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Ang v. Whitewave Foods Co.

United States District Court, Ninth Circuit

December 10, 2013

ALEX ANG and KEVIN AVOY, individually and on behalf of all others similarly situated Plaintiffs,


SAMUEL CONTI, District Judge.


Plaintiffs bring this putative class action in connection with Defendants' alleged misbranding of various products containing evaporated cane juice, including soymilk, almond milk, lowfat milk, and yogurt products. ECF No. 1 ("Compl."). Defendants now move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 17 ("MTD"). The motion is fully briefed, ECF Nos. 31 ("Opp'n"), 28 ("Reply"), [1] and appropriate for determination without oral argument per Civil Local Rule 7-1(b). For the reasons set forth below, Defendants' motion is GRANTED and this action is DISMISSED WITH PREJUDICE.


Plaintiffs target two types of products sold by Defendants: the "Silk Products" and the "Horizon Products" (collectively, the "Products"). The Silk Products are a variety of plant-based beverages, including "Silk Vanilla Soymilk, " "Silk Pure Almond All Natural Original Almond Milk, " and "Silk Pure Coconut Original Coconut Milk" (hereinafter, the "Silk Products"). See Compl. ¶¶ 6, 95. The Horizon Products are a variety of yogurt and milk products, including Organic Whole Vanilla Yogurt, Tuberz yogurt tubes (collectively, the "Horizon Yogurt Products"), and Horizon Organic Vanilla Lowfat Milk. The labels of all of the Products list "All Natural Evaporated Cane Juice" or "Organic Evaporated Cane Juice" (hereinafter, "evaporated cane juice" or "EJC") as an ingredient. Id.

Plaintiffs allege that the Products were misbranded in three ways. First, Plaintiffs claim that, pursuant to U.S. Food and Drug Administration ("FDA") guidelines, Defendants should have used the terms "sugar" or "dried cane syrup" instead of EJC on the Products' labels (the "ECJ Claims"). Second, Plaintiffs claim that Defendants misbranded the Silk Products by using names like "soymilk, " "almond milk, " and "coconut milk, " since the Silk Products are plant-based, and the FDA defines "milk" as a substance coming from lactating cows (the "Milk Claims"). Third, Plaintiffs allege that, pursuant to FDA guidelines, the Horizon Yogurt Products are mislabeled as yogurt because they contain evaporated cane juice, which is allegedly nothing more than sugar.

Plaintiffs filed this suit on April 29, 2013, and assert claims for (1)-(3) unfair, unlawful, and fraudulent practices in violation of the California Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code § 17200, et seq.; (4) & (5) misleading and deceptive advertising and untrue advertising in violation of the California False Advertising Law ("FAL"), Cal. Bus. & Prof. Code 17500, et seq.; (6) violation of the California Consumers Legal Remedies Act ("CLRA"), Cal. Civ. Code § 1750, et seq.; and (7) restitution based on unjust enrichment/quasi-contract. Plaintiffs bring this action on behalf of themselves and, pursuant to Rules 23(b)(2) and 23(b)(3), all persons in the United States who purchased the Products.

On April 8, 2913, before Plaintiffs filed the instant action, another food-labeling class action was filed against Defendants in U.S. District Court for the Southern District of Florida.[2] ECF No. 18 ("Defs.' RJN") Ex. 14 ("Singer Compl."). The plaintiff in the Florida action, Barbara Singer ("Singer"), targeted many of the same products as Plaintiffs. Compare Compl. ¶ 95 with Singer Compl. ¶ 13. Like Plaintiffs, Singer alleged that these products were misbranded because EJC "is nothing more than sugar, cleverly disguised." Singer Compl. ¶ 2. Singer also relied on many of the same FDA guidelines as Plaintiffs. Compare Compl. 48, 57-61 with Singer Compl. ¶¶ 16-19.

The parties to the Florida action subsequently reached a class settlement. On April 19, 2013, the Florida court preliminarily approved a settlement, defining the settlement class as all persons who, from January 1, 2005 to the present, purchased Defendants' ECJ-labeled products throughout the United States. RJN Ex. 16. The Court required class notice to be published in USA Today and on a website established for the purpose of providing notice, finding this notice to be the best practicable under the circumstances and to be fully compliant with the requirements of Federal Rule of Civil Procedure 23 and of due process. Id . Plaintiffs, absent class members in the Florida action, did not object to the settlement within the timeline set forth by the Florida court. On June 28, 2013, the Florida court granted final approval of the settlement (hereinafter, the "Singer Settlement").

Plaintiffs subsequently filed a motion to intervene in the Florida action and a motion to set aside the Singer Settlement. Those motions were denied on October 8, 2013. ECF No. 35-1 ("Oct. 8 Order"). Among other things, the Florida court found that Plaintiffs were provided with adequate notice of the Florida action and that Plaintiffs' interests were adequately represented in that action.


A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) "tests the legal sufficiency of a claim." Navarro v. Block , 250 F.3d 729, 732 (9th Cir. 2001). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1988). "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal , 556 U.S. 662, 679 (2009). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id . (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007)).


Defendants now move to dismiss the instant action on the grounds that it is barred by res judicata. Alternatively, Defendants argue that Plaintiffs' claims are preempted or are implausible. As set forth below, the Court finds that the final judgment in the Florida action precludes Plaintiffs from bringing their EJC and Yogurt Claims. ...

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