mot to dismiss larsen v trader joe's

7/28/2019 Mot to Dismiss Larsen v Trader Joe's

1/34

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

TRADER JOES MOT. TO DISMISS SAC

CV-11-5188-SI

CARLA CHRISTOFFERSON (S.B. #161111)[email protected] A. MOESER (S.B. #253177)[email protected] IDES (S.B. # 274820)[email protected] & MYERS LLP400 South Hope StreetLos Angeles, CA 90071-2899Telephone: (213) 430-6000Facsimile: (213) 430-6407

RANDALL W. EDWARDS (S.B. #179053)[email protected] & MYERS LLPTwo Embarcadero Center, 28th FloorSan Francisco, CA 94111-3823Telephone: (415) 984-8700Facsimile: (415) 984-8701

Attorneys for DefendantTrader Joes Company

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

TAMAR DAVIS LARSEN ANDARAN EISENSTAT,

Plaintiffs,

v.

TRADER JOES COMPANY,

Defendant.

Case No. CV-11-5188-SI

DEFENDANT TRADER JOESCOMPANYS NOTICE OF MOTIONAND MOTION TO DISMISSPLAINTIFFS SECOND AMENDEDCOMPLAINT PURSUANT TO FED.R. CIV. P. 12(b)(1), 12(b)(6) AND12(f); MEMORANDUM OF POINTSAND AUTHORITIES

Hearing Date: June 15, 2012Hearting Time: 9:00 a.m.

Judge: Honorable Susan Illston

Complaint Filed: October 24, 2011Trial Date: None set

Case3:11-cv-05188-SI Document38 Filed04/20/12 Page1 of 31


2/34

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

TABLE OF CONTENTS

Page

-i-

TRADER JOES MOT.TO DISMISS SACCV-11-5188-S

NOTICE OF MOTION AND MOTION ........................................................1

MEMORANDUM OF POINTS AND AUTHORITIES ................................2

I. INTRODUCTION...........................................................................................2II. BACKGROUND.............................................................................................3

III. ARGUMENT ..................................................................................................5

A. The Legal Standard ...............................................................................5

B. The Magnuson-Moss Warranty Act Claim Fails BecausePlaintiffs Have Not Alleged an Actionable Written Warranty.............6

C. Plaintiffs Lack Article III Standing to Seek Injunctive Relief ...........10

D. The Court Should Dismiss the CLRA Damages Claims as toFive Products for Which Plaintiffs Failed to Send the Required

Pre-Litigation Notice...........................................................................12E. Plaintiffs Cannot Bring Claims Related to Products They DidNot Purchase. ......................................................................................14

F. There is No Claim for Unjust Enrichment in California. ...................17

IV. CONCLUSION .............................................................................................18



3/34

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

TABLE OF AUTHORITIES

Page

-i-

TRADER JOES MOT. TO DISMISS SACCV-11-5188-S

CASES

Ashcroft v. Iqbal,

129 S. Ct. 1937 (2009) ......................................................................................... 6

Bell Atlantic Corp. v. Twombly,550 U.S. 544 (2007) .............................................................................................6

Birdsong v. Apple, Inc.,

590 F.3d 955 (9th Cir. 2009) ..............................................................................15

Boyter v. Wells Fargo Bank, N.A.,

Case No. C 11-03943 SI, 2012 WL 1144281 (N.D. Cal. Apr. 4, 2012)............18

Campion v. Old Home Republic Home Protection Co.,

Case No. 09-cv-748-JMA,

2012 WL 992104 (S.D. Cal., Mar. 23, 2012)........................................10, 11, 12

Carrea v. Dreyers Grand Ice Cream, Inc.,

Case No. C 10-01044, 2011 WL 159380 (N.D. Cal. Jan. 10, 2011) .................15

Cattie v. Wal-Mart Stores, Inc.,

504 F. Supp. 2d 939 (S.D. Cal. 2007) ..............................................10, 12, 13, 14

Charles Schwab & Co. v. Bank of Am.,

No. C-10-4913-JL, 2011 WL 1753805 (N.D. Cal. May 9, 2011)................17, 18

Chavez v. Blue Sky Natural Beverage Co.,

340 Fed. Appx. 359 (9th Cir. 2009) ...................................................................16

Clear Channel Outdoor, Inc. v. Bently Holdings California LP,

Case No. C112573 EMC, WL 6099394 (N.D .Cal. Dec. 7, 2011) ................18

Davis v. Chase Bank U.S.A., N.A.,650 F. Supp. 2d 1073 (C.D. Cal. 2009)..................................................12, 13, 14

Daimler Chrysler Corp. v. Cuno,

547 U.S. 332 (2006) ...........................................................................................14



4/34

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

TABLE OF AUTHORITIES(continued)

Page

-ii-


Dietz v. Comcast Corp.,

Case No. C 06-06352 WHA (N.D. Cal., Dec. 21, 2006) .............................10, 11

Fantasy, Inc. v. Fogerty,

984 F.2d 1524 (9th Cir. 1993) ..............................................................................6

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc,528 U.S. 167 (2006) ...........................................................................................14

Gest v. Bradbury,

443 F.3d 1177 (9th Cir. 2006) ..............................................................................6

In re Actimmune Mktg. Litig.,No. C-08-023786, 2009 WL 3740648 (N.D. Cal. Nov. 6, 2009) ......................16

In re GlenFed, Inc., Sec. Litig.,42 F.3d 1541 (9th Cir. 1994) ..............................................................................17

In re Sears, Roebuck & Co. Tools Mktg. and SalesMDL No. 1703, 2012 WL 2011 1015806

(N.D. Ill. March 22, 2012)............................................................................7, 8, 9

Janda v. T-Mobile, USA, Inc.,

Case No. C 05-03729,

2008 WL 4847116 (N.D. Cal. Nov. 7, 2008)..................................10, 11, 12, 13

Jogani v. Superior Court,

165 Cal. App. 4th 901 (2008).............................................................................17

Johns v. Bayer Corp.,Case No. 09CV1935, 2010 WL 476688 (S.D. Cal. Feb. 9, 2010).....................14

