*1 Dist., Second B189272. Div. Seven. Oct. [No. 2008.] al., BRYAN et HARPER Plaintiffs and Appellants, FITNESS, INC.,
24 HOUR Defendant and Respondent.
Counsel Click, Click; Fine, Daniels, Law Offices of Israel & Stephen Stephen Fine, Schonbuch, Brooks; Paul R. Scott A. Law Ian Offices of Ian Herzog, and Evan D. Marshall for and Herzog Plaintiffs Appellants.
Jeffer, Allison, Marmaro, & Mangels, Butler Susan Richard A. McDonald and S. Mauck and for Defendant Ryan Respondent.
Opinion Mark PERLUSS, and Bryan P. J. representatives Putative a limited class that Salzwedel from the trial court’s order decertifying appeal had been for their unfair claims under recognized previously competition (UCL claims)1 Business Professions Code sections 17200 Fitness, Inc., a form contract 24 Hour used to enroll new challenging members. Because the trial court’s decertification order is largely predicated on its erroneous of relief available in legal concerning assumptions scope an individual action under sections we reverse. FACTUAL AND PROCEDURAL BACKGROUND 1. Renewal Terms Dispute Regarding Membership *4 24 Hour Fitness and workout health club facilities operates throughout California. From until 24 1996 2000 Hour Fitness offered to use memberships its facilities under a contract form that authorized a with prepaid membership rate, renewal guaranteed V.9.96 contract. and Salzwedel became Harper 24 Hour Fitness members this and entered during into period prepaid, multiyear V.9.96 contracts.
The the terms for the parties renewal and Salzwedel dispute Harper period. contend the right to renew extended for three the same as years, period term of their initial 24 Hour Fitness maintains the renewal mеmberships; clause for annual renewals provided of their initial only. Upon expiration 24 Hour and membership Fitness refused to allow Salzwedel periods, Harper rate, to renew for a new term at the three-year renewals guaranteed permitting at the rate for an annual term specified only.
2. The Class Action Complaint In 2001 and February Salzwedel initiated this lawsuit and on June Harper 29, 2001 filed a third amended class action on behalf of putative complaint situated, themselves and similarly others Hour Fitness’s contracts alleging and sales were and that members who techniques deceptive falsely implied their dues for the entire contract term were entitled their prepaid dues keep at the same rate if they renewed their when the initial term membership The causes of action for unfair and expired. alleged complaint competition false in violation of sections 17200 and unfair or advertising deceptive Code, (Civ. under the Consumers Remedies Act practices Legal § et breach of and contract common law fraud and deceit. seq.),
1 Statutory references are to the Business and Professions Code unless otherwise indicated. classes, and filed a two In June 2002 Salzwedel motion Harper certify in California who had entered into one of all consisting persons prepaid Fitness, the individuals contracts with 24 Hour whether or not membership in had renewed their the second of all memberships; consisting persons who entered into contract with 24 Hour Fitness that contаined any California contended were unconscionable. In several and Salzwedel provisions Harper their the contract and argued motion Salzwedel Harper provisions and estab- associated identical violations law representations presented lished a common factual for all class members. In Hour predicate response that to contract Fitness asserted issues relating interpretation negotia- tion of contracts individual examina- particular presented questions requiring tion of the contracts in with on the conjunction bearing evidence parol contract terms.
