ORDER GRANTING DEFENDANTS’ MOTION FOR DECERTIFICATION AND DENYING PLAINTIFFS’ MOTION TO INTERVENE ADDITIONAL CLASS REPRESENTATIVES
Dеfendants’ Motion for Decertification of Classes and Plaintiffs’ Motion to Intervene New Class Representatives came on regularly for hearing before this Court on duly 10, 2000. After considering the materials pre
I. Factual and Procedural Background
The Court has previously recited the factual background in this ease at length. See O’Connor v. Boeing North American, Inc.,
A. Previous Certification Motions.
These motions comprise the third time that the Court has considered the viability of class treatment under Rule 23 of the Federal Rules of Civil Procedure. In October 1997, the Court found that Plaintiffs had failed to show that class treatment was appropriate. Accordingly, the Court denied Plaintiffs’ motion to certify. See O’Connor I,
Six months later, in April 1998, Plaintiffs filed a second motion to certify. See O’Connor v. Boeing North American, Inc.,
Class I: All persons (1) presently residing or working within the Class Area or who have resided or worked in the Class Area at any time since 1946, and (2) who have not been diagnosed with certain serious illnesses.
Class II: All persons who own real property located within the Class Area.
Class III: All persons presently residing or working within the Class Area or who own real property located within the Class Area.
Harold and Joyce Samuels currently represent Class I. Lawrence O’Connor, Margaret O’Connor, Mary Jane Vroman, Robert Grandinetti, Donald Reed, and William Rueger represent Class II and Class III.
Class I asserts various claims ultimately seeking (1) declaratory relief that “Defendants’ discharge of radioactive contaminants and/or hazardous, non-radioactive substances into the environment from the Rocketdyne Facilities is unlawful and violates both federal and state law”; and (2) “the establishment of a comprehensive, court-supervised program of medical monitoring designed to ensure the early detection of any latent diseases, illnesses and/or other health problems for members of Class I who, as a result of their exposure to the radioactive contaminants and/or hazardous, non-radioactive substances released into the environment form the Rocketdyne Facilities, have an increased risk of such health problems.” (Fourth Amended Complaint (“FoAC”) at 67:15-25.)
Class II asserts various claims seeking injunctive relief and damages based on injury to property.
Class III asserts two claims. First, it seeks response costs and damages under the Comprehensive Environmental Response Compensation Liability Act, 42 U.S.C. § 9659 (“CERCLA”). Second, under California’s Unfair Business Practices Act, Cal. Bus. & Prof.Code § 17200, the Class seeks injunctive relief requiring Boeing to disclose information, refrain from discharging toxic substances, and clean up the contamination it has caused. (FoAC at 68:7-14.)
B. Defendants’ Summary Judgment Motion.
At the end of December 1999, Defendants filed a motion seeking summary judgment on
In contrast, the Court denied summary judgment on the class claims. However, the Court substantially limited the claims asserted by the class representatives. After reviewing the individual factors affecting the Samuels, the Court found that they could recover on their Class I claims only for any exposure that occurred after 1991. O’Connor SJM,
C. Present Motions.
In light of the Court’s summary judgment rulings and the highly individualistic nature of the statute of limitations analysis, the Court voiced concerns about the continued viability of the class claims. Id. at 1054. Defendants responded to the Court’s concerns by filing a motion to decertify the classes. Plaintiffs oppose Defendants’ request.
Moreover, Plaintiffs filed a motion to intervene seeking to introduce new class representatives who purportedly would not be limited under the Court’s summary judgment analysis. Defendants oppose Plaintiffs’ efforts.
II. Analysis
A. Standard on Motion to Decertify.
A district court’s decision to decertify a class is committed to its sound discretion. See Knight v. Kenai Peninsula Borough School Dist.,
Once a class is certified, “the parties can be expected to rely on it and conduct discovery, prepare for trial, and engage in settlement discussions on the assumption that in the normal course of events it will*410 not bе altered except for good cause. Sometimes, however, developments in the litigation, such as the discovery of new facts or changes in the parties or in the substantive or procedural law, will necessitate reconsideration of the earlier order and the granting or denial of certification or redefinition of the class.”
