BRADLEY GROMBACHIER, LLP

BRADLEY GROMBACHIER, LLP MarcusJ. Bradley, Esq. (SBN 174156)

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Kiley L. Grombacher, Esq. (SBN 245960) Taylor L. Emerson, Esq. (SBN 225303) 2815 Townsgate Road, Suite 130 Westlake Village, California 91361

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Telephone: (805) 212-5124 Facsimile: (805) 270-7589

5 mbradleybradleygrombacher.com kgrombacherbradIeygrornbac1ier. corn

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Attorneys for Plaintiff

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EMMA BRENNER, individually and on behalf of all others similarly situated,

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14 Plaintiff,

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KEVITA, INC., a California company; PEPISCO, fNC. a North Carolina company.;

17 and DOES 1 through 10, inclusive,

18 Defendants.

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VENTURA SL9EfllO? COURT

CU Cfl

OCT 042017

MiCHAEL C. PLANET ExecutIve Ofticer and Clerk

BY: Deputy

ALBERT VILLEGAS JR.

CASE NO. 56-2017-00502340-CU-FR-VTA

CLASS ACTION COMPLAINT FOR:

I. FALSE AND MISLEADING ADVERTISING IN VIOLATION OF BUSINESS AND PROFESSIONS CODE §17200, et seq. FALSE AND MISLEADING ADVERTISING IN VIOLATION OF BUSINESS AND PROFESSIONS CODE § 17500, at seq. VIOLATION OF CALIFORNIA CIVIL CODE § 1750. etseq. UNJUST ENRICHMENT BREACH OF EXPRESS WARRANTY BREACH OF IMPLIED WARRANTY VIOLATION OF CONSUMER FRAUD LAWS NEGLIGENT MISREPRESENTATION

JURY TRIAL DEMANDED

SUPERIOR COURT FOR THE STATE OF CALIFORNIA

COUNTY OF VENTURA

-1- Action Complaint

Case No.

Plaintiff Emma Brenner ("Plaintiff') alleges the following based upon personal

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knowledge as to herself and her own acts, and upon information and belief and the investigation

3 by Plaintiffs counsel which included, among other things, a review of public documents,

4 marketing materials, and announcements made by KeVita Inc. and Pepsico Inc. ("Defendants"

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or "KeVita") as to all other mailers. Plaintiff believes that substantial additional evidentiary

6 support exists for the allegations set forth herein and will be available after a reasonable

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opportunity for discovery.

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NATURE OF THE ACTION

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I. The recent spike in popular awareness that not all bacteria is evil—and that many

10 are reportedly good and beneficial for human health—has created a fascination with live

11 cultures and fennented products. This idea has brought the centuries-old drink, Kombucha,

12 roaring into upper-middle class consciousness at upwards of $5 per bottle.

'3 2. According to the new Market Research Report "Kombucha Market Research

14 Report By Type (Bacteria, Yeast, Mold, Others), By Flavor (Herbs & Spices, Citrus, Berries,

15 Apple, Coconut & Mangoes, Flowers, Others), By Region - Global Forecasts To 2020", The

16 global kombucha market is estimated to grow from $0.6 billion in 2015 to $1.8 billion by 2020,

at a compoundannualgrowth rate of 25.0% from 2015 to 2020. 17

3. Kombucha is generally derived from a sugar-sweetened tea (black or green) that

18 has been mixed with yeast and bacteria and then given time to ferment. The microbes are

19 together known as a SCOBY (symbiotic colony of bacteria and yeast). The result is an

20 effervescent, tart, and slightly sweet beverage. Depending on the added flavors, kombucha can

21 taste fruity, floral, spicy, or herbaceous. It has a flavor profile similar to sparkling apple cider

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but with a more pronounced sour taste.

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4. It is the fermentation process that truly defines the beverage and the byproduct of

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this process that drives consumer demand. Due to the fermentation process involved in creating

25 kombucha, the resultant beverage contains a large number of healthy bacteria known as

26 probiotics. These bacteria line your digestive tract and have been touted for theft purported

27 ability to increase general health and weilness and to support the immune system, as they absorb

28 nutrients and fight infection and illness.


Case No.

5. Indeed, the KeVita website directly panders to and perpetuate such notions

2 extolling that "[p]robiotics play a crucial role in improving digestive health. They support and

3 enhance the beneficial bacteria that line the gut, and, a healthy gut improves the absorption of

essential nutrients in foods and supplements, contributing to your improved health!" KeVita

underscores this message by advertising, representing and warranting on the label of each of

6 their KeVita Master Brew Kombucha beverages that " ... total health begins at your core" and

that the product is "Energizing to the Core!"

8 6. Such advertisements, representations and warranties are a part of KeVita's

integrated uniform marketing campaign crafted to capitalize on health-conscious consumers' 9

demand for probiotics and functional beverages. KeVita labels each and every one of is KeVita

10 Master Brew Kombucha beverages with the advertisement, representation and warranty that the

products: 12 Are "Fermented

13 • Contain "Kombucha Culture";

14 • Contain the highly prized "Live probiotics" for which kombucha consumers

15 purchase the beverages;

16 • Are "...fermented with our proprietary tea culture, which yields high levels of

17 beneficial organic acids;" and

18 • Are "Crafted with live probiotics."

19 7. These representations, warranties and advertisements however are false and

20 deceptive because all of the KeVita Master Brew Kombucha beverages are pasteurized after

21 fermentation.

22 8. KeVita Kombucha was originally crafted as a raw fermented beverage. Indeed,

23 KeVita went to great lengths to capitalize on its original raw and unpasteurized formulation. As

KeVita CEO and co-founder Bill Moses boasted, "[s]everal kombucha manufacturers utilize 24

pasteurization that kill the live cultures in order to limit alcohol production.. .However, at 25

KeVita, we've devised a proprietary technique that enables us to deliver a delicious, live 26

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-3. Class Action Complaint

Case No.

(

land active raw culture through the end of shelf-life2."

At present, however, and throughout the relevant class period, KeVita shifted

from its original raw and unpasteurized formulation for a manipulated and pasteurized

formulation which permits Defendants to mass produce and distribute the beverages, thereby

increasing the profits derived therefrom. The bacteria killed during the pasteurization process

includes, amongst others, the very probiotics touted on the KeVita website for which consumers

chose to purchase and consume KeVita's Master Brew Kombucha. Such "pasteurized

kombucha" is perhaps more aptly titled "kombucha-flavored tea" because the benefits of

bacteria have been lost during that process. The pasteurization process is never

I disclosed to consumers who would otherwise have no way of knowing, at the point of sale, such

I material information.

Given that pasteurization is antithetical to kombucha and the fermentation

process from which it is derived (and the very culture and processes from which KeVita Master

Brew Kombucha was originally crafted), KeVita goes to great lengths to conceal the

pasteurization process. Although the KeVita Master Brew Kombucha is transported in non-

refrigerated trucks, KeVita purchases shelf space in the refrigerated section of stores ensuring

that the bottles are presented to consumers in the same fashion as it was previously provided

and as other natural process un-pasteurized kombucha beverages. KeVita further perpetuates

the idea that its KeVita Master Brew Kombucha remains unpasteurized by uniformly plastering

warning on each beverage's label, instructing consumers to: "keep refrigerated" as the beverage

is "perishable." Such placement and representation is designed to and does, perpetuate thebelief

KeVita has instilled into reasonable consumers such as Plaintiff that the KeVita Master Brew

Kombucha are produced as originally formulated and in the traditional and un-manipulated

manner utilized by KeVita's competitors.

Additionally, to tap into the small batch nature of historical Kombucha

beverages, and to tether itself to the traditional methods of production consumers desire, KeVita

advertises on each label of the KeVita Master Brew Kombucha that its kombucha beverages are

2 https://www.nutraccuticalsworld.coin/contents/view_oriline-exclusives/2O12-01 -30/fizzy-Iifting-drinksl (emphasis added)

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Class Action Complaint Case No.

I I "handcrafted".

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12. The use of these terms and natural imagery is designed to, and does, induce

3 consumers, such as Plaintiff and the members of the putative classes, into believing that KeVita

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is still the raw unpasteurized product that they expect.

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13. When purchasing the product, Plaintiff relied on Defendants' misrepresentations

I and omissions and believed that the KeVita Master Brew Kombucha was fermented without

7 subsequent pasteurization and contained "beneficial organic acids yielded from the fermentation

8 and "live probiotics" which were derived from that original fermentation and not subsequently

9 added to the product after pasteurization. Plaintiff would not have purchased KeVita Master

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Brew Kombucha and/or would not have paid a premium for this product if she had known that

11 Defendants' representations were false and misleading. Plaintiff suffered an injury by

12 purchasing the KeVita Master Brew Kombucha. Plaintiff did not receive a true kombucha

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beverage, rather, she received a product that was pasteurized after fermentation and manipulated

14 thereafter to mimic the traditional and natural fermentation process.

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14. Defendants' conduct of falsely marketing, advertising, labeling, and selling

16 KeVita as fermented and "live" without disclosing (and in fact actively concealing) the

17 pasteurization constitutes unfair, unlawful, and fraudulent conduct; is likely to deceive members

Is of the public; and is unethical, oppressive, unscrupulous, and/or substantially injurious to

19 consumers, because, among other things, it misrepresents the characteristics of goods and

20 services.

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15. Defendants' conduct of falsely marketing, advertising, labeling, and selling

22 KeVita as fermented and "live" without disclosing (and in fact actively concealing) the

23 pasteurization constitutes unfair, unlawful, and fraudulent conduct; is likely to deceive members

24 of the public; and is unethical, oppressive, unscrupulous, and/or substantially injurious to

25 consumers, because, among other things, it misrepresents the characteristics of goods and

26 services.

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16. As such, Plaintiff seeks relief in this action individually, and on behalf of all I

28 purchasers of KeVita's Master Brew Kombucha Beverages, for Defendants' violations of the

-5- Class Action Complaint

Case No.

I California Consumer Legal Remedies Act ("CLRA"), Civil Code §§ 1750, et seq., Unfair

2 Competition Law ('UCL), Bus. & Prof. Code §§ 17200, et seq., False Advertising Law

3 ('PAL"), Bus. & Prof. Code §§ 17500, et seq., for breach of express and implied warranties,

4 negligent misrepresentation, fraud, and unjust enrichment.

