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Brannon v. Barlean's Organic Oils, LLC

United States District Court, S.D. California

September 12, 2019

CORY BRANNON, individually, and on behalf of others similarly situated, Plaintiff,



         Pending before the Court is Defendant's Motion for Summary Judgment (ECF No. 4 (“Def.'s Mot. for Summ. J.”)), which Plaintiff opposes. For the reasons discussed below, the Court DENIES the motion.

         I. BACKGROUND

         Plaintiff filed suit against Defendant Barlean's Organic Oils, LLC (“Barlean's”) for violations of California business practices law and common law causes of action. Plaintiff, a consumer, purchased dietary supplements (“products”) manufactured by Barlean's. (ECF No. 1 (“Pl.'s Compl.”), ¶ 1.) Barlean's labeled and advertised its products with the following statements: “Nature's Perfect Superfood, ” “Pathway to a better life, ” “Vegan Superfood, ” and stated the products contain “Antioxidant Power” and are “designed to invigorate and nourish both your mind and body. Masterfully formulated with Nature's most vitalizing plant-based ingredients.” (Id.) The labels also claim that the products are a “premium superfood created to”: “Support cleansing of organs and tissues, ” “Super-Boost your health and energy, ” “Help improve digestion, ” “Aid the body's natural detoxification, ” and “Promote a healthy immune system.” (Id.) These statements are structure/function claims under the Dietary Supplement Health and Education Act (“DSHEA”), because they “describe[] the role of a nutrient or dietary ingredient intended to affect the structure or function in humans.” 21 U.S.C. § 343(r)(6)(A).

         The thrust of Plaintiff's argument is that Barlean's advertising and labeling (the “representations”) are false and misleading on two grounds. First, he claims the representations violate the DSHEA because they are not substantiated. (Pl.'s Compl., ¶ 2.) Second, he argues the products contain lead beyond the limits set by California's Proposition 65 (“Prop. 65”) and that Barlean's failed to affix the necessary warning label for products that exceed this maximum. (Id.) Plaintiff's causes of action follow from the alleged violations of the DSHEA and Prop. 65.

         Barlean's moved for summary judgment. (ECF No. 4 (“Def.'s Mot. for Summ. J.”).) It submitted factual information in support of what would otherwise be a Rule 12(b)(6) motion to dismiss, thus rendering it a Rule 56 motion for summary judgment. (Id. at 2:4-7.) The motion is supported by the declaration of John Puckett, Barlean's CEO, who affirms that all products include the necessary Prop. 65 warning label and that the lead in the products is naturally occurring. (ECF No. 4 (“Puckett Decl.”), ¶¶ 1, 4-5.) Plaintiff's opposition includes information about the harmfulness of ingesting lead. (ECF No. 6 (“Spector Decl.”).)


         Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure if the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Eat Right Foods Ltd. V. Whole Foods Mkt., Inc., 880 F.3d 1109, 1118 (9th Cir. 2018). A dispute is genuine if a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248.

         A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to establish an essential element of the nonmoving party's case on which the nonmoving party bears the burden of proving at trial. Id. at 331. "Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

         Once the moving party establishes the absence of genuine issues of material fact, the burden shifts to the nonmoving party to set forth facts showing that a genuine issue of disputed fact remains. Celotex, 477 U.S. at 314. The nonmoving party cannot oppose a properly supported summary judgment motion by “rest[ing] on mere allegations or denials of his pleadings.” Anderson, 477 U.S. at 256. When ruling on a summary judgment motion, the court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).


         Plaintiff has sued under five causes of action. Barlean's moves for summary judgment on each of them.

         A. Unfair and Unlawful Business Acts and Practices

         Plaintiff's first cause of action is for violation of California's Unfair Competition Law (“UCL”), which prohibits unlawful and unfair business practices. Cal. Bus. & Profs. Code §§ 17200, et seq. “An unfair business practice is one that either ‘offends an established public policy' or is ‘immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” McDonald v. Coldwell Banker, 543 F.3d 498, 506 (9th Cir. 2008) (quoting People v. Casa Blanca Convalescent Homes, Inc., 159 Cal.App.3d 509, 530 (1984)). “[V]irtually any state, federal, or local law can serve as the predicate” for a UCL claim. Friedman v. AARP, Inc., 855 F.3d 1047, 1052 (9th Cir. 2017) (quoting People ex rel. Lockyer v. Fremont Life Ins. Co., 104 Cal.App.4th 508 (2002)). The predicate law need not provide a private cause of action because UCL “‘borrows' violations of other laws and treats them as unlawful practices, ” which become “independently ...

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