Cook v. Rockwell Internt’l Corp.,
The standard used by the courts in reviewing a motion to decertify is the same as the standard used in evaluating a motion to certify. This Court previously discussed the standard when it considered Plaintiffs’ certification motions. See O’Connor I,
Plaintiffs point out that the Court should not consider the merits of their claims or the likelihood of their success in proving those claims. Accord O’Connor II,
1. The Court can consider its summary judgment rulings.
Generally, a court should not consider the merits of a class claim in determining whether to certify a class. Valentino,
At the same time, the “no-merits” rule is not an inflexible rule. A court may look beyond the pleadings at the substantive claims of the parties to decide whether the elements of Rule 23 have been met. See O’Connor II,
Finally, the “no-merits” rules cannot possibly mean that the Court must ignore its rulings and the case history. The Court has made legal and factual rulings that, absent good cause, will not change. It is apparent that the Court is free to rely on these rulings even though the rulings go to the merits of Plaintiffs’ case. Cf. Fed.R.Civ.P. 23(c)(1) (indicating that certification order may be altered or amended before final decision); O’Brien v. Sky Chefs, Inc.,
2. The Court can consider the statute of limitations defense.
Plaintiffs also rely on cases in which courts refused to consider the limitations defense in a class certification evaluation. See In re Nat’l Student Marketing Litig.,
Some courts have denied class certification on the ground that the limitations defense made class treatment inappropriate. See Barnes v. The American Tobacco Co.,
Accordingly, the Court is free to consider its previous summary judgment ruling and the limitations defense in evaluating the propriety of maintaining the classes.
B. Changes since Certification Order.
Plaintiffs argue that nothing has changed since O’Connor II except that the Court ruled on the summary judgment motion and some additional certification opinions have been published. (See Pis.’ Opp. at 8.) Although Plaintiffs may be technically correct, their argument severely underestimates the significant impact of the summary judgment order upon this litigation.
In its summary judgment order, the Court found that the Class II and III representatives had not properly pled the “discovery” rule. O’Connor SJM, 92 F.Supp.2d at 1053. Thus, their claims were limited to conduct that occurred after March 1994 or March 1993, depending on the claim. The Court also found that the Samuels’ Class I claims were limited to exposure that occurred after 1991. Id. Considering that the class claims seek relief based on injurious conduct that allegedly occurred as far back as 1946, the representatives’ claims are substantially limited.
Additionally, in applying the statute of limitations to the Samuels and the many personal injury plaintiffs, the Court considered several factors that varied from individual to individual: (1) when and how each Plaintiff actually discovered his or her claims; (2) the newspaper readership of each Plaintiff; (3) the community group membership, or lack of it, of each Plaintiff; and (4) the residency history of each Plaintiff. See O’Connor SJM,
Plaintiffs appear to concede that the limitations defense raises individual issues.
C. Class I Claims.
Class I was certified pursuant to Rule 23(b)(2). Rule 23(b)(2) provides that plaintiffs may maintain a class action if “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making apprоpriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Defendants argue that the Court should decertify the class because the class is not cohesive and no longer meets the Rule 23(a) requirements of typicality and adequacy.
1. The “cohesiveness” requirement.
Defendants assert that Rule 23(b)(2) has an implicit “cohesiveness” requirement that is similar, if not more stringent, than the predominance requirement of Rule 23(b)(3).
[W]ith respect to 23(b)(2) in particular, the [defendant’s] dogged focus on the factual differences among the class members appears to demonstrate a fundamental misunderstanding of the rule. Although common issues must predominate for class certification under Rule 23(b)(3), no such requirement exists under 23(b)(2). It is sufficient if class members complain of a pattern or practice that is generally applicable to the class as a whole.
Walters,
2. Rule 23(a) requirements.
A class must satisfy all the requirements of Rule 23(a). As part of these requirements, plaintiffs must show that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed.R.Civ.P. 23(a)(3). Additionally, plaintiffs must show that “the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4).
