Wilson v. Conair Corporation

Filing 154

MEMORANDUM AND ORDER RE: MOTIONS FOR CLASS CERTIFICATION; EXCLUSION OF EXPERT EVIDENCE; AND SANCTIONS signed by Senior Judge William B. Shubb on 6/3/2016: IT IS ORDERED that 124 Plaintiff's Motion for Class Certification be, and the same her eby is, DENIED; IT IS FURTHER ORDERED that 141 Plaintiff's Evidentiary Objections be, and the same hereby are, DISMISSED as moot; IT IS FURTHER ORDERED that 143 , 145 Defendant's Motions to Strike be, and the same hereby are, DISMISS ED as moot. IT IS FURTHER ORDERED that 128 Defendant's Motion to Exclude Plaintiff's Testimony Regarding the February 2014 Phone Calls and Texts or, at a Minimum, Provide an Adverse Inference Instruction be, and the same hereby is, DENIED without prejudice to its timely renewal at trial. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DELIA WILSON, on behalf of
herself and all others
similarly situated,

CIV. NO. 1:14-00894 WBS SAB
MEMORANDUM AND ORDER RE: MOTIONS
FOR CLASS CERTIFICATION;
EXCLUSION OF EXPERT EVIDENCE;
AND SANCTIONS

Plaintiffs,
v.
CONAIR CORPORATION,
Defendant.

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Plaintiff Delia Wilson brought this putative class

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action against Conair Corporation, a health and beauty supply

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company, asserting that it has allegedly failed to follow

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standard policies and procedures for protecting consumers from a

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defective line cord in its styling irons and failed to comply

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with reporting laws.

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motion for class certification.

Presently before the court is plaintiff’s
(Docket No. 124.)

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I.

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Factual and Procedural Background
On February 12, 2014, plaintiff suffered injuries to

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her eye, face, and chest when the power cord on her Conair

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curling iron began to crackle and emit sparks.

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(“FAC”) at 4 (Docket No. 121).)

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abrasion that continues to require treatment.

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received this styling iron from defendant in 2010 as a free

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replacement for her prior styling iron, on which the on/off

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button had stopped functioning.

(First Am. Compl.

She was diagnosed with a corneal
(Id.)

Plaintiff

She used the styling iron three

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to four times a week for about four years.

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Decl. Ex. C, Wilson Dep. at 92:10-17, 93:9-12 (Docket No. 124-

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2).)

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styling irons are defective and that, despite having knowledge of

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this defect, defendant failed to warn consumers of the hazard or

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to report it to the Consumer Product Safety Commission (“CPSC”).

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(FAC at 1, 8.)

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(Id. at 3; Hurst

Plaintiff alleges that the power cords on defendant’s

Plaintiff asserts the following causes of action in her

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FAC on behalf of herself and the proposed class members: (1)

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violation of the Consumer Legal Remedies Act (“CLRA”), Cal. Civ.

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Code §§ 1750-1784; (2) unfair business practices to conceal the

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power cord defect from consumers and false and misleading

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advertising in violation of California’s Unfair Competition Law

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(“UCL”), Cal. Bus. & Prof. Code §§ 17200-17210, 17500-17509; and

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(3) breach of implied warranty, Cal. Com. Code § 2314.

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also asserts the following individual causes of action: (4)

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strict products liability due to design or manufacture defect;

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(5) strict products liability due to failure to warn; and (6)

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Plaintiff

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negligence.1

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Plaintiff seeks to represent a class that consists of:

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“All persons who purchased Conair Styling Irons in California.”

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(Id. at 10.)

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curling irons, straightening irons, and curling brushes

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manufactured by defendant and purchased by consumers in

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California on or after January 1, 2005 that contain a SPT-1 AWG

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#20 cord and a LM-81 strain relief.

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Responses to Pl.’s First Set of Interrogs. at 5 (Docket No. 124-

The parties agreed to define styling irons as all

(Hurst Decl. Ex. B, Def.’s

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4).)

The class excludes those who purchased styling irons for

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resale purposes.

