ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
FILED UNDER SEAL
Re: ECF No. 163
In this putative class action about potato chips,
Defendant Frito-Lay, North America, Inc. (“Frito-Lay”) has filed a motion for summary judgment. Because the evidence demonstrates that -neither Wilson, nor Campen relied on Frito-Lay’s allegedly objectionable packaging, - the Court will grant the motion.
Mr. Wilson and Mr. Campen are California residents who purchased Lay’s potato chip products between March 29, 2008 to the present. Id ¶¶ 1-2, 26-27. Although Plaintiffs initially challenged various statements appearing on several Frito-Lay products, the only remaining claims before the Court are: (1) Mr. Wilson’s challenge to the “Og Trans Fat” label on Lay’s Classic Potato Chips; and (2) Mr. Campen’s challenge to both the “Og Trans Fat” label and the “Made with All Natural Ingredients” label on the following products: Lay’s Classic Potato Chips, Lay’s Honey Barbecue Potato Chips, Lay’s Kettle Cooked Mesquite BBQ Potato Chips, Cheetos Puffs, and Frito’s Original Corn Chips.
In their Second Amended Complaint, Plaintiffs allege that the “Og Trans Fat” label is misleading because the challenged products contained more than 13 grams of fat, and therefore Food and Drug Administration (“FDA”) regulations required a disclosure statement referring consumers to the back panel for information regarding total fat content. SAC, ECF No. 47 ¶¶ 88-94. Plaintiffs further allege that, because of this unlawful “Og Trans Fat” label, “Plaintiffs were misled into the erroneous belief that the product only made positive contributions to their diet and did not contain one or more nutrients like total fat at levels in the food that may increase the risk of disease or health related condition.” Id. ¶ 103. Mr. Campen also alleges that the “Made with All Natural Ingredients” label is misleading because the challenged products contain artificial and synthetic ingredients, such as yeast extract, caramel col- or, citric acid, maltodextrin, and chemical preservatives. Id. ¶¶ 45-53, 55-57.
Frito-Lay removed both the “Og Trans Fat” and “Made with All Natural Ingredients” labels from its products in 2012. ECF No. 167 at 7.
Based on these alleged misrepresentations, Plaintiffs assert claims under California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq., California’s False Advertising Law (“FAL”), Cal. Bus. & Prof. Code § 17500 et seq., and the Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1750 et seq. Id. ¶¶ 189-245. The Court
Discovery has been closed since February 2015, and Frito-Lay now moves for summary judgment in its favor as to all of Plaintiffs’ claims. ECF No. 117; ECF No. 163.
II. REQUESTS FOR JUDICIAL NOTICE
Federal Rule of Evidence 201(b) authorizes courts to take judicial notice of facts that are “not subject to reasonable dispute” and that are “capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.” Fed. R. Evid. 201(b); United States v. Ritchie,
Frito-Lay requests that the Court take judicial notice of letters sent between the Center for Science in the Public Interest and the FDA in 2006 (Exhibits A and B), copies of FDA food labeling guidance (Exhibits C, E, H, and I), copies of warning letters sent from the FDA to other companies (Exhibits D and F), and an amicus curiae brief filed by Congressman Henry Waxman and former FDA Commissioner David Kessler in California Restaurant Ass’n v. San Francisco, Case No. 08-cv-03247, ECF No. 25-1 (N.D. Cal.). ECF No. 165.
Plaintiffs similarly request that the Court take judicial notice of several FDA warning letters issued to other companies during the relevant time period (Exhibits 14-15,18,19-27). ECF No. 169.
