1 Filed 2/11/15 Aguirre v. Amscan Holdings CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)

DIONE AGUIRRE, Plaintiff and Appellant,

v. AMSCAN HOLDINGS, INC., et al., Defendants and Respondents. C073059 (Super. Ct. No. SCV 22986)

Plaintiff Dione Aguirre appeals from an orde r denying class certification. Plaintiff sued defendants Amscan Hold ings, Inc., and PA Acquisiti on, doing business as Party America (collectively Party America) on be half of herself and similarly situated individuals, alleging Party America violated Civil Code 1 section 1747.08 of the SongBeverly Credit Card Act of 1971 (§ 1747 et seq.) by routinely requesting and recording personal identification information, namely ZIP Codes, from customers using credit cards in its retail stores in California. The tria l court found that plaintiff’s proposed class of “[a]ll persons in California from whom Defend ant requested and recorded a ZIP code in

1 Further undesignated statutory re ferences are to the Civil Code.2 conjunction with a credit card purchase trans action from June 2, 2007 through October 13, 2010” is not an ascertainable class due to “plaintiff’s inability to clearly identify, locate and notify class members through a reasonable expenditure of time and money [citation] bars her from litigating this case as a class action.” Plaintiff appeals, arguing the trial court “erred in determining the clas s . . . was not ascertainable based upon the finding that each individual class member wa s not specifically id entifiable from [Party America’s] records, and thus, notice to the class cannot be directly provided to class members.” 2 We shall conclude that the trial cour t applied an erroneous legal standard in determining the proposed class is not asce rtainable and erred in its conclusion. Accordingly, we shall reverse and remand for further proceedings consistent with this opinion. FACTUAL AND PROCEDUR AL BACKGROUND A. Plaintiff’s First Amended Complaint Plaintiff filed her original complaint on June 2, 2008, and the operative first amended complaint on June 9, 2008. The first amended complaint alleges that Party America’s practice of requesting and record ing personal identification information, namely ZIP Codes, from its credit card cust omers at the point-of-sale violated section 1747.08, which prohibits pers ons and businesses from reques ting or requiring “personal identification information” as a condition to accepting a credit card as payment for goods or services. 3 As to plaintiff, the first amended comp laint alleges that within 12 months of bringing this action, plaintiff purchased an item from the Party America store in Placer

2 We permitted Consumer Federation of Calif ornia to file an amicus curiae brief in support of plaintiff.

3 The parties have stipulated that plaintiff is no longer pursuing the additional causes of action set forth in the operativ e first amended complaint.3 County using a credit card. During the transa ction, the cashier requested plaintiff’s ZIP Code, which plaintiff provided, believing she was required to do so to complete the transaction. The cashier then entered plainti ff’s ZIP Code into an electronic cash register. As to the class, the first amended compla int alleges that the “lawsuit is brought on behalf of an ascertainable statewide class consisting of all pers ons in California from whom [Party America] requested and record ed personal identific ation information in conjunction with a credit card transaction . . . .” 4 The members of the class are so numerous that joinder of all members is im practicable, and common questions of law and fact predominate, including: “whether eac h Class member engaged in a credit card transaction with [Party Americ a]”; “whether [Party America] requested the cardholder to provide personal identification information and recorded [suc h information] . . . during credit card transactions with Class members”; and whether such conduct violates section 1747.08. B. Party America’s Motion for Judgment on the Pleadings In May 2010, Party America filed a moti on for judgment on the pleadings on the sole ground that a cardholder’s ZIP Code doe s not constitute “personal identification information” within th e meaning of section 1747.08. Th e trial court granted the motion, plaintiff appealed, and we reversed, citing ourSupreme Court’s then recent decision in Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524 ( Pineda ), which holds that a cardholder’s ZIP Code “constitutes ‘personal id entification information’ as that phrase is used in section 1747.08” and that “reque sting and recording a cardholder’s ZIP Code,

