throbber
(CITfggfifl‘gElseIAL)
`
`NOTICE TO DEFENDANT:
`
`(A VISO AL DEMANDADO):
`
`MAPLEBEAR INC. d/b/a INSTACART, and DOES 1—10 Inclusive,
`
`YOU ARE BEING SUED BY PLAINTIFF:
`(LO ESTA DEMANDANDO EL DEMANDANTE):
`
`SUM-100
`
`(sogfiii‘iiur’fs’ouéiffé‘émo
`
`
`
`
`
`
`
`James Andrews, individually and on behalf of all others similarly
`situated,
`
`
` NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information
`
`
`below.
`You have 30 CALENDAR DAYS after this summons and legalpapers are served on you to file a written response at this court and have a copy
`
`
`served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your
`case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts
`
`
`Online Self-Help Center (www.courtinfo.ca.gov/selfhelp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask
`
`
`the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property
`
`
`may be taken without further warning from the court.
`
`
`There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney
`
`
`referral service. If you cannot afford an attorney, you may be eligible for free legal sen/ices from a nonprofit legal services program. You can locate
`
`
`these nonprofit groups at the California Legal Sen/ices Web site (www.lawhelpcalifomia.org), the California Courts Online Self-Help Center
`
`
`(www.courtinfo.ca.gov/sellhelp), or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees and
`
`
`costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be paid before the court will dismiss the case.
`
`
`iAVlSO! Lo han demandado. Si no responde dentro de 30 dlas, Ia corte puede decidir en su contra sin escuchar su versidn. Lea Ia informacion a
`
`
`continuacién.
`
`
`Tiene 30 DIAS DE CALENDAR/O después de que le entreguen esta citacién y papa/es Iegales para presenter una respuesta por escrito en esta
`
`
`corte y hacer que se entregue una copia al demandante. Una carta o una llamada telefonica no lo protegen. Su respuesta por escril‘o tiene que estar
`
`
`en fonnato legal correcto si desea que procesen su caso en la corte. Es posible que haya un formulario que usted pueda usar para su respuesta.
`
`
`Puede encontrar estos formularios de la corte y mas informacion en el Centro de Ayuda de las Cortes de California (www.sucorte.ca.gov), en la
`
`
`biblioteca de leyes de su condado 0 en la corte que le quede mas cerca. Si no puede pagarla cuota de presentacion, pida al secretario de la corte
`
`
`que le dé un formulario de exencién de pago de cuotas. Si no presenta su respuesta a tiempo, puede perder el caso porincumplimiento y la corte le
`
`
`podra quitar su sue/do, dinero y bienes sin mas advertencia.
`
`
`Hay otros requisitos legales. Es recomendable que Name a un abogado inmediatamente. Si no conoce a un abogado, puede llamar a un servicio de
`
`
`remision a abogados. Si no puede pagar a un abogado, es posible que cumpla con los requisites para obtener sen/icios Iegales gratuitos de un
`
`
`programa de servicios legales sin fines de Iucro. Puede encontrar estos grupos sin fines de lucro en el sitio web de California Legal Services,
`
`
`(www.1awhelpcalifornia.org), en el Centro de Ayuda de Ias Cortes de California, (www.5ucorte.ca.gov) o poniéndose en contacto con la corte 0 el
`
`
`colegio de abogados locales. AVISO: Porley, la corte tiene derecho a rec/amarlas cuotas y los costos exenfos porimponer un gravamen sobre
`
`cualquier recuperacién de $10, 000 d mas de valor recibida mediante un acuerdo o una concesién de arbitraje en un caso de derecho civil. Tiene que
`pagar el gravamen de la corte antes de que la corte pueda desechar el caso.
`
`CASE NUM BER:
`(Numero del Caso):
`
`
`
`
`
`.
`_
`_
`The name and address of the court is:
`(El nombre y direccidn de la corte es): CIVIC Center Courthouse
`400 McAllister St.
`
`San Francisco, CA 94102-4514
`The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, is:
`(El nombre, la direccién y el numero de teléfono del abogado del demandante, 0 del demandante que no tiene abo
`Todd M. Friedman, Law Offices of Todd M. Friedman, PC,
`21550 Oxnard St., Ste. 780, Woodland Hills, CA 91367, 323-306-4234
`DATE:
`', r ,
`Clerk, by
`Clerk Of the Court
`(Fecha) mg i} 7'? gig;
`(Secretario)
`(For proof of service of this summons, use Proof of Service of Summons (form POS—010).)
`(Para prueba de entrega de esta citatio’n use el formulario Proof of Service of Summons,
`NOTICE TO THE PERSON SERVED: You are served
`
`
`
`: Deputy
`(Adjunto)
`
`
`03—010)).
`GELIGA SUNGA
`
`do, es):
`
`1. [:3 as an individual defendant.
`2. [:1 as the person sued under the fictitious name of (specify):
`
`3_ I: on behalf of (specify):
`
`
`
`l:| CCP 416.60 (minor)
`under: l:| CCP 416.10 (corporation)
`|:| CCP 416.70 (conservatee)
`[:1 GOP 416.20 (defunct corporation)
`|:| CCP 416.40 (association or partnership) |:| CCP 416.90 (authorized person) ‘
`
`
`I:I other (specify):
`
`4. I:] by personal delivery on (date):
`
`
`Form Adepted for Mandatory Use
`SUMMONS
`Code oi Civil Procedure §§ 412.20, 465
`Judicial Council of Califomia
`‘
`www.courtinfo.ca.gov
`SUM-10Q [Rev July 1. 2009]
`
`_AmericanLegalNel Inc
`www.FormsWorkflow.com
`
`

