Proposed Order Granting Joint Motion
Case 3:17-cv-01345-JLS-BGS Document 38 Filed 05/09/18 PageID.765 Page 1 of 8
1 2 3 4 5 6 7 8 9
LAW OFFICES OF RONALD A. MARRON RONALD A. MARRON (SBN 175650) [email protected] MICHAEL T. HOUCHIN (SBN 305541) [email protected] 651 Arroyo Drive San Diego, California 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 LAW OFFICE OF DAVID ELLIOT DAVID ELLIOT (SBN 270381) [email protected] 2028 3rd Avenue San Diego, CA 92101 Telephone: (858) 228-7997 Attorneys for Plaintiffs and the Proposed Class
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA BARRY ALLRED and MANDY C. ALLRED, on behalf of themselves, all others similarly situated, and the general public,
) Case No. 3:17-cv-01345-JLS-BGS ) ) CLASS ACTION ) ) Plaintiffs, MEMORANDUM ) PLAINTIFFS’ OF POINTS AND AUTHORITIES ) IN SUPPORT OF THEIR ) OPPOSITION TO DEFENDANTS’ vs. ) MOTION FOR ) RECONSIDERATION AND/OR ) CLARIFICATION FRITO-LAY NORTH AMERICA, INC., ) a Delaware Corporation, and FRITO) LAY, INC., a Delaware Corporation, ) ) Date: June 21, 2018 ) Time: 1:30 PM Defendants. ) Judge: Hon. Janis L. Sammartino ) Ctrm: 4D ) ) ) ) )
27 28 -1Allred v. Frito-Lay North America, Inc., et al., Case No. 3:17-cv-01345-JLS-BGS PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR RECONSIDERATION AND/OR CLARIFICATION
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1
Plaintiffs Barry Allred and Mandy C. Allred (collectively “Plaintiffs”), on
2
behalf of themselves, all others similarly situated, and the general public,
3
respectfully submit this Memorandum of Points and Authorities in Opposition to
4
Defendants Frito-Lay North America, Inc.’s and Frito-Lay, Inc.’s (“Defendants” or
5
“Frito-Lay”) Motion for Reconsideration and/or Clarification that was filed on April
6
4, 2018. See ECF No. 29.
7
I.
INTRODUCTION
8
Reconsideration is an “extraordinary remedy to be used sparingly in the
9
interests of finality and conservation of judicial resources.” Kona Enters., Inc. v.
10
Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). Through its Motion, Frito-Lay
11
seeks reconsideration of the Court’s March 7, 2018 Order Denying Defendants’
12
Motion to Dismiss. See Dkt. No. 26. Frito-Lay argues that (1.) “new circumstances
13
exist and confirm that Plaintiffs’ malic acid allegations are speculative and
14
implausible,” (2.) “The Court’s ingredient list disclosure ruling misreads the malic
15
acid regulation,” and that (3.) “The Court should clarify that the continuous accrual
16
doctrine does not authorize claims based on purchases outside the limitations
17
period.” None of these arguments are convincing and Frito-Lay fails to introduce
18
any new facts that are pertinent to the present matter. Indeed, the only “new
19
evidence” that Frito-Lay relies upon are class action complaints that similarly allege
20
that malic acid is an artificial flavoring ingredient that should be conspicuously
21
disclosed as such on the product packaging.
22
Defendants’ Motion to Dismiss was not clearly erroneous. In fact, the Court’s Order
23
is consistent with the results that were reached in a similar class action that is pending
24
in this District. See Allred v. Kellogg Co., No. 17-CV-1354-AJB-BLM, 2018 WL
25
1158885, at *1 (S.D. Cal. Feb. 23, 2018) (“Kellogg”). For the reasons set forth
26
below, Plaintiffs respectfully request that the Court deny Defendants' Motion in its
27
entirety.
The Court’s Order Denying
28 -1Allred v. Frito-Lay North America, Inc., et al., Case No. 3:17-cv-01345-JLS-BGS PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR RECONSIDERATION AND/OR CLARIFICATION
Case 3:17-cv-01345-JLS-BGS Document 38 Filed 05/09/18 PageID.767 Page 3 of 8
1
II.
