Filed 8/4/20 Liang v. BevMo CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

STEPHANIE LIANG,

Plaintiff and Appellant,

v.

BEVMO!,

Defendant and Respondent.

B296874

(Los Angeles County

Super. Ct. No. BC567785)

APPEAL from a judgment of the Superior Court of Los Angeles County. John Shepherd Wiley, Jr., Judge. Affirmed.

Law Offices of Scott C. Glovsky, Scott C. Glovsky and Ari Dybnis for Plaintiff and Appellant.

Arnold & Porter Kaye Scholer, Sean M. SeLegue, Douglas A. Winthrop and Alex Beroukhim for Defendant and Respondent.

_________________________

Stephanie Liang (Liang) filed a class action alleging statutory and common law causes of action asserting, inter alia, that Bevmo! (BevMo) displays misleading in-store signs. The trial court found that the in-store signs were not misleading and granted BevMo’s motion for summary adjudication, and also its parallel motion pursuant to Civil Code section 1781, subdivision (c)(3) for a determination that Liang’s Consumer Legal Remedies Act (CLRA) claim lacked merit. Liang purports to appeal from these two orders even though they are nonappealable. But, as we discuss, we exercise our discretion to reach the merits by deeming the appeal to be from a final judgment of dismissal. We find no error and affirm.

FACTS

In Liang’s first amended complaint (FAC), she alleged class causes of action for: (1) violation of the CLRA; (2) violation of Business and Professions Code section 17200; (3) violation of Business and Professions Code section 17500; (4) negligent misrepresentation; and (5) declaratory relief as to whether BevMo violated the CLRA and Business and Professions Code sections 17200 and 17500. Liang complained that BevMo engaged in a bait and switch scheme online and in its stores. With respect to the in-store practices, the FAC alleged: “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 FAC identified two classes. Class one was all Californians who purchased wine from BevMo’s online store. Class two was all Californians who purchased wine from BevMo’s retail stores.

To establish herself as a class representative, Liang alleged that she purchased two bottles of 2011 Longhand Cabernet Sauvignon from BevMo’s online store on December 17, 2014. The next day, she went to BevMo’s Santa Monica store and was given two bottles from a different year. During the same trip, she “spotted a sign that advertised a certain group of wine as the Longhand Cabernet Sauvignon from 2011. 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.”

In March 2016, BevMo filed a motion for summary adjudication regarding all causes of action as they related to Liang’s in-store signs, and a motion under Civil Code section 1781 for a determination that the CLRA claim lacked merit as to the in-store signs. The separate statements submitted in support of each motion asserted, “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.’” BevMo argued that, as a matter of law, its in-store signs are not misleading to a reasonable customer because they provide clear, unambiguous disclaimers that customers should check the vintage on wine bottles because the vintages advertised might not be available.

BevMo supported its motions with a declaration from Sarah Hartle (Hartle), who had served as the District Manager for Los Angeles since 2011. Hartle’s district included the Santa Monica BevMo. She submitted exemplars of the signs BevMo used in all its stores, and each one of them contained the disclaimer. She declared that “[w]ines that are located on aisle shelves are displayed with a sign that measures 2 inches by 3.5 inches[.]” Larger signs measuring 8.5 x 11 are “located in more prominent positions” on the end of shelves and on free-standing displays.

In her opposition papers, Liang declared that she did “not believe” that BevMo’s signage exemplars were the same signs she saw in 2014 and stated, “I remember reading a rating for the 2011 Longhand Cabernet Sauvignon and these [exemplars] do not contain any rating information.” Liang also asserted that she had “no memory of seeing the disclaimer box or language contained within it that is found on the four” sample signs supporting BevMo’s motion. In her statement of additional facts, Liang stated, “Disclaimers that are on shelf signs are size 4 font while disclaimers on the box signs are font size 5. The size of the Brand, Name and Vintage on the shelf [signs] is 12, the description and ratings on the shelf signs is font size 9 and the price is 30. On the box signs the size of the Brand, Name and Vintage is 34, the description and ratings . . . is font size 24, and the size of [the] price is 72. On these signs the brand, name, and price are all bold while the other information is not.” This statement of fact was supported by: (1) the deposition testimony of BevMo employee Kenneth Schiff who explained that font sizes on BevMo signs have stayed the same since 2010 and (2) a data map produced by BevMo in discovery showing the font sizes and stating that the font type is Gil Sans MT.

