Case 3:16-cv-02694-LB Document 1 Filed 05/18/16 Page 1 of 30
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LAW OFFICES OF RONALD A. MARRON, APLC
RONALD A. MARRON (SBN 175650)
ron@consumersadvocates.com
SKYE RESENDES (SBN 278511)
skye@consumersadvocates.com
651 Arroyo Drive
San Diego, California 92103
Telephone:(619) 696-9006
Facsimile: (619) 564-6665
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[Additional counsel on signature page]
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Attorneys for Plaintiff and the Proposed Class
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
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TAYLOR ELY, on behalf of himself,
all others similarly situated and the
general public,
COMPLAINT FOR:
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Plaintiff,
v.
F. GAVIÑIA & SONS, INC., a
California Corporation,
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Case No.:
Filed:
CLASS ACTION
Defendant.
1. VIOLATION OF CALIFORNIA
CONSUMERS LEGAL
REMEDIES ACT [CIV. CODE §§
1750, et seq.]
2. VIOLATION OF CALIFORNIA
UNFAIR COMPETITION LAW
[BUS. & PROF. CODE §§ 17200,
et seq.]
3. VIOLATION OF CALIFORNIA
FALSE ADVERTISING LAW
[BUS & PROF. CODE §§ 17500,
et seq]
4. BREACH OF EXPRESS
WARRANTY
5. BREACH OF IMPLIED
WARARANTY OF
MERCHANTABILITY
6. BREACH OF MAGNUSONMOSS WARRANTY ACT
DEMAND FOR JURY TRIAL
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Ely v. F. Gaviñia & Sons, Inc.
CLASS ACTION COMPLAINT
Case 3:16-cv-02694-LB Document 1 Filed 05/18/16 Page 2 of 30
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Plaintiff, on behalf of himself, all others similarly situated, and the general
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public (“Plaintiff”), alleges against Defendant F. Gaviñia & Sons, Inc. (“Gavinia”
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or “Defendant”) the following upon his own knowledge, or where there is no
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personal knowledge, upon information and belief and the investigation of his
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counsel:
JURISDICTION AND VENUE
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1.
This Court has original jurisdiction pursuant to 28 U.S.C. §
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1332(d)(2)(A), as amended by the Class Action Fairness Act of 2005, because the
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matter in controversy, exclusive of interest and costs, exceeds the sum or value of
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$5,000,000.00 and is a class action where more than two-thirds of the members of
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the class are citizens of a state different from the Defendant. This Court has
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supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367.
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2.
Personal jurisdiction is derived from the fact that the Defendant
conducts business within the State of California and within this judicial district.
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Venue is proper within this district pursuant to 28 U.S.C. § 1391(b)(2)
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because many of the acts and transactions, including the purchases and sales giving
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rise to this action, occurred in this district and because Defendant:
(i)
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is authorized to conduct business in this district and has
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intentionally availed itself of the laws and markets within this
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district through the promotion, marketing, distribution and sale
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of its products in this district;
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(ii)
does substantial business in this district;
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(iii)
advertises to consumers residing in this district; and,
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(iv)
is subject to personal jurisdiction in this district.
THE PARTIES
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4.
At all times relevant to this matter, Plaintiff Taylor Ely was a resident
of Windsor, California.
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Ely v. F. Gaviñia & Sons, Inc.
CLASS ACTION COMPLAINT
Case 3:16-cv-02694-LB Document 1 Filed 05/18/16 Page 3 of 30
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5.
On information and belief, at all times relevant to this matter,
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Defendant F. Gaviñia & Sons, Inc. was a California corporation that maintains its
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principal place of business, corporate headquarters, and residence in Vernon,
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California.
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Members of the putative class reside in California and other states in
the United States.
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Defendant is the manufacturer, marketer, and seller of coffee
products.
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Defendant produces, markets, and sells its coffee products throughout
the United States, including California.
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Plaintiff is informed and believes and thereon alleges that at all times
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herein mentioned the Defendant and Defendant’s employees were the agents,
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servants and employees of the Defendant, acting within the purpose and scope of
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that agency and employment.
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In addition to selling its Products on the shelf in major retail stores,
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Defendant sells its Products directly to any consumer in the United States online
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via its website, www.donfranciscos.com and www.shopdonfranciscos.com.
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Defendant also distributes its Products to online third party retailers for sale
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directly to consumers through online transactions, and to third party distributors for
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sale directly to consumers in each state in the United States.
BACKGROUND FACTS
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Defendant manufactures, advertises, markets, and sells varieties of
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flavored coffee, branded under the Don Francisco name brand, in cans, bags, and
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single-serving pods (collectively the “Products”).
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The Products are advertised and labeled as containing flavored
coffees, for example, “Cinammon Hazelnut” or “Vanilla Nut”.
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Ely v. F. Gaviñia & Sons, Inc.
CLASS ACTION COMPLAINT
Case 3:16-cv-02694-LB Document 1 Filed 05/18/16 Page 4 of 30
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13.
Under California law, made applicable in this state through the State
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of California’s incorporation of federal Food, Drug and Cosmetics Act (“FDCA”)
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and the Food and Drug Administration’s (“FDA”) implementing regulations, each
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of these flavors as identified on the front label of the Products is referred to as the
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“characterizing flavor” of the product. 21 CFR § 101.22.
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Pursuant to California and FDA regulations, a product’s front label
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must disclose explicitly and prominently whether the product’s characterizing
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flavor is created through the use of natural or artificial ingredients. The words
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“artificial” or “artificially flavored” must appear with the name of the
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characterizing flavor in the type size specified and with no intervening text. Id.
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Defendant’s Products’ characterizing flavors are not created by use of
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the natural ingredients suggested by the Products’ labels.
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respective ingredient list discloses that it is instead flavored with compounds
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identified as “natural and/or artificial flavor.” These Products in fact owe their
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characterizing flavors to Defendant’s covert use of artificial flavors.
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Each Products’
The front of the Products’ packaging does not accurately or lawfully
disclose this critical fact, as required by law.
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Instead, Defendant’s entire packaging, labeling, and marketing
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scheme is intended to give consumers the false or deceptive impression that they
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are buying a premium, naturally-flavored, “gourmet” product.
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Defendant uses phrases like, “VANILLA NUT” superimposed over a
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photograph of a vanilla bean pod and vanilla bean flower, and phrases such as
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“tantalizing aromas of creamy vanilla & freshly roasted nuts,” “Lively Flavors:
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Don Francisco’s has discovered a way to balance the taste of freshly-roasted coffee
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with the bouquet of lively flavorings, you’ll discover that the appetizing aromas of
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roasted nuts, zesty cinnamon, butterscotch or creamy vanilla will bring your coffee
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experience to new heights of satisfaction,” and other representations on the
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Ely v. F. Gaviñia & Sons, Inc.
CLASS ACTION COMPLAINT
Case 3:16-cv-02694-LB Document 1 Filed 05/18/16 Page 5 of 30
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Product’s front label to suggest to the consumer that this is a superior product with
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premium, natural ingredients.
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flavoring.
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In fact, the Products are inexpensive coffees with added artificial
Plaintiff, who was deceived by Defendant’s unlawful conduct, brings
this action to remedy Defendant’s unlawful acts.
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Plaintiff purchased and consumed the Cinnamon Hazelnut and Vanilla
Nut Products multiple times in California during the Class Period defined herein.
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On behalf of the class as defined herein, Plaintiff seeks an order
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compelling Defendant to, inter alia: (1) cease manufacturing, distributing, and
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selling the Product in packaging that fails to comply with FDA regulations and
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California consumer protection laws; (2) conduct a corrective advertising
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campaign, including notice to the class; (3) destroy all misleading and deceptive
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packaging materials; (4) award Plaintiff and other Class-members restitution; and
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(5) pay Plaintiff’s costs, expenses, and attorney fees.
FACTS
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This is a consumer protection class action lawsuit on behalf of
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purchasers of Defendant’s flavored coffees under the Don Francisco’s brand name
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(collectively, the “Products”).
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24.
Defendant manufactures, advertises, distributes and sells its Products
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in major retail stores throughout California and each state in the United States,
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including directly to consumers online.
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25.
Defendant primarily advertises and promotes its Products through
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labeling claims on the front of the Products’ package. Label descriptions on the
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Products’ packaging, taken as a whole, represent that there are various benefits and
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characteristics to the Products. See Ex. 1 for exemplars of some of the Products’
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canned packaging.
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Ely v. F. Gaviñia & Sons, Inc.
CLASS ACTION COMPLAINT
Case 3:16-cv-02694-LB Document 1 Filed 05/18/16 Page 6 of 30
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26.
