Bullock v. Philip Morris, Inc. (complaint)

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES

BETTY BULLOCK,

Plaintiff,

vs.

PHILIP MORRIS INCORPORATED, a corporation; DUPAR'S RESTAURANT, a corporation; and DOES 1-100 inclusive,

Defendants.

Case No. BC 249171

April 23, 2001

COMPLAINT FOR DAMAGES

Negligence; Strict Liability; Enterprise Liability; False Representation; [Restatement Section 402-B]; Deceit/Fraudulent Concealment; [Bus. & Prof. C. sections 17200 et seq.]; Breach of Express Warranty; Negligent False and Misleading Advertising; Intentional False and Misleading Advertising [Bus. & Prof. C. sections 17500-1572]

GENERAL ALLEGATIONS

PLAINTIFF BETTY BULLOCK COMPLAINS OF DEFENDANTS, AND EACH OF THEM, AND ALLEGES:

1. The overwhelming scientific and medical evidence confirms that both tobacco additives and cigarette smoke contain many carcinogens and are toxic to the human system. Cigarette smoking is a substantial contributing force, if not the predominant factor, in the development of lung cancer, other cancers, heart disease, strokes, and other diseases. After years of study, it is uncontroverted that smoking-caused diseases are dose dependent; that is, each and every exposure to these carcinogens increases the risk of disease.

2. For years the cigarette manufacturers, including Defendant Philip Morris, Incorporated, (hereinafter "CIGARETTE DEFENDANT") have known both about the carcinogenic and toxic properties of cigarettes. The cigarette manufacturers have known that tobacco products could cause lung cancer since at least 1946, and they have intentionally conspired to mislead, deceive and confuse the government, and the public, including plaintiff, concerning the harmful and debilitating effects smoking has on the health of individuals, that nicotine in cigarettes is a powerfully addictive substance, and that the cigarette manufacturers intentionally manipulated levels of nicotine delivery in cigarettes to ensure that smokers remain addicted and continue to buy the products of the cigarette manufacturers, including CIGARETTE DEFENDANT.

3. Since the 1950's, the cigarette manufacturers, including CIGARETTE DEFENDANT, publicly promised to lead the effort to discover and disclose the truth about smoking and health. However, they systematically suppressed and concealed material information and waged an aggressive campaign of disinformation about the health consequences of smoking. They have known for years, based on their own secret research, that their products eventually injure or kill the consumer when used exactly as intended. Even now, these cigarette manufacturers, including CIGARETTE DEFENDANT, continue to deny and conceal the facts that smoking cigarettes causes lung cancer and other diseases and that nicotine is addictive and purposefully manipulated.

4. This action arises out of an ongoing conspiracy by the cigarette manufacturers, including CIGARETTE DEFENDANT, and their trade associations, their lawyers, and persons and/or entities unknown to plaintiff at the present time which together control the cigarette industry for the following purposes:

a. to intentionally suppress and/or conceal knowledge of the extent of the harmful effects of cigarette smoking from the public, the press, the government, including from plaintiff;

b. to intentionally frustrate the flow of information from the medical and scientific community to the general public on the health risks and addictive nature of cigarettes;

c. to purposefully create an illusion of conducting scientific research on cigarettes so as to mislead the public into believing that cigarettes were safe to smoke, when in reality no such bona fide research was ever conducted;

d. to knowingly and intentionally lie to, deceive and improperly influence law and policy makers in local, state and national government in order to avoid and/or control regulation of the sale of cigarettes to the consumer, including plaintiff;

e. to knowingly and intentionally lie to, deceive and improperly influence law and policy makers in local, state and national government in order to "immunize" defendant from claims of false and misleading advertising and promotion;

f. to knowingly and intentionally sell cigarettes to minors to ensure a future lucrative market for cigarettes as older smokers died;

g. to induce and entice minors to smoke so as to hook another generation of smokers who by the age of majority were addicted or dependent and against whom defendants could now assert "adult free choice" defenses; and

h. to purposefully create the illusion that a medical and scientific "controversy" existed as to whether or not cigarettes were harmful to human health when in truth and fact no such controversy existed so as to encourage the public to start or to continue smoking cigarettes.

CIGARETTE DEFENDANT and its co-conspirators and others have pursued a conspiracy of deceit and misrepresentation designed to amass enormous profits through the continued sales of cigarettes and tobacco products.

5. Liggett Group, Inc., and CIGARETTE DEFENDANT Philip Morris, Inc., R.J. Reynolds, Brown & Williams, as successor by merger to The American Tobacco Company and its predecessors in interest, Brown & Williamson, and Lorillard have together controlled almost 100% of the cigarette market in the United States. These cigarette manufacturers, their trade associations, their attorneys, and other conspirators agreed and undertook the conspiracy described herein, which existed at all times material to this lawsuit, and continues to exist at the present time. They have agreed to carry out the purposes of the conspiracy, as listed above, and have participated in and cooperated with each other in the conspiracy. Each act of the conspiracy was ratified by the other co-conspirators, who acted as each other's agents.

6. CIGARETTE DEFENDANT and its co-conspirators carried out their conspiracy in three ways: First, they agreed falsely to represent to plaintiff and others that questions about smoking and health would be answered by a new, unbiased, and trustworthy source. Second, they misrepresented, suppressed and confused the facts about the extent of the health dangers of smoking, including addiction and their manipulation of nicotine levels. Concealment of their actual knowledge concerning their own negative health and addiction research results and their manipulation and control of the nicotine content of their products to create and perpetuate smokers' addition to cigarettes were critical to the conspiracy. The co-conspirators claimed, falsely, that there is insufficient "objective" research to determine if cigarette smoking causes disease and that cigarettes are not addictive. The success of the conspiracy depended upon the concerted action of the cigarette manufacturers, for otherwise the revelation by one company of what it knew about the health consequences of smoking and the addictive nature of the manufacturers' cigarettes would have thwarted the conspiracy. Third, defendants used lawyers to misdirect what purported to be objective scientific research to create favorable, and to suppress or destroy unfavorable, findings regarding the health consequences of smoking. To discourage meritorious litigation by plaintiffs injured due to tobacco, they engaged in "scorched earth" litigation tactics in combination with suppressing, destroying and distorting evidence.

7. The conspiracy began at a time unknown to plaintiff, but at or about the time of the first scientific research by CIGARETTE DEFENDANT and the cigarette manufacturers. Over the years the co-conspirators, acting in concert, performed numerous overt acts to further the purposes of the conspiracy. Because many of these acts were concealed, plaintiff is not able to state all overt acts, but allege the following representative acts as examples. Beginning as early as 1946, cigarette industry researchers reported a link between use of tobacco and cancer development. CIGARETTE DEFENDANT knew and acknowledged internally these and other health hazards of smoking. Internal industry documents reveal knowledge of carcinogens in tobacco smoke, contribution of smoking to lung cancer, and that the irritation caused by smoking leads to chronic bronchitis and emphysema, among other health hazards caused by smoking.

8. In the ensuing years, CIGARETTE DEFENDANT knew and acknowledged internally the health hazards of smoking. Internal industry documents reveal knowledge of carcinogens in tobacco smoke, contribution of smoking to lung cancer, and irritation caused by smoking leading to chronic bronchitis and emphysema, among other health hazards presented by smoking.

9. In 1952, a British researcher, Dr. Richard Doll, published a statistical analysis showing that lung cancer was more common among people who smoked than among non-smokers, and that the risk of lung cancer was directly proportional to the number of cigarettes smoked. In December, 1953, Dr. Ernst L. Wynder of the Sloan-Kettering Institute published the results of a study definitively linking cigarette smoking and cancer. The widespread reporting of these studies caused what cigarette company officials later called the "Big Scare."

10. In response to Dr. Wynder's definitive study in 1953, the chief executive officers of the leading cigarette manufacturers met and conspired to deal with the "health scare" presented by smoking. Acting in concert at an industry strategy meeting on December 15, 1953, at the Plaza Hotel in New York, the participants, except defendant Liggett, agreed to orchestrate a public relations program to promote cigarettes and protect themselves from the perceived threat posed by these and other expected attacks. Participants agreed to have the public relations firm of Hill & Knowlton, which attended the meeting, serve as operating agency for all the companies.

11. Nine days after the December 15, 1953, meeting described above, Hill & Knowlton presented a detailed memorandum to the cigarette manufacturers. The memorandum characterized the grave nature of recent reports on the health effects of cigarette smoking as a serious public relations problem, a situation of extensive delicacy, and recommended that the industry avoid appearing callous to health or to be belittling negative medical research.

12. Five of the six cigarette companies attending the December 15, 1953, meeting agreed to form the Tobacco Industry Research Committee ("TIRC"). Defendant Liggett, which initially did not participate in the public relations effort, joined TIRC in 1964, the same year the Surgeon General issued his first report on smoking, in which he concluded that cigarette smoking was a cause of lung cancer. TIRC changed its name this same year to the Council for Tobacco Research ("CTR"). A second trade group, the Tobacco Institute, was formed in 1958 by cigarette manufacturers. The cigarette defendant conspirators and other co-conspirators were members and directors, with the purpose of providing a "voice to speak on behalf of the industry on all matters" and to provide disinformation to media and others on the dangers of cigarette use.

13. CIGARETTE DEFENDANT and others developed safer cigarettes by determining which parts of cigarette smoke caused disease. They did not market those cigarettes and they did not release the research that led to development of the safer cigarettes, because either move would be an admission that the existing cigarettes were not safe and that a safer alternative could be readily produced, undercutting the industry position to the contrary. Cigarette defendant conspirators also internally recognized the validity of non-industry research efforts, such as animal smoke-inhaling and skin-painting with smoke ingredients, but publicly down-played the significance of that research. In fact, in furtherance of the conspiracy to conceal adverse scientific information, there was a longstanding "gentleman's agreement" among the conspirator defendants and co-conspirators to not conduct, i.e., to suppress, independent research on the issue of smoking and health, as referenced in a 1968 internal Philip Morris draft memo which stated, "We have reason to believe that in spite of gentlemen's [sic] agreement from the tobacco industry in previous years that at least some of the major companies have been increasing biological studies within their own facilities."

