Case 3:22-cv-04721-TSH Document 1 Filed 08/17/22 Page 1 of 19
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`CUSTODIO & DUBEY, LLP
`Robert Abiri (SBN 238681)
`445 S. Figueroa Street, Suite 2520
`Los Angeles, CA 90071
`Telephone: (213) 593-9095
`Facsimile: (213) 785-2899
`E-mail: abiri@cd-lawyers.com
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`Attorneys for Plaintiff and the Putative Classes
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`Elena Nacarino, on behalf of herself and all
`others similarly situated,
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`Plaintiff,
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`v.
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`RB Health (US) LLC,
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`Defendant.
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` CASE NO.: 3:22-cv-04721
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`CLASS ACTION COMPLAINT
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`DEMAND FOR JURY TRIAL
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` CLASS ACTION COMPLAINT
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`Case 3:22-cv-04721-TSH Document 1 Filed 08/17/22 Page 2 of 19
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`Plaintiff Elena Nacarino (“Plaintiff”), on behalf of herself and all others similarly situated,
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`by and through her attorneys, brings this Class Action Complaint against RB Health (US) LLC
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`(“Defendant”), based upon personal knowledge as to herself, and upon information, investigation
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`and belief of her counsel.
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`1.
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`This case action seeks to challenge Defendant’s false and deceptive practices in the
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`INTRODUCTION
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`marketing and sale of its Cepacol Extra Strength Sore Throat Honey Lemon Lozenges (the
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`“Product”).
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`2.
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`The front label of the Product – which is a cough drop meant to soothe the throat –
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`leads reasonable consumers to believe the Product contains honey and lemon. Specifically, the
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`words “Honey Lemon” appear on the Product’s front label without any qualification, as well as an
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`image of a honey dipper with honey oozing down from the dipper, alongside a cut lemon wedge.
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`3.
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`Unbeknownst to consumers however, the Product does not contain honey or lemon.
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`Plaintiff and other consumers purchased the Product and paid a premium price
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`based upon their reliance on Defendant’s front label representations about honey and lemon. Had
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`Plaintiff and other consumers been aware that the Product does not contain honey or lemon, they
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`would not have purchased the Product or would have paid significantly less for it. Accordingly,
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`Plaintiff and Class members have been injured by Defendant’s deceptive business practices.
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` JURISDICTION AND VENUE
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`5.
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`This Court has subject matter jurisdiction pursuant to the Class Action Fairness Act
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`of 2005, 28 U.S.C. § 1332(d)(2), because this is a class action filed under Rule 23 of the Federal
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`Rules of Civil Procedure, there are thousands of proposed Class members, the aggregate amount
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`in controversy exceeds $5,000,000 exclusive of interest and costs, and Defendant is a citizen of a
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`state different from at least some members of the proposed Classes, including Plaintiff.
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`6.
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`This Court has personal jurisdiction over Defendant because Defendant has
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`sufficient minimum contacts in California, or otherwise intentionally avails itself of the markets
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`within California, through its sale of the goods and products in California and to California
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`consumers.
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` CLASS ACTION COMPLAINT
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`Case 3:22-cv-04721-TSH Document 1 Filed 08/17/22 Page 3 of 19
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`7.
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`Venue is proper in this judicial District pursuant to 28 U.S.C. § 1391(b)(2) because
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`a substantial part of the events or omissions giving rise to Plaintiff’s claims occurred in this
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`District. Plaintiff resides in this District and she purchased the Product in this District during the
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`statute of limitations period.
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` PLAINTIFF
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`Plaintiff is a citizen of California and currently resides in San Francisco, California.
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`Between December 2021 and January 2022, Plaintiff purchased the Product from a Target in Daly
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`City, California. Based on the below depicted representations about honey and lemon on the front
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`label of the Product (see paragraph 15), Plaintiff reasonably believed that the Product contained
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`honey and lemon. Moreover, she did not see any statement or other information on the label
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`indicating that the Product did not contain honey and lemon. Had she known that the Product did
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`not contain honey and lemon, she would not have purchased it, or would have paid significantly
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`less for it.
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`9.
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`Despite Defendant’s misrepresentations, Plaintiff would purchase the Product, as
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`advertised, if it actually contained honey and lemon. Although Plaintiff regularly shops at stores
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`that carry the Product, absent an injunction of Defendant’s deceptive advertising, she will be
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`unable to rely with confidence on Defendant’s advertising of the Product in the future.
