Filed 12/ 4/17 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

DIANA N IEVES NOEL, as Personal Representative

, etc.

, Plaintiff and Appellant,

v.

THRIFTY PAYLESS, INC.

, Defendant and Respondent. A143026

(Marin County Super. Ct. No. CIV1304712)

Plaintiff James A. Noel bought an inflatable swimming pool at defendants’

drugstore that turned out to be much smaller than the pool pictured on the box. He sued

defendant Thrifty Payless, Inc. on behalf of himself and similarly situated individuals,

alleging defendant s violated the Consumers Legal Remedies Act (Civ. Code, § 1750 et

seq

. ) ( CLRA), Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) (UCL), and

False Advertising Law (Bus. & Prof. Code, § 17500) (FAL) by selling the pool with

deceptive advertising to consumers in its California retail stores. When Noel moved to

certify the class, t he trial court denied his motion on the UCL and FAL causes of action

,

f

inding Noel’s proposed class

— consisting of more than 20,000 potential members

— was

not ascertainable under Code of Civil Procedure section 382

. The court also refuse d to

certify a class on Noel’s CLRA c ause of action because it determin ed common questions

of law or fact did not predominate over individual questions of reliance and causation

. On appeal, Noel claims the court erred by applying incorrect legal standards and abused

its discretion by refusing to grant him a continuance so he could more fully develop the

facts to support his motion.

1We conclude the court did not abuse its discretion or misapply the law in denying

class certification

. Rather, the underlying problem with the class certification motion

appears to be attributable to class counsel’s premature filing of the motion without first

conducting sufficient discovery to meet its burden of demonstrating there are means of

identifyin g members of the putative class so that they might be notified of the pendency

of the litigation. This failing jeopardizes the due process rights of absent class members,

and rather than relieve the class representative of the obligation to make such a

sh owing

— as Noel’s counsel seems to suggest

— we affirm the trial court’s denial of the

class certification motion.

I. BACKGROUND

A. Factual Background

On July 4, 2013, Noel purchased an inflatable Kids Stuff Ready Set Pool (Ready

Set Pool) from a Rite Aid 1 store in San Rafael, California

, with his bank debit card for

$59.99. Noel did not retain the receipt of his purchase, but his bank record lists the Rite

Aid purchase. Noel based his decision to purchase the Ready Set Pool on a photograph

on the pool’s packaging, located on all sides of the box

, which depicted a group of three

adults and two children sitting and playing in the pool. Noel assumed the pool would be

large enough to comfortably fit a group of equivalent size . The box also prominently

displ ayed the pool’s dimensions : “8FT X 25IN.” Noel does not contend the dimensions

we re inaccurate.

Once Noel inflated and filled his pool, he noticed his pool was “materially

smaller” than the Re ady Set Pool shown on the packaging. Rather than fitting two adults

and three children as pictured on the box , Noel’s pool was capable of fitting only one

adult and four small children

. The photographs in the record and the briefs show a

marked difference in size between the pool as set up by Noel and the photo on the box.

1 Thrifty Payless, Inc. does business as Rite Aid. We refer to the defendant as Rite Aid, as the parties have done.

2B. Procedural Background

On November 18, 2013, Noel filed t his class action seeking restitution for all

consumers who purchased a Ready Set Pool from a Rite Aid store located in California

during the four years prior to that date . Following Rite Aid’s unsuccessful demurrer to

the complaint, Noel moved for class certification o n May 12, 2014 , apparently after

having taken limited discovery

, 2 with a hearing date of June 13, 201 4

. The motion was

filed by Noel’s then counsel, Randol ph Gaw of T he Gaw Group in San Francisco . Gaw

had been recommended to Noel by his son

- in

- law, Mark Poe, also an attorney. Poe and

Gaw evidently had been classmates in law school. While Noel’s action was pending, Poe

went into law practice with Gaw, whic h prompted Rite Aid to question the adequacy of

class counsel, since Poe had been present when Noel discovered the size differential in

the pool and had been named in Noel’s discovery responses as a potential percipient

witness at trial. (See Apple Comput er, Inc. v. Superior Court (2005) 126 Cal.App.4th

1253, 1264

– 1279 .) The parties’ counsel stipulated to continue the hearing on the class

certification motion until August 22, 2014, giving both parties the opportunity to brief the

issue of counsel’s adequa cy

. On August 15, 2014, Christopher Wimmer of the Emergent Legal firm in San

Francisco substituted in as Noel’s counsel of record and also serves as his counsel on

2 On March 25, 2014, Noel responded to Rite Aid’s first set of special interrogatories, prefacing his response to each interrogatory with the following objection: “PLAINTIFF objects to this contention interrogatory as premature, as discovery has only begun in this action.” Despite this acknowledgment, less than seven weeks later, Gaw filed his class certification motion. We also note that the first set of special interrogatories that Gaw propounded to Rite Aid, which were answered on February 18, 2014, as ked no questions regarding the location or nature of any records maintained by Rite Aid relating to identifying purchasers of the Ready Set Pool, asking instead about the number of pools sold, the revenue derived from those sales, the number of pools

retur ned, and the identities of people involved in the manufacture of the pool and the development and approval for use of the Ready Set Pool box. A second set of interrogatories propounded to Rite Aid was answered on May 1, 2014; again the interrogatories inc luded no questions relating to Rite Aid’s maintenance of records regarding the purchasers of the pools or how their id entities might be ascertained.

3appeal

. Wimmer attend ed the August 22 hearing on the motion for class certification.

Desp ite his recent entry into the case, Wimmer did not request a continuance of the

hearing, nor did he seek to withdraw the motion or to supplement the evidentiary

showing. The hearing went forward as scheduled on August 22, 2014, with Wimmer

representing Noel and the putative class.