4 The following were excluded from the class: Party America, “its corporate parents, subsidiaries and affiliates, officers and directors, any en tity in which Defendant has a controlling interest, and the legal representa tives, successors or assigns of any such excluded persons or entities.”4 without more, violates the [statute].” ( Id. at pp. 527-528.) ( Aguirre v. Amscan Holdings (Nov. 8, 2011, C067105 ) [nonpub opn.].) C. Party America’s Motion for an Order Denying Class Certification On or about September 25, 2012, Party America moved for an order striking and dismissing the class allegations from plaintiff’s operative comp laint (Cal. Rules of Court, rule 3.767(a)(3)) and denying class certification ( id., rule 3.764(a)) on the grounds “there is no ascertainable class,” and class cer tification is not the superior method for adjudication of this matter. Specifically, Party America argued that the class definition was vague and overbroad as to the class pe riod and type of credit card transaction covered making it difficult for persons hearing it to determine who is in the class and who would be bound by any judgment, “there is no means for identifyi ng or locating potential members of the class, or any customers, so as to notify them of this action,” and class treatment is inappropriate because it would expose Party America to damages that far exceed any damage to the class. In support of its motion, Party Amer ica tendered as evidence the parties’ responses to discovery. Such evidence indicated that from approximately November 2005 through October 13, 2010, it was Party America’s practice to request all of its customers for their ZIP Codes at the point-of-s ale, regardless of the method of payment. A ZIP Code prompt would appear on the regist er screen, and employees were instructed, pursuant to a written “ZIP Code Survey” policy, to ask the customer for his or her ZIP Code, and to enter it accurately. In the event a customer refused to provide his or her ZIP Code, employees were instructed to enter “ 99999.” Employees were admonished that “[e]ntering in false zip codes or not asking . . . will not be tolerated,” and “[a]nyone that does not enter in the accurate information will be subject to disciplinary action, up to and including termination.” The purpose of Pa rty’s America’s ZIP Code Survey policy was to determine new store locations and media placement purposes. Party America recorded the customer’s ZIP Code, along w ith the corresponding purchase amount.5 There were approximately 1 million credit card transactions at Party America’s California retail stores from June 2007 throu gh October 13, 2010. Party America did not monitor the number of unique cr edit card transactions in its stores; thus, the 1 million figure necessarily includes transac tions made by repeat customers. Party America does not have documents or a database identifying the names or addresses of those who paid with credit ca rds or those who provided ZIP Codes. The sales receipt issued by Party America to pl aintiff includes the date of purchase, the purchase amount, the method of payment (“AMEX ”), and the store in which the purchase was made. Plaintiff opposed the motion. She pres ented the following revised class definition in response to Party America’s assertion that the class definition se t forth in the first amended complaint was vague and overbroad: “All persons in California from whom Defendant requested and recorded a ZIP code in conjunction with a credit card purchase transaction from June 2, 2007 through October 13, 2010 (the ‘Class’). [¶] The following persons are excluded from the Class: (i) pe rsons who utilized a credit card issued for business purposes; (ii) pers ons whose personal identification information was required for a special purpose incidental but related to the individual credit card transaction, including but not limited to information related to shi pping, delivery, servicing, or installation of the purchased merchandise, or for special orders; (iii) officers and directors of Defendant and of its corporate parents, s ubsidiaries, affiliates orany entity in which [Defendant] has a controlling interest, and the legal representative, successors, or assigns of any such excluded persons or entities; and (iv) the Court. ” The parties agreed that plaintiff could oppose Party America’s moti on on the basis of the revised definition. In addition, plaintiff disputed Party Am erica’s claim that she must establish a means for identifying or locating potential member s of the class so as to notify them of the action, arguing that any such requirement “improperly conflated ascertainability, class member identification, and notice into a single requirement . . . .” She asserted that the6 revised class definition satisfied the as certainability requireme nt because “[a]ny individual who looks at that cl ass definition will know whether or not they’re in that class and can confirm through objective evidence that they ar e, in fact, a member of that class.” As for Party America’s argument that there is no objective evidence that would indicate class membership, plaintiff poi nted to credit card statem ents and sales receipts. According to plaintiff, potential class member s have the ability to present a receipt or credit card statement showing a credit card tr ansaction was entered into on a specific date, at a specific store locati on, and the specific amount of the purchase. That document “could [then] be cross-referenced with the records of defendant to show the specific purchase amount, show a ZIP Code was requeste d associated with that specific purchase amount and the transaction records.” Finally, plaintiff argued that proceeding as a class action is the superior form of adjudication an d that the size of Party America’s potential liability should not be considered. In its reply, Party America conceded that plaintiff’s revised class definition cured the overbreadth issue, but argu ed that plaintiff nevertheless had failed to establish that “the proposed class, however redefined,” was ascertainable. According to Party America, plaintiff failed to establish that “there exists a ‘ means for identifying class members.’ ” “[O]ne needs to be able to identify the universe of people, not the specific individuals. . . . [T]here must be a way to id entify generally this group through records of . . . the defendant or some other convenient way to do this so that you can get a definition in front of these people so that they can then self-iden tify. Otherwise, there is no ascertainable class . . . .” “To suggest that ascer tainability is achieved by the speculative assertion that the supposed class members ma y have their own records is ridiculous. Neither the parties nor the court have any idea how to identify these people in the first place in order to give them notice of the class ac tion so that they may then ‘self-identify’ as . . . class members.”7 D. The Trial Court’s Ruling on the Motion for an Order De nying Class Certification The trial court agreed with Party Ameri ca that plaintiff failed to establish the existence of an ascertainable class, and thus , granted the motion to strike and dismiss the class allegations and to deny class certification. According to the trial court, “A class is ascertainable when (1) the members of the class are clearly identifiable and the size of the class is reasonably controlled; and (2) the members can be located and notified of the action through reasonable expend iture of time and money. ( Reyes v. Board of Supervisors (1987) 196 Cal.App.3d 1263, 1274-1275 .)” The court also noted that it “is not aware of any authority that allows speculative advertising to establish an ascertainable class or that a llows purported class members to self-identify without first establishing an ascertainable class.” In concluding plaintiff faile d to establish the existence of an ascertainable class, the trial court reasoned: “Defendants’ disc overy responses state they did not retain customers’ names and that they cannot inde ntify customers from whom they obtained zip codes during credit card transactions. Pl aintiff has not challenged those discovery responses. In fact, plaintiff’s own discovery responses acknowledge th at she is not aware of the identity of any other member of the purported class and that she does not know how many people are in the purported class. Under these circumst ances, any type of notice would necessarily be both over-inclusive (it would be distributed to individuals who never shopped at defendants’ stores) and under-inclusive (there is no certainty the notice would reach all individual s who might have a claim). [¶] Furthermore, discovery has been ongoing for mont hs, and at the initial hearing on this motion . . . , the parties agreed that additional discovery was not cont emplated and would not assist the court in deciding this motion. In light of the foregoing and the auth orities cited above, plaintiff’s inability to clearly identify, locate and notify cla ss members throug h a reasonable expenditure of time and mone y . . . bars her from litigating this case . . . .”8 The trial court did not address the partie s’ arguments as to whether a class action was a superior means of proceeding. DISCUSSION Plaintiff contends that the trial court erre d in concluding that sh e failed to establish an ascertainable class because “each individual class me mber was not specifically identifiable from [Party Ameri ca’s] records, and thus, notic e . . . cannot be directly provided to class memb ers.” We agree. A. Section 1747.08 Section 1747.08 prohibits merchants from requesting and recording “personal identification information” as part of a cred it card transaction. (Civ. Code, § 1747.08, subd. (a)(2).) A cardholder’s ZIP Code “cons titutes ‘personal identification information’ as that phrase is used in section 1747.08, ” and “requesting and recording a cardholder’s ZIP Code, without more, viol ates the [statute].” ( Pineda, supra, 51 Cal.4th at pp. 527- 528.) “Any person who violat es [section 1747.08] shall be subject to a civil penalty not to exceed two hundred fi fty dollars ($250) for the first violation and one thousand dollars ($1,000) for each subse quent violation, to be assessed and collect ed in a civil action brought by the person paying with a credit card . . . . When collected, the civil penalty shall be payable, as appropriate, to the pers on paying with a cred it card who brought the action . . . .” (§ 1747.08, subd. (e).) B. Rules Governing Class Acti ons and Standard of Review Courts have assumed without specifically deciding that section 1747.08 authorizes class actions. (See, e.g., Archer v. United Rentals, Inc. (2011) 195 Cal.App.4th 807, 828- 830; TJX Companies, Inc. v. Superior Court (2008) 163 Cal.App.4th 80, 84-89; Korn v. Polo Ralph Lauren Corp. (E.D.Cal. 2008) 644 F.Su pp.2d 1212, 1215-1216; Yeoman v. Ikea U.S. West, Inc. (S.D.Cal. May 4, 2012, No. 11cv 701 WQH (BGS)) 2012 U.S. Dist.9 LEXIS 63888.) 5 In the trial court, Party America argued that the class allegations should be dismissed because the Song -Beverly Credit Card Act does not authorize class actions. The trial court rejected Party’s America’s assertion, and Party America failed to challenge the trial court’s decision. Accordi ngly, we shall assume without deciding that class actions are authorized under section 1747.08. In California, Code of Civil Procedure section 382 authorizes class action suits when “the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court . . . .” (Code Civ. Proc., § 382.) “Dra wing on the language of Code of Civil Procedure section 382 and federal precedent, [our Supreme Cour t] ha[s] articulated clear requirements for the certification of a class. The party advo cating class treatment must demonstrate the existence of an ascertainable and sufficiently numerous cla ss, a well-defined community of interest, and substantial benefits from ce rtification that render proceeding as a class superior to the alternatives.” ( Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021.) Th e only element at issue here is the existence of an ascertainable class. The meaning and purpose of that elem ent are detailed in our discussion below. “Because trial courts are ideally situat ed to evaluate the efficiencies and practicalities of permitting group action, they are afforded great disc retion in granting or denying certification. The denial of certificati on to an entire class is an appealable order [citations], but in the absence of other error, a trial court ruling supported by substantial evidence generally will not be disturbed ‘unless (1) improper criteria were used [citation];

