Cardenas v. NBTY, Inc. et al

Filing 51

ORDER denying 26 Motion to Dismiss signed by Judge Lawrence K. Karlton on 5/3/12. (Matson, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LILIANA CARDENAS, on Behalf
of Herself and All Other
Similarly Situated
California Residents,

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NO. CIV. S-11-1615 LKK/CKD
Plaintiff,

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v.
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13
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NBTY, INC., a Delaware
corporation and REXALL
SUNDOWN, INC., a Florida
corporation,

O R D E R

15
Defendants.
/

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17

This class action alleges that Defendants NBTY Inc. (“NBTY”)

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and Rexall Sundown Inc. (“Rexall”) deceptively market and sell the

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Osteo Bi-Flex line of joint health dietary supplements without

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support for the efficacy representations made about those products.

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Plaintiff

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similarly situated consumers of the Osteo Bi-Flex products, alleges

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violations of California's Consumers Legal Remedies Act and its

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Unfair Competition Law, and also allege breach of express warranty.

25
26

Liliana

Cardenas,

on

behalf

of

herself

and

other

Presently before the court is Defendants’ motion to dismiss
Plaintiff’s second amended complaint. See Defs’ Mot., ECF No. 26.
1

1

For the reasons provided below, the court denies Defendants’ motion

2

to dismiss.

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4

I. BACKGROUND
A. Plaintiff’s Complaint1

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Within the last year and a half, Plaintiff Liliana Cardenas

6

saw Defendants’ representations by reading the front, back, and

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sides of the Osteo Bi-Flex Regular Strength label at a Rite Aid

8

store in Roseville, California.

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25, at 4.

Pl’s Second Am. Compl., ECF No.

Plaintiff Cardenas “relied on every single one of

10

Defendants’ renewal and rejuvenation representations” and purchased

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the Osteo Bi-Flex product “to relieve her joint pain.”

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Osteo Bi-Flex Regular Strength that Plaintiff purchased and took

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as directed did not help to promote mobility, renew cartilage,

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maintain healthy connective tissue, or improve joint comfort, as

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represented.

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and lost money.

Id.

Id.

The

As a result, Plaintiff suffered injury in fact
Id.

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Since 1996, Defendants have developed, manufactured, marketed,

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distributed, and sold a line of joint supplements under the Osteo

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Bi-Flex brand name, including: (1) Osteo Bi-Flex One Per Day; (2)

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Osteo Bi-Flex Triple Strength; (3) Osteo Bi-Flex Double Strength;

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(4) Osteo Bi-Flex Triple Strength with Vitamin D; (5) Osteo Bi-Flex

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MSM; (6) Osteo Bi-Flex Energy Formula; (7) Osteo Bi-Flex Regular

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24
25
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1

These facts are taken from the allegations in the
Plaintiffs’ Second Amended Complaint, ECF No. 25, unless otherwise
specified. The allegations are taken as true for purposes of this
motion only. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct.
2197, 167 L.Ed.2d 1081 (2007).
2

1

Strength; and (8) Osteo Bi-Flex Advanced.

Id. at 5.

2

The Osteo Bi-Flex products are sold in a number of major food,

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drug, and mass retail outlet stores in California, including Wal-

4

Mart,

5

Walgreens.

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75, 80, 120, and 150 count bottles, retailing for approximately

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$19.99 to $44.99.

Costco

Wholesale,

Id.

Sam’s

Club,

Rite-Aid,

Target,

and

The Osteo Bi-Flex products are available in 30,

Id.

8

According to Plaintiff, Defendants have consistently conveyed

9

the message to consumers throughout California that Osteo Bi-Flex

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will help to “promote mobility,” “renew cartilage,” “maintain

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healthy connective tissue,” and improve joint comfort by taking the

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recommended number of tablets each day.

Id. at 6.

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According to Plaintiff, Defendants represent that the claimed

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health benefits are achieved through the combination of ingredients

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in the products.

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hydrochloride–-is in all the Osteo Bi-Flex products and is an amino

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sugar that the body produces and distributes in cartilage and other

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connective tissue.

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competent

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glucosamine–-let alone through oral administration--results in the

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body metabolizing it into something that helps to promote mobility,

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renew cartilage, maintain healthy connective tissue or improve

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joint comfort.

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no causative link between glucosamine hydrochloride supplementation

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and joint renewal or rejuvenation.

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and

Id.

The primary active ingredient–-glucosamine

Id.

reliable

Id.

