44 Cal.App.5th 1103
Cal. Ct. App.2020Background
- Public Storage ran a long‑standing "$1 first month" promotion advertised across TV, internet, banners, radio and partners; ad wording varied and sometimes used asterisks noting fees/taxes/restrictions.
- Between March 6, 2011 and February 8, 2016 Public Storage applied the $1 rate to 650,296 rentals; customer experience varied (40% reserved online, 33% walk‑ins; 57% received confirmatory emails; 69% bought locks from Public Storage; 86.7% bought Public Storage insurance).
- Plaintiffs (named customers) sued under the Unfair Competition Law and False Advertising Law seeking restitution, alleging the $1 ads were deceptive because customers ultimately paid more due to an account fee, lock/insurance purchases, or pro‑rata/next‑month billing.
- Plaintiffs proposed a class defined as all California tenants who rented under the $1 special and paid more than $1 for first month for listed reasons.
- The trial court denied class certification, finding common issues did not predominate because (a) many class members may never have been exposed to the $1 advertisements and (b) the advertisements were non‑uniform and some contained disclosures that prevented deceptiveness.
- The Court of Appeal affirmed, holding plaintiffs must show exposure and deceptiveness are susceptible of common proof and substantial evidence supported the trial court’s findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs seeking restitution must prove class members were exposed to the alleged advertising | Tobacco II allows class treatment for long‑running campaigns; plaintiffs need not identify which specific ad each member saw | Exposure is necessary: a person not exposed cannot have been deceived or have paid because of the ad | Yes—exposure must be shown and be susceptible of common proof for restitutionary class certification |
| Whether plaintiffs must prove deceptiveness is susceptible of common proof when ads vary | Campaign presents a pervasive common theme that misleads; specific ad uniformity not required | Variations and affirmative disclosures in many ads defeat common proof of deceptiveness | Yes—deceptiveness must be susceptible of common proof; non‑uniform ads defeat predominance |
| Whether Tobacco II eliminated exposure/deception requirements for class certification | Tobacco II eliminated need for individualized proof of reliance for members in long campaigns | Tobacco II addressed standing of class representatives, not classwide predominance; it does not eliminate exposure/deception requirements | Tobacco II is inapposite; it does not relieve plaintiffs of proving exposure and deception for restitutionary relief |
| Whether post‑ad disclosures (emails, website, scripts) can defeat deceptiveness for class members | Post‑ad disclosures are ineffective to cure omission because consumers are already committed when disclosed | Many customers received pre‑contract disclosures (confirmatory emails, website info, required script); those disclosures can defeat deceptiveness for many members | Post‑ad disclosures defeated common proof of deceptiveness for a substantial portion of the class; this supported denial of certification |
Key Cases Cited
- Duran v. U.S. Bank National Assn., 59 Cal.4th 1 (Cal. 2014) (community‑of‑interest and predominance requirement for class certification)
- Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004 (Cal. 2012) (elements must be susceptible of common proof for predominance)
- In re Tobacco II Cases, 46 Cal.4th 298 (Cal. 2009) (standing of class representatives after Proposition 64; discussion of reliance and materiality)
- Kwikset Corp. v. Superior Court, 51 Cal.4th 310 (Cal. 2011) (material misrepresentation permits inference of reliance)
- Pfizer Inc. v. Superior Court, 182 Cal.App.4th 622 (Cal. Ct. App. 2010) (exposure required to recover restitution for alleged deceptive advertising)
- Cohen v. DIRECTV, Inc., 178 Cal.App.4th 966 (Cal. Ct. App. 2009) (no relief where consumer was not exposed to wrongful practice)
- Tucker v. Pacific Bell Mobile Services, 208 Cal.App.4th 201 (Cal. Ct. App. 2012) (classwide restitution requires measurable restitution and common proof of deception/exposure)
- Stearns v. Ticketmaster Corp., 655 F.3d 1013 (9th Cir. 2011) (disparate exposures to defendant information defeat cohesion and may preclude predominance)