Safaie v. Jacuzzi Whirlpool Bath, Inc.
| Decision Date | 27 April 2011 |
| Docket Number | No. D055896.,D055896. |
| Citation | 122 Cal.Rptr.3d 344,192 Cal.App.4th 1160,2011 Daily Journal D.A.R. 2,11 Cal. Daily Op. Serv. 2327 |
| 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. |
**345 Finkelstein & Krinsk and Howard D. Finkelstein, Jeffrey R. Krinsk, San Diego, **346 and Mark L. Knutson; Law offices of Thomas Grady and Thomas Grady, San Diego, for Plaintiff and Appellant.
Allen Matkins Leck Gamble Mallory & Natsis LLP and George J. Berger, San Diego, for Defendants and Respondents.
*1164 Shahrokh Safaie appeals from the trial court's order denying his motion to recertify a class of individuals who purchased whirlpool bathtubs from defendants Jacuzzi Whirlpool Bath, Inc. and Jacuzzi, Inc. (collectively Jacuzzi). Although the order denying recertification is not appealable, we shall exercise our discretion to treat the appeal as a writ petition. In so doing, we determine the court did not err in denying Safaie's motion. The trial court's prior June 2007 ruling decertifying the class, affirmed on appeal in November 2008, barred Safaie from a second opportunity to seek class certification.
In September 2004, Safaie filed a class action complaint against Jacuzzi alleging 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 alleged the misrepresentations constituted fraud and a breach of warranty and violated several consumer protection statutes, including the unfair competition law and the false advertising law.2 ( Bus. & Prof.Code, §§ 17200 et seq., 17500 et seq.) Safaie sought restitution and injunctive relief on behalf of himself and a class of consumers who also purchased the bathtubs.
Two months later, in November 2004, the voters adopted Proposition 64, which altered the standing rules applicable to UCL claims. (See Californians for Disability Rights v. Mervyn's, LLC (2006) 39 Cal.4th 223, 228, 46 Cal.Rptr.3d 57, 138 P.3d 207 ( Mervyn's ).) Before Proposition 64, any person could file a UCL lawsuit on behalf of the general public even if the person had not suffered any injury. ( Id. at p. 228, 46 Cal.Rptr.3d 57, 138 P.3d 207.) Proposition 64 amended the UCL to require that a private plaintiff must have personally incurred injury to have standing to file the lawsuit. ( Id. at p. 227-228, 46 Cal.Rptr.3d 57, 138 P.3d 207.)
Eight months later, in July 2005, Safaie moved for class certification. Jacuzzi opposed the motion, contending, inter alia, that the issue of whether a consumer relied on and suffered loss from the horsepower rating was too *1165 individualized to permit class treatment. In October 2005, the trial court rejected these arguments and 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 on all other causes of action. In its class certification order, the court stated its ruling was tentative and could be modified at any time before trial.
During these class certification proceedings, the court and parties extensively discussed the passage of Proposition 64, including the existence of unsettled issues regarding the proper interpretation of the **347 amended UCL. In July 2006, the California Supreme Court held Proposition 64 should be applied to pending cases. ( Mervyn's, supra, 39 Cal.4th at p. 227, 46 Cal.Rptr.3d 57, 138 P.3d 207.)
Three months later, in September 2006, Jacuzzi moved to decertify the class, arguing class certification was not appropriate because the issues of reliance, causation, and damages were too individualized. To refute this contention, Safaie argued that reliance could be shown based on an inference of common reliance by class members. Safaie submitted numerous supporting evidentiary items, including documents depicting the manner in which Jacuzzi presented the horsepower statement to the public.
While Jacuzzi's decertification motion was pending, in November 2006, the California Supreme Court granted review of two decisions, each of which presented the issue whether the UCL, as amended by Proposition 64, requires all class members to have suffered injury in fact and to have actually relied on the defendant's misrepresentation. (See In re Tobacco II Cases (2009) 46 Cal.4th 298, 93 Cal.Rptr.3d 559, 207 P.3d 20 ( Tobacco II ); Pfizer Inc. v. Superior Court (2010) 182 Cal.App.4th 622, 105 Cal.Rptr.3d 795.)