3. Class Order Original Certification certification, On March 2003 the trial court limited class granted claims, class treatment for Salzwedel’s UCL but allowing denying certification as to their claims.2 With unconscionability respect class, moreover, UCL claims the court restricted participation “[t]hose who, 12, 1997, California, on or after in the State of entered February persons into a contract on a form with 24-Hour ‘V.9.96’ ‘prepaid membership’ Fitness, months, with an initial and who renewed by period exceeding is, (that for additional the same same prepayment period program ‘kind,’ *5 ‘benefits’), and and who did not move . . . ‘type’ during permanently the contract.” term of their initial addition,
In the court limited the basis for the UCL claims to the face of contract form without reference to oral only, any alleged V.9.96 represen- tations 24 Hour Fitness The court “Limiting by personnel. explained, of the issues of fact and claims to this class satisfies proposed commonality law, and individualized into either for inclusion avoids inquiry qualification the class or entitlement to damages.” to a attorney
With to whether a class action was respect superior private action, the the matter to a The court court found be “close general question.” that, were significant, determined the costs of class notice although many in a action would restitutionary remedy attorney general carry private be of the same costs involved in those to whom restitution should identifying concluded, be made. the court class action Ultimately, may slightly “[A] action.” to a attorney general superior private by denying unconscionability claims was affirmed Thе order class certification for Fitness, (Harper 24 Hour Inc. (Aug. Eight nonpublished opinion. this court in a
Division 31, 2004, B166123).)
4. Motions the Class for Modification of Definition 2003, in March attempts After the trial court certified the class multiple 24 Hour to modify were made and Salzwedel and Fitness by by Harper First, and to redefine the sought definition of the class. Salzwedel Harper to include their Code claim. On Civil section 1770 deceptive practices motion, 2003 the trial court denied and Salzwedel’s April Harper Next, different class. were certification of an concluding they seeking entirely 11, 2004, on June after 24 Hour Fitness moved to limit the class originally certified, had the trial court redefined the class to exclude those members who “bonus time” notations written on the face of their contracts. The court “bonus,” similar its concern about words “bonus time” or explained contracts, handwritten on the “The central comments V.9.96 form purpose and the class to the face of the form was limiting satisfy numerosity [to] criteria, and clause to avoid reference to given integration typicality prior not set forth in the ... . The itself. representations writing presence [][].. these handwritten terms means that all the members’ putative terms, contracts have the same . . . . . . Plaintiffs appear simply [f] [f] whether these ignore notations have any meaning. [Fn. omitted.] Court cannot wear the same blinders.” additional on
Following discovery, Salzwedel April Harper definition, filed another motion to the class the evidence modify contending had they showed the of the “bonus” words on the face of developed presence the contract did not affect the class members’ renewal The court rights. motion, denied and Salzwedel’s has thus far Harper stating, plaintiff “[s]ince evidence, furiously resisted to allow extrinsic motion any attempt present which, conclusion, a reversal of if carried to its represents position logical would redefinition or decertification of the entire class.” require perhaps made, seven
Ultimately, the class definition were three attempts change Salzwedel, 24 Hour Fitness and four by none of which was Salzwedel, successful. The final effort was a motion filed by Harper 6, 2005, October the class to include individuals who had expand signed *6 form, the the successor the had the V.7.99 V.9.96 form contract that been focus of the for the four Salzwedel litigation and preceding years. Harper had learned further to 24 Hour they through contrary explained discovery, Fitness’s that the at issue in the form renewal V.9.96 representations language forms, had been removed from the identical in fact language membership in the form.3 In the trial court issued an order to V.7.99 appeared response, class, show cause should the why it not the decertify instructing parties original briefly In its March certification the trial court had discussed whether order signed 24 Hour Fitness members who the form should be included in the class. “The V.7.99 (‘V.7.99’) appears by changed evidence to indicate that the next form 24-Hour Fitness the used (1) brief the issues: the for class certification thаt following requirement (2) common issues the that a class action be a predominate; requirement method of and the superior adjudication; requirement typicality.
5. The Class Order Decertification 19, 2006, the On and oral trial court January following briefing argument, decertified the class. order further As its for suggested by briefing, vacating a limited and UCL its order class for Salzwedel’s prior certifying Harper claims, reexamined the court of a the class action for advantages parties and the court and reconsidered whether it to proceeding by way was superior of an individual action on the UCL claims. The court also reevaluated the issues of In and commonality typicality. particular, responding Harper Salzwedel’s insistence that Hour Fitnеss’s records were inaccu- computer rate and and that each form contract needed to be misleading individually exclusion, examined to determine whether it fell within the “bonus time” concluded, court is clear from that all the plaintiffs’ arguments presumed “[I]t economies from Sections 17200 17500 claims as class treating is, claims—that from not to deal with each member’s having class putative contract to be individually—are swept away.”
