Scott v. Metabolife Intern., Inc.

• Decision Date: 29 January 2004
• Docket Number: No. C041029.,C041029.
• Citation: 115 Cal.App.4th 404,9 Cal.Rptr.3d 242
• Parties: Joan SCOTT, Plaintiff and Respondent, v. METABOLIFE INTERNATIONAL, INC., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

9 Cal.Rptr.3d 242

115 Cal.App.4th 404

Joan SCOTT, Plaintiff and Respondent, v. METABOLIFE INTERNATIONAL, INC., Defendant and Appellant.

No. C041029.

Court of Appeal, Third District.

January 29, 2004.

Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller and R. Gaylord Smith, San Diego, for Defendant and Appellant.

Robinson, Calcagnie & Robinson, Sharon J. Arkin, Mark P. Robinson, Jr., Newport Beach; Lopez, Hodes, Restaino, Milman, Skikos & Polos, Ramon R. Lopez, Newport Beach, Steven J. Skikos; Andrews & Thornton, Anne Andrews and

John Thornton for Plaintiff and Respondent.

ROBIE, J.

Plaintiff Joan Scott sued Metabolife International, Inc., (Metabolife) for personal injuries she alleges she suffered after taking its product — Metabolife 356. Metabolife appeals the denial of its special motion to strike the complaint under Code of Civil Procedure section 425.16.¹ Metabolife contends the trial court erred in concluding section 425.16 did not apply. We conclude Scott's personal injury causes of action "arise from" Metabolife's act of manufacturing and selling of the allegedly defective product that caused Scott's injury, not from any act in furtherance of Metabolife's right of petition or free speech under the United States or California Constitutions. Scott also included a false advertising cause of action. We conclude Metabolife's for-profit advertising of the safety and efficacy of its product does not concern an issue of public interest under section 425.16. We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A The Complaint

Boiled down to its essential relevant allegations, Scott's complaint claims she used Metabolife 356 and suffered a stroke as a direct result. From this kernel of relevant information, Scott alleges four personal injury causes of action, and one cause of action for false advertising: (1) strict products liability; (2) breach of express and implied warranties; (3) negligence; (4) deceit; and (5) unfair competition and false advertising in violation of Business and Professions Code sections 17200 and 17500.

1. General Allegations

More generally, in the "PARTIES, JURISDICTION AND VENUE" section of her complaint, Scott alleges Metabolife manufactures, distributes and sells dietary supplements, including Metabolife 356, to members of the public. Scott claims Metabolife 356 contains ephedrine and caffeine, which together can cause serious injuries. Scott alleges at the time of its manufacture and sale to Scott, Metabolife 356 was unsafe and defective to consumers using that product for its intended purposes because it contained these two compounds. Scott generally alleges the manufacturer knew this when they sold the product and further knew the product presented potentially a substantial and unreasonable risk of harm to consumers, including Scott. Scott purchased Metabolife 356 manufactured and sold by Metabolife.

In the "FACTUAL BACKGROUND" portion of her complaint, Scott alleges Metabolife misled users about the product and failed to adequately warn them about the potential serious dangers of the product they knew or should have known about. Scott alleges Metabolife markets Metabolife 356 by misrepresenting its efficacy, inducing millions of consumers to use it. Further, Metabolife represented Metabolife 356 increased energy, aided in diet and weight loss, and was a safe, natural metabolic enhancer that decreased fat, increased lean body mass, and increased energy during exercise.

Based on these representations of safety and efficacy, Scott purchased the product, read the label, and took it on a daily basis. Using the product in its intended and foreseeable manner, Scott then suffered a stroke as a direct result of using Metabolife 356. Scott claims she was ignorant of the stroke risk associated with Metabolife 356. Had she known of the risks inherent in the product, she would not have taken the product.

Scott alleges Metabolife earned profits while concealing the potential hazards of the product from the public. Scott alleges Metabolife knew of the various potential dangers of Metabolife 356.

