CARLOS M. LAZATIN (S.B. #229650) O’MELVENY & MYERS LLP...def.’s mem. of p. & a. iso mot. to...

DEF.’S MEM. OF P. & A. ISOMOT. TO DISMISS & STRIKE

3:14-CV-2570-DMS-JLB

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CARLOS M. LAZATIN (S.B. #229650)[email protected] DANIEL J. FARIA (S.B. #285158) [email protected] O’MELVENY & MYERS LLP 400 South Hope Street Los Angeles, California 90071-2899 Telephone: (213) 430-6000 Facsimile: (213) 430-6407 Attorneys for Defendant CJ America, Inc.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

DENNIS PETERSON,

Plaintiff,

v.

CJ AMERICA, INC.,

Defendant.

Case No. 3:14-CV-2570-DMS-JLB

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CJ AMERICA, INC.’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT OR, IN THE ALTERNATIVE, MOTION TO STRIKE

Judge: Hon. Dana M. Sabraw Courtroom: 13A Hearing Date: April 10, 2015 Hearing Time: 1:30 PM

Case 3:14-cv-02570-DMS-JLB Document 10-1 Filed 02/11/15 of 34

TABLE OF CONTENTS

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I. INTRODUCTION ........................................................................................... 1

II. LEGAL STANDARD ..................................................................................... 2

III. ARGUMENT .................................................................................................. 3

A. Plaintiff Lacks Standing to Assert Claims Regarding Products That He Has Not Purchased. ................................................................. 3

B. Plaintiff Fails to State a Claim Because He Does Not Allege That Annie Chun’s Products Actually Contain MSG. .......................... 8

C. Plaintiff Fails to Meet the Pleading Requirements of Rule 9(b). ....... 10

D. No Reasonable Consumer Could Be Deceived by the “NO MSG ADDED” Statements at Issue in Plaintiff’s Complaint. ..................... 12

E. Plaintiff Fails to State a Claim for Breach of Express Warranty. ....... 14

F. Plaintiff Lacks Article III Standing to Seek Injunctive Relief. .......... 15

G. The Court Should Strike Plaintiff’s Nationwide Class Allegations. ......................................................................................... 17

1. California’s Consumer Protection Laws Vary From Those of Other States in Several Material Respects. .......................... 19

2. Each State Has An Interest in Applying Its Own Consumer Protection Laws. ...................................................... 22

3. Where California Laws Materially Conflict With Those of Other States, Any California Interest in Applying Its Laws Should Yield. .................................................................. 23

IV. CONCLUSION ............................................................................................. 24


TABLE OF AUTHORITIES

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CASES

Ang v. Whitewave Foods Co., 2013 WL 6492353 (N.D. Cal. Dec. 10, 2013) .................................................... 13

Ashcroft v. Iqbal, 556 U.S. 662 (2009) .................................................................................... 3, 9, 11

Astiana v. Dreyer’s Grand Ice Cream, 2012 U.S. Dist. LEXIS 101371 (N.D. Cal. July 20, 2012) ................................... 5

Bates v. UPS, 511 F.3d 974 (9th Cir. 2007) ............................................................................... 16

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................................... 3, 9, 10

Bidwell v. German Motors, Inc., 586 P.2d 1003 (Colo. App. 1978) ..................................................................20-21

Bird v. First Alert, Inc., 2014 U.S. Dist. LEXIS 176390 (N.D. Cal. Dec. 19, 2014) ................................ 16

Bly-Magee v. California, 236 F.3d 1014 (9th Cir. 2001) ............................................................................... 3

Brazil v. Dole Food Co., 2013 U.S. Dist. LEXIS 136921 (N.D. Cal. Sept. 23, 2013) .................................. 5

Bruton v. Gerber Prods. Co., 961 F. Supp. 2d 1062 (N.D. Cal. Sept. 6, 2013) ............................................12-13

Cardenas v. NBTY, Inc., 870 F. Supp. 2d 984 (E.D. Cal. 2012) ................................................................... 7

Chase Resorts, Inc. v. Johns-Manville Corp., 476 F. Supp. 633 (E.D. Mo. 1979) ...................................................................... 21

Chin v. Gen. Mills, Inc., 2013 U.S. Dist. LEXIS 77345 (D. Minn. June 3, 2013) ....................................... 4

Colucci v. ZonePerfect Nutrition Co., 2012 U.S. Dist. LEXIS 183050 (N.D. Cal. Dec. 28, 2012) .................................. 5

Contreras v. Johnson & Johnson Consumer Cos., 2012 U.S. Dist. LEXIS 186949 (C.D. Cal. Nov. 29, 2012) .......................... 4, 6, 8

D’Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031 (9th Cir. 2008) ............................................................................. 16


TABLE OF AUTHORITIES (continued)

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Dabish v. Infinitelabs, LLC, 2014 U.S. Dist. LEXIS 131124 (S.D. Cal. Sept. 17, 2014) ................................ 16

Daugherty v. Ashe, 413 S.E.2d 336 (Va. 1992) .................................................................................. 21

Davidson v. Kimberly-Clark Corp., 2014 U.S. Dist. LEXIS 176394 (N.D. Cal. Dec. 19, 2014) ................................ 16

Discover Bank v. Superior Court, 134 Cal. App. 4th 886 (2005) .............................................................................. 23

Dysthe vs. Basic Research, LLC, 2011 WL 5868307 (C.D. Cal. June 13, 2011) ....................................................... 7

Ewers v. Eisenzopf, 276 N.W.2d 802 (Wis. 1979) .............................................................................. 21

Fieldstone Co. v. Briggs Plumbing Prods, Inc., 54 Cal. App. 4th 357 (1997) ................................................................................ 21

Flory v. Silvercrest Indus. Inc., 633 P.2d 383 (Ariz. 1981) ................................................................................... 21

Fortune View Condo. Ass’n v. Fortune Star Dev. Co., 151 Wn.2d 534 (Wash. 2004) .............................................................................. 21

Freeman v. Time, Inc., 68 F.3d 285 (9th Cir. 1995) ................................................................................. 12

Frenzel v. Aliphcom, 2014 U.S. Dist. LEXIS 177880 (N.D. Cal. Dec. 29, 2014) .......................... 17, 24

Frezza v. Google, Inc., 2013 U.S. Dist. LEXIS 57462 (N.D. Cal. Apr. 22, 2013) .................................. 17

Granfield v. Nvidia Corp., 2012 U.S. Dist. LEXIS 98678 (N.D. Cal. July 11, 2012) ................................... 17

Hairston v. S. Beach Bev. Co., 2012 U.S. Dist. LEXIS 74279 (C.D. Cal. May 18, 2012) ............................... 4, 13

Hill v. Roll Int’l Corp., 195 Cal. App. 4th 1295 (2011) ............................................................................ 12

Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999) ............................................................................. 16

Horvath v. LG Elecs. MobileComm U.S.A., Inc., 2012 U.S. Dist. LEXIS 19215 (S.D. Cal. Feb. 13, 2013) ................................... 17



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In re Bridgestone Firestone, Inc., 288 F.3d 1012 (7th Cir. 2002) ............................................................................. 19

In re Grand Theft Auto Video Game Consumer Litig., 251 F.R.D. 139 (S.D.N.Y. 2008) ......................................................................... 24

In re HP Inkjet Printer Litig., 2008 WL 2949265 (N.D. Cal. July 25, 2008) ..................................................... 19

In re Sony Litig., 758 F. Supp. 2d 1077 (S.D. Cal. 2010) ............................................................... 10

In re Stacs Elecs. Sec. Litig., 89 F.3d 1399 (9th Cir. 1996) ............................................................................... 10

Ivie v. Kraft Foods Global, Inc., 2013 U.S. Dist. LEXIS 25615 (N.D. Cal. Feb. 25, 2013) ................................. 4, 6

Johns v. Bayer Corp., 2010 U.S. Dist. LEXIS 10926 (S.D. Cal. Feb. 9, 2010) ................................... 4, 5

Johnson v. Mitsubishi Digital Elec. Am., Inc., 578 F. Supp. 2d 1229 (C.D. Cal. 2008) ............................................................... 21

Jones v. Kellner, 451 N.E.2d 548 (Ohio Ct. App. 1982) ................................................................ 21

Kane v. Chobani, Inc., 2014 WL 657300 (N.D. Cal. Feb. 20, 2014) ....................................................... 11

Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir. 2009) ............................................................................... 3

Keith v. Buchanan, 173 Cal. App. 3d 13 (1985) ................................................................................. 14

Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134 (2003) ....................................................................................... 20

