Geri Marshall v. PH Beauty Labs, Inc.

Filing 32

ORDER GRANTING DEFENDANTS MOTION TO DISMISS IN PART AND DENYING IN PART 19 . Any amended complaint shall be filed within fourteen days of the date of this Order by Judge Dean D. Pregerson . (lc). Modified on 5/27/2015 (lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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GERI MARSHALL, on behalf of
herself and all others
similarly situated,

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Plaintiff,

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v.
PH BEAUTY LABS, INC. dba
FREEMAN BEAUTY,

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Defendant.
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___________________________

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Case No. CV 15-02101 DDP (AGRx)
ORDER GRANTING DEFENDANT’S MOTION
TO DISMISS IN PART AND DENYING IN
PART

[Dkt. 19]

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Presently before the court is Defendant PH Beauty Labs, Inc.’s

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Motion to Dismiss.

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parties and heard oral argument, the court grants the motion in

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part, denies the motion with respect to abandoned arguments, and

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adopts the following Order.

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I.

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Having considered the submissions of the

Background
Defendant sells a line of skin care products that claim to

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provide anti-aging benefits through the incorporation of apple stem

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cell extracts.

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Defendant’s products do not and cannot provide the advertised

(Complaint ¶ 1.)

Plaintiff alleges that

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benefits, that the clinical study upon which Defendant bases its

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claims is not reliable, and the Defendant had breached an express

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warranty that the products will provide certain dermal benefits.

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(Id. ¶¶ 2-3.)

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Plaintiff purchased one of Defendant’s products in Spring

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2011, “and then several times thereafter, perhaps approximately 5

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tims total.”

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including: “Plant-based beauty;” “Contains High Potency/Plant Stem

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Cells/A Swiss Phyto Extract/ for cellular rejuvenation;” “Clinical

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Results - 100% of Subjects Experienced Visible Decrease in Wrinkle

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Depth;” “Anti-Aging Cellular Activator Face Serum;” “Regenerates

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Skin Cells;” “Rehabilitates Aging Skin;” and “Resists Further

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Damage.”

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substantial period of time,” Plaintiff did not see the promised

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results.

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(Id. ¶ 27.)

(Id. ¶ 29.)

Plaintiff relied on statements

Although she used Defendant’s product for “a

(Id. ¶ 30.)

Plaintiff’s Complaint, removed to this court by Defendant,

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alleges claims under California law for unfair competition, false

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advertising, violations of the California Consumer Legal Remedies

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Act (“CLRA”) and breach of express warranty.

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to dismiss and/or narrow all claims.

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II.

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Defendant now moves

Legal Standard
A complaint will survive a motion to dismiss when it contains

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“sufficient factual matter, accepted as true, to state a claim to

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relief that is plausible on its face.”

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662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

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570 (2007)).

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“accept as true all allegations of material fact and must construe

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those facts in the light most favorable to the plaintiff.” Resnick

Ashcroft v. Iqbal, 556 U.S.

When considering a Rule 12(b)(6) motion, a court must

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v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

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need not include “detailed factual allegations,” it must offer

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“more than an unadorned, the-defendant-unlawfully-harmed-me

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accusation.”

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allegations that are no more than a statement of a legal conclusion

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“are not entitled to the assumption of truth.” Id. at 679.

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other words, a pleading that merely offers “labels and

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conclusions,” a “formulaic recitation of the elements,” or “naked

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assertions” will not be sufficient to state a claim upon which

Iqbal, 556 U.S. at 678.

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relief can be granted.

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Although a complaint

Conclusory allegations or

In

quotation marks omitted).

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Id. at 678 (citations and internal

“When there are well-pleaded factual allegations, a court should

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assume their veracity and then determine whether they plausibly

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give rise to an entitlement of relief.” Id. at 679.

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must allege “plausible grounds to infer” that their claims rise

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“above the speculative level.” Twombly, 550 U.S. at 555.

