Judge: Joseph Lipner, Case: 24STCV22876, Date: 2025-01-28 Tentative Ruling
Case Number: 24STCV22876 Hearing Date: January 28, 2025 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
SIMON OH, Plaintiff, v. SUNFOOD CORPORATION, Defendant. |
Case No:
24STCV22876 Hearing Date: January 28, 2025 Calendar Number: 8 |
Defendant Sunfood Corporation (“Defendant”) moves for
judgment on the pleadings as to the Complaint filed by Plaintiff Simon Oh
(“Plaintiff.”)
The Court tentatively DENIES the motion.
The Court invites argument on the current status of the case
law where the claim is that the size of the packaging is misleading but the
correct weight is or volume is stated on the packaging.
This is a consumer rights action.
Defendant is the manufacturer of a product called the
Organic Superfood Smoothie Mix Original (the “Product”), a smoothie mix powder
which is the subject of Plaintiff’s complaint. Plaintiff alleges that the
Product is sold in deceptive oversized packaging.
The Product is sold in a sealed package. Plaintiff alleges
that the package is filled to only a fraction of its interior space and
provides photographs of the packaging and product. (Complaint ¶ 3.) Plaintiff
alleges that the packaging contained significant empty space, known as “slack
fill.” Plaintiff alleges that the slack fill has no functional or lawful
purpose.
The product packaging states that it has a net weight of 8
ounces, or 227 grams. (Request for Judicial Notice, Ex. A.) The nutrition
information states that a serving size is equal to approximately one quarter
cup and that the package contains approximately five servings. (Request for
Judicial Notice, Ex. A.)
Plaintiff alleges that he purchased the Product, but would
not have done so if he had known that the packaging contained slack fill with
no functional or lawful purpose.
Plaintiff filed this action on September 5, 2024, raising
claims for (1) common law fraud; and (2) violation of the Consumer Legal
Remedies Act (“CLRA”), Civil Code sections 1770(a)(2), 1770(a)(5), 1770(a)(7),
and 1770(a)(9). In addition to damages, Plaintiff seeks injunctive relief
requiring Defendant to add a conspicuous “fill line” to the front of the
Product’s packaging sold in California.
On January 14, 2025, Defendant moved for judgment on the
pleadings. Plaintiff filed an opposition and Defendant filed a reply.
Defendant requests that the Court take judicial notice of a
color copy of the front and back of the Product packaging. Plaintiff does not
object to the request for judicial notice.
Where the contents of a document form the basis of the
allegations in the complaint, “it is essential that [courts] evaluate the
complaint by reference to these documents”, and judicial notice of such
documents is therefore appropriate. (Ingram v. Flippo (1999) 74
Cal.App.4th 1280, 1285 fn. 3 disapproved of on other grounds by Leon v.
County of Riverside (2023) 14 Cal.5th 910.)
The Court therefore grants Defendant’s request for judicial
notice.
The facts constituting the alleged fraud must be alleged
factually and specifically as to every element of fraud, as the policy of
“liberal construction” of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12
Cal.4th 631, 645.) “[Fraud’s] particularity requirement necessitates pleading
facts which ‘show how, when, where, to whom, and by what means the
representations were tendered.’ [Citation.]” (Stansfield v. Starkey
(1990) 220 Cal.App.3d 59, 73.) To properly allege fraud against a corporation,
the plaintiffs must plead the names of the persons allegedly making the false
representations, their authority to speak, to whom they spoke, what they said
or wrote, and when it was said or written. (Tarmann
v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.) “Less
specificity is required when it appears from the nature of the allegations that
the defendant must necessarily possess full information concerning the facts of
the controversy.” (Wald v. TruSpeed Motorcars, LLC (2010) 184
Cal.App.4th 378, 394 [quotation marks omitted].)
Defendant first argues that the Product’s packaging is not
misleading.
The Court initially notes that “California courts … have
recognized that whether a business practice is deceptive will usually be a
question of fact not appropriate for decision on demurrer.” (Williams v.
Gerber Products Co. (9th Cir. 2008) 552 F.3d 934, 938, citing Linear
Technology Corp. v. Applied Materials, Inc. (2007) 152 Cal.App.4th 115,
134–35.)
Defendant argues that California courts regularly dismiss
consumer deception cases where plaintiffs claim to have been misled by truthful
advertising after drawing strained conclusions. (See, e.g., Rubenstein v.