Kosta v. Del Monte Corp., 2013 U.S. Dist. LEXIS 69319 (N.D. Cal. May 15, 2013) .................................... 7

Kwikset Corp. v. Superior Court, 51 Cal. 4th 310 (2011) ........................................................................................... 4

Lam v. Gen. Mills, Inc., 859 F. Supp. 2d 1097 (N.D. Cal. 2012) ..........................................................14-15

Leonhart v. Nature’s Path Foods, Inc., 2014 WL 1338161 (N.D. Cal. Mar. 31, 2014) .................................................. 6, 7



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Lewis v. Casey, 518 U.S. 343 (1996) .............................................................................................. 6

Lieberson v. Johnson & Johnson Consumer Cos., 865 F. Supp. 2d 529 (D.N.J. 2011) ........................................................................ 5

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .............................................................................................. 4

Lutz Farms v. Asgrow Seed Co., 948 F.2d 638 (10th Cir. 1991) ............................................................................. 21

Major v. Ocean Spray Cranberries, Inc., 2013 U.S. Dist. LEXIS 81394 (N.D. Cal. June 10, 2013) .................................... 8

Maya v. Centex Corp., 658 F.3d 1060 (9th Cir. 2011) ........................................................................... 3, 5

Maybank v. S.S. Kresge Co., 273 S.E.2d 681 (N.C. 1981) ................................................................................ 22

Mazza v. Am. Honda Motor Co., 666 F.3d 581 (9th Cir. 2012) ........................................................................ passim

McCann v. Foster Wheeler LLC, 48 Cal. 4th 68 (2010) ..................................................................................... 19, 22

McKinniss v. Gen. Mills, Inc., 2007 U.S. Dist. LEXIS 96107 (C.D. Cal. Sept. 18, 2007) ............................ 14, 15

McKinniss v. Kellogg USA, 2007 U.S. Dist. LEXIS 96106 (C.D. Cal. Sept. 21, 2007) .................................. 12

Meyer v. Sprint Spectrum, L.P., 45 Cal. 4th 634 (2009) ........................................................................................... 4

Mlejnecky v. Olympus Imaging Am. Inc., 2011 U.S. Dist. LEXIS 42333 (E.D. Cal. Apr. 19, 2011) ..................................... 4

Padilla v. Costco Wholesale Corp., 2012 U.S. Dist. LEXIS 87222 (N.D. Ill. June 21, 2012) ...................................... 4

Performance Motors, Inc. v. Allen, 186 S.E.2d 161 (N.C. 1972) ................................................................................ 21

Reichhold Chem., Inc. v. Haas, 1989 Ohio App. LEXIS 4129 (Ct. App. Nov. 3, 1989) ...................................... 21

Reilly v. Amy’s Kitchen, 2013 U.S. Dist. LEXIS 188683 (S.D. Fla. Dec. 9, 2013) ..................................... 4



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Ries v. Ariz. Bevs. U.S. LLC, 287 F.R.D. 523 (N.D. Cal. 2012) ........................................................................ 16

Rikos v. Procter & Gamble, 2012 U.S. Dist. LEXIS 25104 (S.D. Ohio Feb. 28, 2012) ............................ 17, 21

Robinson v. Lynmar Racquet Club, Inc., 851 P.2d 274 (Colo. App. 1993) ......................................................................... 20

Route v. Mead Johnson Nutrition Co., 2013 U.S. Dist. LEXIS 35069 (C.D. Cal. Feb. 21, 2013) ............................... 3, 17

Savage v. Glendale Union High Sch., 343 F.3d 1036 (9th Cir. 2003) ............................................................................... 3

Seaside Resorts, Inc. v. Club Car, Inc., 416 S.E.2d 655 (S.C. Ct. App. 1992) .................................................................. 22

Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880 (9th Cir. 1983) ................................................................................. 3

Smedt v. Hain Celestial Grp., 2014 WL 246688 (N.D. Cal. May 30, 2014) ........................................................ 6

Stearns v. Select Comfort Retail Corp., 763 F. Supp. 2d 1128 (N.D. Cal. 2010) ............................................................... 22

Sugawara v. Pepsico, Inc., 2009 U.S. Dist. LEXIS 43127 (E.D. Cal. May 21, 2009) ............................. 12, 14

T.W.M. v. Am. Med. Sys., 886 F. Supp. 842 (N.D. Fla. 1995) ...................................................................... 21

Thomas v. Costco Wholesale Corp., 2014 U.S. Dist. LEXIS 46405 (N.D. Cal. Mar. 31, 2014) .............................. 9, 10

Vasic v. Patent Health, LLC, 2014 U.S. Dist. LEXIS 33181 (S.D. Cal. Mar. 10, 2014) ..................................... 7

Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003) ............................................................................. 10

Wagner Tractor, Inc. v. Shields, 381 F.2d 441 (9th Cir. 1967) ............................................................................... 22

Waller v. Hewlett-Packard Co., 2012 U.S. Dist. LEXIS 77366 (S.D. Cal. June 1, 2012) ..................................... 17

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) .......................................................................................... 7



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Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136 (9th Cir. 2003) ............................................................................... 5

Wash. Mut. Bank, FA v. Superior Court, 24 Cal. 4th 906 (2001) ......................................................................................... 23

Werbel ex rel. v. Pepsico, Inc., 2010 U.S. Dist. LEXIS 76289 (N.D. Cal. July 2, 2010) ..................................... 12

Williams v. Beechnut Nutrition Corp., 185 Cal. App. 3d 135 (1986) ..........................................................................21-22

Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180 (9th Cir. 2001) ............................................................................. 22

STATUTES

28 U.S.C. § 2072 ......................................................................................................... 7 Ala. Code § 8-19-10(f) ............................................................................................. 20 Ala. Code § 8-19-3(2) ............................................................................................... 19 Cal. Bus. & Prof. Code § 17204 ................................................................................. 4 Cal. Bus. & Prof. Code § 17535 ................................................................................. 4 Cal. Civ. Code § 1780(a) ............................................................................................ 4 Cal. Com. Code § 2313 ....................................................................................... 14, 18 Colo. Rev. Stat. Ann. § 61-1-113 ............................................................................. 20 Fla. Stat. Ann. § 501.204(1) ..................................................................................... 19 Ga. Code Ann. § 10-1-372 ........................................................................................ 19 Ga. Code Ann. § 10-1-392(a)(10) ............................................................................ 19 Ga. Code Ann. § 10-1-399(a) ................................................................................... 20 Kan. Stat. Ann. § 50-626(a) ...................................................................................... 19 La. Rev. Stat. § 51:1409(A) ...................................................................................... 20 Miss. Code Ann. § 75-24-15(4) ................................................................................ 20 Miss. Code Ann. § 75-24-5(1) .................................................................................. 19 Mont. Code Ann. § 30-14-133(1) ............................................................................. 20 N.J. Stat. § 56:8-19 ................................................................................................... 20



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Ohio Rev. Code Ann. § 1345.09(b) .......................................................................... 20 S.C. Code Ann. § 39-5-140(a) .................................................................................. 20 S.C. Code Ann. § 39-5-20(a) .................................................................................... 19 S.D. Codified Laws § 37-24-6 .................................................................................. 19 Utah Code Ann. § 13-11-4(2) ................................................................................... 21 Va. Code § 59.1-204(A-B) ....................................................................................... 20

RULES

Fed. R. Civ. P. 12(b)(1) .............................................................................................. 3 Fed. R. Civ. P. 12(b)(6) ..................................................................................... passim Fed. R. Civ. P. 12(f) ........................................................................................... passim Fed. R. Civ. P. 9(b) ............................................................................................ passim


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I. INTRODUCTION Defendant CJ America, Inc. (“CJ”) is the maker of the popular “Annie

Chun’s” line of Asian gourmet noodle bowls, soup bowls, and ramen noodles—

offering consumers such favorites as pad thai, hot and sour soup, and pho noodles

in a pre-cooked, easy-to-prepare meal format. Through its Annie Chun’s products,

CJ aims to introduce a diversity of Asian foods and flavors into American kitchens.

Plaintiff Dennis Peterson is a California resident who alleges that he made a

single purchase of an Annie Chun’s product, the Udon Soup Bowl, in July 2013.

Peterson then filed this putative class action lawsuit, purporting to assert claims on

behalf of a nationwide class of purchasers of the Udon Soup Bowl and fifteen other

Annie Chun’s products he never purchased. The crux of plaintiff’s claims is that

the statement “NO MSG ADDED,” which allegedly appeared on these products’

packaging, is inaccurate because certain ingredients in the products purportedly

contain MSG or “are known to contain MSG.” The Complaint alleges causes of

action for violation of (1) the California Consumers Legal Remedies Act, Cal. Civ.

