Grano v. Sodexo, Inc.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 VINCENT GRANO, an individual, Case No.: 18-CV-1818 TWR (BLM)

12 Plaintiff, ORDER (1) GRANTING THE 13 v. AMENDING PLAINTIFFS’ MOTION FOR LEAVE TO FILE AMENDED 14 SODEXO MANAGEMENT, INC., a New COMPLAINTS, (2) DENYING AS York Corporation; and CARGILL MEAT 15 MOOT DEFENDANT US FOODS’ SOLUTIONS CORP., a Delaware MOTIONS TO DISMISS, AND 16 Corporation, (3) GRANTING IN PART AND 17 Defendants. DENYING IN PART PLAINTIFFS’ MOTION TO STRIKE 18 AND ALL RELATED CASES 19 (ECF Nos. 184, 187, 191, 194–200, 238)

20 Presently before the Court are several fully briefed motions in these eight 21 consolidated actions:1 Plaintiffs Vincent Grano, Tristan Abbott, Bailey Anderson, Michael 22 23 24 1 On March 9, 2020, the Honorable Gonzalo P. Curiel consolidated the following cases: Abbott v. Sodexo Mgmt., Inc., No. 19-CV-1917 TWR (BLM) (S.D. Cal. filed Oct. 2, 2019); Miller v. Sodexo Mgmt., Inc., 25 No. 19-CV-1909 TWR (BLM) (S.D. Cal. filed Oct. 2, 2019); Lader v. Sodexo Mgmt., Inc., No. 19-CV- 1908 TWR (BLM) (S.D. Cal. filed Oct. 2, 2019); Evers v. Sodexo Mgmt., Inc., No. 19-CV-1907 TWR 26 (BLM) (S.D. Cal. filed Oct. 2, 2019); Browning v. Sodexo Mgmt., Inc., No. 19-CV-1905 TWR (BLM) (S.D. Cal. filed Oct. 2, 2019); Baker v. Sodexo Mgmt., Inc., No. 19-CV-1904 TWR (BLM) (S.D. Cal. filed 27 Oct. 2, 2019); Anderson v. Sodexo Mgmt., Inc., No. 19-CV-1903 TWR (BLM) (S.D. Cal. filed Oct. 2, 28 2019); and Grano v. Sodexo, Inc., No. 18-CV-1818 TWR (BLM) (S.D. Cal. filed Aug. 3, 2018). (See 1 Baker, Hunter Browning, Chase Evers, Conner Lader, and Frank Miller’s Motion to Strike 2 Defendant Sodexo Management, Inc.’s Affirmative Defenses (“Mot. to Strike,” ECF No. 3 187); Amending Plaintiffs Abbott, Anderson, Baker, Browning, Evers, Lader, and Miller’s 4 Motion for Leave Under FRCP 15(a)(2) to File Amended Complaints (“Mot. to Amend,” 5 ECF No. 191); and Defendant US Foods’ Motions to Dismiss Plaintiffs Miller’s, Evers’, 6 Lader’s, Browning’s, Anderson’s, Baker’s, and Abbott’s Second Amended Complaints 7 (ECF Nos. 194–200, respectively, and the “Motions to Dismiss,” collectively). The Court 8 held a hearing on November 20, 2020. (See ECF No. 247.) Having carefully considered 9 Sodexo’s Answer to Plaintiff Grano’s Third Amended Complaint (ECF No. 184 (“Ans.”)), 10 the Amending Plaintiffs’ Proposed Third Amended Complaints (ECF Nos. 191-3–9), the 11 Parties’ arguments, and the law, the Court GRANTS the Amending Plaintiffs’ Motion to 12 Amend, DENIES AS MOOT US Foods’ Motions to Dismiss, and GRANTS IN PART 13 AND DENIES IN PART Plaintiffs’ Motion to Strike, as follows. 14 BACKGROUND 15 I. Escherichia Coli 16 Escherichia coli is a family of bacteria, most members of which do not cause human 17 disease. (ECF No. 191-3 (“Proposed Abbott Compl.”) ¶ 43.2) The E. coli O157:H7 (or 18 “STEC”) strain, however, can cause bloody diarrhea in humans and has a reputation as a 19 significant health hazard. (Id.) 20 E. coli O157:H7 is notable for its extremely low infectious dose, with as few as fifty 21 bacteria capable of causing illness in a child. (Id. ¶ 44.) Approximately two to four days 22 (and up to ten days) after ingestion, (id. ¶ 46), the bacteria attach to the inside surface of 23 the large intestine, where they initiate an inflammatory reaction resulting in vomiting, 24 diarrhea that can be bloody, and abdominal cramps. (Id. ¶¶ 45–46.) E. coli infections 25 range from mild to life-threatening. (See id. ¶ 47.) 26

27 2 Although each of the Amending Plaintiffs has filed his own Proposed Third Amended Complaint, the 28 allegations are substantially similar. (See ECF Nos. 191-3–9.) The Court therefore cites to Tristan 1 Although most cases are mild and resolve within about a week without long-term 2 effects, (id.), approximately ten percent of those infected develop a severe, potentially life- 3 threatening complication called hemolytic uremic syndrome (“HUS”). (See id. ¶ 48.) HUS 4 results in the destruction of red blood cells and platelets in the blood, which can result in 5 clots that occlude the filtering units of the kidneys, leading to acute renal failure. (See id. 6 ¶ 48.) Because antibiotics do not aid in combating E. coli infections, therapy is supportive. 7 (See id. ¶ 47.) There is no known therapy to halt the progression of HUS, which has a 8 mortality rate of approximately five percent. (Id. ¶ 49.) 9 II. October 2017 STEC Outbreak at Camp Pendleton 10 In October 2017, an outbreak of Shiga toxin-producing E. coli O157:H7 and O26 at 11 United States Marine Corps Base Camp Pendleton (Edson Range) and the Marine Corp 12 Recruit Depot sickened at least 244 Marine Corps recruits, including Plaintiffs. (See 13 Proposed Abbott Compl. ¶¶ 8, 10.) Fifteen of those recruits developed HUS. (Id. ¶ 9.) By 14 November 2017, all eight Plaintiffs to these consolidated actions had been hospitalized. 15 (See ECF No. 202 (“US Foods Opp’n”) at 8; see also, e.g., Proposed Abbott Compl. 16 ¶¶ 52–54.) 17 Investigators from multiple public health agencies, including the Centers for Disease 18 Control (“CDC”), conducted studies into the circumstances of the outbreak. (Proposed 19 Abbott Compl. ¶ 12.) The investigators inspected the recruits’ sleep quarters, bathroom 20 facilities, and the cafeterias, (see id.), and interviewed forty-three STEC patients and 135 21 healthy controls and other personnel. (Id. ¶ 13.) 22 The CDC issued its report (the “CDC Report”) on January 23, 2018.3 (See id. ¶ 15.) 23 The CDC Report revealed a statistically significant association between illness and the 24

