Michael Brantley, Jr. Versus City of Gretna & Redflex Traffic Systems, Inc. ( 2022 )

MICHAEL BRANTLEY, JR., ET AL NO. 21-CA-574
VERSUS FIFTH CIRCUIT
CITY OF GRETNA & COURT OF APPEAL
REDFLEX TRAFFIC SYSTEMS, INC.
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 760-182, DIVISION "C"
HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING
August 05, 2022
SUSAN M. CHEHARDY
CHIEF JUDGE
Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Marc E. Johnson
AFFIRMED
SMC
FHW
MEJ
COUNSEL FOR PLAINTIFF/APPELLEE,
MICHAEL BRANTLEY, JR.; DEBRA BOUDREAUX, INDIVIDUALLY AND
ON BEHALF OF HER DECEASED HUSBAND, ROBERT BOUDREAUX;
JUDITH TRAIGLE; CHARLES W. BRISON, JR.; PATRICIA CUNNINGHAM;
DELORES TORTORICH; TERENCE S. COOPER, SR.; AND ERIN STREVA
Gordon L. James
Robert M. Baldwin
G. Adam Cossey
Margaret H. Pruitt
COUNSEL FOR DEFENDANT/APPELLEE-2ND APPELLANT,
CITY OF GRETNA
Leonard L. Levenson
Christian W. Helmke
Colleen B. Gannon
Donna R. Barrios
E. John Litchfield
Michael J. Marsiglia
COUNSEL FOR DEFENDANT/APPELLANT,
REDFLEX TRAFFIC SYSTEMS, INC.
Nancy S. Degan
Kent A. Lambert
Leopoldo J. Yanez
Emily Olivier Kesler
Kim M. Boyle
Allen C. Miller, Sr.
CHEHARDY, C.J.
Defendants, the City of Gretna (“Gretna”) and Redflex Traffic Systems, Inc.
(“Redflex”) appeal the trial court’s March 30, 2021 judgment granting plaintiffs’
motion for class certification, appointment of class representatives, and
appointment of class counsel in their lawsuit challenging the legality of an
Electronic Speed Enforcement Ordinance adopted by the Gretna City Counsel in
2008. For the following reasons, we find the elements necessary for class
certification are present and we affirm the trial court’s judgment certifying the
class.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In April 2008, the city council of Gretna unanimously adopted Ordinance
3678. This Ordinance amended Chapter 90 of the City of Gretna’s Code of
Ordinances to add sections 505-511 in order to establish and authorize the use of a
photographic vehicle speed enforcement system. The Ordinance provided that the
Gretna Police Department (“Department”) was responsible for its enforcement and
administration, but that “the department may enforce and administer [the
Ordinance] through one or more contractors.” In this regard, the City of Gretna
contracted with Redflex for the enforcement of the Ordinance, including the
issuance of citations and collection of fees. The Ordinance, codified as Gretna
City Ordinances 90-505 through 90-511, became effective on December 15, 2008,
and thus began defendants’ operation of Gretna’s Electronic Photo Enforcement
Program (the “Program”).1
Pursuant to the Program, Redflex places mobile, photograph speed
enforcement equipment (including radar, cameras, and a computer system) on the
1
The Ordinance provided that the Program would operate under the authority of the Gretna Police
Department in the offices of the Clerk of Court for the City of Gretna Mayor’s Court.
21-CA-574 1
side of public roadways located within the city limits of Gretna, Louisiana, which
roadways include, but are not limited to, Lafayette Street, Westbank Expressway,
Gretna Boulevard, LaPalco Boulevard, Franklin Avenue, and Whitney Avenue.2 If
the computer system records a vehicle traveling in excess of the posted speed limit,
it takes a short video and photographs the vehicle. That information is then
uploaded and transmitted to Redflex’s processing center in Phoenix, Arizona, via
internet transmission. Using the license plate captured by the camera, Redflex then
gathers information concerning the vehicle and its registered owner through the
National Law Enforcement Telecommunication System (“NLETS”), and Redflex’s
computer system then auto-fills a citation form with the violation information.
That citation is uploaded into Redflex’s proprietary “SuperScreen” software
system, which contains a photographic image of the vehicle captured by the
cameras, the license plate, and the name of the registered owner. Once the citation
is reviewed by a Gretna Police Department employee, and it is determined that a
violation has occurred, Redflex is then authorized to issue a Notice of Violation
(“NOV”)3 to the vehicle’s registered owner, which includes the electronic
signature and badge number of the city’s designated officer.4
Civil penalties are assessed based upon the vehicle’s speed as recorded by
the radar equipment, and payment of the stated fine is due to the City of Gretna
within thirty days. Regardless of the person actually operating the vehicle and
2
Other locations where the photograph speed enforcement equipment is placed include: Belle
Chasse Highway, First Street, US Highway 190, Creagan Avenue, Anson Street, Claire Avenue, Hancock
Street, Louisiana Highway 23, Louisiana Highway 18, Louisiana Highway 466, Stumpf Boulevard,
Derbigny Street, Huey P. Long, Mason Avenue, and Monroe Street.
3
Unlike the Uniform Traffic Citations, the form of the NOV is not approved by the Deputy
Commissioner of the Louisiana Department of Corrections. NOVs are not Uniform Traffic Citations and
do not contain any notice to appear or any promise to appear. Additionally, as a civil matter, the
Ordinance exempts the Department from reporting an NOV violation, or payment of a NOV, to the
Department of Public Safety and Corrections because an NOV is not a Uniform Traffic Citation.
4
No Gretna Police Department employee, nor the City of Gretna, issues any NOV under the
Ordinance, but rather, they authorize Redflex to do so. If, upon checking the calibration of the electronic
photographic speed equipment, Redflex determines there is an error in calibration, Redflex does not
forward any violation documentation for Gretna to review.
21-CA-574 2
committing the violation, the Ordinance imposes liability on the registered owner.
The Ordinance does provide, however, that the owner may shift liability to the
operator.
The Ordinance provides that a citation recipient may request an
administrative adjudication hearing, and states, “the decision of the hearing officer
shall be the final decision by city government.” If the hearing officer determines
the cited vehicle owner is liable, the owner is assessed an additional $30.00 for
requesting the hearing. Additionally, the Ordinance provides that a person or
persons aggrieved by a hearing officer’s decision may file a petition for judicial
review to the Mayor’s Court of the City of Gretna within thirty days of the entry of
decision. Once a decision by the Mayor’s Court is issued, the aggrieved person
may pursue supervisory review and/or appellate review as provided by Louisiana
law.
In 2016, the City of Gretna adopted a revised Code of Ordinances and
Ordinance 90-505 through 90-511 was re-enacted as Ordinance 52-365 through
52-371. While the numbers associated with the Ordinance changed, its substance
remained the same.
In April 2016, plaintiffs filed a class action petition against Gretna and
Redflex, seeking damages (i.e., a refund of all fines pursuant to La. C.C. art.
22995); a declaratory judgment finding that Gretna Ordinance 52-365 et seq.
(formerly Gretna Ordinance 90-505), which created the Electronic Photo
Enforcement Program, was “unlawful” as an ultra vires act and, therefore, void ab
initio; and, injunctive relief prohibiting continued operation of the Program.6
5
La. C.C. art. 2299 provides that “[a] person who has received a payment or a thing not owed to
him is bound to restore it to the person from whom he received it.”
6
Specifically, plaintiffs allege that the fines they paid pursuant to the Ordinance were imposed by
defendants without authority, in violation of prohibitory laws (namely, La. R.S. 32:398.1, La. R.S.
