United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION TO DISMISS Docket No. 57
M. CHEN JUDGE
Ehder Soto, Heney Shihad, Dan Shiner, Julie Whitson, and
Mauri Sanders (collectively, “Plaintiffs”) filed
the instant putative class action against Defendants Safeway
Inc. and The Vons Companies, Inc. (collectively,
“Safeway”). Plaintiffs allege that Safeway and
Open Nature brand tuna cans (collectively, “Safeway
tuna”) sold at Defendants' retail stores are
underfilled and underweight. Docket No. 53
(“Compl.”) at ¶ 1. The consolidated
complaint asserts nine causes of action: (1) Breach of
Express Warranty, (2) Breach of Implied Warranty of
Merchantability, (3) Unjust Enrichment, (4) Fraud, (5)
Fraudulent Concealment, (6) Negligent Misrepresentation, (7)
Violation of California's Consumers Legal Remedies Act
(CLRA), Cal. Civ. Code § 1750 et seq., (8) Violation of
California's False Advertising Law (FAL), Cal. Bus. &
Prof. Code § 17500 et seq., and (9) Violation of
California's Unfair Competition Law (UCL), Cal. Bus.
& Prof. Code § 17200 et seq. Currently pending
before the Court is Defendants' motion to dismiss Count 3
(Unjust Enrichment) and Count 6 (Negligent Misrepresentation)
of the complaint. Docket No. 57 (“Mot.”).
Court heard argument on the Motion on June 30, 2016. Having
considered the parties' briefs and the arguments
presented at the hearing, as stated at the hearing, the Court
GRANTS in part and DENIES in part Defendants' motion.
This order memorializes and supplements that ruling.
Rule 12(b)(6), a party may move to dismiss a complaint for
failure to state a claim upon which relief can be granted.
Fed.R.Civ.P. 12(b)(6). Such a motion challenges the legal
sufficiency of the claims alleged in the complaint. See
Parks Sch. Of Bus., Inc. v. Symington, 51 F.3d 1480,
1484 (9th Cir. 1995). In considering a Rule 12(b)(6) motion,
a court must take all allegations of material fact as true
and construe them in the light most favorable to the
nonmoving party, although “conclusory allegations of
law and unwarranted inferences are insufficient to avoid a
Rule 12(b)(6) dismissal.” Cousins v. Lockyer,
568 F.3d 1063, 1067 (9th Cir. 2009). While a complaint need
not allege detailed factual allegations, it “must
contain sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). The plausibility standard is not
“a probability requirement, but it asks for more than a
sheer possibility that a defendant has acted
unlawfully.” Id. at 678 (quoting
Twombly, 550 U.S. at 556).
argue that Plaintiff's unjust enrichment claim should be
dismissed for two reasons. First, Defendants argue that there
is no cause of action for unjust enrichment under California
law. Mot. at 4. Second, Defendants contend that the claim and
relief sought is duplicative of Plaintiffs' other claims.
Id. at 5. The Court rejects both arguments.
unjust enrichment is not a standalone cause of action in
California, “a court may construe the cause of action
as a quasi-contract claim.” Astiana v. Hain
Celestial Group, Inc., 783 F.3d 753, 762 (9th Cir. 2015)
(internal citation omitted). Under this standard, the Ninth
Circuit found that plaintiffs stated a valid quasi-contract
claim when they alleged that defendants enticed them to
purchase defendants' products through false and
misleading labeling and that defendants were unjustly
enriched as a result. Id. Here, Plaintiffs similarly
allege that they purchased Safeway tuna based on
Defendants' misrepresentations and that Defendants have
been unjustly enriched. Compl. at ¶ 82. This statement
is sufficient to state a quasi-contract claim, a claim not
expressly asserted in the complaint.
Plaintiffs are permitted to plead unjust enrichment, even if
it were duplicative of their other claims, at the pleading
stage. The Ninth Circuit has held that “even if a cause
of action [for unjust enrichment] is duplicative of or
superfluous to other claims, this is not grounds for
dismissal.” Astiana, 783 F.3d at 762-63. In
light of Astiana, a majority of cases in this
district have permitted unjust enrichment claims even when
they are duplicative of other claims. E.g., Romero v.
Flowers Bakeries, LLC, Case No. 14-cv-05189-BLF, 2015 WL
2125004, at *9 (N.D. Cal. May 6, 2015) (permitting an unjust
enrichment claim even though it might be duplicative of the
plaintiff's other claims under California's Unfair
Competition Law, False Advertising Law, and Consumer Legal
Remedies Act); Valencia v. Volkswagen Grp. of Am.
Inc., 119 F.Supp.3d 1130, 1143 (N.D. Cal. 2015) (holding
that plaintiffs are permitted to plead an unjust enrichment
claim in the alternative even if it is questionable whether
it provides any prospect for relief independent of other
causes of actions already alleged).
rely on Dickey v. Advanced Micro Devices, Inc., Case
No. 5:15-cv-04922-RMW, 2016 WL 1375571, to argue that
Plaintiffs' unjust enrichment claim should be dismissed.
Mot. at 4-5. In Dickey, the court dismissed an
unjust enrichment as superfluous because the plaintiff
additionally pleaded a breach of warranty claim, which
covered the same subject matter. 2016 WL 1375571, at *8.
Although the court acknowledged Astiana's
holding that an unjust enrichment claim may be recognized as
a valid quasi-contract claim, the court did not discuss or
apply Astiana's further holding that courts
should not dismiss an unjust enrichment claim on the ground
that it is duplicative of other claims. Id. Here,
the Court is obliged to follow the precedent set in
Astiana and will permit Plaintiffs' unjust
enrichment at this stage even if it may be duplicative of
also move to dismiss Plaintiffs' claim for negligent
misrepresentation because it is barred by the economic loss
rule. Mot. at 5. The California Supreme Court has recognized
that “[t]he economic loss rule requires a purchaser to
recover in contract for purely economic loss due to
disappointed expectations, unless he can demonstrate harm
above and beyond a broken contractual promise.”
Robinson Helicopter Co., Inc. v. Dana Corp., 34
Cal.4th 979, 988 (2004); see also In re iPhone
Application Litig., 844 F.Supp.2d 1040, 1064 (N.D. Cal.
2012) (citing the same rule from Robinson). The
purpose of this rule is to prevent “the law of contract
and the law of tort from dissolving one into the
other.” Robinson Helicopter, 34 Cal.4th at
988. Thus, if a purchaser seeks damages for economic loss,
without any claim of personal injury or damages to other
property, he must recover in contract. Id.
Plaintiffs plead no facts that demonstrate that they suffered
any damages beyond economic loss. Plaintiffs conceded as much
in their opposition and during the hearing. Thus,