Daniels v. Eagle Family Foods Group LLC

• Court: District Court, E.D. California
• Decided: July 17, 2025
• Docket: 2:25-cv-00616
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEYONNA DANIELS, No. 2:25-cv-00616-SCR 12 Plaintiffs, 13 v. ORDER 14 EAGLE FAMILY FOODS GROUP, LLC, 15 Defendant. 16 17 The parties have consented to the jurisdiction of a United States Magistrate Judge for all 18 further proceedings pursuant to 28 U.S.C. § 636(c)(1). ECF No. 17. Before the Court is 19 Defendant’s Motion to Dismiss (ECF No. 12), which seeks dismissal of the action pursuant to 20 Federal Rules of Civil Procedure 12(b)(1), 12(b)(6) and 9(b). The motion has been fully briefed 21 (ECF Nos. 18, 21) and the Court heard oral argument on June 5, 2025. The Court will now grant 22 the motion to dismiss and dismiss the Complaint without leave to amend. 23 I. Background and Procedural History 24 Plaintiff filed this action on February 21, 2025, as a putative class action. ECF No. 1. 25 Plaintiff brings this action individually and on behalf of all others similarly situated against Eagle 26 Family Foods (“Eagle Foods”), which manufactures, labels, markets, and sells “dry dinner mixes, 27 Hamburger Helper and Tuna Helper” across the United States. Id. at ¶ 1. Plaintiff alleges 28 Hamburger Helper and Tuna Helper (collectively the “Product”) make representations on their 1 packaging meant to give the impression they are made with more than a de minimis amount of 2 real cheese. Id. at ¶ 6. Plaintiff contends the Product packaging makes cheese “a characterizing 3 ingredient in each Product when, in reality, the Product contains a de minimus amount of cheese, 4 less than 2%.” Id. at ¶¶ 7-8. 5 Plaintiff alleges she is a resident of Sacramento and has “purchased Hamburger Helper 6 products, including the Cheeseburger Macaroni product, numerous times during the class period.” 7 Id. at 15. Plaintiff alleges she read and relied on the Product packaging, including the “Made 8 with Real Cheese” phrase and picture of a “large bowl of cheesy pasta.” Id. at 16. Plaintiff 9 claims she paid more for the Product than she would have had she known of the false and 10 misleading representation and thus suffered an injury in fact. Id. at ¶¶ 17-18. The complaint 11 contains three counts: 1) violation of California’s Consumers Legal Remedies Act (“CLRA”), 12 Cal. Civ. Code §§ 1750 et seq.; 2) violation of California’s Unfair Competition Law (“UCL”), 13 Cal. Bus. & Prof. Code §§ 17200, et seq.; and 3) Breach of Express Warranty under California 14 Commercial Code § 2313. Id. at ¶¶ 95-127. 15 On April 21, 2025, Defendant filed a motion to dismiss. ECF No. 12. Defendant 16 advances three primary arguments: 1) Plaintiff lacks standing as she has not suffered an injury in 17 fact; 2) Plaintiff’s claims are preempted by FDA regulations on labelling requirements; and 3) 18 Plaintiff fails to state a claim. ECF No. 12 at 2. Plaintiff filed an opposition brief, and Defendant 19 a reply. ECF Nos. 18, 21. The motion was heard on June 5, 2025. 20 II. Legal Standards 21 A. Motion to Dismiss under Rule 12(b)(1) 22 A motion under Rule 12(b)(1) challenges the court's subject-matter jurisdiction over the 23 action. Such jurisdictional challenge can be either facial or factual. Safe Air for Everyone v. 24 Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the challenger asserts that the 25 allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. 26 By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by 27 themselves, would otherwise invoke federal jurisdiction.” Id. In resolving a factual attack on 28 jurisdiction, the court may review evidence beyond the complaint without converting the motion 1 to dismiss into a motion for summary judgment. Id. If a facial challenge is made, the court 2 presumes the truth of a plaintiff's allegations and draws all reasonable inferences therefrom. 3 Williams v. A&M Bros, LLC, 2023 WL 4747481 (E.D. Cal. July 25, 2023) (citation and quotation 4 omitted). 5 B. Motion to Dismiss under Rule 12(b)(6) 6 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency 7 of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). 8 “Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts 9 alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 10 (9th Cir. 1990). A plaintiff is required to allege “enough facts to state a claim to relief that is 11 plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial 12 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 13 inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 14 678 (2009). 