Case Information
*1 Case 2:25-cv-03561-AJR Document 44 Filed 09/30/25 Page 1 of 31 Page ID #:554
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA FRANCY GRAHAM, individually and on behalf of all others similarly situated, Case No. 2:25-cv-03561-AJR
MEMORANDUM DECISION AND ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND (DKT. 31) Plaintiff,
v.
ANDROS FOODS USA, INC.
Defendant. I.
INTRODUCTION
On April 22, 2025, Plaintiff Francy Graham (“Plaintiff”), individually and on behalf of all others similarly situated, filed a Complaint (the “Complaint”) against Defendant Andros Foods USA, Inc. (“Defendant” ) alleging causes of action for: (1) Violation of California ’s Consumers Legal Remedies Act (the “CLRA”) ; (2) Violation of California ’s False Advertising Law (the “FAL”) ; (3) Violation of California ’s Unfair Competition Law (the “UCL”) ; (4) Breach of Express Warranty (Cal. Com. Code § 2313); (5) Breach of Implied Warranty (Cal. Com. Code § 2314); and (6) Intentional Misrepresentation. (Dkt. 1.) On June 18, 2025, *2 Case 2:25-cv-03561-AJR Document 44 Filed 09/30/25 Page 2 of 31 Page ID #:555
Defendant filed a Motio n to Dismiss Plaintiff’s Complaint. (Dkt. 23.) However, instead of opposing the Motion to Dismiss, Plaintiff elected to file an amended complaint. (Dkt. 30.)
On July 9, 2025, Plaintiff filed a First Amended Complaint (“FAC”) against Defendant alleging causes of action for: (1) Violation of the CLRA; (2) Violation of the FAL; (3) Violation of the UCL; (4) Negligent Misrepresentation; (5) Intentional Misrepresentation; and (6) Quasi Contract/Unjust Enrichment/Restitution. (Dkt. 29.) On July 23, 2025, Defendant filed a Motion to Dismiss Plaintiff’s FAC , (Dkt. 31), as well as two requests for judicial notice. (Dkts. 32, 33.) On July 30, 2025, Defendant filed a Corrected Memorandum of Points & Authorities in Support of Defendant’s Motion to Dismiss the FAC (the “Motion”), (Dkt. 37), as well as a Corrected Request for Judicial Notice (the “Request for Judicial Notice”). [1] (Dkt. 38.) On August 20, 2025, Plaintiff filed an Opposition to the Motion (the “Opposition”). (Dkt. 39.) On August 27, 2025, Defendant filed a Reply in Support of the Motion (the “Reply”) . (Dkt. 40.)
For the reasons discussed below, the Court GRANTS Defendant ’s Motion to Dismiss WITH LEAVE TO AMEND. (Dkt. 31.)
II.
PLAINTIFF’S ALLEGATIONS IN THE FAC
Plaintiff makes the following allegations in support of her claims, which are assumed to be true for purposes of the Motion, except those contradicted by the *3 Case 2:25-cv-03561-AJR Document 44 Filed 09/30/25 Page 3 of 31 Page ID #:556
facts of which the Court has taken judicial notice. See Mullis v. U.S. Bankr. Court,
Defendant is a Delaware corporation with its principal place of business in New Jersey. (Dkt. 29 at 8.) Defendant markets and distributes Bonne Maman ® (“ Bonne Maman ”) preserves and jellies. (Id. at 3, 8.) This action concerns the
following preserve and jelly products: Bonne Maman Cherry Preserves, Bonne Maman Mixed Berries Preserves, Bonne Maman Muscat Grape Jelly, Bonne Maman Peach Preserves, Bonne Maman Raspberry Preserves, Bonne Maman Strawberry Preserves, and Bonne Maman Wild Blueberry Preserves (the “Products”). ( Id. at 9.) Defendant, through its labeling, packaging, and advertising of Bonne Maman products, intentionally misleads consumers into believing that all Bonne Maman preserves and jellies are exclusively made in France. (Id. at 3.) Specifically, the entire brand is named “ Bonne Maman ” – translating to “good mommy” in French, and used colloquially to mean “grandmother” or “granny” – and each Bonne Maman product is enclosed with a “Vichy print” lid (together, the “ French Representations ”). ( Id. at 3.) “Vichy” refers to the red and white checkered pattern, featured on the lid of each product. (Id. at 3 n.1.) The Vichy pattern was first mass produced in Vichy, France during the reign of Napoleon Bonaparte. (Id.) However, contrary to the French Representations , the Products are not exclusively made in France, but are instead sometimes made in Belgium. (Id. at 4.)
