1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA
7 JANICE COOPER, Case No. 20-cv-02455-PJH 8 Plaintiff,
9 v. ORDER GRANTING IN PART AND DENYING IN PART MOTION TO 10 CURALLUX LLC, DISMISS AND DENYING MOTION TO STRIKE 11 Defendant. Re: Dkt. Nos. 30, 31 12
13 14 Before the court is defendant Curallux LLC’s (“Curallux” or “defendant”) motion to 15 dismiss and motion to strike. The matter is fully briefed and suitable for decision without 16 oral argument. Having read the parties’ papers and carefully considered their arguments 17 and the relevant legal authority, and good cause appearing, the court hereby rules as 18 follows. 19 BACKGROUND 20 Plaintiff Janice Cooper (“plaintiff”) filed this putative class action against defendant 21 on April 10, 2020 asserting claims for (1) violation of the California Consumer Legal 22 Remedies Act (“CLRA”), Cal. Civ. Code § 1750 et seq.; (2) violation of the California 23 False Advertising Law (“FAL”), Bus. & Prof. Code § 17500 et seq.; (3) violation of the 24 California Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq.; 25 (4) breach of express warranty; and (5) unjust enrichment. Dkt. 1. After defendant filed a 26 prior motion to dismiss, plaintiff filed the operative First Amended Complaint (“FAC”), 27 which asserts the same five claims as the complaint. Dkt. 22. 1 Miami, Florida. Id. ¶ 8. Defendant manufactures and distributes a series of hair regrowth 2 products including CapillusUltra, CapillusPlus, Capillus X+, and Capillus Pro (collectively 3 the “products”), which are baseball-style hats with lasers in them. Id. ¶¶ 1–2. These 4 lasers provide low level light treatment to the scalp, which defendant claims stimulates 5 and energizes cells with hair follicles. Id. ¶ 2. In March 2018, plaintiff purchased one of 6 the products and alleges that she relied upon advertising and marketing of the products 7 as being “without side effects” and “physician recommended.” Id. ¶ 7. These advertising 8 claims appeared in television commercials, on the products’ packaging and label, and on 9 defendant’s website. Id. ¶ 27. Plaintiff developed several side effects after using the 10 product including itchy scalp, dry scalp, dandruff, headaches, and dizziness. Id. ¶ 7. 11 According to the FAC, scientific studies and experts in the field of hair restoration 12 state that there are several side effects associated with the use of low level laser therapy 13 for hair loss. Id. ¶ 22. Plaintiff also alleges that defendant relied on eight physicians to 14 endorse the products and further alleges that these physicians have a financial incentive 15 to make the purported recommendations. Id. ¶ 29. Plaintiff alleges that a reasonable 16 consumer would interpret “physician recommended” to mean a physician without financial 17 incentive to recommend the product. Id. ¶ 30. 18 Thus, plaintiff alleges that the statements “without side effects” and “physician 19 recommended”1 are false, deceptive, and misleading in violation of the CLRA, FAL, and 20 UAL. Further, plaintiff seeks to certify a class of “[a]ll persons who purchased the 21 Products in the United States or, alternatively, in California, for personal consumption and 22 not for resale during the time period of four years prior to the filing of the complaint 23 through the present.” Id. ¶ 43. 24 / / / 25 / / / 26 1 Plaintiff also alleges that defendant advertised that “Capillus is the preferred laser 27 therapy brand of leading hair restoration surgeons.” FAC ¶ 27. Other than the single 1 DISCUSSION 2 A. Legal Standard 3 1. Rule 12(b)(6) 4 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the 5 legal sufficiency of the claims alleged in the complaint. Ileto v. Glock, 349 F.3d 1191, 6 1199–1200 (9th Cir. 2003). Under Federal Rule of Civil Procedure 8, which requires that 7 a complaint include a “short and plain statement of the claim showing that the pleader is 8 entitled to relief,” Fed. R. Civ. P. 8(a)(2), a complaint may be dismissed under Rule 9 12(b)(6) if the plaintiff fails to state a cognizable legal theory, or has not alleged sufficient 10 facts to support a cognizable legal theory. Somers v. Apple, Inc., 729 F.3d 953, 959 (9th 11 Cir. 2013). 12 While the court is to accept as true all the factual allegations in the complaint, 13 legally conclusory statements, not supported by actual factual allegations, need not be 14 accepted. