Siechert & Synn v. Apple, Inc. CA6 ( 2015 )

Filed 2/6/15 Siechert & Synn v. Apple, Inc. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
SIECHERT & SYNN et al., H036402
(Santa Clara County
Plaintiffs and Appellants, Super. Ct. No. 1-05-CV-045719)
v.
APPLE INC.,
Defendant and Respondent.
Plaintiffs Siechert & Synn dba Techsource, Joe Weingarten dba Weingarten
Gallery, Pamela Rogers dba Horizon Resources and Horizon Computer Resources,
Omnitech Computer, and Computer Outlet appeal from the denial of their motion to
certify a class of “Apple Authorized Specialists” in their action against defendant Apple
Inc. Plaintiffs were formerly engaged in the business of selling Apple computers and
other Apple products. They sued Apple, alleging that the company’s decision to open its
own retail stores was part of a “fraudulent scheme and plan” to drive its independent
resellers out of business. Plaintiffs asserted that Apple concealed this scheme and
induced them to continue doing business with the company by assuring them that its own
stores would operate on a “level playing field” with theirs. They alleged among other
things that Apple favored its own stores to plaintiffs’ detriment by “deliberately”
withholding new products from resellers while making those products “readily available”
to its own stores and by “siphoning off” the resellers’ customers. Plaintiffs also alleged
that Apple gave “ ‘secret rebates’ ” to favored resellers such as CompUSA and Fry’s but
not to Specialists.
The trial court’s denial of plaintiffs’ class certification motion was based on
findings that they failed to show that common questions predominated over individual
issues or that a class action would be superior to individual lawsuits. We affirm the
order.
I. Background
Historically, Apple sold its products to consumers mainly through independent
resellers. These included large national chains like CompUSA, regional chains like
Fry’s, and smaller establishments like those of the plaintiff Specialists.
Specialists are a subset of the larger group of Apple’s authorized resellers. They
are so named because they specialize in the sale and service of Apple computers.
Specialists sign annual Specialist confirmation letters in addition to the authorized
reseller agreements that all Apple resellers sign.
Specialists comprise a diverse group of small to medium-sized businesses
pursuing various business plans and targeting different customers in markets across the
country. Some Specialists focus on retail sales. Others serve business customers only.
Some target specific industries like advertising or entertainment. Some Specialists have
multiple stores while others have only a single storefront. Some have no storefront at all.
Those with storefronts operate in a variety of different locations. Some are in high-traffic
shopping malls or on prominent shopping streets, while others are in places that attract
few to no casual browsers. Some Specialists’ stores are just blocks away from an Apple
store. Others are located in areas with multiple Apple stores. Others are hundreds of
miles from the nearest Apple store. Some Specialists keep millions of dollars of product
2
in inventory. Others (like plaintiff Horizon) carry little or no inventory, preferring to
purchase products when their customers place orders.
Apple’s share of the United States personal computer market declined
dramatically in the 1990’s, even after the company started selling computers online in the
late 1990’s. In an effort to reverse the decline, Apple decided to supplement its reseller
and online sales channels with its own retail stores. Its goal was to increase market share
by convincing the 95 percent of United States consumers who did not already own Apple
computers to buy them. The advertising slogan that proclaimed the May 2001 opening of
the first Apple stores announced this goal: “ ‘5 down. 95 to go.’ ”
Plaintiffs filed this action in February 2005 on behalf of two groups, a consumer
group and a resellers’ group. This appeal concerns the resellers’ group.1 Plaintiffs filed
their Eighth Amended Complaint in February 2009. It broadly defined the reseller class
to include “[a]ny Apple reseller in the United States who sold at retail Apple computer
products, Apple service, AppleCare service contracts, and/or repair services directly or
indirectly at any time between January 1, 1995, through the present . . . .” The complaint
asserted eight causes of action on behalf of the reseller class: (1) breach of contract, (2)
violation of the Unfair Competition Law (UCL; Bus. & Prof. Code, § 17200 et seq.),2 (3)
misappropriation of trade secrets, (4) fraud and deceit, (5) breach of the covenant of good
faith and fair dealing, (6-7) violations of the Cartwright Act (later dismissed without
prejudice), and (8) violation of the Unfair Practices Act (UPA; § 17000 et seq.).
The complaint alleged the following facts. In 1997, Apple began developing plans
to open its own retail stores “with the specific intent” to drive its independent resellers
out of business. Because there was a limit to the number of stores it could open each year
1
We decided the consumer group’s separate appeal in the related case of Branning
et al. v. Apple Inc. (H036343).
2
Subsequent statutory references are to the Business and Professions Code unless
otherwise noted.
3
and because its resellers were an important source of income, Apple wanted to continue
its relationship with its resellers until it could establish its own chain of stores. Apple
knew its resellers would be concerned about the impact of the Apple stores on their own
sales, so it “devised a fraudulent scheme and specific, uniform representations to be made
to all [r]esellers” to induce them to continue doing business with Apple. The “series of
false representations” or “mantra” that Apple allegedly developed included statements (1)
that the purpose of the Apple stores was to increase the company’s share of the computer
market and not to take sales away from resellers; (2) that the stores would be
“ ‘showcase’ stores” and have “a ‘billboard effect’ ” that would increase resellers’ sales;
(3) that “ ‘[a]ll ships will rise with the tide’ ” (meaning that resellers’ sales would rise
along with the retail stores’ sales); and (4) that Apple would ensure “ ‘a level playing
field’ ” (meaning that it “would not give any special preferences to the Apple retail stores
that would disadvantage the independent Resellers”).
Plaintiffs alleged that Apple distributed a bulletin to resellers before the first Apple
store opened in May 2001. It contained “specific assurances” that the Apple stores
“would be stocked the same as other [r]esellers so as not to have any ‘priority on product
supply or delivery,’ that they would not get demo units other than on the schedule of
other [r]esellers, and that the Apple retail stores would not have better pricing from Apple
than the pricing given by Apple to the [r]esellers.” Plaintiffs alleged that Apple repeated
these assurances in press releases and at store openings, in various meetings with
resellers, at a 2004 conference, and at the company’s 2005 annual meeting. The resellers
reasonably relied on the representations, continued their relationships with the company,
and continued to invest millions of dollars in their businesses to promote sales of Apple
products. Plaintiffs (with the exception of Siechert & Synn, which dismissed its fraud
cause of action) and the reseller class suffered “severe monetary damages” as a direct
result of Apple’s intentional misrepresentations and concealment.
4
Plaintiffs alleged that as part of its scheme to drive them out of business, Apple (1)
located its retail stores in close proximity to successful resellers’ stores “for the specific
purpose of siphoning off” their customers; (2) intentionally failed to provide resellers
with Apple merchandise, goods, and services and support for Apple products sold and/or
serviced by the resellers; (3) deliberately withheld new products from resellers while
making them available to the public through the Apple stores; (4) misrepresented to the
resellers that new products were unavailable while providing them to the Apple retail and
online stores; (5) “bypassed” resellers and used resellers’ confidential customer
information “to contact, solicit and deal directly with” resellers’ customers and prospects;
(6) failed to properly honor warranties sold by resellers; (7) “consistently failed to
acknowledge and respond” to critical questions from the resellers; and (8) failed and
refused to provide proper credits to resellers when credits were clearly due to them.
Plaintiffs also alleged that Apple misrepresented the nature and quality of the equipment
it sold to resellers, shipped defective replacement parts and/or equipment to them, and
failed to appropriately reimburse them for warranty work. Plaintiffs alleged that they and
the reseller class were “damaged in an amount to be proven . . . at trial, but in an amount
in excess of $25,000.00.”
