Plantier v. Ramona Municipal Water District CA4/1 ( 2022 )

Filed 10/24/22 Plantier v. Ramona Municipal Water District CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
EUGENE G. PLANTIER, as Trustee, D079529
etc. et al.,
Plaintiffs and Appellants,
(Super. Ct. No.
v. 37-2014-00083195-CU-BT-CTL)
RAMONA MUNICIPAL WATER
DISTRICT,
Defendant and Respondent.
APPEAL from an order of the Superior Court of San Diego County,
Gregory W. Pollack, Judge. Affirmed.
Patterson Law Group, James R. Patterson and Jennifer M. French;
Carlson Lynch and Todd D. Carpenter for Plaintiffs and Appellants Eugene
G. Plantier, as Trustee of the Plantier Family Trust, Progressive Properties
Incorporated and Premium Development, LLC.
Procopio, Cory, Hargreaves & Savitch, John D. Alessio, Adriana R.
Ochoa and Gregory V. Moser for Defendant and Respondent.
Hanson Bridgett, Adam W. Hofmann and Sean G. Herman for
California Association of Sanitation Agencies as Amicus Curiae on behalf of
Defendant and Respondent.
Appellants Eugene G. Plantier as trustee of the Plantier Family Trust,
Progressive Properties Incorporated (at times, Progressive), and Premium
Development, LLC (at times, Premium Development) brought a putative
class action against respondent Ramona Municipal Water District (District),
seeking declaratory and monetary relief for District’s alleged violation of
Proposition 218 (Cal. Const., art. XIII D, § 6 1) in its method of setting sewer
charges. They appeal an order in which the trial court decertified their class
action on grounds of an irreconcilable conflict among class members, based in
part on the court’s sua sponte reconsideration of a 2015 order granting class
certification. Plaintiffs contend the court abused its discretion in
reconsidering the class certification order. They further contend the court
erred because (1) they pleaded that the sewer service charges exceeded the
funds required to provide the service, and thus the entire class was
overcharged; (2) there was no conflict of interest among class members; and
(3) District did not meet its burden on its decertification motion. Plaintiffs
finally contend the court abused its discretion by failing to permit them to file
a renewed class certification motion or amend the class definition or claims.
We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
District provides water and wastewater (sewer) services to businesses
and residents in an unincorporated area of San Diego County. (See Plantier
v. Ramona Municipal Water Dist. (2019) 7 Cal.5th 372, 376 (Plantier).) It
1 References to section 6 are to article XIII D of the California
Constitution.
2
charges for sewer service based on estimated wastewater capacity needs, flow
and strength for different customer types or classes. District uses an
“Equivalent Dwelling Unit” (EDU) system, levying fixed sewer rates based on
the number of EDU’s assigned to the particular type of development. An
EDU is a measure representing the daily usage of a typical single family
home (200 gallons per day of wastewater flow and 200 milligrams per liter
each of biological oxygen demand and suspended solids). EDU’s are assigned
to each property based on the type of use and the property’s estimated
wastewater system capacity needs. Each parcel connected to the sewer
system is charged for service by multiplying the fixed sewer service charge
per EDU by the number of EDU’s assigned to the parcel.
In November 2013, Plantier and Progressive presented a claim against
District, attaching and incorporating a draft complaint “stat[ing] the factual
allegations upon which th[e] claim [was] based.” The complaint alleged that
District’s EDU system “does not meet the requirements set forth in . . .
Section 6(b)(3) . . . and related statutory requirements” and thus the fees
were unlawful and invalid. It alleged the sewer service charge was subject to
section 6(b)(3), and in violation of that section, the charge was “imposed
based solely on EDU[’]s, without regard to actual wastewater use, a
property’s proportional burden on the wastewater system, or the actual cost
of providing a property with wastewater service.” The complaint alleged that
the lack of a rational relationship between the sewer charge and actual
wastewater use “resulted in the systematic overcharge of wastewater
consumers for whom the proportional cost of providing their property with
wastewater service is less than their EDU-based [sewer charge].” It also
alleged District’s connection fees were invalid, as they were also “imposed on
a per-EDU basis without regard to the cost of ‘the physical facilities
3
necessary to make a . . . sewer connection’ ” and thus did not meet the
definition of Government Code section 66013, subdivision (b).
In January 2014, after District rejected the claim, plaintiffs filed a
putative class action complaint alleging in part that District’s EDU billing
system violated Proposition 218. The operative first amended complaint,
brought on behalf of all District customers who paid a sewer service charge
on or after November 22, 2012, sought declaratory relief as well as damages
in the form of a refund of the assertedly unlawful charges. Plaintiffs
repeated their allegations concerning how District’s charges violated section
6(b)(3). They again alleged that the lack of a rational relationship between
the sewer charge and actual wastewater use “resulted in the systematic
overcharge of wastewater consumers for whom the proportional cost of
providing their property with wastewater service is less than their EDU-
based [sewer charge].”2
Plaintiffs successfully moved for and obtained certification of the
requested class before Judge Timothy Taylor. In part, plaintiffs argued
District’s liability could be determined “ ‘in one stroke’ ” because it had
uniformly applied its arbitrary EDU schedule and EDU-based charges to all
parcels connected to the sewer system during the class period, the charges
were assessed in the same manner, and all of those charges violated section
6(b)(3). Judge Taylor ruled common issues—namely, whether the EDU-based
2 Plaintiffs dropped their allegations concerning Government Code
section 66013 with regard to District’s connection fees.
4
charges violated section 6(b)(3)—predominated over individual issues.3
Judge Taylor ruled the proposed class was ascertainable and numerous,4
3 On this point, Judge Taylor’s ruling states: “Plaintiffs’ lawsuit is based
on the contention that all [sewer charges] assessed on all parcels in the
[District] violate . . . [s]ection 6(b)(3) . . . given the [sewer charges] are based
on an EDU system that is not rationally related to actual water use. . . . The
common issue of whether [District’s] EDU-based [sewer charge] violates . . .
[s]ection 6(b)(3) . . . will predominate over individual issues. The evidence
presented in the motion preponderates in favor of a finding that class-wide
issues will predominate. [¶] In this respect, [District] uniformly applied its
EDU-based [sewer charges] to all parcels connected to the sewer system
throughout the class period. . . . All parcels are given an EDU value based
on the Schedule of EDU[’]s. . . . All parcels are then assessed the fixed
[sewer charge] multiplied by the number of EDU[’]s assigned to the parcel.
. . . The [sewer charge] is assessed the same in both the Santa Maria and
San Vicente Sewer Service Areas, with the parcels assigned a number of
EDU[’]s, and the [sewer charge] is assessed based on the schedule of EDU[’]s.
. . . And there is no difference on how the [sewer charges] for each service
area are billed. . . . [District’s] contention that the Bartle Wells report
provided a rational basis under Prop[osition] 218 for the EDU-based [sewer
charges] is susceptible to class-wide determination ‘in one stroke.’ [(]Wal-
Mart v. Dukes [(2011)] 131 S. Ct. 2541, 2551.[)]”
4 The court ruled: “[District] has records of the parcel number and owner
name for each of the parcels subject to the [sewer charge] during the class
period. . . . The parcel owners should be identifiable through public records
of ownership. Any need to ascertain the identity of those who actually paid
the [sewer charge] may be obtained through notice to the parcel owners or
other discovery modalities. [¶] The proposed class is numerous. There were
1750 parcels in the Santa Maria Sewer Service Area and 5141 parcels in the
San Vicente Sewer Service Area in the July 2014 assessment roll.”
