Case 2:19-cv-10901-DMG-KS Document 1 Filed 12/27/19 Page 1 of 31 Page ID #:1
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`Juan Hong (State Bar No. 234046)
`Law Office of Juan Hong, A Law Corp.
`4199 Campus Drive, Suite 550
`Irvine, CA 92612
`Phone: (949) 509-6505
`Fax: (949) 335-6647
`Email: jhong48@gmail.com
`
`Attorney for Plaintiff
`CONNIE CHONG
`
`
`
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`United States District Court
`For the Central District of California
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`
`)
`CONNIE CHONG, Individually and On
`)
`Behalf of All Others Similarly Situated
`)
`
`)
`vs.
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`NESTLE WATERS NORTH
`)
`AMERICA INC., and DOES 1 through
`)
`)
`10.
`)
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`
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`Defendants.
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`Case No.
`
`CLASS ACTION
`COMPLAINT FOR:
`(1) VIOLATION OF CAL. BUS. &
`PROF. CODE §17200: Unlawful
`Conduct
`(2) VIOLATION OF CAL. BUS. &
`PROF. CODE §17200 Unfair Conduct
`(3) VIOLATION OF CAL. BUS. &
`PROF. CODE §17500 et seq.
`(4) VIOLATION OF CAL. CIVIL
`CODE §1750 et seq.
`(5) UNJUST ENRICHMENT/
`BREACH OF QUASI CONTRACT
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` 1 (COMPLAINT)
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`Plaintiff Connie Chong (“Plaintiff”), individually and on behalf of all others
`1.
`similarly situated, bring this Class Action Complaint against NESTLE WATERS
`NORTH AMERICA INC. (“NESTLE” or “Defendant”), and on the basis of
`personal knowledge, information and belief, and investigation of counsel, alleges
`as follows.
`
`INTRODUCTION
`
`This action deals with a water bottle product by Defendant: ARROWHEAD
`2.
`100% MOUNTAIN SPRING WATER (“the NESTLE Product”). At all relevant
`times, Plaintiff bought the NESTLE Product from convenient stores and grocery
`markets in Los Angeles, California, including Target, Costco, Hannam Chain,
`Galleria Market, and Smart & Final.
`3.
`The NESTLE Product is a bottled water line that Defendant manufactures,
`markets, and sells.
`4. When Plaintiff purchased the NESTLE Product bottles of various sizes
`including 355 mL, 500 mL, and 2.5 GAL, she did not read the backside of the
`label. In the front label of the bottles, the statement of “ARROWHEAD 100%
`MOUNTAIN SPRING WATER” was provided with the background picture of the
`Arrowhead mountain and the lake in front of the mountain. Based on the
`presentations in the front label, Plaintiff reasonably believed the NESTLE Product
`was from the springs in the Arrowhead mountain. Plaintiff would not have
`purchased the NESTLE Product bottles had she known that the spring water might
`not be from the arrowhead mountain. Plaintiff would not have purchased the
`NESTLE Product absent the misrepresentation depicted with the picture of the
`label.
`5.
` In the backside of the label of the NESTLE Product bottle, the source of
`spring water was not prominently placed thereon with such conspicuousness (as
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` 2 (COMPLAINT)
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`Case 2:19-cv-10901-DMG-KS Document 1 Filed 12/27/19 Page 3 of 31 Page ID #:3
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`compared with other words, statements, designs, or devices, in the labeling), and is
`not easily legible.
`6.
`The backside label of the NESTLE Product bottle lists the source
`information as:
`
`SOURCES: SOUTHERN PACIFIC SPRING, RIVERSIDE
`COUNTY, CA; ARROWHEAD SPRINGS, SAN BERNARDINO
`COUNTY, CA; LONG POINT RANCH, RUNNING SPRING, CA;
`PALOMAR MOUNTAIN GRANITE SPRINGS (PMGS),
`PALOMAR, CA; DEER CANYON SPRINGS, SAN BERNARDINO
`COUNTY, CA AND/OR COYOTE SPRINGS, INYO COUNTY,
`CA.
`
`
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`The sources of the spring water include six (6) locations. Arrowhead
`Springs is one of them.
`
`Plaintiff’s Reliance on Defendant’s Unlawful, False, and Misleading
`Presentations in the Label of the NESTLE Product
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`Plaintiff read and relied on the misleading statements of ARROWHEAD
`7.