Code § 1750 et seq. (“CLRA”); (2) California’s False Advertising Law, Cal. Bus.

& Prof. Code § 17500 et seq. (“FAL”); (3) California’s Unfair Competition Law,

Cal. Bus. & Prof. Code § 17200 et seq. (“UCL”); and (4) for breach of express

warranty under Section 2313 of the California Commercial Code.

At the threshold, plaintiff’s claims are subject to dismissal because plaintiff

asserts claims and seeks relief to which, on the face of the pleadings, he is not

entitled. First, plaintiff attempts to assert claims as to sixteen Annie Chun’s

products where he has not purchased and thus lacks standing to pursue claims

regarding fifteen of them. Second, plaintiff demands injunctive relief in the form of

corrective advertising, even though he alleges that he would never have purchased

the Udon Soup Bowl had he known it purportedly contained MSG. A plaintiff

lacks Article III standing to seek injunctive relief concerning an allegedly

mislabeled product where, as here, he cannot allege a sufficient likelihood that he


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will purchase it again. Finally, plaintiff purports to bring this putative class action

on behalf of a nationwide class of consumers under California law. The Ninth

Circuit’s decision in Mazza v. American Honda Motor Co., 666 F.3d 581 (9th Cir.

2012), forecloses those claims.

Plaintiff’s claims fare no better on the merits, even at the pleading stage.

Although plaintiff claims to have been misled about the purported MSG content of

the Udon Soup Bowl, his Complaint does not allege that that product, or any of the

other Annie Chun’s products listed in the Complaint, actually contains any MSG.

Instead, his allegation is that those products include ingredients that “contain MSG

or are known to contain MSG”—in other words, the ingredients in the products

may or may not contain MSG. Plaintiff cannot state a claim for inaccurate labeling

when he cannot even allege that the labeling is inaccurate. For the same reason,

plaintiff does not plead his claims with the particularity required by Rule 9(b).

Plaintiff’s claims also fail as a matter of law because no reasonable consumer

would read the statement “NO MSG ADDED” to mean “NO MSG.” Annie Chun’s

labels accurately inform consumers—particularly those who may be sensitive to

MSG or who may wish to avoid products with added MSG—that the level of MSG

in the products has not been artificially increased, that is, that no MSG has been

added to the product. And that is precisely what the label says. Plaintiff’s

misreading of the product label is unreasonable as a matter of law and cannot

support his California statutory and breach of warranty claims.

For these reasons, CJ respectfully requests an order dismissing plaintiff’s

Complaint and striking: (1) all claims as to non-purchased products and ingredients

contained only in non-purchased products; (2) all claims for injunctive relief; and

(3) plaintiff’s nationwide class allegations.

II. LEGAL STANDARD Defendants may challenge a claim through a motion to dismiss when a court

lacks subject matter jurisdiction or when a plaintiff fails to state a claim upon which


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relief can be granted. Fed. R. Civ. P. 12(b)(1), 12(b)(6). A motion to dismiss for

lack of subject matter jurisdiction under Rule 12(b)(1) should be granted if the

complaint fails to allege facts sufficient to establish subject matter jurisdiction. See

Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039-40 (9th Cir. 2003). A

plaintiff’s lack of Article III standing requires dismissal for lack of subject matter

jurisdiction. Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011).

Under Rule 12(b)(6), a court should dismiss a complaint that does not set

forth sufficient facts to establish the elements of a claim and is not “plausible on its

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The court need not

accept conclusory allegations, unreasonable inferences, or legal conclusions set out

in the form of factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009).

Fraud-based claims must go further and be pled with particularity under Rule 9(b).

Plaintiff must describe the allegedly fraudulent statement, and state in detail who

made the statement, where and when it was made, that it was false when made, and

how it was false. Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009);

see also Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001).

Under Rule 12(f), the Court “may strike from a pleading an insufficient

defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R.

Civ. P. 12(f). The function of a Rule 12(f) motion to strike is “to avoid the

expenditure of time and money that must arise from litigating spurious issues by

dispensing with those issues prior to trial . . . .” Sidney-Vinstein v. A.H. Robins Co.,

697 F.2d 880, 885 (9th Cir. 1983). A court may strike nationwide class allegations

if they are unsustainable on the face of the complaint. Route v. Mead Johnson

Nutrition Co., 2013 U.S. Dist. LEXIS 35069, at *22-27 (C.D. Cal. Feb. 21, 2013).

III. ARGUMENT A. Plaintiff Lacks Standing to Assert Claims Regarding Products

That He Has Not Purchased.

Although the Complaint purports to implicate sixteen Annie Chun’s


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products, plaintiff only alleges that he purchased one of these products—the Udon

Soup Bowl. (Compl. ¶¶ 2 n.1, 9.) All claims regarding the fifteen Annie Chun’s

products that plaintiff did not purchase should be dismissed with prejudice as

plaintiff lacks standing under both Article III of the United States Constitution and

under California’s consumer protection laws to assert claims regarding them.

Article III of the United States Constitution confers subject matter

jurisdiction only where a plaintiff alleges an “injury in fact” that is “concrete and

particularized” and “actual or imminent.” Lujan v. Defenders of Wildlife, 504 U.S.

555, 560 (1992). Economic injury is also required to establish standing for

plaintiff’s California statutory claims. Cal. Bus. & Prof. Code §§ 17204 & 17535

(UCL and FAL require injury in fact and loss of money or property as a result of

alleged violation); Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 317, 320-27

(2011) (plaintiffs must “truthfully allege they were deceived by a product’s label

into spending money to purchase the product, and would not have purchased it

otherwise”); Cal. Civ. Code § 1780(a) (CLRA); Meyer v. Sprint Spectrum, L.P., 45

Cal. 4th 634, 638 (2009) (a plaintiff lacks standing under the CLRA absent an

allegation that he has been damaged by an alleged unlawful practice).

A plaintiff lacks standing to assert claims regarding non-purchased products,

as that plaintiff cannot have been injured by labeling claims that he did not read or

rely upon that were made on products that he did not purchase. See, e.g., Johns v.

Bayer Corp., 2010 U.S. Dist. LEXIS 10926, at *11-13 (S.D. Cal. Feb. 9, 2010)

(Sabraw, J.); Ivie v. Kraft Foods Global, Inc., 2013 U.S. Dist. LEXIS 25615, at

*12-13 (N.D. Cal. Feb. 25, 2013).1 This is a threshold issue of subject matter 1 See also Reilly v. Amy’s Kitchen, 2013 U.S. Dist. LEXIS 188683, at *4-6 (S.D. Fla. Dec. 9, 2013) (dismissing claims as to non-purchased products for lack of standing); accord Chin v. Gen. Mills, Inc., 2013 U.S. Dist. LEXIS 77345, at *7-9 (D. Minn. June 3, 2013); Contreras v. Johnson & Johnson Consumer Cos., 2012 U.S. Dist. LEXIS 186949, at *5-6 (C.D. Cal. Nov. 29, 2012); Padilla v. Costco Wholesale Corp., 2012 U.S. Dist. LEXIS 87222, at *5-10 (N.D. Ill. June 21, 2012); Hairston v. S. Beach Bev. Co., 2012 U.S. Dist. LEXIS 74279, at *16 n.5 (C.D. Cal. May 18, 2012); Mlejnecky v. Olympus Imaging Am. Inc., 2011 U.S. Dist. LEXIS


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jurisdiction which should be addressed at the pleading stage. The elements of

standing are an indispensable part of a plaintiff’s case and must be supported at

each stage of litigation in the same manner as any other essential element. Warren

v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1140 (9th Cir. 2003). A plaintiff’s

lack of Article III standing necessitates dismissal of that plaintiff’s claims under

Rule 12(b)(1). Maya, 658 F.3d at 1067.

In Johns, a case decided by this Court, a putative class representative asserted

UCL, CLRA, and unjust enrichment claims against a manufacturer of vitamins

arising out of alleged misrepresentations concerning the effectiveness of the

vitamins in preventing prostate cancer. 2010 U.S. Dist. LEXIS 10926, at *1-2.

Plaintiff attempted to bring claims regarding two versions of the defendant’s

vitamins even though he had only purchased one of them. Id. at *3, 10. Analyzing

the statutory standing requirements of the UCL and CLRA, this Court dismissed the

claims regarding the non-purchased vitamins, finding that a named plaintiff “cannot

expand the scope of his claims to include a product he did not purchase or

advertisements relating to a product that he did not rely upon.” Id. at *13.