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“Determining whether a complaint states a plausible claim for

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relief” is a “context-specific task that requires the reviewing

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court to draw on its judicial experience and common sense.”

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556 U.S. at 679.

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III. Discussion

Plaintiffs

Iqbal,

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A.

Statute of Limitations

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Claims under California’s False Advertising Law (“FAL”) and

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the CLRA are subject to a three year statute of limitations.

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Code. Civ. Pro. § 1783; Cal. Civ. Code § 338(a).

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contends that, because Plaintiff purchased its product in Spring

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2011, the three-year statutes of limitations had run by the time

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Plaintiff filed her Complaint in February 2015, particularly in
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Cal.

Defendant

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light of Defendant’s alleged representation that its products are

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clinically proven to visibly repair skin in two weeks.

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24.)

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(Compl. ¶

Plaintiff first argues that her CLRA and FAL claims are not

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barred because, although she did first purchase Defendant’s product

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in Spring 2011, the Complaint alleges that she subsequently bought

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the product again “several times thereafter” and used the product

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“for a substantial period of time.”

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Plaintiff argues, her “claims may have accrued within the three-

(Compl. ¶¶ 27, 30.)

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year statute of limitations.”

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speculative assertion is not sufficient to state a plausible claim

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within the limitations period.

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(Opposition at 5.)

Thus,

This vague,

Nor is the court persuaded by Plaintiff’s invocation of the

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continuing violation doctrine.

The continuing violation doctrine

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aggregates “a series of small harms, any one of which may not be

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actionable on its own, into a single cause of action.

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of limitations would run from the date of the last harmful act.”

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NBCUniversal Media, LLC v. Superior Court, 225 Cal. App. 4th 1222,

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1237 n.10 (2014).

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product up to five times, it is unclear to the court why Plaintiff

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could not have brought her claims after her first disappointment in

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Spring 2011, or why that instance of alleged deficiency would only

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be actionable in conjunction with subsequent failures.

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subsequent wrongs might have triggered the statute of limitations

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anew under the theory of continuous accrual, as stated above,

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Plaintiff’s Complaint does not allege with sufficient certainty or

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specificity the timing of any purchase, use, or product failure

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after Spring 2011.

The statute

Here, although Plaintiff purchased Defendant’s

See id.
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While

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Lastly, Plaintiff argues that her CLRA and FAL claims are not

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time barred under the delayed discovery rule.

That rule “postpones

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accrual of a cause of action until the plaintiff discovers, or has

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reason to discover, the cause of action.”

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Solutions, Inc., 55 Cal. 4th 1185, 1192 (2013) (internal quotation

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marks omitted).

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to plead facts showing “(1) the time and manner of discovery and

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(2) the inability to have made earlier discovery despite reasonable

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diligence.”

Aryeh v. Canon Bus.

Plaintiff does not dispute that it is her burden

Yumul v. Smart Balance, Inc., 733 F.Supp.2d 1117, 1130

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(C.D. Cal. 2010).

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of action in May 2014 after speaking with her counsel, and that she

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could not have discovered Defendant’s “deceptive practices” earlier

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because she is not a skincare expert and does not have access to

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scientific publications.

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Plaintiff alleges that she discovered the cause

(Complaint ¶¶ 69, 70).

Such allegations are not sufficient to establish that

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Plaintiff was reasonably diligent.

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4th 383, 397 (1999).

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plaintiff discovers a cause of action when she has reason to

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suspect that someone has done something wrong to her.

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cannot simply wait for specific facts necessary to establish a

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specific cause of action to come to her.

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Plaintiff appears to have done exactly that.

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Spring 2011 that Defendant’s product did not deliver on Defendant’s

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alleged promises, yet did nothing for over three years.

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delayed discovery rule is therefore of no help to Plaintiff, and

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her FAL and CLRA claims are time-barred.

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Pfizer, Inc., No. 13-CV-414-LHK, 2014 WL 4275519 at *7 (N.D. Cal.