5
that plaintiffs were adequate class representatives,5 and that the plaintiffs’
claims were typical of the class, as plaintiffs and the class members were
assigned EDU values and assessed sewer charges based on that value. Judge
Taylor found no present conflict of interest among the class members, ruling:
“To the extent there is a potential for conflict among the class members, the
matter may be resolved later. A mere potential conflict is not a ground for
denying certification. . . . However, if a conflict in fact arises, the class action
may be decertified.”
After a bench trial, the court ruled plaintiffs failed to meet an
exhaustion of administrative remedies requirement in Proposition 218
because none of them had participated in a Proposition 218 rate increase
hearing. (Plantier, supra, 7 Cal.5th at p. 379.) This court reversed, and the
California Supreme Court in Plantier affirmed that decision. (Id. at p. 390.)
5 The court ruled: “[Plaintiffs] declare that they have paid the [sewer
charges] based on [District’s] EDU system during the class period. . . . They
also state that they understand the claims in this lawsuit, the nature of those
claims, and that they ‘have to cooperate with my attorneys and treat the
interests of the proposed class members the same as I would my own.’ . . .
They declare that they are ‘willing to serve as a representative of other
persons who have paid’ the [sewer charge] ‘in this lawsuit by participating in
any way that is necessary to act in the best interests of the class.’ . . . They
acknowledge that they cannot have any legal conflicts with the class. . . .
The class representative, through qualified counsel, must be capable of
‘vigorously and tenaciously’ protecting the interests of the class members. . . .
They make this showing. Plaintiffs may represent the customers in the San
Vicente Sewer Service Area [even though they are rate payers in the Santa
Maria Sewer Service Area] since [District] admits it assesses the EDU-based
[sewer charge] in the same manner in both the San Vicente and Santa Maria
Sewer Service Areas. . . . [District’s] perceptions regarding the true motives
of Mr. Plantier . . . may ultimately impact the level of success enjoyed by the
class, but do not prevent certification.”
6
Following remand, plaintiffs challenged Judge Taylor and the matter
was reassigned to Judge Gregory Pollack, who notified the parties the court
had concerns over a conflict of interest between class members who
underpaid for sewer services and those who overpaid. Judge Pollack
eventually granted District leave to file a motion to decertify the class.
In its decertification motion, District argued the calculation of sewer
service charges was a “zero-sum” scenario. It argued the appellants’ class
“includes both harmed ratepayers who were allegedly overcharged, and
unharmed—indeed, benefitted—ratepayers who (if Plaintiffs’ theory is
correct) were allegedly undercharged. Courts have consistently found that
grouping harmed and unharmed persons into a class definition makes the
class imprecise, overbroad, and unable to meet the ascertainability prong
necessary for maintaining a class action.” District maintained the plaintiffs’
proportionality challenge, as well as their claim for a refund, created fatal
conflicts of interest among the class members, defeating any claim that they
had a well-defined community of interest. According to District, the proposed
relief—refunding charges to overpaying customers—would permit it to seek
back charges from customers who underpaid, underscoring the current and
potential conflicts. It argued that awarding all charges paid since 2012
would amount to an over $50 million judgment that District would have to
pay by assessing charges to current ratepayers, creating another conflict.
District also argued plaintiffs failed to show sufficient causation for liability
of damages to justify certification, and they could not show they had suffered
overcharges or that their claims were consistent with all other ratepayers,
thus they were inadequate class representatives. Finally, they argued
because Plantier and Orrin Day, the owner of Progressive and Premium
7
Development, were commercial property owners who did not live in Ramona,
their interests were antagonistic to the majority of class members.
District supported its motion with declarations from Alex Handlers, a
principal at an independent public financial advisory firm with expertise in
water and sewer rates and finance, Michael Metts, a professional engineer at
a firm with a wastewater practice and Craig Schmollinger, District’s acting
general manager and chief financial officer. It attached deposition excerpts
from various putative class members, some of whom testified they would be
upset if their sewer rates increased as a result of the lawsuit, and would want
their lawyers to stop prosecuting the lawsuit if that were the case.
In opposition, plaintiffs argued District did not identify new law or
evidence of changed circumstances to justify decertifying the class. They
asserted District did not present evidence, much less new evidence, showing
an actual conflict among the class or showing any class member had been
undercharged during the class period. Further, plaintiffs argued District
could not meet its burden to prove compliance with Proposition 218, in part
because class members were charged over $8 million more than the cost of
the service provided during the class period. Plaintiffs maintained District
made the same “future conflict” argument in opposing their original class
certification motion by way of the zero-sum game theory of undercharges and
overcharges, its assertedly new evidence submitted via declaration merely
repeated the point, and that such speculative, future conflicts were an
insufficient basis to decertify the class. They argued that District’s future
conflict argument failed because District collected inflated or excess
revenues. Finally, plaintiffs argued the minority class members’ interests
could not defeat the right of the majority of customers to enforce Proposition
218; that class members had no legitimate interest in furthering continuing
8
violations of Proposition 218. Plaintiffs based their excess revenue
arguments in part on sworn declarations from consultant and accountant
Daniel Werner and consultant Christine DeMaster.
In reply, District objected to both the entirety and portions of
DeMaster’s and Werner’s declarations on grounds, among others, of
relevance, hearsay, and lack of expert qualifications. In part, it argued the
court should disregard plaintiffs’ theory that its sewer service charges
exceeded the funds required to provide the service—a violation of section
6(b)(1)—because it was a new legal theory not pleaded in their operative
complaint. District also argued plaintiffs’ theory went beyond its government
claim, which was based on the proportionality requirement of section 6(b)(3).
It argued plaintiffs did not rebut its assertion that the class was
unascertainable because it included harmed and unharmed class members,
nor did they meet their burden to establish causation for liability and
damages for all class members.
The court decertified the class. Sustaining District’s objections to the
DeMaster and Werner declarations and granting District’s requests for
judicial notice, it ruled the class as certified created an irreconcilable conflict
9
among class members.6 It found the single common issue—whether
District’s EDU methodology was legally permissible under section 6(b)(3)—
did not predominate over the many individual issues. At the same time the
court ruled on District’s decertification motion, it sua sponte reconsidered
Judge Taylor’s 2015 order granting class certification, considering only the
evidence before the court in 2015. Judge Pollack specifically ruled he had the
inherent authority to do so as long as he gave the parties an opportunity to
fully brief the matter, and considered only the evidence originally submitted
to Judge Taylor. Judge Pollack ruled Judge Taylor’s class certification order
was erroneous: “Changing the methodology for determining proportionate
allocation of sewer charges does not simply create ‘[a] mere potential conflict’;
it creates an absolute, irreconcilable conflict ab initio. . . . [I]t is evident that
Judge Taylor failed to appreciate the certainty of the conflict created by his
certifying a class consisting of ‘Ramona Municipal Water District customers
6 In part, the court reasoned: “[T]he fatal defect in the previous
certification of the class arose from a failure to fully appreciate that Plantier’s
challenge to the status quo method for determining proportionate sewer
system charges for individual payors created an inherent and irreconcilable
conflict between those class members whose proportionate shares go up and
those class members whose proportionate shares necessarily go down, i.e.,
since the ‘pie’ from which proportionality must be allocated always totals 100
[percent], a ‘zero[-]sum’ game is created if any payer’s proportionate share is
changed. If one class member payer’s proportion is reduced, necessarily other
class member payor(s)’ proportion(s) must increase. A lawsuit like this,
premised upon ‘robbing Peter to pay Paul’ is inherently improper when Peter
and Paul are both plaintiffs in the same lawsuit (and represented by the
same law firm). Clearly, a challenge to the status quo as to how
proportionate allocation is calculated necessarily creates winners and losers
among class members, with the winners necessarily gaining at the direct
expense of the losers. It bears repeating: a lowering of a class member’s
proportionate sewer charges necessarily means an increase in other class
member(s)’ proportionate sewer charges.”
