Judge: Stuart M. Rice, Case: 23STCV15674, Date: 2025-02-10 Tentative Ruling



Case Number: 23STCV15674    Hearing Date: February 10, 2025    Dept: 1

Moving Party:             Defendant Nutra Holdings, Inc. d/b/a Jacked Factory

Responding Party:      Plaintiff Daniel Rossi

Ruling:                        Demurrer overruled as to all causes of action.  Motion to strike granted as to damages request in the CLRA cause of action with 45 days leave to amend and otherwise denied. 

 

This is a consumer proposed class action.  Plaintiff Daniel Rossi (Plaintiff) contends that defendant Nutra Holdings, Inc., doing business as Jacked Factory (Defendant) represents to consumers that its dietary supplements are “manufactured in the USA” when they are wholly or substantially made with ingredients manufactured outside the United States of America.  Plaintiff brings suit under the Consumer Legal Remedies Act (CLRA, Civ. Code § 1750 et seq.), False Advertising Law (FAL, Bus. & Prof. Code § 17500 et seq.), and Unfair Competition Law (UCL, Bus. & Prof. Code § 17200 et seq.), and for negligent and intentional misrepresentation.  Defendant demurs to Plaintiff’s First Amended Complaint (FAC) and, in the alternative, moves to strike portions of it. 

 

Legal Standards

1.      Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) ¿When considering demurrers, courts read the allegations liberally and in context.¿ (Taylor v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal. App. 4th 1216, 1228.)¿ In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (CCP § 430.30(a).)¿ A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)¿ Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Id.)¿ The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.¿ (Hahn v. Mirda, supra, 147 Cal.App.4th at 747.) 

“On demurrer the allegations of the complaint are assumed to be true. A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.”  (Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879.)  “Less particularity is required when it appears that defendant has superior knowledge of the facts, so long as the pleading gives notice of the issues sufficient to enable preparation of a defense.”  (Okun v. Superior Court (1981) 29 Cal.3d 442, 458.)  “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.”  (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)  “[A] plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action.”  (Youngman v. Nevada Irrigation District (1969) 70 Cal.2d 240, 245; see also Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099.)

 

2.      Motion to Strike

 

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof[.]” (Code Civ. Proc. § 435(b)(1).)  “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”  (Code Civ. Proc. § 436.)  “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”  (Code Civ. Proc. § 437(a).) 

 

Request for Judicial Notice

 

Defendant requests that the Court take judicial notice of a number of web pages from its own website (jackedfactory.com) and Amazon.com “identifying the ingredient list for each such product listed on Plaintiff’s ‘Exhibit A’ that does not contain any of the allegedly ‘foreign’ ingredients identified in the First Amended Complaint.”  Although the contents of public websites are ostensibly matters that would be subject to judicial notice, a review of the papers indicates that Defendant seeks to use the websites to establish what the contents of the products themselves are.  (See Defendant’s Memorandum, p. 9.)  This is not a proper use of judicial notice.  (See Malek Media Group LLC v. AXQG Corp. (2020) 58 Cal.App.5th 817, 826 [offering material for judicial notice “for the truth of their contents” is “not a proper use of judicial notice.  At most, we could judicially notice the existence of the press releases, but not the truth of their contents [citation], which are ‘plainly subject to interpretation and for that reason not subject to judicial notice[.]’”]) Defendant offers no theory on which the contents of the products themselves could be judicially noticed at this stage, and that is the ultimate fact which Defendant seeks to use here.  Defendant’s request for judicial notice is denied.

 

Plaintiff requests that the Court take judicial notice of a “Scientific Opinion” from EFSA Journal purporting to establish that “Panax notoginseng and Astragalus membranaceus, which create AtraGin, are not from the USA and are sourced from Gansu and Inner Mongolia provinces in China, and from Yunnan and Sichuan provinces in China.”  This presents the identical issue as Defendant’s request, namely that the Court cannot so determine without accepting the contents of the article for its truth, and the truth of those contents does not appear to be indisputable.  Plaintiff’s request is denied. 

