SEVIDAL v. TARGET CORP

For similar reasons, the court found that the proposed class was overbroad because it "includes every person who purchased an imported item during the time it was described as `Made in the USA — even if that person never saw the `Made in the USA description. While Target has no information about whether any specific customer viewed the `Additional Info' tab that states whether the item is `Made in the USA' or `Imported'. . ., Target's statistical research shows the vast majority of Target.com customers do not view the `Additional Info' page at all when making a purchase. . . ."

Sevidal appeals.

Code of Civil Procedure section 382 authorizes the maintenance of a class action "when 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." In moving to certify a class, a plaintiff has the burden of showing the existence of an ascertainable class and a well-defined community of interest. ( Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435 [ 97 Cal.Rptr.2d 179, 2 P.3d 27].) "The community of interest requirement embodies 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." ( Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470 [ 174 Cal.Rptr. 515, 629 P.2d 23]; see Massachusetts Mutual Life Ins. Co. v. Superior Court (2002) 97 Cal.App.4th 1282, 1287 [ 119 Cal.Rptr.2d 190].)

In ruling on a class certification motion, "the court should not make any determination of the merits or validity of the claim. [Citation.] But when the merits of the claim are enmeshed with class action requirements, the trial court must consider evidence bearing on the factual elements necessary to determine whether to certify the class. `When the trial court determines the propriety of class action treatment, "the issue of community of interest is determined on the merits and the plaintiff must establish the community as a matter of fact." [Citation.]'" ( Bartold v. Glendale Federal Bank (2000) 81 Cal.App.4th 816, 829 [ 97 Cal.Rptr.2d 226].)

If a party's class certification motion depends on an evaluation of disputed factual evidence, we review the court's factual determinations under a substantial evidence standard. ( See Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 328 [ 17 Cal.Rptr.3d 906, 96 P.3d 194]; Massachusetts Mutual Life Ins. Co. v. Superior Court, supra, 97 Cal.App.4th at pp. 1287-1288.) We do not reweigh the evidence and must draw all reasonable inferences supporting the court's order. ( See Cam v. Proctor Gamble Co. (1993) 18 Cal.App.4th 644, 655, fn. 6 [ 22 Cal.Rptr.2d 419].) Moreover, "`[b]ecause trial courts are ideally situated to evaluate the efficiencies and practicalities of permitting group action, they are afforded great discretion'" in evaluating the relevant factors and in ruling on a class certification motion. ( Tobacco II, supra, 46 Cal.4th at p. 311.) A "`trial court ruling supported by substantial evidence generally will not be disturbed "unless (1) improper criteria were used [citation]; or (2) erroneous legal assumptions were made [citation]."`" ( Ibid.) "`Any valid pertinent reason stated will be sufficient to uphold the order.'" ( Linder v. Thrifty Oil Co., supra, 23 Cal.4th at p. 436.)

In analyzing the trial court's class action ruling, we examine each alleged cause of action to determine whether it is appropriate for class treatment. With respect to the UCL and FAL claims, we are mindful that the California Supreme Court has specifically approved the use of the class action procedure to bring these claims if the statutory class action elements are satisfied. ( Tobacco II, supra, 46 Cal.4th at pp. 312-313.) "[T]he UCL class action is a procedural device that enforces substantive law by aggregating many individual claims into a single claim, in compliance with Code of Civil Procedure section 382, to achieve the remedial goals [of the UCL consumer protection statutory scheme]." ( Id. at p. 313.)

For the reasons explained below, we conclude the court did not abuse its discretion in concluding that the class was not ascertainable and was overbroad. Therefore, the court properly declined to certify the class.

