BACKGROUND

14 Both Woodway and Assault Fitness produce “non-motorized exercise treadmills” 15 that have a curved running surface. (ECF 29, at 3.) They both advertise that their treadmills 16 help “burn up to ‘30% more calories’” than motorized treadmills and “can last ‘up to 17 150,000 miles’ without the need for substitution or repair.” (Id. at 5–6.) Woodway sued 18 Assault Fitness for—among other things—the use of these statements, alleging false 19 designation of origin, false advertising under federal and California law, and various 20 California consumer-law violations. (See ECF 1.) After the Court granted Assault Fitness’s 21 motion to dismiss these specific claims (ECF 25), Woodway amended its complaint to 22 eliminate all causes of action arising out of Assault Fitness’s use of these advertising 23 statements except for two federal false-advertising claims: one arising out of Assault 24 Fitness’s use of the advertising statements and one stemming from a third party’s use of 25 the statements to advertise Assault Fitness’s products. (See ECF 29.) Assault Fitness moves 26 to dismiss once again. (ECF 30.) 27 28 1 DISCUSSION 2 To survive a motion to dismiss, the complaint must contain enough facts to “state a 3 claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 4 (cleaned up). The Court accepts “the factual allegations in the complaint as true” and 5 construes them “in the light most favorable to the plaintiff.” GP Vincent II v. Estate of 6 Beard, 68 F.4th 508, 514 (9th Cir. 2023). Mere “conclusory allegations of law and 7 unwarranted inferences are insufficient to defeat a motion to dismiss.” Adams v. Johnson, 8 355 F.3d 1179, 1183 (9th Cir. 2004). 9 Claims sounding in fraud face a higher bar: they “must state with particularity the 10 circumstances constituting fraud.” Fed. R. Civ. P. 9(b). As noted in the prior dismissal 11 order, Woodway’s complaint is subject to this standard. (ECF 25, at 3.) Woodway must 12 therefore plead “the who, what, when, where, and how of the misconduct charged.” Vess 13 v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003). Like last time, Woodway 14 satisfies the who (Assault Fitness), what (caloric-expenditure and durability advertising 15 statements), when (various dates beginning in February 2017), and where (within multiple 16 advertisements) requirements. (See ECF 29, at 7–10.) Only the “how” is at issue. 17 A. False Advertising 18 To state a federal false-advertising claim, Woodway must allege, among other 19 things, that Assault Fitness made “a false statement of fact” “in a commercial 20 advertisement.” Wells Fargo & Co. v. ABD Ins. & Fin. Servs., 758 F.3d 1069, 1071 (9th 21 Cir. 2014) (cleaned up). Plaintiffs may demonstrate falsity by showing either that (1) “the 22 statement was literally false” or (2) “the statement was literally true but likely to mislead 23 or confuse consumers.” Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139–40 24 (9th Cir. 1997). Woodway pleads both theories. 25 1. Literally False 26 Woodway alleges that Assault Fitness’s 30%-more-calories and 150,000-miles 27 statements are literally false for one simple reason: “the Assault Treadmills do not cause 28 users to burn up to 30% more calories” and “their running surfaces cannot last up to 1 150,000 miles.” (ECF 29, at 12.) To back up this contention, Woodway claims that “no 2 testing was done to determine that the Assault Treadmills’ running surfaces can last up to 3 150,000 miles” and that Assault Fitness “has no basis in fact to directly or indirectly 4 promote or advertise the Assault Treadmills using” the 30%-more-calories and 5 150,000-miles statements. (Id. at 9–10.) But this claim, grounded in the same assertions, 6 has already been rejected. 7 As this Court noted in its last motion-to-dismiss order, the “plain language of” the 8 federal false-advertising statute, “which prohibits false rather than unsubstantiated 9 representations, requires that a plaintiff establish not merely that the defendant’s claims 10 lack substantiation but also that it is false or deceptive.” U-Haul Int’l v. Jartran, Inc., 11 522 F. Supp. 1238, 1248 (D. Ariz. 1981) (cleaned up); (see ECF 25, at 5). Thus, 12 Woodway’s claim “cannot prevail because it is a ‘lack of substantiation’ argument, and a 13 false advertising claim cannot be proved on ‘lack of substantiation’ grounds.” Caltex 14 Plastics v. Elkay Plastics Co., No. 2:12-cv-10033 RSWL (JEMx), 2015 WL 13283255, at 15 *5 (C.D. Cal. Feb. 4, 2015); see also Sandoz Pharms. v. Richardson-Vicks, Inc., 902 F.2d 16 222, 228 (3d Cir. 1990) (“[P]laintiff bears the burden of showing that a challenged 17 advertisement is false or misleading, not merely that it is unsubstantiated by acceptable 18 tests or other proof.” (cleaned up)). 19 2. Likely to Mislead or Confuse 20 Alternatively, Woodway asserts that the advertising statements may be “literally 21 true” but are “likely to mislead, confuse, or deceive a substantial segment of consumers.” 22 (ECF 29, at 13.) To prevail under this theory, “a plaintiff must allege that the false 23 advertising relates to the ‘nature, characteristic qualities, or geographic origin’ of the 24 service.” San Diego Cnty. Credit Union v. Citizens Equity First Credit Union, 25 360 F. Supp. 3d 1039, 1054 (S.D. Cal. 2019); 15 U.S.C. § 1125(a)(1)(B). Yet Woodway’s 26 sole argument is that consumers will be confused due to the “association” of the disputed 27 advertising statements “with Woodway and Woodway’s” treadmills. (ECF 29, at 13.) In 28 other words, Woodway argues “false attribution of the authorship of” the 1 ||30%-more-calories and 150,000-miles ideas. See Baden Sports v. Molten USA, Inc., 2 F.3d 1300, 1308 (Fed. Cir. 2009) (emphasis added). Woodway’s claims thus “do not 3 ||go to the ‘nature, characteristics, or qualities’ of the goods, and are therefore not 4 || actionable.” See id. (cleaned up). “To find otherwise, i.e., to allow [Woodway] to proceed 5 || with a false advertising claim that is fundamentally about the origin of an idea, 1s contrary 6 || to the Ninth Circuit’s interpretation” of Supreme Court caselaw. See id. 7 In short, Woodway cannot prevail under either false-advertising theory. 8 CONCLUSION 9 Assault Fitness’s motion to dismiss is GRANTED without leave to amend. See 10 || Chodos v. West Publ’g, 292 F.3d 992, 1003 (9th Cir. 2002) (“[W]hen a district court has 11 already granted a plaintiff leave to amend, its discretion in deciding subsequent motions to 12 ||amend is particularly broad.” (cleaned up)). Assault Fitness’s deadline to respond to the 13 |} surviving claims is September 30, 2025. The September 12, 2025 hearing is vacated, and 14 || the joint motion to continue that hearing (ECF 34) is denied as moot. 15 ||Dated: September 8, 2025 16 i 7 Hon. rew G. Schopler United States District Judge 18 19 20 21 22 23 24 25 26 27 28