Cardamon v. Dominion Courtyard Villas CA5

Filed 12/11/20 Cardamon v. Dominion Courtyard Villas CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
TERESE CARDAMON et al.,
F076760
Plaintiffs and Appellants,
(Super. Ct. No. 16CECG01918)
v.
DOMINION COURTYARD VILLAS et al., OPINION
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Fresno County. Rosemary T.
McGuire, Judge.
Gilmore, Magness Janisse and Tyler H. Lester; Law Offices of Mark Schallert and
Mark Schallert; Law Offices of David Douglas Doyle and David Douglas Doyle for
Plaintiffs and Appellants.
Sagaser, Watkins & Wieland, Howard Alan Sagaser, Ian B. Wieland, and Allie E.
Wieland for Defendants and Respondents.
-ooOoo-
Plaintiffs Terese and Nicholas Cardamon appeal from the Fresno County Superior
Court’s October 13, 2017 order denying their motion for class certification. For the
reasons set forth below, we reverse the order.
FACTUAL AND PROCEDURAL HISTORY
Between March 27, 2015, and March 25, 2016, plaintiffs rented an apartment at
Dominion Courtyard Villas (Dominion), one of nine residential complexes in or around
Fresno County operated and/or managed by defendants.1 Thereafter, defendants assessed
various charges against plaintiffs’ security deposit “to restore [the] apartment unit”
(boldface & capitalization omitted), such as $104.30 for “[c]leaning [m]aterial and
[l]abor,” $174.52 for “[p]ainting [l]abor and [m]aterial,” and $1,782.80 for “[p]ad &
[c]arpet [r]eplacement [p]et [d]amage,” inter alia. The costs were detailed in a “Resident
Request Form” (boldface & some capitalization omitted), a standardized three-page
document. Each charge included a 40 percent administrative fee.
In the operative complaint filed on July 28, 2016, plaintiffs alleged defendants
violated Business and Professions Code section 17200 et seq. and Civil Code section
1950.5 by imposing the 40 percent administrative fee. They sought to represent
themselves “and all other individuals who have rented, or were renting, apartment units
managed or owned by defendants, in which defendants applied [said] fee on costs being
deducted from security deposits when these individuals vacated the units . . . , at any time
during the four years preceding the filing of this action, and continuing while this action
is pending . . . .”
On May 15, 2017, plaintiffs filed a motion for class certification. The class was
defined as “ ‘[a]ll tenants who rented residential units through and/or from defendants
1 Defendants are Dominion; Scott Ellis Enterprises, LLC; Scott Ellis Enterprises,
L.P.; Barcelona Apartments; Casa Del Rio Apartments; Dartmouth Tower Apartments;
Oxford Park Apartments; Reef Apartments; Scottsmen Apartments; Scottsmen Too
Apartments; Villa Faria Apartments; Cedar Shepherd, L.P.; and Scott C. Ellis, LLC.
2.
from June 15, 2012, through the effective date determined by the [superior] [c]ourt, from
wh[om] a 40[ percent] “administrative fee” or “markup” was charged on costs deducted
from the security deposit . . . .’ ” Plaintiffs asserted the class was ascertainable via
defendants’ internal records, e.g., the Resident Request Form, and “clearly large enough
to warrant class action treatment” in view of certain deposition testimony. They also
asserted “the princip[al] questions of law and of fact are common to class members”
given “the uniformity of [defendants’] practices” and “[defendants’] use of standardized
documents” “showing the deductions from tenants[’] security deposits for ‘administrative
fees’ ”; their claims were “typical of those of [the] [c]lass” because they “had [the] 40[
percent] administrative fee assessed against costs deducted from their security deposits”;
and their attorney was “qualified to conduct class litigation.”
In support of their motion, plaintiffs provided the October 26, 2016 deposition
testimony of Scott Ellis, Jr., the general manager of Scott Ellis Enterprises, LLC. The
transcript read in part:
“Q. . . . [T]o your knowledge, has this 40 percent administrative
fee been charged for all the complexes . . . for at least the last five years?
“A. Yes.
“Q. And has there been any change in the policy of charging a 40
percent fee since this lawsuit was filed?
“A. No.
“Q. So to your knowledge, that practice continues up until today?
“A. Yes. [¶] . . . [¶]
“Q. . . . . Is it a common situation that when a tenant moves out
that part of the repair and cleanup of a unit is some type of painting?
“A. On a majority of move-outs, I would say so, yes. [¶] . . . [¶]
“Q. And I believe you said that [Dominion] has 280 units?
3.
“A. 287.
“Q. 287. [¶] . . . [¶] It appears that the number of move-outs does
not vary much from year to year. There is 150 in 2012, 164 in 2013, 165 in
2014, and 159 in 2015. Is that typical of what you would expect, about a
50 percent turnover rate a year?
“A. That’s typical. We like it when it’s less than that . . . .
[¶] . . . [¶]
“Q. We are showing you [the Resident Request Form]. . . .
Would the third page . . . normally be [given to residents]? . . . [¶] . . . [¶]
“A. [The third page] is . . . what we keep in-house . . . . The
residents just get . . . the first two pages. [¶] . . . [¶]
“Q. Now, you indicated that the resident as a general rule doesn’t
get [the third page] because that’s maintained internally, correct?
“A. Correct.”