32:398.2, La. R.S. 32:235(C), and La. R.S. 32:41), and in violation of the Louisiana Constitution (namely,
La. Const. art. I, § 2 for lack of procedural due process, and La. Const. art. VI, § 9, which prohibits local
government subdivisions from enacting ordinances that govern private or civil relationships), rendering
21-CA-574 3
Plaintiffs filed their first amended class action petition in July 2016, adding
additional plaintiffs/class representatives and reiterating the same allegations and
claims.7 In May 2020, plaintiffs filed their second amended petition, and within
fourteen days of service thereof, on May 29, 2020, filed a motion for class
certification, appointment of class representatives, and appointment of class
counsel. Defendants, Gretna and Redflex, opposed class certification on various
grounds.
At the close of the hearing on plaintiffs’ motion, the trial court granted class
certification. The trial court concluded the common question is whether
defendants’ administrative imposition of fines for moving violations in the City of
Gretna is in violation of a prohibitory law and an ultra vires act done without
authority. It also found the evidence showed: (1) the class of individuals is so
numerous that joinder is impracticable, (2) the issue is common to the class, (3) the
claims of the representatives appointed are typical of the claims of the class, and
(4) the named representatives adequately represent the class. Finding the class
action procedure superior to any other available method for resolving the single,
paramount issue concerning the Program, the trial court reasoned it would be
imprudent to try the cases individually as they may result in incompatible
judgments, and class action is appropriate due to the possibility that many of the
claims made by the class members may be small or nominal in nature.
Accordingly, the trial court certified the following class:
All persons who received Notice of Violation from the
Gretna Traffic Enforcement Program, as set forth in
Gretna Ordinance 31678, originally codified as Ord. 90-
505 through 90-511 and re-enacted as Ord. 52-365
through 53-371, and who subsequently paid any fine, fee,
them void ab initio. According to plaintiffs, if they prevail, they will be entitled to the declaratory and
injunctive relief they seek, as well as a return of the legally void fines under La. C.C. art. 2299.
7
In their first amended class action petition, plaintiffs also removed a claim for spoliation of
evidence that was included in their original petition.
21-CA-574 4
civil penalty, costs or other payments in full or partial
satisfaction of the Notice of Violation.
Essentially, the proposed class will consist of all persons who both received
an NOV and subsequently paid, either partially or in full, in satisfaction of the
NOV. Thus, if you received an NOV, but did not pay it, you are not in the class.
If you did not receive an NOV, but merely paid on behalf of someone else that did,
you are not a member of the class.
The court appointed the following as class representatives: Michael
Brantley, Jr.; Deborah Boudreaux, individually, and on behalf of her late husband,
Robert Boudreaux; Judith Traigle; Charles W. Birson, Jr.; Patricia Cunningham;
Delores Tortorich; Terence S. Cooper, Sr.; and Erin Streva. The court further
appointed Gordon L. James, Robert M. Baldwin, G. Adam Cossey, and Margaret
H. Pruit as counsel for the class.
Gretna and Reflex timely appealed the trial court’s judgment.
ISSUES PRESENTED FOR REVIEW
On appeal, Gretna alleges the following assignments of error: (1) the trial
court erred in determining that plaintiffs carried their burden of proof under La.
C.C.P. art. 591(A) for class certification; (2) the trial court erred in failing to
perform the requisite rigorous analysis and erred as a matter of law in holding that
plaintiffs satisfied their burden of proof under La. C.C.P. art. 591(B)(3); and (3)
the trial court erred in failing to reach the issue (deemed moot after certifying the
class under La. C.C.P. art. 591(B)(3)), and holding that La. C.C.P. arts. 591(B)(1)
and 591(B)(2) are inapplicable to this case, and cannot be satisfied on the face of
plaintiffs’ pleadings or the record in this case. Redflex also appeals alleging the
trial court erred in using the wrong legal standard in certifying plaintiffs’ proposed
class, and in finding that plaintiffs carried their burden of proof.
21-CA-574 5
APPLICABLE LAW
Standard of Review
The standard of review for a trial court’s ruling on a motion for class
certification is tri-parte. Factual findings are subject to the manifest error standard
of review. Brooks v. Union Pacific R. Co., 08-2035 (La. 5/22/09), 13 So.3d 546,
554. A trial court has wide discretion in deciding whether to certify a class. Id.Subject to the manifest error standard, its factual findings can only be reversed
upon finding, based on the entire record, no reasonable factual basis for the factual
finding and the factfinder is wrong. Stobart v. State, through Department of
Transp. and Development, 617 So.2d 880, 882 (La. 1993). However, we review its
ultimate decision of whether or not to certify the class under the abuse of discretion
standard. Baker v. PHC-Minden, L.P., 14-2243 (La. 5/5/15), 167 So.3d 528, 538.
Implicit in this deference “is recognition of the essentially factual basis of the
certification inquiry and of the district court’s inherent power to manage and
control pending litigation.” Id; Brooks, 13 So.3d at 554. The question of whether
the trial court applied the correct legal standards in determining whether to certify
the class, however, is reviewed de novo. Baker, 167 So.3d at 538.
Class Actions Generally
A class action is a nontraditional procedure permitting representatives with
typical claims to sue or defend on behalf of, and stand in judgment for, a class of
similarly situated person when a question of law or fact is common or general
interest to persons so numerous as to make it impracticable to bring them all before
the court. Price v. Martin, 11-0853 (La. 12/6/11), 79 So.3d 960, 966; Ford v.
Murphy Oil U.S.A., Inc., 96-2913, 96-2917, 96-2929 (La. 9/9/97), 703 So.2d 542,
544. In such cases, the jurisprudence is well-settled that courts should err on the
side of maintaining the class action. Roberson v. Town of Pollock, 05-332 (La.
21-CA-574 6
App. 3 Cir. 11/9/05), 915 So.2d 426, 432-33, writ denied, 06-0213 (La. 4/24/06),
926 So.2d 550.
In general, the fundamental objective of the class action procedural devise is
the achievement of economies of time, effort, and expense. Husband v. Tenet
HealthSystems Memorial Medical Center, Inc., 08-1527 (La. App. 4 Cir. 8/12/09),
16 So.3d 1220, 1226, writ denied, 09-2163 (La. 12/18/09), 23 So.3d 949; Lewis v.
Texaco Exploration and Production Co., Inc., 96-1458 (La. App. 1 Cir. 7/30/97),
698 So.2d 1001, 1004. With respect to the parties, the purpose and intent of the
class action is to adjudicate and obtain res judicata effect on all common issues
applicable not only to the class representatives who bring the action, but also to all
others who are similarly situated. Price, 79 So.3d at 966. A class action is purely
a procedural device and does not impinge upon the merits of the underlying
litigation or confer substantive rights. See Baker, supra, 167 So.3d at 541-42. A
class certification hearing does not determine liability and is not the correct venue
to decide the merits of the case or the defenses the defendant may allege. Chalona
v. Louisiana Citizens Property Ins. Corp., 08-257 (La. App. 4 Cir. 6/11/08), 3
So.3d 494, 503.
When reviewing a trial court’s ruling regarding class certification, a
reviewing court does not consider whether plaintiffs’ claims state a cause of action
or have substantive merit, or whether plaintiffs will ultimately prevail on the
merits. Oubre v. Louisiana Citizens Fair Plan, 07-66 (La. App. 5 Cir. 5/29/07),
961 So.2d 504, 509, writ denied, 07-1329 (La. 9/28/07), 964 So.2d 363. Rather,
the primary concern in the certification proceeding is simply whether the plaintiffs
have met the statutory requirements to become a class action and the evidence
establishes the procedural device is appropriate, not the merits of the underlying
litigation. Baker, 167 So.3d at 537, 541; Eisen v. Carlisle and Jacquelin, 417 U.S.
