Case 3:20-cv-00894-DMS-JLB Document 1 Filed 05/13/20 PageID.1 Page 1 of 26
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`LAW OFFICES OF RONALD A. MARRON
`RONALD A. MARRON (SBN 175650)
`ron@consumersadvocates.com
`MICHAEL T. HOUCHIN (SBN 305541)
`mike@consumersadvocates.com
`651 Arroyo Drive
`San Diego, CA 92103
`Tel: (619) 696-9006
`Fax: (619) 564-6665
`
`THE ELLIOT LAW FIRM
`DAVID ELLIOT (270381)
`8033 Linda Vista Road, Ste. 200
`San Diego, CA 92111
`Telephone: (619) 468-4865
`Attorneys for Plaintiffs and the Proposed Class
`
`
`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
`
`WARREN GROSS and DEBORAH
`LEVIN, on behalf of themselves and
`all others similarly situated,
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`Plaintiffs,
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`Defendants.
`
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`
` v.
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`VILORE FOODS COMPANY, INC.,
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`
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`Case No:
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`CLASS ACTION COMPLAINT
`FOR VIOLATIONS OF:
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`1. CONSUMERS LEGAL REMEDIES ACT,
` CAL. CAL. CIV. CODE §§1750 et seq.
`2. UNFAIR COMPETITION LAW,
` CAL. BUS. & PROF. CODE §§17200 et seq.
`3. FALSE ADVERTISING LAW,
` CAL. BUS. & PROF. CODE §§17500 et seq.
`4. BREACH OF EXPRESS WARRANTY
`5. BREACH OF IMPLIED WARRANTY
`6. NEGLIGENT MISREPRESENTATION
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`DEMAND FOR JURY TRIAL
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`CLASS ACTION COMPLAINT
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`'20
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`CV0894
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`JLB
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`DMS
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`Case 3:20-cv-00894-DMS-JLB Document 1 Filed 05/13/20 PageID.2 Page 2 of 26
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`TABLE OF CONTENTS
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`JURISDICTION AND VENUE ................................................................................ 1
`I.
`NATURE OF THE ACTION .................................................................................... 2
`II.
`PARTIES ................................................................................................................... 3
`III.
`IV. FACTUAL ALLEGATIONS .................................................................................... 3
`Defendant Does Not Disclose That the Products are Artificially Flavored. ........................ 3
`Defendant’s Competitors Label Their Products Lawfully. .................................................. 8
`Plaintiff’s Purchases of the Product ..................................................................................... 9
`V. DELAYED DISCOVERY ....................................................................................... 11
`VI. CLASS ACTION ALLEGATIONS ........................................................................ 12
`VII. CAUSES OF ACTION ............................................................................................ 14
`First Cause of Action: Violation of the CLRA ........................................................ 14
`Second Cause of Action: Violation of the UCL, Unlawful Prong .......................... 15
`Third Cause of Action: Violation of the UCL, Unfair Prong .................................. 16
`Fourth Cause of Action: Violation of False Advertising Law ................................ 19
`Fifth Cause of Action: Breach of Express Warranty ............................................... 20
`Sixth Cause of Action: Breach of Implied Warranty ............................................. 20
`Seventh Cause of Action: Negligent Misrepresentation......................................... 22
`VIII. PRAYER FOR RELIEF .......................................................................................... 23
`IX.
`JURY DEMAND ..................................................................................................... 24
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`Warren Gross and Deborah Levin, (“Plaintiffs”), on behalf of themselves and all
`others similarly situated, by and through their undersigned counsel, hereby bring this
`action against Vilore Foods Company, Inc., (“Vilore” or Defendant), and upon
`information and belief and investigation of counsel, allege as follows:
`I.
`JURISDICTION AND VENUE
`
`1.
`Plaintiffs bring this action pursuant to the Class Action Fairness Act of 2005
`(“CAFA”), 28 U.S.C. § 1332(d). Defendant is a citizen of a state different from that of a
`plaintiff, the putative class size is greater than 100 persons, and the amount in controversy
`in the aggregate for the putative Class exceeds the sum or value of $5 million exclusive of
`interest and costs. The amount in controversy, exclusive of interest, costs, and attorneys'
`fees, exceeds the minimum jurisdictional amount for this Court and minimal diversity
`exists. The Court has jurisdiction over this action pursuant to 28 U.S. Code § 1332(d).
`
`This Court has both general and specific personal jurisdiction over
`
`2.
`Defendant.
`3.
