I

2
3

ALEXANDER M. SCHACK, Esq., Bar No. 99126

(alexschack@amslawo f0 ce.corn)
NATASHA NARAGHIEsq., Bar No 284711
(natashanaragln@atnslawofflce.corn)
LAW OFFICES OF ALEXANDER M, SCHACI<
16870 West Bernardo Drive, Suite 400
San Diego, CA 92127

Tel: (858) 485-6535 Fax: (858) 485-0608

5

GEOFFREY J. SPRETER, Esq., Bar No 257707

6
7
8

(spreterlegalservices@gmail.corn)
SPRETER LEGAL SERVICES, APC
601 3" Street
Coronado, CA 92118
Telephone: 619-865-7986
Attorneys for Jeanne Burns,
individually and on behalf of all others similarly situated

10

SUPERIOR COIJRT OF THK STATE OF CALIFORNIA

11

FOR THK COUNTY OF SAN BIKGO

CKNT~IL MVISION
13

Jeanne Burns, individually

others similarly situated,

and on behalf

Plaintiffs,

of all ) CASE NO:

) CI,ASS ACTION
)
) 1.) Violation of Consumers

16
Tristar Products, Inc., a New Jersey Corporation,
and Does 1 through 50.

18
Defendant

20
21

egal
Act
California
CivB
Code rI
Remedies
)
er seq.;
1750,
)
Violation oi the Unfair Competition
) 2.)
I aw - Business and Professions Code tI
) 17200, er seq.;
) 3.) Violation of the Unfair Competition
) Law - Business and Professions Code II
) 17500, er seq.;
) 4.) Fraud by Omission;
5.) B~each of Imphed Warranty of
Mer chantabBity;
6.) Breach of Imphed. Warranty of Fitness

)
)

CI,ASS ACTION COIVIPLAINT AND JURY DEMAND

Plaintiff Jeanne Buins ("Plaintiff"), on behalf

and demanding

and belief as follows:

INTRODIJCTION

l.

Tristar Products, Inc.

to Plaintiff and Class members

expandable

and all others similarly situated,

trial by jury, complain and allege upon information

of herself

garden

("Defendant" ) designed,

and sold a garden hose

Hose. Thc Flex-Able Hose was an

called the Flex-Able

hose that was marketed

marketed,

as being lightweight

and easy to store.

It was

advertised as possessing the ability to expand and contract without kinking like some traditional

garden hoses.
g

2.

At the time

of sale to Plaintiff

and the Class, the Flex-Able Hoses contained

inherent defect causing them to leak and/or burst, among other things. Many

on the consumer's

rubber, reinforced with an internal web

11

of fibers

14

dragged across lawns and bushes, the Flex-Able Hoses rely on a thin elastic-like internal tube

of

its design, the Flex-Able Hose has a

propensity to leak and burst.

3.

Defendant" s marketing

believe that they are purchasing

15

of thick

being stepped on and

and designed to withstand

that is covered by a. thin cloth sheath. As a result

13

of the hoses leaked

garden hose, which is usually made

first use. Unlike a traditional

an

and packaging

of the Flex-Able Hose leads consumers to

a durable and strong garden hose. For example, the Flex-Able

Hoses were advertised as having "a tough double wall construction...." and being "'designed like

16

a fire-hose for speed storage and strength, to last a really Iong r yrre." Defendants, however, fail

17

to inform consumers that they are in fact purchasing a thin elastic-like hose that is prone to leaks.

18

4.

Defendant knew or should have known that the Flex-Able Hoses were defective

and not fit for their intended

landscaping.

20

23

Defendant

of being
actively

Plaintiff and the Class members at the time

5.
22

Nonetheless,

purpose

Despite

receiving

used to maintain residential

concealed

of their

homes, gardens, and

and failed to disclose this fact to

purchases.

notice and hundreds

of customer

complaints,

Defendant

continues to market and sell the Flex-Able Hoses both online and through various retail stores.

6.

As a result

of the

inherent defect in the Flex-Able Hose and Defendant's

failure to

disclose the defect to consumers, Plaintiff and members of the Class have suffered damages. As
3

such, they now seek relief from this Court.

PARTIES
7.
6

California.

