Wong v. Foster Farms CA1/2 ( 2022 )

Filed 4/25/22 Wong v. Foster Farms CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
SERENA WONG, et al.,
Plaintiffs and Appellants,
A161435
v.
FOSTER FARMS, LLC, et al., (Alameda County
Super. Ct. No. RG17865531)
Defendants and Respondents.
Plaintiffs Serena Wong and Vicki Gruman appeal from an order
denying class certification in an action they filed against defendants Foster
Farms, LLC and Foster Poultry Farms for violations of state law, alleging
those companies’ federally regulated poultry products are misleading and
mislabeled due to the products containing an amount of retained water
greater than that which is displayed on the products’ labels. Plaintiffs
contend reversal is required for several reasons, including that the trial
court’s ruling rests upon an improper merits determination and an erroneous
factual assumption. We disagree and affirm the order denying class
certification.
1
BACKGROUND
An Overview of the Federal Law on Labeling Poultry Products
Poultry labels are federally regulated under the Poultry Products
Inspection Act (PPIA) (21 U.S.C. § 451 et seq.), empowering the United
States Secretary of Agriculture (USDA) to ensure that “poultry products . . .
are . . . not adulterated, and properly marked[, and] labeled.” The USDA
delegated authority to the Administration of Food and Inspection Service
(FSIS) to oversee the labeling of poultry products. (9 C.F.R. § 300.2(a) &
(b)(2).)
During processing, recently slaughtered poultry carcasses are chilled to
cool them down to a safe temperature. (9 C.F.R. §§ 381.65, 381.66.) An
establishment must utilize poultry washing, chilling, and draining practices
and procedures that will minimize water absorption and retention at the time
of packaging. (Id., § 381.66, subd. (d)(1).) The water that is retained in raw
poultry as an unavoidable consequence of post-evisceration processing used to
meet applicable food safety requirements is referred to as “retained water.”
(Id., § 441.10(a).) Raw poultry that retains water must bear a statement on
the label stating the maximum percentage of water that may be retained
(e.g., “up to X% retained water”). (See id., § 441.10(b).)
In order to produce poultry products containing any amount of retained
water, poultry producers like defendants must “maintain on file and make
available to FSIS its written data-collection protocol,” which must explain
how data will be collected and used to demonstrate the amount of retained
water in the product. (9 C.F.R. § 441.10(c)(1).) FSIS reviews the protocol
from the poultry producer and “may object to or require the establishment to
make changes in the protocol” (id., § 441.10(c)(2)) if it finds “that the protocol
is not valid, or that the data collected under it will not be sufficient to
demonstrate that the amount of retained water is an unavoidable
2
consequence of the process used to meet food safety requirements.” (Retained
Water in Raw Meat and Poultry Products; Poultry Chill Requirements,
66 Fed.Reg. 1750, 1763 (Jan. 9, 2001).)[1]
The federal regulations, however, do not dictate to poultry producers
any particular data collection protocol to use. (66 Fed.Reg. at p. 1759.) Nor
do they set a specific limit on the amount of retained water that is allowed.
(Ibid.)
The PPIA contains a preemption provision that preempts state law if
(1) the state law imposes marking, labeling, packaging, or ingredient
requirements, and (2) those requirements are “in addition to, or different
than” the requirements imposed under federal law. (21 U.S.C § 467e.) Thus,
any state may, consistent with the requirements of the PPIA and
implementing regulations, exercise concurrent jurisdiction over products
required to be inspected under the PPIA for the purpose of preventing the
distribution of products that are “adulterated or misbranded.” (Ibid.)
[1]The parties disagree on whether the FSIS “approves” a data
collection protocol where, as here, it reviews an establishment’s protocol and
does not object to it. As a practical matter, the FSIS has referred to its
decision not to object to a protocol as an “approval” of that protocol. (See 66
Fed.Reg. at p. 1751 [“Establishments would be required to collect data, in
accordance with a protocol approved by FSIS, and demonstrate that water
retention is an unavoidable consequence of the process used to meet a food
safety requirement”], italics added; ibid. [“FSIS . . . would accept data
generated from an approved protocol to support water retention levels”],
italics added; accord, Webb v. Trader Joe’s Co. (9th Cir. 2021) 999 F.3d 1196,
1202 [“FSIS’s decision not to object or otherwise require changes operates as
federal approval of that protocol”].) We defer to the FSIS’s interpretations of
the PPIA and its implementing regulations. (See Pacific Bell Wireless, LLC
v. Public Utilities Com. (2006) 140 Cal.App.4th 718, 729; Stinson v. United
States (1993) 508 U.S. 36, 45.)
3
The Parties, the Pleadings, and the Demurrers
Plaintiffs and appellants are Serena Wong and Vicki Gruman2
(collectively, plaintiffs), California residents who purchased raw Foster
Farms-branded poultry products. Defendants and respondents are Foster
Poultry Farms, LLC and Foster Farms, LLC (collectively, defendants),
companies that processed, packaged, labeled, and distributed poultry
products.3
In June 2017, the original complaint was filed, and one month later,
the first amended complaint. It was a putative class action that alleged eight
causes of action: (1) breach of the Consumer Legal Remedies Act (Civ. Code,
§ 1750 et seq.); (2) breach of the California Unfair Competition Law’s (UCL)
prohibition on unfair business practices (Bus. & Prof. Code, § 17200 et seq.);
(3) breach of the UCL’s prohibition on unlawful business practices (ibid.); (4)
false advertising (id., § 17500); (5) breach of express warranty; (6) breach of
implied warranties (Com. Code, § 2314); (7) theft by false pretenses; and (8)
unjust enrichment. These causes of action were all centered around the
theory that the Foster Farms-branded poultry products sold to plaintiffs were
misleading and mislabeled because they contained a percentage of retained
water greater than that which was displayed on the labels, according to
plaintiffs’ own testing of the products.
