Solorio v. Fresno Cmty. Hosp. & Med. Ctr.

Full title: CESAR SOLORIO, Plaintiff and Appellant, v. FRESNO COMMUNITY HOSPITAL AND…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jul 11, 2018

No. F073953 (Cal. Ct. App. Jul. 11, 2018)

Opinion

F073953

07-11-2018

CESAR SOLORIO, Plaintiff and Appellant, v. FRESNO COMMUNITY HOSPITAL AND MEDICAL CENTER, Defendant and Respondent.

Carpenter Law, Gretchen Carpenter; Law Office of Barry Kramer, and Barry L. Kramer, for Plaintiff and Appellant. Hooper, Lundy & Bookman, Amanda L. Hayes-Kirbreab and Sansan Lin for Defendant and Respondent.

FRANSON, J.

ORDER MODIFYING OPINION, DENYING REHEARING, AND DENYING REQUEST FOR PUBLICATION
[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the nonpublished opinion filed herein on July 11, 2018, be modified as follows:

At the end of the single-sentence paragraph on page 37, which reads, "Therefore, we conclude the class definition adopted in part III.C.2., ante, satisfies California's ascertainability requirement," add as footnote 14 the following footnote, which will require renumbering of all subsequent

¹⁴ The trial court's finding as to the ascertainability of the class for the entire lawsuit was based on the effort and expense of providing notice to the class members before the merits were resolved. The court's finding as to ascertainability does not bear directly or indirectly on certification of the issue class because, as discussed elsewhere, the notice requirements are different, both with respect to the timing and the manner of notice.

There is no change in the judgment.

Respondent's petition for rehearing is denied.

Appellate counsel's request for publication of the opinion filed in the above entitled matter on July 12, 2018, is hereby denied. In compliance with California Rules of Court, rule 8.1120(b), the Clerk/Executive Officer of this court shall transmit copies of the request for publication, the opinion, and this order to the Supreme Court.

/s/_________ FRANSON, J. WE CONCUR: DETJEN, Acting P.J. PEÑA, J. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CECG03165)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Y. Hamilton, Jr., Judge. Carpenter Law, Gretchen Carpenter; Law Office of Barry Kramer, and Barry L. Kramer, for Plaintiff and Appellant. Hooper, Lundy & Bookman, Amanda L. Hayes-Kirbreab and Sansan Lin for Defendant and Respondent.

-ooOoo-

This litigation involves the interpretation of a hospital's admissions contract and the rates charged to an uninsured emergency room patient under that contract. Similar billing disputes between uninsured emergency room patients and hospitals have arisen across the United States and have generated numerous reported decisions and journal articles. Many of those decisions, like this one, address a trial court's denial of a motion for class certification.

In this case, plaintiff Cesar Solorio signed an admissions contract stating he agreed to pay for emergency room services "in accordance with the regular rates and terms" of defendant Fresno Community Hospital and Medical Center (Medical Center). After receiving a bill for $7,812.03, plaintiff filed a class action complaint alleging the rates set forth in Medical Center's "charge description master"¹ and billed to self-pay patients are inflated and exorbitant. As to the interpretation of Medical Center's admissions contract, plaintiff seeks a declaratory judgment stating the contract contains an open price term and, pursuant to Civil Code section 1611, self-pay patients are obligated to pay no more than the reasonable value of the services provided. Plaintiff seeks further declaratory relief stating (1) the admissions contract does not permit Medical Center to bill self-pay emergency care patients its chargemaster rates and (2) Medical Center's billing practices are unconscionable and unreasonable.

1 "Charge description master" is defined by statute as "a uniform schedule of charges represented by the hospital as its gross billed charge for a given service or item, regardless of payer type." (Health & Saf. Code, § 1339.51, subd. (b)(1).) A charge description master is commonly referred to as a "chargemaster," which is the term used in this opinion. (E.g., Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, 561, fn. 7 (Howell).) Hospitals are required to make a copy of its chargemaster available, either by posting an electronic copy on its Web site or making a written or electronic copy available to the hospital location. (Health & Saf. Code, § 1339.51, subd. (a)(1).)

The trial court denied plaintiff's motion for class certification on the ground the proposed class could not be ascertained without undue effort and expense. On a disputed question of law about California's ascertainability requirement, we conclude that requirement applies to cases like this one where only declaratory relief is sought. We further conclude the trial court did not abuse its discretion in denying class certification as to the whole case. However, we also conclude the question of whether the admissions contract contains an open price term is certifiable as a class issue pursuant to California Rules of Court, rule 3.765(b). Our Supreme Court has recognized questions of contract interpretation involving form contracts are ideal for class adjudication. (La Sala v. American Sav. & Loan Assn. (1971) 5 Cal.3d 864, 877 (La Sala).) Here, notice need not be provided to class members until after the declaratory judgment is entered and the notice may be given by publication. At that time, former patients will be able to identify whether or not they meet the class definition—that is, whether they are self-pay patients who signed Medical Center's standard admissions contract and received treatment at Medical Center's emergency rooms during the specified period. The class issue of contract interpretation also satisfies the other requirements for certification—that is, predominance of common questions, typicality, adequacy of representation, and superiority. Accordingly, the class issue merits certification.

We therefore reverse the order denying the motion for class certification.

FACTS

Medical Center is a California nonprofit public benefit corporation that operates two medical care facilities with emergency rooms in Fresno County.² One of its facilities is Community Regional Medical Center in downtown Fresno. A 2014 report filed with the Office of Statewide Health Planning and Development reflected 8,000 emergency department encounters a month for Community Regional Medical Center and 5,000 emergency department encounters a month for the facility located in Clovis. Emergency Room Visit

2 Medical Center's status as a nonprofit is not a prominent factor in the class certification dispute, although the nonprofit status of a hospital was a significant factor in the initial wave of class action lawsuits challenging the prices charged to self-pay patients. (See In re Not-For-Profit Hosps./Uninsured Patients Litig. (J.P.M.L. 2004) 341 F.Supp.2d 1354, 1355-1356 [Judicial Panel on Multidistrict Litigation rejected motion to transfer and consolidate 28 cases]; see generally, Helvin, Caring for the Uninsured: Are Not-For-Profit Hospitals Doing Their Share? (2008) 8 Yale J. Health Pol'y, L. & Ethics 421; Nie, Nonprofit Hospital Billing of Uninsured Patients: Consumer-Based Class Actions Move to State Courts (2007) 4 Ind. Health L.Rev. 173; Cohen, The Controversy Over Hospital Charges to the Uninsured—No Villians, No Heroes (2006) 51 Vill. L.Rev. 95, 111 [in 2004, nationwide wave of class actions challenged hospitals' uninsured patient billing and collection practices].)

On September 22, 2015, plaintiff received emergency screening, stabilization, treatment and services at Community Regional Medical Center. Plaintiff was provided with a three-page form contract labeled "Conditions of Admission or Service." The form stated the patient agreed to pay for services "in accordance with the regular rates and terms of [Medical Center]." The parties dispute how this contractual language should be interpreted and applied.

Plaintiff was not covered by health insurance or a governmental health program. As a result, he was a self-pay patient for his emergency room visit. Medical Center billed plaintiff $7,812.03 for the treatment and services provided, which did not include charges by physicians and other nonhospital providers. The billing statement did not itemize the charges, but simply listed the balance owed as $7,812.03. Chargemaster Rates

Medical Center maintains a comprehensive list of charges that it refers to when preparing the bills sent to patients and payers. The list is referred to as a "charge description master" in California statute and is commonly known as a chargemaster. California law requires chargemasters to be made public. The declaration of Elizabeth Vargas, Medical Center's patient financial services corporate director, stated the chargemaster in effect during plaintiff's September 2015 visit contained over 60,000 different line items, each of which related to specific or bundled procedures, services or goods.³ Vargas stated that all of Medical Center's bills are sent at its regular chargemaster rates regardless of who the payer is. Notwithstanding the rates billed, Medical Center does not always enforce its chargemaster rates for a variety of reasons, such as when the patient qualifies for a charity care or other discount, or there is insurance that requires Medical Center to accept a lower amount in satisfaction of the billed charges.

3 In comparison, a law review article published a decade ago stated chargemasters contain from 12,000 to 45,000 items. (Hall & Schneider, Patients as Consumers: Courts, Contracts, and the New Medical Marketplace (2008) 106 Mich. L.Rev. 643, 656.) The hospital's chargemaster in Baptist Health v. Huston (2011) 2011 Ark. 210 contained 88,000 items.

PROCEEDINGS

In October 2015, plaintiff filed a class action complaint for declaratory judgment against Medical Center, and is the operative pleading in this appeal. The complaint contains a single cause of action labeled "Declaratory Judgment." Allegations

The complaint alleged Medical Center's form admissions contract failed to identify or describe what it meant by "the regular rates and terms of [Medical Center]" and did not identify any location where those rates could be found. The complaint further alleged that the pricing terms for self-pay patients (1) was inherently vague and ambiguous and (2) was the equivalent of an "open" pricing term, which applicable law implies is an agreement to pay the reasonable value of the items received.⁴ As to the rates in the chargemaster, the complaint alleged they were artificially inflated and "more than four times higher than the actual fees and charges" collected by Medical Center. Relief Requested

4 Civil Code section 1611 provides: "When a contract does not determine the amount of the consideration, nor the method by which it is to be ascertained, or when it leaves the amount thereof to the discretion of an interested party, the consideration must be so much money as the object of the contract is reasonably worth."

The relief requested in the complaint plays a role in framing some of the legal issues presented in this appeal. The parties disagree on how that relief should be characterized. We therefore describe it by quoting directly from the complaint. The prayer for relief makes a general request for the "declarations as prayed therein." Four specific declarations are requested in the complaint. Paragraph 39 of the complaint stated plaintiff and the members of the class are entitled to a declaration that Medical Center's contract (1) "contains an 'open price' term" and (2) "does not permit [Medical Center] to bill and demand payment from self-pay emergency care patients at its Chargemaster rates." Paragraph 40 sought a declaration that the patients "are liable to [Medical Center], under its Contract, for no more that the reasonable value of the treatment/services provided." Paragraph 38 of the complaint sought a broad declaration that Medical Center's "billing practices as they related to Class members are unfair, unconscionable, and/or unreasonable." The complaint also states the dispute over the proper interpretation of the contract can and should be made only once and should be equally applicable to all members of the class. Class Description

The complaint proposed a class of all individuals who, over the last four years, had one or more "eligible patient hospital visits" to an emergency room operated by Medical Center. It defined "eligible patient hospital visit" using four criteria: "(1) the patient was billed at the hospital's full Chargemaster rates; (2) there have been no full writeoffs, discounts or adjustments to the full Chargemaster billing under [Medical Center's] charity care policies; (3) the bill has not otherwise been waived or written off in full by Medical Center; and (4) no payments for the hospital visit have been made by other than the patient or the patient's representatives."

