Diane Hunter v. Capello’s LLC

• Court: District Court, E.D. California
• Decided: December 17, 2025
• Docket: 2:24-cv-02487
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 DIANE HUNTER, No. 2:24-cv-2487 DAD AC 11 Plaintiff, 12 v. FINDINGS AND RECOMMENDATIONS 13 CAPELLO’S LLC, 14 Defendant. 15 16 This case is before the court on plaintiff’s motions for class certification (ECF No. 14) and 17 for default judgment after such certification (ECF No. 13). The motion for class certification was 18 referred to the undersigned by the district judge presiding over this case (ECF No. 20), whereas 19 the motion for default judgment was referred to the undersigned pursuant to E.D. Cal. 20 R. 302(c)(19). The motions were taken under submission on the papers on June 17, 2025, but 21 restored to the calendar on October 2, 2025. ECF Nos. 21, 24. Following a hearing on December 22 3, 2025, for the reasons set forth below, the undersigned recommends that both motions be denied 23 without prejudice. 24 I. Relevant Background 25 Plaintiff filed this complaint on September 12, 2025, asserting jurisdiction under 28 26 U.S.C. §1332(d). ECF No. 1 at 8, 10. Plaintiff Diane Hunter is a California citizen, whereas 27 defendant Capello’s, LLC (“Capello’s”) is a Delaware company with its principal place of 28 business in Colorado. Id. 1 Plaintiff seeks to bring this action on behalf of anyone who bought any of a series of 2 “Products” by defendant. ECF No. 1 at 2, 11. The Products include defendant’s “Keto Cheese 3 Pizza”; “Keto Pizza Crust”; “White Pizza”, “Margherita Pizza”, “Whole Milk Mozzarella Cheese 4 Pizza”, and “Naked Pizza Crust”, each with Almond Flour Crust; “Five-Cheese Ravioli” and 5 “Spinach & Cheese Ravioli” varieties of Almond Flour Pasta; and Bakery Style Cookie Dough 6 for both “Chocolate Chip” cookies and “Sugar Cookies”. ECF No. 1 at 11-12. 7 The complaint alleges that each Product prominently displays the number of grams of fat, 8 carbohydrates, or proteins in a single serving, but not the disclaimers that must accompany such 9 claims when used to advertise a Product. ECF No. 1 at 11-13. Products making such a “nutrient 10 content claim” must also warn customers to “[s]ee nutrition information for [fat, saturated fat, 11 cholesterol, or sodium] content” if one serving contains more than 13 grams, 4 grams, 60 12 milligrams, or 480 milligrams respectively, in a legible disclaimer that is adjacent to the nutrient 13 content claim. ECF No. 1 at 20-21; 21 C.F.R. § 101.13(b), (h)(1), (h)(4). The Margherita Pizza 14 plaintiff purchased advertises that one serving has 14 grams of protein. ECF No. 1 at 11, 13. The 15 box does not include any disclaimer, however, despite one serving having 34 grams of fat, 15 16 grams of saturated fat, 130 milligrams of cholesterol, and 910 milligrams of sodium. ECF No. 1 17 at 13. Similarly, the Whole Milk Mozzarella Cheese Pizza advertises having 16 grams of protein 18 per serving but conceals the fact that it has 17 grams of saturated fat per serving. Id. at 12, 14. 19 Overall, the saturated fat in a serving of each Product ranges from 5 to 17 grams. Id. at 14. 20 The complaint contrasts defendant’s labeling practices with those of competitors who 21 either exclude any nutrient content claim from the packaging or include the disclaimer as to fat or 22 saturated fat levels. Id. at 25-27. The complaint alleges that defendant’s “deceptive 23 representations” gave it an unfair competitive advantage by falsely making its Products look 24 healthier than, and therefore superior to, its competitors’ equivalent offerings. Id. at 27. Plaintiff 25 and other members of the proposed class paid a premium price for Products that were effectively 26 not as represented, and for which they would not have paid as much but for the 27 misrepresentations. Id. at 30. The complaint further asserts that with the continued growth of the 28 //// 1 market for health-focused goods, defendant has an incentive to continuing mislabeling its 2 products. Id. at 28. 