Schoshinksi v. City of Los Angeles , 215 Cal. Rptr. 3d 211 ( 2017 )

Filed 3/14/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
TERENCE SCHOSHINSKI et al., B269431
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC459269)
v.
CITY OF LOS ANGELES,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Elihu M. Berle, Judge. Affirmed.
Marlin & Saltzman, Stanley D. Saltzman, Stephen P.
O’Dell; The Hamideh Firm and Bassil A. Hamideh for Plaintiffs
and Appellants.
Michael N. Feuer, City Attorney, Thomas Peters, Chief
Assistant City Attorney, A. Patricia Ursea, Deputy City Attorney,
for Defendant and Respondent.
______________________
In 2012, the City of Los Angeles settled Chakhalyan v. City
of Los Angeles (Chakhalyan), a class action lawsuit. The suit
alleged the City had an unlawful practice of charging a trash
disposal fee to customers living in multi-unit dwellings who
received no trash disposal services from the City. Cunningham v.
City of Los Angeles, another class action lawsuit asserting similar
allegations, was simultaneously pending. The named plaintiff,
Brian Cunningham, did not opt out of the Chakhalyan class or
exclude himself from the settlement. Following approval and
finalization of the settlement in Chakhalyan, the City
successfully moved for summary judgment of Cunningham’s
claims. However, the trial court permitted Cunningham to
amend the complaint to add two additional named plaintiffs.
The two new plaintiffs, Terence Schoshinski and Thomas
Ballatore (collectively “plaintiffs”), also alleged the City
unlawfully charged them and others the trash disposal fee.
The City again moved for summary judgment, offering evidence
that in connection with an injunctive relief provision in the
Chakhalyan settlement, the City had already reimbursed the
plaintiffs for all improper charges. The City argued plaintiffs’
claims were now moot and they lacked standing to prosecute the
action. The trial court agreed and granted summary judgment.
On appeal, plaintiffs argue the trial court erred in
concluding they could not continue representing the class defined
in their complaint. Plaintiffs assert their individual claims are
not moot because they did not receive all of the relief they
demanded in their complaint. They also rely on caselaw
indicating a defendant’s attempts to unilaterally resolve a class
representative’s claims, or “pick off” the representative, do not
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necessarily eliminate that plaintiff’s standing to continue
prosecuting claims alleged in a class action complaint.
We conclude plaintiffs’ individual claims are moot because
a court could grant them no further relief beyond what they have
already received. Further, unlike other cases in which the “pick
off” exception has been applied, here, the injunctive relief
provisions in the Chakhalyan stipulated settlement and
judgment required the City to reimburse plaintiffs and other
putative class members. The City complied with this obligation
before plaintiffs filed the second amended complaint naming
them as parties. Under these particular circumstances, the “pick
off” exception does not apply.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2010, Lilith Chakhalyan filed a class action
lawsuit against the City of Los Angeles alleging it improperly
collected “solid resource fees” from her and other class members,
through entities such as the Department of Water and Power
(DWP) and the Department of Public Works. Chakhalyan
claimed the City “was improperly billing and collecting Solid
Resource Fees . . . from herself and others who live in Multiple-
Family Dwellings (e.g. apartment buildings). Plaintiff claimed
that the [fee] collected from her was illegal because the City is
prohibited from collecting [the fees] from Multiple-Family
Dwellings . . . if the City does not collect trash from the building.”
In April 2011, Brian Cunningham filed a separate class
action suit against the City and various entities (collectively
“the City”), alleging the City had improperly charged him and
others the solid resource fee. According to the complaint, in 2001,
the City settled a lawsuit regarding a fee improperly imposed for
3
trash collection services, yet it continued unlawfully charging the
same fee under a different name.
On June 8, 2012, the trial court conducted a final approval
hearing, and on June 25, the court entered a final order and
judgment in Chakhalyan. The judgment adopted the terms and
conditions of a settlement agreement the parties had entered and
executed in December 2011. The judgment finally certified a
class defined as “all customers of the Los Angeles Department of
Water & Power who, between October 28, 2007 and February 27,
2012, inclusive, paid [a solid resource fee] Overcharge and who
did not exclude themselves from the Class.”1
Under the settlement, all class members were entitled to
full reimbursement of all solid resource fee overcharges paid from
October 28, 2007 through February 27, 2012.2 The City was to
pay all class member claims no later than 180 days after entry of
the final order and judgment; thus, by approximately late
December 2012.
1 The agreement defined solid resource fee “overcharges” as
“the [solid resource fee] charged to residents of Multiple-Family
Dwellings who should not have been charged [a solid resource
fee] at all and/or who should have been charged [solid resource
fee] at the lower Multiple-Family Dwelling rate instead of at the
higher single-family dwelling rate.”
2 The settlement created two categories of class members,
“identified class members” and “self identified class members.”
Identified class members were to be reimbursed without any
action on their part. Self-identified class members were required
to submit a claim within 90 days after the final approval hearing.
4
The settlement, incorporated into the judgment, also
provided for injunctive relief. This included the following:
“(1) The City will alter its billing system, policies and practices to
ensure that the [solid resource fee] Overcharges are halted and
do not recur. These alterations have or will include the actions
set forth in Exhibit G. (2) The City will routinely monitor its
billing system, policies and practices to ensure that the [solid
resource fee] Overcharges do not recur. In the event it identifies
future [solid resource fee] Overcharges through such monitoring,
the City will promptly and fully reimburse any persons so
identified according to the City’s refund policy and make further
appropriate modifications to its billing system, policies and
practices.”
Exhibit G, referenced in the agreement, included measures
such as a billing insert to be sent to all new residential customers
explaining Bureau of Sanitation rates; the posting of notices
regarding refunds or credits for solid resource fee overcharges in
DWP offices and on the DWP website; and ongoing Bureau of
Sanitation projects related to preventing and correcting billing
errors.3
3 Of particular note here are three measures listed on
Exhibit G: “No. 5: The Solid Resources Fee (SRF) on residential
accounts that are newly initiated will be determined by BOS
[Bureau of Sanitation]. BOS will staff a desk at DWP to work
alongside DWP staff to ensure accurate SRF Code
determinations. The DWP will provide electronic confirmation of
data file changes and provide exception reports to the BOS on a
monthly basis and correct billing errors within four weeks of
receipt.” “No. 10: IT staff from BOS are developing an automated
program to check DWP account data (monthly download data)
against correction data files sent by BOS to DWP, to assure
5
The judgment additionally provided: “Without affecting the
finality of this Judgment in any way, this Court hereby retains
continuing jurisdiction over (a) implementation of the settlement
and any award or distribution to the Class Members, including
any dispute regarding an individual’s entitlement to receive a
settlement benefit or its amount; and (b) all Parties for the
purpose of enforcing or administering the Stipulation, pursuant
to C.C.P. § 664.6 or otherwise.”