In their opposition to plaintiffs’ class certification motion filed on May 31, 2017,
defendants insisted the class definition was “vague and ambiguous,” pointing out
“various tenants were completely unaffected by [their] policy as their security deposits
were fully returned.” (Fn. omitted.) They further argued plaintiffs “failed to prove the
existence of a uniform policy or practice that resulted in a violation of the law.”
(Boldface, underscoring & some capitalization omitted.) Defendants noted: (1) “each
apartment complex has unique and diverse practices including, but not limited to: the
cost to rent an apartment, the amount of security deposit required from each tenant at the
beginning of the lease period, whether a tenant will be refunded his or her full security
deposit at the time of move[-]out, how much of the security deposit the tenant will be
refunded, why the tenant is/is not being refunded, what repairs were necessary, and
whether the repairs were completed in-house or by a third party”; and (2) “[p]laintiffs
have not submitted declarations from any members of the [p]roposed [c]lass – such as their
neighbors in Dominion or any other tenants who leased apartments in Dominion or any of
the other complexes – to support their position that all tenants of the [p]roposed [c]lass
4.
suffered damages as a result of [the challenged] policy.” Furthermore, according to
defendants, plaintiffs’ failure to provide these declarations demonstrated their claims
were “not typical of the class.”
In support of their opposition, defendants submitted several declarations. In one
declaration, Ellis stated:
“3. Scott Ellis Enterprises, LLC is a property management
company . . . that manages eight of the apartment complexes in this lawsuit
. . . . [¶] . . . [¶]
“5. Cedar Shepherd [Limited Partnership] only manages . . .
Dominion . . . . [¶] . . . [¶]
“9. The 40[ percent] fee at issue in this case was not designed by
[d]efendants so that the entities would make a profit. It helps cover our
out[-]of[-]pocket costs incurred with the cleaning and repair of a vacated
apartment.”
In a separate declaration, Kathy Lynn, Scott Ellis Enterprises, LLC’s office
manager, stated:
“3. The nine complexes vary with respect to size and the manner
in which their general operations are conducted. For instance, Dominion is
substantially larger than any other complex (it has 287 units, which is more
than 100 units more than the second largest complex) and is structured very
differently when compared to the other complexes. Dominion is managed
by a team of two that act as managers, [three] assistant managers, [one]
maintenance supervisor, five maintenance employees, [five] leasing agents,
an activities director, and two cleaners.
“4. Dominion is the only complex of the nine that employs a
maintenance supervisor. Thus, whereas Dominion has its own in-house
employees who perform the work when an entire unit is painted, some of
the smaller complexes don’t employ any maintenance workers.
“5. Scottsmen Too [Apartments] has 182 units, 10 staff members,
is managed by a team of two that act as managers, an assistant manager by
another team of two, employs [two] leasing agents, [three] maintenance
workers and one employee whose job is to clean the laundry room and
recreational area full-time.
5.
“6. Scottsmen [Apartments] has 126 units, one team that manages
the complex and another team that assistant manages. It has [two] leasing
agents, and [three] maintenance workers.
“7. Barcelona [Apartments] only has 38 units and is managed by
a team of two. These are the only two employees . . . . Because Barcelona
[Apartments] is not large enough to warrant employment of its own
maintenance worker, the management team of one couple completes as
much repair work as feasible. The remaining repair work related to move[-
]outs and repairing units is outsourced to various third[-]party vendors.
Such is the case at each complex that does not employ any maintenance
workers.
“8. Casa Del Rio [Apartments] only has 24 units and is managed
by one part-time manager.
“9. Dartmouth [Tower Apartments] has 82 units and is managed
by a team of two. It also employs a team of two assistant managers. It
does not employ any maintenance workers.
“10. Oxford [Park Apartments] has 52 units and employs one
manager and one maintenance worker.
“11. Reef [Apartments] has 58 units and is managed by a team of
two. It does not employ any maintenance workers.
“12. Villa Faria [Apartments] has 65 units and is managed by a
team of two. It does not employ any maintenance workers. It has one part-
time leasing agent who works approximately two days per week. [¶] . . . [¶]
“14. Each complex has a different individual who oversees the
move-out process. For instance, the complex assistant manager meets with
the tenant to perform a walk[-]through inspection of the unit. Information
is then provided to the manager, who informs the maintenance workers (or
outside vendors) of the materials that need to be purchased/used to
complete the necessary repairs. The manager compiles the costs and
prepares a refund request, which is then sent to an area supervisor for
review and approval.
“15. During the relevant time period of [p]laintiffs’ [c]omplaint,
there were five area supervisors in charge of the nine complexes. One area
supervisor oversaw Dominion; one oversaw Barcelona [Apartments] and
Scottsmen [Apartments]; one oversaw Oxford [Park Apartments] and Villa
Faria [Apartments]; one oversaw Casa Del Rio [Apartments] and
6.
Scottsmen Too [Apartments]; and the fifth area supervisor oversaw
Dartmouth [Tower Apartments] and Reef [Apartments].
“16. Whether and how much of a tenant’s security deposit will be
refunded is determined by the manager at each complex based on the time,
material and costs and reviewed/approved by the area supervisor.
“17. Each complex has a different person in charge of handling
move[-]outs and security deposits, a different maintenance staff that
performs the necessary repairs to each unit after a tenant moves out, [and]
different volumes of in-house maintenance versus maintenance that must be
outsourced, among other things.”