15 In determining whether a complaint states a claim on which relief may be granted, the court 16 accepts as true all well-pleaded factual allegations in the complaint and construes the allegations in 17 the light most favorable to the plaintiff. See Walker v. Fred Meyer, Inc., 953 F.3d 1082, 1086 (9th 18 Cir. 2020). However, the court need not assume the truth of legal conclusions cast in the form of 19 factual allegations. See Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). While Rule 20 8(a) does not require detailed factual allegations, “it demands more than an unadorned, the- 21 defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A pleading is insufficient 22 if it offers mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of 23 action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the 24 elements of a cause of action, supported by mere conclusory statements, do not suffice.”). It is 25 inappropriate to assume that the plaintiff “can prove facts that it has not alleged or that the 26 defendants have violated the ... laws in ways that have not been alleged.” Associated Gen. 27 Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). 28 1 C. Rule 9(b) 2 Claims of fraud must be pled with particularity pursuant to Federal Rule of Civil Procedure 3 9(b). Rule 9(b)’s particularity requirement applies to state law causes of action. See Vess v. Ciba- 4 Geigy Corp., 307 F.3d 1097, 1103 (9th Cir. 2003). This is true even where the Court’s jurisdiction 5 is based on diversity. Id. Even where fraud is not a necessary element of a claim, if the claim is 6 “grounded in fraud” or “sound[s] in fraud,” the “pleading of the claim as a whole must satisfy the 7 particularity requirement of Rule 9(b).” Id. at 1103-04. 8 III. Analysis 9 A. Standing 10 Defendant argues that Plaintiff lacks individual standing for injunctive relief because there 11 is no showing of a real or immediate threat that Plaintiff will be wronged. ECF No. 12 at 14. 12 Defendant also argues that the injunctive relief Plaintiff may seek, such as being able to buy the 13 product at a lower price, or an ingredient change, is not plausible as the Court cannot set prices or 14 order a change of ingredients. Defendant concludes: “And so, if Plaintiff is willing to buy the 15 Product again, but not at the existing price or with the existing ingredients, the Court is unable to 16 offer an injunctive relief.” Id. at 15-16. 17 Plaintiff contends she “has Article III standing to pursue claims for injunctive relief where 18 she expressly alleges a concrete injury and that she would buy the Products again if she can rely on 19 Defendant’s representations, but that she does not know (and may never) how much cheese is in 20 the Products.” ECF No. 18 at 7. In effect, the injunction Plaintiff requests would require Eagle 21 Foods to remove the “Made with Real Cheese” label, and offer a corresponding price reduction. 22 ECF No. 18 at 10. 23 However, the Court need not decide whether Plaintiff has standing to pursue prospective 24 injunctive relief because—at a minimum—she has standing to pursue damages (and possibly the 25 equitable relief of disgorgement) based on past economic harm. “To establish standing to bring a 26 claim under these statutes [UCL and CLRA], plaintiffs must meet an economic injury-in-fact 27 requirement, which demands no more than the corresponding requirement under Article III of the 28 U.S. Constitution.” Reid v. Johnson & Johnson, 780 F.3d 952, 958 (9th Cir. 2015). “In a false 1 advertising case, plaintiffs meet this requirement if they show that, by relying on a 2 misrepresentation on a product label, they ‘paid more for a product than they otherwise would have 3 paid, or bought it when they otherwise would not have done so.’” Id. (internal citation omitted); 4 see also Kwikset Corp. v. Superior Court, 246 P.3d 877, 881 (Cal. 2011) (“[P]laintiffs who can 5 truthfully allege they were deceived by a product's label into spending money to purchase the 6 product, and would not have purchased it otherwise, have ‘lost money or property’ within the 7 meaning of Proposition 64 and have standing to sue.”). Plaintiff makes this allegation at Paragraph 8 17 of the Complaint. Defendant’s standing argument is rejected. 