Case 3:20-cv-04068-RS Document 46 Filed 07/14/21 Page 1 of 14
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`BARRY N. KAY, et al.,
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`Plaintiffs,
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`v.
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`COPPER CANE, LLC,
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`Defendant.
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`Case No. 20-cv-04068-RS
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`ORDER DENYING IN PART AND
`GRANTING IN PART WITH LEAVE
`TO AMEND MOTION TO DISMISS
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`I. INTRODUCTION
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`Plaintiffs Barry N. Kay and Bryan J. Dodge Jr. bring this putative class action challenging
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`as misleading the labels affixed to a line of Defendant Copper Cane, LLC’s (“Copper Cane”) pinot
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`noirs. Specifically, they claim to have been deceived by references to the wine’s appellation of
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`origin in Oregon generally and three valleys in Oregon specifically, as well as the grapes’
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`purported coastal roots. Copper Cane now moves to dismiss the operative complaint. For the
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`reasons set forth below, the motion is denied in part and granted in part with leave to amend.
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`A. Statutory Background
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`II. BACKGROUND
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`The Federal Alcohol Administration Act requires that alcoholic beverage labels comply
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`with regulations, issued by the Secretary of the Treasury, which must “prohibit deception of the
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`consumer” and ensure the consumer is equipped “with adequate information as to the identity and
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`quality of the products.” 27 U.S.C. §§ 205(e). The Secretary has delegated responsibility to the
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`Alcohol and Tobacco Tax and Trade Bureau (“TTB”) which has, in turn, issued regulations
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`Northern District of California
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`United States District Court
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`Case 3:20-cv-04068-RS Document 46 Filed 07/14/21 Page 2 of 14
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`prohibiting labeling likely to mislead a consumer. See, e.g., 27 C.F.R. § 4.64(a)(1) (prohibiting in
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`the advertisement of wine “[a]ny statement that is false or untrue in any material particular, or that,
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`irrespective of falsity, directly, or by ambiguity, omission, or inference, or by the addition of
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`irrelevant, scientific or technical matter, tends to create a misleading impression”); id. § 4.64(g)
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`(“No statement, design, device, or representation which tends to create the impression that the
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`wine originated in a particular place or region, shall appear in any advertisement unless the label
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`of the advertised product bears an appellation of origin, and such appellation of origin appears in
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`the advertisement in direct conjunction with the class and type designation.”).
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`Additionally, the TTB must approve all labels prior to use. 27 C.F.R. § 4.50(a) (“No
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`person shall bottle or pack wine, other than wine bottled or packed in U.S. Customs custody, or
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`remove such wine from the plant where bottled or packed, unless an approved certificate of label
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`approval, TTB Form 5100.31, is issued by the appropriate TTB officer.”). To obtain a certificate
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`of label approval (“COLA”), a beverage distributor must submit the appropriate form, which is
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`then reviewed by a TTB officer and stamped if it “complies with applicable laws and regulations.”
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`27 C.F.R. § 13.21. The application form requires a representation by the distributor that “all
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`statements appearing on the application are true and correct” and that “the representations on the
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`labels attached to this form . . . truly and correctly represent the content of the containers to which
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`these labels will be applied.” TTB Application for Certification/Exemption of Label/Bottle
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`Approval, Form 5100.31.
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`The TTB also has the authority to create appellations of origin for wine grapes and
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`American viticultural areas (“AVAs”).1 27 C.F.R. § 9.0. An appellation is a unit of origin, such as
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`a country, a single state, a grouping of up to three states, a county, a grouping of up to three
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`counties, or an AVA. Id. § 4.25(a). To merit a state appellation, (i) at least 75 percent of the wine
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`must be derived from fruit grown in the appellation area, (ii) the wine must be fully finished in the
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`state or an adjacent state, and (iii) the wine must conform to other regulations specific to the
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`1 An AVA is a recognized wine grape-growing region in the United States.
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`2
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`ORDER
`CASE NO. 20-cv-04068-RS
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`Northern District of California
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`United States District Court
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`

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`Case 3:20-cv-04068-RS Document 46 Filed 07/14/21 Page 3 of 14
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`appellation area. Id. § 4.25(b)(1). To qualify for an AVA designation, (i) the AVA must be
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`recognized by the TTB, (ii) at least 85 percent of the grapes must be grown in the AVA, and (iii)
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`the wine must be fully finished within a state in which the AVA is located. Id. § 4.25(e)(3).
