Boggs v. Franchise Tax Bd. CA2/5 ( 2014 )

Filed 8/19/14 Boggs v. Franchise Tax Bd. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FIVE
RICK BOGGS, B245446
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC457180)
v.
FRANCHISE TAX BOARD,
Defendant and Respondent.
APPEAL from an order of the Superior Court of the County of Los Angeles,
Ralph W. Dau, Judge. Affirmed.
Arias Ozzello & Gignac, Mike Arias, Mikael H. Stahle; Eugene Feldman for
Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Kristin G. Hogue, Senior Assistant Attorney
General, Donna M. Dean, Deputy Attorney General for Defendant and Respondent.
INTRODUCTION
Plaintiff and appellant Rick Boggs (plaintiff) appeals from the trial court’s order
denying his motion for class certification. According to plaintiff, the order must be
reversed because, in his motion, he satisfied all of the requirements for class certification
and, in denying his motion, the trial court used improper criteria or incorrect legal
analyses.
We hold that because substantial evidence supports the trial court’s conclusion
that plaintiff had failed, inter alia, to satisfy the numerosity element of the class
certification requirements and because the trial court used proper criteria and a correct
legal analysis in reaching that conclusion, there is no basis for reversal. We therefore
affirm the order denying the motion for class certification.
FACTUAL BACKGROUND
Plaintiff provided the following facts in his declaration in support of his motion
for class certification. Plaintiff has been totally blind since age five. He is unable to read
printed words unless they are transcribed into Braille or formatted to be readable through
screen reader software.
In or about 2007, plaintiff received a telephone call from an employee of
defendant and respondent Franchise Tax Board (the Board) named Rocio. Rocio
informed plaintiff that he owed the State of California approximately $4,000 in back
income and payroll taxes, and an additional $3,000 to $4,000 in penalties and interest.
Rocio asked plaintiff to make arrangements to pay the amounts due. Because plaintiff
had retained tax professionals to prepare and file his tax returns every year since the mid-
1990’s, he informed Rocio that he did not owe back taxes, or penalties and interest, and
that prior to her call, he had no knowledge of the claimed debt. Plaintiff also informed
Rocio that he was visually impaired and, therefore, any communications from the Board
needed to be in an alternative format that he could read. Plaintiff explained that such
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alternative formats would include Braille, as well as e-mail. Rocio agreed to, and did,
send plaintiff an e-mail itemizing taxes, interest, and penalties that the Board claimed he
owed. Rocio also assured plaintiff that she would make a note in the Board’s computer
system to ensure that future communications from the Board would be made by e-mail.
A few weeks later, Rocio called plaintiff and again asked him to make
arrangements to pay the full amount the Board claimed he owed. Plaintiff responded that
he would pay a portion of the back taxes, if a payment plan could be arranged. But
plaintiff requested that interest and penalties be waived because he was visually impaired
and had not received any notice of the tax debt in a format he could read. Rocio replied
that she had no authority to grant such a waiver, but at plaintiff’s request, she agreed to
refer the matter to a supervisor.
Several months later, Rocio called plaintiff to again request full payment of the
claimed tax debt, advising that she had been unable to obtain a waiver of interest and
penalties due to the Board’s policy against granting such waivers. Plaintiff told Rocio
that the Board’s position was unfair and that he intended to retain counsel.
From and after plaintiff’s last telephone call with Rocio, he did not receive any
communications from the Board that were accessible to him as a visually impaired
taxpayer. Plaintiff had, however, received from the Board approximately 15 pieces of
print mail since that last conversation, but none in Braille, e-mail, or any other accessible
format.
In or about 2009, plaintiff called the Board once on its 800 number to repeat his
request for communications in a format accessible to him. During that call, plaintiff
advised that he had previously requested that all communications from the Board be in an
accessible format, that he had not received such communications, and that he continued
instead to receive print communications that he could not read.
In or about 2009, plaintiff also attempted to access the Board’s public website to
determine if he could request communications in alternative formats and whether the
Board had a policy to accommodate taxpayers with disabilities. Plaintiff was unable to
answer either inquiry through the Board’s website.