Kearns v. Ford Motor Co.,

567 F.3d 1120 (9th Cir. 2009) ............................................................................17

Keilholtz v. Superior Fireplace Co.,

Case No. C 08-00836, 2009 WL 839076 (N.D. Cal. Mar. 30, 2009) ................13

Kelly v. Microsoft Corp.,

Case No. C07-0475MJP, 2007 WL 2600841 (W.D. Wash. Sept. 10, 2007)...8, 9



5/34

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28


Page

-iii-


Kwikset Corp. v. Superior Court,

51 Cal. 4th 310 (2011)..........................................................................5, 6, 15, 16

Laster v. T-Mobile USA, Inc.,

407 F. Supp. 2d 1181 (S.D. Cal. 2005) ..............................................................13

Levine v. Blue Shield of Cal.,

189 Cal. App. 4th 1117 (2010) ...........................................................................17

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ...................................................................................... 5, 14

McKell v. Wash. Mut., Inc.,142 Cal. App. 4th 1457 (2006) ...........................................................................17

Melchior v. New Line Prods., Inc.,

106 Cal. App. 4th 779 (2003).............................................................................17

Meyer v. Sprint Spectrum, L.P.45 Cal. 4th 634 (2009)........................................................................................15

Mlejnecky v. Olympus Imaging,

Case No. 2:10-cv-02630 JAM KJN,

2011 WL 1497096 (E.D. Cal. Apr. 19, 2011) ....................................................15

Outboard Marine Corp. v. Superior Court,

52 Cal. App. 3d 30 (1975)......................................................................................

Oregon v. Legal Servs. Corp,

552 F. 3d 965 (9th Cir. 2009).................................................................................

Pfizer, Inc. v. Superior Court,

182 Cal. App. 4th 622 (2010).............................................................................16

Skelton v. General Motors Corp.,500 F. Supp. 1181 (N.D. Ill. 1980)...................................................................8, 9

Smith v. Ford Motor Company,

Case No. 10-17321, 2011 WL 6322200 (9th Cir. Dec. 19, 2011) .....................17



6/34

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28


Page

-iv-


South Tahoe Gas Co. v. Hofmann Land Improvement Co.,

25 Cal. App. 3d 750 (1972) ................................................................................16

Stearns v. Select Comfort Retail Corp.,

Case No. 08-2746, 2009 WL 1635931 (N.D. Cal. June 5, 2009) ......................12

Stickrath v. Globalstar, Inc.,527 F. Supp. 2d 992 (N.D. Cal. 2007)................................................................12

Van Buskirk v. Cable News Network, Inc.,

284 F.3d 977 (9th Cir. 2002) ..........................................................................5, 13

Vess v. Ciba-Geigy Corp. USA,317 F.3d 1097 (9th Cir. 2003)............................................................................16

Walsh v. Nevada Department of Human Resources,417 F.3d 1033 (9th Cir. 2006)............................................................................10

Wang v. OCZ Technology Group, Inc.,276 F.R.D. 618 (N.D. Cal. 2011) .................................................................11, 15

Western Min. Council v. Watt,

643 F.2d 618 (9th Cir. 1981) ................................................................................6

STATUTES

15 U.S.C. 2301, et seq. ........................................................................................ 6

15 U.S.C. 2310(d)(1). ..........................................................................................7

Cal. Bus. & Prof. Code 17200, et seq...................................................................5

Cal. Bus. & Prof. Code 17500, et seq...................................................................5

Cal. Civ. Code 1750, et seq. .................................................................................5

Cal. Civ. Code 1780(a) .........................................................................................15

Cal. Civ. Code 1782..........................................................................................1, 12



7/34

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28


Page

-v-


OTHER AUTHORITIES

16 C.F.R. 700.3....................................................................................................... 7

Fed. R. Civ. P. 9(b) ................................................................................................1, 6

Fed. R. Civ. P. 12(b)(1) .....................................................................................1, 3, 5

Fed. R. Civ. P. 12(b)(6) .....................................................................................1, 3, 5

Fed. R. Civ. P. 12(f)...........................................................................................2, 3, 6



8/34

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

- 1 - TRADER JOES MOT. TO DISMISS SACCV-11-5188-SI

NOTICE OF MOTION AND MOTION

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on June 15, 2012, at 9:00 a.m., or as soon

thereafter as this motion may be heard in the above-entitled court, located at 450

Golden Gate Ave., San Francisco, California, in Courtroom 10, 19th Floor,

Defendant Trader Joes Company will, and hereby does, move the Court for an

order dismissing certain causes of action set forth in the Class Action Complaint

filed by Tamar Davis Larsen and Aran Eisenstat or, in the alternative, striking

certain claims and remedies. Trader Joes Motion to Dismiss is made pursuant to

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The Motion is based on

this Notice of Motion and Motion, the accompanying Memorandum of Points and

Authorities, the entire file in this matter, and such other matters and argument as

may properly come before the Court.

In particular, Trader Joes seeks an order dismissing: (1) the first cause of

action for violation of the Magnuson-Moss Warranty Act because Plaintiffs have

failed to allege an actionable written warranty; (2) Plaintiffs claims for injunctive

relief because Plaintiffs cannot demonstrate Article III standing as a matter of law;(3) the seventh cause of action for damages pursuant to the Consumers Legal

Remedies Act, Cal. Civ. Code. 1782, as to particular products (Trader Joes

Jumbo Cinnamon Rolls, Trader Joes Buttermilk Biscuits, Trader Joes Crescent

Rolls, Trader Giottos 100% Natural Fat Free Ricotta Cheese, and Trader Joes

Fresh Pressed Apple Juice) because Plaintiffs failed to comply with the required

pre-suit notice provision; (4) all claims with respect to one product (Trader Joes

Crescent Rolls) because Plaintiffs lack standing regarding that product and also

failed to plead the elements with the required specificity under Rule 9(b); and (5)

the eighth cause of action for unjust enrichment because California law recognizes

no such cause of action.



9/34

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28


Alternatively, Trader Joes seeks an order under Rule 12(f) striking the

request for injunctive relief based on a lack of standing, the CLRA damages claim

for the identified products, and all claims as to Trader Joes Crescent Rolls.

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTIONPlaintiffs Second Amended Complaint (SAC) is improperly over-pled,

including a product that they did not buy, products for which they did not give the

required pre-suit notice before seeking damages under the Consumers Legal

Remedies Act, an injunctive relief claim not justified by any likelihood of future

harm to them, a federal breach of warranty claim where the food products did not

come with a warranty, and even a claim that most courts do not recognize as an

independent cause of action. A dismissal order is therefore warranted at the

pleading stage to strip the SAC of deficient and otherwise improper claims.

