Opinion
This action is brought by four named plaintiffs on behalf of themselves and other residents of California who, during the period November 1979 through March 1980, had purchased eggs produced by the defendant Hayre’s Egg Producers and sold by defendant Safeway Stores, Inc. The named plaintiffs moved to have their proposed class certified. This appeal is from the trial court’s order denying their motion to certify the class. We affirm the trial court’s decision, and in doing so we hold: (1) that the trial court did not utilize improper criteria in determining the appropriateness of class certification; (2) that the action is without merit; (3) that the proffered economic damage class was not ascertainable; (4) that the device of “fluid recovery” cannot serve as a substitute for proof of the necessary element of damage where there is no probability of any individual class members coming forward and proving their particular damages, and where no public policy is served by utilization of a “fluid recovery” means of distribution.
Factual and Procedural Background
Hayre’s is a producer of eggs located in Lathrop, California. During the period November 1979 through March 1980, Hayre’s sold Safeway approximately 1.5 million dozen eggs which were then sold by Safeway under the Lucerne brand to California consumers.
In October 1979, Hayre’s removed old laying chickens from three of its ten units which supplied eggs to Safeway. Before restocking with new, young chickens, the three units were cleaned by an employee. The employee, without asking or informing anyone at Hayre’s, used an insect spray containing chlordane to rid the units of spiders, mites and other pests. Following the cleanup, the units were restocked and egg production within the three units resumed.
In March 1980, the Food and Drug Administration (FDA), in a routine inspection, discovered traces of chlordane in the eggs and in the chickens in these three units. The eggs produced in these units constituted approximately 20 percent of the eggs sold by Hayre’s to Safeway.
*66 Hayre’s system of production kept the eggs from different units separate only until the eggs reach the grading and packing area. Once the eggs are processed and are ready to be packaged, they are commingled and can no longer be identified by the unit in which they were produced.
In Safeway stores, eggs produced by Hayre’s were stocked with eggs produced by other egg suppliers. During the relevant time period, 20 percent to 30 percent of the eggs sold by Safeway under the Lucerne label were produced by Hayre’s. The Lucerne cartons containing Hayre’s eggs were stamped with an “M” which identified them as coming from that supplier.
Upon discovering the chlordane contamination, the FDA notified Hayre’s which in turn immediately notified its customers, including Safeway. 1 Since there was no way to identify which eggs came from the three Hayre’s units sprayed with chlordane, it was impossible for Safeway to ascertain which eggs produced by Hayre’s were contaminated. Safeway, therefore, ordered all Hayre’s eggs pulled from the shelves. Safeway cooperated with the media in warning the public not to use eggs from Lucerne cartons marked with an “M” and offered to refund the purchase price of the eggs to any customer who returned a Hayre’s carton with that marking. All Hayre’s eggs produced during the period November 1979 to March 1980 and remaining in Safeway’s stock were then disposed of in hazardous waste dumps.
In their first amended complaint, plaintiffs defined the class they wished to represent as all persons who purchased and/or consumed Lucerne eggs contaminated by chlordane. Discovery revealed Hayre’s had commingled its good eggs with the contaminated eggs and there was no way to tell which of the eggs were contaminated. At the motion to certify that class, appellants argued for a class definition that included those who purchased contaminated eggs and also those who purchased Hayre’s eggs during the relevant period which were commingled with the contaminated eggs. Because appellants argued for a different class definition than that set forth in the pleadings, the court denied the first motion to certify the class and allowed appellants leave to amend the complaint. Appellants filed a second amended complaint 2 amending the class definition and brought a second motion to certify the class. The denial of that second motion is the subject of this appeal.
*67 The class proposed for certification in the second motion consists of two subclasses. Subclass A is defined as all residents of California, who between November 19, 1979 and March 13, 1980, purchased from Safeway and/or consumed, or whose family consumed, Lucerne eggs which had been produced by Hayre’s and who thereby suffered economic harm. Subclass B is defined as all persons who ingested said contaminated eggs and who sustained personal injuries as a result.
The trial court denied certification of subclass A on the ground that the class was not ascertainable as an economic class that had suffered an economic loss. The court denied certification of subclass B on the ground that common questions of law and fact did not predominate on those claims arising out of personal injury. Appellants appeal the ruling as to subclass A only.
Appellants urge trial court error in two particulars: First, they contend there was a lack of substantial evidence supporting the court’s conclusion that the “economic damage class” was not ascertainable; second, they contend that by considering whether the proposed class would prevail on the merits, the court used improper criteria in determining whether class certification was appropriate. Before addressing these specific contentions we deem it worthwhile to briefly comment on established legal principles particularly relevant to a review of the class certification proceeding before us.
“The class action is a product of the court of equity—codified in section 382 of the Code of Civil Procedure.[
3
] It rests on considerations of necessity and convenience, adopted to prevent a failure of justice.”
(City of San Jose
v.
