Youngsuk Kim v. Benihana, Inc. ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 26 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YOUNGSUK KIM, on behalf of himself and No. 22-55529
all others similarly situated,
D.C. No.
Plaintiff-Appellant, 5:19-cv-02196-JWH-KK
v.
MEMORANDUM*
BENIHANA, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
John W. Holcomb, District Judge, Presiding
Argued and Submitted May 11, 2023
Pasadena, California
Before: HURWITZ and R. NELSON, Circuit Judges, and KANE,** District Judge.
In this diversity action invoking California consumer protection statutes,
Youngsuk Kim appeals a district court order denying certification of a putative
master class of purchasers of “Food Products that Benihana’s menu labeled to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Yvette Kane, United States District Judge for the
Middle District of Pennsylvania, sitting by designation.
contain ‘crab’” and subclasses for each of ten challenged products. We have
jurisdiction over this certified interlocutory appeal under 28 U.S.C. § 1292(e). We
affirm in part, vacate in part, and remand for further proceedings.
1. The district court’s order was premised on its exclusion of a report by Dr.
Eric Forister submitted in support of Kim’s class certification motion to “quantify
damages” through “benefit-of-the-bargain” and “restitution” theories, and the
court’s subsequent conclusion that Kim had not presented a classwide method of
establishing damages in the absence of the Forister report.
a. We vacate the portion of the district court’s order that excluded the
“benefit-of-the-bargain” theory solely because Dr. Forister “relied on the summary
of the data” in a report by Dr. Thomas Maronick without accessing the “‘raw’ or
underlying survey data.” The district court expressly found the Maronick report was
admissible, characterizing its conclusions as “appropriately drawn from his survey
data.” In arriving at an opinion, an expert may rely on admitted evidence, see Fed.
R. Evid. 703 advisory committee’s note to 1972 proposed rules, as well as reliable
“data collected by others,” Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134,
1142 (9th Cir. 1997). Dr. Forister’s reliance on a report by another expert that the
district court found to be both reliable and admissible does not affect the Forister
report’s admissibility.
b. Benihana also contends that the Maronick report does not support Dr.
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Forister’s “benefit-of-the-bargain” opinion. See Ellis v. Costco Wholesale Corp.,
657 F.3d 970, 982 (9th Cir. 2011). But the district court made no such finding,
instead relying only on Dr. Forister’s failure to examine the data underlying Dr.
Maronick’s conclusions. We therefore remand for the district court to address any
other objections to the Forister report or the “benefit-of-the-bargain” model in the
first instance.
c. The district court did not abuse its discretion in excluding Dr. Forister’s
restitution model. Restitution “must be of a measurable amount to restore to the
plaintiff what has been acquired by violations of the statutes, and that measurable
amount must be supported by evidence.” Pulaski & Middleman, LLC v. Google,
Inc., 802 F.3d 979, 988 (9th Cir. 2015) (citation omitted). A restitution model must
show how to calculate “what a purchaser would have paid at the time of purchase
had the purchaser received all the information.” Id. at 989. The court correctly noted
that Dr. Forister’s restitution model did not “rely on specialized knowledge or
expertise,” present the “value of restitution [that] should be applied to the facts of
this case,” or account “for the value that consumers receive from” the challenged
products or “other factors that may drive consumer preferences.”1
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Because the district court was not asked to address the issue, we express no
opinion whether, as Kim contends, an alternative restitution model may be derived
from record evidence other than Dr. Forister’s report. See G & G Prods. LLC v.
Rusic, 902 F.3d 940, 950 (9th Cir. 2018).
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2. The district court held that “Kim does not have standing with respect to the
California Roll” subclass claims because “unlike the other Food Products, Benihana
did not list crab as an ingredient in the California Roll,” and “Kim never ordered the
California Roll.” It also held that because “the menu does not advertise that the
California Roll contains crab, the California Roll does not meet commonality
requirements.”
Although the Rule 23 issue might better be described as involving
“typicality,” see Fed. R. Civ. P. 23(a)(3), the district court did not abuse its discretion
in determining that Kim may not represent the putative California Roll subclass.
Whether the issue addressed is characterized as one of standing, see Ang v. Bimbo
Bakeries USA, Inc., No. 13-cv-01196-WHO, 2014 WL 1024182, at *4–8 (N.D. Cal.
Mar. 13, 2014) (explaining the “substantial similarity” theory), or typicality, see
Ellis, 657 F.3d at 984, the district court correctly concluded that Kim is not a proper
representative of the California Roll subclass. The claim concerning the California
Roll is distinct from the claims related to other products, which rely on the use of
the word “crab” in their descriptions on Benihana’s menus. As to the California
Roll, the claim is instead that purchasers were misled into paying an inflated price
because they assumed the product included actual crab, even though the menu did
not describe this item using the word “crab.” The most that Kim can claim is that
he shares that assumption, not that he bought a California Roll based on it or suffered
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any damage similar to those who did.
AFFIRMED IN PART AND VACATED IN PART; REMANDED.
The parties shall bear their own costs.
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