5 Contrary to Party America’s assertion, unpublished federal opinions may be cited as persuasive, although not binding, authority. (Cal. Rules of Court, rule 8.1115; see also Farm Raised Salmon Cases (2008) 42 Cal.4th 1077, 1096, fn. 18.) Rule 8.1115 of the California Rules of Court prohibits the c itation of unpublished opinions of California state courts, with certain limited exceptions. (Cal. Rules of Court, rule 8.1115(a).) We shall disregard the unpublishe d superior court opinions cite d and relied upon by plaintiff.10 or (2) erroneous legal assumptions were made [citation]’ [cita tion]. Under this standard, an order based upon improper criteria or inco rrect assumptions calls for reversal ‘ “even though there may be substantia l evidence to support the cour t’s order.” ’ [Citations.] Accordingly, we must examine the trial court’s reasons for denying class certification. ‘Any valid pertinent reason st ated will be sufficient to up hold the order.’ [Citation.]” ( Linder v. Thrifty Oil Co. (2000) 23 Cal.4t h 429, 435-436 ( Linder ).) C. The Trial Court Erred in Findi ng the Class Is Not Ascertainable The trial relied on “plain tiff’s inability to clearly identify , locate and notify class members through a reasonable ex penditure of time and money” to conclude that the class proposed by plaintiff was not ascertainable. (Italics added.) The trial court erred. “A class is ascertainable if it identifies a group of unna med plaintiffs by describing a set of common characteristics sufficient to allow a member of that group to identify himself or herself as having a right to recover based on the description.” ( Bartold v. Glendale Federal Bank (2000) 81 Cal.Ap p.4th 816, 828 ( Bartold); see also Sevidal v. Target Corp. (2010) 189 Cal.App.4th 905, 920; Ghazaryan v. Diva Limousine, Ltd. (2008) 169 Cal.App. 4th 1524, 1533; Harper v. 24 Hour Fitness, Inc. (2008) 167 Cal.App.4th 966, 977; Medrazo v. Honda of North Hollywood (2008) 166 Cal.App.4th 89, 101 ( Medrazo ); Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 14; Global Minerals & Metals Corp. v. Superior Court (2003) 113 Cal.App.4th 836, 858 ( Global Minerals ); Aguiar v. Cintas Corp. No 2. (2006) 144 Cal.App.4th 121, 136 ( Aguiar).) “Ascertainability is achiev ed ‘by defining the class in terms of objective characteristics and comm on transactional facts making the ultimate identification of class members possible when that identification becomes necessary.’ ” ( Bomersheim v. Los Angele s Gay & Lesbian Center (2010) 184 Cal.Ap p.4th 1471, 1483, quoting Hicks v. Kaufman & Broad Home Corp . (2001) 89 Cal.App.4th 908, 915 ( Hicks ).) “Whether a class is ascertainable is determined by exam ining (1) the class definition, (2) the size of the class, and (3) the means availabl e for identifying class11 members” at the remedial stage ( Reyes v. Board of S upervisors, supra, 196 Cal.App.3d at pp. 1271, 1274-1275 ( Reyes ).) 6 “While often it is said that ‘[c]lass me mbers are “ascertainab le” where they may be readily identified without unreasonable ex pense or time by reference to official records’ [citations], that statement must be considered in light of the purpose of the ascertainability requirement.” ( Medrazo, supra, 166 Cal.App.4th at p. 101.) “Ascertainability is required in order to give notice to putative class members as to whom the judgment in the action will be res judicata.” ( Hicks, supra, 89 Cal.App.4th at p. 914; see also Aguiar, supra, 144 Cal.App.4th at p. 135; Medrazo, supra, 166 Cal.App.4th at p. 101.) The goal in defining an ascertainab le class “is to use terminology that will convey ‘sufficient meaning to enable persons hearing it to determine whether they are members of the class plaintiffs wish to repres ent.’ [Citation.] . . . ‘Otherwise, it is not possible to give adequate notice to class memb ers or to determine after the litigation has concluded who is barred from relitigating.’ ” ( Global Minerals, supra, 113 Cal.App.4th at p. 858.) Contrary to the trial court’s order, the representative plaintiff need not identify, much less locate, individual cla ss members to establish the ex istence of an ascertainable

