United States District Court, S.D. California
WILLIAM BECKMAN and LINDA GANDARA, individuals, on behalf of themselves, and all persons similarly situated, Plaintiffs,
ARIZONA CANNING COMPANY, LLC, a Delaware limited liability company; and DOES 1 to 10 inclusive, Defendant.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO DISMISS PLAINTIFFS' SECOND
AMENDED COMPLAINT [DOC. NO. 30]
John A. Houston United States District Court
matter comes before the Court on Defendant Arizona Canning
Company LLC's (“ACC” or
“Defendant”) motion to dismiss Plaintiffs William
Beckman and Linda Gandara's (“Plaintiffs) second
amended complaint (“SAC”). Doc. No. 30.
Defendant moves to dismiss pursuant to Federal Rules of Civil
Procedure (“Fed. R. Civ. P.”) 8, 9(b),
12(b)(1), and 12(b)(6). The motion has been fully briefed.
Along with its motion to dismiss, Defendant filed a request
for judicial notice. Doc. No. 30-2. Having
considered the parties' submissions, oral argument and
for the reasons set forth below, Defendant's request for
judicial notice is GRANTED in part and DENIED in part and the
motion to dismiss is GRANTED in part and DENIED in part.
purchased several cans in various sizes of Defendant's
Sun Vista canned pinto beans. SAC at 3 ¶7. Sun Vista
Beans are sold in 15 oz., 29 oz., 40 oz., and 108 oz. cans,
as well as in an 8 pack of 15 oz. cans. Id. at 6.
Each can of Sun Vista beans, regardless of size, lists water
as the first ingredient within the nutrition facts panel,
indicates a serving size of one-half cup (4 oz), includes the
language "Heat and Serve", and displays an image of
a bowl of whole plump beans as seen below. SAC at 8 ¶
whole plump beans are not what the consumer sees when
emptying the can's contents. Unlike the image advertised
on the principal display panel, consumers receive mostly
water, with a portion of beans fully submerged and
undetectable at first sight. SAC at 12 ¶ 36-38.
allege that they relied on, and were misled by, the labeling
and advertising displayed on the product's packaging,
specifically (1) the image on the label portraying a bowl
full of “plump and hardy pinto beans, with a glimmer of
shine” and negligible water, (2) the nutrition facts
panel, including the net weight, serving size, and number of
servings per container, and (3) the size and fill of the
opaque container. Plaintiffs claim that the Sun Vista bean
labels are false and misleading, the information on the label
is deceptive, and the use of water as a filler is concealed
from consumers in violation of California's Unfair
Competition Law (“UCL”), Cal. Bus. & Prof.
Code § 17200 et seq., False Advertising Law
(“FAL”), Cal. Bus. & Prof. Code § 17500
et seq., and California Consumer Legal Remedies Act
(“CLRA”), Cal. Civ. Code § 1750 et seq.
filed their initial complaint on October 11, 2016 in the
Superior Court of California, County of San Diego. Doc.
No. 1-2. Defendant filed a timely notice of removal and
moved to dismiss Plaintiff's initial complaint for
failure to state a claim and failure to plead fraud-based
claims with sufficient particularity. Doc. Nos. 1,
3. The Court granted Defendant's motion, with leave to
amend, finding that Plaintiffs had not met the heightened
pleading standard of Rule 9(b) . See Doc. No. 18;
Beckman v. Arizona Canning Co., LLC, No. 16CV02792
JAH-BLM, 2017 WL 4227043 (S.D. Cal. Sept. 21, 2017).
Plaintiffs filed an amended complaint identifying which
variety of bean Plaintiffs purchased. See Doc. No.
19. Defendant again moved to dismiss, adding two additional
grounds: (1) lack of standing pursuant to Rule 12(b)(1) and
failure to state a plausible claim for relief. Fed. R.
