Catherine Altamura et al v. Loreal USA Inc et al
Filing
60
MINUTES OF Motion Hearing held before Judge Christina A. Snyder: Defendants' Motion for Reconsideration 43 is GRANTED as to both California class representative Catherine Altamura and New York class representative Lisa Pearly's inability to represent their respective classes. Plaintiffs shall have 90 days from the date of this order to designate a new class representative for both the California class and the New York class. The case is hereby STAYED for 90 days unless plaintiffs 9; counsel notifies the Court and defense counsel that the stay should be lifted based upon the addition of a new representative plaintiff. If plaintiffs' counsel has not submitted new plaintiffs for the California and New York classes at the conclusion of 90 days, the parties are directed to submit a joint status report. These cases shall be removed from the civil active list for the duration of the stay. (Made JS-6. Case Terminated.) Court Reporter: Anne Kielwasser. (gk)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-1067 CAS (JCx); Consolidated with
CV 11-5465 CAS (JCx)
Title
JILL GUIDO, ET AL. v. L’OREAL, USA, INC., ET AL.; Consolidated
with CATHERINE ALTAMURA, ET AL. v. L’OREAL, USA, INC., ET
AL.
Present: The Honorable
Date
JS-6
June 25, 2012
CHRISTINA A. SNYDER
CATHERINE JEANG
Deputy Clerk
Anne Kielwasser
Court Reporter / Recorder
N/A
Tape No.
Attorneys Present for Plaintiffs:
Attorneys Present for Defendants
David Parisi
Grace Tersigni (By Telephone)
Dennis Ellis
Katherine Murray
Proceedings:
I.
DEFENDANTS’ MOTION FOR RECONSIDERATION (filed
5/21/2012)
INTRODUCTION & BACKGROUND
The background and facts are known to the parties and set forth in the Court’s
order granting plaintiffs’ motion for class certification dated May 7, 2012. See Dkt. No.
38, Case No. CV 11-5465 CAS (JCx); Dkt. No. 78, Case No. CV 11-1067 CAS (JCx).
On May 21, 2012, defendants filed the instant motion for reconsideration on the
issue of typicality. Dkt. No. 43. Plaintiffs filed their opposition on June 4, 2012, and
defendants filed their reply on June 11, 2012. The Court held a hearing on defendants’
motion on June 25, 2012. After carefully considering the arguments set forth by both
parties, the Court finds and concludes as follows.
II.
LEGAL STANDARD
A.
Local Rule 7-18
Local Rule 7-18 sets forth the bases upon which the Court may reconsider the
decision on any motion:
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 1 of 9
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date
JS-6
Case No.
CV 11-1067 CAS (JCx); Consolidated with
CV 11-5465 CAS (JCx)
June 25, 2012
Title
JILL GUIDO, ET AL. v. L’OREAL, USA, INC., ET AL.; Consolidated
with CATHERINE ALTAMURA, ET AL. v. L’OREAL, USA, INC., ET
AL.
A motion for reconsideration of the decision on any motion may be made
only on the grounds of: (a) a material difference in fact or law from that
presented to the Court before such decision that in the exercise of reasonable
diligence could not have been known to the party moving for reconsideration
at the time of such decision, or (b) the emergence of new material facts or a
change of law occurring after the time of such decision, or (c) a manifest
showing of a failure to consider material facts presented to the Court before
such decision. No motion for reconsideration shall in any manner repeat any
oral or written argument made in support of or in opposition to the original
motion.
L.R. 7-18.
III.
DISCUSSION
Defendants seek reconsideration “solely on the issue of typicality.” Mot. at 3.
“The purpose of the typicality requirement is to assure that the interest of the named
representative aligns with the interests of the class.” Wolin v. Jaguar Land Rover North
Am., LLC, 617 F.3d 1168, 1175 (9th Cir. 2010). “The test of typicality ‘is whether other
members have the same or similar injury, 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 course of conduct.’” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 984 (9th
Cir. 2011) (quoting Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)).
Thus, typicality is satisfied if the plaintiffs’ claims are “reasonably co-extensive with
those of absent class members; they need not be substantially identical.” Hanlon v.
Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998).
Here, defendants argue that recently-produced documents by Altamura render her
claims atypical with regard to the California class, and further contend that Pearly’s
claims are not typical with regard to the New York class because she purchased a bottle
of Serum that contained a flammability warning. Id. at 11–25. Each class representative
is discussed in turn.