In response to the opposition, BevMo tasked David Bock (Bock), one of its corporate consultants, to “recreate the wine tags/signs for the 2011 Longhand Cabernet Sauvignon from the closest print queue date prior to December 18, 2014.” He was able to do so. Prior to the hearing on the motions, the parties appeared before the trial court to discuss how to proceed with the new evidence. Counsel for BevMo stated that he planned to withdraw its motions and refile them. To avoid delay, counsel for Liang stipulated to allowing BevMo to file additional evidence and then file its reply as previously scheduled. The court agreed to this procedure, and it told Liang’s counsel, “[I]f you look at the reply, and you think that somehow you’ve been disadvantaged by this procedure, go ahead and post a joint statement with BevMo that you are exercising a right to sur-reply, and then there will be a surrebuttal[.]” The trial court explained that it wanted to “ensure procedural fairness here.”

Subsequently, BevMo submitted Bock’s declaration. It had two exhibits. Exhibit A was an 8.5 x 11 sign and Exhibit B was a shelf sign.

The 8.5 x 11 sign advertises a deal providing that if a customer buys one wine, the second bottle will be 5 cents. In large, bolded font, it states: “LONGHAND CABERNET SAUVIGNON ALEXANDER VALLEY ’11.” In a smaller font, the description of the wine provided: “93 PTS WILFRED WONG. An absolute stunner, the exotic and enticing ’11 Longhand Cabernet breaks the mold; textured and complex; shows plums, boysenberries and dried orange peel.” Next, in a large, bolded font, the sign provided that the price of the first bottle of wine was $29.95 and the price of the second bottle of wine was 5 cents. In a small font at the bottom of the page the disclaimer appeared inside a rectangular box. The shelf sign contained the same information, but the font sizes were smaller.

BevMo filed its reply brief. Liang chose not to file any responsive papers.

On April 13, 2017, the parties convened for oral argument. After hearing from the parties, the trial court granted the motions. In its written ruling, it stated that “Liang’s causes of action require her to show BevMo’s displays would mislead a reasonable consumer” but Liang failed to make that showing because “[t]he disclaimer on the 8.5 by 11 inch signs is amply visible and simply worded. A box around the disclaimer highlights it. The same is true of shelf signs, which are smaller to fit the small edge of a wine shelf.” The trial court noted that the vintage notice, or “disclaimer,” “is on the front of all of BevMo’s signs. 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.” It concluded that “[r]easonable 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.”

Months later, Liang asked the trial court to dismiss her online claims with prejudice. On January 30, 2019, the court signed and filed a dismissal of the online claims. Subsequently, on March 28, 2019, Liang filed a “Notice of Appeal of Decision and Order of the Court Granting Defendant’s Motion for Summary Adjudication and Motion for No-Merits Determination.” It provided that Liang “appeals to the Court of Appeal . . . from Los Angeles Superior Court Judge John Shepherd Wiley Jr.’s April 13, 2017 order granting [BevMo’s] motions for summary adjudication and for a no-merits determination.” Also, the notice stated that the trial court’s January 30, 2019, order dismissing the online claims is appealable.

DISCUSSION

I. Appealability.

Code of Civil Procedure section 904.1, subdivision (a) provides that an appeal may be taken from a judgment or specified rulings. It does not permit a party to appeal from an order granting summary adjudication or an order determining that a CLRA cause of action lacks merit. As a result, Liang’s purported appeal from the April 13, 2017, orders must be dismissed (People v. Pritchett (1993) 20 Cal.App.4th 190, 192) unless there is a path that permits us to exercise appellate jurisdiction.

In the notice of appeal from the April 13, 2017, orders, Liang suggests that the trial court’s January 30, 2019, order dismissing the online claims is appealable. Next, in her opening brief, Liang cites case law establishing that “‘“‘appellate courts treat a voluntary dismissal with prejudice as an appealable order if it was entered after an adverse ruling by the trial court in order to expedite an appeal of the ruling.”’”’” (Flowers v. Prasad (2015) 238 Cal.App.4th 930, 935.) We are not persuaded. The class claims pertaining to the in-store signs have never been dismissed.

