RIVERSIDE, Calif. (Legal Newsline) - A plaintiff who testified she is "usually hungover" when she orders McDonald's breakfast will get to try again with a lawsuit over the extra charge for orange juice in combo meals.
California federal judge Jesus Bernal granted part of McDonald's motion to dismiss on April 18 but allowed one claim to move forward. Nasim Shariatpanahi, other plaintiffs and their lawyer Cameron Nazemi of CWN can pursue an unjust enrichment theory against the fast-food giant.
Dismissed were claims under state consumer protection laws, as well as breach of contract and intentional and negligent misrepresentation. Nazemi can replead those claims in an amended complaint by April 29.
"Defendants argue that unjust enrichment 'applies only in the absence of an adequate remedy at law,'" Bernal wrote. "Here, however, the Court has dismissed Plaintiffs' other causes of action."
An affidavit from plaintiff Shariatpanahi lays out her disappointment with the fast food chain for not informing customers of up-charges on its products. She visits locations in Sherman Oaks and Encino about once a month for breakfast.
"I never really paid attention to the receipt, because more often than not I'm usually hungover when I order McDonald's and I expected the attendant to let me know about the additional charge, and I simply wanted to order food and leave - that's why they call it fast food," her affidavit says.
Shariatpanahi's hangover disclosure offered a new avenue for McDonald's to challenge the allegations.
"Plaintiff (Shariatpanahi's) subjective expectation would seem to require a restaurant's menu, receipt and verbal disclosures about the pricing of its meals (and related items) to be objectively clear and conspicuous and not purportedly misleading to someone who is inebriated, recovering from intense intoxication, or otherwise has their judgment and/or powers of observation potentially impaired or compromised," a Feb. 16 motion to dismiss says.
"The (complaint) cites no legal authority for such a proposition under the reasonable consumer test or otherwise."
Shariatpanahi says she's advised at lunchtime that lettuce on Big Macs costs extra - "McDonald's is probably the largest fast-food chain in the nation, and I am not okay with them trying to fenagle and cheat money from innocent people and the public."
The complaint says orange juice costs an extra $1.40 on breakfast combos. McDonald's says the order total is shown on the screen during ordering and the orange juice is the only itemized product that has a separate price listed.
Two other plaintiffs are named in the case, one of whom, Amber Meyers, says she's gone to McDonald's 3-4 times per month for the last year.
"Plaintiffs allege the only time the additional price for orange juice is identified is an 'upcharge' in writing is on the receipt, after payment is remitted," the motion to dismiss says.
"However, despite ordering breakfast meals with an orange juice from McDonald's franchises for several years, Plaintiff Meyers 'frankly never paid attention to the receipt.'"
The company later wrote: "Both Plaintiffs' concession that they do not review their receipts, as a matter of law, cannot shift the burden to Defendants to somehow compel customers to actually review their receipts."