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CIVIL MINUTES - GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-1067 CAS (JCx); Consolidated with
CV 11-5465 CAS (JCx)
Title
JILL GUIDO, ET AL. v. L’OREAL, USA, INC., ET AL.; Consolidated
with CATHERINE ALTAMURA, ET AL. v. L’OREAL, USA, INC., ET
AL.
A.
Date
JS-6
June 25, 2012
California Class Representative Catherine Altamura
Altamura, originally from Australia, purchased approximately ten bottles of Serum
while overseas and then purchased two more bottles while in California on a work visa.
Altamura testified that she assumed the only difference between the Serum she purchased
in Australia and the Serum she purchased in California was the shape of the bottle. See
Murray Decl., Exh. D at 97:25–98:7. When asked if she retained any of the bottles of
Serum she had purchased in Australia, Altamura responded that she had discarded all of
them. Id. at 112:22–113:5.
On Friday, May 4, 2012—three days prior to the hearing on plaintiffs’ motion for
class certification and while defendants’ counsel was out of town—Altamura, through an
email from her counsel, produced photographs of a bottle of Serum purportedly
purchased by Altamura while in Australia. Mot. at 9. Defendants counsel asserts that
defendants first reviewed the photographs following the class certification hearing and
learned that the directions on the Australian bottle of Serum are “materially different”
than those on bottles of Serum sold in California. Id. at 10. Specifically, the directions
on bottles of Serum sold in California state: “DIRECTIONS: Dispense 1 pump of serum,
or as much as needed for your hair type, into the palms of your hands. Apply uniformly
to towel-dried or dry hair. Do not rinse. For sleekest look, style using brush and
blowdryer. For best results, use Garnier Fructis Sleek and Shine System.” Murray Decl.,
Exh. J. By contrast, the directions on the bottle of Serum purportedly purchased in
Australia states: “Massage 1–2 shots into towel dried hair and smooth all the way to the
tips. Do not rinse. For a super smooth effect, comb hair straight while applying gentle
heat. Use after Garnier Fructis Sleek & Shine shampoo and conditioner.” Id., Exh. H
(emphasis added).1
1
Plaintiffs assert that they produced this photograph to rebut defendants’ contention
that the label on the Australian bottle of Serum contains a flammability warning. Opp’n
at 1.
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Page 3 of 9
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date
JS-6
Case No.
CV 11-1067 CAS (JCx); Consolidated with
CV 11-5465 CAS (JCx)
June 25, 2012
Title
JILL GUIDO, ET AL. v. L’OREAL, USA, INC., ET AL.; Consolidated
with CATHERINE ALTAMURA, ET AL. v. L’OREAL, USA, INC., ET
AL.
In light of this new evidence, defendants argue that Altamura’s “product
experience is vastly different from those of the class members.” Mot. at 11. In
particular, defendants contend that Altamura’s theory that she “would not have purchased
the Serum had she known it was potentially dangerous to use with heated styling
appliances” is now undermined because the Australia bottle of Serum instructs consumers
to use only “gentle heat” with the product. Id. at 12 (quoting Dkt. No. 38 at 18, Case No.
CV 11-5465 CAS (JCx)). Defendants therefore argue that Altamura “could not have
possibly believed that the Serum was safe to use with high heat, because the Australian
bottle instructed consumers to use the product only with ‘gentle heat.’” Id. at 14.
Accordingly, defendants argue that her claims are atypical of the class’s claims. Id.
(citing Morgan v. Makerdowne Corp., 201 F.R.D. 341, 348 (D.N.J. 2001) and Gonzalez
v. P&G Co., 247 F.R.D. 616, 621 (S.D. Cal. 2007)).
Alternatively, defendants assert that the Court’s order defining the California class
“necessarily” excludes Altamura because she is not a “resident” of California. Mot. at
16–17 (relying on Cal. Gov’t Code § 244(a)). According to defendants, even if the Court
modified its order to remove reference to “California residents,” Altamura’s claims
would still be atypical because “her use of the Serum was based on her purchases and
uses of the product in Australia” meaning “she cannot avail herself of California’s
consumer protection statutes.” Id. at 18–19.