We conclude, however, that we can reach the merits. This case bears a similarity to McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 278 (McAllister). There, the appellant appealed from an order sustaining a demurrer without leave to amend even though the action had never been dismissed. The court noted that it “‘may deem an order sustaining a demurrer to incorporate a judgment of dismissal.’ [Citation.]” It then stated, “In this case, the matter is . . . briefed and no party has raised an objection to consideration of the appeal on its merits. To the contrary, [respondent] points out that ‘all parties have treated the subject Order as the final act of the Trial Court and therefore appealable.’” (Ibid.) To prevent delay, the court deemed the order sustaining the demurrer to incorporate a judgment of dismissal and interpreted the notice of appeal as applying to that dismissal. (Ibid.)

We opt to follow the lead of McAllister. BevMo has not objected to consideration of the appeal on the merits, and the parties have treated the January 30, 2019, dismissal of the online claims as the trial court’s final act. It is therefore expedient and efficient to deem the voluntary dismissal of the online claims to incorporate an involuntary dismissal of the in-store claims, and to interpret the notice of appeal as applying to a final judgment of dismissal.

II. Standard of Review.

We employ de novo review when a trial court grants summary adjudication. (Supervalu, Inc. v. Wexford Underwriting Managers, Inc. (2009) 175 Cal.App.4th 64, 71 (Supervalu).) “To assess the record for error, we utilize a three-step analysis: ‘First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue. [Citation.]’ [Citation.]” (Ibid.)

III. Procedural Issues.

Liang contends that the motion for summary adjudication was procedurally defective because: (1) it did not seek to dispose of entire causes of action; and (2) BevMo did not reference the relevant in-store signs in the separate statement. We perceive no procedural basis to reverse.

A. Entire Causes of Action.

Every cause of action alleges wrongful conduct pertaining to online and in-store advertising but the motion for summary adjudication did not address the online claims. As a result, Liang argues that the motion did not comport with the requirement in Code of Civil Procedure section 437c, subdivision (f) that a motion for summary adjudication must dispose of an entire cause of action. But, at Liang’s request, the online claims were dismissed with prejudice. A reversal would revive only the in-store claims. Thus, as to the online claims, we cannot afford Liang any relief and those claims are moot. (Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 132.) As to the in-store claims, there would be no miscarriage of justice, i.e., no reasonable probability of a different result absent the alleged error, unless there are triable issues and the claims should go to trial. (Berardi v. Superior Court (2007) 149 Cal.App.4th 476, 493.) We explain in Discussion section IV, post, that there are no triable issues as to the merits of the in-store claims.

Regardless, the online claims and in-store claims represent different causes of action under Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1853–1855. Though they were pleaded together in every cause of action, they involve separate and distinct wrongful acts, damages and classes. Consequently, the trial court was permitted to summarily adjudicate the in-store claims. (Ibid.)

B. The Separate Statement.

Liang adverts to the holding in United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337 (United Community Church) that if “‘[i]t is not set forth in the separate statement, it does not exist.’” Then she argues that the trial court violated this rule when it considered the evidence of the in-store signs that she agreed BevMo could use to supplement its motion because that evidence was not referenced in the original separate statement. This argument must be rejected on multiple grounds. First, United Community Church is not binding on us, and we conclude that the more reasonable rule is that a trial court has discretion, within the bounds of due process, to consider new evidence not in the separate statement. (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 171, 1190.) Here, Liang had notice and an opportunity to respond, so she was given due process (Horn v. County of Ventura (1979) 24 Cal.3d 605, 612 [“Due process principles require reasonable notice and opportunity to be heard”]) and the trial court did not abuse its discretion. Second, if there was error, Liang is estopped from arguing it because she induced BevMo and the trial court to rely on her agreement to allow the new evidence. (Geffcken v. D’Andrea (2006) 137 Cal.App.4th 1298, 1312 [“‘“Where a party by his conduct induces the commission of error, he is estopped from asserting it as a ground for reversal” on appeal. [Citation.]’”]) Third, she waived any objection by not asserting it below. (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3 [“arguments not asserted below are waived and will not be considered for the first time on appeal”].)