In another declaration, Don Ernst, Cedar Shepherd Limited Partnership’s
accounting/human resources manager, stated:
“3. In 2012, Dominion incurred $215,158.16 to restore its units
after tenants moved out. Dominion only withheld and applied $68,142.08
from tenants’ security deposits. Thus, without the 40[ percent] markup,
Dominion would have been in the negative $147,016.08 restoring units.
Even with the 40[ percent] markup (.40 x $68,142.08 = $27,256.83),
Dominion lost $119,759.25.
“4. In 2013, Dominion incurred $237,645.96 to restore its units.
However, Dominion only withheld and applied $121,327.63 from tenants’
security deposits. Thus, without the 40[ percent] markup, Dominion would
have been in the negative $116,318.33 restoring units. Even with the 40[
percent] markup (.40 x $121,327.63 = $48,531.05), Dominion lost
$67,787.28.
“5. In 2014, Dominion incurred $284,992.83 to restore its units.
However, Dominion only withheld and applied $119,093.19 from tenants’
security deposits. Thus, without the 40[ percent] markup, Dominion would
have been in the negative $165,899.64 restoring units. Even with the 40[
percent] markup (.40 x $119,093.19 = $47,637.27), Dominion lost
$118,262.37.
“6. In 2015, Dominion incurred $283,828.49 to restore its units.
However, Dominion only withheld and applied $95,241.68 from tenants’
security deposits. Thus, without the 40[ percent] markup, Dominion would
have been in the negative $188,586.81 restoring units. Even with the 40[
percent] markup (.40 x $95,241.68= $38,096.67), Dominion lost
$150,490.14.
7.
“7. Only fees pertaining to the maintenance and repair of the
units include the 40[ percent] fee. The fee is included to help cover the cost
of supplies, scheduling, contacting third[-]party vendors, coordinating and
performing the labor related to the repairs to a unit, as well as time spent
overseeing the work of third[-]party vendors and other overhead costs
associated with cleaning and repair of the vacated unit such as the
percentage of employee benefits and wage burden attributed to the repair or
cleaning of the unit.”
In a tentative ruling issued on September 26, 2017, the superior court indicated it
would deny plaintiffs’ class certification motion. The ruling read:
“I. Ascertainable Class
“Ascertainability is required in order to give notice to putative class
members as to whom the judgment in the action will be res judicata.
[Citation.] ‘Whether a class is ascertainable is determined by examining
(1) the class definition, (2) the size of the class, and (3) the means available
for identifying class members.’ [Citation.][2]
“A. Class Definition
“Ascertainability can best be achieved ‘by defining the class in terms
of objective characteristics and common transactional facts,’ rather than
defining it in such a way that proposed class members must establish the
merits of their case in order to be considered part of the class. [Citation.]
Class certification can be denied for an unascertainable class when the
proposed definition is overbroad and the plaintiff offers no means by which
only those class members who have claims can be identified from those
who should not be included in the class. [Citation.]
“Here, plaintiffs[’] . . . class definition is as follows: [¶] . . . [¶] All
tenants who rented residential units through and/or from defendants from
June 15, 2012, through the effective date determined by the [c]ourt, from
2 In Noel v. Thrifty Payless, Inc. (2019) 7 Cal.5th 955 (Noel), our Supreme Court
identified this three-factor approach as one of two ascertainability tests utilized by state
appellate courts since 1967. (Id. at p. 974.) The high court held “that the objectives of
[the ascertainability] requirement are best achieved by regarding a class as ascertainable
when it is defined ‘in terms of objective characteristics and common transactional facts’
that make ‘the ultimate identification of class members possible when that identification
becomes necessary’ ” (id. at p. 980) and “disapprove[d] of” the three-factor approach to
the extent it “could be read to demand a more exacting inquiry” (id. at p. 986, fn. 15).
8.
wh[om] a 40[ percent] ‘administrative fee’ or ‘markup’ was charged on
costs deducted from the security deposit.
“[Defendants] contend[] that the class is ambiguous because various
tenants were unaffected by the policy as their security deposits were fully
returned. [¶] However, any tenants not charged the 40[ percent]
administrative fee by definition would not be in the class. Plaintiffs are
clearly contesting the 40[ percent] fee[] as to all items for which the fee was
applied. [Citation.] The definition is certain.
“B. Size of the Class
“The party seeking class certification must prove approximate size
of proposed class. (Bauman v. Islay Investments (1975) 45 Cal.App.3d
797, 801 (Bauman).)
“Plaintiffs only provide very limited information about the size of
the class. They point out that defendants charged the administrative fee for
nine complexes for at least the last five years, and this practice is still . . .
utilized today. From 2012 to 2015, 638 tenants moved out of one of the
complexes named in this action. [Citation.] But plaintiffs provide no
information as to how many of those were charged the administrative fee.
Plaintiffs merely leave the court to guess at the size of the class.
