We conclude the court did not abuse its discretion or misapply the law in denying class certification. Rather, the underlying problem with the class certification motion appears to be attributable to class counsel's premature filing of the motion without first conducting sufficient discovery to meet its burden of demonstrating there are means of identifying members of the putative class so that they might be notified of the pendency of the litigation. This failing jeopardizes the due process rights of absent class members, and rather than relieve the class representative of the obligation to make such a showing-as Noel's counsel seems to suggest-we affirm the trial court's denial of the class certification motion.
I. BACKGROUND
A. Factual Background
On July 4, 2013, Noel purchased an inflatable Kids Stuff Ready Set Pool (Ready Set Pool) from a Rite Aid
B. Procedural Background
On November 18, 2013, Noel filed this class action seeking restitution for all consumers who purchased a Ready Set Pool from a Rite Aid store located in California during the four years prior to that date. Following Rite Aid's unsuccessful demurrer to the complaint, Noel moved for class certification on May 12, 2014, apparently after having taken limited discovery,
On August 15, 2014, Christopher Wimmer of the Emergent Legal firm in San Francisco substituted in as Noel's counsel of record and also serves as his counsel on appeal. Wimmer attended the August 22 hearing on the motion for class certification. Despite his recent entry into the case, Wimmer did not request a continuance of the hearing, nor did he seek to withdraw the motion or to supplement the evidentiary showing. The hearing went forward as scheduled on August 22, 2014, with Wimmer representing Noel and the putative class.
Judge Paul M. Haakenson denied Noel's motion on the UCL and FAL causes of action, finding Noel did not satisfy the class ascertainability requirement for certification under Code of Civil Procedure section 382.
Judge Haakenson also denied the class certification motion on the CLRA cause of action. Due to the stricter proof requirements under the CLRA, the court found Noel had not shown the commonality of issues required for the CLRA. It reasoned "the CLRA requires that all class members must show actual injury in order to recover damages, restitution and/or injunctive relief, unless the advertisement is materially misleading. ( Civ. Code[,] § 1780(a) ; Steroid Hormone Product Cases [ (2010) ] 181 Cal.App.4th [145,] 155 [
II. DISCUSSION
A. The Legal Landscape
The CLRA protects consumers against deceptive business practices in the sale of goods and prohibits a seller from representing that goods have characteristics they do not possess. ( Civ. Code, § 1770, subds. (a)(4) - (a)(5) & (a)(7) ; see Klein v. Chevron U.S.A., Inc. (2012)
Two class action statutes are at issue here. The first, more widely operative statute is Code of Civil Procedure section 382, which governs class actions generally, including actions under the UCL and FAL. Under that statute, a certification motion may be granted where there is "an ascertainable class and a well-defined community of interest among class members." ( Sav-On Drug Stores, Inc. v. Superior Court (2004)
The CLRA contains its own provision for class actions, similar in many respects to the requirements just cited, under which a court must certify a class when: "(1) It is impracticable to bring all members of the class before the court. [¶] (2) The questions of law or fact common to the class are substantially similar and predominate over the questions affecting the individual members. [¶] (3) The claims or defenses of the representative plaintiffs
B. Standard of Review
"On review of a class certification order, an appellate court's inquiry is narrowly circumscribed. 'The decision to certify a class rests squarely within the discretion of the trial court, and we afford that decision great deference on appeal, reversing only for a manifest abuse of discretion: "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." ' " ( Brinker Restaurant Corp. v. Superior Court (2012)
In addition, we must examine the trial court's stated reasons for denying class certification. ( Linder , supra ,
C. The Trial Court Did Not Apply the Wrong Legal Standard in Finding There Was No Ascertainable Class for Noel's UCL and FAL Claims.
Bringing forth evidence to show the proposed class was ascertainable was Noel's burden. ( Sav-On , supra ,
Noel's emphasis on precision of drafting is not incorrect, but it is somewhat beside the point. Precision of definition chiefly comes into play if the defendant claims the class definition is overbroad or otherwise flawed. Here Rite Aid's opposition to class certification did not turn on the class definition, but rather the lack of records through which to identify class members. Noel failed to articulate and support with evidence any means of identifying potential class members, as required by case law. ( Sotelo , supra ,
Instead of arguing he met the three-factor Sotelo standard by pointing to a realistic method by which class members might be identified, Noel takes issue with Sotelo itself.