9 B. Whether Plaintiff States a Claim 10 The Court first analyzes whether Plaintiff states a claim under California’s Consumers 11 Legal Remedies Act and Unfair Competition Law, which involve substantially identical legal 12 standards, before analyzing whether Plaintiff states a claim for breach of an express warranty. 13 Because the Court finds that Plaintiff fails to state a claim on which relief can be granted under 14 each cause of action, the Court need not address Defendant’s alternative argument that federal food 15 labeling laws and regulations preempt Plaintiff’s claims. The Court also need not decide whether 16 a Plaintiff suing over allegedly misleading packaging must, as Defendant contends, satisfy Rule 17 9(b)’s heightened pleading standard. 18 1. Consumers Legal Remedies Act and Unfair Competition Law Claims 19 “California’s UCL, FAL, and CLRA require basic fairness in advertising and permit a civil 20 remedy against those who deceive consumers.” Whiteside v. Kimberly Clark Corp., 108 F.4th 771, 21 777 (9th Cir. 2024). To prevail on a claim under the CLRA or UCL, “the plaintiff must show that 22 reasonable consumers are likely to be deceived by the label.” Garza v. Spectrum Brands Pet, LLC, 23 760 F.Supp.3d 1039, 1047 (E.D. Cal. 2024), citing Williams v. Gerber Prods. Co., 552 F.3d 934, 24 938 (9th Cir. 2008). “The reasonable consumer test requires the plaintiff to show that members of 25 the public are likely to be deceived.”1 Garza, 760 F.Supp.3d at 1047 (internal citation and quotation 26 1 California’s consumer protection laws “prohibit not only advertising which is false, but also 27 advertising which, although true, is either actually misleading or which has a capacity, likelihood or tendency to deceive or confuse the public.” Williams, 552 F.3d at 938 (quotation marks, 28 alteration marks, and citations omitted) (emphasis added). 1 omitted). This standard “requires more than a mere possibility that a label might conceivably be 2 misunderstood by some few consumers viewing it in an unreasonable manner.” Ebner v. Fresh, 3 Inc., 838 F.3d 958, 965 (9th Cir. 2016) (internal quotations and citations omitted). “Rather, the 4 reasonable consumer standard requires a probability that a significant portion of the general 5 consuming public or of targeted consumers, acting reasonably in the circumstances, could be 6 misled.” Id. (internal quotations and citations omitted). “Stated another way, a complaint asserting 7 a violation of these laws must allege that the packaging will deceive many consumers, not just that 8 a few might be deceived.” Whiteside, 108 F.4th at 778. 9 “Whether a reasonable consumer would be deceived by a product label is generally a 10 question of fact not amenable to determination on a motion to dismiss.” Fitzhenry-Russell v. Coca- 11 Cola, 2017 WL 4680073, *3 (N.D. Cal. Oct. 18, 2017) (citation omitted). “However, the court 12 may determine, as a matter of law that the alleged violations of the CLRA, UCL, and [False 13 Advertising Law] are simply not plausible.” Garza, 760 F.Supp.3d at 1047, citing Chong v. Nestle 14 Water N. Am., Inc., No. 20-56373, 2021 WL 4938128, at *1 (9th Cir. 2021) (“[T]his Court may 15 conclude on the pleadings that no reasonable consumer would be misled by any of the product 16 labels at issue in this suit.”). 17 Within the Ninth Circuit, evaluation of “packaging for consumer deception claims at the 18 pleading stage[,]” begins with the front label, as consumers are not expected to look beyond 19 unambiguously misleading representations on the front label to determine the truth from the rest of 20 the packaging. Garza, 760 F.Supp.3d 1039, 1048, citing Whiteside, 108 F.4th at 778-82. If the 21 front label is unambiguously deceptive, then the court will not consider the back label at the 22 pleading stage. See McGinity v. Procter & Gamble Co., 69 F.4th 1093, 1098 (9th Cir. 2023) (the 23 front label must be unambiguously deceptive for a defendant to be precluded from insisting that the 24 back label be considered with the front label at the pleading stage). However, if the front label is 25 ambiguous as to the representation at issue, the Court may then turn to the back label to determine 26 whether the product is making a deceptive claim. “[A] front label is ambiguous when reasonable 27 consumers would necessarily require more information before reasonably concluding that the label 28 is making a particular representation.” Whiteside, 108 F.4th at 781. 