Plaintiff, who resides in Los Angeles County, purchased Bonne Maman Wild Blueberry Preserves and Bonne Maman Raspberry Preserves in or about July 2024 at Whole Foods Market in Los Angeles, California. (Id. at 8.) Plaintiff saw and relied on the French Representations , reasonably believing that she was purchasing preserves that are exclusively made in France. (Id.) However, unbeknownst to *4 Case 2:25-cv-03561-AJR Document 44 Filed 09/30/25 Page 4 of 31 Page ID #:557
Plaintiff, the Products are not exclusively made in France, but are also made in Belgium. (Id.) Plaintiff would not have purchased the Products or would have paid significantly less for them had she known that they were not exclusively made in France. (Id.)
For the products made in Belgium, Defendant does not clearly and affirmatively identify the geographic origin by stating on the consumer-facing front label – or even back label – “Product of Belgium.” (Id. at 4.) Instead, the back label reads: “Produced by Materne Conflux S.A. – 1 Allee Des Cerisiers B-5151 – Floreffe – Belgium.” (Id. at 5.) However, for products made in France, the front label includes a clear and affirmative statement that states “Product of France,” while also including on the back label, “Produced by Andros 46130 Biars – France.” (Id.) Additionally, even on some products produced in France, like the miniature jars, Defendant cannot fit a “Product of France” statement on the front label, but includes that clear statement on the back label. (Id. at 6.) Defendant intentionally reinforces the perception that the Products are exclusively made in France by uniformly packaging the Products with its Vichy print lid and marketing the Products with additional information to further reinforce the French Representations , including selling a “Taste of France” gift set, and partnering with Taste France Magazin e, “an initiative of the French Ministry of Agriculture and Food.” ( Id. at 11.) Defendant deceptively advertises the Products in order to exploit strong consumer sentiment for French-made goods. (Id. at 12.) Plaintiff brings this action on behalf of herself and California citizens who purchased any of the Products within the relevant statute of limitations period and all persons who, within the relevant statute of limitations period, purchased any of the Products for personal, family, or household purposes, in the State of California. (Id. at 17.)
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Case 2:25-cv-03561-AJR Document 44 Filed 09/30/25 Page 5 of 31 Page ID #:558
III.
REQUEST FOR JUDICIAL NOTICE
Defendant requests judicial notice of twelve documents: 1. Exhibit 1: A true and correct copy of a label for Bonne Maman® brand preserves and jellies product produced in France.
2. Exhibit 2: A true and correct copy of a label for Bonne Maman® Muscat Grape Jelly produced in Belgium
3. Exhibit 3: A true and correct copy of a label for Bonne Maman® Wild Blueberry Preserves produced in Belgium.
4. Exhibit 4: A true and correct copy of a label for Bonne Maman® Raspberry Preserves produced in Belgium.
5. Exhibit 5: A true and correct copy of a label for Bonne Maman® Strawberry Preserves produced in Belgium.
6. Exhibit 6: A true and correct copy of a label for Bonne Maman® Cherry Preserves produced in Belgium.
7. Exhibit 7: A true and correct copy of a label for Bonne Maman® Mixed Berries Preserves produced in Belgium.
8. Exhibit 8: A true and correct copy of a label for Bonne Maman® Peach Preserves produced in Belgium.
9. Exhibit 9: A true and correct copy of U.S. Trademark Registration No. 4,103,670 for Bonne Maman® in Int. Cls. 29, 30, and 32 registered Feb. 28, 2012.
10. Exhibit 10: A true and correct copy of U.S. Trademark Registration No. 6,988,036 for Bonne Maman® in Int. Cls. 5, 29, 30, and 32 registered Feb. 28, 2023.
11. Exhibit 11: A true and correct copy of U.S. Trademark Registration No. 1,308,179 for Bonne Maman® in Int. Cls. 29 and 30 registered Dec. 4, 1984. 12. Exhibit 12: An archived web page of the British Broadcasting Corp.
Case 2:25-cv-03561-AJR Document 44 Filed 09/30/25 Page 6 of 31 Page ID #:559
(“BBC”) available at
https://www.bbc.co.uk/languages/european_languages/countries/belgium.sht ml.
(Dkt. 38.)
