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Cortina v. Wal-Mart, Inc.

United States District Court, S.D. California

June 23, 2014

THAMAR SANTISTEBAN CORTINA, on behalf of herself, all others similarly situated, and the general public, Plaintiff,
WAL-MART, INC., Defendant.


CYNTHIA BASHANT, District Judge.

On September 3, 2013, Plaintiff Thamar Cortina commenced this class action arising out of Defendant Wal-Mart, Inc.'s advertising and sales of a coenzyme Q10-based supplement under its "Equate" brand. Plaintiff alleged that Defendant (1) violated the Magnuson-Moss Warranty Act ("MMWA", 15 USC §§ 2301(4)-(5)); (2) violated the Arkansas Deceptive Trade Practices Act ("ADTPA", Ark. Code Ann. §§ 4-88-107(a)(1)-(3), (10)); (3) violated the California Unfair Competition Law ("UCL", Cal. Bus. & Prof. Code §§ 17200, et seq. ); (4) violated the California False Advertising Law ("FAL", Cal. Bus. & Prof. Code §§ 17500, et seq. ); (5) violated the California Consumers Legal Remedies Act ("LRA", Cal. Civ. Code §§ 17200, et seq. ); (6) breached its Uniform Commercial Code ("UCC") express warranty; (7) breached its UCC implied warranty of merchantability; and (8) breached its implied warranty of fitness under California Commercial Code § 2315.

Defendant now moves to dismiss Plaintiff's Complaint under Federal Rules of Civil Procedure 8, 9(b), and 12(b)(6).

The Court finds this motion suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). For the following reasons, the Court GRANTS Defendant's motion to dismiss.


Plaintiff alleges in the Complaint that she has used coenzyme Q10 supplements since 1998 and "on several occasions" purchased Equate Co Q-10 at a Wal-Mart in Chula Vista, California. Compl. ¶¶ 14-15. Plaintiff alleges she "relied on Wal-Mart's representations, " including that their formulation is "clinical strength, ' high absorption, ' [ ] 3 times better absorption' than competing products, [...]comparable to more expensive products like Qunol Ultra CoQ-10, and that it generally supported heart health." Compl. ¶ 17.

Plaintiff contends that the U.S. Pharmacopeial Convention ("USP") sets "standards for dietary supplements that are enforceable by the Food and Drug Administration." Compl. ¶ 18. However, USP testing is voluntary, and Defendant has not submitted Equate CoQ-10 for USP verification. Compl. ¶¶ 29-30. Plaintiff incorporates the COQ10 Monograph as Exhibit 2 into the Complaint, which requires that "ubidecarenone capsules, like the Equate CoQ10 soft gels, must contain NLT [No Less Than] 90% and NMT [No More Than] 115% of the labeled amount of' CoQ10, " and "must meet the requirements for the test for Dissolution, ' including Tolerances: NLT 75% of the labeled amount of ubidecarenone... is dissolved.'" Compl. ¶¶ 24-28. Plaintiff alleges that "Equate is labeled to contain 100mg of CoQ10. Accordingly, pursuant to the CoQ10 Monograph, Equate must contain at least 90mg of CoQ10, and must exhibit at least 75% dissolution." Compl. ¶ 31.

A laboratory, Covance, tested two lots of Equate CoQ-10, with the Certificate of Analysis incorporated as Exhibits 4 and 5. Compl. ¶ 32. Convance purported to use "applicable testing standards" and six samples from each lot to find that Lot 1 averaged 55.32 mg and 41.18% dissolution, while Lot 2 averaged 55.53 mg and 41.3% dissolution. Compl. ¶¶ 35-36. Plaintiff contends that Equate CoQ-10 therefore "fails to provide the full benefit of the product advertised. Equate's 41.3% dissolution level is just 55% [of] the 75% dissolution level required." Compl. ¶ 37. Plaintiff further claims that for Equate CoQ-10's "3 times better absorption" claim to be valid, "competing products must provide just 13.8% absorption (41.3% ÷ 3)." Compl. ¶ 38.

The Complaint bases its false and misleading advertising causes of action on the position that Wal-Mart's claims that Equate CoQ-10 "provides clinical strength, ' high absorption, ' and 3 times better absorption' than competitors is false and misleading because the product does not provide sufficient CoQ10, nor dissolve sufficiently to provide adequate absorption, much less 3 times' that of its competitors." Compl. ¶ 39. Additionally, Defendant's representations that Equate CoQ-10 "generally supports heart health and is beneficial to statin users, while perhaps literally true, is also misleading inasmuch as the product supports heart health to a lesser degree, and provides less benefit to statin users, than advertised, or than consumers would reasonably expect." Compl. ¶ 40. Lastly, Plaintiff alleges Defendant's claim that "Equate [CoQ-10] is comparable to Qunol Ultra CoQ-10 is also false and misleading because there is no evidence that the products are equivalent in ingredients, quality, or dissolution." Compl. ¶ 41.

Plaintiff also alleges that Wal-Mart "deceptively omitted information that would have been material to consumers' purchasing decisions, e.g., that Equate [CoQ-10] does not adequately dissolve" and "does not provide any citation for its 3 times [absorption]' claim, providing consumers with no means of determining the claim's legitimacy." Compl. ¶¶ 42-43.

Without these "false and misleading representations, " Plaintiff alleges she would not have purchased Equate Co Q-10. Compl. ¶ 45. Thus, Plaintiff claims a loss in the "amount of her Equate purchases." Compl. ¶ 46. Therefore, Plaintiff alleges eleven causes of action against Defendant, including California statutory, federal statutory, Arkansas statutory, and Commercial Code claims. Defendants now move to dismiss the Complaint under Rules 8, 9(b), and 12(b)(6). Plaintiff opposes.


A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed.R.Civ.P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). The court must accept all factual allegations pleaded in the complaint as true and must construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, rather, it must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). "Where a complaint pleads facts that are merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).

"[A] plaintiff's obligation to provide the grounds' of his entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)) (alteration in original). A court need not accept "legal conclusions" as true. Iqbal, 556 U.S. at 678. Despite the deference the court must pay to the plaintiff's allegations, it is not proper for the court to assume that "the [plaintiff] can prove facts that [he or she] has not alleged or that defendants have violated ...

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