Case Information
*0 17/33 (9/18 HRG OFF) Present: The Honorable Philip S. Gutierrez, United States District Judge
Wendy Hernandez Not Reported Deputy Clerk Court Reporter Attorneys Present for Plaintiff(s): Attorneys Present for Defendant(s): Not Present Not Present Proceedings (In Chambers): Order GRANTING Defendant’s motion to dismiss and
DENYING Plaintiffs’ motion to remand
Before the Court are Defendant AdvoCare International, LP’s motion to dismiss, see Tubbs et al. v. AdvoCare International, LP et al. , CV 17-4454 PSG (AJWx), Dkt. # 17
(“ Defendant Mot. ”), and Plaintiffs Michael Tubbs, Ebony Baker, Stacy Porras, and Josh Hall’s
motion to remand, see Dkt. # 33 (“ Plaintiffs Mot. ”). The Court finds the matter appropriate for
decision without oral argument. See Fed. R. Civ. P. 78(b); L.R. 7-15. Having considered the
moving papers, the Court GRANTS Defendant’s motion to dismiss and DENIES Plaintiffs’
motion to remand.
I. Background
This action arises from illicit business practices allegedly perpetrated by Defendant AdvoCare International, LP (“Defendant”) with regards to its energy and weight-loss products,
which were purchased by Plaintiffs Michael Tubbs, Ebony Baker, Stacy Porras, and Josh Hall
(“Plaintiffs”).
Defendant produces, distributes, and markets a line of products under the “24-Day Challenge” banner, which is sold as “a comprehensive supplementation and nutrition program
designed to give your body the jumpstart it needs” and assist with “weight management, energy,
overall body composition [and] overall wellness.” See First Amended Complaint , Dkt. # 1-3, ¶ 1
(“ FAC ”). The 24-Day Challenge line includes AdvoCare Spark® (“Spark”), which is also
marketed as a stand-alone product. ¶ 2. Plaintiffs claim that Defendant has made various
assertions through mass advertising regarding the health benefits of Spark, including that it: is a
“unique multi-nutrient system that was developed as a nutritional source of energy and enhanced
mental focus”; “enhances mental energy and focus”; contains “more than 20 vitamins, minerals
and nutrients that work synergistically to provide a healthy, balanced and effective source of
energy that won’t overburden or over stimulate your body”; is a “source of long-lasting energy
and heightened mental focus and performance”; and contains “neuroactive amino acids that help
increase your mental focus and alertness by supporting your brain’s ability to receive and send
messages.” Id. ¶ 3. Plaintiffs assert that “[i]t in fact does none of this . . . and do[es] in fact
burden and over stimulate one’s body.” Id . Although Spark includes caffeine and taurine, an
ingredient alleged to provide extra stimulation, Plaintiffs contend that scientific research
“strongly questions taurine’s benefits.” Id. ¶ 23. Indeed, although Defendant’s website touts
that it “relies on the latest scientific knowledge and highest quality ingredients to create safe and
effective products,” Plaintiffs allege that “there is no genuine scientific research or scientifically
reliable studies in existence that support the extraordinary claims of Defendant[] that AdvoCare
branded products provide the benefits claimed,” and that Defendant “know[s] or should know
that said claims are untrue.” Id. ¶¶ 25-26, 39. Plaintiffs believe that Defendant has spent
“millions of dollars misleading consumers” about its products via a vast array of media. Id. ¶ 32,
34. Plaintiffs claim they were “lured into becoming consumers of AdvoCare products by its
marketing message” and that “they would not have purchased the [products], or would not have
paid a premium price for the products,” had they “been aware of the truth.” ¶ 36, 41.
Specifically, Plaintiff Tubbs spent “hundreds of dollars on the products” based on Defendant’s
glowing advertising, while Plaintiffs Baker and Porras spent $200 and $500, respectively. Id.
¶ 46. Each of these Plaintiffs, along with Plaintiff Hall, claim that none of Defendant’s
unsupported advertisements were true and that they did not experience the products’ guaranteed
benefits. Id .
Plaintiffs also allege that Defendant “fail[s] to honor [its] warranty obligations by providing a product that” is not fit for the purpose for which it is marketed and sold, is not
adequately packaged and labeled, does not include money-back guarantees or free trials, and
violates the warranties contained in California’s Uniform Commercial Code (“UCC”).
