Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 275768. William A. Mayhew and John G. Whiteside, Judges.
Jay-Allen Eisen Law Corporation, Jay-Allen Eisen and C. Athena Roussos; Damrell, Nelson, Schrimp, Pallios, Pacher & Silva, Roger Schrimp, Clinton P. Walker, Fred A. Silva, and Kathy L. Monday; Lieff, Cabraser, Heimann & Bernstein, Jonathan D. Selbin and Kristen E. Law; Birka-White Law Offices, David M. Birka-White and Stephen Oroza; Tousley, Brain, Stephens, Beth E. Terrell and Mary B. Reiten; Cotchett, Pitre & McCarthy, Steven N. Williams, for Plaintiffs and Appellants.
Bingham McCutchen, John R. Reese, Stephen Zovickian, and Michael Isaku Begert, for Defendant and Respondent.
OPINION
Wiseman, Acting P.J.
Procedural History
Respondent Louisiana-Pacific Corporation (Louisiana-Pacific) manufactured Nature Guard shingles as a fire-resistant alternative to cedar shakes between 1995 and 1998. In January 2001, Virginia Davis, a homeowner who purchased Nature Guard for her home, brought this action on behalf of herself, and all others similarly situated, for damages and other relief, complaining that Nature Guard was not what it was promised to be and that her roof was not performing as reasonably required of a roofing material. The alleged deficiencies included cracking, moisture intrusion, discoloration, lifting, and warping.
The action was certified as a class action in November 2002. An amended master class action complaint was filed in 2002, alleging four causes of action: breach of the express warranty; breach of the implied warranty of merchantability; violation of Business and Professions Code section 17200; and a violation of the Consumers Legal Remedies Act (CLRA), Civil Code section 1750 et. seq. Named as plaintiffs and members of the representative class were Davis, Angela and Angel Jasso (Jasso family), Mahleon Oyster, George Sousa, Nick and Debra Marassi (Marassi family), and Karl Von Tagen.
During extensive pretrial sparring, the trial court granted summary adjudication in favor of Louisiana-Pacific on the implied-warranty cause of action finding that the homeowners lacked vertical privity because none had purchased Nature Guard directly from Louisiana-Pacific. The court also dismissed the CLRA cause of action on the grounds that Civil Code section 1782, subdivision (a), requires that plaintiffs give notice to the manufacturer before the commencement of an action for damages, and no notice was given to Louisiana-Pacific.
A second-amended class action complaint was filed on May 30, 2003. The pleading added Stephen Redmond as a plaintiff and class representative. Redmond had notified Louisiana-Pacific of his CLRA claim on April 8, 2003, just prior to being named as class representative in the action and long after the initial complaint had been filed and the class certified. The second-amended class action complaint purported to be a request for “injunctive relief only in order to compel [Louisiana-Pacific] to replace, correct or otherwise rectify the defective shingles.” The pleading asserted that Redmond would file an amended complaint pursuant to Civil Code section 1782, subdivision (d), in order to seek monetary damages if Louisiana-Pacific failed to respond to the notice. Redmond did so in the third-amended class action complaint, filed on July 3, 2003, which reasserted the express-warranty claim, the Business and Professions Code claim, and the CLRA claim, this time seeking monetary relief on the CLRA claim on behalf of all class members similarly situated.
The matter ultimately went to trial. After the plaintiffs rested, Louisiana-Pacific moved for nonsuit against Sousa, Von Tagen, and the Jasso and Marassi families on the express-warranty claims and against Redmond on the CLRA claim. The trial court granted the nonsuit with respect to Redmond on the CLRA claim for failure to prove reliance. The court also granted nonsuit on the express-warranty claims as to Von Tagen and the Marassi family for failure to give notice to Louisiana-Pacific in accordance with the terms of the express warranty. It also granted nonsuit with respect to Sousa because his testimony established as a matter of law that the warranty was not a basis of the bargain in purchasing his roof. Later, the trial court decertified the class, finding there were no truly common issues on the express-warranty or CLRA claims and that the individual issues predominated over any common issues. The Business and Professions Code claim remained certified as a class action. However, after a court trial, judgment was entered in favor of Louisiana-Pacific. The judgment on this cause of action has not been challenged on appeal and has no bearing on the issues that are raised.
With regard to the remaining plaintiffs, the claims were tried to a jury. The jury found in favor of Louisiana-Pacific against all remaining named plaintiffs, although not for identical reasons. The jury found that the shingles on the roofs of the residences of the Jasso family, Redmond, and Oyster performed as promised under the express warranty. The jury concluded that Davis had failed to give Louisiana-Pacific an opportunity to repair or replace her roof as required under the warranty’s terms, and that Louisiana-Pacific had not failed to replace or repair the defective shingles on the Oyster garage roof. Judgment was entered on July 20, 2006.
FACTUAL HISTORY
Louisiana-Pacific purchased the technology to manufacture a wood-particle and cement-board roof shake from a European company, Bison, which manufactured primarily siding material. Prior to marketing Nature Guard, Louisiana-Pacific passed all International Conference of Building Officials acceptance criteria for special roofing systems and satisfactorily performed numerous in-house lab tests. An independent laboratory conducted flexural strength testing in mid-1995. Nature Guard passed with four times the flexural strength set by the International Conference of Building Officials. A second laboratory demonstrated Nature Guard’s resistance to denting, cracking, and breaking. Nature Guard received roofing material and fire certification before entering the marketplace in June 1995.
Additional testing ultimately was done. In June 1995, an outside laboratory informed Louisiana-Pacific that most building products could not be warranted for more than six years. After Nature Guard was placed on the market, additional testing suggested there was a problem with the coating on Nature Guard shingles. Later, a second lab warned that the coating would last no more than five to 10 years and would need to be resealed periodically. This information was not passed on to consumers. According to the experts, the coating may affect the roof’s appearance, but it does not affect Nature Guard’s performance as a roofing material. In 1996, Louisiana-Pacific received information from an employee of 21 days’ tenure that he had heard from a roofing estimator that other manufacturers of similar products had received complaints about cracking, breaking, and loss of coating of the roof shingles. This information also was not given to consumers.