14. The gentleman's agreement described above notwithstanding, R.J. Reynolds conducted research in the 1960's to study the mechanism whereby smoking causes emphysema. This research was described as important because it came close to determining the underlying pathobiology of emphysema. In 1970, R.J. Reynolds closed down the project and fired the scientists working on it. None of the work done on the project has been disclosed to the public.

15. Publicly, the cigarette manufacturers, including CIGARETTE DEFENDANT, took another stance. They used counsel-sponsored studies, among others, to attempt to show pockets of high cancer incidence without relation to smoking, to find instances of cancer in nonsmokers, and to show that duration and amount of smoking have no relation to the age of peak incidence of lung cancer. Documents suggest as well that in 1984 the in-house lawyers for the cigarette manufacturers, including CIGARETTE DEFENDANT, which formed a "Committee of Counsel," thwarted industry scientists' desires to assure the safety of the product by testing ingredients adequately. The appellate court in Florida in July, 1997 refused to overturn findings that there was evidence "that the defendants hid from and misrepresented to the public the health risks of smoking and that their conduct constituted fraud on the public," and "that the defendants utilized their attorneys in carrying out their misrepresentations and concealment to keep secret research and other conduct related to the true health dangers of smoking," sufficient to show that the attorneys were used to perpetuate the fraud. American Tobacco Co. v. State of Florida, 697 So.2d 1249, 1257 (Fla.App.1997).

16. Over the next 40 years, the tobacco industry continued this conspiracy to suppress the accumulating scientific and medical evidence of the health hazards of smoking by claiming to "help" science determine the true facts concerning smoking and disease and continuing to manipulate the nicotine level of cigarettes to keep smokers addicted and to lure and hook younger smokers.

17. Building on the efforts they launched in 1954 with the public announcement of TIRC, which became CTR, the cigarette manufacturers, including CIGARETTE DEFENDANT, through TIRC and the Tobacco Institute continued to state publicly in 1970 and thereafter, up through testimony to Congress in 1994, that they recognized a special responsibility to the public to help scientists determine the facts about tobacco use and health, and they supported CTR for independent research to that end.

18. In furtherance of the conspiracy to conceal relevant information regarding smoking and health, the cigarette manufacturers, including CIGARETTE DEFENDANT, through CTR, The Tobacco Institute, and otherwise continued to insist throughout 1970's, 1980's, and 1990's that there still was a question about smoking and health and that cigarette smoking had not been established to cause chronic diseases such as cancer or emphysema, and claimed that studies showing smoking causes disease were flawed.

19. The nicotine in cigarettes is addictive, due to the pharmacological effect of nicotine. CIGARETTE DEFENDANT and co-conspirators have known this since at least the early 1960's. As stated by defendant Philip Morris in a 1969 research report to the Philip Morris board of directors:

[ . . . smoking a cigarette for a beginner is a symbolic act . . . "I am no longer my mother's child, I'm tough, I'm an adventurer, I'm not square . . . As the force from the psychological symbolisms subsides, the pharmacological effect takes over to sustain the habit . . . "

Nicotine is now recognized as an addictive substance by such major medical organizations as the Office of the U.S. Surgeon General, the World Health Organization, and the American Medical Association. Each of these organizations now acknowledges tobacco use as a form of drug dependence or addiction with severe adverse health consequences. CIGARETTE DEFENDANT continues to dispute this fact.

20. In furtherance of the conspiracy, the cigarette manufacturers, including CIGARETTE DEFENDANT, have controlled, and continue now to control nicotine content of their cigarettes, including by developing high-nicotine tobacco and blending of tobacco, and engineer their cigarettes to control nicotine delivery to the smoker, through adding ammonia, and through the use of reconstituted tobacco. They then concealed their knowledge of the addictive nature of nicotine and of their manipulation of nicotine levels and delivery. The cigarette manufacturers, including CIGARETTE DEFENDANT, have denied, and continue to deny publicly that nicotine is addictive, or that they attempt to or do achieve levels of nicotine in their products to create or sustain addiction.

21. The cigarette manufacturers, including CIGARETTE DEFENDANT, have squelched and kept secret information they had about the hazards of smoking to health, and about the addictive nature of nicotine and their manipulation of nicotine levels and delivery. The March 1997 defection of Liggett from the conspiracy affirms its existence, for the cigarette manufacturers sought to suppress all Liggett documents relating to the conspiracy from the public.

22. In furtherance of the conspiracy, the cigarette manufacturers, including CIGARETTE DEFENDANT, deliberately abused the litigation process, as described more fully hereafter. They conspired to resist all discovery aimed at them, to force litigating plaintiffs to obtain a court hearing, and then demanded confidentiality orders once court rulings were obtained to prevent the rulings from becoming public knowledge. They have demanded extensive expert and plaintiffs depositions, and have at every juncture tried to force seriously ill plaintiffs to incur the massive costs associated with litigation while the co-conspirators pooled the costs of defense.

23. The combination of litigation tactics adopted by the cigarette manufacturers, including CIGARETTE DEFENDANT, and their suppression of the information available to them regarding the health hazards of tobacco, the addictive nature of nicotine, and their manipulation of nicotine levels and delivery, operated to discourage personal injury litigation against them, to the point where defendants could and did assert that they never paid a cent to a personal injury claimant on account of smoking.

24. The aforementioned conspiracy by CIGARETTE DEFENDANT and its co-conspirators resulted in plaintiff being unaware the extent to which smoking was a hazard to her health, that the nicotine therein would addict her to smoking, or that defendants manipulated nicotine levels and targeted youth so as to hook youth before majority and then assert adult free choice as a defense once so hooked. This conspiracy proximately and legally caused the injuries she has sustained and the damages plaintiff claims herein. As a result, plaintiff has now developed and will die in the future from cancer caused by plaintiff's addiction to smoking.

THE PARTIES

25. The true names and capacities, whether individual, corporate, associate, governmental or otherwise, of defendants FIRST DOE through THREE HUNDREDTH DOE, inclusive, are unknown to plaintiff at this time, who therefore sues said defendants by such fictitious names. When the true names and capacities of said defendants have been ascertained, plaintiff will amend this Complaint accordingly. Plaintiff is informed and believes and thereon alleges that each defendant designated herein as a DOE is responsible, negligently or in some other actionable manner, for the events and happenings hereinafter referred to, and caused injuries and damages proximately thereby to the plaintiff, as hereinafter alleged.

26. Plaintiff is informed and believes, and thereon alleges, that at all times herein mentioned, defendants PHILIP MORRIS INCORPORATED and defendant DUPAR'S RESTAURANT are corporations organized and existing under and by virtue of the laws of the State of California, or the laws of some state or foreign jurisdiction as more specifically described below, and that said defendants were and are authorized to do and are doing business in the State of California, and that said CIGARETTE DEFENDANT and DUPAR'S RESTAURANT, have regularly conducted business in, and have intentionally placed cigarette products in the stream of commerce whose destination have been and continue to be the County of Los Angeles, and other cities and counties in the State of California.

27. Plaintiff is informed and believes and thereon alleges that Defendant PHILIP MORRIS, INC., is a Virginia corporation, engaged in the business of manufacturing cigarettes and tobacco products for sale and distribution in the United States, and in the State of California as more specifically outlined above. Philip Morris manufactures, advertises and sells Philip Morris, Merit, Cambridge, Marlboro, Benson & Hedges, Virginia Slims, Alpine, Dunhill, English Ovals, Galaxy, Players, Saratoga and Parliament cigarettes throughout the world and in the State of California as more specifically described above.

28. Plaintiff is informed and believes and thereon alleges that co-conspirator BROWN & WILLIAMSON TOBACCO CORPORATION, successor by merger to the American Tobacco Company, is a Kentucky corporation engaged in the business of manufacturing cigarettes and tobacco products for sale and distribution in the world, the United States, and in the State of California as more specifically described above.

29. Plaintiff is informed and believes and thereon alleges that co-conspirator BATUS HOLDINGS, INC., ("Batus Holdings") is a Kentucky corporation engaged in the business of manufacturing cigarettes and tobacco products for sale and distribution in the United States and the world, and in the State of California as more specifically described above.

30. Plaintiff is informed and believes and thereon alleges that co-conspirator BATUS, INC., ("Batus") is a Kentucky corporation engaged in the business of manufacturing cigarettes and tobacco products for sale and distribution in the United States and in the world, and in the State of California as more specifically described above.

31. Plaintiff is informed and believes and thereon alleges that co-conspirator BAT INDUSTRIES, P.L.C. ("BAT Industries") is a British corporation.

32. Plaintiff is informed and believes and thereon alleges that co-conspirator BRITISH AMERICAN TOBACCO COMPANY, L.T.D. ("British American Tobacco") is a British corporation.

33. Plaintiff is informed and believes and thereon alleges that co-conspirators BAT Industries and British American Tobacco are either directly or indirectly the sole shareholder of co-conspirator BROWN & WILLIAMSON.

34. Plaintiff is informed and believes and thereon alleges that co-conspirators BROWN & WILLIAMSON, Batus Holdings, Batus, BAT Industries, and British American Tobacco, either directly or indirectly as part of the same overall organization and operation, manufacture, distribute, offer for sale, promote, and sell Kool, Barclay, BelAir, Capri, Raleigh, Richland, Loredo, Eli Cutter and Viceroy cigarettes throughout the United States and in the State of California as more specifically described above.

35. Plaintiff is informed and believes and thereon alleges that co-conspirator LIGGETT & MYERS is a Delaware corporation engaged in the business of manufacturing cigarettes and tobacco products for sale and distribution in the United States and in the world, including the State of California as more specifically described above. Said co-conspirator manufactures, promotes, distributes, offers for sale, and sells Chesterfield, Decade, L&M, Pyramid, Dorado, Eve, Stride, Generic and Lark cigarettes throughout the United States, the world, and the State of California as more specifically described above.

36. Plaintiff is informed and believes and thereon alleges that co-conspirators THE AMERICAN TOBACCO COMPANY and/or BROWN & WILLIAMSON CORPORATION as successor by merger to THE AMERICAN TOBACCO COMPANY is a Delaware corporation engaged in the business of manufacturing cigarettes and tobacco products for sale and distribution in the United States and in the world, including the State of California as more specifically described above. Said co-conspirator manufactures, promotes, distributes, offers for sale, and sells Lucky Strike, Pall Mall, Tareyton, Malibu, American, Montclair, Newport, Misty, Barkeley, Iceberg, Silk Cut, Silva Thins, Sobrania, Bull Durham and Carlton cigarettes throughout the United States, the world, and California as more specifically described above. Plaintiff is further informed and believes and thereon alleges that THE AMERICAN TOBACCO COMPANY was purchased by BAT Industries.