In their first amended class action complaint, Plaintiffs allege the following six causes of action:
First Cause of Action: Unlawful, unfair and fraudulent business practices in violation of California Business & Professions Code §§ 17200 et seq. FAC ¶¶ 47-59.
Second Cause of Action: Unfair, deceptive and misleading advertising in violation of California Business & Professions Code §§ 17500 et seq. FAC ¶¶ 60-72.
Third Cause of Action : Breach of implied warranty in violation of California UCC §§ 2314 and 2315 and common law. FAC ¶¶ 73-78.
Fourth Cause of Action: Breach of express warranty in violation of California UCC § 2313. FAC ¶¶ 79-85.
Fifth Cause of Action: Violation of the California Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code §§ 1750 et seq. FAC ¶¶ 86-93.
Sixth Cause of Action : Common law restitution for unjust enrichment. FAC ¶¶ 94-99. Plaintiffs filed their original complaint in Los Angeles County Superior Court on March 28, 2017, and Defendants acknowledged receipt of service on April 26. See Plaintiffs Mot. 2:19-
26. Plaintiffs filed their first amended complaint on May 5, which was transmitted to
Defendant’s counsel on May 11. 2:26-3:2. Defendant, noting that the amended complaint
did not identify an amount in controversy as required for federal jurisdiction under the Class
Action Fairness Act (“CAFA”), “conducted its own investigation to determine the Action’s
removability” and, after estimating that its potential CAFA liability could be as much as $30
million, filed its notice to remove the case to this Court on June 15. See Opposition to Plaintiffs’
Motion to Remand , Dkt. # 39, 4:18-5:2 (“ Defendant Opp. ”). In that notice, Defendant asserted
that this Court has CAFA jurisdiction over the action because the putative classes each consist of
tens of thousands of members; there is minimal diversity between Plaintiffs Tubbs, Portas, and
Hall (citizens of California) and Defendant (citizen of Delaware and Texas); and the amount in
controversy exceeds $5 million. See Notice of Removal , Dkt. # 1, ¶¶ 9-14 (“ NOR ”).
One week after removal, on June 22, Defendant filed its motion to dismiss, arguing that Plaintiff’s amended complaint contains various procedural and substantive defects, including the
fundamental flaw that Plaintiffs allege that Defendant’s marketing is unsubstantiated , not false ,
and “[w]ell-established authority holds that private plaintiffs are barred from alleging mere lack
of substantiation in advertising.” Defendant Mot. 1:5-9. Defendant also argues that Plaintiffs
fail to plead their fraud claims with particularity, lack Article III standing to seek injunctive
relief, and otherwise fail to plead claims upon which relief can be granted. See id. 1:14-2:3.
On July 17, Plaintiffs filed their motion to remand, claiming that Defendant “failed to remove this action within the time period permitted and thus a procedural defect requiring
remand exists.” Plaintiffs Mot. 2:2-4.
II. Legal Standard
Removal is proper where the federal courts have original jurisdiction over an action brought in state court. See 28 U.S.C. § 1441(a). A defendant must remove the case from state
court during one of two thirty-day time limits. 28 U.S.C. § 1446(b). The first thirty-day limit
requires the defendant to remove within thirty days after receiving a complaint that is removable
on its face. Id. § 1446(b)(1). Alternatively, if the complaint is not removable on its face, the
second thirty-day limit requires the defendant to remove within thirty days after receiving “an
amended pleading, motion, order or other paper from which it may first be ascertained that the
case is one which is or has been removable.” Id. § 1446(b)(3); Harris v. Bankers Life & Cas.
Co. , 425 F.3d 689, 692 (9th Cir. 2005). Courts strictly construe the removal statute against
removal jurisdiction. See, e.g. , Provincial Gov’t of Marinduque v. Placer Dome, Inc. , 582 F.3d
1083, 1087 (9th Cir. 2009); Luther v. Countrywide Home Loans Servicing, LP , 533 F.3d 1031,
1034 (9th Cir. 2008). “A defendant seeking removal has the burden to establish that removal is
proper and any doubt is resolved against removability.” Luther , 533 F.3d at 1034 (citation
omitted); see also Moore-Thomas v. Alaska Airlines, Inc. , 553 F.3d 1241, 1244 (9th Cir. 2009)
(“[A]ny doubt about the right of removal requires resolution in favor of remand.”). Although a
district court lacks the authority to remand a case sua sponte for procedural defects, Corona-
Contreras v. Gruel , 957 F.3d 1025, 1029 (9th Cir. 2017), and the Ninth Circuit has found that
the time limits for removal are procedural, not jurisdictional, Fristoe v. Reynolds Metals Co. , 615
F.2d 1209, 1212 (9th Cir. 1980), the court may remand upon a timely motion. See Smith v.
