This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2008).
UNPUBLISHED OPINION
WRIGHT, Judge
Appellant challenges his convictions of two counts of first-degree burglary and one count of terroristic threats. Appellant argues that the district court erred by admitting hearsay evidence and that there is insufficient evidence to support his convictions. We affirm.
FACTS
In early 2008, appellant 29-year-old Trayon Berry was living on the west side of St. Paul. In an apartment across the street from Berry lived two women with whom Berry was acquainted, M.C. and N.M., and N.M.'s 13-year-old daughter, A.M. Berry visited their apartment three or four times, used their telephone, and loaned them money. At some point, Berry offered M.C. $200 if she would "hook him up with [A.M.]" and suggested the possibility of renting a room from M.C. and N.M., which they declined to do.
On May 29, 2008, Berry went to the women's residence to use their telephone. M.C, N.M., and A.M. were at home; A.M. was in her bedroom. N.M. permitted Berry to use the telephone in the kitchen and, as she had on occasion in the past, N.M. gave Berry milk and cookies. N.M. also agreed to Berry's request to use the bathroom. As Berry went down the hall toward the bathroom, N.M. heard him talking to A.M. in her bedroom. Because she did not want Berry to talk to A.M., N.M. told him to "get out of [her] home." While walking back toward the kitchen, Berry stopped and said that he wanted to meet A.M. and talk to her. N.M. responded that A.M. "wasn't going to be talking to anybody, that she was too young."
Berry then proceeded toward A.M.'s room. As N.M. stopped him, Berry grabbed her by the hair, which caused her glasses to fall off. He also shouted his telephone number to A.M. and told her that he wanted to meet her. While doing so, Berry referred to A.M. by her middle name, although neither M.C. nor N.M. knew how Berry had learned this personal information about A.M. When M.C. threatened to call the police, Berry left the apartment. M.C. followed him outside where Berry repeated his offer to pay M.C. if she would "hook[] him up with [A.M.]" When M.C. contacted the police to report the incident, she learned that Berry is a registered sex offender.
As a result of the police report regarding the May 29 incident, St. Paul Police Officer Sharon Ellison went to Berry's residence on June 4. It is the policy of the St. Paul Police Department to follow up whenever a registered sex offender is mentioned in a police report. Because Berry was not at home, Officer Ellison went to Berry's place of employment. Berry was not at work when Officer Ellison arrived, but Berry spoke with his manager on the telephone while the officer was still there. Officer Ellison spoke with Berry and advised him that she was checking on his registration paperwork.
Later that day, Berry returned to M.C.'s and N.M.'s apartment. Using the intercom system, Berry identified himself as Mando. N.M. admitted Berry to the building because she believed that he was her friend Armando. When N.M. opened the door to the apartment, Berry approached her and shouted, `What did you say to the police?' N.M. told Berry to leave, but he refused to do so. His shouting awakened M.C, who had been napping in another room. Despite having been told to leave, Berry went into M.C.'s bedroom and also asked her about her contact with the police. Fearing that Berry would strike them, both women denied contacting the police. But M.C. warned Berry of her intention to call the police and walked out of the apartment into the hallway to do so. Berry followed her. When they were outside, Berry told M.C. that he was going to "hurt" N.M. by "having" A.M. M.C. understood Berry's threat to mean "kidnapping [A.M.] or hurting her, sexually." The police responded to M.C.'s call and arrested Berry.
For the events of May 29, 2008, Berry was charged with first-degree burglary, Minn. Stat. § 609.582, subd. 1(a) (2006), and aggravated harassment, Minn. Stat. § 609.749, subds. 2(a)(2), 3(a)(5), 3(b) (2006). Berry also was charged with first-degree burglary, Minn. Stat. § 609.582, subd. 1(a), first-degree witness tampering, Minn. Stat. § 609.498, subd. 1(f) (2006), and terroristic threats, Minn. Stat. § 609.713 (2006), for the events of June 4, 2008. Berry waived his right to a jury trial. After a bench trial during which M.C, N.M., Officer Ellison, and Berry testified, the district court found Berry guilty of each of the charged offenses. This appeal followed.
DECISION I.
Berry first argues that the district court committed reversible error by admitting hearsay evidence during N.M.'s testimony regarding the May 29 incident. During direct examination, the prosecutor asked N.M. whether she could "see what [A.M.] was doing" while Berry was pushing N.M. and trying to get to A.M.'s room. N.M. responded, "No, I didn't see her, she just told me after he left she hid herself in the closet." Berry concedes that he did not object to this testimony.
When a defendant fails to object to the admission of evidence, the right to appeal on that issue ordinarily is forfeited. Minn. R. Evid. 103(a)(1); State v. Williams, 525 N.W.2d 538, 544 (Minn. 1994); see also State v. Pearson, 153 Minn. 32, 35, 189 N.W. 404, 405 (1922) (stating that purpose of rule is "to require objection to evidence offered at the trial to be made at the time so clearly that the objection may be obviated or if not, then the testimony excluded"). This forfeiture rule is particularly applicable when the admission of hearsay is at issue because
[t]he number and variety of exceptions to the hearsay exclusion make objections to such testimony particularly important to the creation of a record of the trial court's decision-making process in either admitting or excluding a given statement. The complexity and subtlety of the operation of the hearsay rule and its exceptions make it particularly important that a full discussion of admissibility be conducted
at trial.
State v. Manthey, 711 N.W.2d 498, 504 (Minn. 2006) (emphasis added). By failing to object, Berry prevented both the state's opportunity to offer a basis for admitting the evidence and the district court's opportunity to address the issue. Because Berry's failure to object when N.M. testified to A.M.'s statement prevented the district court from making an informed ruling on the issue, his hearsay argument is forfeited on appeal.
Moreover, Berry's challenge is unavailing even when we address its merits using the plain-error standard. See Minn. R. Crim. P. 31.02 (establishing plain-error review when error was not brought to district court's attention); see also Manthey, 711 N.W.2d at 504 (applying plain-error test when appellant did not object to admission of hearsay evidence at trial). Under this standard, we consider (1) whether there is an error, (2) whether such error is plain, and (3) whether it affects the defendant's substantial rights. State v. Griller, 583 N.W.2d 736, 740, 742 (Minn. 1998). An error is plain if it is "clear" or "obvious," State v. Strommen, 648 N.W.2d 681, 688 (Minn. 2002), or if it "contravenes case law, a rule, or a standard of conduct," State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). If the three plain-error factors are established, we then consider whether the error seriously affected the fairness and integrity of the judicial proceedings. Griller, 583 N.W.2d at 740 (explaining that a court may exercise its discretion to correct a plain error only if such error seriously affected fairness, integrity, or public reputation of judicial proceedings).
Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Minn. R. Evid. 801(c). Out-of-court statements offered for purposes other than proving the truth of the matter asserted are not hearsay. State v. Campion, 353 N.W.2d 573, 580 (Minn. App. 1984). Hearsay is admissible only when specifically provided by the rules of evidence. Minn. R. Evid. 802. And the exceptions to the hearsay rule are numerous. See Minn. R. Evid. 803 (listing 22 exceptions to hearsay exclusion), 807 (stating residual exception to hearsay exclusion); Manthey, 711 N.W.2d at 504. But it is plain error for a district court to admit hearsay that does not satisfy an exception to hearsay exclusion. State v. Tscheu, 758 N.W.2d 849, 864 n. 17 (Minn. 2008).
A.M.'s statement may have been admissible under an exception to the hearsay rule. Rule 803(3), for example, permits evidence of
[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of [the] declarant's will.
To be admissible under rule 803(3), the statement must be contemporaneous with the mental state sought to be proven, State v. DeRosier, 695 N.W.2d 97, 104-05 (Minn. 2005), and the victim's state of mind must be relevant, State v. Miller, 754 N.W.2d 686, 704 (Minn. 2008). Here, A.M.'s state of mind is not merely relevant, it is an element of the offense. The temporal relationship between Berry's conduct and A.M.'s statement is not apparent from this record, and N.M.'s testimony does not supply sufficient detail to determine what motivated A.M.'s statement. But these lapses in the record could have been cured by a timely objection. Had Berry objected, proffered evidence of relevant facts would have clearly established whether the standard for admission under rule 803(3) had been met. On the record as it exists, however, plain error cannot be established.
Finally, Berry asserts in a footnote that defense counsel's failure to object to the admission of A.M.'s statement during N.M.'s testimony constitutes ineffective assistance of counsel. A claim of ineffective assistance of counsel requires proof that (1) counsel's performance was deficient such that counsel "made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment" and (2) the defendant was prejudiced by counsel's performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987). Declining to object for purposes of trial strategy, however, does not constitute ineffective assistance of counsel. See State v. Bobo, 770 N.W.2d 129, 138 (Minn. 2009) (stating that decision of whether to object is "part of an attorney's trial strategy" within discretion of trial counsel). A claim of ineffective assistance of counsel ordinarily should be raised in a postconviction petition for relief, rather than on direct appeal because "[a] postconviction hearing provides the court with additional facts to explain the attorney's decisions, so as to properly consider whether a defense counsel's performance was deficient." State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000) (quotation omitted). On the record before us, there is no basis for discerning why defense counsel did not object during N.M.'s testimony. In the absence of an adequate record, we decline to address Berry's ineffective-assistance-of-counsel argument raised as a footnote in his direct appeal.
II.
Berry also challenges the sufficiency of the evidence to support his convictions. When reviewing a challenge to the sufficiency of the evidence, we conduct a careful and thorough analysis to determine whether the fact-finder reasonably could find the defendant guilty of the offense based on the facts in the record and the legitimate inferences that can be drawn from those facts. State v. Chambers, 589 N.W.2d 466, 477 (Minn. 1999). In doing so, we view the evidence in the light most favorable to the verdict and assume that the fact-finder believed the evidence supporting the guilty verdict and disbelieved any evidence to the contrary. Id. We will not disturb the verdict if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, reasonably could conclude that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). We address each conviction in turn.
A.
A conviction of first-degree burglary under Minn. Stat. § 609.582, subd. 1(a), requires proof that, while a person other than the defendant's accomplice was inside a dwelling, the defendant entered that dwelling without consent and either committed or intended to commit a crime while there. Entry into a dwelling without consent includes entry "without the consent of the person in lawful possession," entry "by using artifice, trick, or misrepresentation to obtain consent to enter from the person in lawful possession," or "remaining] within a building without the consent of the person in lawful possession." Minn. Stat. § 609.581, subd. 4 (2006).
1.
Berry challenges his conviction of first-degree burglary on May 29 on several grounds. First, he argues that he did not remain in the building without consent. The evidence demonstrates that N.M. unambiguously told Berry to leave. But rather than leave, Berry approached A.M.'s bedroom and physically assaulted N.M. in his effort to enter the bedroom. Berry left only after M.C. threatened to call the police. Berry asserts that evidence of remaining without consent is sufficient only when one refuses to leave over an extended period of time. Although an offender's refusal to leave over a period of time has been held sufficient to support a burglary conviction, see State v. Totimeh, 433 N.W.2d 921, 924 (Minn. App. 1988) (holding that "failure to comply when told to leave several times" was violation of burglary statute), review denied (Minn. Feb. 22, 1989), neither the plain language of the statute nor caselaw interpreting the statute imposes the evidentiary requirement that Berry asserts. Evidence that Berry assaulted N.M. rather than comply with her request that he leave and that he abandoned his pursuit of A.M. only after he was threatened with police intervention amply supports the district court's finding that Berry remained in the apartment without N.M.'s and M.C.'s consent.
Berry also argues that the evidence does not establish that he intended to or actually committed the offense of aggravated harassment while in the apartment. Because the May 29 burglary conviction was premised on a finding that Berry committed the offense of aggravated harassment while in the apartment, we examine the record to determine whether there is sufficient evidence that Berry committed aggravated harassment.
Under Minnesota's criminal harassment statute, "[a] person who harasses another by committing any of the following acts is guilty of a gross misdemeanor: . . . stalks, follows, monitors, or pursues another, whether in person or through technological or other means." Minn. Stat. § 609.749, subd. 2(a)(2). "Harass" means "to engage in intentional conduct which: (1) the actor knows or has reason to know would cause the victim under the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated; and (2) causes this reaction on the part of the victim." Id., subd. 1 (2006). Harassment is a felony offense when it is committed "against a victim under the age of 18, if the actor is more than 36 months older than the victim." Id., subd. 3(a)(5).
