1 greenberg traurig, llp rick l. shackelford (sbn … · rick l. shackelford (sbn 151262)...
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NOTICE OF REMOVAL LA 133390183v1
GREENBERG TRAURIG, LLP Rick L. Shackelford (SBN 151262) [email protected] Daniell K. Newman (SBN 242834) [email protected] GREENBERG TRAURIG, LLP 1840 Century Park East, Suite 1900 Los Angeles, CA 90067-2121 Telephone: 310-586-7700; Fax: 310-586-7800
Attorneys for Defendants Ocean Spray Cranberries, Inc. and Arnold Worldwide, LLC
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
CRYSTAL HILSLEY, on behalf of herself and all others similarly situated,
Plaintiff,
v.
OCEAN SPRAY CRANBERRIES, INC.; ARNOLD WORLDWIDE LLC, and Doe Defendants 1 through 5, inclusive,
Defendant.
CASE NO.:
DEFENDANT OCEAN SPRAY CRANBERRY, INC.’S NOTICE OF REMOVAL PURSUANT TO 28 U.S.C. § 1332(d)(2) (CAFA)
Action Filed: September 19, 2017 Date of Removal: November 16, 2017
'17CV2335 MDDGPC
Case 3:17-cv-02335-GPC-MDD Document 1 Filed 11/16/17 PageID.1 Page 1 of 10
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2 NOTICE OF REMOVAL
LA 133390183v1
TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that Defendant Ocean Spray Cranberries, Inc.
(“Defendant Ocean Spray”) hereby removes the above-captioned action, Hilsley v. Ocean
Spray Cranberries, Inc., Arnold Worldwide LLC, Case No. 37-3017-00034868-CU-BT-
CTL (the “Action”) from the California Superior Court for the County of San Diego to
the United States District Court for the Southern District of California pursuant to 28
U.S.C. §§ 1332(a), 1332(d), and 1446(b) on the grounds articulated below. Defendant
Ocean Spray hereby provides “a short and plain statement of the grounds for removal”
pursuant to 28 U.S.C. § 1446(a) (emphasis added). In the event that the Court requires
that Defendant Ocean Spray prove the facts alleged in this pleading, or to otherwise
establish jurisdiction, Defendant Ocean Spray is prepared to do so.1
STATEMENT OF JURISDICTION
1. This Court has original jurisdiction over this action under the Class Action
Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1332(d). In relevant part, CAFA grants
District Courts original jurisdiction over civil class actions filed under federal or state law
in which any member of a class of plaintiffs is a citizen of a state different from any
defendant, where the putative class size exceeds 100 persons, and where the amount in
controversy for the putative class members in the aggregate exceeds the sum or value of
$5,000,000, exclusive of interest and costs. As set forth below, this case meets all of
CAFA’s requirements for removal and is timely and properly removed by the filing of
this Notice.2
1 A notice of removal “need not contain evidentiary submissions.” Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547. 551 (2014). See Janis v. Health Net, Inc., 472 F. App’x 533, 534 (9th Cir. 2012) (“Nothing in 28 U.S.C. § 1446 requires a removing defendant to attach evidence of the federal court’s jurisdiction to its notice of removal. Section 1446(a) requires merely a ‘short and plain statement of the grounds for removal.’”). Rather, as the Supreme Court has clarified, “if the plaintiff contests the defendant’s allegation . . . both sides submit proof and the court decides, by a preponderance of the evidence, whether the amount-in-controversy requirement has been satisfied.” Dart Cherokee, 135 S. Ct. at 553-554.
2 Because removal is made pursuant to CAFA, each Defendant need not consent to removal. See United Steel v. Shell Oil Co.,549 F.3d 1204, 1208 (9th Cir. 2008).
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3 NOTICE OF REMOVAL
LA 133390183v1
VENUE
2. The action was filed in the Superior Court of the State of California for the
County of San Diego. Venue properly lies in the United States District Court for the
Southern District of California pursuant to 28 U.S.C. §§ 84(a), 1391(a), and 1441(a).
COMPLIANCE WITH STATUTORY REQUIREMENTS
3. In accordance with 28 U.S.C. § 1446(a), true and correct copies of all
pleadings, process, and orders served upon Defendant Ocean Spray are attached hereto as
Exhibits A-C. For the Court’s ease of reference, these documents consist respectively of:
Plaintiff’s Summons and Complaint (Exhibit A), and additionally, Defendant Ocean
Spray’s State Court Answer (Exhibit B), and Defendant Arnold Worldwide, LLC’s State
Court Answer (Exhibit C).
SERVICE ON THE STATE COURT
4. Pursuant to 28 U.S.C. § 1446(d), contemporaneously with the filing of this
Notice of Removal in the United States District Court for the Southern District of
California, written notice of such filing will be given by the undersigned to Plaintiff’s
Counsel of Record and a copy of the Notice of Removal, will be filed with the Clerk of
the San Diego County Superior Court.
PLEADINGS, PROCESS AND ORDERS
5. On or about September 19, 2017, Plaintiff, on behalf of herself and others
similarly situated, filed a Complaint in the Superior Court for the County of San Diego,
captioned Crystal Hilsley v. Ocean Spray Cranberries, Inc., Arnold Worldwide LLC,
Case No. 37-3017-00034868-CU-BT-CTL (“Complaint”). A true and correct copy of the
Summons and Complaint filed in San Diego County Superior Court is attached hereto as
Exhibit A. On October 17, 2017, Plaintiff served the Complaint on Defendant Ocean
Spray.
6. On November 16, 2017, Defendants filed their respective answers in San
Diego Superior Court. True and correct copies of the answers are attached hereto as
Exhibits B and C.
Case 3:17-cv-02335-GPC-MDD Document 1 Filed 11/16/17 PageID.3 Page 3 of 10
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4 NOTICE OF REMOVAL
LA 133390183v1
7. According to the Complaint, Plaintiff and the members of the putative class
she purports to represent are (or were) “[a]ll California citizens who purchased the
Products or the Related Products in California on or after January 1, 2011, excluding
Defendants and Defendants’ officers, directors, employees, agents, and affiliates, and the
Court and its staff.” [Complaint, ¶ 101.] The Products or Related Products referenced in
¶ ¶ 7 and 95 of the Complaint are alleged to be Ocean Spray Cran Apple, Ocean Spray
Cran Grape, Ocean Spray “100% Apple” juice drink, Ocean Spray Cranberry Juice
Cocktail, Ocean Spray Wave Apple with White Cranberries, Ocean Spray Wave Berry
Medley, Ocean Spray Cran Cherry, Ocean Spray Cran Pineapple, Ocean Spray Cran
Pomegranate, Ocean Spray Diet Cran Pomegranate, Ocean Spray Diet Cran Cherry, and
Ocean Spray Cranberry Cherry Flavor 100% Juice. [Complaint, ¶¶ 7, 95.]
8. The Complaint seeks to allege six causes of action for: (1) Consumers Legal
Remedies Act, Cal. Cal. Civ. Code §§1750 et seq.; (2) Unfair Competition Law, Cal.
