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Sugawara v. Pepsico

May 20, 2009

JANINE SUGAWARA, PLAINTIFF,
v.
PEPSICO, INC., DEFENDANT.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Plaintiff initiated this putative class action on June 9, 2008, and, on September 23, 2008, filed the operative First Amended Complaint ("FAC") alleging causes of action arising under California Business & Professions Code §§ 17200, et seq., and 17500, et seq., for Intentional Misrepresentation, Breach of Express Warranty, Breach of Implied Warranty, and violation of the Consumer Legal Remedies Action, California Civil Code § 1770. Presently before the Court is Defendant's Motion to Dismiss the FAC. For the following reasons, Defendant's Motion is granted.*fn1

BACKGROUND*fn2

Plaintiff is an individual consumer and resident of California. Defendant manufactures, markets, and promotes "Cap'n Crunch with Crunchberries" cereal ("the Product"). Defendant merged with The Quaker Oats Company ("Quaker") in 2001, and Quaker is now a unit of Defendant.

In addition to the use of the word "berries" in the Product name, the Product's principal display panel ("PDP"), the portion of the Product box designed to face consumers as they shop in a market aisle, features the Product's namesake, "Cap'n Crunch" thrusting a spoonful of "Crunchberries" at the prospective buyer.

The Crunchberries are pieces of cereal in bright fruit colors, shaped to resemble berries. While close inspection reveals that the Crunchberries on the PDP are not really berries, Plaintiff contends that the colorful Crunchberries, combined with use of the word "berry" in the Product name, convey the message that Cap'n Crunch is not all sugar and starch, but contains redeeming fruit. This message is allegedly supplemented and reinforced by additional marketing that represents that "Crunch Berries is a combination of Crunch biscuits and colorful red, purple, teal and green berries."

In actuality, the Product contains no berries of any kind. If the consumer takes the box from the shelf and examines the fine print of the ingredient list, he or she will discover that the only fruit content is a touch of strawberry fruit concentrate, twelfth in order on the ingredient list.

Accordingly, Plaintiff contends, inter alia, that Defendants' marketing of the Product is deceptive and likely to mislead and deceive a reasonable consumer. Indeed, during the past four years, Plaintiff alleges she purchased the Product in large part because she had been exposed to advertising and representations of Defendant. She was allegedly misled by the packaging and marketing, which she argues convey the message that the Product contains real, nutritious fruit. Plaintiff contends that she trusted Defendant's Quaker label because that company has a long history of producing wholesome breakfast cereals.

Since Plaintiff began purchasing the Product, the Strategic Alliance for Healthy Food and Activity Environments published the results of a study examining the ingredients of widely advertised foods with references to fruit on the packaging. The study concluded, among other things, that despite advertising and packaging that suggests the presence of fruit, more than half of the food products studied, including the Product at issue here, contain no fruit at all. According to Plaintiff, had she known that the Product contained no fruit, she would not have purchased it.

STANDARD

On a motion to dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to "give the defendant fair notice of what the...claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, --- U.S. ----, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitlement to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Id. at 1964-65 (internal citations and quotations omitted). Factual allegations must be enough to raise a right to relief above the speculative level. Id. at 1965 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004) ("The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action")).

A court granting a motion to dismiss a complaint must then decide whether to grant leave to amend. A court should "freely give" leave to amend when there is no "undue delay, bad faith[,] dilatory motive on the part of the movant, . . . undue prejudice to the opposing party by virtue of . . . the amendment, [or] futility of the amendment...." Fed. R. Civ. P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is denied only when it is clear the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992).

ANALYSIS

1. Consumer Legal Remedies Act ...


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