Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. SCV233764
Richman, J.
In this action concerning the sale of PT Cruiser automobiles, plaintiff Harry Allen appeals from two orders by the trial court: (1) a December 16, 2004 statement of decision granting summary adjudication for defendant DaimlerChrysler Motors Company LLC (DCMC) on all claims except a single claim brought under the Consumers Legal Remedies Act (CLRA) (Civ. Code, § 1750 et seq.) and (2) a March 9, 2006 order denying class certification based on Allen’s sole remaining claim. We conclude that the December 16, 2004 statement of decision is not an appealable order. Accordingly, we dismiss this portion of Allen’s appeal. We also conclude that the trial court did not abuse its discretion in denying Allen’s motion for class certification. We thus affirm the March 9, 2006 order.
Unless otherwise noted, all statutory references are to the Civil Code.
BACKGROUND
Allen is a practicing attorney. He characterized this lawsuit as one against DCMC “for failing to honor the price protection agreement that . . . I had with respect to the purchase of a PT Cruiser.” DCMC launched the PT Cruiser as a 2001 model in April 2000. The car that was very popular. In April 2000, Allen placed an order for a 2001 PT Cruiser at the Zumwalt-Magrini dealership in Santa Rosa, California. The dealership told Allen that it would take DCMC about five months to manufacture the vehicle, but that placing his order guaranteed or “protected” the price he would pay for the vehicle when it was delivered—about $21,000. Allen paid the Zumwalt-Magrini dealership a $1,000 deposit when he placed his order, but he never paid any money to DCMC.
In 2000, Allen had seen advertisements stating that DCMC’s suggested retail price for the PT Cruiser, depending on the model, would be “somewhere between [$]16,000 and $21,000.” Allen did not know whether the “price protection program” was specific to the Zumwalt-Magrini dealership; he never saw any advertisements about such a program. Allen never had any communications with DCMC regarding the price of the particular PT Cruiser he had ordered. No DCMC advertisement stated that there was an unlimited number of PT Cruiser vehicles available, nor did any DCMC advertisement guarantee that any particular order for a 2001 PT Cruiser placed with or by a dealer would be filled by DCMC.
In January 2001, the Zumwalt-Magrini dealership told Allen his order would not be honored, but also told him he could order a 2002 PT Cruiser at a higher price. Allen went to two other dealerships where there were some 2001 PT Cruisers for sale, but they were being sold for about $10,000 more than Allen had agreed to pay the Zumwalt-Magrini dealership. Allen ultimately never purchased a PT Cruiser and did not make any effort to obtain a similar vehicle elsewhere. However, according to Allen, at least 415 California consumers who placed price-protected 2001 model year orders reordered the 2002 models and did not receive price protection on their reorders.
On October 31, 2003, Allen filed a class action complaint alleging that DCMC had violated provisions of both the CLRA and the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) by promulgating misleading and false advertising about 2001 PT Cruisers and by misrepresenting the availability and prices of these vehicles. The complaint defines the proposed class as “[a]ll persons for whom an authorized DaimlerChrysler dealer located in the State of California placed a retail ‘sold order’ with DaimlerChrysler for a 2001 Model Year PT Cruiser automobile during the period such vehicles were being advertised and sold by DaimlerChrysler in California, but which person did not receive an ordered vehicle because DaimlerChrysler canceled the customer order without manufacturing the vehicles specified therein.”
Allen alleges in his complaint that in order to sell its 2001 PT Cruisers, DCMC represented to consumers that they could place an order for one of the cars at a guaranteed price through a program called “price protection.” Allen alleges that DCMC “failed and refused to produce and deliver PT Cruiser automobiles as advertised due to its well-predicted inadequate supply of such vehicles, unilaterally canceling all such orders in the spring of 2001 and thereby depriving such consumers of the benefit of the bargain of their orders, including the receipt of vehicles ordered at ‘price protected’ levels.” Allen further alleges that DCMC was aware demand for the PT Cruiser would exceed the available supply, but continued to advertise and encourage California consumers to order and purchase the 2001 PT Cruisers. One of the incentives DCMC offered to consumers was a “ ‘price protection’ program by which authorized Chrysler dealers were authorized and encouraged to guarantee customers to place a retail sold order [with a DaimlerChrysler dealer] on the premise that the cost of such vehicle would not be increased prior to its delivery.” After canceling the orders for 2001 PT Cruisers, DCMC allegedly “urged its authorized dealers to sell such consumers a 2002 model year PT Cruiser at a higher price.”
