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1 2 3 4 5 6 7 8 9 COUNTY OF LOS ANGELES, CENTRAL JUDICIAL DISTRICT 10 11 12 13 14 15 vs. Plaintiff, RYAN FLETCHER, individually, and on behalf of all others similarly situated,
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SUPERIOR COURT OF CALIFORNIA

CASE NO. BC439 055 Department 14 Judge: Terry Green ORDER ON: (1) MOtION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION, BASED UPON STANDING AND FDA PREEMPTION; AND (2) MOTION FOR A FINDING OF NO MERIT

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. CELSIUS HOLDINGS, INC., a Nevada corporation; and DOES 1-250, Inclusive, 16 Defendants. 17 18 19 20 21 22

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DATE ACTION FILED: 6/4/10 TRlAL DATE: 1123/12

In this yet-to-be-certified class action, Plaintiff Ryan Fletcher, individually and on behalf of all 23 24 25 26 27 28 1 others similarly situated (hereinafter, "plaintiff' or "Mr. Fletcher"), contends that Defendant Celsius Holdings, Inc. (hereinafter, "Celsius") has been defrauding hundreds of thousands of California conswners by marketing a purported weight loss drink product, also called "Celsius," which is alleged to "Burn up to 100 Calories and/or more" in each can.

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On June 4, 2010, plaintiff filed his "Class Action Complaint for Damages Based on: (1) Violation of California Consumer Legal Remedies Act; (2) Violation of California Business & Professions Code Section 17200, et seq.; and (3) Violation of California Business & Professions Code Section 17500, et seq." against Defendants Celsius and DOES 1-250. Trial is set for January 23,2012.

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10 11 12 (hereinafter, "MSA"), its "Motion for a Finding that a Class Action Cannot be Maintained and is Not On April 18, 2011, plaintiff filed his "Motion for a Finding of No Merit" (hereinafter, "No Merit Motion"). On May 10,2011, plaintiff filed his "Motion for Summary Judgment, or in the Alternative, Summary Adjudication, Based Upon Standing and FDA Preemption" (hereinafter, "MSJIMSA"). Both were initially set for hearing on August 1,2011. On July 29,2011, Defendant Celsius came in ex parte and requested a continuance on all motions set for hearing on August 1, 2011 (i.e., which also included its "Motion for Summary Adjudication of Plaintiffs' FAL and UCL Claims"

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14 15 16 17 18 19 20 parties stipulated that Defendant Celsius' No Merit Motion could be advanced to that date and 21 22 23 24 . 25 considered. Having taken both motions under submission, this court now rules as follows: Proper" (hereinafter, "Improper Class Action Motion") and plaintiff's "Motion for Order to Compel Defendant Celsius' Further Responses to [his] Special Interrogatories, Set One, and Requests for Production of Documents (hereinafter, "Discovery Motion". This court continued the hearing on Defendant Celsius' MSJIMSA and plaintiff's Discovery Motion to August 10, 2011 and continued

Defendant Celsius' MSA, Improper Class Action Motion, and No Merit Motion to October 3, 2011. Defendant Celsius' MSJIMSA was heard on August 10, 2011; during oral argument, the

1. Motion for Summary Judgment or, in the Alternative, Summary Adjudication. Based Upon
Standing and FDA Preemption

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Defendant Celsius moves this court for summary judgment, per CCP 437c, on plaintiffs complaint, on the basis that he lacks standing to pursue these causes of action and that they are

preempted by the Food, Drug and Cosmetics Act, 21 U.S.C. 301 et seq. (hereinafter, the "FD&

2 CA"). In the alternative, Defendant Celsius seeks summary adjudication of the following issues:
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merit and fails as a matter of law because the undisputed facts establish that (1) Plaintiff lacks 5 standing to pursue this cause of action and (2) Plaintiffs cause of action is preempted by the FD&CA; Issue #2: Plaintiffs Second Cause of Action, for False Advertising under the FAL, has no Issue #1: Plaintiffs First Cause of Action, for Unfair Competition under the VCL
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has no

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merit and fails as a matter of law because the undisputed facts establish that (1) Plaintiff lacks standing to pursue this cause of action and (2) Plaintiffs cause of action is preempted by the FD&CA; and Issue #3: Plaintiff s Third Cause of Action, for Violation of the CLRA, has no merit and fails as a matter of law because the undisputed facts establish that (1) Plaintiff lacks standing to pursue this

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cause of action and (2) Plaintiffs

cause of action is preempted by the FD&CA.