Berry challenges the district court's finding that he pursued A.M. His argument primarily focuses on the lack of stealth in his conduct and the brevity of the incident. Although these may have been legitimate factors for the district court to consider when determining whether Berry's conduct was intentional, neither stealth nor prolonged conduct is a required element of harassment. Cf. State v. Olson, 765 N.W.2d 662, 665 (Minn. App. 2009) (stating in discussion of aggravating factors for sentencing departure that length of an attack is not an element of harassment). Nor are they necessarily relevant to whether Berry pursued A.M. — the basis on which the district court's harassment determination is founded. To pursue is to "follow in an effort to overtake or capture." The American Heritage Dictionary 1471 (3d. ed. 1992). The evidence establishes that Berry approached A.M.'s bedroom, told A.M. over her mother's objection that he wanted to meet her, and sought to make contact with A.M. a second time by approaching her bedroom, yelling his telephone number to her, and physically fighting with N.M. to get to A.M.'s bedroom. This evidence is more than sufficient to support a finding that Berry pursued A.M.
Further, although the district court focused on that portion of the harassment statute addressing pursuit, the evidence, as credited by the district court, also supports a finding that Berry monitored A.M. See Minn. Stat. § 609.749, subd. 2(a)(2). The district court found that, before May 29, Berry learned of A.M.'s presence in the household, expressed interest in A.M., and offered to pay M.C. $200 to "hook him up" with her. Additionally, the uncontroverted evidence from the testimony of both M.C. and N.M. is that Berry addressed A.M. by her middle name on May 29, which is significant because it establishes a higher degree of familiarity with A.M. than they could otherwise explain. This evidence, together with the evidence of Berry's conduct on May 29, establishes that Berry monitored A.M. and intended, by remaining in the apartment, to continue to do so. When taken as a whole, the evidence amply establishes that Berry harassed A.M. by both pursuing and monitoring her on May 29.
Berry also contends that there is not any properly admitted evidence that A.M. felt frightened, threatened, oppressed, persecuted, or intimidated by his conduct. Because Berry fails to establish that the district court plainly erred by admitting A.M.'s statement that she hid in the closet while Berry pursued her, we consider A.M.'s statement in our analysis. Berry argues that a number of reasons could explain why A.M. would have been in the closet at that time. But N.M. testified, based on A.M.'s statement, that A.M. was "hiding" in the closet. This evidence strongly suggests fear. Fear also is a reasonable explanation for A.M.'s behavior when considered in the context of a man shouting at her using an overly familiar name, demanding to meet her, and fighting with her mother to gain access to her in their home. The record, therefore, amply supports the district court's finding that A.M. was frightened by Berry's pursuit. When the record is viewed in the light most favorable to the guilty verdict, there is more than sufficient evidence to support Berry's convictions of the May 29 offenses.
See section I supra.
2.
Berry also challenges the sufficiency of the evidence supporting his conviction of the June 4 burglary. He first argues that the evidence does not establish that he used artifice, trick, or misrepresentation to obtain consent from N.M. to enter the apartment building. See Minn. Stat. § 609.581, subd. 4. Berry testified that he gave the name "Naji," his nickname. But N.M. testified that Berry used the name "Mando," the nickname of a friend of M.C. and N.M. The district court credited N.M.'s testimony that Berry used the name "Mando." The district court's determination that Berry "entered the dwelling . . . by using artifice, trick or misrepresentation," therefore, is supported with sufficient evidence. The record also supports the district court's finding that Berry again remained in the apartment without the consent of the residents. N.M. testified that, when she told Berry to leave, he continued to yell at her. Berry then moved farther into the apartment, confronting M.C. in her bedroom about her contact with the police. When taken together, that Berry used trickery to gain entry and then remained in the apartment without consent has more than sufficient evidentiary support to establish the entry element of the June 4 burglary.
Berry also argues that, because he did not threaten to cause harm or injury, there is insufficient evidence to establish that he committed first-degree witness tampering, the underlying crime that Berry was alleged to have committed while in M.C.'s and N.M.'s apartment on June 4. A conviction of first-degree witness tampering under Minn. Stat. § 609.498, subd. 1(f), requires proof that the defendant intentionally caused injury or "threatened] to cause injury" to a person or property in retaliation against a person who has provided information to law-enforcement authorities.
The record establishes that, after ignoring their requests to leave the apartment, Berry stood in close proximity to the two women and shouted at them about contacting the police. Each witness testified credibly, according to the district court, that in doing so, Berry caused them to believe that he intended to strike them. When viewing the evidence in the light most favorable to the verdict, Berry's confrontational conduct and statements, when considered together, are more than sufficient evidence that Berry intentionally threatened to cause injury to N.M. and M.C. in retaliation for providing information to law-enforcement authorities. See State v. Marchand, 410 N.W.2d 912, 915 (Minn. App. 1987) (stating in analysis of terroristic-threats conviction that victim's reaction to a threat is circumstantial evidence relevant to the element of intent), review denied (Minn. Oct. 21, 1987). This challenge to Berry's burglary conviction, therefore, fails.
B.
Finally, Berry argues that the evidence is insufficient to support the terroristic-threats conviction because the record does not establish that he threatened to commit a crime of violence. A person who "threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another . . . or in a reckless disregard of the risk of causing such terror" is guilty of making terroristic threats. Minn. Stat. § 609.713, subd. 1. The state must prove that the defendant (1) threatened to commit a crime of violence and (2) made the threat with either (a) specific intent to cause extreme fear in another or (b) reckless disregard of the risk that it would have that effect. Id.; State v. Schweppe, 306 Minn. 395, 398-400, 237 N.W.2d 609, 613-14 (1975) (discussing statutory elements).
The record evidence, which Berry does not dispute on appeal, establishes that, after leaving the apartment, he threatened to "hav[e]" or "get" A.M. in order to hurt her mother, N.M. Based on Berry's previous offers to pay money if M.C. "hooked him up" with A.M. and Berry's history as a sex offender, the district court found that Berry threatened to physically harm A.M. in a sexual manner. As such, the district court determined that Berry threatened to commit third-degree or fourth-degree criminal sexual conduct. See Minn. Stat. §§ 609.344 (defining third-degree criminal sexual conduct to include sexual penetration accomplished through use of force), 609.345 (defining fourth-degree criminal sexual conduct to include sexual contact accomplished through use of force) (2006). Both of these offenses are crimes of violence. Minn. Stat. §§ 609.1095, subd. 1(d) (including first-degree through fourth-degree criminal sexual conduct in definition of "violent crime"), 609.713, subd. 1 (stating that "crime of violence" in terroristic-threats statute has "the meaning given `violent crime' in section 609.1095") (2006).
