OH v. CATALINA SNACKS INC (2025)

Proceedings: ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION TO DISMISS [26]

I. Introduction

Before the Court is Defendant Catalina Snacks’ motion to dismiss the First Amended Complaint filed by Plaintiff Simon Oh. ECF No. 26. For the following reasons, Defendant's motion is DENIED in part and GRANTED in part.

II. Background

Plaintiff's First Amended Complaint makes the following allegations:

Defendant manufactures healthy snack products, including the food product at issue in this case: a cereal under the name “Catalina Crunch” (the “Product”). First Amended Complaint (“FAC”) ¶ 1. In July 2024, Plaintiff purchased a single unit of the Product from Amazon.com, an online retailer. Id. 22.

The Product's packaging provides various pieces of information about the Product. Relevant to this case, the front label of the packaging states that the weight of the Product is 9 ounces. The Product's back label explains that the packaging contains 7 servings of the Product, and that each serving is one half of a cup or 36 grams of Product. Screenshots of both the front and back labeling are reproduced below:

When Plaintiff purchased the Product from Amazon's webpage in July 2024, he relied on the Product's “opaque packaging” and packaging size. Id. ¶ 22. According to Plaintiff, he understood the size of the package and the product label to indicate that the amount of product contained in the packaging was commensurate with the size of the package. Id. But that was not the case. Rather, between 40 and 47% of the Product's packaging was empty. Id. ¶ 3. Plaintiff alleges that he would not have purchased the Product—or would not have paid a price premium for it—had he known that the size of the package and product were not representative of the amount of product inside of it. Id. ¶ 22.

On September 5, 2024, Plaintiff brought common law fraud and California Consumer Legal Remedies Act (“CLRA”) claims against Defendant in Los Angeles Superior Court. ECF No. 1-1. Defendant removed the case to this Court on October 7, 2024. Defendant initially moved to dismiss Plaintiff's claims on November 6, 2024. ECF No. 20. But that motion was mooted by Plaintiff filing an amended complaint on November 27, 2024. ECF No. 24. Defendant again moved to dismiss.¹ ECF No. 26.

III. Legal Standard

A. Rule 12(b)(6)

A motion to dismiss under Rule 12(b)(6) challenges the legal sufficiency of the claims stated in the complaint. See Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, the plaintiff's complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. A complaint that offers mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (citing Iqbal, 556 U.S. at 678).

In reviewing a Rule 12(b)(6) motion, a court “must accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the nonmoving party.” Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014). Thus, “[w]hile legal conclusions can provide the complaint's framework, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.

B. Rule 9(b)

Because Plaintiff's claims sound in fraud, he “must overcome a heightened pleading standard under Rule 9(b).” ESG Cap. Partners, LP v. Stratos, 828 F.3d 1023, 1031 (9th Cir. 2016). Specifically, Rule 9(b) reads as follows: “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.” Fed. R. Civ. P. 9(b). “In cases where fraud is not a necessary element of a claim, a plaintiff may choose nonetheless to allege in the complaint that the defendant has engaged in fraudulent conduct.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103 (9th Cir. 2003). “In some cases, the plaintiff may allege a unified course of fraudulent conduct and rely entirely on that course of conduct as the basis of a claim.” Id. “In that event, the claim is said to be ‘grounded in fraud’ or to ‘sound in fraud,’ and the pleading of that claim as a whole must satisfy the particularity requirement of Rule 9(b).” Id. (citing Anderson v. Clow (In re Stac Elecs. Sec. Litig.), 89 F.3d 1399, 1404-05 (9th Cir. 1996)). “It is well-settled that the Federal Rules of Civil Procedure apply in federal court, ‘irrespective of the source of the subject matter jurisdiction, and irrespective of whether the substantive law at issue is state or federal.’ ” Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009) (quoting Vess, 317 F.3d at 1102).

“To comply with Rule 9(b), allegations of fraud must be ‘specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong.’ ” Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001) (quoting Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir. 1993)). “Averments of fraud must be accompanied by ‘the who, what, when, where, and how’ of the misconduct charged.” Vess, 317 F.3d at 1106. “A party alleging fraud must ‘set forth more than the neutral facts necessary to identify the transaction.’ ” Kearns, 567 F.3d at 1124 (quoting In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1548 (9th Cir. 1994), superceded by statute on other grounds).

“Rule 9(b) serves three purposes: (1) to provide defendants with adequate notice to allow them to defend the charge and deter plaintiffs from the filing of complaints as a pretext for the discovery of unknown wrongs; (2) to protect those whose reputation would be harmed as a result of being subject to fraud charges; and (3) to prohibit plaintiffs from unilaterally imposing upon the court, the parties and society enormous social and economic costs absent some factual basis.” Kearns, 567 F.3d at 1125 (internal quotations and alterations omitted).