Superior Court
(1974)
It is without question that a consumer class action in many circumstances will result in substantial benefit to the parties and the court. “The class action has been held appropriate when numerous parties suffer injury of insufficient size to warrant individual action and when denial of class relief would result in unjust advantage to the wrongdoer [citations].” (Blue Chip Stamps v. Superior Court, supra, 18 Cal.3d at pp. 385-386.) Among the salutary by-products of the consumer class action are “. . . [the] therapeutic effect upon those sellers who indulge in fraudulent practices, aid to legitimate business enterprises by curtailing illegitimate competition, and avoidance to the judicial process of the burden of multiple litigation involving identical claims.” (Vasquez v. Superior Court, supra, 4 Cal.3d at p. 808.)
On the other hand it is equally without question that not all multiple consumer cases lend themselves to a class proceeding. Some limiting considerations were described by the Supreme Court in the
Blue Chip Stamps
case. “A factor in determining feasibility of the group approach is the probability each member will come forward ultimately, identify himself and prove his separate claim to a portion of the total recovery. [Citation.] [H] However, when potential recovery to the individual is small and when substantial time and expense would be consumed in distribution, the purported class member is unlikely to receive any appreciable benefit. The damage action being unmanageable and without substantial benefit to class members, it must then be dismissed. [Citations.] And, when the individual’s interests are no longer served by group action, the principal—if not the sole—beneficiary then becomes the class action attorney. To allow this is ‘to sacrifice the goal for the going,’ burdening if not abusing our crowded courts with actions lacking proper purpose. [Citations.]” [H] While termination of a defendant’s alleged wrongdoing is a factor to be considered [citation], it does not warrant group action for damage when the members will not recover damage, . . .” (
In an effort to assure that class action proceedings are not utilized as instruments which “sacrifice the goal for the going,” we are reminded that class actions are provided only as a means to enforce substantive law and that altering the substantive law to accommodate procedure is to confuse the means with the ends.
(City of San Jose
v.
Superior Court, supra,
*69
To sustain any class action the requirements of an ascertainable class and a well-defined community of interest in the factual and legal issues presented must be met.
(Daar
v.
Yellow Cab Co., supra,
With this factual and legal background we look to the case at hand. The proffered class would obviously be numerous, the individual economic claims of the defined class members would necessarily be small claims, 4 and it does appear that a well-defined community of interest as to factual and legal issues would exist among all members of the defined class.
However, there exist several distinctive features to this litigation. Principal among them, and completely without California precedent in class action cases which we have come upon, is the factual reality that no individual member of the defined economic class will ever be able to come forward and prove that their purchased eggs were contaminated in whole or in part. Due to the commingling of 20 percent contaminated eggs with 80 percent noncontaminated eggs, each carton may have contained one or more contaminated eggs, or none at all. 5
Also distinctive are undisputed facts demonstrating that immediately upon receiving notice of product contamination further distribution was voluntarily terminated, shelved eggs were destroyed, a recall was attempted and costly measures were undertaken by the egg producer to correct the problem so as to avoid recurrence.
Nor can we ignore the distinctive nature of the occurrence which gave rise to the problem in the first instance. We are not here involved with the conduct of a predatory seller, nor a situation where unwary consumers are being duped by some unscrupulous corporate undertaking, nor do we have *70 an illegal scheme to cheat or overcharge consumers or competitors. The wrongdoing here is an accidental occurrence.
The trial court, exercising the discretion to which it is entitled, determined the class to be noncertifiable because it was not ascertainable as an economic class that had suffered economic loss. Plaintiffs asked the trial court, and now ask us, to do what no other California court has done: to certify an economic class where not all products sold to the class were defective and where the class members themselves do not know, and never will know, whether they purchased a defective product. We decline to take that step.
We first treat plaintiffs’ claim that improper criteria were utilized in determining whether class certification was appropriate. They point to the trial court as “. . . repeatedly [concerning] itself with whether or not the plaintiffs could prove that the eggs had no [economic] value and/or that the class had been harmed.” They cite
Anthony
v.
General Motors Corp.
(1973)
Here, the concerns of the trial court as to plaintiffs’ ability to prove the eggs had no economic value, or that the purported class had been harmed, were legitimate concerns directed to the question of whether the action was without merit. If there existed a demonstrated inability to prove loss or harm, then clearly the action was without merit.
The situation confronting the trial court in
Anthony
v.
General Motors Corp., supra,
Next we look to plaintiffs ’ contention of lack of substantial evidence to support the lower court’s conclusion that the economic damage class was not ascertainable. Again, we disagree with their position.
We are cognizant of the principle that if the existence of an ascertainable class has been shown, there is no need to identify its individual members as a prerequisite to maintaining a class suit.
(Daar
v.
Yellow Cab Co., supra,
It is no answer for plaintiffs to contend in hindsight that the commingling resulted in the eggs being without market value. They offer the fact of Safeway’s postnotice destruction of its shelved Hayre’s eggs to prove the point. The only point proved however is that the shelved eggs no longer had a market value to Safeway because of their unsalability. It does not prove that a purchaser of uncontaminated eggs did not receive the full benefit of the transaction.
*72
California law has long required that a person suffer detriment in order to have a claim for recovery of damages. In
Whipley
v.
J. H. McKune
(1859)
The cases cited by plaintiffs to support their position for an ascertainable class are readily distinguishable from the case at bar. In
Daar
v.