156, 178, 94 S.Ct. 2140, 2153, 40 L.Ed.2d 732 (1974).
21-CA-574 7
The class action is an exception to the rule that litigation be conducted by
and on behalf of the individual named parties only. Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011); Price, 79 So.3d at
966. Thus, the determination of whether a class action meets the requirements
imposed by law requires a “rigorous analysis.” Doe v. Southern Gyms, LLC, 12-
1566, 12-1572, 12-1580 (La. 3/19/13), 112 So.3d 822, 829; Brooks, 13 So.3d at
554. Such an analysis requires the trial court to “evaluate, quantify, and weigh the
relevant factors to determine to what extent the class action would in each instance
promote or detract from the goals of effectuating substantive law, judicial
efficiency, and individual fairness.” Southern Gyms, LLC, 112 So.3d at 829(quoting McCastle v. Rollins Environmental Services of Louisiana, Inc., 456 So.2d
612, 618 (La. 1984). In doing so, the trial court must actively inquire into every
aspect of the case and should not hesitate to require showings beyond the
pleadings, as a court must understand the claims, defenses, relevant facts, and
applicable substantive law in order to make a meaningful determination of the
certification issues. Dupree v. Lafayette Ins. Co., 09-2602 (La. 11/30/10), 51
So.3d 673, 680; see also Stevens v. Board of Trustees of Police Pension Fund of
City of Shreveport, 309 So.2d 144, 152 (La. 1975).
As a general rule, any errors to be made in deciding class action issues
should be in favor of and not against the maintenance of the class action, because a
class certification is always subject to modification or decertification if later
developments during the course of the trial so require. La. C.C.P. art.
592(A)(3)(d); Baker, 167 So.3d at 537; Defraites v. State Farm Mut. Auto. Ins.
Co., 03-1081 (La. App. 5 Cir. 1/27/04), 864 So.2d 254, 259, writ denied, 04-0460
(La. 3/12/04), 869 So.2d 832. To that end, La. C.C.P. art. 592(A)(3)(d) provides
that “[i]n the process of class certification, or at any time thereafter before a
decision on the merits of the common issues, the court may alter, amend, or recall
21-CA-574 8
its initial ruling on certification and may enlarge, restrict, or otherwise redefine the
constituency of the class or the issues to be maintained in the class action.”
Nonetheless, the trial court should evaluate the case closely before certifying the
class in light of the consequent burdens of giving notice and additional discovery.
Baker, 167 So.3d at 537-38; see also Dupree, 51 So.3d at 680; and Frank L.
Maraist, 1 Louisiana Civil Law Treatise: Civil Procedure, § 4.12, p. 105 (2d ed.
2008).
Class Certification Procedure—La. C.C.P. art. 591
In Louisiana, the procedure for class certification is governed by Article 591
of the Louisiana Code of Civil Procedure. Article 591(A) provides that a class
action must meet five threshold prerequisites, often referred to as numerosity,
commonality, typicality, the adequacy of representation, and objective definability
of class:
A. One or more members of a class may sue or be sued as representative
parties on behalf of all, only if:
(1) The class is so numerous that joinder of all members is
impracticable.
(2) There are questions of law and fact common to the
class.
(3) The claims or defenses of the representative parties
are typical of the claims or defenses of the class.
(4) The representative parties will fairly and adequately
protect the interest of the class.
(5) The class is or may be defined objectively in terms of
ascertainable criteria, such that the court may
determine the constituency of the class for purposes of
conclusiveness of any judgment that may be rendered
in the case.
Once these five prerequisites have been met, La. C.C.P. art. 591(B) lists
three additional criteria, only one of which need be satisfied for certification
21-CA-574 9
depending on the type of class action sought. Under Article 591(B), a trial court
must find that:
(1) The prosecution of separate actions by or against
individual members of the class would create a risk of:
a. Inconsistent or varying adjudications that would
establish incompatible standards of conduct for the
party opposing the class, or
b. Adjudications with respect to individual members of
the class would, as a practical matter, be dispositive of
the interests of other class members not parties to
those adjudications or would substantially
impair/impede their ability to protect those interests,
or
(2) The party opposing the class has acted or refused to act
on grounds generally applicable to the class, thereby
making appropriate final injunctive relief or
corresponding declaratory relief with respect to the class
as a whole, or
(3) The court finds that the questions of law or fact common
to the members of the class predominate over any
questions affecting only individual members, and that a
class is superior to other methods for the fair and
efficient adjudication of the controversy. The matters
pertinent to these findings include:
a. The interest of the members of the class in
individually controlling the prosecution of defense of
separate actions,
b. The extent and nature of any litigation concerning the
controversy already commenced by or against
members of the class,
c. The desirability or undesirability of concentrating the
litigation in the particular forum,
d. The difficulties likely to be encountered in the
management of a class action,
e. The practical ability of individual class members to
pursue their claims without class certification,
21-CA-574 10
f. The extent to which the relief plausibly demanded on
behalf of or against the class, including the
vindication of such public policies or legal rights as
may be implicated, justifies the costs and burdens of
class litigation.
La. C.C.P. art. 591(C) cautions that class “[c]ertification shall not be for the
purpose of adjudicating claims or defenses dependent for their resolution on proof
individual to a member of the class.” Nevertheless, where certification is
maintained, “the court shall retain jurisdiction over claims or defenses dependent
for their resolution on proof individual to a member of the class.” La. C.C.P. art.
591(C). Thus, “the mere fact that varying degrees of damages may result from the
same factual transaction and same legal relationship or that class members must
individually prove their right to recover does not preclude class certification.”
Bartlett v. Browning-Ferris Industries Chemical Services, Inc., 99-0494 (La.
11/12/99), 759 So.2d 755, 756.
With these legal principles in mind, we now turn to an examination of the
pleadings and evidence submitted with the motions to certify the class, in light of
the relevant law, to determine whether the trial court properly certified the class
herein.
DISCUSSION
The burden of proving that the statutory class certification criteria have been
satisfied falls on the party seeking to maintain the class action. Defraites, 864
So.2d at 259. Therefore, in this case, plaintiffs were required to prove the five
prerequisites of La. C.C.P. art. 591(A)(1), namely: numerosity, commonality,
typicality, adequacy of the representative, and an objectively definable class.
Likewise, plaintiffs were required to prove that common questions of fact or law
predominate over individual issues and that the class action procedure is superior
to any other method for resolving the controversy fairly and efficiently under La.
C.C.P. art. 591(B)(3). Price, 79 So.3d at 968.
21-CA-574 11
A review of the trial court’s oral reasons for judgment certifying the class
exhibits that the court specifically acknowledged that plaintiffs bore the burden of
proof, correctly identified the controlling law, acknowledged its duty to perform a
“rigorous analysis,” addressed each and every element, taking into consideration
defendants’ opposing arguments, and made individual findings that plaintiffs
satisfied their burden for each specific factor. For reasons explained more fully
below, we find no manifest error in the trial court’s findings, specifically the
finding of common factual and legal issues, and in finding that these issues
predominate over individual questions. Accordingly, we find no abuse of the trial
court’s discretion in certifying the class.
Numerosity
The first prerequisite to class certification, often referred to as “numerosity,”
is determined based upon the facts and circumstances of each individual case.