IV. Discussion

Plaintiff brings two different causes of action: (1) common law fraud; and (2) violation of the CLRA. To state a claim for common law fraud, Plaintiff must plead: “(1) misrepresentation of a material fact (consisting of false representation, concealment or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to deceive and induce reliance; (4) justifiable reliance on the misrepresentation; and (5) resulting damage.” Bower v. AT&T Mobility, LLC, 196 Cal. App. 4th 1545, 1557 (2011) (quotations omitted).

Turning to the CLRA, that statute “declares unlawful a variety of ‘unfair methods of competition and unfair or deceptive acts or practices’ used in the sale or lease of goods or services to a consumer.” Id. (quoting Cal Civ. Code § 1770). This includes “[r]epresenting that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have.” Cal. Civ. Code § 1770(a)(5) (emphasis added). Like common law fraud, CLRA claims based on alleged misrepresentations also require that the plaintiff establish actual reliance. See Gonzales v. Nat. Factors Nutritional Prods. Inc., No. 2:24-cv-02584-DSF, 2024 WL 4609853, at *6 (C.D. Cal. June 28, 2024) (“California courts have interpreted the ‘as a result of’ language in the CLRA as requiring the plaintiff to plead and prove actual reliance in accordance with well-settled fraud principles.”).

While common law fraud and the CLRA are different causes of action, in this case, they are based on the same central allegation: that the size of the Product's packaging misrepresented the amount of Product contained within it. In its motion to dismiss, Defendant's makes three categories of argument: (1) that Plaintiff's claims fail to satisfy Rule 9(b); (2) that Plaintiff fails to establish a misrepresentation; and (3) that Plaintiff fails to establish actual reliance.

Additionally, Defendant makes two arguments specific to Plaintiff's CLRA claim: first, that Plaintiff's claims fall within the safe harbor provisions outlined in Cal. Bus. & Prof. Code § 12606.2(c); and second, that Plaintiff failed to adequately provide pre-suit notice as required under the CLRA. The Court will address each of these arguments in turn.

A. Rule 9(b)

“To properly plead fraud with particularity under Rule 9(b), ‘a pleading must identify the who, what, when, where, and how of the misconduct charged, as well as what is false or misleading about the purportedly fraudulent statement, and why it is false.” Davidson v. Kimberly-Clark Corp., 889 F.3d 959, 964 (9th Cir. 2018). “For claims based on deceptive product packaging or labeling, many courts in California have applied a relatively straightforward test for the application of Rule 9(b): The ‘who’ is the defendant; the ‘what’ is the allegedly misleading packaging; the ‘when’ is the proposed class period during which time the packaging was deceptive; the ‘where’ is the packaging containing the allegedly misleading statement—or in the case of deceptive packaging, the packaging itself—and the ‘how’ is the plaintiff's explanation for why the packaging is misleading.” Matic v. United States Nutrition, Inc., No. 18-CV-9592-PSG, 2019 WL 3084335, at *7 (C.D. Cal. Mar. 27, 2019) (quotations omitted).

Plaintiff sufficiently pleads the “who, what, when, where, and how” of his claims. The “who” is rather obvious—it is Plaintiff himself. The “what”—i.e., “what” is misleading—is the packaging itself. Plaintiff alleges that the size of packaging misrepresented the amount of product inside of it. This is sufficient to establish the “what” requirement of Rule 9(b). See Matic, 2019 WL 3084335, at *7 (evaluating plaintiff's allegations that the size of a protein powder's packaging misrepresented the amount of product inside and holding that “the ‘what’ [for the purposes of Rule 9(b)] is the protein powder packaging”).

Plaintiff also sufficiently pleads, the when, where, and how. “When” is July 2024, when Plaintiff purchased the product. “Where”—i.e., the location of the misrepresentation—is the packaging itself. And “how”—i.e., “the plaintiff's explanation for why the packaging is misleading,” Matic, 2019 WL 3084335, at *7;—is that Defendant misrepresents the Product's quantity by filling its opaque packaging with 40-47% empty space for no functional purpose. FAC ¶¶ 3, 28-38; see Stewart v. Kodiak Cakes, LLC, 537 F. Supp. 3d 1103, 1133 (“Regarding the nonfunctional slack fill theory, the ‘how’ is that Defendant misrepresents the products’ quantities through filling their opaque product boxes with less than half of the product for no functional pmpose.”).

So in sum, Plaintiff sufficiently satisfies the particularity requirements of Rule 9(b).

B. Misrepresentation

Both Plaintiff's common law fraud and CLRA claims require establishing that the Product's packaging serves as an actionable misrepresentation. Misrepresentation claims under the CLRA are “governed by the ‘reasonable consumer’ test.” Fresh Bellies, Inc., 2024 WL 4500727, at *7 (citing Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008)). Common law fraud claims regarding misleading product packaging employ a similar reasonable consumer standard. See Ham v. Hain Celestial Grp., Inc., 70 F. Supp. 3d 1188, 1193 (N.D. Cal. 2014) (explaining that the “reasonable consumer” standard “also applies to common law fraud”) (citing Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir. 1995)).