Mylan Inc. , 761 F.3d 1042, 1045 (9th Cir. 2014) (“Because procedural defects are waivable, a
district court lacks authority to remand based on the defendant’s violation of § 1446(b)’s . . .
time limitation absent a timely filed motion to remand.”).
To survive a motion to dismiss under Rule 12(b)(6), a complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570
(2007)). In assessing the adequacy of the complaint, the court must accept all pleaded facts as
true and construe them in the light most favorable to the plaintiff. See Turner v. City and Cty. of
San Francisco , 788 F.3d 1206, 1210 (9th Cir. 2015); Cousins v. Lockyer , 568 F.3d 1063, 1067
(9th Cir. 2009). The court then determines whether the complaint “allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal , 556 U.S. at
678.
III. Judicial Notice
“Generally, the scope of review on a motion to dismiss for failure to state a claim is limited to the contents of the complaint.” Marder v. Lopez , 450 F.3d 445, 448 (9th Cir. 2006);
accord Van Buskirk v. Cable News Network, Inc. , 284 F.3d 977, 980 (9th Cir. 2002)
(“Ordinarily, a court may look only at the face of the complaint to decide a motion to dismiss.”).
Courts may also, however, consider “attached exhibits, documents incorporated by reference,
and matters properly subject to judicial notice.” In re NVIDIA Corp. Sec. Litig. , 768 F.3d 1046,
1051 (9th Cir. 2014), cert. denied sub nom. Cohen v. Nvidia Corp. , 135 S. Ct. 2349 (2015).
Defendant has filed an unopposed request for judicial notice of three articles, see Dkt. # 18 (“ RJN ”), consisting of a piece from the academic journal Nutrition Reviews , see RJN Ex. 1;
an article on energy drinks published in The New York Times , see RJN Ex. 2; and a study
conducted by the European Food Safety Authority (“EFSA”), see RJN Ex. 3. The Court
concludes that it can take judicial notice of these three articles. Each is referenced in Plaintiffs’
amended complaint, see FAC ¶¶ 27-29, and on a 12(b)(6) motion, the Court may “consider
documents that are incorporated by reference but not physically attached to the complaint if they
are central to plaintiffs’ claim and no party questions their authenticity.” Viggiano v. Hansen
Natural Corp. , 944 F. Supp. 2d 877, 882 (C.D. Cal. 2013) (citing Marder , 450 F.3d at 448). The
three articles for which judicial notice is requested are central to Plaintiffs’ claims regarding
scientific support for Defendant’s advertising and, since Defendant’s request is unopposed, their
authenticity is not disputed.
Accordingly, the Court GRANTS Defendant’s request for judicial notice.
IV. Discussion
The Court will begin by considering Plaintiffs’ motion to remand, and will then address Defendant’s motion to dismiss.
A. Plaintiffs’ Motion to Remand
Plaintiffs base their motion to remand on a single argument: that Defendant “failed to remove this action within the time period permitted and thus a procedural defect requiring
remand exists.” Plaintiffs Mot. 2:2-4.