6 The trial court cited Reyes , supra, 196 Cal.App.3d 1263, 1274-1275 as authority for the proposition that “[a] class is ascertainable when (1) the members are clearly identifiable and the size of the class is reasonably contro lled; and (2) the members can be located and notified of the action through reasonabl e expenditure of time and money.” Reyes , however, says no such thing. Reyes provides, “Whether a clas s is ascertainable is determined by examining (1) the class definiti on, (2) the size of the class, and (3) the means available for identif ying class members.” ( Id. at p. 1271.) More over, the portion of the opinion cited by the trial court states, contrary to the trial court’s finding, that “a plaintiff is not required at [the class certification] stage of the proceedings to establish the existence and identity of class members.” ( Id. at p. 1274, italics added.) Rather, “within the context of manageability, the issue is whether there exist sufficient means for identifying class members at the remedial stage.” ( Id. at p. 1275, italics omitted.)12 class. ( Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 706 ( Daar ); Reyes, supra, 196 Cal.App.3d at p. 1274 [“it is firm ly established a plaintiff is not required at this stage of the proceedings to establish the existence and identity of class members]; see also Astiana v. Kashi Co. (S.D.Cal. 2013) 291 F.R.D. 493, 500 [“If class actions could be defeated because member ship was difficult to ascertain atthe class certification stage, ‘there would be no such th ing as a consumer class ac tion.’ ”].) Nor must the representative plaintiff establish a means fo r providing personal notice of the action to individual class members. (See Evans v. Lasco Bathware, Inc. (2009) 178 Cal.App.4th 1417, 1422 [“A proponent at the class certification stage is not required to . . . identify a form of notice to obtain class certification.”].) Indeed, such a requirement would conflict with the liberal notice provisions contained in California Rules of Court, rule 3.766(f), which “is designed to dispense under certain circumstances with actual personal notice.” ( Haro v. City of Rosemead (2009) 174 Cal.App.4th 1067, 1 076.) Rule 3.766(f) states: “If personal notification is unreasonably expe nsive or the stake of individual class members is insubstantial, or if it appears that all members of the class cannot be notified personally , the court may order a means of notice reasonably calculated to apprise the class members of the pendency of the action-fo r example, publication in a newspaper or magazine; broadcasting on television, radio, or the Internet; or posting or distribution through a trade or professional association, union, or public interest group.” (Italics added.) Party America does not dispute that the re vised class definition is “sufficient to allow a member of that group to identify hims elf or herself as having a right to recover based on the description” set forth therein. ( Bartold, supra, 81 Cal.App.4th at p. 828.) Rather, Party America claims the trial court properly concluded there is no ascertainable class because plaintiff failed to show that there is a means fo r identifying class members. As a preliminary matter, we reject Party Am erica’s assertion that the trial court’s determination that there is no ascertainable cla ss was based plaintiff’s failure to show that13 there is a means for identifyi ng class members. As detailed above, the trial court explicitly (and improperly) based its deci sion on plaintiff’s “inability to clearly identify , locate and notify class members through a reas onable expenditure of time and money . . . .” (Italics added.) Because the tr ial court applied an erroneous legal standard in reaching its decision, re versal is required. ( Linder, supra, 23 Cal.4th at pp. 435-436.) In any event, plaintiff did propose a means of identifying class members. In response to Party America’s claim that the parties lack an adequate means for identifying class members, plaintiff pointed to sales receipts and credit card statements, noting that potential class members have the ability to present a re ceipt or credit card statement showing that a credit card transaction was entered in to on a specific date, at a specific store location, and the specific amount of the purchase, and th at such receipt or credit card statement “could [then] be cross-re ferenced with the reco rds of defendant to show the specific purchase amount, show a ZIP Code was requested associated with that specific purchase amount and the transaction records.” 7 A similar method for identifying poten tial class members was approved in Shurland v. Bacci Café & Pizzeria on Ogden, Inc. (N.D. Ill. 2010) 271 F.R.D. 139. There, the defendant argued th at the absence of records id entifying the class members by name required decertification of the class becaus e the class itself could not be ascertained and identified. ( Id. at p. 146.) In addressing the defe ndant’s argument, the district court observed that a “court should deny class certification where there is ‘simply no reasonable way of identifying potential class members,’ but ‘definiteness does not require

