Reese v. Wal-Mart Stores, Inc.

• Decision Date: 03 August 1999
• Docket Number: No. C029199,WAL-MART,C029199
• Citation: 73 Cal.App.4th 1225,87 Cal.Rptr.2d 346
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 Cal. Daily Op. Serv. 6197, 1999 Daily Journal D.A.R. 7941 Gerald REESE, Plaintiff and Appellant, v.STORES, INC., et al., Defendants and Respondents.

Page 346

87 Cal.Rptr.2d 346

73 Cal.App.4th 1225, 99 Cal. Daily Op. Serv. 6197,

1999 Daily Journal D.A.R. 7941

Gerald REESE, Plaintiff and Appellant, v. WAL-MART STORES, INC., et al., Defendants and Respondents.

No. C029199.

Court of Appeal, Third District, California.

Aug. 3, 1999.

Donald P. Driscoll, Albany, and Kevin G. Cronin, for Plaintiff and Appellant.

Faustman, Carlton, DiSante & Freudenberger, David F. Faustman and Ronna S. Reed, Sacramento, for Defendants and Respondents.

KOLKEY, J.

INTRODUCTION

Plaintiff Gerald Reese appeals from an order denying his motion for class certification in his action against defendants Wal-Mart Stores, Inc. and George Bronk, an employee at the Wal-Mart store located on Watt Avenue in Sacramento. ¹ Plaintiff argues that the trial court utilized improper legal criteria in denying his motion for class certification. We disagree and shall affirm.

In an appeal from a decision denying class certification, a reviewing court will "not disturb a trial court ruling on class certification which is supported by substantial evidence unless (1) improper criteria were used [citation]; or (2) erroneous legal assumptions were made [citation]." (Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470, 174 Cal.Rptr. 515, 629 P.2d 23 [Richmond ].) In other words, we will not substitute our judgment for that of the trial court as long as the trial court applied correct legal principles and assumptions, and did not abuse its discretion in arriving at its decision. (Occidental Land, Inc. v. Superior Court (1976) 18 Cal.3d 355, 361, 134 Cal.Rptr. 388, 556 P.2d 750.)

In this case, the trial court did use the proper legal standard: whether substantial benefits would accrue to both the litigants and the courts from class treatment. (E.g., City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 459, 115 Cal.Rptr. 797, 525 P.2d 701.) Moreover, the trial court did not abuse its discretion in finding that plaintiff failed to demonstrate that substantial benefits would accrue from class treatment in this case. A review of California Supreme Court decisions suggests Plaintiff also appeals from an order denying his motion for reconsideration. The order denying reconsideration is not appealable, and thus, the appeal therefrom is dismissed. (Crotty v. Trader (1996) 50 Cal.App.4th 765, 768-769, 57 Cal.Rptr.2d 818; Estate of Simoncini (1991) 229 Cal.App.3d 881, 891, 280 Cal.Rptr. 393; In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1550, fn. 2, 267 Cal.Rptr. 764.)

that there are at least three different benefits from class treatment: redress for numerous aggrieved parties who could not otherwise maintain individual actions; the avoidance of the possibility of multiple actions; and the disgorging of the wrongdoer's unjust enrichment. (Richmond, supra, 29 Cal.3d at p. 469, 174 Cal.Rptr. 515, 629 P.2d 23; Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 714-715, 63 Cal.Rptr. 724, 433 P.2d 732 [Daar ].) In this case, the trial court did not abuse its discretion in determining that substantial benefits would not accrue from class treatment where (1) individual claims were viable without class treatment; (2) multiple lawsuits were unlikely in light of the fact that the only aggrieved party who had brought suit (the plaintiff) had deliberately generated his own injury; (3) class treatment would consume more time and expense than adjudicating the pending case or a limited number of individual suits; (4) some form of effective class-wide relief was available without class certification through the unfair competition claim alleged by plaintiff; and (5) the statutory penalties sought by plaintiff and others could disgorge any unjust enrichment without resort to class certification.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff's complaint is directed at a "Ladies Day" promotional discount at which defendant purportedly offered female customers a lower price for a "lube express" oil change at various automotive repair facilities. In Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 34, 219 Cal.Rptr. 133, 707 P.2d 195, the California Supreme Court held that "Ladies Day" and "Ladies Night" discounts offered by various car wash facilities and nightclubs, respectively, violated the provisions of the Unruh Civil Rights Act. The court reasoned that "the Legislature established that arbitrary sex discrimination by business is per se injurious" (id., at p. 33, 219 Cal.Rptr. 133, 707 P.2d 195), and that "differential pricing based on sex may be generally detrimental to both men and women, because it reinforces harmful stereotypes." (40 Cal.3d at p. 34, 219 Cal.Rptr. 133, 707 P.2d 195.)

