McAdams v. Monier, Inc. CA3 ( 2015 )

Filed 10/14/15 McAdams v. Monier, Inc. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----
TIM MCADAMS, C073435
Plaintiff and Appellant, (Super. Ct. No. S-CV-0016410)
v.
MONIER, INC.,
Defendant and Respondent.
This case is before us for the third time. The third time’s not always the charm.
Once again, this matter is going back.
This case is a misrepresentation-based class action under the Consumers Legal
Remedies Act (CLRA) (Civ. Code, §§ 1750 et seq., 1770, subds. (a)(5) & (7)) and the
unfair competition law (UCL) (Bus. & Prof. Code, §§ 17200 et seq., 17500). Plaintiff
Tim McAdams, on behalf of himself and all others similarly situated (plaintiff), alleges
that defendant Monier, Inc. (Monier), on its own and through unwitting intermediaries in
1
the housing sale and construction industries (parroting Monier statements or
information), represented that Monier’s slurry-coated concrete roof tiles would last 50
years, would have a permanent color, and would be maintenance-free, when, in fact,
Monier knew, but failed to disclose, that the color composition of its roof tiles would
erode away well before the end of the represented 50-year lifespan. In short, as we said
on remand in McAdams v. Monier, Inc. (2010) 182 Cal.App.4th 174 (McAdams II),1
“[t]he focus of the CLRA and the UCL class actions is on an alleged single, specific
material misrepresentation involving a failure to disclose the particular fact of premature
color erosion to bare concrete . . . ” (id. at p. 192).
Here, we conclude the trial court properly excluded a plaintiff expert’s statistical
sampling testimony concerning class size, but improperly determined that this testimony
also constituted the evidence of class liability and class damages. Accordingly, we shall
reverse the judgment and the award of costs to Monier, and remand the matter for the
class size to be determined and for further proceedings based on that figure.
FACTUAL AND PROCEDURAL BACKGROUND
Our first two encounters with this case concerned class certification and
bookended an intervening California Supreme Court case—In re Tobacco II Cases
(2009) 46 Cal.4th 298 (which concerned issues of standing under the UCL in light of a
2004 initiative measure, Prop. 64). From these encounters, we ultimately concluded that
the trial court erred in denying class certification to the CLRA and the UCL classes; and
we agreed with Massachusetts Mutual Life Ins. Co. v. Superior Court (2002)
97 Cal.App.4th 1282, 1293, that an “ ‘inference of common reliance’ ” may be applied to
1 In light of the substantial prior history of this case, and for the sake of clarity, we shall
refer to our February 24, 2010 opinion on remand as McAdams II. (McAdams II, supra,182 Cal.App.4th 174.) An unpublished opinion filed on May 30, 2007 (case
No. C051841) constitutes McAdams I; today’s opinion represents McAdams III.
2
a CLRA class that alleges a material misrepresentation consisting of a failure to disclose
a particular fact in light of other information that is disclosed. (McAdams II, supra,182 Cal.App.4th at pp. 178-179.)
In McAdams II, in light of this “ ‘inference of common reliance,’ ” we also added
the following “proviso” to the definition of the CLRA and UCL classes: “[T]he members
of these classes, prior to purchasing or obtaining their Monier roof tile product, had to
have been exposed to a statement along the lines that the roof tile would last 50 years, or
would have a permanent color, or would be maintenance-free.” (Id. at pp. 178-179; see
id. at p. 184; see also In re Tobacco II Cases, supra, 46 Cal.4th at p. 324.) This “proviso”
was based on the principle of law that fraud or deceit, in the CLRA (and the UCL)
context, may consist of the suppression of a known fact (i.e., premature color erosion) by
one who gives information of other facts (i.e., 50-year life, permanent color, or
maintenance-free), which are likely to mislead given the suppression of that known fact.
(McAdams II, supra, 182 Cal.App.4th at p. 185.)