The complaint alleged that Apple also engaged in unfair practices by (1) giving
favored resellers like CompUSA and Fry’s “secret discounts, allowances, rebates and
development funds” not offered to other resellers; (2) selling service contracts to
CompUSA at a substantial discount; (3) providing CompUSA with Apple-paid
employees; (4) accepting defective products from Apple stores and from preferred
resellers but not from other resellers; and (5) providing cooperative advertising
allowances, sales promotions, and market development funds to Apple stores and to
preferred resellers but not to other resellers. Plaintiffs alleged that these secret rebates
gave the favored resellers a major pricing advantage that had the inherent tendency to
5
destroy competition and caused plaintiffs injury in an amount not yet ascertained but in
excess of $25,000.
In November 2009, plaintiffs moved to certify a much narrower class than the all-
resellers class their Eighth Amended Complaint defined. They defined this narrower
class as “ ‘[a]ll persons in the United States who were Apple Authorized Specialists on
January 1, 2001, or became Specialists between that date and January 1, 2004.’ ”
Plaintiffs’ memorandum of points and authorities focused on Apple’s alleged secret plot
to put them out of business and on the “scripted misrepresentations” that it allegedly
made to convince them to continue doing business with Apple until it could establish its
own stores. Plaintiffs argued that “Apple’s plan, its execution of that plan, its uniform
omissions and misrepresentations to the class and the legal and factual effect of its
conduct on the Specialists” could be proven with common evidence and that “[e]ven
damages . . . can be computed on a classwide basis.”
Plaintiffs argued with respect to their contract causes of action that Specialists
signed form contracts and that Apple’s common “plan to destroy the Specialists” targeted
the entire class and deprived them of the benefits of their contracts. They asserted that
“[w]hether Apple unfairly favored its own stores in allocating new product” was “one of
the many factual issues shared by the class.”
Plaintiffs argued with respect to their fraud cause of action that the element of
reliance was no impediment to class treatment because reliance would be presumed “in
light of the uniformity and materiality of Apple’s omissions and representations to the
class.” They claimed that whether Apple gave certain stores a pricing advantage over
Specialists in violation of the UPA could also be established by proof common to the
class.
Six of the seven plaintiffs submitted declarations in support of the motion. Several
of their lawyers, their litigation consultant Thomas Santos (a former Apple authorized
6
reseller who was pursuing an individual lawsuit against Apple), and their damages expert
D. Paul Regan also provided declarations.
Apple opposed the motion, arguing among other things that class certification
could not be based on an alleged “scheme” to drive Specialists out of business because
there was no substantial evidence that any such scheme ever existed. Apple pointed out
that plaintiffs’ reliance on an analysis that a consulting firm prepared before the decision
was made to move forward with the retail stores project did not evidence Apple’s state of
mind and did not in any event establish a plan to put the resellers out of business. It
submitted evidence controverting plaintiffs’ contention that its plan was to “cannibalize”
its resellers’ sales, noting that any such plan would have doomed the project. “This is
common sense,” Apple argued. “[I]t would make no sense for Apple to incur the expense
of opening retail stores in locations like 5th Avenue in New York or Michigan Avenue in
Chicago just to sell to the same customers who otherwise would have bought from the
Specialists.”
Apple declared unequivocally that no scheme to put Specialists out of business
ever existed. It submitted business plans reflecting its continuing commitment to support
its resellers in general and Specialists in particular.
Apple also presented evidence that Specialists as a group have succeeded since
2001, as shown by the substantial growth of the company’s sales to the group since the
Apple stores opened. Many individual Specialists saw their sales of Apple products
double or triple or more since 2001. Twelve of those Specialists submitted declarations
describing their businesses’ remarkable success since 2001, which many attributed in part
to the increase in brand awareness that resulted from the opening of the Apple stores.
Apple’s expert economist Michael Keeley, Ph.D. explained that Apple had no incentive
to undermine Specialists or other resellers. Nor did it have any incentive to invest
billions to launch retail stores that would do no more than make sales that Specialists and
other resellers would have made anyway. It is a “common misconception” that
7
manufacturers earn more profit by taking over retailing from their independent resellers.
In fact, the opposite is true. Multiple retail channels allow Apple to serve a broader range
of customers than it could serve through a single channel like the Apple stores. Keeley
pointed out that Apple did not need to resort to the actions that plaintiffs alleged. If a
Specialist were damaging Apple’s brand image, Apple could end its relationship with that
Specialist simply by terminating its contractual relationship. It would not be in Apple’s
interest to resort to the actions that plaintiffs alleged because those actions would harm its
customers and its reputation.
Apple urged as a second basis for denying plaintiffs’ motion that individual rather
than class issues would predominate. It addressed plaintiffs’ deception-based claims
first, arguing that courts have certified fraud claims for class treatment “only in
exceedingly rare cases where there was clear evidence that defendants made identical
representations to each class member,” which was not the case here. Apple emphasized
the absence of evidence that any Specialist received any of the internal Apple documents
that plaintiffs mischaracterized and purported to rely on. It noted plaintiffs’ failure to
identify any uniform oral misrepresentations. It submitted evidence showing wide
variation in what (if anything) various Specialists claimed they were told and how they
interpreted those statements.
Apple argued that individual issues would also predominate with respect to
reliance on the alleged fraud. It maintained that plaintiffs Siechert & Synn and
Weingarten could not prove reliance because statements that Tom Siechert and
Weingarten made and broadcasted to their fellow Specialists as early as 2001 established
that neither had believed the alleged misrepresentations. It pointed to Seichert’s
deposition testimony that he was “sure” there were other Specialists who also disbelieved
“what we were being told.”
Apple also submitted evidence that Rogers and Omnitech’s Frank O’Neil both
admitted that they would have become Specialists whether or not Apple promised them
8
“priority allocation.” Both continued to sign Specialist contracts even after they
assertedly concluded that Apple lied to them about its retail stores. Apple produced
evidence that other named plaintiffs and many other Specialists continued to sign
Specialist agreements after January 2004, when plaintiffs claimed the company’s “true
intention” to put them out of business was revealed.
Apple argued that plaintiffs’ fraud claim also raised “inherently individualized”
statute of limitations issues. The complaint was filed on February 17, 2005. In 2008, the
trial court ruled that the fraud claims were barred by the three-year statute of limitations
(Code Civ. Proc., § 338, subd. (d)) unless plaintiffs could establish delayed discovery.
Apple argued that the 2008 ruling applied to all proposed class members, who would
have to prove when and how they discovered the alleged fraud and establish that they
could not have discovered it earlier.
Apple argued that plaintiffs’ good faith and fair dealing cause of action also raised
predominately individual issues. Plaintiffs asserted that their Specialist contracts
promised them “ ‘priority product allocation’ ” and that Apple’s alleged scheme to
“ ‘starve’ ” them of new products deprived them of the benefit of those Specialist
contracts. Apple presented evidence that the agreement that every reseller signs has
always given Apple the right to allocate inventory on a basis that it in its sole discretion
deems equitable. It noted that “priority product allocation” was not defined in any of the
documents that plaintiffs relied on. It submitted evidence that each named plaintiff
interpreted those words quite differently. Apple argued that in these circumstances,
determining the meaning of the phrase would require the court to consider extrinsic
evidence of what each Specialist was told and what documents each received. Even if
plaintiffs had evidence that there was a scheme to starve them of new products, “each
class member still would have to prove that it was impacted” by the scheme. To support
its claim that this could not be done by class proof, Apple submitted evidence showing
9
that “constrained”3 product was allocated to Specialists on an individual basis, with
various considerations affecting how much a particular Specialist received. For example,
only some Specialists participate in a program that allows them to receive certain
products prior to release. Specialists in higher tiers of the program can be provided with
product before Apple supplies those in the lower tiers. And not all Specialists are
affected by every product shortage because not all of them order every constrained
product. Specialists that target businesses, for example, typically focus on computers, not
iPods.
