Snarr v. Cento Fine Foods Inc.

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 DEREK SNARR, et al., Case No. 19-cv-02627-HSG

8 Plaintiffs, ORDER ON DEFENDANT'S MOTION

TO DISMISS

9 v.

Re: Dkt. No. 40

10 CENTO FINE FOODS INC.,

11 Defendant.

12 Pending before the Court is Defendant’s motion to dismiss Plaintiffs’ Amended

13 Complaint, for which briefing is complete. Dkt. No. 40 (“Mot.”), 45 (“Opp.”), 51 (“Reply”). For

14 the reasons articulated below, the Court DENIES Defendant’s motion to dismiss.

15 I. BACKGROUND

16 On July 22, 2019, Lead Plaintiffs Derek Snarr, J. Michael Duca, and Candace Goulette

17 filed an amended class action complaint on behalf of a putative California and nationwide class,

18 alleging violations of California’s Unfair Competition Law (“UCL”), Consumers Legal Remedies

19 Act (“CLRA”), and False Advertising Law (“FAL”), as well as two common law claims. Dkt. No.

20 39 (“FAC”). Plaintiffs’ claims are based on Defendant Cento Fine Foods, Inc.’s packaging and

21 labeling representations regarding its “Certified San Marzano” tomato products (the “Products”).

22 Id. ¶ 1.

23 According to Plaintiffs, “[t]he term ‘San Marzano’ refers to canned tomatoes unique to a

24 specific region of Italy which have been grown, harvested, and processed according to specific

25 guidelines.” Id. ¶ 20. The tomatoes must be grown specifically in the “Agro Sarnese-Nocerino”

26 region of Campania, Italy and “must have a Denominazione di Origine Protetta (“D.O.P.”)

27 marking” from the Consortium, which is “the only entity which can certify and approve a San

1 Lead Plaintiffs each allege that they purchased at least one Cento “Certified San Marzano”

2 Product from a grocery store in 2019, relying on the “Certified” marking on Defendant’s label.

3 See id. ¶¶ 75–76, 79, 81, 86, 88. Because Defendant’s Products do not have a D.O.P. marking nor

4 meet other criteria of “true San Marzano tomatoes,” Plaintiffs allege that “Defendant’s Products

5 are not ‘San Marzano tomatoes,” “despite the Product packaging, which indicates to reasonable

6 consumers that the tomatoes contained in Defendant’s Products are authentic San Marzano

7 tomatoes.” Id. ¶ 54. Specifically, Plaintiffs allege that “Defendant attempts to confuse consumers

8 by stating that its tomatoes are grown in the Campania region of Italy” and by stating “that its

9 production facility is located in the Sarnese-Nocerino region,” because it is specifically the Agro

10 Sarnese-Nocerino region where true San Marzano tomatoes must be grown. Id. ¶¶ 48–49.

11 Additionally, Defendant’s use of the word “Certified” on the label “does not disclose that the

12 [Product] is not, in fact, a certified D.O.P. ‘San Marzano’ tomato.” Id. ¶ 63.

13 Based on these facts, Plaintiffs assert the following five causes of action against

14 Defendant: (1) California Business and Professional Code section 17200 (UCL); (2) California

15 Civil Code section 1750 (CLRA); (3) California Business and Professional Code section 17500

16 (FAL); (4) unjust enrichment; and (5) breach of express warranty. Id. ¶ 18–23.

17 II. REQUEST FOR JUDICIAL NOTICE

18 Before turning to the substance of the motion, the Court considers Defendant’s request that

19 the Court take judicial notice of seven documents under the doctrine of incorporation by reference.

20 Dkt. No. 41. “[A] defendant may seek to incorporate a document into the complaint ‘if the

21 plaintiff refers extensively to the document or the document forms the basis of the plaintiff’s

22 claim.’” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018) (quoting United

23 States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003)).

24 Defendant first requests judicial notice of statements contained on the Frequently Asked

25 Questions (“FAQ”) page of its website. See Dkt. No. 40 at 5 n.1. Plaintiff does not oppose

26 Defendant’s request and, in fact, expressly provides the link to the page in the FAC. FAC ¶ 61

27 n.3. Accordingly, the Court GRANTS Defendant’s request to take notice of the FAQ page.

