Filed 2/6/15 Siechert & Synn v. Apple, Inc. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

SIECHERT & SYNN et al.,

Plaintiffs and Appellants,

v.

APPLE INC.,

Defendant and Respondent.

 H036402

 (Santa Clara County

 Super. Ct. No. 1-05-CV-045719)

Plaintiffs Siechert & Synn dba Techsource, Joe Weingarten dba Weingarten 

Gallery, Pamela Rogers dba Horizon Resources and Horizon Computer Resources,

Omnitech Computer, and Computer Outlet appeal from the denial of their motion to 

certify a class of “Apple Authorized Specialists” in their action against defendant Apple 

Inc. Plaintiffs were formerly engaged in the business of selling Apple computers and 

other Apple products. They sued Apple, alleging that the company’s decision to open its 

own retail stores was part of a “fraudulent scheme and plan” to drive its independent 

resellers out of business. Plaintiffs asserted that Apple concealed this scheme and 

induced them to continue doing business with the company by assuring them that its own 

stores would operate on a “level playing field” with theirs. They alleged among other 

things that Apple favored its own stores to plaintiffs’ detriment by “deliberately” 

withholding new products from resellers while making those products “readily available” 
2

to its own stores and by “siphoning off” the resellers’ customers. Plaintiffs also alleged 

that Apple gave “‘secret rebates’ ” to favored resellers such as CompUSA and Fry’s but 

not to Specialists. 

The trial court’s denial of plaintiffs’ class certification motion was based on 

findings that they failed to show that common questions predominated over individual 

issues or that a class action would be superior to individual lawsuits. We affirm the 

order.

I. Background

Historically, Apple sold its products to consumers mainly through independent 

resellers. These included large national chains like CompUSA, regional chains like 

Fry’s, and smaller establishments like those of the plaintiff Specialists. 

Specialists are a subset of the larger group of Apple’s authorized resellers. They 

are so named because they specialize in the sale and service of Apple computers. 

Specialists sign annual Specialist confirmation letters in addition to the authorized 

reseller agreements that all Apple resellers sign. 

Specialists comprise a diverse group of small to medium-sized businesses

pursuing various business plans and targeting different customers in markets across the 

country. Some Specialists focus on retail sales. Others serve business customers only. 

Some target specific industries like advertising or entertainment. Some Specialists have 

multiple stores while others have only a single storefront. Some have no storefront at all. 

Those with storefronts operate in a variety of different locations. Some are in high-traffic 

shopping malls or on prominent shopping streets, while others are in places that attract 

few to no casual browsers. Some Specialists’ stores are just blocks away from an Apple

store. Others are located in areas with multiple Apple stores. Others are hundreds of 

miles from the nearest Apple store. Some Specialists keep millions of dollars of product 
3

in inventory. Others (like plaintiff Horizon) carry little or no inventory, preferring to 

purchase products when their customers place orders. 

Apple’s share of the United States personal computer market declined 

dramatically in the 1990’s, even after the company started selling computers online in the 

late 1990’s. In an effort to reverse the decline, Apple decided to supplement its reseller 

and online sales channels with its own retail stores. Its goal was to increase market share 

by convincing the 95 percent of United States consumers who did not already own Apple 

computers to buy them. The advertising slogan that proclaimed the May 2001 opening of 

the first Apple stores announced this goal: “‘5 down. 95 to go.’ ”

Plaintiffs filed this action in February 2005 on behalf of two groups, a consumer 

group and a resellers’ group. This appeal concerns the resellers’ group.

1

Plaintiffs filed 

their Eighth Amended Complaint in February 2009. It broadly defined the reseller class 

to include “[a]ny Apple reseller in the United States who sold at retail Apple computer 

products, Apple service, AppleCare service contracts, and/or repair services directly or 

indirectly at any time between January 1, 1995, through the present . . . .” The complaint

asserted eight causes of action on behalf of the reseller class: (1) breach of contract, (2) 

violation of the Unfair Competition Law (UCL; Bus. & Prof. Code, § 17200 et seq.),

2

(3) 

misappropriation of trade secrets, (4) fraud and deceit, (5) breach of the covenant of good 

faith and fair dealing, (6-7) violations of the Cartwright Act (later dismissed without 

prejudice), and (8) violation of the Unfair Practices Act (UPA; § 17000 et seq.). 

The complaint alleged the following facts. In 1997, Apple began developing plans 

to open its own retail stores “with the specific intent” to drive its independent resellers 

out of business. Because there was a limit to the number of stores it could open each year

 

1 We decided the consumer group’s separate appeal in the related case of Branning 

et al. v. Apple Inc. (H036343). 

2

Subsequent statutory references are to the Business and Professions Code unless 

otherwise noted.
4

and because its resellers were an important source of income, Apple wanted to continue 

its relationship with its resellers until it could establish its own chain of stores. Apple

knew its resellers would be concerned about the impact of the Apple stores on their own 

sales, so it “devised a fraudulent scheme and specific, uniform representations to be made 

to all [r]esellers” to induce them to continue doing business with Apple. The “series of 

false representations” or “mantra” that Apple allegedly developed included statements (1) 

that the purpose of the Apple stores was to increase the company’s share of the computer 

market and not to take sales away from resellers; (2) that the stores would be

“‘showcase’ stores” and have “a ‘billboard effect’” that would increase resellers’ sales; 

(3) that “‘[a]ll ships will rise with the tide’” (meaning that resellers’ sales would rise 

along with the retail stores’ sales); and (4) that Apple would ensure “ ‘a level playing 

field’” (meaning that it “would not give any special preferences to the Apple retail stores 

that would disadvantage the independent Resellers”). 

Plaintiffs alleged that Apple distributed a bulletin to resellers before the first Apple

store opened in May 2001. It contained “specific assurances” that the Apple stores

“would be stocked the same as other [r]esellers so as not to have any ‘priority on product 

supply or delivery,’ that they would not get demo units other than on the schedule of 

other [r]esellers, and that the Apple retail stores would not have better pricing from Apple 

than the pricing given by Apple to the [r]esellers.” Plaintiffs alleged that Apple repeated 

these assurances in press releases and at store openings, in various meetings with 

resellers, at a 2004 conference, and at the company’s 2005 annual meeting. The resellers 

reasonably relied on the representations, continued their relationships with the company, 

and continued to invest millions of dollars in their businesses to promote sales of Apple 

products. Plaintiffs (with the exception of Siechert & Synn, which dismissed its fraud 

cause of action) and the reseller class suffered “severe monetary damages” as a direct 

result of Apple’s intentional misrepresentations and concealment. 
5

Plaintiffs alleged that as part of its scheme to drive them out of business, Apple (1) 

located its retail stores in close proximity to successful resellers’ stores “for the specific 

purpose of siphoning off” their customers; (2) intentionally failed to provide resellers 

with Apple merchandise, goods, and services and support for Apple products sold and/or 

serviced by the resellers; (3) deliberately withheld new products from resellers while 

making them available to the public through the Apple stores; (4) misrepresented to the 

resellers that new products were unavailable while providing them to the Apple retail and 

online stores; (5) “bypassed” resellers and used resellers’ confidential customer 

information “to contact, solicit and deal directly with” resellers’ customers and prospects; 

(6) failed to properly honor warranties sold by resellers; (7) “consistently failed to 

acknowledge and respond” to critical questions from the resellers; and (8) failed and 

refused to provide proper credits to resellers when credits were clearly due to them. 

Plaintiffs also alleged that Apple misrepresented the nature and quality of the equipment 

it sold to resellers, shipped defective replacement parts and/or equipment to them, and 

failed to appropriately reimburse them for warranty work. Plaintiffs alleged that they and 

the reseller class were “damaged in an amount to be proven . . . at trial, but in an amount 

in excess of $25,000.00.” 