A class representative has the burden to define an ascertainable class. ( Tobacco II, supra, 46 Cal.4th at p. 318; Linder v. Thrifty Oil Co., supra, 23 Cal.4th at p. 435; Global Minerals Metals Corp. v. Superior Court (2003) 113 Cal.App.4th 836, 849 [ 7 Cal.Rptr.3d 28] ( Global Minerals.).) Although the representative is not required to identify individual class members ( Stephens v. Montgomery Ward (1987) 193 Cal.App.3d 411, 419 [ 238 Cal.Rptr. 602]), he or she must describe the proposed class by specific and objective criteria. ( Global Minerals, supra, 113 Cal.App.4th at p. 858.) Ascertainability is achieved "`by defining the class in terms of objective characteristics and common transactional facts making the ultimate identification of class members possible. . . . `" ( Bomersheim v. los Angeles Gay Lesbian Center (2010) 184 Cal.App.4th 1471, 1483 [ 109 Cal.Rptr.3d 832]; see Hicks v. Kaufman Broad Home Corp. (2001) 89 Cal.App.4th 908, 915 [ 107 Cal.Rptr.2d 761].) Thus, "` "`[c]lass members are "ascertainable" where they may be readily identified without unreasonable expense or time by reference to official [or business] records.' `" ( Bomersheim, supra, 184 Cal.App.4th at p. 1480; see Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, 1206 [ 76 Cal.Rptr.3d 804]; Aguiar v. Cintas Corp. No. 2 (2006) 144 Cal.App.4th 121, 135 [ 50 Cal.Rptr.3d 135] ( Aguiar).)

"`Ascertainability . . . goes to the heart of the question of class certification,'" and "`requires a class definition that is "precise, objective and presently ascertainable." . . .'" ( Global Minerals, supra, 113 Cal.App.4th at p. 858.) The purpose of the ascertainability requirement is to ensure it is possible "`to give adequate notice to class members'" and "`to determine after the litigation has concluded who is barred from relitigating.'" ( Ibid.) The ascertainability requirement is satisfied if "the potential class members may be identified without unreasonable expense or time and given notice of the litigation, and the proposed class definition offers an objective means of identifying those persons who will be bound by the results of the litigation" ( Medrazo v. Honda of North Hollywood (2008) 166 Cal.App.4th 89, 101 [ 82 Cal.Rptr.3d 1].)

In this case, the court made a factual finding that the class members could not be "readily identified" because Target did not maintain, or have access to, records identifying the individuals who purchased a product with an erroneous country-of-origin designation. Substantial evidence supports this conclusion.

Target presented evidence that it 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. This evidence showed the computer bug causing the improper designation would not consistently misidentify the product origin and the computer bug sometimes affected the same item more than once. As a result, some items could have alternated between being correctly designated as "Imported" and erroneously designated as "Made in US" on the Web site at multiple times on various dates. Thus, without knowing the exact dates and times that a particular item had a United States country-of-origin designation on the "Additional Info" page, Target could not identify those customers who purchased an imported item when it was incorrectly labeled on the Web site.

Challenging this conclusion, Sevidal contends his proposed class is ascertainable because "Target has already identified specific products which fall within this definition. . . . [Thus], ascertaining the members that fit within the class definition is merely a matter of identifying the consumers who purchased those products." In support, Sevidal cites the portion of his memorandum of points and authorities submitted in the court below, in which he discussed the spreadsheets produced by Target during discovery and asserted that these documents show approximately 35,000 items were wrongly designated as "`Made in the USA'" on its Web site.

This evidence does not support Sevidal's argument. As the trial court found, Target's spreadsheets did not reflect only the items which were misidentified or the dates on which a misidentification occurred: "Contrary to [Sevidal's] statement, 35,000 items were not misidentified. That number refers to all items that Target has been able to determine were ever described as `Made in the USA' on its website." Moreover, the fact that certain products were misidentified does not provide a basis to determine who purchased those products. The court made a factual finding that Target could not make these identifications, and this finding was supported by the record.

Sevidal argues that "Target's own records will likely reveal the identity of class members" because "Target must have collected electronic billing information (such as credit card information) and shipping information (including names and addresses) from [its online] customers." However, the fact that Target may be able to identify consumers who purchased goods online would not provide the necessary information to determine the identity of the putative class members, i.e., those California consumers who purchased goods online that were misidentified at the time of the purchase.

