Class Certification Bid ‘Deflated’ by Court of Appeal for Lack of Ascertainability

Kaylen Kadotani 
Kaylen Kadotani
March 1, 2018

In a recent decision, the California Court of Appeal reinforced the ascertainability requirement for class certification under state law. In Noel v. Thrifty Payless, Inc. (2017) 17 Cal.App.5th 1315, the First District of the California Court of Appeal affirmed an order by the Marin County Superior Court which denied Plaintiff’s Motion for Class Certification on grounds that Plaintiff failed to demonstrate that the proposed class was ascertainable.  Just this week, the California Supreme Court granted review of this decision.

In this consumer class action, Plaintiff alleged that Defendant Thrifty Payless, Inc. dba “Rite Aid” (“Rite Aid”) violated the Unfair Competition Law (“UCL”), the False Advertising Law (“FAL”) and the Consumer Legal Remedies Act (“CLRA”)1 by selling an inflatable swimming pool that turned out to be smaller than the pool pictured on the product’s box. Plaintiff’s proposed class included: “All persons who purchased the Ready Set Pool at a Rite Aid store located in California within the four years preceding the date of the filing of this action [i.e., November 18, 2013].” (Id. at 1326.) Before filing his Motion for Class Certification, Plaintiff learned, through written discovery, that Rite Aid had sold more than 20,000 inflatable swimming pools, for a potential class of 20,000 individuals. Notably, however, Plaintiff did not seek any discovery as to the location and nature of any records maintained by Rite Aid relating to the identity of the purchasers, or how their identities might otherwise be ascertained. This critical omission proved fatal to Plaintiff’s attempt to certify a class.

As is well-established under California Code of Civil Procedure section 382, a motion for class certification may be granted where there is “an ascertainable class and a well-defined community of interest among class members.” (Id. at 1324) (citing Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326.)   The ascertainability requirement depends on: (1) class definition, (2) class size, and (3) means of identifying class members. (Id.) (citing Sotelo v. Medianews Group, Inc. (2012) 207 Cal.App.4th 639, 648.) The party seeking class certification carries the burden to establish the existence of ascertainability. (Id. at 1325) (citing Sav-On, 34 Cal.4th at 326.) The trial court found that Plaintiff failed to carry this burden since he “presented ‘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 those records will show, and how burdensome their production would be. . . .'” (Id. at 1323.)

On appeal, Plaintiff argued that the trial court used the wrong legal standard for ascertainability, and that it should have followed the rule announced in Estrada v. FedEx Ground Package Systems, Inc. (2007) 154 Cal.App.4th 1, 14, which provides that a class is ascertainable “if it identifies a group of unnamed plaintiffs by describing a set of common characteristics sufficient to allow a member of that group to identify himself as having a right to recover based on the description.” (Id. at 1326) (Italics removed.) Thus, Plaintiff argued, based on his proposed class definition, he had identified an ascertainable class. The Court of Appeal disagreed, noting that “[t]he theoretical ability to self-identify as a member of the class is useless if one never receives notice of the action.” (Id. at 1327) (citing Sotelo, 207 Cal.App.4th at 649.) “The ascertainability requirement is a due process safeguard, ensuring that notice can be provided ‘to putative class members as to whom the judgment in the action will be res judicata.’ . . . ‘Class members are ‘ascertainable’ where they may be readily identified without unreasonable expense or time by reference to official records.'” (Id.) (citing Sotelo, 207 Cal.App.4th at 647-648.)

The Court of Appeal agreed with the trial judge, and reasoned that other than pointing to the number of inflatable pools sold, the number of returns, and the gross revenue earned by Rite Aid, Plaintiff failed to submit any evidence which offered “insight into who purchased the pool or how one might find that out. . . . Unless [Plaintiff] 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.” (Id. at 1328.)

In its decision, the Court acknowledged an apparent conflict with another recent case, Aguirre v. Amscan Holdings, Inc. (2015) 234 Cal.App.4th 1290, in which the appellate court held that the means of identification requirement under Sotelo did not require a plaintiff to prove there is a way to give absent class members personal notice, and that the court need only consider the available means to identify class members “at the remedial stage.” (Id. at 1330) (citing Aguirre, 234 Cal.App.4th at 1300.) Disagreeing with the Aguirre approach, the Noel court pointed out that longstanding principles of due process and public policy support the requirement that a plaintiff make some showing of a means of identifying the class and a description of how notice may be given. (Id. at 1332.) The Court further noted that class action litigants should be able to address this inquiry quite easily in the early stages of the action, i.e., through the discovery that Plaintiff here neglected to pursue. (Id. at 1333.)

In summary, the Noel case, at least for now, reinforces the requirement that class action plaintiffs present an ascertainable class at the class certification stage by establishing a means of identifying the class members and providing notice.  As noted above, the California Supreme Court has just recently granted review of this decision, though we are not yet aware of the issues to be addressed on appeal. We will be following this decision closely, so make sure to check back for updates.

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1 The Court’s discussion and ruling as to Plaintiff’s CLRA claim is not included in this blog entry. For reference, the Court also denied class certification as to CLRA, but for different reasons than the claims under the UCL and FAL.