Opinion
Plaintiffs Roy L. Evans and Arthea LaFrades (together plaintiffs) each owned homes in which shower pans manufactured by defendant Lasco Bathware, Inc. (Lasco), were installed. Plaintiffs’ action against Lasco alleged the shower pans suffered from design defects that resulted in *1421 water leakage, and the leakage caused damage to adjacent building components. Plaintiffs’ fourth amended complaint (FAC), styled as a proposed class action lawsuit, alleged two causes of action against Lasco: a claim for strict products liability, and a claim for negligence.
The present appeal challenges the trial court order denying class certification. Plaintiffs assert the trial court abused its discretion when it denied their motion for class certification.
I
LAW APPLICABLE TO CLASS CERTIFICATION ORDERS
A. Standards for Class Actions
Code of Civil Procedure section 382 authorizes class actions in California when “the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court . . . .” The burden is on the party seeking certification to establish the existence of both an ascertainable class and a well-defined community of interest among the class members.
(Linder v. Thrifty Oil Co.
(2000)
The predominance criteria means “each membеr must not be required to individually litigate numerous and substantial questions to determine his [or her] right to recover following the class judgment; and the issues which may be jointly tried, when compared with those requiring separate adjudication, must be sufficiently numerous and substantial to make the class action advantageous to the judicial process and to the litigants.”
(City of San Jose
v.
Superior Court
(1974)
*1422
In addition to showing predominance of common questions, the proponent has the burden to show the proposed class is ascertainable. “Whether a class is ascertainable is determined by examining (1) the class definition, (2) the size of the class, and (3) the means available for identifying class members. [Citations.]”
(Reyes v. Board of Supervisors
(1987)
A proponent at the class certification stage is not required to identify individual class members
(Stephens v. Montgomery Ward
(1987)
B. Standard of Appellate Review
“Because trial courts are ideally situated to evaluate the efficiencies and practicalities of permitting group action, they are afforded great discretion in granting or denying certification”
(Linder, supra, 23
Cal.4th at p. 435), and “ ‘[a]ny valid pertinent reason stated will be sufficient to uphold the order’ ”
(id.
at p. 436), as long as the stated reasons are supported by the evidence (cf.
Sav-On Drug Stores, Inc. v. Superior Court
(2004)
However, “an order based upon improper criteria or incorrect assumptions calls for reversal
1
“even though there may be substantial evidence to suрport the court’s order.” ’ ”
(Linder, supra,
II
PROCEDURAL AND FACTUAL BACKGROUND RELEVANT TO CLASS CERTIFICATION ORDER
A. Allegations of Plaintiffs’ FAC
Plaintiffs’ FAC alleged Lasco manufactured defectively designed shower pans that caused the pans to leak and cause water damage to adjacent shower components. The complaint sought to recover only the costs of removing and replacing the shower pans and expressly excluded any consequential damages to adjacent shower components caused by the water leakage. The complaint, styled as a class action lawsuit, proposed to bring the action on behalf of all owners of real property “in which ‘PAN’ or ‘APAN’ model shower pans manufactured by LASCO have been installed with tile walls, and where said shower pans have been used at least 500 times,” but excluding from the class all persons who had previously filed lawsuits or were plaintiffs in lawsuits as of the date of the complaint. Lasco answered the FAC and also filed a cross-complaint against LSW Tile, Inc. (LSW), and Sun Plumbing Company, Inc. (Sun), for comparative indemnity, contribution and declaratory relief.
B. The Class Certification Motion
Plaintiffs’ Motion
Plaintiffs’ motion for class certification asserted there were questions of law and fact common to the proposed class that predominated over the different questions affecting individual members, the class was ascertainable, and plaintiffs had claims typical of the class and could adequately represent the class. On the commonality and predominance criteria, plaintiffs submitted evidence from an expert witness that the shower pan design was defective and prevented installation in a tile wall shower enclosure in a manner that would prevent water leakage, the nature of the damage attributablе to the *1424 defective design was unique, and the nature of the damage was distinguishable from water leakage damage attributable to other causes. Plaintiffs also asserted the damages issue would not impede class treatment because damages would be calculable through a formula that estimated the average cost to replace the shower pan with Lasco’s newer generation shower pan, thereby obviating the necessity of class members submitting individual damage estimates.
On the numerosity criterion, plaintiffs submitted evidence that a large number of defectively designed shower pans were sold between 1996 and 2006, and a large number of lawsuits were filed against LASCO involving the shower pans. Plaintiffs finally asserted they possessed claims typical of the proposed class, and plaintiffs’ counsel could adequately represent the proposed class.
