Thompson v. Automobile Club of >Southern
California



















Filed 6/7/13 Thompson v. Automobile Club of Southern California CA4/3











>NOT TO BE PUBLISHED IN OFFICIAL REPORTS





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opinion has not been certified for publication or ordered published for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



FOURTH
APPELLATE DISTRICT



DIVISION THREE




>

STEPHEN TROY THOMPSON, Plaintiff and Appellant, v. AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA, Defendant and Respondent.

G046759 (Super. Ct. No. 30-2009-00285190) O P I N I O N

Appeal
from an order of the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Kim Garlin Dunning, Judge. Affirmed.

Caldwell
Leslie & Proctor, Robyn C. Crowther, Eric S. Pettit; Meiselman, Denlea,
Packman, Berg & Eberz, Jeffrey I. Carton, Michael A. Berg and Todd S.
Garber for Plaintiff and Appellant.

Manatt,
Phelps & Phillips, Phillip R. Kaplan, Benjamin G. Shatz, Adrianne E.
Marshack; John K. Beckley for Defendant and Respondent.

* * *

Plaintiff Stephen
Thompson sued the Automobile Club of Southern California (the Auto Club) in
this putative class action. He
challenges the Auto Club’s policies relating to renewal, specifically, its
practice of “backdating” late renewals to the member’s original expiration date
if the renewal occurs within 95 days. He
claims this practice results in late-renewing members receiving less than a
full year of services. The Auto Club
counters that the 95-day period is a “grace period” and that members are
generally permitted to continue receiving services, particularly during the
first 31 days. This practice, the Auto
Club further argues, prevents the member from incurring a $20 fee to start a
new membership.

Thompson
moved for class certification, and the trial court denied the motion. The court concluded, among other things, that
the proposed class was overbroad, lacked commonality, and that Thompson’s
claims and defenses were not typical of the class. Further, it ruled that a class action is not
a superior method of adjudication.
Thompson appeals the trial court’s decision, arguing the court’s
decision was unsupported by substantial evidence, contrary to established law,
and was premised on the trial court’s misunderstanding of the plaintiff’s
claims. The Auto Club argues the class
certification motion was properly denied for the reasons stated by the trial
court.

Based
on the deferential standard of review appropriate to a motion for class
certification, we find no error.
Contrary to Thompson’s arguments, the court’s decision reflects that it
understood the facts and used appropriate criteria for its decision. Therefore, there was no abuse of discretion,
and we affirm.

I

FACTS

A. Background

Defendant
the Auto Club is a regional affiliate of AAA, an association of automobile
clubs with more than 50 million members in the United States. The
Auto Club is a non-profit, mutual benefit corporation and has more than six
million members. Its services include
emergency roadside assistance, a travel agency, DMV transactions, and other
benefits.

The Auto
Club’s membership dues are billed and collected annually. Since 2005, when joining for the first time,
or when rejoining after a cancelled membership, members are generally charged a
$20 enrollment fee. Upon joining, the
member receives various documents, including a membership card showing the
member’s expiration date, and a copy of the Auto Club’s bylaws. Prior to expiration of membership each year,
the Auto Club mails the member several renewal notices, which vary depending on
the member’s level of service and billing plan.
Over 100 different versions of notices exist, and they are changed
periodically. The Auto Club also
communicates with members regarding renewals by phone.

How the
Auto Club handles membership renewals is the subject of this case. According to the Auto Club, members who fail
to timely renew a membership “enjoy a 95-day grace period from the expiration
date to renew.” Thus, if the member
renews at any point during the 95-day period, the Auto Club treats the renewal
as retroactive to the date of the expiration.
For example, if a member joins on January 1, 2011, the membership expires January
1, 2012. If the member renews at any time up until April 6,
2012, the renewal
dates back to January 1. After the 95th
day, the member’s file is closed, and any new membership is subject to the $20
new membership fee.

According
to the Auto Club, during the grace period, a delinquent member remains eligible
to receive services. All services are
available during the first 30 days after the failure to renew, and from the
31st to 95th day, whether services are provided is a matter of discretion on
the part of the Auto Club agent assisting the member. Exercise of that discretion depends upon
various factors, including the length of the membership, the exigency of the
circumstances, and the agent’s belief regarding the member’s intent to renew. If a delinquent member receives roadside
assistance and subsequently renews, the service call is treated as one that
occurred during the membership period.
If the member does not renew, any such services are billed.