In December 2012, the City filed a motion for summary
judgment in Cunningham. Plaintiffs’ opposition to the motion,
filed on February 21, 2013, included a declaration from Terence
Schoshinski. Schoshinksi declared he had been charged, had
paid, and continued to pay the solid resource fee, despite not
receiving trash pick-up services from the City for his multi-unit
residential property. Schoshinski declared he had repeatedly
contacted the City and requested that it cease charging him the
fee, to no avail.
On March 8, 2013, the City issued an over $980 credit to
Schoshinski’s DWP account.
On April 9, 2013, Cunningham’s counsel provided the City’s
counsel a copy of a proposed Second Amended Complaint, which
named Schoshinksi and Ballatore as plaintiffs.
On April 16, 2013, the City issued an over $1500 credit to
Ballatore’s DWP account.
errors remain corrected and fix any that reappear as soon as
possible.” “No. 11: A dedicated Database Architect will be
assigned to monitor the automated program for checking the
status of corrected data files against the DWP account data
subject to Mayoral and Council approval.”
6
On April 18, 2013, Cunningham filed an ex parte
application asking the court to specially set a hearing on his
motion for leave to file a second amended complaint so that it
could be considered before or with the City’s motion for summary
judgment.
On April 29, 2013, the trial court granted summary
judgment in favor of the City on Cunningham’s complaint.
The court concluded the City “offered sufficient evidence to show
[Cunningham’s] claims are precluded based upon the valid and
binding Chakhalyan settlement and the doctrines/defense of res
judicata and lack of standing. [Cunningham] presented no
evidence to raise a triable issue of material fact.” However, the
court granted Cunningham leave to file the second amended
complaint adding Schoshinski and Ballatore as plaintiffs.
According to plaintiffs, on that day, after the court hearing, they
learned for the first time that the City had credited their
accounts for the overcharges they had paid.
On April 30, 2013, plaintiffs filed the second amended
complaint.
In June 2013, the City again moved for summary judgment.
The City argued res judicata barred Ballatore from pursuing
some of his claims because he was a class member in the
Chakhalyan suit. The City further asserted both plaintiffs lacked
standing because their claims were moot. According to the City,
the Chakhalyan settlement resulted in a “continuing injunction
within the court’s jurisdiction, prohibiting and redressing the
very conduct of which Plaintiffs complain in this lawsuit and
about which they might claim any standing . . . .” The City
further argued: “By virtue of these mandatory injunctive
obligations, the City is required to provide prospective relief to all
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individuals it discovers have been mischarged [solid resource fee]
Overcharges, in addition to ceasing the billing of those charges.
On this basis, Plaintiffs and 852 others have already obtained
relief regarding SRF Overcharges and Plaintiffs cannot obtain
any effectual relief, or relief that would not just duplicate the
already mandatory Chakhalyan obligations.”
In support of the motion, the City offered declarations from
several City employees. A City database architect declared:
“Since conclusion of administration of refunds/credits to self-
identified and identified Chakhalyan class members, in the
course of my duties as a Database Architect for the Bureau [of
Sanitation], I continue to review and determine whether there
are any accounts that need adjustment (i.e. the stopping and/or
refunds/credits of Solid Resource Fees). I do so consistent with
the injunctive obligations on the City pursuant to Chakhalyan.
[¶] To this end, since January 2013, I am aware of 854 such
accounts for which such adjustments were made, including the
accounts of Thomas Ballatore and Terence Schoshinski . . . .”
The declaration was dated June 11, 2013.
Another City employee declared billing records indicated
Ballatore paid the solid resource fee from September 11, 2007
through April 10, 2013; the charges were stopped effective April
16, 2013, and the City issued a refund/credit on that date for all
of the solid resource fee charges Ballatore paid from October 2009
through April 10, 2013. The employee similarly declared billing
records showed the City stopped charging Schoshinksi the solid
resource fee effective February 26, 2013, and it issued him a
refund/credit on March 8, 2013. The declaration concluded:
“Tom Ballatore and Terence Schoshinksi received the
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aforementioned refunds/credits pursuant to the injunctive
obligations arising from Chakhalyan v. City of Los Angeles . . . .”
The City also offered the declaration of an employee who,
in addition to supervising tasks related to claims review for
Chakhalyan class members, “supervise[s] and/or oversee[s]
compliance with the injunctive obligations on the city as a result
of” Chakhalyan. The employee declared: “Consistent with the
pending injunction, 854 customer accounts, including those of
Thomas Ballatore and Terence Schoshinksi, have had Solid
Resources Fee charges stopped and refunds/credits issued.”
The parties stipulated to narrow the issues presented for
summary judgment to the City’s assertion that the plaintiffs’
claims were moot and they therefore lacked standing since, prior
to joining the action, they obtained relief pursuant to the
Chakhalyan injunction.4
Plaintiffs opposed the motion, on these narrowed grounds.
Ballatore declared he began receiving private trash collection
services in October 2009. According to Ballatore, the City told
him in 2009 that he had to pay the solid resource fee, even
though he was not receiving trash collection services from the
City. He declared that in 2011, the City again told him he had to
pay the fee, even after he called in response to a City letter
informing residents they should not be charged a solid resource
fee if they lived in a multiple-family dwelling that did not receive
refuse collection services from the City. Ballatore declared that
when he received a notice regarding the Chakhalyan settlement
4 The parties also stipulated that all of Ballatore’s claims
would be based on the City’s actions subsequent to February 27,
2012; in other words, after the close of the Chakhalyan class
period.
9
he discarded it. The City charged him the solid resource fee as
late as April 2013. The credit to his DWP account was applied
without his knowledge or consent. It appeared on his June 2013
DWP account statement.5
Schoshinski declared he informed the City in August 2012
that he was using a private trash collection service for his five-
unit multi-family dwelling. According to Schoshinski, the City
did not stop charging him the sanitation fee. He did not learn
until April 29, 2013 that the City had, without his knowledge,
applied a credit to his DWP account.
Plaintiffs argued the City did not stop charging them the
solid resource fee, or attempt to refund the charges, until after it
learned of their participation in the lawsuit. To support this
claim, plaintiffs pointed to the timing of the refunds and
plaintiffs’ declarations indicating the refunds appeared on their
accounts without explanation. They contended there was a
triable issue of fact as to whether the City had engaged in an
improper attempt to “pick off” plaintiffs to avoid class action
litigation and class-wide liability.