Under the reasonable consumer test, plaintiffs must show that “members of the public are likely to be deceived” by the Product's packaging. Williams, 552 F.3d at 938. “ ‘Likely to deceive’ implies more than a mere possibility that the [packaging] might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner.” Lavie v. Proctor & Gamble Co., 129 Cal. Rptr. 2d 486, 495 (Cal. Ct. App. 2003). “Rather, the phrase indicates that the [representation] is such that it is probable that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.” Id.

Importantly, whether a defendant's practices are deceptive is usually a question of fact that is not appropriate for determination at the motion to dismiss stage. Williams v. Gerber Prod. Co., 552 F.3d 934, 938-39 (9th Cir. 2008) (“[W]hether a business practice is deceptive will usually be a question of fact.”). At this stage, “[t]he focus is on whether enough facts support a reasonable consumer's reaction to an allegedly deceptive [product]—not whether enough facts can definitively prove fraud at the pleading stage.” Chester v. TJX Cos., Inc., 2016 WL 4414768, at *12 (C.D. Cal. Aug. 18, 2018). Indeed, granting a motion to dismiss on this question is only appropriate in “rare situation[s].” Williams v. Gerber Prod. Co., 552 F.3d 934, 939 (9th Cir. 2008). That said, dismissal is appropriate under the reasonable consumer test when “the [representation] itself [makes] it impossible for the plaintiff to prove that a reasonable consumer was likely to be deceived.” Id. at 939.

The Court finds that this case is not one of the “rare situation[s]” where resolution of the reasonable consumer test is appropriate at the motion to dismiss stage. Given that Plaintiff alleges that nearly half of the Product's packaging is filled with air (40-47%), it is certainly plausible that a reasonable consumer would be deceived regarding the amount of product inside of the packaging. See Fresh Bellies, Inc., 2024 WL 4500727, at *8 (holding that it was plausible that a reasonable consumer would be deceived in a slack fill case where the package was filled with 37% air); see also Cordes v. Boulder Brands USA, Inc. (“Cordes I”), No. 18-cv-6534-PSG, 2018 WL 6714323, at *3-*4 (C.D. Cal. Oct. 17, 2019) (holding that it is “at least plausible that a consumer could be deceived by a package filled with forty percent air”).

That the Product's packaging informs consumers that there is nine ounces worth of product inside the packaging does not render it “impossible for the plaintiff to prove that a reasonable consumer was likely to be deceived.” See Williams, 552 F.3d at 939. This is because “a reasonable consumer is not necessarily aware of a product's weight or volume and how that weight or volume correlates to the product's size.” Escobar v. Just Born Inc., No. 17-cv-01826, 2017 WL 5125740, at *8-*9 (C.D. Cal. June 12, 2017) (denying a motion to dismiss in a slack fill case even though “the Products’ packaging accurately indicated that a consumer would receive 141 grams or 5 ounces of candy” because “a reasonable consumer may believe that 141 grams or five ounces of candy is equivalent to an amount approximately the size of the Products’ box”). Id. at *9.

To be sure, at least some district courts have granted motions to dismiss where the product's packaging accurately indicated the amount of product inside the box, but that is not the case here. For example, in Bush v. Mondelez Int'l, Inc., the court granted the defendant's motion to dismiss where the product's packaging indicated the number of cookies the package contained, thus giving the customer a reasonable expectation of the product's contents beyond just its total weight. No. 16-cv-02460, 2016 WL 7324990, at *2 (N.D. Cal. Dec. 16, 2016). Similarly, in Buso v. ACH Food Companies, Inc., the court granted a motion to dismiss on reasonable consumer grounds in a slack fill case where the packaging at issue stated that the “box contains enough cornmeal mix to make ‘one 8-in square loaf of cornbread or 12 standard cornbread muffins.” 445 F. Supp. 3d 1033, 1038 (S.D. Cal. 2020).

This case is different. Unlike Bush and Buso, where the product's packaging indicated the number of cookies in the package and the amount of cornbread loaves the cornbread mix could make, the packaging in this case does not inform consumers how many bowls of cereal are contained within the packaging. See 2016 WL 7324990, at *2; 445 F. Supp. 3d at 1038. Rather, it just states the total weight of the packaging. This does little to inform consumers of how much cereal is contained inside. Yes, the nutrition label states the number of servings in the packaging, but consumers understand that the serving size on a nutrition label does not necessarily correspond with how much cereal consumers typically eat in one serving (indeed, it is not as if consumers perfectly measure out one half cup of cereal into a bowl).