Plaintiffs cannot meet the requirements to state any claim under the

Magnuson-Moss Warranty Act. Plaintiffs alleged that Trader Joes labels constitute

a written warranty, but the All Natural or 100% Natural assertion is simply not

a warranty as defined under the Act. Plaintiffs also cannot state a claim forinjunctive relief because they cannot demonstrate any likelihood of future harm and

therefore have no standing under Article III. Furthermore, Plaintiffs cannot

maintain a claim for damages under the CLRA with respect to several products

wherethe pleadings confirm that Plaintiffs did not send Trader Joes the legally-

required pre-lawsuit CLRA notice letter. Plaintiffs failure to comply with the

CLRA notice requirements in a timely way undermined the purpose the warning

requirement and, under the case law, warrants dismissal of the CLRA damages

claims with respect to those products.

In addition, Plaintiffs cannot maintain a claim related to a product that

neither of them purchased. This was no mere oversight in pleading. Plaintiffs

initially sued Trader Joes regarding allegedly misleading labels on eight products,



10/34

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28


but Plaintiffs original Complaint, did not even allege that they purchased five of

those products. See Complaint, D.E. 1. In the face of Trader Joes motion to

dismiss asserting, among other things, Plaintiffs lack of standing on the other

products, Plaintiffs amended their complaint (and later amended again). In the

SAC, Plaintiffs dropped their allegations related to Trader Joes Fruit Jellies, but

Plaintiff Larsen now alleges to suddenly remember purchasing several more of the

products that had been identified in the original complaint with no allegation of any

purchase by either Plaintiff. SAC 6. But even with the convenient memory gain

alleged in the SAC, Plaintiffs still do not allege that either of them purchased

Trader Joes Crescent Rolls. As such, any claim with respect to that product fails

for lack of standing and also for failure to plead required elements with required

specificity.

Finally, Plaintiffs cannot state an independent claim for unjust enrichment

because California law does not recognize such an independent cause of action.

Trader Joes believes that a motion to dismiss under Rules 12(b)(1) and

12(b)(6) is the appropriate vehicle to challenge the deficient claims for injunctive

relief, CLRA damages on certain products, and all claims with respect to CrescentRolls. However, in the alternative, Trader Joes moves to strike those allegations

under Rule 12(f).

II. BACKGROUNDPlaintiffs allege that Trader Joes labels certain food products as All

Natural or 100% Natural and that this labeling misleads consumers because the

food products contain one or more allegedly synthetic ingredients. See SAC

1-2. In the SAC, Plaintiffs allege that seven products have been misleadingly

marketed: Joe-Joes Chocolate Vanilla Crme Cookies, Joe-Joes Chocolate

Sandwich Cream Cookies, Trader Joes Jumbo Cinnamon Rolls, Trader Joes

Buttermilk Biscuits, Trader Joes Crescent Rolls, Trader Giottos 100% Natural Fat

Free Ricotta Cheese, and Trader Joes Fresh Pressed Apple Juice. These products



11/34

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28


allegedly are labeled All Natural or 100% Natural and contain one of more of

the following allegedly synthetic ingredients: ascorbic acid; cocoa processed with

alkali; sodium acid pyrophosphate; sodium citrate; xanthan gum; or vegetable

mono- and diglycerides. SAC 1-2, 39. Plaintiffs admit that the labels on each

product expressly disclosed the specific ingredients contained in the product.

Plaintiffs nonetheless assert that the labels are still misleading because these

ingredients are not specifically identified as synthetic or artificial. SAC 69.

Plaintiffs alleged in their original complaint that they had purchased just

three of the products (Joe-Joes Chocolate Sandwich Cream Cookies, Joe-Joes

Vanilla Crme Cookies, and Trader Joes Fresh Pressed Apple Juice). After Trader

Joes filed a motion to dismiss challenging their standing to assert claims related to

other products, Plaintiffs filed a First Amended Complaint, and later the SAC. In

the amended complaints, they now assert that they recall purchasing six of the

products discussed in their complaint -- although they continue not to allege that

either of them purchased Trader Joes Crescent Rolls, despite the fact that they

discussed the product in the SAC and it appears to be a product as to which claims

are asserted against Trader Joes. See SAC 39.Plaintiff Larsen alleges she purchased one box of Joe-Joes Chocolate

Vanilla Crme Cookies about once every four months through the class period and

three containers of Trader Joes Fresh Pressed Apple Juice in the last year; she also

alleges she now recalls that she purchase Joe-Joes Chocolate Sandwich Cream

Cookies slightly more often than Joe-Joes Chocolate Vanilla Crme Cookies, and

that over the past three years she purchased three packages of Trader Joes Jumbo

Cinnamon Rolls, two packages of Trader Joes Buttermilk Biscuits, and four

packages of Trader Giottos 100% Natural Fat Free Ricotta. SAC 6. Plaintiff

Larsen claims that these products were labeled All Natural or 100% Natural but

contained allegedly synthetic ingredients. Plaintiff Eisenstat claims that he

purchased Joe-Joes Chocolate Sandwich Cream Cookies at least five times during



12/34

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28


the class period. SAC 8. He asserts that this product was labeled All Natural

but contained the allegedly synthetic ingredient cocoa processed with alkali. Id.

Plaintiffs original complaint alleges that they sent a pre-lawsuit notice letter

to Trader Joes, pursuant to the CLRA, identifying concerns and seeking remedies.

That letter, which is referenced in the complaint, refers only to Joe-Joes Cookies.1

See Exhibit A. Plaintiffs nonetheless sought damages under the CLRA as to all

products identified in the complaint. The SAC is somewhat more vague in its

allegations about the pre-suit notice letter, but it does not allege that Plaintiffs

properly provided notice to Trader Joes regarding any product other than Joe-Joes

cookies before seeking damages under the CLRA.

In the SAC, Plaintiffs assert causes of action for common-law fraud and

unjust enrichment, as well as violations of the Magnuson-Moss Warranty Act, the

CLRA, Cal. Civ. Code 1750 et seq.; the unfair, unlawful, and fraudulent prongs

of the Unfair Competition Law, Cal. Bus. & Prof. Code 17200 et seq. (UCL);

and the False Advertising Law, Cal. Bus. & Prof. Code 17500 et seq. (FAL).

Plaintiffs seek damages and injunctive relief under these claims.