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As a preliminary matter, plaintiffs evidentiary objections to the Declaration of Irina Lorenzi

16 are OVERRULED, for the reasons stated during oral argument.

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20 vehicle for seeking to dispose of plaintiff s First Cause of Action for "Violation of California 21 Defendant Celsius' Motion for Summary Judgment is DENIED; its alternate request for summary adjudication is GRANTED as to Issues Nos. 1 & 2, and DENIED as to Issue No.3. At the outset, it must be noted that Defendant Celsius' motion is not the appropriate statutory

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Consumer Legal Remedies Act." "Although a CLRA cause of action cannot be summarily disposed of by means of a motion for summary adjudication or summary judgment (Civ. Code, 1781, subd. (c)),

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1 This 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 the FAL" cause of action as his second, when, in actuality, it is his third cause of action. They have erroneously labeled plaintiff's "Violation of the CLRA" cause of action as his third, when, in actuality, it is his first cause of action. This court

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it can be dismissed before trial on a motion for a determination that it is without merit (i.e., a no-merit determination). (Civ. Code, 1781, subd. (c)(3); Olsen v. Breeze. Inc. (1996) 48 Cal.App.c'" 608, 624). In practice, courts nevertheless have applied the standards applicable to motions for summary judgment and summary adjudication in deciding motions for no-merit determinations. (See, e.g.,

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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 could 'see no meaningful distinction in the choice' between dismissal of a cause of action after a motion for summary judgment and a motion for a no-merit determination. (Consumer Advocates, at p. 1359)." Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474-1475. The validity of plaintiff's first cause of action, then, will instead be separately addressed in this court's analysis on Defendant Celsius' No Merit Motion.

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14 15 16 17 18 19 20 impliedly preempted by the Federal Trade Commission Act (i.e., the "FTCA"), the FD&CA or by the 21 A. Preemption

Defendant Celsius' FD&CA preemption argument is rejected. The Fourth District, Division Three Court of Appeal, in Consumer Justice Center v. Olympian Labs, Inc. (2002) 99 Cal.App.d'" 1056, reversed the trial court's judgment of dismissal after sustaining the demurrer of defendants, the makers and distributors of two over-the-counter dietary supplements, to a nonprofit false advertising complaint under the UCL; in doing so, it determined that plaintiff's claim was neither expressly nor

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Dietary Supplemental Health and Education Act of 1994 (i.e., the "DSHEA"). The Court left open, however, the possibility of conflict preemption: "On the one hand, there is a provision in the Federal Trade Commission Act that makes it clear the Act doesn't preempt state law. Title 15 United States Code section 57b(e) provides: 'Remedies provided in this section are in addition to, and not in lieu of, any other remedy or right of action provided by State or Federallaw. ' (Italics added.)
will address plaintiff's causes of action in the order they are presented in this motion and will disregard, for purposes of issuing its ruling, that defendants have mislabeled plaintiff's causes of action.

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One would think the provision would be enough, but the defendants posit that even such a blanket 'savings' clause as 15 United States Code section 57b(e) does not . mean there is no preemption if there is actual conflict. (See e.g., Geier v. American Honda 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 car with a driver's side airbag. To allow the suit would defeat the purpose of federal regulations which were specifically intended to permit several different kinds of safety measures without requiring airbags. (See Geier, supra, 529 U.S. at p. 881)." Id. at 1061 (Emphasis theirs).

As this Court does not believe any relief fashioned in this case could possibly "defeat the purpose of federal regulations", the present action is not pre-empted, and summary judgment is denied on that

9 10 11 12 13 14 15 16 requirements but rather an indispensable part of the plaintiffs case, each element must be supported in 17 18 .the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the 19
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ground.

