Griffin v. Fleetwood Enterprises
Filed 5/11/06 Griffin v. Fleetwood Enterprises CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SEAN GRIFFIN et al., Plaintiffs and Appellants, v. FLEETWOOD ENTERPRISES, INC. et al., Defendants and Respondents. | D046431 (Super. Ct. No. GIC830289) |
APPEAL from an order of the Superior Court of San Diego County, John S. Meyer, Judge. Affirmed.
In May 2004 plaintiffs Sean Griffin and others filed this action against defendant Fleetwood Folding Trailers, Inc. (Fleetwood) as a proposed class action alleging folding trailers equipped with an ABS roof (the trailer) manufactured by Fleetwood were defective and had been marketed with false and misleading information, and trailer warranty claims were improperly handled. The trailers were manufactured over a several-year period and sold in 49 states. Plaintiffs' action, seeking to pursue claims on behalf of a nationwide class of all buyers of the trailer, and a subclass composed of California purchasers who made a warranty claim and were charged shipping and handling for replacement components, alleged Fleetwood and its parent, defendant Fleetwood Enterprises, Inc. (FEI), were liable for unfair business practices under California's unfair competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.), false advertising (Bus. & Prof. Code, § 17500 et seq.), and violation of the Consumers Legal Remedies Act (CLRA) (Civ. Code, § 1750 et seq.), and of the Song Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.).
In March 2005, three months before the scheduled trial, plaintiffs moved for an order certifying the action as a class action. Although the trial court's initial tentative ruling was to deny certification because the proposed class representatives did not have claims typical of the class and the subclass, it ultimately denied (after two oral argument hearings and supplemental briefing) certification because of the absence of typicality and because of concerns with plaintiffs' proposed class definition.[1]
Plaintiffs' opening brief, arguing from the premise that the trial court was satisfied the class was ascertainable and possessed a well-defined community of interest, asserts the order must be reversed because the proposed class representatives had claims typical of the class or, alternatively, representatives whose claims had the requisite typicality could be substituted or added. Plaintiffs' opening brief does not address the court's concerns with the proposed class definition. Defendants, arguing from the premise that the court denied certification in part because the class as defined did not possess a sufficient community of interest to warrant class action treatment, does not directly evaluate the typicality of representation issue but instead argues the court did not abuse its discretion by concluding the class as defined did not have common questions of fact and law that predominated over individualized issues.
I
FACTUAL BACKGROUND
A. The Defendants
The trailer is manufactured by Fleetwood, a Delaware corporation with its principal place of business and headquarters in Pennsylvania. Fleetwood maintains its own purchasing, engineering, manufacturing, customer service and marketing departments. Fleetwood designed, manufactured and sold the trailer, its marketing department generated the advertising concepts for the trailer, and it paid for the advertising from its own revenues. Fleetwood also created, administered and funded the warranty policies.
FEI owns 100 percent of the stock of Fleetwood. FEI is a Delaware corporation with its principal place of business and headquarters in California. FEI was involved in marketing the trailer and was peripherally involved in administering warranty claims.
B. The Folding Trailer
In late 1995 Fleetwood began marketing the trailer with its new ABS roof. Fleetwood touted the ABS roof as providing a rigid, durable and seamless roof, which would never leak, would shrink and expand with changing temperatures and had a " memory," which allowed it to regain its original shape if temperature changes caused the roof to bow. However, Fleetwood began receiving sporadic customer complaints about the roofs shortly after the trailer entered the retail market. Customers complained the roofs bowed and sagged, had bubbles or cracks, and in some instances the seal between the roof and the trailer body separated, causing leaks.
