Filed 2/22/18 Bornstein v. Sonic Automotive, Inc. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


AARON BORNSTEIN,

Plaintiff and Appellant,

v.

SONIC AUTOMOTIVE, INC., et al.,

Defendants and Respondents.


G053839

(Super. Ct. No. 30-2008-00059024)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Kim Garlin Dunning, Judge. Affirmed.
Carroll, Kelly, Trotter, Franzen, McKenna & Peabody, Michael J. Trotter and David P. Pruett for Plaintiff and Appellant.
Arent Fox, Victor P. Danhi, George N. Koumbis and Bradley M. Tanner for Defendants and Respondents.
* * *

INTRODUCTION
Plaintiff Aaron Bornstein appeals from the trial court’s order denying his motion to certify a class action as to his single remaining claim against SAI Long Beach B, Inc. and Sonic Automotive, Inc. (defendants) for invasion of privacy. Bornstein asserts that during his employment at an automobile dealership (the dealership), defendant owners monitored or recorded some incoming telephone calls to the dealership without obtaining the consent of participants to such conversations. The trial court, in a detailed and thorough written order, denied Bornstein’s motion to certify a class action as to his claim on three separate and independent grounds. The court decided that Bornstein failed to meet his burden of showing the ascertainability of his proposed class, that common issues predominate over individual issues, and the superiority of class action treatment of his claim.
We affirm. For the reasons we will explain, the trial court did not abuse its discretion by denying the motion on any of the three grounds relied upon by the trial court.
BACKGROUND
I.
THE FIRST AMENDED COMPLAINT
Bornstein and Donald R. Hall, as individuals and on behalf of the general public and all others similarly situated, filed a first amended complaint (the complaint) against defendants containing a claim for invasion of privacy, based on alleged violations of Penal Code sections 631, 632, and 637.2, and a claim for unfair competition in violation of Business and Professions Code section 17200.
The complaint alleged that Bornstein was employed by, and Hall was a customer of, the dealership, and that “[a]t all relevant times herein, Sonic implemented, established, controlled, permitted and/or participated in the illegal tapping, recording or eavesdropping on telephone calls by and between [the dealership], Sonics’ California dealerships, their customers and employees.” The complaint further alleged “[a]s part of their business in selling and leasing automobiles to California consumers, defendants have engaged in illegal and unlawful conduct including, without limitation, eavesdropping on, recording and/or wiretapping telephone calls” and otherwise making unauthorized connections to telephone calls “in violation of California Penal Code sections 631 and 632.” The complaint also alleged defendants’ “surreptitious wiretapping [wa]s accomplished through a machine, instrument, or contrivance, or in another manner prohibited by California Penal Code section 631[, subdivision ](a)” and the “surreptitious eavesdropping and recording of telephone conversations [wa]s accomplished by means of electronic amplifying or recording devices in violation of California Penal Code section 632[, subdivision ](a).” The complaint alleged “defendants did not have the authorization or permission from plaintiffs . . . to eavesdrop upon, record or tap telephone conversations.”
As to the first cause of action for invasion of privacy, the complaint alleged “[b]ecause defendants eavesdropped on, or otherwise made an unauthorized connection to plaintiffs’ and other class members’ conversations, defendants are liable for the greater of $5,000.00 per violation or three times the amount of actual damages sustained by each plaintiff pursuant to California Penal Code section 637.2.” The complaint further alleged that because defendants’ conduct and invasion of plaintiffs’ right to privacy were willful, deliberate, malicious, intentional, and in violation of sections 631 and 632, plaintiffs sought statutory penalties and remedies for each putative class member “without regard to any actual damages that may have been sustained by an individual putative class member.”
The complaint alleged the second cause of action for unfair competition was based on the allegations supporting the first cause of action—with the additional allegation that “[t]he conduct of defendants as alleged herein constitutes an ongoing, unfair and/or fraudulent and/or unlawful business practice.”

II.
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR ADJUDICATION
Defendants filed a motion for summary judgment or summary adjudication. The trial court granted the motion for summary judgment. Hall had not opposed the motion. As to Bornstein, the court concluded, as a matter of law, that Bornstein “did not have an objectively reasonable expectation that his telephone conversations on the toll free number were confidential, i.e., they would not be overheard or recorded.”
Judgment was entered in favor of defendants. Plaintiffs appealed.

