Opinion
Case No.: SACV 20-01859-CJC(JDEx)
2020-11-18
Darren CLEVENGER, on behalf of himself and all other similarly situated individuals, Plaintiff, v. WELCH FOODS, INC., the Promotion In Motion Companies, Inc., and Does 1–25, Defendants.
Anthony L. Lanza, Anthony E. DI Vincenzo, Robert J. Stein, III, DiVincenzo Schoenfield Stein, Ramin Todd Montakab, Lanza and Smith APC, Irvine, CA, for Plaintiff. David Bloom, pro se. Daniel Scott Silverman, Bryan J. Weintrop, Venable LLP, Los Angeles, CA, for Defendants.
Anthony L. Lanza, Anthony E. DI Vincenzo, Robert J. Stein, III, DiVincenzo Schoenfield Stein, Ramin Todd Montakab, Lanza and Smith APC, Irvine, CA, for Plaintiff.
David Bloom, pro se.
Daniel Scott Silverman, Bryan J. Weintrop, Venable LLP, Los Angeles, CA, for Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS [Dkt. 26]
CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Plaintiff Darren Clevenger brings this putative class action against Defendants Welch Foods, Inc. ("Welch"), The Promotion In Motion Companies, Inc. ("PIM"), and unnamed Does. Plaintiff alleges violations of California's Unfair Competition Law ("UCL") and Consumers Legal Remedies Act ("CLRA"). Now before the Court is Defendants’ motion to dismiss Plaintiff's first amended complaint ("FAC"). (Dkt. 15 [hereinafter "Mot."].) For the following reasons, Defendants’ motion is GRANTED IN PART AND DENIED IN PART . II. BACKGROUND
Having read and considered the papers presented by the parties, the Court finds this matter appropriate for disposition without a hearing. See Fed. R. Civ. P. 78 ; Local Rule 7-15. Accordingly, the hearing set for November 30, 2020, at 1:30 p.m. is hereby vacated and off calendar.
Plaintiff alleges that Defendant Welch manufactures and sells several varieties of fruit snacks, which are packaged and distributed by Defendant PIM. (Dkt. 1-9 [FAC] ¶¶ 5, 25.) The fruit snacks are sold in cardboard boxes that contain a set number of plastic pouches. (Id. ¶¶ 10–11.) Plaintiff alleges that certain varieties of Defendants’ fruit snacks are sold in boxes that are underfilled. (Id. ¶¶ 10–12.) Specifically, both Welch's Fruit n’ Yogurt Snacks ("Yogurt Fruit Snacks") and Welch's Fruit Snacks with Reduced Sugar ("Reduced Sugar Snacks") are sold in boxes that contain only eight pouches. (Id. ¶ 10.) Plaintiff alleges that these boxes are "substantially under-filled" because other non-premium varieties of Welch's Fruit Snacks ("Regular Fruit Snacks") contain 10 pouches and are sold in the same-sized boxes. (Id. ) Additionally, Plaintiff alleges that Welch's Fruit Snacks sold at Costco ("Costco Fruit Snacks"), which are sold in larger quantities, are underfilled because each box contains only 90 pouches but can hold at least 110 pouches. (Id. ¶ 12.) Each product's box discloses the number of pouches that it contains as well as the weight of each pouch and the net weight of snacks in the box. (Dkt. 16 Exs. A–F.) Plaintiff has purchased Yogurt Fruit Snacks but not Reduced Sugar Snacks or Costco Fruit Snacks. (See FAC ¶ 3.)
Although the contents of the product labels are not alleged in Plaintiff's FAC, the Court takes judicial notice of the labels that Defendants submitted as exhibits because "(1) the complaint refers to the[m]; (2) [they are] central to the plaintiff's claim; and (3) no party questions the[ir] authenticity." Padilla v. Whitewave Foods Co. , 2019 WL 4640399, at *3 (C.D. Cal. July 26, 2019) ; see also Escobar v. Just Born Inc. , 2017 WL 5125740, at *2 (C.D. Cal. June 12, 2017) (noting that when considering a motion to dismiss, a "court may properly consider ... material subject to judicial notice").
Plaintiff alleges that Defendants’ packaging violates both the UCL and the CLRA. He brings his claims on behalf of all persons who purchased in California Reduced Sugar Snacks or "any other Welch's brand fruit snacks containing less pouches per box than the Regular Fruit Snacks." (FAC ¶ 26.)
