Case 2:11-cv-05379-CJC-AGR Document 1 Filed 06/28/11 Page 1 of 37 Page ID #:3
`Case :11-cv-05379-CJC-AGR Documentl Filed 06/28/11 Pagelof 37 Page|D#:3
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`1 Milber LLP
`IEFF . WESTERMAN (SBN 94559)
`2 Jwesterman@milberg.com
`One California Plaza
`3 300 S. Grand Avenue, Suite 3900
`Los Angeles, CA 90071
`4 Telephone: (213) 617—1200
`Facsnnile: (213) 617—1975
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`UNITED STATES DISTRICT COURT
`‘
`CENTRAL DISTRICT OF CALIFORNIA ’
`Cafiivoii"0537%I/\M
`
`12 ROBERT BRISENO, individually and on
`behalf of all others similarly situated,
`
`13
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`CLASS ACTION
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`COMPLAINT FOR:
`
`Plaintiff,
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`V,
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`CONAGRA FOODS, INC,
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`Defendant.
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`.
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`(1)Vlolat10n of Ca11forn1a Busmess
`& Professions Code § 17500 et
`seq;
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`_
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`(2)V101at10n of Ca11forn1a Bus1ness
`& Professions Code § 17200 et
`seq.;
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`.
`.
`.
`,
`_
`(3)V101at10n of Ca11forn1a C1V11
`Code §1750 et seq; and
`(4) Breach of Express Warranty
`DEMAND FOR JURY TRIAL
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`CLASS ACTION COMPLAINT — CASE NO.:
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`Case 2:11-cv-05379-CJC-AGR Document 1 Filed 06/28/11 Page 2 of 37 Page ID #:4
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`TABLE OF CONTENTS
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`Page
`NATURE OF ACTION AND SUMMARY OF ALLEGATIONS ..........................1
`JURISDICTION AND VENUE................................................................................2
`THE PARTIES ..........................................................................................................3
`FACTUAL ALLEGATIONS....................................................................................3
`ConAgra Advertises Wesson Oils As “100% Natural” ..................................3
`Wesson Oils Are From Genetically Modified Organisms..............................4
`Genetically Modified Organisms Are Not “100% Natural” ...........................6
`CLASS ALLEGATIONS..........................................................................................8
`COUNT I Violation of California Business & Professions Code § 17500 et
`seq....................................................................................................................9
`COUNT II Violation of California Business & Professions Code § 17200 et
`seq..................................................................................................................10
`COUNT III Violation of the California Consumers Legal Remedies Act –
`Cal. Civ. Code § 1750 et seq. (Injunctive Relief Only)...............................12
`COUNT IV Breach of Express Warranty................................................................14
`PRAYER FOR RELIEF ..........................................................................................15
`DEMAND FOR JURY TRIAL ...............................................................................16
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`CLASS ACTION COMPLAINT
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`Case 2:11-cv-05379-CJC-AGR Document 1 Filed 06/28/11 Page 3 of 37 Page ID #:5
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`Plaintiff Robert Briseño (“Plaintiff”), individually and on behalf of all others
`similarly situated, alleges the following upon personal knowledge as to his own
`acts and, as to all other allegations, upon information and belief, and investigation
`by counsel.
`NATURE OF ACTION AND SUMMARY OF ALLEGATIONS
`1.
`Plaintiff brings this class action on behalf of himself and a class of
`persons who purchased any of the following cooking oils sold under the Wesson
`brand name: Canola Oil, Vegetable Oil, Corn Oil, and Best Blend (collectively
`referred to herein as “Wesson Oils”). Wesson is a brand owned, developed,
`marketed, and sold by defendant ConAgra Foods, Inc. (“ConAgra” or
`“Defendant”).
` This
`its Wesson Oils as “100% Natural.”
`labels
`2.
`ConAgra
`representation is central to ConAgra’s marketing of Wesson Oils, and is displayed
`prominently on the product label itself, the Wesson website, and all Wesson Oils’
`advertisements.
`3.
`But Wesson Oils are not “100% natural.” The oils are made from
`genetically modified plants (“GM”) or genetically modified organisms (“GMO”).
`4.