Bus. & Prof. Code §§17200 et seq. (unlawful prong); (3) Unfair Competition Law, Cal.
Bus. & Prof. Code §§17200 et seq. (unfair prong); (4) False Advertising Law, Cal. Bus.
& Prof. Code §§17500 Et Seq.; (5) Breach of Express Warranty; and (6) Breach Of
Implied Warranty.
TIMELINESS OF THE REMOVAL
9. This removal is timely. Defendant Ocean Spray has thirty (30) days from
the date of service or receipt of a copy of the Complaint to remove a case. 28 U.S.C. §
1446(b). Defendant Ocean Spray was served with a copy of the Complaint on October
17, 2017. This Notice of Removal is therefore timely filed.3
3 Moreover, as the Ninth Circuit Court of Appeal has held and clarified, CAFA removal is timely at any time so long as (1) the face of the complaint does not plainly allege all elements needed for traditional diversity (including the amount in controversy), and (2) plaintiff has not served some other “paper” which concedes all elements needed for traditional diversity. See Roth v. CHA Hollywood Med. Ctr., L.P., 720 F.3d 1121, 1125-26 (9th Cir. 2013) (a removing defendant may remove “on the basis of its own information, provided that it has not run afoul of either of the thirty-day deadlines” set forth in 28 U.S.C. § 1446(b)(1) and (b)(3); “a defendant’s subjective knowledge cannot
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5 NOTICE OF REMOVAL
LA 133390183v1
ORIGINAL JURISDICTION PURSUANT TO CAFA
10. This Court has jurisdiction over this case under CAFA, 28 U.S.C. § 1332(d),
and this case may be removed pursuant to the provisions of 28 U.S.C. § 1441 (a), in that
it is a civil class action wherein: (1) the proposed class contains at least 100 members; (2)
no Defendant is a state, state official or other governmental entity; (3) the total amount in
controversy for all class members exceeds $5 million; and, (4) there is diversity between
at least one class member and one Defendant. CAFA authorizes removal of such actions
in accordance with 28 U.S.C. § 1446.
The Proposed Class Contains At Least 100 Members
11. Plaintiff purports to represent a putative class defined as “[a]ll California
citizens who purchased the Products or the Related Products in California on or after
January 1, 2011.” [Complaint, ¶ 101.] Such a putative class is substantially in excess of
100 persons, since the Products or Related Products as listed in the Complaint (¶¶ 7, 95)
comprise no less than twelve Ocean Spray products.4 The twelve products are sold by
retailers throughout the state of California, and are purchased by substantially more than
convert a non-removable action into a removable one such that the thirty-day time limit of § 1446(b)(1) or (b)(3) begins to run against the defendant”); see also Rea v. Michaels Stores Inc., 742 F.3d 1234, 1238 (9th Cir. 2014) (reaffirming Roth holding; “We also recently held in Roth v. CHA Hollywood Medical Center, L.P., that the two 30–day periods are not the exclusive periods for removal. 720 F.3d 1121, 1124–25 (9th Cir.2013). In other words, as long as the complaint or “an amended pleading, motion, order or other paper” does not reveal that the case is removable, the 30–day time period never starts to run and the defendant may remove at any time.”); Taylor v. Cox Commc'ns Cal., LLC, 673 Fed. App’x 734, 735 (9th Cir. 2016) (“We also hold that Defendants’ second Notice of Removal was timely. ‘A CAFA case may be removed [by a defendant] at any time, provided that neither of the two thirty-day periods under § 1446(b)(1) and (b)(3) has been triggered.’”). Here, the face of the Complaint nor the FAC plainly alleges all elements needed for removal, and Plaintiff has not served some other “paper” which concedes all elements needed for removal. For example, no amount in controversy is, or has been, stated in any paper received from Plaintiff. Thus, as dictated by Roth and its progeny, this removal would also be timely irrespective of the initial 30 day period.
4 Plaintiff further expands the list beyond these related products to “include, among others, without limitation” the explicitly listed twelve products. [Complaint, ¶ 95.]
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6 NOTICE OF REMOVAL
LA 133390183v1
100 persons. As such, the putative class exceeds 100 persons.
Defendants Are Not a Governmental Entity
12. Defendants are not a state, state official, or other governmental entity.
Minimum Diversity Exists
13. CAFA’s diversity requirement is satisfied when “any member of a class of
plaintiffs is a citizen of a State different from any defendant.” 28 U.S.C. §§
1332(d)(2)(A), 1453.
14. Plaintiff and many of the other putative class members, are citizens of
California. [Complaint, ¶¶ 19, 101.] Accordingly, at least one member of the putative
class is a citizen of the State of California.
15. For diversity purposes, a corporation “shall be deemed a citizen of any State
by which it has been incorporated and of the State where it has its principal place of
business.” 28 U.S.C. § 1332(c)(1). To determine a corporation’s principal place of
business, courts apply the “nerve center” test, which deems the principal place of
business to be the state in which the corporation’s officers direct, control, and coordinate
the corporation’s activities. The Hertz Corp. v. Friend, 130 S.Ct. 1181, 1192 (2010). A
corporation’s principal place of business will typically be where the corporation
maintains its headquarters. Id.
16. Defendant Ocean Spray is a corporation incorporated under the laws of the
State of Delaware, and has its corporate headquarters, where its corporation’s officers
reside and direct, control, and coordinate the corporation’s activities, in the State of
Massachusetts. Thus, Defendant Ocean Spray is a citizen of the State of Delaware, where
it is incorporated, and of Massachusetts, where it has its principal place of business.
17. Plaintiff and some other putative class members are citizens of California,
and not of Delaware or Massachusetts, and Defendant Ocean Spray is a citizen of
Delaware and Massachusetts, and not of California. Therefore, at least one putative class
member is diverse from Defendant Ocean Spray, CAFA’s minimal diversity requirement
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7 NOTICE OF REMOVAL
LA 133390183v1
is met.5
The Amount in Controversy on Putative Class Claims Exceeds $5,000,000
18. The amount in controversy includes claims for general and special damages,
penalties, and attorney’s fees if recoverable by statute or contract, and punitive damages.
E.g., Richmond v. Allstate Ins. Co., 897 F. Supp. 447, 449-450 (S.D. Cal. 1995); Miller v.
Michigan Millers Ins. Co., 1997 WL 136242 at *4-5 (N.D. Cal., 1997); 28 U.S.C. §§
1332(d)-(e), 1453, 1711-1715.
19. This jurisdictional element “is what amount is put ‘in controversy’ by the
plaintiff’s complaint, not what a defendant will actually owe.” Korn v. Polo Ralph
Lauren Corp., 536 F.Supp.2d 1199, 1205 (E.D. Cal. 2008) (quoting Rippee v. Boston
Market Corp., 408 F.Supp.2d 982, 986 (S.D.Cal.2005)). “In measuring the amount in
controversy, ‘a court must assume that the allegations of the complaint are true and
assume that a jury will return a verdict for the plaintiff on all claims made in the
complaint.’” Korn, 536 F.Supp.2d at 1205 (quoting Kenneth Rothschild Trust v. Morgan
Stanley Dean Witter, 199 F.Supp.2nd 993, 1001 (C.D. Cal. 2002).