Defendants filed a demurrer primarily on the ground that plaintiffs’
causes of action were preempted by the PPIA. In January 2018, then Judge
Gruman was added as a plaintiff in the operative, fourth amended
2
complaint and prior to that, another plaintiff was dismissed.
3Also named as defendants are Vons Companies, Inc.’s (Vons) and
Ralphs Grocery Company’s (Ralphs), whose grocery stores were alleged to
have sold Foster Farms-branded products to plaintiffs. Vons and Ralph’s are
not parties to this appeal.
4
(now Justice) Ioana Petrou heard the demurrer. She found the first amended
complaint alleged various theories as to how the chicken labels were
inaccurate. Thus, it was “not entirely clear whether plaintiffs are alleging a
claim that seeks to impose labeling requirements different from or additional
to those imposed by the PPIA.” On that basis, Judge Petrou sustained the
demurrer with leave to amend.
In February 2018, plaintiffs filed a second amended complaint, after
which defendants filed another demurrer on preemption grounds. Judge
Petrou again found the allegations were “not clear . . . on what constitutes the
wrong.” Plaintiffs alleged two “materially different theories: (1) that
[defendants] mislabeled [their] chicken products because they contained more
retained water at the time they were packaged than disclosed; and (2) that
[their] chicken products violated labeling guidelines because the packaging
contained more liquid at the time of consumption and testing by the Plaintiffs
than was disclosed in the ‘retained water’ disclosure.” Judge Petrou found
the second theory was preempted. That theory relied on the premise that
“purge” or “weep”—the naturally occurring liquid that seeps out of a product
after it is packaged and as it sits on the grocery shelf or in a customer’s
refrigerator—should be counted as retained water. Because purge is not
retained water within the meaning of the PPIA,4 Judge Petrou held that the
second theory imposed a standard “in addition to, or different than” the
federal statute and regulations. Judge Petrou sustained the demurrer with
leave to amend to allow plaintiffs to clarify their theory of liability.
4 (See FSIS’s “Compliance Guidelines for Retained Water” (June 2005),
, Question No. 33, p. 13;
FSIS, “Water in Meat and Poultry,” [as of Mar. 17, 2022].)
5
Days after that ruling, plaintiffs filed a third amended complaint,
which reasserted the same eight causes of action. Plaintiffs alleged they
purchased defendants’ poultry products and had them tested, which testing
revealed that, at the time of packaging, the products included significantly
more retained water than declared on the labels. According to plaintiffs,
defendants packaged their poultry products by placing superabsorbent pads
underneath the product, allowing them to hide most of the excess retained
water from the consumer. Thus, plaintiffs asserted “[t]he products are falsely
labeled at the time [they] are packaged in [defendants’] facility because they
do not accurately disclose the amount of water included in the products as
retained water,” in violation of the PPIA “as well as California law.”
Plaintiffs alleged they were harmed by paying more for economically
adulterated and misbranded products.
Defendants filed another demurrer, arguing that plaintiffs’
methodologies for testing defendants’ products were not credible. Judge
Petrou rejected this argument and overruled the demurrer. She found that
plaintiffs “pleaded that [defendants] mislabeled [their] chicken products by
packing them with more retained water than was disclosed on their labeling,
in violation of the standards set by the PPIA and its implementing
regulations.” That theory, Judge Petrou determined, “can support claim for
relief.”
In June 2019, the operative, fourth amended complaint was filed,
adding Gruman as a plaintiff, but otherwise reasserting the same allegations
and causes of action as the third amended complaint.
The Motion for Class Certification
On September 24, 2019, plaintiffs filed their motion for class
6
certification.5 Plaintiffs sought to certify a class and two subclasses of
California consumers who purchased Foster Farms-branded poultry products
during the class period.
Under the heading “Summary of Facts and Common Proof” in their
motion, plaintiffs stated that after they had purchased defendants’ products,
they had those products tested and found that the products contained an
unlawful excess of retained water. Plaintiffs offered evidence of their post-
purchase testing as support of their claim.
As material here, plaintiffs also argued that defendants’ own data
produced in discovery “confirmed” the findings from plaintiffs’ own testing.
In support, plaintiffs presented as their own evidence defendants’ “Moisture
Gain Evaluation” for one of defendants’ processing facilities. Moisture gain
data, plaintiffs described, “revealed bird weights before and after the poultry
underwent the wet chilling process.” Because the moisture gain percentages
were denoted in defendants’ documents as “% H2O retained,” plaintiffs and
their expert Dr. Goedde assumed that the moisture gain percentages
measured, and were equivalent to, the amount of retained water in
defendants’ products. And because the “% H2O retained” numbers were
higher than the percentages of retained water that were stated on the
5 Plaintiffs also filed a motion to file under seal their class certification
motion and several documents. The motion was granted, and plaintiffs filed
under seal the certification motion and two exhibits attached to their
attorney’s declaration: defendants’ sales data on poultry products and the
report of plaintiffs’ damages expert, Dr. Alan Goedde, which referenced the
sales data. Those documents were also filed under seal in this court. We
have reviewed the publicly filed versions of the documents and have
concluded that we do not need to use or rely upon the unredacted version of
the documents filed under seal, with the exception of Dr. Goedde’s report,
which we cite to without any specific detail.
7
products’ labels, plaintiffs argued that defendants falsified their product
labels.