In opposing the motion for class certification

, Rite Aid submitted to the court a

photograph of the pool properly inflated and filled, and it appeared much closer to the

size of the pool depicted on the box. The photo submitted by Rite Aid showed three

adults and two children in the pool. Even in that photo, however, Noel testified the pool

appeared smaller than the pool pictured on the box. Rite Aid’s pool photo was

accompanied by the declaration of an expert in photogrammetric analysis and photo

interpretation

, concluding Noel had not set up the pool properly. 3 Despite this evidence,

Noel’s deposition testimony reflected his belief that he did set up the pool properly, and

the trial court accepted that testimony as true.

Judge Paul M. Haakenson denied Noel’s motion on the UCL and FAL causes of

action

, finding Noel did not satisfy the class ascertainability requirement for certification

und er Code of Civil Procedure section 382

. 4 The court found Noel had present ed “no

evidence ” to establish “what method or methods will be utilized to identify the class

members, what records are available, (either from Defendant, the manufacturer, or other

entities such as banks or credit institutions), how those records would be obtained, what

t hose records will show, and how burdensome thei r production would be.

. . .” The court

also found “a class action is not superior to numerous individual actions” and “will be no

more efficient than individual actions in light of the individual issues [ sic ] that must be

presented on the issue of reliance and damages.”

3 The Ready Set Pool came with very specific instructions for handling, including that it was necessary for two adults to set up the pool ; it must be installed on ground having no greater than a three

- degree slope, with no rocks, mounds, or other irregularities; and the top ring must not be inflat ed beyond 85 percent capacity.

4 The CLRA does not mention the cl ass must be ascertainable. ( Thompson v. Automobile Club of Southern California (2013) 217 Cal.App.4th 719, 72 8 ( Thompson ).)

4Judge Haakenson also denied the class certification motion on the CLRA c ause of

action

. Due to the stricter proof requirements under the CLRA , the court found Noel had

not shown the commonal ity of issues required for the CLRA. It reasoned “the CLRA

requires that all class members must show actual injury in order to recover damages,

restitution and/or injunctive relief, unless the advertisement is materially misleading.

(Civ. Code [

, ] § 1780( a); Steroid Hormone Product Cases [(20 10 )] 181 Cal.App.4th

[ 145 ,] 155.)” The court concluded “ u nless the court finds the packaging materially

misleading as a matter of law, in order to recover under a CLRA claim every class

member must prove he/she purcha sed the pool in reliance on the deceptive advertising.”

The court did not find the packaging material ly misleading and therefore found reliance

and causation w ere not predominantly common issue s

.

Noel timely appealed , alleging error in denying the class certification motion on

all three causes of action

. 5

II. DISCUSSION

A. The Legal Landscape

The CLRA protects consumers against deceptive business practices in the sale of

goods and prohibits a seller from representing that goods have characteristics they do not

possess. ( Civ. Code, § 1770, subd s . (a)(4)

– (a)(5) & (a)(7); s ee Klein v. Chevron U.S .A.

,

Inc. (2012) 202 Cal.App.4th 1342, 1374.) The UCL prohibits acts of unfair competition,

defined as “any unlawful, unfair or fraudulent business act or practice.

. . . ” (Bus. & Prof.

Code

, § 17200.) The FAL is equally comprehensive within the smaller and narrower

field of false advertising. ( Id. , § 17500; s ee Kwikset Corp. v. Superior Court (2011) 51

Cal.4th 310, 320.)

Two class action statutes are at issue here. The first, more widely operative statute

is Code of Civil Procedure section 382, which governs class actions generally, including

actions under the UCL and FAL. Under th at statute , a c ertification motion may be

5 James Noel passed away on January 31, 2016, while the appeal was pending. His widow, Diana Nieves Noel, substituted in as appellant. When we refer to “Noel,” we

mean James Noel and use the masculine pronoun.

5granted where there is “an ascertainable class and a well

- defined community of interest

among class members.” ( Sav

- O n Drug Stores , Inc. v. Superior Court (2004) 34 Cal.4th

319, 326 ( Sav

- O n ) .) The courts determine the existence of an ascertainable class using

three factors : (1) class definition, (2) class size, and (3) means of identifying class

members. ( Sotelo v. Medianews Group

, Inc . (2012) 207 Cal.App.4th 639, 648 ( Sotelo ).)

The community of interest inquiry also depends on three criteria : (1) whether common

issues predomin ate over individual issues; (2) whether the plaintiff’s claims are typical of

the class he or she see ks to represent; and (3) whether the plaintiff is an adequate class

representative. ( Id. at p. 651 ; Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435

( Linder ) .)

T he CLRA contains its own provision for class actions

, similar in many respects to

the req uirements just cited, under which a court must certify a class whe n : “(1) It is

impracticable to bring all members of the class before the court

. [¶] (2) T he questions of

law or fact common to the class are substantially similar and predominate over the

questions affecting the individual members

. [¶] (3) T he claims or defenses of the

representative plaintiffs are typical of the claims or defenses of the class

. [ and ] [¶]

(4) T he representative plaintiffs will fairly and adequately protect the interest s of the

class.” (Civ. Code, § 1781, subd. (b).)

B. Standard of Review

“ On review of a class certification order, an appellate court ’ s inquiry is narrowly

circumscribed. ‘ The decision to certify a class rests squarely within the discretion of the

trial court, a nd 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

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

discret ion in granting or denying certification. ” ’ ” ( Brinker Restaurant Corp. v. Superior

Court (2012) 53 Cal.4th 1004

, 1022 ( Brinker ) .) “ But b ecause group action also has the

potential to create injustice, trial courts are required to ‘ “carefully weigh resp ective

benefits and burdens and to allow maintenance of the class action only where substantial

benefits accrue both to litigants and the courts.” ’ ” ( Linder

, supra , 23 Cal.4th at p. 435 .)

