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Order granting motion to dismiss for lack of standing in favor of Celsius
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to "Burn up to 100 Calories and/or more" in each can.
conswners by marketing a purported weight loss drink product, also called "Celsius," which is alleged
Holdings, Inc. (hereinafter, "Celsius") has been defrauding hundreds of thousands of California
others similarly situated (hereinafter, "plaintiff' or "Mr. Fletcher"), contends that Defendant Celsius
DATE ACTION FILED: 6/4/10TRlAL DATE: 1123/12
ORDER ON: (1) MOtION FORSUMMARY JUDGMENT OR, INTHE ALTERNATIVE, SUMMARYADJUDICATION, BASED UPONSTANDING AND FDAPREEMPTION; AND (2) MOTIONFOR A FINDING OF NO MERIT
)))))))))))))))))
. CELSIUS HOLDINGS, INC., a Nevadacorporation; and DOES 1-250, Inclusive,
Defendants.
vs.
Plaintiff,
RYAN FLETCHER, individually, and onbehalf of all others similarly situated,
OR\G\NAL ALEDSEP 01 LOllLOSANGEL~~~.,.I".....1"\(' , '~\ \p':R,'~_'~" ...
_,...._"..
I~
In this yet-to-be-certified class action, Plaintiff Ryan Fletcher, individually and on behalf of all
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES, CENTRAL JUDICIAL DISTRICT
CASE NO. BC439 055Department 14Judge: Terry Green
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complaint, on the basis that he lacks standing to pursue these causes of action and that they are
Defendant Celsius moves this court for summary judgment, per CCP §437c, on plaintiffs
1. Motion for Summary Judgment or, in the Alternative, Summary Adjudication. Based UponStanding and FDA Preemption
considered. Having taken both motions under submission, this court now rules as follows:
parties stipulated that Defendant Celsius' No Merit Motion could be advanced to that date and
Defendant Celsius' MSJIMSA was heard on August 10, 2011; during oral argument, the
Defendant Celsius' MSA, Improper Class Action Motion, and No Merit Motion to October 3, 2011.
Defendant Celsius' MSJIMSA and plaintiff's Discovery Motion to August 10, 2011 and continued
Production of Documents (hereinafter, "Discovery Motion"». This court continued the hearing on
Defendant Celsius' Further Responses to [his] Special Interrogatories, Set One, and Requests for
Proper" (hereinafter, "Improper Class Action Motion") and plaintiff's "Motion for Order to Compel
(hereinafter, "MSA"), its "Motion for a Finding that a Class Action Cannot be Maintained and is Not
(i.e., which also included its "Motion for Summary Adjudication of Plaintiffs' FAL and UCL Claims"
Celsius came in ex parte and requested a continuance on all motions set for hearing on August 1, 2011
"MSJIMSA"). Both were initially set for hearing on August 1,2011. On July 29,2011, Defendant
Alternative, Summary Adjudication, Based Upon Standing and FDA Preemption" (hereinafter,
Merit Motion"). On May 10,2011, plaintiff filed his "Motion for Summary Judgment, or in the
On April 18, 2011, plaintiff filed his "Motion for a Finding of No Merit" (hereinafter, "No
Section 17500, et seq." against Defendants Celsius and DOES 1-250. Trial is set for January 23,2012.
Professions Code Section 17200, et seq.; and (3) Violation of California Business & Professions Code
Violation of California Consumer Legal Remedies Act; (2) Violation of California Business &
On June 4, 2010, plaintiff filed his "Class Action Complaint for Damages Based on: (1)1
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1This court notes that the "Violation of California Consumer Legal Remedies Act," the "Violation of California Business& Professions Code Section 17200, et seq." and the "Violation of California Business & Professions Code Section 17500,et seq." are set forth as the first, second and third causes of action, respectively, in plaintiffs complaint filed June 4, 2010.Defendants, then, have erroneously labeled plaintiff's "Unfair Competition under the UCL" cause of action as his first,when, in actuality, it is his second cause of action. They have erroneously labeled plaintiff's "False Advertising Under theFAL" cause of action as his second, when, in actuality, it is his third cause of action. They have erroneously labeledplaintiff's "Violation of the CLRA" cause of action as his third, when, in actuality, it is his first cause of action. This court
by means of a motion for summary adjudication or summary judgment (Civ. Code, § 1781, subd. (c)),
Consumer Legal Remedies Act." "Although a CLRA cause of action cannot be summarily disposed of
vehicle for seeking to dispose of plaintiff s First Cause of Action for "Violation of California
At the outset, it must be noted that Defendant Celsius' motion is not the appropriate statutory
summary adjudication is GRANTED as to Issues Nos. 1& 2, and DENIED as to Issue No.3.
Defendant Celsius' Motion for Summary Judgment is DENIED; its alternate request for
are OVERRULED, for the reasons stated during oral argument.
