103.  Plaintiff brings this action on behalf of herself and all others similarly  situated (the “Class”) in accordance with Rule 23(a), (b)(2), and (b)(3) of the Federal Rules  of Civil Procedure and seeks certification of the following Class against Defendant:  All persons who purchased, on or after April 4, 2010 Defendant’s Senna Products (in  Case3:14-cv-01570-MMC   Document1   Filed04/04/14   Page20 of 41  1   2   3   4   5   6   7   8   9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  20  Johnson v. Triple Leaf Tea Inc.  11.  This is a consumer protection class action lawsuit on behalf of purchasers of  Triple Leaf brand products marketed by Defendant as “Dieter’s Green Herbal Tea,” “Ultra  Slim Herbal Tea,” and “Super Slimming Herbal Tea” (together, “Senna Diet Products” or  Case3:14-cv-01570-MMC   Document1   Filed04/04/14   Page3 of 41  1   2   3   4   5   6   7   8   9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  3  Johnson v. Triple Leaf Tea Inc.  36.  Defendant Triple Leaf has used and continues to use labeling, advertising,  and the Internet, to market Dieter’s Green Herbal Tea, Ultra Slim Herbal Tea and Super  Slimming Herbal Tea (“Senna Diet Products” or “Products”), which Defendant claims, inter  Case3:14-cv-01570-MMC   Document1   Filed04/04/14   Page7 of 41  1   2   3   4   5   6   7   8   9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  7  Johnson v. Triple Leaf Tea Inc.  Breach of Implied Warranty of Merchantability  Cal. Com. Code §§ 2314(1), 2314(2)(f)  [On Behalf of Plaintiff and the Class and Against the Defendant]  152.  Plaintiff repeats, realleges and incorporates by reference each and every  allegation contained above as if fully set forth herein.    153.  Defendant, in its sale, marketing and promotion of its Products, and the acts  and omissions as set forth herein, made representations to Plaintiff and the Class in the form  of statements and representations on the Products’ labels. See Exhibits 1 - 4.  Specifically,  Defendant asserted the Product was a “Dieter’s Green Tea,” “Ultra Slim Herbal Tea,” and  “Super Slimming Herbal Tea” each of which would “Offer . . . Herbal Support While  Dieting,” which constituted express warranties.  154.  Plaintiff and the Class purchased the Products manufactured, advertised and  sold by Defendant.     155.  Defendant is a merchant with respect to the goods of this kind which were  sold to Plaintiff and the Class, and there was in the sale to Plaintiff and other consumers an  implied warranty that those goods were merchantable.    156.  However, Defendant breached that warranty implied in the sale of goods, in  that the Products did not provide the purported benefits, as set forth in detail herein.    157.  As a result of Defendant’s conduct, Plaintiff and the Class did not receive  goods as impliedly warranted by Defendant to be merchantable in that they did not conform  to the promises and affirmations made on the container or label of the goods.    158.  Plaintiff and Class have sustained damages as a proximate result of the  foregoing breach of implied warranty in an amount to be determined at trial.  Breach of Express Warranty  [On Behalf of Plaintiff and the Class and Against the Defendant]  148.  Plaintiff repeats, realleges and incorporates by reference each and every  allegation contained above as if fully set forth herein.    149.  On the Products’ labels (see Exhibits 1 - 4), Defendant expressly warranted  that the Products were effective, proper, and safe for their intended use.  Defendant made  affirmations of fact or promises, or description of goods, which were “part of the basis of  the bargain,” in that Plaintiff and the Class purchased the Products in reasonable reliance on  the Products’ labeling statements.  Cal. Com. Code §2313(1); see also Zwart v. Hewlett- Packard Co., 2011 WL 3740805 (N.D. Cal., Aug. 23, 2011) (holding that online assertions  can create warranties).  Specifically, Defendant asserted the Product was a “Dieter’s Green  Tea,” “Ultra Slim Herbal Tea,” and “Super Slimming Herbal Tea” each of which would  “Offer . . . Herbal Support While Dieting,” which constituted express warranties.  150.  Defendant breached the express warranties with Plaintiff and the Class by not  selling the Products that provided the benefits described above, and that breach actually and  proximately caused injury in the form of the lost purchase price for the Products.    151.  As a result of Defendant’s breach of their warranties, Plaintiff and the Class  Case3:14-cv-01570-MMC   Document1   Filed04/04/14   Page29 of 41  1   2   3   4   5   6   7   8   9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  Johnson v. Triple Leaf Tea Inc.  For Violations of the Consumers Legal Remedies Act  Civil Code §§ 17500, et seq.  [On Behalf of Plaintiff and the Class and Against the Defendant]  116.  Plaintiff repeat, re-allege and incorporate by reference each and every  allegation contained above as if fully set forth herein.  117.  At all times relevant herein, there was in full force and effect the Consumers  Legal Remedies Act, California Civil Code §§ 1750, et seq. (the “Consumers Legal  Remedies Act”) and similar deceptive practice acts in other states.  Plaintiff are consumers  as defined by Civil Code § 1761(d).  The Products are goods within the meaning of Civil  Code § 1761(a).  118.  Defendant violated and continues to violate the Consumers Legal Remedies  Act by engaging in the following practices proscribed by § 1770(a), in transactions with  Plaintiff and the Class which were intended to result in, and did result in, the sale of the  Products:  (a) Advertising that the Products are effective for weight loss when they are not;   (b) Representing that the Products have characteristics, uses or benefits which they do  not have;  (c) Representing that the Products are of a particular standard, quality or grade when  Case3:14-cv-01570-MMC   Document1   Filed04/04/14   Page23 of 41  1   2   3   4   5   6   7   8   9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  23  Johnson v. Triple Leaf Tea Inc.  Violations of California Business and Professions  Code Section 17500 et seq. (False Advertising Law)  [On Behalf of Plaintiff and the Class and Against the Defendant]  141.  Plaintiff repeats, realleges and incorporates by reference each and every  allegation contained above as if fully set forth herein.    142.  Plaintiff has standing to pursue this claim as Plaintiff suffered injury in fact  as a result of Defendant’s actions as set forth herein.  Specifically, prior to the filing of this  action, Plaintiff purchased the Product in reliance upon Defendant’s marketing claims.  Plaintiff used the Product as directed, but the Product did not work as advertised, nor  provide any of the promised benefits.    143.  Defendant’s business practices as alleged herein constitute unfair, deceptive,  untrue, and misleading advertising pursuant to California Business and Professions Code  section 17500, et seq. because Defendant has advertised their Products in a manner that is  untrue and misleading, or that Defendant knew was untrue or misleading, or omitted  material information from their advertising which Defendant had a duty to disclose.    144.  Defendant’s wrongful business practices have caused injury to Plaintiff and  the Class, in the form of the lost purchase price of the Products.  Plaintiff and the Class  purchased the Products after being exposed to Defendant’s false or deceptive advertising  claims, as described herein.    145.  Defendant’s conduct caused and continues to cause substantial injury to  Plaintiff and the other members of the Class.  Plaintiff and the Class continue to be exposed  to Defendant’s false and/or misleading advertising every time they shop for dietary  Case3:14-cv-01570-MMC   Document1   Filed04/04/14   Page28 of 41  1   2   3   4   5   6   7   8   9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  28  Johnson v. Triple Leaf Tea Inc.  Violation of California Business & Professions  Code Section 17200 et seq. (Unfair Competition Law)  [On Behalf of Plaintiff and the Class and Against the Defendant]  127.  Plaintiff repeat, re-allege and incorporate by reference each and every  allegation contained above as if fully set forth herein.  128.  Business & Professions Code Section 17200 prohibits any “unlawful, unfair  or fraudulent business act or practice and unfair, deceptive, untrue or misleading  advertising.”  For the reasons discussed above, Defendant has engaged in “unlawful”  business acts or practices by, among other things, making misrepresentations and omissions  of material facts, as set forth more fully above, and violating, among other statutes, Civil  Code §§ 1572, 1573, 1709, 1710, 1711, 1770, Business & Professions Code § 17500, et  seq., Health & Safety Code § 109875, et seq., and the common law.  129.  The acts, omissions, misrepresentations, practices, and non-disclosures of  Defendant as alleged herein constitute “unlawful” business acts and practices in that  Defendant’s conduct violates the False Advertising Law, the Consumer Legal Remedies  Act, and the Sherman Law.  Defendant’s deceptive statements with regards to their Products  described herein violate 21 U.S.C. § 343(a), which deems food (including nutritional  supplements) misbranded when the label contains a statement that is “false or misleading in  Case3:14-cv-01570-MMC   Document1   Filed04/04/14   Page25 of 41  1   2   3   4   5   6   7   8   9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  25  Johnson v. Triple Leaf Tea Inc. 