Some courts have declined to follow this line of authorities and have allowed

class claims regarding non-purchased products to proceed so long as the non-

purchased products at issue are “substantially similar” to products the plaintiff did

purchase. See, e.g., Brazil v. Dole Food Co., 2013 U.S. Dist. LEXIS 136921, at

*22-27 (N.D. Cal. Sept. 23, 2013); Colucci v. ZonePerfect Nutrition Co., 2012 U.S.

Dist. LEXIS 183050, at *11 (N.D. Cal. Dec. 28, 2012); Astiana v. Dreyer’s Grand

Ice Cream, 2012 U.S. Dist. LEXIS 101371, at *32-38 (N.D. Cal. July 20, 2012).

The “substantially similar” test misapplies constitutional and statutory standing

requirements. A putative class representative may not rely on injuries that other

putative class members have purportedly suffered and must allege that he has been 42333, at *11-13 (E.D. Cal. Apr. 19, 2011); Lieberson v. Johnson & Johnson Consumer Cos., 865 F. Supp. 2d 529, 537 (D.N.J. 2011).


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personally injured by a defendant’s conduct. Lewis v. Casey, 518 U.S. 343, 357

(1996). And that personal injury cannot be established where a plaintiff has never

spent money on a product or viewed the purportedly false statements. E.g., Ivie,

2013 U.S. Dist. LEXIS 25615, at *13 (“[T]here can be no requisite pecuniary injury

where plaintiff did not herself purchase the product at issue.”); Contreras, 2012

U.S. Dist. LEXIS 186949, at *6 (“Having admittedly not purchased three of the

four sunscreen products at issue in this case, Plaintiff cannot have suffered any

injury in fact with respect to those products, and therefore lacks Article III standing

in that regard.”).

Even if the substantially similar test were applied here, however, plaintiff has

not alleged that any of the non-purchased products is “substantially similar” to the

Udon Soup Bowl. See, e.g., Leonhart v. Nature’s Path Foods, Inc., 2014 WL

1338161, at *4–5 (N.D. Cal. Mar. 31, 2014) (dismissing claims based on non-

purchased products where “Plaintiff [did] not allege that the products [were]

substantially similar beyond having the same labeling statements”); Smedt v. Hain

Celestial Grp., 2014 U.S. Dist. LEXIS 74291, at *16-22 (N.D. Cal. May 30, 2014)

(dismissing claims as to non-purchased products for failure to plead with

particularity how such products were “substantially similar” to purchased products).

Nor has plaintiff alleged any facts from which a court could plausibly infer that

these non-purchased products are substantially similar to the Udon Soup Bowl. In

fact, his allegations make clear that they are not. Although plaintiff’s chart of

purportedly misbranded products lists twelve “deceptively labeled ingredients,” the

Udon Soup Bowl is alleged to contain only four of those ingredients. (Compl. ¶

27.) And none of the non-purchased products, which range from soup bowls, to

noodle bowls, to ramen noodles, contains the same combination of ingredients as

the Udon Soup Bowl. (Id.) All of the non-purchased products are distinct Annie

Chun’s products containing different varieties of ingredients in different

proportions. (Id.) The fact that all of these non-purchased products allegedly bear


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the same “NO MSG ADDED” statement as the Udon Soup Bowl does not itself

confer standing on plaintiff. Leonhart, 2014 WL 1338161, at *4. Nor does the fact

that some non-purchased products contain some of the same ingredients as the

Udon Soup Bowl. See, e.g., Dysthe vs. Basic Research, LLC, 2011 WL 5868307, at

*4-5 (C.D. Cal. June 13, 2011).

In Dysthe, for instance, a putative class representative attempted to assert

false advertising claims concerning one version of defendant’s weight loss

supplements that she did purchase and another version that she did not. 2011 WL

5868307, at *1. Citing this Court’s decision in Johns, the court dismissed all

claims as to the non-purchased supplement where it contained a different number

and combination of ingredients than the purchased supplement. Id. at *4-5

(“Having a few common ingredients is simply not enough to show the Products are

the same or even ‘nearly identical.’ In fact, this is true for just about any type of

product. After all, just because an Old Fashioned and a Manhattan both have

bourbon doesn’t mean they’re the same drink.”).

Another group of courts has declined to find that plaintiffs lack Article III

standing to assert claims regarding non-purchased products, substantially similar or

not, reasoning that the issue is better addressed at class certification. See, e.g.,

Vasic v. Patent Health, LLC, 2014 U.S. Dist. LEXIS 33181, at *16-19 (S.D. Cal.

Mar. 10, 2014); Kosta v. Del Monte Corp., 2013 U.S. Dist. LEXIS 69319, at *48-

51 (N.D. Cal. May 15, 2013); Cardenas v. NBTY, Inc., 870 F. Supp. 2d 984, 992

(E.D. Cal. 2012). This line of authorities cannot be squared with the Rules

Enabling Act, 28 U.S.C. § 2072, which “forbids interpreting Rule 23 to ‘abridge,

enlarge or modify any substantive right,’” Wal-Mart Stores, Inc. v. Dukes, 131 S.

Ct. 2541, 2561 (2011), and here, would not permit a plaintiff to bring a claim on a

class-wide basis that he would not have standing to bring individually. Moreover,

postponing consideration of the propriety of plaintiff’s claims as to non-purchased

products until class certification would be both unwarranted and inefficient. It


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would unnecessarily expand the scope and cost of discovery and litigation where

(1) plaintiff has no standing to bring claims for products he never purchased and (2)

those claims cannot be certified because plaintiff cannot meet the typicality and

adequacy requirements of Rule 23. See, e.g., Major v. Ocean Spray Cranberries,

Inc., 2013 U.S. Dist. LEXIS 81394, at *8-14 (N.D. Cal. June 10, 2013) (denying

class certification because “the typicality requirement has not been met” where

proposed class encompassed non-purchased products); Contreras, 2012 U.S. Dist.

LEXIS 186949, at *6 (“Whether or not all four products share things in common

for purposes of demonstrating commonality, typicality or predominance is

effectively irrelevant to the question of whether Plaintiff herself has suffered an

injury in fact with regard to all four products. She has not”).

All of plaintiff’s claims as to non-purchased products and ingredients

contained only in non-purchased products should therefore be dismissed. The

Court also should strike plaintiff’s definition of “Subject Products” to the extent it

incorporates non-purchased products and plaintiff’s definition of “Deceptively

Labeled Ingredients” to the extent it incorporates ingredients that are not alleged to

be present in the Udon Soup Bowl. (Compl. ¶¶ 2 n.1, 26-27.)

B. Plaintiff Fails to State a Claim Because He Does Not Allege That Annie Chun’s Products Actually Contain MSG.

All of plaintiff’s claims are premised on the charge that Annie Chun’s

products contain MSG, yet plaintiff fails to allege that the ingredients in these

products actually contain MSG. Plaintiff’s claims should therefore be dismissed

because plaintiff fails to state a claim. See Twombly, 550 U.S. at 570 (a complaint

must be dismissed where it does not contain enough facts to establish the elements

of a claim and is not “plausible on its face.”); Thomas v. Costco Wholesale Corp.,

2014 U.S. Dist. LEXIS 46405, at *16 (N.D. Cal. Mar. 31, 2014) (dismissing false

advertising claims over “no trans fat” labels where plaintiff failed to allege that

accused products actually contained trans fat).


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In paragraph 27 of the Complaint, plaintiff purports to list the ingredients that

he believes are responsible for the MSG content of the accused Annie Chun’s

products. However, by plaintiff’s account, these listed ingredients are “processed

ingredients that contain MSG or are known to contain MSG,” and the products

“may also contain other ingredients that contain MSG or are known to contain

MSG.” (Compl. ¶ 27 (emphasis added).) Plaintiff pointedly does not allege that

the listed ingredients “contain MSG.” Rather, he alleges that these ingredients

either “contain MSG or are known to contain MSG.” The latter description, “are

known to contain MSG,” cannot mean the same thing as “contain MSG;”

otherwise, plaintiff would have simply averred that all the listed ingredients

“contain MSG.” Instead, plaintiff alleges that some or all of the listed ingredients

may simply be ingredients that “are known to contain MSG”—in other words, they

sometimes, but do not always, contain MSG.

Plaintiff’s allegations thus leave open the possibility that some or all of the

listed ingredients—and some or all of the listed products—contain no MSG at all.