 

Defendant has not requested judicial notice of Plaintiff’s CLRA demand letter, which is attached to the declaration of Melanie Ayerh as Exhibit 1.  However, Plaintiff does not dispute the authenticity of the letter, and contends in fact that the letter is “incorporated by reference in Plaintiff’s Complaint and the FAC.”   (See Plaintiff’s Opposition Memorandum, p. 3, fn. 4.)  The Court therefore notifies the parties that it intends to take judicial notice of the CLRA demand letter, on its own motion pursuant to Evid. Code § 455 and subject to the parties’ right to meet the information. 

 

Discussion

 

I.                   Specificity of Fraud Allegations

 

As held in Lazar v. Superior Court (1996) 12 Cal.4th 631 (Lazar):

 

In California, fraud must be pled specifically; general and conclusory allegations do not suffice. [Citations.] “Thus ‘“the policy of liberal construction of the pleadings ... will not ordinarily be invoked to sustain a pleading defective in any material respect.’ ” [Citation.] [¶] This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” [Citation.]

(Id. at 645.)

 

Defendant contends that Plaintiff’s claims lack the required specificity.  Plaintiff’s FAC alleges, in pertinent part:

 

18. Defendant’s “Manufactured in the United States” representations are deceptive and false because Defendant’s Class Products are wholly and/or substantially made with ingredients and/or components that are not “Manufactured in the USA.”

[¶]

20. As of July 2023, when the first complaint in this matter was filed, Defendant’s website contained a clear and conspicuous “Manufactured in the USA” claim under iconography of a waiving United States flag encircled by the words “Manufactured in the USA” making it clear that Defendant meant this claim to be applied to all its products. This claim, including iconography, appeared on each and every product page of Defendant’s website as well as Defendant’s Amazon.com product pages.

 

21. Even after the filing of this matter, according to publicly archived webpages, as of January 2024 or even later, the main home page of Defendant’s website still contained a clear and conspicuous “Manufactured in the USA” claim under same iconography of a waiving United States flag encircled by the words “Manufactured in the USA” thus making it more evident that Defendant meant this claim to be applied to all its products—even after the Complaint was filed in this matter.

[Image]

 

22. According to publicly archived webpages, as of November 2023 or even later, the “Frequently Asked Questions” page of Defendant’s website contained the following answer in response to the question: “Where are your products manufactured?” “Answer: Our products are manufactured in the USA in a cGMP, FDA Registered manufacturing facility adhering to the strictest quality control.” (emphasis added)

[¶…¶]

32. The offending Product purchased by Plaintiff contains or is made with ingredients and/or components that are not “Manufactured in the USA.” For example, the Product contains two herbal ingredients that are native to China and not commercially grown in the United States; Astragalus membranaceus and Panax notoginseng. These ingredients are sourced from China or other Asian countries. Irrespective of exactly where these two ingredients are sourced, one thing is certain – they are not grown, made or sourced from the United States.

[¶…¶]

41. The ingredients in the Product and the Class Products are the same or substantially similar, therefore, the Class Products and Defendant’s misrepresentations of them are substantially similar to the Product and the misrepresentation of the Product.

 

42. For example, caffeine is included in numerous of Defendant’s products other than the

Product, including, but not limited to, NitroSurge Shred (also contains theobromine), NitroSurge Build, Burn-XT, Build-XT Black (also contains theobromine), Burn-XT Powder, Wick Mode Pre Workout and NitroSurge Shred Max.

 

43. Astragalus membranaceus and Panax notoginseng are included in numerous products other than the Product, including but not limited to, NitroSurge Build, Pump Surge, Build-XT, GDAXT, Wick Mode Pre Workout, NitroSurge Shred Max and Build XT Max – Elite Muscle Builder.

 

44. Defendant uses numerous other indisputably foreign ingredients in numerous of its

products, including but not limited to KSM-66 ashwagandha and green tea extract

 

45. Despite the presence of numerous indisputable foreign ingredients in the Class Products, Defendant made unqualified “Manufactured in the USA” representations on the main page of its website, on each product page, on each Amazon.com product page and even in the “Frequently Asked Questions” section of its website.

(FAC, footnotes omitted.) 

