United States District Court, N.D. California
ORDER ON DEFENDANT'S MOTION TO DISMISS RE: DKT.
HAYWOOD S. GILLIAM, JR UNITED STATES DISTRICT JUDGE
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.
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.
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.
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. ¶
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. ¶
REQUEST FOR JUDICIAL NOTICE
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)).
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.
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.
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
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).
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).
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
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,