Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC347880.
William F. Fahey, Judge. Affirmed.
Gerald V. Selvo for Plaintiff and Appellant.
Law Offices of Joseph W. Singleton and Joseph W. Singleton for Defendant and Respondent.
COOPER, P. J.
We affirm the trial court’s denial of class certification. Appellant Brenda Jewell does not show that the trial court abused its wide discretion when it concluded that her counsel was not an adequate representative in this particular class action.
FACTUAL AND PROCEDURAL BACKGROUND
1. Counsel’s Letter Predating Litigation
In a letter dated August 28, 2005, counsel, Gerald Selvo, who seeks to represent the class (counsel), wrote Amber Farr, the corporate officer of Blonde, Inc. (Blonde). The following are excerpts from that letter.
“I am the natural father and parent of Nadia . . . an unemancipated minor . . . . At the time of the incidents set forth here Nadia was approximately 17 years and two months old.
“On August 25, 2005 Nadia purchased items in your store at a total cost of $854.08. I returned those items to your store on August 26, 2005 in perfect condition, along with the credit card slips and receipts. I informed the two personnel who were present that Nadia was a minor and that I was rescinding the purchases. I stated that I wanted an immediate credit back to my credit card. The manager ‘Becka’ declined to do so and handed me the phone to talk to ‘Josh’ who was identified as your ‘accountant.’ I explained to Josh that Nadia was a minor and that I was rescinding the purchases and demanded an immediate credit to my credit card. Josh refused and stated that ‘store policy’ was that only store credit would be provided. I explained that such a policy was part of the contract that I was rescinding and was not operative. He stated that I could take it up with VISA but that only store credit would be given because that was store policy.”
The letter further asserts that the store is in violation of California Civil Code sections 1723 and 1780 et seq. and that the contract was voidable because it was made by a minor.
Undesignated statutory citations are to the Civil Code.
2. Complaint
In a complaint filed on February 22, 2006, Jewell alleged she purchased goods and attempted to return them within seven days. Blonde refused to issue a cash or credit card refund for the purchase. Jewell alleged Blonde had a policy of refusing cash or credit refunds and failed to conspicuously display its return policy in the store. Jewell alleged causes of action for violation of sections 1723 and 1750, Business and Professions Code section 17200 et seq., and fraud. Jewell sought class action status.
Section 1723, subdivision (a), provides in part: “Every retail seller which sells goods to the public in this state that has a policy as to any of those goods of not giving full cash or credit refunds, or of not allowing equal exchanges, or any combination thereof, for at least seven days following purchase of the goods if they are returned and proof of their purchase is presented, shall conspicuously display that policy either on signs posted at each cash register and sale counter, at each public entrance, on tags attached to each item sold under that policy, or on the retail seller’s order forms, if any. This display shall state the store’s policy, including, but not limited to, whether cash refund, store credit, or exchanges will be given for the full amount of the purchase price; the applicable time period; the types of merchandise which are covered by the policy; and any other conditions which govern the refund, credit, or exchange of merchandise.”
Section 1750 et seq. constitute the Consumer Legal Remedies Act (CLRA). The CLRA provides its own class action procedures where an “unlawful method, act, or practice has caused damage to other consumers similarly situated. . . .” (§ 1781, subd. (a).) It allows for actual damages, an injunction, restitution, and punitive damages. (§ 1780.) The complaint alleged that the refusal to provide a cash or credit refund violated the CLRA.
3. Jewell’s Deposition
Jewell testified in her deposition that she is a friend of counsel and lives in the same community as counsel. Counsel had completed other unrelated legal work for her. Jewell stated that counsel did not request she purchase any item at Blonde or return any item to Blonde. She also indicated that she acted according to her principles in filing this lawsuit. Jewell did not notice that her receipt said “store credit only” and she was not aware of the return policy when she made the purchase.
4. Motion For Class Certification
Jewell sought to represent the following class: “All persons, except senior citizens or disabled persons as defined in the Consumer Legal Remedies Act, who purchased goods at retail from the Defendants during the period February 22, 2002 and continuing until full compliance with § 1723 is achieved, and who returned them or sought to return them.”