Berry disputes that third-degree and fourth-degree criminal sexual conduct should be considered crimes of violence. But even if he were correct that some forms of third-degree or fourth-degree criminal sexual conduct should not be considered crimes of violence, his argument improperly limits the district court's decision to definitions of those offenses that are based solely on the ages of the defendant and the victim. See Minn. Stat. §§ 609.344, subd. 1(b) (sexual penetration), 609.345, subd. 1(b) (sexual contact). Contrary to Berry's argument here, the district court specifically found that Berry's threat "had a sexual connotation" and "suggest[ed] some sort of physical harm" to A.M. We also disagree with Berry's argument that his criminal sexual history and previous offers to pay for sex with A.M. support only an inference that he was threatening to have consensual sexual intercourse with A.M. The evidence demonstrates Berry's sexual interest in A.M., which, when combined with a threat to have or get A.M., supports a finding that he threatened sexual force or violence.
Because the substance of Berry's threat is undisputed and the record supports the inference that the threat was a threat to commit third-degree or fourth-degree criminal sexual conduct against A.M., the evidence is more than sufficient to support the district court's determination that Berry committed terroristic threats.
Accordingly, Berry's challenges to his convictions of two counts of first-degree burglary and one count of terroristic threats fail.
Affirmed.
ridge, respectively. Yamamoto Decl. ¶¶ 9-11. By contrast, users of full-sponge cartridges, however cannot observe remaining ink levels.
Id. It asserts, moreover, that later generations of printers using half-liquid cartridges include an LED display that flashes slowly or rapidly depending on the ink level.
Id. ¶ 39.
III. LEGAL STANDARD
"Class actions have two primary purposes: (1) to accomplish judicial economy by avoiding multiple suits, and (2) to protect rights of persons who might not be able to present claims on an individual basis." Haley v. Medtronic, Inc., 169 F.R.D. 643, 647 (C.D. Cal. 1996) (citing Crown, Cork Seal Co. v. Parker, 462 U.S. 345 (1983)). Federal Rule of Civil Procedure 23 governs class actions. A class action "may be certified if the trial court is satisfied after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied." General Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 161 (1982).
To certify a class action, plaintiffs must set forth prima facie facts that support the four requirements of Rule 23(a): (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. Dunleavy v. Nadler (In re Mego Fir. Corp. Sec. Litig.), 213 F.3d 454, 462 (9th Cir. 2000) (internal quotations omitted). These requirements effectively "limit the class claims to those fairly encompassed by the named plaintiff's claims." Falcon, 457 U.S. at 155 (quoting Califano v. Yamasaki, 442, U.S. 682, 701 (1979)).
If the district court finds that the action meets the prerequisites of Rule 23(a), the court must then consider whether the class is maintainable under one or more of the three alternatives set forth in Rule 23(b). Plaintiff seeks certification under Rule 23(b)(3). A class is maintainable under Rule 23(b)(3) where "questions of law or fact common to the members of the class predominate over any questions affecting only individual members," and where "a class action is superior to other available methods for fair and efficient adjudication of the controversy." Fed.R.Civ.P. 23(b)(3) (emphasis added). "The Rule 23(b)(3) predominance inquiry tests whether the proposed classes are sufficiently cohesive to warrant adjudication by representation." Hanlon v. Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir. 1998) (citing Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997)). The predominance inquiry measures the relative weight of the common to individualized claims. Id. "Implicit in the satisfaction of the predominance test is the notion that the adjudication of common issues will help achieve judicial economy." Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1189 (9th Cir. 2001) (citing Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996)). In determining superiority, the court must consider the four factors of Rule 23(b)(3): (1) the interests members in the class have in individually controlling the prosecution or defense of the separate actions; (2) the extent and nature of any litigations concerning the controversy already commenced by or against members of the class; (3) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (4) the difficulties likely encountered in the management of a class action. Id. at 1190-1993. "If the main issues in a case require the separate adjudication of each class member's individual claim or defense, a Rule 23(b)(3) action would be inappropriate." Id. (citing 7A Charles Alan Wright, Arthur R. Miller Mary Kay Kane,Federal Practice and Procedure § 1778 at 535-39 (2d. ed. 1986) (hereinafter "Wright, Miller Kane")).
IV. DISCUSSION
A. Rule 23(a) Requirements
1. Numerosity
Rule 23(a)(1) requires the members of a proposed class to be so numerous that joinder of all of the class members would be impracticable. Fed.R.Civ.P. 23(a). However, "[i]mpracticability does not mean `impossibility,' but only the difficulty or inconvenience in joining all members of the class."Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913-14 (9th Cir. 1964) (quoting Advertising Specialty Nat. Ass'n v. FTC, 238 F.2d 108, 119 (1st Cir. 1956)).
Although plaintiff does not provide an estimated number of members of the class, he argues that numerosity is presumed where the class is compromised of 40 or more members. Mot. at 10 (citing, e.g., In re Cooper Companies Inc. Securities Litigation, 254 F.R.D. 628, 634 (C.D. Cal. 2009)). Canon does not dispute that plaintiff's proposed class is sufficiently numerous to satisfy Rule 23(a)(1). Joinder is impracticable. As such, there is no dispute that the numerosity requirement of Rule 23(a)(1) is therefore met.
2. Commonality
Commonality requires "questions of law or fact common to the class." Fed.R.Civ.P. 23(a)(2). The commonality requirement is generally construed liberally; the existence of only a few common legal and factual issues may satisfy the requirement. Jordan v. County of L.A., 669 F.2d 1311, 1320 (9th Cir. 1982). The Court finds that the class members' claims derive from a common core of factual and legal issues. These factual and legal issues include the question of whether the "ink out" messages issued by Canon Pixma series inkjet printers are likely to deceive a reasonable consumer. Canon does not dispute that there exist questions of law or fact common to the class. See Jordan, 669 F.2d at 1320. The court agrees that the commonality requirement of Rule 23(a)(3) is therefore met.
3. Typicality
Typicality requires a determination of whether the named plaintiff's claims are typical of those of the proposed class that they seek to represent. Fed.R.Civ.P. 23(a)(3). "[R]epresentative claims are `typical' if they are reasonably co-extensive with those of absent class members; they need not be substantially identical." Hanlon, 150 F.3d at 1020; Schwartz v. Harp, 108 F.R.D. 279, 282 (C.D. Cal. 1985) ("A plaintiff's claim meets this requirement if it arises from the same event or course of conduct that gives rise to claims of other class members and the claims are based on the same legal theory").
Plaintiff argues that his claims and the putative class members' claims all arise from the same conduct — Canon's premature "ink out" messages. Mot. at 11. As victims of a common course of conduct, he contends that plaintiff's and class members' claims are identical, and thus he argues that the typicality requirement is satisfied. Id. at 12.