The complaint alleged that Apple also engaged in unfair practices by (1) giving 

favored resellers like CompUSA and Fry’s “secret discounts, allowances, rebates and 

development funds” not offered to other resellers; (2) selling service contracts to 

CompUSA at a substantial discount; (3) providing CompUSA with Apple-paid 

employees; (4) accepting defective products from Apple stores and from preferred 

resellers but not from other resellers; and (5) providing cooperative advertising 

allowances, sales promotions, and market development funds to Apple stores and to 

preferred resellers but not to other resellers. Plaintiffs alleged that these secret rebates 

gave the favored resellers a major pricing advantage that had the inherent tendency to 
6

destroy competition and caused plaintiffs injury in an amount not yet ascertained but in 

excess of $25,000. 

In November 2009, plaintiffs moved to certify a much narrower class than the allresellers class their Eighth Amended Complaint defined. They defined this narrower 

class as “‘[a]ll persons in the United States who were Apple Authorized Specialists on 

January 1, 2001, or became Specialists between that date and January 1, 2004.’”

Plaintiffs’ memorandum of points and authorities focused on Apple’s alleged secret plot 

to put them out of business and on the “scripted misrepresentations” that it allegedly 

made to convince them to continue doing business with Apple until it could establish its

own stores. Plaintiffs argued that “Apple’s plan, its execution of that plan, its uniform 

omissions and misrepresentations to the class and the legal and factual effect of its 

conduct on the Specialists” could be proven with common evidence and that “[e]ven 

damages . . . can be computed on a classwide basis.” 

Plaintiffs argued with respect to their contract causes of action that Specialists 

signed form contracts and that Apple’s common “plan to destroy the Specialists” targeted 

the entire class and deprived them of the benefits of their contracts. They asserted that 

“[w]hether Apple unfairly favored its own stores in allocating new product” was “one of 

the many factual issues shared by the class.” 

Plaintiffs argued with respect to their fraud cause of action that the element of 

reliance was no impediment to class treatment because reliance would be presumed “in 

light of the uniformity and materiality of Apple’s omissions and representations to the 

class.” They claimed that whether Apple gave certain stores a pricing advantage over 

Specialists in violation of the UPA could also be established by proof common to the 

class.

Six of the seven plaintiffs submitted declarations in support of the motion. Several 

of their lawyers, their litigation consultant Thomas Santos (a former Apple authorized 
7

reseller who was pursuing an individual lawsuit against Apple), and their damages expert 

D. Paul Regan also provided declarations. 

Apple opposed the motion, arguing among other things that class certification 

could not be based on an alleged “scheme” to drive Specialists out of business because 

there was no substantial evidence that any such scheme ever existed. Apple pointed out 

that plaintiffs’ reliance on an analysis that a consulting firm prepared before the decision 

was made to move forward with the retail stores project did not evidence Apple’s state of 

mind and did not in any event establish a plan to put the resellers out of business. It 

submitted evidence controverting plaintiffs’ contention that its plan was to “cannibalize” 

its resellers’ sales, noting that any such plan would have doomed the project. “This is 

common sense,” Apple argued. “[I]t would make no sense for Apple to incur the expense 

of opening retail stores in locations like 5th Avenue in New York or Michigan Avenue in 

Chicago just to sell to the same customers who otherwise would have bought from the 

Specialists.” 

Apple declared unequivocally that no scheme to put Specialists out of business

ever existed. It submitted business plans reflecting its continuing commitment to support

its resellers in general and Specialists in particular.

Apple also presented evidence that Specialists as a group have succeeded since 

2001, as shown by the substantial growth of the company’s sales to the group since the 

Apple stores opened. Many individual Specialists saw their sales of Apple products

double or triple or more since 2001. Twelve of those Specialists submitted declarations 

describing their businesses’ remarkable success since 2001, which many attributed in part 

to the increase in brand awareness that resulted from the opening of the Apple stores.

Apple’s expert economist Michael Keeley, Ph.D. explained that Apple had no incentive 

to undermine Specialists or other resellers. Nor did it have any incentive to invest 

billions to launch retail stores that would do no more than make sales that Specialists and 

other resellers would have made anyway. It is a “common misconception” that 
8

manufacturers earn more profit by taking over retailing from their independent resellers. 

In fact, the opposite is true. Multiple retail channels allow Apple to serve a broader range 

of customers than it could serve through a single channel like the Apple stores. Keeley 

pointed out that Apple did not need to resort to the actions that plaintiffs alleged. If a 

Specialist were damaging Apple’s brand image, Apple could end its relationship with that 

Specialist simply by terminating its contractual relationship. It would not be in Apple’s 

interest to resort to the actions that plaintiffs alleged because those actions would harm its 

customers and its reputation. 

Apple urged as a second basis for denying plaintiffs’ motion that individual rather 

than class issues would predominate. It addressed plaintiffs’ deception-based claims

first, arguing that courts have certified fraud claims for class treatment “only in 

exceedingly rare cases where there was clear evidence that defendants made identical 

representations to each class member,” which was not the case here. Apple emphasized 

the absence of evidence that any Specialist received any of the internal Apple documents 

that plaintiffs mischaracterized and purported to rely on. It noted plaintiffs’ failure to 

identify any uniform oral misrepresentations. It submitted evidence showing wide 

variation in what (if anything) various Specialists claimed they were told and how they 

interpreted those statements. 

Apple argued that individual issues would also predominate with respect to 

reliance on the alleged fraud. It maintained that plaintiffs Siechert & Synn and 

Weingarten could not prove reliance because statements that Tom Siechert and 

Weingarten made and broadcasted to their fellow Specialists as early as 2001 established 

that neither had believed the alleged misrepresentations. It pointed to Seichert’s 

deposition testimony that he was “sure” there were other Specialists who also disbelieved

“what we were being told.” 

Apple also submitted evidence that Rogers and Omnitech’s Frank O’Neil both

admitted that they would have become Specialists whether or not Apple promised them 
9

“priority allocation.” Both continued to sign Specialist contracts even after they 

assertedly concluded that Apple lied to them about its retail stores. Apple produced

evidence that other named plaintiffs and many other Specialists continued to sign 

Specialist agreements after January 2004, when plaintiffs claimed the company’s “true 

intention” to put them out of business was revealed. 

Apple argued that plaintiffs’ fraud claim also raised “inherently individualized” 

statute of limitations issues. The complaint was filed on February 17, 2005. In 2008, the 

trial court ruled that the fraud claims were barred by the three-year statute of limitations

(Code Civ. Proc., § 338, subd. (d)) unless plaintiffs could establish delayed discovery. 

Apple argued that the 2008 ruling applied to all proposed class members, who would 

have to prove when and how they discovered the alleged fraud and establish that they 

could not have discovered it earlier. 

Apple argued that plaintiffs’ good faith and fair dealing cause of action also raised 

predominately individual issues. Plaintiffs asserted that their Specialist contracts 

promised them “‘priority product allocation’ ” and that Apple’s alleged scheme to 

“‘starve’ ” them of new products deprived them of the benefit of those Specialist 

contracts. Apple presented evidence that the agreement that every reseller signs has 

always given Apple the right to allocate inventory on a basis that it in its sole discretion 

deems equitable. It noted that “priority product allocation” was not defined in any of the 

documents that plaintiffs relied on. It submitted evidence that each named plaintiff 

interpreted those words quite differently. Apple argued that in these circumstances, 

determining the meaning of the phrase would require the court to consider extrinsic 

evidence of what each Specialist was told and what documents each received. Even if 

plaintiffs had evidence that there was a scheme to starve them of new products, “each 

class member still would have to prove that it was impacted” by the scheme. To support 

its claim that this could not be done by class proof, Apple submitted evidence showing 
10

that “constrained”3product was allocated to Specialists on an individual basis, with 

various considerations affecting how much a particular Specialist received. For example, 

only some Specialists participate in a program that allows them to receive certain 

products prior to release. Specialists in higher tiers of the program can be provided with 

product before Apple supplies those in the lower tiers. And not all Specialists are 

affected by every product shortage because not all of them order every constrained 

product. Specialists that target businesses, for example, typically focus on computers, not 

iPods. 

