Filed 8/21/15 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

ED RUTLEDGE et al.,

Plaintiffs and Appellants,

 v.

HEWLETT-PACKARD COMPANY,

 Defendant and Respondent; 

BIZCOM ELECTRONICS, INC.,

Objector and Respondent.

 H036790

 (Santa Clara County

 Super. Ct. No. CV817837

 ORDER MODIFYING OPINION 

 AND DENYING REHEARING

 NO CHANGE IN JUDGMENT

 

THE COURT:

It is ordered that the opinion filed herein on July 22, 2015, be modified as follows:

1. On the signature line 2, the name “PREMO, J.” is replaced with “ELIA, J.” and 

on the signature line 3, the name “ELIA, J.” is replaced with “WALSH, J.*” so the 

signature page reflects the correct panel as follows:

 
2

______________________________________

RUSHING, P.J.

WE CONCUR:

____________________________________

ELIA, J.

___________________________________

WALSH, J.*

*

 Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.

There is no change in judgment.

Respondent’s petition for rehearing is denied.

 
3

______________________________________

RUSHING, P.J.

WE CONCUR:

____________________________________

ELIA, J.

___________________________________

WALSH, J.*

 

*

 Judge of the Santa Clara County Superior Court assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.
Filed 7/22/15 (unmodified version)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

ED RUTLEDGE et al.,

Plaintiffs and Appellants,

 v.

HEWLETT-PACKARD COMPANY,

 Defendant and Respondent; 

BIZCOM ELECTRONICS, INC.,

Objector and Respondent.

 H036790

 (Santa Clara County

 Super. Ct. No. CV817837

This case is a class action brought by purchasers of notebook computers that were 

manufactured by Hewlett-Packard, Inc. (HP). Appellants are I Braun Degenshein 

(Degenshein), and Susanna Giuliano-Ghahramani (Giuliano-Ghahramani), both of whom 

are representative plaintiffs of a class of California residents who purchased certain HP 

notebook computers. 

The basis of appellants’ consumer action against HP is that certain notebook 

computers manufactured by HP contained inverters that HP knew would likely fail and 

cause display screens to dim and darken at some point before the end of the notebook’s 

useful life. 

Appellants alleged claims against HP for violation of the Unfair Competition Law 

(UCL) (Bus. & Prof. Code, § 17200 et seq.), violation of the Consumer Legal Remedies 
2

Act (CLRA) (Civ. Code, § 1750 et seq.), unjust enrichment and breach of express 

warranty.

After years of litigation, the trial court ultimately made a “no merits” 

determination as to the CLRA claim, and granted HP’s motion for summary judgment as 

to appellants’ remaining claims. 

On appeal, appellants challenge seven trial court orders: two summary 

adjudication orders related to two different class representatives and the class itself, two 

class certification orders related to denial of a nationwide class and the denial of 

certification of the CLRA claim, and three discovery sanctions orders.

1

Summary Adjudication 

“ ‘The purpose of the law of summary judgment [or summary adjudication] is to 

provide courts with a mechanism to cut through the parties’ pleadings in order to 

determine whether, despite their allegations, trial is in fact necessary to resolve their 

dispute.’ [Citation.] As such, the summary judgment statute (Code Civ. Proc., § 437c), 

‘provides a particularly suitable means to test the sufficiency of the plaintiff’s prima facie 

case and/or of the defendant’s [defense].’ [Citation.]” (Law Offices of Dixon R. Howell 

v. Valley (2005) 129 Cal.App.4th 1076, 1091 (Valley).)

The moving party “bears the burden of persuasion that there is no triable issue of 

material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic 

Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted (Aguilar).) 

A cause of action has no merit under Code of Civil Procedure section 437c, 

subdivision (o), “if either of the following exists: [¶] (1) One or more of the elements of 

the cause of action cannot be separately established, even if that element is separately 

pleaded[, or] [¶] (2) [a] defendant establishes an affirmative defense to that cause of 

 

1

Please see the statement of facts from our previous opinion in Hewlett Packard 

Co. v. Superior Court (2008) 167 Cal.App.4th 87.
3

action.” (Aguilar, supra, 25 Cal.4th at p. 853.) The party moving for summary judgment 

“bears an initial burden of production to make a prima facie showing of the nonexistence 

of any triable issue of material fact; if he carries his burden of production, he causes a 

shift, and the opposing party is then subjected to a burden of production of his own to 

make a prima facie showing of the existence of a triable issue of material fact.” (Code 

Civ. Proc., § 437c; Aguilar, supra, 25 Cal.4th at p. 850.) 

Thus, as here, when a defendant moves for summary judgment, he must make a 

prima facie showing, i.e., “he must present evidence that would require a reasonable trier 

of fact not to find any underlying material fact more likely than not—otherwise, he would 

not be entitled to judgment as a matter of law, but would have to present his evidence to 

a trier of fact.” (Aguilar, supra, 25 Cal.4th at p. 851, fn. omitted.) 

“The moving party must satisfy his or her initial burden before the opposing party 

must controvert anything. (§ 437c, subd. (p)(1) & (2).) Accordingly, a moving 

defendant who claims that the plaintiff cannot prove all the elements of his case must 

present evidence in support of this claim. The defendant cannot simply challenge the 

plaintiff to prove his case by opposition. (Aguilar, supra, 25 Cal.4th at pp. 854-855.)” 

(Y.K.A. Industries, Inc. v. Redevelopment Agency of San Jose (2009) 174 Cal.App.4th 

339, 353 (Y.K.A.).) In other words, “a plaintiff resisting a motion for summary judgment 

bears no burden to establish any element of his or her case unless and until the defendant 

presents evidence either affirmatively negating that element (proving its absence in fact), 

or affirmatively showing that the plaintiff does not possess and cannot acquire evidence 

to prove its existence.” (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 107.) 

The court’s “primary function [in evaluating a summary judgment motion] is to 

identify issues rather than to determine [them]. [Citation.] . . . If the evidence is in 

conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co.

(1999) 75 Cal.App.4th 832, 839.) Thus, should the court determine that triable issues of 
4

fact exists, the summary judgment motion must be denied. (Chavez v. Carpenter (2001) 

91 Cal.App.4th 1433, 1448.) “There is to be no weighing of the evidence.” (Kids’ 

Universe v. In2Labs (2002) 95 Cal.App.4th 870, 880.)

Our review of the granting or denial of summary judgment is de novo. (Valley, 

supra, 129 Cal.App.4th at p. 1092.) In conducting such de novo review, we “consider[] 

all the evidence set forth in the moving and opposition papers except that to which 

objections have been made and sustained. [Citation.]” (Guz v. Bechtel National, Inc.

(2000) 24 Cal.4th 317, 334.) “This review consists of ‘an independent assessment of the 

correctness of the trial court’s ruling, [in which we] apply[] the same legal standard as the 

trial court in determining whether there are any genuine issues of material fact or whether 

the moving party is entitled to judgment as a matter of law.’ [Citation.] We need not 

defer to the trial court and are not bound by the reasons in its summary judgment ruling; 

we review the ruling of the trial court, not its rationale. [Citation.]” (Valley, supra, 129 

Cal.App.4th at p. 1092.) 

Factual Background

Here, appellants challenge two orders of the trial court granting summary 

adjudication in favor of HP. The first is of Degenshein’s claims in the first amended 

complaint.

2

 The second is of Giuliano-Ghahramani’s and the class claims in the second 

amended complaint. 

The first amended complaint was filed on October 14, 2003, and alleged four 

causes of action against HP: Violation of the CLRA, violation of the UCL, unjust 

 

2

 At the outset it should be noted that appellants do not provide the operative first 

amended complaint that was the basis of the first motion for summary judgment. This 

defect would have resulted in the judgment being affirmed in favor of HP based on an 

insufficient record. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 [failure to 

provide an adequate record on an issue requires that the issue be resolved against the 

appellant].) However, HP cured this defect by providing the first amended complaint in 

its appendix. Therefore, we consider the merits of appellants’ claims.
5

enrichment3and breach of express warranty. The first amended complaint included 

Degenshein as the representative plaintiff. Degenshein purchased a Zinfandel 4.0

notebook computer in April 2002 that came with a standard one-year warranty from HP. 