To extent individualized review each member’s class claim now seemed to be the court was not required, persuaded Salzwedel’s contention that common for predominated sufficiently questions the continued use of a class action. More the court significantly, questioned the continued benefit or of class treatment. the lack superiority Emphasizing order, since the class certification the court found the progress original to define and redefine the demonstrated unceasing class process attempting of the action: “At we ineffectiveness this are less than two point months from the five for this action to trial running years bringing under CCP 583.310. The Court issued the Certification Order over 34 § Indeed, months but class notice still has" out. to hear ago, gone plaintiffs, we are farther from class notice than were on March today giving we order], date certification we need to original because still [the revisit issue of class definition. [1] . . . [f] As this chronology makes clear, the issues of class definition and identification of the members of the class and indeed havе taken on a life of the merits of the litigation, independent have become the force.” apparently driving short, concluded,
In the court certification ceased to be has “[c]lass Rather, beneficial. class certification and class notice have become an ob- fair, and resolution of this stacle to the economical prompt, (reasonably) *7 suit, wording gives signed who a different form of contract do persons which rise to this challenging in appropriate to be inclusion in a class the renewal terms V.9.96.” appear for
973 claims class. Harper matter.” the court decertified UCL Accordingly, decertifying Salzwedel filed a notice of from order timely appeal 429, Linder v. Oil Co. (2000) 23 Cal.4th 435 Thrifty (See class. [97 179, class is an 2 P.3d of certification motion to entire Cal.Rptr.2d 27] [denial 695, Daar v. Yellow Cab Co. order]; (1967) 67 Cal.2d appealable [63 724, that “determines the legal 433 P.2d court order Cal.Rptr. 732] [trial is in effect a final of the as a class suit ... insufficiency complaint legal v. No. 2 Aguiar Corp. Cintas lies”]; from an which see also judgment appeal 121, (Aguiar).) (2006) 144 Cal.App.4th Cal.Rptr.3d [50 135]
DISCUSSION 1. Order Standards Review a Class for Certification are one of a
Class actions authorized “when the is statutorily question interest, are common or or when the general many persons, parties numerous, . and it is to them all before the court . . .” bring impracticable Proc., (Code 382.) Civ. “The certification is ‘essentially question proce § dural one that does not ask whether an action is or factually legally ” Stоres, (Sav-On Inc. v. Court (2004) Drug Superior meritorious.’ 34 Cal.4th 319, Stores).) 906, (Sav-On Drug 96 P.3d “As the Cal.Rptr.3d [17 194] focus in a certification on what or dispute type questions—common action, individual—are to arise in the rather than on the merits of the likely [citations], case to whether there is substantial evidence determining order, a trial court’s certification reviewing support [the court] consider[s] is, whether the advanced of certification theory recovery proponents (Id. matter, as an analytical to amenable to class treatment.” at likely prove “ 327.) state has a which the use of the encourages p. public policy ‘[T]his ” (Id. 340; Aguiar, supra, class action device.’ at at see p. Cal.App.4th 131-132.) pp.
“The the burden to establish the certification has pаrty seeking an ascertainable and a well-defined community existence both class Stores, (Sav-On Drug interest class members.” 34 Cal.4th at supra, among factors; 326.) “The of interest’ embodies three ‘community p. requirement fact; (1) (2) common of law or class predominant questions representatives class; (3) with claims or defenses of the class who typical representatives (Ibid.; accord, Fireside Bank Superior can the class.” adequately represent Court 268].) 40 Cal.4th 155 P.3d Cal.Rptr.3d “ litigate means “each member must not be required individually ‘[T]his determine his to recover numerous and substantial questions right [or her] tried, and the which be when jointly issues following judgment; must be sufficiently with those compared requiring separate adjudication, action advantageous numerous and substantial make *8 974 ’ ” (Lockheed and to the Martin v.