`The Court has personal jurisdiction over Defendant because the company has
`affirmatively established and maintained contacts with the State of California and is
`registered to do business in California.
`4.
`This Court further has specific personal jurisdiction arising from Defendant’s
`decision to distribute and sell the Product in California.
`5.
`Defendant has sufficient minimum contacts with this State and sufficiently
`avail themselves of the markets of this State through the promotion, sales, and marketing
`of the Product within the State to render the exercise of jurisdiction by this Court
`reasonable.
`6.
`Venue is proper in this County because Defendant conducts business here,
`engages in substantial transactions in this County, and many of the transactions
`complained of herein occurred in this County including specifically the transactions
`between Plaintiff Gross and Defendant and many of the transactions between Defendant
`and the Class.
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`II. NATURE OF THE ACTION
`7.
`This is a nationwide consumer class action for violation of state consumer
`protection laws with a California sub-class for violation of California law.
`8.
`Defendant distributes, advertises, markets, and sells a variety of juices and
`juice-based beverage products, including juice-based beverage products labeled “Guava
`Nectar”, “Apricot Nectar”, and “Peach Nectar” (the “Products”).
`9.
`These Products, which are labeled and marketed under the brand name
`“Kern’s,” are all misbranded and falsely advertised.
`10. The Kern’s brand is owned in the United States by Grupo Jumex, S.A. de
`C.V. (“Jumex”), a Mexico corporate entity.
`11. The Products are packaged in Mexico and imported to the United States.
`12. Under U.S. law, every food product imported into the U.S. must identify on
`the product’s package the full legal name and address of either the product manufacturer
`or the U.S. distributor for consumer contact and liability purposes.
`13. Vilore, a Texas corporation, is identified on the Product labels as the U.S.
`distributor.
`14. The Products’ labeling is false and misleading and violated FDA regulations.
`15. The Products are labeled as if they are flavored only with natural ingredients
`when the Products in fact contain undisclosed artificial flavors in violation of state and
`federal law.
`16. The Products are misbranded under federal law as well as California and
`other states’ laws.
`17. The distribution of misbranded products in interstate commerce violates
`federal law, 21 U.S.C. § 331, and corresponding state consumer protection laws.
`18. Vilore is liable under U.S. law for distributing the misbranded Products.
`19. Plaintiffs, who were deceived by Defendant’s unlawful conduct, purchased
`the Products in California, and were damaged thereby, bring this action on their own
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`behalf and on behalf of California and other states’ consumers to remedy Defendant’s
`unlawful acts.
`20. On behalf of the Class and sub-class as defined herein, Plaintiffs seek an
`order compelling Defendant to, inter alia: (1) cease distributing, advertising and selling
`the Products in violation of U.S. and California and other states’ consumer protection law;
`(2) re-label or recall all existing deceptively packaged Products; (3) conduct a corrective
`advertising campaign to fully inform California and other states’ consumers; (4) award
`Plaintiffs and other Class-members restitution, actual damages, and punitive damages; and
`(5) pay all costs of suit, expenses, and attorney fees.
`III. PARTIES
`21. Defendant Vilore Foods Company (“Vilore”) is a Texas Corporation with its
`principal place of business at 3838 Medical Drive, San Antonio, Texas.
`22. Vilore is registered with the California Secretary of State to do business in
`California under entity number C1944592.
`23. Vilore is the designated U.S. distributor and liable entity for the Products.
`24. Defendant advertises, markets, distributes, and sells the Products in
`California and throughout the United States.
`25. Plaintiff Warren Gross (“Gross”) is a resident and citizen of Pima County,
`Arizona. Gross purchased one or more of the Products multiple times in San Diego
`County, California for personal and household consumption.
`26. Plaintiff Deborah Levin (“Levin”; collectively with Gross, “Plaintiffs”) is a
`resident and citizen of Santa Monica, California. Levin purchased the Products multiple
`times since 2014 in California for personal and household consumption.
`IV. FACTUAL ALLEGATIONS
`Defendant Does Not Disclose That the Products are Artificially Flavored.
`
`27. The image below [overleaf] is a true and accurate reproduction of the front
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`labels of two of the Products during the proposed class period.1
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`28.
` The Mango Nectar product label, for example, shows a pictorial
`representation of ripe fresh mangos. The Apricot Nectar product label shows a pictorial
`representation of ripe fresh apricots.
`29. The labeled names, “Mango” and “Apricot” along with these pictorial
`representations, under U.S. and California law inform the consumer that the Products
`consist exclusively of and are flavored only with natural juices.