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). The complaint must proffer 15 sufficient facts to state a claim for relief that is plausible on its face. Bell Atl. Corp. v. 16 Twombly, 550 U.S. 544, 555, 558–59 (2007) (citations and quotations omitted). 17 A claim has facial plausibility when the plaintiff pleads factual content that allows 18 the court to draw the reasonable inference that the defendant is liable for the misconduct 19 alleged.” Iqbal, 556 U.S. at 678 (citation omitted). “[W]here the well-pleaded facts do not 20 permit the court to infer more than the mere possibility of misconduct, the complaint has 21 alleged—but it has not ‘show[n]’—that the pleader is entitled to relief.’” Id. at 679. Where 22 dismissal is warranted, it is generally without prejudice, unless it is clear the complaint 23 cannot be saved by any amendment. Sparling v. Daou, 411 F.3d 1006, 1013 (9th Cir. 24 2005). 25 Because plaintiff’s claims sound in fraud, their complaint must also meet the 26 heightened pleading standard of Federal Rule of Civil Procedure 9(b). See Kearns v. 27 Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009). Rule 9(b) requires a party alleging 1 To satisfy this standard, the “complaint must identify the who, what, when, where, and 2 how of the misconduct charged, as well as what is false or misleading about the 3 purportedly fraudulent statement, and why it is false.” Salameh v. Tarsadia Hotel, 726 4 F.3d 1124, 1133 (9th Cir. 2013) (citation and internal quotation marks omitted). 5 Review is generally limited to the contents of the complaint, although the court can 6 also consider a document on which the complaint relies if the document is central to the 7 claims asserted in the complaint, and no party questions the authenticity of the 8 document. See Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007). The court may 9 consider matters that are properly the subject of judicial notice, Knievel v. ESPN, 393 10 F.3d 1068, 1076 (9th Cir. 2005); Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th 11 Cir. 2001), and may also consider exhibits attached to the complaint, see Hal Roach 12 Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989), and 13 documents referenced extensively in the complaint and documents that form the basis of 14 a the plaintiff’s claims. See No. 84 Emp’r-Teamster Jt. Counsel Pension Tr. Fund v. Am. 15 W. Holding Corp., 320 F.3d 920, 925 n.2 (9th Cir. 2003). 16 2. Rule 12(f) 17 Federal Rule of Civil Procedure 12(f) provides that the court “may order stricken 18 from any pleading any insufficient defense or any redundant, immaterial, impertinent, or 19 scandalous matter.” Fed. R. Civ. P. 12(f). “The function of a [Rule] 12(f) motion to strike 20 is to avoid the expenditure of time and money that must arise from litigating spurious 21 issues by dispensing with those issues prior to trial.” Whittlestone, Inc. v. Handi-Craft 22 Co., 618 F.3d 970, 973 (9th Cir. 2010) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 23 1527 (9th Cir. 1993), rev’d on other grounds, 510 U.S. 517 (1994)). 24 Motions to strike are not favored and “should not be granted unless it is clear that 25 the matter to be stricken could have no possible bearing on the subject matter of the 26 litigation.” Colaprico v. Sun Microsystem, Inc., 758 F. Supp. 1335, 1339 (N.D. Cal. 1991) 27 (citing Naton v. Bank of Cal., 72 F.R.D. 550, 551 n.4 (N.D. Cal. 1976)). When a court 1 pleading party.” Uniloc v. Apple, Inc., No. 18-CV-00364-PJH, 2018 WL 1640267 (N.D. 2 Cal. Apr. 5, 2018) (quoting In re 2TheMart.com, Inc., Sec. Litig., 114 F. Supp. 2d 955, 3 965 (C.D. Cal. 2000)). A court must deny the motion to strike if there is any doubt 4 whether the allegations in the pleadings might be at issue in the action. In re 5 2theMart.com, 114 F. Supp. 2d at 965 (citing Fantasy, Inc., 984 F.2d at 1527). 6 B. Analysis 7 1. First Through Third Claims—False Advertising 8 Plaintiff brings three claims using three different California statutes: the UCL, FAL, 9 and CLRA. The UCL prohibits any “unlawful, unfair or fraudulent business act or 10 practice.” Cal. Bus. & Prof. Code § 17200. “The false advertising law prohibits any unfair, 11 deceptive, untrue, or misleading advertising.” Williams v. Gerber Prod. Co., 552 F.3d 12 934, 938 (9th Cir. 2008) (citing Cal. Bus. & Prof. Code § 17500) (internal quotation marks 13 omitted). The CLRA prohibits “unfair methods of competition and unfair or deceptive acts 14 or practices.” Cal. Civ. Code § 1770. 