Plaintiff asserts that there is no
scientific

evidence

that

taking

Clinical cause and effect studies have found

Id.

The Osteo Bi-Flex products also contain Defendants’ 5-LOXIN
3

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Advanced, which consists of a concentrated extract of Boswellia

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Serrata (“AKBA”).

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product without AKBA. Although Defendants claim that AKBA results

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in “improvement in joint comfort within 7 days,” there is no

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competent and reliable scientific evidence that taking AKBA–-let

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alone through oral administration–-helps to “promote mobility,”

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“renew cartilage,” “maintain healthy connective tissue,” or improve

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joint comfort.

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to

10

confirm

a

Osteo Bi-Flex Regular Strength is the only

Clinical cause and effect studies have been unable
cause

and

effect

relationship

between

AKBA

supplementation and joint renewal or rejuvenation.

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The Osteo Bi-Flex products also contain lesser amounts of the

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following other ingredients: chondroitin sulfate, which is in all

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of the Osteo Bi-Flex products except for Osteo Bi-Flex One Per Day;

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methylsulfonylmethane, which is in all of the products except for

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Osteo Bi-Flex One Per Day and Osteo Bi-Flex Regular Strength;

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hyaluronic acid, which is in all of the products except for Osteo

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Bi-Flex Advanced, Osteo Bi-Flex One Per Day, and Osteo Bi-Flex

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Regular Strength; and vitamin D, vitamin C, manganese, boron, and

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collagen.

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scientific evidence that taking chondroitin, methylsulfonylmethane,

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hyaluronic

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collagen–-let alone through oral administration–-helps to “promote

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mobility,” “renew cartilage,” “maintain healthy connective tissue,”

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or improve joint comfort.

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have

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methylsulfonylmethane, hyaluronic acid,

Id. at 7-8.

acid,

found

no

vitamin

There is no competent and reliable

D,

vitamin

Id.

C,

manganese,

boron,

or

Clinical cause and effect studies

causative

link

4

between

chondroitin,

vitamin D, vitamin C,

1

manganese, boron, or collagen supplementation and joint renewal or

2

rejuvenation.

Id.

3

The packages for the Osteo Bi-Flex products reference two

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studies supporting the Defendants’ representation that the product

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“shows

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included to enable customers to locate and review the studies. Id.

7

at 8.

8

evidence that any of the ingredients in their Osteo Bi-Flex

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products, when taken alone or in combination, are effective at

improvement

in

joint

comfort,”

but

no

information

is

Defendants do not have competent and reliable scientific

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helping provide joint renewal or rejuvenation.

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Numerous clinical studies have resulted in a finding of no efficacy

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for

13

prevention of joint degeneration or relief from joint discomfort.

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Id.

the

ingredients

in

the

Osteo

Bi-Flex

Id. at 10.

products

and

the

15

As noted, plaintiff alleges violations of California's Unfair

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Competition Law (“UCL”), Business & Professions Code § 17200, et

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seq., and its Consumers Legal Remedies Act (“CLRA”), California

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Civil Code § 1750, et seq., as well as breach of express warranty.

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Id. at 14-18.

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restitution and disgorgement of Defendants’ revenues, injunctive

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relief, and statutory and punitive damages.

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B. Defendants’ Motion to Dismiss

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Plaintiff seeks, inter alia, compensatory damages,

Id. at 18-19.

Defendants make, inter alia, the following arguments.

As a

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preliminary matter, Defendants argue that Plaintiff lacks standing

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to pursue claims, including putative class claims, as to the Osteo

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Bi-Flex products she did not purchase and advertising she did not
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view.

See Defs’ Mot., ECF No. 26, at 7-11.

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argue that Plaintiff has failed to allege sufficient facts to

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support any of her claims because: (1) Plaintiff must allege and

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ultimately prove that the challenged marketing is actually false

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or misleading, and claims that the representation merely lacks

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substantiation are insufficient, id. at 11-15; and (2) Plaintiff

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makes conclusory and unspecified allegations regarding clinical

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cause and effect studies, which are insufficient to show what is

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specifically false or misleading about Defendants’ representations,

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why those representations are false, and what facts Defendants were

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purportedly required to disclose, as required by Federal Rules of

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Civil Procedure 8 and 9(b), id. at 15-18.

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request

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“Plaintiff has already amended her complaint twice, and the claims

15

remain fundamentally defective.”2

that

the

case

be

dismissed

with

Second, Defendants

Finally, Defendants
prejudice

because

Id. at 20.