In August 2004, DCMC filed a motion for summary judgment, summary adjudication, and/or for judgment under section 1781, subdivision (c)(3). On December 16, 2004, the trial court filed what it called a “Statement of Decision” granting DCMC summary adjudication as to all of Allen’s causes of action save the one brought pursuant to section 1770, subdivision (a)(14), described post.
Although the CLRA prohibits motions brought pursuant to Code of Civil Procedure section 437c (§ 1781, subd. (c)), it does permit any party to bring a noticed motion to determine whether a consumer class action brought under the CLRA “is without merit or there is no defense to the action.” (§ 1781, subd. (c)(3); see Olsen v. Breeze, Inc. (1996) 48 Cal.App.4th 608, 624 [“Section 1781, subdivision (c)(3) provides a means of resolving CLRA actions prior to trial”]; Belton v. Comcast Cable Holdings, LLC (2007) 151 Cal.App.4th 1224, 1245 [the “CLRA does not permit summary judgment motions, and instead provides this alternate, but similar procedure to establish that the action is without merit”].) DCMC brought its motion under section 1781, subdivision (c)(3), as well as under Code of Civil Procedure section 437c. Consequently, as Allen acknowledged below, the trial court must have construed DCMC’s motion with respect to Allen’s CLRA claims as one for “no merit” brought pursuant to section 1781, subdivision (c)(3), even though the court stated in its 2004 statement of decision that it was granting “summary judgment or summary adjudication.” (See Consumer Advocates v. Echostar Satellite Corp. (2003) 113 Cal.App.4th 1351, 1354, 1359 [trial court’s labeling of its order as granting “summary judgment and/or summary adjudication” with respect to plaintiffs’ CLRA cause of action was proper as a “no merit” ruling under § 1781, subd. (c)(3) where defendants moved not only for summary judgment/adjudication, but also under § 1781, subd. (c)(3)].) In any event, as we discuss post, we do not reach the propriety of the trial court’s 2004 statement of decision.
In its statement of decision, the court determined that Allen only had a contract with the Zumwalt-Magrini dealership, not with DCMC, and that the dealership was not an agent of DCMC. The court also determined that DCMC’s “price protection program” was offered only to dealers, not to individual consumers like Allen. “Vehicle purchasers, like Mr. Allen are ancillary benficiar[ies] of this [program] since they know that they will get the vehicle at a given price.” The court also stated that DCMC “had used every effort to maximize” their production of the PT Cruiser in response to the high demand for the car, that DCMC’s “assembly plant was running at full capacity,” and that DCMC “intended to sell every car it could make. Furthermore, there were cars for sale at most, if not all Chrysler dealerships.” The court determined that there was “no evidence DCMC deliberately decided not to manufacture Mr. Allen’s car in order to supply . . . cars to its dealer or to other customers.” Finally, the court determined that “[n]one of DCMC’s advertisements contained any material misrepresentations. They did not promise . . . that cars could be purchased at a certain price, or that there was an unlimited supply. The advertisements . . . were of a general nature designed to create interest and demand for the car.”
The trial court also determined that “DCMC continued to advertise the PT Cruiser throughout 2000 and 2001 even though at some point DCMC knew that it could not satisfy the demand for 2001 PT Cruisers or fill orders such as Mr. Allen’s.” In June 2000, DCMC sent a letter to “Allen and other persons who had contracted with dealers for cars that were not yet built” which read as follows: “I would like to thank you for your continued patience while waiting for delivery of your new 2001 Chrysler PT Cruiser. [¶] For your records, your order was placed at: [name, address, and telephone number of dealership] and your order number is: [number]. Your dealer is your best source for updates concerning production and delivery of your new vehicle. Please have your order number handy for all dealer inquiries. [¶] Again, thank you for your patience. The 2001 Chrysler PT Cruiser embodies all of the qualities that make a vehicle more than just something to drive. It’s well worth the wait! [¶] Sincerely, [¶] [signature of Tom Marinelli].”