LEGAL STANDARD
2
“In the Southern District of California, a party may apply for reconsideration
3
‘[w]henever any motion or any application or petition for any order or other relief
4
has been made to any judge and has been refused in whole or in part.’” Arellano v.
5
San Diego Cty., No. 14-CV-2404 JLS (KSC), 2018 WL 1851331, at *2 (S.D. Cal.
6
Apr. 17, 2018) (citing Civ. Local R. 7.1(i)(1)). However, “a motion for
7
reconsideration should not be granted, absent highly unusual circumstances, unless
8
the district court is presented with newly discovered evidence, committed clear error,
9
or if there is an intervening change in the controlling law.” Marlyn Natraceuticals,
10
Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009). This is
11
because “[r]econsideration is an ‘extraordinary remedy, to be used sparingly in the
12
interests of finality and conservation of judicial resources.’” Arellano, 2018 WL
13
1851331, at *2 (quoting Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890
14
(9th Cir. 2000)). “Ultimately, whether to grant or deny a motion for reconsideration
15
is in the ‘sound discretion’ of the district court.” Id. (citing Navajo Nation v. Norris,
16
331 F.3d 1041, 1046 (9th Cir. 2003)). A party “may not raise new arguments or
17
present new evidence if it could have reasonably raised them earlier.” Id. (citing
18
Kona Enters., 229 F.3d at 890). Moreover, “[t]here is no requirement that reasons
19
be stated for the denial of a motion for reconsideration[.]” Ramser v. Laielli, No. 15-
20
CV-2018-CAB-DHB, 2017 WL 3524879, at *1 (S.D. Cal. Aug. 15, 2017) (quoting
21
Briddle v. Scott, 63 F.3d 364, 381 (5th Cir. 1995)).
22
III.
ARGUMENT
23
A. Plaintiffs’ malic acid claims are not speculative nor are they implausible
24
Frito-Lay argues that new class action complaints that have been filed alleging
25
that malic acid is an artificial flavoring ingredient constitute “new circumstances”
26
that Plaintiffs’ allegations are implausible as a matter of law. Def.s’ Mem. at 3.
27
However, this Court correctly held that whether malic acid functions as a flavoring
28
ingredient in the Lay’s Salt & Vinegar flavored Potato Chips is “a factual -2Allred v. Frito-Lay North America, Inc., et al., Case No. 3:17-cv-01345-JLS-BGS PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR RECONSIDERATION AND/OR CLARIFICATION
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1
determination that would be inappropriately resolved on a motion to dismiss.” See
2
Dkt. No. 26 at 9 (citing Engurasoff v. Coca-Cola Co., No. C 13-03990 JSW, 2014
3
WL 4145409, at *3-4 (N.D. Cal. Aug. 21, 2014) (finding that the federal regulations
4
“are insufficient to insert a requirement that all artificial flavors, by definition, must
5
impart a characteristic taste and/or aroma” and finding “it cannot make a factual
6
determination upon a motion to dismiss as to whether phosphoric acid qualifies as
7
an artificial flavor”); Gitson v. Trader Joe’s Co., No. 13-CV-01333-WHO, 2014 WL
8
1048640, at *4 (N.D. Cal. Mar. 14, 2014) (“At the pleading stage I cannot second
9
guess the truth of the plaintiffs' allegations that the identified ingredients function as
10
artificial flavors....”); Ivie v. Kraft Foods Global, Inc., No. 12–cv–2554 RMW, 2013
11
WL 685372, at *10 (N.D. Cal. Feb. 25, 2013) (“[T]he factual determinations of
12
whether [the ingredients are] used as a sweetener and/or ... a flavoring agent in this
13
particular product, and whether a reasonable consumer would have thus been misled
14
by the ‘no artificial sweeteners or preservatives’ label, are inappropriate for
15
determination on a motion to dismiss.”). The court in Kellogg also similarly held
16
that “[a]t this stage, the Court cannot look beyond the pleadings and must take
17
reasonable allegations as true” and that “Allred has sufficiently pled the ingredients
18
are artificial and used as flavoring agents.” Kellogg, 2018 WL 1158885, at *2. The
19
Court’s Order was not clearly erroneous as a matter of law.
20
Frito-Lay further contends that “Plaintiffs cannot plausibly contend that malic
21
acid is a sort of ‘super flavor,’ able to impart any and all flavors in the world—
22
particularly in the absence of any supporting facts.” Def.s’ Mem. at 5:12-14.