The CLRA and UCL classes essentially comprised Californians who owned
homes for personal use with slurry-coated roof tiles sold by Monier between January
1978 and August 14, 1997 (or who previously owned such a home and paid to replace or
repair such tiles), and who satisfied the McAdams II proviso. (See McAdams II, supra,182 Cal.App.4th at pp. 179-180.)
To determine whether someone satisfied the McAdams II proviso, plaintiff
employed a statistical expert, Gary Lorden, Ph.D. Dr. Lorden’s statistical sampling
method used a sample of 22 individuals who owned homes with the roof tiles at issue,
and attempted to extrapolate from this sample the number of individuals who had been
exposed (out of 127,746, the estimated number of California homes with the roof tiles at
issue, a number determined by a different expert) to at least one of the three Monier
statements in “the proviso,” prior to purchasing or obtaining their Monier roof tiles. We
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will discuss Dr. Lorden’s statistical sampling method in greater detail when we discuss
the trial court’s exclusion of his testimony, but this is as far as we need to go now.
Trial began in October 2012 and lasted 31 days.
To prove Monier’s liability, plaintiff deposed the 22 homeowners in the sample
Dr. Lorden used and had 16 of them, along with class representative Tim McAdams and
three other homeowners, testify at trial. These witnesses testified essentially (1) they
were told, most commonly from intermediaries in the housing industry but occasionally
from Monier literature, that their slurry-coated Monier roof tiles would last 50 years, or
would retain permanent color, or would be maintenance-free; and (2) they relied on these
representation(s) to their detriment, as the color of their roofs eroded prematurely, usually
to bare, gray concrete. Plaintiff also (1) had nine former Monier employees testify,
especially regarding Monier’s relevant marketing practices; (2) presented Monier
marketing literature on the slurry-coated roof tiles; (3) presented a damages expert,
Phillip Waier, who opined that the average cost to recoat a Monier tile roof is $3,705; and
(4) presented an accounting expert, Clifford Kupperberg, who estimated the total number
of home roofs in California with the Monier slurry-coated tiles at issue at 127,746.
Monier countered at trial with testimony from (1) six (of the 22) sampled
homeowners not called by plaintiff as well as 31 additional homeowners (via deposition
testimony), (2) several former Monier employees, and (3) two experts of its own (who
criticized plaintiff’s “proviso” sampling method).
The jury, in a verdict form with special interrogatories, found that Monier made a
material misrepresentation to plaintiff—i.e., the Monier slurry-coated roof tiles would
last 50 years, or would have permanent color, or would be maintenance-free, while
failing to disclose that the color coat would deteriorate in less than 50 years—and that
plaintiff relied upon this misrepresentation to its detriment (damage). Using Dr. Lorden’s
statistical sampling method, the jury found there were 2,000 class members. The jury
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awarded plaintiff $7.41 million in damages (the class size of 2,000 multiplied by
$3,705—the average cost to recoat a Monier slurry-coated tile roof). This amount of
damages constituted a small portion of the class size and the damages that plaintiff had
sought.
Pursuant to evidentiary and other rulings deferred until after the jury rendered its
verdict, the trial court excluded Dr. Lorden’s statistical sampling method and
accompanying expert opinion, finding that it lacked a reasonable basis for accuracy. The
trial court also concluded that since plaintiff’s case rested upon Dr. Lorden’s method and
opinion not only as to class size but also as to class liability and damages, there was no
longer any relevant evidence before the fact finder as to class size, liability, or damages.
Consequently, the trial court (1) granted Monier’s motion for nonsuit as to the
jury-tried CLRA action and Monier’s motion for judgment on the court-tried UCL action
(the UCL action was based on the same material misrepresentation as the CLRA action
(McAdams II, supra, 182 Cal.App.4th at p. 188));2 (2) entered judgment for Monier; and
(3) ordered plaintiff to pay Monier’s litigation costs of $117,580.05.
