Filed 3/14/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

TERENCE SCHOSHINSKI et al.,

Plaintiffs and Appellants,

v.

CITY OF LOS ANGELES,

Defendant and Respondent.

 B269431

 (Los Angeles County

 Super. Ct. No. BC459269)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Elihu M. Berle, Judge. Affirmed.

Marlin & Saltzman, Stanley D. Saltzman, Stephen P. 

O’Dell; The Hamideh Firm and Bassil A. Hamideh for Plaintiffs 

and Appellants.

Michael N. Feuer, City Attorney, Thomas Peters, Chief 

Assistant City Attorney, A. Patricia Ursea, Deputy City Attorney, 

for Defendant and Respondent.

______________________
2

In 2012, the City of Los Angeles settled Chakhalyan v. City 

of Los Angeles (Chakhalyan), a class action lawsuit. The suit

alleged the City had an unlawful practice of charging a trash 

disposal fee to customers living in multi-unit dwellings who 

received no trash disposal services from the City. Cunningham v. 

City of Los Angeles, another class action lawsuit asserting similar 

allegations, was simultaneously pending. The named plaintiff, 

Brian Cunningham, did not opt out of the Chakhalyan class or 

exclude himself from the settlement. Following approval and 

finalization of the settlement in Chakhalyan, the City 

successfully moved for summary judgment of Cunningham’s 

claims. However, the trial court permitted Cunningham to 

amend the complaint to add two additional named plaintiffs. 

The two new plaintiffs, Terence Schoshinski and Thomas 

Ballatore (collectively “plaintiffs”), also alleged the City 

unlawfully charged them and others the trash disposal fee. 

The City again moved for summary judgment, offering evidence 

that in connection with an injunctive relief provision in the 

Chakhalyan settlement, the City had already reimbursed the 

plaintiffs for all improper charges. The City argued plaintiffs’

claims were now moot and they lacked standing to prosecute the 

action. The trial court agreed and granted summary judgment.

On appeal, plaintiffs argue the trial court erred in 

concluding they could not continue representing the class defined 

in their complaint. Plaintiffs assert their individual claims are 

not moot because they did not receive all of the relief they 

demanded in their complaint. They also rely on caselaw 

indicating a defendant’s attempts to unilaterally resolve a class 

representative’s claims, or “pick off” the representative, do not 
3

necessarily eliminate that plaintiff’s standing to continue 

prosecuting claims alleged in a class action complaint. 

We conclude plaintiffs’ individual claims are moot because 

a court could grant them no further relief beyond what they have 

already received. Further, unlike other cases in which the “pick 

off” exception has been applied, here, the injunctive relief 

provisions in the Chakhalyan stipulated settlement and 

judgment required the City to reimburse plaintiffs and other 

putative class members. The City complied with this obligation 

before plaintiffs filed the second amended complaint naming 

them as parties. Under these particular circumstances, the “pick 

off” exception does not apply.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2010, Lilith Chakhalyan filed a class action 

lawsuit against the City of Los Angeles alleging it improperly 

collected “solid resource fees” from her and other class members, 

through entities such as the Department of Water and Power 

(DWP) and the Department of Public Works. Chakhalyan 

claimed the City “was improperly billing and collecting Solid 

Resource Fees . . . from herself and others who live in MultipleFamily Dwellings (e.g. apartment buildings). Plaintiff claimed 

that the [fee] collected from her was illegal because the City is 

prohibited from collecting [the fees] from Multiple-Family 

Dwellings . . . if the City does not collect trash from the building.” 

In April 2011, Brian Cunningham filed a separate class 

action suit against the City and various entities (collectively 

“the City”), alleging the City had improperly charged him and 

others the solid resource fee. According to the complaint, in 2001, 

the City settled a lawsuit regarding a fee improperly imposed for 
4

trash collection services, yet it continued unlawfully charging the 

same fee under a different name. 

On June 8, 2012, the trial court conducted a final approval 

hearing, and on June 25, the court entered a final order and 

judgment in Chakhalyan. The judgment adopted the terms and 

conditions of a settlement agreement the parties had entered and 

executed in December 2011. The judgment finally certified a 

class defined as “all customers of the Los Angeles Department of 

Water & Power who, between October 28, 2007 and February 27, 

2012, inclusive, paid [a solid resource fee] Overcharge and who 

did not exclude themselves from the Class.”1

Under the settlement, all class members were entitled to 

full reimbursement of all solid resource fee overcharges paid from

October 28, 2007 through February 27, 2012.

2 The City was to 

pay all class member claims no later than 180 days after entry of 

the final order and judgment; thus, by approximately late 

December 2012.

 

1 The agreement defined solid resource fee “overcharges” as 

“the [solid resource fee] charged to residents of Multiple-Family 

Dwellings who should not have been charged [a solid resource 

fee] at all and/or who should have been charged [solid resource 

fee] at the lower Multiple-Family Dwelling rate instead of at the

higher single-family dwelling rate.” 

2 The settlement created two categories of class members, 

“identified class members” and “self identified class members.” 

Identified class members were to be reimbursed without any 

action on their part. Self-identified class members were required 

to submit a claim within 90 days after the final approval hearing. 
5

The settlement, incorporated into the judgment, also 

provided for injunctive relief. This included the following: 

“(1) The City will alter its billing system, policies and practices to 

ensure that the [solid resource fee] Overcharges are halted and 

do not recur. These alterations have or will include the actions 

set forth in Exhibit G. (2) The City will routinely monitor its 

billing system, policies and practices to ensure that the [solid 

resource fee] Overcharges do not recur. In the event it identifies 

future [solid resource fee] Overcharges through such monitoring, 

the City will promptly and fully reimburse any persons so 

identified according to the City’s refund policy and make further 

appropriate modifications to its billing system, policies and 

practices.” 

Exhibit G, referenced in the agreement, included measures 

such as a billing insert to be sent to all new residential customers 

explaining Bureau of Sanitation rates; the posting of notices 

regarding refunds or credits for solid resource fee overcharges in 

DWP offices and on the DWP website; and ongoing Bureau of 

Sanitation projects related to preventing and correcting billing 

errors.3

 

3 Of particular note here are three measures listed on 

Exhibit G: “No. 5: The Solid Resources Fee (SRF) on residential 

accounts that are newly initiated will be determined by BOS 

[Bureau of Sanitation]. BOS will staff a desk at DWP to work 

alongside DWP staff to ensure accurate SRF Code 

determinations. The DWP will provide electronic confirmation of 

data file changes and provide exception reports to the BOS on a 

monthly basis and correct billing errors within four weeks of 

receipt.” “No. 10: IT staff from BOS are developing an automated 

program to check DWP account data (monthly download data) 

against correction data files sent by BOS to DWP, to assure
6

The judgment additionally provided: “Without affecting the 

finality of this Judgment in any way, this Court hereby retains 

continuing jurisdiction over (a) implementation of the settlement 

and any award or distribution to the Class Members, including 

any dispute regarding an individual’s entitlement to receive a 

settlement benefit or its amount; and (b) all Parties for the 

purpose of enforcing or administering the Stipulation, pursuant 

to C.C.P. § 664.6 or otherwise.” 

