Judge Bruce G. Iwasaki, Case Number: 24STCV30604, Date: 2025-04-15 Tentative Ruling

Tentative Ruling: The Demurrer to the First Amended Complaint is overruled as to the first cause of action and sustained as to the second cause of action.

This is a “slack-fill” claim. Plaintiff Silvia Garcia (Plaintiff) sued Defendant Stellar Snacks LLC (Defendant) on November 20, 2024, asserting one cause of action for fraud and another for violation of the Consumer Legal Remedies Act (CLRA).

Plaintiff alleges she purchased Defendant’s pretzel snack food product (Product) that was sold in an oversized pouch or bag packaging, which created the optical illusion that the Product’s container contains far more pretzels than the container contains. (FAC ¶¶ 1, 3.) Defendant uses an oversized container to sell its Product, which, Plaintiff contends, leads consumers to believe the container contains more of the Product than it actually does.

On March 11, 2025, Defendant demurred to both causes of action in the First Amended Complaint (FAC). Plaintiff opposes the demurrer.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

Defendant demurs to this cause of action on the grounds that the claim fails to state facts sufficient to constitute a cause of action.

The elements of fraud are (1) a misrepresentation, (2) with knowledge of falsity, (3) intent for plaintiff to rely on the misrepresentation, (4) plaintiff’s reasonable reliance, and (5) damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Under California law, fraud must be pled with particularity; “[t]he particularity demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.) Fraud allegations need not be liberally construed, general pleading of the legal conclusion of fraud is insufficient, and every element of the cause of action for fraud must be alleged fully, factually and specifically. (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal. App. 3d 1324, 1331; see also Quelimane Co., Inc. v. Stewart Title Guaranty Co. (1998) 19 Cal. 4th 26, 47.)

In the context of fraud involving slack-fill food product cases, the results appear to widely diverge. But on closer inspection, the differences are explained by the specifics of the product, how it will be used or consumed, and the type of information on the package such as net weight, serving size, number of servings, and product yield. For example, courts have universally concluded that reasonable consumers are not misled by packages of powdered baking products when weight and yield information is provided, particularly where the product is in a pliable container.

As the Ninth Circuit explained, claims such as this one under California consumer protection statutes “are governed by the ‘reasonable consumer’ test. [Citation omitted.] Under this standard, Plaintiff must ‘show that “members of the public are likely to be deceived.” ’ [Citation omitted] This requires more than a mere possibility that [defendant's] label ‘might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner.’ Lavie v. Procter & Gamble Co., 105 Cal.App.4th 496, 129 Cal.Rptr.2d 486, 495 (2003). Rather, the reasonable consumer standard requires a probability ‘that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.’ ” (Ebner v. Fresh, Inc. (9th Cir. 2016) 838 F.3d 958, 965; Williams v. Gerber Prods. Co. (9th Cir. 2008) 552 F.3d 934, 938 [fraud-based claims under the CLRA are “governed by the ‘reasonable consumer’ test.”].) Accordingly, Plaintiff’s causes of action here turn on whether Defendant’s packaging is misleading to the reasonable consumer.

However, California courts “have recognized that whether a business practice is deceptive will usually be a question of fact not appropriate for decision” at the pleading stage. (Williams v. Gerber Prods. Co, supra, 552 F.3d at 939 [explaining that it is a “rare situation in which granting a motion to dismiss is appropriate” for these types of claims]; Linear Tech. Corp. v. Applied Materials, Inc. (2007) 152 Cal.App.4th 115, 134-35 [“Whether a practice is deceptive, fraudulent, or unfair is generally a question of fact which requires consideration and weighing of evidence from both sides and which usually cannot be made on demurrer.”].) This is because whether packaging is deceptive turns on highly specific factual circumstances. (Sinatro v. Mrs. Gooch's Natural Food Markets, Inc. (N.D. Cal., Feb. 16, 2023, No. 22-CV-03603-TLT) 2023 WL 2324291, at *11; Reyes v. Just born, Inc. (C.D. Calif., April 8, 2024, No. 2-23-cv-10848-HDV-ASx) 2024 WL 1748629 at p. *4 [slack-fill cases require a “highly fact-specific analysis”].)