25 3 The Amending Plaintiffs append a copy of the CDC Report to their Motion to Amend. (See Mot. to 26 Amend Ex. H (ECF No. 191-10.) Because the Amending Plaintiffs refer extensively to the CDC Report in their Proposed Third Amended Complaints and because the CDC Report forms a basis for their claims, 27 the Court may treat the CDC Report as incorporated by reference into the Proposed Third Amended 28 Complaints. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002–03 (9th Cir. 2018), cert. 1 consumption of undercooked beef. (See id. ¶ 13.) Plaintiffs allege that the STEC- 2 contaminated ground beef patties responsible for the outbreak were served to recruits in 3 the cafeteria on October 21, 2017. (See id. ¶ 18.) 4 Defendant Cargill Meat Solutions Corp. manufactured and produced the patties, (see 5 id.), which were then received, stored, and refrigerated by US Foods prior to distribution 6 to Defendant Sodexo. (See id. ¶ 19.) Sodexo, which is under contract to provide 7 foodservice at all Marine garrisons and mess halls, (see id. ¶¶ 23–25), allegedly prepared 8 undercooked hamburgers and cheeseburgers from the STEC-contaminated ground beef 9 patties on October 21, 2017. (See, e.g., id. ¶ 22.) The recruits began falling ill October 24, 10 2017. (See id. ¶ 11.) 11 III. The Healio Article and Plaintiffs’ Investigation 12 The Amending Plaintiffs allege that they did not learn, and could not have learned, 13 about the conclusions of the CDC Report until April 24, 2018, when an article titled “E. 14 coli outbreak in Marine recruits associated with undercooked beef” was published on the 15 website www.healio.com. (Proposed Abbott Compl. ¶¶ 56, 59.) Plaintiff Grano sent a 16 Freedom of Information Act (“FOIA”) request to the CDC on July 12, 2018. (See id. ¶ 57.) 17 On October 18, 2028, Plaintiffs’ counsel received the CDC Report and other records in 18 response to their FOIA request. (See id.) 19 IV. Procedural Background 20 Plaintiff Grano filed the first of these consolidated lawsuits against Sodexo on 21 August 3, 2018. (See generally ECF No. 1.) On May 30, 2019, Sodexo produced invoices 22 from US Foods to Sodexo in response to Plaintiff Grano’s requests for production of 23 documents. (See Mot. to Strike at 4.) The Amending Plaintiffs filed their individual actions 24 on October 2, 2019. (See id.) 25 On February 21, 2020, Sodexo sought leave to file a third-party complaint against 26 US Foods for negligence, (see ECF No. 71), which Plaintiffs originally opposed. (See ECF 27 No. 81.) On March 2, 2020, however, the Amending Plaintiffs sought leave to file amended 28 complaints adding US Foods as a defendant. (See Mot. to Strike at 4.) The Honorable 1 Gonzalo P. Curiel granted both motions on May 4, 2020, (see ECF No. 126), and the 2 Amending Plaintiffs filed their First Amended Complaints in their respective actions on 3 May 7, 2020. (See Mot. to Strike at 4.) 4 US Foods moved to dismiss the claims alleged against it in the First Amended 5 Complaint on June 5, 2020, arguing that the Amending Plaintiffs’ claims were time-barred. 6 (See id.) On July 6, 2020, the Amending Plaintiffs moved for leave to file further amended 7 complaints to add requests for punitive damages against Sodexo. (See ECF No. 161.) The 8 following day, the Amending Plaintiffs’ counsel informed US Foods’ counsel of the 9 Amending Plaintiffs’ intent to file a motion for leave to amend their complaints to add 10 allegations responsive to US Foods’ June 5, 2020 motions to dismiss. (See Mot. to Strike 11 at 5.) 12 On August 18, 2020, Judge Curiel granted the Amending Plaintiffs leave to file 13 amended complaints, (see ECF No. 175), and the Amending Plaintiffs filed their operative 14 Second Amended Complaints in their respective actions on August 24, 2020. Sodexo 15 answered Plaintiffs’ operative complaints on September 4, 2020, (see, e.g., ECF No. 184), 16 and Plaintiffs filed the instant Motion to Strike several of Sodexo’s affirmative defenses 17 on September 14, 2020. (See ECF No. 187.) 18 After obtaining new counsel, (see ECF Nos. 180–83, 186), US Foods renewed its 19 motions to dismiss in the individual actions on September 8, 2020,4 following which the 20 Amending Plaintiffs filed the instant Motion to Amend. (See ECF No. 191.) 21 MOTION TO AMEND 22 I. Legal Standard 23 Under Federal Rule of Civil Procedure 15(a), a plaintiff may amend his or her 24 complaint once as a matter of course within specified time limits. Fed. R. Civ. P. 15(a)(1). 25 “In all other cases, a party may amend its pleading only with the opposing party’s written 26

27 4 On September 22, 2020, Judge Curiel ordered US Foods to withdraw the motions to dismiss in the 28 individual actions and to refile them in the lead case, Grano. (See ECF No. 193; see also ECF Nos. 1 consent or the court’s leave. The court should freely give leave when justice so requires.” 2 Fed. R. Civ. P. 15(a)(2). 3 “Rule 15’s policy of favoring amendments to pleadings should be applied with 4 ‘extreme liberality,’” United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981) (citing 5 Rosenberg Brothers & Co. v. Arnold, 283 F.2d 406 (9th Cir. 1960) (per curiam)), and its 6 application is committed to “the sound discretion of the trial court.” Id. (citing PSG Co. v. 7 Merrill Lynch, Pierce, Fenner & Smith, Inc., 417 F.2d 659, 664 (9th Cir. 1969), cert. 8 denied, 397 U.S. 918 (1970)). The Supreme Court has cautioned that courts generally 9 should grant leave to amend absent a showing of “undue delay, bad faith or dilatory motive 10 on the part of the movant, repeated failure to cure deficiencies by amendments previously 11 allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, 12 [or] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). “Rule 15(a) ‘is to 13 be applied with extreme liberality,’ and whether to permit amendment is a decision 14 ‘entrusted to the sound discretion of the trial court.’” EFG Bank AG, Cayman Branch v. 15 Transam. Life Ins. Co., No. 216CV08104CASGJSX, 2019 WL 5784739, at *3 (C.D. Cal. 16 Nov. 4, 2019) (quoting Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 17 (9th Cir. 1990); Jordan v. Cty. of Los Angeles, 669 F.2d 1311, 1324 (9th Cir. 1982)). 