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In opposing Defendants’ motion to dismiss, Plaintiff argues,

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inter alia, that: (1) Plaintiff has standing to assert claims based

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on the advertised representations pertaining to all of the Osteo

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Bi-Flex products and Defendants’ argument that Plaintiff lacks

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2

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25
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Plaintiff filed her initial complaint on June 14, 2011.
See Pl’s Compl., ECF No. 1. On July 5, 2011, before the Defendants
responded to Plaintiff’s complaint, the parties stipulated that
Plaintiff would file a First Amended Complaint, and that Defendants
would be given an extension of time to file a response to the First
Amended Complaint. See Stip. & Order, ECF No. 8. On July 25,
2011, Plaintiff filed her First Amended Complaint. See Pl’s First
Am. Compl., ECF No. 10. On August 24, 2011, Defendants filed a
motion to dismiss Plaintiff’s first amended complaint. See Defs’
Mot., ECF No. 19. In response to Defendants’ motion to dismiss,
Plaintiff filed the second amended complaint currently at issue.
See Pl’s Second Am. Compl., ECF No. 25.
6

1

standing “is a premature and erroneous Rule 23 typicality argument,

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made under the guise of a standing argument,” see Pl’s Opp’n, ECF

3

No. 29, at 5-9; (2) Defendants are improperly characterizing

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Plaintiff’s claims as “lack of substantiation” or “nondisclosure”

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claims, when Plaintiff, in fact, is alleging claims for false and

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deceptive advertising, id. at 9-10; (3) even if Plaintiff’s claims

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may be characterized as lack of substantiation claims, it remains

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“actionable conduct when a manufacturer makes false and misleading

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health benefit claims about a product without having competent

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scientific proof supporting those claims,” id. at 10-11; (4)

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Plaintiff’s UCL and CLRA claims are not predicated on common law

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fraud, and thus, Rule 8(a) (as opposed to Rule 9(b)) pleading

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standards apply and Plaintiff has satisfied those standards, id.

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at 11-13; and (5) even if the court determines that Plaintiff’s

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complaint does “sound in fraud,” Plaintiff has satisfied Rule 9(b)

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pleading requirements, id. at 14-15.

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II. STANDARDS FOR A MOTION TO DISMISS

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A. Dismissal of claims governed by Federal Rule of Civil

19

Procedure 8(a)

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A Federal Rule of Civil Procedure 12(b)(6) motion challenges

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a complaint's compliance with the pleading requirements provided

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by

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established by Federal Rule of Civil Procedure 8, although claims

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that are “grounded in fraud” or “sound in fraud” must meet the

25

requirements provided by Federal Rule of Civil Procedure 9(b).

26

Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103-04 (9th Cir.

the

Federal

Rules.

In

general,

7

these

requirements

are

1

2003).

2

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must

3

contain a “short and plain statement of the claim showing that the

4

pleader is entitled to relief.”

5

complaint must “give the defendant fair notice of what the claim

6

is and the grounds upon which it rests.”

7

Twombly,

8

modification omitted).

9

550

U.S.

544,

555

Fed.R.Civ.P. 8(a)(2).

(2007)

The

Bell Atlantic Corp. v.

(internal

quotation

and

To meet this requirement, the complaint must be supported by

10

factual allegations.

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129

11

S.Ct. 1937, 173 L.Ed.2d 868 (2009).

12

provide the framework of a complaint,” neither legal conclusions

13

nor conclusory statements are themselves sufficient, and such

14

statements are not entitled to a presumption of truth. Id. at 679.

15

Iqbal and Twombly therefore prescribe a two step process for

16

evaluation of motions to dismiss.

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non-conclusory factual allegations, and the court then determines

18

whether these allegations, taken as true and construed in the light

19

most favorable to the plaintiff, “plausibly give rise to an

20

entitlement to relief.”

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127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007).3

“While legal conclusions can

The court first identifies the

Id.; Erickson v. Pardus, 551 U.S. 89, 94,

22
23
24
25
26

3

As discussed below, the court may consider certain limited
evidence on a motion to dismiss. As an exception to the general
rule that non-conclusory factual allegations must be accepted as
true on a motion to dismiss, the court need not accept allegations
as true when they are contradicted by this evidence. See Mullis v.
United States Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir. 1987),
Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987).
8

1

“Plausibility,” as it is used in Twombly and Iqbal, does not

2

refer to the likelihood that a pleader will succeed in proving the

3

allegations.

