In Wiener v. Dannon Co., ___ F.R.D. ___, 2009 WL 383650 (C.D. Cal. Jan. 30, 2009), the court (Judge S. James Otero) held that common questions predominated on plaintiffs' UCL and CLRA claims, which were predicated on alleged misrepresentations about the defendants' products (Activia, Activia Light, and DanActive yogurt). The key question was whether reliance (assuming reliance is an element of these claims) could be established through common proof. The court determined that it could:
It is undisputed that reliance is an element of Plaintiff's causes of action based on breach of warranty, see Williams v. Beechnut Nutrition Corp., 229 Cal.Rptr. 605, 608 (Cal.Ct.App.1986), and the CLRA, see True v. Am. Honda Motor Co., Inc., 520 F.Supp.2d 1175, 1182 (C.D.Cal.2007). As both parties recognize, the issue of whether reliance is an element of Plaintiff's cause of action under the UCL, however, is currently pending before the California Supreme Court, as there is a split of authority on the issue. See Cattie v. Wal-Mart Stores, Inc., 504 F.Supp.2d 939, 947 (S.D.Cal.2007) (noting split of authority but finding that, with recent Proposition 64 reforms, the UCL now requires reliance); Anunziato v. eMachines, Inc., 402 F.Supp.2d 1133, 1137-39 (C.D.Cal.2005) (declining to read a reliance requirement into the UCL); In re Tobacco II Cases, 146 P.3d 1250 (2006) (granting petition for review on issue of whether UCL requires reliance); Def.'s Opp'n n. 5; Pl.'s Reply n. 7. “Nevertheless, most courts that have confronted this issue since the passage of Proposition 64,” a recent amendment to the UCL, have concluded that the UCL now requires reliance. True, 520 F.Supp.2d at 1182 (internal citations omitted). Although the Court finds the majority view, which requires reliance, more persuasive, see id. at 1182; Cattie, 504 F.Supp.2d at 947-49, the Court need not determine the issue because even if reliance is required under the UCL, an inference of reliance for all class members applies to this case, making class treatment appropriate.
Courts have found that an inference of reliance may be appropriate for claims for violations of the UCL and the CLRA, see True, 520 F.Supp.2d at 1182, as well as for breach of express warranty, see Osborne, et al., 243 Cal.Rptr. at 823. An inference of reliance arises if material misrepresentations were “made to persons whose acts thereafter were consistent with reliance upon the representation.” Occidental Land, Inc. v. Superior Court, 556 P.2d 750, 754 (1976); Osborne, et al. v. Subaru of America, et al., 243 Cal.Rptr. 815, 823 (Cal.Ct.App.1988) (internal citations omitted). For a class action, an inference of reliance arises as to the entire class only if the material misrepresentations were made to all class members. See Vasquez v. Superior Court, 484 P.2d 964, 973 (1971) (“It is sufficient for our present purposes to hold that if the trial court finds material misrepresentations were made to the class members, at least an inference of reliance would arise as to the entire class.”); Osborne, et al., 243 Cal.Rptr. at 823 (internal citations omitted). In order for a misrepresentation of fact to be material, the misrepresentation must have “induced the plaintiff to alter his position to his detriment. Stated in terms of reliance, materiality means that without the misrepresentation, the plaintiff would not have acted as he did.” True, 520 F.Supp.2d at 1182 (quoting Caro v. Procter & Gamble Co., 22 Cal.Rptr.2d 419, 433 (1993)). The defendants may introduce evidence to rebut the inference of reliance. Vasquez, 484 P.2d at 973.
In this case, Plaintiff's CLRA, UCL, and breach of express warranty claims satisfy the requirements for an inference of reliance: material representations were made to all potential class members who then, with their purchase of one of the Products, acted in a manner “consistent with reliance upon the representation.” See Occidental Land, Inc., 556 P.2d at 754; Osborne, et al., 243 Cal.Rptr. at 823. Regardless of whether every class member was exposed to Dannon's television, print, and internet advertisements, the record clearly establishes that Dannon's alleged misrepresentations regarding the clinically proven health benefits of the Products are prominently displayed on all of the Products' packaging, a fact that Dannon has never contested. (See, e.g., First Am. Compl. ¶¶ 23-25, 38-39; Def. Dannon Company, Inc.'s Answer Patricia Wiener & Steven R. Berube's First Am. Putative Class Action Compl. ¶¶ 23-25, 38-39; Blood Decl., Ex. 6.) Because, by definition, every member of the class must have bought one of the Products and, thus, seen the packaging, Plaintiffs have succeeded in showing that the alleged misrepresentations were made to all class members. See Vasquez, 484 P.2d at 973; Osborne, et al., 243 Cal.Rptr. at 823. Furthermore, the Court finds that the misrepresentations at issue were material. The record clearly establishes that the characteristic that distinguishes the Products from others on the market is their respective alleged health benefit. (See, e.g., Pl's Mot. 2-11; Def.'s Opp'n 2-3; First Am. Compl. ¶¶ 23-45, 38-39; Blood Decl., Exs. 5-7; Freitas Decl. ¶¶ 3-4; Jove Decl. ¶¶ 2-6.) Dannon has not pointed to any meaningful difference in flavor, serving size, or the like that might influence consumers' purchases. Rather, Dannon's advertisements, promotions, and labels for the Products explicitly and continually emphasize only the health benefits of Bifidus Regularis in Activia and L. Casei Immunitas in DanActive. (See, e.g., Pl's Mot. 2-11; Def.'s Opp'n 2-3; First Am. Compl. ¶¶ 23-45, 38-39; Blood Decl., Exs. 5-7; Freitas Decl. ¶¶ 3-4; Jove Decl. ¶¶ 2-6.) The Court is aware that many factors influence all consumers' purchasing decisions, a point which Dannon emphasizes, yet given that the alleged misrepresentations are the distinguishing characteristic of the Products, the Court finds that these representations induced consumer purchases because without the alleged misrepresentations, there is no reason, even with sales, coupons, or other promotions, to suggest that purchasers would have selected the Products over other Dannon products or similar, generally less expensive, products by other brands. See True, 520 F.Supp.2d at 1182 (quoting Caro, 22 Cal.Rptr.2d at 433). Finally, “the purchases made by plaintiffs were acts consistent with their reliance on” Dannon's alleged misrepresentations regarding the health benefits of the Products. See Occidental Land, Inc., 556 P.2d at 754. Thus, the Court finds that the evidence presently before the Court allows for an inference of reliance in this case. Accordingly, reliance may be established on a common basis.
Id. at *8-*9. The court denied class certification with leave to substitute a new class representative who satisfied the adequacy requirement. Id. at *13.