Williams ex rel. Tabiu v. Gerber Products Co.

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: Pregerson
• Citation: Williams ex rel. Tabiu v. Gerber Products Co., 523 F.3d 934 (9th Cir. 2008)
• Decision Date: 21 April 2008
• Docket Number: No. 06-55921.,06-55921.
• Parties: Nakia WILLIAMS, individually and on behalf of all others similarly situated; Rita TABIU, Plaintiffs-Appellants, v. GERBER PRODUCTS COMPANY, a Michigan corporation, Defendant-Appellee.

523 F.3d 934

Nakia WILLIAMS, individually and on behalf of all others similarly situated; Rita TABIU, Plaintiffs-Appellants, v. GERBER PRODUCTS COMPANY, a Michigan corporation, Defendant-Appellee.

No. 06-55921.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 7, 2008.

Filed April 21, 2008.

Harold M. Hewell, Hewell Law Firm, APC, San Diego, CA, for the plaintiffs-appellants.

Bryan Merryman, Francisco Cabada, White & Case LLP, Los Angeles, CA, for the defendant-appellee.

Appeal from the United States District Court for the Southern District of California; Jeffrey T. Miller, District Judge, Presiding. D.C. No. CV-05-01278-JTM.

Before: HARRY PREGERSON, GLENN L. ARCHER, JR.,^* and KIM McLANE WARDLAW, Circuit Judges.

PREGERSON, Circuit Judge:

Named class members Nakia Williams and Rita Tabiu ("Appellants"), parents of small children, brought a class action against Gerber Products Company ("Gerber"). An amended complaint alleged that Gerber deceptively marketed its "Fruit Juice Snacks" ("Snacks") a food product developed for toddlers. The district court granted Gerber's motion to dismiss under Rule 12(b)(6). We have jurisdiction under 28 U.S.C. § 1291, and we reverse.

I. BACKGROUND

Appellants bought Gerber's Fruit Juice Snacks because they sought healthy snacks for their children (ages two and three) and because they trusted the Gerber name. Fruit Juice Snacks are sold as part of Gerber's "Graduates for Toddlers" product line. Appellants' amended complaint alleged eight causes of action, including tort claims for misrepresentation and breach of warranty, as well as claims under California's Unfair Competition Law, Cal. Bus. & Prof.Code § 17200 et seq., and California's Consumer Legal Remedies Act, Cal. Civil Code § 1750 et seq. Appellants challenged five features of the packaging used by Gerber to sell its Fruit Juice Snacks.¹ First, Appellants challenged the use of the words "Fruit Juice" juxtaposed alongside images of fruits such as oranges, peaches, strawberries, and cherries. Appellants contended that this juxtaposition was deceptive because the product contained no fruit juice from any of the fruits pictured on the packaging and because the only juice contained in the product was white grape juice from concentrate. Second, Appellants challenged a statement on the side panel of the packaging describing the product as made "with real fruit juice and other all natural ingredients," even though the two most prominent ingredients were corn syrup and sugar. Third, Appellants challenged a separate statement on the side panel; namely, that Snacks was "one of a variety of nutritious Gerber Graduates foods and juices." Fourth, Appellants challenged Gerber's decision to label the product a "snack" instead of a "candy," "sweet," or a "treat." Finally, Appellants alleged that the phrase "naturally flavored" did not comply with applicable type size requirements.²

Gerber filed a motion to dismiss under Rule 12(b)(6), which the district court granted. The district court found that Gerber's statements were not likely to deceive a reasonable consumer, particularly given that the ingredient list was printed on the side of the box and that the "nutritious" claim was non-actionable puffery. Appellants timely appealed.

II. STANDARD OF REVIEW

"A dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) is reviewed de novo. All allegations of material fact in the complaint are taken as true and construed in the light most favorable to the plaintiff." Stoner v. Santa Clara County Office of Educ., 502 F.3d 1116, 1120 (9th Cir.2007) (internal citations and quotation marks omitted).

III. DISCUSSION

A. Appellants' Deficient Opening Brief

Gerber argues that this appeal should be dismissed with prejudice because of deficiencies in the opening brief. We have the discretion to dismiss appeals because of deficiencies in the briefs. See N/S Corp. v. Liberty Mutual Ins. Co., 127 F.3d 1145, 1146 (9th Cir.1997) (dismissing appeal where brief omitted standard of review, contained only a handful of record citations, and exceeded the word limit, and where appellant did not respond to motion to dismiss); Sekiya v. Gates, 508 F.3d 1198, 1200 (9th Cir.2007) (dismissing appeal where brief failed to provide applicable standard of review, made virtually no legal argument, and lacked table of contents, table of authorities, citations to authority, and accurate citations to the record).