Defendant’s advertising of its Products is also the subject of an
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extensive and comprehensive marketing campaign in various media including the
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Internet.
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During the class period, Plaintiff was exposed to and saw Defendant’s
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claims about the Cinnamon Hazelnut and Vanilla Nut Products, which expressly
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and impliedly asserted that the Products contained natural flavors as their
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characterizing flavors, as the following photographs indicate.
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Ely v. F. Gaviñia & Sons, Inc.
CLASS ACTION COMPLAINT
Case 3:16-cv-02694-LB Document 1 Filed 05/18/16 Page 7 of 30
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Ely v. F. Gaviñia & Sons, Inc.
CLASS ACTION COMPLAINT
Case 3:16-cv-02694-LB Document 1 Filed 05/18/16 Page 8 of 30
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During the Class Period, Plaintiff routinely purchased Defendant’s
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Cinammon Hazelnut and Vanilla Nut Products at Big John’s Market in Healdsburg
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and other similar grocery stores near his home in Windsor, California for
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approximately $15.00 for each 12-ounce ground coffee can purchase. Plaintiff is a
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consumer as described herein.
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Ely v. F. Gaviñia & Sons, Inc.
CLASS ACTION COMPLAINT
Case 3:16-cv-02694-LB Document 1 Filed 05/18/16 Page 9 of 30
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29.
In purchasing Defendant’s flavored coffee Products, Plaintiff relied
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upon the various representations Defendant made on the Product’s label, including
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but not limited to: “VANILLA NUT,” “CINNAMON HAZELNUT,” “the sweet
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zest of cinnamon sticks and smooth aroma of hazelnuts,” “tantalizing aromas of
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creamy vanilla & freshly roasted nuts,” “Lively Flavors: Don Francisco’s has
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discovered a way to balance the taste of freshly-roasted coffee with the bouquet of
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lively flavorings, you’ll discover that the appetizing aromas of roasted nuts, zesty
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cinnamon, butterscotch or creamy vanilla will bring your coffee experience to new
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heights of satisfaction,” plus large photographs of a vanilla bean pod, vanilla bean
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flower, photographs of cinnamon sticks and actual hazelnuts superimposed behind
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the front of pack labeling representations, to suggest to the consumer that these
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were superior Products with premium, natural ingredients and natural flavors. See
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also Ex. 1.
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30.
Defendant’s Products, however, only reveal on the back of the
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packaging, in small print and unconnected to the front-of-pack images and words,
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where a consumer was not likely to notice, that the Products actually contain
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“natural and/or artificial flavors.” The use of the words “and/or” indicate that
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Defendant itself does not know if it is including actual or artificial flavoring in the
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Products on a regular basis, or does know but feels it does not have to provide the
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truth to consumers.
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Ely v. F. Gaviñia & Sons, Inc.
CLASS ACTION COMPLAINT
Case 3:16-cv-02694-LB Document 1 Filed 05/18/16 Page 10 of 30
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Ely v. F. Gaviñia & Sons, Inc.
CLASS ACTION COMPLAINT
Case 3:16-cv-02694-LB Document 1 Filed 05/18/16 Page 11 of 30
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"Eoch co.ffee-growi<~g countt'l) offer• many g•·o<k$ ofcoffu. somt
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excrllentond some not. Rut a cottnt>·y ':>reputation is a1Wa9sbuiit«
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good ones to keep costs down. ThQt's why a cojjM lover con""'"
pleased with one cup. anq so disappoitt((!d with anotlier.
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We net'erlltixrhe quotity ofco.ffee. We d10o"" rhe !l<l~"Y htgltest~d<of
beans.Ji1>m the best mjJee-g•·owing cowmies, andwek¥tpth(mP''""
The~ Ute roosr t!i!'m in a way that b>·ing;. our their~~niql!fjlat'()r.;wtlht
woq m~Jamily has Jo•·ot•er 135 years
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So•J'yqu wnntcoffee char's built the ~pu(a(jOJt, ir's mSid<.IVtilllflt~
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rounrry's best u.itl /I'll'~ voutlte pl<>asure only o grearcup ofr<t/J~~~
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EXP£11.1£1-;CE TO.SIY•
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Ely v. F. Gaviñia & Sons, Inc.
CLASS ACTION COMPLAINT
Case 3:16-cv-02694-LB Document 1 Filed 05/18/16 Page 12 of 30
31.
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Generally,
Defendant
advertises
its
Products
through
misrepresentations and omissions, as discussed above.
32.
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In purchasing the Products, Plaintiff and consumers reasonably relied
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upon the various representations Defendant makes on the Product’s packaging
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label and its prevalent advertising campaign, including online advertising, as
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described herein. See Ex. 1; Ex. 2 for picture of one of Defendant’s web site
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pages.
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33.
Defendant knows there may be zero natural flavors in its Products,
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and has recklessly labeled all the back packaging of its flavored ground coffees
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Products as containing “natural and/or artificial flavors” rather than distinctly
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informing consumers which coffees do not contain vanilla bean pods, natural
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cinnamon, natural hazelnut, and the like.
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34.
Accordingly, the Products are unlawfully, falsely or deceptively
advertised to consumers.
35.
At all times relevant herein, Defendant had a duty to disclose
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additional information to purchasing consumers, to correct all misunderstandings
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its omissions and misrepresentations created in the minds of those consumers.
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36.
Don Francisco’s flavored coffee Products are a popular, widely selling
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brand throughout the United States. Hence, Defendant’s unfair and deceptive
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practices have enriched them by millions of dollars, at the expense of hundreds of
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thousands of Americans.
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37.
Absent the material misrepresentations and omissions described
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herein, which are material to an average consumer, Plaintiff and other consumers
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would not have purchased the Products or would not have paid the price they did.
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38.
In purchasing Products that were falsely or deceptively advertised,
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Plaintiff suffered injury in fact in the form of the lost purchase price of the
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Products.
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Ely v. F. Gaviñia & Sons, Inc.
CLASS ACTION COMPLAINT
Case 3:16-cv-02694-LB Document 1 Filed 05/18/16 Page 13 of 30
39.
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Plaintiff seeks justice for himself and similarly-situated consumers of
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the Products, by means of this action to enjoin the ongoing deceptive practices
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described herein.
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40.
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by
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misrepresentations.
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false
Defendant’s marketing and promotion of the Products was supported
41.
and
misleading
claims
containing
material
omissions
and
When purchasing the Products, Plaintiff and the class were seeking
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coffee goods that would provide the benefits and characteristics that Defendant
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marketed, promised, represented and warranted.
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42.
Plaintiff and the class purchased the Products believing they had the
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qualities they sought, based on the Products’ deceptive or false labeling, but the
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Products were actually unacceptable to them as they did not possess the benefits,
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endorsements, proof, and characteristics as advertised.
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43.
Moreover, like all reasonable consumers and members of the class,
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Plaintiff considers a label’s compliance with the law a material factor in his
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purchasing decisions. Plaintiff is generally aware that the federal government
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carefully regulates food products and therefore has come to trust that information
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conveyed on packaged food product labels is truthful, accurate, complete, and fully
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in accordance and compliance with the law. As a result, Plaintiff trusts he can
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compare competing products on the basis of their labeling claims, to make a
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purchasing decision.
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44.
Like all reasonable consumers and members of the classes, Plaintiff
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would not purchase a food product he knew was misbranded under federal law, see
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21 U.S.C. § 343, which the federal government prohibits selling, id. § 331, and
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which carries with its sale criminal penalties, id. § 333. Plaintiff could not trust
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that the label of a product misbranded under federal law is truthful, accurate and
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complete.
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Ely v. F. Gaviñia & Sons, Inc.
CLASS ACTION COMPLAINT
Case 3:16-cv-02694-LB Document 1 Filed 05/18/16 Page 14 of 30
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45.
In light of the foregoing, reasonable consumers, including Plaintiff
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and other members of the class, were and are likely to be deceived by Defendant’s
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advertising and marketing practices as detailed herein.
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46.
Further, Plaintiff and other members of the class purchased the
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Products instead of competing products based on the false statements,
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misrepresentations and omissions described herein.
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47.
Instead of receiving a product that had the benefits, advantages,
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endorsements, proof, and characteristics as advertised, Plaintiff and other members
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of the class received a product worth much less, or which was worthless, since the
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Products do not possess the characteristics, benefits, and quality as advertised by
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Defendant.
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48.
Plaintiff lost money as a result of Defendant’s deception in that
Plaintiff did not receive what he had paid for.
49.