5 JURISDICTION AND VENUE

6 17. Both jurisdiction and venue are proper in this Court. Defendants conduct, or have

7 conducted, a substantial amount of business activity in California. Defendants have sufficient

minimum contacts in California or otherwise intentionally avail themselves of the California

market through, without limitation, their advertisement, promotion, marketing, sales and/or

10 distribution of KeVita in the State of California and the County of Ventura and other business

11 activities, so as to render the exercise of jurisdiction over the Defendants by the California

12 courts consistent with traditional notions of fair play and substantial justice. Additionally,

13 Defendant KeVita inc., is a California company headquartered in Ventura County.

18. Venue is proper in this Court because Defendant KeVita Inc. is headquartered in 14

this Ventura County and Defendants regularly conduct business in Ventura County, because

15 Plaintiff lives in Ventura County, and because the conduct alleged herein which gives rise to the

16 claims asserted occurred within Ventura County. Specifically, Plaintiff purchased the subject

17 product at stores in Ventura County.

18 19. Defendants have distributed, marketed, advertised, labeled, and sold KeVita

19 which is the subject of the present Complaint, in this District. Thus, under California Code of

20 Civil Procedure §395, Defendants are deemed to reside in this District. As such, venue is proper

21 in this judicial district under California Code of Civil Procedure §395, because Defendants are

22 deemed to reside in this District and under California Code of Civil Procedure §395, because

23 Defendants conduct business in this District and a substantial part of the acts or omissions

24 giving rise to the claims set forth herein occurred in this District.

25 PARTIES

26 20. Plaintiff is a citizen of California and an individual consumer. During the Class

27 Period, Plaintiff purchased the KeVita Master Brew Kombucha at a grocery stores in Agoura

28 Hills, Westlake Village and Chico California. In the last year, Plaintiff spent approximately


Case No.

I sixty dollars ($60) purchasing the KeVita Master Brew Kombucha for her personal

2 consumption. Additionally, at her request, Plaintiff caused her family to purchase 8-10 bottles

3 of the KeVita Master Brew Kombucha per month. On or about September 12, 2017, Plaintiff

4 received an email confirmation from KeVita Consumer Relations confirming that the KeVita

5 Master Brew Kombucha beverages were pasteurized.

6 21. Prior to purchasing the KeVita Master Brew Kombucha, Plaintiff read and relied

7 upon false and misleading statements that were prepared by and/or approved by Defendants and

8 their agents and disseminated through the KeVita Master Brew Kombucha packaging. For each

9 purchase, she understood that she was paying for a fermented and live kombucha beverage with

10 probiotics and beneficial organic acids yielded from the natural fermentation process and was

11 deceived when she received a product that was pasteurized and manipulated post-fermentation.

12 22. Defendant KeVita Inc. is a California Company headquartered in Oxnard,

13 California. During the Class Period, KeVita Inc. was acquired by PepsiCo Inc., in or around

14 Novemberof20l6.

15 23. Defendant PepsiCo Inc. is an American multinational multi-national food, snack,

16 and beverage corporation headquartered in Purchase, New York.

17 24. The use of the term "defendantst' or "Defendants" in any of the allegations in this

18 Complaint, unless specifically alleged otherwise, is intended to include and charge, both jointly

19 and severally, not only the Defendants identified in this Complaint, but also all Defendants

20 designated as DOES I through 10, inclusive, as though the term "Defendants" was followed in

21 each and every instance throughout this Complaint with the phrase "and each of them jointly

22 and severally, including all named Defendants and Defendants included herein and sued under

23 the fictitious names of DOES I through 10, inclusive."

24 25. Plaintiff is informed and believes, and thereon alleges, that Defendants, at all

25 times herein mentioned, were the partners, joint venturers, subsidiaries, successors in interest,

26 managing agent, merged entities, agents, alter egos, part of a jointly owned, managed, and/or

27 operated business enterprise, and/or employees of each other Defendant and in doing the acts,

28 omissions, and things alleged herein were acting as such and within the scope of their authorit


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as such agents and employees and with the permission and consent of all other Defendants.

Plaintiff is informed and believes, and thereon alleges, that Defendants have, and always herein

mentioned had, a joint economic and business interest, goal and purpose in the products that are

the subject of this lawsuit.

ALLEGATIONS OF FACT

A. HISTORY OF KoMuucak

The word "kombucha" is of uncertain etymology. The American Heritage

Dictionary suggests that it is probably from Japanese, "tea made from kombu (the Japanese

word for kelp perhaps being used by English speakers to designate fermented tea due to

confusion or because the thick gelatinous film produced by the kombucha culture was thought

to resemble seaweed).' Other sources report that the name "kombucha" is derived from Dr.

Kombu, a Korean physician who brought the fermented tea to Japan.

The origins of the beverage kombucha are likewise a bit murky, much like the

beverage itself. It is popularly bolieved that Kombucha originated in Northeast China

(historically referred to as Manchuria) around 220 B.C. Since inception Kombucha has been

prized for its healing properties4.

According to a Russian fable, the first kombucha culture originated from an ant.

As the story goes, a monk with healing powers was summoned to help an ailing emperor. The

monk promised to treat the emperor's sickness with an ant, dropping a single insect into the

emperor's tea and advising him to wait for the "jellyfish" to grow and transform the tea into a

healing potion. As the story goes, the emperor followed the monks' advice and was healed.

An alternative theory of origin was put forth by Bachinskaya, the Russian

scientist who first studied kombucha at the turn of the century. Bachinskaya also based her

origin theory on an insect (this time deriving from her observations related to fruit flies.) When

acetobacter bacteria that lives on the flies' legs are transferred to liquid they quickly begin

multiplying and converting the sugars to acetic acid, with the end result of turning batch of wine

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https://www.forbes.com/sites/christinatroitino/20 17/02/01 /kombucha- 101 -demystif'ing-the-past-present-and-future-of-the-fermented-tea-drink/#leceo8fa4ae2


Case No.

or beer to vinegar (or tea to kombucha) simply by landing on it.

30. Regardless of how the culture originated, kombucha was eventually brought to

Europe because of trade route expansions in the early 20th century, most notably appearing in

Russia (as "Kambucha") and Germany (as 'Kombuchaschwamm"). Despite a dip in

international popularity during WWI1 due to the shortage of tea and sugar supplies, kombucha

regained popularity following a 1960s study in Switzerland comparing its health benefits to

those of yogurt5. The beverage enjoyed a resurgence of popularity in the United States in the

1990's.

B. RIsE in CONTEMPORARY CONSUMER INTEREST IN KOMBUCHA

31. In the last decade, United States consumers have developed an insatiable thirst

for kombucha beverages. Such demand has catapulted the fringe kombucha market into a

multimillion dollar industry. In fat, according to research firm Euromonitor International, it is

projected that the industry that could reach $656.7 million in U.S. sales by 20196.

32. Kombucha has the fastest-growing segment of the "functional beverage" market

in the U.S—a category vaguely defined by one industry publication as "drinks with added

functionality, such as ingredients and associated health benefits and functional positioning.7"

33. "It fits right into that health and wellness trend," said Duane Stanford, editor of

Beverage Digest, a trade publication for the U.S. nonalcoholic beverage industry. 'People are

looking for healthier beverages, they're looking at ingredients and because there's a segment of

consumers that are really interested in that, kombucha just kind of becomes one of those niche

products that is able to get a following."

C. KOMBUCHA INGREDIENTS AND MANUFACTURING

34. Kombucha is the symbiosis of a number of bacteria and special yeast cultures.

In simple terms, kombucha starts out as a sugary tea, which is then fermented with the help of a

SCOBY.

35. "SCOBY" is an acronym for "symbiotic culture of bacteria and yeast." It is a

$ https://www.forbes.com/sitestchristinatroitino/20 17/02/0 I Ikombucha- 101 -demystifring-the-past-present-and- fisture-of-the.fermented-tea-drink/#43be7c9 I 4ae2 6 http:I/www.latimes.comlbusiness/Ia-fi-kombucha-makers-201 60 102-story.html

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zoogleal mat— that is, a mass of bacteria and yeast tied together with cellulose nanofibers.

The most visible aspect of the SCOBY, also called the "mother", is an off-white or brownish

mat that looks like a slimy Frisbee or a calamari steak.

Konibucha SCOBY

The SCOBY mat floats on top of a fermenting batch of kombucha. The growth

of the mat regulates the liquid's access to oxygen.

The primary bacteria in a SCOBY is komatagaeibacter ry/inum (aka

Acetobacterxylinum), although there could be other strains. In addition to building the SCOBY,

the bacteria are responsible for converting the ethanol produced by the yeast into healthy acids.

In a mutually beneficial cycle, the ethanol produced by the yeast in the SCOBY

becomes food for the bacteria which converts the ethanol to acetic acid.


Case No.

At room temperature, the yeast and bacteria feed on the sugar in the tea and

ferment it. It's a similar process to making wine, and a small amount of alcohol is produced in

the fermentation process. Vinegar and carbonation are also produced, which give kombucha its

I distinct sour flavor and effervescence.

D. THE PURPORTED BENEFITS OF KOMBucUA

According to the Mayo Clinic, "[Ijimited evidence suggests kombucha tea may

offer benefits similar to probiotic supplements, including promoting a healthy immune system

and preventing constipation. At present, however, valid medical studies of kombucha tea's role

in human health are very limited - and there are risks to consider.8"

"The probiotic content [of kombucha] is certainly a component to appreciate,"

says Caroline Cederquist, MD, founder of BistroMD. "[Prebiotics] and probiotics consistently

demonstrate improvements in digestive health with evidence supporting its use in treating

diarrhea and irritable bowel syndrome, and fighting against intestinal infections.9"

Probiotics are bacteria that line your digestive tract and support your body's

ability to absorb nutrients and fight infection. There are actually 10 times more probiotics in

your gut than cells in your body and since 80 percent of your immune system is located in your

B http://www.rnayoclinic.orgihealthy.lifcstylelconsumer-health/expert-an$WerS/kombucha-tealfaq-20058 126 9 https://www. wellandgood.com/good.food/how-to-read-a-kombucba-label/

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gut, and the digestive system is the second largest part of your neurological system, it's no

2 surprise that the gut is considered the "second brain."

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43. Kombucha's potential digestive benefits are particularly important in modem

4 American society. According to the National Institute of Diabetes and Digestive and Kidney

5 Diseases, "upward of 60 million to 70 million Americans are affected by digestive diseases. In

6 addition, digestive disease and disorders cost the U.S. over $100 billion per year."

7 44. Hippocrates is attributed with the saying "all disease begins in the gut."