37. Plaintiff is informed and believes and thereon alleges that co-conspirator R.J. REYNOLDS TOBACCO COMPANY is a New Jersey corporation engaged in the business of manufacturing cigarettes and tobacco products for sale and distribution in the United States and in the world, including the State of California as more specifically described above. Said co-conspirator manufactures, promotes, offers for sale, distributes and sells Camel, Vantage, Now, Doral, Winston, Sterling, Magna, More, Century, Bright Rite and Salem cigarettes throughout the United States, the world, and in the State of California as more specifically described herein.

38. Plaintiff is informed and believes and thereon alleges that co-conspirator Lorillard Corporation is a Delaware corporation engaged in the business of manufacturing cigarettes and tobacco products for sale and distribution in the United States and in the world, including the State of California as more specifically described above. Said co-conspirator manufactures, promotes, offers for sale, distributes and sells Old Gold, Kent, Triumph, Satin, Max, Spring, Newport and True cigarettes throughout the United States, the world, and in the State of California as more specifically described herein.

39. Plaintiff is informed and believes, and thereon alleges, that defendant PHILIP MORRIS, INC., and each of the remaining cigarette manufacturers and DUPAR'S RESTAURANT, are liable for the acts and omissions of their predecessor entities.

40. At all times herein mentioned, CIGARETTE DEFENDANT and defendant DUPAR'S RESTAURANT was the agent, servant, employee and/or joint venturer of its co-defendants, and each of them, and at all said times, each defendant was acting in the full course and scope of said agency, service, employment and/or joint venture.

41. Plaintiff is informed and believes and thereon alleges that co-conspirator DNA PLANT TECHNOLOGY CORPORATION ("DNA") is a California corporation. DNA developed a genetically-engineered tobacco plant which had a much higher nicotine content than other naturally-cured tobaccos. DNA was also involved with defendant BROWN & WILLIAMSON CORPORATION in the conspiracy, described in detail herein, to hide the fact that a genetically-engineered tobacco plant had been commercialized.

42. The conspiracy between DNA Plant Technology and Brown & Williamson led to development of a genetically manipulated, high nicotine, tobacco plant code-named "Y-1."

43. Co-conspirator Brown & Williamson commercially developed a tobacco plant with twice the nicotine content of standard tobacco code-named "Y-1." DNA Plant Technology developed a pollen-free male sterile derivative of the Y-1 tobacco plant ("PLAINTIFF Y-1"). Several million pounds of Y-1 high‑nicotine tobacco were stored in warehouses by Brown & Williamson, and this tobacco was put into cigarettes by Brown & Williamson that have been sold nationwide. One of the intended purposes of this practice was to manipulate nicotine delivery to the smoker, thereby increasing the likelihood of addiction and ensuring continued demand for its product. Over the course of more than a decade, Brown & Williamson conspired to falsely and fraudulently deny both the genetic manipulation of the nicotine content in tobacco plants and the commercialization of such a tobacco plant.

44. Each and every cigarette manufacturer, including CIGARETTE DEFENDANT, is alleged to have been a member of, or participant in, the conspiracy described herein, and each and every act of the conspiracy was directed toward, and accomplished in whole or in part in, the State of California. Each and every act of the conspiracy also had, and will continue to have, a substantial impact in the State of California. The cigarettes and tobacco products manufactured by these co-conspirators were intentionally placed in the stream of commerce whose destination have been, and continue to be, among others, defendant DUPAR'S RESTAURANT, and other premises in the County of Los Angeles and other cities and counties in California. One of the goals of the conspiracy described herein was to create a false controversy regarding the health hazards of tobacco use and the addictive properties of nicotine in order to protect the market for cigarette sales and the profits of the tobacco industry, including CIGARETTE DEFENDANT.

45. Plaintiff herein is a person with standing to bring claims pursuant to Unfair Competition Law, Business and Professions Code section 17204, who for a substantial length of time inhaled smoke from cigarettes manufactured by CIGARETTE DEFENDANT and purchased many of the cigarettes she smoked at DUPAR'S RESTAURANT She began smoking as a minor, prior to 1969, having been influenced and induced to smoke, relying to her detriment upon the continuing aggressive campaign of advertisements, inducements, informational communications, and promotional items to hook youth smokers as hereinafter described in more detail.

46. Plaintiff was not aware that smoking increased her risk of developing, and did cause her to develop, lung cancer, when she was induced by the pre-1969 public advertising and representations by CIGARETTE DEFENDANT to smoke cigarettes as a minor, before any caution or warning labels were placed on cigarette packages by CIGARETTE DEFENDANT pursuant to federal law.

47. Plaintiff was diagnosed with lung cancer on or about February 19, 2001.

48. Had plaintiff known the true facts concerning the magnitude of the health risks of smoking, the addictive nature of nicotine, the intentional manipulation of nicotine levels in cigarettes, or the targeting of her and other youths like her to replace in the market those older cigarette smokers who were dying from smoking, she would never have started smoking. By the time plaintiff was aware that there were indeed deadly health risks associated with smoking, she was addicted, which addiction was maintained by the purposeful actions of CIGARETTE DEFENDANT as described in more detail below.

49. As a direct and proximate result of the aforesaid conduct of defendants, and each of them, plaintiff is dying and has suffered, and continues to suffer permanent injuries to her person, body and health, including but not limited to lung cancer, shortness of breath, anatomical changes to her alveoli, and other lung damage. Plaintiff has further suffered, continues to suffer, and will suffer in the future pain, discomfort, fears, anxiety and other mental and emotional distress directly and proximately caused by the aforesaid conduct of defendants and each of them, all to her general damages in a sum in excess of the jurisdictional limits of the Municipal Court.

50. As a direct and proximate result of the aforesaid conduct of the defendants, and each of them, plaintiff has incurred, is presently incurring and will incur in the future, liability for physicians, surgeons, nurses, hospital care, medicine, hospitals, x-rays and other medical treatment, the true and exact amount thereof being unknown to plaintiff at this time, and plaintiff prays leave to amend this Complaint accordingly when the true and exact cost thereof is ascertained.

51. Plaintiff has lost prejudgment interest pursuant to Civil Code Section 3288, the exact amount of which plaintiff prays leave to insert herein when finally ascertained.

52. As a further direct and proximate result of the said conduct of defendants, and each of them, plaintiff has incurred, and will incur, loss of income, wages, profits and commissions, a diminishment of earning potential, and other pecuniary losses, the full nature and extent of which are not yet known to plaintiff, and leave is requested to amend this Complaint to conform to proof at the time of trial.

FIRST CAUSE OF ACTION -- NEGLIGENCE

(CIGARETTE DEFENDANT)

53. Plaintiff repeats and realleges each and every paragraph set forth above as fully as if restated herein and complains of the CIGARETTE DEFENDANT as follows:

54. The cigarettes designed, manufactured, advertised, marketed, and sold by the CIGARETTE DEFENDANT, included, but were not limited to: MARLBORO and BENSON & HEDGES.

55. The CIGARETTE DEFENDANT's cigarettes, when used as intended, were highly likely to be a substantial contributing factor in causing the following human illnesses, injuries, and conditions:

a. bronchogenic carcinoma or lung cancer of all cell types;

b. chronic, obstructive pulmonary disease of all types, including emphysema, chronic bronchitis, and reversible airway obstruction;

c. cardiovascular disease including atherosclerosis and its consequences, including myocardial infarction (heart attack), cerebrovascular accident (stroke), peripheral vascular disease, aneurysm, and other conditions;

d. cancers of the mouth, throat, larynx, esophagus, kidney, bladder, and other organs;

e. genetic damage to cells of the airways, lungs, and other organs;

f. impairment of lung function; and,

g. other types of injuries.

So highly likely were the serious health consequences of defendant's cigarettes, that over one in three foreseeable users would be expected to suffer premature death or serious impairment.

56. At times material, the ordinary consumer, including the plaintiff, did not in the exercise of ordinary diligence know of the likelihood of, the severity of, or the extent of the risks from CIGARETTE DEFENDANT's cigarettes, which are outlined above.

57. CIGARETTE DEFENDANT' cigarettes, when used as intended, were highly likely to induce in foreseeable users a state of addiction, habituation, habit formation, and/or dependence, characterized by users' inability to terminate or restrict their chronic use.

58. The risks of harm to foreseeable users as listed above would increase in any of the following circumstances:

a. greater cumulative consumption, including rate of consumption and length of time the product was consumed; and

b. beginning use at an early age in life.

59. At times material, and specifically prior to 1969, CIGARETTE DEFENDANT conducted an aggressive marketing, promotional and advertising campaign intended to induce foreseeable users, particularly youths, to purchase their cigarettes. Such marketing and advertising occurred in printed media, on television, radio, on billboards and by other means. After 1969, CIGARETTE DEFENDANT issued informational literature and other writings, as well as coupons-for-gifts and inducements intended to induce foreseeable users, particularly youths, to purchase their cigarettes.

60. Plaintiff purchased and consumed defendants' cigarettes within the State of California at times material to this complaint.

61. Plaintiff consumed CIGARETTE DEFENDANT's cigarettes in the intended manner and without significant change in their condition from purchase.

62 Plaintiff was induced to purchase the cigarettes and impliedly or expressly instructed in their use by defendants' advertising and promotion prior to 1969, and at all times material herein by CIGARETTE DEFENDANT's marketing, public statements, "informational" communications, sponsorship of athletic events, concerts, and other activities, and inducements such as coupon-for gifts and other efforts.