1 The Complaint contains images of the Product labels at issue, as well as the Product 2 ingredient labels from the back of the box. ECF No. 1 at ¶¶ 47-48. Plaintiff contends she purchased 3 the Hamburger Helper Cheeseburger Macaroni package. Id. at ¶16. That product is described in 4 the lower-left-hand corner of the box as a “pasta & cheese sauce mix with other natural flavors.” 5 Id. at ¶ 47.2 The front of the box also states “Made with Real Cheese” and “creamy & cheesy 6 sauce.” The product ingredient list on the back of the box states that the product contains 2% or 7 less of “cheddar cheese.” Plaintiff has not alleged precisely how much cheese the Product actually 8 contains. 9 The Complaint also makes certain allegations about the health value to consumers of 10 “clean” ingredients like real cheese. ECF No. 1 at ¶¶ 26-41. Plaintiff alleges that consumers “are 11 increasingly drawn to products advertised as made with one or more clean ingredients, which they 12 perceive as containing real ingredients.” Id. at ¶ 29. Plaintiff claims that “studies show that cheese 13 flavors evoke strong emotional responses from consumers” and that cheese is a “significant source 14 of protein.” Id. at ¶¶ 36, 41. As Plaintiff sees it, the idea that the Product contains real cheese—as 15 captured by the front packaging as a whole and the “made with real cheese claim” in particular— 16 is what gives the Product more value than a generic imitator. Id. at ¶¶ 72-73. 17 The Complaint fails to plausibly show that “a significant portion of the general consuming 18 public or of targeted consumers, acting reasonably in the circumstances, could be misled.” Ebner, 19 838 F.3d at 965 (citation omitted). Plaintiff’s argument is that cheese is the characterizing 20 ingredient in the Product and that the Product is accordingly deceptively labeled because it contains 21 only a de minimis amount of cheese. 22 In approaching this argument, the Court begins by determining whether the Product’s front 23 label is unambiguously deceptive. It is certainly not deceptive in any literal or absolute sense. The 24 Product states that it is made with real cheese; it does in fact contain real cheese. And Plaintiff 25 does not allege that when prepared, it is not in fact “cheesy.” Rather, Plaintiff’s theory is that the 26 packaging “unambiguously convey[s] the Products contain more than a de minimis amount of 27 2 Paragraph 47 contains nine different product images. Cheeseburger Macaroni is the first one 28 listed on page 11 of the Complaint. 1 cheese.” ECF No. 18 at 25. However, the Complaint’s allegations do not show that a reasonable 2 consumer would understand that the product unambiguously contains more than a de minimis 3 amount of real cheese. Reasonable consumers would understand that the boxed Product contains 4 dried macaroni and a seasoning packet, and that when cooked (and combined with meat and water 5 or milk), it then contains macaroni, meat, and a cheesy sauce. See ECF No. 1 at ¶ 2. In short, the 6 Product’s front label does not unambiguously oversell the amount or proportion of real cheese in 7 the Product. 8 Given that the Product’s front packaging is not plausibly unambiguously deceptive, 9 reversion to the packaging as a whole is appropriate. Consumers who are curious about the amount 10 of cheese in the Product “would necessarily require more information before reasonably concluding 11 that the label is making a particular representation.” Whiteside, 108 F.4th at 781. That additional 12 information is furnished by the ingredient list on the back of the box, which makes clear that the 13 product contains 2% or less of cheese. Any question about the amount of cheese in the Product is 14 then resolved. A reasonable consumer would not plausibly be misled by the Product for this reason. 15 Plaintiff states in her opposition brief that she was not obligated to consult the ingredient 16 list. ECF No. 18 at 25. But the Court understands consulting the ingredient list to be the point of 17 the Ninth Circuit’s ambiguity/back of the box doctrine in a situation like this one. If an ambiguity 18 on the front packaging of a given product matters to a consumer—in this case, how much cheese is 19 in the Product—and the back packaging resolves that ambiguity, the consumer cannot claim to have 20 been misled. See Puri v. Costco Wholesale Corp., No. 5:21-cv-01202-EJD, 2021 WL 6000078, at 21 *7 (N.D. Cal. Dec. 20, 2021) (“Even if a consumer were concerned that the Product’s coating is 22 not purely chocolate made from primarily cacao bean ingredients, any ‘potential ambiguity could 23 be resolved by the back panel of the products,’ as any ‘reasonable shopper’ would know.”). 