Subsequently, Jewell proposed the following class: “All persons, except senior citizens or disabled persons as defined in the Consumer Legal Remedies Act, who purchased goods at retail from the Defendants during the period February 22, 2002 and continuing until full compliance with § 1723 is achieved, and who returned them or sought to return them within 30 days of their purchase. Also excluded from the class are those who otherwise meet the class definition except that the goods they returned or sought to return were marked ‘as is,’ ‘no returns accepted,’ ‘all sales final,’ or with similar language, goods used or damaged after purchase, customized goods received as ordered, goods not returned with their original package, and goods which cannot be resold due to health considerations.”
Jewell sought to represent a class of about 210 members and indicated the value of the items returned varied from $18 to $854. She argued that the plaintiffs’ claims were common because the key issue is whether Blonde had a no cash or refund policy; whether Blonde conspicuously displayed their no-refund policy; whether it violated the statutes or committed a tort as alleged in the complaint; and whether class members are entitled to damages.
With respect to the adequacy of representation, Jewell stated that counsel is a vigorous advocate and tenaciously will protect the interests of the class. Counsel attached an additional description of his work, which includes extensive experience with the National Labor Relations Board (NLRB) and as a union attorney. Counsel has “tried one complete federal court bench trial and prevailed in appealing the adverse district court determination.” He also represented a union as an intervener in a class action lawsuit.
Counsel supported this by his declaration in which he stated: “Counsel has been practicing law in California since 1981, for nine years as an NLRB field attorney and them [sic] for 18 years as a union-side labor lawyer. His most recent significant cases are Overstreet v. United Brotherhood of Carpenters and Joiners of America, Local Union No. 1506, 2003 U.S. Dist. LEXIS 19854 (S.D. Cal. 2003) aff’d No. 03-56135 (9th Cir. June 8, 2005, and Kohn v. Southwest Reg’l Council of Carpenters, 289 F.Supp.2d 1155 (C. D. Cal. 2003). In those cases counsel convinced two federal district courts to deny injunctive relief to the National Labor Relations Board in the context of banner displays at the premises of secondary employers, the NLRB asserting that this was a violation of the ‘secondary boycott’ provisions of the federal Labor Management Relations Act of 1947, as amended, 29 U.S.C. § 151, et seq. Counsel was solely responsible for its litigation success, including the entire appeal to the Ninth Circuit, where Counsel convinced the Court that the government was not entitled to special deference in such matters, resulting in a published decision to that effect and upholding the denial of injunctive relief.”
5. Court Findings
The court made the following findings: “[I]t appears that the dispute between the parties arose when the minor daughter of plaintiff’s counsel made an $800 plus purchase at the defendant’s retail store. When counsel’s daughter attempted to get a refund, only store credit was offered. Thereafter, Ms. Jewell, a long-time friend and neighbor of counsel, apparently made a $23 purchase from defendant’s store and was also offered only store credit and not a refund. Ms. Jewell then became the named plaintiff in this case.”
The court was concerned about counsel’s ability to represent the class: “[I]t is not disputed that plaintiff’s counsel has no real class action experience. This is also demonstrated by several procedural and related errors in prosecuting the instant motion. First, the motion was filed in violation of the 28 day notice rule of California Rule of Court 1854(c). Second, the motion prematurely sought to have this court approve a ‘Class Notice’ before the motion to certify was granted, without input from opposing counsel and which does not in any event conform to the particular requirements of CRC 1856(d). Third, plaintiff’s counsel’s legal memoranda fail to address a key element of class certification jurisprudence: whether a class action would be superior. . . . Fourth, this Court is very concerned about plaintiff’s counsel’s suggestion of trying to enlist ‘one of his son’s old teachers at Venice High,’ (who apparently possesses no prior training or experience in class action matters) to provide notice to class members and collate their responses, all in an effort to save money. [¶] Fifth, it appears that plaintiff’s counsel is personally embroiled in this dispute” and is a “percipient witness, who would be subject to a deposition and/or a trial subpoena.”