A notice of removal must be filed “within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading” or “within 30 days after receipt by
the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or
other paper from which it may first be ascertained that the case is one which is or has become
removable.” 28 U.S.C. §§ 1446(b)(1), (3). Plaintiffs argue that Defendant “[a]t the very latest[]
received the filing when it was served with the Initial Complaint on April 26, 2017.” Plaintiffs
Mot. 4:1-2. That original complaint set forth two putative classes: 1) “[a]ll individuals in
California who purchased the 24-Day Challenge products within four (4) years of filing this
lawsuit” and 2) “[a] sub Class of all individuals in California who purchased Spark within four
(4) years of filing this lawsuit.” Complaint , Dkt. # 1-1, ¶ 15 (“ Compl. ”). Based on these two
classes, and the various causes of actions claimed within, Plaintiffs conclude that “Defendant,
upon receipt and certainly upon service, of the Initial Complaint should have been aware of its
basis for removal under” CAFA. Plaintiffs Mot. 4:23-25. Federal jurisdiction under CAFA
exists when three elements are satisfied: “(1) there must be minimal diversity of citizenship
between the parties, (2) the proposed class must have at least 100 members and (3) the amount in
controversy must exceed[ ] the sum or value of $5,000,000.” Kuxhausen v. BMW Fin. Servs. NA
LLC , 707 F.3d 1136, 1139 (9th Cir. 2013). Plaintiffs argue that the face of this complaint made
clear that the class members exceeded 100, that minimal diversity exists, and that “it is apparent
that more than $5,000,000 is in controversy due to the size and scope of the class and amount in
controversy for each putative class member.” 5:5-16. Plaintiffs therefore conclude that more
than 30 days elapsed between Defendant’s receipt of the original complaint—and its ability to
ascertain CAFA jurisdiction—and its removal on June 15. See id. 5:16-20. In the alternative,
Plaintiffs argue that even if it was the amended complaint that first conferred CAFA jurisdiction,
Defendant’s counsel acknowledged receipt of that complaint on May 12, see id. 2:26-3:2—more
than 30 days prior to the eventual removal.
The Court disagrees with Plaintiffs’ argument. Although § 1446(b) identifies two thirty- day periods for removal—both of which start running when removability is ascertainable—the
Ninth Circuit has held that, because the “statute does not define ‘removable,” courts should “not
treat the concept as a strict dichotomy.” Kuxhausen , 707 F.3d at 1139. Notice of removability is
“determined through examination of the four corners of the applicable pleadings, not through
subjective knowledge or a duty to make further inquiry.” Harris , 425 F.3d at 694. Accordingly,
courts do not “charge defendants with notice of removability until they’ve received a paper that
gives them enough information to remove.” Durham v. Lockheed Martin Corp. , 445 F.3d 1247,
1251.
Consequently, because pleadings might be indeterminate on their faces, the two 30-day removal periods prescribed by § 1446(b) “are not the exclusive periods to remove; provided that
neither is triggered, a defendant may remove at any time based on the results of its own
investigations.” Ruano v. Sears Roebuck & Co. , No. CV 15-6060 PSG (FFMx), 2015 WL
6758130, at *1 (C.D. Cal. Nov. 5, 2015). Because “a defendant does not have a duty of inquiry
if the initial pleading or other document is ‘indeterminate’ with respect to removability,” then
“even if a defendant could have discovered grounds for removability through investigation, it
does not lose the right to remove because it did not conduct such an investigation and then file a
notice of removal within thirty days of receiving the indeterminate document.” Roth v. CHA
Hollywood Med. Ctr., L.P. , 720 F.3d 1121, 1125 (9th Cir. 2013).
The Court agrees with Defendant that both Plaintiffs’ initial complaint and amended complaint were indeterminate as to CAFA jurisdiction; specifically, because no amount in
controversy was pleaded. The faces of Plaintiffs’ two complaints reveal only that the putative
classes consist of “more than sixty [members] for each,” and that three Plaintiffs spent “hundreds
of dollars” on Defendant’s products. See Compl. ¶¶ 18, 20, 46; FAC ¶¶ 18, 20, 46. Defendant
observes that even had it assumed that each of the 120 putative class members spent $500
apiece—the highest amount referenced in the complaints—then “the amount in controversy
would only add up to approximately $60,000,” which is far below the CAFA requirement of $5
million. Defendant Opp. 9:26-10:1. The Court agrees that Defendant “could not calculate an
amount in controversy from the face of the pleadings,” 10:10-11; in such cases, courts have
routinely denied motions to remand premised on Plaintiffs’ argument here. See, e.g. , Roth , 720
F.3d at 1125 (reversing remand because amended complaint “did not reveal on its face that there
was diversity of citizenship or that there was sufficient amount in controversy to support
jurisdiction under CAFA”); Kuxhausen , 707 F.3d at 1141 (holding that a complaint “fell short of
triggering the removal clock under Section 1446(b)” because it “did not reveal that the amount
in controversy exceeded five million dollars”); Jakuttis v. Allstate Indem. Co. , No. EDCV 15-
0624 JGB (KKx), 2015 WL 3442083, at *3 (C.D. Cal. May 27, 2015) (denying motion to
remand when “the amount in controversy was not sufficiently clear from the face of the
Complaint”).
