ORDER DENYING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION
[Motion filed May 3, 2013]
Thе Court has received and considered all papers filed in support of and in opposition to Plaintiffs Motion for Class Certification, as well as the arguments advanced by counsel at the July 1, 2013 hearing. For the reasons discussed below, the Court DENIES Plaintiffs Motion for Class Certification.
I. BACKGROUND
A. Procedural Background
Plaintiff Michael Turcios filed his Complaint as a class action in the California Superior Court for the County of Los Ange-les on September 6, 2012. Defendant Carma Laboratories, Inc. (“Carma Labs”) removed the action to this Court on October 3, 2012. (See Not. of Removal, Ex. B, Doc. No. 1.) On December 20, 2012, Plaintiff filed his First Amended Complaint (“FAC”), alleging claims for: (1) violation of the False Advertising Laws (“FAL”), Bus. & Prof.Code § 17500 et seq.; (2) violation of California’s Unfair Competition Laws (“UCL”), Bus. & Prof.Code § 17200 et seq.; and (3) violation of California’s Consumer Legal Remedies Act (“CLRA”), Civil Code § 1750 et seq. (FAC, Doc. No. 32.)
On April 8, 2013, Defendant filed a Motion for Sanctions under Federal Rule of Civil Procedure 11. (Doc. No. 41.) Plaintiff opposed the Motion for Sanctions on April 19, 2013 (Doc. No. 46), and Defendant replied on April 26, 2013 (Doc. No. 47). This Court denied Defendant’s Motion for Sanctions on May 2, 2013. (Doc. No. 52.)
On May 3, 2013, Plaintiff filed a Motion to Certify Class (“Motion,” Doc. No. 56), attaching the Declaration of Christopher P. Ridout (“Ridout Decl.,” Doc. No. 57). In his Motion, Plaintiff invokes Federal Rule of Civil Proce
All persons residing in California who purchased Defendant’s product Carmex in a 0.25 oz plastic jar at a location in California at any time during the Class Period.
(Mot. at 10.)
Defendant opposed the Motion on June 3, 2013 (Doc. No. 60), attaching the Declaration of Rachel R. Davidson (“Davidson Deck,” Doc. No. 60-1) and the Declaration of Paul Woelbing (‘Woelbing Decl.,” Doc. No. 60-3). Plaintiff rеplied on June 17, 2013 (Doc. No. 66), attaching the Declaration of Bradley C. Buhrow (“Buhrow Decl.,” Doc. No. 66-1).
On July 8, 2013, the Parties filed supplemental briefing on the Motion, per the Court’s July 1, 2013 order. (Doc. Nos. 69, 71.)
B. Plaintiffs Allegations
Plaintiff alleges that prior to September 2010, Carmex packaged and distributed .25 oz plastic jars of Carmex lip balm in packaging that contains a false bottom, deceptive covering, and/or nonfunctional slack fill. (FAC ¶¶ 2, 16.) The jar had a thick bottom, and the total plastic comprised more than seventy percent of the jar (“Original Carmex Jar”). (Id. ¶¶ 16, 18.) After Seрtember 2010, Defendants eliminated the thick bottom of the jar by creating a concave bottom, but packaged the product using a cardboard backing or opaque sticker, which prevented the consumer from viewing the hollow space at the point of sale (“Green Carmex Jar”). (Id. ¶¶ 18-20, 40.) The standard packaging concealed that the bottom of the Green Car-mex Jar is hollow, comprising 36% of the overall volume of the jar. (Id. ¶ 22.) Additionally, both Carmex jars contain forty percent less product than the Original Carmex Tube, which apрears smaller because the total container volume is less, but sells for the same price. (Id. ¶ 25.)
Plaintiff purchased this product, before and after September 2010, believing that the entire Carmex jar was filled. (Id. ¶¶ 3-4, 26.) Plaintiff alleges that he would not have paid the price he paid for it had he known that the entire Carmex jar was not filled. (Id. at ¶ 5.)