III. ARGUMENTA. The Legal StandardDefendants may challenge a claim through a motion to dismiss when the

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

which relief can be granted. Fed. R. Civ. P. 12(b)(1), 12(b)(6). Article III of the

United States Constitution confers subject-matter jurisdiction only where there is an

actual case or controversy, which plaintiff must show by demonstrating that he

suffered an injury in fact. Lujan v. Defenders of Wildlife,504 U.S. 555, 560

(1992). Injury in fact is an invasion of a legally protected interest which is (a)

concrete and particularized and (b) actual or imminent, not conjectural or

1In assessing a motion to dismiss the Court may properly consider documents

attached to the complaint and documents referenced by the complaint. Van Buskirkv. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002).



13/34

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28


hypothetical. Id. (citations omitted); see also Kwikset Corp. v. Superior Court,

51 Cal. 4th 310, 322 (2011). In this context, particularized means that the injury

must affect the plaintiff in a personal and individual way. Lujan, 504 U.S. at 560

n.1. The plaintiff must also show that there is a casual connection between the

injury and the conduct that is fairly traceable to defendants challenged action and

that the injury is likely not merely speculative. Id. at 561 (citations omitted). If

the plaintiff cannot demonstrate injury in fact, the claim cannot stand.

The Court also should dismiss the complaint if it does not contain enough

facts to establish the elements of a claim and is plausible on its face. Bell Atlantic

Corp. v. Twombly,550 U.S. 544, 570 (2007). In assessing a motion to dismiss, the

Court need not accept conclusory allegations,Ashcroft v. Iqbal, 129 S. Ct. 1937,

1951 (2009), unreasonable inferences, or legal conclusions set out in the form of

factual allegations, Western Min. Council v. Watt,643 F.2d 618, 624 (9th Cir.

1981). In addition, fraud-based claims such as those at issue here must be pleaded

with particularly. Fed. R. Civ. P. 9(b).

Finally, under Rule 12(f), the Court may strike from a pleading an

insufficient defense or any redundant, immaterial, impertinent, or scandalousmatter. Fed. R. Civ. P. 12(f). The function of a 12(f) motion to strike is to avoid

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

dispensing with those issues prior to trial ... . Fantasy, Inc. v. Fogerty, 984 F.2d

1524, 1527 (9th Cir.1993) (marks, citation, and first alteration omitted), revd on

other grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994).

B. The Magnuson-Moss Warranty Act Claim Fails Because PlaintiffsHave Not Alleged an Actionable Written Warranty.

The Court should dismiss Plaintiffs first cause of action because Plaintiffs

have failed to allege an actionable written warranty under the Magnuson-Moss

Warranty Act, 15 U.S.C. 2301 et seq. (Magnuson-Moss). Magnuson-Moss

creates a federal cause of action for consumers who are damaged by a suppliers



14/34

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28


failure to comply with an obligation under a written warranty. 15 U.S.C. 2310

(d)(1). The crux of Plaintiffs Magnuson-Moss claim is that Trader Joes provided

written warranties when it labeled the products at issue All Natural or 100%

Natural, and that Trader Joes breached these written warranties by failing to

supply those products with only non-synthetic and non-artificial ingredients. SAC

63-64. Under the relevant law, however, product assertions such as All

Natural or 100% Natural do not constitute Magnuson-Moss written

warranties.

For a statement to constitute a written warranty under Magnuson-Moss, it

must affirm or promise that the nature of the material or workmanship of the

product at issue is defect free or that it will meet a specified level of

performance over a specified period of time. 15 U.S.C. 2301(6)(A) & (B); 16

C.F.R. 700.3 (A production information disclosure without a specified time

period to which the disclosure relates is []not a written warranty.).2

The

statements All Natural and 100% Naturalthe only statements at issue in the

SACdo not promise that Trader Joes Products are defect free, nor do they

promise that Trader Joes Products will meet a specified level of performance overa specified period of time.

First, Plaintiffs do not and cannot allege that Trader Joes promised that the

products at issue will meet a specified level of performance over a specified period

of time. The decision inIn re Sears, Roebuck & Co. Tools Mktg. and Sales

Practices Litig. is instructive and directly on point. MDL No. 1703, 2012 WL

2 Magnuson-Moss also defines a written warranty as:

. . . any undertaking in writing in connection with the sale by a supplier of a consumerproduction to refund, repair, replace, or take other remedial action with respect to suchproduct in the event that such product fails to meet the specifications set forth in theundertaking . . .

15 U.S.C. 2301(6)(B). This alternative definition of written warranty is not at issue here, asPlaintiffs do not contend that Trader Joes undertook, in writing, to take any remedial action withrespect to Trader Joes Products.



15/34

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28


1015806 (N.D. Ill. March 22, 2012). In Sears, the court rejected plaintiffs

argument that the Made in the USA designation on Craftsman tools was a

written warranty within the meaning of Magnuson-Moss. Id. at *2-4. The court

concluded that Made in the USA neither promises Craftsman tools are defect free

nor promises that the product will meet a specified level of performance over a

specified period of time. Id. Similarly, All Natural and 100% Natural do not

promise a specified level of performance. Rather, like the phrase Made in the

USA, which describes how Craftsman tools were manufactured, All Natural and

100% Natural describe how the products were made, not how they will perform

once purchased. Moreover, the statements plainly do not promise that any specified

level of performance that will be maintained for a specified period of time.

Plaintiffs do not even allege that that All Natural and 100% Natural imply any

specific duration of time. And the court in Sears expressly rejected an argument

that a statement like Made in the USA promises a lifetime level of performance

or otherwise specifies any period of time, as required by the plain language of

section 2301(6). All Natural and 100% Natural similarly cannot satisfy that

requirement.Other federal courts likewise have held that analogous statements do not

constitute written warranties within the meaning of Magnuson-Moss because they

do not contain a specified period of time. See e.g., Kelley v. Microsoft Corp.,

Case No. C07-0475MJP, 2007 WL 2600841, at *3-4 (W.D. Wash. Sept. 10, 2007)

(holding Windows Vista Capable is not actionable as written warranty under

section 2301(6) of Magnuson-Moss because it contains no temporal element);

Skelton v. Gen. Mtrs. Corp., 500 F. Supp. 1181, 1185 (N.D. Ill. 1980) (holding that

statement that certain vehicles would include THM 30 transmissions or

transmissions of similar quality or performance is not written warranty actionable

under Section 2301(6) of Magnuson-Moss because it is not limited in duration),

revd on other grounds, 660 F.2d 311 (7th Cir. 1981).