The City stated as undisputed the fact that plaintiffs had
received a refund for all solid resource fees they were improperly
charged. Plaintiffs purported to dispute that fact with only the
following statement: “It is unknown what the credit on [the
5 Plaintiffs attached a June 12, 2013 statement to Ballatore’s
declaration. The statement reflected electric charges from April
10, 2013 to June 10, 2013, and cancelled sanitation equipment
charges. A prior DWP statement was also attached to the
declaration. The prior statement was dated April 12, 2013. It
reflected electric charges from February 9, 2013 to April 10, 2013,
and a sanitation charge from February 9, 2013 to April 10, 2013.
10
plaintiffs’ DWP accounts] was/is for or whether, if in fact it
represents a refund, it is accurate.”
The trial court granted the City’s motion. The court
reasoned, in part, that plaintiffs received refunds from the City
after the Chakhalyan settlement was approved and this alone
appeared sufficient to indicate they lacked standing to act as
class representatives. The court rejected the “pick off” theory,
noting the City’s payments were mandatory under the
Chakhalyan settlement, not voluntary. The court indicated
plaintiffs offered no evidence to rebut the City’s evidence showing
the basis of the payments to them was the Chakhalyan
settlement. The court concluded all of plaintiffs’ claims were
subsumed by that settlement and it provided all of the relief
plaintiffs sought, thus plaintiffs had no valid claims.6
This appeal followed.7
6 The trial court also invoked res judicata as a basis for its
ruling. As noted above, the parties had stipulated to narrow the
issues to mootness and standing; further, in the trial court, the
City appeared to argue that only some of Ballatore’s claims were
barred by res judicata. As we resolve this case on other grounds,
we need not consider the parties’ arguments on appeal regarding
res judicata.
7 After the trial court issued an order granting the City’s
summary judgment motion, plaintiffs filed a notice of appeal.
In August 2015, this court dismissed the appeal for lack of an
appealable judgment or order. The trial court entered a
judgment against plaintiffs in November 2015. This appeal
timely followed.
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DISCUSSION
I. Plaintiffs’ Claims Are Moot
Plaintiffs argue that despite the City’s act of reimbursing
them for the solid resource fee overcharges they paid, their
individual claims are not moot because they have not received
complete relief on their claims. They additionally contend that
even if their individual claims are moot, the “pick off” exception
to mootness applied, preserving their standing to continue
prosecuting claims on behalf of others.
We disagree. The undisputed facts established plaintiffs’
claims are moot and the “pick off” exception has no application
under the circumstances presented here.
A. Standard of Review
“ ‘Because this case comes before us after the trial court
granted a motion for summary judgment, we take the facts from
the record that was before the trial court when it ruled on that
motion. [Citation.] “ ‘We review the trial court’s decision de
novo, considering all the evidence set forth in the moving and
opposing papers except that to which objections were made and
sustained.’ ” [Citation.] We liberally construe the evidence in
support of the party opposing summary judgment and resolve
doubts concerning the evidence in favor of that party. [Citation.]’
[Citation.]” (Lonicki v. Sutter Health Central (2008) 43 Cal.4th
201, 206.) Similarly, standing is a question of law we review de
novo. (IBM Personal Pension Plan v. City and County of San
Francisco (2005) 131 Cal.App.4th 1291, 1299.)
B. Standing and Mootness in the Class Action
Context
“In general, a named plaintiff must have standing to
prosecute an action. . . . ‘As a general principle, standing to
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invoke the judicial process requires an actual justiciable
controversy as to which the complainant has a real interest in the
ultimate adjudication because he or she has either suffered or is
about to suffer an injury of sufficient magnitude reasonably to
assure that all of the relevant facts and issues will be adequately
presented to the adjudicator. [Citations.] To have standing, a
party must be beneficially interested in the controversy; that is,
he or she must have “some special interest to be served or some
particular right to be preserved or protected over and above the
interest held in common with the public at large.” [Citation.]
The party must be able to demonstrate that he or she has some
such beneficial interest that is concrete and actual, and not
conjectural or hypothetical.’ . . . ‘Without standing, there is no
actual or justiciable controversy, and courts will not entertain
such cases. [Citation.]’ [Citation.]” (CashCall, Inc. v. Superior
Court (2008) 159 Cal.App.4th 273, 286.)
Related is the problem of “mootness.” When a plaintiff has
received all that he or she has demanded in the complaint, the
case is considered “moot”; in other words, there is no further
relief the court could provide. “ ‘Generally, courts decide only
“actual controversies” which will result in a judgment that offers
relief to the parties. [Citations.]’ ” (Larner v. Los Angeles Doctors
Hospital Associates, LP (2008) 168 Cal.App.4th 1291, 1296
(Larner).)
“The pivotal question in determining if a case is moot is
therefore whether the court can grant the plaintiff any effectual
relief. [Citations.] If events have made such relief impracticable,
the controversy has become ‘overripe’ and is therefore moot.
[Citations.] [¶] Thus, ‘ “[m]ootness has been described as ‘ “the
doctrine of standing set in a time frame: The requisite personal
13
interest that must exist at the commencement of the litigation
(standing) must continue throughout its existence (mootness).” ’
[Citations.]” ’ [Citations.] When events render a case moot, the
court, whether trial or appellate, should generally dismiss it.”
(Wilson & Wilson v. City Council of Redwood City (2011) 191
Cal.App.4th 1559, 1574; United States Parole Comm’n. v.
Geraghty (1980) 445 U.S. 388, 396 (Geraghty).)
Because a class action suit involves potential relief to
absent class members in addition to the plaintiff who brings the
suit, courts have recognized the duty a named plaintiff owes to
the class, and the “flexible character” of mootness in such actions.
(Geraghty, supra, 445 U.S. at pp. 400-401; La Sala v. American
Sav. & Loan Assn. (1971) 5 Cal.3d 864, 871 (La Sala).) Thus,
even when the named plaintiff’s claims are moot, courts have
under some circumstances applied exceptions to the mootness
doctrine to allow the plaintiff to continue prosecuting the suit.
Plaintiffs invoke one such exception—the “pick off” exception—
which we discuss at length below.
Still, the duty a plaintiff has to other class members
“should not be confused with an additional claim for relief.
A representative plaintiff still possesses only a single claim for
relief—the plaintiff’s own. That the plaintiff has undertaken to
also sue ‘for the benefit of all’ does not mean that the plaintiff has
somehow obtained a ‘class claim’ for relief that can be asserted
independent of the plaintiff’s own claim. ‘[T]he right of a litigant
to employ [class action procedure] is a procedural right only,
ancillary to the litigation of substantive claims. Should these
substantive claims become moot . . . , by settlement of all
personal claims for example, the court retains no jurisdiction over
the controversy of the individual plaintiffs.’ [Citation.]” (Watkins
14
v. Wachovia Corp. (2009) 172 Cal.App.4th 1576, 1589 (Watkins),
quoting Deposit Guaranty Nat. Bank v. Roper (1980) 445 U.S.