The typicality requirement of Rule 23(a)(3) does not require that the class representatives be identically situated with respect to all the other class members. CRLA v. Legal Services Corp.,
The adequacy of representation requirement “serves to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem,
Here, the summary judgment order has substantially restricted the Samuels’ claims as compared with the relief sought on behalf of Class I members. In its certification order, the Court concluded, “Because Defendants have not proven that the Samuels’ claims are time-barred and discovery has not concluded, the Court does not find that the Samuels’ claims lack typicality based on the statute of limitations.” O’Connor II,
Plaintiffs, however, argue that new representatives could sufficiently protect the interests of the class and satisfy the typicality and adequacy requirements of Rule 23(a). Putting aside the inadequacy of the Plaintiffs’ present motion to intervene, see § G infra, the Court is not convinced that new representatives could salvage the class.
Finally, although the Court noted that its certification order could be amended to restrict the claim to certain time periods,
D. Class II and III Claims Subject to “Discovery” Rule.
Defendants sought summary judgment on all Class II and Class III claims except the continuing nuisance and trespass claims. By definition, the continuing claims are not subject to the discovery rule. On a continuing claim, a plaintiff can only recover for the injury suffered within the last three years. Similarly, the Court found that the discovery rule did not apply to § 17200 claims. Because of this difference, the Court first addresses the claims subject to the discovery rule. The continuing trespass, continuing nuisance, and § 17200 claims are addressed in the next sections.
I. Rule 23(b)(3) requirements.
The Court certified both Class II and Class III under Rule 23(b)(3). Under Rule 23(b)(3), an “action may be maintained as a class action” only if “questions of law or fact common to the members of the class predominate, and ... a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed. R.Civ.P. 23(b).
a. Predominance of common questions of law or fact.
“Implicit in the satisfaction of the predominance test is the notion that the adjudication of common issues will help achieve judicial economy.” Valentino,
The limitations defense issues that arose during the summary judgment proceeding shift the balance of factors in this ease. In its previous certification order, the Court barely mentioned the effect of the statute of limitations. Indeed, in addressing the Class II and Class III claims, the Court did not even consider the limitations defense.
Moreover, even assuming that the Court had considered the matter, it is unlikely that the result would have been any different at that time. In response to Defendants’ limitation defense, Plaintiffs had asserted that Defendants had “secreted” and “denied” any wrongful conduct. (FoAC H 190.) Addition
The Court also finds unpersuasive Plaintiffs’ reliance on Ungar and Lamb. In Ungar, the district court found that the statute of limitations did not appear to affect most of the class members and that any limitations problems “could be determined in due course in the separate trials on damages.” Ungar,
Additionally, the Court notes that the Third Circuit overruled the Ungar court’s certification order. Ungar v. Dunkin’ Donuts of America, Inc.,
As to Lamb, the issue of certification arose early in the litigation. The Lamb court certified in the face of a limitations defense because the defendant had the burden of proof on that defense. Lamb,
The situation here is considerably different. The statute of limitations defense is not untested. It was the subject of a weighty summary judgment motion and it proved substantially successful. Furthermore, the limitations defense raises substantial individual questions that vary among class members. The Lamb court provides no indication in its opinion that it faced a similar scenario.
Based on the individualized, fact-intensive nature of the necessary inquiry in this ease, the statute of limitations issues preclude a finding that common issues predominate over individual issues on most Class II and Class III claims. Cf. Barnes,
b. Superiority of class action.
Besides a predominance of common questions, the proponent must also show that the class action is the superior method of adjudicating the controversy. Valentino,
Plaintiffs argue that “the appropriate method for addressing individual issues such as statute of limitations defenses is via questionnaires at the claims stage.” (Pis.’ Opp. at 25.) Plaintiffs’ proposal, however, eviscerates the role of the limitations defense in this ease. As shown by the evidence presented by the parties in connection with the summary judgment motion, the application of the limitations defense in this matter is not based on easily verifiable “objective” criteria.