4

factual allegations, when assumed to be true, “allow[] the court

5

to draw the reasonable inference that the defendant is liable for

6

the

7

plausibility standard is not akin to a 'probability requirement,'

8

but it asks for more than a sheer possibility that a defendant has

9

acted unlawfully.”

Instead, it refers to whether the non-conclusory

misconduct

alleged.”

Iqbal,

556

U.S.

at

678.

“The

Id. (quoting Twombly, 550 U.S. at 556).

A

10

complaint may fail to show a right to relief either by lacking a

11

cognizable legal theory or by lacking sufficient facts alleged

12

under a cognizable legal theory. Balistreri v. Pacifica Police

13

Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

14

B. Dismissal of Claims Governed by Federal Rule of Civil

15

Procedure 9(b)

16

A Rule 12(b)(6) motion to dismiss may also challenge a

17

complaint’s compliance with Federal Rule of Civil Procedure 9(b).

18

See Vess, 317 F.3d at 1107.

19

fraud or mistake, a party must state with particularity the

20

circumstances constituting fraud or mistake.

21

knowledge, and other conditions of a person’s mind may be alleged

22

generally.”

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“time, place, and specific content of the false representations as

24

well as the identities of the parties to the misrepresentations.”

25

Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (quoting

26

Edwards v. Marin Park, Inc., 356 F.3d 1058, 1066 (9th Cir. 2004)).

This rule provides that “In alleging

Fed.R.Civ.P. 9(b).

Malice, intent,

These circumstances include the

9

1

Rule 9(b) requires fraud claims to be specific enough to give

2

defendants notice of the particular misconduct which is alleged to

3

constitute the fraud charged, so that they can defend against the

4

charge and not just deny that they have done anything wrong.

5

(citing Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir.

6

2001).

7

false or misleading about a statement, and why it is false.

8

317 F.3d at 1106 (citing Decker v. GlenFed, Inc., 42 F.3d 1541,

9

1548 (9th Cir. 1994)).

That is, the plaintiff must specifically set forth what is

10
11
12

Id.

Vess,

III. ANALYSIS
A. Osteo Bi-Flex Product Packaging
When ruling on a motion to dismiss, the court may consider a

13

variety of documents in addition to the complaint.

For example,

14

the court may consider documents attached to the complaint.

15

Durning v. First Boston, Corp., 815 F.2d 1265, 1267 (9th Cir.

16

1987), cert. denied, 484 U.S. 944, 108 S.Ct. 330, 98 L.Ed.2d 358

17

(1987).

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alleged in a complaint and whose authenticity no party questions,

19

but which are not physically attached to the pleading.”

20

Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), cert. denied, 512 U.S.

21

1219, 114 S.Ct. 2704, 129 L.Ed.2d 832 (1994), overruled on other

22

grounds, Galbraith v. County of Santa Clara, 307 F.3d 1119, 1121

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(9th Cir. 2002).

24

have included copies of product packaging for the eight Osteo Bi-

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Flex products currently at issue in this dispute.

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packaging

The court may also consider “documents whose contents are

serves

Branch v.

Attached to their motion to dismiss, Defendants

as

a

basis

for
10

Plaintiff’s

Because the

allegations

and

1

Plaintiff does not contest their authenticity, the court here

2

considers

3

Defendants’ motion to dismiss.

4

A-H.

5

B. Standing

the

Osteo

Bi-Flex

product

packaging

in

ruling

on

See Defs’ Mot., ECF No. 26, Exs.

6

To establish Article III standing, a plaintiff must have an

7

injury in fact, which is traceable to the defendant’s acts and

8

redressable by a court decision.

9

Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 110 L.Ed.2d 351

See Lujan v. Defenders of

10

(1992).

Injury in fact results from the invasion of a legally

11

protected interested which is concrete and particularized, as well

12

as actual or imminent. Id. at 560 (citations omitted). In a class

13

action, standing is satisfied if “at least one named plaintiff

14

meets the requirements.” Bates v. UPS, 511 F.3d 974, 985 (9th Cir.

15

2007).

16

Here, Plaintiff alleged that she read the front, back, and

17

sides of the Osteo Bi-Flex Regular Strength label at a Rite Aid

18

store in Roseville, California, and lost money on the ineffective

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Osteo Bi-Flex product that she would not have purchased but for the

20

representations thereon.

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compensatory damages. These allegations constitute injury in fact

22

and suffice to establish that the Plaintiff has Article III

23

standing, at least as to the Osteo Bi-Flex Regular Strength product

24

that Plaintiff purchased and the representations on the packaging

25

of that product upon which she relied.