Exhibits 1 through 8 are properly subject to judicial notice because they are
incorporated by reference into the FAC and Defendant establishes their authenticity
through the declaration of Sylvain Dronet (“Dronet Decl.”), Vice President of
Defendant. See Knievel v. ESPN,
Exhibits 9 through 11 are government records that are not subject to
reasonable dispute pursuant to Federal Rule of Evidence 201(b). Similarly, Exhibit
12 is a government web page that is not subject to reasonable dispute. As such, the
Court also GRANTS Defendant’s Request for Judicial Notice as to Exhibits 9
through 12. See Gerritsen v. Warner Bros. Ent. Inc.,
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IV.
LEGAL STANDARD
To survive a motion to dismiss under Federal Rules of Civil Procedure
12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
The Court must accept as true all non-conclusory factual allegations
contained in the complaint and must construe the complaint in the light most
favorable to the plaintiff. See Steinle v. Cty. & Cnty. of San Francisco, 919 F.3d
1154, 1160 (9th Cir. 2019). “Generally, a court may not consider material beyond
the complaint in ruling on a Fed. R. Civ. P. 12(b)(6) motion.” Intri-Plex Techs.,
Inc. v. Crest Grp., Inc.,
to a defendant’s motion to dismiss.”).
The Court may not dismiss a complaint without leave to amend unless “it is
absolutely clear that the deficiencies of the complaint could not be cured by
amendment.” Akhtar,
Under Federal Rule of Civil Procedure 12(f), a “court may strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.” The purpose of striking such matter is to avoid wasting “time
and money that must arise from litigating spurious issues by dispensing with those
issues prior to trial.” Whittlestone, Inc. v. Handi-Craft Co.,
IV.
DISCUSSION
A. Plaintiff Failed To Plausibly Allege That A Reasonable Consumer
Would Be Deceived About The Products’ Country Of Origin.
To state a claim under the UCL, FAL, or CLRA, a plaintiff must allege that
the defendant’s purported misrepresentations are likely to deceive a reasonab le
consumer. See Williams v. Gerber Products Co.,
“[W] hether a business practice is deceptive will usually be a question of fact
not appropriate for decision on [a motion to dismiss].” Williams,
Here, Plaintiff alleges that Defendant misleads consumers that the Products are exclusively made in France through what Plaintiff calls the French Representations . (Dkt. 29 at 3.) According to the FAC, the French Representations are: (1) the fact that the entire brand is named “ Bonne Maman ” – translating to “good mommy” in French, and used colloquially to mean “grandmother” or “granny”; and (2) each jar of the Products is enclosed with a “Vichy check” lid, which is a red and white checkered pattern first mass produced in Vichy, France during the reign of Napolean Bonaparte. (Id. at 3 & n.1.) Below are images from the FAC showing the brand name “ Bonne Maman ” and the “Vichy check” lids on the Products:
(Dkt. 29 at 5.) The FAC also alleges that Defendant’s advertising of the Products reinforces the perception that the Products are exclusively made in France. (Id. at 11.) The Court will address each of the allegedly misleading representations below.
As an initial matter, many courts have recognized that a reasonable consumer
would “not be misled [as to the country of origin] by the presence of some foreign
language words or phrases on the Products.” La Barbera,
For example, in Culver v. Unilever United States, Inc., the court granted a
motion to dismiss misleading labeling claims based on the use of French words on
mustard jars that were made in Canada. See Culver,
[T]he allegedly misleading words do not by themselves actually indicate the country where the Products are manufactured. While the front labels contain two words in the French language – which are prepositions ( i.e. “depuis” and “que”) – and two proper nouns ( i.e. “Paris” and “Maille”), there are no concomitant words or references to a geographic source or origin. For example, there are no phrases such as “from Paris ( i.e. “de Paris”), “product of France,” or even “imported.” All of the remaining many words on the front label are in English. Likewise, the translation of the French words into English does not suggest the place of manufacture. “Depuis 1747” means “since 1747” and “que Maille” means “that (or than) Maille.” Thus, the pleadings do not delineate a basis, other than unfounded supposition, for a consumer to believe that the Products were made in France.
Id. at *8 (footnote omitted). Thus, the Culver court concluded that the plaintiff had failed to state a claim that the labeling on the mustard jars was misleading as to the country of origin. Id. at *9.
Similarly here, the label on the Products contains the French phrase “
Bonne
Maman
, ” which translates to “good mommy,” (Dkt . 29 at 3), and does not reference
or suggest a geographic source, origin, or place of manufacture.