Despite the coating problem and the few questionable reports received, Louisiana-Pacific personnel had confidence in Nature Guard, believing it to be superior to other roofing products. Louisiana-Pacific expressly warranted Nature Guard for 25 years, although with specified limitations. The initial version of the warranty (pre-1996) promised that the shingles would not decompose or decay; that they would remain Class A fire-rated; and that the shingles would not be damaged by rot or vermin. A subsequent version of the warranty (post-1996) promised that Nature Guard shingles would perform reasonably as required of a roofing material by protecting against intrusion of moisture and would remain Class A fire-rated. Both warranty versions excluded changes in appearance, surface cracking, efflorescence, and lifting and warping and contained a notice-of-defect requirement and the opportunity for Louisiana-Pacific to repair or replace the defective shingles.
Nature Guard was sold through roofing contractors and not to homeowners directly. Louisiana-Pacific produced promotional literature to be used by roofing contractors that touted Nature Guard as being durable and walkable, with long-lasting good looks. The materials also stated that Nature Guard was based upon proven European technology and had been performance tested to show a strong resistance to denting, cracking, and breaking.
In 1997, Louisiana-Pacific decided to sell or close the Nature Guard plant because it was not profitable. Production ceased in September 1998.
At trial, there was conflicting testimony by experts on whether Nature Guard shingles were durable and walkable, with long-lasting good looks. Generally, the complaints of the homeowners were that the roofs were showing signs of progressive failure, including flaking, discoloration, and coating failures. In addition, the plaintiffs complained that many of the Nature Guard shingles were cracking or had broken, causing water to penetrate into the underlayers of the roof. There was also conflicting testimony about whether Louisiana-Pacific responded appropriately to the warranty claims made by plaintiffs and others. Resolution of the issues on appeal does not require us to recite the facts about each homeowner’s complaint.
Discussion
I. Implied-warranty claim
An implied warranty arises under state law in connection with the sale of a consumer product. (Atkinson v. Elk Corporation of Texas (2006) 142 Cal.App.4th 212, 228 (Atkinson).) The plaintiffs challenge the trial court’s conclusion that vertical privity is a necessary element of an implied-warranty-of-merchantability claim, brought pursuant to Civil Code section 1791.1. As support, plaintiffs cite Atkinson, Gilbert Financial Corp. v. Steelform Contracting Co. (1978) 82 Cal.App.3d 65, 69 (Gilbert), and Gherna v. Ford Motor Co. (1966) 246 Cal.App.2d 639, 652-653. We agree with the trial court that these cases are not persuasive and that, under these facts, vertical privity is required in a claim for breach of implied warranty. (See Hauter v. Zogarts (1975) 14 Cal.3d 104, 117 (Hauter) [vertical privity remains requirement for breach-of-implied-warranty claim]; Burr v. Sherwin Williams Co. (1954) 42 Cal.2d 682, 695-696 (Burr) [same]; All West Electronics, Inc. v. M-B-W, Inc. (1998) 64 Cal.App.4th 717, 723 [same]; Fieldstone Co. v. Briggs Plumbing Products, Inc. (1997) 54 Cal.App.4th 357, 371 [same].)
As Louisiana-Pacific has pointed out, Atkinson was brought under the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act (Pub.L. No. 93-637 (Jan. 4, 1975) 88 Stat. 2183; 15 U.S.C. § 2301 et seq.) and does not involve a claim under state law implied warranties. Even if we were to agree that Atkinson purports to relax state law privity requirements, the court offers no analysis or authority for its departure from the general rule requiring privity as identified in Burr and Hauter. As an intermediate reviewing court, we are obligated to follow the decisions of our state Supreme Court,at leastin the absence of a compelling reason not to do so. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Atkinson does not provide us with a compelling reason to ignore Burr and Hauter.
Likewise, Gherna v. Ford Motor Co., supra, 246 Cal.App.2d 639 and Gilbert, supra, 82 Cal.App.3d 65 are not persuasive in light of the holdings in Burr and Hauter. In Gherna, the court allowed an express-warranty claim based on (1) a written warranty provided by Ford when the car owner bought the car from the dealer, and (2) Ford’s advertisement and promotional materials relied on by the purchaser. In addition, the court allowed a claim based on the warranty of merchantability, stating that, where an express warranty arises independently of a contract of sale, i.e., through advertising materials, the implied warranties of fitness for use and merchantability apply even in the absence of privity. (Gherna v. Ford Motor Co., supra, 246 Cal.App.2d at pp. 652-653.) This holding, made without authority or analysis, conflicts with Burr and Hauter. In Gilbert, the court stated it was not deciding the privity issue since the plaintiff was a third-party beneficiary to a written contract between the general contractor and the roofing subcontractor (who was the party sued by the homeowner). (Gilbert, supra, 82 Cal.App.3d at p. 69.) It was this status that supported the plaintiff’s claim for breach of the implied warranty of merchantability. On this appeal, there is no similar argument.
The opening brief states that at trial plaintiffs claimed their implied-warranty cause of action was good in the absence of privity because they were third-party beneficiaries to the contracts between the various roofers and Louisiana-Pacific. On appeal, however, plaintiffs have not raised the issue or made any contention, supported by argument and authority, that they are third-party beneficiaries of a written contract between Louisiana-Pacific and the roofing contractors. The issue is therefore not before us. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.)
We are also not persuaded by plaintiffs’ suggestion based on Atkinson that it would be inconsistent to recognize privity when evaluating claims that the express warranties were breached, and yet reach the opposite conclusion when evaluating claims that the implied warranty of merchantability was breached. Privity is not a requirement for actions based upon express warranty. (Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 500.) We recognize that the so-called inconsistency is not without foundation. It is the breach of promises actually made and intended to reach the ultimate consumer that gives rise to an express-warranty cause of action, not the breach of implied warranties arising by operation of law. In any event, vertical privity remains a requirement in actions for breach of an implied warranty until the Supreme Court or the state Legislature declares otherwise. (See collection of cases at Burr, supra, 42 Cal.2d at pp. 695-696; see also Hauter, supra, 14 Cal.3d at p. 117; Seely v. White Motor Co. (1965) 63 Cal.2d 9, 14; Fieldstone Co. v. Briggs Plumbing Products, Inc., supra, 54 Cal.App.4th at p. 371.)
