Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of San Diego County No. GIC835578, Linda B. Quinn, Judge.
HALLER, Acting P. J.
Shahrokh Doctor Safaie appeals from an order decertifying his lawsuit against Jacuzzi as a class action. He asserts the trial court had no authority to change its previous ruling granting class certification; the court applied erroneous legal standards when it decertified the class; and the record does not support the decertification ruling.
The defendants, referred to collectively as Jacuzzi, are Jacuzzi Whirlpool Bath, Inc. and Jacuzzi, Inc.
We reject his arguments and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2004, Safaie filed a class action complaint against Jacuzzi alleging causes of action for violations of the Unfair Competition Law (UCL) and False Advertising Law (FAL) (Bus. & Prof. Code, §§ 17200 et seq., 17500 et seq.); violation of the Consumers Legal Remedies Act (CLRA) (Civ. Code, § 1750 et seq.); breach of express warranty; and breach of the implied warranty of merchantability under the Song-Beverly Consumer Warranty Act (Song-Beverly Act) (Civ. Code, § 1790 et seq.).
A violation of the FAL is necessarily a violation of the UCL. (Bus. & Prof. Code, § 17200; Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 951.) For purposes of this opinion, it is not necessary to distinguish between the FAL and the UCL; accordingly for convenience we will generally refer to these statutes collectively as the UCL.
Safaie alleged that Jacuzzi made representations in its brochures, marketing materials, and advertisements that certain models of its whirlpool bathtubs had two- or three-horsepower motors, when in fact the tubs had less horsepower. Safaie, a plumber, was looking for a whirlpool tub with strong jets that would provide an effective massage, and when he received a Jacuzzi brochure stating the Torretta model tub had a three-horsepower motor he believed this tub would meet his needs. Accordingly, he purchased the tub and remodeled his bathroom to accommodate it. When he operated the tub, he noticed the water jet pressure was "not sufficiently powerful." He later determined the tub contained only a 1.5-horsepower motor. Safaie alleged that Jacuzzi's deceptive practices allowed it to sell more whirlpool tubs than it otherwise would have and/or allowed it to charge inflated prices for its tubs. The relief requested by Safaie included injunctions prohibiting Jacuzzi from disseminating the deceptive advertising materials and requiring it to place corrective advertising advising the public of its past inaccuracies, and restitution and other relief to purchasers.
Trial Court's Ruling Granting Class Certification
In July 2005, Safaie filed a motion for class certification. Jacuzzi opposed the motion, contending, inter alia, that the issue of whether the average consumer relied on and suffered loss from the horsepower rating was too individualized to permit class treatment. In October 2005, the trial court granted Safaie's request for class certification. The court certified a nationwide class for the UCL and express warranty causes of action and a California-resident class as to all causes of action. The class consisted of: " '[a]ll persons who, during the applicable statute of limitations, purchased a new Jacuzzi brand Designer-Series Whirlpool Bath during the period in which Jacuzzi used its "Designer Foldouts" and other similar materials to advertise and market such Baths as having motor pumps with either 3 or 2 horsepower when, in fact, the motor pumps possessed substantially less horsepower.' "
In its order granting the class certification, the court stated that its ruling was tentative and could be modified at any time prior to trial.
Trial Court's Ruling Decertifying the Class
Meanwhile, in November 2004, the voters adopted Proposition 64, which altered the standing rules applicable to UCL claims. Prior to Proposition 64, any person—even if the person had not suffered any injury—could file a UCL lawsuit on behalf of the general public. Based on concerns that this lenient standing rule was encouraging frivolous lawsuits, voters adopted Proposition 64, which amended the UCL to require that a private plaintiff had to personally incur injury to have standing to file the lawsuit. (See Californians for Disability Rights v. Mervyn's, LLC (2006) 39 Cal.4th 223, 228 (Mervyn's).)
At various points during the proceedings, the parties and the court discussed the passage of Proposition 64 and its potential impact on the case. Further, after the court's tentative certification ruling, the parties and the court discussed avenues of discovery that might be pursued that could impact class certification or decertification. In June 2006, the trial court told the parties that the class certification issue was not fully resolved, and the parties should be prepared to discuss the matter in light of an anticipated California Supreme Court ruling and in the event of a decertification motion. In July 2006, the California Supreme Court concluded Proposition 64 should be applied to pending cases. (Mervyn's, supra, 39 Cal.4th at p. 227.) Thereafter, the California Supreme Court granted review of two published appellate court decisions addressing various issues raised by Proposition 64. (In re Tobacco II Cases (S147345, rev. granted Nov. 1, 2006); Pfizer, Inc. v. Superior Court (S145775, rev. granted Nov. 1, 2006.)
