Judge Thomas D. Long, Case 22STCV26729 2022-11-08 Tentative Ruling

On October 12, 2022, Defendant filed a motion to stay this action pending the resolution of Henry v. Nissin Foods (U.S.A.) Co., Inc. (No. 1:22-cv-363) (Henry), which is pending in the United States District Court, Eastern District of New York. Defendant’s request for judicial notice is granted.

When nearly identical actions are in courts of different jurisdictions, the court in the second action may, in its discretion and as a matter of comity, stay that action pending decision in the first action. (Mave Enterprises, Inc. v. Travelers Indemnity Co. (2013) 219 Cal.App.4th 1408, 1423; Gregg v. Superior Court (1987) 194 Cal.App.3d 134, 136; Thomson v. Continental Ins. Co. (1967) 66 Cal.2d 738, 746 (Thomson); Simmons v. Superior Court (1950) 96 Cal.App.2d 119, 123-124.) In doing so, the court should consider “‘the importance of discouraging multiple litigation designed solely to harass an adverse party, and of avoiding unseemly conflicts with the courts of other jurisdictions. It should also consider whether the rights of the parties can best be determined by the court of the other jurisdiction because of the nature of the subject matter, the availability of witnesses, or the stage to which the proceedings in the other court have already advanced.’ [Citation.]” (Thomson, supra, 66 Cal.2d 738, 746-747.)

Plaintiff alleges that some of Defendant’s products contain the icon “NO ADDED MSG,” but they contain ingredients that do contain MSG, making the icon false and misleading to reasonable consumers. (Complaint ¶ 4; see id. at ¶¶ 6-8, 13, 18.) Plaintiff identifies the products at issue: Top Ramen Beef Flavor, Top Ramen Chicken Flavor, Cup Noodles Soup Chicken Flavor, Cup Noodle Seafood, Top Ramen Bowl Chicken Flavor, Cup Noodles Stir Fry, Chow Mein Teriyaki Beef Flavor, Hot and Spicy, and Demae Ramen. (Id. at ¶ 7.) Plaintiff states that between August 2018 and December of 2019, she purchased three of these products: Top Ramen Beef Flavor, Cup Noodles Soup Chicken Flavor, and Cup Noodle Seafood. (Id. at ¶¶ 5, 12, 18, 25.)

Plaintiff alleges that the misbranded products violate section 403 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 343) (“FD&C Act”) and its implementing regulations found in Title 21, Code of Federal Regulations, Part 101 (21 CFR 101), and well as California Health and Safety Code sections 110100, 110290, 110390, 110395, 110398, 110400, 110670, 110680, 110705, 110760, 110765, and 110770. (Id. at ¶¶ 31, 34-36.) Plaintiff alleges causes of action for unlawful and unfair business practices under California’s Unfair Competition Law (“UCL”) and California’s Consumers Legal Remedies Act (“CLRA”).

Plaintiff seeks injunctive relief requiring “Defendant to immediately cease its wrongful conduct as set forth above; enjoin[ing] Defendant from continuing to falsely market and advertise, conceal material information, and conduct business via the unlawful and unfair business acts and practices complained of herein; order[ing] Defendant to engage in a corrective notice campaign.” (Id. at p. 15.)

The plaintiff in Henry seeks to represent a proposed nationwide class and various subclasses consisting of “all persons who purchased a No MSG Product in the United States during the applicable statute of limitations.” (See id. at ¶¶ 3, 65-68.) The “No MSG Products” are Defendant’s “packaged instant noodles including ‘Cup Noodles’ branded noodles, ‘Hot & Spicy’ branded noodles, ‘Chow Mein’ branded noodles, and ‘Top Ramen’ branded noodles” that are labeled as “NO ADDED MSG. (Id. at ¶ 27.)

The Henry complaint alleges that Defendant falsely advertises “no added MSG” when the products contain ingredients that contain free glutamates, which would mislead a reasonable consumer. (See, e.g., id. at ¶¶ 30-34, 38-39, 44, 47-48.)

The Henry complaint alleges, in part, violations of California Business and Professions Code section 17200, California Civil Code section 1750, and the FD&C Act, and it seeks all available injunctive relief. (Id. at ¶¶ 46, 76, 80; id. at p. 28.)

