National Council Against Health Fraud, Inc. v. King Bio Pharmaceuticals, Inc.

A private plaintiff brought a representative action for unlawful competition (Bus. & Prof. Code, § 17200 et seq..) and false advertising (Bus. & Prof. Code, § 17500 et seq.) against a seller of homeopathic remedies. After the close of plaintiffs case-in-chief in a court trial, judgment was entered in favor of the seller. The trial court imposed the burden of proving that the advertising claims were false or misleading on plaintiff. On appeal, plaintiff acknowledges the trial court correctly imposed the burden of proof under current California law, but contends the law should be changed to impose the burden of proof on a defendant in a false advertising action. In the published portion of this opinion, we conclude the burden of proof properly rests with the plaintiff in such actions. In the unpublished portion of this opinion, we discuss plaintiffs contentions concerning discovery and the contentions of amicus curiae. We affirm.

Procedural Background

Plaintiff and appellant National Council Against Health Fraud, Inc. (NCAHF) brought a representative action against defendants and respondents King Bid Pharmaceuticals, Inc., and its president Frank J. King, Jr.…