The Court grants both requests for judicial notice in their entirety. Courts routinely take judicial notice of similar FDA guidance documents, many of which also appear on the FDA’s public website. See, e.g., Gustavson v. Wrigley Sales Co.,
Plaintiffs only object to Frito-Lay’s request with respect to Exhibit A, on the ground that it is a letter from a public interest group to the FDA, and not the other way around. ECF No. 169. However, the letter from the Center for Science in the Public Interest to the FDA precipitated the FDA’s response letter in Exhibit B, and thus provides context for Exhibit B. Moreover, Exhibit A is produced for the purpose of showing that Frito-Lay did not have fair notice of the FDA’s requirements during the relevant time period. Therefore, the Court takes judicial notice of Exhibit A to “indicate what was in the public realm at the time, not whether the contents of [the letter] were in fact true.” Von Saher v. Norton Simon Museum of Art at Pasadena,
III. SUMMARY JUDGMENT
A. Legal Standard
Summary judgment is proper when a “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by” citing to depositions, documents, affidavits, or other materials. Fed. R. Civ. P. 56(c)(1)(A). A party also may show that such materials “do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(B). An issue is “genuine” only if there is sufficient evidence for a reasonable fact-finder to find for the non-moving party. Anderson v. Liberty Lobby, Inc.,
Where the party moving for summary judgment would bear the burden of proof at trial, that party bears the initial burden of producing evidence that would entitle it to a directed verdict if uncontroverted at trial. See C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc.,
B. Applicable Law
To prevail on their causes of action under the UCL, FAL, and the CLRA, Plaintiffs must demonstrate that they actually relied on the challenged misrepresentations and suffered economic injury as a result of that reliance. See In re iPhone Application Litig.,
“Moreover, a presumption, or at least an inference, of reliance arises wherever there is a showing that a misrepresentation was material” — i.e., “if a reasonable man would attach importance to its existence or nonexistence in determining his choice of action in the transaction in question.” Id. at 327,
C. Summary Judgment as to Mr. Wilson
Frito-Lay moves for summary judgment on Mr. Wilson’s claims on the following grounds: (1) Mr. Wilson did not rely on the “Og Trans Fat” statement in purchasing Lay’s Classic Potato Chips; (2) Mr. Wilson provided no factual support for his theory of deception; (3) Mr. Wilson cannot show any entitlement to monetary relief; and (4) Mr. Wilson cannot show any entitlement to injunctive relief. ECF No, 163 at 22-27.
The Court agrees that Mr. Wilson cannot meet his burden of showing that he relied on the “0 grams trans fat” label when purchasing Lay’s Classic potato chips, and therefore grants summary judgment to Frito-Lay as to Mr. Wilson’s claims on that ground.
The California Supreme Court has explained that the purpose of Proposition 64, which amended the UCL standing requirements, was to discourage “[flrivolous unfair competition lawsuits,” including those in which attorneys “ ‘[fjile lawsuits where no client has been injured in fact,’ [fjile lawsuits for clients who have not used the defendant’s product or service, viewed the defendant’s advertising, or had any other business dealing with the defendant ...” Tobacco II,
In light of this goal, courts have concluded that “requiring nothing more than a token purchase would undermine Proposition 64’s reform purposes” in cases where “would-be litigants- at the 'direction of attorneys deliberately seek out statutory violations.”' Cattie v. Wal-Mart Stores, Inc.,
Mr. Wilson’s deposition testimony establishes that the challenged Frito-Lay label statements played no part at all in his purchases of Frito-Lay’s products. Despite purchasing Lay’s Classic potato chips five or six times a year since he was a teenager, Mr. Wilson admitted at his deposition that he “didn’t notice” any label statements on Lay’s Classic Potato Chips between 2000-2010. Wilson Depó., ECF No. 164-7 at 47:5-12, 48:23-24, 54:25-55:19, 56:3-12. He further testified that he purchased Lay’s potato chips for other rear sons — namely, because “[t]hey tasted good,” he liked the Lay’s brand, he liked the “[sjunny,, happy” packaging, and “they go good with onion dip ... or dilly dip.” Id. at 47:17-48:3, 48:14-48:18. When asked whether he remembered if the chips had any label statements between 2010 and 2012, Mr. Wilson responded, “I think that’s
Mr. Wilson attempts to create a triable factual issue by pointing to deposition testimony elicited on re-direct. ECF No. 167 at 16. Specifically, Mr. Wilson points to the following testimony:
BY MR. GORE:
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Q. Did you go out and make a one-time purchase of Lay’s Classic Potato Chips on the instruction of your attorney, Sparky Lovelace, for the purpose of filing this lawsuit?
A. No.
MR. MELTZER: Objection to form and also calls for privileged testimony, potentially.
Q. Go ahead.
A. No, sir.
Q You had, in fact, purchased Lay’s Classic Potato Chips with the 0 grams trans fat label on a number of occasions before you ever discussed the package with your attorney, Sparky Lovelace; correct?
MR. MELTZER: Objection to form.
THE WITNESS: That’s correct. And I believe we went over that with him as well. Yes, that is absolutely correct.
Wilson Depo., ECF No. 164-7 at 32,119:8-120:1. Mr. Gore’s questions to his own client were improper leading questions of a non-hostile witness, and the Court therefore properly excludes.the answers from its consideration of this motion. Fed. R. Evid. 611(c); Bixby v. KBR, Inc., No. 3:09-CV-632-PK,
In sum, Mr. Wilson’s deposition testimony establishes that he did not notice any label statements on Frito-Lay’s chips between 2000-2010, and he therefore cannot establish that he relied on the allegedly misleading “0 grams trans fat” label during this time. See Wilson v. Frito-Lay N. Am., Inc.,
The Court therefore grants summary judgment to Frito-Lay on Mr. Wilson’s claims.
