Lavie v. Procter & Gamble Co., A093393.

• Court: California Court of Appeals
• Writing for the Court: Kline
• Citation: 105 Cal.App.4th 496,129 Cal.Rptr.2d 486
• Parties: Zion LAVIE et al., Plaintiffs and Appellants, v. PROCTER & GAMBLE CO. et al., Defendants and Respondents.
• Docket Number: No. A093393.,A093393.
• Decision Date: 17 January 2003

129 Cal.Rptr.2d 486

105 Cal.App.4th 496

Zion LAVIE et al., Plaintiffs and Appellants, v. PROCTER & GAMBLE CO. et al., Defendants and Respondents.

No. A093393.

Court of Appeal, First District, Division 2.

January 17, 2003.

Certified for Partial Publication.^*

Milberg Weiss Bershad Hynes & Lerach, Dennis Stewart, William S. Dato, Timothy G. Blood, Sheri Pym, Kevin K. Green, San Diego; Steyer Lowenthal Boodrookas & Walker, Allan Steyer, Carols A. Alvarez, D. Scott Macrae, for Plaintiffs and Appellants.

Haight, Brown & Bonesteel, Jules S. Zeman, Los Angeles; Drinker, Biddle & Reath, David Fleming, Los Angeles, and William Hanssen for Defendants and Respondents.

Bill Lockyer, Attorney General, Richard M. Frank, Chief Assistant Attorney General, Herschel T. Elkins, Assistant Attorney General, Ronald A. Reiter and Seth E. Mermin, Deputy Attorneys General, as Amicus Curiae on behalf of Plaintiffs and Appellants.

KLINE, P.J.

Introduction

This appeal arises out of appellant's challenge to allegedly deceptive television commercials supporting the launch of Aleve, a non-prescription pain relief product developed, manufactured and marketed by respondents. Plaintiff-appellant Zion Lavie appeals from the judgment against him and in favor of defendants-respondents Procter & Gamble Co. (Procter & Gamble) Syntex Health Products, Inc. (Syntex), Procter-Syntex Health Products Company (Procter-Syntex), and others,¹ following a court trial upon appellant's action challenging television advertising supporting the launch of Procter-Syntex non-prescription pain reliever Aleve in the mid-1990s. Among other claims, appellant alleged the television advertising promoting Aleve violated the California unfair competition law (Bus. & Prof.Code, § 17200) (UCL) and this state's false advertising law (Bus. & Prof.Code, § 17500)² because the explicit claim of the ads that "Aleve is gentler to the stomach lining than aspirin" was false and/or likely to mislead members of the public and because the advertisements contained an implicit and false message that Aleve was gentle to the stomach and would not cause stomach upset. At the end of a 13-day bench trial, the trial court found in favor of respondents on all counts, including finding that respondents did not engage in unlawful, unfair or fraudulent business practices or unfair, deceptive or misleading advertising within the meaning of section 17200 or 17500. The court found the substantial weight of the evidence supported the conclusion that the phrase "Aleve is gentler to your stomach lining than aspirin" was a true statement and that the challenged ads were not likely to deceive reasonable consumers. The court also found that the ads did not target particularly gullible consumers and that the evidence did not show that a substantial number of consumers were deceived into thinking Aleve would not cause gastrointestinal side effects.

Appellant contends the judgment must be reversed as the court erred: (1) in employing the wrong methodology in determining what messages were conveyed by the commercial, relying upon its own intuition rather than viewing the ads from the vantage point of a reasonable consumer; (2) by disregarding evidence showing the messages were misleading and unsupported by the medical data; and (3) by disregarding evidence that these messages were impressed upon a significant number of consumers and were therefore likely to deceive the public. Appellant also contends that the evidence established defendants' conscious decision to communicate implied messages they knew would mislead many California consumers, and that such was an unfair business practice under section 17200. Finally, he argues that if the matter is reversed, the trial court on remand has discretion to enter restitution relief.

The Attorney General has filed an amicus curiae brief in this appeal, contending the likelihood of deception under the UCL must be measured by the standard of the "least sophisticated consumer" and that the trial court erred in using a "reasonable consumer" standard to determine whether the advertisements were likely to deceive the public.

We shall affirm the judgment.

The lawsuit.³

In June 1994, Aleve was brought to the market as a new addition to over-the-counter pain relief products. Appellant, aged 47, is a computer programmer and manager. He testified that he took Aleve in mid-December 1994 for relief of cold symptoms. Twelve years before, he had been diagnosed with an ulcer and his doctor had told him to avoid aspirin. The ulcer had been inactive. Appellant decided to try Aleve after seeing some newspaper and television ads. He took Aleve over the weekend and on the following Monday was hospitalized overnight with serious gastrointestinal bleeding. His doctor told him not to use Aleve and appellant presented evidence the bleeding was caused by his ingestion of Aleve.

