Case 2:22-cv-05617 Document 1 Filed 08/09/22 Page 1 of 23 Page ID #:1
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`CUSTODIO & DUBEY, LLP
`Robert Abiri (SBN 238681)
`E-mail: abiri@cd-lawyers.com
`445 S. Figueroa Street, Suite 2520
`Los Angeles, CA 90071
`Telephone: (213) 593-9095
`Facsimile: (213) 785-2899
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`Attorney for Plaintiff and the
`Putative Classes
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`WESTERN DIVISION
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`BRENT SCRUGGS, individually, and
`on behalf of all others similarly situated,
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`Plaintiff,
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`v.
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`MARS, INCORPORATED,
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` CASE NO.: 2:22-cv-05617
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` CLASS ACTION COMPLAINT
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` DEMAND FOR JURY TRIAL
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`Defendant.
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` CLASS ACTION COMPLAINT
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`Case 2:22-cv-05617 Document 1 Filed 08/09/22 Page 2 of 23 Page ID #:2
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`Plaintiff Brent Scruggs (“Plaintiff”), on behalf of himself and all others
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`similarly situated, brings this class action against Defendant Mars, Incorporated
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`(“Defendant”) based on the false and deceptive advertising and labeling of
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`Defendant’s Cinnamon Altoids product. Plaintiff makes the following allegations
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`based on his personal knowledge, and upon the information, investigation and belief
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`of his counsel.
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` INTRODUCTION
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`This class action seeks to challenge Defendant’s false and deceptive
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`practices in the marketing and sale of its Altoids Cinnamon Mint product (the
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`“Product”).
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`2.
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`On the front and center of the Product, Defendant prominently depicts
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`an image of cinnamon sticks, and right below the cinnamon sticks, the Product
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`displays, in large bold font, the word: “CINNAMON” (together, the “Cinnamon
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`Representations”). (See ¶ 15). Together and
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`isolation,
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`the Cinnamon
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`Representations lead reasonable consumers to believe that the Product contains
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`cinnamon.
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`3.
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`However, unbeknownst to consumers, the Product does not contain
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`any cinnamon.
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`4.
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`Plaintiff and other consumers have reasonably relied on Defendant’s
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`deceptive labeling of the Product, reasonably believing that the Product contains
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`cinnamon.
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`5.
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`Had Plaintiff and Class members been aware that the Product does not
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`contain cinnamon, Plaintiff and Class members would not have purchased the
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`Product or would have paid significantly less for it. Accordingly, Plaintiff and Class
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`members have been injured by Defendant’s deceptive business practices, and paid a
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`price premium based upon their reliance on Defendant’s front label representations.
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` JURISDICTION AND VENUE
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`This Court has subject matter jurisdiction pursuant to the Class Action
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` CLASS ACTION COMPLAINT
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`Case 2:22-cv-05617 Document 1 Filed 08/09/22 Page 3 of 23 Page ID #:3
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`Fairness Act of 2005, 28 U.S.C. § 1332(d)(2), because this is a class action filed
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`under Rule 23 of the Federal Rules of Civil Procedure, there are thousands of
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`proposed Class members, the aggregate amount in controversy exceeds $5,000,000
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`exclusive of interest and costs, and Defendant is a citizen of a state different from at
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`least some members of the proposed Class, including Plaintiff.
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`7.
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`This Court has personal jurisdiction over Defendant because Defendant
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`has sufficient minimum contacts in California, or otherwise intentionally availed
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`itself of the markets within California, through its sale of the Product in California
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`and to California consumers.
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`8.
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`Venue is proper in this judicial District pursuant to 28 U.S.C.
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`§ 1391(b)(2) because a substantial part of the events or omissions giving rise to
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`Plaintiff’s claims occurred in this District. Specifically, Plaintiff purchased the
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`Product in this District.