judicial process litigants.” Corp. Superior 1096, 1, (2003) 913].) Court 29 Cal.4th 1108 63 P.3d Cal.Rptr.2d [131 “A action class also must be the means superior resolving for both the and the court. a litigation, class suit parties ‘Generally, [Citation.] is “when numerous suffer of insufficient size to appropriate injury parties warrant individual action and when denial of class relief would result in unjust advantage wrongdoer.” con [Citations.]’ [Citation.] ‘[R]elevant siderations include the that each class member will come forward probability his or her claim to a of the total ultimately prove portion recovery separate and whether the class would serve to deter and redress approach actually action also has the “ alleged wrongdoing.’ group poten [Citation.] ‘[B]eсause tial to create trial courts are injustice, ‘carefully weigh required respec tive benefits and burdens and to allow maintenance of the class action only ” where substantial benefits accrue both to and the courts.’ litigants [Cita ” 1094, (Newell (2004) v. Farm General Ins. State Co. 118 Cal.App.4th tion.]’ accord, 343]; Aguiar, at Cal.Rptr.3d supra, Cal.App.4th [13 132-133; Brown, see Weil & Cal. Practice Before Guide: Civil Procedure pp. 14:16, (The 2008) (rev. 1, 2008) Trial Rutter 14-13 # Group p. [benefits f (1) class action evaluated interest of each class member in putative (2) his or her case difficulties in a controlling managing personally; potential action; (3) class nature and extent of individual already pending litigation by (4) members same involving controversy; desirability court].) all claims in a action before one consolidating single The trial court is afforded latitude in or generally great granting denying certification, and we a an review on certification for normally ruling Stores, (Sav-On 326-327.) abuse of discretion. 34 Cal.4th at Drug supra, pp. review, however, This deferential standard of if the trial court inapplicable has evaluated class certification criteria or an incorrect using improper legal trial court analysis: substantial evidence ruling supported by generally “[A] (1) [citation]; will not be disturbed ‘unless criteria were used or improper Co., (2) (Linder made erroneous were ....’” Oil legal assumptions Thrifty 435-436; accord, 23 Cal.4th at Gattuso v. supra, Shoppers, Harte-Hanks pp. 468, (2007) 889]; Inc. 42 Cal.4th 575-576 P.3d Cal.Rptr.3d [67 Stores, 326-327; Sav-On at see Bartold v. Glendale Federal Bank Drug pp. 226].) 828-829 Cal.App.4th Cal.Rptr.2d 2. The Order Is Based on Erroneous Legal Decertification Under Individual Actions Assumptions Concerning Scope of and 17500
Sections 17200 When it certification in March 2003 for limited class originally granted claims, court characterized as a “close and Salzwedel’s UCL the trial attorney action would be private whether a class superior
question” *9 a- fair and efficient adjudication of the As litigation. action for general discussed, later, and by Harper almost four years following multiple attempts 24 definition of the class and by Salzwedel and 24 Hour Fitness to modify decertified, decision Hour Fitness to have it the trial court reconsidered its be had certification has ceased to and concluded the balance shifted: “Class Rather, аnd notice have become an obstacle to beneficial. class certification fair and economical resolution of this matter.” (reasonably) prompt, 19, reassessing A factor in the court’s 2006 order significant January action the relief of a class action was its belief “in a representative superiority under and extend the named beyond 17200 granted 17500] [sections addition, In the court a class action is unnecessary asserted parties.” because, “the collateral benefits of deterrence and judicial economy” provide “should the deterrence function would be well plaintiffs prevail[,] equally served relief a defendant and a by injunctive against by restitutionary practice both of which are available under sections 17200 and 17500 even remedy, without class certification.” The noted the absence of claims court also should not either retention or continuation of prevent representation by counsel “the because section 17200 and 17500 claims both for provide fees.” recovery attorneys