Appellant wrote to Procter & Gamble about his problem, stating he believed the company should be working on revising its warning label. Procter & Gamble responded by offering him his purchase price plus interest and requesting the name of his doctor, so the matter could be looked into. Plaintiff did not accept return of the purchase price. He sued respondents on various claims centering on the allegation that the television advertising for Aleve was false, misleading and/or likely to mislead. He asserted claims both individually and on behalf of the general public for violation of the UCL (§ 17200 et seq.) and the false advertising act (§ 17500). He also asserted claims for common law fraud, negligent misrepresentation, and violation of the Consumers Legal Remedies Act (Civ.Code, § 1750 et seq.). Although he eventually waived any claims for personal injury, appellant sought restitution for himself and the general public with respect to his UCL and false advertising claims in the amount of all sales of Aleve to customers in California (a sum ranging from approximately $104 million to $140 million) and injunctive relief in the form of corrective advertising. Appellant also sought actual and punitive damages under his common law and Consumers Legal Remedies Act claims. Finally, he sought to have any monetary relief awarded under the UCL or the Consumers Legal Remedies Act enhanced up to treble the amount awarded pursuant to Civil Code section 3345.

At the end of a 13-day bench trial, the Honorable Isabella H. Grant found against appellant and in favor of respondents on all claims, including finding that defendants did not engage in unlawful, unfair or fraudulent business practices or unfair, deceptive or misleading advertising within the meaning of sections 17200 or 17500. Judgment was entered on October 11, 2000, and this timely appeal followed. Appellant challenges the judgment against him on his UCL and false advertising claims only.

I. California laws prohibiting unfair competition (§ 17200 et seq.) and false advertising (§ 17500).^**

II. "Reasonable consumer" versus "least sophisticated consumer" standard.

A. Amicus brief raising issue of the standard.

In an amicus brief filed in this appeal, the Attorney General argues that the trial court committed reversible error in failing to use a "least sophisticated consumer" standard rather than a "reasonable consumer" standard to determine whether the advertisements were likely to mislead or deceive the public. It is analytically necessary to address this issue first, for if we agreed with the Attorney General, the additional issues raised on this appeal likely would be rendered moot.

Both parties and the trial court agreed below that the "reasonable consumer" standard applied and appellant did not raise this claim of error on appeal. Ordinarily, "[a]micus curiae must take the case as they find it." California Assn. for Safety Education v. Brown (1994) 30 Cal App.4th 1264, 1274-1275, 36 Cal.Rptr.2d 404; (accord Eisenberg et al., Cal. Prac. Guide: Civil Appeals & Writs (The Rutter Group 2001) 119:210.1.) "`"[A]n appellate court will consider only those questions properly raised by the appealing parties. Amicus curiae must accept the issues made and propositions urged by the appealing parties, and any additional questions presented in a brief filed by an amicus curiae will not be considered [citations]."'" (Younger v. State of California (1982) 137 Cal.App.3d 806, 813-814, 187 Cal.Rptr. 310;) see Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 711, fn. 1, 209 Cal.Rptr. 682, 693 P.2d 261 (cone. opn. of Bird, C.J.); ( E.L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 510-511, 146 Cal.Rptr. 614, 579 P.2d 505.)

However, the rule is not absolute. An appellate court has discretion to consider new issues raised by an amicus. (See Fisher v. City of Berkeley, supra, 37 Cal.3d 644, 654-655, 209 Cal.Rptr. 682, 693 P.2d 261 [Supreme Court considered argument for invalidating rent control ordinance raised by amicus]; E.L. White, Inc. v. City of Huntington Beach, supra, 21 Cal.3d 497, 510-511, 146 Cal.Rptr. 614, 579 P.2d 505; Eisenberg et al., Cal. Prac. Guide: Civil Appeals & Writs, supra, § 9:210.1.) Although we do not depart lightly from the general rule, we are persuaded that this case is one in which it is not only permissible, but also appropriate to do so. The Supreme Court has justified consideration of a new issue on appeal for the first time "when the issue posed is purely a question of law based on undisputed facts, and involves important questions of public policy. [Citations.]" (Fisher v. City of Berkeley, supra, at pp. 654-655, fn. 3, 209 Cal.Rptr. 682, 693 P.2d 261.)

The standard to be used in evaluating whether an advertisement is deceptive under the UCL is purely a question of law and certainly has important public policy implications for California consumers and businesses. Moreover, the Attorney General has a particular interest in the interpretation of sections 17200 and 17500, as these sections "are the basic tools of the...