Noel claims the correct standard of ascertainability is that set forth in Estrada v. FedEx Ground Package System, Inc. (2007)
In Estrada , delivery truck drivers for FedEx Ground Package System, Inc. (FedEx), who owned their own trucks, sued FedEx for reimbursement of certain job-related expenses. With regard to certification, the main dispute on appeal did not involve the adequacy of the class definition, which (through various iterations in the trial court) was precise, limiting, and allowed for self-identification. The real dispute was whether, because of the legal requirements of the underlying causes of action, the claims against FedEx would require proof by individual members of the class, or whether instead "common questions of law or fact [would] predominate...." ( Estrada , supra ,
"The trial court defined the certified class to include present and former drivers who personally perform or performed pickup and delivery services for FedEx on a full-time basis in a single work area or route (SWA's). Drivers who operate or operated in multiple work areas or routes (MWA's), corporate entities, and others were excluded from the class." ( Estrada , supra ,
Rite Aid relies on Sotelo , supra ,
In Sotelo , the plaintiffs sought to certify a class of people who worked " 'for or on behalf of' " various newspaper companies " 'in folding, inserting advertising materials into, bagging, bundling, loading, and/or delivering said newspaper to its residential subscribers ... and whom no defendant has
The trial court in Sotelo denied certification, and Division Two of this District affirmed because the " 'lack of objective evidence (such as business records) that indicate class membership' " led to " 'an actual obstacle to identifying persons' " who fell within the defined class. ( Sotelo , supra , 207 Cal.App.4th at pp. 648-649,
The issue in this case is similar. Noel submitted no evidence the class members could readily be identified-or identified at all-from Rite Aid's records. He pointed to Rite Aid's interrogatory responses relating the number of pools sold (20,752), the number of pools returned (2,479), and Rite Aid's gross revenue from sale of the pools ($949,279.34), but submitted nothing offering a glimmer of insight into who purchased the pools or how one might find that out. He neither described nor produced Rite Aid's records from which these numbers were derived, nor did he indicate how much other information those records might reveal. Unless Noel could propose some realistic way of associating names and contact information with the 20,000-plus transactions identified by interrogatory response, there remained a serious due process question in certifying a class action.
While Noel was not required to actually identify the 20,000-plus individuals who bought pools, his failure to come up with any means of identifying them was a legitimate basis for denying class certification. The 2,479 people who returned their pools presumably would be excluded from class recovery, but the court had no evidence concerning whether or how that subset could be identified. Addressing the issue of notice in his moving papers below, Noel
To the extent Noel acknowledges the test employed by Sotelo has any validity, he suggests it should be restricted to employment class actions and held inapplicable to consumer class actions. Rite Aid, for its part, suggests cases employing the Estrada test involved either a pre-existing contractual relationship between the defendant and members of the class or cases of shoddy recordkeeping in which the defendant was under a legal obligation to keep records. We think it inappropriate to pigeonhole either test for use only in a specific category of subject matters. Instead, the utility of one test or the other should turn on how the parties have framed the issues in an individual case based on their pleadings, briefs, and evidence in the class certification proceedings. When the defendant claims the class definition is overinclusive or ambiguously worded, the Estrada test may provide the best analytical framework. When the defendant's opposition to certification is based on inability to ascertain the identity of class members due to a lack of records, the three-part test used in Sotelo may better serve. The trial court did not
We note Sotelo was criticized by Aguirre , supra ,
The thrust of Aguirre was that the "means of identifying" class members under the three-part test used in Sotelo required only that there be a means for class members to identify themselves when it became necessary to prove class membership or damages to partake in the judgment, just as Noel argues here. ( Aguirre , supra , 234 Cal.App.4th at pp. 1299-1306,
Aguirre reasoned that requiring a class plaintiff to identify "a means for providing personal notice of the action to individual class members" would "conflict with" the notice by publication provisions applicable to class actions. ( Aguirre , supra ,
The opinion in Aguirre seems to assume that personal notice could be, even should be, disregarded completely at the class certification stage. The putative class in Aguirre numbered about a million. ( Aguirre , supra , 234 Cal. App. 4th at pp. 1295, 1302, fn. 7,
Indeed, California Rules of Court, rule 3.766(c)(3), provides that the trial court must, "[u]pon certification of a class, or as soon thereafter as practicable," issue an order regarding class notice, including "[t]he time and manner of notice[.]" To suggest, as Aguirre did, that the trial court must blind itself to the manner of notice until after the conclusion of the certification proceeding appears to run counter to this provision of the rule and to bind unduly the trial court's hands in determining notice issues.