7 Contrary to Party America’s assertion, th e number of potential class members may be gleaned from Party America’s records, wh ich indicate that there were over 1 million credit card transactions at Party America’s Calif ornia retail stores during the class period. Because Party America employees were requi red to ask every customer for their ZIP Code, at this stage of the proceedings it can be assumed that each of those customers are members of the class.14 plaintiffs to identify speci fic class members.’ ” ( Ibid. ) The court concluded that there was a reasonable way to identify potential cla ss members in that case because “there is a log listing the receipts issued during the peri od in which [the defendant] was not in compliance with [the Fair and Accurate Credit Transactions Act’s] truncation requirement. The log includes partial credit card information for each transaction, the date it occurred, and the amount of the tran saction,” which could “be used to verify whether any individual who responds to class notice is in fact a memb er of the class.” ( Id. at pp. 146-147, italics added; cited with approval in In re Toys “R” Us - Delaware, Inc. - Fair & Accurate Credit Tr ansactions Act (FACTA) Litigation (C.D.Cal. 2013) 300 F.R.D. 347.) That is essentially what plaintiff proposes here. As Party America points out, in many of the cases cited by the parties, the defendant’s records provided a means for identifying class members; however, the absence of such records does no t preclude the finding of an ascertainable class. For example, in Daar , the plaintiff sued a taxi company on behalf of himself and all others similarly situated to recover as damages overcharges allegedly made by the taxi cab company for taxi cab services. ( Daar, supra, 67 Cal.2d at pp. 699-700.) The plaintiff alleged two causes of action, one on behalf of those who paid with script, and the second on behalf of those who paid with cash. ( Id. at p. 700.) The cause of action brought on behalf of those who paid with script a lleged “that the names and addresses of all purchasers and users of script books can be definitely ascer tained from defe ndant’s books and records.” ( Id. at p. 700.) The cause of action br ought on behalf of those who paid cash did not contain a si milar allegation. ( Id. at pp. 702-703.) Our Supreme Court found that each of the causes of acti on, including that brought on be half of those who paid with cash, showed “the existence of an ascertainable class.” ( Id. at pp. 716-717.). The court explained: “Defendant apparently fails to distinguish betwee n the necessity of establishing the existence of an ascertainable class and the necessity of identifying the individual members of such class as a prerequisite to a class suit. If the existence of an15 ascertainable class has been shown, there is no need to identify its individual members in order to bind all members by the judgment . The fact that the class members are unidentifiable at this point will not preclude a complete determination of the issues affecting the class. Presumably an accoun ting in the suit at bench will determine the total amount of the alleged overcha rges; any judgment will be binding on all the users of taxicabs within the prior four years. However, no one may recover his separate damages until he comes forward, identifies himself and proves the amount thereof.” ( Id. at p. 706, italics added.) 8 Weaver v. Pasadena Tournament of Roses Asso. (1948) 32 Cal.2d 833, cited by Party America, is inapposite. There, the plai ntiffs alleged that defendants advertised the sale of 7,500 tickets to the 1947 Rose Bowl , but closed the box o ffice after only 1,500 tickets were sold, even though the plaintiffs had been given numbered identification stubs assuring them of an opportun ity to purchase tickets. ( Id. at pp. 835-836.) The plaintiffs sought to represent a class of individuals w ho had waited in line but were denied tickets to the game. ( Id. at p. 838.) Our Supreme Court found that “[t]he causes of action of the several plaintiffs and the othe r unnamed aggrieved individuals are separate and distinct,” and “[t]hus, a decision favorable or adverse to these plaintiffs -- or any one of them -- could not determine the rights of any of the unnamed parties whom plaintiffs purport to represent.” ( Ibid. ) Accordingly, the court found that “these unknown parties are ascertainable only insofar as each may come fo rward and individually present proof of all the facts necessary to authorize a recovery in accordance with the merits of his particular case, and judgment in one would by no means be a judgment in any other. Plaintiffs here

