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Jackson v. General Mills, Inc.

United States District Court, S.D. California

September 20, 2019

CHARLENE M JACKSON, Plaintiff,
v.
GENERAL MILLS, INC., Defendant.

          ORDER GRANTING IN PART MOTION TO DISMISS AND STRIKE [DOCKET NUMBER 21.]

          Hon. Larry Alan Burns, Chief United States District Judge.

         This 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 cereal products.

         Following 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.

         Defendant 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 Fed.R.Civ.P. 12(f).

         Legal Standards

         A 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).

         When 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).

         To meet 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).

         New or 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).

         Under 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).

         Normally 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, 990 (N.D.Cal.2009).

         The 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) (en banc).

         Judicial Notice

         General 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.

         Plastic 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.[1]

         Because 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).

         Defendant’s Arguments

         General 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 ...

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