326, 332 (Roper).)
Thus, we first consider whether plaintiffs’ individual claims
are moot.
C. No Triable Issue of Fact that Plaintiffs’ Individual
Claims are Moot
Plaintiffs assert their claims are not moot because they
have not received all of the relief they demanded in their
complaint. We disagree.
i. The evidence established the City fully
satisfied plaintiffs’ monetary claims
The City offered evidence that plaintiffs’ DWP accounts
were credited for the solid resources fee overcharges plaintiffs
had paid before plaintiffs joined the litigation. Plaintiffs offered
no evidence to dispute the fact. They instead asserted they did
not know what the credits were for, or if they were accurate.
This was insufficient to raise a triable issue of fact on that point.
(Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163 [responsive
evidence giving rise to no more than mere speculation is
insufficient to establish a triable issue of material fact].)
Plaintiffs proffered no evidence indicating they are entitled to
further monetary relief to be reimbursed for the solid resource fee
overcharges they paid. Indeed, plaintiffs do not argue on appeal
that they have not received all of the monetary relief they
demanded in their complaint as to their individual claims.
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ii. The Chakhalyan judgment provides the
injunctive relief plaintiffs seek in their
complaint
The Chakhalyan settlement and judgment placed into
effect in all material aspects the injunctive relief plaintiffs seek
in their complaint. It is undisputed that this case concerns the
same overcharges alleged in Chakhalyan. In the second amended
complaint, plaintiffs demand injunctive relief that would require
the City to cease improperly charging the solid resource fee,
reimburse all improperly obtained fees, and authorize the court
to maintain jurisdiction over the case and any injunction issued
until the court, in its discretion, determines to dissolve and
dismiss the injunction.
Pursuant to the Chakhalyan settlement and judgment
which incorporated its terms, the City is to alter its billing
system, policies and practices so the overcharges cease and do not
recur and promptly and fully reimburse any persons who pay
future overcharges. The court is to retain jurisdiction for
purposes of enforcing the settlement, which includes the
injunctive relief provisions. This is exactly the injunctive relief
plaintiffs seek in their second amended complaint.
As we understand their argument, plaintiffs assert their
demand for declaratory relief would require additional measures,
such as an order that “class counsel be charged with retaining, at
Defendants’ expense, an accountant to review” data regarding the
amount of fees charged to each class member and payments
made, and that the accountant determine the amount owed to
each class member. The declaratory relief demand also seeks an
order that the City pay the amount owed to all class members
16
into a fund to be distributed to class members by the court,
and that the court oversee the disbursement of funds to the class.
We disagree that these additional measures render the
demand for injunctive relief materially different from the
Chakhalyan provisions, such that plaintiffs’ claims are not moot.
Plaintiffs suggest in their briefing on appeal that their complaint
seeks ongoing independent reporting or auditing of the City with
respect to future conduct. But their actual complaint demands
reporting and auditing related only to the calculation and
distribution of funds to the class identified in the complaint.
This speaks to administration of an award, but not a remedy for
the essential harm alleged in the complaint: the City’s act of
unlawfully charging the solid resource fee. This remedy was
addressed in Chakhalyan with the injunctive relief provision
requiring the City to stop overcharging customers and to
reimburse those overcharged—the same remedy plaintiffs
demand in their own injunctive relief request.
The Chakhalyan settlement and judgment has already put
into place the injunctive relief plaintiffs seek as a remedy for the
harms alleged in their complaint. (See e.g., Caro v. Procter &
Gamble Co. (1993) 18 Cal.App.4th 644, 660-662 [previously
entered consent decree addressed the conduct raised in plaintiff’s
complaint, rendering prayer for relief effectively moot; class
certification not appropriate where policies of disgorgement and
deterrence had been vindicated in other proceedings]; Chen v.
Allstate Ins. Co. (2016) 819 F.3d 1136, 1142 [plaintiff had
received complete relief on individual claims; plaintiff gave no
reason to believe that defendant’s consent to injunctive relief
would be inadequate or that plaintiff could obtain broader relief
after trial on the merits].)
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iii. The Chakhalyan injunctive relief
provisions bind the City and are prospective
Plaintiffs contend that although the Chakhalyan
settlement and judgment provides that the trial court will retain
continuing jurisdiction pursuant to Code of Civil Procedure
section 664.6 (Section 664.6), this applies only to the parties to
the Chakhalyan action and they were not “parties” under the
terms of the stipulated settlement. As we understand this
argument, plaintiffs assert the Chakhalyan court had no
jurisdiction over them. This contention does not advance
plaintiffs’ ultimate claim. It is undisputed that the City was a
party to the Chakhalyan settlement. As such, the City was, and
continues to be, subject to the Chakhalyan judgment. The court
has express continuing jurisdiction over the City as a party, with
respect to the stipulated settlement and judgment. Any
uncertainty regarding who may, or who will, seek to enforce the
settlement and judgment against the City does not mean the City
is free to abandon the obligations to which it stipulated and the
court approved.
Under Section 664.6, the trial court has continuing
jurisdiction to enforce the judgment, which incorporates the
stipulated settlement, against the City. (Lofton v. Wells Fargo
Home Mortgage (2014) 230 Cal.App.4th 1050, 1061 [retention of
jurisdiction under Section 664.6 includes jurisdiction over both
the parties and the case itself; it is broader than what typically
remains following entry of a judgment; and it includes the court’s
equitable authority].) The settlement includes the injunctive
relief provisions. Plaintiffs fail to offer any argument to explain
their assertion that continuing jurisdiction to enforce the
18
Chakhalyan settlement would not include the terms regarding
injunctive relief.
Moreover, plaintiffs’ argument that the court had no
jurisdiction to “enforce the stipulated injunction with respect to
post-class period claims” is inconsistent with the actual language
of the stipulated injunctive relief. In the agreement, the City is
bound to monitor its systems to ensure that the overcharges do
not recur, and in the event it identifies future overcharges
through such monitoring, it is to promptly and fully reimburse
the charges.
It would be absurd to read this language as applying only
to claims the City had already been made aware of and would
reimburse through other provisions in the agreement. (Mount
Vernon Fire Ins. Co. v. Busby (2013) 219 Cal.App.4th 876, 882
[contract interpretation requires a commonsense interpretation
which avoids absurd results]; In re Tobacco Cases I (2011) 193
Cal.App.4th 1591, 1601 [in enforcement actions consent decrees
are treated as contracts for purposes of interpretation].) The
stipulated settlement is explicitly prospective, intended to
provide relief should future overcharges occur.