Each of a these essential to the trial court’s conclusion points, action was not to the or to the is advantageous judicial litigants, process 64, incorrect. which the at the November legally voters Proposition approved 2, Election, 2004 General modified the UCL new standing imposing for relief under section 17200 requirements parties seeking (standing limited to certain officials and to who has suffered public any specified person in fact and has lost injury or as result of unfair money property competi individuals, Salzwedel, tion) and such as requiring pursuing actions to the class action of Code of Civil representative satisfy requirements 17203, 17204; Disability (§§ Procedure section 382. see Californians for 223, 57, Rights Mervyn’s v. LLC (2006) Cal.4th 39 228-229 Cal.Rptr.3d [46 207].) 138 P.3d 64 made identical for changes Proposition requirements 17500, actions under section the false standing advertising representative 17535; 229, (§ Disability Rights, 2.) law. see at fn. As a p. Californians for amendments, certification, relief—and, result of these absent class in particu lar, restitution—cannot extend the named These significant beyond parties. case, statutory to this filed before changes apply retroactively passage 64, but still (Californians Disability Proposition pending postenactment for undermine Rights, 227),4 at the trial court’s p. fundamentally superiority 4 LLC, 223, Disability Rights Mervyn’s supra, holding v. 39 Cal.4th Californians for 2, 2004, Proposition applies pending 64 to all cases on November was decided six months decertifying the trial court’s order the class in the case at bar. after 976 Court, (See Fireside Bank Superior supra, 40 Cal.4th at
analysis. p. amendments, after [rejecting argument, that class action adoption Prop. individual, based on superior suit representative pre-Proposition-64 UCL].) for actions under the procedures non-class-representative Moreover, 64, even before there was no adoption Proposition authorization for an award of fees to for a statutory attorney counsel (Cel-Tech successful UCL under asserting claims sеction 17200. plaintiff Communications, Inc. v. Los Cellular Co. Angeles Telephone 527].) Cal.4th P.2d of attorney Cal.Rptr.2d Recovery *10 in fees UCL actions is on the existence of relief classwide dependent (restitution or of disgorgement) common fund or application equitable Serrano v. Priest substantial (see (1977) benefit doctrines generally 20 Cal.3d 25, 315, Serrano v. Unruh 1303]; 35 (1982) 569 P.2d 32 Cal.3d Cal.Rptr. [141 Cause, 621, 754, Consumer Inc. 985]; 627 652 P.2d Cal.Rptr. [186 Markets, Mrs. Gooch’s Natural Food 387, Inc. (2005) 127 Cal.App.4th or, 514]) 396-400 in cases in which the action Cal.Rptr.3d exceptional [25 has resulted in the enforcement of rights important affecting public interest, doctrine codified in Code of Civil private attorney general Graham v. Procedure DaimlerChrysler Corp. (See (2004) section 1021.5. 34 553, 331, Downey Branick v. 140]; Cal.4th 565 101 P.3d Cal.Rptr.3d [21 & Loan 235, 66, Savings Assn. (2006) 2 39 Cal.4th & fn. 239 Cal.Rptr.3d [46 order, 214].) 138 P.3d With the affirmance of the decertification to contrary the trial court’s dim for continued prediction, prospects appear represen tation of and Salzwedel as individual claims they pursue only against Baxter v. Inc. (See 24 Hour Salutary Sportsclubs, (2004) Fitness. 122 941, 948 trial court’s denial Cal.App.4th Cal.Rptr.3d [affirming [19 317] of attorney fees to successful who obtained modest relief in UCL plaintiff action to ensure health club contracts conform with membership statutory requirements].)