Sevidal alternatively argues that his proposed class "is specific enough such that purchasers could identify themselves." We agree that a class is ascertainable for purposes of class certification "if it identifies a group of unnamed plaintiffs by describing a set of common characteristics sufficient to allow a member of that group to identify himself or herself as having a right to recover based on the description." ( Bartold v. Glendale Federal Bank, supra, 81 Cal.App.4th at p. 828; see Ghazaryan v. Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524, 1533 [ 87 Cal.Rptr.3d 518]; Harper v. 24 Hour Fitness, Inc. (2008) 167 Cal.App.4th 966, 977 [ 84 Cal.Rptr.3d 532]; Medrazo v. Honda of North Hollywood, supra, 166 Cal.App.4th at p. 101.)

However, there are no facts in the record showing Sevidal could meet this standard with respect to his proposed class. In the proceedings below, Sevidal made clear that only those who purchased an item when the country of origin was misidentified are part of the proposed class. But he also defined the proposed class to include consumers who purchased an item from Target.com without selecting the "`Additional Info'" icon, and thus who were never exposed to the country-of-origin information. These consumers would, by definition, have no way of knowing whether he or she purchased an item when it was misidentified, and thus would have no way of knowing whether he or she is a member of the class. And these individuals (those who would have no way of knowing he or she was a class member) represent a significant portion of the overall proposed class. Target's statistical evidence shows that approximately 80 percent of the proposed class falls within this category — individuals who purchased an item without viewing the country-of-origin information.

In this regard, the fact that Target can identify some consumers (such as Sevidal) who purchased goods when the goods were misidentified, does not mean the class as a whole was ascertainable. Courts have recognized that "class certification can be denied for lack of ascertainability when the proposed definition is overbroad and the plaintiff offers no means by which only those class members who have claims can be identified from those who should not be included in the class." ( Ghazaryan v. Diva Limousine, Ltd., supra, 169 Cal.App.4th at p. 1533, fn. 8.) Although class certification should not be denied on overbreadth grounds when the class definition is only slightly overinclusive ( ibid.; see Aguiar, supra, 144 Cal.App.4th at p. 136), in this case the overbreadth is significant. The unrefuted evidence showed that approximately 80 percent of the online purchasers did not select the "`Additional Info'" icon and were never exposed to the alleged misrepresentation.

Sevidal additionally contends the court's ascertainability conclusion with respect to his UCL claim is inconsistent with Tobacco II's holding that relief under the UCL is available to absent class members without individualized proof of reliance or injury. ( Tobacco II, supra, 46 Cal.4th at p. 320.) However, the trial court's conclusion that Sevidal did not identify an ascertainable class was not based on the reliance issue. At the hearing on the motion, the court agreed with Sevidal that, after Tobacco II, a class may be certified without a showing that the unnamed class members individually relied on the misrepresentations. The court instead based its ruling on the manner in which Sevidal chose to broadly define the proposed class, the specific facts regarding how a product's country of origin was manifested on Target's Web site, and the absence of any records or other objective criteria to define and limit the class. These conclusions are fully consistent with Tobacco II's holding that UCL claims brought as class actions remain subject to the statutory class certification rules, including the requirement that the plaintiff show an ascertainable class. ( Tobacco II, supra, 46 Cal.4th at pp. 313, 318.)

We also reject Sevidal's suggestion that Target's failure to keep records of the country-of-origin information eliminates his burden to establish an ascertainable class. In support of this argument, Sevidal cites Lee v. Dynamex, Inc. (2008) 166 Cal.App.4th 1325 [ 83 Cal.Rptr.3d 241] ( Lee) and Aguiar, supra, 144 Cal.App.4th 121, each of which was brought by the defendant's employees/independent contractors. These decisions are inapposite.

In Lee, the reviewing court found "the basic parameters" of the proposed class "can be readily ascertained through company records," and that subclasses could be used to identify factual differences among the members of the class or certain class members could be eliminated at a later time. (Lee, supra, 166 Cal.App.4th at p. 1334.) In Aguiar, the court found that the problem of identifying all class members could be resolved through payroll records and emphasized that because the defendant had a legal obligation to maintain proper records, the failure to do so would not preclude certification, particularly where it was possible for each class member to identify himself or herself as a member of the class. ( Aguiar, supra, 144 Cal.App.4th at pp. 134-136.) The Aguiar court also stated that the few employees who were not part of the class definition could be eliminated from the class later in the litigation. ( Id. at p. 136.)