Apple argued that plaintiffs’ own experiences confirmed that individual issues 

would predominate with respect to their good faith and fair dealing claim. It produced 

evidence that Omnitech and Weingarten had access to constrained product at the same 

time as the closest Apple retail stores, which were 40 to 70 miles away, and that it 

shipped constrained product to Omnitech and Weingarten even before it filled all of the 

nearby retail stores’ orders. It also presented evidence that Specialists experienced delays 

in receiving product for reasons that had nothing to do with Apple’s allocation decisions. 

A former Omnitech employee testified that Omnitech experienced delays because of its 

credit problems. Other Specialists ordered their products from third-party distributors,

who made their own allocation decisions. Thus, Apple argued, resolving allocationrelated claims would require inquiry into facts unique to each Specialist and unique to 

each order. These would include when the order was placed, what quantity was ordered, 

whether it was ordered from Apple or from an independent distributor, when it was 

received, whether the Specialist had the cash or credit to pay for the product, whether any 

delay was caused by circumstances that had nothing to do with the alleged scheme, 

whether any Apple retail stores in the Specialist’s market had access to the product when 

 

3 A product is “constrained” when the orders for that product exceed Apple’s 

available inventory. During times of product constraint, every channel (including 

Apple’s retail store channel) wants more of the constrained product than it receives. 
11

the Specialist did not, and whether the Specialist would have been able to sell more 

product had it received more. Apple maintained that these individual issues would 

“overwhelm” any common issues. 

Apple next addressed plaintiffs’ secret rebates claim, asserting that it was unaware 

of “a single case certifying this kind of claim for class treatment.” Apple argued that 

such claims are not amenable to class treatment because each plaintiff must prove 

competitive injury. Specialists who were not located near any of the resellers that Apple 

allegedly favored or who did not compete with those resellers for some other reason 

could not prove competitive injury. Those who did compete with an allegedly favored 

reseller would have to prove that the rebates given to the reseller, and not any other 

factors, caused the Specialist to lose sales or profits. That inquiry would involve facts 

unique to each member of the proposed class. 

Apple next addressed injury, causation, and damages issues, arguing that these 

were inherently individualized inquiries that would overwhelm any common questions. 

It pointed to expert economist Keeley’s report, which identified the many companyspecific factors that would affect any analysis of whether Apple’s alleged conduct 

harmed a particular Specialist and the extent of any such harm. Apple argued that 

plaintiffs’ testimony and the 12 declarations from non-plaintiff Specialists whose 

businesses have enjoyed tremendous success illustrated that each individual Specialist’s 

profitability is determined by a myriad of factors. Apple argued that plaintiffs could not 

“finesse” this issue with their expert Regan’s opinion that “it is possible to calculate the 

economic damages suffered by the Apple Specialist Resellers on a class-wide basis.”

Apple emphasized that Regan described his opinion as a hypothetical damages model that 

was not based on actual data. Regan admitted that he had not finalized or tested the 

model. Regan also admitted that he could not offer any opinions on whether any of the 

named plaintiffs suffered economic damages. Apple dismissed Regan’s opinion as 

irrelevant. It noted that California limits recovery for injury to a business to lost net
12

profits. Regan admitted that his hypothetical model would calculate only lost gross 

profits.

The trial court took the matter under submission after a lengthy hearing at which 

both sides utilized slide presentations. The court issued a written order denying the 

motion. The court found that plaintiffs “did not meet their burden of showing that 

common questions of law or fact would predominate over the questions affecting 

individual members.” The court specifically found that “[w]ith regard to the fraud-based 

claims . . . , each class member will need to prove delayed discovery in order to get past 

Apple’s statute of limitations defense. This is an inherently individualized inquiry.” 

“Further, each member will need to present highly individualized evidence 

regarding the representations he or she heard, his or her reliance upon the representations, 

whether the damages suffered were proximately caused by the fraud (as opposed to other 

unique factors such as their market, location, state of the local economy, level of service 

at the store, and management expertise), and the amount of damages.” 

“With regard to contract-based claims . . . , individual issues will also 

predominate. The evidence shows that each of the Plaintiffs has a highly individual 

claim with regard to allocation. The same would be expected of each member of the 

Specialist Class. In other words, there is no commonality with regard to which products 

were wrongfully withheld from members of the Specialist Class. Further, there are also 

substantial variations in the confirmation letters that Apple provided to members of the 

Specialist Class during the Class Period. Each member of the Specialist Class would 

have to present highly individualized evidence regarding which products were withheld 

or delayed, when those products were ordered, when they were received, whether Apple 

retail stores and/or Apple Online was treated more favorably as to allocation of those 

products, whether the member’s own conduct (such as credit problems or conditions 

attached to an order) caused the withholding or delay, whether the withholding or delay 

of those products proximately caused damage, and the amount of damage.” 
13

“With regard to the misappropriation of trade secrets claims . . . , individual issues 

would predominate as to the existence of a trade secret, the use or misappropriation of the 

trade secret, proximate causation, and amount of damages.” “With regard to the secret 

rebates claims . . . , individual issues would predominate as to whether each class 

member suffered a ‘competitive injury.’” 

As a second basis for its denial of class certification, the court found that “all of 

the factors point to individual lawsuits being superior to a class action.” Plaintiffs filed a 

timely notice of appeal from the trial court’s order. 

II. Discussion

Plaintiffs challenge the denial of their motion. They contend that the trial court 

“incorrectly applied class certification standards, used improper criteria and made 

erroneous legal assumptions and unsupported, irrelevant factual findings.” We disagree.

“‘The certification question is “essentially a procedural one that does not ask 

whether an action is legally or factually meritorious.”’” (Brinker Restaurant Corp. v. 

Superior Court (2012) 53 Cal.4th 1004, 1023 (Brinker).) “Presented with a class 

certification motion, a trial court must examine the plaintiff’s theory of recovery, assess 

the nature of the legal and factual disputes likely to be presented, and decide whether 

individual or common issues predominate. To the extent the propriety of certification 

depends upon disputed threshold legal or factual questions, a court may, and indeed must, 

resolve them.” (Brinker, at p. 1025.)

“As the focus in a certification dispute is on what type of questions—common or 

individual—are likely to arise in the action, rather than on the merits of the case 

[citations], in determining whether there is substantial evidence to support a trial court’s 

certification order, we consider whether the theory of recovery advanced by the 

proponents of certification is, as an analytical matter, likely to prove amenable to class 

treatment. [Citations.] ‘Reviewing courts consistently look to the allegations of the 
14

complaint and the declarations of attorneys representing the plaintiff class to resolve this 

question.’” (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 327.) 

“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. 

[Citations.] ‘In turn, the “community of interest requirement embodies three factors: (1) 

predominant common questions of law or fact; (2) class representatives with claims or 

defenses typical of the class; and (3) class representatives who can adequately represent 

the class.”’” (Brinker, supra, 53 Cal.4th at p. 1021.)