20. Further, defenses that a defendant may assert – such as a statute of limitation
– are not considered in assessing the amount placed in controversy. Riggins v. Riggins,
415 F.2d 1259, 1262 (9th Cir. 1969) (“None of these facts are disclosed by the complaint;
the court must resolve them in determining the validity of the defense of the statute of
limitations; and the possibility of such a defense being valid does not affect the
jurisdiction of the district court to hear and determine the controversy”). Hernandez v.
Towne Park, Ltd., 2012 WL 2373372, *10 (C.D. Cal., June 22, 2012) (“the fact that
[defendant] may assert a limitations defense does not limit the relief sought in the
complaint”); Lara v. Trimac Transp. Services (W.) Inc., 2010 WL 3119366, *3 (C.D.
Cal., August 6, 2010) (“affirmative defenses …may not be invoked to demonstrate that
5 Because diversity of citizenship between one Plaintiff and one Defendant exists and is sufficient under CAFA, the citizenship of Arnold Worldwide, LLC (or any other defendant) is immaterial.
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LA 133390183v1
the amount in controversy is actually less than the jurisdictional limits.”).
21. Though the Defendants concede no liability on Plaintiff's claims, assuming
that all of Plaintiff’s allegations are true, Plaintiff’s putative class claims place in
controversy a sum greater than $5,000,000.
22. Specifically, Plaintiff seeks, among other things, an “award [to] Plaintiff and
the other Class-members restitution, actual damages, and punitive damages”; and that
Defendants “pay all costs of suit, expenses, and attorney fees.” [Complaint, ¶ 13, Prayer
for Relief G-H; K-L.] Moreover, Plaintiff and the putative class seek an “order [to]
disgorge any benefits received from Plaintiff and any unjust enrichment.” [Complaint,
Prayer for Relief F.]
23. Plaintiff alleges that her “claims are typical of and are not antagonistic to the
claims of other Class members. Plaintiff and the class members all purchased the
Products or Related Products, were deceived by the false and deceptive labeling, and lost
money as a result.” [Complaint, ¶ 105.]
24. Plaintiff alleges that she “purchased [the Products] at the marked retail
prices, typically $3.98 for a 64-ounce plastic bottle and from time to time at other
promotional prices.” [Complaint, ¶ 79.] Conservative calculations utilizing her alleged
typical (Complaint, ¶105) purchases, spanning a class period of close to 7 years (“on or
after January 1, 2011”) (Complaint, ¶101), multiplied by all the “California citizens who
purchased the Products or the Related Products in California” (Id.; see ¶7, supra) easily
places the amount in controversy in excess of $5,000,000, given the millions of purchases
of the twelve products that would necessarily be implicated and placed at issue across
Plaintiff’s putative class definition and period.
25. Plaintiff and her putative class also seek (i) injunctive relief,6 (See e.g.,
6 “In actions seeking declaratory or injunctive relief, it is well established that the amount in controversy is measured by the value of the object of the litigation.” Hunt v. Wash. State Apple Advert. Com'n, 432 U.S. 333, 347 (1977); Luna v. Kemira Specialty, Inc., 575 F. Supp. 2d 1166, 1172 (C.D. Cal. 2008) (same). The “amount in controversy” requirement is satisfied where either plaintiff can gain or defendant can lose the
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9 NOTICE OF REMOVAL
LA 133390183v1
Complaint, at ¶¶ 110(k), 113, 187), (ii) attorney fees and costs,7 (See e.g., Complaint, at
¶¶ 13, 110(k), 151, Prayer for Relief ¶L), and (iii) punitive damages (See e.g., Complaint,
at ¶¶ 13, 110(k), Prayer for Relief ¶H). Again, none of these additional recoveries are
included in the foregoing purchase extrapolation, though they would substantially
increase the amount in controversy well beyond the $5,000,000 threshold.
26. Plainly, the amount “in controversy” on these putative class claims exceeds
$5,000,000.
NO ADMISSION
27. Defendants expressly admit of no liability to Plaintiff or to the putative class
she seeks to represent, does not admit that Plaintiff is an adequate class representative for
the class that she seeks to represent, and does not admit that Plaintiff or the putative class
members are entitled to recover the damages, penalties, and other relief requested in the
Complaint. Defendants in no way admit that the instant action satisfies the requirements
for class certification. However, this Action meets all of CAFA’s requirements for
removal, and this removal pleading is both timely and proper.
///
///
///
///
jurisdictional amount. See In re Ford Motor Co./Citibank (S.D.), 264 F. 3d 952, 958 (9th Cir. 2001) (holding that, for purposes of calculating amount in controversy, “[t]he value of the thing sought to be accomplished by the action may be related to either or any party to the action”). In effect, Plaintiff’s request for injunctive relief multiplies the amount in controversy by projecting the past amount in controversy into the future.
7 See Simmons v. PCR Tech., 209 F. Supp. 2d 1029, 1034 (N.D. Cal. 2002) (“Plaintiff insists that attorneys’ fees are limited to those accrued at time of removal, maintaining that additional fees are too speculative. Plaintiff is mistaken. [In Galt] [t]he Ninth Circuit clearly … anticipated that district courts would project fees beyond removal.”); Celestino v. Renal Advantage Inc., 2007 WL 1223699, at *4 (N.D. Cal. 2007) (“the amount in controversy includes not only damages accrued up to the time of removal, but also a reasonable assessment of damages likely to be accrued after the time of removal”).
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10 NOTICE OF REMOVAL
LA 133390183v1
WHEREFORE, the Action is hereby removed to this Court from the Superior
Court of the State of California, County of San Diego.