This case is different. Unlike the defendant in Aguiar, Target had no contractual or statutory duty to maintain records pertaining to a consumer's selection of the "`Additional Info'" icon. And unlike Aguiar and Lee, the problem of identifying the class members was not merely a matter of creating subclasses or later eliminating a small portion of the class members.

In his reply brief, Sevidal makes several new arguments challenging the court's factual conclusion that Target does not have access to records identifying class members. Arguments made for the first time in a reply brief need not be considered. ( Cold Creek Compost, Inc. v. State Farm Fire Casualty Co. (2007) 156 Cal.App.4th 1469, 1486 [ 68 Cal.Rptr.3d 216].) Moreover, in these arguments, Sevidal is essentially asking us to reweigh the facts pertaining to the trial court's factual conclusion that these records do not exist, or they would be unreasonably burdensome and expensive to compile. However, we are required to affirm the court's factual conclusions if there is evidence to support the determinations. Target's evidence supports the trial court's conclusions.

The court did not abuse its discretion in concluding that Sevidal did not meet his burden to show the proposed class was ascertainable.

Although the court's ruling may be upheld based solely on the court's finding that Sevidal failed to propose an ascertainable class, we additionally conclude the court's order can be affirmed based on the evidence showing the proposed class was overbroad because a substantial portion of the class would have no right to recover on the asserted legal claims.

In his complaint, Sevidal alleged that Target's country-of-origin misrepresentations violated the UCL and FAL. The UCL prohibits unfair competition, which is defined as "any unlawful, unfair or fraudulent business act or practice. . . ." (§ 17200.) Sevidal claimed Target's conduct constituted an unlawful and fraudulent business practice. The "unlawful act" allegation was based on section 17533.7, which prohibits a seller from offering a product that states it is made in the United States if it was manufactured or produced outside of the country. The FAL similarly prohibits misleading or deceptive advertising. (§ 17500.) Sevidal alleged Target's conduct violated the FAL because the "`Made in US'" representation was misleading and deceptive.

Sevidal sought primarily monetary relief on behalf of all class members under the UCL and FAL. Although a party is not entitled to damages under these statutes, a court has the authority to award monetary relief in the form of restitution "as may be necessary to restore to any person in interest any money or property, real or personal, which may have been acquired by means of such unfair competition." (§ 17203; see § 17535.)

Historically, the UCL and FAL authorized relief notwithstanding any lack of proof of injury or damages. (See Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1359 [ 108 Cal.Rptr.3d 682].) The statutes "only required a showing that ` "members of the public [were] likely to be deceived.". . . ` . . . Allegations of actual deception, reasonable reliance and damage were unnecessary." ( Pfizer Inc. v. Superior Court (2010) 182 Cal.App.4th 622, 630 [ 105 Cal.Rptr.3d 795], citations omitted ( Pfizer); see Tobacco II, supra, 46 Cal.4th at pp. 312, 320.) However, in November 2004, the voters approved Proposition 64, which provided that "`a private person has standing to sue only if he or she "has suffered injury in fact and has lost money or property as a result of such unfair competition." [Citations.]' [Citation.]" ( Tobacco II, supra, 46 Cal.4th at p. 314.)

In Tobacco II, the California Supreme Court held that this new standing requirement applied only to the class representatives, and not to absent class members. ( Tobacco II, supra, 46 Cal.4th at p. 306.) In so concluding, the court emphasized the language in section 17203 that parties are entitled to restitution "`to restore to any person in interest any money or property, real or personal, which may have been acquired' (italics added) by means of the unfair practice. . . ." ( Tobacco II, at p. 320.) The court stated that "to hold that the absent class members on whose behalf a private UCL action is prosecuted must show on an individual basis that they have `lost money or property as a result of the unfair competition' . . . would conflict with [this] language in section 17203 authorizing broader relief — the `may have been acquired' language — and implicitly overrule a fundamental holding in our previous decisions. . . . Had this been the intention of the drafters of Proposition 64 — to limit the availability of class actions under the UCL only to those absent class members who met Proposition 64's standing requirements — presumably they would have amended section 17203 to reflect this intention. Plainly they did not." ( Ibid., citation omitted.)