Plaintiff altered his position to his detriment and suffered damages in
an amount equal to the amount he paid for the Products over the class period.
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DEFENDANTS’ COMPETITORS LABEL THEIR PRODUCTS
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LAWFULLY
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50.
Defendant not only deceives consumers but also gains an unfair
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commercial advantage in the marketplace by unlawfully and deceptively labeling
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their Products.
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51.
Manufacturers
of
competing
flavored
coffee
products
have
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responsibly decided to correctly label their products. For example, Melitta’s Café
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de Europa blends are honestly and lawfully labeled. Folgers, Dunkin Donuts,
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Maxwell House, and General Foods, to name a few, all lawfully, accurately, and
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prominently label their flavored coffee products as artificially flavored.
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Indeed, Defendant itself manufactures and labels certain of its
flavored coffee products correctly, as shown in the below photo:
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Ely v. F. Gaviñia & Sons, Inc.
CLASS ACTION COMPLAINT
Case 3:16-cv-02694-LB Document 1 Filed 05/18/16 Page 15 of 30
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53.
The above picture of the single serve “pod” packaging for “Family
Reserve” flavored coffee shows that “natural and artificial flavor” is properly
included on the front, below the “Vanilla Nut” advertising, in a font size that
appear to comply with California law and FDA implemental regulations. But
Defendant does not do this for its canned or bagged flavored ground coffee
Products.
54.
Other competing manufacturers, offering products whose labels
suggest as Defendant’s do that their products are naturally flavored, truly are
flavored only with natural ingredients.
55.
Defendant, however, elects instead to conceal their use of artificial
flavoring in the Products in order to deceive a certain targeted audience of
consumers, unlawfully cut costs and increase profits, and compete unfairly and
unlawfully in the marketplace.
56.
Defendant’s conduct therefore also injures competing manufacturers
of flavored coffees, both those that are artificially flavored and those that are
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Ely v. F. Gaviñia & Sons, Inc.
CLASS ACTION COMPLAINT
Case 3:16-cv-02694-LB Document 1 Filed 05/18/16 Page 16 of 30
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naturally flavored, that do not engage in the same unlawful, unfair, and immoral
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behavior. All of these manufacturers compete for market share and limited retail
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shelf space for such products. Defendant’s competitors do so lawfully. Defendant
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does not.
DELAYED DISCOVERY
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57.
Plaintiff and class members did not discover that Defendant’s labeling
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of the Products was false, deceptive, or misleading until approximately March
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2016, when they learned the Products contained artificial flavoring. Until this
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time, they lacked knowledge regarding the facts of their claims against Defendant.
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58.
Plaintiff and the class consists of reasonably diligent consumers who
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exercised reasonable diligence in their purchase, use, and consumption of the
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Products. Nevertheless, they would not have been able to discover Defendant’s
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deceptive practices and lacked the means to discover them given that, like nearly
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all consumers, they rely on and are entitled to rely on a manufacturer’s obligation
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to label its products in compliance with federal regulations and state law.
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59.
Furthermore, Defendant’s labeling practices and non-disclosures—in
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particular, failing to disclose that the Products contain artificial flavoring—
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impeded Plaintiff’s and Class members’ abilities to discover the deceptive and
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unlawful labeling of the Product throughout the Class Period.
CLASS ACTION ALLEGATIONS
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60.
Pursuant to Rules 23(a), (b)(3) and/or (b)(2) of the Federal Rules of
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Civil Procedure, Plaintiff brings this action on behalf of himself and a California
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consumer class, provisionally defined as follows:
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All purchasers of Defendant’s flavored ground Don Francisco coffee
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Products, including, but not limited to, the following flavors: Vanilla
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Nut, Cinnamon Hazelnut, Hawaiian Hazelnut, Caramel Cream,
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Butterscotch Toffee, Caramel Spiced Rum, Frosted Oatmeal Cookie,
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Ely v. F. Gaviñia & Sons, Inc.
CLASS ACTION COMPLAINT
Case 3:16-cv-02694-LB Document 1 Filed 05/18/16 Page 17 of 30
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L’Orange, Butterscotch, Chocolate, Chocolate Raspberry, Coconut
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Cream, Cookies & Cream, Crème D’Irlande, French Caramel, French
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Vanilla, Hazelnut Cream, Macadamia Nut, Nutty Doodle, Vienna
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Cinammon, in all size and package iterations, for personal or
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household use and not for resale, in California from May 18, 2006 to
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the present (the “Class Period”). Excluded from the consumer class
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are governmental entities, the Defendant, any entity in which the
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Defendant has a controlling interest, its employees, officers,
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directors, legal representatives, heirs, successors and wholly or partly
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owned subsidiaries or affiliated companies, including parent
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corporations, class counsel and their employees; and the judicial
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officers and their immediate family members and associated court
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staff assigned to this case.
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61.
The proposed Class is so numerous that individual joinder of all its
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members is impracticable. Due to the nature of the trade and commerce involved,
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however, Plaintiff believes the total number of Class members is at least in the
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hundreds of thousands of persons in the State of California and other states in the
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United States. While the exact number and identities of the Class members are
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unknown at this time, such information can be ascertained through appropriate
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investigation and discovery. The disposition of the claims of the Class members in
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a single class action will provide substantial benefits to all parties and to the Court.
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62.
Pursuant to Rule 23(b)(2), Defendant has acted or refused to act on
23
grounds generally applicable to the Class, thereby making final injunctive relief or
24
corresponding declaratory relief and damages as to its Products appropriate with
25
respect to the Class as a whole. In particular, Defendant has failed to disclose the
26
true nature of the Products being marketed and distributed, as detailed herein.
27
28
17
Ely v. F. Gaviñia & Sons, Inc.
CLASS ACTION COMPLAINT
Case 3:16-cv-02694-LB Document 1 Filed 05/18/16 Page 18 of 30
1
63.
There is a well-defined community of interest in the questions of law
2
and fact involved affecting the Plaintiff and the Class and these common questions
3
of fact and law include, but are not limited to, the following:
a. Whether the claims discussed above are true, misleading, or
4
reasonably likely to deceive;
5
6
b. Whether Defendant’s alleged conduct violates public policy;
7
c. Whether the alleged conduct constitutes violations of the laws
asserted herein;
8
d. Whether Defendant engaged in false or misleading advertising;
9
e. Whether the Plaintiff and Class members are entitled to declaratory
10
and injunctive relief.
11
12
64.
Plaintiff's claims are typical of the claims of the members of the Class.
13
Plaintiff and all members of the Class have been similarly affected by the
14
Defendant's common course of conduct since they all relied on Defendant’s
15
representations concerning its Products and purchased the Products based on those
16
representations.
17
65.
Plaintiff will fairly and adequately represent and protect the interests
18
of the Class. Plaintiff has retained counsel with substantial experience in handling
19
complex class action litigation in general and food labeling claims, in particular.
20
Plaintiff and his counsel are committed to vigorously prosecuting this action on
21
behalf of the Class and have the financial resources to do so.
22
66.
Plaintiff and the members of the Class suffered and will continue to
23
suffer harm as a result of the Defendant’s unlawful and wrongful conduct. A class
24
action is superior to other available methods for the fair and efficient adjudication
25
of the present controversy. Individual joinder of all members of the Class is
26
impracticable. Even if individual Class members had the resources to pursue
27
individual litigation, it would be unduly burdensome to the courts in which the
28
18
Ely v. F. Gaviñia & Sons, Inc.
CLASS ACTION COMPLAINT
Case 3:16-cv-02694-LB Document 1 Filed 05/18/16 Page 19 of 30
1
individual litigation would proceed. Individual litigation magnifies the delay and
2
expense to all parties in the court system of resolving the controversies engendered
3
by Defendant’s course of conduct. The class action device allows a single court to
4
provide the benefits of unitary adjudication, judicial economy, and the fair and
5
efficient handling of all Class members’ claims in a single forum. The conduct of
6
this action as a class action conserves the resources of the parties and of the
7
judicial system and protects the rights of the class members. Furthermore, for
8
many, if not most, a class action is the only feasible mechanism that allows an
9
opportunity for legal redress and justice.
10
67.
Adjudication of individual Class members’ claims with respect to the
11
Defendant would, as a practical matter, be dispositive of the interests of other
12
members not parties to the adjudication, and could substantially impair or impede
13
the ability of other class members to protect their interests.
14
FIRST CAUSE OF ACTION
15
VIOLATION OF CALIFORNIA’S CONSUMERS LEGAL REMEDIES
16
ACT
17
California Civil Code §§ 1750, et seq.
