Bogart v. Glenmark Generics Inc., USA et al
Filing
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ORDER granting in part and denying in part defendant's 7 Motion to Dismiss. Any amended complaint must be filed within two weeks of the date of this Order. Signed by Judge Larry Alan Burns on 11/5/14. (kas)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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VALISHA BOGART, an individual.,
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CASE NO.14-CV-778 LAB DHB
Plaintiff,
vs.
ORDER GRANTING IN PART AND
DENYING IN PART
DEFENDANT’S MOTION TO
DISMISS
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GLENMARK GENERICS, INC., USA, a
Delaware corporation; and DOES 1
through 50, inclusive,
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Defendants.
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I.
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Introduction
Plaintiff Valisha K. Bogart alleges that she consumed defective birth control pills
placed into the stream of commerce by Defendant Glenmark Generics and, as a result,
became pregnant. Plaintiff’s complaint lists six causes of action: (1) strict products liability;
(2) negligence; (3) violation of the Consumer Legal Remedies Act (“CLRA”), Cal. Civ. Code
§§ 1750 et. seq.; (4) breach of the implied warranty of fitness for a particular purpose; (5)
breach of the implied warranty of merchantability; and (6) breach of express warranty.
Glenmark moves to dismiss all six causes of action for failure to state a claim.
II.
Legal Standard
A Rule 12(b)(6) motion to dismiss for failure to state a claim challenges the legal
sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The Court
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must accept all factual allegations as true and construe them in the light most favorable to
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Bogart. See Cedars-Sinai Med. Ctr. v. Nat’l League of Postmasters of U.S., 497 F.3d 972,
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975 (9th Cir. 2007). To defeat Glenmark’s motion to dismiss, Bogart’s factual allegations
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needn’t be detailed, but they must be sufficient to “raise a right to relief above the speculative
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level . . . .” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). That is, “some threshold
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of plausibility must be crossed at the outset” before a case can go forward. Id. at 558
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(internal quotations omitted). A claim has “facial plausibility when the plaintiff pleads factual
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content that allows the court to draw the reasonable inference that the Defendant is liable
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for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility
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standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility
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that a defendant has acted unlawfully.” Id.
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Although the Court must draw all reasonable inferences in a way that is favorable to
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Bogart, it need not “necessarily assume the truth of legal conclusions merely because they
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are cast in the form of factual allegations.” Warren v. Fox Family Worldwide, Inc., 328 F.3d
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1136, 1139 (9th Cir. 2003) (internal quotations omitted). In fact, the Court does not need to
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accept any legal conclusions as true. Iqbal, 556 U.S. at 678. A complaint does not suffice
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“if it tenders naked assertions devoid of further factual enhancement.”
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quotations omitted). Nor does it suffice if it contains a merely formulaic recitation of the
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elements of a cause of action. Twombly, 550 U.S. at 555.
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III.
Id. (internal
Discussion
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The Court will address the claims in the order that Bogart asserts them.
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A.
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Under California law, strict products liability exposes a broad range of defendants to
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liability for defective products. Liability attaches if the plaintiff establishes an actual defect
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in the product and a causal connection between defendant, the product, and plaintiff’s injury.
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See Romine v. Johnson Controls, Inc., 224 Cal. 4th 990, 1000 (2014). A defective product
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is one that differs from the manufacturer’s intended result or from other identical units of the
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same line of products. Barker v. Lull Eng'g Co., 20 Cal. 3d 413, 429 (1978).
Strict Products Liability
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Bogart alleges that Glenmark is strictly liable “for manufacturing, distributing, selling,
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and/or placing the [b]irth [c]ontrol [p]ills into the stream of commerce.” (Compl. ¶ 24.)
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Glenmark argues that her complaint fails to state a claim for strict products liability because
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it alleges the existence of a manufacturing defect by inference, asserting merely that Bogart
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was injured while using this product. To the contrary, the complaint contains greater factual
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details than Glenmark acknowledges. It specifies that the pills were packaged such that
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select blisters inside the pill box were rotated one hundred and eighty degrees within the
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card, thereby reversing the weekly tablet orientation. It alleges that these defects caused
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Bogart to take the pills out of order, making them ineffective for contraception and causing
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her harm in the form of an unintended and unwanted pregnancy. It further states that the
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birth control pills were defective when they left Glenmark’s possession. (Compl. ¶ 14, 22.)
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To survive a motion to dismiss, plaintiff’s factual allegations must raise a right to relief
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above the speculative level. See Twombly, 550 U.S. at 555.
The Court concludes that
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given the allegations, it is plausible that Glenmark may be strictly liable for a manufacturing
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defect. The motion to dismiss the strict products liability claim is DENIED.
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B.