6A 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. ( Id. at pp. 435

– 436. )

In addition, we must examine the trial cou rt’s stated reasons for denying class

certification. ( Linder

, supra , 23 Cal.4th at p. 436.) “ ‘ Ordinarily, appellate review is not

concerned with the trial court’s reasoning but only with whether the result was correct or

incorrect. [Citation.] But on appeal from the denial of class certification, we review the

reasons given by the trial court for denial of class certification, and ignore any

unexpressed grounds that might support denial. ’ ” ( Thompson

, supra , 217 Cal.App.4th at

p. 72 6 .) On the other h and, w e may not reverse simply because some of the court ’ s

reasoning was faulty, so long as any of the stated reasons are sufficient to justify the

order. ( Ibid ., citing Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178

Cal.App.4th 830, 843

– 844 ; see also Sav

- On

, supra , 34 Cal.4th at pp. 326

– 327.)

C. The Trial Court Did Not Apply the Wrong Legal Standard in Finding

T here W as N o Ascertainable Class for Noel’s UCL and FAL Claims

.

Bringing forth evidence to show the proposed class w as ascertainable was Noel’s

burden. ( Sav

- On

, supra , 34 Cal.4th at p. 326 [ “ [ t ] he party seeking certification has the

burden to establish the existence of both an ascertainable class and a well

- defined

community of interest among class members ”].) The trial court decided Noel failed to

carry that burden

. It did not abuse its discretion or misappl y the law.

Noel insists the class was ascertainable because the class definition was clear and

simple: “All persons who purchased the Ready Set Pool at a Rite Aid store located in

C alifornia within the four years preceding the date of the filing of this action [ i.e

. , November 18, 2013].” He cites cases such as Global Minerals & Metals Corp. v.

Superior Court (2003) 113 Cal.App.4th 836, 858, which advise s : “In attempting to

define an ascertainable class, the goal 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. ’ ”

7Noel’s emphasis on preci sion of d rafting is not in correct, but it is somewhat beside

the point. Precision of definition chiefly comes into play if the defendant claims the class

definition is overbroad or otherwise flawed . Here Rite Aid ’s opposition to class

certification did n ot turn on the class definition, but rather the lack of records through

which to identify class members. Noel failed to articulate and support with evidence any

means of identifying potential class members , as required by case law

. ( Sotelo

, supra ,

207 Cal.App.4th at p. 648 .) As noted above, “ [i] n determining whether a class is

ascertainable, the trial court examines the class definition, the size of the class and the

means of identifying class members

. ” ( I bi d .)

Instead of arguing he met the three

- fa ctor Sotelo standard by p ointing to a realistic

method by which class members might be identified, Noel takes issue with Sotelo itself. 6

He takes the position he was not required to make such a showing, and the trial court

committed legal error by placing that burden on him.

Noel claims the correct standard of ascertainability is that set forth in Estrada v.

FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 14 ( Estrada ) : “ The 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 as

having a right to recover based on the description

. ” (Italics added.) Relying on his

attorneys’ draftsmanship and Rite Aid’s identification of the precise number of pools

sold , Noel contends h e has identified an ascertainable class

. B ut w e do not agree with the

myopic analysis upon which that argument rests

. As Sotelo pointed out, “ T he theoretical

6 Though the Sotelo test is criticized by Noe l, who treats it as an outlier, Sotelo is not unique in employing the three

- factor test of ascertainability. In fact, the three

- factor test did not originate with Sotelo , but rather has been used when appropriate for many years. (See, e.g., Reyes v. Boar d of Supervisors (1987) 196 Cal.App.3d 1263, 1274 ( Reyes ) ; Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, 1207 .) In our own division, we have cited with approval the same three

- factor test in the recent past. ( Nicodemus v. Saint Franc is Memorial Hospital (2016) 3 Cal.App.5th 1200, 1212 ( Nicodemus ).)

8ability 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.)

In Estrada , delivery truck drivers for FedEx Ground Package System, Inc.

(FedEx) , who owned their own trucks, sued FedEx for reimbursement of certain job

related expenses. With regard to certification, t he main dispute on appeal did not involve

t he adequacy of the class de finition, which (through various iterations in the trial court)

was precise

, limiting, and allow ed for self

- identification

. The real dispute was whether,

because of the legal requirements of the underlying causes of action , the claims against

FedEx would require proof by individual members of the class, or whether instead

“common questions of law or fact [ would] predominate.

. . . ” ( Estrada

, supra , 154

Cal.App.4th at p. 14 .)

“ The trial court defined the certified class to include present and former drivers

who personally perform or performed pickup and delivery services for FedEx on a full

time basis in a single work area or route (SWA ’ s). Drivers who operate or operated in

multiple work areas or routes (MWA ’ s), corporate entities, and others were excluded

from the class. ” ( Estrada

, supra , 154 Cal.App.4th at p. 4, fn. 1 .) That narrow definition

left 209 d rivers within the class, so that a limited number of individuals needed to be

identified. The court found the class ascertainable, and rightly so. Presumably FedEx

would know the identities of its drivers and former drivers and its records would so

rev eal

. ( Id . at p

. 14 .) The issue here is different and pertains to ascertainability.

R ite Aid relies on Sotelo

, supra , 207 Cal.App.4th 639 , which we regard as a more

de manding standard than that described in Estrada

, as well as a more pragmatic approach

in determining ascertainability , and one which comports with the rationale underlying the

ascertainability requirement

. “ The ascertainability requirement is a due process

safeguard, ensuring that notice can be provided ‘ to putative class members as to who m

the judgment in the action will be res judicata. ’ [Citation.] ‘ Class members are

“ ascertainable ” where they may be readily identified without unreasonable expense or

time by reference to official records. [Citation.] ’ [Citation.] In determining whet her a

9class is ascertainable, the trial court examines the class definition, the size of the class

and the means of identifying class members. ” ( Sotelo, at p p

. 647

– 648 , italics added .)