“C. Identifying Class Members
“To determine the identity of potential class members, the court will
look to whether there are any objective criteria to describe them and
whether they can be found without unreasonable expense or effort through
business or official records. [Citation.][3]
“As plaintiffs point out, putative class members can be easily
identified through defendants’ records. Little more would be required than
the three[-]page security deposit forms, which will reveal whether the
3 In Noel, supra, 7 Cal.5th 955, the Supreme Court acknowledged some appellate
courts employing the three-factor approach “have . . . required a class plaintiff to make a
specific factual or evidentiary showing in order to show an ascertainable class” (id. at
p. 975, italics added), namely, to “demonstrate that individual members of the proposed
class can ‘be readily identified without unreasonable expense or time’ ” (ibid.) “ ‘ “ ‘by
reference to official records’ ” ’ ” (id. at p. 966; accord, id. at pp. 974, 986, fn. 15). The
high court emphasized “this is one way but not the only way to show an ascertainable
class” (id. at p. 986, fn. 15) and “disapprove[d] of this standard insofar as it could be
perceived as exclusive” (ibid.).
9.
administrative charge was withheld from a tenant’s security deposit.
Defendants do not argue that [this] is an issue.
“II. Community of Interest
“A. Predomina[nt] Common Questions of Law or Fact
“The plaintiffs’ ‘burden of moving for class certification . . . is not
merely to show that some common issues exist, but, rather, to place
substantial evidence in the record that common issues predominate.’
[Citation.] And whether such substantial evidence exists involves analysis
of whether the proponent’s ‘theory of recovery’ is likely to prove
compatible with class treatment. [Citation.] ‘A trial court ruling on a
certification motion determines “whether . . . the issues which may be
jointly tried, when compared with those requiring separate adjudication, are
so numerous or substantial that the maintenance of a class action would be
advantageous to the judicial process and to the litigants.” ’ [Citation.] ‘It is
well established that the necessity for an individual determination of
damages does not weigh against class certification. The community of
interest requirement recognizes that “ultimately each class member will be
required in some manner to establish his individual damages . . . .” ’
[Citation.] [¶] . . . [¶]
“ ‘[E]vidence of a uniform policy or practice, not just an allegation,
is necessary in order to certify the class.’ [Citation.] [The California
Supreme Court] held that where there was common proof of a company
policy or practice, a class action could proceed. It did not matter whether
that policy was legal or unlawful. [Citations.]
“. . . Ellis testified at his deposition that the 40[ percent]
administrative fee has been charged for all the complexes for at least the
past five years, and the practice continues today. [Citation.] Ellis states in
his declaration in opposition to the motion for class certification that at the
termination of the tenancy, defendants deduct from the security deposit
actual costs associated with repairing damage caused by the tenant and to
clean the premises. [Citation.] ‘Each of these costs include [the] 40[
percent] fee . . .’ [Citation.]4
4 The superior court actually cited Ellis’s declaration in support of defendants’
summary judgment motion, which was filed on the same day as his declaration in
opposition to plaintiffs’ class certification motion. The court ultimately denied the
summary judgment motion.
10.
“With Ellis’[s] admissions, plaintiffs present evidence of a uniform
policy or practice applicable to all persons in the proposed class. Based on
the uniformity of defendants’ practices and use of standardized documents,
such as the three[-]page [Resident Request F]orm and/or other records
showing the deductions from tenants’ security deposits for administrative
fees, the princip[al] questions of law and of fact are common to class
members, and clearly predominate over any individual questions.
“However, defendants correctly point out that plaintiffs have not
submitted declarations from any members of the proposed class – such as
their neighbors in Dominion or any other tenants who leased apartments in
Dominion or any of the other complexes – to support their position that
others suffered damages as a result of defendants’ policy.
“In Bauman, supra, 45 Cal.App.3d 797, a purported class action to
recover security deposits retained by a landlord, the plaintiff sought to
represent past and present tenants of 22 apartment buildings owned by
defendants who entered into written agreements with defendants and paid
non-refundable cleaning fees. Plaintiff alleged that defendants refused to
refund portions of the cleaning fees not used to clean the apartments of
tenants who terminated their tenancies.
“Certification was properly denied where . . . [¶] [plaintiff] offered
no proof that anyone other than herself had rented a furnished apartment
from Islay, signed the identical rental agreement, paid a cleaning deposit,
moved out, and failed to receive a proper refund. She made no showing
that anyone other than herself was dissatisfied with the cleaning
arrangements for the vacation of a furnished apartment. . . . [N]or did she
offer proof that anyone except herself and her counsel desired to prosecute
the lawsuit or stood to profit from it. Without proof of the existence and
composition of the class, the court could neither determine its jurisdiction
over unidentified class members, nor the notice it would be proper to give
them. (Bauman, supra, 45 Cal.App.3d at p. 801.)
“The plaintiff failed to show that other members of the class wanted
to join her class action, or what the claims of others might be. The
appellate court noted[:] [¶] [‘]While it might have been possible for the
trial court to assume with [plaintiff] that other tenants paid similar cleaning
fees and moved out with refunds owing to them, assumptions, inferences,
and speculations are no substitute for evidence. We think the trial court
correctly required [plaintiff] to prove that her action qualified as a class
action, and when she failed to do this at a hearing held for that express
purpose the court properly dismissed her suit.’ (Bauman, supra, 45
Cal.App.3d at pp. 802-803.)
11.
“Like in Bauman, plaintiffs put forth no direct evidence of another
tenant charged the administrative fee. That there were others would be a
very easy inference to make, but an inference nonetheless. . . .
“Due to plaintiffs’ failure to submit evidence of typicality, as well as
the size of the class, the motion must be denied. Plaintiffs have not met
their burden.