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contains “thousands of members” but does not know the precise

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number.

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II.

(FAC at 10.)

Plaintiff believes the class

(Id.)2

Discussion

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For a class to be certified, a plaintiff must satisfy

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each prerequisite of Federal Rule of Civil Procedure 23(a) and

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must also establish an appropriate ground for maintaining class

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actions under Rule 23(b).

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Fed. R. Civ. P. 23.

“The party

Plaintiff voluntarily dismissed her seventh cause of
action for negligent infliction of emotional distress. (Docket
No. 148.) The parties stipulated that it would be dismissed with
prejudice and without an award of attorneys’ fees, costs, or
disbursements to either party. (Id.)
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The court did not consider the additional evidence
plaintiff submitted with her reply as it is “improper for a
moving party to introduce new facts or different legal arguments
in the reply brief than those presented in the moving papers”
without providing the opposing party an opportunity to respond.
Jones v. Balt. Life Ins. Co., Civ. No. S-06-1505 LKK KJM, 2007 WL
1713250, at *9 (E.D. Cal. June 12, 2007). Furthermore, the
additional evidence would not alter the court’s conclusions.
Accordingly, defendant’s motions to strike this evidence or to be
provided an opportunity to respond, (Docket Nos. 143, 145), are
denied as moot.
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seeking certification has the burden of affirmatively

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demonstrating that the class meets the requirements of [Rule

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23].”

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Cir. 2012) (citing Wal–Mart Stores, Inc. v. Dukes, 131 S. Ct.

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2541, 2551 (2011)).

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Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 588 (9th

A. Rule 23(a)

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Rule 23(a) restricts class actions to cases where:

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(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.

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Fed. R. Civ. P. 23(a).

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referred to as numerosity, commonality, typicality, and adequacy

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of representation.

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to ensure the prerequisites of 23(a) have been satisfied and this

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“will entail some overlap with the merits of the plaintiff’s

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underlying claim.”

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Because the court finds that plaintiff meets neither the

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typicality nor adequacy of representation requirements, it does

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not address the requirements of numerosity or commonality.

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These requirements are more commonly

The court must conduct a “rigorous analysis”

Dukes, 131 S. Ct. at 2551 (citation omitted).

1. Typicality
Typicality requires that the named plaintiff have

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claims “reasonably coextensive with those of absent class

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members,” but their claims do not have to be “substantially

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identical.”

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“is whether other members have the same or similar injury,

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whether the action is based on conduct which is not unique to the

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named plaintiffs, and whether other class members have been

Hanlon, 150 F.3d at 1020.

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The test for typicality

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injured by the same course of conduct.”

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Corp., 976 F.2d 497, 508 (9th Cir. 1992) (citation omitted); see

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also O’Connor v. Boeing N. Am., Inc., 180 F.R.D. 359, 373-74

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(C.D. Cal. 1997) (finding no typicality where the class

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representatives were focused on treatment of their existing

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cancer and their individual personal injury claims whereas the

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non-diseased class members were focused on recovering costs of

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monitoring latent diseases); Gartin v. S&M NuTec LLC, 245 F.R.D.

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429, 434-35 (C.D. Cal. 2007) (finding no typicality when the

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plaintiff was seeking relief for her dog’s existing injuries

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while other class members would seek costs for monitoring their

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dogs’ health to ensure no injuries occurred in the future).

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Hanon v. Dataproducts

Class certification is inappropriate “where a putative

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class representative is subject to unique defenses which threaten

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to become the focus of the litigation.”

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“To be typical, a class representative . . . must establish that

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she is not subject to a defense that is not ‘typical of the

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defenses which may be raised against other members of the

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proposed class.’”

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120 F. Supp. 3d 1050, 1098 (C.D. Cal. 2015) (citation omitted).

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Hanon, 976 F.2d at 508.

In re NJOY, Inc. Consumer Class Action Litig.,

While plaintiff and the proposed class members were all

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allegedly injured by defendant’s misrepresentations about the

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safety of the styling irons and failure to report the alleged

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defect to the CPSC, plaintiff is also asserting several

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individual personal injury claims that are not coextensive with

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those of the class.