In December 2012, the City filed a motion for summary 

judgment in Cunningham. Plaintiffs’ opposition to the motion, 

filed on February 21, 2013, included a declaration from Terence 

Schoshinski. Schoshinksi declared he had been charged, had 

paid, and continued to pay the solid resource fee, despite not 

receiving trash pick-up services from the City for his multi-unit 

residential property. Schoshinski declared he had repeatedly 

contacted the City and requested that it cease charging him the 

fee, to no avail. 

On March 8, 2013, the City issued an over $980 credit to 

Schoshinski’s DWP account. 

On April 9, 2013, Cunningham’s counsel provided the City’s 

counsel a copy of a proposed Second Amended Complaint, which 

named Schoshinksi and Ballatore as plaintiffs. 

On April 16, 2013, the City issued an over $1500 credit to 

Ballatore’s DWP account. 

 

errors remain corrected and fix any that reappear as soon as 

possible.” “No. 11: A dedicated Database Architect will be 

assigned to monitor the automated program for checking the 

status of corrected data files against the DWP account data 

subject to Mayoral and Council approval.” 
7

On April 18, 2013, Cunningham filed an ex parte 

application asking the court to specially set a hearing on his 

motion for leave to file a second amended complaint so that it 

could be considered before or with the City’s motion for summary 

judgment. 

On April 29, 2013, the trial court granted summary 

judgment in favor of the City on Cunningham’s complaint. 

The court concluded the City “offered sufficient evidence to show 

[Cunningham’s] claims are precluded based upon the valid and 

binding Chakhalyan settlement and the doctrines/defense of res 

judicata and lack of standing. [Cunningham] presented no 

evidence to raise a triable issue of material fact.” However, the 

court granted Cunningham leave to file the second amended 

complaint adding Schoshinski and Ballatore as plaintiffs. 

According to plaintiffs, on that day, after the court hearing, they 

learned for the first time that the City had credited their 

accounts for the overcharges they had paid. 

On April 30, 2013, plaintiffs filed the second amended 

complaint. 

In June 2013, the City again moved for summary judgment. 

The City argued res judicata barred Ballatore from pursuing 

some of his claims because he was a class member in the 

Chakhalyan suit. The City further asserted both plaintiffs lacked 

standing because their claims were moot. According to the City, 

the Chakhalyan settlement resulted in a “continuing injunction 

within the court’s jurisdiction, prohibiting and redressing the 

very conduct of which Plaintiffs complain in this lawsuit and 

about which they might claim any standing . . . .” The City 

further argued: “By virtue of these mandatory injunctive 

obligations, the City is required to provide prospective relief to all 
8

individuals it discovers have been mischarged [solid resource fee]

Overcharges, in addition to ceasing the billing of those charges. 

On this basis, Plaintiffs and 852 others have already obtained 

relief regarding SRF Overcharges and Plaintiffs cannot obtain 

any effectual relief, or relief that would not just duplicate the 

already mandatory Chakhalyan obligations.” 

In support of the motion, the City offered declarations from 

several City employees. A City database architect declared: 

“Since conclusion of administration of refunds/credits to selfidentified and identified Chakhalyan class members, in the 

course of my duties as a Database Architect for the Bureau [of 

Sanitation], I continue to review and determine whether there 

are any accounts that need adjustment (i.e. the stopping and/or 

refunds/credits of Solid Resource Fees). I do so consistent with 

the injunctive obligations on the City pursuant to Chakhalyan. 

[¶] To this end, since January 2013, I am aware of 854 such 

accounts for which such adjustments were made, including the 

accounts of Thomas Ballatore and Terence Schoshinski . . . .” 

The declaration was dated June 11, 2013. 

Another City employee declared billing records indicated 

Ballatore paid the solid resource fee from September 11, 2007 

through April 10, 2013; the charges were stopped effective April 

16, 2013, and the City issued a refund/credit on that date for all 

of the solid resource fee charges Ballatore paid from October 2009 

through April 10, 2013. The employee similarly declared billing 

records showed the City stopped charging Schoshinksi the solid 

resource fee effective February 26, 2013, and it issued him a 

refund/credit on March 8, 2013. The declaration concluded: 

“Tom Ballatore and Terence Schoshinksi received the 
9

aforementioned refunds/credits pursuant to the injunctive 

obligations arising from Chakhalyan v. City of Los Angeles . . . .” 

The City also offered the declaration of an employee who, 

in addition to supervising tasks related to claims review for 

Chakhalyan class members, “supervise[s] and/or oversee[s] 

compliance with the injunctive obligations on the city as a result 

of” Chakhalyan. The employee declared: “Consistent with the 

pending injunction, 854 customer accounts, including those of 

Thomas Ballatore and Terence Schoshinksi, have had Solid 

Resources Fee charges stopped and refunds/credits issued.” 

The parties stipulated to narrow the issues presented for 

summary judgment to the City’s assertion that the plaintiffs’

claims were moot and they therefore lacked standing since, prior

to joining the action, they obtained relief pursuant to the 

Chakhalyan injunction.4

Plaintiffs opposed the motion, on these narrowed grounds. 

Ballatore declared he began receiving private trash collection 

services in October 2009. According to Ballatore, the City told 

him in 2009 that he had to pay the solid resource fee, even 

though he was not receiving trash collection services from the 

City. He declared that in 2011, the City again told him he had to 

pay the fee, even after he called in response to a City letter 

informing residents they should not be charged a solid resource 

fee if they lived in a multiple-family dwelling that did not receive 

refuse collection services from the City. Ballatore declared that 

when he received a notice regarding the Chakhalyan settlement

 

4 The parties also stipulated that all of Ballatore’s claims 

would be based on the City’s actions subsequent to February 27, 

2012; in other words, after the close of the Chakhalyan class 

period. 
10

he discarded it. The City charged him the solid resource fee as 

late as April 2013. The credit to his DWP account was applied 

without his knowledge or consent. It appeared on his June 2013 

DWP account statement.5

Schoshinski declared he informed the City in August 2012 

that he was using a private trash collection service for his fiveunit multi-family dwelling. According to Schoshinski, the City 

did not stop charging him the sanitation fee. He did not learn 

until April 29, 2013 that the City had, without his knowledge, 

applied a credit to his DWP account. 

Plaintiffs argued the City did not stop charging them the 

solid resource fee, or attempt to refund the charges, until after it 

learned of their participation in the lawsuit. To support this 

claim, plaintiffs pointed to the timing of the refunds and

plaintiffs’ declarations indicating the refunds appeared on their 

accounts without explanation. They contended there was a 

triable issue of fact as to whether the City had engaged in an 

improper attempt to “pick off” plaintiffs to avoid class action 

litigation and class-wide liability. 

