Natalia Bruton, individually and on behalf of all others similarly situated v. Gerber Products Company

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATALIA BRUTON, individually and on
behalf of all others similarly situated,
Plaintiff-Appellant,
v.
GERBER PRODUCTS COMPANY,
Defendant-Appellee.
No. 15-15174
D.C. No. 5:12-cv-02412-LHK
Northern District of California,
San Jose
ORDER
Before: O’SCANNLAIN, GOULD, and M. SMITH, Circuit Judges.
Defendant-Appellee Gerber Products Company’s Petition for Rehearing is
GRANTED, in part. The memorandum disposition previously filed on April 19,
2017, and the partial dissent filed with it, are hereby withdrawn, and a new
memorandum disposition shall be filed simultaneously.
FILED
JUL 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATALIA BRUTON, individually and on
behalf of all others similarly situated,
Plaintiff-Appellant,
v.
GERBER PRODUCTS COMPANY,
Defendant-Appellee.
No. 15-15174
D.C. No. 5:12-cv-02412-LHK
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Argued December 13, 2016, Submitted April 19, 2017
San Francisco, California
Before: O’SCANNLAIN, GOULD, and M. SMITH, Circuit Judges.
Plaintiff-Appellant Natalia Bruton filed a putative class action against baby
food manufacturer Gerber Products Company (Gerber). Bruton alleged that labels
on certain Gerber baby food products included claims about nutrient and sugar
content that were impermissible under Food and Drug Administration (FDA)
FILED
JUL 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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regulations incorporated into California law. The district court dismissed several
of Bruton’s claims, denied class certification, denied partial summary judgment for
Bruton, and granted summary judgment to Gerber. Bruton appeals, challenging the
district court’s orders. We have jurisdiction under 28 U.S.C. §§ 1291 and 1332(d).
We reverse and remand.
1. The district court erred in dismissing Bruton’s claim for unjust
enrichment/quasi-contract. At the time when the district court dismissed this
claim, California’s case law on whether unjust enrichment could be sustained as a
standalone cause of action was uncertain and inconsistent. But since then, the
California Supreme Court has clarified California law, allowing an independent
claim for unjust enrichment to proceed in an insurance dispute. See Hartford Cas.
Ins. Co. v. J.R. Mktg., L.L.C., 61 Cal. 4th 988, 1000 (2015); see also Ghirardo v.
Antonioli, 14 Cal. 4th 39, 54 (1996) (recognizing independent cause of action for
unjust enrichment relating to real estate transaction). In light of this clarification,
we reverse the district court’s dismissal and remand for consideration of whether
there are other grounds on which Bruton has failed to state a claim for unjust
enrichment, or if that claim must proceed to resolution.
2. The district court erred when it held that the class could not be certified
because it was not “ascertainable.” Again, the district court’s reasoning runs
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headlong into an inconsistent case that was decided after the district court’s ruling.
In Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017), our
court—using different terminology for what the district court called
“ascertainability”—held that there was no separate “administrative feasibility”
requirement for class certification. Id. at 1123. We reverse the district court’s
denial of class certification and remand for further consideration of whether class
certification is appropriate.
3. The district court properly held that there was no genuine dispute of
material fact on Bruton’s claims that the labels were deceptive in violation of
California’s Unfair Competition Law (UCL), see Cal. Bus. and Prof. Code
§ 17200, False Advertising Law (FAL), see id. § 17500, and Consumer Legal
Remedies Act (CLRA), see Cal. Civ. Code § 1770.
Bruton’s theory of deception does not rely on proving that any of Gerber’s
labels were false. Rather, Bruton contends that the combination of (a) the presence
of the claims on Gerber’s products (in violation of FDA regulations), and (b) the
lack of claims on competitors’ products (in compliance with FDA regulations),
made Gerber’s labeling likely to mislead the public into believing that Gerber’s
products were of a higher quality than its competitors’ products.
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Bruton’s theory of deception may be viable. The California courts have held
that even technically correct labels can be misleading. See Lavie v. Procter &
Gamble Co., 105 Cal. App. 4th 496, 510 (2003) (“The advertisement, although
literally true, was nevertheless deceptive and misleading in its implications.”