To the extent plaintiffs contend the injunctive relief
provision only required the City to stop overcharging Chakhalyan
class members, or only to reimburse future overcharges assessed
to Chakhalyan class members, we reject the argument. The
injunctive relief provisions contain no such limiting language,
whereas other portions of the stipulated settlement identify
“class members” explicitly. Further, the provision regarding
reimbursement of future overcharges refers to those assessed to
“any persons so identified,” a term distinct from “class members.”
We therefore disagree that the settlement and judgment may be
19
construed as requiring the City to only reimburse future
overcharges if they are imposed on Chakhalyan class members.
iv. Plaintiffs have not shown their claims are
not moot because they have a continuing
economic interest based on shifting costs
and fees to a class
Finally, we reject plaintiffs’ argument that even though
they received complete relief before they filed their complaint,
they continued to have a stake in the litigation because of their
interest in shifting part of the litigation costs and attorney fees to
other class members.
Cases that have endorsed this theory have done so in a
context in which the defendant satisfies the plaintiff’s claim after
the plaintiff has filed suit, and often after the plaintiff has
engaged in significant litigation. In the seminal case on this
issue, Roper, the plaintiffs litigated the case through an
unsuccessful motion for class certification, filed a motion for an
interlocutory appeal, and only then did the defendant present an
offer of judgment. (Roper, supra, 445 U.S. at pp. 328-329.)
Under these circumstances, the court noted the plaintiffs claimed
a continuing economic interest in shifting the costs of litigation to
other class members. (Id. at p. 334, fn. 6.) This interest was one
basis for the conclusion that the plaintiffs had a personal stake in
the appeal of the lower court’s denial of their motion for class
certification.8
8 Plaintiffs cite Watkins at length, but Watkins discussed
Roper and found the reasoning inapplicable in that case. In
Watkins, the court concluded the plaintiff did not have standing
to represent a class because she had voluntarily settled her
claims. (Watkins, supra, 172 Cal.App.4th at p. 1592; Larner,
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Subsequent cases call into question the continuing validity
of the Roper analysis on this point. In Lewis v. Continental Bank
Corp. (1990) 494 U.S. 472, 480 (Lewis), the high court reasoned
an “interest in attorney’s fees is, of course, insufficient to create
an Article III case or controversy where none exists on the merits
of the underlying claim, see Diamond v. Charles [(1986)] 476 U.S.
54, 70-71 [(Diamond)]. Where on the face of the record it appears
that the only concrete interest in the controversy has terminated,
reasonable caution is needed to be sure that mooted litigation is
not pressed forward, and unnecessary judicial pronouncements
on even constitutional issues obtained, solely in order to obtain
reimbursement of sunk costs.” (Lewis, supra, at p. 480; Genesis
Healthcare Corp. v. Symczyk (2013) __ U.S. ___, 133 S.Ct. 1523,
1532 [noting the court would not decide whether Roper’s analysis
is still valid in light of Lewis].)
In Premium Plus Partners v. Goldman, Sachs & Co. (7th
Cir. 2011) 648 F.3d 533 (Premium Plus), the Seventh Circuit
Court of Appeals applied Lewis in a putative class action context.
After the district court twice denied class certification, the
representative plaintiff accepted an offer pursuant to Federal
Rule of Civil Procedure 68 (Rule 68), but also sought to continue
litigating the action in order to have a class certified. (Premium
Plus, at p. 535.) The plaintiff argued its claim was not fully
resolved “because if the class litigates, and wins, some of the
expenses that Premium Plus has incurred along the way could be
allocated to the class, and its net recovery therefore would be
supra, 168 Cal.App.4th at pp. 1302-1304 [after voluntary
settlement plaintiff retained no continuing interest in litigation;
plaintiff did not assert she had reserved a right to shift attorney’s
fees to class member, thus her appeal was moot].)
21
larger. The logical implication of this position is that a person
whose claim is moot still can file suit seeking attorneys’ fees.”
(Id. at p. 538.)
The Premium Plus court disagreed: “That position was
advanced, and flopped, in Diamond, [supra, 476 U.S. at pp. 70-
71], and again in Lewis, [svpra, 494 U.S. at p. 480]; it fares no
better when advanced by a would-be class representative.
The Court said flatly in Lewis that an ‘interest in attorney’s fees
is . . . insufficient to create an Article III case or controversy
where none exists on the merits of the underlying claim’; that’s
equally true of costs and the other expenses that Premium Plus
hopes to offload to the class.” (Premium Plus, supra, 648 F.3d at
p. 538.)
Although in Premium Plus the plaintiff accepted an offer of
judgment, we find the court’s reasoning persuasive here, in that
plaintiffs’ claims are equally moot. In addition, we are aware of
no legal authority supporting the proposition that a plaintiff
whose claims are fully satisfied before the plaintiff files a
complaint has a continuing economic interest in shifting attorney
fees and costs to others that is sufficient to constitute the
personal stake in the litigation required to avoid a finding of
mootness.9 Roper did not consider such facts. (See Steel Co. v.
9 We further note the absence of any factual record
indicating plaintiffs have actually incurred significant fees or
costs prior to the City’s reimbursement of the overcharges they
paid. In opposition to the motion for summary judgment,
plaintiffs declared only that they had retained counsel and were
therefore “contractually obligated to pay costs and attorneys’
fees.” They did not offer evidence indicating they have actually
incurred or paid any such costs or fees. (See Roper, supra, 445
22
Citizens for a Better Environment (1998) 523 U.S. 83, 107 “[A]
plaintiff cannot achieve standing to litigate a substantive issue
by bringing suit for the cost of bringing suit. The litigation must
give the plaintiff some other benefit besides reimbursement of
costs that are a byproduct of the litigation itself.”].)
The monetary relief the City provided to the plaintiffs, and
the injunctive relief it agreed to in the Chakhalyan stipulated
settlement and judgment, resulted in plaintiffs directly and
indirectly receiving what they demanded in their suit, before they
filed the second amended complaint that marked their formal
involvement in the litigation. There was no further relief to be
afforded the plaintiffs on their individual claims. (See Simi Corp.
v. Garamendi (2003) 109 Cal.App.4th 1496, 1503 [case is moot
when a court ruling can have no practical impact or cannot
provide the parties with effective relief]; Chen v. Allstate Ins. Co.,
supra, 819 F.3d at p. 1144 [interpreting Campbell-Ewald Co. v.
Gomez (2016) __ U.S. ___, 136 S.Ct. 663 (Campbell-Ewald), “a
lawsuit—or an individual claim—becomes moot when a plaintiff
actually receives all of the relief he or she could receive on the
claim through further litigation”].)
