Yumul v. Smart Balance, Inc.
Decision Date | 24 May 2010 |
Docket Number | Case No. CV 10-00927 MMM (AJWx) |
Citation | 733 F.Supp.2d 1117 |
Court | U.S. District Court — Central District of California |
Parties | Rebecca YUMUL, individually, and on behalf of all others similarly situated, Plaintiff, v. SMART BALANCE, INC., Defendant. |
Gregory S. Weston, John Joseph Fitzgerald, IV, The Weston Firm, San Diego, CA, Jared H. Beck, Elizabeth Lee Beck, Beck & Lee Business Trial Lawyers, Miami, FL, for Plaintiff.
Rick L. Shackelford of Greenberg Traurig, for Defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS
Rebecca Yumul filed this putative class action against defendant Smart Balance, Inc. ("Smart Balance") on February 8, 2010.1 Yumul's complaint alleges that she purchased Nucoa margarine, a product manufactured by Smart Balance, repeatedly during the class period, from January 1, 2000 until the present.2
Yumul alleges that Nucoa contains artificial trans fat, which raises the risk of coronary heart disease by raising the level of "bad" LDL blood cholesterol and lowering the level of "good" HDL blood cholesterol. 3 Yumul also alleges that trans fat causes cancer and type 2 diabetes.4 Despite the ill effects of trans fat, Smart Balance markets Nucoa as "cholesterol free." Yumul alleges that while possibly true, this statement is misleading, since consumption of Nucoa in fact raises the level of LDL blood cholesterol.5 Yumul contends that use on the product packaging of the word "healthy," (in Spanish, "saludable") is also misleading because of the negative health effects of trans fat.6
Yumul asserts that any statute of limitations that might otherwise bar the action must be tolled because Smart Balance "affirmatively conceal[ed] and publically misrepresent[ed] its violations of law" on the product packaging. Yumul alleges that "[a] reasonable consumer would have relied on the deceptive and false claims on the packaging of Nucoa margarine, and through the exercise of reasonable diligence would not have discovered the violations alleged ... because SBI actively and purposefully concealed the truth." 7
Yumul pleads three causes of action: (1) violation of California's unfair competition law ("UCL"), California Business & Professions Code §§ 17200 et seq.; (2) violation of California's false advertising law ("FAL"), California Business & Professions Code §§ 17500 et seq.; and (3) violation of California's Consumer Legal Remedies Act ("CLRA"), California Civil Code § 1750 et seq.
Yumul seeks (1) an injunction requiring Smart Balance to cease its misleading advertising practices; (2) a mandatory injunction requiring Smart Balance to conduct a corrective advertising campaign; (3) restitution of the amount by which Smart Balance has been unjustly enriched by its false advertising; and (4) a mandatory injunction requiring that Smart Balance destroy all misleading and deceptive materials and products.
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, --- U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) ( ); see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir.2009) ().
To survive a motion to dismiss, plaintiff's complaint must Iqbal, 129 S.Ct. at 1949. See also id. ( ; Twombly, 550 U.S. at 545, 127 S.Ct. 1955 ( . See also, e.g., Moss, 572 F.3d at 969 ( ).
Rule 9(b) requires that, "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Fed.R.Civ.Proc. 9(b); see also 5A Charles A. Wright & Arthur W. Miller, Federal Practice and Procedure § 1297 (2006) (). "To avoid dismissal for inadequacy under Rule 9(b)," a "complaint [must] 'state the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentation.' " Edwards v. Marin Park, Inc., 356 F.3d 1058, 1066 (9th Cir.2004) ); see also In re GlenFed Securities Litigation, 42 F.3d 1541, 1548 (9th Cir.1994) (en banc). Conclusory allegations are insufficient, and the facts constituting the fraud must be alleged with specificity. See Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 540 (9th Cir.1989) ( ; see also Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir.1997) ( ).
"It is well-settled that the Federal Rules of Civil Procedure apply in federal court, 'irrespective of the source of the subject matter jurisdiction, and irrespective of whether the substantive law at issue is state or federal.' " Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir.2009) (quoting Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1102 (9th Cir.2003)). Consequently, the Ninth Circuit has held that Rule 9(b)'s pleading requirements apply to both the CLRA and the UCL:
Kearns, 567 F.3d at 1125 (citing Vess, 317 F.3d at 1102-05).
The Ninth Circuit conceded that "fraud [was] not a necessary element of a claim under the CLRA and UCL," but noted that when a plaintiff alleges "fraudulent conduct and rel[ies] entirely on that course of conduct as the basis of that claim," then "the claim [can be] said to be 'grounded in fraud' or to 'sound in fraud,' and the pleading ... as a whole must satisfy the particularity requirement of Rule 9(b)." Id. District courts in California have consistently held in addition that claims under California's FAL are grounded in fraud. See,e.g., Pom Wonderful LLC v. Ocean Spray...
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