24 Similar deceptive packaging claims have been dismissed by other judges within this Court 25 and by other courts. In Garza, 760 F. Supp. 3d 1039, 1045-46 (E.D. Cal. 2024), the plaintiff 26 claimed she was misled by references to “real” chicken or pork on the front of dog chews. 27 Similar to Plaintiff’s claim in this case, the plaintiff in Garza claimed those references suggested 28 that meat was the predominant ingredient. Id. at 1048-49. Another judge of this Court found the 1 package’s front ambiguous, examined the rest of the package, and dismissed the case. Id. at 2 1051. “A reasonable consumer necessarily requiring more information as to the predominance of 3 the meat in the dog chews could simply refer to the full ingredients list on the back label … The 4 Court concludes that in reviewing the entirety of the package a reasonable consumer could not be 5 misled to believing that the first ingredient of the dog chews is meat . . .” Id. So too for a 6 reasonable consumer requiring more information as to the amount of cheese in a Hamburger 7 Helper product. 8 Similarly, in Red v. Kraft Foods, Inc., No. 10-cv-1028-GW, 2012 WL 5504011 (C.D. Cal. 9 Oct. 25, 2012), the plaintiffs challenged a phrase—“Made with Real Vegetables” on cracker 10 packaging—that they conceded to be true. Id. at *2. The court concluded that no reasonable 11 consumer would read “packaging [that] boasts that the crackers are made with real vegetables and 12 depicts vegetables” to mean that the crackers are “healthy and contain[ ] a significant amount of 13 vegetables.” Id. at *3 (emphasis in original). The court explained, “the product is a box of 14 crackers, and a reasonable consumer will be familiar with the fact of life that a cracker is not 15 composed of primarily fresh vegetables.” Id. Similar logic applies here: The Product is a box of 16 macaroni with a seasoning packet that can be constituted into a cheesy meal, “and a reasonable 17 consumer will be familiar with the fact” that such a product “is not composed primarily” of real 18 cheese. 19 Another case in the “made with real cheese” category is Lemke v. Kraft Heinz Food Co., 20 No. 21-cv-278-wmc, 2022 WL 1442922 (W.D. Wis. May 6, 2022). There, the plaintiff alleged the 21 label on Bagel Bites was misleading because it represented that the bagels were made with real 22 mozzarella cheese and tomato sauce. The front of the package said “mozzarella cheese” in bold 23 and also “made with real cheese.” The back of the package described a “cheese blend” consisting 24 of “part-skim mozzarella cheese,” “modified food starch,” and “skim milk.” The court looked to 25 federal regulations that defined mozzarella cheese and stated it may include “clotting enzymes” 26 and “salt,” and said that “part-skim mozzarella is nevertheless mozzarella cheese under current, 27 preemptive FDA law, or, at least, plaintiff has failed to plausibly allege that it is not.” Id. at *4. 28 The court also noted there was no representation that the product was “100%” or “only” mozzarella 1 cheese. Id. at 3. The court granted the motion to dismiss and found that a reasonable consumer 2 would not be misled. The outcome here is perhaps even clearer because the Product’s ingredient 3 list simply includes “cheddar cheese,” not a composite of ingredients that amount to cheese only 4 under federal regulations. 5 Ultimately, the Court’s analysis here turns in large part on the character of the Product itself: 6 a food that when prepared primarily includes pasta and some kind of meat, even if “cheese” or 7 “cheesiness” characterizes that food. Plaintiff does not allege, and it is not plausible that a 8 reasonable consumer would believe, that the Product—either in its dry or prepared form—is 9 primarily constituted by cheese based on the front of the box. That being the case, the fact that real 10 cheese forms only a small part of the Product does not make it deceptive. 