We are aware that the rule has been criticized by legal scholars and has not been followed in all states. (See 4 Witkin, Summary of Cal. Law (10th ed. 2005) Sales, § 98, p. 99 [“The privity requirement has been strongly attacked, and a legislative and judicial trend away from it is apparent”].)
The trial court correctly granted summary adjudication on the implied-warranty claims with respect to all plaintiffs.
II. Analysis of CLRA claims
A. All plaintiffs except Redmond
The CLRA protects against unfair and deceptive business practices and provides that a consumer who suffers damage as a result of a forbidden practice may bring an action to recover damages or other authorized relief. (Civ. Code, §§ 1760, 1770, 1780, 1781, subd. (a); Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 437-438.) As the trial court commented, however, in order to recover under the statute, a consumer must give notice of any alleged violation 30 days prior to suing for damages. (Civ. Code, § 1782, subd. (a); see also Outboard Marine Corp. v. Superior Court (1975) 52 Cal.App.3d 30, 40-41 [strict compliance with statutory-notice requirements needed].) The purpose of the notice requirement “is to give the manufacturer or vendor sufficient notice of alleged defects to permit appropriate corrections or replacements,” and to “facilitate precomplaint settlements of consumer actions wherever possible,” within a limited period of time. (Outboard Marine Corp. v. Superior Court, supra, at pp. 40-41.) The trial court dismissed the CLRA claims of Davis, Oyster, Sousa, Von Tagen, and the Jasso and Marassi families, because these individuals failed to comply with the statutory-notice requirements before filing suit.
The initial consolidated master class action complaint was filed on April 2, 2002. Davis, Oyster, Sousa, Von Tagen, and the Jasso and Marassi families gave statutory notice to Louisiana-Pacific in a letter dated April 5, 2002. An amended consolidated master class action complaint was filed on July 31, 2002. It included allegations that proper notice had been given. Post-complaint notice does not, however, satisfy the statutory-notice requirement. (Von Grabe v. Sprint PCS (S.D.Cal. 2003) 312 F.Supp.2d 1285, 1304.) On appeal, these plaintiffs contend that, because their initial complaint sought only equitable relief on the CLRA claim, they were entitled to invoke the provisions of Civil Code section 1782, subdivision (d), and amend the complaint at a later date, after statutory notice had been given, in order to add a claim for damages.
Civil Code section 1782, subdivision (d), provides that an “action for injunctive relief” may be brought “under the specific provisions of [Civil Code] Section 1770” without complying with the notice requirements, and the complaint may later be amended to add a claim for damages. Injunctive relief was not sought here on the CLRA claims because Louisiana-Pacific had already stopped production of Nature Guard shingles and had ceased the alleged deceptive practices. Further, we do not need to decide whether equitable relief is included within the intent of this section. The statute provides a mechanism to quickly end proscribed action likely to lead to additional consumer harm. It was not designed to circumvent the pre-complaint procedures encouraged by the notice requirements. In addition, a request for injunctive relief is tied directly to section 1770, which lists prohibited conduct. It does not identify potential remedies and, therefore, it is unlikely that injunctive relief sought to force a remedy (such as repairing or replacing a roof) falls within Civil Code section 1782, subdivision (d). In any event, we reject plaintiffs’ characterization of their initial complaint and their contention that it did not seek damages on the CLRA claim.
The allegations of the initial CLRA cause of action were that Louisiana-Pacific, through its advertising, warranty, and promotional materials, misled the public about the nature and quality of Nature Guard shingles. The plaintiffs also alleged that, as a direct and proximate cause of Louisiana-Pacific’s unfair practices, they and the other class members suffered damage, and they were therefore entitled to recover the costs of repairing and replacing their roofs. No specific prayer for relief was made, but plaintiffs asked for relief “as set forth below.” The prayer for relief found at the end of the complaint is general to all causes of action and includes a request for “[c]ompensatory damages in an amount sufficient to remove and replace all Nature Guard shingles and all other damaged property, and to reimburse Class members who have already incurred damages and losses by virtue of the removal and replacement of Nature Guard shingles, according to proof .…” The prayer also asks for “[d]amages in an amount sufficient to compensate Plaintiffs and members of the Class for the failure of Nature Guard shingles to perform as warranted by Louisiana Pacific .…” These requests for damages are not limited to the non-CLRA claims and are consistent with the allegations of the CLRA cause of action that damages have been suffered. We agree with the trial court that the initial complaint was a claim for damages made before the statutory notice was given. Civil Code section 1782, subdivision (d), does not apply.
We are also unpersuaded by plaintiffs’ argument that compliance with the statutory notice requirements is not required because the requirements are not jurisdictional. We interpret the words of a statute according to their plain meaning. (County of Fresno v. Shelton (1998) 66 Cal.App.4th 996, 1010.) The statute states that “[t]hirty days or more prior to the commencement of an action for damages pursuant to this title, the consumer shall” provide notice. (Civ. Code, § 1782, subd. (a), italics added.) “Shall” is mandatory. (Cal. Rules of Court, rule 8.765; People v. Standish (2006) 38 Cal.4th 858, 869.) We agree with Outboard Marine Corp. v. Superior Court, supra, 52 Cal.App.3d at page 41, that the legislative purposes of the statute can only be accomplished by a literal application of the notice requirements. (See also Laster v. T-Mobile USA, Inc. (S.D.Cal. 2005) 407 F.Supp.2d 1181, 1195-1196; Turunen v. Elite Auto Body (N.D.Cal. 2005) 2005 U.S. Dist. LEXIS 28651 [motion to amend would be futile because pre-filing notice did not refer to specific violations of CLRA; Civ. Code, § 1782, subd. (a)(1), requires that plaintiff, prior to commencing action, notify defendant of specific alleged violations of CLRA].)