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In his reply papers in the trial court, plaintiff submitted the following testimony
from his deposition. Plaintiff learned about the tax issue with the Board in 2007 because
his “paycheck was short.” He expressed “outrage” and “frustration” because an audit had
been conducted without notifying him and his wages had been garnished without any
advance notification.
When Rocio called plaintiff in 2007, she informed him that she had no authority to
waive “penalties and fees,” but that she understood his position. Plaintiff complained
that he had no opportunity to avoid the penalties and fees because he was not informed
that he owed taxes in any accessible format. “All [plaintiff] was asking was for an equal
opportunity to address [the tax issue] before penalties and fees would be incurred, and
could [the parties] just start from [the point] . . . when [plaintiff] became aware of the
problem.” Plaintiff asked Rocio to seek authority from her supervisors to waive the
penalties and fees, and she agreed to do so.
Plaintiff’s position was that the failure of the Board to provide him documents in
an accessible format caused him to incur an additional tax liability. Plaintiff explained,
“If [plaintiff] received an accessible communication from the [Board], [he] would have
known about any problems regarding tax returns or tax liability, and [he] would have had
an opportunity to address those problems before [he] incurred any penalties or interest or
other fees. Since [plaintiff] had no knowledge of any problems, [he] only became aware
that there were problems after significant penalties and fees had been assessed. And [the
Board’s] policy [did not] allow for any reasonable accommodation to mitigate that
unintended default or negligence, delinquency [he] would call it, rather. [The lack of]
any policy, procedure or practices that enable [plaintiff] or any blind person to interact
with the [Board] in a comparable manner to the way other sighted people would interact,
. . . [made] it impossible for [plaintiff] to avoid penalties, interest and fees that the [Board
would] assess.”
Plaintiff further testified as follows: “With respect to [his] payroll tax [liability],
for example, [plaintiff] hired people with disabilities, blind people and people with other
physical disabilities. [Plaintiff had] heard from other companies and professionals that
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there [were] . . . tax advantages for hiring people with disabilities. [Plaintiff] never was
able to take advantage of any of those opportunities, because [he] could never find any
accessible information from [the Board] on how to do that. [He] did inquire. [He] didn’t
hire the people specifically for that reason, but if—. . . [the Board’s] policies and
practices enable [him] to have equal access to the information that sighted people have,
it’s possible [his] taxes—[his] tax liability would be less, because [he] would have the
information that [he] needed to know how to report or claim . . . [or] take certain
deductions or whatever regarding that particular—that particular benefit. [¶] And
[plaintiff] use[d] that as one example to say how many other ways [he] could . . . have
saved money on tax liability that [he did not] know about because of the lack of policies,
procedures and practices by [the Board]. So [plaintiff] lack[ed] information, in other
words.”
In addition to the foregoing testimony, plaintiff submitted, inter alia, evidence that,
during the class period, approximately 30,000 state taxpayers annually filed returns
claiming a “blind exemption credit.” Plaintiff also provided the declaration testimony of
a computer expert concerning the accessibility of the Board’s website. In that expert’s
report he concluded that “[o]verall, the accessibility of the [Board’s] website [was] quite
good. Pages [had] good semantic structure, well-labeled images, decent color contrast,
excellent page titles, excellent internal and in-page navigation, and [did not] rely on
sensory characteristics for site navigation. The site search and Accessibility pages [were]
also highly accessible and easy to find. In addition, most forms [had] good accessibility,
and for the most part keyboard accessibility [was] good.” According to the expert,
however, there were “primary barriers [that were] of critical importance . . . [in] two
categories: webpage content and PDF files.”
In support of its opposition to the motion for class certification, the Board
submitted, inter alia, the following facts upon which the trial court expressly relied in
making its numerosity determination. The Board’s “Accessibility Policy” was posted on
its website. That policy advised taxpayers to contact the Board’s Americans with
Disabilities Act (ADA) coordinator in the Equal Employment Opportunities (EEO) office
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to obtain documents in alternative format or to file a grievance. That information had
been on the Board’s website since June 2005. The alternative formats that were available
from the Board included Braille, large print, and audio CDs. From 2008 to January 2012,
the Board mailed its Form 540 in large print and audio formats to taxpayers in response
to requests made to a Board call center. From 2009 to January 2012, the Board fulfilled
5,043 orders for Form 540 in “ada” and audio formats in response to requests made
through the Board’s automated taxpayer assistance interactive voice response system.