In an e-mail communication, counsel wrote to Blonde’s attorney, “I think we could agree on an inexpensive third party to get the job done. . . . [¶] The . . . third party addresses and stuffs envelopes with the letters and sends them out. He/she waits the 10 days plus 5 more days for mail transit, then contacts both of us with the results, delivering the YES authorizations to me, and you then providing any additional information you may have on any of the YES responders. [¶] This is a menial job that any decent high schooler could do and it would not be expensive on a per hour and costs basis. The more difficult part is finding someone that we could both agree on to do it. I am thinking that I could contact one of my son’s old teachers at Venice High, who just retired, and either ask him to do it or see if he knows of a trusted student that would be willing to do so. I can’t see it costing more than a couple of hundred bucks.”
The court was concerned about Jewell’s ability to represent the putative class. According to the trial court, she did not provide a declaration as required by California Rules of Court, rule 1854(c)(3). The court rejected Jewell’s argument that her claim was typical, finding instead that a “series of mini-trials would likely be required” to determine if each class member received a receipt with notice stating store credit only and if they were a beneficiary of an exception to the refund policy. Finally, the court refused to take judicial notice of In re Marriage of Elissa W. and Gerald Servo, as requested by Blonde.
Jewell timely appealed from the order denying class certification. That order is appealable. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435 (Linder).) Jewell also purports to appeal from an order denying a motion to quash a subpoena. That order is not appealable. (Code Civ. Proc., § 904.1 [listing the appealable orders].) We imposed a stay on the trial of Jewell’s individual claims pending this appeal.
DISCUSSION
I. Legal Principles
A. General Class Action
“Section 382 of the Code of Civil Procedure authorizes class action suits 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.’ To obtain certification, a party must establish the existence of both an ascertainable class and a well-defined community of interest among the class members. [Citations.] 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.’ [Citation.] Other relevant considerations include the probability that each class member will come forward ultimately to prove his or her separate claim to a portion of the total recovery and whether the class approach would actually serve to deter and redress alleged wrongdoing. [Citation.]” (Linder, supra, 23 Cal.4th at p. 435; see also Fireside Bank v. Superior Court (2007) 40 Cal.4th 1069, 1089.)
“ ‘ “By establishing a technique whereby the claims of many individuals can be resolved at the same time, the class suit both eliminates the possibility of repetitious litigation and provides small claimants with a method of obtaining redress for claims which would otherwise be too small to warrant individual litigation.” ’ ” (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 340 (Sav-On Drug Stores, Inc.).) “[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.” ’ [Citation.]” (Linder, supra,23 Cal.4th at p. 435.) “This obligation entails considering the role of the class action mechanism in deterring and redressing wrongdoing. [Citation.] Further, the substantial benefits analysis raises the question whether a class action is superior to individual lawsuits and other alternative procedures for resolving the controversy.” (Capitol People First v. State Dept. of Developmental Services (2007) 155 Cal.App.4th 676, 689 (Capitol People First).)
B. Consumer’s Class Action
The CLRA “established a nonexclusive statutory remedy for ‘unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer. . . .’ [Citation.]” ’ [Citation.] ‘The self-declared purposes of the act are ‘to protect consumers against unfair and deceptive business practices and to provide efficient and economical procedures to secure such protection.” (Civ. Code, § 1760 . . . .)’ [Citation.])” (Wang v. Massey Chevrolet (2002) 97 Cal.App.4th 856, 869.) Actions brought under the CLRA are governed by the provisions of the CLRA. (Ibid.)
Section 1781, subdivision (a), authorizes a class action “if the unlawful method, act, or practice has caused damage to other consumers similarly situated. . . .” The requirements for a class action under this statute are as follows: “(1) It is impracticable to bring all members of the class before the court. [¶] (2) The questions of law or fact common to the class are substantially similar and predominate over the questions affecting the individual members. [¶] (3) The claims or defenses of the representative plaintiffs are typical of the claims or defenses of the class. [¶] (4) The representative plaintiffs will fairly and adequately protect the interests of the class.” (Id. subd. (b).)
II. The Trial Court’s Order Contains A Valid Reason For Denying Certification, Which Is Supported By The Record
“ ‘[A]n order [granting or denying class certification] based upon improper criteria or incorrect assumptions calls for reversal “ ‘ “even though there may be substantial evidence to support the court’s order.” ’ ” ’ ” (Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906, 914.) “ ‘Any valid pertinent reason stated will be sufficient to uphold the order.’ [Citation.]” (Linder, supra, 23 Cal.4th at p. 436.) The trial court has wide discretion in determining the appropriateness of class certification. (Sav-On Drug Stores, Inc., supra, 34 Cal.4th at p. 326; Capitol People First, supra,155 Cal.App.4th at p. 689.)