Plaintiff
Stephen Thompson began his current membership with the Auto Club in December
2002. His membership expiration date
since that time has been December 6 of each year. Between 2005 and 2008, Thompson renewed his
membership late, although he intended to renew each year.

The
complaint in this action discusses only the renewals for the years 2006 and
2007. There was, however, evidence in
the record regarding his 2008 renewal.
Shortly after his membership expired in 2008, he received a mailed
notice from the Auto Club informing him that his membership had not been renewed. The notice stated: “We will still continue to provide you with
Roadside Assistance service for 30 days after your expiration date. However, if we do not receive your payment,
we will be required to bill you for an amount that covers our cost of providing
you the service during that 30-day period.
If you renew now, all Roadside Assistance calls during the unpaid period
will be counted toward your four free calls.”


In
early 2009, Thompson renewed his membership by phone. At the end of the call, he specifically asked
the representative if his membership started “right now and goes for 12 months
forward.” Thompson was informed that the
membership could only be started from that date if he paid a $20 new membership
fee, otherwise it went back to the date of the expiration. Thompson felt that was not fair, but he chose
not to begin a new membership.



>B. The Lawsuit

In July
2009, Thompson filed the instant lawsuit as a purported class action, alleging
claims for breach of contract, unjust enrichment, and violations of the unfair
competition law (Bus. & Prof. Code, § 17200 et seq.) (the UCL) and the
Consumer Legal Remedies Act (Civ. Code, § 1750 et seq.) (the CLRA). He also sought injunctive relief. After a demurrer was sustained, the
injunctive relief cause of action was dropped in the amended complaint. In sum, Thompson alleged that the Auto Club’s
renewal policy was depriving late-renewing members of receiving 12 months of
benefits, that members were not informed of the policy, and that late-renewing
members were being monetarily damaged.

Discovery
proceeded, and in November 2011, Thompson moved for class certification. He proposed to define the class as: “All persons who, at any time on or after
July 17, 2005, purchased and paid for a new term of [Auto Club] membership
after their prior membership term expired, and whose new membership term was
deemed by [Auto Club] to have begun on or about the prior expiration
date.” The Auto Club filed its own motion
to deny certification. The parties filed
their respective oppositions and replies in due course. Both sides also submitted evidence, which we
will discuss in more detail below, to support their respective claims. Evidentiary objections were also filed.

After a hearing, the
court denied the motion and directed the Auto Club to prepare an order. Thompson objected to the Auto Club’s proposed
order and submitted his own, but the court signed the Auto Club’s order. The court concluded that Thompson had failed
to present sufficient evidence to demonstrate a well-defined community of
interest. “Plaintiff has failed to support his allegation that the Auto Club
routinely denies members who renew late a full twelve months of benefits by
‘backdating’ membership renewals, or that this issue could be litigated on a
class-wide basis. By contrast, the Auto
Club has demonstrated that individual issues would predominate in determining
the claims alleged in this action, that the proposed class is overbroad, that
Plaintiff is not typical of the class he seeks to represent, and that a class
action would not be a superior method of litigating these claims.” Given the court’s ruling, it was unnecessary
to decide the Auto Club’s motion to deny certification, but the court had
considered all the evidence and briefs on each motion. The court also overruled all evidentiary
objections. Thompson now appeals the
court’s order.

II

DISCUSSION

>A.
Standard of Review

With respect to the factual issues surrounding class certification, we
afford the trial court “‘great discretion in granting or denying
certification.’” (In re Tobacco II Cases (2009) 46 Cal.4th 298, 311.) The trial court’s ruling will be reversed
only if a “‘manifest abuse of discretion’” is present. (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1022.) “‘A certification order generally will
not be disturbed unless (1) it is unsupported by href="http://www.fearnotlaw.com/">substantial evidence, (2) it rests on
improper criteria, or (3) it rests on erroneous legal assumptions. [Citations.]’
[Citations.]” (>Ibid.)


“We must ‘[p]resum[e] in favor of the certification order
. . . the existence of every fact the trial court could
reasonably deduce from the record . . . .’ [Citation.]”
(Brinker
Restaurant Corp. v. Superior Court, supra, 53 Cal.4th at p. 1022.) “‘Where a certification order turns on
inferences to be drawn from the facts, “‘the reviewing court has no authority
to substitute its decision for that of the trial court.’”’ [Citation.]”
(Davis-Miller v. Automobile Club
of Southern California (2011) 201 Cal.App.4th 106, 120.) “[B]ecause group action also has the
potential to create injustice, trial courts are required to ‘“carefully weigh
respective benefits and burdens and to allow maintenance of the class action
only where substantial benefits accrue both to litigants and the courts.”’ [Citations.]”
(Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.)