`30. Both labels further advertise that the Product is “100% Natural.”
`31. Both Products, however, contain a chemical identified as “malic acid.”
`32. The “malic acid” that is added to the Products is a synthetic chemical that is
`used to make manufactured food products taste like real fruit.
`33. The Product labels violate California and other state law in multiple regards.
`34. California’s Sherman Food, Drug, and Cosmetic Act, Cal. Health & Saf.
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`1 http://kerns.com, as of 2017. The manufacturer apparently has since deleted “100%
`Natural” on the retail can labels.
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`Code §109875 et seq, for example, incorporates into California law all regulations enacted
`pursuant to the U.S. Food Drug and Cosmetic Act. Any act or omission that would violate
`an FDCA regulation necessarily therefore violates California’s Sherman Law.
`35. Numerous other states have similar consumer protection laws.
`36. The Products violate the federal FDCA, and therefore violate these state laws,
`in multiple ways.
`37. First, because each Product contains additional flavoring ingredients that
`simulate and reinforce the characterizing flavor, the front label is required by law to
`disclose those additional flavors rather than misleadingly suggest that the Product is
`flavored only by the labeled natural juices. Cal. Health & Saf. Code §109875 et seq.
`38. Second, the Product ingredient list violates Federal and state law because it
`misleadingly identifies the malic acid ingredient only as generic “malic acid” instead of
`using the specific, non-generic name of the ingredient. See 21 CFR 101.4(a)(1).
`39. Even more deceptive, however, is the fact that the Products contain
`undisclosed artificial flavoring made from petrochemicals. Defendant conceals this fact
`from consumers.
`40. The manufacturer adds an industrial chemical called d-l malic acid,2 in the
`form of a racemic mixture of d- and l- isomers, to flavor the Products and make them taste
`like fresh fruit.
`41. This ‘malic acid’ is not naturally-occurring but is in fact manufactured in
`petrochemical plants from benzene or butane—components of gasoline and lighter fluid,
`respectively—through a series of chemical reactions, some of which involve highly toxic
`chemical precursors and byproducts.
`42. Both the natural and unnatural forms of malic acid are considered GRAS
`(generally recognized as safe) for use as flavorings; the d-malic acid form, however, has
`not been extensively studied for its health effects in human beings.
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`2 D-malic acid is also called d-hydroxybutanedioic acid or (R)-(+)-2-Hydroxysuccinic acid.
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`43. Both forms of malic acid confer a “tart, fruity” flavor to food products.3
`44. The manufacturer uses this artificial petrochemical, d-l malic acid, in its
`Products but Defendant pretends otherwise, conflating the natural and the artificial
`flavorings and deceiving consumers.
`45. Because it contains artificial flavor, both federal and state law require the
`Products to display both front- and back-label disclosures to inform consumers that they
`are artificially flavored. 21 CFR 101.22.
`46. They have neither.
`47. The labels of some of the Products during the proposed class period, in fact,
`claimed the Products are “100% Natural”.
`48. California law, incorporating and identically mirroring U.S. Food, Drug, and
`Cosmetic Act regulations by reference, requires that a food’s label accurately describe the
`nature of the food product and its characterizing flavors. 21 C.F.R. 102.5(a).
`49. Under FDA regulations, a recognizable primary flavor identified on the front
`label of a food Products are referred to as a “characterizing flavor”. 21 CFR 101.22.
`50. FDA regulations and California law establish that if “the label, labeling, or
`advertising of a food makes any direct or indirect representations with respect to the
`primary recognizable flavor(s), by word, vignette, e.g., depiction of a fruit, or other
`means” then “such flavor shall be considered the characterizing flavor”. 21 C.F.R.
`101.22(i).
`51.
`“Mango,” “Apricot,” and “Guava” are primary recognizable flavors
`identified on Product front labels. These are all therefore characterizing flavors.
`52.
`If a product’s characterizing flavor is not created exclusively by the
`characterizing flavor ingredient, the product’s front label must state that the product’s
`flavor was simulated or reinforced with either or both of natural or artificial flavorings. If
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`3 https://thechemco.com/chemical/malic-acid/; visited 04/12/17.
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`any artificial flavor is present which “simulates, resembles or reinforces” the
`characterizing flavor, the food must be prominently labeled as “Artificially Flavored.” 21
`C.F.R. 101.22(i) (3), (4).