11 Plaintiff cites to Frias v. Mars Wrigley, 2024 WL 3988667 (S.D.N.Y. Aug. 28, 2024), 12 another case dealing with the “made with real cheese” phrase. Plaintiffs alleged that Mars 13 deceptively marketed their “Combos Cheddar Cheese” stuffed snacks as “made with real cheese” 14 when it is predominantly “vegetable fats and cheese byproducts.” Id. at *1. Plaintiffs alleged the 15 primary ingredient was palm oil, and there was less than 2% real cheese. Plaintiffs argued that 16 “made with real cheese” combined with the photo on the package of a block of cheese would lead 17 a reasonable consumer to think that it consisted “entirely or predominantly” of real cheese. The 18 court cited a Second Circuit opinion and stated: “Under the logic of Mantikas [v. Kellogg Co., 910 19 F.3d 633 (2d Cir. 2018),] an advertising claim can be misleading even if it is technically true.” Id. 20 at 3. The court rejected defendant’s argument that any confusion could be cleared up by looking 21 at the ingredient label. However, Frias involved distinguishable facts. In Frias the product was 22 “Cheddar Cheese” flavored. In light of that fact, the court found it “at least plausible … that a 23 reasonable consumer would instinctively understand ‘cheddar cheese’-flavored ‘stuffed snacks’ to 24 be filled predominantly with cheese.” Id. By contrast, the Product in this case does not include the 25 name of a real type of cheese (i.e., cheddar) on the front of the box. Frias is also not particularly 26 persuasive—and is perhaps at odds with Ninth Circuit doctrine—given that it did not seek to resolve 27 any ambiguity as to amount of cheese with reference to the packaging as a whole. 28 While Henderson v. Gruma Corp., No. 10-cv-04173 AHM, 2011 WL 1362188 (C.D. Cal. 1 Apr. 11, 2011), also bears some relation to this case, it too is materially distinguishable. In 2 Henderson, the plaintiffs challenged statements on the defendant’s Mission Guacamole and 3 Mission Spicy Bean Dip products. Henderson ruled at the motion to dismiss stage on several 4 allegedly deceptive claims about the defendant’s products. Most relevant to the dispute here, the 5 court found the “label and use of the term ‘Guacamole’ could deceive a reasonable consumer” 6 where the label included the word “GUACAMOLE” in large capital letters, the label “prominently 7 display[ed] large pictures of avocados,” and “the dip itself [wa]s green-colored, as would be 8 avocados.” Id. at *12. The court held “a reasonable consumer could interpret [the] label to imply 9 that the product is indeed guacamole, which it is not, as it allegedly contains less than 2% avocado 10 powder.” Id. By contrast, the Product at issue in the instant case does not purport to be something 11 that it is not. A consumer could reasonably expect that a green dip, labeled “GUACAMOLE” and 12 displaying pictures of avocados was in fact guacamole, a dip primarily composed of avocados. 13 However, a reasonable consumer would understand that Hamburger Helper, a box of dried pasta 14 and powdered seasoning, is not predominantly cheese. 15 Moreover, the Henderson plaintiffs also challenged the claim that the dip was made “with 16 garden vegetables,” and this unsuccessful claim is akin to the instant challenge to the “made with 17 real cheese” description. The district court noted that the product does in fact contain vegetables 18 that could be grown in a garden, as it contained “avocado powder, dehydrated onion, garlic powder, 19 and bell pepper.” Id. at *12. The court observed the label “does not claim a specific amount of 20 vegetables in the product, but rather speaks to their presence in the product, which is not 21 misleading.” Id. (emphasis in original). The court accordingly dismissed the claims associated 22 with the “with garden vegetables” phrase. Similarly, here, “Made with Real Cheese” does not make 23 a representation as to a specific amount of cheese, and the Product does contain cheese. 24 A reasonable consumer would not plausibly be deceived by the Product and Plaintiff’s 25 claims under the CLRA and UCL should accordingly be dismissed. 