15 The Ninth Circuit has explained that “these [three] California statutes are governed 16 by the ‘reasonable consumer’ test.” Williams, 552 F.3d at 938 (quoting Freeman v. Time, 17 Inc., 68 F.3d 285, 289 (9th Cir. 1995)); accord Consumer Advocates v. Echostar Satellite 18 Corp., 113 Cal. App. 4th 1351, 1360 (Ct. App. 2003). “Under the reasonable consumer 19 standard, [plaintiff] must show that members of the public are likely to be deceived.” 20 Williams, 552 F.3d at 938. “The California Supreme Court has recognized that these 21 laws prohibit not only advertising which is false, but also advertising which[,] although 22 true, is either actually misleading or which has a capacity, likelihood or tendency to 23 deceive or confuse the public.” Id. (internal quotation marks omitted) (quoting Kasky v. 24 Nike, Inc., 27 Cal. 4th 939, 951 (2002)). The reasonable consumer test requires more 25 than a mere possibility that defendant’s product “might conceivably be misunderstood by 26 some few consumers viewing it in an unreasonable manner.” Lavie v. Procter & Gamble 27 Co., 105 Cal. App. 4th 496, 508 (Ct. App. 2003). Rather, the test requires a probability 1 acting reasonably in the circumstances, could be misled.” Id. 2 Generally, “whether a reasonable consumer would be deceived . . . [is] a question 3 of fact not amenable to determination on a motion to dismiss.” Ham v. Hain Celestial 4 Grp., Inc., 70 F. Supp. 3d 1188, 1193 (N.D. Cal. 2014); see Reid v. Johnson & Johnson, 5 780 F.3d 952, 958 (9th Cir. 2015). “However, in rare situations a court may determine, 6 as a matter of law, that the alleged violations of the UCL, FAL, and CLRA are simply not 7 plausible.” Ham, 70 F. Supp. 3d at 1193. 8 Plaintiff alleges two statements, made by defendant, are false or misleading. First, 9 that Curallux’s products offer hair growth “without side effects” (FAC ¶ 20), and second, 10 that the products are “physician recommended.” Id. ¶ 27. Defendant moves to dismiss 11 plaintiff’s three false advertising claims because it characterizes these statements as 12 substantiation claims—that is, the claim lacks substantiation—rather than false 13 advertising claims. Mtn. at 5. 14 A substantiation claim involves an advertising claim “that has no evidentiary 15 support one way or the other.” Eckler v. Wal-Mart Stores, Inc., No. 12-cv-727-LAB-MDD, 16 2012 WL 5382218, at *3 (S.D. Cal. Nov. 1, 2012). In contrast, a false advertising claim is 17 one in which the claim has “actually been disproved,” id., such that “the plaintiff can point 18 to evidence that directly conflicts with the claim.” Kwan v. SanMedica Int’l, LLC, No. 14- 19 cv-3287-MEJ, 2015 WL 848868, at *4 (N.D. Cal. Feb. 25, 2015). The difference between 20 a substantiation claim and a false advertising claim is important because private 21 individuals may not bring a substantiation claim under the UCL or CLRA. Kwan, 2015 22 WL 848868, at *4. Instead, only “the Director of Consumer Affairs, the Attorney General, 23 any city attorney, or any district attorney” may bring a substantiation claim.2 Cal. Bus. & 24 2 Defendant argues that substantiation claims rest exclusively with the Federal Trade 25 Commission (“FTC”). Mtn. at 5. The authorities cited by defendant do not support this proposition. While “private litigants may not invoke the jurisdiction of the federal district 26 courts by alleging that defendants engaged in business practices proscribed by [15 U.S.C. § 45(a)(1),” Driesbach v. Murphy, 658 F.2d 720, 730 (9th Cir. 1981), plaintiff does 27 not cite a violation of the Federal Trade Commission Act as a cause of action. At this 1 Prof. Code § 17508; see also Nat’l Council Against Health Fraud, Inc. v. King Bio Pharm., 2 Inc., 107 Cal. App. 4th 1336, 1345 (Ct. App. 2003) (“The Legislature has expressly 3 permitted prosecuting authorities, but not private plaintiffs, to require substantiation of 4 advertising claims.”). The relevant question, therefore, is whether plaintiff’s allegations 5 are substantiation claims or false advertising claims. 