Amy Joseph v. Trader Joes Company

Filing 68

ORDER GRANTING, IN PART, DEFENDANTS' MOTION TO DISMISS CASE 62 by Judge Otis D. Wright, II. The Court hereby GRANTS, IN PART, AND DENIES, IN PART, Trader Joe's Motion to Dismiss. (ECF No. 62.) Plaintiffs are granted leave to amend, to the extent allowed by this Order. Should Plaintiffs wish to amend their complaint, they must file an amended complaint within 14 days of this Order, and in compliance with Central District Local Rule 15. See document for details. (smo)

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United States District Court
Central District of California

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In re Trader Joe’s Tuna Litigation

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Case No. 2:16-cv-01371-ODW(AJWx)
ORDER GRANTING, IN PART,
DEFENDANTS’ MOTION TO
DISMISS CASE [62]

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I.

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INTRODUCTION

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Defendants Trader Joe’s Company and Trader Joe’s East Inc. (collectively,

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“Trader Joe’s”) move to dismiss Plaintiffs’ Second Amended Complaint (“SAC”) on

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several bases. (ECF No. 55.) On June 2, 2017, the Court granted Trader Joe’s Motion

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to Dismiss Plaintiffs’ First Amended Complaint (“FAC”), with leave to amend. (ECF

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No. 54.) For the reasons discussed below, the Court GRANTS, IN PART, and

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DENIES, IN PART, Trader Joe’s Motion.

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II.

FACTUAL BACKGROUND

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Plaintiffs allege a consumer class action relating to Trader Joe’s allegedly illegal

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and deceptive practices of under filling cans of tuna, despite consumers’ expectations

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that the cans would contain an “adequate amount.” (SAC ¶¶ 1, 12–13, ECF No. 55.)

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Plaintiff Sarah Magier is a citizen of New York who purchased Trader Joe’s Albacore

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Tuna in Water No Salt Added in New York, through the end of 2013, and wishes to

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represent a subclass of all class members who purchased Trader Joe’s tuna in New

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York.

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purchased 5-ounce canned Trader Joe’s Albacore Tuna in Water Salt Added. (Id.

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¶ 13.) Reyes wishes to represent a subclass of all Californians who purchased Trader

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Joe’s tuna. (Id. ¶ 21.)

(Id. ¶¶ 12, 20.)

Plaintiff Atzimba Reyes is a citizen of California, and

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As described in detail in the Court’s prior order, (ECF No. 54), Plaintiffs

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determined that the Trader Joe’s tuna cans were underfilled and underweight by

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commissioning testing with the U.S. National Oceanic and Atmospheric

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Administration (“NOAA”) on December 1, 2015.

(See SAC ¶¶ 2–7.)

NOAA

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conducted this testing by evaluating the pressed cake weight (“Pressed Weight

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Standard”). See 21 C.F.R. § 161.190(c). The Pressed Weight Standard is measured by

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using a complex process requiring specific machinery, and was promulgated by the

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FDA in 1957. Id.; (Mot. 3.) The NOAA tests based on this method determined that

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several varieties of Trader Joe’s tuna fell 19.2%, 24.8%, 24.8%, 11.1%, 9.9%, and

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13.9% below the Pressed Weight Standard. (See SAC ¶¶ 2–7.)

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Trader Joe’s canned tuna labels do not contain any statements regarding the

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“pressed weight,” but do contain representations as to the “net weight” (5 oz.), and the

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“drained weight” (4 oz.).1 (Defendants’ Request for Judicial Notice (“RJN”), Ex. 1,

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ECF Nos. 62-2, 62-4.) NOAA also tested the “net weight” and the “drained weight”

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of the tuna. (RJN, Ex. 2, ECF Nos. 62-2, 62-5.) Trader Joe’s contends that, according

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to the NOAA tests, neither the average “net weight” nor average “drained weight”

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ever tested below 5 oz. or 4 oz., respectively. (Mot. 3.) Plaintiffs do not dispute this.

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Trader Joe’s requests that the Court take judicial notice of various documents, including the labels
of its tuna cans, and the results of the NOAA testing, among other things. (RJN, Exs. 1 & 2, ECF
Nos. 62-2, 62-4, 62-5.) The Court grants Trader Joe’s request and takes notice of the items
identified in Trader Joe’s Request for Judicial Notice (ECF No. 62) because the SAC necessarily
relies on these documents, and neither party objects to their authenticity; in fact, the NOAA results
are addressed to Plaintiffs’ counsel. See United States v. Corinthian Colleges, 655 F.3d 984, 999
(9th Cir. 2011); Carroll v. Yates, No. 1:10-CV-00623-LJO, 2013 WL 100237, at *6, n.7 (E.D. Cal.
Jan. 7, 2013) (taking judicial notice of NOAA study).
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As discussed at length in the Court’s prior Order, (ECF No. 54), Trader Joe’s criticizes

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the Pressed Weight Standard, which is currently under reconsideration by the FDA, as

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being outdated and inaccurate. (Mot. 3–4.) Trader Joe’s also claims that its alleged

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failure to follow the Pressed Weight Standard did not deceive consumers because the

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temporary marketing permit (“TMP”) the FDA granted to Chicken of the Sea

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International, Bumble Bee Foods, LLC, and StarKist Co. (collectively, “Major Tuna

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Producers”) allows them to market tuna without having to comply with the labeling

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requirements associated with the Pressed Weight Standard. (Mot. 3-4; ECF No. 54.)

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Federal Regulations require producers of tuna to state, “Below Standard in Fill,” on

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cans of tuna that do not comply with the Pressed Weight Standard, unless the FDA

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granted

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21 C.F.R. § 130.14(b). The FDA extended TMP for the Major Tuna Producers

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indefinitely on March 7, 2016. 81 Fed. Reg. 11813 (RJN, Ex. 7.) Trader Joe’s does

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not allege that they are currently included in the TMP, but maintain that they applied

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in February 2017. (RJN, Ex. 8, ECF No. 62-11.)

the

manufacturer

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TMP.

See

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C.F.R.

§

161.190(c)(4);

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Since the Court’s prior Order dismissing the FAC on preemption grounds,

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Plaintiffs’ SAC alleges three new categories of fact. First, instead of only violating

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the “federally mandated minimum standard of fill” set forth in title 21, sections

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130.14(b) and 161.190 of the Code of Federal Regulations (SAC ¶ 1), Trader Joe’s

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also violates California’s Sherman Food, Drug and Cosmetic Law (“Sherman Law”),

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which prescribes labeling requirements for certain foods. (Id. ¶ 9.) Plaintiffs also

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allege that Trader Joe’s “conduct runs contrary to the standard practices and

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procedures of other tuna manufacturers.” (Id. ¶ 10.) Finally, Plaintiffs allege they

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relied on the statements on the label in making their purchases, and would not have

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purchased the tuna “if the labels had properly contained the statement ‘Below

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Standard in Fill,’” as required by title 21, section 130.14 of the Code of Federal

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Regulations. (Id. ¶¶ 12–13.)