`

`,
`
`Adrian R. Bacon (SBN 280332)
`
`Todd M. Friedman (SBN 216752)
`Meghan E. George (SBN 274525)
`Thomas E. Wheeler (SBN 308789)
`LAW OFFICES OF TODD M. FRIEDMAN, P.C.
`21550 Oxnard St. Suite 780,
`Woodland Hills, CA 91367
`Phone: 323-306—4234
`
`Fax: 866—633-0228
`
`tfriedman@toddflaw.com
`abacon@toddflaw.com
`mgeorge@toddflaw.com
`twheeler@toddflaw.com
`Attorneysfor Plaintiff James Andrews
`
`N #
`
`UJ
`
`5 6 7 8 9
`
`
`
`.
`
`.
`
`sugéglg-RECgURT
`COUNT) OF SAN FRANCISCO
`MAR j .7 . 2021
`,._:
`'
`.
`
`SUPERIOR COURT OF THE STATE OF CALIFORNIA
`
`FOR THE COUNTY OF SAN FRANCISCO
`
`UNLIMITED JURISDICTION
`
`James Andrews, individually and on behalf
`
`Case No. 060- 2 1 - 5 9 0 20 1
`
`of all others similarly situated,
`
`Plaintiffs,
`
`CLASS ACTION COMPLAINT
`
`VS.
`
`MAPLEBEAR INC. d/b/a INSTACART,
`and DOES 1'10 Inclusive,
`
`Defendant.
`
`(1) Violation of Unfair Competition Law
`(Cal. Business & Professions Code
`§§ 17200 et seq.)
`(2) Violation of False Advertising Law (Cal.
`Business & Professions Code §§ 17500 et
`seq.)
`(3) Violation of Consumer Legal Remedies
`Act (Cal. Civ. Code §§ 1750 et seq.)
`
`
`
`Jury Trial Demanded
`
`
`
`CLASS ACTION COMPLAINT
`
`
`
`

