Corbett v. PharmaCare U.S., Inc.

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

10

11 MONTIQUENO CORBETT, DAMARIS Case No.: 21cv137-GPC(AGS)

LUCIANO, and ROB DOBBS,

12

individually and on behalf of all others ORDER GRANTING IN PART AND

13 similarly situated, DENYING IN PART DEFENDANT’S

MOTION TO DISMISS AND

14 Plaintiffs,

DENYING DEFENDANT’S MOTION

15 v. TO STRIKE

[Dkt. No. 6.]

16 PHARMACARE U.S., INC.,

17 Defendant.

18

19 Defendant Pharmacare U.S., Inc. filed a motion to dismiss the complaint pursuant

20 to Federal Rule of Civil Procedure 9(b), 12(b)(1) and 12(b)(6) and motion to strike under

21 Rule 12(f). (Dkt. No. 6.) Plaintiffs filed an opposition to which Defendant replied. (Dkt.

22 Nos. 12, 17.) The Court finds that the matter is appropriate for decision without oral

23 argument pursuant to Local Civ. R. 7.1(d)(1). Based on the reasoning below, the Court

24 GRANTS in part and DENIES in part Defendant’s motion to dismiss and DENIES

25 Defendant’s motion to strike.

26 Background

27 On January 25, 2021, Plaintiffs Montiqueno Corbett, Damaris Luciano and Rob

28 Dobbs (“Plaintiffs”) filed a putative class action complaint against Defendant

1 PharmaCare U.S., Inc. (“Defendant” or “PharmaCare”) for violations of California’s

2 consumer fraud statutes for its sale of twelve dietary supplement products (“Products”)

3 under the name Sambucol that include elderberry.1 (Dkt. No. 1, Compl. ¶ 1.) Elderberry

4 is derived from a flowering plant called Sambucus which has become a popular dietary

5 supplement and has recently generated $100 million in sales in the United States. (Id. ¶¶

6 2, 3.)

7 Plaintiffs allege two theories of consumer fraud: 1) an illegal products theory; and

8 2) false and misleading labels, packaging and advertising theory as well as omissions

9 claims. On the first theory, Plaintiffs claim that Defendant’s Products are illegal to sell

10 and are mislabeled as dietary supplements under the Food, Drug and Cosmetic Act

11 (“FDCA”), 21 U.S.C. § 321(ff), and the Dietary Supplement Health and Education Act,

12 (DSHEA”) which passed in 1994 and established a new framework to govern the

13 “composition, safety, label, manufacturing and marketing of dietary supplements” as well

14 as California’s Sherman Law, California Health & Safety Code section 110095,

15 California’s consumer protection laws that incorporate the FDCA (Id. ¶¶ 23-27, 36.)

16 A dietary supplement is a “product (other than tobacco) intended to supplement the

17 diet” and contain one or more of the following; 1) vitamins, 2) minerals, 3) herbs or other

18 botanicals, 4) amino acid, 5) a supplement meant to increase total dietary intake, or 6) a

19 concentrate, metabolite, constituent, extract or combination of any of the listed

20 ingredients. (Id. ¶ 26 (citing 21 U.S.C. § 321(ff)(1).) Under the DSHEA, a “new”

21 dietary ingredient (those not used in the United States before 1994), may be used in

22 dietary supplements but must first be submitted to the FDA prior to sale unless the

23

24

25 1 The 12 Elderberry Products at issue are 1) Sambucol Black Elderberry Original Syrup, 2) Sambucol

Black Elderberry Advanced Immune Syrup, 3) Sambucol Black Elderberry Sugar Free Syrup, 4)

26 Sambucol Black Elderberry Syrup for Kids, 5) Sambucol Black Elderberry Gummies, 6) Sambucol

Black Elderberry Gummies for Kids, 7) Sambucol Black Elderberry Advanced Immune Capsules, 8)

27 Sambucol Black Elderberry Effervescent Tablets, 9) Sambucol Black Elderberry Chewable Tablets, 10)

Sambucol Black Elderberry Pastilles (Throat Lozenges), 11) Sambucol Black Elderberry Daily Immune

28

1 ingredient has been “present in the food supply as an article used for food without being

2 chemically altered.” (Id. ¶¶ 28, 30 (quoting 21 U.S.C. § 350b(a)(1).) A manufacturer or

3 distributor must provide the FDA with information that demonstrates “history of use or

4 other evidence of safety establishing that the dietary ingredient when used under the

5 conditions recommended or suggested in the labeling of the dietary ingredient will

6 reasonably be expected to be safe.” (Id. ¶ 31 quoting 21 U.S.C. § 350b(a)(2).) After

7 receiving information about the new dietary ingredient (“NDI”), the FDA may then

8 determine whether the manufacturer or distributor has provided an adequate basis to

9 conclude that the NDI is reasonably expected to be safe. (Id. ¶ 32.) Dietary supplements

10 that contain undisclosed NDIs are “adulterated” for purposes of the FDCA. (Id. ¶ 34.)

11 The complaint avers that Defendant did not notify the FDA with the required NDI

12 notification for its elderberry extract. (Id. ¶ 33.) As such, Plaintiffs allege that

13 Defendant’s Products are illegal to sell because the elderberry extract is adulterated and

14 misbranded under the FDCA and California’s Sherman Law. (Id. ¶ 36.)

15 On their illegal products theory, Plaintiffs allege three additional violations of the

16 FDCA. First, they contend that Defendant, by marketing the Products as “scientifically

17 tested”, “virologist developed”, “developed by a world renowned virologist”, as well as

18 advertising that the Products “support[] immunity” or claim “immunity support” are

19 implied disease claims under 21 C.F.R. § 101.93(g)(2) and misbranded under 21 U.S.C. §

20 343(r)(6). (Id. ¶¶ 38-42, 44 50 (citing 21 U.S.C. § 343(r)(6).) These phrases promise the

21 Products have the ability to mitigate, treat, cure, or prevent diseases which are barred by

22 the FDCA’s requirement that a product cannot make a claim to “diagnose, mitigate, treat,

23 cure, or prevent a specific disease or class of diseases.” (Id.) Second, Plaintiffs allege

24 the Products are misbranded under 21 U.S.C. § 352(f)(1) because the labeling fails to

25 include adequate directions for use and violate 21 U.S.C. § 331(a) of the FDCA. (Id. ¶¶

26 56-59.) Third, Plaintiffs claim that the Products are misbranded by stating the Products

27 have “high antioxidant levels” and fail to comply with 21 C.F.R. § 101.54(g). (Id. ¶¶ 60-

28 68.)