`100% MOUNTAIN SPRING WATER with the picture of the Arrowhead
`mountain and the lake in the front label of the NESTLE Product bottle.
`8.
`Based on this reliance, Plaintiff believed the NESTLE Product was from the
`springs in the arrowhead mountain.
`9.
`Plaintiff would not have purchased the NESTLE Product absent the
`misrepresentation depicted in the picture of the label.
`10.
`In fact, Plaintiff bought the NESTLE Product bottles which were prohibited
`from introduction into commerce because they were misbranded. Plaintiff suffered
`damages in an amount to equal to the amounts she paid for the NESTLE Product
`bottles she purchased.
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` 3 (COMPLAINT)
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`11. By engaging in false and misleading marketing, Defendant reaped, and
`continues to reap, increased sales and profits.
`12. Defendant knows that the label of the NESTLE Product it markets is
`material to consumer’s decision to purchase the NESTLE Product.
`13. Defendant deliberately cultivated the misrepresentations through its
`marketing of the NESTLE Product bottles.
`14. Plaintiff’s claim is essentially that, because defendant’s label on the
`NESTLE Product bottles did not comply with state and/or federal requirements
`regarding the source location, she could not see or did not understand the source
`information, and therefore was misled by the unlawful packaging and purchased
`the water bottles based thereon. Defendant’s bottles are misbranded and
`unmarketable. Plaintiff was misled as a result of the misbranding and suffered
`economic injury because she purchased the products she otherwise would not have.
`15. She would purchase the products as long as Defendant repairs the label
`complying with state and/or federal requirements, or Defendant presents accurate
`source location of the Arrowhead mountain.
`
`NATURE OF THE ACTION
`
`16. Plaintiff brings this class action on behalf of herself and all other similarly
`situated consumers who purchased the NESTLE Product asserting claims under
`California’s Unfair Competition Law, Cal. Bus. & Prof. Code §17200, et seq.
`(“UCL” or “§17200”); the Consumer Legal Remedies Act, Cal. Civ. Code §1750,
`et seq. (“CLRA”); the False Advertising Law, Cal. Bus & Prof. Code §17500, et
`seq. (“FAL” or “17500”); Unjust Enrichment/Breach of Quasi Contract.
`17. Plaintiff seeks damages and equitable relief on behalf of herself and the
`Class, which relief includes, but is not limited to, the following: their monetary
`damages; restitution; refunding Plaintiff and class members the full amount paid
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` 4 (COMPLAINT)
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`for the NESTLE Product; injunctive relief for an order enjoining Defendant from
`falsely marketing and advertising the NESTLE Product; punitive damages; costs
`and expenses, including attorneys’ and expert fees; interest; and any additional
`relief that this Court determines to be necessary or appropriate to provide complete
`relief to Plaintiff and the Class.
`18. Plaintiff also seeks public injunctive relief that has the primary purpose and
`effect of prohibiting unlawful acts that threaten future injury to the general public.
`Class certification is not required for “public” injunctive relief under the UCL,
`FAL, and CLRA. (see McGill v. Citibank, N.A., 2 Cal. 5th 945 (2017).)
`
`JURISDICTION AND VENUE
`
`19. This Court also has original jurisdiction over this action under the Class
`Action Fairness Act of 2005, 28 U.S.C. § 1332(d)(2) (“CAFA”), as to the named
`Plaintiff and every Class Member, because the proposed Class contains more than
`100 members, the aggregate amount in controversy exceeds $5 million, and Class
`Members reside across the United States and are therefore diverse from Defendant.
`20. The Court has supplemental jurisdiction over Plaintiff’s state law claims
`pursuant to 28 U.S.C. §1367(a). Plaintiff has filed affidavits showing that this
`action has been commenced in a proper county pursuant to Cal. Civ. Code
`§1780(d).
`21. This Court has personal jurisdiction over Defendant because it has
`significant minimum contacts with this State, and intentionally availed itself of the
`laws of California by transacting a substantial amount of business throughout the
`State and this District, including but not limited to, the promotion, marketing,
`advertising, and sale of the NESTLE Product throughout California and Los
`Angeles County, and on the Internet to consumers located throughout California
`and Los Angeles County.
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` 5 (COMPLAINT)
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`22. Venue is proper under 18 U.S.C. § 1965(a), because Defendant is subject to
`personal jurisdiction in this District as alleged above, and Defendant has agents
`located in this District.
