ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION TO STRIKE
Plаintiff Chad Brazil (“Brazil”) brings this putative class action against Dole Food Company, Inc. and Dole Packaged Foods, LLC (“Dole” or “Defendants”) alleging that Defendants’ package labeling is “misbranded” because it is unlawful and misleading. Specifically, Brazil alleges the following: (1) violation of California’s Unfair Competition Law (“UCL”), California Business and Professions Code §§ 17200 et seq., for unlawful, unfair, and fraudulent business acts and practices (claims 1, 2, and 3); (2) violation of California’s False Advertising Law (“FAL”), California Business and Professions Code §§ 17500 et seq., for untrue, as well as misleading and deceptive, advertising (claims 4 and 5); (3) violation of the Consumers Legal Remedies Act (“CLRA”), California Civil Code §§ 1750 et seq. (claim 6); (4) restitution based on unjust enrichment/quasi-contract (claim 7); (5) violation of the Song-Beverly Consumer Warranty Act, Civil Code §§ 1790 et seq. (claim 8); and (6) violation of the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301 et seq. (claim 9). Brazil seeks compensatory and punitive damages, restitution, disgorgement of profits, interest, attorney’s fees, costs, and injunctive relief.
The Court held a hearing on this motion on January 24, 2013. Having considered thе submissions of the parties, the parties’ oral arguments, and the relevant law, the Court hereby GRANTS in part and DENIES in part Defendants’ Motion to Dismiss the First Amended Complaint or, in the Alternative, Motion to Strike.
I. BACKGROUND
A. Factual Allegations
Brazil, on behalf of himself and others who are similarly situated, alleges that he purchased Defendants’ misbranded food products, including Dole Wildly Nutritious Signature Blends Mixed Berries, Dole Wildly Nutritious Signature Blends Tropical Fruit, Dole Mixed Fruit in 100% Fruit Juice, Dole Blueberries, Dole Fruit Smoothie Shakers, Dole Mixed Fruit in Cherry Gel (Sugar Free), and Dole Tropical Fruit in Light Syrup & Passion Fruit Juice. First Amended Complaint (“FAC”), ECF No. 25, ¶ 186.
Brazil read and relied upon Defendants’ package labeling including the “ ‘All Natural,’ fresh, antioxidant, sugar-free and other nutrient content claims,” and based his decision to purchase Defendants’ products in substantial part on Defendants’ package labeling, as well as Defendants’ product packaging and web claims. FAC ¶¶ 187-189. At the point of sale, Brazil alleges that he “did not know, and had no reason to know, that Defendants’ products were
Brazil seeks to bring this putative class action on behalf of a nationwide class consisting of all persons who, within the last four years, purchased Defendants’ food products:
(1) labeled or advertised as “All Natural” despite containing artificial or unnatural ingredients, flavorings, coloring, and/or chemical preservatives; (2) labeled or advertised as fresh despite being thermal processed, frozen, or containing sugar and/or having more than 40 calories per serving size; (3) labeled or advertised as sugar free despite containing sugar and/or having more than 40 calories per serving size; (4) labeled or advertised as low calories despite having more than 40 calories per serving size; (5) labeled or advertised with a nutrient content or antioxidant claim for a nutrient lacking a Daily Value or lacking the minimum Daily Value specified for the type of claim made; or (6) labeled or advertised with an unauthorized health claim.
FAC at 1-2.
B. Procedural History
Brazil filed a putative class action complaint against Defendants on April 11, 2012. ECF No. 1. Defendants filed a Motion to Dismiss on July 2, 2012. ECF No. 16. Rather than responding to Defendants’ Motion to Dismiss, Brazil filed an amended class action complaint on July 23, 2012. ECF No. 25. The Court then denied Defendants’ Motion to Dismiss the original complaint as moot. ECF No. 28. On August 13, 2012, Defendants filed a Motion to Dismiss the First Amended Complaint or, in the Alternative, Motion to Strike for: (1) lack of subject matter jurisdiction as required by Rule 12(b)(1) of the Federal Rules of Civil Procedure; (2) failure to state a claim upon which relief may be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure; and (3) failure to plead claims grounded in fraud with sufficient particularity, as required by Rule 9(b) of the Federal Rules of Civil Procedure. See Mot. to Dismiss Pl.’s FAC (“Mot.”), ECF No. 29. In addition, Defendants filed a Request for Judicial Notice in Support of the Motion to Dismiss. ECF Nos. 32, 33. Brazil filed an opposition to the motion to dismiss, see Pl.’s Opp. to Defs.’ Mot. to Dismiss FAC (“Opp’n”), ECF No. 35, to which Dеfendants filed a reply, see Defs.’ Reply Supp. Mot. to Dismiss PL’s FAC (“Reply”), ECF No. 37. Brazil also filed four notices of new case law relevant to Defendants’ Motion to Dismiss, see ECF Nos. 42, 49, 50, 51, and Defendants filed four similar notices, ECF No. 41, 45, 57, and 58.