The complaint alleged there were questions of law and fact common to the proposed class. Those questions include whether self-pay emergency room patients were required to pay the chargemaster rates or, alternatively, no more than the reasonable value of the services provided. Motion to Certify Class

In November 2015, plaintiff filed an early motion for class certification. After taking plaintiff's deposition, Medical Center filed an opposition to the motion, which included supporting declarations from Vargas and two consultants. The opposition argued the proposed class was not readily ascertainable, common questions did not predominate, and a class action was not the superior method for resolving the dispute.

Plaintiff's April 2016 reply argued (1) the various requirements for class certification had been met and (2) Medical Center had offered no relevant evidence of difficulty, let alone prohibitive difficulty, in identifying class members. In addition, plaintiff's reply asserted, at a minimum, it would be appropriate to certify a class with respect to the issue of contract interpretation—specifically, whether the admissions contract contains an "open price" term that allows Medical Center to charge no more than the reasonable value of the services provided. Plaintiff cited California Rules of Court, rule 3.765(b) to support its request for certification as to this single issue of contract interpretation. Plaintiff's reply did not request an opportunity to conduct additional discovery, such as deposing Vargas.

On April 13, 2016, the trial court issued a four-page tentative ruling stating it intended "to deny the motion for lack of ascertainability." The tentative ruling stated "determining which patients fall into the proposed class definition would be unduly expensive and time-consuming, and the benefit from such efforts would be minimal." It also stated a declaration that Medical Center was limited to obtaining the reasonable value of the services provided was too abstract to be useful or enforceable without some way of determining what reasonable value actually meant in specific cases. The parties requested oral argument after the tentative was issued.

On April 14, 2016, a hearing was held on the certification motion. Before addressing the merits of the motion, counsel for plaintiff noted the tentative's analysis of ascertainability was based on Vargas's declaration and requested an opportunity to take Vargas's deposition. Plaintiff's counsel proposed putting the ruling on hold and allowing supplemental briefing after Vargas had been deposed. Counsel for Medical Center opposed plaintiff's request and represented to the court that no prior request to depose Vargas had been made. Counsel (1) described plaintiff's choice as to the earlier timing of his motion and the decision not to depose Vargas as strategic decisions and (2) opposed a change in strategy that would leave the motion open. The trial court then heard the parties' arguments as to the merits of the motion and took the matter under submission.

On April 18, 2016, the trial court issued an order adopting its tentative ruling and denying the motion on the ground the class was not ascertainable. In June 2016, plaintiff filed a notice of appeal. An "order terminating class claims is immediately appealable," even if individual claims persist. (In re Baycol Cases I and II (2011) 51 Cal.4th 751, 762.) Appellate Briefing

In November 2016, plaintiff filed his opening brief with this court. In February and April 2017, the respondent's brief and appellant's reply brief were filed. After this appeal was fully briefed, the Division One of the Fourth District filed two published decisions affirming the denial of class certification motions by self-pay patients and the First District filed an unpublished decision. (Hefczyc v. Rady Children's Hospital-San Diego (2017) 17 Cal.App.5th 518 (Hefczyc); Kendall v. Scripps Health (2017) 16 Cal.App.5th 553 (Kendall); Caudle v. Northbay Healthcare Group (Dec. 22, 2017, A148912) [nonpub. opn.].)⁵ These appeals were pursued by the same attorneys who represent plaintiff in this case. The decisions addressed some of the issues raised in the appellate briefing filed in this case and, consequently, have influenced the issues and arguments presented in this appeal.

5 The first of the three decisions published by Division One of the Fourth District was Hale v. Sharp Healthcare (2014) 232 Cal.App.4th 50 (Hale II). There, the court affirmed an order decertifying the class of uninsured patients.

Prior to oral argument, this court sent counsel a letter asking them to be prepared to discuss "whether the action should be maintained pursuant to California Rules of Court, rule 3.765(b) as a [federal] Rule 23(b)(2) equivalent class action limited to declaratory relief on a single contract interpretation issue—specifically, whether Medical Center's admissions contract contains an 'open price' term and, as a result, class members are liable to Medical Center for no more than the reasonable value of the treatment or services provided. (See Civ. Code, § 1611.)" This issue and its certification as a class issue had been discussed in plaintiff's appellant's reply brief. Oral Argument

At the beginning of oral argument, counsel for plaintiff stated the issue identified in the letter was exactly what plaintiff was seeking to accomplish in this case. Counsel stated, "We're asking for nothing more than a simple interpretation of a few lines of the defendant's conditions of admission contract." Counsel quoted those lines and stated the trial court would be asked to decide whether those lines provided an open price term and, pursuant to Code of Civil Procedure section 1060,⁶ set forth its interpretation in a declaratory judgment.

6 All further statutory references are to the Code of Civil Procedure, unless otherwise referenced.

Counsel Medical Center (1) argued the single issue of contract interpretation should not be certified as a class issue and (2) in response to this court's inquiry, accepted the opportunity to present supplemental briefing on the issue pursuant to Government Code section 68081.

Following oral argument, this court sent counsel a request for supplemental briefing on four separate questions. The first question was the same as set forth in the letter sent before oral argument. The second question asked for an appropriate class definition for the class issue described in the first question. The third question assumed an ascertainability requirement applied to a class seeking declaratory relief and asked what definition or test for "ascertainability" was proper in the context of the class issue, the class definition and the relief requested. The fourth question asked what appellate relief was appropriate, assuming certification of the class issue could not be ruled out based on the record present. Specifically, should the matter be remanded for the trial court to determine whether to certify the class issue or, alternatively, should this court direct the certification of the class issue?

To ensure Medical Center had an opportunity to respond to plaintiffs' proposed class definitions, we directed plaintiff to file a supplemental letter brief addressing the questions by April 23, 2018, and, with an extension, gave Medical Center until May 25, 2018, to file its supplemental letter brief. With the filing of Medical Center's supplemental letter brief on May 29, 2018, the matter was deemed submitted under California Rules of Court, rule 8.256(d)(1).

DISCUSSION

I. BACKGROUND

A. Chargemasters and Patient Billing

1. Rates Billed

The use of a chargemaster by healthcare providers to identify the amount billed to patients is described in a recent journal article as follows:

"The chargemaster is a file maintained by hospitals that lists, by code, everything a hospital might charge for and the 'standard' price for that item. While a 'typical hospital bill contains between ten to fifty items, the chargemaster contains an average of 25,000 [different] items.' Items are listed by code numbers, not by procedure name, diagnosis, or any other descriptor that would be recognizable to a patient. Hospitals are permitted to change their chargemaster rates at any time without notice. And in most jurisdictions [outside California], there is no requirement that the chargemaster be posted publicly or otherwise made available to patients. The chargemaster does not reflect the rates negotiated by insurance companies. On average, the chargemaster rates are considerably higher than the rates charged to insureds, but there is much variability." (Epstein, Price Transparency and Incomplete Contracts in Health Care (2017) 67 Emory L.J. 1, 20-21.)

An early Pennsylvania case that illustrates how the rates in a hospital's chargemaster compared to the payments actually received. (Temple University Hospital, Inc. v. Healthcare Management Alternatives, Inc. (Pa.Super.Ct. 2003) 832 A.2d 501.) The evidence presented showed (1) the hospital received more than 80 percent of its full chargemaster rates only six percent of the time and (2) its chargemaster rates for 1995 and 1996 "were approximately 300% of its actual costs." (Id. at pp. 508-509.)

The California Supreme Court has discussed chargemaster rates and quoted a source that referred to the rates as inflated. (Howell, supra, 52 Cal.4th at p. 561.) As to the reasonableness and variability of chargemaster rates for particular services, the court stated:

"We do not suggest hospital bills always exceed the reasonable value of the services provided. Chargemaster prices for a given service can vary tremendously, sometimes by a factor of five or more, from hospital to hospital in California. (See [Reinhardt, The Pricing of U.S. Hospital Services: Chaos Behind a Veil of Secrecy (2006) 25 Health Affairs 57,] 58, exhibit No. 1 [prices for a chest x-ray at selected Cal. hospitals, showing low of around $200 and high of around $1,500].) With so much variation, making any broad generalization about the relationship between the value or cost of medical services and the amounts providers bill for them—other than that the relationship is not always a close one—would be perilous." (Howell, supra, 52 Cal.4th at pp. 561-562.)

This statement suggests that the prices listed in a hospital's chargemaster are not per se unreasonable and the determination of the reasonableness of a rate listed in a particular hospital's chargemaster requires a specific inquiry for each item.

2. Contractual Reference to Chargemaster

Here, Medical Center's admissions contract states the patient shall pay Medical Center for hospital services "in accordance with the regular rates and terms of [Medical Center]." The admissions contract does not mention the chargemaster. This approach to drafting is common. "While some agreements explicitly incorporate by reference the chargemaster, others use vaguer language that merely obligates patients to pay the account or the charges, without further specification." (Epstein, Price Transparency and Incomplete Contracts in Health Care, supra, 67 Emory L.J. at p. 21.)

The published California cases provide examples of the different approaches to drafting. The admissions agreements used by the hospitals in Hefczyc and Hale II, like Medical Center's, refer to the "'regular rates and terms'" of the hospital. (Hefczyc, supra, 17 Cal.App.5th at p. 523; Hale II, supra, 232 Cal.App.4th at p. 54.) In contrast, the admissions agreement in Kendall, supra, 16 Cal.App.5th 553, stated the patient agreed "'to pay the Facility's billed charges as contained in the Facility's Charge Description Master.'" (Id. at p. 559, italics omitted.) Similarly, the agreement in Moran v. Prime Healthcare Management, Inc. (2016) 3 Cal.App.5th 1131 (Moran) stated the patient was responsible "'for all reasonable charges, listed in the hospital charge description master.'" (Id. at p. 1138.)