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`Furthermore, while Plaintiff currently believes the Product’s labeling is inaccurate, she lacks
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`personal knowledge as to Defendant’s specific business practices, and thus, she will not be able
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`determine whether the Product truly contains lemon and honey. This leaves doubt in her mind as
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`to the possibility that at some point in the future the Product could be made in accordance with the
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`representations on the Product’s front label. This uncertainty, coupled with her desire to purchase
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`the Product, is an ongoing injury that can and would be rectified by an injunction enjoining
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`Defendant from making the alleged misleading representations. In addition, other Class members
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`will continue to purchase the Product, reasonably but incorrectly, believing that it contains lemon
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`and honey.
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`Case 3:22-cv-04721-TSH Document 1 Filed 08/17/22 Page 4 of 19
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`Defendant is a New Jersey corporation with its principal place of business in
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`DEFENDANT
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`Parsippany, New Jersey. Defendant is a multinational corporation, and one of the largest producers
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`of nutritional and medicinal products, like the Product challenged in this Complaint.
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`FACTUAL ALLEGATIONS
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`Defendant is responsible for the manufacturing, marketing, labeling, advertising,
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`and sale of personal care, nutritional, and medicinal products, including the Product at issue here.
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`12.
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`The Product is part of Defendant’s Cepacol line of lozenges, marketed as a remedy
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`for sore throats and as the #1 Doctor Recommended brand of lozenges.
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`13.
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`Unfortunately for consumers, Defendant engages false and misleading advertising
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`about the Product to gain a competitive edge in the market, all at the expense of unsuspecting
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`consumers.
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`14.
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`Specifically, the principal display panel of the Product features representations that
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`lead reasonable consumers to believe that the Product contains honey and lemon, when in fact, it
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`contains neither.
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`15.
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`First, the words “Honey Lemon” appear in large, bold font on the front label of the
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`Product. Immediately above that phrase, Defendant has placed an image of a honey dipper with honey
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`oozing down from the dipper, alongside a cut lemon wedge. Lastly, the lozenges are intentionally
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`colored a golden honey brown color to make them appear as if they contain honey. See below.
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`Case 3:22-cv-04721-TSH Document 1 Filed 08/17/22 Page 5 of 19
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`16.
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`Based on the foregoing representations, reasonable consumers purchase the Product
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`with the expectation that the Product contains both honey and lemon.
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`17.
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`However, unbeknownst to consumers, the Product does not contain any honey or
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`lemon.
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`18.
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`Instead, the Product appears to be, at most, honey and lemon flavored. However,
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`unlike competitor products, nowhere on the front of the label does Defendant inform consumers
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`that the Product is only flavored to taste like honey and lemon. As such, consumers cannot
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`reasonably know or expect that the Product does not contain honey or lemon.
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`19. Moreover, consumers reasonably expect honey and lemon in the lozenges in part
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`because other lemon/honey lozenges actually contain both ingredients. For example, Zand
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` CLASS ACTION COMPLAINT
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`Case 3:22-cv-04721-TSH Document 1 Filed 08/17/22 Page 6 of 19
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`Immunity’s Lemon Honey lozenges contain both honey and lemon.1 Another example is Luden’s
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`Honey Lemon throat drops, which contain both honey and lemon.2 Ricola Honey Lemon
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`Echinacea lozenges contain both honey and lemon.3 Lastly, Trader Joe’s Honey Lemon cough
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`drops also contain both honey and lemon.4
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`20.
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`The reasonable belief that the Product contains honey and lemon was a significant
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`factor in Plaintiff and other class members’ decisions to purchase the Product. It is well known
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`that consumers value honey as a natural therapeutic ingredient, especially for its ability to help
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`soothe and coat a sore throat.5 This is because honey has significant amounts of nutrients such as
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`vitamins, minerals, enzymes, and antioxidants. Lemon is also a natural ingredient helpful for sore
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`throats. As the University of Pennsylvania’s medical school explains, “[s]imilar to [] honey,
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`lemons are great for sore throats because they can help break mucus and provide pain relief.”6
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`Lemons also contain a significant amount of Vitamin C, which can help boost immunity and fight
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`infection.7 For these reasons, consumers would rightfully expect the Product to contain both
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`ingredients, not highly processed flavors.
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`21.
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`Because the Product does not contain honey and lemon, it is falsely and deceptively
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`advertised, in violation of the laws set forth below.