3 Based on these allegations, the complaint asserts causes of action for violations of 4 California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq.; False 5 Advertising Law (“FAL”), Cal. Bus. & Prof. Code § 17500 et seq.; and Consumer Legal 6 Remedies Act (“CLRA”), Cal. Civ. Code1 § 1750 et seq. ECF No. 1 at 34-42. For such 7 purposes, plaintiff seeks to represent a “California Class” consisting of anyone who purchased the 8 Products within the state of California within the applicable statute of limitations. ECF No. 1 at 9 31. The statute of limitations is three years under the FAL and CLRA, but four years under the 10 UCL. Id. at 31-32. The complaint also asserts an unjust enrichment claim on behalf of a 11 “Nationwide Class” consisting of anyone who bought the Products in the United States within the 12 four-year statute of limitations for such a claim. Id. at 32, 41. 13 Aside from certification of the classes, with plaintiff serving as representative plaintiff and 14 her counsel as class counsel (ECF No. 1 at 44-45), the complaint seeks an order enjoining the 15 future use of nutrient content claims on Products without the requisite disclaimer, restitution and 16 disgorgement of all money acquired through sale of the Products, compensatory and punitive 17 damages, and attorney’s fees and costs. Id. at 45. 18 Plaintiff served defendant with the summons on September 16, 2024. ECF No. 5. When 19 the Clerk of Court declined to enter default on November 13, 2024, it noted that the declaration in 20 support of plaintiff’s request cited Fed. R. Civ. P. 4(e)(2)(A). ECF No. 6-1 at 2; ECF No. 7. The 21 Clerk explained that this section, which concerned personal service on an individual defendant, 22 was inapplicable when the defendant is a corporation. ECF No. 7. In a renewed request for entry 23 of default, plaintiff clarified that service had been via delivery to defendant’s registered agent for 24 service of process, in accordance with Fed. R. Civ. P. 4(h)(1)(B). ECF No. 8-2 at 2. The Clerk of 25 Court entered default on January 29, 2025. ECF No. 12. Plaintiff filed the pending motions on 26 May 23, 2025, and served them on defendant on September 15, 2025. ECF Nos. 13-14, 23. 27

28 1 The complaint incorrectly cites the California Business & Professions Code. ECF No. 1 at 42. 1 Defendant has not responded to either motion or made any appearance in this case, including at 2 the hearing held on December 3, 2025. 3 II. Motion for Class Certification 4 In light of the defendant’s failure to appear, plaintiff seeks only certification of a 5 redefined, limited version of the complaint’s “California Class” (“Default Class”). Plaintiff’s 6 motion defines the Default Class as those who bought defendant Products2 within California from 7 a Whole Foods, Costco, Walmart, Target, Ralphs, Erewhon, Safeway, Lucky Supermarkets, 8 Raley’s, Sprouts, or Vons, or via DoorDash or Instacart delivery (“Class Retailers”). ECF No. 9 14-1 at 3. As in the complaint, such purchase must have occurred within the three-year statute of 10 limitations under the FAL and CLRA, and the four-year statute of limitations under the UCL, 11 both calculated from the complaint’s September 12, 2024, filing date. Id. 12 A. Legal Standard 13 Class action litigation is “an exception to the usual rule” that only individual named 14 parties bring and conduct lawsuits. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011) 15 (citation and internal quotation marks omitted). Only if a class action “promot[es] ... efficiency 16 and economy of litigation,” should a motion for certification be granted. Crown, Cork & Seal Co. 17 v. Parker, 462 U.S. 345, 349 (1983). In evaluating a motion for class certification, a court 18 considers whether class litigation promotes “economies of time, effort, and expense, and ... 19 uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or 20 bringing about other undesirable results.” Fed. R. Civ. P. 23(b)(3) advisory committee’s note to 21 1966 amendment. 22 Class certification is governed by Federal Rule of Civil Procedure 23. “In determining the 23 propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a 24 cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are 25 met.