Chiarella v. Sprint Spectrum LP, 04-1433 (La. App. 4 Cir. 11/17/05), 921 So.2d
106, 119. This requirement reflects the basic function of the class action as a
device for allowing a small number of persons to protect or enforce rights or
claims for the benefit of many where it would be inequitable and impracticable to
join every person sharing an interest in the rights or claims at issue in the suit.
Baker, 167 So.3d at 542. See also Kent A. Lambert, “Certification of Class
Actions in Louisiana,” 58 La.L.Rev. 1085, 1114 (Summer 1998).
There is no set number above which a class is automatically considered so
numerous as to make joinder impractical as a matter of law. Baker, 167 So.3d at
542. Likewise, the numerosity element may not be met by simply alleging that a
large number of potential claimants exist. Id. While the determination of
numerosity is based in part upon the number of putative class members, it is also
based upon considerations of judicial economy in avoiding a multiplicity of
lawsuits, financial resources of class members, and the size of individual claims.
21-CA-574 12
Id.; Chalona, 3 So.3d at 500-01. Ultimately, to meet this requirement, plaintiffs
must show joinder is impractical, but, at the same time, that there is a definable
group of aggrieved persons. Dumas v. Angus Chemical Co., 25,632 (La. App. 2
Cir. 3/30/94), 635 So.2d 446, 450, writ denied, 94-1120 (La. 6/24/94), 640 So.2d
1349. However, the key is impracticability, and not impossibility of joinder. Gudo
v. Admin. of Tulane Educ. Fund, 06-1515 (La. App. 4 Cir. 9/5/07), 966 So.2d
1069, 1075, writs denied, 07-1959, 07-1992 (La. 1/11/08), 972 So.2d 1170.
Here, the record shows that, according to the data produced by defendants,
as of 2018, more than 175,000 NOV recipients have paid fines and are potentially
putative members of the class. Clearly, under the facts and circumstances
presented by this case, it is neither practicable nor judicially economical for the
court to be subjected to a multiplicity of individual claims of relatively nominal
value. Pursuant to the Ordinance, the fines imposed and paid per NOV recipient
average approximately $150.00. Because each plaintiff’s individual claim for
recovery falls well below the initial fee for filing a lawsuit, not including other
associated litigation costs and attorney fees, it would not be financially feasible or
economical for plaintiffs to pursue their claims individually. And, while joinder of
so many plaintiffs may not be impossible, in this instance, it would certainly be
impractical and judicially inefficient.
Because there is evidence in the record to support a finding that plaintiffs
carried their burden of proving the numerosity requirement, we cannot say this
finding was manifestly erroneous.
Commonality
The commonality prerequisite requires a party seeking class certification to
show that “there are questions of law or fact common to the class.” La. C.C.P. art.
591(A)(2). The mere existence of common questions will not satisfy the
commonality requirement. Price, 79 So.3d at 969. Nonetheless, the test of
21-CA-574 13
commonality is not a demanding one. Rapp v. Iberia Parish School Bd., 05-833
(La. App. 3 Cir. 3/1/06), 926 So.2d 30, 37, writ denied, 06-1331 (La. 9/22/06), 937
So.2d 386. It requires only that the class members’ claims depend on at least one
common contention that is capable of class-wide resolution—one where the
“determination of its truth or falsity will resolve an issue that is central to the
validity of each one of the claims in one stroke.” Price, 79 So.3d at 969; see also
Oubre, 961 So.2d at 510.
The fact that varying degrees of damage may result from the same incident
or that class members must individually prove their right to recover does not
preclude class certification. Schexnayder v. Entergy Louisiana, Inc., 04-636 (La.
App. 5 Cir. 3/29/05), 899 So.2d 107, 118, writ denied, 05-1255 (La. 12/9/05), 916
So.2d 1058; Daniels v. Witco Corp., 03-1478 (La. App. 5 Cir. 6/1/04), 877 So.2d
1011, 1014, writs denied, 04-2283 (11/19/04), 888 So.2d 204 and 04-2287 (La.
11/19/04), 888 So.2d 205. Additionally, the fact that resolution of class actions
may burden and place added responsibilities on the trial court should not be
allowed to overcome the fact that a class action meeting all of the requirements
will facilitate a prompt, efficient, and relatively inexpensive trial of the common
issues as opposed to separate cases. Schexnaydre, 899 So.2d at 118.
Fines imposed without due process of law are absolute nullities. White v.
White, 334 So.2d 1257, 1259 (La. App. 4th Cir. 1981). In order to satisfy due
process, there must be a procedure in place that provides a neutral and detached
adjudicator that satisfies “the appearance of complete fairness,” provides a
meaningful opportunity to be heard, and results in a determination based upon the
facts and the law. Allen v. Louisiana State Bd. of Dentistry, 543 So.2d 908, 914-
915 (La. 1989), as modified on reh’g (June 29, 1989); Wilson v. City of New
Orleans, 479 So.2d 891, 901 (La. 1985). Here, plaintiffs contend there are a
number of deficiencies in defendants’ method of adjudicating citations that render
21-CA-574 14
the Program at issue inadequate by constitutional due process standards: (1) the
City acting as a judge in its own case, wherein it awards itself millions of dollars
by determining whether it has met its own burden of proof; (2) having the hearing
officer perform dual roles as both prosecutor and adjudicator for at least seven
years; (3) conducting hearings and imposing fines without evidence; (4)
withholding evidence from citation recipients once evidence was actually obtained
and relied upon to impose fines; and (5) imposing fines based upon the arbitrary
and subjective whims of the hearing officer without reliance on the evidence or
law.
In response, defendants argue that commonality is lacking where the claims
involve individualized fact questions that cannot be resolved for all class members
with common answers. Specifically, defendants contend that each of the plaintiffs’
due process claims are too divergent to establish commonality. Defendants argue
that in regards to plaintiffs who did not request a hearing, they must weigh each
plaintiff’s circumstances to determine whether the particular plaintiff has standing,
the plaintiff’s claim is barred under the voluntary payment doctrine, or that the
plaintiff waived due process by choosing not to request a hearing. Defendants
further argue that individual consideration of numerous material facts is required
for plaintiffs who did request a hearing. In particular, defendants argue that
plaintiffs have asserted a generalized lack of due process without demonstrating
uniform adherence to a common policy of procedure applicable to every member
of the putative class that uniformly deprived them of meaningful notice and an
opportunity to be heard.
In addition to the foregoing, plaintiffs also allege that defendants are acting
in violation of state law and without authority because they have never obtained
DOTD approval for their Program. With regard to state highways, La. R.S.
32:235(C) states that “[n]o local, municipal or parish authority shall place or
21-CA-574 15
maintain any traffic control device upon any state maintained highway without
having first obtained written approval of the department.” Moreover, La. R.S.
32:41 states that any local ordinance that will supplement, alter, or change state
traffic laws on a state highway must be approved by the DOTD. Here, defendants
have admittedly placed their traffic control devices on state-maintained highways
and supplemented state traffic law with their local ordinance without DOTD
approval.
Likewise, the Louisiana Highway Regulatory Act provides for the
implementation of local traffic enforcement “by means of police officers or by the
use of traffic-control devices approved by the Department.” La. R.S. 32:41(A)(2).
The Department is defined as the DOTD. La. R.S. 32:1(14). Thus, plaintiffs
contend that the use of these devices on local streets without DOTD approval is
also unlawful and means that the fines are imposed without authority.