`53. A food product’s label also must include a statement of the “presence or
`absence of any characterizing ingredient(s) or component(s) . . . when the presence or
`absence of such ingredient(s) or component(s) in the food has a material bearing on price
`or consumer acceptance . . . and consumers may otherwise be misled about the presence
`or absence of the ingredient(s) or component(s) in the food.” 21 C.F.R. 102.5(c).
`54. Such statements must be in boldface print on the front display panel and of
`sufficient size for an average consumer to notice. Id.
`55. Under these regulations, Defendant, before distributing the Products in U.S.
`commerce, was required to place prominently on the Products’ front labels a notice
`sufficient to allow consumers to understand that the Products contained additional
`flavoring ingredients and artificial flavorings.
`56. Defendant failed to do so, deceiving consumers and violating federal and
`state law.
`57. Accordingly, Plaintiffs were unaware that the Products contained artificial
`flavoring when they purchased them.
`58. When purchasing the Products, Plaintiffs were seeking a product of particular
`qualities that were flavored only with the natural ingredients claimed on the label and
`which did not contain artificial flavoring.
`59. Plaintiffs are not alone in these purchasing preferences. As reported in Forbes
`Magazine, 88% of consumers polled recently indicated they would pay more for foods
`perceived as natural or healthy. “All demographics [of consumers]—from Generation Z to
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`Baby Boomers—say they would pay more” for such products, specifically including foods
`with no artificial flavors.4
`60. California’s Health & Safety Code specifically states that “Any food is
`misbranded if it bears or contains any artificial flavoring, artificial coloring, or chemical
`preservative, unless its labeling states that fact.” Cal. Health & Saf. Code §110740.
`61.
` California law required Defendant to include sufficient notice on the
`Products’ labels to alert California consumers that the Products are artificially flavored.
`62. Defendant failed to do so.
`63. Accordingly, the Products were misbranded and illegal to distribute or sell in
`California. Cal. Health & Saf. Code §110740; §110760; §110765.
`64. Because the Products violated California law, they were misbranded when
`offered for sale.
`65. Plaintiffs lost money as a result of Defendant’s conduct because they
`purchased Products that contained undisclosed artificial flavors and were illegal to sell.
`66.
`John Compton, the CEO of a competing beverage manufacturer, announced
`to investors that, “We have talked extensively to consumers . . . and they come back and
`tell us the number one motivation for purchase is products that claim to be all natural.”
`67. Defendant’s labeling and advertising reflects consumers’ preferences -- not
`by making the Product solely with natural ingredients, but instead by concealing the fact
`that the Products are artificially flavored.
`Defendant’s Competitors Label Their Products Lawfully.
`68. Defendant not only deceives consumers but also gains an unfair commercial
`advantage in the marketplace by marketing and distributing misbranded Products.
`69. Manufacturers and distributor of competing beverage products label their
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`
`4 “Consumers Want Healthy Foods--And Will Pay More For Them”; Forbes Magazine,
`February 15, 2015. https://www.forbes.com/sites/nancygagliardi/2015/02/18/consumers-
`want-healthy-foods-and-will-pay-more-for-them/#4b8a6b4b75c5; visited April 7, 2017.
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`products lawfully.
`70. Meadow Gold, Value Time, and Tang, for example, accurately label their
`artificially flavored fruit juice beverages as “Artificially Flavored.”
`71. Other competing major manufacturers, offering products whose labels
`suggest just as Defendant’s do that their products are naturally flavored, truly are flavored
`only with natural ingredients.
`72. Defendant, however, conceals the use of artificial flavoring, deceiving
`consumers, illegally cutting costs and increasing profits, and competing unfairly and
`unlawfully in the marketplace, hurting their competitors as well as consumers.
`73. Defendant’s conduct injures competing manufacturers and distributors that
`do not engage in the same illegal behavior. These manufacturers and distributors compete
`for market share and limited shelf space, as well as for consumers’ buying preferences and
`dollars.
`74. Defendant’s competitors do so lawfully. Defendant does not.
`Plaintiffs’ Purchases of the Product
`75. Plaintiff Gross purchased one or more of the Products in California during
`the Class Period defined herein.
`76. Plaintiff Levin purchased one or more of the Products in California during
`the Class Period as defined herein.
`77. Plaintiff Gross purchased the Products in 2018 and 2019, most recently in
`August 2019 at the Costco store at Gateway Center Drive in San Diego, California.