In September 2006, Jacuzzi filed a motion to decertify the class, again arguing that class certification was not appropriate because the issues of reliance, causation, and damages were too individualized. To refute this contention, Safaie argued that reliance could be shown based on an inference of common reliance by class members—i.e., Jacuzzi's overstatement of the horsepower rating was a misrepresentation about a material factor, and thus reliance could be inferred on a class wide basis.
To support decertification, Jacuzzi submitted a declaration from a professor of marketing setting forth his views as to whether whirlpool tub purchasers would be influenced by horsepower rating. Safaie objected to admission of the declaration, and in its ruling decertifying the class the trial court stated it was not relying on the declaration. Because the trial court did not rely on this evidentiary item, we do not consider it here.
During the course of the certification and decertification proceedings, Safaie submitted various evidentiary items to support his position that class treatment was appropriate, including documents depicting the manner in which Jacuzzi presented the horsepower statement to the public. These documents included a brochure, product price books, catalogues, web pages, and a retail receipt provided upon purchase of a tub. In these documents, the reference to the motor's horsepower consisted of a line stating "2.0 [or 3.0] HP motor," which was included among other statements describing the tub's features. The Jacuzzi brochure (which was provided to Safaie) set forth a claim by Jacuzzi that its jets were more powerful than the jets in other manufacturers' tubs, stating that its "patented Jacuzzi PowerPro[] jet is clearly more powerful than any other product of its kind." Additionally, Jacuzzi's brochure, catalogues and Web site contained various statements describing the bathing experience provided by its tubs, such as: "Our PowerPro[ ] jet system provides the ultimate bathing experience with six jets: four fully adjustable hydrotherapy jets and two rotating neck jets"; "Ten adjustable jets surround you with soothing, full-body hydrotherapy as you lie back and relax against the built-in head rest. Our patented Silent Air Control System lets you customize your hydromassage with the touch of a finger"; "The [tub] also features four patented PowerPro[ ] jets and our Silent Air Control System, providing optimal hydrotherapy performance."
For example, the brochure set forth a list of features for the Torretta model tub as follows: "Torretta 36: 72" X 36" X 23-1/2". . . . Two fully adjustable PowerPro HTA jets: Maximum flow rate of 45 GPM per jet. [¶] . . . [¶] Two fully adjustable PowerPro HTC jets: Maximum flow rate of 30 GPM per jet. RapidHeat in-line heater 115V, 15 AMP separate service. [¶] Four directionally adjustable BMH side jets: Maximum flow rate of 9 GPM per jet. [¶] Integral head rest. [¶] Patented Silent Air Control System. [¶] Underwater light. [¶] Whirlpool motor pump: 3.0 HP, 115V, 20 AMP service."
In more detail, the brochure states: "The patented Jacuzzi PowerPro jet is clearly more powerful than any other product of its kind. Major jet systems in the whirlpool bath industry were tested under identical conditions to evaluate the performance of each system's jet action. The test protocol was the same for each jet, and the photography, as shown, represents air/water travel and volume as actually occurred in the test. Only Jacuzzi PowerPro HTA jets provide a flow rate of 45 GPM for soothing hydrotherapy. [¶] Only Jacuzzi PowerPro hydrotherapy jets have the power to be gentle, creating a broad, circular pattern of bubbles that caresses the entire body; not just the area in front of the jet. While other manufacturers inject only limited air into a high-pressure stream of water, our fully adjustable PowerPro jets move more air and water through bigger jets, creating a consistent one-to-one ratio of air to water. The result is the broadest—and quietest—hydrotherapy action in the industry."
Safaie also submitted deposition testimony and documentary evidence to support his theory that Jacuzzi had intentionally overstated the horsepower rating to influence customers and augment sales. For example, he submitted a Jacuzzi inter-office memoranda describing the company's revision of its horsepower ratings in its catalogs, and a technical bulletin created by Jacuzzi's customer service department advising its authorized service agents that it was changing the way it referred to the horsepower ratings in its marketing literature. The technical bulletin included a chart depicting that references to 1.5- or .75- horsepower would now be referred to as 3.0- or 2.0- horsepower, respectively. The bulletin instructed the service agents to familiarize themselves with the horsepower ratings in the chart "in the event that you mention anything related to the horsepower with the consumer." Safaie also provided a document, which appears to be part of a Powerpoint presentation, that sets forth a list of the tubs' features, including the two- or three-horsepower motor. According to Safaie (but disputed by Jacuzzi), this document was included in sales training materials provided by Jacuzzi to a third party. Safaie submitted deposition testimony that includes a reference to a statement made by Jacuzzi, apparently in these same materials, that its "unique patented Jacuzzi PowerPro jet is more powerful than any other product of its kind."