 

These allegations are sufficient to put Defendant on notice of the nature of Plaintiff’s claims under the heightened pleading standard for misrepresentation claims.  Plaintiff alleges that before the filing of the Complaint and until at least January 2024, Defendant made misrepresentations to the general public over the internet about its products being manufactured in the USA, when they contained ingredients which were not, including caffeine, theobromine, astragalus membranaceus, panax notoginseng, KSM-66 ashwagandha, and green tea extract.  This fulfills Lazar’s requirement to allege “how, when, where, to whom, and by what means the representations were tendered.”  (See Lazar, supra, 12 Cal.4th at 645.) 

 

Defendant argues that Plaintiff does not allege adequate facts supporting the falsity of the representation, such as alleging the countries of origin of the ingredients.  Nothing Defendant presents imposes such a requirement on Plaintiff at the pleading stage.  Colgan v. Leatherman Tool Group, Inc. and Benson v. Kwikset Corp. did not involve pleadings motions and say nothing about whether the complaints at issue met the requisite pleading standard.  (See Colgan v. Leatherman Tool Group, Inc. (2006) 135 Cal.App.4th 663, 672 [appeal was from grant of summary judgment]; Benson v. Kwikset Corp. (2007) 152 Cal.App.4th 1254, 1262 [appeal was of judgment entered after trial.])  In Kwikset Corp. v. Superior Court, the question at bar was the allegations of injury in fact in light of the recently enacted Proposition 64, not the sufficiency of the falsity allegations or the “how, when, where, to whom, and by what means” questions of Lazar.  (See Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 319-320.)  That these cases may have had more robust falsity allegations is irrelevant and unhelpful to Defendant’s arguments on demurrer.

 

Alaei v. Kraft Heinz Food Co. (S.D. Cal. Apr. 22, 2016, No. 15cv2961-MMA) 2016 WL 11621800 (nonpub. opn.), aside from being an unpublished district court decision, is distinct.  The whole of the plaintiff’s allegations there was:

 

In November of 2015, Plaintiff purchased Defendant's Heinz 57 Sauce (the “Product”) from an Albertsons grocery store located on 1133 Mission Road in Fallbrook, California. At the time of Plaintiff's purchase, the offending Product was described as manufactured in the U.S.A., when the Product actually was made and/or contained components made outside of the United States. As such, Defendant is not entitled to lawfully make representations that the Product was “MFD. In U.S.A.”

(Id. at p. 2.) 

 

The only ingredients the plaintiff identified did not correspond to the Heinz 57 Sauce the plaintiff purchased.  (Id. at p. 3.)  The District Court found that these allegations fell short of the “who, what, where, when, and how” requirements of the pleading standard.  (Ibid.)  Plaintiff’s allegations here are much more robust and correspond to the product he purchased. 

 

Because the allegations noted above are not stated on information and belief, it is unnecessary to address whether Plaintiff has asserted sufficient facts to justify any information and belief allegations.  (See Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1159.) 

 

For the foregoing reasons, the Court will overrule the demurrer to the fourth and fifth causes of action for negligent and intentional misrepresentation on this ground.

 

II.                Sufficiency of Allegations Concerning UCL, FAL, and CLRA Claims

 

Defendant argues that for the same reasons, Plaintiff’s allegations fail under the Unfair Competition Law (UCL, Bus. & Prof. Code § 17200 et seq.), False Advertising Law (FAL, Bus. & Prof. Code § 17500 et seq.), and Consumers Legal Remedies Act (CLRA, Civ. Code § 1750 et seq.).  For the reasons discussed above, Plaintiff’s allegations are sufficient to allege that Defendant made false statements to consumers concerning the product Plaintiff bought, at a minimum, and are not simply “contentions, deductions, or conclusions of fact or law” as would support a demurrer.  (See Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924.)  The Court will overrule the demurrer to the first, second, and third causes of action on this ground.

 

III.             Request for Injunctive Relief

 

Defendant contends that it has removed the “Manufactured in the USA” language from its website, Amazon.com, and all other websites over which it maintains control, based on a declaration from its founder and CEO (see Williams Decl., ¶ 3) and that the Court should therefore strike Plaintiff’s request for an injunction.  It is axiomatic that motions to strike may be based only on the face of the pleading or matters of which the Court may properly take judicial notice.  (Code Civ. Proc. § 437(a).)  To the extent that Defendant’s motion depends on Mr. Williams’s declaration, it cannot be granted. 

