Jennifer O’Neil v. Blue Diamond Growers, Inc.
Case No: 19CV01652
Hearing Date: Tue Aug 27, 2019 9:30

Nature of Proceedings: Demurrer to First Amended Complaint

Demurrer to Plaintiff’s First Amended Complaint

Case Management Conference

ATTORNEYS:

Matthew T. Theriault for Plaintiff Jennifer O’Neil

Geoffrey R. Pittman for Defendant Blue Diamond Growers, Inc.

RULING: Defendant’s demurrer to plaintiff’s first amended complaint, and each and every cause of action, is sustained without leave to amend for failure to plead an actionable claim. The Court finds that defendant’s use of the term “artisan” in its snack cracker products is not deceptive or misleading to the average consumer as a matter of law. The Case Management Conference is ordered off calendar as unnecessary under the circumstances.

BACKGROUND:

This is a putative class action lawsuit. Plaintiff Jennifer O’Neil, individually and on behalf of all other purchases of Blue Diamond “Artisan Nut-Thins” (the “Product”), a snack cracker product made and distributed by defendant Blue Diamond Growers, Inc., brings this action against defendant, claiming that the crackers are deceptively labeled and advertised as “artisan” when they are mass produced by machines. Plaintiff alleges that when she purchased the Product she relied upon the “artisan” label and believed the Product was of artisan quality, i.e., that it was produced in small quantities by hand using traditional methods by someone skilled in the trade and not mass produced through automation. Plaintiff alleges that she would not have purchased the Product had she known that it was not to artisan standards.

Plaintiff filed her complaint on March 28, 2019. On June 20, 2019, plaintiff filed her first amended complaint (“FAC”), alleging causes of action for (1) violation of California’s Unfair Competition Law (Bus. & Prof. Code §17200 et seq.), (2) violation of California’s False Advertising Law (Bus. & Prof. Code §17500 et seq.), (3) violation of California’s Consumer Legal Remedies Act (Civ. Code §1750 et seq.), (4) breach of express warranty, and (5) unjust enrichment. Plaintiff seeks money damages, restitution, and injunctive relief.

Defendant demurs to the FAC for failure to state a cause of action. Defendant contends that plaintiff has not, and cannot, plead an actionable misrepresentation based on defendant’s use of the term “artisan” on the Product.

ANALYSIS:

The grounds for objecting to a complaint by demurrer are set forth in Code of Civil Procedure Section 430.10, which provides, in relevant part:

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:

* * *

“(e) The pleading does not state facts sufficient to constitute a cause of action.”

California law requires a complaint in a civil action to contain a statement of the facts constituting the cause of action in ordinary and concise language and a demand for relief to which the plaintiff claims to be entitled. Code Civ. Proc. §425.10, subd. (a). “What is necessary to state a cause of action are the facts warranting legal relief . . . .” Alfaro v. Community Housing Improvement System & Planning Association, Inc. (2009) 171 Cal.App.4th 1356, 1371. If the complaint does not state facts sufficient to constitute a cause of action, a general demurrer to the complaint will be sustained. Code Civ. Proc. §430.10, subd. (e).

Defendant sells “Artisan Nut Thins,” a snack cracker product that comes in a variety of flavors, including flax seed, sesame seed, and multi-seed. (FAC, ¶20.) The term “artisan” appears on the front of the Product’s packaging. (FAC, p.2:10-26.) Plaintiff challenges defendant’s use of the term “artisan” on the Product and in its advertising on the ground that the Product does not satisfy the definition of “artisan.” Plaintiff defines “artisan” as follows:

“Artisan refers to a high quality or distinctive product made in small quantities, usually by hand and using traditional methods by someone skilled in the trade. Artisan foods are handcrafted by small food producers in small batches in order to produce a product that is of higher quality than that which is mass produced.” (FAC, ¶1.)