1

2 Plaintiffs’ second theory alleges that the claim that the Products have been

3 “scientifically tested” is misleading and deceptive because no published studies that test

4 the Products exist and those that do exist do not contain the same elderberry extract

5 formulation used in published studies. (Id. ¶¶ 69-72.) Also, “scientifically tested”

6 improperly suggests that the products are effective in keeping consumers safe from

7 diseases which is false. (Id. ¶ 73.)

8 Plaintiffs Montiqueno Corbet is a resident and citizen of San Diego, California,

9 Damaris Luciano is a resident and citizen of Holyoke, Massachusetts, and Rob Dobbs is a

10 resident and citizen of Florissant, Missouri. (Id. ¶¶ 14-16.) They all purchased certain of

11 the Products at issue after being exposed to, saw and relied on Defendant’s materially

12 misleading representations on the either the Products’ packaging and labeling, on

13 advertisements on T.V. or on websites. (Id. ¶¶ 79-93.) When they purchased the

14 Products, they believed they were legally sold supplements and they all claim they

15 experienced no improvement in their health after using the Products. (Id. ¶¶ 80, 81, 87,

16 88, 94, 95.)

17 Plaintiffs seek to certify a national class of “All persons in the United States who

18 purchased the Products (the ‘National Class’) for personal use and not for resale.”2 (Id. ¶

19 100.) They also seek to certify a California, Massachusetts and Missouri subclass. (Id.)

20 The complaint alleges claims under 1) California’s Unfair Competition Law (“UCL”),

21 Cal. Bus. & Prof. Code section 17200 et seq. on behalf of a national class and the

22 California subclass; 2) California’s False Advertising Law (“FAL”), Cal. Bus. & Prof.

23 Code section 17500 on behalf of the California subclass; 3) California’s Consumer Legal

24 Remedies Act (“CLRA”), Cal. Civ. Code section 1750 et seq. on behalf of the California

25 subclass; 4) Massachusetts General Laws Chapter 93A, § 2 on behalf of the

26

27

28

1 Massachusetts subclass; 5) Missouri Merchandising Practices Act (“MMPA”), Mo. Ann.

2 Stat. § 407.010 et seq. on behalf of the Missouri subclass; 6) breach of express warranty

3 on behalf of a national class and the subclasses; and 7) breach of the implied warranty of

4 merchantability on behalf of a national class and the subclasses. (Id. ¶¶ 111-194.)

5 Discussion

6 A. Legal Standard on Federal Rule of Civil Procedure 12(b)(1)

7 Federal Rule of Civil Procedure (“Rule”) 12(b)(1) provides for dismissal of a

8 complaint for lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). “A Rule

9 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for Everyone v. Meyer,

10 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the challenger asserts that the

11 allegations contained in a complaint are insufficient on their face to invoke federal

12 jurisdiction.” Id. The Court “resolves a facial attack as it would a motion to dismiss

13 under Rule 12(b)(6): Accepting the plaintiff's allegations as true and drawing all

14 reasonable inferences in the plaintiff's favor, the court determines whether the allegations

15 are sufficient as a legal matter to invoke the court's jurisdiction.” Leite v. Crane Co., 749

16 F.3d 1117, 1121 (9th Cir. 2014) (citation omitted). “[I]n a factual attack,” on the other

17 hand, “the challenger disputes the truth of the allegations that, by themselves, would

18 otherwise invoke federal jurisdiction.” Safe Air for Everyone, 373 F.3d at 1039. “In

19 resolving a factual attack on jurisdiction,” the Court “may review evidence beyond the

20 complaint without converting the motion to dismiss into a motion for summary

21 judgment.” Id. The Court “need not presume the truthfulness of the plaintiff's

22 allegations” in deciding a factual attack. Id. Once the defendant has moved to dismiss

23 for lack of subject matter jurisdiction under Rule 12(b)(1), the plaintiff bears the burden

24 of establishing the Court's jurisdiction. See Chandler v. State Farm Mut. Auto Ins. Co.,

25 598 F.3d 1115, 1122 (9th Cir. 2010).

26 Here, Defendant appears to make a facial challenge to subject matter jurisdiction

27 relying on the allegations in the complaint.

28 B. Legal Standard on Federal Rule of Civil Procedure 12(b)(6)

1 Federal Rule of Civil Procedure12(b)(6) permits dismissal for “failure to state a

2 claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Dismissal under Rule

3 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or sufficient

4 facts to support a cognizable legal theory. See Balistreri v. Pacifica Police Dep’t., 901

5 F.2d 696, 699 (9th Cir. 1990). Under Rule 8(a)(2), the plaintiff is required only to set

6 forth a “short and plain statement of the claim showing that the pleader is entitled to

7 relief,” and “give the defendant fair notice of what the . . . claim is and the grounds upon

8 which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

9 A complaint may survive a motion to dismiss only if, taking all well pleaded

10 factual allegations as true, it contains enough facts to “state a claim to relief that is

11 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,

12 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual

13 content that allows the court to draw the reasonable inference that the defendant is liable

14 for the misconduct alleged.” Id. “Threadbare recitals of the elements of a cause of

15 action, supported by mere conclusory statements, do not suffice.” Id. “In sum, for a

16 complaint to survive a motion to dismiss, the non conclusory factual content, and

17 reasonable inferences from that content, must be plausibly suggestive of a claim entitling

18 the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009)

19 (quotations omitted). In reviewing a Rule 12(b)(6) motion, the Court accepts as true all

20 facts alleged in the complaint, and draws all reasonable inferences in favor of the

21 plaintiff. al Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009).

22 Where a motion to dismiss is granted, Aleave to amend should be granted >unless

23 the court determines that the allegation of other facts consistent with the challenged

24 pleading could not possibly cure the deficiency.’” DeSoto v. Yellow Freight Sys., Inc.,

25 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture

26 Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to amend would

27 be futile, the Court may deny leave to amend. See Desoto, 957 F.2d at 658; Schreiber,

28 806 F.2d at 1401.

1 / / /

2 C. Legal Standard on Federal Rule of Civil Procedure 9

3 Where a claim alleges fraud or is grounded in fraud, Rule 9(b) requires a plaintiff

4 to “state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ.