“The ‘ultimate question’ the element of predominance presents is whether ‘the 

issues which may be jointly tried, when compared with those requiring separate 

adjudication, are so numerous or substantial that the maintenance of a class action would 

be advantageous to the judicial process and to the litigants.’ . . . A court must examine 

the allegations of the complaint and supporting declarations [citation] and consider 

whether the legal and factual issues they present are such that their resolution in a single 

class proceeding would be both desirable and feasible. [Fn. omitted] ‘As a general rule 

if the defendant’s liability can be determined by facts common to all members of the 

class, a class will be certified even if the members must individually prove their 

damages.’” (Brinker, supra, 53 Cal.4th at pp. 1021-1022.) “[The court] must determine 

whether the elements necessary to establish liability are susceptible of common proof or, 

if not, whether there are ways to manage effectively proof of any elements that may 

require individualized evidence.” (Brinker, at p. 1024.)

A. Standard of Review

“‘The decision [whether] to certify a class rests squarely within the discretion of 

the trial court, and we afford that decision great deference on appeal, reversing only for a 

manifest abuse of discretion: “Because trial courts are ideally situated to evaluate the 
15

efficiencies and practicalities of permitting group action, they are afforded great 

discretion in granting or denying certification.” [Citation.] A certification order 

generally will not be disturbed unless (1) it is unsupported by substantial evidence, (2) it 

rests on improper criteria, or (3) it rests on erroneous legal assumptions. [Citations.]’

[Citations.] Predominance is a factual question; accordingly, the trial court’s finding that 

common issues predominate generally is reviewed for substantial evidence. [Citation.]

We must ‘[p]resum[e] in favor of the certification order . . . the existence of every fact the 

trial court could reasonably deduce from the record . . . .’” (Brinker, supra, 53 Cal.4th at 

p. 1022.)

“The appeal of an order denying class certification presents an exception to the 

general rule that a reviewing court will look to the trial court’s result, not its rationale. If 

the trial court failed to follow the correct legal analysis when deciding whether to certify 

a class action, ‘an appellate court is required to reverse an order denying class 

certification . . . , “even though there may be substantial evidence to support the court’s 

order.”’ [Citations.] In other words, we review only the reasons given by the trial court 

for denial of class certification, and ignore any other grounds that might support denial.” 

(Bartold v. Glendale Federal Bank (2000) 81 Cal.App.4th 816, 828-829.)

B. Predominance—Fraud Claim

Plaintiffs contend that the trial court erred in concluding that they failed to 

establish the predominance of common questions with respect to their fraud claim. We 

disagree.

1. Fraud Claim—Statute of Limitations

Plaintiffs challenge the trial court’s finding that Apple’s statute of limitations 

defense to their fraud claim would require an inherently individualized inquiry since 

“each class member will need to prove delayed discovery in order to get past” that 

defense. They claim the court was “legally wrong to believe that it could deny 
16

certification based on individual statutes of limitations issues” and that it “also erred in 

concluding that individual issues arose . . . .” We deem these arguments forfeited by 

plaintiffs’ failure to raise them below in response to Apple’s contention that their fraud 

claim raised individualized statute of limitations and delayed discovery issues. 

(Fairbanks v. Farmers New World Life Ins. Co. (2011) 197 Cal.App.4th 544, 552.)

We would reject these arguments even if we assumed that plaintiffs preserved 

them. In examining whether common issues of law or fact predominate, “[t]he 

affirmative defenses of the defendant must also be considered, because a defendant may 

defeat class certification by showing that an affirmative defense would raise issues 

specific to each potential class member and that the issues presented by that defense 

predominate over common issues. [Citations.]” (Walsh v. IKON Office Solutions, Inc.

(2007) 148 Cal.App.4th 1440, 1450.) The trial court did not err in considering whether 

Apple’s statute of limitations defense would raise predominately individual issues. 

(Kennedy v. Baxter Healthcare Corp. (1996) 43 Cal.App.4th 799, 811.) 

The trial court’s finding that Apple’s statute of limitations defense to plaintiffs’ 

fraud claim would require an inherently individualized inquiry was supported by 

substantial evidence. To establish delayed discovery, class members will need to prove 

when and how they discovered the alleged fraud and why they could not have discovered 

it sooner. (McKelvey v. Boeing North American, Inc. (1999) 74 Cal.App.4th 151, 160.)

This cannot be done with common evidence because there was substantial evidence that 

each of the named plaintiffs has a different story. Apple submitted evidence that Siechert 

complained to the Federal Trade Commission in May 2001, accusing Apple of fraud and 

asserting that it was trying to eliminate its resellers. He began disseminating those views 

via the “SpeciaList” listserve in May 2001, cautioning his fellow Specialists not to 

believe what Apple was telling them about the retail stores. Siechert eventually

dismissed his fraud cause of action. 
17

Plaintiff Weingarten began broadcasting views similar to Siechert’s on the 

listserve in 2001, warning other Specialists that Apple “will continue the stores and try 

and put every one of you out of business.” Notwithstanding this and similar 2001 emails, the complaint alleges (and Weingarten declared) that he did not discover Apple’s 

“true intentions” to drive the resellers out of business until January 1, 2004, when Apple 

executives “failed to communicate again with” him about issues he raised in a 2003 email and later discussed with them. Plaintiffs Rogers, Mel Weisblatt of Computer Outlet, 

and O’Neil claimed that they discovered Apple’s “true intentions” at different times and 

in varying ways in the latter part of 2003 and early 2004. 

The e-mails that Siechert and Weingarten broadcasted to the listserve in 2001, 

Weingarten’s declaration, and Siechert’s dismissal of his fraud cause of action supported 

a conclusion that when and how each member of the proposed class discovered the 

alleged fraud and why he or she could not have done so earlier cannot be proven by 

common evidence. Substantial evidence thus supported the trial court’s finding that 

Apple’s statute of limitations defense to plaintiffs’ fraud claim would require an 

individualized inquiry. 

Plaintiffs criticize the court’s “unexplained conclusion” that their UCL claim also 

raised individual statute of limitations issues. They base their argument on the following 

paragraph from the court’s order denying certification: “In this case, Plaintiffs did not 

meet their burden of showing that common questions of law or fact would predominate 

over the questions affecting individual members. With regard to the fraud-based claims 

(9th and 11th causes of action), each class member will need to prove delayed discovery 

in order to get past Apple’s statute of limitations defense. [Italics added.] This is an

inherently individualized inquiry. A defendant may defeat class certification by showing 

that an affirmative defense would raise issues specific to each potential class member and 

that the issues presented by that defense predominate over common issues. [Citation.] 

Further, each member will need to present highly individualized evidence regarding the 
18

representations he or she heard, his or her reliance upon the representations, whether the 

damages suffered were proximately caused by the fraud (as opposed to other unique 

factors such as their market, location, state of the local economy, level of service at the 

store, and management expertise), and the amount of damages.” 

In the context of this case, we think the reference to plaintiffs’ ninth cause of 

action (for violation of the UCL) was a mistake. Plaintiffs’ motion papers confusingly 

referred to “the class’s deception-based claims—their claims of fraudulent business 

practices under the UCL and common-law fraud.” But their eighth amended complaint 

does not assert a claim for fraudulent business practices. Their ninth cause of action for 

unlawful business practices in violation of the UCL is based on allegations that Apple 

sold its resellers used and/or refurbished products as new. It says nothing about a scheme 

to drive the resellers out of business. To the extent that plaintiffs have a claim for 

fraudulent business practices under the UCL based on allegations that Apple engaged in 

any such scheme, that claim is unpleaded. 