In June 2007, the trial court granted Jacuzzi's decertification motion, concluding individual issues of fact predominated over common issues. The trial court reasoned: "The class definition does not take into account the reliance-causation and damages elements that are a required part of every claim by each and every class member. In fact, the class definition demonstrates variations in reliance-causation and damages among the class members. In this regard, the class definition includes many of those who bought defendant's whirlpool bath for reasons other than the advertisement horsepower number, and not as a result of any allegedly overstated horsepower number. Moreover, the class includes many of those who did not incur any loss, fee, or other injury in fact as a result of an allegedly overstated horsepower number. [¶] . . . [¶] Essentially, individual issues of fact (reliance-causation and damages) . . . predominate."
The trial court also ruled that the case was not amenable to a nationwide (as opposed to statewide) class certification because individual issues of law predominated over common issues. We conclude below that the record supports the trial court's finding that class certification was not appropriate because individual issues predominated on the elements of reliance, causation, and injury. Accordingly, we need not delineate the materials presented by the parties relevant to the nationwide certification issue, nor need we evaluate the parties' arguments pertinent to this aspect of the court's ruling.
DISCUSSION
Safaie contends: (1) the trial court had no authority to change its certification ruling; (2) the trial court applied the wrong legal standards when concluding that individual issues predominated over common issues as to reliance, causation, and injury; and (3) the record does not support the court's decertification ruling. We reject his assertions, and conclude substantial evidence supports the court's ruling.
I. Trial Court's Authority to Change its Certification Ruling
Safaie argues the trial court had no authority to change its ruling granting certification absent new evidence or law that was previously unavailable. The rule requiring changed circumstances or newly available evidence has been applied when a trial court decertifies a class after a decision on the merits of the plaintiff's claims. (Green v. Obledo (1981) 29 Cal.3d 126, 145-149; Grogan-Beall v. Ferdinand Roten Galleries, Inc. (1982) 133 Cal.App.3d 969, 977; see also Fireside Bank v. Superior Court (2007) 40 Cal.4th 1069, 1083-1084.) Here, the trial court's decertification ruling occurred before adjudication on the merits.
Further, the California Supreme Court has recently confirmed a trial court's authority to reconsider, on its own motion, its interim rulings without changed circumstances. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1096-1097, 1107-1109.) When the trial court granted the certification motion, it expressly stated its ruling was tentative and could be modified prior to trial. Later, the trial court stated that there were unresolved issues concerning the class certification, and instructed the parties to present further arguments on this issue. Although the court's decertification ruling was ultimately based on Jacuzzi's filing of a decertification motion, the record supports that the ruling was a proper exercise of the court's authority to change its earlier interim ruling. (See In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1308-1309.)
Moreover, even if a changed circumstance requirement were applicable here, this criterion was met at least as to the UCL claim given the evolving law after the passage of Proposition 64. The trial court's tentative ruling granting class certification may have been based on the more lenient pre-Proposition 64 standards; i.e., the court may have reasoned that class treatment was at least appropriate for the UCL claim and it could refine its ruling regarding the other claims if necessary at a later juncture. After the trial court granted the certification motion, the California Supreme Court ruled that Proposition 64 should be applied to pending cases. Given this development, the trial court did not err in revisiting the certification issue as to all claims.
II. Merits of the Trial Court's Decertification Ruling
To facilitate our review of Safaie's challenges to the merits of the court's ruling, we first set forth the general rules governing a trial court's decision whether to certify an action as a class action. Second, we evaluate the standards applicable to a plaintiff seeking class certification in an action alleging misrepresentations regarding consumer goods. As we shall discuss, common law misrepresentation claims require a showing of reliance, causation, and injury. Misrepresentation claims have also been subject to other particularized statutory and decisional rules; however, the common law elements remain generally applicable, although sometimes in modified form.
Here, Safaie's causes of action are premised on several different sources of relief for consumers. We first evaluate Safaie's CLRA, Song-Beverly, and express warranty claims. Given the unique history of the UCL and the still-unresolved issues arising from the recent amendment to the UCL, we shall separately evaluate his UCL claim. We conclude there is no showing the trial court applied incorrect legal standards, and the record supports the trial court's ruling decertifying the class.
A. General Principles Governing Class Certification
A plaintiff seeking class certification has the burden to show the existence of an ascertainable class and a well-defined community of interest among the class members. (Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1104 (Lockheed); Code Civ. Proc., § 382; Civ. Code, § 1781.) The plaintiff must show " 'that questions of law or fact common to the class predominate over the questions affecting the individual members.' " (Lockheed, supra, 29 Cal.4th at p. 1104 .) A plaintiff's "burden on moving for class certification . . . is not merely to show that some common issues exist, but, rather, to place substantial evidence in the record that common issues predominate." (Id. at p. 1108.) This means each class member must not be required to individually litigate numerous and substantial questions to determine his or her right to recover. (Ibid.)