Fleetwood initially attempted to solve the problem of sagging roofs by designing and installing support braces, but the braces were not always successful in preventing sagging. The roofs also continued having cosmetic problems. At some point, Fleetwood modified the design of the ABS roof to provide a more domed top and a stronger, sag-resistant shape. Additionally, in approximately 2000, Fleetwood outsourced manufacture of the roof to Advance USA, a third party vendor; Fleetwood learned its manufacturing facility was unable to properly employ the ABS technology for roofs because Fleetwood's facility did not have control over environmental factors, including humidity and temperature. However, Advance USA's roofs were inconsistent and some of its roofs were also subject to defects. Fleetwood also experienced some problems with the front and rear panels and ABS components, some attributable to design issues, some attributable to assembly line problems, and some attributable to the quality of the raw materials obtained from vendors.
C. The Warranty and Claims Handling
Fleetwood provided a written limited lifetime warranty on the ABS roof against functional defects in material and workmanship. In the first year of the warranty, all costs for parts, labor and freight were covered; for each year thereafter, only parts and labor were covered. The warranty extended to only the original purchaser of the trailer.
The ABS roof-related problems created significant expenses for Fleetwood because of warranty claims. Approximately 11 percent of the ABS tops were the subject of warranty claims.[2] The costs of satisfying these claims represented a significant percentage of the total amounts spent by Fleetwood on warranty claims. Fleetwood did not charge most of its customers for the shipping costs associated with replacement roofs and parts, even for some customers whose warranty claims were made after the first year. It did charge freight costs in approximately 18 percent of the cases. By mid-2003, however, Fleetwood had decided to adhere to the terms of the warranty and required customers to pay freight for the replacement parts after the one-year warranty had expired.[3]
D. The Misrepresentations
Fleetwood continued to equip the trailer with ABS roofs until Advance USA filed bankruptcy one month into Fleetwood's 2003 model year, which required Fleetwood to switch to an aluminum top. Although Fleetwood was aware that some of its ABS roofs (as well as the ABS roof manufactured by Advance USA) had the potential to sway, bow or develop cosmetic problems, it did not publish literature to the public describing these issues. Instead, throughout the time it equipped the trailer with ABS roofs, it continued to advertise the roof as durable and having a " memory" that would return the roof to its original shape.
II
PROCEDURAL HISTORY
A. The Lawsuit
In May 2004 plaintiffs filed this action as a class action, identifying Messrs. Griffin, Thomas and Kinninger as representative plaintiffs, and defining the proposed class as all buyers throughout the nation who purchased a trailer with an ABS roof, and defining as a proposed subclass all buyers who purchased in California a trailer with an ABS roof, made warranty claims and were charged shipping and handling for the replacement roof.[4] Plaintiffs pleaded claims for unfair business practices and false advertising under the UCL, violation of the CLRA, and violation of the Song Beverly Consumer Warranty Act.
B. The Certification Motion
The Initial Motion
In late February 2005, less than three months before trial was scheduled to begin, plaintiffs filed their motion for class certification. Plaintiffs' motion, proposing a refined class definition, sought to define the class as including (1) all persons who currently own a trailer with an ABS roof or (2) persons who formerly owned a trailer with an ABS roof and paid money to have the ABS roof or panels replaced. Plaintiffs retained the defined proposed subclass of all buyers who purchased in California a trailer with an ABS roof, made warranty claims and were charged shipping and handling for the replacement roof or panels. Plaintiffs asserted that, as to their UCL and CLRA claims,[5] the class members shared common questions of law and fact, and these common questions predominated, because (1) ABS roofs were so inherently defective they were substantially certain to fail, and Fleetwood, aware of this defective design, concealed the problem and affirmatively misrepresented the roofs; (2) Fleetwood misrepresented or concealed the coverage provided by the warranty; and (3) Fleetwood implemented a warranty program that treated like purchasers in a disparate manner. Plaintiffs also asserted application of California law to their proposed nationwide class was appropriate under choice of law principles because FEI is headquartered in California, FEI controlled and profited from the operations of its wholly owned subsidiary (Fleetwood), and FEI marketed the trailers under the its banner.