Apple argued that plaintiffs’ own experiences confirmed that individual issues
would predominate with respect to their good faith and fair dealing claim. It produced
evidence that Omnitech and Weingarten had access to constrained product at the same
time as the closest Apple retail stores, which were 40 to 70 miles away, and that it
shipped constrained product to Omnitech and Weingarten even before it filled all of the
nearby retail stores’ orders. It also presented evidence that Specialists experienced delays
in receiving product for reasons that had nothing to do with Apple’s allocation decisions.
A former Omnitech employee testified that Omnitech experienced delays because of its
credit problems. Other Specialists ordered their products from third-party distributors,
who made their own allocation decisions. Thus, Apple argued, resolving allocation-
related claims would require inquiry into facts unique to each Specialist and unique to
each order. These would include when the order was placed, what quantity was ordered,
whether it was ordered from Apple or from an independent distributor, when it was
received, whether the Specialist had the cash or credit to pay for the product, whether any
delay was caused by circumstances that had nothing to do with the alleged scheme,
whether any Apple retail stores in the Specialist’s market had access to the product when
3
A product is “constrained” when the orders for that product exceed Apple’s
available inventory. During times of product constraint, every channel (including
Apple’s retail store channel) wants more of the constrained product than it receives.
10
the Specialist did not, and whether the Specialist would have been able to sell more
product had it received more. Apple maintained that these individual issues would
“overwhelm” any common issues.
Apple next addressed plaintiffs’ secret rebates claim, asserting that it was unaware
of “a single case certifying this kind of claim for class treatment.” Apple argued that
such claims are not amenable to class treatment because each plaintiff must prove
competitive injury. Specialists who were not located near any of the resellers that Apple
allegedly favored or who did not compete with those resellers for some other reason
could not prove competitive injury. Those who did compete with an allegedly favored
reseller would have to prove that the rebates given to the reseller, and not any other
factors, caused the Specialist to lose sales or profits. That inquiry would involve facts
unique to each member of the proposed class.
Apple next addressed injury, causation, and damages issues, arguing that these
were inherently individualized inquiries that would overwhelm any common questions.
It pointed to expert economist Keeley’s report, which identified the many company-
specific factors that would affect any analysis of whether Apple’s alleged conduct
harmed a particular Specialist and the extent of any such harm. Apple argued that
plaintiffs’ testimony and the 12 declarations from non-plaintiff Specialists whose
businesses have enjoyed tremendous success illustrated that each individual Specialist’s
profitability is determined by a myriad of factors. Apple argued that plaintiffs could not
“finesse” this issue with their expert Regan’s opinion that “it is possible to calculate the
economic damages suffered by the Apple Specialist Resellers on a class-wide basis.”
Apple emphasized that Regan described his opinion as a hypothetical damages model that
was not based on actual data. Regan admitted that he had not finalized or tested the
model. Regan also admitted that he could not offer any opinions on whether any of the
named plaintiffs suffered economic damages. Apple dismissed Regan’s opinion as
irrelevant. It noted that California limits recovery for injury to a business to lost net
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profits. Regan admitted that his hypothetical model would calculate only lost gross
profits.
The trial court took the matter under submission after a lengthy hearing at which
both sides utilized slide presentations. The court issued a written order denying the
motion. The court found that plaintiffs “did not meet their burden of showing that
common questions of law or fact would predominate over the questions affecting
individual members.” The court specifically found that “[w]ith regard to the fraud-based
claims . . . , each class member will need to prove delayed discovery in order to get past
Apple’s statute of limitations defense. This is an inherently individualized inquiry.”
“Further, each member will need to present highly individualized evidence
regarding the representations he or she heard, his or her reliance upon the representations,
whether the damages suffered were proximately caused by the fraud (as opposed to other
unique factors such as their market, location, state of the local economy, level of service
at the store, and management expertise), and the amount of damages.”
“With regard to contract-based claims . . . , individual issues will also
predominate. The evidence shows that each of the Plaintiffs has a highly individual
claim with regard to allocation. The same would be expected of each member of the
Specialist Class. In other words, there is no commonality with regard to which products
were wrongfully withheld from members of the Specialist Class. Further, there are also
substantial variations in the confirmation letters that Apple provided to members of the
Specialist Class during the Class Period. Each member of the Specialist Class would
have to present highly individualized evidence regarding which products were withheld
or delayed, when those products were ordered, when they were received, whether Apple
retail stores and/or Apple Online was treated more favorably as to allocation of those
products, whether the member’s own conduct (such as credit problems or conditions
attached to an order) caused the withholding or delay, whether the withholding or delay
of those products proximately caused damage, and the amount of damage.”
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“With regard to the misappropriation of trade secrets claims . . . , individual issues
would predominate as to the existence of a trade secret, the use or misappropriation of the
trade secret, proximate causation, and amount of damages.” “With regard to the secret
rebates claims . . . , individual issues would predominate as to whether each class
member suffered a ‘competitive injury.’ ”
As a second basis for its denial of class certification, the court found that “all of
the factors point to individual lawsuits being superior to a class action.” Plaintiffs filed a
timely notice of appeal from the trial court’s order.
II. Discussion
Plaintiffs challenge the denial of their motion. They contend that the trial court
“incorrectly applied class certification standards, used improper criteria and made
erroneous legal assumptions and unsupported, irrelevant factual findings.” We disagree.
“ ‘The certification question is “essentially a procedural one that does not ask
whether an action is legally or factually meritorious.” ’ ” (Brinker Restaurant Corp. v.
Superior Court (2012) 53 Cal. 4th 1004, 1023 (Brinker).) “Presented with a class
certification motion, a trial court must examine the plaintiff’s theory of recovery, assess
the nature of the legal and factual disputes likely to be presented, and decide whether
individual or common issues predominate. To the extent the propriety of certification
depends upon disputed threshold legal or factual questions, a court may, and indeed must,
resolve them.” (Brinker, at p. 1025.)
“As the focus in a certification dispute is on what type of questions—common or
individual—are likely to arise in the action, rather than on the merits of the case
[citations], in determining whether there is substantial evidence to support a trial court’s
certification order, we consider whether the theory of recovery advanced by the
proponents of certification is, as an analytical matter, likely to prove amenable to class
treatment. [Citations.] ‘Reviewing courts consistently look to the allegations of the
13
complaint and the declarations of attorneys representing the plaintiff class to resolve this
question.’ ” (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal. 4th 319, 327.)
“The party advocating class treatment must demonstrate the existence of an ascertainable
and sufficiently numerous class, a well-defined community of interest, and substantial
benefits from certification that render proceeding as a class superior to the alternatives.
[Citations.] ‘In turn, the “community of interest requirement embodies three factors: (1)
predominant common questions of law or fact; (2) class representatives with claims or
defenses typical of the class; and (3) class representatives who can adequately represent
the class.” ’ ” (Brinker, supra, 53 Cal.4th at p. 1021.)
