Vizcarra v. Unilever United States, Inc.

Background

Lisa Vizcarra brought a proposed consumer class action against Unilever concerning Breyers Natural Vanilla Ice Cream. She alleged that the product’s labeling and marketing—including the words “natural vanilla,” images of vanilla beans and flowers, and visible vanilla-bean specks—led reasonable consumers to believe that the product’s vanilla flavor came from the vanilla plant. According to the complaint, laboratory testing showed that most of the vanilla flavor came from substances other than the vanilla plant.

Vizcarra alleged claims under the unlawful, unfair, and fraudulent parts of California’s Unfair Competition Law, California’s False Advertising Law, and the Consumer Legal Remedies Act. She sought damages, restitution, and an injunction. She also alleged that she would buy the ice cream again if it were flavored as represented.

Rulings on the Motion to Dismiss

Unilever moved under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal for failure to state a legally sufficient claim, and Rule 12(b)(1), which permits dismissal for lack of federal subject-matter jurisdiction.

The court denied Unilever’s motion to dismiss Vizcarra’s Consumer Legal Remedies Act damages claims. Unilever argued that Vizcarra had not sent the written, certified or registered-mail notice required at least 30 days before seeking damages. The court held that a demand letter sent by Steve Nunez’s counsel satisfied the notice requirement because it notified Unilever about alleged problems with its vanilla ice cream products and claims on behalf of similarly situated consumers. The court also held that the proposed class did not need to be certified before a demand letter could provide notice on behalf of class members.

The court denied Unilever’s motion to dismiss the portion of Vizcarra’s Unfair Competition Law claim based on alleged Consumer Legal Remedies Act violations. That motion depended on the court dismissing the damages claims, which it did not do.

The court also denied Unilever’s motion to dismiss Vizcarra’s request for injunctive relief for lack of standing. Constitutional standing requires a plaintiff to allege an actual injury, a connection between that injury and the defendant’s conduct, and a likelihood that a favorable court decision will remedy the injury. For an injunction, the plaintiff must also show a real and immediate likelihood of future harm. The court found Vizcarra’s allegations sufficient because she claimed that she had been misled by the labeling, bought the ice cream in reliance on it, and would buy it again if its flavor matched its labeling and advertising. The court rejected Unilever’s argument that Vizcarra’s later knowledge of the alleged deception eliminated the possibility of future injury.

Other Ruling and Disposition

The court granted Unilever’s motion for leave to file a statement of recent decision concerning another district court opinion, but found that decision distinguishable and denied Unilever’s motion to dismiss. The court noted that Unilever could not file further Rule 12 motions raising defenses or objections that were available but omitted from its earlier motion, subject to the exceptions in Rule 12. Unilever was ordered to file an answer within 21 days of the order. The order terminated Docket Numbers 7 and 20.