18
(On Behalf of Plaintiff and the Class, as Against Defendant)
19
20
21
68.
Plaintiff repeats, realleges and incorporates by reference each and
every allegation contained above as if fully set forth herein.
69.
This cause of action is brought pursuant to the Consumers Legal
22
Remedies Act, California Civil Code § 1750, et seq. (the “Act”). Plaintiff and the
23
members of the Class are consumers as defined by California Civil Code §
24
1761(d). The Products are goods within the meaning of the Act.
25
26
70.
Defendant violated and continue to violate the Act by engaging in the
following practices proscribed by California Civil Code §1770(a) in transactions
27
28
19
Ely v. F. Gaviñia & Sons, Inc.
CLASS ACTION COMPLAINT
Case 3:16-cv-02694-LB Document 1 Filed 05/18/16 Page 20 of 30
1
with Plaintiff and the Class which were intended to result in, and did result in, the
2
sale of the Products:
3

Representing that [the Products have]…characteristics, ingredients,
4
uses, benefits or quantities which [the Products] do not have. (Civ. Code, § 1770,
5
subd. (a) (5).)
6

7
8
9
10
11
12
Representing that [the Products] are of a particular standard, quality or
grade… if they are of another. (Civ. Code, § 1770, subd. (a) (7).)

Advertising [Products] …with intent not to sell them as advertised.
(Civ. Code, § 1770, subd. (a) (9).)

Representing that [the Products] have been supplied in accordance
with a previous representation when it has not. (Civ. Code, § 1770, subd. (a) (16).)
71.
Defendant violated the Act by representing through advertising of the
13
Products as described above, when they knew, or should have known, that the
14
representations and advertisements were false or misleading.
15
16
17
72.
Plaintiff and members of the Class reasonably relied upon the
Defendant’s representations as to the quality and attributes of the Products.
73.
Plaintiff and other members of the Class were deceived by
18
Defendant’s representations about the quality and attributes of the Products,
19
including but not limited to the purported ingredients in the Products, taken as a
20
whole. Plaintiff and other Class members would not have purchased the Products,
21
or not paid as much for them had they known the Defendant’s claims were untrue,
22
and had they known the true nature of the Products.
23
74.
Pursuant to section 1782 et seq. of the Act, Plaintiff notified the
24
Defendant in writing by certified mail of the particular violations of § 1770 of the
25
Act as to their Products and demanded the Defendant rectify the problems
26
associated with the actions detailed above and give notice to all affected consumers
27
of its intent to so act. Defendant’s wrongful business practices regarding the
28
20
Ely v. F. Gaviñia & Sons, Inc.
CLASS ACTION COMPLAINT
Case 3:16-cv-02694-LB Document 1 Filed 05/18/16 Page 21 of 30
1
Products constituted, and constitute, a continuing course of conduct in violation of
2
the California’s Consumers Legal Remedies Act since Defendant are still
3
representing that the Products have characteristics, uses, benefits, and abilities
4
which are false and misleading, and have injured Plaintiff and the Class. A copy of
5
Plaintiff's letter is attached as Exhibit 3 hereto.
6
75.
Pursuant to California Civil Code §§ 1780(a), 1782(d), Plaintiff and
7
the Class seek an order of this Court enjoining the Defendant from continuing to
8
engage in unlawful, unfair, or deceptive business practices and any other act
9
prohibited by law.
10
76.
Plaintiff will amend his Complaint to allege damages and other
11
remedies available to him under the CLRA following the expiration of the time
12
period specified under the Act if Defendant does not modify its wrongful acts and
13
practices with respect to their Products.
14
SECOND CAUSE OF ACTION
15
VIOLATION OF CALIFORNIA UNFAIR COMPETITION LAW
16
California Business and Professions Code §§ 17200, et seq.
17
(On Behalf of Plaintiff and the Class, as Against Defendant)
18
19
20
77.
Plaintiff repeats, realleges and incorporates by reference each and
every allegation contained above as if fully set forth herein.
78.
California’s Unfair Competition Law, Business and Professions Code
21
§ 17200 (the “UCL”) prohibits any “unfair, deceptive, untrue or misleading
22
advertising.” For the reasons discussed above, Defendant has engaged in unfair,
23
deceptive, untrue and misleading advertising in violation of the UCL.
24
79.
The UCL also prohibits any “unlawful… business act or practice.”
25
Defendant violated the UCL’s prohibition against engaging in unlawful acts and
26
practices by, inter alia, making the representations and omissions of material facts,
27
as set forth more fully herein, and by violating among others, California Civil Code
28
21
Ely v. F. Gaviñia & Sons, Inc.
CLASS ACTION COMPLAINT
Case 3:16-cv-02694-LB Document 1 Filed 05/18/16 Page 22 of 30
1
§§ 1572, 1573, 1709, 1710, 1711, 1770, California Health and Safety Code §§
2
109875, et seq. (“Sherman Law”), Cal. Bus. & Prof. Code §§ 12601, et seq. (“Fair
3
Packaging and Labeling Act”), California Commercial Code § 2313(1), and the
4
common law. Such conduct is ongoing and continues to this date.
5
80.
Defendant’s conduct is unlawful because it violates 21 C.F.R. §
6
101.22(c) (as incorporated in California under the Sherman Law, which mirrors the
7
federal Food, Drug and Cosmetic Act and all its implementing regulations), which
8
requires all foods containing artificial flavoring to include:
9
A statement of artificial flavoring . . . [which] shall be placed on the food or
10
on its container or wrapper, or on any two or all three of these, as may be
11
necessary to render such a statement likely to be read by the ordinary person
12
under customary conditions of purchase and use of such food.
13
81.
Defendant’s conduct is unlawful because it violates, inter alia, 21
14
C.F.R. § 101.22(c) and 21 C.F.R. § 101.22(i) (as incorporated into California law
15
via the Sherman Law), which requires all food products for which artificial
16
flavoring provides a characterizing flavor to disclose this fact prominently on the
17
product’s front label.
18
82.
Defendant further violates the implementing regulation, 21 C.F.R. §
19
1.21 and California law, because the Product’s front label fails to reveal material
20
facts, namely that the Product’s characterizing flavor is created by artificial
21
flavoring, which is false and deceptive under the California Sherman Law and
22
California consumer fraud laws, such as the CLRA.
23
83.
Defendant’ conduct is further unlawful as it violates California food
24
labeling regulations, inter alia, 21 C.F.R. § 102.5 (as incorporated in California via
25
the Sherman Law), because the Products’ labels do not include:
26
a statement of the “presence or absence of any characterizing ingredient(s)
27
or component(s) . . . when the presence or absence of such ingredient(s) or
28
22
Ely v. F. Gaviñia & Sons, Inc.
CLASS ACTION COMPLAINT
Case 3:16-cv-02694-LB Document 1 Filed 05/18/16 Page 23 of 30
1
component(s) in the food has a material bearing on price or consumer
2
acceptance or when the labeling or the appearance of the food may
3
otherwise create an erroneous impression that such ingredient(s) or
4
component(s) is present when it is not, and consumers may otherwise be
5
misled about the presence or absence of the ingredient(s) or component(s) in
6
the food. 21 C.F.R. § 102.5(c).
7
84.
8
9
10
11
Plaintiff and the Class reserve the right to allege other violations of
law which constitute other unlawful business acts or practices.
85.
California Business and Professions Code § 17200 also prohibits any
“unfair… business act or practice.”
86.
Defendant’s acts, omissions, misrepresentations, practices and
12
nondisclosures as alleged herein also constitute “unfair” business acts and practices
13
within the meaning of the UCL in that its conduct is substantially injurious to
14
consumers, offends public policy, and is immoral, unethical, oppressive, and
15
unscrupulous as the gravity of the conduct outweighs any alleged benefits
16
attributable to such conduct. Such conduct is ongoing and continues to this date.
17
87.
Plaintiff alleges violations of consumer protection, unfair competition
18
and truth in advertising laws in California and other states resulting in harm to
19
consumers. Plaintiff asserts violation of the public policy of engaging in false and
20
misleading advertising, unfair competition and deceptive conduct towards
21
consumers. This conduct constitutes violations of the unfair prong of the UCL.
22
Such conduct is ongoing and continues to this date.
23
88.
There were reasonably available alternatives to further Defendant’s
24
legitimate business interests, other than the conduct described herein.
For
25
example, Defendant’s competitors lawfully label their flavored coffees, as
26
discussed herein.
27
89.
The UCL also prohibits any “fraudulent business act or practice.”
28
23
Ely v. F. Gaviñia & Sons, Inc.
