Judge: Joel R Wohlfeil, Case: 37-2023-00003926-CU-BT-CTL, Date: 2023-12-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 07, 2023

12/08/2023  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  Business Tort Demurrer / Motion to Strike 37-2023-00003926-CU-BT-CTL HERB VS WEHAH FARM INC [EFILE] CAUSAL DOCUMENT/DATE FILED: Demurrer, 04/12/2023

The special and general Demurrer (ROA # 13, 16) of Defendant Wehah Farm, Inc. d / b / a Lundberg Family Farms ('Defendant' or 'Lundberg') to the First Amended Complaint ('FAC') filed by Plaintiff John Herb ('Plaintiff'), is OVERRULED in part and SUSTAINED in part.

As discussed below, Plaintiff is permitted leave to file and serve a Second Amended Complaint within twenty (20) days of this hearing.

Plaintiff's Request (ROA # 69) for judicial notice is GRANTED IN PART and DENIED IN PART. The Court takes judicial notice of Exh's 'A, D, E and F;' otherwise, the Request is DENIED.

The special Demurer to each cause of action is overruled. The causes of action are not fatally ambiguous or unintelligible. Code Civ. Proc. 430.10(f).

Regarding the general Demurrer, Defendant argues all causes of action fail because statements identified in the FAC are 'aspirational' and cannot be false. A statement is considered puffery if the claim is extremely unlikely to induce consumer reliance. Demetriades v. Yelp, Inc. (2014) 228 Cal. App. 4th 294, 311 (quoting Newcal Industries, Inc. v. Ikon Office Solution (9th Cir.2008) 513 F. 3d 1038, 1053).

Ultimately, the difference between a statement of fact and mere puffery rests in the specificity or generality of the claim. Id. The common theme that runs through cases considering puffery in a variety of contexts is that consumer reliance will be induced by specific rather than general assertions. Id. A statement that is quantifiable and that makes a claim as to the specific or absolute characteristics of a product, may be an actionable statement of fact. Id. A general, subjective claim about a product is non-actionable puffery. Id. ''Crystal clear' and 'CD quality' are not factual representations that a given standard is met. Instead, they are boasts, all-but-meaningless superlatives, similar to the claim that defendants 'love comparison,' a claim which no reasonable consumer would take as anything more weighty than an advertising slogan.' Consumer Advocates v. Echostar Satellite Corp. (2003) 113 Cal. App. 4th 1351, 1361.

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3048289  3 CASE NUMBER: CASE TITLE:  HERB VS WEHAH FARM INC [EFILE]  37-2023-00003926-CU-BT-CTL In contrast, the falsity of advertising claims may be established by testing, scientific literature or anecdotal evidence. Id. at 1362.

In this case, the representation that Defendant cultivates rice using 'regenerative farming practices' (FAC ¶ 23) could be an assertion of fact likely to induce consumer reliance. This is a quantifiable, specific assertion of fact. Similarly, the assertion that Defendant utilizes sustainable agricultural practices (FAC ¶ 29) could be an assertion of fact likely to induce consumer reliance.

The statement that Defendant 'ensure[s]' that its packaging 'can skip the landfill for a second life as durable plastic goods' (FAC ¶ 33) could be a provable, specific assertion of fact, and not mere puffery.

Defendant's argument is not persuasive.

Regarding the general Demurrer, Defendant also argues all causes of action fail because the statements alleged are taken out of their factual context and when viewed as a whole are not misleading. The 'reasonable consumer' test asks whether a reasonable consumer would likely be deceived into incorrectly believing the false assertion. Salazar v. Target Corporation (2022) 83 Cal. App. 5th 571, 578.

Whether a business practice is deceptive will usually be a question of fact not appropriate for decision on demurrer. Id. at 579.

The FAC sufficiently alleges that a reasonable consumer could be deceived by the alleged false statements. This is ultimately a question of fact that cannot be determined via this Demurrer.

Regarding the general Demurrer, Defendant also argues all causes of action fail because the FAC fails to allege facts to 'substantiate the conclusions' that Defendant's farming practices are not regenerative or sustainable, or that Defendant's packaging cannot be recycled. This argument is not persuasive.

Plaintiff is not required to 'substantiate' the claim at the pleading stage. Sufficient facts are alleged demonstrating a claim based on false and misleading advertising.

Regarding the general Demurrer, Defendant also argues all causes of action fail because Plaintiff is not entitled to recover equitable or injunctive relief. Defendant argues monetary damages constitute an adequate legal remedy. However, the second cause of action for the UCL violation can only seek restitution or injunctive relief. See Bus. & Prof. Code 17203. Also, the first and third causes of action seek damages and injunctive relief. Therefore, even assuming injunctive relief was improper, the causes of action would survive. This is an improper argument to support a demurrer motion, and a motion to strike has not been filed.

Regarding the general Demurrer, Defendant also argues a class action cannot be sustained because there is no community of interest between putative class members. The Court properly and routinely decides the issue of class certification on demurrer, sustaining demurrers without leave to amend where it is clear that there is no reasonable possibility that Plaintiffs could establish a community of interest among the potential class members and that individual issues predominate over common questions of law and fact. Silva v. Block (1996) 49 Cal. App. 4th 345, 349.

On the other hand, it is often premature for a trial court to make determinations pertaining to class suitability on demurrer. Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal. App. 4th 471, 487.

Instead, all that is normally required is that the complaint allege facts that tend to show: (1) an ascertainable class of Plaintiffs, and (2) questions of law and fact which are common to the class. Id. It is sufficient that there is a reasonable possibility Plaintiffs can establish a prima facie community of interest among the class members. Id. Where there is a reasonable possibility that Plaintiff in a class action can establish a community of interest among class members, the preferred course is to defer decision on the propriety of the class action until an evidentiary hearing has been held on the appropriateness of class litigation. Id. Calendar No.: Event ID:  TENTATIVE RULINGS

3048289  3 CASE NUMBER: CASE TITLE:  HERB VS WEHAH FARM INC [EFILE]  37-2023-00003926-CU-BT-CTL One who was not exposed to the alleged misrepresentations and therefore could not possibly have lost money or property as a result of the unfair competition is not entitled to restitution. Pfizer Inc. v. Superior Court (2010) 182 Cal. App. 4th 622, 631.

'Here, the class certified by the trial court, i.e., all purchasers of Listerine in California during a six-month period, is grossly overbroad because many class members, if not most, clearly are not entitled to restitutionary disgorgement.' Id. The FAC in this action alleges deceptive statements contained on Defendant's website and, to a lesser extent, on printed packaging. The FAC also alleges reliance by Plaintiff on these deceptive statements.

See, e.g., FAC ¶ 42 ('Plaintiff relied on Defendants' labeling, marketing and website and would not have purchased the Lundberg Products or paid a premium for them if she [sic] had known that they did not have the characteristics, benefits, or qualities as represented ....').

However, the FAC does not allege any facts giving rise to reliance by class members; i.e., demonstrating the manner in which class members were exposed to the deceptive statements. Therefore, a community of interest among putative class members is not alleged. The general Demurrer is sustained as to each cause of action based on this deficiency, with leave to amend.

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