B. Class Certification in California—Basic Principles

1. Section 382

Certification of a class action in California begins with the text of section 382,⁷ which was enacted in 1872. Section 382 authorizes a class action "when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court." The statute operates as an exception to the general rule of compulsory joinder of all interested parties, is based on the doctrine of virtual representation, rests upon considerations of necessity and convenience, and was adopted to prevent a failure of justice. (Weaver v. Pasadena Tournament of Roses Assn. (1948) 32 Cal.2d 833, 837 (Weaver).)

7 All further statutory references are to the Code of Civil Procedure, unless otherwise referenced.

Section 382 does not mention ascertainability or provide a procedural framework for class actions. Consequently, our Supreme Court has set forth the specific requirements for certification of a class. (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021 (Brinker).) The moving party "must demonstrate the existence of [1] an ascertainable and [2] sufficiently numerous class, [3] a well-defined community of interest, and [4] substantial benefits from certification that render proceeding as a class superior to the alternatives." (Ibid.) In turn, community of interest is comprised of three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class. (Ibid.) When these three factors are substituted into the list of what a moving party must demonstrate, there are a total of six criteria for class certification identified by our Supreme Court. These criteria are summarized as (1) ascertainability, (2) numerosity, (3) predominance of common questions, (4) typicality, (5) adequacy of representation, and (6) superiority.

In 1981, our Supreme Court reiterated how California courts should approach the absence of detailed legislative guidance on class issues: "It is well established that in the absence of relevant state precedents our trial courts are urged to follow the procedures prescribed in rule 23 of the Federal Rules of Civil Procedure for conducting class actions." (Green v. Obledo (1981) 29 Cal.3d 126, 145-146.) The absence of a procedural framework for California class actions was addressed in 2002 with the adoption of California Rules of Court, rules 3.760 through 3.771. These rules govern some aspects of the management of class actions in California courts. (Los Angeles Gay & Lesbian Center v. Superior Court (2011) 194 Cal.App.4th 288, 302.) For example, California Rules of Court, rule 3.766 addresses providing notice to class members. Where the rules have left gaps and California class action law lacks precedent, California courts continue to seek guidance from Rule 23 of the Federal Rules of Civil Procedure (28 U.S.C.) (Rule 23) and federal case law. (Los Angeles Gay & Lesbian Center, supra, at p. 301, fn. 7.)

2. Rule 23, Express and Implicit Requirements

Rule 23 provides standards for class certification in federal court. It is the source of express requirements applicable to all federal class actions and implicit requirements. (See Herrmann & Alden, Drug and Device Product Liability Litigation Strategy (2012) pp. 105-119 (Litigation Strategy).) Rule 23(b) authorizes three categories of class action, each with its own particular requirements. (Id. at pp. 119-131.)

The four express requirements in subdivision (a) of Rule 23, which apply to all categories of federal class actions, are: (1) numerosity (the class is so numerous as to make joinder impractical); (2) commonality (questions of law or fact are common to the class); (3) typicality (the class representative's claims are typical of the class); and (4) adequacy of representation (the representative parties are able to fairly and adequately protect the interests of the class). (Litigation Strategy, supra, at pp. 111-119.)

The implicit prerequisites to federal class certification include ascertainability, which is sometimes referred to as definiteness. (1 Newberg on Class Actions (5th ed. 2011) § 3:2.) Some federal courts infer the term "class" used in Rule 23(a) means a definite or ascertainable class. (Ibid.) Others construe the directive in Rule 23(c)(1)(B) that "[a]n order certifying a class action must define the class" as requiring a well-defined class. (Litigation Strategy, supra, at p. 106.) "Generally, a well-defined class must be one that is 'identifiable.'" (Ibid.)

3. Rule 23(b) Categories of Class Action

Three categories of federal class actions are authorized by subdivision (b) of Rule 23. Generally, a party seeking class certification must comply with the four express requirements in Rule 23(a) and fit the case into one of the categories of Rule 23(b). (2 Newberg on Class Actions, supra, § 4:2.)

Rule 23(b)(1) aims at preventing prejudice that might arise from multiple suits litigating the same subject matter. Class certification is appropriate if the prosecution of separate claims creates a risk of (1) adjudications that establish incompatible standards of conduct for the defendant or (2) adjudications that, as a practical matter, dispose of, impair, or impede the claims of perspective class members who were not present in the litigation. (2 Newberg on Class Actions, supra, § 4:2; cf. § 389, subd. (a)(2)(i) [compulsory joinder factors].)

Rule 23(b)(2) is relied upon by the plaintiffs. It addresses classes seeking injunctive and declaratory relief and is discussed in the next section of this opinion.

Rule 23(b)(3) class actions are money damages class actions and probably the most common. A Rule 23(b)(3) class action is appropriate if "the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." These two requirements correspond to our Supreme Court's requirements that there are "predominant common questions of law or fact" (Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470 (Dart)) and "substantial benefits from certification that render proceeding as a class superior to the alternatives" (Brinker, supra, 53 Cal.4th at p. 1021). Our Supreme Court's criteria for class certification (with the exception of ascertainability) are a combination of the four requirements of Rule 23(a) and the two requirements of Rule 23(b)(3).

4. Rule 23(b)(2) Class Actions

Rule 23(b)(2) class actions are appropriate where "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." (Rule 23, subd. (b)(2).)⁸ "By its terms, a Rule 23(b)(2) class is one for declaratory or injunctive relief, not damages." (Litigation Strategy, supra, at p. 121.) The text of the rule establishes two basic requirements. First, the defendant must have acted, or refused to act, on grounds generally applicable to all class members. Second, the requested relief must be final, injunctive or declaratory, and appropriate to the class as a whole. (2 Newberg on Class Actions, supra, §§ 4:26, 4:28, 4:29.)

8 Applying this text to the facts of this case, Medical Center's act of interpreting "regular rates" as unambiguously referring to its chargemaster rates is an act that applies generally to the class and declaratory relief as to the meaning of the contractual term "regular rates" would relate to the class as a whole.

The Advisory Committee Notes to Rule 23(b)(2) explains this category of class actions as follows:

"This subdivision is intended to reach situations where a party has taken action or refused to take action with respect to a class, and final relief of an injunctive nature or of a corresponding declaratory nature, settling the legality of the behavior with respect to the class as a whole, is appropriate. Declaratory relief "corresponds" to injunctive relief when as a practical matter it affords injunctive relief or serves as a basis for later injunctive relief. The subdivision does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages. Action or inaction is directed to a class within the meaning of this subdivision even if it has taken effect or is threatened only as to one or a few members of the class, provided it is based on grounds which have general application to the class.

"Illustrative are various actions in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration. [Citations.] Subdivision (b)(2) is not limited to civil-rights cases. Thus an action looking to specific or declaratory relief could be brought by a numerous class of purchasers, say retailers of a given description, against a seller alleged to have undertaken to sell to that class at prices higher than those set for other purchasers, say retailers of another description, when the applicable law forbids such a pricing differential...." (Rule 23(b)(2), Advisory Com. Notes (1966 Amendment); see Amendments to Rules of Civil Procedure (1966) 39 F.R.D. 69, 102.)⁹

9 Here, plaintiff does not allege price discrimination in violation of antitrust laws, but seeks to represent "a numerous class of purchasers ... against a seller alleged to have undertaken to sell [emergency room services] to that class at prices higher than those set for other purchasers ... of another description ...." (Rule 23(b)(2), Advisory Com. Notes (1966 Amendment); see Amendments to Rules of Civil Procedure, supra, 39 F.R.D. at p. 102.)

Rule 23(b)(2) class actions have been certified in (1) civil rights cases maintained against public and private defendants, (2) constitutional challenges to government action, (3) antitrust cases, (4) environmental matters, (5) Employee Retirement Income Security Act of 1974 (ERISA) lawsuits, (6) medical monitoring cases, and (7) contract interpretation matters. (2 Newberg on Class Actions, supra, §§ 4:40, 4:41; see Gooch v. Life Investors Ins. Co. of America (6th Cir. 2012) 672 F.3d 402, 427-428 [Rule 23(b)(2) certification appropriate where declaratory judgment will provide uniform interpretation of contract] (Gooch); Kleiner v. First National Bank of Atlanta (N.D.Ga. 1983) 97 F.R.D. 683, 692 [breach of contract cases are routinely certified as class actions; list of 10 such cases].¹⁰

10 Medical Center contends "[c]lass action brought under Rule 23(b) require some sort of legal wrong—such as a violation of a statute, not simply interpretation of a private contract." This contention is not accurate, and we reject it based on the many cases holding that questions of contract interpretation are appropriate for class actions under Rule 23(b)(2) or Rule 23(b)(3) and California's declaratory relief statute, section 1060, which encompasses questions of contract interpretation.

5. Contract Interpretation Class Actions

In this case, plaintiffs seek certification of the equivalent of a Rule 23(b)(2) class for the purpose of obtaining declaratory relief addressing the meaning of Medical Center's form admissions contract. The use of class adjudication to address questions of contract interpretation has been addressed by many courts. For instance, the California Supreme Court has stated: "Controversies involving widely used contracts of adhesion present ideal cases for class adjudication; the contracts are uniform, the same principles of interpretation apply to each contract, and all members of the class will share a common interest in the interpretation of an agreement to which each is a party." (La Sala, supra, 5 Cal.3d at p. 877.)

In Steinberg v. Nationwide Mut. Ins. Co. (E.D.N.Y. 2004) 224 F.R.D. 67 (Steinberg), a case involving a dispute over the meaning of an automobile insurance policy, the district court stated "claims arising from interpretations of a form contract appear to present the classic case for treatment as a class action." (Id. at p. 74.) The plaintiff sought damages and injunctive relief prohibiting the insurer's practice of deducting "'betterment charges'" when paying for replacement parts. (Id. at p. 70.) The district court granted the motion for class certification, concluding the plaintiff had successfully fulfilled the four express requirements of Rule 23(a) and the two requirements of Rule 23(b)(3). (Steinberg, supra, at pp. 72-80.)