63. At times material to this action, CIGARETTE DEFENDANT actually knew, or in the discharge of ordinary care should have known of the following:

a. that the harms listed above would or might occur if the cigarettes were used as intended;

b. that the harms listed above would more likely be experienced if users did not restrict their intake of defendants' cigarettes, or if they began to use the products at an early age.

c. that use of the products as intended was likely to lead to addiction, habituation, and/or dependence, particularly if begun at an early age;

d. that termination or limitation of use would be exceedingly difficult if consumption was initiated and that this difficulty would increase as cumulative consumption increased;

e. that developing knowledge before and after 1970 demonstrated that previous users are at great risk of harm (as listed above) and should seek medical monitoring;

f. that CIGARETTE DEFENDANT could establish a reasonably safe dose for foreseeable users;

g. that there were feasible improvements in design, composition, or manufacture of cigarettes such as to materially decrease the foreseeable risk to user;

that switching to the so-called "light" cigarette would not be less hazardous because the individual would compensate for the decreased nicotine levels by smoking more;

that the FTC method of measuring "tar & nicotine" levels underestimated the levels of nicotine actually delivered; and

that adding ammonia, or otherwise altering the PH of the tobacco, enhanced the delivery of nicotine, thereby increasing addiction and/or dependence.

64. CIGARETTE DEFENDANT at times material had the following legal duties to users who consumed their cigarettes:

a. prior to 1969, duty to foreseeable users of CIGARETTE DEFENDANT's cigarettes to warn of the likelihood, probability, and/or foreseeability that the harms listed above would or might occur if the products were used as intended.

b. prior to 1969, a duty to foreseeable users to warn that the harms listed above would be more likely experienced if users did not restrict their intake of CIGARETTE DEFENDANT's cigarettes and/or to provide some guidelines on reasonably safe dosage or amount of consumption, and a duty to warn that use of the cigarettes at an early age was most harmful;

c. prior to 1969, a duty to warn foreseeable users that use of the cigarettes as intended was likely to lead to addiction, habituation and/or dependence;

d. prior to 1969, a duty to warn users that termination or limitation of use of cigarettes would be extremely difficult if consumption was initiated, particularly at an early age and that this difficulty would increase as cumulative consumption increased;

e. a continuing duty to warn previous cigarette users of developing knowledge demonstrating that previous users are at great risk of harm (as listed above) and should seek medical monitoring;

f. a duty to establish a reasonable dose for foreseeable users;

g. a duty to design, manufacture, and sell cigarettes that when used as intended was reasonably safe for foreseeable users;

h. a duty to make such feasible improvements in design, composition, or manufacture of cigarettes such as to materially decrease the foreseeable risk to users;

i. a duty to disclose to consumers of cigarettes the results of their own and other scientific research known to them which indicated that use of cigarettes caused users a great risk of harm (as listed above);

j. a duty to warn previous users, users and foreseeable users of cigarettes through non-advertising or promotional communications of the dangers listed above;

k. a continuing legal duty to refrain from manufacturing, selling, and/or promoting the sale of cigarettes to minors and youths pursuant to Penal Code sections 272.

65. CIGARETTE DEFENDANT had a legal duty to refrain from selling, promoting, targeting, and inducing the sale of cigarettes to minors pursuant to but not limited to the following, Penal Code section 308.

66. CIGARETTE DEFENDANT negligently breached one or more of the duties, pursuant to Business and Professions Code section 17200 et seq. and otherwise, to members of the general public, including cigarette users such as plaintiff, in one or more of the following ways:

a. prior to 1969, in failing to warn or warn adequately of the likelihood, probability, or foreseeability that the harms listed above would or might occur if the CIGARETTE DEFENDANT's cigarettes were used as intended.

b. prior to 1969, in failing to warn or warn adequately that the harms listed above would be more likely experienced if users did not restrict their intake of defendants' cigarettes, and/or in failing to provide some guidelines on reasonably safe dosage or amount of cigarette consumption, and/or in failing to warn that use of their cigarettes at an early age was exceedingly harmful;

c. prior to 1969, in failing to warn or warn adequately that use of cigarettes as intended was likely to lead to addiction, habituation or dependence, particularly if begun at an early age;

d. prior to 1969, in failing to warn or warn adequately that termination or limitation of cigarette use would be exceedingly difficult if cigarette consumption was initiated and that this difficulty would increase as cumulative consumption increased;

e. prior to 1969, in failing to warn or warn adequately of developing knowledge demonstrating that previous users of cigarettes are at great risk of harm (as listed above) and should seek medical monitoring;

f. in failing to establish a reasonably safe dose for foreseeable users, of their cigarettes, if any such safe dose exists;

g. in designing, manufacturing, selling, and promoting the sale cigarettes that when used as intended were not reasonably safe for foreseeable users;

h. in failing to make such feasible improvements in design, composition or manufacture, of their cigarettes such as to materially decrease the foreseeable risk to users;

i. prior to 1969, in failing to disclose to plaintiff and other foreseeable users of their cigarettes of the defendants' own scientific and other scientific research known to them which disclosed that use of cigarettes as intended caused a great risk of harm as described above; and,

j. in furtherance of the ongoing conspiracy described below, and to deceive, conceal material information, while simultaneously affirmatively misrepresenting to plaintiff and other members of the public, through continuing advertising campaigns in the print, radio, cinema and television media until 1969, and prior and after 1969 in "informational" communications, sponsorship of sports activities, concerts, and other events, testimony and public statements by officers, agents and employees of the CIGARETTE DEFENDANT that the cigarettes manufactured, sold, or distributed by defendants were safe in their ordinary and foreseeable use, which induced plaintiff to unknowingly expose himself/herself to the hazards of cigarettes. Further, plaintiff was induced to begin smoking because these defendants targeted, and continue to target, youths as young as under 10 to hook them early on their cigarettes to replace older, dying smokers. The following are but a representative sample of the literally thousands of advertisements and promotions prior to 1969, and deceptive and fraudulent "informational" communications and authorized public statements thereafter, the defendants used, defendant DUPAR'S RESTAURANT impliedly endorsed and authorized to use, and continue to use:

1. Beginning in 1952 and continuing for many years up to 1969, defendant Liggett & Meyers promised in their Chesterfield pre-1969 advertisements and post-1969 statements:

. . .[P]roved by over 40 years of continuous use. . .as entirely safe for use in the mouth - chemically pure, far more costly glycerol and pure sugars which are natural to tobacco - nothing else. [bold emphasis added]

- - -

A medical specialist is making regular bi-monthly examinations of a group of people from various walks of life. 45 percent of this group have smoked Chesterfield for an average of over ten years.

After eight months, the medical specialist reports that he observed no adverse effects on the nose, throat and sinuses of the group from smoking Chesterfield.

2. Beginning in 1951 and continuing for many years up to 1969, defendant R.J. Reynolds advertised, and after 1969 stated, that its Camel cigarettes were "tested" by "noted throat specialists":

Not one single case of throat irritation due to smoking camels!

- - -

More doctors smoke Camels than any other cigarette

3. In 1962, the Tobacco Institute issued a press release promising:

We in the tobacco industry recognize a special responsibility to help science determine the facts.

4. In 1972, James Bowling, a Vice President of defendant Philip Morris, Inc., was quoted as saying:

If our product is harmful . . .we'll stop making it. We now know enough that we can take anything out of our product, but we don't know what ingredients to take out. . .

5. In 1978, a Tobacco Institute informational pamphlet stated:

The flat assertion that smoking causes lung cancer and heart disease and that the case is proved is not supported by many of the world's leading scientists.

6. In 1983, RJR represented:

It has been stated so often that smoking causes cancer, it's no wonder most people believe this is an established fact. But, in fact, it is nothing of the kind. The truth is that almost three decades of research have failed to produce scientific proof for this claim . . . in our opinion, the issue of smoking and lung cancer is not a closed case. It's an open controversy.

k. In furtherance of the conspiracy detailed above and below, CIGARETTE DEFENDANT carried out an ongoing campaign of financial and other inducements and rebates offered to, and accepted by, co-conspirator supermarkets, convenience stores, and other point of sale retailers including but not limited to DUPAR'S RESTAURANT in return for said co-conspirators' agreement to place cigarettes prominently in areas at eye-level designed to entice, tempt, and induce consumers, particularly minors, including plaintiff, to purchase cigarettes at retail facilities. The profits from these sales, resulting from the targeting of minors to attract new smokers and repeat, already-addicted smokers, ranged to 15-20% to a high of 40-50% of overall profits gained by the co-conspirator point of sale retailers including, but not limited to DUPAR'S RESTAURANT

Plaintiff is unable to allege in full the thousands of statements that defendants have prepared and released over the last almost 50 years both because they do not have access to this information, and because to allege each and every such advertisement or point-of-sale enticement here would entail hundreds or even thousands of pages of pleading; indeed, it is the CIGARETTE DEFENDANT and the co-conspirators themselves which have this knowledge and information, and are in the best position to know the content of each and every such advertisement released in furtherance of their conspiracy, and to mislead the public and plaintiff, misrepresent the true hazards and addictive nature of smoking, and to conceal material facts from the public, the government, and plaintiff.

67. As a direct and proximate result thereof, plaintiff has suffered damages as more specifically set forth above.

WHEREFORE, plaintiff prays for judgment against the CIGARETTE DEFENDANT as hereinafter set forth.

SECOND CAUSE OF ACTION -- STRICT LIABILITY

(CIGARETTE DEFENDANT)

68. Plaintiff repeats and realleges all foregoing paragraphs as if fully stated herein.

69. The CIGARETTE DEFENDANT's cigarettes when used as intended and without substantial change from the time of manufacture, were defective for foreseeable users and bystanders for the following reasons:

a. the cigarettes when used as intended caused or contributed to the illnesses listed in paragraph 32 above;

b. the cigarettes were addictive, habituating, habit-forming, and once used caused physical and psychological dependence;

c. the cigarettes failed to perform as safely as an ordinary consumer would expect when used as intended or in a manner reasonably foreseeable by the plaintiff;

d. the risk of danger from the design of defendants' cigarettes outweighed the benefits obtained with the use of the products; and,

e. prior to 1969, defendants' cigarettes did not contain sufficient warnings as previously alleged, or alternatively, were labeled with inadequate warnings.

70. Plaintiff's illness is a direct and proximate result of the defects set forth above and the plaintiff has suffered damages more fully described above.

71. The acts and conduct of CIGARETTE DEFENDANT, as set forth herein were motivated by the financial interests of CIGARETTE DEFENDANT in the continuing, uninterrupted distribution and marketing of cigarettes and tobacco products and the acquisition of new, youthful consumers. In pursuance of said financial motivation, the CIGARETTE DEFENDANT consciously disregarded the safety of the users of, and persons exposed to the smoke of, cigarettes and other tobacco products, and were in fact, consciously willing to permit cigarettes and tobacco products to cause injury to smokers and bystanders exposed to the smoke, including plaintiff.