Defendants opposed the motion, asserting plaintiffs had not established that common issues predominated for the defined classes.[6] Defendants noted that both the design of and manufacturing processes for ABS roofs and panels underwent numerous permutations during the class period.[7] Defendants accordingly argued each batch of the trailer manufactured between 1996 and 2003 would have to be individually evaluated to assess whether the ABS-equipped trailer sold to a particular class member was so inherently defective that it was substantially certain to fail, and whether Fleetwood was aware that this specific iteration of the ABS roof remained inherently defective and nevertheless concealed the problem or affirmatively misrepresented the attributes of the roof. Defendants additionally argued individualized assessments of how warranty claims were handled with respect to each class member, and whether statutes of limitations or other potential defenses might bar some claims, reinforced the conclusion that common issues did not predominate for the defined classes.[8] Defendants also argued it would not be appropriate to apply California law to the proposed nationwide class, because the trailer was designed, manufactured and sold by a Pennsylvania-based entity separate and distinct from FEI. This fact would again divide the proposed class by requiring the application of the laws of numerous jurisdictions. Finally, defendants asserted the proposed class representatives did not possess claims typical of the defined class because none were charged " shipping and handling" (as alleged by the subclass), only some had made warranty claims, and at least one proposed class representative had a roof replaced at no charge and had not had any problems with the replacement roof in the " three plus years" since it was replaced.
The Initial Ruling
At the March 25, 2005 hearing on the certification motion, the court's tentative ruling was to deny class certification. The court, explaining its tentative ruling, expressed doubt that the proposed class representatives had claims typical of the defined class and the 11th-hour motion for certification made it difficult to cure this issue. However, during the colloquy at the hearing on the motion, the court expressed increasing doubts whether the class as defined was appropriate for certification because of the numerous non-common questions within the defined class. For example, plaintiffs proposed a nationwide class composed of two subsets: (1) all persons who currently own a trailer with an ABS roof and (2) all persons who formerly owned a trailer with an ABS roof and paid money to have the ABS roof or panels replaced. Discussing the first category, the court noted that class included both persons whose roofs did not fail and persons who had their roofs replaced. The latter subgroup was further subdivided into (1) those who did and those who did not pay anything associated with the repairs, (2) those satisfied with the new roof and those who were not, and (3) those whose roofs were replaced with another ABS roof and those who received an aluminum roof. The court also questioned whether there were subdivisions within the class in connection with the fraud claim because there were allegedly some members of the class to whom disclosures about the ABS product was made.[9] The court also noted that another allegation apparently created yet another (and possibly new) subclass, for whom there was no proposed class representative, consisting of persons who made warranty claims and were charged exorbitant freight charges.
The court, after stating that " it seems that you certainly can't proceed with the class you've proposed with the plaintiffs you have . . . [I]t is a little bit difficult to really get a handle on because we've got a wide spectrum of classes and subclasses," agreed to consider additional briefing to see if plaintiffs " can come up with a class that you think is realistic" and " if you can propose a class that would work, I will certainly consider it." The court, after noting plaintiffs might consider to abandon some issues or to proceed with either a nationwide or a California class, reiterated, " I just want to make sure that we've got an appropriate class. And subclasses. And as prepared . . . I just don't think it's going to work."
The Revised Motion
Plaintiffs filed supplemental briefing that proposed as the new class definition all persons who purchased a trailer with an ABS roof and who paid money to repair or replace the ABS roof or panels. Plaintiffs also proposed to retain Mr. Kinninger as a class representative but to substitute Messrs. Lee and Lutz in place of Messrs. Griffin and Thomas as class representatives.
Defendants opposed certification of the newly proposed class and class representatives, arguing the newly proposed class and the newly proposed representatives did not cure the defects, but instead raised myriad new problems in both the commonality and typicality criteria.[10] Moreover, defendants argued that changing both the representatives of the class and the basic class definition less than two months before trial should be rejected as untimely.