Civ. P. 8, 12(b)(1). In light of Defendant's
compliance with the Federal Drug Administration's
(“FDA”) regulation, labeling the ingredients in
order of predominance, the Court found the pleadings
insufficient with regards to why and/or how the alleged
misconduct was misleading or deceptive. The Court further
ruled that Plaintiffs did not plead facts indicating
compliance with Cal. Civ. Code § 1782(a)
requiring a pre-filing notice, and therefore were not
entitled to damages under the CLRA. Doc. No. 27. The
Court granted Defendant's motion to dismiss the First
Amended Complaint (“FAC”) without prejudice.
Plaintiffs timely filed the SAC. Doc. No. 29.
before the Court is Defendant's request for judicial
notice and motion to dismiss Plaintiffs' SAC pursuant to
Rules 8, 9(b), 12(b)(1), and 12(b)(6) for: (1) failure to
state a plausible claim for relief, (2) failure to plead
fraudulent claims with sufficient particularity; (3) lack of
standing under claim-specific state law requirements; and (4)
failure to state a claim upon which relief can be granted.
Doc. No. 30.
state a claim for relief, a pleading must contain “a
short and plain statement of the grounds for the court's
jurisdiction” and “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(1) & (2).
“To survive a motion to dismiss, a complaint 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) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). In order to satisfy “Rule
8(a)(2)'s threshold requirement that the ‘plain
statement' possess enough heft to ‘sho[w] that the
pleader is entitled to relief, '” plaintiff must
plead allegations that suggest defendant is likely liable -
allegations “merely consistent” with liability
are insufficient. Twombly, 550 U.S. at 545. The
plausibility standard requires more than a mere possibility
that defendant acted unlawfully - but less than a
probability. Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). A claim is facially
plausible when a reasonable inference of liability can be
drawn from the factual allegations. Id. A complaint
that fails to meet this standard may be dismissed pursuant to
Rule 12(b)(6). Id.at 679.
addition, under Ninth Circuit case law, Rule 9(b) imposes a
heightened, particularized pleading requirement on complaints
alleging fraud. Fed.R.Civ.P. 9(b). First, a
plaintiff's claims must “state precisely the time,
place, and nature of the misleading statements,
misrepresentations, and specific acts of fraud.”
Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1994);
see also Vess v. Ciba-Geigy Corp., U.S.A., 317 F.3d
1097, 1106 (9th Cir. 2003) (a plaintiff must set forth the
“who, what, when, where and how” of the alleged
misconduct). Second, Rule 9(b) requires that the complaint
“set forth an explanation as to why the statement or
omission complained of was false or misleading.”
Yourish v. California Amplifier, 191 F.3d 983, 993
(9th Cir. 1999)(quoting In re GlenFed Sec. Litig.,
42 F.3d 1541, 1548 (9th Cir.1994) (en banc)).
to Rule 12(b)(1), a party may move to dismiss an action for
“lack of jurisdiction over the subject matter.”
Fed. R. Civ. P. 12(b)(1). If jurisdiction is
lacking, the dismissing court is deprived of any power to
adjudicate the merits of the case. Hampton v. Pac. Inv.
Mgmt. Co. LLC, 869 F.3d 844, 846 (9th Cir. 2017) (citing
Wages v. I.R.S., 915 F.2d 1230, 1234 (9th Cir.
1990)). The burden of establishing jurisdiction rests upon
the party asserting it. Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994).
Rule 12(b)(1) jurisdictional attack may be facial or
factual.” Safe Air for Everyone v. Meyer, 373
F.3d 1035, 1039 (9th Cir. 2004) (citing White v.
Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). A facial
attack challenges the allegations as insufficient on their
face to invoke federal jurisdiction. Id. In
reviewing a facial attack on the complaint, a district court
must accept the allegations in the complaint as true and
determine whether subject-matter jurisdiction has been
established. Berkovitz v. United States, 486 U.S.
531, 540 (1988).
12(b)(6) tests the sufficiency of the complaint.