CLASS ACTION COMPLAINT
Case 3:16-cv-02694-LB Document 1 Filed 05/18/16 Page 24 of 30
1
90.
Defendant’s claims, nondisclosures (i.e., omissions), and misleading
2
statements, as more fully set forth above, were false, misleading and/or likely to
3
deceive the consuming public within the meaning of the UCL. Such conduct is
4
ongoing and continues to this date.
5
91.
Defendant’s conduct caused and continues to cause substantial injury
6
to Plaintiff and the other members of the Class. Plaintiff has suffered injury in fact
7
as a result of Defendant’s unfair conduct.
8
9
10
11
92.
Defendant has thus engaged in unlawful, unfair and fraudulent
business acts and practices and false advertising, entitling Plaintiff and the Class to
injunctive relief against Defendant, as set forth in the Prayer for Relief.
93.
Pursuant to Business and Professions Code § 17203, Plaintiff and the
12
Class seek an order requiring Defendant to immediately cease such acts of
13
unlawful, unfair and fraudulent business practices and requiring Defendant to
14
engage in a corrective advertising campaign.
15
94.
Plaintiff and the class also seek an order for the disgorgement and
16
restitution of all monies from the sale of Defendant’s Products, which were
17
unjustly acquired through acts of unlawful, unfair, and/or fraudulent competition.
18
THIRD CAUSE OF ACTION
19
VIOLATION OF CALIFORNIA FALSE ADVERTISING LAW
20
California Business and Professions Code §§ 17500, et seq.
21
(On Behalf of Plaintiff and the Class, as Against Defendant)
22
23
24
95.
Plaintiff repeats, realleges and incorporates by reference each and
every allegation contained above as if fully set forth herein.
96.
Plaintiff has standing to pursue this claim as Plaintiff has suffered
25
injury in fact as a result of Defendant’s actions as set forth herein. Specifically,
26
prior to the filing of this action, Plaintiff purchased the Products in reliance upon
27
28
24
Ely v. F. Gaviñia & Sons, Inc.
CLASS ACTION COMPLAINT
Case 3:16-cv-02694-LB Document 1 Filed 05/18/16 Page 25 of 30
1
Defendant’s marketing claims. The Products were not as advertised, nor did they
2
contain the promised benefits and qualities sought.
3
97.
Defendant’s business practices as alleged herein constitute unfair,
4
deceptive, untrue, and misleading advertising pursuant to California Business and
5
Professions Code §§ 17500, et seq. because Defendant has advertised their
6
Products in a manner that is untrue or misleading, or that is known to Defendant to
7
be untrue or misleading.
8
9
10
98.
Defendant’s wrongful business practices have caused injury to
Plaintiff and the Class.
99.
Pursuant to section 17535 of the California Business and Professions
11
Code, Plaintiff and the Class seek an order of this court enjoining the Defendant
12
from continuing to engage in deceptive business practices, false advertising, and
13
any other act prohibited by law, including those set forth in the complaint.
14
100. Plaintiff and the Class also seek an order for the disgorgement and
15
restitution of all monies from the sale of Defendant’s Products, which were
16
unjustly acquired through acts of unlawful, unfair, deceptive and/or fraudulent
17
competition.
18
FOURTH CAUSE OF ACTION
19
BREACH OF EXPRESS WARRANTY
20
(On Behalf of Plaintiff and all Class Members, as Against Defendant)
21
22
101. Plaintiff repeats, realleges and incorporates by reference each and
every allegation contained above as if fully set forth herein.
23
102. On the Products’ labels and through their marketing campaign as
24
described above, Defendant made affirmations of fact or promises, or description
25
of goods, which formed “part of the basis of the bargain” at the time of purchase.
26
See, e.g., Ex. 1.
27
28
25
Ely v. F. Gaviñia & Sons, Inc.
CLASS ACTION COMPLAINT
Case 3:16-cv-02694-LB Document 1 Filed 05/18/16 Page 26 of 30
1
103. Specifically as to the Vanilla Nut and Cinnamon Hazelnut Products,
2
Defendant warranteed that the Products contained “VANILLA NUT,” and
3
“CINNAMON HAZELNUT,” and also represented the Products were created
4
through “the sweet zest of cinnamon sticks and smooth aroma of hazelnuts,”
5
“tantalizing aromas of creamy vanilla & freshly roasted nuts,” “Lively Flavors:
6
Don Francisco’s has discovered a way to balance the taste of freshly-roasted coffee
7
with the bouquet of lively flavorings, you’ll discover that the appetizing aromas of
8
roasted nuts, zesty cinnamon, butterscotch or creamy vanilla will bring your coffee
9
experience to new heights of satisfaction,” all of which led Plaintiff and the Class
10
to believe the Products contained natural flavors to evoke such advertising claims.
11
104. In addition, Defendant warranteed and represented to the Plaintiff and
12
the Class that the Vanilla Nut and Cinnamon Hazelnut Products possessed certain
13
natural characteristics, quality and benefits through the use of large photographs of
14
a vanilla bean pod, vanilla bean flower, photographs of cinnamon sticks and actual
15
hazelnuts superimposed behind the front of pack labeling representations, to
16
suggest to the consumer that these were superior Products with these premium,
17
natural ingredients.
18
105. The warranties were breached because the Products did not live up to
19
their warranties, and that breach caused injury in the form of the lost purchase
20
price for the Products. See Cal. Com. Code § 2313(1); see also Zwart v. Hewlett-
21
Packard Co., 2011 WL 3740805 (N.D. Cal., Aug. 23, 2011) (holding that online
22
assertions can create warranties).
23
106. As a result of Defendant’s breach of their warranties, Plaintiff and the
24
Class have been damaged in the amount of the purchase price of the Products they
25
purchased.
26
27
28
26
Ely v. F. Gaviñia & Sons, Inc.
CLASS ACTION COMPLAINT
Case 3:16-cv-02694-LB Document 1 Filed 05/18/16 Page 27 of 30
1
FIFTH CAUSE OF ACTION
2
BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY
3
(On Behalf of Plaintiff and the Class, as Against Defendant)
4
5
107. Plaintiff repeats, realleges and incorporates by reference each and
every allegation contained above as if fully set forth herein.
6
108. Defendant, through their acts and omissions as set forth herein, in
7
their sale, marketing and promotion of their Products, made representations to
8
Plaintiff and the members of the Class that their Products provided the represented
9
benefits and qualities as described herein.
10
11
109. Plaintiff and the Class bought the Products manufactured, advertised
and sold by Defendant.
12
110. Defendant is a merchant with respect to the goods of this kind which
13
were sold to Plaintiff and the Class, and there was in the sale to Plaintiff and other
14
members of the Class an implied warranty that those goods were merchantable.
15
111. However, Defendant breached that warranty implied in the sale of
16
goods in that their Products do not provide the purported benefits and qualities, as
17
set forth in detail herein.
18
112. As a result of Defendant’s conduct, Plaintiff and the Class did not
19
receive goods as impliedly warranted by Defendant to be merchantable in that they
20
did not conform to the promises and affirmations made on the container or label of
21
the goods.
22
23
113. Plaintiff and the Class have sustained damages as a proximate result
of the foregoing breach of implied warranty in an amount to be determined at trial.
24
SIXTH CAUSE OF ACTION
25
VIOLATION OF THE MAGNUSON-MOSS WARRANTY ACT,
26
15 U.S.C. §§ 2301, et. seq.
27
(On Behalf of Plaintiff and the Class, as Against Defendant)
28
27
Ely v. F. Gaviñia & Sons, Inc.
CLASS ACTION COMPLAINT
Case 3:16-cv-02694-LB Document 1 Filed 05/18/16 Page 28 of 30
1
2
114. Plaintiff repeats, realleges and incorporates by reference each and
every allegation contained above as if fully set forth herein.
3
115. Plaintiff brings this claim individually and on behalf of the members
4
of the Class. Plaintiff asserts state law warranty claims arising under the laws of
5
the State of California.
6
7
8
9
10
11
116. In addition, Defendant’s Products are consumer products as defined in
15 U.S.C. § 2301(1).
117. Plaintiff and the other Class members are consumers as defined in 15
U.S.C. § 2301(3).
118. Defendant is a supplier and warrantor as defined in 15 U.S.C. §§
2301(4) and (5).
12
119. In connection with the sale of the Products, Defendant issued written
13
warranties as defined in 15 U.S.C. § 2301(6), which warranted that the Products
14
possessed certain attributes and qualities, as described herein, when in fact, these
15
Products did not possess said attributes, benefits, and qualities.