On demurrer, Defendant argues that Plaintiff’s FAC does not allege with particularity what the misrepresentation was, how the misrepresentation occurred, or what the intent behind it was, all of which are necessary to sufficiently plead a fraud claim.

Here, the FAC alleges that Plaintiff purchased Defendant’s Product in “October 2024.” (FAC ¶ 19.) Plaintiff asserts that the false representation was that the opaque package was “full of product.” (FAC ¶ 12.) However, the actual product only occupied approximately 60% of the exterior space represented by the Product’s packaging container. (FAC ¶ 3.) That is, Plaintiffs alleged that the size of the packaging for the products at issue, combined with the actual amount of product in the package, amounted to Defendant’s misrepresentation.

The demurrer argues that the FAC does not allege, however, that the weight stated on the package is inaccurate. Again, however, as noted above, Plaintiff does not allege that the container at issue made a false statement or misrepresentation; rather, Plaintiff contends that the size of the Products’ container itself misrepresented the amount of Product contained within it.

Defendant also asserts the package as depicted in the pleadings is pliable, and can be picked up by the consumer who can feel the amount of the contents within the package. However, this fact is not specifically alleged in the pleadings. Admittedly, the photo in the FAC does suggest that the Product container is at least more pliable than a cardboard box or hard plastic container. Nonetheless, the Court cannot, on the pleadings, determine how pliable the Product container actually was to determine that the container could be sufficiently manipulated to ascertain its approximate contents. (FAC ¶ 3.)

Additionally, the FAC does not contain any allegations as to the number of pretzels per servings and number of serving per bag to aid the consumer. Even assuming that these allegations were included, such information does not render the packaging non-deceptive per se. (See e.g., Hawkins v. Nestle U.S.A. Inc. (E.D. Mo. 2018) 309 F.Supp.3d 696, 705 [finding “that the clear and accurate labeling on the packages—net weight, number of pieces of candy per serving, and number of servings per box” was not fatal in a motion to dismiss because “the dimensions of the boxes can suggest to reasonable consumers how much candy is in them, and consumers tend to choose larger packages, thinking they are a better value. Consumers also tend to make their purchasing decision in about 13 seconds.”].)

Federal district courts in California have addressed slack-fill claims for a variety of products. The slack-fill cases most analogous to this case are those involving immediately consumed goods and pliable packaging.

For example, in Escobar v. Just Born Inc. (C.D. Cal., June 12, 2017, No. CV 17-01826) 2017 WL 5125740, which alleged that Hot Tamale candies were deceptively packaged. The information on the box was sparse: “The serving size, indicating that the package includes roughly 3.5 servings, gives no additional indication of the amount of Product contained in the package; rather it merely indicates that the total amount (whatever it is) is intended to constitute 3.5 servings.” (Id. at p. *9.) The court observed that a reasonable consumer is “not necessarily aware of a product’s weight or volume and how that weight or volume correlates to the product’s size.” (Ibid.)

Similarly, in Gordon v. Tootsie Roll Industries, Inc. (C.D. Cal., July 31, 2017, No. CV 17-2664 DSF (MRWx)) 2017 WL 8292777, a suit targeting slack-fill in the Junior Mints box and other similar products. The district court explained: “Junior Mints’ packaging accurately indicates the weight and number of pieces of candy in the box, but it does not necessarily convey to a reasonable consumer that Junior Mints’ package will not be full of candy. In light of Plaintiff's allegations, the Court cannot find as a matter of law that a reasonable consumer of candy products understands that the amount of product indicated on the label is significantly less than is suggested by the size of the packaging.” (Id. at p. *4; see also Maisel v. Tootsie Roll Industries, LLC (N.D. Cal., July 27, 2021, No. 20-cv-05204-SK) 2021 WL 3185443 at p. *11 [“reasonable consumer might not necessarily comprehend the differential between the size of the box and the amount of the candy contained inside, even with the amount listed numerically”]; Reyes v. Just Born, Inc. (C.D. Cal., April 8, 2024, No. 2:23-cv-10848-HDV-ASx) 2024 WL 1748629 at p. *4 [contrasting candy box serving information to yield statement of one 8-in square loaf of cornbread].)