B.

Standing

With that said, plaintiff does not have standing to maintain this lawsuit. "A litigant's standing to sue is a threshold issue to be resolved before the matter can be reached on the merits. (Hernandez v. 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

manner and degree of evidence required at the successive stages of the litigation. [Citations.]' (Lujan v. Defenders of Wildlife (1992) 504 U.S. 555, 561)." Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1345. '''Because standing goes to the existence of a cause of action, lack of standing may be raised by demurrer or at any time in the proceeding, including at trial or in an appeal. [Citations.]' (Buckland [v. Threshold Enterprises, Ltd. (2007) 155 Cal.App.4th 798,]... 813." Id.

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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.

However, "[a]t succeeding stages, it will be plaintiffs' obligation to produce evidence to support, and

2 eventually to prove, their bare standing allegations." rd.

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1. Violation of California Business & Professions Code Section 17200, et seq.

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7 .Plaintiff has alleged, in pertinent part, that: "34. Plaintiff has standing to pursue this claim, as Plaintiff has suffered an injury in fact and has lost money as a result of Defendant's false advertising and unfair business practices. Specifically, prior to the filing of this action, Plaintiff purchased Celsius for his own personal use. In so doing, Plaintiff reviewed, believed, and relied upon each of the preceding marketing claims and representations. These representations had their intended effect - creating in Plaintiff the false belief that consuming Celsius would cause him to 'Burn up to 100 Calories and! or more per can, thus causing him to lose weight. As detailed herein, this representation isfalse. Plaintiff did 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 the meaning of Business and Professions Code 17200, et seq. because as a result of such practices, members of the public are likely to be deceived by the claims made with respect to Celsius as set forth herein. 36. Defendant's business practices, as alleged herein, are unfair within the meaning of Business and Professions Code 17200, et seq. because the harm caused to the public as a result of such practices far outweighs any benefit conferred. 37. Defendant's business practices, as alleged herein, are unlawful within the meaning of Business and Professions Code 17200 et seq. because they constitute violations 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).
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However, to have standing to bring this action, plaintiff must have suffered an "injury in fact?" 21

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"Business and Professions Code section 17200 et seq. prohibits unfair competition, including unlawful, unfair, and fraudulent business acts." Korea Supply Co. v. Lockheed Martin Corp. (2003) 29

Defendants also argue that plaintiff does not have standing as he cannot identify which commercial he relied upon in forming his expectations. Assuming this is true, this presents a factual question, especially since there is a question if the commercials he was shown at deposition constitute the entire universe of commercials shown in this area Moreover, some of the exhibits showing Celsius labels are different, making slightly different representations (e.g., compare plaintiff's 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 Partner."
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Cal.4th 1134, 1143. Business & Professions Code 17200 defines "unfair competition" to mean and

2 include "any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or
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misleading advertising ... " Section 17204 states, in pertinent part, that: "Actions for relief pursuant to this chapter shall be prosecuted exclusively in a court of competent jurisdiction by the Attorney General or a district attorney or by a county counsel authorized by agreement with the district attorney in actions involving violation of a county ordinance, or by a city attorney of a city having a population in excess of 750,000, or by a city attorney in a city and county or, with the consent of the district attorney, by a city prosecutor in a city having a full-time city prosecutor in the 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 a person who has suffered injury infact and has lost money or property as a result of the unfair competition." (Emphasis added). Most recently, in Kwikset, supra, 51 CalAth 310, the California Supreme Court explained "injury in fact:" "As we have 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 'a person 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 materially identical language, standing extends to 'any person who has suffered injury in fact and 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 must now (1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2) show that the economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim." Id. at 321-322 (Emphasis theirs). Kwikset, which examined the issue of standing at the demurrer stage, instructs us that the content oflabels is important: "At this stage, these plaintiffs need only allege economic injury arising from reliance on 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 their truth in purchasing Kwikset's locksets, and (4) plaintiffs would not have bought the locksets otherwise. On their face, these allegations satisfy all parts of the section 17204 standing requirement, as we shall explain. Simply stated: labels matter. The marketing industry is based on the premise that labels matter, that consumers will choose 7

