JEREMY FOGEL

ORDER DENYING PLAINTIFFS'

RENEWED MOTION FOR CLASS

CERTIFICATION

[re: dkt. entry 179]

Plaintiffs Suzanne Rebro, Sondra Simpson, and John Carey ("Plaintiffs") have filed a renewed motion for class certification pursuant to Fed. R. Civ. P. 23. Defendants Sears, Roebuck and Co. ("Sears") and Whirlpool Corporation ("Whirlpool") (collectively, "Defendants") oppose the motion. The Court concludes that the motion is appropriate for disposition without oral argument pursuant to Civil Local Rule 7-1(b). For the reasons discussed below, the motion will be denied.

I. BACKGROUND

The facts giving rise to this action are well-known to the parties and to the Court and need not be set forth in full here. In brief, Plaintiffs allege that certain top-loading Kenmore Elite Oasis automatic washing machines ("Machines") were manufactured with a defective electronic control board ("ECB"). According to Plaintiffs, the defective ECB results in three different types of malfunction: (1) a "F1" error; (2) a "F51" error; and (3) a "sudden instability event" that can result in an explosion when certain types of fabric are in the wash load. The operative third amended complaint ("TAC") asserts claims against Whirlpool and Sears under California unfair competition and consumer protection laws, California common law, and the federal Magnuson-Moss Warranty Act ("MMWA"), 15 U.S.C. § 2301 et seq.

On May 4, 2012, the Court denied Plaintiffs' motion for class certification with respect to all of these claims. Tietsworth v. Sears, Roebuck and Co., No. 5:09-cv-00288-JF (HRL), 2012 WL 1595112 (N.D. Cal. May 4, 2012) ("Prior Order"). Although it determined that the numerosity, commonality, typicality, and adequacy requirements of Fed. R. Civ. P. 23(a) were satisfied, id. at *15-17, the Court concluded that the proposed classes were overbroad and unmanageable as defined, id. at *14; Plaintiffs' state law claims based upon concealment of the ECB defect were not appropriate for certification absent evidence that the ECB defect caused an unreasonable safety hazard, id. at *15; and individual questions predominated with respect to Plaintiffs' state law warranty claims, id. at *17. As to the MMWA claim, the Court observed that:

. . . Plaintiffs' counsel clarified at the hearing that the claim is based solely upon the federal statute and does not depend upon the laws of individual states. In light of that clarification, the Court conceivably could certify a properly defined class with respect to the MMWA claim. However, because the proposed classes are overbroad and unmanageable as currently defined, the present motion for class certification will be denied in its entirety.

The MMWA claim is based upon a one-year limited warranty issued by Sears, which reads as follows:

ONE YEAR LIMITED WARRANTY
When installed, operated and maintained according to all instructions supplied with the product, if this appliance fails due to a defect in material or workmanship within one year from the date of purchase, call 1-800-4-MY-HOME to arrange for free repair.

Although these allegations assert both form-and-content claims (based upon alleged violations of MMWA provisions prescribing the form and content of written warranties) and breach-of-warranty claims (based upon alleged failure to comply with written warranties), Plaintiffs' proposed class definition is directed only to the breach-of-warranty claims, that is, claims that Plaintiffs reported F1 and/or F51 error codes to Sears within the one-year warranty period but were denied repair of the problem and had to pay out-of-pocket or suffer continued F1 and F51 error codes. Plaintiffs seek certification of a nationwide class, defined as follows:

The Nationwide Class: All United States residents and entities who (1) purchased or owned a top-loading Kenmore Elite Oasis automatic washing machine after December 1, 2005 included within the models below; (2) experienced an Fland/or F51 error code and contacted Sears within the warranty period; and (3) either (a) paid for a replacement electronic control board, and/or (b) are still experiencing F1 or F51 error codes.
110.27032600, 110.27032601, 110.27032602, 110.27032603, 110.27042600, 110.27042601, 110.27042602, 110.27042603, 110.27052600, 110.27052601, 110.27052602, 110.27062600, 110.27062601, 110.27062602, 110.27062603, 110.27072600, 110.27072601, 110.27072602, 110.27072603, 110.27082601, 110.27082602, 110.27082603, 110.27082604, 110.27082605, 110.27086601, 110.27086602, 110.27086603, 110.27086604, 110.27086605, 110.27087601, 110.27087602, 110.27087603, 110.27087604, 110.27087605, 110.27092600, 110.27092601, 110.27092602, 110.27092603, 110.27092604, 110.27152600, 110.27152601, 110.27152602, 110.28032700, 110.28032701, 110.28042700, or 110.28042701.

II. LEGAL STANDARDS

"The class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only." Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2550 (2011) (internal quotation marks and citation omitted). "In order to justify a departure from that rule, a class representative must be part of the class and possess the same interest and suffer the same injury as the class members." Id. (internal quotation marks and citation omitted). "Before certifying a class, the trial court must conduct a 'rigorous analysis' to determine whether the party seeking certification has met the prerequisites of Rule 23." Mazza v. American Honda Motor Co., Inc., 666 F.3d 581, 588 (9th Cir. 2012) (quoting Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186, as amended by 273 F.3d 1266 (9th Cir. 2001)).