Because Plaintiffs’ complaints were indeterminate with regard to the CAFA amount in controversy, the Court concludes that the 30-day removal clock was not triggered. Defendant’s
investigation eventually revealed a $30 million amount in controversy, but the fact that this
insight came after 30 days is permissible and does not justify remand. See Roth , 720 F.3d at
1123 (“[A] defendant who has not lost the right to remove because of a failure to timely file a
notice of removal under § 1446(b)(1) or (b)(3) may remove to federal court when it discovers ,
based on its own investigation, that a case is removable.”) (emphasis added); Ruano , 2015 WL
6758130, at *1 (“[A] defendant may remove at any time based on the results of its own
investigations.”) (emphasis added).
Therefore, the Court DENIES Plaintiffs’ motion to remand.
B. Defendant’s Motion to Dismiss
In its motion to dismiss Plaintiffs’ amended complaint, Defendant relies principally on the argument that Plaintiffs only allege that Defendant’s marketing is unsubstantiated , not false , and
that “[w]ell-established authority holds that private plaintiffs are barred from alleging mere lack
of substantiation in advertising.” Defendant Mot. 1:5-9; see also id. 8:5-13:1. The Court agrees.
In California, it is “unlawful for any person doing business . . . to make any false or misleading advertising claim, including claims that (1) purport to be based on factual, objective,
or clinical evidence, (2) compare the product’s effectiveness or safety to that of other brands or
products, or (3) purport to be based on any fact.” Cal. Bus. & Prof. Code § 17508(a). However,
although the statute permits demands for substantiation in these cases, such requests can only be
made by a select set of authorities enumerated in the statute, including the California Director of
Consumer Affairs and various prosecutors. See id. § 17508(b); see also Stanley v. Bayer
Healthcare LLC , No. 11cv862-IEG(BLM), 2012 WL 1132920, at *3 (S.D. Cal. Apr. 3, 2012)
(“[O]nly prosecuting authorities may require an advertiser to substantiate its advertising
claims.”). Consequently, it is well-settled under California law that private litigants may not
bring claims pursuant to state consumer protection laws that are premised on alleged lack of
substantiation. See National Council Against Health Fraud, Inc. v. King Bio Pharm., Inc. , 107
Cal. App. 4th 1336, 1345 (2003) (“The Legislature has expressly permitted prosecuting
authorities, but not private plaintiffs, to require substantiation of advertising claims.”); Route v.
Mead Johnson Nutrition Co. , No. CV 12-7350-GW(JEMx), 2013 WL 658251, at *4 (C.D. Cal.
Feb. 21, 2013) (“Defendant is undoubtedly correct that Plaintiff may not base her claims on any
purported lack of substantiation.”); Stanley , 2012 WL 1132920, at *3. The California Court of
Appeal explained the rationale behind this legislative decision: “This limitation prevents undue
harassment of advertisers and is the least burdensome method of obtaining substantiation for
advertising claims. Moreover, a prosecuting authority is authorized to disseminate information to
consumers concerning unsubstantiated advertising claims.” King Bio , 107 Cal. App. 4th at 1345.
Earlier this year, the Ninth Circuit reaffirmed this basic principle in Kwan v. SanMedica Int’l , 854 F.3d 1088 (9th Cir. 2016), holding that “California law does not provide for a private
cause of action to enforce the substantiation requirements of California’s unfair competition and
consumer protection laws.” at 1091; see also Engel v. Novex Biotech, LLC , 689 F. App’x
510, 510 (9th Cir. 2017) (“Neither California’s Unfair Competition Law (‘the UCL’) nor its
Consumer Legal Remedies Act (‘the CLRA’) provides consumers with a private cause of action
to enforce the substantiation provisions of California’s unfair competition or consumer
protection laws.”). Kwan is particularly instructive here. In that case, the district court
dismissed the plaintiff’s first complaint, which alleged that the defendant’s products did not
provide their advertised benefits, on the ground that such claims were impermissible actions
based on lack of substantiation. Kwan , 854 F.3d at 1091. The district court instructed the
plaintiff that, to amend her complaint, she “must allege facts from which the [c]ourt can
conclude that Defendant’s advertising representations were false.” Id . It provided specific
guidance as to what those additional facts might be: “For example, Plaintiff could allege that one
or more of the authorities alluded to actually studied or tested the formula SeroVital contains and
found that it does not [deliver the promised result], or that Plaintiff herself did not experience
such [a result] when using the product, or that a study exists somewhere demonstrating that [the