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Plaintiffs’ SAC alleges claims for: breach of express warranty (Count I), breach

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of implied warranty of merchantability (Count II), unjust enrichment (Count III),

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negligent misrepresentation (Count VI), and fraud (Count VII). (See generally SAC.)

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Plaintiff Magier also brings claims on behalf of herself and the New York subclass for

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violation of New York General Business Law sections 349, 350. (Id. Counts IV & V.)

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Plaintiff Reyes also brings claims on behalf of herself and the California subclass for

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violation of California’s Consumer Legal Remedies Act (“CLRA”), Unfair

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Competition Law (“UCL”), and False Advertising Law (“FAL”). (Id. Counts VIII–X.)

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Trader Joe’s moves to dismiss Plaintiffs’ SAC on several grounds, including, as

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before, an implied preemption theory. (Mot. 5–8.)
III.

LEGAL STANDARD

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A motion to dismiss under either Rule 12(c) or 12(b)(6) is proper where the

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plaintiff fails to allege a cognizable legal theory or where there is an absence of

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sufficient facts alleged under a cognizable legal theory. Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 555 (2007); see also Shroyer v. New Cingular Wireless Serv., Inc., 622

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F.3d 1035, 1041 (9th Cir. 2010). That is, the complaint must “contain sufficient

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factual matter, accepted as true, to state a claim to relief that is plausible on its face.”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

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Accusations of fraud require a heightened particularity in pleading. See Fed. R.

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Civ. P. 9(b). Federal Rule of Civil Procedure 9(b) establishes that an allegation of

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“fraud or mistake must state with particularity the circumstances constituting fraud.”

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The “circumstances” required by Rule 9(b) are the “who, what, when, when, where,

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and how” of the fraudulent activity. Cafasso, ex rel. U.S. v. Gen. Dynamics C4 Sys.,

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Inc., 637 F.3d 1047, 1055 (9th Cir. 2011). In addition, the allegation “must set forth

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what is false or misleading about a statement, and why it is false.”

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heightened pleading standard ensures that “allegations of fraud are specific enough to

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give defendants notice of the particular misconduct which is alleged to constitute the

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fraud charged so that they can defend against the charge and not just deny that they

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have done anything wrong.” Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985).

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Id.

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Generally, a court should freely give leave to amend a complaint that has been

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dismissed, even if not requested by the party. See Fed. R. Civ. P. 15(a); Lopez v.

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Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). However, a court may deny

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leave to amend when it “determines that the allegation of other facts consistent with

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the challenged pleading could not possibly cure the deficiency.” Schreiber Distrib.

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Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986).

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IV.

DISCUSSION

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Trader Joe’s moves to dismiss Plaintiffs’ SAC on several different grounds: (1)

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implied preemption; (2) the doctrine of primary jurisdiction; (3) equitable abstention;

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and (4) a failure to state a viable claim. (See generally Mot.)

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A.

Implied Preemption

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Preemption may be express or implied. Medtronic, Inc. v. Lohr, 518 U.S. 470,

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484–85 (1996). Express preemption occurs where Congress explicitly preempts state

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law. Chae v. SLM Corp., 593 F.3d 936, 941 (9th Cir. 2010). Implied preemption

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occurs where: 1) “state law actually conflicts with federal law;” or 2) “federal law

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occupies a legislative field to such an extent that it is reasonable to conclude that

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Congress left no room for state regulation in that field.” Id. While, at times, the

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parties’ briefing blurs the lines between these two distinct types of preemption, at

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issue here, is whether Plaintiffs’ claims are impliedly preempted by the FDCA’s

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mandate that all actions to enforce the FDCA are brought in the name of the United

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States, or, in limited circumstances, the states. 21 U.S.C. § 337. In the prior Order,

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the Court held that Plaintiffs’ claims were impliedly preempted because Plaintiffs’

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purported state-law claims did not sufficiently “thread the gap” within the Ninth

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Circuit’s rule in Perez v. Nidek Co. and were actually an attempt to improperly enforce

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the FDCA. (June 2, 2017 Order, ECF No. 54.) Now, Plaintiffs assert claims under

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California’s Sherman Law, which they claim provides an independent basis for relief,

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and precludes a finding of preemption. (Opp’n Part II.A, ECF No. 63.) Plaintiffs also

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maintain that the claims based on New York law also provide a right of action that is

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not an attempt to enforce the FDCA. (Opp’n 2–6.)

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There is some tension in the law when it comes to courts’ application of

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Supreme Court preemption precedent because the opinions, as well as the parties,

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often rely on express preemption cases, in an implied preemption scenario, and vice

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versa. The Court is guided by “the assumption that the historic police powers of the

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States [are] not to be superseded by the Federal Act unless that was the clear and

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manifest purpose of Congress.” Wyeth v. Levine, 555 U.S. 555, 565 (2009) (citing and

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quoting Lohr, 518 U.S. at 485). “States have always possessed a legitimate interest in

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‘the protection of (their) people against fraud and deception in the sale of food

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products’ at retail markets within their borders.” Flo. Lime & Avocado Growers, Inc.

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v. Paul, 373 U.S. 132, 144 (1963) (collecting cases). “Parties seeking to invalidate a

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state law based on preemption ‘bear the considerable burden of overcoming the

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starting presumption that Congress does not intend to supplant state law.’” Stengel v.

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Medtronic, 704 F.3d 1224, 1227–28 (9th Cir. 2013) (en banc) (quoting De Buono v.

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NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 806, 814 (1997)). They also bear

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the burden of proof. Fifth Third Bank v. CSX Corp., 415 F.3d 741, 745 (7th Cir.

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2005).

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The Court starts by addressing Buckman Company v. Plaintiffs’ Legal

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Committee, which held that a plaintiff’s state-law tort claims, relying on standards set

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forth in the FDCA, as amended by the Medical Device Amendments of 1976

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(“MDA”), were preempted. 531 U.S. 341, 343 (2001). Under 21 U.S.C. section

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337(a) of the FDCA—the same section at issue here—all proceedings to enforce FDA

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regulations “shall be by and in the name of the United States.” “The FDCA leaves no

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doubt that it is the Federal Government rather than private litigants who are authorized

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to file suit for noncompliance” with the provisions of the FDCA. Buckman, 531 U.S.

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at 349 n.7.

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In Buckman, the plaintiffs premised the defendant’s liability on the defendant’s

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allegedly fraudulent statements to the FDA, which resulted in approval of a medical

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device that injured plaintiffs. Id. at 343. In finding implied preemption, the Supreme

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Court explained that the “conflict stem[med] from the fact that the federal statutory

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scheme amply empowers the FDA to punish and deter fraud against the

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Administration, and that this authority is used by the Administration to achieve a

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somewhat delicate balance of statutory objectives.” Id. at 348. Under the FDCA, the

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FDA may investigate suspected fraud, and may respond by using a variety of legal

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measures. Id. at 349 (explaining the FDA may respond by seeking injunctive relief,

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seizing the medical device, or pursuing criminal prosecutions). This flexibility of

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enforcement mechanisms, the Supreme Court reasoned, allowed the FDA “to make a

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measured response to suspected fraud upon the Administration[,]” and was a “critical

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component of the statutory and regulatory framework under which the FDA pursues

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difficult (and often competing) objectives.” Id. In light of this, the Supreme Court

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held that the plaintiffs’ claims were impliedly preempted because state-law fraud-on-

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the-FDA claims would “exert an extraneous pull on the scheme established by

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Congress.” Id. at 353. Plaintiffs argue here that their claims in the SAC are based on

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an independent, but parallel state-law duty, and thus do not interfere with Congress’s

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mandate that the United States is the only party able to enforce the FDCA. (Opp’n 7–

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9.)

