Opinion
B227121
08-18-2011
STEVE GALFANO, Plaintiff and Appellant, v. PFIZER INC., Defendant and Respondent.
Westrup Klick, R. Duane Westrup, Christine C. Choi; and Allan A. Sigel for Plaintiff and Appellant. Kaye Scholer, Thomas A. Smart, Richard A. De Sevo, Aton Arbisser and Evan Anziska for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC327114)
APPEAL from an order of the Superior Court of Los Angeles County, Carl J. West, Judge. Reversed and remanded with directions.
Westrup Klick, R. Duane Westrup, Christine C. Choi; and Allan A. Sigel for Plaintiff and Appellant.
Kaye Scholer, Thomas A. Smart, Richard A. De Sevo, Aton Arbisser and Evan Anziska for Defendant and Respondent.
Plaintiff and appellant Steve Galfano (Galfano) appeals an order by the trial court refusing to entertain further class action certification proceedings in his lawsuit against defendant and respondent Pfizer Inc. (Pfizer).
An order preventing further proceedings as a class action is appealable. (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 699; Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 957, fn. 1; Alvarez v. May Dept. Stores Co. (2006) 143 Cal.App.4th 1223, 1228, fn. 2.)
We conclude the trial court erred in refusing to entertain further class certification proceedings. The order is reversed and the matter is remanded with directions.
FACTUAL AND PROCEDURAL BACKGROUND
1. Initial proceedings in the trial court.
On January 11, 2005, two months after the electorate approved Proposition 64, Galfano filed a consumer action against Pfizer in his individual capacity and on behalf of all others similarly situated. Galfano alleged 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 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.
On November 2, 2004, the electorate approved Proposition 64, which amended the standing requirements of the Unfair Competition Law (UCL) and the False Advertising Law (FAL). (Bus. & Prof. Code, §§ 17200 et seq., 17203, 17204, 17500 et seq., 17535; Pfizer Inc. v. Superior Court (2010) 182 Cal.App.4th 622, 625, fn. 2 (Pfizer II).)
All further statutory references are to the Business and Professions Code, unless otherwise specified.
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')."
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."
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.
2. Pfizer I.
On December 29, 2005, Pfizer filed a 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.
In our original decision in this matter, Pfizer Inc v. Superior Court (No. B188106, filed July 11, 2006, nonpub. opn.) (Pfizer I), we held the trial court erred in certifying a class of " 'all persons who purchased Listerine, in California, from June 2004 through January 7, 2005.' " (Pfizer I, slip opn., p. 19.) We further held "[o]ur ruling herein is without prejudice to Galfano's bringing a new motion for class certification, consistent with the principles set forth in this opinion." (Id. at p. 19, fn. 9, italics added.)
3. Pfizer II.
The California Supreme Court granted review in Pfizer I and subsequently 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 (Tobacco II).
Thereafter, in Pfizer II, supra, 182 Cal.App.4th 622, following an analysis of the impact of Tobacco II on the issues presented in Galfano's action, we concluded "Tobacco II does not require a different disposition"and "again conclud[ed] the class is overbroad and grant[ed] Pfizer's petition." (Pfizer II, supra, at p. 625, italics added.) The Supreme Court denied a petition for review in Pfizer II, and the remittitur issued on July 6, 2010.
4. Proceedings on remand to the trial court.
On July 14, 2010, the parties filed a joint status report in the trial court. Galfano requested that the trial court either certify a redefined narrower class, or that it permit him "to file a new motion for class certification."
On July 20, 2010, after reading the parties' joint status report, the trial court entered an order stating it "will not entertain further certification proceedings."
On August 5, 2010, the trial court issued another order declining "to entertain a further motion to certify the UCL or breach of warranty claims upon determining that such proceedings would be inconsistent with the directive of the Court of Appeal," and also "declin[ing] to entertain further certification proceedings on the fraud claim." With respect to the fraud claims, the trial court stated "on the evidentiary and appellate record in this case, any attempt to certify the common law fraud claim would be futile."