Degenshein experienced problems with his display screen blacking out shortly before the 

expiration of his one-year warranty, but did not notify HP of the problem with his 

notebook until two months after the warranty had expired. 

The second amended complaint was filed on February 24, 2010, asserting the 

same causes of action as the first amended complaint. The second amended complaint

adds Giuliano-Ghahramani as representative plaintiff. Giuliano-Ghahramani purchased a 

Zinfandel 3.5 notebook computer in January 20502, and experienced problems with the 

display screen in November 2002. Giuliano-Ghahramani submitted the notebook to HP 

during the warranty and HP replaced the inverter. 

In June 2009, the trial court granted HP’s motion for summary adjudication and

made a no merits determination as to Degenshein’s claims. HP moved for entry of 

judgment against Degenshein. The court denied the motion, and instead, allowed

Degenshein to amend the complaint to add Giuliano-Ghahramani as plaintiff. On October

7, 2009, the court approved Giuliano-Ghahramani as class representative. GiulianoGhahramani filed the second amended complaint in February 2010. 

In June 2010, HP filed a motion for summary judgment as to Giuliano-Ghahramani 

and the class. The trial court granted the motion, and on April 11, 2011, the trial court 

entered judgment against Degenshein, Giuliano-Ghahramani, and the class as certified by 

the court. 

 

3

 Appellants made no argument in the trial court and no argument on appeal 

regarding their unjust enrichment claim. We deem this issue waived. (Interinsurance 

Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448 [the absence of argument allows 

this court to treat the point as waived].) 
6

CLRA4and UCL Claims

“The CLRA proscribes particular ‘unfair methods of competition and unfair or 

deceptive acts or practices’ in transactions for the sale or lease of goods or services to 

consumers. (Civ.Code, § 1770, subd. (a))” (Collins v. eMachines, Inc. (2011) 202 

Cal.App.4th 249, 255 (Collins).) 

The CLRA “ ‘enacted in 1970, “established a nonexclusive statutory remedy for 

‘unfair methods of competition and unfair or deceptive acts or practices undertaken by 

any person in a transaction intended to result or which results in the sale or lease of goods 

or services to any consumer. . . .’ [Citation.]” ’ [Citation.] ‘The self-declared purposes 

of the act are “to protect consumers against unfair and deceptive business practices and to 

provide efficient and economical procedures to secure such protection.” (Civ. Code, 

§ 1760.)’ ” (Wang v. Massey Chevrolet (2002) 97 Cal.App.4th 856, 869.)) The CLRA 

“shall be liberally construed.” (Civ. Code, § 1760.)

Appellants allege that HP’s concealment and failure to disclose the defect in the 

inverters of the notebook computers violated the CLRA’s provision against 

(1) representing that goods have characteristics which they do not have (Civ. Code, 

§ 1770, subd. (a)(5)); (2) representing that goods are of a particular standard or quality if 

they are of another (id., subd. (a)(7)); (3) advertising goods with the intent not to sell 

them as advertised (id., subd. (a)(9)); (4) representing that a transaction confers or 

involves rights, remedies, or obligations which it does not have or involve (id., 

subd. (a)(14); and representing that the subject of the transaction has been supplied in 

accordance with a previous representation when it has not (id., subd. (a)(16).)

With regard to the UCL, appellants allege that HP violated the statute by 

“concealing and/or omitting the true facts about the defect to [appellants] and Class 

 

4 CLRA claims cannot be disposed of by motion for summary judgment. (Civil 

Code, § 1781, subd. (c)(3).) Here, appellants filed a combined motion for summary 

judgment and for a “no merits” determination on the CLRA claim. 
7

members.” Additionally, appellants allege that HP’s violation of the CLRA by “omitting 

the true nature and characteristics of its notebook computers and suppressing the known 

defects,” violated the UCL.

The purpose of the UCL is to protect both consumers and competitors by 

promoting fair competition in commercial markets for goods and services. It defines 

“unfair competition” to mean and include “any unlawful, unfair or fraudulent business act 

or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited 

by [the false advertising law]. (commencing with Section 17500 et seq.).” (Bus. & Prof. 

Code, § 17200; see also Rushing, et al., Matthew Bender Practice Guide: California 

Unfair Competition and Business Torts (2014) Unfair Competition, §§ 2.03, 2.04 & 

2.05.) 

“The scope of the UCL is quite broad. [Citations.] Because the statute ([Bus. & 

Prof. Code, § 17200, defining unfair competition]) is framed in the disjunctive, a business 

practice need only meet one of the three criteria [unlawful, unfair or fraudulent] to be 

considered unfair competition. [Citation.] [¶] A cause of action for unfair competition 

under the UCL may be established ‘ “independent of any contractual relationship 

between the parties.” ’ ” ( McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 

1457, 1470-1471.)

Appellants argue the fraudulent concealment claims under the CLRA and the UCL 

are supported by the fact that HP “conceals the material fact that HP notebook computers 

have known defects that cause display problems.” Further, appellants assert that HP was 

obligated to disclose the inverter defect, because it was contrary to HP’s advertising 

about the notebooks and was material to the proper functioning of the notebook 

computers.

For a claim of fraudulent omission to be actionable under the CLRA, “the 

omission must be contrary to a representation actually made by the defendant, or an 
8

omission of a fact the defendant was obliged to disclose.” (Daugherty v. American 

Honda Motor Co. (2006), 144 Cal.App.4th 824, 835 (Daugherty).) Moreover, “[i]n order 

to be deceived, members of the public must have had an expectation or an assumption 

about the materials used” in the product. (Bardin v. DaimlerChrysler Corp. (2006), 136 

Cal.App.4th 1255, 1275 (Bardin).) Appellants argue that because consumers had an 

expectation that the display screen of their notebooks would function properly for the 

duration of the notebook’s “useful life,” HP had a duty to disclose the material fact that 

the inverters were defective in manufacturing and installation. In particular, appellants 

assert that consumers expect a notebook computer to be portable, and a properly working 

display screen is essential to the notebook’s portability.5 

HP argues manufacturers do not have an independent duty to disclose a product 

defect absent an unreasonable risk of “physical injury or other safety concern.” 

(Daugherty, supra, 144 Cal.App.4th at p. 836; see, e.g., Bardin, supra, 136 Cal.App.4th 

1255.) HP further notes that here, the risk posed by the alleged defect in the inverters had 

nothing to do with a physical injury or a safety concern. Rather, the risk to the consumer 

was the cost to repair the notebook, and as such, it does not rise to a duty to disclose.

Both Daugherty and Bardin do address disclosure of defects related to safety 

concerns in the context of CLRA and UCL claims. However, neither Daugherty nor 

Bardin preclude a duty to disclose material information known to a manufacturer and 

concealed form a consumer. Specifically, in Daugherty, the court noted that while the 

 

5 We note that a case similar to this has proceeded through the federal courts and 

has been dismissed pursuant to Federal Rule of Civil Procedure, rule 12(b)(6) for failure 

to state a claim. (Long v. Hewlett Packard Co. 2007 U.S. Dist. LEXIS 79292; Long v. 

Hewlett-Packard Co. (9th Circ. Mar. 3, 2009) 316 Fed.Appx. 585 (Collectively Long).) 

This court is “ ‘not bound by a federal circuit court opinion. [Citation.]” (Governor

Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 468.) 

Moreover, the standard for a motion to dismiss under the Federal Rule of Civil 

Procedure, rule 12(b)(6) is inapplicable to a motion for summary judgment under Code of 

Civil Procedure section 437c. 
9

plaintiff’s complaint alleged that the engine defect presented an “ ‘unreasonable risk’ ” of 

“ ‘serious potential damages,’ ” and that the defendant “carried on with a willful and 

conscious disregard of the safety of Plaintiffs . . . ,” the complaint was “devoid of factual 

allegations showing any instance of physical injury or safety concerns posed by the 

defect.” (Daugherty, supra, 144 Cal.App.4th 824, 836.) The court in Daugherty

concluded that the complaint did not state facts sufficient to support its claim that the 

engine defect posed a safety concern to consumers. (Ibid.)