In Sotelo

, the plaintiff s sought to certify a class of people 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.’ ” ( Sotelo

, supra , 207 Cal.App.4th at p. 645.) Defendants

had records identifying some 5,000 people who had signed a contract with a newspaper

,

but because putative class members hired others to assist with the work , the actual size of

the proposed class and the identities of some class members w ere unknown. ( Id . at

p. 646.)

The trial court in Sotelo denied certification, and Division Two of this District

affirmed because the “ ‘ lack of objective evide nce (such as business records) that indicate

class membership’ ” led to “ ‘ an actual obstacle to identifying persons ’ ” who fell within

the defined class. ( Sotelo

, supra , 207 Cal.App.4th at pp. 648

– 649

. ) S otelo found th e

“lack of records identifying carriers and their helpers” reason enough to affirm the trial

court’s order because the plaintiffs had not devised a means of noti fying unknown class

members of the pendency of the action. ( Id. at p p

. 639, 649

– 650 .) The plaintiffs in

Sotelo argu ed that m embers of the class could be identified by reference to distributors’

records of which individuals had performed the jobs described in the class definition

, but

the C ourt of Appeal dismissed th at argument because there was no evidence the

newspaper distributors maintained such records. ( Id. at p. 649. ) The plaintiffs in Sotelo

also argued the class was ascertainable because class members could be contacted and

self

- identified by “posting notices in respondents ’ facilities.” ( I bi d

. ) Again, Divisio n

Two rejected this suggestion

, apparently regarding it as too haphazard a means of notice

. ( I

bi d .)

The issue in this case is similar. Noel submitted no evidence the class members

could readily be identified

— or identified a t all

— from Rite Aid’s records. He pointed to

Rite Aid’s interrogatory responses relating the number of pools sold (20,752)

, the number

10of pools returned (2,479)

, and Rite Aid’s gross revenue from sale of the pools

( $949,279.34)

, but submitted nothing offe ring a glimmer of insight into who purchase d

the pools or how o ne might find that out. He neither described nor produced Rite Aid’s

records from which these numbers were derived, n or did he indicate how much other

information those records might reveal. Unless Noel could propose some realistic way of

associating names and contact information with the 20,000

- plus transactions identified by

interrogatory response , there remained a serious due process question in certifying a class

action

.

While Noel was no t required to actually identify the 20,000

- plus individuals who

bought pools, his failure to come up with any means of identifying them was a legitimate

basis for denying class certification . T he 2,479 people who returned their pools

presumably would be e xcluded from class recovery, but the court had no evidence

concerning whether or how that subset could be identified

. Addressing the issue of

notice in his moving papers below, Noel hypothesized that class members could be

notified through Rite Aid’s rewa rds program or email lists (numbers of entries not

revealed)

, without explaining, much less proving, how any cross

- referencing between the

class members ’ transactions and the names on those lists might be achieved to allow for

personal notice

. He might ha ve assumed notice would be by broadcast email or

publication in advertising flyers, which would be both overinclusive and underinclusive,

but it is not clear the trial court shared that assumption. Noel acknowledges on appeal

that individual class members must eventually be identified, but he does so only to the

extent that class members would have to prove their identities to share in the judgment

.

T hat does not address the due process notice issue at all. And the means of notice he

proposed would not have resulted in the “vast majority” of those notified being

, in fact,

class members. ( Cf. Medrazo v. Honda of N orth Hollywood (2008) 166 Cal.App.4th 89,

101 .)

Though Noel would have us treat Sotelo as a mi sguided aberration from the true

self

- identification test under Estrada

, he misreads those cases

. The tests employed in

Sotelo and Estrada are not incompatible . Indeed, the two tests are often cited side

- by

11side in the same opinion. ( See, e .g., Hefczyc v. Rady Children’ s Hospital

- San Diego

(Nov. 17, 2017, D071264 ) ___ Cal.App.5th ___ [2017 D.A.R. 10982, 10987 , 2017

Cal.App. Lexis 1016, *25 ] ; Nicodemus

, supra , 3 Cal.App.5th a t pp. 1212, 1217; Aguirre

v. Amscan Holdings, Inc. (2015) 234 Cal.App.4th 1290

, 1 299

– 1300 & fn. 6 ( Aguirre );

Sotelo

, supra , 207 Cal.App.4th at p. 648.) Rather, we see Sotelo ’s three

- factor test as a

refinement of the ascertainability prong of the Estrada test when that prong of the test

requires a closer look

.

To the extent Noel ackn owledges the test employed by Sotelo h as any validity, he

suggests it should be restricted to employment class actions and held inapplicable to

consumer class actions. Rite Aid, for its part, suggests cases employing the Estrada test

involved either a pre

- existing contractual relationship between the defendant and

members of the class or cases of shoddy recordkeeping in which the defendant was under

a legal obligation to keep records. We think it inappropriate to pigeonhole either test for

use only in a specific categor y of subject matters. In stead, the utility of one test or the

other should turn on how the parties have framed the issues in an individual case based

on their pleadings

, briefs

, and evidence in the class certification proceedings . When the

defendant claims the class definition is overinclusive or ambiguously worded , the

Estrada test may provide the best analytical framework

. W hen the defendant’s

opposition to certification is based on inability to ascertain the identity of class members

due to a lack of records , t he three

- part test used in Sotelo may better serve

. The trial

court did not abuse its discretion or act contrary to law when it denied class certification

based on Noel’s failure to show a means of identifying class members , as authorized by

Sotelo

. 7

We note Sotelo was criticized by Aguirre

, supra , 234 Cal.App.4th 1290

, decided

by the Third Appellate District near the time briefing in this case was coming to a close,

and not cited by either party

. At our request, however, the parties did address the impact

7 The court did not cite Sotelo or any other case in support of its reasoning. That is irrelevant, however, because its reasoning was supported by Sotelo and similar cases.