These candy box cases are helpful to Plaintiff’s claim because pretzels – like candy – are consumed directly from the product’s container. Moreover, pretzel consumers – like candy consumers -- reasonably expect the container to be mostly filled.[1] Admittedly, however, where these cases differ arises from the packaging pliability.

The most analogous case, however, was not cited by either party. In Oh v. Fresh Bellies, Inc. (C.D. Cal., Oct. 15, 2024, No. CV 24-5417 PSG (JPRX)) 2024 WL 4500727, the plaintiff purchased a 0.75 oz. pouch of “Strawberry Feels Forever” freeze-dried fruit toddler snacks, which she alleges was 37% empty space. This empty space was not visible due to the opaque packaging. Further, even though the package was pliable, the court found the packaging was not determinative because it was still plausible that the consumers were misled by this empty space. Specifically, the court explained that “the fact that the packaging is pliable, as opposed to a hardened container, is inconsequential here.” (Oh v. Fresh Bellies, Inc. (C.D. Cal., Oct. 15, 2024, No. CV 24-5417 PSG (JPRX)) 2024 WL 4500727, at *8; Stewart v. Kodiak Cakes, LLC (S.D. Cal. 2021) 537 F.Supp.3d 1103, 1141 [“The reasonable consumer does not don Sherlock Holmes garb to scrutinize an entire aisle filled with shelves of a various pancakes by comparing the exact weight of each box's content with the price across a dozen brands or shaking and manipulating each box to detect the nature of the hidden culinary treasure.”].)

Based on the foregoing, Plaintiff’s allegations in the FAC are sufficient, at the pleading stage, to allege with particularly the “who, what, where, and when” of the fraudulent misrepresentation.[2]

Finally, Defendant argues that Plaintiff has not alleged facts sufficient to describe the Defendant’s knowledge and intent to deceive. The Court disagrees.

Here, the FAC alleges that comparator products have significantly less empty space, suggesting that Defendant knew “that the Product’s packaging has significant quantities of nonfunctional slack-fill or empty space, [knew] that consumers are influenced by the size and volume of the Product container to purchase the Product, [knew] that consumers believe that it is full, and [knew] that it is deceiving consumers” and intended for consumer to purchase the Product “under this mistaken belief that the package is full so that Defendant can capture sales it would not have otherwise received and can increase profits.” (FAC ¶¶ 17-18, 63, 64.) These allegations are sufficient to allege knowledge and intent at the pleading stage. (See e.g., Costa v. Reliance Vitamin Co., Inc. (N.D. Cal., Apr. 18, 2023, No. 3:22-CV-04679-WHO) 2023 WL 2989039, at *5.)

“The CLRA prohibits ‘unfair methods of competition and unfair or deceptive acts or practices’ in transactions involving the sale of goods or services to any consumer.” (Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1249.) Per the CLRA’s private cause of action, “[a]ny consumer who suffers any damage as a result of the use or employment by any person a method, act or practice declared to be unlawful by [Civil Code section 1770] may bring an action against that person[.]” (Civ. Code, § 1780(a).)

The elements for a CLRA claim, derived from sections 1770 and 1780, are: (1) that the plaintiff is a consumer, (2) that the defendant engaged in an unlawful practice, and that the practice (3) resulted in (4) damage to the plaintiff. (See ibid.; cf. also Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1246 [basic elements of wrongdoing, causation, and harm as applied to consumer protection claim (Song Beverly Act)].)

Plaintiff contends that the unlawful practice was violation of the federal and state slack-fill laws.

On demurrer, Defendant argues that “Plaintiff also generically pleads that there is no justifiable safe harbor provision for the alleged slack fill, but such pleadings without particular factual support are routinely dismissed for failure to state a claim.” (Dem., 4:11-14.)

Under California Business & Professions Code § 12606.2, nonfunctional slack-fill is defined as “the empty space in a package that is filled to less than its capacity” and is not justified by one of several specifically listed functional reasons. The statute lists six permissible (functional) reasons for slack-fill, including: (1.) Protection of product during handling, (2.) Requirements of the packaging machinery, (3.) Unavoidable product settling during shipping. (4.) Package performing a specific function (e.g., dispenser), (5.) Reusable packaging, and (6.) Inability to increase product or reduce package size (e.g., due to labeling requirements). If none of these justifications apply, the slack-fill is considered nonfunctional and, therefore, presumptively deceptive.