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`Relevant here, the TTB recognizes Oregon as an appellation of origin, id. § 4.25(a), and the
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`Willamette Valley, Umpqua Valley, and Rogue Valley as separate AVAs. Id. § 9.90, 9.89, 9.132.
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`B. Factual Background2
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`The wine allegedly mislabeled here is a pinot noir called “Elouan.” It is distributed by
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`Copper Cane and, as relevant for present purposes, comes in a 2016 and 2017 vintage. Each year
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`sports a different label, though both describe the wine as an “Oregon Pinot Noir.” The 2016 label
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`references the “coastal hills” of Oregon as an “ideal region to grow” this type of wine. First
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`Amended Complaint (“FAC”) ¶ 37. The 2017 label also references the “coast” and includes a map
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`of Oregon with leaves denoting the locations of the Willamette, Umpqua, and Rogue Valleys.
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`FAC ¶ 39. It contains the phrase “Purely Oregon, Always Coastal.” Id. Additionally, marketing
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`materials related to the 2016 Elouan designate the same three valleys as “Regions of Origin,” and
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`describes them as “premiere growing regions along Oregon’s coast.” FAC ¶ 38. The boxes in
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`which both vintages were shipped refer to the “Oregon Coast” and the three valleys. Both back
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`labels contain, however, two lines of text referencing California. On both labels, the first line
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`provides: “VINTED & BOTTLED BY ELOUAN.” FAC ¶ 37, 39. Below, the 2016 provides:
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`“NAPA, CA • CONTAINS SULFITES.”; the 2017 reads “ACAMPO, CA • CONTAINS
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`SULFITES.” Id.
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`In 2018, the federal government forced Copper Cane to alter the Elouan labels after a
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`determination that they were misleading, though many bottles bearing the original labels are still
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`available in the marketplace. Plaintiffs do not describe what changes were made or include
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`pictures of the new labels. Copper Cane, however, attaches to its motion to dismiss the TTB
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`2 The factual background is based on the allegations in the complaint, which must be taken as true
`for purposes of this motion, as well as documents which may be incorporated by reference or of
`which judicial notice may be taken. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
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`3
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`ORDER
`CASE NO. 20-cv-04068-RS
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`Northern District of California
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`United States District Court
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`Case 3:20-cv-04068-RS Document 46 Filed 07/14/21 Page 4 of 14
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`permits for the 2016 label, as well as the original and updated 2017 label. The new label omits any
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`overt reference to any of the Oregon AVA valleys and replaces the phrase “Purely Oregon,
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`Always Coastal.” with the phase “Purely Elouan, Always Coastal.” Armstrong Declaration Ex. 3.
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`It also clarifies that the wine is “[m]ade in California in the signature Copper Cane style[.]” Id.
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`Plaintiff Kay purchased several bottles of 2016 Elouan in 2018, most recently from Total
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`Wine in Pasadena, California. Dodge purchased one bottle of the 2017 Elouan in his home state of
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`Louisiana in 2018. Asserting large consumer demand for wines from the Oregon AVAs, they
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`contend consumers are willing to pay a premium for wines from these regions. While both Kay
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`and Dodge indicate they would not have purchased the Elouan (nor paid a premium for it) had the
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`labeling not misled them, they claim they will continue to buy it if they can “rely upon the
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`truthfulness of Defendant’s labeling.” FAC ¶ 61, 64.
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`Plaintiffs accuse Copper Cane of falsely fostering the belief first that Elouan is a genuine
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`Oregon wine associated with the three AVAs referenced above, and second that the grapes are
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`grown on “coastal” vineyards. They contend the labels violate California’s Unfair Competition
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`Law (“UCL”), California’s Consumer Legal Remedies Act (“CLRA”), and California’s False
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`Advertising Law (“FAL”). They also assert Copper Cane has been unjustly enriched and breached
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`an express warranty. They seek ultimately to represent themselves and a similarly situated class of
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`oenophiles.
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`III. LEGAL STANDARD
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`Rule 12(b)(6) governs motions to dismiss for failure to state a claim. A complaint must
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`contain a short and plain statement of the claim showing the pleader is entitled to relief. Fed. R.