(quoting People v. Wahl, 39 Cal. App. 2d Supp. 771, 773 (Cal. App. Dep’t Super.
Ct. 1940) (literally true advertisement was misleading because price of offered
product was 50% off regular price of more expensive product, not regular price of
the offered product)); see also Leoni v. State Bar, 39 Cal. 3d 609, 627 (1985)
(holding that attorney advertising, though not false, was misleading because “[a]
necessary fact ha[d] been omitted.”). Here, it may be literally true that Gerber’s
products are “As Healthy As Fresh,” but due to alleged external facts—that Gerber
does not comply with the FDA regulations that otherwise prevent its competitors
from making the same claim—Bruton’s theory is that Gerber’s labels by
comparison mislead in their implications.
Nevertheless, even assuming the validity of Bruton’s theory, the record does
not include sufficient evidence to create a genuine dispute of material fact for trial
as to consumer deception under her theory. Bruton points to the following
evidence to support consumer deception: (1) Gerber’s and its competitors’ labels;
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(2) Bruton’s own testimony about being misled by Gerber’s labels; and (3) two
warning letters from the FDA.
The labels in the record include both Gerber’s labels and some of its
competitors’ labels. However, the competitor labels do not, as Bruton’s theory of
deception would require, avoid illegal label claims. Rather, they make many of the
same illegal claims as Gerber’s labels. A reasonable jury comparing the labels side
by side could not rationally conclude that Gerber’s labels were likely to deceive
members of the public into thinking that Gerber’s products were of a higher quality
than its competitors’ products that made the same type of claims. Bruton’s
testimony about being misled while shopping is vague, “uncorroborated and
self-serving,” and does not tend to show that Gerber’s labels were misleading or
deceptive. F.T.C. v. Neovi, Inc., 604 F.3d 1150, 1159 (9th Cir. 2010), as amended
(June 15, 2010) (internal quotation marks omitted). And the FDA warning letters,
in addition to being informal and non-binding, do not indicate that Gerber’s
competitors’ labels are in compliance with FDA requirements. The letters
therefore do not support Bruton’s theory that Gerber’s labels are deceptive because
its competitors’ labels follow the law. We hold that the record does not contain
sufficient evidence to create a genuine dispute of material fact for trial as to the
outcome under the reasonable consumer test. We affirm the district court’s grant
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of summary judgment to Gerber on Bruton’s claims that the labels were deceptive
in violation of the UCL, FAL, and CLRA.
4. The district court erred in granting summary judgment to Gerber on
Bruton’s claims that the labels were unlawful under the UCL. The UCL’s
unlawful prong “borrows” predicate legal violations and treats them as
independently actionable under the UCL. Wang v. Massey Chevrolet, 97 Cal. App.
4th 856, 871 (2002). The best reading of California precedent is that the
reasonable consumer test is a requirement under the UCL’s unlawful prong only
when it is an element of the predicate violation. Compare, e.g., Consumer
Advocates v. Echostar Satellite Corp., 113 Cal. App. 4th 1351, 1354, 1360 (2003)
(holding that UCL claims were subject to the reasonable consumer test where the
predicate violations were of the FAL and CLRA, both of which require meeting the
reasonable consumer test); with Los Angeles Mem’l Coliseum Comm’n v.
Insomniac, Inc., 233 Cal. App. 4th 803, 835 (2015) (holding that a UCL claim was
properly stated—without mention of the reasonable consumer test—where the
predicate violation was of federal tax law). The predicate violation here is of
California’s Sherman Law, see Cal. Health & Safety Code §§ 110760, 110765,
which itself incorporates standards set by FDA regulations, see id. §§ 110100,
110670. These FDA regulations include no requirement that the public be likely to
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experience deception. See 21 C.F.R. §§ 101.13(b)(3), 101.60(c)(2)(v). We reverse
the district court’s grant of summary judgment to Gerber on Bruton’s claims that
the labels were unlawful in violation of the UCL.
AFFIRMED in part, REVERSED in part, and REMANDED
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