Lasco’s Opposition
Lasco, joined by cross-defendant LSW and Sun, oрposed the class certification motion. Lasco asserted there were numerous obstacles to the ascertain-ability criterion, including (1) the absence of a ready method for determining which consumers presently had Lasco shower pans installed in their bathrooms; 1 (2) the absence of a ready method for determining whether the shower had been used the requisite number of times; and (3) the absence of a ready method for determining whether a specific consumer would be excluded from the class. 2
Lasco also asserted common issues did not predominate over individual issues because the only common issue (whether the design was defective) was outweighed by the noncommon issues. Lasco argued that whether any particular shower suffered water damage at all (i.e., without regard to the cause of the damage) could only be shown by conducting destructive testing on each class member’s shower by removing the tiles and inspecting for damage under the tiled surface. Additionally, even if this destructive testing located water damage, additional individualized testing would also be required to determine whether the subject shower pan was the exclusive cause *1425 of water damage, or whether other factors caused (or contributed to) each homeowner’s water damage. 3 Finally, Lasco argued individualized questions of the amount or extent of damage would be required because of the wide variety of construction materials and methods used to install shower pans, which would require individualized damage determinations for the costs to replace the pans even if no extensive consequential damages to adjacent shower components were uncovered.
Lasco also argued that its affirmative defenses would vary from individual to individual, requiring Lasco to take discovery from, and conduct minitrials as to, еach separate class member. Lasco argued that issues of comparative negligence, 4 statute of limitations, assumption of the risk and possible cross-claims against third parties would require individualized resolution and thereby obviate any efficiencies of a class action.
Lasco finally asserted plaintiffs had not shown the proposed representatives were either typical or would adequately represent the class. Lasco argued typicality could not be demonstrated because of the variety of possible actual and proximate causes of water damage. Lasco also asserted, insofar as the representative must adequately represent the class, that requirement is not met
*1426
if the class member “fail[s] to raise claims reasonably expected to be raised by the members of the class.”
(San Jose, supra,
Plaintiffs’ Reply
Plaintiffs’ reply asserted the arguments raised by Lasco against class certification were either incorrect or did not pose insurmountable obstacles to certification. Insofar as is relevant to this appeal, 5 plaintiffs argued individual issues of causation were irrelevant because plaintiffs contended the design of the shower pans necessarily caused water damage, even if the shower pan had been perfectly installed and the homeowner had perfectly maintained the integrity of the grout lines, caulking and weep holes. Plaintiffs asserted that, although these supplemental factors may have exacerbatеd the damage to the surrounding components, plaintiffs specifically eschewed recovery for that additional damage and only sought the costs to replace the defective pans with nondefective pans, and therefore any additional causes of supplemental damage were irrelevant to the issues to be litigated on behalf of the class. Plaintiffs also asserted that expressly limiting the damage recovery to the costs of replacing the pan did not render them inadequate as class representatives because potential class members who wished to preserve their claim for additional recovery for damage to any surrounding component could opt out of the class. Finally, plaintiffs suggested the court could create subclasses, or alternatively could limit the litigation to the single issue of whether the shower pan was defective and then permit class members to use that judgment as the springboard for individual damages claims.
C. Trial Court’s Ruling
The trial court denied the class certification motion. It concluded that, even without consideration of any distinct additional damages to other components, the need for individualized proof of the amount of damages for removing and replacing the shower pans predominated over the common questions. Moreover, the court appeared to conclude that limiting the recovery to the cost of replacing the pans rendered plaintiffs inadequate as class *1427 representatives, because the possible methods for protecting against forfeiture of additional recoveries (such as opting out or creating subclasses) were not feasible or practical under the circumstances presented in this case. Accordingly, the court concluded plaintiffs had not met their burden of showing the сommon issues predominated over the separate issues or that the class representatives were adequate, and therefore denied certification.
ANALYSIS
We conclude the trial court did not abuse its discretion when it found class certification was inappropriate. There is substantial evidence from which the court could have concluded the sole common issue (whether the shower pan was defectively or negligently designed) did not predominate over individualized questions of damages, and there is substantial evidence from which the court could have concluded the proposed plaintiffs did not adequately represent the interests of the class.
