Beasley v. Lucky Stores, Inc.

• Court: District Court, N.D. California
• Decided: January 24, 2020
• Docket: 3:18-cv-07144
• Status: Unknown

Opinion

1 2 3 IN THE UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 6 MARK BEASLEY, Case No. 18-cv-07144-MMC

7 Plaintiff, ORDER DENYING DEFENDANTS' 8 v. MOTION TO DISMISS

9 LUCKY STORES, INC., et al., 10 Defendants.

11 Before the Court is defendants’ Motion, filed October 25, 2019, to Dismiss 12 Plaintiff’s Second Amended Complaint. Plaintiff Mark Beasley (“Beasley”) has filed 13 opposition, to which defendants have replied. Having read and considered the papers 14 filed in support of and in opposition to the motion, the Court rules as follows.1 15 BACKGROUND 16 The instant case is a putative class action lawsuit brought by Beasley, a California 17 citizen, as a purchaser and consumer of Coffee-mate, a line of coffee-creamer products. 18 Beasley alleges defendant Nestlé USA, Inc. (“Nestlé”) “manufactures, markets, and sells” 19 Coffee-mate. (See Second Am. Compl. (“SAC”), filed October 4, 2019, ¶ 3.) He also 20 alleges that four retailers, namely, defendants Lucky Stores, Inc. (“Lucky”), Save Mart 21 Super Markets (“Save Mart”), Save Mart Companies, Inc. (“SMCI”), and The Kroger 22 Company (“Kroger”), “sold Coffee-mate at their grocery stores throughout California” (see 23 id. ¶ 4) and that, during the class period, he purchased Coffee-mate from grocery stores 24 owned by said retailers. 25 According to Beasley, all flavors of Coffee-mate, other than the “‘Natural Bliss’ 26 line” (see id. ¶ 78), contained, during the class period, an “[a]rtificial” form of trans fat (see 27 1 id. ¶ 18) and “unsafe food additive” (see id. ¶ 3), specifically, partially hydrogenated oil 2 (“PHO”), and during the class period, Coffee-mate’s labels bore “unauthorized nutrient 3 content claims” (see id. ¶ 81), namely, “0g Trans Fat” and/or “IT’S GOOD TO KNOW: 0g 4 TRANS FAT/SERV” (see id. ¶ 78; see also id. ¶¶ 6, 81), which language, Beasley 5 alleges, “was part of an intentional, long-term campaign to deceptively market Coffee- 6 mate as healthful and free of trans fat” (see id. ¶ 79). 7 Based on the above allegations, Beasley, on October 29, 2018, filed his initial 8 complaint in the Superior Court of California, in and for the County of San Francisco. 9 On November 26, 2018, defendants removed the case to federal court. 10 On December 19, 2018, Beasley filed his First Amended Complaint (“FAC”), in 11 which he challenged defendants’ manufacture and distribution of Coffee-mate, on the 12 basis that (1) it contains PHO (“use claims”) and (2) it was falsely labeled with “0g Trans 13 Fat” statements (“labeling claims”). 14 By order filed September 16, 2019, the Court dismissed the use claims with 15 prejudice, finding those claims barred by the doctrine of conflict preemption, and 16 dismissed the labeling claims with leave to amend, finding the allegations in support 17 thereof deficient on a number of grounds. 18 On October 4, 2019, Beasley filed the SAC, in which he asserts the following four 19 Causes of Action: (1) “Unfair Competition Law [Cal.] Bus. & Prof. Code §§ 17200 et seq.,” 20 (2) “California False Advertising Law, [Cal.] Bus. & Prof. Code §§ 17500 et seq.,” (3) 21 “Breach of Express Warranty,” and (4) “California Consumer Legal Remedies Act, Cal. 22 Civ. Code §§ 1750 et seq.”2 Beasley brings these claims both individually and on behalf 23 of the following putative class: “[a]ll citizens of California who purchased in California, 24 between January 1, 2010 and December 31, 2014, Coffee-mate containing the nutrient 25 content claim “0g Trans Fat” and containing partially hydrogenated oil.” (See id. ¶ 119.) 26