The trial court concluded that “[i]f DCMC knew at the time that the [June 2000] letter was sent that it would not be able to fill Allen’s order, . . . the letter could be construed as conferring the right to have delivered the car that was bought at Zumwalt at the price contracted for.” The court thus ruled that there was a “triable issue of material fact as to whether or not DCMC violated []CLRA § 17[7]0(a)(14) in that DCMC knew or should have known when the June . . . letter was sent that Mr. Allen would not in fact receive his car.” Section 1770, subdivision (a)(14) makes it illegal to “[r]epresent[] that a transaction confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law” in “a transaction intended to result or which results in the sale or lease of goods or services to any consumer.”
On January 20, 2005, Allen sought review of the trial court’s December 16, 2004 statement of decision granting summary adjudication by petition for writ relief. We denied Allen’s petition on March 15, 2005.
On September 7, 2005, Allen filed a motion for certification of a class consisting of “[a]ll persons for whom an authorized DaimlerChrysler dealer located in the State of California placed a retail ‘sold order’ with DaimlerChrysler for a 2001 Model Year PT Cruiser automobile, which person was mailed the June . . . 2000 Marinelli letter, but which person did not receive an ordered vehicle because DaimlerChrysler canceled the customer order without manufacturing the vehicles specified therein.”
On March 9, 2006, the trial court denied Allen’s motion for class certification. The court based its order denying certification primarily on its findings that individual issues regarding damages and causation predominated over issues common to the proposed class.
DISCUSSION
I. 2004 Statement of Decision Granting Summary Adjudication.
An order granting summary adjudication “is generally reviewable on appeal from the final judgment in the action.” (Jennings v. Marralle (1994) 8 Cal.4th 121, 128, italics added.) As Allen acknowledges, when there is not yet a final judgment, the general rule is that such an order is not appealable. (See Jacobs-Zorne v. Superior Court (1996) 46 Cal.App.4th 1064, 1070 (Jacobs-Zorne).) Nonetheless, Allen argues the trial court’s December 16, 2004 statement of decision granting summary adjudication is now appealable despite the fact that there is not yet a final judgment in this case. He argues an exception to the general rule based on the trial court’s reliance on that 2004 statement of decision in its 2006 order denying class certification. The only authority Allen cites in support of his appealability argument is Code of Civil Procedure section 906. It is unavailing.
Code of Civil Procedure section 906 provides that upon an appeal (1) from a judgment, or (2) from one of the appealable orders or interlocutory judgments specified in Code of Civil Procedure section 904.1 , “the reviewing court may review the verdict or decision and any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the judgment or order appealed from or which substantially affects the rights of a party . . . .” (Code Civ. Proc., § 906.) Allen asserts that Code of Civil Procedure section 906 makes the 2004 statement of decision granting summary adjudication appealable because it involved “the merits or necessarily” affected the 2006 order denying class certification and that 2006 order is appealable. (Ibid.)
In addition to judgments, Code of Civil Procedure section 904.1 specifies that the following orders and interlocutory judgments are appealable: “an order made after a judgment”; “an order granting a motion to quash service of summons or granting a motion to stay the action on the ground of inconvenient forum, or from a written order of dismissal . . .”; “an order granting a new trial or denying a motion for judgment notwithstanding the verdict”; “an order discharging or refusing to discharge an attachment or granting a right to attach order”; “an order granting or dissolving an injunction or refusing to grant or dissolve an injunction”; “an order appointing a receiver”; “an order . . . in an action to redeem real or personal property from a mortgage thereof, or a lien thereon, determining the right to redeem and directing an accounting”; “an interlocutory judgment in an action for partition determining the rights and interests of the respective parties and directing partition to be made”; “an order made appealable by the provisions of the Probate Code or the Family Code”; “an interlocutory judgment [or order] directing payment of monetary sanctions”; or “an order granting or denying a special motion to strike.” (Code Civ. Proc., § 904.1, subd. (a).)
The problem with Allen’s argument is that the 2006 order denying class certification is neither (1) a judgment nor (2) one of the appealable orders or interlocutory judgments specified in Code of Civil Procedure section 904.1 . While the 2006 order is made reviewable by the judicially-created “death knell” doctrine (Stephen v. Enterprise Rent-A-Car (1991) 235 Cal.App.3d 806, 811), it is not made reviewable by Code of Civil Procedure section 904.1. Consequently, even assuming the 2004 statement of decision granting summary adjudication “involves the merits or necessarily affects” the 2006 order denying class certification (Code Civ. Proc., § 906), Code of Civil Procedure section 906 by its own terms does not apply to make the 2004 statement of decision reviewable before entry of final judgment.