III. LEGAL STANDARD
A. Motion to Dismiss Standard
A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a plaintiff's claims. The issue on a motion to dismiss for failure to state a claim is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to offer evidence to support the claims asserted. Gilligan v. Jamco Dev. Corp. , 108 F.3d 246, 249 (9th Cir. 1997). Rule 12(b)(6) is read in conjunction with Rule 8(a), which requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2).
To survive a motion to dismiss, a complaint must contain sufficient factual allegations to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). When evaluating a Rule 12(b)(6) motion, the district court must accept all material allegations in the complaint as true and construe them in the light most favorable to the non-moving party. Skilstaf, Inc. v. CVS Caremark Corp. , 669 F.3d 1005, 1014 (9th Cir. 2012). However, the Court is "not bound to accept as true a legal conclusion couched as a factual allegation." Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
Claims sounding in fraud must satisfy the heightened pleading requirements of Rule 9(b). Under that rule, a plaintiff alleging fraud must "state with particularity the circumstances constituting fraud or mistake." Fed. R. Civ. P. 9(b) ; see Kearns v. Ford Motor Co. , 567 F.3d 1120, 1145 (9th Cir. 2009). The plaintiff must set forth the "who, what, when, where, and how" of the alleged misconduct. See Vess v. Ciba-Geigy Corp. USA , 317 F.3d 1097, 1106 (9th Cir. 2003) ; Cooper v. Pickett , 137 F.3d 616, 627 (9th Cir. 1997).
B. Statutory Framework Governing "Slack Fill"
Both the federal Food Drug and Cosmetic Act ("FDCA") and California's Fair Packaging and Labeling Act ("FPLA") prohibit "misleading" food containers. Cal. Bus. & Prof. Code § 12606 (b) ; 21 C.F.R. § 100.100. The statutes provide that a container is misleading when it contains "nonfunctional slack fill" and it "does not allow the consumer to fully view its contents." Cal. Bus. & Prof. Code § 12606(b) ; 21 C.F.R. § 100.100(a). "Slack fill" is defined as the "difference between the actual capacity of a container and the volume of product contained therein." Cal. Bus. & Prof. Code § 12606(b) ; 21 C.F.R. § 100.100(a). It is "nonfunctional" when the package is filled to "substantially less than its capacity for reasons other than" those approved by the statutes. Ebner v. Fresh, Inc. , 838 F.3d 958, 967 (9th Cir. 2016) ; Cal. Bus. & Prof. Code § 12606(b) ; 21 C.F.R. § 100.100(a)
IV. DISCUSSION
Defendants argue that Plaintiff's claims should be dismissed because (1) he lacks standing and (2) he fails to state a claim on which relief can be granted.
A. Standing
The party invoking federal jurisdiction bears the burden of establishing standing under Article III of the Constitution. See Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). To satisfy Article III's standing requirement, a plaintiff must allege an "injury in fact" that is "fairly traceable to the challenged action of the defendant" and likely to be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 180–81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Standing must be shown to support each form of relief requested. See id. at 185, 120 S.Ct. 693. In addition to the requirements of Article III, private UCL plaintiffs must establish that they "lost money or property as a result of the unfair competition." Cal. Bus. & Prof. Code § 17204. Defendants contend that Plaintiff lacks standing to pursue claims for (1) restitution and damages and (2) injunctive relief.
1. Claims for Restitution & Damages
Defendants first argue that Plaintiff lacks standing because he fails to allege that he suffered an economic injury as a result of Defendants’ conduct. The Court disagrees. Plaintiffs alleging claims for restitution and damages under the UCL and CLRA satisfy the injury-in-fact requirement if they can establish that the challenged practices caused them an economic injury. Hinojos v. Kohl's Corp. , 718 F.3d 1098, 1104 (9th Cir. 2013) (quoting Kwikset Corp. v. Superior Court , 51 Cal. 4th 310, 330, 120 Cal.Rptr.3d 741, 246 P.3d 877 (2011) ). Economic injury exists where "the consumer paid more than he or she actually valued the product." Hinojos , 718 F.3d at 1104. Here, Plaintiff has properly alleged that slack fill in Defendants’ products caused him economic injury because he "overpaid and/or acquired less than he would have if the same packages had not contained nonfunctional slack-fill." (FAC ¶ 39.)
The CLRA provides a cause of action for consumers who suffer "any damage," and this standard is satisfied by an economic injury required for standing under the UCL. Hinojos , 718 F.3d at 1108.