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that the class action portion of this lawsuit would exclude any

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recovery for personal injuries or even restitution.

In fact, plaintiff’s counsel has conceded

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However,

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plaintiff individually contends that she “experienced

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unreasonably dangerous effects, and/or unnecessary physical

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injuries, damaged and/or destroyed property, and has incurred

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financial damage, loss of wages and/or earning capacity, medical

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expenses and injury, including mental anguish and emotional

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distress.”

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claims are therefore atypical as they are based at least in part

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on injuries different from those suffered by the class members,

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many of whom have not yet experienced line cord rupture or any

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(FAC at 20.)

As in O’Connor and Gartin, plaintiff’s

physical injuries, and she is seeking individual damages.
Plaintiff will also face unique defenses on the class-

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wide CLRA and UCL claims that defeat typicality.

For example,

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defendant contends that it will argue at trial that plaintiff,

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unlike other class members, does not have standing to bring CLRA

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and UCL claims because she did not purchase her styling iron but

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rather received it as a free replacement for another product.

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(Def.’s Opp’n at 31 (Docket No. 130).)

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safety defects, courts have repeatedly found that allegations

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that Plaintiffs suffered economic loss because they would not

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have purchased the product or would have paid less for it had the

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defect been disclosed are sufficient to establish standing to sue

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under CLRA and UCL.”

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Civ. No. 2:12-08499 JGB VBK, 2013 WL 10068136, at *7 (C.D. Cal.

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July 18, 2013); see also Backus v. Gen. Mills, 122 F. Supp. 3d

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909, 921 (N.D. Cal. 2015) (finding the plaintiff had standing

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because he lost money from purchasing the defendant’s products

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that were detrimental to his health); Cal. Civ. Code § 1770(a)

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(proscribing “unfair methods of competition and unfair or

“In cases involving

Corson v. Toyota Motor Sales, U.S.A., Inc.,

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deceptive acts or practices undertaken by any person in a

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transaction intended to result or which results in the sale or

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lease of goods or services to any consumer” (emphasis added)).

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Because plaintiff received her styling iron for free,

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defendant will argue, she cannot claim she was deceived into

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purchasing a styling iron based on defendant’s misrepresentations

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and false advertising or that she was injured by spending money

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on this dangerous product.

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original styling iron, defendant will argue that its on/off

While plaintiff purchased her

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switch failure is outside the scope of the proposed class

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definition and any claims related to this iron are also barred by

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the three year statute of limitations on CLRA claims.

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Opp’n at 31 & n.10.)

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plaintiff will be preoccupied with this defense unique to her.3

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(Def.’s

There is a significant danger that

Additionally, because plaintiff seeks to proceed under

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Rule 23(b)(2), injunctive relief lies at the heart of her class

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action.

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styling iron, she is not typical of class members who continue to

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use their styling irons and would therefore have standing to seek

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injunctive relief.

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injunctive relief, a plaintiff must demonstrate that she “has

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suffered or is threatened with a ‘concrete and particularized’

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legal harm, coupled with ‘a sufficient likelihood that [s]he will

Yet, because plaintiff is no longer using a Conair

To establish standing for prospective

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The court acknowledges that plaintiff’s general
argument that the statute of limitations was tolled for class
members falling outside the CLRA statutory period is not unique
to her and does not defeat typicality. (See Pl.’s Reply at 7.)
Any tolling argument that might be made with respect to her
original styling iron with the malfunctioning on/off switch,
however, would be unique to plaintiff.
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again be wronged in a similar way.”

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Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007).

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establish a likelihood of future harm because she no longer uses

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a Conair styling iron and has expressed no intent to purchase one

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in the future.

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588 (“[T]he ‘likelihood of future injury’ requirement under

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Article III may be satisfied where a consumer ‘allege[s] that

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[s]he intends to purchase the products at issue in the future.’”