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556

U.S. at 678. “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. A plaintiff asserting false advertising claims

regarding an allegedly undisclosed ingredient in a product cannot plausibly allege

an injury where he cannot even allege that the product contains that ingredient.

See, e.g., Thomas, 2014 U.S. Dist. LEXIS 46405, at *16.

In Thomas, a putative class representative claimed to be deceived by “no

trans fat” and “0 grams trans fat” representations on potato chip labels. Id. at *15-

16. However, the plaintiff did not allege that the accused products actually

contained trans fat. Id. at *16. All she alleged was that she was led to believe that

the product would only have positive contributions to her diet. Id. Because the


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plaintiff did not expressly allege that the accused products actually contained trans

fat, the court dismissed her claims for failure to allege an injury. Id. at *15-19.

Here too, plaintiff Peterson fails to allege that any of the accused Annie

Chun’s products actually contains MSG. This obvious deficiency necessitates

dismissal of all of his claims. Twombly, 550 U.S. at 570.

C. Plaintiff Fails to Meet the Pleading Requirements of Rule 9(b). All of plaintiff’s claims sound in fraud and, therefore, must meet the

particularity requirements of Federal Rule of Civil Procedure 9(b). Specifically,

plaintiff must “set forth an explanation as to why the statement or omission

complained of was false or misleading,” and facts showing “the statement or

omission [was] false or misleading when made.” In re Stacs Elecs. Sec. Litig., 89

F.3d 1399, 1404 (9th Cir. 1996); see also Vess v. Ciba-Geigy Corp. USA, 317 F.3d

1097, 1106 (9th Cir. 2003) (Rule 9(b) applies to UCL, FAL, and CLRA claims

sounding in fraud). The Complaint falls well short of this standard for two reasons.

First, as discussed above, plaintiff fails to explain why the statement “NO

MSG ADDED” is false or misleading when the Complaint does not even allege that

the ingredients in these products actually contain MSG.2 Plaintiff alleges only that

certain ingredients in the products either “contain MSG” or “are known to

contain”—i.e., may or may not contain—MSG. (Compl. ¶ 27.) He also does not

explain what “known to contain MSG” means, to whom it is “known” that these

ingredients may contain MSG, and how it is “known” that they may contain MSG.

See Vess, 317 F.3d at 1106 (a plaintiff asserting consumer protection claims must

state in detail, among other things, how a defendant’s conduct was deceptive). 2 While CJ believes that the statement “NO MSG ADDED” is entirely accurate and not misleading because there is no allegation MSG was ever added to the accused Annie Chun’s products, it certainly is beyond dispute that the statement cannot be false or misleading if the products are not alleged to contain any MSG. See, e.g., In re Sony Litig., 758 F. Supp. 2d 1077, 1089 (S.D. Cal. 2010) (dismissing breach of warranty claims on Rule 9(b) grounds where plaintiffs failed to allege that products actually did not live up to the terms of the warranty during the warranty period).


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Second, plaintiff is also unclear as to what exactly he claims is in the accused

Annie Chun’s products that supposedly renders the “NO MSG ADDED” claims on

those products false or misleading. At certain points in the Complaint, plaintiff

defines “MSG” as the processed ingredient “monosodium glutamate” (Compl.

¶¶ 16, 20), which he describes as an artificial food additive (id. ¶¶ 17-18). But the

Complaint also refers vaguely to “glutamic acid” and “naturally occurring MSG”

(id. ¶¶ 16, 21, 22), which are not artificially produced or used as artificial food

additives. Plaintiff does not clarify whether he believes the accused Annie Chun’s

products contain the food additive monosodium glutamate, “glutamic acid,”

“naturally occurring MSG,” or some other substance.

The result of these pleading deficiencies is a complaint that leaves CJ

guessing as to why plaintiff contends the labeling for the Udon Soup Bowl is false

or misleading, what plaintiff once believed the product did not contain, and what

plaintiff now believes the product does contain. Plaintiff’s threadbare allegations as

to the alleged “MSG” content of Annie Chun’s products render the Complaint

insufficient even under Rule 8(a)’s liberal standards. See, e.g., Iqbal, 556 U.S. at

681 (a court need not accept conclusory allegations, unreasonable inferences, or

legal conclusions as true).3 And they certainly do not meet Rule 9(b)’s heightened

pleading requirement for claims sounding in fraud. See Kane v. Chobani, Inc.,

2014 WL 657300, at *7-11 (N.D. Cal. Feb. 20, 2014) (dismissing false advertising

claims where plaintiffs failed sufficiently to allege how they were deceived by use

of the term “evaporated cane juice”).

Accordingly, all of plaintiff’s claims should be dismissed on the additional

ground that they are not pled with particularity under Rule 9(b). 3 Plaintiff’s allegations as to the ingredients “spices” and “natural flavor” are perhaps the most extreme example of the insufficiency of plaintiff’s allegations under Rule 9(b). Nowhere in the Complaint does plaintiff clarify which “spices” or “flavors” he believes contain MSG or are “known to contain MSG.” (Compl. ¶ 27.) Nor does plaintiff clarify whether it is his position that any food product containing a spice or natural flavor contains MSG or is “known to contain MSG.”


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D. No Reasonable Consumer Could Be Deceived by the “NO MSG ADDED” Statements at Issue in Plaintiff’s Complaint.

Plaintiff’s UCL, FAL, and CLRA claims also fail and should be dismissed

because they are implausible as a matter of law. Specifically, plaintiff fails

plausibly to allege how a reasonable consumer could have believed that a product

labeled “NO MSG ADDED” contained no MSG of any sort.

Whether labels or advertisements are deceptive under these statutes is

governed by a “reasonable consumer” standard. Hill v. Roll Int’l Corp., 195 Cal.

App. 4th 1295, 1304 (2011); see also Freeman v. Time, Inc., 68 F.3d 285, 289 (9th

Cir. 1995). A court may grant a motion to dismiss false advertising claims when it

concludes as a matter of law that a reasonable consumer could not be deceived by

the product’s packaging. See, e.g., Werbel ex rel. v. Pepsico, Inc., 2010 U.S. Dist.

LEXIS 76289, at *8-13 (N.D. Cal. July 2, 2010); Sugawara v. Pepsico, Inc., 2009

U.S. Dist. LEXIS 43127, at *5-10 (E.D. Cal. May 21, 2009) (accord); McKinniss v.

Kellogg USA, 2007 U.S. Dist. LEXIS 96106, at *8-13 (C.D. Cal. Sept. 21, 2007)

(same). The “reasonable consumer” is not the “least sophisticated” or “unwary”

consumer. Hill, 195 Cal. App. 4th at 1304. And a plaintiff’s allegations that he

himself was personally deceived are insufficient to show that a reasonable

consumer is likely to be deceived. Id.

Plaintiff’s UCL, FAL, and CLRA claims are all premised on the implausible

theory that the phrase “NO MSG ADDED” would lead consumers to believe that a

product contains no MSG at all. (Compl. ¶¶ 3, 27.) But the Complaint does not

allege that the accused products are labeled with a statement that they contain “NO

MSG”—only that they have “NO MSG ADDED.” Nor does plaintiff explain how

a reasonable consumer could ignore the word “ADDED” when reading the claim

“NO MSG ADDED” and assume that the product did not contain any MSG at all.

A reasonable consumer is not expected to rely only on certain words on a

label in isolation while ignoring other words or qualifying phrases. See, e.g.,


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Bruton v. Gerber Prods. Co., 961 F. Supp. 2d 1062, 1097-98 (N.D. Cal. Sept. 6,

2013) (dismissing plaintiff’s UCL, FAL, and CLRA claims where plaintiff failed to

explain why a reasonable consumer would read a “Made with 100% Natural Fruit”

label and believe the entire product was 100% natural); Ang v. Whitewave Foods

Co., 2013 WL 6492353, at *4 (N.D. Cal. Dec. 10, 2013) (holding that a reasonable

consumer would not disregard the word “soy” or “almond” on a label for “soymilk”

or “almond milk” and believe that the products contained cow’s milk).

In Ang, plaintiffs alleged that use of the terms “soymilk” or “almond milk”

on beverage labels misled members of the public into believing that the products

contained cow’s milk. 2013 WL 6492353, at *1. The court dismissed these claims

with prejudice after finding that no reasonable consumer would read the term

“milk” in isolation and ignore the fact that the products were described as “soy”

milk and “almond” milk. Id. at *4. Similarly, in Bruton, the court dismissed claims

that a “Made with 100% Natural Fruit” label on baby food products implied that the

products were composed entirely of natural ingredients. 961 F. Supp. 2d at 1098.