Defendants argue that even if Plaintiff has standing to pursue claims based on the product that he purchased—the Yogurt Fruit Snacks—he lacks standing to pursue claims based on products that he did not purchase himself—the Reduced Sugar Snacks and the Costco Fruit Snacks. The Court concludes that Plaintiff has standing for the Reduced Sugar Snacks but not the Costco Fruit Snacks.
"[T]he ‘prevailing view’ in the Ninth Circuit is that class action plaintiffs can bring claims for products they did not purchase as long as the products and alleged misrepresentations are substantially similar." Cordes v. Boulder Brands USA, Inc. , 2018 WL 6714323, at *5 (C.D. Cal. Oct. 17, 2018) (quotations omitted); Padilla v. Whitewave Foods Co. , 2019 WL 4640399, at *9 (C.D. Cal. July 26, 2019). When applying the substantial similarity test to nonfunctional-slack-fill claims, courts have considered whether the composition of the products are so similar that the slack-fill analysis would likely be the same for both products. Gordon v. Tootsie Roll Indus., Inc. , 2017 WL 4786090, at *2 (C.D. Cal. Oct. 4, 2017).
Here, the Reduced Sugar Snacks are substantially similar to the Yogurt Fruit Snacks, which Plaintiff purchased. Plaintiff alleges that both products are sold in same-sized boxes and contain the same number of pouches. (FAC ¶¶ 2–3, 10.) Furthermore, Plaintiff alleges that the boxes for both products contain the same amount of empty space, and Plaintiff measures this amount of empty space by comparing both products to Regular Fruit Snacks, which contain two more pouches in same-sized boxes. (Id. )
In contrast, the Costco Fruit Snacks are sold in a larger box that contains a different amount of empty space. (Id. ¶¶ 2, 12.) Moreover, Plaintiff does not allege that the Costco Fruit Snacks are slack filled by comparing them to Regular Fruit Snacks. Instead, he alleges that they are filled to approximately 82 percent capacity. (Id. ) Because Costco Fruit Snacks containers have a different size and composition from the other two products, they are not substantially similar. See Padilla , 2019 WL 4640399, at *10 (denying standing where "the FAC does not allege that the Products have similar "density, weight, volume, size or shape," and there was a "disparity in the allegations as to the slack fill of the purchased product, i.e. approximately 33.33%, and the allegations as to the [slack fill of the unpurchased products], i.e. , approximately 50%). Accordingly, Plaintiff has standing to pursue his damages and restitution claims for both Yogurt Fruit Snacks and Reduced Sugar Snacks but not Costco Fruit Snacks. Defendants’ motion to dismiss Plaintiff's claims based on the Costco Fruit Snacks is therefore GRANTED .
2. Injunctive Relief
Plaintiff lacks standing to pursue injunctive relief related to any variety of fruit snacks mentioned in his FAC. To have standing to seek injunctive relief, "a plaintiff must show a sufficient likelihood that he will again be wronged in a similar way." Cordes , 2018 WL 6714323, at *3. Because Plaintiff is now aware of how many pouches the challenged products contain, there is not a sufficient likelihood that he will suffer economic injury by purchasing these products in the future. See id. at *3–4. Still, Plaintiff argues that he has standing under the Ninth Circuit's opinion in Davidson v. Kimberly-Clark Corp. , which found that a plaintiff had standing to pursue injunctive relief on her false-advertising claims. 889 F.3d 956, 971 (9th Cir. 2018). In Davidson , however, the plaintiff alleged that the defendants falsely advertised personal cleansing wipes as "flushable" in a toilet. Id. at 970–71. The Davidson court held that the plaintiff had standing because she could not determine whether the wipes were actually "flushable" without using them. Id. at 971–72. Consequently, the plaintiff was likely to suffer a future injury because she could not "rely on the validity of the information advertised on [defendants’] wipes" when deciding whether to buy them in the future. Id. at 971.
Here, in contrast, Plaintiff alleges that he suffered an injury because he expected Defendants’ products to contain more fruit snacks than they did based on their size. (FAC ¶¶ 10–11.) But Plaintiff is now aware that each of the challenged products discloses both the number of pouches and the net weight of the snacks contained in each box, (Dkt. 16 Exs. A–F), and Plaintiff does not allege that these disclosures are misleading, (see FAC ¶ 1). Because Plaintiff can determine how many fruit snacks are in each box by simply reading the label, there is not a sufficient risk that he will suffer economic injury in the future based on alleged slack fill in Defendants’ products. Cordes , 2018 WL 6714323, at *4 ("Plaintiff has not adequately explained why he will be deceived by slack-fill in the future, now that he knows that he can easily determine the number of pretzels in each package by simply reading the label."). Plaintiff therefore lacks standing to pursue injunctive relief.