Individualized Damages Issues
First, there was substantial evidence to support the trial court’s conclusion that, even without considering the problems raised by plaintiffs’ decision to limit the damages award to the cost to replace the shower pans in each class member’s home, class treatment was inappropriate because individualized trials for each class member’s damages would be required to determine the appropriate award for each class member. When evaluating whether to permit an action to proceed as a class action under the community of interest element, it is not sufficient that there are some questions of law or fact common to the proposed class. Instead, the court must
also
evaluate predominance and decide whether “ ‘the issues which may be jointly tried, when compared with those requiring separate adjudication, [are] sufficiently numerous and substantial to make the class action advantageous to the judicial process and to the litigants.’ ”
(Washington Mutual Bank
v.
Superior Court
(2001)
Here, although plaintiffs’ expert (Mr. Gliko) stated the cost to replace each shower pan was calculable through a formula that would permit a classwide aggregate recovery (by using a formula to estimate the average cost to replace the pan multiplied by the total number of class members) and thereby eliminate any need for individual class members to litigate damage estimates, Mr. Gliko admitted his formula assumed that (1) standard grade tile would be *1428 used, (2) the removal of the existing system would extend to the existing framing, (3) “[blocking, dam, or framing repairs incidental to the installation of the replacement [shower pan] will be performed,” and (4) a new shower door would be installed. Moreover, although Mr. Gliko explained the replacement process would “incidentally include repair of some, if not all, of the consequential damage caused by the leaking shower рan . . . [such as] repair of the damage to adjacent drywall and other finishes incidental to the installation of the replacement [pan],” his formula would not include any “estimate for repairing consequential damage.”
However, Lasco’s evidence showed the actual costs of replacement were . not amenable to estimation because the costs associated with removing and replacing each individual shower pan could vary widely from one class member to the next. Lasco’s expert (Mr. Kuczwara) explained there was a wide variety of construction materials and methods used to install shower pans, as well as a wide variety in the type of finish materials that would be used, and therefore it would be necessary to conduct individualized damage determinations for the costs to replace the pans even if no extensive consequential damage to adjacent components was uncovered and needed rеpair. Kuczwara explained that a shower pan is unlike other shower assembly components because, after the framing, it is the first component installed in the shower assembly and, after it is attached to the framing, the moisture barrier, the cementitious substrate, and the tile wall are all integrated with the shower pan; accordingly, unlike components like “a showerhead, which can be removed and replaced with relative ease, a shower pan cannot.” Kuczwara also explained there were numerous component parts to a shower assembly that must be considered when estimating the cost to replace a shower pan, including the type of moisture barrier (which can be 15-pound felt, Jumbo Tex 20-60 minute paper, Aquabar, or lath covered with scratch coat); the type of substrate system (such as Durock, Hardibacker, or mortar set); the type of floor finishing in the bathroom (such as hardwоod flooring, carpeting, linoleum tile, ceramic tile, or stone); the type of shower door; the type of tile used for the shower enclosure (of which there are countless variations); and the type of walls and finishes on the walls outside the shower (including tile, stone, drywall, paint over drywall, or wallpaper over drywall). Kuczwara explained that Gliko’s standardized formula “failed to account for these variables” and gave, as one example, that Gliko’s formula was based on the “assumption] that he will only repair ‘standard grade tile,’ ” which demonstrated Gliko “did not take into account in his estimate the fact that the cost to remove and replace the tile depends on the kind of tile that currently exists in the shower, which varies from shower to shower, for which there are countless possibilities.”
Plaintiffs assert on appeal that it was error for the trial court to deny class certification on this ground beсause variations in the damages actually
*1429
sustained among individual class members is no impediment to a classwide recovery based on estimations of the total injury suffered by the class.
6
However, the cases cited by plaintiffs as permitting damages based on approximations are inapplicable. For example, in
Daar v. Yellow Cab Co.
(1967)
Plaintiffs also cite
Bell
v.
Farmers Ins. Exchange
(2004)
Indeed, the limited import of
Bell
is highlighted by the opinion, filed just weeks after
Bell
by a different panel of the same division of the Court of Appeal (with two of the same members), in
Frieman
v.
San Rafael Rock Quarry, Inc.
(2004)
We distill from those cases that, although a trial court has discretion to permit a class action to proceed where the damages recoverable by the class must necessarily be based on estimations, the trial court equally has discretion to deny certification when it concludes the fact and extent of each member’s injury requires individualized inquiries that defeat predominance. The evidence offered here is similar to the evidence considered in Frieman insofar as there is a potentially wide disparity in the amount of damages *1431 recoverable by each class member, 7 and the trial court here (as did the trial court in Frieman) exercised its discretion to conclude these individual issues predominated over common issues. We likewise cannot find it was an abuse of discretion to deny certification based on this finding.