II. LEGAL STANDARDS
A. Rule 12(b)(1)
A defendant may move to dismiss an action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). A Rule 12(b)(1) motion to dismiss tests whether a complaint alleges grounds for federal subject matter jurisdiction. A motion to dismiss for lack of subject matter jurisdiction will be granted if the Complaint on its face fails to allege facts sufficient to establish subject matter jurisdiction. See Savage v. Glendale Union High Sch.,
If the plaintiff lacks standing under Article III of the U.S. Constitution, then the court lacks subject matter jurisdiction, and the case must be dismissed. See Steel Co. v. Citizens for a Better Env’t,
B. Rule 12(b)(6)
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss an action for failure to allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
However, the court need not accept as true allegations contradicted by judicially noticeable facts, Shwarz v. United States,
C. Rule 9(b)
Claims sounding in fraud or mistake are subject to the heightened pleading requirements of Federal Rule of Civil Procedure 9(b), which requires that a plaintiff alleging fraud “must state with particularity the circumstances constituting fraud.” Fed.R.Civ.P. 9(b); see Kearns v. Ford Motor Co.,
D. Leave to Amend
If the Court determines that the complaint should be dismissed, it must then decide whether to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend “shall be freely given when justice so requires,” bearing in mind “the underlying purpose of Rule 15 ... [is] to facilitate decision on the merits, rather than on the pleadings or technicalities.” Lopez v. Smith,
III. DISCUSSION
Defendants seek to dismiss Brazil’s FAC for four reasons: (1) Brazil’s claims are preempted by the Federal Food, Drug, and Cosmetic Act (“FDCA”); (2) Brazil cannot show injury in fact in order to satisfy Article Ill’s “case or controversy” requirement; (3) Brazil’s claims are neither plausible nor sufficiently particular; and (4) none of Brazil’s claims state a viable cause of action. See Mot. at i. In the alternative, Defendants request that the Court strike all allegations concerning statements that Brazil did not see and products that Brazil did not buy. Mot. at 16. For the reasons stated herein, the Court GRANTS Defendants’ Motion to Dismiss the FAC. The Court DENIES as moot Defendants’ Motion to Strike.
A. Preemption
Defendants contend that all of Brazil’s claims are preempted because there is no private right of action to enforce regulations promulgated by the Food and Drug Administration (“FDA”). Mot. at 4-7. In addition, Defendants argue that the Sherman Food, Drug, and Cosmetic Act (“Sherman Law”), Cal Health & Safety Code §§ 109875 et seq., cannot be used to enforce FDA regulations, and Brazil’s attempts to impose requirements “not identical” to FDA regulations are expressly preempted. See Mot. at 7-11. Even if the Court does not find that Brazil’s claims are preempted, Defendants urge the Court to abstain and either dismiss or stay the case under the doctrine of primary jurisdiction. Mot. at 11-12.
The Court finds that the FDA regulations do not preempt Brazil’s state law claims, brought pursuant to the Sherman Law, that impose requirements identical to those imposed by the FDCA. In addition, the Court declines to abstain and dismiss or stay this case under the doctrine of primary jurisdiction.