As the court explained, no reasonable consumer would take a “100% Natural Fruit”

claim out of context, ignore the term “fruit,” and assume that every ingredient in the

product was natural. Id. Because the plaintiff failed to “explain why a label

claiming that a product is ‘Made with 100% Natural Fruit’ plausibly implies that

the entire product—which contains ingredients other than fruit—is free of synthetic

ingredients,” the plaintiff had not plausibly alleged claims under the UCL, FAL, or

CLRA. Id.; see also Hairston, 2012 U.S. Dist. LEXIS 74279, at *13 (holding that a

plaintiff’s “selective interpretation of individual words or phrases from a product’s

labeling cannot support a CLRA, FAL, or UCL claim.”).

Here, a reasonable consumer would not interpret the statement “NO MSG

ADDED” to mean “NO MSG” or “NO MSG WHATSOEVER.” This is precisely

the type of strained and selective reading that “stretche[d] the bounds of credulity”

in Ang, 2013 WL 6492353, at *4. Instead, the Annie Chun’s labels simply inform


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consumers, particularly those who may be sensitive to MSG or who may wish to

avoid products with added MSG, that the level of MSG in the products (if any) has

not been artificially increased, that is, no MSG was added to the product. And that

is just what the label says.

All of plaintiff’s UCL, FAL, and CLRA claims should be dismissed on the

ground that no reasonable consumer could be deceived by the “NO MSG ADDED”

claims at issue in the Complaint.

E. Plaintiff Fails to State a Claim for Breach of Express Warranty. In addition to claims brought under the UCL, FAL, and CLRA, plaintiff

asserts a cause of action for breach of express warranty. (Compl. ¶¶ 61-67.)

Plaintiff claims that CJ expressly warranted that the accused Annie Chun’s products

“did not contain MSG.” (Id. ¶ 62.) But his Complaint alleges, at most, that CJ

advertised the Annie Chun’s products as having “NO MSG ADDED”—not that

they contain “NO MSG.” (Id.) Plaintiff’s allegations are therefore insufficient to

support his claim for breach of express warranty.

In order to establish a claim for breach of express warranty under California

Commercial Code section 2313, a plaintiff must show that a defendant: (1) made an

express affirmation of fact or promise; (2) that formed the basis of the bargain

between the parties; and (3) that the warranty was breached. Keith v. Buchanan,

173 Cal. App. 3d 13, 20 (1985). A court must look to the precise representations

made on a product label to determine whether an “express affirmation of fact or

promise” was made on that label, as an affirmation of fact or promise cannot be

established by a plaintiff’s selective reading. See, e.g., McKinniss v. Gen. Mills,

Inc., 2007 U.S. Dist. LEXIS 96107, at *18-20 (C.D. Cal. Sept. 18, 2007)

(dismissing express warranty claims where defendant allegedly warranted that

product contained real fruit but did not claim as much on the product’s label);

accord Sugawara, 2009 U.S. Dist. LEXIS 43127, at *11-12; see also Lam v. Gen.

Mills, Inc., 859 F. Supp. 2d 1097, 1106 (N.D. Cal. 2012) (dismissing express


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warranty claims based on alleged warranty that products were “healthful” where

packaging made no such claims).

In McKinniss, plaintiffs alleged they had been led to believe that cereal

products contained real fruit or fruit juices because images of fruit appeared on the

packaging and defendant used the phrase “natural fruit flavors” on the label. 2007

U.S. Dist. LEXIS 96107, at *1-2. Plaintiffs’ claim for breach of express warranty

was dismissed because the defendants had made no express affirmation or promise

that the products contained fruit or fruit juice and, in fact, had disclosed all of the

ingredients in the products on the nutritional panels. Id. at *18-19 (“Plaintiffs’

selective reading or alleged misunderstanding cannot give rise to an express

warranty claim.”). Similarly, in Lam, a putative class representative alleged that

General Mills had expressly warranted that its fruit snacks were healthful. 859 F.

Supp. 2d at 1106. The court dismissed his express warranty claim with prejudice

because the plaintiff failed to point to any affirmative statement made by General

Mills that the fruit snacks were healthful. Id.

Plaintiff’s express warranty claim should be dismissed for the same reason:

CJ is not alleged to have made the affirmation of fact or promise purportedly

underlying plaintiff’s express warranty claim. Specifically, plaintiff does not allege

that CJ made any statement that the accused products contain “NO MSG.”

F. Plaintiff Lacks Article III Standing to Seek Injunctive Relief. Even if the Court were inclined to allow any of plaintiff’s claims to proceed,

it should dismiss or strike plaintiff’s claims for injunctive relief. (Compl. ¶¶ 5, 38,

46, 52, 60; see also id. at p. 24:12-13.) The Complaint seeks injunctive relief in the

form of an order requiring CJ to perform “corrective advertising” (id.), but fails to

allege that plaintiff intends to purchase Annie Chun’s products again in the future.

To the contrary, plaintiff alleges that he never would have bought Annie Chun’s

products had he known that they purportedly contained any MSG. (Id. ¶ 9.) This

allegation forecloses plaintiff’s claims for injunctive relief because, absent a


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showing that he is still interested in purchasing Annie Chun’s products, plaintiff

cannot establish Article III standing to assert such claims. See, e.g., Dabish v.

Infinitelabs, LLC, 2014 U.S. Dist. LEXIS 131124, at *11-14 (S.D. Cal. Sept. 17,

2014) (dismissing UCL, FAL, and CLRA claims where plaintiff failed to show

intention of purchasing accused dietary supplements again in the future).

A plaintiff bears the burden of demonstrating that Article III standing

requirements are met. D’Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031,

1036 (9th Cir. 2008). Additionally, to demonstrate standing for prospective

injunctive relief, a plaintiff must demonstrate that “he has suffered or is threatened

with a concrete and particularized legal harm” coupled with a “sufficient likelihood

that he will again be wronged in a similar way.” Bates v. UPS, 511 F.3d 974, 985

(9th Cir. 2007) (internal quotations omitted). Where a plaintiff has no intention of

purchasing an allegedly misbranded product again in the future, the weight of

authority holds that the plaintiff has no standing to seek prospective injunctive

relief. Davidson v. Kimberly-Clark Corp., 2014 U.S. Dist. LEXIS 176394, at *10-

12 (N.D. Cal. Dec. 19, 2014); Dabish, 2014 U.S. Dist. LEXIS 131124, at *11-14;

see also Bird v. First Alert, Inc., 2014 U.S. Dist. LEXIS 176390, at *11-14 (N.D.

Cal. Dec. 19, 2014) (“A plaintiff who has no intention of purchasing a product in

the future has no standing to seek prospective injunctive relief.”).4 Moreover, a

named plaintiff who lacks standing to seek prospective injunctive relief is not

permitted to pursue prospective injunctive relief on behalf of unnamed class

members. Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1045 (9th Cir. 1999);

Bird, 2014 U.S. Dist. LEXIS 176390, at *13. 4 Some courts have found that plaintiffs may establish Article III standing to assert claims for injunctive relief where it is possible that they may purchase a product again if it is correctly advertised. See, e.g., Ries v. Ariz. Bevs. U.S. LLC, 287 F.R.D. 523, 533-34 (N.D. Cal. 2012). That is not the case here, where plaintiff alleges that he would not have purchased the Udon Soup Bowl because he objected to a characteristic of the product itself—its alleged MSG content—and not just its labeling or advertising. (Compl. ¶ 9.) Therefore, a corrective advertising campaign would have no impact on plaintiff’s future purchasing decisions.


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Plaintiff’s claims for injunctive relief should be dismissed or, in the

alternative, the Court should strike under Rule 12(f) plaintiff’s claims for injunctive

relief. (Compl. ¶¶ 5, 38, 46, 52, 60; see also id. at p. 24:12-13 (prayer for relief).)

G. The Court Should Strike Plaintiff’s Nationwide Class Allegations. Plaintiff’s Complaint is deficient on the additional ground that it

impermissibly seeks to apply California consumer protection laws to the claims of a

putative nationwide class. (Compl. ¶¶ 30-67; p. 24:3-20.) In Mazza v. American

Honda Motor Co., 666 F.3d 581 (9th Cir. 2012), the Ninth Circuit determined that

“each class member’s consumer protection claim should be governed by the

consumer protection laws of the jurisdiction in which the transaction took place,”

which precluded certification of a nationwide class. Id. at 594, 596. In the wake of

Mazza, district courts have granted Rule 12 motions to dismiss or strike nationwide

class actions in cases where putative class representatives have attempted to apply

California laws to purported false advertising injuries occurring in other states. See,

e.g., Frenzel v. Aliphcom, 2014 U.S. Dist. LEXIS 177880, at *12 (N.D. Cal.