Negligence
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The elements of a products liability claim based on negligence under California law
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are that (1) defendant designed, manufactured, or supplied the product; (2) defendant fell
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below the standard of reasonable care in designing, manufacturing, or supplying the product;
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(3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing
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plaintiff’s harm. See Judicial Council of California Civil Jury Instructions No. 1220 (2014).
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Glenmark argues that Bogart’s negligence claim is wholly dependent on her
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assumption that the product contained a manufacturing defect, and further moves for
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dismissal on the grounds that she improperly bases her negligence claim on a failure to warn
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theory. (Docket no. 7-1 at 8-9.) The Court does not agree.
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Bogart’s complaint relies on more than just a failure to warn theory. Her complaint
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also alleges that her injury was caused by Glenmark’s negligence in placing the birth control
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pills into the stream of commerce without inspecting for defects, eliminating defects, or using
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reasonable care in designing, manufacturing, packaging, and distributing the pills. (Compl.
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¶ 10, 28.) She also alleges that Glenmark did not warn consumers that the product may
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have left Glenmark’s possession unsuitable for use and that the harm was foreseeable.
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(Compl. ¶ 28, 29).
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Accepting all of the factual allegations in the complaint as true, It is plausible that a
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pill manufacturer who does not inspect its products may foreseeably cause the sort of harm
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Plaintiff alleges she suffered. This is particularly true where the underlying defect alleged -
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packaging pills in a rotated manner so they would be taken out of order - could be caught
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by a simple visual inspection, as Plaintiff alleges. (Compl. ¶ 29-30). It would be premature
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to dismiss this claim prior to adjudication on the merits. The motion to dismiss Bogart’s
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negligence claim is DENIED.
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C.
Violation of the CLRA, Cal. Civ. Code §§ 1750 et. seq
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The CLRA was enacted to protect consumers against unfair and deceptive business
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practices.
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representing that goods or services have characteristics or benefits that they do not have,
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representing that goods are of a particular standard if they are not, advertising goods or
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services with intent not to sell them as advertised, and other deceptive practices. See Cal
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Civ. Code § 1770.
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See Cal Civ. Code
§ 1760.
It generally prohibits manufacturers from
(i) Application of the CLRA to Prescription Drugs
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Glenmark claims that the CLRA does not apply to prescription pharmaceutical
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products. Glenmark argues that the body of CLRA decisions demonstrates that the statute
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is directed at everyday consumer items purchased from vendors and merchants who sell
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goods and services to consumers as a whole, whereas prescription pharmaceutical products
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are only sold to a subset of the population.
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According to Cal. Civ. Code § 1770(a), the CLRA broadly applies to any transaction
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intended to result or resulting in the sale or lease of goods or services to a consumer.
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Additionally, The CLRA must be “liberally construed and applied to promote its underlying
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purposes, which are to protect consumers against unfair and deceptive business practices.”
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See Wang v. Massey Chevrolet, 97 Cal. App. 4th 856, 869 (2002) (citing Cal. Civ. Code
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§ 1760). The CLRA defines “goods” as tangible chattels bought or leased for use primarily
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for personal, family, or household purposes. See Fairbanks v. Superior Court, 46 Cal. 4th
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56, 61 (2009); see Cal. Civ. Code § 1761.
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Bogart argues that two California authorities apply the CLRA to pharmaceutical
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products: In re Vioxx Cases, 180 Cal. App. 4th 116 (2009) and Steroid Hormone Product
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Cases, 181 Cal. App. 4th 145 (2010). Glenmark points out that both of those cases largely
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focused on class certification issues and did not explicitly examine CLRA’s application to
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pharmaceutical products. Although these cases were class actions, both opinions included
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entire sections reviewing the CLRA, including the practices deemed unlawful under the
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statute and requirements for recovery. See In re Vioxx Cases, 180 Cal. App. 4th at 128-129;
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In re Steroid Hormone Product Cases, 181 Cal. App. 4th at 155. And, while neither court
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discussed whether the CLRA covered pharmaceutical products, both explicitly applied the
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CLRA to pharmaceutical products, strongly implying that the courts found the statute
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applicable.
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The Court agrees that the CLRA is applicable to pharmaceutical products. The CLRA
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was created to protect consumers from unfair and deceptive business practices. In liberally
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construing the CLRA, as California case law requires, the Court finds that birth control pills
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are tangible chattels bought primarily for personal use. As such, birth control pills are goods
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which fall within the CLRA’s protections.
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In arguing that the CLRA does not apply to pharmaceutical products, Glenmark
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compares this case to two precedents finding that “specialized medical products” fall outside
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of the CLRA’s protections. See Kempt v. Pfizer, Inc., 835 F. Supp. 1015, 1025 (E.D. Mich.