`

`Plaintiff James Andrews (“Plaintiff”), on behalf of himself and all others similarly
`
`situated, alleges as follows:
`
`NATURE OF THE ACTION & COMMON ALLEGATIONS OF FACT
`
`1.
`
`Plaintiff brings this class action Complaint against Defendant MAPLEBEAR
`
`INC. d/b/a TNSTACART (hereinafter “Defendant” or “Instacart”) to stop Defendant’s practice
`
`of overcharging its customers, such as Plaintiff, when it makes substitutions such as for lower
`
`weight produce or for cheaper substitute products (“the Substitute Goods”). Even though
`
`Defendant makes such substitutions and thus pays a lower price for the substituted goods, it still
`
`charges Plaintiff and other customers the full price of the unsubstituted products, thus pocketing
`
`the difference in price. Plaintiff seeks to obtain redress for a California class of consumers
`
`(“Class Members”) who were overcharged for the Substitute Goods, within the applicable
`
`statute of limitations period by Defendant.
`
`2.
`
`Defendant represented to Class Members the prices for certain products to be
`
`sold by Defendant through its app, the Instacart App.
`
`3 .
`
`Plaintiff and others similarly situated viewed and relied on these representations
`
`on Defendant’s App.
`
`4.
`
`These representations were misrepresentations in instances where Defendant
`
`would make substitutions for cheaper products but still charge Plaintiff and Class Members for
`
`the more expensive original goods which were not delivered.
`
`5.
`
`Defendant’s misrepresentations to Plaintiff and others similarly situated caused
`
`them to purchase goods from Defendant at a certain price and resulted in them overpaying
`
`Defendant when Defendant substitute the goods without adjusting the pricing.
`
`6.
`
`Defendant took advantage of Plaintiff and similarly situated consumers unfairly
`
`and unlawfully.
`
`7.
`
`Consumers enter into agreements based on the goods and services offered and
`
`features of those goods and services such as the price.
`
`8.
`
`Consumers rely on the representations of service providers in order to know
`
`
`
`CLASS ACTION COMPLAINT
`
`4:.
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`which goods and services to purchase.
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`9.
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`Defendant is a seller that is engaged in the selling, marketing, and supplying of
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`product delivery through its Instacart App.
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`10.
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`Defendant profits from the sale of the Substitute Goods because it retains the
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`difference in price between the original good and the cheaper Substitute Good. If Defendant
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`had informed consumers of this policy, many of the consumers would not have agreed to
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`purchase products which were not delivered and for which they were charged despite cheaper
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`substitutes being provided instead.
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`11.
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`Consumers are unable to ascertain that Defendant will engage in this Substitute
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`Goods practice, based on the representations of Defendant.
`12.
`The aforementioned written representations are objectively false and constitute
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`a false advertisement under Cal. Bus. & Prof. Code §§ 17500 et. seq., and an unlawful, unfair,
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`or deceptive business practices under Cal. Bus. & Prof. Code §§ 17200 et. seq.
`
`13.
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`Defendant’s violations of the law include, but are not limited to, the false
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`advertising, marketing, representations, and sale of the overpriced Substitute Goods to
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`consumers statewide.
`
`14.
`
`On behalf of the Class, Plaintiff seeks an injunction requiring Defendant to cease
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`advertising and selling the Substitute Goods at unjustified premiums and an award of damages
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`to the Class Members, together with costs and reasonable attorneys’ fees.
`
`JURISDICTION AND VENUE
`
`15.
`
`This Court has jurisdiction over the alleged Violations of the California Business
`
`and Professions Code §§ 17200, et seq., California Business and Professions Code §§ 17500 et.
`seq., and the California Consumer Legal Remedies Act, Cal. Civ. Code §§ 1750 et seq.
`
`16.
`
`This case is subject to the jurisdiction of this Court pursuant to California
`
`Business and Professions Code, and the California Code of Civil Procedure. Defendant does
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`business throughout the State of California. The unlawful acts alleged herein have a direct effect
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`on Plaintiff and other consumers similarly situated within the State of California. Plaintiff and
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`
`
`CLASS ACTION COMPLAINT
`
`