In Smilow v. Southwestern Bell Mobile Systems, Inc. (1st Cir. 2003) 323 F.3d 32 (Smilow), a customer of a wireless telecommunications provider brought a class action asserting claims for breach of contract and violations of state and federal statutes. The putative class members were charged for incoming calls despite having signed a standard form contract that purportedly guaranteed free incoming call service. (Id. at p. 34.) The First Circuit reversed the district court's decertification order, stating: "Overall, we find that common issues of law and fact predominate here. The case turns on interpretation of the form contract, executed by all class members and defendant." (Id. at p. 42.) The court rejected the defendant's argument that decertification was justified because of the need for individual damages determinations, which the court concluded could be computed using a computer program. (Ibid.)

Other courts have certified class action in cases involving contract interpretation and Rule 23(b)(2) classes or state equivalents. (Gooch, supra, 672 F.3d 402 [cancer insurance policy]; DeCesare v. Lincoln Benefit Life Co. (R.I. 2004) 852 A.2d 474 [annuity contract]; Hamilton v. Ohio Savings Bank (1998) 82 Ohio St.3d 67, [mortgage loans]; Bower v. Bunker Hill Co. (E.D.Wash. 1986) 114 F.R.D. 587 [retirement benefits plan].)

6. Issue Classes

California Rules of Court, rule 3.765(b) provides in full: "When appropriate, an action may be maintained as a class action limited to particular issues. A class may be divided into subclasses." California's rule is similar to Rule 23(c)(4) which states: "When appropriate, an action may be brought or maintained as a class action with respect to particular issues." (Cal. Rules of Court, rule 3.765(b).) Classes certified pursuant to Rule 23(c)(4) are referred to as "'issue classes.'" (2 Newberg on Class Actions, supra, § 4:89.) Issue classes allow courts to realize the advantages and efficiencies of classwide adjudication of common issues when there exist individual issues that must be addressed separately. (Ibid.)

C. Class Actions by Self-Pay Patients Challenging Hospital Bills

A number of published California judicial decisions involve lawsuits commenced by an uninsured patient to challenge the prices charged by a health care provider. (E.g., Moran, supra, 3 Cal.App.5th at p. 1137 [judgment of dismissal reversed; plaintiff had standing to claim amounts charged to uninsured patients was unconscionable].)¹¹ Here, we summarize the California decisions addressing whether such lawsuits should proceed as a class action.

11 The patient had received medical treatment at a hospital's emergency room and challenged the hospital's variable pricing practice by alleging causes of action for declaratory relief and violations of the unfair competition law (UCL; Bus. & Prof. Code, § 17200 et seq.) and the Consumer Legal Remedies Act (CLRA; Civ. Code, § 1750 et seq.). (Moran, supra, 3 Cal.App.5th at p. 1137.)

The three published decisions of the Fourth District are described here in chronological order to illustrate how the arguments presented by plaintiff's counsel have evolved over time. The oldest decision affirmed an order decertifying the class. (Hale II, supra, 232 Cal.App.4th 50.) The two most recent decisions affirmed the denial of class certification motions. (Hefczyc, supra, 17 Cal.App.5th 518; Kendall, supra, 16 Cal.App.5th 553.) A trend is the decreasing role of damages and the narrowing of the issues for which declaratory relief is sought.

In Hale II, an uninsured patient (1) alleged a hospital unfairly charged her and other uninsured patients more for emergency services than the fees accepted from patients covered by private insurance or government plans and (2) sought damages and declaratory relief. (Hale II, supra, 232 Cal.App.4th at p. 53.) The trial court certified the class and, after discovery, the hospital moved to decertify the class. (Ibid.) The trial court granted decertification based on its determinations that (1) there were "no reasonable means to ascertain the members of the class without individual inquiries of more than 120,000 patient records" and (2) individualized issues predominated, particularly in dealing with each patient's recovery of damages. (Ibid.) The appellate court affirmed the order decertifying the class, concluding the trial court did not abuse its discretion as to the lack of ascertainability or the predominance of individual issues. (Id. at pp. 61, 67.)

In October 2017, about six months after appellant's reply brief was filed in this appeal, the Fourth District issued its decision in Kendall, supra, 16 Cal.App.5th 553. In Kendall, a self-pay emergency room patient asserted claims for damages under the UCL and CLRA. (Kendall, supra, at pp. 556-557.) The patient also requested declaratory relief as to the meaning of the contract provision under which self-pay patients were billed at the hospital's chargemaster rates. (Id. at p. 557.) The trial court denied the patient's motion for class certification, concluding the patient had not shown (1) common issues of law and fact predominated and (2) there were objectively feasible ways of identifying class members. (Id. at p. 558.) In affirming the order, the appellate court concluded the trial court properly applied these two requirements. (Id. at pp. 574, 575.)

In Hefczyc, the guarantor of a self-pay patient's obligation to a hospital for emergency room care sought declaratory relief establishing the hospital's form contract limited the hospital to charging only the reasonable value of the emergency room care provided. (Hefczyc, supra, 17 Cal.App.5th at p. 522.) The plaintiff alleged the hospital's chargemaster rates were grossly excessive and unreasonable. (Id. at p. 524.) Unlike the patients in Kendall and Hale II, the plaintiff did not seek damages. The trial court denied the plaintiff's motion for class certification on the grounds the class was not ascertainable, common issues did not predominate, and a class action was not a superior means of proceeding. (Hefczyc, supra, at p. 522.) The Fourth District concluded the trial court correctly decided the requirements of ascertainability, predominance and superiority applied when only declaratory relief was sought by the class representative. (Id. at p. 533.) It also concluded the trial court did not abuse its discretion in determining the plaintiff had not established those requirements were satisfied. (Id. at p. 536.)

To summarize, each of the three published decisions affirmed the decision of the trial court that the lawsuit challenging the hospital's billing should not proceed as a class action. II. CERTIFYING THE LAWSUIT AS A CLASS ACTION

Two levels of issues are presented in this appeal. Here, we address the first level, which involves certification of the entire lawsuit as a class action. The second level, which is reached only if the trial court properly denied certification of the entire action, involves whether a question of contract interpretation should be certified under California Rules of Court, rule 3.765(b) as a class issue.

A. Standard of Review

In California, appellate courts review of an order granting or denying a request for class certification for an abuse of discretion. (Brinker, supra, 53 Cal.4th at p. 1022.) Trial courts are given discretion in such matters because they are better situated to evaluate the efficiencies and practicalities of permitting group action. (Ibid.) A certification order generally will be disturbed only if (1) it is unsupported by substantial evidence, (2) it rests on improper criteria, or (3) it rests on erroneous legal assumptions. (Ibid.; see Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712 [abuse of discretion is not a unified standard, but varies according to type of ruling under review].) In this appeal, plaintiff's contention that the ascertainability requirement does not apply to a declaratory relief action presents a question of law subject to independent review.

B. Ascertainability

1. The Requirement Applies to Declaratory Relief Actions

Plaintiff contends the trial court committed legal error when it decided the ascertainability requirement applied to his proposed class. Plaintiff urges us to adopt a rule of law stating the ascertainability requirement does not apply to California class actions that are the equivalents of a Rule 23(b)(2) class—that is, a class seeking only declaratory or injunctive relief. Plaintiff contends federal courts do not require ascertainability for certification of a Rule 23(b)(2) class and cites Cole v. City of Memphis (6th Cir. 2016) 839 F.3d 530 and Shelton v. Bledsoe (3d Cir. 2015) 775 F.3d 554 for support. In Shelton, the court stated: "The nature of Rule 23(b)(2) actions, the Advisory Committee's note on (b)(2) actions, and the practice of many of other federal courts all lead us to conclude that ascertainability is not a requirement for certification of a (b)(2) class seeking only injunctive and declaratory relief, such as the putative class here." (Shelton, supra, at p. 563.) In November 2017, the Fourth District considered plaintiff's argument and rejected it, stating:

"Even when the plaintiff seeks solely declaratory or injunctive relief, California case law follows the well-established requirements that our Supreme Court has consistently stated, namely, (as relevant here) that the plaintiff must establish that (1) the class is ascertainable; (2) common questions predominate; and (3) a class action would provide substantial benefits, making it superior to other procedures for resolving the controversy." (Hefczyc, supra, 17 Cal.App.5th at pp. 535-536.)

We also reject plaintiff's argument that the ascertainability requirement does not apply in the context of this case—that is, a dispute over the meaning of a form contract under which a variety of services were provided to potential class members.¹² Therefore, we conclude the requirements for class certification listed by our Supreme Court in Brinker apply to the declaratory relief action presented in this appeal. (See pt. I.B.1., ante.)

12 We express no opinion as to whether ascertainability also is required when only injunctive or declaratory relief is sought in a civil rights cases. (See Rule 23(b)(2), Advisory Com. Notes (1966 Amendment), Amendments to Rules of Civil Procedure, supra, 39 F.R.D. at p. 102 [civil rights actions illustrate the use of a Rule 23(b)(2) class in situations where the class members are incapable of specific enumeration].)

2. Definition or Test for Ascertainability

The next disputed legal question is the proper definition or test of ascertainability—a question addressed in the supplemental briefing. Medical Center contends "the only appropriate test of ascertainability for any class certified under Section 382, is whether the plaintiff supplies a reasonable means to readily identify potential class members without placing an undue burden on the opposing party, and the class is defined in terms of objective characteristics and common transactional facts sufficient to allow a class member to identify himself or herself as having a right to recover based on that definition." Plaintiff argues that, in the context of this case, the test for ascertainability should simply ask whether the class is stated in terms of objective characteristics and common transactional facts. In plaintiff's view, it is not necessary for class members to be able to self-identify because class members need not be given the right to opt out of the class and there is no other reason to require notice of the class action to class members.

We conclude the principles set forth by the Fourth District in Hefczyc, with slight refinements to take into account the nature of plaintiff's declaratory relief cause of action, provide the proper test for whether a particular class is ascertainable. These principles, which are tied to the purpose of the ascertainability requirement, are as follows.

"'A class is ascertainable if it identifies a group of unnamed plaintiffs by describing a set of common characteristics sufficient to allow a member of that group to identify himself or herself as having a right to recover based on the description.' [Citations.] 'Ascertainability is achieved "by defining the class in terms of objective characteristics and common transactional facts making the ultimate identification of class members possible when that identification becomes necessary."' [Citations.] 'Whether a class is ascertainable is determined by examining (1) the class definition, (2) the size of the class, and (3) the means available for identifying class members' at the remedial stage." (Aguirre v. Amscan Holdings, Inc. (2015) 234 Cal.App.4th 1290, 1299-1300 (Aguirre).)