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1993); Goldsmith v. Mentor Corp., 913 F. Supp. 56, 63 (D.N.H. 1995). Kempt involved heart
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valves while Goldsmith involved testicular prostheses. Both were found by the respective
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courts not to fit under the definition of “consumer products” under the CLRA. The courts
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reached this conclusion by reasoning that the medical devices at issue were not intended
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to be covered by the CLRA’s drafters because they were highly specialized devices, not
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because they were prescription devices. In contrast, a contract for the purchase of birth
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control pills results in the sale of goods to a consumer, a significantly less specialized
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endeavor than the attachment and use of a heart valve or prosthesis. The Court concludes
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that birth control pills are personal consumer products and not specialized medical products.
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As such, that exception does not apply to this case. Glenmark’s motion to dismiss on this
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ground is DENIED.
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(ii) CLRA’s Thirty Day Notice Requirement
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Cal. Civ. Code § 1782 provides that thirty days or more prior to the commencement
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of an action for damages under the act, the consumer shall notify the person alleged to have
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committed the violation and demand that the person correct, repair, replace, or otherwise
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rectify the goods.
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Glenmark argues that since Bogart did not comply with the thirty-day notice
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requirement, her claims under the act should be dismissed. Bogart counters that the thirty-
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day notice requirement is only applicable to claims for actual damage, whereas the prayer
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for relief under her CLRA claim requests that Glenmark be enjoined from continuing to
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engage in the alleged conduct. (Compl. ¶ 40.) The Court agrees with Bogart that the
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requirement only applies to damage claims and her complaint only requests injunctive relief
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for this cause of action. See Myers v. Sprint Spectrum, L.P. 45 Cal. 4th 634, 644 (2009).
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In any event, Glenmark did not further address this issue in its reply, thereby conceding to
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the inapplicability of the thirty-day requirement. See Walsh v. Nev. Dep't of Human Res.,
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471 F.3d 1033, 1037 (9th Cir. 2006). The Court denies Glenmark’s motion to dismiss on this
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ground.
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(iii) Plaintiff’s Claim of Unfair and Deceptive Acts under the CLRA
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Bogart claims that Glenmark violated Cal. Civ. Code §§ 1770(a)(4) and (7) by
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representing that the birth control pills: (a) had characteristics or benefits that they did not
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have; and (b) were of a particular standard and quality when they were not. (Compl. ¶ 36.)
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Both of these allegations essentially allege misrepresentation.
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The Ninth Circuit has held that under California law, CLRA claims of
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misrepresentation are grounded in fraud even if fraud is not actually alleged. See Kearns
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v. Ford Motor Co., 567 F.3d 1120, 1125-26 (9th Cir. 2009). The Federal Rules of Civil
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Procedure Rule 9(b) requires that “in alleging fraud or mistake, a party must state with
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particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b).
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Accordingly, the Court applies the heightened pleading standard of Rule 9(b) and Bogart
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must plead circumstances of the misrepresentation in terms that are specific enough to give
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Glenmark the ability to defend against the charges and not just deny wrongdoing. See
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Kearns, 567 F.3d at 1124, 1126. Plaintiff’s allegations of fraud must be accompanied by the
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“who, what, when, where and how” of the misconduct allegations, and must set forth more
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than the neutral facts necessary to identify the transaction. See Cooper v. Pickett, 137 F.3d
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616, 627 (9th Cir. 1997).
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The complaint alleges that the birth control pills were represented as having
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characteristics or benefits that they did not have and as being of a particular standard when
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they were not. (Compl. ¶ 36.) But the complaint does not make any allegations as to how
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the misrepresentations were made, where they appeared, or when they appeared. Bogart’s
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allegations are conclusory and not specific enough to satisfy Rule 9(b)’s heightened pleading
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standard.
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The court GRANTS Glenmark’s motion to dismiss Bogart’s CLRA claim.
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D.
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California Commercial Code § 2315 creates a cause of action for breach of an implied
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warranty of fitness for a particular purpose where, at the time of contracting, a seller has
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reason to know that a buyer seeks goods for a particular purpose and relies on the seller’s
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skill or judgment to select and furnish suitable goods. See In re Ferrero Litig., 794 F.Supp.2d
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1107, 1118 (S.D.Cal.2011) (citing Hauter v. Zogarts, 14 Cal.3d 104, 120 (1975)).
Breach of the Implied Warranty of Fitness for a Particular Purpose
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Glenmark argues that this claim should be dismissed on the ground that Bogart
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merely stated generic and conclusory allegations of reliance without any supporting facts.
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Bogart’s opposition did not address Glenmark’s motion to dismiss this particular claim.
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A plaintiff’s failure to respond to a party’s argument in an opposition to a motion to dismiss
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amounts to a concession that such claims should in fact be dismissed. See Walsh v. Nev.