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` THE PARTIES
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`Plaintiff is a citizen of the United States and the State of California, and
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`a resident of Los Angeles, California. In or around March 2022, Plaintiff purchased
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`the Product at a Walmart located in Torrance, California. Based on the Cinnamon
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`Representations on the front label of the Product, Plaintiff reasonably believed the
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`Product contained cinnamon. Had Plaintiff known that this is not the case, he would
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`not have purchased the Product, or would have paid significantly less for it.
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`Therefore, Plaintiff suffered injury in fact and lost money as a result of Defendant’s
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`misleading, false, unfair, and deceptive practices, as described herein.
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`10. Despite being misled by Defendant, Plaintiff regularly shops at stores
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`where the Product is sold and would purchase the Product in the future if it actually
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`contained cinnamon. Plaintiff also lacks personal knowledge as to Defendant’s
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`specific business practices relating to the Product. This uncertainty, coupled with his
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`desire to purchase the Product, is an ongoing injury that can and would be rectified
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`by an injunction enjoining Defendant from making the alleged misleading
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`Case 2:22-cv-05617 Document 1 Filed 08/09/22 Page 4 of 23 Page ID #:4
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`representations. In addition, Class members will continue to purchase the Product,
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`reasonably but incorrectly believing that the Product contains cinnamon.
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`11. Defendant is a Delaware corporation with its principal place of
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`business in McLean, Virginia. Defendant is a multinational manufacturer of
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`confectionery, pet food, and other candy products, including the Product at issue in
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`this case.
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`FACTUAL ALLEGATIONS
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`A. Defendant Misleads Consumers into Believing the Product Contains
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`Cinnamon
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`12. Defendant is responsible for the manufacturing, marketing, labeling,
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`advertising, and sale of the Product.
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`13. Unfortunately for consumers, Defendant engages
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`misleading advertising about the Product to gain a competitive edge in the market,
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`all at the expense of unsuspecting consumers.
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`14. Specifically, the principal display panel of the Product features
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`representations which lead reasonable consumers to believe that the Product
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`contains cinnamon.
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`15. As depicted below, on the front and center of the Product, Defendant
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`places an image of cinnamon sticks. Immediately below the cinnamon sticks, the
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`word “CINNAMON” appears in large, bold font (together, the “Cinnamon
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`Representations”).
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`Case 2:22-cv-05617 Document 1 Filed 08/09/22 Page 5 of 23 Page ID #:5
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`16. The Cinnamon Representations, together and in isolation, lead
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`reasonable consumers to believe the Product contains cinnamon.
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`17. However, unbeknownst to consumers, there is no cinnamon in the
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`Products.
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`18. Thus, reasonable consumers are being grossly misled by Defendant’s
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`representations, believing the Product has cinnamon, when that is simply not the case.
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`B. Defendant’s Competitors Use Cinnamon In Their Mints
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`19. Reasonable consumers not only expect cinnamon in the Product based on
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`the Cinnamon Representations, but also because similar cinnamon products with
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`similar representations actually contain cinnamon.
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`20. For example, one of Defendant’s competitors, Mentos, uses actual
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`cinnamon in their Mentos Cinnamon Chewy Mint product:1
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`1 https://www.amazon.com/Mentos-Chewy-Cinnamon-Melting-
`Pieces/dp/B004DI0LQ8/ref=sr_1_13?crid=389C202235FD5&keywords=Cinnamon+mint
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`ase 2:22-cv-05617 Document1 Filed 08/09/22 Page 6of23 Page ID #:6
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`CLASS ACTION COMPLAINT
` CLASS ACTION COMPLAINT
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`Case 2:22-cv-05617 Document 1 Filed 08/09/22 Page 7 of 23 Page ID #:7
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`21. Spry Natural Cinnamon Mints also contain cinnamon.2
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`2 https://xlear.com/product/natural-cinnamon-xylitol-mints-1200ct/ (last visited July 25,
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`Case 2:22-cv-05617 Document 1 Filed 08/09/22 Page 8 of 23 Page ID #:8
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`22. Similarly, Simply Mints Cinnamon contains cinnamon.3
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`23. For these additional reasons, it is not unreasonable for consumers to
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`expect their cinnamon products to contain actual cinnamon, and Defendant should
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`not be allowed to gain a competitive advantage over companies that are doing right
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`by consumers.