The other factor central to the trial court’s analysis, ongoing in the members of the certified class from 24 difficulty properly identifying records, Hour a Fitness’s be considered as of conducted may properly part However, evaluation of the action. the need by class superiority proceeding examine each member’s contract to determine individually ultimately not, whether he or she for inclusion in the class does as qualifies suggested, demonstrate a lack of or or establish that ascertainability manageability Dynamex, Lee v. (See common of fact or do law questions predominate. Inc. (2008) 241].)5 166 1325 Cal.App.4th Cal.Rptr.3d [83 5 members—and, difficulty identifying determining appears particular, It this in in in “bonus,” which contracts have the words “bonus time” or similar handwritten notations on attributable, part, their at least in of 24 Hour Fitness’s inadequacy face—is substantial computer previously employer may records. We have cautioned an not avoid class certification
977 of all class confirming identity in difficulty With respect merits, court One оf this determination Division on to a members prior drivers over of FedEx consisting of a class affirmed certification recently out, ‘in and sometimes class shifted “the members of this FedEx’s objection Inc. System, (Estrada Package v. FedEx Ground basis ....’” on a day-to-day 327].) The court explained, (2007) Cal.Rptr.3d 154 Cal.App.4th [64 unnamed identifies a plaintiffs if it group “The class is ascertainable allow a member sufficient to set of common characteristics a describing based on the to recover having right himself as identify that group of the claim that member every ... If FedEx’s description. [Citation.] [ft] outset, (Ibid.; wrong.” from the FedEx is simply class had to be identified 1335; Inc., accord, also at see p. Lee v. Dynamex, supra, Cal.App.4th Stores, ‘a action is not 34 Cal.4th at supra, Sav-On Drug p. [“ be of the сlass at some point because each member inappropriate simply her for eligibility as to his or to make an individual showing required ”]; Financial Inc. Group, Cal.App.4th . . .’ v. Dollar recovery Bufil ascertainable spite of employees Cal.Rptr.3d 804] [class records; that to the merits goes rest “speculation absence specific period focus for the ascertainability . . . an ultimate recovery inappropriate [is] *11 715, 744 Bell v. Farmers Ins. Exchange Cal.App.4th inquiry”]; that turn out to be overinclusive may ultimately Cal.Rptr.3d 544] [fact determinative; actions eventual individual proof most class contemplate none].) will have some class members damages, including of possibility of common the of of interest or the community predominance As to issue fact, contracts with a concomi- a review of individual although questions whether emendations be may required identify tant of handwritten analysis class, a member of the an individual 24 Hour Fitness member as qualifies limited the class action would be from the outset the trial court was insistent contract without reference to issues on the face of the V.9.96 appearing to contend members continuing For their although oral representations. part, be excluded from include “bonus time” notations should not whose contracts class, the form member- and Salzwedel have consistently argued the Harper and and the class’s UCL claims should contract is their fully integrated ship itself, in their the form contract which be determined from the language than an the to renew for more right view members unambiguously grants rate. The parties’ additional 12-month at the specified membership period refine, of which or contract the class definition—all various efforts to expand that commonality trial court—in no way destroy were rejected by as defined. exists in the class job assignments or commingle particular or fail to document
by making a business decision to 134.) applicable (Aguiar, supra, principle A would seem Cal.App.4th p. at similar tasks. here.
DISPOSITION reversed, order The the class is cause decertifying remanded for further not inconsistent with this proceedings Salzwedel opinion. are to recover their costs on appeal.
Zelon, J., concurred.