6 a. “Without Side Effects” 7 Plaintiff claims that defendant advertises that its products regrow hair “without side 8 effects” when, in fact, the products caused side effects that are not disclosed to 9 consumers. FAC ¶¶ 20–21. Plaintiff alleges that “[s]cientific studies and experts in the 10 field of hair restoration confirm there are several side effects associated with use of low 11 level laser therapy for hair loss, including, but not limited to: temporary hair shedding, 12 scalp pruritus, itchy scalp, dry scalp, dandruff, headaches, light headedness, dizziness, 13 nausea, and stimulation of existing cancer cells.” Id. ¶ 22. In support of this allegation, 14 plaintiff cites a study published in the medical journal Lasers in Medical Science (“LIMS”). 15 Id. at 8 n.10. 16 Defendant contends that this allegation should be characterized as a 17 substantiation claim because plaintiff is alleging that defendant cannot substantiate the 18 safety of its product. Mtn. at 9. Defendant acknowledges that the LIMS study is the only 19 allegation that goes to whether the advertising claims are false, rather than 20 unsubstantiated, but would distinguish the study on several grounds. Along the same 21 lines, plaintiff argues that where a plaintiff points to studies and expert testimony to show 22 falsity, courts reject substantiation arguments. Opp. at 6. 23 In Eckler v. Wal-Mart Stores, Inc., 2012 WL 5382218, at *3, the district court 24 discussed the difference between claims that are completely unsubstantiated and those 25 that “have been disproved by the scientific community.” The court reasoned
26 [t]here is a difference, intuitively, between a claim that has no evidentiary support one way or the other and a claim that’s 27 actually been disproved. In common usage, we might say that and “unsubstantiated” claim is only the former. 1 2 Id. With that framing in mind, it is clear that plaintiff’s allegations that defendant falsely 3 advertises the products offer hair growth “without side effects,” is not a substantiation 4 claim. By alleging, “[s]cientific studies and experts in the field of hair restoration confirm 5 there are several side effects associated with use of low level laser therapy for hair loss,” 6 (FAC ¶ 22), plaintiff is contending that defendant’s advertising claim has been disproved 7 by the scientific community. The dispositive inquiry is whether plaintiff has alleged 8 sufficient factual material to plausibly state a claim. To resolve that question, the court 9 turns to the LIMS study,3 which plaintiff offers as scientific evidence and defendant 10 argues is distinguishable. 11 First, defendant argues the study does not actually discuss its product. Mtn. at 10. 12 Defendant reads the study too narrowly. For example, the abstract of the article states: 13 “Low-level laser/light therapy (LLLT) has been increasingly used for promoting hair 14 growth in androgenetic alopecia (AGA). Our institute developed a new home-use LLLT 15 device, RAMACAP, with optimal penetrating energy, aiming to improve therapeutic 16 efficacy and compliance.” Mtn., Ex. 1 at 1107.4 Plaintiff alleges that defendant sells 17 “laser caps [that] provide low level light treatment to the scalp, which Defendant claims 18 stimulates and energizes the cells within the hair follicles, thus producing hair growth.” 19 FAC ¶ 2. The technology (low level light treatment/therapy) and the goal (hair growth) is 20 the same in both the study and defendant’s products. 21 Second, defendant asserts the article does not support the side effects alleged in 22 the FAC because the words “itchy scalp,” “dry scalp,” “dandruff,” “headaches,” 23 “lightheadedness,” “dizziness,” “nausea,” and “cancer” do not appear in the study. Mtn. 24
25 3 Defendant attaches the study in question to its motion. See Mtn., Ex. 1. The court can consider a document on which the complaint relies if the document is central to the 26 claims asserted in the complaint, and no party questions the authenticity of the document. Sanders, 504 F.3d at 910. The study was cited and referenced in the FAC 27 and plaintiff does not object to the document, so the court may properly consider the 1 at 10. The study’s abstract states “[r]eported side effects included temporary hair 2 shedding and scalp pruritus.” Id., Ex. 1 at 1107. Later the study explains in greater 3 depth, “There was no serious adverse event reported in any subject. One female subject 4 in the laser group complained of increased hair shedding, which occurred at 2 weeks 5 after starting treatment and spontaneously resolved within 6 weeks. Mild scalp itching 6 was described in two laser-treated subjects and one sham-treated subject without the 7 need for treatment.” Id., Ex. 1 at 1110–11. The court agrees with defendant that many of 8 plaintiff’s alleged side effects are not discussed in the study; however, the study 9 specifically references itchy scalp and scalp pruritus, which is the medical term for itchy 10 scalp. Thus, contrary to defendant’s argument, one of the side effects alleged by plaintiff 11 appears in the study. 