26

Plaintiff seeks, among other remedies,

A plaintiff alleging a UCL claim must satisfy both Article III
11

1

standing requirements and UCL standing requirements. See Birdsong

2

v. Apple, Inc., 590 F.3d 955, 960 n.4 (9th Cir. 2009).

3

plaintiff with standing is a person who has (1) suffered injury in

4

fact and (2) lost money or property as a result of the unfair

5

competition. Degelmann v. Advanced Medical Optics, Inc., 659 F.3d

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835, 839 (9th Cir. 2011) (citing Cal. Bus. & Prof. Code § 17204).

7

That is, UCL plaintiffs are required to show that they have lost

8

money or property sufficient to constitute an “injury in fact”

9

under Article III of the Constitution.

A UCL

Id. (citing Rubio v.

10

Capital One Bank, 613 F.3d 1195, 1203-04 (9th Cir. 2010); Birdsong,

11

590 F.3d at 959-60).

12

standing in the form of economic injury.

13

Plaintiff’s allegation that she lost money on the ineffective Osteo

14

Bi-Flex product is sufficient to meet the standing requirement of

15

economic injury under the UCL, as to the Osteo Bi-Flex Regular

16

Strength product that she purchased.

Thus, a UCL plaintiff must have Article III
In the instant case,

17

Under the CLRA, an action may be brought by: “Any consumer who

18

suffers any damage as a result of the use or employment by any

19

person of a method, act, or practice declared to be unlawful by

20

Section 1770 . . . . ”

21

standing, a plaintiff must allege that he or she was damaged by an

22

alleged unlawful practice. Johns v. Bayer Corp., No. 09-1935, 2010

23

WL 476688, at *4 (S.D.Cal. Feb. 9, 2010) (citing Meyer v. Sprint

24

Spectrum L.P., 45 Cal.4th 634, 638, 88 Cal.Rptr.3d 859, 200 P.3d

25

295 (2009)). Again, Plaintiff’s allegation that she lost money due

26

to Defendants’ unlawful representations is sufficient to establish

Cal. Civ. Code § 1780(a).

12

In order to have

1

Plaintiff’s standing to bring a claim under the CLRA for any

2

misrepresentations she relied upon relating to the Osteo Bi-Flex

3

Regular Strength product that she purchased.

4

It is less clear whether Plaintiff has standing to bring

5

claims under the UCL and the CLRA as to the Osteo Bi-Flex products

6

that she did not purchase and the advertising she did not view.

7

The court in Bayer Corp. provided, in dicta, that a plaintiff

8

“cannot expand the scope of his claims to include a product he did

9

not purchase or advertisements relating to a product that he did

10

not rely upon.” Bayer Corp., 2010 WL 476688, at *5. Some district

11

courts in the Ninth Circuit have followed this view.

12

Carrea v. Dreyer’s Grand Ice Cream, Inc., No. 3:10-cv-01044-JSW,

13

2011 WL 159380, at *3 (N.D. Cal. Jan. 10, 2011) (holding that

14

plaintiff has standing to bring UCL and CLRA claims for the

15

Drumstick ice cream products purchased, but dismissing plaintiff’s

16

claims for the Dibs ice cream product, which plaintiff never

17

alleged he purchased or suffered a loss), aff’d, No. 11-15263, 2012

18

WL 1131526 (9th Cir. April 5, 2012) (unpublished) (declining to

19

address the district court’s standing determination); Mlejnecky v.

20

Olympus Imaging Am. Inc., No. 2:10-cv-2630, 2011 WL 1497096, at *4

21

(E.D.Cal. April 19, 2011) (Mendez, J.) (dismissing plaintiff’s CLRA

22

and UCL claims relating to a camera model that has the “same

23

underlying defects” and used the same advertisements as the model

24

she purchased, but for which she did not allege any economic

25

injury).

26

Other

recent

court

decisions,
13

however,

have

See, e.g.,

applied

a

1

different

approach

when

facing,

in

a

class

action,

a

named

2

plaintiff’s assertion of claims related to products that she did

3

not buy.

4

claims by the named plaintiffs for computer models that they had

5

not purchased, but that were subject to the “same core factual

6

allegations and causes of action.”

7

Wash. 2010).

8

upheld class certification for UCL, CLRA, express warranty, and

9

unjust enrichment claims relating to display failures in several

10

models, even though the named plaintiff only purchased one of those

11

models.