In Bardin, the plaintiffs alleged that a car manufacturer failed to disclose that 

tubular steel was used in the exhaust manifolds of certain cars instead of more durable 

and more expensive cast iron. (Bardin, supra, 136 Cal.App.4th at p. 1260.) The court 

concluded that in addition to failing to allege any safety concerns associated with the 

defective exhaust manifolds, the plaintiffs failed to allege any unfair conduct on the part 

of the auto manufacturer. (Ibid.) The Bardin court did not hold that a defect must be 

related to a safety concern to be material for purposes of fraudulent omission.

Citing Collins, supra, 202 Cal.App.4th 249, appellants assert that HP had a duty to 

disclose the defective nature of the inverters, because the defective inverters “obliterate[] 

the function of a computer as a computer.” In Collins, the defendant sold computers with 

defective microchips that were “ ‘missing [the] actual physical hardware logic that 

industry standards require’ ” and the defendant had knowledge of the defective nature of 

the microchips at the time the computers were sold. (Id. at p. 257). The defective 

microchips were material, because they corrupted floppy disks, a necessary component in 

the functioning of computers at the time. The court held that the defendant failed to 

disclose and actively concealed the fact of this faulty microchip from consumers in 

violation of the CLRA and the UCL. (Id. a p. 258.)

The court in Collins distinguished both Daugherty and Bardin in finding that the 

manufacturer had a duty to disclose a material defect in its product. Specifically, the 
10

Collins court noted that the defect in the hardware logic of the computer was the result of 

improper manufacturing, causing the chip to corrupt data on the user’s floppy disk. The 

defect in Collins was not the result of a breakage of the product over time because of use 

and wear tear like the engine oil leak in Daugherty. In addition, unlike the metal 

composition of the exhaust manifolds in Bardin, the hardware logic in the computers in 

Collins was material, because it was central and necessary to the function of the computer 

as a computer. (Collins, supra, 202 Cal.App.4th at p. 258.) 

Similarly here, appellants assert that the defect in the inverters occurred in its 

manufacturing and installation and was material, because it affected the performance of 

the display screens of notebook computers. Appellants argue that a functioning display 

screen is critical to a notebook computer’s function, because without it, the computer 

would not be portable and would require the connection of an outside monitor. 

HP asserts Collins is inapplicable because appellants do not allege that their 

notebooks malfunctioned out of the box; rather, the defect allegation in this case is that 

the inverters would malfunction at some time in the future. Indeed, the Collins court 

noted, “[t]his [is] not a situation where the microchip [is] complete and operational when 

sold,” but wears out or breaks over time. (Collins, supra, 202 Cal.App.4th. at p. 254) 

However, while appellants’ allege that the inverters were “substantially certain to fail” at 

some point in the future, appellants’ theory is that the inverters were defective in 

manufacturing and installation at the time the notebooks were sold. 

HP argues Degenshein and class members similar to him do not have a claim for 

fraudulent concealment under the UCL, because they received notebooks with inverters 

that functioned for the duration of the one-year warranty, and were not damaged by HP’s 

alleged failure to disclose the fact of the faulty inverter. However, a claim for fraudulent 

business practices “reflects the UCL’s focus on the defendant’s conduct, rather than the 

plaintiff’s damages, in service of the statute’s larger purpose of protecting the general 
11

public against unscrupulous business practices.” (In re Tobacco II Cases (2009) 46 

Cal.4th 298, 312.) The question under the UCL is related to HP’s conduct in failing to 

disclose the faulty inverter, not on whether the notebook’s computer functioned for oneyear. HP’s argument that the expiration of the warranty period precludes a claim for 

fraudulent concealment under the UCL is incorrect. 

Moreover, whether the information about the faulty inverter is material is a 

question for the trier of fact. (See, e.g., Engalla v. Pemanente Medical Group, Inc.

(1997) 15 Cal.4th 951, 976 [“A misrepresentation is judged to be ‘material’ if ‘a 

reasonable man would attach importance to its existence or nonexistence in determining 

his choice of action in the transaction in question’ [citations], and as such materiality is 

generally a question of fact unless the ‘fact misrepresented is so obviously unimportant 

that the jury could not reasonable find that a reasonable man would have been influenced 

by it.”].)

Appellants point to specific misrepresentations in HP’s press releases and 

advertising that created a duty to disclose the known defects in the notebook computers. 

Appellants’ claim of misrepresentation is based on statements made by HP about its 

products in certain press releases. Specifically, appellants point to press releases from 

January and March 2001. In these releases, HP represented that its “ ‘latest . . . notebook 

PCs reinforce HP’s commitment to providing choice customization and the latest 

technologies to meet the diverse needs of today’s customers,’ ” and that the notebooks 

fall within HP’s tradition of “ ‘reliable, manageable, stable, secure and expandable 

products.’ ” 

While it is true that “[s]ellers are permitted to ‘puff’ their products by stating 

opinions about the quality of the good so long as they do not cross the line and make 

factual representations about important characteristics like a product’s safety.” (Osborne 

v. Suburu of America, Inc. (1988) 198 Cal.App.3d 646, 660, fn. 8.) The question of 
12

whether a manufacturer’s representation about a product is specific, and was relied upon 

by a consumer should be decided by a trier of fact. Here, Giuliano-Ghahramani alleged 

that she purchased her notebook based on an HP advertisement she saw. In addition, 

Giuliano-Ghahramani produced the advertisement and testified that she purchased the 

notebook because of the display screen shown and described in the ad, noting that the HP 

notebook screen “was a larger screen at the time.” Appellants’ evidence is sufficient to 

create a triable issue of fact as to the nature of HP’s representations, and whether that 

triggered a duty to disclose the defect. 

Evidence of Defect and HP’s Knowledge

We note at the outset that as the moving party, HP has not met its burden to show 

that “one or more elements of a cause of action, even if not separately pleaded, cannot be 

established . . . .” (Code Civ. Proc. § 473c, subd. (p)(2).) “[A] moving defendant who 

claims that the plaintiff cannot prove all the elements of his case must present evidence to 

support his claim. The defendant cannot simply challenge the plaintiff to prove his case 

by opposition.” (Y.K.A., supra, 174 Cal.App.4th at p. 353, citing Aguilar, supra, 25 

Cal.4th at pp. 854-855.) Here, appellants alleged that HP omitted and concealed from 

them material information about the notebooks in violation of the CLRA and the UCL. 

HP has not presented evidence as the elements of this claim, including materiality or 

consumer expectations. 

In support of their claim of defect in manufacture and installation of the inverters, 

appellants submitted the declaration of Eric Langberg, an engineering expert who opined 

that all of the Zinfandel 3.5 computers, and 42,000 Zinfandel computers contained TDK 

inverters that had an insufficient fuse rating, and as result, the backlights would not 

receive adequate power to light the screens. Langberg also offered the opinion that an 

inverter “has an indefinite useful life,” such that a failure of an inverter at any time would 

be premature. Langberg opined that the mounting hole for the Ambit inverters is located 
13

too close to the integrated circuit, and the location of the integrated circuit leads to early 

failure of the inverter. In addition, Langberg offered the opinion that the amount of force 

used to mount the Ambit inverters caused cracks in the soldering of the integrated circuit. 

HP points to the fact that Langberg did not identify any actual inverter 

malfunction in any of the class members’ notebook computers, other than Degenshein’s. 

In addition, Langberg stated: “[f]rom a statistical reliability standpoint, I do not have an 

opinion on notebook computer useful life.” Langberg said that he could not put a 

percentage onto the phrase “substantially certain to prematurely fail.” Langberg said that 

he had no basis for rendering an opinion when an inverter failure would be premature 

versus not premature. Langberg also stated that he had no way to know how many 3.5 

and 4.0 notebooks had failed inverters because the repair data does not provide for 

“what’s actually happening in the field.” Langberg had no opinion as to when HP knew 

of any defects in the TDK or Ambit inverters in the notebook computers. 

Langberg’s opinion evidence creates a triable issue of fact as to whether the TDK 

inverters were defective and whether the Ambit inverters were installed incorrectly. 

Despite the fact that Langberg provided no evidence of what “substantially certain to 

fail” means, no opinion of what it would mean for an inverter to fail prematurely, and no 

explanation of what constitutes a computer’s “useful life,” he did provide evidence from 

which a reasonable trier of fact could conclude that the inverters were defective. 