`

`\OOOQQUI-PUJNH
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`the Class Members have suffered damages and will continue to suffer the same harm as the
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`Plaintiff as a result of Defendant’s wrongful conduct unless the relief requested herein is
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`granted.
`17.
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`This matter is properly venued in the county ofSan Francisco in that Defendant’s
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`‘
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`headquarters is in San Francisco, California.
`
`THE PARTIES
`
`18.
`
`Plaintiff James Andrews is a citizen and resident of the State of California,
`
`County of Riverside.
`
`19.
`
`Defendant MAPLEBEAR INC. d/b/a INSTACART is a Delaware Corporation
`
`with its headquarters in San Francisco, California that is licensed to do business in the State of
`
`California and that does business in California, including in the County of San Francisco.
`
`20.
`
`Plaintiff is informed and believes, and thereon alleges, that each and all of the
`
`acts and omissions alleged herein were performed by, or is attributable to, Defendants and/or
`its employees, agents, and/or third parties acting on its behalf, each acting as the agent for the
`
`other, with legal authority to act on the other’s behalf. The acts of any and all of Defendants’
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`employees, agents, and/or third parties acting on its behalf, were in accordance with, and
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`represent, the official policy of Defendants.
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`21.
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`Plaintiff is informed and believes, and thereon alleges, that said Defendants are
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`in some manner intentionally, negligently, or otherwise responsible for the acts, omissions,
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`occurrences, and transactions of each and all its employees, agents, and/or third parties acting
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`on its behalf, in proximately causing the damages herein alleged.
`22.. At all relevant times, Defendants ratified each and every act or omission
`
`complained of herein. At all relevant times, Defendants aided and abetted the acts and
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`omissions as alleged herein.
`
`PLAINTIFF’S FACTS
`
`23 .
`
`On or about April 2020, Plaintiff made multiple purchases through Defendant for
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`the purchase and delivery of items from his local Stater Bros.
`
`
`
`CLASS ACTION COMPLAINT
`
`
`
`
`
`[\JNNNNN7NNN>—‘D—Ir—Ir—a>—lr—ID—ip—A>—r—-
`
`
`
`
`
`

`

`24. While using Defendant’s Instacart App, Plaintiff selected specific items he
`
`wanted and was specifically cited the price of those items and was charged those prices. These
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`selections include produce which was quoted at a certain rate and for which Plaintiff was
`
`charged a price per weight unit
`
`25 .
`
`Upon receiving his delivery from Defendant, Plaintiff discovered that Defendant
`
`had made substitutions for certain selected products. Defendant sent an email outlining the
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`Substitute Goods and price of those goods.
`
`26.
`
`However, even though Defendant substituted certain selected goods for
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`Substitute Goods which were cheaper, Defendant did not refund this difference in price.
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`Additionally, Defendant provided Substitute Goods in the form of produce which was at a lower
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`weight than quoted and paid for by Plaintiff, but Defendant did not refund this difference despite
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`providing a lower priced product.
`
`27. When Plaintiff agreed to use Defendant’s App, Defendant failed to communicate
`
`that it would retain the prices of the original products even when it provided Substitute Goods
`
`of a lower price.
`
`28.
`
`Based on the advertised and promised products, Plaintiff agreed to purchase from
`
`Defendant’s App.
`
`29.
`
`30.
`
`For the Substitute Goods, Plaintiff paid more than valuable consideration.
`
`Relying on the assurance that Plaintiff would receive the selected goods or only
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`be charged as appropriate for the Substitute Goods, Plaintiff agreed to purchase from Defendant.
`3 l .
`Upon discovering that Defendant pocketed the premium difference between the
`
`selected goods and the Substitute Goods, Plaintiff felt ripped off, cheated by, and damaged by
`
`Defendant.
`
`32.
`
`Such sales tactics as used by Defendant rely on falsities and have a tendency to
`
`mislead and deceive a reasonable consumer.
`
`33 .
`
`Defendant expressly represented to Plaintiff, through written statements and
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`advertising, that the he would not be overcharged for the Substitute Goods.
`
`
`
`CLASS ACTION COMPLAINT
`
`#9.)
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`34.
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`Plaintiff alleges that such representations were part of a common scheme to
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`mislead consumers and incentivize them to purchase from Defendant who would provide
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`Substitute Goods but still charge Plaintiff the price of the original goods.
`
`35.
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`Plaintiff would not have agreed to purchase from Defendant if he knew that the
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`above—referenced statements made by Defendant were false.
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`36.
`
`Plaintiff gave his money to Defendant because of the representation regarding
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`the goods to be provided and that he would not be overcharged for Substitute Goods. Defendant
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`benefited from falsely representing the price of the Substitute Goods. Plaintiff received no
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`benefit from the overcharge price he paid for the Substitute Goods. Defendant benefited on the
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`loss to Plaintiff and provided nothing of benefit to Plaintiff in exchange.
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`37.
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`Had Defendant properly marketed, advertised, and represented the Substitute
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`Goods, no reasonable consumer who purchased from Defendant would have believed that
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`Defendant would not overcharge for the Substitute Goods.
`
`CLASS ACTION ALLEGATIONS
`
`38.
`
`Plaintiff brings this action, on behalf of himself and all others similarly situated,
`
`and thus, seeks class certification under Cal. Civ. C. § 382.
`
`39.
`
`The class Plaintiff seeks to represent (the “Class”) is defined as follows;
`
`All California consumers who, between the applicable statute of
`limitations and the present, made a purchase from Defendant
`through its Instacart App where Defendant provided a cheaper
`Substitute Good but did not refund the difference in price between
`the Substitute Good and the original selected good during the
`Class Period.
`
`40.
`
`As used herein, the term “Class Members” shall mean and refer to the members
`
`of the Class described above.
`
`41.
`
`Excluded from the Class are Defendant, its affiliates, employees, agents, and
`
`attorneys, and the Court.
`
`42.
`
`The Class Period is defined as four years prior to the date of filing for this
`
`Complaint and the present.
`
`
`
`CLASS ACTION COMPLAINT
`
`