18 The non-moving party bears the burden of showing why leave to amend should not 19 be granted. Genentech, Inc. v. Abbott Labs., 127 F.R.D. 529, 530–31 (N.D. Cal. 1989). 20 II. Analysis 21 “Generally speaking, a cause of action accrues at ‘the time when the cause of action 22 is complete with all of its elements.’” Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 23 806–07 (2005) (quoting Norgart v. Upjohn Co., 21 Cal. 4th 383, 397 (1999)) (citing Neel 24 v. Magana, Olney, Levy, Cathcart & Gelfand, 6 Cal. 3d 176, 187 (1971)); see also Tr. at 25 3:20–22. “For both negligence and strict products liability claims, the last element to occur 26 is generally, as a practical matter, the injury to the future plaintiff.” Fox, 35 Cal. 4th at 806. 27 The statute of limitations for the Amending Plaintiffs’ claims for negligence and 28 strict liability against US Foods is two years. See Cal. Civ. Proc. Code § 335.1. Although 1 the Amending Plaintiffs fell ill in October 2017, (see Mot. to Amend at 2), they first sought 2 to add claims against US Foods on March 2, 2020, (see id. at 4), more than two years later. 3 US Foods therefore contends that the Amending Plaintiffs’ claims against it are time- 4 barred. (See, e.g., ECF Nos. 194–200). 5 However, “[a]n important exception to the general rule of accrual is the ‘discovery 6 rule,’ which postpones accrual of a cause of action until the plaintiff discovers, or has 7 reason to discover, the cause of action.” Fox, 35 Cal. 4th at 807 (citing Norgart, 21 Cal. 8 4th at 397; Neel, 6 Cal. 3d at 187). Consequently, by way of the instant Motion to Amend, 9 the Amending Plaintiffs seek leave to file amended complaints in each of their respective 10 member actions to add facts concerning the application of the discovery rule to toll the 11 two-year statute of limitations. (See Mot. to Amend at 2.) US Foods opposes on two 12 grounds: (1) the Amending Plaintiffs failed to plead the discovery rule in their First and 13 Second Amended Complaints, thereby causing undue delay; and (2) the proposed

14 amendments would be futile because the discovery rule is inapplicable on the facts of this 15 case. (See US Foods Opp’n at 11–23.) 16 A. Undue Delay 17 In essence, US Foods contends that the Amending Plaintiffs unduly delayed by 18 failing to plead the discovery rule in their earlier complaints against US Foods. (See US 19 Foods Opp’n at 16.) While the Amending Plaintiffs could—and perhaps should—have 20 added these allegations sooner, as US Foods itself acknowledges, “undue delay alone is 21 generally insufficient to warrant denial of amendment.” (See id. at 15 (citing San Diego 22 Cty. Credit Union v. Citizens Equity First Credit Union, No. 18CV967-GPC(MSB), 2020 23 WL 1864781, at *6 (S.D. Cal. Apr. 14, 2020); Fresno Unified Sch. Dist. v. K.U. ex rel. 24 A.D.U., 980 F. Supp. 2d 1160, 1176 (E.D. Cal. 2013)). Accordingly, absent a finding of 25 futility, see infra Section II.B, the Court should grant the Amending Plaintiffs’ Motion. 26 B. Futility of Amendment 27 US Foods’ main contention is that the Amending Plaintiffs’ proposed amendments 28 would be futile. (See US Foods Opp’n at 16–23.) Specifically, US Foods argues that the 1 Amending Plaintiffs’ claims accrued no later than November 2017, when they were 2 hospitalized and when they had sufficient facts to put them on notice as to their potential 3 claims against US Foods. (See id. at 16–20.) Further, US Foods asserts, the Amending 4 Plaintiffs were not diligent in investigating their claims. (See id. at 20–23.) 5 The Amending Plaintiffs respond that E. coli is not always foodborne and that, 6 although the CDC identified undercooked beef as a likely cause of the outbreak, the results 7 of its investigation were not publicly available until the publication of the Healio article on 8 April 24, 2018. (See ECF No. 228 (“Amend Reply”) at 6–8.) As for diligence, the 9 Amending Plaintiffs contend that US Foods asks the Court to hold them to an unrealistic 10 standard. (See id. at 8–9.) 11 “[T]o rely on the discovery rule for delayed accrual of a cause of action, ‘[a] plaintiff 12 whose complaint shows on its face that his claim would be barred without the benefit of 13 the discovery rule must specifically plead facts to show (1) the time and manner of 14 discovery and (2) the inability to have made earlier discovery despite reasonable 15 diligence.’” Fox, 35 Cal. 4th at 808 (second alteration and emphasis in original) (quoting 16 McKelvey v. Boeing N. Am., Inc., 74 Cal. App. 4th 151, 160 (1999)). US Foods 17 acknowledges that, “[n]ormally, whether a plaintiff has notice or information of 18 circumstances to put a reasonable person on inquiry is a question of fact for the jury.” (See 19 US Foods Opp’n at 17 (quoting Simpson v. Robert Bosch Tool Corp., No. 12-CV-05379- 20 WHO, 2014 WL 985067, at *2 (N.D. Cal. Mar. 7, 2014) (citing Jolly v. Eli Lilly & Co., 44 21 Cal. 3d 1103, 1110 (1988))). 