5 P. 9(b). However, “[m]alice, intent, knowledge, and other conditions of a person's mind

6 may be alleged generally.” Id. A party must set forth “the time, place, and specific

7 content of the false representations as well as the identities of the parties to the

8 misrepresentation.” Odom v. Microsoft Corp., 486 F.3d 541, 553 (9th Cir. 2007)

9 (internal quotation marks omitted).

10 Allegations of fraud must be “specific enough to give defendants notice of the

11 particular misconduct which is alleged to constitute the fraud charged so that they can

12 defend against the charge and not just deny that they have done anything wrong.”

13 Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985); see also Cooper v. Pickett, 137

14 F.3d 616, 627 (9th Cir. 1997) (noting that particularity requires plaintiff to allege the

15 “who, what, when, where, and how” of the alleged fraudulent conduct). In addition, the

16 complaint must state “what is false or misleading about a statement, and why it is false.”

17 In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1548 (9th Cir. 1994) (en banc) superseded

18 by statute on other grounds, Private Sec. Litig. Reform Act of 1995, 15 U.S.C. § 78u–

19 4(b)(1), as recognized in Ronconi v. Larkin, 253 F.3d 423, 429 n.6 (9th Cir. 2001).

20 D. Legal Standard on Federal Rule of Civil Procedure 12(f)

21 Rule 12(f) provides that the court “may strike from a pleading an insufficient

22 defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P.

23 12(f). “The function of a 12(f) motion to strike is to avoid the expenditure of time and

24 money that must arise from litigating spurious issues by dispensing with those issues

25 prior to trial . . . .” Whittlestone, Inc. v. Handi–Craft Co., 618 F.3d 970, 973 (9th Cir.

26 2010) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on

27 other grounds 510 U.S. 517 (1994)).

28

1 “Motions to strike are ‘generally disfavored because they are often used as

2 delaying tactics and because of the limited importance of pleadings in federal practice.’”

3 Cortina v. Goya Foods, Inc., 94 F. Supp. 3d 1174, 1182 (S.D. Cal. 2015) (quoting

4 Rosales v. Citibank, 133 F. Supp. 2d 1177, 1180 (N.D. Cal. 2001)). As such, “motions to

5 strike should not be granted unless it is clear that the matter to be stricken could have no

6 possible bearing on the subject matter of the litigation.” Colaprico v. Sun Microsys., Inc.,

7 758 F. Supp. 1335, 1339 (N.D. Cal. 1991). “Courts will not grant motions to strike

8 unless ‘convinced that there are no questions of fact, that any questions of law are clear

9 and not in dispute, and that under no set of circumstances could the claim or defense

10 succeed.’” Novick v. UNUM Life Ins. Co. of America, 570 F. Supp. 2d 1207, 1208 (C.D.

11 Cal. 2008) (quoting RDF Media Ltd. v. Fox Broad. Co., 372 F. Supp. 2d 556, 561 (C.D.

12 Cal. 2005)). “When ruling on a motion to strike, this Court ‘must view the pleading

13 under attack in the light most favorable to the pleader.” Id. (citing RDF Media Ltd., 372

14 F. Supp. 2d at 561).

15 Discussion

16 A. Standing

17 Defendant argues that Plaintiff’s illegal products theory fails for lack of Article III

18 standing and statutory standing. (Dkt. No. 6-1 at 11-13.3) Plaintiffs claim they have

19 Article III standing to pursue their claims that Defendant’s products were not legally sold

20 supplements under the FDCA and DSHEA, that if they had known about the illegality of

21 the Products, they would not have purchased them and they suffered an injury in fact

22 because they lost money when they purchased the Products. (Dkt. No. 12 at 16.) As to

23 statutory standing, Plaintiffs merely distinguish the cases cited by Defendant. (Id. at 18-

24 19.)

25

26

27

28

1 As a starting point, both parties conflate the legal analysis and standard of Article

2 III standing and statutory standing under the UCL, CLRA and warranty claims.

3 However, Article III standing and statutory standing are distinct legal analyses. Cetacean

4 Community v. Bush, 386 F.3d 1169, 1174-75 (9th Cir. 2004) (noting distinction between

5 constitutional and non-constitutional standing); In re Capacitors Antitrust Litig., 154 F.

6 Supp. 3d 918, 925 (2015) (“Article III standing is different from, and not to be measured

7 by, statutory standing.”); City of Los Angeles v. Well Fargo & Co., 22 F. Supp. 3d 1047,

8 1056 (C.D. Cal. 2014) (“Statutory standing is a different inquiry from Article III

9 standing.”). Moreover, to support its argument, Defendant merely summarily argues that

10 Plaintiffs’ illegal products theory have been rejected by numerous courts citing to a

11 number of cases. 4 (See Dkt. No. 6-1 at 11-13.) However, Defendant fails to conduct a

12 legal analysis explaining what element of Article III standing or statutory standing is

13 deficient and fails to explain why the allegations in the complaint do not support

14 standing.

15 Therefore, the Court DENIES Defendant’s motion to dismiss the complaint for

16 lack of standing as not legally or factually supported. Nonetheless, the Court must

17 consider Article III standing because “[s]tanding is a threshold matter central to our

18 subject matter jurisdiction.” See Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985

19 (9th Cir. 2007).

20 Article III, Section 2 the United States Constitution requires that a plaintiff have

21 standing to bring a claim. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

22

23

24

4 In fact, the one case Defendant cites in support of Article III does not directly support it. In Brazil, on

25 the issue of whether the plaintiff’s illegal products theory was deficient under Article III standing, the

district court stated “it is doubtful whether Brazil’s illegal product theory is sufficient to establish

26 causation for purposes of Article III standing” and instead conducted an analysis of standing under the

UCL, FAL and CLRA. (See Dkt. No. 6-1 at 12-13 (citing Brazil v. Dole Food Co., Inc., Case No.: 12–

27 CV–01831–LHK, 2013 WL 5312418, at *8 (N.D. Cal. Sept. 23, 2013).) This language does not provide

decisive support of Defendant’s Article III argument. Moreover, it is noted that in Brazil, the defendant

28

1 “[T]he ‘irreducible constitutional minimum of [Article III] standing’” requires that “[t]he

2 plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the

3 challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable

4 judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan v.

