Velasco v. Trimaco CA1/4 ( 2015 )

Filed 4/30/15 Velasco v. Trimaco CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
ROQUE A. VELASCO,
Plaintiff and Appellant,
A139288
v.
TRIMACO, LLC, (Alameda County
Super. Ct. No. RG12639754)
Defendant and Respondent.
Roque A. Velasco appeals from the trial court’s order denying his motion for class
certification. He contends that the trial court abused its discretion in denying the motion
because it applied the wrong criteria in determining the motion. We affirm.
I. FACTUAL BACKGROUND
Trimaco, LLC (Trimaco) manufactures and sells rolls of paper for both
commercial and household use in construction and painting. Since 2008, it has been
selling its paper rolls in California primarily through Home Depot and Lowe’s. The rolls
are labeled with their measurements, stating their total width and length.
Velasco alleges that on November 27, 2010, he purchased a roll of Trimaco’s
Builder’s Paper (Builder’s Paper), labeled with the measurements of 35 inches by
140 feet, from a Home Depot store in Newark. Upon measuring the roll, Velasco
determined that the actual length of the roll was only 132 feet and nine inches. He
alleges that other consumers have also purchased rolls of Builder’s Paper that are
similarly short in length as compared to the length represented on the labels.
1
On September 27, 2012, Velasco filed a first amended complaint on behalf of
himself and others similarly situated seeking damages caused by Trimaco’s alleged
practice of selling paper rolls that are shorter in length than represented on their labels.
He alleged that Trimaco violated the Consumer Legal Remedies Act (Civ. Code, § 1750
et seq.) and the Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq.), and
engaged in false advertising (Bus. & Prof. Code, § 17500 et seq.) and negligent
misrepresentation. On March 15, 2013, Velasco moved to certify a class to include “ ‘all
residents of the State of California who, at any time between July 18, 2008[,] and the date
of class certification in this action, purchased one or more [p]aper [r]olls[] manufactured
by Trimaco and sold at a retail store in [California].’ ” The trial court denied the motion,
finding that it could not infer that a substantial number of paper rolls sold in California
during the relevant time frame were materially short and that Velasco had not
demonstrated how a trier of fact could determine how many rolls were short or by how
much. The court also found that the proposed class was not ascertainable because there
was no evidence that the proposed class members purchased short rolls or that they could
be identified. The court further found that Velasco’s claims were not typical of the other
members of the proposed class and that the monetary recovery for the claims of any
purchaser who may have purchased shorter rolls would be relatively small. Finally, the
court concluded that it would not be manageable to adjudicate the claims on a class basis.
II. DISCUSSION
A party seeking class certification must show “the existence of an ascertainable
and sufficiently numerous class, a well-defined community of interest, and substantial
benefits from certification that render proceeding as a class superior to the alternatives.”
(Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal. 4th 1004, 1021 (Brinker); see
Code Civ. Proc., § 382.) Whether a class is ascertainable is determined by examining the
class definition, the size of the class and the means of identifying class members. (Miller
v. Woods (1983) 148 Cal. App. 3d 862, 873.) “The community of interest requirement
involves three factors: ‘(1) predominant common questions of law or fact; (2) class
representatives with claims or defenses typical of the class; and (3) class representatives
2
who can adequately represent the class.’ ” (Linder v. Thrifty Oil Co. (2000)
23 Cal. 4th 429, 435.) “ ‘The burden is on the party seeking certification to establish the
existence of both an ascertainable class and a well-defined community of interest among
the class members.’ ” (Lockheed Martin Corp. v. Superior Court (2003) 29 Cal. 4th 1096,
1104.)
“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, and we afford that decision great deference on appeal, reversing only for a
manifest abuse of discretion: “Because trial courts are ideally situated to evaluate the
efficiencies and practicalities of permitting group action, they are afforded great
discretion in granting or denying certification.” [Citation.] A certification order
generally will not be disturbed unless (1) it is unsupported by substantial evidence, (2) it
rests on improper criteria, or (3) it rests on erroneous legal assumptions. [Citations.]’
[Citations.] Predominance is a factual question; accordingly, the trial court’s finding that
common issues predominate generally is reviewed for substantial evidence. [Citation.]
We must ‘[p]resum[e] in favor of the certification order . . . the existence of every fact the
trial court could reasonably deduce from the record. . . .’ ” (Brinker, supra, 53 Cal.4th at
p. 1022.)
Velasco argues that the trial court erred in denying class certification because it
incorrectly assumed that Velasco would not be able to show that a substantial number of
the rolls sold in California were short of their advertised length. We conclude that
substantial evidence supports the trial court’s ruling that the proposed class was not
ascertainable.
The evidence showed that Trimaco sold 823,164 rolls of paper between 2008 and
2014. But Velasco offered no evidence showing how he could ascertain the class
members who purchased the product. “A factor in determining feasibility of the group
approach is the probability each member will come forward ultimately, identify himself
and prove his separate claim to a portion of the total recovery.” (Blue Chip Stamps v.
Superior Court (1976) 18 Cal. 3d 381, 386 (Blue Chip Stamps).)
3
The trial court noted that Velasco failed to provide any discovery to show that
credit card records of the sales of rolls were available, that they were searchable, and if
so, the cost of doing so. Nor had Velasco provided any discovery showing that any
substantial number of cash purchasers saved their receipts. (Devidan v. Automotive
Service Dealers Assn. (1973) 35 Cal. App. 3d 978, 982 [noting difficulty in ascertaining
class where thousands of transactions were conducted in cash without any written
substantiation].)
Moreover, other than pointing to himself and one other person who actually
measured the rolls, Velasco does not explain how he would identify those class members
who purchased short rolls or even any likelihood that they would have measured the rolls.
