SAN DIEGO (Legal Newsline) - The Mediterranean food restaurant chain Cava Grill waited too long to try to dismiss certain claims against it in a class action lawsuit over the alleged presence of chemicals in its bowls.
San Diego federal judge Michael Anello on Dec. 4 denied Cava's motion to dismiss claims for punitive damages, breach of implied warranty and unjust enrichment in a lawsuit over chemicals known as PFAS.
PFAS are found in firefighting foam and consumer products like non-stick cookware and have made their way into the bloodstreams of virtually every American. The case against Cava Grill is similar to others against chains like Burger King and McDonald's and alleges Cava misled consumers with promises to rid its packaging of PFAS.
Anello in February allowed the case to move past Cava's first motion to dismiss, leading the plaintiff's attorneys to file an amended complaint to address other issues in Anello's order.
Cava sought to dismiss the claims mentioned above from the new lawsuit, but Anello found that it should have raised those arguments in the first motion to dismiss.
"Here, the factual footing has not substantively changed between (complaints), both of which largely share the same factual material," Anello wrote.
"Indeed, the redline comparison submitted by Plaintiffs with their (second amended complaint) demonstrates very minimal alterations between (complaints), aside from the deletion of Plaintiffs' biocide and fraudulent omission claims that were dismissed in the Court's previous order.
"Therefore, because the allegations are not substantively different in the SAC, Defendant's arguments could have been raised in its previous motion to dismiss and the instant motion violates Rule 12 (g)(2)'s ban on successive Rule 12(b) motions."
PFAS lawsuits blame the chemicals for a variety of health problems, some of which were linked by a health study that was part of a settlement with DuPont. But others say the science on how PFAS affect the human body is incomplete.
Anello dismissed eight claims made in the Cava case in February but denied dismissal of four others, and Bursor & Fisher's SAC made those changes.
He gave the green light to claims for violations of California's Unfair Competition Law and Consumer Legal Remedies Act, as well as breach of implied warranty under the Song-Beverly Consumer Warranty Act and violation of California's False Advertising Law.
"Plaintiffs premise their claims on the theory that the marketing materials they relied on in purchasing Defendant's products are misleading because they fail to disclose that they contain organic fluorine, an indicator of PFAS, while claiming that the products are 'healthy' and 'sustainable,'" Anello wrote then.
"How reasonable consumers would interpret Defendant's representations in its marketing is a question of fact, and not a question that the court can resolve at this stage."