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Aug. 29, 2014).

Norgart v. Upjohn Co., 21 Cal.

For purposes of the delayed discovery rule, a

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A plaintiff

Id. at 397.

Here,

Plaintiff knew in

The

See also Plumlee v.

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B.

Unfair Competition

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California’s Unfair Competition Law (“UCL”) allows, among

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other things, private suits for restitution and injunctive relief

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against those alleged to have engaged in any unlawful, unfair, or

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fraudulent business act or practice.

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Superior Court, 101 Cal. App. 4th 1073, 1076-77 (2002); Cal. Bus. &

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Prof. Code 17200.

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wrongful acts violate a statute that does not create a private

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right of action, or when the statute of limitations has expired on

Rosenbluth Int’l, Inc. v.

The UCL permits claims even when the allegedly

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the underlying statute.

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(2002); Tomlinson v. Indymac Bank, F.S.B., 359 F.Supp.2d 898, 900

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(C.D. Cal. 2005), citing Cortez v. Purolator Air Filtration Prods.

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Co., 23 Cal. 4th 163, 178-79 (2000).

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limitations on UCL claims is four years, the dismissal of

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Plaintiff’s FAL and CLRA claims is not fatal to her UCL claim.

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Cal. Bus. & Prof. Code § 17208.

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Kasky v. Nike, Inc., 27 Cal.4th 929, 950

Because the statute of

Much of Plaintiff’s Complaint revolves around Defendant’s

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reliance on a study regarding apple stem cells.

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seq.)

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relies is not peer reviewed, suffers from a conflict of interest,

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is not applicable to skin care, is unreliable, and does not support

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Defendant’s claims about its products.

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asserts that these allegations constitute a “substantiation claim”

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that cannot serve as the basis for a false advertising or UCL claim

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under California law.1

(Compl. ¶ 39, et

The Complaint alleges that the study upon which Defendant

(Id. ¶¶ 39-51).

Defendant

The court agrees.

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Plaintiff’s UCL claim is only partly premised on alleged
false advertising.
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Courts distinguish between claims that a defendant’s

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advertisements are actually false and claims that a defendant’s

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representations are insufficiently substantiated.

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Consumer Litigation, 894 F.Supp.2d 1224, 1232 (N.D. Cal. 2012).

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advertised representation that has actually been disproved falls

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into the former category, while a representation that lacks

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evidentiary support, but has not been disproved, is merely

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unsubstantiated.

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2015 WL 846777 at *4 (N.D. Cal. Feb. 25, 2015).

In re Clorox
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Engel v. Novex Biotech LLC, No. 14-cv-3457-MEJ,
Under California

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law, substantiation claims may not be brought by private consumers.

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In re Clorox, 894 F.Supp.2d at 1232; Nat’l Council Against Health

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Fraud, Inc. v. King Bio Pharm., Inc., 107 Cal.App.4th 1335, 1345

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(2003); Cal. Bus. & Prof. Code § 17508(b).

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Plaintiff, citing to Southland Sod Farms v. Stover Seed Co.,

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108 F.3d 1134, 1139 (9th Cir. 1997), appears to argue that her

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claim survives Defendant’s challenge because the Lanham Act allows

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for “establishment claims” challenging the validity of a

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defendant’s tests or conclusions.

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Plaintiff contends that her claim is a permissible “establishment

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claim” and not a barred substantiation claim because she alleges

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that Defendant made false representations regarding what the

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clinical test of apple stem cells establishes.

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have not, however, adopted the Lanham Act’s distinction between

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establishment and non-establishment claims, and Plaintiff does not

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bring a Lanham Act claim.

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51.

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similar circumstances, in the absence of any allegation that a

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particular representation has been proven false, to allow a

(Opp. at 8.)

Specifically,

California courts

See King Bio, 107 Cal. App. 4th at 1350-

Further, as other courts in this circuit have recognized in

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Plaintiff to avoid the substantiation claim bar “simply by adding

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‘magic words,’ tethering the claims to an advertiser’s particular

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substantiation” would vitiate California’s ban on private

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substantiation claims.