Respectfully submitted,
Dated: November 16, 2017 GREENBERG TRAURIG, LLP
By: /s/ Rick L. ShackelfordRick L. Shackelford Daniell K. Newman
Attorneys for Defendants Ocean Spray Cranberries, Inc. and Arnold Worldwide, LLC
Case 3:17-cv-02335-GPC-MDD Document 1 Filed 11/16/17 PageID.10 Page 10 of 10
American LegalNet, Inc. www.FormsWorkFlow.com
JS 44 (Rev. 06/17) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS CRYSTAL HILSLEY, on behalf of herself and all others similarly situated
DEFENDANTS OCEAN SPRAY CRANBERRIES, INC.; and ARNOLD WORLDWIDE LLC,
(b) County of Residence of First Listed Plaintiff San Diego County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
GREENBERG TRAURIG, Rick L. Shackelford 1840 Century Park East, # 1900, Los Angeles, CA 90067-2121 Tel: 310-586-3831
THE ELLIOT LAW FIRM, David Elliot 3200 Fourth Avenue, Suite 207, San Diego, CA 92103 Tel: 619-468-4865 II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES
(For Diversity Cases Only)(Place an “X” in One Box for Plaintiff
and One Box for Defendant)
1 U.S. Government
Plaintiff
2 U.S. Government
Defendant
3 Federal Question
(U.S. Government Not a Party)
4 Diversity
(Indicate Citizenship of Parties in Item III)
Citizen of This State
Citizen of Another State
Citizen or Subject of a Foreign Country
PTF DEF
1 1
2 2
3 3
Incorporated or Principal Place of Business In This State
Incorporated and Principal Placeof Business In Another State
Foreign Nation
PTF DEF
4 4
5 5
6 6
IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment & Enforcement of Judgment
151 Medicare Act
152 Recovery of Defaulted Student Loans (Excludes Veterans)
153 Recovery of Overpayment of Veteran’s Benefits
160 Stockholders’ Suits
190 Other Contract
195 Contract Product Liability
196 Franchise
PERSONAL INJURY
310 Airplane
315 Airplane ProductLiability
320 Assault, Libel &Slander
330 Federal Employers’Liability
340 Marine
345 Marine ProductLiability
350 Motor Vehicle
355 Motor VehicleProduct Liability
360 Other PersonalInjury
362 Personal Injury -Medical Malpractice
PERSONAL INJURY
365 Personal Injury -Product Liability
367 Health Care/Pharmaceutical Personal Injury
Product Liability
368 Asbestos PersonalInjury Product Liability
PERSONAL PROPERTY
370 Other Fraud
371 Truth in Lending
380 Other PersonalProperty Damage
385 Property DamageProduct Liability
625 Drug Related Seizureof Property 21 USC 881
690 Other
422 Appeal 28 USC 158
423 Withdrawal28 USC 157
375 False Claims Act
376 Qui Tam (31 USC3729(a))
400 State Reapportionment
410 Antitrust
430 Banks and Banking
450 Commerce
460 Deportation
470 Racketeer Influenced andCorrupt Organizations
480 Consumer Credit
490 Cable/Sat TV
850 Securities/Commodities/Exchange
890 Other Statutory Actions
891 Agricultural Acts
893 Environmental Matters
895 Freedom of InformationAct
896 Arbitration
899 Administrative ProcedureAct/Review or Appeal of Agency Decision
950 Constitutionality ofState Statutes
PROPERTY RIGHTS
820 Copyrights
830 Patent
835 Patent - AbbreviatedNew Drug Application
840 Trademark
LABOR SOCIAL SECURITY
710 Fair Labor StandardsAct
720 Labor/ManagementRelations
740 Railway Labor Act
751 Family and MedicalLeave Act
790 Other Labor Litigation
791 Employee RetirementIncome Security Act
861 HIA (1395ff)
862 Black Lung (923)
863 DIWC/DIWW (405(g))
864 SSID Title XVI
865 RSI (405(g))
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS FEDERAL TAX SUITS
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property
440 Other Civil Rights
441 Voting
442 Employment
443 Housing/Accommodations
445 Amer. w/Disabilities-Employment
446 Amer. w/Disabilities-Other
448 Education
Habeas Corpus:
463 Alien Detainee
510 Motions to VacateSentence
530 General
535 Death Penalty Other:
540 Mandamus & Other
550 Civil Rights
555 Prison Condition
560 Civil Detainee -Conditions of Confinement
870 Taxes (U.S. Plaintiffor Defendant)
871 IRS—Third Party26 USC 7609
IMMIGRATION
462 Naturalization Application
465 Other ImmigrationActions
V. ORIGIN (Place an “X” in One Box Only)
1 Original Proceeding
2 Removed from State Court
3 Remanded from Appellate Court
4 Reinstated or Reopened
5 Transferred from Another District
(specify)
6 Multidistrict Litigation- Transfer
8 Multidistrict Litigation - Direct File
VI. CAUSE OF ACTION
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
28 U.S.C.§ 1332(d)(2) CAFA Diversity Brief description of cause:
Consumer Product Class Action
VII. REQUESTED IN COMPLAINT:
CHECK IF THIS IS A CLASS ACTION UNDER RULE 23, F.R.Cv.P.
DEMAND $
Over $5 Million CHECK YES only if demanded in complaint:
JURY DEMAND: Yes No
VIII. RELATED CASE(S) IF ANY
(See instructions):JUDGE DOCKET NUMBER
DATE November 16, 2017 SIGNATURE OF ATTORNEY OF RECORD /s/ Rick L. ShackelfordFOR OFFICE USE ONLY
RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE
'17CV2335 MDDGPC
Case 3:17-cv-02335-GPC-MDD Document 1-1 Filed 11/16/17 PageID.11 Page 1 of 2
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JS 44 Reverse (Rev. 06/17)
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)".
II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked.Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party.
IV. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code that is most applicable. Click here for: Nature of Suit Code Descriptions.
V. Origin. Place an "X" in one of the seven boxes.Original Proceedings. (1) Cases which originate in the United States district courts.Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.When the petition for removal is granted, check this box.Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers ormultidistrict litigation transfers.Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.Section 1407.Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.
PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due tochanges in statue.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.
Case 3:17-cv-02335-GPC-MDD Document 1-1 Filed 11/16/17 PageID.12 Page 2 of 2
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1 ANSWER OF OCEAN SPRAY TO HILSLEY’S COMPLAINT
GREENBERG TRAURIG, LLP Rick L. Shackelford (SBN 151262) [email protected] Adam Siegler (SBN 116233) [email protected] GREENBERG TRAURIG, LLP 1840 Century Park East, Suite 1900 Los Angeles, CA 90067-2121 Telephone: 310-586-7700; Fax: 310-586-7800
Attorneys for Defendants Ocean Spray Cranberries, Inc. and Arnold Worldwide, LLC
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
CRYSTAL HILSLEY, on behalf of herself and all others similarly situated,
Plaintiff,
v.
OCEAN SPRAY CRANBERRIES, INC.; ARNOLD WORLDWIDE LLC, and Doe Defendants 1 through 5, inclusive,
Defendant.
CASE NO.: 37-3017-00034868-CU-BT-CTL
ANSWER TO PLAINTIFF’S COMPLAINT BY DEFENDANT OCEAN SPRAY CRANBERRIES, INC.
Action Filed: September 19, 2017
Exhibit B - Page 36
Case 3:17-cv-02335-GPC-MDD Document 1-3 Filed 11/16/17 PageID.50 Page 2 of 11
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2 ANSWER OF OCEAN SPRAY TO HILSLEY’S COMPLAINT
Defendant OCEAN SPRAY CRANBERRIES, INC. (“Defendant” or “Ocean Spray”), for itself
alone and for no other parties, hereby answers the Complaint (“Complaint”) of Plaintiff CRYSTAL
HILSLEY (“Plaintiff”) as follows:
GENERAL DENTIAL
Under the provisions of Code of Civil Procedure section 431.30, Defendant denies, generally and
specifically, each, every and all of the allegations contained therein, and denies that Plaintiff has or will
sustain damages in the sum or sums alleged, or in any other sum or sums, or at all.
AFFIRMATIVE DEFENSES
Defendant sets forth below their affirmative defenses. By setting forth these affirmative
defenses, Defendant does not assume the burden of proving any fact, issue, or element of a cause of
action where such burden properly belongs to Plaintiff.
