Defendant Chipotle Mexican Grill Inc.?s Demurrer to Complaint
Defendant?s demurrers to the 1st, 2nd and 3rd causes of action are?sustained without leave to amend.
Plaintiff complains that when she asked for (and received) 3 tacos with a combination of meats (2 chicken and 1 steak), she was charged the price assigned to three tacos of the most expensive meat ($7.70 for the steak).? Plaintiff asserts that this practice was deceptive and fraudulent because Defendant?s ?app? (unlike its brick and mortar restaurant) offers the tacos individually and if she had purchased the tacos through the app, the price would have been 20 cents cheaper than it was when purchased by her at the restaurant,?e.g.?$7.50 for two chicken and one steak.??Complaint, ?? 8-10.
However, according to the allegations of the complaint, tacos at the restaurant were offered only as an order of three tacos using one type of meat,?e.g.?$7.70 for three steak tacos; $7.70 for three Barbacoa tacos; $7.15 for three Carnitas tacos; $7.15 for three Chorizo tacos; $6.70 for three chicken tacos; $6.70 for three Sofritas tacos and $6.70 for three veggie tacos.??Complaint, ? 7, including the photograph of the menu.??There is no in-restaurant menu option for individual tacos.
Plaintiff alleges that she ordered ?in-restaurant? and, as her complaint acknowledges, the restaurant pricing did not offer any mixed-meat options for three tacos.? Her order was, therefore, ?off menu? and the in-restaurant menu provided no information regarding such purchases and could not, therefore, have been deceptive.
Plaintiff?s allegations are based on the premise that the ?in-restaurant? and ?in-app? menus are interchangeable.? They are not.? There are numerous differences, some of which benefit a consumer ordering ?in-restaurant?.? For example, if Plaintiff had ordered one chicken and two steak tacos in-app, she would have paid?$7.80?ten cents more than the in-restaurant price.? If she had ordered three steak-tacos in-app, the price would have been $8.10?40 cents more than the in-restaurant price.
Plaintiff?s current allegations compare apples and oranges and assert that there is some deception because they are not the same.? Such allegations are insufficient to state any of the three causes of action asserted in Plaintiff?s complaint.
?Plaintiff?s attorney apparently acknowledged at the meet and confer conference that he could not identify additional facts that plaintiff could allege to avoid the need for a hearing on the demurrer. (Henry Dec. ? 2.)? Also, it is plaintiff?s burden to show how she might amend to cure the deficiencies and yet plaintiff merely requested leave to amend but did not offer a single amendment which could conceivably cure the defects in her complaint. (Opp., 15:3-4.).
The Court?sustains?the demurrer?without leave to amend
Defendant to give notice.