FERGUSON v. WALGREEN CO.

LAW AND MOTION TENTATIVE RULINGS DATE: AUGUST 27, 2026 TIME: 8:30 A.M.

PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE

1a-1d: The Court declines to take notice of these documents which are already part of the file in this case (case no. 26CV00633).

2a-2g: Documents in KC DBW1, LLC v. SC Bloom Network, Inc. (Superior Court of California, County of Santa Cruz case no. 22CV01122): Granted.

3a-3b: Documents in Cavalry SPV I, LLC As Assignee of Citibank, N.A. v. William Sump (Superior Court of California, County of Santa Cruz case no. 23CV01434): Granted.

4a-4b: Documents in William Sump, et al. v. Nathaniel Ready, et al (Superior Court of California, County of Santa Cruz case no. 18CV03384): Granted.

5a-5b: Documents in Bay Federal Credit Union v. William Sump, II (Superior Court of California, County of Santa Cruz case no. 20CV00211): Granted.

6a-6b: Documents in William Sump et al v. Nathaniel Ready et al (Superior Court of California, County of Santa Clara case no. 20CV366437): Granted.

7a-7c: Documents in SC Bloom Network, Inc. v. Justin Hudak (Superior Court of California, County off Santa Cruz case no. 22CV01441): Granted.

8a-8b: Documents in William Sump v. Benajmin Chapin (Superior Court of California, County of Santa Cruz case no. 23CV00443): Granted.

9a-9c: Documents in Seven Zero Seven LLC v. LSC Bloom Network, Inc. (Superior Court of California, County of Santa Clara case no. 24CV432846): Granted.

10a-10b: Documents in SC Bloom Network, Inc. v. Old Republic Title (Superior Court of California, County of Santa Cruz case no. 25CV010890): Granted.

11a-11b: Documents in Jeanne Carhart v. SC Bloom Network, Inc. (Superior Court of California, County of Santa Cruz case no. 26CV02325): Granted.

No. 26CV01339

FERGUSON v. WALGREEN CO.

DEFENDANT’S DEMURRER

The demurrer is overruled.

LAW AND MOTION TENTATIVE RULINGS DATE: AUGUST 27, 2026 TIME: 8:30 A.M.

I. BACKGROUND

On April 20, 2026, plaintiff Jason Ferguson sued Walgreen Co. for unfair competition (all three prongs – unlawful, fraudulent and unfair), false advertising, and violation of the Consumer Legal Remedies Act related to defendant Walgreen Co.’s sale of “Men’s Testosterone Complex Dietary Supplement.” Plaintiff contends the product is ineffective and the product’s claims are prohibited by the federal Food, Drug, and Cosmetic Act (“FDCA”) and subjects defendant to unapproved new drug liabilities and penalties.

Defendant demurs to all five causes of action on the grounds plaintiff has failed to allege facts sufficient to constitute any cause of action.

II. LEGAL STANDARDS

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.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ....” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)

In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) 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, supra, 147 Cal.App.4th at 747.)

III. DISCUSSION

A. Unfair competition (Bus. & Prof. Code § 17200)

The purpose of the UCL “is to protect both consumers and competitors by promoting fair competition in commercial markets for goods and services.” (Drum v. San Fernando Valley Bar Assn. (2010) 182 Cal.App.4th 247, 252 citing Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 949.) Business and Professions Code section 17200 provides: “[a]s used in this chapter, unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code.” (Progressive West Ins. Co. v. Superior Court (2005) 135 Cal.App.4th 263, 284.) Because the UCL is written in the disjunctive, it establishes three varieties of unfair competition -- acts or

LAW AND MOTION TENTATIVE RULINGS DATE: AUGUST 27, 2026 TIME: 8:30 A.M.

practices which are unlawful, unfair, or fraudulent. (Adhav v. Midway Rent a Car, Inc. (2019) 37 Cal.App.5th 954, 970.)

1. Unfair, fraudulent, or unlawful practices

“The balancing test required by the unfair business practice prong of section 17200 is fact intensive and is not conducive to resolution at the demurrer stage. ‘[U]nfairness’ is an equitable concept that cannot be mechanistically determined under the relatively rigid legal rules applicable to the sustaining or overruling of a demurrer.” (Progressive West Ins. Co. v. Superior Court (2005) 135 Cal.App.4th 263, 287 citing Schnall v. Hertz Corp. (2000) 78 Cal.App.4th 1144, 1167.)

“A fraudulent business practice under section 17200 ‘is not based upon proof of the common law tort of deceit or deception, but is instead premised on whether the public is likely to be deceived.’” (Progressive West Ins. Co. v. Superior Court (2005) 135 Cal.App.4th 263, 284.) “In order to state a cause of action under the fraud prong of [section 17200] a plaintiff need not show that he or others were actually deceived or confused by the conduct or business practice in question. ‘The ‘fraud’ prong of [section 17200] is unlike common law fraud or deception. A violation can be shown even if no one was actually deceived, relied upon the fraudulent practice, or sustained any damage. Instead, it is only necessary to show that members of the public are likely to be deceived.’ [Citations.]” (Ibid.)

Unlawful practices require an allegation of a violation of a law. (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1505.) Under the “unlawful” prong of the UCL, a plaintiff may “borrow” from other laws. “‘Unlawful business activity’ proscribed under section 17200 includes ‘anything that can properly be called a business practice and that at the same time is forbidden by law.’ [Citation.] As the People observe in their brief on the merits, ‘[i]n essence, an action based on Business and Professions Code section 17200 to redress an unlawful business practice ‘borrows’ violations of other laws and treats these violations, when committed pursuant to business activity, as unlawful practices independently actionable under section 17200 et seq. and subject to the distinct remedies provided thereunder.” (Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 383.)