23
However, Plaintiffs’ complaint plausibly alleges that the artificial malic acid that is
24
placed in the Product is used “to simulate the sour flavor of vinegar.” Compl., ¶ 33.
25
Indeed, Frito-Lays’s own product label shows that the artificial malic acid is a part
26
of “salt & vinegar seasoning” containing “maltodextrin [made from corn], natural
27
flavors, salt, malic acid, vinegar.” Compl., ¶ 20. Plaintiffs allege that the artificial
28
malic acid is used to deliver a “tart” and “persistent sour” flavor. Compl., ¶ 32. -3Allred v. Frito-Lay North America, Inc., et al., Case No. 3:17-cv-01345-JLS-BGS PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR RECONSIDERATION AND/OR CLARIFICATION
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Plaintiffs’ allegations are not only plausible, they are common knowledge in
1 2
Frito-Lay’s own industry. For example, industry sources state the following:
3 4
“Salt and vinegar flavored potato chips [] use [malic acid] to
5
produce a tart, vinegar-like flavor.”
6
Source: IHC Chempharm Company, Malic acid1
7 8
“It [malic acid] is also used with or in place of the less sour citric
9
acid in [] Salt & Vinegar flavor potato chips.”
10
Source: Chemco Chemical Company, Malic acid2
11 12
“Salt and vinegar flavored chips use malic acid to produce that
13
appealing tart taste.”
14
Source: Bell Chem Corp., “Malic acid and its many uses.”3
15 16
“Malic Acid . . . is used to give a tart taste to beverages.”
17 Source: Coca Cola Company, malic acid.4
18 19 20
“Malic Acid: We use this ingredient in products where a tart taste
21
is expected[.]”
22
Source: Campbell Soup Company, “What’s in my food?” (malic acid).5
23 24 25 26 27 28
See Declaration of Ronald A. Marron in Support of Plaintiffs’ concurrently-filed Request for Judicial Notice (“Marron Decl.”), ¶ 3 & Ex. 1. 2 Marron Decl., ¶ 4 & Ex. 2. 3 Marron Decl., ¶ 5 & Ex. 3. 4 Marron Decl., ¶ 6 & Ex. 4. 5 Marron Decl., ¶ 7 & Ex. 5. -4Allred v. Frito-Lay North America, Inc., et al., Case No. 3:17-cv-01345-JLS-BGS PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR RECONSIDERATION AND/OR CLARIFICATION 1
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1
“Without malic acid, the signature tartness of salt and vinegar chips
2
wouldn't be quite as tart, the extreme sourness of warheads would be
3
miniscule, and the fruit flavors in gum wouldn't be nearly as fruity.”
4 5
Source: Nuts.com6 When ruling on a motion to dismiss for failure to state a claim upon which
6
relief can be granted, the court accepts “allegations in the complaint as true and
7
construe the pleadings in the light most favorable to the nonmoving party.” Knievel
8
v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). Indeed, “a well-pleaded complaint
9
may proceed even if it strikes a savvy judge that actual proof of those facts is
10
improbable, and ‘that a recovery is very remote and unlikely.’” Bell Atl. Corp. v.
11
Twombly, 550 U.S. 544, 556 (2007) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236
12
(1974)). Because the allegations in Plaintiffs’ complaint rise above the speculative
13
level, Frito-Lay’s Motion for Reconsideration should be denied.
14
B. The Court correctly interpreted the malic acid regulation
15
Frito-Lay next argues that “the Court’s decision rejecting Frito-Lay’s
16
preemption argument was based on a misreading of the malic acid regulation.”
17
Def.s’ Mem. at 7:23-8:2. That regulation states as follows:
18
(a) Malic acid (C4H6O5, CAS Reg. No. of L-form 97-67-6, CAS Reg. No. of DL-form 617-48-1) is the common name for 1-hydroxy-1, 2ethanedicarboxylic acid. L ( + ) malic acid, referred to as L-malic acid, occurs naturally in various foods. Racemic DL-malic acid does not occur naturally. It is made commercially by hydration of fumaric acid or maleic acid.