Plaintiff alleges that “artisan quality” means “at a minimum, it does not undergo mechanized mass-production.” (FAC, ¶45.) Plaintiff claims that the Product does not meet the definition of “artisan” because “Blue Diamond specializes in nuts – not handcrafted crackers – and it mass produces its products through highly mechanized processes.” (FAC, ¶2.) Plaintiff additionally alleges that the Product has “no characteristics of an artisan product” because it is “mass produced through mechanization by a corporation that specializes in almond growing, packaging, and distributing.” (FAC, ¶¶ 27, 28.) Plaintiff further alleges that she “relied upon the claim ‘artisan’ prominently and conspicuously displayed” on the packaging of the Product “both at, and prior to, the point of sale.” (FAC, ¶7.) Finally, plaintiff alleges that “[h]ad [she] known the Product was mass produced, not to artisan standards, she would not have purchased the Product.” (FAC, ¶8.)

Based on these allegations, plaintiff asserts causes of action for (1) unfair competition (Bus. & Prof. Code §17200 et seq.), (2) false and misleading advertising (Bus. & Prof. Code §17500 et seq.), (3) violation of California’s Consumer Legal Remedies Act (Civ. Code §1750 et seq.), (4) breach of express warranty, and (5) unjust enrichment. (FAC, ¶¶ 42-93.) Plaintiff seeks an order enjoining defendant from continuing to use the term “artisan” in connection with the Product, as well as damages and restitution to plaintiff and all members of the putative class. (FAC, p. 17:6-17.) The class plaintiff seeks to represent is comprised of:

“All persons who purchased the Product in the State of California for personal use and not for resale during the time period commencing four years prior to the filing of the Complaint through the present.” (FAC, ¶30.)

Apart from defendant’s use of the term “artisan,” plaintiff does not challenge any other statements or representations regarding the Product.

Defendant contends that the FAC fails to state a cause of action against Blue Diamond as a matter of law because the term “artisan” is too vague, general, and subjective to constitute an actionable statement or misrepresentation. Moreover, defendant argues, no reasonable consumer could be misled to believe that the term “artisan” means that the Product is made “by hand using traditional methods” and “not mass produced through mechanization” since, as plaintiff readily admits, Blue Diamond is a national corporation that offers its products for sale at stores and retailers throughout California and the nation. (FAC, ¶¶ 1, 9, 25.) As the court stated in Oestreicher v. Alienware Corporation (N.D. Cal. 2008) 544 F.Supp.2d 964, 973:

“Generalized, vague, and unspecified assertions constitute ‘mere puffery’ upon which a reasonable consumer could not rely, and hence are not actionable.”

The determination of whether an alleged misrepresentation “is a statement of fact” or is instead “mere puffery” is a legal question that may be resolved on motion. Cook, Perkiss, and Leihe, Inc. v. Northern California Collection Service, Inc. (9th Cir. 1990) 911 F.2d 242, 245. In general, mis-descriptions of a product that are very specific in nature, such as the number of channels available on a satellite television product, may be actionable, whereas generalized and vague statements concerning a product’s quality or superiority, such as the system provides “crystal clear digital” video, are considered non-actionable “puffery” upon which a reasonable consumer would not rely. Consumer Advocates v. Echostar Satellite Corporation (2003) 113 Cal.App.4th 1351, 1361; See also, Newcal Industries, Inc. v. Ikon Office Solution (9th Cir. 2008) 513 F.3d 1038, 1053 (“Ultimately, the difference between a statement of fact and mere puffery rests in the specificity or generality of the claim.”).

California courts have long held that mere “puffing” cannot support liability under California’s consumer protection statutes. While no court has yet opined on whether the term “artisan” constitutes an actionable misrepresentation, courts have held that similar advertising terms on food and beverage products, such as “handcrafted,” “premium,” and “all natural” are non-actionable puffery. See, Welk v. Beam Suntory Import Company (S.D. Cal. 2015) 124 F.Supp.3d 1039, 1044 (holding consumer’s unfair competition and false advertising claims based on defendant’s labeling of its bourbon as “handcrafted” failed to state a viable cause of action); Viggiano v. Hansen Natural Corporation (C.D. Cal. 2013) 944 F.Supp.2d 877, 895 (company’s use of the term “premium” on soda packaging was mere puffery and could not provide the basis for an express warranty claim); Pelayo v. Nestle USA, Inc. (C.D. Cal. 2013) 989 F.Supp.2d 973, 979-980 (dismissing with prejudice plaintiff’s Consumer Legal Remedies Act claim challenging company’s “all natural” labeling on its pasta products as misleading because plaintiff failed to show that her subjective definition of “all natural” was shared by the reasonable consumer).