We must also examine the trial court’s stated reasons for denying
class certification. (Linder v. Thrifty
Oil Co., supra, 23
Cal.4th at p. 436.) “Ordinarily,
appellate review is not concerned with the trial court’s reasoning but only
with whether the result was correct or incorrect. [Citation.]
But on appeal from the denial of class certification, we review the
reasons given by the trial court for denial of class certification, and ignore
any unexpressed grounds that might support denial. [Citation.]
We may not reverse, however, simply because some of the court’s
reasoning was faulty, so long as any of the stated reasons are
sufficient to justify the order.
[Citation.]” (Kaldenbach v.
Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 843-844.) Any valid, pertinent reason will be
sufficient to uphold the trial court’s order.
(Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th
319, 326-327.)

It
is worth highlighting the proper role of the appellate court because Thompson’s
briefs rely heavily on federal trial court rulings, including several that
involve similar cases against other AAA affiliates. These mostly unpublished and out-of-state
orders obviously have no binding precedential effect on this court. Further, their ability to provide useful
guidancehref="#_ftn1" name="_ftnref1" title="">[1]
is somewhat limited because we do not stand in the trial court’s place. Our review is “narrowly circumscribed.” (Brinker Restaurant Corp. v. Superior Court,
supra, 53 Cal.4th 1004 at p.
1022.) “Our task on appeal is not
to determine in the first instance whether the requested class is appropriate
but rather whether the trial court has abused its discretion in denying
certification.” (Osborne v. Subaru of America, Inc. (1988) 198 Cal.App.3d 646,
654.)

Thus,
each of the trial court decisions Thompson cites may be correct, and if we were
reviewing them, they might well be affirmed.
But it does not necessarily follow that because the trial court in this
case viewed the facts or legal issues differently than another trial court, an
abuse of discretion occurred. The “great
discretion” (In re Tobacco II Cases,> supra, 46 Cal.4th at p. 311) trial
courts are accorded in the matter of class certification almost guarantees that
such differences of opinion between trial courts will occur and are entirely
permissible. The questions before us are
limited to whether the decision was supported by substantial evidence, and
whether the decision was based on improper criteria or erroneous legal
assumptions. (Brinker Restaurant Corp. v. Superior
Court, supra, 53
Cal.4th 1004 at p. 1022.)

>B. Relevant Statutory Frameworks

Thompson’s
complaint alleges causes of action for breach of contract, unjust enrichment,
and violations of the UCL and CLRA.
While the first three claims are analyzed under the same statutory
framework for determining whether a class action is appropriate, the CLRA sets
forth a slightly different standard.

Code of
Civil Procedure section 382 sets forth the general requirements for
certifying class actions. Thus, it
applies to Thompson’s common law claims, and also to class actions under the
UCL. (In re Tobacco II Cases, supra, 46 Cal.4th at pp.
312-313.) A class action is authorized
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 class
certification must establish the existence of both an ascertainable class and a
well-defined community of interest among the class members. (Washington
Mutual Bank v. Superior Court (2001) 24 Cal.4th 906, 913; >Linder v. Thrifty Oil Co.,> supra, 23 Cal.4th at p. 435; Richmond
v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470.) The community of interest requirement
involves 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.” (>Richmond v. Dart Industries, Inc.,> supra, 29 Cal.3d at p. 470.) An additional criteria of the “superiority”
of the class action procedure is also sometimes considered. (Sav-On Drug Stores, Inc. v. Superior
Court, supra, 34
Cal.4th at p. 332.)

The CLRA enables a consumer to
bring a class action on behalf of himself or herself and other consumers
similarly situated if the consumer has suffered “any damage” from the use of any
of 23 enumerated acts or practices.
(Civ. Code., §§ 1780, subd. (a), 1781, subd. (a).) The CLRA has its own class action
requirements pursuant to Civil Code section 1781, subdivision (b): 1) the impracticability of bringing all
members of the class before the court; (2) questions of law or fact common to
the class are substantially similar and predominate over the questions
affecting the individual members; (3) the claims of the class representative
are typical of the class; (4) the class representatives will fairly and
adequately protect the interests of the class.
(Civ. Code, § 1781, subd. (b).)