12of Aguirre at oral argument. Aguirre held a class p laintiff need not identify individual

class members or specify a means to personally notify such members before attaining

class certification

. ( Id

. at p. 1301.) P laintiff there brought a class action against Party

America, alleging the company had violated Civil Code section 1747.08 by requesting

and recording California customers’ ZIP C odes in conjunction with credit card

transactions over a three

- year period

. ( Id. at p p

. 1293

, 1296.) The trial court denied class

certification because the class plaintiff had been unable to specify a means to “ clearly

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

money ” where the class size was expected to be about one million. ( Id

. at p p

. 1293,

1298

– 130 2 .) The Court of Appeal reversed, holding the third criterion under Sotelo

—
establishing a “means of identifying” class members at class certification

— d id not

require a class plaintiff to prove there is a way to give absent class members personal

notice. 8 ( Id . at p. 1301 .)

The thrust of Aguirre wa s that the “means of identifying” class members under the

three

- part test used in Sotelo require d only that there be a means for class members to

identify themselves when i t became necessary to prove class membership or damages to

partake in the judgment , just as Noel argues here

. ( Aguirre

, supra , 234 Cal.App.4th at

p p

. 1299

– 1306 .) Aguirre itself re cited the same three

- factor test used in Sotelo , except it

added to the third factor that the court need only consider “ ‘ the means available for

identifying class members’ at the remedial stage .” ( Id . at p. 1300, italics added.) It thus

grafted onto an old rule a new limitation, reasoning that any consideration of identifying

class members for notice purposes at the class certification stage would sound the death

knell of consumer class actions. ( Id

. at p. 1301

, quoting 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

8 A panel of th is Division cited these aspects of Aguirre with approval in

Nicodemus

, supra , 3 Cal.App.5th at page 1212, but decided the case by rejecting a claim of overinclusiveness. ( Id . at pp. 1213

– 1217.) Nicodemus ’s citation to Aguirre was dictum

.

13consumer class action.’ ”].) T he Third District con clu ded the trial court had applied an

“erroneous legal standard” and “improper criteri a ” by requiring the class plaintiffs to

“ clearly identify, locate and notify class members through a reasonable expenditure of

time and money ” at the class certification stage. ( Id

. at p p

. 1293, 1298

– 1301, 1306.)

Aguirre reasoned that requiring a class plaintiff to identify “ a means for providing

personal notice of the action to individual class members ” would “conflict with” the

notice by publication provisions applicabl e to class actions. ( Aguirre

, supra , 234

Cal.App.4th at p. 1301.) Aguirre cited “ the liberal notice provisions contained in

California Rules of Court, rule 3.766(f)

, ” in support of its rejection of Sotelo ’s

requirement that the plaintiffs prove a means o f identifying potential class members for

personal notice. Aguirre emphasized that rule 3.766(f), in addition to allowing notice by

publication when personal notice is “ ‘ unreasonably expensive ’ ” or the individual losses

are “ ‘ insubstantial, ’ ” also all ows for notice by publication or similar means “ ‘ if it

appears that all members of the class cannot be notified personally

. . . .’ ” (234

Cal.App.4th at p. 1301 , italics omitted .) We agree the rule anticipates that some class

actions must dispense with personal notice, but the wording of the rule clearly implies

that personal notice is the preferable method. 9

The opinion in Aguirre seems to assume that personal notice could be, even should

be, disregarded completely at the class certification stage. The pu tative class in Aguirre

numbered about a million. ( Aguirre

, supra , 234 Cal. App. 4th at p p

. 129 5

, 1302, fn. 7 .)

With a class that large, perhaps assuming personal notice cannot be given was realistic,

but with a class size of 20,000 we are not so quic k to make that assumption. In fact, i t

seems to us that in the context of a proposed class of this size or even larger

— as in

9 Rule 3.766(f) provides: “ Court may order means of notice 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

trad e or professional association, union, or public interest group .”

14Aguirre

— the due process concerns implicated by the ascertainability prong of the class

certification test are heightened, and as a result, the issue of whether there are feasible

means for giving proposed class members notice deserves even greater scrutiny than it

does for smaller p utative classes

. ( See, e .g.
, Estrada

, supra , 154 Cal.App.4th at p. 1 4

. )

With fewer putative class members, the likelihood of their receiving notice, by whatever

means is chosen, often may be more readily apparent. Thus, as we see the issue, before a

trial court certifies a class, the court should be allowed to inquire into th e expected

manner of notice, including whether class members can be identified for personal notice.

The court may insist upon personal notice, depending on the circumstances. We draw no

bright lines, and leave much to the discretion of the trial court, b ut we prefer this more

pragmatic and flexible approach to a blanket rule prohibiting trial courts from considering

notice issues altogether at class certification proceedings.

Indeed, California Rules of Court, rule 3.766(c) (3)

, provides that the trial cou rt

must, “[u]pon certification of a class, or as soon thereafter as practicable,” issue an order

regarding class notice, including “[t]he time and manner of notice [

. ] ” To suggest, as

Aguirre did, that the trial court must blind itself to the manner of not ice until after the

conclusion of the certification proceeding appears to run counter to this provision of the

rule and to bind unduly the trial court’s hands in determining notice issues.