8 Contrary to defendants’ assertion and the trial court’s statement, ascertainability was not presumed in Daar , and the complaint did not allege that each member of the class who paid cash was known to the defendant. As set forth above, the cause of action brought on behalf of those who paid with cash contained no such allegation. ( Daar, supra, 67 Cal.2d at pp. 702-703.)16 do not claim to represent an association or protective committee nor do they present any reasonable basis for ascertaining the members of the alleged cl ass for whom they seek to act in this litigation.” ( Id. at pp. 843-844.) 9 Unlike Weaver, here, plaintiff’s claims and those of the unnamed class members are not se parate and distinct such that each must individually present proof of all facts necessary to authorize a recovery. Moreover, plaintiff has presented a means fo r identifying class members. Sotelo v. Medianews Group, Inc. (2012) 207 Cal.App.4th 639 ( Sotelo ), also relied on by Party America and the trial court, is factually distinguishable. There, the plaintiff sought to certify a class of persons who worked “ ‘for or on behalf of’ ” various newspaper companies “ ‘in folding, inser ting advertising materials into, bagging, bundling, loading, and/or delivering said newspaper to its residential subscribers, . . . and whom no defendant has acknowl edged to be its employee in the performance of such work.’ ” ( Id. at p. 645.) The defendants’ “r ecords identified approximately 5,000 individuals who had signed a contract with a newspaper. However, because putative class members retained the assistance, with or without a contract, of others who remained unknown to [the defendants], the actual size of the proposed class [was] unknown.” ( Id. at p. 646.) In affirming the trial court’s conc lusion that the plaintiff failed to establish an