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`C.
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`Federal Regulations Further Demonstrate the Deceptive Nature of the
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`Product’s Labeling
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`24. When manufacturers represent a specific ingredient on a food item,
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`consumers expect the item to include that ingredient. While manufacturers at times
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`use artificial flavorings to mimic the taste of certain ingredients, the Federal
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`government, through the United States Food and Drug Administration, requires
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`3 https://www.simplygum.com/products/cinnamon-mints-by-simply-gum (last visited July
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`Case 2:22-cv-05617 Document 1 Filed 08/09/22 Page 9 of 23 Page ID #:9
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`manufacturers to label their products in a specific manner to avoid consumer
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`deception.
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`25. Specifically, Federal regulations are clear that if a food’s labeling
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`“makes any direct or indirect representations with respect to the primary
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`recognizable flavor(s), by word, vignette, e.g., depiction of a fruit”, and if the food
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`“contains any artificial flavor which simulates” that flavor, the flavor on the
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`product’s front label “shall be accompanied by the word(s) “artificial” or
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`“artificially flavored”. 21 C.F.R. § 101.22(i)(2). The regulations give examples of
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`acceptable representations. Id. (“e.g., “artificial vanilla”, “artificially flavored
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`strawberry”, or “grape artificially flavored”.)
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`26. As displayed above (¶ 16), the Product makes direct representations
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`with respect to the primary recognizable flavor, Cinnamon, by word and vignette
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`(i.e., depictions of cinnamon sticks). Because the Product contains artificial flavor to
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`simulate the flavor of cinnamon, the “Cinnamon” representation on the Product’s
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`label should have been accompanied by the word “artificially flavored.”
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` For example, the Product should have represented the cinnamon as
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`“artificial cinnamon,” “artificially flavored cinnamon,” or “cinnamon artificially
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`flavored.”
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`28. However, the Product’s Cinnamon representations do not have this
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`accompanying language. Thus, Defendant’s violation of FDA regulations further
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`supports Plaintiff’s allegations that reasonable consumers have been misled.
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`D. Defendant’s False and Deceptive Practices Harms Consumers
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`29. Plaintiff and other consumers purchased the Product, relying on the
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`Cinnamon Representations.
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`30. The reasonable belief held by Plaintiff and consumers that the Product
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`contains cinnamon, represented on the Product’s front label, was a significant factor
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`in each of their decisions to purchase the Product.
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`Case 2:22-cv-05617 Document 1 Filed 08/09/22 Page 10 of 23 Page ID #:10
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`31. Based on the front-label representations, Plaintiff and Class members
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`did not know, and had no reason to know, that the Product does not contain
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`cinnamon.
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`32. As
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`packaging, advertising, distribution and sale of the Product, Defendant knew or
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`should have known that the Product falsely and deceptively represents the presence
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`of cinnamon in the Product.
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`33. Defendant also knew or should have known that Plaintiff and other
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`consumers, in purchasing the Product, would rely on the Product’s representations.
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`Nonetheless, Defendant deceptively advertises the Product in order to deceive
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`consumers into believing that they are getting cinnamon.
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`34. Consumers are willing to pay more for the Product based on the belief
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`that it has cinnamon. In other words, through the use of misleading representations,
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`Defendant commands a price that Plaintiff and the Class would not have paid had
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`they been fully informed. Had Plaintiff and the Class been aware that the Product
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`does not contain cinnamon, they would have purchased a different product or paid
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`significantly less for the Product. Alternatively, had Plaintiff and the Class been
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`aware about the truth of the Product, they would not have purchased the Product at
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`all.
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`35. By the use of misleading representations, Defendant also created
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`increased market demand for the Product and increased its market share relative to
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`what its demand and share would have been had it marketed the Product truthfully.