result] is categorically impossible to achieve in an over-the-counter pill.” Id . The Kwan
plaintiff filed an amended complaint, but it did not satisfy her burden since it alleged only that
the defendant’s “representations are false” and that there “is no Credible Scientific Evidence to
Support Defendant’s . . . Representation.” Id. at 1092. The Ninth Circuit upheld the district
court’s dismissal of this amended complaint, determining that the additional allegations were
“conclusory and [did] nothing to support or prove the falsehood of the claims.” Id. at 1096. The
Court concluded that “[s]ince California law does not provide a private cause of action for
claims that advertising lacks substantiation, the failure to allege specific facts pointing to actual
falsehood constitutes a fatal flaw.” at 1096-97. [1]
Here, Plaintiffs’ amended complaint similarly offers no more than the sorts of vague allegations and conclusory statements that have been deemed insufficient by courts in similar
cases. For example, Plaintiffs allege that “scientific research strongly questions taurine’s
benefits,” and that while Defendant purportedly “relies on the latest scientific knowledge and
highest quality ingredients . . . . there is no genuine scientific research or scientifically reliable
studies in existence that support [Defendant’s] extraordinary claims.” FAC ¶¶ 23-25. The “no
genuine scientific research” claim is precisely the sort of allegation that the Ninth Circuit
recently rejected as being impermissibly premised on a lack-of-substantiation theory. See Engel ,
689 F. App’x at 510-11 (“[A]llegations that defendant’s marketing claims are not supported by
any reliable clinical trials and that a comprehensive search could not produce any publication to
support claims . . . do not support a finding that the advertising claims are actually false, only
that they lack substantiation.”).
Plaintiffs’ attempts to demonstrate the falsity of Defendant’s representations—a strategy that can be used to cure the lack-of-substantiation defect—are insufficient. They cite to the three
articles of which the Court has taken judicial notice, none of which provide any allegation that
Defendant’s 24-Day Challenge products are falsely advertised. The Nutrition Reviews piece
suggests that there is a “lack of evidence to substantiate claims that components of [energy
drinks], other than caffeine, contribute to the enhancement of physical or cognitive
performance.” RJN Ex. 1 at 730. However, not only does this article indicate only a lack of
substantiation and not outright falsity, it does not mention Defendant, Spark, or any other 24-
Day Challenge product. Courts have previously found a reliance on studies that did not involve
the products at issue to be insufficient in similar cases. See, e.g. , Eckler v. Wal-Mart Stores,
Inc. , No. 12-CV-727-LAB-MDD, 2012 WL 5382218, at *6-7 (S.D. Cal. Nov. 1, 2012)
(determining that studies that did not involve the product at issue do not lend “facial plausibility”
to claims that representations are false or misleading). Similarly, the New York Times article
suggests only that “proof is scant” regarding the efficacy of energy drinks without specifically
identifying either Defendant or its products. RJN Ex. 2 at 1. Lastly, the EFSA’s 2011 study
specifically examined the ingredient taurine—which, Plaintiffs allege, is included in Spark and
of questionable benefit. See FAC ¶ 23. However, that study concludes only that a “cause and
effect relationship has not been established between the consumption of taurine and” some of its
purported benefits. RJN Ex. 3 at 9-10. The study does not reference Defendant or its products
and does not conclude that its advertising of taurine’s benefits is false.
In sum, each of these articles suggests that some of Defendant’s representations might lack substantiation, but they contain no allegations regarding Defendant’s conduct or its
products, and certainly no indication that the representations upon which Plaintiffs reputedly
relied were false. Although “[a] claim can survive a lack of substantiation challenge by, for
example, alleging studies showing that a defendant’s statement is false,” these articles intimate
only lack of substantiation, not the requisite demonstration of falsity. Bronson v. Johnson &
Johnson, Inc. , No. C 12-04184 CRB, 2013 WL 1629191, at *8 (N.D. Cal. Apr. 16, 2013). This
Court joins others that have held that references to similar studies and articles do not create a
viable claim. See, e.g. , Otto v. Abbott Labs., Inc. , No. CV 12-1411-SVW(DTB), 2013 WL
12132046, at *6 (C.D. Cal. Mar. 15, 2013) (holding that inapposite and inconclusive studies “do
not give rise to a plausible claim” even when “accept[ing] well-pleaded allegations as true”).