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`1 https://www.zandimmunity.com/products/herbalozenge-lemon-
`honey?variant=34074485424266&currency=USD&utm_medium=product_sync&utm_source=go
`ogle&utm_content=sag_organic&utm_campaign=sag_organic&gclid=Cj0KCQjwuO6WBhDLAR
`IsAIdeyDIG1EZayKEChVR9MtLftciJaopQ1q71B_DqUCd6D38-
`cxZVmVGXTo4aAnB2EALw wcB
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`2 https://www.ludens.com/sore-throat-remedies/honey-lemon#ingredients
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`3 https://www.ricola.com/en-us/products/assortment/all-products/honey-lemon-with-echinacea
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`4 https://dailymed.nlm.nih.gov/dailymed/fda/fdaDrugXsl.cfm?setid=647dadae-f37a-8399-e053-
`2991aa0aedb3
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`5 https://health.clevelandclinic.org/sore-throat-remedies-that-actually-work/ (“Honey coats your
`throat and soothes it by reducing irritation.”); https://www.health.harvard.edu/staying-healthy/got-
`a-cold-try-some-honey
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`6 https://www.pennmedicine.org/updates/blogs/health-and-wellness/2018/february/sore-
`throat#:~:text=Similar%20to%20salt%20water%20and,to%20fight%20off%20your%20infection
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`7 https://www.medicinenet.com/home remedies for sore throat/article.htm
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`Case 3:22-cv-04721-TSH Document 1 Filed 08/17/22 Page 7 of 19
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`22. Moreover, although Plaintiff does not assert a cause of action under federal
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`regulations promulgated by the FDA, Defendant’s conduct is in direct violation of federal
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`regulations, which in turn serves as a predicate violation of California’s Unfair Competition Law
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`(see Paragraph 56). Specifically, 21 C.F.R. § 201.10(c)(4), which governs the labeling of
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`ingredients here, states that “the labeling of a drug may be misleading by reason (among other
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`reasons) of: . . . [t]he featuring in the labeling of inert or inactive ingredients in a manner that
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`creates an impression of value greater than their true functional role in the formulation.” Here, the
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`labeling of the Product features numerous references to honey and lemon in a manner which
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`makes consumers believe the two ingredients are present in the Product and have a therapeutic and
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`functional role in the throat soothing lozenges. In reality, the Product does not contain honey or
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`lemon, let alone an amount which would aid in the therapeutic nature of the Product. As such, the
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`Product is mislabeled under the federal regulation.
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`23.
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`As the entity responsible for the development, manufacturing, packaging,
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`advertising, distribution and sale of the Product, Defendant knew or should have known that the
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`Product falsely and deceptively represents that it contains lemon and honey.
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`24.
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`Defendant also knew or should have known that Plaintiff and other consumers, in
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`purchasing the Product, would rely on Defendant’s front label representations about honey and
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`lemon. Nonetheless, Defendant deceptively advertises the Product in order to deceive consumers
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`and gain an unfair advantage in the market.
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`Consumers are willing to pay more for the Product based on the belief that the
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`Product contains honey and lemon, as promised on the front label. Plaintiff and other consumers
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`would have paid significantly less for the Product, or would not have purchased it at all, had they
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`known that the truth about it. Thus, through the use of misleading representations, Defendant
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`commands a price that Plaintiff and the Class would not have paid had they been fully informed.
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`Therefore, Plaintiff and other consumers purchasing the Product have suffered
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`injury in fact and lost money as a result of Defendant’s false and deceptive practices, as described
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`herein.
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`Case 3:22-cv-04721-TSH Document 1 Filed 08/17/22 Page 8 of 19
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`CLASS ACTION ALLEGATIONS
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`27.
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`Plaintiff brings this class action pursuant to Fed. R. Civ. P 23 and all other
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`applicable laws and rules, individually, and on behalf of all members of the following Classes:
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`California Class
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`All residents of California who purchased the Product within the applicable statute of
`limitation (“California Class”).
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`California Consumer Subclass
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`All residents of California who purchased the Product for personal, family, or household
`purposes, within the applicable statute of limitations period (“California Consumer
`Subclass”) (together with the California Class, the “Classes”).
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`28.
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`Excluded from the Classes are the following individuals and/or entities: Defendant
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`and its parents, subsidiaries, affiliates, officers and directors, current or former employees, and any
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`entity in which Defendant has a controlling interest; all individuals who make a timely election to
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`be excluded from this proceeding using the correct protocol for opting out; and all judges assigned
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`to hear any aspect of this litigation, as well as their immediate family members.
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`29.