 

Defendant also contends that Plaintiff does not establish Defendant has unbridled control of the representations made by certain third parties.  This argument is somewhat in conflict with Mr. Williams’ declaration, which purports to establish that Defendant has control of certain third party websites and not others.  Defendant identifies no part of Plaintiff’s complaint subject to being stricken due to a purported lack of control.  The Court will therefore not grant the motion to strike this portion of the FAC.

 

IV.             Allegations Concerning Products Plaintiff Did Not Buy

 

Defendant argues that Plaintiff lacks standing as a matter of law to bring claims pertaining to any products other than the one he purchased (i.e. Jacked Factory Nitrosurge Pre-workout dietary supplement).

 

This argument does not appear to be based on any California law.  Johns v. Bayer Corp., an unreported case from the U.S. District Court for the Southern District of California, does not cite any California law in support of the language Defendant relies on, nor does Bruton v. Gerber Products Company.  (See Johns v. Bayer Corp. (S.D. Cal. Feb. 9, 2010, No. 09CV1935 DMS (JMA)) 2010 WL 476688 (nonpub. opn.), p. 5; Bruton v. Gerber Products Company (N.D. Cal. Jan. 15, 2014, No. 12-CV-02412-LHK) 2014 WL 172111 (nonpub. opn.), p. 8.) 

 

Plaintiff is not alleging that he was harmed by any representations connected with a product he did not purchase. Rather, he seeks to represent a class of people who he claims purchased products subject to similar misrepresentations.  (See FAC, ¶¶ 3, 77.)  Whether people who purchased other products are similarly situated to Plaintiff is a paradigmatic class certification inquiry.  As Defendant presents nothing permitting the Court to determine this question as a matter of law at this stage in the litigation, the Court will not strike these allegations, but recognizes this issue may come before the Court again in a different context.  

 

V.                Insufficiency of CLRA Notice

 

If a plaintiff seeks damages in a CLRA action, the statute requires pre-suit notice to the defendant:

 

(a) Thirty days or more prior to the commencement of an action for damages pursuant to this title, the consumer shall do the following:

(1) Notify the person alleged to have employed or committed methods, acts, or practices declared unlawful by Section 1770 of the particular alleged violations of Section 1770.

 

(2) Demand that the person correct, repair, replace, or otherwise rectify the goods or services alleged to be in violation of Section 1770.

 

The notice shall be in writing and shall be sent by certified or registered mail, return receipt requested, to the place where the transaction occurred or to the person’s principal place of business within California.

(Civ. Code § 1782(a).)

 

“That requirement exists in order to allow a defendant to avoid liability for damages if the defendant corrects the alleged wrongs within 30 days after notice, or indicates within that 30–day period that it will correct those wrongs within a reasonable time.”  (Morgan v. AT&T Wireless Services, Inc. (2009) 177 Cal.App.4th 1235, 1261 (Morgan).) 

 

Defendant contends that Plaintiff’s CLRA notice letter was insufficient because it does not identify the purportedly foreign ingredients in the product at issue (i.e. Astragalus membranaceus, Panax notoginseng, theobromine, Caffeine or KSM-66 ashwagandha) but other ingredients which are not in the product, and Plaintiff’s FAC contains no mention of the substances which are mentioned in the CLRA notice letter. 

 

The letter reads, in pertinent part:

 

Contrary to its "Manufactured in the USA" representation, many, if not all, products produced and sold by Jacked Factory contain or are made with ingredients that are not "Manufactured in the USA." For example, the Product contains L-Citrulline, Betaine Anhydrous, Beta Alanine, and L-Theanine, which in this instance, among other ingredients in the product, are not from the United States, yet its advertising states "Manufactured in the USA." Similarly, Jacked Factory's Burn-XT contains acetyl-L-Carnitine HCl, Green Tea Leaf Extract and Black Pepper Fruit Extract, which in this instance, among other ingredients in the product, are not from the United States, yet the

advertising on its webpage, at https://www.jackedfactory.com/products/burn-xt, also states "Manufactured in the USA." Jacked Factory' s N.O. XT contains Arginine, Glutathione and Citrulline, which in this instance, among other ingredients in the product, are not from the United States, yet its advertising states "Manufactured in the USA" (See

https://www.jackedfactory.com/products/no-xt). Additionally, on Jacked Factory's website, it even lists an "FAQ" of "Where is [Product] Manufactured" on each of its product's website pages to which the response by Jacked Factory is "All Jacked Factory products are proudly manufactured in the USA in a cGMP certified facility using the highest quality control guidelines for maximum potency, quality, & safety." (emphasis added).