II. LEGAL STANDARD
Federal Rule of Civil Procedure 23 governs class actions. Fed.R.Civ.P. 23. A party seeking class certification must demonstrate the following prerequisites: “(1) numerosity of plaintiffs; (2) common questions of law or fact predominate; (3) the named plaintiffs claims and defenses are typical; and (4) the named plaintiff can adequately protect the interests of the class.” Hanon v. Dataproducts Corp.,
In addition to these prerequisites, a plaintiff must satisfy one of the three categories set out in Rule 23(b) in order to maintain a class action. Where, as here, a plaintiff moves for class certification under Rule 23(b)(3), a class must satisfy two conditions: (1) “the questions of law or fact common tо class members predominate over any questions affecting only individual members” and (2) “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3). The party seeking class certification bears the burden of demonstrating that it has met each of the four requirements of Rule 23(a) and at least one of the Rule 23(b) requirements. Zinser v. Accufix Research Inst.,
“The decision to grant or deny a motion for class certification is within the trial
III. DISCUSSION
A. Standing
Standing is a threshold issue that should be resolved beforе class certification. Lierboe v. State Farm Mut. Auto. Ins. Co.,
Defendant argues that Plaintiff lacks standing because he cannot show he relied on any misrepresentation or causation when making his Carmex jar purchases since he testified that: he never looked at the price or volume, he knew the actual volume of the product before the statutory period, and he knew that the jar had an indentation, but continued purchasing Carmex in the packaging at issue because he enjoyed the product. (Opp. at 18-19.) Plaintiff argues that 1) his UCL claim does not require proof of reliance and 2) he meets the standing requirement for his CLRA claim because he testified that he relied on Defendant’s misrepresentation when he purchased his Carmex. (PI. Supp. Br. at 1.)
CLRA Standing
California’s CLRA prohibits “unfair methods of competition and unfair or deceptive acts or practices.” Cal. Civ.Code § 1770(a). A consumer who suffers damage as a result of another’s use of a practice declared to be unlawful by CLRA can bring an action for relief. Cal Civ.Code § 1780. The statute requires that “‘plaintiffs in a CLRA action show not only that a defendant’s conduct was deceptive but that the deception caused them harm.’ ” In re Vioxx Class Cases,
In his supplemental brief, Plaintiff acknowledges that his CLRA claim requires proof of reliance. (PI. Supp. Br. at 1.) To support that he relied on Defendant’s alleged misleading conduct in making his Carmex purchases, Plaintiff points to his testimony that he believed the Carmex jars were full until 2012, when he discovered that the jar had an indent in the bottom. (Reply at 12.) This does not demonstrate that Plaintiff relied on the external volume of the jar when he purchased the lip balm, particularly taken in context with the rest of his testimony. Plaintiff testified that he had no expectation about how much product he was getting when he first purchased the lip balm in 2006, hе knew he was getting .25 ounces before he purchased the product, he was satisfied with the product and did not have any concerns or complaints after he finished his first and second .25 ounce jars, he continued to purchase the Carmex .25 ounce jars without reading the information on or inspecting the jar, he had no expectation of how much product he was getting, he did not put any thought into what price was reasonable, and he would still use Carmex today if he needed it. (Ridout Decl., Ex. D at 38:2-8; 44:4-7; 44:22-45:4; 50:15-21; 56:8-25; 58:9-15; 59:13-17; 65:20-22; 68:8-23; 69:11-14; 71:7-22; 90:2-15.)
UCL Standing
Plaintiff seeks to certify class claims arising from thе UCL’s unlawful prong, predicated on a violation of the CLRA and Fair Packaging and Labeling Act (“FPLA”). (Mot. at 7.) In 2004, Proposition 64 amended the UCL to limit standing to
If the predicate statute is based on misrepresentation, the plaintiff must show reliance in order to have UCL standing. Durell v. Sharp Healthcare,
Citing to Galvan v. KDI Distribuation Inc., No. 8-999,
The Court is not aware of any authority that supports the proposition that a violation of the FPLA creates automatic UCL standing for an individual plaintiff. A plaintiff asserting a UCL claim based on the FPLA must still show that the alleged violation caused or resulted in the loss of money оr property. Medrazo,
Plaintiff has not presented any evidence that his alleged economic injury occurred as a result of Defendant’s alleged violation of the FPLA. Plaintiff testified that he started purchasing Carmex, without comparing it to other products, because he heard it was a good product. Additionally, he testified that he did not inspect the Carmex jar prior to his subsequent purchases and does not provide any reason other than his chapped lips and the quality of the product for those subsequent purchases. (Ridout Decl., Ex. D at 39:5-40:19, 42:1-3, 57:20-58:1, 63:8-12; 65:20-22.)
“In a class action, the plaintiff class bears the burden of showing that Article III standing exists.” Ellis v. Costco Wholesale Corp.,
“In addition to the explicit requirements of Rule 23, an implied prerequisite to class certification is that the class must be sufficiently definite; the party seeking certification must demonstrate that an identifiable and ascertainable class exists.” Xavier v. Philip Morris USA Inc.,
Defendant argues that Plaintiffs proposed class is not ascertainable because it is not sufficiently definite and there is no feasible method of proving membership the Court cannot identify the California residents who purchased the product, and the frequency with which they purchased the product. (Opp. at 11-13.) Additionally, Defendant argues that the class is unascertainable because it is overbroad, including Carmex purchasers who were not deceived by the alleged misrepresentation or suffered no damages. (Id. at 14.)