Yellow Cab Co., supra,
Nowhere within this litany of cases do we find anything remotely comparable to the case under review. Each identifies a common harm or damage *73 necessarily resulting from conduct or transactions common to all. None confront the factual situation before us, where the transactions may or may not have resulted in harm.
Substantially similar to the present litigation is that which confronted a federal District Court in
Feinstein
v.
Firestone Tire and Rubber Co.
(S.D.N.Y. 1982)
The same result was reached in
McElhaney
v.
Eli Lilly & Co.
(D.S.D. 1982)
Earlier in this opinion we noted the Supreme Court decisions requiring the trial courts to “carefully weigh respective benefits and burdens” and “to allow maintenance of the class actions only where substantial benefits accrue both to litigants and the courts.” It seems to be a self-evident proposition that where no member of the class can prove a case, there can be no substantial benefit to the litigants. Plaintiffs, however, would have us certify an economic damage class by asserting that substantial benefits will inure to the class through the employment of a “fluid recovery” method
*74
of distribution. Justice Morris of the Fourth Appellate District observed that: “The topic [i.e., “fluid recovery”] regularly arises . . . where the class has many members with relatively small individual claims. In such circumstances, if the class recovers a favorable judgment, it is likely that only a fraction of the class members will have the desire, and documentation, to file an individual claim for part of the damages. Fluid class recovery is thus invariably suggested as a way to distribute the usually substantial amount of remaining damages.”
(Bruno
v.
Superior Court, supra,
Plaintiffs have cited us to no authority, nor have we discovered any, where fluid recovery has been permitted to serve as a substitute for the elementary duty of a plaintiff to prove damage, an essential part of the cause of action. As noted by the Supreme Court in the recent case
State of California
v.
Levi Strauss & Co.
(1986)
But plaintiffs go on to assert that the fluid case recovery is “consistent with the philosophy behind
Darr
[szc] and
Vasquez
that class actions serve the important function, when individual lawsuits are not feasible, of returning ill-gotten gains from the hands of those who have engaged in unlawful practices.” The Supreme Court in
Levi Strauss
also recognizes that general principle with the following statement: “Fluid recovery may be essential to ensure that the policies of disgorgement or deterrence are realized. [Citation.] Without fluid recovery, defendants may be permitted to retain ill-gotten gains simply because their conduct harmed large numbers of people in small amounts instead of small numbers of people in large amounts.”
(State of California
v.
Levi Strauss & Co., supra,
Though observing that an essential predicate of the above proposition is “harm” to people, we nevertheless elect to comment on whether the circumstances of this case justify the utilization of fluid recovery as “essential to ensure that the policies of disgorgement or deterrence are realized.” We think not. Clearly the imposition of a fluid method of distribution could have no useful effect on the policy of deterrence because it will forever remain beyond the capability of law to deter accidental occurrences. Nor are we satisfied that any public purpose is served in this case by requiring *75 “disgorgement” based on the simplistic premise that consumers may not have gotten exactly what they bargained for.
Where, as here, the occurrence is of an accidental nature, the defendants are shown to have responded immediately to protect the public, where steps were taken at considerable economic cost to prevent recurrence, and where all but a relatively small portion of the “ill-gotten gain” was in fact consumed in the production, sorting, packaging, shipping and marketing of the contaminated product, we do not believe fluid recovery is useful in fulfilling the purpose of the underlying action. Better that the fluid method of distribution be reserved for those cases where public policy will be served by curbing the excesses of the predatory and the unscrupulous or where substantial harm to the class is demonstrable.
We affirm the trial court’s order denying class certification.
Kline, P. J., and Smith, J., concurred.
Notes
While the level of chlordane found in the eggs was low (measured in parts per million), the Environmental Protection Agency had not established a tolerance level for eggs as had been established for other agricultural products. Chlordane has been permitted to be sprayed on such agricultural crops as carrots, apples, beans, boysenberries and cabbage. (40 C.F.R. § 180.122, rev. Jul. 1, 1985.)
Various theories of recovery are asserted in the second amended complaint and include causes of action for negligence, strict liability, breach of implied warranty, fraud, negligent misrepresentation, battery, civil conspiracy and violations of sections of the Health and Safety Code and Business and Professions Code.
Code of Civil Procedure section 382, provides inter alia: “. . . when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.”
Even if we were to accept plaintiffs’ gross damage figure of $1,338,148 and divide by the plaintiffs’ estimated 90,913 class members, individual recovery would approximate $15 per class member.
In our factual summary we recounted that Hayre’s eggs constituted only 20-30 percent of the eggs sold by Safeway under the Lucerne tradename; that Lucerne cartons containing Hayre’s eggs were identifiable by the letter “M.” Thus for a consumer to identify that Hayre’s eggs were purchased, would require his recalling the “M” marked Lucerne carton, a highly unlikely occurrence further complicating the desired goal of a class proceeding that there be some probability of individual recovery.
Where California courts have not addressed an issue, they look to federal cases as persuasive authority on class action questions.
Daar
v.
Yellow Cab Co., supra, 67
Cal.2d at p. 708;
Vasquez
v.
Superior Court, supra,