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Choi v. Mario Badescu Skin Care, Inc.

California Court of Appeals, Second District, Third Division

June 21, 2016

WANKYU CHOI et al., Plaintiffs and Respondents;
MARIO BADESCU SKIN CARE, INC., et al., Defendants and Respondents.


         APPEAL from a judgment of the Superior Court of Los Angeles County No. BC501173, William F. Highberger, Judge.

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[Copyrighted Material Omitted]

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         The C2 Law Group, Erica E. Hayward; The Rudd Law Firm, Christopher L. Rudd; Whitfield Bryson & Mason, Gary E. Mason and Esfand Y. Nafisi for Plaintiffs and Appellants Mary Restaino, Geoffrey Yu, Theresa Stern Valentic, Betty Huang and Zoe Herold.

         Law Offices of Ronald A. Marron, Ronald A. Marron, Skye Resendes; and C. Benjamin Nutley for Plaintiff and Appellant Donna McLaren.

         Law Office of Young W. Ryu, Young W. Ryu; Law Offices of Gerald S. Ohn and Gerald S. Ohn for Plaintiffs and Respondents.

         Tucker Ellis, Ronie M. Schmelz and Rebecca A. Lefler for Defendants and Respondents.


         ALDRICH, J.


         Jae K. Lee and Wankyu Choi sued Mario Badescu Skin Care, Inc. and Mario Badescu for marketing and labeling two face creams without disclosing all of the ingredients. Plaintiffs sought economic damages and equitable relief on behalf of themselves and a nationwide class of face cream purchasers. Before the class was certified, defendants agreed to settle the action. Nine class members, who timely objected, appeal raising numerous contentions. In the unpublished portion of this opinion, we hold that the objectors have not demonstrated error. In the published portion of this opinion, we hold that the one-time publication of the notice of settlement did not violate the Consumers Legal Remedies Act (Civ. Code, § 1750 et seq. (CLRA)). Accordingly, we affirm the judgment.

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         1. The complaint

         In December 2012, the Korean Ministry of Food and Drug Safety suspended the sales of defendants’ Healing Cream after testing revealed the product contained two unlabeled corticosteroids, hydrocortisone and triamcinolone acetonide. The recall advised consumers to cease using the cream and warned that long-term use of steroids could lead to skin atrophy and enlarged capillaries.

         Plaintiffs Lee and Choi (together plaintiffs, the named plaintiffs, or class representatives) purchased defendants’ Healing Cream and used it.[1] Their attorneys had the purchased creams tested by an independent laboratory and discovered the presence of 2610 µg/g of hydrocortisone and 1899 µg/g of triamcinolone acetonide. The named plaintiffs filed this consumer class action against defendants on behalf of all persons residing in the United States who purchased defendants’ Healing Cream.

         The operative complaint alleged that defendants represented through marketing, advertising, labeling, and other forms of promotion, that the Healing Cream prevented acne scars and speeded up the healing process for irritated or acne-erupted skin, [2] but “failed to disclose that [defendants’] Healing Cream products contain levels of Hydrocortisone and Triamcinolone Acetonide, which are steroid substances with serious side effects. [¶]... [¶] Triamcinolone is a synthetic corticosteroid used to treat various skin conditions.... Triamcinolone Acetonide... is a DOCTOR’S PRESCRIPTION ONLY medicated cream....” The complaint alleged that the class overpaid for the product because its value was diminished at the time it was sold to consumers. Had the class members been aware that the cream contained hydrocortisone and triamcinolone acetonide, they would not have purchased the product, would have paid less for it, or would have purchased another competing product.

         The complaint asserted causes of action for violation of the CLRA; fraudulent concealment; false advertising in violation of Business and Professions Code section 17500, all of which violated Business and Professions Code section 17200; breach of express and implied warranties;

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and false and misleading advertisement in violation of the Magnuson-Moss Warranty —Federal Trade Commission Improvement Act (15 U.S.C. § 2301 et seq.). Plaintiffs sought an order certifying a nationwide class and a California subclass, and sought injunctive relief, restitution, monetary damages, punitive damages, and attorney fees. Defendants stopped selling the creams after the complaint was filed.

         [[2. The ...

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