The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER DENYING MOTION TO CERTIFY CLASS
On April 18, 2006, Plaintiff James Drimmer filed a class-action complaint alleging negligence, breach of warranty, and claims under various California consumer-protection statutes. Having survived a motion to dismiss, Drimmer filed an amended complaint and now moves to certify two classes under Rule 23(b)(2) and (3). Because Drimmer has not met his burden, the court will DENY the motion.
I. Background & Legal Standards
Drimmer's amended complaint describes two products he bought in November and December 2005: "2000 Flushes Automatic Bowl Cleaner" and "2000 Flushes Blue Plus Bleach." WD-40 designs, manufactures, and sells these small, boxed tablets, and as their names imply, they are supposed to clean and disinfect toilet bowls as they slowly dissolve. But they contain chlorine bleach (technically, dichlorohydantoin), and because they sit in the toilet tank rather than the bowl, the bleach allegedly corrodes the tank parts. After only a few months of using the 2000 Flushes products, Drimmer's toilet began to "'run' continuously," and his plumber informed him that the tablets were "horrible" for toilets. (Compl. ¶¶ 20--22.) WD-40 claims the products are "safe" for and "not harmful" to plumbing and septic tanks on its packaging.
Federal Rule of Civil Procedure 23(a) establishes four prerequisites for certifying a class:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
The putative class representative bears the burden of establishing each element. Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). "[P]otential class members must also demonstrate that they meet at least one of the alternative requirements under Rule 23(b)." Walters v. Reno, 145 F.3d 1032, 1045 (9th Cir. 1998).
Rule 23(b)(2) permits a class action if "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief." Rule 23(b)(3) requires that "questions of law or fact common to the members of the class predominate over questions affecting only individual members, and that a class action [be] superior to other available methods for fair and efficient adjudication of the controversy."
District courts have "broad power and discretion" over class certifications. Reiter v. Sonotone Corp., 442 U.S. 330, 345 (1979); Doninger v. Pac. N.W. Bell, Inc., 564 F.2d 1304, 1308 (9th Cir. 1977) ("The judgment of the trial court should be given the greatest respect and the broadest discretion, particularly if . . . he has canvassed the factual aspects of the litigation."); see also Armstrong v. Davis, 275 F.3d 849, 869 (9th Cir. 2001). In evaluating whether a plaintiff has met his burden, a court should accept the substantive allegations of the complaint as true. Blackie v. Barrack, 524 F.2d 891, 901 n. 17 (9th Cir. 1975). A court need not reach the merits of the action in considering a class-certification motion, Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 179 (1974), but may consider evidence even if that evidence also relates to the merits, Hanon 976 F.2d at 509.
Drimmer seeks to certify two classes: (i) a nationwide class of consumers who bought the 2000 Flushes products on or after April 18, 2002, and (ii) a California class who bought the 2000 Flushes products on or after April 18, 2002 (for a Song-Beverly warranty claim). Drimmer argues that because the WD-40 products were not "safe for plumbing," as WD-40 uniformly claimed, the case turns on "one overriding common predominating issue: Do [WD-40]'s tablets harm toilets even when used as directed?" (Pl.'s Mem. in Supp. of Mot. for Class Certification at 2.) WD-40 responds, in essence, that there is far more to this case than that. The court agrees, and will explain further.
A. Drimmer's Proposed Class does not Present Common Questions of Law or Fact
Drimmer argues that the common label and harmful active ingredient in the 2000 Flushes products unites the class. But Drimmer never addresses the wealth of case law suggesting that similar or identical representations in negligence and products-liability cases do not alone provide the common factual basis Rule 23(a)(2) requires. See, e.g., Ikonen v. Hartz Mountain Corp., 122 F.R.D. 258, 262 (S.D. Cal. 1988).
Undoubtedly, the putative class adjudication would present one common issue: whether the Flushes products create a risk of harm to toilet-tank parts. But negligence law requires more than an increased risk of harm-it requires that WD-40's design or testing constitute a substantial factor in an actual, concrete harm to each of the class members. Mere purchase of the Flushes product does not guarantee use, let alone harm. As WD-40 correctly points out, unique questions-relating to the frequency of product use, condition of the toilet and tank parts, and level of chlorine in the water, just to name a few-will inevitably arise and overshadow the ...