The Gap (2017) 14 Cal. App. 5th 870, 878.) In Rubenstein, the
plaintiff alleged that The Gap’s labels affixed to clothing sold in its factory
outlet stores misled consumers into believing that the clothes had previously
been sold in its main-line stores and were therefore of the same quality. (Id.
at p. 877.) The Court of Appeal sustained a demurrer on the basis that the
plaintiff had alleged no statement by the defendant about its factory outlet
clothes being previously sold in traditional stores and no facts showing that
consumers believed this to be true. (Ibid.) Similarly, in Hill v.
Roll International Corp. (2011) 195 Cal. App. 4th 1295, 1301, the Court of
Appeal affirmed an order sustaining a demurrer where the plaintiff claimed that
a green drop on the label of a bottled water product indicated a third party
certification that the product was environmentally friendly. (Hill v. Roll
International Corp. (2011) 195 Cal. App. 4th 1295, 1301.)
The current case is distinguishable. Whereas in Rubenstein
and Hill, the plaintiffs had each assumed extraneous facts based on the
product labels that the labels plainly did not convey, here, Plaintiff assumed
that the size of the Product’s package was a reasonably accurate representation
of the quantity of product inside the package.
A defendant may not simply avoid liability by showing that “there
is no false statement on the packaging of the products at issue” because
“[m]any features of a product's packaging may be deceiving, such as the
product's name or a picture on the label.” (Sinatro v. Mrs. Gooch's Natural
Food Markets, Inc. (N.D. Cal., Feb. 16, 2023, No. 22-CV-03603-TLT) 2023 WL
2324291, at *15.) Where 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 [the defendants’] misrepresentation,” courts have found
such allegations to be sufficient at the pleading stage. (Ibid.) A
plaintiff has adequately alleged misrepresentation by alleging “the size of the
[product’s] box itself misrepresents the amount of [product] contained within
the box.” (Escobar v. Just Born Inc. (C.D. Cal., June 12, 2017, No.
CV1701826BROPJWX) 2017 WL 5125740, at *11.)
Although the packaging did state the product’s net weight
and serving count, courts do not expect reasonable consumers “to look beyond
misleading representations on the front of the box to discover the truth from
the ingredient list in small print on the side of the box.” (Williams v.
Gerber Products Co., supra, 552 F.3d at p. 939.) Defendant argues
that the Ninth Circuit has rejected Williams’ applicability to
slack-fill cases in Ebner v. Fresh, Inc. (9th Cir. 2016) 838 F.3d 958,
966, but Ebner itself is distinguishable. There, the plaintiff alleged
that a lip balm product was misleadingly advertised because the screw mechanism
that dispensed the product was not able to dispense the entire product stored
in the tube. (Ebner v. Fresh, Inc. (9th Cir. 2016) 838 F.3d 958, 966.)
In other words, the plaintiff had sued over a necessary physical limitation of
how the product functioned. Here, on the other hand, there is no clear reason
why the bag for the Product needed to be more than half empty. Additionally, it
is simply easier to think in sizes and shapes than in numbers – where the
weights and volumes enumerated on the packaging run up against the
unnecessarily size of the packaging, the size of the packaging may be more
likely to win out in the mind of a reasonable consumer. Similarly, although the
packaging displays a disclaimer that the product may have settled during
shipping, it is not clear why the Product – a powder used to make smoothies –
would undergo any settling in the shipping process that it did not undergo at
the factory.
Defendant argues that the Product is sold in pliable
packaging, which would allow Plaintiff to feel the Product to determine how
much smoothie mix was in the package. However, the tactile nature of the
product, including its density, its texture, and what it feels like through a
bag, is a factual issue. For example, if the bag is inflated with air, the fact
that the bag is theoretically pliable may still not allow a consumer to readily
determine how much product is in the bag if the air prevents the bag from being
squeezed to feel for the product. The Court is not prepared to resolve this
issue as a matter of law at the pleading stage.
Defendant argues that Plaintiff has failed to affirmatively
show that the space in the Product bag is nonfunctional. “Functional slack-fill
(as defined in [Business and Professions Code, section 12606]) is permissible
and non-actionable.” (Jackson v. General Mills, Inc. (S.D. Cal., Aug.
28, 2020, No. 18CV2634-LAB (BGS)) 2020 WL 5106652, at *2.) “District courts in
California are split as to whether the safe harbor provisions are affirmative
defenses or “or whether their inapplicability is an element that must be pled.”
(Stewart v. Kodiak Cakes, LLC (S.D. Cal. 2021) 537 F.Supp.3d 1103,
1154.) “Defendant suggests that Plaintiff bears the burden of pleading
sufficient facts negating each of the fifteen possible enumerated reasons for
which section 12606 makes nonfunctional slack fill acceptable. [Citation.] The
Court disagrees that Plaintiff bears this burden.” (Spacone v. Sanford, LP
(C.D. Cal., May 11, 2017, No. CV1702419BROMRWX) 2017 WL 6888497, at *7, fn. 8.)