`Monsanto Company, a global agricultural company that pioneered
`GM seeds, defines GMO on its website as food with “genetic makeup altered to
`exhibit traits that are not naturally theirs. In general, genes are taken (copied)
`from one organism that shows a desired trait and transferred into the genetic code
`of another organism.” Monsanto, http://www.monsanto.com/newsviews/Pages/
`glossary.aspx#g (last visited June 24, 2011) (emphasis added). As more fully
`alleged below, “unnatural” is a recognized defining characteristic of genetically
`modified foods.
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`CLASS ACTION COMPLAINT
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`Case 2:11-cv-05379-CJC-AGR Document 1 Filed 06/28/11 Page 4 of 37 Page ID #:6
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`The reasonable consumer assumes that “seeds created by swapping
`5.
`genetic material across species to exhibit traits not naturally theirs” are not “100%
`natural.” Wesson Oils’ advertising is very likely to deceive consumers.
`6.
`Plaintiff was damaged, in an amount to be determined at trial, because
`he did not get the “100% natural” oil that was advertised and that he paid for.
`7.
`Defendant’s violations of California law and wrongful conduct
`designed to mislead and deceive consumers into purchasing its product by labeling
`it as natural when it is made up of GM ingredients, violate California false
`advertising and unfair competition laws, California Business & Professions Code
`§ 17500 and § 17200, and the Consumers Legal Remedies Act (the “CLRA”),
`California Civil Code § 1750, and constitute a breach of express warranty.
`JURISDICTION AND VENUE
`The Court has jurisdiction over the state law claims pursuant to 28
`8.
`U.S.C. § 1332(d), because there are at least 100 Class Members in the proposed
`Class, the combined claims of proposed Class Members exceed $5,000,000
`exclusive of interest and costs, and at least one Class Member is a citizen of a state
`other than Defendant’s state of citizenship.
`9.
`ConAgra purposefully avails itself of the California consumer market
`and sells Wesson Oils in at least hundreds of locations within this District.
`ConAgra’s Wesson Oils are sold at thousands of retail locations throughout
`California and purchased by thousands of consumers in California every day,
`including many in this District.
`10. Venue is proper pursuant to 28 U.S.C. § 1391(a) because a substantial
`part of the events giving rise to the claims asserted occurred in this District, and
`Plaintiff dealt with Defendant, who is located in and/or does business in this
`District. Venue is proper pursuant to 28 U.S.C. § 1391(c) because Defendant
`conducts substantial business in this District, has sufficient minimum contacts with
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`Case 2:11-cv-05379-CJC-AGR Document 1 Filed 06/28/11 Page 5 of 37 Page ID #:7
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`this District, and otherwise purposely avails itself of the markets in this District,
`through the promotion, sale, and marketing of its products in this District.
`THE PARTIES
`Plaintiff Robert Briseño (“Plaintiff”), is a consumer residing in
`11.
`Vallejo, California. Briseño regularly purchased Wesson Canola Oil for his own
`and his family’s consumption, most recently in May 2011. Plaintiff believed
`Defendant’s representation that Wesson Canola Oil was 100% natural. Plaintiff
`would not have purchased Wesson Canola Oil, but for Defendant’s misleading
`statements about the product being 100% natural. Plaintiff was injured in fact and
`lost money as a result of Defendant’s conduct of improperly describing Wesson
`Oils as “natural.” Plaintiff paid for a 100% natural product, but did not receive a
`product that was 100% natural. Plaintiff received a product that was genetically
`engineered in a laboratory, and had its genetic code artificially altered to exhibit
`not “natural” qualities.
`12. Defendant ConAgra is a Delaware corporation located in Omaha,
`Nebraska. It markets and distributes Wesson Oils.
`FACTUAL ALLEGATIONS
`ConAgra Advertises Wesson Oils As “100% Natural”
`13. ConAgra sells four types of widely used cooking and food preparation
`oils under the Wesson brand. All Wesson Oils are sold with a label on the front of
`the bottle that states prominently “100% Natural.”
`14.
`In addition to appearing on the product label, “100% Natural” appears
`on Wesson Oils online and print advertisements. For example, the Wesson website
`describes the four oils as follows:
`(a)
`“Pure Wesson 100% Natural Canola Oil is the most versatile
`type of vegetable oil and it provides the best nutritional balance of all popular
`cooking oils.” See Exhibit A.