12 Third, defendant argues the study was conducted using a helmet (whereas 13 defendant’s product is a hat) and some of the side effects may been caused by the 14 helmet. Id. at 11. Indeed, the study’s authors theorized that “[w]earing a helmet might 15 create a warmer environment and higher humidity on the scalp, possibly leading to 16 itchiness.” Id., Ex. 1 at 1113. Additionally, the itchy scalp side effect occurred in both the 17 laser group and the control group. Id. These facts could indicate that the itchy scalp side 18 effect was not caused by the low level laser therapy but by the helmet used in the study. 19 Whether plaintiff’s allegations plausibly state a claim is a close question. On the 20 one hand, plaintiff relies on only one study in which the authors hypothesize that the one 21 side effect described in the study and alleged by plaintiff, i.e., itchy scalp, may have been 22 caused by wearing a helmet. On the other hand, the study does not conclusively rule out 23 the cause of the itchy scalp and plaintiff alleges that defendant advertises that its 24 products offer hair growth “without side effects.” At the pleading stage, a plaintiff need 25 only allege factual matter to allow the court to infer that she could state a claim. The 26 court cannot say that plaintiff fails, as a matter of law, to state a claim based on this 27 statement. 1 b. “Physician Recommended” 2 Plaintiff also alleges that defendant falsely, deceptively, and misleadingly 3 advertises its products are physician recommended, those physicians have a financial 4 incentive to make the recommendation, and a reasonable consumer would interpret 5 “physician recommended” to mean the physician does not have a financial incentive. 6 FAC ¶¶ 27–30. Defendant asserts that plaintiff’s false advertising claim that the products 7 are “physician recommended” is, in fact, a substantiation claim. Mtn. at 6. According to 8 defendant, plaintiff alleges that Capillus cannot substantiate the claim that physicians 9 actually recommend the product because the company’s survey of physicians are all 10 biased because they are paid by Capillus. Id. Plaintiff does not respond directly to this 11 argument, instead arguing that defendant’s representations are actually untrue or 12 misleading. Opp. at 5. 13 The court is not persuaded this is a substantiation claim. Plaintiff is not alleging 14 that the products lack competent clinical evidence. Rather, she alleges that there was 15 clinical evidence (i.e., physicians recommend the product) but defendant failed to 16 disclose a potential source of bias (that the physicians were compensated for their 17 statements). A case from the Northern District of Illinois, cited by defendant, is 18 illustrative. There, the plaintiff alleged a defendant’s claims regarding wrinkle-repair claim 19 were false because there was “no competent clinical evidence” to support the claims. 20 Greifenstein v. Estee Lauder Corp., No. 12-cv-9235, 2013 WL 3874073, at *4 (N.D. Ill. 21 July 26, 2013). The court characterized this claim as a substantiation claim and then 22 pointed out that, in spite of the allegation of no competent clinical evidence, the 23 “complaint itself allege[d] that substantiation exists for [defendant’s] claims that the serum 24 is ‘clinically proven’ to reduce wrinkles.” Id. The court cited a portion of the complaint 25 that alleged the defendant collaborated with a university to test the wrinkle serum and 26 then reasoned the plaintiff “may quarrel that [the defendant] failed to disclose the study’s 27 methodology and that [the defendant] itself funded the study, but the mere existence of 1 substantiation.” Id. (citation omitted). 