The City stated as undisputed the fact that plaintiffs had 

received a refund for all solid resource fees they were improperly 

charged. Plaintiffs purported to dispute that fact with only the 

following statement: “It is unknown what the credit on [the 

 

5 Plaintiffs attached a June 12, 2013 statement to Ballatore’s 

declaration. The statement reflected electric charges from April 

10, 2013 to June 10, 2013, and cancelled sanitation equipment 

charges. A prior DWP statement was also attached to the 

declaration. The prior statement was dated April 12, 2013. It 

reflected electric charges from February 9, 2013 to April 10, 2013, 

and a sanitation charge from February 9, 2013 to April 10, 2013. 
11

plaintiffs’ DWP accounts] was/is for or whether, if in fact it 

represents a refund, it is accurate.” 

The trial court granted the City’s motion. The court 

reasoned, in part, that plaintiffs received refunds from the City 

after the Chakhalyan settlement was approved and this alone 

appeared sufficient to indicate they lacked standing to act as 

class representatives. The court rejected the “pick off” theory, 

noting the City’s payments were mandatory under the 

Chakhalyan settlement, not voluntary. The court indicated 

plaintiffs offered no evidence to rebut the City’s evidence showing 

the basis of the payments to them was the Chakhalyan 

settlement. The court concluded all of plaintiffs’ claims were 

subsumed by that settlement and it provided all of the relief 

plaintiffs sought, thus plaintiffs had no valid claims.6

This appeal followed.7

 

6 The trial court also invoked res judicata as a basis for its 

ruling. As noted above, the parties had stipulated to narrow the 

issues to mootness and standing; further, in the trial court, the 

City appeared to argue that only some of Ballatore’s claims were 

barred by res judicata. As we resolve this case on other grounds, 

we need not consider the parties’ arguments on appeal regarding 

res judicata.

7 After the trial court issued an order granting the City’s 

summary judgment motion, plaintiffs filed a notice of appeal. 

In August 2015, this court dismissed the appeal for lack of an 

appealable judgment or order. The trial court entered a 

judgment against plaintiffs in November 2015. This appeal 

timely followed. 
12

DISCUSSION

I. Plaintiffs’ Claims Are Moot

Plaintiffs argue that despite the City’s act of reimbursing 

them for the solid resource fee overcharges they paid, their 

individual claims are not moot because they have not received 

complete relief on their claims. They additionally contend that 

even if their individual claims are moot, the “pick off” exception 

to mootness applied, preserving their standing to continue 

prosecuting claims on behalf of others.

We disagree. The undisputed facts established plaintiffs’ 

claims are moot and the “pick off” exception has no application

under the circumstances presented here.

A. Standard of Review

“ ‘Because this case comes before us after the trial court 

granted a motion for summary judgment, we take the facts from 

the record that was before the trial court when it ruled on that 

motion. [Citation.] “ ‘We review the trial court’s decision de 

novo, considering all the evidence set forth in the moving and 

opposing papers except that to which objections were made and 

sustained.’ ” [Citation.] We liberally construe the evidence in 

support of the party opposing summary judgment and resolve 

doubts concerning the evidence in favor of that party. [Citation.]’ 

[Citation.]” (Lonicki v. Sutter Health Central (2008) 43 Cal.4th 

201, 206.) Similarly, standing is a question of law we review de 

novo. (IBM Personal Pension Plan v. City and County of San 

Francisco (2005) 131 Cal.App.4th 1291, 1299.)

B. Standing and Mootness in the Class Action

 Context

“In general, a named plaintiff must have standing to 

prosecute an action. . . . ‘As a general principle, standing to 
13

invoke the judicial process requires an actual justiciable 

controversy as to which the complainant has a real interest in the 

ultimate adjudication because he or she has either suffered or is 

about to suffer an injury of sufficient magnitude reasonably to 

assure that all of the relevant facts and issues will be adequately 

presented to the adjudicator. [Citations.] To have standing, a 

party must be beneficially interested in the controversy; that is, 

he or she must have “some special interest to be served or some 

particular right to be preserved or protected over and above the 

interest held in common with the public at large.” [Citation.] 

The party must be able to demonstrate that he or she has some 

such beneficial interest that is concrete and actual, and not 

conjectural or hypothetical.’ . . . ‘Without standing, there is no 

actual or justiciable controversy, and courts will not entertain 

such cases. [Citation.]’ [Citation.]” (CashCall, Inc. v. Superior 

Court (2008) 159 Cal.App.4th 273, 286.)

Related is the problem of “mootness.” When a plaintiff has 

received all that he or she has demanded in the complaint, the 

case is considered “moot”; in other words, there is no further 

relief the court could provide. “ ‘Generally, courts decide only 

“actual controversies” which will result in a judgment that offers 

relief to the parties. [Citations.]’ ” (Larner v. Los Angeles Doctors 

Hospital Associates, LP (2008) 168 Cal.App.4th 1291, 1296

(Larner).) 

“The pivotal question in determining if a case is moot is 

therefore whether the court can grant the plaintiff any effectual 

relief. [Citations.] If events have made such relief impracticable, 

the controversy has become ‘overripe’ and is therefore moot. 

[Citations.] [¶] Thus, ‘ “[m]ootness has been described as ‘ “the 

doctrine of standing set in a time frame: The requisite personal 
14

interest that must exist at the commencement of the litigation 

(standing) must continue throughout its existence (mootness).” ’ 

[Citations.]” ’ [Citations.] When events render a case moot, the 

court, whether trial or appellate, should generally dismiss it.” 

(Wilson & Wilson v. City Council of Redwood City (2011) 191 

Cal.App.4th 1559, 1574; United States Parole Comm’n. v. 

Geraghty (1980) 445 U.S. 388, 396 (Geraghty).) 

Because a class action suit involves potential relief to 

absent class members in addition to the plaintiff who brings the 

suit, courts have recognized the duty a named plaintiff owes to 

the class, and the “flexible character” of mootness in such actions. 

(Geraghty, supra, 445 U.S. at pp. 400-401; La Sala v. American 

Sav. & Loan Assn. (1971) 5 Cal.3d 864, 871 (La Sala).) Thus, 

even when the named plaintiff’s claims are moot, courts have 

under some circumstances applied exceptions to the mootness 

doctrine to allow the plaintiff to continue prosecuting the suit. 

Plaintiffs invoke one such exception—the “pick off” exception—

which we discuss at length below. 

Still, the duty a plaintiff has to other class members 

“should not be confused with an additional claim for relief. 

A representative plaintiff still possesses only a single claim for 

relief—the plaintiff’s own. That the plaintiff has undertaken to 

also sue ‘for the benefit of all’ does not mean that the plaintiff has 

somehow obtained a ‘class claim’ for relief that can be asserted 

independent of the plaintiff’s own claim. ‘[T]he right of a litigant 

to employ [class action procedure] is a procedural right only, 

ancillary to the litigation of substantive claims. Should these 

substantive claims become moot . . . , by settlement of all 

personal claims for example, the court retains no jurisdiction over 

the controversy of the individual plaintiffs.’ [Citation.]” (Watkins 
15

v. Wachovia Corp. (2009) 172 Cal.App.4th 1576, 1589 (Watkins), 

quoting Deposit Guaranty Nat. Bank v. Roper (1980) 445 U.S. 