In his second amended complaint--the relevant pleading for purposes of this appeal--plaintiff alleges: "During 1994, 1995, and 1996, it was Wal-Mart's practice on each day designated at one of its locations as 'Ladies Day' (generally, each Tuesday) to charge male customers at that location one price (generally approximately $18.79) for an oil change, while charging female customers some lower price (generally approximately $15.00) for the exact same labor, services, and parts. Wal-Mart's corporate policy was to provide this weekly discount only to women. One of Wal-Mart's purposes in creating 'Ladies Day' was every day of the week to give women the opportunity to return on 'Ladies Day' for a discount. Each time that Wal-Mart charged a male oil-change customer more than defendants' 'Ladies Day' price, Wal-Mart committed gender-based price discrimination to the detriment of that male customer--regardless of the day of the week." ²

Plaintiff alleges that on April 9, 1996, he took his automobile to defendant's store located on Watt Avenue in Sacramento for Plaintiff thereafter brought suit in May 1996. His second amended complaint (filed in April 1997) is brought on behalf of himself, a nationwide class of males who paid for an oil change at Wal-Mart, and the general public. The first cause of action alleges defendant violated the Unruh Civil Rights Act (Civ.Code, §§ 51 and 51.5) by engaging in discriminatory business practices based on gender. ³ The second cause of action charges defendant with a violation of the Gender Tax Repeal Act (Civ.Code § 51.6), premised on gender-based discriminatory pricing practices. ⁴ Plaintiff's third cause of action charges defendant with unfair competition in violation of Business and Professions Code section 17200 by reason of the violations alleged in the first and second causes of action. ⁵ In his prayer for relief, plaintiff asks, inter alia, for actual damages, treble damages of not less than $1,000 for each and every violation of Civil Code sections 51, 51.5, or 51.6, "rescission and/or restitution to the general public and disgorgement for the benefit of the general public of any and all moneys received by Defendant[ ] as a result of these unlawful practices or acts," preliminary and permanent injunctive relief, and an award of attorney fees pursuant to Civil Code section 52. ⁶

an oil change. Plaintiff was charged $18.79 for the service.

On or around June 13, 1997, pursuant to defendant's motion to strike, the trial court struck the "nationwide" allegations of plaintiff's class and further ruled that the applicable statute of limitations for a violation of the Unruh Civil Rights Act is one year.

Defendant thereafter moved for summary judgment on the grounds that the Unruh Civil Rights Act only applies to services and that plaintiff suffered no actual injury because he deliberately failed to request the "Ladies Day" discount. Defendant relied on deposition testimony which established that the "Ladies Day" discount at the Wal-Mart store in Sacramento was given to any customer who requested it, regardless of gender. Defendant also submitted excerpts from plaintiff's deposition, wherein plaintiff admitted that he had gone to the Wal-Mart store on the day in question because it was the Ladies Day Special, "fully expecting to be After defendant's motion for summary judgment was filed but before the hearing thereon, plaintiff filed his motion for class certification. (Code Civ. Proc., § 382.)

discriminated against," and did not ask for the discount.

The motions were heard on January 20, 1998. The motion for summary judgment was denied. The motion for class certification, following argument, was taken under submission. By written order dated February 4, 1998, the trial court denied plaintiff's motion for class certification and ruled as follows:

"There are many factors germane to the determination of whether to approve or deny class certification pursuant to [Code of Civil Procedure] section 382. Among those are whether substantial benefits will accrue to the litigants, the class, the public, and the courts, and whether it is likely that a high percentage of class members would ultimately come forward to prove separate claims to a portion of the total class recovery. [Citations.] In reviewing the evidence and papers submitted, the Court concludes that class certification should be denied. Since plaintiff personally will be compensated [ ] fully if he prevails, including payment of his attorney fees, he does not benefit. The court does not benefit, since the time, effort, and expense of determining this case standing alone would be less than in a class action by many magnitudes. In this case, plaintiff is claiming that a class action would provide substantial benefits to the Court and the class members. At the present time, the court is not aware of any persons who claim that they were injured by defendant's practices other than plaintiff. Thus the Court does not find that in the absence of this class action, multiple lawsuits would occur nor would it be more efficient for class members than individual actions. Pursuant to Civil Code section 52, prevailing plaintiffs are entitled to a minimum amount of damages of $1,000, plus their attorney fees. There are enough incentives built into the statute that...