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974). “[I]t is well established that for 26 2 At the December 3, 2025 hearing on this motion, Plaintiff asserts that the Products in the 27 complaint are examples and not an exhaustive list of the Products whose purchase would qualify a customer as a member of the Default Class. Plaintiff also conceded, however, that not every 28 defendant product includes a nutrient content claim that violates the FAL, UCL, or CLRA. 1 purposes of class certification, the moving party does not need to establish a likelihood of 2 prevailing on the merits.” McKenzie v. Fed. Exp. Corp., 275 F.R.D. 290, 297 (C.D. Cal. 2011). 3 Under Rule 23(c)(5), for purposes of certification, a subclass is treated exactly like a class. To be 4 certified, a putative class must meet the threshold requirements of Rule 23(a) and the 5 requirements of one of the subsections of Rule 23(b), which defines three types of classes. Leyva 6 v. Medline Indus. Inc., 716 F.3d 510, 512 (9th Cir. 2013).3 7 Rule 23(a) sets forth the following prerequisites required for any class: (1) the class is so 8 numerous that joinder of all members is impracticable; (2) there are questions of law or fact 9 common to the class; (3) the claims or defenses of the representative parties are typical of the 10 claims or defenses of the class; and (4) the representative parties will fairly and adequately protect 11 the interests of the class. Fed. R. Civ. P. 23(a); Hanon v. Dataproducts Corp., 976 F.2d 497, 508 12 (9th Cir. 1992). These requirements are referred to as numerosity, commonality, typicality, and 13 adequacy. In re Live Concert Antitrust Litig., 247 F.R.D. 98, 105 (C.D. Cal. 2007). Once 14 subdivision (a) is satisfied, the party seeking certification must demonstrate that the action falls 15 into one of three categories under Rule 23(b). In re Adobe Sys., Inc. Sec. Litig., 139 F.R.D. 150, 16 153 (N.D. Cal. 1991). 17 The party seeking class certification bears the burden of demonstrating that the 18 requirements of Rule 23(a) and (b) are satisfied by a preponderance of the evidence. Olean 19 Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 665 (9th Cir. 2022); 20 United Steel, Paper & Forestry, Rubber, Mfg. Energy, Allied Indus. & Serv. Workers Int’l Union, 21 AFL-CIO, CLC v. ConocoPhillips Co., 593 F.3d 802, 807 (9th Cir. 2010). Rule 23 embodies 22 more than a “mere pleading standard.” Wal-Mart Stores, Inc., 564 U.S. at 350. The moving 23 party must “prove that there are in fact sufficiently numerous parties, common questions of law or 24 fact, etc.” Id. In other words, “plaintiffs wishing to proceed through a class action must actually 25 prove—not simply plead—that their proposed class satisfies each requirement of Rule 23.” 26 Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 275 (2014) (emphasis in original). 27

28 3 Plaintiff seeks to certify a Rule 23(b)(3) class. ECF No. 14-1 at 13. 1 The court must verify the putative class’s “actual, not presumed, conformance with Rule 2 23(a) ....” Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 160 (1982). This inquiry may 3 overlap with consideration of the merits of the plaintiffs’ substantive claims. Wal-Mart Stores, 4 Inc., 564 U.S. at 351–52. Indeed, “a district court must consider the merits if they overlap with 5 the Rule 23(a) requirements.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 6 2011). 7 B. Analysis 8 1. Requirements Under Rule 23(a) 9 a. Numerosity 10 Fed. R. Civ. P. 23(a)(1) provides that numerosity exists if “the class is so numerous that 11 joinder of all members is impracticable.” The question becomes how plaintiff can identify class 12 members, and therefore prove numerosity, without propounding discovery on a defaulting 13 defendant. 14 Plaintiff concedes that defendant’s failure to appear renders her motion atypical, but 15 argues that class certification has occurred under such circumstances. ECF No. 14-1 at 2. 16 Plaintiff relies on Whitaker v. Bennett Law, PLLC, Case No. 13–cv–3145–L (S.D. Cal.), an 17 action brought under the Telephone Consumer Protection Act (“TCPA”). In Whitaker, which 18 presented the class certification issue in a default context, the court certified a class defined as:

19 All persons within the United States who received any telephone call from Defendant or their agents to said person's cellular telephone 20 through the use of any automatic telephone dialing system or with an artificial or prerecorded voice who did not provide prior express 21 consent during the transaction that resulted in the debt owed, within the four years prior to the filing of the Complaint in this act. 22 23 2014 WL 5454398 at *4, 2014 U.S. Dist. LEXIS 152099 at *8 (S.D. Cal. Oct. 27, 2014). The 24 court reasoned that even without discovery propounded on the defaulting defendant, the plaintiff 25 provided “a reasonable basis to believe that a class actually exists” and that their identity “could 26 be specifically determined via discoverable access to” defendant information. Id. Although the 27 plaintiff could not identify other members of this class without such discovery, she did present 28 complaints about the defendant on online forums as evidence that thousands of people had been 1 affected by similar TCPA violations. Id., 2014 WL 5454398 at *4, 2014 U.S. Dist. LEXIS 15209 2 at *9-*10. 3 Plaintiff suggests a similar discovery method here to identify members of the Default 4 Class following entry of default judgment. ECF No. 14-1 at 3. The Class Retailers at issue 5 maintain detailed records of each purchase and purchaser of any item, including defendant’s 6 Products, and a Pennsylvania court ordered production of such information in another class 7 action. ECF No. 14-1 at 6, n.3 (citing Farneth v. Wal-Mart Stores, Inc., Case No. GD-13-011472, 8 2017 Pa. Dist. & Cnty. Dec. LEXIS 2259 at *15 (Pa. Super. Ct. Mar. 21, 2017)). Plaintiff 9 proposes using these records to identify every purchaser of Product between September 12, 2020 10 and September 12, 2024, and calculate the damages from each transaction. ECF No. 14-1 at 6-7. 11 Plaintiff’s proposed approach is inconsistent with the requirement that, to prevail on a 12 motion for class certification, a plaintiff must “actually prove—not simply plead—that [her] 13 proposed class satisfies each requirement of Rule 23.” Halliburton Co. v. Erica P. John Fund, 14 Inc., 573 U.S. 258, 275 (2014). The undersigned declines to follow the approach adopted in 15 Whitaker, in which the court appears to have accepted the allegations of the complaint as true in 16 light of defendant’s default despite the clear requirement of evidence to support all Rule 23 17 requirements. 18 As another district court has explained in rejecting a plaintiff’s reliance on Whittaker for 19 class certification in the default context: 20 In Whitaker v. Bennett L., PLLC, the plaintiff “asserted violations of the Telephone Consumer Protection Act.” No. 13-CV-3145-L NLS, 21 2014 U.S. Dist. LEXIS 152099, 2014 WL 5454398, at *1 (S.D. Cal. Oct. 27, 2014). The defendant did not appear, its default was entered, 22 and the court certified a nationwide class apparently based solely on the allegations in the complaint. 2014 U.S. Dist. LEXIS 152099, 23 [WL] at *4. The court did not explain why it determined the complaint’s allegations were sufficient for its certification analysis. 24 The court later entered default judgment on liability and directed the plaintiff to conduct discovery to determine the appropriate amount of 25 damages. Whitaker v. Bennett L., PLLC, No. 13-CV-3145-L(NLS), 2015 U.S. Dist. LEXIS 181086, 2015 WL 12434306, at *1 (S.D. Cal. 26 Jan. 26, 2015). After that discovery, there was no evidence identifying possible class members. That lack of evidence prompted 27 the court to state “the class action may have been improvidently certified because the class is not ascertainable.” Whitaker v. Bennett 28 L., PLLC, No. 13-CV-3145-L(NLS), 2016 U.S. Dist. LEXIS 1 122873, 2016 WL 4595520, at *1 (S.D. Cal. May 27, 2016). The court directed the plaintiff to establish why the class “should not be 2 decertified.” 2016 U.S. Dist. LEXIS 122873, [WL] at *2. Approximately two weeks after that order, the plaintiff voluntarily 3 dismissed her claim. Whitaker v. Bennett L., PLLC, No. 13-CV- 3145-L(NLS) (S.D. Cal. June 10, 2016). 