Canon responds that plaintiff cannot satisfy the typicality requirement because he uses only one model, the Canon Pixma MP830, which, according to Canon, is not typical of the other printer models at issue. Opp'n at 10-13; 24. Canon emphasizes that plaintiff's printer is unique in that it incorporates a later generation model feature — namely, a half-liquid cartridge with a functional memory chip that is able to detect ink level status more accurately — yet, the printer model retains the earlier generation model "ink has run out" initial message design, which affects less than 10% of the printer models at issue. Id. at 24; Yamamoto Decl. ¶¶ 63-64, 66-67. By contrast, it asserts, other models display multiple "ink out" messages, the earliest of which indicates that the printer "may have" run out of ink, and the later "ink has run out" message which is generally never seen because deteriorating print quality has already necessitated cartridge replacement. Opp'n at 11. Further, Canon argues that plaintiff's admittedly infrequent use affects when ink level status messages appear and because plaintiff's printer is connected to a computer running on Mac OS, when he receives an ink level status message, he can only view a graphic display corresponding generally to the current remaining ink level in the cartridge by running a special printer utility program for each print job. Id. at 11-12; 25 (citing Insalaco Dep. 46:16-47:1). Finally, Canon argues that plaintiff reaction to "ink out" messages is different from that of other printer users who generally ignore the messages and continue to print.Id. In this way, it emphasizes that although page yield information on his MP830 printer is available on Canon's website, plaintiff did not visit that website, nor did he try to locate any other source of information that would allow him to estimate, based on his particular printing needs and practices, how many pages he could reasonably be expected to print from each cartridge he purchased. Id. In addition, plaintiff testifies that he never opens the printer cover to check the ink level visually but relies exclusively on the ink level status messages displayed on his computer and LCD screen. Id. at 12 (citing Insalaco Dep. 52:1-4, 54:18-21, 57:12-24, 63:7-12, 69:18-70:21). All of these differences, Canon contends, set plaintiff apart from the members of the proposed class — including other MP830 users — and make him "subject to unique defenses which could skew the focus of the litigation." Id. at 25 (quoting Gonzalez v. Proctor Gamble Co., 247 F.R.D. 616, 622 (S.D. Cal. 2007)).
Plaintiff replies that these purported differences raised by Canon have no bearing on whether his claims are typical, for purposes of this motion. Reply at 14. Rather, plaintiff reiterates that he is typical because he, like all members of the class: (a) owns a Canon printer that stops printing and displays an "ink out" message; and (b) was never advised that useable amounts of ink remained in the cartridges when the "ink out" message was displayed. Id.
Notwithstanding the asserted differences between plaintiff and members of the proposed class, plaintiff's claims are based on an alleged common course of conduct by Canon whereby defendant's Pixma inkjet printers prematurely indicate that an ink cartridge is out of ink and needs to be replaced. Therefore, plaintiff's claims arise from the "same event or course of conduct" as those of the various class members, as required under Rule 23(a)(3), and are typical of the claims of the proposed class.
4. Adequacy of Representation
The adequacy of representation requirement of Rule 23(a)(4) involves a two-part inquiry: "(1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?" Hanlon, 150 F.3d at 1020.
As the owner of a Canon Pixma printer, plaintiff asserts that he has standing to pursue his UCL claim on behalf of the class because has suffered an actual injury and lost money or property when he replaced the purportedly empty ink cartridges in his printer directly as a result of the allegedly false and deceptive "ink out" messages made by Canon. Mot. at 7 (citing Cal. Bus. Prof. Code § 17204; O'Brien v. Camisasca Auto. Mfg., 161 Cal. App. 4th 388, 399 (2008)). Plaintiff further asserts that his interests are fully aligned with those of the class since they bring the same claims for similar remedies under the same legal theories. Id. at 12. He maintains that there are no actual or potential conflicts of interest between plaintiff and the class members, and further that plaintiff's counsel are experience class action counsel that "remain[] committed to devoting all necessary resources to prosecuting this matter and possess the resources necessary to represent the proposed class." Id. at 12-13. Canon does not appear to dispute that plaintiff's counsel are able to prosecute this action vigorously or contend that there are any conflicts of interest that would defeat certification. Accordingly, the Court finds that the adequacy requirement of Rule 23(a)(4) is satisfied.
B. Rule 23(b)(3) Requirements
Certification under Rule 23(b)(3) is proper "whenever the actual interests of the parties can be served best by settling their differences in a single action." Hanlon, 150 F.3d at 1022 (internal quotations omitted). As noted above, Rule 23(b)(3) calls for two separate inquiries: (1) do issues common to the class "predominate" over issues unique to individual class members, and (2) is the proposed class action "superior" to other methods available for adjudicating the controversy. Fed.R.Civ.P. 23(b)(3). The latter requirement requires consideration of the difficulties likely to be encountered in the management of this litigation as a class action, including, especially, whether and how the case may be tried. In making these determinations, the Court does not decide the merits of any claims or defenses, or whether the plaintiffs are likely to prevail on their claims. Rather, the Court must determine whether plaintiffs have shown that there are plausible class-wide methods of proof available to prove their claims. Nevertheless, as the Ninth Circuit recently made clear in Dukes v. Wal-Mart Stores, Inc., when considering a class certification motion, district courts "must[] perform a rigorous analysis to ensure that the prerequisites of Rule 23 have been satisfied, and this analysis will often, though not always, require looking behind the pleadings to issues overlapping with the merits of the underlying claims." 603 F.3d 571, 594 (9th Cir. 2010).
1. Predominance and Commonality
"Implicit in the satisfaction of the predominance test is the notion that the adjudication of common issues will help achieve judicial economy." See Valentino, 97 F.3d at 1234. Thus, the Court must determine whether common issues constitute such a significant aspect of the action that "there is a clear justification for handling the dispute on a representative rather than on an individual basis." 7A Wright, Miller, Kane, Federal Practice Procedure § 1778 (3d ed. 2005). For the proponent to satisfy the predominance inquiry, it is not enough to establish that common questions of law or fact exist, as it is under Rule 23(a)(2)'s commonality requirement — the predominance inquiry under Rule 23(b) is more rigorous.Amchem Prods., Inc., 521 U.S. at 624. The predominance question "tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Id. at 623. The Court, therefore, must balance concerns regarding the litigation of issues common to the class as a whole with questions affecting individual class members. Abed v. A. H. Robins Co. (In re Northern District of California, Dalkon Shield IUD Products Liability Litigation), 693 F.2d 847, 856 (9th Cir. 1982).