27 2 The First, Second, and Fourth Causes of Action are brought against all 1 LEGAL STANDARD 2 Dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure “can be 3 based on the lack of a cognizable legal theory or the absence of sufficient facts alleged 4 under a cognizable legal theory.” See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 5 699 (9th Cir. 1990). Rule 8(a)(2), however, “requires only ‘a short and plain statement of 6 the claim showing that the pleader is entitled to relief.’” See Bell Atlantic Corp. v. 7 Twombly, 550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)(2)). Consequently, “a 8 complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual 9 allegations.” See id. Nonetheless, “a plaintiff's obligation to provide the grounds of his 10 entitlement to relief requires more than labels and conclusions, and a formulaic recitation 11 of the elements of a cause of action will not do.” See id. (internal quotation, citation, and 12 alteration omitted). 13 In analyzing a motion to dismiss, a district court must accept as true all material 14 allegations in the complaint, and construe them in the light most favorable to the 15 nonmoving party. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). “To 16 survive a motion to dismiss, a complaint must contain sufficient factual material, accepted 17 as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 18 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “Factual allegations must be 19 enough to raise a right to relief above the speculative level[.]” Twombly, 550 U.S. at 555. 20 Courts "are not bound to accept as true a legal conclusion couched as a factual 21 allegation." See Iqbal, 556 U.S. at 678 (internal quotation and citation omitted). 22 DISCUSSION 23 By the instant motion, defendants argue that (1) Beasley has failed to adequately 24 allege statutory standing to bring his Unfair Competition Law (“UCL”), False Advertising 25 Law (“FAL”), and Consumer Legal Remedies Act (“CLRA”) claims; (2) each of Beasley’s 26 claims is time-barred; and (3) none of Beasley’s claims meets the heightened pleading 27 requirements for fraud under Rule 9(b) of the Federal Rules of Civil Procedure. 1 A. Standing: Reliance Element 2 In the Court’s order dismissing the FAC (hereinafter, “September 16 Order”), the 3 Court found the FAC failed to adequately allege Beasley’s reliance on the “0g Trans Fat” 4 label and, consequently, Beasley lacked statutory standing to bring his UCL and FAL 5 claims. By the instant motion, defendants challenge, on that ground, Beasley’s statutory 6 standing to bring his UCL and FAL claims, as well as his CLRA claim. 7 To have standing to pursue a claim under the UCL, FAL, or CLRA, a party must: 8 “(1) establish a loss or deprivation of money or property sufficient to qualify as injury in 9 fact, i.e., economic injury[;] and (2) show that that economic injury was the result of, i.e., 10 caused by, the unfair business practice or false advertising that is the gravamen of the 11 claim.” See Kwikset Corp. v. Sup. Ct., 51 Cal. 4th 310, 322 (2011) (emphasis omitted); 12 Reid v. Johnson & Johnson, 780 F.3d 952, 958 (9th Cir. 2015). With respect to the 13 second element,3 a plaintiff “proceeding on a claim of misrepresentation . . . must 14 demonstrate actual reliance on the allegedly deceptive or misleading statements.” 15 Kwikset Corp., 51 Cal. 4th at 326-27 (internal quotation and citation omitted) (explaining 16 plaintiff “must show that the misrepresentation was an immediate cause of the injury- 17 producing conduct” (internal quotation and citation omitted)). 18 Here, defendants contend, Beasley has, in their words, alleged “he was not aware 19 that trans fat was harmful . . . until January 2017” (see Mot. at 10:2 (citing SAC ¶¶ 76, 20 77)), and, consequently, that neither the “amount of trans fat in Coffee-mate” nor the “0g 21 Trans Fat” label could have been “material” to his purchasing decisions (see id. at 10:6- 22 7). 23 Beasley argues defendants are misreading his allegations. Although, in the cited 24 paragraphs, Beasley alleges he “first discovered [d]efendants’ unlawful acts . . . on 25 January 20, 2017, when he learned that Coffee-mate contained an unsafe food additive” 26 3 Defendants do not contend Beasley failed to allege the first element, economic 27 injury, and the Court finds such element satisfied. (See SAC ¶ 117 (alleging Beasley 1 (see SAC ¶ 76 (emphasis added)) and that defendants “actively impeded [his] ability to 2 discover the dangerous effects of Coffee-mate” (see id. ¶ 77 (emphasis added)), Beasley 3 explains his intent was to allege his lack of knowledge as to the presence of trans fat in 4 Coffee-mate, not a lack of knowledge as to the harmful effects of trans fat. Construing 5 any arguable ambiguity in the light most favorable to Beasley, the Court finds the cited 6 paragraphs do not preclude a showing of reliance. 