The evidence, at most, showed that Velasco purchased a roll of Builder’s Paper that
measured only 132 feet and nine inches in length rather than the 140 feet represented on
the label, and that three other rolls purchased by or through Velasco’s counsel1 measured
at less than 140 feet.2 Trimaco was aware that a variance in the length of rolls occurred
occasionally. The variance was attributable to worn counter gaskets on the machines that
produce the rolls. Trimaco routinely tested the counter measurements on the rolls and
conducted random checks of the gaskets and replaced them as needed. It maintained that
the rolls measured less than 140 feet only on one or two occasions. When a measurement
was off, Trimaco would install a new gasket to correct for the length discrepancy. Aside
from this evidence, Velasco provided no evidence on how frequently customers found the
rolls sold to be short. In light of this evidence, the trial court concluded that it could not
infer that a substantial number of rolls that were sold in California were short. On this
record, we agree with the trial court’s assessment that Velasco would not be able to
ascertain the class members. “ ‘Where a certification order turns on inferences to be
drawn from the facts,’ ” we are without authority to substitute our decision for that of the
1An employee for Velasco’s counsel purchased and measured a roll and a former
client purchased and measured two rolls.
2The other three rolls measured at 132 feet, seven inches; 131 feet, 9.5 inches;
and 135 feet, 10 inches.
4
trial court. (Davis-Miller v. Automotive Club of Southern California (2011)
201 Cal. App. 4th 106, 120.) Here, as in Collins v. Safeway Stores, Inc. (1986)
187 Cal. App. 3d 62, 65–66 (Collins), where the proposed class consisted of consumers
who purchased or consumed contaminated eggs during a five-month period, we are being
asked “to certify an economic class where not all products sold to the class were
defective and where the class members themselves do not know, and [may] never know
whether they purchased a defective product.” (Id. at p. 70.)
Relying on Reyes v. Bd. of Supervisors (1987) 196 Cal. App. 3d 1263, 1274
(Reyes), Velasco argues that he is not required at the class certification stage to establish
the existence and identity of class members. The Reyes court recognized, however, that a
party must have “sufficient means” for identifying class members at this stage of the
proceedings. (Ibid.) In Reyes, a welfare rights class action, the court determined that this
factor was satisfied because the county had the records to identify past general relief
recipients from its records. (Id. at p. 1275.) Here, there are no corresponding records.
Trimaco sold more than 800,000 rolls of paper to retail stores, and Velasco has not
proffered any evidence as to how the consumers of the product can be identified. (See
Sevidal v. Target Corp. (2010) 189 Cal. App. 4th 905, 919 (Sevidal) [class members could
not be identified because Target did not maintain or have records identifying individuals
who purchased a product with an erroneous country-of-origin designation].) In addition,
the administrative cost of attempting to determine class members would no doubt be
prohibitive particularly in light of the minuscule potential recovery for a short roll of
paper. (Ibid. [class members are ascertainable if they can be identified without
unreasonable expense or time by reference to business records].)
While not necessary to our decision to uphold the trial court’s ruling denying class
certification, we note, as did the trial court, that any potential recovery on a claim for a
short roll would be perhaps $0.05 to $0.50 per roll given the slight discrepancy of roll
length represented in Velasco’s sample of four rolls of 140 feet (from approximately four
5
to eight feet).3 This consideration also militates against certification of the class in light
of the lack of any appreciable benefit to class members. “ ‘[W]hen potential recovery to
the individual is small and when substantial time and expense would be consumed in
distribution, the purported class member is unlikely to receive any appreciable benefit.
The damage action being unmanageable and without substantial benefit to class
members, it must then be dismissed.’ ” (Collins, supra, 187 Cal.App.3d at p. 68, quoting
Blue Chip Stamps, supra, 18 Cal.3d at p. 386.)
Velasco also argues that the trial court relied on improper criteria in denying class
certification because it incorrectly applied the law in determining whether common issues
predominate over individual issues. We need not reach this issue, because we have
determined that plaintiff failed to prove the class is ascertainable. (In re Tobacco II
Cases (2009) 46 Cal. 4th 298, 318 (Tobacco II Cases) [prerequisite to class certification is
existence of an ascertainable class].)
Finally, Velasco’s reliance on Tobacco II Cases, supra, 46 Cal.4th at pages 322–
323, is misplaced. Velasco maintains that a different standard applies in determining
whether a class is ascertainable in a case involving a UCL claim. Tobacco II Cases does
not so hold. Rather, that case addressed the issue of whether all class members or only
the representative plaintiff had to meet the standing requirements in a UCL class action.
(Id. at pp. 321–323.) The Supreme Court held that unnamed class members were not
required individually to demonstrate standing in order to remain in the class. (Id. at
pp. 323–324.) The Supreme Court specifically distinguished Collins, supra,
187 Cal. App. 3d 62, noting that Collins involved the preliminary step of identifying the
existence of an ascertainable class. (Tobacco II Cases, supra, at p. 323; see Sevidal,
supra, 189 Cal.App.4th at p. 921 [“UCL claims brought as class actions remain subject to
the statutory class certification rules, including the requirement that the plaintiff show an
ascertainable class”].)
3 Velasco purchased the paper roll from the Home Depot for $10.98. Trimaco
sold the paper rolls to those stores for about $4.00 per roll.
6
On this record, the trial court did not abuse its discretion in denying Velasco’s
motion for class certification.
III. DISPOSITION
We affirm the trial court’s order denying class certification.
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_________________________
Rivera, J.
We concur:
_________________________
Ruvolo, P.J.
_________________________
Reardon, J.
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