“The ‘ultimate question’ the element of predominance presents is whether ‘the
issues which may be jointly tried, when compared with those requiring separate
adjudication, are so numerous or substantial that the maintenance of a class action would
be advantageous to the judicial process and to the litigants.’ . . . A court must examine
the allegations of the complaint and supporting declarations [citation] and consider
whether the legal and factual issues they present are such that their resolution in a single
class proceeding would be both desirable and feasible. [Fn. omitted] ‘As a general rule
if the defendant’s liability can be determined by facts common to all members of the
class, a class will be certified even if the members must individually prove their
damages.’ ” (Brinker, supra, 53 Cal.4th at pp. 1021-1022.) “[The court] must determine
whether the elements necessary to establish liability are susceptible of common proof or,
if not, whether there are ways to manage effectively proof of any elements that may
require individualized evidence.” (Brinker, at p. 1024.)
A. Standard of Review
“ ‘The decision [whether] to certify a class rests squarely within the discretion of
the trial court, and we afford that decision great deference on appeal, reversing only for a
manifest abuse of discretion: “Because trial courts are ideally situated to evaluate the
14
efficiencies and practicalities of permitting group action, they are afforded great
discretion in granting or denying certification.” [Citation.] A certification order
generally will not be disturbed unless (1) it is unsupported by substantial evidence, (2) it
rests on improper criteria, or (3) it rests on erroneous legal assumptions. [Citations.]’
[Citations.] Predominance is a factual question; accordingly, the trial court’s finding that
common issues predominate generally is reviewed for substantial evidence. [Citation.]
We must ‘[p]resum[e] in favor of the certification order . . . the existence of every fact the
trial court could reasonably deduce from the record . . . .’ ” (Brinker, supra, 53 Cal.4th at
p. 1022.)
“The appeal of an order denying class certification presents an exception to the
general rule that a reviewing court will look to the trial court’s result, not its rationale. If
the trial court failed to follow the correct legal analysis when deciding whether to certify
a class action, ‘an appellate court is required to reverse an order denying class
certification . . . , “even though there may be substantial evidence to support the court’s
order.” ’ [Citations.] In other words, we review only the reasons given by the trial court
for denial of class certification, and ignore any other grounds that might support denial.”
(Bartold v. Glendale Federal Bank (2000) 81 Cal. App. 4th 816, 828-829.)
B. Predominance—Fraud Claim
Plaintiffs contend that the trial court erred in concluding that they failed to
establish the predominance of common questions with respect to their fraud claim. We
disagree.
1. Fraud Claim—Statute of Limitations
Plaintiffs challenge the trial court’s finding that Apple’s statute of limitations
defense to their fraud claim would require an inherently individualized inquiry since
“each class member will need to prove delayed discovery in order to get past” that
defense. They claim the court was “legally wrong to believe that it could deny
15
certification based on individual statutes of limitations issues” and that it “also erred in
concluding that individual issues arose . . . .” We deem these arguments forfeited by
plaintiffs’ failure to raise them below in response to Apple’s contention that their fraud
claim raised individualized statute of limitations and delayed discovery issues.
(Fairbanks v. Farmers New World Life Ins. Co. (2011) 197 Cal. App. 4th 544, 552.)
We would reject these arguments even if we assumed that plaintiffs preserved
them. In examining whether common issues of law or fact predominate, “[t]he
affirmative defenses of the defendant must also be considered, because a defendant may
defeat class certification by showing that an affirmative defense would raise issues
specific to each potential class member and that the issues presented by that defense
predominate over common issues. [Citations.]” (Walsh v. IKON Office Solutions, Inc.
(2007) 148 Cal. App. 4th 1440, 1450.) The trial court did not err in considering whether
Apple’s statute of limitations defense would raise predominately individual issues.
(Kennedy v. Baxter Healthcare Corp. (1996) 43 Cal. App. 4th 799, 811.)
The trial court’s finding that Apple’s statute of limitations defense to plaintiffs’
fraud claim would require an inherently individualized inquiry was supported by
substantial evidence. To establish delayed discovery, class members will need to prove
when and how they discovered the alleged fraud and why they could not have discovered
it sooner. (McKelvey v. Boeing North American, Inc. (1999) 74 Cal. App. 4th 151, 160.)
This cannot be done with common evidence because there was substantial evidence that
each of the named plaintiffs has a different story. Apple submitted evidence that Siechert
complained to the Federal Trade Commission in May 2001, accusing Apple of fraud and
asserting that it was trying to eliminate its resellers. He began disseminating those views
via the “SpeciaList” listserve in May 2001, cautioning his fellow Specialists not to
believe what Apple was telling them about the retail stores. Siechert eventually
dismissed his fraud cause of action.
16
Plaintiff Weingarten began broadcasting views similar to Siechert’s on the
listserve in 2001, warning other Specialists that Apple “will continue the stores and try
and put every one of you out of business.” Notwithstanding this and similar 2001 e-
mails, the complaint alleges (and Weingarten declared) that he did not discover Apple’s
“true intentions” to drive the resellers out of business until January 1, 2004, when Apple
executives “failed to communicate again with” him about issues he raised in a 2003 e-
mail and later discussed with them. Plaintiffs Rogers, Mel Weisblatt of Computer Outlet,
and O’Neil claimed that they discovered Apple’s “true intentions” at different times and
in varying ways in the latter part of 2003 and early 2004.
The e-mails that Siechert and Weingarten broadcasted to the listserve in 2001,
Weingarten’s declaration, and Siechert’s dismissal of his fraud cause of action supported
a conclusion that when and how each member of the proposed class discovered the
alleged fraud and why he or she could not have done so earlier cannot be proven by
common evidence. Substantial evidence thus supported the trial court’s finding that
Apple’s statute of limitations defense to plaintiffs’ fraud claim would require an
individualized inquiry.
Plaintiffs criticize the court’s “unexplained conclusion” that their UCL claim also
raised individual statute of limitations issues. They base their argument on the following
paragraph from the court’s order denying certification: “In this case, Plaintiffs did not
meet their burden of showing that common questions of law or fact would predominate
over the questions affecting individual members. With regard to the fraud-based claims
(9th and 11th causes of action), each class member will need to prove delayed discovery
in order to get past Apple’s statute of limitations defense. [Italics added.] This is an
inherently individualized inquiry. A defendant may defeat class certification by showing
that an affirmative defense would raise issues specific to each potential class member and
that the issues presented by that defense predominate over common issues. [Citation.]
Further, each member will need to present highly individualized evidence regarding the
17
representations he or she heard, his or her reliance upon the representations, whether the
damages suffered were proximately caused by the fraud (as opposed to other unique
factors such as their market, location, state of the local economy, level of service at the
store, and management expertise), and the amount of damages.”
In the context of this case, we think the reference to plaintiffs’ ninth cause of
action (for violation of the UCL) was a mistake. Plaintiffs’ motion papers confusingly
referred to “the class’s deception-based claims—their claims of fraudulent business
practices under the UCL and common-law fraud.” But their eighth amended complaint
does not assert a claim for fraudulent business practices. Their ninth cause of action for
unlawful business practices in violation of the UCL is based on allegations that Apple
sold its resellers used and/or refurbished products as new. It says nothing about a scheme
to drive the resellers out of business. To the extent that plaintiffs have a claim for
fraudulent business practices under the UCL based on allegations that Apple engaged in
any such scheme, that claim is unpleaded.