As to HP’s knowledge of the defect, appellants present an e-mail from David Lee, 

an HP engineer, stating that at the “Zinfandel Platform Team” meeting on 

January 8, 2002, HP addressed the electrical and mechanical engineering problems of the 

TDK that inverters were causing backlight failures in Zinfandel 3.0 and 3.5 computers. 

The electrical engineering problem with the Zinfandel 3.5 computers was traced to TDK 

inverters with an “insufficient margin on fuse rating.” As a result of this discovery, on 

April 15, 2002, HP issued a service note to Compal, the Taiwanese Original Design 
14

Manufacturer (ODM) who manufactured the notebooks for HP. The TDK note provided 

that the TDK inverters had a “blown” fuse that resulted in no backlight to the display 

screen on the computer. The note required that the TDK inverters in Zinfandel 3.5

computers that were submitted for repair to Bizcom, Inc. (Bizcom), HP’s authorized 

repair center, be replaced with inverters manufactured by Ambit. 

With regard to the Ambit inverters, appellants present evidence of a second service 

note6that was issued in November 2003, and related to the Ambit inverters that Bizcom 

installed as replacements in Zinfandel computers. This second service note applied to all 

Zinfandel notebooks, regardless of version (i.e., 3.0, 3.5 or 4.0) service history or actual 

inverter failure. This service note stated that the torque setting of Bizcom’s automated 

screwdrivers used to install the Ambit inverters was too high, resulting in solder cracking 

on the inverters. The note instructed Bizcom to reduce the torque setting on the

screwdrivers for future repairs. 

Appellants also point to the call center data7, as well as the Bizcom repair data to 

show that HP notebooks contained defective inverters, and that HP was aware of the 

same. Langberg analyzed the data, and stated that during the period from January 2002 

and December 2003, the number of notebooks submitted for service per month for 

 

6 At HP’s motion for summary adjudication of Degenshein’s claims, HP objected 

to the admission of the Ambit service note as a “subsequent remedial measure” under 

Evidence Code section 1151. The court sustained the objection. This was error. The 

Ambit service note was offered to show defect in the installation of the inverters. It was 

not offered to show negligence on the part of HP, and therefore, Evidence Code 1151 

does not apply. 

It should also be noted that at HP’s subsequent motion for summary adjudication 

of Giuliano-Ghahramani’s and the class claims, HP did not object to the Ambit service 

note, and it was admitted as evidence.

7 Call center data refers to “anybody who calls HP, the 800 number, who has a 

question . . . the call service representative . . . enters an entry when that call 

happens . . . .” 
15

inverter replacement ranged from 0 percent to .8 percent. In most months during that 

same period, the percentage of notebooks submitted for inverter repair was less than .5

percent. However, the failure rate of .8 percent noted in February 2002, increased to 

1.0 percent in April 2002. 

HP argues that because a dim, dark or flickering display can be caused by many 

things, including liquid spills and customer misuse, there is no way to extrapolate proof 

of defective inverters from call center data complaining of display screen problems, or 

Bizcom repair data. However, Langberg’s analysis of the increase in inverter failure over 

time could lead a reasonable trier of fact to conclude that the inverters were defective, 

and that HP was aware of the defect. 

We find appellants’ evidence creates a triable issue of fact as to whether the TDK 

and Ambit inverters were defective and whether HP had knowledge of the defects. 

Langberg’s testimony creates a triable issue of fact as to whether the TDK inverters were 

defective because they had an insufficient fuse rating, and whether the Ambit inverters 

used to replace the TDK inverters were installed incorrectly. The call center data and 

service data demonstrating an increase in inverter failure over time, coupled with 

Langberg’s analysis of the data create a triable issue of fact as to whether HP knew about 

the defects and if so, when. In addition, the occurrence of the HP meeting on 

January 8, 2002 to address the electrical engineering problems with the TDK inverters,

and the continued shipment of Zinfandel 3.5 notebooks containing those inverters for the

three months following, creates a triable issue of fact as to whether HP knew about the 

defect in the TDK inverters and concealed this fact from the consumers who purchased 

notebooks containing the TDK inverters. Finally, the Ambit service note, coupled with 

the evidence of the procedure by which HP issues a service note creates a triable issue as 

to when HP knew about the defect in the Ambit inverter installation. 
16

HP is not entitled to judgment as a matter of law as to the UCL claims, and is not 

entitled to a no merits determination as to the CLRA claims in the First and Second 

Amended Complaints.

Breach of Express Warranty

The one-year warranty for the notebook computer states, in relevant part: “HP 

warrants to you, the end-user customer, that HP hardware, accessories, and supplies will 

be free from defects in materials and workmanship after the date of purchase, for the 

period specified in the Warranty Duration table below. HP Pavilion and Omnibook XE 

Series Notebooks typically come with a standard one-year warranty. Please see the 

Warranty Duration table for more details. If HP receives notice of such defects during the 

warranty period, HP will at its option, either repair or replace products which prove to be 

defective. Replacement products may be either new or equivalent in performance to new. 

[¶] . . . [¶] . . . HP does not warrant that the operation of HP products will be 

uninterrupted or error free. If HP is unable, within a reasonable time, to repair or replace 

any product to a condition as warranted, you will be entitled to a refund of the purchase 

price upon prompt return of the product.” 

For notebook computers presented to HP for repair during the one-year warranty 

stated above, HP also provided a 90-day repair warranty for materials and work at no 

charge to the purchaser. The repair warranty provided that if the product was returned to 

HP within 90 days of a repair, it would “correct any defects in materials or workmanship 

used in the repair.” In addition, customers were given the option of purchasing extended 

warranty and service packages at the time of the original purchase of the notebook. 

The primary difference between the first amended complaint and the second 

amended complaint is the breach of express warranty cause of action. The first amended 

complaint alleges that Degenshein did not submit his notebook for repair to HP until after 
17

his one-year warranty had expired. The second amended complaint alleges that GiulianoGhahramani submitted her notebook for repair before her one-year warranty had expired.

Degenshein

It is undisputed in this case that Degenshein did not notify HP until 14 months 

after he purchased his notebook; two months after the expiration of the one-year 

warranty. Appellant asserts that Degenshein’s late notice of his defective computer was 

not fatal to his breach of express warranty claim, because HP had “constructive notice” of 

the display screen problems based on other customer complaints about other notebook 

computers in HP’s product line. In addition, appellant asserts that the inverters were 

substantially certain to fail during the notebook’s “useful life,” and that HP knew this 

would occur at the time the notebooks were sold. 

The warranty at issue in this case is clear that it applies to the end-user, and 

provides that the product “will be free from defects in materials and workmanship after 

the date of purchase, for the period specified in the Warranty Duration table below.” The 

word “defects” in the warranty clearly refers to defects in the end-user’s computer, as 

opposed to other computers purchased by other customers on earlier or later dates. In 

addition, the warranty provides for HP’s obligation to repair or replace defective products 

only if HP “receives notice of such defects during the warranty period . . . .” 

Appellants’ argument is contradictory to Daugherty, supra, 144 Cal.App.4th 824, 

which held that “[a] warranty is a contractual promise from the seller that the goods 

conform to the promise.” (Id. at p. 830.) In Daugherty, the plaintiffs argued that 

Honda’s warranty did not require discovery of the defect during the warranty period if 

Honda was aware of the defect at the time of sale. The court rejected the plaintiffs’ 

argument, noting that numerous courts have found that a latent defect that is discovered 

after the express warranty has expired cannot form the basis for a breach of express 

warranty claim. (Id. at pp 831-832.)
18

The court in Daugherty reasoned: “. . . in giving its promise to repair or replace 

any part that was defective in material or workmanship and stating the car was covered 

for three years or 36,000 miles, Honda ‘did not agree, and plaintiffs did not understand it 

to agree, to repair latent defects that lead to a malfunction after the term of the 

warranty.’ ” (Daugherty, supra, 144 Cal.App.4th at p. 832.) The court stated further: 

“ ‘[v]irtually all product failures discovered . . . after expiration of the warranty can be 

attributed to a “latent defect” that existed at the time of sale or during the term of the 

warranty. All parts will wear out sooner or later and thus have a limited effective life. 