Plaintiff Jeanne Burns is a California citizen who resides in San Diego County,

Plaintiff reasonably

shortly after her purchase. Had Plaintiff known that the Flex-Able Hose was a flimsy

hose with a propensity to leak and rupture, she would not have purchased the product. As such

Plaintiff and members

of the Class

11
which

as a result

of purchasing Defendant's product.

also suffered damages by purchasing

the Flex-Able Hoses,

had the true facts about the Flex-Ab/e

they would not have purchased

Hoses been

disclosed prior to their purchases,

13
14

website.

expected that the Flex-Able Hose would be durable and strong, and that it

Plaintiff lost money and suffered injury-in-fact

12

interactive

would last a long time. The hose, however, was not strong and durable. Instead, it leaked and
ruptured

a Flex-Able Hose &om Defendant's

Ms. Burns purchased

8.
place

Defendant

of business

Tristar Products, Inc. is a New Jersey corporation

with its principle

in Fairfield, New Jersey. It is a full service direct response television marketing

company. As part

of its

business, the company sold Flex-Able Hoses to consumers in the State

California through its interactive website and extensive distribution

of

network and retail contacts

16
which include

17
18

marketing

areas

major retail stores like Target, among others. Using its extensive

numerous

with retailers, Defendant

relationships

of California retail stores.

deceive consmners in the State

9.

20

representative,

The

true

unlawful

actions to

corporate,

associate,

named herein as DOES 1-50 are unknown

to Plaintiff

Defendant

undertook

the aforementioned

of California.

names

or otherwise

contracted to place the hose in highly visible

and

capacities,

of defendants

whether

individual,

at this time, and are therefore sued by such Iictitious names pursuant to Code
$

of Civil Procedure

474, Plaintiff will amend this Complaint to allege the true names and capacities of DOES I

23

CLASS ACTION COMPLAiNT AND JURY DEMAND

through

of law

legally responsible for the violations

10.

trial courts.

11.

to

Article VI, $ 10. This lawsuit is a cause not given by statute to other

This Court has jurisdiction pursuant to California Business and Professions Code

17200 et seq., Civil Code

alleged herein

over all causes of action asserted herein pursuant

This Court has jurisdiction

the Califoinia Constitution,

Each of the DOES 1-50 is in some manner

50 when Plaintiff has such information.

) 1780 and

Venueisproperinthis

other provisions of California law

Courtbecause

in San Diego

Plaintiff resides

County,

the Flex-Able Hose for personal use at her residence in San Diego
California
Attached to this Complaint as Exhibit A is a declaration fiom Plaintiff attesting to facts

California and purchased

County.

establishing

12.

Civil Code section 1780(d).

proper venue in this Court pursuant to

Defendant

engaged

in a marketing

campaign

using,

other thingsan

among

11
infomercial

12

and an interactive website for the Flex-Able Hose, which reached consumers

Diego County and throughout

in San

with retail stores in

California. In addition, Defendant partnered

California to market and sell the Flex-Able Hose to California consumers. These actions caused

14

significant

Defendant's

sales

of

the product in San Diego County and throughout

receipt

of

substantial

compensation.

Accordingly,

this

California,
Court

and led to

has

personal

jurisdiction over Defendant.

16
17
18

19

20

13.
Procedure

5)395

Professions Code

14.

and

15.

this Court has jurisdiction

395.5, California

to California

Civil Code $ 1780, and California

Code of Civil
Business

and

This Complaint is not based on federal law and seeks relief under California Eaw.

for each member

of

the general public is less than $ 75,000.00.

the aggregate iuuount in contmversy in this action is less than $ 5,000,000.

Pursuant

to Civil Code

tj

1780 and Business and Professions Code $ 17200 et

seq., Plaintiff brings this action individually

23

pursuant

(1720217203.

The amount in controversy

Additionally,

21

In addition,

all those similarly situated.

and on behalf

of the California

This action may be properly maintained

general public and

as a California class action,

CLASS ACTION COMPI,AINT AND JIURY DEMAND

to the provisions

pursuant

of I; 382 of the

1781 because there is a well-defined

3

California Code

of Civil Procedure

of interest

connnunity

and Civil Code

and the proposed

in the litigation

class is easily ascertainable.

FACTUAIL AlLMGATIONIS

16.

Defendant marketed and distributed the Flex-Able Hoses both online and through

retail outlets in California. Upon information

and belief, several thousand

Flex-Able Hoses were

sold in California during thc class period.

17.

The Flex-Able Hoses are inherently

break and leak often. Defendant

prone to rupturing

18.

defective in that their design leads them to

of

knew that the hoses, because

thei~ inherent

design, were

and leaking.

