Gilmore v. Sears, Roebuck & Co.

Filed 7/20/07 Gilmore v. Sears, Roebuck & Co. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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After being injured when his treadmill broke, the plaintiff sued the retailer and the manufacturer for personal injury. He later added consumer protection causes of action and sought to obtain class certification pertaining to the consumer protection causes of action only. The trial court denied the motion for class certification, finding that (1) there was no ascertainable class and (2) plaintiff did not supply an adequate class representative. Plaintiff appeals, disputing both conclusions. We affirm because plaintiff did not supply an adequate class representative. Having so concluded, we need not consider whether plaintiff defined an ascertainable class.

STANDARD OF REVIEW

The California Supreme Court quite recently reviewed the established standards for class certification generally. (Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1106 (Lockheed).) Code of Civil Procedure section 382 authorizes class actions when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court . . . . The party seeking certification has the burden to establish the existence of both an ascertainable class and a well-defined community of interest among class members. [Citations.] The community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class. [Citation.]

The certification question is essentially a procedural one that does not ask whether an action is legally or factually meritorious. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 439-440 (Linder).) . . .

We review the trial court's ruling for abuse of discretion. Because trial courts are ideally situated to evaluate the efficiencies and practicalities of permitting group action, they are afforded great discretion in granting or denying certification. . . . [Accordingly,] a trial court ruling supported by substantial evidence generally will not be disturbed unless (1) improper criteria were used [citation]; or (2) erroneous legal assumptions were made [citation] [citation]. . . . Any valid pertinent reason stated will be sufficient to uphold the order. (Linder, supra, 23 Cal.4th at pp. 435-436; see also Lockheed, supra, 29 Cal.4th at p. 1106.) (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326-327.)

With this standard of review in mind, we recount the factual and procedural background leading to this appeal.

FACTUAL BACKGROUND

While living in San Jose in 1999, Suzanne Nedeau bought a Soft Strider treadmill from defendant Sears, Roebuck and Co. (She now goes by her married name, Suzanne Weber.) The Soft Strider treadmill is manufactured by defendant ICON Health & Fitness, Inc. In 2002, she began dating plaintiff Allan Gilmore and brought the treadmill with her when she moved in to his house. Gilmore read the treadmill manual and used the treadmill regularly. Suzanne eventually moved out and left the treadmill for Gilmore. The treadmill periodically needed repairs, and Gilmore had those done by Sears under the warranty. While replacing a belt under the warranty, a technician bent the frame. On April 1, 2003, a month or two after the repair during which the frame was bent, the walking deck broke as Gilmore was using the treadmill, causing him serious injury. Because the broken treadmill was still under warranty, Sears replaced it, though with a different brand. Gilmore retained possession of the walking deck and the walking belt from the broken Soft Strider treadmill.

Sears and ICON presented evidence that Gilmores action for the failure of the Soft Strider treadmill walking deck is the only claim either entity has had. Although Sears has sold 25,658 of the Soft Strider treadmills at issue in this litigation, it has received no claims for broken walking decks, except for Gilmores claim. In seven years, from September 1998 to December 2005, no action was litigated against ICON for failure of a walking deck, except this case. Only one other walking deck failure has been reported on the Soft Strider treadmill. It happened in Minnesota in July 2002.

PROCEDURAL BACKGROUND

Gilmore filed a complaint for damages against Sears. He alleged two causes of action: (1) strict products liability and (2) negligence, both based on Searss sale of the defective treadmill. Although these two causes of action are still pending, they are not included in Gilmores class certification request.

Gilmore filed a second amended complaint, which added
(1) ICON Health & Fitness, Inc., the maker of the treadmill, as a defendant, and (2) the causes of action relevant to the class certification request.^[1] The two new causes of action are for violation of (1) Californias unfair competition law (UCL) and (2) Californias Consumer Legal Remedies Act (CLRA). In connection with these new causes of action, Gilmore alleged the existence of a class of California purchasers and owners of Soft Strider treadmills with claims under the UCL and CLRA.^[2]

After defendants answered the second amended complaint, Gilmore filed a motion for an order certifying the UCL and CLRA causes of action as class actions claims. Gilmore defined the class he sought to represent as [a]ll consumers residing in California who currently own or purchased from either Sears or ICON a Health Rider Soft Strider or Soft Strider EX treadmill. Excluded from the proposed class were (1) anyone who bought the treadmill for anything other than home use and (2) the judge, his staff, and his family members.