The trial court correctly concluded that this case did not fall within Civil Code section 1782, subdivision (d). Pre-filing notice was required, but not given.
B. Redmond’s CLRA claim
Redmond’s status with respect to his CLRA claim is distinct from that of the other named plaintiffs. He joined the action as a named plaintiff in the second-amended consolidated master class action complaint (filed May 30, 2003) after the CLRA claims of the other plaintiffs were dismissed. A separate CLRA claim was drafted for Redmond and others similarly situated, but it sought only injunctive relief to force replacement or correction of the alleged defective roof shingles. A third-amended consolidated master class action complaint was filed on July 3, 2003. It added a claim for monetary damages under the CLRA, alleging compliance with the notice requirement in accordance with Civil Code section 1782, subdivision (d). At the close of evidence, the trial court granted Louisiana-Pacific’s motion for nonsuit against Redmond on the CLRA claim for failure of proof.
On review of a judgment of nonsuit, we view the facts in a light that is most favorable to the plaintiff. In determining whether a plaintiff’s evidence is sufficient, we may not re-weigh the evidence or consider questions of credibility. (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1214.) We recognize that the judgment may not be affirmed unless a defendant is entitled to judgment as a matter of law. (Hansen v. Sunnyside Products, Inc. (1997) 55 Cal.App.4th 1497, 1510.)
As we have stated, under the CLRA, a defendant is liable for deceptive practices in the sale of goods or services to consumers who were harmed by the practices. (Civ. Code, § 1780, subd. (a).) The deceptive practices alleged by Redmond include (1) representing that Nature Guard shingles had benefits or characteristics they do not actually possess; (2) representing that the shingles were of a particular standard, quality, or grade, when they were of another; and (3) concealing material facts about the nature, quality, characteristics, uses, and benefits of the Nature Guard shingles. (Civ. Code, § 1770, subd. (a)(5) & (7).) Where the allegation is one of failure to disclose, there must be an alleged representation of fact relied upon by the consumer which works to conceal a true fact. (See Daugherty v. American Honda Motor Co., Inc. (2006) 144 Cal.App.4th 824, 834; see also Bardin v. DaimlerChrysler Corp. (2006) 136 Cal.App.4th 1255, 1276 [no claim where no allegation of affirmative representation or facts establishing duty to disclose and no reliance shown]; Day v. AT & T Corp. (1998) 63 Cal.App.4th 325, 332-333 [true statement couched in manner likely to mislead or deceive consumer, such as by failure to disclose other relevant information, is actionable under consumer protection statutes].) Relief under the CLRA is limited to “[a]ny consumer who suffers any damage as a result of the use or employment by any person of a method, act, or practice” unlawful under the act. (Civ. Code, § 1780, subd. (a).) Redmond must prove that Louisiana-Pacific made a deceptive misrepresentation and that this misrepresentation harmed him. (Massachusetts Mutual Life Ins. Co. v. Superior Court (2002) 97 Cal.App.4th 1282, 1292-1293.)
On appeal, Redmond argues first that, reading the evidence in a light most favorable to him, there is an inference that he relied on misrepresentations about Nature Guard before purchasing his roof. We disagree. We see no evidence that Redmond relied upon a specific representation made by Louisiana-Pacific.
There is arguably a conflict in the evidence over whether Redmond saw a brochure about Nature Guard when talking with the roofing company from whom he purchased his roof. Redmond testified that the roofing company salesperson showed him “some kind of a brochure.” During his deposition testimony, Redmond denied seeing the brochure. On cross-examination, Redmond said he did not remember seeing any written materials but saw only the sample Nature Guard shingle. Later, he testified that he saw information in a book from the roofer that may have been a Nature Guard brochure, but did not remember any details. Even resolving this conflict in favor of Redmond, if there was a brochure about Nature Guard in the materials he reviewed, there is no evidence the brochure he saw was produced by Louisiana-Pacific and no evidence that Redmond saw a specific factual representation, true or false, in the brochure about Nature Guard. For example, the brochure could have contained only pictures, information about installation, or price—we have no way of knowing. Nor does the testimony of Louisiana-Pacific National Sales and Marketing Manager, Jonathan Rogers, assist us in determining who produced the brochure and what it stated. Rogers testified that Louisiana-Pacific produced brochures for use by the roofing company salesperson and this was the most common way Nature Guard was sold. However, there is no evidence that Redmond’s particular roofer used the Louisiana-Pacific brochure. Redmond admitted that he considered other roofing material, and the roofing company’s sales book contained brochures about these other roofing materials as well. There is no evidence Redmond actually read any of the brochures.
Redmond’s conclusion that he saw a brochure containing false factual representations made by Louisiana-Pacific, which he read before buying the Nature Guard roof, is based on speculation. He hypothesizes about what might have been in the brochure, possibly produced by Louisiana-Pacific and possibly seen by Redmond. This inference cannot reasonably be drawn from the evidence since it is based on suspicion, speculation, or conjecture. (People v. Tripp (2007) 151 Cal.App.4th 951, 959.) Still, Redmond claims he is not required to show that he relied upon a specific representation if he can establish that the representations made by the manufacturer generally are material and heard by others in the class. He cites to Massachusetts Mutual Life Ins. Co. v. Superior Court, supra, 97 Cal.App.4th 1282 to support his position, claiming that it allows for a presumption of reliance where the misrepresentation made is material. Louisiana-Pacific responds that Mirkin v. Wasserman (1993) 5 Cal.4th 1082, not Massachusetts Mutual, controls.