Plaintiff contends that the class is sufficiently ascertainable because “all that this required at this stage to meet the aseertaina-bility requirement is that the class be defined in objective terms.” (Reply at 3-4.)
The Court agrees with Defendant that the proposed class is not sufficiently ascertainable because it is overbroad. Defendant has presented evidence of its full refund policy. (See Woelbing Decl., Ex. F, Ex. G.) At a minimum, the proposed class is overbroad because it would include consumers who already received refunds and, therefore, have not suffered any damages. See Stearns v. Select Comfort Retail Corp.,
“A lack of ascertainability alone will general not scuttle class certification.” Red v. Kraft Foods,
C. Federal Rule of Civil Procedure 23(a)
1. Numerosity
In determining whether under Rule 23(a)(1) joinder of all members is “impracticable,” courts have held that the plaintiff need not show that it would be “impossible” to join every class member. Haley v. Medtronic, Inc.,
Courts, additionally, have held that “[w]here the exact size of the class is unknown but general knowledge and common sense indicate that it is large, the numerosity requirement is satisfied.” Orantes-Hernandez v. Smith,
Plaintiff argues that given the large Carmex sales numbers, “it is reasonable to assume that a sufficient amount of unique individuals purchased the Carmex jar in California to satisfy the numerosity requirement.” (Mot. at 11-12.) Defendant does not contest numerosity. (Opp. at 11 fn. 5.)
Thus, the Court finds that the numerosity requirement is satisfied here.
2. Commonality
Courts have construed Rule 23(a)(2)’s commonality requirement permis
Plaintiff contends that the commonality requirement is satisfied because there are common issues, such as whether the Carmex jars violated the FPLA and UCL, and Defendant’s defenses would be common to all class members. (Mot. at 12.) Plaintiff asserts that for claims based on the UCL’s unlawful prong, a violation of the underlying law is a per se violation and a plaintiff does not neеd to prove actual reliance. (Id. at 7-8.) Additionally, Plaintiff asserts that the test for reliance for a CLRA claim is an objective standard and as long as a plaintiff can show that material misrepresentations were made, an inference of reliance arises for the entire class. (Reply at 5-6.)
Defendant argues that Plaintiffs proposed class does not meet the commonality requirement because both Plaintiffs CLRA and UCL claims require proof of reliance, and Plaintiff misconstrues the slack fill statute. (Opp. at 8-11.) Therefore, there is no common answer because: 1) there is no common misrepresentation because the class includes those purchasers who understood the actual volume of the Carmex jar; 2) whether the Carmex jar’s construction was material to each customer’s purchasing decision is an individual inquiry; and 3) Plaintiff cannot show that all class members suffered the same injury because he cannot show that all class members relied on the alleged misrepresentation. (Id. at 14-18.)
CLRA Claim
Classwide causation for a CLRA claim may be established by materiality. In re Vioxx Class Cases,
Here, Defendant has put forth persuasive evidence that materiality and reliance is an individualized question, not appropriate for class certification. Defendant presents evidence that consumers’ behavior varies even when there is a common awareness of the alleged misrepresentation. Defendant’s evidence shows that some consumers were aware of the particular dimensions and design of the Carmex Green Jar, and continued to purchase the lip balm. (See Woelbing Decl., Ex. D, Ex. K.)
Thus, the Court concludes that the elements of reliance and materiality are not subject to common proof and individual issues predominate with respect to the CLRA claim.
UCL Claim
As discussed above, to prove a violation of the CLRA, a plaintiff must show reliance, which is an individualized inquiry in this ease. Thus the commonality requirement is not met for Plaintiffs UCL claim, to the extent it rests on a violation of the CLRA.
Relying on Hobby Industry Ass’n of Am., Inc. v. Younger,
First, Defendant counters that Carmex’s packaging falls into one of the statutory exceptions to the definition of nonfunctional slack fill enumerated in Section 12606(b). Specifically, Defendant argues that the Carmex jar is filled to less than capacity because of “[t]he requirements of the machines used for enclosing the contents of the package.” § 12606(b)(2). (Opp. at 10-11.) To support this argument, Defendant provides evidence that the machinery used to package the lip balm, which has been used for thirty years, requires a heavier bottom, and a change in weight or volume in product within the jars would require Defendant to reengineer the filling system and lose the iconic shape of the Carmex jar. (See Davidson Deck, Ex. B at 136:4-138:13; Ex. C at 25:24-27:11, 120:7-121:12, 125:25-130:13.) Because the design of the Carmex jars falls into a statutory exception, deception or fraud, and a showing of reliance, are required. Thus, as reliance is an individualized inquiry here, the commonality requirement is not met for Plaintiffs UCL claim to the extent it is predicated on § 12606(b).