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`Civ. P. 8(a). While “detailed factual allegations” are not required, a complaint must have sufficient
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`factual allegations to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
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`U.S. 662, 678 (2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)). A Rule
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`12(b)(6) motion tests the legal sufficiency of the claims alleged in the complaint. See Parks Sch. of
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`Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Thus, dismissal under Rule 12(b)(6)
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`may be based on either the “lack of a cognizable legal theory” or on “the absence of sufficient
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`4
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`ORDER
`CASE NO. 20-cv-04068-RS
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`Northern District of California
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`United States District Court
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`

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`Case 3:20-cv-04068-RS Document 46 Filed 07/14/21 Page 5 of 14
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`facts alleged” under a cognizable legal theory. UMG Recordings, Inc. v. Shelter Capital Partners
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`LLC, 718 F.3d 1006, 1014 (9th Cir. 2013). When evaluating such a motion, courts generally
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`“accept all factual allegations in the complaint as true and construe the pleadings in the light most
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`favorable to the nonmoving party.” Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005).
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`However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
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`statements, do not suffice.” Iqbal, 556 U.S. at 678.
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`IV. DISCUSSION3
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`A. UCL, CLRA, and FAL Claims (Counts One, Two, and Three)4
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`1. Standing
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`Copper Cane argues Plaintiffs lack “standing” to pursue a UCL violation based on any
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`packaging or marketing materials and the 2017 label. It contends violations premised on
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`misrepresentations on the packaging or marketing materials must be dismissed because neither
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`Kay nor Dodge claims to have relied on anything other than the wine labels. Claims related to the
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`2017 Elouan must be dismissed, it argues, because Dodge is not a California resident nor did he
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`purchase the wine in California. Plaintiffs conceded at the hearing that their claims rise and fall on
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`the labels and that they do not seek to assert claims based on any other external materials.
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`The thornier question, however, is whether Dodge, a Louisianan and the only plaintiff
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`alleged to have purchased the 2017 Elouan, has standing to bring a claim under the UCL.
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`California consumer protection statutes “presumptively do not apply to occurrences outside
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`California.” Wilson v. Frito-Lay N. Am. Inc., 961 F.Supp.2d 1134, 1147 (internal quotation marks
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`and citation omitted) (citing Sullivan v. Oracle Corp., 51 Cal.4th 1191, 1207 (2011)).
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`Occasionally, however, such application is warranted. Ehret v. Uber Techs., Inc., 68 F.Supp.3d
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`3 Defendant’s unopposed request to take judicial notice of Elouan’s labels and the three COLAs
`attached to Copper Cane’s motion to dismiss is granted.
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`4 Because the parties substantially recycle their UCL arguments into their FAL and CLRA
`discussions, and Copper Cane’s arguments as to all three claims fail because Plaintiffs have
`identified an actionable misrepresentation, the claims are considered together.
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`5
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`ORDER
`CASE NO. 20-cv-04068-RS
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`Northern District of California
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`Case 3:20-cv-04068-RS Document 46 Filed 07/14/21 Page 6 of 14
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`1121, 1130 (N.D. Cal. 2014) (noting courts including the California Supreme Court have
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`permitted the application of California law in cases where alleged misrepresentations were
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`“disseminated from California”). To determine whether California law should apply, “courts
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`consider where the defendant does business, whether the defendant’s principal offices are located
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`in California, where class members are located, and the location from which advertising and other
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`promotional literature decisions were made.” In re Toyota Motor Corp., 785 F.Supp.2d 883, 917
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`(C.D. Cal. 2011).
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`Dodge is a Louisiana citizen who purchased one bottle of the 2017 Elouan in New Orleans,
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`Louisiana. A conclusion he has standing to assert a UCL claim would therefore seem to stretch to
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`a breaking point the presumption against extraterritorial application. See Wilson, 961 F.Supp.2d at
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`1147 (“[N]on-California residents’ [UCL, FAL, and CLRA] claims are not supported where none
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`of the alleged misconduct or injuries occurred in California.”). Though Copper Cane is based in
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`California and it is possible that marketing decisions may flow from its headquarters, Plaintiffs do
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`not allege Copper Cane handles its own marketing or that Dodge’s purchase was otherwise
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`“directed from California or had anything to do with California.” Id. The clarification in Plaintiffs’
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`opposition to the motion that “Defendant’s principal offices are in California, where it made its
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`misleading advertising and labeling decisions” is an improper attempt to amend their complaint
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`and cannot make up for what was not alleged in the FAC. Opposition (“Opp.”) at 8. Thus, an
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`inference, however reasonable, about the locus of corporate power does not overcome the heavy
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`presumption against extraterritorial application and establish a “sufficient nexus between
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`California and the misrepresentations.” Ehret, 68 F.Supp.3d at 1132. The UCL claim based on
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`Dodge’s purchase of the 2017 Elouan is thus dismissed with leave to amend.5
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`2. Safe Harbor
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`Copper Cane argues California’s safe harbor doctrine precludes Plaintiffs’ UCL, CLRA,
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`5 The same analysis applies to Plaintiffs’ CLRA and FAL claims. Accordingly, those claims are
`also dismissed with leave to amend to the extent they rely on Dodge’s purchase.