4 The eventual outcome in Whitaker indicates that even if permissible, 5 certifying a class when a defendant is in default may not be prudent. Other courts have addressed the issue directly and determined 6 certification-by-default is inappropriate. See Sapan v. Veritas Funding, LLC, No. SACV2300468CJCADSX, 2023 U.S. Dist. 7 LEXIS 180373, 2023 WL 6370223, at *2 (C.D. Cal. July 28, 2023) (defendant in default “does not mean that mere allegations in a 8 complaint are sufficient to establish Rule 23’s class certification requirements”); Pagano v. HN & Sons LLC, No. 22-CV-4897 9 (BMC), 2024 U.S. Dist. LEXIS 197435, 2024 WL 4625296, at *1 (E.D.N.Y. Oct. 30, 2024) (“the general principle that factual 10 allegations in the complaint are deemed admitted by the defendant upon default does not apply because Rule 23 imposes an independent 11 duty on the district court to determine by order that the requirements of Rule 23(a) are met regardless of the defendant's admissions”). The 12 result reached by those other courts is convincing. The court cannot conduct a “rigorous analysis” to ensure all of Rule 23’s requirements 13 are met when it can look only to the allegations of the complaint. [Plaintiff] needs evidence beyond mere allegations. 14 15 Heidarpour v. Secured Mktg. Concepts Corp., No. CV-24-00239-PHX-KML, 2025 WL 764287 16 at *2, 2025 U.S. Dist. LEXIS 43531 at *3-5 (D. Ariz. Mar. 11, 2025). 17 The undersigned joins the Heidarpour court in rejecting the result and reasoning of 18 Whitaker, and agrees with the Heidarpour, Sapan and Pagabo courts that a defendant’s default 19 cannot relieve a plaintiff seeking class certification of the burden of proving all Rule 23 20 requirements with evidence. 21 Here, plaintiff’s showing that the proposed discovery would permit her to identify 22 sufficient class members is arguably even weaker than that in Whitaker. Plaintiff argues that the 23 class will exceed 1,000 members because the products are allegedly “sold in many different 24 grocery stores throughout California” and the “distribution and sales volume” during the class 25 period was substantial. ECF No. 14-1 at 9. These allegations are so general and conclusory that 26 they cannot support an inference of sufficient numerosity, let alone constitute proof. Plaintiff 27 provides no evidence as to whether all the Class Retailers’ locations sell defendant’s products, 28 how many such locations exist, which products have a nutrient content claim but lack a required 1 disclaimer, or how many of each such product the Class Retailers have sold. She therefore cannot 2 support even a general estimate of how many class members she would find through discovery. 3 In sum, plaintiff has not adequately demonstrated numerosity for the proposed class. 4 b. Commonality 5 Commonality exists when “there are questions of law or fact common to the class,” even 6 if not every such question is common or identical. Fed. R. Civ. P. 23(a)(2); Hanlon v. Chrysler 7 Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). Here, plaintiff argues that various facts unify all 8 class members’ claims. ECF No. 14-1 at 10. She concedes that whether each member of the 9 Default Class relied on product misrepresentations when purchasing a Product may vary. Id. She 10 also notes, however, that because the UCL, FAL, and CLRA are both governed by a “reasonable 11 consumer” test, the subjective effect on any one class member is not a relevant consideration 12 when certifying a class. ECF No. 14-1 at 10 (citing Williams v. Gerber Prods. Co., 552 F.3d 934, 13 938 (9th Cir. 2008); Hadley v. Kellogg Sales Co., 324 F. Supp. 3d 1084, 1095 (N.D. Cal. 2018)). 14 Plaintiff’s argument would have merit if it were limited to the Products outlined in the 15 complaint. The complaint only features Products that include a nutrient content claim, and the 16 complaint adequately pleads that the saturated fat in each serving exceeds the minimum threshold 17 for a disclaimer. ECF No. 1 at 11-14. At the hearing on this motion, however, plaintiff explained 18 that the featured Products were examples rather than an exhaustive list. At the same time, she 19 admits and has even submitted evidence that not every defendant product includes a nutrient 20 content claim. See ECF No. 13-2 at 10, 12. Plaintiff confusingly proposes limiting the definition 21 of qualifying Products, and therefore the class, to only those products with such a nutrient content 22 claim that also require an absent disclaimer based on the amount of select nutrients in a single 23 serving. Plaintiff effectively admits that this is a fact-based inquiry that will vary among 24 defendant customers, and that she lacks sufficient information to distinguish between them in this 25 regard. 