12

While Carideo can be distinguished from the issues presented in

13

this case because it does not address standing requirements as

14

related to California law, and Hewlett-Packard can be distinguished

15

from the issues here presented because the court in Hewlett-

16

Packard was not analyzing standing issues, it is more difficult to

17

dismiss or distinguish the court’s holding in Bruno v. Quten

18

Research Inst., LLC, 8:11-cv-00173, 2011 WL 5592880, at *3-4 (C.D.

19

Cal. Nov. 14, 2011).

For example, in Carideo v. Dell, Inc., the court upheld

706 F.Supp.2d 1122, 1134 (W.D.

And in Hewlett-Packard v. Superior Ct., the court

167 Cal.App.4th 87, 89-92, 83 Cal.Rptr.3d 836 (2008).

20

Similar to the instant case, in Bruno, the plaintiff filed a

21

class action against the manufacturer and marketer of supplements

22

alleging

23

California’s UCL and CLRA.

24

in Bruno had standing to bring claims arising from the defendants’

25

gelcap

26

defendants’ liquid product, the court noted that “treatises and the

misrepresentations

product,

when

the

in

violation

of,

inter

alia,

In considering whether the plaintiff

plaintiff

14

had

only

purchased

the

1

vast majority of persuasive authority indicate that . . . the issue

2

of whether a class representative may be allowed to present claims

3

on behalf of others who have similar, but not identical, interests

4

depends not on standing, but on an assessment of typicality and

5

adequacy of representation.”

6

CompuCredit Corp., No. 4:08-cv-04878, 2010 WL 4807095, at *3 (N.D.

7

Cal. Nov. 19, 2010); Arevalo v. Bank of Am. Corp., —– F.Supp.2d –-,

8

2011 WL 1195973, at *4 (N.D. Cal. Mar. 29, 2011); Fallick v.

9

Nationwide Mut. Ins. Co., 162 F.3d 410, 423 (6th Cir. 1998)

10

(holding that, because plaintiff had standing to sue for injury

11

arising from his own benefit plan, his ability to represent class

12

members with different benefit plans should be analyzed under Rule

13

23,

14

Procedure (3d 2005) § 1785.1).

not

standing);

7AA

Id. at *3 (citing Greenwood v.

Wright

et

al.,

Federal

Practice

and

15

The court here finds the reasoning of Bruno more persuasive

16

than the reasoning provided by the dicta of Bayer Corp. and its

17

progeny.

18

to assert her UCL and CLRA claims based on her purchase of Osteo

19

Bi-Flex

20

representations that its line of Osteo Bi-Flex products, which

21

ostensibly

22

mobility,” “improve joint comfort,” and “support[] renewal of

23

cartilage.”

24

Plaintiff may be allowed to present claims on behalf of purchasers

25

of the remaining Osteo Bi-Flex products.

Thus, the court determines that Plaintiff has standing

Regular

share

Strength

many

and

the

similarities

product’s

in

more

ingredients,

general

“improve

The court will analyze solely under Rule 23 whether

26
15

1

C. Applicability of Federal Rule of Civil Procedure 9(b)

2

Defendants argue that Plaintiff’s claims sound in fraud and

3

are, therefore, subject to the particularized pleading requirements

4

of Rule 9(b).

5

The Ninth Circuit has specifically held that Rule 9(b)’s

6

heightened pleading standards apply to claims for violations of the

7

CLRA and UCL.

8

Cir. 2009) (citing Vess, 317 F.3d at 1102-05).

9

a necessary element of a claim under the CLRA and UCL, a plaintiff

10

may nonetheless allege that the defendant engaged in fraudulent

11

conduct.

12

allege a unified course of fraudulent conduct and rely entirely on

13

that course of conduct as the basis of that claim, in which event,

14

the claim is said to be “grounded in fraud” or to “sound in fraud,”

15

and

16

requirement of Rule 9(b). Id. (citing Vess, 317 F.3d at 1103-04).

17

the

Id.

Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th
While fraud is not

(citing Vess, 317 F.3d at 1103).

pleading

as

a

whole

must

satisfy

A plaintiff may

the

particularity

To determine if the elements of fraud have been pleaded to
Kearns, 567

18

state a cause of action, courts look to state law.

19

F.3d at 1126 (citing Vess, 317 F.3d at 1105-06).

20

a

21

misrepresentation

22

nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c)

23

intent to defraud, i.e., to induce reliance; (d) justifiable

24

reliance; and (e) resulting damage.”

