McKinney v. Sanwal, 031519 CAAPP3, C085364

Docket Nº:C085364
Opinion Judge:DUARTE, J.
Party Name:VERNON MCKINNEY et al., Plaintiffs and Appellants, v. RAVI SANWAL et al., Defendants and Respondents.
Judge Panel:We concur: Butz, Acting P. J. Mauro, J.
Case Date:March 15, 2019
Court:California Court of Appeals

VERNON MCKINNEY et al., Plaintiffs and Appellants,


RAVI SANWAL et al., Defendants and Respondents.


California Court of Appeals, Third District, San Joaquin

March 15, 2019


Super. Ct. No. STK-CV-UMT-2016-0009879


The Adobe Hacienda Apartments consist of 171 residential units in 12 buildings (plus a pool house) on three contiguous parcels. The apartments are owned by defendants Ravi and Manita Sanwal (sued individually and as trustees of their living trust, collectively Sanwal). The City of Stockton (the City), not a party, brought code enforcement actions and issued abatement orders based on inspections allegedly revealing shoddy conditions.

Plaintiffs, former tenants Vernon McKinney, Theresa Hillman, and Brittani Silva (collectively McKinney) sued. They alleged in part that Sanwal collected rent during a statutory period while failing to remedy the problems and charged excessive late fees.

McKinney appeals from an order denying class certification. The appeal lies. (See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 112, pp. 175-176.)

Generally speaking, McKinney contends the trial court considered improper factors, improperly weighed the merits of the alleged claims or defenses in its ruling, and gave insufficient (or no) consideration to the benefits class certification would confer on the parties and the judicial system. We disagree and shall affirm the order denying class certification.


We summarize the facts before the trial court when it exercised its discretion in ruling on McKinney's motion for class certification.

The Complaint and Class Certification Motion and Opposition

McKinney alleged that the City's inspections of the apartment complex resulted in hundreds of code violations in 2015, some of which were serious or “habitability” violations. Sanwal sued the City in response to the City's enforcement actions, and in February 2016 the City entered into a settlement with Sanwal that in part agreed all alleged violations had been resolved; the City then filed a notice of “compliance and satisfaction” covering the apartments. As relevant herein, McKinney's suit is predicated on Sanwal's collection of rent after a statutory period Sanwal had to remedy the alleged habitability violations; it is also based on Sanwal's policy of charging allegedly unlawful late fees, an identical flat $75 fee for each unit. The complaint explicitly excluded damages for violations occurring solely within units; it was limited to violations pertaining solely to “common” areas.

The class certification motion did not embrace all the theories in the operative complaint. It proposed a “rent damages” class and a “late fee” class. The rent damages class would consist of all current and former tenants from whom Sanwal “collected rents after the statutory abatement-compliance deadline, in violation of Civil Code § 1942.4.”1 The late fee class would consist of current and former tenants who paid excessive late fees during a defined period.

Sanwal in part argued that none of the evidence submitted by McKinney showed that any plaintiff had ever actually paid a late fee, pointing to deposition testimony by Sanwal that late fees were routinely waived or credited toward rent. As for the proposed rental damages claim, Sanwal pointed to evidence that because of the configuration of the complex, different units had different access to different alleged “common” areas, therefore individualized litigation of how each plaintiff was impacted by alleged defects would be necessary; in other words, there were few if any common issues of fact. Class certification would not benefit the parties or the court, because there were substantial individualized issues to be determined; therefore, the case was more suitable to a regular multiple-plaintiff action or consolidated actions.

McKinney's reply included additional evidence, in particular declarations from six tenants (the three plaintiffs and three tenants deposed during discovery), describing various issues with their own units and alleged common areas.[2] Only two claimed to have paid late fees (Weber and Tellez), and on this point they partly pointed to records obtained from Sanwal. McKinney argued it would be a simple matter to examine Sanwal's records to determine which other tenants paid late fees and only those who had would be entitled to a refund. If the fact that none of the named plaintiffs were still tenants posed a procedural problem, the reply proposed three current tenants (Weber, Tellez, and Golson) who were willing to step in and litigate the case on behalf of the relevant classes.3

Sanwal's supplemental opposition in part argued the rent damages class was still not viable. First, the statute (§ 1942.4) did not contemplate aggregating citations regarding multiple buildings into one over-arching habitability claim to an entire complex, it “applies to specific dwellings and calculates violations of its terms based on the specific date [a notice of violation] is issued.” Second, although the complaint purported to exclude problems that existed solely within individual units, the term “common area” was not defined, and given the layout of the complex, each tenant's access to (and use or potential use of) any specific common area would vary greatly. Sanwal argued that “individualized determinations” unique to each plaintiff abounded, such as how long she or he was a tenant, which if any of the alleged common problems affected areas near that tenant's unit (and at least impliedly, whether that tenant would have used a particular alleged “common” feature of the complex) and the degree of harm (if any) suffered by each tenant for the lack of use of any particular common area or areas deemed to be substandard.

As for the proposed late fee class, Sanwal claimed McKinney kept changing his characterization about whether the class was to be composed of tenants who paid the late fee or all tenants who simply had the flat late fee in their agreements. In somewhat confusing deposition testimony, Tellez indicated that late fees were charged but credited back to her. Weber had testified in her deposition that although her husband had better knowledge of the family finances than she did, at least twice late fees were credited back, though a full reading...

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