Plaintiff appeals the judgment and the award of costs to Monier.3 We conclude
the trial court did not abuse its discretion in excluding Dr. Lorden’s expert testimony
concerning class size. But we also conclude the trial court erroneously found that
Dr. Lorden provided plaintiff’s only evidence on class liability and damages as well; and
therefore the trial court erroneously granted nonsuit to Monier on the CLRA action,
judgment to Monier on the UCL action, and costs to Monier. In short, the trial court
erroneously conflated plaintiff’s evidence on the extent of class liability (i.e., class size)
2 An action under the UCL, which is limited to injunctive, restitutionary and related
relief, is tried to the court. (See McAdams II, supra, 182 Cal.App.4th at p. 188.)
3 Monier filed a notice of cross-appeal, but has abandoned it.
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with the fact of class liability. The jury, as the fact finder here on the CLRA action and
pursuant to special interrogatories in its verdict form, found that plaintiff had established
the fact of class liability and the fact of class damages; and this was done through other
evidence that is unchallenged here, and which the trial court effectively accepted as the
fact finder in the court-tried UCL action.
DISCUSSION
I. The Trial Court Did Not Abuse Its Discretion in Excluding Dr. Lorden’s
Statistical Sampling Method and Accompanying Expert Opinion
Dr. Lorden testified as to the size of the class using the statistical method of
random sampling and extrapolation. (See Bell v. Farmers Ins. Exchange (2004)
115 Cal.App.4th 715, 746 (Bell).) The goal of Dr. Lorden’s method, in line with the goal
of statistical sampling generally, was to use a representative sample of the 127,746
subject homeowners to extrapolate to the whole. (See Duran v. U.S. Bank National Assn.
(2014) 59 Cal.4th 1, 38 (Duran).)4
Plaintiff’s CLRA and UCL class actions were both based on the same material
misrepresentation—i.e., against the backdrop of one of the three statements that Monier,
or an intermediary parroting Monier, made (i.e., 50-year life, permanent color, or
maintenance-free), Monier failed to disclose that it knew that the color on its slurry-
coated roof tiles eroded prematurely. (McAdams II, supra, 182 Cal.App.4th at pp. 186,
188.) As we stated in McAdams II, “an ‘inference of common reliance’ may be applied
to a CLRA class [and a UCL class] that alleges a material misrepresentation consisting of
a failure to disclose a particular fact.” (Id. at p. 178; see id. at p. 184.)
4 The 127,746 figure—which the trial court found was sufficiently supported and
acceptable and which the jury used, and which is not challenged in a cross-appeal—was
provided by plaintiff’s accounting expert, Clifford Kupperberg. Kupperberg based this
figure on census data of housing starts, invoice and production numbers from Monier’s
files, and testimony of Monier’s employees regarding sales figures and market shares.
6
The trial court found Dr. Lorden’s statistical sampling method lacked a reasonable
basis for accuracy.
As described by plaintiff, Dr. Lorden’s method comprised three steps: (1) a
random (i.e., representative) sample of the population of the 127,746 California
homeowners who had purchased or acquired Monier slurry-coated tile roofs (the sample
here comprised 22 homeowners); (2) based on whatever percentage of this sample the
jury believed had been exposed to a Monier misrepresentation prior to that purchase or
acquisition (statement of 50-year life, permanent color, or maintenance-free, against a
failure to disclose premature color erosion), Dr. Lorden extrapolated that percentage to
the overall population of the 127,746 homeowners (an essential element of Dr. Lorden’s
method, then, was to have the representative homeowners testify at trial, and have the
jury decide how many of those homeowners met “the proviso” of McAdams II); and (3)
Dr. Lorden provided the jury with a chart, listing those numbers, corresponding to each
percentage the jury could possibly assign. In this way, Dr. Lorden’s results would yield
the total number of California homeowners with Monier slurry-coated tile roofs who
satisfied “the proviso,” and thus were members of the class. Using Dr. Lorden’s method,
the jury found there were 2,000 class members.
In reviewing a trial court’s exclusion of an expert witness’s opinion testimony as
lacking a reasonable basis, we ask whether the trial court abused its discretion.
(Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564.) We find no abuse here.
