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Marshall v. PH Beauty Labs, Inc.

United States District Court, C.D. California

May 27, 2015

GERI MARSHALL, on behalf of herself and all others similarly situated, Plaintiff,
v.
PH BEAUTY LABS, INC. dba FREEMAN BEAUTY, Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS IN PART AND DENYING IN PART [Dkt. 19]

DEAN D. PREGERSON, District Judge.

Presently before the court is Defendant PH Beauty Labs, Inc.'s Motion to Dismiss. Having considered the submissions of the parties and heard oral argument, the court grants the motion in part, denies the motion with respect to abandoned arguments, and adopts the following Order.

I. Background

Defendant sells a line of skin care products that claim to provide anti-aging benefits through the incorporation of apple stem cell extracts. (Complaint ¶ 1.) Plaintiff alleges that Defendant's products do not and cannot provide the advertised benefits, that the clinical study upon which Defendant bases its claims is not reliable, and the Defendant had breached an express warranty that the products will provide certain dermal benefits. (Id. ¶¶ 2-3.)

Plaintiff purchased one of Defendant's products in Spring 2011, "and then several times thereafter, perhaps approximately 5 tims total." (Id. ¶ 27.) Plaintiff relied on statements including: "Plant-based beauty;" "Contains High Potency/Plant Stem Cells/A Swiss Phyto Extract/for cellular rejuvenation;" "Clinical Results - 100% of Subjects Experienced Visible Decrease in Wrinkle Depth;" "Anti-Aging Cellular Activator Face Serum;" "Regenerates Skin Cells;" "Rehabilitates Aging Skin;" and "Resists Further Damage." (Id. ¶ 29.) Although she used Defendant's product for "a substantial period of time, " Plaintiff did not see the promised results. (Id. ¶ 30.)

Plaintiff's Complaint, removed to this court by Defendant, alleges claims under California law for unfair competition, false advertising, violations of the California Consumer Legal Remedies Act ("CLRA") and breach of express warranty. Defendant now moves to dismiss and/or narrow all claims.

II. Legal Standard

A complaint will survive a motion to dismiss when it contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When considering a Rule 12(b)(6) motion, a court must "accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Although a complaint need not include "detailed factual allegations, " it must offer "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. Conclusory allegations or allegations that are no more than a statement of a legal conclusion "are not entitled to the assumption of truth." Id. at 679. In other words, a pleading that merely offers "labels and conclusions, " a "formulaic recitation of the elements, " or "naked assertions" will not be sufficient to state a claim upon which relief can be granted. Id. at 678 (citations and internal quotation marks omitted).

"When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement of relief." Id. at 679. Plaintiffs must allege "plausible grounds to infer" that their claims rise "above the speculative level." Twombly, 550 U.S. at 555. "Determining whether a complaint states a plausible claim for relief" is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.

III. Discussion

A. Statute of Limitations

Claims under California's False Advertising Law ("FAL") and the CLRA are subject to a three year statute of limitations. Cal. Code. Civ. Pro. § 1783; Cal. Civ. Code § 338(a). Defendant contends that, because Plaintiff purchased its product in Spring 2011, the three-year statutes of limitations had run by the time Plaintiff filed her Complaint in February 2015, particularly in light of Defendant's alleged representation that its products are clinically proven to visibly repair skin in two weeks. (Compl. ¶ 24.)

Plaintiff first argues that her CLRA and FAL claims are not barred because, although she did first purchase Defendant's product in Spring 2011, the Complaint alleges that she subsequently bought the product again "several times thereafter" and used the product "for a substantial period of time." (Compl. ¶¶ 27, 30.) Thus, Plaintiff argues, her "claims may have accrued within the three-year statute of limitations." (Opposition at 5.) This vague, speculative assertion is not sufficient to state a plausible claim within the limitations period.

Nor is the court persuaded by Plaintiff's invocation of the continuing violation doctrine. The continuing violation doctrine aggregates "a series of small harms, any one of which may not be actionable on its own, into a single cause of action. The statute of limitations would run from the date of the last harmful act." NBCUniversal Media, LLC v. Superior Court, 225 Cal.App.4th 1222, 1237 n.10 (2014). Here, although Plaintiff purchased Defendant's product up to five times, it is unclear to the court why Plaintiff could not have brought her claims after her first disappointment in Spring 2011, or why that instance of alleged deficiency would only be actionable in conjunction with subsequent failures. While subsequent wrongs might have triggered the statute of limitations anew under the ...


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