As a preliminary matter, plaintiffs evidentiary objections to the Declaration of Irina Lorenzi
cause of action and (2) Plaintiffs cause of action is preempted by the FD&CA.
as a matter of law because the undisputed facts establish that (1) Plaintiff lacks standing to pursue this
Issue #3: Plaintiff s Third Cause of Action, for Violation of the CLRA, has no merit and fails
and
standing to pursue this cause of action and (2) Plaintiffs cause of action is preempted by the FD&CA;
merit and fails as a matter of law because the undisputed facts establish that (1) Plaintiff lacks
Issue #2: Plaintiffs Second Cause of Action, for False Advertising under the FAL, has no
standing to pursue this cause of action and (2) Plaintiffs cause of action is preempted by the FD&CA;
merit and fails as a matter of law because the undisputed facts establish that (1) Plaintiff lacks
CA"). Inthe alternative, Defendant Celsius seeks summary adjudication of the following issues:
Issue #1: Plaintiffs First Cause of Action, for Unfair Competition under the VCL 1, has no
preempted by the Food, Drug and Cosmetics Act, 21 U.S.C. §301 et seq. (hereinafter, the "FD&1
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"On the one hand, there is a provision in the Federal Trade Commission Act thatmakes it clear the Act doesn't preempt state law. Title 15 United States Codesection 57b(e) provides: 'Remedies provided in this section are in addition to, andnot in lieu of, any other remedy or right of action provided by State or Federallaw. '(Italics added.)
The Court left open, however, the possibility of conflict preemption:
impliedly preempted by the Federal Trade Commission Act (i.e., the "FTCA"), the FD&CA or by the
Dietary Supplemental Health and Education Act of 1994 (i.e., the "DSHEA").
complaint under the UCL; in doing so, it determined that plaintiff's claim was neither expressly nor
makers and distributors of two over-the-counter dietary supplements, to a nonprofit false advertising
1056, reversed the trial court's judgment of dismissal after sustaining the demurrer of defendants, the
Three Court of Appeal, in Consumer Justice Center v. Olympian Labs, Inc. (2002) 99 Cal.App.d'"
Defendant Celsius' FD&CA preemption argument is rejected. The Fourth District, Division
PreemptionA.
Celsius' No Merit Motion.
first cause of action, then, will instead be separately addressed in this court's analysis on Defendant
Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474-1475. The validity of plaintiff's
summary judgment and a motion for a no-merit determination. (Consumer Advocates, at p. 1359)."
'see no meaningful distinction in the choice' between dismissal of a cause of action after a motion for
Kagan v. Gibraltar Sav. & Loan Assn. (1984) 35 Cal.3d 582, 589, 597; Consumer Advocates v.
Echostar Satellite Corp. (2003) 113 Cal.App.a'" 1351, 1359-1362). One court commented that it could7
judgment and summary adjudication in deciding motions for no-merit determinations. (See, e.g.,
624). In practice, courts nevertheless have applied the standards applicable to motions for summary
determination). (Civ. Code, § 1781, subd. (c)(3); Olsen v. Breeze. Inc. (1996) 48 Cal.App.c'" 608,
it can be dismissed before trial on a motion for a determination that it is without merit (i.e., a no-merit1
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27will address plaintiff's causes of action in the order they are presented in this motion and will disregard, for purposes of
28 issuing its ruling, that defendants have mislabeled plaintiff's causes of action.4
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At the demurrer stage, allegations satisfying all parts of the section 17204 standing
requirement must be taken as true. Kwikset Corp. v. Superior Court (2011) 51 Cal. 4th310, 328, fn. 1.
[Citations.]' (Buckland [v. Threshold Enterprises, Ltd. (2007) 155 Cal.App.4th 798,]... 813." Id.
standing may be raised by demurrer or at any time in the proceeding, including at trial or in an appeal.
Cal.App.4th 1305, 1345. '''Because standing goes to the existence of a cause of action, lack of
v. Defenders of Wildlife (1992) 504 U.S. 555, 561)." Troyk v. Farmers Group, Inc. (2009) 171
18 .the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the
19 manner and degree of evidence required at the successive stages of the litigation. [Citations.]' (Lujan
requirements but rather an indispensable part of the plaintiffs case, each element must be supported in
Atlantic Finance Co. (1980) 105 Cal.App.3d 65, 71)." Blumhorst v. Jewish Family Services of Los
Angeles (2005) 126 Cal.App.c" 993, 1000. "Because elements for standing 'are not mere pleading
to sue is a threshold issue to be resolved before the matter can be reached on the merits. (Hernandez v.
With that said, plaintiff does not have standing to maintain this lawsuit. "A litigant's standing
StandingB.
ground.
federal regulations", the present action is not pre-empted, and summary judgment is denied on that
As this Court does not believe any relief fashioned in this case could possibly "defeat the purpose of
One would think the provision would be enough, but the defendants posit that evensuch a blanket 'savings' clause as 15United States Code section 57b(e) does not.mean there is no preemption if there is actual conflict. (See e.g., Geier v. AmericanHonda Motor Co., Inc. (2000) 529 U.S. 861.) In Geier. the federal Supreme Court .concluded there was a conflict between a state tort action for failing to equip a carwith a driver's side airbag. To allow the suit would defeat the purpose of federalregulations which were specifically intended to permit several different kinds ofsafety measures without requiring airbags. (See Geier, supra, 529 U.S. at p. 881)."Id. at 1061 (Emphasis theirs).
