Antitrust Law Daily Wrap Up, ADVERTISING—Ca. App. Ct: Class certification denied for lack of ascertainable class, typical representative, (Jun 26, 2015)

By Michael Menzhuber, J.D., LL.M.

Denial of class certification to a consumer, claiming that an individual falsely advertised jobs online, was upheld by a California appellate court. A lower court order, finding an absence of an ascertainable class or representative with claims typical of the class, was not an abuse of discretion (Martinez v. O’Hara, June 25, 2015, Rylaarsdam, W.).

Background. After posting his resume on Monster.com, Fernando Martinez received an e-mail from Stephan Stratton O’Hara, inviting him to visit the website for Career Solutions and Candidate Acquisitions (CSCA), a real estate sector talent acquisition firm represented by O’Hara. After visiting the site and completing the on-line application, O’Hara invited Martinez to his home to discuss career options, including a position as his personal assistant.

After accepting the position as O’Hara’s personal assistant, O’Hara and Martinez began a personal relationship. When Martinez ended his personal relationship with O’Hara, his employment relationship ended as well. Before receiving his final paycheck, Martinez was required to sign a release which, among other things, obligated him to keep all business and personal information related to O’Hara confidential.

Martinez sued O’Hara, CSCA, and Professional Realty Council, Inc., alleging several individual causes of action, including a class action false advertising claim. The class proposed by Martinez was comprised of California residents who were previously exposed to the approximately 20,000 generic e-mails sent out by the defendants on Monster.com. The court denied the motion for class certification and Martinez appealed.

Ascertainable Class. The trial court refused to certify Martinez’s proposed class of the 20,000 people who got an e-mail from the defendants because he failed to show how the putative class members could be identified and located without reasonable time and expenses. The court determined that the lack of evidence before the trial court supported its finding.

Martinez argued that the trial court used the wrong standard in determining the proposed class because it was not limited to people who actually acted on the e-mail from the defendants. The court agreed that, under California’s Unfair Competition Law (UCL), it was not necessary to prove that members of the public were actually deceived by the practice, relied on the practice, or suffered damages. However, it found that a class action could proceed under the fraudulent business practice under the UCL if it could not be established that the defendant engaged in uniform conduct likely to mislead the entire class. The court then found that Martinez presented no evidence that the e-mails sent by the defendants had that capacity.

Claims Typical of the Class. The court noted that the test for “typicality” is: (1) whether other class members have the same or similar injury; (2) whether the action is based on conduct which is not unique to the named plaintiff; and (3) whether other class members have been injured by the same course of conduct. The trial court found that the personal nature of what occurred between Martinez and O’Hara was unique and the court found that this finding was supported by the record.

Martinez argued that the trial court erred in its analysis because (1) the “typical claim” shared by him and the class was the e-mail from the defendants and the CSCA website and (2) no individualized showing of class member reliance or injury was needed for class claims under the UCL. The court disagreed because a class action under the UCL requires a showing that the defendant’s “uniform conduct was likely to mislead the entire class.” According to the court, this could not be done absent the existence of other class members who were likely to have been misled and “typicality” could not be demonstrated with the evidence of what their claims might be.

The case is No. G050710

Attorneys: Kimberley Fonner, and Benjamin Pavone (Offices of Pavone & Fonner) for Fernando Martinez. Grant G. Teeple, and Frederick M. Reich (Teeple Hall, LLP) for Stephen Stratton O’Hara.

Cases: Advertising CaliforniaNews