Plaintiffs propose that the Court hold those individual trials only after Plaintiffs establish Defendants’ overall “liability” in a class trial. Unfortunately, Plaintiffs do not acknowledge that the limitations defense also precludes liability for wrongful conduct falling outside the limitations period. Thus, at least in this ease, a class trial on liability without any reference to the limitations defense runs “the real risk ... of a composite case being much stronger than any plaintiffs individual action would be ... [and] permitting] plaintiffs to strike [Defendants] with selective allegations, which may or may not have been available to individual named plaintiffs.” Broussard,
Especially considering the other management options mentioned by Defendants, (Defs.’ Reply at 24), the Court finds that class treatment is not the superior way of treating the Class II claims for non-continuing property damage
2. Plaintiff’s intervention motion is moot.
The Court’s decision to decertify these class claims does not rely upon the individual characteristics of the class representatives. Accordingly, the result would be no different if Plaintiffs named different class representatives. Thus, Plaintiffs’ motion to intervene as to these claims is now moot and is denied to that extent.
3. Rule 23(a) requirements.
As with the Samuels’ claims, the summary judgment order has severely restricted the Class II representatives’ claims as compared with the relief sought by the class. Similarly, the Class III representatives’ CERCLA claim is severely restricted as compared with. the relief sought by the class. Moreover, it is possible that some class member could conceivably recover for wrongful conduct for which the present class members could not recover.
Plaintiffs argue that, in any event, the Court should not decertify the continuing claims
1. Rule 23(a) requirements,
a. Class Definition under Rule 23(a)(1).
To satisfy the requirements of Rule 23(a)(1), a plaintiff must establish that a class does in fact exist. O’Connor II, 184 F. R.D. at 319. “A class definition should be ‘precise, objective, and presently ascertainable.’ ” Id. (quoting Manual for Complex Litigation Third § 30.14 at 217 (1995)). In their motion to certify the class, Plaintiffs defined the class by reference to a contamination area. Id. at 320. Expert models simulating dispersion of toxic substances, in turn, defined the borders of the contamination area. Specifically, the models showed the dispersion of a toxic groundwater plume and toxic air plumes. Id.
The model for groundwater plume was based on a theoretical release of tricholoroethylene (“TCE”) over a forty year period from the 1950’s to the 1980’s. Id. at 321-23. In opposing the motion for certification, Defendants put forth evidence showing that recent well samplings disclosed a lack of TCE contamination. Id. at 323-24. The Court noted that “the data relied on by Defendants to support their argument that no TCE contamination exists related to water testing performed in the late 1980’s and the 1990’s, when TCE released during the 1950’s through 1970’s would have already migrated past the monitoring point.” Id. at 323. The Court made similar findings in regard to the air plumes. See id. at 325.
Thus, although the Court found that the class definition was reasonable for purposes of claims seeking relief for the injuries resulting from decades of contamination by Defendants, the present class definition is not reasonable for a lawsuit seeking to recover for property damage that occurred only after 1994.
b. Typicality and adequacy requirements.
Additionally, the Court finds that maintaining a class action lawsuit based solely on the continuing claims would not adequately protect the interests of the unnamed class members. The representative parties would inadequately protect the interests of the class because they are seeking limited relief for an injury based on limited legal grounds. Thus, the interests of the unnamed class members could be compromised by the doctrine of claim preclusion.
“The doctrine of claim preclusion (res judicata) provides that a final judgment on the merits bars a subsequent action between the same parties or their privies over the same cause of action.” In re Imperial Corp. of America,
(1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts.
Imperial Corp.,
At least theoretically, the unnamed class members can raise any of the various claims (legal theories) that will be decertified. Indeed, the class representatives are proceeding on each of the claims that will be decertified, albeit restricted to injuries occurring within the limitations period. Those other theories could provide a greater level of relief for the samе injury than would be provided by the continuing claims. See Capogeannis v. Superior Court,
Accordingly, if the Court allowed Plaintiffs to proceed to judgment as a class on the continuing claims, the unnamed class members could be precluded from prosecuting claims that might provide for a greater level of recovery. Such a result would occur whether or not the continuing claims prove to be successful.