In June 2007, the trial court granted Jacuzzi's decertification motion based on its conclusion that individual issues of fact predominated over common issues. In its written order, the trial court explained its reasoning: [¶] ... The trial court also ruled the case was not amenable to nationwide (as opposed to statewide) class certification.
In August 2007, Safaie appealed from this order decertifying the class. In November 2008, this court affirmed the order. ( Safaie I, supra, D051511.) We concluded the record supported the trial court's finding that class certification on each of the claims (fraud, breach of warranty, and UCL) was not appropriate because individual issues predominated on the elements of reliance, causation, and injury. With respect to the UCL causes of action, we recognized the split in authority on the issue whether reliance is a required element of a UCL claim for absent class members after Proposition 64, and that the Tobacco II decision was pending before the California Supreme Court pertaining to this and other issues. ( Ibid.) But we found our conclusion was justified under both pre-and post-Proposition 64 standards, emphasizing there was no evidentiary showing the horsepower rating was material to a majority of the class. ( Ibid.) We also rejected Safaie's argument that the court had no authority to change its prior interim ruling granting certification. ( Ibid.)
Although the Tobacco II decision had been fully briefed and was pending in the California Supreme Court when we filed the decision (and the high court had granted and held three additional petitions for review raising the same issues), Safaie did not file a petition for review in his case. **348 Thus, on January 12, 2009, we issued the remittitur.
Four months later, in May 2009, the California Supreme Court filed the Tobacco II decision, in which the court held that under Proposition 64 a named class representative alleging fraudulent misrepresentation under the UCL must establish reliance, causation, and injury, but this showing is not required for absent class members. (See Tobacco II, supra, 46 Cal.4th at pp. 312-329, 93 Cal.Rptr.3d 559, 207 P.3d 20.) Interpreting the UCL as amended by Proposition 64, the high court reaffirmed that a class plaintiff must establish the statutory requirements for a class action, but stated that "relief under the UCL is available [for the absent class members] without individualized proof of deception, reliance and injury." ( Id. at p. 320, 93 Cal.Rptr.3d 559, 207 P.3d 20.)
One month later, the trial court held a status conference in Safaie's case. Because the class allegations had been dismissed in the earlier decertification order, and this order was affirmed on appeal, the sole matter before the trial court was Safaie's individual action against Jacuzzi. However, in his status *1167 conference statement, Safaie noted his intention to file a "motion for recertification" based on the Tobacco II decision and to pursue discovery on classwide issues. Jacuzzi objected that the court had no authority to revisit the class certification issue. The court requested that the parties brief the issues.
Thereafter, in July 2009, Safaie formally moved for class certification on his UCL claims, arguing that, under Tobacco II, a class action was appropriate based on the evidence showing Jacuzzi's common course of wrongful conduct in connection with the marketing and sale of its whirlpool baths. Although Safaie relied on the same factual record that was presented in his prior motion, he argued the Safaie I decision did not bar his motion because of the intervening change of law exception to the law of the case doctrine. In opposing the motion, Jacuzzi contended the court had no jurisdiction to reopen the class certification issue after the decertification order was affirmed on appeal. Jacuzzi also argued the law of the case doctrine barred the motion and the proposed class was not viable even assuming the court could reach the issues on their merits.
After a hearing, the trial court denied the motion. Citing Stephen v. Enterprise Rent-A-Car (1991) 235 Cal.App.3d 806, 1 Cal.Rptr.2d 130 ( Stephen ), the court found Safaie was barred from renewing his class certification motion after the prior decertification order was affirmed on appeal. The trial court additionally found the asserted intervening law exception to the law of the case doctrine was inapplicable because the Tobacco II decision was filed after the...
To continue reading
Request your trial
- Iskanian v. CLS Transp. L.A., LLC
- Iskanian v. CLS Transp. L. A., LLC
- Fierro v. Landry's Rest. Inc.
- Phillips v. Sprint PCS