FILED
NOT FOR PUBLICATION
OCT 8 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICKY WISDOM, individually and on No. 19-55742
behalf of similarly situated individuals,
D.C. No.
Plaintiff-Appellant, 2:18-cv-04078-DSF-SS
v.
MEMORANDUM*
EASTON DIAMOND SPORTS, LLC, a
Delaware limited liability company,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted October 5, 2020**
Pasadena, California
Before: KLEINFELD, HURWITZ, and BRESS, Circuit Judges.
Ricky Wisdom brought a putative class action against Easton Diamond Sports,
LLC, alleging that an Easton bat he purchased weighed more than its label stated. The
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
proposed class was all who “purchased any model(s) of Easton baseball bat(s) from
Easton or a retailer, where such bats were purchased in new condition and were
labeled as being a lighter weight than they actually were.” The district court struck
Wisdom’s class allegations under Fed. R. Civ. P. 12(f). A motions panel granted
Wisdom’s request to allow this interlocutory appeal.
We review the district court’s order for abuse of discretion. Kamm v. Cal. City
Dev. Co., 509 F.2d 205, 210-11 (9th Cir. 1975). Although a district court has
discretion to limit pre-certification discovery, it abuses this discretion if it
unreasonably deprives the plaintiff of an opportunity to develop his claims through
discovery. Davidson v. O’Reilly Auto Enters., LLC, 968 F.3d 955, 963 (9th Cir.
2020). The district court struck Wisdom’s class allegations on the pleadings, on the
grounds that common questions either did not exist, or did not predominate over
questions affecting individual class members. This determination was premature, and
thus an abuse of discretion.
Wisdom’s class allegations for unjust enrichment were sufficient to warrant
more discovery on whether class treatment is appropriate. Wisdom alleged that all of
the mislabeled bat models were mislabeled in similar ways, causing similar injury to
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every member of the class. Depending on how discovery unfolds, it may become
clear that the consequences of using a mislabeled bat, the value to a consumer of
buying a correctly labeled bat, and the degree to which Easton was unjustly enriched
through mislabeling are issues susceptible to class treatment under Rule 23. At this
early stage, it was premature for the lower court to conclude that individual questions
predominate.
Wisdom’s class allegations for violations of California’s False Advertising Law
(“FAL”), Cal. Bus. & Prof. Code § 17500 et seq., and Unfair Competition Law
(“UCL”), id. § 17200 et seq., also warranted more discovery. Whether a business
practice is deceptive or misleading under the FAL and UCL is governed by the
reasonable consumer test, which requires a probability that a significant portion of the
general consuming public or of targeted customers, acting reasonably, could be
misled. Moore v. Mars Petcare US, Inc., 966 F.3d 1007, 1017 (9th Cir. 2020) (citing
Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016)). Individualized proof of
reliance and injury is not required. Pulaski & Middleman, LLC v. Google, Inc., 802
F.3d 979, 985–86 (9th Cir. 2015). The district court’s ruling that individual questions
predominate was therefore premature.
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The district court struck Wisdom’s class allegations without granting him leave
to amend. Dismissal without leave to amend is not appropriate unless it is clear that
amendment would be futile. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048,
1052 (9th Cir. 2003). Amendment would not necessarily be futile, as Wisdom could
narrow the class and define it to cover a more specific subset of purchasers, if
appropriate. The district court should therefore have granted Wisdom leave to amend.
As discovery unfolds, it may become clear that individual questions
predominate, or that the proposed class does not satisfy the other requirements for
class treatment. But more class discovery is required to make this determination, even
as the district court retains discretion to impose reasonable limits on discovery.
VACATED and REMANDED.
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