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`Case 2:11-cv-05379-CJC-AGR Document 1 Filed 06/28/11 Page 6 of 37 Page ID #:8
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`“Pure Wesson 100% Natural Oil is the perfect all-
`(b)
`purpose cooking and baking vegetable oil.” See Exhibit B.
`(c)
`“Pure Wesson 100% Natural Corn Oil is the best oil to ensure a
`cripsy [sic] coating on your fried foods while retaining moistness on the inside.”
`See Exhibit C.
`“Pure Wesson 100% Natural Best Blend Oil is highly versatile.
`(d)
`Wesson Best Blend Oil is a perfect combination of two great oils [Canola oil and
`Soybean oil] that makes it just right for everything from grilling and frying to salad
`dressings.” See Exhibit D.
`15.
`The “100% Natural” statement is, like much of the label on Wesson
`Oils, displayed in vibrant green. The “Wesson” name is haloed by the image of the
`sun, and the Canola Oil features a picture of a green heart. The Wesson Oils labels
`obviously are intended to evoke a natural, wholesome product.
`16.
`The claim that Wesson Oils are “natural” is highly material to the
`average consumer, which is why ConAgra places “100% natural” on the front
`product label and Wesson Oils product advertisements.
`Wesson Oils Are From Genetically Modified Organisms
`17. Wesson Oils are derived from plants grown from GMO seeds that are
`engineered to, among other things, allow for greater yield and to be resistant to
`pesticides.
`18. ConAgra, on the Conagra.com corporate site (but not on the Wesson
`site that consumers are more likely to visit), at the end of a pro-biotechnology
`piece, indirectly acknowledges that its Wesson Oils are genetically engineered.
`The page that displays this information requires numerous click-throughs to reach.1
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`1 To reach the page from the ConAgra.com home page, a consumer would have to
`scroll to the bottom of the page, and under the “our commitment” column select
`the “corporate responsibility” link from more than a dozen other links. After that,
`the consumer would have to select the “good for you” link, which is one of more
`than a dozen total links on that page. From there, the consumer would have to
`select the “biotechnology” link from among the more than a dozen links on that
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`Case 2:11-cv-05379-CJC-AGR Document 1 Filed 06/28/11 Page 7 of 37 Page ID #:9
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`The piece extols the benefits of biotechnology. In the last sentence of the last
`paragraph the letters “GMO” appear, without being defined, as follows:
`Biotechnology
`In the past two decades, biotechnology has been used to improve
`yield, nutrition, resistance to drought and insects, and other desirable
`qualities of several common food crops, including corn and soy. As
`consumers grow more conscious about the types of foods they put in
`their bodies, some have asked about the role of biotechnology in food
`production and health.
`As such, ConAgra Foods only purchases and uses ingredients that
`comply with the U.S. Department of Agriculture and Food and Drug
`Administration (FDA) regulations for food safety and nutrition. Both
`the U.S. Environmental Protection Agency and the FDA have
`concluded
`that biotech foods
`that are approved for human
`consumption are as safe and nutritious as other foods that are
`developed through more conventional methods.
`However, we understand the field of food biotechnology is constantly
`shifting as advancements are made in the world of science, and will
`continue to reevaluate our internal policies, relying heavily on
`evolving science, consumer and customer expectations, and regulatory
`decisions.
`Ultimately, consumers will decide what is acceptable in the
`marketplace based on the best science and public information
`available. We will continue to listen carefully to our customers and
`consumers on biotechnology and provide alternatives for those who
`
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`page. The navigation to this page is not intuitive or even logical. Plaintiff did not
`visit the ConAgra site.
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`Case 2:11-cv-05379-CJC-AGR Document 1 Filed 06/28/11 Page 8 of 37 Page ID #:10
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`demand products without biotechnology ingredients. Two choices
`are our Lightlife brand, which is manufactured using non-GMO soy
`seeds, and our organic foods, which also do not use biotech
`ingredients.
`ConAgra, http://company.conagrafoods.com/phoenix.zhtml?c=202310&p=corp
`_consumers#FoodSafetyQuality (last visited June 24, 2011) (emphasis added).