The
statutory requirements are substantial similar.href="#_ftn2" name="_ftnref2" title="">[2] Each requires the potential class to be
sufficiently numerous as to make individual adjudication impractical, although
the CLRA does not explicitly require an ascertainable class. Code of Civil Procedure section 382’s
“well-defined community of interest” requirements are, for all practical
purposes, the same as the CLRA’s final three requirements: the predominance of common issues of law or
fact, the typicality of the class representative’s claims, and the adequacy of
the class representative. The questions
of a sufficiently large class and the representative’s adequacy are not at
issue here. We therefore analyze the
remaining requirements of the statutes simultaneously, with the exception of
the “superiority” question, which applies only under Code of Civil Procedure
section 382.



C. Ascertainable Class

Whether a class is “ascertainable” within
the meaning of section 382 “is determined by examining (1) the class
definition, (2) the size of the class, and (3) the means available for
identifying the class members.
[Citations.]” (Reyes v. Board
of Supervisors (1987) 196 Cal.App.3d 1263, 1271.) “‘“Class members are ‘ascertainable’ where
they may be readily identified without unreasonable expense or time by
reference to official records.
[Citation.]”’ [Citation.] In determining whether a class is
ascertainable, the trial court examines the class definition, the size of the
class and the means of identifying class members. [Citation.]”
(Lee v. Dynamex, Inc.
(2008) 166 Cal.App.4th 1325, 1334.)

Ascertainability
also addresses the breadth of the class.
“Courts have recognized that ‘class
certification can be denied for lack of ascertainability when the proposed
definition is overbroad and the plaintiff offers no means by which only those
class members who have claims can be identified from those who should not be
included in the class.’ [Citation.]” (Sevidal
v. Target Corp. (2010) 189 Cal.App.4th 905, 921.)

The
court’s order denying certification noted the following with respect to the
ascertainability of the class: “The
putative class is not ascertainable on any of Plaintiff’s causes of action. The Auto Club has presented evidence
demonstrating that the proposed class is substantially overbroad in that it
contains Auto Club members who would not be entitled to relief from the Auto
Club on any of Plaintiff’s causes of action because the members (i) received
services during their delinquency . . . (ii) had the Auto Club’s renewal policy
explicitly disclosed to them . . . and/or (iii) were not injured by the Auto
Club’s renewal practices because they were economically better off under the
Auto Club’s system of renewal than they would have been if they had begun new
memberships on the date of payment and paid the $20 new membership fee
. . . .” The court cited
to evidence on each point.

Thompson
argues the court’s ruling on this point is flawed because it misapprehends the
nature of his claims and “flies in the face of the evidence and violates
established law, which holds that a corporate defendant’s shoddy record-keeping
does not prevent class certification.”
In Thompson’s view, determining who the class members are is simple — he
believes that any member who renewed after the prior year’s expiration date
should be a member, regardless of whether the member received services during
the delinquency period, received a disclosure regarding how the Auto Club
handled renewals, or paid less than they would have by beginning a new
membership and incurring the $20 new membership fee. Such members are ascertainable and relevant
information was produced by the Auto Club.
It is unclear, however, under what theory many of these individuals
would be eligible to recover.

With
respect to breach of contract, the amended complaint alleges the Auto Club
“breached the contract . . . by providing Plaintiff with less than 12 months of
membership benefits . . . in exchange for his payment of the full annual
membership fee.” The complaint also
alleges damages from this breach.
Thompson also alleges that providing less than 12 months of membership
benefits and charging membership fees for time periods where no membership
privileges are provided, as well as failing to disclose its renewal practices,
is unlawful, unfair or fraudulent under the UCL. Essentially the same factual allegations are
made regarding the CLRA and unjust enrichment causes of action.

If
putative class members either received benefits during the delinquency period,
were not damaged as a result of the renewal policy, or renewed after the Auto
Club’s membership policy was disclosed, their ability to recover is called into
serious question. If class members
received benefits during the delinquency period or they were told about the
Auto Club’s renewal practices, they cannot maintain a cause of action under the
UCL. If they were not economically damaged, they cannot recover on a breach
of contract, under the CLRA, or through an unjust enrichment claim. (See
Civ. Code., § 1780, subd. (a); Careau
& Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d
1371, 1388; Lectrodryer v. SeoulBank (2000) 77 Cal.App.4th 723, 726.)