2. Causes of Action

a. Strict Liability

Scott's first cause of action is for strict liability. In the key allegation of this cause of action, Scott alleges Metabolife 356 is "unsafe and defective to consumers using said product for its advertised purposes and in a reasonably foreseeable manner" because the product contained ephedrine and caffeine. Scott asserts she sustained a stroke as a result of using this defective product. In addition to this, Scott alleges Metabolife knew its product was dangerous and failed to warn the public of the dangers of this product or to take steps to remedy the defects. Further, Scott alleges Metabolife knew Metabolife 356 would be used by consumers without their investigation of its advertising claims, and in reliance on those claims, those consumers took the product. Scott further alleges the failure of Metabolife to warn consumers was willful and wanton and justified the award of punitive damages.

b. Breach of Warranty

In her second cause of action for breach of express and implied warranties, Scott alleges Metabolife expressly and implicitly represented Metabolife 356 was safe, reasonably fit for its intended purpose and was of marketable quality, when, in fact, it was not. As a result of the breach of these warranties, Scott suffered personal injuries.

c. Negligence

In her third cause of action for negligence, Scott alleges Metabolife had a "duty not to unreasonably make and sell a potentially dangerous product and deliberately [withhold] issuing warnings" about it. Scott alleges Metabolife breached this duty by failing to warn of the dangers of Metabolife 356 and failed to provide adequate safeguards to prevent the injuries sustained by Scott. As a result of Metabolife's negligence, Scott was injured.

d. Deceit

In her fourth cause of action, Scott alleges: Metabolife deceived consumers, including her, by falsely representing Metabolife 356 was safe and the product would "increase energy, reduce body fat and increase muscle mass." The labeling on the bottles fails to reveal the actual contents of the product. Metabolife falsely labeled the product as standardized. Metabolife's sales and marketing campaign for Metabolife 356 willfully deceived Scott and the general public about the health risks of the product. Metabolife suppressed the truth with the intent to mislead and defraud Scott knowing they would not use Metabolife 356 if they knew the truth. As a result of this conduct, Scott was injured.

e. False Advertising

Finally, Scott's fifth cause of action alleges Metabolife violated Business and Professions Code sections 17200 and 17500 by the above actions. Specifically, Metabolife's conduct was false advertising in violation of certain specific Health and Safety Code provisions. Scott sought injunctive, restitutionary, and other equitable relief and attorney fees on behalf of the general public against Metabolife for this conduct.

As is evident from our description of Scott's complaint, it needlessly repeats the relevant charging allegations throughout its 13 pages. However, it does not stop there. Scott's complaint also contains a number of other allegations that are simply inconsequential fluff. It is these allegations that appear to have invited the instant section 425.16 motion like the wolf invited Little Red Riding Hood into grandma's house. Had plaintiff's counsel more carefully drafted the complaint, restricting it only to the facts relevant to each cause of action, counsel might have avoided this motion entirely.

For example, in the "INTRODUCTION," Scott alleges that in 1994 Congress deregulated the dietary supplement industry. Thus dietary supplements have appeared in supermarkets and grown into a $15 billion a year industry. Scott alleges manufacturers, including Metabolife, market these products without scientific testing for safety or efficacy. Further, Scott contends the industry does not maintain a comprehensive reporting system for adverse health effects associated with their products and consumers are not provided with reliable information about the products and specifically about Metabolife 356.

Scott also alleges the Food and Drug Administration (FDA) has received adverse health reports from consumers of these supplements that document death and disability from serious health conditions. Scott states the FDA commissioned a report that found the use of dietary supplements that contain PPA alkaloids were the probable cause of health conditions that in turn cause death and disability.

B Motion to Strike

Metabolife brought a motion to strike Scott's complaint under section 425.16. Metabolife argued the lawsuit arose from its advertising, labeling, marketing, and promoting of its product and those advertising activities were constitutionally protected speech about an issue of public interest as defined by section 425.16. Thus, it argued Scott needed to establish a probability of success on the merits or her complaint should be stricken.

In support of its motion, Metabolife submitted documents showing the Metabolife 356 label which states, in part, "Natural Herbs Metabolife 356 Dietary Supplement," "Herbal formula to enhance your DIET and provide Energy" and "Independently Laboratory Tested For SAFETY." Further, Metabolife submitted documents concerning the Government Accounting Office and the FDA's discussion and potential regulation of dietary supplements containing ephedrine alkaloids. Metabolife also submitted materials supplied by the Ephedra Education Council and laws from other states concerning the regulation of the dosage levels of ephedrine.

Scott opposed the motion. Scott argued the focus and objective of her lawsuit was Metabolife's conduct in manufacturing and selling Scott an allegedly defective product. Scott also submitted documents in an attempt to establish a probability of success on the merits of her...