Case Name: ?? Garrett, et al. v. Bumble Bee Foods, LLC
Case No.: ?????? 2014-1-CV-264322
This is a putative class action.? Plaintiffs Patrick Garrett, Jeff Mains, and Linda Eustice (collectively, ?Plaintiffs?) bring this lawsuit against defendant Bumble Bee Foods, LLC (?Defendant?).? Plaintiffs allege Defendant illegally misbranded its products by using labeling that included unauthorized Omega 3 nutrient content claims containing the statement ?Excellent Source of Omega 3.?? (Complaint, ??22.)? Plaintiffs also allege Bumble Bee Albacore Tuna in Water is misbranded because the label contains a ?heart-check? mark endorsement from the American Heart Association but does not disclose that this was a paid endorsement.? (Complaint, ???41-44.)
The Complaint, filed on April 25, 2014, sets forth the following causes of action: [1] Business and Professions Code ??17200, et seq. (Unfair Business Acts and Practices); [2] Business and Professions Code ??17200, et seq. (Unfair Business Acts and Practices); [3] Business and Professions Code ??17200, et seq. (Fraudulent Business Acts and Practices); [4] Business and Professions Code ??17500, et seq. (Misleading and Deceptive Advertising); [5] Business and Professions Code ??17500, et seq. (Untrue Advertising); [6] Consumers Legal Remedies Act, Cal. Civ. Code ??1750, et seq.; [7] Breach of Implied Warranty of Merchantability; [8] Negligent Misrepresentation; [9] Negligence; [10] Unjust Enrichment; [11] Common Count of Money Had and Received; and [12] Declaratory Judgment.
Plaintiffs now move for class certification.
- Motion for Class Certification
- Legal Standard
As explained by the California Supreme Court,
The certification question is essentially a procedural one that does not ask whether an action is legally or factually meritorious. ?A trial court ruling on a certification motion determines whether the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.
(Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 326, internal quotation marks, ellipses, and citations omitted.)
California Code of Civil Procedure section 382 authorizes certification of a class ?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 . . . .? ?As interpreted by the California Supreme Court, Section 382 requires: (1) an ascertainable class; and (2) a well-defined community of interest among the class members. ?(Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 326.)
The ?community-of-interest? requirement encompasses three factors: (1) predominant questions of law or fact; (2) class representatives with claims or defenses typical of the class; and, (3) class representatives who can adequately represent the class. ?(Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 326.) ??Other relevant considerations include the probability that each class member will come forward ultimately to prove his or her separate claim to a portion of the total recovery and whether the class approach would actually serve to deter and redress alleged wrongdoing.? ?(Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.)? The plaintiff has the burden of establishing that class treatment will yield ?substantial benefits? to both ?the litigants and to the court.? ?(Blue Chip Stamps v. Superior Court (1976) 18 Cal.3d 381, 385.)
- Analysis
Defendant challenges three of the elements for class certification ? (1) predominant questions of law or fact; (2) typicality; and (3) ascertainability.? The Court finds there are serious issues with regard to the ascertainability requirement that prevent the granting of class certification at this time and necessitate the submission of supplemental briefing from the parties.
?The trial court must determine whether the class is ascertainable by examining (1) the class definition, (2) the size of the class and (3) the means of identifying class members.?? (Miller v. Woods (1983) 148 Cal.App.3d 862, 873.) ?Generally, ?[c]lass members are ?ascertainable? where they may be readily identified without unreasonable expense or time by reference to official records.? ?(Rose v. City of Hayward (1981) 126 Cal. App. 3d 926, 932.)
Defendant argues that courts have denied class certification in food labeling cases where the putative class members are unlikely to have records of their purchases.? Defendant cites to several cases in support of this proposition – In re POM Wonderful LLC (C.D. Cal. 2014) 2014 WL 1225184; Red v. Kraft Foods, Inc. (C.D. Cal. 2012) 2012 WL 8019257; and Jones v. ConAgra Foods, Inc. (N.D. Cal. 2014) 2014 WL 2702726.? As discussed in Jones:
Defendant next argues that there is no way to know who is really a member of the class. Opp?n to Hunt?s Mot. at 13?15. This is a subject upon which courts in this Circuit have diverged. See Sethavacnish v. ZonePerfect Nutrition Co., No. 12?2907, 2014 WL 580696, at *5 (N.D.Cal. 2014) (recognizing split).