"'While often it is said that "[c]lass members are 'ascertainable' where they may be readily identified without unreasonable expense or time by reference to official records" [citations], that statement must be considered in light of the purpose of the ascertainability requirement.' [Citation.] 'Ascertainability is required in order to give notice to putative class members as to whom the judgment in the action will be res judicata.' [Citations.] The goal in defining an ascertainable class 'is to use terminology that will convey "sufficient meaning to enable persons hearing it to determine whether they are members of the class plaintiffs wish to represent." [Citation.] "... Otherwise, it is not possible to give adequate notice to class members or to determine after the litigation has concluded who is barred from relitigating."'" (Aguirre, supra, 234 Cal.App.4th at pp. 1300-1301.) "'Class certification is properly denied for lack of ascertainability when the proposed definition is overbroad and the plaintiff offers no means by which only those class members who have claims can be identified from those who should not be included in the class.'" (Hale II, supra, 232 Cal.App.4th at pp. 58-59; see Hefczyc, supra, 17 Cal.App.5th at pp. 536-537.)

An important inquiry in applying the foregoing principles to a specific case is whether the putative class members will be given notice of the class action before the merits of the claims are resolved. Such notice is an essential procedural step when putative class members are allowed to opt out of the class.

Here, plaintiff's motion for class certification stated: "Pursuant to Cal. Rules of Court, Rule 3.766, Plaintiff submits that, while not necessary, notice is appropriate and should be given to the Class in this case." The motion argued the trial court "should exercise its discretion to order that notice be sent to the Class" and requested the court set a hearing to address the content, form and manner of notice.

Based on these statements, the trial court stated, "here plaintiff actually seeks to give notice to the members of the class. [Citation.] Thus, it is first necessary to determine who the members of the proposed class will be before giving them notice. The only way to do so is through an extremely timeconsuming and expensive manual search of hundreds of thousands of patient records." Accordingly, the court did not address proceeding without giving notice, which it might have done under the theory it was not necessary in a declaratory relief action that was the equivalent of a Rule 23(b)(2) class action. (See Bell v. American Title Ins. Co. (1991) 226 Cal.App.3d 1589, 1604 ["federal courts have determined that when classes are certified under rule 23(b)(1) or (b)(2), there is no right to opt out. [Citations.] California follows the same rule."] (Bell).)

The principles governing ascertainability require identification of class members "when that identification becomes necessary." (Hicks v. Kaufman and Broad Home Corp. (2001) 89 Cal.App.4th 908, 915 (Hicks).) Therefore, when a plaintiff requests that the class be given notice, identification becomes necessary before that notice can be given. Here, plaintiff's request for notice leads us to conclude the trial court did not abuse its discretion in addressing ascertainability at the time of the motion, which was shortly before the requested notice would have been given.

In summary, the trial court did not commit legal error when it determined the ascertainability requirement applied to this declaratory relief action or when it inquired into the ascertainability of the class at the time of the motion. The next question addressed is whether substantial evidence supports the trial court's finding that the class was not ascertainable.

C. Substantial Evidence Supports the Ascertainability Finding

1. Description of the Class

Typically, an analysis of whether a proposed class is ascertainable begins with the definition of the class set forth in the certification motion. Plaintiff's motion requested the certification of the following class:

"All individuals who, from October 14, 2011 to the date of class certification, had one or more 'eligible patient hospital visits' to a [Medical Center] Emergency Department.

"For purposes of this class definition, an 'eligible patient hospital visit' is defined as one for which (1) the patient was billed at the hospital's full Chargemaster rates; (2) there have been no full writeoffs, discounts or adjustments to the full Chargemaster billing under [Medical Center's] charity care policies; (3) the bill has not otherwise been waived or written off in full by [Medical Center]; and (4) no payments for the hospital visit have been made by other than the patient or the patient's representatives.

"Excluded from the Class are any officers or directors of [Medical Center], together with the legal representatives, heirs, successors, or assigns of [Medical Center], and any judicial officer assigned to this matter and his or her immediate family." (Fn. omitted.)

The trial court found "determining which patients fall into the proposed class definition would be unduly expensive and time-consuming, and the benefit from such efforts would be minimal." As a result, the court denied the motion for lack of ascertainability.

2. Class Criteria Not in Dispute

The definition of the class specifies a timeframe for identifying patients and the location where the patient obtained services—namely, one of Medical Center's two emergency rooms. In addition, the first enumerated criterion in the class definition refers to patients billed at Medical Center's full chargemaster rates.

These components of the class definition are straightforward and need not be discussed at length. The criterion involving the rates billed to the patients cannot increase the burden of ascertaining the class members because Vargas's declaration stated all bills are sent at Medical Center's regular chargemaster rates regardless of who the payer is. Thus, limiting the class to patients "billed at the hospital's full Chargemaster rates" has no practical effect because it does not eliminate any patients who received emergency care during the relevant period.

3. No Discounts, Adjustments, Full Writeoffs or Waivers

The second and third enumerated criteria in the class definition refer to various ways a patient's obligation might have been reduced (i.e., discounts, adjustments, full writeoffs and waived bills) from the full chargemaster rates. If such a reduction was made, the patient receiving it would be excluded from the class.

Paragraph 22 of Vargas's declaration addressed the difficulty of determining whether a particular patient's bill has been discounted. As backgournd on the types of reductions available to patients, her declaration stated that notices of Medical Center's financial assistance program are posted in the emergency room, included on the statement sent to the patient, and posted on Medical Center's web site. The policy provides for discounts to uninsured patients, and determining eligibility for the discounts can include an inquiry into the patient's particular circumstances. Vargas provided an example by stating patients "earning less than 400% of the Federal Poverty Level who complete certain requisites are entitled to a discount off of full billed Charge Master rates, and may get a further discount." Vargas also stated Medical Center had financial assistance policies that permit patients to get substantial discounts and concluded:

"An individual review of hundreds to thousands of documents would need to be reviewed and manually evaluated to determine the specific circumstances behind every patient who presented to [Medical Center's] emergency department. This would be extremely burdensome for [Medical Center] and would take hundreds to thousands of hours to review individual

accounts. Because information in [Medical Center's] electronic systems is fluid, any individual review that is done would have to be updated as new information is obtained, making the task that Plaintiff asks [Medical Center] to completely insurmountable."

The last sentence quoted demonstrates that a patient might fall within the class definition on a particular date and, sometime later, obtain a discount or an adjustment and thereby lose his or her eligibility for the class.

Vargas's declaration also described Medical Center's record keeping systems, which include "multiple integrated modules of EPIC to manage its patient financial services" and an imaging system known as "HPF-Horizonal Patient Folders" where images of documents are scanned and stored electronically. Vargas stated Medical Center "also maintains an electronic medical records system in addition to EPIC and HPF." Medical Center "tracks patient accounts with a financial class identifier" and uses the identifier to generate bills to patients. Examples of identifiers provided by Vargas are "self-pay" and "self-pay after insurance." The particular identifier used for a patient can change over time as additional information is acquired.

Vargas's declaration asserted EPIC does not distinguish among all of the sources and amounts of payments received. As a result, a manual review would be necessary to determine the source of any amount received—that is, whether the amount was paid by the patient or from another source such as insurance or other third party. After describing the complexities of Medical Center's records relating to patient billing and payments, Vargas concluded: "There is no way to generate a list of patients meeting Plaintiff's class definition with a 'push of a button' and minimal effort."

We conclude the statements contained in Vargas's declaration, while not overwhelming in their clarity or completeness, constitute substantial evidence supporting the trial court's finding of fact that it would be unduly burdensome to identify the patients covered by the class definition for the purpose of giving notice to the class. Accordingly, plaintiff has not demonstrated the trial court committed factual error in determining the class lacked ascertainability.

Plaintiff takes a different view of the evidence. His reply brief argues it is administratively feasible to identify class members. Plaintiff contends "[t]here is absolutely no reason [Medical Center] cannot use its billing and payment databases to determine who are members of the Class, regardless of what it has listed as the patient's 'financial class' in its records." This contention overlooks the reasons—time and expense—stated by the trial court when it found reviewing the databases to make an individualized determination as to a patient's class eligibility would be unduly burdensome. Thus, plaintiff's argument requests this court to reweigh the evidence relating to that burden, which is contrary to the substantial evidence standard of review applicable to the trial court's findings. (See Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660 [power of appellate court under the substantial evidence standard].)

D. Denial of Request to Depose Vargas

Plaintiff contends the trial court abused its discretion in denying his request to depose Vargas and resubmit his motion for class certification. In response, Medical Center contends an abuse of discretion is not established when the party makes a last minute request for a continuance and deposition during the hearing on a class certification motion, after the court has issued its tentative ruling. In Medical Center's view, a party who has made no attempt to depose a witness before learning his class certification strategy has failed has not shown he was deprived of an opportunity to depose the witness.

We recognize a party is entitled to discovery necessary to support class certification "before the class is certified." (Bartold v. Glendale Federal Bank (2000) 81 Cal.App.4th 816, 836 [trial court abused discretion in denying plaintiff's discovery request; trial court should have restricted requests that were overbroad rather than prohibiting precertification discovery].) Nonetheless, a trial court has the inherent power to control proceedings to insure the orderly administrative of justice. (See Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967.) In the circumstances of this case, it was not irrational (i.e., an abuse of discretion) for the trial court to deny a request that was not pursued until the last possible day. Here, plaintiff had an opportunity to review Vargas's declaration prior to filing the reply papers in support of his certification motion and he chose not to include a request for further discovery in his reply. Instead, the reply addressed Vargas's declaration by asserting Medical Center had offered no relevant evidence of difficulty, let alone prohibitive difficulty, in identifying class members.