2. Rule 23(b)(3) requirements.
The Court also finds that maintaining a class claim for the continuing claims would not satisfy the requirements of Rule 23(b)(3).
a. Predominance of common questions.
In its certification Order, the Court accepted Plaintiffs’ representation that they would “establish on a class-wide basis the extent to which the population and real prоperty surrounding the Rocketdyne Facilities was exposed to Defendants’ releases of the Contaminants.” O’Connor II,
The Court’s findings in granting certification illustrate the problem of giving class treatment to the continuing claims. A plaintiff seeking to recover for a permanent trespass or nuisance may potentially recover for “all past, present, and future damage.” Baker v. Burbank-Glendale-Pasadena Airport Authority,
Clearly, Plaintiffs’ class-wide showing of injury depends on establishing liability under legal theories that permit full recovery for thаt injury. Thus, Plaintiffs have not explained how damage under the legal theories of continuing trespass and nuisance can be calculated on a class-wide basis.
Of course, Plaintiffs claim that they can establish the extent оf each property’s contamination on a class-wide basis. The extent of contamination, however, is insufficient to establish abatability. See Mangini,
The Court certified this case two years ago even though these individualized questions were, at that time, part of the equation. As Plaintiffs talismanically state, nothing has changed in regards to the continuing nuisance and trespass theories of recovery. However, after considering Defendants’ summary judgment motion, the Court believes that it has a more reаlistic appreciation of the effect of individualized questions in this proceeding. Moreover, the Court considers it appropriate to acknowledge that the certification of this case over two years ago was, in the Court’s opinion, a close question. The Court’s decision to decertify the “permanent” claims
b. Superiority of class action.
The lack of predominance is best demonstrated by the continuing claims’ failure to fit into Plaintiffs’ proposed trial plan. In its previous order, the Court found that the class treatment was the superior mode of dealing with Plaintiffs’ property claims, in part, based on Plaintiffs’ trial plan. Plaintiffs described a four stage trial plan. See O’Connor II,
The few remaining issues, such as the response costs to which individual class members may be entitled under CERCLA and the restitution to which other class members may be entitled under the UCA, can be adjudicated on a class member by class member basis under the supervision of a court-appointed magistrate or retired judge.
(Id. at II18.) However, the individual question of whether a particular property is abatable cannot wait until the last stage. Indeed, a plaintiff can establish liability for a continuing nuisance or trespass only if he or she can show that the contamination is abatable. See Mangini,
In contrast, Defendants propose a management plan that could sufficiently provide a vehicle for multiple plaintiffs, without disregarding the individual issues that must be addressed before liability can be found.
[T]he related actions currently pending could be consolidated for pre-trial purposes____ [After motions for summary judgment, t]he claims that remain could be litigated according to a phased pre-trial plan requiring each plaintiff to establish, in stages [addressing] (1) evidence of exposure, (2) proof of general causation, (3) proof of specific causation in order to proceed____ The Court could then consider trial alternatives, such as bellwether trial plaintiffs, or consolidated trials.
(Defs.’ Reply at 24.) Although the Court in no way adopts Defendants’ proposed plan,
For all these reasons, Class II as a whole is decertified.
F. Section 17200 Claim.
Defendants seek to decertify the § 17200 claim on the grounds that (1) Plaintiffs are inadequate representatives under Rule 23(a), and (2) class treatment is not the superior method of treating § 17200 claims. The Court acknowledges that the § 17200 claims may suffer from the same deficiencies in satisfying the requirements of Rule 23(a) as that suffered by the continuing claims. The Court, however, does not reach any findings in connection with Rule 23(a) because the Court finds that the superiority requirement of Rule 23(b)(3) is not met.
1. Rule 23(b)(3) is applicable to the § 17200 claim.
In its certification order, the Court certified the Class III claims, including the § 17200 claim, under the requirements of Rule 23(b)(3). Accordingly, the Court looks to Rule 23(b)(3) to determine whether it is viable to continue to treat the § 17200 claim as a class claim.