`
`PARTIES
`
`23. Plaintiff Connie Chong (“Plaintiff”) is a resident of the state of California.
`At all relevant times since 2015, Plaintiff learned about the NESTLE Product when
`she saw the label of the NESTLE Product displayed in grocery stores in Los
`Angeles, California, and the photos of the NESTLE Product bottle in the
`advertisements in google website, and the NESTLE website,
`https://www.arrowheadwater.com/products?_ga=2.135381490.270589502.157698
`5872-2131123486.1576985872#spring-water. Plaintiff purchased the NESTLE
`Product in reliance on the Defendant’s misleading labels and the advertisements.
`24. On information and belief, Defendant NESTLE WATERS NORTH
`AMERICA INC. (“NESTLE” or “Defendant”) is a corporation with its principal
`place of business in Connecticut, 900 LONG RIDGE ROAD, BUILDING #2,
`STAMFORD, CT 06902.
`25. The true names and capacities, whether individual, corporate, associate, or
`otherwise, of defendants sued herein as DOES 1 through 10 are unknown to
`Plaintiff, who therefore sues the DOE defendants by such fictitious names.
`Plaintiff will amend this complaint to show true names and capacities when they
`have been ascertained. Defendants will refer to NESTLE and DOES 1 through 10.
`26. Defendant deliberately cultivated the misleading statements through its
`marketing of the NESTLE Product.
`//
`//
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` 6 (COMPLAINT)
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`NESTLE’S VIOLATIONS OF FEDERAL STATUTES AND
`REGULATIONS
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`27. To prove a false advertising claim, a plaintiff must show a false or
`misleading description of fact or representation of fact by the defendant in a
`commercial advertisement about its own or another’s product. NESTLE’s
`misrepresentation of the source of ARROWHEAD 100% MOUNTAIN SPRING
`WATER in its label is sufficient to state the formal element of a false advertising
`claim.
`28.
`In the context of an unlawful-prong claim, a plaintiff must establish that a
`defendant engaged in unlawful conduct, i.e., violated a federal, state or municipal
`statute, ordinance or regulation, and that, as a result of the defendant’s unlawful
`conduct, the plaintiff suffered an injury in fact and has lost money or property.
`29. The United States Federal Food, Drug, and Cosmetic Act (“FDCA”) gives
`the U.S. Food and Drug Administration (“FDA”) authority to promulgate
`regulations to enforce the provisions of the FDCA. 21 USC § 371. The FDA has
`promulgated regulations governing misbranding of food and providing that food is
`misbranded if its label expresses or implies a geographical origin of the food or
`any ingredient of the food except when such representation is either: (1) A truthful
`representation of geographical origin.
`30. The FDA published its final rule on bottled water on November 13, 1995.
`Beverages: Bottled Water, 60 Fed.Reg. 57,076 (Nov. 13, 1995). Responding to a
`comment stating that “it would be misleading if a country setting is shown on the
`label, including lakes or ponds, and the product is drinking water processed from
`municipal supplies via reverse osmosis systems [i.e., purified water],” the FDA
`responded:
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` 7 (COMPLAINT)
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`FDA agrees that the use of certain graphics on a label of bottled water
`may be misleading to consumers if the source of the water is different
`than the source depicted or implied. For example, a country setting
`on a label may mislead consumers into believing that the product is
`spring water when it is not. Section 403(a) of the act specifically
`states that a food shall be deemed to be misbranded if its labeling is
`false or misleading in any particular. If a product is from a
`community water system, the label must clearly disclose this fact
`except as provided in § 165.110(a)(3)(ii).” Id. at 57,104 (emphasis
`added).
`
`
`21 C.F.R. §101.18 (c) provides that: “Among representations in the labeling
`31.
`of a food which render such food misbranded is any representation that expresses
`or implies a geographical origin of the food or any ingredient of the food except
`when such representation is either: (1) A truthful representation of geographical
`origin.”
`32. The FDA standard of identity imposes detailed requirements on the use of
`the “spring water” nomenclature, including “the location of the spring.” 21 C.F.R.