However, Plaintiffs can demonstrate falsity in another way—specifically, through allegations of personal experience. Here, however, it is alleged only that “Plaintiff [Tubbs]
realized none of the alleged benefits” of Defendant’s products, and that Plaintiffs Baker, Porras,
and Hall “found that none of [Defendant’s] unsupported advertisements and claims were true.”
FAC ¶ 46. Even accepting these statements as true, which the Court is obliged to do on a
12(b)(6) motion, it finds that such vague, unspecific allegations do not state a plausible claim for
relief. Conclusory statements are insufficient at the pleading stage; a complaint must include
“enough facts to state a claim to relief that is plausible on its face.” Twombly , 550 U.S. at 570.
This is especially true in cases, like this one, where “it’s really only scientific testing that can
show a supplement’s claims to truly be false and/or misleading.” Eckler , 2012 WL 5382218, at
*3 n. 2. [2] Here, additional information regarding which products were consumed, when they
were purchased, which representations were allegedly misleading, and how and why the benefits
were unrealized might create a plausible inference that Defendant’s representations were indeed
false. As currently pleaded, however, the Court cannot conclude that these allegations, even if
true, entitle Plaintiffs to relief.
Plaintiffs argue that King Bio and subsequent lack-of-substantiation cases should not bar their amended complaint and that they have satisfied their pleading requirements. See
Opposition to Defendant’s Motion to Dismiss , Dkt. # 38, 14:18-17:18 (“ Plaintiffs Opp. ”).
However, the Court does not find the cases cited by Plaintiffs on this point to be persuasive.
Leaving aside the differences in procedural postures, the plaintiffs in those cases prevailed
because they combined personal anecdotes with relevant, persuasive scientific studies. See
Thesier-Hendricks v. TJL Enters., Inc. , No. CV 15-00477 JAK (SSx), 2015 WL 10791893, at
*5-6 (C.D. Cal. Aug. 3, 2015) (declining to dismiss complaint that combined “Plaintiff’s
personal experience” with “references to scientific studies” that demonstrate products’
ineffectiveness); Allen v. Similasan Corp. , 96 F. Supp. 3d 1063, 1073 (S.D. Cal. 2015)
(distinguishing King Bio where plaintiffs provided expert evidence of ineffectiveness); Melgar v.
Zicam LLC , No. 2:14-cv-00160-MCE-AC, 2016 WL 1267870, at *10 (E.D. Cal. Mar. 31, 2016)
(quoting Forcellati v. Hyland’s Inc. , No. CV 12-1983-GHK (MRWx), 2014 WL 1410264, at
*14 (C.D. Cal. Apr. 9, 2014)) (determining that plaintiff could “affirmatively prove Defendants’
products are no more effective than a placebo” using “testing, scientific literature, [and]
anecdotal evidence”). All of these cases are distinguishable from Plaintiffs’ amended complaint,
which contains neither relevant, logically related scientific studies nor anecdotal experience that
goes beyond vague, conclusory allegations.
Under California law, claims premised on false advertising, as Plaintiffs’ are, must be based on an allegation that a defendant’s representations were false, not merely unsubstantiated.
Here, Plaintiffs have failed to plead facts sufficient to demonstrate falsity, and therefore have not
stated a claim upon which relief can be granted. Accordingly, the Court GRANTS Defendant’s
motion to dismiss Plaintiffs’ first amended complaint.
Because the Court also grants Plaintiffs leave to amend, see below, it feels that some additional words of guidance are warranted. In opposing Defendant’s motion to dismiss,
Plaintiffs rely heavily on the legal standard articulated by this court in the 2008 case Amarkarian
v. City of Glendale , No. CV 08-980-PSG(E), 2008 U.S. Dist. LEXIS 95085 (C.D. Cal. Nov. 7,
2008). It was true then, and it is true now, that the Federal Rules of Civil Procedure require only
a “short and plain statement of the claim showing that the pleader is entitled to relief,” and that
“a judge must accept as true all of the factual allegations contained in the complaint.” at *7.
However, a word of caution: the Amarkarian decision preceded Iqbal , which elaborated that
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice,” nor does “a legal conclusion couched as a factual allegation.” Iqbal ,
556 U.S. at 678. Furthermore, Amarkarian concerned a pro se plaintiff, and so this Court was
motivated by the fact that “a pro se complaint, however inartfully pleaded, must be held to less
stringent standards.” Amarkarian , 2008 U.S. Dist. LEXIS 95085, at *8 (quoting Erickson v.