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25 2 Defendants also argue that plaintiff does not have standing as he cannot identify which commercial he relied upon informing his expectations. Assuming this is true, this presents a factual question, especially since there is a question if the
26 commercials he was shown at deposition constitute the entire universe of commercials shown in this area Moreover, someof the exhibits showing Celsius labels are different, making slightly different representations (e.g., compare plaintiff's
27 Exhibits "C"-"M"). It is unclear which of these plaintiff saw and relied upon. Some of these differences are important,such as Exhibit "K," which clearly shows Celsius to be used in conjunction with physical activity or "The Ultimate Gym
28 Partner."
unlawful, unfair, and fraudulent business acts." Korea Supply Co. v. Lockheed Martin Corp. (2003) 29
"Business and Professions Code section 17200 et seq. prohibits unfair competition, including
However, to have standing to bring this action, plaintiff must have suffered an "injury in fact?"
"34. Plaintiff has standing to pursue this claim, as Plaintiff has suffered an injury infact and has lost money as a result of Defendant's false advertising and unfair businesspractices. Specifically, prior to the filing of this action, Plaintiff purchased Celsiusfor his own personal use. In so doing, Plaintiff reviewed, believed, and relied uponeach of the preceding marketing claims and representations. These representationshad their intended effect - creating in Plaintiff the false belief that consumingCelsius would cause him to 'Burn up to 100 Calories 1and!or more per can, thuscausing him to lose weight. As detailed herein, this representation isfalse. Plaintiffdid not lose weight and could not have lost weight merely by drinking a can of Celsius.As a, result, each can of Celsius purchased by Plaintiff was entirely worthless to him.35. Defendant's business practices, as alleged herein, are fraudulent within themeaning of Business and Professions Code § 17200, et seq. because as a result of suchpractices, members of the public are likely to be deceived by the claims made withrespect to Celsius as set forth herein.36. Defendant's business practices, as alleged herein, are unfair within the meaningof Business and Professions Code §17200, et seq. because the harm caused to thepublic as a result of such practices far outweighs any benefit conferred.37. Defendant's business practices, as alleged herein, are unlawful withinthe meaning of Business and Professions Code §17200 et seq. because they constituteviolations of Business and Professions Code §17500, et seq. and California Civil Code(§ 1750 (,Consumer Legal Remedies Act'), as set forth herein." (Complaint, ~~ 34-37,8:3-23; emphasis added).
.Plaintiff has alleged, in pertinent part, that:
1. Violation of California Business & Professions Code Section 17200, et seq.
eventually to prove, their bare standing allegations." rd.
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However, "[a]t succeeding stages, it will be plaintiffs' obligation to produce evidence to support, and1
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"At this stage, these plaintiffs need only allege economic injury arising from relianceon Kwikset' s misrepresentations. According to the second amended complaint,(1) Kwikset labeled certain locksets with 'Made in U.S.A.' or a similar designation,(2) these representations were false, (3) plaintiffs saw and relied on the labels for theirtruth in purchasing Kwikset's locksets, and (4) plaintiffs would not have bought thelocksets otherwise. On their face, these allegations satisfy all parts of the section17204 standing requirement, as we shall explain. Simply stated: labels matter. Themarketing industry is based on the premise that labels matter, that consumers will choose
content oflabels is important:
Kwikset, which examined the issue of standing at the demurrer stage, instructs us that the
"As wehave said, 'Proposition 64 accomplishes its goals in relatively few words.' .(Californians for Disability Rights v. Mervyn's, LLC [2006] 39 Cal.4th [223]. ..228).Fewer than two dozen are at issue here: under the UCL, standing extends to 'aperson who has suffered injury in fact and has lost money or property as a result of .the unfair competition' (§ 17204),while under the false advertising law, in materiallyidentical language, standing extends to 'any person who has suffered injury in factand has lost money or property as a result of a violation of this chapter'(§ 17535)... [c]onsequently, the plain language of these clauses suggests a simple test:To satisfy the narrower standing requirements imposed by Proposition 64, a party mustnow (1) establish a loss or deprivation of money or property sufficient to qualify asinjury in fact, i.e., economic injury, and (2) show that the economic injury was theresult of, i.e., caused by, the unfair business practice or false advertising that is thegravamen of the claim." Id. at 321-322 (Emphasis theirs).