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`Indeed, cinnamon is highly valued by consumers, and consumers are
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`increasingly interested in purchasing cinnamon and cinnamon-based products,
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`evident from the growth of the cinnamon market in recent years, and its projected
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`Case 2:22-cv-05617 Document 1 Filed 08/09/22 Page 11 of 23 Page ID #:11
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`growth in the near future.4
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`37. Therefore, Plaintiff and other consumers purchasing the Product have
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`suffered injury in fact and lost money as a result of Defendant’s false and deceptive
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`practices, as described herein.
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`CLASS ACTION ALLEGATIONS
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`38. Plaintiff brings this class action pursuant to Fed. R. Civ. P 23 and all
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`other applicable laws and rules, individually, and on behalf of all members of the
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`following Classes:
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`California Class
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`All persons who purchased the Product in the state of California within the
`applicable statute of limitations period.
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`California Consumer Subclass
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`All persons who purchased Product in the state of California, for personal,
`family, or household purposes, within the applicable statute of limitations
`period.
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`39. Excluded from the Classes are the following individuals and/or entities:
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`Defendant and its parents, subsidiaries, affiliates, officers and directors, current or
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`former employees, and any entity in which Defendant has a controlling interest; all
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`individuals who make a timely election to be excluded from this proceeding using
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`the correct protocol for opting out; and all judges assigned to hear any aspect of this
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`litigation, as well as their immediate family members.
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`40. Plaintiff reserves the right to modify or amend the definition of the
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`proposed Classes and/or add subclasses before the Court determines whether
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`certification is appropriate.
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`4 https://www.marketdataforecast.com/market-reports/cinnamon-market (last visited July
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`Case 2:22-cv-05617 Document 1 Filed 08/09/22 Page 12 of 23 Page ID #:12
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`41. Numerosity: The proposed Classes are so numerous that joinder of all
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`members would be impractical. The Product is sold throughout California at
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`numerous retailers. The number of individuals who purchased the Product during
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`the relevant time period is at least in the hundreds of thousands. Accordingly, Class
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`members are so numerous that their individual joinder herein is impractical. While
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`the precise number of Class members and their identities are unknown to Plaintiff at
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`this time, these Class members are identifiable and ascertainable.
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`42. Common Questions Predominate: There are questions of law and fact
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`common to the proposed Classes that will drive the resolution of this action and will
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`predominate over questions affecting only individual Class members. These
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`questions include, but are not limited to, the following:
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`a. Whether Defendant misrepresented material facts and/or failed to
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`disclose material facts in connection with the labeling, marketing,
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`distribution, and sale of the Product;
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`b. Whether Defendant’s use of false or deceptive labeling and
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`advertising constituted false or deceptive advertising;
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`c. Whether Defendant engaged in unfair, unlawful and/or fraudulent
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`business practices;
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`d. Whether Defendant’s unlawful conduct, as alleged herein, was
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`intentional and knowing;
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`e. Whether Plaintiff and the Classes are entitled to damages and/or
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`restitution, and in what amount;
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`f. Whether Defendant is likely to continue using false, misleading or
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`unlawful conduct such that an injunction is necessary; and
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`g. Whether Plaintiff and the Classes are entitled to an award of
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`reasonable attorneys’ fees, interest, and costs of suit.
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`43. Defendant has engaged in a common course of conduct giving rise to
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`violations of the legal rights sought to be enforced uniformly by Plaintiff and Class
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`-11-
` CLASS ACTION COMPLAINT
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`Case 2:22-cv-05617 Document 1 Filed 08/09/22 Page 13 of 23 Page ID #:13
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`members. Similar or identical statutory and common law violations, business
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`practices, and injuries are involved. The injuries sustained by members of the
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`proposed Classes flow, in each instance, from a common nucleus of operative fact,
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`namely, Defendant’s deceptive labeling and advertising of the Product. Each
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`instance of harm suffered by Plaintiff and Class members has directly resulted from
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`a single course of illegal conduct. Each Class member has been exposed to the same
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`deceptive practice, as each Product: (a) bears the Cinnamon Representations on the
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`front label of the Product, and (b) does not contain cinnamon. Therefore, individual
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`questions, if any, pale in comparison to the numerous common questions presented
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`in this action.