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one product over another similar product based on its label and various tangible and intangible qualities they may come to associate with a particular source. (E.g., FTC v. Proctor & Gamble Co. (1967) 396 U.S. 568, 572 [noting the central role of advertising and sales promotion in generating market share, where the competing products 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 consumer interests in accurate label representations as to source, because consumers rely on the accuracy of those representations in making their buying decisions." Id. at 327-328. Plaintiff reads Kwikset as standing for the proposition that standing is established only by a

"truthful allegation" that Plaintiff was deceived into buying a product that did not live up to its
advertising. At oral argument, counsel concluded: "The only thing he (plaintiff) has to testify to is

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10 11 12 that, in taking the product he didn't see the effects that he desired to see." Whether or not the product failed to work as promised is a "merits issue" to be resolved by experts at trial. As plaintiff has testified to the "truthful allegation," and Dr. Lynn Willis supplied the expert opinions on the shortcomings of Celsius generally, standing is established. The problem with this approach, however, is that it expands Kwikset beyond its intended boundaries. It assumes that plaintiff s expectations are objectively reasonable. By imposing liability

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for weight gain - not the result plaintiff "desired to see" - coupled with an expert declaration that 17

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offers only opinions of the product generally, with no reference to plaintiff, it imposes strict liability beyond the reach of summary judgment. Any disappointed consumer can allege that a product, for

whatever reason, failed to perform, hire an expert to opine of the product's shortcomings, thereby create standing and an issue of fact and forcing a defendant to trial, where defendants may be forced to pay plaintiffs attorney's fees. This comes dangerously close to the precise type of "shakedown lawsuits" Proposition 64 was

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designed to prevent. 25 26 27 28 8 Defendant has a right to demand, at the summary judgment stage, that plaintiff produce admissible evidence to raise a triable issue of fact that, given plaintiff s unique circumstances, he has

suffered an injury in fact. This requires that he show, not just that he spent money and was

2 disappointed, but that the fact he gained weight or failed to lose weight, given his unique
3 4 For the reasons cited herein, this was not done. 5 6 7 8 9 10 11 12 because the deception had nothing to do with how the lock worked. Here, however, plaintiff must 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 it was 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," circumstances, was due to some shortcoming of Defendant Celsius' product.

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14 15 16 17 18 19 20 Ordinarily, what a product "promises" on its label would be a question of fact. Here, however, 21 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?

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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

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25 26 27 28 9 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

conclude that drinking a can will result in losing weight. The product did not promise a loss of weight, just that it would bum up to 100 calories. Presumably, if it burnt 5 calories, it would have fulfilled its promise. Regardless, it is basic, and something we learn starting in childhood, that gaining or losing weight depends upon a host of variables, such as caloric intake, exercise, stress, etc. While it

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7 8 would be nice to be able to drink a can, go about our business, lose weight and be forever slim, that magic potion belongs back in Hogwarts and not in our court system. In Hill v. Roll International Corporation, et al. (2011) 195 Cal.App.a'" 1295, the First District, Division Two Court of Appeal faced a similar problem. There, the trial court sustained a demurrer to a consumer's false advertising suit in which the plaintiff claimed a green symbol on a water bottle label misled her to believe the bottled water was approved as environmentally superior by third party organizations. The Court of Appeal affirmed, arguing that plaintiff failed to satisfy the reasonable

