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FILED AUG 23 2019 : Clerk of y Br Ate au SUPERIOR COURT FOR THE STATE OF CALIFORNIA, COUNTY OF NAPA. ANIMAL LEGAL DEFENSE FUND, Case No, 26-6116 ORDER RE: PLAINTIFF'S MOTION TO LIFT STAY AND RESCHEDULE CASE | MANAGEMENT CONFERENCE; AND Plaintiff, vs ORDER RE: COURT’S MOTION FOR LT NAPA PARTNERS, LLC, et al, OE Oe Defendants. | Plaintiff's motion to lift the stay and reschedule the case management conference came on for hearing on July 11, 2019, at which time the court heard oral argument and took the matter under submission. ‘The court subsequently issued an order on July 15, 2019, continuing plaintiff's motion to August 22, 2019. The court scheduled for that same date its own motion for judgment on the pleadings, with both sides being given an opportunity to file briefs and present argument, On that date, the matters were heard and taken under submission, After further research and consideration, the court now GRANTS the motion for judgment on the pleadings, and denies as MOOT plaintiff's motion to lift the stay and reschedule the case management conference. On November 30, 2015, defendants moved to dismiss this case on the ground, in part, that plaintiff could not establish that any unlawful conduct was “likely” to recur. On January 14, 2016, the court construed defendants’ motion to dismiss as a motion for judgment on the ploadings for failure to state a cause of action, as it was apparently intended by defendants, Although the court at that time opted to deny the motion without prejudice and to instead stay the action pending results of the federal litigation, the court specifically acknowledged that it could 1 ‘grant 2 motion for judgment on the pleadings “upon its own motion.” (Code Civ. Proc. § 438, subd..(b)(2),) ‘Now that more than six years have passed since the filing of this case, and the parties agree there are no longer grounds to continue the stay that has been in place for much of that time, defendants have renewed their request to dist the matter. The court finds it appropriate to consider the current adequacy of the pleadings in light of the passage of time and other judicially noticeable facts. A “motion for judgment on the pleadings should be granted if, under the facts as alleged in the pleading or subject to judicial notice, the complaint fails to state facts sufficient to constitute a cause of action.” (County of Orange v. Assn. of Orange County Deputy ‘Sheriffs (2011) 192 Cal.App-Ath 21, 32.) Plaintiff's complaint includes only one cause of action for “Violations of the Unfair Competition Law [UCL].” Besides fees and costs, the only remedy sought in conjunetion with the UCL claim is injunctive relief barring defendants from committing future violations of Health and Safety Code section 25982. To obtain the injunctive relief itis seeking under the UCL, plaintiff must prove there is a “‘reasonable probability that the past acts complained of will, recur[.]” (Colgan v. Leatherman Tool Group, Ine. (2006) 135 Cal.App.4th 663, 702, quoting California Service Station etc. Assn. v. Union Oil Co, (1991) 232 Cal.App.3d 44, 57.) And specifically with regard to the instant motion for judgment on the pleadings, the presumed-to-be true allegations of the plaintiff's complaint, coupled with judicially noticeable facts, must be sufficient to support a finding that defendants will probably commit further violations of section 25982 in the absence of an injunction barring the same, ‘The complaint filed in 2013 alleges that defendants violated section 25982 “routinely,” “dozens of times ~ perhaps even hundreds of times — since the product’s ban went into effect on July 1,2012." It explained that defendants were “selling” foie gras specifically by including it in conjunction with and in consideration of the purchase of other items. It further alleges specific, eye-witnessed violations by defendants, through offerings under the guise of “gifts,” on two occasions in 2012 and on one occasion in 2013, and a continuation of doing so. Further, the complaint alleges that “Defendant Frank has been a public and outspoken opponent of the foie gras ban,” that he testified in senate hearings prior to the law's passage, that he debated the issue on a news television show, and that he opined regarding the law driving sales of foie gras “underground.” The complaint further likens defendants’ way of selling foie gras to that, 2 described by a different chef as a way to “get around” or “evade” the law by, for example, “charging $50 for a glass of wine and serving it with complimentary foie gras.” Finally, the complaint alleges, in broad terms, that defendants “continue to sell” foie gras. When the complaint’s allegations were made, the statute was new and there was no legal precedent yet clarifying whether section 25982 banned as a “sale” the serving of foie gras on a purportedly complimentary basis, but in conjunction with other bargained-for imenw items, In light of that then-existing legal ambiguity, which was later clarified by the Court of Appeal, there is no question that the complaint did previously state a claim for injunctive relief on the grounds that the attempted “get-around” violations were continuing and/or were likely to recur. (See Animal Legal Defense Fund v. LT Napa Partners LLC (2015) 234 Cal.App.4th 1270.) ‘Since that time, however, the court can, and should in the interest of judicial economy, take judicial notice of the facts, not only that the constitutionality of section 25982 has been amply litigated and upheld in the six-plus years that have passed since the filing of the complaint, but also that our First District Court of Appeal has in the interim weighed in with its published decision holding specifically that the term “sold” in section 25982 encompasses “serving foie gras as part of a tasting menu, regardless of whether there is a separate charge for the foie gras, whether it is listed on the menu, and whether it is characterized as a “gift” by the restaurant.” (Animal Legal Defense Fund v. LT Napa Partners LLC, supra, 234 Cal.App-Ath at p. 1289). Thus, the core of the prior violation allegations (that defendants were selling the foie gras indirectly as a component of or in conjunction with other purchased items to “get around” the law) is no longer a possibility pursuant to the published decision clarifying that the purported gifts are, in fact, sales