Defendants contend that plaintiffs’ claims under La. R.S. 32:235 and 32:41
require individualized determinations in order to afford defendants with the
opportunity to establish that the equipment capturing the speeding violation at
issue was not a traffic-controlled device under La. R.S. 32:235. According to
defendants, individualized determinations are required in regards to whether
International Association of Chiefs of Police (“IACP) certified systems were
utilized so that defendants can present a defense that each violation was captured
by an IACP approved system. Defendants argue that plaintiffs’ claim for
violations of La. Const. Art. 6, § 9 hinges on individualized determinations. In
particular, defendants contend their defenses based on the voluntary payment
doctrine, natural obligations, waiver, whether due process was afforded under the
particular circumstances presented as to each putative plaintiff, and defenses under
La. C.C. art. 2299, each require individualized fact determinations that are
incapable of class-wide resolution.
21-CA-574 16
After considering the arguments of counsel, the trial court concluded that
plaintiffs satisfied their burden of proving the “commonality” requirement based
on its finding that the legal questions and/or theories presented are common to each
of the class members—i.e., whether the Ordinance violates prohibitory laws and/or
Constitutional provisions, and the legality and/or authority of the fines imposed—
and that these questions can be resolved as to all of the class members regardless of
whether or not they requested a hearing. It ruled that defendants’ contention that
their purported defenses may preclude a specific plaintiff from recovery to be
without merit, giving the example that if the trier of fact finds that defendants’
administrative imposition of fines for moving violations is in violation of a
prohibitory law and an ultra vires act done without authority, then all class
members are entitled to a refund.
Contrary to defendants’ contention, we find that individualized inquiries into
whether or not a plaintiff requested a hearing, whether recovery could be barred
under the voluntary payment doctrine, or on the basis that a plaintiff waived his or
her due process rights, are irrelevant to answer the question of whether defendants
imposed the fines in violation of a prohibitory law. Similarly, the question of
whether defendants utilized a system-certified by the IACP, as required by the
Ordinance, does not require individual consideration. A review of each individual
NOV is unnecessary in order for defendants to determine whether the mobile unit
and systems at issue are certified by IACP. Either each of the photo enforcement
systems used for the Program were certified by the IACP, or they were not. If they
were, then plaintiffs’ claim fails on this specific issue.
Additionally, the legal questions and/or theories common to the class
members are based upon a common resolution of facts and do not require
individualized determinations. For example, each plaintiff in the instant case will
have received a NOV and will have paid it, in full or in part, either voluntarily,
21-CA-574 17
after a determination of liability following a hearing, or based upon a finding of
“guilty” for failure to appear at a scheduled hearing. As to each plaintiff,
defendants will be able to ascertain the total amount of the fine, fee, or penalties
that were paid. Redflex will have pursued payment of the NOV after Gretna
determined liability. Merely because the facts pertaining to individual NOVs may
not be identical does not mean that commonality is lacking. Notwithstanding that
plaintiffs may have responded differently to receipt of a NOV (i.e., some may have
paid in lieu of a hearing, some may have paid after a determination of liability by a
hearing officer, and some may have paid after failing to appear for an
administrative hearing), each claim shares a common issue that is central to the
validity of all the claims: whether defendants’ administrative imposition of fines
for moving violations is in violation of a prohibitory law and an ultra vires act
done without authority.
Because our review of the record shows that it reasonably supports the trial
court’s findings on the issue of commonality, we do not find the trial court’s
determination on this issue to be manifestly erroneous.
Typicality
The third prerequisite to class certification is that the claims or defenses of
the representative parties consist of a cross-section, or are typical, of the claims or
defenses of the class. La. C.C.P. art. 591(A)(3). The test for typicality, like
commonality, is not an arduous one. Conrad v. Lamarque Ford, Inc., 08-673 (La.
App. 5 Cir. 5/12/09), 13 So.3d 1154, 1165, writ denied, 09-1819 (La. 11/6/09), 21
So.3d 310. This requirement determines whether a sufficient relationship exists
between the injury to the named plaintiff and the conduct affecting the class, so
that the court may properly attribute a collective nature to the challenged conduct.
Baker, 167 So.3d at 544. A plaintiff’s claim is typical if it arises out of the same
event, practice, or course of conduct giving rise to the claims of other class
21-CA-574 18
members and those claims are based on the same legal theory. Gudo, 966 So.2d at
1078. To satisfy the typicality requirement, plaintiffs need not produce two, or
even one, of every kind of claim or of every person included in the class, but
rather, must only show that the plaintiffs “typically” and “adequately” demonstrate
that they represent a cross-section of the claims asserted on behalf of all class
members. Id. at 1079; see also Davis v. Jazz Casino Co., L.L.C., 03-5 (La. App. 4
Cir. 1/14/04), 864 So.2d 880, 889.
Defendants argue that plaintiffs’ claims are not typical because the claims
(a) focused on different phases of the administrative process, (b) do not arise from
the same event, (c) were the result of separate speeding incidents detected by
different pieces of equipment deployed at different times and locations, and (d)
were subject to hearings administered by different hearing officers. We disagree.
The trial court found that plaintiffs’ claims all rise out of the same “course of
conduct”—defendants’ imposition of fines under the Ordinance—and the majority
of those claims are based on the same legal theories and, likewise, are based upon
common factual and legal determinations. Because we conclude that there is
evidence in the record to support the trial court’s finding, we cannot say its
determination as to the “typicality” requirement was manifestly erroneous.
Adequacy
The fourth prerequisite to class certification requires plaintiffs to establish
whether the representative parties will fairly and adequately protect the interests of
the class. La. C.C.P. art. 951(A)(4). The purpose of the adequacy requirement is
to protect the legal rights of the unnamed class members. Conrad, 13 So.3d at
1165. Class representatives can adequately represent absent class members, even
though claims by a particular class representative with regard to the exact damages
claimed may not be typical, as long as the class of damages asserted by each
representative is typical of that of the members of the class. Husband, 16 So.3d at21-CA-574 19
1230; Andry v. Murphy Oil, U.S.A., Inc., 97-0793 (La. App. 4 Cir. 4/1/98), 710
So.2d 1126, 1131, writ not considered, 98-1204 (La. 6/19/98), 719 So.2d 473,
writs denied, 98-1158 (La. 6/19/98), 720 So.2d 1213 and 98-1178 (La. 6/19/98),
720 So.2d 1214.
In Baker, supra, the Supreme Court held that the following four factors may
be relevant for determining adequacy of representation:
(1) the representative must be able to demonstrate that he
or she has suffered an actual vis-à-vis hypothetical
injury;
(2) the representatives should possess first-hand
knowledge or experience of the conduct at issue in the
litigation;
(3) the representative’s stake in the litigation—the
substantiality of his or her interest in winning the
lawsuit—should be significant enough, relative to that of
other class members to ensure that representative’s
conscientious participation in the litigation; and
(4) the representative should not have interests seriously
antagonistic to or in direct conflict with those of other
class members, whether because the representative is
subject to unique defenses or additional claims against
him or her, or where the representative is seeking special
or additional relief.
Baker, 167 So.3d at 543-44; Conrad, 13 So.3d at 1166.
Defendants argue the trial court erred in finding that plaintiffs met their
burden of proving adequacy because plaintiffs who paid an NOV for another
person or based on contractual obligations do not have any actual injury and cannot
adequately represent absent class members because these individuals did not
necessarily suffer any injury. According to defendants, some of the plaintiffs do
not have first-hand knowledge and experience with respect to a significant portion
of the claims and, consequently, cannot adequately represent absent class
members. Defendants further contend that plaintiffs’ total reliance on, and lack of
supervision of, their lead counsel shows that they cannot adequately represent
absent class members, and that their lack of conscientious participation and
21-CA-574 20
engagement in the litigation defeats adequacy of representation. Lastly, defendants
argue that there are conflicts of interests that defeat adequacy of representation.