1 Act Notice and Demand,” dated May 15, 2019. Dkt. No. 40-4. Plaintiffs again do not oppose

2 notice of the letter, and instead note that it “is explicitly referenced in the [FAC] and is directly

3 relevant to Plaintiffs’ claims under the CLRA.” Dkt. No. 46 at 2 n.1. The Court agrees and

4 GRANTS Defendant’s request to take judicial notice of the letter.

5 Defendant also seeks notice of the product label “utilized at all times relevant to this

6 lawsuit” of Cento San Marzano Certified Peeled Tomatoes. Dkt. No. 40-3 (“Ciccotelli Ex. B.”).

7 Plaintiffs oppose Defendant’s request arguing that the label differs from the one included in the

8 FAC. Because the Court must draw all inferences in Plaintiffs’ favor at this stage, the Court

9 DENIES Defendant’s request to take notice of Ciccotelli Ex. B.

10 Defendant next requests judicial notice of its trademark for the “San Marzano” design,

11 Dkt. No. 40-6, and the abandoned “Pomodoro San Marzano Dell’Agro Sarnese-Nocerino”

12 trademark application. Dkt. No. 40-7. Neither document is specifically noted in the FAC nor

13 relevant to the Court’s analysis. Therefore, Defendant’s request as to those exhibits is DENIED

14 AS MOOT. Similarly, Defendant’s Agri-Cert certification in Italian and English, Dkt. Nos. 40-2,

15 40-8, is not relevant to the Court’s analysis and notice as to both exhibits is DENIED AS MOOT.

16 III. LEGAL STANDARD

17 Federal Rule of Civil Procedure (“Rule”) 8(a) requires that a complaint contain “a short

18 and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

19 8(a)(2). A defendant may move to dismiss a complaint for failing to state a claim upon which

20 relief can be granted under Rule 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only

21 where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable

22 legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To

23 survive a Rule 12(b)(6) motion, a plaintiff must plead “enough facts to state a claim to relief that is

24 plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially

25 plausible when a plaintiff pleads “factual content that allows the court to draw the reasonable

26 inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,

27 678 (2009).

1 R. Civ. P. 9(b) (“In alleging fraud or mistake, a party must state with particularity the

2 circumstances constituting fraud or mistake.”). A plaintiff must identify “the who, what, when,

3 where, and how” of the alleged conduct, so as to provide defendants with sufficient information to

4 defend against the charge. Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997).

5 In reviewing the plausibility of a complaint, courts “accept factual allegations in the

6 complaint as true and construe the pleadings in the light most favorable to the nonmoving party.”

7 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nonetheless,

8 courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of

9 fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir.

10 2008) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). The Court

11 also need not accept as true allegations that contradict matter properly subject to judicial notice or

12 allegations contradicting the exhibits attached to the complaint. Sprewell, 266 F.3d at 988.

13 If the court concludes that a 12(b)(6) motion should be granted, the “court should grant

14 leave to amend even if no request to amend the pleading was made, unless it determines that the

15 pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d

16 1122, 1127 (9th Cir. 2000) (en banc) (internal citations and quotation marks omitted).

17 IV. DISCUSSION

18 Defendant moves to dismiss under Rule 12(b)(1), 12(b)(2) and 12(b)(6). Defendant argues

19 that Plaintiffs fail to plausibly state a claim under the UCL, failed to provide notice under the

20 CLRA, lack standing to seek injunctive relief, and fail to state claims for unjust enrichment and

21 breach of warranty. Defendant additionally argues that the Court lacks personal jurisdiction over

22 it as to the nationwide class. See generally Mot. The Court addresses each argument in turn.

23 A. UCL, FAL, CLRA

24 The UCL prohibits unfair competition, broadly defined as including “any unlawful, unfair

25 or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.”

26 Cal. Bus. & Prof. Code § 17200. Each prong of the UCL is a separate and distinct theory of

27 liability, and here, Plaintiffs argue that they have stated a valid claim under the fraudulent prong of

1 UCL, Plaintiff[s] must allege that the packaging for Defendant’s products is “likely to deceive” a

2 “reasonable consumer.” Hadley v. Kellogg Sales Co., 243 F. Supp. 3d 1074, 1092 (N.D. Cal.