`

`43.
`
`Plaintiff reserves the right to amend the Class, and to add additional subclasses,
`
`if discovery and further investigation reveals such action is warranted.
`
`44.
`
`Upon information and belief, the proposed class is composed of hundreds of
`
`persons. The members of the class are so numerous that joinder of all members would be
`
`unfeasible and impractical.
`
`45.
`
`No violations alleged in this complaint are contingent on any individualized
`
`interaction of any kind between Class Members and Defendant.
`
`46.
`
`Rather, all claims in this matter arise from the identical, false representations that
`
`consumers would be charged the price of the Substitute Goods instead of the price of the
`
`originally selected goods, when in fact, such representations were false.
`
`‘ 47.
`
`There are common questions of law and fact as to the Class Members that
`
`predominate over questions affecting only individual members, including but not limited to:
`
`(a)
`
`Whether Defendant engaged in unlawful, unfair, or deceptive business
`
`practices in selling Substitute Goods to Plaintiff and other Class
`
`Members;
`
`(b) Whether Defendant made misrepresentations with respect
`
`to the
`
`Substitute Goods sold to consumers;
`
`(c)
`
`Whether Defendant profited from the sale of the Substitute Goods;
`
`(d) Whether Defendant violated California Bus. & Prof. Code § 17200, et
`
`seq., California Bus. & Prof. C. § 17500 et. seq., and California Civ. Code
`
`§ 1750, et seq.;
`
`(e)
`
`Whether Plaintiff and Class Members are entitled to equitable and/or
`
`injunctive relief;
`
`(f)
`
`Whether Defendant’s unlawful, unfair, and/or deceptive practices harmed
`
`Plaintiff and Class Members; and
`
`(g)
`
`The method of calculation and extent of damages for Plaintiff and Class
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`Members.
`
`
`
`CLASS ACTION COMPLAINT
`
`#C)
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`