And, there were no complaints during the class period by visually impaired taxpayers
regarding an inability to obtain documents in an alternate format or an inability to access
the Board’s website.
According to the Board’s records, plaintiff contacted the Board on September 24,
2007, after his wages had been garnished based on a balance due for the 2000 tax year.
Plaintiff requested that the amount being withheld from his paycheck be reduced due to
hardship, and the Board granted his request. Plaintiff told the Board employee that he
was upset, completely blind, and had requested that notices be sent so he could read
them. But the record of this phone call does not contain any request by plaintiff for
specific documents in alternative formats. The Board’s record of that telephone call was
the only record in plaintiff’s taxpayer file indicating that he was blind or discussing the
issue of documents in alternative formats.
In a July 2010 recorded telephonic interview conducted by the Board’s EEO
officer, plaintiff stated that, at some time in the past, he initially requested notifications
from the Board in an alternative format, but the Board did not provide such notices.
Plaintiff made two additional requests for communications in alternative formats, by e-
mail and telephone, between October 2009 and February 2010, but the Board employee
with whom he spoke by telephone informed him that the Board had no program or means
to provide alternative format notification, although the Board was developing some such
a program. Plaintiff informed the EEO officer that he had more specific information
about his initial contact with the Board in notes and e-mails on his laptop computer and
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he agreed to provide that information, but he later discovered that he had disposed of the
laptop computer containing the information.
PROCEDURAL BACKGROUND
In the operative first amended complaint, plaintiff asserted causes of action for
violation of the California Public Accommodations Law—Civil Code section 54, et
seq.—violation of Government Code section 11135, and injunctive relief. According to
plaintiff, he and the members of the classes he proposed to represent had been unlawfully
discriminated against as a result of the Board’s failure to provide communications to
visually impaired taxpayers in accessible formats such as Braille, large print, and e-mail.
Plaintiff defined the two subclasses that he proposed to represent as follows: “(a)
PLAINTIFFS NOTICE CLASS: All visually impaired individuals considered to have
a physical disability, as that term is defined in Cal. Gov. Code § 12926, who, during the
period March 21, 2008 to the present1 [the class period], have not been provided with
notices regarding tax returns and like communications in an alternative format, such as
Braille, large print and/or electronic mail by [the Board]. [¶] (b) PLAINTIFF
WEBSITE CLASS: All visually impaired individuals considered to have a physical
disability, as that term is defined in Cal. Gov. Code § 12926, who, during [the class
period], have not been provided access to [the Board’s] public website in a format
accessible by a screen-reader or similar computer program.”
Following discovery, plaintiff filed his motion for class certification. At the
hearing on the motion, the trial court heard oral argument, took the matter under
submission, and thereafter issued a minute order denying the motion on the grounds that
plaintiff, as to both of the alleged subclasses, had failed to satisfy the numerosity,
1
Because the original complaint was filed on March 14, 2011, the defined class
period spanned approximately three years.
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typicality, adequacy, commonality, and superiority elements necessary for class
certification. Plaintiff filed a timely notice of appeal from that order.
DISCUSSION
A. Standard of Review
“Code of Civil Procedure section 382 authorizes class actions ‘when the question
is one of a common or general interest, of many persons, or when the parties are
numerous, and it is impracticable to bring them all before the court . . . .’ (Code Civ.
Proc., § 382.) A trial court is generally afforded great latitude in granting or denying
class certification, and we normally review a ruling on certification for an abuse of
discretion. (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326-327
[17 Cal.Rptr.3d 906, 96 P.3d 194] (Sav-On Drug Stores).) We do not apply this
deferential standard of review if the trial court has evaluated class certification using
improper criteria or an incorrect legal analysis: ‘[A] trial court ruling supported by
substantial evidence generally will not be disturbed “unless (1) improper criteria were
used [citation]; or (2) erroneous legal assumptions were made . . . .”’ (Linder v. Thrifty
Oil Co. (2000) 23 Cal.4th 429, 435-436 [97 Cal.Rptr.2d 179, 2 P.3d 27] (Linder); accord,
Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th 554, 575-576 [67 Cal.Rptr.3d
468, 169 P.3d 889]; Sav-On Drug Stores, supra, 34 Cal.4th at pp. 326-327; see Bartold v.