3 2017) (quoting Williams v. Gerber Prod. Co., 552 F.3d 934, 938 (9th Cir. 2008)). “[T]hese laws

4 prohibit ‘not only advertising which is false, but also advertising which[,] although true, is either

5 actually misleading or which has a capacity, likelihood or tendency to deceive or confuse the

6 public.’” Kasky v. Nike, Inc., 45 P.3d 243, 250 (Cal. 2002) (quoting Leoni v. State Bar, 704 P.2d

7 183, 194 (Cal. 1985)). To bring such a claim, a plaintiff must demonstrate that she “suffered

8 injury in fact and . . . lost money or property as a result of the unfair competition.” Cal. Bus. &

9 Prof. Code § 17204. In other words, Plaintiff must rely on the challenged misrepresentations. See

10 Wilson v. Frito-Lay N. Am., Inc., 260 F. Supp. 3d 1202, 1208 (N.D. Cal. 2017).

11 Whether the challenged representations are “deceptive will usually be a question of fact

12 not appropriate for decision” at the motion to dismiss stage. Gerber, 552 F.3d at 938. However,

13 dismissal is appropriate where “the advertisement itself ma[kes] it impossible for the plaintiff to

14 prove that a reasonable consumer [is] likely to be deceived.” Id. at 939. Courts in this circuit have

15 granted motions to dismiss after finding that the challenged advertisements include qualifying

16 language which make the meaning of the representation clear. See, e.g., Freeman v. Time, Inc., 68

17 F.3d 285, 289 (9th Cir. 1995) (affirming district court’s dismissal of California consumer claim

18 when “[n]one of the qualifying language is hidden or unreadably small” and appears “immediately

19 next to the representations it qualifies”); Sponchiado v. Apple Inc., No. 18-CV-07533-HSG, 2019

20 WL 6117482, at *4 (N.D. Cal. Nov. 18, 2019) (finding “a reasonable consumer could not be

21 deceived by the iPhone Products’ screen size representation, given the qualifying language

22 expressly notifying the consumer that the actual screen area is less than indicated.”); Dinan v.

23 Sandisk LLC, No. 18-CV-05420-BLF, 2019 WL 2327923, at *7 (N.D. Cal. May 31, 2019)

24 (reasonable consumer could not be deceived regarding the number of bytes in the storage device,

25 given that the packaging disclosed exactly how many bytes consumer would receive); Bobo v.

26 Optimum Nutrition, Inc., No. 14-CV-2408 BEN (KSC), 2015 WL 13102417, at *5 (S.D. Cal.

27 Sept. 11, 2015) (dismissing claims when language elsewhere on packaging clarified that “100%

1 cannot look at only one statement to the exclusion of everything else and claim he has been

2 misled”).

3 Defendant first argues that Plaintiffs fail to state a claim based on the Products’ growing

4 region. Mot. at 10–11. Specifically, Plaintiffs fail to “allege reliance on any label statement

5 concerning where the Products are grown” and fail to allege with particularity that the Products

6 were not grown in the Agro Sarnese-Nocerino area. Id. While Defendant is technically correct

7 that Plaintiffs do not directly allege that they relied on representations about the region in which

8 the tomatoes were produced, each Lead Plaintiff alleges that he or she relied on the “Certified”

9 marking. FAC ¶¶ 76, 81, 89. The FAC further provides that “[t]he Consortium is the only entity

10 which can certify and approve a San Marzano tomato,” and “[a]uthentic San Marzano tomatoes

11 must have a [D.O.P.] marking, certifying that the tomato was grown in the correct region and

12 according to the correct specifications.” Id. ¶¶ 24, 26. Reading these allegations in the light most

13 favorable to the Plaintiffs, they sufficiently allege that they relied on the “Certified” marking,

14 which incorporates or stands as a proxy for the geographic region where these tomatoes were

15 grown. Similarly, Plaintiffs’ underlying allegation is that the Products’ label and packaging

16 misleads consumers into believing that they are authentic San Marzano tomatoes by referring to

17 geographic regions related to the “official” growing region of San Marzano tomatoes–the Agro

18 Sarnese-Nocerino region. Plaintiffs need not specifically allege that the Products were not grown

19 in this region, because they rely on Defendant’s representation that the Products are grown in the

20 Campania region of Italy and canned in the Sarnese-Nocerino region, thereby implying that the

21 tomatoes are not grown specifically within this smaller region or, at best, leaving their growing

22 region ambiguous. Id. ¶¶ 48–49. Plaintiffs allege that these representations, even if true, still have

23 the likelihood or tendency to deceive or confuse the public into believing that the tomatoes are

24 grown in the Agro Sarnese-Nocerino region. Id. The Court finds these allegations adequately

25 plead a UCL claim under the fraudulent prong.1

26

1 While Defendant argues that Plaintiffs have not alleged with particularity where or when

27

Plaintiffs purchased the products, Mot. at 11, the Court finds that it is enough that Plaintiffs have

1 Defendant next argues that Plaintiffs fail to state a claim based on the Products’

2 certification. Mot. at 11–14. Primarily, Defendant argues that Plaintiffs fail to “allege [any] facts

3 that plausibly support [the] conclusory assertion” that all San Marzano tomato products must bear

4 the Consortium’s D.O.P. marking. Mot. at 11–12. Second, Defendant argues that Plaintiffs fail to

5 allege how they were misled by the “Certified” label claim given that Defendant “expressly states

6 the name of its San Marzano certifier on its website, because Defendant does not use the ‘D.O.P.’

