Shahrokh Doctor Safaie appeals from the trial court’s order denying his motion to recertify a class of individuals who purchased whirlpool bathtubs from defendants Jacuzzi Whirlpool Bath, Inc., and Jacuzzi, Inc. (collectively Jacuzzi). Although the order denying recertification is not appealable, we shall exercise our discretion to treat the appeal as a writ petition. In so doing, we determine the court did not err in denying Safaie’s motion. The trial court’s prior June 2007 ruling decertifying the class, affirmed on appeal in November 2008, barred Safaie from a second opportunity to seek class certification.
FACTUAL AND PROCEDURAL SUMMARY
In September 2004, Safaie filed a class action complaint against Jacuzzi alleging Jacuzzi made representations in its brochures, marketing materials, and advertisements that certain models of its whirlpool bathtubs had two- or three-horsepower motors, when in fact the tubs had less horsepower. Safaie alleged the misrepresentations constituted fraud and a breach of warranty and violated several consumer protection statutes, including the unfair competition law and the false advertising law.
Two months later, in November 2004, the voters adopted Proposition 64, which altered the standing rules applicable to UCL claims. (See Californians for Disability Rights v. Mervyn’s, LLC (2006)
Eight months later, in July 2005, Safaie moved for class certification. Jacuzzi opposed the motion, contending, inter alia, that the issue of whether a consumer relied on and suffered loss from the horsepower rating was too
During these class certification proceedings, the court and parties extensively discussed the passage of Proposition 64, including the existence of unsettled issues regarding the proper interpretation of the amended UCL. In July 2006, the California Supreme Court held Proposition 64 should be applied to pending cases. (Mervyn’s, supra,
Three months later, in September 2006, Jacuzzi moved to decertify the class, arguing class certification was not appropriate because the issues of reliance, causation, and damages were too individualized. To refute this contention, Safaie argued that reliance could be shown based on an inference of common reliance by class members. Safaie submitted numerous supporting evidentiary items, including documents depicting the manner in which Jacuzzi presented the horsepower statement to the public.
While Jacuzzi’s decertification motion was pending, in November 2006, the California Supreme Court granted review of two decisions, each of which presented the issue whether the UCL, as amended by Proposition 64, requires all class members to have suffered injury in fact and to have actually relied on the defendant’s misrepresentation. (See In re Tobacco II Cases (2009)
In June 2007, the trial court granted Jacuzzi’s decertification motion based on its conclusion that individual issues of fact predominated over common issues. In its written order, the trial court explained its reasoning: “The class definition does not take into account the reliance-causation and damages elements that are a required part of every claim by each and every class member. In fact, the class definition demonstrates variations in reliance-causation and damages among the class members. In this regard, the class definition includes many of those who bought defendant’s whirlpool bath for reasons other than the advertisement horsepower number, and not as a result of any allegedly overstated horsepower number. Moreover, the class includes many of those who did not incur any loss, fee, or other injury in fact as a result of an allegedly overstated horsepower number. [|] . . . [][] Essentially,
In August 2007, Safaie appealed from this order decertifying the class. In November 2008, this court affirmed the order. (Safaie I, supra, D051511.) We concluded the record supported the trial court’s finding that class certification on each of the claims (fraud, breach of warranty, and UCL) was not appropriate because individual issues predominated on the elements of reliance, causation, and injury. With respect to the UCL causes of action, we recognized the split in authority on the issue whether reliance is a required element of a UCL claim for absent class members after Proposition 64, and that the Tobacco II decision was pending before the California Supreme Court pertaining to this and other issues. (Safaie I, supra, D051511.) But we found our conclusion was justified under both pre- and post-Proposition 64 standards, emphasizing there was no evidentiary showing the horsepower rating was material to a majority of the class. (Safaie I, supra, D051511.) We also rejected Safaie’s argument that the court had no authority to change its prior interim ruling granting certification. (Ibid.)
Although the Tobacco II decision had been fully briefed and was pending in the California Supreme Court when we filed the decision (and the high court had granted and held three additional petitions for review raising the same issues), Safaie did not file a petition for review in his case. Thus, on January 12, 2009, we issued the remittitur.