326, 332 (Roper).)

Thus, we first consider whether plaintiffs’ individual claims 

are moot. 

C. No Triable Issue of Fact that Plaintiffs’ Individual 

 Claims are Moot

Plaintiffs assert their claims are not moot because they 

have not received all of the relief they demanded in their 

complaint. We disagree. 

i. The evidence established the City fully

 satisfied plaintiffs’ monetary claims

The City offered evidence that plaintiffs’ DWP accounts 

were credited for the solid resources fee overcharges plaintiffs 

had paid before plaintiffs joined the litigation. Plaintiffs offered 

no evidence to dispute the fact. They instead asserted they did 

not know what the credits were for, or if they were accurate. 

This was insufficient to raise a triable issue of fact on that point. 

(Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163 [responsive 

evidence giving rise to no more than mere speculation is 

insufficient to establish a triable issue of material fact].) 

Plaintiffs proffered no evidence indicating they are entitled to 

further monetary relief to be reimbursed for the solid resource fee 

overcharges they paid. Indeed, plaintiffs do not argue on appeal 

that they have not received all of the monetary relief they 

demanded in their complaint as to their individual claims.
16

ii. The Chakhalyan judgment provides the

 injunctive relief plaintiffs seek in their 

 complaint

The Chakhalyan settlement and judgment placed into 

effect in all material aspects the injunctive relief plaintiffs seek 

in their complaint. It is undisputed that this case concerns the 

same overcharges alleged in Chakhalyan. In the second amended 

complaint, plaintiffs demand injunctive relief that would require 

the City to cease improperly charging the solid resource fee, 

reimburse all improperly obtained fees, and authorize the court 

to maintain jurisdiction over the case and any injunction issued 

until the court, in its discretion, determines to dissolve and 

dismiss the injunction. 

Pursuant to the Chakhalyan settlement and judgment 

which incorporated its terms, the City is to alter its billing 

system, policies and practices so the overcharges cease and do not 

recur and promptly and fully reimburse any persons who pay 

future overcharges. The court is to retain jurisdiction for 

purposes of enforcing the settlement, which includes the 

injunctive relief provisions. This is exactly the injunctive relief

plaintiffs seek in their second amended complaint.

As we understand their argument, plaintiffs assert their 

demand for declaratory relief would require additional measures, 

such as an order that “class counsel be charged with retaining, at 

Defendants’ expense, an accountant to review” data regarding the 

amount of fees charged to each class member and payments 

made, and that the accountant determine the amount owed to 

each class member. The declaratory relief demand also seeks an 

order that the City pay the amount owed to all class members 
17

into a fund to be distributed to class members by the court, 

and that the court oversee the disbursement of funds to the class. 

We disagree that these additional measures render the 

demand for injunctive relief materially different from the 

Chakhalyan provisions, such that plaintiffs’ claims are not moot. 

Plaintiffs suggest in their briefing on appeal that their complaint 

seeks ongoing independent reporting or auditing of the City with 

respect to future conduct. But their actual complaint demands

reporting and auditing related only to the calculation and 

distribution of funds to the class identified in the complaint. 

This speaks to administration of an award, but not a remedy for 

the essential harm alleged in the complaint: the City’s act of 

unlawfully charging the solid resource fee. This remedy was 

addressed in Chakhalyan with the injunctive relief provision 

requiring the City to stop overcharging customers and to 

reimburse those overcharged—the same remedy plaintiffs 

demand in their own injunctive relief request.

The Chakhalyan settlement and judgment has already put 

into place the injunctive relief plaintiffs seek as a remedy for the 

harms alleged in their complaint. (See e.g., Caro v. Procter & 

Gamble Co. (1993) 18 Cal.App.4th 644, 660-662 [previously 

entered consent decree addressed the conduct raised in plaintiff’s 

complaint, rendering prayer for relief effectively moot; class 

certification not appropriate where policies of disgorgement and 

deterrence had been vindicated in other proceedings]; Chen v. 

Allstate Ins. Co. (2016) 819 F.3d 1136, 1142 [plaintiff had 

received complete relief on individual claims; plaintiff gave no 

reason to believe that defendant’s consent to injunctive relief 

would be inadequate or that plaintiff could obtain broader relief 

after trial on the merits].) 
18

iii. The Chakhalyan injunctive relief

 provisions bind the City and are prospective

Plaintiffs contend that although the Chakhalyan

settlement and judgment provides that the trial court will retain 

continuing jurisdiction pursuant to Code of Civil Procedure 

section 664.6 (Section 664.6), this applies only to the parties to 

the Chakhalyan action and they were not “parties” under the 

terms of the stipulated settlement. As we understand this 

argument, plaintiffs assert the Chakhalyan court had no 

jurisdiction over them. This contention does not advance 

plaintiffs’ ultimate claim. It is undisputed that the City was a 

party to the Chakhalyan settlement. As such, the City was, and 

continues to be, subject to the Chakhalyan judgment. The court 

has express continuing jurisdiction over the City as a party, with 

respect to the stipulated settlement and judgment. Any 

uncertainty regarding who may, or who will, seek to enforce the 

settlement and judgment against the City does not mean the City 

is free to abandon the obligations to which it stipulated and the 

court approved.

Under Section 664.6, the trial court has continuing 

jurisdiction to enforce the judgment, which incorporates the 

stipulated settlement, against the City. (Lofton v. Wells Fargo 

Home Mortgage (2014) 230 Cal.App.4th 1050, 1061 [retention of 

jurisdiction under Section 664.6 includes jurisdiction over both 

the parties and the case itself; it is broader than what typically 

remains following entry of a judgment; and it includes the court’s 

equitable authority].) The settlement includes the injunctive 

relief provisions. Plaintiffs fail to offer any argument to explain 

their assertion that continuing jurisdiction to enforce the 
19

Chakhalyan settlement would not include the terms regarding 

injunctive relief.

Moreover, plaintiffs’ argument that the court had no 

jurisdiction to “enforce the stipulated injunction with respect to 

post-class period claims” is inconsistent with the actual language

of the stipulated injunctive relief. In the agreement, the City is 

bound to monitor its systems to ensure that the overcharges do 

not recur, and in the event it identifies future overcharges 

through such monitoring, it is to promptly and fully reimburse 

the charges. 

It would be absurd to read this language as applying only 

to claims the City had already been made aware of and would 

reimburse through other provisions in the agreement. (Mount 

Vernon Fire Ins. Co. v. Busby (2013) 219 Cal.App.4th 876, 882 

[contract interpretation requires a commonsense interpretation 

which avoids absurd results]; In re Tobacco Cases I (2011) 193 

Cal.App.4th 1591, 1601 [in enforcement actions consent decrees 

are treated as contracts for purposes of interpretation].) The 

stipulated settlement is explicitly prospective, intended to 

provide relief should future overcharges occur.