[2]
See Culver, 2021
WL 2943937, at *8; La Barbera,
Moreover, the phrase “
Bonne Maman
” is a registered trademark, (Dkt s. 38-9,
38-10, 38-11), which further undermines Plaintiff’s claim that the phrase is
misleading because “ a prerequisite to acquiring a trademark registration in the
United States[] [is that the] mark must not be deceptively misdescriptive of the
product. ” Rooney v. Cumberland Packing Corp.,
It cannot be doubted that Defendant has the right to utilize its trademarks and other authorized words which correctly indicate that the Products belong to the Maille brand. Thus, Defendant cannot be held to be misleading the consuming public when it utilized either its trademarks ( i.e. “Maille” or “Que Maille”) or other words or phrases which are associated with its merchandising history ( i.e. “Paris” and “Depuis 1747” – reflecting the opening in 1747 of its first boutique establishment in Paris).
Culver,
Plaintiff contends that the language on the front label of the Products in
combination with the use of the “Vichy check” on the lids of the Products creates
an overall brand image that could deceive a reasonable consumer about the country
of origin. (Dkt. 29 at 3 & n.1.) However, the FAC does not contain facts that
plausibly support the inference that a reasonable consumer would associate the
“Vichy check” pattern with products made in France. Instead, the FAC asserts in a
conclusory manner that the check pattern is “known globally” as “Vichy check”
and that this pattern was first mass produced in Vichy, France during the reign of
Napoleon Bonaporte. (Id.) But to support this assertion, the FAC cites to an article
from Vogue Mexico & Latina America which explains that “the original
manufacture of this fabric originated in Malaysia” and “was imported to England
under Elizabeth I.” ( Id. (citing Laura Tortora, Vichy checks and the story behind
the eternal summer print, Vogue Mexico & Latin America, July 1, 2022,
www.vogue.mx/moda/articulo/cuadros-vichy-historia-del-estampado-de-moda-del-
verano) .) The article explains that “Vichy check,” more popularly known a s
“Gingham print,” was first popularized in the United States by movie stars such as
Joan Crawford, Katharine Hepburn, and Brigitte Bardot, and later famously worn
by Lady Diana, the Princess of Wales. (Tortora, Vichy checks and the story behind
the eternal summer print, www.vogue.mx/moda/articulo/cuadros-vichy-historia-del-
estampado-de-moda-del-verano.) Indeed, the whole point of the article seems to be
that Gingham print has a timeless international appeal. (Id.)
Thus, the Court concludes that the use of the “Vichy check” on the lids of the
Products , in combination with the brand name “
Bonne Maman
,” is insufficient to plausibly suggest a reasonable consumer would be misled about the country of
origin. See Maeda v. Kennedy Endeavors, Inc.,
Finally, Plaintiff alleges that Defendant’s advertising of the Products
reinforces the perception that the Products are exclusively made in France. (Dkt. 29
at 11.) Specifically, Plaintiff alleges that “the Products were marketed or shelved
with additional information to further reinforce the
French Representations
,
including selling a ‘Taste of France’ gift set, and partnering with Taste France
Magazine.”
[3]
(Id.) However, Plaintiff fails to allege that any of the varieties of the
Products sold in the “Taste of France” gift set or marketed in Taste France
Magazine were not actually produced in France. (Id. at 11-12.) Regardless, even
assuming that Defendant’s advertising created some ambiguity about the country of
origin of the Products, the Court must “consider[] other information readily
available to the consumer that could easily resolve the alleged ambiguity.” Moore
v. Trader Joe’s Co. ,
Here, a reasonable consumer who was trying to determine the country of origin of the Products would be able to read the back label which clearly discloses the address where the specific jar of the product was produced. (Dkt. 29 at 5.) Indeed, the FAC admits that the varieties of the Products that are produced in Belgium state on the back label, “Produced by Materne Conflux S.A. – 1 Allee Des Cerisiers B-5151 – Floreffe – Belgium.” ( Id.) Similarly, the varieties of the
Products that are produced in Franc e state on the back label, “Produced by Andros 46130 Biars – France.” ( Id.) Below are images of front and back labels from the FAC:
(Id. at 6.) Plaintiff contends that the text of the address is “difficult to read because it appears in small, nondescript print, and is not a standalone statement,” ( id.), but the text is printed in the same typeface and font size as the ingredient list and refrigeration instructions, which are legible and actually larger than the nutrition facts. [4] (Id. at 5-6.) Indeed, the disclosure of the address where the specific product is produced complies with federal labeling laws. See 21 U.S.C. § 343(e)(1) (requiring the label to include “ the name and place of business of the manufacturer, packer, or distributor” of the produc t). Moreover, federal labeling law prohibits states from imposing requirements “not identical to” the requirements under federal law. 21 U.S.C. § 343-1(a)(2). Therefore, this Court cannot interpret California law (the UCL, FAL, and CLRA) as imposing a labeling requirement inconsistent with federal law. [5]
