Kumar v. Salov North America Corp.

          ORDER GRANTING MOTION FOR CLASS CERTIFICATION DKT. NO. 85

          YVONNE GONZALEZ ROGERS, UNITED STATES DISTRICT COURT JUDGE

         Plaintiff 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, ^[1] and the arguments of the parties, and for the reasons set forth below, the Court Grants the Motion for Class Certification.

         I. Background

         Kumar 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.”^[2] 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 restitution.^[3]

         II. Applicable Standard

         A class 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).

         Federal 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).^[4] 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).

         Under Rule 23(a), the Court may certify a class only where:

(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). 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 stated:

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).

         A. Rule 23(a) Threshold Requirements

         1. Numerosity

         Rule 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.

         2. Adequacy

         To 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.

         First, 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.

         However, 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.^[5] 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 representative.

         Second, 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 ...