Safaie v. Jacussi Whirlpool Bath, Inc., D051511 (Cal. App. 11/12/2008)
| Decision Date | 12 November 2008 |
| Docket Number | D051511 |
| Court | California Court of Appeals Court of Appeals |
| Parties | SHAHROKH DOCTOR SAFAIE, Plaintiff and Appellant, v. JACUZZI WHIRLPOOL BATH, INC., et al., Defendants and Respondents. |
Appeal from an order of the Superior Court of San Diego County, No. GIC835578, Linda B. Quinn, Judge. Affirmed.
Shahrokh Doctor Safaie appeals from an order decertifying his lawsuit against Jacuzzi as a class action.1 He asserts the trial court had no authority to change its previous ruling granting class certification; the court applied erroneous legal standards when it decertified the class; and the record does not support the decertification ruling.
We reject his arguments and affirm the order.
In September 2004, Safaie filed a class action complaint against Jacuzzi alleging causes of action for violations of the Unfair Competition Law (UCL) and False Advertising Law (FAL) (Bus. & Prof. Code, §§ 17200 et seq., 17500 et seq.)2; violation of the Consumers Legal Remedies Act (CLRA) (Civ. Code, § 1750 et seq.); breach of express warranty; and breach of the implied warranty of merchantability under the Song-Beverly Consumer Warranty Act (Song-Beverly Act) (Civ. Code, § 1790 et seq.).
Safaie alleged that Jacuzzi made representations in its brochures, marketing materials, and advertisements that certain models of its whirlpool bathtubs had two- or three-horsepower motors, when in fact the tubs had less horsepower. Safaie, a plumber, was looking for a whirlpool tub with strong jets that would provide an effective massage, and when he received a Jacuzzi brochure stating the Torretta model tub had a three-horsepower motor he believed this tub would meet his needs. Accordingly, he purchased the tub and remodeled his bathroom to accommodate it. When he operated the tub, he noticed the water jet pressure was "not sufficiently powerful." He later determined the tub contained only a 1.5-horsepower motor. Safaie alleged that Jacuzzi's deceptive practices allowed it to sell more whirlpool tubs than it otherwise would have and/or allowed it to charge inflated prices for its tubs. The relief requested by Safaie included injunctions prohibiting Jacuzzi from disseminating the deceptive advertising materials and requiring it to place corrective advertising advising the public of its past inaccuracies, and restitution and other relief to purchasers.
In July 2005, Safaie filed a motion for class certification. Jacuzzi opposed the motion, contending, inter alia, that the issue of whether the average consumer relied on and suffered loss from the horsepower rating was too individualized to permit class treatment. In October 2005, the trial court granted Safaie's request for class certification. The court certified a nationwide class for the UCL and express warranty causes of action and a California-resident class as to all causes of action. The class consisted of: "`[a]ll persons who, during the applicable statute of limitations, purchased a new Jacuzzi brand Designer-Series Whirlpool Bath during the period in which Jacuzzi used its "Designer Foldouts" and other similar materials to advertise and market such Baths as having motor pumps with either 3 or 2 horsepower when, in fact, the motor pumps possessed substantially less horsepower.'"
In its order granting the class certification, the court stated that its ruling was tentative and could be modified at any time prior to trial.
Meanwhile, in November 2004, the voters adopted Proposition 64, which altered the standing rules applicable to UCL claims. Prior to Proposition 64, any person—even if the person had not suffered any injury—could file a UCL lawsuit on behalf of the general public. Based on concerns that this lenient standing rule was encouraging frivolous lawsuits, voters adopted Proposition 64, which amended the UCL to require that a private plaintiff had to personally incur injury to have standing to file the lawsuit. (See Californians for Disability Rights v. Mervyn's, LLC (2006) 39 Cal.4th 223, 228 (Mervyn's).)
At various points during the proceedings, the parties and the court discussed the passage of Proposition 64 and its potential impact on the case. Further, after the court's tentative certification ruling, the parties and the court discussed avenues of discovery that might be pursued that could impact class certification or decertification. In June 2006, the trial court told the parties that the class certification issue was not fully resolved, and the parties should be prepared to discuss the matter in light of an anticipated California Supreme Court ruling and in the event of a decertification motion. In July 2006, the California Supreme Court concluded Proposition 64 should be applied to pending cases. (Mervyn's, supra, 39 Cal.4th at p. 227.) Thereafter, the California Supreme Court granted review of two published appellate court decisions addressing various issues raised by Proposition 64. (In re Tobacco II Cases (S147345, rev. granted Nov. 1, 2006); Pfizer, Inc. v. Superior Court (S145775, rev. granted Nov. 1, 2006.)
In September 2006, Jacuzzi filed a motion to decertify the class, again arguing that class certification was not appropriate because the issues of reliance, causation, and damages were too individualized.3 To refute this contention, Safaie argued that reliance could be shown based on an inference of common reliance by class members—i.e., Jacuzzi's overstatement of the horsepower rating was a misrepresentation about a material factor, and thus reliance could be inferred on a classwide basis.
During the course of the certification and decertification proceedings, Safaie submitted various evidentiary items to support his position that class treatment was appropriate, including documents depicting the manner in which Jacuzzi presented the horsepower statement to the public. These documents included a brochure, product price books, catalogues, web pages, and a retail receipt provided upon purchase of a tub. In these documents, the reference to the motor's horsepower consisted of a line stating "2.0 [or 3.0] HP motor," which was included among other statements describing the tub's features.4 The Jacuzzi brochure (which was provided to Safaie) set forth a claim by Jacuzzi that its jets were more powerful than the jets in other manufacturers' tubs, stating
that its "patented Jacuzzi PowerPro[] jet is clearly more powerful than any other product of its kind."5 Additionally, Jacuzzi's brochure, catalogues and Web site contained various statements describing the bathing experience provided by its tubs, such as: "Our PowerPro[ ] jet system provides the ultimate bathing experience with six jets: four fully adjustable hydrotherapy jets and two rotating neck jets"; ; "The [tub] also features four patented PowerPro[ ] jets and our Silent Air Control System, providing optimal hydrotherapy performance."
Safaie also submitted deposition testimony and documentary evidence to support his theory that Jacuzzi had intentionally overstated the horsepower rating to influence customers and augment sales. For example, he submitted a Jacuzzi inter-office memoranda describing the company's revision of its horsepower ratings in its catalogs, and a technical bulletin created by Jacuzzi's customer service department advising its authorized service agents that it was changing the way it referred to the horsepower ratings in its marketing literature. The technical bulletin included a chart depicting that references to 1.5- or .75- horsepower would now be referred to as 3.0- or 2.0- horsepower, respectively. The bulletin instructed the service agents to familiarize themselves with the horsepower ratings in the chart "in the event that you mention anything related to the horsepower with the consumer." Safaie also provided a document, which appears to be part of a Powerpoint presentation, that sets forth a list of the tubs' features, including the two- or three-horsepower motor. According to Safaie (but disputed by Jacuzzi), this document was included in sales training materials provided by Jacuzzi to a third party. Safaie submitted deposition testimony that includes a reference to a statement made by Jacuzzi, apparently in these same materials, that its "unique patented Jacuzzi PowerPro jet is more powerful than any other product of its kind."
In June 2007, the trial court granted Jacuzzi's decertification motion, concluding individual issues of fact predominated over common issues. The trial court reasoned: [¶] . . .
The trial court also ruled that the case was not amenable to a nationwide (as opposed to statewide) class certification because individual issues of law predominated over common issues. We conclude below that the record supports the trial court's finding that class certification was not...
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