22 At this juncture, accepting the Amending Plaintiffs’ allegations as true and drawing 23 all reasonable inferences in their favor, the Court cannot determine as a matter of law that 24 the Amending Plaintiffs were able to discover the allegedly wrongful cause of their E. coli 25 infection earlier with reasonable diligence. Although “[a]ggrieved parties generally need 26 not know the exact manner in which their injuries were ‘effected, nor the identities of all 27 parties who may have played a role therein,’” Bernson v. Browning-Ferris Indus. of Cal., 28 Inc., 7 Cal. 4th 926, 932 (1994) (quoting Teitelbaum v. Borders, 206 Cal. App. 2d 634, 639 1 (1962)), an action only accrues when an aggrieved party is aware that his or her injury had 2 a wrongful cause. See Fox, 35 Cal. 4th at 808 & n.2. Consequently, “physical injury alone 3 is often insufficient to trigger the statute of limitations.” Id. at 808 n.2. 4 In Clark v. Baxter Healthcare Corporation, for example, the nurse plaintiff began 5 experiencing symptoms of a severe allergy to her latex gloves in 1992 and 1993. See 83 6 Cal. App. 4th 1048, 1052, as modified on denial of reh’g (Oct. 20, 2000). The plaintiff 7 began using non-latex gloves when available in 1993, and in 1994, an allergist told her to 8 avoid latex gloves because of a potential allergy. Id. at 1052–53. In 1995, the plaintiff 9 suffered an anaphylactic reaction during a gynecological exam caused her gynecologist’s 10 latex gloves. Id. at 1053. The plaintiff then joined a “support and task force group” 11 studying latex allergies and, at the end of 1995, read an article concerning latex allergies 12 among healthcare workers. Id. It was only in 1996 that the plaintiff filed a products 13 liability action against several manufacturers of latex gloves, alleging claims for fraudulent 14 concealment, strict liability on either a manufacturing/design defect or failure to warn 15 theory, and negligence. Id. at 1053–54. On the defendants’ motion, the trial court granted 16 summary judgment in their favor on statute of limitations grounds, concluding that the 17 plaintiff had known—or should have known—that there was a problem with the latex 18 gloves several years earlier. Id. at 1055. 19 The Court of Appeal reversed, concluding that there existed triable issues of fact 20 regarding when the plaintiff had become aware that a defendant’s wrongdoing may have 21 affected the gloves causing her allergies. See id. at 1058–59. The plaintiff had alleged a 22 possible negligent cause of her injuries, such as a product defect or contamination, and the 23 plaintiff’s latex allergies alone would not have led her to suspect that the latex gloves had 24 been defectively manufactured. See id. at 1059–60. Consequently, “[t]he record could 25 support an inference that she did not become aware of a potential wrongfulness component 26 of her cause of action until more information than the existence of her allergies placed her 27 on inquiry notice,” id. at 1060, such as her anaphylactic reaction or review of the academic 28 article in 1995. See id. at 1059–60. 1 Similarly, in Rosas v. BASF Corporation, the Court of Appeal reversed a grant of 2 summary judgment in favor of the defendant where triable issues of fact existed as to 3 whether a reasonable person would have suspected a wrongful cause for the plaintiff 4 employee’s lung condition, which was caused by chemicals used to make food flavorings. 5 See 236 Cal. App. 4th 1378, 1394–96 (2015). Although the plaintiff had seen a number of 6 doctors—including a pulmonologist—over the years for his lung condition, none of the 7 physicians believed that the plaintiff’s exposure to chemicals at work was the cause of his 8 illness. See id. at 1395. The court concluded that “it is reasonable to expect that a patient 9 with no information about potential wrongdoing would rely on the assurance of a 10 pulmonary physician that chemical exposure is only aggravating the person’s symptoms, 11 not causing his underlying disease.” Id. at 1396. The court also reasoned that “[t]his is not 12 a scenario where the employee is working with chemicals that are recognized as being 13 hazardous,” but rather, “it would be reasonable to assume that chemicals used to make food 14 flavorings intended for human consumption would be relatively safe.” Id. 15 Here, as in Clark and Rosas, the Amending Plaintiffs allege facts that they had no 16 reason to suspect a wrongful cause to their physical ailment until a later date. Specifically, 17 although the Amending Plaintiffs were injured in October 2017, they allege that they did 18 not discover, and could not have discovered, that their illnesses were the result of 19 Defendants’ alleged wrongdoing until the publication of the Healio article six months later. 20 (See Proposed Abbott Compl. ¶¶ 56–59.) The Amending Plaintiffs did not fall ill until 21 several days after eating the allegedly contaminated food products, (see Proposed Abbott 22 Compl. ¶ 11), and the various public health agencies involved, including the CDC, 23 investigated not only the Marines’ cafeterias and food preparation practices, but also the 24 recruits’ sleeping quarters and bathroom facilities. (See id. ¶ 12.) Further, although the 25 CDC determined on January 23, 2018, that there was a statistically significant correlation 26 between infection and the consumption of undercooked beef, (see id. ¶ 13), those 27 conclusions were not publicized or made available to the recruits until the publication of 28 the Healio article on April 24, 2018, (see id. ¶ 56), approximately three months later. 