26 //// 27 //// 28 //// 1 Accordingly, plaintiff has not adequately met the commonality requirement. 2 c. Typicality 3 Typicality requires that “the claims or defenses of the representative parties are typical of 4 the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). As such, it substantially overlaps 5 with the test for commonality. For typicality to be met, named plaintiffs’ claims must be 6 “reasonably coextensive” with the claims of the putative class, but not necessarily identical to 7 them. Hanlon, 150 F.3d at 1020. The inquiry focuses on the claims themselves, not on the 8 factual predicates from which the claims arise. Hanon, 976 F.2d at 508. “The test of typicality 9 ‘is whether other members have the same or similar injury, whether the action is based on 10 conduct which is not unique to the named plaintiffs, and whether other class members have been 11 injured by the same course of conduct.’” Id. 12 Aside from the damages plaintiff incurred based on the amounts of her specific purchases, 13 her claims under the UCL, FAL, and CLRA are identical to those of any consumer who would 14 qualify as a member of the Default Class. Assuming arguendo that the Default Class is limited to 15 those who purchased Products with a nutrient content claim but not a required disclaimer, 16 Plaintiff’s injuries are necessarily typical of those of unnamed class members. 17 d. Adequacy of Representation 18 Adequacy of representation requires that “representative parties will fairly and adequately 19 protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). For plaintiffs to adequately represent 20 the putative class members, they must demonstrate, first, that they do not possess any conflicts of 21 interest with the class members and, second, that both plaintiffs and their counsel will work to 22 “prosecute the action vigorously” with respect to the entire class. Staton v. Boeing Co., 327 F.3d 23 938, 957 (9th Cir. 2003). 24 Neither plaintiff nor counsel has presented any evidence or made any allegations to 25 suggest that they cannot adequately represent the Default Class or have any conflicts of interest 26 that would prevent them from doing so. See ECF No. 14-2 at 3. Plaintiff’s counsel Pope 27 McGlamry, P.C. is a prominent law firm with extensive experience in complex and class action 28 litigation, and thus far has vigorously prosecuted this action by seeking default and default 1 judgment. ECF Nos. 12-13; ECF No. 14-3 at 6. It appears that the named plaintiff is an adequate 2 class representative, and that Pope McGlamry could be qualified as class counsel were 3 certification otherwise appropriate. 4 e. Conclusion as to Rule 23(a) Requirements 5 Because plaintiff has failed to adequately demonstrate the numerosity of the proposed 6 class, and her proposed definition of such class frustrates any efforts to establish commonality, 7 the motion must be denied. 8 2. Requirements Under Rule 23(b)(3) 9 Because Rule 23(a) is not satisfied, the court need not address whether the questions of 10 law or fact common to all proposed class members predominate over questions affecting 11 individual members, or whether a class action is “superior to other available methods for fairly 12 and efficiently adjudicating the controversy.” ECF No. 14-1 at 15; Fed. R. Civ. P. 23(b)(3). 13 The undersigned appreciates the dilemma that plaintiff faces in proving the propriety of 14 class certification where no defendant has appeared from whom discovery may be had. However, 15 Rule 23 may not be rewritten by the court to ease that dilemma. The undersigned recommends 16 denial of the motion for class certification without prejudice to a future motion based on evidence 17 obtained through other means. 