“Defendants continue by pointing out that each apartment complex
has unique and diverse practices including, but not limited to: the cost to
rent an apartment, the period, [w]hether a tenant will be refunded his or her
full security deposit at the time of move[-]out, how much of the security
deposit the tenant will be refunded, why the tenant is/is not being refunded,
[w]hat repairs were necessary, and [w]hether the repairs were completed in-
house or by a third party. Also, each complex has a different person in
charge of handling move[-]outs and security deposits, a different
maintenance staff that performs the necessary repairs to each unit after a
tenant moves out, different volumes of in-house maintenance versus
maintenance that must be outsourced, among other things. [Citation.]
Thus, defendants contend, whether a tenant is entitled to a potential
recovery here is dependent on facts peculiar to his or her case and a class
action of [p]laintiffs’ claims is not manageable.
“However, these facts are not relevant to any individual class
member’s recovery. All that would need to be determined in this action is
whether the administrative fee violates Civil Code section 1950.5
(liability), and with respect to each class member, whether the fee was
withheld from their security deposit, and how much. ‘[T]he necessity for
class members to prove their own damages does not mean individual fact
questions predominate.’ [Citation.] There is a very minimal degree of
individual proof needed in this case – the amount of the administrative fee
withheld.
“i. Representatives with Claims and Defenses Typical of
the Class
“. . . . ‘[I]t has never been the law in California that the class
representative must have identical interests with the class members . . . [.]
The focus of the typicality requirement entails inquiry as to whether the
plaintiff’s individual circumstances are markedly different or whether the
legal theory upon which the claims are based differ from that upon which
the claims of the other class members will be based.’ [Citation.]
12.
“As discussed above, plaintiffs fail to present direct evidence of
similar damages suffered by other tenants.
“ii. Representatives who Adequately Represent the Class
“The class representative must be able to represent the class
adequately. [Citation.] . . .
“Based on the information presented, and lack of any opposition on
this consideration, the court has no concerns about the adequacy of the
representation either by plaintiffs or class counsel.”5
Following a September 28, 2017 hearing, the court adopted its tentative ruling as
its final order on October 13, 2017.
DISCUSSION
I. Standard of review
“In reviewing a class certification order, our inquiry is ‘narrowly circumscribed.’
[Citation.] ‘ “The decision to certify a class rests squarely within the discretion of the
trial court, and we afford that decision great deference on appeal, reversing only for a
manifest abuse of discretion: ‘Because trial courts are ideally situated to evaluate the
efficiencies and practicalities of permitting group action, they are afforded great
discretion in granting or denying certification.’ [Citation.] A certification order
generally will not be disturbed unless (1) it is unsupported by substantial evidence, (2) it
rests on improper criteria, or (3) it rests on erroneous legal assumptions.” ’ [Citation.]
‘Under this standard, an order based upon improper criteria or incorrect assumptions calls
for reversal “ ‘even though there may be substantial evidence to support the court’s
order.’ ” ’ [Citations.]” (Noel, supra, 7 Cal.5th at pp. 967-968.)
“Despite this grant of discretion, appellate review of orders denying class
certification differs from ordinary appellate review. Under ordinary appellate review, we
5 We formatted the citations in the quoted text to conform to the general rules of
citation outlined by the California Style Manual. (See generally Cal. Style Manual (4th
ed. 2000).) No substantive changes were made.
13.
do not address the trial court’s reasoning and consider only whether the result was
correct. [Citation.] But when denying class certification, the trial court must state its
reasons, and we must review these reasons for correctness. [Citation.] We may only
consider the reasons stated by the trial court and must ignore any unexpressed reason that
might support the ruling. [Citations.]” (Knapp v. AT&T Wireless Services, Inc. (2011)
195 Cal.App.4th 932, 939.) “[I]f they are erroneous, we must reverse, whether or not
other reasons not relied upon might have supported the ruling.” (Ayala v. Antelope
Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 530.)
II. Analysis
“Originally creatures of equity, class actions have been statutorily embraced by the
Legislature whenever ‘the question [in a case] is one of a common or general interest, of
many persons, or when the parties are numerous, and it is impracticable to bring them all
before the court . . . .’ ” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th
1004, 1021, quoting Code Civ. Proc., § 382.) “Drawing on the language of Code of Civil
Procedure section 382 and federal precedent, [the California Supreme Court] ha[s]
articulated clear requirements for the certification of a class. The party advocating class
treatment must demonstrate the existence of an ascertainable and sufficiently numerous
class, a well-defined community of interest, and substantial benefits from certification
that render proceeding as a class superior to the alternatives. [Citations.] ‘In turn, the
“community of interest requirement embodies three factors: (1) predominant common
questions of law or fact; (2) class representatives with claims or defenses typical of the
class; and (3) class representatives who can adequately represent the class.” ’ [Citation.]”
(Brinker Restaurant Corp. v. Superior Court, supra, 53 Cal.4th at p. 1021.) State and
federal requirements for class certification are analogous. (See Fed. Rules Civ. Proc.,
rule 23(a), 28 U.S.C.; In re Tobacco II Cases (2009) 46 Cal.4th 298, 318.) Moreover, in
the absence of relevant state precedents, California courts examine federal law for
guidance on issues of class action procedure. (In re Tobacco II Cases, supra, at p. 318;
14.