These facts will necessarily be in the defendant’s hands, and not the
plaintiff’s. The Court finds that the case law in support of treating the safe
harbor provisions as affirmative defenses is more persuasive.
Defendant argues that Plaintiff fails to allege justifiable
reliance because Plaintiff alleges that he had dual motivations for purchasing
the product as both a consumer rights tester and out of genuine interest in
consuming the product. (See Complaint ¶ 17.) Defendant argues that Plaintiff’s
motivation as a consumer rights admits that Plaintiff did not rely on the
package’s representations, but that he rather purchased the Product to
investigate the truthfulness of the packaging’s representations.
But the law that Defendant cites does not go quite that far.
In Buckland v. Threshold Enterprises, Ltd. (2007) 155 Cal.App.4th 798,
808, the plaintiff could not justifiably rely on the packaging where she “concede[d]
she suspected [the defendants’] packaging and marketing was false or
misleading, and she bought respondents’ products solely to pursue litigation
upon the vindication of her suspicions.” (Buckland v. Threshold Enterprises,
Ltd. (2007) 155 Cal.App.4th 798, 808, disapproved of on other grounds by Kwikset
Corp. v. Superior Court (2011) 51 Cal.4th 310.) Similarly, in Caro v.
Procter & Gamble Co. (1993) 18 Cal.App.4th 644, 664, the plaintiff
could not justifiably rely on juice labeling that included the word “fresh”
where “[s]ubstantial evidence support[ed] the court's finding [the plaintiff]
did not believe the Citrus Hill Fresh Choice orange juice he bought was ‘fresh.’
” (Caro v. Procter & Gamble Co. (1993) 18 Cal.App.4th 644, 664.)
Here, Plaintiff was not solely motivated by the pursuit of
litigation, as in Buckland, and did not have actual knowledge, as in Caro.
“There is nothing facially implausible about Ibarra's dual motives—consumers
are allowed to have multiple reasons behind their purchasing decisions.
[Citation.] Thus, ‘[t]he allegations in the complaint give rise to a plausible
inference that [Ibarra] would not have purchased the product, or at least that
he would not have paid the same price for it, had he known in advance that the’
product would not induce weight loss as represented. [Citation.]” (Ibarra v.
Pharmagenics LLC (C.D. Cal. 2023) 660 F.Supp.3d 914, 922.) The Court
therefore finds that Plaintiff has alleged reasonable reliance.
The Court denies the motion as to this claim.
“The unfair methods of competition and unfair or deceptive
acts or practices listed in this subdivision undertaken by any person in a
transaction intended to result or that results in the sale or lease of goods or
services to any consumer are unlawful: ….
(2) Misrepresenting
the source, sponsorship, approval, or certification of goods or services….
(5) Representing
that goods or services have sponsorship, approval, characteristics,
ingredients, uses, benefits, or quantities that they do not have or that a
person has a sponsorship, approval, status, affiliation, or connection that the
person does not have….
(7) Representing
that goods or services are of a particular standard, quality, or grade, or that
goods are of a particular style or model, if they are of another….
(9) Advertising
goods or services with intent not to sell them as advertised.”
(Civ. Code, § 1770, subd. (a).)
Defendant does not raise any separate arguments as to this
claim. As discussed above, the Court finds that Plaintiff has adequately
alleged that the packaging was misleading as to the quantity of product.
The Court therefore denies the motion as to this claim.
Defendant argues that Plaintiff lacks standing to seek
injunctive relief because he is now aware of how much product is contained
within the packaging, and there is therefore no threat of future harm.
“In some cases, the threat of future harm may be the
consumer's plausible allegations that she will be unable to rely on the
product's advertising or labeling in the future, and so will not purchase the
product although she would like to. [Citation.] In other cases, the threat of
future harm may be the consumer's plausible allegations that she might purchase
the product in the future, despite the fact it was once marred by false
advertising or labeling, as she may reasonably, but incorrectly, assume the product
was improved. [Citation.] Either way, … we are ‘not persuaded that injunctive
relief is never available for a consumer who learns after purchasing a product
that the label is false.’ ” (Davidson v. Kimberly-Clark Corporation (9th
Cir. 2018) 889 F.3d 956, 969–970.)
Here, Plaintiff has alleged that he intends to purchase the
Product in the future but cannot reasonably rely on Defendant’s representations
about the Product without the requirement of a fill line. Plaintiff has
adequately alleged future harm.
The Court therefore denies the motion as to Plaintiff’s
request for injunctive relief.