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 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.


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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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8 NOTICE OF REMOVAL

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



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

American LegalNet, Inc. www.FormsWorkFlow.com

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.


EXHIBIT A


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EXHIBIT B


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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


SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN DIEGO


Plaintiff,

v.


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


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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


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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


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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


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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


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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


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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

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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

2


Exhibit B - Page 44


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NE LECAT21220043

Crystal Hilsley vs Ocean Spray Cranberries lnc

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[email protected].

San Diego County,

Superior Court ofCalifornia

Central

Crystal Hilsley vs

Ocean Spray

Cranberries lnc [E-File]

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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


EXHIBIT C


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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


SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN DIEGO


Plaintiff,

v.


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


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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


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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


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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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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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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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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.


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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Exhibit C - Page 55


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NE LECET21220115

Crystal Hilsley vs Ocean Spray Cranberries lnc

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[email protected].

San Diego County,

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Crystal Hilsley vs

Ocean Spray

Cranberries lnc [E-File]

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'11528453

11/16/2017 4:11 PM

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Adam Siegler

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37-20'l 7-00034868-

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Exhibit C - Page 56


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