2 The Greifenstein court distinguished between substantiation claims and a claim 3 that the defendant failed to disclose a study’s methodology or funding. In this case, 4 plaintiff’s claim is more similar to a failure to disclose the study’s methodology or funding 5 than to a failure to substantiate a claim. In other words, plaintiff’s claim goes to the bias 6 of the physicians and not that defendant’s advertising was without support or 7 substantiation. 8 In its reply, defendant cites In re Epogen & Aranesp Off-Label Marketing & Sales 9 Practices Litigation, 590 F. Supp. 2d 1282 (C.D. Cal. 2008), for the proposition that 10 plaintiff cannot transform her allegation regarding “physician recommended” into an 11 affirmative misrepresentation. Reply at 3. Defendant reasons that what is actually 12 alleged by such a statement is that there is no basis to make the statement because the 13 physicians are biased. Id. 14 In re Epogen does not support defendant’s proposition. In that case, the 15 defendant issued a number of press releases “touting the positive results of clinical 16 studies on the off-label use of Aranesp. Many of these press releases did not reveal that 17 the studies were not conducted by independent researchers and instead were funded by 18 [the defendant].” In re Epogen, 590 F. Supp. 2d at 1285. The court recognized that “to 19 the extent that Plaintiffs have alleged that Defendants made statements that were 20 fraudulent (i.e., literally false, misleading, or omitted material facts), their claims are 21 actionable.” Id. at 1291 (citation omitted). However, the court dismissed all claims 22 because the plaintiffs’ allegations of fraud were “so intertwined with allegations that 23 Defendants engaged in illegal off-label promotion” and off-label promotion claims were 24 preempted by the Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. § 301 et seq. Id. at 25 1292. 26 In re Epogen is relevant in a few aspects. First, the court recognized that a claim 27 alleging that a defendant’s statements are false and not preempted by the FDCA is 1 stemming from the fact that the defendant funded the clinical studies, a close reading of 2 the case demonstrates that the press releases were not relevant to the court’s order 3 granting the motion to dismiss. Rather, the court dismissed the claims because they 4 were so intertwined with allegations that the defendants engaged in illegal off-label 5 promotion. In this case, defendant has not argued the FDCA preempts plaintiff’s claims 6 and her claims are that defendant’s statement was fraudulent, i.e., literally false, 7 misleading, or omitted material facts. 8 Defendant does not address whether a reasonable consumer would be deceived 9 by a company failing to disclose that “physician recommended” really means paid 10 physician recommended. Nor does defendant argue that it did not have a duty to 11 disclose a material fact. Cf. Stanley v. Bayer Healthcare LLC, No. 11-cv-862-IEG (BLM), 12 2012 WL 1132920, at *4 (S.D. Cal. Apr. 3, 2012) (“A plaintiff may state a claim under the 13 CLRA or UCL based upon alleged omissions of fact in advertising. However, such 14 plaintiff must first demonstrate the defendant had a duty to disclose.”). 15 For the foregoing reasons, defendant’s motion to dismiss plaintiff’s first through 16 third causes of action is DENIED.5 17 2. Fourth Claim—Breach of Express Warranty 18 Plaintiff’s fourth claim is that defendant expressly warranted in its television 19 commercials, the products’ packaging and labels, and defendant’s website that the 20 products are without side effects and are physician recommended. FAC ¶ 110. Plaintiff 21 goes on to allege that the claims constituted an affirmation of fact, promise, or description 22 of the goods that became an express warranty and that defendant breached the terms of 23 the contract. Id. ¶¶ 110, 112. 24 “Under California law, any affirmation of fact or promise relating to the subject 25 5 In its reply, defendant argues plaintiff abandoned her UCL and CLRA claims by failing 26 to address them in the opposition. Reply at 3. All three causes of action—FAL, UCL, and CLRA—rely on the reasonable consumer standard and plaintiff’s opposition is 27 sufficiently clear that it applies to all of her false advertising causes of action. See Opp. 1 matter of a contract for the sale of goods, which is made part of the basis of the parties’ 2 bargain, creates an express warranty.” McDonnell Douglas Corp. v. Thiokol Corp., 124 3 F.3d 1173, 1176 (9th Cir. 1997) (citing Cal. Com. Code § 2313(1)(a)).