25

Permanente Med. Group, Inc., 15 Cal.4th 951, 974, 64 Cal.Rptr.2d

26

843, 938 P.2d 903 (Cal. 1997)).

cause

of

action

for

(false

fraud

in

California

representation,

16

The elements of
are:

concealment,

“(a)
or

Id. (citing Engalla v.

1

If the claim is grounded in fraud, the pleading of that claim

2

as a whole must satisfy the particularity requirement of Rule 9(b).

3

Kearns, 567 F.3d at 1127 (citing Vess, 317 F.3d at 1103-04).

4

Plaintiff argues that her action does not sound in fraud, but

5

instead, alleges claims of false and deceptive advertising.

6

However, Plaintiff specifically asserts the elements of a cause of

7

action for fraud in her CLRA claim.

8

claim, Plaintiff alleges that Defendants “fail[ed] to disclose

9

material facts on the Osteo Bi-Flex product labels and packaging”

10

(nondisclosure), “when they knew, or should have known, that the

11

representations were unsubstantiated” (scienter). Pl’s Second Am.

12

Compl., ECF No. 25, at 17, ¶ 59.

13

“relied on every single one of Defendants’ renewal and rejuvenation

14

representations” (justifiable reliance), and that she “suffered

15

injury in fact and lost money” (resulting damage). Id. at 4, ¶ 8.

16

Because Plaintiff alleges each of the elements of an action for

17

fraud in her CLRA claim, the pleading of that claim, as a whole,

18

must satisfy the particularity requirement of Rule 9(b).

19

Specifically, in her CLRA

Plaintiff also asserts that she

Plaintiff does not, however, allege knowledge of falsity, or

20

scienter, as part of her UCL claim.

21

therefore does not “sound in fraud” and Rule 9(b) applies only

22

insofar as Plaintiff makes specific averments of fraud in her UCL

23

claim. See Vess, 317 F.3d at 1105 (“[I]n a case where fraud is not

24

an essential element of a claim, only allegations . . . of

25

fraudulent

26

requirements of Rule 9(b).

conduct

must

satisfy

the

Plaintiff’s UCL claim

heightened

pleading

Allegations of non-fraudulent conduct
17

1

need satisfy only the ordinary notice pleading standards of Rule

2

8(a).”).

3

In

the

complaint

as

pled,

however,

it

is

difficult

to

4

distinguish between those averments in Plaintiff’s UCL claim that

5

are based on fraud, and those averments that are based on non-

6

fraudulent conduct.4

7

alleges that she and other class members “lost money as a result

8

of these unlawful, unfair, and fraudulent practices.” Pl’s Second

9

Am. Compl., ECF No. 25, at 15, ¶ 51 (emphasis added).

As part of Plaintiff’s UCL claim, Plaintiff

Plaintiff

10

characterizes the Defendants’ representations as “fraudulent,”

11

apparently in reference to Defendants’ false advertising generally,

12

and not related to any of Defendants’ statements in particular.

13

Because the alleged fraudulence of Defendants’ advertising is

14

inseparable from any other averments made as part of Plaintiff’s

15

UCL claim, the court determines that Plaintiff’s UCL claim, as a

16

whole, must meet the pleading standards of Rule 9(b).

17

D. Sufficiency of Plaintiff’s Complaint Under Rule 9(b).

18

The court here determines that Plaintiff’s complaint meets the

19

pleading standards of Federal Rule of Civil Procedure 9(b).

When

20

taking Plaintiff’s factual allegations as true and construing them

21

in the light most favorable to Plaintiff, Plaintiff’s allegations

22

of the falsity of the Osteo Bi-Flex representations are sufficient

23

to survive Defendants’ motion to dismiss.

24
25
26

4

The court notes that not all claims of false advertising are
necessarily grounded in fraud.
See Fraker v. Bayer Corp., No.
1:08-cv-01564, 2009 WL 5865687, at *9 (E.D.Cal. Oct. 6, 2009).
18

1

Plaintiff argues, and the court agrees, that the gravamen of

2

her complaint asserts that “it is actionable conduct when a

3

manufacturer makes false and misleading health benefit claims about

4

a product without having competent scientific proof supporting

5

those claims.”

Pl’s Opp’n, ECF No. 29, at 11.

6

Pursuant to Section 17500 of the California Business and

7

Professions Code, it is unlawful to make and disseminate any

8

statement that is “untrue or misleading, and which is known, or by

9

the exercise of reasonable care should be known, to be untrue or

10

misleading.”

Cal. Bus. & Prof. § 17500.

11

misleading if members of the public are likely to be deceived.