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14 15 16 17 18 19 20 21 consumer standard: "The problem is that Hill's beliefs do not satisfy the reasonable consumer standard, as expressed in the FTC guides (16 C.F.R. 260.7(a) (2011) [material implied claims conveyed 'to reasonable consumers']) and as used in our state's consumer laws. The reasonable consumer test used in the VCL and FAL derives from parallel parts of the Federal Trade Commission Act (15 U.S.C. 41 et seq.), which requires a plaintiff to show potential deception of consumers acting reasonably in the circumstances- not just any consumers. (Lavie v. Procter & Gamble Co. [2003] 105 Cal.AppAth [496,]at pp. 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. @ at p.507). Nor do we test the impact on the unwary consumer (!4,_ at p. 508), although a reasonable consumer 'need not be "exceptionally acute and sophisticated'" and might not 'necessarily be wary or suspicious of advertising claims.' (ld. at pp. 509-510.) 'Rather, California courts consistently have looked to the ordinary consumer within the larger population' (i4.:. at p. 510), and the reasonable consumer standard is also established for the CLRA. (Consumer Advocates v. Echostar Satellite Corp. (2003) 113 Cal.AppAth 1351, 1360). It follows, in these days of inevitable and readily available Internet criticism and suspicion of virtually any corporate enterprise, that a reasonable consumer also does not include one who is overly suspicious. 1
3 It is obvious that plaintiff is a sophisticated consumer. Mr. Fletcher testified he played football in high school and is physically active and that he followed a regiment of cardiovascular exercise and resistance ,training five to six days per week in July 2009. He takes dietary supplements regularly and has been a longtime consumer of energy drinks, including Rockstar. He further testified that he understands the relationship between caloric consumption and weight loss and he understands that there is a difference between burning calories and losing weight.

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Does the greeri drop on Fiji water bottles convey to a reasonable consumer in the circumstances that the product is endorsed for environmental superiority by the third party organization? No." Id. at 1304. While the specific federal statutes are different in this case than in Hill, the lesson learned from Hill is the same: At some point the consumer's interpretation of what a label promises becomes

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6' unreasonable as a matter of law. Plaintiff's belief that the label promised weight loss reaches and goes
7 beyond that point. Even if there were a question of fact regarding what the label promises and whether a reasonable consumer could justifiably rely on those representations, we then have to ask if there is any evidence Defendant Celsius' product failed to perform for plaintiff as promised on the label? Unless Plaintiff can show an issue of fact as to whether Celsius failed to work as promised for bim, his parting of money to buy the product cannot be a Kwikset injury in fact. 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," Plaintiff drank one can of Celsius two to four times per week through mid-November, 2009 when he completed the 14-week Fire Training Academy program. (UMF No. 14). He reduced his 18 19 20 21 22 23 24 drinking Celsius. (UMF No. 20). He ate fattening Thanksgiving and Christmas holiday foods 25 including stuffing, cranberry sauce and apple pie while drinking Celsius. (UMF No. 22). He testified Celsius consumption to one to two times per week until mid-January of 20 10 when he drank his last Celsius. (UMF No. 15). He enjoyed the taste of Celsius and felt some energy boost. (UMF No. 13). He never measured the amount of calories he burned while drinking Celsius. (UMF No. 17). He never measured his metabolism while drinking Celsius. (UMF No. 18). He never measured his caloric consumption while drinking Celsius. (UMF No. 19). He never kept records of his weight while

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Oddly, at no point does plaintiff state if the weight gain was muscle, fat, or a combination of the two. For the purpose of this motion, this court assumes the weight gain was fat, as a suit against Defendant Celsius alleging its consumption
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that, while his weight increased 10 pounds, it also decreased two pounds after his initial weight gain during the period he consumed Celsius. (Motion, Declaration of Joel B. Rothman [hereinafter, "Rothman Dec."], Exhibit "A," 244:5-9). He also testified that he was "not 100 percent sure if it does or does not burn 100 calories per can."

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a4:. at 218:10-11).

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Significantly, he testified that he did not know ifhe actually burned 200 to 400 calories from drinking two to four cans of Celsius and that he does not know if he drank Celsius and then engaged in any activity whatsoever if he burned more calories than he otherwise would have had he not consumed Celsius. (Rothman Dec., Exhibit "A," 160:9-18 and 161:14-19). Mere weight gain is not enough, as it would make Defendant Celsius strictly liable if one gains weight, without regard to life style. The additional evidence plaintiff puts forth does not prove his case and will never change for