16
120. By breaching the express written warranties as described herein,
17
Defendant violated the statutory rights of Plaintiff and Class members pursuant to
18
the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301 et seq., thereby damaging
19
Plaintiff and other Class members.
20
21
121. Plaintiff notified the Defendant in writing of their claims and that the
Plaintiff is acting on behalf of the Classes. See Ex. 3.
PRAYER FOR RELIEF
22
23
122. Wherefore, Plaintiff, on behalf of himself, all others similarly situated
24
and the general public, pray for judgment against the Defendant as to each and
25
every cause of action, including:
26
27
A.
An order declaring this action to be a proper Class Action and
requiring Defendant to bear the costs of Class notice;
28
28
Ely v. F. Gaviñia & Sons, Inc.
CLASS ACTION COMPLAINT
Case 3:16-cv-02694-LB Document 1 Filed 05/18/16 Page 29 of 30
1
B.
An order awarding declaratory and injunctive relief as permitted
2
by law or equity, including enjoining Defendant from continuing
3
the unlawful practices as set forth herein;
4
C.
An order awarding restitution and disgorgement of Defendant’s
5
revenues from the Products to Plaintiff and the proposed Class
6
members, under the UCL and FAL;
7
D.
Warranty claims for relief;
8
9
An order awarding damages under Plaintiff and the Class’
E.
An order compelling Defendant to engage in a corrective
10
advertising campaign to inform the public concerning the true
11
nature of their Products;
12
F.
An order awarding attorneys’ fees and costs to Plaintiff and the
Class;
13
14
G.
An order providing for all other such equitable relief as may be
15
just and proper.
JURY DEMAND
16
17
Plaintiff hereby demands a trial by jury on all issues so triable.
18
19
20
21
22
23
24
25
Dated:
May 18, 2016
/s/ Ronald A. Marron
By: Ronald A. Marron
LAW OFFICES OF RONALD A.
MARRON, APLC
RONALD A. MARRON
SKYE RESENDES
651 Arroyo Drive
San Diego, California 92103
Telephone: (619) 696-9006
Facsimile: (619) 564-6665
26
27
28
29
Ely v. F. Gaviñia & Sons, Inc.
CLASS ACTION COMPLAINT
Case 3:16-cv-02694-LB Document 1 Filed 05/18/16 Page 30 of 30
1
2
3
LAW OFFICE OF DAVID ELLIOT
DAVID ELLIOT (SBN 270381)
elliot.david@hotmail.com
2028 3rd Avenue
San Diego, CA 92101
Telephone: (858) 228-7997
4
5
6
Attorneys for Plaintiff and the Proposed
Class
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
30
Ely v. F. Gaviñia & Sons, Inc.
CLASS ACTION COMPLAINT
Case 3:16-cv-02694-LB Document 1-1 Filed 05/18/16 Page 1 of 9
EXHIBIT 1
Case 3:16-cv-02694-LB Document 1-1 Filed 05/18/16 Page 2 of 9
Case 3:16-cv-02694-LB Document 1-1 Filed 05/18/16 Page 3 of 9
Case 3:16-cv-02694-LB Document 1-1 Filed 05/18/16 Page 4 of 9
Case 3:16-cv-02694-LB Document 1-1 Filed 05/18/16 Page 5 of 9
Case 3:16-cv-02694-LB Document 1-1 Filed 05/18/16 Page 6 of 9
Case 3:16-cv-02694-LB Document 1-1 Filed 05/18/16 Page 7 of 9
Case 3:16-cv-02694-LB Document 1-1 Filed 05/18/16 Page 8 of 9
Case 3:16-cv-02694-LB Document 1-1 Filed 05/18/16 Page 9 of 9
Case 3:16-cv-02694-LB Document 1-2 Filed 05/18/16 Page 1 of 3
EXHIBIT 2
Cinnamon Hazelnut
Case 3:16-cv-02694-LB Document 1-2 Filed 05/18/16 Page 2 of 3
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Cinnamon Hazelnut
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Butterscotch
Cinnamon Hazelnut 12 oz. can
Caramel Cream
Chocolate
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Like a spicy dessert. The fragance of cinnamon lends zest to the nuttiness of
hazelnut.
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CIN12
Cinnamon Hazelnut 12 oz. can
$7.99
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CIH5
Cinnamon Hazelnut 5 lbs.
$46.45
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REVIEWS
Review this coffee
Product Rating: Date Posted: 2011-05-04 11:45:54
satisfied customer
Posted By: Pam
Location: Georgetown, IN United States
Comments:
This is the best coffee that I have ever had. I don't usually like flavored coffee but my husband wanted to try it and I
was really surprised. We have used the whole bag!!!
Product Rating: Date Posted: 2011-09-14 22:56:33
Cinnamon Hazelnut
Posted By: maureen smith
Location: Colton, CA United States
Comments:
I use to buy it at Stater Bros. I can't find it anywhere anymore.
Product Rating: Date Posted: 2012-02-25 21:22:18
I love coffee
Posted By: Lynn Sylvester
Location: Opelika, AL United States
Comments:
Cinnamon Hazelnut is the best!!
Product Rating: Date Posted: 2012-06-17 14:44:30
HAZELNUT COFFEE
Posted By: SUZANNE SERRA
Location: KEARNY, NJ United States
Comments:
THIS IS THE BEST COFFEE I HAVE EVER EXPERIENCED
http://www.shopdonfrancisco.com/prod_detail_list/cinnamon-hazelnut[4/11/2016 1:02:15 PM]
Cinnamon Hazelnut
Case 3:16-cv-02694-LB Document 1-2 Filed 05/18/16 Page 3 of 3
Product Rating: Date Posted: 2012-10-02 14:58:14
Great Tasting Flavored Coffee
Posted By: Dan McGinn
Location: Raleigh, NC United States
Comments:
This is my family's favorite coffee. The Cinnamon Hazelnut blend has a great smooth, crisp taste with a fantastic
aroma. No need for a flavored creamer. It's the coffee we try to save for guests but find we can't help ourselves. I only
wish Dan Francisco would make K-Cups of its great coffee. Thanks!
Product Rating: Date Posted: 2013-08-14 22:55:04
FAVORITE
Posted By: Brittany
Location: mesa, AZ United States
Comments:
BEST coffee I have ever had!!! I do not start my day without it!
Product Rating: Date Posted: 2014-01-08 21:06:52
The best!
Posted By: Joe Martinez
Location: Tallahassee, FL United States
Comments:
Bought a can at my local Publix and absolutely loved it. When I ran out I went back for more only to find the
Cinnamon Hazelnut is no longer stocked. Couldn't find it at Walmart either.
Product Rating: Date Posted: 2014-02-01 15:04:00
My FAVORITE Coffee!!
Posted By: Marianne Branch
Location: Owasso, OK United States
Comments:
I love this coffee!!! Can't buy it here in Oklahoma so I have family members in California sending it to me. Glad I
found the website. I will be ordering from now on!
Product Rating: Date Posted: 2015-04-01 14:01:38
Cinnamon Hazelnut Fan
Posted By: Debra
Location: Houston, TX United States
Comments:
Best coffee ever!! My Randalls store used to sell it but no more!! They only have plain hazelnut. Where can I get
more cinnamon hazelnut??
Product Rating: Date Posted: 2015-11-05 11:32:30
Our favorite
Posted By: Emily
Location: Lake Balboa, CA United States
Comments:
This is our favorite coffee. I only wish they would make this one in the K Cups. It would be even better then!!
ROASTING CHART
MEDIUM - Medium Roast is
the lightest of our offerings,
and is roasted to allow the
coffee’s spicy flavors and
aromas to fully develop.
©2016 Don Francisco's Coffee Terms of Use | Return Policy | Shipping Information | Promotion Sign-up Store Locator | DonFranciscos.com
http://www.shopdonfrancisco.com/prod_detail_list/cinnamon-hazelnut[4/11/2016 1:02:15 PM]
MEDIUM BOLD - Our
Medium Bold Roast coffee
is roasted to give the
coffee a sweet, smoky
taste.
BOLD - Bold Roast is our
darkest coffee, and is
roasted to let the coffee’s
natural sugars to
caramelize to deliver
smoky, caramely, dark
chocolaty flavors.
