Hon. Michael M. Anello, United States District Judge.
Jane Loomis, on behalf of herself and others similarly situated, ("Plaintiff") filed a putative class action complaint against Slendertone Distribution, LLC ("Defendant"), alleging five causes of action under California law: (1) violations of the Unfair Competition Law ("UCL"); (2) violations of the False Advertising Law ("FAL"); (3) violations of the Consumer Legal Remedies Act ("CLRA"); (4) breach of express warranty; and (5) breach of the implied warranty of merchantability. See Doc. No. 1 ("Compl.").
This action arises out of the sale of the Flex Belt by Defendant to Plaintiff on or about April 22, 2016. Compl. ¶ 24. The central issues arise from statements and representations made in Defendant's Flex Belt advertisements.
Plaintiff is an individual domiciled in San Diego, California and brings the action on
Defendant markets and sells the Flex Belt, an electrical muscle stimulator (EMS). Id. ¶ 3. EMS devices are considered Class II Medical Devices by the Food and Drug Administration ("FDA"). The FDA has cleared the Flex Belt as a device that "may be able to temporarily strengthen, tone or firm a muscle." Id. ¶ 3; Doc. No. 8-8 at 2. However, the FDA has "specifically disapproved such devices to assist with weight loss, contour the body, develop visible "six-pack" abs, or otherwise to replace traditional exercise." Id. ¶ 3. Moreover, the Federal Trade Commission ("FTC") "has already determined that any claims that such ab devices cause fat loss and inch loss, will give users well-defined abdominal muscles (e.g., `rock hard,' `six pack' or `washboard' abs), or that use of the ab devices is equivalent to conventional abdominal exercises, such as sit-ups or crunches, are false and misleading." Id.
Plaintiff alleges Defendant advertised that the Flex Belt would help consumers achieve the benefits of traditional exercise without traditional exercise. Plaintiff claims she relied on Flex Belt's website and Amazon.com listing before purchasing a Flex Belt and, later, replacement gel pads. Id. ¶ 3, 24. Essentially, Plaintiff alleges that Defendant's advertisements were false or misleading because Defendant advertises that using the Flex Belt "would assist in weight loss, body contouring, develop visible `six-pack' abs, and could be used effectively as a replacement for abdominal exercises." Id. ¶ 4. In addition to Defendant's website and Amazon.com listing, Plaintiff claims she also relied on information from Defendant's Facebook advertisements and television commercials. Defendant's other advertising initiatives include "celebrity endorsements, paid-advertisement articles, paid bloggers, social media ... and third-party retailers. Id. ¶ 11.
Plaintiff points to numerous quotations from Defendant's Flex Belt marketing:
Id. ¶ 20.
Doc. No. 8-5 at 6, 8, 9.
Additionally, Plaintiff's Complaint includes screenshots from Defendant's website and Amazon.com listing. Id. ¶ 21-24. Plaintiff relies upon testimonials from Flex Belt users to support her claims. See id. ¶ 21; Doc. No. 8-5 at 5. Moreover, Defendant's advertising contains several images throughout its Website and Amazon.com listing of individuals with "flat, toned, `six-pack' abdominal muscles on celebrities and models to convey that such results can be achieved through use of the Flex Belt." Compl. ¶ 23; see also id. ¶ 22; Doc. No 8-5 at 3-10; Doc. No. 8-6 at 2-5.
Defendant's website and Amazon.com listing also contain language designed to mitigate expectations of consumers using the Flex Belt:
Doc. No. 8-5 at 4, 6, 7; Doc. No. 8-6 at 5. Regardless of the somewhat mitigating statements, Plaintiff alleges Defendant's advertising falsely and misleadingly suggests Flex Belt consumers will gain the
Generally, a district court's review on a 12(b)(6) motion to dismiss is "limited to the complaint." Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001), overruled on other grounds by Galbraith v. Cnty. Of Santa Clara, 307 F.3d 1119, 1125-26 (9th Cir. 2002) (quoting Cervantes v. City of San Diego, 5 F.3d 1273, 1274 (9th Cir. 1993)). However, "a court may take judicial notice of matters of public record," id. at 689 (internal quotations omitted), and of "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading," Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by Galbraith, 307 F.3d at 1125-26; see also Fed. R. Evid. 201. "A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b); see also Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986) (citing Sears, Roebuck & Co. v. Metropolitan Engravers, Ltd., 245 F.2d 67, 70 (9th Cir. 1956)).
Defendant requests the Court to take judicial notice of a printout from the FDA's website entitled "Electronic Muscle Stimulators." See Doc. No. 8-1 at 2; Doc. No. 8-8 at 2-4. Plaintiff does not address or oppose this request. The Court finds judicial notice of these documents is proper pursuant to Federal Rule of Evidence 201(b). Tri-Union Seafoods, LLC v. Starr Surplus Lines Ins. Co., 88 F.Supp.3d 1156, 1159 (S.D. Cal. 2015) (granting plaintiff's and defendant's requests for judicial notice of two printouts from the FDA's website); In re Amgen Inc. Sec. Litig., 544 F.Supp.2d 1009, 1023 (C.D. Cal. 2008) (granting judicial notice of labels from the FDA's website because the documents are "capable of accurate and ready determination" and "not subject to reasonable dispute"); see also Interstate Nat. Gas Co. v. S. California Gas Co., 209 F.2d 380, 385 (9th Cir. 1953) ("[The court] may take judicial notice of records and reports of administrative bodies."). Therefore, the Court
Plaintiff incorporates Defendant's online advertising into her Complaint. See, e.g., Compl. ¶ 20-26. Defendant argues that "Plaintiff cherry-picks quotes from Slendertone's online advertising to create the appearance of a misleading narrative." Doc. No. 8 at 20. Defendant argues its advertisements "are neither false nor misleading when read in context." Id. Defendant attaches exhibits to its motion to give the full picture of Defendant's website and Amazon.com listing in the Complaint. See Doc. No. 8-4. However, Defendant does not request the Court to take judicial notice of these exhibits. See Doc. No. 8-1. Plaintiff does not directly address Defendant's cherry-picking argument or challenge the authenticity of Defendant's proffered exhibits. Instead, she rests on the facts pleaded in her Complaint, emphasizing "the Court `must accept as true all the factual allegations in the complaint.'" Doc. No. 13 at 20 (quoting Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993)).
Despite Defendant failing to request judicial notice, the Court has the power to grant judicial notice sua sponte.
Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018) (citing Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998), superseded by statute on other grounds as recognized in Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 681-82 (9th Cir. 2006)). The Ninth Circuit has noted that there is a "policy concern underlying the rule: Preventing plaintiffs from surviving a Rule 12(b)(6) motion by deliberately omitting references to documents upon which their claims are based." Parrino, 146 F.3d at 706; see also Khoja, 899 F.3d at 1003 ("[T]he the incorporation-by-reference doctrine is designed to prevent artful pleading by plaintiffs."). "Even if a document is not attached to a complaint, it may be incorporated by reference into a complaint if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff's claim." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); see also Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) ("The rationale of the "incorporation by reference" doctrine applies with equal force to internet pages as it does to printed material."). Incorporation-by-reference allows a court to "treat such a document as part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6)." Ritchie, 342 F.3d at 908. While a court "unlike judicial notice ... may assume an incorporated document's contents are true for purposes of a motion to dismiss under Rule 12(b)(6).... it is improper to assume the truth of an incorporated document if such assumptions only serve to dispute facts stated in a well-pleaded complaint." Khoja, 899 F.3d at 1003 (quoting Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006)).
Incorporation-by-reference is a proper vehicle to allow the Court to consider the exhibits containing printouts from Defendant's website and Amazon.com listing. Plaintiff refers and uses screenshots from both webpages to support her Complaint. See Compl. ¶ 20-26. Defendant's motion relies extensively upon the same materials. See Doc. No. 8-4. Therefore, the Court finds the printouts of Defendant's website and Amazon.com listing —as supplied by Defendant—proper subjects of incorporation-by-reference to
Similarly, incorporation-by-reference is proper for the Flex Belt warranty. See Doc. No. 8-3 at 3. Plaintiff's fourth cause of action is breach of an express warranty. Compl. ¶ 73-78. Plaintiff does not dispute the authenticity or challenge the existence of the product warranty. Importantly, because an element of breach of express warranty is "an affirmation of fact or promise or provided a description of its goods," Viggiano v. Hansen Nat. Corp., 944 F.Supp.2d 877, 893 (C.D. Cal. 2013) (quoting Rodarte v. Philip Morris, Inc., No. 03-0353FMC, 2003 WL 23341208, *7 (C.D. Cal. June 23, 2003), an actual product warranty could be the basis of the plaintiff's claim. See Tietsworth v. Sears, 720 F.Supp.2d 1123, 1131 (N.D. Cal. 2010) (finding a limited warranty subject to incorporation-by-reference when the plaintiff alleged the defendant made a representation going to the breach of express warranty cause of action). Therefore, the Court finds the Flex Belt warranty supplied by Defendant as incorporated by reference into the Complaint.