10
who paid a sewer service charge on or after November 22, 2012.’ It is an
abuse of discretion to certify a class action where there is ‘evidence of a
conflict among proposed class members that goes to the very subject matter
of the litigation.’ [Citation.] ‘[l]f the conflict of interest actually arises and it
is irreconcilable, the class action may be decertified.’ [Citation.] This is such
a case. [¶] Similarly, because some class members have been allegedly
harmed by [District’s] use of the subject EDU assignment method, others
have necessarily benefitted based upon the zero-sum scenario, thereby
creating a class containing both 'harmed’ and ‘unharmed’ members. Courts
have ‘consistently denied certification where class definitions include both
harmed and unharmed members.’ [Citation.] It should be noted that other
than claiming that [District’s] methodology is illegal, Plantier has never
proposed a specific alternative methodology from [which] the ‘winners and
losers’ and ‘harmed or unharmed’ class members could be ascertained and
differentiated.”
Judge Pollack found plaintiffs’ argument concerning excess revenues
flawed in part because it stated a violation of section 6(b)(1), a theory not
pleaded in their operative complaint: “The original governmental tort claim,
the original complaint, and the legally operative first amended complaint . . .
contain no facts or allegations that [District’s] sewer service charges exceeded
the total cost of providing services, and, in fact, they do not even mention
[section] 6(b)(1). Since the filing of this lawsuit on January 14, 2014, the
thrust of Plantier’s attack has been under the proportionality requirement
found in [section] 6(b)(3).” Judge Pollack ruled for that reason the theory was
not cognizable on the merits of class certification, but even if it were, it would
not resolve the conflict among class members. Judge Pollack ruled that
permitting class counsel at that stage to pare down the class to only members
11
whose proportionate allocations would be reduced would likely result in the
law firm’s ethical conflict of interest “since such would constitute
representation of clients (the ‘winners’) in an action adverse to the interests
of the abandoned former clients (the ‘losers’) in the same action.”
Plaintiffs filed this appeal.
DISCUSSION
I. Application of the Death Knell Doctrine
We begin by addressing District’s contention that the trial court’s order
decertifying the class is not an immediately appealable “death knell” order.
Pointing to case authority stating the death knell concept is “tightly defined
and narrow” (Farwell v. Sunset Mesa Property Owners Assn., Inc. (2008) 163
Cal.App.4th 1545, 1547), District maintains the death knell doctrine is
inappropriate in cases where individual actions can be filed and pursued, and
cites authorities declining to apply the doctrine where the order did “not
produce a terminal result . . . .” (Haro v. City of Rosemead (2009) 174
Cal.App.4th 1067, 1070 (Haro); see also Naranjo v. Spectrum Security
Services, Inc. (2019) 40 Cal.App.5th 444, 478 [ruling was “ ‘not . . .
tantamount to dismissal’ ”], affd. in part & revd. in part in Naranjo v.
Spectrum Security Services, Inc. (2022) 13 Cal.5th 93, 126.) According to
District, because the plaintiffs here incurred sewer service charges that are
more than nominal (approximately $50,764 for Plantier, $46,521 for
Progressive, and $53,748 for Premium Development), they have a financial
incentive to maintain the action and thus the doctrine does not apply.
Notably, District has not moved to dismiss the appeal on this ground; we
conclude in any event there is no basis to do so.
The death knell doctrine is an exception to the “one final judgment”
rule, under which an appeal may be taken only from a final judgment in the
12
entire action. (In re Baycol Cases I and II (2011) 51 Cal.4th 751, 754, 756,
757; see Fierro v. Landry’s Restaurant Inc. (2019) 32 Cal.App.5th 276, 280,
fn. 4.) The doctrine “allows an immediate appeal of an order that entirely
terminates class claims while allowing individual claims to proceed.” (Fierro,
at p. 280, fn. 4.) In fact, the “preservation of individual claims is an essential
prerequisite to application of the death knell doctrine . . . .” (Baycol, at p.
754.) “Because such an order ‘effectively [rings] the death knell for the class
claims,’ it is essentially ‘a final judgment on those claims.’ ” (Fierro, at p. 280,
fn. 4, citing Baycol, at p. 757 & Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695,
699 [order denying class certification “is tantamount to a dismissal of the
action as to all members of the class other than plaintiff”].) The order here—
decertifying the entire class—is such an appealable death knell order.
District’s cited authorities do not convince us otherwise. In Naranjo v.
Spectrum Security Services, Inc., supra, 40 Cal.App.5th 444, the Court of
Appeal, relying on In re Baycol Cases I and II, supra, 51 Cal.4th 751, held an
order was not immediately appealable under the death knell doctrine where
the trial court certified meal break, waiting time penalty, and itemized wage
statement penalty classes, but denied certification for a rest break class.
(Naranjo, at p. 478.) That ruling was “ ‘not . . . tantamount to dismissal’ ” of
the class claims. (Ibid.) Naranjo confirmed that “ ‘only an order that entirely
terminates class claims is appealable.’ ” (Ibid., quoting Baycol, at pp. 757-
758.) District does not explain what aspect of Judge Pollack’s order retains
part of the class as in Naranjo, nor can it, as the order eliminated those
claims in their entirety.
Haro, supra, 174 Cal.App.4th 1067 involved an action under the Fair
Labor Standards Act of 1938 (FLSA). (Id. at p. 1070.) That law permits
actions brought “ ‘by any one or more employees for and in behalf of himself
13
or themselves and other employees similarly situated’ ” and further contains
an “ ‘opt-in’ ” provision prohibiting an employee from being a FLSA action
plaintiff “unless he gives his consent in writing . . . and such consent is filed
in the court in which such action is brought.” (See Haro, at p. 1071, quoting
title 29 of the United States Code section 216(b), italics omitted.) Because of
the special opt-in feature, the plaintiffs’ challenge relating to their
compensation under the FLSA could not as a matter of law be brought as a
class under California law, as that feature was “irreconcilable” with a class
action. (Haro, at pp. 1071, 1075 [an “FLSA action has a procedural
jurisprudence distinct from that which governs class actions”].) It was in this
specialized context that the Court of Appeal dismissed the appeal from the
order denying class certification, since, among other reasons, the order was
not the death knell of the appellants’ action: “The order does not produce a
terminal result, i.e., there [was] no reason why the action cannot go forward
with appellants as plaintiffs” and specifically, “there [was] nothing to prevent
this action going forward as an opt-in, collective FLSA action.” (Id. at p.
1078, italics added.) Thus, there was “no question that this FLSA action as it
is presently constituted can go forward to trial,” that is, as an action with
multiple employees as plaintiffs, so long as they opted in. (Ibid.)
Similarly, Munoz v. Chipotle Mexican Grill (2015) 238 Cal.App.4th 291involved an action for civil penalties under the Private Attorneys General Act
(PAGA), under which plaintiffs do not sue as individuals, but as
representatives of the state and on behalf of similarly aggrieved employees.
(Id. at pp. 294, 310.) The appellate court dismissed the appeal from an order
denying class certification because the PAGA claims on behalf of multiple
employees remained (with the potential for significant civil penalties if
successful), and thus the death knell doctrine did not apply. Finding the
14
unique circumstances there (id. at p. 310) similar to Haro, supra, 174
Cal.App.4th 1067, Munoz held the plaintiffs had “ample financial incentive to
pursue the remaining representative claims under the PAGA and, thereafter,
pursue their appeal from the trial court’s order denying class certification.”