IV. Substantive Issues.

Liang contends that there is a triable issue as to whether BevMo’s in-store signs are misleading.

We disagree.

A. Relevant Law.

The parties do not dispute that all five causes of action are governed by the same principles.

The unfair competition law (Bus. & Prof. Code, § 17200), the false advertising law (Bus. & Prof. Code, § 17500), and the CLRA prohibit representations about products that are likely to deceive members of the public based on a reasonable consumer standard. (Shaeffer v. Califia Farms, LLC (2020) 44 Cal.App.5th 1125, 1131, 1135–1136 (Shaeffer).) Negligent misrepresentation requires justifiable reliance (Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal.App.3d 388, 402), and there cannot be justifiable reliance in the consumer context if a reasonable consumer would not have relied on the representation at issue. (Girard v. Toyota Motor Sales, U.S.A., Inc. (9th Cir. 2008) 316 Fed.Appx. 561, 562.)

“‘Likely to deceive’ implies more than a mere possibility that the advertisement might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner.” (Lavie v. Procter & Gamble Co. (2003) 105 Cal.App.4th 496, 508.) For a statement to be misleading, it must be probable that a significant portion of the general consuming public or the targeted consumers could be misled when acting reasonably in the circumstances. (Ibid.) However, a “reasonable consumer” need not be “exceptionally acute and sophisticated” nor “be wary or suspicious of advertising claims.” (Id. at pp. 508–510.) “Where the advertising or practice is targeted to a particular group or type of consumers, either more sophisticated or less sophisticated than the ordinary consumer, the question whether it is misleading to the public will be viewed from the vantage point of members of the targeted group, not others to whom it is not primarily directed. [Citation.]” (Id. at p. 512.)

Typically, whether consumers are likely to be deceived is a question of fact. (Shaeffer, supra, 44 Cal.App.5th at p. 1140.) But the issue can be decided as a matter of law if no reasonable consumer would be misled. (Hill v. Roll Internat. Corp. (2011) 195 Cal.App.4th 1295, 1301.)

B. Analysis.

Liang contends that whether the in-store signs are misleading is a question of fact. In other words, she contends that it is impossible to say that no reasonable consumer would be misled. This argument is not sufficiently developed to be cognizable because Liang has failed to identify whether the reasonable consumer we should analyze is part of the general public or a targeted group. We have no responsibility to develop an appellant’s argument. (Supervalu, supra, 175 Cal.App.4th at p. 80.)

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 clearly states it is a 2012 vintage.

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.

Plotkin v. Sajahtera, Inc. (2003) 106 Cal.App.4th 953 (Plotkin) bolsters our conclusion. The issue under review was whether a hotel misled its patrons by failing to give public notice of a $21 valet parking charge. (Id. at p. 957.) The court affirmed summary adjudication in favor of the hotel because the parking ticket gave sufficient notice of the charge and members of the public were not likely to be deceived for purposes of the unfair competition law. (Id. at pp. 957, 959, 965.) The court explained that “common sense dictates it would be unreasonable for someone availing himself of valet parking at a hotel in the Los Angeles metropolitan area, much less Beverly Hills, not to expect to pay for valet parking. The ticket provides reasonable and advance notice of the charge.” (Id. at p. 966.) As in Plotkin, common sense is a powerful defense for BevMo. It is common sense that the vintage of a wine being purchased at BevMo is the one on its label, and that this is notice the wine is not the one being advertised. Also, it is common sense to heed a warning to check a wine’s vintage.

The case Liang initially relies on, Brady v. Bayer Corp. (2018) 26 Cal.App.5th 1156 (Brady), does not support her claim that the in-store signs are misleading.