Defendants filed an opposition to the motion, along with evidentiary
objections to, and a motion to strike, Dr. Goedde’s report and opinions, among
other evidence presented by plaintiffs. The opposition was accompanied by
the declaration and report of Alling Yancy, DVM, their food safety and
product regulatory compliance consultant, and the declaration of Casey
Fripp, their Director of Food Safety and Quality Assurance. Fripp’s
declaration in turn attached as exhibits defendants’ “Protocol for Evaluating
Retained Water in Single Ingredient Poultry Product” they submitted to the
FSIS in June 2015 and an August 2015 letter from the FSIS stating it had
“no objection to the submitted protocol.”
Defendants argued that plaintiffs failed “to show that they will be able
to come forward with classwide evidence establishing the falsity of the
retained water statement,” thereby “mak[ing] class treatment unsuitable.”
Defendants asserted that plaintiffs’ evidence and expert opinions relied on
certain measurements that they incorrectly assumed reflected the amount of
retained water in defendants’ products. First, defendants and their expert
Yancy explained that plaintiffs did not measure retained water during their
post-purchase testing of defendants’ products because their measurements
included purge. Defendants noted that Judge Petrou previously determined
that any theory of liability that purported to count purge as retained water
was preempted as a matter of law. As such, defendants argued that plaintiffs
could no longer pursue such theory on class certification.
Second, defendants argued that plaintiffs and their expert incorrectly
assumed that defendants’ moisture gain data measured retained water. By
way of background, Fripp explained in his declaration how defendants
8
measured and labeled the amount of retained water in their poultry products,
an explanation supported by the following evidence which is not disputed.
In June 2015, defendants submitted a data collection protocol to the
FSIS for review. In August 2015, FSIS replied to defendants, stating it
reviewed the protocol and had “no objection to [it].”
Under that protocol, Fripp explained, defendants measured retained
water using a chemical analysis referred to as “oven drying” testing. This
test is a destructive test in that the poultry is destroyed during the process,
and includes the following steps: “A. The carcass goes through the water
immersion chilling process and is then allowed to hang and drip for six to
eight minutes. The hang time of the carcass varies to account for the
differing length of time it takes to process a carcass from the time it leaves
the chiller until it is finally packaged on each individual line . . . [¶] B. After
the hanging and dripping time is complete, the carcass is ground up and
weighed. [¶] C. The ground up carcass is then heated until all moisture is
eliminated, which basically turns the carcass into dust. [¶] D. The weight of
the dry sample . . . is then compared to the weight of the sample before the
oven drying to determine the percentage of moisture in the product. [¶]
E. The percent of naturally occurring moisture published by the USDA for a
whole raw chicken fryer, which is 66%, is then subtracted from the moisture
derived from the oven drying test. [¶] F. The result is the percentage of
retained water.”
Next, Fripp stated that defendants calculate the percentage of moisture
gain as a way to validate the measurement of retained water under the oven
drying test through “check[ing] or verif[ying] . . . the day-to-day operations at
the plant.” Chiller moisture gain percentage is derived from weighing a
carcass before it enters the chiller and after the carcass exits the chiller and
9
is allowed to hang for the pre-determined processing time. The difference
between the pre-chiller weight and the post-chiller weight, divided by the pre-
chiller weight, equals the percentage of chiller moisture gain. Fripp stated,
“By measuring the amount of chiller moisture gain, [defendants are] verifying
that the processing of poultry is operating under the same conditions that
were used to establish the retained water statement.” Fripp then clarified
that under defendants’ protocol, moisture gain “is not a measurement of
retained water.”
Based on this evidence, defendants maintained that plaintiffs, in
arguing that defendants should have used moisture gain to measure retained
water, required defendants to conform to a data collection protocol different
from the one they had properly developed for, and submitted to, the FSIS as
required by federal law.
Plaintiffs filed a reply, accompanied by the report of their “rebuttal
expert” Marianne Delperdang, who opined that defendants’ moisture gain
data “show[ed] the amount of retained water.” That data, she concluded,
demonstrated that the percentage of retained water in defendants’ products
exceeded that which was reflected in the labels.
Defendants filed a sur-reply and a motion to strike Delperdang’s report.
In their sur-reply, defendants asserted that “plaintiffs continue to insist on a
different way to determine retained water (via moisture gain testing), which
means they have (again) confirmed that they are attempting to impose non-
identical requirements and, therefore, are pursuing a preempted theory of
liability. Because oven-drying testing is the proper PPIA-compliant method
to determine retained water—and because [defendants’] oven drying results
confirm the challenged retained water label statements—plaintiffs have also
failed to establish classwide evidence of deception.”
10
Before the August 18 hearing on the motion, Judge Brad Seligman
issued a tentative ruling ordering that they be prepared to discuss the
following issues at the hearing: “Plaintiffs’ papers are not clear on how,
exactly, [defendants] violated the [PPIA] and federal retained water
regulations. The Court sees three possible theories supported to different
degrees by Plaintiffs’ evidence: (a) Did [defendants] err by failing to disclose
the amount of liquid that would be in packaging at the point of sale or
consumption? (b) Did [defendants] err by failing to disclose the amount of
moisture gain as measured immediately after poultry carcasses are removed
from an immersion chiller before further processing and packaging? (c) Did
[defendants] err by failing to disclose the amount of retained water as
determined under the oven-drying testing protocol it submitted to FSIS? Or
(d) did [defendants] violate the PPIA and federal regulations in some other
way not mentioned here?”
At the August 18 hearing, Judge Seligman and plaintiffs’ counsel
engaged in a lengthy discussion aimed at clarifying the theory of liability
upon which plaintiffs sought class certification. Ultimately, Judge Seligman
confirmed plaintiffs were asserting two bases for liability under the PPIA.