In these circumstances, we conclude plaintiff has not shown he was denied an opportunity to depose Vargas. He had plenty of time and opportunity, yet chose not to depose her. Therefore, plaintiff has failed to establish reversible error. III. CERTIFYING AN ISSUE CLASS

A. Background

1. Proceedings in Trial Court

Plaintiff's reply to Medical Center's opposition to his motion for class certification asserted, at a minimum, it was appropriate under California Rules of Court, rule 3.765(b) to certify a class with respect to an issue of contract interpretation—specifically, whether the admissions contract contained an "open price" term that allowed Medical Center to charge no more than the reasonable value of the services provided. The trial court addressed this request for a declaratory judgment that the contract limited Medical Center to charging reasonable value by stating "such a determination would not appear to be useful or enforceable without some way of determining what 'reasonable value' actually means in specific cases. In addition, since plaintiff is not seeking injunctive relief, restitution, or money damages, there does not appear to be any concrete benefit from a declaration that [Medical Center] can charge no more than the 'reasonable value' of its services." The court also stated the requested declaration was "so vague as to be meaningless and unenforceable. Thus, it is unclear how the declaration would actually benefit the proposed class members. Given the amount of work, time and expense of ascertaining the class, the benefit of certifying the class and allowing the action to proceed appears to be minimal."

2. Proceedings on Appeal

The proceedings in this court relating to the certification of an issue class are described under the headings "Appellate Briefing" and "Oral Argument" of the "PROCEEDINGS" section of this opinion. Having determined that the denial of class certification as to the entire lawsuit was not an abuse of discretion, we now turn to whether an issue class should be certified under California Rules of Court, rule 3.765(b) on a question of contract interpretation.

B. Proposed Issue Class

The first step in defining an issue class is to identify the particular issue or issues to be decided for the class. The parties' supplemental briefing addressed certifying the issue of whether Medical Center's admissions contract contains an "open price" term, which was the issue plaintiff suggested in the trial court. This question of contract interpretation involves the contractual phrase "regular rates and terms" and the potential application of Civil Code section 1611, which provides: "When a contract does not determine the amount of the consideration, nor the method by which it is to be ascertained, or when it leaves the amount thereof to the discretion of an interested party, the consideration must be so much money as the object of the contract is reasonably worth." The broad issue of contract interpretation can be restated more specifically using this statutory text. The specific issues include whether the admissions contract (1) "determine[s] the amount of the consideration," (2) "determine[s] ... the method by which [the consideration] is to be ascertained" or (3) "leaves the amount thereof to the discretion of an interested party." The answers to these specific issues will determine whether Civil Code section 1611 controls and limits the payment obligation to the reasonable worth or value of the services rendered to the patient.

Importantly, this issue of contract interpretation does not reach the question of whether the rates in Medical Center's chargemaster are reasonable. The reasonableness of the rates in a chargemaster cannot be determined categorically because of the possibility that some rates might be reasonable and others might be unreasonable. (See pt. I.A.1., ante [rates billed under chargemaster]; Howell, supra, 52 Cal.4th at p. 561 [hospital bills based on chargemaster prices do not always exceed reasonable value of the services].) Consequently, deciding whether Medical Center's chargemaster rates are reasonable would require an individualized analysis of each rate. In Hefczyc, the court rejected the plaintiff's request for certification of a single class issue because the declaration sought was that the admissions agreement did not permit or allow the hospital to bill at chargemaster rates. (Hefczyc, supra, 17 Cal.App.5th at p. 545.) The court concluded:

"That inquiry presents individualized and complicated issues unique to each class member, each of whom received different bills based on different services. Accordingly, the single issue that Hefczyc has identified is not appropriate for class certification." (Ibid.)

Here, the issue of contract interpretation is narrower than the single issue identified by the plaintiff in Hefczyc. The proposed class issue does not reach the complexities associated with the rates contained in the chargemaster. Stated otherwise, the class issue would be resolved and the declaratory relief entered without inquiring into the reasonableness of individual chargemaster rates. If plaintiff prevails, such relief would declare that the sentence in the admissions agreement stating the patient "shall pay [Medical Center] for hospital services, including professional services of hospital based physicians[,] in accordance with the regular rates and terms of [Medical Center]" is an open price term that, pursuant to Civil Code section 1611, limits the consideration paid to Medical Center to the reasonable worth of the services provided. No further declaratory relief would be required to resolve the class issue. For instance, the determination of the meaning of the sentence in the admissions contract would not change based on the patient's eligibility for discounts or medical coverage. Thus, Medical Center's arguments about the difficulty in determining whether a self-pay patient has received any reductions relate to matters not relevant to the proposed class issue.

In summary, the issue of contract interpretation proposed as the class issue in this case is narrower that the issues addressed in Hefczyc and Kendall, which were rejected for certification as class issues. The next step in our analysis considers the appropriate class definition and then we address whether the class issue and definition meet California's requirements for certification.

C. Class Definition

1. Plaintiff's Proposals

Plaintiff's supplemental brief proposed three class definitions. The first was the definition contained in its motion for certification. The second proposed class definition includes all individuals who, from October 14, 2011, to the date of class certification, received treatment at Medical Center and were directly billed at chargemaster rates on one or more occasions. The third proposed class definition drops the reference to direct billing at chargemaster rates and referred simply to all self-pay patients who, from October 14, 2011, to the date of class certification, received treatment at Medical Center.

Medical Center argues there is no plausible way to state the class that would allow for certification. Medical Center contends the proposed class definitions are overbroad, are not limited to emergency department patients, and are not limited to patients who read and signed the admissions contract.

2. Modified Class Definition

Initially, we note that courts are not limited to the class definition stated in the pleadings or in the motion for certification. "[I]f necessary to preserve the case as a class action, the court itself can and should redefine the class where the evidence before it shows such a redefined class would be ascertainable." (Hicks, supra, 89 Cal.App.4th at p. 916.) Therefore, we may modify the class definition to assure that it is appropriate for the single issue of contract interpretation presented.

We conclude the class definition for the issue of contract interpretation presented should be crafted to account for the parameters of the issue being decided. As the issue relates to contract interpretation, it logically follows that the class definition should be limited to patients who are subject to the contract. Accordingly, the class definition should be limited to patients who signed the contract (personally or through an agent), an objective characteristic readily determined from the patient's file.

Medical Center's argument about limiting the class to emergency room patients also is reasonable. The allegations in the complaint that to (1) the "standard contracts for emergency room care" and (2) a form contract drafted by Medical Center that all emergency room patients (or their agents) are required to sign. Accordingly, we conclude the class definition should be limited to patients treated at Medical Center's emergency departments.

In addition, although the particular issue of contract interpretation is not necessarily relevant only to self-pay patients, we will accept the suggestion in plaintiff's third proposed class definition that the class be limited to self-pay patients as these patients are more likely than insured patients to be involved in a controversy regarding the meaning of the contractual phrase "regular rates and terms." Medical Center's arguments imply the class definition should exclude patients who qualify for charity care or some other discount. We reject this argument on the ground that adding such a restriction to the class definition is unnecessary because that characteristic is not connected to the issue of contract interpretation. In other words, patients who may qualify for discounts are subject to the same admissions contract and their qualification for a discount has not been shown to have any bearing on the meaning of the contractual language subject to interpretation.

Based on the foregoing considerations, we modify the third proposed class definition as follows:

All self-pay patients who (1) from October 14, 2011, to the date of class certification, (2) received treatment at the emergency department of Community Regional Medical Center or Clovis Community Medical Center, and (3) signed (personally or through an agent) the standard admissions agreement.¹³

13 The definition of the term "self-pay patient" is derived from that portion of Health and Safety Code section 127400, subdivision (f) that states: "'Self-pay patient' means a patient who does not have third-party coverage from a health insurer, health care service plan, Medicare, or Medicaid, and whose injury is not a compensable injury for purposes of workers' compensation, automobile insurance, or other insurance[.] Self-pay patients may include charity care patients."

Next, we consider whether the class issue and this class definition meet California's requirements for certification. In part I.B.1, ante, we summarize those requirements as (1) ascertainability, (2) numerosity, (3) predominance of common questions, (4) typicality, (5) adequacy of representation, and (6) superiority.

D. Class Certification Requirements

1. Numerosity

The trial court found plaintiff's initial class was sufficiently numerous for certification. Medical Center does not contest this finding. Indeed, Medical Center's arguments are based on there being too many patient files to review to determine if a particular person falls within the proposed definitions. Vargas's declaration stated that in 2014 there were 8,000 emergency department encounters per month at the facility in downtown Fresno and 5,000 such encounters per month at the Clovis facility. Based on the trial court's findings and the evidence in the record, the modified class definition satisfies the numerosity requirement.

2. Ascertainability

As described in part II.B.2, ante, an important inquiry in applying the principles that define California's ascertainability requirement is whether the class members will be given notice of the class action before the merits of the claims are resolved. Here, notice is not required before the class issue of contract interpretation is decided and a declaratory judgment filed. It is not the type of issue for which putative class members must be allowed to opt out of the class and, therefore, no purpose would be served by requiring ascertainability before the declaratory judgment is issued. (See Bell, supra, 226 Cal.App.3d at p. 1604.)

The other purpose for giving notice is to inform class members of the res judicata effect of the judgment, which bars them from relitigating the issue. (Aguirre, supra, 234 Cal.App.4th at pp. 1300-1301.) Here, notice of the res judicata effect of the judgment can be deferred until after the declaratory judgment has been entered and that notice may be given by publication. (Cal. Rules of Court, rule 3.766(f).) Therefore, for the purpose of providing notice, we conclude the point in time when the class must be ascertainable is after the judgment is filed.

Another reason why a class must be ascertainable exists when the relief awarded involves monetary or other types of compensation. Delivery of the award requires the identification of the class members so delivery can be completed. Here, the resulting declaratory judgment will not result in an award that requires delivery. Thus, our analysis of ascertainability is not influenced by the need to deliver an award.

Taking into consideration the fact that the resolution of the question of contract interpretation will result only in declaratory relief, we conclude ascertainability exists in this case if the class definition contains sufficient objective characteristics and common transactional facts to allow a member to the class to identify himself or herself as subject to the contract interpretation set forth in the declaratory judgment. We further conclude members of the proposed class are capable of self-identification under this standard. A patient will have personal knowledge of his or her status as a self-pay patient who received treatment at the emergency department of Community Regional Medical Center or Clovis Community Medical Center during the period from October 14, 2011, to the date of class certification. Also, if the self-pay patient cannot recall signing Medical Center's standard admissions agreement containing the language interpreted in the declaratory judgment, the patient would be able to obtain that information from Medical Center when dealing with the bill presented by Medical Center, which is the point in time when the contract interpretation will be applied to the parties' contractual relationship. Furthermore, the question of a signed contract may not be relevant to how the parties proceed in resolving the matter of payment. If there is no signed contract governing the parties' contractual relationship, it follows that there is no agreed-upon price term and, therefore, Civil Code section 1611 would limit payment to the reasonable worth of the services rendered by Medical Center. Thus, the outcome would be the same in that situation as where a signed contract for the payment of "regular rates and terms" exists and it is determined that the payment provision is subject to Civil Code section 1611 because it is an open price term.