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Plaintiffs allege that Trader Joe’s misled its customers regarding the amount of tuna in

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its product, not the FDA. In this sense, the state-law tort claims are not focused on

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policing Trader Joe’s representations to the FDA, which Congress and the Supreme

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Court determined should be left to the FDA. Buckman, 531 U.S. at 353. Rather,

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Plaintiffs’ claims seek to hold Trader Joe’s accountable for its conduct directed at

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consumers.

Plaintiffs’ allegations here are also distinguishable from Buckman because

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In prior briefing and now, Plaintiffs cite Hendricks v. StarKist Co., 30 F. Supp.

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3d 917 (N.D. Cal. 2014), and argue that the Northern District considered the “exact

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same argument for preemption,” and rejected it. (Opp’n 4.) In its prior Order, the

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Court rejected StarKist because, unlike in StarKist where the plaintiff’s claims were

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almost identical to the FDCA’s requirements, Plaintiffs’ claims in the FAC did not

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“mirror the relevant sections of the FDCA.” (June 2, 2017 Order 7, ECF No. 54.)

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Now, Plaintiffs bring claims pursuant to California’s Sherman Law, which

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incorporates by reference the requirements of the FDCA, as it must, lest it be

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expressly preempted by 21 U.S.C. § 343–1(a), the FDCA’s express preemption clause.

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See Perez v. Nidek Co., 711 F.3d 1109, 1120 (9th Cir. 2013) (addressing express

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preemption under analogous statute in the MDA, 21 U.S.C. § 360k(a)).

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In Stengel v. Medtronic, Inc., the Ninth Circuit held that the FDCA “does not

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preempt a state-law claim for violating a state-law duty that parallels a federal-law

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duty under the [FDCA].” 704 F.3d at 1228; see also Wyeth, 555 U.S. at 568–69

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(holding state-law claims sounding in negligence and strict product liability were not

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preempted because the regulatory scheme did not exhibit Congress’s intent to preempt

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state remedies). The Court’s analysis then turns on whether California’s Sherman

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Law, or the New York claims, provide “a state-law duty that parallels a federal-law

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duty under the [FDCA].” Stengel, 704 F.3d at 1228; (SAC ¶¶ 8–9.)

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California’s Sherman Law Establishes a Parallel State-Law Duty

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California’s Sherman Law provides that “[a]ll food labeling regulations and any

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amendments to those regulations adopted pursuant to the federal act…or adopted on

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or after [January 1, 1993] shall be the food labeling regulations of this state.” Cal.

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Health & Safety Code § 110100. The Sherman Law also prohibits the misbranding of

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food, and states that “[a]ny food is misbranded if its labeling is false or misleading in

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any particular.” Id. § 110660. These regulations are not expressly preempted by

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Section 343–1(a) of the FDCA because they incorporate the FDCA’s requirements

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wholesale, and do not impose any additional obligations. Samet v. Procter & Gamble

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Co., No. 5:12-CV-01891 PSG, 2013 WL 3124647, at *5–6 (N.D. Cal. June 18, 2013).

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Here, Plaintiffs allege Trader Joe’s violated the Sherman Law when it under

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filled cans of tuna because the Sherman Law incorporates by reference the FDCA

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regulations, which include the Pressed Weight Standard. (SAC ¶ 9; Opp’n 7–8.)

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Trader Joe’s claims that this is just an end-run around the FDCA’s enforcement clause,

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which limits enforcement of the FDCA, and thus the Pressed Weight Standard, to

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actions in the name of the United States. (Reply 2.) Trader Joe’s also aptly points out

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that many of the cases Plaintiffs cite, address express preemption, not implied

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preemption. (Reply 2;) see, e.g., Ivie v. Kraft Foods Glob., Inc., No. C-12-02554-

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RMW, 2013 WL 685372, at *8 (N.D. Cal. Feb. 25, 2013) (“Defendants also argue that

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the plaintiff’s claims are preempted under [section 343–1], the FDCA’s express

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preemption provision.”); Khasin v. Hershey Co., No.: 5:12-CV-01862 EJD, 2012 WL

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5471153, at *4 (N.D. Cal. Nov. 9, 2012) (“Defendant argues that [section 337(a)]

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explicitly prevents Plaintiff from bringing forth this cause of action.”). Despite the

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lack of clarity in Plaintiffs’ papers regarding this distinction, the Court still finds that

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Plaintiffs’ claims are not impliedly preempted because they are predicated on state-law

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duties that parallel the FDCA requirements.

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We must ask whether Plaintiffs would have a claim if the Sherman Law

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specifically set forth the Pressed Weight Standard, instead of incorporating the FDCA

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requirements by reference. If Plaintiffs would have a claim based on state-law in that

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scenario, then Plaintiffs’ claims are predicated on an independent state-law violation

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that parallels a federal duty. In that instance, Plaintiffs would not be relying on the

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FDCA, but rather the standard set forth in California’s Sherman Law. The fact that the

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California law does not specifically set forth the Pressed Weight Standard results from

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consideration of practicalities. If California were required to update its statutes every

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time the federal government changed a standard, it would constantly have statutes

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stating standards that did not mirror the federal scheme, which would then be

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expressly preempted by Section 343–1(a). See Samet, 2013 WL 3124647, at *5–6.

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The Ninth Circuit has held that states may provide its citizens a private right of action

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even where the federal scheme does not, which is what California has done here.

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Stengel, 704 F.3d at 1233; In re Farm Raised Salmon Cases, 42 Cal. 4th 1077 (2008)

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(analyzing the interaction between the FDCA and California’s Sherman Laws and

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holding Plaintiffs’ claims as actions “based on the violation of state law—albeit state

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law that is, in compliance with section 343–1, identical to FDCA provisions.”).

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Trader Joe’s anticipated that Plaintiffs would rely on Farm Raised Salmon

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Cases to establish that the Sherman Law provides an independent state-law duty.