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`6
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`ORDER
`CASE NO. 20-cv-04068-RS
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`Northern District of California
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`United States District Court
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`

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`Case 3:20-cv-04068-RS Document 46 Filed 07/14/21 Page 7 of 14
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`and FAL claims because the labels at issue were previously approved by the TTB. “Safe harbor” is
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`a common law doctrine insulating defendants from civil liability when the “[l]egislature has
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`permitted [the challenged] conduct or considered a situation and concluded no action should lie.”
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`Cel-Tech Comms., Inc. v. Los Angeles Cellular Telephone Co., 20 Cal.4th 163, 182 (1999).
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`Though federal regulations “adopted in accordance with statutory authorization form the basis of
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`federal law,” Von Koenig v. Snapple Beverage Corp., 713 F.Supp.2d 1066, 1074 (E.D. Cal. 2010)
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`(citations omitted), courts disagree about whether a COLA issued by the TTB carries the force of
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`federal law to create a safe harbor.
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`On one hand, some courts have reasoned that because alcoholic beverage distributors must
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`obtain a COLA and the TTB has exclusive jurisdiction to regulate labels on alcoholic beverages,
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`approved labels must be permitted under federal law. See, e.g., Cruz v. Anheuser-Busch, LLC,
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`2015 WL 3561536, at *6 (C.D. Cal. June 3, 2015), aff’d on other grounds, 682 Fed.Appx. 583
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`(9th Cir. 2020). In coming to that conclusion, the Cruz court specifically held that the COLAs
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`were a formal rulemaking procedure. Id. at *5. It explained that under United States v. Mead, “[it]
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`is fair to assume that Congress contemplates administrative action with the effect of law when it
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`provides for a relatively formal administrative procedure tending to foster the fairness and
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`deliberation that should underlie a pronouncement of such force.” 533 U.S. 218, 230 (2001).
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`When the Secretary of the Treasury specifically delegated rulemaking authority to the TTB which,
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`in turn, promulgated regulations applicable to the labeling of alcoholic beverages, “[t]his
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`delegation render[ed] TTB’s regulations with the exclusive effect of federal law.” Id. at *6.
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`Pursuant to this line of reasoning, the issuance of a COLA provides a safe harbor. As stated above,
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`a number of courts around the country agree with this conclusion. See, e.g., O’Hara v. Diageo-
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`Guinness, USA, Inc., 306 F.Supp.3d 441, 465 (D. Mass. 2018) (“[T]he COLA has the force of law
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`required to give defendants’ conduct safe harbor[.]”); Pye v. Fifth Generation, Inc., 2015 WL
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`5634600, at *4 (N.D. Fla. Sept. 23, 2015).
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`On the other hand, courts which have closely analyzed Mead have concluded COLAs are
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`too “informal” to be considered regulations having the force of law. Hofmann v. Fifth Generation,
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`7
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`ORDER
`CASE NO. 20-cv-04068-RS
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`Northern District of California
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`United States District Court
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`

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`Case 3:20-cv-04068-RS Document 46 Filed 07/14/21 Page 8 of 14
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`Inc., 2015 WL 5440330, at *7 (S.D. Cal. March 18, 2015); Nowrouzi v. Maker’s Mark Distillery,
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`Inc., 2015 WL 4523551, at *5 (S.D. Cal. July 27, 2015) (endorsing the reasoning in Hofmann).
