Miller v. Bank of America, 152 Cal. Rptr. 3d 190

Plaintiff Miller appeals denial of class certification in Bank of America setoff case involving exempt Social Security funds.
Original 1998 suit challenged the Bank’s practice of setting off funds from accounts with exempt government deposits to cover overdrafts and fees.
2001 trial court certified a statewide class; appellate court reversed; Miller I held Kruger does not prohibit intra-account setoffs within a single account.
Supreme Court affirmed Miller I, concluding Kruger excludes only inter-account setoffs; intra-account balancing within one account is permitted.
On remand Miller sought to amend to a new two-account class; the Bank opposed, but the trial court allowed the amendment; certification motion was denied on appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Class certification prerequisites satisfied?	Miller contends the two-account class is ascertainable with common questions.	Bank argues class is overbroad and not identifiable; theory conflicts with former § 864.	Denial of certification proper; class not ascertainable.
Judicial estoppel applies to Bank's position on two-account seizures?	Bank is estopped from arguing not all two-account seizures are unlawful due to prior statements.	No inconsistent position; statements addressed Kruger vs intra-account balancing, not all two-account setoffs.	No judicial estoppel; discretion to apply remains with court.
Merits may be considered on certification?	Merits should not be considered; certification should be decided on rights and common issues.	Merits may be enmeshed with certification where necessary to determine commonality and predominance.	Merits properly enmeshed; court acted within permissible scope.
Right to additional time and discovery on new theory?	Should remand for more discovery to define membership and feasibility.	Bank argues late change of theory; discovery period already extended; no remand advisable.	No remand; court did not abuse discretion.

Miller v. Bank of America, NT & SA, 46 Cal.4th 630 (Cal. 2009) (Kruger does not prohibit intra-account setoffs; comprehensive setoff regulation)
Kruger v. Wells Fargo Bank, 11 Cal.3d 352 (Cal. 1974) (prohibited inter-account setoffs against exempt funds)
Sav-On Drug Stores, Inc. v. Superior Court, 34 Cal.4th 319 (Cal. 2004) (burden of class certification on movant; abuse of discretion standard)
Fireside Bank v. Superior Court, 40 Cal.4th 1069 (Cal. 2007) (class certification parasitic on merits when enmeshed)
MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc., 36 Cal.4th 412 (Cal. 2005) (judicial estoppel, equitable discretion)