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14 15 16 17 18 19 20 28,53,57,59 21 22 23 24 25 26 27 28 wrongfully caused him to gam muscle would be problematic. 12 results obtained from Celsius. (Id. at ~~ 49,51 and 57). Willis' declaration, while interesting reading, at no time attempts to apply his findings to plaintiff. At no point did he consider any testimony or declaration from Mr. Fletcher. In fact, the name "Fletcher" appears nowhere in his report. and 61). Willis did note that there were variations among individuals with respect to the the better. The Declaration of Dr. Lynn R. Willis (hereinafter, "Willis") adds nothing to plaintiff's case. Willis' declaration is a generic statement of the shortcoming of Celsius. Willis concludes that the . claims that Celsius will

burn up to

100 calories and result in weight loss are basically overstated, and

finds fault with studies supporting Celsius' claims. Essentially, consumption of Celsius, according to Willis, produces little or no results in calorie burning. (Opposition, Declaration of Willis,

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At least in plaintiff s case, it is not a knowable fact whether the drink alone burned 100

2 calories because he never consumed the drink alone, but always with other food and drink of various
3 and unknowing caloric amounts with various amounts of exercise. Regardless, he never kept track of any of this. These facts will never change. If plaintiff cannot answer this question now, he never will.

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6 If he cannot prove that Defendant Celsius' product did not cause him to burn up to 100 calories, then how can he prove the label which promised this was false? There will never be any records of caloric

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consumption, nor even any explanation of why he gained or lost weight. One would think that it would be easy to show whether or not the locks in Kwikset contained -parts not made or assembled in the U.S.A.; either they did or were or they did not or were not. All the locks were the same. Hence, plaintiff there could ''truthfully allege" that they were deceived by the product's label. Here, based upon the evidentiary record, the best plaintiff could ever ''truthfully

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allege" is that he bought Defendant Celsius' product because it promised up to 100 calories burned per can, and that maybe it worked as advertised and maybe not, but, all he knows is that after consuming it for a period of months, and after the Thanksgiving and Christmas holidays, he weighed more than when he started drinking it. This is akin to the plaintiff in Kwikset truthfully alleging he bought a lock supposedly made in the U.S.A., and what he got was a working lock, but he cannot be sure where it was made. That would not survive demurrer.

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All plaintiff can truthfully prove here does not survive summary judgment. Plaintiff can never establish whether Defendant Celsius' product "worked as promised" or not

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24 and, thus, cannot truthfully allege he was deceived by the product's label and that the label caused him
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to wrongfully part with his money. He, thus, has suffered no injury and, accordingly, has no standing. Plaintiff cannot demonstrate that he suffered any cognizable harm that was immediately caused by any of Defendant Celsius' alleged statements,based upon the above undisputed facts. As

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Defendant Celsius points out, "[P]laintiff's claim that he did not experience 'the calories and/or weight loss advertised by Celsius' is based solely upon a single inference-that Celsius must be ineffective

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because Plaintiff gained 10 pounds while drinking Celsius over the holiday season, despite the fact that (1) Plaintiff admittedly did not pay attention to his caloric intake, and (2) Plaintiff lost two pounds

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after the holiday season in January 20 1O---while admittedly still drinking Celsius." (See "Motion for a Finding of No Merit," 12:20-24 [via the August 2, 2011 "Notice of Ruling, " this court is considering

the issue of standing as it was raised in allfour of Defendant Celsius' motions on this date]).
Defendant Celsius, then, is entitled to summary adjudication of this issue.

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2.

Violation of California Business & Professions Code Section 17500. et seq.

Plaintiff has alleged, in pertinent part, that: "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 all California consumers similarly situated who at any time during the four years prior to the filing of the instant Action purchased Celsius after they were exposed to advertisements, packaging, and/or marketing claims that Celsius is able to 'Burn up to 100 Calories' and/or more per can. Plaintiffhas standing to pursue this claim as Plaintiff has suffered an injury in fact from money lost as a direct and proximate result of Defendant's false advertising and unfair business practices." (Complaint, mI 41; emphasis added). Business & Professions Code 17500 states as follows: "It is unlawful for any person, firm corporation or association, or any employee thereof with intent directly or indirectly to dispose of real or personal property or to perform services, professional or otherwise, or anything of any nature whatsoever or to induce the public to enter into any obligation relating thereto, to make or disseminate or cause to be made or disseminated from this state before the public in any state, in any newspaper or other publication, or any advertising device, or by public outcry or proclamation, or in any other manner or means whatever, including over the Internet, any statement, concerning that real or personal property or those services, professional or otherwise, or concerning any circumstance or matter of fact connected with the proposed performance or disposition thereof, which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading, or for any person, firm, or corporation to so make or disseminate or cause to be so made or disseminated any such statement as part of a plan or scheme with the intent not to sell that personal property or those services, professional or otherwise, so advertised at the price stated therein, or as so advertised. Any violation of the provisions of this section is 14