The 2004 statement of decision did not dispose of all of Allen’s causes of action against DCMC—Allen’s individual CLRA claim against DCMC for violation of section 1770, subdivision (a)(14) remains. The 2004 statement of decision is thus an interlocutory decree because “further judicial action is required for a final determination of the rights of the parties” and is not appealable because it does not “ ‘come[] within the statutory classes of appealable interlocutory judgments.’ ” (Jacobs-Zorne, supra, 46 Cal.App.4th at p. 1070.) Instead of an appeal, the proper remedy was a petition for a peremptory writ. (Id. at p. 1071) Allen has already unsuccessfully pursued this remedy.
II. 2006 Order Denying Class Certification.
In reviewing the trial court’s order denying class certification, “ ‘Our task . . . is not to determine in the first instance whether the requested class is appropriate but rather whether the trial court has abused its discretion in denying certification.’ ” (Caro v. Procter & Gamble Co. (1993) 18 Cal.App.4th 644, 655 (Caro.)) “ ‘Because trial courts are ideally situated to evaluate the efficiencies and practicalities of permitting group action, they are afforded great discretion in granting or denying certification.’ [Citation.] A certification order generally will not be disturbed unless (1) it is unsupported by substantial evidence, (2) it rests on improper criteria, or (3) it rests on erroneous legal assumptions. [Citations.]” (Fireside Bank v. Superior Court (2007) 40 Cal.4th 1069, 1089.) “Under this standard, an order based upon improper criteria or incorrect assumptions calls for reversal ‘ “even though there may be substantial evidence to support the court’s order.” ’ [Citations.] Accordingly, we must examine the trial court’s reasons for denying class certification. ‘Any valid pertinent reason stated will be sufficient to uphold the order.’ ” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 436 (Linder).)
“A plaintiff moving for class action treatment bears the burden of establishing that the requisites for such treatment are present.” (Dean Witter Reynolds, Inc. v. Superior Court (1989) 211 Cal.App.3d 758, 764 (Dean Witter Reynolds).) Allen moved to certify a class under the CLRA based on violation of section 1770, subdivision (a)(14). “The propriety of class action treatment for claims under the CLRA is determined according to the criteria contained in that act, specifically at Civil Code section 1781. Trial courts retain discretion to determine whether the statutory criteria have been met, but the act ‘circumscribes the factors which trial courts properly may consider’; and if those factors are found, ‘a trial court is under a duty to certify the class and is vested with no discretion to deny certification based upon other considerations.’ ” (Dean Witter Reynolds, supra, 211 Cal.App.3d at p. 765, footnote omitted.)
Thus, in order for his CLRA claim to proceed as a class action, Allen had to demonstrate “all of the following . . .: [¶] (1) It is impracticable to bring all members of the class before the court. [¶] (2) The questions of law or fact common to the class are substantially similar and predominate over the questions affecting the individual members. [¶] (3) The claims or defenses of the representative plaintiffs are typical of the claims or defenses of the class. [¶] (4) The representative plaintiffs will fairly and adequately protect the interests of the class.” (§ 1781, subd. (b).)
a. Lack of Predominance of Common Issues.
The trial court found that class certification was not appropriate primarily because differences in “the type of damages (or even their very existence)” as well as the need for individual determinations regarding causation meant that common questions of law or fact did not predominate. (§ 1781, subd. (b)(2).) We conclude that the trial court did not abuse its discretion in making these findings, and that they are supported by substantial evidence.
Allen had the burden to “show that common issues not only exist[ed], but also [would] predominate over individual ones. ‘ “[T]his means ‘each member must not be required to individually litigate numerous and substantial questions to determine his [or her] right to recover following the class judgment; and the issues which may be jointly tried, when compared with those requiring separate adjudication, must be sufficiently numerous and substantial to make the class action advantageous to the judicial process and to the litigants.’ ” ’ ” (Wilens v. TD Waterhouse Group, Inc. (2003) 120 Cal.App.4th 746, 754 (Wilens).) To the extent this showing depended upon a review of evidence submitted in connection with the certification motion, we review the trial court’s factual findings for substantial evidence. (Massachusetts Mutual Life Ins. Co. v. Superior Court (2002) 97 Cal.App.4th 1282, 1287 (Massachusetts Mutual Life Ins. Co.).) And where the class certification order turned on inferences to be drawn from the facts, we have “ ‘ “no authority to substitute [our] decision for that of the trial court.” ’ ” (Ibid.)