Apple did not argue in opposition to class certification that plaintiffs’ UCL claim 

was time-barred. It argued that their fraud claim raised “fundamental individual issues 

regarding the statute of limitations.” The trial court had in 2008 ruled that the fraud 

claim was time-barred unless plaintiffs could establish delayed discovery. The 2008

order said nothing about the UCL claim. Against this background, we conclude that the 

trial court’s mention of plaintiffs’ ninth cause of action was a mistake rather than a 

“conclusion” that the UCL claim raised individual statute of limitations issues. 

2. Fraud Claim—Reliance

Plaintiffs challenge the trial court’s finding that “each member will need to present 

highly individualized evidence regarding the representations he or she heard [and] his or 

her reliance upon the representations.” They assert that individual issues will not arise 

because “reliance is presumed or inferred upon a showing that the information misstated 

or concealed was material to a reasonable person.” We disagree.
19

The cases plaintiffs rely on to support their argument are inapposite. In re 

Tobacco II Cases (2009) 46 Cal.4th 298 (Tobacco II) and Massachusetts Mutual Life Ins. 

Co. v. Superior Court (2002) 97 Cal.App.4th 1282 (Massachusetts Mutual) are UCL 

fraudulent business practices cases. “‘[T]he “fraud” contemplated by section 17200 [ ] 

. . . bears little resemblance to common law fraud or deception.’” (Massachusetts 

Mutual, at p. 1290.) “The fraudulent business practice prong of the UCL has been 

understood to be distinct from common law fraud.” (Tobacco II, at p. 312.) Neither of 

the cases that plaintiffs cite supports a presumption of reliance in common law fraud 

cases like this one.

Plaintiffs next argue that “classwide reliance will be presumed or inferred because 

Apple’s misrepresentations were uniform, and were written or scripted.” They raised a 

similar argument below. The trial court properly rejected it. 

Reliance is a necessary element of a claim for fraud. Alliance Mortgage Co. v. 

Rothwell (1995) 10 Cal.4th 1226, 1239 (Alliance).) “California courts have always 

required plaintiffs in actions for deceit to plead and prove the common law element of 

actual reliance.” (Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1092 (Mirkin).) Actual 

reliance must also be pleaded and proved in cases averring fraud by omission. (Id. at 

pp. 1092-1093.) In rare situations, “when the same material misrepresentations have 

actually been communicated to each member of a class, an inference of reliance arises as 

to the entire class.” (Id. at p. 1095, citing Vasquez v. Superior Court (1971) 4 Cal.3d 800 

(Vasquez) and Occidental Land, Inc. v. Superior Court (1976) 18 Cal.3d 355 (Occidental 

Land).)

Plaintiffs’ reliance on Vasquez and Occidental Land is misplaced. Reliance was a 

common issue in Vasquez but only under what the Mirkin court called “the peculiar facts 

of the case.” (Mirkin, supra, 5 Cal.4th at p. 1094.) The plaintiffs in Vasquez bought 

frozen meat and freezers on installment contracts. (Vasquez, supra, 4 Cal.3d at p. 805.) 

They sued the sellers for fraudulently misrepresenting the price and value of the 
20

merchandise. The trial court sustained demurrers to the class action aspect of the fraud 

count. (Id. at pp. 805-806.) The high court granted the plaintiffs’ writ petition, 

explaining that the plaintiffs claimed they could demonstrate on a classwide basis that the 

alleged representations were in fact made to each class member. They could do so

“because the salesmen employed by [the defendant] memorized a standard statement 

containing the representations (which in turn were based on a printed narrative and sales 

manual) and . . . this statement was recited by rote to every member of the class.” (Id. at 

pp. 811-812.) “The demurrers must be deemed to admit these facts. If plaintiffs can 

prove their allegations at the trial, an inference that the representations were made to each 

class member would arise, in which case it would be unnecessary to elicit the testimony 

of each plaintiff as to whether the representations were in fact made to him.” (Id. at 

p. 812, fn. omitted.) If the trial court found the misrepresentations were material, “at 

least an inference of reliance would arise as to the entire class.” (Id. at p. 814.) 

Occidental Land presented a similar situation. The plaintiff homebuyers in that 

case alleged that the defendant developer misrepresented the future cost of maintaining 

certain common areas. Relying on Vasquez, the court held that actual reliance was 

susceptible of common proof because the alleged misrepresentations were contained in a 

public report and “[e]ach purchaser was obligated to read the report and state in writing 

that he had done so.” (Occidental Land, supra, 18 Cal.3d at pp. 358, 361.)

This case is different. Unlike in Vasquez or Occidental Land, there was no 

evidence here that the alleged “series of false representations” was “in fact made” to each 

class member. (Vasquez, supra, 4 Cal.3d at pp. 811-812.) There was no evidence that 

each class member expressly acknowledged reading or hearing the identical series of 

false misrepresentations. (Occidental Land, supra, 18 Cal.3d at pp. 358.) The

Vasquez/Occidental Land inference of reliance does not apply without uniform material 

misrepresentations having been actually made to class members. (E.g., Kaldenbach v. 

Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 846-847 (Kaldenbach).)
21

Plaintiffs argue that classwide reliance should be presumed or inferred because the 

“representation that Specialists would receive ‘priority’ allocation was in writing in every 

Specialist’s written contract.” Not so. The Specialist confirmation letters described some 

of the benefits and requirements of the Specialist program. Those benefits and 

requirements varied over time. The confirmation letters also varied over time, as plaintiff 

O’Neil acknowledged. There was no uniform representation about “‘priority’ 

allocation.” Classwide reliance is not properly inferred in circumstances like these, as the 

trial court properly concluded. (Kaldenbach, supra, 178 Cal.App.4th at pp. 846-847.)

Any inference of reliance here would be particularly inappropriate because there 

was affirmative evidence that the allegedly “scripted” misrepresentations were not 

communicated to all Specialists or even to all of the named plaintiffs. Plaintiff Weisblatt

asserted in a declaration that Apple representatives told him there would be “a ‘level 

playing field’” between the Apple stores and resellers’ stores. But he admitted in 

deposition that he did not recall any conversations in which Apple representatives used 

that term to reassure him about how the retail stores would operate in relation to 

Specialists like him. He testified that Apple representatives stated at gatherings of 

resellers that the company was going to give Specialists “a fair shake” or words to that 

effect, that the retail stores were going to expand business “for the whole Apple 

corporation and that we would get a large part of that,” and that “the dealers were 

important and they would be taken care of basically.”

Plaintiff O’Neil could not recall being told that “‘all ships will rise with the tide’”

and he equivocated when asked whether Apple representatives told him that the Apple 

stores would be on “ ‘a level playing field’” with resellers’ stores. Other Specialists 

declared that they were “never” told that all ships would rise with the tide, that the retail 

stores would be on a level playing field with the Specialists’ stores, or that they or any 

Specialist would receive product before the retail stores or before any other Apple 

reseller. Substantial evidence thus supported the trial court’s finding that each class 
22

member would need to present highly individualized evidence regarding the particular

representations that he or she claimed to have heard. 

Substantial evidence also supported the trial court’s finding that each class

member would need to present individualized evidence about how he or she relied on the 

alleged misrepresentations. There was evidence that not all Specialists heard the alleged 

misrepresentations. A person obviously cannot establish actual reliance on a 

misrepresentation that he or she never heard. (Mirkin, supra, 5 Cal.4th at pp. 1089, 

1100.) 

Nor can a person claim to have been deceived by a misrepresentation that he or 

she did not believe. (Maxon-Nowlin Co. v. Norswing (1913) 166 Cal. 509, 511-512.) 