Code of Civil Procedure section 382, which generally governs class actions, provides for a class action "when the question is one of a common or general interest, of many persons . . . ." Civil Code section 1781, which governs class actions for a CLRA claim, contains a similar community of interest provision. (Civ. Code, § 1781, subd. (b)(2) [class action proper when "questions of law and fact common to the class are substantially similar and predominate over the questions affecting the individual members"]; see Massachusetts Mutual Life Ins. Co. v. Superior Court (2002) 97 Cal.App.4th 1282, 1287 (Massachusetts Mutual).)
Class action status "does not alter the parties' underlying substantive rights. [Citations.] If a specific form of relief is foreclosed to claimants as individuals, it remains unavailable to them even if they congregate into a class." (Feitelberg v. Credit Suisse First Boston, LLC (2005) 134 Cal.App.4th 997, 1018.) Although the trial court does not rule on the merits of the lawsuit when deciding class certification, the court may be required to consider the elements of the claims and defenses to determine if the need for individualized proof of class members' claims predominates over common proof. (Lockheed, supra, 29 Cal.4th at p. 1106; Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 439-440, 443; Caro v. Procter & Gamble Co. (1993) 18 Cal.App.4th 644, 656 (Caro); see Fireside Bank v. Superior Court, supra, 40 Cal.4th at pp. 1091-1092.)
Predominance of common or individual issues is a comparative concept. (Sav-On Drug Stores, Inc. v. Superior Court (2004)34 Cal.4th 319, 334 (Sav-On).) Class certification does not require that all the elements of the claims asserted on behalf of the proposed class members be capable of common proof; however, the trial court must find that the individualized aspects of proof can be effectively managed. (Lockheed, supra, 29 Cal.4th at pp. 1105-1106; Sav-On, supra, 34 Cal.4th at p. 334.) If the potential for the defendant's liability to class members varies greatly among class members so as to require extensive individualized proof, the trial court may properly conclude the action is not appropriate for class treatment. (Caro, supra, 18 Cal.App.4th at pp. 668-669; Wilens v. TD Waterhouse Group, Inc. (2003) 120 Cal.App.4th 746, 756; Akkerman v. Mecta Corp., Inc. (2007) 152 Cal.App.4th 1094, 1102-1103; Fletcher v. Security Pacific National Bank (1979) 23 Cal.3d 442, 448-449 (Fletcher); City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 461.)
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. (Sav-On, supra, 34 Cal.4th at pp. 326-327.) When the trial court's ruling turns on inferences to be drawn from the facts, we have no authority to substitute our decision for that of the trial court. (Id. at p. 328.) We draw all reasonable inferences in favor of the court's ruling, and affirm the court's order if supported by substantial evidence unless the trial court used improper criteria or made erroneous legal assumptions. (Id. at pp. 326-329.)
B. CLRA, Song-Beverly, and Express Warranty Claims
To show injury caused by a defendant's misrepresentation, common law principles require that a plaintiff establish the element of reliance. (Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1088, 1092 (Mirkin).) Reliance exists when " 'the representation has played a substantial part, and so is a substantial factor, in influencing [the plaintiff's] decision.' " (Engalla v. Permanente Medical Group, Inc. (1977) 15 Cal.4th 951, 977.) Reliance also incorporates the concept of a material misrepresentation that underlies actionable fraud; i.e., " ' "A misrepresentation of fact is material if it induced the plaintiff to alter his position to his detriment. [Citation.] Stated in terms of reliance, materiality means that without the representation, the plaintiff would not have acted as he did." ' " (Caro, supra, 18 Cal.App.4th at p. 668.)
Generally, the reliance, causation, and injury components of a common law misrepresentation claim have been implicitly incorporated into the statutes affording remedies for misrepresentations to consumers. The CLRA prohibits certain unfair and deceptive business practices, and provides for a broad range of recovery including actual damages, punitive damages, and attorney fees. (Civ. Code, §§ 1760, 1780, subds. (a)(1), (5), (d).) To obtain relief under the CLRA, the plaintiff must show harm caused by the defendant's conduct, which includes the reliance element. (Civ. Code, § 1780, subd. (a) ; Massachusetts Mutual, supra, 97 Cal.App.4th at pp. 1292-1293; Buckland v. Threshold Enterprises, Ltd. (2007) 155 Cal.App.4th 798, 809-810.)
Civil Code section 1780, subdivision (a) provides that a CLRA claim may be brought by "[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.
The implied warranty of merchantability under the Song-Beverly Act includes a requirement that consumer goods "[p]ass without objection in the trade under the contract description" and "[c]onform to the promises or affirmations of fact made on the container or label." (Civ. Code, § 1791.1, subd. (a)(1), (4).) This type of claim also includes a reliance element. (See Burr v. Sherwin Williams Co. (1954) 42 Cal.2d 682, 696-697.)
