Allen v. Similasan Corp.

• Decision Date: 30 March 2015
• Docket Number: Case No. 12–cv–376 BAS JLB.
• Parties: Kim ALLEN, Lainie Rideout, and Kathleen Hairston, on behalf of themselves, all others similarly situated, and the general public, Plaintiff, v. SIMILASAN CORPORATION, Defendant.
• Court: U.S. District Court — Southern District of California

96 F.Supp.3d 1063

Kim ALLEN, Lainie Rideout, and Kathleen Hairston, on behalf of themselves, all others similarly situated, and the general public, Plaintiff

v.SIMILASAN CORPORATION, Defendant.

Case No. 12–cv–376 BAS JLB.

United States District Court, S.D. California.

Signed March 30, 2015.

Beatrice Skye Resendes, Ronald Marron, Alexis M. Wood, Law Offices of Ronald A. Marron, Deborah S. Dixon, John P. Fiske, John H. Gomez, Gomez Trial Attorneys, San Diego, CA, for Plaintiff.

Daniel J. Herling, Michelle Gillette, Mina Nasseri, Bridget A. Moorhead, Mintz Levin Cohn Ferris Glovsky and Popeo PC, San Diego, CA, for Defendant.

ORDER: (1) GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; AND (2)DENYING PLAINTIFFS' MOTION TO STRIKE DEFENDANT'S SUMMARY JUDGMENT MOTION [ECFs 103, 109]

CYNTHIA BASHANT, District Judge.

On February 10, 2012, Plaintiff Kim Allen sued Defendant Similasan Corporation, claiming Defendant made misrepresentations on the labels of its homeopathic products. On October 11, 2013, Plaintiffs Kim Allen, Lainie Rideout, and Kathleen Hairston filed the operative Third Amended Complaint (“TAC”, ECF 58). Allen was then dismissed with prejudice on December 30, 2013. ECF 69. Six causes of action remain against Defendant: (1) violation of the California Consumers Legal Remedies Act (“CLRA”, Cal. Civ.Code §§ 1750 et seq. ); (2) violation of the California Unfair Competition Law (“UCL”, Cal. Bus. & Prof.Code §§ 17200 et seq. ); (3) violation of the California False Advertising Law (“FAL”, Cal. Bus. & Prof.Code §§ 17500 et seq. ); (4) breach of express warranty; (5) breach of the implied warranty of merchantability; and (6) violation of the Magnuson–Moss Warranty Act (“MMWA”, 15 U.S.C. §§ 2301 et seq. ). ECF 58.

Defendant moved for summary judgment, or alternatively, summary adjudication. Hairston and Rideout (“Plaintiffs”) opposed. ECF 116. Defendant filed a Reply in Support. ECF 124. The Court finds this motion suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). For the following reasons, the Court GRANTS IN PART and DENIES IN PART Defendant's motion. ECF 103.

BACKGROUND

Defendant is a Colorado corporation “that produces, markets, and sells homeopathic products throughout the United States[,]” including in California TAC ¶ 10. Defendant sells its products in hundreds of retail stores, including major chains such as Walgreens, Target, CVS, Rite–Aid, and Walmart. Id. At issue here are six over-the-counter products: Earache Relief (now called Ear Relief), Nasal Allergy Relief, Sinus Relief, Pink Eye Relief (now called Irritated Eye Relief), Dry Eye Relief, and Allergy Eye Relief (collectively, the “Products”). Id. at ¶ 2. Each Product's label bears claims about the respective Product's effectiveness, as well as other assertions, including “Eye Doctor Recommended,” “Pharmacist Recommended,” and “Preservative Free.” Id. at 14:15–27¹ , 17:26–18:8, ¶¶ 78, 88, 99, 107. Plaintiffs claim that every Product label bears a “100% Natural Active Ingredients” representation. Id. at 14:15–16, 17:26–27, ¶¶ 78, 88, 99, 107.

Plaintiffs purchased Defendant's Products, claiming they did so in reliance on Defendant's labels. TAC ¶¶ 122–123. Rideout states she purchased Nasal Allergy Relief and Sinus Relief each two to three times per year from 2000 to 2010. Id. at ¶ 60, 16:22–27. Rideout ceased purchasing Defendant's Products in October 2010 after researching them online, which led her to discover that “the Product[s] did not provide the benefits, characteristics and qualities as advertised[.]” Id. at ¶ 62, 17:3–8. Between 2009 and 2010, Hairston claims she purchased Allergy Eye Relief, Earache Relief, Dry Eye Relief, and Pink Eye Relief each at least twice per year. Id. at ¶¶ 75, 84, 96, 104. In October 2010, Hairston claims she concluded that the Products did not work for their respective purposes, based on her use of the Products as directed by their labels. Id. at ¶¶ 76, 85, 97, 105.