Rule 12(b)(2) allows a Defendant to move to dismiss a complaint for lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). Upon a motion to dismiss, Plaintiff carries the burden to demonstrate proper jurisdiction. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004) (citing Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990)). In opposing such a motion, a plaintiff relying solely on written materials must only make a prima facie showing that jurisdiction is appropriate. Id. (citing Sher, 911 F.2d at 1361). In assessing personal jurisdiction, the plaintiff "need only demonstrate facts that if true would support jurisdiction over the defendant." Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995). The Court resolves conflicts between the parties' affidavits in the plaintiff's favor. Schwarzenegger, 374 F.3d at 800 (citing AT & T v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996)).
There are two independent limitations on a court's power to exercise personal jurisdiction over a nonresident defendant: the applicable state personal jurisdiction rule, and constitutional principles of due process. Sher, 911 F.2d at 1361. California's jurisdictional statute is coextensive with federal due process requirements; therefore, jurisdictional inquiries under state law and federal due process standards merge into one analysis. Daimler AG v. Bauman, 571 U.S. 117, 125, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014); Rano v. Sipa Press, Inc., 987 F.2d 580, 587 (9th Cir. 1993); see also Cal. Civ. Proc. Code § 410.10. The exercise of jurisdiction over a nonresident defendant violates the protections created by the due process clause unless the defendant has "minimum contacts" with the forum state so that the exercise of jurisdiction "does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 316, 66 S.Ct. 154, 90 S.Ct. 95 (1945).
The Court proceeds by assessing whether personal jurisdiction over Defendant comports with federal due process requirements under either general or specific jurisdiction.
General jurisdiction—as applied to a corporation—arises when a foreign corporation's "affiliations with the
The place of incorporation and principal place of business are not the only means to achieve general jurisdiction for a corporation. Id. However, "[o]nly in an `exceptional case' will general jurisdiction be available anywhere else." Martinez v. Aero Caribbean, 764 F.3d 1062, 1070 (9th Cir. 2014) (quoting Daimler AG, 571 U.S. at 139 n.19, 134 S.Ct. 746). The "exceptional case" centers upon "whether that corporation's `affiliations with the State are so "continuous and systematic" as to render it essentially at home in the forum State'"— not whether the contacts are merely "continuous and systematic." Daimler AG, 571 U.S. at 138-39, 134 S.Ct. 746 (quoting Goodyear Dunlop Tires Operations, S.A., 564 U.S. at 919, 131 S.Ct. 2846) (emphasis added); see also Martinez, 764 F.3d at 1070. "The standard for general jurisdiction `is an exacting standard, as it should be, because a finding of general jurisdiction permits a defendant to be haled into court in the forum state to answer for any of its activities anywhere in the world.'" Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1224 (9th Cir. 2011) (citing Schwarzenegger, 374 F.3d at 801).
To determine whether a corporation is "essentially at home," sufficient to trigger the exceptional case, courts examine the "[l]ongevity, continuity, volume, [and] economic impact" of those contacts, as well as the defendant's "physical presence[] and integration into the state's regulatory or economic markets." See Mavrix Photo, Inc., 647 F.3d at 1224. Importantly, a general jurisdiction analysis requires "an appraisal of a corporation's activities in their entirety, nationwide and worldwide. A corporation that operates in many places can scarcely be deemed at home in all of them. Otherwise, `at home' would be synonymous with `doing business' tests framed before specific jurisdiction evolved in the United States." Daimler AG, 571 U.S. at 139 n.20, 134 S.Ct. 746.
The Ninth Circuit found a corporation not subject to general jurisdiction in California where it had its principal place of business outside the forum state; had no office, staff, or physical presence in the forum state; and was not licensed within the forum state. Martinez, 764 F.3d at 1070. Further, the Ninth Circuit did not find general jurisdiction in California proper where a defendant indirectly made purchases of items imported by California entities, had a California choice-of-law provision with some of his sales contracts, used a California direct-mail marketing company, hired a California-incorporated sales training company for consulting, and had a "website accessible by anyone capable of using the Internet, including people living in California." Schwarzenegger, 374 F.3d at 801; see also Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 418, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) ("[M]ere purchases, even if occurring at regular intervals, are not enough to warrant a State's assertion of in personam jurisdiction over a nonresident corporation in a cause of action not related to those purchase transactions.").
Here, Plaintiff claims the Court has general jurisdiction over Defendant. Doc. No. 13 at 12-14. Defendant counters that it is not "essentially at home" for the
Given the lack of the paradigm basis for general jurisdiction, Plaintiff continues to carry the burden to demonstrate—under an "exacting standard" only found in exceptional cases—whether Defendant "engages in a substantial, continuous, and systematic course of business" to render it "essentially at home" in California. Daimler AG, 571 U.S. at 139, 134 S.Ct. 746. Plaintiff does not meet her burden. As a preliminary matter, Plaintiff overlooks Supreme Court precedent emphasizing the "essentially at home" portion of the general jurisdiction analysis.
Plaintiff argues that general jurisdiction is satisfied because "Slendertone sells, solicits, and engages in business in California, serving the state's market, has designated an agent for service of process in California, and is registered with the California Secretary of State. Doc. No. 13 at 13; see also Doc. No. 13-1 at 2; Doc. No 13-2 at 2; Doc. No 13-3 at 2. Plaintiff also highlights that Defendant uses "television commercials," "a website, celebrity endorsements, paid-advertisement articles, paid bloggers, social media (including Facebook)[,] and third party retailers." Compl. ¶ 11, 24. Supplying supporting exhibits from advertisements on Defendant's website, Plaintiff argues Defendant specifically targets California residents:
Doc. No. 13 at 13 (citations omitted) (emphasis omitted). The fact that a few people have the product or advocate the product from California does not meet the exacting standard that makes Defendant "essentially at home" in California. See Helicopteros Nacionales de Colombia, S.A., 466 U.S. at 418, 104 S.Ct. 1868 (holding that regular purchases are insufficient to trigger general jurisdiction). Even though a designated service for process agent and registration with the California Secretary of State are factors indicating a presence within California, they still do not suggest that Defendant is essentially "at home" in California.
Therefore, Plaintiff has not carried her burden to prove the Court has general jurisdiction over Defendant. Given the facts that Defendant is neither incorporated in nor has its principal place of business in California, Plaintiff has not provided the Court with sufficient evidence to meet the exacting standard of being "essentially at home" in California.
"Where general jurisdiction is inappropriate, a court may still exercise specific jurisdiction if the defendant has sufficient contacts with the forum state in relation to the cause[s] of action." Sher, 911 F.2d at 1361 (citing Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1286 (9th Cir. 1977)). Specific jurisdiction is analyzed using a three-prong test: "(1) the non-resident defendant must purposefully direct its activities towards, or consummate some transaction with, the forum or a resident thereof, or perform some act by which it purposefully avails itself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or results from the defendant's forum-related activities; and (3) the exercise of jurisdiction must be reasonable." Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987). The party invoking the Court's jurisdiction must meet each of these conditions. See Insurance Co. of N. Am. v. Marina Salina Cruz, 649 F.2d 1266, 1270 (9th Cir. 1981).
A Plaintiff may satisfy the first prong in the analysis by demonstrating that the defendant "purposefully directed" its conduct toward the forum state, or "purposefully availed" itself of the privilege of doing business in the forum. Schwarzenegger, 374 F.3d at 802. Courts typically utilize the "purposefully directed" standard in tort cases, whereas the purposeful availment test is most useful for contract-based claims. Id. To establish the defendant "purposefully directed" its conduct toward the forum, the plaintiff usually produces "evidence of the defendant's actions outside the forum state that are directed at the forum, such as the distribution in the forum state of goods originating elsewhere." Id. at 803. Thus, the court applies "an `effects' test that focuses on the forum in which the defendant's actions were felt, whether or not the actions themselves occurred within the forum." College-Source, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1077 (9th Cir. 2011) (quoting Yahoo! Inc. v. La Ligue Contre Le Racisme, 433 F.3d 1199, 1206 (9th Cir. 2006) (en banc)). Derived from Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), the "effects test" "requires that `the defendant allegedly must have (1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state.'" College-Source, Inc., 653 F.3d at 1077 (quoting Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1128 (9th Cir. 2010)); see also Axiom Foods, Inc. v. Acerchem Int'l, Inc., 874 F.3d 1064, 1069 (9th Cir. 2017).
Under this requirement, courts "construe `intent' in the context of the `intentional act' test as referring to an intent to perform an actual, physical act in the real world, rather than an intent to accomplish a result or consequence of that act." Schwarzenegger, 374 F.3d at 806. Plaintiff alleges that Defendant sells its product worldwide—including to residents of California—through third party retailers with false and misleading claims. Compl. ¶ 10, 11, 24; Doc. No. 13 at 16. Because Defendants developed, advertised, and sold the product, the Court finds Plaintiff has carried her burden to show an intentional act by Defendant.
