Judge: Christopher K. Lui, Case: 22STCV26723, Date: 2023-03-10 Tentative Ruling
Case Number: 22STCV26723 Hearing Date: March 10, 2023 Dept: 76
Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the demurrer addressed herein. As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue. Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776. If notice of intention to appear is not given and the parties do not appear, the Court will adopt the tentative ruling as the final ruling.
Plaintiff alleges that Defendant’s mislabeled their noodle products as containing “0g Trans Fat,” when the product contains between 0g and 0.5g Trans Fat.
Defendant Sanyo Foods Corp. of America demurs to the First Amended Complaint.
TENTATIVE RULING
Defendant Sanyo Foods Corp. of America’s demurrer to the first through fourth causes of action is OVERRULED.
Defendant is ordered to answer the First Amended Complaint within 10 days.
ANALYSIS
Demurrer
Meet and
Confer
The Declaration of Jasmine W. Wetherell
reflects that Defendant’s counsel satisfied the meet and confer requirement set
forth in CCP § 430.41.
Request
For Judicial Notice
Defendant requests that the Court
take judicial notice of the following:
(A) Azizian, H., Kramer, J.K.G. A rapid method for the
quantification of fatty acids in fats and oils with emphasis on trans fatty
acids using fourier transform near infrared spectroscopy (FT-NIR). Lipids 40,
855–867 (2005). https://doi.org/10.1007/s11745-005-1448-3 ;
(B) Hénon, G. & Kemény, Zs & Recseg, Katalin
& Zwobada, F. & Kovari, K.. (1999). Deodorization of vegetable oils.
Part I: Modeling the geometrical isomerization of polyunsaturated fatty acids.
Journal of the American Oil Chemists' Society. 76. 73-81. 10.1007/s11746-999-0050-2;
(C) Wattanapenpaiboon N, Wahlqvist ML. Phytonutrient
deficiency: the place of palm fruit. Asia Pac J Clin Nutr. 2003;12(3):363–368
at p. 364 (available at http://211.76.170.15/server/APJCN/12/3/363.pdf
) “[P]alm oil does not contain any trans-
unsaturated fatty acid isomers.” (emphasis added);
(D) Robb-Nicholson, Celesete, M.D., Harvard Health
Publishing, By the way, doctor: Is palm oil good for you? August 17, 2021
(https://www.health.harvard.edu/staying-healthy/by-the-way-doctor-is-palm-oil-good-for-you
) “[Palm oil is] less saturated than butter and contains no trans fat.”
(Emphasis added);
(E) The entry for “oil, palm” on the US Department of
Agriculture National Nutrient Database for Standard Reference does not report
the presence of any trans fat (https://fdc.nal.usda.gov/fdc-app.html#/food-details/171015/nutrients
);
(F) Excerpts from the Federal Register confirming the
industry-wide acceptance of the AOAC method: Food Labeling: Revision of the
Nutrition and Supplement Facts Labels, 81 FR 33742-01 at 33748-49 (May 27,
2016) and Final Determination Regarding Partially Hydrogenated Oils, 80 FR
34650-01 at 34658 (June 17, 2015);
(G) Food Safety Net Services Analytical Test Results for
Sapporo Noodles, report dated October 6, 2022;
(H) Experts from the Federal Register confirming the
distinction between claims that characterize the level of a nutrient verses
those that just that an amount: Food Labeling: Nutrient Content Claims, General
Principles, Petitions, Definition of Terms; Definitions of Nutrient Content
Claims for the Fat, Fatty Acid, and Cholesterol Content of Food, 58 Fed. Reg.
2302–01, 2310 (proposed Jan. 6, 1993) and Food Labeling; Requirements for
Nutrient Content Claims for Dietary Supplements of Vitamins, Minerals, Herbs,
and Other Similar Nutritional Substances, 58 Fed. Reg. 33731-01, 33740
(proposed June 18, 1993).
Requests A – H are DENIED. These are
not matters of which the Court may take judicial notice, as the information
contained therein is subject to interpretation, and they are being offered for
the hearsay statements contained therein. The rule against hearsay applies to statements contained in judicially noticed-documents. No exception to the hearsay rule has been
demonstrated:
The motion judge took judicial notice of the
declarations filed in these three cases, but not of the truth of their hearsay
contents. The ruling was correct. The hearsay
rule applies to statements contained in judicially noticed documents, and
precludes consideration of those statements for their truth unless an
independent hearsay exception exists. (See 1 Witkin, Cal. Evidence (4th ed.
2000) Judicial Notice, § 25, p. 119.)
(North Beverly Park Homeowners Assn. v. Bisno (2007) 147
Cal.App.4th 762, 778 [bold emphasis
added].)
Nor may we take judicial notice of the truth of the contents of the Web
sites and blogs, including those of the Los Angeles Times and Orange County
Register. (See Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1141, fn.