There was evidence that not all Specialists believed the misrepresentations they claim to 

have heard. Weingarten’s 2001 posts to the listserve warned of “Apple’s long range 

plan” to “do away with all you resellers.” O’Neil testified based on his recollection of 

other Specialists’ postings to the listserve that at least some of them did not believe that 

the retail stores would increase Specialists’ sales. Siechert testified that he was “sure” 

there were “other folks that didn’t believe what we were being told.” 

Apple presented evidence that called some Specialists’ claimed reliance on the 

alleged misrepresentations into question. “Reliance exists when the misrepresentation or 

nondisclosure was an immediate cause of the plaintiff’s conduct which altered his or her 

legal relations, and when without such misrepresentation or nondisclosure he or she 

would not, in all reasonable probability, have entered into the contract or other 

transaction. [Citation.]” (Alliance, supra, 10 Cal.4th at p. 1239.) Rogers testified that 

she “[p]robably” would have become a Specialist with or without a promise of priority 

product allocation. Rogers continued to sign reseller and Specialist contracts for years 

after she claimed to have discovered Apple’s alleged scheme to put her out of business. 

O’Neil did the same. All of this evidence amply supported the trial court’s finding that 

reliance was not susceptible of classwide proof. Instead, each class member would need 
23

to present “highly individualized evidence” about which representations he or she heard 

and how (if at all) he or she relied on them. 

3. Fraud Claim—Causation and Damages

Plaintiffs challenge the trial court’s finding that their fraud claim would require 

each member of the class to provide “highly individualized evidence regarding . . . 

whether the damages suffered were proximately caused by the fraud (as opposed to other 

unique factors such as their market, location, state of the local economy, level of service 

at the store, and management expertise) and the amount of damages.” To the extent they 

contend that the court should not have considered whether causation and damages raised 

predominately individual issues, we reject the contention. 

“‘[R]esulting damage’ ” is a necessary element of fraud. (Alliance, supra, 10 

Cal.4th at p. 1239.) “Deception without resulting loss is not actionable fraud. [Citation.] 

‘Whatever form it takes, the injury or damage must not only be distinctly alleged but its 

causal connection with the reliance on the representations must be shown.’ [Citation.]” 

(Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1818.) Thus, the 

trial court did not err in considering whether proximate cause and damages could be 

proven on a classwide basis. (Brinker, supra, 53 Cal.4th at p. 1023.)

Plaintiffs maintain that the trial court “disregarded how such class damages are 

tried and assumed that they would be proven on a strictly individual basis, which is 

contrary to law.” Their reliance on In re Cipro Cases I & II (2004) 121 Cal.App.4th 402 

(Cipro) is misplaced. In Cipro, the court affirmed an order certifying a Cartwright Act 

price-fixing case as a consumer class action. It did so after determining (among other 

things) that substantial evidence supported the trial court’s finding that damages were 

susceptible of classwide proof by expert testimony without regard to the particular

circumstances of each individual class member. (Id. at pp. 411.) The Cipro court did not 

hold or suggest that the calculation of aggregate classwide damages is appropriately 

based on a formula in all or most cases. Nor did the Cipro court suggest that it is an 
24

abuse of discretion for a trial court to deny certification when it concludes that 

determining the fact and extent of class members’ damages would require individualized 

inquiries that would preclude a finding that common issues predominate. The court 

expressly recognized that “[i]t is within the trial court’s discretion to weigh the inherent 

imperfections of such approximations against the vindication of important statutory 

policies and the burden to the courts of proving damages on a strictly individual basis.” 

(Cipro, at p. 418.)

The important statutory policies implicated in Cipro address anticompetitive 

conduct. As the court noted, “claims of anticompetitive collusion resulting in higher 

market prices are particularly suited for class treatment.” (Cipro, supra, 121 Cal.App.4th 

at p. 415.) “[I]t has long been recognized [in the antitrust context] that, although the fact 

of injury must be established with reasonable certainty, a less rigid standard of proof is 

imposed with respect to the amount of damage caused by an antitrust violation, because 

economic harm in such actions is difficult to quantify.” (Evans v. Lasco Bathware, Inc.

(2009) 178 Cal.App.4th 1417, 1431 (Evans).) In such cases, “rather than deny any 

recovery to those injured by anticompetitive activity because they cannot prove damages 

with exactitude, ‘it will be enough if the evidence show [sic] the extent of the damages as 

a matter of just and reasonable inference, although the result be only approximate.’ 

[Citation.]” (Evans, at p. 1431, quoting Story Parchment Co. v. Paterson Parchment 

Paper Co. (1931) 282 U.S. 555, 563.)

Here, no such difficulties of proof exist. This is not an antitrust case. Cipro does 

not advance plaintiffs’ position.

Plaintiffs assert that individual issues of causation “[d]o [n]ot [p]redominate.” We 

disagree. Substantial evidence supported the trial court’s finding that plaintiffs’ fraud 

claim raised predominately individual issues of causation and damages. Plaintiffs’ theory 

of recovery was that the alleged fraudulent misrepresentations caused them to suffer 

“substantial loss of customers, business and sales over time, substantially diminishing the 
25

value of their businesses.” Their claim is one for lost profits, the fact and extent of which 

must be shown “‘with reasonable certainty.’” (Sanchez-Corea v. Bank of America (1985) 

38 Cal.3d 892, 907-908.) Plaintiffs cannot recover profits lost for reasons unrelated to 

Apple’s alleged wrongdoing. (Continental Car-Na-Var Corp. v. Moseley (1944) 24 

Cal.2d 104, 113.)

Apple’s expert economist Keeley identified numerous firm-specific factors 

unrelated to Apple’s alleged wrongdoing that can affect an individual Specialist’s 

performance. These included the number of storefronts, their location, their target 

customers, product mix and service offerings, their reliance on Apple products, their 

inventory practices, and the extent of competition from other resellers and other computer 

retailers. We have already described the many differences among the Specialists with 

respect to those factors. (Ante, at pp. 2-3.) As Keeley explained, it can be inferred from 

these differences that any effect of Apple’s alleged conduct would vary from Specialist to 

Specialist. 

The record illustrates the point. There was evidence that some Specialists who 

claimed to have heard and relied on the alleged misrepresentations faltered for reasons

that had nothing to do with Apple’s alleged wrongdoing. Plaintiff Omnitech, for 

example, was located in a poor location in a fairly remote part of Hyannis, Massachusetts 

with virtually no pedestrian traffic. A former Omnitech employee testified that the 

company’s retail showroom was “old, cluttered, poorly maintained, and unattractive.” 

Omnitech suffered from poor management and often did not have high-demand products 

in stock because of its credit problems. Its service center was understaffed. Former 

owner O’Neil admitted that a competing Specialist “was an increasing drain on our 

business.” It was “a major blow” to Omnitech when that Specialist opened its second 

store in the nearby town of Harwich, Massachusetts. When Omnitech went out of 

business in April 2007, the same competitor opened another store in Hyannis. The 

competitor’s Hyannis store has succeeded. 
26

There was evidence that plaintiff Weisblatt’s Computer Outlet also faltered for 

reasons unrelated to Apple’s alleged wrongdoing. Weisblatt testified that Computer 

Outlet stopped being profitable in 1996. Weisblatt had an expensive long-term lease on a 

building with two large training rooms where customers could learn how to use 

computers. But training became increasingly less important as the general public became 

more knowledgeable about computers. In addition, Computer Outlet lost many large 

business customers when their companies were acquired by companies that had existing 

purchasing relationships with other computer retailers. 