The Court also rejects Defendant's contention that no reasonable consumer could be deceived because the packaging displays a picture of a cereal serving on the front label and the number of servings on the back label. As our sister court aptly put it in Reyes v. Just Born, Inc., it is an “almost absurd the assumption that even a math major could rapidly ․ multipl[y] the number of servings to come up with a total [cereal] count and then estimate the three-dimensional volume of each piece based on an image to calculate the total ratio of [cereal] volume to box volume.” 2024 WL 1748629, at *4 (emphasis in original). “Barring a consumer's exceptional skill in the party game of guess-how-many-marbles-are-in-the-bowl, it is difficult to imagine how a consumer could generate an accurate estimate of how much [cereal] she is buying.” Id.

Nor is the Court convinced by Defendant's argument that no reasonable consumer could be deceived because the pliable nature of the Product's packaging allows consumers to physically ascertain the amount of product inside. “The reasonable consumer does not don Sherlock Holmes garb to scrutinize an entire aisle filled with shelves of [ ] various [cereal products] by comparing the exact weight of each box's content with the price across a dozen brands or shaking and manipulating each box to detect the nature of the hidden culinary treasure.” Stewart, 537 F. Supp. 3d at 1141.

Finally, that some of the customer reviews on the webpage Plaintiff purchased the Product from display the Product's packaging such that the slack fill is visible does not defeat Plaintiff's claims. At this early stage, the Court will not conclude that a reasonable consumer would tirelessly read through all of a product's online reviews (the Product in this case has more than 1,000 reviews) to check for photos or videos that could provide insight into what portion of the packaging is filled with air.

In sum, given that the reasonable consumer test is a fact intensive inquiry and that this case remains at the pleading stage, the Court finds that Plaintiff has sufficiently alleged that the Product's packaging is misleading.

C. Reliance

Plaintiffs “must demonstrate actual reliance in order to assert a claim for common law fraud or a claim under the CLRA.” Gonzales, 2024 WL 4609853, at *6. “To adequately allege reliance, a plaintiff must, at minimum, allege that he saw the representation at issue.” Id. (citing Durell v. Sharp Heathcare, 183 Cal. App. 4th 1350, 1363 (2010)).

Here, the representation at issue is the size of the Product's packaging. It is not immediately apparent that Plaintiff saw the Product's packaging before purchasing. This is because, as shown below, the size of the Product's packaging is not apparent from the initial display image on the Amazon webpage.

But while the primary photo on the Amazon webpage does not indicate the size of the Product's packaging, other photos available on the webpage do. This is demonstrated by the two screenshots below. The first shows the default photograph of the Product's packaging, but circles in red where consumers would click to see the second paragraph. The second photograph shows the Product's packaging next to a bowl of cereal, thus providing an indication of the packages’ size.

In his complaint, Plaintiff alleges that the Amazon webpage “allows consumers to view the physical container of the Product before purchase.” FAC ¶ 44. Plaintiff also alleges that, in purchasing the Product from the Amazon webpage, he “relied upon ․ the size of the package and the product label.” Id. ¶ 22. These allegations (which the Court must take as true), combined with the fact that easily available photographs on the Amazon webpage do in fact display the size of the Product's packaging, are sufficient at this early stage to establish that Plaintiff ascertained the size of the Product's packaging before making his purchase. This conclusion is bolstered by the Court's obligation to make all reasonable inferences in favor of the non-moving party. Plaintiff has thus sufficiently pled actual reliance.

D. Safe Harbor Provision

Specifically with respect to Plaintiff's CLRA claim, Defendant contends that the claim is deficient because Plaintiff fails to sufficiently plead that the Product's packaging does not fall within the safe harbor provisions outlined in Cal. Bus. & Prof. Code § 12606.2(c). The Court disagrees.

Claims that a food product misrepresents its quantity by including extra space in its packaging (i.e., “slack fill” claims) are “only actionable under the CLRA when [the extra space] is ‘nonfunctional.’ ” Judy Oh v. Fresh Bellies, Inc., No. 24-cv-5417-PSG, 2024 WL 4500727, at *6 (C.D. Cal. Oct. 15, 2024) (citing Cal. Bus. & Prof. Code § 12606(c)). Slack fill is nonfunctional, and thus actionable under the CLRA, unless it exists for any of the eight reasons outlined by Cal. Bus & Prof. Code § 12606(c). See id.; Cal. Bus & Prof. Code § 12606(c).

Here, the Court finds that Plaintiff has sufficiently alleged that the slack fill in the Product does not fall within the exceptions listed in Cal. Bus. & Prof. Code § 12606(c). To start, the Court rejects Defendant's contention that Plaintiff's allegations regarding the 12606(c) safe harbor provisions are too conclusory. To be sure, general statements that the slack fill at issue “serves none of [the] functionalities” listed in Section 12606(c) are insufficient to state a claim for relief. See Bush v. Mondelez Int'l, Inc., No. 16-cv-02460-RS, 2016 WL 7324990, at *4 (N.D. Cal. Dec. 16, 2016) (holding that the plaintiff's allegations could not survive a motion to dismiss where plaintiff listed various circumstances in which slack-fill can be functional and asserted the product at issue “serves none of these functionalities”).