`19. Although ConAgra nobly says that “consumers will decide what is
`acceptable in the marketplace,” ConAgra’s Wesson Oils’ advertising robs
`consumers of the ability to make an informed decision because they are told that
`Wesson Oils are “100% Natural.” Further, reasonable consumers told that Wesson
`Oils are “100% Natural” have no reason to “demand products without
`biotechnology ingredients”—the “natural” designation represents to consumers
`that they are getting biotech-free food.
`Genetically Modified Organisms Are Not “100% Natural”
`20. Monsanto Company is one of the world’s biggest sellers of GMO
`seeds and an avid GMO-proponent. On its website, Monsanto defines GMO as
`follows:
`Genetically Modified Organisms (GMO) – Plants or animals that have
`had their genetic makeup altered to exhibit traits that are not
`naturally theirs. In general, genes are taken (copied) from one
`organism that shows a desired trait and transferred into the genetic
`code of another organism.
`Monsanto, http://www.monsanto.com/newsviews/Pages/glossary.aspx#g (last
`visited June 24, 2011) (emphasis added).
`21.
`The World Health Organization (“WHO”), which is the United
`Nations’ directing and coordinating authority for health, defines GMO as follows:
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`Case 2:11-cv-05379-CJC-AGR Document 1 Filed 06/28/11 Page 9 of 37 Page ID #:11
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`Genetically modified organisms (GMOs) can be defined as organisms
`in which the genetic material (DNA) has been altered in a way that
`does not occur naturally. The technology is often called “modern
`biotechnology” or “gene technology”, sometimes also “recombinant
`DNA technology” or “genetic engineering”. It allows selected
`individual genes to be transferred from one organism into another,
`also between non-related species.
`Such methods are used to create GM plants—which are then used to grow
`GM food crops.
`WHO, http://www.who.int/foodsafety/publications/biotech/20questions/en/ (last
`visited June 27, 2011) (emphasis added).
`22. Romer Labs, a company that provides diagnostic solutions to the
`agricultural industry, defines GMO as follows:
`Agriculturally important plants are often genetically modified by the
`insertion of DNA material from outside the organism into the plant's
`DNA sequence, allowing the plant to express novel traits that
`normally would not appear in nature, such as herbicide or insect
`resistance. Seed harvested from GMO plants will also contain these
`[sic] modification.
`Romer Labs, http://www.romerlabs.com/en/analytes/genetically-modified-
`organisms.html (last visited June 27, 2011) (emphasis added).
`23. As demonstrated by the above definitions, genetically modified
`organisms are “created” artificially in a laboratory through genetic engineering.
`ConAgra’s Wesson Oils are not natural, much less “100% Natural.” Advertising
`Wesson Oils as natural is deceptive and likely to mislead the public.
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`Case 2:11-cv-05379-CJC-AGR Document 1 Filed 06/28/11 Page 10 of 37 Page ID #:12
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`CLASS ALLEGATIONS
`Plaintiff brings this action on his own behalf and as a Class Action
`24.
`pursuant to Rule 23 of the Federal Rules of Civil Procedure. Plaintiff seeks
`certification of the following Class:
`All persons in the United States who have purchased Wesson Oils
`from June 27, 2007 through the final disposition of this and any and
`all related actions (the “Class Period”).
`25.
`Plaintiff and the members of the Class are so numerous that joinder of
`all members individually, in one action or otherwise, is impractical, based on
`Defendant’s national marketing and advertising campaigns that target consumers
`across the country.
`26.
`This action involves questions of law and fact common to Plaintiff
`and all members of the Class, which include the following:
`(a) Whether Defendant violated California Business & Professions
`Code Section 17500;
`(b) Whether Defendant violated California Business & Professions
`Code Section 17200;
`(c) Whether Defendant violated the CLRA, California Civil Code
`Section 1750;
`(d) Whether Defendant’s conduct constituted a breach of express
`warranty; and
`(e) Whether Plaintiff and Class Members sustained damages
`resulting from Defendant’s conduct and, if so, the proper measure of damages,
`restitution, equitable, or other relief, and the amount and nature of such relief.
`27.
