Court filing
Class action complaint — Byrnes v. Fountainhead (C.D. Cal.)
Filed May 6, 2020 in Byrnes v. Fountainhead; one of 8 filings from this case.
Record facts
| Court | U.S. District Court, Central District of California |
|---|---|
| Filed | 2020-05-06 |
U.S. District Court, Central District of California · No. 2:20-cv-04149-DDP-RAO · Doc. 1 · 2020-05-06 · Docket on CourtListener
Full text
CLASS ACTION COMPLAINT
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Joshua H. Haffner, SBN 188652
(jhh@haffnerlawyers.com)
Graham G. Lambert, Esq. SBN 303056
gl@haffnerlawyers.com
HAFFNER LAW PC
445 South Figueroa Street, Suite 2625
Los Angeles, California 90071
Telephone: (213) 514-5681
Facsimile: (213) 514-5682
Bart I. Ring, SBN:
(bartiring@aol.com)
THE RING LAW FIRM APLC
5550 Topanga Canyon Blvd., Suite 200
Woodland Hills, California 91367
Telephone: (818) 835-5842
Facsímile: (818) 587-9292
Attorneys for Plaintiff Elizabeth M.
Byrnes, Inc., and all others similarly
situated
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
ELIZABETH M. BYRNES, INC., a
corporation, on behalf of itself and all
others similarly situated,
Plaintiff,
v.
FOUNTAINHEAD COMMERCIAL
CAPITAL, LLC; and DOES 1
through 10, inclusive,
Defendant.
Case No.
CLASS ACTION COMPLAINT
FOR:
1. FRAUDULENT
CONCEALMENT;
2. UNFAIR BUSINESS
PRACTICES;
3. FALSE ADVERTISING.
DEMAND FOR JURY TRIAL
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CLASS ACTION COMPLAINT
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Plaintiff Elizabeth M. Byrnes, Inc. (“Plaintiff”) is informed and believe, and
on that basis allege, as follows:
NATURE OF THE ACTION
1.
This is a California state-wide class action for fraudulent concealment,
unfair business practices, and false advertising arising out of Defendant
Fountainhead Commercial Capital, LLC’s (“Defendant” or “FCC”) scheme to
enrich itself at the expense of small businesses in connection with the federal
government’s Paycheck Protection Program (“PPP”), enacted to ameliorate the
financial impact on small businesses from the coronavirus crisis.
2.
As more fully alleged herein, although PPP funding was intended to
be processed on a first come, first served basis, and Defendant represented that it
would process and prioritize loans as received in a “queue.” However, Defendant
had a secret priority system, whereby it shuffled the queue, and prioritized for
processing high value PPP loans, that earned Defendant larger fees.
3.
As a result, Plaintiff and many other class members who did not meet
Defendant’s prioritization criteria, did not receive PPP funding through Defendant.
4.
Plaintiff seeks among other things, compensatory damages,
restitutionary disgorgement, punitive damages, and injunctive relief.
PARTIES
5.
Plaintiff Elizabeth M. Byrnes, Inc. was, at all relevant times, a
corporation and small business operating in Los Angeles, California.
6.
Defendant Fountainhead Commercial Capital, LLC (“Defendant” or
“FCC”) is a non-bank lender, including for Small Business Administration
(“SBA”) loans, and is authorized to conduct and is actually conducting business in
the State of California. Defendant FCC designates its main office in Florida.
7.
Plaintiff is currently ignorant of the true names and capacities,
whether individual, corporate, associate, or otherwise, of the Defendants sued
herein under the fictitious names Does 1 through 10, inclusive, and therefore sue
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CLASS ACTION COMPLAINT
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such Defendants by such fictitious names. Plaintiff will seek leave to amend this
complaint to allege the true names and capacities of said fictitiously named
Defendants when their true names and capacities have been ascertained. Plaintiff
is informed and believes and thereon alleges that each of the fictitiously named
Defendants is legally responsible in some manner for the events and occurrences
alleged herein, and for the damages suffered by the Class.
8.
Plaintiff is informed and believes and thereon alleges that all
Defendants, including the fictitious Doe Defendants, were at all relevant times
acting as actual agents, conspirators, ostensible agents, alter egos, partners and/or
joint venturers and/or employees of all other Defendants, and that all acts alleged
herein occurred within the course and scope of said agency, employment,
partnership, and joint venture, conspiracy or enterprise, and with the express and/or
implied permission, knowledge, consent authorization and ratification of their co-
Defendant; however, each of these allegations are deemed “alternative” theories
whenever not doing so would result in a contradiction with other allegations.