Jewell requests this court “not issue an opinion that would subject counsel to opprobrium by opposing trial counsel,” yet asks this court to consider the trial court’s conclusion that counsel was not a proper representative in this case. Because the trial court has wide discretion, applied a valid criteria, and its conclusion is supported, we affirm the trial court’s order denying class certification. We hold only that in this particular case, it was not an abuse of discretion. We do not consider any other case and do not intend to intimate that counsel could not represent a class in another case. Nor do we suggest class action should be denied if the class were represented by other counsel.
Counsel’s representation is a consideration in class action litigation. With respect to the CLRA claim, one prerequisite in section 1781, subdivision (b)(4), is that the “representative plaintiffs will fairly and adequately protect the interests of the class.” Similarly, under Code of Civil Procedure section 382, one criteria is a class representative who can adequately represent the class. (Linder, supra, 23 Cal.4th at p. 435.) “Adequacy of representation depends on whether the plaintiff’s attorney is qualified to conduct the proposed litigation and the plaintiff’s interests are not antagonistic to the interests of the class.” (McGhee v. Bank of America (1976) 60 Cal.App.3d 442, 450.) A class attorney generally cannot act as a class representative. (Apple Computer, Inc. v. Superior Court (2005) 126 Cal.App.4th 1253, 1264.)
Counsel’s personal involvement with Blonde was a relevant consideration in assessing counsel’s ability to represent the class. Counsel’s minor daughter had the largest claim (one that was 35 times greater than the named plaintiff) and counsel attempted to return items purchased by her daughter and thereby became a percipient witness to the display of Blonde’s return policy (or lack thereof). “A trial court acts properly when it refuses to certify class actions [or grants motions to disqualify class counsel where] the named plaintiff is simply ‘ “lending his name to a suit controlled entirely by the class attorney.” ’ ” (Howard Gunty Profit Sharing Plan v. Superior Court (2001)88 Cal.App.4th 572, 579-580.) The evidence does not compel the conclusion that the dispute began with counsel’s attempt to return items, but the record supports that conclusion reached by the trial court.
When Jewell was asked if she remembered counsel telling her about his experience at Blonde, counsel instructed her not to answer based on attorney/client privilege.
Jewell’s statement that the letter was “counsel’s daughter’s” is not persuasive because it was signed by counsel. For purposes of this appeal, we need not conclusively determine whether a deposition of counsel would be required; it is clear from the record, counsel was personally involved with Blonde prior to the litigation, and that Jewell and counsel were longtime friends and lived in the same community.
Specifically Jewell states, “The most the record reflects, as far as this action is concerned and assuming the accuracy of counsel’s daughter’s demand letter, is that counsel was personally aware of Defendant’s general no-refund policy . . . and that a sign was not posted when he visited the premises.”
Jewell emphasizes that she testified in her deposition that counsel did not request she purchase or return any item to Blonde. Her argument correctly reflects her deposition testimony, but the trial court was not required to ignore the letter counsel wrote to Blonde. When two or more inferences can reasonably be deduced from the facts, “ ‘ “ ‘the reviewing court has no authority to substitute its decision for that of the trial court. [Citations.]’ ” ’ ” (Sav-On Drug Stores, Inc., supra, 34 Cal.4th at p. 328.) “ ‘[I]t is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.’ ” (Id. at p. 331.)
The principle in Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627 that “ ‘[r]easonable’ inferences do not include those which are contrary to uncontradicted evidence of such a nature that reasonable people would not doubt it” is simply inapplicable here. (Id. at p. 1633, fn. 4.) In this case, there is contrary evidence, i.e., counsel’s letter. The court’s inference that “the dispute between the parties arose” when Blonde did not accept a credit return for counsel’s daughter’s purchase is supported by the letter and is not the result of speculation, as appellant contends.