4 California courts use a three-step approach to express warranty issues. First, the court determines whether the 5 seller’s statement amounts to “an affirmation of fact or promise” relating to the goods sold. Second, the court determines if the 6 affirmation or promise was “part of the basis of the bargain.” Finally, if the seller made a promise relating to the goods and 7 that promise was part of the basis of the bargain, the court must determine if the seller breached the warranty. 8 9 Id. (quoting Keith v. Buchanan, 173 Cal. App. 3d 13 (Ct. App. 1985)). 10 “[C]ourts in this district regularly hold that stating a claim under California 11 consumer protection statutes is sufficient to state a claim for express warranty.” Hadley 12 v. Kellogg Sales Co., 273 F. Supp. 3d 1052, 1095 (N.D. Cal. 2017) (citing Tsan v. 13 Seventh Generation, Inc., No. 15-cv-00205-JST, 2015 WL 6694104, at *7 (N.D. Cal. Nov. 14 3, 2015) (because plaintiffs satisfied the reasonable consumer standard with respect to 15 their California consumer protection claims, the same “allegations [we]re sufficient to 16 state a claim for breach of express warranty”)); see also Ham, 70 F. Supp. 3d at 1195 17 (denying motion to dismiss breach of express warranty claim “for the same reasons as 18 the consumer protection and misrepresentation-based claims”). 19 Defendant argues that plaintiff’s express warranty claim essentially tries to dress 20 up her substantiation claims, which are within the exclusive jurisdiction of the FTC. Mtn. 21 at 12. Because the court has determined that plaintiff’s claims are not substantiation 22 claims, defendant’s reprise of its substantiation argument is unpersuasive. Instead, 23 because plaintiff’s allegations are sufficient to state a claim under the reasonable 24 consumer standard, they are likewise sufficient to state a claim for breach of express 25 warranty. 26 Accordingly, defendant’s motion to dismiss plaintiff’s fourth cause of action for 27 breach of express warranty is DENIED. 1 3. Fifth Claim—Unjust Enrichment 2 Plaintiff’s fifth claim alleges unjust enrichment because defendant knowingly 3 received and retained wrongful benefits and funds from plaintiff and class members. 4 FAC ¶ 119. Defendant argues that, under California law, unjust enrichment is not a 5 cause of action. Mtn. at 12–13. Plaintiff fails to address unjust enrichment in her 6 opposition. 7 The court agrees with defendant. “[U]njust enrichment is not a valid cause of 8 action in California.” Enreach Tech., Inc. v. Embedded Internet Sols., Inc., 403 F. Supp. 9 2d 968, 976 (N.D. Cal. 2005). “Unjust enrichment is not a cause of action, or even a 10 remedy, but rather a general principle, underlying various legal doctrines and remedies. 11 It is synonymous with restitution.” McBride v. Boughton, 123 Cal. App. 4th 379, 387 (Ct. 12 App. 2004) (citations omitted). “There are several potential bases for a cause of action 13 seeking restitution.” Id. Plaintiff, however, has not articulated a cause of action or theory 14 permitting restitution. 15 For the foregoing reasons, defendant’s motion to dismiss plaintiff’s fifth cause of 16 action for unjust enrichment is GRANTED. Because plaintiff has failed to articulate other 17 facts that could be plead in an amended complaint, further amendment of this claim is 18 futile and the dismissal is WITH PREJUDICE. 19 4. Motion to Strike 20 a. Attorneys’ Fees 21 Defendant moves to strike plaintiff’s request for attorneys’ fees. According to 22 defendant, the FTC already investigated Curallux and required Curallux to change its 23 advertising from “no side effects” to “no adverse side effects” and “recommended by 24 physicians” to “recommended by physicians within Capillus’ network.”6 Dkt. 31 at 5. 25 According to defendant, plaintiff seeks attorneys’ fees pursuant to California Code of Civil 26 Procedure § 1021.5, which requires a plaintiff to demonstrate that he or she actually 27 1 motivated a defendant to change its advertising in order to recover attorneys’ fees. Id. 2 Because the FTC motivated the change in advertising, defendant argues that plaintiff 3 could not be the reason defendant changed its advertising. Plaintiff responds by arguing 4 that a motion to strike is only proper for redundant, immaterial, impertinent, or scandalous 5 matter and her request for attorneys’ fees fits in none of those categories. Dkt. 40 at 1–2. 