5 Defs. of Wildlife, 504 U.S. 555, 560 (1992)). “To establish injury in fact, a plaintiff must

6 show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete

7 and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Id. at 1548

8 (quoting Lujan, 504 U.S. at 560). The Supreme Court noted that concreteness is quite

9 distinct from particularization. Id. An injury is “particularized” if it affects “the plaintiff

10 in a personal and individual way.” Id. In addition, for an injury to be “concrete”, it must

11 be “de facto,” meaning that it is “real” and not “abstract.” Id. However, an injury need

12 not be “tangible” in order to be “concrete,” and intangible injuries may constitute injury

13 in fact. Id. at 1549. “Economic injury is clearly a sufficient basis for standing.” San

14 Diego Cnty. Gun Rights Committee v. Reno, 98 F.3d 1121, 1130 (9th Cir. 1996);

15 Debernardis v. IQ Formulations, LLC, 942 F.3d 1076, 1084 (11th Cir. 2019) (“Economic

16 injuries are ‘[c]ertainly’ concrete.”).

17 The plaintiff bears the burden of demonstrating the elements of Article III

18 standing. Spokeo, Inc., 136 S. Ct. at 1547. At the pleading stage, the plaintiff “must

19 ‘clearly . . . allege facts demonstrating’ each element.” Id. In a class action, Article III

20 standing is met if at least one named plaintiff satisfies the requirements. Bates, 511 F.3d

21 at 985.

22 Here, the complaint alleges the three named Plaintiffs suffered an economic injury

23 in the amount of money spent on the Products due to the sale of illegally sold and falsely

24 advertised Products. (Dkt. No. 1, Compl. ¶¶ 84, 91, 98, 125, 134, 160, 184, 194.)

25 Therefore, the Court concludes that Plaintiffs have alleged “an injury in fact [] that is

26 fairly traceable to the challenged conduct”, Spokeo, 136 S. Ct. at 1547, and have

27 sufficiently alleged Article III standing. See Backus v. General Mills, Inc., 122 F. Supp.

28 3d 909, 921 (N.D. Cal. 2015) (“The purchase of such an allegedly unsafe and illegal

1 product is sufficient to confer standing for an economic injury under Article III and the

2 UCL.”); Pirozzi v. Apple, Inc., 966 F. Supp. 2d 909, 917 (N.D. Cal. 2013) (“palpable

3 economic injuries have long been recognized as sufficient to lay the basis for standing”)

4 (quoting Sierra Club v. Morton, 405 U.S. 727, 733-34 (1972)). Therefore, the Court has

5 subject matter jurisdiction over this case.

6 B. Rule 9(b)

7 The Ninth Circuit has held that Rule 9(b) applies to state-law causes of action,

8 including the UCL and FAL when they are grounded in fraud. Vess v. Ciba-Geigy Corp.,

9 U.S.A., 317 F.3d 1097, 1103 (9th Cir. 2003) (applying Rule 9(b) to section 17500 claim);

10 Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009) (applying Rule 9(b)

11 particularity requirement to UCL claim grounded in fraud). When a plaintiff “allege[s] a

12 unified course of conduct and rel[ies] entirely on that course of conduct as the basis of the

13 claim[,] . . . the claim is said to be ‘grounded in fraud’ or to ‘sound in fraud,’ and the

14 pleading of that claim as a whole must satisfy the particularity requirement of Rule 9(b).”

15 Vess, 317 F.3d at 1103-04.

16 Defendant argues that the complaint alleges a unified fraudulent course of conduct,

17 and therefore all causes of action fail to comply with Rule 9(b) because Plaintiffs do not

18 specifically identify what representations they relied on, where they saw each

19 representation, when they saw each representation, and how the representations were

20 deceptive. (Dkt. No. 6-1 at 14.) Plaintiffs respond that their UCL claim under the

21 unlawful and unfair prongs survive because they not grounded in fraud. (Dkt. No. 12 at

22 19-21.) Further, they contend their allegations more than meet the Rule 9(b)

23 requirements. (Id.)

24 The Court questions Defendant’s assertion that Plaintiffs’ allegations concern a

25 unified fraudulent course of conduct so that Rule 9(b) applies to all causes of action. As

26 noted above, Plaintiffs allege two theories of liability. One is an illegal products theory,

27 which does not appear to sound in fraud, and the second is a false or misleading

28 advertisement claim which are fraud claims that must comply with Rule 9(b).

1 Nonetheless, the Court concludes Plaintiffs have not complied with the specificity

2 requirement under Rule 9(b) on the fraud claims and grants Plaintiffs leave to amend.

3 The complaint alleges that Plaintiff Corbett purchased the Sambucol Black Elderberry

4 Capsules, Sambucol Black Elderberry Syrup Original, and Sambucol Black Elderberry

5 Gummies from April 2018 through April 2020 on Amazon and at CVS Pharmacy. (Dkt.

6 No. 1, Compl. ¶ 79.) Prior to purchasing these products, Corbett relied on Defendant’s

7 materially misleading representations on the Products’ packaging and labeling, the

8 Sambucol website, and Amazon’s website, including, among other statements,

9 Defendant’s claims that its elderberry ingredient was developed by a virologist, has been

10 clinically and scientifically tested, and has been used in clinical studies. (Id.) Corbett’s

11 decision to purchase Defendant’s Products was based on claims that they had been

12 clinically and scientifically tested and the Products’ ability to support her immune system

13 and reduce cold symptoms. (Id. ¶ 82.)

14 Plaintiff Luciano purchased Sambucol Black Elderberry Gummies at Walgreens,

15 more than a year ago. (Id. ¶ 86.) Prior to purchasing the Products, Luciano saw and

16 relied on Defendant’s materially misleading representations on the Products’ packaging

17 and labeling and in television commercials, including, among other statements, that the

18 Products were clinically and scientifically tested. (Id.) Luciano’s decision to purchase

19 Defendant’s Products was also based on claims that they had been clinically and

20 scientifically tested and the Products’ ability to support her immune system and reduce

21 cold symptoms. (Id. ¶ 89.)

22 Plaintiff Dobbs purchased Sambucol Black Elderberry Gummies from August

23 2019 to April 2020 through Amazon. (Id. ¶ 93.) Prior to purchasing the Sambucol

24 products, Dobbs relied on Defendant’s materially misleading representations on the

25 Products’ packaging and labeling, television commercials, and websites including

26 Defendant’s claims that its Elderberry ingredient were clinically and scientifically tested

27 and had been used in clinical studies. (Id.) Dobbs’ decision to buy the Products was

28 directly impacted by misleading representations that the Elderberry Products were

1 clinically and scientifically tested and the Products’ ability to support his immune system.