9 In Weaver, the court explained that while “the plai ntiffs, and perh aps others who waited in line and were refused tickets of admission, have an interest in a common question of law, that is, whethe r the statutory recovery is auth orized when an operator of a ‘place of public amusement or entertainment’ advertises 7,500 tickets for sale to the general public and then later, after selli ng only 1,500, closes the box office upon announcing that ‘all of the available tickets ha d been sold,” “the determination of such question in the present case w ould still leave to be litigated the right of any other person to recover on his statutory claim in the lig ht of whether he, in reliance upon the advertised sale, stood in line, received an identification stub, was denied tickets before the promised 7,500 had been sold, presented hi mself at the Rose Bowl as a ‘sober, moral person,’ demanded admission, tendered the price, and wa s refused, entitling him "to recover . . . his actual damages” as well as the fixed statutory penalty of $100.” ( Weaver, supra, 32 Cal.2d at pp. 838-839.) Such is not the case here.17 ascertainable class, the Court of Appeal agre ed with the trial court’s observation that “ ‘we are not faced with a sp eculative administrative burden bu t (as the class is defined) an actual obstacle to identifying persons who contend that they folded and bagged papers during the class period, for one or more defendants: a lack of objective evidence (such as business records) that indica te class membership.’ ” ( Id. at pp. 648-649.) Unlike Sotelo, here, there exists objective evidence indicati ng class membership, na mely sales receipts and/or credit card statements th at can be cross-referenced w ith Party America’s records to determine whether the customer’s ZI P Code was in fact recorded.
In Sotelo , the court goes on to state that where, as in that case, “the proposed class contains an unknown number of members who have no recorded relationship with respondents, a serious notice issue results. The theoretical ability to self-identify as a member of the class is useless if one never receives notice of the action.” ( Sotelo, supra, 207 Cal.App.4th at p. 649.) To the extent that Sotelo can be read as requiring a plaintiff to establish a means of providing personal notice of the action to prospective class members at the certification stage ( id. at pp. 648-649), we respectfully disagree. As previously discussed, we view any such re quirement as inconsistent with the liberal notice provisions of California Rules of Court, rule 3.766. We likewise disagree with Sotelo to the extent it suggests thata class is not ascertainable where, as here, prospective class members must come forward and establish they are members of the class. It is well established that “ ‘a class action is not inap propriate simply because each member of the class may at some point be required to make an individual showing as to his or her eligibility for recovery or as to the amount of his or her damages.’ [Citation.]” ( Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 333 .) Indeed, the salient issue is “whether there exis t sufficient means for id entifying class members at the remedial stage ” ( Reyes, supra, 196 Cal.App.3d at pp. 1274-1275, italics added & omitted), not at the class certification or notice stages.18 Finally, we find the United States Court of Appeals for the Third Circuit’s recent decision in Carrera v. Bayer Corp. (3d Cir. 2013) 727 F.3d 300 ( Carrera ), forwarded to us by Party America as “new authority,” read ily distinguishable. In that case, the Third Circuit found that a putative class of purcha sers of the defendant’s diet supplement was not ascertainable because ther e was insufficient ev idence to show th at retailer records could be used to identify class members. ( Id. at pp. 308-309.) The court rejected the plaintiff’s proposal to use affidavits s ubmitted by putative class members because this process deprived the defendant of the oppo rtunity to challenge class membership. ( Id. at p. 309.) Additionally, the court held that “the re is a significant likelihood their recovery will be diluted by fraudulent or inaccurate clai ms,” and that absent class members could then argue that they are not bound by a judgment because the named plaintiff did not adequately represent them. ( Id. at p. 310.) As a preliminary manner, Carrera has been roundly criticized by district courts within the Ninth Circuit