19 20 21 22 23
21 C.F.R. § 184.1069(a). As this Court noted, the regulation identifies “two forms
24
of malic acid: L-malic acid, which ‘occurs naturally in various foods’ and DL-malic
25
acid, which does not.” Dkt. No. 26 at 6. Plaintiffs’ complaint alleges that Frito-Lay
26
uses the artificial form of DL- Malic Acid in the Product. Compl., ¶ 31. It is apparent
27
from the face of the malic acid regulation that the Court’s interpretation was correct.
28 6
Marron Decl., ¶ 8 & Ex. 6.
-5Allred v. Frito-Lay North America, Inc., et al., Case No. 3:17-cv-01345-JLS-BGS PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR RECONSIDERATION AND/OR CLARIFICATION
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1
Frito-Lay also argues that “Plaintiffs do not identify a single manufacturer
2
who does specify which type [of malic acid] is used.” Def.s’ Mem. at 9:11-12.
3
However, some manufactures do comply with the regulations and do specify which
4
type of malic acid is used. For example, the manufacturer of Runa Amazon Guayusa
5
Tea discloses that the product contains “L-Malic Acid” as opposed to the artificial
6
D-L Malic Acid. See Marron Decl., ¶ 9 & Ex. 7. Because the Court correctly
7
interpreted the malic acid regulation, Frito-Lay’s Motion for Reconsideration should
8
be denied.
9
C. The Court correctly held that the continuing violation doctrine is an
10
exception to the statute of limitations
11
As a last-ditch effort, Frito-Lay argues that the continuing violation doctrine
12
is not an exception to the statute of limitations. Def.s’ Mem. at 9-12. However, the
13
Court correctly decided this issue by holding that “it would be inequitable to allow
14
Defendants to ‘obtain immunity’ from this violation ‘even for recent and ongoing
15
malfeasance.’” Dkt. No. 26 at 18. Frito-Lay misinterprets the holding in Hunter v.
16
Nature’s Way Prods., LLC, No. 16-cv-532, 2016 WL 4262188 (S.D. Cal. Aug. 12,
17
2016). In Hunter, the court held that “the continuing violation doctrine provides an
18
exception to the statutes of limitations for the FAL, UCL, CLRA, and breach of
19
warranty claims[.]” Id. at *12. The Hunter court held that the plaintiff could assert
20
claims arising “over the course of the approximately five years that Plaintiff Levin
21
continued to purchase the Extra Virgin Coconut Oil.” Id. The same result should be
22
reached here because “Plaintiffs purchased the Product multiple times annually since
23
at least 2012 or earlier.” Compl., ¶ 69. Plaintiffs seek to represent a class consisting
24
of “[a]ll consumers who purchased the Product from a retailer within the state of
25
California for personal, family, or household purposes, and not for resale, at any time
26
during the period six (6) years prior to the filing of this Complaint.” Compl., ¶ 82.
27
Six year prior to the filing of the complaint would be May 11, 2012, which is
28 -6Allred v. Frito-Lay North America, Inc., et al., Case No. 3:17-cv-01345-JLS-BGS PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR RECONSIDERATION AND/OR CLARIFICATION
Case 3:17-cv-01345-JLS-BGS Document 38 Filed 05/09/18 PageID.772 Page 8 of 8
1
consistent with the continuing violation exception to the statute of limitations.
2
Therefore, the Court should decline to provide clarification to its Order.
3
IV.
