Pfizer Inc. v. Superior Court

• Decision Date: 25 February 2010
• Docket Number: No. B188106.,B188106.
• Citation: 182 Cal.App.4th 622
• Court: California Court of Appeals Court of Appeals
• Parties: PFIZER INC., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; STEVE GALFANO, Real Party in Interest.

182 Cal.App.4th 622

PFIZER INC., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent STEVE GALFANO, Real Party in Interest.

No. B188106.

Court of Appeals of California, Second District, Division Three.

February 25, 2010.

Kaye Scholer, Thomas A. Smart, Richard A. De Sevo and Jeffrey S. Gordon for Petitioner.

Shook, Hardy & Bacon, Natasha Mosley, Victor E. Schwartz, Cary Silverman; Erika Cuneo Frank; and Robin S. Conrad for Chamber of Commerce of the United States of America and the California Chamber of Commerce as Amici Curiae on behalf of Petitioner.

No appearance for Respondent.

Westrup Klick, R. Duane Westrup, Christine C. Choi; and Allan A. Sigel for Real Party in Interest.

Schubert Jonckheer Kolbe & Kralowec, Kimberly A. Kralowec; Arbogast & Berns and David M. Arbogast for Consumer Attorneys of California as Amicus Curiae on behalf of Real Party in Interest.

OPINION

KLEIN, P. J.

Defendant Pfizer Inc. (Pfizer), the manufacturer of Listerine mouthwash, seeks a writ of mandate to overturn respondent superior court's November 22, 2005 order certifying a class action filed by plaintiff and real party in interest Steve Galfano (Galfano). The complaint, brought pursuant to the unfair competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.)¹ and the false advertising law (FAL) (§ 17500 et seq.), alleges Pfizer marketed Listerine in a misleading manner by representing the use of Listerine can replace the use of dental floss in reducing plaque and gingivitis.

The trial court certified a class of "all persons who purchased Listerine, in California, from June 2004 through January 7, 2005." In our previous decision in this matter, filed July 11, 2006, we granted Pfizer's petition for writ of mandate, concluding the trial court's ruling, which certified a class consisting of all persons who purchased Listerine in California during a six-month period, was overbroad.

The Supreme Court granted review. On August 19, 2009, the Supreme Court transferred the matter back to this court with directions that we vacate our decision and reconsider the matter in light of In re Tobacco II Cases (2009) 46 Cal.4th 298 [93 Cal.Rptr.3d 559, 207 P.3d 20] (Tobacco II). Having done so, we conclude Tobacco II does not require a different disposition herein. We again conclude the class is overbroad and grant Pfizer's petition.

FACTUAL AND PROCEDURAL BACKGROUND

1. The proposed class action complaint.

On January 11, 2005, Galfano filed a consumer action against Pfizer in his individual capacity and on behalf of all others similarly situated, based upon Pfizer's alleged misrepresentations and failure to disclose material information in the marketing, labeling, advertising and sale of Listerine mouthwash. Galfano pled that Pfizer advertised and promoted Listerine in a misleading manner by indicating the use of Listerine can replace the use of dental floss in reducing plaque and gingivitis. The complaint asserted causes of action for breach of express warranty, false advertising under section 17500 and unlawful, unfair and fraudulent business practices under section 17200.²

With respect to the class action allegations, Galfano alleged he represented "[a]ll persons who purchased Listerine, in California, from approximately June of 2004 to the date of judgment in this action...."

2. Galfano's motion for class certification.

On September 9, 2005, Galfano filed a motion for class certification. Galfano sought to certify the following class: "All persons who purchased Listerine with labels that state `as effective as floss,' in California, from June 28, 2004 through January 7, 2005 (`the Class Period')."

In seeking class certification, Galfano contended the class is ascertainable, the class is so numerous as to render joinder impracticable, an overwhelming community of interests exists among the class, the class representative has claims typical of the class, and the named plaintiff and his counsel adequately represent the class.

3. Pfizer's opposition to class certification.

Pfizer opposed class certification, arguing the case is replete with factual issues that only can be determined upon individual inquiry of each class member, and which individual inquiries predominate over any common issues. Pfizer enumerated those issues as follows: whether each class member saw or read a label; if so, which of the labels was seen or read; whether the consumer was deceived or misled by, or relied on, the label; if so, whether that was part of the bargain and caused the consumer to buy Listerine; if so, whether the consumer suffered injury in fact and lost money or property as a result of the alleged deception or reliance; and if so, the amount of damages or restitution, given that prices vary and most consumers will not have records of the price(s) they paid.

