693 F. App'x 578
9th Cir.
2017

Mohammed RAHMAN, individually and on behalf of other members of the general public similarly situated, Plaintiff-Appellant, v. MOTT‘S LLP, Defendant-Appellee.

No. 15-15579

United States Court of Appeals, Ninth Circuit.

July 05, 2017

Argued and Submitted April 19, 2017 San Francisco, California

was one which called for a stern rebuke and repressive measures....” Berger, 295 U.S. at 85, 55 S.Ct. 629. Indeed, when “reviewing for cumulative error, the court must review all errors preserved for appeal.... Even if a particular error is cured by an instruction, the court should consider any traces which may remain.” United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993) (internal quotation marks and citations omitted). I cannot ignore the traces of prejudice left by the prosecutor‘s repeated misconduct in this case.

Moreover, “where the government‘s case is weak, a defendant is more likely to be prejudiced by the effect of cumulative errors.” United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996). Such is the case here.

This case turned on identification, yet the witnesses could only provide police with vague descriptions of the suspect before some of them identified Robinson in a one-man field lineup. On the other hand, one robbery victim consistently told police and testified that Robinson was not the robber. This helps explain why, in the first trial, Robinson was acquitted of two robbery charges (the “Placentia” and “Mejia” robberies), and why the jury hung in favor of acquittal as to the remaining two robberies (the “Wooden” and “Torres” robberies).

The evidence of Robinson‘s innocence is compelling in light of the prosecution‘s timeline. Mr. Wooden was robbed at 6:30 p.m. on December 27, 2008. Mr. Mejia was robbed at 8:20 p.m. that night, and Mr. Torres was robbed at 8:25 p.m. Officers responding to the ensuing 911 calls stopped Robinson not once, but twice before 8:33 p.m. Despite being stopped relatively far away from the site of the final two robberies, Robinson was not perspiring, he was not out of breath, and he carried no gun or robbery proceeds.

A prosecutor‘s “obligation ... in a criminal prosecution is not that [he] shall win a case, but that justice shall be done.” Berger, 295 U.S. at 88, 55 S.Ct. 629. When prosecutors forgo this duty, AEDPA‘s demand for deference “makes a mockery of the careful boundaries between Congress and the courts that our Constitution‘s Framers believed so essential to the prevention of tyranny.” Crater v. Galaza, 508 F.3d 1261, 1270 (9th Cir. 2007) (Reinhardt, J., dissenting).

I cannot say that the California Court of Appeal reasonably applied Berger when it discounted the cumulative prejudicial effect of the prosecutor‘s misconduct in this case.

Respectfully, I dissent.

Liana Carter, Esquire, Glenn A. Danas, Attorney, Robert Kenneth Friedl, Tarek Zohdy, Capstone Law APC, Los Angeles, CA, for Plaintiff-Appellant

Van Beckwith, Attorney, Baker Botts L.L.P., Dallas, TX, Kevin M. Sadler, Baker Botts L.L.P., Palo Alto, CA, Evan Young, Attorney, Baker & Botts, Austin, TX, for Defendant-Appellee

Andrew John Pincus, Mayer Brown LLP, Washington, DC, for Amicus Curiae Chamber of Commerce of the United States of America

Before: SCHROEDER and RAWLINSON, Circuit Judges, and STAFFORD, District Judge.*

MEMORANDUM**

Mohammed Rahman appeals the district court‘s order denying Rahman‘s motion for class certification in this putative class action against Mott‘s LLP. We granted Rahman‘s petition for permission to appeal the district court‘s interlocutory order on certification, and we affirm.

In this diversity action, Rahman alleges that use of the statement “No Sugar Added” on Mott‘s 100% Apple Juice does not comply with applicable Food and Drug Administration regulations and, by extension, California‘s Sherman Law and Unfair Competition Law,1 which wholly adopt the federal regulations. While asserting that he satisfied the requirements for both an injunction class under Rule 23(b)(2) and a damages class under Rule 23(b)(3), Rahman sought certification under Rule 23(c)(4) with respect to liability issues only.

Rule 23(c)(4) provides that “[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues.” Fed. R. Civ. P. 23(c)(4) (emphasis added). Certification of an issues class under Rule 23(c)(4) is “appropriate” only if it “materially advances the disposition of the litigation as a whole.” William B. Rubenstein, 2 Newberg on Class Actions 4:90 (5th ed. 2012) (quoting Manual for Complex Litigation, Fourth, § 21.24 (2004)); see also Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1229-30 (9th Cir. 1996) (vacating the district court‘s Rule 23(c)(4) certification order where, among other things, the district court did not address whether adjudication of the certified issues “would significantly advance the resolution of the underlying case“).

Rahman bears the burden of demonstrating that a class should be certified under Rule 23. Narouz v. Charter Commc‘ns, LLC, 591 F.3d 1261, 1266 (9th Cir. 2010). Unconvinced that Rahman met that burden through his motion for class certification, and recognizing that certification of an issues class must materially advance resolution of the entire case, the district court asked Rahman to provide supplemental briefing as to how damages would be resolved if the liability issues were certified and why certifying a liability-only class would materially advance the litigation.

The district court found little that was helpful in Rahman‘s supplemental briefing. As noted by the district court, Rahman “failed to articulate why a bifurcated proceeding would be more efficient or desirable” and was “vague as to whether he intends to later certify a damages class, allow class members to individually pursue damages, or ha[d] some other undisclosed plan for resolving this case.” Having found Rahman‘s briefing deficient, the district court denied Rahman‘s motion to certify a Rule 23(c)(4) class, explaining as follows:

[A] district court is not bound to certify a liability class merely because it is permissible to do so under Rule 23(b)(3). The language of Rule 23(c)(4) speaks of certifying as to particular issues “when appropriate,” meaning that “[c]ourts should use Rule 23(c)(4) only where resolution of the particular common issues would materially advance the disposition of the litigation as a whole.” Jacob v. Duane Reade, Inc., 293 F.R.D. 578, 589 (S.D.N.Y. 2013).

We review a district court‘s decision to certify a class for abuse of discretion. Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 956 (9th Cir. 2013). Here, after giving Rahman ample opportunity to establish that certification of a liability-only class would materially advance the litigation, the district court concluded that Rahman failed to show that certification of a liability-only class was “appropriate” under Rule 23(c)(4). We find that the district court did not abuse its discretion in denying Rahman‘s motion to certify a liability-only class.

AFFIRMED.

WILLIAM H. STAFFORD, JR.

UNITED STATES DISTRICT JUDGE

Notes

1
Cal. Health & Safety Code, §§ 109875-111915 (Sherman Law); Cal. Bus. & Prof. Code, §§ 17200-17210 (Unfair Competition Law).
*
The Honorable William H. Stafford, Jr., United States District Judge for the Northern District of Florida, sitting by designation.
**
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.