In Brady, the defendant sold a vitamin pill called One A Day that the plaintiff alleged was misleading because the miniscule print on the back label stated that users should take two a day. The Brady court concluded that the complaint stated a cause of action under the CLRA. (Brady, supra, 26 Cal.App.5th at p. 1160.) It explained that “One A Day has spent 75 years convincing the public they could be trusted to divine its vitamin needs. Most of the California consumers to whom One A Day sells have spent literally their entire lives listening to One A Day tell them, essentially, ‘Trust us. We know what you need. You will never know as much about vitamins as we do, but you can rely on us. Take one of our tablets every day and you won’t need any other supplements.’” (Id. at p. 1163, fn. omitted.) The court rejected the arguments that, as a matter of law, “consumers look at the label and decide just how much selenium, biotin, pantothenic acid and zinc they need and then make their purchase after comparing those values with the labels on the vitamin bottles.” (Ibid.)

According to Brady, the only way to affirm was to conclude that “the market for vitamins is undifferentiated, and that a hypothetical ‘reasonable consumer’ would, as a matter of law, necessarily look behind the front label of a jar of Bayer’s One A Day [vitamins] and in the course of that action would discover that not one [vitamin] but two is what the company recommends.” (Brady, supra, 26 Cal.App.5th at pp. 1163–1164.) The court could not reach that conclusion because not all reasonable consumers can be said to be alike. Some would research the best daily dosage of vitamins while others would consider the daily dosages recommended by Bayer to be acceptable. (Id. at p. 1164.)

The court proceeded to engage in a fulsome discussion of the law and its application.

When a claim of misleading labeling “runs counter to ordinary common sense or the obvious nature of the product, the claim is fit for disposition at the demurrer stage[.]” (Brady, supra, 26 Cal.App.5th at pp. 1165–1166.) For example, “the thought that Kellogg’s Froot Loops . . . contains any measurable amount of actual, nutritious fruit is an idea not to be taken seriously.” (Id. at p. 1166.)

“Literal truth can sometimes protect a product manufacturer from a mislabeling claim, but it is no guarantee.” (Brady, supra, 26 Cal.App.5th at p. 1166.) On the other hand, “there is no protection for literal falseness.” (Id. at p. 1167.)

The court recognized that qualifiers on the front of packaging can sometimes ameliorate any tendency of a label to mislead if the qualifiers are unavoidably clear. (Brady, supra, 26 Cal.App.5th at pp. 1167–1169.) But that cannot be said as a matter of law of an ingredient list on the back of packaging which contradicts rather than confirms what is implied on the front of the packaging. (Id. at p. 1168.)

Moreover, the court explained that brand names can be misleading in the context of the product being marketed, especially descriptive brand names, when they state or imply something that is false. (Brady, supra, 26 Cal.App.5th at pp. 1170–1171.)

To further explain why the plaintiff’s claim had to move past the demurrer stage, the court reasoned that, as a matter of common sense, Bayer’s One A Day brand name could not be said to indicate that two vitamins a day were required. The One A Day brand name was literally false. On top of that, the brand name was misleading. Finally, the front of the product made no attempt to warn the consumer that a one-a-day jar of vitamins is in fact full of two-a-day products; meanwhile, the truth printed on the back was in “nano type.” (Brady, supra, 26 Cal.App.5th at pp. 1172–1173.)

Brady is distinguishable on so many grounds as to render it not relevant to our analysis. It is a labeling case while Liang’s case is based on signage for one product when a different product is being sold. This case does not involve a brand name that is literally false or misleading. While Brady involved a company’s position of trust and implied expertise regarding a scientific opinion—whether its products provided sufficient amount of vitamins per day—the in-store signs at issue here represented facts related to a wine being of a certain vintage, i.e., being bottled in a certain year. There is no comparison between whether a wine was bottled in a certain year—a fact, not an opinion—versus an opinion about whether a vitamin fulfills a person’s daily needs. Also, there is no evidence in this case that BevMo has gained a position of trust with customers regarding whether a bottle of wine is of a certain vintage regardless of what a wine bottle label says. Though Liang contends that the in-store signs were literally false, the disclaimer adds a caveat that qualifies any representation; and there is no evidence the in-store signs are false with respect to the specific, unavailable product being advertised. The disclaimer is not on the back of a label of a product with a misleading brand name. It does not disavow the wine critic rating; rather, it simply advises that the vintage may not be available. Finally, Liang’s claim that the signs are misleading runs counter to the obvious nature (i.e., vintage) of the wines being sold.