6 Further, her prayer for attorneys’ fees are authorized by California Civil Code § 1780(e) 7 and California Code of Civil Procedure § 1021.5. Id. at 2. 8 The court begins by noting that plaintiff brings a cause of action pursuant to the 9 CLRA, Cal. Civ. Code § 1750 et seq. FAC ¶ 97. Under Civil Code § 1780(e), a plaintiff 10 prevailing in litigation filed pursuant to the CLRA shall be awarded costs and attorneys’ 11 fees. Because the court has determined that plaintiff states a claim pursuant to the 12 CLRA, the remedy for such a violation also survives. For that reason it is premature to 13 strike plaintiff’s request for attorneys’ fees. The court takes no position on whether 14 plaintiff can prevail in seeking attorneys’ fees pursuant to California Code of Civil 15 Procedure § 1021.5 and defendant is free to raise its argument at a later stage. 16 b. Injunction 17 Next, defendant argues that, because the FTC has already addressed its 18 advertising, there is nothing left to enjoin. Dkt. 31 at 6. Plaintiff argues that Rule 12(f) 19 does not permit a court to strike a prayer for injunctive relief. Dkt. 40 at 3. 20 It is not clear to the court that the FTC remedial action agreed to by defendant is 21 coextensive with plaintiff’s requested injunction. Put differently, even though defendant 22 appears to have already made some changes to its advertising, plaintiff may be able to 23 demonstrate that further equitable relief is warranted. At the very least, defendant has 24 not demonstrated that the request for injunctive relief could have no possible bearing on 25 the subject matter of the litigation. Colaprico, 758 F. Supp. at 1339. This is especially 26 true where the facts concerning the FTC’s investigation7 and any remedial action are not 27 1 fully briefed and squarely before the court. 2 c. Class Allegations 3 Finally, defendant argues that the court should strike plaintiff’s class action 4 allegations because a class action cannot be maintained where a plaintiff alleges 5 personal injury. Dkt. 31 at 7. Plaintiff asserts that class action allegations are generally 6 not tested at the pleading stage and are instead usually addressed at a motion for class 7 certification. Dkt. 40 at 3. Plaintiff also contends that she is not alleging a personal injury 8 class action, rather she is alleging that defendant’s advertising is false, deceptive, and 9 misleading to consumers. Id. at 4. 10 In Sanders v. Apple Inc., 672 F. Supp. 2d 978, 991 (N.D. Cal. 2009), the district 11 court granted a motion to strike on the grounds that the plaintiff could not satisfy the 12 requirements of Rule 23(b)(3) because “fraud and warranty claims are difficult to maintain 13 on a nationwide basis and rarely are certified.” Thus, it is conceivable that a class action 14 allegation could be stricken prior to a motion for class certification. Defendant argues 15 such a course of action is appropriate here because plaintiff’s action is a personal injury 16 action and personal injury claims are rarely certified. However, as plaintiff points out, this 17 is not a personal injury action. Plaintiff alleges that she was deceived or misled by 18 defendant’s advertisements. As a general matter, courts certify class actions alleging 19 violations of the FAL, UCL, and CLRA. See, e.g., Guido v. L’Oreal, USA, Inc., 284 F.R.D. 20 468 (C.D. Cal. 2012). The court makes no finding whether plaintiff’s claims in this 21 instance are suitable for class certification. Rather, it is clear that striking the class 22 allegations at this time is not warranted. 23 For the foregoing reasons, defendant’s motion to strike is DENIED. 24 CONCLUSION 25 For the foregoing reasons, defendant’s motion to dismiss plaintiff’s fifth cause of 26
27 that defendant changed its advertising. Dkt. 31-1. Because defendant’s motion can be 1 action is GRANTED, and the claim is DISMISSED WITH PREJUDICE, and the motion is 2 DENIED in all other respects. Defendant’s motion to strike is DENIED. 3 IT IS SO ORDERED. 4 Dated: August 14, 2020 5 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27