III.
WE REVERSED SUMMARY JUDGMENT SOLELY AS TO BORNSTEIN’S INVASION OF PRIVACY CLAIM BASED ON SECTION 631 AND OTHERWISE AFFIRMED SUMMARY ADJUDICATION OF THE COMPLAINT.
In the first appeal in this case, we affirmed the judgment entered in favor of defendants and against Hall. Although Hall’s name appeared on the notice of appeal, he did not file any appellate briefs or otherwise make any appearance in that appeal.
We reversed the judgment entered in favor of defendants and against Bornstein only as to his claim for invasion of privacy to the extent it was based on an alleged violation of section 631. We explained section 631 proscribes certain eavesdropping conduct and that section 637.2 establishes a private cause of action on the part of any person who has been injured by a violation of the chapter in which it is contained.
We explained: “The undisputed facts established that Bornstein did not have an objectively reasonable expectation of privacy with regard to the telephone calls he received at work on the dealership’s incoming toll free lines. Bornstein’s invasion of privacy claim, however, is also based on an alleged violation of section 631, subdivision (a), which broadly and ambiguously proscribes, inter alia, the interception of the content of a telephone communication ‘without the consent’ of all parties to that communication. Because Bornstein has produced evidence in opposition to the motion for summary judgment that he was unaware of the monitoring of his conversations on the toll free lines until March 2008, he has established the existence of a triable issue of fact as to whether he consented to such monitoring within the meaning of section 631. [¶] As to Bornstein’s second cause of action for unfair competition, he does not have standing to pursue such a claim as a matter of law because he has not suffered any economic injury as a result of defendants’ alleged violation of section 631. On remand, we direct the trial court to enter an order granting summary adjudication in favor of defendants as to Bornstein’s second cause of action.”

IV.
BORNSTEIN FILES A MOTION TO CERTIFY A CLASS AS TO HIS INVASION OF PRIVACY CLAIM BASED ON AN ALLEGED VIOLATION OF SECTION 631, THE TRIAL COURT DENIES THE MOTION, AND BORNSTEIN APPEALS.
In February 2016, Bornstein filed a motion to certify the following class for his invasion of privacy claim based on defendants’ alleged violation of section 631: “All present and former employees of Sonic Automotive dealerships whose telephone calls were monitored and recorded, from April 4, 2005 to present, without their knowledge or consent as a result of defendants’ policy and practice to monitor and record employees’ calls without their prior knowledge or consent.” Defendants filed opposition.
The trial court denied the motion to certify a class in a detailed 13-page order which stated, in part: “After considering the argument and admissible evidence presented in the papers, Plaintiff failed to meet his burden as to ascertainability, commonality, and superiority. Each of these defects presents a sufficient basis for denying Plaintiff’s Motion.”
Bornstein appealed. Defendants filed a motion to dismiss this appeal on the ground this court lacked jurisdiction because the appeal was not taken from an appealable order. This court denied the motion, finding the “death knell” exception to the “one final judgment” rule applied. (See Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 699; In re Baycol Cases I and II (2011) 51 Cal.4th 751, 762.)

DISCUSSION
I.
GENERAL CLASS ACTION PRINCIPLES AND STANDARD OF REVIEW
“Originally creatures of equity, class actions have been statutorily embraced by the Legislature whenever ‘the question [in a case] 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 . . . . [Citations.] Drawing on the language of Code of Civil Procedure section 382 and federal precedent, we have articulated clear requirements for the certification of a class. The party advocating class treatment must demonstrate the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives. [Citations.] ‘In turn, 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.”’” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021 (Brinker).)
Trial courts have discretion in granting or denying motions for class certification because they are well situated to evaluate the efficiencies and practicalities of permitting a class action. (Brinker, supra, 53 Cal.4th at p. 1022.) Despite this grant of discretion, appellate review of orders denying class certification differs from ordinary appellate review. Generally, we do not address the trial court’s reasoning and consider only whether the result was correct. (Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 843.) But when denying class certification, the trial court must state its reasons, and we must review those reasons for correctness. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435-436.) We may only consider the reasons stated by the trial court and must ignore any unexpressed reason that might support the ruling. (Ibid.; Kaldenbach v. Mutual of Omaha Life Ins. Co., supra, 178 Cal.App.4th at pp. 843-844; see Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, 1205.)
We will affirm an order denying class certification if any of the trial court’s stated reasons is valid and sufficient to justify the order, and is supported by substantial evidence. (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326-327.) We must reverse an order denying class certification if the trial court used improper criteria or made erroneous legal assumptions, even if substantial evidence supported the order. (Ibid.; Linder v. Thrifty Oil Co., supra, 23 Cal.4th at pp. 435-436.) A trial court’s decision that rests on an error of law is an abuse of discretion. (In re Tobacco II Cases (2009) 46 Cal.4th 298, 311; Pfizer Inc. v. Superior Court (2010) 182 Cal.App.4th 622, 629.)