`48.
`49.
`
`Plaintiff is a member of the class he seeks to represent
`The claims of Plaintiff are not only typical of all class members, they are
`
`identical.
`
`50.
`
`All claims of Plaintiff and the class are based on the exact same legal theories.
`
`51.
`
`Plaintiff has no interest antagonistic to, or in conflict with, the class.
`
`52.
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`Plaintiff is qualified to, and will, fairly and adequately protect the interests of
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`each Class Member, because Plaintiff purchased and thenlreceived a Substitute Good from
`
`Defendant for which he was overcharged during the Class Period. Defendant’s unlawful, unfair
`
`and/or fraudulent actions concern the same business practices described herein irrespective of
`
`where they occurred or were experienced. Plaintiff’s claims are typical of all Class Members
`
`as demonstrated herein.
`
`53.
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`Plaintiff will thoroughly and adequately protect the interests of the class, having
`
`retained qualified and competent legal counsel to represent himself and the class.
`
`54.
`
`Common questions will predominate, and there will be no unusual manageability
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`issues.
`
`FIRST CAUSE OF ACTION
`
`Violation of the California False Advertising Act
`
`(Cal. Bus. & Prof. Code §§ 17500 et seq.)
`
`55.
`
`Plaintiff incorporates by reference each allegation set forth above.
`
`56.
`
`Pursuant to California Business and Professions Code section 17500, et seq., it
`
`is unlawful to engage in advertising “which is untrue or misleading, and which is known, or
`
`which by the exercise of reasonable care should be known, to be untrue or misleading...or...to
`
`so make or disseminate or cause to be so made or disseminated any such statement as part of a
`
`plan or scheme with the intent not to sell that personal property or those services, professional
`
`or otherwise, so advertised at the price stated therein, or as so advertised.”
`
`57.
`
`California Business and Professions Code section 17500, et seq.’s prohibition
`
`against false advertising extends to the use of false or misleading written statements.
`
`
`
`CLASS ACTION COMPLAINT
`
`\DOOQON
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`58.
`
`Defendant misled consumers by making misrepresentations
`
`and untrue ‘
`
`statements about the prices of the Substitute Goods, namely, Defendant represented and
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`advertised that when it made a substitution and provided Substitute Goods, it would charge the
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`updated price for the Substitute Goods, when in fact it charged the original premium price, and
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`made false representations to Plaintiff and other putative Class Members in order to solicit these
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`transactions.
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`59.
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`Defendant knew that
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`its representations and omissions were untrue and
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`misleading, and deliberately made the aforementioned representations and omissions in order
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`to deceive reasonable consumers like Plaintiff and other Class Members.
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`60.
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`As a direct and proximate result of Defendants’ misleading and false advertising,
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`Plaintiff and the other Class Members have suffered injury in fact and have lost money or
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`property. Plaintiff reasonably relied upon Defendant’s representations regarding the Substitute
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`Goods.
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`In reasonable reliance on Defendant’s false advertisements, Plaintiff and other Class
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`Members purchased from Defendant and received Substitute Goods. In turn, Plaintiff and other
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`Class Members were overcharged for Substitute Goods which were different than advertised,
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`and therefore Plaintiff and other Class Members have suffered injury in fact.
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`61.
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`Plaintiff alleges that these false and misleading written representations made by
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`Defendant constitute a “scheme with the intent not to sell that personal property or those
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`services, professional or otherwise, so advertised at the price stated therein, or as so advertised.”
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`62.
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`Defendant advertised to Plaintiff and other putative class members, through
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`written representations and omissions made by Defendants and its employees.
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`63 .
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`Thus, Defendant knowingly sold Substitute Goods to Plaintiff and other putative
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`Class Members when they knew it would overcharge for the Substitute Goods.
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`64.
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`The misleading and false advertising described herein presents a continuing
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`threat to Plaintiff and the Class Members in that Defendant persists and continues to engage in
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`these practices and will not cease doing so unless and until forced to do so by this Court.
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`Defendant’s conduct will continue to cause irreparable injury to consumers unless enjoined or
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`
`
`CLASS ACTION COMPLAINT
`
`