The parties' purposeful direction analysis predominately focuses on the express aiming requirement. Defendant argues "something more" is necessary when a passive website is employed to establish specific jurisdiction and contends Plaintiff has not shown there is "something more." Doc. No. 8 at 16. Defendant emphasizes in its reply brief that merely shipping a product into the forum state is an insufficient basis for specific jurisdiction. See Doc. No. 15 at 3. Plaintiff responds that she has shown something more: interaction with Defendant's website, worldwide sales by Defendant, targeting California through Facebook and television advertisements, "consummation [of] a deal" between the parties, and expectation that the product would enter into California through the stream of commerce. Doc. No. 13 at 16; see also Compl. ¶ 11, 24.
Although "[t]he exact form of our analysis varies from case to case and `depends, to a significant degree, on the specific type of tort or other wrongful conduct at issue,'" Picot v. Weston, 780 F.3d 1206, 1214 (9th Cir. 2015) (quoting Schwarzenegger, 374 F.3d at 807), a plaintiff must still prove that "the `effects' caused by the defendants' [conduct]—i.e., the injury to the plaintiff[] ... —connected the defendants' conduct to California, not just to a plaintiff who lived there." Walden v. Fiore, 571 U.S. 277, 288, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014). The express aim of the defendant must pertain to the forum state—"not the defendant's contacts with a resident of the forum." Picot, 780 F.3d at 1214. "A plaintiff does not show express aiming by alleging injuries that are `entirely personal to him and would follow him wherever he might choose to live or travel' and `not tethered to California in any meaningful way.'" Graco Minnesota Inc. v. PF Brands, Inc., No. 18-CV-1690-WQH-AGS, 2019 WL 1746580, at *4 (S.D. Cal. Apr. 17, 2019) (quoting Picot, 780 F.3d at 1215).
In assessing specific jurisdiction through Internet conduct, "the common thread ... is that `the likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet.'" Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 419 (9th Cir. 1997) (quoting Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119, 1124 (W.D. Pa. 1997)). Courts have adopted a sliding scale when assessing whether operating a website can give rise to sufficient minimum contacts within the forum state:
j2 Cloud Servs., Inc. v. Fax87, No. 13-05353 DDP (AJWX), 2017 WL 1535083, at *6 (C.D. Cal. Apr. 27, 2017) (quoting American Auto. Ass'n, Inc. v. Darba Enterprises Inc., No. C 09-510 SI, 2009 WL 1066506, *4 (N.D. Cal. Apr. 21, 2009)); see also Boschetto v. Hansing, 539 F.3d 1011, 1017 (9th Cir. 2008) (holding that the sale of one item over eBay, where eBay was not used to conduct general business nor were there regular sales in California or elsewhere, was insufficient to form a "substantial connection to California," but also noting that there could be personal jurisdiction in circumstances where eBay was used to conduct regular business). Internet advertisements alone are insufficient "to subject the advertiser to jurisdiction in the plaintiff's home state." Cybersell, Inc., 130 F.3d 414 at 418; see also Mavrix Photo, Inc., 647 F.3d at 1229 ("[M]aintenance of a passive website alone cannot satisfy the express aiming prong."); Matus v. Premium Nutraceuticals, LLC, 715 F. App'x 662, 663 (9th Cir. 2018) (holding in an unpublished decision that there was no specific jurisdiction regarding false advertising committed by Defendant in Georgia placed on its website, which "was a global, universal publication without any express aiming at the California market," and Plaintiff flailed to show "something more"). Instead, "something more" is necessary "to subject the advertiser to jurisdiction in the plaintiff's home state." Cybersell, Inc., 130 F.3d 414 at 418.
Courts have looked at several factors to assess whether a defendant has done "something more": "the interactivity of the defendant's website, the geographic scope of the defendant's commercial ambitions, and whether the defendant `individually targeted' a plaintiff known to be a forum resident." Mavrix Photo, Inc., 647 F.3d at 1229 (citations omitted). In Graco Minnesota Inc., the district court held in a trademark infringement case that there was no specific jurisdiction in California where a defendant sold products on its website and third-party websites; a defendant shipped a product to California; a defendant stated he never had been to California in a business capacity, did not advertise in California, did not have offices or employees in California, and had low number of overall sales to California; the defendant entity was not registered with the California Secretary of State; defendants made sales to California customers; defendants did not target a "California-specific market or industry"; and "[t]he record [did] not show that California [was] the "focal point" of both the infringement claims and the alleged harm." 2019 WL 1746580, at *5-6. However, in Lindora, LLC, the district court held the "express aiming" prong was satisfied because defendant "exploit[ed] an important consumer base for commercial gain" by selling more product in California than in any other state; having more Associates in California than any other state; holding trainings and conferences in California; having several California-residing Associates as success stories on its website; having a California-specific webpage for California consumers; and receiving a cease-and desist letter from plaintiff's counsel in California, which put Defendant on notice sufficient to "turn what might otherwise have been general economic activity into `individualized targeting.'" Lindora, LLC v. Isagenix Int'l, LLC, 198 F.Supp.3d 1127, 1139 (S.D. Cal. 2016).
Here, Plaintiff has shown that the express aim of Defendant was toward California —not only Plaintiff—through maintaining an interactive website and taking
Even if Defendant's website alone were insufficient to demonstrate express aiming, there is "something more." First, Defendant has a designated agent for service of process and is registered with the California Secretary of State. Doc. No. 13 at 5; Doc. No. 13-2 at 2; Doc. No. 13-3 at 2. Second, Defendant has directly targeted California with television commercials directed to Plaintiff's California home and advertisements on Defendant's own website: "We put The Flex Belt® in the hands of the best Trainers in Los Angeles," and "Ellen K from the Ryan Seacrest Show uses The Flex Belt®-#1 Female DJ in Los Angeles." Compl. ¶ 24; Doc. No. 8-5 at 7; Doc. No. 13 at 13. By placing Flex Belt in the hands of California-specific individuals, Defendant has targeted a California fitness community to help advertise its product and thus went beyond merely making a connection between Defendant and Plaintiff. See Walden, 571 U.S. at 288, 134 S.Ct. 1115; Picot, 780 F.3d at 1214. Therefore, under the totality of the circumstances and regardless of whether Defendant specifically targeted Plaintiff or knew Plaintiff to be a California resident, Defendant operated an interactive, commercial website that expressly targeted California through capitalizing on its influential fitness community. Defendant also maintains ties to California through having a designated agent for service of process and registration with the California Secretary of State.
The foreseeable harm element requires that a defendant "caus[es] harm that the defendant knows is likely to be suffered in the forum state.'" CollegeSource, Inc., 653 F.3d at 1077 (quoting Brayton Purcell LLP, 606 F.3d at 1128); see also Axiom Foods, Inc., 874 F.3d at 1069. "The touchstone of this requirement is not the magnitude of the harm, but rather its foreseeability." Lindora, LLC, 198 F. Supp. 3d at 1141 (citing Yahoo! Inc., 433 F.3d at 1207).
Here, Plaintiff alleges Defendant targeted California and caused harm through selling the falsely advertised Flex Belt. Compl. ¶ 14-16. The Court finds it foreseeable that Defendant's website and advertising that emphasized California-based fitness influencers would cause harm to California-domiciled Plaintiff if those advertisements and representations contained false or misleading information. Thus, Plaintiff has sufficiently alleged Defendant caused her a foreseeable harm.
In sum, Plaintiff's allegations are sufficient to satisfy all three parts of the purposeful direction's effects test.
The second prong in the analysis requires that the claim arise out of or result from the defendant's forum-related activities. A claim arises out of a defendant's conduct if the claim would not have arisen "but for" the defendant's forum-related
Defendant argues Plaintiff's claims originate from online activities Defendant generally directed toward the entire world. Doc. No. 8 at 17. It adds that "[i]f Slendertone can be haled into California merely on the basis of its universally accessible online material, then it could be haled into court in every state, and respectively, every online advertiser worldwide could be haled into court in California." Id. Plaintiff responds that Defendant ignores the source of her alleged injury:
Doc. No. 13 at 16-17.
Here, Plaintiff's claims arise out of her contacts with California. But for Defendant's alleged false and misleading statements as to the Flex Belt and associated contacts with California, see supra, the claim would not have arisen. As to Defendant's fear of being haled into every state, Defendant overlooks what makes its California contacts distinct from its contacts with other states—such as Defendant claiming on its own website that it has placed the Flex Belt "in the hands of some of [the] best Trainers in Los Angeles. These are people that are in peak physical shape and understand how to work their abs. Our goal was to have them [] give us their honest first impression of what they thought about The Flex Belt®." Doc. No. 8-5 at 7. Therefore, Plaintiff has satisfied the second prong of specific jurisdiction.