Plaintiffs in a CLRA action must show “not only that a defendant’s conduct was deceptive,” but also that they have suffered damages as a result of the deceptive practices declared unlawful in section 1770. (Massachusetts Mutual Life Ins. Co., supra, 97 Cal.App.4th at p. 1292; §§ 1780, subd. (a), 1781, subd. (a).) The trial court concluded that damage issues—both calculation of damages and the individual class members’ entitlement to them—were not common to the proposed class. The court based its conclusion on the following factual findings which are supported by the record: 1,702people in California ordered PT Cruisers, received the June 2000 letter, and did not have their orders filled. “Mr. Allen paid no money to DCMC and as to them has no ‘out of pocket loss.’ Likewise he did not purchase a PT Cruiser (or any other car) in the open market and thus did not suffer traditional ‘cover’ losses. . . . [Other] members of the proposed class . . . did purchase a PT Cruiser at a price above their contract with the dealer in the open market. There may also be individuals who had no damages. Some consumers may have purchased a PT Cruiser at or below their contract price from another dealer or from their dealer’s stock.”
Allen does not dispute that there are differences in the “type and existence of damages” among the proposed class members. Instead, he asserts that the “common issue of liability” regarding whether the June 2000 letter was an actionable misrepresentation “allows class action treatment despite the subsequent need for individualized proof of entitlement or damages.” However, “[a]lthough difference in computing damages is not sufficient to deny class certification, differences in the actual existence of damages or in the manner of incurring damages are appropriate considerations.” (Caro, supra, 18 Cal.App.4th at p. 665.)
The trial court properly found that the proposed class included the following members: (1) those, like Allen, with no out-of-pocket losses because they never purchased a PT Cruiser; (2) those with out-of-pocket losses because they paid more on the open market to obtain a PT Cruiser when their order was cancelled; and (3) those who suffered no damages whatsoever because they purchased a PT Cruiser at or below the price set in their cancelled order. Thus, the 1,702 proposed class members would not be able to prove their entitlement to damages by common evidence because their conduct after receiving the June 2000 letter varied widely. (See Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1111 [no substantial evidence of predominance of common issues where plaintiffs could not prove them “by common evidence”].)
The court also found that the damages suffered by those class members like Allen with no out-of-pocket losses consisted of the loss “of the use and enjoyment of owning a much sought after car at the height of its popularity.” Even assuming such damages are recoverable under the CLRA, these are not the type of damages which can support class certification because establishing them “necessarily would involve evidence of the mental and subjective state of each plaintiff.” (Altman v. Manhattan Savings Bank (1978) 83 Cal.App.3d 761, 767.) Consequently, the trial court properly concluded that “the individual issues here go beyond mere calculation; they involve each class member’s entitlement to damages. Each class member would be required to litigate ‘substantial and numerous factually unique questions to determine his or her individual right to recover,’ thus making a class action inappropriate.” (Wilens, supra, 120 Cal.App.4th at p. 756.)
At oral argument Allen relied heavily on Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224 (Wershba), even though he only cited this case for the following one-sentence proposition in his briefs: “it is not necessary the class representative have personally incurred all of the damages suffered by each of the other class members.” In Wershba, the Court of Appeal affirmed a judgment certifying a nationwide class and approving a class settlement. (Id. at pp. 230.) The class consisted of purchasers of certain Apple products whom Apple had promised free technical support, but who did not receive that technical support due to Apple’s breach of its promise (id. at p. 238.); the free technical support “for as long as you own your Apple product” had been promised in brochures advertising and accompanying the products. (Id. at p. 230.) Appellants in Wershba argued that the trial “court erred in finding that the class representatives could adequately represent all of the different subgroups of the class,” which included some class members who, for example, had “paid Apple for technical support,” and others who had “paid for technical assistance elsewhere.” (Id. at p. 238.) The class representatives had called Apple and were refused free technical support but did not pay additional money for support to Apple or someone else. (Ibid.) The Court of Appeal concluded that “[t]he fact that the class representatives had not personally incurred all of the damages suffered by each different class member” did not make class certification improper because, as was also stated in Caro, supra, 18 Cal.App.4th at p. 665, “Differences in individual class members’ proof of damages is not fatal to class certification.” (Wershba, supra, 91 Cal.App.4th at p. 238, italics added.) Here, in contrast, the trial court properly concluded that differences among the proposed class members in their very entitlement to damages and in their manner of incurring damages were grounds to deny class certification. (Caro, supra, 18 Cal.App.4th at p. 665; Wilens, supra, 120 Cal.App.4th at p. 756.)