At an April 15, 2005 hearing on plaintiffs' motion to compel responses to discovery, defendants pointed out the timing and extent of discovery would remain undefined until the court ruled on the certification motion. The court, noting it had reviewed the supplemental briefs, opined " there's still some problems with the new potential class." [11] The court decided to confirm the ruling denying certification, stating, " I've been trying to keep this thing afloat [b]ut it's really, I think it's doomed to failure," but advised plaintiffs that " if you want to revisit it, let me know."
The Final Ruling
Plaintiffs submitted a third letter brief to respond to the court's continued concerns about the proposed class and class representatives. However, plaintiffs merely stated they believed the proposed class definitions and proposed class representatives were appropriate,[12] and they had met their burden to establish a class should be certified, and therefore submitted the issue on the existing briefing.
The court then issued its final ruling denying certification, stating " [t]he Court is not persuaded that the proposed class definition resolves the previously articulated concerns of the Court, nor that the putative class representatives have claims typical of the proposed class."
II
ANALYSIS
A. Class Action Standards
Code of Civil Procedure section 382 authorizes class actions in California 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 burden is on the party seeking certification to establish the existence of both an ascertainable class and a well-defined community of interest among the class members. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.) To establish the requisite community of interest, the proponent of certification must show there are questions of law or fact common to the proposed class (the " commonality" criteria) and such questions predominate over the questions affecting individual members (the " predominance" criteria). (See Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470.) The predominance criteria means " each member must not be required to individually litigate numerous and substantial questions to determine his [or her] right to recover following the class judgment; and the issues which may be jointly tried, when compared with those requiring separate adjudication, must be sufficiently numerous and substantial to make the class action advantageous to the judicial process and to the litigants." (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 460.) When the proposed class action will not provide substantial benefits both to the courts and the litigants, it is proper to deny certification. (Linder v. Thrifty Oil Co., supra, 23 Cal.4th at p. 435.)
In addition to showing predominance, the proponent has the burden to show the proposed class is ascertainable. " Whether a class is ascertainable is determined by examining (1) the class definition, (2) the size of the class, and (3) the means available for identifying class members. [Citations.]" (Reyes v. Board of Supervisors (1987) 196 Cal.App.3d 1263, 1271.) Ascertainability, a separate criterion required " to give notice to putative class members as to whom the judgment in the action will be res judicata" (Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal.App.4th 908, 914), is best implemented by " defining the class in terms of objective characteristics and common transactional facts making the ultimate identification of class members possible when that identification becomes necessary." (Id. at p. 915.) However, the ascertainability of members of the class recedes as the right of each individual to recover becomes increasingly dependent on a separate set of facts applicable only to him or her. (Cf. Vasquez v. Superior Court (1971) 4 Cal.3d 800, 809.) Although a proponent at the class certification stage is not required to identify individual class members (Stephens v. Montgomery Ward (1987) 193 Cal.App.3d 411, 419), demonstrate the merits of their claims (Linder v. Thrifty Oil Co., supra, 23 Cal.4th at pp. 440-441), show each class member has been injured (Hicks, at p. 914), or identify a form of notice (Linder, at p. 444), the court may nevertheless " [consider] the totality of the evidence in making [the] determination" of whether a plaintiff has presented substantial evidence of the class action requisites (Quacchia v. DaimlerChrysler Corp. (2004) 122 Cal.App.4th 1442, 1448), including whether the proposed class definition offers an objective means of identification of a manageable class that will be bound by the results of the litigation.
Although the court did not explicitly refer to lack of ascertainability when it denied certification, its reference to the continued problems with the class definition (even after plaintiffs tried to refine the definition) may have reflected agreement with defendants' concerns over how to identify and notify those secondary buyers who would have been incorporated into the class under plaintiffs' class definition (see fn. 10, ante).