`§165.110(a)(2)(vi). The FDA’s spring water Identity Standard also includes two
`labeling requirements. First, “the location of the spring shall be identified” on each
`water bottle label. 21 C.F.R. § 165.110(a)(2)(vi). Use of the term “spring water”
`on bottled water is regulated by the FDA. FDA regulations at 21 C.F.R. §
`165.110(a)(2)(vi) specifically define the term:
`
`“The name of water derived from an underground formation from
`which water flows naturally to the surface of the earth may be “spring
`water.” Spring water shall be collected only at the spring or through a
`bore hole tapping the underground formation feeding the spring.
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` 8 (COMPLAINT)
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`There shall be a natural force causing the water to flow to the surface
`through a natural orifice. The location of the spring shall be
`identified. Spring water collected with the use of an external force
`shall be from the same underground stratum as the spring, as shown
`by a measurable hydraulic connection using a hydrogeologically valid
`method between the bore hole and the natural spring, and shall have
`all the physical properties, before treatment, and be of the same
`composition and quality, as the water that flows naturally to the
`surface of the earth. If spring water is collected with the use of an
`external force, water must continue to flow naturally to the surface of
`the earth through the spring’s natural orifice. Plants shall
`demonstrate, on request, to appropriate regulatory officials, using a
`hydrogeologically valid method, that an appropriate hydraulic
`connection exists between the natural orifice of the spring and the
`bore hole.” (Emphasis added.)
`
`
`21 U.S.C. § 343 provides that a “food shall be deemed misbranded” if, inter
`33.
`alia, it contains a “false or misleading label,” § 343(a); if information required on
`the label is “not prominently placed” on the label in comparison with other words,
`§ 343(f).
`34. The misbranded products are in violation of section 403 of the Federal Food,
`Drug, and Cosmetic Act (the Act) [21 U.S.C. § 343] and its implementing
`regulations found in Title 21, Code of Federal Regulations, Part 101 (21 CFR 101).
`35.
`21 U.S.C. 331(a) prohibits the introduction or delivery for introduction into
`interstate commerce of any food, drug, device, tobacco product, or cosmetic that is
`adulterated or misbranded.
`36. No state or political subdivision of a State may directly or indirectly
`establish under any authority or continue in effect as to any food in interstate
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` 9 (COMPLAINT)
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`commerce: “any requirement respecting any claim of the type described in section
`343(r)(1) of this title, made in the label or labeling of food that is not identical to
`the requirement of section 343(r) of this title . . . .” (21 U.S.C. § 343-1(a) (5))
`
`DEFENDANT NESTLE’S VIOLATIONS OF CALIFORNIA STATUTES
`AND REGULATIONS
`
`37. By manufacturing, advertising, distributing, and selling misbranded product,
`ARROWHEAD 100% MOUNTAIN SPRING WATER, Defendant NESTLE has
`violated California Health & Safety Code Sections 110660, and 110705. In
`addition, Defendant has violated the standards set by 21 U.S.C. § 343 and its
`implementing regulations found in Title 21, Code of Federal Regulations, Part 101
`(21 CFR 101), all of which have been adopted by reference into the Sherman Law,
`California Health and Safety Code.
`38. California Health and Safety Code §111185 states that:
`“Any bottler, distributor, vendor of bottled water, or owner or operator of any
`water-vending machine or retail water facility, whose corporate name or trademark
`contains the words “spring” or “springs,” or any derivative of either of these
`words, or “well,” “artesian well,” or “natural” shall label each bottle or vending
`machine with the source of the water in typeface at least equal to the size of the
`typeface of the corporate name or trademark, if the source of the bottled or
`vended water is different from the source stated in the corporate name or
`trademark. Retail water facilities that do not provide labeled containers shall post,
`in a location readily visible to consumers, a sign conveying required label
`information.” (Emphasis Added.)
`39. NESTLE violated California Health and Safety Code §111185. NESTLE’s
`source of Arrowhead 100% Mountain Spring Water was not in typeface at least
`equal to the size of the typeface of the corporate name.
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` 10 (COMPLAINT)
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`40. California’s Sherman Laws adopt the federal labeling requirements as the
`food labeling requirements of the state. Cal. Health & Safety Code § 110100 (“All
`food labeling regulations and any amendments to those regulations adopted
`pursuant to the federal act, in effect on January 1, 1993, or adopted on or after that
`date shall be the food regulations of this state.”).
