Judge Tosses Claim in Safeway Tuna Class Action Lawsuit

In a partial win for Safeway, and its long-time subsidiary Vons, a California federal judge tossed a claim in a consolidated class action lawsuit, ruling the second largest supermarket chain did not negligently misrepresent the amount of tuna in their cans.

Plaintiff Ehder Soto of California filed the class action complaint in November 2015 on behalf of a group of consumers who claim to have purchased Safeway-brand canned tuna that were allegedly underfilled and substantially underweight.

Bringing forth a total of nine causes of action against Safeway in an amended complaint filed in April 2016, Soto alleged that Safeway short-changed customers by deceptively marketing and selling cans of tuna that didn’t contain the full five ounces advertised on the label – a violation of federal regulations and California statutes.

However, Safeway presented arguments on two of those claims — for unjust enrichment and negligent misrepresentation should be dismissed.

In it’s motion to dismiss the two claims, Safeway argued there is no cause for action for unjust enrichment under California law and that the unjust enrichment claim is duplicative of Soto’s other claims and not a standalone cause of action in California.

Additionally, the supermarket chain sought to toss claims of negligent misrepresentation. Safeway asserted that the proposed Class is barred by the economic loss rule because they failed to demonstrate they suffered from any damages beyond economic loss.

On Wednesday, U.S. District Judge Edward Chen granted in part Safeway’s motion to dismiss, tossing the claim of negligent misrepresentation, but leaving the claim for unjust enrichment.

In his four-page ruling, Judge Chen found grounds for the plaintiffs’ unjust enrichment claims, citing a Ninth Circuit standard that although unjust enrichment is not a standalone cause of action in California, a court may construe the cause of action as a quasi-contract claim.

“Here, plaintiffs similarly allege that they purchased Safeway tuna based on defendants’ misrepresentations and that defendants have been unjustly enriched,” Judge Chen wrote. “This statement is sufficient to state a quasi-contract claim, a claim not expressly asserted in the complaint.”

But Judge Chen sided with Safeway regarding the claim of negligent misrepresentation because the plaintiffs failed to show they suffered personal or property injury.

In his original complaint, Soto alleged that recent testing by the National Oceanic and Atmospheric Administration found that a sample of five cans of Safeway-branded Chunk Light Tuna were underfilled and substantially underweight.

The cans were reportedly found to have contained an average of 2.29 ounces of tuna, 19.4 percent less than the federally mandated minimum standard fill of 2.84 ounces for the specific cans.

Tests of seven cans of Safeway Solid White Albacore Tuna in Water allegedly found similar issues: they contained an average of 2.83 ounces of pressed cake tuna, about 12.4 percent below federally mandated standards.

According to the lawsuit, a second round of tests by NOAA found the cans contained tuna between six percent and 10.6 percent below the standard fill.

“Safeway is cheating purchasers by providing less tuna than they are paying for,” the lawsuit states. “Safeway Tuna did not have the characteristics, ingredients, uses, benefits or quantities as promised.”

In January, Judge Chen consolidated Soto’s proposed class action lawsuit with another similar lawsuit filed by California resident, Heney Shihad. Since that time, three additional California residents have merged their complaints with the action.

The Consumers are represented by L. Timothy Fisher, Julia A. Luster and Scott A. Bursor of Bursor & Fisher PA; Rosemary M. Rivas and Quentin A. Roberts of Finkelstein Thompson LLP; Gordon M. Fauth Jr. and Ross Cornell of Litigation Law Group.

The Safeway Tuna Class Action Lawsuit is Soto v. Safeway Inc., Case No. 3:15-cv-05078, in U.S. District Court for the Northern District of California.