7 Defendants next argue Beasley “does not allege a single fact to plausibly 8 demonstrate that a statement regarding the amount of trans fat [in Coffee-mate] would 9 have impacted his purchasing decision.” (See Mot. at 10:14-15.) 10 In its September 16 Order, the Court found insufficient Beasley’s allegation that he 11 “was seeking a product made with safe and lawful ingredients.” (See Sept. 16 Order at 12 21:15-16 (quoting FAC ¶ 140).) In the SAC, Beasley now alleges that “[w]hen purchasing 13 Coffee-mate, [he] sought a product that complied with federal and state law and did not 14 contain harmful ingredients like trans fat” (see SAC ¶ 114), that “Nestle’s ‘0g Trans Fat’ 15 claim” was “a substantial factor in his decision to continue purchasing Coffee-mate rather 16 than other coffee creamers” (see id. ¶ 74), and that he “never would have purchased 17 [Coffee-mate] had he known it was misbranded and contained a prominent false 18 statement on the front of its label about its content” (see id. ¶ 116). 19 The Court finds the above-cited new allegations sufficient to show Beasley sought 20 a product free of trans fat and that his decision to purchase Coffee-mate was made in 21 reliance on the “0g Trans Fat” label. See Hawkins v. Kroger Co., 906 F.3d 763 (2018) 22 (holding plaintiff adequately pleaded reliance where she alleged she “relied on 23 Defendant's ‘0g trans fat’ claim as a substantial factor in her purchases” and purchased 24 the defendant’s products “believing they had the qualities she sought based on the 25 Products' deceptive labeling.”) 26 Accordingly, the Court finds Beasley has adequately pleaded statutory standing to 27 bring his claims under the UCL, FAL, and CLRA. 1 B. Timeliness 2 Defendants contend Beasley’s claims are time-barred because each accrued 3 outside the applicable limitations period. 4 Each of Beasley’s claims is, depending on the particular statute under which it is 5 brought, subject to either a three-year or four-year limitations period. See Cal. Code Civ. 6 Proc. § 338(a) (providing three-year limitations period for FAL claims); Cal. Civ. Code 7 § 1783 (providing three-year limitations period for CLRA claims); Cal. Bus. & Prof. Code 8 § 17208 (providing four-year limitations period for UCL claims); Cal. Com. Code 9 § 2725(1) (providing four-year limitations period for breach of express warranty claims). 10 As Beasley filed his initial complaint on October 29, 2018, the limitations period 11 extends back three years, to October 29, 2015, for his FAL and CLRA claims, and four 12 years, to October 29, 2014, for his UCL and breach of warranty claims. 13 Beasley alleges “[his] best estimate of the last time he purchased Coffee-mate 14 with an unlawful label claim was in early 2014.” (See SAC ¶ 72; see also id. ¶ 82 15 (alleging Coffee-mate products with challenged “0g Trans Fat” label were “on store 16 shelves” until “approximately late 2013 or early 2014”).) Although the phrase “early 2014” 17 is somewhat vague, the Court finds the “early” part of 2014 predates October 2014. 18 Accordingly, absent tolling or delayed accrual, all of Beasley’s claims are time- 19 barred. In that regard, Beasley relies on the following three theories. 20 1. American Pipe Tolling 21 Beasley first contends the running of the applicable statutes of limitations was 22 tolled pursuant to the rule announced in American Pipe & Construction Co. v. Utah, 414 23 U.S. 538 (1974). 24 In American Pipe, the Supreme Court held “the commencement of a class action 25 suspends the applicable statute of limitations as to all asserted members of the class who 26 would have been parties had the suit been permitted to continue as a class action.” Id. at 27 554. American Pipe tolling “lasts from the day a class claim is asserted until the day the 1 Cal. App. 4th 1454, 1464 (2015). Although the “claims in the first action need not 2 necessarily be identical to the ones in the subsequent action,” they must be 3 “substantively similar, based on the same claims and subject matter and similar 4 evidence.” Id. at 1466. 5 Here, Beasley argues, the running of the applicable statutes of limitations was 6 tolled by the commencement of Backus v. Nestle USA, Inc., Case No. 3:15-cv-1963- 7 MMC (N.D. Cal.) (hereinafter, “Backus”), a putative class action brought in federal district 8 court, as Beasley “was a member of the [Backus] class and sues on the same claims.” 