Here, as discussed below, the crucial questions are (1) whether plaintiff has shown that every printer model in the proposed class displays the same, or substantially the same, "ink out" message; and (2) the existence of a plausible class-wide method for proving that when these "ink out" messages appear there is in fact a material amount of usable ink remaining in each class members' printer cartridges, and not only a de minimis amount. Accordingly, the question is whether plaintiff can establish on a class-wide basis the materiality of Canon's misrepresentations regarding the remaining ink level of the printers in question and that these allegedly deceptive statements caused injury to members of the class.
Canon also contends that plaintiff's proposed class is "impermissibly vague and over broad," and thus plaintiff fails to satisfy an implied threshold requirement for class certification that the class be identifiable and ascertainable. Opp'n at 21. The Court finds that plaintiff's proposed class definition is sufficient, given that the identity of class members is ascertainable by reference to an objective criteria — namely ownership of certain Canon brand printers. See 5 James W. Moore, Moore's Federal Practice, § 23.21[1] (2001).
Plaintiff maintains that every single one of the printer models in his proposed class: (i) stops printing when the printer determines that an ink cartridge has reached a predetermined "ink out" condition (the "hard stop"); (ii) displays an "ink out" message to users when the printer has reached the "ink out" condition; and (iii) determines when an ink cartridge has reached the predetermined "ink out" condition by using the exact same "dot counting" technology. Reply at 1 (citing Yamamoto Dep. 113:18-21, 116:21-118:2). Moreover, plaintiff asserts that Canon fails to disclose to its users that the messages they were receiving were inaccurate. Id. at 9. According to plaintiff, Canon fails to disclose to its customers that in order to ensure that their ink cartridges do not actually run out of ink before the "ink out" message has been displayed, Canon "compensates" for the at least 10 % variance inherent in its dot counting technology. Id. at 6 (citing Yamamoto Dep. 114:16-115:4). Plaintiff maintains that the very existence of this "compensation" means every "ink out" message is demonstrably false when given. Id.
Plaintiff asserts that it is not clear based on the evidence obtained at present, whether some of the Canon Pixma series printers lack this "hard stop" feature that causes the printer to stop printing before the cartridge is empty. Reply at 1, n. 1. To the extent that further discovery reveals the existence of such printers, plaintiff explicitly excludes them from his class definition. Id.
At oral argument, plaintiff's counsel emphasized that while the printers at issue may display varying messages, all the printers display the same ultimate "ink has run out" message.
The "dot counting" detection method is an algorithm programmed by Canon which Canon claims is accurate to approximately a 10 percent variance. Yamamoto Dep. 104:19. In his deposition, Canon's employee Yamamoto testified that "[u]nder the dot counting method, with respect to an ink cartridge of a certain color, the remaining volume is calculated by counting and adding — tabulating the number of dots that were used for printing and other from the recorder head. So at least there is a 10 percent margin of error." Id. at 104:15-19. When asked how Canon "compensate[s] for that 10 percent margin of tolerance," or, in other words, if Canon "do[es] it by creating programming that gives an "out" message 10 percent earlier," Yamamoto testified that
[t]here are many different printer models, so it varies by model. But in order to give an early message by taking into account the 10 percent in the dot counting method or, in other words, when the method is shown the ink is exactly gone or there are models that have some small meaningful amount of ink in it. That's what's done for compensation, to use your word.
Id. at 114:16-115:4.
On July 14, 2010, Canon filed objections to plaintiff's characterization of the evidence regarding the role of margin of tolerance and commonality of ink level detection methods in printers. It argues that Yamamoto denied that all of the printers at issue are programmed to "compensate" for a ten percent margin of tolerance in determining when "ink out" messages are displayed. Further, it argues that Yamamoto explained that the impact of the dot counting method depends entirely on the cartridge platform used by that model of printer.
Despite Canon's argument that different printer users receive a wide array of messages depending on their printer model and the operating system running on their computer, see opp'n at 2-5, 17-18, Yamamoto Decl., Ex. A, the Court is unpersuaded that these variations are the type of "material variation" in defendant's representations regarding the ink level that would render fraud-based claims unsuitable for class treatment. See In re First Alliance Mortgage Co., 471 F.3d 977, 990, 992 (9th Cir. 2006) ("The class action mechanism would be impotent if a defendant could escape much of his potential liability for fraud by simply altering the wording or format of his misrepresentations across the class of victims."). Rather, it appears, that all of the printers plaintiff is seeking to certify issue a substantially similar "ink out" message, combined with the "hard stop" of the printer while receiving that message, and that class members allegedly receive this message before the printer cartridges may in fact be entirely empty.
As to the second question — namely, whether plaintiff has shown a plausible class-wide method for proving that these "ink out" messages appear when there is in fact a material amount of usable ink remaining in each class members' printer cartridges, and thus constitute actionable conduct common to the entire Class — the Court considers the two claims plaintiff is presently seeking to certify in turn.
a. Claim Under the UCL
Plaintiff argues that common issues of law and fact predominate as to his claim under the "fraudulent" prong of the UCL. Mot. at 14. He emphasizes that "relief under the UCL is available without individualized proof of deception, reliance and injury" because to state a claim under the UCL, based on false advertising or promotional practices, "it is necessary only to show that members of the public are likely to be deceived." Id. (In re Tobacco II Cases, 46 Cal. 4th 298, 312 (2009)). This "reasonable consumer" test, plaintiff argues, is by its very nature objective and thus uniform and common to the entire class.Id. at 15 (citing, e.g., Yokoyama v. Midland Nat'l Life Ins. Co., 594 F.3d 1087, 1093 (9th Cir. 2010)). Accordingly, plaintiff asserts that adjudication of this claim hinges on the determination of a single issue that is uniformly applicable to each class member — whether Canon's messages regarding ink cartridge levels are likely to deceive a reasonable consumer. Id. at 14.