Aguirre held a “ representative plaintiff need not identify, much l ess locate,

individual class members to establish the existence of an ascertainable class. ” ( Agui rre,

supra, 234 Cal.App.4th at p. 1301.) “ Nor must the representative plaintiff establish a

means for providing personal notice of the action to individual class members,” the court

explained. ( Ibid. ) This language is more absolute than we find comfortable. We do not

endorse the view that individual members of the class must be identified by name at the

time of a class certification motion, but we do not th ink it violates class action doctrine or

public policy to require some showing of a means of identifying them and a description of

how notice might be given. The court may require personal notice in a specific case,

depending in part on the amount of loss at stake for each individual class member and the

size of the class.

1 5Aguirre acknowledged, as have other cases, that the purpose of the ascertainability

requirement is the due process concern of facilitating notice to the class. ( Aguirre

, supra ,

234 Cal .App.4th at pp. 1300

– 1301.) That being so, we do not think a trial court should

be pr ecluded from inquiring into the means of giving notice at the class certification

stage. Yet, the only inquiry into identity of class members allowed under Aguirre is to

determine whether the class will be ascertainable “at the remedial stage” based on self

identification. ( Id. at p. 1300.) To ignore the issue of identifying class members for

notice purposes gives short shrift to the due process considerations in play at the

certification stage

, a consequence of the holding of Aguirre in which we do not concur

. Aguirre relied in large part on Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695

, in

which the proposed class was all Yellow Cab taxi users in the four years prior t o the

filing of the action who were subjected to “ overcharges allegedly made by defendant ” by

setting its cabs’ meters to a rate higher than that approved by the Public Utilities

Commission

. ( Id

. at pp. 699

– 700

, 706 .) Plaintiff had identified two classes of taxi riders:

those who paid with Yellow Cab script and those who paid in cash. ( Id. at p p

. 700, 713

–
714.) With respect to th e script class, plaintiff alleged “ the names and addresses of all

purchasers and users of script books can be definitely ascer tained from [Yellow Cab’s]

books and records

. . . . ” ( Id. at p. 700.) Thus, the plaintiff had, at least with respect to the

script users, alleged in the complaint the means of identifying class members. Of course,

identifying the cash users of cabs would be much more problematic, and the Supreme

Court did not address this fact, leading Aguirre to conclude that identification of class

members was not required. ( Aguirre

, supra , 234 Cal.App.4th at p. 1301 .) But Daar was

decided on demurrer, when the plaintiff’s allegations must be accepted as true ( 67 Cal.2d

at p. 713)

, and when plaintiff had obtained no discovery and so could not be expected to

identify class members or designate a means of notice. 10

10 Aguirre also relied on Reyes

, supra , 196 Cal.App.3d at page 1274, quoting, “it is firmly established a plaintiff is not required at this stage of the proceedi ngs to establish

the existence and identity of class members.” ( Aguirre

, supra , 234 Cal.App.4th at

p. 1301.) Reyes reversed the trial court’s denial of a class certification motion where the

16Noel, even after having had an opportunity to conduct discovery, presented no

evidence of a practical or even viable means of identifying the individuals associated

with the more than 20,000 transactions disclosed by Rite Aid’s sales records for purposes

of giving them notice. He has not attempted to prove or even explain how Rite Aid’s

records might be mined for evidence of customer identity or cross

- referenced with other

available evidence to obtain the identities of the purchasers of the Ready Set Pool or any

means of contacting them. Nor has he establis hed that personal notice cannot be given.

On this record, the trial court made no finding that the proposed class was

unascertainable on any conceivable set of facts; rather , what the court concluded was that

the class cannot be ascertained on the evidentiary showing Noel made, which lacked any

level of assurance that there is an available means to notify putative class members of the

pendency of the action

— at the beginning of the proceeding , rather than at the end when

all is said and done. We cannot say th e court’s call denying certification in these

circumstances was an abuse of discretion.

Our holding on this point

, we realize, may be contrary to that of Aguirre

. But i n

view of the deference owed the trial court and the anemic showing by Noel, we see the

issue somewhat differently than our Third District colleagues saw it on the record

presented there. We hasten to add that we do not view the modest evidentiary burden

that was imposed in this case as something so onerous that it must p ortend the end of

“ ‘ “ such thing as a consumer class action .” ’ ” ( Aguirre

, supra , 234 Cal.App.4th at

pp. 1 301 .) We view it instead as something that, with proper foresight in the early stages

of a class proceeding

, can be addressed quite easily

, espe cially if it is given the same

level of care and attention as, for example, drafting a precise description of the class.

Wh at occurred here provides an object lesson in the risks of brushing the issue aside in

connection with class certification and leaving it to be addressed at the conclusion of the

proceedings

.

reason for the denial was the claimed excessive expense and effort involved in identifying cla ss members, not a lack of records that would allow them to be identified. ( Reyes

, at pp. 1274

– 1276 .)

17D. The Trial Court Did Not Apply the Wrong Legal Standard Under the

CLRA in Determining T hat Class Claims Do Not Predominate O ver Individual Claims

.

The CLRA c ause of action based on fal se advertising require d proof of reliance

and harm as to each class member ( Tucker v. Pacific Bell Mobile Services (2012) 208

Cal.App.4th 201, 221

– 222 ( Tucker ) )

, w hereas the UCL and FAL require d such proof

from class representatives but not absent class me mbers ( Sevidal v. Target Corp. (2010)

189 Cal.App.4th 905, 923

– 924 )

. The CLRA’s more demanding proof requirement

accounted for the trial court’s finding that class issues did not predominate over

individual issues on the CLRA cause of action

.