The Flex-Able Hose was marketed

parficular, the Flex-Able Hose was advertised

as a durable

as having

"a tough

and strong

garden

hose. In

double wall construction...."

11
to last a. really long time."

and being '"designed like a fire-hose for speed, storage and strength,

12

These statements appeared on the Flex-Able Hose's packaging, on the product's website, and in
the infomercial. To emphasize the strength and durability

14

of the Flex-Able Hose,

the Flex-Able

Hose is shown being run over by a fire truck. This image appears on both the Flex-Able Hose's
packaging

and in the infomercial.

Plaintiff viewed this infomercial

prior to her purchase

and

believed that the Flex-Able Hose would be strong and would last a long time based upon

16
Defendant's representations.

17
18

19.

it is not fit for the ordinary purpose of a garden hose, as it is prone to leaks and breakage.

20.

19
20
21

The product, however, does not last a long time, and is not built strong. Moreover,

Hundreds,

if

not

thousands,

of

purchasers

of

the

Flex-Able

Hose

have

experienced problems with the Flex-Able Hoses leaking and rupturing. Complaints posted on the
internet demonstrate

that the defect is widespread.

and user comments

on Scambook.corn

In fact, there are hundreds

and Amazon.corn

about Defendant

Hose.

CI.ASS ACTION COMPLAINT AND JURY DEMAND

of negative

reviews

and the Flex-Able

Scambook.corn posters have written:

"all 4 hoses sprung leaks immediately upon using. Customer service is no help. They
won't reimburse us. We are in our mid-80's and feel completely victimized."
"When first connected hose the plastic on and off switch bmke, then a few days later
when tumed on a big bubble came up in the hose like a balloon and burst, total waste of
money, would very much like to have my money back, definitely don't want another one
of these hoses, will go back to regular water hose."

"I purchased

the 50 foot buy one get one fi-ec I watered my lawn twice before it popped
in the middle and the nozzle also leaked bad. I tried the other hose with the same results. I
would appreciate anything you can do to resolve this
scam.*'mong

other things, Amazon.corn

ll

reviewers have stated:

"This hose is a piece of junk! The outer layer is cloth. The inner tube popped like
a balloon on both the hoses I bought after a couple uses. Don't waste your money.
Seems to good to be true because it is!"
C

"It broke and leak alter 10 minutes use, totally not acceptable.
recommend this product to anyone at al!.**

I will not

13

21.
and through

15

have reported the inherent

defect in the hoses to Defendant

directly

its retail partners. Defendant is fully aware of the inherent defect in the Flex-Able

Hose. During the Class period, Defendant actively concealed the existence and nature of the
defect from Plaintiff and members

inherent

17

Customers

of

the Class at the time

of

their purchases.

Specifically, Defendant has:

a.

failed to disclose, at and aIIer the time

defects

of the Flex-Able Hose,

of purchase,

any and all known material

including the propensity

for the Flex-Able Hoses

to leak and burst;

failed to disclose at the time

of purchase

that the Flex-Able Hoses were inherently

defective and were not Iit for their intended purpose, and

23

CLASS ACTION COMPLAINT AND JURY BKMAN9

failed to disclose or actively concealed the fact that the Flex-Able Hoses were

defective, despite the fact that Defendant knew prior to marketing

inherently

product and learned

and distributing

of such defects

the product.

Plaintiff brings this action on behalf of herself and other members

23.

13

15

Class to expend money to

repair or replace the hoses.

of the

has caused Plaintiff and members

Defendant

shortly after it began selling

from consumers

22.

the

of the Class

defined as:
All California residents during the period January 1, 2012 until the present who
purchased a Flex-Able Hose in California. Specifically excluded from the
Plaintiff Class are the Defendants herein, officers, directors or employees of
Defendants, and any entity in which the Defendants have a controlling interest,
the agents, affiliates, legal representativesheirs, attorneys at law, attorneys in fact
or assignees of the Defendants, and any federal, state or local governmental
entity. Also specifically excluded is any justice, judge, judicial officer, court
personnel or juror assigned to any part of this case.

24.

to Civil Code

Pursuant

II

1780 and Business and Professions Code $ 17200 et

on behalf

seq., Plaintiff brings this action individually,

of the

general public, and on behalf

of all

16
individuals

similarly situated.