Manufacturers always have knowledge regarding the effective life of particular parts and 

the likelihood of their failing within a particular period of time[, and] can always be said 

to “know” that many parts will fail after the warranty period has expired. A rule that 

would make failure of a part actionable based on such “knowledge” would render 

meaningless time/mileage limitations in warranty coverage.’ ” (Daugherty, supra, 144 

Cal.App.4th at 830, quoting Abraham v. Volkswagen of Am., Inc. (2d Cir. 1986) 795 F.2d 

238, 250.) 

Appellants rely on Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal.App.4th 

908 (Hicks) for the proposition that the one-year time limit of HP’s express warranty 

should not bar claims of defects discovered after expiration, because the inverters in HP’s 

notebooks were “substantially likely to fail” during the notebooks’ “useful life.” In 

Hicks, homeowners sued their builders for faulty foundations in their homes. The court 

concluded that “proof of breach of warranty does not require proof the product has 

malfunctioned but only that it contains an inherent defect which is substantially certain to 

result in malfunction during the useful life of the product.” (Id. at p. 918.) The Hicks

court further stated: “Foundations . . . are not like cars or tires. Cars and tires have a 

limited useful life. . . . A foundation’s useful life, however, is indefinite.” (Id. at p. 923, 

fn. omitted.)
19

Hicks is readily distinguished from the present case. The court’s rationale in Hicks

focused on the lifespan of a home foundation, and the fact that the defect in the 

foundation could manifest in a malfunction at any time during that lifespan. As a result, 

the duration of the express warranty was not dispositive of a claim of defect. Here, 

unlike a home foundation with an indefinite useful life, a computer, like a car or tires, has 

limited useful life. 

Applying the rationale of Daugherty to the present case, HP is not liable for 

breach of warranty for those claims made after the expiration of the one-year warranty 

period. The warranty in this case required the end-user to notify HP during the warranty 

period. It is undisputed that Degenshein did not notify HP of the problem with his 

computer until after his one-year warranty had expired. Moreover, HP’s putative 

knowledge of a potential failure of a product in the future or of a latent defect that could 

cause product failure down the road does not alter the one-year time limits provided in 

the express warranty as appellants suggests. (See, e.g., Daugherty, supra, 144 

Cal.App.4th at p. 830.) Appellants’ interpretation of the warranty suggesting that 

constructive notice would satisfy the notice requirement is unreasonable and would not 

effectuate the intent of HP and the end-user. “A contract must receive such an 

interpretation as will make it . . . reasonable, and capable of being carried into effect, if it 

can be done without violating the intention of the parties.” (Civ. Code § 1643.) 

Because it is undisputed that Degenshein did not notify HP about a problem with 

his display screen until after his one-year warranty had expired, his claim for breach of 

warranty fails, and HP is entitled to judgment as a matter of law as to Degenshein’s 

breach of warranty cause of action.

Giuliano-Ghahramani

Unlike Degenshein, Giuliano-Ghahramani notified HP of a problem with the 

display screen of her notebook computer within the one-year warranty period. 
20

Specifically, Giuliano-Ghahramani purchased her notebook in January 2002, and notified 

HP about problems with her display screen in November 2002. In response, HP replaced 

the inverter. Giuliano-Ghahramani notified HP about display screen problems a second 

time in December 2002, and HP again replaced the inverter. Finally, GiulianoGhahramani notified HP in June 2003 about display screen problems after the expiration of 

the one-year warranty, and the 90-day repair warranty. HP did not repair GiulianoGhahramani’s notebook outside of the warranty period. 

Giuliano-Ghahramani asserts that there is a triable issue of fact as to whether HP 

actually repaired her notebook computer in 2002 when she twice presented it to HP for 

display screen problems during the warranty period. Specifically, although GiulianoGhahramani stated that the notebook worked “great” after HP returned it to her during the 

warranty, the fact that the notebook had display screen problems in June 2003 after the 

warranty had expired demonstrates that HP’s repair during the warranty was insufficient. 

Giuliano-Ghahramani asserts that when she submitted her notebook to HP, HP replaced 

her inverter with other defective inverters. 

Giuliano-Ghahramani points to the TDK and Ambit service notes of April 2002 and 

November 2003, respectively as evidence that HP’s repair of her notebook during the oneyear warranty was not adequate. Specifically, she argues that as directed by the TDK 

service note, the TDK inverter in her notebook was replaced with an Ambit inverter when 

she submitted the notebook for repair during the one-year warranty period. She asserts that 

pursuant to the Ambit service note, Bizcom used a screwdriver that had torque settings that 

were too high. As a result, Giuliano-Ghahramani argues, HP did not adequately repair her 

computer under the warranty.

Here, under the terms of the warranty, HP replaced the inverter in GiulianoGhahramani’s computer and returned it to her in operative condition. However, GiulianoGhahramani’s computer malfunctioned again during the warranty, and HP again replaced 
21

the inverter. Giuliano-Ghahramani argues HP breached the warranty because it replaced 

one faulty inverter with another. Therefore, it did not return her computer to her in a 

condition as warranted, namely, to be free from defect. In fact, the computer was returned 

to her in a defective condition, which was a breach of warranty. 

HP asserts that because Giuliano-Ghahramani’s notebook continued to function 

throughout the duration of the one-year warranty period, HP complied with its warranty. 

HP further argues that the fact that Giuliano-Ghahramani’s notebook malfunctioned six 

months after the expiration of the warranty is not a consideration in a breach of warranty 

claim. Daugherty makes it clear that that a plaintiff cannot maintain a breach of warranty 

claim for a product that is repaired within the warranty period and fails again months 

after the warranty has expired. (Daugherty, 144 Cal. App. 4th at pp. 830-832.) If the 

result were otherwise, it “ ‘would change the landscape of warranty and product liability 

law in California. Failure of a product to last forever would become a “defect,” a 

manufacturer would no longer be able to issue limited warranties, and product defect 

litigation would become as widespread as manufacturing itself.’ ” (Daugherty, supra 144 

Cal. App. 4th at p. 829.)

Appellants’ claim for breach of express warranty with regard to GiulianoGhahramani is distinct from that in Daugherty. Specifically, appellants do not base their 

claim for breach of warranty on the fact that Giuliano-Ghahramani’s notebook had a 

defect that manifested outside the warranty period. Appellants argue that HP breached its 

warranty by replacing one faulty inverter for another. As a result, HP failed to adequately 

repair Giuliano-Ghahramani’s notebook, and did not return it to her in the condition as 

warranted.

In support of their argument that failure to repair can form a basis for a breach of 

warranty claim, appellants cite cases dealing with inadequate repairs under the SongBeverly Consumer Warranty Act (Civ. Code § 1790, et seq.). These cases include Jensen 
22

v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112 (Jensen), Oregel v. American 

Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, and the recent case of Donlen v. Ford 

Motor Company (2013) 217 Cal.App.4th 138 (Donlen).8 All of these cases involved 

multiple unsuccessful attempts to repair the consumers’ cars within the warranty period 

and addressed the question of whether there was substantial evidence to support a finding 

of inadequate repair. 

While the present case does not encompass a claim for violation of the SongBeverly Act, the cases appellants cite are illustrative of what constitutes a failure to repair. 

In Jensen, the plaintiff experienced a recurring brake problem with her BMW, and she 

returned the car to the dealer for repair multiple times. (Jensen, supra, 35 Cal.App.4th at 

p.p. 120-121.) The brake problem persisted and Jensen sought relief under the SongBeverly Act for failure to repair. After a jury returned a verdict for Jensen, BMW 

appealed, arguing there was insufficient evidence to support a finding that BMW failed to 

adequately repair her car. (Id., at p. 134.) The Court of Appeal affirmed, finding that there 

was substantial evidence to support the jury’s finding of failure to repair. (Id., at p. 135) 

Specifically, the court noted that Jensen experienced the same brake problem after each 

repair attempt, BMW had issued a service bulletin to dealerships alerting them to the brake 

problem, and there was expert testimony that the brake problem persisted. (Ibid.) 