B. Standard of Appellate Review
" 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 [class] certification" (Linder v. Thrifty Oil Co., supra, 23 Cal.4th at p. 435), and " '[a]ny valid pertinent reason stated will be sufficient to uphold the order' " (id. at p. 436), as long as the stated reasons are supported by the evidence (cf. Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 328) or by any properly implied findings. (Massachusetts Mutual Life Ins. Co. v. Superior Court (2002) 97 Cal.App.4th 1282, 1287-1288.)
However, " an order based upon improper criteria or incorrect assumptions calls for reversal ' " even though there may be substantial evidence to support the court's order." ' " (Linder v. Thrifty Oil Co., supra, 23 Cal.4th at p. 436.) Accordingly, we examine the stated reasons for the order to determine whether the court relied on improper criteria to deny certification. (Ibid.)
C. The Trial Court Did Not Abuse Its Discretion By Denying Certification
The trial court denied certification because plaintiffs' efforts to refine the class did not persuade the court " that the proposed class definition resolves the previously articulated concerns of the Court, nor that the putative class representatives have claims typical of the proposed class." Among the court's " previously articulated concerns" were that plaintiffs' class encompassed " a wide spectrum of classes and subclasses" because the numerous non-common questions within the defined class splintered the defined class into a " wide spectrum" of subgroups. We must evaluate whether the trial court abused its discretion in concluding, considering plaintiffs' proposed class, the non-common questions made it neither efficient nor practical to permit group action.[13]
We conclude the trial court, by finding the proposed class definition did not warrant certification, relied on proper criteria to deny class certification. When evaluating whether to permit an action to proceed as a class action under the community of interest element, it is not sufficient that there are some questions of law or fact common to the proposed class. Instead, the court must also evaluate predominance and decide whether " 'the issues which may be jointly tried, when compared with those requiring separate adjudication, [are] sufficiently numerous and substantial to make the class action advantageous to the judicial process and to the litigants.' " (Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906, 913-914.) A court may properly deny certification where there are diverse factual issues to be resolved even though there may also be many common questions of law of law or fact. (Basurco v. 21st Century Ins. Co. (2003) 108 Cal.App.4th 110, 118.)
It was not an abuse of discretion for the trial court to conclude common questions did not sufficiently predominate over the non-common questions to make prosecution of the pleaded claims on behalf of the defined class advantageous to the judicial process or to the litigants.[14] Plaintiffs' principal claim--ABS roofs were so inherently defective that they were substantially certain to fail, and Fleetwood was aware of this defective design, concealed the problem and affirmatively misrepresented the roofs--required an assessment of each permutation of the ABS roof to determine which of its numerous iterations (if any) were inherently defective.[15] This issue alone would have splintered the defined class into numerous mini-trials of one subissue (the " inherently defective" issue) for a product produced over an approximately seven-year period. (See, e.g., Quacchia v. DaimlerChrysler Corp., supra, 122 Cal.App.4th at pp. 1449-1454 [CLRA and UCL claims based on seat buckle installed in 17 different cars over 10-year period; trial court did not abuse discretion in concluding predominance for the defined class was not shown because evaluation of whether buckles were defective would require particularized examination of each distinct configuration for the product].)
Moreover, each subgroup involved in the particular mini-trial of whether a particular version of the ABS roof was " inherently defective" would itself be subdivided into subgroups by a second set of questions, posed by plaintiffs' claims of fraud, which would require additional mini-trials: whether Fleetwood was aware the particular version of the ABS roof purchased by that subgroup was defective but nevertheless concealed or failed to disclose its properties. These mini-trials would themselves involve trial of an additional particularized issue not necessarily common to all members of the subclass, i.e. which members (if any) within each such subgroup had been informed of the properties of an ABS roof by the dealers whom Fleetwood had deputized to educate buyers on the dynamic properties of an ABS roof. Such particularized evaluations of each class member's claim militate against a finding that common issues predominate over individual issues. (See, e.g., Block v. Major League Baseball (1998) 65 Cal.App.4th 538, 544-546 [trial court's denial of certification not abuse of discretion where defenses required particularized evaluations of each class member's claim]; accord, Caro v. Proctor & Gamble Co. (1993) 18 Cal.App.4th 644, 668-669 [trial court's denial of certification for lack of predominance not abuse of discretion where claim may require particularized evaluation of nature of representations and extent of reliance by class members on representations].)
