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Diana Stanley, On Behalf of Herself v. Bayer Healthcare LLC

April 3, 2012


The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

Order Granting Defendant's Motion for Summary Judgment [Doc. 76]; Denying as Moot Plaintiff's Motion for Class Certification [Doc. 57 &68] and Defendant's Motion to Exclude Expert Testimony [Doc. 75]

Presently before the Court are Plaintiff's motion for class certification, Defendant's motion to exclude certain expert testimony, and Defendant's motion for summary judgment. All matters were fully briefed, and the Court heard oral argument. Upon review, for the reasons explained herein, the Court GRANTS Defendant's motion for summary judgment, and DENIES AS MOOT Plaintiff's motion for class certification and Defendant's motion to exclude expert testimony.

Factual Background

Plaintiff Diana Stanley brings this action against Defendant Bayer Healthcare LLC on behalf of herself and others similarly situated alleging violation of the Consumer Legal Remedies Act (Cal. Civ. Code § 1750 et seq.) (CLRA), Unfair Competition Law (Cal. Bus. & Prof. Code § 17200 et seq.) (UCL), breach of express warranty, and money had and received/unjust enrichment. [Complaint, Doc. No. 1.] Plaintiff invokes the Court's jurisdiction under the Class Action Fairness Act (28 U.S.C. § 1332(d)(2)) (CAFA). [Complaint, ¶ 1.] The Complaint states claims based upon Defendant's sale of three particular products: Phillips' Colon Health Probiotic Supplement, Phillips' Colon Health Probiotic Caps, and Phillips' Colon Health Probiotic Fiber (collectively the "Products" or "PCH"). [Complaint, ¶¶ 24-26.]

1. Plaintiff's purchase and use of PCH

After her doctor recommended she take probiotics*fn1 to relieve diarrhea she had been experiencing, Plaintiff purchased one 30-Count bottle of Phillips' Colon Health Probiotic Caps on April 7, 2011. [Complaint, ¶ 3; Deposition of Diana Stanley ("Stanley Depo."), Exhibit 2 to the Declaration of Skye Resendes in Opposition to Defendant's MSJ ("Resendes Decl."), at 83:17-25, 194:19-21.] The pharmacist recommended PCH, and Plaintiff also read the outside of the box to see what symptoms PCH could relieve. [Id., at 88:12 - 89:5.] The one statement on the PCH package on which Plaintiff relied for her purchase stated: "Helps Defend against Occasional DIARRHEA." [Declaration of Kara McCall in Support of Defendant's MSJ ("McCall Decl."), Exhibit D, p. 23 (copy of box of 30-Count PCH Probiotic Caps); Stanley Depo., at 89:6-15.] Prior to purchasing PCH, Plaintiff never saw any advertisements for the product. [Stanley Depo., at 93-94.] Plaintiff used PCH for approximately six or seven days. [Deposition of Diana Stanley, Exhibit E in Support of Defendant's MSJ, at 98:3-5.] She stopped taking PCH after that time because she was not getting any relief for her diarrhea. [Stanley Depo., at 102:21-24.] Plaintiff filed the class action complaint in this case just over a week later, on April 22, 2011.

2. Other representations regarding effectiveness of PCH

Although Plaintiff purchased only the 30-Count box of Phillips' Colon Health Probiotic Caps, the Complaint states claims based upon Defendant's sale of other size boxes of the Probiotic Caps as well as two additional products: Phillips' Colon Health Probiotic Supplement and Phillips' Colon Health Probiotic Fiber (collectively the "Products" or "PCH"). [Complaint, ¶¶ 24-26.] All of the Products are prominently labeled with several claims relating to the PCH's benefits to digestive and immune health including the following:

* replenishes GOOD BACTERIA to promote overall DIGESTIVE HEALTH * helps NATURALLY PROMOTE REGULARITY * supports a HEALTHY IMMUNE SYSTEM [Complaint, ¶ 27; McCall Decl., Exhibit D (copies of packaging and labels for the Products).]

3. Plaintiff's legal claims

Plaintiff alleges Defendant's statements regarding PCH are false and mislead the public into the belief that consumption of PCH, on a consistent and regular basis, will improve digestive and immune health. [Complaint, ¶ 37.] Plaintiff alleges "[d]espite a complete lack of scientific or clinical data to support its claims, Bayer disregards accurate advertising in the interest of maximizing profits and charging consumers a premium for its health supplement products." [Id.] Plaintiff alleges Defendant "deceptively conveys the marketing message that the Products deliver unique benefits however fails to provide the consumer with a single bit of information that would support its claims." [Complaint, ¶ 43.] Plaintiff alleges Defendant's claims about the benefits of the Products "are not substantiated by the vast majority of generally accepted scientific literature currently available relating to probiotics." [Complaint, ¶ 50.] Plaintiff alleges Defendant's advertising "overwhelmingly conveys to the consumer that its Products will improve one's digestive health and immune system function, purportedly based on sound scientific principles and the positive benefits of probiotics." [Complaint, ¶ 44.]

Plaintiff alleges defendant's advertisements and representations are unsubstantiated, false, and misleading in violation of the CLRA. [Complaint, ¶ 65.] Plaintiff also asserts Defendant "engaged in unfair, deceptive, untrue and misleading advertising" by "making the representations and omissions of material facts ...." in violation of the UCL. [Complaint, ¶¶ 70-71.] Finally, Plaintiff asserts a claim for breach of contract, alleging that Defendant's product labeling and advertising "constitutes express warranties, became part of the basis of the bargain, and is part of a standardized contract between plaintiff ... on the one hand, and Bayer on the other." [Complaint, ¶ 83-85.]

Legal Standard

Summary judgment is proper where the pleadings and materials demonstrate "there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material issue of fact is a question a trier of fact must answer to determine the rights of the parties under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The court must review the record as a whole and draw all reasonable inferences in favor of the non-moving party. Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). However, unsupported conjecture or conclusory statements are insufficient to defeat summary judgment. Id.; Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008).

A non-moving party who bears the burden of proving at trial an element essential to its case must sufficiently establish a genuine dispute of fact with respect to that element or face summary judgment. See Celotex Corp., 477 U.S. at 322--23. Such an issue of fact is a genuine and material issue if it cannot be reasonably resolved in favor of either party and may affect the outcome of the suit. See Anderson, 477 U.S. at 248, 250--51.


Defendant seeks summary judgment arguing lack of substantiation is not a basis for relief under the UCL or CLRA and Plaintiff has failed to show any of the statements made regarding the Products are false or misleading. Defendant also argues it is entitled to summary judgment on Plaintiff's claim for unjust enrichment because there is no such stand-alone cause of action under California law.

a. Legal Elements of Claim for false advertising under UCL and CLRA California's UCL prohibits any "unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising ...." Cal. Bus. & Prof. Code § 17200 and 17500. California's CLRA generally prohibits "unfair methods of competition and unfair or deceptive acts or practices ...." Cal. Civ. Code § 1770. In evaluating a claim under the UCL and CLRA, courts are guided "by the 'reasonable consumer' test." Williams v. Gerber Products Co., 552 F.3d 934, 938 (9th Cir. 2008) (quoting Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir. 1995)). Under such standard, Plaintiffs "must 'show that members of the public are likely to be deceived'." Williams, 552 F.3d at 938 (quoting Bank of West v. Superior Court, 2 Cal. 4th 1254, 1267 (1992)). The UCL and CLRA prohibit "not only ...

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