1 Although not necessary to the Court’s conclusion, the CDC Report, which the Court 2 may incorporate by reference into the Proposed Third Amended Complaints, see supra 3 note 3, only strengthens the Amending Plaintiffs’ allegations. The CDC Report explicitly 4 acknowledges that STEC outbreaks may be caused by a variety of factors, including 5 ingestion of contaminated ground beef or leafy greens, contact with infected animals, or 6 exposure to contaminated water. (See Mot. to Amend Ex. H at 10.) The CDC Report 7 reveals that the CDC therefore investigated not only the recruits’ exposure to meats and 8 fresh produce, but also their hygiene and environmental practices. (See id. at 5.) The CDC 9 also tested both food and environmental samples, neither of which revealed pathogens. 10 (See id. at 7.) Ultimately, the CDC Report did not find a definitive source for the outbreak, 11 (see id. at 10), although the case-control study did reveal “[c]oncerning findings” about the 12 recruits’ hygiene and a statistically significant correlation between infection with E. coli 13 and the ingestion of undercooked beef. (See CDC Report at 8; see also id. at 10.) 14 On this record, reasonable minds could differ as to whether the Amending Plaintiffs 15 could or should have been aware prior to the April 24, 2018 publication of the Healio article 16 that the ingestion of allegedly undercooked, STEC-contaminated ground beef on 17 October 21, 2017, caused their E. coli O157:H7 hospitalizations. Accordingly, the Court 18 GRANTS the Amending Plaintiffs’ Motion to Amend. See, e.g., Pereira v. Dow Chem. 19 Co., 129 Cal. App. 3d 865, 874 (1982) (reversing grant of summary judgment in favor of 20 defendant chemical manufacturers and distributors where the plaintiff suffered kidney 21 damage as a result of a chemical spill but the spill “did not involve any perceptible trauma,” 22 “[n]o medical person told them that the kidney problem was caused by the spill,” and the 23 plaintiff first learned of the possible connection between the chemical spill and his illness 24 upon review of his medical records); Frederick v. Calbio Pharm., 89 Cal. App. 3d 49, 58 25 (1979) (reversing dismissal on demurrer where “[t]he allegations of the complaint 26 adequately show that pathological effects [caused by the administration of an experimental 27 drug leading to the decedent’s death] occurred without perceptible trauma” and the 28 plaintiffs “did not then have reason to suspect any perceptible relationship between the 1 administration of the drug and the death” until the Food and Drug Administration recalled 2 the drug for that reason). 3 MOTIONS TO DISMISS 4 Because the Court has granted the Amending Plaintiffs’ Motion to Amend, it 5 DENIES AS MOOT US Foods’ Motions to Dismiss. 6 MOTION TO STRIKE 7 I. Legal Standard 8 Federal Rule of Civil Procedure 12(f) provides that a court “may strike from a 9 pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous 10 matter.” Fed. R. Civ. P. 12(f). “The function of a [Rule] 12(f) motion to strike is to avoid 11 the expenditure of time and money that must arise from litigating spurious issues by 12 dispensing with those issues prior to trial.” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 13 970, 973 (9th Cir. 2010) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 14 1993), rev’d on other grounds, 510 U.S. 517 (1994)). 15 “Motions to strike are ‘generally disfavored because they are often used as delaying 16 tactics and because of the limited importance of pleadings in federal practice.’” Cortina v. 17 Goya Foods, Inc., 94 F. Supp. 3d 1174, 1182 (S.D. Cal. 2015) (quoting Rosales v. Citibank, 18 133 F. Supp. 2d 1177, 1180 (N.D. Cal. 2001)). “[M]otions to strike should not be granted 19 unless it is clear that the matter to be stricken could have no possible bearing on the subject 20 matter of the litigation.” Colaprico v. Sun Microsys., Inc., 758 F. Supp. 1335, 1339 (N.D. 21 Cal. 1991). “When ruling on a motion to strike, this Court ‘must view the pleading under 22 attack in the light most favorable to the pleader.’” Id. (citing RDF Media Ltd. v. Fox Broad. 23 Co., 372 F. Supp. 2d 556, 561 (C.D. Cal. 2005)). 24 “Unless it would prejudice the opposing party, courts freely grant leave to amend 25 stricken pleadings.” Roe v. City of San Diego, 289 F.R.D. 604, 608 (S.D. Cal. 2013) (citing 26 Fed. R. Civ. P. 15(a)(2); Wyshak v. City Nat’l Bank, 607 F.2d 824, 826 (9th Cir. 1979), 27 abrogated in part on other grounds by Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th 28 Cir. 2016))). 1 II. Analysis 2 Plaintiffs move to strike Sodexo’s first (failure to state a claim), fourth (third-party 3 responsibility), sixth (failure to mitigate), seventh (no product defect), eighth (good faith 4 performance), ninth (lack of causation – substantial factor), tenth (estoppel), eleventh (lack 5 of causation), twelfth (preemption), thirteenth (contractor immunity), fourteenth 6 (contractual compliance), fifteenth (legal compliance), sixteenth (other medical 7 conditions), seventeenth (no malicious conduct), eighteenth (no authorization or 8 ratification), and twentieth (reservation of affirmative defenses) affirmative defenses on 9 the grounds that they are not proper affirmative defenses and/or fail to provide adequate 10 notice under Federal Rule of Civil Procedure 8.5 (See Mot. to Strike at 3–10.) 11 A. Mootness 12 At the hearing, counsel for Sodexo “wonder[ed] if the Court was going to grant the 13 motion to leave, if the Plaintiff’s motion [to strike] became moot.” (Tr. at 17:3–5.) The 14 Court agrees that the Motion to Strike is moot as to the Amending Plaintiffs; the Court 15 therefore DENIES AS MOOT the Motion to Strike as to Plaintiffs Abbott, Anderson, 16 Baker, Browning, Evers, Lader, and Miller. Because Plaintiff Grano has not sought leave 17 to file a further amended complaint, however, the Court nonetheless addresses the Motion 18 to Strike on the merits as to Sodexo’s Answer to Plaintiff Grano’s Third Amended 19 Complaint. 20 B. Timeliness of Motion 21 As an initial matter, a motion to strike must be filed “within 21 days after being 22 served with the pleading.” Fed. R. Civ. P. 12(f). Although Plaintiffs timely filed the instant 23 Motion to Strike after service of Sodexo’s Answer to their operative Complaints, Plaintiffs 24 argue that “Sodexo alleges many of the same boilerplate affirmative defenses that appeared 25 in its answers to Plaintiffs’ previous complaints,” which “were deficient in the first instance 26

