a] court may consider evidence on which the complaint ‘necessarily relies' if: (1) the complaint refers to the document; (2) the document is central to the plaintiff's claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion,” citing Branch v. Tunnell, 14 F.3d 449, 453–54 (9th Cir.1994), overruled on other grounds, Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir.2002)); Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1141 n. 5 (9th Cir.2003); Chambers v. Time Warner, Inc., 282 F.3d 147, 153 n. 3 (2d Cir.2002)); see also Sanders v. Brown, 504 F.3d 903, 910 (9th Cir.2007) (“Review is generally limited to the contents of the complaint, but a court can consider a document on which the complaint relies if the document is central to the plaintiff's claim, and no party questions the authenticity of the document,” citing Warren, 328 F.3d at 1141 n. 5);Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.2001) (“If the documents are not physically attached to the complaint, they may be considered if the documents' ‘authenticity ... is not contested’ and ‘the plaintiff's complaint necessarily relies' on them,” citing Parrino v. FHP, Inc., 146 F.3d 699, 705–06 (9th Cir.1998)); In re Silicon Graphics Inc. Securities Litigation, 183 F.3d 970, 986 (9th Cir.1999) ([The incorporation by reference doctrine] permits a district court to consider documents ‘whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiffs'] pleading,’ quoting Branch, 14 F.3d at 454).

Viggiano references the statement of ingredients on both Hansen diet soda cans and packaging several times in the complaint.27 In fact, he has included various images of Hansen diet soda cans and the packaging in his complaint.28 Viggiano does not dispute the accuracy of the exhibits Hansen seeks to have the court review. The court will therefore consider the documents under the incorporation by reference doctrine.

B. Legal Standard Governing Motions to Dismiss under Rule 12(b)(6)

A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in a complaint. A Rule 12(b)(6) dismissal is proper only where there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir.1988). In deciding a Rule 12(b)(6) motion, the court generally looks only to the face of the complaint and documents attached thereto. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir.2002); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n. 19 (9th Cir.1990).

The court must accept all factual allegations pleaded in the complaint as true, and construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Insurance Co., 80 F.3d 336, 337–38 (9th Cir.1996); Mier v. Owens, 57 F.3d 747, 750 (9th Cir.1995). It need not, however, accept as true unreasonable inferences or legal conclusions cast in the form of factual allegations. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) ([B]are assertions ... amount[ing] to nothing more than a ‘formulaic recitation of the elements' of a constitutional discrimination claim” are not entitled to an assumption of truth, quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir.2009) (“Such allegations are not to be discounted because they are ‘unrealistic or nonsensical,’ but rather because they do nothing more than state a legal conclusion—even if that conclusion is cast in the form of a factual allegation”).

To survive a motion to dismiss, plaintiff's complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ... 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, 129 S.Ct. at 1949. See also id. (“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.... Where a complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief,” quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955);Twombly, 550 U.S. at 545, 127 S.Ct. 1955 (“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...

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