United States District Court, S.D. California
ORDER GRANTING IN PART MOTION TO DISMISS AND STRIKE
[DOCKET NUMBER 21.]
Larry Alan Burns, Chief United States District Judge.
putative consumer class action was originally filed in San
Diego Superior Court, and removed on the basis of diversity
jurisdiction. Plaintiff Charlene Jackson alleges she bought a
box of Annie’s Frosted Oat Flakes cereal in Bakersfield
in December of 2016. She alleges that she was surprised when
she opened the box and discovered that the box was between
30% and 50% empty, i.e., that it consisted of 30% to
50% “slack-fill.” Slack-filled containers may
violate Cal. Bus. & Prof. Code §§ 12606.2(b)
(the California Fair Packaging and Labeling Act, or CFPLA),
though certain exceptions apply. Jackson seeks to represent
both a nationwide class and a California class consisting of
consumers who bought any of Annie’s HOMEGROWN brand
removal, Defendant General Mills moved to dismiss. Instead of
opposing the motion, Jackson filed an amended complaint (the
“FAC”), which is now the operative pleading. It
includes claims based on several California statutes.
has moved to dismiss under Fed.R.Civ.P. 12(b)(1), 12(b)(6),
and 9(b), and to strike certain class allegations under
motion to dismiss tests the sufficiency of the complaint.
Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).
“Factual allegations must be enough to raise a right to
relief above the speculative level . . . .” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“[S]ome threshold of plausibility must be crossed at
the outset” before a case is permitted to proceed.
Id. at 558 (citation omitted). The well-pleaded
facts must do more than permit the Court to infer “the
mere possibility of misconduct”; they must show that
the pleader is entitled to relief. Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009).
determining whether a complaint states a claim, the Court
accepts all allegations of material fact in the complaint as
true and construes them in the light most favorable to the
non-moving party. Cedars-Sinai Medical Center v. National
League of Postmasters of U.S., 497 F.3d 972, 975 (9th
Cir. 2007) (citation omitted). The Court does not weigh
evidence or make credibility determinations. Acosta v.
City of Costa Mesa, 718 F.3d 800, 828 (9th Cir. 2013).
At the same time, the Court is “not required to accept
as true conclusory allegations which are contradicted by
documents referred to in the complaint, ” and does
“not . . . necessarily assume the truth of legal
conclusions merely because they are cast in the form of
factual allegations.” Warren v. Fox Family
Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003)
(citations and quotation marks omitted).
the ordinary pleading standard and avoid dismissal, a
complaint must plead “enough facts to state a claim to
relief that is plausible on its face.”
Twombly, 550 U.S. at 570. But claims that sound in
fraud, including those arising under state law, must be pled
with particularity. Fed.R.Civ.P. 9(b); Vess v. Ciba-Geigy
Corp. USA, 317 F.3d 1097, 1102 (9th Cir. 2003). This
includes alleging who made various misrepresentations, how
the misrepresentations were conveyed to the plaintiff, and
under what circumstances. See Cooper v. Pickett, 137
F.3d 616, 627 (9th Cir. 1998).
expanded allegations in opposition to a motion to dismiss are
considered when deciding whether to grant leave to amend, but
are not considered when ruling on a 12(b)(6) motion. See
Schneider v. Cal. Dep't of Corr. & Rehab., 151
F.3d 1194, 1197 n.1 (9th Cir. 1998). See also Broam v.
Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003).
Fed.R.Civ.P. 12(f), the Court has discretion either sua
sponte or on the motion of a party, to strike “an
insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” The purpose of a
motion to strike is to “avoid the expenditure of time
and money that must arise from litigating spurious issues by
dispensing with those issues prior to trial.”
Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880,
885 (9th Cir. 1983).
class allegations are tested on a motion for class
certification, although “[s]ometimes the issues are
plain enough from the pleadings to determine whether the
interests of the absent parties are fairly encompassed within
the named plaintiff's claim.” Gen. Tel. Co. of
the Southwest v. Falcon, 457 U.S. 147, 160 (1982). Some
courts have struck class allegations where it is clear from
the pleadings that class claims cannot be maintained.
See, e.g., Sanders v. Apple Inc., 672 F.Supp.2d 978,
Court is also obligated to examine its own jurisdiction,
including jurisdictional issues such as standing; it must do
this sua sponte if necessary. See Chapman v. Pier 1
Imports (U.S.) Inc., 631 F.3d 939, 954 (9th Cir. 2011)
Mills asks the Court to take judicial notice of two articles
quoted in the FAC, and of certain photographs of its
products. This request is GRANTED IN PART.
While product packaging is generally noticeable in
product-labeling claims cases, see Kanfer v. Pharmacare
US, Inc., 142 F.Supp. 3d 1091, 1098–99 (S.D.Cal.,
2015), the photographs depict Defendant’s own
demonstration of how cereal fits into its containers. The
photographs themselves are therefore inappropriate for
judicial notice. Some of the underlying facts demonstrated in
the photographs, however, are appropriately noticed. Most
significantly, the ordinary properties of cereal boxes,
flexible plastic bags, and cereal are generally known,
particularly among consumers who buy cereal. If it were
otherwise, consumers could not have reasonable expectations
about the cereal they were buying.
liner bags in cereal boxes conform to the shape of the boxes.
When their shape is changed in some way, the cereal moves
around and the level of cereal in the bag changes too. For
example, if cereal boxes and bags are squeezed or manipulated
as in the photographs in the FAC, the level of cereal will be
lower than it would be in an average box on a supermarket
shelf. It is also common knowledge that cereal tends to
settle more if it is shaken or handled.
the FAC relies on language from the two articles (Exs. A and
B) to show it is plausible that a reasonable consumer would
be deceived by the slack-fill, the full articles can be
considered as part of the FAC even without judicial notice.
See Fecht v. Price Co., 70 F.3d 1078, 1080 n.1
(9th Cir. 1995) (citing Branch v.
Tunnell, 14 F.3d 449, 454 (9th Cir. 1994))
(holding that district court properly considered full text of
documents quoted in part in the complaint, without converting
motion to dismiss into motion for summary judgment).
Mills asks the Court to strike all reference to a nationwide
class, arguing that she lacks standing to represent them.
They also argue that the FAC is inadequately pled, for
several reasons, including:
1. It fails to allege why the slack-fill was non-functional
under the federal Food, Drug, and Cosmetic Act (FDCA), 21
U.S.C. §§ 301, et seq., which ...