FIRST AFFIRMATIVE DEFENSE
(Failure To State A Cause Of Action)
Each cause of action in the Complaint fails to state a claim upon which relief can be granted.
SECOND AFFIRMATIVE DEFENSE
(Equitable Defenses - Laches)
Plaintiff’s claims against Defendant are barred, in whole or in part, by the doctrine of laches.
THIRD AFFIRMATIVE DEFENSE
(Equitable Defenses - Waiver)
Plaintiff’s claims against Defendant are barred, in whole or in part, by the doctrine of waiver
FOURTH AFFIRMATIVE DEFENSE
(Equitable Defenses - Estoppel)
Plaintiff’s claims against Defendant are barred, in whole or in part, by the doctrine of estoppel.
FIFTH AFFIRMATIVE DEFENSE
(Good Faith)
Each cause of action is barred, in whole or in part, because Defendant acted in good faith at all
times.
Exhibit B - Page 37
Case 3:17-cv-02335-GPC-MDD Document 1-3 Filed 11/16/17 PageID.51 Page 3 of 11
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3 ANSWER OF OCEAN SPRAY TO HILSLEY’S COMPLAINT
SIXTH AFFIRMATIVE DEFENSE
(First Amendment Rights)
The Complaint, and each cause of action therein, is barred to the extent that the conduct
complained of is protected by the free speech provisions of the Constitution of the State of California
and the Constitution of the United States of America.
SEVENTH AFFIRMATIVE DEFENSE
(Puffing)
Plaintiff’s claims for false advertising are barred to the extent the alleged deceptive statements
were such that no reasonable person could have reasonably relied upon or misunderstood Defendant’s
statements as claims of fact.
EIGHTH AFFIRMATIVE DEFENSE
(Lack of Intent)
Plaintiff’s claims based on alleged willful misrepresentations are barred because the
representations and actions alleged were not intended to mislead or deceive consumers.
NINTH AFFIRMATIVE DEFENSE
(Causation Is Lacking)
Each cause of action is barred, in whole or in part, because Plaintiff has not sustained any injury
or damage by reason of any act or omission on Defendant’s part.
TENTH AFFIRMATIVE DEFENSE
(Lack of Awareness)
Plaintiffs’ claims are barred, in whole or in part, because consumers lacked awareness of the
alleged misrepresentations by Defendant described in the Complaint.
ELEVENTH AFFIRMATIVE DEFENSE
(Lack of Reliance)
Plaintiff’s claims are barred, in whole or in part, because of the lack of reliance by consumers on
the alleged misrepresentations by Defendant identified in the Complaint.
Exhibit B - Page 38
Case 3:17-cv-02335-GPC-MDD Document 1-3 Filed 11/16/17 PageID.52 Page 4 of 11
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4 ANSWER OF OCEAN SPRAY TO HILSLEY’S COMPLAINT
TWELFTH AFFIRMATIVE DEFENSE
(Compliance with Laws)
Plaintiff’s claims are barred because the conduct alleged in the Complaint complies with
applicable laws, including but not limited to Food and Drug Administration regulations and the Food,
Drug, and Cosmetic Act.
THIRTEENTH AFFIRMATIVE DEFENSE
(Conduct Not Fraudulent Nor Likely To Deceive)
Defendant’s conduct is not fraudulent and was not likely to mislead or deceive consumers and/or
the public.
FOURTEENTH AFFIRMATIVE DEFENSE
(Lack of Materiality)
Plaintiff’s claims based on alleged misrepresentations are barred because the representations
alleged by Plaintiff were not material in that, in light of information commonly known to consumers,
they were not likely to affect their purchasing decisions. Defendant’s representations and actions alleged
in the Complaint were not likely to mislead consumers acting reasonably under the circumstances.
FIFTEENTH AFFIRMATIVE DEFENSE
(Lack of Standing)
Plaintiff lacks either standing and/or capacity to bring some or all of the claims alleged in the
Complaint.
SIXTEENTH AFFIRMATIVE DEFENSE
(Federal Preemption)
Plaintiff’s claims are expressly and impliedly preempted by federal law, including but not
limited to, the Food, Drug and Cosmetic Act.
SEVENTEENTH AFFIRMATIVE DEFENSE
(Adequate Remedy at Law)
Plaintiff’s claims for equitable relief are barred to the extent there is an adequate remedy at law.
Exhibit B - Page 39
Case 3:17-cv-02335-GPC-MDD Document 1-3 Filed 11/16/17 PageID.53 Page 5 of 11
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5 ANSWER OF OCEAN SPRAY TO HILSLEY’S COMPLAINT
EIGHTEENTH AFFIRMATIVE DEFENSE
(No Right to Injunctive Relief)
To the extent the Complaint seeks injunctive relief, Plaintiff is not entitled to such relief because
the hardship that would be imposed on Defendant by any such relief would be greatly disproportionate
to any hardship that Plaintiff might suffer in its absence. Further, any injunctive relief that would
require regulation by the Court on an ongoing basis is inappropriate, in that Defendant’s advertising and
marketing activities are already monitored by various federal and state agencies.
NINETEENTH AFFIRMATIVE DEFENSE
(No Right to Punitive or Exemplary Damages)
Plaintiff is not entitled to punitive or exemplary damages on any cause of action alleged in the
Complaint. Any award of punitive or exemplary damages would violate the due process and/or equal
protection clauses of the Constitution of the State of California and the Constitution of the United States
of America.
TWENTIETH AFFIRMATIVE DEFENSE
(No Attorneys’ Fees)
Plaintiff’s request for attorneys’ fees in this matter is barred because it lacks any basis in law or
contract.
TWENTY-FIRST AFFIRMATIVE DEFENSE
(Unjust Enrichment)
Plaintiff’s claims are barred to the extent Plaintiff would be unjustly enriched if allowed to
recover any monies claimed to be due in the Complaint.
TWENTY-SECOND AFFIRMATIVE DEFENSE
(Damages Caused By Other Causes)
To the extent that Plaintiff suffered any damages, such damages were proximately caused by
persons, entities, and/or factors or events other than Defendant and for which Defendant was not and is
not responsible.
Exhibit B - Page 40
Case 3:17-cv-02335-GPC-MDD Document 1-3 Filed 11/16/17 PageID.54 Page 6 of 11
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6 ANSWER OF OCEAN SPRAY TO HILSLEY’S COMPLAINT
TWENTY-THIRD AFFIRMATIVE DEFENSE
(Failure to Mitigate)
Without admitting any wrongful conduct on the part of Defendant, and without admitting that
Plaintiff has suffered any loss, damage or injury, recovery for any such loss, damage, or injury is barred,
in whole or in part, because Plaintiff failed to mitigate such loss, damage, or injury.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
(Lack of Damages, Speculative Damages)
Plaintiff has not suffered any damage as a result of any actions allegedly taken by Defendant,
and are thus barred from asserting any claim against Defendant. Plaintiffs’ requested monetary relief is
too speculative and/or remote and/or impossible to prove and/or allocate.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
(Justification/Excuse)
Defendant’s alleged actions, at all relevant times and places, were necessary to the competitive
operation of its business, and Plaintiff’s alleged injury, if any, is outweighed by the benefit to the public
of Defendant’s actions.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
(Statute of Limitations)
Plaintiff’s claims are barred by the applicable statutes of limitations, including but not limited to
the following:
• Civ. Code § 1783 – three years, CLRA.