`(1) Any food is misbranded if its labeling is false or misleading in any particular,
`Cal. Health & Safety Code § 110660;
`(2) Any food is misbranded if any word, statement, or other information required
`to appear on the label or labeling is not prominently placed upon the label or
`labeling with conspicuousness, as compared with other words, statements, designs,
`or devices in the labeling and in terms as to render it likely to be read and
`understood by the ordinary individual under customary conditions of purchase and
`use, id. § 110705.
`41. California Health and Safety Code § 110390 states that: “It is unlawful for
`any person to disseminate any false advertisement or any food ….. An
`advertisement is false if it is false or misleading in any particular.”
`42. California Health and Safety Code § 110395 states that: “It is unlawful for
`any person to manufacture, sell, deliver, hold, or offer for sale any food ….. that is
`falsely advertised.”
`43. California Health and Safety Code § 110398 states that: “It is unlawful for
`any person to advertise any food, drug, device, or cosmetic that is adulterated or
`misbranded.”
`44. The Sherman Food Drug Cosmetic Law, Health and Safety Code Sections
`111070 to 111198 govern the bottling and vending of water in California.
`45. California Health and Safety Code §111170 states that: “(f) Each container
`of bottled water sold at retail or wholesale in this state in a beverage container shall
`include on its label, or on an additional label affixed to the bottle, or on a package
`insert or attachment, all the following:…. …… (2) The source of the bottled
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` 11 (COMPLAINT)
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`water, in compliance with applicable state and federal regulations.” (Emphasis
`added.) Defendant NESTLE has violated California Health & Safety Code Section
`§111170.
`46. California Civil Code §1770(a): The following unfair methods of
`competition and unfair or deceptive acts or practices undertaken by any person in a
`transaction intended to result or that results in the sale or lease of goods or services
`to any consumer are unlawful: (2) Misrepresenting the source, sponsorship,
`approval, or certification of goods or services; (4) Using deceptive representations
`or designations of geographic origin in connection with goods or services.
`Defendant NESTLE has violated California Civil Code §1770(a).
`
`CLASS ACTION ALLEGATIONS
`
`47. Pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure,
`Plaintiff brings this action individually and on behalf of a proposed class defined as
`follows:
`
`The Nationwide Injunctive Relief Class. All persons residing in the United
`States and its territories who purchased one or more water bottles sold by NESTLE
`with label containing statements of “100% MOUNTAIN SPRING WATER” and
`
`“SOURCES: SOUTHERN PACIFIC SPRING, RIVERSIDE
`COUNTY, CA; ARROWHEAD SPRINGS, SAN BERNARDINO
`COUNTY, CA; LONG POINT RANCH, RUNNING SPRING, CA;
`PALOMAR MOUNTAIN GRANITE SPRINGS (PMGS),
`PALOMAR, CA; DEER CANYON SPRINGS, SAN BERNARDINO
`COUNTY, CA AND/OR COYOTE SPRINGS, INYO COUNTY,
`CA.”
`
`
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` 12 (COMPLAINT)
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`Case 2:19-cv-10901-DMG-KS Document 1 Filed 12/27/19 Page 13 of 31 Page ID #:13
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`for their own use, and not for resale, since January, 2016. Plaintiff asks the Court
`to adjudicate only liability, declaratory relief, and injunctive relief through the
`Injunctive Relief Class; the Injunctive Relief Class does not seek any form of
`monetary relief.
`
`California Subclass for The Injunctive Relief. All persons residing in the state
`of California who purchased one or more water bottles sold by NESTLE for their
`own use, and not for resale, since January, 2016, with label containing statements
`of “100% MOUNTAIN SPRING WATER” and
`
`“SOURCES: SOUTHERN PACIFIC SPRING, RIVERSIDE
`COUNTY, CA; ARROWHEAD SPRINGS, SAN BERNARDINO
`COUNTY, CA; LONG POINT RANCH, RUNNING SPRING, CA;
`PALOMAR MOUNTAIN GRANITE SPRINGS (PMGS),
`PALOMAR, CA; DEER CANYON SPRINGS, SAN BERNARDINO
`COUNTY, CA AND/OR COYOTE SPRINGS, INYO COUNTY,
`CA.”
`
`
`Plaintiff asks the Court to adjudicate only liability, declaratory relief, and
`injunctive relief through the Injunctive Relief Class; the Injunctive Relief Class
`does not seek any form of monetary relief.