For example, defendants contend that class counsel, Adam Cossey, is related to
one of the class representatives, Judith Triagle, which poses a clear potential
conflict with the class, and that class representative, Terrence Cooper, has a
divergent interest that does not align with those of the class because he testified
that the City’s administrative hearings are racially discriminatory. Additionally,
class representative, Delores Tortorich, has an individualized defense that has
altered the way that she pursues the litigation as a representative.
The trial court found defendants’ argument that none of the named plaintiffs
are adequate class representatives to be without merit. The trial court determined
that all of the named plaintiffs suffered an injury, possess first-hand knowledge of
the conduct at issue in the litigation, have a significant stake in the litigation, and
do not have any interests that are seriously antagonistic to or in direct conflict with
those of other class members. Additionally, the trial court found that Mr. Cossey’s
relationship to Ms. Traigle did not create a conflict of interest since Ms. Traigle is
his aunt-in-law. Furthermore, Ms. Traigle is only one of the eight proposed class
representatives and would not be able to make any settlement decisions without
concurrence from other class representatives. Lastly, the trial court ruled that it
failed to see how Mr. Cooper’s belief that the City’s administrative hearing and/or
hearing officers are racially discriminatory, or Ms. Tortorich’s defense at the
administrative hearing, would present a conflict of interest. Specifically, plaintiffs
have not made claims regarding these issues, therefore, they are irrelevant, and any
allegations regarding such are purely speculative. For these reasons, the trial court
found that the plaintiffs satisfied the “adequacy or representation” prerequisite.
Our review of the record indicates that all plaintiffs have an interest in the
outcome as they all received an NOV, satisfied payment of the NOV giving rise to
21-CA-574 21
this suit, and have testified that they are dedicated to the prosecution of this case.
We agree with the trial court’s determination of a lack of conflicting interests
between the representatives and the putative class members and/or class counsel.
In the absence of establishing true conflicting interests or antagonistic claims, we
find the trial court did not err or abuse its discretion in determining that the named
plaintiffs adequately represent the class.
Definability
The final prerequisite under La. C.C.P. art. 591(A) requires plaintiffs to
show the class is or may be defined objectively in terms of ascertainable criteria,
such that the court may determine the constituency of the class for purposes of the
conclusiveness of any judgment that may be rendered in the case. Husband, 16
So.3d at 1230. The purpose of the class definition requirement is to ensure that the
class is not amorphous, indeterminate, or vague, so that any potential class
members can readily determine if she or he is a member of the class. Id. The class
need not be so clearly defined that every class member can be identified at the
commencement of the action, as the trial court may modify the class as needed
when discovery or the trial adds relevant facts to the record. Duhe v. Texaco, Inc.,
99-2002 (La. App. 3 Cir. 2/7/01), 779 So.2d 1070, 1080, writ denied, 01-0637 (La.
4/27/01), 791 So.2d 637.
Defendants argue that plaintiffs’ stated purpose or class definition does not
define an ascertainable class because it will require individualized inquiries into
whether class members meet the criteria (i.e., did they pay a fine), or are ultimately
able to recover damages. Defendants argue this distinction is material to
ascertaining the viability of the class for the following circumstances: (a) where the
payor is not the registered owner or the NOV recipient, but paid the NOV in whole
or in part, neither the payor nor the NOV recipient fits within the plaintiffs’
proposed definition; (b) where the NOV recipient has reimbursed the payor in
21-CA-574 22
whole or in part, the NOV recipient may be a member of the class, but the payor is
not; (c) where the names of the NOV recipient and payor are not the same, further
inquiry would be necessary to determine whether they are truly different people or
if one name is an alias married name, maiden name, generational name, etc.; (d)
where the payor and NOV recipient are different people, further inquiry is
necessary to determine whether the payor was reimbursed in whole or in part or
paid the NOV as a gift. According to Redflex, “where standing cannot be
determined for all putative class members at the certification stage without
individualized evidence, certification is improper.” We disagree.
The “objectively defined” element only requires that there be an objective
standard by which the court can determine if a person falls within the class. Baker,
167 So.3d at 544. “[T]he mere fact that … class members must individually prove
their right to recover does not preclude class certification.” Oubre, 961 So.2d at
510; Bartlett, 759 So.2d at 756. Consequently, “the class need not be so clearly
defined that every class member can be identified at the commencement of the
action,” and “identification of every member of the potential class prior to
certification is not required.” Duhe, 779 So.2d at 1080; Smith v. Wal-Mart Stores,
Inc, 03-1582 (La. App. 3 Cir. 4/7/04), 870 So.2d 531, 537, writ denied, 04-1146
(La. 6/25/04), 876 So.2d 845.
Here, the trial court determined that the proposed class definition easily
identifies all eligible class members. The proposed class is limited to only those
parties who received an NOV and subsequently paid the civil penalty. Thus, to
qualify for the class and have standing, a party must have paid a fine in response to
receipt of an NOV. We find the proposed class is sufficiently defined in order to
give potential class members enough information to determine whether they are
included within the class and to enable potential class members to opt out of the
class. The possibility that some persons may fail to prevail on their individual
21-CA-574 23
claims will not defeat class membership. Conrad, 13 So.3d at 1165. There is
evidentiary support in the record for the trial court’s finding that the proposed class
representatives will adequately represent the interests of the class, and the record as
a whole does not indicate that this finding was manifestly erroneous.
Accordingly, based on the foregoing, we find plaintiffs have fulfilled the
statutory requirements of La. C.C.P. art. 591(A). We must now determine whether
at least one of the requirements of La. C.C.P. art. 591(B) has been met.
La. C.C.P. art. 591(B)
The second level of analysis for determining whether to certify a class action
is governed by La. C.C.P. art. 591(B). As stated, a court reaches this level of
analysis only if it finds that all the requirements of La. C.C.P. art. 591(A) have
been satisfied. Only one of the requirements of Section (B) must be met. See
Defraites, supra, 864 So.2d at 259. In this case, the trial court found that plaintiffs
satisfied La. C.C.P. art. 591(B)(3), which requires the court to find that questions
of law or fact common to members of the class predominate over any questions
affecting only individual members, and that the class action is superior to other
available methods of adjudicating the controversy. Here, after considering the
evidence submitted and the legal theories asserted in this case, the trial court
reasoned that common questions predominate over questions affecting individual
members. The trial court also determined that it would be impracticable for
individuals to pursue their claims without class certification because of the nominal
monetary relief for each individual, and that the class action procedure is superior
to other available methods for the fair and efficient adjudication of the controversy
given the nominal monetary relief sought.
Predominance
The legislature has specifically provided, emphasizing the commonality and
predominance requirements, that class “[c]ertification shall not be for the purpose
21-CA-574 24
of adjudicating claims or defenses dependent for their resolution on proof
individual to a member of the class.” La. C.C.P. art. 591(C); see also Ford, supra,703 So.2d at 549. Nevertheless, where certification is maintained, “the court shall
retain jurisdiction over claims or defenses dependent for their resolution on proof
individual to a member of the class.” La. C.C.P. art. 591(C). The latter provision
recognizes that “the mere fact that varying degrees of damages may result from the
same factual transaction and same legal relationship or that class members must
individually prove their right to recover does not preclude class certification.”