2 (Id. ¶ 96.)

3 On the allegations for misleading statements and false advertising, the Court

4 concludes they do not comply with Rule 9(b). First, on the “when”, Plaintiffs only allege

5 when they purchased Defendant’s Products but fail to specify when they saw and relied

6 on the alleged misrepresentations or misleading advertisements or labeling. Plaintiffs

7 must identify a time period when they saw the false advertisements. See Interserve, Inc.

8 v. Fusion Garage PTE Ltd., No. C-095812-RS-PSG, 2011 WL 500497, at *3 (N.D. Cal.

9 Feb. 9, 2011) (denying a motion to dismiss where allegations concerning “the purported

10 fraud [were] limited to a narrow window of time”); Griffin v. Green Tree Serv., LLC, 166

11 F. Supp. 3d 1030, 1057 n.63 (C.D. Cal. 2015) (one-month time period was sufficient to

12 plead the “when” of a fraudulent misrepresentation) McCann v. Jupina, Court, Case

13 No.16-cv-03244-JSC, 2017 WL 1540719, at *2 (N.D. Cal. Apr. 28, 2017) (nine month

14 time range when misrepresentations occurred fail to satisfy Rule 9(b)); Hirata Corp. v.

15 J.B. Oxford & Co., 193 F.R.D. 589, 598 (S.D. Ind. 2000) (“[Plaintiff] cannot expect

16 simply to rest on its broad assertion that the fraud occurred over a period of six

17 months.”). Further, on the “where”, Plaintiffs must specify where they saw each of the

18 alleged false misrepresentations. See Stanwood v. Mary Kay, Inc., 941 F. Supp. 2d 1212,

19 1220 (C.D. Cal. 2012) (finding that plaintiff failed to meet Rule 9(b) pleading standards

20 when she failed to point to the “particular advertisements or promotional materials that

21 she was personally exposed to”); Goldsmith v. Allergan, Inc., CV 09-7088 PSG (Ex),

22 2011 WL 2909313, (C.D. Cal. 2011) (finding that plaintiff failed to plead fraud cause of

23 action because he failed to specify the specific television ads on which he relied).

24 Next, on the “what”, while Plaintiffs properly allege certain specific

25 misrepresentations they relied on such as “clinically and scientifically tested”, the

26 Products’ “ability to support her immune system and reduce cold symptoms”, the

27 Products were “developed by a virologist” and “used in clinical studies”, they also

28 indicate these were just examples and necessarily imply there were other statements.

1 (Dkt. No. 1, Compl. ¶¶ 79, 89, 93.) Therefore, in their amended complaint, if Plaintiffs

2 seek to proceed on other misrepresentations not alleged, they must specify what these

3 other misrepresentations are in order to satisfy Rule 9(b). Accordingly, because Plaintiffs

4 has not sufficiently alleged the “what, when and where” of the alleged

5 misrepresentations, the Court GRANTS Defendant’s motion to dismiss the fraud based

6 claims under Rule 9(b).

7 Finally, Defendant also argues for dismissal of the consumer fraud claims based on

8 a challenge to the “scientifically tested” label because at best they challenge the quality of

9 Defendant’s substantiation which is barred in California. (Dkt. No. 6-1 at 16.) Plaintiff

10 opposes arguing that the “scientifically tested” labels are false. (Dkt. No. 12 at 23.)

11 Under California Business and Professions Code section 17508, challenges to lack

12 of substantiation are left to the Attorney General and other prosecuting authorities while

13 private plaintiffs have the burden of proving that advertising is actually false or

14 misleading. Nat'l Council Against Health Fraud v. King Bio Pharm., Inc., 107 Cal. App.

15 4th 1336, 1344–45 (2003) (“private plaintiffs are not authorized to demand substantiation

16 for advertising claims”). Therefore, “[c]laims that rest on a lack of substantiation, instead

17 of provable falsehood, are not cognizable under the California consumer protection

18 laws.” Bronson v. Johnson & Johnson, Inc., No. C 12-04184 CRB, 2013 WL 1629191,

19 at *8 (N.D. Cal. Apr. 16, 2013). The holding in King Bio was reaffirmed in Kwan where

20 the Ninth Circuit held that “California law does not provide for a private cause of action

21 to enforce the substantiation requirements of California's unfair competition and

22 consumer protection laws.” Kwan v. SanMedica Int'l, 854 F.3d 1088, 1091 (9th Cir.

23 2016). In order to allege a consumer fraud claim, a private plaintiff must establish the

24 claims are false or misleading by citing to “testing, scientific literature, or anecdotal

25 evidence.” Id. at 1097 (quoting King Bio, 107 Cal. App. 4th at 1348).

26 A claim can survive a lack of substantiation challenge by, for example, alleging

27 studies showing that a defendant’s statement is false. In re Clorox Consumer Litig., 894

28 F. Supp. 2d 1224, 1232-33 (N.D. Cal. 2012) (denying defendant’s motion to dismiss on a

1 lack of substantiation challenge where the plaintiffs alleged two scientific studies directly

2 contradicted the defendant's advertising). Moreover, “Plaintiff could allege that one or

3 more of the authorities alluded to actually studied or tested the [defendant’s product] and

4 found that it does not [deliver the promised result], or that Plaintiff herself did not

5 experience such [a result] when using the product, or that a study exists somewhere

6 demonstrating that [the result] is categorically impossible to achieve [ ]” Kwan, 854 F.3d

7 at 1091.

8 Here, the complaint alleges that the Products’ labels state that they have been

9 “scientifically tested” but there are no published studies that test the Products and

10 therefore, they have not been scientifically tested. (Dkt. No. 1, Compl. ¶¶ 69, 71.)

11 Moreover, clinical studies of Defendant’s proprietary extract have not conclusively

12 established that the Products are in fact effective, making the “scientific testing”

13 representation misleading. (Id. ¶ 74.)

14 A claim that the product has not been scientifically tested or clinical studies have

15 not conclusively established that Defendant’s Products are effective must be dismissed

16 for lack of substantiation. See Kwan, 854 F.3d at 1096 (falsely implying health benefits

17 were clinically proven by scientific proof by label “clinically tested” and claim that

18 “growth hormone levels are associated with certain health benefits” falsely implied

19 product was based on scientific proof were summary and did not demonstrate falsehood

20 of the claims); Engel v. Novex Biotech, LLC, 689 Fed. Appx. 510, 510–11 (9th Cir. Apr.

