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NOT TO BE PUBLISHED 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 This opinion has not been certified for publication 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 order denying class certification. Plaintiff 

sued defendants Amscan Holdings, Inc., and PA Acquisition, doing business as Party 

America (collectively Party America) on behalf of herself and similarly situated 

individuals, alleging Party America violated Civil Code1 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 trial court found that plaintiff’s proposed class of 

“[a]ll persons in California from whom Defendant requested and recorded a ZIP code in 

 

1 Further undesignated statutory references are to the Civil Code. 
2 

conjunction with a credit card purchase transaction 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 class . . . was not ascertainable based upon the 

finding that each individual class member was not specifically identifiable 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 court applied an erroneous legal standard in 

determining the proposed class is not ascertainable and erred in its conclusion. 

Accordingly, we shall reverse and remand for further proceedings consistent with this 

opinion. 

FACTUAL AND PROCEDURAL 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 recording personal identification information, 

namely ZIP Codes, from its credit card customers at the point-of-sale violated section 

1747.08, which prohibits persons and businesses from requesting 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 complaint 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 California 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 operative first amended complaint. 
3 

County using a credit card. During the transaction, 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 plaintiff’s ZIP Code into an electronic cash register. 

 As to the class, the first amended complaint alleges that the “lawsuit is brought on 

behalf of an ascertainable statewide class consisting of all persons in California from 

whom [Party America] requested and recorded personal identification information in 

conjunction with a credit card transaction . . . .”4 The members of the class are so 

numerous that joinder of all members is impracticable, and common questions of law and 

fact predominate, including: “whether each Class member engaged in a credit card 

transaction with [Party America]”; “whether [Party America] requested the cardholder to 

provide personal identification information and recorded [such 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 motion for judgment on the pleadings on the 

sole ground that a cardholder’s ZIP Code does not constitute “personal identification 

information” within the meaning of section 1747.08. The trial court granted the motion, 

plaintiff appealed, and we reversed, citing our Supreme 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 identification information’ as that phrase 

is used in section 1747.08” and that “requesting 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 entity in which Defendant has a 

controlling interest, and the legal representatives, 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 complaint (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 certification 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 period 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 identifying 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 America 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-sale, regardless of the method of payment. 

A ZIP Code prompt would appear on the register 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 Party’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 with the corresponding purchase amount. 
5 

 There were approximately 1 million credit card transactions at Party America’s 

California retail stores from June 2007 through October 13, 2010. Party America did not 

monitor the number of unique credit card transactions in its stores; thus, the 1 million 

figure necessarily includes transactions made by repeat customers. 

 Party America does not have documents or a database identifying the names or 

addresses of those who paid with credit cards or those who provided ZIP Codes. The 

sales receipt issued by Party America to plaintiff 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 presented the following revised class definition 

in response to Party America’s assertion that the class definition set 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) persons who utilized a credit card issued for 

business purposes; (ii) persons 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 shipping, delivery, servicing, or 

installation of the purchased merchandise, or for special orders; (iii) officers and directors 

of Defendant and of its corporate parents, subsidiaries, affiliates or any 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 motion on the basis of the revised definition. 

 In addition, plaintiff disputed Party America’s claim that she must establish a 

means for identifying or locating potential members 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 the 
6 

revised class definition satisfied the ascertainability requirement because “[a]ny 

individual who looks at that class definition will know whether or not they’re in that class 

and can confirm through objective evidence that they are, 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 pointed to credit card statements and sales receipts. 

According to plaintiff, potential class members have the ability to present a receipt or 

credit card statement showing a credit card transaction was entered into on a specific 

date, at a specific store location, 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 requested 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 and 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 argued 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 identify 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-identify. Otherwise, there is no 

ascertainable class . . . .” “To suggest that ascertainability is achieved by the speculative 

assertion that the supposed class members may 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 action so that they may then ‘self-identify’ 

as . . . class members.” 
7 

D. The Trial Court’s Ruling on the Motion for an Order Denying Class Certification 

 The trial court agreed with Party America 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 expenditure 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 allows purported class members to self-identify without first 

establishing an ascertainable class.” 

 In concluding plaintiff failed to establish the existence of an ascertainable class, 

the trial court reasoned: “Defendants’ discovery responses state they did not retain 

customers’ names and that they cannot indentify customers from whom they obtained zip 

codes during credit card transactions. Plaintiff has not challenged those discovery 

responses. In fact, plaintiff’s own discovery responses acknowledge that 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 circumstances, 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 individuals who might have a claim). [¶] Furthermore, discovery 

has been ongoing for months, and at the initial hearing on this motion . . . , the parties 

agreed that additional discovery was not contemplated and would not assist the court in 

deciding this motion. In light of the foregoing and the authorities cited above, plaintiff’s 

inability to clearly identify, locate and notify class members through a reasonable 

expenditure of time and money . . . bars her from litigating this case . . . .” 
8 

 The trial court did not address the parties’ arguments as to whether a class action 

was a superior means of proceeding. 