The critical step in Dr. Lorden’s statistical sampling method was to obtain a
representative sample of the 127,746 population. To do this, 29 clusters of residential
development, comprising just over 4,700 homes, were identified statewide that had
Monier slurry-coated tile roof homes. Sixteen of these clusters were drawn from a survey
that Monier had done in 2005; the remaining 13 were identified by plaintiff. The goal
was to depose a representative homeowner from each of the 29 clusters. Plaintiff’s
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counsel sent a letter and attached questionnaire randomly to 444 homeowners across the
29 clusters. Plaintiff deposed 22 of the homeowners; 16 of whom testified for plaintiff at
trial.5
In the recent decision of Duran, supra, 59 Cal.4th 1, issued after the trial here, our
state Supreme Court critiqued a statistical sampling method, in the process providing a
primer on statistical sampling. As Duran emphasized, the essence of such a method,
which is based on inferential statistics and probability theory, is to obtain a sample that is
sufficiently representative of a whole population so as to fairly support inferences about
the whole. (Duran, supra, 59 Cal.4th at p. 38.)
As we shall explain, the trial court, for several reasons taken together, did not
abuse its discretion in essentially finding that the method Dr. Lorden used was not based
on a representative sample. Indeed, the trial court’s ruling excluding Dr. Lorden’s
statistical sampling testimony was prescient in many respects, in light of the criticisms
Duran leveled at the statistical sampling method at issue there.
First, the sample size here was small. “A sample must be sufficiently large to
provide reliable information about the larger group. ‘How many cases need to be
sampled? This depends in large part on the variability of the population. The more
diverse the population, the larger the sample must be in order to reflect the population
accurately. . . .’ [Citation.] . . . [¶] . . . [¶] . . . With input from the parties’ experts, the
[trial] court must determine that a chosen sample size is statistically appropriate and
capable of producing valid results within a reasonable margin of error.” (Duran, supra,
59 Cal.4th at p. 42.)
In Duran, the class consisted of 260 employees who sued for unpaid overtime,
claiming they had been misclassified as exempt from overtime compensation under the
5 Monier presented at trial the deposition testimony of the remaining six homeowners.
8
outside salesperson exemption law. (Duran, supra, 59 Cal.4th at p. 12.) The Duran
court found the sample size there of 20 (plus the two named plaintiffs) “[w]as [t]oo
[s]mall” for determining the fact of class liability and damages. (Id. at p. 42; see id. at
pp. 33, 35, 37, 39-40.) Admittedly, the class in Duran may have been more variable than
the class here (given the Duran employees’ various work schedules), and Dr. Lorden’s
expert testimony was designed to determine class size rather than to determine the fact of
class liability or damages (i.e., Dr. Lorden provided an extrapolation method for the jury
to use in determining the number of homeowners, out of the 127,746, who met the
“proviso” we set forth in McAdams II). But here, we have a sample of only 22 out of a
(potential) class of 127,746. As the trial court noted, Dr. Lorden testified that taking 88
depositions (rather than the 22) would have reduced the margin of error by 50 percent
(this fact also demonstrates that the sample of 22 may have an intolerably large margin of
error). (Duran, supra, at p. 46.) In contrast, in Bell, supra, 115 Cal.App.4th 715, which
upheld a statistical method of random sampling and extrapolation for the determination of
aggregate classwide damages in a class action for unpaid overtime, the parties deposed a
sample of 295 employees out of a class of 2,402, which yielded a small margin of error.
(Bell, supra, at p. 724; see id. at pp. 746-756; see also Duran, supra, 59 Cal.4th at p. 42.)
Second, the random nature of the sample of 22 is questionable. “A sample must
be randomly selected for its results to be fairly extrapolated to the entire class. . . . ‘A
“random sample” is one in which each member of the population has an equal probability
of being selected for inclusion in the sample.’ ” (Duran, supra, 59 Cal.4th at p. 43.)
