Noel v. Thrifty Payless, Inc.

Decision Date29 July 2019
Docket NumberS246490
Citation445 P.3d 626,250 Cal.Rptr.3d 234,7 Cal.5th 955
CourtCalifornia Supreme Court
Parties Diana Nieves NOEL, Plaintiff and Appellant, v. THRIFTY PAYLESS, INC., Defendant and Respondent.

Emergent Legal, Emergent, Christopher Wimmer, San Francisco, Peter Roldan ; Public Justice, Leslie Brueckner and Karla Gilbride for Plaintiff and Appellant.

Chavez & Gertler, Mark A. Chavez, Mill Valley; Public Citizen Ligation Group and Allison M. Zieve for Public Citizen as Amicus Curiae on behalf of Plaintiff and Appellant.

Rock Law, Matt J. Malone, San Francisco; Nelson & Fraenkel, Gretchen M. Nelson, Los Angeles; Arbogast Law and David M. Arbogast, Los Angeles, for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiff and Appellant.

Lieff Cabraser Heimann & Bernstein, Robert J. Nelson, Roger N. Heller and Melissa Gardner, San Francisco, for National Consumer Law Center and National Association of Consumer Advocates as Amici Curiae on behalf of Plaintiff and Appellant.

Jocelyn D. Larkin and Daniel Nesbit for Impact Fund, California Employment Lawyers Association, Centro Legal de la Raza, Legal Aid at Work and Worksafe as Amici Curiae on behalf of Plaintiff and Appellant.

Kelly, Hockel & Klein, Klein, Hockel, Iezza & Patel, Michael D. Early, San Francisco, and Mark P. Iezza, Pleasant Hill, for Defendant and Respondent.

Utrecht & Lenvin and Paul F. Utrecht, San Francisco, for Washington Legal Foundation and California Retailers Association as Amici Curiae on behalf of Defendant and Respondent.

Opinion of the Court by Cantil-Sakauye, C.J.

This case is a putative class action brought on behalf of retail purchasers of an inflatable outdoor pool sold in packaging that allegedly misled buyers about the pool’s size. We must decide whether the trial court abused its discretion when it denied the representative plaintiff’s motion for class certification on the basis that he had not supplied evidence showing how class members might be individually identified when the time came to do so. The Court of Appeal upheld this ruling. It reasoned that this evidence was necessary to ensure that proper notice would be given to the class, and that without it, the trial court could appropriately conclude that plaintiff had not satisfied the ascertainability requirement for class certification.

We conclude that the trial court erred in demanding that plaintiff offer such evidence to satisfy the ascertainability requirement. Plaintiff’s proposed class definition articulates an ascertainable class, in that it defines the class "in terms of objective characteristics and common transactional facts" that make "the ultimate identification of class members possible when that identification becomes necessary." ( Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal.App.4th 908, 915, 107 Cal.Rptr.2d 761 ( Hicks ).) As we will explain, the ascertainability requirement does not incorporate the additional evidentiary burden that the courts below would have imposed. We therefore reverse the judgment of the Court of Appeal and remand the matter for further proceedings consistent with our opinion.


In November 2013, plaintiff James Noel1 filed a verified complaint in Marin County Superior Court, alleging claims under the unfair competition law ( Bus. & Prof. Code, § 17200 et seq. ) (UCL), the false advertising law ( Bus. & Prof. Code, § 17500 et seq. ) (FAL), and the Consumers Legal Remedies Act ( Civ. Code, § 1750 et seq. ) (CLRA).

These claims arose out of Noel’s purchase of an inflatable outdoor pool marketed as Kids Stuff Ready Set Pool 8FT X 25IN (hereinafter Ready Set Pool) from a Rite Aid drugstore in San Rafael.2 Noel alleges that his purchase of the pool was influenced by a photograph that appears on its packaging. This photo, as it appears within the complaint, indicates that the pool can handily accommodate several adults when inflated and filled:


Noel asserts that when he set up the pool, he discovered that it was much smaller than the photograph on the box conveys. To demonstrate this, the complaint also includes another photograph of the pool, as inflated and filled:


Noel’s claims under the UCL, the FAL, and the CLRA are premised on this alleged discrepancy.3

