Drimmer

MEMORANDUM **

James Drimmer alleges that WD-40 Co. falsely markets its 2000 Flushes toilet cleaner as not harmful to plumbing or septic systems. He asserts claims for common-law negligence, false advertising in violation of California’s Unfair Competition Law (UCL), Cal. Bus. & Prof.Code § 17200 et seq., and breach of the implied warranty of fitness under California’s Song-Beverly Act, Cal. Civ.Code § 1790 et seq. Drimmer appeals the decision of the district court not to certify a class on his UCL and Song-Beverly Act claims pursuant to Rule 23 of the Federal Rules of Civil Procedure. Under Rule 23, “[a]s the party seeking class certification, [Drimmer bore] the burden of demonstrating that [he] met each of the four requirements of Rule 23(a) and at least one of the requirements of Rule 23(b).” Zinser v. Accufix Research Institute, Inc., 253 F.3d 1180, 1186 (9th Cir.2001) (citation omitted).

The four prerequisites to class certification set forth in Rule 23(a) are generally described as (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy. See Fed.R.Civ.P. 23(a). The district court found that Drimmer’s claim did not satisfy the commonality, typicality, and adequacy…

dissenting:

I respectfully dissent.

The district court concluded that Drim-mer did not satisfy Rule 23(a)(4)’s requirement that representative parties fairly and adequately protect the interests of the class. The district court based its finding on two factors: “the combination of a personal relationship [and] landlord-tenant relationship” between Drimmer and his attorney, and Drimmer’s “inexplicable disinterest in pursuing all remedies available to him.” However, the court stated that “any one factor would not disqualify Drim-mer.”

Drimmer seeks restitution against WD-40 in the form of a refund of the purchase price of 2000 Flushes. He does not seek recovery of the cost of repairing damage to class members’ toilets resulting from the use of 2000 Flushes. The district court believed that this evinced a conflict between Drimmer and members of the class *222 whose toilets had been damaged and who could potentially obtain monetary damages as a result.

Because a UCL claim is equitable in nature, prevailing plaintiffs are generally limited to injunctive relief and restitution; damages cannot be recovered. In re Tobacco II Cases, 46 Cal.4th 298, 312 , 93 Cal.Rptr.3d 559 , 207 P.3d…