"injury in fact:"
"Actions for relief pursuant to this chapter shall be prosecuted exclusively in a courtof competent jurisdiction by the Attorney General or a district attorney or by acounty counsel authorized by agreement with the district attorney in actions involvingviolation of a county ordinance, or by a city attorney of a city having a population inexcess of 750,000, or by a city attorney in a city and county or, with the consent ofthe district attorney, by a city prosecutor in a city having a full-time city prosecutor inthe name of the people of the State of California upon their own complaint or upon .the complaint of a board, officer, person, corporation, or association, or by apersonwho has suffered injury infact and has lost money orproperty as a result of the unfaircompetition." (Emphasis added).
Most recently, in Kwikset, supra, 51 CalAth 310, the California Supreme Court explained
misleading advertising ... " Section 17204 states, in pertinent part, that:
include "any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or
Cal.4th 1134, 1143.Business & Professions Code § 17200 defines "unfair competition" to mean and
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admissible evidence to raise a triable issue of fact that, given plaintiff s unique circumstances, he has
Defendant has a right to demand, at the summary judgment stage, that plaintiff produce
designed to prevent.
This comes dangerously close to the precise type of "shakedown lawsuits" Proposition 64 was
pay plaintiffs attorney's fees.
create standing and an issue of fact and forcing a defendant to trial, where defendants may be forced to
whatever reason, failed to perform, hire an expert to opine of the product's shortcomings, thereby
beyond the reach of summary judgment. Any disappointed consumer can allege that a product, for
offers only opinions of the product generally, with no reference to plaintiff, it imposes strict liability
for weight gain - not the result plaintiff "desired to see" - coupled with an expert declaration that
boundaries. Itassumes that plaintiff s expectations are objectively reasonable. By imposing liability
The problem with this approach, however, is that it expands Kwikset beyond its intended
shortcomings of Celsius generally, standing is established.
12 testified to the "truthful allegation," and Dr. Lynn Willis supplied the expert opinions on the
failed to work as promised is a "merits issue" to be resolved by experts at trial. As plaintiff has
that, in taking the product he didn't see the effects that he desired to see." Whether or not the product
advertising. At oral argument, counsel concluded: "The only thing he (plaintiff) has to testify to is
"truthful allegation" that Plaintiff was deceived into buying a product that did not live up to its
Plaintiff reads Kwikset as standing for the proposition that standing is established only by a
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one product over another similar product based on its label and various tangible andintangible qualities they may come to associate with a particular source. (E.g., FTCv. Proctor & Gamble Co. (1967) 396 U.S. 568, 572 [noting the central role ofadvertising and sales promotion in generating market share, where the competingproducts are functionally identical].) An entire body oflaw, trademark law (see, e.g.,15 U.S.C. §1051 et seq. [Lanham Actj), exists to protect commercial and consumerinterests in accurate label representations as to source, because consumers rely on theaccuracy of those representations in making their buying decisions." Id. at 327-328.
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suffered an injury in fact. This requires that he show, not just that he spent money and was
disappointed, but that the fact he gained weight or failed to lose weight, given hisunique
circumstances, was due to some shortcoming of Defendant Celsius' product.
For the reasons cited herein, this was not done.
In Kwikset, the label promised a working lock which was "Made in the U.S.A." The lock
worked as promised. The "Made in the U.S.A." representation, however, was apparently false, as
some of the component parts were made or assembled in Taiwan or Mexico. The plaintiff there could
thus truthfully allege that, as to him, he was personally deceived because itwas important to him that
he buy all-American and these locks were not all-American. His payment of money was "caused by"
this deception; thus, it is true that it was not enough that the locks in Kwikset "worked as promised,"
because the deception had nothing to do with how the lock worked. Here, however, plaintiff must
show that, for him, Defendant Celsius' product did not work as promised; otherwise, its "advertising"
would not be "false" and would not have caused him to wrongfully part with his money. Each human
being is unique. Each lock is not. Standing is personal.
The question in this case, then, is what did the Celsius label "promise" that plaintiff as a
reasonable consumer could rely upon, and, did Defendant Celsius break this promise, causing plaintiff
to spend money, thus causing injury in fact?
Ordinarily, what a product "promises" on its label would be a question of fact. Here, however,
plaintiff has been very specific. The label promises that consumption of Celsius results in burning up .
to 100 calories per can; plaintiff opined that this was a promise that consumption of the product would
result in weight loss.
Is this the type of promise a reasonable consumer can rely on?
While it might be a question of fact if a reasonable consumer could justifiably rely on the
claim of burning 100 calories, there can by no question of fact regarding whether it is reasonable to
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3 It is obvious that plaintiff is a sophisticated consumer. Mr. Fletcher testified he played football in high school and isphysically active and that he followed a regiment of cardiovascular exercise and resistance ,training five to six days perweek in July 2009. He takes dietary supplements regularly and has been a longtime consumer of energy drinks, includingRockstar. He further testified that he understands the relationship between caloric consumption and weight loss and heunderstands that there is a difference between burning calories and losing weight.