Galfano added new causes of action for negligent and intentional misrepresentation in his first amended complaint, filed January 5, 2006.
On August 26, 2010, Galfano filed notice of appeal from the August 5, 2010 order.
5. Denial of Pfizer's motion to dismiss the instant appeal.
On October 12, 2010, Pfizer filed a motion to dismiss the instant appeal for lack of jurisdiction on the grounds an order denying a motion for reconsideration is not appealable, and the denial of a successive motion to certify a class is not an appealable order.
In an order filed November 19, 2010, this court denied the motion to dismiss the appeal. The November 19, 2010 order states in pertinent part:
"[T]he dismissal motion lacks merit. [¶] In our original decision in this matter, Pfizer Inc v. Superior Court (No. B188106, filed July 11, 2006) (Pfizer I), we held the trial court erred in certifying a class of ' "all persons who purchased Listerine, in California, from June 2004 through January 7, 2005." ' (Pfizer I, slip opn., p. 19.) We further held '[o]ur ruling herein is without prejudice to Galfano's bringing a new motion for class certification, consistent with the principles set forth in this opinion.' (Id. at p. 19, fn. 9, italics added.)
"The California Supreme Court granted review and subsequently 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 (Tobacco II).
"Thereafter, in Pfizer Inc. v. Superior Court (2010) 182 Cal.App. 4th 622 (review den.) (Pfizer II), we concluded 'Tobacco II does not require a different disposition' and 'again conclud[ed] the class is overbroad and grant[ed] Pfizer's petition.' (Pfizer II, supra, at p. 625.) The remittitur issued on July 6, 2010.
"Thus, upon the resumption of proceedings at the trial court level, Galfano was entitled to bring a new motion for class certification, consistent with the principles set forth by this court. Consequently, a subsequent request by Galfano for class certification would not be a motion for reconsideration of an earlier order." (Italics added.)
Further, "[e]ven assuming Galfano should have appealed the July 20, 2010 order rather than the August 5, 2010 order, the August 26, 2010 notice of appeal may be deemed a timely appeal from the July 20, 2010 ruling wherein the trial court indicated it would not entertain any further class certification proceedings. Accordingly, respondent's motion to dismiss the appeal is denied."
CONTENTIONS
Galfano contends: he is entitled to bring a new motion for class certification, consistent with the principles set forth by this court; and he has the right to proceed with an initial class certification motion regarding his fraud cause of action.
DISCUSSION
1. Our decisions in Pfizer I and Pfizer II established Galfano's entitlement to bring a new class certification motion on remand.
The resolution of this appeal is controlled by some basic principles. "When there has been a decision upon appeal, the trial court is reinvested with jurisdiction of the cause, but only such jurisdiction as is defined by the terms of the remittitur. The trial court is empowered to act only in accordance with the direction of the reviewing court; action which does not conform to those directions is void." (Hampton v. Superior Court (1952) 38 Cal.2d 652, 655.)
Thus, once Pfizer I and Pfizer II became final, they became binding upon the parties and the trial court on remand.
To reiterate, in Pfizer I, we held the trial court erred in certifying a class of all persons who purchased Listerine in California from June 2004 through January 7, 2005, but we specified our ruling was "without prejudice to Galfano's bringing a new motion for class certification, consistent with the principles set forth in this opinion.' (Pfizer I, slip opn., p. 19, fn. 9, italics added.)
In Pfizer II, we held "Tobacco II does not require a different disposition" and "again conclud[ed] the class is overbroad and [again] grant[ed] Pfizer's petition." (Pfizer II, supra, at p. 625.) The remittitur issued on July 6, 2010.
Thus, upon the resumption of proceedings at the trial court level, Galfano was entitled to bring a new motion for class certification, consistent with the principles set forth by this court in Pfizer I and Pfizer II. The trial court's refusal on remand to entertain further certification proceedings is reversible error.
