New class certification decision: Evans v. Lasco Bathware, Inc.

In Evans v. Lasco Bathware, Inc., ___ Cal.App.4th ___ (Oct. 13, 2009; pub. ord. Nov. 6, 2009), which was ordered published last Friday, the Court of Appeal (Fourth Appellate District, Division One) affirmed an order denying class certification in a product defect case seeking economic damages for negligence and strict products liability.  Evidently, no UCL claim was raised, and the opinion does not mention Tobacco II.

I have not read it carefully, but the outcome of this opinion appears contrary to the well-established principle that "a class action is not inappropriate simply because each member of the class may at some point be required to make an individual showing as to his or her eligibility for recovery or as to the amount of his or her damages." Sav-on Drug Stores, Inc. v. Superior Court, 34 Cal.4th 319, 333 (2004).   "Individualized damages issues" appears to be the only basis for the trial court's denial of certification and the Court of Appeal's affirmance. 

Comments

[Steve Kane]

This panel deliberately ignored Sav-on, claiming in Footnote 6 that "it does not appear that plaintiffs raised this argument below," and, instead, followed a line of pre-Sav-on cases from the 19990s which were obviously superceded by Sav-on. The panel also claimed that the plaintiffs failed "to propose below how litigation of damages could be handled in a manageable fashion" and this failure barred certification. Clearly, the adjudication of damages would be handled just as in almost every class action by submission and review of claims. There is nothing exotic about the process which would require the plaintiffs to educate the court on the mechanics. This panel was determined to ignore Sav-on and uphold denial of certification. The same thing happened in Brinker, another 4th District case in which the California Supreme Court granted review. Brinker is just about ready for oral argument and it will be interesting to see if the Supreme Court believes that the 4th District "scorched earth" policy on class actions meets the certification standards of Sav-on and those more recently articulated in Gentry and Tobacco II.