For similar reasons, the court’s statements in
Cipro Cases
approving the use of a formula to extrapolate damages to the class do not compel revеrsal here. First,
Cipro Cases
was decided in the context of antitrust litigation, where it has long been recognized that, although the fact of injury must be established with reasonable certainty, a less rigid standard of proof is imposed with respect to the amount of damage caused by an antitrust violation, because economic harm in such actions is difficult to quantify.
8
(See, e.g.,
Copper Liquor, Inc. v. Adolph Coors Co.
(5th Cir. 1980)
Moreover, the court in
Cipro Cases
did
not
hold a trial court abuses its discretion when it declines to certify a class on the grounds that individual showings of damages predominate over common issues merely because the class proponent offered a formula to calculate classwide damages, which formula the trial court rejected. To the contrary, the
Cipro Cases
court
upheld
the trial court’s discretionary determination because it recognized “[t]he trial court is in the best position to weigh the advantages of class treatment against its disadvantages”
(Cipro Cases, supra,
Inadequacy of Class Representative
The court alternatively appeared to agree with Lasco’s argument that plaintiffs, by limiting the recovery to the cost of replacing the shower pans, were not adequate class representatives because that recovery would forfeit additional recoveries (e.g., to consequential damages to other component parts of the house) that class members might otherwise be entitled to recover. A proposed representative must adequately represent the class, and a trial court may conclude that requirement is not met if the class member “fail[s] to raise claims reasonably expected to be raised by the members of the class.”
(San Jose, supra,
Plaintiffs do not dispute a class member would forfeit such recovery if he or she remained a member of the class. Instead, plaintiffs assert the trial court erred when it concluded the possible methods for protecting against forfeiture of additional recoveries (including creating subclasses or permitting potential class members to opt out if they wished to preserve their additional recoveries) were not feasible or practical under the circumstances presented in this case. Plaintiffs assert the class should have been certified as to the remedy sought (i.e., damages limited to the costs to replace the shower pan), and problems with adequacy of representation would be solved by advising prospective class members (in tire class notice) that the recovery would be limited and providing the class members the opportunity to preserve their additional сlaims by opting out of the class. 10
We are convinced the trial court acted within its discretion to the extent it denied class certification based on plaintiffs’ failure to raise those claims reasonably expected to be raised by members of the class. Plaintiffs’ proposed class action, although proceeding on both strict liability and negligence claims, expressly waived any recovery beyond the average cost to replace the shower pans, thereby forfeiting recovery of damages to other parts
*1434
of the house. Although plaintiffs are correct that class actions may be maintained with regard to particular issues and if necessary a class action may be subdivided into subclasses and each subclass treated as a class (as in
Hicks, supra,
The facts of
Hicks
apparently involved easily identifiable determinations by individual class members whether the defective foundation had created additional damages “(e.g., uneven floors, insect infestation, misaligned doors and windows) and that such damage was caused by cracks in the foundation”
(Hicks, supra,
“Liability Only” Certification
Plaintiffs finally argue the court abused its discretion by declining to certify the class solely as to the common issues of liability and causation, which *1435 would then permit individual members to seek damages in the event plaintiffs prevailed on the liability questions tried in the class action. Plaintiffs argue the court could have “resol[ved] the central question of whether Lasco’s shower pans are defective and have caused damage, and thereafter allow [ed] class members to prove their individual monetаry damages in the event [plaintiffs] prevailed on the liability issue at trial.” Although plaintiffs alluded to that possibility in their attorney’s declaration below, and cited the dicta in Hicks to support that approach, the trial court (after noting even plaintiffs did not recommend that approach) recognized Hicks alluded to that approach in the context of a class action pursuing a breach of warranty claim and the trial court here rejected it because “plaintiffs herein do not sue for breach of warranty; and the Court does not see how this ‘liability only’ approach could be implemented in this case.”
On appeal, plaintiffs argue the
Hicks
approach was feasible here. Plaintiffs note
Hicks
stated that “if the defendant’s liability can be determined by facts common to all members of the class, a class will be certified even if the members must individually prove their damages”
(Hicks, supra,
Here, the precise causes of action Hicks held were properly rejected as amenable to resolution in a class setting are the only causes of action being pursued by plaintiffs. Indeed, the emphasized language undermines plaintiffs’ claim that a “liability only” class action would be feasible here, because there would be no liability established on the pleaded claims as to any class member here unless and until each class member individually proved (1) specific damage to his or her home and (2) such damage was caused by *1436 the design of the pan rather than some other cause. We conclude the trial court correctly concluded a “liability only” approach could be not be implemented in this action.