1. Federal and Statutory Framework
The FDCA, codified at 21 U.S.C. §§ 301 et seq., “gives the FDA the responsibility to protect the public health by ensuring that ‘foods are safe, wholesome, sanitary, and properly labeled.’ ” Lockwood v. Conagra Foods, Inc.,
In 1990, Congress amended the FDCA with the Nutrition Labeling and Education Act of 1990 (“NLEA”) to include additional food labeling requirements. Pub.L. No. 101-535, 104 Stat. 2353 (1990); see also H. R. Rep. No. 101-538, at 7 (1990), reprinted in 1990 U.S.C.C.A.N. 3336, 3337 (stating that the purpose behind the NLEA was “to clarify and to strengthen the Food and Drug Administration’s legal authority to require nutrition labeling on foods, and to establish the circumstances under which claims may be made about nutrients in foods.”).
In addition, through the Sherman Law, California has expressly adopted the federal labeling requirements as its own and indicated that, “[a]ll food labeling regulations and any amendments to those regulations adopted pursuant to the federal act ... shall be the food regulations of this state.” Cal. Health & Safety Code § 110100. California has also enacted a number of laws and regulations that adopt and incorporate specific enumerated federal food laws and regulations. See, e.g., Cal. Health & Safety Code § 110660 (“Any food is misbranded if its labeling is false or misleading in any particular.”); Cal. Health & Safety Code § 110665 (“Any food is misbranded if its labeling does not conform with the requirements for nutrition labeling as set forth in ... 21 U.S.C. § 343(q)”); Cal. Health & Safety Code § 110670 (“Any food is misbranded if its labeling does not conform with the requirements for nutrient content or health claims аs set forth in ... 21 U.S.C. § 343(r)”).
All of the alleged misbranding violations at issue in this case are covered by FDA regulations and policies, including regulations for “nutrient content claims,” 21 C.F.R. § 101.13, “antioxidant” claims, 21 C.F.R. § 101.54(g); “fresh” claims, 21 C.F.R. § 101.95; “sugar free” and “sugarless” claims, 21 C.F.R. § 101.60(c); and “health” claims, 21 C.F.R. § 101.14.
2. Preemption and Private Rights of Action
Defendants allege that all of Brazil’s claims are preempted because “there is no private right of action to enforce FDA regulations.” Mot. at 4. The FDCA provides that, in general, “proceedings for the enforcement, or to restrain violations, of [the FDCA] shall be by and in the name of the United States.” 21 U.S.C. § 337(a) (emphasis added).
The real question presented here is whether the FDCA preempts Brazil’s suit to enforce state food-labeling requirements, brought pursuant to the Sherman
“Federal preemption occurs when: (1) Congress enacts a statute that explicitly pre-empts state law; (2) state law actually conflicts with federal law; or (3) federal law occupies a legislative field to such an extent that it is reasonable to conclude that Congress left no room for state regulation in that field.” Chae v. SLM Corp.,
When analyzing the scope of a preemption statute, a court’s analysis must “start with the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Lohr,
There is a strong presumption against federal preemption in this case as the regulation of health and safety, including laws regulating the proper marketing of food, are traditionally within states’ historic police powers. See Florida Lime & Avocado Growers v. Paul,
Nonetheless, in support of its preemption argument, Defendants rely heavily on the Ninth Circuit’s recent decision in Pom Wonderful LLC v. Coca-Cola Company,
The Ninth Circuit based its Pom Wonderful decision, in part, on the fact that the FDCA and the Lanham Act — both broad federal statutes — may at times conflict. Id. at 1175. Consequently, the Ninth Circuit observed that, to “try to give as much effect to both statutes as possible ... courts have focused on Congress’s decision to entrust to the FDA the task of interpreting and enforcing the FDCA.” Id. (internal quotation marks and citations omitted). Allowing a plaintiff to sue under the Lanham Act to enforce the FDCA or its regulations would, as the Ninth Circuit reasoned, “undermine Congress’s decision to limit enforcement of the FDCA to the federal government.” Pom Wonderful LLC,
The Court is not persuaded that Pom Wonderful stаnds for the sweeping proposition Defendants set forth. First, the Court in Pom Wonderful limited its ruling to the federal Lanham Act and explicitly declined to address whether plaintiffs state law claims were also preempted. See Pom Wonderful LLC,
Second, there is no indication from the text of the NLEA or its legislative history that Congress “intended a sweeping preemption of private actions predicated on requirements contained in state laws.” In re Farm Raised Salmon Cases,
That Congress did not intend to preclude private enforcement actions of state laws that mirror the FDCA is also supported by the fact that Section 6(c)(1) of the NLEA states that the preemptive effect of the NLEA “sweep[s] no further than the plain language of the statute itself.” Pub. L. No. 101-535, § 6(c)(1) (Nov. 8, 1990), 104 Stat. 2364, amended Aug. 17, 1991, Pub. L. 102-108, § 2(b), 105 Stat. 549.