7 markings on its label, and because the Products are certified,” by Agri-Cert. Id. at 13 (emphasis in

8 original). The Court finds that Plaintiffs allege sufficient facts to survive the motion to dismiss

9 stage, and further, that the disclosure noted on Defendant’s website does not preclude Plaintiffs’

10 claims of deception.

11 Plaintiffs allege that “[t]he Consortium is the only entity which can certify and approve a

12 San Marzano tomato,” and “[a]uthentic San Marzano tomatoes must have a [Consortium D.O.P.]

13 marking, certifying that the tomato was grown in the correct region and according to the correct

14 specifications.” FAC ¶¶ 24, 26. To support these allegations, Plaintiffs include that “[t]he

15 Consortium was granted the right to certify and approve San Marzano tomatoes by the European

16 Union [“EU”] in 1996.” Id. ¶ 25. Whether Plaintiffs can prove these facts though documentation

17 of EU approval, an expert supporting these allegations, and/or laws or regulations of the EU, Italy,

18 or the United States specifying this certification process is an issue properly addressed at the

19 dispositive motion stage. At this stage, the Court must accept as true all factual allegations in the

20 Complaint, and the Court finds that Plaintiffs have sufficiently met the requirements of Rule 9(b).

21 Finally, while Defendant argues that qualifying language on its website makes the

22 “Certified” representation clear, this disclosure is not included on the packaging itself. Instead,

23 the packaging states, “These San Marzano tomatoes are certified [by an] independent third-party

24 agency and are produced with the proper method to ensure superior growth.” Id. ¶ 52. This

25

26

defendant can prepare an adequate answer from the allegations.” Moore v. Kayport Package

Express, Inc., 885 F.2d 531, 540 (9th Cir. 1989). Plaintiffs provide a label of the Products and

27

specifically allege that each Lead Plaintiff purchased the Products from a few grocery stores,

1 language does not clearly disclose that the independent third-party agency is not the Consortium,

2 and instead relies on consumers subsequently visiting its website to find such detail. These facts

3 sufficiently distinguish this case from those granting a motion to dismiss due to qualifying

4 language on the package itself which make the meaning of the representation clear.

5 Accordingly, the Court DENIES Defendant’s motion to dismiss the UCL, FAL, and

6 CLRA claims based on a failure to plead sufficient facts regarding the Products’ growing region or

7 certification.2

8 B. Notice under the CLRA

9 Defendant argues that Plaintiffs’ CLRA claim should be dismissed because Plaintiffs’

10 demand letter failed to provide sufficient notice of the alleged defects. Mot. At 18–19. Plaintiffs

11 sent a demand letter on May 15, 2019, stating:

12 Specifically, Plaintiffs hereby notify Cento that it has engaged in

ongoing unlawful, fraudulent, and unfair business acts and practices

13 in connection with the sales and marketing of its Cento Certified San

Marzano Tomatoes (the “Products”) in the State of California. In its

14 pricing, marketing, and advertising of the Products, Cento represents

that Products are authentic San Marzano tomatoes knowing that

15 reasonable consumers will rely on these representations and pay extra

for the Products or purchase them instead of other tomatoes.

16

17 Dkt. No. 40-4 at 2. Plaintiffs filed the instant action on May 14, 2019, and initially sought only

18 injunctive relief on the CLRA cause of action. See Dkt. No. 1 at 15. In their original complaint,

19 Plaintiffs noted that “[i]f Defendant fail[ed] to respond to Plaintiffs’ letter or agree to rectify the

20

21

2 The Court further rejects Defendant’s argument that Plaintiffs may not seek equitable remedies

given that they have alleged claims for damages under the CLRA and for breach of warranty.