The low response rate to plaintiff counsel’s 444 letters (with attached
questionnaire) may have resulted in “nonresponse bias” in the sample of 22 (i.e., those
who do not respond have no probability of inclusion in the sample). (Duran, supra,
59 Cal.4th at p. 43.) Also, the letter and questionnaire from plaintiff’s counsel—while it
did not mention “the proviso”—sought, as the trial court noted, the homeowners’
9
“assistance” in making plaintiff’s case at trial. As the trial court recognized, this placed
plaintiff’s counsel directly into administering and implementing the statistical sampling
method. This letter and questionnaire, therefore, may have also resulted in “selection
bias” in the sample of 22 (i.e., a nonrandom criterion or a selective inclusion or exclusion
in choosing the sample). (Duran, at p. 43.) Contrast this process with a “double blind”
survey in which the questioner and the respondent do not know the survey’s sponsor or
the survey’s purpose.
Third, as the trial court observed, the essential element of the statistical sampling
method here—the use of live testimony to prove or disprove satisfaction of “the
proviso”—was not developed or created by Dr. Lorden (but rather by plaintiff’s counsel),
and was not based on any prior studies or research in the relevant fields of statistics or
surveys. Furthermore, plaintiff had only 16 of the 22 homeowners testify at trial
(plaintiff had deposed all 22, and Monier presented at trial the testimony of the other six).
Fourth, and finally, Dr. Lorden significantly criticized the homeowner survey
method that Monier undertook in 2005, when class certification was at issue, but
nevertheless relied on this survey to obtain 16 of the 29 clusters of relevant residential
development used in drawing the sample of 22.
For these reasons, taken together, we conclude the trial court did not abuse its
discretion in excluding Dr. Lorden’s expert testimony.
II. The Trial Court Erroneously Granted Monier’s Motions for
Nonsuit (CLRA action) and for Judgment (UCL action)
In granting these two motions, the trial court ruled: “[P]laintiff’s case rests upon
the methodology and expert opinion of Dr. Lorden. . . . [H]is opinions [have been]
excluded. Therefore, there is no legally relevant evidence before the fact-finder as to the
size of the class, the liability of [Monier] or the amount of damages. [Monier’s] motion
for nonsuit as to the CLRA cause of action is granted. [Monier’s] motion for judgment
10
on the UCL cause of action is granted.” Based on this ruling, the trial court granted
judgment to Monier.
We conclude the trial court erred. Basically, the trial court confused the extent of
class liability (Dr. Lorden’s statistical sampling method and expert opinion) with the fact
of class liability and damages (established through other evidence at trial, not challenged
on a cross-appeal here).
Monier’s motion for judgment on the UCL action was subsumed within its motion
for nonsuit on the CLRA action. Thus, the review of the nonsuit motion is the pivotal
review.
“In reviewing a grant of nonsuit, we ‘[evaluate] the evidence in the light most
favorable to the plaintiff.’ [Citation.] We will not sustain the judgment ‘ “unless
interpreting the evidence most favorably to plaintiff’s case and most strongly against the
defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a
judgment for the defendant is required as a matter of law.” ’ ” (Nally v. Grace
Community Church (1988) 47 Cal.3d 278, 291.)
Dr. Lorden’s excluded statistical sampling method was designed to measure the
number of individuals—out of the trial court-accepted and jury-determined figure of
127,746 relevant California homes—who met the class-membership “proviso” we set
forth in McAdams II (i.e., prior to purchasing or obtaining their Monier roof tile product,
they were exposed to a statement of 50-year life, permanent color, or maintenance-free),
and thus were members of the CLRA and the UCL classes.6 Dr. Lorden’s excluded
testimony, then, concerned the extent of the class—i.e., the size of the class.
6 And, again, the 127,746 figure was established by plaintiff’s accounting expert,
Clifford Kupperberg, and is not challenged in a cross-appeal.
11
Other evidence at this lengthy trial established the fact of class liability and class
damages.