25.

This action may be properly

18

provisions

19

there is a well-defined

of tj 382 of the

California

community

Code

maintained

as a class action, pursuant

of Civil Procedure

of interest

in the litigation

and Civil Code $

to the

1781 because

and the proposed class is easily

ascertainable.

26.

Xumerosltv:

The Plaintiff Class is so numerous

that individual

joinder of all

21
members is impractical

under the circumstances

of this case. While

the exact number

of Class

22
members is unknown

to Plaintiff at this tune, based upon the amount

of trade

23

CLASS ACTION COMPLAINT ANB JURY BKMANB

and commerce in

the garden product industry,

thousands

believes that the Class includes many thousands

of dollars

worth

Plaintiff is informed and believes that Defendant sell hundreds

of Flex-Able

Hoses annually in California. Plaintiff is informed and

of members.

Common Ouestions of Fact and Law Predominate:

5

exist as to all members

only individual

of the Class. These

class members.

of

Common questions

questions predominate

of law or fact

over the questions affecting

These common legal or factual questions include:

of the

a.

Whether Defendant knew

b.

Whether Defendant fraudulently

inherent defect in its Flex-Able Hoses;

concealed from or failed to disclose to Plaintiff and the

Class the inherent defect in its Flex-Able Hoses;

10

c.

Whether Defendant had a duty to Plaintiff and the Class to disclose the inherent defect in
its Flex-Able I-loses;

d.

Whether the facts concealed or not disclosed by Defendant are material;

e.

Whether,

as a result of Defendant's

concealment

or nondisclosure

of

material

facts,

13
Plaintiff and the Class acted to their detriment by purchasing Flex-Able Hoses marketed
by Defendant;

15

f.

Whether Defendant

engaged in unfair competition

or unfair deceptive acts or practices

when it concealed and or failed to warn Plaintiff and Class members

17

constitutes

21

the inherent

defects in its Flex-Able Hoses;

Whether

20

of

Defendant's

conduct in marketing,

a violation of the Consumers

selling, and distributing

Flex-Able Hoses

Legal Remedies Act, California

Civil Code

section 1750 et seq.;

Whether Defendant's

conduct in marketingselling,

constitutes a violation

of the

and distributing

Flex-Able Hoses

Unfair Competition Law, California Business dr Professions

Code section 17200 et seq.;

CLASS ACTION COMPLAINT AND JURY DEMAND

i.

Defendant's

Whether

constitutes

condui;t in marketing,

a violation

of California's False

Flex-Able Hoses

selling and distributing

Advertising

Law, Califonua

Business

d'r

Professions Code section 17500 et. seq.;

j.

Whether Defendant breached the implied warranty

of merchantability

by selling garden

hoses with known defects;

Whether Defendant breached the implied warranty

of fitness by selling garden hoses with

known defects;

Whether

members

conduct and,
determining

10

m.

if so,

of

the Class have sustained

damages

of Defendant's

as a result

formula to be applied in

what is the proper measure and appropriate

such damages;

Whether Defendinit should be ordered to disgorge, for the benefit

of the

Class, all or part

of the ill-gotten profits it received from the sale of defective Flex-Able Hoses, or to make
full restitution to Plaintiff and the members

13

Tvnlcalitv;

of the Class.

Plaintiff s claims are typical of the claims of the Class, in that Plaintiff was a

consumer who purchased

a Flex-Able Hose in the State

of California

garden hose. Plaintifp s claims arise from the same practices and course

to the claims

17

of the Class

Adeuuacvt

Plaintiff is an adequate representative

of the Class

19

counsel competent and experienced in conducting

her counsel will adequately protect the interests

adjudication

23

of this

that give rise

of the Class because

her interests do

members she seeks to represent, and she has retained

not conflict with the interests

Sunerioriitvt

of conduct

as a

members and are based on the same legal theories.

1g

21

that was marketed

complex class action litigation.

Plaintiff and

of the Class.

A class action is superior to other available means for the fair and efficient
dispute. The damages suffered by each individual

be relatively small, especially given the relatively small cost

CLASS ACTION COMPLAINT

AiNB

Class member likely will

of the hoses

.IURV BKVilANB

at issue and the burden

of

of the complex

necessitated

by Defendant's

iuid expense

conduct. Thus, it would be virtually impossible for the Class members individually

redress the wrongs done to them.

actions, it would still not be preferable to class-wide litigation.

potential

fewer management

scale, and comprehensive

11

individual

for inconsistent

27.

prosecution

if the

difficulties

and provides

to effectively

Class members could afford individual

Individualized

actions present thc

By contrast, a class action presents far

or contradictory judgments.

the benefits

of

single adjudication,

economies

of

supervision by a single court.