Some courts have concluded that the ascertainability requirement cannot be met in the case of low-cost consumer purchases that customers would have no reliable way of remembering. See, e.g., id. at *6 (in which Judge Conti found it administratively unfeasible to determine who purchased ZonePerfect bars during the class period, or how many they purchased); In re POM Wonderful LLC, No. 10?2199, 2014 WL 1225184, at *6 (C.D.Cal. Mar. 25, 2014) (unascertainable because ?[f]ew, if any, consumers are likely to have retained receipts during the class period? and ?there is no way to reliably determine who purchased Defendant?s [juice] products or when they did so.?); Red v. Kraft Foods, Inc. No. 10?1028, 2012 WL 8019257, at *5 (C.D.Cal. Apr. 12, 2012) (finding unascertainable a proposed class of purchasers of various cracker and cookie products marketed as healthy despite including partially hydrogenated vegetable oil and other unhealthy ingredients); Hodes v. Van?s Int’l Foods, No. 09?1530, 2009 WL 2424214, at *4 (C.D.Cal. July 23, 2009) (court had concerns about ?how Plaintiffs will identify each class member and prove which brand of Van?s frozen waffles each member purchased, in what quantity, and for what purpose? given low probability class members saved receipts).
(Jones v. ConAgra Foods, Inc., supra, 2014 WL 2702726, at *9.)
Plaintiffs argue that these cases are federal and not binding on the Court.? Plaintiffs cite to Bartold v. Glendale Federal Bank (2000) 81 Cal.App.4th 816, 828, for the proposition that ?[a] class is ascertainable if it identifies a group of unnamed plaintiffs by describing a set of common characteristics sufficient to allow a member of that group to identify himself or herself as having a right to recover based on the description.?? While Plaintiffs are correct that the federal cases are not binding on this Court, the cases are persuasive authority.
Plaintiffs seek to certify the following class:
All persons in the state of California who, from April 12, 2008 until July 21, 2014, purchased Bumble Bee Foods, LLC?s Solid White Albacore Tuna in Water labeled or advertised as ?Excellent Source Omega 3? and/or bearing an American Heart Association seal without disclosing it as a paid endorsement.
In this case, it is not apparent how a very large group of class members will be able to self-identify as class members and ultimately prove their membership.? It is unlikely (and Plaintiff provides no evidence otherwise) that class members will have retained receipts for their canned tuna purchases over the course of approximately six years and it is also unlikely they will be able to accurately remember they purchased the specific items at issue in this lawsuit.? Under these circumstances, it is difficult to see how class members will be able to be accurately identified.? Therefore, the Court is inclined to deny the motion for class certification.
Nevertheless, the Court will permit Plaintiffs the opportunity to provide supplemental briefing on this issue, explaining to the Court how class members can be accurately identified.? A further hearing on this matter will be set for July 15, 2016.? Plaintiffs shall submit supplemental briefing of no more than five pages by June 17, 2016.? Defendant shall submit responsive briefing of no more than five pages by July 1, 2016.
- Motion to Seal
Plaintiffs move to seal three documents, submitted as Exhibits A, B, and C to the Declaration of Pierce Gore in Support of Motion to File Under Seal.? Exhibit A is a document setting forth internal deliberations of Defendant.? Exhibits B and C are redacted and unredacted versions of Plaintiffs? motion for class certification and accompanying memorandum of points and authorities.
A party moving to seal a record must file a memorandum and a declaration containing facts sufficient to justify the sealing. ?(Cal. Rules of Court, rule 2.551(b)(1).) ?A declaration supporting a motion to seal should be specific, not conclusory, as to the facts supporting the overriding interest.? If the court finds that a supporting declaration is conclusory or otherwise unpersuasive, it may conclude that the moving party has failed to demonstrate an overriding interest that overcomes the right of public access. ? (See In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 305.)
Plaintiffs provide no basis for sealing in the Gore Declaration.? In the memorandum in support of the motion to seal Plaintiffs simply state that Exhibit A was designated ?CONFIDENTIAL? by Defendant and that this document is discussed in Plaintiffs? memorandum of points and authorities.
To the extent Plaintiffs? papers provide any basis for sealing these exhibits, the papers are, at best, conclusory.? Plaintiffs have not made an adequate showing of facts sufficient to justify the sealing.? Accordingly, the hearing on the motion to seal is CONTINUED to July 15, 2016.? Plaintiffs are ordered to file a supplemental memorandum of points and authorities and a supplemental declaration providing specific facts supporting the overriding interest that would justify sealing these exhibits.? The papers shall be filed by June 17, 2016.