(Munoz, at p. 311.) Thus, “[d]enial of class certification where the PAGA
claims remain in the trial court would not have the ‘legal effect’ of a final
judgment under the reasoning of Baycol and Daar.” (Ibid., fns. omitted.)7
Unlike the FLSA action in Haro or the PAGA action in Munoz, absent
class certification, the present action against District cannot proceed with the
individuals acting on behalf of other unnamed class members. The order
decertifying the class in this case does not have the special circumstances of
Haro and Munoz; it is therefore immediately appealable.
II. Court’s Authority to Sua Sponte Reconsider the Class Certification Order
Plaintiffs contend the trial court abused its discretion in sua sponte
reconsidering Judge Taylor’s factual finding in his prior certification order
concerning the asserted conflict of interest among class members. According
7 Farwell v. Sunset Mesa Property Owners Assn., Inc., supra, 163
Cal.App.4th 1545 is entirely inapposite, as it involved an appeal by plaintiffs
from an order sustaining a demurrer to their action with leave to amend
against a defendant class. (Id. at pp. 1547, 1549; see Williams v. Impax
Laboratories, Inc. (2019) 41 Cal.App.5th 1060, 1070 [distinguishing Farwell].)
Farwell dismissed the appeal, in part holding the order neither demolished a
class action nor did it dispose of class claims, so it was not appealable as a
death knell order. (Farwell, at p. 1552; see Williams, at p. 1070.) Farwell
also explained that “the gist of the death knell doctrine is that the denial of
class action certification is the death knell of the action itself, i.e., that
without a class, there will not be an action or actions, as is true of cases when
the individual plaintiff’s recovery is too small to justify pursuing the action.”
(Farwell, at p. 1552.) We do not read Farwell’s use of an example as a
limitation on the doctrine or a holding that for the death knell doctrine to be
applicable, the individual plaintiffs’ potential recovery must be de minimis.
15
to plaintiffs, there is no authority for the court’s reconsideration of Judge
Taylor’s factual findings, as reconsideration is authorized when “ ‘there has
been a change of law’ ” pursuant to Code of Civil Procedure section 1008,
subdivision (c). Plaintiffs also complain the court abused its discretion given
the prejudice they have suffered from delay, pointing to the procedural
history of the case after remand and the various ex parte applications and
continuances, while at the same time conceding “the parties agreed to extend
the hearing on [District’s] motion multiple times from December 2020 to July
2021.”8 They assert they spent thousands of dollars in expert witness fees
and attorney fees and costs associated with their opposition, and argue
“[a]llowing reconsideration of the class certification order over six years later
[after they filed the action], and over 500 days after the trial court initially
expressed concern with the ruling, is fundamentally unfair and an abuse of
discretion.”
Plaintiffs’ proposed limitation on the court’s authority to sua sponte
reconsider its order is based on LeFrancois v. Goel (2005) 35 Cal.4th 1094.
They assert, citing LeFrancois, at page 1097, that in its opinion, the
California Supreme Court had “ ‘accepted’ ” the Court of Appeal’s finding
“ ‘that notwithstanding either [Code of Civil Procedure] section 1008 or [Code
of Civil Procedure] section 437c[, subdivision](f)(2), [the second judge] had
inherent power to exercise his “constitutionally derived authority to
8 Plaintiffs also assert that District filed its decertification motion
beyond the court’s deadline for doing so, but cite no authority demonstrating
the court erred by later resetting the motion hearing date at District’s ex
parte request. We disregard assertions unsupported by authority or reasoned
legal argument. (Orange County Water Dist. v. Sabic Innovative Plastics US,
LLC (2017) 14 Cal.App.5th 343, 383 [“ ‘ “The absence of cogent legal
argument or citation to authority allows this court to treat the contention as
waived” ’ ”]; DP Pham, LLC v. Cheadle (2016) 246 Cal.App.4th 653, 674.)
16
reconsider the prior interim ruling and correct an error of law on a dispositive
issue.” ’ ” Plaintiffs say the high court’s “determination makes sense given
the language in Code of Civil Procedure section 1008, subdivision (c), which
allows a court to reconsider a prior order when ‘there has been a change of
law.’ ” This argument appears to suggest that LeFrancois somehow endorsed
a limitation on a lower court’s authority to reconsider prior orders to
circumstances involving new or changed law.
The argument both misconstrues and misunderstands LeFrancois’s
holding. There, the California Supreme Court accepted the Court of Appeal’s
finding that a party’s second summary judgment motion was based on the
same law and evidence, and thus violated Code of Civil Procedure sections
1008 and 437c. (LeFrancois v. Goel, supra, 35 Cal.4th at p. 1099.) It went on
to review the significance of that finding on the trial court’s authority to
consider the motion. (Ibid.) LeFrancois held that while Code of Civil
Procedure sections 1008 and 437c, subdivision (f)(2) limit the circumstances
in which parties’ may seek reconsideration, they “do not limit the court’s
ability, on its own motion, to reconsider its prior interim orders so it may
correct its own errors.” (LeFrancois, at p. 1107; accord, Brown, Winfield &
17
Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1248 [discussing
LeFrancois].)9
LeFrancois specifically addressed the language of Code of Civil
Procedure section 1008, subdivision (c), which states that a court on its own
motion may reconsider a prior order “if [it] at any time determines that there
has been a change of law . . . .” (LeFrancois v. Goel, supra, 35 Cal.4th at p.
1105.) It acknowledged that language contained a “negative implication that
the court may not reconsider such an order absent a change in the law” but
declined to give it effect in view of a different negative implication in
subdivision (e) that pointed “more strongly” to a narrow interpretation of the
statute. (Id. at p. 1106 [“we cannot give effect to both contradictory negative
implications”].) It instead held there was “no hint that the Legislature
wanted to hinder the courts’ ability to act . . . .” (Ibid.) Consequently,
subsequent cases hold that “[e]ven without a change of law, a trial court may
exercise its inherent jurisdiction to consider an interim ruling.” (Pinela v.
Neiman Marcus Group, Inc. (2015) 238 Cal.App.4th 227, 237; see also Chen v.
Valstock Ventures, LLC (2022) 81 Cal.App.5th 957, 968 [quoting Pinela];
State of California v. Superior Court (Flynn) (2016) 4 Cal.App.5th 94, 100
9 Subsequent to LeFrancois v. Goel, supra, 35 Cal.4th 1094, the high
court pointed out “it is immaterial what may have triggered a trial court’s
insight that its interim order might be erroneous: . . . ‘If a court believes one
of its prior interim orders was erroneous, it should be able to correct that
error no matter how it came to acquire that belief’ ” as long as it meets
certain procedural protections. (Brown, Winfield & Canzoneri, Inc. v.
Superior Court, supra, 47 Cal.4th at p. 1249.) Brown cited the holding of In
re Marriage of Barthold (2008) 158 Cal.App.4th 1301 for the proposition that
a reconsideration motion might violate Code of Civil Procedure section 1008 if
unsupported by new legal authority or new evidence, but such a motion may
nevertheless inspire the trial court to reconsider its previous decision on its
own motion. (Brown, at p. 1249, citing Marriage of Barthold, at p. 1308.)