To the extent plaintiffs contend the injunctive relief 

provision only required the City to stop overcharging Chakhalyan

class members, or only to reimburse future overcharges assessed 

to Chakhalyan class members, we reject the argument. The 

injunctive relief provisions contain no such limiting language, 

whereas other portions of the stipulated settlement identify 

“class members” explicitly. Further, the provision regarding 

reimbursement of future overcharges refers to those assessed to 

“any persons so identified,” a term distinct from “class members.” 

We therefore disagree that the settlement and judgment may be 
20

construed as requiring the City to only reimburse future 

overcharges if they are imposed on Chakhalyan class members.

iv. Plaintiffs have not shown their claims are

 not moot because they have a continuing 

 economic interest based on shifting costs 

 and fees to a class

Finally, we reject plaintiffs’ argument that even though 

they received complete relief before they filed their complaint, 

they continued to have a stake in the litigation because of their 

interest in shifting part of the litigation costs and attorney fees to 

other class members.

Cases that have endorsed this theory have done so in a 

context in which the defendant satisfies the plaintiff’s claim after 

the plaintiff has filed suit, and often after the plaintiff has 

engaged in significant litigation. In the seminal case on this 

issue, Roper, the plaintiffs litigated the case through an 

unsuccessful motion for class certification, filed a motion for an 

interlocutory appeal, and only then did the defendant present an 

offer of judgment. (Roper, supra, 445 U.S. at pp. 328-329.) 

Under these circumstances, the court noted the plaintiffs claimed 

a continuing economic interest in shifting the costs of litigation to 

other class members. (Id. at p. 334, fn. 6.) This interest was one 

basis for the conclusion that the plaintiffs had a personal stake in 

the appeal of the lower court’s denial of their motion for class 

certification.

8 

 

8 Plaintiffs cite Watkins at length, but Watkins discussed 

Roper and found the reasoning inapplicable in that case. In 

Watkins, the court concluded the plaintiff did not have standing 

to represent a class because she had voluntarily settled her 

claims. (Watkins, supra, 172 Cal.App.4th at p. 1592; Larner, 
21

Subsequent cases call into question the continuing validity 

of the Roper analysis on this point. In Lewis v. Continental Bank 

Corp. (1990) 494 U.S. 472, 480 (Lewis), the high court reasoned 

an “interest in attorney’s fees is, of course, insufficient to create 

an Article III case or controversy where none exists on the merits 

of the underlying claim, see Diamond v. Charles [(1986)] 476 U.S. 

54, 70-71 [(Diamond)]. Where on the face of the record it appears 

that the only concrete interest in the controversy has terminated, 

reasonable caution is needed to be sure that mooted litigation is 

not pressed forward, and unnecessary judicial pronouncements 

on even constitutional issues obtained, solely in order to obtain 

reimbursement of sunk costs.” (Lewis, supra, at p. 480; Genesis 

Healthcare Corp. v. Symczyk (2013) __ U.S. ___, 133 S.Ct. 1523, 

1532 [noting the court would not decide whether Roper’s analysis 

is still valid in light of Lewis].)

In Premium Plus Partners v. Goldman, Sachs & Co. (7th 

Cir. 2011) 648 F.3d 533 (Premium Plus), the Seventh Circuit 

Court of Appeals applied Lewis in a putative class action context. 

After the district court twice denied class certification, the 

representative plaintiff accepted an offer pursuant to Federal 

Rule of Civil Procedure 68 (Rule 68), but also sought to continue 

litigating the action in order to have a class certified. (Premium 

Plus, at p. 535.) The plaintiff argued its claim was not fully 

resolved “because if the class litigates, and wins, some of the 

expenses that Premium Plus has incurred along the way could be 

allocated to the class, and its net recovery therefore would be 

 

supra, 168 Cal.App.4th at pp. 1302-1304 [after voluntary 

settlement plaintiff retained no continuing interest in litigation; 

plaintiff did not assert she had reserved a right to shift attorney’s 

fees to class member, thus her appeal was moot].)
22

larger. The logical implication of this position is that a person 

whose claim is moot still can file suit seeking attorneys’ fees.” 

(Id. at p. 538.)

The Premium Plus court disagreed: “That position was 

advanced, and flopped, in Diamond, [supra, 476 U.S. at pp. 70-

71], and again in Lewis, [svpra, 494 U.S. at p. 480]; it fares no 

better when advanced by a would-be class representative. 

The Court said flatly in Lewis that an ‘interest in attorney’s fees 

is . . . insufficient to create an Article III case or controversy 

where none exists on the merits of the underlying claim’; that’s 

equally true of costs and the other expenses that Premium Plus 

hopes to offload to the class.” (Premium Plus, supra, 648 F.3d at 

p. 538.)

Although in Premium Plus the plaintiff accepted an offer of 

judgment, we find the court’s reasoning persuasive here, in that 

plaintiffs’ claims are equally moot. In addition, we are aware of 

no legal authority supporting the proposition that a plaintiff 

whose claims are fully satisfied before the plaintiff files a 

complaint has a continuing economic interest in shifting attorney 

fees and costs to others that is sufficient to constitute the 

personal stake in the litigation required to avoid a finding of 

mootness.9 Roper did not consider such facts. (See Steel Co. v. 

 

9 We further note the absence of any factual record 

indicating plaintiffs have actually incurred significant fees or 

costs prior to the City’s reimbursement of the overcharges they 

paid. In opposition to the motion for summary judgment, 

plaintiffs declared only that they had retained counsel and were 

therefore “contractually obligated to pay costs and attorneys’ 

fees.” They did not offer evidence indicating they have actually 

incurred or paid any such costs or fees. (See Roper, supra, 445 
23

Citizens for a Better Environment (1998) 523 U.S. 83, 107 “[A] 

plaintiff cannot achieve standing to litigate a substantive issue 

by bringing suit for the cost of bringing suit. The litigation must 

give the plaintiff some other benefit besides reimbursement of 

costs that are a byproduct of the litigation itself.”].)

The monetary relief the City provided to the plaintiffs, and 

the injunctive relief it agreed to in the Chakhalyan stipulated 

settlement and judgment, resulted in plaintiffs directly and 

indirectly receiving what they demanded in their suit, before they 

filed the second amended complaint that marked their formal 

involvement in the litigation. There was no further relief to be 

afforded the plaintiffs on their individual claims. (See Simi Corp.

v. Garamendi (2003) 109 Cal.App.4th 1496, 1503 [case is moot 

when a court ruling can have no practical impact or cannot 

provide the parties with effective relief]; Chen v. Allstate Ins. Co., 

supra, 819 F.3d at p. 1144 [interpreting Campbell-Ewald Co. v. 

Gomez (2016) __ U.S. ___, 136 S.Ct. 663 (Campbell-Ewald), “a 

lawsuit—or an individual claim—becomes moot when a plaintiff 

actually receives all of the relief he or she could receive on the 

claim through further litigation”].)