But the Tobacco II court did not state or suggest there are no substantive limits on absent class members seeking restitution when a defendant has engaged in an alleged unlawful or unfair business practice. Instead, the court recognized that under the UCL's statutory language, a person is entitled to restitution for money or property "which may have been acquired" by means of the unfair or unlawful practice. (§ 17203, italics added; see Tobacco II, supra, 46 Cal.4th at p. 320.) Although this standard focuses on the defendant's conduct and is substantially less stringent than a reliance or "but for" causation test, it is not meaningless. To conclude otherwise would violate the statutory interpretation principle that every word in a statute must be given operative effect. Even after the Tobacco II decision, the UCL and FAL still require some connection between the defendant's alleged improper conduct and the unnamed class members who seek restitutionary relief.

A Court of Appeal recently interpreted Tobacco II in this precise manner. ( Pfizer, supra, 182 Cal.App.4th 622.) In that case, the plaintiff alleged Pfizer advertised and promoted its mouthwash product, Listerine, in a misleading manner by indicating that Listerine can replace dental floss in reducing plaque and gingivitis. ( Id. at p. 625.) The plaintiff brought a class action and asserted numerous claims, including violations of the UCL and FAL. ( 182 Cal.App.4th at p. 625.) The trial court certified a class of "`all persons who purchased Listerine, in California, from June 2004 through January 7, 2005.'" ( Id. at p. 626.) After the Court of Appeal granted Pfizer's writ petition, the California Supreme Court granted review in the case, and then, after it decided Tobacco II, the high court transferred the matter back to the appellate court with directions to reconsider the matter in light of Tobacco II. (Pfizer, supra, at p. 628.)

Upon reconsideration, the Pfizer court again concluded the class was overbroad and granted the petition. ( Pfizer, supra, 182 Cal.App.4th at p. 625.) In so concluding, the court noted that Tobacco II had unequivocally reaffirmed that for absent class members "`relief under the UCL is available without individualized proof of deception, reliance and injury.'" ( Pfizer, at p. 631, quoting Tobacco II, supra, 46 Cal.4th at p. 320.) But the Pfizer court then stated: " Be that as it may, one who was not exposed to the alleged misrepresentations and therefore could not possibly have lost money or property as a result of the unfair competition is not entitled to restitution. [¶] . . . [T]he class certified by the trial court, i.e., all purchasers of Listerine in California during a six-month period, is grossly overbroad because many class members, if not most, clearly are not entitled to restitutionary disgorgement. The record reflects that of 34 different Listerine mouthwash bottles, 19 never included any label that made any statement comparing Listerine mouthwash to floss. Further, even as to those . . ., not every bottle shipped . . . bore such a label. . . . Thus, perhaps the majority of class members who purchased Listerine during the pertinent six-month period did so not because of any exposure to Pfizer's allegedly deceptive conduct. . . . [¶] . . . Tobacco II allows a class representative who actually relied on the defendants' misleading advertising campaign to represent other class members who may have lost money by means of the unfair practice. Tobacco II does not stand for the proposition that a consumer who was never exposed to an alleged false or misleading advertising or promotional campaign is entitled to restitution." ( Pfizer, at pp. 631-632, italics added.)

The Pfizer court thus held that the certified class, consisting of all purchasers of Listerine in California over a six-month period, was overbroad because the trial court improperly presumed the existence of a classwide injury. ( Pfizer, supra, 182 Cal.App.4th at pp. 632-633.) The court reasoned that as to the "large numbers of class members [who] were never exposed to the `as effective as floss' labels or television commercials[,] . . . there is absolutely no likelihood they were deceived by the alleged false or misleading advertising or promotional campaign. Such persons cannot meet the standard of section 17203 of having money restored to them because it `may have been acquired by means of the unfair practice. In the language of section 17203, with respect to perhaps a majority of class members, there is no doubt Pfizer did not obtain any money by means of the alleged UCL violation." ( Ibid.) The California Supreme Court later denied the plaintiffs petition for review.