Liang posits that the disclaimer language is inconspicuous in context and it is unreasonable to expect a consumer to see the language. She draws our attention to Tomek v. Apple Inc. (2016) 636 Fed.Appx. 712 (Tomek), a case in which the plaintiff sued for fraud and violation of both the CLRA and California’s unfair competition law, claiming that Apple engaged in misleading advertising. The court affirmed the dismissal on the ground that plaintiff did not allege that Apple knew it was issuing misleading advertisements. (Id. at pp. 713–714.) Tomek offers us no guidance because the court did not reach the issue of whether the advertising was misleading.

Neither are we persuaded by E. H. Morrill Co. v. State (1967) 65 Cal.2d 787, 791, a breach of implied warranty and fraud case. It involved a disclaimer of representations about site conditions in a construction contract and is not relevant to our analysis of whether the general public is likely to be deceived by BevMo’s in-store signs. McClain v. Octagon Plaza, LLC (2008) 159 Cal.App.4th 784, 796, another construction contract case cited by Liang, is similarly inapposite.

Liang notes that federal courts have been skeptical of disclaimers, particularly if they provide contradictory messages. (Adray v. Adry-Mart, Inc. (9th Cir. 1995) 76 F.3d 984, 990, as amended on rehg. den. (Feb. 15, 1996) [“some studies have suggested that disclaimers have little or no effect in preventing consumer confusion”]; Au-Tomotive Gold, Inc. v. Volkswagen of America, Inc. (9th Cir. 2006) 457 F.3d 1062, 1077 [“Courts have been justifiably skeptical of [disclaimers].”) Here, there is nothing confusing or contradictory about the message that a consumer should check the vintage.

We are urged by Liang to conclude that Klein v. Asgrow Seed Co. (1966) 246 Cal.App.2d 87, 98 (Klein) supports a reversal. It stated that “when the goods are unmerchantable, . . . it is held by our Supreme Court . . . that disclaimers are to be strictly construed against the seller.” (Ibid.) Because the case against BevMo does not involve unmerchantable goods, we fail to see how Klein is applicable. In any event, we note that there is only one way—strict or otherwise—to construe the warning to check a wine’s vintage. It means that a consumer should consult the bottle the consumer intends to purchase to determine if it is the one being advertised.

Dorman v. International Harvester Co. (1975) 46 Cal.App.3d 11 also offers Liang no reprieve. It is a contract case involving an exclusion of the implied warranty of merchantability. (Id. at pp. 17–18.) Given that it did not decide any issues pertaining to whether signs might mislead a reasonable consumer, we need not analyze it further.

A packaging case, Williams v. Gerber Products Co. (9th Cir. 2008) 552 F.3d 934, leads down the same cul-de-sac. In that case, the reviewing court held that members of the public were likely to be deceived by the label on Gerber’s Fruit Juice Snacks. The label used the words “Fruit Juice” juxtaposed with images of fruits such as oranges, peaches, strawberries, and cherries. However, the product contained no fruit juice other than white grape juice from concentrate. (Id. at p. 936.) The label stated that the product was made “‘with real fruit juice and other all natural ingredients[]’ even though the two most prominent ingredients were corn syrup and sugar.” (Ibid.) On a side panel, the product claimed to be one of “‘a variety of nutritious Gerber Graduates foods and juices.’” (Ibid.) The product was labeled as “‘a snack instead of a ‘candy’, ‘sweet’, or a ‘treat.’” (Ibid.) Finally, “the phrase ‘naturally flavored’ did not comply with applicable type size requirements.” (Ibid.) Though the district court concluded that no reasonable consumer would review the package as a whole and conclude that the product contains juice from “the actual and fruit-like substances displayed,” the reviewing court held that reasonable consumers are not expected to look beyond representations on the front of the box to discover the truth from a list of ingredients in small print on the side of the package. (Id. at p. 939.) As we have explained, the case against BevMo does not involve a misleading brand name, and it does not involve mixed packaging messages about a product’s content.

DISPOSITION

The judgment is affirmed. BevMo shall recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________________, J.

ASHMANN-GERST

We concur:

________________________, P. J.

LUI

________________________, J.

CHAVEZ