D. Summary Judgment as to Mr. Campen
Frito-Lay moves for summary judgment on Mr. Campen’s claims on the following grounds: (1) Mr. Campen abandoned his “0 grams Trans Fat” claims; (2) Mr. Cam-pen did not rely on the natural label; (3) Mr. Campen is not entitled to monetary relief; (4) Mr. Campen is not entitled to injunctive relief; and (5) Mr. Campen cannot show that reasonable consumers are likely to be deceived by the challenged statements. ECF No. 163.
1. “0 grams Trans Fat” Claims
Frito Lay moves for summary judgment on Mr. Campen’s claims challenging the “0 grams Trans Fat” statement on the ground that his deposition testimony abandons those claims or otherwise establishes that he cannot satisfy his burden with respect to the reliance and injury elements for those claims. ECF No. 163 at 14-16. The Court agrees and accordingly grants Frito-Lay’s motion for summary judgment on those claims.
Mr. Campen abandoned his challenge to the “0 grams Trans Fat” statement, thus narrowing his claims in this lawsuit to those challenging the “all natural” label. Mr. Campen gave the following responses at his deposition:
Q. What products are you challenging in this case?
A. Products — the label that says “all natural.”
Q. And are there any other label statements that you are challenging to this case?
A. No.
Campen Depo., ECF No. 164-6 at 16, 56:9-15. Courts have narrowed a plaintiffs claims in similar circumstances. See, e.g., Alcala v. Monsanto Co., No. C-08-04828 PJH (DMR),
Mr. Campen responds that he identified “0 grams Trans Fat” as a challenged label
The interrogatory responses are not admissible. Mr. Campen did not sign or verify these interrogatory responses when they were served on Frito-Lay in April 2014. See Rule 33(b). And “all responses to interrogatories and requests for admission must be verified — that is, bear plaintiffs signature attesting under penalty of perjury that his responses are true and correct — in order to be an admissible form at summary judgment or trial.” Blevins v. Marin, No. 11-CV-03475-KJN P,
Moreover, even if the interrogatory responses were admissible, neither those responses nor the declaration are sufficient to revive Mr. Campen’s “0 grams Trans Fat” claims or otherwise create a genuine issue of material fact. “The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony.” Kennedy v. Allied Mut. Ins. Co.,
Again, even -if the Court considered those documents, Frito-Lay would still be entitled to summary judgment on Cam-pen’s “0 grams Trans Fat” claims, because there is no evidence that Mr. Campen actually relied on any “0 grams Trans Fat’’ label in making a purchasing decision. •
Here, Mr. Campen’s declaration and interrogatory response similarly fail to provide any specific facts indicating that he relied on the “0 grams Trans Fat” label. His post-deposition declaration simply states that he is “challenging the ‘All Natural’ and ‘0 grams trans fat’ labels” and that he has not “waived, abandoned or dismissed either of these claims.” ECF "No. 167-2 ¶ 2. And his interrogatory responses just include the conclusory statement that “Plaintiff was misled by the statement and reasonably relied on it,” which is insufficient to create a genuine dispute of material fact. ECF No. 167-8 at 5-6. Neither of these statements provide specific facts to indicate that the “0 grams Trans'. Fat” label was a substantial factor in Campen’s decision to purchase Frito-Lay’s products.
Outside of the declaration and interrogatory responses, which are inadmissible and/or flawed as outlined above, Mr. Cam-pen points to no evidence in the record to show that he in any way relied on, or was injured by, the “0 grams Trans Fat” statement on Frito-Lay’s packaging. See ECF No. 167 at 10-11. Because Mr. Campen would bear the burden of proving these elements at trial, the Court grants Frito-Lay’s motion for summary judgment as to Campen’s “0 grams Trans Fat” claims.
2. Natural Label Claims
Frito-Lay also moves for summary judgment on Mr. Campen’s claims challenging the “Made with All Natural Ingredients” label on the ground that Mr. Campen cannot prove that he relied on that statement when buying Lay’s Honey Barbecue and Kettle Cooked Mesquite BBQ potato chips. ECF No. 163 at 16-19. Because the undisputed evidence shows that Mr. Campen did not rely on the “all natural” label, the Court will grant Frito-Lay’s motion for summary judgment as to these claims.
Frito-Lay points to several statements throughout Mr, Campen’s testimony that strongly . suggest that the “all natural” statement was not a substantial factor in his decision to purchase the products. Id. at 17. 'For example, when asked “Why
In response, Mr. Campen argues that Frito-Lay mischaracterizes his testimony. ECF No. 167 at 11-12. Specifically, he argues that his “testimony was that he did not read and rely on the natural statement between 2008 and 2010 because it was not on Frito-Lay ⅛ products during that time period.” Id. (emphasis in original). Although one portion of Mr. Campen’s testimony was temporally limited in this way, the rest of Mr. Campen’s testimony — and all of his testimony as outlined above — was not similarly limited to the 2008-2010 time frame. Therefore, Mr. Campen’s mischar-acterization argument fails.