Pardus , 551 U.S. 89, 94 (2007)). Plaintiffs here are not pro se, and so any amended complaint
that might be filed from this point forward will be held to the pleading standards articulated in
Twombly , Iqbal , and their progeny.
In addition, because the Court is persuaded that Plaintiff’s first amended complaint is premised on an impermissible lack-of-substantiation theory and should be dismissed for that
reason, it will not consider Defendant’s alternate grounds for dismissal. However, the Court
nevertheless encourages Plaintiffs to take heed that the particularity requirement for fraud claims
mandated by Federal Rule of Civil Procedure 9(b), as well as Article III standing requirements
for injunctive relief, will also apply to future pleadings.
V. Leave to Amend
Plaintiffs request, at a minimum, that they be granted leave to file a second amended complaint. See Plaintiffs Opp. 22:14-22.
Whether to grant leave to amend rests in the sound discretion of the trial court. See Bonin
v. Calderon , 59 F.3d 815, 845 (9th Cir. 1995). The Court considers whether leave to amend
would cause undue delay or prejudice to the opposing party, and whether granting leave to
amend would be futile. See Sisseton-Wahpeton Sioux Tribe v. United States , 90 F.3d 351, 355
(9th Cir. 1996). Generally, dismissal without leave to amend is improper “unless it is clear that
the complaint could not be saved by any amendment.” Jackson v. Carey , 353 F.3d 750, 758 (9th
Cir. 2003).
The Court finds that Plaintiffs have failed to sufficiently plead their claims. Such insufficiencies might very well be cured through amendment, and the Court does not believe that
Defendant would be prejudiced if leave were granted at this time. The Court therefore GRANTS
Plaintiffs leave to amend.
VI. Conclusion
For the foregoing reasons, the Court GRANTS Defendant’s motion to dismiss and DENIES Plaintiffs’ motion to remand.
Because the Court also GRANTS leave to amend, Plaintiffs must file a second amended complaint by October 18, 2017.
IT IS SO ORDERED.
[1] Plaintiffs argue that, even if Kwan ’s holding is applicable here, then it should only apply to three of their causes of action because that case only raised claims under California’s Unfair Competition Law (“UCL”) and CLRA. See Opposition to Defendant’s Motion to Dismiss , Dkt. # 38, 13:1-9. However, courts have applied Kwan ’s holding to all causes of actions premised on a lack-of-substantiation theory, not only those claims raised in Kwan . See, e.g. , Moorer v. Stemgenex Med. Grp., Inc. , No. 3:16-cv-02816-AJB-NLS, 2017 WL 1281882, at *7-8 (S.D. Cal. Apr. 6, 2017) (dismissing UCL, CLRA, False Advertising Law, negligent misrepresentation, and fraud claims that were “deeply entrenched in a lack of substantiation theory”); Barrera v. Pharmavite, LLC , No. CV 11-04153 CAS, 2011 WL 13098477, at *2-3 (C.D. Cal. Sept. 19, 2011) (dismissing CLRA, UCL, and breach of express warranty claims because, “when considered as a whole as it must be for purposes of a 12(b)(6) motion, the complaint primarily alleges the claims on defendant’s labels lack substantiation”) (citation omitted). Furthermore, the Court agrees with Defendant that the policy rationale behind the ban on lack-of- substantiation claims “would be wholly undermined if a plaintiff could circumvent it by styling a claim as one for common law fraud instead of under the UCL, for example.” See Reply in Support of Defendant’s Motion to Dismiss , Dkt. # 40, 3:6-9.
[2] In Eckler , the court explained the central problem of a generalized allegation that a medicinal product does not work: Of course, how would she actually know that? The health and comfort of joints is probably influenced by a number of variables. Did Eckler keep all of them constant, adjust for ones that can’t be kept constant (like aging), and then somehow have her cartilage and joints examined? Did she keep precise records of how much Equate she took, why she took it, and just how long she took it for? Can she document what her physical condition was before she and after she took Equate? Probably not. What’s more likely is that she took Equate casually and just didn’t feel much better, but that makes her own claims just as speculative as she alleges Equate’s benefits are. Eckler , 2012 WL 5382218, at *3 n. 2.