Finally, an additional overlay of issues, created by plaintiffs' claim that Fleetwood misrepresented the warranty or committed unfair business practices in administering the warranty program (by treating similarly situated purchasers in a disparate manner or by overcharging consumers), further subdivided the proposed class. Under this aspect of plaintiffs' claim, each subgroup of buyers who purchased the same version of the trailer would be further subdivided into original purchasers (who had warranty coverage) and secondary purchasers (who had no coverage). The sub-subgroup composed of original purchasers of the same particular version of the trailer would be further splintered between those whose roofs were replaced without any charges for shipping or parts and those allegedly overcharged for shipping. Moreover, each sub-subgroup composed of secondary purchasers of the same particular version of the trailer would be splintered into (a) those whose roofs were replaced without any charge, (b) those who paid for both shipping and parts, and (c) those who (like proposed class representative Lee) would be subject to a potential accord and satisfaction defense because they obtained a replacement roof for only the cost of shipping. (See fn. 10, ante.)
The trial court apparently recognized this exponential growth in the subclasses when it described plaintiffs' class as involving a " wide spectrum of classes and subclasses." The court's increasing recognition that the wide variety of non-common questions would create innumerable subclasses also indirectly provides support for the second basis it relied on to deny certification: the proposed class representatives did not have claims typical of the proposed class. The proposed representatives owned only a narrow sampling of the many iterations of the trailer; the only representative who was a " secondary" buyer was subject to a potential " accord and satisfaction" defense; it was unknown whether any of the newly proposed representatives may have been exposed to dealer-provided educational talk on the dynamics of ABS roofs; and none of the originally proposed plaintiffs could represent the portion of claimants overcharged for shipping. Accordingly, when the court expressed doubts that " to proceed along the class definitions that you've prepared, you'd essentially be, once a week you'd be adding a new class representative to cover a particular member of the class," the court was expressing valid concerns that the typicality requirement was not satisfied. Indeed, considering the myriad variations within the defined class, the court could justifiably conclude (as it apparently did) that typicality could never be reasonably achieved in a manner that would provide the requisite substantial benefits to the courts and the litigants (Linder v. Thrifty Oil Co., supra, 23 Cal.4th at p. 435) necessary to warrant certification of plaintiffs' proposed class action.[16]
DISPOSITION
The order is affirmed. Defendants are entitled to costs on appeal.
McDONALD, J.
WE CONCUR:
HALLER, Acting P. J.
O'ROURKE, J.
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[1] The court was also concerned, at the time of its tentative ruling, that the motion was brought too late in the proceedings. Although the court referred to this issue in its tentative ruling, it did not expressly rely on this ground when it tentatively denied certification and did not expressly reiterate this basis when it ultimately confirmed the ruling denying certification. Accordingly, we do not address this issue.
[2] For the warranty claims asserted between 1998 and 2003, approximately 2.5 percent of ABS tops produced by Fleetwood experienced " cosmetic" issues (cracks or bubbles) and 12.5 percent experienced functional problems, such as bowing. However, the ABS tops produced by Advance USA's roofs apparently fared much better: although cosmetic problems afflicted approximately 2 percent of Advance USA's roofs, bowing problems afflicted less than 3 percent of Advance USA's roofs.
[3] Fleetwood believed that requiring customers to pay for freight would reduce the portion of claims related to " cosmetic" issues because the average shipping costs (of approximately $500) would deter some customers from seeking a replacement top. Additionally, Fleetwood considered whether a special marketing program could be implemented to encourage turnover for earlier models because the legacy costs from the initial two production years could be reduced if the lifetime warranty to the original owner could be eliminated by such turnover.