Glendale Federal Bank (2000) 81 Cal.App.4th 816, 828-829 [97 Cal.Rptr.2d 226] [‘[i]f
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 . . . ‘even though there may be
substantial evidence to support the court’s order’”’].) The reviewing court ‘must
examine the trial court’s reasons for denying class certification.’ (Linder, supra, 23
Cal.4th at p. 436.) When reviewing an order denying class certification, appellate courts
‘consider only the reasons cited by the trial court for the denial, and ignore other reasons
that might support denial.’ (Bufil v. Dollar Financial Group, Inc. (2008) 162
8
Cal.App.4th 1193, 1205 [76 Cal.Rptr.3d 804].)” (Jaimez v. Daiohs USA, Inc. (2010) 181
Cal.App.4th 1286, 1297-1298.)
B. Legal and Equitable Principles
“Drawing on the language of Code of Civil Procedure section 382 and federal
precedent, we have articulated clear requirements for the certification of a class. 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.
(Code Civ. Proc., § 382; Fireside Bank [v. Superior Court (2007) 40 Cal.4th 1069], 1078,
1089 (Fireside Bank); Linder[, supra,] 23 Cal.4th [at p.] 435 [97 Cal.Rptr.2d 179, 2 P.3d
27]; City of San Jose [v. Superior Court (1974) 12 Cal.3d 442], 459.) ‘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.”’ (Fireside
Bank, at p. 1089, quoting Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470
[174 Cal.Rptr. 515, 629 P.2d 23].)” (Brinker Restaurant Corp. v. Superior Court (2012)
53 Cal.4th 1004, 1021.)
“The Supreme Court has emphasized that the class action procedure is rooted in
equitable principles. ‘“The class action is a product of the court of equity—codified in
section 382 of the Code of Civil Procedure. It rests on considerations of necessity and
convenience, adopted to prevent a failure of justice. [Citation.]”’ (Fireside Bank[,
supra,] 40 Cal.4th [at p.] 1078 [56 Cal.Rptr.3d 861, 155 P.3d 268].) [¶] . . . [¶] ‘The
certification question is “essentially a procedural one that does not ask whether an action
is legally or factually meritorious.” [Citation.] A trial court ruling on a certification
motion determines “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
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litigants.” [Citations.]’ (Sav-On Drug Stores, supra, 34 Cal.4th at p. 326.)” (Lopez v.
Brown (2013) 217 Cal.App.4th 1114, 1126.)
C. Analysis
1. Waiver or Abandonment
Relying on Arechiga v. Dolores Press, Inc. (2011) 192 Cal.App.4th 567(Arechiga), the Board contends that plaintiff has waived or abandoned on appeal any
challenge based on the sufficiency of the evidence. According to the Board, plaintiff
failed in his opening brief to cite or discuss any of the evidence submitted by the Board
and relied upon by the trial court in making its ruling. In Arechiga, the appellant
contended that the evidence submitted at trial was insufficient to prove he had entered
into an explicit mutual wage agreement. (Id. at p. 571.) The court in Arechiga held that
the appellant had abandoned that contention. “[The appellant] contends insufficient
evidence existed to prove he had entered into an explicit mutual wage agreement with
Employer. In pressing his contention, [the appellant] ignores a fundamental rule of
appellate practice obligating him to completely and fairly summarize the evidence
supporting the court’s findings and judgment. (Brockey v. Moore (2003) 107
Cal.App.4th 86, 96-97 [131 Cal.Rptr.2d 746]; see also Jhaveri v. Teitelbaum (2009) 176
Cal.App.4th 740, 748-749 [98 Cal.Rptr.3d 268].) . . . [The appellant’s] failure to discuss
evidence supporting the court’s findings and judgment excuses us from any need to
address his contention of insufficient evidence, and we therefore deem the contention
abandoned. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [92 Cal.Rptr.