Apple did not argue in opposition to class certification that plaintiffs’ UCL claim
was time-barred. It argued that their fraud claim raised “fundamental individual issues
regarding the statute of limitations.” The trial court had in 2008 ruled that the fraud
claim was time-barred unless plaintiffs could establish delayed discovery. The 2008
order said nothing about the UCL claim. Against this background, we conclude that the
trial court’s mention of plaintiffs’ ninth cause of action was a mistake rather than a
“conclusion” that the UCL claim raised individual statute of limitations issues.
2. Fraud Claim—Reliance
Plaintiffs challenge the trial court’s finding that “each member will need to present
highly individualized evidence regarding the representations he or she heard [and] his or
her reliance upon the representations.” They assert that individual issues will not arise
because “reliance is presumed or inferred upon a showing that the information misstated
or concealed was material to a reasonable person.” We disagree.
18
The cases plaintiffs rely on to support their argument are inapposite. In re
Tobacco II Cases (2009) 46 Cal. 4th 298 (Tobacco II) and Massachusetts Mutual Life Ins.
Co. v. Superior Court (2002) 97 Cal. App. 4th 1282 (Massachusetts Mutual) are UCL
fraudulent business practices cases. “ ‘[T]he “fraud” contemplated by section 17200 [ ]
. . . bears little resemblance to common law fraud or deception.’ ” (Massachusetts
Mutual, at p. 1290.) “The fraudulent business practice prong of the UCL has been
understood to be distinct from common law fraud.” (Tobacco II, at p. 312.) Neither of
the cases that plaintiffs cite supports a presumption of reliance in common law fraud
cases like this one.
Plaintiffs next argue that “classwide reliance will be presumed or inferred because
Apple’s misrepresentations were uniform, and were written or scripted.” They raised a
similar argument below. The trial court properly rejected it.
Reliance is a necessary element of a claim for fraud. Alliance Mortgage Co. v.
Rothwell (1995) 10 Cal. 4th 1226, 1239 (Alliance).) “California courts have always
required plaintiffs in actions for deceit to plead and prove the common law element of
actual reliance.” (Mirkin v. Wasserman (1993) 5 Cal. 4th 1082, 1092 (Mirkin).) Actual
reliance must also be pleaded and proved in cases averring fraud by omission. (Id. at
pp. 1092-1093.) In rare situations, “when the same material misrepresentations have
actually been communicated to each member of a class, an inference of reliance arises as
to the entire class.” (Id. at p. 1095, citing Vasquez v. Superior Court (1971) 4 Cal. 3d 800
(Vasquez) and Occidental Land, Inc. v. Superior Court (1976) 18 Cal. 3d 355 (Occidental
Land).)
Plaintiffs’ reliance on Vasquez and Occidental Land is misplaced. Reliance was a
common issue in Vasquez but only under what the Mirkin court called “the peculiar facts
of the case.” (Mirkin, supra, 5 Cal.4th at p. 1094.) The plaintiffs in Vasquez bought
frozen meat and freezers on installment contracts. (Vasquez, supra, 4 Cal.3d at p. 805.)
They sued the sellers for fraudulently misrepresenting the price and value of the
19
merchandise. The trial court sustained demurrers to the class action aspect of the fraud
count. (Id. at pp. 805-806.) The high court granted the plaintiffs’ writ petition,
explaining that the plaintiffs claimed they could demonstrate on a classwide basis that the
alleged representations were in fact made to each class member. They could do so
“because the salesmen employed by [the defendant] memorized a standard statement
containing the representations (which in turn were based on a printed narrative and sales
manual) and . . . this statement was recited by rote to every member of the class.” (Id. at
pp. 811-812.) “The demurrers must be deemed to admit these facts. If plaintiffs can
prove their allegations at the trial, an inference that the representations were made to each
class member would arise, in which case it would be unnecessary to elicit the testimony
of each plaintiff as to whether the representations were in fact made to him.” (Id. at
p. 812, fn. omitted.) If the trial court found the misrepresentations were material, “at
least an inference of reliance would arise as to the entire class.” (Id. at p. 814.)
Occidental Land presented a similar situation. The plaintiff homebuyers in that
case alleged that the defendant developer misrepresented the future cost of maintaining
certain common areas. Relying on Vasquez, the court held that actual reliance was
susceptible of common proof because the alleged misrepresentations were contained in a
public report and “[e]ach purchaser was obligated to read the report and state in writing
that he had done so.” (Occidental Land, supra, 18 Cal.3d at pp. 358, 361.)
This case is different. Unlike in Vasquez or Occidental Land, there was no
evidence here that the alleged “series of false representations” was “in fact made” to each
class member. (Vasquez, supra, 4 Cal.3d at pp. 811-812.) There was no evidence that
each class member expressly acknowledged reading or hearing the identical series of
false misrepresentations. (Occidental Land, supra, 18 Cal.3d at pp. 358.) The
Vasquez/Occidental Land inference of reliance does not apply without uniform material
misrepresentations having been actually made to class members. (E.g., Kaldenbach v.
Mutual of Omaha Life Ins. Co. (2009) 178 Cal. App. 4th 830, 846-847 (Kaldenbach).)
20
Plaintiffs argue that classwide reliance should be presumed or inferred because the
“representation that Specialists would receive ‘priority’ allocation was in writing in every
Specialist’s written contract.” Not so. The Specialist confirmation letters described some
of the benefits and requirements of the Specialist program. Those benefits and
requirements varied over time. The confirmation letters also varied over time, as plaintiff
O’Neil acknowledged. There was no uniform representation about “ ‘priority’
allocation.” Classwide reliance is not properly inferred in circumstances like these, as the
trial court properly concluded. (Kaldenbach, supra, 178 Cal.App.4th at pp. 846-847.)
Any inference of reliance here would be particularly inappropriate because there
was affirmative evidence that the allegedly “scripted” misrepresentations were not
communicated to all Specialists or even to all of the named plaintiffs. Plaintiff Weisblatt
asserted in a declaration that Apple representatives told him there would be “a ‘level
playing field’ ” between the Apple stores and resellers’ stores. But he admitted in
deposition that he did not recall any conversations in which Apple representatives used
that term to reassure him about how the retail stores would operate in relation to
Specialists like him. He testified that Apple representatives stated at gatherings of
resellers that the company was going to give Specialists “a fair shake” or words to that
effect, that the retail stores were going to expand business “for the whole Apple
corporation and that we would get a large part of that,” and that “the dealers were
important and they would be taken care of basically.”
Plaintiff O’Neil could not recall being told that “ ‘all ships will rise with the tide’ ”
and he equivocated when asked whether Apple representatives told him that the Apple
stores would be on “ ‘a level playing field’ ” with resellers’ stores. Other Specialists
declared that they were “never” told that all ships would rise with the tide, that the retail
stores would be on a level playing field with the Specialists’ stores, or that they or any
Specialist would receive product before the retail stores or before any other Apple
reseller. Substantial evidence thus supported the trial court’s finding that each class
21
member would need to present highly individualized evidence regarding the particular
representations that he or she claimed to have heard.
Substantial evidence also supported the trial court’s finding that each class
member would need to present individualized evidence about how he or she relied on the
alleged misrepresentations. There was evidence that not all Specialists heard the alleged
misrepresentations. A person obviously cannot establish actual reliance on a
misrepresentation that he or she never heard. (Mirkin, supra, 5 Cal.4th at pp. 1089,
1100.)
Nor can a person claim to have been deceived by a misrepresentation that he or
she did not believe. (Maxon-Nowlin Co. v. Norswing (1913) 166 Cal. 509, 511-512.)