Bartlett, supra, 759 So.2d at 756 (citing McCastle, 456 So.2d at 620). The
paramount concern is whether the class action procedure “would achieve
economies of time, effort, and expense, and promote uniformity of decisions as to
persons similarly situated, without sacrificing procedural fairness or bringing about
other undesirable results.” Daniels, supra, 877 So.2d at 1015.
The Louisiana Supreme Court has explained that the predominance
requirement is more demanding than the commonality requirement, because it
“entails identifying the substantive issues that will control the outcome, assessing
which issues will predominate, and then determining whether the issues are
common to the class,” a process that ultimately “prevents the class from
degenerating into a series of individual trials.” See Dupree, supra, 51 So.3d at
683; Brooks, supra, 13 So.3d at 553. In short, the predominance requirement tests
whether the proposed class is sufficiently cohesive to warrant adjudication by
representation.
The overriding common issue that predominates in the instant case, and
upon which all plaintiffs’ claims are founded, is the constitutionality and legality of
the Program—whether the traffic Program violates prohibitory laws and/or the
Louisiana Constitution, and whether the resulting fines imposed are without
authority and, thus, constitute an ultra vires act. Once the factfinder resolves this
21-CA-574 25
common, substantive issue, which is based upon the same set of operative facts,
liability and causation for all class members is decided and will control—class-
wide—whether the litigation ceases or whether it proceeds to a determination of
the remedies sought, which are declaratory relief (regarding the Program’s
legality), injunctive relief (prohibiting continued operation of the Program), and
damages (return of civil penalties). If the court resolves this single, paramount
issue in favor of defendants, the litigation ceases. If the court resolves this
paramount issue in favor of plaintiffs, the remaining issues individual to class
members relate to any defenses defendants may assert and the calculation of
damages, which consist mainly of the amount of the fine, fees and penalties a NOV
recipient paid.8 Because a determination of this substantive issue will dispose of
all of plaintiffs’ claims one way or another, it predominates over any individual
issues that may be presented by the particular circumstances surrounding the claim
of any individual class member.
The gravamen of Redflex’s argument that individual issues predominate
making class certification improper is that its affirmative defenses of the voluntary
payment doctrine, waiver, and natural obligation doctrine, depend on individual
facts and circumstances. While affirmative defenses should be considered when
making class certification decisions, the potential complication is not enough to
decertify the class. Doe v. Jo Ellen Smith Medical Foundation, 12-966 (La. App. 4
Cir. 4/24/13), 115 So.3d 655, 663, writ denied, 13-1197 (La. 9/13/13), 120 So.3d
699; Mathews v. Hixon Bros., Inc., 02-124 (La. App. 3 Cir. 7/31/02), 831 So.2d
995, 1000, writs denied, 02-2286, 02-2305 (La. 12/13/02), 831 So.2d 984.
Moreover, while Redflex’s affirmative defenses may limit or bar a class member’s
ultimate recovery, they will not affect the initial determination of whether the
8
The same records and computer program Redflex uses to track the status of NOVs would likely
be the predicate for the calculation of damages to individual class members.
21-CA-574 26
Program violates prohibitory laws and/or Constitutional provisions and whether the
associated fines were illegally imposed. As such, while Redflex’s defenses apply
to the issue of plaintiff’s damages, they do not apply to defendant’s liability, and
do not make class certification inappropriate under La. C.C.P. art. 591(C), which
provides, in pertinent part, that where class certification is maintained, “the court
shall retain jurisdiction over … defenses dependent for their resolution on proof
individual to a member of the class.” [Emphasis supplied.] See Sutton Steel &
Supply, Inc. v. BellSouth Mobility, 03-1536 (La. App. 3 Cir. 6/9/04), 875 So.2d
1062, 1070.
Here, the trial court determined that Redflex’s potential defenses were not
enough to defeat class certification and that common issues predominate. Keeping
in mind La. C.C.P. art. 591(C), and considering La. C.C.P. art. 592(3)(d), which
states that “[i]n the process of class certification, or at any time thereafter before a
decision on the merits of the common issues, the court may alter, amend, or recall
its initial ruling on certification and may enlarge, restrict, or otherwise redefine the
constituency of the class or the issues to be maintained in the class action [,]” we
find no abuse of the trial court’s discretion in finding that common issues in this
matter predominate over individual issues.
Superiority
In addition to the predominance requirement, plaintiffs must also show that
the class action procedure is superior to other available methods for the fair and
efficient adjudication of plaintiffs’ claims. Dupree, 51 So.3d at. 699. The trial
court must evaluate, quantify, and weigh the relevant factors to determine to what
extent the class action would in each instance promote or detract from the goals of
effectuating substantive law, judicial efficiency, and individual fairness. Id. at
699-700. The basic goal or aim of any procedural device is “to implement the
substantive law, and to implement that law in a manner which will provide
21-CA-574 27
maximum fairness to all parties with a minimum expenditure of judicial effort.”
Id. at 700 (citing Stevens, supra, 309 So.2d at 151. If the superiority of a class
action is disputed, the trial court must inquire into the aspects of the case and
decide whether some other procedural device would better serve these goals.
Chiarella, supra, 921 So.2d at 120.
Here, the trial court determined that the class action procedure is superior to
other available methods given the modest monetary relief sought in relation to the
costs associated with bringing individual lawsuits. Redflex argues the trial court
erred in placing too much emphasis on the supposed impracticality of claimants
pursuing individual claims as that is only one factor in assessing superiority of a
class action to individual trials, which does not trump the requirement that
common issues predominate over individual issues. Redflex posits that the
difficulties of managing a class action that devolves into a series of mini trials to
address issues such as intent, knowledge, standing, or liability will always
outweigh the efficiencies of the class action mechanism. Redflex asserts that in
finding that the class action procedure is the superior method for adjudicating the
controversy, the trial court completely ignored and essentially deprived Redflex of
its affirmative defenses, which it contends are particularized to each plaintiff and
require individualized inquiries. Consequently, by certifying the class, Redflex
avers the trial court manifestly erred and abused its discretion by failing to fulfill
its obligations under La. C.C.P. art. 591(3). In light of our review of the record, we
disagree.
In the instant case, each plaintiff’s claim involves an allegation that
defendants violated prohibitory laws and/or Constitutional provisions and that civil
penalties were unlawfully imposed. There is no indication that consideration of the
substantive constitutionality issue, common to all plaintiffs, would require
individual trials or be unduly burdensome to the trial court. To the contrary, the
21-CA-574 28
record shows there is little proof on liability or causation necessary in this case
individual to each plaintiff. Their claims do not require highly individualized
inquiries into the cause of the damages. Moreover, trying all of the plaintiffs’
claims separately could result in non-uniformity in the application of the law on
these issues and in consideration of defendants’ anticipated defenses.
Additionally, taking into consideration the nominal value of plaintiffs’
individual claims, requiring them to proceed by individual trials could
disenfranchise large numbers of affected persons from the legal system. The
record evidence suggests that in each case herein, the costs associated with
bringing separate liability suits will clearly exceed the value of any individual
plaintiff’s claim, rendering individual actions financially impractical, if not
impossible. Considering the circumstances of this case, and that the ultimate goal
of the class action procedure is to efficiently and fairly ensure that the substantive
law underlying the plaintiffs’ claims is effectuated, we find the trial judge carefully
balanced considerations of procedural fairness with judicial efficiency in
concluding that a class action is the superior procedural device in this matter.