There was
substantial evidence that such conditions apply to a significant part of the
putative class. The Auto Club produced a
spreadsheet of over 6,000 pages of records showing members who received
benefits during the delinquency period during the past year. Evidence was also presented that between 67
and 80 percent of delinquent members renew during the first 30 days after
expiration. For a member to incur
damage, the supposed lost value of their membership would have to exceed $20,
the amount the member would be required to begin a new membership rather than a
renewal. The average membership renewal,
however, is $87. Thus, the monetary
value of an average Auto Club membership (87 divided by 365) is 24 cents per
day. Only individuals paying the average
membership fee who renewed after the 84th day of the 95-day delinquency period
would have damages exceeding $20. To
exceed $20 within the 30-day period during which most members renewed, their
membership renewal would have been $243 or more. Less than 10 percent of Auto Club members pay
such fees.

With
respect to disclosure, the Auto Club also produced evidence that it trains
customer service agents to discuss renewal practices when appropriate. There was also evidence, in the form of
customer declarations, that agents actually do so. Agents do not generally make notes on the
customer’s file when calls are received regarding routine issues. Further, Thompson himself testified that during
his 2009 renewal call, the agent discussed the Auto Club’s renewal practices
with him. Thus, it was reasonable for
the court to infer that at least some percentage of the putative class knew
about the renewal practice.

These
facts present significant overbreadth and ascertainability problems. It is clear from the evidence that Thompson’s
proposed class is not only slightly overinclusive, but substantially so. The proposed class includes everyone who
renewed late after July 17, 2005, regardless of any other facts. Given that a significant number of these
people would have no right to recover, the class is overbroad.

Further,
there is no evidence that the Auto Club can ascertain which putative class
members to whom the following does not apply:
1) they received no services during their delinquency periods, 2) they
renewed on a date where renewing their membership was more expensive, on a pro
rata basis, than paying the $20 new membership fee, and 3) they were unaware of
the renewal policy.

Thompson
claims this amounts to “shoddy record-keeping” but he points to no authority
that would require the Auto Club to keep such records. Thus, his claim that the trial court applied
the wrong legal standard on this point is without merit. The evidence demonstrates the trial court
properly exercised its discretion when it concluded the proposed class was not
ascertainable.



D. Predominance of Common
Questions of Law and Fact

“The
‘ultimate question’ the element of predominance presents is whether ‘the issues
which may be jointly tried, when compared with those requiring separate adjudication,
are so numerous or substantial that the maintenance of a class action would be
advantageous to the judicial process and to the litigants.’ [Citations.]
The answer hinges on ‘whether the theory of recovery advanced by the
proponents of certification is, as an analytical matter, likely to prove
amenable to class treatment.’
[Citation.] A court must examine
the allegations of the complaint and supporting declarations [citation] and
consider whether the legal and factual issues they present are such that their
resolution in a single class proceeding would be both desirable and
feasible. ‘As a general rule if the
defendant’s liability can be determined by facts common to all members of the
class, a class will be certified even if the members must individually prove
their damages.’ [Citations.] (Brinker Restaurant Corp. v. Superior Court,
supra, 53 Cal.4th at
pp. 1021-1022, fn.omitted.)
“Predominance is a factual question; accordingly, the trial court’s
finding that common issues predominate generally is reviewed for substantial
evidence. [Citation.]” (Id. at p. 1022.)

The
trial court found that individual issues predominate: “(A)
Individual issues predominate regarding whether a putative class member is
entitled to recover on any of Plaintiff’s causes of action. This is because, as stated above, there were
members who suffered no injury because they (i) received services during their
delinquency, (ii) had the Auto Club’s renewal policy explicitly disclosed to
them, and/or (iii) were economically better off under the Auto Club’s system of
renewal than they would have been if they had begun new memberships on the date
of payment and paid the $20 new enrollment fee.
Determining whether a member falls into any of these categories and
would therefore not be entitled to recover from the Auto Club on any of
Plaintiff's theories of liability, can only be done on a case-by-case
basis.” The court went on to explain
that essentially the same reasons applied to each cause of action.

These are essentially
the same issues that were highlighted during our ascertainability discussion
above, but they are equally important here.
Thompson argues that because the same contract terms and renewal policy
applied to all members, common issues predominate. He also informs us, citing an array of
district court decisions, that an “overwhelming” majority of federal court
cases have certified classes based on standard contracts. Thus, he asserts class treatment was appropriate
for the breach of contract claim.