The Welk case is nearly identical to the present dispute. There, a consumer brought a putative class action against a distiller, alleging violations of California’s Unfair Competition Law (“UCL”) and False Advertising Law (“FAL”), as well as intentional and negligent misrepresentation. The complaint alleged that the defendant’s use of the term “handcrafted” on its Jim Beam Bourbon bottle labels are misleading because the bourbon is not handcrafted. The defendant moved to dismiss the complaint, arguing that the plaintiff had failed to state a cause of action because he had not alleged facts to show that the label would mislead a reasonable consumer. The court agreed and granted the defendant’s motion to dismiss, stating:

“A reasonable consumer wouldn’t interpret the word ‘handcrafted’ on a bourbon bottle to mean that the product is literally created by a hand process rather than by a machine. Thus, it isn’t reasonably interpreted as a statement of objective fact. [Citation.] And if Jim Beam uses the term ‘handcrafted’ to appeal to consumers’ loose association of the term with higher quality manufacturing and high-end products, as [plaintiff] suggests, then it isn’t specific and measurable. [Citation.] Instead it’s generalized, vague, and unspecified and therefore inactionable as mere puffery.” Id., at 1044 (internal quotations omitted).

Here, as in Welk, the term “artisan” is a vague, generalized statement of quality that is not specific or measurable and that cannot reasonably be interpreted as a statement of objective fact. Rather, it is mere puffery and non-actionable as a matter of law. Claims under California’s UCL (Bus. & Prof. Code §17200), FAL (Bus. & Prof. Code §17500), and Consumer Legal Remedies Act (“CLRA”) (Civ. Code §1750) that representations are misleading are governed by the “reasonable consumer test,” which asks whether “members of the public are likely to be deceived.” Williams v. Gerber Products Company (9th Cir. 2008) 552 F.3d 934, 938. In this case, no reasonable consumer could plausibly be misled by defendant’s use of the term “artisan” to believe the Product is “handcrafted . . . in small batches” (FAC, ¶1) and not through “mechanization” (FAC, ¶8) given the normal experience in the market place where products are commonly labeled “handmade” or “handcrafted.”

As plaintiff correctly argues, whether a business practice is deceptive is usually a question of fact not appropriate for decision on demurrer. See, Linear Technology Corporation v. Applied Materials, Inc. (2007) 152 Cal.App.4th 115, 134-135 (“Whether a practice is deceptive, fraudulent, or unfair is generally a question of fact which requires consideration and weighing of evidence from both sides and which usually cannot be made on demurrer.”); Committee on Children’s Television, Inc. v. General Foods Corporation (1983) 35 Cal.3d 197, 214 (finding demurrer inappropriate in case where parents alleged deceptive advertising of sugar cereals). However, it is appropriate to make such a determination on demurrer where, as in this case, “the facts alleged in the complaint . . . compel the conclusion as a matter of law that consumers are not likely to be deceived.” Chapman v. Skype, Inc. (2013) 220 Cal.App.4th 217, 226-227; see also, Williams, supra, 552 F.3d at 938-939 (holding that courts can conclude as a matter of law that members of the public are not likely to be deceived on motion to dismiss UCL, FAL, and CLRA claims).

Plaintiff’s UCL, FAL, and CLRA causes of action all fail because she has not alleged any actionable misrepresentation based on defendant’s use of the term “artisan” on the Product’s labels. The term “artisan” is non-actionable puffery. No reasonable consumer could be deceived by the term. Plaintiff’s breach of express warranty cause of action fails for the same reason. Because plaintiff’s unjust enrichment claim is entirely derivative of her other claims, it too fails as a matter of law.

Based on the foregoing, the Court will sustain defendant’s demurrer without leave to amend. “If there is a reasonable possibility that the defect in a complaint can be cured by amendment, it is an abuse of discretion to sustain a demurer without leave to amend. [Citation.] The burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended.” Hendy v. Losse (1991) 54 Cal.3d 723, 742; see also, McClain v. Octagon Plaza, LLC (2008) 159 Cal.App.4th 784, 792 (“the plaintiff [has the burden] to show what facts he or she could plead to cure the existing defects in the complaint”). Here, plaintiff has not made any attempt to explain how she might amend her FAC to state a cause of action against defendant.