Massachusetts Mutual held that causation with respect to each class member may be proven by establishing that the false representation made was material. (Massachusetts Mutual Life Ins. Co. v. Superior Court, supra, 97 Cal.App.4th at p. 1292.) Under Massachusetts Mutual, if a material representation is made by the manufacturer or seller and is heard by the class members, reliance is presumed. However, the presumption only applies where there is proof that a material misrepresentation was actually made to and heard by the class members. (Id. at pp. 1292-1293, citing Vasquez v. Superior Court (1971) 4 Cal.3d 800, 814; Occidental Land, Inc. v. Superior Court (1976) 18 Cal.3d 355, 363.) For example, in Occidental Land, Inc., the court stated, “[a]s we held in Vasquez, an inference of reliance arises if a material false representation was made to persons whose acts thereafter were consistent with reliance upon the representation.” (Occidental Land, Inc. v. Superior Court, supra, at p. 363.) In Vasquez, the court stated that reliance may be inferred from the circumstances of the transaction since it affords stronger evidence of inducement than direct testimony of reliance; however, this inference is proper only if the representation was heard by consumers. (Vasquez v. Superior Court, supra, 4 Cal.3d at p. 814.) The decision in Massachusetts Mutual does not eliminate the need to prove causation when seeking damages under the statute.
The key to understanding these cases is that they address the nature of proof needed to establish causation, i.e., that the consumer relied upon a specific representation alleged to have violated the statute and suffered harm as a result. (Metowski v. Traid Corp. (1972) 28 Cal.App.3d 332, 338 [if representations were made in writing to each class member, and plaintiffs subsequently entered into contracts of sale, then persuasive inference of reliance arises without testimony from each class member].) None of these cases state that reliance can be inferred or presumed where a consumer has never heard or seen the deceptive representation. As the court stated in Mirkin v. Wasserman, supra, 5 Cal.4th at page 1095, a person who has never read or heard a misrepresentation cannot prove that he or she was harmed by it. Causation remains an element of proof in an action brought under the CLRA, requiring a plaintiff to prove that the damages suffered were the result of the proscribed conduct. (Civ. Code, § 1780; Massachusetts Mutual Life Ins. Co. v. Superior Court, supra, 97 Cal.App.4th at p. 1292.)
Redmond argues that Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1660, supports his contention that he need not prove the false representations were made directly to him nor establish the exact words that were used. We reject this position as Boeken is not a CLRA case and is factually distinguishable. Although Boeken could not prove that he relied on an advertisement of Philip Morris, he did establish by circumstantial evidence that he relied on deceitful representations by Philip Morris about the safety of smoking. He testified, “‘I was visually inundated with this brand of cigarette [Marlboro].’” He said he was “‘impressed by the ads,’” although he could not recall any specific advertisement. He remembered the advertisements’ message, if not their content, and he knew he was influenced by the ads. (Boeken v. Philip Morris, Inc., supra, at p. 1662.) No similar evidence has been alleged or proven here. Redmond cannot establish that his damages were a result of a proscribed act. This is because he cannot prove he heard or relied upon a misrepresentation or upon an affirmative representation made by Louisiana-Pacific which, coupled with an omission, concealed a material fact about the qualities, nature, use, or benefits of Nature Guard shingles.
Redmond contends in his reply brief that Louisiana-Pacific had a duty to disclose the results of reports from outside consulting agencies that suggested Louisiana-Pacific should not warranty the Nature Guard shingles for 25 years due to a variety of factors, including coating requirements, the likelihood of breakage when walked upon, and the expense of repair. In doing so, Redmond has cited no authority to support his contention that this type of information must be revealed to potential consumers. This is particularly true when Louisiana-Pacific’s tests proved otherwise or when the information, such as the coating requirements, is outside the scope of the warranty given and does not affect the quality of Nature Guard as a roofing material.
The nonsuit properly was granted.
III. Express-warranty claims
A. Claims made by Von Tagen and the Marassi family
The trial court granted nonsuit on the express-warranty claims of Von Tagen and the Marassi family because they failed to give Louisiana-Pacific notice before suing, a requirement under the terms of the written 25-year limited warranty. These plaintiffs argue that (1) notice is not required in consumer actions against remote manufacturers; (2) notice by each individual class member is not required when notice by other class members has been given; (3) the jury could have found that giving notice would have been futile; and (4) the notice requirement is unenforceable as a matter of law. Here, the express-warranty claims were tried only on the basis of the written warranty—not on any promotional materials. We therefore do not consider alleged promises made in Louisiana-Pacific’s promotional materials as creating a warranty independent of the express 25-year limited warranty.
The court denied the motion for nonsuit on the express-warranty claims of the Jasso family. There are no issues raised on appeal with respect to this order. They ultimately lost when the jury found that their roof did not fail to perform as promised.
A warranty is a contractual promise from the seller that the goods conform to the promise. An express warranty runs to all intermediate merchants and to the ultimate consumer. (Klein v. Asgrow Seed Co. (1966) 246 Cal.App.2d 87, 101.) Express-warranty claims sound in contract rather than in tort. (Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 525, fn. 23; Hauter, supra, 14 Cal.3d at p. 117 [express warranties are basically contractual in nature].) “A manufacturer’s liability for breach of an express warranty derives from, and is measured by, the terms of that warranty.” (Cipollone v. Liggett Group, Inc., supra, at p. 525.) As a result, any obligation assumed by the manufacturer or seller is not imposed by state law, but is imposed according to the terms extended by the warrantor. (Ibid.) As one court has said, “‘Express warranties are chisels in the hands of buyers and sellers. With these tools, the parties to a sale sculpt a monument representing the goods. Having selected a stone, the buyer and seller may leave it almost bare, allowing considerable play in the qualities that fit its contours. Or the parties may chisel away inexactitudes until a well-defined shape emerges. The seller is bound to deliver, and the buyer to accept, goods that match the sculpted form. [Fn. omitted.]’ [Citation.]” (Keith v. Buchanan (1985) 173 Cal.App.3d 13, 20.) Consequently, the language of the express warranties extended by Louisiana-Pacific is key to our analysis.