There was evidence that not all Specialists believed the misrepresentations they claim to
have heard. Weingarten’s 2001 posts to the listserve warned of “Apple’s long range
plan” to “do away with all you resellers.” O’Neil testified based on his recollection of
other Specialists’ postings to the listserve that at least some of them did not believe that
the retail stores would increase Specialists’ sales. Siechert testified that he was “sure”
there were “other folks that didn’t believe what we were being told.”
Apple presented evidence that called some Specialists’ claimed reliance on the
alleged misrepresentations into question. “Reliance exists when the misrepresentation or
nondisclosure was an immediate cause of the plaintiff’s conduct which altered his or her
legal relations, and when without such misrepresentation or nondisclosure he or she
would not, in all reasonable probability, have entered into the contract or other
transaction. [Citation.]” (Alliance, supra, 10 Cal.4th at p. 1239.) Rogers testified that
she “[p]robably” would have become a Specialist with or without a promise of priority
product allocation. Rogers continued to sign reseller and Specialist contracts for years
after she claimed to have discovered Apple’s alleged scheme to put her out of business.
O’Neil did the same. All of this evidence amply supported the trial court’s finding that
reliance was not susceptible of classwide proof. Instead, each class member would need
22
to present “highly individualized evidence” about which representations he or she heard
and how (if at all) he or she relied on them.
3. Fraud Claim—Causation and Damages
Plaintiffs challenge the trial court’s finding that their fraud claim would require
each member of the class to provide “highly individualized evidence regarding . . .
whether the damages suffered were proximately caused by the fraud (as opposed to other
unique factors such as their market, location, state of the local economy, level of service
at the store, and management expertise) and the amount of damages.” To the extent they
contend that the court should not have considered whether causation and damages raised
predominately individual issues, we reject the contention.
“ ‘[R]esulting damage’ ” is a necessary element of fraud. (Alliance, supra, 10
Cal.4th at p. 1239.) “Deception without resulting loss is not actionable fraud. [Citation.]
‘Whatever form it takes, the injury or damage must not only be distinctly alleged but its
causal connection with the reliance on the representations must be shown.’ [Citation.]”
(Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal. App. 4th 1807, 1818.) Thus, the
trial court did not err in considering whether proximate cause and damages could be
proven on a classwide basis. (Brinker, supra, 53 Cal.4th at p. 1023.)
Plaintiffs maintain that the trial court “disregarded how such class damages are
tried and assumed that they would be proven on a strictly individual basis, which is
contrary to law.” Their reliance on In re Cipro Cases I & II (2004) 121 Cal. App. 4th 402
(Cipro) is misplaced. In Cipro, the court affirmed an order certifying a Cartwright Act
price-fixing case as a consumer class action. It did so after determining (among other
things) that substantial evidence supported the trial court’s finding that damages were
susceptible of classwide proof by expert testimony without regard to the particular
circumstances of each individual class member. (Id. at pp. 411.) The Cipro court did not
hold or suggest that the calculation of aggregate classwide damages is appropriately
based on a formula in all or most cases. Nor did the Cipro court suggest that it is an
23
abuse of discretion for a trial court to deny certification when it concludes that
determining the fact and extent of class members’ damages would require individualized
inquiries that would preclude a finding that common issues predominate. The court
expressly recognized that “[i]t is within the trial court’s discretion to weigh the inherent
imperfections of such approximations against the vindication of important statutory
policies and the burden to the courts of proving damages on a strictly individual basis.”
(Cipro, at p. 418.)
The important statutory policies implicated in Cipro address anticompetitive
conduct. As the court noted, “claims of anticompetitive collusion resulting in higher
market prices are particularly suited for class treatment.” (Cipro, supra, 121 Cal.App.4th
at p. 415.) “[I]t has long been recognized [in the antitrust context] that, although the fact
of injury must be established with reasonable certainty, a less rigid standard of proof is
imposed with respect to the amount of damage caused by an antitrust violation, because
economic harm in such actions is difficult to quantify.” (Evans v. Lasco Bathware, Inc.
(2009) 178 Cal. App. 4th 1417, 1431 (Evans).) In such cases, “rather than deny any
recovery to those injured by anticompetitive activity because they cannot prove damages
with exactitude, ‘it will be enough if the evidence show [sic] the extent of the damages as
a matter of just and reasonable inference, although the result be only approximate.’
[Citation.]” (Evans, at p. 1431, quoting Story Parchment Co. v. Paterson Parchment
Paper Co. (1931) 282 U.S. 555, 563.)
Here, no such difficulties of proof exist. This is not an antitrust case. Cipro does
not advance plaintiffs’ position.
Plaintiffs assert that individual issues of causation “[d]o [n]ot [p]redominate.” We
disagree. Substantial evidence supported the trial court’s finding that plaintiffs’ fraud
claim raised predominately individual issues of causation and damages. Plaintiffs’ theory
of recovery was that the alleged fraudulent misrepresentations caused them to suffer
“substantial loss of customers, business and sales over time, substantially diminishing the
24
value of their businesses.” Their claim is one for lost profits, the fact and extent of which
must be shown “ ‘with reasonable certainty.’ ” (Sanchez-Corea v. Bank of America (1985)
38 Cal. 3d 892, 907-908.) Plaintiffs cannot recover profits lost for reasons unrelated to
Apple’s alleged wrongdoing. (Continental Car-Na-Var Corp. v. Moseley (1944) 24
Cal. 2d 104, 113.)
Apple’s expert economist Keeley identified numerous firm-specific factors
unrelated to Apple’s alleged wrongdoing that can affect an individual Specialist’s
performance. These included the number of storefronts, their location, their target
customers, product mix and service offerings, their reliance on Apple products, their
inventory practices, and the extent of competition from other resellers and other computer
retailers. We have already described the many differences among the Specialists with
respect to those factors. (Ante, at pp. 2-3.) As Keeley explained, it can be inferred from
these differences that any effect of Apple’s alleged conduct would vary from Specialist to
Specialist.
The record illustrates the point. There was evidence that some Specialists who
claimed to have heard and relied on the alleged misrepresentations faltered for reasons
that had nothing to do with Apple’s alleged wrongdoing. Plaintiff Omnitech, for
example, was located in a poor location in a fairly remote part of Hyannis, Massachusetts
with virtually no pedestrian traffic. A former Omnitech employee testified that the
company’s retail showroom was “old, cluttered, poorly maintained, and unattractive.”
Omnitech suffered from poor management and often did not have high-demand products
in stock because of its credit problems. Its service center was understaffed. Former
owner O’Neil admitted that a competing Specialist “was an increasing drain on our
business.” It was “a major blow” to Omnitech when that Specialist opened its second
store in the nearby town of Harwich, Massachusetts. When Omnitech went out of
business in April 2007, the same competitor opened another store in Hyannis. The
competitor’s Hyannis store has succeeded.
25
There was evidence that plaintiff Weisblatt’s Computer Outlet also faltered for
reasons unrelated to Apple’s alleged wrongdoing. Weisblatt testified that Computer
Outlet stopped being profitable in 1996. Weisblatt had an expensive long-term lease on a
building with two large training rooms where customers could learn how to use
computers. But training became increasingly less important as the general public became
more knowledgeable about computers. In addition, Computer Outlet lost many large
business customers when their companies were acquired by companies that had existing
purchasing relationships with other computer retailers.
