Park et al v. Welch Foods Inc.

Filing 49

ORDER DENYING DEFENDANT'S MOTIONS TO STRIKE AND DISMISS by Magistrate Judge Paul Singh Grewal denying 39 Motion to Dismiss.(psglc3S, COURT STAFF) (Filed on 3/21/2014)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10
United States District Court
For the Northern District of California

8

SAN JOSE DIVISION

11

ELIZABETH PARK, et al.,

12
13
14
15
16
17

Plaintiffs,
v.
WELCH FOODS, INC.,
Defendant.

)
)
)
)
)
)
)
)
)

Case No. 5:12-cv-06449-PSG
ORDER DENYING DEFENDANT’S
MOTIONS TO STRIKE AND
DISMISS
(Re: Docket No. 39)

Defendant Welch Foods Inc.’s, second motion to strike and dismiss turns, in large part, on
the legal significance of a food labeling violation. Welch takes the position that because merely

18
possessing a mislabeled item would never actually result in criminal punishment, allegations that
19
20

its products create criminal liability are “scandalous” and must be struck from the complaint. It

21

further argues that the seventh cause of action must be dismissed because the misbranded goods

22

were still “fit for ordinary use,” and the complaint does not allege that the consumers intended to

23

resell them. Although each of these arguments may resonate with certain notions of common

24

sense, they do not resonate with the law as it now stands. Having considered the papers and the

25

arguments of counsel, the court DENIES these motions.

26
27
28
1

Case No. 5:12-cv-06449-PSG
ORDER DENYING DEFENDANT’S MOTIONS TO STRIKE AND DISMISS

I. BACKGROUND

1

Welch produces food and beverage products as the “food processing and marketing arm of

2
3

the National Grape Cooperative Association.” 1 Plaintiffs Elizabeth Park and Carolyn Otto

4

purchased Welch food products, but allege that they only did so because of misleading labels on

5

the products. 2 They initially filed a class action complaint on December 20, 2012. 3 Plaintiffs later

6
7
8
9

amended their complaint on two occasions before Welch brought its first motion to dismiss the
entire complaint. 4 The court granted that motion, but offered Plaintiffs leave to amend their
complaint again as to certain claims. 5 Plaintiffs took advantage of that that offer and filed their

United States District Court
For the Northern District of California

10

Third Amended Complaint on October 30, 2013. 6 Welch now moves to strike any allegations that

11

the purchase of its products may have subjected Plaintiffs to criminal liability and to dismiss

12

Plaintiffs’ claim for breach of the implied warranty of merchantability for failure to state a claim. 7

13
14

II. LEGAL STANDARDS
A.

15
16
17
18

Motion to Strike
Upon motion or on its own, the court may strike from a pleading “any redundant,

immaterial, impertinent, or scandalous matter.” 8 The purpose of Rule 12(f) is to “avoid the
expenditure of time and money that must arise from litigating spurious issues by dispensing with
those issues prior to trial.” 9 The court must view “the pleadings in the light most favorable to the

19
20

1

See id. at ¶¶ 28-29.

21

2

See id. at ¶¶ 26-27.

22

3

See id.

23

4

See Docket No. 17.

24

5

See Docket No. 34.

25

6

See Docket No. 36.

26

7

See Docket No. 39.

27

8

Fed. R. Civ. P. 12(f).

28

9

Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993)
2

Case No. 5:12-cv-06449-PSG
ORDER DENYING DEFENDANT’S MOTIONS TO STRIKE AND DISMISS

1

non-moving party, and the information will not be stricken unless it is evident that it has no bearing

2

upon the subject matter of the litigation.” 10 “Any doubt concerning the import of the allegations to

3

be stricken weighs in favor of denying the motion to strike.” 11

4

B.

5
6

Motion to Dismiss
A complaint must contain “a short and plain statement of the claim showing that the pleader

is entitled to relief.” 12 If a plaintiff fails to proffer “enough facts to state a claim to relief that is

7
8
9

plausible on its face,” the complaint may be dismissed for failure to state a claim upon which relief
may be granted. 13 A claim is facially plausible “when the pleaded factual content allows the court

United States District Court
For the Northern District of California

10

to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 14

11

Accordingly, under Fed. R. Civ. P. 12(b)(6), which tests the legal sufficiency of the claims alleged

12

in the complaint, dismissal “can be based on the lack of a cognizable legal theory or the absence of

13

sufficient facts alleged under a cognizable legal theory.” 15

14
On a motion to dismiss, the court must accept all material allegations in the complaint as
15
16
17

true and construe them in the light most favorable to the non-moving party. 16 The court’s review is
limited to the face of the complaint, materials incorporated into the complaint by reference, and

18
19
20
21
10

Cal. Dept. of Toxic Substances, 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002).

11

In re Walmart Stores, Inc. Wage & Hour Litig., 505 F. Supp. 2d 609, 614 (N.D. Cal. 2007).

12

Fed. R. Civ. P. 8(a)(2).

13

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

14

Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009).