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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 that imprisonment and fine." (Emphasis added).

Plaintiff, again, being unable to show that he lost money wrongfully, has not suffered an "injury in fact." (see above). Defendant Celsius, then, is entitled to summary adjudication of this issue.

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Defendant Celsius also moves this court, per CC 1781, for an order that plaintiff s CLRA 9 10 11 claim has no merit. Plaintiff, during his deposition, was asked about the claims for Celsius that he viewed in all media that he believed were unfair, misleading, deceptive or false in any way. He was shown five 15- or 3D-second TV commercials for Celsius that aired in a variety of advertising markets from September 2009 to December 2009. He was not able to identify any of these commercials as being the one he saw that motivated him to visit GMC to purchase Celsius in late September to early October 2009, although it is unclear if he was shown the entire universe of commercials for this market. Since the only marketing or advertising plaintiff could positively identify was the Celsius can 17 18 19 20 itself, he was shown the can label in use at the time he made his Celsius purchases, and asked to identify the false or misleading claims on the label. He testified that the calorie-burning claims for Celsius that appear on the can lahel--that Celsius "Burns Calories!" and "Burn up to 100 calories or more in each can!"-are unfair and

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Motion for a Finding of No Merit

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22 misleading because he believed that when he read "Burn Calories" on the label he understood that this
23 meant that drinking Celsius would cause him to lose weight. Plaintiff, however, also testified that he

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never measured his metabolism or caloric consumption at any time he was drinking Celsius. He never 25

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kept written records of his weight at any given time; instead, he tracked it by memory. He also admitted that, despite his assertion in interrogatory answers that he gained ten pounds during the period he drank Celsius, he also lost two pounds at the tail end of the period during which he drank Celsius regularly. He said he lost those two pounds after the Thanksgiving and Christmas holiday

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7 8 season, during which time he partook of fattening foods such as stuffing, cranberry sauce and apple pie. He admitted that during the period he drank Celsius, he did not pay strict attention to reducing calories from the foods he ate. Defendant Celsius' motion is GRANTED. CC 1781 states, in pertinent part, as follows: "(a) Any consumer entitled to bring an action under Section 2780 may, if the unlawful method, act, or practice has caused damage to other consumers similarly situated, bring an action on behalf of himself and such other consumers to recover damages 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 at least 10 days prior thereto, the court shall hold a hearing, upon motion of any party to the action which is supported by affidavit of any person or persons having knowledge of the facts, to determine if any of the following apply to the action: ...

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(3) The action is without merit or there is no defense to the action.

A motion based upon Section 437 c of the Code of Civil Procedure shall not be granted in any action commenced as a class action pursuant to subdivision (a)." (Emphasis added). "The eLRA declares numerous practices in the sale of goods or services to conswners to be unlawful. (Civ. Code, 1770, subd. (a. Among the practices deemed unlawful under the CLRA are: '[r]epresenting that goods ... have ... characteristics, ... uses, [or] benefits ... which they do not have' (Civ.Code, 1770, subd. (a)(5); '[r]epresenting that goods ... are of a particular standard, quality, or grade ... if they are of another' (Civ.Code, 1770, subd. (a)(7); and '[a]dvertising goods ... with intent not to sell them as advertised' (Civ.Code, 1770, subd. (a)(9. "The CLRA then provides that '[a]ny

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consumer who suffers any damage as a result of the use or employment by any person of a method, 25

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act, or practice declared to be unlawful by [Civil Code s]ection 1770 may bring an action against that person to recover or obtain' actual damages, an injunction, restitution, and punitive damages.