Ultimately, when the Court considers all of the information available to
consumers (the “
Bonne Maman
” trademark, the use of the “Vichy check” pattern on
the lids, Defendant’s advertising, and the disclosure of the address where the
product is produced on the back label), the Court concludes that no reasonable
consumer would be deceived about the Products ’ country of origin. See La
Barbera,
Plaintiff places heavy reliance on Shalikar v. Asahi Beer U.S.A., Inc., 2017
WL 9362139 (C.D. Cal. Oct. 16, 2017), to support her argument that the FAC
plausibly alleges a reasonable consumer would be deceived about the Products’
country of origin. (Dkt. 39 at 12-13.) In Shalikar, the plaintiffs alleged that the
product labeling on Asahi beer was deceptive as to the country of origin because
the beer was actually brewed in Canada while a reasonable consumer would believe
that the beer was brewed in Japan. See Shalikar, Inc.,
Based on these facts, the Shalikar court concluded that the allegations were sufficient to state a claim for deceptive labeling and that the effect of the disclosure that the beer was brewed in Canada could not be determined as a matter of law on the then-existing record. Id. at *8. The Shalikar court explained that this conclusion was supported by survey evidence in the operative complaint showing that more than 86% of the demographically representative U.S. sample of over 1,000 adults who viewed the beer or its packaging believed that it was produced in Japan. Id. Thus, the Shalikar court concluded that the plaintiffs had “ plausibly alleged a probability that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled. ” Id. (internal quotation marks omitted).
As an initial matter, the Court concludes that Shalikar is distinguishable
because the label on the Asahi beer included extensive usage of prominently
featured Japanese phrases, script, and characters. See Shalikar, Inc., 2017 WL
9362139, at *7. By contrast, here, the label on the Products contains only the brand
name “
Bonne Maman
” in French, and all other text is in English. (Dkt. 29 at 3.)
The only other indicium of French origin is the “Vichy check” lid, but as explained
above, the FAC does not contain facts that plausibly support the inference that a
reasonable consumer would associate the “Vichy check” pattern with products
made in France. (Id. at 3 & n.1.) Therefore, the conclusions of the Shalikar court
were justified by a substantially more suggestive product label than has been
alleged here. See Govea,
Whereas the Shalikar court concluded that it could not determine as a matter
of law the effect of the disclosure on the bottle neck that the beer was brewed in
Canada, see Shalikar, Inc.,
Finally, the Court notes that the Culver court expressly disagreed with the
conclusions in Shalikar. See Culver,
where the beer was brewed” and therefore the only reason they suggested a Japanese country of origin was because of the use of Japanese script on the packaging. Id. The Culver court further explained that Shalikar “fails to explain why the disclaimer on the bottleneck labels – which state in English (which presumably a reasonable consumer would be able to read) that the product was brewed and bottled in Canada – would not be sufficient to d ispel the consumers’ unexplained belief that the beer was made in Japan.” Id. Finally, the Culver court observed that the Shalikar court appeared to have done “what the California and federal courts have said one should not do, namely use a least sophisticated consumer as the template for the reasonable consumer.” Id. (internal quotation marks omitted.
In sum, the Court concludes that Plaintiff has failed to plausibly allege that a reasonable consumer would be deceived as to the Products’ country of origin. As set forth above, the label on the Products contains the French phrase “ Bonne Maman , ” which translates to “good mommy,” (Dkt. 29 at 3), and does not reference or suggest a geographic source, origin, or place of manufacture. The fact that the jar lids use a “Vichy check” pattern is insufficient because the FAC does not contain sufficient facts that plausibly support the inference that a reasonable established that World Market was deceived by the Products’ front label and instead has merely included a photo of a store shelf at a single store showing the Products on a shelf reserved for French products. (Dkt. 29 at 4.)
consumer would associate the “Vichy check” pattern with products made in France. (Id. at 3 & n.1.) Defendant’s advertising of the Products is also insufficient , (id. at 11-12), in light of the back label which clearly discloses the address where the specific product was produced. (Id. at 5.) Accordingly, Plaintiff’s claims under the UCL, FAL, and CLRA are dismissed with leave to amend.
