Judge: Joel R Wohlfeil, Case: 37-2023-00003926-CU-BT-CTL, Date: 2024-03-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 27, 2024

03/29/2024  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  Business Tort Demurrer / Motion to Strike 37-2023-00003926-CU-BT-CTL HERB VS WEHAH FARM INC [EFILE] CAUSAL DOCUMENT/DATE FILED: Demurrer, 02/05/2024

The general Demurrer (ROA # 91) of Defendant Wehah Farm, Inc. d / b / a Lundberg Family Farms ('Defendant' or 'Lundberg') to the Second Amended Complaint ('SAC') filed by Plaintiff John Herb ('Plaintiff'), is OVERRULED.

Defendant is ordered to file and serve its Answer within 20 days of this hearing.

Defendant's objections (ROA # 120) to the Declaration of Ryan T. Kuhn are OVERRULED.

The Court routinely decides the issue of class certification on Demurrer, sustaining demurrers without leave to amend where it is clear that there is no reasonable possibility that Plaintiffs could establish a community of interest among the potential class members and that individual issues predominate over common questions of law and fact. Silva v. Block (1996) 49 Cal. App. 4th 345, 349.

On the other hand, it can be premature for the Court to make determinations pertaining to class suitability on Demurrer. Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal. App. 4th 471, 487.

Instead, all that is normally required is that the complaint allege facts that tend to show: (1) an ascertainable class of Plaintiffs, and (2) questions of law and fact which are common to the class. Id. It is sufficient that there is a reasonable possibility Plaintiffs can establish a prima facie community of interest among the class members. Id. Where there is a reasonable possibility that Plaintiff in a class action can establish a community of interest among class members, the preferred course is to defer decision on the propriety of the class action until an evidentiary hearing has been held on the appropriateness of class litigation. Id. One who was not exposed to the alleged misrepresentations and therefore could not possibly have lost money or property as a result of the unfair competition is not entitled to restitution. Pfizer Inc. v. Superior Court (2010) 182 Cal. App. 4th 622, 631.

'Here, the class certified by the trial court, i.e., all purchasers of Listerine in California during a six-month period, is grossly overbroad because many class members, if not most, clearly are not entitled to restitutionary disgorgement.' Id. 'Both before and after [In re Tobacco II Cases (2009) 46 Cal. 4th 298], the Court has found class certification appropriate based on an inference of common reliance.' Tucker v. Pacific Bell Mobile Calendar No.: Event ID:  TENTATIVE RULINGS

3085052 CASE NUMBER: CASE TITLE:  HERB VS WEHAH FARM INC [EFILE]  37-2023-00003926-CU-BT-CTL Services (2012) 208 Cal. App. 4th 201, 226.

On the other hand, it has also been observed that Tobacco II Cases did not suggest that the Supreme Court intended the Court to dispatch with an examination of commonality when addressing a motion for class certification, and 'factual questions of reliance by class members on allegedly false representation remained a proper criterion for trial court consideration when examining commonality.' Id. (citing Cohen v. DIRECTV, Inc. (2009) 178 Cal. App. 4th 966, 981).

The SAC in this action alleges deceptive statements contained on Defendant's website and, to a lesser extent, on printed packaging. The class definition as well as factual allegations contained within paragraphs 1, 40 and 43 now allege both the named Plaintiff and the putative class were exposed to the alleged false representations, and subsequently purchased the products at issue.

Specifically, paragraph 43 alleges: 'Plaintiff and the Class relied on Defendants' labeling, marketing and website and would not have purchased the Lundberg Products or paid a premium for them if they had known that they did not have the characteristics, benefits, or qualities as represented vis-à-vis the claims.' The SAC now alleges sufficient ultimate facts demonstrating a reasonable possibility plaintiff can establish a prima facie community of interest among the class members. The SAC now alleges at least an inference of common reliance. The preferred course is to defer a decision on the propriety of the class action until an evidentiary hearing has been held on the appropriateness of class litigation.

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