`78. Plaintiff Levin purchased the Products multiple times since 2014, including,
`but not limited to, from a Gelson’s Market store located at 2627 Lincoln Boulevard, Santa
`Monica, CA 90405 and a 99 Cents Only store located at 201 Lincoln Boulevard, Venice,
`California 90291
`79. The Products were purchased at the marked retail prices, recently $0.79 per
`11.5 ounce single-serving can, or from time to time at higher or lower promotional prices.
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`80.
` Plaintiff Levin first discovered Defendant’s unlawful acts described herein
`in September of 2018, when she learned the Product’s characterizing flavors were
`deceptively created or reinforced using artificial flavoring.
`81. Plaintiff Gross first discovered Defendant’s unlawful acts described herein
`in March of 2020, when he learned the Product’s characterizing flavors were deceptively
`created or reinforced using artificial flavoring.
`82. Plaintiffs were deceived by and relied upon the Product’s deceptive labeling,
`and specifically the omission of the legally required notice that it contained artificial
`flavorings. Plaintiffs purchased the Product believing it was naturally flavored, based on
`the Product’s deceptive labeling and failure to disclose that it was artificially flavored.
`83. Plaintiffs, as reasonable consumers, are not required to subject consumer
`food products to laboratory analysis, to scrutinize the back of the label to discover that the
`product’s front label is false and misleading, or to search the label for information that
`federal regulations require be displayed prominently on the front – and, in fact, under state
`law are entitled to rely on statements that Defendant places on or omits from the Product’s
`labeling. Defendant, but not Plaintiffs, knew or should have known that this labeling was
`in violation of federal regulations and state law.
`84. Because Plaintiffs reasonably assumed the Products to be free of artificial
`flavoring, based on the Product labels, when they were not, they did not receive the benefit
`of their purchases. Instead of receiving the benefit of products free of artificial flavoring,
`they received a Product that was unlawfully labeled so as to deceive the consumer into
`believing that it is exclusively naturally flavored and contains no artificial flavoring, in
`violation of federal and state labeling regulations.
`85. Plaintiffs would not have purchased the Products absent Defendant’s
`misrepresentations and omissions. Had Defendant not violated California law, Plaintiffs
`would not have been injured.
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`86. The Products were worth less than what Plaintiffs paid for them and class
`members would not have paid as much as they have for the Products absent Defendant’s
`false and misleading statements and omissions.
`87. Plaintiffs lost money as a result of Defendant’s unlawful behavior. Plaintiffs
`altered their position to their detriment and suffered loss in an amount equal to the amount
`they paid for the Product.
`88. Plaintiffs intend to, seek to, and will purchase the Products again when they
`can do so with the assurance that Product labels, which indicate that the Products are
`naturally flavored, are lawful and consistent with the Products’ ingredients.
`V. DELAYED DISCOVERY
`89. Plaintiffs did not discover that the labeling of the Products was false and
`misleading until 2018 and 2020, respectively, when they learned the Products contained
`undisclosed artificial flavoring.
`90. Plaintiffs and the Class members are reasonably diligent consumers who
`exercised reasonable diligence in their purchase and consumption of the Products.
`Nevertheless, they would not have been able to discover Defendant’s deceptive practices
`and lacked the means to discover them given that, like nearly all consumers, they rely on
`and are entitled to rely on the manufacturer’s obligation to label its products in compliance
`with federal regulations and state law. Furthermore, Defendant’s labeling practices and
`non-disclosures—in particular, failing to identify the artificial flavor in the ingredient list,
`or to disclose that the Products contained artificial flavoring, or to accurately identify the
`kind of malic acid that Defendant put in the Products—impeded Plaintiffs’ and Class
`members’ abilities to discover the deceptive and unlawful labeling of the Products
`throughout the Class Period.
`91. Because Defendant actively concealed their illegal conduct, preventing
`Plaintiffs and the Class from discovering their violations of state law, Plaintiffs and the
`Class are entitled to delayed discovery and an extended Class Period tolling the applicable
`statute of limitations.
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`VI. CLASS ACTION ALLEGATIONS
`93. Plaintiffs bring this action on behalf of themselves and all others similarly situated (the
`“Class” and “sub-class”) as a proposed class action pursuant to the Class Action Fairness
`Act of 2005, 28 U.S.C. § 1332(d), with a nationwide class and California sub-class.
`94. The Class is defined as follows:
`All U.S. citizens who purchased the Product in California on or after June 1,
`2014, excluding Defendant and Defendant’s officers, directors, employees,
`agents, and affiliates, and the Court and its staff.