8 Thousands of years later, health-conscious consumers are guzzling Kombucha in the belief that

so doing will increase gastrointestinal health and overall well-being. Kombucha has become the 9

"apple-a-day" of the millennial generation. 10

E. HISTORY OF KEVin MASTER BREW KOMEUCHA

11 45. Crafted since 2009, the KeVita's Master Brew Kombucha beverages have grown

12 from a kitchen in Ojai, California to placement in over 20,000 retail locations across North

13 America.

14 46. Chakra Earthsong Levy, KeVita's chief fonnulator and co-founder, explained

15 that white the inspiration behind the creation of the beverages was to create a healthy alternative

16 to soda, the journey from concept to finished product took a long and winding route. "KeVita

17 emerged quite naturally actually. After decades of culturing sauerkraut, seed and nut cheeses,

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traditional kefir and yogurt, I created what I fondly call 'my best ferment," Ms. Levy said. "A

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year in development, Lemon Ginger was the first flavor, followed by Living Greens and Green

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Tea. Living Greens is such a powerful blend of superfoods with just the right amount of green

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12- Action Complaint

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Kevita' s Master Brew Kombucha beverages (the "Product") is currently offered

in eleven flavors:

grapefruit 0 mango habanero

roots beer () dragonthrit lemongrass

blueberry basil citrus

tart cherry ginger

raspberry lemon pineapple peach

(93 lavender melon

Regardless of flavor, the Product is similarly situated in that each: (a) is the same

basic product, kombucha; (b) contains many of the same basic ingredients; (c) are subject to the

same manufacturing processes and procedures including, inter alia, pasteurization; and (d)

contain on their labels, verbatim advertisements, representations and warranties which are at

issue in this litigation.


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C

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F. ALTHOUGH NOT ORIGINALLY P4&RT OF THE MANUFACTURING

PROCESS KEVITA PASTEURIZES THEIR KOMBUCHA PRODUCT

Pasteurization is a process that kills microbes (mainly bacteria) in food and

drink, such as milk, juice, canned food, and others.

Pasteurization generally involves briefly heating a liquid to kill harmful bacteria

such as salmonella. Pasteurization is, however, an indiscriminate process that kills off not only

undesirable elements but also the yeast and bacteria that are essential to the fermentation

process including the very probiotics for which consumers purchase the products. Indeed,

pasteurization of a living product such as Kombucha is antithetical to the fermentation process.

KeVita was not always manufactured with pasteurization. Originally and until as

recently as 2011, KeVita was cold-processed, non-pasteurized and kept chilled during

manufacturing, bottling and transportation. It was never heated during production "in order to

maintain the integrity of KeVita's certified organic living cultures.""

The importance of providing a live, raw and unpasteurized kombucha product

was not lost on the founders of KeVita. Co-founder Bill Moses boasted "[s]everal kombucha

manufacturers utilize pasteurization that kill the live cultures in order to limit alcohol

production ...However, at KeVita, we've devised a proprietary technique that enables us to

'I https://www.nutraceuticalswor!d.com/contents/view_onhine-exclusives/20 124! -30/fizzy-lifling-drinks/ -14-


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deliver a delicious, live and active raw culture through the end of shelf-life.12"

Ensuring the product was "authentic, live and beneficial" to customers and not

subject to pasteurization was echoed by Chakra Earthsong, KeVita's chief formulator and co-

founder who is quoted as saying, "KeVita's promise to our customers is to provide an authentic

product with the highest quality organic ingredients available... We've dedicated significant

resources to ensure that KeVita's cultures remain alive to afford optimal benefits to our loyal

consumers 3 ." As Ms. Earthson-Levy noted in the peijorative, "[n]amrally cultured or

fermented drinks cannot be shipped wann then chilled, unless they have been pasteurized."4

C. KEVITA's DEcErrivE ADVERTISIP4G

American consumers are health conscious and look for wholesome, natural foods

to keep a healthy diet. Product package labels are vehicles that convey food quality and

nutrition information to consumers that they can and do use to make purchasing decisions.

Defendants realize that consumers are increasingly aware of the relationship

between health and diet and, thus, understand the importance and value of descriptors and labels

that convey to consumers certain "buzzwords" when considering whether to buy foods.

Throughout the Class Period, Defendants engaged in, and Plaintiff and members

of the Classes were exposed to, a long-term advertising campaign in which Defendants utilized

various forms of media including, but not limited to, website, social media advertising, and print

advertising on the KeVita label. Throughout the Class Period, Defendants have failed concealed

the facts of the products' pasteurization. Moreover, Defendants have consistently made certain

representations in its labeling, advertising, and marketing that are false and misleading. To

accomplish this, Defendants use an integrated, nationwide messaging campaign to consistently

convey the deceptive and misleading message that KeVita is fermented and "live" without

disclosing (and in fact actively concealing) the pasteurization. This message, at a minimum, is

conveyed at the point of purchase on the KeVita packaging and labeling. Thus, all consumers

are exposed to the same message whether viewed on the internet or on the label.

12 https://www.nutraceuticalsworld.comlcontents/view_onhine-excluSiveS/2Ol 2-01 -30/ iizzy-lifting-drinks/ "https://www.nutraceuticalsworld.com/contents/view_onhine-excIuSiveS/201 2-01 -30/fizzy-Iifting-drinks/ ' htips://www.nutraceuticalsworld.cotn/contentsfview_onhine-excluSiveS/2Ol 2-01 -30/fizzy-lifling-drinksl

-15-

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C

58. During the Class Period, Plaintiff was introduced to the Product through its

2

labeling and advertising.

3

59. A reasonable consumer understands kombucha to be fermented from a SCOBY

4 culture and only minimally processed.

5

60. Defendants' labeling of the Product underscore and perpetuated consumer

6 beliefs. Specifically, Defendants state on the Product's packaging and labeling:

7

Fermented

S . "Live Probiotic"

9 • "Crafted with live probiotics"

10 "fermented with our proprietary tea culture which yields high levels of beneficial

11 organic acids"

12 • "Perishable"

13 • "Keep refrigerated"

14 61. These statements and pictures mislead the consumer into believing that the

15 Product is fermented from kombucha culture and contained probiotics and beneficial organic

16 acids derived directly therefrom without pasteurization or post- pasteurization manipulation.

17

62. Plaintiff and the Classes reasonably understood the Product's packaging to mean

18 that the Product was fermented from kombucha culture and contained probiotics and beneficial

19 organic acids derived directly therefrom without adulteration through pasteurization.

20

63. Consumers lack the meaningful ability to test or independently ascertain the

21 truthfulness of food and beverage labeling claims especially at the point of sale.. Consumers

22 would not know the true nature of the ingredients or the details of the manufacturing process

23 merely by reading the ingredient label; their discovery requires investigation beyond the grocery

24 store and knowledge of food chemistry as well as internal manufacturing habits beyond that of

25 the average consumer. Thus, reasonable consumers must, and do, rely on food companies such

26 as Defendants to honestly report the nature of a beverage's qualities and ingredients, and

27 beverage companies such as Defendants intend and know that consumers rely upon food

28 labeling statements in making their purchasing decisions. Such reliance by consumers is also


Case No.

C-

I I eminently reasonable, since food companies are prohibited from making false or misleading

2

statements on their products under federal law.

3

64. Defendants unscrupulously capitalize on consumers' heightened demand for

4 natural products by deceptively labeling, advertising, and marketing KeVita.

5

TOLLING OF THE STATUTE OF LIMITATIONS,

6

FRAUDULENT CONCEALMENT, EQUITABLE TOLLING,

7

AND CONTINUING VIOLATIONS

8 65. Plaintiff did not discover, and could not have discovered through the exercise

9 reasonablc diligcnce, the existence of the claims sued upon herein until immediately prior to

10 commencing this civil action.

11 66. Any applicable statutes of limitation have been tolled by Defendants' affirmative

12 I acts of fraudulent concealment and continuing misrepresentations, as the facts alleged above

13 reveal.

14 11 67. Because of the self-concealing nature of Defendants' actions and their

15 affirmative acts of concealment, Plaintiff and the Classes assert the tolling of any applicable

16 statutes of limitations affecting the claims raised herein.

17 68. Defendants continue to engage in the deceptive practice, and consequently,

18 unwary consumers are injured on a daily basis by Defendants' unlawftil conduct. Therefore,

19 Plaintiff and the Classes submit that each instance that Defendants engaged in the conduct

20 complained of herein and each instance that a member of any Class purchased KeVita's Product

21 constitutes part of a continuing violation and operates to toll the statutes of limitation in this

22 action.

23 69. Defendants are estopped from relying on any statute of limitations defense

24 because of their unfair or deceptive conduct.

25 I 70. Defendants' conduct was and is, by its nature, self-concealing. Still, Defendants,

26 through a series of affirmative acts or omissions, suppressed the dissemination of truthful

27 information regarding their illegal conduct, and actively have foreclosed Plaintiff and the

Classes from learning of their illegal, unfair, and/or deceptive acts. These affirmative acts -17-


1

included concealing that the Product is pasteurized.

2

71. By reason of the foregoing, the claims of Plaintiff and the Classes are timely

3

under any applicable statute of limitations, pursuant to the discovery rule, the equitable tolling

4

doctrine, and fraudulent concealment.

5

CLASS ACTION ALLEGATIONS

6

72. Plaintiff brings this action individually and on behalf of all other persons

7

similarly situated. The Classes which Plaintiff seeks to represent comprise:

8

California Class

9

All persons in California who purchased the Product from October 4,

10

2013 until the date of judgment in this action for personal or household

II us; and not for resale or distribution purposes. Specifically excluded

12

from this Class are Defendants, the officers, directors, or employees of

13

Defendants, any entity in which Defendants have a controlling interest,

14

and any affiliate, legal representative, heir, or assign of Defendants. Also

15 excluded are those who assert claims for personal injury as well as any

16

federal, state, or local governmental entities, any judicial officer presiding

17

over this action and the members of his/her immediate family and judicial

18

stag and any juror assigned to this action.

19

National Class

20

All persons in the United States who purchased the Product from October

21

4, 2013, until the date of judgment in this action for personal or

22

household use, and not for resale or distribution purposes. Specifically

23 excluded from this Class are Defendants, the officers, directors, or

24 employees of Defendants, any entity in which Defendants have a

25 controlling interest; and any affiliate, legal representative, heir, or assign

26

of Defendants. Also excluded are those who assert claims for personal

27

injury as well as any federal, state, or local governmental entities, any

28

judicial officer presiding over this action and the members of his/her


Case No.

immediate family and judicial stag and any juror assigned to this action.

2 Consumer Protection Class

3 All persons who reside in states in the United States with similar

4 consumer protection laws, breach of express warranty laws and breach of

5 implied warranty law, who purchased the Product from October 4, 2013

6 until the date of judgment in this action, for personal or household use,

7 and not for resale or distribution purposes. Specifically excluded from

8 this Class are Defendants, the officers, directors, or employees of

9 Defendants, any entity in which Defendants have a controlling interest,

10 and any affiliate, legal representative, heir, or assign of Defendants. Also

11 excluded are those who assert claims for personal injury as well as any

12 federal, state, or local governmental entities, any judicial officer presiding

13 over this action and the members of his/her immediate family and judicial

14 stag and any juror assigned to this action.