But Plaintiff does more than make general statements. For each potential functionality of the Product's slack fill, Plaintiff provides an explanation for why that functionality does not apply. See FAC 28-47. For example, Plaintiff alleges that the slack fill is not functional for the “[p]rotection of the contents of the package,” 12606.2(c)(1); by explaining that “the greater the amount of slack-fill, the more room the contents, which are pieces of cereal, have to bounce around during shipping and handling, making it more likely that the contents will break or sustain damage.” FAC ¶ 28. This allegation, and Plaintiff's similar explanations of why the other functionality safe harbors do not apply, are sufficiently non-conclusory. See Padilla v. Whitewave Foods Co., 2019 WL 4640399, at *13 (C D. Cal. July 26, 2016) (finding that some sort of explanation for why the functional safe harbors do not apply is “sufficient to state the basis for a plausible claim for relief” even when “[t]he allegations of the FAC as to nonfunctionality are not detailed”).²

Turning to Plaintiff's specific allegations regarding each safe harbor provision, the Court finds that Plaintiff has sufficiently alleged that none of the functionality provisions apply. In total, there are eight potential functionalities outlined in Section 12606(c). But Defendant only contends that four of them apply:

• 12606.2(c)(3): slack fill due to unavoidable product settling during shipping and handling.

• 12606.2(c)(5): slack fill due to the fact that the product consists of a food packaged in a reusable container.

• 12606.2(c)(7): slack fill in products where the amount of product fill is clearly disclosed.

• 12606.2(c)(8): slack fill in products where the mode of commerce does not allow the consumer to view or handle the physical container or product.

As explained below, Plaintiff has sufficiently alleged that these three functionality provisions do not apply to the Product.

i. 12606.2(c)(3): slack fill due to unavoidable product settling during shipping and handling.

Slack fill is functional, and thus not misleading, if it exists due to “[u]navoidable product settling during shipping and handling.” Cal. Bus. & Prof. Code § 12606.2(c)(3). Plaintiff alleges that the slack-fill in the Product's packaging fits within this category because “[g]iven the Product's composition, any settling occurs immediately at the point of fill.” FAC ¶ 32. This explanation “is sufficient to withstand a motion to dismiss.” See Fres Bellies, Inc., 2024 WL 4500727, at *7 (holding that exact same allegation—“[g]iven the Porduct's composition, any settling occurs immediately at the point of fill”—was “sufficient to withstand a motion to dismiss”); see also Escobar v. Just Born, Inc., 17-cv-01826-BRO, 2017 WL 5125740, at *12 (C.D. Cal. June 12, 2017) (same); Reyes v. Just Born, Inc., No. 2:23-cv-10848-HDV, 2024 WL 1748629, at *4 (C. D Cal. Apr. 8, 2024) (same).

ii. 12606.2(5): slack fill because the product consists of a food packaged in a reusable container.

Slack fill is not misleading if it exists because the food product is packaged in a reusable container. Cal. Bus. & Prof. Code § 12606.2(5). Specifically, the safe harbor applies if “the product consists of a food packaged in a reusable container where the container is part of the presentation of the food and has value that is both significant in proportion to the value of the product and independent of its function to hold the food, such as a gift product consisting of a food or foods combined with a container that is intended for further use after the food is consumed or durable commemorative or promotional packages.” Id.

Plaintiff alleges that this functionality safe harbor does not apply because “[t]he package is intended to be discarded immediately after the Product is consumed.” FAC ¶ 34. The Court agrees. Yes, the Product's packaging is resealable. But that the Product's packaging is resealable does not mean that the packaging is reusable such that it holds “value ․ independent of [the packaging's] function to hold the food.” See Cal. Bus. & Prof. Code § 12606.2(5). Quite the contrary, as both Plaintiff's allegations and common sense make clear, once consumers finish all the food in the Product's resealable container, they throw the container out despite its resealable qualities. The Product thus does not fall within the 12606.2(5) safe harbor.

iii. 12606(c)(7): slack fill in products where the amount of fill in the packaging is clearly disclosed.

Slack fill is not actionable if the amount of fill in the product's packaging “is clearly and conspicuously depicted on any side of the exterior packaging, excluding the bottom, accompanied by a clear and conspicuous disclosure that the depiction is the ‘actual size’ of the product or inmediate product container.” Cal. Bus. & Prof. Code § 12606.2(c)(7). The exception also applies if the packaging includes “[a] line or a graphic that represents the product or product fill and a statement communicating that the line or graphic represents the product or product fill such as ‘Fill Line.’ ”

Here, the Product contains none of the disclosures outlined in Section 12606(c)(7). Rather, the Product merely has a picture of a bowl of cereal on the front and a nutrition label that includes the number of servings. Defendant incredulously contends this is sufficient because a consumer could count the number of cereal pieces depicted on the front of the box and multiply that amount by the number of servings listed in the nutrition label. But counting the number of cereal pieces in a picture of a cereal bowl displayed on the Product's packaging and then multiplying that by the number of servings is a far cry from a “clear and conspicuous disclosure” of the amount of fill in the product's packaging.³ See id.

iv. 12606(c)(8): slack fill in products where the mode of commerce does not allow the consumer to view or handle the physical container or product.

