I don't know whether Justice Codrington had anything to do with the timing of these two opinions, but it was certainly intriguing.
This morning, the Court of Appeal released the first opinion. Here's the first paragraph of that opinion, which recounts quite concisely what the opinion is about:
"After David Salazar bought Target Corporation’s White Baking Morsels incorrectly thinking they contained white chocolate, he filed this class action against Target for false advertising under various consumer protection statutes. The trial court sustained Target’s demurrers without leave to amend, finding as a matter of law that no reasonable consumer would believe Target’s White Baking Morsels contain white chocolate. We disagree, in large part because the White Baking Morsels’ price tag describes them as “WHT CHOCO,” which could lead a reasonable consumer to reasonably believe that they contain white chocolate. We therefore reverse."
There's 17 more pages of text (plus pictures!) that follow, but you get the basic point. The packaging appears to show something that looks darn similar to white chocolate, and then the price tag says "WHT CHOCO" on it, so, yeah, a reasonable consumer might perhaps think that the thing contains chocolate.
That opinion was published relatively early in the day. I read it. Sounds totally plausible.
Then, at 4:00 p.m. or so, the second opinion gets published. That one's also brought by Mr. Salazar. This time, against Walmart. It's another product that's (allegedly) packaged to look like white chocolate -- in this case, something called "White Value White Baking Chips." The opinion yet again contains photos of the packaging. Moreover, some of the paragraphs in this second opinion are lifted verbatim from the first opinion. (It's the same appellate panel, the same trial judge, and the same plaintiff's counsel in each case.)
But here's the rub: In the second case, there's no price tag -- or anything else -- that says "WHT CHOCO" or anything like it. Something that the first opinion says "in large part" was the basis for the holding there.
So the second case comes out the other way, right?
Nope. Same way. Reasonable consumer might be confused. Reversed.
Were I to be a big believer in conspiracies -- and, to be clear, I'm not -- I'd have thought that Justice Codrington deliberately published the first opinion first as a way of easing into the second. Lead with the easier case and then use that one to justify the same result in the harder one.
'Cause there was a meaningful time gap between the publication of those two opinions.
But, being the non-tin-foil-hat-wearer that I am, I suspect there's a much more mundane explanation lurking somewhere about.
In either case, reasonable minds might be confused. So it gets past the demurrer stage and, most likely, settles. Probably not for a lot. But at least for a little.