Contact Us: 1-800-697-JAVA
(5282)
Traders@Don-Francisco.com
Case 3:16-cv-02694-LB Document 1-3 Filed 05/18/16 Page 1 of 8
EXHIBIT 3
Case 3:16-cv-02694-LB Document 1-3 Filed 05/18/16 Page 2 of 8
L AW O FFICES
OF
RONALD A. MARRON
A P RO FESS IONAL L AW C ORPORATION
651 Arroyo Drive
San Diego, California 92103
Tel: 619.696.9006
Fax: 619.564.6665
April 27, 2016
Via: Certified Mail, (receipt acknowledgment with signature requested)
F. Gaviñia & Sons, Inc.
2700 Fruitland Ave.
Vernon, CA 90058
RE:
NOTICE OF Breach of Warranties, Violations of Consumer Protection Laws,
and Duty to Preserve Evidence
Dear Sir or Madam,
PLEASE TAKE NOTICE that this letter constitutes notice under the Magnuson Moss Warranty
Act, 15 U.S.C. §§ 2301, et seq. (“MMWA”), notifying F. Gaviñia & Sons, Inc. (“YOU” and “YOUR”)
of violations of the California Consumer Legal Remedies Act (Cal. Civ. Code § 1750, et seq., “CLRA”)
and similar state consumer protection laws in other states, plus the Magnuson-Moss Warranty Act
(“MMWA”), and of our demand that YOU remedy such violations within thirty (30) days of your receipt
of this letter.
This firm represents Mr. Taylor Ely. Mr. Ely purchased YOUR Don Francisco Cinammon Hazelnut
and Don Francisco Vanilla Nut brands of flavored ground coffee multiple times over the past 4 years.
Mr. Ely purchased the Products for personal and family use, primarily at a Big Johns Market in
Healdsburg, California.
These Products’ front labels describe the Products’ characterizing flavors, in the above cases for
example, as “Vanilla,” “Vanilla Nut,” “Cinammon,” and “Hazelnut” as if these were entirely naturallyflavored coffees. YOU also market other flavors of Don Francisco ground coffees (such as Hawaiian
Hazelnut, French Caramel, Hazelnut Cream, Macadamia Nut, Vienna Cinnamon, Chocolate, Chocolate
Raspberry, L’Orange, Butterscotch, Coconut ream, and Caramel Cream) in a similar manner, through the
use of partial or fully artificially flavored food additives, the artificial nature of which is not fully and
adequately disclosed on the front of the packaging (the “Products”).
Case 3:16-cv-02694-LB Document 1-3 Filed 05/18/16 Page 3 of 8
Demand Letter
Page 2
The Products, however, are not exclusively naturally-flavored as suggested by the Products’ labels.
Each Product’s ingredient list discloses that it is instead flavored with compounds identified as “artificial
flavor.” These Products in fact owe their characterizing flavors to Defendant’s use of artificial flavors,
and the Products’ front labels and principal display panels fail to accurately or lawfully disclose this
critical fact to consumers. The Products are therefore deceptively advertised, labeled, and marketed.
Mr. Ely purchased the Products in reliance on that deceptive advertising and labeling. Mr. Ely was
exposed to and saw YOUR claims about the Product, purchased the Product in reliance on those claims,
and suffered injury in fact as a result of YOUR false and misleading advertising. A reasonable consumer
would rely on the deceptive claims made in YOUR advertisements and packaging and through the
exercise of reasonable diligence would not have discovered the violations alleged herein.
YOUR material misrepresentations are deceiving customers into purchasing YOUR Product under
the representation that the Products are entirely naturally-flavored when in fact they are not. This letter
therefore serves to notify you that the Product’s packaging claims created express and implied warranties
under the Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq. and state law, which the Products
breached. Those warranties formed part of the benefit of the bargain and when the Product was not as
warranted by YOU, Mr. Ely and all others similarly situated suffered economic loss.
YOU have further failed to honor your consumer protection obligations under state law. The
federal Food, Drug and Cosmetic Act (“FDCA”), which is adopted in all relevant parts by the State of
California, prohibits the marketing and sale of the Products without full and adequate front-of-pack
disclosure that the characterizing flavor(s) are derived, in whole or part, from artificial flavor(s). See 21
C.F.R.§§ 101.22(c), (i); Cal. Health & Safety Code §§ 110085, 110100, 110290, 110295, 110660, et seq.
A reasonable consumer would have relied on the deceptive and false claims made in YOUR advertisements
and through the exercise of reasonable diligence would not have discovered the violations alleged herein because
YOU actively and purposefully concealed the truth regarding YOUR Products.
YOUR material
misrepresentations are deceiving customers into purchasing YOUR Products, at a higher cost, under the
representation that the Products bear the ingredients depicted through words and pictures on the front of
the Products’ coffee packaging. But, YOU are able to flavor coffee of a lesser quality, with artificial
ingredients that are cheaper to source, thus depriving Mr. Ely and substantially similar consumers of the
benefit of the bargain and the complete truth as required under the consumer fraud laws of this state and
other states in the United States.
Please be advised that the alleged unfair methods of competition or unfair or deceptive acts or
practices in violation of the CLRA include, but are not necessarily limited to:
Case 3:16-cv-02694-LB Document 1-3 Filed 05/18/16 Page 4 of 8
Demand Letter
Page 3
§ 1770(a)(5): representing that goods have characteristics, uses, or benefits which they do not
have.
§ 1770(a)(7): representing that goods are of a particular standard, quality, or grade if they are of
another.
§ 1770(a)(9): advertising goods with intent not to sell them as advertised.
§ 1770(a)(16): representing the subject of a transaction has been supplied in accordance with a
previous representation when it has not.
YOU have failed to honor your consumer protection obligations. Based upon the above, demand is
hereby made that YOU conduct a corrective advertising campaign and destroy all misleading and
deceptive advertising materials and products.
Please be advised that your failure to comply with this request within thirty (30) days may subject
you to the following remedies, available for violations of the CLRA, which will be requested in the class
action complaint on behalf of our client, Mr. Ely, all other similarly-situated U.S. residents and the
general public:
(1) The actual damages suffered;
(2) An order enjoining you for such methods, acts or practices;
(3) Restitution of property (when applicable);
(4) Punitive damages;
(5) Any other relief which the court deems proper; and
(6) Court costs and attorneys' fees.
Under state consumer protection laws that do not require advance notice of intent to sue, you
may already be liable for any or all of these remedies. In addition, California Civil Code Section 1780
(b) provides in part that: “Any consumer who is a senior citizen or a disabled person, as defined in
subdivision (f) and (g) of Section 1761, as part of an action under subdivision (a), may seek and be
awarded, in addition to the remedied specified therein, up to five thousand dollars ($5,000)…
[emphasis added]”.
Additionally, I remind you of your legal duty to preserve all records relevant to such litigation.
See, e.g., Convolve, Inc. v. Compaq Computer Corp., 223 F.R.D 162, 175 (S.D.N.Y 2004); Computer
Ass’n Int’l v. American Fundware, Inc., 133 F.R.D. 166, 168-69 (D. Colo. 1990). This firm anticipates
that all e-mails, letters, reports, internal corporate instant messages, and laboratory records that related to
the formulation and marketing of YOUR products will be sought in the forthcoming discovery process.
You therefore must inform any employees, contractors, and third-party agents (for example product
consultants and advertising agencies handling your product account) to preserve all such relevant
information.
Case 3:16-cv-02694-LB Document 1-3 Filed 05/18/16 Page 5 of 8
Demand Letter
Page 4
Additionally, I remind YOU of YOUR legal duty to preserve all records relevant to such litigation.
See, e.g., Convolve, Inc. v. Compaq Computer Corp., 223 F.R.D 162, 175 (S.D.N.Y 2004); Computer
Ass’n Int’l v. American Fundware, Inc., 133 F.R.D. 166, 168-69 (D. Colo. 1990). This firm anticipates
that all e-mails, letters, reports, internal corporate instant messages, and laboratory records that related
to the formulation and marketing of YOUR products will be sought in the forthcoming discovery
process. You therefore must inform any employees, contractors, and third-party agents (for example
product consultants and advertising agencies handling your product account) to preserve all such
relevant information.
I look forward to YOUR response and to being informed that YOU have initiated corrective action.
Thank you for your time and consideration in this matter.
Sincerely,
THE LAW OFFICES OF RONALD A. MARRON APLC
/s/ Ronald A. Marron
Ronald A. Marron
Attorney for Mr. Taylor Ely, all others similarly situated,
and the general public
Case 3:16-cv-02694-LB Document 1-3 Filed 05/18/16 Page 6 of 8
Cl
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U.S. Postal ServiceTM
CERTIFIED MAIL® RECEIPT
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PS Form 3800, April 2015 PSN 7530-02-000-9047
See Reverse tor Instructions
SENDER:
COMPLETE THIS SECTIONDocument
Case 3:16-cv-02694-LB
1-3 Filed 05/18/16 Page 7 of 8
• Complete items 1, 2, and 3.