JURISDICTION AND VENUE
9.
This Court has jurisdiction over the entire action by virtue of the fact
that this is a civil action wherein the matter in controversy, exclusive of interest
and costs, exceeds the jurisdictional minimum of the Court. The acts and
omissions complained of in this action took place in part in the State of California.
At least one Defendant is a citizen of a state outside of California, and federal
diversity jurisdiction exists and/or jurisdiction under the Class Action Fairness Act
(“CAFA”). The class amount at issue exceeds $5,000,000 and the jurisdictional
minimum of this Court under CAFA. Venue is proper because this is a class
action, the acts and/or omissions complained of took place, in whole or in part
within the venue of this Court.
///
///
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CLASS ACTION COMPLAINT
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FACTUAL ALLEGATIONS
10.
In or about March 2020, the coronavirus outbreak emerged as a
nationwide crisis in the United States. On March 19, 2020, the Governor of
California issued a stay at home order for all Californians in order to slow the
spread of the coronavirus. The impact on small business of the coronavirus
outbreak, social distancing, and the stay at home order, was devastating.
11.
On March 27, 2020, in response to the economic fallout of the
coronavirus crisis, the Coronavirus Air, Relief, and Economic Security (“CARES”)
Act was signed into law.
12.
As part of the CARES Act, the federal government created a $349
billion program, called the Paycheck Protection Program (“PPP”), for small
businesses. The PPP program made these funds available for loans originated
through June 30, 2020. The PPP loans are backed by the SBA, but administered
by private lenders. The PPP loans provide for loan forgiveness if certain criteria
are met, including not laying off employees during the crisis.
13.
Defendant FCC advertises itself as the largest non-bank SBA lender in
the United States. Once the CARES Act was passed, Defendant FCC advertised
on its website and elsewhere that it was one of the few nonbank lenders licensed to
make PPP loans, and that it would process PPP loan applications and make such
loans for small businesses. Defendant FCC served as intermediary between small
business and federal funds under the PPP program. Defendant FCC encouraged
small businesses to apply with it for PPP loans, and to act fast.
14.
In submitting PPP loan applications, time was of the essence. The
SBA regulations for the PPP program required that funds be distributed under a
first come, first serve basis. Specifically, SBA Interim Final Rule §2m, states that
the answer to the question “Is the PPP ‘first-come, first-served?’” is “Yes.”
15.
Plaintiff is informed and believes, and on that basis alleges, that there
was, in essence, a line or queue to obtain PPP loans, and your position in the line
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CLASS ACTION COMPLAINT
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would be determined by when your PPP application was submitted to the SBA.
16.
Plaintiff submitted a PPP loan application to Defendant FCC on
March 28, 2020. Plaintiff’s PPP application was for less than $25,000. That same
day, March 28, 2020, Defendant FCC responded with an email stating, among
other things, “We’ve received your loan app and you are in the queue!” and “Help
is on the way Elizabeth!” On March 29, 2020, Defendant FCC sent Plaintiff an
email thanking her for the “Paycheck Protection Loan Program submission with
Fountainhead!”, and stating that “we’re committed to helping as many small to
mid-size businesses as possible to recover from the effects the coronavirus has had
on their operations and financial condition.” Defendant FCC’s March 29 email
asked Plaintiff to gather certain documentation, and stated “You can expect an
invitation to a secure portal for document upload within the next 48 business
hours.” Defendant FCC failed to provide the portal link to upload documents
within that 48-hour time-frame.
17.
On April 9, 2020, Plaintiff wrote to Defendant FCC inquiring about
the status of her application, specifically asking “will you please confirm my
business is in the PPP loan queue.” On April 9, 2020, Defendant FCC responded
“Yes” and further stated “you will soon be receiving an email which provides a
link to register for and access our borrower portal. Once you have registered, you
will be given the opportunity to upload required documents. . . We will be
distributing the portal registration emails over the next 24-48 hours.”
18.
On April 13, 2020, Defendant FCC sent an email to Plaintiff with the
subject heading “PPP links being sent,” and stating “We ask for your patience with
us . . . as we process your requests as quickly and responsibly as we can. Should
you feel the need to remove yourself from our loan queue and join another lender’s
list, kindly let us know . . . so we may continue to prioritize our list.”
19.
In reliance on Defendant FCC’s representation it would process her
loan and she was in the queue, Plaintiff gathered the requested documents, waited
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for the link to upload them, made personnel and strategic business decisions, and
took other steps to manage her business.