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(Mot. 7.) Trader Joe’s argues that Farm Raised Salmon Cases is distinguishable

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because the “claims would have existed in the absence of the FDCA and did not rely

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on a federal regulation that the FDA was actively reevaluating.” (Id.) The plaintiffs

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in Farm Raised Salmon Cases relied on standards set forth in the FDCA and the

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Nutrition Labeling and Education Act of 1990, and brought claims pursuant to

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California’s Sherman Law, UCL, CLRA, and FAL. Farm Raised Salmon Cases, 42

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Cal.4th at 1084–86. There are no substantive differences in Plaintiffs’ reliance on the

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FDCA via California’s Sherman Law here, and the arguments in Farm Raised Salmon

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Cases, where the California Supreme Court established California’s desire to provide

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its citizens with an independent right of action. Id. at 1090. In both cases, the

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plaintiffs allege a violation of a state-law duty that is parallel to, but independent of,

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the requirements of the FDCA. See Stengel, 704 F.3d at 1228. This combined with

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the presumption against preemption in areas historically governed by the states, leads

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the Court to conclude Plaintiffs’ claims in the SAC are not impliedly preempted.

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Vassigh v. Bai Brands LLC, Case No. 14–cv–05127–HSG, 2015 WL 4238886 (N.D.

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Cal. July 13, 2015) (collecting cases).

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2.

New York Law Does Not Provide an Independent, Parallel State-Law
Duty

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Trader Joe’s argues the New York claims should be preempted because

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California’s Sherman Law does not apply to sales that occurred outside the state.

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(Mot. 8–10.) Plaintiffs do not argue that the Sherman Law applies to the New York

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claims.

Like California, New York may provide state-law common law and/or

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statutory duties that establish a private right of action that is parallel to, but

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independent of, the requirements of the FDCA. Stengel, 704 F.3d at 1228. Whether

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New York has done so, is subject to debate among the courts. Compare Morelli v.

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Weider Nutrition Grp., Inc., 275 A.D.2d 607, 607–08 (N.Y. Sup. 2000) (holding

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claims under New York’s General Business Laws sections 349 and 350 allegedly

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seeking to enforce FDCA regulations were not preempted by the FDCA’s enforcement

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clause), with Verzani v. Costco Wholesale Corp., No. 09 CIV 2117 CM, 2010 WL

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3911499, at *3 (S.D.N.Y. Sept. 28, 2010), aff’d, 432 Fed. App’x 29 (2d Cir. 2011)

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(“[Plaintiff’s] persistent allegations that Costco’s labeling of the Shrimp Tray violates

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the FDCA[‘s]…regulations on the labeling of ‘shrimp cocktails’ indicates that his true

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purpose is to privately enforce alleged violations of the FDCA, rather than to bring a

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[state-law] claim for unfair and deceptive business practices.”).

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In Morelli v. Weider Nutrition Group, Inc., the defendants argued that 21 U.S.C.

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§ 337—the same section at issue here—preempted claims under New York’s General

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Business Law sections 349 and 350. Morelli, 275 A.D.2d at 607–08. The plaintiffs’

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claims were based on the allegedly false and deceptive labeling of defendant’s food

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products, as governed by the Federal Nutritional Labeling and Education Act, 21

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U.S.C. § 343, et seq. Id. In holding the claims were not preempted, the court

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reasoned that Congress did not “intend[] to limit a State's otherwise undoubted power

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to afford consumers within its borders a statutory remedy for injuries caused by

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knowingly deceptive and misleading business practices where, as here, such remedy

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in no way interferes with the Federal prerogative to promulgate and enforce uniform

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food labeling standards.” Id.; see also Goldemberg v. Johnson & Johnson Consumer

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Cos., 8 F. Supp. 3d 467, 475–76 (S.D.N.Y. 2014) (addressing express preemption

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provision under FDCA, and holding claims under General Business Law section 349,

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and parallel common law claims were not preempted).

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On the other hand, in New York and many other states, courts have concluded

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that where a state has not adopted statutes that expressly mirror the FDCA, like

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California’s Sherman Law, a plaintiff’s claim that relies on the defendant’s failure to

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comply with federal regulations is impliedly preempted.

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3911499, at *3; Henry v. Gerber Prods. Co., No.: 3:15-cv-02201-HZ, 2016 WL

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1589900, at *9 (D. Or. Apr. 18, 2016) (“Oregon, however, has not adopted such a

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statutory scheme, and thus Henry’s argument that the Puff’s labels do not comply with

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federal requirements is precluded by the FDCA”); Rikos v. Procter & Gamble Co.,

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782 F. Supp. 2d 522, 538 n. 26 (S.D. Ohio 2011) (“Courts have interpreted section

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337(a) as prohibiting private rights of action under the FDCA and dismissed state law

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claims that seek to enforce the FDCA or its regulations”); Parker v. Stryker Corp., 584

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F. Supp. 2d 1298, 1301 (D. Colo. 2008) (“[T]o the extent that these claims are merely

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derivative of plaintiff’s state law [sic] claims, they are not saved merely by being

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recast as violations of the federal adulteration and misbranding statutes.”).

See Verzani, 2010 WL

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The Court finds the reasoning of its sister courts precluding enforcement of the

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FDCA regulations persuasive. Where, like here, a plaintiff’s true purpose is to enforce

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federal regulations, masquerading as a state-law claim where the state has not adopted

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a parallel statutory scheme is not sufficient to escape preemption. Thus, as discussed

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in the prior Order, because Plaintiffs’ claims here based on New York common and

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statutory law all depend on the Pressed Weight Standard, they are impliedly

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preempted. Plaintiffs did not amend their New York claims in the SAC, and the Court

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finds that providing another opportunity for leave would be futile, and thus GRANTS

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Trader Joe’s Motion as to Plaintiffs’ claims for violations of New York General

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Business Law sections 349 (Count IV) and 350 (Count IV), and Magier’s common

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law claims based on New York law on behalf of herself, and the New York Subclass.

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B.

Primary Jurisdiction Doctrine

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Trader Joe’s argues the Court should stay this action pending the FDA’s review

28

of the Pressed Weight Standard, and Trader Joe’s application for a TMP. (Mot. 10–

12

1

12.) Plaintiffs principally argue that a stay is not appropriate because: 1) the FDA has

2

been actively evaluating this standard for many years; 2) Plaintiffs’ claims are based

3

on state law, not the FDCA; and 3) Plaintiffs’ claims predate the FDA’s potential

4

issuance of a TMP to Trader Joe’s in the future, and thus a TMP would not absolve

5

Trader Joe’s of liability for its past acts. (Opp’n 10–11.)

6

“The primary jurisdiction doctrine allows courts to stay proceedings or to

7

dismiss a complaint without prejudice pending the resolution of an issue within the

8

special competence of an administrative agency.” Clark v. Time Warner Cable, 523

9

F.3d 1110, 1114 (9th Cir. 2008). The doctrine “is committed to the sound discretion

10

of the court when ‘protection of the integrity of a regulatory scheme dictates

11

preliminary resort to the agency which administers the scheme.’”

12

Semiconductor Co. v. Microchip Tech. Inc., 307 F.3d 775, 781 (9th Cir. 2002)

13

(quoting United States v. Gen. Dynamics Corp., 828 F.2d 1356, 1362 (9th Cir. 1987)).

14

Courts apply the following factors in determining whether to apply this doctrine:

15

“(1) the need to resolve an issue that (2) has been placed by Congress within the

16

jurisdiction of an administrative body having regulatory authority (3) pursuant to a

17

statute that subjects an industry or activity to a comprehensive regulatory authority

18

that (4) requires expertise or uniformity in administration.” Id.