Green v. Obledo (1981) 29 Cal.3d 126, 145-146; Hendershot v. Ready to Roll
Transportation, Inc. (2014) 228 Cal.App.4th 1213, 1222, fn. 5 (Hendershot).)
In the instant case, the superior court denied plaintiffs’ class certification motion
on the grounds they failed to establish (1) size of the class; and (2) typicality. For the
reasons set forth below, we reject the court’s rationale.
a. Numerosity
“To be certified, a class must be ‘numerous’ in size that ‘it is impracticable to
bring them all before the court . . . .’ ” (Hendershot, supra, 228 Cal.App.4th at p. 1222,
quoting Code Civ. Proc., § 382; see Fed. Rules Civ. Proc., rule 23(a)(1), 28 U.S.C.
[federal statute similarly requires class “[to be] so numerous that joinder of all members
is impracticable”].) “[T]here is no set number required as a matter of law for the
maintenance of a class action.” (Hebbard v. Colgrove (1972) 28 Cal.App.3d 1017, 1030;
accord, Hendershot, supra, at p. 1222; see Campbell v. Pricewaterhousecoopers
(E.D.Cal. 2008) 253 F.R.D. 586, 594 [“While there is no set number of members required
[under federal law], courts have generally found classes numbering in the hundreds to be
sufficient to satisfy the numerosity requirement.”]; Californians for Disability Rights,
Inc. v. California Department of Transportation (N.D.Cal. 2008) 249 F.R.D. 334, 347
[“[Federal] precedent suggests that 20-40 class members is the ‘grey area’ for numerosity
. . . .”]; Perez-Funez v. District Director, Immigration & Naturalization Service (C.D.Cal.
1984) 611 F.Supp. 990, 995 [“Classes consisting of 25 members have been held large
enough to justify certification.”].) “ ‘The ultimate issue in evaluating this factor is
whether the class is too large to make joinder practicable . . . .’ ” (Hendershot, supra, at
p. 1222, fn. omitted, quoting Celano v. Marriott Internat., Inc. (N.D.Cal. 2007) 242
F.R.D. 544, 549.) “ ‘ “[I]mpracticability” does not mean “impossibility,” but only the
difficulty or inconvenience of joining all members of the class.’ [Citation.]”
(Hendershot, supra, at p. 1222, quoting Harris v. Palm Springs Alpine Estates, Inc. (9th
Cir. 1964) 329 F.2d 909, 913-914.)
15.
Federal cases make clear the numerosity requirement is satisfied even if the exact
size of the class is unknown so long as general knowledge and common sense indicate
this class is large. (See, e.g., Gomez v. J. Jacobo Farm Labor Contractor, Inc. (E.D.Cal.
2019) 334 F.R.D. 234, 251; Sullivan v. Kelly Services, Inc. (N.D.Cal. 2010) 268 F.R.D.
356, 362; Doe v. Los Angeles Unified School Dist. (C.D.Cal 1999) 48 F.Supp.2d 1233,
1239; Perez-Funez v. District Director, Immigration & Naturalization Service, supra,
611 F.Supp. at p. 995; Orantes-Hernandez v. Smith (C.D.Cal. 1982) 541 F.Supp. 351,
371, disapproved on other grounds by Jean v. Nelson (11th Cir. 1984) 727 F.2d 957.) On
the other hand, “mere speculation of the number of class members involved does not
satisfy the requirement . . . .” (In re LDK Solar Securities Litigation (N.D.Cal. 2009) 255
F.R.D. 519, 525.)
Here, the record shows defendants have imposed the 40 percent administrative fee
at Dominion and the eight other residential complexes since at least 2011. Between 2012
and 2015, 638 tenants moved out of Dominion and $403,804.58 was deducted from their
security deposits. That amount included administrative fees adding up to $161,521.82, or
approximately $250 per outgoing tenant. No figures were given for the other eight
complexes, but the record shows these complexes contain a total of 627 units versus
Dominion’s 287 units. According to Ellis, a “50 percent turnover rate a year” is “typical”
and painting occurs for the “majority of move-outs.”
In its ruling, the superior court lamented that it had to “guess at the size of the
class.” “The fact that the number of persons in the class cannot be exactly determined
does not preclude class certification, [citation]; a court may draw a reasonable inference
of class size from the facts before it. [Citation.]” (Lynch v. Rank (N.D.Cal. 1984) 604
F.Supp. 30, 36; see Evid. Code, § 600, subd. (b) [“An inference is a deduction of fact that
may logically and reasonably be drawn from another fact or group of facts found or
otherwise established in the action.”].) Based on the information provided by defendants,
putative class members who vacated a Dominion apartment between 2012 and 2015
16.
alone would number in the hundreds. This sum can only increase when the move-outs at
the other complexes over the relevant period are taken into account. General knowledge
and common sense indicate the class is too large to make joinder practicable. Hence,
“ ‘[t]he prerequisite of numerosity is discharged . . . .” (Sullivan v. Kelly Services, Inc.,
supra, 268 F.R.D. at p. 362.) The court’s conclusion to the contrary rested on improper
criteria and/or erroneous legal assumptions.6
b. Typicality
As the superior court recognized in its ruling, “typicality entails an inquiry
whether ‘the named plaintiff’s individual circumstances are markedly different or . . . the
legal theory upon which the claims are based differs from that upon which the claims of
other class members will perforce be based.’ [Citation.]” (Eisenberg v. Gagnon (3d Cir.