Furthermore, finding that states are not prevented from pursuing private actions to enforce state requirements that mirror FDCA requirements corresponds with the Supreme Court and the Ninth Circuit’s interpretatiоn of similar preemption provisions in the context of the Medical Device Amendments “MDA” to the FDCA, 21 U.S.C. §§ 360c et seq. In Medtronic, Inc. v. Lohr, the Supreme Court interpreted the MDA’s express preemption provision which prohibits States from establishing “any requirement ... different from, or in addition to” FDCA labeling and design requirements for medical devices. 21 U.S.C. § 360k. The Supreme Court held that Section 360k does not preempt “State or local requirements that are equal to, or substantially identical to, requirements imposed by or under the [FDCA].”
Given that (1) regulating the proper marketing of food has traditionally been within states’ historic police powers, and (2) there is no clear indication from Congress that, in the process of attempting to strengthen and unify nutrition food labeling, it intended to preclude states from affording state consumers protection from misbranded food products, the Court is not persuaded that Defendants have overcome the presumption against preemption. See Lohr,
3. Preemption Based on Claims that are “Not Identical” to Federal Requirements
Defendants contend that Brazil is also attempting to impose requirements that differ from or are in addition to FDA regulations, which is expressly preempted. Mot. at 8. Pursuant to 21 U.S.C. § 343-1(a), “no state ... may directly or indirectly establish ... any requirement ... made in the ... labeling оf food that is not identical to” certain FDA requirements, such as 21 U.S.C. § 343(q), which applies to nutrition information, and 21 U.S.C. § 343(r), which applies to “Nutrition levels and health-related claims.” See Wyeth v. Levine,
For the purpose of this motion, Defendants have not identified the specific discrepancies that they believe exist between the FDA regulations and the requirements that Brazil is allegedly seeking to impose. Instead, Defendants simply provide “examples” which they believe to be illustrative, contending that Brazil’s “kitchen sink” approach makes it “[im]possible to rebut each of his errors” within the confínes of this motion. Mot. at 9, n. 10. The Court declines tо engage in a searching inquiry of all potential discrepancies on its own. See generally United States v. Dunkel,
In addition, Defendants contend that, “[f]or purposes of this motion, this Court is not being asked to decide” whether Defendants’ products actually fall within FDA regulations and guidelines.” Mot. at 7.
4. Primary Jurisdiction
Defendants argue that, even if the Court finds that Brazil’s claims are not preempted, the Court should abstain and either dismiss or stay the case under the doctrine of primary jurisdiction. The Court declines to do either.
The primary jurisdiction doctrine “allows courts to stay proceedings or to dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency.” Clark v. Time Warner Cable,
Here, Defendants contend that the FDA has “regulatory authority pursuant to a statute that subjects an industry or activity to comprehensive regulatory authority,” and that “resolving the issue ‘requires expertise of uniformity in administration.’ ” Mot. at 12 (citing Syntek Semiconductor Co.,
In support of its position, Defendants cite to Judge Hamilton’s recent decision in Astiana v. Hain Celestial Grp. (“Hain Celestial”),
However, Hain Celestial is inapposite because the FDA has established requirements applicable to all of the alleged violations Brazil assеrts. In fact, as noted previously, Defendants concede, “there is no label element Plaintiff challenges that is not addressed by FDA regulation or policy.” Mot. at 9 (emphasis in original). Therefore, in this case there is no such
Moreover, this case does not raise a “particularly complicated issue that Congress has committed to a regulatory agency.” Brown, 277 F.3d at 1172. As with so many of the other food misbranding cases filed recently within this district, Brazil’s case is “far less about science than it is about whether a label is misleading.” Jones v. ConAgra Foods, Inc., 912 F.Supp.2d. 889, 898 (N.D.Cal.2012). Furthermore, “ ‘every day courts decide whether conduct is misleading,”’ and the “ ‘reasonable-consumer determination and other issues involved in Plaintiffs lawsuit are within the expertise of the courts to resolve.’ ” Id. at 899 (quoting Lockwood,
Thus, because this case does not “require[ ] resolution of an issue of first impression, or of a particularly complicated issue that Congress has committed to a regulatory agency,” the Court does not find it necessary to stay this case based on the doctrine of primary jurisdiction. Brown v. MCI WorldCom Network Servs., 277 F.3d 1166, 1172 (9th Cir.2002). As the Ninth Circuit noted in MCI WorldCom Network Services, the doctrine of primary jurisdiction “does not require that all claims within an agency’s purview be decided by the agency.” Id. (emphasis added). “Nor is it intended to ‘secure expert advice’ for the courts from regulatory agencies every time a court is presented with an issue conceivably within the agency’s ambit.” Id.
