                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                      MAR 13 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

SUSAN FITZPATRICK,                              No.    16-17038

                 Plaintiff-Appellant,
                                                D.C. No.
 v.                                             2:16-cv-00058-JAM-EFB

TYSON FOODS, INC.,
                                                MEMORANDUM*
                 Defendant-Appellee.


SUSAN FITZPATRICK, on behalf of                 No.    17-15047
herself and all others similarly situated,
                                                D.C. No.
                 Plaintiff-Appellant,           2:16-cv-00063-JAM-AC

 v.

BIG HEART PET BRANDS,

                 Defendant-Appellee.

                    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.
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.

                                            2
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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