18
[same].) There is no basis in LeFrancois for plaintiffs’ proposed limitation on
Judge Pollack’s power to sua sponte reconsider Judge Taylor’s order.10
With respect to prejudice from delay, plaintiffs cite no authority for the
proposition that a court abuses its discretion by reconsidering a class
certification order years after it was issued, or that prejudice from delay, if
shown, justifies maintaining a class. To the contrary, after a class is
certified, “a trial court retains flexibility to manage the class action, including
to decertify a class if ‘the court subsequently discovers that a class action is
not appropriate.’ ” (Kight v. CashCall, Inc. (2014) 231 Cal.App.4th 112, 136;
accord, Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1, 29-30
[“decertification must be ordered whenever a trial plan proves unworkable”].)
There is no basis to conclude Judge Pollack abused his discretion by
reconsidering the class certification order strictly due to the passage of time
between the original order and District’s decertification motion. In sum,
plaintiffs have not demonstrated Judge Pollack abused his discretion
procedurally by sua sponte reconsidering Judge Taylor’s order.
10 Plaintiffs do not argue Judge Pollack was precluded from reviewing
Judge Taylor’s order under the general rule that prevents a judge from
reconsidering or overruling the interim ruling of another judge. (See In re
Marriage of Oliverez (2015) 238 Cal.App.4th 1242, 1248.) Because they do
not invoke this rule, we have no occasion to decide whether the matter falls
within one of the narrow exceptions—the first judge being unavailable to
reconsider the motion—by virtue of plaintiffs’ challenge to Judge Taylor.
(See ibid.; and see In re Marriage of Furie (2017) 16 Cal.App.5th 816, 831,
fn. 10 [transfer to another department of the same superior court does not
render a judge unavailable for purposes of Code of Civil Procedure section
1008].)
19
III. Merits of Decertification Order
We turn to the merits of the court’s order. Plaintiffs contend the court
erred by decertifying the class based on two grounds that assertedly rest on
improper criteria or erroneous legal assumptions. They also contend the
court erred by finding District met its burden to establish decertification.
After a brief discussion of legal principles of class certification and
decertification, as well as relevant sections of Proposition 218, we address
these grounds in turn.
A. Class Action Certification and Decertification
A party seeking class treatment “ ‘must demonstrate the existence of an
ascertainable and sufficiently numerous class, a well-defined community of
interest, and substantial benefits from certification that render proceeding as
a class superior to the alternatives. [Citations.] “In turn, the ‘community of
interest requirement embodies 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.’ ” ’ ” (Espejo v. The Copley Press, Inc. (2017) 13
Cal.App.5th 329, 352, quoting Brinker Restaurant Corp. v. Superior
Court (2012) 53 Cal.4th 1004, 1021; see also Noel v. Thrifty Payless, Inc.
(2019) 7 Cal.5th 955, 968-969.)
“Typically, ‘[t]he adequacy of representation component of the
community of interest requirement for class certification comes into play
when the party opposing certification brings forth evidence indicating
widespread antagonism to the class suit.’ [Citation.] ‘ “It is axiomatic that a
putative representative cannot adequately protect the class if his interests
are antagonistic to or in conflict with the objectives of those he purports to
represent. But only a conflict that goes to the very subject matter of the
20
litigation will defeat a party’s claim of representative status.” ’ ” (Espejo v.
The Copley Press, Inc., supra, 13 Cal.App.5th at p. 352.)
As we have stated, after certification, a trial court retains flexibility to
manage the class action, including to decertify a class if a class action is no
longer appropriate. (Espejo v. The Copley Press, Inc., supra, 13 Cal.App.5th
at p. 353; Kight v. CashCall, Inc., supra, 231 Cal.App.4th at pp. 125-126.) “To
prevail on a decertification motion, a party must generally show ‘new law or
newly discovered evidence showing changed circumstances. [Citation.] A
motion for decertification is not an opportunity for a disgruntled class
defendant to seek a do-over of its previously unsuccessful opposition to
certification. “Modifications of an original class ruling, including
decertifications, typically occur in response to a significant change in
circumstances, and ‘[i]n the absence of materially changed or clarified
circumstances . . . courts should not condone a series of rearguments on the
class issues[.]’ [Citation.]” ’ [Citation.] A ‘class should be decertified “only
where it is clear there exist changed circumstances making continued class
treatment improper.” ’ ” (Espejo, at p. 353, Kight v. CashCall, Inc., at pp.
125-126.)
“A party moving for decertification generally has the burden to show
that certification is no longer warranted, and courts have broad discretion in
ruling on this issue. Trial courts ‘ “ ‘are ideally situated to evaluate the
efficiencies and practicalities of permitting group action’ ” ’ and therefore are
‘ “ ‘afforded great discretion’ ” ’ in evaluating the relevant factors. [Citation.]
However, ‘[d]ecertification resting on improper legal criteria or an incorrect
assumption is an abuse of discretion. [Citation.] . . . We thus review only
the reasons the court stated for its order, and we reverse if the reasons do not
support [it].’ ” (Kight v. CashCall, Inc., supra, 231 Cal.App.4th at p. 126.)
21
We afford the court’s decision “great deference on appeal, reversing only for a
manifest abuse of discretion.” (Noel v. Thrifty Payless, Inc., supra, 7 Cal.5th
at pp. 967-968.)
When a court reconsiders a class certification order, we likewise review
the court’s ruling for abuse of discretion. (See, e.g., Simonyan v. Nationwide
Insurance Company of America (2022) 78 Cal.App.5th 889, 895; New York
Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.)
B. Proposition 218
Plantier reviewed the history of Proposition 218 and its procedural and
substantive limitations. (Plantier, supra, 7 Cal.5th at pp. 380-382.) The
voters approved Proposition 218 to address local governments’ tendency to
label certain special taxes as fees, charges or assessments so as to circumvent
prior restrictions on the imposition of those taxes. (Plantier, at pp. 380-381.)
In part, Proposition 218 added article XIII D to the California Constitution,
addressing property-based taxes and fees. (Id. at p. 381.) The article
imposes procedural prerequisites to imposing or increasing any fee or charge
and also distinct substantive limitations on property-related fees. (Ibid.)
Under the substantive limitations contained in subdivision (b) of
section 6, “(1) revenues derived from the fee may not exceed the cost of
providing the property-related service ([art. XIII D], § 6, subd. (b)(1)); (2)
those revenues may not be used for any purpose other than the one for which
the fee was imposed (id., § 6, subd. (b)(2)); (3) the amount of the fee ‘shall not
exceed the proportional cost of the service attributable to the parcel’ (id., § 6,
subd. (b)(3), italics added); (4) a fee may not be imposed for a service unless
that service is available to the property owner (id., § 6, subd. (b)(4)); and (5) a
fee may not be imposed upon property owners for a general governmental
service, like fire protection, if the service is available to the general public in
22
substantially the same manner as it is to property owners (id., § 6, subd.
(b)(5)).” (Plantier, 7 Cal.5th at p. 382.)
Plantier explained the distinction between the restrictions relevant
here: the proportionality requirement of section 6(b)(3) and the cost-of-service
requirement in section 6(b)(1). The proportionality requirement of section
6(b)(3) “ ‘ensures that the aggregate fee collected on all parcels is distributed
among those parcels in proportion to the cost of service for each parcel.’ ”
(Plantier, supra, 7 Cal.5th at p. 382, quoting Morgan v. Imperial Irrigation
Dist. (2014) 223 Cal.App.4th 892, 908.) “The proportionality requirement
concerns the method used to allocate a property-related service’s aggregate
cost among fee payors. It is separate from an agency’s obligation not to
collect more revenue than necessary to provide that service to all identified
parcels [under section 6(b)(1)].)” (Plantier, at p. 382.) “[S]atisfying each
subdivision is a different endeavor.” (Plata v. City of San Jose (2022) 74
Cal.App.5th 736, 750.)