15

Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

16

See Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1061 (9th Cir. 2008).

22
23
24
25
26
27
28

3

Case No. 5:12-cv-06449-PSG
ORDER DENYING DEFENDANT’S MOTIONS TO STRIKE AND DISMISS

1
2

matters of which the court may take judicial notice. 17 However, the court need not accept as true
allegations that are conclusory, unwarranted deductions of fact, or unreasonable inferences. 18
“Dismissal with prejudice and without leave to amend is not appropriate unless it is

3
4

clear . . . that the complaint could not be saved by amendment.” 19

5

III. DISCUSSION

6

No allegations in this complaint are sufficiently “redundant, immaterial, impertinent, or

7
8
9

scandalous” to justify striking them. The allegations regarding criminal liability, if proven by
evidence, are both true and relevant to the harm suffered by Plaintiffs. Welch may be right in

United States District Court
For the Northern District of California

10

bewailing the absurdity of a statute that imposes liability of “not more than one year in the county

11

jail or a fine of not more than one thousand dollars” 20 for any violation of any provision in any part

12

of the statute regulating misbranded food. The fact remains, however, that in California, “[i]t is

13
14

unlawful for any person to . . . hold or offer for sale any food that is misbranded,” and the statute
establishing that is subject to the punishments described above. 21 That means that Plaintiffs could,

15
16

in fact, be arrested and prosecuted for unlawful possession of misbranded goods. However

17

unlikely, it is plausible in the Twombly and Iqbal sense of the word to believe that Plaintiffs may

18

have acted differently if they were aware of a way to avoid it, thus making the liability relevant to

19

this case. This is true even if the contraband at issue is not illegal drugs, 22 but the label on a bottle

20

of delicious grape juice. Ironically, Welch’s argument that the allegations should be struck because

21

other consumers may opt not to buy Welch’s products if they know of the potential for criminal

22
17

23

See id. at 1061.

18

24

See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see also Twombly,
550 U.S. at 561 (“a wholly conclusory statement” of a claim will not survive a motion to dismiss).

25

19

Eminence Capital, LLC v. Asopeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

26

20

Cal. Health & Safety Code § 111825.

27

21

Cal. Health & Safety Code § 110760.

28

22

See In re: Steroid Prod. Cases, 282 Cal.App.4th 145, 157 (2006).
4

Case No. 5:12-cv-06449-PSG
ORDER DENYING DEFENDANT’S MOTIONS TO STRIKE AND DISMISS

1

liability speaks to precisely that point. In light of both their truth and relevance if supported by

2

evidence, Welch’s motion to strike any allegations regarding the imposition of criminal liability

3

must be DENIED.

4
5
6
7
8
9

Similarly, although Welch may take issue with the California Commercial Code, it states
clearly that “a warranty that the goods shall be merchantable is implied in a contract for their sale if
the seller is a merchant with respect to goods of that kind,” and that in order to be merchantable, a
product must “[c]onform to the promises or affirmations of fact made on the container or label.” 23
A product must also be “fit for the ordinary purposes for which such goods are used” in order to be

United States District Court
For the Northern District of California

10

merchantable, but Section 2314 provides a conjunctive list of requirements for merchantability, not

11

a disjunctive one; if a product fails to meet even one of the requirements set forth in that section, it

12

is not merchantable. 24 Here, Plaintiffs allege that Welch is a merchant with respect to food stuffs, 25

13

that Plaintiffs purchased food stuffs they had sold, 26 and that the food stuffs do not conform with

14

the promises and affirmations of fact made on the label. 27 If each of these allegations is proved up

15
16
17

through discovery, Plaintiffs will have established a breach of the warranty of merchantability. 28
Welch’s motion to dismiss the seventh cause of action therefore also is DENIED.

18
19
23

Cal. Com. Code § 2314.

24

See id.

25

See Docket No. 36 at ¶¶ 15-17.

26

See id. at ¶¶ 13-14.

27

See id.at ¶¶44-49.

20
21
22
23
24
28

25
26
27
28

The Ninth Circuit has recognized that ordinary, end-of-line consumers may bring claims for
breaches of the implied warranty of merchantability. See Weinstein v. Saturn Corp., 303 F. App'x
424, 426 (9th Cir. 2008). Because the breach of the warranty of merchantability claim is not
contingent on Plaintiffs’ intent to resell the products, and both parties agree that privity is not
required to find a cause of action when the person invoking the warranty is a consumer, the court
need not reach the question of Plaintiffs’ status as to resellers. See Docket No. 44 at 10; Docket
No. 42 at 14.
5

Case No. 5:12-cv-06449-PSG
ORDER DENYING DEFENDANT’S MOTIONS TO STRIKE AND DISMISS

1
2

IT IS SO ORDERED.
1
Dated: March 20, 2014

3

_________________________________
PAUL S. GREWAL
United States Magistrate Judge

4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6

Case No. 5:12-cv-06449-PSG
ORDER DENYING DEFENDANT’S MOTIONS TO STRIKE AND DISMISS