• Bus. & Prof. Code § 17208 – four years, UCL.
• C.C.P. § 337 – four years, written contracts.
• C.C.P. § 338 – three years, action based on statute, fraud or mistake.
• C.C.P. § 343 – four years, action not otherwise provided for in preceding sections.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
(Set-off)
Defendant alleges that, even if Plaintiff’s claims are meritorious, which Defendant denies, those
claims are subject to setoff and recoupment
Exhibit B - Page 41
Case 3:17-cv-02335-GPC-MDD Document 1-3 Filed 11/16/17 PageID.55 Page 7 of 11
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TWENTY.EIGHTH AFFIRMATIVE DEFENSE
(Unconstitutionality Of Monetary Relief)
An award of monetary relief, other than restitution, to Claimant under California Civil Code
Sections I750, et seq. or California Business & Professions Code Sections 17200 and 17500, including
but not limited to penalties of any type, would violate the due process provisions of the Constitution of
the State of California and the Constitution of the United States of America.
T\ryENTY-NINTH AFFIRMATIVE DEFENSE
(Reservation)
Further responding, Defendant has insufficient knowledge or information on which to form a
belief as to whether they may have additional, as yet unstated, affirmative defenses available, and
reserves the right to assert additional affirmative defenses in the event that discovery indicates it would
be appropriate.
DEMAND FOR TRIAL BY JURY
Defendant hereby demands atrial by jury of the claims and defenses in this action.
PRAYER
WHEREFORE, Defendant prays for judgment as follows:
1. That Plaintiff takes nothing by way of the Complaint;
2. That the Complaint be dismissed with prejudice and judgment entered in favor of
Defendant;
3. That Defendant be awarded its costs, disbursements and attorneys' fees, to the extent
available by law; and
4. For such other and further relief as this Court deems just and proper.
Dated: November 16, 2017 GREENBERG URIG, LLP
By:L.S
Adam SieglerAttorneys for DefendantsOcean Spray Cranberries, Inc. andArnold Worldwicle, LLC
7
ANswpR oF OcEAN Spn¡.v ro HILSLEY's Colr¿pLRINt
Exhibit B - Page 42
Case 3:17-cv-02335-GPC-MDD Document 1-3 Filed 11/16/17 PageID.56 Page 8 of 11
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PROOF OF SERVICE(IIÍlsIey, et al,, v, Ocean Spray Cranberries Inc., et al.r)
SDS C Cas e No : 37-301 7-00034868-CU-BT-CTL
STATE OF CALIFORNIA COUNTY OF LOS ANGELES
I am employed in the aforesaid county, State of California; I am over the age of l8 years and notaparty to the wittrii action; my business address is 1840 Century Park East, Suite 1900' Los Angeles,California 90067.
On the date given below, I served ANS\ryER TO PLAINTIFF'S COMPLAINT BYDEFENDANT OCEAN SPRAY CRANBERRIES, INC. on the interested parties in this action byplacing the true copy thereof, enclosed in a sealed envelope addressed as follows:
David ElliotTHE ELLIOT LAV/ FIRM3200 Fourth Avenue, Suite 207
San Diego, CA 92103TeI: 619-468-4865
I (nY MAIL)I t deposited such envelope in the mail at Los Angeles, California. The envelope was mailedwith postage thereon fully prepaid.
! I am readily familiar with the business practice of my place of employment in respect to the
collection and processing of corespondence, pleadings and notices for mailing with United
States Postal Service. The foregoing sealed envelope was placed for collection and mailing this
date consistent with the ordinary business practice of my place of employment, so that it will be
picked up this date with postage thereon fully prepaid at Los Angeles, California, in the ordinarycourse of such business.
X 1By OVERNIGHT COURIER) I deposited such envelope for collection and deliveryby an
overnight courier service with delivery fees paid or provided for in accordance with ordinarybusiness practices. I am "readily familiar" with the firm's practice of collection and processing
packages for overnight delivery by an overnight courier service. They are deposited with a
facility regularly maintained by the overnight courier service for receipt on the same day in the
ordinary course of business.
(BY ELECTRONIC SERVICE VIA E-FILING SYSTEM)In accordance with the electronic filing procedures of this Court, service has been effected on the
aforesaid party(s) above, whose counsel of record is a registered participant of San DiegoSuperior Court E-Filing system.
LA 133390240PROOF OF SERVICE
Exhibit B - Page 43
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X 1nY ELECTRONIC MAIL). COURTESY
On the below date, I transmitted the foregotransmission was reported as complete andmade as a professional courtesy to counsel,
ing document(s) bywithout error. This
electronic mail, and themethod of service was
(srArE) I declare under penalty of perjury under the laws of the State of Californiathat the foregoing is true and correct.
Executed on November 16,2017, at Los Angeles,
Debbie
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LA 133390240PROOF OF SERVICE
Exhibit B - Page 44
Case 3:17-cv-02335-GPC-MDD Document 1-3 Filed 11/16/17 PageID.58 Page 10 of 11
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Crystal Hilsley vs Ocean Spray Cranberries lnc
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CU-BT-CTL
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Answer to Plaintiff's Complaint by Ocean Spray Cranberries, lnc.
Copyright @ 2017 One Legal LLC ' www.onelegal.com
https : /þlatform. onelegal. com/OrderReceipllndexl 212200 43 rt/t612017
Exhibit B - Page 45
Case 3:17-cv-02335-GPC-MDD Document 1-3 Filed 11/16/17 PageID.59 Page 11 of 11
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1 ANSWER OF ARNOLD WORLDWIDE TO HILSLEY’S COMPLAINT
LA 133389860
GREENBERG TRAURIG, LLP Rick L. Shackelford (SBN 151262) [email protected] Adam Siegler (SBN 116233) [email protected] GREENBERG TRAURIG, LLP 1840 Century Park East, Suite 1900 Los Angeles, CA 90067-2121 Telephone: 310-586-7700; Fax: 310-586-7800
Attorneys for Defendants Ocean Spray Cranberries, Inc. and Arnold Worldwide, LLC
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
CRYSTAL HILSLEY, on behalf of herself and all others similarly situated,
Plaintiff,
v.
OCEAN SPRAY CRANBERRIES, INC.; ARNOLD WORLDWIDE LLC, and Doe Defendants 1 through 5, inclusive,
Defendant.