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"The problem is that Hill's beliefs do not satisfy the reasonable consumer standard, asexpressed in the FTC guides (16 C.F.R. §260.7(a) (2011) [material implied claimsconveyed 'to reasonable consumers']) and as used in our state's consumer laws. Thereasonable consumer test used in the VCL and FAL derives from parallel parts of theFederal Trade Commission Act (15 U.S.C. §41 et seq.), which requires a plaintiff toshow potential deception of consumers acting reasonably in the circumstances- notjust any consumers. (Lavie v. Procter & Gamble Co. [2003] 105 Cal.AppAth [496,]atpp. 505-506.) Thus, for example, the standard is not a least sophisticated consumer(!4,_ at p. 504), unless the advertising is specifically targeted to such a consumer. @ atp.507). Nor do we test the impact on the unwary consumer (!4,_ at p. 508), although areasonable consumer 'need not be "exceptionally acute and sophisticated'" and mightnot 'necessarily be wary or suspicious of advertising claims.' (ld. at pp. 509-510.)'Rather, California courts consistently have looked to the ordinary consumer within thelarger population' (i4.:. at p. 510), and the reasonable consumer standard is also establishedfor the CLRA. (Consumer Advocates v. Echostar Satellite Corp. (2003) 113 Cal.AppAth1351, 1360). It follows, in these days of inevitable and readily available Internet criticismand suspicion of virtually any corporate enterprise, that a reasonable consumer also doesnot include one who is overly suspicious. 1
consumer standard:
organizations. The Court of Appeal affirmed, arguing that plaintiff failed to satisfy the reasonable
label misled her to believe the bottled water was approved as environmentally superior by third party
a consumer's false advertising suit in which the plaintiff claimed a green symbol on a water bottle
Division Two Court of Appeal faced a similar problem. There, the trial court sustained a demurrer to
In Hill v. Roll International Corporation, et al. (2011) 195 Cal.App.a'" 1295, the First District,
magic potion belongs back in Hogwarts and not in our court system.
would be nice to be able to drink a can, go about our business, lose weight and be forever slim, that
or losing weight depends upon a host of variables, such as caloric intake, exercise, stress, etc. While it
fulfilled its promise. Regardless, it is basic, and something we learn starting in childhood, that gaining
weight, just that it would bum up to 100 calories. Presumably, if it burnt 5 calories, it would have
conclude that drinking a can will result in losing weight. The product did not promise a loss of1
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4 Oddly, at no point does plaintiff state if the weight gain was muscle, fat, or a combination of the two. For the purpose ofthis motion, this court assumes the weight gain was fat, as a suit against Defendant Celsius alleging its consumption
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including stuffing, cranberry sauce and apple pie while drinking Celsius. (UMF No. 22). He testified
drinking Celsius. (UMF No. 20). He ate fattening Thanksgiving and Christmas holiday foods
consumption while drinking Celsius. (UMF No. 19). He never kept records of his weight while
He never measured the amount of calories he burned while drinking Celsius. (UMF No. 17). He never
Celsius. (UMF No. 15).He enjoyed the taste of Celsius and felt some energy boost. (UMFNo. 13).
Celsius consumption to one to two times per week until mid-January of 20 10 when he drank his last
when he completed the 14-week Fire Training Academy program. (UMF No. 14). He reduced his
Plaintiff drank one can of Celsius two to four times per week through mid-November, 2009
Plaintiff will never be able to prove if Celsius caused him to burn up to 100 calories per drink,
or that his weight gain was not due to his life style, with nothing to do with Celsius,"
bim, his parting of money to buy the product cannot be a Kwikset injury in fact.
Unless Plaintiff can show an issue of fact as to whether Celsius failed to work as promised for
evidence Defendant Celsius' product failed to perform for plaintiff as promised on the label?
reasonable consumer could justifiably rely on those representations, we then have to ask if there is any
Even if there were a question of fact regarding what the label promises and whether a
7 beyond that point.
6' unreasonable as a matter of law. Plaintiff's belief that the label promised weight loss reaches and goes
Hill is the same: At some point the consumer's interpretation of what a label promises becomes
While the specific federal statutes are different in this case than inHill, the lesson learned from3
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Does the greeri drop on Fiji water bottles convey to a reasonable consumer in thecircumstances that the product is endorsed for environmental superiority by the thirdparty organization? No." Id. at 1304.
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22 measured his metabolism while drinking Celsius. (UMF No. 18). He never measured his caloric
28 wrongfully caused him to gam muscle would be problematic.12
name "Fletcher" appears nowhere in his report.
plaintiff. At no point did he consider any testimony or declaration from Mr. Fletcher. In fact, the
Willis' declaration, while interesting reading, at no time attempts to apply his findings to
results obtained from Celsius. (Id. at ~~ 49,51 and 57).
28,53,57,59 and 61). Willis did note that there were variations among individuals with respect to the
Willis, produces little or no results in calorie burning. (Opposition, Declaration of Willis, 1M24,25,
finds fault with studies supporting Celsius' claims. Essentially, consumption of Celsius, according to
claims that Celsius will burn up to 100 calories and result in weight loss are basically overstated, and
Willis' declaration is a generic statement of the shortcoming of Celsius. Willis concludes that the .