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Plaintiff is correct that the court in Andriesian v. Cosmetic

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Dermatology, Inc., No. 14-cv-1600-ST, 2015 WL 1638729 (D.Or. Mar.

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3, 2013), denied a motion to dismiss claims similar to Plaintiff’s,

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the Andriesian court applied Oregon and Florida law, not that of

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California.

See Engel, 2015 WL 846777 at *5-6.

While

Because Plaintiff here does not allege that

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Defendant’s representations have been proven false, its UCL claims

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related to the adequacy of the clinical testing are substantiation

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claims, and must be dismissed.2

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C.

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Plaintiff’s breach of express warranty claim is based upon

Breach of Express Warranty

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Defendant’s representation that its product is “CLINICALLY PROVEN

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to visibly REPAIR & RENEW skin in 2 weeks.”

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prevail on a breach of express warranty claim under California law,

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a plaintiff must prove that: (1) the seller’s statements constitute

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an affirmation of fact or promise or a description of the goods;

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(2) the statement was part of the basis of the bargain; and (3) the

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warranty was breached.”

(Compl. ¶ 106.)

“To

In re ConAgra Foods, Inc., – F.Supp.3d – ,

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It is somewhat unclear whether Defendant’s arguments
regarding puffery are targeted at the same claims as its
substantiation claim arguments. In any event, Defendant appears to
have abandoned its puffery arguments in its reply. Defendant also
appears to have abandoned its arguments regarding Plaintiff’s
standing to bring claims related to products she did not purchase.
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2015 WL 1062756 at 35 (C.D. Cal. Feb. 23, 2015); Weinstat v.

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Dentsply Int’l, Inc., 180 Cal. App. 4th 1213, 1227 (2010).3

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Putting aside the question whether Defendant’s representation

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that its product was clinically proven to have a demonstrable

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affect is equivalent to an affirmation that Plaintiff would see

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similar results, Plaintiff’s breach of express warranty claim

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nevertheless fails.

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to which she points was not displayed on the product’s packaging at

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the time she purchased the product, nor that the language did not

Plaintiff does not dispute that the language

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appear on the packaging until almost two years later.

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of Theodore Paul in Support of Motion, Exs. 2, 3.)

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Plaintiff argues that the court should not go beyond the pleadings

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to consider the product labels, courts may properly consider

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documents referenced in the complaint without converting the motion

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to dismiss into a motion for summary judgment.

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Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).

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Defendant’s statement had not yet been made at the time Plaintiff

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purchased Defendant’s product, that statement could not possibly

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have been part of the basis of the bargain.

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express warranty claim is, therefore, dismissed.

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IV.

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(Declaration

Although

See Lee v. City of
Because the

Plaintiff’s breach of

Conclusion
For the reasons stated above, Defendant’s Motion to Dismiss is

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GRANTED, in part.

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warranty claims are DISMISSED, with leave to amend.

Plaintiff’s CLRA, FAL, and breach of express
Plaintiff’s

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Although Plaintiff does not appear to take issue with
Defendant’s citation to Williams v. Beechnut Nutrition Corp., 185
Cal. App. 3d 135, 142 (1986) or its statement that reliance is an
element of a breach of express warranty claim, the majority of
cases conclude that reliance is not an essential element. See In
re ConAgra, – F.Supp.3d – at 35 n. 198.
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UCL claim is dismissed, to the extent that it relies upon

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substantiation claims and allegations related thereto, with leave

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to amend.

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allegations on puffery and standing grounds, then abandoned those

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arguments, the motion is DENIED.

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filed within fourteen days of the date of this Order.

Insofar as Defendant moved to dismiss certain claims and

Any amended complaint shall be

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IT IS SO ORDERED.

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Dated: May 27, 2015
DEAN D. PREGERSON
United States District Judge

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