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Dep’t of Human Res., 471 F.3d at 1037 (holding that where the plaintiff’s opposition to a
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motion to dismiss "failed to address any of the arguments presented" in the defendant’s
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motion to dismiss, "the district court had no reason to consider the contention" that the claim
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in question "could not be dismissed," and the plaintiff "effectively abandoned the claim"
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before the district court); Pers. Elec. Transports, Inc. v. Office of U.S. Tr., 313 F. App’x 51,
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52 (9th Cir. 2009) (“[T]he district court correctly opined that Appellants had waived their
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‘access to the courts’ argument for failing to raise it in their opposition to the Trustee’s motion
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to dismiss.”)
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In any event, Bogart’s arguments on this point consist of conclusory allegations
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mirroring the required elements of the breach under Cal. Com. Code § 2315. “Threadbare
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recitals of the elements of an action, supported by mere conclusory statements, do not
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suffice for stating a claim on which relief can be granted.” Iqbal, 556 U.S. at 678 (citing
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Twombly, 550 U.S. at 555).
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Bogart’s claim for breach of implied warranty does not satisfy the pleading standard,
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and for that reason the Court GRANTS Glenmark’s motion to dismiss the claim of breach
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of implied warranty of fitness for a particular purpose.
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E.
Breach of The Implied Warranty of Merchantability
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Under the California Commercial Code, a warranty that goods shall be merchantable
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is implied in a contract for their sale if the seller is a merchant with respect to goods of that
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kind. See Cal. Com. Code § 2314. For goods to be merchantable, they must at least be
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fit for the ordinary purposes for which such goods are used, be adequately packaged and
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labeled, and conform to the promises of fact made on the container, if any. See Birdsong
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v. Apple, Inc., 590 F.3d 955, 958 (9th Cir. 2009) (citing Am. Suzuki Motor Corp. v. Superior
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Court, 37 Cal.App.4th 1291, 1296, (1995)).
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In alleging breach, Bogart maintains that she bought the birth control pills from
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Glenmark; that at the time of sale, Glenmark was a merchant of birth control pills; and that
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the pills were not fit for their ordinary contraceptive purposes. (Compl. ¶ 50-52.)
She
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argues that she used and consumed the birth control pills as directed, (Compl. ¶ 15), and
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that the failure of the birth control pills to act as effective contraceptive was a substantial
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factor in causing her unintended pregnancy, (Compl. ¶ 53-54).
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Glenmark, on the other hand, argues that the very nature of prescription drugs
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themselves precludes the imposition of a warranty of fitness for ordinary purposes, and
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asserts that the implied warranty of merchantability does not apply to prescription drugs
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because they are inherently dangerous.
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Pharmaceuticals, Inc., 523 A.2d 374, 377 (Pa. Super. 1987), but that case is not binding on
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this Court and the Court is not persuaded by its reasoning. Glenmark can’t find a California
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case recognizing an exception to this warranty for inherently dangerous drugs, and this Court
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won’t create an exception. Bogart’s allegations make it is plausible that an implied warranty
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of merchantability existed and was breached.
Glenmark cites Makripodis v. Merrell-Dow
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The motion to dismiss Bogart’s warranty of merchantability claim is DENIED.
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F.
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California’s Commercial Code provides a cause of action where a seller makes an
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express affirmation of fact or promise relating to goods, the buyer relies on it as a basis for
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her decision to purchase those goods, and the goods do not conform. See Keith v.
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Buchanan, 173 Cal. App. 3d 13, 19 (1985) (citing Cal. Com. Code § 2313).
Breach of Express Warranty
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Bogart claims that Glenmark represented that the birth control pills protected her from
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unwanted pregnancies. (Compl. ¶ 56.) But a representation is not the same as an express
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promise, which is what is required here. Bogart doesn’t elaborate on any facts concerning
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Glenmark’s supposed representation or its effect on her, much less how it may have been
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breached. The federal pleading standard requires her complaint to allege further factual
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details to allow the Court to determine whether she raises a right to relief for breach of that
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warranty above the speculative level. See Twombly, 550 U.S. at 555. The Court GRANTS
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Bogart’s motion to dismiss Bogart’s claim for breach of express warranty.
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IV.
Leave to Amend
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Under Federal Rule of Civil Procedure 15(a)(2), leave to amend a pleading should be
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freely granted. The Court will therefore give Bogart a fair opportunity to amend her
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complaint to correct the identified deficiencies.
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V.
Conclusion
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Bogart’s claims for breach of implied warranty of fitness for a particular purpose,
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violation of the CLRA, and breach of express warranty are DISMISSED WITH LEAVE TO
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AMEND. Glenmark’s motion to dismiss the claims for strict products liability, negligence, and
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breach of warranty of merchantability are DENIED. Any amended complaint must be filed
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within TWO WEEKS OF THE DATE OF THIS ORDER.
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IT IS SO ORDERED.
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DATED: November 5, 2014
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HONORABLE LARRY ALAN BURNS
United States District Judge
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