16/34

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28


Plaintiffs attempt to rectify this fatal deficiency by asserting that the All

Natural and 100% Natural statements intended to convey to purchasers[] a

written promise that the ingredients in the products were free of a particular type of

defect (i.e., that they were not synthetic or artificial). SAC 63. In essence,

Plaintiffs claim that any statement about a product constitutes a promise that the

product is defect free. Such a theory is unsupported by the case law or logic. If

such a theory were sufficient, the similar Magnuson-Moss allegations in Sears and

other cases would have survived, but they did not. See Sears, MDL No. 1703,

2012 WL 1015806; Kelley, Case No. C07-0475MJP, 2007 WL 2600841; Skelton,

500 F. Supp. 1181.

The rejection of such claims makes logical sense. Permitting Plaintiffs

theory would drastically expand coverage under Magnuson-Moss and allow any

consumer to bring a breach of written warranty claim for any statement made

regarding any product, essentially converting Magnuson-Moss into a federal false

advertising statute. It cannot be the case that every affirmative statement regarding

a product is transformed into a promise that the product is defect free with respect

to that statement. Plaintiffs espoused reading of Magnuson-Moss wouldimproperly read out the express requirement of section 2301(6) that a written

warranty must actually affirm or promise that the nature of a material or

workmanship of a product is defect free. See Skelton v. Gen. Motor Corp., 660

F.2d 311, 326, n.7 (7th Cir. 1981) (reasoning that the Magnuson-Moss authors may

have defined written warranty so as to exclude general descriptions of

consumer products or their components from the reach of the Act, since it would be

excessively cumbersome to impose the Acts disclosure rules on every

advertisement containing a description of a product or its component.).

Because the challenged All Natural or 100% Natural statements do not

constitute written warranties under section 2301(6) of Magnuson-Moss,

Plaintiffs claim for violation of the Act must fail.



17/34

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28


C. Plaintiffs Lack Article III Standing to Seek Injunctive Relief.Although Plaintiffs seek injunctive relief in the SAC ( 5), they cannot

establish the Article III standing necessary to pursue injunctive relief in federal

court. Plaintiffs have not and cannot allege facts showing a possibility they will be

harmed by the challenged products in the future, which courts have recognized is an

element required for standing.

To have standing to assert a claim for injunctive relief in federal court,

plaintiff must demonstrate that she is realistically threatened by a repetition of

[the violation]. Gest v. Bradbury, 443 F.3d 1177, 1181 (9th Cir. 2006); Campion

v. Old Republic Home Protection Co., Case No. 09-cv-748-JMA, 2012 WL

992104, at *6 (S.D. Cal., Mar. 23, 2012)(same). Where a plaintiffs claim is based

entirely on a past transaction, and a plaintiff has knowledge of the alleged

misconduct, courts have held that plaintiff as a matter of law, can not establish that

he is under any threat of suffering actual and imminent future harm and his claims

for injunctive relief fail. Campion, 2012 WL 992104, at *9; see also Walsh v.

Nevada Department of Human Resources, 471 F. 3d 1033, 1037 (9th Cir. 2006)

(finding that plaintiff lacked standing to sue for injunctive relief on behalf of classof employees where she was no longer an employee of the company and there was

no indication. . . that [plaintiff] has any interest in returning to work, so she

would not stand to benefit from an injunction . . . .);Dietz v. Comcast Corp.,

Case No. C 06-06352 WHA, 2006 WL 3782902, at *3 (N.D. Cal. Dec. 21, 2006)

(holding that plaintiff lacked standing to bring his claims for injunctive relief under

the UCL and CLRA where he had already cancelled his cable service and had not

expressed an intention to use the cable provider again); Cattie v. Wal-Mart Stores,

Inc., 504 F. Supp. 2d 939, 951-52 (S.D. Cal. 2007) (expressing concern[] that

Plaintiff may lack standing to seek injunctive or declaratory relief under the CLRA

or any other statute where plaintiff had already purchased the product and there

was no suggestion that she intended to buy the product again in the future);Janda



18/34

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28


v. T-Mobile, USA, Inc., No. C 05-03720 JSW, 2008 WL 4847116, at *4 (N.D. Cal.

Nov. 7, 2008); Wang v. OCZ Technology Group, Inc., 276 F.R.D. 618, 626-27

(N.D. Cal. 2011).

The recent decision in Campion is instructive. There plaintiff claimed he was

fraudulently induced to purchase a warranty that he alleged defendants did not plan

to honor. See 2012 WL 992104, at *2. He sought injunctive relief under the CLRA

and UCL. Id. The court found that the plaintiff could not meet the requirements of

Article III standing for injunctive relief as a matter of law because his claim was

Based entirely on a past transaction, he did not intend to purchase another home

warranty plan, and even if [he] were to purchase another home warranty plan

he now has knowledge of Defendants alleged misconduct. Id. at *9. Thus,

Plaintiff [could not] show he is realistically threatened by a repetition of the alleged

violation and his claims for injunctive relief were denied. Id. And, as recognized

inDietz, the fact that Plaintiffs seek to bring this suit as a class action does not cure

the defect. Dietz, 2006 WL 3782902, at *4 (finding that the class averments did not

cure the defect in plaintiffs complaint because [u]nless the named plaintiff is

himself entitled to seek injunctive relief, he may not represent a class seeking thatrelief.) (internal citations omitted); see also Campion, 2012 WL 992104 at *8-9

(holding that there was no standing for injunctive relief even though class action

had been certified).

Plaintiffs claims for injunctive relief fail for the same reasons as in those

authorities. Both Plaintiffs Larsen and Eisenstat allege that they were misled by

past purchases. SAC 6, 8. Plaintiff Larsen alleged that she has not purchased

any of these products since learning in September 2011, and she alleged she would

not have purchased the products had she known the (alleged) truth about them.

Id. 6-7. Likewise, Plaintiff Eisenstat alleged in the First Amended Complaint

(D.E. 23 at 8) that he has not purchased Joe-Joes Cookies since March 2011, and

while he is silent on that issue in the SAC, he continues to allege that he would not



19/34

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28


have purchased the products had he known the truth, which he clams now to

know. SAC 8. And even if Plaintiffs were to make future purchases of the

product, they still would not have standing for injunctive relief. As the Campion

court noted, once a plaintiff is on notice of the alleged misconduct, there is no

realistic threat of a repetition of the alleged violation. Campion, 2012 WL 992104,

at *9. Under Article III, plaintiffs thus lack standing to assert claims for injunctive

relief.