22

Mot. at 22. The UCL specifically provides that “[u]nless otherwise expressly provided, the

remedies or penalties provided by this chapter are cumulative to each other and to the remedies

23

available under all other laws of this state.” Cal. Bus. & Prof. Code § 17205. Similarly, the

CLRA provides that “[t]he provisions are this title are not exclusive. The remedies provided herein

24

for violation f any section of this title . . . shall be in addition to any other procedures or remedies

for any violation or conduct provided for in any other law. Cal. Civ. Code § 1752; see also

25

Madani v. Volkswagen Grp. of Am., Inc., No. 17-CV-07287-HSG, 2019 WL 3753433, at *9 (N.D.

Cal. Aug. 8, 2019) (“[A]at the pleading stage, theories of equitable remedies are not barred by a

26

plaintiff adequately pleading theories supporting monetary relief.”); Luong v. Subaru of Am., Inc.,

No. 17-CV-03160-YGR, 2018 WL 2047646, at *7 (N.D. Cal. May 2, 2018) (“The availability of

27

monetary damages does not preclude a claim for equitable relief under the UCL and CLRA based

1 problems associated with the actions described above and give notice to all affected consumers

2 within 30 days of the date of written notice, then Plaintiffs [would] move to amend their

3 Complaint to pursue claims for actual, punitive, and statutory damages, as appropriate against

4 Defendant.” Id. The Plaintiffs did so in the FAC. See FAC ¶ 134.

5 The CLRA requires that a consumer provide notice of the “committed methods, acts, or

6 practices declared unlawful by Section 1770” at least thirty days prior to commencing an action

7 for damages. Cal. Civ. Code § 1782. The notice “requirement exists in order to allow a defendant

8 to avoid liability for damages if the defendant corrects the alleged wrongs within 30 days after

9 notice, or indicates within that 30–day period that it will correct those wrongs within a reasonable

10 time.” Morgan v. AT&T Wireless Servs., Inc., 177 Cal. App. 4th 1235, 1261, 99 Cal. Rptr. 3d 768,

11 789 (2009). Plaintiffs argue that the letter made clear that Defendant’s representations regarding

12 the San Marzano certification were at issue. Opp. at 19–20. The Court agrees. Not only did the

13 letter provide notice that the Certified San Marzano Tomatoes were at issue, they specifically

14 noted that Defendants’ representations of authenticity were at issue. Additionally, Plaintiffs filed

15 their initial complaint prior to providing the letter seeking only injunctive relief (which did not run

16 afoul of the provision). See Dkt. No. 1. The initial complaint provided further detail regarding

17 Plaintiffs’ allegations that the Products’ labeling misled reasonable consumers to believe the

18 Products are authentic San Marzano tomatoes even though they were not grown in the specified

19 region and did not have the appropriate certification. Id. Thus, Plaintiffs sufficiently provided at

20 least thirty days of notice prior to amending their complaint to include an action for damages, and

21 the Court DENIES Defendant’s motion to dismiss CLRA claims due to insufficiency of notice.

22 C. Standing for Injunctive Relief

23 In addition to other forms of relief, Plaintiffs seek injunctive relief under the CLRA, UCL

24 and FAL. FAC ¶¶ 118, 131, 144. Defendant argues that Plaintiffs fail to allege facts sufficient to

25 confer Article III standing for injunctive relief. Mot. at 14–16. Article III of the Constitution

26 limits the jurisdiction of the federal courts to actual “cases” and “controversies.” U.S. Const., Art.

27 III, § 2. One element of this case-or-controversy requirement is that the plaintiff must have

1 2016). To establish Article III standing, a plaintiff must show: (1) she “suffered an injury in fact”;

2 (2) “that is fairly traceable to the challenged conduct of the defendant”; and (3) “that is likely to be

3 redressed by a favorable judicial decision.” Id. at 1547 (citations omitted). In a false advertising

4 suit, “a previously deceived consumer may have standing to seek an injunction against false

5 advertising or labeling, even though the consumer now knows or suspects that the advertising was

6 false at the time of the original purchase, because the consumer may suffer an ‘actual and

7 imminent, not conjectural or hypothetical’ threat of future harm.” Davidson v. Kimberly-Clark

8 Corp., 889 F.3d 956, 969 (9th Cir. 2018) (quoting Summers v. Earth Island Inst., 555 U.S. 488,

9 493 (2009)). Such “threat of future harm may be the consumer’s plausible allegations that she will

10 be unable to rely on the product’s advertising or labeling in the future, and so will not purchase the

11 product although she would like to,” or “the consumer’s plausible allegations that she might

12 purchase the product in the future, despite the fact it was once marred by false advertising or

13 labeling, as she may reasonably, but incorrectly, assume the product was improved.” Id. at 969–

14 70.