“ ‘The theme of [section 6(b)(1)] is that fee or charge revenues may not
exceed what it costs to provide fee or charge services. Of course, what it costs
to provide such services includes all the required costs of providing service,
short-term and long-term, including operation, maintenance, financial, and
capital expenditures. The key is that the revenues derived from the fee or
charge are required to provide the service, and may be used only for the
service. In short, the section 6(b)[(1)] fee or charge must reasonably
represent the cost of providing service.’ ” (Moore v. City of Lemon Grove
(2015) 237 Cal.App.4th 363, 368, quoting Howard Jarvis Taxpayers Assn. v.
City of Roseville (2002) 97 Cal.App.4th 637, 647-648; see also Wyatt v. City of
Sacramento (2021) 60 Cal.App.5th 373, 383.)
23
C. Plaintiffs Do Not Allege a Violation of Section 6(b)(1)
As stated, the trial court based its decertification order in part on a
finding that plaintiffs could not advocate for class action propriety based on a
claim of District’s revenue overstatement in violation of section 6(b)(1)
because they had not pleaded that theory in either their government claim or
first amended complaint. The lower court’s conclusion is consistent with the
Plantier court’s characterization of plaintiffs’ operative complaint. After
distinguishing the two restrictions of section 6(b)(1) and 6(b)(3), and having
these plaintiffs’ complaint before it, the Plantier court observed that their
case was brought under section 6(b)(3)’s proportionality requirement:
“Plaintiffs’ complaint here is that the EDU assignment method does not
properly allocate costs among parcels served.” (Plantier, supra, 7 Cal.5th at
p. 382.) We recognize that the question presented here was not before the
Plantier court, but its observation is still compelling (Hubbard v. Superior
Court (1997) 66 Cal.App.4th 1163, 1169 [even if dictum, courts should
consider California Supreme Court statements persuasive]) and we agree
with it. As we explain, even liberally construed, there are no allegations in
plaintiffs’ operative pleading that reasonably state a violation of section
6(b)(1).
Plaintiffs concede the first amended complaint does not mention section
6(b)(1). Indeed, that pleading generally describes the “nature of the action”
(capitalization omitted) as one in which the District’s EDU billing system
“does not meet the requirements set forth in . . . [s]ection 6(b)(3)] . . . .”
Plaintiffs nevertheless point to various allegations made both in their
government claim and first amended complaint to suggest they adequately
pleaded revenue overstatement in violation of section 6(b)(1). They say “the
substantive allegations [of their government claim and first amended
24
complaint] relate directly to [section 6(b)(1)]—namely, that the sewer service
charges exceed the funds required to provide the service.” Plaintiffs further
point to the liberal standards for permitting amendments of pleadings and
maintain that given these standards and their allegations giving District
notice of the “aggregate overcharge,” the court’s ruling cannot stand.
Plaintiffs’ cited allegations, which we reproduce with our own
emphasis, do not bear this out. The operative complaint’s allegations are
targeted to the lack of relationship between the charge and a property
owner’s water use or proportional cost of providing service to a specific
property. It alleges District’s EDU schedule is “arbitrary” and assigns EDU
values “without regard to: (1) the property’s actual wastewater use; and (2)
the proportional cost of providing that property with wastewater service.”
(Italics added.) It alleges the EDU is not based on documentation
“establishing a rational relationship between the EDU values set forth in the
[s]chedule and actual wastewater use or the proportional cost of providing a
property with wastewater service.” (Italics added.) Plaintiffs repeatedly
allege the service charge violates section 6(b)(3) for these reasons, i.e. because
it is “imposed based solely on EDU[’]s without regard to actual wastewater
use, a property’s proportional burden on the wastewater system, or the actual
cost of providing a property with wastewater service.” (Italics added.) The
complaint alleges “[a] vacant property with little or no actual wastewater use
is charged the same EDU-based use fee as an equivalent EDU-value property
with significant wastewater use, despite the measurable difference in the
proportional cost of providing each property with wastewater service.” (Italics
added.) It is true that plaintiffs allege District’s “imposition of [the sewer
service charge] has resulted in the systematic overcharge of [District’s]
wastewater customers,” but that allegation comes immediately after one that
25
states the sewer charge “violates Proposition 218 because it is calculated on a
per-EDU basis and bears no rational relationship to a parcel’s actual
wastewater use.” (Italics added.)
These are not allegations that the wastewater service fee revenues
collected by District exceed District’s operational, maintenance, financial, or
capital costs or expenditures to provide the service. And because such
allegations making out a section 6(b)(1) violation do not appear in plaintiffs’
government claim, District was not on notice of the “basic factual
underpinnings” (Plata v. City of San Jose, supra, 74 Cal.App.5th at p. 749, fn.
6) for such a claim. Accordingly, we do not address plaintiffs’ arguments that
they may amend their complaint, as they are precluded from asserting the
theory at this late stage. (Accord, Plata, at pp. 747-752 [plaintiffs who did
not mention “tiered rates” for water services or implicate section 6,
subdivision (b)(3) in their government claim, pleadings or motion for class
certification did not apprise the city defendant that they were attacking its
tier structure, warranting reversal of the judgment on that claim].) “Clarity
on such issues is especially critical in Proposition 218 cases because the
Constitution places the burden on the government to show compliance with
its requirements. The government cannot do this if claimants are not
specific.” (Plata, at p. 751.)
D. The Court Did Not Abuse its Discretion in Granting Reconsideration and
Decertifying the Class Based on Class Members’ Conflicts of Interest
Plaintiffs contend the court erred by decertifying the class “based on a
speculative future conflict that does not, and cannot, exist.” They maintain
there is “no evidence of even one class member who underpaid their sewer
service charges in the record,” (emphasis omitted) nor is there evidence or
law supporting a finding that a class member who previously underpaid could
26
be reassessed and forced to pay back-charges for prior years of service.
Plaintiffs argue a potential future conflict, if it arises, is an issue that can be
resolved later in the litigation, including by the court modifying the class
definitions or withdrawing class status to a particular group. They further
argue there is no evidence some class members may have to pay more in the
future if the court finds a violation of Proposition 218; rather, according to
plaintiffs, the evidence shows class-wide overcharges. Plaintiffs assert that
even if District presented evidence that some ratepayers will pay more, the
law—as discussed in Capitol People First v. State Dept. of Developmental
Services (2007) 155 Cal.App.4th 676 (Capitol People First)—will not put
minority class member interests above the majority of class members’ right to
enforce Proposition 218.
Plaintiffs intersperse these arguments with assertions that District’s
zero-sum game position “necessarily depends on [District] collecting the
proper amount for the total costs of annual sewer services” or that District’s
EDU values “have no rational relationship to the actual cost of providing any
parcels with wastewater service . . . .” They argue elsewhere that District “is
collecting far more than the amount necessary to rate and maintain the
sewer system on an annual basis” such that the “entire class has been
overcharged in an amount equal to a proportional cost of the service
attributable to each parcel.” We disregard these sorts of assertions for two
reasons: They are based on the unpleaded theory that District’s rates violate
section 6(b)(1) because the total revenues exceed the funds required to
provide the sewer services. They are also based on the declarations of
Werner and DeMaster to which the court sustained objections and excluded
from its consideration. Plaintiffs do not present meaningful argument or
27
authority challenging the court’s evidentiary ruling to these declarations. 11
The theory under section 6(b)(1) cannot serve as a basis to maintain the class.