B. Failure to State a Claim
Defendants argue that Plaintiff's FAC should be dismissed for failure to state a claim under Rule 12(b)(6). The Court first considers Plaintiff's UCL claim and then his CLRA claim.
1. UCL Claim
Defendants argue that Plaintiff's UCL claim fails because reasonable consumers would not be misled by Defendants’ packaging. Defendants’ argument is unavailing, however, because Plaintiff is not required to show that reasonable consumers would be misled.
The UCL prohibits "any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising." Cal. Bus. & Prof. Code § 17200. "Because the statute is written in the disjunctive, it is violated where a defendant's act or practice is (1) unlawful, (2) unfair, (3) fraudulent, or (4) in violation of section 17500 (false or misleading advertisements)." Lozano v. AT & T Wireless Servs., Inc. , 504 F.3d 718, 731 (9th Cir. 2007)
Plaintiff brings his claim under the UCL's "unlawful" prong, which prohibits "anything that can properly be called a business practice and that at the same time is forbidden by law." Clevenger v. Riviana Foods Inc. , 2019 WL 8167916, at *4 (C.D. Cal. Oct. 22, 2019) (quoting Cel-Tech Commc'ns, Inc. v. L.A. Cellular Tel. Co. , 20 Cal. 4th 163, 83 Cal.Rptr.2d 548, 973 P.2d 527 (1999) ). "By proscribing ‘any unlawful’ business practice, the UCL permits injured consumers to ‘borrow’ violations of other laws and treat them as unfair competition that is independently actionable." Id. (quoting Cel-Tech , 20 Cal. 4th at 180, 83 Cal.Rptr.2d 548, 973 P.2d 527 ); Durell v. Sharp Healthcare , 183 Cal. App. 4th 1350, 1361, 108 Cal.Rptr.3d 682 (2010) ("Virtually any law—federal, state or local—can serve as a predicate action under [the UCL].").
Plaintiff alleges that Defendants’ packaging violates both the federal FDCA and California's FPLA, which prohibit "misleading" food containers. Cal. Bus. & Prof. Code § 12606(b) ; 21 C.F.R. § 100.100. The statutes provide that a container is misleading when it contains "nonfunctional slack fill" and it "does not allow the consumer to fully view its contents." Cal. Bus. & Prof. Code § 12606(b) ; 21 C.F.R. § 100.100(a). "Slack fill" is defined as the "difference between the actual capacity of a container and the volume of product contained therein." Cal. Bus. & Prof. Code § 12606(b) ; 21 C.F.R. § 100.100(a). It is "nonfunctional" when the package is filled to "substantially less than its capacity for reasons other than" those approved by the statute. Ebner v. Fresh, Inc. , 838 F.3d 958, 967 (9th Cir. 2016) ; Cal. Bus. & Prof. Code § 12606(b) ; 21 C.F.R. § 100.100(a).
Approved reasons for slack fill include:
(1) Protection of the contents of the package.
(2) The requirements of the machines used for enclosing the contents in the package.
(3) Unavoidable product settling during shipping and handling.
(4) The need for the package to perform a specific function, such as where packaging plays a role in the preparation or consumption of a food, if that function is inherent to the nature of the food and is clearly communicated to the customers.
(5) The fact that 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.
(6) Inability to increase the level of fill or to further reduce the size of the package, such as where some minimum package size is necessary to accommodate required food labeling exclusive of any vignettes or other nonmandatory designs or label information, discourage pilfering, facilitate handling, or accommodate tamper-resistant devices.
Cal. Bus. & Prof. Code § 12606 ; 21 C.F.R. § 100.100(a).