Aguirre held a "representative plaintiff need not identify, much less locate, individual class members to establish the existence of an ascertainable class." ( Aguirre, supra,
Aguirre acknowledged, as have other cases, that the purpose of the ascertainability requirement is the due process concern of facilitating notice to the class. ( Aguirre , supra , 234 Cal.App.4th at pp. 1300-1301,
Aguirre relied in large part on
Noel, even after having had an opportunity to conduct discovery, presented no evidence of a practical or even viable means of identifying the individuals associated with the more than 20,000 transactions disclosed by Rite Aid's sales records for purposes of giving them notice. He has not attempted to prove or even explain how Rite Aid's records might be mined for evidence of customer identity or cross-referenced with other available evidence to obtain the identities of the purchasers of the Ready Set Pool or any means of contacting them. Nor has he established that personal notice cannot be given. On this record, the trial court made no finding that the proposed class was unascertainable on any conceivable set of facts; rather, what the court concluded was that the class cannot be ascertained on the evidentiary showing Noel made, which lacked any level of assurance that there is an available means to notify putative class members of the pendency of the action-at the beginning of the proceeding, rather than at the end when all is said and done. We cannot say the court's call denying certification in these circumstances was an abuse of discretion.
Our holding on this point, we realize, may be contrary to that of Aguirre . But in view of the deference owed the trial court and the anemic showing by Noel, we see the issue somewhat differently than our Third District colleagues saw it on the record presented there. We hasten to add that we do not view the modest evidentiary burden that was imposed in this case as something so onerous that it must portend the end of " ' "such thing as a consumer class action." ' " ( Aguirre , supra , 234 Cal.App.4th at pp. 1301,
D. The Trial Court Did Not Apply the Wrong Legal Standard Under the CLRA in Determining That Class Claims Do Not Predominate Over Individual Claims.
The CLRA cause of action based on false advertising required proof of reliance and harm as to each class member ( Tucker v. Pacific Bell Mobile Services (2012)
A consumer may satisfy his or her burden of showing causation under the CLRA by showing materiality of the illegal act. ( In re Vioxx Class Cases (2009)
Conversely, if the issue of reliance or causation is a matter that would vary from consumer to consumer, the issue is not subject to common proof, and the action is not properly certified as a class action. ( Tucker , supra ,
The trial court reasoned that some members of the class may not have relied on the photograph in purchasing their pools, and might instead have relied on the advertised 8' x 25' size of the pool, also prominently displayed on the box. Because "to obtain relief under the CLRA, both the named plaintiff and unnamed class members must have suffered some damage caused by a practice deemed unlawful under" that act ( Steroid Hormone Product Cases , supra , 181 Cal.App.4th at pp. 145, 156,
We might not characterize the determination in just the way Judge Haakenson did, but we think his order implied a substantial number of pool purchasers, not merely a handful, may have been motivated by the dimensions of the pool rather than by the photo. The court's conclusion about what could influence pool buyers' purchasing decisions was not an unreasonable inference from the evidence. The court's entire discussion of materiality and commonality showed it did not misunderstand the decision it was called upon to make. And because materiality had not been demonstrated on a classwide basis, the court concluded causation, too, was an individual issue.