CONCLUSION
4
For the reasons set forth herein, Plaintiffs respectfully request that the Court
5
deny Defendant’s Motion for Reconsideration in its entirety. If the Court is inclined
6
to dismiss any portion of the complaint, Plaintiffs respectfully request leave to
7
amend. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
8 9 10
Dated:
May 9, 2018
Respectfully submitted,
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
/s/ Ronald A. Marron Ronald A. Marron LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON MICHAEL HOUCHIN 651 Arroyo Drive San Diego, California 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 LAW OFFICE OF DAVID ELLIOT DAVID ELLIOT (SBN 270381) [email protected] 2028 3rd Avenue San Diego, CA 92101 Telephone: (858) 228-7997 Attorneys for Plaintiffs and the Proposed Class
27 28 -7Allred v. Frito-Lay North America, Inc., et al., Case No. 3:17-cv-01345-JLS-BGS PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR RECONSIDERATION AND/OR CLARIFICATION
1 2 3 4 5 6 7 8 9
LAW OFFICES OF RONALD A. MARRON RONALD A. MARRON (SBN 175650) [email protected] MICHAEL T. HOUCHIN (SBN 305541) [email protected] 651 Arroyo Drive San Diego, California 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 LAW OFFICE OF DAVID ELLIOT DAVID ELLIOT (SBN 270381) [email protected] 2028 3rd Avenue San Diego, CA 92101 Telephone: (858) 228-7997 Attorneys for Plaintiffs and the Proposed Class
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA BARRY ALLRED and MANDY C. ALLRED, on behalf of themselves, all others similarly situated, and the general public,
) Case No. 3:17-cv-01345-JLS-BGS ) ) CLASS ACTION ) ) Plaintiffs, MEMORANDUM ) PLAINTIFFS’ OF POINTS AND AUTHORITIES ) IN SUPPORT OF THEIR ) OPPOSITION TO DEFENDANTS’ vs. ) MOTION FOR ) RECONSIDERATION AND/OR ) CLARIFICATION FRITO-LAY NORTH AMERICA, INC., ) a Delaware Corporation, and FRITO) LAY, INC., a Delaware Corporation, ) ) Date: June 21, 2018 ) Time: 1:30 PM Defendants. ) Judge: Hon. Janis L. Sammartino ) Ctrm: 4D ) ) ) ) )
27 28 -1Allred v. Frito-Lay North America, Inc., et al., Case No. 3:17-cv-01345-JLS-BGS PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR RECONSIDERATION AND/OR CLARIFICATION
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1
Plaintiffs Barry Allred and Mandy C. Allred (collectively “Plaintiffs”), on
2
behalf of themselves, all others similarly situated, and the general public,
3
respectfully submit this Memorandum of Points and Authorities in Opposition to
4
Defendants Frito-Lay North America, Inc.’s and Frito-Lay, Inc.’s (“Defendants” or
5
“Frito-Lay”) Motion for Reconsideration and/or Clarification that was filed on April
6
4, 2018. See ECF No. 29.
7
I.
INTRODUCTION
8
Reconsideration is an “extraordinary remedy to be used sparingly in the
9
interests of finality and conservation of judicial resources.” Kona Enters., Inc. v.
10
Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). Through its Motion, Frito-Lay
11
seeks reconsideration of the Court’s March 7, 2018 Order Denying Defendants’
12
Motion to Dismiss. See Dkt. No. 26. Frito-Lay argues that (1.) “new circumstances
13
exist and confirm that Plaintiffs’ malic acid allegations are speculative and
14
implausible,” (2.) “The Court’s ingredient list disclosure ruling misreads the malic
15
acid regulation,” and that (3.) “The Court should clarify that the continuous accrual
16
doctrine does not authorize claims based on purchases outside the limitations
17
period.” None of these arguments are convincing and Frito-Lay fails to introduce
18
any new facts that are pertinent to the present matter. Indeed, the only “new
19
evidence” that Frito-Lay relies upon are class action complaints that similarly allege
20
that malic acid is an artificial flavoring ingredient that should be conspicuously
21
disclosed as such on the product packaging.
22
Defendants’ Motion to Dismiss was not clearly erroneous. In fact, the Court’s Order
23
is consistent with the results that were reached in a similar class action that is pending
24
in this District. See Allred v. Kellogg Co., No. 17-CV-1354-AJB-BLM, 2018 WL
25
1158885, at *1 (S.D. Cal. Feb. 23, 2018) (“Kellogg”). For the reasons set forth
26
below, Plaintiffs respectfully request that the Court deny Defendants' Motion in its
27
entirety.
The Court’s Order Denying
28 -1Allred v. Frito-Lay North America, Inc., et al., Case No. 3:17-cv-01345-JLS-BGS PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR RECONSIDERATION AND/OR CLARIFICATION
Case 3:17-cv-01345-JLS-BGS Document 38 Filed 05/09/18 PageID.767 Page 3 of 8
1
II.
LEGAL STANDARD
2
“In the Southern District of California, a party may apply for reconsideration
3
‘[w]henever any motion or any application or petition for any order or other relief
4
has been made to any judge and has been refused in whole or in part.’” Arellano v.
