Julian Engel v. Novex Biotech, LLC

FILED
NOT FOR PUBLICATION
APR 21 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JULIAN ENGEL, an Individual, On No. 15-15492
Behalf of Himself and All Others Similarly
Situated, D.C. No. 3:114-cv-03457-MEJ

Plaintiff-Appellant,
MEMORANDUM*
v.

NOVEX BIOTECH, LLC, a Utah Limited
Liability Company and GNC
CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of California
Maria-Elena James, Magistrate Judge, Presiding

Argued and Submitted January 12, 2017
San Francisco, California

Before: WALLACE and M. SMITH, Circuit Judges, and ERICKSON,** District
Judge.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Ralph R. Erickson, United States District Judge for the
District of North Dakota, sitting by designation.
Julian Engel appeals from the district court judgment dismissing his second

amended complaint for failing to state a claim upon which relief can be granted.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

For the reasons stated in a concurrently filed opinion in Serena Kwan, et al.

v. SanMedica International, No. 15-15496,1 the district court correctly applied

established California law. Neither California’s Unfair Competition Law (‘the

UCL”) nor its Consumer Legal Remedies Act (“the CLRA”) provides consumers

with a private cause of action to enforce the substantiation provisions of

California’s unfair competition or consumer protection laws.

As in Kwan, the district court did not err in concluding that Engel’s second

amended complaint did not allege sufficient facts to support a claim that

defendant’s advertising claims were actually false. The second amended complaint

rests on allegations that defendant’s marketing claims are not supported by any

reliable clinical trials and that a comprehensive search could not produce any

publication to support claims that defendant’s product, Growth Factor-9, was

clinically tested as claimed on its packaging. These allegations do not support a

finding that the advertising claims are actually false, only that they lack

1
For purposes of oral argument only, we consolidated this appeal with the
appeal in Kwan.
2
substantiation. As it did in Kwan, the district court appropriately declined Engel’s

invitation to incorporate Lanham Act analysis into California consumer protection

law. The district court did not err in granting the motion to dismiss Engel’s second

amended complaint.

Further, as in Kwan, the district court provided ample guidance for Engel to

allege successfully a claim of actual falsehood when it dismissed the first amended

complaint with leave to amend. Therefore, the court did not err in dismissing the

second amended complaint with prejudice.

AFFIRMED.