There are factual similarities between the present case and Jensen. GiulianoGhahramani presented evidence that she continued to experience the same display screen 

problems after submitting her notebook for repeated repairs, evidence of the Ambit service 

note that provided that the torque setting for the screwdrivers being used to replace the 

inverters was too high and caused cracking of the solder joint, and expert opinion of 

 

8 Donlen was brought to this court’s attention by appellants’ letter brief filed 

June18, 2013.
23

Langberg stating that using too much torque on an already defective inverter design would 

cause cracking that would continue to worsen until complete failure of the inverter.

The evidence in this case creates a triable issue as to whether HP adequately 

repaired Giuliano-Ghahramani’s notebook when she submitted it to HP two times during 

the one-year warranty. While HP focuses its argument on the fact that GiulianoGhahramani stated that the notebook worked “great” when it was returned to her, there is 

evidence showing that the notebook continued to have the same flickering display screen 

problems after both repair attempts. In addition, there is evidence that when GiulianoGhahramani’s notebook failed six months after the expiration of the warranty, it was 

because of the faulty inverter. This repeated failure of Giuliano-Ghahramani’s notebook 

following two repair attempts could lead a reasonable trier of fact to find that HP failed to 

adequately repair her notebook. 

We find there is a triable issue of fact as to Giuliano-Ghahramani’s breach of 

express warranty claim. The evidence here creates a triable issue as to whether HP 

complied with its warranty by replacing a faulty inverter with another faulty inverter, and 

returning Giuliano-Ghahramani’s notebook to her in a defective condition. The fact that 

Giuliano-Ghahramani’s notebook continued to present the same flickering display screen 

problems after two repair attempts, and ultimately failed because of the faulty inverter 

creates a triable issue as to whether HP complied with its warranty. HP is not entitled to 

judgment as a matter of law as to the breach of express warranty claims. 

Class Certification Orders

Appellants assert the court erred in failing to certify a nationwide class, and in 

denying certification of the CLRA claims

Denial of Nationwide Class-Factual Background

In 2005, Rutledge and Degenshien moved for class certification of the breach of 

express warranty, violation of the UCL and unjust enrichment claims; they did not seek 
24

certification of the CLRA claims. In the motion, Rutledge and Degenshein alleged that 

Zinfandel 3.5 and 4.0 notebook computers released from December 2001 until November 

2002 contained inverters that were substantially certain to fail during the “useful life” of 

the computer. In addition, the motion alleged that HP knew of the defect in the display 

screen components in the computers at the time of class members’ purchases beginning 

in December 2001. 

In 2007, the trial court certified a class consisting of only California residents, 

denying appellants’ request for a nationwide class.9 As a result, Degenshein was 

designated as the only class representative. The certified class was defined as “[a]ll 

persons or entities who own or owned one or more of the following HP Pavilion 

notebook models: zt1150; zt1155; zt1170; zt1175; zt1108; zt1185; zt1190; zt1195; 

zt1250; xz185; xz275; and xz295; containing a TDK TAD669 Rev. 2.0 inverter or an 

Ambit inverter, part numbers PK070012310 and PK070011210; who purchased the 

notebook from an entity located in California; and who experienced a dim, dark, or 

flickering display.” 

Analysis

Appellants argue on appeal that the trial court erred in limiting the class to only 

California residents, rather than HP consumers nationwide. 

“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. . . . [citations] . . . . [Accordingly,] a trial court ruling supported by 

substantial evidence generally will not be disturbed ‘unless (1) improper criteria were 

used [citation]; or (2) erroneous legal assumptions were made [citation]’ [citation].’ ” 

(Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435-436.) 

 

9

 HP challenged the trial court’s certification of the class. This court affirmed the 

trial court’s class certification order in Hewlett-Packard Co. v. Superior Court, supra,

167 Cal.App.4th 87.
25

In denying appellants’ request to certify a nationwide class, the court found that 

appellants: “fail[ed] to establish the constitutionality of applying California law to outof-state class members’ claims. [Appellants] also fail[ed] to persuasively articulate why 

California has a special obligation that would fairly call for it to assume the burden of 

adjudicating a nationwide class action. The purchases occurred at local retail stores in a 

multitude of jurisdictions. Presumably consumers would have exercised their warranty 

rights under their respective states’ laws. Further, there appear to be warranty issues 

unique to some jurisdictions. [Appellants] fail[ed] to provide sufficient information or a 

satisfactory assessment as to how the state law differences may be managed fairly and 

efficiently.” 

A nationwide class is proper under constitutional law when a state has 

“ ‘significant contact or significant aggregation of contacts’ to the claims asserted by 

each member of the plaintiff class, contacts ‘creating state interests,’ in order to ensure 

that the choice of [forum] is not arbitrary or unfair.” (Phillips Petroleum Co. v. Shutts

(1985) 472 U.S. 797, 821-822.) Appellants point to the significant contacts California 

has with the claims asserted against HP that justify the application of California law 

under constitutional law principles. Specifically, HP a has national advertising campaign 

that was created by a California agency. HP’s contracts with Compal for the production 

of the computers were governed under California law. HP’s designated service provider 

for computer repairs, Bizcom, is located in California. Finally, certain HP witnesses are 

located in California, including David Lee, who approved the service notes at issue in this 

case. Mr. Lee works in HP’s Mobile Computing Division located in Cupertino.

Appellants argue on appeal that the court erred in finding that California did not 

have sufficient contacts to the claims of the class members such that California law 

should apply to non-resident plaintiffs. Appellants cite cases of California computer 

manufacturers that have been included in nationwide class actions. (See, e.g. Wershba v. 
26

Apple Computer, Inc. (2001) 91 Cal.App.4th 224 (Wershba); Wolph v. Acer America

Corp. (2011) 272 F.R.D. 477 (Wolph).) Appellants argue the same result should be 

applied in this case, namely, that the court should certify a nationwide class. 

In Wershba, plaintiffs sued Apple Computer for violations of the UCL and the 

CLRA in connection with Apple’s decision to terminate free technical support promised 

to purchasers of certain Apple products. (Wershba, supra, 91 Cal.App.4th at p. 231.)

This court found that a nationwide class was appropriate for settlement of the action

because the plaintiffs had established that California had sufficient contacts with the 

claims against Apple such that application of California law would be constitutionally 

appropriate. (Id. at p. 244.) In arriving at that conclusion, this court considered the fact

that Apple is a California corporation, with its principle place of business in Cupertino, 

the brochures promising free technical support were made and distributed from 

California, and the policy to terminate the technical support at issue in the case was made 

at Apple’s headquarters in California. (Id. at p. 242.)

Moreover, in Wolph, the court found a nationwide class proper because the 

warranty contracts at issue contained an express California choice-of-law provision, the 

computers that were alleged to be defective were designed, developed and tested in 

California, and the decisions about retail sales of the computers were made in California. 

(Wolph, supra, 272 F.R.D. at pp. 484-485.)

The facts of Wershba and Wolph are similar to the present case. HP’s 

headquarters and principle place of business is California, policy decisions regarding the 

notebooks at issue, including issuing the service notes, were made in California, and all 

of the warranty repairs were performed in California. As such, appellants established

sufficient contacts with California as to each class member’s claims such that application 

of California law to non-resident plaintiffs would not be “arbitrary and unfair.” (Phillips 

Petroleum Co., supra, 472 U.S. at pp. 821-822.) 
27

Moreover, choice-of-law rules, under which the trial court determines whether the 

law of other states is materially different and whether other states have an interest in 

having their law applied, support the application of California law to a nationwide class.

(See, e.g., Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906, 919

(Washington Mutual).) The state where the injury occurs has a “ ‘predominant interest’ ” 

in applying its law. (McCann v. Foster Wheeler LLC, (2010) 48 Cal.4th 68, 98

(McCann).) In addition, Civil Code section 1646, provides that “[a] contract is to be 

interpreted according to the law and usage of the place where it is to be performed; or, if 

it does not indicate a place of performance, according to the law and usage of the place 

where it is made.” (Civ. Code § 1646.) Here, appellants’ allege that HP failed to comply 

with its repair obligations under the express warranty. As such, the alleged injuries

occurred in California where HP conducted the repairs, and California has the 

“ ‘predominant interest’ ” in applying its law. (McCann, supra, 48 Cal.4th at p. 98.) 

