White v. The Kroger Co.

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 PHILLIP WHITE, 10 Case No. 21-cv-08004-RS Plaintiff, 11 v. ORDER GRANTING MOTION FOR 12 SUMMARY JUDGMENT THE KROGER CO., et al., 13 Defendants. 14

15 16 I. INTRODUCTION 17 In this putative class action, named plaintiff Phillip White contends that sunscreen products 18 sold by defendant The Kroger Co. under its “house brand,” are misleadingly labeled as “reef 19 friendly,” when they in fact contain ingredients with the potential to damage reefs. White alleges 20 he purchased one specific product, Kroger® Sport Sunscreen, Spray, SPF 50, in a 5.5-oz package. 21 White also seeks relief, however, with respect to more than a dozen other products, which he 22 acknowledges he never purchased, but which he alleges are “substantially similar” to the 23 purchased product. 24 Defendant Fruit of the Earth, Inc. (“FOTE”) is alleged to be “one of the owners, 25 manufacturers, and/or distributors” of the products listed in the complaint as misleadingly labeled. 26 The undisputed evidence, however, is that FOTE did not manufacture, distribute, or have any 27 connection with the purchased product. FOTE is the manufacturer of four of the other products 1 Arguing that White has no standing to pursue any claim against it, FOTE seeks summary 2 judgment. Pursuant to Civil Local Rule 7-1(b), the motion is suitable for disposition without oral 3 argument, and the hearing set for June 16, 2022, is vacated. The motion will be granted. 4 5 II. LEGAL STANDARD 6 Summary judgment is proper “if the pleadings and admissions on file, together with the 7 affidavits, if any, show that there is no genuine issue as to any material fact and that the moving 8 party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The purpose of summary 9 judgment “is to isolate and dispose of factually unsupported claims or defenses.” Celotex v. 10 Catrett, 477 U.S. 317, 323-24 (1986). The moving party “always bears the initial responsibility of 11 informing the district court of the basis for its motion, and identifying those portions of the 12 pleadings and admissions on file, together with the affidavits, if any, which it believes demonstrate 13 the absence of a genuine issue of material fact.” Id. at 323 (citations and internal quotation marks 14 omitted). If it meets this burden, the moving party is then entitled to judgment as a matter of law 15 when the non-moving party fails to make a sufficient showing on an essential element of the case 16 with respect to which he bears the burden of proof at trial. Id. at 322-23. The non-moving party 17 “must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). 18 The non-moving party cannot defeat the moving party’s properly supported motion for 19 summary judgment simply by alleging some factual dispute between the parties. To preclude the 20 entry of summary judgment, the non-moving party must bring forth material facts, i.e., “facts that 21 might affect the outcome of the suit under the governing law . . . . Factual disputes that are 22 irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 23 247-48 (1986). The opposing party “must do more than simply show that there is some 24 metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 25 574, 588 (1986).

26 27 1 III. DISCUSSION 2 FOTE has presented evidence that it has nothing to do with the manufacture or distribution 3 of the product White purchased, Kroger® Sport Sunscreen, Spray, SPF 50, in a 5.5-oz package. 4 White does not argue otherwise, or contend there is any triable issue of fact on that point.1 The 5 sole basis of White’s opposition is his contention that the court already decided to postpone until 6 the class certification stage the question of whether White may properly serve as the class 7 representative for products that he did not purchase, but which other putative class members did. 8 Indeed, the order denying Kroger’s motion to dismiss (to which FOTE was not a party) declined 9 to dismiss or strike allegations in the complaint asserting claims arising from products White did 10 not purchase. 11 FOTE is not in the same position as Kroger, however. In Kroger’s case, it was undisputed 12 (at least at the pleading stage) that Kroger sells all of the listed products and is therefore 13 potentially liable for misrepresentations made in connection with sales of those product. Whether 14 White may serve as the class representative as to unpurchased products is a question for another 15 day. FOTE, in contrast, does not manufacture, distribute, or sell the product White purchased. 16 FOTE does not even have potential liability to White, or to any putative class member, for any 17 misrepresentations in the sale of that product. 18 Nor is there a question that more appropriately should be adjudicated at the class 19 certification stage. As to the claims against Kroger, the alleged “substantial similarity” among all 20 the challenged products it sells either will or will not be sufficient to give White a right to 21 represent the class as to products he did not personally purchase. There are no putative class 22 members, however, who have claims against FOTE arising from sales of Kroger® Sport 23 Sunscreen, Spray, SPF 50, in a 5.5-oz package. “Substantial similarity” is therefore irrelevant. 24

25 1 White complains that his ability to obtain full discovery has been constrained as a result of this 26 motion having been brought so early in the litigation. The topics he suggests require further investigation, however, relate to class certification and/or the merits, and do not call into question 27 FOTE’s lack of connection to the purchased product. 1 As noted, FOTE apparently does manufacture and distribute some of the other products 2 || listed in the complaint. Given the basis on which summary judgment is being granted, this order 3 and any final judgment resulting from it will not have a preclusive effect should any putative class 4 || members who purchased those products seek to name FOTE as a defendant with respect to those 5 || products, either as newly named plaintiffs in this action or in a separate action.” Nevertheless, 6 || FOTE’s motion for summary judgment must be granted at this juncture. If the parties believe entry 7 of a separate judgment under Rule 54(b) is appropriate at this time, they may propose one. 8 9 || ITISSO ORDERED. 10 11 Dated: June 10, 2022 a (12 RICHARD SEEBORG 13 Chief United States District Judge

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Z 18 19 20 21 22 23 24 25 26 || 7 Even White himself might not be barred by claim preclusion issues from bringing such a claim, but at this point he could not purchase any of the other products listed in the complaint and still 27 plausibly allege he was misled. 28 CASE No. 21-cv-08004-RS