6 [119 Cal. Rptr. 2d 709, 45 P.3d 1171] [“The truth of the content of the
articles is not a proper matter for judicial notice … .”]; Unlimited Adjusting
Group, Inc. v. Wells Fargo Bank, N.A. (2009) 174 Cal.App.4th 883, 888, fn. 4
[94 Cal. Rptr. 3d 672] [statements of facts contained in press release not
subject to judicial notice].) The contents of the Web sites and blogs are
“plainly subject to interpretation and for that reason not subject to judicial
notice.” (L.B. Research & Education Foundation v. UCLA Foundation (2005)
130 Cal.App.4th 171, 180, fn. 2 [29 Cal. Rptr. 3d 710].)
(Ragland v. U.S.
Bank National Assn. (2012) 209 Cal.App.4th 182, 194.)
On this point, both parties have submitted requests for
judicial notice comprised of printouts from various Web sites maintained by
UCLA and the University of California. However tantalizing this public
information might be, it is plainly subject to interpretation and for that
reason not subject to judicial notice or to our consideration in reviewing the
trial court's order granting a motion for judgment on the pleadings. (Evid.
Code, §§ 451, 452; Comings v. State Bd. of
Education (1972) 23 Cal.App.3d 94, 102 [100 Cal.Rptr.
73] [improper to judicially notice fact subject to reasonable dispute];
cf. McKelvey v. Boeing North
American, Inc. (1999) 74 Cal.App.4th 151, 162 [86
Cal.Rptr.2d 645].)
(L.B. Research & Educ. Found. v. UCLA
Found.
(2005) 130 Cal.App.4th 171, 180 n.2.)
Discussion
1. First Cause of Action (Violation of Business
and Professions Code § 17200 et seq.—Unlawful Conduct Prong); Second Cause of
Action (Violation of Business and Professions Code § 17200 et seq.—Unfair
Conduct Prong); Third Cause of Action (Violation of Business and Professions
Code § 17500—False and Misleading Advertising Law); Fourth Cause of Action
(Violation of Consumer Legal Remedies Act—Civil Code § 1750 et seq.)
Defendant argues that Plaintiff’s
interpretation of trans fat labeling rules is wrong as a matter of law because
FDA regulations do not broadly prohibit “0g Trans Fat” claims and do not
require a disclosure statement on the products.
Defendant also argue that
Plaintiff’s interpretation of the “0g Trans Fat” claim is unreasonable.
Defendant argues that Plaintiff
lacks standing to assert these statutory causes of action because she fails to
adequately pled an injury-in-fact.
Defendant also argues that Plaintiff
lacks standing to bring claims relating to products she didn’t purchase.
Defendant argues that Plaintiff’s
allegations amount to an impermissible lack-of-substantiation claim.
Unfortunately for Defendant, its
demurrer only goes to a portion of each cause of action. While Defendant
focuses on the 0g trans fat portion of Plaintiff’s allegations, Defendant
ignores the following allegations incorporated into each cause of action:
52. A disclosure statement is a statement that calls the consumer’s
attention to one or more nutrients in the food that may increase the risk of a
disease or health-related condition that is diet related. The disclosure statement is required when a
nutrient content claim is made and when a nutrient in that food exceeds certain
prescribed levels. The disclosure
statement identifies that nutrient (e.g. “See nutrition information for sodium
content”). 21 CFR 101.13(h)(1)[.]
53. Disqualifying nutrient levels means the levels of total fat,
saturated fat,
cholesterol, or sodium in a food above which the food will be
disqualified from making a health claim. These levels are 13.0 grams (g) of
fat, 4.0 g of saturated fat, 60 milligrams (mg) of cholesterol, or 480 mg of
sodium, per reference amount customarily consumed, per label serving size, and,
only for foods with reference amounts customarily consumed of 30 g or less or 2
tablespoons or less, per 50 g. 21 CFR 101.14 (a)(4)[.]
54. Under 21 CFR 101.13(h), if a food bears a nutrient content claim and
also contains more than 13.0 grams of fat, 4.0 grams of saturated fat, 60
milligrams cholesterol, and 480 milligrams of sodium per reference amount
customarily consumed (RACC), per labeled serving (or for a food with a RACC of
30 grams or less or 2 tablespoons or less, per 50 grams), then the food must
bear a statement disclosing that the nutrient exceeding the specified level is
present in the food as follows: “See nutrition information for ______content”
with the blank replaced with the identity of the nutrient exceeding the
specified level.
55. The disclosure statement must be in legible boldface type, in
distinct
contrast to other printed or graphic matter, and generally in a type
size at least as large as the net quantity of contents declaration. It must
also be placed immediately adjacent to the claim. 21 CFR 101.13(h)(4)(i)-(ii)[.]