 

The comprehensive list of all of Jacked Factory's misrepresentations of its products is simply too long to demonstrate here. However, it is abundantly clear that Jacked Factory pays no attention to applicable laws regarding the labeling of its products with "Manufactured in the USA", or any derivative thereof. Therefore, each and every one of Jacked Factory products regardless of brand, type, configuration or size, including but not limited to the aforementioned brands and products, containing foreign ingredients, components or raw materials and any reference to "Manufactured in the USA" or any derivative thereof, is subject to the demand/s

made in this letter. Please note that should this firm file suit on behalf of our client, we will seek to represent the purchasers of any and all of Jacked Factory misrepresented products.

 

Section 1770(a) of the CLRA prohibits, among other things, the following unfair methods of competition and unfair or deceptive acts or practices when attempting to sell or selling goods and services to consumers: (2) Misrepresenting the source, sponsorship, approval, or certification of goods or services; (3) Misrepresenting the affiliation, connection, or association with, or certification by, another; ( 4) Using deceptive representations or designations of geographic origin in connection with goods or services; (5) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which he or she does not have; (7) Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another; and (9) Advertising goods or services with intent not to sell them as advertised. (See Cal. Civil Code sections 1770(a) (2), (3), (4), (5), (7), and (9).)

 

The above-described representations and/or omissions are false and misleading and constitute unlawful, unfair, or fraudulent acts, or practices and unfair methods of competition in violation of the CLRA, including but not limited to§§ 1770(a)(2), (3), (4), (5), (7), and (9). The representations also violate California's Unfair Competition Law, California Business & Professions Code §§ 17200, et seq; and California's False Advertising Law, California Business & Professions Code §§ 17500, et seq. Jacked Factory has and continues to mislead consumers into believing that its products containing the aforementioned ingredients, among others, are "Manufactured in the

USA," when in fact that is not true. These misrepresentations allow Jacked Factory to increase its sales and capture market share from its competitors.

(Ayerh Decl., Ex. 1, pp. 2-3, emphasis in original.)

 

Defendant contends that Plaintiff’s failure to identify in the CLRA notice the specific ingredients that Plaintiff argues are foreign-procured dooms the CLRA claim for lack of notice. 

 

The CLRA was enacted not just to “protect consumers against unfair and deceptive business practices” but also “to provide efficient and economical procedures to secure such protection.” ([Civ. Code] § 1760.) Avoiding litigation when appropriate corrective action has been proffered by the merchant, regardless of whether the relief is requested in the form of monetary damages or restitution of property, achieves this latter goal. (Ibid.)

(DeNike v. Mathew Enterprise, Inc. (2022) 76 Cal.App.5th 371, 380.) 

 

“This clear purpose may only be accomplished by a literal application of the notice provisions.”  (Outboard Marine Corp. v. Superior Court (1975) 52 Cal.App.3d 30, 41.)  That purpose cannot be served by a CLRA notice unless the notice describes with sufficient particularity what acts need to be corrected.  In this context, that means identifying the ingredients in the product Plaintiff purchased which Plaintiff contended were manufactured or procured from outside the United States, so that Defendant could determine whether that contention required any corrective action.  If the notice describes certain acts (including L-Citrulline, Betaine Anhydrous, Beta Alanine, and L-Theanine in a product held out as “Manufactured in USA”), and the manufacturer believes that those allegations are not meritorious and do not expose it to any liability, the appropriate action is to do nothing.  If a plaintiff then brings suit based on different acts (including Theobromine, Caffeine, Astragalus membranaceus, Panax notoginseng, and KSM-66 Ashwagandha in the product), the defendant has had no opportunity to correct those acts and the purpose of avoiding litigation is entirely frustrated. 