WOODS, J., dissent. Dissenting. I respectfully court,
It true the trial in class treatment was no concluding longer claims, method to the resolve the superior made several observations about availability relief and remedies actions that do not representative (unfair the current law) reflect state of the UCL in the competition post- however, convinced, world. I am not that the trial Proposition-64 court’s comments warrant concerning UCL reversal of the decertification order in Likewise, the arguments view of on history this case. as I shall appeal I with agree the trial court’s view that after five explain, years class status it no that the discovery individual class members share longer appears of interests. I would trial community Accordingly, affirm the court’s decerti- order. fication
1. Superiority Class Treatment characterizes as a that majority “significant factor” “fundamentally the trial (in order) undermines court’s the decertification analysis” superiority court’s belief trial that in a action the relief under representative granted UCL, Business and Professions Code sections 17200 and *12 the beyond extend named include restitution parties attorney’s view, my fees. In the characterizations the trial com- majority’s of court’s as significant ments or fundamental factors in the court’s conclusion are not Instead, borne out in the record. as order reflected at the to show cause order, on the decertification the trial chief hearing court’s concerns lay elsewhere, that the class namely, given seemingly endless efforts to plaintiff’s class, the size the increase of the class action was no longer proceeding efficient, because it was no or longer superior manageable expedient. motivation behind the court’s class certification order was to original the an reach the avenue to merits of the claims provide parties expeditiously. However, the record shows class certification had the effect and opposite failed to confer benefit the them- substantial to court or any parties This lack is the selves. of effectiveness reflected record as the trial throughout in of delay court the the the claims. openly reaching During merits critiqued court the granted appell- the on a August hearing production request, the the and reach discovery process ants’ motiоn for to production expedite reasoned, that it am doing observing merits of The court “What I the claim. as I are, and, B, A, we heck of a time to where get has taken us a long it, at light an There is no sight. understand there is little end prospect of the end the tunnel.” (Italics added.) of to class in the in such certify
Part of what the court the first place prompted a limited that of the class action would superiority manner was belief encourage judicial expedience. leave to the class
The fact that filed a fourth motion for modify appellants definition class undermines own years after five of certification appellants’ of the class certification order. arguments regarding superiority original the class Each for clаss modification the court reason to gave motion question claims action as to adjudication. Contrary a method of superior appellants’ that the trial under the fractious court folded “simply respondent’s repeated class,” attacks on have the lack of demonstrated appellants superiority their own for leave to filing modify class status motions continually include class definition. last class to request Appellants’ expand form, members as class who did not even the same contract sign original done, members the trial concerns about the triggered had court’s superiority of the class action. the court a final to show opportunity extended
Accordingly, appellants its the court benefit class treаtment by issuing the substantial provided by trial order to show cause. As rationale for the court’s decertifica- purported bothered,” order, to be rather tion “the court did not want suggest, appellants than the concern with the class action not from the coming parties’ court’s Rather, number failure attend to the the court’s focus on the proceedings. of those was observation to the lack of effectiveness an as proceedings class itself. The makes evident in the decertifica- action court this point “Indeed, today giving we are tion order: to hear plaintiffs, farther from class class notice than we were March date the original on \the order], we still need to revisit issue of because certification cleаr, the issues definition. As this makes chronology ... definition taken indepen- the members the class have on a life identification *13 the dent the merits the become litigation, indeed have apparently added.) (Italics force.” driving the In the the case and record on history specifically appeal view of about the court’s the decertification it that comments proceedings, appears actions, unsound, were but one UCL remedies in albeit legally representative 980 of the court’s the and in
component analysis of issues1 “superiority” my undermine do not otherwise court’s the reasons for opinion primary, sound the decertifying class.
2. Interest Community of observes, As the the is defined majority aptly “community interest” by, issues, other whether of law among common issues or fact over predominate issues to individual class and whether unique members the class representa- Stores, (Sav-On tives have claims of the class. Inc. v. typical Drug Superior 319, 906, Indeed, (2004) 194].) Court 34 Cal.4th 326 Cal.Rptr.3d 96 P.3d [17 burden the for the for class moving certification is that some party exist, common but issues that substantial evidence in the record shows common (Lockheed issues Martin predominate. Superior v. Court Corp. 1096, 1, (2003) 913].) 29 Cal.4th 1108 63 P.3d Here Cal.Rptr.2d by [131 common of law and considering whether fact the questions predominated, trial court (Walsh used criterion for the class. v. proper decertifying IKON Solutions, 1440, (2007) Inc. 148 1451 Cal.App.4th Cal.Rptr.3d [56 Office 534], Galleries, v. (1982) Ferdinand Roten Inc. citing Grogan-Beall 969, 975-977 of class was Cal.App.3d Cal.Rptr. [184 411] [decertification based on criterion where the determined was a proper court there lack of commonality].)
