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Pritchett v. Avon Products11/18/2002
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiff Victoria Pritchett appeals from a judgment of dismissal after the trial court sustained defendant Avon Products, Inc.'s demurrer to her complaint for products liability and fraud. Pritchett contends it was error to sustain the demurrer to her products liability claim without leave to amend because the one-year statute of limitations was tolled due to Avon's fraudulent concealment of facts. She further contends her complaint stated a cause of action for fraud as representations about the product's safety were not mere puffery and it was error to deny leave to amend on the grounds that there was no such request.
We conclude the products liability claim is barred by the one-year statute of limitations. Avon did not assert the statute of limitations as a defense to the fraud claim, even though Avon contends Pritchett is simply recasting her products liability claim as one of fraud to avoid the statute of limitations. Pritchett's fraud allegations contain sufficient specificity to survive a demurrer. We reverse the judgment and direct the trial court to overrule the demurrer to the fraud claim.
FACTUAL AND PROCEDURAL BACKGROUND
On November 29, 2000, Pritchett filed a complaint against Avon for products liability and fraud. She sought compensatory and exemplary damages. Pritchett alleged that on or about April or May 1998, she put Avon's facial cream on her face and sustained severe facial burns and injuries.
The complaint contained extensive allegations to support the fraud claim, based on both misrepresentation and concealment. Pritchett alleged Avon produced television and magazine ads about its product, ANEW All-In One Perfecting Complex, SPF-15. She saw these ads before purchasing the product. In the ads Avon made the following representations about the product: "The product really worked [ ] The user had nothing to lose using the product, [ ] The product was improved, [ ] You will see results in two weeks-guaranteed. [ ] Avon is great, [ ] Avon's products are guaranteed." The ads also implied the product was good for your skin, users would have good results, and use of the product would improve one's skin appearance.
Avon also produced catalogs, brochures, sales material and product packaging about the product. Pritchett saw these materials before she bought the product. In these materials Avon made the following representations about the products: "Good for your skin/complexion [ ], Will improve your skin appearance, [ ] The product is guaranteed, [ ] The product is tested, The product is safe to use [ ], and The product is backed by Avon."
Avon trained and employed sales representatives to sell ANEW All-In One Perfecting Complex, SPF-15. These representatives were trained to make statements about the product that it was good for the skin and complexion, would improve the appearance of skin, was guaranteed, was safe to use, and was backed by Avon. Bunny Riddle, an Avon sales representative, provided Pritchett with ANEW All-In One Perfecting Complex, SPF-15 and made statements that it was good for her skin. Riddle may also have made one or more of the above representations about the product.
Avon has a Product Liability Claims Department that handles consumer complaints. Once ANEW All-In One Perfecting Complex, SPF-15 and other alpha-hydroxy acids in the ANEW line were distribute
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