72. The conduct of CIGARETTE DEFENDANT as described herein was and is willful, malicious, outrageous, and in conscious disregard and indifference to the safety and health of the public, including plaintiffs. For the sake of example, and by way of punishing the CIGARETTE DEFENDANT, plaintiffs seek punitive damages according to proof.

WHEREFORE, plaintiff prays for judgment against the CIGARETTE DEFENDANT as hereinafter set forth.

THIRD CAUSE OF ACTION -- FALSE REPRESENTATION

(CIGARETTE DEFENDANT)

73. Plaintiff repeats and realleges each of the foregoing paragraphs as if fully stated herein.

74. At the aforementioned time when the CIGARETTE DEFENDANT manufactured and distributed, tested, designed, packaged, sold, and/or placed into the stream of commerce in and into the State of California numerous brands of defective cigarettes, or other tobacco products, or, in the course of business, materially participated with, conspired with, and/or otherwise aided, abetted, and assisted others in so doing, CIGARETTE DEFENDANT, expressly and impliedly represented to members of the general public, including the purchasers, users and bystanders of said product, and including the plaintiff herein, that cigarettes and other tobacco products were of merchantable quality, and safe for the use for which they were intended. CIGARETTE DEFENDANT accomplished these representations and induced members of the public and government, including plaintiff, to rely thereon through, among other methods, an aggressive and continuing campaign up to 1969 of deceptive, erroneous, misleading, and false advertisements in the print, cinema, radio and television media designed to conceal the true health hazards and addictive nature of cigarettes and to lure new, especially youthful, users to replace the older ones who died. After 1969, the aforesaid CIGARETTE DEFENDANT continued to disseminate deceptive, erroneous, misleading, and false statements concerning the state of the medical research concerning cigarettes and the diseases they cause, as well as the extent of health hazards and the addictive nature of cigarettes and continued to lure new, especially youthful smokers to replace the older ones who died via "informational" communications, the dissemination of coupons and gifts, the underwriting of sports, concerts, and other such events, and the "underwriting" of purportedly scientific research and studies.

75. Plaintiff relied, to her detriment, upon the representations of CIGARETTE DEFENDANT and co-conspirator wholesalers and retailers in many of the literally thousands of pre-1969 advertisements and promotional activities, and pre- and post-1969 dissemination of free cigarettes, and informational communications aimed at members of the public and the California and federal government, and consumers, including plaintiff.

76. Said representations by CIGARETTE DEFENDANT and co-conspirator wholesaler and retailer entities, and each of them, were false and untrue, in that cigarettes and other tobacco products were not safe for their intended use, nor were they of merchantable quality as represented by defendants, and each of them, in that cigarettes and tobacco products have very dangerous properties and defects whereby said products cause lung cancer and other lung disabilities, heart disease, and have other defects that cause injury and damage to the users of said products and bystanders to those users, including plaintiff herein, thereby threatening the health and life of plaintiff.

77. As a direct and proximate result of said false representations by defendants and each of them, the plaintiff sustained the injuries and damages hereinabove set forth.

78. The acts and conduct of CIGARETTE DEFENDANT, as set forth herein were motivated by the financial interests of CIGARETTE DEFENDANT in the continuing, uninterrupted distribution and marketing of cigarettes and tobacco products and the acquisition of new, youthful consumers. In pursuance of said financial motivation, the CIGARETTE DEFENDANT consciously disregarded the safety of the users of, and persons exposed to the smoke of, cigarettes and other tobacco products, and were in fact, consciously willing to permit cigarettes and tobacco products to cause injury to smokers and bystanders exposed to the smoke, including plaintiff.

79. The conduct of CIGARETTE DEFENDANT as described herein was and is willful, malicious, outrageous, and in conscious disregard and indifference to the safety and health of the public, including plaintiffs. For the sake of example, and by way of punishing the CIGARETTE DEFENDANT, plaintiffs seek punitive damages according to proof.

WHEREFORE, Plaintiff prays judgment against CIGARETTE DEFENDANT, and each of them, as hereinafter set forth.

FOURTH -- DECEIT, FRAUDULENT CONCEALMENT

(CIGARETTE DEFENDANT)

80. Plaintiff realleges and incorporates by reference each of the foregoing paragraphs and makes them a part hereof as though fully set forth herein.

81. Beginning at an exact time unknown to plaintiff, and continuing even today, CIGARETTE DEFENDANT have carried, and continue today to carry out a campaign designed to deceive the public, plaintiff, the government, and others as to the health hazards of smoking, the addictive nature of smoking, to conceal their knowledge concerning these things, the results of their own research, and to misrepresent their actual role in manipulating the addictive properties of cigarettes via ammonia and other additives and/or via the engineering of higher nicotine tobaccos.

82. CIGARETTE DEFENDANT made literally hundreds of misrepresentations to plaintiff and others over the course of the last 40 years. Plaintiff is unable to allege in full the thousands of pre-1969 advertisements, and the continuing press releases, "frank statements," testimony by tobacco manufacturers' officers and employees before Congress and other governmental entities, etc., that defendants and their coconspirators, the Tobacco Institute and TIRC, have prepared, participated in, given, and released over the last almost 50 years both because they do not have access to this information, and because to allege each and every such misrepresentation, false statement, and concealment of material information here would entail hundreds or even thousands of pages of pleading; indeed, it is CIGARETTE DEFENDANT and it co-conspirators themselves which have this knowledge and information, and are in the best position to know the contents of each and every such misrepresentation, false statement, and concealment of material information.

83. CIGARETTE DEFENDANT and its co-conspirators carried out their campaign of fraud, false statements, misrepresentations, and concealment of material information in three ways: First, they agreed falsely to represent to plaintiff and others that questions about smoking and health would be answered by a new, unbiased, and trustworthy source. Second, they misrepresented, suppressed and confused the facts about the health dangers of smoking, including addiction. They concealed their actual knowledge concerning their own negative health and addiction research results and their manipulation and control of the nicotine content of their products to create and perpetuate smokers' addiction to cigarettes were critical to the conspiracy. CIGARETTE DEFENDANT claimed, falsely, that there is insufficient "objective" research to determine if cigarette smoking causes disease and that cigarettes are not addictive. The success of the conspiracy depended upon the concerted action of the cigarette manufacturers [in a so-called "gentleman's agreement"], for otherwise the revelation by one company of what it knew about the health consequences of smoking and/or the availability of a "safe(r)" cigarette and/or the addictive nature of the manufacturers' cigarettes would have thwarted the conspiracy. Third, CIGARETTE DEFENDANT used lawyers to misdirect what purported to be objective scientific research to create favorable, and to suppress and/or destroy unfavorable findings regarding the health consequences of smoking. To discourage meritorious litigation by plaintiffs injured due to tobacco, they engaged in "scorched earth" litigation tactics in combination with suppressing and distorting evidence in order to protect CIGARETTE DEFENDANT's existence and profits.

84. The following allegations are a representative sample:

In January, 1954, when CIGARETTE DEFENDANT and its co-conspirators announced they were establishing a joint industry group known as the Tobacco Industry Research Committee, TIRC, they simultaneously pledged, through TIRC, aid and assistance to the research efforts into all phases of tobacco use and health, expressly undertaking an interest in health as their basic responsibility paramount to every other consideration. At the same time, CIGARETTE DEFENDANT represented that there was no proof that cigarette smoking is one of the causes of lung cancer. When they made these representations, CIGARETTE DEFENDANT and its co-conspirators intended that the public, including plaintiff, would both believe in and rely upon this public announcement, and they knew or should have known that these pronouncements would permeate the public conscience and allow present and future smokers to believe that, despite what they may have heard elsewhere, the hazards of cigarette smoking had not been proven:

A. In 1962, The Tobacco Institute, Inc., an agent of CIGARETTE DEFENDANT, ("Tobacco Institute") issued a press release which stated, in pertinent part:

We in the tobacco industry recognize a special responsibility to help science determine the facts. And we believe we are fulfilling this responsibility through the Tobacco Industry Research Committee.

B. In 1971, the Tobacco Institute in a press release stated:

Any organization in a position to apply resources in the search for those keys -- and which fails to do so -- will continue to be guilty of cruel neglect of those whom it pretends to serve.

C. In a 1972 Wall Street Journal article, James Bowling, a Vice President of defendant Philip Morris, Inc. ("PM") was quoted as saying:

If our product is harmful . . . we'll stop making it. We now know enough that we can take anything out of our product, but we don't know what ingredients to take out. . .

D. In 1982, the Tobacco Institute published a pamphlet in which it wrote:

Since the first questions were raised about smoking as a possible health factor, the tobacco industry has believed that the American people deserve objective, scientific answers. The industry has committed itself to this task.

E. In 1990, a public relations employee of co-conspirator R.J. Reynolds Tobacco Company ("RJR") wrote a letter to a person by the name of Rock in Minnesota, apparently in response to a letter from Rock. The public relations employee asserted in that letter that " . . . scientists do not know the cause or causes of the chronic diseases reported to be associated with smoking." The letter went on:

Our company intends, therefore, to continue to support [research] in a continuing search for answers.

85. On August 21, 1963, CIGARETTE DEFENDANT and its co-conspirators met to discuss their defense of the impending cancer litigation they expected in the wake of the Surgeon General's first report linking smoking and lung cancer. The September 3, 1963, minutes of that meeting reflect the fact that a Dr. Kotin, their own employee as the scientific adviser of the TIRC, would soon become the associate director of the National Cancer Institute. Additionally, CIGARETTE DEFENDANT and co-conspirators "unanimously agreed" . . . if there was to be a statement after the Surgeon General's report, it should be an industry statement rather than separate statements by one or more companies. This would obviate the possibility that a statement by one company might be inconsistent with that made by another. The same method of procedure was recommended as well in the event of a Federal Trade Commission (FTC) or Congressional action."

86. CIGARETTE DEFENDANT and its co-conspirators concealed their actual knowledge concerning their manipulation and control of the nicotine content of their products to create and perpetuate smokers' addiction to cigarettes, which was critical to the conspiracy as set forth below.