15 73. The Classes are sufficiently numerous, as each includes thousands of persons

16 who have purchased the Product. Thus, joinder of such persons in a single action or bringing all

17 members of the Classes before the Court is impracticable for purposes of California Civil Code

18 §382. The question is one of a general or common interest of many persons and it is impractical

19 to bring them all before the Court. The disposition of the claims of the members of the Classes

20 in this class action will substantially benefit both the parties and the Court.

21 74. There are questions of law and fact common to each Class for purposes of

22 California Civil Code §382, including whether a pasteurized beverage product is properly

23 labeled as "kombucha"; and whether Defendants' labels and packaging include uniform

24 misrepresentations and omissions that misled Plaintiff and the other members of the Classes to

25 believe the Product was fermented and unpasteurized. The members of each Class were and are

26 similarly affected by having purchased the Product for its intended and foreseeable purpose as

27 promoted, marketed, advertised, packaged, and labeled by Defendants as set forth in detail

28 herein, and the relief sought herein is for the benefit of Plaintiff and other members of the


Case No.

Classes. Thus, theie is a well-defined community of interest in the questions of law and fact

2

involved in this action and affecting the parties.

3

75. Plaintiff asserts claims that are typical of the claims of each respective Class for

4

purposes of California Civil Code §382. Plaintiff and all members of each respective Class

5 have been subjected to the same wrongful conduct because they have purchased that Product,

6 which is not natural as represented. Plaintiff paid a premium for the Product, on the belief it

7 was natural, over similar alternatives that did not make such representations. Plaintiff and the

8

members of each Class have thus all overpaid for the Product.

9

76. Plaintiff will fairly and adequately represent and protect the interests of the other

10

members of each respective Class for purposes of California Civil Code §382. Plaintiff has no

11

interests antagonistic to those of other members of each respective Class. Plaintiff is committed

12

to the vigorous prosecution of this action and has retained counsel experienced in litigation of

13 this nature to represent her. Plaintiff anticipates no difficulty in the management of this

14

litigation as a class action.

15

77.. Class certification is appropriate under California Civil Code §382 because

16 Defendants have acted on grounds that apply generally to each Class, so that final injunctive

17 relief or corresponding declaratory relief is appropriate respecting each Class as a whole.

18 Defendants utilize an integrated, nationwide messaging campaign that includes uniform

19 misrepresentations that misled Plaintiff and the other members of each Class.

20

78. Class certification is appropriate under California Civil Code §382 because

21 common questions of law and fact substantially predominate over any questions that may affect

22 only individual members of each Class. Among these common questions of law and fact are:

23 a. whether Defendants misrepresented or omitted material facts in connection with

24 the promotion, marketing, advertising, packaging, labeling, and sale of the

25

Product;

26

b. whether Defendants' labeling of the Product is likely to deceive the members of I

27

each Class;

28

c. whether Defendants' conduct is unethical, oppressive, unscrupulous, and/or


Case No.

1 substantially injurious to consumers;

2 d. whether Defendants represented that the Product has characteristics, benefits,

3 uses, or qualities that it does not have;

4 e. whether Defendants' acts and practices in connection with the promotion,

5 marketing, advertising, packaging, labeling, distribution, and sale of the Product

6 violated the Jaws alleged herein;

7 £ whether Plaintiff and members of the Classes are entitled to injunctive and other

8 equitable relief; and

9 g. whether Defendants were unjustly enriched by their conduct.

10 79. Defendants engaged in a common course of conduct giving rise to the legal

11 rights sought to be enforced by the members of each respective Class. Similar or identical

12 statutory and common law violations and deceptive business practices are involved. Individual

13 questions, if any, pale by comparison to the numerous common questions that predominate.

14 80. The injuries sustained by Plaintiff and the members of each Class flow, in each

15 instance, from a common nucleus of operative facts - Defendants' misconduct.

16 81. Plaintiff and the members of each Class have been damaged by Defendants'

17 misconduct. The members of each Class have paid for a product that would not have been

18 purchased in the absence of Defendants' deceptive scheme, or, alternatively, would have been

19 purchased at a lesser price.

20 82. Proceeding as a class action provides substantial benefits to both the parties and

21 the Court because this is the most efficient method for the fair and efficient adjudication of the

22 controversy. Members of each Class have suffered and will suffer irreparable harm and

23 damages as a result of Defendants' wrongfi.zl conduct. Because of the nature of the individual

24 claims of the members of each Class, few, if any, could or would otherwise afford to seek legal

25 redress against Defendants for the wrongs complained of herein, and a representative class

26 action is therefore the appropriate, superior method of proceeding and essential to the interests

27 ofjustice insofar as the resolution of claims of the members of each Class is concerned. Absent

28 a representative class action, members of each Class would continue to suffer losses for which


Case No.

they would have no remedy, and Defendants would unjustly retain the proceeds of its ill-gotten

2 gains. Even if separate actions could be brought by individual members of each Class, the

3 ; resulting multiplicity of lawsuits would cause undue hardship, burden, and expense for the

4 Court and the litigants, as well as create a risk of inconsistent rulings, which might be

5 dispositive of the interests of the other members of each Class who are not parties to the

6 adjudications and/or may substantially impede their ability to protect their interests.

7

FIRST CAUSE OF ACTION

8

FALSE AND MISLEADING ADVERTISING IN VIOLATION OF BUSINESS &

9

PROFESSIONS CODE §17200, et seq.

10

(By Plaintiff and California Class against all Defendants and Does 1-10)

11

83. Plaintiff repeats and realleges the allegations set forth above, and incorporates

12

I the same as if set forth herein at length.

13

84. This cause of action is brought pursuant to Business and Professions Code

14

§ 17200, etseq.

15

85. In the advertising of the Product, Defendants makes false and misleading

16 statements and material omissions. Specifically, as set forth above, Defendants labels their

17 product: (I) as "kombucha"; (2) derived from a "Kombucha Culture"; (3) "...ferznented with

18 our proprietary tea culture, which yields high levels of beneficial organic acids"; (4) [c}rafted

19 with live probiotics;" and (4) as containing "probiotics".

20

86. In fact, the Product is pasteurized after fermentation which kills most if not all

21

the cultures, acids and probiotics which are touted on the label.

22

87. Defendants are aware that the claims that they make about the Product are false,

misleading and unsubstantiated.

As alleged in the preceding paragraphs, the misrepresentations and omissions by

Defendants of the material facts detailed above constitute an unfair and fraudulent business

practice within the meaning of California Business & Professions Code § 17200.

In addition, Defendants' use of various forms of advertising media to advertise,

call attention to or give publicity to the sale of goods or merchandise which are not as

-22-

\ 23

24

25

26

27

28

Action Complaint Case No.

I represented in any manner constitute unfair competition, unfair, deceptive, untrue or misleading

2 advertising, and an unlawful business practice within the meaning of Business & Professions

3 Code § 17531 and 17200, which advertisements have deceived and are likely to deceive the

4

consuming public, in violation of Business & Professions Code § 17500.

5

90. There were reasonably available alternatives to further Defendants' legitimate

6 I business interests, other than the conduct described herein.

7

91. All of the conduct alleged herein occurs and continues to occur in Defendants'

8 I business. Defendants' wrongful conduct is part of a pattern or generalized course of conduct

9 repeated on thousands of occasions daily.

10

92. Pursuant to Business & Professions Code §17203 and 17535, Plaintiff and the

11 members of the Classes seek an order of this Court enjoining Defendants from continuing to

12 engage, use, or employ their practice of advertising the sale and use of the Product. Likewise,

13

Plaintiff and the members of the Classes seek an order requiring Defendants to disclose such

14 misrepresentations, and additionally request an order awarding Plaintiff restitution of the money

15 wrongfully acquired by Defendants by means of responsibility attached to Defendants' failure

16 to disclose the existence and significance of said misrepresentations.

17

SECOND CAUSE OF ACTION

18

FALSE AND MISLEADING ADVERTISING IN VIOLATION OF BUSINESS &

19

PROFESSIONS CODE §17500, et seq.

20


21

93. Plaintiff repeats and realleges the allegations set forth in the preceding

22

iaragraphs, and incorporates the same as if set forth herein at length.

23

94. This cause of action is brought pursuant to Business and Professions Code

24

§ 17500, et seq. (the "FAL"). The FAL prohibits the dissemination of any advertisement which

25

is untrue or misleading, and which is known, or which by exercise of reasonable care should be

26

known, to by untrue or misleading. Cal. Bus. & Prof Code § 17500.

27

95. In its advertising of Product, Defendants make false and misleading statements.

28

Specifically, as set forth above, Defendants labels their product: (1) as "kombucha"; (2) derived


Case No.

'I

from a "Kombucha Culture"; (3) ".. fermented with our proprietary tea culture, which yields

2

high levels of beneficial organic acids"; (4) [c]rafted with live probiotics;" and (4) as containing

3 "probiotics".

4

96. In fact, the Product is pasteurized after fermentation which kills most if not all

5 of the cultures, acids and probiotics which are touted on the label Defendants are aware that

6

the claims that they make about Product are false, misleading and unsubstantiated.

7

97. As alleged in the preceding paragraphs, the misrepresentations by Defendants of

8 the material facts detailed above constitute an unfair and fraudulent business practice within the

9

meaning of California Business & Professions Code § 17500.

Jo

98. In addition, Defendants' use of various forms of advertising media to advertise,

11 call attention to or give publicity to the sale of goods or merchandise which are not as

12 represented in any manner constitutes unfair compctition, unfair, deceptive, untrue or

13 misleading advertising, and an unlawfUl business practice within the meaning of Business &!

14 Professions Code §§ 17531 and 17200, which advertisements have deceived and are likely to

15

deceive the consuming public, in violation of Business & Professions Code § 17500.

16

99. Pursuant to Business & Professions Code §1 7203 and 17535, Plaintiff and the

17 members of the Classes seek an order of this Court enjoining Defendants from continuing to

18 engage, use, or employ their practice of advertising the sale and use of the Product. Likewise,

19

Plaintiff and the members of the Classes seek an order requiring Defendants to disclose such

20 misrepresentations, and additionally request an order awarding Plaintiff restitution of the money

21 wrongfiñly acquired by Defendants by means of responsibility attached to Defendants' failure

22

to disclose the existence and significance of said misrepresentations.

23

ThIRD CAUSE OF ACTION

24

VIOLATION OF CALIFORNIA CIVIL CODE §1750, et seq.

25


26

100. Plaintiff repeats and realleges all the allegations of the previous paragraphs, and

27

incorporates the same as if set forth herein at length.

28

101. This cause of action is brought pursuant to Civil Code §1750, et seq., the


Case No.

C

1

Consumers Legal Remedies Act.

2

102. Plaintiff, as well as each member of the Consumer Class, constitutes a

3

"consumer" within the meaning of Civil Code § 1761(d).

4

103. Defendants' sales of the Product constitute "transactions" within the meaning of

5

Civil Code § 1761(e).