A consumer may satisfy his or her burden of showing causation under the CLRA

by showing materiality of the illegal act

. ( In re Vioxx Class Cases (2009) 180

Cal.App.4th 116, 129 ( Vioxx ) .) A representation is considered material if it “ induced the

consumer to alter h is position to his detriment. ” ( Ibid .) When the consumer shows the

complained

- of mis representation would have been material to any reasonable person, he

or she has carried the burden of showing actual reliance and causation of injury for each

member of t he class. As some court s have put it, the plaintiff may establish “ ‘ causation

as to each by showing materiality as to all. ’ ” ( Mass achusetts Mut ual Life Ins. Co. v.

Superior Court (2002) 97 Cal.App.4th 1282, 1292

. )

Conversely , if the issue of reliance or causation is a matter that would vary from

consumer to consumer, the issue is not subject to common proof, and the action is not

properly certified as a class action. ( Tucker

, supra , 208 Cal.App.4th at p. 222 ; Davis

Miller v. Automobile Club of Souther n California (2011) 201 Cal.App.4th 106, 1 2 2

– 12 3 ;

Vioxx

, supra , 180 Cal.App.4th at p. 129 ; Caro v. Procter & Gamble Co. (1993) 18

Cal.App.4th 644, 668 .) Thus, i n arriving at its conclusion s about commonality and

predominance , the trial court was required to predict whether the issues of reliance and

causation would end up being common issues that could be litigated on a classwide basis

or individual issues that would splinter any class action into multiple mini

- trials.

18Judge Haakenson determi ned Noel’s CLRA cause of action did not predominantly

involve common issues

. As we read the court’s order, it concluded both reliance and

causation were individual issues not amenable to class litigation.

The trial court reasoned that some members of the class may not have relied on the

photograph in purchasing their pools , and might instead have relied on the advertised

8’ x 25” size of the pool, also prominently displayed on the box. Because “to obtain

relief under the CLRA, both the named plaintiff and unnamed class members must have

suffered some damage caused by a practice deemed unlawful under” th at act ( Steroid

Hormone Product Cases

, supra , 181 Cal.App.4th at pp. 145, 156) , the trial court

concluded it would need to find materiality of the photog raph “as a matter of law” before

it would be required to certify the class under the CLRA. Noel challenges this statement

as legally incorrect.

We might not characterize the determination in just th e way Judge Haakenson did

, but we think his order implie d a substantial number of pool purchasers, not merely a

handful, may have been motivated by the dimensions of the pool rather than by the photo.

The court ’s conclusion about what c ould influence pool buyers’ purchasing decisions was

not an unreasonable in ference from the evidence. T he court’s entire discussion of

materiality and commonality show ed it did not misunderstand the decision it was called

upon to make. And because materiality had not been demonstrated on a classwide basis,

the court concluded c ausation, too, was an individual issue.

Noel contends the court required him, in effect, to prove the merits of his CLRA

claim, which he insists wa s not required at the cert ification stage. We agree the merits

are not to be resolved at class certificatio n ( Brinker

, supra , 53 Cal.4th at p. 1023) , but

that is not what happened here. “ Presented with a class certification motion, a trial court

mu st 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. ” ( Id

. at p. 1025.)

Because the mer its of Noel ’s claims we re intertwined with issues pertinent to class

19certification, there w as no error in considering Rite Aid’s evidence insofar as relevant to

the questions raised by the class certification motion. ( Id . at pp. 1023

– 1024; Dailey v.

Sears , Roebuck & Co. (2013) 214 Cal.App.4th 974, 990

– 991; Quacchia v.

DaimlerChrysler Corp. (2004) 122 Cal.App.4th 1442 , 1447

– 1448, 1454 .) The court’s

ruling d id not require Noel to prove the merits of his cause of action ; it wa s a simple

,

evidence

- based prediction that disputed issues at trial were more likely to be individual

than common. The ruling neither included nor arose from a finding that Noel’s claim

lacked merit , and in fact the court reached the opposite conclusion, finding that Noel had

raise d a triable issue on the merits

.

E. The Court Did Not Abuse Its Discretion i n Finding a Class Action Was Not Superior t o Litigation o f Individual Claims

.

The trial court also found a class action would not be “superior” to individual

litigation of the claim s asserted by Noel. Noel was not required to show a class action

was superior to individual litigation under the CLRA to have his certification motion

granted , but such a showing was required for the FAL and UCL claims. ( Thompson

,

supra , 217 Cal.App.4th at pp. 727

– 728 .) Having rejected Noel’s claims of legal error, we

also reject the contention that the court abused its discretion in making this final

determination. It is not clear from the court’s order to which causes of action this finding

pertains. If the court intended to include lack of superiority as a reason for rejecting class

certification on the CLRA cause of action , that was error , but harmless due to the other

valid reasons for denying class certification

. If the court intended its negativ e superiority

finding to apply only to the FAL and UCL causes of action , then it was supported by the

evidence and did not amount to an abuse of discretion.

F. The Court Did Not Abuse Its Discretion by Denying a Continuance

. As indicated above, it appears to us the class certification motion failed in large

part because Noel’s counsel filed the motion without first taking sufficient discovery to

know what records Rite Aid kept or how the purchasers of the pools could be identified

through those records , or ot herwise . As a consequence, when it became apparent during

the hearing that Noel might lose the motion, Noel’s newly retained counsel made the

20following comments: “[E]very certification of a class is conditional. And so if we get

down the path here and w e focus on the next phase here, the ascertainability issues, and if

in fact the evidence shows that the class is not ascertainable, it can be decertified at that

time. [¶]

. . . [I]f the Court has concern that it is not able to reach the decision on

ascert ainability at this point, I can’t speak to the discovery that was conducted by prior

counsel; but I would request that given the opportunity to conduct discovery on this

ascertainability issue, I am certainly happy to do that and then we can actually put t he

evidence before the Court if it feels like it needs anything more.”