In a supporting points and authorities, Gilmore explained that Soft Strider treadmills are manufactured by ICON and distributed to Sears for sale. The documentation accompanying the treadmills states that the treadmills are safe for use by persons weighing up to 250 pounds. The walking deck is made of medium density fiberboard, a composite wood product, a design Gilmore alleges is unsafe and unmerchantable and is not adequate for use by persons weighing up to 250 pounds. Gilmore served a notice on defendants, as required by the CLRA, demanding immediate recall of the treadmills, but defendants did not take action.

Along with his memorandum of points and authorities, Gilmore filed the declarations of two experts, Lawrence Keil, a structural engineer, and William Dost, a wood technologist. Both opined that the treadmill design is defective because of the use of medium density fiberboard and the lack of adequate support. Keil stated that the design of the treadmills using the 3/4 inch [medium density fiberboard] panel as a treadmill base is not reasonable and is unsafe for use by persons weighing in excess of approximately 70 pounds. Dost stated that medium density fiberboard is both inappropriate and unreasonable to be used as incorporated in to the design of the [Soft Strider treadmills].

Sears and ICON filed separate oppositions to Gilmores motion for class certification. They set forth three main arguments against class certification: (1) he did not define
an ascertainable class, (2) he is not an adequate class representative, and (3) he did not demonstrate a well-defined community of interest.

In reply, Gilmore stated that, if he is not an adequate class representative, Suzanne Weber, the person who purchased the treadmill and gave it to Gilmore, could serve as class representative. In support, Gilmore filed the declaration of Suzanne Weber, who now lives in North Carolina, stating that she is willing to participate as class representative.

In a written order, the trial court denied Gilmores motion for class certification because (1) there is no ascertainable class and (1) there is no adequate class representative.

On the issue of class ascertainability, the court noted that the proposed class is all California owners of the Soft Strider treadmill. However, it reasoned that this is not an appropriate class because there have been only two reported failures of the walking deck (Gilmores and the one in Minnesota). The absence of other failures shows that the walking decks accommodate adults up to 250 pounds, as represented. In arriving at this conclusion, the trial court recognized that failure of the walking deck is not necessary to a claim under the UCL and CLRA; instead, it is only necessary to prove that class members are likely to be deceived and suffer some injury as a result of the deception. However, if walking decks are not failing to perform as represented, reasoned the court, then there is no deception.

On the issue of adequacy of a proposed class representative, the trial court found three problems requiring denial of class certification. First, the court found that neither Gilmore nor Weber is a member of the proposed class. Second, the court found that the claims of Gilmore and Weber are not typical of the proposed class. And third, Gilmore has a conflict with the members of the proposed class because he seeks damages for personal injury while the remaining members of the proposed class have no such claim.

DISCUSSION

Although the trial court denied Gilmores motion for class certification for two reasons -- because there is no ascertainable class and there is no adequate class representative -- we need not consider the ascertainability of the proposed class because (1) we conclude the trial court did not abuse its discretion in determining that there is no adequate class representative and (2) any single valid reason for denying class certification is sufficient to uphold the order on appeal. (Linder, supra, 23 Cal.4th at pp. 435-436.)

The trial courts determination there is no adequate class representative is correct for two reasons: (1) Gilmore and Weber are not members of the proposed class and (2) the claims of Gilmore and Weber are not typical of the proposed class.

A.              Gilmore and Weber Not Members of Proposed Class

A plaintiff who wishes to represent a class in a class action must be a member of that class. (LaLiberte v. Pacific Mercantile Bank (2007) 147 Cal.App.4th 1, 6.) Neither Gilmore nor his proposed substitute, Weber, is a member of the class that Gilmore defined as [a]ll consumers residing in California who currently own or purchased from either Sears or ICON a Health Rider Soft Strider or Soft Strider EX treadmill.