5
San Diego Cty., No. 14-CV-2404 JLS (KSC), 2018 WL 1851331, at *2 (S.D. Cal.
6
Apr. 17, 2018) (citing Civ. Local R. 7.1(i)(1)). However, “a motion for
7
reconsideration should not be granted, absent highly unusual circumstances, unless
8
the district court is presented with newly discovered evidence, committed clear error,
9
or if there is an intervening change in the controlling law.” Marlyn Natraceuticals,
10
Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009). This is
11
because “[r]econsideration is an ‘extraordinary remedy, to be used sparingly in the
12
interests of finality and conservation of judicial resources.’” Arellano, 2018 WL
13
1851331, at *2 (quoting Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890
14
(9th Cir. 2000)). “Ultimately, whether to grant or deny a motion for reconsideration
15
is in the ‘sound discretion’ of the district court.” Id. (citing Navajo Nation v. Norris,
16
331 F.3d 1041, 1046 (9th Cir. 2003)). A party “may not raise new arguments or
17
present new evidence if it could have reasonably raised them earlier.” Id. (citing
18
Kona Enters., 229 F.3d at 890). Moreover, “[t]here is no requirement that reasons
19
be stated for the denial of a motion for reconsideration[.]” Ramser v. Laielli, No. 15-
20
CV-2018-CAB-DHB, 2017 WL 3524879, at *1 (S.D. Cal. Aug. 15, 2017) (quoting
21
Briddle v. Scott, 63 F.3d 364, 381 (5th Cir. 1995)).
22
III.
ARGUMENT
23
A. Plaintiffs’ malic acid claims are not speculative nor are they implausible
24
Frito-Lay argues that new class action complaints that have been filed alleging
25
that malic acid is an artificial flavoring ingredient constitute “new circumstances”
26
that Plaintiffs’ allegations are implausible as a matter of law. Def.s’ Mem. at 3.
27
However, this Court correctly held that whether malic acid functions as a flavoring
28
ingredient in the Lay’s Salt & Vinegar flavored Potato Chips is “a factual -2Allred v. Frito-Lay North America, Inc., et al., Case No. 3:17-cv-01345-JLS-BGS PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR RECONSIDERATION AND/OR CLARIFICATION
Case 3:17-cv-01345-JLS-BGS Document 38 Filed 05/09/18 PageID.768 Page 4 of 8
1
determination that would be inappropriately resolved on a motion to dismiss.” See
2
Dkt. No. 26 at 9 (citing Engurasoff v. Coca-Cola Co., No. C 13-03990 JSW, 2014
3
WL 4145409, at *3-4 (N.D. Cal. Aug. 21, 2014) (finding that the federal regulations
4
“are insufficient to insert a requirement that all artificial flavors, by definition, must
5
impart a characteristic taste and/or aroma” and finding “it cannot make a factual
6
determination upon a motion to dismiss as to whether phosphoric acid qualifies as
7
an artificial flavor”); Gitson v. Trader Joe’s Co., No. 13-CV-01333-WHO, 2014 WL
8
1048640, at *4 (N.D. Cal. Mar. 14, 2014) (“At the pleading stage I cannot second
9
guess the truth of the plaintiffs' allegations that the identified ingredients function as
10
artificial flavors....”); Ivie v. Kraft Foods Global, Inc., No. 12–cv–2554 RMW, 2013
11
WL 685372, at *10 (N.D. Cal. Feb. 25, 2013) (“[T]he factual determinations of
12
whether [the ingredients are] used as a sweetener and/or ... a flavoring agent in this
13
particular product, and whether a reasonable consumer would have thus been misled
14
by the ‘no artificial sweeteners or preservatives’ label, are inappropriate for
15
determination on a motion to dismiss.”). The court in Kellogg also similarly held
16
that “[a]t this stage, the Court cannot look beyond the pleadings and must take
17
reasonable allegations as true” and that “Allred has sufficiently pled the ingredients
18
are artificial and used as flavoring agents.” Kellogg, 2018 WL 1158885, at *2. The
19
Court’s Order was not clearly erroneous as a matter of law.
20
Frito-Lay further contends that “Plaintiffs cannot plausibly contend that malic
21
acid is a sort of ‘super flavor,’ able to impart any and all flavors in the world—
22
particularly in the absence of any supporting facts.” Def.s’ Mem. at 5:12-14.