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(citation omitted) (alteration original)); Dukes, 131 S. Ct. at

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2560 (finding half of the class members were no longer employed

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by Wal-Mart and therefore lacked standing to seek injunctive or

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declaratory relief against Wal-Mart’s employment practices);

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Balasanyan v. Nordstrom, Inc., 294 F.R.D. 550, 562 (S.D. Cal.

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2013) (finding a subset of plaintiffs had no standing to pursue

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injunctive relief and their claims were therefore not typical of

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the proposed class).

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Bates v. United Parcel
Plaintiff cannot

See, e.g., In re Yahoo Mail Litig., 308 F.R.D. at

Both because of plaintiff’s personal injury claims and

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the unique standing defenses that could be raised against her,

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the court must find plaintiff fails to satisfy the typicality

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requirement of Rule 23(a).

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2. Adequacy

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To resolve the question of adequacy, the court must

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make two inquiries: “(1) do the named plaintiffs and their

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counsel have any conflicts of interest with other class members

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and (2) will the named plaintiffs and their counsel prosecute the

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action vigorously on behalf of the class?”

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1020.

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factors, including “the qualifications of counsel for the

Hanlon, 150 F.3d at

These questions involve consideration of a number of

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representatives, an absence of antagonism, a sharing of interests

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between representatives and absentees, and the unlikelihood that

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the suit is collusive.”

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390 (9th Cir. 1992).

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Brown v. Ticor Title Ins., 982 F.2d 386,

The court does not address the qualifications of

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counsel.

However, as discussed above, plaintiff is not only

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seeking injunctive relief on behalf of the class but also

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individual personal injury damages.

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that plaintiff will therefore have different priorities and

There is a substantial risk

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litigation incentives than the class members.

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example, be tempted to accept an inadequate settlement offer on

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the class claims in exchange for a larger settlement on her

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personal injury claims or, alternatively, be motivated to proceed

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to trial when it may be in the best interest of the class to

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settle.

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630-31 (3rd Cir. 1996) (finding the intra-class conflict between

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class representatives presently injured by asbestos and possible

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future plaintiffs who were exposed but not yet injured precluded

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the class from meeting the adequacy requirement).

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therefore finds there is a potential conflict of interest between

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plaintiff and the class members due to plaintiff’s individual

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personal injury claims.

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She could, for

See, e.g., Georgine v. Amchem Prods., Inc., 83 F.3d 610,

The court

Further, the “second adequacy inquiry is directed to

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the vigor with which the named representatives and their counsel

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will pursue the common claims.”

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credibility and honesty of a class representative are relevant

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“because an untrustworthy plaintiff could reduce the likelihood

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of prevailing on the class claims.”

Hanlon, 150 F.3d at 1021.

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Harris v. Vector Mktg.

The

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Corp., 753 F. Supp. 2d 996, 1015 (N.D. Cal. 2010) (citation

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omitted).

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credibility is questioned on issues directly relevant to the

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litigation or there are confirmed examples of dishonesty, such as

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a criminal conviction for fraud.’”

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“There is ‘inadequacy only where the representative’s

Id. (citation omitted).

In this case, defendant contends that plaintiff

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spoliated the cellphone with which she allegedly reported her

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claim to defendant’s customer service department and failed to

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preserve any evidence related to the phone, such as bills or text

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messages.

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phone by accident, defendant argues, this demonstrates her lack

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of appreciation for her responsibilities as class representative.

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(Id.)

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claims that when she went to look for the old phone she

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discovered the box was empty.

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140).)

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the phone is disputed, it would be premature to find plaintiff is

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not credible on this ground.

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credibility regarding preservation of this evidence does have the

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potential of “jeopardiz[ing] the interests of absent class

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members.”

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(Def.’s Opp’n at 35.)

Even if plaintiff destroyed the

Plaintiff, however, denies having destroyed the phone and

(Pl.’s Reply at 15 (Docket No.

Given that the question of whether plaintiff spoliated

Nevertheless, plaintiff’s

Harris, 753 F. Supp. 2d at 1015.
Due primarily to the potential conflict of interest

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between plaintiff and the class members because of plaintiff’s

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individual personal injury claims, the court must conclude that

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plaintiff is an inadequate representative of the class under Rule

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23(a).