Plaintiffs claim Defendant's Products are “worthless” because they do not work, describing several of the Products as mere “high-priced water.” TAC 15:3–17, 18:11–22, ¶¶ 81, 93, 100, 108, 120, 129. Plaintiffs also claim that Products marketed as “Preservative Free” or “100% Natural” are falsely and deceptively labeled because each Product contains artificial preservatives. Id. at 15:3–17, 18:11–22, ¶¶ 81, 100, 108; Pls.' Opp'n 1. Additionally, Plaintiffs claim that Earache Relief and Pink Eye Relief are illegal to sell. Id. at ¶¶ 91, 110.

LEGAL STANDARD

Federal courts sitting in diversity “apply state substantive law and federal procedural law.” Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1090 (9th Cir.2001) (citing Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996) ). Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a) ; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). An issue of fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; George v. Morris, 736 F.3d 829, 834 (9th Cir.2013). A dispute is “genuine” if “a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505 ; see also FreecycleSunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir.2010). “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) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505 ).

A party seeking summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. The moving party without the ultimate burden of persuasion at trial can satisfy this burden in two ways: (1) by producing “evidence negating an essential element of the nonmoving party's claim or defense;” or (2) by demonstrating that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.

Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir.2000) ; Celotex, 477 U.S. at 322–23, 106 S.Ct. 2548 ; Fed.R.Civ.P. 56(c)(1). Evidence may be offered “to support or dispute a fact” on summary judgment only if it “could be presented in an admissible form at trial.” Fraser v. Goodale, 342 F.3d 1032, 1036–37 (9th Cir.2003) ; see also Fed.R.Civ.P. 56(c)(2). However, at the summary judgment stage, the focus is not on the admissibility of the evidence's form, but on the admissibility of its contents. Id. If the moving party meets it burden, the burden then shifts to the non-moving party to produce admissible evidence showing a genuine issue of material fact. Nissan Fire, 210 F.3d at 1102–03 ; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

“[I]n granting summary judgment a district court cannot resolve disputed questions of material fact; rather, that court must view all of the facts in the record in the light most favorable to the non-moving party and rule, as a matter of law, based on those facts.” Albino v. Baca, 747 F.3d 1162, 1173 (9th Cir.2014). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge [when] ruling on a motion for summary judgment [.]” Anderson, 477 U.S. at 255, 106 S.Ct. 2505.

DISCUSSION

I. Plaintiffs' Motion to Strike

Plaintiffs moved to strike Defendant's motion for summary judgment (ECF 109) on August 21, 2014, arguing the motion was premature because merits discovery has not yet opened. However, in the January 23, 2014 scheduling Order, the court stated (1) that discovery was open as to all claims and defenses and not limited to class certification issues and (2) the scheduling order did not preclude Defendant from seeking summary judgment before the Court ruled on Plaintiffs' class certification motion. Order 2–3, ECF 70. Thus merits discovery has been open, and Plaintiffs were on notice that that Defendant could move for summary judgment prior to Plaintiffs' motion for class certification. The Court therefore DENIES Plaintiffs' motion to strike. ECF 109.

II. Statute of Limitations

A. Plaintiffs' Claims Relate Back to the Original Complaint

Defendant argues that all of Rideout's and Hairston's claims are time-barred by the statute of limitations because their claims do not relate back to the original complaint. Def.'s Mot. 7.

Federal Rule of Civil Procedure 15(c) governs whether an amendment to a pleading relates back. “Rule 15(c) does not deal specifically with whether amendments adding plaintiffs ‘relate back’ to the date of the original complaint, but the rules regarding adding defendants are applied by analogy.” Corns v. Laborers Int'l Union of N. Am., No. 09–CV–4403, 2014 WL 1319363, at *5 (N.D.Cal. March 31, 2014) (citing Immigrant Assistance Project of L.A. Cnty. Fed'n of Labor (AFL–CIO) v. I.N.S., 306 F.3d 842, 857 (9th Cir.2002) ). An amendment adding a plaintiff relates back to the date of the original pleading when “(1) the original complaint gave the defendant adequate notice of the claims of the newly proposed plaintiff; (2) the relation back does not unfairly prejudice the defendant; and (3) there is an identity of interests between the original and newly proposed plaintiff.” Id. (quoting In re Syntex Corp. Sec. Litig., 95 F.3d 922, 935 (9th Cir.1996) ) (internal quotation marks omitted).

i. Adequate Notice

“[N]otice must be determined based on the contents of the complaint alone.” Willner v. Manpower...