DISPOSITION
The order is affirmed. Defendants are entitled to costs on appeal.
Huffman, Acting P. J., and O’Rourke, J., concurred.
Notes
Lasco noted that because approximately 75 percent of the pans sold by Lasco were sold to wholesale and retail distributors, Lasco’s records would not contain the names of homeowners who became the ultimate end users of the pans. Additionally, there would be no ready method for identifying whether an end user who once had a subject shower pan had not remodeled the bathroom and therefore already had replaced the pan.
Lasco noted it was party to hundreds of lawsuits in which construction defect claims were litigated, most of which were settled, and therefore to determine whether a class member might be excluded would require detailed examination of each lawsuit to determine whether a specific homeowner was a person who had “previously filed lawsuits complaining of defective LASCO SHOWER PANS [or was a plaintiff] in such lawsuitQ as of the date of this complaint” within plaintiffs’ proposed class definition.
For example, Lasco noted that even in the case of proposed class representative Mrs. LaFrades, several other conditions could have caused the water damage. She did not repair or maintain the grout lines, thereby allowing excessive moisture to penetrate to the subwall, and the joint where her shower door touched the tile wall was improperly sealed, which allowed additional water to penetrate the tile. Additionally, the escutcheon plate near the shower valve typically has a weep hole, which allows water trapped behind the tile wall to escape back into the enclosure, but a weep hole was not present on her shower. Additionally, the shower pan has several weep valleys designed to allow the water to migrate back into the pаn, but those valleys in Mrs. LaFrades’s pan had been improperly sealed with caulk, which caused excessive buildup of moisture. Additionally, it appeared the installer did not correctly leave a one-fourth inch gap where the tile wall joined the shower pan reveal, which was required to allow a channel through which water trapped behind the tile could migrate back into the pan. Finally, there was a large gap between the shower door and the door frame, allowing water to escape when the shower was being used. Moreover, another expert stated that other causes of water damage can be common, including improper installation of the shower valve, improper sealing of the weep hole on the escutcheon, or deterioration of the joint between the pipe and the shower arm. Lasco asserted that, in addition to the noncommon issues of fact raised by this evidence, this evidence raised the problem of an exponentially expanding set of cross-complaints (against the persons who installed the various components of the shower seeking to apportion comparative fault) were the action granted class action treatment.
For example, as to proposed class representative Mrs. LaFrades, discovery showed that she typically took very long showers and then exited the shower without ensuring she was not dripping, both of which could contribute to water damage. Additionally, Mrs. LaFrades received instructions from the builder when she moved into the house advising her of the danger of possible water damage if she did not properly maintain the grout in the shower and caulking along the shower doors, but inspection of those areas revealed problems had developed as to her shower, raising problems of cоmparative negligence.
Plaintiffs attacked other arguments raised by Lasco. For example, replying to Lasco’s lack of ascertainabiiity argument, plaintiffs argued the identities of approximately 25 percent of class members could be ascertained from Lasco’s records and the proposed public notice would provide sufficient information to the other 75 percent of end users from which those class members could self-identify, and excluded members could be determined from either Lasco’s records or other means. However, because the court did not specify the absence of ascertainabiiity was a barrier to certification, we do not further evaluate this impediment.
Plaintiffs also assert on appeal that, even if the trial court correctly concluded individual class members would be required to show each member’s specific cost to replаce the shower pans, this complexity cannot defeat class certification. Plaintiffs quote
B.W.I. Custom Kitchen
v.
Owens-Illinois, Inc.
(1987)
Indeed, this case also parallels
Frieman,
and is not analogous to
Bell
(where the class members’ right to recover was established and only damages remained) because, like
Frieman
(and unlike
Bell),
whether any individual class member would be entitled to recovеr depends not merely on proof the shower pan was defectively designed but also that each individual members’ property was
actually
damaged by the defective pan. (See, e.g.,
Jiminez v. Superior Court
(2002)
Plaintiffs also rely on a series of federal cases purporting to approve the use of approximations of damages to obviate concerns over the necessity of individualized damages showings in a class action. However, most of plaintiffs’ federal cases were similarly decided in an antitrust context (see, e.g.,
In re Domestic Air Transp. Antitrust Litigation
(N.D.Ga. 1991)
Indeed, the only reason proving damages with exactitude presents difficulty in this case is that it would prove unwieldy in a class action setting to prove each member’s right to recovery and the amount. However, that latter factor supports, rather than undermines, the determination that individual issues predominated over common issues.
Plaintiffs argue this procedure was the basis for the court’s decision in
Anthony v. General Motors Corp.
(1973)