27 5 Although Plaintiffs originally sought to strike Sodexo’s third affirmative defense for contributory 28 negligence, (see Mot. to Strike at 3–4), Plaintiffs’ withdrew that challenge on reply. (See ECF No. 230 1 for failure to provide any factual support at all, much less the ‘fair notice’ required under 2 Fed. R. Civ. Proc. 8, and . . . remain deficient in their current iterations, despite the passage 3 of two years of litigation and the conduct of voluminous documentary and deposition 4 discovery.” (Mot. to Strike at 2.) Plaintiffs are correct—all of the affirmative defenses 5 they now challenge, except for the seventeenth and eighteenth that pertain to Plaintiffs’ 6 newer punitive damages allegations, were first asserted in Sodexo’s Answer to Plaintiff 7 Grano’s First Amended Complaint on October 5, 2018. (Compare ECF No. 9 at 8–12, 8 with Ans. at 31–36.) Rather than lead the Court to question the sufficiency of Sodexo’s 9 affirmative defenses, however, this prompts the Court to question why Plaintiffs have 10 waited nearly two years to litigate the issue. 11 “[Plaintiffs] could have acted more diligently and filed [their] motion to strike . . . 12 earlier in response to [Defendant]’s original answer where the . . . defense[s] w[ere] 13 originally pled.” See Rutherford v. Evans Hotels, LLC, No. 18-CV-435 JLS (MSB), 2019 14 WL 1900889, at *2 n.2 (S.D. Cal. Apr. 29, 2019) (alterations in original) (quoting Newborn 15 Bros. Co. v. Albion Eng’g Co., 299 F.R.D. 90, 95 (D.N.J. 2014)). Nonetheless, “[a]lthough 16 this consideration may weigh in favor of finding the present Motion to be a delaying tactic 17 . . . , ‘[s]tanding alone . . . , this lack of diligence by [Plaintiffs] is insufficient to deny the 18 [timely] motion to strike.’” See id. (third through sixth alterations in original) (quoting 19 Newborn Bros. Co., 299 F.R.D. at 95) (citing Cortina, 94 F. Supp. 3d at 1182; SunEarth, 20 Inc. v. Sun Earth Solar Power Co., No. C 11-4991 CW, 2012 WL 2326001, at *2 (N.D. 21 Cal. June 19, 2012); Raychem Corp. v. PSI Telecomms., Inc., No. CIV. C-93-20920 RPA, 22 1995 WL 108193, at *2 (N.D. Cal. Mar. 6, 1995)). The Court therefore considers the 23 Motion to Strike on the merits. 24 C. Negative and Non-Affirmative Defenses 25 Plaintiffs challenge Sodexo’s first, seventh through ninth, eleventh, seventeenth, 26 eighteenth, and twentieth affirmative defenses on the grounds that they are not proper 27 affirmative defenses. (See Mot. to Strike at 3, 4–6, 8–10.) Sodexo does not dispute that 28 these are not proper affirmative defenses, (see ECF No. 213 (“Sodexo Opp’n”) at 7–8, 1 10–13, 16–17), and also acknowledge that their fifteenth and sixteenth defenses are not 2 affirmative defenses. (See id. at 15–16.) 3 Because “[a] defense which demonstrates that plaintiff has not met its burden of 4 proof is not an affirmative defense,” Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 5 (9th Cir. 2002) (citing Flav-O-Rich v. Rawson Food Serv., Inc. (In re Rawson Food Serv., 6 Inc.), 846 F.2d 1343, 1349 (11th Cir. 1988)), the Court GRANTS Plaintiffs’ Motion to 7 Strike and STRIKES WITH PREJUDICE Sodexo’s first, seventh through ninth, 8 eleventh, and fifteenth through eighteenth affirmative defenses as to Plaintiff Grano. See, 9 e.g., Gomez v. J. Jacobo Farm Labor Contr., Inc., 188 F. Supp. 3d 986, 995 (E.D. Cal. 10 2016) (striking with prejudice defenses for failure to state a claim); Barnes v. AT & T 11 Pension Ben. Plan-Nonbargained Program, 718 F. Supp. 2d 1167, 1173–75, 1176 (N.D. 12 Cal. 2010) (striking with prejudice negative and non-affirmative defenses). Further, 13 because “[t]he mere reservation of affirmative defenses is not an affirmative defense,” 14 Kohler v. Staples the Office Superstore, LLC, 291 F.R.D. 464, 473 (S.D. Cal. 2013) 15 (internal quotation marks omitted) (quoting E.E.O.C. v. Timeless Invs., Inc., 734 F. Supp. 16 2d 1035, 1055 (E.D. Cal. 2010)), the Court GRANTS Plaintiffs’ Motion to Strike and 17 STRIKES WITH PREJUDICE Sodexo’s twentieth affirmative defense as to Plaintiff 18 Grano. See id. 19 D. Failure to Provide Adequate Notice 20 Plaintiffs also move to strike Sodexo’s fourth, sixth, tenth, and twelfth through 21 fourteenth affirmative defenses for failure to provide fair notice. (See Mot. to Strike at 4, 22 6–8.) 23 1. Fourth Affirmative Defense: Third-Party Responsibility 24 Sodexo’s fourth affirmative defense provides: 25 The accident, injury, and damages alleged in the Third Amended 26 Complaint were either wholly or in part proximately caused by the negligence and fault of persons, corporations or entities other 27 than the answering Defendant and the negligence of such other 28 1 persons, corporations, and/or entities comparatively reduces the percentage of negligence, if any, attributed to this Defendant. 2