The Court also does not find it necessary to “abstain and dismiss” this case. Defendants cite to In re Paxil Litig.,
B. Article III “Injury in Fact”
Defendants also argue that Brazil lacks Article III standing as he cannot prove that he suffered an “injury in fact.” Mot. at 12 (citing Lujan v. Defenders of Wildlife,
An Article III federal court must ask whether a plaintiff has suffered sufficient injury to satisfy the “case or controversy” requirement of Article III of the U.S. Constitution. See Clapper v. Amnesty Int’l, — U.S. -,
Defendants argue that Brazil cannot prove that he suffered an “injury in fact” because his alleged injury arises from the allegation that the products he purchased are “legally worthless.” Mot. at 13 (citing to FAC ¶¶ 80, 92, 105, 126, 128, 138, 148, 171, 172, 216, 226, 236, 245, 254, 276, 286, 297). Defendants characterize this as “a lawyer’s musings,” rather than a “real harm.” But see Lanovaz v. Twinings North America, Inc., No. 12-02646,
Defendants also contend that Brazil does not satisfy the “injury in fact” requirement as he does not allege any physical harm causеd by eating the fruit. In support of this argument, Defendants cite to Boysen v. Walgreen Co., No. 11-CV-06262,
In opposition, Brazil contends that his allegations are clearly sufficient to plead standing. Opp’n at 12. Specifically, Brazil alleges economic injury based on the following: (1) purchasing products he would not have otherwise purchased had he known the truth about Defendants’ “unlawful labeling practices and actions,” see FAC ¶¶ 77, 91, 104, 125, and 127; and (2) paying an “unwarranted premium” due to Defendants’ false and misleading labels, see FAC ¶¶ 80, 92, 105, 128, 137, 170, and 216. Notably, unlike in Boysen, Brazil does allege that, had defendants’ products been differently labeled, he would have purchased different fruit products. See, e.g., FAC ¶ 91.
Essentially, Brazil alleges that he and class members “spent money that, absent defendants’ actions, they would not have spent,” which constitutes “a quintessential injury-in-fact.” Maya v. Centex Corp.,
Notably, several other courts within this district have found similar allegations sufficient for the purposes of alleging “injury in fact.” See, e. g., Chacanaca,
Assuming all of the factual allegations alleged in the FAC to be true, the Court must accept that Brazil suffered a concrete and particularized injury based on the fact that he allegedly was deceived, and then paid money that he would not otherwise have paid had he known about the true nature of Defendants’, products. Accordingly, the Court finds that Brazil has sufficiently alleged injury in fact in order to satisfy the requirements for Article III standing.
. C. Plausibility and Particularity
Defendants allege that, “[e]ven if Plaintiff could survive preemption and could show Article III ‘injury in fact,’ all his claims would run aground on implausibility and failure to plead with particularity.” Mot. at 17. While the Court does not find that Brazil’s claims are so implausible as to warrant granting Defendants’ Motion to Dismiss on this basis, the Court does find that a number of Brazil’s claims lack sufficient particularity. Consequently, pursuant to Rule 9(b), the Court GRANTS without prejudice Defendants’ Motion to Dismiss Brazil’s UCL, FAL, and CLRA claims that are grounded in fraud.