Here, the FAC alleges that the Product container’s extra space served no functional purpose; contrary to the demurrer, these allegations are not bare legal conclusions. (FAC ¶¶ 32-48.) Because Plaintiff plausibly alleges that the slack-fill in Defendant’s packaging serves no functional purpose under any of the six statutory exceptions, the FAC adequately states a claim under California Business & Professions Code § 12606.2.

However, Defendant also argues that Plaintiff failed to strictly comply with the pre-suit requirements of Civil Code § 1782 to send a notice and demand letter “to the place where the transaction occurred or to the person’s principal place of business within California.” (Cal. Civ. Code § 1782(a).) This argument is well-taken.

Here, Plaintiff alleges she sent a notice and demand letter to Defendant “in writing and sent by certified mail, return receipt requested to Defendant’s state of Nevada mailing address because Defendant has no principal place of business in California.” (FAC ¶ 76.)

This does not comply with the requirement of the CLRA, which states the notice shall be sent “to the place where the transaction occurred” if the defendant does not have a principal place of business within California. Plaintiff failed to send a compliant notice and demand letter pursuant to Civil Code section 1782(a) to where Plaintiff allegedly purchased the Product, which is “Sprouts Farmers Market, located at 12450 Amargosa Road, Victorville, California.” (FAC ¶ 19.) Because Plaintiff did not send a letter to “the place where the transaction occurred” (given Defendant does not have a principal place of business within California), Plaintiff cannot pursue any damages under the CLRA.[4]

The demurrer to the First Amended Complaint is overruled as to the first cause of action and sustained as to the second cause of action. Plaintiff shall have leave to amend. An amended complaint shall be filed and served on or before May 15, 2025.

[1] In contrast, a reasonable consumer of a bakery mix does not assume that the box size correlates to the number of muffins or the size of a cake. Instead, consumers hey look at the package for this yield information.

[2] Plaintiff acknowledges that the FAC contains a typographical error in referring to “granola clusters” a single instance in paragraph 62(b) instead of pieces of pretzel, the latter of which is elsewhere depicted via an image of the Product’s contents. (FAC ¶ 3.) This obvious typo is not fatal to the pleadings.

[3] Plaintiff must also plead that she actually relied upon the asserted misrepresentation. (Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 917.) The FAC does so here. (FAC ¶ 19.) The demurrer suggests that Plaintiff is a serial tester. (Dem., fn. 1.) Presumably, based on her status as a serial tester, Plaintiff cannot truthfully claim that she purchased the product relying on whatever she regards as the “representations” of the packaging. (Buckland v. Threshold Enterprises, Ltd. (2007) 155 Cal.App.4^th 798, 808-809 [rejecting claim of reliance under fraud and CLRA theories, and holding “actual reliance occurs only when the plaintiff reposes confidence in the truth of the relevant representation, and acts upon this confidence”].) However, there are no allegations in the FAC or judicially noticeable documents before the Court to support this assertion that she was a serial tester. Defendant also does not demur on this ground.

[4] Notice to the non-California corporate headquarters may be sufficient where the defendant does not have a principal place of business in California, but only where there is no obvious place where the transaction occurred. (Oh v. Catalina Snacks, Inc. (C.D. Cal., Jan. 29, 2025, No. 2:24-CV-08625-SVW-MAR) 2025 WL 352776, at *10.) In that case, the defendant did not have a principal place of business in California and “the transaction occurred on the internet, so there is not a clear ‘place’ where the transaction took place.” (Ibid.) Thus, the court found that “[s]erving the out-of-state corporate headquarters maximizes the chances that the relevant decision makers will take notice of the alleged CLRA violations and have the chance to make “appropriate corrections or replacements.” (Ibid.) “Such service is thus consistent with the purposes of the CLRA.” (Ibid.) In our case, as noted, the transaction occurred at a specific store, not on the internet.

Judge Bruce G. Iwasaki

Department 58