Under California Bus. & Prof. Code § 12606(c)(8), slack fill is not actionable where “[t]he mode of commerce” in which the product was purchased “does not allow the consumer to view or handle the physical container or product.” Here, Plaintiff purchased the Product from Amazon's webpage, so Plaintiff certainly could not “handle” the Product before purchasing.

Plaintiff alleges that the webpage allowed Plaintiff to “view” the physical container of the Product before purchase, and thus Section 12606(c)(8) does not apply. This is technically true. Yes, the initial image of the Product on the Amazon webpage shows the Product's packaging as a stand-alone image such that its size is not clear. But other images on the Amazon webpage, including images attached to consumer reviews, do show the product's packaging next to real world objects such that a purchaser could view the size of the package.

Ultimately, this is a moot point. Regardless of whether this suffices as being able to “view” the Product, Section 12606.2(c)(8) is not operative because it conflicts with federal regulations. Section 12606 explains that “this section is not operative to the extent that it is not identical to the federal requirements.” Cal. Bus. & Prof. Code § 12606.2(c)(f). Federal requirements laid out in “21 U.S.C. § 343(d) and federal regulation 21 C.F.R. § 100.11 do not contain the ‘mode of commerce’ requirement found in Cal. Bus. & Prof. Code § 12606.2(c)(8).” Stewart, 537 F. Supp. 3d at 1155. “Thus, by the terms of § 12606.2(f), the mode of commerce requirement is ‘not operative.’ ” Id.

E. Pre-suit Demand Letter

In an action for damages under the CLRA, a plaintiff must provide a potential defendant with notice of the alleged CLRA violation and demand that he or she “correct, repair, replace or otherwise rectify” the prohibited practice. Cal. Civ. Code § 1782. Plaintiffs must do so at least “thirty days” before filing suit. Id. This notice “shall be in writing and shall be sent by certified or registered mail, return receipt requested, to the place where the transaction occurred or to the person's principal place of business within California.” Id.

“The CLRA's notice requirement is not jurisdictional, but compliance with this requirement is necessary to state a claim.” Cattie v. Wal-Mart Stores, Inc., 504 F. Supp. 2d 939, 949 (S.D. Cal. 2007) (citing Outboard Marine Corp. v. Superior Court, 52 Cal. App. 3d 30, 40-41 (1975) (addressing failure to give notice under California's demurrer standard)). “Where a plaintiff fails to provide pre-suit notice, the damages claim must simply be dismissed until 30 days or more after the plaintiff complies with [the CLRA's notice requirements].” Clark v. In Comm Financial Services, Inc., 2023 WL 5167364, at *5 (C.D. Cal. July 17, 2023).

In this case, Defendant raises two objections to Plaintiff's notice: (1) that Plaintiff did not send notice to the correct address; and (2) that Plaintiff's notice did not include the required information.

i. Where Plaintiff Sent the CLRA Notice Letter

By the letter of the CLRA statute, plaintiffs must send notice to the defendant's “principal place of business in California” or “the place where the transaction occurred.” Cal. Civ. Code § 1782. Here, Plaintiff alleges that Defendant does not have a principal place of business in California. FAC ¶ 64. Defendant does not contest that allegation, so at the Court will assume that it is true.

Without a principal place of business in California, the next place Plaintiff could send notice is the place where the transaction occurred. But the transaction occurred on the internet, so there is not a clear “place” where the transaction took place.

The Court is thus faced with the following question: where should plaintiffs send CLRA demand letters when the defendant does not have a principal place of business in California and where the product at issue was purchased on the internet? Neither California appellate courts nor the Ninth Circuit have answered this question definitively. The Court thus turns to the statute itself. In interpreting a statute, a court's “fundamental task” is “to determine the Legislature's intent so as to effectuate the law's purpose.” Coalition of Concerned Cmty., Inc. v. City of Los Angeles, 34 Cal. 4th 733, 737 (2004). The purpose of the CLRA's notice requirement is “to give the manufacturer or vendor sufficient notice of the alleged defects to permit appropriate corrections or replacements.” Outboard Marine Corp. v. Superior Court, 52 Cal. App. 3d 30, 40 (1975).