 

U.S. at p. 334, fn. 6 [“respondents have asserted as their personal 

stake in the appeal their desire to shift to successful class 

litigants a portion of those fees and expenses that have been 

incurred in this litigation and for which they assert a continuing 

obligation”]; Bais Yakov of Spring Valley v. ACT, Inc. (1st Cir. 

2015) 798 F.3d 46, 49-50 [noting Roper’s “uncertain future” and 

unclear applicability; record did not disclose terms of plaintiff’s 

agreement with counsel, thus court did not know if amount 

plaintiff had to pay attorneys would be less if class achieved a 

recovery, or what fees, if any, plaintiff would be required to pay if 

litigation ended at pre-certification stage].)
24

II. The Trial Court Properly Rejected the Pick Off 

Exception to Mootness in this Case

Plaintiffs argue that even if their individual claims are 

moot, they raised a triable issue of fact as to whether the “pick 

off” exception to mootness in class action cases should be applied 

here. We conclude the exception does not apply to this case. 

A. The “Pick Off” Exception

Courts have been extremely skeptical of defense efforts to 

take unilateral actions that moot a representative plaintiff’s 

claims in an attempt to avoid litigating class claims. However, 

these cases involve a defendant’s voluntary actions, most concern 

such actions taken after the named plaintiff has filed a complaint, 

and they address the defense attempt to provide a remedy to the 

named plaintiff alone, rather than to the entire class.

For example, in La Sala, supra, 5 Cal.3d 864, the plaintiffs 

brought a class action against a savings and loan association, 

challenging a provision in the association’s trust deed that 

permitted it to accelerate if the borrower executed a junior 

encumbrance on the secured property. (Id. at p. 868.) After the 

plaintiffs filed their complaint, but before the hearing on a 

demurrer, the defendant offered to waive its right to accelerate 

against the named plaintiffs. On its own motion, the trial court 

ruled there was “no justiciable issue”; the court later dismissed 

the case, ruling there was no individual plaintiff remaining who 

was or could be construed to be a representative of the class. 

(Id. at p. 870.)

The California Supreme Court reversed the decision, 

concluding the defendant’s offer to provide relief to the plaintiffs 

did not necessarily make them unfit to continue representing the 

class. (La Sala, supra, 5 Cal.3d at p. 871.) The court reasoned: 
25

“When a plaintiff sues on behalf of a class, he assumes a fiduciary 

obligation to the members of the class, surrendering any right to 

compromise the group action in return for individual gain. Even 

if the named plaintiff receives all the benefits that he seeks in the 

complaint, such success does not divest him of the duty to 

continue the action for the benefit of others similarly situated.” 

(Id. at p. 871.) 

The La Sala court further concluded that even if the trial 

court found the plaintiffs were no longer suitable representatives 

and, after having a chance to amend the complaint, no suitable 

representative was named, the court was required to notify the 

class of the proposed dismissal. The court explained any other 

resolution would allow the defendant to repeatedly offer relief to 

the named class representative, then have the case dismissed. 

“Such a procedure could be followed ad infinitum for each 

successive group of representative plaintiffs. If defendant is 

permitted to succeed with such revolving door tactics, only 

members of the class who can afford to initiate or join litigation 

will obtain redress; relief for even a portion of the class would 

compel innumerable appearances by individual plaintiffs. Yet 

the function of the class action is to avoid the imposition of such 

burdens upon the class and upon the court. [Citation.]. If we 

sanction [the defendant’s] tactic defendants can always defeat a 

class action by the kind of special treatment accorded plaintiffs 

here and thus deprive other members of the class of the benefits 

of the litigation and any notice of opportunity to enter into it.” 

(La Sala, supra, 5 Cal.3d at p. 873.)

We are mindful of the context of the La Sala court’s 

reasoning. The plaintiffs had already filed their complaint when 

the defendant offered to provide the relief they demanded. 
26

Their claims were not moot before the plaintiffs filed suit. 

The defendant offered to satisfy the named plaintiffs’ claims, but 

it had not already done so. Its offer to resolve the claims was 

purely voluntary, rather than required by law or contract. 

Further, the offer to waive acceleration would apply only to the 

plaintiffs, not any other members of the class.

In Kagan v. Gibraltar Sav. & Loan Assn. (1984) 35 Cal.3d 

582 (Kagan), disapproved of an another ground by Meyer v. 

Sprint Spectrum L.P. (2009) 45 Cal.4th 634, 643, footnote 3, the 

California Supreme Court interpreted provisions of the Consumer 

Legal Remedies Act (CLRA) as specifically prohibiting a 

defendant from “picking off” prospective class representatives by 

offering them relief while not providing similar relief to the entire 

proposed class. (Id. at p. 587.) When the plaintiff in Kagan sent 

the defendant a demand letter challenging certain practices, 

including assessment of a particular fee, the defendant provided 

only a portion of the relief the plaintiff demanded. (Id. at pp. 589, 

592.) The plaintiff subsequently filed a class action suit. (Id. at 

p. 589.) 

The court concluded the defendant’s attempted “pick off” 

was invalid under the CLRA and would not necessarily render 

the plaintiff unfit to represent a class and bring the action. 

There was no evidence the defendant complied with the statute’s 

requirements that it identify similarly situated plaintiffs, notify 

other consumers that it would provide them similar relief, and 

provide relief to similarly situated consumers. (Kagan, at p. 592.) 

It remained in the discretion of the trial court to determine 

whether the plaintiff was a suitable representative for the class, 

in accord with La Sala. (Kagan, at pp. 595-596.)
27

Federal courts have similarly addressed the “pick off” 

exception, concluding when a defendant seeks to provide relief to 

the representative plaintiff in a strategic attempt to moot the 

plaintiff’s claims and avoid a class action, the plaintiff may 

continue to prosecute the suit, at least to attempt to secure class 

certification.10 (Wilson v. Gordon (6th Cir. 2016) 822 F.3d 934, 

947-949.) Two United States Supreme Court cases considered 

whether a plaintiff whose claim was expired or satisfied could 

appeal an order denying class certification. In Geraghty, the 

named plaintiff challenged parole release guidelines on behalf of 

a class. He was paroled after his motion for class certification 

was denied and while his appeal of the ruling was pending. 

The court held he could still prosecute the appeal, despite the 

expiration of his individual claim. (Geraghty, supra, 388 U.S. at

pp. 405-407.)

In Roper, the high court held that when, after the denial of 

class certification, a defendant made an offer of judgment for the 

maximum amount each plaintiff could have recovered in the 

litigation, and the court entered judgment over the objection of 

the plaintiffs, the plaintiffs could still appeal the denial of class 

certification. (Roper, supra, 445 U.S. at pp. 329-330, 340.)