`Plaintiff understands and is willing to undertake the responsibilities of
`acting in a representative capacity on behalf of the proposed Class. Plaintiff will
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`Case 2:11-cv-05379-CJC-AGR Document 1 Filed 06/28/11 Page 11 of 37 Page ID #:13
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`fairly and adequately protect the interests of the Class and has no interests adverse
`to, or which directly conflict with, the interests of the other members of the Class.
`28.
` Plaintiff has engaged the services of counsel who are experienced in
`complex class litigation, who will adequately prosecute this action, and who will
`assert and protect the rights of and otherwise represent Plaintiff and the absent
`Class Members.
`29.
`Plaintiff’s claims are typical of those of the absent Class Members
`because Plaintiff and the Class Members each sustained damages arising from
`Defendant’s wrongful conduct, as alleged more fully herein.
`30.
`This action is brought under Rule 23 because Defendant has acted on
`grounds generally applicable to all members of the Class and/or because questions
`of law or fact common to Class Members predominate over any questions affecting
`only individual members.
`31.
`Judicial determination of the common legal and factual issues
`essential to this case would be far more efficient and economical as a class action
`than piecemeal individual determinations.
`32.
`Plaintiff knows of no difficulty that will be encountered in the
`management of this litigation that would preclude maintenance as a class action.
`COUNT I
`Violation of California Business & Professions Code § 17500 et seq.
`
`Plaintiff incorporates the above allegations by reference as though
`33.
`fully set forth herein.
`
`Plaintiff brings this claim individually and on behalf of the Class.
`34.
`Throughout the Class Period, Defendant engaged in a public
`35.
`advertising and marketing campaign representing that Wesson Oils are “100%
`Natural.”
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`Case 2:11-cv-05379-CJC-AGR Document 1 Filed 06/28/11 Page 12 of 37 Page ID #:14
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`36. Wesson Oils are in fact made from genetically modified organisms
`that are not natural. Defendant’s advertisements and marketing representations
`are, therefore, misleading, untrue, and likely to deceive the public.
`37. Defendant engaged in its advertising and marketing campaign with
`intent to directly induce customers to purchase Wesson Oils based on false claims.
`38.
`In making and disseminating the statements alleged herein, Defendant
`knew or should have known that the statements were untrue or misleading.
`39.
`Plaintiff believed Defendant’s representation that Wesson Oils were
`100% natural. Plaintiff would not have purchased Wesson Oils, but for
`Defendant’s misleading statements about the product being 100% natural. Plaintiff
`was injured in fact and lost money as a result of Defendant’s conduct of
`improperly describing Wesson Oils as “natural.” Plaintiff paid for a 100% natural
`product, but did not receive a product that was 100% natural. Plaintiff received a
`product that was genetically engineered in a laboratory, and had its genetic code
`artificially altered to exhibit un-natural qualities.
`40.
`Plaintiff and Class Members seek declaratory relief, restitution for
`monies wrongfully obtained, disgorgement of ill-gotten revenues and/or profits,
`injunctive relief, enjoining Defendant from continuing to disseminate its untrue
`and misleading statements, and other relief allowable under California Business &
`Professions Code Section 17535.
`
`COUNT II
`Violation of California Business & Professions Code § 17200 et seq.
`
`Plaintiff incorporates the above allegations by reference as though
`41.
`fully set forth herein.
`
`Plaintiff brings this claim individually and on behalf of the Class.
`42.
`The circumstances giving rise to Plaintiff’s allegations include
`43.
`Defendant’s corporate policies regarding the sale and marketing of Wesson Oils.
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`44. By engaging in the acts and practices described above, Defendant
`committed one or more acts of “unfair competition” within the meaning of
`Business & Professions Code § 17200. “Unfair competition” is defined to include
`any “unlawful, unfair or fraudulent business act or practice and unfair, deceptive,
`untrue or misleading advertising and any act prohibited by [Business & Professions
`Code § 17500 et seq.].”
`45. Defendant committed “unlawful” business acts or practices by, among
`other things, violating California Business & Professions Code § 17500.