Apple submitted evidence that many Specialists enjoyed remarkable success after
the retail stores opened in 2001. Some attributed much of their success to the “ ‘halo
effect’ ” of the Apple stores. Others attributed their success to their own initiative. One
Specialist “more than doubled” its growth by moving to a higher traffic location and
investing in a top-quality build-out. Another Specialist located just blocks away from an
Apple store diversified his business and differentiated it from the competition through its
customer service policies. Its revenues have grown steadily since it became a Specialist
in 2002. This and similar evidence showed that individual Specialists succeeded or
faltered for reasons unique to their individual businesses. Substantial evidence thus
supported the trial court’s finding that plaintiffs’ fraud claim raised predominately
individual issues of causation and damages.
Plaintiffs maintain that the trial court’s finding was “reversible error.” They assert
that the court improperly “ignored” their expert Regan’s testimony that damages can be
calculated on a classwide basis. The contention lacks merit. There is no evidence that
the trial court “ignored” Regan’s testimony. The hearing transcript reveals that the court
read Regan’s submissions but was not convinced by his theories. We do not find this
surprising. Regan’s declaration was entirely speculative. He declared that it was
“possible” to calculate the economic damage suffered by the Specialists on a classwide
basis. But he conceded in deposition that the only work he had done was “hypothetical”
26
and “not based upon actual data from Apple.” He had not performed any calculations or
tried to validate whether any of the theories that he and plaintiffs’ counsel discussed
“might actually work.” He had not constructed any model. Nor had he done anything to
validate his hypothetical model. Regan acknowledged that he had not examined any
evidence specific to any of the named plaintiffs, did not know anything about any of
them, and could not offer any opinions on whether any of them suffered any economic
damages. Moreover, Regan conceded that even if he could develop an aggregate
damages model, whether any specific Specialist had been injured by Apple’s alleged
wrongful conduct could only be determined by a Specialist-specific analysis. Regan’s
testimony did not constitute substantial evidence that damages could be calculated on a
classwide basis. (See Lockheed Martin Corp. v. Superior Court (2003) 29 Cal. 4th 1096,
1111 [reversing trial court’s predominance finding because expert testimony was “too
qualified, tentative and conclusionary to constitute substantial evidence” that causation
and damages could be proved by common evidence].) As plaintiffs’ counsel admitted,
“the damage theories, exactly how we will present them, you know, we have Regan’s
declaration. We don’t have more than that.”
Even if Regan’s testimony was substantial evidence that damages could be
calculated on a classwide basis, it is not our task to second-guess the trial court’s
conclusions. “Our role on this appeal is narrowly confined to examining whether the trial
court’s ruling is supported by substantial evidence, and if it is, we may not substitute our
own judgment for that of the trial court.” (Dailey v. Sears, Roebuck & Co. (2013) 214
Cal. App. 4th 974, 992 (Dailey).) We must “confine our analysis to whether the record
contains substantial evidence supporting the trial court’s conclusion” that plaintiffs’ fraud
claim raised predominately individual issues of causation and damages. (Ibid.)
27
C. Predominance—Contract-Based Claims
Plaintiffs challenge the trial court’s refusal to certify their claim that Apple’s
alleged scheme to put them out of business by starving them of new products denied
them the benefit of their agreements with the company. They complain that the court’s
findings were unsupported by the evidence. We disagree.
The trial court found that each named plaintiff had “a highly individual claim with
regard to allocation” and that “[t]he same would be expected of each member of the
Specialist Class. In other words, there is no commonality with regard to which products
were wrongfully withheld from members of the Specialist Class.” The court also found
“substantial variations in the confirmation letters that Apple provided to members of the
Specialist Class during the Class Period.” It concluded that each member of the class
“would have to present highly individualized evidence regarding which products were
withheld or delayed, when those products were ordered, when they were received,
whether Apple retail stores and/or Apple Online was treated more favorably as to
allocation of those products, whether the member’s own conduct (such as credit problems
or conditions attached to an order) caused the withholding or delay, whether the
withholding or delay of those products proximately caused damage, and the amount of
damage.” Ample evidence supported these findings.4
There was evidence that Apple allocated constrained product among its worldwide
segments, among the different channels in those regions, and among distributors or
resellers in each channel on an ad hoc basis rather than by a set policy or formula. Many
different factors affected when a Specialist received a particular constrained product and
how much he or she received. For example, those in higher tiers of the Specialist
4
We reject plaintiffs’ assertion that the trial court failed to consider the evidence
that they submitted. The court’s questions at the hearing illustrate its thorough familiarity
with the evidence and the issues. Before the court took the matter under submission, it
sought copies of the slide presentations that both sides used to highlight their arguments.
28
program were entitled to receive more of a constrained product than those in the lower
tiers. Those who participated in the early order/early ship program for new products
could receive shipments ahead of those who did not participate in that program. Whether
a Specialist ordered product directly from Apple or from an independent distributor also
made a difference because the distributors made their own allocation decisions without
any input from Apple. Moreover, not all Specialists ordered every constrained product.
The evidence convincingly showed that the named plaintiffs’ claims were highly
individual. Their claims of wrongfully withheld products varied substantially.
Weingarten claimed that Apple deliberately withheld nine different product models from
him. Horizon contended that Apple wrongfully withheld 29. Omnitech maintained that
137 products were wrongfully withheld. Siechert limited some of his claims to particular
orders. He placed six different orders for the same product model between December
2001 and March 2002 but claimed that only the third was wrongfully withheld. None of
the other named plaintiffs contended that that particular product was wrongfully
withheld.
There was evidence that Apple’s first shipments of constrained product to
Specialists in a particular area were often made before or on the same date as its first
shipments to Apple retail stores in the vicinity. There was evidence that on numerous
occasions, Apple shipped product to the named plaintiffs instead of to nearby Apple retail
stores. All of this evidence showed that plaintiffs’ claims of wrongful allocation would
require a Specialist-by-Specialist and product-by-product inquiry. Thus, substantial
evidence supported the trial court’s finding that plaintiffs’ allocation claims could not be
established on a classwide basis.
Plaintiffs argue that the trial court’s “attempt to extrapolate” its findings about
their claims to those of the absent class members was “baffling.” We disagree. Plaintiffs
purported to represent a class of “similarly situated” Apple resellers. Substantial
evidence supported the trial court’s conclusion that plaintiffs’ allocation claims would
29
require a highly individualized inquiry. It was reasonable for the court to conclude that
the claims of purportedly “similarly situated” class members’ would likewise require a
highly individualized inquiry.
Plaintiffs argue that the trial court’s “attempt to extrapolate” its findings about
their claims to those of the absent class members was also “unnecessary.” We disagree.
The essence of plaintiffs’ argument is that substantial evidence supported their position.
The argument misperceives our role on appeal, which is “narrowly confined to examining
whether the trial court’s ruling is supported by substantial evidence.” (Dailey, supra, 214
Cal.App.4th at p. 992.) We have concluded that it was.
Plaintiffs argue that the trial court’s conclusion that their allocation claims could
not be established on a classwide basis but would instead require a highly individualized
inquiry was “simply wrong, as a matter of law.” We disagree. Plaintiffs’ reliance on
Capitol People First v. State Dept. of Developmental Services (2007) 155 Cal. App. 4th
676 (Capitol People) and similar cases is misplaced. The plaintiffs in Capitol People
challenged a “systemic failure” by state agencies to provide community services to
persons with developmental disabilities. (Capitol People, at pp. 691, 702.) They alleged
that the defendants’ failure to provide the statutorily-mandated level of services deprived
class members of their rights. (Ibid.) The trial court concluded that the plaintiffs could
not satisfy the commonality requirement because the issues dictated inquiry into each
class member’s individualized circumstances. (Id. at p. 688.) The Court of Appeal
reversed, repeatedly emphasizing that the plaintiffs sought “only systemic relief, and not
individual solutions to individual problems.” (Id. at pp. 681, 686, 690, 693, 695, 702-
703.) That “ ‘systemic relief’ ” (specifically, an order compelling the agencies to put in
place procedures, practices, and an infrastructure to ensure their ability to satisfy their
obligations to class members) “ ‘could not be obtained on a case-by-case basis.’ ” (Id. at
p. 694.)