II.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DETERMINING BORNSTEIN FAILED TO SHOW HIS PROPOSED CLASS IS ASCERTAINABLE.
“The purpose of the ascertainability requirement is to ensure notice is given to putative class members as to whom a judgment in the class action would be res judicata. [Citation.] Class members are ascertainable when they may be readily identified without unreasonable expense or time by reference to official records. [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.’” (Faulkinbury v. Boyd & Associates, Inc. (2013) 216 Cal.App.4th 220, 240.)
Here, the trial court concluded, in part: “The proposed class is not ascertainable. There is no reasonable method to identify class members. Any such effort would be unreasonable both in terms of time and expense. [¶] There is no evidence that any records still exist to permit the parties or court to determine ‘without unreasonable expense or time’ when incoming toll-free telephone calls were received during the relevant time period, whether those calls were monitored/recorded, and which putative class members engaged in those conversations. The only telephone conversations that could have been monitored/recorded were incoming calls through dealership toll-free lines provided by the Callbright system. Only those employees who engaged in ‘Callbright’ telephone conversations initiated through toll-free incoming calls could be class members. Defendants monitored those incoming toll-free calls by logging into the Callbright system and listening to them. Incoming calls through local area codes to the dealership could not be monitored or recorded. [¶] Plaintiff initially suggested that ‘at least 6,950 employees’ participated in incoming calls on toll-free lines. . . . [Citation.]; Defendants argued this estimate is grossly inaccurate as it represents t[he] total number of employees who worked at Long Beach BMW or at other Sonic subsidiary dealerships in California. Exhibit 25 (the list of 6,900+ employees at all the Sonic dealerships in California for a plus-ten year period) supports Defendants’ position on this point. In any event, Plaintiff seemed to concede this number is over-inclusive.”
Bornstein does not challenge any of the trial court’s factual findings as unsupported by substantial evidence. In his opening brief, Bornstein argues his burden of showing ascertainability did not include identifying individual class members. The trial court, however, did not impose such a burden on Bornstein. The trial court pointed out that Bornstein failed to show how the proposed class members might be identified, given the lack of records that would show which of defendants’ employees received incoming calls on toll-free lines that defendants monitored without prior knowledge or consent.
Bornstein argues that defendants’ policy to record and/or monitor certain phone calls without employees’ prior knowledge and consent was in and of itself sufficient to establish an ascertainable class of individuals who suffered an invasion of privacy based on a violation of section 631. As pointed out in the trial court’s order, evidence showed an undetermined number of employees were aware that some calls at the dealership were monitored and/or recorded. Thus, the absence of a uniform policy, coupled with the difficulty of determining which calls were monitored and/or recorded and whether employees involved in such calls were aware of and consented to such monitoring and/or recording, undermined the ascertainability of Bornstein’s proposed class.
Bornstein argues even if the proposed class might be overbroad, the court should have certified a class because the class definition could be later modified to limit it to sales or service employees. Even if the proposed class definition were so modified, the same problem with ascertainability persists—Bornstein failed to explain how sales and service employees who had calls monitored or recorded without their knowledge or consent might be identified. The trial court did not abuse its discretion in finding a lack of an ascertainable class.