Canon contends that individual issues of liability predominate over common issues. Opp'n at 14. Although the California Supreme Court has held that relief under UCL is available without individualized proof, Canon contends that holds true only where there has been "uniform conduct to mislead the entire class." Id. at 15 (quoting Kaldenback v. Mut. of Omaha Life Ins. Co., 178 Cal. App. 4th 830, 850 (2009)). Likewise, it asserts that reliance cannot be inferred unless the alleged misrepresentation was material. Id. (citing, e.g., Kingsbury v. U.S. Greenfiber, LLC, 2009 WL 2997389, at *10 (C.D. Cal. Sept. 14, 2009) ("Any inference of reliance that could be drawn from [defendant's] alleged misrepresentations are overcome by the overwhelming evidence that [plaintiff] did not rely on any of the statements at issue.")). In the instant case, Canon argues that causation, deception, reliance, and injury must be individually established because (1) plaintiff cannot allege uniform conduct, given that the users of the 173 printer models at issue received the ink level status messages at points when greatly varying amounts of ink may have remained; and (2) determining the amount of ink remaining and whether messages were material to users requires individualized inquiries into how each printer user reacted to the specific messages that were received, and how each printer in the putative class was used. Id. at 15-16, 18. Canon contends that this case is the same as Frosini v. Bridgestone Firestone N. Am. Tire, LLC, 2007 WL 2781656 (C.D. Cal. Aug, 24, 2007), where this Court found that plaintiff's failure to identify a "single practice, policy or defect affecting all . . . proposed class members in the same way" required denial of class certification.Id. at 16. It argues, by contrast, that this case is unlikeMenagerie Prods. v. Citysearch, 2009 WL 3770668 (C.D. Cal. Nov. 9, 2009), where this Court easily found a single practice affect all proposed class members because defendant was alleged to have made a material omission to all putative class members who had entered into a standard form agreement with defendant. Opp'n at 17.
Plaintiff replies that under the UCL, the individual reactions of each class member to the "ink out" message is irrelevant because the UCL employs an objective standard. Reply at 10. He argues that this case is fully analogous to Menagerie Products, because plaintiff has offered sufficient evidence of a common class-wide omission in demonstrating that Canon fails to disclose to its consumers that there is in fact a significant quantity of ink remaining in an ink cartridge when the "ink out" messages are displayed. Id. at 11. Finally, plaintiff contends that Canon's attempt to analogize various printer models to different tire modes, at issue in Frosini, is unavailing. Id. Whereas the record in Frosini demonstrated that the tires at issue may have been subjected to any number of conditions, including wear and tear, plaintiff argues that there is nothing in the record to demonstrate that the misrepresentations made by Canon depend on the particular manner or conditions under which an individual printer is used. Id. at 12.
At oral argument, Canon emphasized that plaintiff fails to offer any admissible evidence, or expert testimony, to demonstrate how he will establish on a class-wide basis that a material amount of usable ink remains in each class members' printer cartridges at the time when the "ink out" message appears. Without any such supporting evidence, or a trial plan for that matter, Canon argued that plaintiff fails to meet his burden under Rule 23(b)(3), to show how this case could proceed as a class action. Further, it maintained, that without class-wide proof that the "ink out" message appears when a significant amount of usable ink remains in each class members' cartridges, plaintiff cannot show that the message is a material misrepresentation or omission that could constitute deceptive conduct under the UCL. In response, plaintiff clarified that the key conduct common to the entire class is Canon's failure to disclose the at least ten percent variance inherent in its dot counting technology. Thus, he argued that the deposition testimony provided by Canon's employee Yamamoto provides support evidentiary support for his motion. In other words, according to plaintiff, given the margin of error inherent in the technology that Canon employs to determine ink levels, as conceded by Yamamoto, see Dep. 104:15-19, Canon must compensate for this "margin of error" by designing its printers to indicate that an ink cartridge is "out of ink" when its technology has estimated that the ink remaining in the cartridge is within its "margin of tolerance." In this way, plaintiff argues that the amount of ink that remains in any individual class members' cartridge is irrelevant because the claim is that the message the "ink has run out" deceptively fails to disclose that its based on a margin of tolerance.
Although "relief under the UCL is available without individualized proof of deception, reliance, and injury," see Tobacco II Cases, 46 Cal. 4th at 312, 320, in this case, plaintiff fails to demonstrate how he will establish on a class-wide basis that a material amount of ink remained in each class members' cartridges when the "ink out" messages appeared. If only a de minimis amount of ink remained at that point, then no misrepresentation or omission was made, and certainly not one that could be deemed material or "likely to deceive" a "reasonable consumer" under the UCL. Plaintiff's attempt to rely solely on the deposition testimony of Canon's employee Yamamoto is unavailing. First, the Court is unpersuaded that his testimony can be construed in the way advanced by plaintiff — namely, that Canon concedes that all of its printers are programmed to "compensate" for a 10% margin of tolerance in determining when an "ink out" messages are displayed. Further, the fact that there is a ten percent variance inherent in the printer technology does not address the critical question of whether there is in fact a material amount of useable ink remaining in each class members' printer cartridges when the "ink out" message appears. Because plaintiff fails to submit any evidence or expert testimony to the contrary, it appears based on the record that whether a printer receives an "ink out" message before, after, or at the same time that the ink in the cartridge has run out is an individual issue of fact that must be determined for each printer. Accordingly, the Court concludes, as to plaintiff's UCL claim, that common issues of fact do not predominate over individual ones.
b. Claim under the CLRA
Plaintiff argues that common issues predominate as to his CLRA claim. Mot. at 15. He acknowledges that unlike a UCL class, the member of a CLRA class must show that he or she suffered damage by relying on the defendant's misrepresentation or omission. Id. (citing Stern v. AT T Mobility Corp., 2008 WL 4382796, at *12 (C.D. Cal. Aug. 22, 2008); Steroid Hormone Product Cases, 181 Cal. App. 4th 145, 155 (2010)). Nevertheless, plaintiff maintains that "the causation required by the [CLRA] does not make [his] claims unsuitable for class treatment." Id. at 16 (quoting Massachusetts Mutual Life Ins. Co. v. Superior Ct., 97 Cal. App. 4th 1282, 1292-93 (2002)). Plaintiff contends that as long as he can show that "material misrepresentations were made to the class members, at least an inference of reliance arises as to the entire class."Id. (quoting Mass. Mut., 97 Cal. App. 4th at 1292-93). In other words, he asserts, plaintiffs pursuing claims under the CLRA can "satisfy their burden of showing causation as to each by showing materiality as to all." Id. Because materiality is determined from the perspective of the reasonable consumer, plaintiff contends that it is an issue necessarily decided on a class-wide basis. Id. at 17 (citing Falk v. General Motors Corp., 496 F. Supp. 2d 1088, 1095 (N.D. Cal. 2007)). Thus, although there may be individual variations concerning the printer messages that class members received and how certain class members reacted to those messages, plaintiff argues that these facts do not undermine the conclusion that common issues predominate. Id. at 16. Rather, he asserts that adjudication of his CLRA claim hinges on the determination of a common question of fact — whether Canon's substantially identical warnings made to all class members regarding ink cartridge levels are material. Mot. at 17 (citing Mass. Mut., 97 Cal. App. 4th at 1294 (the "ultimate question of whether [those warnings] are material [is] a common question of fact suitable for treatment in a class action")). Finally, plaintiff emphasizes that individual damage considerations alone do not defeat a finding of predominance. Id. at 17 (citing Yokoyama, 594 F.3d at 1094). Because common questions predominate regarding liability, he asserts that Canon cannot defeat class action treatment by arguing that each class member will suffer different injuries, since they may have purchased a different quality and varying colors of replacement ink cartridges. Id.