Because nonfunctional slack fill is prohibited by both the FDCA and the FPLA, a claim alleging nonfunctional slack fill is actionable under the UCL's unlawful prong. When bringing a nonfunctional-slack-fill claim, a Plaintiff is not required to separately show that the nonfunctional slack fill would mislead a reasonable consumer. Rather, both the FDCA and FPLA expressly classify nonfunctional slack fill as "misleading." Cal. Bus. & Prof. Code § 12606 ("A container that does not allow the consumer to fully view its contents shall be considered ... misleading if it contains nonfunctional slack fill."); see Clevenger v. Riviana Foods Inc. , 2019 WL 8167916, at *5 (C.D. Cal. Oct. 22, 2019) ("When a plaintiff brings a claim under the unlawful prong of the UCL predicated on a violation of [the FDCA or FPLA], the only defense available is that the conduct is not unlawful within [those statutes], either because the container allows the consumer to fully view its contents ... or because the slack fill is permissible under one of the statute[s’] safe harbor exceptions."). Accordingly, Plaintiff need not establish that a reasonable consumer would be misled by Defendants’ products to sufficiently state a claim for nonfunctional slack fill under the UCL's unlawful prong. Here, Plaintiff has stated a plausible claim for relief under the UCL by alleging specific facts which show that Defendants’ products contained nonfunctional slack fill in violation of both the FDCA and FPLA. (FAC ¶¶ 2, 10–11, 17–24.) Plaintiff alleges that both the Yogurt Fruit Snacks and the Reduced Sugar Snacks are underfilled compared to other varieties of Defendants’ Regular Fruit Snacks that come in same-sized boxes. (Id. ¶ 10.) While Plaintiff has not alleged the exact percentage of empty space in the boxes, he alleges that the challenged products are 20 percent less full than the Regular Fruit Snacks by quantity and nearly 30 percent less full by weight. (Id. ) These allegations create a plausible inference that Defendants’ products contain substantial empty space. See Padilla , 2019 WL 4640399, at *10 (denying motion to dismiss where Plaintiff alleged that a product contained 33.33% empty space); Spacone v. Sanford, LP , 2017 WL 6888497, at *6 (C.D. Cal. May 11, 2017) (noting there is no "minimum requirement for the precise amount of empty space within the packaging before it becomes unlawful"). Furthermore, Plaintiff alleges specific facts demonstrating that the boxes’ empty space is nonfunctional because it does not fall within the statutorily approved reasons for slack fill. (See FAC ¶¶ 17–24); Cal. Bus. & Prof. Code § 12606 ; 21 C.F.R. § 100.100(a).
Defendant asserts that in Ebner v. Fresh, Inc. , the Ninth Circuit held that the reasonable-consumer test applies to claims, like Plaintiff's, brought under the UCL's unlawful prong for violations of the FPLA. 838 F.3d 958 at 967. But in Ebner , the Ninth Circuit applied the reasonable-consumer test to claims alleging a violation of a different section of the FPLA, which provides "that no container shall have a false bottom that ‘facilitate[s] the perpetration of deception or fraud.’ " Id. (quoting Cal. Bus. & Prof. Code § 12606(a) ). Indeed, when the Ebner court considered Plaintiff's nonfunctional-slack-fill claim, it held that the claim failed because the product did not contain "slack fill" within the meaning of the FPLA. Ebner , 838 F.3d at 967. The court did not apply the reasonable-consumer test. Id.
Although Defendants assert that Plaintiff has failed to sufficiently allege that Welch is responsible for the misleading packaging, the Court disagrees. Defendants argue that Welch cannot be liable because PIM was solely responsible for the "manufacturing and distribution of the Products." (Mot. at 21.) But Plaintiff alleges that Welch and PIM "jointly control and share responsibility for the manufacture, branding, marketing, and/or distribution of the subject products." (FAC ¶ 5.) Because the Court must take Plaintiff's allegations as true at the motion-to-dismiss stage, this allegation is sufficient to state a plausible claim for relief.
Neither the product labels stating that PIM "manufacture[s] and distribute[s]" the products nor the licensing agreement between PIM and Welch contradict Plaintiff's allegation. (See Dkts. 16-4–16-6.) Defendants initially asked the court to take judicial notice of the licensing agreement between Welch and PIM. (Dkt. 16.) But after the Court denied Defendant's application to seal the agreement, (Dkt. 24), Defendants withdrew the agreement from consideration in connection with their motion to dismiss. (Dkt. 25.) Accordingly, the Court need not decide whether to take judicial notice of the agreement.
2. CLRA Claim
Defendants similarly argue that Plaintiff's CLRA claim fails because reasonable consumers would not be misled by Defendants’ packaging. The Court disagrees.