2. Pfizer's reliance on rule prohibiting successive motions for class certification is misplaced.
Stephen v. Enterprise Rent-a-Car (1991) 235 Cal.App.3d 806 (Stephen), held a party has no right to bring a renewed motion to certify a class after the trial court has denied the earlier motion and the time for appeal has passed. (Id. at p. 811.) There, the trial court entered an order denying the plaintiff's initial motion for class certification on the merits. (Id. at pp. 809-810.) The plaintiff did not appeal, and the order became final. (Id. at p. 810.) The plaintiff subsequently filed another motion for class certification based on asserted new facts relevant to the class issues. (Ibid.)The defendant opposed the motion as untimely and not based on new facts. (Ibid.) The trial court denied the motion as untimely. (Ibid.)
The plaintiff appealed, and the reviewing court affirmed the order. (Stephen, supra, 235 Cal.App.3d at p. 809.) The Stephen court reasoned the plaintiff's attempt to renew his class certification motion was "directly at odds" with California's rule providing that a denial of class certification is appealable as a final order. (Id. at p. 814.) The court explained: an order denying class certification is appealable because the order has the "death knell" effect of making further proceedings in the action impractical; a plaintiff who fails to appeal from such an order "loses forever" the right to attack it; and therefore a motion to recertify a class is tantamount to an improper and untimely challenge to a final order. (Id. at p. 811.) Stephen observed "[i]f the law allowed both those appeals and successive motions to certify, we could have endless appeals violating the state's policy against piecemeal appellate litigation." (Id. at p. 814.)
To similar effect is Safaie v. Jacuzzi Whirlpool Bath, Inc. (2011) 192 Cal.App.4th 1160. There, plaintiff appealed an order denying his motion to recertify a class of individuals who purchased whirlpool bathtubs from defendant Jacuzzi. The reviewing court upheld the order, stating "[t]he trial court's prior June 2007 ruling decertifying the class, affirmed on appeal in November 2008, barred Safaie from a second opportunity to seek class certification." (Id. at p. 1164.)
However, the general rule precluding successive motions for class certification has no application to this case. As noted, Galfano filed suit shortly after the electorate approved Proposition 64. At the time Galfano commenced this action, the state of the law with respect to Proposition 64 was highly unsettled. Therefore, our original disposition in Pfizer I, determining the class was overbroad, was "without prejudice to Galfano's bringing a new motion for class certification, consistent with the principles set forth in this opinion.' (Pfizer I, slip opn., p. 19, fn. 9, italics added.) Pfizer II reiterated our conclusion in Pfizer I. Accordingly, Galfano remains entitled to bring a new motion for class certification, in accordance with our earlier directives.
3. No merit to Pfizer's futility argument.
Pfizer seeks affirmance on the ground that any further class certification proceedings would be an exercise in futility, given the "undisputed evidentiary record." Pfizer contends, inter alia, Galfano would remain an inadequate representative and the proposed redefined class is not ascertainable.
It was Galfano's position the trial court should redefine the class as follows: "All persons, who at the time they were residents of California, purchased one or more bottles of Listerine mouthrinse with a red, yellow, and white label that stated: 'Now Clinically Proven As Effective As Floss Against Plaque and Gingivitis Between The Teeth.' Such bottles were sold between July 2004 and January 2005 on the following flavors and sizes of Listerine mouthrinse: 250 ml Original, 500 ml Original, 1 L Original, 1.5 L Original, 250 ml Cool Mint, 500 ml Cool Mint, 1 L Cool Mint, 1.5 L Cool Mint, 250 ml Fresh Burst, 500 ml Fresh Burst, 1 L Fresh Burst, and 1.5 L Fresh Burst."
At this juncture, Pfizer's arguments with respect to the merits of Galfano's yet to be filed motion for class certification are premature. Pfizer is free to make those arguments in its opposition to Galfano's renewed motion for class certification.
DISPOSITION
The order refusing to entertain further certification proceedings is reversed and the matter is remanded to the trial court with directions to entertain a new motion by Galfano for class certification on all causes of action pled in the first amended complaint. Galfano shall recover his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P.J. We concur:
CROSKEY, J.
KITCHING, J.