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(Civ.Code, 780, subd. (a))." In re Vioxx Class Cases (2009) 180 Cal.App.4th 116, 128-129. "The language of the CLRA allows recovery when a consumer 'suffers damage as a result of the unlawful practice. This provision 'requires that plaintiffs in a CLRA action show not only that a defendant'S

conduct was deceptive but that the deception caused them harm.' (Massachusetts Mutual Life Ins.
Co .... [2002] 97 Cal.App.4th [1282,] at 1292)." Id. at 129 (Emphasis added). Plaintiff cannot make this showing. He has alleged, in pertinent part, as follows:

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"12. Plaintiff last purchased Celsius in January, 2010, at a GNC store in California for
his personal use. At that time, Plaintiff was a frequent purchaser of Celsius who had read, relied upon, and believed the packaging and marketing, which represented on the face of the product that consuming Celsius would cause him to lose weight. But,

despite consuming Celsius as directed, Plaintiff has experienced none of its promised benefits and has since discovered Defendant'S representations are unsubstantiated Plaintiff 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 unique Calorie burning and dietary features. Specifically, Defendant claims that Celsius will 'Burn up to 100 Calories' andlor more in each can. These representations have had their intended effect- creating in Plaintiff thefalse belief that consuming Celsius would cause 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 as

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advertised or lose weight and could not have done S(Jmerely by drinking a can of Celsius. As a result, each can of Celsius purchased by Plaintiffwas entirely worthless to
him. 26. Defendant's marketing statements are material misrepresentations that arefalse

and misleading, as they are based on an advertising campaign which leaves reasonable consumers with thefalse impression that consuming Celsius will cause himlher to lose weight by 'Burn[ing] up to 100 Calories' and/or more per can. Based thereon,
Defendant has engaged (and continues to engage) in conduct in violation of California Civil Code Section 1770(a)(5) by '[r]epresenting that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have ... ' 27. Plaintiff purchased Celsius for his own personal use in reliance on the marketing claims challenged herein, but theproduct did not work as advertised. Plaintiff alleges that Defendant's representations that Celsius contains unique features that would rapidly bum calories and cause weight loss were known andlor intended by Defendant to induce reliance by California consumers such as Plaintiff, and that members of the proposed Class acted in reliance on these representations when making the decision to purchase Celsius ... 31. Defendant's wrongful business practices have caused injury to Plaintiff and the Class ... " (Complaint, 11 12, 3:3-10, 1m 25-27,6:12-7:4 and 11 31, 7:13-14; emphasis added). 17

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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."

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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 if Defendant Celsius' product, in fact, burned "up to" 100 calories when he consumed the drink. Obviously, if it did, the advertising would

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16 later. Had he that intent, perhaps the missing records and evidence showing that Defendant Celsius'
17 18 19 never establish standing if he is required to show a product like Celsius did not ''work as promised." 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

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23 24 25 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 is measured; 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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a battle of experts where a defendant could be found civilly liable for "false advertising" without any proof that the product did not "work as promised" when actually consumed by any consumer. Absent something specific about why this product failed to produce the desired results, given the consumer's unique personal physiology and history, he becomes an irrelevancy in this larger

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9 expert battle, other than being the original key to the courthouse door. Here, there is an absolute dearth of evidence as to the particular circumstances of this plaintiff to ever conclude that the mere fact he gained weight was due to some fault with the product, regardless of what experts may say about the relative merits or lack of same about this product

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11 Defendant Celsius' Motion for Summary Judgment is DENIED; however, its Motion for Summary Adjudication is GRANTED as to Issues Nos. 1 and 2. Defendant Celsius' Motion for a

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Finding of No Merit is GRANTED. Judgment is entered for Defendant Celsius, as of the date of this

15 ORDER. 16 17 DATED: ______ 18 19 20 21 22 23 24 25 26 27 28 19 ,2011

Honorable Terry Green Los Angeles Superior Court