Therefore, we conclude the class definition adopted in part III.C.2., ante, satisfies California's ascertainability requirement.

3. Predominance

When considering certification of an entire lawsuit as a class action, the predominance requirement presents the question of whether "'the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.'" (Brinker, supra, 53 Cal.4th at p. 1021.) Our Supreme Court has not addressed how the requirement for predominant common questions of law or fact applies when an issue class is being considered for certification under California Rules of Court, rule 3.765(b). This legal question about the predominance requirement can be framed as follows: "Need common questions predominate over individual ones merely in the specific issues that are certified, or need the common questions predominate in the entire cause of action?" (2 Newberg on Class Actions, supra, § 4:91.) We conclude common questions must predominant over individual ones in the specific issues that are certified—a conclusion that avoids rendering California Rules of Court, rule 3.765(b) superfluous. (See Ibid.; cf. In re Nassau County Strip Search Cases (2d Cir. 2006) 461 F.3d 219, 226-227.) Applying this standard to the circumstances of this case, it is clear that the predominance requirement is satisfied.

Medical Center refers to plaintiff's argument about contractual ambiguity and states "that parole [sic] evidence of the parties' intent at the time of contract will be relevant to interpret the agreement." This argument raises the possibility of individualized inquiries into the oral (i.e., parol) statements exchanged about the meaning of the contractual phrase "regular rates and terms." In response, plaintiff asserts his theory of contract interpretation is subject to an objective standard and the same interpretation will apply to all class members. (See Berman v. Bromberg (1997) 56 Cal.App.4th 936, 948 [California recognizes the objective theory of contracts; object intent evidenced by contract's word, rather than subjective intent, controls interpretation].) Plaintiff cites La Sala, supra, 5 Cal.3d at page 877 for the proposition that contracts of adhesion present ideal cases for class adjudication. We conclude the argument about possible individualized inquiries into oral statements about the meaning of the form contract is more of an abstract idea than a practical reality in the context presented. Vargas's declaration states that Medical Center bills every patient at the chargemaster rates. This statement necessarily establishes that Medical Center has never varied the interpretation of its form contract based on oral statements exchanged with a patient at the time the contract was signed. This fact, the limitation of the class to emergency room patients, and the absence of any allegations in the complaint about parol statements relevant to the meaning of the phrase "regular rates and terms" leads us to conclude that common questions will predominant the resolution of the class issue of contract interpretation.

Here, we conclude common questions of fact and law predominant the class issue involving the interpretation of a form contract and the application of Civil Code section 1611 to that interpretation.

4. Typicality

Typicality refers to the class representative having claims or defenses typical of the class. (Brinker, supra, 53 Cal.4th at p. 1021.) Here, the typicality requirement is easily satisfied because plaintiff's claim regarding the interpretation of the contract is the same for all class members. The ease with which claims regarding the interpretation of a form contract satisfy the typicality requirement is one reason why courts state that such claims are ideal for class adjudication. (See La Sala, supra, 5 Cal.3d at p. 877; Steinberg, supra, 224 F.R.D. at p. 74 ["interpretations of a form contract appear to present the classic case for treatment as a class action"].)

5. Adequacy of Representation

Generally, a putative representative cannot adequately represent the class—that is, protect its interests—if the representative's interests are antagonistic to or in conflict with the objectives of those he purports to represent. (Dart, supra, 29 Cal.3d at p. 470.) Here, plaintiff's interests and objectives in resolving the issue of contract interpretation align with the interests of the members of the proposed class. Nothing in the record suggests that plaintiff is lacking in the determination necessary to pursue his interests and the interests of the class members.

Another factor to consider is the existence of actual antagonism within the class. In this case, "there was no evidence of antagonism to the class suit by any class members." (Espejo v. The Copley Press, Inc. (2017) 13 Cal.App.5th 329, 352 (Espejo).)

The competency and commitment of class counsel also is a factor relevant to determining the adequacy of representation. (Espejo, supra, 13 Cal.App.5th at pp. 352-353.) Here, the qualifications of the attorneys representing plaintiff are set forth in their declarations. The vigor and tenacity with which they are willing to pursue claims on behalf of self-pay emergency room patients is demonstrated by the record in this case and the numerous appeals that the attorneys have pursued on behalf of such patients.

Furthermore, as noted in plaintiff's supplemental brief, Medical Center has made no argument that he or his counsel cannot adequately represent the class. Medical Center's supplemental brief, which was filed after plaintiff's, did not develop any argument as to the inadequacy of plaintiff and his counsel to represent the class.

Consequently, we conclude plaintiff and his counsel have demonstrated they are capable of adequately representing the class in the litigation of the class issue involving the interpretation of the admissions contract.

E. Superiority of Certifying an Issue Class

The parties disagree as to the superiority of resolving the issue of contract interpretation and application of Civil Code section 1611 for an issue class certified under California Rules of Court, rule 3.765(b).

1. Basic Principles

The superiority of a class adjudication is established when there are "substantial benefits from certification that render proceeding as a class superior to the alternatives." (Brinker, supra, 53 Cal.4th at p. 1021.) Determining whether there are substantial benefits requires a careful weighing of the respective benefits and burdens to the court and the litigants. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435 (Linder).) The four factors most commonly evaluated in determining the superiority of class certification are (1) the interest of each class member in controlling his or her own case; (2) the difficulties, if any, that are likely to be encountered in managing the class; (3) the extent of existing litigation by individual class members; and (4) the desirability of consolidating all claims in a single action before a single court. (Basurco v. 21st Century Insurance Co. (2003) 108 Cal.App.4th 110, 121 (Basurco).)

In general, a class action is superior to the alternative of individual lawsuits where class adjudication provides small claimants with a method of obtaining redress and when numerous parties suffer injury of insufficient size to warrant individual action. (Linder, supra, 23 Cal.4th at p. 435.) When certification of an issue class is considered, the foregoing principles must be adjusted to take into account (1) that only limited issues will be resolved for the class and (2) the nature of those issues. "[S]pecific advantages of issue certification include conserving institutional resources by avoiding duplicative litigation, ensuring similarly situated plaintiffs are treated similarly, and allowing for the advancement of claims that individual plaintiffs would lack the incentive or ability to bring." (2 Newberg on Class Actions, supra, § 4:90.)

2. Trial Court's Determinations

The trial court stated a judgment declaring that Medical Center was limited to obtaining the reasonable value of its services "would not appear to be useful or enforceable without some way of determining what 'reasonable value' actually means in specific cases" and there did not appear to be any concrete benefit from a declaration stating Medical Center could charge no more than reasonable value. Such a declaration was, in the court's view, "so vague as to be meaningless and unenforceable." As to the burden of proceeding as a class action, the court referred to the amount of work, time and expense of ascertaining the class and concluded the benefit of proceeding as a class action appeared to be minimal.

3. Contentions of the Parties

Plaintiff contends that the superiority of a class action proceeding is automatic with respect to a class issue because determining the single issue once is necessarily superior to many individual actions in which the same issue is presented or, alternatively, to having the issue go unresolved because putative class members cannot afford to litigate the issue. As to how other individual actions might proceed, plaintiff asserts that the issue of contract interpretation is the very first issue that would need to be decided in any such actions, which would make those actions more efficient.

Medical Center argues a ruling on the proposed class issue "would be no more than an advisory opinion without any force or value to the purported class members." As to weighing benefits and burdens, Medical Center refers to the trial court's statement that the benefits of class certification would be minimal in relation to the work needed to ascertain the class members.

4. Analysis of the Parties' Contentions

First, we reject plaintiff's contention that superiority is automatic with respect to an issue class. Plaintiff has cited no authority from California adopting such a principle about superiority in the context of a class issue. As to federal cases, they are not helpful to plaintiff because federal law differs from California law in that the superiority requirement does not apply to declaratory relief actions under Rule 23(b)(2). As with the ascertainability requirement, we conclude the superiority requirement applies to California class actions seeking declaratory relief. Therefore, we conclude the superiority of proceeding with a class issue seeking declaratory relief must be evaluated on a case-by-case basis using the four factors listed in Basurco, supra, 108 Cal.App.4th at page 121. (See pt. III.E.1., ante.)

Second, we reject Medical Center's contention that a declaratory judgment resolving the issue of contract interpretation would be an advisory opinion. This contention is contrary to California statute, which specifically authorizes disputes over the meaning of a contract to be resolved by a declaratory judgment. (§ 1060.) In other words, a declaratory judgment stating the form admissions contract contains an open price term that requires self-pay patients to pay no more than the reasonable value of the services provided would be a binding judgment with res judicata force or effect. Medical Center's opposing view is based on a fundamental misunderstanding of (1) how California's declaratory relief statute applies to contract interpretation and (2) the impact of the resolution of a class issue under California Rules of Court, rule 3.765(b).

Third, we reject Medical Center's contention that resolving the issue of contract interpretation would have no value to putative class members. The class issue would resolve whether the contractual reference to "regular rates and terms" is an open price term that limits the patient's payment obligation to the reasonable worth or value of the services provided. This issue is a threshold question in disputes about the amount that self-pay patients are obligated to pay. Its resolution would remove uncertainty about the meaning of "regular rates" and focus any billing dispute between the patient and Medical Center on other issues. If plaintiff's interpretation prevails, Medical Center could no longer claim patients were contractually bound to pay chargemaster rates without regard to whether those rates were reasonable. If Medical Center prevails, patients could not argue Civil Code section 1611 defines their payment obligation. Removing this uncertainty would increase the probability that Medical Center and the patient are able to settle a billing dispute. Also, if settlement does not result, the resolution of the issue would reduce the issues to be addressed in any litigation between Medical Center and the patient, which would reduce the cost of that litigation to the patient, Medical Center and the courts.