30
This case is nothing like Capitol People. It has nothing to do with entitlement to
government benefits on a systemic basis. Nor can the alleged harm in this case be
remedied by a single injunction. Unlike in Capitol People, plaintiffs here seek “severe
monetary damages” for each and every class member in the form of profits lost by his or
her business. This requires an individualized inquiry, as the trial court properly found.
Capitol People is inapposite.
Plaintiffs challenge the sufficiency of the evidence supporting the trial court’s
finding that the Specialist confirmation letters contained substantial variations. They
assert that “[t]here were no such variations.” They maintain that “all of the contracts
during the Class Period promised priority allocation.” We cannot agree.
There was evidence that the terms of the Specialists confirmation letters varied
over time. Early letters described “ ‘advantageous product allocation’ ” as a benefit of the
Specialist program but qualified that statement with the caveat that it was important to
understand that advantageous product allocation did not mean that Apple would
guarantee delivery. The 2001 confirmation letters described “Priority Product
Allocation” as a benefit of the Specialist program. The 2003 confirmation letter said
“Priority Launch Allocation—Apple reserves the right to allocate more product to Apple
Specialists in each correspondingly higher program tier.” None of the letters defined
“Priority Product Allocation” or “Priority Launch Allocation.” The fact that the word
“priority” happens to appear in otherwise different phrases does not make the meaning of
those phrases “identical,” as plaintiffs assert. Substantial evidence thus supported the
trial court’s finding that the Specialist contracts were not identical.
D. Predominance—“Secret Rebates” Claim
Plaintiffs challenge the trial court’s finding with respect to their UPA claim that
“individual issues would predominate as to whether each class member suffered a
‘competitive injury.’ ” Plaintiffs contend that this finding rested on “the same faulty
31
assumption” that they claim the court made “with respect to the fraud-based and contract-
based claims—that each class member would have to prove its entitlement to relief
individually.” They assert that section 17082 excuses them from alleging or proving
actual damages. We reject the contention.
Section 17045 provides that “[t]he secret payment or allowance of rebates,
refunds, commissions, or unearned discounts, whether in the form of money or otherwise,
or secretly extending to certain purchasers special services or privileges not extended to
all purchasers purchasing upon like terms and conditions, to the injury of a competitor
and where such payment or allowance tends to destroy competition, is unlawful.”
Competitive injury is a required element of any claim for violation of section 17045.
(Diesel Electric Sales & Service, Inc. v. Marco Marine San Diego, Inc. (1993) 16
Cal. App. 4th 202, 211-212 (Diesel); CACI 3320.) To prove competitive injury, a plaintiff
must establish “ ‘with reasonable probability the existence of some causal connection
between [the] defendant’s wrongful act and some loss of anticipated revenue . . . .’ ”
(Diesel, at p. 219.)
Section 17082 provides that “[i]n any action under this chapter, it is not necessary
to allege or prove actual damages or the threat thereof, or actual injury or the threat
thereof, to the plaintiff. But, in addition to injunctive relief, any plaintiff in any such
action shall be entitled to recover three times the amount of the actual damages, if any,
sustained by the plaintiff, as well as three times the actual damages, if any, sustained by
any person who has assigned to the plaintiff his claim for damages resulting from a
violation of this chapter.” As explained in Uneedus v. California Shoppers, Inc. (1978)
86 Cal. App. 3d 932, “[b]y section 17082’s own terms, a plaintiff can bring an action for
injunctive relief without proving actual damages. However, to be entitled to treble
damages a plaintiff must prove actual damages. . . . In the absence of such proof, treble
damages are not permitted and a plaintiff is limited to an injunctive remedy.” (Uneedus,
at p. 943, second italics added.)
32
Plaintiffs seek more than injunctive relief here. They also seek actual and punitive
damages. They must plead and prove competitive injury. (Diesel, supra, 16 Cal.App.4th
at pp. 211-212.)
The next issue is whether substantial evidence supported the trial court’s finding
that competitive injury could not be established on a classwide basis. It did. Expert
economist Keeley explained that whether a Specialist was adversely impacted by Apple’s
alleged discounting to favored resellers would depend on the extent to which that
Specialist competed with the favored resellers’ stores for sales. There was evidence that
Specialists located close to allegedly favored resellers were not necessarily in direct
competition with them. Omnitech, for example, was located near Best Buy and Staples
but did not compete with them because they catered to the home user, while Omnitech’s
target market was small business. Other resellers declared that nearby Best Buy or
CompUSA stores had no appreciable impact on their sales. In fact, there was evidence
that one allegedly favored reseller referred its service and support business to a nearby
Specialist store. This evidence amply supported the trial court’s conclusion that it would
require an individualized inquiry to determine which Specialists were in direct
competition with one or more allegedly favored resellers. Those that were would have to
prove that the alleged secret rebates (rather than other factors) caused them to lose sales
or profits. (See American Booksellers Assn., Inc. v. Barnes & Noble, Inc. (N.D.Cal.
2001) 135 F. Supp. 2d 1031, 1043.) As Keeley explained in his uncontroverted
declaration, that could only be done on a Specialist-by-Specialist basis. Substantial
evidence thus supported the trial court’s finding that plaintiffs’ section 17045 claim
raised predominately individualized issues.
Plaintiffs summarily assert that section 17045 “only requires injury to a single
competitor to obtain classwide relief.” They cite no case to support the proposition. Nor
do they develop the argument. We decline to consider it. “ ‘An appellate court is not
required to examine undeveloped claims, nor to make arguments for parties.’ [Citation.]”
33
(American Corporate Security, Inc. v. Su (2013) 220 Cal. App. 4th 38, 44, fn. 3.) “When
an issue is unsupported by pertinent or cognizable legal argument it may be deemed
abandoned and discussion by the reviewing court is unnecessary.” (Landry v. Berryessa
Union School Dist. (1995) 39 Cal. App. 4th 691, 699-700.) We deem the point
abandoned.
E. Superiority of Proceeding by Class Action
Plaintiffs challenge the trial court’s finding that a class action would not be
superior to individual lawsuits. We need not address this contention because “ ‘[a]ny
valid pertinent reason stated will be sufficient to uphold the [trial court’s] order [granting
or denying a class certification motion].’ [Citation.]” (Linder v. Thrifty Oil Co. (2000)
23 Cal. 4th 429, 434-436.) We have already determined that the trial court properly
denied plaintiffs’ motion because individual issues predominated over class issues. (E.g.,
Dailey, supra, 214 Cal.App.4th at p. 1002, fn. 13 [“Given our conclusion here that Dailey
failed to make the necessary showing of commonality as to his overtime pay and
rest/meal break claims, it is not necessary for us to address the trial court’s additional
stated reasons for denying class certification, i.e., that a class action is not the superior
method for resolving this dispute, and that Dailey is not a suitable class representative.”].)
III. Disposition
The order denying class certification is affirmed.
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___________________________
Mihara, J.
WE CONCUR:
_____________________________
Elia, Acting P. J.
_____________________________
Grover, J.
35