An express warranty violation occurs when a seller of consumer goods makes a false affirmation of fact or description about a product that forms "part of the basis of the bargain." (U. Com. Code, § 2313, subd. (1)(a), (b); Keith v. Buchanan (1985) 173 Cal.App.3d 13, 20-21.) In Hauter v. Zogarts (1975) 14 Cal.3d 104, 115-116, the court noted that the "basis of the bargain" language in the express warranty statute could be interpreted to shift the burden of proving non-reliance to the seller, or to entirely remove the reliance element from express warranty claims. The Hauter court declined to resolve this issue because it was not necessary to do so in the case before it. (Id. at pp. 116-117.) In Keith, supra, 173 Cal.App.3d at page 23, the court evaluated the Hauter decision and concluded that the burden-shifting interpretation was the proper one, holding that the basis-of-the-bargain language allowed the plaintiff to rely on a presumption of reliance on an express warranty and placed the burden on the defendant to rebut this presumption by showing that "the resulting bargain [did] not rest at all on the representation[ ]. . . ." Regardless of the extent to which the reliance element has been statutorily altered or removed from express warranty claims, the plaintiff must show injury from the breach of express warranty to obtain any recovery beyond nominal damages. (See 3 Anderson U.C.C. § 2-313:222 (3d. ed. 2008); Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 142; Moody v. Peirano (1906) 4 Cal.App. 411, 415.)
When evaluating whether a plaintiff should be permitted to maintain a class action based on misrepresentations, the courts have rejected the assertion that the case is not amenable to class treatment because the plaintiff will necessarily have to present individualized proof of class members' reliance. Rather, the courts have concluded that if the plaintiff shows a material misrepresentation was made to class members, the plaintiff may rely on a rebuttable "inference of common reliance." (Massachusetts Mutual, supra, 97 Cal.App.4th at p. 1293; Vasquez v. Superior Court (1971)4 Cal.3d 800, 814; Occidental Land, Inc. v. Superior Court (1976) 18 Cal.3d 355, 363 (Occidental); Caro, supra, 18 Cal.App.4th at p. 667, fn. 20.)
An individual plaintiff may also rely on an inference of reliance if he or she shows the misrepresentation was material. (Engalla v. Permanente Medical Group, Inc., supra, 15 Cal.4th at pp. 976-977.)
Under this principle, "when the same material misrepresentations have actually been communicated to each member of a class, an inference of reliance arises as to the entire class." (Mirkin, supra, 5 Cal.4th at p. 1095, italics omitted.) The plaintiff is deemed to have satisfied his or her burden " 'of showing causation as to each by showing materiality as to all.' " (Massachusetts Mutual, supra, 97 Cal.App.4th at p. 1292.) "A misrepresentation is judged to be 'material' if 'a reasonable [person] would attach importance to its existence or nonexistence in determining his choice of action in the transaction in question.'. . . " (Engalla v. Permanente Medical Group, Inc., supra, 15 Cal.4th at p. 977.)
This principle has been used to evaluate CLRA misrepresentation claims (Massachusetts Mutual, supra, 97 Cal.App.4th at pp. 1292-1293), and breach of implied warranty of merchantability claims (Metowski v. Triad Corp. (1972) 28 Cal.App.3d 332, 336-341). Further, this principle, which affords leniency for proving reliance, is consistent with the basis-of-the-bargain standard used for express warranty claims which shifts the burden on, or arguably removes, the reliance element.
Legal Standards Applied by Trial Court
Safaie argues the trial court failed to consider the inference of common reliance standard, and instead assumed that he had the burden to present individualized proof of reliance for the class members. We are not persuaded. Safaie is correct that reversal is required if a court's ruling on the class certification issue is based on improper criteria or incorrect assumptions, even though there may be substantial evidence to support the court's order. (Linder v. Thrifty Oil Co., supra, 23 Cal.4th at p. 436.) However, in the absence of a contrary showing in the record, we presume the trial court properly followed established law. (Ross v. Superior Court (1977) 19 Cal.3d 899, 913.)
To support his assertion that the trial court did not evaluate the case under the inference of common reliance standard, Safaie cites the language used in the trial court's written ruling. In this ruling, the court stated that reliance, causation, and damages "are a required part of every claim by each and every class member"; "the class definition demonstrates variations in reliance-causation and damages among the class members"; and "individual issues of fact (reliance-causation and damages) . . . predominate" because the class includes many persons who bought the whirlpool tub for reasons other than the horsepower number and did not incur any loss because of the overstatement of horsepower number.
These statements merely reflect the trial court's understanding that reliance, causation, and damages are elements of the misrepresentation claims for each class member, and the court's conclusion the case was not predominantly susceptible to common proof because there was too much variation on the issue of whether these elements would exist for the class members. The ruling is silent as to the standards that the trial court used when deciding whether individual or common questions predominated. Accordingly, we assume the trial court understood that the well-established inference of common reliance and presumption of reliance standards were applicable to evaluate the predominance issue.