Gilmore, who resides in California, did not purchase the Soft Strider treadmill and does not own it now, because Sears replaced it under the warranty. Although Gilmore retained possession of the broken walking deck and the walking belt, he still does not own a treadmill under the definition of the proposed class. Those are simply treadmill parts. Gilmore, therefore, is not a member of the class that he, himself, defined.

Gilmore argues that, even if he is not a member of the proposed class, Weber falls within the plain meaning of the words used to define the proposed class. We disagree because the class includes only consumers residing in California. Weber purchased the treadmill in California, but she does not currently reside in California.

B. Claims of Gilmore and Weber Not Typical of Proposed Class

Gilmore contends that he and Weber are adequate class representatives and the trial court erred in not allowing him to redefine the class to include them. The contention is without merit because neither his nor Webers claim is typical of the claims of the proposed class, which is an element of whether there is a well-defined community of interest.

If the proposed class can be redefined in a way to include the proposed representative, the trial court must give the plaintiff the opportunity to redefine the proposed class. (La Sala v. American Sav. & Loan Assn. (1971) 5 Cal.3d 864, 872 (La Sala).) A recent Court of Appeal decision from the Fourth Appellate District reviewed the facts of La Sala and explained why redefinition of the class to include the proposed class representative is only mandatory if the claim of the proposed class representative is typical of the class:

In La Sala, the plaintiff borrowers brought a class action against a lender, alleging that the lenders trust deed form included a provision permitting acceleration if the borrower executed a junior encumbrance on the secured property. After the lender offered to waive the provision as to the named plaintiffs, the trial court dismissed the action, determining that the plaintiffs no longer represented the class because they had received full relief. The Supreme Court reversed, concluding that the plaintiffs should have been given the opportunity to add new class representatives by amendment, even though the lenders waiver removed plaintiffs from the class they purported to represent. (La Sala, supra, 5 Cal.3d at p. 868.)

La Sala then addressed the lenders arguments regarding alternative grounds for affirming the trial courts order. One of these arguments . . . was that the plaintiffs were never members of the class defined in their complaint. The La Sala plaintiffs defined the class as those borrowing money from the lender during the four years immediately preceding the filing of this action. (La Sala, supra, 5 Cal.3d at p. 874.) Because the plaintiffs borrowed money six and 11 years before they filed the action, the Supreme Court acknowledged the plaintiffs never qualified as class members. (Ibid.) The court nonetheless recognized that the named plaintiffs shared a well-defined community of interest in the questions of law and fact involved, because they were all persons against whom the lender had threatened to enforce its due-on-encumbrance clause. (Id. at p. 875.) The court viewed the time restriction in the complaint as arbitrary, and that the community of interest in the litigations subject matter extended beyond any four-year period and encompasses all borrowers, including plaintiffs, who have been threatened with acceleration under the due-on-encumbrance clause within the period of the statute of limitation. (Ibid.) The court concluded: In sum, plaintiffs nonmembership in the class defined by the complaint stems not from the lack of a community of interest between plaintiffs and the class, but from arbitrary and inadvertent limitation of the class. [Fn. omitted.] (Ibid.) Because the plaintiffs could easily cure the pleading defect by amendment, the court held it would be an abuse of discretion to deny leave to amend. (Id. at p. 876.) (LaLiberte v. Pacific Mercantile Bank, supra, 147 Cal.App.4th at pp. 6-7.)

Citing La Sala, Gilmore asserts that [t]he failure to afford any opportunity to amend or clarify constitutes reversible error. This is an oversimplification of La Salas holding. Instead, denying the opportunity to redefine the proposed class so as to include the proposed class representative is reversible error only if the proposed class representative shares a well-defined community of interest in the questions of law and fact with the other members of the proposed class. (La Sala, supra, 5 Cal.3d at p. 875.) Here, the trial court did not abuse its discretion in determining that neither Gilmore nor Weber shares a well-defined community of interest with the members of the proposed class.^[3]

Gilmore and Weber do not share a well-defined community of interest with the members of the proposed class because their claims are not typical of the class. Unlike the typical class member, they are not left with a worthless treadmill. (See
Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 326 [typical claim as an element of well-defined community].) The evidence shows that the treadmill Weber purchased and gave to Gilmore has been replaced.

