FITZPATRICK v. TYSON FOODS INC (2018)

MEMORANDUM ***

In these consolidated appeals, Susan Fitzpatrick appeals the Rule 12(b)(6) dismissals of her claims for violations of California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq., generally, and specifically California’s Made in USA law, Cal. Bus. & Prof. Code § 17533.7, and California’s Consumer Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1750 et seq.

The district court properly determined that the current version of California Business and Professional Code § 17533.7 governs Fitzpatrick’s claims. Although the statute does not apply retroactively, in amending § 17533.7, the California legislature enacted a change in legislative policy, shifting from strict liability to allow certain previously prohibited conduct under certain exceptions, amounting to a statutory repeal. See Zipperer v. County of Santa Clara, 133 Cal. App. 4th 1013, 1023–24, 35 Cal.Rptr.3d 487 (2005) (holding that “where the Legislature has conferred a remedy and withdraws it by amendment or repeal of the remedial statute, the new statutory scheme may be applied to pending actions without triggering retrospectivity concerns,” with courts to consider, among other factors, “whether the legislation constitutes a substantial reversal of legislative policy that represents the adoption of an entirely new philosophy vis-à-vis the prior enactment” (citations and internal quotation marks omitted) ); Brenton v. Metabolife Int’l, Inc., 116 Cal. App. 4th 679, 690, 10 Cal.Rptr.3d 702 (2004) (statutory repeal rule applied where statute provided certain exceptions to anti-SLAPP rule). Because Fitzpatrick had no vested rights in her claims before the current version of § 17533.7 went into effect, her claims are governed by the current version of that statute.

The district court also properly concluded that the California safe harbor doctrine bars Fitzpatrick’s claims under California’s consumer protection statutes, where the amended version of § 17533.7 expressly makes lawful the labeling of products that contain certain amounts of foreign-sourced ingredients as “Made in the USA.” See Ebner v. Fresh, Inc., 838 F.3d 958, 963 (9th Cir. 2016) (“[T]he safe harbor doctrine ․ precludes plaintiffs from bringing claims based on ‘actions the Legislature permits.’ ”) (quoting Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal.4th 163, 83 Cal.Rptr.2d 548, 973 P.2d 527, 542 (1999) ).

We additionally deny Appellees’ pending motion to strike [27].

AFFIRMED.