`

`#WN
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`restrained.
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`Plaintiff is entitled to preliminary and permanent
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`injunctive relief ordering
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`Defendant to cease its false advertising, as well as disgorgement and restitution to Plaintiff and
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`all Class Members of Defendant’s revenues associated with their false advertising, or such
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`portion of those revenues as the Court may find equitable.
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`SECOND CAUSE OF ACTION
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`Violation of Unfair Business Practices Act
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`(Cal. Bus. & Prof. Code §§ 17200 et seq.)
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`65.
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`Plaintiff incorporates by reference each allegation set forth above.
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`66.
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`Actions for relief under the unfair competition law may be based on any business
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`act or practice that is within the broad definition of the UCL. Such violations of the UCL occur
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`as a result of unlawful, unfair or fraudulent business acts and practices. A plaintiff is required
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`to provide evidence of a causal connection between a defendant's business practices and the
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`alleged harm--that is, evidence that the defendant's conduct caused or was likely to cause
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`substantial injury. It is insufficient for a plaintiff to show merely that the defendant's conduct
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`created a risk of harm. Furthermore, the "act or practice" aspect of the statutory definition of
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`unfair competition covers any single act of misconduct, as well as ongoing misconduct.
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`UNFAIR
`
`67.
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`California Business & Professions Code § 17200 prohibits any “unfair
`99
`business act or practice. Defendant’s acts, omissions, misrepresentations, and practices as
`
`alleged herein also constitute “unfair” business acts and practices within the meaning of the
`
`UCL in that its conduct is substantially injurious to consumers, offends public policy, and is
`
`immoral, unethical, oppressive, and unscrupulous as the gravity of the conduct outweighs any
`
`alleged benefits attributable to such conduct. There were reasonably available alternatives to
`
`further Defendant’s legitimate business interests, other than the conduct described herein.
`
`Plaintiff reserves the right to allege further conduct which constitutes other unfair business acts
`
`or practices. Such conduct is ongoing and continues to this date.
`
`68.
`
`In order to satisfy the “unfair” prong of the UCL, a consumer must show that the
`
`CLASS ACTION COMPLAINT
`
`

`

`injury: (1) is substantial; (2) is not outweighed by any countervailing benefits to consumers or
`
`competition; and, (3) is not one that consumers themselves could reasonably have avoided.
`
`69.
`
`Here, Defendant’s conduct has caused and continues to cause substantial injury
`
`to Plaintiff and members of the Class. Plaintiff and members of the Class have suffered injury
`
`in fact due to Defendant’s decision to overcharge them for Substitute Goods. Thus, Defendant’s
`
`conduct has caused substantial injury to Plaintiff and the members of the Class.
`
`70. Moreover, Defendant’s conduct as alleged herein solely benefits Defendant
`
`while providing no benefit of any kind to any consumer. Such deception utilized by Defendant
`
`convinced Plaintiff and members of the Class to purchase from Defendant with the belief they
`
`would be charged the actual price of Substitute Goods.
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`In fact, knowing that it would
`
`overcharge for the Substitute Goods, Defendant unfairly profited from their sale,
`
`in that
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`Defendant knew that the expected benefit that Plaintiff would receive from the Substitute Goods
`
`is less than what they actually received. Thus, the injury suffered by Plaintiff and the members
`
`of the Class is not outweighed by any countervailing benefits to consumers.
`
`71.
`
`Finally, the injury suffered by Plaintiff and members of the Class is not an injury
`
`that these consumers could reasonably have avoided. After Defendant falsely represented the
`
`Substitute Goods, these consumers suffered injury in fact due to Defendant’s overcharging after
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`the fact for the Substitute Goods. As such, Defendant took advantage of Defendant’s position
`
`of perceived power in order to deceive Plaintiff and the Class Members. Therefore, the injury
`
`suffered by Plaintiff and members of the Class is not an injury which these consumers could
`
`reasonably have avoided.
`
`72.
`
`Thus, Defendants’ conduct has violated the “unfair” prong of California Business
`
`& Professions Code § 17200.
`
`FRAUDULENT
`
`73.
`
`California Business & Professions Code § 17200 prohibits any “fraudulent
`3
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`business act or practice.’
`
`In order to prevail under the “fraudulent” prong of the UCL, a
`
`consumer must allege that the fraudulent business practice was likely to deceive members of
`
`
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`CLASS ACTION COMPLAINT
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`LII-PWN
`\DOONON
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`the public.
`
`74.
`
`The test for “fraud” as contemplated by California Business and Professions
`
`Code § 17200 is Whether the public is likely to be deceived. Unlike common law fraud, a §
`
`17200 violation can be established even if no one was actually deceived, relied upon the
`
`fraudulent practice, or sustained any damage.
`
`75.
`
`Here, not only were Plaintiff and the Class members likely to be deceived, but
`
`these consumers were actually deceived by Defendant. Such deception is evidenced by the fact
`
`that Plaintiff agreed to purchase from Defendant under the basic assumption that he would
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`appropriately be charged for the Substitute Goods. Plaintiff’s reliance upon Defendant’s
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`deceptive statements is reasonable due to the unequal bargaining powers of Defendant and
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`Plaintiff. For the same reason, it is likely that Defendant’s fraudulent business practice would
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`deceive other members of the public.
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`76.
`
`As explained above, Defendant deceived Plaintiff and other Class Members by
`
`representing the price of the Substitute Goods, when in fact they were overcharged by
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`Defendant.
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`77.
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`Thus, Defendant’s conduct has violated the “fraudulent” prong of California
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`Business & Professions Code § 17200.
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`UNLAWFUL
`
`78.
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`California Business and Professions Code Section 17200, et seq. prohibits “any
`
`unlawful. . .business act or practice.”
`
`79.
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`As explained above, Defendant violated the False Advertising Law, Cal. Bus. &
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`Prof. C. §§ 17500 et. seq., which makes its practices unlawful.
`
`80.
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`Defendants’ practices additionally violated the Consumer Legal Remedies Act,
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`as noted below, which also makes its practices unlawful.
`
`81.
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`Defendant has thus engaged in unlawful, unfair, and fraudulent business acts
`
`entitling Plaintiff and Class Members to judgment and equitable relief against Defendant, as set
`
`forth in the Prayer for Relief. Additionally, pursuant to Business and Professions Code
`
`
`
`CLASS ACTION COMPLAINT
`
`