6

104. The Product purchased by Plaintiff and the Consumer Class constitute "goods"

7

under Civil Code §1761(a).

8

105. The Consumer Class consists of thousands of persons, the joinder of whom is

9 impracticable.

10

106. There are questions of law and fact common to the classes, which questions are

II substantially similar and predominate over questions affecting the individual members,

12

including but not limited to:

13

(a) Whether Defendants represented that the Product has characteristics, benefits, uses or

14

quantities which it does not have;

15

(b) Whether the existence, extent and significance of the major misrepresentations,

16 concealments and omissions regarding the purported benefits, characteristics and efficacy of the

17

Product violate the Act; and

18

(c) Whether Defendants knew of the existence of these misrepresentations,

19

concealments and omissions.

20

107. The policies, acts, and practices heretofore described were intended to result in

21

the sale of Health-Ade Kombucha to the consuming public and violated and continuc to violate:

22 (I) Section 1770(a)(5) of the Act which prohibits, inter alia, "[r]epresenting that goods or

23 services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities

24 which they do not have;" (2) Section 1 770(a)(7) of the Act, which prohibits, "[rJepresenting that

25 goods or services are of a particular standard, quality, grade, or that goods are of a particular

26 style or model , if they are of another;" (3) Section 1 770(a)(9), which prohibits, '[a]dvertising

27 goods or services with intent not to sell them as advertised" and section 1 770(a)(14) which bars

28

KeVita from "representing that a transaction confers or involves rights, remedies, or obligations


Case No.

which it does not have or involve."

2

108. Defendants fraudulently deceived Plaintiff and the Classes by representing that

3

Product has certain characteristics, benefits, uses and qualities which it does not have. In doing

4 ' so, Defendants intentionally misrepresented and concealed material facts from Plaintiff and the

5 Classes, specifically and not limited to that Product is natural. Said misrepresentations and

6

concealment were done with the intention of deceiving Plaintiff and the Classes and depriving

7

them of their legal rights and money.

8

109. Defendants knew that Product was, not truly derived from a kombucha culture,

9 and did not qualif' as "kombucha" as represented in Defendants' advertisements and on

10

Defendants' packaging because the product was subject to pasteurization.

II

110. Defendants' actions as described hereinabove were done with conscious

12

disregard of Plaintiffs rights and Defendants were wanton and malicious in theft concealment

13

of the same.

14

Ill. Pursuant to California Civil Code §1780(a) of the Act, Plaintiff seeks injunctive

15 relief in the form of an order enjoining the above-described wrongfUl acts and practices of

16

Defendants including, but not limited to, an order enjoining Defendants from disfributing such

17

false advertising and misrepresentations. Plaintiff shall be irreparably harmed if such an order

18

is not granted.

19

112. Plaintiff reserves the right to amend this complaint to include a request for

20 damages under the CLRA after complying with California Civil Code §1782(a) within thirty

21

days after the commencement of this actibn.

22

FOURTH CAUSE OF ACTION

23

UNJUST ENRICHMENT

24

(By Plaintiff, California Class and National Class

25

Against all Defendants and Does 1-10)

26

113. Plaintiff repeats and realleges the allegations set forth in the preceding I 27 paragraphs, and incorporates the same as if set forth herein at length.

28

114. Plaintiff brings this claim individually, as well as on behalf of members of the


Case No.

it

I nationwide Class and California Class pursuant California law. Although there are numerous

2

permutations of the elements of the unjust enrichment cause of action in the various states, there

3 ! are few real differences, in all states, the focus of an unjust enrichment claim is whether the

4

defendant was unjustly enriched. At the core of each state's law are two fundamental elements

5 - the Defendant received a benefit from the plaintiff and it would be inequitable for the

6

defendant to retain that benefit without compensating the plaintiff. The focus of the inquiry is

7 the same in each state. Since there is no material conflict relating to the elements of unjust

8 enrichment between the different jurisdictions from which class members will be drawn,

9

California law applies to the claims of the Class.

10

115. In the alternative, Plaintiff brings this claim individually as well as on behalf of

11 I the California Class.

12

116. At all times relevant hereto, Defendants deceptively labeled, marketed,

13

I advertised, and sold Product to Plaintiff and the Classes.

14

117. Plaintiff and members of the Classes conferred upon Defendants non-gratuitous

15 payments for Product that they would not have due to Defendants' deceptive labeling,

16 advertising, and marketing. Defendants accepted or retained the non-gratuitous benefits

17 conferred by Plaintiff and members of the Classes, with full knowledge and awareness that, as a

18 result of Defendants' deception, Plaintiff and members of the Class were not receiving a

19 product of the quality, nature, fitness, or value that had been represented by Defendants and

20 reasonable consumers would have expected. -

21

118. Defendants have been unjustly enriched in retaining the revenues derived from

22 purchases of Product by Plaintiff and members of the Classes, which retention under these

23 circumstances is unjust and inequitable because Defendants misrepresented that Product is: (1)

24

"kombucha"; (2) derived from a "Kombucha Culture"; (3) "...fermented with our proprietary

25 tea culture, which yields high levels of beneficial organic acids"; (4) [c]rafted with live

26 probiotics;" and (4) as containing "probiotics", when in fact it is subject to pasteurization,

27 which caused injuries to Plaintiff and members of the Classes because they paid a price

28

premium due to the mislabeling of Product.


Case No.

1

119. Retaining the non-gratuitous benefits conferred upon Defendants by Plaintiff and

2 I members of the Classes under these circumstances made Defendants' retention of the non-

3 gratuitous benefits unjust and inequitable. Thus, Defendants must pay restitution to Plaintiff

4 I and members of the Classes for their unjust enrichment, as ordered by the Court.

5

FIFTH CAUSE OF ACTION

6

BREACH OF EXPRESS WARRANTY

7

(By Plaintiff, on behalf of herself, the California Class and

8

Consumer Protection Class Against all Defendants and Does 1-10)

9


10

I paragraphs, and incorporates the same as if set forth herein at length.

11

121. Plaintiff brings this Count individually under the laws of the state where she

12 I purchased Product and on behalf of the California Class and Consumer Protection Class (in

13 states having similar laws regarding express warranties).

14

122. Defendants' representations, as described herein, are affirmations by Defendants

15

that Product is: (1) as "kombucha"; (2) derived from a "Kombucha Culture"; (3) ". . . fermented

16 with our proprietary tea culture, which yields high levels of beneficial organic acids"; (4)

17

[c]rafted with live probiotics;" and (4) as containing "probiotics". Defendants' representations

18 regarding Product are made to Plaintiff and the other members of the Classes at the point of

19 purchase and are part of the description of the goods. Those promises constituted express

20 warranties and became part of the basis of the bargain, between Defendants on the one hand,

21 and Plaintiff and the Classes on the other.

22

123. In addition, or in the alternative, Defendants made each of their above-described I

23 representations to induce Plaintiff and the Classes to rely on such representations, and they each

24 did so rely on Defendants' representations as a material factor in their decisions to purchase

25

Product. Plaintiff and other members of the Classes would not have purchased Product but for

26

these representations and warranties. -

27

124. The Product did not, in fact, meet the representations Defendants made about

28

Product, as described herein.


Case No.

(

125. At all times relevant to this action, Defendants falsely represented that Product

2 was (1) as "kombucha"; (2) derived from a "Kombucha Culture"; (3) ".. .fermented with our

3 proprietary tea culture, which yields high levels of beneficial organic acids"; (4) [c]rafted with

4 live probiotics;" and (4) as containing "probiotics", when in fact it is pasteurized, a process

5 which undermines each of the subject claims.

6

126. At all times relevant to this action, Defendants made false representations in

7

breach of the express warranties and in violation of state express warranty laws, including:

8

a. Alaska St. §45.02.313;

9

b. Ariz. Rev. Stat. Ann. §47-23 13;

10

c. Ark. Code Ann. §4-2-3 13;

II

d. Cal. Corn. Code §2313;

12 e. Cob. Rev. Stat. §4-2-313;

13

f. Conn. (len. Stat. Ann. §42a-2-3 13;

14 g. D.C. Code §28:2-3 13;

15

h. Fla. Stat. §672.313;

16

I. Haw. Rev. Stat. §490:2-3 13;

'7

j. 810 Ill. Comp. Stat. 5/2-313;

18

k. md. Code §26-1-2-313;

19

I. Kan. Stat. Ann. §84-2-3 13;

20

m. La. Civ. Code. Ann. art. 2520;

21 n. Maine Rev. Stat. Ann. II §2-3 13; -d

22 o. Mass. Gen. Laws Ann. 106 §2-3 13;

23 p. Minn. Stat. Ann. §336.2-3 13;

24 q. Miss. Code Ann. §75-2-313;

25 r. Mo. Rev. Stat. §400.2-3 13;

26

s. Mont. Code Ann. §30-2-313;

27

t. Neb. Rev. Stat. §2-3 13;

28 u. Nev. Rev. Stat. §104.23 13;


Case No.

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2

3

4

5'

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7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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r N.H. Rev. Stat. Ann. §382-A:2-313;

N.J. Stat. Ann. §12A:2-313;

N.M. Stat. Ann. §55-2-3 13;

N.Y. U.C.C. Law §2-3 13;

N.C. Gen. Stat Ann. §25-2-3 13;

aa. OkIa. Stat. Ann. tit. 12A, §2-313;

bb. Or. Rev. Stat. §72.3 130;

cc. Pa. Stat. Ann. tit. 13, §2313;

dd. R.I. Gen. Laws §6A-2-313;

ee. S.C. Code Ann. §36-2-3 13;

if. S.D. Codified Laws. §57A-2-313;

gg. Tenn. Code Ann. §47-2-313;

hh. Tex. Bus. & Corn. Code Ann. §2.3 13;

ii. Utah Code Ann. §70A-2-313;

jj. Vt. Stat. Ann. tit. 9A2-313;

kk. Wash. Rev. Code §62A.2-313;

11. W. Va. Code §46-2-3 13;

mm. Wyo. Stat. Ann. §34.1-2-313;

The above statutes do not require privity of contract in order to recover for

breach of express warranty.

As a proximate result of this breach of warranty by Defendants, Plaintiff and

other members of the Classes have been damaged in an amount to be determined at trial

because: (a) they paid a price premium due to the deceptive labeling of Product; and (b) Product

did not have the cornposition, attributes, characteristics, nutritional value, health qualities, or

value promised.

Wherefore, Plaintiff and the Classes demand judgment against Defendants for

compensatory damages, plus interest, costs, and such additional relief as the Court may deem

appropriate or to which Plaintiff and the Classes maybe entitled.


Case No.