Most recently, in Campbell-Ewald, supra, 136 S.Ct. 663, 

the high court concluded an unaccepted settlement offer or offer 

of judgment under Rule 68 does not moot a named plaintiff’s 

claims. (Campbell-Ewald, at p. 672.) However, the court did not 

decide “whether the result would be different if a defendant 

deposits the full amount of the plaintiff’s individual claim in an 

 

10 California courts may look to federal law when seeking 

guidance on issues of class action procedure. (In re Tobacco II 

Cases (2009) 46 Cal.4th 298, 318.)
28

account payable to the plaintiff, and the court then enters 

judgment for the plaintiff in that amount.” (Ibid.)

i. The Chakhalyan stipulated settlement and

 judgment distinguishes this case

The critical factor that distinguishes this case from prior 

authorities on “pick off” is the existence of the Chakhalyan 

judgment. Pursuant to that judgment, the City had a legal 

obligation to reimburse plaintiffs for the solid resource fee 

overcharges they had paid. Moreover, that legal obligation 

applied equally to any other persons subjected to solid resource 

fee overcharges.

Plaintiffs point out the Chakhalyan judgment requires the 

City to “routinely monitor its billing system, policies and 

practice,” and “in the event [the City] identifies future [solid 

resource fee] Overcharges through such monitoring, the City will 

promptly and fully reimburse any persons so identified . . . .” 

Plaintiffs argue the City did not identify them as persons 

subjected to overcharges through such routine monitoring, 

rather, the City discovered plaintiffs because of their anticipated 

involvement in the Cunningham litigation.

The Chakhalyan settlement and judgment do not define 

“routinely monitor” or specify exactly what form such monitoring 

will take. Further, while the measures identified in Exhibit G 

include items that would appear to be or would facilitate “routine 

monitoring,” the City offered no evidence establishing it learned 

of the plaintiffs through any specific measures identified in that 

exhibit. However, we do not narrowly interpret the Chakhalyan

settlement and judgment as requiring the City to reimburse solid 

resource fee overcharges only when it discovers overcharges 

through the City’s internal measures. 
29

The settlement’s express purpose is to halt the overcharges, 

ensure they cease, and compensate those overcharged at the time 

of the settlement and in the future. To deem credits made to 

individuals the City discovers through threats of litigation to be 

purely voluntary, and outside the scope of the Chakhalyan

settlement’s injunctive relief provision, would be entirely 

inconsistent with the stated objectives of the stipulation. We can 

only understand the stipulated settlement as a whole by 

interpreting “persons identified” through “such monitoring” 

as broad enough to include persons who threaten litigation or 

otherwise become known to the City through some form of 

adversarial process.

Pursuant to the Chakhalyan judgment, the City has a legal 

obligation to reimburse DWP customers against whom it has 

improperly assessed solid resource fee overcharges. By crediting 

the plaintiffs’ accounts, the City was complying with the 

obligations it agreed to in the resolution of Chakhalyan. The 

evidence further established it had done so for 852 other DWP 

customers between January and June 2013. In La Sala, the 

defendant offered to provide relief only to the representative 

plaintiffs. Any other putative class members would have no 

recourse except to file their own suits. The same was true in 

Kagan. In contrast, here, the Chakhalyan judgment created a 

remedy for the harm alleged in plaintiffs’ complaint, and the City 

has afforded that remedy to plaintiffs and many others.

The policy concerns underlying the pick off exception are 

the desire to avoid “revolving door” litigation, whereby the 

defendant uses a tactic to avoid a class action, to the detriment of 

putative class members who cannot afford to initiate or join 

litigation, and inviting a waste of judicial resources. (Roper, 
30

supra, 445 U.S. at p. 339; La Sala, supra, 5 Cal.3d at p. 873.) 

Here, the circumstances paint a very different picture. While 

this suit was pending with its original plaintiff, another 

previously-filed class action suit alleging identical claims was 

pending and was resolved. The resolution of Chakhalyan led to a 

binding judgment affording prospective relief for future 

claimants. Consistent with this judgment, the City provided 

plaintiffs complete relief, less than a year after the court entered 

judgment in Chakhalyan. 

Pursuant to that same judgment, the City must provide the 

same relief to any other overcharged person – the remedy was not 

limited to plaintiffs alone. It did so 854 times between January 

and June 2013. There is no evidence or basis to infer that, with 

the arguable exception of plaintiffs, the other 852 

reimbursements the City made were in response to actual or 

threatened litigation. Applying the pick off exception to mootness 

here does not address the policy concerns underlying the 

exception in the way it did in La Sala, Kagan, Geraghty, or 

Roper. (See Cruz v. Farquharson (1st Cir. 2001) 252 F.3d 530, 

533, 535-536 (Cruz) [after plaintiffs filed suit based on agency 

delay in reviewing residency petitions, agency processed the

petitions, then sought dismissal of the complaint as moot; court 

found plaintiffs had received complete relief, case was moot, 

plaintiffs did not establish that agency had pattern of delaying 

review until subjected to suit]; Sze v. I.N.S. (9th Cir. 1998) 153 

F.3d 1005, 1008-1010.)

Wallace v. GEICO General Ins. Co. (2010) 183 Cal.App.4th 

1390 (Wallace), offers a helpful contrast. In Wallace, the plaintiff 

filed a class action suit against GEICO, alleging the insurance 

company wrongly denied coverage for body shop repairs it 
31

considered to be above prevailing labor rates. Several months 

before the plaintiff filed her complaint, GEICO entered into a 

stipulation and consent order with the California Department of 

Insurance regarding the company’s refusal to reimburse labor 

rates above what it deemed the prevailing rate. (Id. at p. 1394.) 

Pursuant to the consent order, GEICO was ordered to cease and 

desist from violating certain Insurance Code provisions and 

regulations. It also agreed to conduct an internal audit of 

complaints it had received regarding labor rates to identify and 

reimburse insureds or claimants who had been subjected to 

GEICO’s refusal to reimburse at full rates. The consent order 

required GEICO to reimburse affected insureds or claimants who 

complained during a 60-day period set forth in the order. (Ibid.)

Two months after the plaintiff filed her lawsuit, GEICO 

sent her a check reimbursing her in the amount she had paid out 

of pocket to repair her vehicle. A letter accompanying the check 

indicated GEICO made the payment in accordance with the 

consent order. (Id. at p. 1395.) GEICO then sought summary 

judgment, arguing the plaintiff’s individual claims were moot and 

she lacked standing to pursue her class claims. The trial court 

concluded the plaintiff did not have standing to serve as a class 

representative. When the plaintiff failed to proffer a new class 

representative the court struck the class allegations. (Id. at 

p. 1396.) 

On appeal, the plaintiff argued the “pick off” exception 

should be applied to allow her to continue as a representative 

plaintiff for a class. (Wallace, supra, 183 Cal.App.4th at pp. 

1396-1397.) In response, GEICO argued it did not “pick off” the 

plaintiff by offering her individual compensation after she filed 

her suit. The company maintained it paid her pursuant to the 
32

consent order with the Department of Insurance, to which it had 

agreed before the plaintiff filed her suit. GEICO further 

contended the policy underlying the pick off cases did not apply 

because, given the consent order, there was no risk that 

satisfying the plaintiff’s claim would frustrate the objectives of 

class actions or open a revolving door of litigation. 