Here, in denying certification of a nationwide class, the court noted that 

application of California law to non-resident plaintiffs would not be appropriate to the 

extent that consumer protection laws differ in other jurisdictions, potentially affording 

plaintiffs better remedies or more claims. The court stated: “[y]ou’re asking the court to 

apply California law and that may be appropriate except to the extent it may deprive 

somebody of a cause of action he would otherwise have.” The court further noted that 

application of California law to non-resident plaintiffs would be inappropriate “to the 

extent that we would be depriving somebody of a right where they acquired their 

computer in another jurisdiction, perhaps from a retailer, or who knows where, and 

they’re governed by other laws in those jurisdictions.” 

The same rationale cited by the trial court was rejected by this court in Wershba , 

noting, “California’s consumer protection laws are among the strongest in the country.” 

(Wershba, supra, 91 Cal.App.4th at p. 242.) This court cited Clothesrigger Inc. v. GTE 
28

Corp. (1987) 191 Cal.App.3d 605 (Clothesrigger) for the proposition that California 

courts may apply California’s pro-consumer laws to non-residents, stating, “ ‘California’s 

more favorable laws may properly apply to benefit nonresident plaintiffs when their 

home states have no identifiable interest in denying such persons full recovery.’ ” 

(Wershba, supra, 91 Cal.App.4th at p. 243, citing Clothesrigger, supra, 191 Cal.App.3d 

at p. 616.) The court in Wolph found similarly, stating, “California’s interest in having its 

consumer protection laws applied to claims involving those notebooks outweigh any 

other particular state’s interest in have its laws applied.” (Wolph, supra, 272 F.R.D. at 

p. 486.) 

Here, because California has sufficient contacts to the claims of the class members 

to meet constitutional standards, the burden was on HP to demonstrate that the interests 

of other state’s laws were greater than California’s interests. (See Wershba, supra, 91 

Cal.App.4th at p. 244; Washington Mutual, supra, 24 Cal.4th at p. 921.) Other than to 

refer to the possibility that other jurisdictions have differing warranty laws that could 

affect consumers disparately, the court did not address whether HP met its burden of

demonstrating that the interests of other state’s laws were greater than California’s, nor 

did it make such finding. 

Moreover, the court improperly placed the burden on appellants “to persuasively 

articulate why California has a special obligation that would fairly call for it to assume 

the burden of adjudicating a nationwide class action.” The same reasoning was rejected 

in Clothesrigger, where the trial court denied nationwide class certification because 

“California had no interest in becoming the ‘savior’ of the other 49 states.”

(Clothesrigger, supra, 191 Cal.App.3d at p. 613.) Such consideration was not proper 

under choice-of-law rules. 

We find the trial court’s order denying nationwide class certification must be 

reversed. The record shows that California had sufficient contacts with the claims such 
29

that California has an interest in applying its laws to nonresident plaintiffs satisfying 

constitutional principles. In addition, HP did not satisfy its burden of showing that other 

state’s interests in applying their law were greater than California’s. Here, the court 

improperly used the possibility of differing warranty laws as a reason to deny nationwide 

certification without considering whether other jurisdictions had an interest in applying 

those laws. Finally, the court improperly required appellants to demonstrate why 

California had a “special obligation” in applying its consumer protection laws to 

nonresident plaintiffs. Such consideration is not a proper one for a choice-of-law 

analysis.

Denial of Class Certification of CLRA Claims-Factual Background

In between the first and second motions for class certification, appellants moved 

for summary adjudication of some of HP’s affirmative defenses. The court granted the 

motion as to the following affirmative defenses asserted by HP: accord and satisfaction, 

intervening and superseding events, acts of third parties, and failure to mitigate. 

Appellants filed a second motion for class certification seeking to certify the 

CLRA claims for class treatment. The court denied the motion, reasoning that 

Degenshein’s failure to request certification of the CLRA claims estopped GiulianoGhahramani from requesting such certification, and that certification would present oneway intervention issues given the adverse adjudication of HP’s affirmative defenses.

 Analysis

In denying appellants’ request for certification of its CLRA claims, the court 

determined that such certification was improper under Fireside Bank v. Superior Court

(2007) 40 Cal.4th 1069 (Fireside Bank) and its prohibition against one-way intervention. 

The court noted that “class certification issues must be resolved prior to any merits 

determination.” In addition, the court noted that appellants could have moved for 
30

certification of the CLRA claims “years ago” and “have failed to adequately explain why 

they did not do so and should be allowed to do so now.” 

The problem of one-way intervention occurs when “not-yet-bound absent 

plaintiffs may elect to stay in a class after favorable merits rulings but opt out after 

unfavorable ones.” (Fireside Bank, supra, 40 Cal.4th at p. 1074.) Thus, “trial courts in 

class action proceedings should decide whether a class is proper and, if so, order class 

notice before ruling on the substantive merits of the action.” (Ibid.) The doctrine is 

designed to prevent class members from taking advantage of favorable rulings while 

avoiding any res judicata effect of unfavorable ones, essentially picking and choosing 

how to proceed based on how the merits of the class litigation unfold. 

Certifying new class claims in a case such as this where the court had already 

made decisions on the merits would violate the proscription against one-way intervention, 

in that “potential members of the class can reserve the decision to become part of the 

class” until after the court has made decisions on the merits of the case. This creates the 

“classic no-win option” for the HP. (Home Savings v. Superior Court (1974) 42 

Cal.App.3d 1006, 1011.) Moreover, certifying a new class claim would subject HPs to 

“ ‘ “ ‘an open-ended lawsuit that cannot be defeated, cannot be settled, and cannot be 

adjudicated.’ ” ’ ” Fireside Bank, supra, 40 Cal.4th at 1081.)

We find the court properly denied appellants’ request to certify the CLRA claims, 

and the order was supported by substantial evidence. At the time of appellants’ request, 

the court had already ruled that HP was precluded from asserting some of its affirmative 

defenses. If the court allowed the requested certification, newly added class members 

could join the class with the benefit of knowing that HP would be barred from raising the 

adjudicated defenses. The order denying certification of the CLRA claims will not be 

disturbed on appeal. 
31

Discovery Sanctions

Appellants dispute three orders of the trial court regarding discovery sanctions. 

The first is an order of the trial court sanctioning appellants for an untimely motion to 

compel compliance with a subpoena of a third party. The other two orders denied

appellants’ request for evidentiary sanctions against HP.

Monetary Sanctions Against Appellants

Appellants assert the court erred in ordering $4,000 in monetary sanctions against 

them in connection with their 2011 motion to compel documents requested in their 

July 2004 deposition subpoena of Bizcom.10 Appellants argue the sanctions were not 

appropriate because their motion to compel was not untimely, they presented colorable 

arguments to the trial court regarding the timeliness of the motion, and the sanctions 

order violated due process. 

Factual Background

Appellants brought a motion to compel production of documents originally 

demanded in a July 2004 subpoena of Bizcom. The motion to compel was filed in 

February 2011. The court deemed the motion untimely based on Code of Civil Procedure 

section 2025.480, subdivision (b), and while Bizcom requested monetary sanctions in the 

amount of $38,673.25, the court ordered sanctions in the reduced amount of $4,000. 

The record shows that appellants served a deposition subpoena on Bizcom on 

July 2, 2004 that contained 14 document requests. Bizcom produced documents and 

served objections on August 27, 2004. Appellants did not contact Bizcom again until 

nearly two years later in April 2006. At that time, appellants noted that Bizcom 

“ ‘responded to [the] subpoena in 2004,’ ” and that Bizcom “ ‘worked amicably . . . to 

respond to that subpoena.’ ” Appellants further informed Bizcom that they would be 

 

10 Neither HP, nor Bizcom assert arguments on appeal regarding this sanctions 

order. Bizcom appeared oral at argument. We denied its request to argue, because 

Bizcom did not file a brief in this case.
32

serving a second subpoena seeking “ ‘a subset’ ” of the documents requested in 2004. 

Bizcom served objections to the second subpoena request on April 14, 2006, and 

produced the documents requested on May 1, 2006. Four years later, in 2010, Appellants 

again contacted Bizcom stating their belief that Bizcom left out certain documents 

requested in the 2004 and 2006 requests. Appellants served three separate subpoenas on 

Bizcom, and on August 24, 2010, Bizcom served objections. After participating in an 

informal discovery conference in the trial court, Bizcom produced additional documents 

on September 20, 2010. Appellants were not satisfied and sought additional documents. 