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`Compared to the “rigorous” approval process for prescription-drug labels, the TTB process
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`“hinges on self reporting” and reflects only the representations made to it by the distributor, not an
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`endorsement of those claims. Hofmann, 2015 WL 5440330, at *7; see also Singleton v. Fifth
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`Generation, Inc., 2016 WL 406295, at *8 (N.D.N.Y. Jan. 12, 2016) (“The COLAs filled out by
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`[the distributor] and certified by [the distributor] to be true and correct are simply marked
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`approved by the TTB.”) (emphasis added)). In Mead itself the agency decision at issue was not
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`entitled to Chevron deference, and therefore did not have the force of law, for a laundry list of
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`reasons revolving around the informality of the process afforded: (i) the agency did not engage in
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`notice-and-comment rulemaking prior to issuing decisions, (ii) the rulings were not binding on
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`third parties, (iii) the rulings were “conclusive” only between the agency and the defendant, and
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`(iv) the rulings were issued in such large quantities, 10,000 to 15,000 per year, that they could not
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`possibly have each enjoyed the attention and procedure characteristic of formal rulemaking. Mead,
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`533 U.S. at 233–234. In summary: Mead rejected the proposition that an administrative action
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`based on statutory and regulatory authority per se has the force of law. Shalikar v. Asahi Beer
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`U.S.A., Inc., 2017 WL 9362139, at *6 (C.D. Cal. Oct. 16, 2017).
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`Copper Cane urges reliance on Cruz and attempts to cast the cases that came out
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`differently as particularly focused on the absence of an individualized showing that the TTB
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`actually reviewed the statements on the challenged labels. Neither argument is persuasive. Cruz is
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`not persuasive for the reason articulated in Shalikar: Mead specifically disavowed the idea that by
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`simply delegating its authority to an agency, Congress was necessarily empowering that agency to
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`act with the force of law. See id.; see also Reid v. Johnson & Johnson, 780 F.3d 952, 964 (9th Cir.
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`2015) (“Creation of federal law should demand at least the same formality for purposes of
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`preemption as it does for purposes of Chevron deference.”). Similarly to the agency in Mead, the
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`TTB does not engage in notice-and-comment rulemaking before processing COLAs and it is
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`reasonable to assume the TTB issues many COLAs each year. Copper Cane offers no evidence to
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`8
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`ORDER
`CASE NO. 20-cv-04068-RS
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`Northern District of California
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`United States District Court
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`

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`Case 3:20-cv-04068-RS Document 46 Filed 07/14/21 Page 9 of 14
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`combat that assumption or to suggest that the COLAs bind parties other than the government and
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`the beverage distributor. In sum, Copper Cane has not proven that the process of obtaining a
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`COLA “fosters[s] the fairness and deliberation” characteristic of procedures entitled to the force of
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`law. See Mead, 533 U.S. at 230. The apparent informality of the TTB procedures indicate the
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`COLAs likely cannot provide safe harbor.
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`Copper Cane also errs in its assertion that courts refused to dismiss complaints because
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`they were unable to show the TTB actually reviewed the challenged labels. Rather, the distributors
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`could not demonstrate that claims in the labels had been scrupulously reviewed because facts to
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`that effect would not be properly before a court at the motion to dismiss stage. Even if it were
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`correct, however, Copper Cane offers no evidence that the TTB specifically reviewed for falsity its
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`particular labels. Its allegation that the TTB reviewed its labels three times and therefore must
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`have determined they were not misleading is unpersuasive.6 The quantity of reviews does not
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`guarantee the quality of review. More than once it avers that the words and phrases related to the
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`word “coast” were “expressly reviewed” or “specifically authorized,” by the TTB but then cites
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`only to the COLAs generally. Motion (“Mot.”) at 16. As in cases where other courts have not
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`accepted this argument, the record here “does not reflect whether the TTB investigated or ruled
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`upon the representations” made by the beverage distributor. Singleton, 2016 WL 406295, at *8;
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`Welk v. Beam Suntory Import Co., 124 F.Supp.3d 1039, 1042 (S.D. Cal. 2015 (“[T]he scope of the
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`TTB’s review isn’t properly before the Court at [the motion to dismiss] stage[.]”). It cannot be
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`determined this juncture that the TTB’s approval of the labels entitles Copper Cane to safe harbor
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`from Plaintiffs’ UCL, CLRA, and FAL claims.
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`3. Misrepresentation
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`Claims premised on a misleading label must meet the reasonable consumer standard,
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`meaning that Plaintiffs must show “members of the public are likely to be deceived.” Williams v.