Fed.R.Civ.P. 12(b)(6); Navarro v. Block,
250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted
under 12(b)(6) where the complaint lacks a cognizable legal
theory. Robertson v. Dean Witter Reynolds, Inc., 749
F.2d 530, 534 (9th Cir. 1984); see Neitzke v.
Williams, 490 U.S. 319, 326 (1989) (“Rule 12(b)(6)
authorizes a court to dismiss a claim on the basis of a
dispositive issue of law.”). Alternatively, a complaint
may be dismissed where it presents a cognizable legal theory
yet fails to plead essential facts under that theory.
Robertson, 749 F.2d at 534. While a plaintiff need
not give “detailed factual allegations, ” he must
plead sufficient facts that, if true, “raise a right to
relief above the speculative level.” Twombly,
550 U.S. at 545. The Court must determine whether the
complaint alleges enough facts to state a claim for relief.
Fed.R.Civ.P. 12(b)(6); Iqbal, 556 U.S. at
663; Twombly, 550 U.S. at 570. For purposes of
ruling on a Rule 12(b)(6) motion, a court “accept[s]
factual allegations in the complaint as true and construe[s]
the pleadings in the light most favorable to the nonmoving
party.” Manzarek v. St. Paul Fire & Marine Ins.
Co., 519 F.3d 1025, 1031 (9th Cir. 2008). “Mere
conclusions, ” however, “are not entitled to the
assumption of truth. While legal conclusions can provide the
complaint's framework, they must be supported by factual
allegations.” Iqbal, 556 U.S. at 664.
court determines that a complaint fails to state a claim, the
court should grant leave to amend unless it determines that
the pleading could not possibly be cured by the allegation of
other facts. Jackson v. Carey, 353 F.3d 750, 758
(9th Cir. 2003). The court will only dismiss if “it
appears beyond doubt that the plaintiff can prove no set of
facts” that would entitle plaintiff to relief.
Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th
Cir.1990) (quoting Scheuer v. Rhodes, 416 U.S. 232,
Requests for Judicial Notice
court may consider facts alleged in the complaint, documents
attached to the complaint, documents relied upon but not
attached to the complaint when authenticity is not contested,
and matters of which the court takes judicial notice. Lee
v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir.
2001). “The defendant may offer such a document, and
the district court may treat such a document as part of the
complaint, and thus may assume that its contents are true for
purposes of a motion to dismiss under Rule 12(b)(6).”
United States v. Ritchie, 432 F.3d 903, 908 (9th
Cir. 2003). Pursuant to Federal Rule of Evidence
(“Fed. R. Evid.”) 201, the court may
judicially notice a fact that is not subject to reasonable
dispute because it: (1) is generally known within the trial
court's territorial jurisdiction; or (2) can be
accurately and readily determined from sources whose accuracy
cannot reasonably be questioned. The party requesting notice
carries the burden of showing that the fact is a matter of
common knowledge or that the accuracy of the source cannot be
reasonably questioned. Fed. R. Evid. 201(b). If a
relevant fact is reasonably contested, the evidence should be
presented before the trier of fact to make the determination.
moves for judicial notice of three items including: (1) a
search conducted through the USDA Branded Food Products
Database identifying 15 different bean products listing
“water” as the first ingredient in their canned
pinto beans; (2) an article entitled Reading Food Labels from
the U.S. Department of Health & Human Services, National
Institute on Aging; and (3) an article entitled Reading the
Ingredient Label: What to Look For from WebMD archives.
USDA Branded Food Products Database Profiles
USDA branded food products database (BFPD) is an online
database hosted by the United States Department of
Agriculture National Agricultural Library and is a result of
a public-private partnership made up of food industry
organizations, collegiate and international institutes, and
research centers. US Department of Agriculture,
Agricultural Research Service, Nutrient Data Laboratory,
USDA Branded Food Products Documentation at 4, August 2018.
Internet: https://ndb.nal .usda.gov/ndb/docs/BFPDBDoc.pdf.
The information within the BFPD, including descriptions,
nutrient data, serving size, and ingredients for each product