87. Co-conspirator Brown & Williamson developed a genetically-engineered tobacco plant which had a much higher nicotine content than other naturally-cured tobaccos, code-named "Y-1."

88. The conspiracy between DNA Plant Technology and Brown & Williamson led to development of a pollen-free male sterile derivative of the high-nicotine "Y-1" tobacco plant, "PLAINTIFF Y-1."

89. The Food and Drug Administration first learned of the existence of "Y-1" in Portugal with the discovery of a Brazilian patent for a new variety of flue‑cured tobacco plant. The English translation of the patent stated: "The nicotine content of the leaf of this variety is usually higher than approximately 6% by weight . . . which is significantly higher than any normal variety of tobacco grown commercially."

90. Prior to the discovery of the patent, a tobacco industry executive had told the Food and Drug Administration ("FDA") that "flue-cured tobacco naturally contains 2.5 to 3.5 percent nicotine." Thus, this new specially bred plant contained approximately twice the nicotine that naturally occurs in flue-cured tobacco. The holder of the Brazilian Y-1 patent was Brown & Williamson Tobacco Corporation.

91. The CIGARETTE DEFENDANT and its co-conspirators have repeatedly stated for the public record that they do not manipulate nicotine levels in cigarettes. However, the plant described in this patent represents a dramatic attempt to manipulate nicotine. Moreover, when the FDA asked company officials whether tobacco plants were bred specifically for higher nicotine content, they were told that this was not feasible. CIGARETTE DEFENDANT asserted that tobacco growers and cigarette manufacturers had an agreement that the nicotine level of new varieties of tobacco grown in the United States would vary only slightly from the levels of standard varieties. Supposedly, under this agreement, a new high‑nicotine tobacco plant that varied more than slightly from the standard variety could not be commercially grown by farmers in the United States.

92. Nevertheless, the FDA learned that interest in developing a high-nicotine tobacco plant dated back to at least to the mid-1970's. In 1977, Dr. James F. Chaplin stated:

"manufacturers have means of reducing tars but most of the methods reduce nicotine and other constituents at the same time. Therefore it may be desirable to develop levels constant or to develop lines higher in nicotine so that when the tar and nicotine are reduced there will still be enough nicotine left to satisfy the smoker."

93. In truth, Dr. Chaplin had been working on genetically breeding tobacco plants with varying nicotine levels. In a 1977 paper, Dr. Chaplin indicated that tobacco could be bred to increase nicotine levels, specifically by cross-breeding commercial varieties of tobacco with Nicotiana rustica, which is a wild variety, very high in nicotine, but not used commercially in cigarettes because it is considered too harsh. However, Dr. Chaplin told the FDA that his specially bred plants were not commercially viable because they did not grow well and literally did not stand up in the field. Furthermore, he indicated that he was surprised that he could not get the nicotine levels as high as he anticipated. In fact, in his 1977 paper, the highest nicotine level he reported in these specially bred lines was 3.4 percent total nicotine, within the normal range for flue-cured tobacco.

94. Over the next several years Dr. Chaplin continued his efforts to breed a tobacco plant with a higher nicotine level. During that time, an employee of a Brown & Williamson-affiliated company asked Dr. Chaplin for some of his seeds. Some of Dr. Chaplin's original plant varieties were used as a basis for Brown & Williamson's work. In the early 1980'S, Brown & Williamson grew a number of different plant lines, selecting those that had the best agronomic characteristics.

95. In 1983, co-conspirator Brown & Williamson contracted with DNA Plant Technology to work on tobacco breeding. Much of the developmental work on "Y-1" took place in the laboratories, greenhouses, and fields owned by DNA Plant Technology. After he retired from the USDA, in 1986, Brown & Williamson also hired Dr. Chaplin as a consultant to work on "Y-1" and other projects.

96. The high-nicotine tobacco variety "Y-1" was developed by a combination of conventional and advanced genetic breeding techniques. The value of "Y-l" to Brown & Williamson is reflected in the fact that Brown & Williamson had DNA Plant Technology make "Y-1" into a male sterile plant. This procedure ensures that when a plant is grown it will not produce seeds that can be appropriated by others.

97. Brown & Williamson characterized its achievement in a patent filing as follows:

"By the present invention or discovery, applicants have succeeded in developing a tobacco plant that is agronomically and morphologically suitable for commercial tobacco production, i.e. it closely resembles SC 58, and provides a pleasant taste and aroma when included in smoking tobacco products, yet it is possessed of the N. rustica high-nicotine attribute. So far as we know, this has not been accomplished before . . . "

What was accomplished was the development of a tobacco plant with a high-nicotine content -- about 6 percent -- that grew well and could be used commercially.

98. DNA Plant Technology and Dr. Chaplin both told the FDA that they saw "Y-1" growing in Rio Grande du Sul, Brazil in the 1980's. These farms were under contract to Souza Cruz Overseas, a sister company of Brown & Williamson.

99. Until December 13, 1991, export of tobacco seeds or live tobacco plants was prohibited under Federal law unless a Tobacco Seed Plant Export Permit (Form TB-3 7) was granted by the United States Department of Agriculture. Such a permit could be granted only after satisfactory proof was offered that the seeds or plants were to be used solely for experimental purposes and then only in amounts of a half a gram or less.

100. Brown & Williamson and DNA Plant Technology each informed the FDA that they believed the other may have been responsible for the shipment of "Y-1" seeds outside the United States. Both companies were asked to furnish copies of any Tobacco Seed Plant Export Permits for "Y-1."

101. Subsequently, DNA Plant Technology falsely and fraudulently informed the FDA that, as far as DNA Plant Technology knew, "Y-1" was never commercialized. However, the FDA obtained two invoices filed with the U.S. Customs Service in 1992. The invoices were addressed to Brown & Williamson Tobacco Corporation, Louisville, Kentucky from Souza Cruz Overseas. They referred to "Your Order Project "Y-1" and revealed that more than one-half a million pounds of Y-1 tobacco were shipped to Brown & Williamson in 1992. Eventually, after discovery of these invoices, Brown & Williamson informed the FDA that, in fact, three and a half to four million pounds of "Y-1" tobacco has been stored in company warehouses in the United States. More significantly, Brown & Williamson revealed that "Y-1" had, in fact, been commercialized.

102. Brown & Williamson brands of cigarettes were manufactured and distributed nationally in 1993 with a tobacco blend that contained approximately 10 percent of this genetically-bred high-nicotine tobacco called "Y-1."

103. It is uncontroverted that smoking-caused diseases, including lung cancer, are dose dependent; that is, each and every exposure to these carcinogens increases the risk of disease. Thus, each and every cigarette, which contained the high-nicotine tobacco "Y-1," smoked by consumers was a substantial factor contributing to the development of various smoking-related diseases suffered by such consumers.

104. In January of 1998, DNA was indicted for illegally exporting tobacco seeds and pled guilty.

105. DNA and Brown & Williamson were interested in controlling and manipulating nicotine in cigarettes because senior industry officials were well aware that nicotine is the critical ingredient in cigarettes and the one ingredient that guarantees continued usage by consumers.

106. The addictive effect of nicotine has long been known and concealed by the CIGARETTE DEFENDANT and its co-conspirators. The intentional concealment of facts concerning nicotine, as well as CIGARETTE DEFENDANT's manipulation of both the nicotine content in cigarettes and the use of other chemicals to further enhance the addictive qualities of nicotine have is shown by the following representative examples. The CIGARETTE DEFENDANT's efforts included Brown & Williamson's rejection of its own general counsel's advice in 1963 to disclose to the U.S. Surgeon General what the company knew about the adverse effects of smoking on health and the addictiveness of nicotine. They included advice by another Brown & Williamson general counsel in 1985 to remove documents and files and to ship documents out of the United States. CIGARETTE DEFENDANT and its co-conspirators became aware that cigarette smoking is probably hazardous to the smoker, as reflected in excerpts from industry documents:

A. In 1959, an RJR scientist, Alan Rodgman, concluded that there is a "distinct possibility" that substances in cigarette smoke could have a carcinogenic effect.

B. In 1962, Rodgman wrote:

The amount of evidence accumulated to indict cigarette smoke as a health hazard is overwhelming, [while] the evidence challenging the indictment is scant.

C. In 1967, G.F. Todd of the Tobacco Research Council wrote a letter to Mr. Addison Yeaman. Yeaman was the Vice President and general counsel of Brown & Williamson Tobacco Corporation. In his letter, Todd observed:

The only real difficulties that we encountered arose out of the unavoidable paradox at the center of our operations -- namely that, on the one hand the manufacturers control TRC's operations and do not accept that smoking has been proved to cause lung cancer while, on the other hand, TRC's research program is based on the working hypothesis that this has been sufficiently proved for research purposes. In addition, the Council senior scientists accept that causation theory . . . We have not yet found the best way of handling this paradox.

D. In 1979, P.N. Lee of BAT expressed his impressions of a 1979 Surgeon General's report dated January 11, 1979. In this memorandum, Lee considered at length the Tobacco Institute publication entitled "The Continuing Controversy," also identified as TA73. Lee characterized that report as "misleading." He wrote that the report did not appear to understand what causation is. Lee wrote:

Discussion of the role of other factors can be particularly misleading when no discussion is made of relative magnitudes of effects. For example, heavy smokers are observed to have 20 or more times the lung cancer rates of non-smokers. Sure, this does not prove smoking causes lung cancer, but what it does mean, and TA73 never considers this, is that for any other factor to explain this association, it must have at least as strong an association with lung cancer as the observed association for smoking (and be highly correlated with the smoking habit).

* * *

TA73 seems ready to accept evidence implicating factors other than smoking in the aetiology of smoking associated disease without requiring the same stringent standards of proof that it requires to accept evidence implicating smoking. This is blatantly unscientific.

E. In 1984, a paper written by Colin Grieg for BAT describes a cigarette as " . . . a 'drug' administration system for public use . . . " It further went on to state:

Within 10 seconds of starting to smoke, nicotine is available in the brain. Before this, impact is available giving an instantaneous catch or hit, signifying to the user that the cigarette is 'active.' Flavor, also, is immediately perceivable to add to the sensation.