21 21, 2017) (“allegations that defendant's marketing claims are not supported by any

22 reliable clinical trials and that a comprehensive search could not produce any publication

23 to support claims . . . do not support a finding that the advertising claims are actually

24 false, only that they lack substantiation.”); Tubbs v. AdvoCare Int’l, LP, 2017 WL

25 4022397, at *6 (C.D. Cal. Sept. 12, 2016) (“no genuine scientific research” to support

26 Defendant’s advertising was impermissible lack of substantiation claim). Accordingly,

27 the Court additionally GRANTS dismissal of the UCL, FAL and CLRA causes of action

28 to the extent they are based on the “scientifically tested” claims.

1 / / /

2 / / /

3 C. Breach of the Implied Warranty of Merchantability

4 Defendant argues that the implied warranty claim fails for lack of privity. (Dkt.

5 No. 6-1 at 16-17.) Plaintiffs respond that vertical privity is not required because they are

6 third-party beneficiaries. (Dkt. No. 12 at 24-25.)

7 The complaint alleges that “Plaintiffs and the Class Members purchased the

8 Elderberry Products manufactured and marketed by Defendant by and through

9 Defendant’s authorized sellers for retail sale to consumers, or were otherwise expected to

10 be the third-party beneficiaries of Defendant’s contracts with authorized sellers, or

11 eventual purchasers when bought from a third party.” (Dkt. No. 1, Compl. ¶ 190.)

12 The California Commercial Code “implies a warranty of merchantability that

13 goods ‘[a]re fit for ordinary purposes for which such goods are used.’” Birdsong v.

14 Apple, Inc., 590 F.3d 955, 958 (9th Cir. 2009) (quoting Cal. Com. Code § 2314(2)(c)).

15 “Under California Commercial Code section 2314, . . . a plaintiff asserting breach of

16 warranty claims must stand in vertical contractual privity with the defendant.” Clemens

17 v. DaimlerChrysler Corp., 534 F.3d 1017, 1023 (9th Cir. 2008); All West Elecs., Inc. v.

18 M–B–W, Inc., 64 Cal. App. 4th 717, 725 (1998) (“The general rule is that privity of

19 contract is required in an action for breach of either express or implied warranty and that

20 there is no privity between the original seller and a subsequent purchaser who is in no

21 way a party to the original sale.”); Anthony v. Kelsey–Hayes Co., 25 Cal. App. 3d 442,

22 448 (1972) (“It is settled law in California that privity between the parties is a necessary

23 element to recovery on a breach of an implied warranty of [merchantability or] fitness for

24 the buyer's use, with exceptions not applicable here.”). “A buyer and seller stand in

25 privity if they are in adjoining links of the distribution chain.” Clemens, 534 F.3d at

26 1023. An “end consumer” who “buys from a retailer is not in privity with a

27 manufacturer.” Id.

28

1 In Clemens, the Ninth Circuit identified a number of specific exceptions to the

2 privity rule such as cases when a “plaintiff relies on written labels or advertisements of a

3 manufacturer” and other “special cases involving foodstuffs, pesticides, and

4 pharmaceuticals, and where the end user is an employee of the purchaser.” Id. at 1023

5 (citing Burr v. Sherwin Williams Co., 42 Cal. 2d 682, 695-96 (1954); Windham at Carmel

6 Mountain Ranch Ass'n v. Superior Ct., 109 Cal. App. 4th 1162, 1169 (2003); Fieldstone

7 Co. v. Briggs Plumbing Prods., Inc., 54 Cal. App. 4th 357, 369 (1997); Gottsdanker v.

8 Cutter Labs., 182 Cal. App. 2d 602, 608 (1960)). A direct dealing exception to the

9 privity requirement has also been recognized by the court of appeal in U.S. Roofing, Inc.

10 v. Credit Alliance Corp. 228 Cal. App. 3d 1431, 1442 (1991). Cardinal Health 301, Inc.

11 v. Tyco Electronics Corp.,169 Cal. App. 4th 116, 138-39 (2008) (applying direct dealing

12 exception). The Ninth Circuit noted that California “has painstakingly established the

13 scope of the privity requirement under [ ] section 2314, and a federal court sitting in

14 diversity is not free to create new exceptions to it.” Clemens, 534 F.3d at 1024.

15 Before and after the Ninth Circuit ruling in Clemens, district courts in California

16 have been split on whether an exception to the privity requirement exists for a breach of

17 implied warranty of merchantability claim when a plaintiff can show that he or she was a

18 third-party beneficiary of a contract between the defendant and a third party. Compare

19 Zeiger v. WellPet LLC, 304 F. Supp. 3d 837, 854 (N.D. Cal. 2018) (recognizing split in

20 authority but adopting third-party beneficiary exception); In re MyFord Touch Consumer

21 Litig., 46 F. Supp. 3d 936, 984 (N.D. Cal. 2014) (“the Court concludes that the third-

22 party beneficiary exception remains viable under California law.”); In re Sony Vaio

23 Computer Notebook Trackpad Litig., No. 09CV2109 BEN (RBB), 2010 WL 4262191, at

24 *3 (S.D. Cal. Oct. 28, 2010) (finding that the plaintiffs had plausibly pleaded that the

25 exception applied when they purchased a Sony laptop from Best Buy, which they alleged

26 was an authorized Sony retailer and service facility); Kearney v. Hyundai Motor Am., No.

27 SACV09-1298-JST MLGX, 2010 WL 8251077, at *10 (C.D. Cal. Dec. 17, 2010) with

28 Skiathitis v. Nyko Techs., Inc., No. 18-3584, 2018 WL 6427360, at *11 (C.D. Cal. Sept.

1 12, 2018) (“The applicability of the third-party beneficiary exception to retail consumers

2 like Plaintiffs is far from settled, but the Court concludes that the best reading of

3 California law is that the exception does not apply.”); Xavier v. Philip Morris USA, Inc.,

4 787 F. Supp. 2d 1075, 1083 (N.D. Cal. 2011) (finding that the exception does not apply

5 because “[n]o reported California decision has held that the purchase of a consumer

6 product may dodge the privity rule by asserting that he or she is a third-party beneficiary

7 of the distribution agreements linking the manufacturer to the retailer who ultimately

8 made the sale”); Anunziato v. eMachines, Inc., 402 F. Supp. 2d 1133, 1141 (C.D. Cal.