Noel contends the court required him, in effect, to prove the merits of his CLRA claim, which he insists was not required at the certification stage. We agree the merits are not to be resolved at class certification ( Brinker , supra ,
E. The Court Did Not Abuse Its Discretion in Finding a Class Action Was Not Superior to Litigation of Individual Claims.
The trial court also found a class action would not be "superior" to individual litigation of the claims asserted by Noel. Noel was not required to show a class action was superior to individual litigation under the CLRA to have his certification motion granted, but such a showing was required for the FAL and UCL claims. ( Thompson , supra , 217 Cal.App.4th at pp. 727-728,
F. The Court Did Not Abuse Its Discretion by Denying a Continuance.
As indicated above, it appears to us the class certification motion failed in
Even assuming Wimmer's ambiguous statement were to be understood as a request for a continuance, the trial court did not err in denying the request. A trial court has broad discretion to grant or deny a continuance, and its discretion will be reversed only when an abuse of discretion is clear. ( Link v. Cater (1998)
Although Noel retained new counsel between the filing of the motion and the hearing on it, nothing compelled Wimmer to proceed with the motion if he concluded insufficient discovery had been conducted, or he did not have time to prepare for the hearing. Wimmer could have withdrawn the pending motion and conducted further discovery before refiling it. Alternatively, he could have requested a continuance of the hearing on the class certification motion to allow him to review the discovery already taken and to supplement it if he thought it necessary to carry his burden in representing the putative class. Being new to the case, it seems highly likely the court would have allowed him time to conduct further discovery if he had made the request before the hearing on the previously filed motion.
Because Noel's counsel were responsible for the timing of the motion, it was not an abuse of discretion to hold them to the proof of facts necessary to certify the class. That class actions are generally favored ( City of San Jose v. Superior Court (1974)
The order denying class certification and denying a continuance for the taking of further discovery is affirmed. Rite Aid shall recover its costs.
We concur:
Ruvolo, P.J.
Rivera, J.
Notes
Thrifty Payless, Inc. does business as Rite Aid. We refer to the defendant as Rite Aid, as the parties have done.
On March 25, 2014, Noel responded to Rite Aid's first set of special interrogatories, prefacing his response to each interrogatory with the following objection: "PLAINTIFF objects to this contention interrogatory as premature, as discovery has only begun in this action." Despite this acknowledgment, less than seven weeks later, Gaw filed his class certification motion. We also note that the first set of special interrogatories that Gaw propounded to Rite Aid, which were answered on February 18, 2014, asked no questions regarding the location or nature of any records maintained by Rite Aid relating to identifying purchasers of the Ready Set Pool, asking instead about the number of pools sold, the revenue derived from those sales, the number of pools returned, and the identities of people involved in the manufacture of the pool and the development and approval for use of the Ready Set Pool box. A second set of interrogatories propounded to Rite Aid was answered on May 1, 2014; again the interrogatories included no questions relating to Rite Aid's maintenance of records regarding the purchasers of the pools or how their identities might be ascertained.
The Ready Set Pool came with very specific instructions for handling, including that it was necessary for two adults to set up the pool; it must be installed on ground having no greater than a three-degree slope, with no rocks, mounds, or other irregularities; and the top ring must not be inflated beyond 85 percent capacity.
The CLRA does not mention the class must be ascertainable. (Thompson v. Automobile Club of Southern California(2013)
James Noel passed away on January 31, 2016, while the appeal was pending. His widow, Diana Nieves Noel, substituted in as appellant. When we refer to "Noel," we mean James Noel and use the masculine pronoun.
Though the Sotelo test is criticized by Noel, who treats it as an outlier, Sotelo is not unique in employing the three-factor test of ascertainability. In fact, the three-factor test did not originate with Sotelo, but rather has been used when appropriate for many years. (See, e.g., Reyes v. Board of Supervisors(1987)
The court did not cite Sotelo or any other case in support of its reasoning. That is irrelevant, however, because its reasoning was supported by Sotelo and similar cases.
A panel of this Division cited these aspects of Aguirre with approval in Nicodemus, supra,
Rule 3.766(f) provides: "Court may order means of notice If personal notification is unreasonably expensive or the stake of individual class members is insubstantial, or if it appears that all members of the class cannot be notified personally, the court may order a means of notice reasonably calculated to apprise the class members of the pendency of the action-for example, publication in a newspaper or magazine; broadcasting on television, radio, or the Internet; or posting or distribution through a trade or professional association, union, or public interest group."
Aguirre also relied on Reyes, supra,