As stated, we are bound to review the court’s reconsideration and
decertification order for manifest abuse of discretion. (Noel v. Thrifty Payless,
Inc., supra, 7 Cal.5th at pp. 967-968; Simonyan v. Nationwide Insurance
Company of America, supra, 78 Cal.App.5th at p. 895.) “ ‘ “The appropriate
test for abuse of discretion is whether the trial court exceeded the bounds of
reason. When two or more inferences can reasonably be deduced from the
facts, the reviewing court has no authority to substitute its decision for that
of the trial court.” ’ ” (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1339.)
Under this review standard, a court’s ruling will not be disturbed unless the
court exercised its discretion in an arbitrary, capricious, or patently absurd
manner. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
Applying this standard on this record, we cannot say the court erred by
decertifying the class. In 2015, District presented evidence to Judge Taylor
via a declaration from its chief financial officer, Richard Hannasch,
explaining why it was impossible for District to overcharge all of the class
members, and why residential property owners/class members would suffer
higher assessments on the success of commercial property-owner class
members such as plaintiffs. Specifically, Hannasch stated “it is not
mathematically possible that all customers (i.e., all prospective class
11 In a footnote included within their arguments concerning leave to
amend the class definition or claims, plaintiffs say the court abused its
discretion by “sustaining [District’s] boilerplate, copied and pasted objections
to every single piece of evidence introduced in opposition to the motion to
decertify” without “provid[ing] any reason or bases for this ruling in the
decertification order.” Such cursory assertions do not constitute a meaningful
evidentiary challenge, and we do not address them.
28
members) were overcharged, because all customers were paying their
proportional share of a capped amount of revenues needed to provide sewer
services. If any customers were overcharged, that would mean
mathematically, inevitably, and necessarily, that other customers were
undercharged. Each customer pays his or her share of the total costs of
annual sewer services—if a determination is made about one customer’s
contribution, or one group of customers’ contributions, it will necessarily
affect the amount that the remaining customers will be required to
contribute. Therefore, any refund of sewer service charges to certain
customers would necessarily have to be paid out of funds collected from
others.” Pointing out all three plaintiffs owned commercial properties,
Hannasch explained that “if commercial property owners successfully argued
that they were overcharged for sewer service charges, the source of funds for
any potential refunds would be higher assessments on other property owners,
who are predominantly residential property owners.”
Thus, District’s opposition to certification in 2015 was premised in part
on the theory that given its collection of a fixed amount of revenue, the
lawsuit and any modification of the EDU schedule would give rise to
antagonism and conflicts between the class representatives and the
remaining class, or among class members. Judge Pollack determined, on
reconsideration, that this evidence demonstrated Judge Taylor had
erroneously certified a class with actual and inherent irreconcilable conflicts
stemming from the lawsuit, pitting “the wins for some class members with
the corresponding losses for others,” which Judge Taylor did not appreciate.
Judge Pollack further determined that because plaintiffs had not proposed a
subclass that could eliminate such a conflict, nor had they provided an
alternative methodology for calculating proportionate sewer charges, there
29
was no way to determine which members would get a reduced allocation
under a modified methodology so as to proceed with a subclass.
It was not wholly unreasonable or outside the bounds of reason for
Judge Pollack to view this evidence differently from Judge Taylor as showing
a present and inherent, not hypothetical or speculative, conflict among class
members sufficient to bar certification. Judge Pollack’s observations are apt:
“[S]ince the ‘pie’ from which proportionality must be allocated always totals
100 [percent], a ‘zero[-]sum’ game is created if any payer’s proportionate
share is changed. If one class member payer’s proportion is reduced,
necessarily other class member payor(s)’ proportion(s) must increase. A
lawsuit like this, premised upon ‘robbing Peter to pay Paul’ is inherently
improper when Peter and Paul are both plaintiffs in the same lawsuit (and
represented by the same law firm).” District was not required to provide
evidence of underpaying class members when the very nature of the way
District operates establishes the class will have antagonistic interests. It was
not an abuse of discretion to conclude this sort of conflict among the proposed
class members went “to the very subject matter of the litigation,” namely the
alleged overcharging of sewer system consumers. (See, e.g., Global Minerals
& Metals Corp. (2003) 113 Cal.App.4th 836, 851-854 [plaintiffs who alleged
defendants manipulated the price of copper, causing artificial inflation of
prices, could not maintain class due to conflicts among plaintiff class
members who acted as purchasers and those who acted as sellers, among
other problems].) This is not merely a matter of class plaintiffs having to
make individualized damages showings or eligibility for recovery. (Compare
In re Cipro Cases I & II (2004) 121 Cal.App.4th 402, 414-415 [inflated prices
were common to all plaintiffs, who were all harmed by the same anti-
competitive conduct].)
30
District presented similar evidence in its decertification motion via the
declarations of Handlers, Metts, and Schmollinger,12 which went unrebutted
when the court excluded plaintiffs’ proffered expert evidence. While we agree
with plaintiffs that these declarations were not new in addressing the zero-
sum nature of District’s EDU system, District buttressed its decertification
motion with new evidence: deposition excerpts from class members who
would withdraw or want to stop the lawsuit if it were to result in increased
sewer charges. Plaintiffs appear to concede the class member deposition
excerpts are new, but characterize them as “self-serving” and “cherry-picked.”
They maintain the court erred by considering the testimony, but provide no
12 Handlers averred: “The calculation of sewer service charges is a zero-
sum game. Even if this Court ordered the District to change its method for
calculating rates, the District would still need to collect the same amount of
revenues sufficient to operate and maintain the sewer system—the only thing
that would change is the distribution of these costs among ratepayers.
Assuming arguendo that Plaintiffs’ theory was correct and the District’s EDU
method is unlawful (which it is not), if any customers were overcharged, that
would mean, necessarily, that other customers were undercharged. Because
of the way sewer service charges are calculated, customers who are allegedly
overcharged would be, in a sense, subsidizing the sewer service costs for
customers who are being undercharged. Customers who were undercharged
would therefore actually benefit from the District’s allegedly improper
distribution formula. If the District’s EDU schedule is modified for any
occupancy type in a sewer service area, it will affect the calculated amount of
sewer service charges that the remaining parcels in that sewer service will
have to pay, because the amount of revenues needed remains the same,
regardless of how those revenues are apportioned for collection.” Metts made
similar statements, explaining, “A decrease in one establishment type’s sewer
service charges (i.e., restaurants) could very well result in an increase for
another’s (i.e., residential).” Schmollinger, District’s acting general manager
and chief financial officer, discussed District’s annual budget process used to
determine total costs to maintain and operate the sewer system for the
upcoming fiscal year, and the zero-sum game nature of the calculation of
those services in a manner similar to Handlers.
31
reasoned legal argument with authority to support that position. On
District’s motion for decertification, it was not arbitrary or wholly
unreasonable for the court to view this evidence as manifesting the
antagonism to the class by class members situated similarly to the
deponents.
Further, Judge Pollack relied on federal authority decided after Judge
Taylor’s class certification order—Junod v. NWP Services Company (C.D. Cal.
2016) 2016 WL 6306030—involving a similar context: claims of a billing
servicer overcharging for water and sewer services. (Id. at *1.) In the
absence of relevant state precedents on class action procedure, it is “well
established” that California courts may take guidance from federal law.
(Green v. Obledo (1981) 29 Cal.3d 126, 145-146; see also Noel v. Thrifty
Payless, Inc., supra, 7 Cal.5th at p. 977; Duran v. Obesity Research Institute,
LLC (2016) 1 Cal.App.5th 635, 646, fn. 6.)