Under Rule 23(a), four prerequisites must be satisfied for class certification:

(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.

A plaintiff also must satisfy one or more of the separate prerequisites set forth in Rule 23(b): (1) there is a risk of substantial prejudice from separate actions; (2) declaratory or injunctive relief benefiting the class as a whole would be appropriate; or (3) common questions of law or fact predominate and the class action is superior to other available methods of adjudication. See Fed. R. Civ. P. 23(b).

"Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule - that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc." Dukes, 131 S.Ct. at 2551. Analysis of these factors "generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action." Id. at 2552 (internal quotation marks and citation omitted). "Nor is there anything unusual about that consequence: The necessity of touching aspects of the merits in order to resolve preliminary matters, e.g., jurisdiction and venue, is a familiar feature of litigation." Id.

III. DISCUSSION

A. Identifiable and Ascertainable Class

"As a threshold matter, and apart from the explicit requirements of Rule 23(a), the party seeking class certification must demonstrate that an identifiable and ascertainable class exists." Mazur v. eBay, Inc., 257 F.R.D. 563, 567 (N.D. Cal. 2009). "However, the class need not be 'so ascertainable that every potential member can be identified at the commencement of the action.'" O'Connor v. Boeing North American, Inc., 184 F.R.D. 311, 319 (C.D. Cal. 1998) (quoting Wright, Miller & Kane, § 1760 at 117). "As long as 'the general outlines of the membership of the class are determinable at the outset of the litigation, a class will be deemed to exist.'" Id. (quoting Wright, Miller & Kane, § 1760 at 118). "Thus, a class will be found to exist if the description of the class is definite enough so that it is administratively feasible for the court to ascertain whether an individual is a member." Id.

On its face, the proposed class definition appears to be fairly precise - it includes parties who (1) purchased or owned one of the subject Machines (defined by model number) after December 1, 2005; (2) experienced an F1 and/or an F51 error code and contacted Sears within the one-year warranty period; and (3) paid for a replacement ECB and/or still experience F1 and/or F51 error codes. However, Defendants point to evidence that the Machines are designed to, and do, display diagnostic "F" error codes for any number of reasons unrelated to a defective ECB. See, e.g., Farrington Decl. ¶¶ 17, 32, ECF No. 139-1. It is not clear that anyone can ascertain which individuals experienced "false" or "nuisance" error codes caused by a defective ECB and which individuals experienced "real" error codes that were displayed in the manner intended. For example, Plaintiffs' expert, Dr. Raymond Pietila ("Pietila"), admitted during his deposition that although he attended the inspection and testing of Plaintiff Rebro's washer, he could not determine what had caused Rebro's F1 error codes. Pietila Dep. at 161:4-9, 163:2-5, ECF No. 139-17.

Moreover, as the Court noted it its Prior Order, the model numbers recited in the class definition were used both for Machines containing the allegedly defective ECB and for Machines containing new ECBs that corrected the earlier software defect. Prior Order, 2012 WL 1595112, at *13. The Court rejected Plaintiffs' argument that identifying information such as part number, software version, and pressure sensor manufacturer could be used to check each Machine during a claim procedure, noting that such an approach would be "unwieldy" given the number of Machines at issue. Id. The Court concluded that "[i]f the allegedly defective ECB was not included in some Machines that carry the model numbers identified in the class definition, then the classes necessarily contain members who lack Article III standing." Id. at *14. "[N]o class may be certified that contains members lacking Article III standing." Mazza, 666 F.3d at 594 (internal quotation marks and citation omitted).

Although Plaintiffs have attempted to limit their proposed class definition to address the concerns raised by the Court it its Prior Order, it still appears that "ascertaining class membership would require unmanageable individualized inquiry." Xavier v. Philip Morris USA Inc., 787 F. Supp. 2d 1075, 1089 (N.D. Cal. 2011).

B. Rule 23(a)

In its Prior Order, the Court concluded that the numerosity, commonality, typicality, and adequacy requirements of Rule 23(a) were satisfied. However, after revisiting these requirements against the backdrop of Plaintiffs' new and more limited class definition, the Court has reconsidered this conclusion.