Plaintiff, on behalf

realleges each

Moreover, even

litigation

of the foregoing

of herself

and all consumers

of this

paragraphs

Complaint as

similarly

if set

situated, repeats and

forth in fulk

13

28.

Plaintiff and Class members are consumers who purchased the Flex-Able Hoses.

14

29,

By failing to disclose and concealing the Flex-Able Hose*s defect, Defendant

15

violated Civil Code Section 1770(a), as it represented

that it did not have and that product was

16

was

Defendant's

of the
20

of a particular

standard,

style, quality or grade when it

of another {See Civil Code 1770{a)(5)(7)).

30.

18

that its Flex-Able Hose had characteristics

Defendant's

unfair or deceptive acts or practices, which occurred repeatedly

trade or business, were capable

of deceiving,

and did deceive, a substantial

in

portion

purchasing public.

31.

Defendant had a duty to disclose the defective nature

of the Flex-Able Hoses to

the Class because:

Defendant

was in a superior position to know the true facts about the defective

Flex-Able Hoses'efective

nature,

testing on the hoses prior to marketing

in that it, among other things, performed

them. Moreover, Defendant had exclusive

ClLASS ACT10N COMPLAtNT AND,IIUM'EMAND

knowledge

of

mateidal

to Plaintiff and the Class prior to

facts not known

pui'chase.

b.

Plaintiff and the Class could not reasonably

have been expected to learn or

of the failure.

discover that the Flex-Able Hoses had a defect until manifestation

c.

Defendant

made representations

that the Flex-Able Hoses were, among

other

things, "built strong" and would "last a long time!

*'.

Defendant

actively concealed the defective nature

of the Flex-Able Hoses

from

Plaintiff and the Class.

32.

and intentionally

ln failing to disclose the inherent defect, Defendant knowingly

concealed material facts and breached its duty to disclose such information.

33.

11

Such facts are material in that a reasonable consumer would have considered them

to be important in deciding whether to purchase Defendant*s Flex-Able Hose. Had Plaintiff and

13

lhe Class known

about the defective nature

of

the Flex-Able Hoses, they would not have

purchased the product.

14

34.

As a direct and proximate

result

of Defendant's

unfair or deceptive

acts or

practices, Plaintiff and the Class have suffered and will continue to suffer damages and injury in

16

fact.

35.

17
18

of defendants
from the sale

36.
through

Plaintiff seeks an order enjoining the above-described

and awarding restitution

and/or disgorgement

wrongful

of Defendant's

acts and practices

revenues and profits

of the Flex-Able hoses.

Pursuant

to Civil Code

4I

1782(a), Plaintiff, on behalf of herself and the Class,

her counsel, on or about August 28, 2013, made a written demanding

cease and desist its unlawful

conduct and offer to make appropriate

restitution,

that Defendant

correction, or

remedy, including but not limited to, notifying all persons who purchased the product and giving
such other notice as may be required under Civil Code

rt

1782. Defendants, however, failed to

23

CLASS ACTION COMPLAINT

10

AiND

JURV BKMANB

agree to cease and desist, to give proper notice, or to offer to make proper restitution to the Class.

to Civil Code tj1782(d), Plaintiff therefore,

Pursuant
3

damages under the CLRA on behalf

of herself

and all other similarly

atnount to be proven at trial, as well as interest and

37.

As a direct and proximate result

prays for compensatory

and punitive

situated consumers,

in an

attorneys'ees.

of Defendant's

of the CLRA,

violations

Plaintiff,

the general public, and the Class have suffered actual damages in an amount to be proven at tidal.

38.

Defendant's

acts, omissions,

statementsconcealments,

disclosures, policies, procedures as described herein, were knowingly

of their effects on

in conscious disregard

consumers.

non-

representations,

deceptive and were made

Defendant was required by law to make an

adequate

disclosure

of the

true material

facts of about the Flex-Able Hose to consumers.