To establish the fact of class liability, plaintiff presented (1) the testimony of 20
relevant homeowners, (2) nine additional witnesses regarding Monier’s relevant
marketing practices, and (3) Monier’s relevant marketing literature. Monier countered
with a litany of relevant witnesses of its own. As Duran recognized, “[c]ertainly class
counsel are entitled to select named plaintiffs [and, we add, unnamed plaintiffs] [to
testify] in a manner that enhances their position”—here, plaintiff’s position on class
liability. (Duran, supra, 59 Cal.4th at p. 43.)7
To establish the fact of class damages, plaintiff presented testimony from a
damages expert, Phillip Waier, who opined that the average cost to recoat a Monier tile
roof was $3,705. (See Bell, supra, 115 Cal.App.4th at p. 751 [in a class action, if
appropriate, a trial court has the discretion to weigh the calculation of average damages
that are imperfectly tailored to the facts of particular class members with the opportunity
such a calculation affords to vindicate an important statutory policy without unduly
burdening the courts].) Again, the jury and the trial court found this figure acceptable,
and it is not challenged in a cross-appeal.
Pursuant to special interrogatories in its verdict form, the jury found that plaintiff
relied on a material misrepresentation from Monier (failure to disclose premature color
erosion) to plaintiff’s damage.
7 But, as Duran cautioned in its very next sentence, “that tactical choice should not
compromise the statistical approach required for random sampling.” (Duran, supra,
59 Cal.4th at p. 43.) These two observations from Duran allow us to reconcile (1) the
improper use of Dr. Lorden’s sample of 22 as insufficiently representative to measure
how many homeowners satisfied “the proviso” of McAdams II, with (2) the proper use of
the same sample from which to draw witnesses on plaintiff’s behalf to establish Monier’s
liability.
12
Consequently, the trial here determined the fact of class liability and the fact of
class damages. What the trial has not yet determined—in light of the proper exclusion of
Dr. Lorden’s statistical sampling testimony—is the number of individuals in the class.
The remand will determine that (and each class member will have to show his or her
eligibility for recovery—i.e., he or she has or had a Monier slurry-coated color concrete
tile roof at issue with premature color erosion).8
8 In McAdams II, we stated regarding the issue of individual damages (in considering
whether a class could be certified here): “ ‘A class action can be maintained even if each
class member must at some point individually show his or her eligibility for recovery or
the amount of his or her damages, so long as each class member would not be required to
litigate substantial and numerous factually unique questions to determine his or her
individual right to recover.’ [Citation.] Here, the claims of all class members ‘ “stem
from the same source” ’—Monier’s failure to disclose that the color composition of its
roof tiles may erode to bare concrete prematurely. [Citation.] To obtain damages, each
class member [(1)] will have to show the representation made to him or her that
accompanied this failure to disclose (e.g., 50–year/lifetime, permanent color,
maintenance-free, or the like) and [(2)] will have to show the amount of his or her
damages. But these two showings do not invoke ‘substantial and numerous factually
unique questions to determine [the] individual right to recover’ damages, and therefore
are not a proper basis on which to deny class certification.” (McAdams II, supra,
182 Cal.App.4th at pp. 186-187.)
Now that the class trial has taken place, we want to clarify the procedure on remand in
light of these two required showings specified in McAdams II.
First, as we have made clear in this opinion, a representative statistical sampling
method (or an equivalent method) can be used to show the number of individuals who
satisfy the McAdams II proviso—i.e., who, prior to purchasing or obtaining their Monier
roof tile product, were exposed to a statement of 50-year life, permanent color,
maintenance-free, or the like. Such a showing will meet the first requirement of
McAdams II that each class member must show the representation made to him or her
that accompanied the failure to disclose.
Second, determining damages in terms of an aggregate classwide damages figure was
proper here (e.g., at trial, the jury found there were 2,000 class members, and multiplied
this figure by $3,705—the average cost to recoat a Monier slurry-coated tile roof—to
arrive at an aggregate classwide damages figure of $7.41 million). As the Bell court
noted, “[I]t [is] within the discretion of the trial court to weigh the disadvantage of
statistical inference—the calculation of average damages imperfectly tailored to the facts
13
In the end, the simplest way to look at this is if the trial court were correct in
deeming Dr. Lorden’s excluded testimony as the only legally relevant evidence on class
size, liability, and damages, there would have been no need for the parade of witnesses
and evidence, and the weeks of trial, regarding the facts of class liability and class
damages. For plaintiff’s case, Dr. Lorden alone would have sufficed.