Given this purpose, the Court finds that in cases where the defendant does not have a principal place of business in California and where there is no obvious place where the transaction occurred, that plaintiffs can satisfy the CLRA notice requirement by sending notice to the defendant's out-of-state corporate headquarters.⁴ See Shein v. Canon U.S.A., Inc., No. 08-cv-07323-CAS, 2009 WL 3109721, at *6 (C.D. Cal. Sept. 22, 2009) (holding that “sending the demand letter to defendant's headquarters in New York ․ substantially complies with the purposes of the [CLRA] notice requirement”). Serving the out-of-state corporate headquarters maximizes the chances that the relevant decision makers will take notice of the alleged CLRA violations and have the chance to make “appropriate corrections or replacements.” See Outboard Marine Corp., 52 Cal. App. 3d at 40. Such service is thus consistent with the purposes of the CLRA.

In this case, Plaintiff sent notice to an address in New York that he alleges he found within the Terms and Conditions section of Defendant's website: 30 W 53rd St, New York NY 10019 (the “New York address”).⁵ The Court is not exactly sure what this address is. Defendant contends that it “has not received mail at [the New York address] for at least two years,” and that the address is for a shared working space by the name of Spacious Flagship.” Def. Mot. to Dismiss at 14, ECF No. 24. This seems to imply that Defendant used to use the New York address but no longer does. Def. Mot. to Dismiss at 14, ECF No. 24.

But regardless of the New York address's association with Defendant, New York address was not Defendant's out-of-state corporate headquarters at the time Plaintiff sent notice. As the Court explained above, given that Defendant did not have a principal place of business in California and that there is no obvious place where the transaction occurred in this case, Plaintiff should have sent CLRA notice to Defendant's out-of-state headquarters. See Jones v. Porsche Cars North America, Inc., No. 15-cv-05766-GW, 2015 WL 11995257, at *4 (C.D. Cal. 2015) (“[B]y sending the demand letter to [D]efendant's headquarters in [Georgia] ․ [P]laintiffs have served notice that substantially complies with the purposes of the notice requirement.”); Shein, 2009 WL 3109721, at (same); Kennedy v. Full Tilt Poker, Case No. 09-cv-07964-MMM, 2010 WL 3984749, at *4 n.19 (C.D. Cal. Oct. 12, 2010) (“Notice sent to a corporation's out-of-state headquarters ․ has been deemed sufficient under § 1782.”). Because Plaintiff failed to do so, he has failed to satisfy the CLRA notice requirements, and thus his CLRA claim for damages must be dismissed.

ii. The Content of Plaintiff's CLRA Notice

Defendant also takes issue with the content of Plaintiff's CLRA notice. Notice under the CLRA must “(1) [n]otify the person alleged to have employed or committed methods, acts, or practices declared unlawful by Section 1770 of the particular alleged violations of Section 1770.” The notice must also specify the “particular alleged violations” of the CLRA. Corbett v. PharmaCare U.S., Inc., 567 F. Supp. 3d 1172, 1200 (S.D. Cal. 2021).

Despite Defendant's contentions to the contrary, Plaintiff's notice complies with these requirements. The notice explains that Defendants have: “violated California Civil Code Section 1750, including without limitations sections 1770(a)(2), 1770(a)(5), 1770(a)(7), and 1770(a)(9).” ECF No. 24-1. The notice explains that Defendant violated these statutes by selling Plaintiff a “package of Catalina Crunch” where the “package was over 50% empty.” Id. Plaintiff explains that by selling this Catalina Crunch product, Defendant violated the listed CLRA statutes by “(1) misrepresenting the approval of the Product as compliant with the Sherman Act; (2) representing the Product has characteristics and quantities that it does not have; (3) advertising and packaging the Product with intent not to sell it as advertised and packaged; and (4) representing that the Product has been supplied in accordance with a previous representation as to the quantity of product contained within it.” Id. Together, this is more than enough to notify Defendant of the “particular alleged violations of Section 1770.” See Corbett, 567 F. Supp. 3d at 1200.

iii. Dismissal without Prejudice

There is some dispute as to whether a court should dismiss a CLRA claim with or without prejudice when a plaintiff fails to satisfy the Section 1782 notice requirements. The statute itself is silent on this issue, and neither the Ninth Circuit nor the California Supreme Court has weighed in. So the Court will again turn to the purpose of the CLRA notice requirement. As noted above, the purpose of the CLRA notice requirement is “to give the manufacturer or vendor sufficient notice of the alleged defects to permit appropriate corrections or replacements.” Outboard Marine Corp., 52 Cal. App. at 40.

The Court finds that “[a] dismissal with prejudice of a damages claim filed without requisite notice is not required to satisfy this purpose.” Morgan v. AT&T Wireless Servs., Inc., 177 Cal. App. 4th 1235, 1261 (2009). Just the contrary, dismissing a plaintiff's claim without prejudice prompts the plaintiff to re-send notice, this time properly complying with the CLRA's requirements, thus serving the CLRA's purpose of “giv[ing] the manufacturer or vendor sufficient notice of the alleged defects to permit appropriate corrections or replacements.” See Outboard Marine Corp., 52 Cal. App. at 40. Given that dismissing with prejudice is not required to effectuate the purpose of the Section 1782 notice requirements, such permanent dismissal would unnecessarily limit the scope of the CLRA. This would itself undermine the CLRA's larger purpose: protecting consumers from misleading consumer products.