The plaintiff in Junod sought to define a class of “[a]ll persons to whom
[the billing servicer] sends invoices for utility services in the U.S. who have a
water submeter in their unit that only measures hot water usage.” (Junod v.
NWP Services Company, supra, 2016 WL 6306030 at *2, 5.) The district
court denied certification. The underlying legal theory supporting the claim
was not pleaded in the complaint, but also the class was unidentifiable and
unascertainable: it necessarily included unharmed members, that is, cold
water users who ultimately paid less than their share of total water usage,
whose utility costs the hot water users subsidized. (Id. at *5-6.) Junod
explained that courts consistently denied certification when class definitions
include both harmed and unharmed members. (Id. at *6, citing in part
Mazur v. eBay Inc. (N.D. Cal. 2009) 257 F.R.D. 563, 567 [class included
certain eBay auction purchasers who due to the type of bidding were not
32
harmed by an inflated price] & Colapinto v. Esquire Deposition Servs., LLC
(C.D. Cal. 2011) 2011 WL 913251, at *4 [class was not ascertainable because
definition included members who were reimbursed for allegedly unlawful and
deceptive court reporter charges].) Because the class in Junod fell within
that category and was “imprecise and overbroad,” the court denied
certification. (Junod, at *6.)
Such a defect in the class “alone is sufficient to warrant denial of
plaintiff’s motion for class certification.” (Colapinto v. Esquire Deposition
Servs., LLC, supra, 2011 WL 913251 at *4, some capitalization omitted.)
This court acknowledges that “ ‘ “[c]lass 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 member who have claims
can be identified from those who should not be included in the class.” ’ ”
(Hefczyc v. Rady Children’s Hospital-San Diego (2017) 17 Cal.App.5th 518,
537, disapproved on other grounds in Noel v. Thrifty Payless, Inc., supra, 7
Cal.5th at p. 986, fn. 15 [disapproving Hefczyc to the extent it applied an
ascertainability standard requiring class members be “ ‘readily identified
without unreasonable expense or time by reference to official records’ ”].) We
cannot say the court abused its discretion in decertifying the class by
applying Junod v. NWP Services Company, supra, 2016 WL 6306030 and like
authorities.
Plaintiffs’ cited cases involve differing facts that limit their persuasive
value. (Accord, Seastrom v. Neways, Inc. (2007) 149 Cal.App.4th 1496, 1504
[“ ‘General expressions in opinions that go beyond the facts of the case will
not necessarily control the outcome in a subsequent suit involving different
facts’ ”].) They do not compel a different conclusion in any event. Plaintiffs
compare the situation here with Social Services Union, Local 535 etc. v.
33
County of Santa Clara (9th Cir. 1979) 609 F.2d 944, in which the Ninth
Circuit reversed a district court’s denial of certification of a class of female
union members paid less than their male counterparts based on the lower
court’s perception of a conflict between male and female class members’
economic interests. (Id. at pp. 946, 948.) The Ninth Circuit explained the
conflict was speculative: “While the court assumed that male union members
would suffer pecuniary injury if the pay of female employees were raised
relying on ‘the general budgetary constraints on units of local government’
this assumption is purely speculative. The record contains no evidence that
the economic interests of male union members would in fact suffer in this or
any other way because of relief that might be obtained in this action. Mere
speculation as to conflicts that may develop at the remedy stage is
insufficient to support denial of initial class certification.” (Id. at p. 948.)
Here, Judge Pollack was presented with nonspeculative evidence from
District representatives as to the zero-sum nature of the District’s EDU
system, which he found necessarily created actual conflict among the class
members; such unique circumstances were not present in Social Services
Union.
Nor does Capitol People First, supra, 155 Cal.App.4th 676 assist
plaintiffs. Plaintiffs rely on that case for the proposition that “the interests of
minority class members cannot defeat the right of the majority of ratepayers
to enforce Proposition 218.” But Capitol People First is likewise inapposite.
It involved the adequate representation of a class of persons with
developmental disabilities who sought declaratory and injunctive relief
related to their right to live in the least restrictive environment
commensurate with their needs. (Id. at p. 681.) The class plaintiffs asserted
the defendants’ policies and practices did not comply with the law, but a
34
group of interveners—11 individuals and two nonprofit organizations—
disagreed, taking the position that many members of the class would be best
served in large institutions versus community settings. (Id. at pp. 698, 699.)
The Court of Appeal reversed the lower court’s decertification order, finding
the intervenors’ “concern goes to the merits of appellants’ claim, not to the
issue of certification”; that is, their “disagreement does not comprise
antagonism that will defeat certification.” (Ibid.) The appellate court went
on to say: “Interveners have no legitimate interest in furthering any
continuing violations of the law, or in preventing other class members from
seeking systemic relief to correct any violations found by the court. Whether
these laws have been violated is for the court to decide, with the help of
interveners. As the court acknowledged, interveners can protect their
interests by presenting evidence and making arguments to the trier of fact.”
(Ibid.) The court also observed that the plaintiffs and interveners had
different philosophical perspectives, but those did not amount to legally
cognizable antagonism where the interveners had materially misstated the
plaintiffs’ requested relief and position, leading the lower court to make
erroneous assumptions about the “heart of this litigation.” (Id. at pp. 699-
700.) According to the court, “[d]ifferences among class members about the
type of relief sought and the outcome of the litigation can be accommodated
by the trial judge whose job is to give the various class interests the proper
weight under the applicable substantive law.” (Id. at p. 701.) The Capitol
People First court emphasized that the subject matter of the case and the
reforms plaintiffs sought were not about the actual outcomes of the
placement determinations (ibid.), which was the intervenors’ focus.
Capitol People First, supra, 155 Cal.App.4th 676 likewise does not
involve circumstances where creating a broad class (here, of District
35
customers who paid a sewer service charge on or after November 22, 2012)
pits some injured class members against others necessarily benefitted as to
the very subject matter of the litigation. It does not involve a scenario of both
harmed and unharmed class members, creating an unascertainable and
improper class. The case does not compel us to conclude Judge Pollack
abused his discretion in decertifying the class.
IV. Amicus Arguments
Given our conclusion, we need not reach the arguments made by
amicus California Association of Sanitation Agencies. Applying the
framework set out in Katzberg v. Regents of University of California (2002) 29
Cal.4th 300, it contends a refund is not an appropriate remedy for a
constitutional Proposition 218 violation. But the issue was not raised by
District in this court or below, and we will not consider it anew. “ ‘Courts
generally do not consider new issues raised in amicus briefs. Instead, “[i]t is
a general rule that an amicus curiae accepts a case as he or she finds it,” and
“[a]micus curiae may not ‘launch out upon a juridical expedition of its own
unrelated to the actual appellate record.’ ” [Citation.] “California courts
refuse to consider arguments raised by amicus curiae when those arguments
are not presented in the trial court, and are not urged by the parties on
appeal. ‘ “Amicus curiae must accept the issues made and propositions urged
by the appealing parties, and any additional questions presented in a brief
filed by an amicus curie will not be considered.” ’ ” ’ ” (People v. Davis (2022)
75 Cal.App.5th 694, 725.) Further, courts should avoid resolving
constitutional questions if the matter may be resolved on narrower grounds.
(Hassell v. Bird (2018) 5 Cal.5th 522, 534; Loeffler v. Target Corp. (2014) 58
Cal.4th 1081, 1102.)
36
DISPOSITION
The order is affirmed.
O’ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
BUCHANAN, J.
37