Apple submitted evidence that many Specialists enjoyed remarkable success after 

the retail stores opened in 2001. Some attributed much of their success to the “‘halo 

effect’ ” of the Apple stores. Others attributed their success to their own initiative. One 

Specialist “more than doubled” its growth by moving to a higher traffic location and 

investing in a top-quality build-out. Another Specialist located just blocks away from an 

Apple store diversified his business and differentiated it from the competition through its 

customer service policies. Its revenues have grown steadily since it became a Specialist 

in 2002. This and similar evidence showed that individual Specialists succeeded or 

faltered for reasons unique to their individual businesses. Substantial evidence thus 

supported the trial court’s finding that plaintiffs’ fraud claim raised predominately 

individual issues of causation and damages. 

Plaintiffs maintain that the trial court’s finding was “reversible error.” They assert 

that the court improperly “ignored” their expert Regan’s testimony that damages can be 

calculated on a classwide basis. The contention lacks merit. There is no evidence that 

the trial court “ignored” Regan’s testimony. The hearing transcript reveals that the court 

read Regan’s submissions but was not convinced by his theories. We do not find this 

surprising. Regan’s declaration was entirely speculative. He declared that it was 

“possible” to calculate the economic damage suffered by the Specialists on a classwide 

basis. But he conceded in deposition that the only work he had done was “hypothetical” 
27

and “not based upon actual data from Apple.” He had not performed any calculations or 

tried to validate whether any of the theories that he and plaintiffs’ counsel discussed 

“might actually work.” He had not constructed any model. Nor had he done anything to 

validate his hypothetical model. Regan acknowledged that he had not examined any 

evidence specific to any of the named plaintiffs, did not know anything about any of 

them, and could not offer any opinions on whether any of them suffered any economic 

damages. Moreover, Regan conceded that even if he could develop an aggregate 

damages model, whether any specific Specialist had been injured by Apple’s alleged 

wrongful conduct could only be determined by a Specialist-specific analysis. Regan’s 

testimony did not constitute substantial evidence that damages could be calculated on a 

classwide basis. (See Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 

1111 [reversing trial court’s predominance finding because expert testimony was “too 

qualified, tentative and conclusionary to constitute substantial evidence” that causation 

and damages could be proved by common evidence].) As plaintiffs’ counsel admitted, 

“the damage theories, exactly how we will present them, you know, we have Regan’s 

declaration. We don’t have more than that.” 

Even if Regan’s testimony was substantial evidence that damages could be 

calculated on a classwide basis, it is not our task to second-guess the trial court’s 

conclusions. “Our role on this appeal is narrowly confined to examining whether the trial 

court’s ruling is supported by substantial evidence, and if it is, we may not substitute our 

own judgment for that of the trial court.” (Dailey v. Sears, Roebuck & Co. (2013) 214 

Cal.App.4th 974, 992 (Dailey).) We must “confine our analysis to whether the record 

contains substantial evidence supporting the trial court’s conclusion” that plaintiffs’ fraud 

claim raised predominately individual issues of causation and damages. (Ibid.)
28

C. Predominance—Contract-Based Claims

Plaintiffs challenge the trial court’s refusal to certify their claim that Apple’s 

alleged scheme to put them out of business by starving them of new products denied 

them the benefit of their agreements with the company. They complain that the court’s 

findings were unsupported by the evidence. We disagree.

The trial court found that each named plaintiff had “a highly individual claim with 

regard to allocation” and that “[t]he same would be expected of each member of the 

Specialist Class. In other words, there is no commonality with regard to which products 

were wrongfully withheld from members of the Specialist Class.” The court also found 

“substantial variations in the confirmation letters that Apple provided to members of the 

Specialist Class during the Class Period.” It concluded that each member of the class 

“would have to present highly individualized evidence regarding which products were 

withheld or delayed, when those products were ordered, when they were received, 

whether Apple retail stores and/or Apple Online was treated more favorably as to 

allocation of those products, whether the member’s own conduct (such as credit problems 

or conditions attached to an order) caused the withholding or delay, whether the

withholding or delay of those products proximately caused damage, and the amount of 

damage.” Ample evidence supported these findings.4

There was evidence that Apple allocated constrained product among its worldwide 

segments, among the different channels in those regions, and among distributors or 

resellers in each channel on an ad hoc basis rather than by a set policy or formula. Many 

different factors affected when a Specialist received a particular constrained product and 

how much he or she received. For example, those in higher tiers of the Specialist 

 

4 We reject plaintiffs’ assertion that the trial court failed to consider the evidence

that they submitted. The court’s questions at the hearing illustrate its thorough familiarity 

with the evidence and the issues. Before the court took the matter under submission, it 

sought copies of the slide presentations that both sides used to highlight their arguments. 
29

program were entitled to receive more of a constrained product than those in the lower 

tiers. Those who participated in the early order/early ship program for new products 

could receive shipments ahead of those who did not participate in that program. Whether 

a Specialist ordered product directly from Apple or from an independent distributor also 

made a difference because the distributors made their own allocation decisions without

any input from Apple. Moreover, not all Specialists ordered every constrained product. 

The evidence convincingly showed that the named plaintiffs’ claims were highly 

individual. Their claims of wrongfully withheld products varied substantially. 

Weingarten claimed that Apple deliberately withheld nine different product models from 

him. Horizon contended that Apple wrongfully withheld 29. Omnitech maintained that 

137 products were wrongfully withheld. Siechert limited some of his claims to particular 

orders. He placed six different orders for the same product model between December 

2001 and March 2002 but claimed that only the third was wrongfully withheld. None of 

the other named plaintiffs contended that that particular product was wrongfully 

withheld. 

There was evidence that Apple’s first shipments of constrained product to 

Specialists in a particular area were often made before or on the same date as its first 

shipments to Apple retail stores in the vicinity. There was evidence that on numerous 

occasions, Apple shipped product to the named plaintiffs instead of to nearby Apple retail 

stores. All of this evidence showed that plaintiffs’ claims of wrongful allocation would 

require a Specialist-by-Specialist and product-by-product inquiry. Thus, substantial 

evidence supported the trial court’s finding that plaintiffs’ allocation claims could not be 

established on a classwide basis.

Plaintiffs argue that the trial court’s “attempt to extrapolate” its findings about 

their claims to those of the absent class members was “baffling.” We disagree. Plaintiffs 

purported to represent a class of “similarly situated” Apple resellers. Substantial 

evidence supported the trial court’s conclusion that plaintiffs’ allocation claims would 
30

require a highly individualized inquiry. It was reasonable for the court to conclude that 

the claims of purportedly “similarly situated” class members’ would likewise require a 

highly individualized inquiry.

Plaintiffs argue that the trial court’s “attempt to extrapolate” its findings about 

their claims to those of the absent class members was also “unnecessary.” We disagree. 

The essence of plaintiffs’ argument is that substantial evidence supported their position. 

The argument misperceives our role on appeal, which is “narrowly confined to examining 

whether the trial court’s ruling is supported by substantial evidence.” (Dailey, supra, 214 

Cal.App.4th at p. 992.) We have concluded that it was.