DISCUSSION 

 Plaintiff contends that the trial court erred in concluding that she failed to establish 

an ascertainable class because “each individual class member was not specifically 

identifiable from [Party America’s] records, and thus, notice . . . cannot be directly 

provided to class members.” We agree. 

A. Section 1747.08 

 Section 1747.08 prohibits merchants from requesting and recording “personal 

identification information” as part of a credit card transaction. (Civ. Code, § 1747.08, 

subd. (a)(2).) A cardholder’s ZIP Code “constitutes ‘personal identification information’ 

as that phrase is used in section 1747.08,” and “requesting and recording a cardholder’s 

ZIP Code, without more, violates the [statute].” (Pineda, supra, 51 Cal.4th at pp. 527-

528.) “Any person who violates [section 1747.08] shall be subject to a civil penalty not 

to exceed two hundred fifty dollars ($250) for the first violation and one thousand dollars 

($1,000) for each subsequent violation, to be assessed and collected 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 person paying with a credit card who brought the 

action . . . .” (§ 1747.08, subd. (e).) 

B. Rules Governing Class Actions 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.Supp.2d 1212, 1215-1216; Yeoman v. 

Ikea U.S. West, Inc. (S.D.Cal. May 4, 2012, No. 11cv701 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. Accordingly, 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.) “Drawing on the language of Code of Civil Procedure section 

382 and federal precedent, [our Supreme Court] ha[s] articulated clear requirements for 

the certification of a class. The party advocating class treatment must demonstrate the 

existence of an ascertainable and sufficiently numerous class, a well-defined community 

of interest, and substantial benefits from certification that render proceeding as a class 

superior to the alternatives.” (Brinker Restaurant Corp. v. Superior Court (2012) 53 

Cal.4th 1004, 1021.) The only element at issue here is the existence of an ascertainable 

class. The meaning and purpose of that element are detailed in our discussion below. 

 “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. The denial of certification 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 citation of unpublished opinions of California 

state courts, with certain limited exceptions. (Cal. Rules of Court, rule 8.1115(a).) We 

shall disregard the unpublished superior court opinions cited and relied upon by plaintiff. 
10 

or (2) erroneous legal assumptions were made [citation]’ [citation]. Under this standard, 

an order based upon improper criteria or incorrect assumptions calls for reversal ‘ “even 

though there may be substantial evidence to support the court’s order.” ’ [Citations.] 

Accordingly, we must examine the trial court’s reasons for denying class certification. 

‘Any valid pertinent reason stated will be sufficient to uphold the order.’ [Citation.]” 

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

C. The Trial Court Erred in Finding the Class Is Not Ascertainable

 The trial relied on “plaintiff’s inability to clearly identify, locate and notify class 

members through a reasonable expenditure 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 unnamed 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.App.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 achieved ‘by defining the class in 

terms of objective characteristics and common transactional facts making the ultimate 

identification of class members possible when that identification becomes necessary.’ ” 

(Bomersheim v. Los Angeles Gay & Lesbian Center (2010) 184 Cal.App.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 examining (1) the class 

definition, (2) the size of the class, and (3) the means available for identifying class 
11 

members” at the remedial stage (Reyes v. Board of Supervisors, supra, 196 Cal.App.3d 

at pp. 1271, 1274-1275 (Reyes).)6

 “While often it is said that ‘[c]lass members are “ascertainable” where they may 

be readily identified without unreasonable expense 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 ascertainable 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 represent.’ [Citation.] . . . ‘Otherwise, it is not 

possible to give adequate notice to class members 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 class members to establish the existence 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 controlled; and (2) the members can be located and 

notified of the action through reasonable expenditure of time and money.” Reyes, 

however, says no such thing. Reyes provides, “Whether a class is ascertainable is 

determined by examining (1) the class definition, (2) the size of the class, and (3) the 

means available for identifying class members.” (Id. at p. 1271.) Moreover, 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 firmly 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 membership was difficult to ascertain at the class certification stage, 

‘there would be no such thing as a consumer class action.’ ”].) Nor must the 

representative plaintiff establish a means for 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, 1076.) Rule 3.766(f) states: 

“If personal notification is unreasonably expensive or the stake of individual class 

members is insubstantial, or if it appears that all members of the class cannot be notified 

personally, the court may order a means of notice reasonably calculated to apprise the 

class members of the pendency of the action-for example, publication in a newspaper or 

magazine; broadcasting on television, radio, or the Internet; or posting or distribution 

through a trade or professional association, union, or public interest group.” (Italics 

added.) 

 Party America does not dispute that the revised class definition is “sufficient to 

allow a member of that group to identify himself 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 for identifying class members. 