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`44. Superiority: Because of the relatively small amount of damages at issue
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`for each individual Class member, no Class member could afford to seek legal
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`redress on an individual basis. Furthermore, individualized litigation increases the
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`delay and expense to all parties and multiplies the burden on the judicial system
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`presented by the complex legal and factual issues of this case. Individualized
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`litigation also presents a potential for inconsistent or contradictory judgments. A
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`class action is superior to any alternative means of prosecution.
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`45. Typicality: The representative Plaintiff’s claims are typical of those of
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`the proposed Classes, as all members of the proposed Classes are similarly affected
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`by Defendant’s uniform unlawful conduct as alleged herein.
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`46. Adequacy: Plaintiff will fairly and adequately protect the interests of
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`the proposed Classes as his interests do not conflict with the interests of the
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`members of the proposed Classes he seeks to represent, and he has retained counsel
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`competent and experienced in class action litigation. Thus, the interests of the
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`members of the Classes will be fairly and adequately protected by Plaintiff and his
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`counsel.
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`47. Defendant has also acted, or failed to act, on grounds generally
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`applicable to Plaintiff and the proposed Classes, supporting the imposition of
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` CLASS ACTION COMPLAINT
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`Case 2:22-cv-05617 Document 1 Filed 08/09/22 Page 14 of 23 Page ID #:14
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`uniform relief to ensure compatible standards of conduct toward the members of the
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`Classes.
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`FIRST CLAIM FOR RELIEF
`Violation of California’s Consumers Legal Remedies Act
`California Civil Code § 1750, et seq.
`(for the California Consumer Subclass)
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`48. Plaintiff repeats the allegations contained in paragraphs 1-47 above as
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`if fully set forth herein.
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`49. Plaintiff brings this claim individually and on behalf of the members of
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`the proposed California Consumer Subclass, against Defendant pursuant to
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`California’s Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1750, et
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`seq.
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`50. The Product is a “good” within the meaning of Cal. Civ. Code
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`§ 1761(a), and the purchases of the Product by Plaintiff and members of the
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`California Consumer Subclass constitute “transactions” within the meaning of Cal.
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`Civ. Code § 1761(e).
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`51. Cal. Civ. Code § 1770(a)(5) prohibits “[r]epresenting that goods or
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`services have sponsorship, approval, characteristics, ingredients, uses, benefits, or
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`quantities which they do not have . . . .” By marketing the Product with the Cinnamon
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`Representations, Defendant has represented and continues to represent that the Product
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`has characteristics (i.e., contains cinnamon) that it does not have. Therefore, Defendant
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`has violated section 1770(a)(5) of the CLRA.
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`52. Cal. Civ. Code § 1770(a)(7) prohibits “[r]espresenting that goods or
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`services are of a particular standard, quality, or grade, or that goods are of a
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`particular style or model, if they are of another.” By marketing the Product with the
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`Cinnamon Representations, Defendant has represented and continues to represent that
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`the Product is of a particular standard (i.e., contains cinnamon), which it does not
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`possess. Therefore, Defendant has violated section 1770(a)(7) of the CLRA.
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`-13-
` CLASS ACTION COMPLAINT
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`Case 2:22-cv-05617 Document 1 Filed 08/09/22 Page 15 of 23 Page ID #:15
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`53. Cal. Civ. Code § 1770(a)(9) prohibits “[a]dvertising goods or services
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`with intent not to sell them as advertised.” By marketing the Product as containing
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`cinnamon, but not intending to sell the Product as such, Defendant has violated section
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`1770(a)(9) of the CLRA.
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`54. At all relevant times, Defendant has known or reasonably should have
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`known that the Product did not contain cinnamon, and that Plaintiff and other
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`members of the California Consumer Subclass would reasonably and justifiably rely
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`on the front label in purchasing the Product.