If the plaintiff satisfies the first two prongs, the defendant bears the burden of overcoming a presumption that jurisdiction is reasonable by presenting a compelling case that specific jurisdiction would be unreasonable. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Haisten v. Grass Valley Medical Reimbursement Fund, Ltd., 784 F.2d 1392, 1397 (9th Cir. 1986). Seven factors are considered in assessing whether the exercise of jurisdiction over a nonresident defendant is reasonable: (1) the extent of the defendant's purposeful interjection into the forum state's affairs; (2) the burden on the defendant of defending in the forum; (3) conflicts of law between the forum state and the defendant's home jurisdiction; (4) the forum state's interest in adjudicating the dispute; (5) the most efficient judicial resolution of the dispute; (6) the plaintiff's interest in convenient and effective relief; and (7) the existence of an alternative forum. Caruth v. International Psychoanalytical Ass'n, 59 F.3d 126, 128 (9th Cir. 1995).
Here, Plaintiff contends that the third prong also supports the Court having personal jurisdiction over Defendant. Doc. No. 13 at 17. Plaintiff argues Defendant fails to carry its burden under this prong because it has not even addressed it and fails to explain why jurisdiction would be unreasonable. Id. Indeed, Defendant has not directly addressed this prong and thus fails to meet its burden to prove the unreasonableness of jurisdiction.
Plaintiff has made a prima facie showing that Defendant purposefully directed its
A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). However, plaintiffs must also plead "enough facts to state a claim to relief that is plausible on its face." Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The plausibility standard demands more than a formulaic recitation of the elements of a cause of action, or naked assertions devoid of further factual enhancement. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Instead, the complaint "must contain allegations of underlying facts sufficient to give fair notice and to enable the opposing party to defend itself effectively." Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
In reviewing a motion to dismiss under Rule 12(b)(6), courts must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The court need not take legal conclusions as true merely because they are cast in the form of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). Similarly, "conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss." Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). In determining the propriety of a Rule 12(b)(6) dismissal, courts generally may not look beyond the complaint for additional facts. Ritchie, 342 F.3d at 908. "A court may, however, consider certain materials—documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice—without converting the motion to dismiss into a motion for summary judgment." Id.; see also Lee, 250 F.3d at 688. "However, [courts] are not required to accept as true conclusory allegations which are contradicted by documents referred to in the complaint." Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998). Where dismissal is appropriate, a court should grant leave to amend unless the plaintiff could not possibly cure the defects in the pleading. Knappenberger v. City of Phoenix, 566 F.3d 936, 942 (9th Cir. 2009).
Additionally, allegations of fraud or mistake require the pleading party to "state with particularity the circumstances constituting fraud or mistake." Fed. R. Civ. P. 9(b). The context surrounding the fraud must "be `specific enough to give defendants notice of the particular misconduct ... so that they can defend against the charge and not just deny that they have done anything wrong.'" Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (quoting Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001)). "`Averments of fraud must be accompanied by "the who, what, when, where, and how" of the misconduct charged.' A party alleging fraud must `set forth more than the neutral facts necessary
As a preliminary matter, Defendant argues "Plaintiff's claims are preempted because they are based in part on the theory that Slendertone's representations regarding the Flexbelt violate the United States Federal Food, Drug, and Cosmetic Act (`FDCA')." Doc. No. 8 at 24. Defendant asserts that Plaintiff's claims are impliedly preempted "[t]o the extent Plaintiff is suggesting that the FDA should not have cleared the Flex Belt, or that the statement that the Flex Belt is effective `for Toning, Firming and Strengthening the stomach muscles' is false or misleading despite the fact that the FDA has cleared the Flex Belt for precisely such purposes." Id. Defendant emphasizes that "Plaintiff's UCL cause of action is explicitly premised, inter alia, on an alleged violation of the FDCA." Id. Plaintiff counters that Defendant's argument is moot because she does not allege that the FDA should have not cleared the Flex Belt or that Defendant's FDA-cleared language is false or misleading. Doc. No. 13 at 17.
The Supremacy Clause of the United States Constitution grants Congress preemption power over state laws when Congress acts pursuant to one of its enumerated powers. US. Const. Art. VI cl. 2; Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000) ("A fundamental principle of the Constitution is that Congress has the power to preempt state law."); Gibbons v. Ogden, 22 U.S. 1, 211, 9 Wheat. 1, 6 S.Ct. 23 (1824) ("In every such case, the act of Congress, or the treaty, is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it."). However, state statutes legislating traditional state police powers are presumed to not be preempted by federal law "unless that was the clear and manifest purpose of Congress." United States v. Locke, 529 U.S. 89, 108, 120 S.Ct. 1135, 146 L.Ed.2d 69, (2000) (citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 S.Ct. 1447 (1947)). "Parties seeking to invalidate a state law based on preemption `bear the considerable burden of overcoming "the starting presumption that Congress does not intend to supplant state law."'" Stengel v. Medtronic Inc., 704 F.3d 1224, 1227 (9th Cir. 2013) (en banc) (citing De Buono v. NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 806, 814, 117 S.Ct. 1747, 138 L.Ed.2d 21 (1997)). "Federal preemption is an affirmative defense upon which the defendants bear the burden of proof." Hesano v. Iovate Health Scis., Inc., No. 13CV1960-WQH-JMA, 2014 WL 197719, at *5 (S.D. Cal. Jan. 15, 2014) (quoting Bruesewitz v. Wyeth LLC, 562 U.S. 223, 251 n.2, 131 S.Ct. 1068, 179 L.Ed.2d 1 (2011)).
State statutes may be preempted through either express or implied preemption. See Crosby, 530 U.S. 363, 372, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000). Implied preemption—which Defendant here claims to be at issue—arises (1) "[w]hen Congress intends federal law to `occupy the field,'" or (2) "to the extent of any conflict with a federal statute." Id. (citations omitted). In terms of the latter conflict-implied preemption, there are again two subvarieties: (a) direct conflict preemption "where it is impossible for a private party to comply with both state and federal law"; and (b) obstacle conflict preemption where "under the circumstances of [a] particular case, [the challenged
"[T]he rule that emerges from cases discussing the FDCA's preemptive force is as follows[:] To avoid express preemption under Section 343-1(a), the plaintiff must be suing for conduct that violates the FDCA. However, the plaintiff must not be suing solely because the conduct violates the FDCA, else his claim would be impliedly preempted under [21 U.S.C. §] 337(a)." Hesano, 2014 WL 197719, at *6-7 (S.D. Cal. Jan. 15, 2014) (quoting Trazo v. Nestle USA, Inc., No. 5:12-CV-2272 PSG, 2013 WL 4083218, at *5 (N.D. Cal. Aug. 9, 2013)); see also Perez v. Nidek Co., 711 F.3d 1109, 1120 (9th Cir. 2013) (originating the rule in Hesano and Trazo). "As for the implied preemption provision [i.e., 21 U.S.C. § 337(a)], the plain language prohibits private enforcement of the FDCA, but does not apply this ban to parallel state statutory schemes. The FDCA therefore does not preclude states from adopting their own parallel laws and adopting a different mechanism for enforcing those laws." Hesano, 2014 WL 197719, at *7 (quoting Trazo, 2013 WL 4083218, at *6).
However, parallel state "consumer protection laws, such as the UCL, FAL, and CLRA, are nonetheless preempted if they seek to impose requirements that contravene the requirements set forth by federal law." In re Ferrero Litig., 794 F.Supp.2d 1107, 1113 (S.D. Cal. 2011); see also Stengel, 704 F.3d at 1228 ("[T]he [Medical Device Amendments to the FDCA] does not preempt a state-law claim for violating a state-law duty that parallels a federal-law duty under the MDA"); Hendricks v. StarKist Co., 30 F.Supp.3d 917, 928 (N.D. Cal. 2014) ("In other words, state law claims are not impliedly preempted `insofar as the state-law duty parallels a federal-law duty.'"). Nevertheless, "district courts have routinely rejected arguments that state-law UCL, FAL, and CLRA food-labeling claims and related claims under the Sherman Law are impliedly preempted under § 337(a) and Buckman." Sandoval v. PharmaCare US, Inc., 145 F.Supp.3d 986, 995 (S.D. Cal. 2015) (concluding that the plaintiff's state Sherman Law, UCL, FAL, and CLRA claims regarding an over-the-counter sexual performance drug were not impliedly preempted).
