United States District Court, N.D. California
Rohini Kumar, individually and on behalf of the general public and those similarly situated, Plaintiff,
Salov North America Corp., Defendants.
ORDER GRANTING MOTION FOR CLASS CERTIFICATION DKT.
GONZALEZ ROGERS, UNITED STATES DISTRICT COURT JUDGE
Rohini Kumar (“Kumar”) brings this Motion for
Class Certification of a proposed class of purchasers of
olive oil based on alleged mislabeling as “Imported
from Italy.” (Dkt No. 85.) Defendant Salov North
America Corporation (“Salov”) opposes the motion.
Having carefully considered the papers submitted, the
pleadings in this action, the admissible evidence,
the arguments of the parties, and for the reasons set forth
below, the Court Grants the Motion for Class Certification.
seeks to certify a class defined as: “All purchasers in
California of liquid Filippo Berio brand olive oil of any
grade (including extra virgin, pure, or extra light), between
May 23, 2010 and August 31, 2015.” Kumar alleges
that the class was deceived by misleading labeling stating
that the products were “Imported from Italy”
because the oil is actually produced in Tunisia, Greece, and
Spain, then shipped to Italy, mixed with a small amount of
Italian olive oil, bottled, and sold to consumers. Kumar
alleges that this conduct violates California’s Unfair
Competition law, Cal. Bus & Prof. Code section 17200
(Sixth Cause of Action), Consumer Legal Remedies, Cal. Bus
& Prof. Code section 1750 (First Cause of Action), and
False Advertising, Cal. Bus & Prof. Code section 17500
(Second Cause of Action), and entitles her to damages and
action lawsuit is “an exception to the usual rule that
litigation is conducted by and on behalf of the individual
named parties only.” Califano v. Yamasaki, 442
U.S. 682, 700-01 (1979). To depart from this general rule,
“a class representative must be part of the class and
possess the same interest and suffer the same injury as the
class members.” East Tex. Motor Freight Sys., Inc.
v. Rodriguez, 431 U.S. 395, 403 (1977) (internal
quotations and citation omitted). The proponent of class
treatment, usually plaintiff, bears the burden of
demonstrating that class certification is appropriate.
See In re N. Dist. of Cal., Dalkon Shield IUD Prod. Liab.
Litig., 693 F.2d 847, 854 (9th Cir. 1982), abrogated
on other grounds in Valentino v. Carter-Wallace, Inc.,
97 F.3d 1227 (9th Cir. 1996).
Rule of Civil Procedure 23, which governs class
certification, has two distinct sets of requirements that
plaintiffs must meet before the Court may certify a class.
Plaintiffs must meet all of the requirements of Rule 23(a)
and must satisfy at least one of the prongs of Rule 23(b),
depending upon the nature of the class they seek to certify.
See also Shady Grove Orthopedic Assocs., P.A. v. Allstate
Ins. Co., 559 U.S. 393, 394 (2010) (setting forth
requirements of Rule 23). Here, Kumar seeks certification
under Rule 23(b)(3). Within the framework of Rule 23, the Court
ultimately has broad discretion over whether to certify a
class. Zinser v. Accufix Research Inst., Inc., 253
F.3d 1180, 1186 (9th Cir.) opinion amended on denial of
reh’g, 273 F.3d 1266 (9th Cir. 2001).
Rule 23(a), the Court may certify a class only where:
(1) the class is so numerous that joinder of all members is
(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). Courts refer to these four
requirements, which must be satisfied to maintain a class
action, as “numerosity, commonality, typicality[, ] and
adequacy of representation.” Mazza v. Am. Honda
Motor Co., 666 F.3d 581, 588 (9th Cir. 2012). Although
some inquiry into the substance of a case may be necessary to
determine whether these requirements are satisfied, the court
must not advance a decision on the merits to the class
certification stage. As the United States Supreme Court has
Although we have cautioned that a court’s
class-certification analysis must be “rigorous”
and may “entail some overlap with the merits of the
plaintiff’s underlying claim, ” Rule 23 grants
courts no license to engage in free-ranging merits inquiries
at the certification stage. Merits questions may be
considered to the extent - but only to the extent -that they
are relevant to determining whether the Rule 23 prerequisites
for class certification are satisfied.
Amgen Inc. v. Connecticut Ret. Plans & Trust
Funds, 133 S.Ct. 1184, 1194-95 (2013).
Rule 23(a) Threshold Requirements
23(a)(1) requires that the class be so numerous that joinder
of all class members is “impracticable.”
Fed.R.Civ.P. 23(a)(1). Salov does not dispute that the class
is sufficiently numerous and would number in the thousands.
determine adequacy of representation under Rule 23(a)(4), the
Court must consider: “(1) [whether] the representative
plaintiffs and their counsel have any conflicts of interest
with other class members, and (2) will the representative
plaintiffs and their counsel prosecute the action vigorously
on behalf of the class?” Staton v. Boeing Co.,
327 F.3d 938, 957 (9th Cir. 2003). Salov raises several
issues that it asserts establish Kumar is not an adequate
class representative and class counsel are not adequate.
Salov suggests that Kumar is not an adequate representative
because her deposition testimony shows she was not misled by
the “Imported from Italy” statement on the front
of the bottle. Her testimony indicated that she read the back
of the bottle to check the “best by” date.
Because that information is located adjacent the
bottle’s disclaimer that the olive oils come from
Italy, Spain, Greece and Tunisia, Salov contends that she
must have known this information.
Kumar has testified that, while she looks for the “Best
By” date on the bottle, she did not see information
about the origin of the olives or that the oil could be from
various countries other than Italy. (Supp. Simplicio Decl.,
Dkt. Nos. 108, 109, Exh. 32 at 194:3-195:19.) There are
differences in appearance, size, and placement of the
disclaimer language compared to the “Best By”
date. It is an open question whether those
differences lend to or detract from the credibility of
Kumar’s testimony, and not a question that the Court
must answer in order to find that she is an adequate
Salov argues that Kumar is not adequate because she is
friends with one of class counsel. The record indicates that
Kumar first discussed the subject olive oil labeling with her
friend Ms. Simplicio, one of the counsel in this matter, over
brunch, which later led to the filing of this action. Salov
suggests this undermines Kumar’s credibility and her
ability to put the interests of the class above the interests
of counsel. Any suggestion of a conflict here is undermined
by the fact that Simplicio is not a partner and is only one
of several attorneys, from two firms, litigating the case.
Cf. Zeisel v. Diamond Foods, Inc., No. C 10-01192
JSW, 2011 WL 2221113, at *9 (N.D. Cal. June 7, 2011) (fact
that class representative and one class attorney were friends
did not make him inadequate in the absence of evidence of an
actual conflict); Kesler v. Ikea U.S. Inc., No. SACV
07-568 JVS RNBX, 2008 WL 413268, at *6 (C.D. Cal. Feb. 4,
2008) (“Kesler sought legal advice from a friend ...