Safaie also argues the trial court erred because it considered the elements and merits of his claims when evaluating whether individual or common issues predominated. The contention is unavailing. Although a trial court deciding the class certification issue does not rule on the merits of the plaintiff's claims, considerations pertinent to the propriety of class treatment may overlap with the merits of the case. (Fireside Bank v. Superior Court, supra, 40 Cal.4th at pp. 1091-1092; Lockheed, supra, 29 Cal.4th at p. 1106; Caro, supra, 18 Cal.App.4th at p. 656.) To determine the extent to which class members' claims could be shown by common proof, the trial court properly considered whether there were potential variations in the class members' ability to satisfy the elements of the claims. (See, e.g., Lockheed, supra, 29 Cal.4th at p. 1109 [plaintiffs failed to demonstrate predominance of common issues given that existence of particular element was likely to vary extensively among class members]; City of San Jose v. Superior Court, supra, 12 Cal.3d at p. 460-461 [plaintiffs failed to show predominance of common issues given that defendant's potential liability was predicated on facts peculiar to each class member and required extensive examination of the circumstances surrounding each class member].)
Substantial Evidence
We next turn to the issue of whether the record supports the court's conclusion that individual issues predominated. Safaie contends the class members' claims were provable by an inference of common reliance, thus showing common issues predominated. For a plaintiff to rely on an inference of common reliance among class members, the misrepresentation must have been actually made to the class members, and it must be a material factor to the class members when deciding to engage in the transaction. (Mirkin, supra, 5 Cal.4th at p. 1095; Occidental, supra, 18 Cal.3d at p. 363; Massachusetts Mutual, supra, 97 Cal.App.4th at pp. 1292-1293.) Based on the various documents available to purchasers depicting the horsepower rating for the tubs, the record supports that the alleged horsepower misrepresentation was communicated to the class members. However, the trial court could reasonably conclude the misrepresentation was not shown to be material to many purchasers, and thus the case did not support an inference of reliance applicable on a class wide basis.
In his briefing on appeal, Safaie appears to suggest that he is also alleging that Jacuzzi misstated the gallons-per-minute water flow rate of its tubs. This issue is not included in Safaie's complaint; the trial court did not address it in its written ruling; and Safaie has not cited to anything in the record showing it was clearly presented to the trial court for consideration on the class certification question. Accordingly, we confine our analysis to the alleged horsepower misrepresentation.
The documents submitted by Safaie show the horsepower rating was included among a list of various other features describing the tub to the public. Although Jacuzzi's materials used descriptive language to generally highlight the superior power of its jets, the horsepower rating was simply one of many features to support this and other claims. Jacuzzi's materials set forth a wide array of features which concern not only the strength of the jets, but also comfort, aesthetics, and quality, covering such matters as color, size, shape, water flow, heat, temperature control, sound, extra design features, safety, durability, and ease of installation, maintenance, and service. Drawing all reasonable inferences in favor of the trial court's ruling, the court could properly infer that the horsepower rating of a whirlpool tub's motor is a technical matter that many purchasers might not consider to be an important factor when considering what tub to purchase. Even assuming Jacuzzi intentionally overstated the horsepower rating to augment sales and that some customers understood this to be an important feature (including the plaintiff, a plumber), the trial court could reasonably find that this was not shown to be a perception widely shared among the tub purchasers, and thus extensive individual proof would be required. That is, although the precise power of the motor may have been important to Safaie, the record supports a finding that the importance of this feature was too individualized to support an inference of common reliance, and accordingly individual issues of reliance predominated over common issues.
We reach the same conclusion assuming a presumption of reliance standard applies to the express warranty claim. Based on the evidence showing that the horsepower rating was merely listed as one technical feature among many features and that there are a wide variety of other features that can motivate a purchasing decision, the trial court could reasonably conclude that Jacuzzi would seek to present evidence to rebut a presumption of reliance for a significant number of purchasers. From this, the court could conclude the claim involved substantial individualized evidence making it unsuitable for class treatment.
Further, even assuming arguendo reliance is not an element of an express warranty claim, the trial court could reasonably conclude that individual issues predominated over common issues on the element of injury. Safaie does not point to anything in the record suggesting that a large number of consumers believed the jets in their tubs were not sufficiently powerful or that the price of their tubs was inflated based on the overstated horsepower rating. In the absence of such information, the court could reasonably infer that notwithstanding the horsepower overstatement many purchasers might be satisfied with the motor's performance and with the amount they paid for the tubs. Moreover, to the extent purchasers could claim nominal damages for breach of express warranty based on the horsepower misrepresentation, the trial court could reasonably conclude that there was no substantial benefit to the litigants and the court to warrant class certification solely to allow pursuit of such nominal damages. (See Blue Chip Stamps v. Superior Court (1976) 18 Cal.3d 381, 386; Linder v. Thrifty Oil Co., supra, 23 Cal.4th at p. 446.)