At the pleading stage, plaintiff’s allegations are sufficient. The complaint alleges defendant’s misrepresentations on the product’s packaging and advertising, its unfair practices in marketing a deceptive product, and its unlawful acts in marketing, selling and distributing the product in violation of several Health & Safety Codes. (Complaint ¶¶ 42-55, 66-68.)

LAW AND MOTION TENTATIVE RULINGS DATE: AUGUST 27, 2026 TIME: 8:30 A.M.

Further, the Court finds that plaintiff’s UCL claims are not preempted as defendants argue. State law is not preempted when it parallels federal law. (Coleman v. Medtronic, Inc. (2014) 223 Cal.App.4th 413, 425 (“[I]f a plaintiff’s state law claims are based on requirements that parallel federal law, they are not expressly preempted.”); Bates v. Dow Agrosciences L.L.C., (2005) 544 U.S. 431, 442 (“Nothing [...] would prevent a state from making the violation of a federal labeling or packaging requirement a state offense, thereby imposing its own sanction on pesticide manufacturers who violate federal law.”).

States may allow a private cause of action in areas regulated by the FDCA where the state’s law imposes the same requirements as the FDCA or is otherwise excluded from preemption. (Bates, 544 U.S. at 440-42.) Plaintiff’s claims under California laws impose identical requirements to those of the FDCA. (See Cal. Health & Safety Code §§ 110110-110111, 110115; Complaint ¶¶ 3-9, 35-41, 68, 77-87.)

B. False advertising (Bus. & Prof. Code § 17500)

The necessary elements for false advertising are: (1) the defendant intended to dispose of real or personal property or perform services; and (2) defendant publicly disseminated advertising containing an untrue or misleading statement which they knew or should have known was untrue or misleading; and (3) the false statement concerned the real or personal property or services or their disposition or performance. (Business and Professions Code § 17500.)

To state a claim based on false advertising or promotional practices, it is necessary only to show that members of the public are likely to be deceived. This is determined by considering a reasonable consumer who is neither the most vigilant and suspicious of advertising claims nor the most unwary and unsophisticated, but instead is “the ordinary consumer within the target population.” (Lavie v. Procter & Gamble Co. (2003) 105 Cal.App.4th 496, 509-510.) “ ‘Likely to deceive’ implies more than a mere possibility that the advertisement might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner.

Rather, the phrase indicates that the ad is such that it is probable that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.” (Id. at 508.) The question whether consumers are likely to be deceived is a question of fact that can be decided on a demurrer only if the facts alleged in the complaint, and facts judicially noticed, compel the conclusion as a matter of law that consumers are not likely to be deceived. (Chapman v.

Skype Inc. (2013) 220 Cal.App.4th 217, 226-227.)

Generally, both parties’ arguments go to the merits of the underlying claims. They both argue the merits of the studies cited in the complaint but the Court need not rely on those studies in deciding if plaintiff has met his pleading standards. The complaint alleges that the product’s claims are misleading, fail to deliver the advertised benefits, and consumers risk purchasing the product that will not effectively treat their condition or may endanger their health. (Complaint ¶¶ 45-55, 62.) Therefore, the demurrer to the fourth cause of action is overruled.

LAW AND MOTION TENTATIVE RULINGS DATE: AUGUST 27, 2026 TIME: 8:30 A.M.

C. Violation of the Consumer Legal Remedies Act (Civ. Code § 1750)

The California Consumers Legal Remedies Act (“CLRA”), Civil Code section 1750 et seq., protects consumers from a broad range of unfair or deceptive business practices. One of those practices is “[m]aking false or misleading statements of fact concerning . . . [the] existence of, or amounts of, price reductions.” (Civ. Code Proc. § 1770.) The necessary elements of a CLRA cause of action are: (1) a consumer; (2) who suffers any damage; (3) because of the use or employment by any person of a method, act, or practice declared to be unlawful by Civil Code section 1770. (Civ. Code, §1780, subd. (a); Buckland v. Threshold Ent., Ltd. (2007) 155 Cal.App.4th 798, 809, 811 [“actual reliance is an element of a CLRA claim sounding in fraud”], overruled in other part by Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 326-327.)

“Our Supreme Court has interpreted the CLRA’s ‘any damage’ requirement broadly, concluding that the ‘phrase . . . is not synonymous with “actual damages,” which generally refers to pecuniary damages.’ Rather, the consumer must merely ‘experience some kind of damage,’ or ‘some type of increased costs’ as a result of the unlawful practice.” (Hansen v. Newegg.com Americas, Inc. (2018) 25 Cal.App.5th 714, 724 [citations omitted].)

Here, the complaint alleges that plaintiff (the consumer) suffered damage (economic injury) because of the use or employment of defendant’s acts of representing the product had characteristics, uses or benefits it did not have and represented that the product met a standard it did not. (Complaint ¶¶ 42-55, 77-87.) Further, the Court similarly finds that plaintiff’s CRLA claims are not preempted (see ante). The demurrer to the fifth cause of action is overruled.

D. Defendant’s request for judicial notice

The Court denies defendant’s requests Exhibits A through E (medical literature) on the grounds they constitute facts that are reasonably subject to dispute and are not capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (Evid. Code § 452, subd. (h); Sanchez v. Kern Emergency Medical Transportation Corp. (2017) 8 Cal.App.5th 146, 154.) While these medical studies are cited in the complaint, they are also not material to the Court’s ruling.