In May 2014, Noel moved to certify a class defined as "[a]ll persons who purchased the Ready Set Pool at a Rite Aid store located in California within the four years preceding the date of the filing of this action." By that time, Noel had conducted discovery that yielded the total number of Ready Set Pools that Rite Aid had sold in California during the class period (20,752, with 2,479 of the pools being returned), and the revenue obtained through these sales ($949,279.34). Noel’s discovery did not, however, delve into whether Rite Aid kept records of these transactions, or into the more general subjects of whether and how Rite Aid collected contact information from its customers and how it disseminated information to them.4

In opposing class certification, Rite Aid argued that Noel had not demonstrated the existence of an ascertainable class — a well-established prerequisite for class certification under section 382 of the Code of Civil Procedure. (See, e.g., Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021, 139 Cal.Rptr.3d 315, 273 P.3d 513 ( Brinker ); In re Tobacco II Cases (2009) 46 Cal.4th 298, 318, 93 Cal.Rptr.3d 559, 207 P.3d 20 ( In re Tobacco II ); Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326, 17 Cal.Rptr.3d 906, 96 P.3d 194 ( Sav-On ); Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435, 97 Cal.Rptr.2d 179, 2 P.3d 27 ( Linder ); Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470, 174 Cal.Rptr. 515, 629 P.2d 23 ( Richmond ); Vasquez v. Superior Court (1971) 4 Cal.3d 800, 809, 94 Cal.Rptr. 796, 484 P.2d 964 ( Vasquez ); Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 704, 63 Cal.Rptr. 724, 433 P.2d 732 ( Daar ).) Specifically, Rite Aid asserted that to show an ascertainable class, Noel bore the burden of introducing evidence in connection with his certification motion that would show how members of the putative class could be identified later in the proceeding, so they could be provided with notice of the pending action. In Rite Aid’s view, Noel’s failure to supply such proof doomed his certification effort.

Noel responded that he had no obligation to offer evidence on this issue in order to secure certification of the class he proposed. His briefing in support of class certification described various ways in which notice of the action might be distributed to absent class members when the time came to do so.5 He explained that "modern day point of sale systems used by major retailers such as Rite Aid can already track purchases by customers who pay by credit card. Many of those customers likely belong to Rite Aid’s reward savings program, which means Rite Aid has contact information for these individuals. Thus, Rite Aid should be quite capable of sending individual notices to these purchasers." Noel also claimed that Rite Aid "sends weekly e-mails to subscribers alerting them to new sales and deals" and mails out weekly advertisements to California customers, providing two other avenues through which notice could be provided to absent class members. However, Noel pointed to no evidence in the record (whether in the form of declarations, interrogatory responses or admissions by Rite Aid, deposition testimony, or information presented via a request for judicial notice) that substantiated his assertions regarding how class members could be notified. He did not, for example, supply the trial court with specific proof that, through a loyalty program, Rite Aid has access to pertinent customer contact information.

The trial court denied the motion for class certification. The court’s order explained that "[w]hile the court might reasonably infer that the class, as defined by [p]laintiff, could be ascertained based on common business practices and record keeping, [p]laintiff has presented no evidence on this subject. Absent some evidence as to what method or methods will be utilized to identify the class members, what records are available, (either from [d]efendant, the manufacturer, or other entities such as banks or credit institutions), how those records would be obtained, what those records will show, and how burdensome their production would be, the court is without sufficient evidence to determine whether the proposed class is ascertainable. Accordingly, [the] motion to certify must be denied."

The trial court also declined to certify a class in connection with Noel’s CLRA claim for a second, separate reason. In the court’s view, common issues did not predominate with this claim because reliance had to be proved individually as to each class member. Finally, the court also found "that a class action is not superior to numerous individual actions, in light of the above findings. The class action will be no more efficient than individual actions in light of the individual issues that must be presented on the issue of reliance and damages." The court’s order was not clear whether this last determination applied only to the CLRA class, as might be inferred by the reference to reliance, or to the action as a whole.

After Noel appealed (see Linder , supra , 23 Cal.4th at p. 435, 97 Cal.Rptr.2d 179, 2 P.3d 27 [denial of certification to an entire class is an appealable order] ), the Court of Appeal found no abuse of discretion in the denial of class certification. ( Noel v. Thrifty Payless, Inc. (2017) 17 Cal.App.5th 1315, 1321, 226 Cal.Rptr.3d 465 ( Noel ).) Addressing the superior court’s determination that Noel had not shown an ascertainable class, the reviewing court diagnosed "the underlying problem with the class certification motion" as "class counsel’s premature filing of the motion without first conducting sufficient discovery to meet its burden of demonstrating there are means of identifying members of...

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