Syntek

19

The Court declines to apply the primary jurisdiction doctrine here. While

20

Congress has placed food regulation in the hands of the FDA, the core issue is

21

“whether a reasonable consumer would be misled by [Trader Joe’s] marketing, which

22

the district courts have reasonably concluded they are competent to address in similar

23

cases.”

24

Chacanaca v. Quaker Oats Co., 752 F. Supp. 2d 1111, 1224 (N.D. Cal. 2010)).

25

Further, the United States Tuna Foundation submitted its first Citizen Petition

26

requesting an evaluation of the Pressed Weight Standard in 1994—more than 20 years

27

ago. (RJN, Ex. 3, ECF No. 62-6.) The Major Tuna Producers filed their Citizen

28

Petition in September 2015 (RJN Ex. 9, ECF No. 62-12), and Trader Joe’s submitted

Reid v. Johnson & Johnson, 780 F.3d 952, 967 (9th Cir. 2015) (citing

13

1

its application to participate in the TMP in February 2017. (RJN, Ex. 8, ECF No. 62-

2

11.) At this rate, it is difficult to tell when the FDA will make a determination as to

3

the validity of the Pressed Weight Standard, let alone whether it will change.

4

Accordingly, the Court chooses not to invoke the primary jurisdiction doctrine.

5

C.

Equitable Abstention
Trader Joe’s also argues that Plaintiffs’ UCL and FAL claims should be

6
7

dismissed under equitable abstention principles.

8

13

whether addressing a plaintiff’s claim:
requires ‘determining complex economic policy, which is best
handled by the legislature or an administrative agency;’ (2) ‘granting
injunctive relief would be unnecessarily burdensome for the trial court
to monitor and enforce given the availability of more effective means
of redress;’ or (3) ‘federal enforcement of the subject law would be
more orderly, more effectual, less burdensome to the affected
interests.’

14

Wehlage v. EmpRes Healthcare, Inc., 791 F. Supp. 2d 774, 784–85 (N.D. Cal. 2011)

15

(quoting Alvarado v. Selma Convalescent Hosp., 153 Cal. App. 4th 1292, 1298

16

(2007)). Here, Plaintiffs’ claims do not involve consideration of complex economic

17

policy. Instead, they depend on whether a reasonable consumer would be misled by

18

Trader Joe’s labeling.

19

discretion under the primary jurisdiction doctrine, the Court declines to exercise its

20

discretion under equitable abstention principles.

21

D.

9
10
11
12

(Mot. 12–14.)

Courts consider

For the same reasons the Court declines to exercise its

Failure to State a Claim: Consumer Protection Statute Claims2

22

Reyes alleges violations of the UCL, the FAL, and the CLRA. (SAC ¶¶ 73–

23

94.) Trader Joe’s argues that these claims should be dismissed because Plaintiffs fail

24

to allege facts showing that a reasonable consumer would be deceived or misled by

25

the labeling on Trader Joe’s canned tuna products. (Mot. 15–19.)

26
27
28

2

Because the Court finds Plaintiffs’ New York claims are impliedly preempted, it does not address
Trader Joe’s arguments regarding the substance of the New York claims.
14

1

1.

2

California’s UCL prohibits “any unlawful, unfair or fraudulent business act or

3

practice.” Cal. Bus. & Prof. Code § 17200. “By proscribing ‘any unlawful’ business

4

practice, ‘section 17200 “borrows” violations of other laws and treats them as

5

unlawful practices’ that the unfair competition law makes independently actionable.”

6

Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal. 4th 163, 180

7

(1999). The “unlawful” prong is separate from the “unfair” and “fraudulent” prongs

8

of the UCL, making unlawful conduct independently actionable even if it is not unfair

9

or fraudulent. Id. Reyes asserts violations under all three prongs of the UCL. (SAC

10

“Unlawful” Prong of UCL

¶¶ 84–86.)

11

Trader Joe’s alleges that Reyes’ claims pursuant to the “unlawful” prong of the

12

UCL should fail because she does not allege facts showing a reasonable consumer

13

would be deceived or misled by Trader Joe’s labeling. (Mot. 15–19.) However, the

14

reasonable consumer test does not apply to claims brought under the unlawful prong

15

of the UCL. See Daro v. Superior Court, 151 Cal. App. 4th 1079, 1099 n.9 (2007);

16

Gitson v. Trader Joe’s Co., No. 13-1333, 2013 WL 5513711, at *6 n.5 (N.D. Cal. Oct.

17

4, 2013). To state a claim under the unlawful prong of the UCL, a plaintiff only needs

18

to sufficiently plead (1) a predicate violation, MacDonald v. Ford Motor Co., 37 F.

19

Supp. 3d 1087, 1097 (N.D. Cal. 2014); see also People ex rel. Bill Lockyer v. Fremont

20

Life Ins. Co., 104 Cal. App. 4th 508, 515 (2002) (“[V]irtually any state, federal or

21

local law can serve as the predicate for an action under section 17200”), and (2) an

22

accompanying economic injury caused by that violation. Kwikset Corp. v. Superior

23

Court, 51 Cal. 4th 310, 329 (2011).

24

Reyes premises all of her “unlawful” prong claims on the contention that Trader

25

Joe’s tuna is mislabeled under California’s Sherman Law, which incorporates the

26

FDCA regulations. (SAC ¶¶ 8–9.) The Sherman Law and CLRA each provide a

27

predicate violation for purposes of the “unlawful” prong of the UCL. See, e.g.,

28

Kowalsky v. Hewlett–Packard Co., 771 F.Supp.2d 1156, 1162 (N.D. Cal. 2011)

15

1

(holding UCL unlawful prong dependent upon plaintiff's CLRA claim). Reyes also

2

alleges she lost “money or property as a result of Defendants’ UCL violations.” (SAC

3

¶ 87.) This is sufficient to state a claim. Accordingly, the Court DENIES Trader

4

Joe’s Motion as to Reyes’s claim pursuant to the “unlawful prong” of the UCL.

5

2.

The Reasonable Consumer Standard

6

False advertising claims under California’s FAL, the CLRA, and the fraudulent

7

and unfair prongs of the UCL are governed by the reasonable consumer standard.

8

Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008); Kasky v. Nike, Inc.,

9

27 Cal. 4th 939, 951 (2002); Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496,

10

504 (2003). Under the reasonable consumer standard, a plaintiff must show that

11

members of the public are likely to be deceived by the defendant’s representations.

12

Williams, 552 F.3d at 938 (“The California Supreme Court has recognized that these

13

laws prohibit not only advertising which is false, but also advertising which[,]

14

although true, is either actually misleading or which has a capacity, likelihood or

15

tendency to deceive or confuse the public.” (internal quotation marks omitted)). A

16

likelihood of deception means that “it is probable that a significant portion of the

17

general consuming public or of targeted consumers, acting reasonably in the

18

circumstances, could be misled.” Lavie, 105 Cal. App. 4th at 508.