5. Analysis of the Trial Court's Determinations

The trial court's determination that a declaratory judgment on the issue of contract interpretation would not appear to be enforceable is contrary to California law for the same reasons that we rejected Medical Center's contention that such a declaratory judgment would be an advisory opinion. Such a declaratory judgment would be enforceable in the sense that the judgment would have res judicata effect for both Medical Center and the members of the class.

The trial court's determination that the declaratory judgment would not be useful appears to be based on the idea that the usefulness or benefits of the contract interpretation must be realized in the class action lawsuit pending before the court. The analysis of the usefulness or the benefit to be obtained from the certification and resolution of the class issue extends beyond the present litigation and considers the overall impact on the class members, the defendant and the courts. For instance, a declaratory judgment interpreting the contract is beneficial because it will provide a uniform interpretation of the contract for all self-pay patients in the class. (See Gooch, supra, 672 F.3d at p. 428 [class certification appropriate where declaratory judgment will provide uniform interpretation of contract].) This uniform interpretation may result in some billing disputes being settled without the initiation of litigation. It also would be useful because neither the court nor the parties to the contract would need to litigate the question again, a factor a particular importance in negative value lawsuits. (American Law of Products Liability (3d ed. 2018) Class Actions, § 51:81 [existence of a negative value—i.e., where litigation expenses exceed recovery—is a main reason for finding superiority of a class action].) Therefore, as with Medical Center's argument that a declaratory judgment would lack value, we reject the trial court's determination that a declaratory judgment on the issue of contract interpretation would not be useful.

Similarly, the trial court's statement that a declaratory judgment resolving the issue of contract interpretation would be "so vague as to be meaningless" is erroneous. While the question of reasonable value in a particular situation would not be resolved, the resolution of the threshold question of contract interpretation would have meaning because of the res judicata effect of the declaratory judgment and the resulting clarification of the parties' contractual relationship. In short, the declaratory judgment would have meaning and that meaning would affect the issues presented to the court in a collection action brought by Medical Center against a patient.

The trial court's determination of the burden of proceeding as a class action was based on the time and expense devoted to giving notice. Here, plaintiff does not assert notice of the class issue is warranted. Instead, plaintiff contends notice is not necessary and, as a result, any burden associated with giving notice is not part of the weighing process to determine whether a class issue is superior to the other ways of resolving the issue. We concluded earlier that notice of the class issue is not needed at this stage of the proceeding and may be given after the declaratory judgment is entered. Also, any postjudgment notice may be given by publication, which imposes a relatively light burden on the court and the parties. Therefore, we conclude the time, expense and work involved in giving notice to the class members does not outweigh the benefits of resolving the contract interpretation issue on a classwide basis.

6. Evaluation of Four Factors

Our next step involves evaluating the four factors California courts use to determine the superiority of class adjudication. (See Basurco, supra, 108 Cal.App.4th at p. 121 [four factors].) First, the interest of each class member in controlling the adjudication of the contract interpretation issue for himself or herself is slight. The individual claims of self-pay patients appear to be negative value claims. Furthermore, there is nothing in the record suggesting that class members would prefer to litigate the issue on their own. (See generally, 2 Newberg on Class Actions, supra, § 4:69 [member's interest in individually controlling litigation].)

Second, the factor addressing the extent of existing litigation by or against individual class members is related to the class member's interest in controlling the litigation of his or her own claim. (See 2 Newberg on Class Actions, supra, § 4:70 [pending litigation].) The presence of significant other litigation involving the same controversy tends to weigh against superiority, particularly if that litigation is far advanced. (Ibid.) Here, there is no evidence in the record of existing litigation involving Medical Center and members of the proposed class. Thus, there is no pending litigation entitled to deference. Accordingly, this factor does not show other alternatives are superior to certifying the class issue.

Third, the difficulties, if any, that are likely to be encountered in managing the class are relevant to superiority. (Basurco, supra, 108 Cal.App.4th at p. 121.) The potential difficulties in managing a narrow issue of contract interpretation as a class issue are minimal. There is no need to provide notice to the class before the issue is resolved. If Medical Center's interpretation prevails, there will be no need to provide notice after the judgment is entered because there will be no change to the status quo. If plaintiff's interpretation prevails, notice may be accomplished by publication and the interpretation might be implemented through injunctive relief directing Medical Center how to apply the contractual provision in dealing with self-pay patients.¹⁴ Therefore, deciding the question of contract interpretation as a class issue will not require significantly more managerial effort than interpreting the admissions contract for plaintiff alone. (See 2 Newberg on Class Actions, supra, § 4:72 [manageability inquiry is a comparative one].)

14 Plaintiff's complaint requests declaratory relief, but does not explicitly request injunctive relief. However, if appropriate under the circumstances, injunctive relief could be awarded pursuant to the complaint's request for "such other and further relief as may be just and proper."

Fourth, we consider the desirability of consolidating the class issue into a single action before a single court. Desirability embodies two broad concerns that are independent of one another—geography and aggregation. (See 2 Newberg on Class Actions, supra, § 4:71 [desirability of concentrating litigation in one forum].)

From a geographical perspective, concentrating the class issue in the Fresno County Superior Court is desirable as Medical Center's facilities and most of the residences of the class members are located in Fresno County. Thus, no other state court venue offers a more geographically convenient location. As to choosing between federal and state court, the issue of contract interpretation and the application of Civil Code section 1611 presents questions of California law, which are appropriately resolved in state court. There are no questions of federal law that would make a federal district court a more desirable forum for deciding the class issue. Thus, resolving the contract interpretation question as a class issue in Fresno County Superior Court is desirable from a geographic perspective.

From an aggregation perspective, desirability includes the evaluation of the efficiencies to be gain and the consideration of necessity, convenience, and preventing a failure of justice. (See Weaver, supra, 32 Cal.2d at p. 837.) As discussed earlier, it would be efficient for the parties and the court to resolve the issue of contract interpretation as a class issue. As a general matter, the cases describing interpretation of form contracts as a class or ideal issue for class adjudication have recognized this efficiency. (See pt. I.B.5., ante.) As to convenience, it would be simpler for the court, Medical Center and the class members to have the question of contract interpretation resolved in one lawsuit. As for necessity and preventing a failure of justice—the main purposes underlying section 382—we compare the results generated by proceeding as an individual claim with the results generated by proceeding with the class issue. If class members are required to pursue the contract interpretation question individually, there is the potential for different contract interpretations being applied to class members. This difference in treatment between those who litigate and prevail and those who do not litigate (or do not prevail) is relevant to a failure of justice, which should be equal for all. Also, it may be difficult for class members to vindicate their contractual rights because of the cost of pursuing a claim or defending a collection action. Therefore, the negative value of the individual cases and the potential lack of uniformity in the application of the admissions contract weigh in favor of aggregation of the class issue.

In summary, the four factors used for evaluating the superiority of class adjudication support the conclusion that certifying the class issue is superior to the alternate ways of resolving the issue.

F. Appellate Relief

This court's request for supplemental briefing asked counsel to address whether the certification of the class issue should be remanded to the trial court for determination or, alternatively, whether we should direct the trial court to certify the class issue. (See §§ 43, 906 [appellate relief].) Plaintiff contends this court should direct the certification of the class issue. In contrast, Medical Center argues the appropriate appellate relief is remand to the trial court to apply the appropriate standards to a selected class definition.

Under the abuse of discretion standard of review, trial courts ordinarily are given deference to decide class certification issues based on the view that they are better situated to evaluate the efficiencies and practicalities of permitting group action. (Brinker, supra, 53 Cal.4th at p. 1022.) Despite this deference to the trial courts, there are many cases in which a California appellate court has directed the trial court to certify the class. For example, in Capitol People First v. State Dept. of Developmental Services (2007) 155 Cal.App.4th 676, the plaintiff sought injunctive and declaratory relief enforcing statutory rights of person with developmental disabilities and the appellate court reversed the order denying class certification and directed the trial court to certify the class. (Id. at pp. 702-703.)

Other appellate decisions have directed the certification of class actions. (E.g., ABM Industries Overtime Cases (2017) 19 Cal.App.5th 277, 312 ["matter remanded for certification of classes as set forth in this opinion"]; Faulkinbury v. Boyd & Associates, Inc. (2013) 216 Cal.App.4th 220, 241 [remand with directions to grant motion for class certification]; Ghazaryan v. Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524, 1539 [remanded with directions to certify subclasses]; Medrazo v. Honda of North Hollywood (2008) 166 Cal.App.4th 89, 102 ["trial court is directed to certify the class"]; Aguiar v. Cintas Corp. No. 2 (2006) 144 Cal.App.4th 121, 139 ["trial court is directed to certify two subclasses"].)

Here, the trial court's reasons for denying certification of the class issue have not withstood appellate scrutiny. (See National Solar Equipment Owners' Assn. v. Grumman Corp. (1991) 235 Cal.App.3d 1273, 1286.) Furthermore, our analysis of the requirements for certification of an issue class under California Rules of Court, rule 3.765(b) leads us to conclude that remand and further consideration of the certification is unnecessary because the requirements for certification of the issue class have been met.

Accordingly, certification of a class issue of contract interpretation involving the contractual phrase "regular rates and terms" and the potential application of Civil Code section 1611 is appropriate. Stated in general terms, the class issue is whether Medical Center's admissions contract contains an "open price" term and, therefore, pursuant to Civil Code section 1611, patients are obligated to pay no more than the reasonable value of the services provided.¹⁵ The class definition for this issue is as follows: All self-pay patients who (1) from October 14, 2011, to the date of class certification, (2) received treatment at the emergency department of Community Regional Medical Center or Clovis Community Medical Center, and (3) signed (personally or through an agent) the standard admissions agreement. (See pt. III.C.2., ante.)

15 As stated in part III.B., this issue can be divided into more specific questions correlated to the text of Civil Code section 1611.

DISPOSITION

The order denying the motion for class certification is reversed. The trial court is directed to certify an issue class pursuant to California Rules of Court, rule 3.765(b) and to conduct further proceedings not inconsistent with this opinion.

Plaintiff shall recover its costs on appeal.

/s/_________ FRANSON, J. WE CONCUR: /s/_________
DETJEN, Acting P.J. /s/_________
PEÑA, J.