Wednesday, August 5, 2020
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Court of Appeal:
Warning Sign Insulated BevMo! From ‘Bait-and-Switch’ Liability
Justice Ashmann-Gerst Says Small-Sized Type Advising That Wine Advertised on Sign Might Not Be of Same Vintage As That Which Is on Shelf Was Effective to Defeat Putative Consumers’ Class Action
By a MetNews Staff Writer
The Court of Appeal for this district yesterday upheld a determination that BevMo! does not engage in a bait-and-switch tactic, in violation of consumer protection laws, by mounting signs advertising a wine of one vintage while placing bottles of wine of a different vintage by those signs, explaining that the bottles, themselves, are not mislabeled and warnings are provided that the touted product might not be available.
Justice Judith Ashmann-Gerst of Div. Two wrote the opinion, which was not certified for publication. It affirms decisions by then-Los Angeles Superior Court Judge John Shepard Wiley Jr. (now a member of Div. Eight of this district’s Court of Appeal).
The plaintiff, Stephanie Liang, brought a putative class action against BevMo! purporting to represent two classes: online and in-store purchasers. She set forth nonstatutory causes of action and asserted breaches of the Unfair Competition Law, the False Advertising Law and the Consumer Legal Remedies Act.
Allegations of Pleading
Her first amended complaint alleges, with respect to in-store practices:
“BevMo posts display signage in its stores in front of wine bottles that describe particular wines as having a high numerical rating. But instead of filling the displays behind the signage with the wine described in the signage, BevMo fills these displays with wines from different vintages that do not have the same high ratings and are not of the same quality. These practices have misled the plaintiff and the public[.]”
The pleading avers that on Dec. 18 2014, she went to the BevMo! store in Santa Monica where she “spotted a sign that advertised a certain group of wine as the Longhand Cabernet Sauvignon from 2011.” It continues:
“She relied upon this sign and took two bottles from this section and purchased them. After she purchased these bottles, she realized that while the bottles were Longhand Cabernet Sauvignon, they were not from 2011 but from a different year.”
BevMo!’s Motions
With respect to the in-store practices, Bevmo! moved for summary adjudication, as well as a determination under Civil Code §1781(c)(3) that “[t]he action is without merit.” It pointed out:
“All wine signs displayed at the Santa Monica BevMo for the 2011 Longhand Cabernet Sauvignon contained a notice stating: ‘The vintage indicated may not be available. Please check the bottle for vintage.’ ”
Liang disclaimed having seen any such warning and, based on discovery, pointed out that the advisories on signs on the shelves are in four-point type, and signs at the ends of counters with such notices, boxed, are in five-point type. The evidence showed that the typeface used was Gil Sans MT.
The following line is in four-point type, Gil Sans MT typeface:
This is in four-point type, Gil Sans MT typeface.
The following, in the same typeface, in five-point type:
This is in five-point type, Gil Sans MT typeface.
Wiley’s View
Wiley granted both motions. He said of the warning:
“Shoppers could see it. They could read it if they cared to. The disclaimer is smaller than other text on the signs, but there is no requirement that reasonable notice be the best possible notice.”
He added:
“Reasonable consumers know ads commonly have fine print with significant information. This is common sense. Interested consumers can read the writing. Those lacking interest cannot later complain.”
Liang subsequently dropped the causes of action based on online sales, and purported to appeal Wiley’s rulings. Ashmann-Gerst noted that the orders are nonappealable, but treated the appeal as if it were from a judgment of dismissal.
Ashmann-Gerst’s Opinion
Ashmann-Gerst wrote:
“Assuming that the reasonable consumer we must analyze is a member of the general public, Liang has not shown that there is a triable issue. She does not contend that wine bottles are mislabeled, and that the vintage of particular wines is not clearly stated on their labels. Rather, she essentially contends that the disclaimer language is so small that it is hidden for all intents and purposes, that the signs falsely describe the wines being sold, and that consumers will, for example, rely on a sign representing that a wine is a 2011 vintage even though its label states it is a 2012 vintage.”
She continued:
“An examination of the in-store signs reveals that the boxed disclaimer on the 8.5 x 11 sign is easily readable, and the box draws attention to it. The disclaimer on the shelf signs is much smaller but, once again, it has a box around it that draws a consumer’s attention. The signs are not false; there is no evidence that if they advertise a 2011 wine that the description of that 2011 wine is inaccurate. At most, the signs imply that the wines immediately adjacent are the advertised wines. But this is not misleading because consumers are told to check each bottle for the vintage. Finally, we do not accept that a reasonable consumer will read an in-store sign that contradicts the label on a wine and believe, for example, that a wine labeled as a 2012 vintage is instead the advertised 2011 vintage. And no reasonable consumer would think that a wine critic’s score of a 2011 vintage applies to a wine with a different vintage.”
The jurist went on to say:
“Liang notes that federal courts have been skeptical of disclaimers, particularly if they provide contradictory messages….Here, there is nothing confusing or contradictory about the message that a consumer should check the vintage.”
The case is Liang v. BevMo! , B296874.
Scott C. Glovsky and Ari Dybnis of the Pasadena Law Offices of Scott C. Glovsky represented Liang. for Plaintiff and Appellant. Kaye Scholer, Sean M. SeLegue, Douglas A. Winthrop and Alex Beroukhim of Arnold & Porter acted for BevMo!
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