SIXTH CAUSE OF ACTION

2 BREACH OF IMPLIED WARRANTY

3 (By Plaintiff, on Behalf of Herself, the California Class, the California Class and

4 Consumer Protection Class Against Defendants and Does 1-10)

5 130. Plaintiff repeats and realleges the allegations set forth in the preceding

6 paragraphs, and incorporates the same as if set forth herein at length.

7 131. Plaintiff brings this Count individually under the laws of the state where she

8 purchased Product and on behalf of the California Class and Consumer Protection Class (in

9 states having similar laws regarding implied warranties).

10 132. The Uniform Commercial Code §2-314 provides that unless excluded or

11 modified, a warranty that the goods shall be merchantable is implied in a contract for their sale

12 if the seller is a merchant with respect to goods of that kind. This implied warranty of

13 merchantability acts as a guarantee by the seller that his goods are fit for the ordinary purposes

14 for which they are to be used.

15 133. The Uniform Commercial Code §2-3 14 provides that "[g]oods to be

16 merchantable must be at least such as.... Conform to the promises or affirmations of fact made

17 on the container or label if any." Cal.Com.Code § 2314(2)(f).

18 134. Defendants developed, manufactured, advertised, marketed, sold, and/or

19 distributed the Product and represented that the Product was (I) as "kombucha"; (2) derived

20 from a "Kombucha Culture"; (3) ". . .fermented with our proprietary tea culture, which yields

21 high levels of beneficial organic acids"; (4) [c]rafted with live probiotics;" and (4) as containing

22 "probiotics".

23 135. Defendants failed to disclose and in fact actively concealed that the Product is

24 was pasteurized and was not "kombucha", as promised.

25 136. At all times, the following states listed below, including the District of

26 Columbia, have codified and adopted the provisions of the Uniform Commercial Code

27 governing the implied warranty of merchantability:

28 a. Ala Code §7-2-3 14;


Case No.

U

Ii b. Alaska Stat. §45.02.3 14;

2

c. Ariz. Rev. Stat. Ann. §47-23 14;

3

d. Ark. Code Ann. §4-2-3 14;

4

e. CaJ. Corn. Code §23 14;

5

f. Cob. Rev. Stat. §4-2-3 14;

6

g. Conn. Gen. Stat. Ann. §42a-2-3 14;

7

h. Del. Code Ann. tit. 6 §2-3 14;

8

I. D.C. Code §28:2-3 14;

9

j. Fla. Stat. §672.3 14;

10

k. Ga. Code Ann. §11-2-3 14;

11

I. Haw. Rev. Stat. §490:2-3 14;

12

M. Idaho Code §28-2-314;

13

n. 810111. Cornp. Stat. Ann. 5/2-3 14;

14

o. md. Code Ann. §26-1-2-314;

15

P. Iowa Code Ann. §554.2314;

16

q. Kan. Stat. Ann. §84-2-3 14;

17

r. Ky. Rev. Stat. Ann. §355.2-3 14;

18

S. La. Civ. Code Ann. art. §2520;

19

t. Me. Rev. Stat. Ann. 11 §2-3 14;

20

U. Md. Code Ann. Corn. Law §2-3 14;

21

V. Mass. Gen. Laws Ch. 106 §2-3 14;

22

W. Mich. Comp. Laws Ann. §440.2314;

23

X. Minn. Stat. Ann. §336.2-3 14;

24

y. Miss. Code Ann. §75-2-314;

25

Z. Mo. Rev. Stat. §400.2-3 14;

26

aa. Mont. Code Ann. §30-2-3 14;

27

bb. Nev. Rev. Stat. §104.2314;

28

cc. N.H. Rev. Stat. Ann. §382-A:2-314;


Case No.

I

dd. N.J. Stat. Ann. §12A:2-314;

2

ee. N.M. Stat. Ann. §55-2-3 14;

3

if. N.Y. U.C.C. Law §2-3 14;

4 gg. N.C. Gen. Stat. Ann. §25-2-3 14;

5

hh. N.D. Cent. Code §41-02-3 14;

6

ii. Ohio Rev. Code Ann. §1302.27;

7

jj. OkIa. Stat. Ann. tit. 12A §2-3 14;

8

kk. Or. Rev. Stat. §72.3140;

9

11. Pa. Stat. Ann. tit. 13 §23 14;

10 mm. R.I. Gen. Laws §6A-2-314;

11

tin. S.C. Code Ann. §36-2-314;

12

00. S.D. Codified Laws §57A-2-314;

13

pp. Tenn. Code Ann. §47-2-314;

14

qq. Tex. Bus. & Corn. Code Ann. §2-3 14;

15

rr. Utah Code Ann. §70A-2-314;

16

ss. Vs. Code Ann. §8.2-314;

17

U. Vt. Stat. Ann. tit. 9A §2-3 14;

18

uu. W. Va. Code §46-2-3 14;

19

vv. Wash. Rev. Code §62A 2-314;

20 ww. Wis. Stat. Ann. §402.3 14; and

21

xx. Wyo. Stat. Ann. §34.1:2-3 14.

22

137. As developer, manufacturer, producer, advertiser, marketer, seller and/or

23 distributor of sweetening products, Defendants are "merchants" within the meaning of the

24 various states' commercial codes governing the implied warranty of merchantability.

25

138. Further, Defendants are merchants with respect to the Product. Defendants

26 developed, manufactured, produced, advertised, marketed, sold, and/or distributed the Product

27 and represented to Plaintiff and the Classes that they developed the Product as a natural

28 sweetener primarily made from the monk fruit plant as described herein. Further, Defendants,


Case No.

1 by selling the Product to Plaintiff and the Classes, have held themselves out as retailers of the

2 Product that could be used as a natural sweetener primarily made from the monk fruit plant and,

3 in fact, have derived a substantial amount of revenues from the sale of the Product.

4 139. The Product can be classified as "goods," as defined in the various states'

5 commercial codes governing the implied warranty of merchantability.

6 140. As a merchant of the Product, Defendants knew that purchasers relied upon them

7 to develop, manufacture, produce, sell, and distribute a kombucha beverage, as promised.

8 141. Defendants developed, manufactured, produced, sold, and distributed the Product

9 to consumers such as Plaintiff and the Classes. They knew that the Product would be used as a

10 kombucha beverage, as promised.

Il 142. Defendants specifically represented in their labeling of the Product that it is a

12 fermented kombucha beverage, as described herein.

13 143. At the time that Defendants developed, manufactured, sold, and/or distributed

14 the Product, Defendants knew the purpose for which the Product was intended and iinpliedly

15 warranted that the Product was of merchantable quality and was fit for its ordinary purpose - a

16 kombucha beverage with naturally fermented probiotics.

17 144. Defendants breached their implied warranties in connection with the sale of the

18 Product to Plaintiff and members of the Classes. The Product was not fit for its ordinary

19 purposes and intended use as a kombucha beverage, because the Product is pasteurized.

20 145. Defendants had actual knowledge that the Product was not true kombucha and

21 did not contain probiotics which were derived entirely from the kombucha fermentation process

22 as promised and thus was not fit for its ordinary purpose and Plaintiff therefore was not required

23 to notify Defendants of their breach. If notice is required, Plaintiff and the Classes adequately

24 have provided Defendants of such notice through the filing of this lawsuit.

25 146. As a direct and proximate result of Defendants' breach of implied warranties,

26 Plaintiff and other members of the Classes have been injured. Plaintiff and the other members

27 of the Classes would not have purchased the Product but for Defendants' representations and

28 warranties. Defendants misrepresented the character of the Product, which caused injuries to


Case No.

Plaintiff and the other members of the Classes because either they paid a price premium due to

2

the deceptive labeling or they purchased products that were not of a character and fitness as

3 promised and therefore had no value to Plaintiff and the other members of the Classes.

4

SEVENTH CAUSE OF ACTION

5

VIOLATIONS OF CONSUMER FRAUD LAWS

6

(By Plaintiff, on Behalf of Herself, the California Class, and Consumer Protection Class

7 against all Defendants and Does 1-100)

8



10

148. Plaintiff brings this Count individually under the laws of the state where she

11 purchased Product and on behalf of all other persons who purchased Product in states having

12 similar laws regarding consumer fraud and deceptive trade practices.

13

149. Plaintiff and each of the other members of the Classes are consumers,

14 purchasers, or other persons entitled to the protection of the consumer protection laws of the

15 state in which they purchased the Product.

16

150. The consumer protection laws of the State in which Plaintiff and the other

17 members of the Classes purchased the Product declare that unfair or deceptive acts or practices,

18

in the conduct of trade or commerce, are unlawfiul.

19

151. Forty states and the District of Columbia have enacted statutes designed to

20 protect consumers against unfair, deceptive, fraudulent, and unconscionable trade and business

21 practices and false advertising and that allow consumers to bring private and/or class actions.

22

These statutes are found at:

23 rm. Alabama Deceptive Trade Practices Act, Ala. Code §8-19-1 et seq.;

24 oo. Alaska Unfair Trade Practices and Consumer Protection Act, Alaska Code

25

§45.50.471 et seq.;

26 pp. Arkansas Deceptive Trade Practices Act, Ark. Code Ann. §4-88- 101 et seq.;

27 qq. California Consumer Legal Remedies Act, Cal. Civ. Code §1750 et seq., and

28

California's Unfair Competition Law, Cal. Bus. & Prof. Code §17200 et seq.;


Case No.

it. Colorado Consumer Protection Act, Cob. Rev. Stat. §6-1-101 a seq.;

2 ss. Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. §42-1 lOa ci seq.;

3 U. Delaware Deceptive Trade Practices Act, Del. Code fit. 6251 1 ci seq.;

4 uu. District of Columbia Consumer Protection Procedures Act, D.C. Code §28 3901

5 eiseq.;

6 vv. Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. Ann. §501.201 ci

7 seq.;

8 ww. Georgia Fair Business Practices Act, Ga. Code Ann. § 10-1-390 ci seq.;

9 xx. California Unfair and Deceptive Practices Act, California Revised Statues §480-

10 1 et seq., and California Uniform Deceptive Trade Practices Act, Maw. Rev. Stat.

11 §481A-leiseq.;

12 yy. idaho Consumer Protection Act, Idaho Code Ann. §48-601 ci seq.;

13 zz. Illinois Consumer Fraud and Deceptive Business Practices Act, 815 III. Comp.

14 Stat. Ann. 505/1 ci seq.;

15 aaa. Kansas Consumer Protection Act, Kan. Stat. Ann §50 626 ci seq.;

16 bbb. Kentucky Consumer Protection Act, Ky. Rev. Stat. Ann. §367.110 et

17 seq., and the Kentucky Unfair Trade Practices Act, Ky. Rev. Stat. Ann §365.020

18 ci seq.;

19 ccc. Louisiana Unfair Trade Practices and Consumer Protection Law, La. Rev.