Defendant, however, failed to do so in order to conceal material information

thereby induce consumers
engaged

in acts

of

to purchase

its misrepresented

fraud, malice and oppression

oroducts.

about the hoses and

AccordinglyDefendant

of the rights of

or in conscious disregard

Plaintiff and the putative Class. As such, an award of punitive datnages is justified in order to
make an example

of Defendant, to

punish Defendant, and to prevent others, from engaging in the

13
same or similar conduct in the future.

14

award

of punitive

Plaintiff and members

of the Class therefore seek

an

damages in an amount according to proof at trial.

15

(ViOLATIOlq OF CALIFORNIA'S UNFAIR BUSINESS PRACTICES ACT)

16

Cahfornia Business A Professions Code sectiion 17200 er serf.

18

19

20

39.

Plaintiff

preceding paragraphs

40.

hereby

of this

incorporates

Er,

41.
fail prematurely,

Defendant

contained

Professions Code section 17200 prohibits

any "unlawful,

"unfair, deceptive, untrue or misleading

23

the allegations

in the

Complaint.

California Business

competition," including

by reference

unfair or fraudulent

acts

of "unfair

business act or practice*'nd

any

advertising.*'2

knew its Flex-Able Hoses were defectively

designed, were prone to

and were not suitable for their intended use.

CLASS ACTION COMPLAINT ANB JUM'KMAXD

11

42.

In failing to disclose the inherent

defect, Defendant knowingly

and intentionally

concealed material facts and breached its duty to disclose such information.

43.

Defendant

in unfair

engaged

competition

and unlawful,

unfair

and fraudulent

business acts rnid practices by, among other things, violating California Civil Code section 1750,

et seq. and Business and Professions Code section 17500, et seq.

44.

Defendant's

Defendant's

or deceptive

unfair

trade or business

acts or practices

and were capable

of

deceiving

occurred

a substantial

in

repeatedly
portion

of

the

pubhc.

purchasing

45.

As a direct and proximate result

of Defendant's unfair and deceptive practices,

Plaintiff and the Class have suffered and will continue to suffer actual damages.

10

46.

Defendant has been unjustly enriched and should be required to make restitution

to Plrdntiff and the Class pursuant to sections 17203 and 17204

of the Business k. Professions

Code.

TIIIRD CI.AIM FOR RELIEF

13

(VIOI ATION OF CALIFORNIA FAI SK ADVERTISING

Cah IIus.dk Prof. Code rI 17500

47.
as

if set

Plaintiff repeats and realleges each

of the

foregoing paragraphs

forth in full, and incorporates by reference the allegations

16

of action is brought

by Plaintiff on behalf

17

48.

advertises

Defendant

of herself,

of this

Complaint

contained above. This cause

the Class members, and the general public.

the hose as having

"a tough

double wall construction...."

and being "designed like a fire-hose for speed storage and strength,

19

I AW)

to last a really long time."

These statements appeared on the Flex-AMe Hose's packaging, the product's website, and on the
infomercial.

To emphasize

the strength

20
materials

and product packaging

of

the hose, Defendant's

marketing

depict the hose being run over by a fire tmck. Such images

appear on the product's packaging,

website, and in the infomercial. Due to the hoses'nherent

22

defect, Defendant's

23

deceive, and continue to deceive, members

advertising,

and durability

marketing

materials,

of the Class

and packaging

materials

are likely to

and the general public, and are such are

CI.ASS ACTION COMPI.A&lT AND JURY DEMAND

of Cal. Bus. 8r Prof. Code

untrue, deceptive, and misleading within thc meaning

Defendant's

statementsnon-disclosures,

continue deceiving members

representations,

of the class

17500, et seq.

acts and omissions are also likely to

and the general public, particularly

because Defendant

has failed to take remedial measures.

49.

should have known that the statements

Bus.

8r.

Prof. Code

50.

ss

the statements

and disseminating

In making

alleged herein, Defendant knew or

were untrue or misleading,

and acted in violation

of Cal.

17500, et seq.

Defendant's

and non-disclosures

misrepresentations

above constitute false and misleading

of the

material facts detailed

of Cal. Bus. E.

and, as such are a violation

advertising

Prof. Code $ 17500, et seq.

51.

Through its deceptive acts and practices, Defendant has improperly

of the

obtained money f'rom Plaintiff and members

As such, Plaintiff requests

putative Class.

that this Court compel Defendant to restore this money to Plaintiff and members

to violate Cal. Bus.

Class, and to enjoin Defendant from continuing

and illegally

of the

putative

Prof. Code $ 17500, as

discussed above.

