Judge: Randall J. Sherman, Case: 2022-01298406, Date: 2023-07-21 Tentative Ruling

Defendants Welch Foods Inc. and PIM Brands, Inc.’s Demurrer to Complaint is overruled.  Defendants’ Request for Judicial Notice is denied.

Plaintiffs adequately allege both their 1st cause of action for Violation of California Unfair Competition Law, Cal. Business & Professions Code §17200, et seq (UCL) for the Retail Class, and their 2nd cause of action for Violation of California Unfair Competition Law, Cal. Business & Professions Code §17200, et seq (UCL) for the Costco Class.  Plaintiffs need not allege that they actually relied to their detriment on the purported non-functional slack fill in the packaging of the Welch’s Fruit Snacks at issue in making their purchasing decisions, that a reasonable consumer would be misled by the purported non-functional slack fill in the packaging of the products at issue, or that they have standing for products which the Complaint purports to place at issue, but which neither plaintiff alleges to have purchased.

Neither party cites any binding case precedent addressing whether a reliance requirement applies to a claim under the slack-fill laws.  Moreover, plaintiffs contend that they have claims under the unfair and unlawful prongs of the UCL, to which any reliance requirement for fraud claims does not apply.  To the extent defendants challenge part of a cause of action, a demurrer is not the proper vehicle.  Pursuant to 21 C.F.R. §100.100(a) and Bus. & Prof. Code §12606.2(c), a container is deemed misleading if it contains nonfunctional slack-fill and does not fall within a regulatory or statutory exception.  Presumably it would undercut that law if a plaintiff had to prove reliance – arguably both federal regulations and state statutes impute reliance if a violation is established.  Similarly, because statutes and regulations proscribe defendants’ alleged slack-fill violations, courts should not be concerned with whether a so-called reasonable consumer would be misled by a slack-fill violation.  Without binding case law, this court will not impose any of the requirements defendants assert, but will allow plaintiffs’ claims to proceed, and if plaintiffs prevail at trial, defendants may ask either this court or the court of appeal to overturn the jury’s verdict based on what defendants contend the law is or should be.

Defendants also contend that plaintiffs are repeat purchasers, and thus cannot be detrimentally relying on there being a greater volume contained in each box than what is there, since they know how much is inside the box from prior purchases.  Putting aside the issue of whether  there even is a reliance requirement, this argument presents an issue of fact that should be decided by the jury.

Finally, whether plaintiffs may seek relief as to products they may not have purchased is an issue for the class certification stage and should not be decided on demurrer.  Judicial policy in California has long discouraged trial courts from determining class sufficiency at the pleading stage and has directed that this issue be determined by a motion for class certification.  Gutierrez v. California Commerce Club, Inc. (2010) 187 Cal. App. 4th 969, 976.  Representative parties who have a direct and substantial interest have standing; the question whether they may be allowed to present claims on behalf of others who have similar, but not identical, interests depends not on standing, but on an assessment of typicality and adequacy of representation.  In re Tobacco II Cases (2009) 46 Cal. 4th 298, 319.  Thus, this court will not sustain the demurrer (and would not grant a motion to strike) as to specific products.

Plaintiffs are ordered to give notice of the ruling unless notice is waived.