The trial court similarly found that common issues regarding causation did not predominate, because “only those people who relied on the [June 2000] letter as conferring a right to receive their ordered car can recover damages.” (See Wilens, supra, 120 Cal.App.4th at p. 754 [“Relief under the CLRA is specifically limited to those who suffer damage, making causation a necessary element of proof”].) Regarding issues of causation and reliance, the court noted first that some proposed class members “bought nothing,” and thus it is unclear they detrimentally relied on the June 2000 letter. “Secondly, even though all proposed class members received the same letter, the reasonableness of their reliance differed widely. In order to find reliance, the court would need to look at the facts relating to each individual consumer. For example the record shows that PT Cruiser buyers at the John Irish dealership in Santa Rosa were told ‘We will take your order but there is no guarantee that you will be able to get a car.’ It would not be reasonable to assume that a consumer with this information would rely upon DCMC’s letter as conferring a right to receive a car.”
Allen does not dispute the factual underpinnings of the court’s findings on causation and reliance. He instead argues that “the common act of reliance was staying on the waiting list until DCMC cancelled the orders” and argues that this common act established “a presumption of reliance.” But this case does not lend itself to a presumption that each class member relied on the June 2000 letter and thereby suffered damage. The class was defined simply to include those who (1) received the June 2000 letter and (2) did not receive a PT Cruiser pursuant to their order because the order was canceled. Allen did not limit his class definition, for example, to consumers who, after receiving the June 2000 letter, waited to purchase another PT Cruiser until after their order was cancelled. And the proposed class apparently includes consumers who were told by their dealership that there was no guarantee they would receive a car pursuant to their order.
In CLRA actions, causation can sometimes be inferred by the materiality of the misrepresentation, coupled with the class members’ acts thereafter consistent with reliance upon the representation. (Wilens, supra, 120 Cal.App.4th at pp. 755-756; Occidental Land, Inc. v. Superior Court (1976) 18 Cal.3d 355, 363 (Occidental Land).) “For example, in Vasquez v. Superior Court (1971) 4 Cal.3d 800 [Vasquez], a plaintiff brought a fraud action on behalf of consumers who had purchased frozen food and freezers on installment contracts, alleging that the defendants had materially misrepresented the quality and value of the food and freezers the plaintiffs had agreed to purchase. ‘[I]f the trial court finds material misrepresentations were made to the class members, at least an inference of reliance would arise as to the entire class.’ (Id. at p. 814.) The same reasoning was used in Occidental Land[, supra,] 18 Cal.3d 355, where the plaintiffs brought a fraud action on behalf of 155 purchasers of homes in a subdivision, alleging that the defendant developer failed to include substantial costs of maintaining common areas which were ultimately passed on to the homeowners. ‘Because the purchases made by plaintiffs were acts consistent with their reliance on the subdivision report, we conclude that the trial court did not err in inferring that justifiable reliance may be established on a common basis.’ (Id. at p. 363.)” (Wilens, supra, 120 Cal.App.4th at pp. 755-756.) In contrast to the class members in Vasquez and Occidental Land, whose acts after the alleged misrepresentations “were consistent with reliance upon the representation[s]” (Occidental Land, supra, 18 Cal.3d at p. 363), the behavior of the proposed class members here after receiving the June 2000 letter may or may not indicate reliance, depending on the facts individual to each class member.
Allen also argues that the trial court “made inconsistent findings on common proof of reliance” because the court at a later point in its order “found reliance (causation) can be established by common proof.” However, the court’s later finding was on the issue of the materiality of the alleged misrepresentations by DCMC, not on reliance. The court noted that the proper test regarding materiality was the June 2000 letter’s “effect on a ‘reasonable consumer.’ ”
b. Subclasses.