B. Plaintiff Failed To Sufficiently Plead Scienter .
“ Regardless of the title given to a particular claim, allegations grounded in
fraud are subject to Rule 9(b) ’ s pleading requirements. ” Tomek v. Apple Inc., 636
F. App ’ x 712, 713 (9th Cir. 2016). Thus, the heightened pleading requirements of
Rule 9(b) apply to Plaintiff’s claims under the UCL, FAL, and CLRA, as well as
Plaintiff’s claims for negligent and intentional misrepresentation. See id. (“ Rule
9(b) applies to UCL and CLRA claims grounded in fraud.” (internal quotation
marks omitted)); Frenzel v. AliphCom,
1101, 1141 (C.D. Cal. 2003) (“ It is well-established in the Ninth Circuit that both claims for fraud and negligent misrepresentation must meet Rule 9(b) ’ s particularity requirements. ”).
Under Rule 9(b), “[a] verments of fraud must be accompanied by the who,
what, when, where, and how of the misconduct charged. ” Vess,
Here, Plaintiff has alleged the who, what, when, where, and how as follows: Who: Defendant. (Dkt. 29 at 8.)
What: The “ French Representations ,” which include the French brand name, “ Bonne Maman ,” and the use of red and white “Vichy print” on the lids of each product. (Id. at 3.) The FAC also alleges that “the Products were marketed or shelved with additional information to further reinforce the French Representations .” ( Id. at 11.)
When: The proposed class period is the relevant statute of limitations. (Id. at 17.)
Where: The proposed class covers all Products purchased in the State of California. (Id.)
How:
Plaintiff alleges that through its labeling, packaging, and advertising
of the Products, Defendant intentionally misleads consumers into believing that all
Bonne Maman
preserves and jellies are exclusively made in France. (Id. at 3.) As set forth above, Plaintiff’s allegations of the who , what, where, and how
are sufficient under Rule 9(b). However, the Court questions whether Plaintiff has
sufficiently alleged the “when” requirement under Rule 9(b) by simply referring to
the relevant statute of limitations, without specific start or end dates for each cause
of action. (Id. at 17.) Indeed, “[s]ome district courts in this circuit have determined
that a complaint which states, ‘during the applicable class period’ and then defines
that period with a specific date(s), sufficiently satisfies the ‘when’ requirement
under Rule 9(b).” Dawson v. Better Booch, LLC,
Regardless, the Court concludes that Plaintiff has failed to allege
scienter
in
compliance with Rule 9(b). Indeed, Plaintiff has only alleged
scienter
in a
conclusory manner by alleging that Defendant “intentionally misleads consumers,”
(id.); and “knew or should have known” it was making misleading representations .
(Id. at 16, 21, 25, 26.) These conclusory allegations of
scienter
are insufficient
without supporting facts that allow the Court to draw the reasonable inference that
Defendant knew its labeling and marketing were misleading. See Tomek, 636 F.
App ’ x at 713 ( “ Tomek has not alleged specific facts that allow the court to draw the
reasonable inference that Apple knew it was issuing misleading advertisements at
the time Tomek purchased his laptop. ” (internal quotation marks and brackets
omitted)); Wilson v. Hewlett-Packard Co.,
Plaintiff relies on Grimes v. Ralphs Grocery Co.,
5447959, at *8 (C.D. Cal. Oct. 4, 2012) ( “ Although the Ninth Circuit has held that a claimant could allege scienter simply by saying that scienter existed, that authority predated Twombly . . . . ” (internal quotation marks and citation omitted)). “ The requirement for pleading scienter is less rigorous than that which applies to allegations regarding the circumstances that constitute fraud because Rule 9(b) states that malice, intent, knowledge, and other condition of mind of a person may be averred generally. ” Oestreicher v. Alienware Corp., 544 F. Supp. 2d 964, 968 (N.D. Cal. 2008) (internal quotation marks omitted), aff’d , 322 F. App ’ x 489 (9th Cir. 2009) . “ Nonetheless, nothing in the Federal Rules of Civil Procedure relieves a plaintiff of the obligation to set forth facts from which an inference of scienter could be drawn. ” Id. (internal quotation marks omitted). Here, Plaintiff has not provided any facts to plausibly support the allegations of scienter in the FAC. Accordingly, Plaintiff’s claims under the UCL, FAL, and CLRA, as well as Plaintiff’s claims for negligent and intentional misrepresentation are dismissed with leave to amend.
