Snarr v. Cento Fine Foods Inc.

          ORDER ON DEFENDANT'S MOTION TO DISMISS RE: DKT. NO. 40

          HAYWOOD S. GILLIAM, JR UNITED STATES DISTRICT JUDGE

         Pending before the Court is Defendant's motion to dismiss Plaintiffs' Amended Complaint, for which briefing is complete. Dkt. No. 40 (“Mot.”), 45 (“Opp.”), 51 (“Reply”). For the reasons articulated below, the Court DENIES Defendant's motion to dismiss.

         I. BACKGROUND

         On July 22, 2019, Lead Plaintiffs Derek Snarr, J. Michael Duca, and Candace Goulette filed an amended class action complaint on behalf of a putative California and nationwide class, alleging violations of California's Unfair Competition Law (“UCL”), Consumers Legal Remedies Act (“CLRA”), and False Advertising Law (“FAL”), as well as two common law claims. Dkt. No. 39 (“FAC”). Plaintiffs' claims are based on Defendant Cento Fine Foods, Inc.'s packaging and labeling representations regarding its “Certified San Marzano” tomato products (the “Products”). Id. ¶ 1.

         According to Plaintiffs, “[t]he term ‘San Marzano' refers to canned tomatoes unique to a specific region of Italy which have been grown, harvested, and processed according to specific guidelines.” Id. ¶ 20. The tomatoes must be grown specifically in the “Agro Sarnese-Nocerino” region of Campania, Italy and “must have a Denominazione di Origine Protetta (“D.O.P.”) marking” from the Consortium, which is “the only entity which can certify and approve a San Marzano tomato.” Id. ¶¶ 22-26.

         Lead Plaintiffs each allege that they purchased at least one Cento “Certified San Marzano” Product from a grocery store in 2019, relying on the “Certified” marking on Defendant's label. See Id. ¶¶ 75-76, 79, 81, 86, 88. Because Defendant's Products do not have a D.O.P. marking nor meet other criteria of “true San Marzano tomatoes, ” Plaintiffs allege that “Defendant's Products are not ‘San Marzano tomatoes, ” “despite the Product packaging, which indicates to reasonable consumers that the tomatoes contained in Defendant's Products are authentic San Marzano tomatoes.” Id. ¶ 54. Specifically, Plaintiffs allege that “Defendant attempts to confuse consumers by stating that its tomatoes are grown in the Campania region of Italy” and by stating “that its production facility is located in the Sarnese-Nocerino region, ” because it is specifically the Agro Sarnese-Nocerino region where true San Marzano tomatoes must be grown. Id. ¶¶ 48-49. Additionally, Defendant's use of the word “Certified” on the label “does not disclose that the [Product] is not, in fact, a certified D.O.P. ‘San Marzano' tomato.” Id. ¶ 63.

         Based on these facts, Plaintiffs assert the following five causes of action against Defendant: (1) California Business and Professional Code section 17200 (UCL); (2) California Civil Code section 1750 (CLRA); (3) California Business and Professional Code section 17500 (FAL); (4) unjust enrichment; and (5) breach of express warranty. Id. ¶ 18-23.

         II. REQUEST FOR JUDICIAL NOTICE

         Before turning to the substance of the motion, the Court considers Defendant's request that the Court take judicial notice of seven documents under the doctrine of incorporation by reference. Dkt. No. 41. “[A] defendant may seek to incorporate a document into the complaint ‘if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff's claim.'” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018) (quoting United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003)).

         Defendant first requests judicial notice of statements contained on the Frequently Asked Questions (“FAQ”) page of its website. See Dkt. No. 40 at 5 n.1. Plaintiff does not oppose Defendant's request and, in fact, expressly provides the link to the page in the FAC. FAC ¶ 61 n.3. Accordingly, the Court GRANTS Defendant's request to take notice of the FAQ page. Similarly, Defendant requests judicial notice of Plaintiffs' letter titled “Consumer Legal Remedies Act Notice and Demand, ” dated May 15, 2019. Dkt. No. 40-4. Plaintiffs again do not oppose notice of the letter, and instead note that it “is explicitly referenced in the [FAC] and is directly relevant to Plaintiffs' claims under the CLRA.” Dkt. No. 46 at 2 n.1. The Court agrees and GRANTS Defendant's request to take judicial notice of the letter.

         Defendant also seeks notice of the product label “utilized at all times relevant to this lawsuit” of Cento San Marzano Certified Peeled Tomatoes. Dkt. No. 40-3 (“Ciccotelli Ex. B.”). Plaintiffs oppose Defendant's request arguing that the label differs from the one included in the FAC. Because the Court must draw all inferences in Plaintiffs' favor at this stage, the Court DENIES Defendant's request to take notice of Ciccotelli Ex. B.

         Defendant next requests judicial notice of its trademark for the “San Marzano” design, Dkt. No. 40-6, and the abandoned “Pomodoro San Marzano Dell'Agro Sarnese-Nocerino” trademark application. Dkt. No. 40-7. Neither document is specifically noted in the FAC nor relevant to the Court's analysis. Therefore, Defendant's request as to those exhibits is DENIED AS MOOT. Similarly, Defendant's Agri-Cert certification in Italian and English, Dkt. Nos. 40-2, 40-8, is not relevant to the Court's analysis and notice as to both exhibits is DENIED AS MOOT.

         III. LEGAL STANDARD

         Federal Rule of Civil Procedure (“Rule”) 8(a) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A defendant may move to dismiss a complaint for failing to state a claim upon which relief can be granted under Rule 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 12(b)(6) motion, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when a plaintiff pleads “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         Rule 9(b) imposes a heightened pleading standard for claims that “sound in fraud.” Fed.R.Civ.P. 9(b) (“In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.”). A plaintiff must identify “the who, what, when, where, and how” of the alleged conduct, so as to provide defendants with sufficient information to defend against the charge. Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997).

         In reviewing the plausibility of a complaint, courts “accept factual allegations in the complaint as true and construe 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). Nonetheless, courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). The Court also need not accept as true allegations that contradict matter properly subject to judicial notice or allegations contradicting the exhibits attached to the complaint. Sprewell, 266 F.3d at 988.

         If the court concludes that a 12(b)(6) motion should be granted, the “court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, ...