Here, Defendant argues
Doc. No. 8 at 24 (emphasis added). However, Plaintiff's allegations do not address whether the FDA should have cleared the Flex Belt or whether the specific FDA-cleared statement is misleading. See Compl. ¶ 2 ("Slendertone's advertising falsely conveys that use of its Flex Belt will lead to weight loss by `getting rid of belly fat,' will contour the body, provide visible `six pack' abs, and is a total replacement for traditional abdominal exercise."); Compl. ¶ 3 ("[The] FDA has only approved devices such as the Flex Belt to `temporarily strengthen, tone or firm a muscle'
Plaintiff's allegations are also distinct from the cases cited by Defendant. Buckman does not apply because the alleged false representations triggering preemption involved statements made to the FDA itself regarding Class III medical devices, whereas Plaintiff here alleges false representations made to consumers regarding Class II medical devices. See Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341, 343, 121 S.Ct. 1012, 148 L.Ed.2d 854 (2001). PhotoMedes is similarly distinguishable because Plaintiff is not attempting to circumvent the FDA's enforcement authority. Plaintiff does not bring a Lanham Act claim, and she does not address whether a subsequent, similar medical product requires FDA approval under the FDCA's 510(k) clearance process. PhotoMedex, Inc. v. Irwin, 601 F.3d 919, 928 (9th Cir. 2010).
In sum, the Court finds Plaintiff's California-based claims not preempted. The Court proceeds to the merits of the Rule 12(b)(6) motion and the plausibility of Plaintiff's claims.
California Business & Professions Code § 17200 "establishes three varieties of unfair competition—acts or practices which are unlawful, or unfair, or fraudulent." Cel-Tech Commc'ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal.4th 163, 83 Cal.Rptr.2d 548, 973 P.2d 527, 540 (1999) (internal quotations omitted). "Because the statute is written in the disjunctive, it is violated where a defendant's act or practice violates any of the foregoing prongs." Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1168 (9th Cir. 2012).
Plaintiff alleges Defendant violated the UCL under all three prongs. See Compl. ¶ 45-58. Defendant argues that Plaintiff lacks standing to pursue injunctive and restitutionary relief, Plaintiff fails to plead her claim with particularity, and Plaintiff fails to plead sufficient facts to support her claim because Defendant's advertising is not misleading. See Doc. No. 8 at 17, 19-20, 21, 24, 26.
As a preliminary matter, Defendant argues Plaintiff's UCL claim fails as a matter of law because remedies for a UCL violation are limited to injunctive and restitutionary relief and, here, none are available to Plaintiff. Doc. No. 8 at 26-29. Article III standing requires a plaintiff to demonstrate three elements: (1) plaintiff must have "suffered an `injury in fact'"; (2) "there must be a causal connection between the injury and the conduct complained of" and; (3) it must be "likely," as opposed to merely "speculative," that the injury will be redressed by a favorable decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotations and citations omitted).
Defendant argues Plaintiff lacks standing to claim injunctive relief because there is no threat of repeated injury. Doc. No. 8 at 26-28. Plaintiff responds that she pleaded sufficient facts support her entitlement to injunctive relief. Doc. No. 13 at 24-26.
A plaintiff seeking injunctive relief must prove (1) he or she "has suffered or is threatened with a `concrete and particularized' legal harm ... coupled with `a sufficient likelihood that he will again be wronged in a similar way,'" and (2) "a real and immediate threat of repeated injury." Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (citations
Plaintiff alleges that she
Compl. ¶ 32. Plaintiff adds that she has no means of knowing whether the FDA approves a medical device that yields the benefits "she originally thought she was obtaining from the Flex Belt." Id. ¶ 32. If the technology were developed that provided her originally sought benefits without the false or misleading statements, and she "was assured that such advertising was not false or misleading because Slendertone were enjoined from engaging in false advertising and she knew she could safely rely on such claims, she would purchase an EMS device from Slendertone in the future." Id. ¶ 33.
These allegations are insufficient to state a plausible claim for injunctive relief. The Davidson court held the plaintiff bringing UCL, FAL, and CLRA causes of action had standing to pursue injunctive relief where she adequately alleged an imminent or actual threat of future harm because the plaintiff
Davidson, 889 F.3d at 970-71 (recognizing this conclusion was a "close question"). Here, Plaintiff only "would consider" buying an "EMS device"—lacking the specificity in Davidson where the plaintiff there "continu[ed] to desire" the specific product manufactured by defendant. Compare Compl. ¶ 32, with Davidson, 889 F.3d at 970-71. Further, Plaintiff's own allegations that "EMS devices cannot cause or even assist in the loss of weight, inches, or fat from the human body," Compl. ¶ 18, appear to defeat her assertion that she would purchase an EMS device from Defendant if the technology becomes available to permit the fat-loss replacement for exercise benefits, Compl. ¶ 32. Given the vague nature of her allegations regarding purchasing an EMS device in the future and the speculative nature of EMS device's ability to achieve weight loss, Plaintiff's conflicting allegations do not meet the Article III standing requirement of "real and immediate threat of repeated injury." Bates, 511 F.3d at 985; see also Lujan, 504 U.S. at 560, 112 S.Ct. 2130. Here, Plaintiff's allegations are conjectural as presently pleaded—even under the Ninth Circuit's lax standing requirements for UCL claims. Therefore, the Court finds Plaintiff lacks standing to pursue injunctive relief. However, the Court grants Plaintiff leave to amend her claim for injunctive relief.
Defendant argues Plaintiff lacks standing to claim restitutionary relief because Plaintiff never paid Defendant. Doc. No. 8 at 28-29. Plaintiff responds that restitution is still proper even when payment is made indirectly to Defendant. Doc. No. 13 at 25-26.
Restitution is the "return [of] money obtained through an unfair business practice to those persons in interest from whom the property was taken, that is, to persons who had an ownership interest in the property or those claiming through that person." Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.4th 1134, 1140, 131 Cal.Rptr.2d 29, 63 P.3d 937 (2003) (citation omitted).
Johnson v. GMRI, Inc., No. CVF 07-0283 LJODLB, 2007 WL 2009808, at *3 (E.D. Cal. July 6, 2007) (first quoting Walnut Creek Manor v. Fair Employment & Hous. Com., 54 Cal.3d 245, 284 Cal.Rptr. 718, 814 P.2d 704, 714 (1991) and then quoting Colgan v. Leatherman Tool Grp., Inc., 135 Cal.App.4th 663, 38 Cal.Rptr.3d 36, 61 (2006)) (emphasis omitted).
Plaintiff alleges she bought the Flex Belt through Amazon.com. Compl. ¶ 24. Defendant relies on Korea Supply Co. to argue restitution can only be recovered for funds actually paid to Defendant. Doc. No. 13 at 28. In Korea Supply Co., the California Supreme Court addressed the issue "whether disgorgement of profits allegedly obtained by means of an unfair business practice is an authorized remedy under the UCL where these profits are neither money
Shersher v. Superior Court, 154 Cal.App.4th 1491, 65 Cal.Rptr.3d 634, 638 (2007) (quoting Korea Supply Co., 29 Cal. 4th at 1140, 131 Cal.Rptr.2d 29, 63 P.3d 937). In reaching its holding, the California Supreme Court noted that the plaintiff did not seek return of money or property that it once possessed and any recovery from the defendant "would not be restitutionary as it would not replace any money or property that defendants took directly from plaintiff." Korea Supply Co., 29 Cal. 4th at 1149, 131 Cal.Rptr.2d 29, 63 P.3d 937.
Defendant overstates Korea Supply Co.'s holding. The California Court of Appeal has noted that "in appropriate circumstances, the plaintiff in a UCL action may obtain restitution from a defendant with whom the plaintiff did not deal directly." Shersher, 65 Cal. Rptr. 3d at 640 (holding that the plaintiff had a valid UCL claim against the defendant-manufacturer despite purchasing the product at issue from a third-party retailer and noting further that the UCL is to be interpreted broadly); see also Cabebe v. Nissan of N. Am., Inc., No. 18-CV-00144-WHO, 2018 WL 5617732, at *5 (N.D. Cal. Oct. 26, 2018) ("In Shersher v. Superior Court, the California Court of Appeal held that Korea Supply does not limit UCL restitution claims to direct purchases as a matter of law."); Hirsch v. Bank of Am., 107 Cal.App.4th 708, 132 Cal.Rptr.2d 220, 229 (2003) ("Appellants have stated a valid cause of action for unjust enrichment based on Banks' unjustified charging and retention of excessive fees which the title companies passed through to them.").
Plaintiff alleges that Defendant received unjust enrichment of money through "the sale of the Flex Belt and replacement gel pads." Compl. ¶ 58; see also Cabebe, 2018 WL 5617732, at *6 (denying defendant's motion to dismiss where the plaintiff alleged that Defendant "was unjustly enriched as a result of its allegedly unlawful business practices"). By stating that Defendant unjustly benefited by its UCL violations, even though those funds were received indirectly, Plaintiff has provided sufficient underlying facts to sustain allegations in a Rule 12(b)(6) challenge. Therefore, the Court finds Plaintiff has standing to pursue restitutionary relief.