CASE NO.: 37-3017-00034868-CU-BT-CTL
ANSWER TO PLAINTIFF’S COMPLAINT BY DEFENDANT ARNOLD WORLDWIDE, LLC
Action Filed: September 19, 2017
Exhibit C - Page 46
Case 3:17-cv-02335-GPC-MDD Document 1-4 Filed 11/16/17 PageID.61 Page 2 of 12
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2 ANSWER OF ARNOLD WORLDWIDE TO HILSLEY’S COMPLAINT
LA 133389860
Defendant ARNOLD WORLDWIDE, LLC (“Defendant” or “Arnold”), for itself alone and for
no other parties, hereby answers the Complaint (“Complaint”) of Plaintiff CRYSTAL HILSLEY
(“Plaintiff”) as follows:
GENERAL DENTIAL
Under the provisions of Code of Civil Procedure section 431.30, Defendant denies, generally and
specifically, each, every and all of the allegations contained therein, and denies that Plaintiff has or will
sustain damages in the sum or sums alleged, or in any other sum or sums, or at all.
AFFIRMATIVE DEFENSES
Defendant sets forth below their affirmative defenses. By setting forth these affirmative
defenses, Defendant does not assume the burden of proving any fact, issue, or element of a cause of
action where such burden properly belongs to Plaintiff.
FIRST AFFIRMATIVE DEFENSE
(Failure To State A Cause Of Action)
Each cause of action in the Complaint fails to state a claim upon which relief can be granted.
SECOND AFFIRMATIVE DEFENSE
(Equitable Defenses - Laches)
Plaintiff’s claims against Defendant are barred, in whole or in part, by the doctrine of laches.
THIRD AFFIRMATIVE DEFENSE
(Equitable Defenses - Waiver)
Plaintiff’s claims against Defendant are barred, in whole or in part, by the doctrine of waiver
FOURTH AFFIRMATIVE DEFENSE
(Equitable Defenses - Estoppel)
Plaintiff’s claims against Defendant are barred, in whole or in part, by the doctrine of estoppel.
FIFTH AFFIRMATIVE DEFENSE
(Good Faith)
Each cause of action is barred, in whole or in part, because Defendant acted in good faith at all
times.
Exhibit C - Page 47
Case 3:17-cv-02335-GPC-MDD Document 1-4 Filed 11/16/17 PageID.62 Page 3 of 12
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3 ANSWER OF ARNOLD WORLDWIDE TO HILSLEY’S COMPLAINT
LA 133389860
SIXTH AFFIRMATIVE DEFENSE
(First Amendment Rights)
The Complaint, and each cause of action therein, is barred to the extent that the conduct
complained of is protected by the free speech provisions of the Constitution of the State of California
and the Constitution of the United States of America.
SEVENTH AFFIRMATIVE DEFENSE
(Puffing)
Plaintiff’s claims for false advertising are barred to the extent the alleged deceptive statements
were such that no reasonable person could have reasonably relied upon or misunderstood Defendant’s
statements as claims of fact.
EIGHTH AFFIRMATIVE DEFENSE
(Lack of Intent)
Plaintiff’s claims based on alleged willful misrepresentations are barred because the
representations and actions alleged were not intended to mislead or deceive consumers.
NINTH AFFIRMATIVE DEFENSE
(Causation Is Lacking)
Each cause of action is barred, in whole or in part, because Plaintiff has not sustained any injury
or damage by reason of any act or omission on Defendant’s part.
TENTH AFFIRMATIVE DEFENSE
(Lack of Awareness)
Plaintiffs’ claims are barred, in whole or in part, because consumers lacked awareness of the
alleged misrepresentations by Defendant described in the Complaint.
ELEVENTH AFFIRMATIVE DEFENSE
(Lack of Reliance)
Plaintiff’s claims are barred, in whole or in part, because of the lack of reliance by consumers on
the alleged misrepresentations by Defendant identified in the Complaint.
Exhibit C - Page 48
Case 3:17-cv-02335-GPC-MDD Document 1-4 Filed 11/16/17 PageID.63 Page 4 of 12
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4 ANSWER OF ARNOLD WORLDWIDE TO HILSLEY’S COMPLAINT
LA 133389860
TWELFTH AFFIRMATIVE DEFENSE
(Compliance with Laws)
Plaintiff’s claims are barred because the conduct alleged in the Complaint complies with
applicable laws, including but not limited to Food and Drug Administration regulations and the Food,
Drug, and Cosmetic Act.
THIRTEENTH AFFIRMATIVE DEFENSE
(Conduct Not Fraudulent Nor Likely To Deceive)
Defendant’s conduct is not fraudulent and was not likely to mislead or deceive consumers and/or
the public.
FOURTEENTH AFFIRMATIVE DEFENSE
(Lack of Materiality)
Plaintiff’s claims based on alleged misrepresentations are barred because the representations
alleged by Plaintiff were not material in that, in light of information commonly known to consumers,
they were not likely to affect their purchasing decisions. Defendant’s representations and actions
alleged in the Complaint were not likely to mislead consumers acting reasonably under the
circumstances.
FIFTEENTH AFFIRMATIVE DEFENSE
(Lack of Standing)
Plaintiff lacks either standing and/or capacity to bring some or all of the claims alleged in the
Complaint.
SIXTEENTH AFFIRMATIVE DEFENSE
(Federal Preemption)
Plaintiff’s claims are expressly and impliedly preempted by federal law, including but not
limited to, the Food, Drug and Cosmetic Act.
SEVENTEENTH AFFIRMATIVE DEFENSE
(Adequate Remedy at Law)
Plaintiff’s claims for equitable relief are barred to the extent there is an adequate remedy at law.
Exhibit C - Page 49
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5 ANSWER OF ARNOLD WORLDWIDE TO HILSLEY’S COMPLAINT
LA 133389860
EIGHTEENTH AFFIRMATIVE DEFENSE
(No Right to Injunctive Relief)
To the extent the Complaint seeks injunctive relief, Plaintiff is not entitled to such relief because
the hardship that would be imposed on Defendant by any such relief would be greatly disproportionate
to any hardship that Plaintiff might suffer in its absence. Further, any injunctive relief that would
require regulation by the Court on an ongoing basis is inappropriate, in that Defendant’s advertising and
marketing activities are already monitored by various federal and state agencies.
NINETEENTH AFFIRMATIVE DEFENSE
(No Right to Punitive or Exemplary Damages)
Plaintiff is not entitled to punitive or exemplary damages on any cause of action alleged in the
Complaint. Any award of punitive or exemplary damages would violate the due process and/or equal
protection clauses of the Constitution of the State of California and the Constitution of the United States
of America.
TWENTIETH AFFIRMATIVE DEFENSE
(No Attorneys’ Fees)
Plaintiff’s request for attorneys’ fees in this matter is barred because it lacks any basis in law or
contract.
TWENTY-FIRST AFFIRMATIVE DEFENSE
(Unjust Enrichment)
Plaintiff’s claims are barred to the extent Plaintiff would be unjustly enriched if allowed to
recover any monies claimed to be due in the Complaint.
TWENTY-SECOND AFFIRMATIVE DEFENSE
(Damages Caused By Other Causes)
To the extent that Plaintiff suffered any damages, such damages were proximately caused by
persons, entities, and/or factors or events other than Defendant and for which Defendant was not and is
not responsible.