Next, Mr. Campen points to the following deposition testimony on re-direct in an attempt to create a triable issue of fact as to whether he relied on the “all natural” label:
Q. Mr. Campen, on all the Frito-Lay products that you pm-chased, was the natural label a substantial factor in your purchase decision?
A. When I saw that on the chip or on the packaging, once I saw that, I thought those would be healthier than another chip without it.
Campen Depo., ECF No. 164-6 at 24, 88:5-10.
Frito-Lay responds that “Mr. Campen’s statement about what he thought the labels meant — that they were ‘healthier’ in comparison to other products — is not a statement about reliance.” ECF No. 163 at 18 (emphasis in original). Frito-Lay further argues that this statement does not “negate his repeated and unequivocal statements that he did not rely on the ‘natural’ label statement to make a purchase decision.” Id. (emphasis in original).
The Court agrees with Frito-Lay. Just because Mr. Campen testified that he thought the “all natural” label meant that the chips were “healthier” than other chips, it does not follow that Mr. Campen relied on the “Made with All Natural Ingredients” label when purchasing the chips. In Major v. Ocean Spray Cranberries, Inc., the plaintiff testified at her deposition that she did not purchase defendant’s product because of the allegedly misleading labels. No. 5:12-cv-03067-EJD,
Like the plaintiff in Major, Mr. Campen testified at his deposition that he did not rely on the “all natural” label when making his purchasing decision. Campen Depo., ECF No. 164-6 at 24, 87:17-25 (affirming that it was “fair to say that the natural label isn’t the reason that [he] bought them” and “that things like taste and that it was a good snack were the reasons [he] purchased them”). And, like the plaintiff in Major, Mr. Campen attempts to rely on his deposition testimony that he thought the chips were “healthier” to survive summary judgment. However, this is not the theory of deception that Mr. Campen pleaded in the operative complaint. See SAC, ECF No. 47 ¶ 46, 55-57 (alleging that the “all natural” label misled him into thinking that the products were “‘made with all natural ingredients’ or ‘all natural’ ” when, in fact, they contained ingredients that were artificial or synthetic). The relevant question is whether Mr. Campen relied on the “all natural” label, “not to mean some general level of healthiness,” but rather to mean that the products were made with all natural ingredients. Major,
The Court grants Frito-Lay’s motion for summary judgment as to Mr. Cam-pen’s claims challenging Frito-Lay’s “all natural” label.
CONCLUSION
For the reasons outlined above, the Court grants Frito-Lay’s motion for summary judgment as to all • of Plaintiffs’ claims challenging Frito-Lay’s “0 grams Trans Fat” and “all natural” labels.
IT IS SO ORDERED.
Notes
. This order is filed under seal provisionally because it refers to sealed material submitted by the parties in connection with the motion. The Court will unseal the order unless one of the parties files a request that the order remain sealed. Any such request must be filed by June 2, 2017 and must demonstrate compelling reasons for the sealing of the order. E.g., Ctr. for Auto Safety v. Chrysler Grp., LLC,
. Plaintiffs previously filed a motion for class certification, but that motion continues to be stayed pending the Ninth Circuit’s decision in Jones v. Conagra Foods, Inc., No. 14-16327 (9th Cir. filed July 14, 2014). See ECF No. 119 (granting stay); ECF No. 159 (partially lifting stay and reinstating motion for summary judgment).
. Plaintiffs’ opposition clarifies that "Plaintiffs are not challenging a ‘Natural’ claim on Cheetos Puffs or any Frito’s com chip. Plaintiffs are, however, challenging Frito Lay’s use of '0g Trans Fat' on those products.” ECF No. 167 at 11 n. 5.
. This case was reassigned from Judge Conti to the undersigned on November 3, 2015.
. In the deposition transcripts in the case, the parties and counsel uniformly refer to Dewitt Marshall Lovelace, Sr., one of Plaintiff’s attorneys of record, by his nickname.
. Neither Mr. 'Wilson nor Mr. Campen’s “0 grams Trans Fat” claims survive summary judgment due to evidentiary deficiencies. As a result, the Court does not need to address Frito-Lay’s additional argument that those claims fail as a matter of law,
. The Ninth Circuit recently affirmed the district court’s summary judgment order without reaching the question of reliance. Major v. Ocean Spray Cranberries, Inc.,
. In light of its conclusions regarding Plaintiffs’ lack of reliance, the Court does not address Frito-Lay’s remaining arguments.