12

Fraker v. Bayer Corp., No. 1:08-cv-01564, 2009 WL 5865687, at *7

13

(E.D.Cal. Oct. 6, 2009) (citing McCann v. Lucky Money, Inc., 129

14

Cal.App.4th

15

(internal citations omitted)).

16

applies when determining whether a given claim is misleading or

17

deceptive.

18

consumer acting reasonably under the circumstances,” and “is not

19

versed in the art of inspecting and judging a product, in the

20

process of its preparation or manufacture.”

1382,

1388,

Id. at *6.

29

Cal.Rptr.3d

A statement is false or

437

(4th

Dist.

2005)

A “reasonable consumer” standard

A “reasonable consumer” is “the ordinary

Id.

21

Plaintiff refers to “clinical cause and effect studies” that

22

“have found no causative link” between the individual ingredients

23

contained in the Osteo Bi-Flex products and the benefits purported

24

thereon.

25

Defendants’ representations related to improved joint comfort,

26

joint lubrication, and other joint benefits, appear to be based,
19

1

at

least

in

part,

on

the

asserted

efficacy

of

individual

2

ingredients in their formulations in achieving joint benefits.

3

For example, the packaging for Osteo Bi-Flex One Per Day,

4

Osteo Bi-Flex Double Strength, Osteo Bi-Flex Triple Strength, Osteo

5

Bi-Flex Triple Strength with Vitamin D3, Osteo Bi-Flex Energy

6

Formula, and Osteo Bi-Flex Advanced all indicate that an active

7

ingredient in their formulations is “5-LOXIN Advanced,” which,

8

Defendants represent, “contains high concentrations of AKBA, which

9

is an important Boswellic Acid for helping with joint flare-ups.”

10

See, e.g., Defs’ Mot., ECF No. 26, Exs. A-D, F.

11

assertions are true, and “[c]linical cause and effect studies have

12

been unable to confirm a cause and effect relationship between AKBA

13

supplementation and joint renewal or rejuvenation,” ECF No. 25, at

14

6-7, then it stands to reason that Defendants’ representations that

15

AKBA “help[s] with joint flare-ups” are actually false.

16

Defendants bolster their overarching claims of joint benefits by

17

referring to the importance and efficacy of a particular ingredient

18

which, if Plaintiff is to be believed, has no actual joint

19

benefits, then Defendants’ overarching claims are most likely false

20

as well. Thus, Plaintiff’s cited clinical cause and effect studies

21

regarding AKBA sufficiently provide Defendants notice of the

22

parameters of their allegedly fraudulent conduct; based on the

23

Plaintiff’s allegations, the Defendants can adequately prepare a

24

defense against the charge and not merely deny that they have done

25

anything wrong.

26

If Plaintiff’s

Because

Similarly, apparently as a basis for its overarching claims
20

1

that Osteo Bi-Flex Regular Strength “improves mobility,” “improves

2

joint comfort,” and “supports renewal of cartilage,” the packaging

3

for the regular strength product asserts that “[g]lucosamine . .

4

.

5

connective tissues,” and that “[c]hondroitin . . . helps to

6

lubricate and cushion joints while supporting the renewal of

7

cartilage.”

8

clinical cause and effect studies have found no causative link

9

between glucosamine hydrochloride supplementation and joint renewal

10

or rejuvenation, nor have clinical cause and effect studies found

11

a causative link between chondroitin supplementation and joint

12

renewal or rejuvenation, then Defendants’ assertions regarding the

13

benefits of glucosamine and chondroitin are most likely false.

14

Because the purported joint benefits of the regular strength

15

product are based on Defendants’ assertions of the efficacy of the

16

particular

17

reasonable to infer that the regular strength product’s asserted

18

overarching benefits of improved mobility, improved joint comfort,

19

and renewal of cartilage, are also false.

20

that Plaintiff’s cited clinical cause and effect studies are

21

sufficiently specific to provide Defendants notice of what is

22

allegedly

23

representations, and why those representations are alleged to be

24

false, as required by Rule 9(b).

25

////

26

////

helps

to

maintain

the

structural

integrity

See Defs’ Mot., ECF No. 26, Ex. H.

ingredients

false

or

glucosamine

misleading

21

and

about

of

joints

and

If, in fact,

chondroitin,

it

is

Thus, the court finds

the

Osteo

Bi-Flex

1
2
3

IV. CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss, ECF
No. 26, is DENIED.

4

IT IS SO ORDERED.

5

DATED:

May 3, 2012.

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