Thompson argues that
determining the issues of breach and damages can be decided on a classwide
basis, but accepting that argument depends on accepting his theory of the case
— that any expiration less than 365
days after a renewal was a breach of contract and necessarily caused
damages. But the facts appear to belie
this. There was evidence presented to
the trial court on a number of relevant issues, including the availability of
services to delinquent members and the use of those services. There was also evidence, as we discussed
above, that many members would have paid more if they had spent the additional
$20 to start a new membership from the date of payment and issues regarding
whether the renewal policy was disclosed.
These are not merely issues relating to the measure of damages, but as
to whether any possible recovery exists.
Thus, the mere existence of a form contract is insufficient to determine
that common issues predominate when the questions of breach and damage are
essentially individual. (>Wilens v. TD Waterhouse Group, Inc.
(2003) 120 Cal.App.4th 746, 756.)

Such individual
assessments would clearly be required here, and would undermine any benefits of
class treatment. Proof with respect to
each individual class member would be needed to determine what benefits, if
any, were received during the delinquency period, whether the renewal practice
saved each class member money over paying the $20 new member fee, and whether
the member was aware of the renewal policy.
The same issues apply to all of Thompson’s claims, including whether the
renewal practices were unfair or fraudulent under the UCL, caused damage under
the CLRA,href="#_ftn3" name="_ftnref3"
title="">[3] or resulted in the Auto Club’s unjust
enrichment. Thus, we find the trial
court had substantial evidence from which it could conclude that individual
issues predominated over common ones.



E. Typicality of the Claims

Part of the href="http://www.mcmillanlaw.com/">“community of interest” requirement for
class certification is a showing that the plaintiff’s claims are typical of the
class. (Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096,
1104.) The trial court held: “Plaintiff
is not typical of the class he purports to represent. The Auto Club has demonstrated that Plaintiff
is not similarly situated to putative class members because the Auto Club’s
renewal practice was explicitly disclosed to him and he elected to renew his
membership pursuant to the practice rather than begin a new membership on his
payment date. . . . He is also not
typical of the purported class because Plaintiff’s decision to renew his
membership after being explicitly told about the Auto Club’s renewal practice
(i.e. not to alter his position and renew as he had done on three prior
occasions when he claims he was unaware of the practice) demonstrates that this
information was not material to him, as Plaintiff alleges it would be to
the reasonable class member.”

This
issue does not seem to be as important here as the questions of
ascertainability and predominance, but in any event, Thompson has failed to
show an abuse of discretion. He focuses
on his 2005 (for the 2006 year) and 2007 renewals, for which he alleges he
received no disclosure, selectively ignoring the year he did receive such a
disclosure and chose to proceed anyway.
But as the trial court noted, this seriously calls in doubt whether the
disclosure was material or would have been material in the earlier years. This is substantial evidence from which the
court could conclude Thompson’s claims were not typical, and we find no abuse
of discretion.



F. Superiority of the Class Action Procedure

The
superiority criterion requires the moving party to establish “‘by a
preponderance of the evidence that the class action
proceeding is superior to alternate means for a fair and efficient
adjudication of the litigation.’” (Sav-On
Drug Stores, Inc. v. Superior Court,
supra, 34 Cal.4th at p. 332, italics added.) The trial court concluded that “A class action is not a superior means to
adjudicate this case. The Auto Club has
demonstrated that individual inquiries would predominate on the question of
whether the renewal practice was adequately disclosed to each class member;
whether each class member sought and received service during the class period; whether individual class
members who did not seek
services during the class period were nonetheless aware that services were
available; and whether individual class members suffered any injury as result
of the Auto Club’s renewal policy. The
predominance of these individual issues makes the class action mechanism
unmanageable in this case. Although the
size of each individual’s claim is small, the burdens imposed in adjudicating
those claims on a class basis do not support the finding that a class action is
warranted here.”

We
need not belabor this point — even if Thompson could establish the superiority
of the class action method, he failed to meet the statutory requirements for
certification under Code of Civil Procedure section 382 and the CLRA. Superiority alone is insufficient, and the
court therefore properly exercised its discretion when it denied class
certification.









III

DISPOSITION

The
order is affirmed. The Auto Club is
entitled to its costs on appeal.







MOORE,
J.



WE CONCUR:







O’LEARY, P. J.







IKOLA, J.