Second, Defendant argues that Hobby Industry’s holding does not apply to the prohibition outlined in § 12606(a), which governs false bottoms. Indeed, the Hobby Industry court understood the subsections to have different requirements, noting that § 12606(b), which prohibits nonfunctional slack fill, does not have a reference to deception and fraud.
3. Typicality
In order for a court to find typicality, “a class representative must be part of the class” and “possess the same interest and suffer the same injury” as the members of the class. General Telephone Co. of Southwest v. Falcon,
Plaintiff asserts that his claims are typical of the putative class because he purchased each of the Carmex jars at issue on several occasions. (Mot. at 13.) Defendants argue that Plaintiffs claims are not typical because 1) he lacks standing and 2) he seeks the remedy of “more product” instead of the damages, injunction, and restitution sought by the class. (Opp. at 19-20.)
As discussed above, Plaintiff has not demonstrated that he has standing to bring his CLRA and UCL claims, as there is no evidence before Court showing that he relied on the overall volume of the Carmex jars when purchasing the lip balm. (See infra Section III.A.) “[T]ypieality may not be established unless the named representative has individual standing to raise the legal claims of the class.” Westways World Travel, Inc. v. AMR Corp.,
4. Adequacy of Representation
Traditionally, courts have engaged in a two-part analysis to determine if the plaintiffs have met the requirements of Rule 23(a)(4). First, the class representatives must not have interests antagonistic to the unnamed class members. Lerwill v. Inflight Motion Pictures, Inc.,
Defendants argue that Plaintiffs claims are not aligned with the putative class members’ interests because he: 1) does not have standing; 2) believes himself to have been aggrieved by conduct different than the putative class; 3) lacks sufficient understanding of the class allegations and his obligations as class representative; and 4) seeks a refund that is less than the full refund available to all putative class members. (Opp. at 20-21.)
As with the typicality requirement, the adequacy requirement fаils because Plaintiff has not demonstrated standing for the majority of the claims for which he seeks class certification. See In re Stec Inc. Securities Litigation, No. 09-1304,
Additionally, the fact that Plaintiff only asks for a 36% refund, less than is available to putative class members, makes him an inadequate class reрresentative. Cf. Western States Wholesale, Inc. v. Synthetic Industries, Inc.,
Thus, the adequacy of representation requirement has not been met here.
D. Federal Rule of Civil Procedure 23(b)(3)
A plaintiff seeking to certify a class under Rule 23(b)(3) must show that questions of law or fact common to the members of the class “predominate over any questions affecting only individual members and that a class action is suрerior to other available methods for the fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3).
1. Predominance
Rule 23(b)’s requirement that common issues of law or fact predominate over individual issues is similar to, but more stringent than, Rule 23(a)’s commonality requirement. In re Countrywide Financial Corp. Securities Litigation,
As discussed abovе, the circumstances here show that a class-wide inference of reliance and causation is not appropriate for the majority of Plaintiffs CLRA and UCL claims. (See infra Section III.C.2.) Thus, individual issues of reliance predominate for those claims and the proposed class does not satisfy Rule 23(b)(3)’s predominance requirement.
2. Superiority
The Court is unconvinced that a class action is superior in this case. First, Defendant already offers consumers a full refund of the amount paid for the product for any reason (see Woelbing Decl., Ex. F), which is greater than thе 36% refund sought by Plaintiff. The superiority requirement is
Second, in assessing superiority, Courts may consider “the likely difficulties in managing a class action.” Fed.R.Civ.P. 23(b)(3)(D). It must be “administratively feasible to determine whether a particular person is a class member.” See Chavez v. Blue Sky Natural Bev. Co.,
Thus, Plaintiff has not met his burden of showing that Rule 23(b)(3)’s requirements are met here.
IV. CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiffs Motion for Class Certification.
Notes
. Plaintiff does not attempt to certify a class based on his FAL claim.
. Unless otherwise noted, all references to “Rule” refer to the Federal Rules of Civil Procedure.
. The Court does not express an opinion as to whether this evidence would be sufficient to withstand a motion for summary judgment.