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`55. Plaintiff and members of the California Consumer Subclass have
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`justifiably relied on Defendant’s misleading representations when purchasing the
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`Product. Moreover, based on the materiality of Defendant’s misleading and
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`deceptive conduct, reliance may be presumed or inferred for Plaintiff and members
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`of the California Consumer Subclass.
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`56. Plaintiff and members of the California Consumer Subclass have
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`suffered and continue to suffer injuries caused by Defendant because they would
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`have paid significantly less for the Product, or would not have purchased them at all,
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`had they known that the Product is not as represented.
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`57.
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`In accordance with Cal. Civ. Code § 1780(d), Plaintiff is filing a
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`declaration of venue, attached hereto as Exhibit A to this Complaint.
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`58. Under Cal. Civ. Code § 1780(a), Plaintiff and Class members currently
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`seek injunctive relief for Defendant’s violations of the CLRA.
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`59. Further, on April 19, 2022, Plaintiff, through his counsel, sent a notice
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`letter by certified mail to Defendant, put Defendant on notice of Plaintiff’s intent to
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`pursue claims under the CLRA, and provided Defendant an opportunity to cure,
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`consistent with Cal. Civ. Code § 1782.
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`60. Defendant received the letter on or before May 13, 2022. Because
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`Defendant failed to take corrective action within 30 days of receipt of the notice
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`-14-
` CLASS ACTION COMPLAINT
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`Case 2:22-cv-05617 Document 1 Filed 08/09/22 Page 16 of 23 Page ID #:16
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`letter, Plaintiff is filing this complaint with a request for damages as permitted under
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`Cal. Civ. Code § 1782(d).
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`SECOND CLAIM FOR RELIEF
`Violation of California’s False Advertising Law
`California Business & Professions Code § 17500, et seq
`(for the California Class)
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`61. Plaintiff repeats the allegations contained in paragraphs 1-47 above as
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`if fully set forth herein.
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`62. Plaintiff brings this claim individually and on behalf of the members of
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`the proposed California Class against Defendant pursuant to California’s False
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`Adverting Law (“FAL”), Cal. Bus. & Prof. Code § 17500, et seq.
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`63. The FAL makes it “unlawful for any person to make or disseminate or
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`cause to be made or disseminated before the public . . . in any advertising device . . .
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`or in any other manner or means whatever, including over the Internet, any
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`statement, concerning . . . personal property or services professional or otherwise, or
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`performance or disposition thereof, which is untrue or misleading and which is
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`known, or which by the exercise of reasonable care should be known, to be untrue
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`or misleading.” Cal. Bus. & Prof. Code § 17500.
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`64. Defendant has represented and continues to represent to the public,
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`including Plaintiff and members of the California Class, through its deceptive
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`labeling, that the Product contains cinnamon. Because Defendant has disseminated
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`misleading information regarding the Product, and Defendant knows, knew, or
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`should have known through the exercise of reasonable care that the representations
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`were and continue to be misleading, Defendant has violated the FAL.
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`65. As a result of Defendant’s false advertising, Defendant has and
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`continues to unlawfully obtain money from Plaintiff and members of the California
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`Class.
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`66.
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` Plaintiff requests that this Court cause Defendant to restore this
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`fraudulently obtained money to him and members of the California Class, to
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`-15-
` CLASS ACTION COMPLAINT
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`Case 2:22-cv-05617 Document 1 Filed 08/09/22 Page 17 of 23 Page ID #:17
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`disgorge the profits Defendant made on these transactions, and to enjoin Defendant
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`from violating the FAL or violating it in the same fashion in the future as discussed
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`herein. Otherwise, Plaintiff and members of the California Class may be irreparably
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`4
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`harmed and/or denied an effective and complete remedy if such an order is not
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`granted.
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`THIRD CLAIM FOR RELIEF
`Violation of California’s Unfair Competition Law (“UCL”),
`California Business & Professions Code § 17200, et seq.