C. The Proposed Class And Subclass Definitions Are Overbroad. Defendant contends that this Court should dismiss the class allegations because the proposed definitions are fatally overbroad by including individuals who could not have been harmed by Defendant’s allegedly misleading label, packaging, and advertising – namely, those who purchased varieties of the Products made in France and thus lack standing to bring claims against Defendant. [7] (Dkt. 37 at 27- 28.) By contrast, Plaintiff contends that the classes are properly limited to injured consumers and that Defendant’s argument improperly assumes that consumers who purchased French-made varieties of the Products were not harmed. (Dkt. 39 at 25.) Plaintiff appears to contend that deceived consumers can be injured “even where the specific item he purchased was not subject to the objectionable practice.” ( Id.) The FAC defines the proposed class and subclass as follows: California Class
All persons, who, within the relevant statute of limitations period, purchased any of the Products, in the State of California.
California Consumer Subclass
All persons, who, within the relevant statute of limitations period, purchased any of the Products for personal, family, or household purposes, in the State of California.
(Dkt . 29 at 17.) The FAC further defines “the Products” as including seven
varieties of preserves or jelly, some of which are made in a factory in Belgium, and
some of which are made in a factory in France. (Id. at 4, 9.) Thus, the class
definitions very clearly include consumers who purchased varieties of the Products
that were made in France. It is unclear to the Court based on the allegations in the
FAC how a consumer who purchased varieties of the Products that were made in
France suffered any harm. See Culver,
As set forth above, the proposed definition of the class and subclass in the
FAC includes consumers who could not possibly have suffered harm based on the
allegedly unlawful conduct. Plaintiff relies on Henriquez v. ALDI Inc., 2023 WL
2559200, at *5 (C.D. Cal. Feb. 7, 2023), and Koller v. Med Foods, Inc., 2015 WL
13653887, at *3-4 (N.D. Cal. Jan. 6, 2015) , for the proposition that “courts have
held that deceived consumers have been injured, even where the specific item he
purchased was not subject to the o bjectionable practice.” (Dkt. 39 at 25 -26.)
However, both cases are distinguishable. In Henriquez, the plaintiff alleged that the
defendant’s dolphin -safe representations about its tuna were misleading because
they led consumers to believe that the company’s practices were safer for dolphins
than they actually were. See Henriquez,
Similarly, in Koller , the plaintiff alleged that the defendant’s labeling of its
olive oil as “extra virgin” was misleading in part because the oil was bottled in
clear, non-ultraviolet protective bottles that do not protect it from degradation from
sunlight and heat over time. See Koller,
finding sufficient harm based on the plaintiff’s allegation that he would not have paid a premium for the olive oil had it not been for the defendant’s allegedly misleading labeling of its products as “extra virgin.” Id. at *3-4.
Therefore, in Henriquez and Koller, the alleged deception was that the
consumer was given a false assurance as to the safety or quality of all products that
might not have been true in any particular case. See Henriquez,
those cases, the plaintiffs alleged that the representation as to safety or quality of
any particular can of tuna or bottle of oil was not always true and the plaintiffs
relied on the false assurance of safety or quality to either purchase the product in
the first place, or to pay a premium. See Henriquez,
In sum, the Court concludes that the proposed class and subclass definitions
are overbroad and subject to being stricken under Rule 12(f). See, e.g., Barnes v.
Coca-Cola Co.,
D. Plaintiff May Plead Alternative Requests For Equitable Relief.
Plaintiff’s sixth claim for relief is based on quasi contract / unjust enrichment
/ restitution. (Dkt. 29 at 28-29.) Defendant contends that the Court should dismiss
this claim because it seeks equitable remedies and the FAC does not allege that
Plaintiff lacks an adequate remedy at law (
i.e.
, damages). (Dkt. 37 at 29.) Indeed,
the Ninth Circuit has held that a party “must establish that she lacks an adequate
remedy at law” before seeking equitable remedies in diversity actions such as
restitution. See Sonner v. Premier Nutrition Corp.,
Here, Plaintiff explains that her sixth claim for relief is merely plead in the
alternative to her claims seeking legal remedies. (Dkt. 39 at 27.) The Ninth Circuit
has held that “ we allow pleadings in the alternative — even if the alternatives are