20.
Plaintiff is informed and believes, and on that basis alleges, that
Defendant FCC received thousands of PPP loan applications, and chose to
prioritize higher loans that would yield higher fees for Defendant FCC. Plaintiff is
informed and believes, and on that basis alleges, that Defendant FCC chose to
prioritize applications with higher loan amounts because processing those
applications first resulted in larger origination fees for Defendant FCC. Plaintiff is
informed and believes, and on that basis alleges, that Defendant FCC prioritized
loans that were in the range of $100,000 to $300,000. Defendant FCC did not
disclose to the public that it was prioritizing loans not on a first come, first served
basis, but on criteria relating to the value of the loan.
21.
Plaintiff is informed and believes, and on that basis alleges, that
Defendant FCC failed to disclose and knowingly concealed from the public its
unlawful practice of prioritizing higher value loans in order to benefit itself.
Plaintiff is informed and believes, and on that basis alleges, that because of
Defendant’s undisclosed criteria for processing higher value loans first, Plaintiff
and Class members’ loans were not processed by Defendant FCC.
22.
Plaintiff is informed and believes, that Defendant FCC has now
suspended its program processing applications for and making PPP loans.
23.
Plaintiff is informed and believes, and on that basis alleges, that
Defendant FCC knew it had received more PPP loans applications than it would be
able to process, but concealed that from the public.
24.
Plaintiff and the Class reasonably relied on Defendant FCC’s
representations, communications and advertising in making the choice to apply for
their PPP loan through Defendant FCC, not knowing that, contrary to its
representations, Defendant FCC would prioritize large borrowers, to the detriment
of Plaintiff and other small business owners. As a result of their reliance on
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Defendant FCC’s representations and omissions, Plaintiff and the Class suffered
economic harm. Had Plaintiff and class known Defendant FCC was prioritizing
large loans, they could have applied for a loan with a different lender.
25.
As a direct and proximate result of Defendant FCC’s wrongful
conduct, Plaintiff and the Class have suffered financial harm including, but not
limited to, loss of the time value of PPP funds.
CLASS DEFINITIONS AND CLASS ALLEGATIONS
26.
Plaintiff brings this action on behalf of herself, and on behalf of all
others similarly situated, and as a member of the Class defined as follows:
All businesses in the State of California who applied for PPP
funding through Defendant FCC, in an amount less than
$100,000, who met the SBA’s criteria for PPP loan eligibility,
and whose applications were not processed and funded by
Defendant.
27.
Plaintiff reserves the right to amend or otherwise alter the sub-class
definitions presented to the Court at the appropriate time, or to propose or
eliminate sub-classes, in response to facts learned through discovery, legal
arguments advanced by Defendant or otherwise.
28.
This action has been brought and may be properly maintained as a
class action pursuant to California Code of Civil Procedure § 382 and other
applicable law, as follows:
29.
Numerosity of the Class: Members of the Class are so numerous
that their individual joinder is impracticable. The precise number of Class
members and their addresses are known to Plaintiff or will be known to Plaintiff
through discovery. Class members may be notified of the pendency of this action
by mail, electronic mail, the Internet, or published notice.
30.
Existence of Predominance of Common Questions of Fact and
Law: Common questions of law and fact exist as to all members of the Class.
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These questions predominate over any questions affecting only individual Class
members. These common legal and factual questions include:
a. Whether Defendant failed to process loan applications on a first come,
first serve basis;
b. Whether Defendant prioritized higher value loans;
c. Whether Defendant failed to disclose that it prioritized higher value
loans;
d. Whether Defendant complied with SBA regulations in processing
applications for PPP loans;
e. Whether Defendants engaged in an unfair business practice in violation
of Business & Professions Code §17200, et seq.
f. Whether Defendants engaged in false advertising in violation of
Business & Professions Code §17500, et seq.
g. Whether Defendants fraudulently concealed they were prioritizing
higher value PPP loans;
h. The nature and extent of class-wide injury and the measure of damages
for the injury.
31.
Typicality: Plaintiff’s claims are typical of the claims of the members
of the subclasses they represent because Plaintiff, as a mortgage consultant for
Defendant, was exposed and subjected to the same unlawful business practices as
other mortgage salespersons employed by Defendant during the liability period.
Plaintiff and the members of the class she represents sustained the same types of
damages and losses.
32.