Rule 9(b)'s heightened pleading standard applies to UCL, FAL, and CLRA causes of actions because they "are `grounded in fraud' or `sound in fraud.'" In re Apple & AT & T iPad Unlimited Data Plan Litig., 802 F.Supp.2d 1070, 1075
Plaintiff alleges that on April 22, 2016 (the "when"), Plaintiff (the "who") purchased a Flex Belt—and later replacement gel pads—through Defendant's Amazon.com listing (the "where"). Compl. ¶ 24. Plaintiff asserts that Defendant misled customers through "false and misleading promises and affirmations contained on the Amazon page" (the "what"). Id. Plaintiff expands on the "what" by detailing that Defendant's advertisements suggesting weight loss and attainment of six-pack abdominal muscles through using the Flex Belt are false or misleading because "while an EMS device may be able to temporarily strengthen, tone or firm a muscle, no EMS devices have been cleared at this time for weight loss, girth reduction, or for obtaining `rock hard' abs." Id. ¶ 13, 15, 16, 24. Plaintiff alleges she relied on Defendant's claims that using the Flex Belt would "result in weight loss, body contouring, well-defined abdominal muscles (e.g. `six-pack' abs), and that it could replace traditional exercise to result in improved health, fitness, and body shape" (the "how"). Id. ¶ 24. Believing that the Flex Belt would result in weight loss and six-pack abs and relying on Defendant's advertisements, Plaintiff purchased the Flex Belt and replacement gel pads. Id.
Defendant argues that Plaintiff fails to allege that the false or misleading representations were online at the time she purchased the Flex Belt in 2016. Defendant further asserts that Plaintiff fails to allege when the representations appeared online. See Doc. No. 8 at 18. Defendant also contends that Plaintiff fails to allege which specific advertisements she relied upon in addition to where the representations were published and who published them. Id.
The Court is not persuaded by Defendant's argument. Plaintiff "set[s] forth more than the neutral facts necessary to identify the transaction"; indeed, she "set[s] forth what is false or misleading about a statement, and why it is false." Vess, 317 F.3d at 1106. Plaintiff provides statements that it claims are misleading, Compl. ¶ 20-23; the reason why they are misleading in light of FDA authority, id. ¶13; and the location of the statements on Defendant's website and Amazon.com listing —both of which Plaintiff relied upon, id. ¶14. As to the timing, the Court finds it sufficient that Plaintiff alleges she purchased the Flex Belt on or about April 22, 2019 and, in deciding to purchase the Flex Belt, relied upon Defendant's representations. See Safransky v. Fossil Grp., Inc., No. 17CV1865-MMA (NLS), 2018 WL 1726620, at *10 (S.D. Cal. Apr. 9, 2018) (illustrating that the "when" is satisfied where the plaintiff alleged the date of the purchase and that the plaintiff noticed the representation at issue before the purchase); Zeiger v. WellPet LLC, 304 F.Supp.3d 837, 849 (N.D. Cal. 2018); Compl. ¶ 24.
Accordingly, Plaintiff pleads her UCL, FAL, and CLRA causes of action with sufficient particularity to place Defendant on notice of the circumstances constituting the alleged fraud.
Under the UCL's fraudulent prong, a plaintiff must "show deception to some members of the public ... [or] allege that members of the public are likely to be deceived." Herrejon v. Ocwen Loan Servicing, LLC, 980 F.Supp.2d 1186, 1207 (E.D. Cal. 2013) (internal quotations and citations omitted). Fraudulent conduct must be pleaded with particularity. See Kearns, 567 F.3d at 1127 (noting that Rule 9(b) applies to claims in federal court under the UCL). Deceptive advertising will usually be a question of fact not appropriate for decision on demurrer. Id. But see Freeman v. Time, Inc., 68 F.3d 285, 289-90 (9th Cir. 1995).
California's FAL broadly proscribes "untrue or misleading statements in advertising." Anunziato v. eMachines, Inc., 402 F.Supp.2d 1133, 1137 (C.D. Cal. 2005) (internal quotation marks omitted). "The FAL prohibits unfair, deceptive, untrue, or misleading advertising." Ebner v. Fresh, Inc., 838 F.3d 958, 967 n.2 (9th Cir. 2016) (emphasis omitted). "Any violation of the false advertising law" necessarily violates the UCL. Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008) (internal quotation marks omitted).
The underlying purpose of the CLRA is "to protect consumers against unfair and deceptive business practices and to provide efficient and economical procedures to secure such protection." Cal. Civ. Code § 1760. The CLRA "shall be liberally construed and applied to promote its underlying purpose." Id. California Civil Code § 1770 lists unlawful practices under the CLRA. See Cal. Civ. Code § 1770. For example, "[a]dvertising goods or services with intent not to sell them as advertised" is an unlawful practice. Cal. Civ. Code § 1770(a)(9).
To state a claim under the FAL, UCL, or CLRA, a plaintiff must allege that the defendant's purported misrepresentations are likely to deceive a reasonable consumer. See Williams, 552 F.3d at 938 (explaining that unless the advertisement at issue targets a particularly vulnerable group, courts must evaluate claims for false or misleading advertising from the perspective of a reasonable consumer). "A reasonable consumer is `the ordinary consumer acting reasonably under the circumstances.'" Davis, 691 F.3d at 1161-62 (quoting Colgan, 38 Cal. Rptr. 3d at 48). "Likely to deceive implies more than a mere possibility that the advertisement might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner." In re Sony Gaming Networks and Customer Data Sec. Breach Litig., 903 F.Supp.2d 942, 967 (S.D. Cal. 2012) (quoting Lavie v. Procter & Gamble Co., 105 Cal.App.4th 496, 129 Cal.Rptr.2d 486, 495 (2003)). Rather, "the phrase indicates that the ad is such that it is probable that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled." Lavie, 129 Cal. Rptr. 2d at 495. "In determining whether a statement is misleading under the statute, the primary evidence in a false advertising case is the advertising itself." Colgan, 38 Cal. Rptr. 3d at 46 (quoting Brockey v. Moore, 107 Cal.App.4th 86, 131 Cal.Rptr.2d 746, 756 (2003)). The Ninth Circuit has emphasized that under the reasonable consumer test, it is a "rare situation
However, "`[g]eneralized, vague, and unspecified assertions constitute "mere puffery" upon which a reasonable consumer could not rely, and hence are not actionable' under the UCL, FAL, or CLRA" In re Ferrero Litig., 794 F. Supp. 2d at 1115 (quoting Anunziato, 402 F. Supp. 2d at 1139); see also Williams, 552 F.3d at 939 n.3. "While product superiority claims that are vague or highly subjective often amount to nonactionable puffery, `misdescriptions of specific or absolute characteristics of a product are actionable.'" In re Ferrero Litig., 794 F. Supp. 2d at 1115 (quoting Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1145 (9th Cir. 1997)).
In Freeman, the Ninth Circuit affirmed dismissal of UCL, FAL, and CLRA causes of action after finding that a reasonable person would not be deceived. Freeman, 68 F.3d at 290. There, the plaintiff alleged he was deceived by a mailer that stated he won a million-dollar sweepstakes, but the mailer also included the condition that winning required having a winning sweepstakes number. Id. at 287, 289-90. The court further noted that the qualifying language was not hidden or unreadably small and "appear[ed] immediately next to the representations it qualifies and no reasonable reader could ignore it." Id. at 289. The circuit court concluded its analysis by noting that the representations must be addressed in context and quotes the lower court that the "statements, in context, are not misleading." Id. (quoting the lower court order and Haskell v. Time, Inc., 857 F.Supp. 1392, 1403 (E.D. Cal. 1994)).
In contrast, the Ninth Circuit in Williams reversed dismissal of UCL, FAL, and CLRA claims, finding that a reasonable consumer would be deceived. Williams, 552 F.3d at 940. There, the plaintiff alleged that the use of "Fruit Juice" on a snack accompanied with images of fruit was deceptive because the snack "contained no fruit juice from any of the fruits pictured on the packaging and because the only juice contained in the product was white grape juice from concentrate." Id. at 936. The plaintiff also challenged language on the side panel of the packaging that the snack "was made `with real fruit juice and other all natural ingredients,' even though the two most prominent ingredients were corn syrup and sugar" and was "one of a variety of nutritious Gerber Graduates foods and juices." Id. The Ninth Circuit disagreed with the district court's assessment that "no reasonable consumer upon review of the package as a whole would conclude that Snacks contains juice from the actual and fruit-like substances displayed on the packaging particularly where the ingredients are specifically identified." Id. at 939. Instead, the Ninth Circuit noted that consumers should not "be expected to look beyond misleading representations on the front of the box to discover the truth from the ingredient list in small print on the side of the box." Id.