The reviewing court rejected this argument based on its 

interpretation of the consent order. The court concluded the 

order was narrow and required GEICO to reimburse only a 

limited group of individuals that did not include the plaintiff. 

The court reasoned there might be other persons in the proposed 

class who would not be entitled to reimbursement under the 

terms of the consent order. (Wallace, at p. 1403.) As a result, the 

“pick off” exception was applicable: “Because GEICO was not 

required to reimburse [the plaintiff] under the terms of the 

consent order, it voluntarily offered to settle with her after she 

filed a class action lawsuit. The pickoff cases establish that in 

such a situation, [the plaintiff] does not automatically lose 

standing to act as a representative plaintiff.” (Id. at p. 1403.) 

Issues of whether the plaintiff could adequately represent the 

class, and whether there was a class to represent given the 

consent order, were to be resolved in connection with class 

certification proceedings. (Wallace, at p. 1403, fn. 11.)

Wallace highlights the critical distinguishing factors in this 

case. The Chakhalyan settlement and corresponding judgment is 

not as narrow as the consent order in Wallace. Unlike the

defendant in Wallace, the City had an obligation to reimburse the 

plaintiffs once it discovered they had improperly been charged 

the solid resource fee. The reimbursements were not a voluntary, 

gratuitous payment whose only purpose was to avoid class action 
33

litigation. Further, by the time the second amended complaint 

was filed, the City had already reimbursed the plaintiffs for the 

overcharges and the Chakhalyan injunction was already in effect. 

This case is therefore unlike Wallace.

This case also differs from Kagan, in which the plaintiff 

was not necessarily rendered unfit to represent a class despite 

the defendant’s provision of relief to her before she filed her 

complaint. In Kagan, the pre-filing remedy the defendant offered 

the plaintiff did not moot her claims because of the express 

statutory framework at issue and the defendant’s failure to 

provide all of the relief the plaintiff demanded, including classwide relief. Even under the specific CLRA framework at issue, 

the Kagan court agreed “that a consumer who has notified a 

prospective defendant of an individual grievance and has 

obtained his or her requested relief cannot subsequently bring 

either an individual or class action under the Act. However, this 

is not simply because the consumer no longer ‘suffers any 

damage’ but because the prospective defendant has remedied the 

contested practices. Similarly, a prospective defendant receiving 

notice of a grievance which affects a class of consumers can avert 

a subsequent class action only by remedying the contested 

practices as to all affected consumers.” (Kagan, supra, 35 Cal.3d 

at p. 591.)

We thus disagree with plaintiffs’ contention that evidence 

of a defense motive to avoid class litigation is the touchstone of 

the pick off exception. The critical issues are whether the 

defendant’s actions are voluntary, rather than compulsory, and 

whether the relief provided is to the plaintiff alone or to the 

entire class the plaintiff seeks to represent. Here, before 

plaintiffs’ second amended complaint was filed—their first formal 
34

entry into the litigation as parties—the Chakhalyan judgment 

had created a mandatory remedy that applied to plaintiffs and 

others, and with which the City complied by reimbursing 

plaintiffs and others. (See e.g., Renne v. Geary (1991) 501 U.S. 

312, 320 [“[T]he mootness exception for disputes capable of 

repetition yet evading review . . . will not revive a dispute which 

became moot before the action commenced.”].)

III. Conclusion

The unique circumstances of this case dictate the result.

The litigation was originally contemporaneous with Chakhalyan. 

Cunningham’s claims were dismissed not because he was picked 

off, but because he was a member of the Chakhalyan class and he 

did not object to or exclude himself from the class. The 

Chakhalyan stipulated settlement and judgment bound the City 

to provide relief to future persons improperly charged the solid 

resource fee. 

In this context, the pick off exception to mootness does not

fit. Simply put, the City did what it was supposed to do under 

the Chakhalyan settlement: it reimbursed the plaintiffs for the 

improperly charged and paid fees. Plaintiffs’ claims are moot. 

The benefits afforded to the plaintiffs were similarly afforded to 

852 other people between January and June 2013. There is no 

basis to conclude the pick off exception should be applied to 

prevent the City from depriving other potential members of the 

class of the benefits of the litigation. The benefits plaintiffs 

received resulted from the Chakhalyan litigation and they are 

equally available to any other potential members of the putative 

class plaintiffs seek to represent.
35

Plaintiffs assert that if they are not allowed to continue 

representing a class in prosecuting the claims alleged in their

complaint, the City will persist in unlawfully charging the solid 

resource fee. They contend the City should not be allowed to 

avoid a class action suit into the indefinite future on the basis of 

the Chakhalyan settlement, simply by paying off every new 

plaintiff who appears. 

We do not decide how a future court should characterize a 

new complaint, initiated after Chakhalyan, in which a plaintiff 

asserts harm in the form of an unlawful solid resource fee 

overcharge. Several years have passed since the Chakhalyan 

judgment was entered. A court may reasonably view a new claim 

of solid resource fee overcharges in a different light than the 

claims in plaintiffs’ complaint. Whether a City reimbursement of 

a hypothetical future claim should be characterized as a “pick off” 

so that the plaintiff may continue prosecuting class claims is an 

issue that must be decided on its own merits, should it arise.

The plaintiffs before us have no further personal stake in 

the litigation. A court can award them no further remedy beyond 

what they have already received. Pursuant to the Chakhalyan

judgment, the City must provide the same remedy to other 

putative class members; there is evidence that it has done so.

There is no indication that the City has established a pattern of 

waiting until a customer sues or threatens to sue before it 

complies with the Chakhalyan obligations. (Compare Cruz, 

supra, 252 F.3d at p. 535 [“One swallow does not a summer 

make. . . . .”] and Demmler v. ACH Food Companies, Inc.

(D. Mass. 2016) 2016 WL 4703875, *8 [summary judgment 

granted where plaintiff had received full relief; rejecting pick off 

argument, noting no evidence that defendants had a pattern of 
36

tendering full relief to plaintiffs before certification] with Dozier 

v. Haveman (E.D. Mich. 2014) 2014 WL 5483008, *6, 13 [applying 

pick off theory where defendant had mooted three sets of 

representative plaintiffs; court found it significant that there 

appeared to be no shortage of class members willing to 

intervene].) 

Applying the “pick off” exception to mootness under these 

circumstances would not advance the policies underlying the 

exception: avoiding the frustration of the objectives of class 

actions and preventing the waste of resources that would occur 

with successive suits claiming similar injuries. (Roper, supra, 

445 U.S. at p. 339.)

The trial court properly granted summary judgment on the 

ground that plaintiffs’ claims are moot.

DISPOSITION

The trial court judgment is affirmed. Respondent is to 

recover its costs on appeal.

CERTIFIED FOR PUBLICATION

BIGELOW, P.J.

We concur:

RUBIN, J. 

FLIER, J.