9 2005) (third-party beneficiary exception does not allow a consumer who purchased a

10 laptop from BestBuy.com to bring a breach of implied warranty claim against the laptop

11 manufacturer).

12 It is notable that “no published decision of a California court has applied this [third

13 party beneficiary exception] doctrine in the context of a consumer claim against a product

14 manufacturer.” Loomis v. Slendertone Distrib., Inc., 420 F. Supp. 3d 1046, 1089 (S.D.

15 Cal. 2019) (quoting In re Seagate Tech. LLC Litig., 233 F. Supp. 3d 776, 787 (N.D. Cal.

16 2017)); see also Xavier v. Philip Morris USA, Inc., 787 F. Supp. 2d 1075, 1083 (N.D Cal.

17 2011) (“No reported California decision has held that the purchaser of a consumer

18 product may dodge the privity rule by asserting that he or she is a third-party beneficiary

19 of the distribution agreements linking the manufacturer to the retailer who ultimately

20 made the sale.”)

21 District courts that have adopted the third-party beneficiary exception theory rely

22 on Gilbert Fin. Corp. v. Steelform Contracting Co., 82 Cal. App. 3d 65, 69-70 (1978). In

23 that case, the court of appeal reversed the trial court’s dismissal of the breach of implied

24 warranty claim for lack of privity made against a roofing sub-contractor and held that the

25 plaintiff could bring such action for breach of an implied warranty of fitness against the

26 sub-contractor because he, the owner of a building who was not named in the contract,

27 was the intended third-party beneficiary of the contract between the contractor and the

28 roofing subcontractor. Id. at 69-70. The court of appeal noted that it did not have to

1 decide the privity issue because the plaintiff was a third-party beneficiary of the contract

2 between the contractor and sub-contractor and could therefore sue for breach of the

3 implied warranty of fitness. Id. at 69. Gilbert is specific to its facts and has limited

4 bearing on this case. While courts are split on recognition of the third-party beneficiary

5 exception to the privity requirement, the cases that recognize it require a plaintiff to show

6 that he or she was a third-party beneficiary of a contract between the defendant and a

7 third party. In re NVIDIA GPU Litig., No. C 08-04312 JW, 2009 WL 4020104, at *7

8 (N.D. Cal. Nov. 19, 2009) (exception to the privity requirement for a breach of implied

9 warranty of merchantability claim if a plaintiff can show that he was a third party

10 beneficiary of a contract between the defendant and a third party); In re Nexus 6P Prod.

11 Liab. Litig., 293 F. Supp. 3d 888, 924 (N.D. Cal. 2018) (“Huawei concedes that the

12 relevant states allow plaintiffs to bring implied warranty claims in the absence of privity

13 if the plaintiff shows that he was a beneficiary to a contract between the defendant and a

14 third party.”)

15 Here, Plaintiffs allege that they “were otherwise expected to be the third-party

16 beneficiaries of Defendant’s contracts with authorized sellers, or eventual purchasers

17 when bought from a third party.” (Dkt. No. 1, Compl. ¶ 190.) This allegation does not

18 satisfy the pleading requirement for a third party beneficiary exception to the privity

19 requirement. Accordingly, the Court GRANTS Defendant’s motion to dismiss the beach

20 of implied warranty of merchantability claim.

21 D. Dismissal of Claims on Products Plaintiffs Never Bought

22 Defendant next argues that Plaintiffs’ claims should be narrowed to only those

23 Products purchased by Plaintiffs and seeks dismissal of Products not purchased by

24 Plaintiff for lack of standing. (Dkt. No. 6-1 at 17.) Plaintiffs respond that because

25 Defendant made identical misrepresentation concerning all Elderberry Products, they

26 have standing under the prevailing view in the Ninth Circuit. (Dkt. No. 12 at 25-27.)

27 The prevailing view in the Ninth Circuit is to allow class action plaintiffs to bring

28 claims for products they did not purchase “as long as the products and alleged

1 misrepresentations are substantially similar.” Miller v. Ghirardelli Chocolate Co., 912 F.

2 Supp. 2d 861, 869 (N.D. Cal. 2012) (noting that the rulings of majority of the courts have

3 carefully analyzed the question). There must be substantial similarity between the

4 products at issue or the alleged misrepresentations must be similar across product lines.

5 Id. “[T]he critical inquiry seems to be whether there is sufficient similarity between the

6 products purchased and not purchased.” Astiana v. Dreyer's Grand Ice Cream, Inc., No.

7 C-11-2910 EMC, 2012 WL 2990766, at *11 (N.D. Cal. July 20, 2012); see Anderson v.

8 Jamba Juice Co., 888 F. Supp. 2d 1000, 1006 (N.D. Cal. 2012) (“If there is a sufficient

9 similarity between the products, any concerns regarding material differences in the

10 products can be addressed at the class certification stage.”).

11 In Anderson v. Jamba Juice Co., the district court held that the plaintiff, who

12 purchased several flavors of at-home smoothie kits labeled “All Natural,” had standing to

13 bring claims on behalf of purchasers of other flavors because the products were

14 sufficiently similar and because the “same alleged misrepresentation was on all of the

15 smoothie kit[s] regardless of flavor.” 888 F. Supp. 2d 1000, 1006 (N.D. Cal. 2012). In

16 contrast, in Miller, the court dismissed claims on the four products the plaintiff did not

17 purchase because not only were the products different, baking chips, three drink powders,

18 and wafers but the labeling of the products was also different. Miller, 912 F. Supp. 2d at

19 870-71.

20 Here, the Products, at issue, are similar to the extent they all contain elderberry but

21 the products come in different forms either in syrup, gummies, capsules, tablets,

22 lozenges, powder, and drops. (Dkt. No. 1, Compl. ¶ 1.) Because Plaintiffs allege

23 uniformity in the representation on the packaging as well as marketing, (Dkt. No. 1,

24 Comp. ¶¶ 9, 21, 40), at this stage of the proceedings, the Court DENIES Defendant’s

25 motion to dismiss the claims on the Products Plaintiffs did not purchase.5

26

27

5 In the same vein, Defendant also argues that the claims on products Plaintiffs never saw are subject to

28

1 / / /

2 / / /

3 E. Motion to Dismiss and Motion to Strike Nationwide Class Allegation

4 Defendant, relying on Mazza v. American Honda Motor Co., 666 F.3d 581 (9th

5 Cir. 2012), moves to dismiss and moves to strike the nationwide class claims.6 (Dkt. No.

6 6-1 at 18-21.) Plaintiffs respond that to rule on this issue at the motion to dismiss stage is

7 premature because the parties have not conducted discovery to develop the facts of the

8 case and identify differences in various state laws. (Dkt. No. 12 at 30.) Further, with

9 discovery, Plaintiff could narrow or define the class at the class certification stage “in

10 such a way that it makes any purported state law differences immaterial.” (Id.)