U.S. at p. 334, fn. 6 [“respondents have asserted as their personal
stake in the appeal their desire to shift to successful class
litigants a portion of those fees and expenses that have been
incurred in this litigation and for which they assert a continuing
obligation”]; Bais Yakov of Spring Valley v. ACT, Inc. (1st Cir.
2015) 798 F.3d 46, 49-50 [noting Roper’s “uncertain future” and
unclear applicability; record did not disclose terms of plaintiff’s
agreement with counsel, thus court did not know if amount
plaintiff had to pay attorneys would be less if class achieved a
recovery, or what fees, if any, plaintiff would be required to pay if
litigation ended at pre-certification stage].)
23
II. The Trial Court Properly Rejected the Pick Off
Exception to Mootness in this Case
Plaintiffs argue that even if their individual claims are
moot, they raised a triable issue of fact as to whether the “pick
off” exception to mootness in class action cases should be applied
here. We conclude the exception does not apply to this case.
A. The “Pick Off” Exception
Courts have been extremely skeptical of defense efforts to
take unilateral actions that moot a representative plaintiff’s
claims in an attempt to avoid litigating class claims. However,
these cases involve a defendant’s voluntary actions, most concern
such actions taken after the named plaintiff has filed a complaint,
and they address the defense attempt to provide a remedy to the
named plaintiff alone, rather than to the entire class.
For example, in La Sala, supra, 5 Cal.3d 864, the plaintiffs
brought a class action against a savings and loan association,
challenging a provision in the association’s trust deed that
permitted it to accelerate if the borrower executed a junior
encumbrance on the secured property. (Id. at p. 868.) After the
plaintiffs filed their complaint, but before the hearing on a
demurrer, the defendant offered to waive its right to accelerate
against the named plaintiffs. On its own motion, the trial court
ruled there was “no justiciable issue”; the court later dismissed
the case, ruling there was no individual plaintiff remaining who
was or could be construed to be a representative of the class.
(Id. at p. 870.)
The California Supreme Court reversed the decision,
concluding the defendant’s offer to provide relief to the plaintiffs
did not necessarily make them unfit to continue representing the
class. (La Sala, supra, 5 Cal.3d at p. 871.) The court reasoned:
24
“When a plaintiff sues on behalf of a class, he assumes a fiduciary
obligation to the members of the class, surrendering any right to
compromise the group action in return for individual gain. Even
if the named plaintiff receives all the benefits that he seeks in the
complaint, such success does not divest him of the duty to
continue the action for the benefit of others similarly situated.”
(Id. at p. 871.)
The La Sala court further concluded that even if the trial
court found the plaintiffs were no longer suitable representatives
and, after having a chance to amend the complaint, no suitable
representative was named, the court was required to notify the
class of the proposed dismissal. The court explained any other
resolution would allow the defendant to repeatedly offer relief to
the named class representative, then have the case dismissed.
“Such a procedure could be followed ad infinitum for each
successive group of representative plaintiffs. If defendant is
permitted to succeed with such revolving door tactics, only
members of the class who can afford to initiate or join litigation
will obtain redress; relief for even a portion of the class would
compel innumerable appearances by individual plaintiffs. Yet
the function of the class action is to avoid the imposition of such
burdens upon the class and upon the court. [Citation.]. If we
sanction [the defendant’s] tactic defendants can always defeat a
class action by the kind of special treatment accorded plaintiffs
here and thus deprive other members of the class of the benefits
of the litigation and any notice of opportunity to enter into it.”
(La Sala, supra, 5 Cal.3d at p. 873.)
We are mindful of the context of the La Sala court’s
reasoning. The plaintiffs had already filed their complaint when
the defendant offered to provide the relief they demanded.
25
Their claims were not moot before the plaintiffs filed suit.
The defendant offered to satisfy the named plaintiffs’ claims, but
it had not already done so. Its offer to resolve the claims was
purely voluntary, rather than required by law or contract.
Further, the offer to waive acceleration would apply only to the
plaintiffs, not any other members of the class.
In Kagan v. Gibraltar Sav. & Loan Assn. (1984) 35 Cal.3d
582 (Kagan), disapproved of an another ground by Meyer v.
Sprint Spectrum L.P. (2009) 45 Cal.4th 634, 643, footnote 3, the
California Supreme Court interpreted provisions of the Consumer
Legal Remedies Act (CLRA) as specifically prohibiting a
defendant from “picking off” prospective class representatives by
offering them relief while not providing similar relief to the entire
proposed class. (Id. at p. 587.) When the plaintiff in Kagan sent
the defendant a demand letter challenging certain practices,
including assessment of a particular fee, the defendant provided
only a portion of the relief the plaintiff demanded. (Id. at pp. 589,
592.) The plaintiff subsequently filed a class action suit. (Id. at
p. 589.)
The court concluded the defendant’s attempted “pick off”
was invalid under the CLRA and would not necessarily render
the plaintiff unfit to represent a class and bring the action.
There was no evidence the defendant complied with the statute’s
requirements that it identify similarly situated plaintiffs, notify
other consumers that it would provide them similar relief, and
provide relief to similarly situated consumers. (Kagan, at p. 592.)
It remained in the discretion of the trial court to determine
whether the plaintiff was a suitable representative for the class,
in accord with La Sala. (Kagan, at pp. 595-596.)
26
Federal courts have similarly addressed the “pick off”
exception, concluding when a defendant seeks to provide relief to
the representative plaintiff in a strategic attempt to moot the
plaintiff’s claims and avoid a class action, the plaintiff may
continue to prosecute the suit, at least to attempt to secure class
certification.10 (Wilson v. Gordon (6th Cir. 2016) 822 F.3d 934,
947-949.) Two United States Supreme Court cases considered
whether a plaintiff whose claim was expired or satisfied could
appeal an order denying class certification. In Geraghty, the
named plaintiff challenged parole release guidelines on behalf of
a class. He was paroled after his motion for class certification
was denied and while his appeal of the ruling was pending.
The court held he could still prosecute the appeal, despite the
expiration of his individual claim. (Geraghty, supra, 388 U.S. at
pp. 405-407.)
In Roper, the high court held that when, after the denial of
class certification, a defendant made an offer of judgment for the
maximum amount each plaintiff could have recovered in the
litigation, and the court entered judgment over the objection of
the plaintiffs, the plaintiffs could still appeal the denial of class
certification. (Roper, supra, 445 U.S. at pp. 329-330, 340.)