1. Numerosity

In connection with their initial motion for class certification, Plaintiffs presented evidence that the nationwide class consisted of more than 200,000 consumers who purchased or own a defective Machine. Plaintiffs' renewed motion articulates a much more limited class definition that is restricted to persons who purchased or own a defective machine and experienced an F1and/or F51 error code and contacted Sears within the warranty period and paid for a replacement electronic control board and/or are still experiencing F1 or F51 error codes. Plaintiffs do not present any evidence as to how many members meet this revised class definition, but rather argue that it is "common sense" that the number must be so great that joinder of all members is impracticable. See Rivera v. Bio EngineeredSuppl. & Nutr., Inc., No. SACV 07-1306 JVS (RNBx), 2008 WL 4906433, at *6 (C.D. Cal. Nov. 13, 2008) ("Where the exact size of the class is unknown, but general knowledge and common sense indicate that it is large, the numerosity requirement is satisfied.") (internal quotation marks and citation omitted). The Court concludes that it lacks sufficient data to make a common sense assumption that the numerosity requirement is met.

2. Commonality

Class members' claims must depend upon a common contention that is "of such a nature that it is capable of classwide resolution - which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Dukes, 131 S.Ct. at 2551. "What matters to class certification . . . is not the raising of common questions - even in droves - but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers." Id. (internal quotation marks and citation omitted).

In its Prior Order, Court concluded that Plaintiffs' claims turn upon the theory that all of the Machines in question were manufactured with a defective ECB and that such claims "are susceptible to common resolution - either the Machines in question contained a common defect in the ECB or they did not, and either the defect rendered the machines substantially certain to fail or it did not." Prior Order, 2012 WL 1595112, at *16. However, as framed by the renewed motion for class certification, the inquiry has shifted beyond whether the Machines were manufactured with a defective ECB. In order to prevail on their MMWA claim, Plaintiffs additionally must show that each class member received "false" F1 and/or F51 error codes caused by the defective ECB, reported that error code to Sears, and suffered damages when Sears failed to replace the defective ECB or otherwise cure the problem. The Court concludes that these individualized inquiries will vary from class member to class member and thus are not "common" for purposes of Rule 23(a)(2).

3. Typicality

The Court must determine whether "the claims or defenses of the representative parties are typical of the claims or defenses of the class." Fed. R. Civ. P. 23(a)(3). "[R]epresentative claims are 'typical' if they are reasonably co-extensive with those of absent class members; they need not be substantially identical." Hanlon Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). "[T]he commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence." Dukes, 131 S.Ct. at 2551 n.5. A proposed class representative is not typical if his or her claims are subject to time-consuming specific defenses that would not apply to absent class members. See State of Alaska v. Suburban Propane Gas Corp., 123 F.3d 1317, 1321 (9th Cir. 1997) ("A named plaintiff's motion for certification should not be granted if there is a danger that absent class members will suffer if their representative is preoccupied with defenses unique to it.") (quoting Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)).

Again, to prevail on their MMWA claim, Plaintiffs must show that they experienced "false" error codes, that they reported such error codes to Sears, and that Sears failed to repair the defective ECBs that caused the false error codes. Each class representative appears to be making just such a claim. Accordingly, the Court concludes that in this particular case the typicality requirement is satisfied notwithstanding the fact that the commonality requirement is not.

4. Adequacy

Plaintiffs must demonstrate that "the representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a)(4). When considering the adequacy of a class representative, courts generally consider only two questions: "(1) [d]o the representative plaintiffs and their counsel have any conflicts of interest with other class members, and (2) will the representative plaintiffs and their counsel prosecute the action vigorously on behalf of the class?" Staton v. Boeing Co., 327 F.3d 938, 957 (9th Cir. 2003). There is no evidence of any conflict of interest, and Plaintiffs have been zealous in prosecuting the action.

C. Rule 23(b)

In addition to demonstrating that this case meets the four requirements of Rule 23(a), Plaintiffs must demonstrate that it meets one of the requirements of Rule 23(b). They assert that the requirements of Rule 23(b)(3) are met because common questions of law or fact predominate and the class action is superior to other available methods of adjudication. When considering application of Rule 23(b)(3), the Court must go beyond asking whether any common questions exist and ask whether these common questions "predominate over any questions affecting only individual members" of the putative class. See Fed. R. Civ. P. 23(b)(3). This analysis focuses on "the relationship between the common and individual issues. When common questions present a significant aspect of the case and they can be resolved for all members of the class in a single adjudication, there is clear justification for handling the dispute on a representative rather than on an individual basis." Hanlon, 150 F.3d at 1022 (internal quotation marks and citation omitted). The Rule 23(b)(3) inquiry "tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Id. (citation omitted). If common questions do predominate, the plaintiff must demonstrate that the class action is superior to other available methods of adjudication. See Fed. R. Civ. P. 23(b).

As is discussed above, it appears that individualized questions predominate with respect to whether each putative class member experienced a "false" error code caused by a defective ECB, whether that class member notified Sears of the error code, and whether Sears breached the limited one-year warranty by failing to address the problem. These individualized questions are not subject to common proof. See Dukes, 131 S.Ct. at 2551 ("What matters to class certification . . . is not the raising of common 'questions' - even in droves - but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.").

IV. ORDER

Good cause therefor appearing:

Plaintiffs' renewed motion for class certification is DENIED.

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JEREMY FOGEL

United States District Judge