1985) 766 F.2d 770, 786.)7 The requirement “serve[s] as [a] guidepost[] for determining
. . . whether the named plaintiff’s claim and the class claims are so interrelated that the
interests of the class members will be fairly and adequately protected in their absence.”
(Wal-Mart Stores, Inc. v. Dukes (2011) 564 U.S. 338, 349, fn. 5.) “ ‘The test of typicality
“is whether other members have the same or similar injury, whether the action is based
on conduct which is not unique to the named plaintiffs, and whether other class members
have been injured by the same course of conduct.” [Citation.]’ ” (Seastrom v. Neways,
6 We point out the court emphasized “plaintiffs provide[d] no information as to how
many of those [former Dominion tenants] were charged the administrative fee” (italics
added) but also stated “putative class members can be easily identified through
defendants’ records” and “[l]ittle more would be required than the three[-]page [Resident
Request Form], which will reveal whether the administrative charge was withheld from a
tenant’s security deposit.” “Plaintiff’s lack of knowledge as to the exact number of
affected persons is not a bar to maintaining a class action, when defendants have the
means to identify those persons at will.” (Ventura v. New York City Health & Hospitals
Corp. (S.D.N.Y. 1989) 125 F.R.D. 595, 599.)
7 In its ruling, the court quoted Classen v. Weller (1983) 145 Cal.App.3d 27, 46.
However, that case does not contain this passage.
17.
Inc. (2007) 149 Cal.App.4th 1496, 1502, quoting Hanon v. Dataproducts Corp. (9th Cir.
1992) 976 F.2d 497, 508.) “[R]epresentative claims are ‘typical’ if they are reasonably
co-extensive with those of absent class members; they need not be substantially
identical.” (Hanlon v. Chrysler Corp. (9th Cir. 1998) 150 F.3d 1011, 1020.)
In Caro v. Procter & Gamble Co. (1993) 18 Cal.App.4th 644, the plaintiff filed a
consumer class action complaint against defendants, alleging they falsely advertised that
a particular brand of orange juice was “fresh.” (Id. at pp. 651-652.) The superior court
denied the plaintiff’s class certification motion on the grounds of typicality, inter alia.
(Id. at p. 653.) The appellate court affirmed the order. (Id. at p. 671.) It explained:
“Substantial evidence supports the court’s finding [the plaintiff] did
not believe the . . . orange juice he bought was ‘fresh.’ According to [the
plaintiff]’s complaint, the class members were buyers of [the] orange juice
who were deceived by the product’s labeling and advertising into believing
they were buying ‘fresh’ orange juice. In seeking class certification, [the
plaintiff] defined ‘fresh’ orange juice as ‘simply the juice squeezed from
oranges; it is not altered, heated or frozen.’ However, at deposition [the
plaintiff] testified that when buying [the] orange juice he did not expect ‘the
orange juice that a store squeezes and puts into its own container and sells
as fresh squeezed orange juice.’ Instead, [the plaintiff] thought it was
‘premium’ orange juice. [The plaintiff] defined ‘premium’ orange juice as
involving characteristics of pasteurized orange juice and fresh orange juice.
[The plaintiff] understood pasteurization as ‘the process of heating
something to get rid of bacteria.’ Thus, [the plaintiff]’s definition of
‘premium’ juice to include juice heated during pasteurization was broader
than his definition of ‘fresh’ juice which excluded juice that was heated.
Although [the plaintiff] alleged the class was deceived into believing
defendants’ product was ‘fresh,’ the evidence indicated he himself believed
the juice was simply ‘premium.’ Because [the plaintiff] did not claim to be
misled in the manner the class was allegedly deceived, the court could not
‘decide the issue of the rights of such individuals that might possibly exist.’
[Citation.] In sum, on this record the superior court reasonably concluded
[the plaintiff]’s claims involving ‘premium’ juice were not typical of the
class claims involving ‘fresh’ juice.” (Caro v. Procter & Gamble Co.,
supra, 18 Cal.App.4th at pp. 664-665, fns. omitted.)
18.
Here, the class was defined as “ ‘[a]ll tenants who rented residential units through
and/or from defendants’ ” “ ‘from wh[om] a 40[ percent] “administrative fee” or
“markup” was charged on costs deducted from the security deposit . . . .’ ” The record
shows plaintiffs were former Dominion tenants; various charges were assessed against
their security deposit; and said charges included the 40 percent administrative fee. In its
ruling, the superior court focused on the lack of declarations from putative class members
regarding similar damages. However, the record demonstrated the administrative fee was
not imposed on plaintiffs alone: Ellis’s deposition testimony and defendants’
declarations revealed this was a uniform policy or practice applied to all putative class
members. The court’s apparent belief that only declarations from putative class members
could satisfy the typicality requirement rested on improper criteria and/or erroneous legal
assumptions.
c. Bauman
The superior court’s ruling relied heavily on Bauman v. Islay Investments (1975)
45 Cal.App.3d 797 (Bauman). In that case, the plaintiff had rented an apartment from the
defendants and paid a $40 cleaning deposit pursuant to the lease agreement. (Id. at
p. 800.) After she terminated her tenancy in less than a month, she did not receive a
refund of that deposit. (Ibid.) Thereafter, the plaintiff filed a class action lawsuit, in
which she sought to represent past and present tenants of 22 apartment buildings owned
by the defendants who “entered written agreements with [the defendants] and paid
‘nonrefundable cleaning [fees].’ ” (Id. at p. 799.) Plaintiff alleged the defendants
violated Civil Code section 1950.5 by “refus[ing] to refund those portions of the cleaning
fees not used to clean the apartments of tenants who terminated their tenancies . . . .”