Those theories were first, that defendants’ retained water label statements
violated the PPIA because they did not “reflect [their] moisture gain
measurements” (the “moisture gain theory”); and second that defendants’
“protocol . . . itself creates a class certification issue because either they
misrepresented something or they violated something in the [PPIA] in their
own protocol” (the “protocol theory”).
Judge Seligman then asked plaintiffs’ counsel to identify where in the
record plaintiffs asserted the protocol theory. When counsel could not
provide any supporting record citations, Judge Seligman gave plaintiffs one
11
week to file a statement showing “where in [their] papers [they] made those
arguments and what evidentiary support there is.” 6
One week later, plaintiffs filed a statement acknowledging that at the
hearing, “they argued a theory of their case that the protocol submitted by
the defendant[s] doesn’t comply with the PPIA and/or defendant’s [sic] did
not follow the submitted protocol.” Plaintiffs then stated, “the Court was
correct and no relevant page citations exist” in their certification papers
concerning those theories. Plaintiffs, however, intended to file a motion for
leave to amend their complaint to allege the new theories. Such motion was
later filed.
On September 14, Judge Seligman denied the motion for class
certification by order. First, pointing to plaintiffs’ evidence based on their
post-purchase laboratory testing and use of measurements that included
purge, Judge Seligman stated “[p]laintiffs’ evidence of common issues of law
and fact only relate to theories of liability that the Court has already twice
considered and rejected” as preempted in the prior demurrer rulings.7
6 Judge Seligman also explored whether it was necessary to hold an
evidentiary hearing to address defendants’ challenges to the admissibility of
Dr. Goedde’s and Delperdang’s reports and opinions expressed in them. The
parties agreed that such a hearing was unnecessary. On the same day as the
hearing, Judge Seligman granted defendants’ motion to strike and sustained
their objections with respect to portions of Dr. Goedde’s report not at issue in
this appeal. However, it does not appear that Judge Seligman ruled on the
admissibility of other aspects of the report related to the issue of moisture
gain. Likewise, the record does not show he ruled on defendants’ motion to
strike portions of Delperdang’s report.
7Plaintiffs state “that evidence is not at issue in [this] appeal.” We
thus presume they no longer are pursuing the claim rejected by the court and
consider it abandoned. (See Tiernan v. Trustees of Cal. State University &
Colleges (1982) 33 Cal.3d 211, 216, fn. 4; Humes v. Margil Ventures, Inc.
(1985) 174 Cal.App.3d 486, 493.)
12
Second, Judge Seligman determined that “Plaintiffs’ evidence that
[defendants’] ‘chiller moisture gain’ measurements show higher amounts of
water were retained by carcasses than was ultimately disclosed on packaging
labels suffers a . . . deficiency because it does not distinguish between water
retained by a carcass immediately after immersion and the amount of
retained water in the final product after processing.” “Likewise, it does not
tend to show that [defendants] failed either to file a compliant retained water
protocol or to follow that protocol during data collection.” Instead, he
concluded, “Plaintiffs’ evidence and expert opinions were directed toward
proving theories of liability, then, that were not the causes of action pleaded
in [their] operative Fourth Amended Complaint.”
Judge Seligman continued: “At oral argument, the Court asked
Plaintiff[s] to clarify their theory of liability. Counsel stated that Plaintiffs
now contend that [defendants’] retained water protocol does not comply with
the requirements set forth in regulations promulgated by the [FSIS] . . .
under the authority of the [PPIA]. The Court ordered Plaintiffs to submit a
supplemental statement including citations to argument in their class
certification papers supporting that theory of liability. The supplemental
brief concedes that Plaintiffs[] made no such argument in their papers.
[Citation.] Instead, it indicates that Plaintiffs intend to move for leave to file
an amended complaint that clearly alleges a cause of action based on this
revised theory of liability.
“Because the common issues of law and fact on which Plaintiffs seek
class certification do not support the causes of action pleaded in the [fourth
amended complaint], the Court does not grant certification.”8
Judge Seligman subsequently denied plaintiffs’ motion to file a fifth
8
amended complaint. He stated: “In multiple pleading orders up through the
13
This appeal followed.
DISCUSSION
The Law and Standard of Review
Class actions are statutorily authorized by Code of Civil Procedure
section 382: “[W]hen the question is one of a common or general interest, of
many persons, or when the parties are numerous, and it is impracticable to
bring them all before the court, one or more may sue or defend for the benefit
of all.” In order to obtain class status, the class action proponent bears the
burden of establishing the propriety of class certification, which requires that
the proponent “must establish the existence of both an ascertainable class
and a well-defined community of interest among the class members.
[Citations.] The community of interest requirement involves three factors:
‘(1) predominant common questions of law or fact; (2) class representatives
with claims or defenses typical of the class; and (3) class representatives who
can adequately represent the class.’ [Citation.]” (Linder v. Thrifty Oil Co.
(2000) 23 Cal.4th 429, 435 (Linder).)
The Consumer Legal Remedies Act (CLRA), upon which plaintiffs’ first
cause of action is based, also authorizes class actions. (Civ. Code, § 1781.)
The CLRA sets out four conditions that, if met, mandate certification of a
class: “(1) It is impracticable to bring all members of the class before the
court’s October 9, 2018 order, the court has made clear that the only claims
that are not preempted are claims based on a violation of the applicable
federal law (PPIA) and regulation[s]. Despite this, plaintiffs filed a massive
class certification motion, which ultimately included rebuttal and sur-
rebuttal briefs and numerous motions to strike and evidentiary objections,
and which turned out to not be based on the permitted theory at all, as
plaintiffs were forced to admit after the court asked their counsel to identify
any portion of their voluminous papers that was based on the permitted
theory. The motion was accordingly denied.”