In opposition, plaintiffs assert that defendants’ counsel had “ample opportunity” to
review the photographs produced on May 4, 2012. Opp’n at 3. Thus, plaintiffs contend
that defendants’ motion “does not fall within” any grounds for reconsideration, because
this fact is not a “new” fact. Id. at 4. Further, plaintiffs argue that “[t]he direction to
apply ‘gentle heat’ is simply not a safety warning but rather an instruction as to how to
get the best results from the product.” Id. at 10. Plaintiffs maintain that defendants have
not provided “any support for its baseless assertion” that Altamura or a reasonable
consumer “should understand this direction to mean avoid using blowdryers, heated
styling appliances, [or] to stay away from open flames or sources of ignition[.]” Id.
Finally, plaintiffs argue that the Court “is not bound to apply [Cal. Gov’t Code
§ 244(a)’s] residency definition in fashioning a class definition” because nowhere in the
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CIVIL MINUTES - GENERAL
Page 4 of 9
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date
JS-6
Case No.
CV 11-1067 CAS (JCx); Consolidated with
CV 11-5465 CAS (JCx)
June 25, 2012
Title
JILL GUIDO, ET AL. v. L’OREAL, USA, INC., ET AL.; Consolidated
with CATHERINE ALTAMURA, ET AL. v. L’OREAL, USA, INC., ET
AL.
UCL, FAL, CLRA, or Song-Beverly Consumer Warranty Act does the term “resident”
appear. Id. at 6.
In reply, defendants assert that it is “unclear where Ms. Altamura’s bottle came
from, or when (and if) it was released,” because the information available to L’Oreal
USA “suggests that the only labels that appeared on Australian bottles of Serum
containing denatured alcohol included a picture of a flame and the word ‘flammable’
beneath the ingredient list.” Reply at 2. Defendants therefore seek discovery on this
question if the Court rejects their motion. Id. at 3 n.2.
The Court finds that, in light of this new material fact, Altamura’s claims are not
typical of the claims of other California class members. Altamura testified that she
purchased Serum in California because of her familiarity with the product based on her
experiences with it while in Australia. See Murray Decl., Exh. D at 84:15–19 (“Q. So
when you purchased [Serum] in California, you purchased it because you already were
familiar with the product— A. Yes, that’s right. Q. —from Australia?”). She further
testified that she believed that the only difference between Serum purchased in California
and Serum purchased in Australia was the shape of the bottle. See id. at 97:25–98:7. The
recently produced photograph, however, demonstrates that the Australian bottle of Serum
contains different language than that contained on bottles of Serum sold in California.
Specifically, the Australian bottle instructs users to “comb hair straight while applying
gentle heat,” while the California bottle instructs users to “style using brush and
blowdryer.” Compare Murray Decl, Exh. J with Exh. H (emphasis added).
Although the “gentle heat” language does not necessarily state that Serum cannot
be used with high heat, it nonetheless renders Altamura’s experience unique in that she
was exposed to more information than the rest of the class. See, e.g., Hanon v.
Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (concluding that typicality was
not satisfied because the named plaintiff’s “unique background and factual situation
require[d] him to prepare to meet defenses that are not typical of the defenses which may
be raised against other members of the proposed class”). In other words, whether or not
it is reasonable for an average consumer to rely on Serum’s allegedly misleading
directions and/or lack of a flammability warning is materially different if one consumer
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 5 of 9
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date
JS-6
Case No.
CV 11-1067 CAS (JCx); Consolidated with
CV 11-5465 CAS (JCx)
June 25, 2012
Title
JILL GUIDO, ET AL. v. L’OREAL, USA, INC., ET AL.; Consolidated
with CATHERINE ALTAMURA, ET AL. v. L’OREAL, USA, INC., ET
AL.
had instructions to apply only “gentle heat,” while another consumer had no such
instructions. See Dkt. No. 49-10, Altamura Decl., ¶ 5 (stating that she “would not have
purchased the Serum had [she] known or believed that sparks, flames from candles or
matches, or high heat could cause it to catch fire”). See also Gonzalez v. Proctor and
Gamble Co., 247 F.R.D. 616, 622 (S.D. Cal. 2007) (“There also is a danger that Plaintiff
will be preoccupied with the defense that Plaintiff—unlike virtually every other class
member—formed her belief that Pantene Pro-V would strengthen her hair when she was
in Vietnam.”) (internal quotation marks and alterations omitted). Because “[e]ven an
arguable defense peculiar to the named plaintiff or a small subset of the plaintiff class
may destroy the required typicality of the class,” the fact that Altamura was exposed to a
different label of Serum than other members of the California class renders her claims
atypical. Cholakyan v. Mercedes-Benz, USA, LLC, --- F. Supp. 2d ---, 2012 WL
1066755, at *16 (C.D. Cal. Mar. 28, 2012) (internal quotation marks and citation
omitted).