Absent a showing the case was amenable to a class wide evidentiary presentation, it was not an abuse of discretion for the trial court to conclude it was not suitable for class treatment because it would require an extensive examination of the circumstances of each class member's tub purchasing decision to determine Jacuzzi's liability based on the alleged horsepower overstatement.
We note this is not a case where the importance of the false representation and the harm inflicted on consumers are so readily apparent as to compel a finding that class members' claims of reliance, causation, and injury can be largely established by common proof. (Compare Occidental, supra, 18 Cal.3d at p. 363 [misrepresentation about costs of monthly maintenance fee in planned development was "manifestly a material factor" in condominium purchases].) Because the record supports the court's conclusion that individual issues predominated, it is not our role to disturb the ruling even if the record can also support a contrary conclusion based on other reasonable inferences. (Sav-On, supra, 34 Cal.4th at p. 331.)
C. The UCL Claim
The UCL prohibits false, unfair, misleading, or deceptive advertising. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 211 (Committee on Children's Television).) Relief under the UCL is generally limited to injunctive relief and restitution. (Kasky v. Nike, Inc., supra, 27 Cal.4th at p. 950; Buckland v. Threshold Enterprises, Ltd., supra, 155 Cal.App.4th at p. 812.)As originally enacted, the UCL authorized "any person acting for the interests of itself, its members, or the general public" to bring an action for relief. (Former Bus. & Prof. Code, §§ 17204, 17535.) Under this provision, a plaintiff had standing to bring a UCL action to obtain relief for others, even if the plaintiff did not personally suffer injury. (Mervyn's, supra, 39 Cal.4th at p. 228.) Further, the courts did not require that the plaintiff show individualized proof of actual deception, reliance, and damage to pursue a class action under the UCL based on misrepresentations; all that was required was that the plaintiff show that members of the public were likely to be deceived. (Fletcher, supra, 23 Cal.3d at p. 451; Committee on Children's Television, supra, 35 Cal.3d at p. 211; Massachusetts Mutual, supra, 97 Cal.App.4th at pp. 1288-1291; Bardin v. DaimlerChrysler Corp. (2006) 136 Cal.App.4th 1255, 1274 (Bardin).)
In 2004, the voters approved Proposition 64 which amended the UCL to require that a private plaintiff (as opposed to a government prosecutor) must have personally suffered injury as a result of the unfair practice to have standing to bring the action. (Historical & Statutory notes, 4D West's Ann. Bus. & Prof. Code (2008) foll. § 17204, p. 432; Mervyn's, supra, 39 Cal.4th at pp. 228, 232.) Business and Professions Code section 17204 now provides that UCL actions may be prosecuted by any person "who has suffered injury in fact and has lost money or property as a result of the unfair competition." The amendment—prompted by the conclusion that the UCL's broad grant of standing had encouraged frivolous unfair competition lawsuits—was designed to prohibit private attorneys from filing lawsuits where they had no client who had been actually injured, and to provide that only government prosecutors could file these actions on behalf of the general public. (Mervyn's, supra, 39 Cal.4th at p. 228.) In addition to the new injury in fact requirement, Proposition 64 added a provision stating that private plaintiffs could bring an action on behalf of others only if the case met the requirements of Code of Civil Procedure section 382, the statute generally governing class action lawsuits. (Bus. & Prof. Code, § 17203.)
Business and Professions Code section 17203 states: "Any person may pursue representative claims or relief on behalf of others only if the claimant meets the standing requirements of Section 17204 and complies with Section 382 of the Code of Civil Procedure, but these limitations do not apply to claims brought under this chapter by the Attorney General, or any district attorney, county counsel, city attorney, or city prosecutor in this state."
The 2004 amendment to Business and Professions Code section 17204 does not expressly address whether a plaintiff—who has standing because he or she suffered injury—can bring a class action suit based on the previously applicable likely-to-deceive-the-public standard, or whether the plaintiff is now required to also make a heightened showing for class members. As noted, several appellate courts have addressed various issues raised by the amendment, and these decisions are currently pending before the California Supreme Court. (In re Tobacco II Cases, supra, S147345; Pfizer, Inc. v. Superior Court, supra, S145775; see True v. American Honda Motor Co., Inc. (C.D.Cal. 2007) 520 F.Supp.2d 1175, [discussing split in authority as to whether actual reliance is element of UCL claim after Proposition 64, and concluding reliance may be shown by inference of common reliance].)