[4] The complaint initially ignored Fleetwood and named only FEI as defendant. Although FEI informed plaintiffs in mid-August 2004 that Fleetwood was the manufacturer of the trailer, plaintiffs' First Amended Complaint filed two weeks thereafter still elected not to name Fleetwood as a defendant. Plaintiffs omitted Fleetwood as a defendant until they filed their second amended complaint in late December, 2004.
[5] Plaintiffs' motion did not articulate how the common issues involved in their claim under the Song Beverly Consumer Warranty Act claim predominated over individualized issues involved in that claim.
[6] Defendants also asserted the motion for certification was untimely because trial was calendared less than two months from the hearing and only three weeks remained before the discovery cut-off date, which provided a " 'grossly inadequate' " time frame to prepare for trial. Defendants argued it was inequitable to grant certification at the 11th hour.
[7] For example, the roof design was changed from a flat to a domed structure; and the tops were originally manufactured by Fleetwood and later outsourced to Advance USA. There were changes to (1) gasket design, adhesive and application; (2) the internal wiring within the ABS roof; (3) the bonding agent between the fibrous fabric and the ABS plastic; (4) the ABS formulation and the temperature and humidity controls within the manufacturing process; (5) the supplier of the thermoformed parts; (6) the specifications of the chemistry, properties and densities of the structural foam; (7) the fiberglass reinforcement for the ABS top; (8) the shape of the cut-out used for installing a top-mounted air-conditioning unit; (9) and the shape of the thermoformed parts.
[8] For example, one of the named plaintiffs (Mr. Thomas) had made no warranty claim, and therefore had not been charged anything. A second named plaintiff (Mr. Griffin) had a roof, panel and seal replaced at no charge (apparently with no shipping charges) long after the one-year warranty had expired. Moreover, his replacement roof (then suffering cosmetic issues) was an ABS roof, unlike the roofs of some class members that were replaced with aluminum tops. This added another layer of division within the defined class as well as creating typicality problems as to Griffin. A third named plaintiff (Mr. Kinninger) asserted he had been charged for labor to install a replacement nose piece (a curious charge because labor is covered under the warranty) but had not been charged anything to replace the roof even though his claim was made well after the one-year warranty had expired. It does not appear that any of the originally proposed class representatives were subsequent buyers, to whom the warranty did not extend, which created another subdivision within the defined class.
[9] The fraud claim was based on the marketing materials that advertised the durability and memory of ABS materials and did not disclose its potential for sagging, bowing or cracking. However, Fleetwood's marketing director (Mr. Marsh) testified Fleetwood gave its dealers materials to allow the dealer to educate the consumer about the dynamic properties of ABS plastics, including how it would expand and contract with temperature variations.
[10] For example, defendants noted the defining class characteristic--the payment of money to repair the ABS roof--was not itself actionable, but instead required an analysis of whether Fleetwood engaged in deceptive trade practices when issuing the warranty or otherwise wrongfully denied warranty coverage. Proposed class representatives Lee and Lutz were both subsequent purchasers who, under the express terms of the warranty, did not have coverage. As defendants pointed out, Lee and Lutz also presented added " typicality" issues because they were both subject to a potential " accord and satisfaction" defense; even though they (as subsequent buyers) had no coverage under the warranty for anything, they were able to obtain a replacement solely based on shipping costs, and Lee admitted he was " very content with the new roof" and was grateful Fleetwood had replaced the roof " even though I am not the original owner" of the trailer. Moreover, the claims of the proposed representatives were also potentially subject to statute of limitations defenses. Finally, the newly proposed class definition presented new " ascertainability" problems because it included tertiary buyers of the trailer (whose identities could not be determined by Fleetwood's records) if they paid for any repair to the ABS roof (again not necessarily reflected in Fleetwood's records).