Moreover, Altamura previously testified that she had thrown out all the bottles of
Serum she purchased while in Australia, yet produced a photograph of one of those
bottles one business day prior to the hearing on plaintiff’s motion for class certification.
See Altamura Depo. at 112:22–113:5 (testifying that she threw away all the bottles of
Serum she had purchased in Australia). The discrepancies between Altamura’s
deposition testimony and the newly produced evidence threaten to undermine her
credibility, providing an alternative basis for the conclusion that her claims are atypical.
See, e.g., Drake v. Morgan Stanley & Co., 2010 U.S. Dist. LEXIS 47627, at *14 (C.D.
Cal. Apr. 30, 2010) (finding named plaintiffs’ claims atypical, in part, due to their “lack
of credibility”); CE Design LTD. v. King Architectural Metals, Inc., 637 F.3d 721, 726
(7th Cir. 2011) (“A named plaintiff who has serious credibility problems . . . may not be
an adequate class representative.”).
Because defendants have introduced a new, material fact demonstrating that
Altamura’s claims are not typical of the California class, reconsideration of the Court’s
prior order is warranted. See Local Rule 7-18(a). Defendants’ motion is therefore
GRANTED as to Altamura’s inability to represent the California class. Plaintiffs shall
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 6 of 9
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date
JS-6
Case No.
CV 11-1067 CAS (JCx); Consolidated with
CV 11-5465 CAS (JCx)
June 25, 2012
Title
JILL GUIDO, ET AL. v. L’OREAL, USA, INC., ET AL.; Consolidated
with CATHERINE ALTAMURA, ET AL. v. L’OREAL, USA, INC., ET
AL.
have sixty (60) days from the date of this order to locate a new class representative for
the California class.
B.
New York Class Representative Lisa Pearly
Defendants assert that Pearly is an inadequate representative and that her claims
are not typical of the New York class because she purchased Serum when it contained a
flammability warning and stopped using the product after reading the warning. Id. at 23.
Thus, defendants maintain that Pearly “cannot represent consumers who purchased the
Serum bottle with no warning, because those bottles stated a different message” than the
one Pearly purchased. Id. at 23–24 (relying on Hooper v. HM Mane Solutions, LLC, 819
N.Y.S.2d 848 (N.Y. Sup. Ct. 2006)). Moreover, defendants contend that Pearly was
“properly warned” in light of the fact that she read the warning, meaning “there is
nothing more L’Oreal could have done.” Id. at 24.
Plaintiffs, in opposition, contend that defendants “simply rehash arguments already
made during the briefing and hearing on class certification, and ultimately rejected by the
Court” with regard to the typicality of Pearly’s claims.2 Opp’n at 13–14.
The Court agrees with defendants. Pearly’s testimony demonstrates that she
purchased a pre-2007 bottle of Serum that contained a flammability warning. See, e.g.,
Pearly Depo. at 34:21–23 (“Q. Where do you form the belief that this product could have
inflamed your hair? A. By the warning on the label.”); at 144:1–10 (“Q. Okay. So you
started using [Serum] in March 2010, and then about halfway through your use of the
product you read the back of the bottle? A. Within that time. Q. And you believe that
2
Regardless of whether defendants reiterate certain arguments in their motion, it is
within the Court’s discretion to decertify a class at any time “before final judgment.”
Fed. R. Civ. P. 23(c)(1)(C); Gonzales v. Arrow Fin. Servs LLC, 489 F. Supp. 2d 1140,
1153 (S.D. Cal. 2007) (“This Court may, at its discretion, decertify a class if the
requirements of Federal Rule of Civil Procedure 23 are not satisfied.”); O’Connor v.
Boeing N. Am., Inc., 197 F.R.D. 404, 409–10 (C.D. Cal. 2000) (same).