Adequacy: Plaintiff is an adequate representatives of the Class they
seeks to represent because their interests do not conflict with the interests of the
members of the subclasses Plaintiff seeks to represent. Plaintiff has retained
counsel competent and experienced in complex class action litigation and Plaintiff
intends to prosecute this action vigorously. The interests of members of each Class
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will be fairly and adequately protected by Plaintiff and their counsel.
33.
Superiority and Substantial Benefit: The class action is superior to
other available means for the fair and efficient adjudication of Plaintiff and the
Class members’ claims. The violations of law were committed by Defendant in a
uniform manner and class members were exposed to the same unlawful practices.
The damages suffered by each individual Class member may be limited. Damages
of such magnitude are small given the burden and expense of individual
prosecution of the complex and extensive litigation necessitated by Defendant’s
conduct. Further, it would be virtually impossible for the Class members to redress
the wrongs done to them on an individual basis. Even if members of the Class
themselves could afford such individual litigation, the court system could not.
Individualized litigation increases the delay and expense to all parties and the court
system, due to the complex legal and factual issues of the case. By contrast, the
class action device presents far fewer management difficulties, and provides the
benefits of single adjudication, economy of scale, and comprehensive supervision
by a single court.
34.
The Class should also be certified because:
a. The prosecution of separate actions by individual members of the
Class would create a risk of inconsistent or varying adjudications with respect to
individual Class members which would establish incompatible standards of
conduct for Defendant;
b. The prosecution of separate actions by individual members of the
Class would create a risk of adjudication with respect to them, which would, as a
practical matter, be dispositive of the interests of the other Class members not
parties to the adjudications, or substantially impair or impede their ability to
protect their interests; and
c. Defendant has acted or refused to act on grounds generally applicable
to the Class, and/or the general public, thereby making appropriate final and
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injunctive relief with respect to the Classes as a whole.
FIRST CAUSE OF ACTION
FRAUDULENT CONCEALMENT
(Violation of California’s Unfair Competition Law, Bus. & Prof. Code §§
17500 et seq.)
35.
Plaintiff re-alleges and incorporates all preceding paragraphs as if
fully set forth herein.
36.
In March and April 2020, Defendant represented to the public through
its website and advertisements that it would process PPP loan applications for
small businesses. Defendant represented via email, when persons submitted an
application that they were in the “queue” with respect to prioritizing PPP loan
application processing. Defendant made these representations to Plaintiff via email
March 28, 2020, April 9, 2020, and April 13, 2020. Each of these emails came
from email address info@fountainheadcc.com. The March 28, 2020 and April 13,
2020, stated they were from Chris Hurn, who Plaintiff is informed and believes,
and on that basis alleges, is Defendant FCC’s founder and CEO. The April 9, 2020
email from defendant FCC did not identify an author.
37.
Defendant had a duty to disclose material information related to the
transaction, including its practice of prioritizing high value loans. Among other
things, a duty to disclose existed because (a) Defendant has exclusive knowledge
of material information relating to the PPP loan application, including that it was
not prioritizing on a first come, first serve basis, and instead prioritizing high vale
loans; (b) SBA regulations required PPP loans to be processed on a first-come first
serve basis, and Defendant had a legal duty to disclose practices inconsistent with
these regulations; and (c) Defendant’s made representations regarding Plaintiff and
Class members being in the queue and help being on the way which were, at best,
misleading half-truths that required disclosure of Defendant actually prioritizing
higher value loans.
38.
Defendants omitted, failed to disclose, and fraudulently concealed
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material information, specifically that Defendant was prioritizing large loans for
PPP loan processing and submission to the SBA.
39.
Plaintiff and the Class justifiably, reasonably, and actually relied on
Defendants fraudulent concealment by submitting PPP loan applications through
Defendant FCC, and other acts, as alleged herein.
40.
As a result of Defendants’ fraudulent concealment, Plaintiff and the
Class have suffered economic harm, including but not limited to, loss of use of
money.
41.
On the basis of all of the facts alleged hereinabove, Defendants’
conduct and actions were despicable, and were done maliciously, oppressively
and/or fraudulently, with a willful and conscious disregard of Plaintiffs’ rights,
entitling plaintiff to punitive damages under California Civil Code Section 3294.
As to all Defendants, the officers, directors and managing agents were personally
involved in the decision-making process with respect to the misconduct alleged
herein and to be proven at trial. As to the conduct engaged in by representatives of
the Insurer Defendants, their officers, directors and managing agents authorized
and ratified each and every act on which Plaintiffs’ allegations of punitive damages
herein are based.
SECOND CAUSE OF ACTION
UNFAIR BUSINESS PRACTICES
(Violation of California’s Unfair Competition Law, Bus. & Prof. Code §§
17200 et seq.)