1. Plausibility
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a plaintiff to set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The Supreme Court has held that Rule 8 requires that a complaint’s well-pleaded allegations, if taken as true, must “plausibly give rise to an entitlement to relief.” Iqbal,
The standard for California’s UCL, FAL, and CLRA is the “reasonable con
While the Court has doubts about the ultimate viability of some of Brazil’s claims, the Court recognizes that “[t]he plausibility standard is not akin to a probability requirement.” Iqbal,
2. Particularity
Defendants also argue that Brazil does not meet the more stringent requirements of Rule 9(b). Brazil’s second, third, fourth, fifth, and sixth causes of action sound in fraud and are therefore all subject to the heightened pleading requirement of Rule 9(b) of the Federal Rules of Civil Procedure. See Kearns,
“Averments of fraud must be accompanied by ‘the who, what, when, where, and how’ of the misconduct charged,” Kearns,
Despite spanning sixty-one pages, Brazil’s FAC provides little more than a long summary of the FDCA and its food labeling regulatiоns, a formulaic recitation of how these regulations apply to Defendants’ products, and conclusory allegations regarding Defendants’ “unlawfulness.” But see Iqbal,
First, the FAC does not state which Dole products are at issue in this case. Instead, the FAC makes general references to Defendants’ misbranded labels on a “number” of their “food products.” See, e.g., FAC ¶ 53. Although Brazil alleges that he purchased seven fruit-related products, FAC ¶ 186, the FAC also appears to allege violations based on misbranding of products that are not necessarily similar, such as Dole vegetables, see FAC ¶ 135, and products that are otherwise unidentifiable, such as Dole’s “other food products,” see FAC ¶ 85. Nevertheless, the FAC claims, without factual support, that “the violations and misrepresentations are similar across product labels and рroduct lines.” Id. ¶ 16. At times the FAC even refers to products that are not at issue in this case, such as tea. See, e.g., FAC ¶ 136. Brazil’s claims are difficult to decipher and appear to include claims from similar lawsuits filed in this district.
Second, the FAC is filled with vague assertions that, despite general references to multiple categories of state and federal regulations, leave unclear the precise nature of any alleged violation. Finally, the FAC also does not clearly indicate the content of the labels upon which Brazil allegedly relied when making his purchases or the advertisements and website statements that he saw and supposedly found misleading. Although Brazil alleges that “Defendants’ misrepresentations are part of an extensive labeling, advertising, and marketing campaign,” FAC ¶ 194, he does not allege that he personally saw and/or relied on any misleading advertisements or website statements in particular. Brazil is correct that, “where a ‘plaintiff alleges exposure to a long-term advertising campaign ... [he] is not required to plead with an unrealistic degree of specificity that ... [he] relied on particular advertisements or statements.” Opp’n at 15 (citing In re Tobacco II Cases,
Thus, the FAC does not “give defendants notice of the particular misconduct
D. Rule 12(b)(6)
Finally, Defendants argue that, pursuant to Rule 12(b)(6), all of Brazil’s causes of action must be dismissed due to failure to state a claim upon which relief may be granted.
1. UCL, FAL, and CLRA Claims
In light of the Court’s ruling in Parts III.A, III.B., and III.C. of this Order, the Court declines to address Defendants’ additional arguments that Brazil’s FAC should be dismissed pursuant to Rule 12(b)(6) because Brazil: (1) lacks standing to assert a claim under the UCL and FAL; (2) has failed to plead actual reliance or causation; and (3) Plaintiffs claims under the unlawful and unfairness prongs fail because they сannot be based on alleged FDCA violations as the “FDA maintains exclusive enforcement authority, and the FDCA precludes any private right of action.” Mot at 23.
2. Song-Beverly Consumer Warranty Act
Defendants contend that Brazil has not stated a claim under the Song-Beverly Consumer Warranty Act. The Court agrees, and DISMISSES this claim with prejudice.
The Song-Beverly Consumer Warranty Act provides that “every sale of consumer goods that are sold at retail in [California] shall be accompanied by the manufacturer’s and the retail seller’s implied warranty that the goods are merchantable.” Cal. Civ.Code § 1792. Under the Act, a “consumer good” is defined as “any new product or part thereof that is used, bought, or leased for use primarily for personal, family, or household purposes, except for clothing and consumables.” Cal. Civ.Code § 1791(a) (emphasis added). Brazil does not dispute that all of the products at issue in this case are consumables. Therefore, all of Defendants’ products are excluded from the Act. Because Brazil has not, and cannot; allege a breach of the Song-Beverly Consumer Warranty Act, the Court GRANTS Defendants’ Motion to Dismiss this cause of action with prejudice.