19

Plaintiffs advance several theories of how a reasonable consumer would be

20

misled: 1) that consumers thought the amount of tuna in a 5-ounce can would be

21

“adequate;” 2) that consumers would be misled because Trader Joe’s tuna does not

22

say that its product is “Below Standard in Fill,” despite the fact that it does not comply

23

with the Pressed Weight Standard; and 3) that consumers believed they were

24

purchasing a product that was legal in the United States, when, in fact, it was not.

25

(Opp’n 20; SAC ¶¶ 8, 23, 29, 34, 45, 49, 56, 77.)

26

“Defendants’ conduct also runs contrary to the standard practices and procedures of

27

other tuna manufacturers.” (SAC ¶ 10.)

28

16

Plaintiffs also state that

1

With regard to the allegation regarding the “standard practices and procedures

2

of other tuna manufacturers,” the Court finds that this does not sufficiently set forth

3

facts to make their claim plausible under Rule 8. Plaintiffs do not describe any of the

4

alleged practices and procedures of other tuna manufacturers that would render Trader

5

Joe’s practices misleading to a reasonable consumer. Further, a significant portion of

6

the parties’ briefing is dedicated to describing the practices of the Major Tuna

7

Producers, who, because of the TMP, do not have to identify their tuna cans as being

8

“Below Standard in Fill.” Thus, consumers in the market are presented with at least

9

three other tuna manufacturers whose “standard practices and procedures” are to do

10

exactly what Trader Joe’s does. Thus, this allegation does not set forth facts sufficient

11

for the Court to find it plausible that a reasonable consumer would be misled on this

12

basis. Plaintiffs have leave to amend this claim.

13

At the hearing on Trader Joe’s Motion to Dismiss Plaintiffs’ FAC, counsel

14

explained that the potential for confusion, as it relates to the Pressed Weight Standard,

15

occurs because there may be varying amounts of water or oil in the can, in addition to

16

the tuna. The labels of all of the cans at issue here state directly on the front of the

17

label in conspicuous text the various species of tuna, and phrases such as, “in Olive

18

Oil,” or “in Water.” (RJN, Ex. 1, ECF No. 62-11.) Given that a reasonable consumer

19

must consider his or her preference for water or olive oil in choosing a product to

20

purchase, the Court finds it hard to imagine that such a consumer, acting reasonably,

21

would not know that the contents of the can they are purchasing includes fish and

22

water or oil. See Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016) (holding that

23

it is not plausible that a reasonable consumer would not understand that lip balm

24

contains additional product in the tube, once the screw mechanism is flush with the

25

tube).

26

Plaintiffs point to StarKist, which reasoned that it is “[t]he appearance of the

27

can itself, not its label, [that] Plaintiff alleges to be misleading.” StarKist, 30 F. Supp.

28

3d at 931–22. A reasonable consumer, while appreciating that the tuna can would

17

1

contain tuna and water or oil, may be misled if the amount of water or oil in the can is

2

excessive. This, Plaintiffs argue, is the reason for the Pressed Weight Standard.

3

Trader Joe’s contends that to adequately allege that the can is misleading Plaintiffs

4

need to set forth in detail the process Plaintiffs used to test the tuna pursuant to the

5

Pressed Weight Standard, which they did not. (Mot. 15.) Plaintiffs allege that,

6

because Trader Joe’s is not a party to the TMP, it is required to display text on its can

7

stating that the cans were “Below Standard in Fill,” which it did not. 21 C.F.R.

8

§ 161.190(c)(4); 21 C.F.R. § 130.14(b); (SAC ¶ 8.) Plaintiffs also allege that they

9

thought the tuna they were purchasing was legal for sale in the United States, and that

10

had they known that it was not legal, i.e. below the Pressed Weight Standard, they

11

would not have purchased it. (SAC ¶¶ 8, 23, 29, 34, 45, 49, 52, 56, 77.) It is plausible

12

that a reasonable consumer would expect to purchase a legal product, and could be

13

misled under the facts alleged by Plaintiffs.3

14

Plaintiffs, the Court finds that it is also plausible that a reasonable consumer would

15

expect that the tuna they purchase complies with labeling requirements that are meant

16

to inform consumers of the amount of tuna and water or oil in an otherwise opaque

17

can.

Taking all inferences in favor of

18

To the extent Trader Joe’s argues that a reasonable consumer would not have

19

been aware of the food regulations that Trader Joe’s allegedly violated, Courts in this

20

district have rejected similar arguments at the motion to dismiss stage. See, e.g.,

21

Khasin, 2012 WL 5471153, at *7 (rejecting defense argument that it is implausible

22

that reasonable consumers would be aware of food labeling regulations); Jones v.

23

ConAgra Foods, Inc., 912 F.Supp.2d 889, 901 (N.D. Cal. 2012) (same). The Court

24
25
26
27
28

3

Citing Brazil v. Dole Packaged Foods, LLC, 660 Fed. App’x 531, 534 (9th Cir. 2016), Trader Joe’s
argues, in a foot note, that the Ninth Circuit has already “rejected this exact theory of liability…..”
(Mot. 22 n.11.) However, Trader Joe’s conveniently omits the portion of the quote that explains that
the plaintiff there suggested that defendant’s “statements about certain fruit products subject[ed] him
to risk of fine or prosecution if he [wa]s found in possession of that fruit product.” Id. at 534
(emphasis added). Here, Plaintiffs’ allegations focus on their expectation to purchase a legal
product, not a fear that they will be prosecuted criminally. (SAC ¶ 29.)
18

1

must take the allegations of the complaint as true, and based on Plaintiffs’ allegations

2

in the SAC, the Court finds that this is not one of the “rare situation[s] in which

3

granting a motion to dismiss is appropriate.” Williams, 552 F.3d at 939.

4

3.

The FDA’s Actions Are Not Dispositive

5

Trader Joe’s urges the Court to consider the FDA’s findings regarding the

6

Pressed Weight Standard in evaluating Plaintiffs’ claims against the reasonable

7

consumer standard. Rojas v. General Mills, Inc., No. 12-cv-05099-WHO, 2013 WL

8

5568389, at *4–5 (N.D. Cal. Oct. 9, 2013) (noting the FDA’s views are relevant to the

9

issue of whether a label misleading, but also noting that they are not the sole or

10

dispositive factor). Trader Joe’s argues that the FDA determined their label cannot be

11

misleading because the Major Tuna Producers, pursuant to the TMP, are not required

12

to state “Below Standard in Fill” on their labels, even though they are not operating

13

under the Pressed Weight Standard. (Id.; RJN, Ex. 7, ECF No. 62-10.) Plaintiffs

14

argue that the FDA’s acceptance of the Major Tuna Producer’s labels has no bearing

15

on Trader Joe’s because the TMP does not apply to Trader Joe’s. In any event, the

16

TMP is not dispositive because it merely allows the tuna producers to conduct

17

“market testing.” (Opp’n 18); 79 Fed. Reg. 35362. Further, Plaintiffs argue that, to

18

the extent that Trader Joe’s is eventually included in the TMP, it still would not

19

remedy the violations that occurred during the periods alleged in the SAC, and before

20

Trader Joe’s was included in the TMP. The Court finds Plaintiffs’ reasoning as to the

21

FDA’s actions persuasive. While the Court considers the FDA action in its evaluation

22

of the reasonable consumer standard, the TMP does not apply to Trader Joe’s, and

23

even if it were eventually to apply to Trader Joe’s, it would not have been in effect

24

during the time periods alleged in the SAC. On its face, the TMP also only authorizes

25

“market testing” of the current label. 79 Fed. Reg. 35362. There is no evidence of the

26

results of the testing other than the fact that the FDA extended the TMP indefinitely.