9 (See Opp’n at 11:23.) 4 In response, defendants contend California law does not 10 recognize cross-jurisdictional tolling, i.e., a situation where, as here, the class action is 11 filed in a jurisdiction other than California. 12 As all of Beasley’s claims are brought under California law, the Court must 13 consider whether the California Supreme Court would recognize cross-jurisdictional 14 tolling. See Centaur Classic Convertible Arbitrage Fund Ltd. V. Countrywide Fin. Corp., 15 878 F. Supp. 2d 1009, 1015 (C.D. Cal. 2011) (“Federal courts addressing state law 16 claims must apply law state law statutes of limitation and state law applies to the question 17 of tolling state claims.”). The Ninth Circuit, noting the California Supreme Court has not 18 adopted cross-jurisdictional tolling, has held:

19 [T]he weight of authority and California’s interest in managing its own 20 judicial system counsel us not to import the doctrine of cross-jurisdictional tolling into California law. The rule of American Pipe—which allows tolling 21 within the federal court system in federal question class actions—does not mandate cross-jurisdictional tolling as a matter of state procedure. 22 See Clemens v. Daimler Chrysler Corp., 530 F.3d 852, 860 (9th Cir. 2008) (finding filing 23 24 4 Beasley’s unopposed request for judicial notice of the initial complaint in and 25 docket report for Backus, as well as the Ninth’s Circuit order dismissing Backus’s appeal in Backus v. Nestle USA, Inc., Case No. 16-15389 (9th Cir.) is hereby GRANTED. See 26 Minor v. Fedex Office & Print Servs., Inc., 182 F. Supp. 3d 966, 974 (N.D. Cal. 2016) (noting “[p]roper subjects of judicial notice include court documents in the public record 27 and documents filed in other courts” (citing Holder v. Holder, 305 F.3d 854, 866 (9th Cir. 1 of Illinois class action did not toll statute as to California state law claims subsequently 2 brought in Central District of California); see also Centaur Classic, 878 F. Supp. 2d at 3 1017 (holding “California does not recognize cross-jurisdictional tolling”; declining to toll 4 statute where class action filed in federal district court). 5 As cross-jurisdictional tolling is not recognized under California law, the Court 6 concludes the filing of the Backus action in the Northern District of California did not toll 7 the statutes of limitations applicable to Beasley’s claims. 8 Accordingly, Beasley is not entitled to American Pipe tolling.5 9 2. Fraudulent Concealment 10 Second, Beasley relies on the doctrine of fraudulent concealment. Under 11 California law, fraudulent concealment tolls the applicable statute of limitations for the 12 period during which the plaintiff does not discover and could not reasonably discover his 13 claim due to “the defendant’s fraud in concealing a cause of action against him.” See 14 Bernson v. Browning–Ferris Indus. of California, Inc., 7 Cal. 4th 926, 931 (1994) (internal 15 quotation and citation omitted). 16 The Ninth Circuit has held fraudulent concealment requires “active conduct by a 17 defendant, above and beyond the wrongdoing upon which the plaintiff’s claim is filed.” 18 See Guerrero v. Gates, 442 F.3d 697, 706 (9th Cir. 2006). Similarly, a California Court of 19 Appeal has found fraudulent concealment inapplicable where a defendant “merely” fails 20 to disclose “evidence that the wrong had been committed.” See Mark K. v. Roman 21 Catholic Archbishop, 67 Cal. App. 4th 603, 613 (1998) (noting, if courts were to find 22 otherwise, “any time a tortfeasor failed to disclose evidence that would demonstrate its 23 liability in tort, the statute of limitations would be tolled under the doctrine of 24 concealment”). 25 Here, although Beasley alleges Nestlé “actively impeded [his] ability to discover 26 5 In light of such ruling, the Court does not address herein the issue of whether 27 China Agritech, Inc. v. Resh, 138 S. Ct. 1800 (2018) bars the application of American 1 the dangerous effects of Coffee-mate” (see SAC ¶ 77), the only “active imped[ing]” 2 alleged is Nestlé’s failure to disclose the alleged false labelling (see id.), which lack of 3 disclosure, as discussed above, is insufficient to support a finding of fraudulent 4 concealment. See Guerrero, 442 F.3d at 706; Mark K., 67 Cal. App. 4th at 613.6 5 Accordingly, the Court finds Beasley is not entitled to tolling under the doctrine of 6 fraudulent concealment. 