(Bauman, supra, 45 Cal.App.3d at p. 799.)
The superior court ordered a hearing on class issues, including “the constitution,
approximate numbers, and geographic location of the class,” “the existence of common
questions of law and fact affecting class members,” “membership of [the] plaintiff in the
19.
class,” and “[the] plaintiff’s ability to properly represent the class.” (Bauman, supra, 45
Cal.App.3d at p. 800.) At said hearing, the plaintiff “rested her entire case on the
declarations of herself and her attorney.” (Ibid.) In particular, the plaintiff’s counsel
asserted the defendants’ buildings contained 1,471 units and estimated the class was
comprised of 2,900 members. (Ibid.) That approximation was based on “assumptions
that all 1,471 apartment units had tenants, each unit had two different tenants during the
period covered by the action, each tenant paid a cleaning deposit, and each tenant signed
the same rental agreement as [the plaintiff].” (Id. at pp. 800-801.) The defendants
“denied these assumptions in its answer” and the plaintiff “produced no competent
evidence to support any of these assumptions.” (Id. at p. 801.) In addition, the
defendants presented declarations “assert[ing] that liability . . . would be an issue with
each member of the class, that some members waived their rights under Civil Code
section 1950.5, that others were estopped to assert those rights, that [the defendants] had
offsetting claims for unpaid rent against other members of the class, that each terminated
tenancy presented a different factual problem.” (Id. at p. 802.) The court concluded the
plaintiff “had failed to establish the propriety of her action as a class action and dismissed
her suit.” (Id. at p. 801.)
The appellate court affirmed the judgment. (Bauman, supra, 45 Cal.App.3d at
p. 803.) It pointed out:
“[The plaintiff] did not prove the existence, membership, and
approximate size of her class, a prerequisite to a finding of the
impracticality of bringing all members of the class before the court.
[Citation.] She offered no proof that anyone other than herself had rented a
furnished apartment from [the defendants], signed the identical rental
agreement, paid a cleaning deposit, moved out, and failed to receive a
proper refund. . . . At one point, [the plaintiff] told the trial court that ‘the
exact number of class members is within the knowledge of [d]efendants
and can be readily ascertained by their review of their own books and
records.’ Yet despite ample opportunity for discovery on class issues, she
20.
failed to produce that ‘readily ascertainable’ information for the court.[8]
[¶] . . . [¶]
“[The] plaintiff . . . failed to prove that her claim was typical of
others in the class or that the issues in her case were similar to those in
other cases. . . . [The defendants] asserted that each member’s right to
recover was dependent on facts peculiar to his case, a state of affairs
contraindicative of class action. [Citations.] [The defendants’] assertions
went uncontroverted. [The plaintiff] interviewed no prospective members
of the class, deposed no witnesses, made no requests for admissions,
presented no interrogatories, conducted no discovery, called no witnesses to
testify, and examined no records. . . .” (Bauman, supra, 45 Cal.App.3d at
pp. 801-802.)9
Here, by contrast, the record contains competent evidence supporting findings of
numerosity and typicality, e.g., Ellis’s deposition testimony and defendants’ declarations.
Also, unlike the defendants in Bauman, defendants in the instant case asserted that
damages would be an issue with each member of the proposed class, which—as the court
correctly maintained in its ruling—did not weigh against class certification. Bauman is
inapposite.
8 In the instant case, on May 1, 2017, plaintiffs served defendants a “REQUEST
FOR PRETRIAL DISCOVERY CONFERENCE” (boldface omitted) seeking
“documents relating to the security deposits of the potential class members . . . .” In an
opposition filed on May 3, 2017, defendants claimed the request was “premature” “as no
class has been certified yet” and “[i]t is essential to see whether the class can be certified
or not before [p]laintiffs are allowed to invade privacy rights of third parties and before
the parties engage in costly and time consuming discovery on the merits.” In a May 12,
2017 order, the superior court indicated it “is inclined to agree with defendant[s] that the
parties should utilize a Belaire-West procedure to obtain the consent of the potential class
members to have their personal information disclosed.” (Some capitalization omitted,
italics added; see Belaire-West Landscape, Inc. v. Superior Court (2007) 149 Cal.App.4th
554, 561-562 [opt-out notice in class action alleging wage and hour violation was
sufficient to protect privacy rights of the defendant’s former and current employees who
were potential class members].) Plaintiffs apparently forewent this notice process and
moved for class certification.
9 Given the nonexistence of evidence, we understand why the appellate court in
Bauman refused to simply “assume . . . that other tenants paid similar cleaning fees and
moved out with refunds owing to them . . . .” (Bauman, supra, 45 Cal.App.3d at p. 802.)
21.
DISPOSITION
The order denying class certification is reversed and the matter is remanded with
directions to grant the motion for class certification. Costs on appeal are awarded to
plaintiffs Terese and Nicholas Cardamon.
DETJEN, Acting P.J.
WE CONCUR:
PEÑA, J.
SMITH, J.
22.