For our purposes, there were two express warranties given for Nature Guard shingles, one issued in 1995 and the other in 1996. Both are limited in scope by the language of coverage and the exclusions and conditions placed on the warranty. The first states that, for a period of 25 years after the date of installation, Nature Guard will not decompose or decay, will remain Class A fire-rated, and will not be damaged by rot or vermin. Excluded from the warranty is damage during installation and handling; damage caused by maintenance; extraordinary foot traffic or foreign objects falling on the roof; and “uniformity, variation, or changes in color, weathering, efflorescence, lifting, warping, surface cracks, imperfections, or other changes in the product that do not affect performance as a roofing material.” In addition, the warranty promised that, subject to the conditions, exclusions, and other provisions of the warranty, Louisiana-Pacific would “pay the cost of replacement materials and pay the cost of reinstallation labor up to an amount equal to the cost of replacement materials,” but stated that Louisiana-Pacific’s liability was limited to the costs specified.
The second warranty promised that, for a period of 25 years, Nature Guard would perform as reasonably required of a roofing material to protect against intrusion of moisture and would remain Class A fire-rated. A paragraph entitled “Exclusions from Warranty Coverage” reads, “This express warranty provides a remedy only for non-conformities reported in accordance with paragraph 6(b) below. Changes in appearance, such as variations in color, surface cracks, imperfections, efflorescence, lifting or warping are to be expected as a result of normal weathering and such changes are not covered by this warranty.” In addition, the warranty excluded misuse or improper handling, installation or maintenance, and acts of God. Under a paragraph labeled “Remedies,” the warranty states that the sole remedy for nonconformance is the option of repair or replacement of the nonconforming product or payment for replacement. Both warranties were conditioned on the owner notifying Louisiana-Pacific in writing within 30 days after discovering a possible nonconformity of the product and before beginning permanent repair. Louisiana-Pacific had the right to enter the property and inspect the alleged nonconformity.
The jury was instructed, apparently without objection from Louisiana-Pacific, that the notice had to be made within a reasonable time and was not limited to 30 days.
The terms of a warranty must be read as a whole. (Calpetro Producers’ Syndicate v. Charles M. Woods Co. (1929) 206 Cal. 246, 251-252; Rutherford v. Standard Engineering Corp. (1948) 88 Cal.App.2d 554, 565.) Louisiana-Pacific limited its promises and conditioned its warranty as specified in the warranty as it was free to do. (See Hauter, supra, 14 Cal.3d at p. 119; Daugherty v. American Honda Motor Co., Inc., supra, 144 Cal.App.4th at p. 830 [seller may limit its liability under warranty].) The conditions, exclusions, and limitations of the warranty were clearly written, in the same type and spacing as the promises made, and were well-labeled. They were not hidden as plaintiffs suggest. Plaintiffs cannot take from the warranty the promises and ignore the conditions, exclusions, and disclaimers attached to them. (See Calpetro Producers’ Syndicate v. Charles M. Woods Co., supra, 206 Cal. at p. 252 [warranty found within writing cannot be varied by parol evidence].)
The 1995 warranty was written almost entirely in all capital typeface of the same size, with categories entitled, “CONDITIONS,” “EXCLUSIONS,” “LIMITATIONS,” and “DISCLAIMER.” The notice requirement is listed under “CONDITIONS.” The 1996 warranty used the following captions, “Warranty Coverage,” “Exclusions from Warranty Coverage,” “Exclusion of Implied Warranties,” “Remedies,” “Exclusion of Other Remedies,” and “Responsibilities of Owner.” The notice requirement in the 1996 warranty fell in the latter category and was not bolded or italicized, but was of the same type size. The exclusions were written in all capitals.
Louisiana-Pacific’s promises are conditioned on receiving notice from each consumer that Nature Guard did not perform as promised. Since the notice condition was not met, recovery on the promises of the warranty is precluded. (See Platt Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 314 [under law of contract, right or duty may be conditioned on occurrence or nonoccurrence of act or event].) This is an action predicated on the express 25-year warranty made by Louisiana-Pacific, which was conditioned on notice by each consumer. The breach of an important condition will excuse the other party’s performance. (Civ. Code, § 1439; Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 12.)
We also reject plaintiffs’ contention that the notice requirement is unenforceable because it is unconscionable. The requirement of notice of a breach of warranty is based on a sound commercial rule designed to allow the manufacturer or seller the opportunity to repair the defective item, reduce damages, avoid defective products in the future, and negotiate settlements. The notice requirement also protects against stale claims. (Pollard v. Saxe & Yolles Dev. Co. (1974) 12 Cal.3d 374, 380; Fieldstone Co. v. Briggs Plumbing Products, Inc., supra, 54 Cal.App.4th at pp. 369-370.) The Uniform Sales Act contains a notice requirement that must be met before a buyer may bring an action for breach of warranty against the seller. (See Cal. U. Com. Code, § 2607, subd. (3)(A).) In cases brought under the Uniform Sales Act, when the buyer fails to notify the seller of defects, any claim under a breach-of-warranty theory is waived. Notice must not only be pleaded, it must also be proved. (Metowski v. Traid Corp., supra, 28 Cal.App.3d at p. 339.) We presume, contrary to plaintiffs’ contention, that requiring notice of defects in commercial transactions is consistent with the public policy of this state.