Here, the parties paint different pictures of the Defendant's advertisements. Plaintiff alleges Defendant uses several false or misleading phrases that, taken together, "confuse and mislead consumers into believing its use will cause weight loss, fat reduction, contour the body, result in visible `six pack' abs, and otherwise be a total replacement to traditional exercise." Compl. ¶ 20; Doc. No. 13 at 20. Plaintiff claims she took that representation as truth, the representation was false, and lost money by purchasing the Flex Belt. Compl. ¶¶ 20-31; Doc. No. 13 at 20. Defendant argues that Plaintiff takes these representations out of context "to create the
As a preliminary matter, the parties both highlight that the FDA has cleared the Flex Belt as an EMS device for toning, firming, and strengthening abdominal muscles. See Compl. ¶13; Doc. No. 8 at 23-24; Doc. No. 8-8 at 4; Doc. No 13 at 9. Because the FDA has cleared Flex Belt for such use, such representations cannot be deceptive to a reasonable person. However, it would be deceptive to market an EMS device as cleared by the FDA "for weight loss, girth reduction, or for obtaining `rock hard' abs" because "no devices have been cleared at this time" for such uses. Doc. No 8-8 at 2. Plaintiff argues that Defendant crosses the line and advertised results that the FDA has not cleared and that the Flex belt alone cannot achieve.
Many of the testimonials upon which Plaintiff relies contain puffery.
Compl. ¶ 21; Doc. No. 8-5 at 5. These testimonials alone are nonactionable puffery because they are highly subjective to the individuals giving the statements.
The website and the Amazon.com listing further state that "[t]he Flex Belt® will stimulate all your major stomach muscles at the same time providing you with the
Additional short phrases fall under nonactionable puffery: "GREAT ABS START HERE," "Maximum Core Strength," and
Plaintiff further alleges that Defendant "markets the Flex Belt as a `miracle device' that provides a `perfect' abdominal workout in only 30 minutes of use per day while watching television, reading, cooking, or undertaking other mundane, non-physical activities. Slendertone further markets the Flex Belt as causing fat loss and well-defined abdominal muscles (i.e., `six pack' abs), and as a better alternative to, or at least the equivalent of, conventional abdominal exercises, such as sit-ups or crunches." Compl. ¶ 11. Defendant correctly points out that "miracle device," "perfect abdominal workout," and "fat loss" do not appear on its advertising. Indeed, Plaintiff fails to allege with specificity under Rule 9(b) where those statements are found. Moreover, it appears Defendant's website states "perfect abdominal contraction" not workout. Compl. ¶ 20; Doc. No. 8-5 at 4; Doc. No. 8-6 at 4. Additionally, Plaintiff claims Defendant used the following marketing phrasing: "Rid Belly Fat with The Flex Belt." Compl. ¶ 20. Although Plaintiff attaches a screenshot of a YouTube page with that statement as the title, neither the YouTube page nor the Plaintiff shows or alleges that the video was prepared or published by Defendant. See Compl. ¶¶ 20, 21.
Defendant is further correct that any reference to fat loss is accompanied by disclaiming language that the Flex Belt is insufficient to achieve weight loss and that a more attractive abdominal area requires proper diet and exercise. See Doc. No. 8 at 23. For example, Defendant's website highlights that the "Flex Belt does not remove inches of fat but it tones, tightens, and strengthens your stomach muscles. Using The Flex Belt in conjunction with your dedication to Diet, Nutrition and Exercise can help you achieve your goals of a more attractive stomach as well!" Doc. No. 8-5 at 4. This language is not buried at the bottom of the website or in smaller print than the rest of the website; rather, it is in the upper portion of the front page of the website in its standard font. Moreover, that language is immediately followed by the following larger font: "Our Motto is Eat Right, Exercise and Use The Flex Belt...." Id. at 4. In a section labeled "Who Should Use the Flex Belt®?," Defendant provides disclaiming language in the same font and size as the surrounding language: "* The Flex Belt® does not remove inches of fat but it tones, tightens and strengthens your stomach muscles." Id. at 6. In describing Flex Belt use by one of Defendant's spokespersons, the website states "In conju[n]ction with her grueling workout regimen, Jill used The Flex Belt® and Flex Mini (our Butt Toning Product) daily to supplement her program. Id. at 7 (emphasis added). This cautionary message about how to achieve weight loss or fat reduction is echoed on Defendant's Amazon.com listing:
Doc. No 8-6 at 5. Next to this language is the following: "
However, despite the puffery and the disclaiming language, specific statements on Defendant's website, taken in their context, give rise to a plausible claim that a reasonable person would be deceived. Directly above the cautionary language that the Flex Belt "does not remove inches of fat," Defendant's website provides that "Who Should Use the Flex Belt®? ... Anyone that wants more attractive abs, regardless of current fitness levels." Doc. No. 8-5 at 6. Further down, the website provides that
Id. at 8. Towards the bottom, Defendant appears to shift its FDA-approved language of "toning strengthening, and firming" to language of "[f]or those looking for a convenient way to tone, strengthen and flatten the abdominal area." Id. at 9.
Taken together with the above "
Interpreting these statutes broadly, the Court finds that they do not permit Defendant to make misleading statements as to improved abdominal appearance with the Flex Belt while simultaneously disclaiming that "The Flex Belt does not remove inches of fat" to avoid judicial scrutiny on a motion to dismiss. Doc. No. 8-5 at 4, 8, 9. Unlike the Freeman case, where dismissal was appropriate given the conditional language and its immediate proximity to the language-at-issue, Defendant's website appears to provide contradictory language that could plausibly deceive a reasonable person. Although the additional personal testimonials and pictures of six-pack abdominal muscles constitute puffery, the testimonials and pictures "contribute `to the deceptive context of the packaging as a whole." In re Ferrero Litig., 794 F. Supp. 2d at 1116 (quoting Williams, 552 F.3d at 939 n.3). As in Williams where the defendant had packaging with the phrase "Fruit Juice" accompanied with images of fruit, 552 F.3d at 936, Defendant in this case provides language indicating improved abdominal appearance accompanied with pictures of individuals with attractive abdominal
Under the "unlawful prong," Plaintiff alleges Defendant violated the FAL; CLRA; the Federal Food, Drug, and Cosmetic Act; and the California Sherman Food Drug, and Cosmetic Act. Compl. ¶ 40. While the parties go into depth regarding the fraudulent prong, the parties fail to explicitly address the unlawful prong.
An action brought under the "unlawful" prong of this statute "borrows" violations of other laws when committed pursuant to business activity. Farmers Ins. Exchange v. Superior Court, 2 Cal.4th 377, 383, 6 Cal.Rptr.2d 487, 826 P.2d 730 (1992). This prong is essentially an incorporation-by-reference provision." Obesity Research Inst., LLC v. Fiber Research Int'l, LLC, 165 F.Supp.3d 937, 952 (S.D. Cal. 2016); see also Cel-Tech Commc'ns, Inc., 83 Cal.Rptr.2d 548, 973 P.2d at 539-49 ("By proscribing `any unlawful' business practice, `section 17200 "borrows" violations of other laws and treats them as unlawful practices' that the unfair competition law makes independently actionable."). Accordingly, "[w]hen a statutory claim fails, a derivative UCL claim also fails." Obesity Research Inst., LLC, 165 F. Supp. 3d at 953 (quoting Aleksick v. 7-Eleven, Inc., 205 Cal.App.4th 1176, 140 Cal.Rptr.3d 796, 801 (2012)).
Here, Plaintiff can succeed on this prong only if she pleaded sufficient facts to support another violation. See Aleksick, 140 Cal. Rptr. 3d at 801. Because Plaintiff has pleaded sufficient facts to bolster her FAL and CLRA causes of action, her "unlawful prong" UCL claim survives Defendant's challenge.
Plaintiff alleges Defendant's actions were unfair because its conduct was immoral, unethical, unscrupulous, injurious, and violative of public policy. Compl. ¶ 51-58. Because of past and continuing injury, Plaintiff seeks injunctive and restitutionary relief. Compl. ¶ 57-58. As with the unlawful prong, the parties fail to explicitly address the unfair prong.
With respect to the "unfairness" prong, the California Supreme Court has defined the word "unfair" under the UCL to mean conduct that "threatens an incipient violation of an antitrust law, or violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of the law, or otherwise significantly threatens or harms competition." Cel-Tech, 83 Cal.Rptr.2d 548, 973 P.2d at 544. However, Courts have struggled to "define `unfair' in the consumer action context after Cel-Tech." Lozano v. AT & T Wireless Servs., Inc., 504 F.3d 718, 736 (9th Cir. 2007); Rael v. New York & Co., Inc., No. 16-CV-369-BAS(JMA), 2017 WL 3021019, at *5 (S.D. Cal. July 17, 2017). "California courts define an unfair business practice as either a practice that undermines a legislatively declared policy or threatens competition, or a practice that has an impact on its alleged victim that outweighs the reasons, justifications, and motives of the alleged wrongdoer." In re Ferrero Litig., 794 F. Supp. 2d at 1117 (citing Lozano, 504 F.3d at 736) (noting a lack of certainty of the balancing approach in consumer cases in light of the "tethered" test detailed in Cel-Tech). This Court has assessed the following factors to determine this prong: "(1) whether the consumer injury is substantial; (2) whether the injury is outweighed by any countervailing interests; and (3) whether the injury is one that consumers themselves could not reasonably have avoided." Safransky, 2018 WL 1726620, at *14 (citing Camacho v. Auto. Club of S. California, 142 Cal.App.4th 1394, 48 Cal.Rptr.3d 770, 777 (2006)). "Whether a practice is ... unfair
Here, Plaintiff has pleaded facts showing customer injury. Plaintiff showcases specific statements regarding the physical appearance benefits of the Flex Belt on Defendant's website that a reasonable consumer could find misleading. Plaintiff alleges she relied on these representations in hope of attaining the promoted benefits without traditional exercise. Taking Plaintiff's allegations as true, the Court finds an injury. Defendant does not point the court to any countervailing interests. Finally, given that whether consumers could have avoided the injury is a question of fact, Rule 12(b)(6) dismissal is inappropriate. Thus, the Court finds Plaintiff properly pleaded sufficient facts to satisfy the unfair prong under the Camacho test.