14
court. [¶] (2) The questions of law or fact common to the class are
substantially similar and predominate over the questions affecting the
individual members. [¶] (3) The claims or defenses of the representative
plaintiffs are typical of the claims or defenses of the class. [¶] (4) The
representative plaintiffs will fairly and adequately protect the interests of the
class.” (Civ. Code, § 1781, subd. (b).)
Predominance is the primary class certification requirement at issue in
this case. “The ‘ultimate question’ the element of predominance presents is
whether ‘the issues which may be jointly tried, when compared with those
requiring separate adjudication, are so numerous or substantial that the
maintenance of a class action would be advantageous to the judicial process
and to the litigants.’ [Citations.] The answer hinges in ‘whether the theory
of recovery advanced by the proponents of certification is, and an analytical
matter, likely to prove amenable to class treatment.’ [Citation.] A court
must examine the allegations of the complaint and supporting declarations
[citation] and consider whether the legal and factual issues they present are
such that their resolution in a single class proceeding would be both desirable
and feasible.” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th
1004, 1021–1022 (Brinker).)
Under either statute, “the question of certification [is] essentially a
procedural one that does not ask whether an action is legally or factually
meritorious.” (Linder, supra, 23 Cal.4th at pp. 439–440.) But this does not
mean the trial court always must ignore the merits of the case. (See Brinker,
supra, 53 Cal.4th at pp. 1023–1025.) As our Supreme Court recognized,
“issues affecting the merits of a case may be enmeshed with class action
requirements . . . .” (Linder, at p. 443.) Thus, in Brinker, the Court held: “To
the extent the propriety of certification depends upon disputed threshold
15
legal or factual questions, a court may, and indeed must, resolve them. Out
of respect for the problems arising from one-way intervention, however, a
court generally should eschew resolution of such issues unless necessary.”
(Brinker, at p. 1025.)
As to how a ruling on class certification is reviewed, Brinker, supra,
53 Cal.4th at p. 1022 confirms the law: “On review of a class certification
order, an appellate court’s inquiry is narrowly circumscribed. ‘The decision to
certify a class rests squarely within the discretion of the trial court, and we
afford that decision great deference on appeal, reversing only for a manifest
abuse of discretion: “Because trial courts are ideally situated to evaluate the
efficiencies and practicalities of permitting group action, they are afforded
great discretion in granting or denying certification.” [Citation.] A
certification order generally will not be disturbed unless (1) it is unsupported
by substantial evidence, (2) it rests on improper criteria, or (3) it rests on
erroneous legal assumptions. [Citations.]’ [Citations.] Predominance is a
factual question; accordingly, the trial court’s finding that common issues
predominate generally is reviewed for substantial evidence. [Citation.]’ ”
“ ‘So long as [the trial] court applies proper criteria and its action is
founded on a rational basis, its ruling must be upheld.’ ” (Brinker, supra,53 Cal.4th at p. 1022, quoting Hamwi v. Citinational-Buckeye Inv. Co. (1977)
72 Cal.App.3d 462, 472.) One valid reason for denying certification is
sufficient. (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319,
327 (Sav-On.)
16
Judge Seligman Did Not Abuse His Discretion in Denying
Certification
The Denial Was Not Based on an Improper Merits Inquiry
Plaintiffs contend that Judge Seligman abused his discretion because
he probed into the substantive merits of their operative complaint in denying
class certification.9 We disagree.
First, plaintiffs argue that Judge Seligman “denied class certification
based on [its] assessment of the ‘legal sufficiency’ of the plaintiffs’ theory of
liability, a merits issue.” They are mistaken. Plaintiffs’ argument is in
reference to Judge Seligman’s statement in the order that “the alleged
common issues of law and fact on which [p]laintiffs seek certification have
already been held legally insufficient.” Such finding was made with respect
to plaintiffs’ theory of liability that defendants’ products violated the PPIA
because the packaging contained more liquid at the time of consumption and
testing by the plaintiffs than was disclosed on the “retained water” labels.
Judge Seligman correctly observed that such claim had been previously
considered and held preempted as a matter of law by Judge Petrou when she
sustained defendants’ demurrer to the second amended complaint. Thus,
contrary to plaintiffs’ assertion, Judge Seligman did not assess the “legal
sufficiency” of their theory of liability. Rather, he simply observed that such
theory already had been “weed[ed] out [as] legally meritless . . . prior to
certification via [defendants’] demurrer.” (Linder, supra, 23 Cal.4th at
p. 440.) It was entirely proper for Judge Seligman to preclude plaintiffs from
9 This is plaintiffs’ second argument in their opening brief. We address
it first, as it affects the resolution of their remaining arguments. We also
note that plaintiffs’ second argument has a sub-part, which asserts a due
process challenge to Judge Seligman’s failure to afford plaintiffs an
opportunity to brief issues allegedly raised by him for the first time at the
certification hearing. We address that claim below.
17
pursuing a theory on class certification that already had been rejected by the
court.
Second, plaintiffs assert that Judge Seligman engaged in an improper
merits analysis when he “compar[ed] [their] record evidence at the time of the
hearing with that introduced by [defendants]” and concluded “that evidence
did not support a final merits determination in [plaintiffs’] favor at that
time.” This argument also does not support reversal.