Second, and more importantly, counsel’s absence of class action experience and limited trial experience was an additional relevant concern. (McGhee v. Bank of America, supra, 60 Cal.App.3d at p. 450 [adequacy of counsel depends on counsel’s qualifications], cf. Mechigian v. Art Capital Corp. (D.C.N.Y. 1985) 612 F.Supp. 1421, 1433 [finding counsel inadequate where no class action experience].) The record indicates that except for representing an intervener, counsel has no class action experience and very little trial experience. The trial court appropriately relied on those undisputed facts as well as counsel’s performance while before the trial court. There was no “per se” exclusion as argued, but the court acted within its discretion in finding that counsel’s experience with respect to class action litigation was lacking in this particular case.
Jewell challenges many of the trial court’s findings that counsel failed to follow proper procedures. She emphasizes that the procedures for a class action under section 1781 are different from those under Code of Civil Procedure section 382. We find no error in the trial court’s conclusion because Jewell’s motion for class certification was not limited to the CLRA claim. Specifically she states, “This action asserts that Defendants have violated Cal.Civ.C. § 1723, which requires that retail sellers ‘conspicuously display’ any no-refund policy, subject to certain exceptions. Plaintiff further assert [sic] a violation of Cal. Bus. & Prof. C, § 17200, the unfair competition law, as a derivative violation of § 1723. Finally, Plaintiff asserts a non-statutory claim that Defendants’ failure to disclose the no-refund policy constitutes deceit or concealment of a material fact with the intention of depriving a person of property or legal rights or otherwise causing injury, a non-statutory tort.”
Jewell’s argument acknowledging that the motion was not filed in compliance with California Rules of Court, rule 1854(c), but that no prejudice resulted, may be helpful in analyzing whether the court should allow the hearing to proceed (which it did), but is not helpful in analyzing the competency of counsel for purposes of class action litigation. Former rule 1854 (and current rule 3.764), described evidence in support of the motion “in the form of declarations of counsel, class representatives, or other appropriate declarants.” (Cal. Rules of Court, rule 1854(c)(3).) Jewell states that she attached her deposition testimony, but that is not in the form required by the rule. In addition the court found that the relevant pages of the deposition were not attached to the motion.
If the technical violations of the rules were the only basis for finding the lack of adequate representation, appellant’s argument would require substantial discussion. (Cf. McGowan v. Faulkner Concrete Pipe Co. (5th Cir. 1981) 659 F.2d 554, 559, fn. 3 [“a technical violation alone may not be sufficient to require denial of certification”] with Porter v. Nationscredit Consumer Discount Co. (E.D.Pa. 2005) 229 F.R.D. 497, 500 [“It is quite clear that counsel who cannot even submit a properly paginated document to the Court is incapable of administering and litigating a complex class action”].) However, here, the court also relied on counsel’s personal involvement in the litigation and lack of experience in class action litigation. When considered in conjunction with the technical violations, the court did not abuse its discretion in finding that counsel was not an adequate representative.
We need not consider Jewell’s argument that the court improperly relied on an unpublished case disparaging of counsel because the court stated in its order: “In ruling on this motion this Court declines to take judicial notice of the unpublished decision of the Court of Appeal In In re the Marriage of Elissa W. and Gerald Selvo.” As the trial court did not rely on the unpublished case in reaching its decision about counsel’s competence, we need not consider the propriety of relying on an unpublished case in this context.
Although Jewell states that Blonde’s “claimed concern that class members would not be well served by counsel smacks of crocodile tears and unctuousness,” she does not show either that the court abused its discretion or that its findings are unsupported. The trial court’s conclusion, in the context of this case, was not “irrational.” (See Sav-On Drug Stores, Inc., supra, 34 Cal.4th at p. 329.) Because the court relied on a “valid pertinent” reason in denying class certification, we need not discuss the court’s other reasons for denying class certification. (Caro v. Procter & Gamble Co. (1993) 18 Cal.App.4th 644, 656; Petherbridge v. Altadena Fed. Sav. & Loan Assn. (1974) 37 Cal.App.3d 193, 199, fn. 2.)
DISPOSITION
The order denying class certification is affirmed. The stay of trial previously ordered is dissolved. Each party to bear her or its own costs on appeal.
We concur: RUBIN, J., FLIER, J.