Plaintiffs’ argument that the § 17200 claim could be maintained under Rule 23(b)(2) misses the mark. Whether the claim could be, or could have been, certified under Rule 23(b)(2) is irrelevant because it was not certified under Rule 23(b)(2). Moreover, the Court below finds that California’s Unfair Business Practices Act allows Plaintiffs to receive the same relief in their individual capacities that they seek through the class action mechanism. The Court, therefore, sees nothing to be gained by allowing the § 17200 claim to proceed as a class action, either under Rule 23(b)(3) or 23(b)(2).
2. The superiority requirement.
In determining whether class treatment is superior, a court must “assess the advantages of alternative procedures for handling the total controversy.” Kamm v. California City Development Co.,
Plaintiffs argue that a class action is superior to the “representative action” because federal law precludes a § 17200 “representative action.” Plaintiffs are wrong. A plaintiff can pursue a § 17200 “representative action” in federal court. See Andrews v. Trans Union Corp., Inc.,
Because thе § 17200 claim does not meet the requirements of Rule 23(b)(3), the Court decertifies all of the Class III claims.
G. Plaintiffs’ Motion to Intervene.
Plaintiffs seek to add new class representatives who they believe will more properly represent the various classes. However, as described above, the addition of new class representatives does not preclude decertification of the classes. Accordingly, the Court could deny Plaintiffs’ motion as moot.
The Court, however, also notes that neither the requirements of Fed.R.Civ.P. 24 or CERCLA are met. Rule 24(a) provides:
Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impеde the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
Fed.R.Civ.P. 24(a). Plaintiffs assert that this Court must allow them to intervene under Rule 24(a)(1) because CERCLA gives them an unconditional right to intervene. The Court disagrees. CERCLA provides:
In any action commenced under [CERCLA] ..., any person may intervene as a matter of right when such person claims an interest relating to the subject of the action and is so situated that the disposition of the action may, as a practical matter, impair or impede the person’s ability to protect that interest, unless the President or the State shows that the person’s interest is adequately represented by existing parties.
42 U.S.C. § 9613®. Thus, both CERCLA and Rule 24 require a Court to allow a party to intervene only if disposition of the case would impair or impede that party’s interests.
The proposed class representatives, however, fail to show that the Court’s decеrtification would impair or impede their interests for two reasons. First, they fail to present any evidence showing that they satisfy the typicality and adequacy requirements of Rule 23(a). Plaintiffs merely present the declaration of one of their attorneys. That attorney
Second, and more important, Plaintiffs fail to explain how decertification would adversely affect the intervenors’ interest. Plaintiffs argue that the Court’s summary judgment order adversely impacts the intervenors’ interests. That conclusion holds true only if the Court allowed the class action to continue. Under those circumstances, the present representatives would not be adequate rеpresentatives for the interests of the intervenors. However, the Court’s decertification of the class also removes the threat of an adverse impact on the intervenor’s individual interests. Accordingly, the Court finds that the intervenors are not entitled to intervene as of right.
Plaintiffs also seek to add the new representatives under Rule 24(b), which provides for intervention in the Court’s discretion. Plaintiffs’ purpose in seeking intervention is to “address the issue of adequacy” and thereby salvage the class certification. (Pis.’ Mot. at 4-5.) The Court, however, has found that intervention would not prevent decertification. Accordingly, the Court finds that permissive intervention under Rule 23(b) is inappropriate.
III. Conclusion
Because the requirements of Rule 23 are no longer satisfied, the Court ORDERS Class I, Class II, and Class III decertified.
Furthermore, the Court DENIES Plaintiffs’ motion to intervene new class representatives.
SO ORDERED.
Notes
. This is the same injunctive relief sought for the Class II claims. The Court notes that on September 16, 1998, Plaintiffs stipulatеd to strike a request for disgorgement of profits under the § 17200 claim.