Exhibit C - Page 50
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6 ANSWER OF ARNOLD WORLDWIDE TO HILSLEY’S COMPLAINT
LA 133389860
TWENTY-THIRD AFFIRMATIVE DEFENSE
(Failure to Mitigate)
Without admitting any wrongful conduct on the part of Defendant, and without admitting that
Plaintiff has suffered any loss, damage or injury, recovery for any such loss, damage, or injury is barred,
in whole or in part, because Plaintiff failed to mitigate such loss, damage, or injury.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
(Lack of Damages, Speculative Damages)
Plaintiff has not suffered any damage as a result of any actions allegedly taken by Defendant,
and are thus barred from asserting any claim against Defendant. Plaintiffs’ requested monetary relief is
too speculative and/or remote and/or impossible to prove and/or allocate.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
(Justification/Excuse)
Defendant’s alleged actions, at all relevant times and places, were necessary to the competitive
operation of its business, and Plaintiff’s alleged injury, if any, is outweighed by the benefit to the public
of Defendant’s actions.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
(Statute of Limitations)
Plaintiff’s claims are barred by the applicable statutes of limitations, including but not limited to
the following:
• Civ. Code § 1783 – three years, CLRA.
• Bus. & Prof. Code § 17208 – four years, UCL.
• C.C.P. § 337 – four years, written contracts.
• C.C.P. § 338 – three years, action based on statute, fraud or mistake.
• C.C.P. § 343 – four years, action not otherwise provided for in preceding sections.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
(Set-off)
Defendant alleges that, even if Plaintiff’s claims are meritorious, which Defendant denies, those
claims are subject to setoff and recoupment
Exhibit C - Page 51
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7 ANSWER OF ARNOLD WORLDWIDE TO HILSLEY’S COMPLAINT
LA 133389860
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
(Unconstitutionality Of Monetary Relief)
An award of monetary relief, other than restitution, to Claimant under California Civil Code
Sections 1750, et seq. or California Business & Professions Code Sections 17200 and 17500, including
but not limited to penalties of any type, would violate the due process provisions of the Constitution of
the State of California and the Constitution of the United States of America.
TWENTY-NINTH AFFIRMATIVE DEFENSE
(No CLRA Notice)
Defendant was not timely notified under the Consumer Legal Remedies Act.
THIRTIETH AFFIRMATIVE DEFENSE
(No CLRA Liability)
Defendant did not make or label any of the goods alleged in the Complaint and cannot be liable
under the Consumer Legal Remedies Act.
THIRTY-FIRST AFFIRMATIVE DEFENSE
(No UCL Liability)
Defendant did not make or label any of the goods alleged in the Complaint and cannot be liable
under the Unfair Competition Law. Similarly, Defendant did not and does not sell to consumers or
compete with other manufacturers of foods and beverages.
THIRTY-SECOND AFFIRMATIVE DEFENSE
(No Express Or Implied Warranty)
Defendant understands that the fifth and sixth causes of action for express and implied warranty
to not name this answering Defendant. To the extent that they do, Defendant did not make or label any
of the goods alleged in the Complaint, did not warrant them, and did not enter into any “bargain” with
consumers. Accordingly, Defendant cannot be liable for express or implied warranty.
THIRTY-THIRD AFFIRMATIVE DEFENSE
(Reservation)
Further responding, Defendant has insufficient knowledge or information on which to form a
belief as to whether they may have additional, as yet unstated, affirmative defenses available, and
Exhibit C - Page 52
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reserves the right to assert additional affirmative defenses in the event that discovery indicates it would
be appropriate.
DEMAND FOR IAI, RY.IIIRY
Defendant hereby demands atrial by jury of the claims and defenses in this action.
PRAYER
WHEREFORE, Defendant prays for judgment as follows:
1. That Plaintiff takes nothing by way of the Complaint;
2. That the Complaint be dismissed with prejudice and judgment entered in favor of
Defendant;
3. That Defendant be awarded its costs, disbursements and attorneys' fees, to the extent
available by law; and
4. For such other and further relief as this Court deems just and proper.
Dated: November 16,2017 GREENBERG TRAURIG, LLP
By:Rick LAdam Siegler
Attorneys for DefendantsOcean Spray Cranberries, Inc. andArnold V/orldwide,LLC
8
LA 133389860v1ANswpR or ARNor-o WoRt-owIoE To HILSLEY's CoMPLAINT
Exhibit C - Page 53
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PROOF OF SERVICE(I{iIsIey, et aI., v, Ocean Spray Cranberries Inc,, et al.,)
SDS C Cas e No : 37-301 7-00034868-CU-BT-CTL
STATE OF CALIFORNIA COUNTY OF LOS ANGELES
I am employed in the aforesaid county, State of California; I am over the age of 18 years and notaparty to the within action; my business address is 1840 Century Park East, Suite 1900, Los Angeles,California 90067.
On the date given below, I served ANS\ilER TO PLAINTIFF'S COMPLAINT BYDEFENDANT ARNOLD \ryORLDWIDE, LLC on the interested parties in this action by placing the
true copy thereof, enclosed in a sealed envelope addressed as follows:
David ElliotTHE ELLIOT LAW FIRM3200 Fourth Avenue, Suite 207San Diego, CA 92103Tel: 619-468-4865
[ (BY MAIL)! I deposited such envelope in the mail at Los Angeles, California. The envelope was mailedwith postage thereon fully prepaid.
I I am readily familiar with the business practice of my place of employment in respect to the
collection and processing of corespondence, pleadings and notices for mailing with UnitedStates Postal Service. The foregoing sealed envelope was placed for collection and mailing thisdate consistent with the ordinary business practice of my place of employment, so that it will be
picked up this date with postage thereon fully prepaid at Los Angeles, California, in the ordinarycourse of such business.
X 1BY OVERNIGHT COURIER) I deposited such envelope for collection and delivery by an
overnight courier service with delivery fees paid or provided for in accordance with ordinarybusiness practices. I am"readily familiar" with the firm's practice of collection and processing
packages for overnight delivery by an overnight courier service. They are deposited with a
facility regularly maintained by the overnight courier service for receipt on the same day in the
ordinary course of business.
(BY ELECTRONIC SERVICE VIA E-FILING SYSTEM)In accordance with the electronic filing procedures of this Court, service has been effected on the
aforesaid party(s) above, whose counsel of record is a registered participant of San DiegoSuperior Court E-Filing system.
LA 133390240PROOF OF SERVICE
Exhibit C - Page 54
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X 1nY ELECTRONIC MAIL). COURTESYOn the below date, I transmitted the foregoing document(s) bytransmission was reported as complete and without error. Thismade as a professional courtesy to counsel.
electronic mail, and themethod of service was
(srArE) I declare under penalty of perjury under the laws of the State of Californiathat the foregoing is true and correct.
Executed on November 16,2017, at Los Angeles, California.
Debbie
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LA 133390240PROOF OF SERVICE
Exhibit C - Page 55
Case 3:17-cv-02335-GPC-MDD Document 1-4 Filed 11/16/17 PageID.70 Page 11 of 12
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