Plaintiffs are correct that the substantive merits of the complaint’s
allegations generally are not at issue on class certification. (Linder, supra,23 Cal.4th at pp. 443; Brinker, supra, 53 Cal.4th at p. 1023.) By the same
token, however, the focus of the class certification inquiry is on “the nature of
the legal and factual disputes likely to be presented,” (Brinker, at p. 1025) as
those disputes are framed not only by the pleadings but also by the
defendants’ answer and affirmative defenses. (Id. at p. 1024, citing Fireside
Bank v. Superior Court (2007) 40 Cal.4th 1069, 1092 [trial court may consider
“how various claims and defenses relate and may affect the course of the
litigation”]; see also Walsh v. IKON Office Solutions, Inc. (2007)
148 Cal.App.4th 1440, 1450.) Because that inquiry frequently will be
“enmeshed” with “issues affecting the merits of a case” (Linder, at p. 443),
“when evidence or legal issues germane to the certification question bear as
well on aspects of the merits, a court may properly evaluate them.” (Brinker,
at pp. 1023–1024.) In particular, “whether common or individual questions
predominate will often depend upon resolution of issues closely tied to the
merits.” (Id. at p. 1024.) That is because a court must determine “whether
the elements necessary to establish liability are susceptible of common proof.”
(Ibid.)
18
Stated differently, “a trial court must examine the plaintiff’s theory of
recovery, assess the nature of the legal and factual disputes likely to be
presented, and decide whether individual or common issues predominate. To
the extent the propriety of certification depends upon disputed threshold
legal or factual questions, a court may, and indeed must, resolve them.”
(Brinker, supra, 53 Cal.4th at p. 1025.)
“[I]f the parties’ evidence is conflicting on the issue of whether common
or individual questions predominate . . . the trial court is permitted to credit
one party’s evidence over the other’s in determining whether the
requirements for class certification have been met—and doing so is not . . . an
improper evaluation of the merits of the case.” (Dailey v. Sears, Roebuck &
Co. (2013) 214 Cal.App.4th 974, 991 (Dailey).) The trial court has “discretion
to credit [one party’s evidence on predominance] over [the other’s], and we
have no authority to substitute our own judgment for the trial court’s
respecting this or any other conflict in the evidence.” (Sav-On, supra,34 Cal.4th at p. 331.)
Thus, “a class plaintiff’s theory of common proof must be more than
wishful thinking; it must have a foundation in the evidence.” (Payton v. CSI
Electrical Contractors, Inc. (2018) 27 Cal.App.5th 832, 842; see Brinker,
53 Cal.4th at p. 1021 [instructing that a trial court must examine the
plaintiff’s complaint “and supporting declarations” in determining whether
the “ ‘theory of recovery advanced by the proponents of certification is, as an
analytical matter, likely to prove amenable to class treatment’ ”].) Plaintiffs
are “required to do more than simply show that common issues exist. Rather,
plaintiffs need[ ] to ‘place substantial evidence in the record that common
issues predominate.’ ” (Morgan v. Wet Seal, Inc. (2012) 210 Cal.App.4th
1341, 1354−1355; see Cruz v. Sun World Internat., LLC (2015)
19
243 Cal.App.4th 367, 384, disapproved on another ground in Noel v. Thrifty
Payless, Inc. (2019) 7 Cal.5th 955, 986, fn. 15 [plaintiffs “may not simply
allege” a uniform policy or practice, but must “present substantial evidence
that proving both the existence of the defendant’s uniform policy or practice
and the alleged illegal effects of that policy or practice could be accomplished
efficiently and manageably within a class setting”].)
The theory of liability that plaintiffs focus on in this appeal is their
“moisture gain theory.” That theory, as they frame it, is this: “[Defendants’]
‘Moisture Gain’ measurements calculate the same mathematical quantity as
‘Retained Water’ as defined under the PPIA and are therefore competent
evidence tending to prove that the Products exceed their labeled Retained
Water [statements].” In support of their argument that liability could be
determined using common proof, plaintiffs relied on the data defendants
compiled in their “Moisture Gain Evaluation” at one of their poultry
processing facilities, and plaintiffs’ experts’ interpretations of defendants’
data.
Moisture gain, calculated as the difference between the weight of a bird
before and after it is immersed in the chiller, was indicated in defendants’
documents as “% H2O retained.” Plaintiffs thus assumed that defendants’
moisture gain percentages necessarily measured the amount of retained
water for purposes of the PPIA. Because the numbers quantified as “% H2O
retained” in defendants’ documents apparently were higher than the
percentages of retained water that were stated on some of defendants’
products’ labels, plaintiffs argued that defendants mislabeled their products.
Defendants, of course, did not concede to plaintiffs’ interpretations of
defendants’ own data. Defendants presented the declaration of one of their
employees along with supporting documentary evidence detailing the process
20
by which they measure retained water. That evidence established that
defendants submitted a data collection protocol to the FSIS; that protocol
called for the oven drying testing method to measure retained water, and
separately, moisture gain as a process control check on that method; and that
the FSIS stated it reviewed that protocol and had no objection to it. Plaintiffs
did not dispute this evidence. As such, it was undisputed that under
defendants’ retained water protocol, chiller moisture gain was not used to
measure retained water. Defendants argued that to the extent plaintiffs
insisted otherwise, they “fundamentally misunderst[ood] the import and
application of the chiller moisture gain data.” Also, in light of the
requirements under the PPIA and its regulations that defendants measure
retained water in accordance with their FSIS-reviewed protocol (9 C.F.R.
§ 441.10(a), (c), (d)), defendants asserted that plaintiffs failed to establish
that defendants’ moisture gain data provided a method to prove class-wide
liability.