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`6 Even if, as Copper Cane suggested at the hearing, the survival of the word “coastal” on the 2017
`label after numerous federal government reviews indicates the claim was scrutinized and
`approved, this type of argument is inappropriate for the motion to dismiss stage.
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`9
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`ORDER
`CASE NO. 20-cv-04068-RS
`
`Northern District of California
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`United States District Court
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`

`

`Case 3:20-cv-04068-RS Document 46 Filed 07/14/21 Page 10 of 14
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`Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008). The reasonable consumer standard also
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`requires “a probability that a significant portion of the general consuming public or of targeted
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`consumers, acting reasonably in the circumstances, could be misled.” Becerra v. Dr Pepper/Seven
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`Up, Inc., 945 F.3d 1225, 1228–1229 (internal quotation marks and citation omitted). However, the
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`reasonable consumer test is not satisfied where the challenged packaging “includes disclosures
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`that makes the meaning of the representation clear.” Dinan v. SanDisk LLC, 2020 WL 364277, at
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`*7 (N.D. Cal. Jan. 22, 2020). Still, courts recognize the reasonable consumer standard “raises
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`questions of fact that are appropriate for resolution on a motion to dismiss only in rare situations.”
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`Reid, 780 F.3d at 958 (internal alterations and quotation marks omitted).
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`First, Copper Cane argues Plaintiffs cannot state a claim for misrepresentation by omission
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`because the labels expressly state Elouan is bottled in California. Specifically, it contends any
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`allegation that it failed to disclose the “true quality and origin” of the wines must fail because the
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`labels disclose that the wines were finished in California. FAC ¶ 70. A nondisclosure claim must
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`be pled with particularity and both identify the content allegedly omitted and describe where that
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`information should have been revealed. Bird v. First Alert, Inc., 2014 WL 7248734, at *6 (N.D.
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`Cal. Dec. 19, 2014). The claim may be defeated if the necessary disclosures are included on the
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`packaging. Id. at *7.
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`It is clear from the face of the FAC that Plaintiffs seek more specific, “accurate”
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`information about Elouan’s origin. It would be unreasonable, at the pleading stage, to expect
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`Plaintiffs to articulate exactly the facts about Copper Cane’s manufacturing process that would
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`have cleared up their misunderstanding. Furthermore, whether the reference to California on the
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`back-left corner of the label would clarify a consumer’s misunderstanding is too close a call to
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`decide at this stage. Though the referenced two lines of text read: “VINTED & BOTTLED” above
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`and “NAPA, CA • CONTAINS SULFITES” immediately below, the word “in” notably does not
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`appear on the label to connect the vinification and bottling process to California. Whether the
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`graphic design of the two lines of text are sufficiently clear such that no reasonable consumer
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`would be deceived is thus a question of fact not properly resolved at this juncture.
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`10
`
`ORDER
`CASE NO. 20-cv-04068-RS
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:20-cv-04068-RS Document 46 Filed 07/14/21 Page 11 of 14
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`Second, Copper Cane contends Plaintiffs have failed to identify any actionable affirmative
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`misrepresentations. “[T]o be actionable as an affirmative misrepresentation, a statement must
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`make a specific and measurable claim, capable of being proved false or of being reasonably
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`interpreted as a statement of objective fact.” Welk, 124 F. Supp. 3d at 1043 (alteration in original).
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`According to Copper Cane, Plaintiffs’ objections to the labels’ claims about the wine’s production
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`in the Oregon AVAs and its coastal origins are unspecific and, more importantly, not misleading.7
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`In support of its argument, Copper Cane relies on Maeda v. Kennedy Endeavors, Inc., 407
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`F.Supp.3d 953 (D. Haw. 2019), in which a group of consumers alleged the use of the word
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`“Hawaiian” and stereotypically Hawaiian imagery on a bag of potato chips led them erroneously
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`to believe the chips were manufactured in Hawai’i. To conclude the representations could not
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`form the basis of a misrepresentation claim, the court reasoned that though “Hawaiian” is a
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`geographic term capable of leading consumers to believe a product was produced in Hawai’i, it
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`was not on its own likely to evoke confusion. Id. at 972. The court compared its facts to cases in
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`which a reasonable consumer could certainly have been be misled. See, e.g., Broomfield v. Craft
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`Brew Alliance, 2017 WL 3838453, at *1–2 (N.D. Cal. Sept. 1, 2017) (concluding it was
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`misleading for a beer brewed outside Hawai’i to include on its packaging a map of Hawai’i
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`marking the location of the brewing company, a statement inviting the consumer to visit the
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`brewery in Hawai’i, and a Hawaiian address); Marty v. Anheuser-Busch Cos., LLC, 43 F.Supp.3d
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`1333, 1340–42 (S.D. Fla. 2014) (finding the statements “Originated in Germany,” “German
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`Quality,” and “Brewed under the German Purity Law of 1516” together could mislead a consumer
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`into believing the beer was brewed in Germany). Comparatively, the use of the word “Hawaiian”
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`in Maeda without any “specific geographic indicia related to Hawaii,” was not misleading. Id.