162, 479 P.2d 362]; Ajaxo Inc. v. E*Trade Group, Inc. (2005) 135 Cal.App.4th 21, 50 [37
Cal.Rptr.3d 221]; Brockey, at p. 97.)” (Id. at p. 571-572.)
Although plaintiff’s opening brief does not cite or discuss the Board’s evidence,
this case differs from Arechiga, supra, 192 Cal.App.4th 567 because here plaintiff does
not contend that the evidence in support of the trial court’s findings was insufficient. To
the contrary, plaintiff contends that the evidence in support of each of the class
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certification elements was sufficient, such that the trial court erred by finding otherwise
and by using improper criteria or incorrect legal analyses. In any event, we need not
determine the issue because, as explained below, even if we assume plaintiff has not
abandoned on appeal any sufficiency claims, the trial court nevertheless correctly
concluded that plaintiff had failed, inter alia, to establish the required numerosity
element.
2. Numerosity
In ruling on plaintiff’s motion for class certification, the trial court found, inter
alia, that plaintiff had failed to satisfy the numerosity element. According to the trial
court, “Plaintiff contends the classes are sufficiently numerous because the number of
visually impaired tax filers in California is approximately 30,000. (Arias Decl. Exhs. A
& B, FTB Response to Special Interrog. (Set One) No. 1.) [The Board] contends the
number of filers claiming the ‘blind exemption credit’ is irrelevant to the numerosity
issue (Opp. Mem. pp 1-2) because there is no evidence that any of those tax filers has
been denied access to documents in alternative format, denied access to the [Board]
website or incurred any taxes, penalties or interest due to the alleged discrimination of the
[Board]. [¶] The court agrees with [the Board’s] argument. That approximately 30,000
filers claim the ‘blind exemption credit’ in their tax returns is not evidence that any of
these filers sought, but were unable to obtain, any of the services indicated. Plaintiff also
argues that the number of alternative format documents provided by [the Board] to tax
filers upon request demonstrates numerosity. The number of [the Board’s] responses to
such requests does not show that any of the requestors were unable to obtain exactly what
they asked for. [¶] . . . [¶] Insofar as the Website Class, plaintiff provides the expert
declaration and findings of Jon Mires of the Center for Accessible Technology. Mr.
Mires is a Web Accessibility Specialist, who states through the report attached to his
declaration ‘[o]verall, the accessibility of the [Board] site is quite good,’ but that certain
parts of the site are not fully accessible. (Mires Decl., Exh. B, pp. 1-2, Summary of
Findings.) Nevertheless, plaintiff provides no evidence that any visually impaired
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taxpayer (a) visited the [Board’s] website during the class period and (b) was not
provided full accessibility. [Plaintiff] does not say (see Decl.) he had been unable to
obtain full accessibility to [the Board’s] website. (Fn. omitted.) [¶] The upshot of the
record evidence is that plaintiff has failed to demonstrate numerosity of either the Notice
Class or the Website Class.”
Plaintiff contends that his factual submissions in support of his motion for class
certification satisfied the numerosity element. In support of this contention, he points to
the evidence that showed that approximately 30,000 visually impaired persons applied
annually for a blind exemption credit during the class period and argues that the “only
possible inference to be drawn from this evidence is that the Class easily exceeds even
the general threshold of 30 [to] 40 [class members] . . . and greatly surpasses any possible
‘minimum’ number of class members required for certification.”
“A party seeking class certification bears the burden of satisfying the requirements
of Code of Civil Procedure section 382, including numerosity, and the trial court is
entitled to consider ‘the totality of the evidence in making [the] determination’ of
whether a ‘plaintiff has presented substantial evidence of the class action requisites . . . .’
(Quacchia v. DaimlerChrysler Corp. (2004) 122 Cal.App.4th 1442, 1448 [19 Cal.Rptr.3d
508].)” (Soderstedt v. CBIZ Southern California, LLC (2011) 197 Cal.App.4th 133, 154.)