While difference in computing damages is not sufficient to deny class certification, differences in the actual existence of damages or in the manner of incurring damages are appropriate considerations. [Citations.] (Caro v. Procter & Gamble Co. (1993) 18 Cal.App.4th 644, 665.) Under Gilmores theory of defendants liability to the class, the damage is that the treadmill is worthless because it is built in a way that will not support the weight of an adult, contrary to the representation that it would support the weight of an adult up to 250 pounds. [T]he damages are the loss in value relating to the treadmill, argued counsel for Gilmore at the hearing on the motion for class certification.

In his reply memorandum of points and authorities in support of class certification, Gilmore described his own damages resulting from ownership of the treadmill, stating he was damaged as a result of his ownership and use of his Soft Strider [] treadmill. He discarded another treadmill of value which had served him well in order to use the Soft Strider [treadmill]. Although his Soft Strider [treadmill] was ultimately replaced, Sears refused his request that the valuable extended warranty applicable to the Soft Strider [treadmill] be transferred to the replacement unit. He incurred nearly $50,000.00 in medical expenses as a result of the treadmills ultimate failure. (Record citations omitted.)

Thus, Gilmores description of his own damages makes it clear that no element of his claimed damages is common with the damage he alleges was suffered by the members of the proposed class -- that is, being left with a worthless treadmill.

In the same memorandum of points and authorities, Gilmore also described Webers damages: She was caused to purchase a Soft Strider [] treadmill at a cost of approximately $1,300.00. [Gilmore] asserts that said purchase was valueless given the unsafe design of the treadmill. This assertion does not resolve the issue of whether Weber suffered compensable damages. Just like Gilmores claim, this assertion suffers from the fact that the treadmill that is allegedly worthless has been replaced by a treadmill of a different brand.

The facts support the trial courts conclusion because there is substantial doubt whether Gilmore and Weber suffered damage at all under the consumer protection causes of action that are the subject of this proposed class action. At the very least, the claims of Gilmore and Weber are not typical of the proposed class. Since differences in the actual existence of damages or in the manner of incurring damages are appropriate considerations in determining whether Gilmore and Weber are proper class representatives (Caro v. Procter & Gamble Co., supra, 18 Cal.App.4th at p. 665), we conclude the trial did not abuse its discretion in denying class certification based on the absence of a class representative with typical claims.^[4]

DISPOSITION

The order is affirmed.^[5]

NICHOLSON , J.

We concur:

DAVIS , Acting P.J.

BUTZ , J.

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^[1] No first amended complaint appears in the record on appeal.

^[2] The resolution of this case does not require a discussion of the elements of these statutory causes of action because, regardless of the specific elements of these causes of action, Gilmore did not provide an adequate class representative to prosecute the action on behalf of the class.

^[3] Gilmore asserts the trial courts order must be reversed because the court did not explain, on the record, the legal and factual basis for its conclusion that the claims of Gilmore and Weber are not typical of the proposed class. Gilmore bases this assertion on a case, Global Minerals & Metals Corp. v. Superior Court (2003) 113 Cal.App.4th 836, in which the court held that an order denying class certification based upon improper criteria or incorrect assumptions is reversible. (Id. at p. 851.) We reject this assertion because the case cited does not require the trial court to state its reasons -- its criteria and assumptions -- on the record, and we know of no such authority.

^[4] Defendants assert the claims of Gilmore and Weber are not typical of the class for three other reasons: (1) Gilmore
never saw or relied on any advertising alleged to be false,
(2) Gilmores definition of the proposed class includes more than one treadmill model, and (3) Gilmores claims are barred by the statute of limitations. We need not consider these assertions because we find the claims of the proposed class representatives were not typical based on the facts as discussed above.

^[5] Defendants request judicial notice of recent opinions of the California Court of Appeal and a federal district court in Louisiana. The request is granted. (Evid. Code,  451, 452, 453.) However, we find it unnecessary to rely on these cases and, therefore, have not asked for additional briefing concerning their effect.