`
`48. Additionally, pursuant to Rule 23(a) and (b)(3), Plaintiff brings this action
`individually and on behalf of a proposed class (the “Monetary Relief Class”)
`defined as follows:
`
`The Nationwide Monetary Relief Class. All persons residing in the United
`States and its territories who purchased one or more water bottles sold by NESTLE
`with label containing statements of “100% MOUNTAIN SPRING WATER” and
`
`
` 13 (COMPLAINT)
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`Case 2:19-cv-10901-DMG-KS Document 1 Filed 12/27/19 Page 14 of 31 Page ID #:14
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`“SOURCES: SOUTHERN PACIFIC SPRING, RIVERSIDE
`COUNTY, CA; ARROWHEAD SPRINGS, SAN BERNARDINO
`COUNTY, CA; LONG POINT RANCH, RUNNING SPRING, CA;
`PALOMAR MOUNTAIN GRANITE SPRINGS (PMGS),
`PALOMAR, CA; DEER CANYON SPRINGS, SAN BERNARDINO
`COUNTY, CA AND/OR COYOTE SPRINGS, INYO COUNTY,
`CA.”
`
`
`for their own use, and not for resale, since January, 2016. Plaintiff asks the Court
`to adjudicate all remedies through Monetary Relief Class.
`
`California Subclass for The Monetary Relief Class. All persons residing in the
`state of California who purchased one or more water bottles sold by NESTLE for
`their own use, and not for resale, since January, 2016, with label containing
`statements of “100% MOUNTAIN SPRING WATER” and
`
`“SOURCES: SOUTHERN PACIFIC SPRING, RIVERSIDE
`COUNTY, CA; ARROWHEAD SPRINGS, SAN BERNARDINO
`COUNTY, CA; LONG POINT RANCH, RUNNING SPRING, CA;
`PALOMAR MOUNTAIN GRANITE SPRINGS (PMGS),
`PALOMAR, CA; DEER CANYON SPRINGS, SAN BERNARDINO
`COUNTY, CA AND/OR COYOTE SPRINGS, INYO COUNTY,
`CA.”
`
`Plaintiff asks the Court to adjudicate all remedies through Monetary Relief Class.
`
`49. Collectively, the Injunctive Relief Class, the Monetary Relief Class, and the
`California Subclass are the “Class.”
`50. This action is properly brought as a class action for violations of California’s
`Unfair Competition Law, Cal. Bus. & Prof. Code §17200 (“UCL”), California’s
`Consumers Legal Remedies Act, Cal. Civ. Code §1750 (“CLRA”), California’s
`False Advertising Law, Cal. Civ. Code §17500 (“FAL”), and Unjust Enrichment/
`Breach of Quasi Contract, for the following reasons:
` 14 (COMPLAINT)
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`Case 2:19-cv-10901-DMG-KS Document 1 Filed 12/27/19 Page 15 of 31 Page ID #:15
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`(a) The proposed Class is so numerous and geographically dispersed throughout
`the United States that the joinder of all class members is impracticable. While
`Plaintiff does not know the exact number and identity of all Class Members,
`Plaintiff is informed and believes that there are thousands. The precise number of
`Class Members can be ascertained through discovery;
`
`(b) The disposition of Plaintiff’s and proposed Class Members’ claims in a class
`action will provide substantial benefits to both the parties and the Court;
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`(c) The proposed Class is ascertainable and there is a well-defined community of
`interest in the questions of law or fact alleged herein since the rights of each
`proposed Class member were infringed or violated in the same fashion;
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`(d) There are questions of law and fact common to the proposed class which
`predominate over any questions that may affect particular Class Members. Such
`common questions of law and fact include, but are not limited to:
`(1) Whether Defendant’s conduct was unlawful;
`(2) Whether Defendant’s conduct was unfair;
`(3) Whether Defendant’s advertising and labeling is likely to mislead the
`public;
`(4) Whether Defendant’s conduct was misleading;
`(5) Whether Defendant violated California’s Unfair Competition Law, Cal.
`Bus. & Prof. Code §17200 (“UCL”);
`(6) Whether Defendant violated California’s Consumers Legal Remedies
`Act, Cal. Civ. Code §1750 (“CLRA”);
`(7) Whether Defendant violated California’s False Advertising Law, Cal.
