2006-03-22-Legal Docs-Merrick is involved here!


2006/03/22
COURT HEARING:
ALAMEDA APPELET COURTS http://tinyurl.com/bvgp4t

TemplateName=html/complittentativerulinginfo.html&CaseNbr=VG04135956&CurrBatchNbr=1
TR – Motion to Strike – Denied
This Tentative Ruling is issued by Judge Ronald M. Sabraw Motion to strike of Pet Nutrition Inc. regarding the First Amended Cross-Complaint of Pet Food Express is DENIED. See separate order.
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2006/03/22
TR – Demurrer Sustained With Leave to Amend
This Tentative Ruling is issued by Judge Ronald M. Sabraw Demurrer of Petcurean Pet Nutrition Inc. to First Amended Cross-Complaint of Pet Food Express is SUSTAINED WITH LEAVE TO AMEND. See separate order. Pet Food Express must file a Second Amended Cross-Complaint on or before April 5, 2006. Cross-Defendants must file responsive pleadings on or before May 1, 2006.
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2006/03/22
TR – Motion to Amend – Granted
This Tentative Ruling is issued by Judge Ronald M. Sabraw FACTUAL BACKGROUND. Petcurean Pet Nutrition is a Canada based company that manufactures, distributes, and sells Go! Natural pet food. Go! Natural pet food is marketed as a natural pet food. Pet Food Express marketed and sold Go! Natural pet food in California.

In June 2003, Petcurean retained Merrick (Blue Sky) to manufacture the pet food in the United States.

In October 2003, Petcurean and Pet Food Express starting receiving notices that pets who ate the pet food were getting ill. Petcurean issued a recall of the pet food and Pet Food Express created a claims process for pet owners to seek reimbursement for food refunds, pet testing, and certain medical bills.

In a subsequent investigation by the FDA, it appeared that the ingestion of Go! Natural pet food was the only common factor identified in the case of identified pets. The FDA also found that in many of its tests the amount of BHA (an anti-oxidant) in the pet food manufactured by Merrick was above the regular levels. PROCEDURAL ISSUES.

On March 10, 2006, Plaintiffs filed a Notice of Appeal from the Court’s order denying Plaintiffs’ motion for class certification. Plaintiffs have informed the Court that they may abandon the appeal based how the Court decides the issues addressed in this order and the motion for consolidation to be heard on April 6, 2006. The issues addressed by this order and to be addressed in the motion for consolidation are not affected directly by the class certification order, so the Court will not stay these proceedings automatically under C.C.P. 916. After April 6, 2006, any party may file a motion to stay these proceedings pending the outcome of the appeal from the order denying class certification.

Plaintiffs have filed a motion to consolidate Match v. Petcurean and Hanrahan v. Petcurean and that motion is set for April 6, 2006. The Court treats the motions heard on March 22, 2006, as parallel motions that are filed and heard separately in Match v. Petcurean and Hanrahan v. Petcurean. MOTION OF PLAINTIFFS FOR LEAVE TO FILE THIRD AMENDED COMPLAINT Motion of Plaintiffs for leave to file Third Amended Complaint is GRANTED.

Plaintiffs seek leave to amend to add a claim for fraud against Petcurean and Merrick and to seek emotional distress and punitive damages related to the intentional tort of fraud. Defendants Petcurean and Merrick oppose the motion for leave to amend, arguing that the evidence will not support those claims, that Plaintiffs unreasonably delayed in asserting the claims, and that the new allegations will require new discovery.

The Court is guided by the policy of permitting amendments to the pleadings liberally to ensure that all claims and defenses are presented in a case. The proposed complaint adequately states a claim for fraud against Petcurean and Merrick. If Plaintiff can prove their claim for intentional fraud, then they might be permitted to recover emotional distress and punitive damages.

The Court has considered Klein v. Earth Elements, Inc. (1997) 59 Cal. App. 4th 965, and finds it distinguishable because it concerns the unintentional sale of contaminated pet food and was decided at summary judgment. Plaintiffs have not unreasonably delayed in asserting the claims. If Plaintiffs or Defendants seek extensive new discovery, the Court will consider limitations on discovery or similar remedial measures to limit any burden caused by the amendments. Plaintiffs have submitted a revised proposed Third Amended Complaint that addresses certain of the ministerial objections made by Defendants. Plaintiffs must file the revised proposed Third Amended Complaint on or before March 31, 2006. Defendants must file responsive pleadings on or before May 1, 2006. DEMURRER OF PETCUREAN PET NUTRITION INC. TO CROSS-COMPLAINT OF PET FOOD EXPRESS. Demurrer of Petcurean Pet Nutrition Inc. to First Amended Cross-Complaint of Pet Food Express is SUSTAINED WITH LEAVE TO AMEND.

This motion concerns the First Amended Cross-Complaint of Pet Food Express filed on January 18, 2006. Demurrer to the fourth cause of action for fraud is OVERRULED. Under the heightened pleading standards for fraud, Pet Food Express adequately states a claim against Petcurean. Demurrer to the fifth cause of action for unfair competition and false advertising under Business and Professions Code 17200 et seq and 17500 et seq (the “UCL”) is SUSTAINED WITH LEAVE TO AMEND. This claim, particularly paragraph 30, is vague. Pet Food Express adequately states a claim against Petcurean on its own behalf. Paragraph 30, however, implies that Pet Food Express is seeking to prosecute the UCL claim on behalf of a class of persons or on behalf of the general public. Following the Court’s recent order on the motion of Plaintiffs for class certification, it appears highly unlikely that the Court would grant a similar motion for class certification brought by Pet Food Express.

Following the recent amendments to the UCL made by proposition 64, it appears that a private party can no longer represent the general public. Pet Food Express must file a Second Amended Cross-Complaint on or before April 5, 2006. Cross-Defendants must file responsive pleadings on or before May 1, 2006. MOTION TO STRIKE OF PET NUTRITION INC. REGARDING CROSS-COMPLAINT OF PET FOOD EXPRESS. Motion to strike of Pet Nutrition Inc. regarding the First Amended Cross-Complaint of Pet Food Express is DENIED.

The Cross-Complaint adequately alleges a basis for the award of punitive damages – that Petcurean willfully sold Go! Natural pet food to Pet Food Express knowing that the ingredients in the food were different from the ingredients on the label.

This is a claim for an intentional tort, not mere negligence in the sale and marketing of pet food. See Robinson Helicopter Co., Inc. v. Dana Corp. (2005) 34 Cal. 4th 979, 991-992 (plaintiff can state tort claim when a defendant has made affirmative misrepresentations on which the plaintiff has relied and which exposed the plaintiff to liability for personal damages independent of the plaintiff’s economic loss). The Court has considered Klein v. Earth Elements, Inc. (1997) 59 Cal. App. 4th 965, and finds it distinguishable because it concerns the unintentional sale of contaminated pet food and was decided at summary judgment. The Court has considered McDonell v. American Trust Co. (1955) 130 Cal. App. 2d 296, and finds it distinguishable because in that case the plaintiff alleged only that the defendant landlord was aware of the defective condition of the roof and drains and, knowing they could cause damage, refused to repair them.

Those allegations did not describe an intentional tort because they failed to allege that the landlord not only created an unreasonable risk of bodily harm but also that there was a high degree of probability that substantial harm would result.

The Complaint in this case adequately alleges that Petcurean knew there was a high degree of probability that substantial harm would result when it sold contaminated pet food.

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One response to “2006-03-22-Legal Docs-Merrick is involved here!

  1. Pingback: 2006-03-22-Merrick-involved with Petcurean Law Suits « Formally – Lets Talk Pet Foods

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