Dec. 29, 2014) (dismissing CLRA, UCL, and FAL claims purportedly brought on

behalf of nationwide class); Route, 2013 U.S. Dist. LEXIS 35069, at *22-27

(striking nationwide class allegations under Mazza where it was sufficiently

obvious from the pleadings that such allegations could not be maintained).5

In Frenzel, decided just over a month ago, a plaintiff purchased an allegedly

5 See also Frezza v. Google, Inc., 2013 U.S. Dist. LEXIS 57462, at *15-24 (N.D. Cal. Apr. 22, 2013) (dismissing, under Mazza, UCL claims brought on behalf of North Carolina residents); Rikos v. Procter & Gamble, 2012 U.S. Dist. LEXIS 25104, at *9-22 (S.D. Ohio Feb. 28, 2012) (striking CLRA, UCL, and breach of express warranty claims purportedly brought on behalf of a nationwide class of consumers); Granfield v. Nvidia Corp., 2012 U.S. Dist. LEXIS 98678, at *9-10 (N.D. Cal. July 11, 2012) (dismissing CLRA and UCL claims purportedly brought on behalf of Massachusetts class representative); Waller v. Hewlett-Packard Co., 2012 U.S. Dist. LEXIS 77366, at *2 (S.D. Cal. June 1, 2012) (“[U]nder Mazza v. American Honda Motor Co., non-California residents can’t avail themselves of California’s consumer protection laws.”); Horvath v. LG Elecs. MobileComm U.S.A., Inc., 2012 U.S. Dist. LEXIS 19215, at *5-11 (S.D. Cal. Feb. 13, 2013) (declining to apply California consumer protection laws to nationwide class).


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defective fitness-tracking wristband and attempted to assert UCL, FAL, CLRA, and

breach of express and implied warranty claims on behalf of a nationwide class of

purchasers of the wristband. 2014 U.S. Dist. LEXIS 177880, at *1-7. Addressing a

Rule 12(b)(6) motion to dismiss, the court dismissed the plaintiff’s nationwide class

allegations, finding that they were foreclosed under Mazza. Id. at *20; see also id.

at *12 (“[A]lthough Mazza was decided at class certification, ‘the principle

articulated in Mazza applies generally and is instructive even when addressing a

motion to dismiss.’”). In doing so, it noted that, in factually analogous cases,

Mazza is “not only relevant but controlling,” even at the pleading phase. Id. at *12.

The same result is warranted here. Plaintiff seeks to certify a nationwide

class seeking redress under the UCL, FAL, and CLRA, and for breach of express

warranty under Section 2313 of the California Commercial Code. (Compl. ¶¶ 30-

67.) Because it is clear that plaintiff cannot apply these laws to a nationwide class,

such that a nationwide class cannot be maintained, the Court should strike

plaintiff’s class allegations to the extent that plaintiff purports to apply California

law to nonresident class members who purchased the accused Annie Chun’s

products in other states. (See Compl. ¶¶ 30-38 (class allegations); 39-67 (causes of

action); p. 24:3-20 (prayer for relief).)

Under Mazza, California laws may only be applied to a nationwide class if

the interests of other states are “not found to outweigh California’s interest in

having its law applied.” Mazza, 666 F.3d at 590. A three-step governmental

interest test is employed to determine whether this condition is met. Id. First, the

court determines “whether the relevant law of each of the potentially affected

jurisdictions with regard to the particular issue in question is the same or different.”

Id. Second, if there is a difference, the court examines “each jurisdiction’s interest

in the application of its own law under the circumstances of the particular case to

determine whether a true conflict exists.” Id. Finally, if a true conflict exists, the

court “carefully evaluates and compares the nature and strength of the interest of


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each jurisdiction” and applies the law of the state whose interest would be more

impaired if its laws were not applied. Id.; see also McCann v. Foster Wheeler LLC,

48 Cal. 4th 68, 81-82 (2010) (outlining governmental interest test).

Mazza is dispositive here and compels the conclusion that plaintiff cannot

maintain his putative nationwide class.

1. California’s Consumer Protection Laws Vary From Those of Other States in Several Material Respects.6

State consumer protection laws “vary considerably.” In re Bridgestone

Firestone, Inc., 288 F.3d 1012, 1018 (7th Cir. 2002). These variations affect

outcome-determinative aspects of consumer claims, such as the availability of class

actions, the types of statements that are actionable, the required degree of

culpability or scienter, reliance requirements and standards, privity requirements,

and the remedies available. See, e.g., In re HP Inkjet Printer Litig., 2008 WL

2949265, at *7 (N.D. Cal. July 25, 2008) (certification denied because of “the many

differences among states with respect to, for example, statutes of limitations,

scienter requirements, and calculation of damages”).

For example, while some states’ consumer protection laws make only

“deceptive” conduct actionable, others more broadly proscribe “unfair” or

“unconscionable” behavior.7 States also vary as to what qualifies as an actionable

“consumer” transaction. Many states limit their definition of “consumer” to a

person buying goods or services for personal, family, or household use.8 And, in at

least seven jurisdictions, private claims under the consumer protection statute must

6 The conflicts between the California consumer protection laws governing plaintiff’s claims and corresponding laws from other states are laid out in further detail in the Appendix filed concurrently with this Motion. 7 Compare Ga. Code Ann. § 10-1-372, Kan. Stat. Ann. § 50-626(a), and S.D. Codified Laws § 37-24-6 with Fla. Stat. Ann. § 501.204(1) (listing “unconscionable acts or practices”), Miss. Code Ann. § 75-24-5(1) (“Unfair methods of competition . . . are hereby prohibited”), and S.C. Code Ann. § 39-5-20(a) (same). 8 Ala. Code § 8-19-3(2); Ga. Code Ann. § 10-1-392(a)(10).


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be asserted on an individual basis, which specifically forecloses the use of class

actions by private litigants.9 Thus, while plaintiffs in California may attempt to

assert UCL, FAL, and CLRA claims on a class-wide basis, plaintiffs in other states

would have no authority to assert consumer protection claims on a class-wide basis

and could not be members of plaintiff’s proposed class.

State laws also vary in significant, outcome-determinative ways in terms of

the remedies and damages available to putative class members. If a plaintiff’s

consumer protection claims are filed in Ohio or Colorado, that plaintiff may seek

treble damages on an individual basis but may only recover actual damages in a

putative class action.10 If such claims are filed in New Jersey, a plaintiff may

recover treble damages on a class-wide basis. N.J. Stat. § 56:8-19. In California,

however, a plaintiff asserting UCL claims may not recover damages at all and

would only be entitled to injunctive relief and restitution. Korea Supply Co. v.

Lockheed Martin Corp., 29 Cal. 4th 1134, 1144 (2003).

States also follow different rules on whether false advertising plaintiffs must

prove scienter. While under the UCL and CLRA, a California plaintiff is not

required to prove scienter, claims under the Colorado Consumer Protection Act are

barred unless a putative class member can establish that defendants actually knew

about the products’ defects at issue in a complaint. Compare Mazza, 666 F.3d at

591 (UCL and CLRA do not require proof of scienter) with Bidwell v. German

Motors, Inc., 586 P.2d 1003, 1006 (Colo. App. 1978) (no violation of Colorado law

9 Ala. Code § 8-19-10(f) (“A consumer or other person bringing an action under this chapter may not bring an action on behalf of a class . . . .”); Ga. Code Ann. § 10-1-399(a); La. Rev. Stat. § 51:1409(A); Miss. Code Ann. § 75-24-15(4); Mont. Code Ann. § 30-14-133(1); S.C. Code Ann. § 39-5-140(a); Va. Code § 59.1-204(A-B). 10 Ohio Rev. Code Ann. § 1345.09(b) (limiting class action to actual damages, but individual plaintiffs may collect treble damages); Robinson v. Lynmar Racquet Club, Inc., 851 P.2d 274, 278 (Colo. App. 1993) (holding that under Colo. Rev. Stat. Ann. § 61-1-113 individual actions (but not class actions) may seek treble damages and attorneys’ fees).


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where no showing of a knowingly false representation); see also Utah Code Ann.

§ 13-11-4(2) (“[A] supplier commits a deceptive act or practice if the supplier

knowingly or intentionally . . . .”).

There are also material differences between the elements required to state a

claim for breach of express warranty in California as compared to other states.