13

52.

Pursuant to Cal. Bus. Ec Prof. Code

of its

Defendant to fully disclose the true nature

15

order requiring

Defendant

and the putative

remedy

if such

to disgorge its ill-gotten gains and/or

class may be irreparably

Plaintiff also requests an

misrepresentations.

acquired by Defendant by means

monies wrongfully

17

17535, Plaintiff requests that the court order

tj

harmed

award full restitution

of such acts of false advertising.

and/or

denied

of

all

Plaintiff

an effective and complete

an order is not granted.

Ig

FOURTH

CLA~ Folk RELIEF

20

53.

Plaintiff

preceding paragraphs

22

54.

hereby

of this

incorporates

by reference

the allegations

contained

in the

Complaint.

Plaintiff and the Class reasonably

expected the Flex-Able Hoses to function

properly for its useful life.

CI.ASS ACTION COMPLAINT AND JURV DEMAND

13

55.
prematurely,

56.

knew that the hoses were defectively

Defendant

designed,

were prone to fail

and were not suitable for their intended use.

Defendant concealed and failed to disclose the defective nature

of the Flex-Able

Hoses to Plaintiff and the Class.

57.

Defendant. had a duty to disclose the defective nature

of the Flex-Able Hose

to

Plaintiff and the Class because:

a.

Defendant

was in a superior position to know the true quality

Hoses and had exclusive knowledge

nature,

which was not known

of

the material

of the Flex-Able

facts about its defective

to Plaintiff and the Class at the time

of

their

purchases;

10

b.

Defendant made representations

that the Flex-Able Hoses werc "built strong'* and

would "last a long time," among other things.

Defendant

12

actively concealed the defective nature

of the Flex-Able Hoses fiom

Plaintiff and the Class.

58.

The facts that Defendant

failed to disclose were material

and/or

in that a

reasonable person would have considered them to be important in deciding whether to purchase

16

Defendant*s Flex-Able Hoses.

Had Plaintiff and the Class known the defective nature

of the

Flex-Able Hoses, they would not have purchased Defendant's product.

59.

Defendant concealed and or failed to disclose the inherent defect in the Flex-Able

18
Hoses in order to induce Plaintiff and the Class to act thereon. Plaintiff and the Class justifiably

19
20
21

relied on Defendant's

omission to their detriment, as is evident from their purchases

of the Flex-

Able Hoses.

60.
after meinbers

Defendant continued to conceal the defective nature

of the Class

of the Flex-Able Hoses

began to report problems.

23

CI ASS ACTION COMPLAINT ANB JURV BKMANB

14

even

61.

As a direct and proximate

of Defendant's misconduct, Plaintiff

result

and the

Class have suffered and will continue to suffer actual damages.

FIFTH CI.AIM FOR RKI IKF

62.

Plaintiff

preceding paragraphs

63.

manufactured

64.

incorporates

hereby

65.
was it

of the
66.

the allegations

contained

in the

of this Complaint.

Plaintiff

and

the

Class

bought

the

Flex-Able

a consumer

Hose,

good,

and marketed by Defendant.

At the time

of purchase,

Defendant

marketing consumer goods for distribution

10

by reference

was in the business

of manufacturing

and

to retail consumers.

The Flex-Able Hose was not ftt for the ordinary purpose of a garden hosenor
same quality as that generally acceptable in the trade.

As a result

of Defendant's

breach, Plaintiff and the Class sustained damages.

12

SIXTII CLAIM FOR RKI.IKF

13

(Sreach of Implied Warranty of Fitness For a Particular Purpose)

14

67.
16

preceding paragraphs

68.
17

hereby

incorporates

by reference

the allegations

contained

of this Complaint.

Plaintiff and the Class were harmed because the Flex-Able Hose was not suitable

At the time

of purchase,

Defendant

knew and had reason to know that Plaintiff

and the Class intended to use the Flex-Able Hose as a garden hose.

70.

At the time

of purchase,

Defendant knew or had reason to know that Plaintiff and

the Class were relying on its skill and judgment

of Defendant to select

and provide a garden hose

that was suitable for that particular purpose.

22

23

in the

for the intended use of a garden hose.

69.
19

Plaintiff

71.

Plaintiff and the Class justifiably rehed on Defendant's

skill and judgment,

72.