Prior to Proposition 64, a noninjured plaintiff could bring a UCL class action on behalf of others when a misrepresentation was likely to deceive the public. (Fletcher, supra, 23 Cal.3d at pp. 451, 454; Bardin, supra, 136 Cal.App.4th at p. 1274.) Thus, even before Proposition 64 the plaintiff had to show a type of injury to class members, although it was defined under the likely-to-deceive-the-public standard. After Proposition 64, only an injured plaintiff can bring a UCL class action. The unresolved question is what type of showing of "injury" to class members the plaintiff must make to bring a UCL claim on behalf of a class: i.e., is the plaintiff now required to present individualized proof that class members actually relied and were injured by the misrepresentation (which could make the case less suitable for class treatment), or can the plaintiff rely on the likely-to-deceive-the-public standard previously applicable to UCL claims or the inference of common reliance standard applicable to CLRA and other misrepresentation-based claims?
Safaie contends the latter two (more lenient) standards are applicable even after Proposition 64, and that the trial court failed to recognize this when granting the decertification motion. As stated earlier, we presume the trial court applied the inference of common reliance standard because this is a well-established means of showing class members' reliance. Assuming that this standard applies to UCL claims, the record supports a finding that the inference is not warranted here. To draw the inference of common reliance, there must be a showing that the misrepresentation was actually communicated to the class members, and that the misrepresentation was material to the transaction. (Mirkin, supra, 5 Cal.4th at p. 1095; Occidental, supra, 18 Cal.3d at p. 363; Massachusetts Mutual, supra, 97 Cal.App.4th at p. 1292.) Based on the showing that the horsepower rating was a technical feature and that it was merely one of many features presented to consumers, the trial court could reasonably reject a finding that it was shown to be a material factor to many tub purchasers so as to support a class wide inference of reliance permitting common proof of class members' claims.
As to the likely-to-deceive the public standard, even assuming it is still viable for UCL claims and that the trial court did not apply it given the uncertainty regarding the standards governing UCL claims (see People v. Diaz (1992) 3 Cal.4th 495; In re Bernadette C. (1982) 127 Cal.App.3d 618, 625), reversal is not required. Based on the amendments to the UCL incorporating class actions standards, the inquiry is essentially the same under both the inference of common reliance and likely-to-deceive-the-public standards—i.e., whether the misrepresentation was shown to be material to many purchasers. In Fletcher, the court set forth the principle that the UCL is designed to deter unfair business practices that are "likely to deceive" the victims even without a showing of actual deceit, and accordingly a trial court may certify a UCL case as a class action notwithstanding variations in proof because individualized proof of the class members' claims is not necessary. (Fletcher, supra, 23 Cal.3d at pp. 451, 454.) The Fletcher court emphasized, however, that although the trial court had the authority to certify the action because there was no need for individualized proof, it also had the discretion to deny class certification if it concluded class treatment was not appropriate for other reasons. (Id. at pp. 453-454.)
Proposition 64—by adding the requirement that private plaintiffs must comply with Code of Civil Procedure section 382 to bring an action on behalf of others—has expressly incorporated general class action standards into a UCL claim brought by a private plaintiff. (Bus. & Prof. Code, § 17203; see also Feitelberg v. Credit Suisse First Boston, LLC, supra, 134 Cal.App.4th at p. 1015 [noting applicability of Code of Civil Procedure section 382 to UCL class actions even before Proposition 64].) Considering the likely-to-deceive-the-public standard in light of class certification principles, it would not suffice that some members of the public (i.e., the plaintiff) may have been misled by the horsepower rating; rather class treatment requires a showing that a significant portion of tub purchasers were likely to have been misled. (See Lavie v. Proctor & Gamble Co. (2003) 105 Cal.App.4th 496, 508 [likely-to-deceive standard refers to effect on "a significant portion of the general consuming public or of targeted consumers"].) As stated, the record supports that the horsepower rating was a technical feature included among a variety of other technical, aesthetic, comfort, and quality-related features, and hence it was not shown to be of any particular significance to many tub purchasers. Absent this showing, the record supports the trial court's ruling denying class certification for the UCL claim.
Nothing in this opinion is meant to suggest a view on the merits of Safaie's lawsuit against Jacuzzi for the alleged overstatement of the horsepower rating. Our review is confined to a deferential evaluation of the trial court's conclusion the case should not be maintained as a class action because individual issues predominated. We hold the trial court did not abuse its discretion or otherwise err in decertifying the class.
DISPOSITION
The order is affirmed. Costs to Jacuzzi on appeal.
WE CONCUR: McDONALD, J., O'ROURKE, J.
Proposition 64 also amended the FLA to impose the injury in fact and class action standards. (Bus. & Prof. Code, § 17535; Mervyn's, supra, 39 Cal.4th at p. 229, fn. 2.)