26 2. Breach of Express Warranty Claim 27 Plaintiff also contends in Count III that Plaintiff breached an express warranty under 28 California Commercial Code § 2313. Under § 2313, “express warranties are created by (1) any 1 affirmation of fact or promise made by the seller to the buyer which relates to the goods and 2 becomes part of the basis of the bargain, and (2) any description of the goods which is made part 3 of the basis of the bargain.” Keith v. Buchanan, 173 Cal.App.3d 13, 19 (Cal. Ct. App. 1985). A 4 seller’s “affirmation of the value of the goods or an expression of opinion or commendation of the 5 goods does not create an express warranty.” Id. “To allege facts identifying the exact terms of the 6 warranty, a plaintiff must provide specifics about what the warranty statement was, and how and 7 when it was breached.” T & M Solar v. Lennox Intern., Inc., 83 F.Supp.3d 855, 875 (N.D. Cal. 8 2015) (internal citation and quotation omitted). To constitute an actionable claim, the statement 9 “must be specific and unequivocal.” Id. 10 Again here, Garza is instructive. In Garza, the plaintiff claimed a breach of an implied 11 warranty and contended the label on the pet food “made an implied promise that the Product is 12 predominantly made with meat.” 760 F.Supp.3d at 1051. The court said that a plaintiff who claims 13 breach of implied warranty must show that the product “did not possess even the most basic degree 14 of fitness for ordinary use.” Id. The Garza court noted that although the breach of warranty claim 15 “may rely solely on alleged affirmative representations made by the defendant on the products 16 label,” in that case defendant “did not affirmatively represent that the dog chews were 17 predominantly made from meat.” Id. at 1051-52. The label of the product said “made with real 18 chicken, pork, & duck.” This is substantially similar to the instant case, as the plaintiff in Garza 19 was imposing an assumption that the product was “predominantly” made with real meat, which is 20 not what the label said. Here, Plaintiff seeks to impose her assumption that the Product is made 21 with more than a de minimis amount of real cheese. The label states “made with real cheese,” and 22 it is made with cheese—it is just 2% or less real cheese. 23 Plaintiff contends the express warranty is the “Products are made with more than a de 24 minimis amount of real cheese.” ECF No. 1 at ¶ 121. But the Product contains no such express 25 statement or other similar promise. This claim fails. 26 C. Leave to Amend 27 The Court now considers whether Plaintiff should be granted leave to amend. Having 28 reviewed the complaint and the packaging contained therein, there is not “a probability that a 1 | significant portion of the general consuming public or of targeted consumers, acting reasonably in 2 || the circumstances, could be misled.” Whiteside, 108 F.4th at 778. Given that conclusion and the 3 || reasoning on which it is based, leave to amend would be futile. See Painter v. Blue Diamond 4 | Growers, 757 F.App’x 517, 519-20 (9th Cir. 2018) (finding amendment would be futile where no 5 || amendment “could improve the plausibility of the consumer confusion allegations [plaintiff] 6 || asserts”). Where a court’s examination of the product label at issue reveals no reasonable consumer 7 || could be misled, dismissal without leave to amend is proper. See, e.g., Garza v. Spectrum Brand 8 | Pet LLC, 760 F.3d 1039, 1051 (E.D. Cal. 2024) (“Based on the undisputed nature of the packaging, 9 || it appears that amendment could not remedy the absence of a consumer deception claim. Thus, the 10 | motion is granted with prejudice and without leave to amend.”); Workman v. Plum Inc., 141 F. 11 | Supp. 3d 1032, 1037 (N.D. Cal. 2015) (dismissing without leave to amend UCL and CLRA claims 12 | where labels not deceptive and cannot be changed by new complaint); Henderson, 2011 WL 13 | 1362188, at *14 (dismissing UCL, FAL and CLRA claims with prejudice where labeling statement 14 | did not claim specific amount of vegetables in product, but spoke to “presence” in product, which 15 | isnot misleading). Moreover, while Plaintiff requested leave to amend in her opposition brief, ECF 16 | No. 18, she did not indicate what additional facts she could allege that would cure the defects 17 || identified by Defendant. There are no facts that Plaintiff could add through amendment that would 18 || show areasonable consumer would be misled by the Product’s cheese-related representations. 19 D. CONCLUSION 20 For the foregoing reasons, IT IS HEREBY ORDERED: 21 1. Defendant Eagle Foods’ Motion to Dismiss (ECF No. 12), is GRANTED and this 22 action is DISMISSED without leave to amend. 23 2. The Clerk shall enter Judgment in favor of Defendant and close this case. 24 | DATED: July 17, 2025 md 26 SEAN C. RIORDAN 27 UNITED STATES MAGISTRATE JUDGE 28 13