On October 29, 2010, the Fourth District (Division 1) upheld denial of certification of a “made in the USA” false advertising class in Sevidal v. Target Corp., __ Cal.App.4th __ (2010). In upholding the trial court’s order, the Court concluded that the element of ascertainability was lacking based on evidence that Target “was unable to determine from its computer records the identity of the individuals who purchased an item when its country of origin was improperly designated.” Slip Opinion, at 16-22. Further, the Court concluded that the class was overlybroad, as the evidence demonstrated that only a minority of consumers clicked the “additional info” icon containing the alleged offending statements on Target’s website, causing a substantial portion of the class to lack any right to recover on the asserted legal claims. See id., at 23-31.
On October 28, 2010, the Second District (Division 8) altered the status of its opinion in Hernandez v. Chipotle Mexican Grill, __ Cal.App.4th __ (2010) from unpublished to published. The opinion, which upheld a trial court’s denial of certification of meal and rest period claims, does not add much to the mix in terms of new law, and appears to simply mirror the issues presently before the California Supreme Court in Brinker. In fact, the Court ruled on the Brinker issue itself. This being the case, there was no basis for the status of this case being altered to published, and it is worth noting that Division 7, in an opinion going the opposite direction on the Brinker issue (previously discussed here), refused to publish its opinion despite publication requests. That issue aside, it appears that plaintiff counsel may have invited the Brinkeresque result, as plaintiff attempted to establish certification of an alleged barrier to breaks based solely on class member testimony and time records, as opposed to focusing on evidence of the defendant’s standardized company policies.