23
However, Plaintiffs’ complaint plausibly alleges that the artificial malic acid that is
24
placed in the Product is used “to simulate the sour flavor of vinegar.” Compl., ¶ 33.
25
Indeed, Frito-Lays’s own product label shows that the artificial malic acid is a part
26
of “salt & vinegar seasoning” containing “maltodextrin [made from corn], natural
27
flavors, salt, malic acid, vinegar.” Compl., ¶ 20. Plaintiffs allege that the artificial
28
malic acid is used to deliver a “tart” and “persistent sour” flavor. Compl., ¶ 32. -3Allred v. Frito-Lay North America, Inc., et al., Case No. 3:17-cv-01345-JLS-BGS PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR RECONSIDERATION AND/OR CLARIFICATION
Case 3:17-cv-01345-JLS-BGS Document 38 Filed 05/09/18 PageID.769 Page 5 of 8
Plaintiffs’ allegations are not only plausible, they are common knowledge in
1 2
Frito-Lay’s own industry. For example, industry sources state the following:
3 4
“Salt and vinegar flavored potato chips [] use [malic acid] to
5
produce a tart, vinegar-like flavor.”
6
Source: IHC Chempharm Company, Malic acid1
7 8
“It [malic acid] is also used with or in place of the less sour citric
9
acid in [] Salt & Vinegar flavor potato chips.”
10
Source: Chemco Chemical Company, Malic acid2
11 12
“Salt and vinegar flavored chips use malic acid to produce that
13
appealing tart taste.”
14
Source: Bell Chem Corp., “Malic acid and its many uses.”3
15 16
“Malic Acid . . . is used to give a tart taste to beverages.”
17 Source: Coca Cola Company, malic acid.4
18 19 20
“Malic Acid: We use this ingredient in products where a tart taste
21
is expected[.]”
22
Source: Campbell Soup Company, “What’s in my food?” (malic acid).5
23 24 25 26 27 28
See Declaration of Ronald A. Marron in Support of Plaintiffs’ concurrently-filed Request for Judicial Notice (“Marron Decl.”), ¶ 3 & Ex. 1. 2 Marron Decl., ¶ 4 & Ex. 2. 3 Marron Decl., ¶ 5 & Ex. 3. 4 Marron Decl., ¶ 6 & Ex. 4. 5 Marron Decl., ¶ 7 & Ex. 5. -4Allred v. Frito-Lay North America, Inc., et al., Case No. 3:17-cv-01345-JLS-BGS PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR RECONSIDERATION AND/OR CLARIFICATION 1
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1
“Without malic acid, the signature tartness of salt and vinegar chips
2
wouldn't be quite as tart, the extreme sourness of warheads would be
3
miniscule, and the fruit flavors in gum wouldn't be nearly as fruity.”
4 5
Source: Nuts.com6 When ruling on a motion to dismiss for failure to state a claim upon which
6
relief can be granted, the court accepts “allegations in the complaint as true and
7
construe the pleadings in the light most favorable to the nonmoving party.” Knievel
8
v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). Indeed, “a well-pleaded complaint
9
may proceed even if it strikes a savvy judge that actual proof of those facts is
10
improbable, and ‘that a recovery is very remote and unlikely.’” Bell Atl. Corp. v.
11
Twombly, 550 U.S. 544, 556 (2007) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236
12
(1974)). Because the allegations in Plaintiffs’ complaint rise above the speculative
13
level, Frito-Lay’s Motion for Reconsideration should be denied.
14
B. The Court correctly interpreted the malic acid regulation
15
Frito-Lay next argues that “the Court’s decision rejecting Frito-Lay’s
16
preemption argument was based on a misreading of the malic acid regulation.”
17
Def.s’ Mem. at 7:23-8:2. That regulation states as follows:
18
(a) Malic acid (C4H6O5, CAS Reg. No. of L-form 97-67-6, CAS Reg. No. of DL-form 617-48-1) is the common name for 1-hydroxy-1, 2ethanedicarboxylic acid. L ( + ) malic acid, referred to as L-malic acid, occurs naturally in various foods. Racemic DL-malic acid does not occur naturally. It is made commercially by hydration of fumaric acid or maleic acid.