3. Magnuson-Moss Warranty Act
In addition, Defendants seek to dismiss Brazil’s claim under the Magnuson-Moss Warranty Act (“MMWA”). The Court finds that Brazil has failed to state a viable cause of action under the MMWA because: (1) Brazil’s allegations are insufficient to confer subject matter jurisdiction, and (2) the allegedly misbranded labels do not constitute “written warranties,” as defined by the Act. Accordingly, the Court GRANTS Defendants’ Motion to Dismiss the MMWA claim with prejudice.
The federal MMWA creates a civil cause of action for consumers to enforce the terms of implied or express warranties. See 15 U.S.C. § 2310(d). In order to bring a cognizable claim under the MMWA, the amount in controversy of an individual claim must be greater or equal to $25, and the number of named plaintiffs must be more than one hundred. 15 U.S.C. § 2310(d)(3)(C). In addition, the MMWA applies only to products that cost more than five dollars. 15 U.S.C. § 2302(e). As there is only one named plaintiff in this action, and Brazil fails to allege that the products at issue cost more than five dollars, the Court lacks subject matter juris
Brazil’s MMWA claim also fails because the allegedly misbranded labels do not constitute warranties, and thus are not covered by the act. Under the MMWA, a “written warranty” means a “written affirmation of fact or written promise made in connection with the sale of a consumer product by a supplier to a buyer which relates to the nature of the material ... and affirms or promises that such material ... is defect free or will meet a specified level of performance over a specified period of time.” 15 U.S.C. § 2301(6)(A).
“The word ‘defect’ is not defined within the MMWA.” Larsen v. Trader Joe’s Co., No. 11-5188,
4. Unjust Enrichment
Defendants’ final argument is that Brazil’s claim for restitution based on “unjust enrichment/quasi contract” must be dismissed because California does not recognize “unjust enrichment” as a separate cause of action. Mot. at 25. The Court agrees.
Despite some inconsistency in the law, several recent decisions by the Cali
In addition, restitution is already a remedy for Brazil’s UCL claim. See Pfizer Inc. v. Super. Ct.,
Accordingly, the Court thus GRANTS Defendants’ Motion to Dismiss Brazil’s claim for Restitution Based on Unjust Enrichment/Quasi Contract with prejudice.
IV. CONCLUSION
For the foregoing reasons, the Court DISMISSES without prejudice Brazil’s UCL, FAL, and CLRA claims (causes of action one through six). The Court DISMISSES with prejudice Brazil’s seventh, eighth and ninth causes of action that are based on the Song-Beverly Act, the Manguson-Moss Warranty Act, and Unjust Enrichment. The Court DENIES as moot Defendants’ Motion to Strike.
Should Brazil elect to file a Secоnd Amended Complaint curing the deficiencies discussed herein, he shall do so within 21 days of the date of this Order. Failure to meet the 21 day deadline to file an amended complaint or failure to cure the deficiencies identified in this Order will result in a dismissal with prejudice. Brazil may not add new causes of action or parties without leave of the Court or stipulation of the parties pursuant to Federal Rule of Civil Procedure 15.
IT IS SO ORDERED.
Notes
. The NLEA preemption statute also permits a State to bring proceedings, "in its own name and within its jurisdiction,” to enforce certain food-labeling provisions of the FDCA if the State complies with specified procedural requirements. 21 U.S.C. § 337(b).
. In Lohr, the defendants encouraged the Supreme Court to adopt a position on preemption similar to the one Defendants set forth in this case. The Supreme Court rejected defendant’s argument regarding field preemption, stating that it was "not only unpersuasive,” but also "implausible.” Lohr,
. The Court separately addresses Brazil’s causes of action based on the Song-Beverly Consumer Warranty Act, the Magnuson-Moss Warranty Act, and Restitution based on Unjust Enrichment. See Part III.D.
. On a motion to dismiss, a court may only consider the pleadings and matters of public record subject to judicial notice. See MGIC Indem. Corp. v. Weisman,
. Despite the fact that the Court has dismissed Brazil’s only federal claim, the Court finds that it retains jurisdiction due to the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2). Both parties agree. See Tr. 11:6-22.