Ordinary summary judgment standards apply to false advertising claims under the UCL. The plaintiff can defeat a defendant’s summary judgment motion by presenting expert or other evidence that, if believed, would prove that the defendant’s advertising claims are false. Even if the defendant presents contrary expert testimony, summary judgment is inappropriate because the conflicting evidence including conflicting expert opinions create a genuine issue of fact for resolution at trial. To prove a UCL violation, a plaintiff need not show that no expert would find support for the advertising claim; rather, the plaintiff need merely convince the judge or jury of the claim’s falsity by a preponderance of the evidence. Here, the plaintiff’s expert and other evidence, if believed, showed that defendant’s ginkgo-infused pills had no mind-sharpening properties, contrary to the defendant’s advertising claims. That was enough to defeat the defendant’s summary judgment motion. Plaintiff’s claim was also not an improper contention that defendant lacked substantiation for its advertising claims. Plaintiff bore the burden of proving the advertising false and did not try to shift the burden of proof to the defendant as a lack of substantiation claim would.
Ninth Circuit Court of Appeals (per curiam); December 26, 2018; 2018 U.S. App. LEXIS 36460