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`Copper Cane extrapolates this finding to assert that “the geographic reference must be tied to an
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`actual assertion about the origin of the product to be actionable.” Mot. at 21.
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`7 As a result of the conclusion that Dodge lacks standing, arguments related to claims based on the
`2017 Elouan, and more specifically the AVAs, will not be discussed.
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`
`11
`
`ORDER
`CASE NO. 20-cv-04068-RS
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:20-cv-04068-RS Document 46 Filed 07/14/21 Page 12 of 14
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`Copper Cane argues that references to Oregon or its coast for the proposition that the wines
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`are produced solely in Oregon are not actionable because they are unspecific – they do not, for
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`example, invite a consumer to visit Copper Cane in Oregon or imply the winery is located there.
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`This argument ignores the widely understood fact that the location where a wine is produced has
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`special significance. See Kwikset Corp. v. Superior Court, 51 Cal.4th 310, 330 (2011) (noting, as
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`an example, that “to serious oenophiles, the difference between one year and the next, between
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`grapes from one valley and another nearby, might be sufficient to carry with it real economic
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`differences in how much they would pay”). Using Copper Cane’s own standard, then, a
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`geographic reference on a wine label is understood to be an assertion about the origin of the
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`product. As Plaintiffs contend in the FAC, consumers are often willing to pay a premium for
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`wines from specific regions. Labels invoking the rarity or quality of grapes from particular regions
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`therefore need not invite a consumer to visit to be misleading. Whether the language identifying
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`Napa, California on the back of the label would belie a reasonable consumer’s notion about the
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`wine’s origin is, as noted above, a question of fact not appropriate for resolution at this stage.
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`General references to “Oregon” or “Oregon’s coast” could thus potentially mislead a reasonable
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`consumer.
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`B. Unjust Enrichment and Breach of Warranty (Counts Four and Five)
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`To assert an unjust enrichment claim under California law, a plaintiff must allege that it
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`conferred an unjust benefit on the defendant through mistake, fraud, coercion, or request. Williams
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`v. Facebook, Inc., 384 F. Supp. 3d 1043, 1057 (N.D. Cal. 2018). To maintain a claim for breach of
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`express warranty, a plaintiff must allege: (1) the seller’s statements constitute an affirmation of
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`fact or promise, or a description of the goods; (2) the statement was part of the basis of the
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`bargain; and (3) the warranty was breached. In re Sony PS3 Other OS Litig., 2011 WL 672637, at
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`*2 (N.D. Cal. Feb. 17, 2011). As part of the first element, the plaintiff must set forth “the exact
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`terms of the warranty” allegedly breached. Williams v. Beechnut Nutrition Corp., 185 Cal.App.3d
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`135, 141–42 (Cal. App. 2d 1986).
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`Copper Cane contends these claims also must fail because, as it argued as to the UCL,
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`12
`
`ORDER
`CASE NO. 20-cv-04068-RS
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:20-cv-04068-RS Document 46 Filed 07/14/21 Page 13 of 14
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`
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`CLRA, and FAL claims, Plaintiffs have failed to identify an actionable misrepresentation as a
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`matter of law. As discussed above, however, the myriad general references to Oregon and its
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`coasts could lead a consumer to believe the wine originated in Oregon. It is unclear at this stage
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`whether the language placing the words “Vinted & Bottled” near the words “Napa, CA”
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`necessarily precludes any misunderstanding that the wine had purely Oregonian origins. Without
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`more, these claims may not be dismissed.
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`C. Injunctive Relief
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`A plaintiff seeking prospective injunctive relief in federal court must demonstrate both that
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`“he has suffered or is threatened with a concrete and particularized legal harm,” and that there is
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`“a sufficient likelihood that he