Noel characterizes Wimmer’s quoted statement as a request for a continuance to

conduct further discovery before ruling on the motion, though he never used the word

“continuance.” Rite Aid questions whether it even q ualifies as such. A t the hearing in

the trial court, Rite Aid’s counsel apparently understood Wimmer’s position to be that

the class certification motion should be granted, with discovery to be conducted

thereafter to suppo rt the ascertainability requirement

. Wimmer incorrectly

characterized “the ascertainability issues” as the “next phase” of the proceedings

— as if

ascertainability were a separate inquiry not to be addressed at the class certification

hearing . Rite Aid’s c ounsel said: “There is a reason why there is a class certification

hearing. That ’ s because the C ourt has an obligation to look at the evidence presented by

the plaintiff and determine whether or not the plaintiff [has] satisfied the burden of

meeting the class action requirements. You don ’ t just certify a class and then wait for

the defendant to mak e a decertification motion. [¶] So I think basically without quite

saying it, I think plaintiff’s counsel is virtually admitting to you that, well, okay, we

don’t have [evidence on] that issue. We could do some discovery. Well, that is not how

it works. We tried to get plaintiff ’ s counsel not to bring this motion so soon. Plaintiff’s

counsel insisted on bringing this motion now. So here we are. The Court has got the

evidence that it has before it, and what is the evidence before the Court on

ascertain ability. Nothing.”

Even assuming Wimmer’s ambiguous statement were to be understood as a

request for a continuance, the trial court did not err in denying the request. A trial court

21has broad discretion to grant or deny a continuance, and its discretion will be reversed

only when an abuse of discretion is clear. ( Link v. Cater (1998) 60 Cal.App.4th 1315,

1321 .) Noel acknowledges the trial court had discretion in granting or denying a

continuance to conduct further discovery on ascertainability, but he argues the court was

required to exercise it liberally , citing Safaie v. Jacuzzi Whirlpool Bath, Inc. (2011) 192

Cal.App.4th 1160

. Safaie did state that because a class certification motion may not be

renewed, “[t]o ensure fairness to the class action pla intiff, trial courts are required to

liberally grant continuances and ensure a plaintiff has the opportunity to make a complete

record before the court rules on class certification.” ( Id. at p. 1171.) But we see nothing

in the record showing that Noel wa s not given such an opportunity

. T hat his attorneys

decided not to avail themselves of the opportunity must be regarded as a tactical decision

on their part and not judicial error.

Noel’s counsel was in control of the litigation ; no one forced hi m to file a

premature class certification motion. “ Plaintiffs lacking adequate evidence on class

issues may reasonably defer moving to certify or seek a continuance to gather evidence,

and trial courts should avoid ruling on the merits until satisfied that a plain tiff has had a

fair opportunity to present the case for certification. ” ( Stephen v. Enterprise Rent

- A

- Car

(1991) 235 Cal.App.3d 806 , 814.) In fact, though, neither Safaie nor Stephen actually

involved a request for a continuance, and though we do not disagree with their dicta

encouraging liberal granting of continuances in class actions , the request for a

continuance must at least be made comprehensibly enough to allow the court to kn ow

that a continuance is being requested. And the request for a continuance must be timely

made, not made in the midst of a hearing on class certification when counsel suddenly

realizes h e does not have the evidence to support his required showing

. Liber ality need

not be extended to the point that the court protec ts the putative class plaintiff s ’

entitlement to an opportunity for a fair hearing at the expense of the defendant ’ s right to

orderly process in opposing class certification. (See Howard Gunty P rofit Sharing Plan

v. Superior Court (2001) 88 Cal.App.4th 572 , 580

– 582 [appellate court vacated open

22ended continuance granted by the trial court so that putative class counsel could solicit an

appropriate class plaintiff ] .)

Although Noel retained new co unsel between the filing of the motion and the

hearing on it, nothing compelled Wimmer to proceed with the motion if he concluded

insufficient discovery had been conducted

, or he did not have time to prepare for the

hearing

. Wimmer could have withdrawn th e pending motion and conducted further

discovery before refiling it. Alternatively , he could have requested a continuance of the

hearing on the class certification motion to allow him to review the discovery already

taken and to supplement it if he though t it necessary to carry his burden in representing

the putative class. Being new to the case, it seems highly likely the court would have

allowed him time to conduct further discovery if he had made the request before the

hearing on the previously filed m otion.

Because Noel’s counsel were responsible for the timing of the motion

, it was not

an abuse of discretion to hold them to the proof of facts necessary to certify the class.

That class actions are generally favored ( City of San Jose v. Superior Court (1974) 12

Cal.3d 447, 457 ) is not reason enough to mandate that Noel’s attorneys be allowed to

press forward with the hearing on the motion and then abandon it mid

- hearing in favor of

conducting further discovery. T he required showing should have come as no surprise, as

Sotelo and other cases employing the three

- part test of ascertainability had been on the

books for years. Just as we are not inclined to overturn the denial of certification, w e

cannot say the trial court abused its discretion by failing to grant a continuance in the

midst of the hearing

.

III. DISPOSITION

The order denying class certification and denying a continuance for the taking of

further discovery is affirmed. Rite Aid shall recover its costs.

23_________________________ Streeter, J.

We concur:

_________________________ Ruvolo, P.J.

_________________________ Rivera, J.

A143026 / Noel v. Thrifty Payless, Inc.

24A143026/Noel v. Thrifty Payless, Inc.

Trial Court: Marin County Superior Court

Trial Judge: Paul M. Haakenson , J.

Counsel: Emergent Legal, Emergent and Christopher Wimmer for Plaintiff and Appellant

.

Kelly, Hockel & Klein, Klein, Hockel, Iezza & Patel, Michael D. Early and Mark P. Iezza for Defendant and Respondent

.

25