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NOT FOR PUBLICATION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

2 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.

3 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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