in direct violation of section 25982, A recurrence of the prior conduct would no longer be merely an sitempt to skirt the law as alleged, but would instead be a full, knowing and blatant disregard of it - something plaintiff never alleged. In pragmatic terms, the question before the court on this motion is, if the case went to trial tomorrow, defendants stipulated to the truth of every allegation of the complaint, and the parties submitted the matter with no presentation of evidence, could the court conclude there is @ likelihood defendants would continue to sell foie gras in violation of section 25982. The court believes it could not do so. Plaintiff's counsel even conceded at oral argument that a recurrence of sales as specifically alleged in the complaint is not likely to happen. ‘There are simply insufficient allegations in the complaint to support a finding that such a complete change of tactic by the defendants, i . directly and knowingly violating the clarified law versus testing undecided boundaries of it, is likely to happen. With this tum of events, the court coneludes that the complaint no longer supports the claim for injunctive relief. (See Mallon v. Long Beach (1958) 164, Cal. App.2d 178 [“where events occur after the filing of the complaint which render an injunction unnecessary, it will ordinarily be refused”].) In opposition to this motion and at oral argument, plaintiff argued that the court should not limit the scope of the complaint’s allegations to the type of sales specifically alleged and instead consider that defendants could still violate the law in a manner not analyzed by the Court of Appeal, such as random giveaways for customer birthdays and such. The problem with this reasoning is that there are no such allegations. In the context of this litigation centering on what constitutes a sale in violation of section 25982, the broad allegation that defendants continue to sell” is conclusory and should not be considered for purposes of judgment on the pleadings. (See Bettencourt v. Hennessy Indus., Inc. (2012) 205 Cal. App.4th 1103, 1111.) Contrary to plaintiff's contention, it is appropriate in this motion for the court to analyze the actual, non- conclusory allegations and conclude that the complaint no longer alleges a viable claim for injunctive relief. (See Madrid v, Perot Systems Corp. (2005) 130 Cal.App.4th 440, 465 [analyzing whether a likelihood of recurrence was viably pled in sustaining demurrer to injunction claim}.) . ‘The court made it clear in its July 15, 2019 oder that it would consider granting leave to amend for plaintiff to rectify the pleading deficiency. Plaintiff has given no indication of any ability to do so, Where the nature of a proposed amendment is not provided, it is appropriate for the court to deny leave to amend. (Tiffany v. Sierra Sands Unified Sch, Dist. (1980) 103, Cal.App.3d 218, 226.) Plaintiff instead requests an opportunity to conduct discovery, but provides no authority for such a request in the context of a motion for judgment on the pleadings. Moreover, in UCL matters, “[p]revailing plaintiffs are generally limited to injunctive relief and restitution.” (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 179.) Plaintiff has indicated no grounds for restitution not previously claimed. Thus, it does not appear alternative allegations or remedies could save plaintiff's UCL cause of action. ‘The court has also considered whether the cause of action could survive without a sufficient claim for a remedy. Courts have held that “the voluntary discontinuance of alleged illegal practices does not remove the pending charges of illegality from the sphere of judicial power or relieve the court of the duty of determining the validity of such charges where by the mere volition of a party the challenged practices may be resumed,” (Marin County Bd. of Realtors, Inc. v. Palsson (1976) 16 Cal.34 920, 929, quoting United States v. Ins. Bd. of Cleveland (N.D. Ohio 1956) 144 F.Supp. 684, 691.) Upon review, however, those cases do not negate the need to allege facts supporting a likelihood of recurrence. And to the extent the cases stand for the proposition that continuance of a claim (in a trial court) can be justified by the need for a judicial resolution of a dispute as to the legality of the challenged practices, the legality of the conduct alleged in this case has already been settled by the First District and does not need further confirmation by this court. (See United States v. Ins. Bd. of Cleveland, supra, at p. 691 [issues not moot where legality issue remains unsettled].) For the foregoing reasons, the court grants judgment on the pleadings, without leave to amend. Dated: (9G -2BAA ‘Victoria Wood, Judge Superior Court of California County of Napa 825 Brown Street Napa. CA 94559 Animal Legal Defense Fund vs. LT Napa Partners, LLC et al Michael Tenenbaum 1431 Ocean Ave, Suite 400 Santa Monica, CA 90801 Tyler Lobdell ‘Animal Legal Defense Fund 525 E Cotati Ave COTATI, CA 94931-4443 ‘hereby certify that | am not a party to this cause and that @ copy of the foregoing document was: mailed (frst class postage pre-pal in sealed envelope Certified copy faxed to Napa Sherif's Department at (707) 253-4103 ‘Ci personal service - porsonally delivered tothe party listed above placed in attorney/agency folders in the [Criminal Courthouse [] Historic Courthouse ‘at Napa, California on this date and that this certificate Is executed st Napa, California this Date. | arn readily familiar with the Court's standard practice for collection and processing of correspondence for maling within the United States Postal Service ‘and, inthe ordinary course of business, the correspondence would be deposited withthe United States Postal Service on the day on which it's collected at the Courtheuse, Ds 8123/2019 Robert E Fleshman, Court Executive Officer Rungclaot. Denise Troxclair, Depuly Court Executive Officer OFFICIAL RECEIPT Superior Court of California, County of Napa 825 Brown St. Napa, CA 94559 41111 Third St. Napa, CA 94559 Payor Receipt No. Ken Frank NA-2019-28268 Trangaction Date 08/26/2019 (Description ‘Amount Paid] Miscellaneous Payment Fee Preparing Copy of any Record 3.00 SUBTOTAL, 3.00 PAYMENT TOTAL. 3.00 Cash Tendered 3.00 Total Tendered 3.00 ‘Change 0.00 os26/2019 Cashier Aut 10:21 AM Station 1178. 1701500, OFFICIAL RECEIPT

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