Judge Seligman examined both parties’ evidence in light of the PPIA
and its implementing regulations. He found that the factual predicate of
plaintiffs’ “moisture gain theory”—that defendants’ moisture gain data in fact
measured the amount of retained water in their products—was unsupported
by the record. Specifically, he determined the moisture gain calculations
relied upon by plaintiffs failed to “distinguish between water retained by a
carcass immediately after immersion and the amount of retained water in the
final product after processing.” In other words, the evidence did not
demonstrate that the measurements were taken at the point in time when
“retained water” is determined for purposes of the PPIA. (9 C.F.R.
§§ 381.66(d), 441.10.) In so finding, Judge Seligman appears to have credited
defendants’ evidence that that they submitted a protocol to the FSIS, to
21
which the FSIS did not object, and that under such protocol, moisture gain
was used as a mere process control check, rather than the actual method of
measuring retained water in the final product after processing.
Judge Seligman also found plaintiffs’ moisture gain evidence “does not
tend to show that [defendants] failed to file, or abide by, a compliant retained
water protocol under FSIS’s retained water regulation[s].” In so finding,
Judge Seligman again apparently credited defendants’ evidence that they did
not use moisture gain to measure retained water. Thus, he determined that
plaintiffs had no evidence tending to show that defendants incorrectly
measured retained water, such that they failed in their obligations of
developing and complying with a valid retained water protocol as required by
federal law. (9 C.F.R. § 441.10.)
Contrary to plaintiffs’ argument, Judge Seligman did not improperly
make a “a final merits determination.” He did not, as plaintiffs contend,
“assess[] a merits question divorced from consideration of any of the criteria
for class certification.” Rather, under the authorities discussed above, Judge
Seligman was entitled to, and did, weigh the evidence for the purpose of
determining whether the class certification requirements, namely
predominance, were met. (Dailey, supra, 214 Cal.App.4th at p. 991.)
Specifically, he was permitted to consider the evidence in determining
whether plaintiffs established the existence of an unlawful practice or
procedure of mislabeling products with a classwide impact. (Id. at p. 989.)
He was not required to simply accept plaintiffs’ mere assertion that the
moisture gain data provided a common method of proving class-wide liability,
as plaintiffs seem to suggest. Accordingly, when Judge Seligman found that
such common theory of proof had no foundation in the evidence, he was
acting within his discretion.
22
The Denial Was Supported by the Record
Plaintiffs contend the trial court denied class certification based on its
erroneous factual assumption that defendants’ “ ‘[m]oisture [g]ain’
measurements were taken ‘before processing and packaging’ and therefore
did not measure ‘[r]etained [w]ater’ because it did not reflect the condition of
the [p]roducts at the point of packaging.”
Initially, plaintiffs do not expressly identify the standard of review that
applies to their argument. They mention in passing that where the denial of
class certification is based “on erroneous assumptions, that decision cannot
stand,” citing to Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th
522. However, the cited statement was made with respect to “erroneous legal
assumptions.” (Id., at p. 537, italics added.) Because plaintiffs’ argument
depends on the evaluation of disputed factual evidence, we review Judge
Seligman’s factual findings for substantial evidence. (Sevidal v. Target Corp.
(2010) 189 Cal.App.4th 905, 918, citing Sav-On, supra, 34 Cal.4th at p. 328;
Massachusetts Mutual Life Ins. Co. v. Superior Court (2002) 97 Cal.App.4th
1282, 1287–1288.)
On an appeal challenging the sufficiency of the evidence, an appellant’s
opening brief must set forth all the material evidence on point; the brief
cannot merely state facts favorable to the appellant. (Foreman & Clark
Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) “It is the appellant’s burden, not
the court’s, to identify and establish deficiencies in the evidence.” (Huong
Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409.) When an appellant’s
opening brief states only the favorable facts, ignoring evidence favorable to
respondent, the appellate court may treat the substantial evidence issues as
waived and presume the record contains evidence to sustain every finding of
fact. (Doe v. Roman Catholic Archbishop of Cashel & Emly (2009)
177 Cal.App.4th 209, 218.)
23
Here, in their opening brief, plaintiffs cherry pick isolated pieces of
evidence as support for a conclusion that they insist Judge Seligman should
have made—that defendants’ moisture gain data measured retained water.
Plaintiffs do not discuss the evidence that provides the context of the data
upon which they rely, much less the evidence favorable to defendants.
Because plaintiffs have failed in their obligations concerning the discussion
and analysis of a substantial evidence issue, we deem the issue forfeited.
(Doe v. Roman Catholic Archbishop of Cashel & Emly, supra,
177 Cal.App.4th at p. 218.)
Even overlooking the forfeiture, substantial evidence supports Judge
Seligman’s finding that plaintiffs’ evidence failed to establish that the
moisture gain data measured retained water. Where the class certification
order turns on inferences to be drawn from the facts, we have “ ‘ “no
authority to substitute [our] decision for that of the trial court.” ’ ”
(Massachusetts Mutual Life Ins. Co. v. Superior Court, supra, 97 Cal.App.4th
at p. 1287; see Brinker, supra, 53 Cal.4th at p. 1022 [“We must ‘[p]resume in
favor of the certification order . . . the existence of every fact the trial court
could reasonably deduce from the record . . .’ ”].) As discussed, the evidence
ignored by plaintiffs showed that under defendants’ protocol, the oven drying
method was used to measure retained water, while moisture gain testing
was used as a process control check on the oven drying method. When used
as a process control check, moisture gain testing, plaintiffs acknowledge, is
“designed to mimic the Products’ condition at the point of packaging.”
(Italics added.) Thus, the results of defendants’ moisture gain testing were
not used to represent the actual amount of retained water. Additionally,
24
there was no evidence that defendants did not follow their protocol.10
Therefore, Judge Seligman could reasonably conclude that moisture gain
was not a measure of, or equivalent to, the amount of retained water in
defendants’ final product after processing.