Finally, plaintiffs alleged that the jury could have determined that notice would be futile. We also reject this contention for three reasons. First, the cases cited by plaintiffs are distinguishable in that they concern the tender of performance in cases involving anticipatory breach or repudiation. (See Greenstone v. Claretian Theological Seminary (1959) 173 Cal.App.2d 21, 32, overruled on other grounds in Ellis v. Mihelis (1963) 60 Cal.2d 206; Goldberg v. Rempp (1928) 95 Cal.App. 452, 455 [plaintiffs admitted refusal to pay under contract].) Louisiana-Pacific has not repudiated its responsibilities under the terms of its warranty. Second, plaintiffs’ claim is inconsistent with the verdict. The jury found that Oyster proved (1) that Nature Guard failed to perform as promised, (2) that Oyster gave the required notice to Louisiana-Pacific, and (3) that Louisiana-Pacific was given an opportunity to repair or replace the defective roof tiles. Nonetheless, the jury found in favor of Louisiana-Pacific because it concluded that Louisiana-Pacific did as it promised once given notice of the defect and the opportunity to repair or replace the defective roof tiles. This verdict is inconsistent with a finding that it would be futile to provide notice to Louisiana-Pacific. Third, as we have stated, a notice requirement has many purposes: to allow the manufacturer or seller the opportunity to repair the defective item; to reduce damages; to avoid defective products in the future; to negotiate settlements; and to protect against stale claims. (Pollard v. Saxe & Yolles Dev. Co., supra, 12 Cal.3d at p. 380; Fieldstone Co. v. Briggs Plumbing Products, Inc., supra, 54 Cal.App.4th at pp. 369-370.) Plaintiffs have only argued that, in this case, notice would be futile with respect to their efforts to get their roofs repaired or replaced. They offered no evidence that the notice requirement imposed by Louisiana-Pacific would prove futile as to any other listed purpose. As long as notice serves some purpose, it is not a futile act.
The nonsuit properly was granted on the express-warranty claims of Von Tagen and the Marassi family.
B. Sousa
At trial, Sousa testified that he had never seen the warranty before purchasing his roof and that its existence was not a factor in his decision to purchase Nature Guard. He testified he “[n]ever gave [the warranty] a thought” and believed that “[w]arranties don’t mean a thing in the roofing business.” The trial court concluded on the basis of this testimony that Sousa could not show that the existence of the warranty was a basis of the bargain. Sousa argues this was error because he also testified that he had seen advertising materials touting the longevity and durability of the Nature Guard roof and he made his choice based on the representation that the roof was long lasting. He also testified that a representative from Louisiana-Pacific had told him during installation that the roof was a “50-year roof.” From this evidence, Sousa argues that the trier of fact could have concluded the warranty representations were important to him, even if he only saw the written warranty at a later date. Sousa also contends that representations concerning the quality of goods are presumed under the law to be part of the bargain, citing Keith v. Buchanan, supra, 173 Cal.App.3d at pages 23 through 24 and Hauter, supra, 14 Cal.3d at page 116, footnote 12.
The cases cited state the rule of law accurately. “A buyer need not show that he would not have entered into the agreement absent the warranty or even that it was a dominant factor inducing the agreement. A warranty statement is deemed to be part of the basis of the bargain and to have been relied upon as one of the inducements for the purchase of the product.” (Keith v. Buchanan, supra, 173 Cal.App.3d at p. 23, italics added.) However, the presumption is rebuttable by evidence that the statements of the seller did not form the basis of the bargain, i.e., was not an inducement for the purchase. (See Hauter, supra, 14 Cal.3d at pp. 115-116, citing Cal. U. Com. Code, § 2313, com. 8; Keith v. Buchanan, supra, 173 Cal.App.3d at p. 23 [no need to show reliance; representation presumed to be basis of bargain unless seller proves resulting bargain does not rest at all on representation].) Here, Sousa testified he gave the warranty no thought when he purchased the Nature Guard roof. This, in our opinion, is sufficient to rebut the presumption established under Hauter and Keith.
In any event, even if the presumption has not been rebutted and the trial court erred in granting nonsuit, Sousa cannot establish prejudice. (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1500 [even if error to grant nonsuit, judgment affirmed in absence of prejudice].) Sousa testified that he never gave Louisiana-Pacific notice that there were problems with his roof and never provided Louisiana-Pacific with an opportunity to repair or replace the roof. As we have stated, the 25-year limited warranty is conditioned on notice to Louisiana-Pacific and giving Louisiana-Pacific an opportunity to repair or replace the nonconforming roof product.
IV. Decertification order
After granting nonsuit on the express-warranty and CLRA claims, the trial court held that the remaining issues were unique to each consumer who had bought Nature Guard and decertified the class action as to all issues except the Business and Professions Code section 17200 claim. Plaintiffs claim this was an abuse of discretion. We disagree.
Since trial courts are situated ideally to evaluate the efficiencies and practicalities of permitting group action, they have great discretion in granting or denying certification. (Linder v. Thrifty Oil Co., supra, 23 Cal.4th at pp. 435-436.) A trial court’s ruling to certify or decertify a class action will not be disturbed unless (1) improper criteria were used or (2) erroneous legal assumptions were made. (Ibid., see also Petherbridge v. Altadena Fed. Sav. & Loan Assn. (1974) 37 Cal.App.3d 193, 199.) Any valid reason given will be sufficient to uphold the court’s order. (Occidental Land, Inc. v. Superior Court, supra, 18 Cal.3d at pp. 360-361.)
The trial court issued a well-reasoned 15-page opinion explaining its decision to decertify the class. It did so after hearing the plaintiffs’ entire case, after deciding several issues of law in light of the evidence, and following grants of nonsuit with respect to a number of claims. The court stated it was unable to identify any truly common issues relating to liability or damages on the express-warranty and CLRA claims. It identified numerous reasons why it no longer believed class treatment was appropriate.
The express-warranty claims were certified based on allegations that Nature Guard shingles were inherently defective and substantially certain to fail within the 25-year guaranty. The warranty at issue, however, is not a no-defect warranty. There are two different written warranties controlling, with very specific exclusions and conditions. Not all claimants heard the promises made. Not all relied upon the warranty when purchasing Nature Guard (and because no common representation was heard by all class members, we cannot assume reliance), and not all complied with the conditions in the warranty. Whether the shingles performed as warranted by Louisiana-Pacific and whether Louisiana-Pacific broke the promises made in its warranty cannot be established by common proof. (See Slakey Bros. Sacramento, Inc. v. Parker (1968) 265 Cal.App.2d 204, 207-208 [affirming denial of certification where no common misrepresentation made to all class members].)