Most recently, in Campbell-Ewald, supra, 136 S.Ct. 663,
the high court concluded an unaccepted settlement offer or offer
of judgment under Rule 68 does not moot a named plaintiff’s
claims. (Campbell-Ewald, at p. 672.) However, the court did not
decide “whether the result would be different if a defendant
deposits the full amount of the plaintiff’s individual claim in an
10 California courts may look to federal law when seeking
guidance on issues of class action procedure. (In re Tobacco II
Cases (2009) 46 Cal.4th 298, 318.)
27
account payable to the plaintiff, and the court then enters
judgment for the plaintiff in that amount.” (Ibid.)
i. The Chakhalyan stipulated settlement and
judgment distinguishes this case
The critical factor that distinguishes this case from prior
authorities on “pick off” is the existence of the Chakhalyan
judgment. Pursuant to that judgment, the City had a legal
obligation to reimburse plaintiffs for the solid resource fee
overcharges they had paid. Moreover, that legal obligation
applied equally to any other persons subjected to solid resource
fee overcharges.
Plaintiffs point out the Chakhalyan judgment requires the
City to “routinely monitor its billing system, policies and
practice,” and “in the event [the City] identifies future [solid
resource fee] Overcharges through such monitoring, the City will
promptly and fully reimburse any persons so identified . . . .”
Plaintiffs argue the City did not identify them as persons
subjected to overcharges through such routine monitoring,
rather, the City discovered plaintiffs because of their anticipated
involvement in the Cunningham litigation.
The Chakhalyan settlement and judgment do not define
“routinely monitor” or specify exactly what form such monitoring
will take. Further, while the measures identified in Exhibit G
include items that would appear to be or would facilitate “routine
monitoring,” the City offered no evidence establishing it learned
of the plaintiffs through any specific measures identified in that
exhibit. However, we do not narrowly interpret the Chakhalyan
settlement and judgment as requiring the City to reimburse solid
resource fee overcharges only when it discovers overcharges
through the City’s internal measures.
28
The settlement’s express purpose is to halt the overcharges,
ensure they cease, and compensate those overcharged at the time
of the settlement and in the future. To deem credits made to
individuals the City discovers through threats of litigation to be
purely voluntary, and outside the scope of the Chakhalyan
settlement’s injunctive relief provision, would be entirely
inconsistent with the stated objectives of the stipulation. We can
only understand the stipulated settlement as a whole by
interpreting “persons identified” through “such monitoring”
as broad enough to include persons who threaten litigation or
otherwise become known to the City through some form of
adversarial process.
Pursuant to the Chakhalyan judgment, the City has a legal
obligation to reimburse DWP customers against whom it has
improperly assessed solid resource fee overcharges. By crediting
the plaintiffs’ accounts, the City was complying with the
obligations it agreed to in the resolution of Chakhalyan. The
evidence further established it had done so for 852 other DWP
customers between January and June 2013. In La Sala, the
defendant offered to provide relief only to the representative
plaintiffs. Any other putative class members would have no
recourse except to file their own suits. The same was true in
Kagan. In contrast, here, the Chakhalyan judgment created a
remedy for the harm alleged in plaintiffs’ complaint, and the City
has afforded that remedy to plaintiffs and many others.
The policy concerns underlying the pick off exception are
the desire to avoid “revolving door” litigation, whereby the
defendant uses a tactic to avoid a class action, to the detriment of
putative class members who cannot afford to initiate or join
litigation, and inviting a waste of judicial resources. (Roper,
29
supra, 445 U.S. at p. 339; La Sala, supra, 5 Cal.3d at p. 873.)
Here, the circumstances paint a very different picture. While
this suit was pending with its original plaintiff, another
previously-filed class action suit alleging identical claims was
pending and was resolved. The resolution of Chakhalyan led to a
binding judgment affording prospective relief for future
claimants. Consistent with this judgment, the City provided
plaintiffs complete relief, less than a year after the court entered
judgment in Chakhalyan.
Pursuant to that same judgment, the City must provide the
same relief to any other overcharged person – the remedy was not
limited to plaintiffs alone. It did so 854 times between January
and June 2013. There is no evidence or basis to infer that, with
the arguable exception of plaintiffs, the other 852
reimbursements the City made were in response to actual or
threatened litigation. Applying the pick off exception to mootness
here does not address the policy concerns underlying the
exception in the way it did in La Sala, Kagan, Geraghty, or
Roper. (See Cruz v. Farquharson (1st Cir. 2001) 252 F.3d 530,
533, 535-536 (Cruz) [after plaintiffs filed suit based on agency
delay in reviewing residency petitions, agency processed the
petitions, then sought dismissal of the complaint as moot; court
found plaintiffs had received complete relief, case was moot,
plaintiffs did not establish that agency had pattern of delaying
review until subjected to suit]; Sze v. I.N.S. (9th Cir. 1998) 153
F.3d 1005, 1008-1010.)
Wallace v. GEICO General Ins. Co. (2010) 183 Cal.App.4th
1390 (Wallace), offers a helpful contrast. In Wallace, the plaintiff
filed a class action suit against GEICO, alleging the insurance
company wrongly denied coverage for body shop repairs it
30
considered to be above prevailing labor rates. Several months
before the plaintiff filed her complaint, GEICO entered into a
stipulation and consent order with the California Department of
Insurance regarding the company’s refusal to reimburse labor
rates above what it deemed the prevailing rate. (Id. at p. 1394.)
Pursuant to the consent order, GEICO was ordered to cease and
desist from violating certain Insurance Code provisions and
regulations. It also agreed to conduct an internal audit of
complaints it had received regarding labor rates to identify and
reimburse insureds or claimants who had been subjected to
GEICO’s refusal to reimburse at full rates. The consent order
required GEICO to reimburse affected insureds or claimants who
complained during a 60-day period set forth in the order. (Ibid.)
Two months after the plaintiff filed her lawsuit, GEICO
sent her a check reimbursing her in the amount she had paid out
of pocket to repair her vehicle. A letter accompanying the check
indicated GEICO made the payment in accordance with the
consent order. (Id. at p. 1395.) GEICO then sought summary
judgment, arguing the plaintiff’s individual claims were moot and
she lacked standing to pursue her class claims. The trial court
concluded the plaintiff did not have standing to serve as a class
representative. When the plaintiff failed to proffer a new class
representative the court struck the class allegations. (Id. at
p. 1396.)
On appeal, the plaintiff argued the “pick off” exception
should be applied to allow her to continue as a representative
plaintiff for a class. (Wallace, supra, 183 Cal.App.4th at pp.
1396-1397.) In response, GEICO argued it did not “pick off” the
plaintiff by offering her individual compensation after she filed
her suit. The company maintained it paid her pursuant to the
31
consent order with the Department of Insurance, to which it had
agreed before the plaintiff filed her suit. GEICO further
contended the policy underlying the pick off cases did not apply
because, given the consent order, there was no risk that
satisfying the plaintiff’s claim would frustrate the objectives of
class actions or open a revolving door of litigation.