Plaintiffs argue that the trial court’s conclusion that their allocation claims could 

not be established on a classwide basis but would instead require a highly individualized 

inquiry was “simply wrong, as a matter of law.” We disagree. Plaintiffs’ reliance on 

Capitol People First v. State Dept. of Developmental Services (2007) 155 Cal.App.4th 

676 (Capitol People) and similar cases is misplaced. The plaintiffs in Capitol People 

challenged a “systemic failure” by state agencies to provide community services to 

persons with developmental disabilities. (Capitol People, at pp. 691, 702.) They alleged 

that the defendants’ failure to provide the statutorily-mandated level of services deprived 

class members of their rights. (Ibid.) The trial court concluded that the plaintiffs could 

not satisfy the commonality requirement because the issues dictated inquiry into each 

class member’s individualized circumstances. (Id. at p. 688.) The Court of Appeal 

reversed, repeatedly emphasizing that the plaintiffs sought “only systemic relief, and not 

individual solutions to individual problems.” (Id. at pp. 681, 686, 690, 693, 695, 702-

703.) That “‘systemic relief’ ” (specifically, an order compelling the agencies to put in 

place procedures, practices, and an infrastructure to ensure their ability to satisfy their 

obligations to class members) “‘could not be obtained on a case-by-case basis.’ ” (Id. at 

p. 694.)
31

This case is nothing like Capitol People. It has nothing to do with entitlement to 

government benefits on a systemic basis. Nor can the alleged harm in this case be 

remedied by a single injunction. Unlike in Capitol People, plaintiffs here seek “severe 

monetary damages” for each and every class member in the form of profits lost by his or 

her business. This requires an individualized inquiry, as the trial court properly found. 

Capitol People is inapposite.

Plaintiffs challenge the sufficiency of the evidence supporting the trial court’s 

finding that the Specialist confirmation letters contained substantial variations. They 

assert that “[t]here were no such variations.” They maintain that “all of the contracts 

during the Class Period promised priority allocation.” We cannot agree.

There was evidence that the terms of the Specialists confirmation letters varied 

over time. Early letters described “‘advantageous product allocation’ ” as a benefit of the 

Specialist program but qualified that statement with the caveat that it was important to 

understand that advantageous product allocation did not mean that Apple would 

guarantee delivery. The 2001 confirmation letters described “Priority Product 

Allocation” as a benefit of the Specialist program. The 2003 confirmation letter said 

“Priority Launch Allocation—Apple reserves the right to allocate more product to Apple 

Specialists in each correspondingly higher program tier.” None of the letters defined 

“Priority Product Allocation” or “Priority Launch Allocation.” The fact that the word 

“priority” happens to appear in otherwise different phrases does not make the meaning of 

those phrases “identical,” as plaintiffs assert. Substantial evidence thus supported the 

trial court’s finding that the Specialist contracts were not identical. 

D. Predominance—“Secret Rebates” Claim

Plaintiffs challenge the trial court’s finding with respect to their UPA claim that 

“individual issues would predominate as to whether each class member suffered a 

‘competitive injury.’ ” Plaintiffs contend that this finding rested on “the same faulty 
32

assumption” that they claim the court made “with respect to the fraud-based and contractbased claims—that each class member would have to prove its entitlement to relief 

individually.” They assert that section 17082 excuses them from alleging or proving 

actual damages. We reject the contention.

Section 17045 provides that “[t]he secret payment or allowance of rebates, 

refunds, commissions, or unearned discounts, whether in the form of money or otherwise, 

or secretly extending to certain purchasers special services or privileges not extended to 

all purchasers purchasing upon like terms and conditions, to the injury of a competitor 

and where such payment or allowance tends to destroy competition, is unlawful.” 

Competitive injury is a required element of any claim for violation of section 17045. 

(Diesel Electric Sales & Service, Inc. v. Marco Marine San Diego, Inc. (1993) 16 

Cal.App.4th 202, 211-212 (Diesel); CACI 3320.) To prove competitive injury, a plaintiff 

must establish “‘with reasonable probability the existence of some causal connection 

between [the] defendant’s wrongful act and some loss of anticipated revenue . . . .’” 

(Diesel, at p. 219.)

Section 17082 provides that “[i]n any action under this chapter, it is not necessary 

to allege or prove actual damages or the threat thereof, or actual injury or the threat 

thereof, to the plaintiff. But, in addition to injunctive relief, any plaintiff in any such 

action shall be entitled to recover three times the amount of the actual damages, if any, 

sustained by the plaintiff, as well as three times the actual damages, if any, sustained by 

any person who has assigned to the plaintiff his claim for damages resulting from a 

violation of this chapter.” As explained in Uneedus v. California Shoppers, Inc. (1978) 

86 Cal.App.3d 932, “[b]y section 17082’s own terms, a plaintiff can bring an action for 

injunctive relief without proving actual damages. However, to be entitled to treble 

damages a plaintiff must prove actual damages. . . . In the absence of such proof, treble 

damages are not permitted and a plaintiff is limited to an injunctive remedy.” (Uneedus, 

at p. 943, second italics added.)
33

Plaintiffs seek more than injunctive relief here. They also seek actual and punitive

damages. They must plead and prove competitive injury. (Diesel, supra, 16 Cal.App.4th 

at pp. 211-212.)

The next issue is whether substantial evidence supported the trial court’s finding 

that competitive injury could not be established on a classwide basis. It did. Expert 

economist Keeley explained that whether a Specialist was adversely impacted by Apple’s 

alleged discounting to favored resellers would depend on the extent to which that

Specialist competed with the favored resellers’ stores for sales. There was evidence that 

Specialists located close to allegedly favored resellers were not necessarily in direct 

competition with them. Omnitech, for example, was located near Best Buy and Staples 

but did not compete with them because they catered to the home user, while Omnitech’s 

target market was small business. Other resellers declared that nearby Best Buy or 

CompUSA stores had no appreciable impact on their sales. In fact, there was evidence 

that one allegedly favored reseller referred its service and support business to a nearby 

Specialist store. This evidence amply supported the trial court’s conclusion that it would 

require an individualized inquiry to determine which Specialists were in direct 

competition with one or more allegedly favored resellers. Those that were would have to 

prove that the alleged secret rebates (rather than other factors) caused them to lose sales 

or profits. (See American Booksellers Assn., Inc. v. Barnes & Noble, Inc. (N.D.Cal.

2001) 135 F.Supp.2d 1031, 1043.) As Keeley explained in his uncontroverted 

declaration, that could only be done on a Specialist-by-Specialist basis. Substantial 

evidence thus supported the trial court’s finding that plaintiffs’ section 17045 claim 

raised predominately individualized issues.

Plaintiffs summarily assert that section 17045 “only requires injury to a single 

competitor to obtain classwide relief.” They cite no case to support the proposition. Nor 

do they develop the argument. We decline to consider it. “‘An appellate court is not 

required to examine undeveloped claims, nor to make arguments for parties.’ [Citation.]”
34

(American Corporate Security, Inc. v. Su (2013) 220 Cal.App.4th 38, 44, fn. 3.) “When 

an issue is unsupported by pertinent or cognizable legal argument it may be deemed 

abandoned and discussion by the reviewing court is unnecessary.” (Landry v. Berryessa 

Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.) We deem the point 

abandoned.

E. Superiority of Proceeding by Class Action

Plaintiffs challenge the trial court’s finding that a class action would not be 

superior to individual lawsuits. We need not address this contention because “‘[a]ny 

valid pertinent reason stated will be sufficient to uphold the [trial court’s] order [granting 

or denying a class certification motion].’ [Citation.]” (Linder v. Thrifty Oil Co. (2000) 

23 Cal.4th 429, 434-436.) We have already determined that the trial court properly 

denied plaintiffs’ motion because individual issues predominated over class issues. (E.g., 

Dailey, supra, 214 Cal.App.4th at p. 1002, fn. 13 [“Given our conclusion here that Dailey 

failed to make the necessary showing of commonality as to his overtime pay and 

rest/meal break claims, it is not necessary for us to address the trial court’s additional 

stated reasons for denying class certification, i.e., that a class action is not the superior 

method for resolving this dispute, and that Dailey is not a suitable class representative.”].) 

III. Disposition

The order denying class certification is affirmed.
35

___________________________

Mihara, J.

WE CONCUR:

_____________________________

Elia, Acting P. J.

_____________________________

Grover, J.