107. Joint industry research efforts undertaken by TIRC and CTR were neither disinterested nor objective. Industry documents, recently revealed, show that CTR functioned not for the promotion of scientific goals, but for purposes of public relations, politics, and positioning for litigation. The TIRC and CTR were used to support an industry strategy of denying or creating doubt that smoking causes disease. When CTR-sponsored research produced results unfavorable to the industry strategy, the results were suppressed.

108. As recounted in recently revealed excerpts, lawyers, rather than scientists or researchers, handled the purported scientific research conducted by or for CIGARETTE DEFENDANT and its co-conspirators:

A. In 1978, Sheldon Sommers, M.D., who was then Chairman of the CTR Scientific Advisory Board, complained to William Gardner, who was then the Scientific Director for CTR, that he [Sommers] was unable to understand the legal counsel he was being given. The clear import of Sommers' letter was that the CTR lawyers were controlling tobacco research by CTR based upon legal considerations.

B. In 1970, Helmut Wakeham, head of Research and Development of the Philip Morris Company wrote a memorandum to the president of Philip Morris, Joseph Cullman. In this memorandum, Wakeham discussed the raison d'etre of The counsel for Tobacco Research-U.S.A., Inc. ("CTR"). Wakeham wrote:

It has been stated that CTR is a program to find out the 'truth about smoking health.' What is truth to one is false to another. CTR and the industry have publicly and frequently denied what others find as 'truth.' Let's face it. We are interested in evidence which we believe denies the allegations that cigarette smoking causes disease.

C. A hand-written memorandum dated April 21, 1978, produced from the files of Defendant Lorillard Tobacco Company ("Lorillard"), complains that:

We have again abdicated the scientific research directional management of the Industry to the 'Lawyers' with virtually no involvement on the part of the scientific or business management side of the business.

D. A 1976 internal memo by a tobacco scientist at BAT, S.J. Green, also discusses the extent to which "legal considerations" dominated scientific research:

The public position of tobacco companies with respect to causal explanations of the association of cigarette smoking and diseases is dominated by legal considerations . . . By repudiation of a causal role for cigarette smoking in general they [the companies] hope to avoid liability in particular cases. This domination by legal consideration thus leads to the industry into a public rejection in total of any causal relationship between smoking and disease and puts the industry in a peculiar position with respect to product safety discussions, safety evaluations, collaborative research, etc.

E. In November 1979, the corporate counsel for B&W, Kendrick Wells, wrote a memorandum to Ernest Pepples, B&W's vice president of law. In this memorandum, Wells outlined a plan to wrap scientific information in attorney-client privilege. Mr. Wells' proposal specifically provided that ". . .in the operational context BAT would send documents without attempting to distinguish which were and which were not litigation documents."

109. When cigarette manufacturers were sued by persons claiming their or their decedents' lung cancer was caused by smoking, to avoid liability CIGARETTE DEFENDANT and its co-conspirators denied that cigarettes are addictive and claimed that smoking was a matter of free choice and the claimant (or his or her decedent) could quit smoking if they chose.

110. CIGARETTE DEFENDANT claimed attorney-client privilege for, and refused to produce, or ordered destroyed, documents which were scientific in nature and specifically related to health issues.

111. CIGARETTE DEFENDANT, when sued for smoking-related injuries, conducted the litigation in such a way as to cause the maximum expenditure of time and resources by the claimant. CIGARETTE DEFENDANT consistently adopted the strategy that they would defend every claim, no matter what the cost, and spare no cost in exhausting their adversaries' resources. As set forth in the published opinion in Haines v. Liggett Group, Inc., 814 F.Supp. 414 (D. N.J. 1993), the attitude of CIGARETTE DEFENDANT is exemplified by a statement attributed to counsel for RJR in reference to cases filed in Northern California just prior to the 1988 statute, California Code §1714.45:

The aggressive posture we have taken regarding depositions and discovery in general continues to make these cases extremely burdensome and expensive for plaintiffs' lawyers, particularly sole practitioners. To paraphrase General Patton, the way we won these cases was not by spending all of [RJR's] money, but by making the other son of a bitch spend all of his.

112. The aforementioned intentional acts by CIGARETTE DEFENDANT and its co-conspirators, as described more fully below, resulted in plaintiff being unaware the extent to which smoking presented a serious hazard to her health, that the nicotine therein would addict her to smoking, or that CIGARETTE DEFENDANT had manipulated the delivery of nicotine in such a way as to increase the likelihood of addiction of which would cause her to develop, and indeed she has developed, lung cancer, from which she will in all probability die in the near future. Had plaintiff known the true dangers of smoking, the extent of the health risk smoking posed, that she as a minor was being targeted by the CIGARETTE DEFENDANT to replace older, dying smokers, or the addictive nature of nicotine, or the deliberate manipulation of nicotine levels, she would not have smoked. These actions proximately and legally caused the injuries she has sustained and the damages plaintiff claims herein.

113. The acts and conduct of CIGARETTE DEFENDANT, as set forth herein were motivated by the financial interests of CIGARETTE DEFENDANT in the continuing, uninterrupted distribution and marketing of cigarettes and tobacco products and the acquisition of new, youthful consumers. In pursuance of said financial motivation, the CIGARETTE DEFENDANT consciously disregarded the safety of the users of, and persons exposed to the smoke of, cigarettes and other tobacco products, and were in fact, consciously willing to permit cigarettes and tobacco products to cause injury to smokers and bystanders exposed to the smoke, including plaintiff.

114. The conduct of CIGARETTE DEFENDANT as described herein was and is willful, malicious, outrageous, and in conscious disregard and indifference to the safety and health of the public, including plaintiffs. For the sake of example, and by way of punishing the CIGARETTE DEFENDANT, plaintiffs seek punitive damages according to proof.

WHEREFORE, plaintiff prays for judgment as hereinafter set forth.

SIXTH -- BREACH OF EXPRESS WARRANTY

(CIGARETTE DEFENDANT)

115. Plaintiff repeats and realleges each and every Paragraph set forth above in their entirety as if fully stated herein.

116. At all times relevant herein, CIGARETTE DEFENDANT pursued a more than 40-year campaign of advertising and communications, directed at government and the public, including plaintiff, designed to communicate to the consumer, including plaintiff, that smoking their brands of cigarettes was relaxing, healthy, satisfying, romantic, sexy, and in all ways desirable. Hundreds or even thousands of advertisements and communications were published by CIGARETTE DEFENDANT in the various media, so many that it would be neither economically feasible nor practicable for plaintiff to identify each and every one of them herein.

117. At all times relevant herein, co-conspirator wholesale and retail entities enabled and encouraged CIGARETTE DEFENDANT to pursue a more than 40-year campaign of advertising and communications, directed at government and the public, including plaintiff, designed to communicate to the consumer, including plaintiff, that smoking their brands of cigarettes was relaxing, healthy, satisfying, romantic, sexy, and in all ways desirable, by allowing prominent placement of the advertisements and communications by CIGARETTE DEFENDANT in and around its retail facilities where consumers, including plaintiff, saw, read, and relied on the representations made therein. Hundreds or even thousands of advertisements and communications were published by CIGARETTE DEFENDANT in the various media including in and around co-conspirator retail facilities, so many that it would be neither economically feasible nor practicable for plaintiff to identify each and every one of them herein.

118. From the time plaintiff was a minor, she read, heard, and saw the aforementioned advertisements and communications. Beginning as a minor, when she purchased for her consumption her first of the hundreds of packages of cigarettes she purchased and smoked, including but not limited to the brands known as MARLBORO and BENSON & HEDGES the aforementioned advertisements and communications were the basis of the bargain, and plaintiff relied upon the published advertisements and communications to her detriment.

119. As a proximate cause of the breach of express warranty on the cigarettes, including but not limited to the brands listed above, by co-conspirator wholesale and retail entities and CIGARETTE DEFENDANT, plaintiff has suffered, and will suffer until she likely dies therefrom, development of terminal, inoperable lung cancer.

120. The acts and conduct of CIGARETTE DEFENDANT, as set forth herein were motivated by the financial interests of CIGARETTE DEFENDANT in the continuing, uninterrupted distribution and marketing of cigarettes and tobacco products and the acquisition of new, youthful consumers. In pursuance of said financial motivation, the CIGARETTE DEFENDANT consciously disregarded the safety of the users of, and persons exposed to the smoke of, cigarettes and other tobacco products, and were in fact, consciously willing to permit cigarettes and tobacco products to cause injury to smokers and bystanders exposed to the smoke, including plaintiff.

121. The conduct of CIGARETTE DEFENDANT as described herein was and is willful, malicious, outrageous, and in conscious disregard and indifference to the safety and health of the public, including plaintiffs. For the sake of example, and by way of punishing the CIGARETTE DEFENDANT, plaintiffs seek punitive damages according to proof.

WHEREFORE, plaintiff prays for all consequential damages from CIGARETTE DEFENDANT as hereinafter set forth.

SEVENTH CAUSE OF ACTION -- UNFAIR COMPETITION/UNLAWFUL BUSINESS PRACTICES

[BUSINESS & PROFESSIONS CODE SECTIONS 17200 et seq.]

(CIGARETTE DEFENDANT & DUPAR'S RESTAURANT)

122. Plaintiff realleges each of the foregoing paragraphs above as if fully set forth herein.

123. Plaintiff, at all times relevant herein, is a resident of the State of California and a member of the consuming public at whom CIGARETTE DEFENDANT and DUPAR'S RESTAURANT aimed their advertisements and communications.

124. At all times relevant herein, the CIGARETTE DEFENDANT engaged in an ongoing, sophisticated campaign of explicit and implied misrepresentation, concealment, and distortion, described above more fully in above, of the true state of the scientific research showing cigarette smoking causes cancer, the addictive nature of nicotine, and their manipulation of the nicotine levels to keep the smoking public addicted to cigarettes for the purpose of keeping addicted smokers hooked on their cigarettes, and inducing new, often youth, smokers to purchase and smoke their cigarettes.

125. At all times relevant herein, defendant DUPAR'S RESTAURANT participated in, encouraged, and thereby allowed to flourish, the ongoing, sophisticated campaign of explicit and implied misrepresentation, concealment, and distortion, described above more fully in above, of the true state of the scientific research showing cigarette smoking causes cancer, the addictive nature of nicotine, and their manipulation of the nicotine levels to keep the smoking public addicted to cigarettes for the purpose of keeping addicted smokers hooked on their cigarettes, and inducing new, often youth, smokers to purchase and smoke their cigarettes.