18 3. Motion for Default Judgment 19 Plaintiff moves for default judgment finding defendant liable for compensatory damages 20 to the Default Class, the exact amount of which to be determined through post-judgment 21 discovery. ECF No. 13-1 at 4, 13; see also ECF No. 14-1 at 6-7 (outlining the discovery plaintiff 22 plans to propound on Class Retailers to identify Default Class members and damages owed to 23 each member). Plaintiff also seek an injunction prohibiting defendants from using nutrient 24 content claims on Product packaging without mandatory disclosures as to adverse macronutrients. 25 Plaintiff’s motions emphasize that she seeks default judgment on behalf of the class rather than as 26 to her own damages. ECF No. 13-1 at 2, 4, 6-9, 13; ECF No. 14 at 2-3, 17. The final section of 27 her motion for class certification explicitly asks that she receive an opportunity to amend any 28 defects therein before entry of default judgment. ECF No. 14-1 at 17. Because class certification 1 is not warranted for the reasons already explained, default judgment in favor of the class is 2 presently unavailable. 3 Even if the court were to certify the class, however, default judgment would not be 4 appropriate at this time. “For any class certified under Rule 23(b)(3) . . . the court must direct to 5 class members the best notice that is practicable under the circumstances, including individual 6 notice to all members who can be identified through reasonable effort.” Fed. R. Civ. P. 7 23(c)(2)(B). In rendering any judgment in a class action, a court must “include and specify or 8 describe those to whom the Rule 23(c)(2) notice was directed, who have not requested exclusion, 9 and whom the court finds to be class members.” Fed. R. Civ. P. 23(c)(3)(B). Moreover, to 10 protect class members the court may order appropriate notice to class members on “the proposed 11 extent of the judgment.” Fed. R. Civ. P. 23(d). The language and structure of Rule 23 “thus 12 clearly contemplate[] that the notice requirement will be met before the parties are aware of the 13 district court’s judgment on the merits.” Schwarzschild v. Tse, 69 F.3d 293, 296 (9th Cir. 1995) 14 (emphasis in original). Plaintiff has offered, and the court is aware of, no authority for the 15 proposition that the Rule operates differently in the context of a default. 16 Because judgment in favor of a Rule 23(b)(3) class cannot be entered prior to the notice 17 and op-out period, default judgment would be premature even if a class were certified. See 18 Yauney v. HCI, LLC, 2024 U.S. Dist. LEXIS 215621 at *9, 2024 WL 4875377 (C.D. Cal. Oct. 3, 19 2024) (declining to grant default judgment where class certified but class members not yet 20 notified and given opportunity to opt-out); Heidarpour, 2025 WL 764287 at *2, 2025 U.S. Dist. 21 LEXIS 43531 at *5-6 (same). Accordingly, the court need not address the factors which 22 generally guide its discretion regarding entry of default judgment. See Eitel v. McCool, 782 F.2d 23 1470, 1471-72 (9th Cir. 1986). 24 CONCLUSION 25 For the reasons set forth above, IT IS HEREBY RECOMMENDED THAT: 26 1. Plaintiff’s motion for certification of the Default Class (ECF No. 14) be DENIED 27 without prejudice; and 28 2. Plaintiff’s motion for default judgment (ECF No. 13) be DENIED without prejudice. ] These findings and recommendations are submitted to the United States District Judge 2 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 3 || after being served with these findings and recommendations, any party may file written 4 | objections with the court and serve a copy on all parties. Id.; see also Local Rule 304(b). Such a 5 || document should be captioned “Objections to Magistrate Judge’s Findings and 6 || Recommendations.” Any response to the objections shall be filed with the court and served on all 7 || parties within fourteen days after service of the objections. Local Rule 304(d). Failure to file 8 | objections within the specified time may waive the right to appeal the District Court’s order. 9 | Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 10 | (9th Cir. 1991). 11 | DATED: December 16, 2025 12 thin Chane ALLISON CLAIRE 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13