III.
INDIVIDUAL QUESTIONS OF FACT PREDOMINATE OVER COMMON QUESTIONS.
The trial court also denied the motion for class certification on the separate and independent ground that individual issues would predominate over common issues in determining the element of consent—an element that is critical to proving a violation of section 631. The court did not abuse its discretion in reaching this conclusion.
The California Supreme Court in Brinker, supra, 53 Cal.4th 1004 stated: “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.’” (Id. at pp. 1021-1022, fn. omitted.)
Here, the trial court noted Bornstein’s sole argument in favor of a finding common issues predominated over individual ones was that defendants had a uniform, companywide practice not to advise employees that some incoming telephone calls could be monitored and/or recorded. The trial court stated in its order that it had “carefully examined the admissible evidence concerning the existence (or not) of a companywide policy as claimed by Plaintiff” and found “[w]ithout question” that (1) “various Sonic dealerships, including Mr. Bornstein’s employer, Long Beach BMW, contracted with third-party Callbright for the monitoring and recording of incoming toll-free telephone calls”; and (2) “admissible evidence also established Defendants did not have a uniform, companywide written policy or practice to either inform employees that incoming toll-free calls could be monitored or obtain their consent.”
The court correctly observed that while a companywide practice can support a finding of commonality for class certification, a companywide policy or practice, alone, does not guarantee class certification. The court also concluded, however, that “[t]he absence of a uniform companywide policy to inform d[id] not, in the court’s view, conclusively establish a uniform companywide policy not to inform.” The court cited evidence that defendants did not have a uniform or companywide policy against informing employees that their calls might be monitored and/or recorded. The court also cited evidence that “a number of Sonic employees/putative class members expressly or impliedly consented to the monitoring/recording.” Bornstein does not dispute the evidence cited in the court’s order.
Given the state of the record before it, the trial court was within its discretion to conclude: “The consent element, critical to a claimed violation of Penal Code section 631, cannot be determined on a classwide basis. Rather, it will require individualized evidence that varies by employee, dealership and local management. In fact, Plaintiff expressly conceded during oral argument . . . that individualized inquiry was necessary for Plaintiff to demonstrate consent, or lack thereof, for each class member under the analytical framework he proposed.”
This case bears similarity to Kight v. CashCall, Inc. (2014) 231 Cal.App.4th 112, in which the appellate court affirmed the trial court’s order decertifying a class action with regard to the plaintiffs’ claims for violation of section 632. The appellate court held: “Under section 632, the defendant has the right to litigate the issue of each class member’s consent and each class member’s claimed objectively reasonable expectation that the call was not being monitored. Although there remain certain common questions—including whether CashCall monitored the calls and the timing of the Call Monitoring Disclosures—the court acted within its discretion in finding these questions pale in terms of factual complexity and scope when compared with the significant individual questions regarding liability.” (Kight v. CashCall, Inc., supra, 231 Cal.App.4th at p. 132.)
Similarly, in the instant case, the trial court did not abuse its discretion in determining the resolution of individual issues would predominate in the litigation of Bornstein’s claim and denying his motion to certify a class on that basis.



IV.
SUPERIORITY
The trial court also found class certification not to be the superior means for a fair and efficient adjudication of Bornstein’s claim, stating: “‘Although predominance of common issues is often a major factor in a certification analysis, it is not the only consideration. In certifying a class action, the court must also conclude that litigation of individual issues, including those arising from affirmative defenses, can be managed fairly and efficiently.’ [Citation.] 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. [Citation.] [¶] Plaintiff presents very limited argument on this element. Plaintiff has not suggested any manner in which the individualized consent issues discussed above might be managed fairly and efficiently. For the reasons this court finds that individual issues predominate over common ones, this court also finds that a class action is not the superior means to resolve the parties’ dispute.”
In his opening brief, Bornstein does not address the trial court’s statement that he has failed to suggest how individualized issues might be managed fairly and efficiently in a class action context. Instead, he argues, without analysis, that “Sonic’s centralized practices . . . ‘make[] class certification appropriate,’” a class action “would also serve to redress Sonic’s alleged wrongdoing and the public policy which led to the enactment of Penal Code section 631,” and “the corporate policies and practices established by Sonic’s headquarters are subject to common proof and it would not be efficient to require repetitious litigation.”
The trial court did not abuse its discretion in concluding that Bornstein failed to show how his invasion of privacy claim based on a violation of section 631 would be best resolved through a class action.
DISPOSITION
The order is affirmed. Respondents shall recover costs on appeal.




FYBEL, ACTING P. J.

WE CONCUR:



IKOLA, J.



THOMPSON, J.