Accordingly, the court holds that rather than dismiss Plaintiff's claim with prejudice, his “claim must simply be dismissed until 30 days or more after the plaintiff complies with the notice requirements.” See Morgan, 177 Cal. App. 4th at 1261. Of course, “[i]f, before that 30-day period expires the defendant corrects the alleged wrongs or indicates it will correct the wrongs, [then] the defendant cannot be held liable for damages.” Id.

V. Conclusion

For the foregoing reasons, the Court DENIES IN PART and GRANTS IN PART Defendant's motion to dismiss. Defendant's motion to dismiss Plaintiff's common law fraud claim is DENIED. Defendant's motion to dismiss Plaintiff's CLRA claim for damages is GRANTED.

The Court dismisses Plaintiff's CLRA damages claim WITHOUT PREJUDICE. Plaintiff has 30 days from the date of this order to provide pre-suit notice to Defendant consistent with the requirements of the CLRA. If Plaintiff fails to do so, the Court will dismiss his claim with prejudice.

IT IS SO ORDERED.

FOOTNOTES

1.   After Plaintiff opposed Defendant's motion to dismiss, Defendant filed an ex parte application to strike Plaintiff's response because it went over the word limit listed in the Court's local rules. The Court denies Defendant's ex parte application. District courts have “broad discretion to depart from the strict terms of the local rules where it makes sense to do so and substantial rights are not at stake.” Pro. Programs Grp. v. Dep't of Com., 29 F.3d 1349, 1353 (9th Cir. 1994). Here, the Court exercises this “broad discretion” and holds that Plaintiff going over the word limit in his opposition does not warrant striking Plaintiff's opposition in its entirety. Ultimately, Plaintiff's infraction is inconsequential and does not have a substantial effect on this case. Regardless of how many words Plaintiff puts into his opposition, it is the job of the Court to assess the validity of Plaintiff's pleadings. Plaintiff's extra words were not so profound as to by themselves shift the Court's decision on Defendant's motion to dismiss. Defendant's ex parte motion to strike is therefore DENIED.

2.   Even if Plaintiff's explanations were not enough (they are), he further supports his allegations that the Product's slack fill is nonfunctional by referencing comparator products, such as the “Blueberry Nut Trail Mix” and “organic Powdered Sugar,” where similar food products with similar containers contain significantly less empty space. FAC ¶¶ 20-21. Plaintiff's inclusion of these comparator products in his complaint bolsters the Court's conclusion that his allegations are sufficient at the pleading stage to establish that the slack fill is non-functional.

3.   Even ignoring the ridiculousness of Defendant's suggestion that consumers court the number of cereal pieces shown in a picture on the Product's packaging, the picture of cereal on the Product's packaging is not even an accurate depiction of a serving size. The packaging itself discloses that the picture of cereal in the packaging is “enlarged to show texture.”

4.   The Court acknowledges that the CLRA could be read as only permitting suit when the defendant has a principal place of business in California or a specific place where the transaction occurred. But such an interpretation is inconsistent with the statute's legislative history. Indeed, prior to 2000, the CLRA explicitly allowed plaintiffs to send demand letters to the Secretary of the State of California if the plaintiff could not otherwise send effective notice. Cal Civ. Code § 1782(a) (1999). In 2000, the California legislature removed this method of providing notice in a larger bill designed to eliminate the Secretary as the “agent for service of process’ ” for various provisions, including section 1782(a). See 1999 Cal. Legis. Ch. 1000 (S.B.284). As the court in Shein pointed out, “[t]here is no indication by this amendment to the notice provision of the CLRA, [that] the legislature intended to indirectly limit the coverage of the CLRA, and thus exclude some businesses who sell consumer goods, but do not have a retail location or a principal place of business in California, from being subject to CLRA damage claims. Had the legislature intended to exempt these business ․ it could have explicitly done so in the statute[.]” 2009 WL 3109721 at *7. Accordingly, “strictly applying the plain language of section 1782” such that only notice to a principal place of business in California or a specific place where the transaction occurred would be effective, “would contravene the goals of the CLRA notice provision which is to facilitate remediation of consumer actions.” See id.

5.   Interestingly, the current version of the Terms and Conditions on Defendant's website does not contain that New York Address, but rather contains an address in Indiana. Plaintiff contends that this is because Defendant changed the address in its Terms and Conditions between the time in which Plaintiff initiated this suit and when Defendant filed its motion to dismiss. The Court need not resolve this dispute, however, as sending notice to the New York address was insufficient regardless of whether Defendant included the address in its terms of service.

STEPHEN V. WILSON, UNITED STATES DISTRICT JUDGE