The Declaration of Dr. Lynn R. Willis (hereinafter, "Willis") adds nothing to plaintiff's case.
The additional evidence plaintiff puts forth does not prove his case and will never change for
weight, without regard to life style.
Mere weight gain is not enough, as it would make Defendant Celsius strictly liable if one gains
consumed Celsius. (Rothman Dec., Exhibit "A," 160:9-18 and 161:14-19).
in any activity whatsoever if he burned more calories than he otherwise would have had he not
drinking two to four cans of Celsius and that he does not know ifhe drank Celsius and then engaged
Significantly, he testified that he did not know ifhe actually burned 200 to 400 calories from
or does not burn 100 calories per can." a4:. at 218:10-11).
"Rothman Dec."], Exhibit "A," 244:5-9). He also testified that he was "not 100 percent sure if it does
during the period he consumed Celsius. (Motion, Declaration of Joel B. Rothman [hereinafter,
that, while his weight increased 10 pounds, it also decreased two pounds after his initial weight gain
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l3the better.
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by any of Defendant Celsius' alleged statements,based upon the above undisputed facts. As
Plaintiff cannot demonstrate that he suffered any cognizable harm that was immediately caused
to wrongfully part with his money. He, thus, has suffered no injury and, accordingly, has no standing.
and, thus, cannot truthfully allege he was deceived by the product's label and that the label caused him
Plaintiff can never establish whether Defendant Celsius' product "worked as promised" or not
All plaintiff can truthfully prove here does not survive summary judgment.
would not survive demurrer.
the U.S.A., and what he got was a working lock, but he cannot be sure where it was made. That
This is akin to the plaintiff in Kwikset truthfully alleging he bought a lock supposedly made in
when he started drinking it.
for a period of months, and after the Thanksgiving and Christmas holidays, he weighed more than
can, and that maybe it worked as advertised and maybe not, but, all he knows is that after consuming it
allege" is that he bought Defendant Celsius' product because it promised up to 100 calories burned per
product's label. Here, based upon the evidentiary record, the best plaintiff could ever ''truthfully
locks were the same. Hence, plaintiff there could ''truthfully allege" that they were deceived by the
One would think that it would be easy to show whether or not the locks in Kwikset contained
consumption, nor even any explanation of why he gained or lost weight.
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how can he prove the label which promised this was false? There will never be any records of caloric
6 If he cannot prove that Defendant Celsius' product did not cause him to burn up to 100 calories, then
any of this. These facts will never change. If plaintiff cannot answer this question now, he never will.
and unknowing caloric amounts with various amounts of exercise. Regardless, he never kept track of
calories because he never consumed the drink alone, but always with other food and drink of various
At least in plaintiff s case, it is not a knowable fact whether the drink alone burned 100
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10 -parts not made or assembled inthe U.S.A.; either they did or were or they did not or were not. All the
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"It is unlawful for any person, firm corporation or association, or any employee thereofwith intent directly or indirectly to dispose of real or personal property or to performservices, professional or otherwise, or anything of any nature whatsoever or to induce thepublic to enter into any obligation relating thereto, to make or disseminate or cause to bemade or disseminated from this state before the public in any state, in any newspaper orother publication, or any advertising device, or by public outcry or proclamation, or inany other manner or means whatever, including over the Internet, any statement,concerning that real or personal property or those services, professional or otherwise, orconcerning any circumstance or matter of fact connected with the proposed performanceor disposition thereof, which is untrue or misleading, and which is known, or which bythe exercise of reasonable care should be known, to be untrue or misleading, or for anyperson, firm, or corporation to so make or disseminate or cause to be so made ordisseminated any such statement as part of a plan or scheme with the intent not to sellthat personal property or those services, professional or otherwise, so advertised at theprice stated therein, or as so advertised. Any violation of the provisions of this section is
Business & Professions Code §17500 states as follows:
"41. This cause of action is brought pursuant to Business and Professions Code §17500, et seq., on behalf of Plaintiff Ryan Fletcher, individually, and on behalf of allCalifornia consumers similarly situated who at any time during the four years prior tothe filing of the instant Action purchased Celsius after they were exposed toadvertisements, packaging, and/or marketing claims that Celsius is able to 'Burn upto 100 Calories' and/or more per can. Plaintiffhas standing to pursue this claim asPlaintiff has suffered an injury in fact from money lost as a direct and proximate resultof Defendant's false advertising and unfair business practices." (Complaint, mI41;emphasis added).
Plaintiff has alleged, in pertinent part, that:
Violation of California Business & Professions Code Section 17500. et seq.2.
Defendant Celsius, then, is entitled to summary adjudication of this issue.
the issue of standing as it was raised in allfour of Defendant Celsius' motions on this date]).