`

`#ww
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`section 17203, Plaintiff and Class Members seek an order requiring Defendant to immediately
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`cease such acts of unlawful, unfair, and fraudulent business practices and requiring Defendant
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`to correct its actions.
`
`THIRD CAUSE OF ACTION
`
`Violation of Consumer Legal Remedies Act
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`(Cal. Civ. Code § 1750 et seq.)
`
`82.
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`83.
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`Plaintiff incorporates by reference each allegation set forth above herein.
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`Defendant’s actions as detailed above constitute a violation of the Consumer
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`Legal Remedies Act, Cal. Civ. Code §1770 to the extent that Defendant violated the following
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`provisions of the CLRA:
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`a. Representing that goods or services have sponsorship, approval, characteristics,
`ingredients, uses, benefits, or quantities which they do not have or that a person
`has a sponsorship, approval, status, affiliation, or connection which he or she does
`not have. Cal. Civ. Code § 1770(5);
`
`. Representing that goods or services are ofa particular standard, quality, or grade,
`or that goods are of a particular style or model, if they are of another. Cal. Civ.
`Code § 1770(7);
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`. Advertising goods or services with intent not to sell them as advertised; Cal. Civ.
`Code § 1770(9);
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`. Representing that a transaction confers or involves rights, remedies, or obligations
`which it does not have or involve, or which are prohibited by law; Cal. Civ. Code
`§1770(14); and
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`. Representing that the subject of a transaction has been supplied in accordance with
`a previous representation when it has not; Cal. Civ. Code §1770(16);
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`84.
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`Pursuant to Cal. Civ. Code §1782(d), Plaintiff brings this cause of action for
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`injunctive relief only at this time, but retains the right to amend his complaint without leave of
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`court to include a request for damages thirty (30) days after compliance with Cal. Civ. Code
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`§1782(a).
`
`MISCELLANEOUS
`
`85.
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`Plaintiff and Class Members allege that they have fully complied with all
`
`
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`CLASS ACTION COMPLAINT
`
`

`

`contractual and other legal obligations and fully complied with all conditions precedent to
`
`bringing this action or all such obligations or conditions are excused.
`
`86.
`
`87.
`
`REQUEST FOR JURY TRIAL
`
`Plaintiff requests a trial by jury as to all claims so triable.
`
`PRAYER FOR RELIEF
`

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