27

81 Fed. Reg. 11813 (“We find that it is in the interest of consumers to extend the

28

19

1

permit for the market testing of canned tuna to gain additional information on

2

consumer expectations and acceptance.”). This is not enough to tip the scales.

3

4.

4

Because Plaintiffs’ claims sound in fraud, they must also meet the particularity

5

requirements under Federal Rule of Civil Procedure 9(b). The Ninth Circuit has

6

specifically held that Rule 9(b)’s heightened pleading standard applies to claims for

7

violation of the UCL, FAL, or CLRA that are grounded in fraud. Vess, 317 F.3d at

8

1103–06; Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009). To satisfy

9

Rule 9(b), “[a]verments of fraud must be accompanied by ‘the who, what, when,

10

Plaintiffs Sufficiently Allege a Misrepresentation

where, and how’ of the misconduct charged.” Vess, 317 F.3d at 1106.

11

Trader Joe’s argues that Plaintiffs fail to sufficiently allege a misrepresentation

12

because the statements regarding drained and net weight on Trader Joe’s cans of tuna

13

are accurate. (Mot. 14–15.) Plaintiffs respond that the misrepresentation stems from

14

the can itself, not the drained and net weight, and that Trader Joe’s failed to include

15

“Below Standard in Fill” on the can, as it was required to do pursuant to the FDCA

16

regulations. (Opp’n 13–17; SAC ¶¶ 1–14, 30, 31, 52, 59, 78, 87.) In the SAC,

17

Plaintiffs allege when and where they purchased the tuna, and that they relied on

18

Trader Joe’s express and implied warranties that the cans of tuna “contained an

19

adequate amount of tuna for a 5-ounce can and that Trader Joe’s Tuna is legal for sale

20

in the United States.”

21

substantially more based on these representations. (Id.) Plaintiffs sufficiently set

22

forth the who, what, when, where, and how of Trader Joe’s allegedly fraudulent

23

conduct. Vess, 317 F.3d at 1106; StarKist, 30 F. Supp. 3d at 934 (holding similar

24

allegations met the pleading standard for fraud). Accordingly, the Court DENIES

25

Trader Joe’s Motion with respect to Plaintiffs’ California claims for fraud (Count VII)

26

and violation of the CLRA (Count VIII), UCL (Count IX), and FAL (Count X).

27

//

28

//

(SAC ¶¶ 45, 63, 77, 91.)

20

They also claim they paid

1

E.

Negligent Misrepresentation

2

In California, to plead negligent misrepresentation, Plaintiffs must allege: “(1) a

3

misrepresentation of a past or existing material fact, (2) made without reasonable

4

ground for believing it to be true, (3) made with the intent to induce another's reliance

5

on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5)

6

resulting damage.” Ragland v. U.S. Bank Nat. Ass’n, 209 Cal. App. 4th 182, 196–97

7

(2012).

8

Trader Joe’s argues that the economic loss doctrine precludes Plaintiffs’ claim

9

for negligent misrepresentation under California. (Mot. 19–20.) Plaintiffs argue that

10

California classifies negligent misrepresentation as a type of fraud, and thus economic

11

loss is recoverable.

12

plaintiff's tort recovery of economic damages is barred unless such damages are

13

accompanied by some form of harm to person or property, or the action falls under an

14

exception.” Strumlauf v. Starbucks Corp., 192 F. Supp. 3d 1025, 1035 (N.D. Cal.

15

2016) (citing N. Am. Chem. Co. v. Super. Ct., 59 Cal. App. 4th 764, 777 (1997).

(Opp’n 21.)

“The economic loss doctrine provides that a

16

Plaintiffs cite Robinson Helicopter Co. v. Dana Corp., 34 Cal. 4th 979 (2004)

17

for the proposition that California law permits negligent misrepresentation claims,

18

despite only alleging economic loss. (Opp’n 21.) As described in Strumlauf, “[i]n

19

Robinson, the California Supreme Court distinguished between two acts by the

20

defendant, finding that one act was a breach of contract, and the other was fraudulent

21

conduct—independent of the breach—that put the plaintiff's physical safety at risk.”

22

Strumlauf, 192 F. Supp. 3d at 1035 (citing Robinson, 34 Cal. 4th at 991)). In holding

23

that the economic loss doctrine did not bar plaintiff’s claims, the Robinson court

24

emphasized that its holding was “narrow in scope and limited to a defendant’s

25

affirmative misrepresentations on which a plaintiff relies and which expose a plaintiff

26

to liability for personal damages independent of plaintiff’s economic loss.” Robinson,

27

34 Cal. 4th at 993. Plaintiffs make no such allegations here, and the Court finds

28

Plaintiffs’ claim for negligent misrepresentation barred by the economic loss rule.

21

1

Because the Court does not see how this claim could be remedied if Plaintiffs had

2

leave to amend, the Court GRANTS Trader Joe’s Motion as to this claim without

3

leave to amend.

4

F.

5

Breach of Express & Implied Warranties
1.

Pre-Suit Notice

6

“The buyer must, within a reasonable time after he or she discovers or should

7

have discovered any breach, notify the seller of breach or be barred from any

8

remedy.” Cal. Com. Code §2607(3)(A). Trader Joe’s argues that Plaintiffs failed to

9

provide reasonable pre-suit notice of their breach of express warranty claims, as

10

required under California law. (Mot. 21.)

11

First, Plaintiffs claim that they were not required to provide pre-suit notice

12

because they are alleging claims against Trader Joe’s as a manufacturer. (Opp’n 22.)

13

In California, where a plaintiff brings claims against a defendant for breach of express

14

warranty in its capacity as a manufacturer, not as a seller, the plaintiff is not required

15

to give pre-suit notice. Rosales v. FitFlop USA, LLC, 882 F. Supp. 2d 1168, 1178

16

(S.D. Cal. 2012) (citing Aaronson v. Vital Pharm., Inc., No. 09–CV–1333 W (CAB),

17

2010 WL 625337, at *6 (S.D. Cal. Feb. 17, 2010)). Plaintiffs allege claims against

18

Trader Joe’s in their capacity “as the designers, manufacturers, marketers, distributors,

19

and/or sellers” of the tuna. (SAC ¶ 29.) California courts have reasoned that notice is

20

not required to the manufacturer of a product because “it will not occur to [a buyer] to

21

give notice to one with whom he has had no dealings.” Greenman v. Yuba Power

22

Prods., Inc., 59 Cal. 2d 57, 61 (1963) (citations and quotations omitted). Here, there

23

is no reasonable interpretation of the SAC that would allow the Court to find it should

24

not have occurred to Plaintiffs to give notice to Trader Joe’s. Id. Plaintiffs were

25

required to give notice to Trader Joe’s because they allege they had direct dealings

26

with Trader Joe’s, as evidenced by the allegations that Plaintiffs purchased the tuna at

27

“a Trader Joe’s retail store.” (SAC ¶¶ 12–13;) see also Minkler v. Apple, Inc., 65 F.