As a preliminary matter, we reject Party America’s assertion that the trial court’s 

determination that there is no ascertainable class was based plaintiff’s failure to show that 
13 

there is a means for identifying class members. As detailed above, the trial court 

explicitly (and improperly) based its decision on plaintiff’s “inability to clearly identify, 

locate and notify class members through a reasonable expenditure of time and 

money . . . .” (Italics added.) Because the trial court applied an erroneous legal standard 

in reaching its decision, reversal 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 receipt or credit card 

statement showing that a credit card transaction was entered into on a specific date, at a 

specific store location, and the specific amount of the purchase, and that such receipt or 

credit card statement “could [then] be cross-referenced with the records 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 potential 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 that the absence of records identifying the class members by 

name required decertification of the class because the class itself could not be ascertained 

and identified. (Id. at p. 146.) In addressing the defendant’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, the number of potential class members may be 

gleaned from Party America’s records, which indicate that there were over 1 million 

credit card transactions at Party America’s California retail stores during the class period. 

Because Party America employees were required 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 specific class members.’ ” (Ibid.) The court concluded that there 

was a reasonable way to identify potential class members in that case because “there is a 

log listing the receipts issued during the period 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 transaction,” which could “be used to verify 

whether any individual who responds to class notice is in fact a member of the class.” 

(Id. at pp. 146-147, italics added; cited with approval in In re Toys “R” Us - Delaware, 

Inc. - Fair & Accurate Credit Transactions 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 not 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 alleged “that the names and addresses of all 

purchasers and users of script books can be definitely ascertained from defendant’s books 

and records.” (Id. at p. 700.) The cause of action brought on behalf of those who paid 

cash did not contain a similar allegation. (Id. at pp. 702-703.) Our Supreme Court found 

that each of the causes of action, including that brought on behalf 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 between 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 an 
15 

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 accounting in the suit at bench will determine the total 

amount of the alleged overcharges; 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 plaintiffs alleged that defendants advertised the 

sale of 7,500 tickets to the 1947 Rose Bowl, but closed the box office after only 1,500 

tickets were sold, even though the plaintiffs had been given numbered identification stubs 

assuring them of an opportunity to purchase tickets. (Id. at pp. 835-836.) The plaintiffs 

sought to represent a class of individuals who 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 other 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 forward 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 class 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 separate and distinct such that each must 

individually present proof of all facts necessary to authorize a recovery. Moreover, 

plaintiff has presented a means for 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, inserting advertising materials into, bagging, 

bundling, loading, and/or delivering said newspaper to its residential subscribers, . . . and 

whom no defendant has acknowledged to be its employee in the performance of such 

work.’ ” (Id. at p. 645.) The defendants’ “records 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 conclusion that the plaintiff failed to establish an 

 

9 In Weaver, the court explained that while “the plaintiffs, and perhaps others who 

waited in line and were refused tickets of admission, have an interest in a common 

question of law, that is, whether the statutory recovery is authorized 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 selling only 1,500, closes the box office upon 

announcing that ‘all of the available tickets had been sold,” “the determination of such 

question in the present case would still leave to be litigated the right of any other person 

to recover on his statutory claim in the light 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 himself at the Rose Bowl as a ‘sober, moral 

person,’ demanded admission, tendered the price, and was 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 agreed with the trial court’s observation that 

“ ‘we are not faced with a speculative administrative burden but (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 indicate class membership.’ ” (Id. at pp. 648-649.) Unlike Sotelo, 

here, there exists objective evidence indicating class membership, namely sales receipts 

and/or credit card statements that can be cross-referenced with Party America’s records to 

determine whether the customer’s ZIP 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 requirement 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 that a 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 inappropriate 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 exist sufficient means for identifying 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,” readily distinguishable. In that case, the Third 

Circuit found that a putative class of purchasers of the defendant’s diet supplement was 

not ascertainable because there was insufficient evidence to show that retailer records 

could be used to identify class members. (Id. at pp. 308-309.) The court rejected the 

plaintiff’s proposal to use affidavits submitted by putative class members because this 

process deprived the defendant of the opportunity to challenge class membership. (Id. at 

p. 309.) Additionally, the court held that “there is a significant likelihood their recovery 

will be diluted by fraudulent or inaccurate claims,” 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 Third Circuit, it is not currently 

the law in the Ninth Circuit. [Citations.] In this Circuit, it is enough that the class 

definition describes ‘a set of common characteristics sufficient 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-01831-LHK) 2014 U.S.Dist.LEXIS 74234; In 

re Conagra Foods, Inc. (C.D.Cal. Aug. 1, 2014, No. CV 11-05379 MMM (AGRx)) 2014 
19 

U.S.Dist.LEXIS 116103.) In any event, unlike Carrera, here, customers do have a 

verifiable record of the transaction in question, namely a sales receipt or credit card 

statement, which can be cross-referenced with Party America’s records to determine if 

the customer’s ZIP Code was recorded. 

 In sum, the trial court applied improper criteria in determining there was no 

ascertainable class. Where, as here the class (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 members when that identification 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 remanded to the trial court for consideration of 

whether class certification is proper given our determination that there exists an 

ascertainable class. Plaintiff shall recover her costs on appeal. (Cal. Rules of Court, rule 

8.278(a)(1), (2).) 

 BLEASE , Acting P. J. 

We concur: 

 HULL , J. 

 MURRAY , J.