The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER DENYING MOTION TO STAY ACTION; GRANTING AMENDED COMPLAINT WITH MOTION TO DISMISS SECOND
KFC Corporation and Yum! Brands, Inc. (collectively "KFC") move to dismiss the second amended consumer class action complaint ("SAC") filed by Plaintiff Deborah A. Fraker. Plaintiff separately moves to stay the action pending resolution by the California Supreme Court of a case raising an issue of federal preemption of state tort actions. All motions are opposed. Pursuant to Local Rule 7.1(d)(1), these motions are appropriate for decision without oral argument. For the reasons set forth below, the court denies the motion to stay and grants the motion to dismiss with prejudice and without leave to amend. The Clerk of Court is instructed to close the file.
Plaintiff brings this consumer class action against KFC under the Class Action Fairness Act of 2005. "KFC uses partially hydrogenated vegetable oil in its cooking process." (SAC ¶11). Plaintiff explains that partially hydrogenated vegetable oil contains trans fatty acids which raise "the levels of total blood cholesterol and LDL cholesterol . . . . According to the United States Food and Drug Administration ("FDA"), there is a direct, proven relationship between diets high in trans fat content and LDL ("bad") cholesterol levels and, therefore, an increased risk of coronary heart disease." (SAC ¶12).
Plaintiff alleges that KFC's products are high in trans fat content. (SAC ¶18). Plaintiff alleges that KFC has disclosed the trans fat content of its food products on its website and certain restaurant locations. Id. KFC represents that its pot pies contain 14 grams of trans fat and other products contain between 4.0 grams and 4.5 grams of trans fat. Plaintiff represents that on January 1, 2006, the FDA began requiring food companies to list trans fat content on packaged foods but that foods served at restaurants are not subject to these requirements. (SAC ¶14). Pursuant to the National Academy of Health's Institute of Medicine, the "only safe level of trans fat in the diet is zero, and in 2004, an FDA advisory panel concluded that trans fat is more harmful to humans than saturated fat." (SAC ¶16).
While other fast food companies have begun using, or have made plans to begin using, oils without trans fats, KFC delayed changing over "to such oils because of the modest relative costs involved in converting its restaurants to oils without trans fats, and the slightly higher costs of some such oils." (SAC ¶20). Plaintiff alleges that KFC announced that it "will replace the trans fat-laden hydrogenated oils it uses with healthier soybean oil by April 2007." Id.
Plaintiff alleges that KFC advertises that "We still take pride in doing things The Colonel's way, utilizing only the highest quality ingredients, innovative recipes, and time-tested cooking methods." KFC also represents that "it provides the 'best food,' and that its food can be part of a healthy lifestyle, stating that, 'The good news is that all foods can fit into a balanced eating plan. That includes tacos, pizza, chicken, seafood and burgers.'" KFC also states that "You can enjoy 'fast food' as part of a sensible balanced diet." (SAC ¶23).
Based upon these generally described allegations, Plaintiff asserts seven claims for violation of California's Unfair Competition Law, Bus. & Prof. Code §§ 17200; violation of California's False Advertising Law, Bus. & Prof. Code §§ 17500; negligent misrepresentation; intentional misrepresentation; breach of implied warranty fo fitness for purpose; unjust enrichment; and for violation of California's Consumer Legal Remedies Act. For a second time, KFC moves to dismiss all claims.
In its October 19, 2006 Order granting KFC's motion to dismiss the first amended complaint ("Order"), the court concluded that the representations at issue were not actionable. Among other things, the court noted that "[n]o reasonable consumer would rely upon the statements as specific representations as to health, quality, or safety," the statements are non-actionable puffery, and the statements lack the sort of positive assertions of fact required to state a claim under any of the causes of action alleged by Plaintiff. (Order at p. 6:7-10).
While the SAC sets forth the same allegedly actionable representations, Plaintiff now alleges that the statements violate various state and federal statutes and regulations pertaining to food and drugs, including 21 U.S.C. § 378, Cal. Health and Safety Code § 110660, and 21 C.F.R. §§ 101.19(a) and 101.14. (SAC ¶25-27).
Federal Rule of Civil Procedure 12(b)(6) dismissal is proper only in "extraordinary" cases. United States v. Redwood City, 640 F.2d 963, 966 (9th Cir. 1981). Courts should grant 12(b)(6) relief only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Courts should not dismiss a complaint "unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle [the party] to relief." Moore v. City of Costa Mesa, 886 F.2d 260, 262 (9th Cir. 1989) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)), cert. denied, 496 U.S. 906 (1990). The defect must appear on the face of the complaint itself. Thus, courts may not consider extraneous material in testing its legal adequacy. See Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1482 (9th Cir. 1991). The courts may, however, consider material properly submitted as part of the complaint. See Hal Roach Studios, Inc. v. Richard Feiner and Co., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1989).
Finally, courts must construe the complaint in the light most favorable to the plaintiff. See Concha v. London, 62 F.3d 1493, 1500 (9th Cir. 1995), cert. dismissed, 116 S.Ct. 1710 (1996). Accordingly, courts must accept as true all material allegations in the complaint, as well as reasonable inferences to ...