. The discovery rule is an exception to the traditional rule of accrual for purposes of the statute of limitations. Norgart v. Upjohn Co.,
Under tire traditional rule, a claim accrues upon the occurrence of the last element necessary to complete the claim "even if the plaintiff is unaware of [the] cause of action.” Mangini v. Aerojet-General Corp.,
. The Court held a hearing on the motion on July 10, 2000. At the hearing, the Court reiterated that the discovery rule did not apply to the § 17200 claim. See O'Connor SJM,
After the hearing, Plaintiffs pointed out that Defendants’ summary judgment motion was not directed at the Class II claims for continuing trespass, continuing private nuisance, continuing public nuisance, and continuing public nuisance per se. As with the § 17200 claim, the discovery rule does not apply to these claims. Therefore, the individualized statute of limitations questions also do not directly affect these Class II claims.
At the hearing, the Court expressed its intent to decertify those class claims that were directly affected by the limitations defense. However, before issuing an order partially decertifying the class, the Court believed that it was appropriate to determine the viability of continuing class treatment on the continuing trespass and nuisance claims and the § 17200 claim. Accordingly, the Court granted the parties leave to file additional briefing specifically addressing these claims.
. Indeed, Plaintiffs arguеd during the summary judgment proceedings that the Court should have considered additional individualized characteristics.
. See § D.l. infra which deals with the require
. The rigor and difficulty of the Court's individualized analysis in its summary judgment order and its review of Gutierrez v. Cassiar Mining Corp.,
. See O’Connor II,
. See O’Connor SJM,
. Plaintiffs also rely on Cook. Cook, however, merely stated that the "commonality of impact of the alleged releases outweighs these variances,” which included the limitations defense. Cook,
. Indeed, even as to those claims where the summary judgment motion was denied, the Court did not find that those Plaintiffs defeated Defendants' limitations defense. Defendants’ motion was denied because Plaintiffs had shown a genuine issue of fact for resolution by a trier-of-fact. In the end, it is at least conceivable that a trier-of-fact may determine that those claims that survived summary judgment are also precluded by the limitations bar.
. These are claims ten through thirtеen, fifteen, and seventeen. These are claims based on the Price Anderson Act, negligence and negligence per se theories, a strict liability theory, permanent trespass, and permanent nuisance.
. In contrast, although the representatives’ unfair business practices claim is substantially limited, no class member could hold Defendants liable for conduct outside the limitations period.
. These claims are for continuing trespass (Claim 14), continuing private nuisance (Claim 17), continuing public nuisance (Claim 18), and continuing public nuisance per se (Claim 19).
. The Court makes the unverified assumption that the claim preclusive effect of any judgment in this case would be determined by federal law. However, the same inadequacy of representation problems would be presented if California law determined the preclusive effect of the judgment. See generally Migliori v. Boeing North American,
. The Court notes that Defendants assert that the named representatives have no evidence of contamination on their property. It has not escaped the Court’s notice that Plaintiffs have not attempted to contradict Defendants on this point. Although the issue is merits-based, the Court finds Plaintiffs’ silence on the matter perplexing. Although the Court would not attempt to balance disputed facts, a class representative who cannot present a minimal level of facts to support his or her claims three years after the filing of a complaint cannot be said to be an adequate representative.
Nevertheless, the Court does not rely on this ground as a basis for decertification because there are other sufficient reasons for decertifying the classes. However, Plaintiff’s argument that the Court should continue to treat the continuing claims as class claims is not assisted by their failure to address, in any fashion, Defendants' assertions.
. The Court addresses the Rule 23(b)(3) requirements because Class II was certifiеd under Rule 23(b)(3).
. By permanent claims, the Court refers to the permanent trespass, permanent private nuisance, strict liability, negligence, negligence per se, and Price Anderson Act claims.
. Before adopting any management plan, the input of the affected plaintiffs would have to be considered. Indeed, Defendants’ plan may not sufficiently address the concerns of the Plaintiffs in this case, let alone the concerns of any other plaintiff who may file a lawsuit.
. As with the permanent claims, the intervention of new class representatives would not affect the Court’s analysis of the viability of treating the continuing claims as class claims.
. Moreover, even if the Court were inclined to permit Plaintiffs to proceed under Rule 23(b)(2), Plaintiffs would need to show that the requirements of Rule 23(a) continue to be satisfied in light of the Court’s treatment of the continuing claims.
. As with all the other previously certified class claims, different named representatives would not preclude decertification of the § 17200 claim.