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`Plaintiff reserves the right to modify or amend the definition of the proposed
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`Classes and/or add subclasses before the Court determines whether class certification is
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`appropriate.
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`Plaintiff is a member of all the Classes.
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`Numerosity: Members of each Class are so numerous and geographically
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`dispersed that individual joinder of all Class members is impracticable. The precise number of
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`Class members is unknown to Plaintiff but is likely to be ascertained by the Defendant’s records.
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`At a minimum, there likely are at least thousands of Class members.
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`32.
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`Commonality: There are questions of law and fact common to the proposed
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`class(es). Common questions of law and fact include, without limitations:
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`a. whether Defendant’s course of conduct alleged herein violates the statutes and
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`other laws that are pled in this Complaint;
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`Case 3:22-cv-04721-TSH Document 1 Filed 08/17/22 Page 9 of 19
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`b. whether reasonable consumers would rely upon Defendant’s representations
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`about the Product and reasonably believe the Product contains honey and
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`lemon;
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`c. whether Defendant knew or should have known its representations were false or
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`misleading;
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`d. whether Defendant was unjustly enriched by retaining monies from the sale of
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`the Product;
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`e. whether certification of each Class is appropriate under Rule 23;
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`f. whether Plaintiff and the members of each Class are entitled to declaratory,
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`equitable, or injunctive relief, and/or other relief, and the scope of such relief;
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`and
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`g. the amount and nature of the relief to be awarded to the Plaintiff and the Class,
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`including whether Plaintiff and the Class are entitled to punitive damages.
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`33.
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`Typicality: Plaintiff’s claims are typical of the other Class members because
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`Plaintiff, as well as Class members, purchased the Product. Plaintiff and members of the Classes
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`relied on the representations made by the Defendant about the Product prior to purchasing the
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`Product. Plaintiff and the members of each Class paid for Defendant’s Product and would not have
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`purchased them (or would have paid substantially less for them) had they known that the
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`Defendant’s representations were untrue.
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`34.
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`Adequacy: Plaintiff will fairly and adequately protect the interests of the proposed
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`Classes as her interests do not conflict with the interests of the members of the proposed Classes
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`she seeks to represent, and she has retained counsel competent and experienced in class action
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`litigation. Thus, the interests of the members of the Classes will be fairly and adequately protected
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`by Plaintiff and her counsel.
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`35.
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`Predominance: Pursuant to Rule 23(b)(3), the common issues of law and fact
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`identified in this Complaint predominate over any other questions affecting only individual
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`members of the Classes. Class issues fully predominate over any individual issue because no
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`Case 3:22-cv-04721-TSH Document 1 Filed 08/17/22 Page 10 of 19
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`inquiry into individual conduct is necessary; all that is required is a narrow focus on Defendant’s
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`misconduct detailed at length in this Complaint.
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`36.
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`Superiority: A class action is superior to all other available methods for the fair
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`and efficient adjudication of this litigation because individual litigation of each claim is
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`impractical. It would be unduly burdensome to have individual litigation of hundreds of thousands
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`of individual claims in separate lawsuits, every one of which would present the issues presented in
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`the Complaint/lawsuit. Further, because of the damages suffered by any individual Class member
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`may be relatively modest in relation to the cost of litigation, the expense and burden of individual
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`litigation make it difficult, if not impossible. Furthermore, many of the Class members may be
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`unaware that claims exist against the Defendant.
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`37.
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`Declaratory and Injunctive Relief: Pursuant to Rule 23(b)(2), declaratory and
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`injunctive relief is appropriate in this matter. Defendant has acted or refused to act on grounds
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`generally applicable to Plaintiff and the other Class members, thereby making appropriate final
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`injunctive relief and declaratory relief, as described below, with respect to the Class members as a
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`whole. Unless a class-wide injunction is issued, Defendant will continue to advertise, market,
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`promote, and sell the Product in an unlawful and misleading manner, as described throughout this
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`Complaint, and members of the Classes will continue to be misled, harmed, and denied their rights
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`under the law.
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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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`38.
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`Plaintiff repeats the allegations contained in paragraphs 1-37 above as if fully set
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`forth herein.
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`39.
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`Plaintiff brings this claim individually and on behalf of the members of the
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`proposed California Consumer Subclass against Defendant pursuant to California’s Consumers
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`Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1750, et seq.
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` CLASS ACTION COMPLAINT
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`Case 3:22-cv-04721-TSH Document 1 Filed 08/17/22 Page 11 of 19
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`40.