D. The Court Should Dismiss the CLRA Damages Claims as to FiveProducts For Which Plaintiffs Failed to Send the Required Pre-Litigation Notice.

To bring a claim for damages under the CLRA, thirty days or more prior to

filing a complaint, a consumer must send a written notice by certified or registered

mail to the person alleged to have committed violations of the CLRA and demand

that the person correct those violations. Cal. Civ. Code 1782;Davis v. Chase

Bank U.S.A., N.A., 650 F. Supp. 2d 1073, 1089 (C.D. Cal. 2009) (compliance with

the notice requirement is necessary to state a claim). The purpose of this notice is

to give the manufacturer or vendor sufficient notice of the alleged defects to

permit appropriate corrections or replacements of the allegedly defective product.Stickrath v. Globalstar, Inc., 527 F. Supp. 2d 992, 1001 (N.D. Cal. 2007). To fulfill

this purpose, the notice must identify the product with enough specificity to permit

the manufacturer the opportunity to cure the alleged defect.

Where a plaintiff has not complied with the notice requirement before filing a

lawsuit seeking damages under the CLRA for the alleged violation, the Court

should dismiss the plaintiffs CLRA damages claim with prejudice. Cattie, 504 F.

Supp. 2d 939, 950 (S.D. Cal. 2007) (failure to give notice before seeking damages

necessitates dismissal with prejudice, even if a plaintiff later gives notice and

amends);Davis, 650 F. Supp. 2d at 1089 (this requirement is strictly adhered to

by dismissing a claim with prejudice); Stearns v. Select Comfort Retail Corp.,

Case No. 08-2746, 2009 WL 1635931, at *15 (N.D. Cal. June 5, 2009) (dismissing



20/34

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28


without leave to amend for failure to give notice);Janda v. T-Mobile USA, Inc.,

Case No. C 05-03729, 2008 WL 4847116, at *6 (N.D. Cal. Nov. 7, 2008) (same);

Laster v. T-Mobile USA, Inc., 407 F. Supp. 2d 1181, 1195-96 (S.D. Cal. 2005)

(same). Although a few courts have held that dismissing a CLRA damages claim

withoutprejudice is the appropriate remedy for failure to provide adequate notice,3

such an approach does not further the intent of the CLRA. As Cattie explains,

[p]ermitting Plaintiff to seek damages first and then later, in the midst of a lawsuit,

give notice and amend would destroy the notice requirements utility. 504 F.

Supp. 2d at 950. The only way to accomplish the CLRAs goals is [s]trict

adherence to the statutes notice provision and dismissal with prejudice where this

provision is not followed. Laster, 407 F. Supp. 2d at 1196. Dismissal with

prejudice is warranted even if defendant had actual notice of the CLRA damages

claim. Davis,650 F. Supp. 2d at 1089 (actual notice is not sufficient substitute).

On April 1, 2011, Plaintiff Eisenstat sent Trader Joes a letter claiming that

Trader Joes labeling of Joe Joes cookies as All Natural despite the presence

of the allegedly synthetic ingredient alkalized cocoa or cocoa processed with

alkali constitutes a violation of the CLRA. See SAC 42-44. This letter isattached as Exhibit A to this Motion and may properly be considered by the Court.

SeeVan Buskirk, 284 F.3d at 980 (court may properly consider documents

referenced by the complaint when assessing a motion to dismiss). The notice letter

identifies only Joe Joes Cookies as allegedly violating the CLRA. See Exhibit

A. It in no way identifies any alleged violations with respect to Trader Joes Jumbo

Cinnamon Rolls, Buttermilk Biscuits, Crescent Rolls, Fresh Pressed Apple Juice, or

Trader Giottos 100% Natural Fat Free Ricotta Cheese. Id.

Plaintiffs SAC confirms that their original April 2011 letter only addresses

Joe-Joes Cookies. SAC 42. In their Complaint, Plaintiffs asserted that they

3See, e.g., Keilholtz v. Superior Fireplace Co., Case No. C 08-00836, 2009 WL

839076, at *3 (N.D. Cal. Mar. 30, 2009).



21/34

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28


would send a supplemental letter to Trader Joes that sets forth these additional

violations that were identified since the filing of the original notification. Compl.

75. In the SAC, Plaintiffs confirm that they sent their second notification in

January 2012, after the filing of both the Complaint and the First Amended

Complaint. See SAC 44. In other words, Plaintiffs admit that they did not

provide Trader Joes with the requisite CLRA notice before filing the Complaint.

Sending a supplemental notice after filing a complaint does not comply with the

CLRAs strict notice requirements. Davis,650 F. Supp. 2d at 1089. To the extent

Plaintiffs wished to bring a claim for CLRA damages, they were required to

provide the requisite noticebefore filing the Complaint. Cattie,504 F. Supp. 2d at

950;Davis, 650 F. Supp. 2d at 1089. Plaintiffs failure to provide the requisite

notice warrants the dismissal with prejudice of their claim for CLRA damages with

respect to the following products: Trader Joes Jumbo Cinnamon Rolls, Buttermilk

Biscuits, Crescent Rolls, Fresh Pressed Apple Juice, and Trader Giottos 100%

Natural Fat Free Ricotta Cheese.

E. Plaintiffs Cannot Bring Claims Related to Products They Did NotPurchase.

Under Article III of the U.S. Constitution, Plaintiffs must have suffered a

cognizable legal injury to bring claims in federal court. See Friends of the Earth,

Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). This

requirement applies to each cause of action. Daimler Chrysler Corp. v. Cuno, 547

U.S. 332, 352 (2006) (plaintiff must demonstrate standing for each claim he seeks

to press). Plaintiffs must identify a particularized injury in fact that affected them

personally to have standing to bring their claim. Lujan, 504 U.S. at 560-61. As a

matter of law, they cannot do that with respect to a product that they did not

purchase. E.g.,Johns v. Bayer Corp., No. 09-cv-1935 DMS (JMA), 2010 WL

476688, at *5 (S.D. Cal. Feb. 9, 2010) (plaintiff cannot expand the scope of his



22/34

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28


claims to include a product he did not purchase or advertisements relating to a

product that he did not rely upon.); Carrea v. Dreyers Grand Ice Cream, Inc.,

Case No. C 10-01044, 2011 WL 159380, at *3 (N.D. Cal. Jan. 10, 2011) (no

standing where plaintiff did not purchase products);Mlejnecky v. Olympus Imaging

Case No. 2:10-cv-02630 JAM KJN, 2011 WL 1497096 *4 (E.D. Cal. Apr. 19,

2011) (dismissing claims regarding a camera model she had never purchasedeven

though the plaintiff alleged that it had the same underlying defects as a model she

did purchase and the defendant used the same advertisement for all Stylus

cameras).4

In the SAC, Plaintiffs still do not allege that they purchased Trader

Joes Crescent Rolls. See SAC 6, 8. Plaintiffs cannot suffer injury from a

product they did not purchase and have no standing to bring claims as to that

product.