`46. Defendant committed “unfair” business acts or practices by, among
`other things:
`engaging in conduct where the utility of such conduct, if any, is
`(a)
`outweighed by the gravity of the consequences to Plaintiff and Class Members;
`(b)
`engaging in conduct that is immoral, unethical, oppressive,
`unscrupulous, or substantially injurious to Plaintiff and Class Members; and
`(c)
`engaging in conduct that undermines or violates the spirit or
`intent of the consumer protection laws alleged in this Complaint.
`47. Defendant committed “fraudulent” business acts or practices by,
`among other things, engaging in conduct Defendant knew or should have known
`was likely to and did deceive the public, including Plaintiff and other Class
`Members.
`48. As detailed above, Defendant’s unlawful, unfair, and/or fraudulent
`practices include making false and/or misleading representations that Wesson Oils
`is “100% natural.”
`49.
`Plaintiff believed Defendant’s representation that Wesson Oils were
`100% natural. Plaintiff would not have purchased Wesson Oils, but for
`Defendant’s misleading statements about the product being 100% natural. Plaintiff
`was injured in fact and lost money as a result of Defendant’s conduct of
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`Case 2:11-cv-05379-CJC-AGR Document 1 Filed 06/28/11 Page 14 of 37 Page ID #:16
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`improperly describing Wesson Oils as “natural.” Plaintiff paid for a 100% natural
`product, but did not receive a product that was 100% natural. Plaintiff received a
`product that was genetically engineered in a laboratory, and had its genetic code
`artificially altered to exhibit qualities that are not natural.
`50.
`Plaintiff and Class Members seek declaratory relief, restitution for
`monies wrongfully obtained, disgorgement of ill-gotten revenues and/or profits,
`and injunctive relief, and other relief allowable under California Business &
`Professions Code Section 17203, including, but not limited to, enjoining Defendant
`from continuing to engage in its unfair, unlawful and/or fraudulent conduct as
`alleged.
`
`COUNT III
`Violation of the California Consumers Legal Remedies Act –
`Cal. Civ. Code § 1750 et seq. (Injunctive Relief Only)
`Plaintiff hereby incorporates by reference the allegations contained in
`51.
`all of the preceding paragraphs of this complaint.
`52.
`Plaintiff brings this claim individually and on behalf of the Class.
`53.
`This cause of action is brought pursuant to the California Consumers
`Legal Remedies Act, Cal. Civ. Code § 1750 et seq. (the “CLRA”). This cause of
`action does not seek monetary damages at this point, but is limited solely to
`injunctive relief. Plaintiff will amend this Class Action Complaint to seek
`damages in accordance with the CLRA after providing Defendant with notice
`pursuant to California Civil Code § 1782. 2
`54. Defendant’s actions, representations, and conduct have violated, and
`continue to violate, the CLRA because they extend to transactions that are intended
`to result, or that have resulted, in the sale of goods to consumers.
`
`
`2 A copy of Plaintiff’s notice and demand letter sent to Defendant is attached
`hereto as Exhibit E.
`
`CLASS ACTION COMPLAINT
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`Case 2:11-cv-05379-CJC-AGR Document 1 Filed 06/28/11 Page 15 of 37 Page ID #:17
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`Plaintiff and all members of the Class are “consumers” as that term is
`55.
`defined by the CLRA in California Civil Code § 1761(d).
`56. Defendant sold to Plaintiff and other Class members its Wesson Oils,
`which are “goods” within the meaning of California Civil Code § 1761(a).
`57. By engaging in the actions, misrepresentations, and misconduct set
`forth in this Class Action Complaint, Defendant violated, and continues to violate,
`Civil Code § 1770(a)(5) by misrepresenting that Wesson Oils are natural and has
`particular qualities that it does not have, namely, that it is 100% natural when it is
`not.
`
`58. By engaging in the actions, misrepresentations, and misconduct set
`forth in this complaint, Defendant violated, and continues to violate, Civil Code
`§ 1770(a)(9), by advertising Wesson Oils with intent not to sell it as advertised.
`59. By engaging in the actions, misrepresentations, and misconduct set
`forth in this complaint, Defendant violated, and continues to violate, § 1770(a)(16)
`by misrepresenting that a subject of a transaction has been supplied in accordance
`with a previous representation when it has not.