15 Plaintiffs allege that they relied on the “Certified” representations on the Products’ labels

16 and “[h]ad the tomatoes not displayed the ‘Certified’ marking, [Plaintiffs] either would not have

17 purchased the tomatoes or would not have been willing to pay a premium for the tomatoes.” FAC

18 ¶¶ 76–77, 81–83, 89–90. Plaintiffs additionally allege that “if [he or she] could rely upon the

19 truthfulness of Defendant’s labeling, [he or she] would continue to purchase the Products in the

20 future.” Id. ¶¶ 77, 84, 90. The Court finds that these allegations meet the requirements of

21 Davidson. Plaintiffs establish threat of future harm by alleging that they would purchase the

22 Products in the future only if they could rely on Defendant’s labeling, whether the “Certified”

23 mark was substantiated as D.O.P. certification or if it was removed. This sufficiently alleges the

24 first example of future harm noted in Davidson—Plaintiffs will not purchase the Products until

25 they can rely on the Products’ representations. 3 Thus, the Court holds that Plaintiffs have

26

3 Defendant cites Broomfield v. Craft Brew All., Inc. to argue that Plaintiffs do not allege future

27

harm under Davidson. No. 17-CV-01027-BLF, 2017 WL 3838453, at *11 (N.D. Cal. Sept. 1,

1 standing to seek injunctive relief and DENIES Defendant’s motion to dismiss the claims for such

2 relief.

3 D. Personal Jurisdiction

4 A defendant may seek dismissal of an action for lack of personal jurisdiction under Federal

5 Rule of Civil Procedure 12(b)(2). In order for a nonresident defendant to be subject to the

6 personal jurisdiction of a court, “(1) the defendant must either purposefully direct his activities

7 toward the forum or purposefully avail himself of the privileges of conducting activities in the

8 forum; (2) the claim must be one which arises out of or relates to the defendant's forum-related

9 activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice,

10 i.e. it must be reasonable.” Axiom Foods, Inc. v. Acerchem Int’l, Inc., 874 F.3d 1064, 1068 (9th

11 Cir. 2017) (internal quotation marks omitted). Relying on Bristol-Myers Squibb Co. v. Superior

12 Court, 137 S. Ct. 1773 (2017), Defendant argues this Court cannot establish personal jurisdiction

13 over it with regard to a possible nationwide class whose members are not residents of California.

14 Mot. at 16–18.

15 The Court finds Defendant’s reliance on Bristol-Myers misplaced. The Supreme Court did

16 not “confront the question [of] whether its opinion . . . would also apply to a class action in which

17 a plaintiff injured in the forum State seeks to represent a nationwide class of plaintiffs, not all of

18 whom were injured there.” Bristol-Myers, 137 S. Ct. 1773 at 1789 (Sotomayor, J., dissenting). In

19 fact, courts addressing this precise argument have found that Bristol-Myers does not extend to

20 absent class members. See Santos v. CarMax Bus. Servs., LLC, No. 17-CV-02447-RS, 2018 WL

21 7916823, at *5 (N.D. Cal. May 8, 2018) (“[I]n the absence of further guidance from the higher

22 courts on this question, Bristol-Myers will not be construed to bar this Court’s jurisdiction over

23 [defendant] with respect to the non-California putative nationwide class members.”); Fitzhenry-

24 Russell v. Dr. Pepper Snapple Grp., Inc., No. 17-CV-00564 NC, 2017 WL 4224723, at *5 (N.D.

25

brewed in Hawaii, when it was actually brewed in the continental United States. Id. Those

26

plaintiffs, however, only alleged that they would purchase the products, if defendants in fact

brewed the beer in Hawaii. Id. The Broomfield court noted that it “cannot issue a mandatory

27

injunction forcing [defendant] to alter its production process.” Id. Here, Plaintiffs allege that they

1 Cal. Sept. 22, 2017) (finding “Bristol-Myers [] meaningfully distinguishable based on that case

2 concerning a mass tort action, in which each plaintiff was a named plaintiff” and ultimately

3 refusing “to extend Bristol-Myers to the class action context. . . .”).