`95. The California sub-class is defined as follows:
`All California citizens who purchased the Product in California on or after
`June 1, 2014, excluding Defendant and Defendant’s officers, directors,
`employees, agents, and affiliates, and the Court and its staff.
`96. During the Class Period, the Products unlawfully contained the undisclosed
`artificial flavors d-malic acid or d-l malic acid and were otherwise improperly labeled as
`alleged herein. Defendant failed to label the Products as required by California law.
`97. The proposed Class and sub-class meet all criteria for a class action, including
`numerosity, typicality, superiority, and adequacy of representation.
`98. The proposed Class and sub-class satisfy numerosity. The Products are
`offered for sale at over two thousand supermarkets in California alone; the Class numbers
`at minimum in the hundreds of thousands. Individual joinder of the class members in this
`action is impractical. Addressing the class members’ claims through this class action will
`benefit Class members, the parties, and the courts.
`99. The proposed Class and sub-class satisfy typicality. Plaintiffs’ claims are
`typical of and are not antagonistic to the claims of other Class members. Plaintiffs and the
`class members all purchased the Products, were deceived by the false and deceptive
`labeling, and lost money as a result, purchasing products that were illegal to sell in
`California and the United States.
`100. The proposed Class and sub-class satisfy superiority. A class action is
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`superior to any other means for adjudication of the Class members’ claims because each
`class member’s claim is modest, based on the Product’s retail purchase price which is
`generally under $5.00. It would be impractical for individual class members to bring
`individual lawsuits to vindicate their claims.
`101. Because Defendant’s misrepresentations were made on the label of the
`Products themselves, all Class members including Plaintiffs were exposed to and continue
`to be exposed to the omissions and affirmative misrepresentations. If this action is not
`brought as a class action, Defendant can continue to deceive consumers and violate
`California and other states’ laws with impunity.
`102. The proposed Class representatives satisfy adequacy of representation. Each
`Plaintiffs is an adequate representative of the Class as each seeks relief for the Class, their
`interests do not conflict with the interests of the Class members, and each has no interest
`antagonistic to those of other class members. Plaintiffs have retained counsel who are
`competent in the prosecution of consumer fraud and class action litigation.
`103. There is a well-defined community of interest in questions of law and fact
`common to the Class, and these predominate over any individual questions affecting
`individual Class members in this action.
`104. Questions of law and fact common to Plaintiffs and the Class include:
`a. Whether Defendant failed to disclose the presence of the
`artificial flavoring ingredient dl-malic acid in the Product;
`b. Whether Defendant’s label statement, “100% Natural” was a
`false or misleading statement of fact;
`c. Whether Defendant’s labeling omissions and representations
`constituted false advertising under California law;
`d. Whether Defendant’s conduct constituted a violation of
`California’s Unfair Competition Law;
`e. Whether Defendant’s conduct constituted a violation of
`California’s Consumer Legal Remedies Act;
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`f. Whether Defendant’s
`label statements were affirmative
`representations of the Product’s composition and conveyed an
`express warranty;
`g. Whether Defendant’s conduct constitutes a breach of implied
`warranties under California’s Commercial Code;
`h. Whether Defendant’s conduct violates U.S. Food and Drug
`Administration labeling regulations;
`i. Whether the statute of limitations should be tolled on behalf of
`the Class;
`j. Whether the Class is entitled to restitution, rescission, actual
`damages, punitive damages, attorney fees and costs of suit, and
`injunctive relief; and
`k. Whether members of the Class are entitled to any such further
`relief as the Court deems appropriate.
`105. Plaintiffs will fairly and adequately protect the interests of the Class, have no
`interests that are incompatible with the interests of the Class, and have retained counsel
`competent and experienced in class litigation.
`106. Defendant has acted on grounds applicable to the entire Class, making final
`injunctive relief or declaratory relief appropriate for the Class as a whole.
`107. Class treatment is therefore appropriate. Plaintiffs will, if notice is required,
`confer with Defendant and seek to present the Court with a stipulation and proposed order
`on the details of a class notice plan.
`VII. CAUSES OF ACTION
`First Cause of Action: Violation of the CLRA
`108. Plaintiffs realleges and incorporates by reference the allegations made
`elsewhere in the Complaint as if set forth in full herein.
`109. The California Consumers Legal Remedies Act, Cal. Civ. Code §1750 et seq.
`prohibits any unfair, deceptive and unlawful practices, and unconscionable commercial
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