We conclude the trial court erroneously granted Monier’s motions for nonsuit (the
CLRA action) and for judgment (the UCL action).9
of particular employees [who comprise the class]—with the opportunity it afford[s] to
vindicate an important statutory policy without unduly burdening the courts. . . . ‘[An
appellate court’s] review of a trial court’s plan for proceeding in a complex case is a
deferential one that recognizes the fact that the trial judge is in a much better position
than an appellate court to formulate an appropriate methodology for a trial.’ ” (Bell,
supra, 115 Cal.App.4th at p. 751.) And, as Bell added, “[T]he proof of aggregate
[classwide] damages . . . by [a representative] statistical inference reflect[s] a level of
accuracy consistent with due process under the [Connecticut v.] Doehr [(1991) 501 U.S.
1, 11] [115 L.Ed.2d 1] balancing test [(under that test, the question whether a procedural
device used in judicial proceedings to deprive a defendant of property comports with due
process is determined by a balancing of private and governmental interests with the risk
of erroneous deprivation)]. This conclusion is supported by persuasive authority.” (Bell,
supra, at p. 755.)
So, using a calculation of aggregate classwide damages is proper here—if that
calculation uses a class size number (as a multiplicand) that has been determined from a
representative statistical sampling method (or an equivalent method). And such a
calculation will meet the second requirement of McAdams II that each class member must
show the amount of his or her damages, so long as each class member has shown his or
her eligibility for recovery (i.e., he or she has or had a Monier slurry-coated color
concrete tile roof at issue with premature color erosion). (See McAdams II, supra,182 Cal.App.4th at p. 186 [“ ‘A class action can be maintained even if each class member
must at some point individually show his or eligibility for recovery or the amount of his
or her damages . . .’ ” (italics added)].)
9 In its respondent’s brief, Monier presents an undeveloped argument that the judgment
can be affirmed on the independent ground that plaintiff failed to prove delayed
discovery for statute of limitation purposes as to absent class members. In a special
interrogatory in its verdict form, the jury found, on the issue of statute of limitations, that
Monier did not prove that plaintiff’s claimed harm occurred before November 14, 2000.
14
DISPOSITION
The judgment and the award of costs to Monier are reversed. The trial court is
directed to enter judgment of class liability and damages for plaintiff on the CLRA
action, based on the jury’s findings of class liability and class damages ($3,705 per home
(see Bell, supra, 115 Cal.App.4th at pp. 746-756)). The matter is remanded to the trial
court to determine class size and individual eligibility for recovery (such eligibility has
been specified herein), through any methods that are appropriate, including representative
statistical sampling or witness testimony or survey, or a claims process, individualized
mini-hearings, or some other appropriate technique. (Brinker Restaurant Corp. v.
Superior Court (2012) 53 Cal.4th 1004, 1054 (conc. opn. of Werdegar, J.); see Duran,
supra, 59 Cal.4th at pp. 33, 40, fn. 34 (maj. opn.) [applying that footnote’s observation
here, we remind the parties that now that the fact of class liability and the fact of class
damages have been established, both sides may benefit from a fair, cost-effective
approach to determining class membership]; see also id. at p. 55 (conc. opn. of Liu, J.).)
Since the UCL action is subsumed within the CLRA action and since the trial court
excluded only Dr. Lorden’s testimony, the trial court is directed to enter judgment of
class liability and damages for plaintiff on the UCL action, and to impose, on remand, an
Plaintiff filed his original complaint in November 2003. The shortest statute of
limitations that applies here, the CLRA, is three years. (Civ. Code, § 1783; see id.,
§ 1770.) Against this backdrop, we consider the question of statute of limitations settled
against Monier.
15
appropriate remedy for the UCL claim, if necessary. Monier’s abandoned cross-appeal is
dismissed. Plaintiff is awarded his costs on appeal. (Cal. Rules of Court, rule 8.278
(a)(1), (2).)
BUTZ , J.
We concur:
BLEASE , Acting P. J.
HOCH , J.
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