Defendant contends that the federal Henry action involves substantially the same factual issues, legal issues, parties, and relief sought. (Motion at p. 7.) Henry was filed first, on January 21, 2022, and the docket reveals that the case is progressing, with a fully briefed motion to dismiss. (RJN, Exs. A-C.) The motion to dismiss “is already addressing threshold arguments in this case as to whether a false advertising or consumer protection claim can be based on the ‘No Added MSG’ label as a matter of law.” (Motion at p. 12; see RJN, Ex. B.) Both actions seek injunctive relief enjoining Defendant’s allegedly misleading “No Added MSG” labeling of the same products. Both actions allege violations of the same California and federal consumer protection acts. Due to these similarities, allowing Plaintiff’s action to simultaneously proceed here will unnecessarily burden both Defendant and the courts, will result in duplicate discovery, and could result in conflicting rulings.

Plaintiff argues, “At no place in Henry v. Nissin Foods (USA), the term ‘public injunctive relief’ appears. Since the Henry’s action is a class action, it cannot be for the benefit of unascertained ‘public.’” (Opposition at p. 6.) Although the Henry complaint does not use the term “public injunctive relief,” it does seek all available injunctive relief. (RJN, Ex. A at ¶¶ 76, 80; id. at p. 28.)

Plaintiff notes that her complaint covers nine products, and the Henry complaint covers four products. (Opposition at p. 8.) The Henry products are “‘Cup Noodles’ branded noodles, ‘Hot & Spicy’ branded noodles, ‘Chow Mein’ branded noodles, and ‘Top Ramen’ branded noodles.” (RJN, Ex. A at ¶ 27.) Plaintiff’s additional products in this action are the beef, chicken, seafood, stir fry, and demae versions of the Cup Noodles, Hot & Spicy noodles, Chow Mein noodles, and Top Ramen noodles (Complaint ¶ 3)—subcategories that are necessarily included in the broader categories in Henry.

Plaintiff contends that the underlying violations are different. (See Opposition at pp. 8-9.) Both complaints allege violations of California’s UCL, California’s CLRA and the FD&C Act. (See Complaint ¶¶ 2, 38, 55; RJN, Ex. A at ¶¶ 46, 70, 76, 80.)

Plaintiff argues that the two actions do not involve the same parties. (Opposition at p. 9.) Although the Henry class has not yet been certified, Plaintiff admits that she “is a member of the putative class which, if certified, would make Plaintiff Shin a party to the Henry federal action,” but she would opt out. (Opposition at p. 9.) Unless and until that occurs, though, Plaintiff is still a putative class member. And in any event, Plaintiff’s status as a class member does not change the fact that the wrongdoing and relief sought is the same.

Plaintiff also argues that some of Defendant’s cited cases have nothing to do with the issue of misbranded foods. (Opposition at pp. 10-14.) That makes no difference when the cases are cited for the general legal principles and factors governing the Court’s consideration of whether a stay is appropriate.

Plaintiff argues that “the case on point is Peterson v. ConAgra Foods, Inc. (United States District Court, S.D. California. July 29, 2014.) 2014 WL 3741853. Plaintiff Shin wonders why Defendant has not cited Peterson.” (Opposition at p. 12; see id. at p. 10.) The court in Peterson granted in part and denied in part the defendant’s motion to dismiss, finding that federal law preempted state law claims before a certain date. (Peterson v. ConAgra Foods, Inc. (S.D. Cal., July 29, 2014, No. 13-CV-3158-L NLS) 2014 WL 3741853, at pp. *4-5.) Peterson did not involve a motion for a stay pending earlier-filed similar litigation in a different jurisdiction.

Having considered the various facts, the Court finds that it is appropriate to stay the California proceedings in the interest of comity. Accordingly, the motion to stay is GRANTED. This action is STAYED pending resolution of the action in the Eastern District of New York.

A Status Conference Re: Stay is scheduled for 05/10/2023 at 8:30 a.m. in Department 48 at Stanley Mosk Courthouse (May 10, 2023).

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court