A review of the through court’s various of the case prior rulings stages that shows of interest had an community remained essential always criterion in the court’s consideration of whether class treatment was justified. Moreover, in determining whether a class action was method of a superior claims, the trial that lack adjudicating court concluded a implicitly A a be commonality posed significant obstacle. action cannot main- tained where the existence of or be entitlement has to determined damages basis, (Basurco on even if there are common case-by-case some questions. (2003) 21st Century Ins. Co. Cal.Rptr.2d Cal.App.4th [133 367] Cal.4th, 906, citing Mutual Bank v. Court Washington Superior 1071].) 15 P.3d This tracks the used Cal.Rptr.2d principle language throughout proceedings court’s below the court’s concern explains with inclusion of extrinsic rationales for evidence. court’s Specifically, the class certification decertification the court’s awareness of the display how it would commonality issue and be affected individualized inquiry entitlement to damages:
“If the extrinsic evidence with to the demonstrates named respect plaintiffs terms, that under a they that affect the signed particular up plan’s of their viability individual claims. court, that, 1 note appellants’ arguments Proposition in this are minimal and on 64 issue
relegated reply brief. *14 March 2003 Certification fundamental of the Court’s “The premise that, class common- the to this sаtisfies was claims ‘[l]imiting proposed Order into law, and avoids individualized inquiry the issues of fact of ality to The or entitlement damages.’ the class either for inclusion into qualification into been called that has not only discussed above reveal this premise facts arguments.” own but has been refuted by plaintiffs’ question, actually order, that Thus, with the view the certification the court acted original However, the appell- fact on the face of contract. questions predominated For existed. commonality that no such ants’ actions subsequent proved class definition was motion for leave to the modify last example, appellants’ signed by any V.7.99 form—not on an contract—the based entirely separate form If different signed member of thе class. the two had original groups contracts, exists on then that the issues argument commonality appellants’ To the the of the form strains credulity.2 compound “face” contract V9.96 each member’s contract confusion in claim appellants’ argument, appellants evidence, also along yet individual review with constitutionally requires parol how I do not understand contend that the contract itself fully integrated. common to fact could be found when parol questions predominate for evidence is needed to substantiate the terms of each claimant’s assertion individual recovery purposes.
Furthermore, exact individual contract review demonstrates the appellants’ the court to avoid on the in thе burden wished its restrictions class through interest, community order. In the needed for a original defining “typicality” the trial court must first determine that members of the class have sustained the (Caro same or Procter Co. damage. similar & Gamble 419].) The original only court’s order Cal.App.4th Cal.Rptr.2d action, one of causes of and did certified claims for several appellants’ so in a limited to consumers and restricting refusing fashion the class certain to evidence to the existence of class any prove individualized permit parol fraud claims. The court denied class treatment on contract and appellants’ because extrinsic evidence needed to prove claims evidence or parol Instead, would the court authorized claims be an obstacle adjudication. treatment for UCL in such a so as to preserve claims way either and to “avoid” individualized into commonality inquiry issues for inclusion in the class or entitlement qualification damages. of the hesitance issuance certification order indicated court’s original for of class the use of individualized extrinsic evidence regarding proof claims. order, original briefly trial inclusion In its March 2003 certification court discussed the form, signed appears
of members who form of the “The evidence V.7.99 instead V.9.96 (‘V.7.99’) changed wording next which indicate that the form used 24-Hour Fitness suit, to be gives signed appear who a different form contract do not persons rise to this appropriate challenging for inclusion in a сlass the renewal terms in V.9.96.” *15 short, In been with having dissatisfied the court’s certification original start, order from every have exercised seek the appellants opportunity Thus, and redefinition expansion, of the class. the class certification has stage believes, taken on a of its own life from the merits. The separate majority however, that because these efforts to class have all been expand unsuccessful, interest and in the commonality of facts class remains. In contrast, I these believe efforts demonstrate the claims are against respondent complicated diverse an individualized factually requiring assessment which makes class treatment unworkable. simply
In view of the I affirm. foregoing, would 14, 2008, A for a denied petition was November rehearing respon- dent’s for review petition Court was denied Supreme February J., S168727. did not Werdegar, therein. participate