The reviewing court rejected this argument based on its
interpretation of the consent order. The court concluded the
order was narrow and required GEICO to reimburse only a
limited group of individuals that did not include the plaintiff.
The court reasoned there might be other persons in the proposed
class who would not be entitled to reimbursement under the
terms of the consent order. (Wallace, at p. 1403.) As a result, the
“pick off” exception was applicable: “Because GEICO was not
required to reimburse [the plaintiff] under the terms of the
consent order, it voluntarily offered to settle with her after she
filed a class action lawsuit. The pickoff cases establish that in
such a situation, [the plaintiff] does not automatically lose
standing to act as a representative plaintiff.” (Id. at p. 1403.)
Issues of whether the plaintiff could adequately represent the
class, and whether there was a class to represent given the
consent order, were to be resolved in connection with class
certification proceedings. (Wallace, at p. 1403, fn. 11.)
Wallace highlights the critical distinguishing factors in this
case. The Chakhalyan settlement and corresponding judgment is
not as narrow as the consent order in Wallace. Unlike the
defendant in Wallace, the City had an obligation to reimburse the
plaintiffs once it discovered they had improperly been charged
the solid resource fee. The reimbursements were not a voluntary,
gratuitous payment whose only purpose was to avoid class action
32
litigation. Further, by the time the second amended complaint
was filed, the City had already reimbursed the plaintiffs for the
overcharges and the Chakhalyan injunction was already in effect.
This case is therefore unlike Wallace.
This case also differs from Kagan, in which the plaintiff
was not necessarily rendered unfit to represent a class despite
the defendant’s provision of relief to her before she filed her
complaint. In Kagan, the pre-filing remedy the defendant offered
the plaintiff did not moot her claims because of the express
statutory framework at issue and the defendant’s failure to
provide all of the relief the plaintiff demanded, including class-
wide relief. Even under the specific CLRA framework at issue,
the Kagan court agreed “that a consumer who has notified a
prospective defendant of an individual grievance and has
obtained his or her requested relief cannot subsequently bring
either an individual or class action under the Act. However, this
is not simply because the consumer no longer ‘suffers any
damage’ but because the prospective defendant has remedied the
contested practices. Similarly, a prospective defendant receiving
notice of a grievance which affects a class of consumers can avert
a subsequent class action only by remedying the contested
practices as to all affected consumers.” (Kagan, supra, 35 Cal.3d
at p. 591.)
We thus disagree with plaintiffs’ contention that evidence
of a defense motive to avoid class litigation is the touchstone of
the pick off exception. The critical issues are whether the
defendant’s actions are voluntary, rather than compulsory, and
whether the relief provided is to the plaintiff alone or to the
entire class the plaintiff seeks to represent. Here, before
plaintiffs’ second amended complaint was filed—their first formal
33
entry into the litigation as parties—the Chakhalyan judgment
had created a mandatory remedy that applied to plaintiffs and
others, and with which the City complied by reimbursing
plaintiffs and others. (See e.g., Renne v. Geary (1991) 501 U.S.
312, 320 [“[T]he mootness exception for disputes capable of
repetition yet evading review . . . will not revive a dispute which
became moot before the action commenced.”].)
III. Conclusion
The unique circumstances of this case dictate the result.
The litigation was originally contemporaneous with Chakhalyan.
Cunningham’s claims were dismissed not because he was picked
off, but because he was a member of the Chakhalyan class and he
did not object to or exclude himself from the class. The
Chakhalyan stipulated settlement and judgment bound the City
to provide relief to future persons improperly charged the solid
resource fee.
In this context, the pick off exception to mootness does not
fit. Simply put, the City did what it was supposed to do under
the Chakhalyan settlement: it reimbursed the plaintiffs for the
improperly charged and paid fees. Plaintiffs’ claims are moot.
The benefits afforded to the plaintiffs were similarly afforded to
852 other people between January and June 2013. There is no
basis to conclude the pick off exception should be applied to
prevent the City from depriving other potential members of the
class of the benefits of the litigation. The benefits plaintiffs
received resulted from the Chakhalyan litigation and they are
equally available to any other potential members of the putative
class plaintiffs seek to represent.
34
Plaintiffs assert that if they are not allowed to continue
representing a class in prosecuting the claims alleged in their
complaint, the City will persist in unlawfully charging the solid
resource fee. They contend the City should not be allowed to
avoid a class action suit into the indefinite future on the basis of
the Chakhalyan settlement, simply by paying off every new
plaintiff who appears.
We do not decide how a future court should characterize a
new complaint, initiated after Chakhalyan, in which a plaintiff
asserts harm in the form of an unlawful solid resource fee
overcharge. Several years have passed since the Chakhalyan
judgment was entered. A court may reasonably view a new claim
of solid resource fee overcharges in a different light than the
claims in plaintiffs’ complaint. Whether a City reimbursement of
a hypothetical future claim should be characterized as a “pick off”
so that the plaintiff may continue prosecuting class claims is an
issue that must be decided on its own merits, should it arise.
The plaintiffs before us have no further personal stake in
the litigation. A court can award them no further remedy beyond
what they have already received. Pursuant to the Chakhalyan
judgment, the City must provide the same remedy to other
putative class members; there is evidence that it has done so.
There is no indication that the City has established a pattern of
waiting until a customer sues or threatens to sue before it
complies with the Chakhalyan obligations. (Compare Cruz,
supra, 252 F.3d at p. 535 [“One swallow does not a summer
make. . . . .”] and Demmler v. ACH Food Companies, Inc.
(D. Mass. 2016) 2016 WL 4703875, *8 [summary judgment
granted where plaintiff had received full relief; rejecting pick off
argument, noting no evidence that defendants had a pattern of
35
tendering full relief to plaintiffs before certification] with Dozier
v. Haveman (E.D. Mich. 2014) 2014 WL 5483008, *6, 13 [applying
pick off theory where defendant had mooted three sets of
representative plaintiffs; court found it significant that there
appeared to be no shortage of class members willing to
intervene].)
Applying the “pick off” exception to mootness under these
circumstances would not advance the policies underlying the
exception: avoiding the frustration of the objectives of class
actions and preventing the waste of resources that would occur
with successive suits claiming similar injuries. (Roper, supra,
445 U.S. at p. 339.)
The trial court properly granted summary judgment on the
ground that plaintiffs’ claims are moot.
DISPOSITION
The trial court judgment is affirmed. Respondent is to
recover its costs on appeal.
CERTIFIED FOR PUBLICATION
BIGELOW, P.J.
We concur:
RUBIN, J.
FLIER, J.
36