3 (Ans. at 32.) Plaintiffs contend that Sodexo “fails to identify which ‘persons, corporations, 4 or entities’ engaged in the alleged wrongful conduct, or what the wrongful conduct 5 consisted of,” meaning “this defense does not give sufficient notice to plaintiffs.” (Mot. to 6 Strike at 4 (citing Gomez, 188 F. Supp. 3d at 992).) Sodexo responds that its “answers 7 expressly allege that Sodexo was without fault and that, to the extent that a jury finds that 8 Plaintiffs’ E. coli infections were cause[d] by contaminated hamburgers, Sodexo received 9 all such hamburgers from Cargill . . . through its distributor, US Foods.” (Sodexo Opp’n 10 at 9 (citing 19cv1909 ECF No. 57 ¶¶ 19–21).) 11 Sodexo’s clarification in its Opposition cannot “cure the deficiency in [its] Answer.” 12 See Shellabarger v. Dicharry, No. 2:13-CV-00188-TLN, 2014 WL 5797194, at *3 (E.D. 13 Cal. Nov. 6, 2014). As pled, Sodexo’s fourth affirmative defense “does not even assert, at 14 a minimum, who these other persons were.” See Fed. Trade Comm’n v. Loss Mitigation 15 Servs., No. SACV09800DOCANX, 2010 WL 11519447, at *2 (C.D. Cal. Feb. 17, 2010). 16 The Court therefore GRANTS Plaintiffs’ Motion to Strike and STRIKES WITHOUT 17 PREJUDICE Sodexo’s fourth affirmative defense as to Plaintiff Grano. 18 2. Sixth Affirmative Defense: Failure to Mitigate 19 Sodexo’s sixth affirmative defense alleges “[t]hat[,] by the exercise of reasonable 20 effort, the Plaintiff could have mitigated the amount of damages they suffered, but Plaintiff 21 failed and refused, and continues to fail and refuse, to exercise a reasonable effort to 22 mitigate the damages.” (Ans. at 32.) Plaintiffs contend that this affirmative defense fails 23 to provide sufficient notice because Sodexo “does not identify with any degree of 24 specificity any action or inaction by Plaintiffs.” (Mot. to Strike at 4.) Sodexo rejoins that 25 it “is not required to include detailed facts in its pleadings to support its affirmative 26 defenses,” (Sodexo Opp’n at 9), and that the facts underlying this defense are available in 27 each Plaintiff’s “medical, psychological, educational, and employment records that 28 / / / 1 Plaintiffs have produced in discovery,” meaning “Plaintiffs already have fair notice of the 2 factual bases for Sodexo’s failure to mitigate defense.” (Id. at 10.) 3 “Although a generalized statement may be sufficient for purposes of pleading a 4 mitigation defense, the Court agrees with [Plaintiffs] that [Sodexo] fails to make even a 5 generalized statement that [Plaintiffs] failed to mitigate.” See Snap! Mobile, Inc. v. 6 Croghan, No. 18-CV-04686-LHK, 2019 WL 884177, at *5 (N.D. Cal. Feb. 22, 2019). The 7 Court therefore GRANTS Plaintiffs’ Motion to Strike and STRIKES WITHOUT 8 PREJUDICE Sodexo’s sixth affirmative defense as to Plaintiff Grano. See id.; see also, 9 e.g., Kohler v. Staples the Office Superstore, LLC, 291 F.R.D. 464, 469 (S.D. Cal. 2013) 10 (striking without prejudice affirmative defense for failure to mitigate where the defendant’s 11 “answer gives no notice to [the plaintiff] of the basis of his alleged failure to mitigate”). 12 3. Tenth Affirmative Defense: Estoppel 13 As its tenth affirmative defense, Sodexo claims that, 14 [a]s a separate and affirmative defense to all causes of action 15 alleged in the Third Amended Complaint on file herein, this answering Defendant is informed and believes, and thereon 16 alleges, that Plaintiff is estopped from recovery on the Third 17 Amended Complaint on file herein by virtue of the conduct of Plaintiff. 18

19 (Ans. at 33.) Plaintiffs argue that this affirmative defense is insufficient because Sodexo 20 “fails to identify any ‘conduct of Plaintiff’ on which the defense rests.” (Mot. to Strike at 21 6.) Sodexo responds that “the CDC Report cited through Plaintiffs’ complaints provides 22 them with sufficient factual background.” (Sodexo Opp’n at 12.) 23 The Court agrees with Plaintiffs that Sodexo’s estoppel defense, as currently pled, 24 is insufficient. Not only does Sodexo fail to identify Plaintiffs’ “conduct,” but it also fails 25 to allege the elements of estoppel. See, e.g., Whiting v. City of Palm Desert, No. 26 EDCV1701395JGBKKX, 2018 WL 6034968, at *4 (C.D. Cal. May 17, 2018) (striking 27 without prejudice estoppel defense for failure to allege essential elements) (citing Mattox 28 v. Watson, No. CV 07-5006-RGK RZX, 2007 WL 4200213, at *5 (C.D. Cal. Nov. 15, 1 2007)). Accordingly, the Court GRANTS Plaintiffs’ Motion to Strike and STRIKES 2 WITHOUT PREJUDICE Sodexo’s tenth affirmative defense as to Plaintiff Grano. 3 4. Twelfth Affirmative Defense: Preemption 4 Sodexo’s twelfth affirmative defense provides that, “[a]s a separate and affirmative 5 defense to all causes of action alleged in the Third Amended Complaint on file herein, this 6 answering Defendant asserts that each of Plaintiff’s claims concerning violations of general 7 state and federal law and regulations are preempted by the terms of the Tri-Service Food 8 Code.” (Ans. at 34.) Plaintiffs urge that, “[w]ithout providing supporting information as 9 to how the Tri-Service Food Code preempts ‘general state and federal law,’ the defense 10 fails to provide adequate notice.” (Mot. to Strike at 7.) Sodexo counters that “this is a pure 11 legal contention” and “Rule 8 does not require Sodexo to provide its attorneys’ legal 12 analysis.” (Sodexo Opp’n at 13.) 