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Gonzalez v. Proctor and Gamble Co.

September 12, 2007

TUYET TRAN GONZALEZ, PLAINTIFF,
v.
PROCTOR AND GAMBLE COMPANY, (DOCS. # 51 & 70.) AN OHIO CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge

ORDER DENYING PLAINTIFF'S MOTION TO CERTIFY CLASS

The matters before the Court are Plaintiff's "Motion for Class Certification" (Doc. # 51) and Defendant's "Application for Leave to File Sur-Reply in Opposition to Plaintiff's Motion for Class Certification" ("Application for Leave to File Sur-Reply") (Doc. # 70).

I. Background

On September 20, 2006, Plaintiff Tuyet Tran Gonzalez filed a Second Amended Complaint ("SAC") against Defendant Proctor and Gamble Company alleging the following claims: violations of California's Unfair Competition Law ("UCL"), section 17200 et seq. of California's Business and Professions Code; violations of California's False Advertising Law ("FAL"), section 17500 et seq. of California's Business and Professions Code; negligent misrepresentation; intentional misrepresentation; breach of express warranty; breach of implied warranty of merchantability; breach of implied warranty of fitness for purpose; and violations of California's Consumer Legal Remedies Act ("CLRA"), section 1750 et seq. of California's Civil Code. (Doc. # 30.)

Plaintiff alleges that in or around 2002-2005, she purchased Pantene Pro-V hair products at a variety of locations in San Diego, California because she was exposed to representations by Defendant that they were effective products for strengthening hair. (SAC ¶ 2.) She allegedly relied on representations on Pantene Pro-V packaging and in Defendant's other marketing efforts. (Id.) Plaintiff alleges that representations made by Defendant on Pantene Pro-V labeling and on television commercials included "try it today and get 99% more strength in one week," and "makes it 10x stronger against breakage . . . guaranteed." (Id. ¶¶ 3-4.) After using the products as directed for some time, Plaintiff formed the opinion that the products had no strengthening effect. (Id. ¶ 2.)

Plaintiff alleges that many published statements regarding hair strengthening qualities of Pantene Pro-V do not single out a particular product in the Pantene Pro-V product line. (Id. ¶ 6.) Rather, Plaintiff alleges, Defendant's advertising and marketing campaign led Plaintiff to believe that all Pantene Pro-V products could strengthen hair. (Id. ¶¶ 6-7.) Plaintiff alleges that Defendant's claims regarding Pantene Pro-V were false and made to fraudulently manipulate Plaintiff and other consumers into choosing Defendant's hair products. (Id. ¶ 8.)

On March 12, 2007, Plaintiff filed the Motion for Class Certification pursuant to Federal Rule of Civil Procedure 23, moving for an order certifying a class of "all persons and entities who purchased in California Pantene Pro-V hair products that were the subject of hair-strengthening claims, which products were manufactured, distributed, or sold by Defendant between the dates of January 20, 2002 and the present." (Doc. # 51 at 1.)

On June 18, 2007, after receiving briefing and evidence from each party, the Court (Huff, Judge) conducted oral argument on the Motion for Class Certification.*fn1 On June 22, 2007, Defendant filed the Application for Leave to File Sur-Reply (Doc. # 70), which was opposed by Plaintiff (Doc. # 72).

II. Discussion

A. Legal Standards for Class Certification

According to Federal Rule of Civil Procedure 23(a), a district court may certify a class so that representative parties may sue on behalf of all members 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." Fed. R. Civ. P. 23(a). These requirements are commonly referred to as numerosity, commonality, typicality, and adequate representation. See, e.g., Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998).

In addition to demonstrating that the requirements of Rule 23(a) are met, a plaintiff must establish one or more of the requirements of Rule 23(b), which are as follows: there is a risk of prejudice from separate actions establishing incompatible standards of conduct; judgments in individual lawsuits would adversely affect the rights of other members of the class; the party opposing the class has acted (or refused to act) in a manner applicable to the class generally, thereby making injunctive or declaratory relief appropriate with respect to the class as a whole; or the questions of law or fact common to the class predominate over questions affecting the individual members and, on balance, a class action is superior to other methods available for adjudicating the controversy. See Fed. R. Civ. P. 23(b)(1)-(3).

"As the party seeking class certification, [plaintiff] bears the burden of demonstrating that she has met each of the four requirements of Rule 23(a) and at least one of the requirements of Rule 23(b)." Zinser v. Accufix Research Inst., 253 F.3d 1180, 1186 (9th Cir. 2001) (citing Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)). In analyzing whether a plaintiff has met her burden to show that the above requirements are satisfied, a court must "analyze[] the allegations of the complaint and the other material before [the court] (material sufficient to form reasonable judgment on each [Rule 23] requirement)." Blackie v. Barrack, 524 F.2d 891, 900-01 (9th Cir. 1975) (noting further that a court is to take the substantive allegations in the complaint as true); see also Hanon, 976 F.2d at 509 (finding that the court may consider evidence to ascertain whether Rule 23 has been met, even though the evidence relates to the merits); Sepulveda v. Wal-Mart Stores, Inc., 237 F.R.D. 229, 233 (C.D. Cal. 2006) ("[B]ecause 'the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action,' a court must often look behind the pleadings 'to evaluate carefully the legitimacy of the named plaintiff's plea that he is a proper class representative under Rule 23(a).'") (quoting Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 160 (1982) (citations and internal quotation marks omitted)). A court should not conduct a hearing on the merits of the plaintiffs' claims when determining class certification, see Valentino, 97 F.3d at 1232, although the issue of certification "generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action." Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978). In summary, "notwithstanding its obligation to take the allegations in the complaint as true, the Court is at liberty to consider evidence which goes to the requirements of Rule 23 even though the evidence may also relate to the underlying merits of the case." In re Unioil Secs. Litig., 107 F.R.D. 615, 618 (C.D. Cal. 1985).

A district court is granted "broad discretion" to determine whether the Rule 23 requirements have been met. Zinser, 253 F.3d at 1186; see also In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 461 (9th Cir. 2000) ("The district court's decision certifying the class is subject to a very limited review and will be reversed only upon a strong showing that the district court's decision was a clear abuse of discretion.") (quotations omitted).

B. Rule 23(a)

Rule 23(a)(3) provides that the "claims or defenses of the class representative must be typical of the claims or defenses of the class." Fed. R. Civ. P. 23(a)(3). "[A] class representative must be part of the class and possess the same interest and suffer the same injury as the class members." Gen. Tel. Co. of Sw., 457 U.S. at 156 (quotation omitted). "[R]epresentative claims are 'typical' if they are reasonably coextensive with those of absent class members, they need not be substantially identical." Dukes v. Wal-Mart, Inc., 474 F.3d 1214, 1232 (9th Cir. 2007) (quotation omitted). "The test of typicality is whether other members of the proposed class have the same or similar injuries, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same conduct." Id. (quotation omitted). "Although the commonality and typicality requirements for class actions tend to merge, each factor serves a discrete purpose. Commonality examines the relationship of facts and legal issues common to class members, while typicality focuses on the relationship of facts and issues between the class and its representatives." Id. at 1232 n.10 (quotation and citation omitted).

Plaintiff argues that the typicality requirement is satisfied because the named Plaintiff and the proposed class members all purchased Pantene Pro-V products that were the subject of Defendant's allegedly false hair strengthening claims. Plaintiff submits evidence that at least 28 of Defendant's products were specific ...


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