EXHIBIT G 

Case: 1:11-cv-07972 Document #: 49-1 Filed: 10/18/12 Page 1 of 6 PageID #:291
UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV 11-04153 CAS Date September 19, 2011

Title LOREAN BARRERA v. PHARMAVITE, LLC

Present: The Honorable CHRISTINA A. SNYDER

RITA SANCHEZ LAURA ELIAS N/A

Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

Patricia N. Syverson Rene P. Tatro

Juliet A. Markowitz

Proceedings: DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S

FIRST AMENDED COMPLAINT UNDER FRCP 8(a), 9(b) &

12(b)(6)

DEFENDANT’S MOTION TO STRIKE ALLEGATIONS

FROM PLAINTIFF’S FIRST AMENDED COMPLAINT (filed

8/15/2011)

I. INTRODUCTION

On May 13, 2011, plaintiff Lorean Barrera (“Plaintiff” or “Barrera”) filed the

instant putative class action suit in connection with the marketing and sales of defendant

Pharmavite’s “TripleFlex” dietary supplements. On June 13, 2011, plaintiff filed a first

amended class action complaint (“FAC”). The FAC alleges: (1) violation of the

Consumers Legal Remedies Act (“CLRA”) under California Civil Code §1750 et seq.;

(2) violation of the Unfair Competition Law (“UCL”) under California Business and

Professions Code §17200 et seq.; and (3) breach of express warranty. FAC. at 1.

On August 12, 2011, Pharmavite filed the instant motions to dismiss and to strike

allegations from plaintiff’s FAC. Plaintiff opposed the motions on August 26, 2011. 

Pharmavite replied on September 2, 2011. After carefully considering the arguments of

both parties, the Court finds and concludes as follows. 

II. BACKGROUND

Pharmavite manufactures, markets and sells a line of joint health dietary

CV-90 (06/04) CIVIL MINUTES - GENERAL Page 1 of 5

Case 2:11-cv-04153-CAS -AGR Document 31 Filed 09/19/11 Page 1 of 5 Page ID #:342

Case: 1:11-cv-07972 Document #: 49-1 Filed: 10/18/12 Page 2 of 6 PageID #:292
UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV 11-04153 CAS Date September 19, 2011

Title LOREAN BARRERA v. PHARMAVITE, LLC

supplements called “TripleFlex,” which it promotes as a cure for the major symptoms of

arthritis. FAC ¶ 1. On each TripleFlex product label, Pharmavite claims TripleFlex will

improve joint “comfort, mobility and flexibility” by “replenishing the body with key

nutrients needed for daily maintenance and renewal of your joints.” Id. ¶ 3.

Plaintiff alleges that she purchased one of Pharmavite’s products because she was

deceived by Pharmavite’s representations that its products were effective arthritis

remedies. Id. ¶ 10. Plaintiff also contends that she and the class members were deceived

by defendant because after affirmatively asserting its products would relieve the major

symptoms of arthritis, defendant failed to inform plaintiff and the class members that it

did not possess competent scientific evidence to support its health benefit claims. Id. ¶

11. Plaintiff further asserts that she and the class members “have been and others will

continue to be deceived or misled by [d]efendant’s deceptive representations . . . .” Id. ¶

33.

III. LEGAL STANDARD

A. Federal Rule of Civil Procedure 12(b)(6)

A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in a

complaint. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not

need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his

‘entitlement to relief’ requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v.

Twombly, 127 S. Ct. 1955, 1964-65 (2007). “[F]actual allegations must be enough to

raise a right to relief above the speculative level.” Id. at 1965.

In considering a motion pursuant to Fed. R. Civ. P. 12(b)(6), a court must accept as

true all material allegations in the complaint, as well as all reasonable inferences to be

drawn from them. Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998). The complaint

must be read in the light most favorable to the nonmoving party. Sprewell v. Golden

State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Parks Sch. of Bus., Inc. v. Symington,

51 F.3d 1480, 1484 (9th Cir. 1995). However, a court need not accept as true

unreasonable inferences or conclusory legal allegations cast in the form of factual

allegations. Sprewell, 266 F.3d at 988; W. Mining Council v. Watt, 643 F.2d 618, 624

(9th Cir. 1981). 

CV-90 (06/04) CIVIL MINUTES - GENERAL Page 2 of 5

Case 2:11-cv-04153-CAS -AGR Document 31 Filed 09/19/11 Page 2 of 5 Page ID #:343

Case: 1:11-cv-07972 Document #: 49-1 Filed: 10/18/12 Page 3 of 6 PageID #:293
UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV 11-04153 CAS Date September 19, 2011

Title LOREAN BARRERA v. PHARMAVITE, LLC

Dismissal pursuant to Rule 12(b)(6) is proper only where there is either a “lack of a

cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal

theory.” Balistreri v. Pac. Police Dept., 901 F.2d 696, 699 (9th Cir. 1990).

For all of these reasons, it is only under extraordinary circumstances that dismissal

is proper under Rule 12(b)(6). United States v. City of Redwood City, 640 F.2d 963, 966

(9th Cir. 1981).

As a general rule, leave to amend a complaint which has been dismissed should be

freely granted. Fed. R. Civ. P. 15(a). However, leave to amend may be denied when “the

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

could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture

Co., 806 F.2d 1393, 1401 (9th Cir. 1986); see Lopez v. Smith, 203 F.3d 1122, 1127 (9th

Cir. 2000). 