7 3. Delayed Discovery 8 Lastly, Beasley argues, he has alleged timely filing under the doctrine of delayed 9 discovery. 10 Under California law, “to rely on the discovery rule for delayed accrual of a cause 11 of action,” the plaintiff “must specifically plead facts to show (1) the time and manner of 12 discovery and (2) the inability to have made earlier discovery despite reasonable 13 diligence.” Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 808 (2005) (internal 14 quotation, citation, and emphasis omitted). As to the second element, “[t]he discovery 15 rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause 16 of action.” Id. at 807 (explaining, “plaintiffs are required to conduct a reasonable 17 investigation after becoming aware of an injury, and are charged with knowledge of the 18 information that would have been revealed by such an investigation”). 19 In its September 16 Order, the Court found Beasley had failed to plead the manner 20 of discovery, and further found Beasley’s alleged lack of expertise, standing alone, was 21 insufficient to support his assertion that he could not have discovered earlier the facts 22 underlying his claims. 23 In the SAC, as in the FAC, Beasley alleges he “first discovered” defendants’ 24 unlawful conduct “on January 20, 2017.” (See FAC ¶ 73; SAC ¶ 76.) He now adds that 25

26 6 Sloan v. General Motors LLC, 287 F. Supp. 3d 840 (2018), on which Beasley relies, is distinguishable on its facts. See id. at 888 (finding statute tolled as to implied 27 warranty claims where automobile dealerships told owners their vehicles’ excessive oil 1 he made this discovery “in the course of discussions at his house with his counsel here, 2 who was at the time representing his wife in a class action.” (See SAC ¶ 76.) In light 3 thereof, defendants no longer challenge Beasley’s allegations as to the manner of 4 discovery. Defendants continue, however, to contend Beasley has not adequately 5 alleged his inability to discover his claims earlier. For the reasons set forth below, the 6 Court disagrees. 7 First, defendants argue, Beasley should have discovered Coffee-mate contains 8 trans fat because “the presence of PHO was disclosed on the product label in the 9 ingredient statement.” (See Mot. at 4:11.) The SAC, however, contains no allegations as 10 to the ingredient statement. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 11 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (holding district court, in ruling on Rule 12(b)(6) 12 motion, ordinarily “may not consider any material beyond the pleadings”). 13 Defendants next point to Beasley’s allegations that “doctors’ associations and 14 other societies worked to publicize findings about PHO.” (See Mot. at 4:7-8 (citing SAC 15 ¶ 93).) Beasley, however, has not alleged he saw or otherwise was made aware of any 16 such publication, and “there is no rule of ‘constructive suspicion,’ to trigger the statute of 17 limitations simply when the dangers of a product are publicized.” See Unruh-Haxton v. 18 Regents of Univ. of California, 162 Cal. App. 4th 343, 359, 364 (2008), as modified (May 19 15, 2008) (holding the “statute of limitations does not begin to run when some members 20 of the public have a suspicion of wrongdoing, but only once the plaintiff has a suspicion of 21 wrongdoing” (internal quotation and citation omitted)). 22 Lastly, Beasley has alleged Nestlé engaged in the challenged “labeling practices” 23 for “many years” (see SAC ¶ 77), that he “has no training” as to “nutrient content claim 24 regulations promulgated by the FDA” (see id. ¶ 107), and that he “reasonably relied on 25 the assumption that Defendants would not manufacture and sell a product with 26 prominent, false, unauthorized, and unlawful statements about its ingredients” (see id.). 27 Read in the light most favorable to Beasley, the Court understands such allegations to 1 law for such an extended period of time or would not have been allowed to do so without 2 regulatory repercussions. 3 Accordingly, the Court finds Beasley has adequately pleaded delayed discovery. 