The CLRA prohibits "unfair or deceptive acts or practices" in connection with the sale of goods to a consumer. Cal. Civ. Code § 1770 (West). Unlike the UCL, the CLRA does not contain an "unlawful" prong that allows injured consumers to assert claims for violations of other laws. Here, Plaintiff brings his CLRA claim under § 1770(a)(5), which prohibits "[r]epresenting that goods ... have ... characteristics ... or quantities that they do not have." Cal. Civ. Code § 1770(a)(5). To violate this provision, Defendants’ conduct must be "likely to mislead a reasonable consumer." See Wilson v. Hewlett-Packard Co. , 668 F.3d 1136, 1140 (9th Cir. 2012). Thus, Plaintiff's CLRA claim is "governed by the reasonable consumer test," which requires a plaintiff to "show that members of the public are likely to be deceived." Williams v. Gerber Prod. Co. , 552 F.3d 934, 938 (9th Cir. 2008) ; Cordes , 2018 WL 6714323, at *1, 7 ("Plaintiff's [nonfunctional-slack-fill] claim under the CLRA is governed by the ‘reasonable consumer test.’ "). Under the reasonable consumer test, there must be "a probability that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled." Ebner , 838 F.3d at 965. This requires "more than a mere possibility that [the defendant's products] might conceivably be misunderstood by some few consumers viewing [them] in an unreasonable manner." Id. "[W]hether product labeling or packaging may mislead a reasonable consumer is a factual inquiry rarely appropriate for decision on a motion to dismiss." Escobar v. Just Born Inc. , 2017 WL 5125740, at *11 (C.D. Cal. June 12, 2017) (citing Williams , 552 F.3d at 939 ).
Plaintiff's allegations create a plausible inference that reasonable consumers would be misled by Defendants’ packaging. Defendants argue that Plaintiff fails to meet the reasonable consumer standard because Defendants’ packaging "discloses the count and weight of the contents of the container." (Mot. at 9). The Court disagrees, however, because Defendants’ packaging discloses only the weight and number of pouches in each container, not the number of fruit snacks. (Dkt. 16 Exs. A–F.)
In Padilla , the court declined to decide, on a motion to dismiss, that reasonable consumers would not be misled by a protein powder's packaging where "the packaging list[ed] the weight and approximate number of [scoops] in each container." 2019 WL 4640399, at *11. The court reasoned that because a " ‘scoop’ of protein powder is not an intrinsically meaningful metric of quantity," the containers’ "size may provide consumers with a more salient means by which to assess the quantity of product they are purchasing and its value." Id. (noting that "20 scoops of protein powder communicates materially less information to a consumer than a label stating that a cannister contains 20 cookies."); see also Escobar , 2017 WL 5125740, at *9 ("[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."). Just as a "scoop" in Padilla was "not an intrinsically meaningful metric of quantity," the number of fruit snack "pouches" in each box does not communicate to consumers the number of fruit snacks contained therein. 2019 WL 4640399, at *11. Accordingly, reasonable consumers could be misled by slack fill in Defendants’ fruit-snack containers even though they disclose the weight and number of pouches contained inside.
Moreover, this case is distinguishable from cases holding that a reasonable consumer could not be misled by packaging that discloses "actual unit counts." See Kennard v. Lamb Weston Holdings, Inc. , 2019 WL 1586022, at *5 (N.D. Cal. Apr. 12, 2019) (holding that reasonable consumers would not be deceived by slack fill where the label disclosed "the number of fries per serving[ ] and the approximate number of servings per container"); Bush v. Mondelez Int'l, Inc. , 2016 WL 5886886, at *3 (N.D. Cal. Oct. 7, 2016) (holding that reasonable consumers would not be misled by slack-filled cookie and cracker containers where the product labels "disclose the ... number of cookies or crackers per container"). Because Defendants’ packaging discloses only the number of pouches and not the number of fruit snacks contained in each box, the Court concludes that this is not "the rare situation in which granting a motion to dismiss is appropriate." Williams , 552 F.3d at 939.
V. CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED IN PART AND DENIED IN PART . The motion is GRANTED as to Plaintiff's claims related to Costco Fruit Snacks and Plaintiff's claims for injunctive relief related to Yogurt Fruit Snacks and Reduced Sugar Snacks. The motion is DENIED as to Plaintiff's UCL and CLRA claims for restitution and damages related to Yogurt Fruit Snacks and Reduced Sugar Snacks. Defendant shall file an answer to the surviving claims in Plaintiff's FAC by December 1, 2020.