IV. DISCUSSION

A. Lack of Substantiation 

“Because there is no private remedy for unsubstantiated advertising [under

California law], [a] [p]laintiff may bring an action, if at all, only for false or misleading

advertising. Thus [a] plaintiff can only maintain [its] action against [a] [d]efendant by

pleading facts to support an allegation that [the] [d]efendant’s advertising claims are false

or misleading.” Fraker v. Bayer, 2009 WL 5865687, *8 (E.D. Cal. Oct. 6, 2009).

Pharmavite argues plaintiff’s FAC pursuant should be dismissed to Fed. R. Civ. P.

12(b)(6) because plaintiff’s claims are premised on a “lack of substantiation” theory. 

Mot. at 6–11. 

Specifically, Pharmavite contends that plaintiff fails to allege Pharmavite’s claims

about the TripleFlex products are actually false and misleading, but rather merely asserts

that Pharmavite’s product claims are not substantiated by “competent scientific

evidence.” Id. at 6–7. Relying on Chavez v. Nestle, 2011 WL 2150128, *5 (C.D. Cal.

May 19, 2011), in which this Court dismissed a claim where the plaintiffs failed to allege

facts challenging health claims made by a juice distributor, Pharmavite argues plaintiff’s

complaint should be dismissed for failure to state a claim upon which relief may be

CV-90 (06/04) CIVIL MINUTES - GENERAL Page 3 of 5

Case 2:11-cv-04153-CAS -AGR Document 31 Filed 09/19/11 Page 3 of 5 Page ID #:344

Case: 1:11-cv-07972 Document #: 49-1 Filed: 10/18/12 Page 4 of 6 PageID #:294
UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV 11-04153 CAS Date September 19, 2011

Title LOREAN BARRERA v. PHARMAVITE, LLC

granted. Id. at 9. According to Pharmavite, just as in Chavez, “[p]laintiff has not

articulated what about [defendant’s] [advertising] claim is deceptive beside the fact that it

is supposedly unsubstantiated.” Id.

Plaintiff responds that Pharmavite recasts her case as a “lack of substantiation

case” when in reality if “read as a whole Plaintiff does plead that the advertising

statements are ‘false or misleading.” Opp. at 7. Plaintiff cites such contentions in her

FAC as Pharmavites claims are “false, misleading and/or likely to deceive the consuming

public” FAC ¶ 61, and Pharmavites claims are “factually baseless.” FAC ¶ 21.1

The Court finds that while some of the claims in the complaint conclusorily state

that Pharmavite’s product labels make false and misleading statements, when considered

as a whole as it must be for the purposes of a 12(b)(6) motion, see Tellabs, Inc. v. Makor

Issues & Rights, Ltd., 551 U.S. 308, 322 (2007), the complaint primarily alleges the

claims on defendant’s labels lack substantiation. Among others, the FAC alleges that

“defendant represented (and continues to represent) . . . that it had competent scientific

evidence to back up these assertions when it did not possess such evidence” ¶ 8, that

“[d]efendant failed to inform [p]laintiff . . . that it did not possess competent scientific

evidence to support these health benefit claims,” ¶ 12, and that “there is no competent

scientific evidence that taking glucosamine . . . results in the body metabolizing it . . . .” ¶

22. As in Chavez, the “primary focus” of the plaintiff’s FAC can only be said to be “a

supposed lack for substantiation for the advertised attributes” of Pharmavite’s products. 

1

 Additionally, plaintiff cites a number of cases which she claims demonstrate her

claims are not improper lack of substantiation claims. Opp. at 8–10. However, the Court

finds these cases distinguishable, and that rather than prove plaintiff’s claims are valid,

these cases suggest just the opposite. For example, plaintiff relies substantially on Rikos

v. Proctor & Gamble Co., No. 1:11-cv-226, 2011 WL 1707209 (S.D. Ohio 2011) in

which the court declined to find the plaintiff’s claims were premised on a lack of

substantiation theory even though the plaintiff’s complaint alleged defendant’s claims

lacked scientific evidence. The key difference between the Rikos case and the present

matter however, is that in Rikos the defendant’s advertisements claimed defendant’s

products had “clinically proven” health benefits. Here, Pharmavite has made no such

claims.

CV-90 (06/04) CIVIL MINUTES - GENERAL Page 4 of 5

Case 2:11-cv-04153-CAS -AGR Document 31 Filed 09/19/11 Page 4 of 5 Page ID #:345

Case: 1:11-cv-07972 Document #: 49-1 Filed: 10/18/12 Page 5 of 6 PageID #:295
UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV 11-04153 CAS Date September 19, 2011

Title LOREAN BARRERA v. PHARMAVITE, LLC

2011 WL 2150128 at *5.2

Accordingly, the Court DISMISSES plaintiffs’ complaint without prejudice. 

V. CONCLUSION

In accordance with the foregoing, the Court GRANTS defendant’s motion to

dismiss without prejudice. Plaintiff shall have twenty (20) days from the date of this

order to file an amended complaint.

IT IS SO ORDERED.

00 : 02

Initials of 

Preparer

RS

2 Because the Court finds plaintiff’s claims are premised on an improper “lack of

substantiation” theory, the Court declines to address Pharmavite’s other arguments or its

motion to strike. However, the Court finds without merit Pharmavite’s contention that

plaintiff’s knowledge of Pharmavite’s alleged misconduct would bar plaintiff from

seeking an injunction in the context of a class action. See Chavez, 2011 WL 2150128 at

*6.

CV-90 (06/04) CIVIL MINUTES - GENERAL Page 5 of 5

Case 2:11-cv-04153-CAS -AGR Document 31 Filed 09/19/11 Page 5 of 5 Page ID #:346

Case: 1:11-cv-07972 Document #: 49-1 Filed: 10/18/12 Page 6 of 6 PageID #:296