42.
Plaintiff re-alleges and incorporates all preceding paragraphs as if
fully set forth herein.
43.
Section 17200 of the California Business and Professions Code (the
“UCL”) prohibits any unlawful, unfair, or fraudulent business practices.
44.
Through its actions alleged herein, Defendant has engaged in unfair
competition within the meaning of the UCL. Defendant’s conduct, as alleged
herein, constitutes unlawful, unfair, and/or fraudulent business practices under the
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UCL.
45.
Defendant’s unlawful conduct under the UCL includes, but is not
limited to, violating: (a) 15 U.S.C. §52(a), with false advertisements, as alleged
herein; and (b) SBA regulations governing PPP funds, specifically 13 CFR Part
120, Docket No. SBA-2020-0015, RIN 3245-AH34, Business Loan Program
Temporary Changes; Paycheck Protection Program, §2m, requiring that PPP loans
be processed and funded on first come, first served basis.
46.
Defendant’s fraudulent conduct includes, but is not limited to,
representing that it would process PPP applications, that Plaintiff and class
members were in the queue for priority, and that help was on the way, without
disclosing that Defendants were prioritizing high value PPP loans.
47.
Defendant’s unfair conduct includes, but is not limited to, prioritizing
larger loans to enrich itself with larger fees, at the expense of smaller businesses
getting timely PPP loan funding.
48.
Plaintiff has standing to assert this claim because it has suffered injury
in fact and has lost money as a result of Defendant’s conduct, including but not
limited to, use of PPP funds.
49.
Plaintiff and the Class seek restitutionary disgorgement from
Defendant, and an injunction prohibiting them from engaging in the unlawful,
unfair, and/or fraudulent conduct alleged herein.
THIRD CAUSE OF ACTION
FALSE ADVERTISING
(Violation of California’s Unfair Competition Law, Bus. & Prof. Code §§
17500 et seq.)
50.
Plaintiff re-alleges and incorporates all preceding paragraphs as if
fully set forth herein.
51.
This cause of action is brought by Plaintiff and the Class under
California Business & Professions Code §17500. Pursuant to California Business
& Professions Code §17500, et seq., it is “unlawful for any person to make or
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disseminate or cause to be made or disseminated before the public in this state,…in
any advertising device...or in any other manner or means whatever,…any
statement, concerning…personal property or services…which is untrue or
misleading and which is known, or which by the exercise of reasonable care should
be known, to be untrue or misleading.”
52.
As described herein, Defendants committed acts of false advertising,
as defined by §17500 by making or disseminating, or causing to be made or
disseminated, before the public in this State, untrue or misleading statements in
connection with the sale of goods or services, that Defendants knew or should have
known were untrue or misleading.
53.
Plaintiff was aware of and reasonably relied on Defendant’s
statements.
54.
Plaintiff and the Class have lost money or property as a result of
Defendants; false advertising because they would have not have applied for PPP
funding through Defendant had they known the true facts, and would have received
PPP funding sooner.
55.
Pursuant to section 17535 of the California Civil Code, Plaintiff, on
behalf of himself and the Class, seeks restitution, a Court order enjoining
Defendants from such future conduct and any other such orders as may be
necessary to rectify Defendants’ false advertising, including requiring Defendants
to cease using misleading statements and to fully disclose the terms of the
agreement.
PRAYER
WHEREFORE, Plaintiff, on behalf of itself and all others similarly situated
and also on behalf of the general public, pray for judgment against Defendant as
follows:
A. An order that this action may proceed and be maintained as a class
action;
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B. Awarding Plaintiff and Class members damages, including special
and consequential damages;
C. Awarding Plaintiff and Class members compensatory damages in an
amount according to proof at trial;
D. Public injunctive relief enjoining Defendants unfair business practices
or false advertising;
E. Awarding restitution from Defendants to Plaintiff and the Class;
F. Punitive damages;
G. Attorney’s fees and costs;
H. For such other relief the Court deems just and proper.
DATED: May 6, 2020
HAFFNER LAW PC
By:
/s/ Joshua H. Haffner
Joshua H. Haffner
Attorneys for Plaintiff and others
Similarly situated
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DEMAND FOR JURY TRIAL
Plaintiff demands a trial by jury for itself and the Class members on all
claims so triable.
DATED: May 6, 2020
HAFFNER LAW PC
By:
/s/ Joshua H. Haffner
Joshua H. Haffner
Attorneys for Plaintiff and others
Similarly situated
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