4 C. Rule 9(b) 5 In its September 16 Order, the Court found the FAC failed to comply with the 6 heightened pleading requirements of Rule 9(b). “To satisfy Rule 9(b), a pleading must 7 identify the who, what, when, where, and how of the misconduct charged, as well as what 8 is false or misleading about [the purportedly fraudulent] statement, and why it is false.” 9 Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011) (alteration 10 in original; internal quotation and citation omitted). Here, defendants argue, the SAC, like 11 the FAC, fails to state with sufficient specificity (1) when Coffee-mate contained PHO or 12 was labeled with the “0g Trans Fat” claim, (2) when Beasley purchased Coffee-mate, (3) 13 when Beasley relied on the “0g Trans Fat” claim, and (4) where he purchased Coffee- 14 mate. For the reasons set forth below, the Court finds the SAC, although not a model 15 pleading, is “specific enough to give defendants notice of the particular misconduct which 16 is alleged to constitute the fraud charged.” See Swartz v. KPMG LLP, 476 F.3d 756, 764 17 (9th Cir. 2007). 18 First, the Court finds Beasley has cured the deficiencies the Court previously 19 noted as to when Coffee-mate contained PHO and when it was labeled with the “0g 20 Trans Fat” claim. (Compare SAC ¶ 78 (“Throughout the class period, Coffee-mate, in all 21 of its regular liquid and powder sizes and flavors, [with one exception not relevant to 22 Beasley’s claims], was made with PHO yet contained the deceptive nutrient content claim 23 ‘0g Trans Fat’ prominently displayed on the front of the bottle.”) with FAC ¶ 76 (“During 24 much of the class period, Coffee-mate was made with PHO yet contained the deceptive 25 health and wellness claim ‘0g Trans Fat’.”). 26 Second, Beasley has cured the previously noted deficiencies as to when he 27 purchased Coffee-mate. In the September 16 Order, the Court found that, given the 1 that he “repeatedly” purchased Coffee-mate (see FAC ¶ 19) and his allegation that he 2 purchased Coffee-mate “during the class period once per month” (see id. ¶ 71) were too 3 general. In the SAC, the class period has been shortened (see SAC ¶ 119 (alleging four- 4 year class period beginning January 1, 2010, and ending December 31, 2014)), and, 5 more importantly, the allegations provide greater specificity as to “when” Beasley’s 6 purchases were made (see SAC ¶ 82 (alleging Beasley purchased Powdered Coffee- 7 mate “two to four times per year during the entire Class Period”); id. ¶ 83 (alleging 8 Beasley purchased Liquid Coffee-mate “at a rate of one or two bottles per month” from 9 “about 2007 to approximately late 2013”)). 10 Third, Beasley has cured the previously noted deficiencies as to when he relied on 11 the “0g Trans Fat” label. In the FAC, Beasley alleged he relied on the “0g Trans Fat” 12 label for “some” of his purchases. (See FAC ¶ 75.) He now alleges he “first purchased 13 Coffee-mate in packaging bearing the ‘0g Trans Fat’ claim shortly after Nestle began 14 using the claim[,] . . . believed to be in 2006 or 2007” (see SAC ¶ 75), and that he relied 15 on said label as a “substantial factor in his decision to continue purchasing Coffee-mate 16 rather than other coffee creamers” (see id. ¶ 74). 17 Fourth, and lastly, Beasley has cured the previously noted deficiencies as to 18 where he made an allegedly actionable purchase of Coffee-mate. In the FAC, Beasley 19 failed to allege “from which retailer(s) he purchased Coffee-mate in any such instance” 20 (see Order, filed September 16, 2019, at 14:20). He now alleges one such instance, 21 namely, the occasion on which he “purchased Coffee-mate with an unlawful label claim” 22 in “early 2014” (see SAC ¶ 72) at the “Foods Co located at 345 Williams Ave., San 23 Francisco, CA 94124” (see id. ¶ 71). 24 In sum, the SAC, read in the light most favorable to Beasley, adequately alleges 25 the “the who, what, when, where, and how of the misconduct charged,” see Cafasso, 637 26 F.3d at 1055, and, accordingly, satisfies the requirements of Rule 9(b). 27 // 4 CONCLUSION 2 For the reasons stated above, defendants’ motion to dismiss the Second 3 || Amended Complaint is hereby DENIED. 4 IT IS SO ORDERED. 5 6 || Dated: January 24, 2020 , . AKINE M. CHESNEY 7 Unitéd States District Judge 8 9 10 11 12

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