The CLRA makes it unlawful to use "unfair methods of competition or deceptive acts or practices" in the sale of goods or services to a consumer. Cal. Civ. Code § 1770(a). The CLRA allows "[a]ny consumer who suffers any damages as a result of the use or employment by any person of a method, act, or practice" to bring an action to recover or obtain actual damages, injunctive relief, restitution, and/or punitive damages. Cal. Civ. Code § 1780(a). Such unlawful conduct includes "representing that goods or services have . . . characteristics[,] . . . uses, benefits, or qualities which they do not have," and representing that a part, replacement, or repair service is needed when it is not." Id. §§ 1770(a)(5) and (15).
In responding that individual issues of liability under CLRA predominate, Canon makes many of the same arguments it raised as to plaintiff's claim under UCL. Opp'n at 14-21. Because the CLRA does not apply to persons who purchase a product for business use, see Cal. Civ. Code § 1761(d), Canon contends that the Court will need to resolve on an individual basis whether each proposed class member is using the printer for "personal, family, or household purposes." Id. at 21. Further, it argues that because plaintiff has suggested no method to determine materiality, the question of whether a user considers the level of ink that remains when the ink level status messages display, to be material, is an individual issue of liability. Id. at 19 (citingHodes v. Van's Int'l Foods, 2009 WL 2424214, at *4 (C.D. Cal. July 23, 2009) (denying certification of a class of purchasers of frozen waffles because, "plaintiffs have not presented the Court with any indication of how to determine the amount of damages suffered by each class member")).
A member of a CLRA class must show that he or she suffered damage by relying on the defendant's misrepresentation or omission. Wilens v. TD Waterhouse Group, Inc., 120 Cal. App. 4th 746, 755 (2003). Where misrepresentations are sufficiently material, "an inference of reliance may arise as to the entire class." Id. at 814; see also Mass. Mut., 97 Cal. App. 4th at 1286 (stating that class wide inference of reliance may be based on a material misrepresentation in order to certify CLRA class);but see, Gonzalez v. Proctor and Gamble Co., 247 F.R.D. 616 (S.D. Cal. 2007) (denying class certification because although an inference of reliance is permitted when a "single, material misrepresentation was directly made to each class member," the "[p]laintiff's allegations that a class of consumers, who may have seen all, some, or none of the advertisements that form the basis of [p]laintiff's suit, does not allow an inference of common reliance or liability"). A misrepresentation is judged to be material "if `a reasonable man would attach importance to its existence or nonexistence in determining his choice of action in the transaction in question,' and as such materiality is generally a question of fact unless the `fact misrepresented is so obviously unimportant that the jury could not reasonably find that a reasonable man would have been influenced by it.'" In re Tobacco II, 46 Cal. 4th at 327 (quoting Engalla v. Permanente Medical Group, Inc. 15 Cal. 4th 951, 976-977 (1997)). Further, a presumption of reliance is most appropriate in cases sounding in fraud where the plaintiffs "have primarily alleged omissions, even though the [p]laintiffs allege a mix of misstatements and omissions." Cartwright v. Viking Industries, Inc., 2009 WL 2982887, at 12 (E.D. Cal. Sept. 14, 2009) (citing Binder v. Gillespie, 184 F.3d 1059, 1064 (9th Cir. 1999)).
"Causation as to each class member is commonly proved more likely than not by materiality. That showing will undoubtedly be conclusive as to most of the class. The fact a defendant may be able to defeat the showing of causation as to a few individual class members does not transform the common question into a multitude of individual ones; plaintiffs satisfy their burden of showing causation as to each by showing materiality as to all."Mass. Mut., 97 Cal. App. 4th at 1292 (quoting Blackie v. Barrack 524 F.2d 891, 907, fn. 22. (9th Cir. 1975)).
In Mazza v. Am. Honda Motor Co., 254 F.R.D. 610, 625-26 (C.D. Cal. 2008), and Chamberlan v. Ford Motor Corp., 223 F.R.D. 524, 526-27 (N.D. Cal. 2004), California district courts held that a presumption of reliance was appropriate, and thus common issues of law and fact predominated, in claims brought pursuant to the CLRA for failure to disclose alleged design defects. Cf. Gartin v. S M Nutec LLC, 245 F.R.D. 429, 437-30 (C.D. Cal. 2007) (holding the common issues did not predominate where the plaintiff's fraud and CLRA claims were based upon affirmative misrepresentations and a presumption of reliance did not apply). Further, the Ninth Circuit has stated that a presumption of reliance typically is only permitted in securities fraud cases, and only in cases based on omissions as opposed to affirmative misrepresentations. See Poulos v. Caesars World, Inc., 379 F.3d 654, 666 (9th Cir. 2004).
In the instant case, the gravamen of plaintiff's allegations is that Canon's "ink out" statements and its concealment of the inaccuracy inherent in its ink level detection methods are material enough to compel a reasonable consumer to believe that the ink cartridge is empty and needs to be replaced. However, as noted previously, plaintiff fails to demonstrate how he will establish on a class-wide basis that a material amount of ink remained in each class members' cartridges when the "ink out" messages appeared. Without such a showing, plaintiff cannot establish that "material misrepresentations were made to the class members [such that] at least an inference of reliance arises as to the entire class." Mass. Mut., 97 Cal. App. 4th at 1292-93. Thus, the Court concludes that plaintiff fails to satisfy the predominance requirement as to his CLRA claim.
2. Superiority
Because plaintiff fails to make out a sufficient showing to satisfy Rule 23(b)(3)'s predominance requirement, the Court need not consider whether the superiority requirement is met.
V. CONCLUSION
In accordance with the foregoing, the Court DENIES plaintiff's motion for class certification without prejudice.
IT IS SO ORDERED.