[11] The court asked whether people who had purchased but not yet experienced problems would be excluded from the class and, if so, whether the class would keep growing, or whether a new class action would be required, or whether such people would be precluded from recovery. The court also noted there were still " problems with the class representatives," and that even after plaintiffs revised the class definition, " we're right back where we are." The court then asked whether, given the new class definition and proposed representatives, the warranty claims were no longer encompassed by the definition, since only one representative (Kinninger) could claim the benefits of the warranty and his only payment was to pay for shipping for replacing a nonwarrantied part after the one-year warranty period. Plaintiffs insisted the warranty issues were still within the proposed class action.
[12] Curiously, the letter recited the original class definition (all persons who currently own a trailer with an ABS roof and all persons who formerly owned a trailer with an ABS roof and paid money to have the ABS roof or panels repaired or replaced), and reiterated plaintiffs' claim that the original class representatives were sufficiently typical to pursue the class action. However, the letter also recited the " revised" class definition and class representatives. Plaintiffs' letter did not identify which iteration of the class and class representatives it contended was appropriate for certification. However, because plaintiffs on appeal revert to the original definition, and argue that proposed (or substituted) representatives held sufficiently typical claims of the originally defined class, we presume plaintiffs are arguing in favor of the original iteration of the class.
[13] On appeal, plaintiffs' opening brief focused solely on the court's conclusion that the putative class representatives did not have claims sufficiently typical of the proposed class. In their reply brief they addressed the additional concern over whether the class definition included claims having common questions that predominated over individualized issues. Although we could treat the issues as waived (Elite Show Services, Inc. v. Staffpro, Inc. (2004) 119 Cal.App.4th 263, 270; Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3 [withholding of a point until the reply brief deprives the respondent of an opportunity to answer it]), we nevertheless evaluate the issue.
[14] Plaintiffs asserted below, and argue in their reply brief on appeal, defendants conceded the critical questions of fact were common to the class (e.g., defendants were never able to remedy the defects in the ABS roof, knew the roofs were defective and a failure, and stopped using the roofs because of the inherently defective nature of the roofs) and were the predominate questions for the class, and the only non-common questions involved the damages recoverable by individual members. However, defendants did not concede these questions, but instead produced evidence that only a portion of the Fleetwood roofs failed, a much smaller fraction of roofs failed after Fleetwood outsourced manufacture to a company (Advance USA) with better quality controls and more experience in making the roofs; and Fleetwood stopped using ABS roofs because its supplier (Advance USA) declared bankruptcy.
[15] For example, Fleetwood produced a flat ABS roof for some period before redesigning the roof to a more domed shape; it redesigned the internal wiring within the ABS roof; it modified the formulation for the ABS materials; and modified the gasket design, adhesive and application. Each of these iterations could produce a separate minitrial on inherent defectiveness. Moreover, for the latter part of the class period, Fleetwood both outsourced production of the roof to Advance USA and apparently continued to tinker with design, materials and manufacturing controls. The roofs produced by Advance USA apparently resulted in a significant reduction in problems with bowing problems declining from over 12 percent of Fleetwood-produced roofs to less than 3 percent of Advance-USA roofs. Thus, mini-trials for each batch of Advance-USA roofs could also have been necessary on the " inherently defective" issue.
[16] The court implicitly recognized the issues raised by plaintiffs' multi-layered class were antithetical to the purposes served by a class action. When the court rejected plaintiffs' argument that the existing representatives were adequate, the court observed the purpose of requiring typicality of a representative is to " [allow] the defendant[s] to find out what they're up against. Otherwise, they'd essentially have to depose every member of the class. And that would defeat the whole purpose of the class action. It's fundamental you get a class representative [and] the first thing the defendant does [is depose the representative to] find out what the case is about, and what the potential class is. And at this point, you don't have that."