We agree with the Pfizer court's reasoning and conclude it applies with equal force in this case. As in Pfizer, a majority of the class members were " never exposed" to the alleged misrepresentation. ( Pfizer, supra, 182 Cal.App.4th at p. 632.) Thus, as in Pfizer, "there is absolutely no likelihood they were deceived by the alleged false or misleading advertising. . . . Such persons cannot meet the standard of section 17203 of having money restored to them because it `may have been acquired by means of the [fraudulent or] unfair practice. In the language of section 17203, with respect to . . . a majority of [the] class members, there is no doubt [Target] did not obtain any money by means of the alleged UCL violation." ( Id. at pp. 632-633.)

In this regard, this case is materially different from the facts in Tobacco II and the two subsequent Court of Appeal decisions upon which Sevidal relies. ( See Tobacco II, supra, 46 Cal.4th 298; Weinstat v. Dentsply Internal, Inc. (2010) 180 Cal.App.4th 1213 [ 103 Cal.Rptr.3d 614] ( Weinstat); Steroid Hormone Product Cases (2010) 181 Cal.App.4th 145 [ 104 Cal.Rptr.3d 329] ( Steroid Hormone).)

In Tobacco II, the plaintiffs alleged the defendants violated the UCL and FAL by conducting a decades-long campaign of deceptive advertising and misleading statements about the addictive nature of nicotine, and the proposed class "consisted] of members of the public who were exposed to" these advertisements and statements and were consumers of defendants' products. ( Tobacco II, supra, 46 Cal.4th at p. 324, italics added.) Thus, unlike here, the proposed class included only those who were allegedly exposed to the alleged fraud.

In Weinstat, the plaintiffs alleged each product sold by the defendant contained written directions misrepresenting the safe use of the product. ( Weinstat, supra, 180 Cal.App.4th at pp. 1219-1220.) Thus, each consumer of the product was exposed to the misrepresentation. Moreover, in reversing the denial of class certification on the UCL and breach of warranty claims, the Weinstat court focused primarily on the reliance issue, and did not specifically consider section 17203's "may have been acquired" statutory language. ( See Weinstat, supra, at pp. 1222-1235.) A case is not authority for a proposition not considered. ( Johnson v. Bradley (1992) 4 Cal.4th 389, 415 [ 14 Cal.Rptr.2d 470, 841 P.2d 990].)

In Steroid Hormone, supra, 181 Cal.App.4th 145, the proposed UCL class consisted of individuals who allegedly purchased a nutritional supplement containing a controlled substance and none of these class members had been informed the product contained this substance. ( 181 Cal.App.4th at p. 150.) Ruling before Tobacco II was filed, the trial court refused to certify the class because, even though the defendant may have been legally required to disclose this information, individual questions predominated on the reliance and injury elements. ( Steroid Hormone, at p. 155.) The reviewing court reversed, noting that, under Tobacco II, there is no injury or reliance requirement for absent class members. ( Steroid Hormone, at p. 154.) The court further held a common legal issue among class members was the amount of money the defendant "`may have . . . acquired by means of" those illegal sales. ( Id. at pp. 154-155.)

In this case, there was no similar allegation that Target was legally required to inform consumers of the product origin information. Although Sevidal alleged a false "`Made in U.S.A.'" representation violates a statute (§ 17533.7; see fn. 6, ante), he has not cited to any legal requirement that a retailer must inform consumers of the country-of-origin information before they purchase an item. Thus, unlike Steroid Hormone, the fact that the consumers did not learn of this information was not a basis to conclude Target was required to disgorge profits from the sales to every consumer, regardless whether the consumer was ever exposed to the alleged misrepresentation.