Ultimately, appellants served the motion to compel on February 11, 2011. 

Analysis

“A trial court has broad discretion when imposing a discovery sanction. 

Accordingly, the trial court’s order will not be reversed on appeal in the absence of a 

manifest abuse of discretion that exceeds the bounds of reason . . . .” (Lee v. Lee (2009) 

175 Cal.App.4th 1553, 1559 (Lee).) The appellant bears the burden on appeal of 

demonstrating that the trial court abused its discretion in imposing a discovery sanction. 

(Young v. Rosenthal (1989) 212 Cal.App.3d 96, 114-115.) 

Code of Civil Procedure section 2025.480, subdivision (b) provides that a motion 

to compel further answers from a deponent “shall be made no later than 60 days after the 

completion of the record of the deposition . . . .” Code of Civil Procedure 

section 2025.480, subdivision (j) provides, “The court shall impose a monetary sanction 

under Chapter 7 (commencing with Section 2023.010) against any party, person, or 

attorney who unsuccessfully makes or opposes a motion to compel an answer or 

production, unless it finds that the one subject to the sanctions acted with substantial 

justification or that other circumstances make the imposition of the sanction unjust.”

Appellants assert the court erred in ordering the sanctions, because the 2011 

motion was not untimely. Appellants cite Unzipped Apparel, LLC v. Bader (2007) 156 
33

Cal.App.4th 123 (Unzipped) in arguing that because Bizcom agreed to produce 

documents in the deposition, they “can rest assured that the 60-day period [during which 

it must bring a motion to compel] does not begin to run until the production is over.” 

Appellants argue that Bizcom’s production of documents from the July 2004 deposition 

was not complete at the time of the motion, and as a result, the 60-day period for filing a 

motion to compel had not run, and their 2011 motion was timely. 

In Unzipped, the court specifically noted that for a business record subpoena, such 

as the subpoena of Bizcom at issue here, the 60-day period during which a motion to 

compel must be filed, begins to run when the deponent serves objections on the party. At 

the time the objections are served, the record of deposition is complete. (Unzipped, 

supra, 156 Cal.App.4th at p. 136.) In reference to the 60-day period, the Unzipped court 

noted that “the deadline is mandatory.” (Ibid.) 

Based on our review of the record, appellants’ February 2011 motion to compel 

was untimely. Appellants continued to seek documents requested in their 2004 subpoena 

of Bizcom for seven years. If appellants were not satisfied with Bizcom’s production of 

documents from its initial request, the time to file a motion to compel was within 60 days 

of August 27, 2004, the date on which Bizcom served its objections to the 2004 

subpoena. 

The court did not err in finding appellants’ motion untimely under Code of Civil 

Procedure Section 2025.480, subdivision (b), and in ordering the monetary sanction 

under Code of Civil Procedure Section 2025.480, subdivision (j). The court did not 

abuse its discretion in concluding that appellants did not act with substantial justification 

in bringing the untimely motion. Contrary to appellants’ assertion, there is no due 

process violation in the sanctions order in this case. Appellants were on notice under 

Code of Civil Procedure Section 2025.480, subdivision (j) of a mandatory sanction for 

unsuccessfully making a motion to compel.
34

Denial of Evidentiary Sanctions Against HP

Appellants sought two evidentiary orders as discovery sanctions against HP. First, 

appellants sought an order establishing that the TDK and Ambit inverters were

substantially certain to fail. In addition, appellants sought an order establishing that HP

was on notice of and had knowledge of the defective nature of the TDK and Ambit

inverters as of January 15, 2002.

Factual Background

The specific discovery at issue in this case was related to monthly reports of 

customer calls to HP that were described by HP’s witness, Richard Chiaramonte at his 

deposition. Mr. Chiaramonte described reports that contained raw numbers of overall 

call center traffic with respect to all of HP’s consumer products. 

At the hearing on the motion for sanctions, the court asked appellants to provide a 

declaration from their expert, describing what information was missing from HP’s 

production of documents related to call data that would be relevant. The court stated: 

“[a]nd [appellant]s’ counsel, you have got, I presume, at this point, an expert retained 

who has reviewed materials . . . . [¶] . . . [¶] . . . I want a declaration from that expert that 

tells the Court what that expert thinks he or she needs to testify at trial and which they 

haven’t received. In other words, if they say I don’t—I can’t issue an opinion because I 

am missing X, Y, and Z. Appellants did not provide the requested information to the 

court. 

Analysis

As stated above, a trial court has broad discretion when imposing a discovery 

sanction. (Lee, supra, 175 Cal.App.4th at p. 1559.) Although the court has discretion in 

choosing a sanction, this discretion must be exercised in a manner consistent with the 

basic purposes of such sanctions, e.g., to compel disclosure of discoverable information. 

(Marriage of Economou (1990) 224 Cal.App.3d 1466, 1475.) Courts have continued to 
35

uphold the principle cited in Caryl Richards, Inc. v. Superior Court (1961) 188 

Cal.App.2d 300, that sanctions may not be imposed solely to punish the offending party.

(McGinty v. Superior Court (1994) 26 Cal.App.4th 204, 214 (McGinty) [“punishment is 

not an appropriate aim of discovery sanctions”].) Furthermore, the sanction chosen 

should not provide a windfall to the other party, by putting the prevailing party in a better 

position than if he or she had obtained the discovery sought and it had been favorable. 

(Deyo v. Kilbourne (1978) 84 Cal.App.3d. 771, 793; McGinty, supra, 26 Cal.App.4th at 

p. 214.)

Appellants argue the court abused its discretion in failing to order the evidence 

sanctions they sought. In support of this assertion, appellants point to the fact that over 

the course of litigation in this case, the court ordered HP to respond to appellants’ 

discovery requests at least seven times, and appellants sought and obtained six orders to 

enforce prior orders. 

On appeal, appellants do not demonstrate that the court’s refusal to order their 

requested evidentiary sanctions constituted “manifest abuse exceeding the bounds of 

reason.” (Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1435.) 

The sanctions appellants requested were sweeping evidentiary conclusions that were the 

heart of appellants’ theory of HP’s liability-namely that the TDK and Ambit inverters 

were substantially certain to fail and HP had knowledge of this fact in January 2002. If 

the sanctions were ordered, it would provide a windfall to appellants relieving them of 

their burden of proving their theory of liability. In denying appellants’ request for these 

sanctions, the trial court properly followed McGinty, and its rationale that the purpose of 

discovery sanctions is not avoidance of a decision on the merits.
36

DISPOSITION

The summary adjudication of the UCL claims of Degenshein, GiulianoGhahramani and the class in the first and second amended complaints in favor of HP is 

reversed. 

The no merits determination as to the CLRA claims of Degenshein and GiulianoGhahramani in the first and second amended complaints in favor of HP is reversed.

The summary adjudication of the breach of express warranty claim of Degenshein

in favor of HP is affirmed.

The summary adjudication of the breach of express warranty claim of GiulianoGhahramani and the class in favor of HP is reversed. 

The order denying certification of the CLRA claims is affirmed.

The order denying certification of a nationwide class is reversed.

The order imposing monetary sanctions against appellants is affirmed.

The order denying evidentiary sanctions against HP is affirmed.

Each party shall bear its own costs on appeal.

______________________________________

RUSHING, P.J.

WE CONCUR:

____________________________________

PREMO, J.

____________________________________

ELIA, J.
37

Trial Court: Santa Clara County Superior Court

Superior Court No.: CV817837

Trial Judge: The Honorable James P. Kleinberg

Attorneys for Plaintiffs and Green & Noblin

Appellants Ed Rutledge et al.: Robert S. Green

Bramson, Plutzik, Mahler & Birkhaeuser

Jenelle Welling

Kershaw, Cutter & Ratinoff

C. Brooks Cutter

Attorneys for Defendant and Drinker Biddle & Reath

Respondent Hewlett-Packard Company: Michael J. Stortz

Beth O’Neal Arnese

Bergeson

Daniel J. Bergeson

John W. Fowler

No appearance for Objector and Respondent

Rutledge et al. v. Hewlett-Packard Company

H036790