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Dana Bostick v. Herbalife International of America Inc et al

MEMORANDUM in Opposition to MOTION for Order for Granting Defendants' Motion to Dismiss the Complaint Pursuant to Fed. R. Civ. Proc. 8, 9

48 Cited authorities

  1. In re Tobacco II Cases

    46 Cal.4th 298 (Cal. 2009)   Cited 1,207 times   35 Legal Analyses
    Holding class representatives had standing to challenge common marketing of cigarettes despite differences in the advertisements or statements on which class members relied

  2. Williams v. Gerber Products

    552 F.3d 934 (9th Cir. 2008)   Cited 929 times   35 Legal Analyses
    Holding that "reasonable consumers expect that the ingredient list ... confirms other representations on the packaging"

  3. Engalla v. Permanente Med. Grp., Inc.

    15 Cal.4th 951 (Cal. 1997)   Cited 1,180 times
    Holding that a party's "course of delay" in performing the terms of the contract, when "unreasonable or undertaken in bad faith, may provide sufficient grounds" for a finding of waiver

  4. Davis v. HSBC Bank Nevada, N.A.

    691 F.3d 1152 (9th Cir. 2012)   Cited 648 times   10 Legal Analyses
    Holding that a "district court's decision to incorporate by reference documents into complaint shall be reviewed for an abuse of discretion"

  5. Kasky v. Nike

    27 Cal.4th 939 (Cal. 2002)   Cited 671 times   6 Legal Analyses
    Holding that statements by the defendant about the working conditions of its overseas employees were not protected by the First Amendment and could give rise to a claim for fraudulent business practices under the UCL

  6. Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Association

    55 Cal.4th 1169 (Cal. 2013)   Cited 235 times   13 Legal Analyses
    Holding that parol evidence may be used to prove promissory fraud

  7. Linear Tech. v. Applied Materials

    152 Cal.App.4th 115 (Cal. Ct. App. 2007)   Cited 217 times   1 Legal Analyses
    Holding a corporate plaintiff "may not rely on the UCL" in a contract action where neither the general public or individual consumers are implicated

  8. Boschma v. Home Loan Center, Inc.

    198 Cal.App.4th 230 (Cal. Ct. App. 2011)   Cited 170 times   2 Legal Analyses
    Concluding that allegation of intent to defraud element of fraud claim was adequately supported by allegations tending to show a "nefarious scheme to deceive consumers"

  9. Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn.

    60 Cal.App.4th 1053 (Cal. Ct. App. 1998)   Cited 227 times   2 Legal Analyses
    Holding that a settlement agreement between state agencies and a housing association that owned beachfront property resolving public claims to beach access was res judicata to a later action brought by a public interest group seeking access to the beach on behalf of the public; plaintiff asserted no other direct interest or injuries to their private property rights

  10. Hinesley v. Oakshade Town Center

    135 Cal.App.4th 289 (Cal. Ct. App. 2005)   Cited 140 times
    Holding that term in lease that disclaimed reliance on representations to contrary is factor to be considered in determining whether reliance on representations was justified and reasonable

  11. Rule 12 - Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing

    Fed. R. Civ. P. 12   Cited 348,148 times   927 Legal Analyses
    Granting the court discretion to exclude matters outside the pleadings presented to the court in defense of a motion to dismiss

  12. Section 17200 - Unfair competition defined

    Cal. Bus. & Prof. Code § 17200   Cited 17,919 times   315 Legal Analyses
    Prohibiting unlawful business practices

  13. Section 45 - Unfair methods of competition unlawful; prevention by Commission

    15 U.S.C. § 45   Cited 3,864 times   565 Legal Analyses
    Providing court-ordered monetary penalties against anyone who engages in conduct previously identified as prohibited in a final cease and desist order, but only if the violator acted with "actual knowledge that such act or practice is unfair or deceptive"

  14. Section 1668 - Exemption from responsibility of own fraud or willful injury

    Cal. Civ. Code § 1668   Cited 619 times   5 Legal Analyses
    Prohibiting contractual waivers, whether "direct or indirect," that "exempt any one from responsibility for his own ... violation of law"

  15. Section 1691 - Notice after discovering facts entitling party to rescind

    Cal. Civ. Code § 1691   Cited 583 times   3 Legal Analyses
    Providing that whether a party delayed in giving notice of an intent to rescind is measured against the time when the party seeking rescission "discovered the facts which entitled him to rescind."

  16. Section 1605 - Benefit conferred upon promisor by other person or prejudice suffered by person

    Cal. Civ. Code § 1605   Cited 348 times   1 Legal Analyses
    Defining "good consideration"

  17. Section 1692 - Relief based upon rescission

    Cal. Civ. Code § 1692   Cited 195 times   1 Legal Analyses

    When a contract has been rescinded in whole or in part, any party to the contract may seek relief based upon such rescission by (a) bringing an action to recover any money or thing owing to him by any other party to the contract as a consequence of such rescission or for any other relief to which he may be entitled under the circumstances or (b) asserting such rescission by way of defense or cross-complaint. If in an action or proceeding a party seeks relief based upon rescission and the court determines

  18. Section 1693 - Relief not denied for delay in giving notice; delay in restoring or tendering restoration of benefits

    Cal. Civ. Code § 1693   Cited 71 times

    When relief based upon rescission is claimed in an action or proceeding, such relief shall not be denied because of delay in giving notice of rescission unless such delay has been substantially prejudicial to the other party. A party who has received benefits by reason of a contract that is subject to rescission and who in an action or proceeding seeks relief based upon rescission shall not be denied relief because of a delay in restoring or in tendering restoration of such benefits before judgment

  19. Section 327 - Endless chain

    Cal. Pen. Code § 327   Cited 26 times

    Every person who contrives, prepares, sets up, proposes, or operates any endless chain is guilty of a public offense, and is punishable by imprisonment in the county jail not exceeding one year or in state prison for 16 months, two, or three years. As used in this section, an "endless chain" means any scheme for the disposal or distribution of property whereby a participant pays a valuable consideration for the chance to receive compensation for introducing one or more additional persons into participation

  20. Section 1812.100 - Legislative findings; purpose of title

    Cal. Civ. Code § 1812.100   Cited 2 times

    (a) The Legislature finds that there exists in connection with a substantial number of contracts for discount buying services, sales practices and business and financing practices which result in fraud, deceit, and financial hardships being perpetrated on the people of the state; that existing legal remedies are inadequate to correct these abuses; that the discount buying industry has a significant impact upon the economy and well-being of this state and its local communities; and that the provisions