Appellants' opening brief fails to comply with the rules of this circuit. The arguments are not well-developed or supported and there are multiple technical violations of the rules. Even where we have previously dismissed appeals because of deficient briefing, however, we have noted that "we would feel most uneasy if this were an otherwise meritorious appeal, which cried out for reversal of the district court's decisions." N/S Corp., 127 F.3d at 1146. Here, we believe that Appellants' claim has merit. We have also received amicus briefs from the Center for Science in the Public Interest and from the California Attorney General, which provide additional support for Appellants' legal arguments. We thus decline to exercise our discretion to dismiss the appeal.

B. Gerber's Preemption Argument

In Gerber's answering brief, it argues for the first time that some of Appellants' claims were preempted by the Federal Food Drug and Cosmetic Act ("FDCA"). Because Gerber did not argue this below, the district court did not address the issue, and we decline to decide this issue in the first instance based on arguments made in an answering brief, particularly where nothing in Appellants' complaint suggested that they were attempting to directly enforce violations of the FDCA.

C. The District Court's Decision to Grant the Motion to Dismiss

The district court granted Gerber's motion to dismiss all of Appellants' claims. On Appellants' statutory claims (under California's Unfair Competition Law and Consumer Legal Remedies Act), the district court found that the Snacks' packaging was "not likely to deceive a reasonable consumer as a matter of law." Williams v. Gerber Products Co., 439 F.Supp.2d 1112, 1117 (S.D.Cal.2006). It similarly dismissed the fraud and warranty claims, holding that "the challenged statements and images, viewed in context, are truthful or constitute non-actionable puffery." Id. at 1118.

California's Unfair Competition Law ("UCL") prohibits any "unlawful, unfair or fraudulent business act or practice." Cal. Bus. and Prof.Code § 17200. The false advertising law prohibits any "unfair, deceptive, untrue, or misleading advertising." Cal. Bus. and Prof.Code § 17500. "`[A]ny violation of the false advertising law . . . necessarily violates' the UCL." Kasky v. Nike, Inc. 27 Cal.4th 939, 950, 119 Cal. Rptr.2d 296, 45 P.3d 243 (2002) (quoting Comm. on Children's Television, Inc. v. General Foods Corp., 35 Cal.3d 197, 210, 197 Cal.Rptr. 783, 673 P.2d 660 (1983)). California's Consumer Legal Remedies Act ("CLRA") prohibits "unfair methods of competition and unfair or deceptive acts or practices." Cal. Civ.Code § 1770.

Appellants' claims under these California statutes are governed by the "reasonable consumer" test. Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir.1995) ("[T]he false or misleading advertising and unfair business practices claim must be evaluated from the vantage of a reasonable consumer." (citation omitted)); Lavie v. Procter & Gamble Co., 105 Cal.App.4th 496, 506-07, 129 Cal.Rptr.2d 486 (Cal.App. 2003) ("[U]nless the advertisement targets a particular disadvantaged or vulnerable group, it is judged by the effect it would have on a reasonable consumer.").

Under the reasonable consumer standard, Appellants must "show that `members of the public are likely to be deceived.' " Freeman, 68 F.3d at 289 (quoting Bank of West v. Superior Court, 2 Cal.4th 1254, 1267, 10 Cal.Rptr.2d 538, 833 P.2d 545 (1992)). The California Supreme Court has recognized "that these laws prohibit 'not only advertising which is false, but also advertising which[,] although true, is either actually misleading or which has a capacity, likelihood or tendency to deceive or confuse the public.'" Kasky, 27 Cal.4th at 951, 119 Cal.Rptr.2d 296, 45 P.3d 243 (quoting Leoni v. State Bar, 39 Cal.3d 609, 626, 217 Cal.Rptr. 423, 704 P.2d 183 (1985)).

A district court should grant a motion to dismiss if plaintiffs have not pled "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level." Id. at 1965. See also 5 C. Wright & A. Miller, Federal Practice and Procedure § 1356 ("[T]he motion [to dismiss] is not a procedure for resolving a contest between the parties about the facts or the substantive merits of the plaintiff's case.").

Here, the district court based its decision to grant the motion to dismiss solely on its own review of an example of the packaging. It is true that "the primary evidence in a false advertising case is the advertising itself." Brockey v. Moore, 107 Cal.App.4th 86, 100, 131 Cal.Rptr.2d 746 (Cal.App.2003). California courts, however, have recognized that whether a business practice is deceptive will usually be a question of fact not appropriate for decision on demurrer. See e.g., Linear Technology Corp. v. Applied Materials, Inc., 152 Cal.App.4th 115, 134-35, 61 Cal. Rptr.3d 221 (2007) ("Whether a practice is deceptive, fraudulent, or unfair is generally a question of fact which requires `consideration and weighing of evidence from both sides' and which usually cannot be made on demurrer." (quoting McKell v. Washington Mutual, Inc., 142 Cal.App.4th 1457, 1472, 49 Cal.Rptr.3d 227 (Cal.App. 2006))); Committee on Children's Television, 35 Cal.3d at 197, 197 Cal.Rptr. 783, 673 P.2d 660 (finding demurrer...