In addition, injury is a required element of the California causes of action

asserted by Plaintiffs. As the California Supreme Court recently held, the voters of

California explicitly incorporated the federal standing requirements into the

standing test for the UCL and FAL. Kwikset,51 Cal. 4th at 320-22; see also

Birdsong v. Apple, Inc., 590 F.3d 955, 960 (9th Cir. 2009) ([T]o plead a UCLclaim, the plaintiffs must show, consistent with Article III, that they suffered a

distinct and palpable injury as a result of the alleged unlawful or unfair conduct).

Under that requirement, Plaintiffs must demonstrate some form of economic injury

resulting from the alleged violation in order to have standing to pursue a UCL or

FAL claim. Kwikset, 51 Cal. 4th at 323-24, 336 n.2. Likewise, Plaintiffs must

demonstrate that they suffered damage as a result of the alleged unlawful practice

or fraud to demonstrate standing under the CLRA and common-law fraud. See Cal.

Civ. Code 1780(a);Meyer v. Sprint Spectrum, L.P., 45 Cal. 4th 634, 638 (2009)

4And in Wang v. OCZ Technology Group, Inc., the court declined to grant the

defendants motion to strike on a similar argument but acknowledged that[plaintiffs] inability to allege injury based on products that he did not purchasemay ultimately subject those claims to proper dismissal pursuant to a Rule 12(b)motion or motion for summary judgment . 276 F.R.D. at 63233.



23/34

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28


(no standing to sue under the CLRA without some allegation that he or she has

been damaged by an alleged unlawful practice);In re Actimmune Mktg. Litig., No.

C-08-023786, 2009 WL 3740648, at *16 (N.D. Cal. Nov. 6, 2009) (CLRA); Chavez

v. Blue Sky Natural Beverage Co.,340 Fed. Appx. 359, 361 (9th Cir. 2009)

(common-law fraud); South Tahoe Gas Co. v. Hofmann Land Improvement Co., 25

Cal. App. 3d 750, 765 (1972) (fraud).

Plaintiffs here fail the simple test for because they have not and cannot

truthfully allege they were deceived by a products label into spending money to

purchase the product, and would not have purchased it otherwise. Kwikset, 51 Cal

4th at 317. If a consumer did not purchase a product, they have no standing to sue.

See alsoPfizer Inc. v. Superior Court,182 Cal. App. 4th 622, 632 (2010)

(consumers who were not exposed to the allegedly misleading advertisements did

not have standing to bring a claim because they could not have parted with their

money as a result of the alleged UCL violation). Plaintiffs do not even allege that

they parted with their money or were damaged by the purportedly misleading labels

on Trader Joes Crescent Rolls at any time. If Plaintiffs did not purchase the

product, then they did not lose money or property as a result of the allegedly falselabeling of the product. Indeed, Plaintiffs do allege that they saw additional

products labeled All Natural after filing suit (presumably because their attorneys

reviewed the claims with them) but still do not allege that they suffered injury as a

result of purchasing Crescent Rolls in reliance on their labels.

Finally, any claim with respect Crescent Rolls also fails because the alleged

fraud on Plaintiffs is not pleaded with the specificity required by Rule 9(b) -- or any

specificity at all since they did not buy the product. The gravamen of Plaintiffs

CLRA, UCL, FAL, and common-law fraud claims is that Trader Joes deceived

consumers through misleading labeling of certain products. SAC 2. All these

claims sound in fraud and therefore must meet the exacting pleading requirements

of Federal Rule of Civil Procedure 9(b). See Vess v. Ciba-Geigy Corp. USA, 317



24/34

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28


F.3d 1097, 1103 (9th Cir. 2003); Kearns v. Ford Motor Co., 567 F.3d 1120, 1125

(9th Cir. 2009) (applying Rule 9(b) to UCL and CLRA claims where plaintiff

alleges that the defendant engaged in a fraudulent course of conduct). To meet this

standard, a plaintiff must identify the circumstances of the fraud -- the who, where,

what, when and how -- including the reliance on the allegedly fraudulent conduct.

See In re GlenFed.,42 F.3d at 1547 n.7.

Plaintiffs allegations do not meet these standards. Plaintiffs allege no details

regarding the circumstances of the purchase of Trader Joes Crescent Rolls.

Indeed, they do not allege that they purchased Trader Joes Crescent Rolls, much

less when or where they purchase the product, which statements they personally

relied upon, or how they were damaged by the product. In addition to the standing

issues discussed above, those claims must be dismissed because Plaintiffs failure

to assert any details regarding their purchase of Trader Joes Crescent Rolls does

not meet the stringent pleading standards for claims sounding in fraud.

F. There is No Claim for Unjust Enrichment in California.The majority of California courts hold that unjust enrichment is not an

independent cause of action. E.g., Smith v. Ford Motor Co., Case No. 10-17321,2011 WL 6322200, at *3 (9th Cir. Dec. 19, 2011); Levine v. Blue Shield of Cal.,

189 Cal. App. 4th 1117, 1138 (2010) ([T]here is no cause of action in California

for unjust enrichment);Jogani v. Superior Court, 165 Cal. App. 4th 901, 911

(2008) ([U]njust enrichment is not a cause of action);McKell v. Wash. Mut.,

Inc., 142 Cal. App. 4th 1457, 1490 (2006) (dismissing unjust enrichment claim but

allowing UCL and breach of contract claims); Charles Schwab & Co. v. Bank of

Am., No. C-10-4913-JL, 2011 WL 1753805, at *5 (N.D. Cal. May 9, 2011).

Instead, the concept of unjust enrichment describes a general principle, underlying

various legal doctrines and remedies.Melchior v. New Line Prods., Inc., 106 Cal.