 

As recognized in Morgan, it is inappropriate to foreclose the CLRA claim with prejudice based on lack of notice.  (See Morgan, supra, 177 Cal.App.4th at 1261.)  Instead, the claim should be “dismissed until 30 days or more after the plaintiff complies with the notice requirements. If, before that 30–day period expires the defendant corrects the alleged wrongs or indicates it will correct the wrongs, the defendant cannot be held liable for damages.”  (Ibid.)  Again, in this context, that means that Plaintiff must give notice of the violations actually sued upon so that Defendant may cure or take appropriate action (which may, in the end, be no action at all).  Alternatively, Plaintiff may amend his complaint to allege the violations of which he gave notice, if he can do so in good faith.  The Court has no way of determining at this stage whether the product Plaintiff purchased contains the L-Citrulline, Betaine Anhydrous, Beta Alanine, and L-Theanine of which he gave notice.  Finally, Plaintiff may simply abandon his claim for damages under the CLRA and proceed solely on injunctive relief, which has no notice requirement.  (See Kagan v. Gibraltar Savings & Loan Association (1984) 35 Cal.3d 582, 590, disapproved on other grounds in Meyer v. Sprint Spectrum L.P. (2009) 45 Cal.4th 634, 643 fn. 3.)

 

For the foregoing reasons, the Court will grant the motion to strike the request for damages in the CLRA claim with 45 days leave to amend.  Because the Court’s intention is to grant with leave, the Court will address Defendant’s argument based on the making of an appropriate correction, as that question may recur. 

 

VI.             Appropriate Correction

 

The CLRA provides:

 

(b) Except as provided in subdivision (c), no action for damages may be maintained under Section 1780 if an appropriate correction, repair, replacement, or other remedy is given, or agreed to be given within a reasonable time, to the consumer within 30 days after receipt of the notice.

(c) No action for damages may be maintained under Section 1781 upon a showing by a person alleged to have employed or committed methods, acts, or practices declared unlawful by Section 1770 that all of the following exist:

 

(1) All consumers similarly situated have been identified, or a reasonable effort to identify such other consumers has been made.

 

(2) All consumers so identified have been notified that upon their request the person shall make the appropriate correction, repair, replacement, or other remedy of the goods and services.

 

(3) The correction, repair, replacement, or other remedy requested by the consumers has been, or, in a reasonable time, shall be, given.

 

(4) The person has ceased from engaging, or if immediate cessation is impossible or unreasonably expensive under the circumstances, the person will, within a reasonable time, cease to engage, in the methods, act, or practices.


(Civ. Code § 1782.)

 

Defendant contends that it has substantially complied with the steps under Civ. Code § 1782(c), such that Plaintiff’s action for damages ought to be foreclosed.  Specifically, Defendant contends that it has removed the “Manufactured in USA” statements from its website as required by subdivision (c)(4), and that the first three subdivisions have been satisfied because it is inappropriate and unreasonable to require Defendant to take those steps.

 

As discussed above, Defendant’s extrinsic evidence cannot be considered on demurrer.  Moreover, the appropriateness of corrections under this section is a matter of judicial discretion, requiring evidence.  (Benson v. Southern California Auto Sales, Inc. (2015) 239 Cal.App.4th 1198, 1207 [“[T]he trial court should use its discretion, basing it on substantial evidence, to determine whether a correction was appropriate[.]”)  This makes it an inappropriate issue for demurrer.  If the correction were a discrete matter whose resolution could be judicially noticed, that would be one thing, but the Court cannot determine without evidence that as a matter of law, it is unreasonable for Defendant to identify consumers similarly situated to Plaintiff and make an appropriate correction as to those consumers.  The Court has no evidence (and can consider none at this stage) of what Defendant’s ability is to identify its customers or extend refunds or corrections to them.  The Court will not sustain the demurrer or grant the motion to strike on this ground. 

 

Conclusion

 

For the foregoing reasons, the demurrer is overruled as to all causes of action.  The motion to strike is granted in part as to the request for damages in the First Cause of Action for violation of the CLRA with 45 days’ leave to amend and is otherwise denied.  Plaintiff to give notice.