Considering the record before us, we find the trial court exercised its vast
discretion and did not err in concluding that a class action is superior to other
available methods for the fair and efficient adjudication of this matter.
MISCELLANEOUS ISSUES
“Rigorous Analysis”
In its brief, Gretna contends the trial judge failed to perform the requisite
“rigorous analysis” in certifying the class. We disagree.
The “rigorous analysis” a trial court must employ under Brooks, Dupree,
and McCastle, supra, in determining whether or not class certification is
appropriate in a particular case does not, as Gretna proposes, require that the trial
court conduct “a rigorous analysis involving the application of facts to the six (6)
21-CA-574 29
prohibitory laws and two (2) Constitutional provisions,” an analysis that
necessarily involves consideration of the merits of plaintiffs’ claims.9 In this
regard, Gretna erroneously avers the trial court applied an incorrect legal analysis,
and that class certification is improper because plaintiffs failed to carry their
burden of proving their claims were “viable,” by presenting sufficient evidence
that they will succeed on the merits.
Gretna’s arguments are misplaced and legally incorrect. The “rigorous
analysis” mandated by the Louisiana Supreme Court requires a trial court to
“evaluate, quantify, and weigh” each of the relevant factors set forth in La. C.C.P.
arts. 591(A) and 591(B)—numerosity, typicality, commonality, adequacy of
representation, definability, predominance and superiority—to determine if the
class action procedure would be judicially efficient and result in individual
fairness. As previously stated, whether plaintiffs’ claims have substantive merit or
whether plaintiffs can show that they will ultimately prevail on the merits are not
proper considerations in determining whether class certification is proper. See
Oubre, 961 So.2d at 509.
Failure to Consider All Relevant Evidence
Gretna also proposes the trial court abdicated its duty by adopting plaintiffs’
arguments carte blanche in lieu of considering the necessary factors, and
prematurely ruled from the bench prior to having and considering all of the
relevant evidence. Specifically, Gretna contends the trial court failed to consider
certain exhibits, including the complete errata sheet for the deposition of Redflex’s
9
Gretna erroneously asserts that when ruling on plaintiffs’ class certification motion, the trial court
made a determination as to a host of material issues of fact; i.e., that the Ordinance violates prohibitory
laws and Constitutional provisions. A review of the trial court’s judgment and exhaustive oral reasons for
judgment defies such a conclusion. To the contrary, the trial court made no ruling as to the merits or
viability of plaintiffs’ claims. Instead, the trial court determined that the issues raised are common to all
plaintiffs and are capable of class-wide resolution. Put simply, whether or not plaintiffs prevail on their
claims that the Ordinance violates prohibitory laws and/or Constitutional provisions will resolve class-
wide whether the litigation ceases or whether it proceeds to a determination of damages, declaratory relief
and/or injunctive relief.
21-CA-574 30
corporate representative, Kirk Best. According to Gretna, the trial court only
considered the particular pages provided by plaintiffs. Additionally, Gretna argues
the trial court did not have a complete set of Redflex’s “status change” records
(which consists of computer entries Redflex makes when the status of a NOV is
changed; i.e., found guilty, not guilty, failure to appear, etc.), but rather, had only
the example pages plaintiffs attached to their reply brief.
A review of the transcript from the class certification hearing, however,
evidences that these “complete” exhibits were received by the court at the outset of
the hearing and were made available prior to its ruling. Additionally, based on our
review, we do not believe the supplementation of the “complete” exhibits at issue
has any substantive bearing on the class certification issues, or otherwise would
have altered in any way the trial court’s analysis and ultimate conclusion that
plaintiffs bore their burden of proving class certification is warranted in this case.
Requirements of La. C.C.P. arts. 591(B)(1) or 591(B)(2)
Redflex argues the trial court erred and abused its discretion in concluding
that it was “not necessary for the Court to comment on (B)(1) and (B)(2)” after
erroneously finding that the requirements of La. C.C.P. art. 591(B)(3) had been
satisfied, instead “adopt[ing] the [conflicting] arguments that were made by
counsel.” Having already determined that the trial court did not err in finding that
plaintiffs satisfied their burden of establishing the predominance and superiority
requirements of La. C.C.P. art. 591(B)(3), we find the trial court was not obligated
to consider La. C.C.P. arts. 591(B)(1) or 591(B)(2). This assignment of error is
without merit.
Trial Court’s Ruling From the Bench
Redflex also contends it was error for the trial court to issue its ruling and
detailed oral reasons from the bench at the close of the certification hearing instead
21-CA-574 31
of taking the matter under advisement. We find that defendant’s contention lacks
merit.
The voluminous record in this case evidences its long five-year procedural
history and the fact that the parties had previously been before the trial court—as
well as this Court and the Louisiana Supreme Court—on numerous occasions, for
exceptions, motions for summary judgment, a motion for preliminary injunction,
and discovery matters. Additionally, the arguments of the parties were well-
briefed, and the trial court was admittedly well-prepared on the class certification
issue, in advance of the hearing. Under the circumstances, we find no error in the
trial court’s ruling from the bench.
Based on our review of the record in its totality, we find that it is clear that
the trial court correctly identified the controlling law and considered each of the
elements set forth in La. C.C.P. arts. 591(A) and 591(B) in relation to the legal
arguments made by both plaintiffs and defendants. We further find that, having
employed the requisite rigorous analysis, the trial court correctly determined that
plaintiffs carried their burden of proving that the class action procedure would
promote the goals of effectuating substantive law, judicial efficiency, and
individual fairness in this case.
CONCLUSION
The trial court found that plaintiffs satisfied all of the requirements of La.
C.C.P. art. 591(A), and the requirements of La. C.C.P. art. 591(B)(3). A trial court
has vast discretion regarding class certification. Baker, 167 So.3d at 538; Oubre,
961 So.2d at 508. We find no manifest error in the trial court’s findings and no
abuse of discretion in the trial court’s determination that this matter meets all of the
requirements of La. C.C.P. art. 591 for certification as a class action. Thus, the
trial court’s judgment granting plaintiffs’ motion for class certification is affirmed.
AFFIRMED
21-CA-574 32
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
AUGUST 5, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:
21-CA-574
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE JUNE B. DARENSBURG (DISTRICT JUDGE)
G. ADAM COSSEY (APPELLEE) CHRISTIAN W. HELMKE (APPELLANT) E. JOHN LITCHFIELD (APPELLANT)
LEONARD L. LEVENSON (APPELLANT) MICHAEL J. MARSIGLIA (APPELLANT) ALLEN C. MILLER, SR. (APPELLANT)
EMILY OLIVIER KESLER (APPELLANT) KENT A. LAMBERT (APPELLANT) KIM M. BOYLE (APPELLANT)
LEOPOLDO J. YANEZ (APPELLANT) NANCY S. DEGAN (APPELLANT)
MAILED
GORDON L. JAMES (APPELLEE) DANIEL P. QUIGLEY (APPELLANT) COLLEEN B. GANNON (APPELLANT)
MARGARET H. PRUITT (APPELLEE) STACEY F. GOTTLIEB (APPELLANT) DONNA R. BARRIOS (APPELLANT)
ROBERT M. BALDWIN (APPELLEE) 2425 EAST CAMELBACK ROAD ATTORNEYS AT LAW
ATTORNEYS AT LAW SUITE 1100 650 POYDRAS STREET
1800 HUDSON LANE PHEONIX, AZ 85016 SUITE 2750
SUITE 300 NEW ORLEANS, LA 70130
MONROE, LA 71201