20 Stat Ann. §51:1401 ci seq.;

21 ddd. Maine Unfair Trade Practices Act, Me. Rev. Stat. tit. 5 §205A a seq., and

22 Maine Uniform Deceptive Trade Practices Act, Me. Rev. Stat. Ann. fit. 10,

23 §1211 ci seq.,

24 ece. Massachusetts Unfair and Deceptive Practices Act, Mass. Gen. Laws ch.

25 93A;

26 fIT. Michigan Consumer Protection Act, Mich. Comp. Laws §445.901 ci seq.;

27

28


Case No.

4-

ggg. Minnesota Prevention of Consumer Fraud Act, Minn. Stat. Ann.325F.68

2

ci seq., and Minnesota Uniform Deceptive Trade Practices Act, Minn. Stat.

3

§325D.43 et seq.;

4

hhh. Mississippi Consumer Protection Act, Miss. Code Ann. §75-24-1 ci

5

seq.;

6

iii. Missouri Merchandising Practices Act, Mo. Rev. Stat. §407.010 et seq.;

7

jjj. Montana Unfair Trade Practices and Consumer Protection Act, Mont. Code Ann.

8

§30-14-101 et seq.;

9

kkk. Nebraska Consumer Protection Act, Neb. Rev. Stat. §59-1601 et seq., and

10

the Nebraska Uniform Deceptive Trade Practices Act, Neb. Rev. Stat. §87-301 c/

11

seq.;

12

111. Nevada Trade Regulation and Practices Act, Nev. Rev. Stat. §598.0903 ci seq.;

13

nmun. New Hampshire Consumer Protection Act, N.H. Rev. Stat. §358-A:1 et

14

seq.;

15

nnn. New Jersey Consumer Fraud Act, N.J. Stat. Ann. §56:81 et seq.;

16

000. New Mexico Unfair Practices Act, N.M. Stat. Ann. §57 12 1 et seq.;

17

18

ppp. New York Deceptive Acts and Practices Act, N.Y. Gen. Bus. Law §349

19

et seq.;

20

qqq. North Dakota Consumer Fraud Act, N.D. Cent. Code §51 1501 et seq.;

21 rrr. Ohio Consumer Sales Practices Act, Ohio Rev. Code Ann. § 1345.02 and

22

1345.03; Ohio Admin. Code §109:4-3-02, 109:4-3-03, and 109:4-3-10;

23 sss. Oklahoma Consumer Protection Act, OkIa. Stat. tit. 15 §751 c/seq.;

24

ttt. Oregon Unfair Trade Practices Act, Ore. Rev. Stat §646.608(e) & (g);

25

uuu. Rhode Island Unfair Trade Practices And Consumer Protection Act, R.I.

26

Gen. Laws §6-13.1-1 et seq.;

27 vvv. South Carolina Unfair Trade Practices Act, S.C. Code Ann. §39-5-10 et

28

seq.;


Case No.

1

2

3

4

5

6

7

8

9

10

11 I apply.

www. South Dakota's Deceptive Trade Practices and Consumer Protection

Law, S.D. Codified Laws §§37 24 1 et seq.;

xxx. Tennessee Consumer Protection Act, Tenn. Code Ann. §47-18-101 et

seq.;

yyy. Vermont Consumer Fraud Act, Vt. Stat. Ann. fit. 9, §2451 et seq.;

zzz. Washington Consumer Fraud Act, Wash. Rev. Code § 19.86.010 et seq.;

aaaa. West Virginia Consumer Credit and Protection Act, West Virginia Code

§46A-6-101 et seq.; and

bbbb. Wisconsin Deceptive Trade Practices Act, Wis. Stat. §100.18 et seq.

152. The Product constitutes a product to which these consumer protection laws

12

153. In the conduct of trade or commerce regarding its production, marketing, and

13 sale of the Product, Defendants engaged in one or more unfair or deceptive acts or practices

14

including, but not limited to, uniformly representing to Plaintiff and each member of the Classes

15

by means of their packaging and labeling of the Product that it is a kombucha beverage that was

16 unadulterated with pasteurization, as described herein.

17

154. Defendants' representations and omissions were false, untrue, misleading,

18

deceptive, and/or likely to deceive.

19

155. Defendants knew, or should have known, that theft representations and

20 omissions were false, untrue, misleading, deceptive, and/or likely to deceive.

21

156. Defendants used or empioyed such deceptive and unlawful acts or practices with

22

the intent that Plaintiff and members of the Classes rely thereon.

23

157. Plaintiff and the other members of the Classes did sorely.

24

158. Plaintiff and the other members of the Classes purchased the Product produced

25

by Defendants which misrepresented the characteristics and nature of the Product.

26

159. Plaintiff and the other members of the Classes would not have purchased the

27

Product but for Defendants' deceptive and unlawful acts.

28

160. As a result of Defendants' conduct, Plaintiff and the other members of the


Case No.

(

I

Classes sustained damages in amounts to be proven at trial.

2 161. Defendants' conduct showed complete indifference to, or conscious disregard

3

for, the rights and safety of others such that an award of punitive and/or statutory damages is

4 appropriate under the consumer protection laws of those states that permit such damages to be

5 I sought and recovered.

6

EIGHTH CAUSE OF ACTION

7

NEGLIGENT MISREPRESENTATION

S

(By Plaintiff, on Behalf of Herself, and the California Class against all Defendants and

9

Does 1-10)

10



12

163. In making representations of fact to Plaintiff and the California Class members

13 about Health-Ade Kombucha, Defendants failed to fulfill their duty to disclose the material

14

facts alleged above. Such failure to disclose on the part of Defendants amounts to negligent

15 misrepresentation.

16

164. Plaintiff and the other members of the California Class reasonably relied upon

17 such representations and omissions to their detriment.

18

165. Plaintiff and the other members of the California Class, as a direct ad proximate

19 cause of Defendants' negligent misrepresentations, reasonably relied upon such

20 misrepresentations to their detriment. By reason thereof, Plaintiff and the other Class members

21

have suffered damages in an amount to be proven at trial.

22

23

PRAYER FOR RELiEF

24

WHEREFORE, Plaintiff prays for judgment and relief against Defendants as follows

25

(cause of action number three is excluded from the below to the extent the remedy includes

26

monetary damages):

27

28


Case No.

I

A. That the Court cerb' the nationwide Class and the California Class under

2

California Civil Code §382 and appoint Plaintiff as Class Representative and her attorneys as

3

I Class Counsel to represent the members of the Classes;

4

B. That the Court declare that Defendants' conduct violates the statutes referenced

5 therein;

6

C. That the Court preliminarily and permanently enjoin Defendants from

7 conducting their business through the unlawful, unfair, or fraudulent business acts or practices,

8 untrue, and misleading labeling and marketing and other violations of law described in this

9 Complaint;

10

D. That the Court Order Defendants to conduct a corrective advertising and

II I information campaign advising consumers that the Product does not have the characteristics,

12 Fuses, benefits, and quality Defendants have claimed;

13

E. That the Court Order Defendants to implement whatever measures are necessary

14 Ito remedy the unlawful, unfair, or fraudulent business acts or practices, untrue and misleading

15 advertising, and other violations of law described in this Complaint (excluded from this request

16

is cause of action number three to the extent the remedy includes monetary damages);

17

F. That the Court Order Defendants to notifS' each and every individual and/or

18

business who purchased the Product of the pendency of the claims in this action in order to give

19 such individuals and businesses an opportunity to obtain restitution from Defendants (excluded

20

from this request is cause of action number three);

21

G. That the Court Order Defendants to pay restitution to restore to all affected

22 persons all funds acquired by means of any act or practice declared by this Court to be an

23 unlawful, unfair, or a fraudulent business act or practice, untrue or misleading labeling,

24 advertising, and marketing, plus pre- and post-judgment interest thereon (excluded from this

25 request is cause of action number three);

26

H. That the Court Order Defendants to disgorge all monies wrongfully obtained and

27 all revenues and profits derived by Defendants as a result of its acts or practices as alleged in

28

this Complaint (excluded from this request is cause of action number three);

Ma Class Action Complaint

Case No.

r

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

1. That the Court award damages to Plaintiff and the Classes (excluded from this

request is cause of action number three);

The common fund doctrine, and/or any other appropriate legal theory (excluded

from this request is cause of action number three); and

that the Court grant such other and further relief as may be just and proper

(excluded from this request is cause of action number three to the extent the remedy includes

monetary damages).

DATED: October 4, 2017 BEADLEY/GROMBACHER, LLP

By: Marcus J. Bradley, Esq. Kiley Lynn Grombacher, Esq. Attorneys for Plaintiff

JURY DEMAND

Plaintiff demands a trial by jury on all causes of action so triable.

DATED: October 4, 2017

BRADLEY/GROMJ3ACHER, LLP

By: Marcus J. Bradley, Esq. Kiley Lynn Grombacher, Esq. Attorneys for Plaintiff

-41-

Class Action Complaint

Case No.

ArrORNEY OR PAfiTY WITHOUT ATTO4EV (Ptme, Sate air mvrtha4 .tess): Ki!ey L. Grombacher, Esq. SBN: 245960 BRMLEY GROMBACI-IER, LLP 2815 Towasgate Road, Suite 130, Wesliake Village, CA 91361

- IELEPHaJENO.:805-2?O-7100 FAXt4O.:805-270-7589

FOR COURT USE OVL V

VEtIrUF1A SUPEfli)R COURT

FU .ED Al lUtlItY -Vfl rr.aaw;rmma nrenncr

OCT 0 4 ZO7 SUPERIOR COURT OF CALIFORNIA COUNTY OFVENTURA STPEETAbORESS:800 South Victoria Avenue WiliNG ADDRESs: 800 South Victoria Avenue MICr4AL&, U. PLANEr

Executive Ogicer and Clerk CITYANOZIP CoDE: Ventura, 93009 Deputy

BRN4QI NAME: Ventura Rail of Justice CASE NAME:BRENNERV.KEVITA

ALBERT VILLEGAS JR. CIVIL CASE COVER SHEET

[X] UnlImIted C Limited Complex Case Dsignation

5201700502340cUFRA C Counter r: Joinder (Amount (Amount OOE:

demanded demanded Is Filed with first appearance by defendant exceeds 325.0001 $25.000 or less) (Cal. Rules of Ccwt, rule 3402) DEPT:

Check one box below for the case type that Auto Tort C Auto(22) C Uninsured motorist (46) Other PIJPDJWD (Personal lnlury/Preperty Damage)Wrengtul Death) Tort C Asbestos (04) C Product liabilIty (24) C Medical malpractice 45)

C Other PVPD/WD (23) Non-Pi/PD/WD (Other) Tort C Business tort/unfair business practice (07) C CMI rights (08) C Defamation (13)

Fraud (16) C Intellectual property (19) C Professional negligence (25) El Other non-P1IPDMD tort (35) Em leyrnent