Sevidal's reliance on the Tobacco II court's discussion of Collins v. Safeway Stores, Inc. (1986) 187 Cal.App.3d 62 [ 231 Cal.Rptr. 638] is also misplaced. In Collins, the class representatives bought eggs produced by the defendant egg producer and sold by the defendant supermarket chain. Some of the eggs had been contaminated by a pesticide. ( Id. at pp. 65-66.) The contaminated eggs were mixed in with uncontaminated eggs and once the contamination was known, all cartons from the producer were pulled from the supermarket chain's shelves and destroyed. ( Ibid.) The trial court declined to certify a class of individuals who purchased eggs from the supermarket during a five-month period and were not injured, finding the class was not ascertainable because there was no way of knowing which eggs were defective and thus whether these consumers purchased a defective product. ( Id. at p. 67.) The appellate court agreed with this reasoning and affirmed. ( Id. at pp. 69-70.)

The Tobacco II court found the Court of Appeal's holding in Collins to be "questionable" on the issue of the class members' right to recover on the UCL claim. ( Tobacco II, supra, 46 Cal.4th at p. 322.) The Tobacco II court stated that "[i]t is clear in Collins that some of the purchasers in question may have purchased contaminated eggs — therefore, the `money or property' of the entire class of purchasers `may have been acquired by means' of an unfair practice (§ 17203), thus entitling them to restitution for their loss." ( Id. at pp. 322-323.)

This discussion does not undermine our conclusion that Sevidal's proposed class is overbroad because most class members never selected the "`Additional Info'" icon. In Collins, the unfair and unlawful act did not involve an alleged fraudulent representation; rather it concerned primarily an illegal and improper business practice of selling eggs that had been contaminated with pesticide, and then mixing those eggs with uncontaminated eggs. Under these circumstances and in the context of a UCL claim, the Tobacco II court suggested it did not matter whether each class member had bought eggs that were contaminated or incurred actual injuries resulting from the wrongful conduct (contaminating eggs with harmful pesticide); it was sufficient for class certification purposes that the defendant had acquired money (the amounts paid for all of the eggs) by means of the unlawful practice (using harmful pesticide). By contrast in this case, there is no basis for concluding that Target improperly acquired any money or property from consumers who purchased goods without having any exposure to misinformation concerning the country of origin of the Target products. Although Sevidal alleges Target committed an "unlawful" act, the essence of this allegation is based on an alleged false misrepresentation to which the majority of class members were never exposed.

On appeal Sevidal also contends the court erred in denying class certification on his fraudulent concealment and CLRA claims, but he does not state the factual basis for this assertion or develop any legal argument on these points. Thus, he has waived any challenge with respect to these claims. (See Associated Builders Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2 [ 87 Cal.Rptr.2d 654, 981 P.2d 499].)

Even if we were to reach the issues on the merits, we would find no error.

Reliance is an essential element of a fraudulent concealment claim. ( See County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 329 [ 40 Cal.Rptr.3d 313].) Thus, to recover, each unnamed class member would be required to prove individual reliance on Target's false country-of-origin designation. The court thus did not abuse its discretion in concluding the class action procedure was unsuitable on the fraud claim because Target's liability to each class member would have to be individually determined, and most class members would have no right to recover because they did not view the representation and thus could not have relied on the misrepresentations. To the extent reliance may be presumed if the representations would be material to a reasonable person (see Tobacco II, supra, 46 Cal.4th at p. 326), Sevidal presented no evidence or argument to support this claim.

We likewise conclude the court did not err in finding the class was overbroad with respect to Sevidal's CLRA claim. The CLRA makes unlawful various "unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer." (Civ. Code, § 1770, subd. (a).) However, it is well settled that "to obtain relief under the CLRA, both the named plaintiff and unnamed class members must have suffered some damage caused by a practice deemed unlawful under Civil Code section 1770." ( Steroid Hormone, supra, 181 Cal.App.4th at p. 156, italics added.) Because the majority of unnamed class members did not view the alleged misrepresentation, they could not satisfy this causation element of the CLRA claim.

Judgment affirmed. Appellant to pay respondent's costs on appeal.

Huffman, Acting P. J., and Nares, J., concurred.