Pfizer reasoned a consumer may have purchased Listerine not because of any alleged deception "but because he was brand loyal, he wanted a breath freshener, his dentist recommended it, due to a price promotion, or because the consumer read the label's admonition to `floss daily' or `not a replacement for floss' and did not take away any alleged deceptive message, each of which is an individual issue that cannot be resolved on a class-wide basis."

4. Trial court's ruling.

After hearing the matter, the trial court issued an order on November 22, 2005, certifying a broad class, on an opt-out basis, consisting "of all persons who purchased Listerine, in California, from June 2004 through January 7, 2005."

In its written ruling, the trial court noted "[w]hile Proposition 64 amended [section] 17204's standing requirements to prosecute UCL claims (by mandating that a private party suffer an `injury in fact' and lose money or property as a result of the practice), whether the standing requirements for class members also changed under the UCL is an open issue." (Italics added.)

The trial court reserved jurisdiction to modify the class definition, decertify the class, or replace Galfano with a new class representative. In certifying the class, the trial court also severed the breach of warranty claim, pending determination of the viability of the UCL claims in subsequent phases of the proceedings.

The trial court also expressed numerous reservations concerning the remedies available to the class. Specifically, "upon proof of false or misleading advertising, or of a fraudulent or unfair practice, injunctive relief may be available. However, any restitutionary relief may be problematic. Insofar as the advertising and labeling is no longer in use, injunctive relief may not be appropriate. With respect to restitutionary relief, the requirements of `injury in fact' or `lost money or property as a result' of the conduct of Defendant Pfizer, as imposed by Proposition 64, may preclude recovery on a class basis. Similarly, proof of the claim for restitutionary disgorgement appears problematic, to the extent there must be some correlation between the amount of restitutionary relief and conduct justifying recovery. The Court further has reservations with respect to the remedies on Plaintiff's breach of warranty claim, as the measure of damages is defined under Commercial Code § 2714(2)."

Despite its stated reservations, the trial court certified the class in accordance with Galfano's broad definition.

5. Pfizer's writ petition; our previous decision in this matter.

On December 29, 2005, Pfizer filed the instant petition for writ of mandate, seeking vacation of the trial court's order and entry of a new order denying class certification.

This court issued an order to show cause.³

In an opinion filed July 11, 2006, we addressed, inter alia, whether each member of the putative class asserting a claim under the UCL or the FAL must, in the language of Proposition 64, have suffered injury in fact and lost money or property as a result of such violation, or whether this standing requirement is only applicable to the class representative or named plaintiff.

We concluded: "Proposition 64 requires private representative actions to satisfy the procedural requirements applicable to class action lawsuits. (Ballot Pamp., General Elec. (Nov. 2, 2004) Prop. 64, Official Title & Summary, p. 38.) ... [I]n order to meet the `community of interest' requirement of Code of Civil Procedure section 382, which requires, inter alia, the class representative to have claims typical of the class, it is insufficient if the class representative alone suffered injury in fact and lost money or property as a result of the unfair competition or false advertising. (§§ 17204, 17535.) The class members being represented by the named plaintiff likewise must have suffered injury in fact and lost money or property as a result of such violation."

We further concluded "that unless an action under the UCL or the FAL is brought by the Attorney General or local public prosecutors, the mere likelihood of harm to members of the public is no longer sufficient for standing to sue. Persons who have not suffered any injury in fact and who have not lost money or property as a result of an alleged fraudulent business practice cannot state a cause of action merely based on the `likelihood' that members of the public will be deceived. (§§ 17204, 17535.)"

Further, "inherent in Proposition 64's requirement that a plaintiff suffered `injury in fact ... as a result of' the fraudulent business practice or false advertising (§§ 17204, 17535, italics added) is that a plaintiff actually relied on the false or misleading misrepresentation or advertisement in entering into the transaction in issue."

We concluded the trial court's ruling, which certified a class consisting of all persons who purchased Listerine in California during a six-month period, was overbroad. We granted the relief requested.

6. Subsequent proceedings.

On November 1, 2006, the Supreme Court granted review in this matter and ordered briefing deferred pending its...