App. 4th 779, 793 (2003) (dismissing unjust enrichment claim but allowing claims

for breach of contract, declaratory relief, and accounting). Courts that have allowed



25/34

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28


claims of unjust enrichment to go forward are in the minority. Charles Schwab,

2011 WL 1753805, at *5.

Trader Joes appreciates that the Court has on some occasions permitted an

unjust enrichment claim where some other viable theory existed, e.g.,Boyter v.

Wells Fargo Bank, N.A., Case No. C 11-03943 SI, 2012 WL 1144281 *7 (N.D. Cal.

Apr. 4, 2012). But Trader Joes believes that a different result is appropriate here.

First, the prevailing trend is for courts not to recognize an independent cause of

action for what is, at most, a theory of recovery based some other claim, and no

purpose is served by permitting plaintiffs to assert theories of recovery as separate

claims. Second, as the Court stated inBoyter, [c]ourts in this District have held

that unjust enrichment claims lie either (1) in lieu of breach of contract damages,

where an asserted contract is found to be unenforceable or ineffective, or (2) where

the defendant obtained a benefit from the plaintiff by fraud, duress, conversion, or

similar conduct, but the plaintiff has chosen not to sue in tort. Id. (citing Clear

Channel Outdoor, Inc. v. Bently Holdings California LP, No. C112573 EMC,

WL 6099394, at * 9 (N.D .Cal. Dec. 7, 2011)). But there is no asserted contract

here, and Plaintiffs have chosen to sue in tort, so the exceptions noted areinapplicable.

For these reasons, Trader Joes urges the Court to follow the authorities cited

above and to reject Plaintiffs attempt to assert as an independent claim the non-

existent cause of action for unjust enrichment.

IV. CONCLUSIONFor the reasons stated above, Trader Joes respectfully requests that this

Court dismiss (1) the Magnuson-Moss warranty claim in its entirety; (2) the unjust

enrichment claim in its entirety; (3) all claims for injunctive relief because Plaintiffs

cannot demonstrate Article III standing; (4) the claim for damages under the CLRA

as to the five products for which Plaintiffs did not provide the required notice; and

(5) all claims as to Trader Joes Crescent Rolls, which Plaintiffs did not purchase.



26/34

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28


Dated: April 20, 2012

OMELVENY & MYERS LLP

By: /s/Margaret A. MoeserMargaret A. Moeser




27/34

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28


CERTIFICATE OF SERVICE

I hereby certify that on April 20, 2012, I electronically filed the foregoing

with the Clerk of the Court using the CM/ECF system which will send notification

of such filing to the e-mail addresses denoted on the Electronic Mail Notice List.

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

America that the foregoing is true and correct.

Executed on April 20, 2012.


By: /s/Margaret A. MoeserMargaret A. MoeserAttorneys for DefendantTrader Joes Company

OMM_US:70663406.4



28/34

EXHIBIT A



29/34



30/34



31/34



32/34

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

- 1 -[PROPOSED] ORDER GRANTING TRADER

JOES MOTION TO DISMISS SAC

CV-11-5188-SI

CARLA CHRISTOFFERSON (S.B. #161111)[email protected] A. MOESER (S.B. #253177)[email protected] IDES (S.B. # 274820)[email protected] & MYERS LLP400 South Hope StreetLos Angeles, CA 90071-2899Telephone: (213) 430-6000Facsimile: (213) 430-6407

RANDALL W. EDWARDS (S.B. #179053)[email protected] & MYERS LLPTwo Embarcadero Center, 28th FloorSan Francisco, CA 94111-3823Telephone: (415) 984-8700Facsimile: (415) 984-8701


UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

TAMAR DAVIS LARSEN ANDARAN EISENSTAT,

Plaintiffs,

v.

TRADER JOES COMPANY,

Defendant.

Case No. CV-11-5188-SI

[PROPOSED] ORDER GRANTINGDEFENDANT TRADER JOESCOMPANYS MOTION TODISMISS PLAINTIFFS SECONDAMENDED COMPLAINTPURSUANT TO FED. R. CIV. P.12(b)(1), 12(b)(6) AND 12(f)

Hearing Date: June 15, 2012Hearing Time: 9:00a.m.

Judge: Honorable Susan Illston

Complaint Filed: October 24, 2011Trial Date: None set

Case3:11-cv-05188-SI Document38-1 Filed04/20/12 Page1 of 3


33/34

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

- 2 -[PROPOSED] ORDER GRANTING TRADER

JOES MOTION TO DISMISS SAC

CV-11-5188-SI

On June 15, 2012, Defendant Trader Joes Companys Motion to Dismiss

Plaintiffs Complaint Pursuant to Federal Rules of Civil Procedure 12(b)(1),

12(b)(6) and 12(f) came on regularly for hearing before the Court, the Honorable

Susan Illston presiding. Having considered Defendants Motion to Dismiss and all

other supporting and opposing arguments and papers, and good cause appearing:

IT IS HEREBY ORDERED that Trader Joes Companys Motion to

Dismiss is GRANTED.

The Complaint is dismissed with prejudice in its entirety for lack of standingas to the following products: Trader Joes Crescent Rolls.

Plaintiffs claims for injunctive relief are dismissed with prejudice becausePlaintiffs cannot demonstrate the required Article III standing.

The First Cause of Action for violation of the Magnuson-Moss Warranty Actis dismissed with prejudice because Plaintiffs have failed to allege an

actionable written warranty.

The Seventh Cause of Action for Damages under the Consumer LegalRemedies Act, Cal. Civ. Code 1782 is dismissed with prejudice as to

Trader Joes Jumbo Cinnamon Rolls, Trader Joes Buttermilk Biscuits,Trader Joes Crescent Rolls, Trader Giottos 100% Natural Fat Free Ricotta

Cheese, and Trader Joes Fresh Pressed Apple Juice for failure to comply

with the pre-litigation notice requirements.

The Eighth Cause of Action for Unjust Enrichment is dismissed withprejudice because there is no cause of action for unjust enrichment in

California.

IT IS SO ORDERED.

DATED:HONORABLE SUSAN ILLSTONUNITED STATES DISTRICT JUDGE



34/34

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

CERTIFICATE OF SERVICE

I hereby certify that on April 20, 2012, I electronically filed the foregoing

with the Clerk of the Court using the CM/ECF system which will send notification

of such filing to the e-mail addresses denoted on the Electronic Mail Notice List.

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

America that the foregoing is true and correct.

Executed on April 20, 2012.


By: /s/Margaret A. MoeserMargaret A. Moeser


OMM_US:70666710.1


mot to dismiss larsen v trader joe's

Documents