13 Although Sodexo’s defense could be more detailed, because Sodexo identifies the 14 law forming the basis for its preemption defense, the Court concludes that Sodexo has 15 provided Plaintiffs fair notice. See, e.g., Craten v. Foster Poultry Farms Inc., No. CV-15- 16 02587-PHX-DLR, 2016 WL 3457899, at *4 (D. Ariz. June 24, 2016) (finding preemption 17 defense sufficiently pled where the defendant alleged that the “[p]laintiff’s claims are 18 preempted by the federal Poultry Products Inspection Act, 21 U.S.C. § 451 et seq., and 19 related federal regulations, including . . . 21 U.S.C. § 467e”) (second alteration in original); 20 Miller v. Ghirardelli Chocolate Co., No. C 12-04936 LB, 2013 WL 3153388, at *4 (N.D. 21 Cal. June 19, 2013) (declining to strike preemption defense alleging that “[t]he claims are 22 barred to the extent that they are preempted by federal law, including specifically by FDA 23 labeling requirements and the prohibition on private rights of action to enforce FDA rules”) 24 (alteration in original). Accordingly, the Court DENIES Plaintiffs’ Motion to Strike 25 Sodexo’s twelfth affirmative defense as to Plaintiff Grano. 26 / / / 27 / / / 28 / / / 1 5. Thirteenth and Fourteenth Affirmative Defenses: Government Contractor Defense 2

3 Sodexo’s thirteenth and fourteenth affirmative defenses are both iterations of the 4 government contractor defense. See, e.g., In re Hanford Nuclear Reserv. Litig., 534 F.3d 5 986, 1000 (9th Cir. 2008) (“The [government contractor] defense allows a contractor- 6 defendant to receive the benefits of sovereign immunity when a contractor complies with 7 the specifications of a federal government contract.”) (citing Boyle v. United Techs. Corp., 8 487 U.S. 500, 511–12 (1988)). In its thirteenth affirmative defense, Sodexo alleges: 9 As a separate and affirmative defense to all causes of action 10 alleged in the Third Amended Complaint on file herein, this answering Defendant is informed and believes that each of 11 Plaintiff’s claims against it are barred in their entirety by 12 Defendant’s immunity enjoyed by virtue of its status as a government contractor. 13

14 (Ans. at 34.) Sodexo’s fourteenth affirmative defense similarly provides: 15 As a separate and affirmative defense to all causes of action 16 alleged in the Third Amended Complaint on file herein, this answering Defendant is informed and believes that each of 17 Plaintiff’s claims against it are barred because Defendant 18 complied with the specifications set out in its contract with the United States Marine Corps. 19

20 (Id.) Plaintiffs contend that both of these defenses must be stricken because Sodexo “fails 21 to identify any applicable laws, regulations, authority, or other bases supporting the alleged 22 bar to Plaintiffs’ claims.” (Mot. to Strike at 7–8 (citing Kohler v. Islands Rests., LP, 280 23 F.R.D. 560, 568 (S.D. Cal. 2012)).) Sodexo responds that its thirteenth affirmative defense 24 “is a legal contention and Plaintiffs already have all the factual information they need to 25 evaluate the contention” based on the allegations in their own complaints regarding 26 “Sodexo’s Foodservice Contract with the Marine Corps” and Sodexo’s contention that it 27 is a government contractor. (See Sodexo Opp’n at 14.) As for its fourteenth affirmative 28 defense, Sodexo contends that its prior opposition to Plaintiffs’ motion for leave to file 1 amended complaints “explained that, pursuant to its contract with the Marine Corps, the 2 Marine Corps ‘controls the recipes that Sodexo makes, including the hamburger recipe . . . 3 along with the mandated meal service schedule,’” (id. (citing ECF No. 173 at 1)), which 4 provides fair notice. (Id. at 14–15 (citing Wyshak, 607 F.2d at 827).) 5 The Court concludes that Sodexo’s thirteenth and fourteenth affirmative defenses 6 are sufficiently pled to provide fair notice to Plaintiffs. See, e.g., O’Connor v. Boeing N. 7 Am., Inc., No. CV 00-0186 DT RCX, 2005 WL 6035256, at *10 (C.D. Cal. Aug. 9, 2005) 8 (denying motion to strike defendant alleging that the “[d]efendant is immune from suit in 9 this action because [the p]laintiffs’ claims arise from [the d]efendants’ manufacture of 10 products and other activities for the United States Government . . . in strict accordance with 11 detailed Government specifications, at the direction and discretion of Government 12 officers”). Accordingly, the Court DENIES Plaintiffs’ Motion to Strike Sodexo’s 13 thirteenth and fourteenth affirmative defenses as to Plaintiff Grano. 14 CONCLUSION 15 In light of the foregoing, the Court GRANTS the Amending Plaintiffs’ Motion to 16 Amend (ECF No. 191) and DENIES AS MOOT US Foods’ Motions to Dismiss (ECF 17 Nos. 194–200). The Amending Plaintiffs SHALL FILE their Third Amended Complaints 18 in their respective member cases within seven (7) days of the electronic docketing of this 19 Order, and Defendants SHALL RESPOND to the Third Amended Complaints pursuant 20 to Federal Rule of Civil Procedure 15(a)(4). 21 The Court also GRANTS IN PART AND DENIES IN PART Plaintiffs’ Motion 22 to Strike (ECF No. 187). Specifically, the Court DENIES AS MOOT the Motion to Strike 23 as to Plaintiffs Abbott, Anderson, Baker, Browning, Evers, Lader, and Miller; STRIKES 24 WITH PREJUDICE Sodexo’s first, seventh, eighth, ninth, eleventh, fifteenth, sixteenth, 25 seventeenth, eighteenth, and twentieth affirmative defenses as to Plaintiff Grano (ECF No. 26 184); and STRIKES WITHOUT PREJUDICE Sodexo’s fourth, sixth, and tenth 27 affirmative defenses as to Plaintiff Grano (ECF No. 184). Sodexo MAY FILE an amended 28 / / / 1 || answer to Plaintiff Grano’s Second Amended Complaint pursuant to Federal Rule of Civil 2 || Procedure 12(a)(4)(A). 3 IT IS SO ORDERED. 4 Dated: December 3, 2020 | 99> (2 re Honorable Todd W. Robinson ] United States District Court 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28