The Flex-Abls Hose was not suitable for the particula~ use as a garden hose, as it

was, atnong other things, prone to leaks and ruptuidng.

73.

As a result

of Defendant's

breach, Plaintiff and the Class sustained damages.

PRAYER FOR RKL1KF

WHEREFORE the Representative Plaintiff, on behalf of herself and all persons and
6

consumers similarly situated, pray for judgment against Defendant as follows:

1. An order certifying the Class defined herein be entered designating Plaintiff and her
counsel as representatives

of said Class;

2. For a preliminary injunction enjoining Defendant, its successors and assigns and all
10

others, known and unknown,

from continuing to deceive consmners in the manner set

forth in this complaint;

3. For permanent
13

14

injunctive relief against Defendant under the CLRA, the UCL, and the

FAL;

4. An order requiring that Defendant make corrective disclosures;

5. Make restitution to each plaintiff

cause

17

of action

6. A judgment

and each member

of the Plaintiff Class

under each

in an amount according to proof at trial;

awarding Plaintiff and the Class compensatory,

exemplary and punitive

damages;

7. For other equitable relief;

8. For attorney's fees as pmvided by law;

9. For prejudgment

interest as provided by law;

10. For costs of suit

23

CI.ASS ACTION COMPLAINT AND IURV DEMAND

16

2
3

11. For such

other and further rehef as this Court deems to be just and equitable,

Dated: January 9, 2014

GEOFFR4VI 1. SPRETER
Spreter Legal Services, APC
601 3 Street
Coronado, CA 92118
(619) 865-7986
spreterl egal services(rrgmail.corn

JIJRV TRIS, IIKMANIJt

Plaintiffhereby

demands a trial by jury.

Dated: January 9, 2014

14
15

16
17

GEOFFREY J. qPRETER
Spreter Legal Services, APC
601 3 Street
Coronado, CA 92118
(619) 865-7986
spreterlegalservices@gmaihcom

20

CLASS ACTION COMPLAINT AND JURY DEMAND

EXHI I7 A

2
3

ALEXANDER M. SCHACK, Esq., Bar No. 99126

(alexschack@mnslawofftce.corn)
NATASHA N~GHI, Esq., Bar No. 284711
(natashanaraglu@amslawoffice.corn)
LAW OFFICES OF ALEXANDER M. SCHACK
16870 West Bernardo Drive, Suite 400
San Diego, CA 92127

Tel: (858) 485-6535 Fax: (858) 485-0608

5

GEOFFREY J. SPRETER, Esq., Bar No 257707

6
7
8

(spreterlegalservices@gtnail.corn)

SPRETER LEGAL SERVICES, APC

601 3 Street
Coronado, CA 92118
Telephone: 619-865-7986
Attorneys for Jeanne Burns,
individually and on behalf of all others similarly situated

10

13

15

20

23

of all ) CASE NO:

)
)
Plaintiffs,
)
)
) Cl ASS ACTION COMPLAINT
)
Tnstar Products, Inc., a New Jersey Corporanon )
) IJKCL ~TION OF JEANNE
and Does 1 through 50.
CIVIL COIJK SECTION 1780(D)
)
)
Defendant.
)
)
)
)
)
Jeanne Burn, individually
others similarly situated,

and on behalf

B~S

DECLARATION OF JEANNE BIJRNS RK CJVIlL CODE SECTION 1780(IJ)

I, Ieanne Burns, declare as follows;

I am a plaintiff in this action and a citizen of the State of California.

1.

personal

competently

knowledge

of the facts herein

2.

substantial

Defendant, Ttistar Products, Inc.

if called

as a witness,

I could and would testify

thereto.

This is a proper place for trial under Civil Code Section 1780{1}in that a
portion

3.

and

I have

of

the transaction

I purchased

Defendant's

the

interactive websitc.

alleged occurred in San Diego County and because the

("Defendant*'),
Flex-Able

does business in San Diego County.

Hose in San Diego

County,

California

I was led to believe by Defendant's marketing

from

and advertising

10

that, among other things, the Flex-Able Hose was shong and that it would last a long time. I

11

found it to be neither strong nor to last a long time. I would not have purchased

12

Hose

14

if I had

of the

true facts about the Flex-Able Hose.

I declare under penalty of perjmy under the laws of the State of California that the

15

foregoing

16

California.

20

known all

the Flex-Able

is true and

correct, executed

on November

4, 2013

in San Diego

County