4 Defendant’s cited cases do little to support its argument. Both cases concerned a named

5 plaintiff seeking to represent a nationwide class under non-forum law. See Morrison v. Ross

6 Stores, Inc., No. 18-CV-02671-YGR, 2018 WL 5982006, at *4 (N.D. Cal. Nov. 14, 2018)

7 (dismissing an action where named Missouri plaintiff sought to represent a nationwide class in

8 California under California law); In re Samsung Galaxy Smartphone Mktg. & Sales Practices

9 Litig., No. 16-CV-06391-BLF, 2018 WL 1576457, at *2 (N.D. Cal. Mar. 30, 2018) (dismissing a

10 Maryland plaintiff seeking to represent a nationwide class under California’s long-arm statute).4

11 Accordingly, the Court DENIES Defendant’s motion to dismiss for lack of personal jurisdiction.

12 E. Unjust Enrichment

13 Defendant next argues that Plaintiffs fail to state an independent cause of action for unjust

14 enrichment. Mot. at 19–20. The Ninth Circuit “has construed the common law to allow an unjust

15 enrichment cause of action through quasi-contract,” ESG Capital Partners, LP v. Stratos, 828 F.3d

16 1023, 1038 (9th Cir. 2016); see also Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 762 (9th

17 Cir. 2015) (“When a plaintiff alleges unjust enrichment, a court may construe the cause of action

18 as a quasi-contract claim seeking restitution.” (internal quotations and citations omitted)). “To

19 allege unjust enrichment as an independent cause of action, a plaintiff must show that the

20 defendant received and unjustly retained a benefit at the plaintiff’s expense.” ESG Capital

21 Partners, 828 F.3d at 1038. Restitution is not ordinarily available to a plaintiff unless “the

22 benefits were conferred by mistake, fraud, coercion or request; otherwise, though there is

23 enrichment, it is not unjust.” Nibbi Bros., Inc. v. Home Federal Sav. & Loan Assn., 253 Cal. Rptr.

24

25

4 Defendant also cited supplemental authority for this argument. Dkt. No. 55 (citing Jackson v.

Gen. Mills, Inc., No. 18-CV-2634-LAB (BGS), 2019 WL 4599845, at *3 (S.D. Cal. Sept. 23,

26

2019)). The Court respectfully disagrees with the reasoning of Jackson. The Jackson court relied

on Mazza v. Am. Honda Motor Co., 666 F.3d 581 (9th Cir. 2012), to vacate a class certification

27

order that applied California’s consumer protection laws to a nationwide class. While Mazza’s

1 289, 293 (Cal. Ct. App. 1988) (internal quotations and citations omitted). Here, Plaintiffs’ basis

2 for their unjust enrichment claim sounds in fraud, just as with their other claims, and is thus

3 subject to Rule 9(b)’s pleading requirements. See In re Actimmune Mktg. Litig., No. C 08-02376

4 MHP, 2009 WL 3740648, at *16 (N.D. Cal. Nov. 6, 2009), aff’d, 464 F. App’x 651 (9th Cir.

5 2011).

6 Plaintiffs allege that they are entitled to relief under a quasi-contract cause of action

7 because Defendant “accepted or retained non-gratuitous benefits conferred by Plaintiffs . . . with

8 full knowledge and awareness that, as a result of Defendant’s deception, Plaintiffs . . . were not

9 receiving a product of the quality nature, fitness or value that had been represented by Defendant

10 and reasonable consumers would have expected.” FAC ¶ 147. The Court finds Plaintiffs’ unjust

11 enrichment statement sufficient to state a quasi-contract cause of action. As noted above,

12 Plaintiffs’ allegations sufficiently state a claim under the fraudulent prong of the UCL, meeting

13 Rule 9(b)’s pleading requirements. For the same reasons, the Court similarly DENIES

14 Defendant’s motion to dismiss the unjust enrichment cause of action.

15 F. Breach of Express Warranty

16 Defendant argues that “because the Amended Complaint does not identify which state’s

17 law applies to [Plaintiffs’ breach of express warranty] claim,” it should be dismissed. Mot. at 20.

18 Defendant correctly notes that for this claim, Plaintiffs list over forty different state statutes. FAC

19 ¶ 154. Plaintiffs argue that addressing choice of law at this stage is premature and that this issue

20 should instead be considered at class certification. Opp. at 17–18. However, none of the cases

21 upon which Plaintiffs rely consider whether a plaintiff must identify the state law of a common

22 law claim in its pleadings, but instead consider whether a motion to strike class claims under

23 Federal Rule of Civil Procedure 12(f) is appropriate prior to class certification, see CarMax 2018

24 WL 7916823, at *4, or whether a choice of law analysis is appropriate prior to class certification,

25 see Zapata Fonseca v. Goya Foods Inc., No. 16-CV-02559-LHK, 2016 WL 4698942, at *3 (N.D.