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III. Plaintiff’s Evidentiary Objections

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Plaintiff objects to and requests that the court
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disregard in their entirety the declarations of defendant’s

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experts Kurt Brietenkamp, Mark Sanders, and Richard L. Stern

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pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

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U.S. 579 (1993) and Federal Rule of Evidence 702.

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141, 141-1, 141-2.)

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declarations in its analysis and therefore need not rule on

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plaintiff’s evidentiary objections.

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IV.

(Docket Nos.

The court did not rely on the contested

Defendant’s Motion for Sanctions

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Defendant moves for sanctions against plaintiff for

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alleged spoliation of evidence pursuant to the court’s inherent

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authority.

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spoliated the Verizon flip phone on which she allegedly called

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and texted customer service, friends, and family regarding the

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line cord rupture on her styling iron in February 2014 and failed

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to preserve any evidence related to the phone, such as bills or

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text messages.

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128-1).)

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preventing plaintiff from presenting testimony regarding the

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February 2014 phone calls and texts or, at a minimum, that the

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court provide an adverse inference instruction to the jury.

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(Docket No. 128.)

Defendant contends plaintiff

(Def.’s Mot. for Sanctions at 3, 6 (Docket No.

Defendant asks that the court issue sanctions

When asked about the flip phone during her July 16,

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2015 deposition, plaintiff stated that she had replaced her flip

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phone with an Apple iPhone but that she still had the flip phone

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at home.

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116:1-3 (Docket No. 128-6).)

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not destroy it or do anything with it, and give it to your

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counsel.”

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(Def.’s Mot for Sanctions Ex. C, Wilson Dep. 115:5-24,
Defense counsel advised: “Please do

(Id. at 116:4-5.)
In response to a subsequent request for production of
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all text messages sent on the phone relating to the styling iron

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failure, plaintiff’s counsel replied: “Following her deposition

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Ms. Wilson conducted a reasonable and diligent search for her

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formerly used cell phone and discovered it is no longer in her

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possession, custody, or control.”

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Objs. to Req. for Produc. of Docs. Set Six at 4 (Docket No. 128-

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15).)

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empty.

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have donated the phone or left it at the Verizon store when she

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went in for help transferring service from the flip phone to her

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iPhone in June 2014.

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147-11).)

(Id. Ex. L, Pl.’s Resps. &

Plaintiff found the box for the flip phone but it was
(Pl.’s Reply at 15.)

Plaintiff now thinks that she might

(Pl.’s Opp’n, Wilson Decl. ¶ 9 (Docket No.

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It is premature to decide whether to preclude

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plaintiff’s testimony regarding the February 2014 phone calls and

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texts at this early stage of the proceedings.

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more appropriately be made at the time of trial, when the court

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can weigh the probative value and prejudicial effect of the

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evidence and consider alternative remedies.

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defendant’s motion to exclude plaintiff’s testimony or, at a

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minimum, provide an adverse inference instruction, will be denied

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without prejudice to its timely renewal, as appropriate, at

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trial.

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That decision will

Accordingly,

IT IS THEREFORE ORDERED that plaintiff’s motion for

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class certification (Docket No. 124) be, and the same hereby is,

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DENIED;

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IT IS FURTHER ORDERED that plaintiff’s evidentiary

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objections (Docket No. 141) be, and the same hereby are,

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DISMISSED as moot;
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IT IS FURTHER ORDERED that defendant’s motions to

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strike (Docket Nos. 143, 145) be, and the same hereby are,

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DISMISSED as moot.

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IT IS FURTHER ORDERED that defendant’s motion to

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exclude plaintiff’s testimony regarding the February 2014 phone

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calls and texts or, at a minimum, provide an adverse inference

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instruction (Docket No. 128) be, and the same hereby is, DENIED

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without prejudice to its timely renewal at trial.

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Dated:

June 3, 2016

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