`(for the California Class)
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`67. Plaintiff repeats the allegations contained in paragraphs 1-47 above as
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`if fully set forth herein.
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`68. Plaintiff brings this claim individually and on behalf of the members of
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`the proposed California Class against Defendant.
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`69. The UCL, Cal. Bus. & Prof Code § 17200, provides, in pertinent part,
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`that “unfair competition shall mean and include unlawful, unfair or fraudulent
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`business practices and unfair, deceptive, untrue or misleading advertising . . . .”
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`70. Under the UCL, a business act or practice is “unlawful” if it violates
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`any established state or federal law. Defendant’s false and misleading advertising of
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`the Product was and continues to be “unlawful” because it violates the CLRA, the
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`FAL, 21 C.F.R. § 101.22(i)(2), and other applicable laws as described herein. As a
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`result of Defendant’s unlawful business acts and practices, Defendant has
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`unlawfully obtained money from Plaintiff and members of the California Class.
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`71. Under the UCL, a business act or practice is “unfair” if the defendant’s
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`conduct is substantially injurious to consumers, offends public policy, and is
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`immoral, unethical, oppressive, and unscrupulous, as the benefits for committing
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`such acts or practices are outweighed by the gravity of the harm to the alleged
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`victims. Defendant’s conduct was and continues to be of no benefit to purchasers of
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`the Product, as it is misleading, unfair, unlawful, and is injurious to consumers who
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`rely on the Product’s labeling. Deceiving consumers as to the contents of the
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`-16-
` CLASS ACTION COMPLAINT
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`Case 2:22-cv-05617 Document 1 Filed 08/09/22 Page 18 of 23 Page ID #:18
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`Product is of no benefit to consumers. Therefore, Defendant’s conduct was and
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`continues to be “unfair.” As a result of Defendant’s unfair business acts and
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`3
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`practices, Defendant has and continues to unfairly obtain money from Plaintiff, and
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`4
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`members of the California Class.
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`72. Under the UCL, a business act or practice is “fraudulent” if it actually
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`deceives or is likely to deceive members of the consuming public. Defendant’s
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`conduct here was and continues to be fraudulent because it has the effect of
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`8
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`deceiving consumers into believing that the Product contains cinnamon. Because
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`Defendant misled Plaintiff and members of the California Class, Defendant’s
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`conduct was “fraudulent.” As a result of Defendant’s fraudulent business acts and
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`practices, Defendant has and continues to fraudulently obtain money from Plaintiff
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`and members of the California Class.
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`73. Plaintiff requests that this Court cause Defendant to restore this
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`14
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`unlawfully, unfairly, and fraudulently obtained money to him, and members of the
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`15
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`California Class, to disgorge the profits Defendant made on these transactions, and
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`to enjoin Defendant from violating the UCL or violating it in the same fashion in the
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`future as discussed herein. Otherwise, Plaintiff and members of the California Class
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`may be irreparably harmed and/or denied an effective and complete remedy if such
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`an order is not granted.
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`FOURTH CLAIM FOR RELIEF
`Breach of Express Warranty
`(for the California Class)
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`74. Plaintiff repeats the allegations contained in paragraphs 1-47 above as
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`if fully set forth herein.
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`75. Plaintiff brings this claim individually and on behalf of the members of
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`the proposed California Class against Defendant.
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`76. California’s express warranty statute provides that: (a) Any affirmation
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`of fact or promise made by the seller to the buyer which relates to the goods and
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`-17-
` CLASS ACTION COMPLAINT
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`Case 2:22-cv-05617 Document 1 Filed 08/09/22 Page 19 of 23 Page ID #:19
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`becomes part of the basis of the bargain creates an express warranty that the goods
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`2
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`shall conform to the affirmation or promise, and (b) Any description of the goods
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`3
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`which is made part of the basis of the bargain creates an express warranty that the
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`4
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`goods shall conform to the description. See Cal. Com. Code § 2313.
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`77. Defendant has expressly warranted on th