26 Cal. Sept. 8, 2016). Plaintiffs also cite cases where courts resolved choice of law issues at the

27 class certification stage, but those cases again are inapposite to the question presented here. See

1 (E.D. Cal. Mar. 29, 2019); Hart v. BHH, LLC, No. 15CV4804, 2017 WL 2912519, at *1

2 (S.D.N.Y. July 7, 2017) (certifying a multi-state breach of express warranty class under California

3 law).

4 Instead, the Court must determine whether Plaintiffs have sufficiently alleged a breach of

5 warranty claim. Notably, while the Ninth Circuit has yet to weigh in, the majority of courts in this

6 district have held that in a putative class action, claims arising under the laws of states in which no

7 named plaintiff resides should be dismissed for lack of standing at the motion to dismiss stage.

8 See Hindsman v. Gen. Motors LLC, No. 17-CV-05337-JSC, 2018 WL 2463113, at *15 (N.D. Cal.

9 June 1, 2018); Johnson v. Nissan N. Am., Inc., 272 F. Supp. 3d 1168, 1175 (N.D. Cal. 2017);

10 Corcoran v. CVS Health Corp., Inc., No. 15-CV-3504 YGR, 2016 WL 4080124, at *2 (N.D. Cal.

11 July 29, 2016); In re Carrier IQ, Inc., 78 F. Supp. 3d 1051, 1069 (N.D. Cal. 2015). Here, all Lead

12 Plaintiffs reside in California and purchased the Products in California. Accordingly, the Court

13 DISMISSES the claims purportedly brought under the laws of jurisdictions other than California.

14 Defendant further argues that under California law, Plaintiffs’ breach of warranty claim

15 should be dismissed for failure to provide pre-suit notice and failure to sufficiently state a claim.

16 Mot. at 21–22. “A plaintiff asserting a breach of express warranty claim must allege facts

17 sufficient to show that (i) the seller’s statements constitute an affirmation of fact or promise or a

18 description of the goods; (ii) the statement was part of the basis of the bargain; and (iii) the

19 warranty was breached.” Ham v. Hain Celestial Grp., Inc., 70 F. Supp. 3d 1188, 1195 (N.D. Cal.

20 2014) (citing Weinstat v. Dentsply Int’l, Inc., 103 Cal. Rptr.3d 614, 625–26 (Cal. Ct. App. 2010)).

21 While the California Commercial Code section 2607 requires that a buyer give a seller notice of

22 any breach of express warranty, it does not specifically require a buyer to give notice to a

23 manufacturer. See Cal. Com. Code § 2607; see also Rosales v. FitFlop USA, LLC, 882 F. Supp.

24 2d 1168, 1178 (S.D. Cal. 2012) (“[W]hen claims are against a defendant in its capacity as a

25 manufacturer, not as a seller, plaintiff is not required to give notice.”) (citing Greenman v. Yuba

26 Power Prods., 377 P.2d 897, 899 (Cal. 1963)).

27 Here, Plaintiffs allege they purchased the products from third-party sellers and only sue

1 argument to the contrary fails. Plaintiffs also allege that the “Certified” and “San Marzano” marks

2 || on the label constituted an express warranty to provide authentic San Marzano tomatoes certified

3 by D.O.P. Id. 151. Defendant argues that the express warranty is not breached because

4 || Plaintiffs later “admit that the Cento San Marzano Products are ‘certified.’” Mot. at 21 (emphasis

5 in original). However, this is the same argument Defendant raises as to the misrepresentation-

6 || based claims addressed above. The motion to dismiss the breach of express warranty claim under

7 California law is thus DENIED for the same reasons.°

8 Vv. CONLUSION

9 For the reasons noted above, the Court DISMISSES the breach of express warranty claims

10 || brought under the laws of jurisdictions other than California. As for all remaining claims, the

11 Court DENIES Defendant’s motion to dismiss.

12

IT IS SO ORDERED.

v 14 || Dated: 12/23/2019

15 ZA Harpuced 3 Lhe

2 HAYWOOD S. GILLIAM, JR.

a 16 United States District Judge

= 17

Z 18

19

20

21

22

23

24

25

26 > Lastly, while Defendant raises a convoluted statute of limitations argument, the FAC only brings

97 || claims within the three-year statute of limitations for the CLRA and FAL, and the four-year statute

of limitations for the UCL. FAC 4] 74, 79, 86 (all alleging purchases within the year prior to

filing the complaint). Thus, the Court DENIES Defendant’s motion to dismiss any claims falling

28 .

outside of the statute of limitations period, because there are none.