• Print your name and address on the reverse
so that we can return the card to you.
• Attach this carer to the back of the mailpiece,
or on the front if
F. Gavifiia & Sons, Inc.
2700 Fruitland Ave.
Vernon, CA 90058
1111111111111 1111 II Ill 1111111111
PS Form
IIIII 111111111
3811, July 2015 PSN 7530-02-000-9053
Domestic Return Receipt
I
Case 3:16-cv-02694-LB Document 1-3 Filed 05/18/16
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• Sender: Please print your name, address, and ZIP+4«> in this box•
Law Offices of Ronald A. Marr8n
651 Arroyo Drive
San Diego, CA 92103
1111 11 1J•I IIJoJIIJJ JJlllol IIIJtliiiJI IIJollJJJ•I IloJitltJ•ti1111J
Case 3:16-cv-02694-LB Document 1-4 Filed 05/18/16 Page 1 of 2
CIVIL COVER SHEET
JS 44 (Rev 12112) cand rev (l/15/13)
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM)
l. (a) PLAINTIFFS
DEFENDANTS
F. Gavina & Sons, Inc.
Taylor Ely
,.
S,o,_n,o'-'m
-,_,.
a_ _______
(b) County of Residence of First Listed Plaintiff
County of Residence of First Listed Defendant
(IN U.S. PLAINTIFF CASES ONLY}
(EXCEPT IN U.S. PLAINTIFF CASES)
NOTE:
(c) Attorneys {Firm Name, A ddress, and Telephone Number)
IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED
Attorneys (If Known)
Ronald A. Marron
Law Offices of Ronald A. Marron
651 Arroyo Drive, San Diego , CA 92103 (619) 696-9006
II. BASIS OF JURISDICTION (Place an "X"inOneBoxOnlyJ
0 I
0 2
U.S. Government
Plaintiff
0 3
U.S Government
Defendant
l!ll 4 Diversity
0
0
0
0
0
Insurance
Marine
Miller Act
Negotiable Instrument
Recovery of Overpayment
& Enforcement of Judgment
lSI Medicare Act
152 Recovery of Defaulted
Srudent Loans
(Excludes Veterans)
153 Recovery of Overpayment
ofVeteran's Benefits
160 Stockholders' Suits
190 Other Contract
195 Contract Product Liability
196 Franchise
R EAL PROPERTY
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Othe1· Real Prope11y
0
0
0
0
0
0
0
0
0
l
0 2
0
2
Incorporated and Principal Place
of Business Tn Another State
0
5
0 5
Citizen or Subject of a
Ford 1 Counuv
0 3
0
3
Foreign Nation
0
6
0 6
"X" in One Box Only)
PERSONAL INJURY
310 Ajrplane
315 Ajrplane Product
Liability
320 Assault, Libel &
Slander
330 Federal Employers'
Liability
340 Marine
345 Marine Product
Liability
350 Motor Vehicle
355 Motor Vehicle
Product Liability
360 Other Personal
Injury
362 Personal lnjwyMedical Malpractice
F .R F£t'FUREIPENALTV
PERSONAL INJURY
0 365 Personal Injury Product Liability
0 367 Health Care/
Phannaceutical
Personal Injury
Product Liability
0 368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
~ 370 Other Fraud
0 371 Truth in Lending
0 380 Other Personal
Property Damage
0 385 Property Damage
Product Liability
CIVIL RIGHTS
0
0
0
0
0
0
0
V. 0 RIG IN
0
"X" in One Box for Plaintiff
and One Box for Defendant)
PTF
DEF
Incorporated or Principal Place
0 4
IX 4
of Business In This State
Citizen of Another State
TEJarrs
II 0
120
130
140
150
0
0
0
0
0
0
0
DEF
(Indicate Citizenship of Parties in Item lll}
C O NTilAC::
0
0
(For Diversity Cases Only)
PTF
Citizen of This State
IX l
Federal Question
(US. Government Not a Party)
IV NATURE OF SUIT (!'lac~ an
0
0
0
0
0
III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an
PRISO NER P E'FITlO NS
440 Other Civil Rights
Habeas Corpus:
441 Voting
0 463 Alien Detainee
442 Employment
0 510 Motions to Vacate
443 Housing/
Sentence
Accommodations
0 530 General
445 Amer. w/Disabilities- 0 535 Death Penalty
Other:
Employment
446 Amer. w/Disabilities- 0 540 Mandrunus & Other
Other
0 550 Civil Rights
448 Education
0 555 Prison Condition
0 560 Civil DetaineeConditions of
Confinement
BANKRUPTCY
0 625 Drug Related Seizure
0 422 Appeal 28 USC 158
0 423 Withdrawal
of Property 21 USC 881
0 690 Other
28
usc
157
PROl!~TY
RIGII'I'S
0 820 Copyrights
0 830 Patent
0 840 Trademark
0
0
0
0
0
0
A BOR
710 Fair Labor Standards
Act
720 Labor/Management
Relations
740 Railway Labor Act
751 Family and Medical
Leave Act
790 Other Labor Litigation
791 Employee Retirement
Income Security Act
0
0
0
0
0
SOCIAJ
861 H!A (I 395ft)
862 Black Lung (923)
863 DIWC/DIWW (405(g))
864 SSTD Title XVI
865 RSI (405(g))
FED ERM, TI\X SUITfS
0 870 Taxes (US. Plaintiff
or Defendant)
0 871 IRS-1l1ird Pru1y
26 usc 7609
OTIJER
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
375 False Claims Act
400 State Reapportionment
410 Antitrust
430 Banks and Banking
450 Conunerce
460 Deportation
470 Racketeer Influenced and
Corrupt Organizations
480 Consumer Credit
490 Cable/Sat TV
850 Securities/Commodities/
Exchange
890 Other Statutory Actions
89 t Agricultural Acts
893 Environmental Matters
895 Freedom oflnformation
Act
896 Arbi~·ation
899 Administrative Procedure
AcVReview or Appeal of
Agency Decision
950 Constirutionality of
State Starutes
IMMJGRATION
0 462 Naruralization Application
0 465 Other Immigration
Actions
(Place an "X" in One Box Only)
)!!( I Original
Proceeding
0 2 Removed from
State Court
0
3
Remanded from
Appellate Court
0 4 Reinstated or
Reopened
0 6 Multidistrict
0 5 Transferred from
Another District
(. ct[y)
Litigation
Cite the U.S Civ il Statute under which you are fil ing (Do not cite jurisdictional statutes unless diversity) :
VI. CAUSE OF
Civil Code Sections 1750, CaL Bus. & Prof. Code Sections 17200, 17500 _ _ _ __
ACTION~~=~~=-'-'-~...:::..;:;;~;:;..;;.:...;;.;...;....;..;;.;.;....;:;..:;;..;;;..:;:.....:;;..:;;.;;=.;.:;;....;"'-=;.;;.:....;...;..;;...;;.;;...
_ __ __ __
Brief description of cause :
Violation of California Consumers Legal Remedies Act, Unfair Competition Law, False Advertising
~ CHECK IF THIS IS A CLASS ACTION
VII. REQUESTED IN
UNDER RULE 23, F.R.Cv P
COMPLAINT:
VIII. RELATED CASE(S)
(See instructions) ,'
IF ANY
nJDGE
DATE
DEMAND$
CHECK YES only if demanded in complaint
)!! Yes
0 No
5,000,000.01
JURY DEMAND:
DOCKET NUMBER
SIGNATURE OF ATTORNEY OF RECORD
Is Ronald A. Marron
05/18/2016
IX. DIVISIONAL ASSIGNMENT (Civil L.R. 3-2)
(Place an "X" in One Box Only)
D
SAN FRANCISCO/OAKLAND
- - - --'==='-
DAN JOSE
D
EUREKA
Case 3:16-cv-02694-LB Document 1-4 Filed 05/18/16 Page 2 of 2
JS 44 Reverse (Rev 12/ 12)
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the infonnation contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This fonn, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the fonn as follows:
I.(a)
(b)
(c)
Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract ofland involved.)
Attorneys. Enter the finn name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".
II.
Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (I) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U .S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box l or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
Ill.
Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
IV.
Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be detennined, be sure the cause of action, in Section VI below, is
sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to detennine the nature of suit. If the cause fits more than
one nature of suit, select the most defmitive.
V.
Origin. Place an "X" in one of the six boxes.
Original Proceedings. (l) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action . Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S .C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C . Section 1407.
When this box is checked, do not check (5) above.
VI.
Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 4 7 USC 553 Brief Description: Unauthorized reception of cable service
VII.
Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII.
Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.
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