Wrongful termination (36)

rest describes this case: Contract C Breach of contmctMacranty (06) C Rule 3.740 cotedions (09) C Other collections (09) E] Insurance coverage (18) C Other contract (37) Real Property C Eminenl domairvinverse

condemnation (14) C Wrongful eviction (33)

C Othet real property (26)

Unlawful Detalner C Commercial (31) C ResidentIal (32)

C Orugs(38) Judicial Review C Asset forfeiture (05) C Petition re: arbitration award (II)

C Writ of mandate (02)

Provisionally Complex Clvii LItigation (Cal. Rules of Court, rides 3.400-3.403)

C Antitrust/Trade regulation (03) C Construction defect (10) EJ Mais tort (40)

C Seairlties litigation (28) C Environmental/Toxic tort (30) (JI Insurance ooveiaOe claims arising From the

above listed provisionally complex case types (41)

Enfercemoni of Judgment

C Eniorcement of judgment (20)

Mlscdlaneous CMI complaint

C RICO (27) [Li Other complaint (not specified above) (42)

MIscellaneous Civil PetitIon C Partnership and corporate govemarce (21) C Otherpelition (not specified above) (43)

2. This case L2J is L-J is not complex under rule 3.400 of the California Rules of Court IF the case is complex, mark the factors requirIng exceptional Judicial management: a. = Large number of separately represented panics d. Large number of witnesses

b. [3] Extensive motion practice raIsing difficult or novel e. C Coordination with related actions pendIng in one or more courts issues that will be time-consuming to resolve in other counties, states, or countrIes, or In a federal court

c. El Substantial amount of documentary evIdence I. C substantial postjudgment judicial supervision

3. Remedies sought (check all that apply): a.] monetary b. [] nonmonetary; declaratory or Injunctive relief c. Cpunitwe

4. Number of causes of action (specify): S. This case ills C is not a class action suit. 6. If there are any known related cases, file and serve a notice of related case. (You may use (am, CM-015)

Date:October 4,2017

Plaintiff must file this cover sheet with the first paper filed In the action or proceeding (except small claims cases or cases filed under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220.) FaIlure to file may result in sanctions. File this cover sheet in addition to any cover sheet required by local court rule. If this case is complex under rule 3,400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on all other parties to the action or proceeding. Unless this Is a collectIons case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes on1 .

romAedndauwthe CIVIL CASE COVER SHEET Jzot CcucJ S camomla cw. CM.OlO lAw.. Jur1 I.

CM-01O INSTRUCTIONS ON HOW TO COMPLETE THE COVER SHEET

To Pintitfs and Others Filing First Papers. It you are filing a first paper (for example, a complaint) In a civil case, you must compltite and file, along with your first paper, the C/id! Case Cover Sheet contained on page I. This Information will be used to compile e2atistics about the types and humbers of cases filed. You must complete Items I through 6 on the sheet. In item I, you must check one box for the case type that best describes the case. If the case fits both a general and a more specific type of case listed in Rem 1, check the more speclfló one. If the case has multiple causes of action, check the box that best indicates the primary cause of action. To assist you in completing the sheet, examples of the cases that belong under each case type in item I are provided below. A cover sheet must be filed only with your initial paper. Failure to file a cover sheet with the first paper filed In a cMl case may subject a party, Its counsel, or both to sanctions under rules 2.30 and 3.220 of the California Rules of Court To Parties In Rule 3.740 Collections Cases. A*collections case" under rule 3.740 is defined as an action for recovery of money owed In a sum stated to be certain that is not more than $25,000, exclusive of interest and attorney's fees, arisIng from a transaction in which property, services, or money *as acquired on credit. A collections case does not include an action seeking the following: (I) tort damages, (2) punItive damages, (3) recovery of real property, (4) recovery of personal property, or (5) a prejurnent will: of attachment. The identification of a case as a rule 3.740 collections case on this form means that it will be exempt from the general time-forservice requirements and case management rules, Unless a defendant files a responsive pleading. A rule 3.740 collections case will be subject to the requIrements for service and obtaining a judgment in rule 3.740. To Parties in Complex Cases. In complex cases only, parties must also use the CM! Case Cover Sheet to desIgnate whether the case is complex. If a plaintiff believes the case is complex under rule 3.400 of the California Rules of Court, this must be Indicated by completing the appropriate boxes in items 1 and 2. If a plaintiff designates a case as oomplóx, the cover sheet must be served with the complaint on all parties to the action. A defendant may file and serve no later than the time of its first appearance a joinder In the plaintiffs designation, a counter-designation that the case Is not complex, or, if the plaintiff has made no designation, a designation that the case is complex. CASE TYPES AND EXAMPLES Auto Tort Contract Provisionally Complex Civil LItIgation (Cal.

Auto (22)-Personal Injury/Property Breath of ComraclMarranty, (06) Rules of Court Rules 3.400-3.403) Damageronqful Death Breach of Rentat&ease Antitrust/Trade Regulation (03)

UrfinsuredMototisl (46) (lIthe Contract (not unlawtul detalrier Construction Detect (10) case involves an uninsured or wrongful eviction) Claims Involving Mass Tort (40) motorist claim subject to ContraclMananly Breath-Seller Securities Litigation (28) àrbltrelfon, check this I/em Plaintiff (not fraud or negligence) Environmental/Toxic Toil (30) instead oF Auto) Negligent Breath of Contract/ Insurance Coverage Claims

Other PI/PD/WD (Personal lr4wy! Warranty (arising from provisionally complex Property Damage/Wrongful Darji) Other Breath of Contract/Warranty case type listed above) (41) Tort Collections (e.g., money owed, open Enforcement of Judgment

Asbestos (04) book accounts) (09) Enforcement of Judgment (20) Asbestos Property Damage Cotleclion Case-Seller Plaintiff Abstraci of Judgment (Out of

County) Asbestos Personal Injury! Other Promissory Note/Collections Case Confession of Judgment (non-S Wrongful Death

Product Liability (not asbestos or Insurance Coverage (not provisionally domestic relations) toxiclenvironn'enlai) (24) cdu7PJ) (18) Sister Stale Judgment

Medical Malpractice (45) Auto Subrogation Administrative Agency Award Medical Malpractice- Other Coverage (not unpaid taxes)

Phyaldans & Surgeons Other Contract (37) Petitio&Cerhticaton of Entw of Other Professional Health Care Contractual Fraud . Judgment on Unpaid Taxes

Malpractice Other Contract Dispute Other Enforcement of Judgment Case Other Pt/PD/WV (23) Real Property

Premises Liability (e.g.. slip Eminent Ocniaiwlnverse Mlscollarioous Civil ComplaInt

and fall) Condemnation (14) RICO (27) Intentional Bodily Injury/PD/WV Wrongful Eviction (33) Other Comptainl (not spec/led

above) (42) (e.g., assault, vandalism) Other Real Property (e.g., quiet title) (26) Dedaratory Relief Only Intentional Infliction of Writ of Possession of Real Properly Injunctive Relief Only (non. Emotional Distress Mortgage Foreclosure harassment) Negligent Infliction of Quiet Title Meeflanics Lien Emotional Distress Other Real Property (not Ct7ltllOIlt Other Commercial Complaint Other P1/PD/W0 domain, land!o,rbtenant. or Case (non-to#Jnon-complox) Non.PIIPD(Wt) (Other) Tort foreciosure) Other Civil Complaint

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(not medical or legal) Case Matter Petition for Relief From Late Other Non.Pt/PO/WD Tort (35) Writ-Other Limited Court Case

. Claim

Employment Review Other Civil Petition Wrongful Terntination (36) Other Judicial Review 139) Other Employment (IS) Review of Health àfflcer Order

Notice of Appeal-Labor Commissioner Apoeals

Ct#OiOlRev.July 1.20071 CIVIL CASE COVER SHEET Pa9e22

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I BRADLEY GROMIBACHEE, LLP I Marcus J. Bradley, Esq. (SBN 174156) I Kiley L. Grombacher, Esq. (SBN 245960) VENTURA

SUPERIOR COUFIT I Taylor L. Emerson, Esq. (SBN 225303) FILE 1) 12815 Townsgate Road, Suite 130 I Westlake Village, California 91361 OCT 052011 I Telephone: (805) 212-5124 I Facsimile: (805) 270-7589 MICHAEL D. PLANET I mbradleybrad1eygrombacher.com txecui'vo Cniiu., 0 iu

I [email protected] bY:_________________ temersonbradleygrombaeher.com DEBRA RAMOS

Attorneys for Plaintiff

SUPERIOR COURT FOR THE STATE OF CALIFORNIA

COUNTY OF VENTURA

EMMA BRENNER, individually and on

CASE NO. 562017-00502340cupR behalf of all others similarly situated,

DECLARATION OF PLAINTIFF EMMA BRENNER RE: PROPER COUNTY FOR CONIMENCEMENT AND TRIAL OF A CLAIM UNDER THE CONSUMERS LEGAL REMEDIES ACT

[California Civil Code § 1780(d)J

Plaintiff,

V.

KEVITA, INC., a California company; PEPISCO, INC., a North Carolina company.; and DOES I through 10, inclusive,

Defendants.

on of Emma Brennerrei County for Commencement and Trial of a Claim Under the Consumer Legal Remedies Ace

Case No.

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DECLARATION OF EMMA BRENNER

I, Emma Brenner, state and declare as follows:

1 have personal knowledge of the matters stated herein except as to those matters

I stated on information and belief, which I believe to be true.

If called and sworn as a witness, I could and would testify truthfully and

competently to the matters stated herein.

I am the named plaintiff in the above-captioned action and submit this

I declaration pursuant to California Civil Code section 1780(c).

I currently reside in Agoura Hills, California, located in Los Angeles County,

I California.

1 am informed and believe that defendant KeVita, Inc., is headquartered in Ojai

I California, located in the County of Ventura. Moreover, both defendants conduct business in all

counties in California., including Ventura County.

I purchased KeVita Masterbrew Kombucha beverages at retail locations in

Ventura County, California. Defendant does business in the County of Ventura and the

transaction giving rise to this litigation occurred in Ventura County. Ventura County is within

the jurisdiction of the United States Superior Court for the County of Ventura. Accordingly,

United States Superior Court for the County of Ventura, is the proper place for the trial of this

action under California Civil Code section 1780(c), and this action is properly commenced in

that Court.

I declare under penalty of perjury, under the laws of the State of California and the

United States of America, that the foregoing is true and correct.

Executed this -b day of October, 2017, at Agoura Hills, California.

7 1 /l/1 2 - (/' 'Emma Brenner

-2- Declaration of Emma Brenner re: County for Commencement and Trial of a

Claim Under the Consumer Legal Remedies Ace Case No.

Documents

BRADLEY GROMBACHIER, LLP