Finding of No Merit," 12:20-24 [via the August 2, 2011 "Notice of Ruling, " this court is considering
after the holiday season in January 20 1O---while admittedly still drinking Celsius." (See "Motion for a
that (1) Plaintiff admittedly did not pay attention to his caloric intake, and (2) Plaintiff lost two pounds
because Plaintiff gained 10 pounds while drinking Celsius over the holiday season, despite the fact
loss advertised by Celsius' is based solely upon a single inference-that Celsius must be ineffective
Defendant Celsius points out, "[P]laintiff's claim that he did not experience 'the calories and/or weight1
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calories or more when he drank Celsius. He claims to have weighed himself once per week, hut never
measured the amount of calories he burned at all. He admitted that he may have, in fact, burned 100
never measured his metabolism or caloric consumption at any time he was drinking Celsius. He never
meant that drinking Celsius would cause him to lose weight. Plaintiff, however, also testified that he
Celsius "Burns Calories!" and "Burn up to 100 calories or more in each can!"-are unfair and
He testified that the calorie-burning claims for Celsius that appear on the can lahel--that
identify the false or misleading claims on the label.
itself, he was shown the can label in use at the time he made his Celsius purchases, and asked to
market. Since the only marketing or advertising plaintiff could positively identify was the Celsius can17
October 2009, although it is unclear if he was shown the entire universe of commercials for this
being the one he saw that motivated him to visit GMC to purchase Celsius in late September to early
from September 2009 to December 2009. He was not able to identify any of these commercials as
shown five 15- or 3D-second TV commercials for Celsius that aired in a variety of advertising markets
viewed in all media that he believed were unfair, misleading, deceptive or false in any way. He was
claim has no merit. Plaintiff, during his deposition, was asked about the claims for Celsius that he
Defendant Celsius also moves this court, per CC § 1781, for an order that plaintiff s CLRA
Motion for a Finding of No Merit2.
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5 "injury in fact." (see above). Defendant Celsius, then, is entitled to summary adjudication of this issue.
4 Plaintiff, again, being unable to show that he lost money wrongfully, has not suffered an
a misdemeanor punishable by imprisonment in the county jail not exceeding six months,or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both thatimprisonment and fine." (Emphasis added).
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22 misleading because he believed that when he read "Burn Calories" on the label he understood that this
person to recover or obtain' actual damages, an injunction, restitution, and punitive damages.
act, or practice declared to be unlawful by [Civil Code s]ection 1770 may bring an action against that
consumer who suffers any damage as a result of the use or employment by any person of a method,
not to sell them as advertised' (Civ.Code, §1770, subd. (a)(9». "The CLRA then provides that '[a]ny
grade ... if they are of another' (Civ.Code, §1770, subd. (a)(7); and '[a]dvertising goods ... with intent
(Civ.Code, § 1770, subd. (a)(5); '[r]epresenting that goods ... are of a particular standard, quality, or
'[r]epresenting that goods ... have ... characteristics, ... uses, [or] benefits ... which they do not have'
unlawful. (Civ. Code, § 1770, subd. (a». Among the practices deemed unlawful under the CLRA are:
"The eLRA declares numerous practices in the sale of goods or services to conswners to be
"(a) Any consumer entitled to bring an action under Section 2780 may, if theunlawful method, act, or practice has caused damage to other consumers similarlysituated, bring an action on behalf of himself and such other consumers to recoverdamages or obtain other relief as provided for in Section 1780 ...(c) If notice of the time. and place of the hearing is served upon the other parties atleast 10 days prior thereto, the court shall hold a hearing, upon motion of any party tothe action which is supported by affidavit of any person or persons havingknowledge of the facts, to determine if any of the following apply to the action: ...(3) The action is without merit or there is no defense to the action.A motion based upon Section 437c of the Code of Civil Procedure shall not begranted in any action commenced as a class action pursuant to subdivision (a)."(Emphasis added).
Defendant Celsius' motion is GRANTED. CC § 1781 states, in pertinent part, as follows:
calories from the foods he ate.
