Class Action Alleging Defective Shower Pans did not Warrant Class Action Certification because Individual Issues Predominate Over Sole Common Issue (Defective Design) and Plaintiffs Willingness to Sacrifice Substantial Damages Possibly Suffered by Putative Class Members Rendered them Inadequate Representatives of the Class California Appellate Court Holds
Plaintiffs filed a putative class action in California state court against Lasco Bathware alleging that the Lasco shower pans installed in the homes owned by members of the putative class were defective; specifically, the class action complaint alleged that the shower pans “suffered from design defects that resulted in water leakage, and the leakage caused damage to adjacent building components.” Evans v. Lasco Bathware, Inc., ___ Cal.App.4th ___ (Cal.App. November 6, 2009) [Slip Opn., at 1.] The class action complaint alleged strict products liability and negligence, _id._, at 2. The class action “sought to recover only the costs of removing and replacing the shower pans and expressly excluded any consequential damages to adjacent shower components caused by the water leakage.” _Id._, at 5. Plaintiffs filed a motion with the trial court to certify the litigation as a class action, _id._, at 2. Defense attorneys opposed class action treatment on the grounds that the putative class was not readily ascertainable because “(1) the absence of a ready method for determining which consumers presently had Lasco shower pans installed in their bathrooms; (2) the absence of a ready method for determining whether the shower had been used the requisite number of times; and (3) the absence of a ready method for determining whether a specific consumer would be excluded from the class.” _Id._, at 7. Defense counsel also argued that “common issues did not predominate over individual issues because the only common issue (whether the design was defective) was outweighed by the non-common issues.” _Id._ Specifically, whether any particular member of the putative class actually suffered water damage would require destructive testing of each individual’s residence. _Id._, at 7-8. In sum, class action certification was not warranted because a class action trial would devolve into “mini-trials” with respect to each individual class member. _Id._, at 9. The trial court agreed with defense counsel that class action treatment was not warranted because individual issues predominate over common issues. _Id._, at 11. The Court of Appeal affirmed.
The California appellate court summarized its holding as follows: “There is substantial evidence from which the court could have concluded the sole common issue (whether the shower pan was defectively or negligently designed) did not predominate over individualized questions of damages, and there is substantial evidence from which the court could have concluded the proposed plaintiffs did not adequately represent the interests of the class.” Evans, at 11. Specifically, the actual costs of replacing defective shower pans “were not amenable to estimation because the costs associated with removing and replacing each individual shower pan could vary widely from one class member to the next.” Id., at 13. Plaintiffs argued that class action treatment should not be denied simply because of differences in the actual damages suffered by putative class members. Id., at 14. The appellate court concluded, however, that “although a trial court has discretion to permit a class action where the damages recoverable by the class must necessarily be based on estimations, the trial court equally has discretion to deny certification when it concludes the fact and extent of each member’s injury requires individualized inquiries that defeat predominance.” Id., at 17-18.
Additionally, the appellate court affirmed the trial court’s conclusion that plaintiffs were inadequate class representatives. See Evans, at 20 et seq. The class action complaint required that class members “forfeit additional recoveries (e.g. to consequential damages to other components of the house)” that they “might otherwise be entitled to recover.” Id., at 20. Plaintiffs responded that class members were free to opt out of the class in order to retain their right to recover such additional sums. Id., at 21. The Court of Appeal held, however, that the trial court did not abuse its discretion in denying class action certification “based on plaintiffs’ failure to raise those claims reasonable expected to be raised by members of the class.” Id., at 22. Moreover, it was not error for the trial court to refuse to certify the litigation as a “liability only” class action. Id., at 24-26. Accordingly, the California appellate court affirmed the trial court order denying plaintiffs’ motion for class action certification. Id., at 26.
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