`Civ. Code §17500 (“FAL”);
`
` 15 (COMPLAINT)
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`Case 2:19-cv-10901-DMG-KS Document 1 Filed 12/27/19 Page 16 of 31 Page ID #:16
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`(8) Whether Defendant received purchase monies from Plaintiff and class
`members that they unjustly received;
`(9) Whether Plaintiff and Class Members have been harmed and the proper
`measure of relief;
`(10) Whether Plaintiff and Class Members are entitled to an award of
`punitive damages, attorneys’ fees and expenses against Defendants; and
`(11) Whether, as a result of Defendant’s misconduct, Plaintiff and Class
`Members are entitled to equitable relief, and if so, the nature of such relief;
`
`
`(e) Plaintiff's claims are typical of the claims of the members of the proposed
`Class. Plaintiff and Class Members have been injured by the same wrongful
`practices of Defendant. Plaintiff's claims arise from the same practices and
`conduct that give rise to the claims of all Class Members and are based on the
`same legal theories;
`
`(f) Plaintiff will fairly and adequately protect the interests of the Class in that she
`has no interests antagonistic to those of the other Class Members, and Plaintiff has
`retained attorneys experienced in consumer class actions and complex litigation as
`counsel;
`
`(g) A class action is superior to other available methods for the fair and efficient
`adjudication of this controversy for at least the following reasons: (i) Given the
`size of individual Class Member’s claims and the expense of litigating those
`claims, few, if any, Class Members could afford to or would seek legal redress
`individually for the wrongs Defendant committed against them and absent Class
`Members have no substantial interest in individually controlling the prosecution of
`individual actions; (ii) This action will promote an orderly and expeditious
`
` 16 (COMPLAINT)
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`Case 2:19-cv-10901-DMG-KS Document 1 Filed 12/27/19 Page 17 of 31 Page ID #:17
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`administration and adjudication of the proposed Class claims, economies of time,
`effort and resources will be fostered and uniformity of decisions will be insured;
`(iii) Without a class action, Class Members will continue to suffer damages, and
`Defendant’s violations of law will proceed without remedy while Defendant
`continues to reap and retain the proceeds of their wrongful conduct; and (iv)
`Plaintiff knows of no difficulty that will be encountered in the management of this
`litigation which would preclude class certification.
`
`51. Address information for the Class Members may be used for the purpose of
`providing notice of the class action.
`52. Plaintiff seeks damages and equitable relief on behalf of the Class on
`grounds generally applicable to the entire proposed Class.
`
`
`First Cause of Action
`Violation of California’s Unfair Competition Law, California Business and
`Professions Code § 17200 et seq. Unlawful Conduct Prong
`(By Plaintiff Connie Chong, on Behalf of the Class)
`
`53. Plaintiff re-alleges and incorporates by reference the above allegations
`contained in the paragraphs above as if fully set forth herein.
`54. Defendant violated Cal. Bus. & Prof. Code §17200’s prohibition against
`engaging in an “unlawful” business act or practice by selling the NESTLE Product.
`Defendant NESTLE violated 21 C.F.R. §101.18 (c); 21 C.F.R. §165.110(a)(2)(vi);
`21 U.S.C. § 343(a), 343(f); 21 U.S.C. 331(a); California Health & Safety Code
`§§110660, 110705, 111185, 110660, 110390, 110395, 110398, 111170; California
`Civil Code §1770(a)(2), (4).
`55. Defendant misleadingly advertises the NESTLE Product in its label and
`websites showing the photo of the NESTLE Product bottles. Defendant violated
`
` 17 (COMPLAINT)
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`Case 2:19-cv-10901-DMG-KS Document 1 Filed 12/27/19 Page 18 of 31 Page ID #:18
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`Cal. Bus. & Prof. Code §17200’s prohibition against engaging in an “unlawful”
`business act or practice by, inter alia, making the material misrepresentations
`regarding the NESTLE Products under 1750 et seq. (the CLRA) and Cal. Bus. &
`Prof. Code §17500 (FAL).
`56. Plaintiff seeks equitable relief on behalf of herself and the Class, which
`relief includes, but is not limited to, the following: restitution; refunding Plaintiff
`and class members the full amount paid for the NESTLE Product; injunctive relief
`for an order enjoining Defendant from falsely marketing and advertising the
`NESTLE Product; punitive damages; costs and expenses, including attorneys’ and
`expert fees; interest; and any additional relief that this Court determines to be
`necessary or appropriate to provid