Rikos, 2012 U.S. Dist. LEXIS 25104, at *17-19. For instance, some states bar

claims for breach of express warranty in the absence of vertical privity while others

have no such privity requirement.11 California has a privity requirement as a

general rule but provides certain exceptions where a plaintiff’s decision to purchase

a product was made in reliance on the manufacturer’s express warranty. Fieldstone

Co. v. Briggs Plumbing Prods, Inc., 54 Cal. App. 4th 357, 369 n.10 (1997). State

laws also vary on what creates an express warranty. Some states provide that a

warranty cannot be created where the terms of the warranty are “not susceptible of

exact knowledge.”12 Others find a warranty where “the natural tendency of a

statement is to induce a response.”13 Still other jurisdictions, including California,

preclude the existence of a warranty where a statement is an expression of a seller’s

opinion or puffery.14 State warranty laws also vary in whether reliance is a required

showing for breach of express warranty,15 whether notice of a breach must be given

11 Compare Flory v. Silvercrest Indus. Inc., 633 P.2d 383, 387 (Ariz. 1981) (vertical privity requirement); T.W.M. v. Am. Med. Sys., 886 F. Supp. 842, 844 (N.D. Fla. 1995) (same), with Fortune View Condo. Ass’n v. Fortune Star Dev. Co., 151 Wn.2d 534, 541 (Wash. 2004) (no privity requirement); Reichhold Chem., Inc. v. Haas, 1989 Ohio App. LEXIS 4129, at *7 (Ct. App. Nov. 3, 1989) (same). 12 Chase Resorts, Inc. v. Johns-Manville Corp., 476 F. Supp. 633, 638 (E.D. Mo. 1979). 13 See, e.g., Ewers v. Eisenzopf, 276 N.W.2d 802, 805 (Wis. 1979); Jones v. Kellner, 451 N.E.2d 548, 549 (Ohio Ct. App. 1982). 14 See, e.g., Performance Motors, Inc. v. Allen, 186 S.E.2d 161, 166 (N.C. 1972); Johnson v. Mitsubishi Digital Elec. Am., Inc., 578 F. Supp. 2d 1229, 1238-39 (C.D. Cal. 2008) (puffery does not create actionable warranty). 15 Compare Lutz Farms v. Asgrow Seed Co., 948 F.2d 638, 644-45 (10th Cir. 1991) (no reliance requirement for breach of express warranty claims); Daugherty v. Ashe, 413 S.E.2d 336, 338-39 (Va. 1992) (same), with Williams v. Beechnut


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to defendants, and how timely notice must be.16

Accordingly, state laws relating to each of the causes of action that plaintiff

asserts vary in material, outcome-determinative ways.

2. Each State Has An Interest in Applying Its Own Consumer Protection Laws.

In the Complaint, plaintiff purports to assert claims on behalf of each

purchaser of implicated Annie Chun’s products from November 19, 2012 to the

present. (Compl. ¶ 30.) However, in Mazza, the Ninth Circuit recognized that each

state in which a putative class member bought a falsely advertised product has an

interest in having its own consumer protection laws applied. Mazza, 666 F.3d at

591-92; see also Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1187 (9th

Cir. 2001) (every state “has an interest in having its law applied to its resident

claimants”). This includes “an interest in setting the appropriate level of liability

for companies conducting business within its territory.” Mazza, 666 F.3d at 592;

McCann, 48 Cal. 4th at 90.

Allowing each state to apply its own laws assures individuals and

commercial entities operating within its territory that “applicable limitations on

liability set forth in the jurisdiction’s law will be available to those individuals and

business[es] in the event they are faced with litigation in the future.” Id. at 98.

Thus, each state in which consumers purchased the accused Annie Chun’s products

has a “strong interest” in applying its own consumer laws.

Nutrition Corp., 185 Cal. App. 3d 135, 142 (1986) (applying reasonable reliance requirement to breach of express warranty claim). 16 Compare Stearns v. Select Comfort Retail Corp., 763 F. Supp. 2d 1128, 1142-43 (N.D. Cal. 2010) (notice to manufacturer generally required unless product not purchased from manufacturer), with Seaside Resorts, Inc. v. Club Car, Inc., 416 S.E.2d 655, 663 (S.C. Ct. App. 1992) (only notice to immediate seller is required); Wagner Tractor, Inc. v. Shields, 381 F.2d 441, 445 (9th Cir. 1967) (four- to five-month delay in providing notice untimely); Maybank v. S.S. Kresge Co., 273 S.E.2d 681, 685 (N.C. 1981) (three-year delay in notice not untimely).


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3. Where California Laws Materially Conflict With Those of Other States, Any California Interest in Applying Its Laws Should Yield.

The final step in California’s choice-of-law analysis requires a determination

of which state’s interest would be more impaired if its policy were subordinated.

Wash. Mut. Bank, FA v. Superior Court, 24 Cal. 4th 906, 919-20 (2001). Under

California choice-of-law rules, “the place of the wrong” has “the predominant

interest,” and California considers the “place of the wrong” to be the state where the

“last event necessary to make the actor liable occurred.” Mazza, 666 F.3d at 593.

In the consumer fraud context, “the last events necessary for liability as to . . .

foreign class members—communication of the advertisements to the claimants and

their reliance thereon in purchasing vehicles—[take] place in the various foreign

states.” Id. at 594. These foreign states have a strong interest in the application of

their laws to transactions between their citizens and corporations doing business

within their state. Id. Conversely, California’s interest in applying its laws to

residents of foreign states is “attenuated.” Id.; Discover Bank v. Superior Court,

134 Cal. App. 4th 886, 895 (2005) (California has no greater interest in protecting

other states’ consumers than other states have in protecting California’s.”).

State consumer laws often strike different balances between the need to

protect resident consumers and the desire to encourage business and maintain

economic growth. The Ninth Circuit in Mazza therefore recognized that “each

foreign state has an interest in applying its law to transactions within its borders,”

and that “if California law were applied to the entire class, foreign states would be

impaired in their ability to calibrate liability to foster commerce.” 666 F.3d at 593.

For example, at least seven jurisdictions mandate that private consumer protection

claims be asserted on an individual rather than a class-wide basis. See supra note 9.

Allowing plaintiffs to sue on a class-wide basis on behalf of citizens in those

jurisdictions would subvert the interests of states that have decided to limit

consumer protection suits to individual claims. Other states have decided to limit


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the amount and types of damages available in consumer lawsuits—those states’

interests would be impaired if they could not enforce limits for consumers and

transactions within their borders. See In re Grand Theft Auto Video Game

Consumer Litig., 251 F.R.D. 139, 150 (S.D.N.Y. 2008) (“[T]he interests of the state

of purchase would be most impaired if its consumer-fraud laws were not applied.”).

Here, as in Mazza, “each class member’s consumer protection claim should

be governed by the consumer protection laws of the jurisdiction in which the

transaction took place.” Mazza, 666 F.3d at 594. And, because the laws of

multiple jurisdictions apply to any nationwide class, “variances in state law

overwhelm common issues and preclude [a finding of] predominance for a single

nationwide class.” Id. at 596; Frenzel, 2014 U.S. Dist. LEXIS 177880, at *8-20.

The Court should therefore strike plaintiff’s class allegations to the extent

that plaintiff purports to apply California law to nonresident class members who

purchased the accused Annie Chun’s products in other states. (See Compl. ¶¶ 30-38

(class allegations); 39-67 (causes of action); p. 24:3-20 (prayer for relief).)

IV. CONCLUSION CJ respectfully seeks an order dismissing plaintiff’s Complaint and striking:

(1) all claims as to non-purchased products and ingredients contained only in non-

purchased products; (2) all claims for injunctive relief; and (3) plaintiff’s

nationwide class allegations.

Dated: February 11, 2015

O’MELVENY & MYERS LLP

By: /s/ Carlos M. Lazatin Carlos M. Lazatin

Attorneys for Defendant CJ America, Inc.




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CERTIFICATE OF SERVICE I hereby certify that on February 11, 2015, I electronically filed the foregoing

with the clerk of the court using the CM/ECF system which will send notification

of such filing to the e-mail address denoted on the electronic Mail Notice List.

I certify under penalty of perjury under the laws of the United States of

America that the foregoing is true and correct.

Executed on February 11, 2015, at Los Angeles, California.

/s/ Carlos M. Lazatin Carlos M. Lazatin


CARLOS M. LAZATIN (S.B. #229650) O’MELVENY & MYERS LLP...def.’s mem. of p. & a. iso mot. to...

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