Four months later, in May 2009, the California Supreme Court filed the Tobacco II decision, in which the court held that under Proposition 64 a named class representative alleging fraudulent misrepresentation under the UCL must establish reliance, causation, and injury, but this showing is not required for absent class members. (See Tobacco II, supra, 46 Cal.4th at pp. 312-329.) Interpreting the UCL as amended by Proposition 64, the high court reaffirmed that a class plaintiff must establish the statutory requirements for a class action, but stated that “relief under the UCL is available [for the absent class members] without individualized proof of deception, reliance and injury.” (
One month later, the trial court held a status conference in Safaie’s case. Because the class allegations had been dismissed in the earlier decertification order, and this order was affirmed on appeal, the sole matter before the trial court was Safaie’s individual action against Jacuzzi. However, in his status
Thereafter, in July 2009, Safaie formally moved for class certification on his UCL claims, arguing that, under Tobacco II, a class action was appropriate based on the evidence showing Jacuzzi’s common course of wrongful conduct in connection with the marketing and sale of its whirlpool baths. Although Safaie relied on the same factual record that was presented in his prior motion, he argued the Safaie I decision did not bar his motion because of the intervening change of law exception to the law of the case doctrine. In opposing the motion, Jacuzzi contended the court had no jurisdiction to reopen the class certification issue after the decertification order was affirmed on appeal. Jacuzzi also argued the law of the case doctrine barred the motion and the proposed class was not viable even assuming the court could reach the issues on their merits.
After a hearing, the trial court denied the motion. Citing Stephen v. Enterprise Rent-A-Car (1991)
DISCUSSION
I. Appealability
Generally, only final judgments may be appealed. (See Griset v. Fair Political Practices Com. (2001)
An order denying class certification or decertifying a class is appealable because it falls into both of these categories. (See Daar v. Yellow Cab Co., supra,
Safaie recognizes the court’s order denying his motion to recertify the class was interlocutory in the sense that it did not end his individual action. He nonetheless contends the order falls under the “death knell” exception to the final judgment rule. We disagree.
Unlike a denial of a class certification motion, the order denying recertification did not “end” the class case or dispose of the class allegations. Instead, when Safaie moved to recertify the class in June 2009, the class allegations had already been removed from the case (based on the trial court’s decertification order and this court’s affirmance of the order), and Safaie was the sole plaintiff in an individual action. Thus, the effect of the
Safaie alternatively requests that if we determine the order is not appeal-able, this court should consider his appellate contentions by construing the appeal as a petition for extraordinary writ. We conclude the case is appropriate for this treatment, and thus deny Jacuzzi’s motion to dismiss. (See Olson v. Cory (1983)
II. Court Properly Denied Motion to Recertify Class Action
Safaie contends the court erred in denying his motion to recertify the class. We determine the court properly denied Safaie’s motion based on the “state law policy” rule that a party is not entitled to bring a renewed motion for class certification after a court has issued a final order denying certification. (Stephen, supra,
A. Governing Law Does Not Permit Successive Motions for Class Certification
In Stephen, the court held a party has no right to bring a second motion to certify a class after the court has denied the first motion and the time for
The plaintiff appealed, and the reviewing court upheld the order.
The Stephen court additionally held that Code of Civil Procedure section 1008, allowing reconsideration of an order, cannot be invoked to circumvent this bar. (Stephen, supra, 235 Cal.App.3d at pp. 816-818.) “Otherwise, the disposition of the action would only be as to the particular state of facts presented when the prior motion was denied. New appealable orders could result each time new facts were offered. This would pose an intolerable expansion of the right to appeal . . . .” (Id. at p. 817.)
Stephen was decided more than 20 years ago, and, as recognized by numerous commentators, its holding is now embedded in our state’s jurisprudence and remains the governing rule in California. (See Cohelan on Cal. Class Actions (2010-2011 ed.) § 7:15, pp. 208-209; Eisenberg et al., Cal.
We agree with Stephen’s holding and find its rationale persuasive. To ensure fairness to the class action plaintiff, trial courts are required to liberally grant continuances and ensure a plaintiff has the opportunity to make a complete record before the court rules on class certification. (See Stephen, supra, 235 Cal.App.3d at pp. 814—815.) Once the record is complete, if the trial court issues a final order denying a class certification motion in its entirety, the plaintiff has the right to seek immediate appellate review and to obtain a written ruling from a Court of Appeal on the disputed issues, and then, if dissatisfied, to petition for review in the California Supreme Court. Thus, unlike the situation with most interlocutory orders, the plaintiff is provided the right to an immediate appeal even though the case is still pending. However, this special status has a necessary ramification: once the appellate period has passed or once the appellate court has affirmed the order and a remittitur has issued, the order is final and the plaintiff is bound by the final decertification decision. (See Guenter v. Lomas & Nettleton Co. (1983)
B. Safaie’s Appellate Contentions Seeking to Avoid the Finality Bar
Safaie raises several arguments in an attempt to persuade us to adopt a different rule that permits successive class certification motions after a final order denying certification. We find these contentions unpersuasive. Additionally, even if we were to agree that a court retains the discretionary authority to consider a second class certification motion after a final order denying certification, the circumstances in this case do not support the exercise of this discretion.