Judge Seligman Did Not Ignore the Class Criteria
Plaintiffs argue Judge Seligman committed reversible error because he
failed to address the elements for class certification in Code of Civil
Procedure section 382 and Civil Code section 1781. In a related argument,
plaintiffs assert Judge Seligman further erred because he did not
“distinguish its reasoning applicable to the Section 382 causes of action from
those governed by the CLRA Section 1781 [claim].” We disagree on both
counts.
Plaintiffs are incorrect that Judge Seligman did not address any of the
statutory class certification elements in the order denying the motion.
Although the order does not include specific findings on each of the class
criteria, the record discloses that the certification dispute turned on the
element of predominance. (See Dailey, supra, 214 Cal.App.4th at p. 986
[“[E]ven if the trial court’s order on class certification does not state reasons,
or does so without providing detail, it will be deemed sufficient for review
purposes so long as the basis for the court’s ruling may be discerned from the
record”].) The order repeatedly refers to and analyzes the “common issues of
law and fact” identified by plaintiffs and expressly bases the denial of class
certification on such analysis. At the hearing, Judge Seligman stated at the
outset, “What I have to decide is, based on your theory of the case, are there .
. . substantial common questions in the case[?]” Because Judge Seligman’s
10 Indeed, after the certification hearing, plaintiffs filed a motion for
leave to amend the operative complaint to include new allegations that
defendant did not follow their submitted protocol.
25
reasoning was discernible from his statements and context, we reject
plaintiffs’ argument that he ignored the statutory criteria for class
certification.
To the extent plaintiffs suggest that specific findings must be made on
each of the class criteria, plaintiffs are wrong. None of the cases that
plaintiffs cite supports this point. The cited portions of those cases simply
discuss general principles of class action law. (See, e.g., Linder, supra,23 Cal.4th at p. 437, Noel v. Thrifty Payless, Inc., supra, 7 Cal.5th at pp. 968–
969, Myers v. Raley’s (2019) 32 Cal.App.5th 1239, 1247, and Stephens v.
Montgomery Ward (1987) 193 Cal.App.3d 411, 412.) In any event, specific
findings on each of the class certification criteria are not required.
(Osborne v. Subaru America, Inc. (1988) 198 Cal.App.3d 646, 652, fn. 1.)
We also reject plaintiffs’ argument that Judge Seligman committed
reversible error by not distinguishing between Code of Civil Procedure
section 382 and Civil Code section 1781 in his analyses. Even if the failure to
distinguish between the two statutes was error—which plaintiffs have not
established—they fail to demonstrate any prejudice. “An appellant bears the
burden to show not only that the trial court erred, but also that the error was
prejudicial in that it resulted in a miscarriage of justice. (Cal. Const., art. VI,
§ 13; Code Civ. Proc., § 475.) An error is prejudicial and results in a
miscarriage of justice only if the reviewing court concludes, based on its
review of the entire record, that it is reasonably probable that the trial court
would have reached a result more favorable to the appellant absent the error.
(Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.)” (Jones v. Farmers
Ins. Exchange (2013) 221 Cal.App.4th 986, 999.) As defendants note,
plaintiffs do not “explain what distinctions between [Code of Civil Procedure]
Section 382 and the CLRA the trial court in this case should have taken into
26
account—much less how any distinctions would have made a difference.”
Accordingly, any error in failing to distinguish between the two statutory
frameworks does not require reversal.
The Due Process Challenge Fails
Plaintiffs argue that they were deprived of due process when Judge
Seligman sua sponte raised new theories of liability at the certification
hearing without giving plaintiffs an opportunity to brief those theories.
In the first place, the claim is forfeited because plaintiffs did not raise a
due process concern below, request to present additional briefing, or
otherwise object to the alleged irregularity. (Mundy v. Lenc (2012)
203 Cal.App.4th 1401, 1406 [“ ‘As a general rule, failure to raise a point in
the trial court constitutes [a] of waiver and appellant is estopped to raise that
objection on appeal’ ”]; Geftakys v. State Personnel Board (1982)
138 Cal.App.3d 844, 864 [“It is the general rule applicable in civil cases that a
constitutional question must be raised at the earliest opportunity or it will be
considered as waived”].)
The claim is also unavailing. It is based on the faulty premise that
Judge Seligman himself, as opposed to plaintiffs, raised new theories of
liability at the hearing. The record shows that Judge Seligman and plaintiffs’
counsel engaged in a lengthy discussion aimed at clarifying plaintiffs’ theory
of liability because it was not clearly stated in their certification papers.
During this discussion, counsel stated plaintiffs were asserting several
theories of liability under the PPIA. Judge Seligman repeated those theories
as he understood them and asked counsel to confirm whether his
understanding was correct. In response, counsel would either state
affirmatively that Judge Seligman’s descriptions of plaintiffs’ theories were
correct or acquiesce to his descriptions by not objecting to them and
proceeding to expound upon them. Thus, the record does not demonstrate
27
that Judge Seligman raised new theories of liability on his own initiative. On
the contrary, as plaintiffs later admitted, it was they who raised new
arguments at the hearing that were not raised in their certification papers.
On top of that, plaintiffs filed a motion to file a fifth amended complaint to
allege those new theories of liability.
DISPOSITION
The order is affirmed. Defendants shall recover their costs on appeal.
28
_________________________
Richman, Acting P. J.
We concur:
_________________________
Stewart, J.
_________________________
Mayfield, J. *
Wong v. Foster Farms, LLC (A161435)
*Judge of the Mendocino Superior Court, Judge Cindee Mayfield, sitting as
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
29