The nature of the warranty and of the evidence concerning how the shingles failed to perform varied from plaintiff to plaintiff. Damages varied from house to house depending on the nature of the claim and the causation that could be shown. There was also defense evidence that addressed the claimed defects that varied from roof to roof. For example, there was evidence that leaks can occur for a number of reasons unrelated to the performance of the Nature Guard shingles, and there was evidence to suggest these other factors may have caused the leaks found in the Jasso, Redmond, and Davis homes. This raised issues of individual proof of causation. The trial court’s observations about the lack of common issues are supported by the record and are consistent with the applicable law.
A class action is dependent upon the existence of an ascertainable class and a well-defined community of interest in the questions of law and fact involved. (Vasquez v. Superior Court, supra, 4 Cal.3d at p. 820.) There must be a substantial benefit both to the litigants and to the court. (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 460 [benefit not shown where liability to class cannot be established by facts common to all].) Certification properly is denied where “the individual questions to be decided may prove too complex, numerous and substantial to allow the class action [citation] or the benefits to be gained may not be significant enough to justify imposition of a judgment binding on absent parties. [Citation.]” (Harrison v. Board of Supervisors (1975) 44 Cal.App.3d 852, 862.) Although class actions generally are favored, they “will not be permitted … where there are diverse factual issues to be resolved, even though there may be many common questions of law.” (Brown v. Regents of University of California (1984) 151 Cal.App.3d 982, 988-989.)
Applying these principles and deferring to the trial court’s well-reasoned analysis, we conclude there was no abuse of discretion in decertifying the class action.
V. Instructional error
Lastly, the plaintiffs allege a number of instructional errors. We review alleged instructional error for prejudice. Under this standard, the judgment must be affirmed unless the appellant can show an error was so prejudicial that it resulted in a miscarriage of justice. (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 872.)
A. Hicks instruction
Plaintiffs contend that the trial court erred when it instructed the jury that it had to prove current failure of their Nature Guard roof, citing as authority the case of Hicks v. Kaufman & Broad Homes Corp. (2001) 89 Cal.App.4th 908, review granted May 12, 2004, S123054. This case is not citable authority. “The citation violates the general rule that an unpublished opinion ‘shall not be cited or relied on by a court or a party in any other action or proceeding .…’ [Citations.]” (People v. Russo (2001) 25 Cal.4th 1124, 1133, fn 1.) Although the order granting review was ultimately dismissed on February 1, 2006, once review was granted, the appellate court decision cannot be cited. This is true even if the grant of review is later dismissed, unless the Supreme Court orders that the appellate decision remain published. (Cal. Rules of Court, rules 8.1105(e)(1) & (2), 8.1115.) To the contrary, a request to republish the appellate court’s decision in Hicks was denied by the Supreme Court on October 11, 2006.
There was evidence from plaintiffs’ expert at trial that the Nature Guard roof was substantially certain to fail prematurely (before the 25-year warranty period ended). There was no evidence about when in the 25-year period the roofing material would fail.
In any event, the instruction, requested properly, was refused because it is an incorrect statement of the law, given the language of the limited warranty offered by Louisiana-Pacific. As the trial court observed, the warranty extended by Louisiana-Pacific, when read in its entirety, was not that the roof would not fail within the 25-year period, but that, if it failed, Louisiana-Pacific would repair or replace it. Since a warranty is contractual in nature, Louisiana-Pacific cannot be obligated to do more than it promised to do. Plaintiffs cannot cite to portions of the Nature Guard warranty and argue their similarity to the warranty at issue in the now-unpublished Hicks decision, without including in the analysis the conditions found in remaining portions of the Nature Guard warranty, but absent in the Hicks warranty. (Lazar v. Superior Court (1940) 16 Cal.2d 617, 622 [entire document must be construed as a whole to effectuate obvious intention].) An instruction similar to the one requested by plaintiffs was inappropriate given the warranty offered by Louisiana-Pacific. (See People v. Brown (2003) 31 Cal.4th 518, 569 [trial court may refuse proffered instruction if it is incorrect statement of law].)
B. Notice and opportunity-to-repair instructions
Plaintiffs also contend it was error to instruct the jury that they had to prove they took “reasonable steps to notify [Louisiana-Pacific] within a reasonable time that the … product was not as promised whether or not [Louisiana-Pacific] received such notice” and “gave [Louisiana-Pacific] the opportunity to repair, replace or pay to replace any Nature Guard product that did not perform as promised .…” This argument is essentially a repeat of plaintiffs’ contention that the notice requirement was not individual to each class member, was unenforceable, and that the opportunity to repair or replace a defective roof was not an element of the warranty. We have already rejected these arguments, concluding that the conditions found in the warranty were part of the promise made. Any claim that Louisiana-Pacific’s warranty has been breached must include proof that the conditions of the warranty have been met. Judicial Council of California Civil Jury Instructions (CACI) No. 1230 instructs trial courts to insert a description of the “alleged express warranty.” The entire promise and its terms provide the elements of proof that are required. (Lazar v. Superior Court, supra, 16 Cal.2d at p. 622.) For the same reason, we determine it was not error to instruct the jury that notice was an element of the express-warranty cause of action and that a successful plaintiff on a breach of warranty claim must prove that Louisiana-Pacific was given an opportunity to repair or replace the problem roof, yet failed to do so.
C. Futility instruction
Finally, plaintiffs contend the trial court should have instructed that the jury could find any notice requirement was excused because notice would have been futile. We have already addressed this argument and located no evidence to support a finding that giving notice would have been futile. The trial court need not give an instruction unsupported by the evidence. (See Jenkins v. Insurance Co. of North America (1990) 220 Cal.App.3d 1481, 1488 [trial court must instruct jury on law applicable to the facts developed by the evidence]; United Pacific Co. v. Southern Cal. Edison Co. (1985) 163 Cal.App.3d 700, 712 [jury instructions are to be considered along with the evidence presented at trial].) In any event, even if there were supporting evidence, there is no prejudice. The jury already found in the Oyster verdict that Louisiana-Pacific would replace a defective roof if allowed to do so.
DISPOSITION
The judgment is affirmed. Costs are awarded to Louisiana-Pacific.
WE CONCUR: Levy, J., Kane, J.