19 20 21 22 23
21 C.F.R. § 184.1069(a). As this Court noted, the regulation identifies “two forms
24
of malic acid: L-malic acid, which ‘occurs naturally in various foods’ and DL-malic
25
acid, which does not.” Dkt. No. 26 at 6. Plaintiffs’ complaint alleges that Frito-Lay
26
uses the artificial form of DL- Malic Acid in the Product. Compl., ¶ 31. It is apparent
27
from the face of the malic acid regulation that the Court’s interpretation was correct.
28 6
Marron Decl., ¶ 8 & Ex. 6.
-5Allred v. Frito-Lay North America, Inc., et al., Case No. 3:17-cv-01345-JLS-BGS PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR RECONSIDERATION AND/OR CLARIFICATION
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1
Frito-Lay also argues that “Plaintiffs do not identify a single manufacturer
2
who does specify which type [of malic acid] is used.” Def.s’ Mem. at 9:11-12.
3
However, some manufactures do comply with the regulations and do specify which
4
type of malic acid is used. For example, the manufacturer of Runa Amazon Guayusa
5
Tea discloses that the product contains “L-Malic Acid” as opposed to the artificial
6
D-L Malic Acid. See Marron Decl., ¶ 9 & Ex. 7. Because the Court correctly
7
interpreted the malic acid regulation, Frito-Lay’s Motion for Reconsideration should
8
be denied.
9
C. The Court correctly held that the continuing violation doctrine is an
10
exception to the statute of limitations
11
As a last-ditch effort, Frito-Lay argues that the continuing violation doctrine
12
is not an exception to the statute of limitations. Def.s’ Mem. at 9-12. However, the
13
Court correctly decided this issue by holding that “it would be inequitable to allow
14
Defendants to ‘obtain immunity’ from this violation ‘even for recent and ongoing
15
malfeasance.’” Dkt. No. 26 at 18. Frito-Lay misinterprets the holding in Hunter v.
16
Nature’s Way Prods., LLC, No. 16-cv-532, 2016 WL 4262188 (S.D. Cal. Aug. 12,
17
2016). In Hunter, the court held that “the continuing violation doctrine provides an
18
exception to the statutes of limitations for the FAL, UCL, CLRA, and breach of
19
warranty claims[.]” Id. at *12. The Hunter court held that the plaintiff could assert
20
claims arising “over the course of the approximately five years that Plaintiff Levin
21
continued to purchase the Extra Virgin Coconut Oil.” Id. The same result should be
22
reached here because “Plaintiffs purchased the Product multiple times annually since
23
at least 2012 or earlier.” Compl., ¶ 69. Plaintiffs seek to represent a class consisting
24
of “[a]ll consumers who purchased the Product from a retailer within the state of
25
California for personal, family, or household purposes, and not for resale, at any time
26
during the period six (6) years prior to the filing of this Complaint.” Compl., ¶ 82.
27
Six year prior to the filing of the complaint would be May 11, 2012, which is
28 -6Allred v. Frito-Lay North America, Inc., et al., Case No. 3:17-cv-01345-JLS-BGS PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR RECONSIDERATION AND/OR CLARIFICATION
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1
consistent with the continuing violation exception to the statute of limitations.
2
Therefore, the Court should decline to provide clarification to its Order.
3
IV.
CONCLUSION
4
For the reasons set forth herein, Plaintiffs respectfully request that the Court
5
deny Defendant’s Motion for Reconsideration in its entirety. If the Court is inclined
6
to dismiss any portion of the complaint, Plaintiffs respectfully request leave to
7
amend. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
8 9 10
Dated:
May 9, 2018
Respectfully submitted,
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
/s/ Ronald A. Marron Ronald A. Marron LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON MICHAEL HOUCHIN 651 Arroyo Drive San Diego, California 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 LAW OFFICE OF DAVID ELLIOT DAVID ELLIOT (SBN 270381) [email protected] 2028 3rd Avenue San Diego, CA 92101 Telephone: (858) 228-7997 Attorneys for Plaintiffs and the Proposed Class
27 28 -7Allred v. Frito-Lay North America, Inc., et al., Case No. 3:17-cv-01345-JLS-BGS PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR RECONSIDERATION AND/OR CLARIFICATION