First, Safaie argues that California law does permit renewals of class certification motions, citing Occidental Land, Inc. v. Superior Court (1976)
We also find unhelpful Safaie’s reliance on facts in Tobacco II showing the trial court had initially denied a motion for certification on one claim alleged in the complaint, but then granted the motion to certify claims in an amended complaint. (Tobacco II, supra, 46 Cal.4th at pp. 307, 309, fn. 4.) First, because the issue of recertification was never raised in the Tobacco II case, it is not authority for the asserted proposition. (Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008)
Safaie additionally argues that Stephen is inapplicable because “[u]n-like the plaintiff in Stephen, here Safaie did timely appeal” the earlier decertification order. However, this is a distinction without a difference. The logic of Stephen’s holding applies regardless whether a plaintiff appeals the initial ruling. (Stephen, supra, 235 Cal.App.3d at pp. 813-816.) Stephen’s crucial point is that because a motion decertifying a class is considered a “death knell” order it must be timely challenged, and, if the order is not reversed on appeal, the order becomes final and effectively removes the class allegations from the complaint. (Ibid.) Thus, a final order denying certification bars a later motion seeking class certification if the order is not challenged or if the order is challenged and upheld on appeal.
Moreover, Safaie’s reliance on Le Francois v. Goel (2005)
Safaie additionally contends the death knell doctrine is “merely a procedural mechanism” for providing the immediate right to appellate review, and did not remove the court’s jurisdiction to rule on the issues or its broad discretionary authority to certify a class.
We agree the trial court retained jurisdiction, in the fundamental sense, over the case and thus had the authority to issue legal and equitable rulings on all issues presented by the parties. In this respect, this case differs from Griset, supra,
In reaching this conclusion, we recognize trial courts have broad discretion to determine the propriety of class actions, including being procedurally innovative in certifying an appropriate class and in formulating procedures to ensure fairness and avoid manifest injustice in class action litigation. (See Sav-On Drug Stores, Inc. v. Superior Court (2004)
In decertifying the class in June 2007, the trial court found Safaie did not meet his burden to show the requisite elements of a class action for the asserted claims, including commonality among class members on the reliance issue. Safaie challenged this holding on appeal, and argued that standing requirements for absent class members had not changed from pre-Proposition 64 standards. At the time, the appellate courts had reached different conclusions on the issue. In our prior decision, we upheld the court’s exercise of discretion, and additionally found that even under pre-Proposition 64 standards, the trial court did not err in decertifying the class. (Safaie I, supra, D051511.) When we filed the Safaie I decision, the issue pertaining to standing requirements applicable to absent class members was before the California Supreme Court in Tobacco II; the matter had been fully briefed; and the high court had granted and held petitions for review in three other cases raising similar issues. (See Tobacco II, supra,
On this record, there is nothing fundamentally unfair or inequitable about a rule precluding Safaie from seeking reconsideration of the trial court’s decertification ruling at this late date. Because Safaie had the opportunity to assert the precise legal issue he is raising in his renewal motion by filing a petition in the California Supreme Court, there is no basis for creating an exception to the settled state law rule that a final order decertifying a class is binding and cannot be later challenged in the trial court by a motion for renewal or reconsideration.
Appeal is treated as a petition for writ of mandate. The petition is denied. Respondents shall recover their costs on appeal.
McDonald, J., and O’Rourke, J., concurred.
A petition for a rehearing was denied February 22, 2011, and appellant’s petition for review by the Supreme Court was denied April 27, 2011, S191219.
Notes
The underlying facts are detailed in our prior unpublished decision, Safaie v. Jacuzzi Whirlpool Bath, Inc. (Nov. 12, 2008, D051511) (Safaie I). We discuss only those facts necessary to resolving the issues before us.
For purposes of this opinion, we refer collectively to these unfair competition and false advertising laws as the UCL.
The court apparently assumed, without discussion, the appeal was from an appealable order. We have reached a different conclusion. (See Discussion, pt. I., ante.)
The court noted the rule is different in federal courts because under the Federal Rules of Civil Procedure, a denial of a class certification motion is not directly appealable and must await a final judgment in the action. (Stephen, supra, 235 Cal.App.3d at pp. 811-812; see Fed. Rules Civ.Proc., rule 23, 28 U.S.C.)
This distinction makes sense because later discovery may reveal facts showing the class procedure is inappropriate. At this point, the court has the discretion to alter its earlier rulings because the earlier order was not final. However, where a court has denied class certification in a final order, the litigation moves forward without additional class discovery, and the members of the former class presumably would have been aware of the need to seek other avenues of recovery.