`its
`through
`representing
`60. Defendant violated
`the CLRA by
`advertisements Wesson Oils as described above when they knew, or should have
`known, that the representations and advertisements were unsubstantiated, false,
`and misleading.
`61.
`Plaintiff believed Defendant’s representation that Wesson Oils were
`100% natural. Plaintiff would not have purchased Wesson Oils, but for
`Defendant’s misleading statements about the products being 100% natural.
`Plaintiff was injured in fact and lost money as a result of Defendant’s conduct of
`improperly describing Wesson Oils as “natural.” Plaintiff paid for a 100% natural
`product but did not receive a product that was 100% natural. Plaintiff received a
`
`CLASS ACTION COMPLAINT
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`Case 2:11-cv-05379-CJC-AGR Document 1 Filed 06/28/11 Page 16 of 37 Page ID #:18
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`product that was genetically engineered in a laboratory, and had its genetic code
`artificially altered to exhibit qualities that are not natural.
`62.
`Plaintiff requests that this Court enjoin Defendant from continuing to
`employ the unlawful methods, acts, and practices alleged herein pursuant to
`California Civil Code § 1780(a)(2). If Defendant is not restrained from engaging
`in these types of practices in the future, Plaintiff and the Class will continue to
`suffer harm.
`
`COUNT IV
`Breach of Express Warranty
`Plaintiff incorporates the above allegations by reference as though
`63.
`fully set forth herein.
`64.
`Plaintiff brings this claim individually and on behalf of the Class.
`65.
`Plaintiff, and each member of the Class, formed a contract with
`Defendant at the time Plaintiff and the other Class Members purchased Wesson
`Oils. The terms of that contract include the promises and affirmations of fact made
`by Defendant on Wesson Oils’ packaging and through marketing and advertising,
`as described above. This marketing and advertising constitute express warranties
`and became part of the basis of the bargain, and are part of the standardized
`contract between Plaintiff and the members of the Class and Defendant.
`66. Defendant purports
`through
`its advertising
`to create express
`warranties of Wesson Oils as natural by making the affirmation of fact, and
`promising, that Wesson Oils are “100% Natural.”
`67. All conditions precedent to Defendant’s liability under this contract
`have been performed by Plaintiff and the Class, when they purchased the product
`and used it as directed.
`68. Despite express warranties about the “100% natural” nature of
`Wesson Oils, Wesson Oils are composed of GMOs and are, in fact, not as they are
`found in nature.
`
`CLASS ACTION COMPLAINT
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`Case 2:11-cv-05379-CJC-AGR Document 1 Filed 06/28/11 Page 17 of 37 Page ID #:19
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`69. Defendant breached express warranties about Wesson Oils and their
`qualities, because the product does not conform to Defendant’s affirmations and
`promises to be natural and provide such benefits described above.
`70. As a result of Defendant’s breach of express warranty, Plaintiff and
`the Class were harmed in the amount of the purchase price of Wesson Oils.
`PRAYER FOR RELIEF
`WHEREFORE, Plaintiff, on behalf of himself and all others similarly
`situated, pray for judgment against Defendant as follows:
`A.
`An order certifying this case as a class action and appointing Plaintiff
`and his counsel to represent the Class Members;
`B.
`An order declaring that the acts and practices of Defendant constitute
`violations of California Business & Professions Code § 17500 and § 17200 et seq.,
`and California Civil Code § 1750 et seq., and constitute breaches of express
`warranties;
`For damages pursuant to California law in an amount to be
`C.
`determined at trial, including interest, except as to the CLRA claim, which seeks
`only injunctive relief;
`D.
`For restitution for monies wrongfully obtained and/or disgorgement of
`ill-gotten revenues and/or profits;
`E.
`A permanent injunction enjoining Defendant from continuing to harm
`Plaintiff and the members of the Class and violating California law;
`F.
`An order requiring Defendant to adopt and enforce a policy that
`requires appropriate disclosure of GM ingredients and/or removal of misleading
`natural claims, which complies with California law;
`G.
`Reasonable attorneys’ fees and the costs of the suit; and
`H.
`Such other relief as this Court may deem just and proper.
`
`CLASS ACTION COMPLAINT
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`Case 2:11-cv-05379-CJC-AGR Document 1 Filed 06/28/11 Page 1