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Page 7 of 9
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date
JS-6
Case No.
CV 11-1067 CAS (JCx); Consolidated with
CV 11-5465 CAS (JCx)
June 25, 2012
Title
JILL GUIDO, ET AL. v. L’OREAL, USA, INC., ET AL.; Consolidated
with CATHERINE ALTAMURA, ET AL. v. L’OREAL, USA, INC., ET
AL.
that Caution language was misleading? A. How could you not? Yes. Q. Yes. Okay.
And at that point you stopped using the product? A. Yes.”); at 194:23–195:4 (“Q. [W]hat
else do you know about or what facts do you have to form your belief that this serum is
not safe to use with a blow dryer? A. Because there’s a warning on it. Q. Okay. The
warning that was on the bottle you purchased? A. Right.”). Thus, defendants have
established two facts that render Pearly’s claims atypical: first, that Pearly purchased a
bottle of Serum that was different from the bottles purchased by the majority of class
members she seeks to represent, and second, that Pearly was actually warned of Serum’s
flammability by her bottle’s labeling. Because the New York class is comprised of
consumers who purchased Serum from February 2008 onward—in other words, at a time
when the bottle’s labeling did not contain a flammability warning—the unique
circumstances surrounding Pearly’s purchase and usage of Serum make her an inadequate
class representative with atypical claims.3 See Wiener v. Dannon Co., 255 F.R.D. 658,
666 (C.D. Cal. 2009) (“Because Wiener has purchased only Activia and has never
purchased DanActive, the claims of the unnamed plaintiffs who purchased DanActive are
not ‘fairly encompassed by [Wiener’s] claims’” and therefore common evidence would
not be sufficient to prove deception) (quoting Gen. Telephone Co. of Southwest v.
Falcon, 457 U.S. 147, 156 (1982)); Gonzalez v. Proctor and Gamble Co., 247 F.R.D. 616,
621 (S.D. Cal. 2007) (“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
. . . [however,] [t]he only Pantene Pro-V brand product Plaintiff purchased was Pantene
Pro-V 2 in 1 shampoo plus conditioner for normal hair. [citation] This is not one of the
28 products identified in Plaintiff’s evidence.”).
3
The evidence is unclear whether Pearly purchased a pre-2007 bottle of Serum in
2010, or whether she purchased a bottle of Serum prior to 2007 but did not use it until
2010. If the latter is true, then Pearly cannot adequately represent a class of New York
residents who purchased Serum “from February 2008 until the present.” Even if the
former is true, however, Pearly cannot adequately represent the class because she
purchased the pre-2007 bottle, which is not the same bottle that the majority of class
members purchased.
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 8 of 9
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date
JS-6
Case No.
CV 11-1067 CAS (JCx); Consolidated with
CV 11-5465 CAS (JCx)
June 25, 2012
Title
JILL GUIDO, ET AL. v. L’OREAL, USA, INC., ET AL.; Consolidated
with CATHERINE ALTAMURA, ET AL. v. L’OREAL, USA, INC., ET
AL.
Accordingly, as with the plaintiffs in Wiener and Gonzalez, Pearly’s claims are
atypical and reconsideration of the Court’s prior order is appropriate. Local Rule 718(c).4
IV.
CONCLUSION
In accordance with the foregoing, defendants’ motion for reconsideration is
GRANTED as to both California class representative Catherine Altamura and New York
class representative Lisa Pearly’s inability to represent their respective classes. Plaintiffs
shall have ninety (90) days from the date of this order to designate a new class
representative for both the California class and the New York class.
The case is hereby STAYED for ninety (90) days unless plaintiffs’ counsel notifies
the Court and defense counsel that the stay should be lifted based upon the addition of a
new representative plaintiff. If plaintiffs’ counsel has not submitted new plaintiffs for the
California and New York classes at the conclusion of 90 days, the parties are directed to
submit a joint status report. These cases shall be removed from the civil active list for the
duration of the stay.
IT IS SO ORDERED.
00
Initials of Preparer
:
04
CMJ
4
On June 21, 2012, plaintiffs filed objections to the declaration of Gary King and
accompanying exhibits filed by defendants in support of their motion for reconsideration.
Because the Court does not rely on any of King’s exhibits or declarations, plaintiffs’
objections are OVERRULED as moot.
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