Susan Fitzpatrick v. Tyson Foods, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUSAN FITZPATRICK,
Plaintiff-Appellant,
v.
TYSON FOODS, INC.,
Defendant-Appellee.
No. 16-17038
D.C. No.
2:16-cv-00058-JAM-EFB
MEMORANDUM*
SUSAN FITZPATRICK, on behalf of
herself and all others similarly situated,
Plaintiff-Appellant,
v.
BIG HEART PET BRANDS,
Defendant-Appellee.
No. 17-15047
D.C. No.
2:16-cv-00063-JAM-AC
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted December 7, 2017
San Francisco, California
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
MAR 13 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Before: SCHROEDER and CHRISTEN**, Circuit Judges, and ELLIS,*** District
Judge.
In these consolidated appeals, Susan Fitzpatrick appeals the Rule 12(b)(6)
dismissals of her claims for violations of California’s Unfair Competition Law
(“UCL”), Cal. Bus. & Prof. Code § 17200 et seq., generally, and specifically
California’s Made in USA law, Cal. Bus. & Prof. Code § 17533.7, and California’s
Consumer Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1750 et seq.
The district court properly determined that the current version of California
Business and Professional Code § 17533.7 governs Fitzpatrick’s claims. Although
the statute does not apply retroactively, in amending § 17533.7, the California
legislature enacted a change in legislative policy, shifting from strict liability to
allow certain previously prohibited conduct under certain exceptions, amounting to
a statutory repeal. See Zipperer v. County of Santa Clara, 133 Cal. App. 4th 1013,
1023–24 (2005) (holding that “where the Legislature has conferred a remedy and
withdraws it by amendment or repeal of the remedial statute, the new statutory
scheme may be applied to pending actions without triggering retrospectivity
** This case was submitted to a panel that included Judge Kozinski, who
retired. Following Judge Kozinski’s retirement, Judge Christen was
drawn by lot to replace him. Ninth Circuit General Order 3.2.h. Judge Christen
has read the briefs, reviewed the record, and listened to oral argument.
*** The Honorable Sara Lee Ellis, United States District Judge for the
Northern District of Illinois, sitting by designation.

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concerns,” with courts to consider, among other factors, “whether the legislation
constitutes a substantial reversal of legislative policy that represents the adoption
of an entirely new philosophy vis-à-vis the prior enactment” (citations and internal
quotation marks omitted)); Brenton v. Metabolife Int’l, Inc., 116 Cal. App. 4th 679,
690 (2004) (statutory repeal rule applied where statute provided certain exceptions
to anti-SLAPP rule). Because Fitzpatrick had no vested rights in her claims before
the current version of § 17533.7 went into effect, her claims are governed by the
current version of that statute.
The district court also properly concluded that the California safe harbor
doctrine bars Fitzpatrick’s claims under California’s consumer protection statutes,
where the amended version of § 17533.7 expressly makes lawful the labeling of
products that contain certain amounts of foreign-sourced ingredients as “Made in
the USA.” See Ebner v. Fresh, Inc., 838 F.3d 958, 963 (9th Cir. 2016) (“[T]he
safe harbor doctrine . . . precludes plaintiffs from bringing claims based on ‘actions
the Legislature permits.’”) (quoting Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel.
Co., 973 P.2d 527, 542 (Cal. 1999)).
We additionally deny Appellees’ pending motion to strike [27].
AFFIRMED.

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