7 pie. He admitted that during the period he drank Celsius, he did not pay strict attention to reducing
season, during which time he partook of fattening foods such as stuffing, cranberry sauce and apple
Celsius regularly. He said he lost those two pounds after the Thanksgiving and Christmas holiday
period he drank Celsius, he also lost two pounds at the tail end of the period during which he drank
admitted that, despite his assertion in interrogatory answers that he gained ten pounds during the
kept written records of his weight at any given time; instead, he tracked it by memory. He also
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"12. Plaintiff last purchased Celsius in January, 2010, at a GNC store in California forhis personal use. At that time, Plaintiff was a frequent purchaser of Celsius who hadread, relied upon, and believed the packaging and marketing, which represented on theface of the product that consuming Celsius would cause him to lose weight. But,despite consuming Celsius as directed, Plaintiff has experienced none of itspromisedbenefits and has since discovered Defendant'S representations are unsubstantiatedPlaintiff has not experienced the calorie and/or weight loss as advertised by Celsius.Thus, each can of Celsius purchased by Plaintiff has been worthless ...25. Defendant advertised, packaged, and marketed Celsius as containing uniqueCalorie burning and dietary features. Specifically, Defendant claims that Celsius will'Burn up to 100 Calories' andlor more in each can. These representations have hadtheir intended effect- creating in Plaintiff thefalse belief that consuming Celsius wouldcause him to 'Burn up to 100 Calories' or more per can and consequently, lose weight.As detailed herein, this representation is false. Plaintiff did not burn calories asadvertised or lose weight and could not have done S(Jmerely by drinking a can ofCelsius. As a result, each can of Celsius purchased by Plaintiffwas entirely worthless tohim.26. Defendant's marketing statements are material misrepresentations that arefalseand misleading, as they are based on an advertising campaign which leaves reasonableconsumers with thefalse impression that consuming Celsius will cause himlher to loseweight by 'Burn[ing] up to 100 Calories' and/or moreper can. Based thereon,Defendant has engaged (and continues to engage) in conduct in violation of CaliforniaCivil Code Section 1770(a)(5) by '[r]epresenting that goods or services have sponsorship,approval, characteristics, ingredients, uses, benefits, or quantities which they do nothave ... '27. Plaintiff purchased Celsius for his own personal use in reliance on the marketingclaims challenged herein, but theproduct did not work as advertised. Plaintiff allegesthat Defendant's representations that Celsius contains unique features that would rapidlybum calories and cause weight loss were known andlor intended by Defendant to inducereliance by California consumers such as Plaintiff, and that members of the proposedClass acted in reliance on these representations when making the decision to purchaseCelsius ...31.Defendant's wrongful business practices have caused injury to Plaintiff and theClass ... " (Complaint, 11 12, 3:3-10, 1m25-27,6:12-7:4 and 1131, 7:13-14; emphasisadded).
Plaintiff cannot make this showing. He has alleged, in pertinent part, as follows:7
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Co .... [2002] 97 Cal.App.4th [1282,] at 1292)." Id. at 129 (Emphasis added).6
conduct was deceptive but that the deception caused them harm.' (Massachusetts Mutual Life Ins.
practice. This provision 'requires thatplaintiffs in a CLRA action show not only that a defendant'S
language of the CLRA allows recovery when a consumer 'suffers damage as a result of the unlawful
(Civ.Code, §780, subd. (a))." In re Vioxx Class Cases (2009) 180 Cal.App.4th 116, 128-129. "The1
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Again, plaintiff cannot demonstrate that he suffered any cognizable harm that was immediately
caused by any of Defendant Celsius' alleged statements, as discussed extensively in the analysis on
Defendant Celsius' "Motion for Summary Judgment or, in the Alternative, Summary Adjudication,
Based Upon Standing and FDA Preemption."
CONCLUSION
Plaintiff cannot, and never will be able to, show that he lost money caused by a false
advertising of Defendant Celsius, because he must show the advertising was false as to him.
His subjective belief that consumption of Defendant Celsius' product without some other.
lifestyle change will automatically result in weight loss is unreasonable as a matter oflaw.
Regardless, here he cannot show and does not know ifDefendant Celsius' product, in fact,
burned "up to" 100 calories when he consumed the drink. Obviously, if it did, the advertising would
not have been false as to him, regardless of what experts might say.
It seems evident that plaintiff did not buy Defendant Celsius' product with the intent to sue
later. Had he that intent, perhaps the missing records and evidence showing that Defendant Celsius'
product failed to work "as promised" for him might exist.
Plaintiff s counsel argued, with some justification, that a consumer in plaintiff s position can
never establish standing if he is required to show a product like Celsius did not ''work as promised."
This Court's response to this is threefold: One, it may be difficult, but it is not impossible, for
a plaintiff to make a claim here if that plaintiff took time to document caloric intake, weight, and
exercise establishing a baseline where no Celsius is consumed with another time period of like caloric
intake and exercise when Celsius is consumed and where the difference ismeasured; two, this Court is
unaware of a doctrine of law, at least in this context, that excuses demands for proof just because
proof may be difficult to come by, because; three, if we excused the demands for proof in cases where
proof is difficult to come by, then any liability in any subsequent trial would be simply established as
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Honorable Terry GreenLos Angeles Superior Court
______ ,2011
Finding of No Merit is GRANTED. Judgment is entered for Defendant Celsius, as of the date of this
Summary Adjudication is GRANTED as to Issues Nos. 1 and 2. Defendant Celsius' Motion for a
Defendant Celsius' Motion for Summary Judgment is DENIED; however, its Motion for
generally.
regardless of what experts may say about the relative merits or lack of same about this product
to ever conclude that the mere fact he gained weight was due to some fault with the product,
Here, there is an absolute dearth of evidence as to the particular circumstances of this plaintiff
expert battle, other than being the original key to the courthouse door.
the consumer's unique personal physiology and history, he becomes an irrelevancy in this larger
Absent something specific about why this product failed to produce the desired results, given
proof that the product did not "work as promised" when actually consumed by any consumer.
a battle of experts where a defendant could be found civilly liable for "false advertising" without any1
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15 ORDER.
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17 DATED:
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