11 In this case, the complaint seeks to certify a nationwide class, (Dkt. No. 1, Compl.

12 ¶ 100), and alleges a violation of the UCL as well of breach of express warranty and

13 breach of implied warranty on behalf of the nationwide class. (Dkt. No. 1, Compl. ¶¶

14 112, 176, 186.)

15 In Mazza, the Ninth Circuit held that the district court “abused its discretion in

16 certifying a class under California law that contained class members who purchased or

17 leased their car in different jurisdictions with materially different consumer protection

18 laws.” Mazza, 666 F.3d at 590. After conducting California’s three-step governmental

19 interest test, id., it held that under “the facts and circumstance of this case,” each “class

20 member’s consumer protection claim should be governed by the consumer protection

21 laws of the jurisdiction in which the transaction took place.” Id. at 594.

22

23

24

25 dismissal based on Products never bought by Plaintiffs. Thus, for the same reasons, the Court DENIES

Defendant’s motion to dismiss the claims for product Plaintiffs never saw.

26 6 On this issue, while Defendant presents several arguments, that is, that non-resident class members

cannot pursue a claim under the California UCL, court should strike the nationwide class allegations,

27 plaintiffs fail to establish the requisite elements for class certification and certification is not appropriate

when disparate laws of multiple state must be applied, all arguments relate to dismissal of the

28

1 Since Mazza, district courts are divided on whether dismissal of a nationwide class

2 is appropriate at the motion to dismiss stage. Compare In re Clorox Consumer

3 Litigation, 894 F. Supp. 2d 1224, 1237 (N.D. Cal. 2012) (“Since the parties have yet to

4 develop a factual record, it is unclear whether applying different state consumer

5 protection statutes could have a material impact on the viability of Plaintiffs claims”);

6 Forcellati v. Hyland’s, Inc., 876 F. Supp. 2d 1155, 1159 (C.D. Cal. 2012) (“[I]t would be

7 premature to speculate about whether the difference in various states' consumer

8 protection laws are material in this case.”); Zapata Fonseca v. Goya Foods Inc., Case No.

9 16-CV-02559-LHK, 2016 WL 4698942, at *3 (N.D. Cal. Sept. 8, 2016) (denying

10 dismissal of nationwide class because Mazza, which was decided at the class certification

11 stage and not on a motion to dismiss, depended heavily on a detailed choice-of-law

12 analysis that compared how various states' consumer protection laws applied to the facts

13 of the plaintiffs' claims and the defendant failed to conduct such an analysis in its motion

14 to dismiss); Sonner v. Schwabe N. Am., Inc., No. EDCV 15-01358-VAP (SPx), 2015 WL

15 13307076, at *8 (C.D. Cal. Nov. 18, 2015) (“A detailed choice-of-law analysis would be

16 inappropriate” on a motion to strike); Valencia v. Volkswagen Grp. of America Inc., Case

17 No. 15–cv–00887–HSG, 2015 WL 4760707, at *1 (N.D. Cal. Aug. 11, 2015) (“Whether

18 California law differs from the laws of other states in a way that is material to this

19 litigation is not a proper inquiry at the pleading stage.”) (emphasis in original) with Glenn

20 v. Hyundai Motor Am., SACV 15-2052 DOC (KESx), 2016 WL 3621280, at *5 (C.D.

21 Cal. June 24, 2016) (“The Court notes that while Mazza was decided at the class

22 certification stage, the decision ‘applies generally and is instructive when addressing a

23 motion to dismiss.’”) (quoting Frezza v. Google, Inc., CV 5:12-237 RMW, 2013 WL

24 1736788, at *6 (N.D. Cal. Apr. 22, 2013)); Davison v. Kia Motors America, Inc., No. 15-

25 cv-0239-CJC (RNBx), 2015 WL 3970502, at *2 (C.D. Cal. 2015) (conducting choice of

26 law analysis at motion to dismiss). “Mazza did not purport to hold that nationwide

27 classes are, as a matter of law, uncertifiable under California's consumer protection

28 laws.” Forcellati, 876 F. Supp. 2d at 1159.

1 While the Mazza analysis may ultimately apply to the analysis in this case as it

2 ||involved a defendant in California and concerned the applicability of California’s

3 ||consumer fraud statutes to plaintiffs who lived outside the state, Plaintiffs should be

4 || given an opportunity through discovery to demonstrate that a nationwide class is viable at

5 || the class certification stage. Moreover, Defendant has failed to provide a sufficient

6 || choice of law analysis on California’s consumer fraud statutes and breaches of express

7 implied warranty claims. Accordingly, the Court DENIES Defendant’s motion to

8 strike and motion to dismiss the nationwide class allegation.

9 ||F. Leave to Amend

10 In the event the Court dismisses any cause of action, Plaintiffs seek leave to

11 |;}amend. (Dkt. No. 12 at 20.) Where a motion to dismiss is granted, leave to amend

12 ||should be granted “unless the court determines that the allegation of other facts consistent

13 || with the challenged pleading could not possibly cure the deficiency.” DeSoto, 957 F.2d

14 at 658 (quoting Schreiber Distrib. Co., 806 F.2d at 1401). That is, where leave to amend

15 || would be futile, the Court may deny leave to amend. See Desoto, 957 F.2d at 658;

16 || Schreiber, 806 F.2d at 1401. In this case, because Plaintiff can cure the deficiencies in

17 complaint, the Court GRANTS Plaintiff leave to file a first amended complaint. See

18 || De Soto, 957 F.2d at 658.

19 Conclusion

20 Based on the above, the Court GRANTS in part and DENIES in part Defendant’s

21 motion to dismiss with leave to amend. The Court also DENIES Defendant’s motion to

22 ||/strike. Plaintiff shall file an amended complaint within 20 days of the filed date of this

23 || order.

24 IT IS SO ORDERED.

25 ||Dated: June 17, 2021 <=

27 United States District Judge

28