Accordingly, the Court
Defendant argues that Plaintiff's allegations regarding California Civil Code §§ 1770(a)(7), 1770(a)(16) are unsupported by facts and must be dismissed. Doc. No. 8 at 25. Plaintiff does not respond to these arguments in her opposition brief.
As to subsection 1770(a)(7), Defendant asserts there are no facts alleging "subpar quality or poor construction." Id. Plaintiff simply quotes the language from the statute without showing how Defendant violated the subsection with factual support, and Plaintiff's allegations rest on false advertising claims. Accordingly, Plaintiff fails to state a viable claim under California Civil Code § 1770(a)(7).
As to subsection 1770(a)(16), Defendant claims "Plaintiff has not alleged any representations subsequent to the alleged initial representation." Doc. No 8 at 25. Several district courts have found subsection 1770(a)(16) "to target not the initial representation in a transaction, but a subsequent representation which is deceptive." Ehret v. Uber Techs., Inc., 68 F.Supp.3d 1121, 1139 (N.D. Cal. 2014) (quoting Blessing v. Sirius XM Radio Inc., 756 F.Supp.2d 445, 455 (S.D.N.Y. 2010)). Here, Plaintiff fails to allege a subsequent representation after purchasing the Flex Belt. Thus, Plaintiff fails to state a viable claim under California Civil Code § 1770(a)(16).
Accordingly, the Court
Plaintiff alleges Defendant made representations regarding the Flex Belt's health benefits that were part of the basis of the bargain; however, Plaintiff claims the Flex Belt failed to yield the advertised benefits. Compl. ¶ 74-75. Plaintiff claims Defendant breached the express warranty and caused Plaintiff damages. Id. ¶ 75-76, 78.
An express warranty is created by the following means:
Cal. Com. Code § 2313(1). To plead breach of an express warranty under California law, a "plaintiff must allege that the seller `(1) made an affirmation of fact or promise or provided a description of its goods; (2) the promise or description formed part of the basis of the bargain; (3) the express warranty was breached; and (4) the breach caused injury to the plaintiff.'" Viggiano, 944 F. Supp. 2d at 893 (quoting Rodarte, 2003 WL 23341208, *7); see also Cal. Com. Code § 2313(1)(a). "Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description." Id. § 2313(1)(b). Under the California Commercial Code, a plaintiff need not show reliance. Weinstat v. Dentsply Internat., Inc., 180 Cal.App.4th 1213, 103 Cal.Rptr.3d 614, 626 (2010); see also Cal. Com. Code § 2313 cmt. 3.
Plaintiff has adequately pleaded a claim for breach of express warranty regarding the benefits of using the Flex Belt. As discussed in depth, supra, Plaintiff identified specific statements regarding the appearance benefits of using the Flex Belt. See Doc. No. 8-5 at 6. Plaintiff claims that the purported benefit was the basis for purchasing the Flex Belt. Compl. ¶ 24, 25. She further alleges that the Flex Belt could not achieve the results associated with traditional exercise. See id. ¶ 13, 18, 19. Finally, she claims the breach caused a financial injury. Id. ¶ 28.
However, Defendant argues that it only provided a limited express warranty—a warranty only addressing product defects. Doc. No. 8 at 29. Defendant's warranty for the Flex Belt states "THIS LIMITED WARRANTY IS THE ONLY WARRANTY FOR THE PRODUCT, AND THERE ARE NO OTHER EXPRESS WARRANTIES, ORAL OR WRITTEN, PROVIDED BY [Slendertone]." Doc. No. 8-3 at 3.
Under California law, "[w]ords or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other." Cal. Com. Code § 2316. "Because a disclaimer or modification is inconsistent with an express warranty, words of disclaimer or modification give way to words of warranty unless some clear agreement between the parties dictates the contrary relationship." Hauter v. Zogarts, 14 Cal.3d 104, 120 Cal.Rptr. 681, 534 P.2d 377, 386 (1975). Limitation of warranties are allowed "only by means of [w]ords that clearly communicate that a particular risk falls on the buyer." Id. Further, disclaimers or modifications "must be strictly construed against the seller." Id. (citing Burr v. Sherwin Williams Co., 42 Cal.2d 682, 268 P.2d 1041, 1047 (1954)). Importantly, "[a] unilateral nonwarranty cannot be tacked onto a contract containing a warranty." Id. (citing Klein v. Asgrow Seed Co., 246 Cal.App.2d 87, 54 Cal.Rptr. 609, 616 (1966)).
Noting the presumption of construing warranties as consistent with one another, the burden against the seller, and the fact the limited warranty was included in the packaging for the Flex Belt after Plaintiff purchased it, see Doc. No. 8-2 at 2, the Court finds that the limited warranty does not upset Plaintiff's alleged express warranty cause of action.
Accordingly, the Court
Plaintiff alleges that Defendant is a merchant of the kind of goods sold and impliedly
"Unlike express warranties, which are basically contractual in nature, the implied warranty of merchantability arises by operation of law." Am. Suzuki Motor Corp. v. Superior Court, 37 Cal.App.4th 1291, 1295, 44 Cal.Rptr.2d 526 (1995) (citing Hauter, 120 Cal.Rptr. 681, 534 P.2d at 385). "The implied warranty of merchantability `is breached when the goods do not conform to the promises or affirmations contained on the container or label or are not fit for the ordinary purposes for which the goods are used.' These are two separate definitions of merchantability." Kanfer, 142 F. Supp. 3d at 1104 (quoting Martinez v. Metabolife Int'l, Inc., 113 Cal.App.4th 181, 6 Cal.Rptr.3d 494, 500 (2003)); see also Cal. Com. Code § 2314.
Defendant argues this cause of action is not available to Plaintiff because Plaintiff bought the Flex belt through Amazon.com and thus lacks the necessary vertical privity with Defendant. See Doc. No. 8 at 31. Plaintiff responds that there is privity because the parties are linked in the distribution chain and—even if no privity exists—the claim can proceed under the third-party beneficiary exception. Doc. No. 13 at 28.
A plaintiff asserting breach of an implied warranty must be in vertical privity with the defendant. Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1023 (9th Cir. 2008) (citing Osborne v. Subaru of Am., Inc., 198 Cal.App.3d 646, 243 Cal.Rptr. 815, 821 n.6 (1988)). Because vertical privity requires the buyer and seller to be "in adjoining links of the distribution chain[,] ... an end consumer ... who buys from a retailer is not in privity with a manufacturer." Id. (citing Osborne, 243 Cal. Rptr. at 821 n.6) (emphasis added). One exception is where the plaintiff relies on the advertisements or labels of the manufacturer, id.; however, this exception is "applicable only to express warranties." Burr, 268 P.2d at 1049 (Cal. 1954). Here, Plaintiff and Defendant are not in adjoining links because Plaintiff bought the Flex Belt through Amazon.com and not directly from Defendant. See Compl. ¶ 24. Thus, under Clemons, because Plaintiff was a buyer who bought from a retailer, Plaintiff is not in privity with defendant.
Moreover, the Court finds there is no third-party beneficiary exception to California's privity requirement. The Ninth Circuit has found that "California courts have painstakingly established the scope of the privity requirement under California Commercial Code section 2314, and a federal court sitting in diversity is not free to create new exceptions to it." Clemens, 534 F.3d at 1024. There is such an exception where "the owner of a building could bring an implied warranty of fitness claim against a subcontractor who installed a leaky roof, despite a lack of privity, because the owner was an intended beneficiary of the contract between the subcontractor and the general contractor that the owner had hired." In re Seagate Tech. LLC Litig., 233 F.Supp.3d 776, 787 (N.D. Cal. 2017) (citing Gilbert Fin. Corp. v. Steelform Contracting Co., 82 Cal.App.3d 65, 145 Cal.Rptr. 448, 450 (1978)). Despite there being a split among the federal district courts on whether there is a third-party beneficiary exception to the privity requirement, Mandani v. Volkswagen Grp. of Am., Inc., No. 17-CV-07287-HSG, 2019 WL 652867, at *6 (N.D. Cal. Feb. 15,
Accordingly, the Court
In sum, the Court
Based on the foregoing, the Court