. “It appears that pursuant to [ Carrera ] in any case where the consumer does not have a verifiable record of its purchase, such as a receipt, and the manufacturer or seller does not keep a record of buyers, [ Carrera ] prohibits certification of the class. While [ Carrera ] may now be the law in the Thir d Circuit, it is not currently the law in the Ninth Circuit. [Citations.] In this Circu it, it is enough that the class definition describes ‘a set of common characteristics sufficie nt to allow’ a prospective plaintiff to ‘identify himself or herself as having a right to recover based on the description.’ [Citation.]” (McCrary v. Elations Co. , LLC (C.D.Cal. Jan. 13, 2014, EDCV 13-00242 JGB (OPx)) 2014 U. S.Dist.LEXIS 8443; see also Forcellati v. Hyland’s, Inc. (C.D.Cal. Apr. 9, 2014, CV 12-1983-GHK (MRWx)) 2014 U.S.Dist.LEXIS 50600; Werdebaugh v. Blue Diamond Growers (N.D.Cal. May 23, 2014, No. 12-CV-2724-LHK) 2014 U.S.Dist.LEXIS 71575; Brazil v. Dole Packaged Foods,
LLC (N.D.Cal. May 30, 2014, No. 12-CV-018 31-LHK) 2014 U.S. Dist.LEXIS 74234; In re Conagra Foods, Inc. (C.D.Cal. Aug. 1, 2014, No . CV 11-05379 MMM (AGRx)) 201419 U.S.Dist.LEXIS 116103.) In any event, unlike Carrera, here, customers do have a verifiable record of the transaction in ques tion, namely a sales receipt or credit card statement, which can be cross -referenced with Party Americ a’s records to determine if the customer’s ZIP Code was recorded. In sum, the trial court applied impr oper criteria in determining there was no ascertainable class. Where, as here the cl ass (as currently defined) describes a set of common characteristics sufficient to allow a member of that group to identify himself or herself as having a right to recover based on the description, and plaintiff has proposed an objective method for identifying class me mbers when that id entification becomes necessary, there exists an ascertainable class. ( Bartold, supra, 81 Cal.App.4th at p. 828; Hicks, supra, 89 Cal.App.4th at p. 915.) DISPOSITION The order striking and dismissing the class allegations and denying class certification is reversed, and the matter is rema nded to the trial court for consideration of whether class certification is proper given our determination that there exists an ascertainable class. Plaintiff shall recover he r costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

BLEASE , Acting P. J.

We concur:

HULL , J.

MURRAY , J.