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`The Product is a “good” within the meaning of Cal. Civ. Code § 1761(a), and the
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`purchases of the Product by Plaintiff and members of the California Consumer Subclass constitute
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`“transactions” within the meaning of Cal. Civ. Code § 1761(e).
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`41.
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`Cal. Civ. Code § 1770(a)(5) prohibits “[r]epresenting that goods or services have
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`sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not
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`have…” By using representations about honey and lemon on the front label of the Product,
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`Defendant has represented and continues to represent that the Product has characteristics and
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`ingredients (i.e., contains lemon and honey) that it does not have. Therefore, Defendant has
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`violated section 1770(a)(5) of the CLRA.
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`42.
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`Cal. Civ. Code § 1770(a)(7) prohibits “[r]espresenting that goods or services are of
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`a particular standard, quality, or grade, or that goods are of a particular style or model, if they are
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`of another.” By using representations about honey and lemon on the front label of the Product,
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`Defendant has represented and continues to represent that the Product is of a particular standard
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`(i.e., contains lemon and honey) that it does not meet. Therefore, Defendant has violated section
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`1770(a)(7) of the CLRA.
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`43.
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`Cal. Civ. Code § 1770(a)(9) prohibits “[a]dvertising goods or services with intent
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`not to sell them as advertised.” By using representations about honey and lemon on the front label
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`of the Product and not delivering a Product with honey and lemon, Defendant has advertised the
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`Product with characteristics it intended not to provide to consumers. As such, Defendant has
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`violated section 1770(a)(9) of the CLRA.
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`44.
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`At all relevant times, Defendant has known or reasonably should have known that
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`the representations about honey and lemon on the front label of the Product are false and
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`deceptive, and that Plaintiff and other members of the California Consumer Subclass would
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`reasonably and justifiably rely on the Product’s representations about honey and lemon when
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`purchasing the Product. Nonetheless, Defendant deceptively advertises the Product as such in
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`order to deceive consumers into believing they are receiving honey and lemon.
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`45.
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`Plaintiff and members of the California Consumer Subclass have justifiably relied
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`on Defendant’s misleading representations when purchasing the Product. Moreover, based on the
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`Case 3:22-cv-04721-TSH Document 1 Filed 08/17/22 Page 12 of 19
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`materiality of Defendant’s misleading and deceptive conduct, reliance may be presumed or
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`inferred for Plaintiff and members of California Consumer Subclass.
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`46.
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`Plaintiff and members of the California Consumer Subclass have suffered and
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`continue to suffer injuries caused by Defendant because they would have paid significantly less for
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`the Product, or would not have purchased it at all, had they known that the Product does not
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`contain honey and lemon.
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`47.
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`Under Cal. Civ. Code § 1780(a), Plaintiff and Class members currently seek
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`injunctive relief only for Defendant’s violations of the CLRA. On August 15, 2022, Plaintiff sent a
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`notice letter by certified mail to Defendant, notifying Defendant of her intent to pursue a claim for
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`damages under the CLRA on behalf of all others similarly situated, and gave Defendant an
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`opportunity to cure, consistent with Cal. Civ. Code § 1782. If Defendant does not cure the
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`violations within 30 days of receipt, Plaintiff will amend the Complaint to seek damages under the
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`CLRA as well.
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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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`48.
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`Plaintiff repeats the allegations contained in paragraphs 1-37 above as if fully set
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`forth herein.
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`49.
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`Plaintiff brings this claim individually and on behalf of the members of the
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`proposed California Class against Defendant pursuant to California’s False Adverting Law
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`(“FAL”), Cal. Bus. & Prof. Code § 17500, et seq.
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`50.
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`The FAL makes it “unlawful for any person to make or disseminate or cause to be
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`made or disseminated before the public . . . in any advertising device . . . or in any other manner or
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`means whatever, including over the Internet, any statement, concerning . . . personal property or
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`services professional or otherwise, or performance or disposition thereof, which is untrue or
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`misleading and which is known, or which by the exercise of reasonable care should be known, to
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`be untrue or misleading.” Cal. Bus. & Prof. Code § 17500.
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`51.
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`Defendant has represented and continues to represent to the public, including
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`Case 3:22-cv-04721-TSH Document 1 Filed 08/17/22 Page 13 of 19
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`Plaintiff and members of the proposed California Class, through its deceptive labeling, that the
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`Product contains honey and lemon. Because Defendant has disseminated misleading information
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`regarding the Product, and Defendant knows, knew, or should have known through the exercise of
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`reasonable care that the representations were and continue to be misleading, Defendant has
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`violated the FAL.