28

Supp. 3d 810, 817 (N.D. Cal. 2014).

22

1

Plaintiffs claim that they provided adequate notice because they informed

2

Trader Joe’s “within days after learning of the breach.” (Opp’n 22.) Plaintiffs do not

3

allege this in the portion of the SAC setting forth their express warranty claim, nor do

4

they explain this argument in their Opposition. (SAC ¶¶ 27–31.) The Court interprets

5

this to mean that Plaintiffs notified Trader Joe’s within days after receiving the results

6

of NOAA’s testing pursuant to the Pressed Weight Standard. Plaintiffs allege that

7

they provided notice pursuant to the CLRA on December 21, 2015. (Id. ¶ 79, Ex A.4)

8

Plaintiffs’ demand letter provides that the “letter also serves as notice pursuant to

9

U.C.C. § 2-607(3)(a) concerning the breaches of express and implied warranties….”

10

(SAC, Ex. A.)

11

Trader Joe’s urges the Court to find that the notice was not reasonable as a matter

12

of law because Plaintiffs stopped purchasing Trader Joe’s tuna in 2013, and 2014—a

13

year and two years prior to giving notice, respectively. (Mot. 21.) The Court agrees

14

that Plaintiffs failed to give notice within a reasonable period as a matter of law. Ice

15

Bowl v. Spalding Sales Corp., 56 Cal. App. 2d 918, 921–22 (1943) (holding notice

16

untimely as a matter of law where given four months after the purchase of defective

17

skates).

18

To the extent Plaintiffs claim they needed the results from NOAA prior to

19

providing notice, at the very least, Plaintiffs’ claims based on the “standard practices

20

and procedures” of other tuna manufacturers should have been apparent to them when

21

they opened the cans of tuna. Yet, Plaintiffs waited more than a year before notifying

22

Trader Joe’s of the alleged breach of warranty. Accordingly, the Court GRANTS

23

Trader Joe’s Motion as to Plaintiffs’ breach of express warranty claims against Trader

24
25
26
27
28

4

The Court notes a discrepancy in the SAC that it treats as a typographical error. The demand letter
is dated December 21, 2015, whereas Paragraph 79, describing the demand letter, states Plaintiffs
gave notice on December 29, 2015.
23

1

Joe’s as a seller.5 The Court denies leave to amend because Plaintiffs could not

2

remedy this defect under any plausible set of facts.

3

2.

Breach of Implied Warranty of Merchantability

4

Trader Joe’s argues that Plaintiffs’ implied warranty claims should be dismissed

5

because the tuna was fit for consumption, and thus satisfied the implied warranty of

6

this food product. (Mot. 23.) Plaintiffs contend that they allege a claim because in

7

addition to a product being suitable for its intended use—to eat—the implied warranty

8

provides that the product is “adequately contained, packaged, and labeled as the

9

agreement may require” and “[c]onform[s] to the promises or affirmations of fact

10

made on the container or label if any.” Cal. Com. Code § 2314(2). Here, Plaintiffs

11

allege the packaging of Trader Joe’s tuna was inadequate because it was not

12

“consistent with an implied promise that they were adequately filled with tuna.”

13

StarKist, 30 F. Supp. 3d at 933; (SAC ¶ 35). In opposition, Trader Joe’s cites

14

Strumlauf v. Starbucks Corporation, 192 F. Supp. 3d 1025, 1032 (N.D. Cal. 2016) and

15

Red v. General Mills, Inc., Case No. 2:15-cv-02232-ODW(JPR), 2015 WL 9484398,

16

at *6 (C.D. Cal. Dec. 29, 2015), which are distinguishable because the allegations

17

there did not focus on the adequacy of the packaging of the product, but only on

18

whether a consumer could eat the product. Accordingly, the Court finds Plaintiffs

19

alleged sufficient facts to state a claim for breach of the implied warranty of

20

merchantability, and DENIES Trader Joe’s Motion as to this claim.

21

H.

UNJUST ENRICHMENT

22

“[I]n California, there is not a standalone cause of action for ‘unjust

23

enrichment,’ which is synonymous with ‘restitution.’” Astiana v. Hain Celestial Grp.,

24

Inc., 783 F.3d 753, 762 (9th Cir. 2015) (citing Durell v. Sharp Healthcare, 183 Cal.

25

App. 4th 1350, 1370 (2010) and Jogani v. Super. Ct., 165 Cal. App. 4th 901, 912

26

(2008)). However, courts construe such claims as an action in quasi-contract seeking

27

5

28

Trader Joe’s also argues that Plaintiffs fail to allege an express warranty. (Mot. 22.) However,
because Plaintiffs’ breach of express warranty claim fails for lack of notice, the Court does not
address this argument.
24

1

restitution. Id. (citing and quoting Rutherford Holdings, LLC v. Plaza Del Rey, 223

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Cal. App. 4th 221, 230 (2014)).

3

Trader Joe’s asserts that Plaintiffs’ claim for unjust enrichment should be

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dismissed because it is duplicative of the relief Plaintiffs seek in their other claims and

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because Plaintiffs failed to plead unjust or inequitable conduct. (Mot. 23–24.) Trader

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Joe’s cites Trainum v. Rockwell Collins, Inc., a New York case, for the proposition

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that courts may dismiss unjust enrichment claims as duplicative. (Id.;) 16-cv-7005

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(JSR), 2017 WL 2377988, at *20 (S.D.N.Y. May 31, 2017). However, this court is

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bound by Ninth Circuit precedent, and the Ninth Circuit specifically held that a

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duplicative cause of action is not grounds for dismissal. Astiana, 783 F.3d at 762–63

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(citing Federal Rule of Civil Procedure 8(d)(2), which allows parties to plead in the

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alternative).

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consumers as to the adequacy of the amount of tuna in its cans. (SAC ¶¶ 45–46.)

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Accordingly, the Court DENIES Trader Joe’s Motion on this ground.

Plaintiffs allege that Trader Joe’s acted unjustly when it misled

V.

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CONCLUSION

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For the reasons discussed above, the Court hereby GRANTS, IN PART, AND

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DENIES, IN PART, Trader Joe’s Motion to Dismiss. (ECF No. 62.) Plaintiffs are

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granted leave to amend, to the extent allowed by this Order. Should Plaintiffs wish to

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amend their complaint, they must file an amended complaint within 14 days of this

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Order, and in compliance with Central District Local Rule 15.

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October 3, 2017

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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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