126. Defendant DUPAR'S RESTAURANT had a legal duty to refrain from selling, promoting, targeting, participating in the above ongoing campaign and conspiracy, and inducing the sale of cigarettes to minors pursuant to but not limited to the following, Penal Code section 308.

127. Defendant DUPAR'S RESTAURANT, at times material had the following legal duties:

a. a legal duty to refrain from selling cigarettes to minors pursuant to Penal Code section 308;

b. a duty to warn previous users, users, and foreseeable users of the cigarettes it sold of the dangers listed in preceding paragraphs;

c. a duty to disclose to consumers of cigarettes the results of their own, if any, and other scientific research known to them which indicated that use of cigarettes caused users a great risk of harm (as listed above); and

d. a legal duty pursuant to Penal Code section 272 to refrain from contributing to the delinquency of a minor.

128. At all times relevant herein, defendant DUPAR'S RESTAURANT assisted and enabled the CIGARETTE DEFENDANT to engage in the ongoing, sophisticated campaign of explicit and implied misrepresentation, concealment, and distortion, described above more fully above by placing, and allowing defendants to place and publish, in and around its various retail facilities, the misrepresentations, distortions, falsehoods and concealment targeting underage, minor smokers, and thereby impliedly warranted and represented to members of the general public, including the purchasers, users and bystanders of cigarettes, including the plaintiff herein, that cigarettes and other tobacco products were of merchantable quality, and safe for the use for which they were intended.

129. Although the content of the statements and communications changed regularly, they retained these consistent themes and misrepresentations, concealments, and distortions. Due to the sheer number and volume of the thousands of such advertisements and communications through the years, plaintiff is unable to recount specifically herein each and every one. Indeed, it is the defendants herein which have superior knowledge concerning the thousands of advertisements and communications. The statements and communications were misleading and deceptive, and induced the consuming smokers, including plaintiff, to rely to their detriment upon them. As a proximate cause of such misleading and deceptive statements and communications, plaintiff has developed, and will likely die therefrom, inoperable, terminal lung cancer.

130. As a result of the point of sale targeting of youth and minor smokers, at least 90% of adult smokers began purchasing the cigarettes to which they became addicted while under the age of 18. In reliance upon the representations and inducements of the point of sale targeting of minor smokers by the CIGARETTE DEFENDANT and each of them, as described above, plaintiff, and countless other minor smokers like her, plaintiff purchased cigarettes as a minor at defendant DUPAR'S RESTAURANT and became addicted to cigarettes, which she continued to smoke until developing lung cancer from which she now suffers and from which she in all likelihood will die in the near future.

131. The purchase by minors throughout the years relevant herein, including plaintiff, of cigarettes sold by the CIGARETTE DEFENDANT and DUPAR'S RESTAURANT and each of them, and the development of the addiction of these smokers, including plaintiff, resulted in the defendants', and each of them, profiteering unjustly and unfairly from the illegal sale of cigarettes to the minors, including plaintiff in an amount presently unknown to plaintiff, who requests leave to amend this Complaint to conform to proof at trial when the true amount of illegal profit made by these sales of cigarettes to minors becomes known.

132. As a result of the continuing course of conduct of the defendants, and each of them, as outlined above, the CIGARETTE DEFENDANT and DUPAR'S RESTAURANT, have been unjustly enriched from the years-long illegal sale of addictive cigarettes, first to minors and youths, including plaintiff, to addict them and ensure to the said defendants, and each of them, an ongoing flow of profits throughout the years, as the addicted smokers continued to purchase cigarettes. The exact amount of this unjust enrichment gained from the ongoing and continuing purchase of cigarettes by addicted smokers who began smoking as minors is as yet unknown to plaintiff, who requests leave to amend this Complaint to conform to proof at the time of trial.

WHEREFORE, plaintiff prays for injunctive and other relief from the CIGARETTE DEFENDANT and DUPAR'S RESTAURANT, according to proof, as hereinafter set forth.

EIGHTH CAUSE OF ACTION -- NEGLIGENT FALSE AND MISLEADING ADVERTISING

[BUSINESS AND PROFESSIONS CODE SECTIONS 17500-17572]

(CIGARETTE DEFENDANT)

133. Plaintiff realleges each of the foregoing paragraphs as if fully stated herein.

134. CIGARETTE DEFENDANT breached their duties of care as heretofore set out above by their ongoing campaign and conspiracy to deceive and mislead government and the public, including plaintiff, and to conceal and/or distort the true facts concerning the health hazards of smoking, the addictive nature of nicotine, and the CIGARETTE DEFENDANT' manipulation of the levels of nicotine in cigarettes to keep addicted smokers hooked on cigarettes via deceptive and false statements and communications directed at the consuming public in the State of California, including plaintiff.

135. Co-conspirator retail entities, including DUPAR'S RESTAURANT, at times material had the following legal duties:

a. a legal duty to refrain from selling cigarettes to minors pursuant to Penal Code section 308;

b. a duty to warn previous users, users, and foreseeable users of the cigarettes it sold of the dangers listed above;

d. a legal duty pursuant to Penal Code section 272 to refrain from contributing to the delinquency of a minor.

136. These co-conspirator retail entities, including DUPAR'S RESTAURANT, breached their duties of care above by its years-long course of conduct aiding, assisting, and enabling the CIGARETTE DEFENDANT' ongoing campaign and conspiracy to deceive and mislead government and the public, including plaintiff, and to conceal and/or distort the true facts concerning the health hazards of smoking, the addictive nature of nicotine, and the CIGARETTE DEFENDANT' manipulation of the levels of nicotine in cigarettes to keep addicted smokers hooked on cigarettes via deceptive and false statements and communications directed at the consuming public in the State of California, including plaintiff, in that said defendants sold cigarettes to minors, including plaintiff and allowed minors easy access to cigarettes.

137. The statements and communications the CIGARETTE DEFENDANT presented to the public including plaintiff, and which the co-conspirator retail entities, including DUPAR'S RESTAURANT, placed and allowed to be placed in and around their various retail facilities, were made with the intention of inducing the public, with youths and minors as the particular targets, to purchase the cigarettes, including but not limited to the brands listed herein.

138. Beginning at a time unknown exactly to plaintiff, but prior to her first cigarette as a minor and continuing thereafter due to her addiction, plaintiff saw, believed, and relied on the CIGARETTE DEFENDANT' representations, including those placed in and around the retail facilities of co-conspirator retail entities. In reliance on them, she purchased various cigarettes including, but not limited to the brands listed herein, for several years.

139. At the time CIGARETTE DEFENDANT negligently made these misrepresentations as herein alleged and co-conspirator retail entities assisted, aided in, and enabled these representations and sold plaintiff cigarettes, the defendants and each of them had no reasonable grounds for believing the representations to be true.

140. As a proximate result of CIGARETTE DEFENDANT's and co-conspirator retail entities' negligent misrepresentations, plaintiff continued to smoke despite numerous attempts to quit and thereby developed terminal, inoperable lung cancer, from which she will likely die in the near future.

WHEREFORE, plaintiff prays for relief as hereinafter set forth.

NINTH CAUSE OF ACTION --

INTENTIONAL FALSE AND MISLEADING ADVERTISING

[BUSINESS AND PROFESSIONS CODE SECTIONS 17500-17572]

(CIGARETTE DEFENDANT)

141. Plaintiff realleges each of the foregoing paragraphs as if fully stated herein.

142. At the time the CIGARETTE DEFENDANT made point of sale targeting using the representations herein alleged, they knew the representations were false.

143. Beginning at some time unknown to plaintiff, co-conspirator retail entities, including DUPAR'S RESTAURANTS, knew the representations herein alleged were false.

144. The CIGARETTE DEFENDANT herein, and each of them, made the representations herein with the intention of depriving the public who smoked, including plaintiff, of their health in order to maintain and/or increase their profits and induce new, often youth smokers, to buy their cigarettes.

145. As a proximate result of CIGARETTE DEFENDANT' intentional misrepresentations as heretofore described, plaintiff was initially induced, and then forced by her ongoing addiction to spend a total sum currently unknown to her on cigarettes manufactured by the CIGARETTE DEFENDANT and sold by, among others, co-conspirator retail entities. Plaintiff requests leave to amend this Complaint at trial when the exact amount becomes known.

146. As a further proximate result of CIGARETTE DEFENDANT' intentional misrepresentations, plaintiff developed terminal, inoperable lung cancer from which she will likely die in the near future.

WHEREFORE, plaintiff prays for relief as hereinafter set forth.

PRAYER

WHEREFORE, Plaintiff Betty Bullock requests judgment against Defendant Philip Morris, Incorporated as follows:

1. For medical and related expenses according to proof;

2. For loss of income, wages and earning potential according to proof;

3. For general damages according to proof;

4. For prejudgment interest according to proof;

5. For exemplary or punitive damages according to proof; and

As to Defendant Philip Morris, Incorporated and Defendant Dupar's Restaurant;

6. For redress and restitution for past and continuing acts of unfair competition and illegal conduct;

7. For a permanent injunction enjoining Defendant Philip Morris, Incorporated from selling any more cigarettes containing carcinogenic substances or other additives;

8. For a permanent injunction enjoining the CIGARETTE DEFENDANT, and each of them, and DUPAR'S RESTAURANT from selling any more cigarettes to minors and youths;

9. For disgorgement of all profits unjustly gained from the illegal sale of cigarettes to minors;

10. For disgorgement of all profits unjustly gained from the continuing and ongoing sale of cigarettes to those consumers, including plaintiff, whom the defendants addicted to cigarettes as minors, and who, including plaintiff, continued to purchase them because of their addiction;

11. For costs of suit herein;

12. For reasonable attorney's fees; and

13. For such other and further relief as this Court deems just and proper.

LAW OFFICES OF MICHAEL J. PIUZE

By:______________________________

Michael J. Piuze

LAW OFFICES OF MICHAEL J. PIUZE

Michael J. Piuze, SBN 51342

Geraldine Weiss, SBN 168455

Holly Hostrop, SBN 108403

11755 Wilshire Blvd., Suite 1170

Los Angeles, California 90025

Telephone: (310) 312-1102

Facsimile: (310) 473-0708

Attorneys for Plaintiff