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Dabish v. Infinitelabs, LLC

United States District Court, S.D. California

September 17, 2014

DARICK DABISH, individually and on behalf of all others similarly situated, Plaintiff,
INFINITELABS, LLC., a Florida limited liability company, Defendant.


BARRY TED MOSKOWITZ, Chief District Judge.

Defendant Infinitelabs, LLC, has filed a motion to dismiss certain claims in Plaintiff's Complaint. For the reasons discussed below, Defendant's motion is GRANTED IN PART and DENIED IN PART.


On September 3, 2013, Plaintiff Darick Dabish commenced this action. Plaintiff alleges that during the "Class Period" (September 3, 2009 to the present), he purchased the dietary supplement Infinite Labs Pro Tribulus (the "Product") for his own use from a retailer website,, based on representations on the product label and Defendant's website that the product supports natural testosterone production, provides advanced LH production, acts as an athlete's performance aid, and naturally increases lean muscle. (Compl. ¶¶ 4-5, 36, 41.) The Product contains the sole ingredient Tribulus Terrestris ("TT").

Plaintiff alleges that Defendant's claims regarding the Product were false and misleading because: (1) there is no competent and reliable scientific evidence supporting the claims (Compl. ¶¶ 15, 92); (2) there is competent and reliable scientific evidence refuting those claims (Compl. ¶¶ 16, 92); and (3) the Product does not provide the claimed benefits (Compl. ¶¶ 51, 93).

Plaintiff seeks to bring this action on behalf of himself and a California and national consumer class defined as: All persons in the State of California and United States "who have spent money purchasing the Product from Defendant from four years from the first-filed complaint in this action until the final disposition of this and any and all related cases." (Compl. ¶ 55).

Plaintiff's Complaint asserts the following causes of action: (1) violation of the Consumers Legal Remedies Act, Cal. Civ. Code §§ 1750, et seq. ("CLRA") (2) violation of the Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200, et seq. ("UCL"); (3) violation of the False Advertising Law, Cal. Bus. & Prof. Code §§ 17500, et seq. ("FAL"); and (4) breach of all applicable express warranties upon which Plaintiff relied in buying the Product.


A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be granted only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept. , 901 F.2d 696, 699 (9th Cir. 1988). When reviewing a motion to dismiss, the allegations of material fact in plaintiff's complaint are taken as true and construed in the light most favorable to the plaintiff. See Parks Sch. of Bus., Inc. v. Symington , 51 F.3d 1480, 1484 (9th Cir. 1995). Although detailed factual allegations are not required, factual allegations "must be enough to raise a right to relief above the speculative level." Bell Atlantic v. Twombly , 550 U.S. 544, 555 (2007). "A plaintiff's obligation to prove 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." Id . "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not show[n] that the pleader is entitled to relief." Ashcroft v. Iqbal , 565 U.S. 662, 679 (2009) (internal quotation marks omitted). Only a complaint that states a plausible claim for relief will survive a motion to dismiss. Id.


Defendant moves to dismiss Plaintiff's class action Complaint "in its entirety, " arguing that Plaintiff has failed to state claims under the CLRA, UCL, and FAL, has not pled fraud with particularity as required under F.R.C.P. 9(b), and lacks Article III standing to request injunctive relief. Defendant's Memorandum of Points and Authorities does not explicitly challenge Plaintiff's claim for breach of express warranties, and the Court does not address that claim. The Court grants Defendant's motion to dismiss Plaintiff's claims for injunctive under the UCL, FAL, and CLRA, but denies the motion as to all remaining claims.

A. Lack of Substantiation

Defendant contends that the Complaint fails to allege a claim of false or misleading labels, and merely states a "lack of substantiation" claim, which Defendant argues is not cognizable under California law. Plaintiff does not dispute this legal argument, but does dispute that his claims rely on this theory.

A number of district courts in the Ninth Circuit have wrestled with this issue. See, e.g., Hazlin v. Botanical Laboratories, Inc., 13-cv-0618-DMS-JMA (S.D. Cal. Aug. 8, 2013); Route v. Mead Johnson Nutrition Co., 12-cv-7350-GW-JEMx, 2013 WL 658251 (C.D. Cal. Feb. 21, 2013); Eckler v. Wal-Mart Stores, Inc., 12-cv-727-LAB-MDD, 2012 WL 5382218 (S.D. Cal. Nov. 1, 2012); In re Clorox Consumer Litig. , 894 F.Supp.2d 1224 (N.D. Cal. 2012); Cardenas v. NBTY, Inc. , 870 F.Supp.2d 984 (E.D. Cal. 2012); Chavez v. Nestle USA, Inc. , 09-cv-9192-GW-CWX, 2011 WL 2150128 (C.D. Cal. May 19, 2011), aff'd in part, rev'd in part and remanded, 511 Fed.Appx. 606 (9th Cir. 2013); Fraker v. Bayer Corp. , 08-cv-1564-AWI-GSA, 2009 WL 5865687 (E.D. Cal. Oct. 2, 2009). See also Johns v. Bayer Corp., 09-cv-1935-AJB-DHB, 2013 WL 1498965 (S.D. Cal. Apr. 10, 2013); Stanley v. Bayer Healthcare LLC, 11-cv-862-IEG-BLM, 2012 WL 1132920 (S.D. Cal. Apr. 3, 2012) (addressing issue on summary judgment). Some have found the plaintiff's claims rely on a lack of substantiation theory. See Johns, 2013 WL 1498965; Route, 2013 WL 658251; Eckler, 2012 WL 5382218; Stanley, 2012 WL 1132920; Chavez , 2011 WL 2150128; Fraker , 2009 WL 5865687. Others have not. See Hazlin, 2013 U.S. Dist LEXIS 143663; In re Clorox, 894 F.Supp.2d 1224; Cardenas , 870 F.Supp.2d 984. The pleadings have been the determinative factor in each case. Additionally, courts in this circuit have consistently found that a ...

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