Allen asserts that “the difference in damages could have been managed by appointment of a suitable subclass representative. The court erred in denying plaintiff the opportunity to redefine the class or add a suitable representative.” Allen suggests in this appeal that creating a single subclass of plaintiffs suffering cover losses would address the differences in damages among the proposed class members. We do not see, nor does Allen explain, how such a subclass could solve the various and substantial predominance problems involving both damages and causation discussed above. As our Supreme Court has noted, “there are limits outside of which the subclassification system ceases to perform a sufficiently useful function to justify the maintenance of the class action. The instant situation represents merely an example of facts falling outside these limits.” (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 463, fn. 10.)
Moreover, there is no indication in the record that the trial court ever denied Allen the opportunity “to redefine the class or add a suitable representative.” Allen never asked to redefine the class or requested certification of a subclass, and never identified for the trial court who could represent such a subclass. “While case law makes clear that a trial court ‘has an obligation to consider the use of subclasses and other innovative procedural tools proposed by a party to certify a manageable class’ [citation], here, the plaintiff[] failed” not only to ask to redefine the class or for subclasses, but also failed “to provide the trial court with a concrete proposal describing how such subclasses would be defined, how they would be administered, or how they would help the court deal with the complexities inherent in the proposed class. We cannot conclude the trial court erred when it failed to consider something the plaintiff[] never proposed.” (Block v. Major League Baseball (1998) 65 Cal.App.4th 538, 545; see also Dunbar v. Albertson’s, Inc. (2006) 141 Cal.App.4th 1422, 1432 [“It is not sufficient . . . simply to mention a procedural tool; the party seeking class certification must explain how the procedure will effectively manage the issues in question”].)
Allen’s moving papers make no mention of redefining the class or of subclasses whatsoever. During the hearing on the certification motion, Allen’s counsel vaguely stated that “[t]here may have to be subclasses, there may be people who bought a car sometime during that interval between [the June 2000] letter and cancellations of orders. I don’t know.” After the court discussed the differences in damages among the proposed class members, Allen’s counsel said he did not know how many subclasses there might be, but argued in effect that creating subclasses was not necessary for class certification and was instead “a matter of case management.” Based on our review of the record, these were the only times the issue of subclasses was raised with the trial court.
c. Consideration of the Merits at the Class Certification Stage.
In the closing paragraph of its order denying class certification, the trial court stated that the CLRA “clearly requires that the trial court determine if the action lacks merit. If so, class certification is not appropriate.” And the court had earlier stated that Allen had “failed to show evidence that his claim has merit,” a conclusion reiterated in the final paragraph. Allen argues the trial court erred in relying on lack of merit as a ground to deny class certification, while DCMC argues that such reliance was proper. (Compare Dean Witter Reynolds, supra, 211 Cal.App.3d at pp. 766-767 [“Under the CLRA . . . lack of merit constitutes grounds for denying class action treatment”] with Linder, supra, 23 Cal.4th at p. 438 [“Nowhere does the CLRA purport to require a showing of potential success on the merits of the suit before certification may be ordered”].)
As is apparent in our discussion of the lack predominance of common issues in this case, assessing whether class action treatment is appropriate “ ‘ “generally involves considerations that are ‘enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.’ ” ’ ” (Caro, supra, 18 Cal.App.4th at p. 656; see also Linder, supra, 23 Cal.4th at p. 443 [“Indeed, issues affecting the merits of the case may be enmeshed with class action requirements, such as whether substantially similar questions are common to the class and predominate over individual questions”].) Consequently, “the fact that some evidence relevant to a class action determination may [be] . . . relevant also to the merits of the lawsuit [does] not preclude the court from considering such evidence at the hearing on [a plaintiff’s] motion for class certification.’ ” (Caro, supra, 18 Cal.App.4th at p. 656.)
In any event, we need not reach the issue of the propriety of the trial court’s consideration of the merits here because, as discussed above, the trial court relied primarily on a valid ground for denying class certification: the lack of predominance of common questions over individual ones. (Linder, supra, 23 Cal.4th at p. 436 [“ ‘Any valid pertinent reason stated will be sufficient to uphold the [class certification] order’ ”].) Thus, the court’s proper determination that common issues did not predominate was alone sufficient to defeat class certification. (Caro, supra, 18 Cal.App.4th at p. 666; see also § 1781, subd. (b) [plaintiff must prove all of the class certification criteria are satisfied].)
DISPOSITION
The appeal from the December 16, 2004 statement of decision granting summary adjudication is dismissed. The March 9, 2006 order denying class certification is affirmed. DCMC shall recover its costs on appeal.
We concur:
Kline, P.J., Lambden, J.