mutually exclusive. ” PAE Gov’t Servs., Inc. v. MPRI, Inc. ,
E. Plaintiff Failed To Plausibly Allege Entitlement To Punitive Damages.
“[A] plaintiff may recover punitive damages in connection with a non-
contractual claim under California law if they establish by clear and convincing
evidence that the defendant is guilty of (1) fraud, (2) oppression or (3) malice.” Alacraz v. Marten Transp. Ltd.,
Here, the FAC includes only a bare request for punitive damages without
sufficient facts to plausibly suggest that Defendant’s actions warrant punitive
damages. (Dkt. 29 at 29.) Plaintiff points to allegations that Defendant
“intentionally and recklessly made misleading representations” and “knew or
should have known that” its labeling, packaging and ad vertising of the Products
was deceptive. (Dkt. 39 at 29-30 (citing Dkt. 29 at 16, ¶ 43; id. at 26, ¶ 92; id. at
28, ¶ 106).) However, these allegations are all conclusory and therefore
insufficient. See Kelley v. Corr. Corp. of Am.,
The only other allegation Plaintiff points to in the FAC is that Defendant carefully places “Product of France” on its consumer -facing front label, or when it cannot fit, prominently pronounced on the back label of its smallest jars. (Dkt. 39 at 29 (citing Dkt. 29 at 5-6, ¶¶ 9-10).) However, it is entirely unclear to the Court how the fact that certain of the Products prominently disclose their country of origin plausibly supports a request for punitive damages. Accordingly, Plaintiff’s prayer for punitive damages is stricken with leave to amend. [8]
V.
ORDER Consistent with the forgoing, Defendant’s Motion to Dismiss is GRANTED WITH LEAVE TO AMEND. (Dkt. 31.) On or before October 30, 2025, Plaintiff shall file a Second Amended Complaint (“SAC”) that attempts to remedy the identified defects.
DATED: September 30, 2025
________________________________________ HON. A. JOEL RICHLIN
UNITED STATES MAGISTRATE JUDGE
Notes
[1] Defendant’s initial motion to dismiss exceeded the word limit under the Local Rules and therefore the parties stipulated that Defendant would file a corrected motion to dismiss and the hearing on the motion would be continued to allow 28 days’ notice as re quired by the Local Rules. (Dkts. 34, 35.) Similarly, Defendant’s initial requests for judicial notice were missing page numbers on the exhibits as required by the Local Rules and therefore the parties stipulated that Defendant would file a corrected request for judicial notice. (Id.)
[2] Plaintiff relies on Sinatro v. Barilla Am., Inc.,
[3] The FAC includes a photo of a store shelf at the retailer World Market showing the 25 Products on a shelf reserved for French products. (Dkt. 29 at 4.) However, Plaintiff 26 does not allege that Defendant directed the retailer to display the Products in this manner and instead simply alleges that this example of displaying the Products is 27 “[i]ndicative of the materiality and consumer perce ption of the French 28 Representations .” ( Id.)
[4] Plaintiff relies on Broomfield v. Craft Brew All., Inc.,
[5] Plaintiff contends that the disclosure on the back label stating “Produced by Materne 24 Conflux S.A. – 1 Allee Des Cerisiers B-5151 – Floreffe – Belgium ” is not an “express statement” that the Products are made in Belgium and therefore Defendant should 25 state “Product of Belgium” on the back label of the varieties of the Products made in 26 Belgium. (Dkt. 39 at 16-17.) However, accepting this argument would mean imposing a labeling requirement inconsistent with federal law because 21 U.S.C. § 27 343(e)(1) only requires a product label to disclose “the name and place of business 28 of the manufacturer, packer, or distributor” of the product .
[6] Plaintiff contends that “Defendant’s overall brand image is unambiguously 26 deceptive, which precludes any consideration of the back label.” (Dkt. 39 at 7.) However, Plaintiff fails to cite any case with similar facts finding unambiguous 27 deception and instead argues that deception “is demonstrated by the undisputed fact 28 that even World Market was deceived by the label.” ( Id. at 8.) But Plaintiff has not
[7] Defendant also contends that Plaintiff lacks Article III standing to assert claims 26 regarding products she did not purchase. (Dkt. 37 at 26.) Because the Court concludes that Plaintiff has failed to state a claim even as to the products she did 27 purchase, the Court finds it unnecessary at this time to address whether Plaintiff has 28 standing to assert claims regarding products she did not purchase.
[8] The parties seems to agree that Plaintiff can only request punitive damages under 27 her CLRA and intentional misrepresentation claims. (Dkt. 37 at 30-31; Dkt. 39 at 28 29-30; Dkt. 40 at 18-19.)