56. Sapporo Ichiban Miso Ramen which Plaintiff purchased contains 17 g
of total fat per serving, 8 g of saturated fat per serving, and 1,640 mg of
sodium per serving, exceeding the disqualifying levels. The front label does
not bear a statement: “See nutrient information for total fat, saturated fat,
and sodium contents” in violation of 21 CFR 101.13(h). Defendant’s product is misbranded and
therefore illegal to sell, lacking economic value, and legally worthless. Plaintiff
would not have purchased Sapporo Ichiban Miso Ramen had Defendant included on
the front of the package the “See nutrition information for total fat,
saturated fat, and sodium contents” disclosure required by the U.S. Food and
Drug Administration. See 21 C.F.R. §§101.13(h). Plaintiff relied on the absence of the
disclosure in purchasing the product.
(First Amended Complaint, ¶¶ 52 – 56 [bold
emphasis added].)
A demurrer does not lie to only part
of a cause of action or a particular type of damage or remedy. (See Kong v. City of Hawaiian Gardens
Redevelopment Agency (2003) 108 Cal.App.4th 1028, 1046; PH II, Inc. v. Superior Court (Ibershof)
(1995) 33 Cal.App.4th 1680, 1682.)
The proper procedure is to bring a motion to strike the substantively
defective allegation. (Id. at 1682-83.)
As to Defendant’s argument that
Plaintiff lacks standing because she did not suffer an injury in fact, this is
not persuasive. Plaintiff alleges that she purchased the products in reliance
on Defendant’s labelling or lack thereof. This economic injury is sufficient
for standing under B & P Code §§ 17200 and 17500 and the CLRA:
“To satisfy the narrower
standing requirements imposed by Proposition 64, a party must now (1)
establish a loss or deprivation of money or property sufficient to qualify as
injury in fact, i.e., economic injury, and (2) show
that [*724] that economic injury was the result of, i.e.,
caused by, the unfair business practice or false advertising that is the
gravamen of the claim.” (Kwikset, supra, 51 Cal.4th at p. 322, second
italics omitted.) “‘[T]he quantum of lost money or property necessary to
show standing is only so much as would suffice to establish injury in fact;
[which] … is not a substantial or insurmountable hurdle. … [Citation.]’
[Citation.]” (Veera, supra, 6 Cal.App.5th at p. 916, quoting Kwikset,
supra, 51 Cal.4th at p. 324.) “Because … economic injury is itself a form
of injury in fact, proof of lost money or property will largely overlap with
proof of injury in fact. [Citation.] If a party has alleged or proven a
personal, individualized loss of money or property in any nontrivial amount, he
or she has also alleged or proven injury in fact.” (Kwikset, supra,
51 Cal.4th at p. 325, fn. omitted.)
b. Standing under the CLRA
“To have standing to assert a claim under
the CLRA, a plaintiff must have ‘suffer[ed] any damage as a result of the
… practice declared to be unlawful.’” (Aron v. U-Haul Co. of California (2006)
143 Cal.App.4th 796, 802 [49 Cal. Rptr. 3d 555]; see also Civ. Code, §
1780, subd. (a) [“Any consumer who suffers any damage as a result of the
use … of a … practice declared to be unlawful by Section 1770 may
bring an action …”].) Our Supreme Court has interpreted
the CLRA's “any damage” requirement broadly, concluding that the “phrase …
is not synonymous with ‘actual damages,’ which generally refers to pecuniary
damages.” (Meyer v. Sprint Spectrum L.P. (2009) 45 Cal.4th 634, 640
[88 Cal. Rptr. 3d 859, 200 P.3d 295].) Rather, the consumer must merely
“experience some [kind of] damage,” or “some type of increased costs” as a
result of the unlawful practice. (Id., at p. 641; see Bower
v. AT&T Mobility, LLC (2011) 196 Cal.App.4th 1545, 1556 [127 Cal.
Rptr. 3d 569] (Bower) [“A plaintiff bringing a CLRA cause
of action must not only be exposed to an unlawful practice but also have
suffered ‘some kind of damage’”].)
For the purposes of this
appeal, the parties agree that the CLRA's standing requirements are
effectively identical to those of the UCL and FAL, and that we may thus
analyze the question of standing under each statute “concurrently.” (See Veera,
supra, 6 Cal.App.5th at p. 916 [agreeing to consider question of
standing under the UCL, FAL and CLRA “together” where plaintiff had
“concede[d] that the … requirements of the CLRA are essentially
identical to those of the UCL and FAL”].)
(Hansen v. Newegg.com Americas, Inc. (2018) 25
Cal.App.5th 714, 723-24 [bold emphasis added].)
As to Defendant’s argument that she
lacks standing to assert violations based on products she did not buy, this is
properly the subject of a motion to strike, not a demurrer, as it would require
that reference to those products be eliminated, if successful.
As to Defendant’s argument that is
an impermissible lack-of-substantiation claim, whether or not this argument
would be persuasive as to Plaintiff’s 0g of trans fat claim, it is not
persuasive as against the failure to notify the consumer about the nutrient
information for total fact, saturated fat, and sodium contents aspect.
Thus, Defendant’s demurrer to the
first through fourth causes of action is OVERRULED.