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`52.
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`As a result of Defendant’s false advertising, Defendant has and continues to
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`unlawfully obtain money from Plaintiff and members of the California Class. Plaintiff therefore
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`requests that the Court cause Defendant to restore this fraudulently obtained money to her and
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`members of the proposed California Class, to disgorge the profits Defendant made on these
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`transactions, and to enjoin Defendant from violating the FAL or violating it in the same fashion in
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`the future as discussed herein. Otherwise, Plaintiff and members of the proposed California Class
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`may be irreparably harmed and/or denied an effective and complete remedy.
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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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`53.
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`Plaintiff repeats the allegations contained in paragraphs 1-37 above as if fully set
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`forth herein.
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`54.
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`Plaintiff brings this claim individually and on behalf of the members of the
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`proposed California Class against Defendant.
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`55.
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`The UCL, Cal. Bus. & Prof Code § 17200, provides, in pertinent part, that “unfair
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`competition shall mean and include unlawful, unfair or fraudulent business practices and unfair,
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`deceptive, untrue or misleading advertising . . . .”
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`56.
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`Under the UCL, a business act or practice is “unlawful” if it violates any
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`established state or federal law. Defendant’s false and misleading advertising of the Product was
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`and continues to be “unlawful” because it violates the CLRA, the FAL, 21 C.F.R. § 201.10(c)(4),
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`and other applicable laws as described herein. As a result of Defendant’s unlawful business acts
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`and practices, Defendant has unlawfully obtained money from Plaintiff and members of the
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`proposed California Class.
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`Case 3:22-cv-04721-TSH Document 1 Filed 08/17/22 Page 14 of 19
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`57.
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`Under the UCL, a business act or practice is “unfair” if its conduct is substantially
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`injurious to consumers, offends public policy, and is immoral, unethical, oppressive, and
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`unscrupulous, as the benefits for committing such acts or practices are outweighed by the gravity
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`of the harm to the alleged victims. Defendant’s conduct was and continues to be of no benefit to
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`purchasers of the Product, as it is misleading, unfair, unlawful, and is injurious to consumers who
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`rely on the labeling. Deceiving consumers into believing they will receive a cough drop containing
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`honey and lemon, particularly when those are ingredients known to be therapeutic for a sore
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`throat, is of no benefit to consumers. Therefore, Defendant’s conduct was and continues to be
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`“unfair.” As a result of Defendant’s unfair business acts and practices, Defendant has and
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`continues to unfairly obtain money from Plaintiff and members of the proposed California Class.
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`58.
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`Under the UCL, a business act or practice is “fraudulent” if it actually deceives or
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`is likely to deceive members of the consuming public. Defendant’s conduct here was and
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`continues to be fraudulent because it has the effect of deceiving consumers into believing the
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`Product contains honey and lemon when it does not. Because Defendant misled Plaintiff and
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`members of the California Class, Defendant’s conduct was “fraudulent.” As a result of
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`Defendant’s fraudulent business acts and practices, Defendant has and continues to fraudulently
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`obtain money from Plaintiff and members of the California Class.
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`59.
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`Plaintiff requests that the Court cause Defendant to restore this unlawfully,
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`unfairly, and fraudulently obtained money to her, and members of the proposed California Class,
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`to disgorge the profits Defendant made on these transactions, and to enjoin Defendant from
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`violating the UCL or violating it in the same fashion in the future as discussed herein. Otherwise,
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`Plaintiff and members of the proposed California Class may be irreparably harmed and/or denied
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`an effective and complete remedy.
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`60.
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`forth herein.
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`FOURTH CLAIM FOR RELIEF
`Breach of Express Warranty
`Cal. Com. Code § 2313
`(For the California Class)
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`Plaintiff repeats the allegations contained in paragraphs 1-37 above as if fully set
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` CLASS ACTION COMPLAINT
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`Case 3:22-cv-04721-TSH Document 1 Filed 08/17/22 Page 15 of 19
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`61.
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`Plaintiff brings this claim individually and on behalf of the members of the
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`California Class against Defendant.
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`3
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`62.
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`California’s express warranty statutes provide that “(a) Any affirmation of fact or
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`promise made by the seller to the buyer which relates to the goods and becomes part of the basis
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`of the bargain creates an express warranty that the goods shall conform to the affirmation or
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`promise,” and “(b) Any description of the goods which is made part of the basis of the bargain
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`creates an express warranty t