Contrary to plaintiff’s assertion, his evidence showing that, during the class
period, approximately 30,000 taxpayers annually filed for a blind exemption credit does
not, by itself, support an inference that the members of the proposed subclasses were
sufficiently numerous. The definitions of each subclass require more than a showing that
each class member was visually impaired. As the definitions, plaintiff’s allegations, and
plaintiff’s motion make clear, there must also be evidence that numerous visually
impaired taxpayers were subjected to a pattern or practice of discrimination by the Board
that denied them access to communications in alternative formats or access to necessary
information through the Board’s website. Plaintiff’s evidentiary showing on this latter
element of the class definition, however, was insufficient. Although plaintiff claimed
that his denial to access of alternative format documents was the result of a pattern or
12
practice, he failed to show that any other visually impaired taxpayer had been the victim
of that pattern or practice, much less that numerous visually impaired taxpayers had been
victims of it.
Moreover, the Board’s opposition contained substantial evidence that showed the
Board had an accessibility policy and procedure in place since 2005 for providing
visually impaired taxpayers with documents in alternative formats upon request—
evidence that rebutted the allegation of a pattern and practice to the contrary. In addition,
the Board submitted evidence that during the class period, it responded to over 5000
requests for Form 540 documents in alternative formats—again, evidence that rebuts any
suggestion that numerous class members had been denied access to such documents.
Similarly, as to both the notice subclass and the website subclass, the Board
provided evidence that there were no complaints during the class period regarding the
inability to obtain documents in alternative formats or to access the website. Paintiff’s
own expert opined that, overall, access to the website was “quite good.” Therefore,
because plaintiff failed to show that numerous class members had been subjected to the
alleged pattern or practice, and the Board submitted substantial evidence to the contrary,
the trial court correctly denied his class certification motion based on a lack of
numerosity.
Plaintiff contends that, in making its numerosity determination, the trial court used
the wrong “standard,” presumably meaning that the trial court used improper criteria or
legal analyses. According to plaintiff, by requiring him to demonstrate that all class
members had suffered injury, the trial court ran afoul of certain federal decisions holding
that “it is sufficient if class members complain of a pattern or practice that is generally
applicable to the class,” even if not all class members have been injured by the
challenged practice. (Walters v. Reno (9th Cir. 1998) 145 F.3d 1032, 1047 (Walters).)
Plaintiff misconstrues the federal case law upon which he relies, as well as the trial
court’s ruling on numerosity. For example, the quote from Walters, supra, 145 F.3d
1032 upon which he bases his argument was taken from the court’s discussion of the
commonality requirement, not numerosity, and it specifically related to certification
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under Federal Rules of Civil Procedure, rule 23(b)(2),2 which rule governs certification in
cases seeking injunctive or declaratory relief to remedy classwide practices. Moreover,
the court in Walters specifically noted that “common issues must predominate for class
certification under Rule 23(b)(3) . . . .” (Walters, supra, 145 F.3d at p. 1047.)
In any event, the trial court did not, as plaintiff contends, rule that plaintiff was
required to show injury to each class member in order to establish numerosity. Instead,
the trial court found, as a factual matter, that plaintiff had failed to show that any other
class member had complained about the discriminatory practice that plaintiff alleged or
had suffered injury from that practice. Requiring plaintiff to show that at least 30 to 40
taxpayers3 during the class period had been victims of the alleged practice or had been
injured by it is not the equivalent of requiring plaintiff to show injury to each and every
class member at the certification stage. Accordingly, because the trial court used correct
criteria and a proper legal analysis in making its numerosity determination, we must
affirm the denial of the class certification motion.4
2
Rule 23(b)(2) provides , in pertinent part, “Types of Class Actions. A class action
may be maintained if Rule 23(a) is satisfied and if: [¶] (2) the party opposing the class
has acted or refused to act on grounds that apply generally to the class, so that final
injunctive relief or corresponding declaratory relief is appropriate respecting the class as
a whole; . . .”
3
Plaintiff concedes that ordinarily numerosity requires evidence that the proposed
class is comprised of at least 30 to 40 putative members.
4
Because we resolve this appeal by affirming the trial court’s finding of a lack of
numerosity, we do not address plaintiff’s challenges to the trial court’s other findings
concerning certain of the other class action requisites.
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DISPOSITION
The order denying the motion for class certification is affirmed. The Board is
awarded its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MOSK, J.
We concur:
TURNER, P. J.
MINK, J.

Retired Judge of the Superior Court of the County of Los Angeles, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
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