Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. 06CC00211, David C. Velasquez, Judge.
Teuton, Loewy & Parker and Mark C. Teuton; The Law Offices of Kevin T. Barnes and Kevin T. Barnes, for Plaintiffs and Appellants.
Sheppard, Mullin, Richter & Hampton, Robert S. Beall, Jonathan P. Hersey and Michael A. Wallin, for Defendants and Respondents.
OPINION
BEDSWORTH, ACTING P. J.
INTRODUCTION
Appellants are three customers of LendingTree, LLC (LendingTree), who allege they were deceived by a massive advertising campaign into believing that LendingTree would assist them in getting mortgage loans from a large network of competing banks. Instead, they allege, LendingTree secretly directed them to its own captive lender, and the loans they ultimately obtained came from this single source. They moved to certify a nationwide class under California’s consumer protection laws of all LendingTree customers similarly deceived.
The trial court denied the motion. Appellants had failed to submit evidence of damage or lost money, indispensible elements of standing to sue under these laws. In addition, appellants could not explain how they planned to prove the existence of class-wide damage or lost money. The court recognized that they did not have to prove an amount of damages at the class certification stage; they did, however, have to be able to articulate a theory of damages susceptible of common proof. Because they could not do so, they had not carried their burden to show that class issues would preponderate over individual issues and therefore that a class action was superior to individual actions.
We affirm. We agree appellants failed to supply evidence upon which to base either their individual damages or a method of common proof. In fact, it appears from the record that appellants had not given any thought to these issues until it was time to prepare their reply. The ideas they threw out at that point, however, had the disadvantage of lacking any supporting evidence. Because appellants could not show standing to sue and could not carry their burden to show that common issues predominated over individual ones, the court properly denied class certification.
FACTS
LendingTree advertises itself as a kind of personal shopper for mortgage loans. It represents that it has developed a network of banks, all competing against each other and ready to fund real estate purchases. Because of this competition, the customer “wins, ” that is, gets the best of the loan terms on offer.
A LendingTree customer prepares an on-line application, giving personal and financial information and stating the kind of loan desired. LendingTree undertakes to present this information to the waiting banks, who then inform LendingTree of the loans they are prepared to make. LendingTree passes the top four or five bids along to the customer, who deals with the banks directly to close the loan. LendingTree does not charge the customer any fee for this service; the banks pay the fees.
According to appellants, the LendingTree system functioned in this way up to December 2004 and continued to function that way in 80 to 85 percent of the transactions afterwards. In the other 15 to 20 percent post-December-2004 transactions, however, the system operated differently. Instead of sending potential borrowers financial information to independent banks, LendingTree sent it to Home Loan Center (Home Loan), a lender LendingTree had acquired in December 2004. Although these borrowers still received four or five bids, ostensibly from competing, banks, in reality all the bids came from Home Loan. Once the loan closed, LendingTree or Home Loan allegedly continued the deception by quickly selling the loan in the secondary market to the bank the borrower thought had originated the loan. Thus, when the coupon book arrived at the borrower’s house, the name of the lender was Wells Fargo or Bank of America, not Home Loan Center. The borrowers were not informed that no outside bank had competed for their business, and the loans had really originated with Home Loan.
Appellants are three LendingTree customers who sued LendingTree and Home Loan in 2006, alleging causes of action under California’s Unfair Competition Law (UCL) and its Fair Advertising Law (FAL) and under the Consumer Legal Remedies Act (CLRA). They moved to certify a nationwide class under the third amended complaint in 2009.
Two other plaintiffs, Elliott Schnee and Travis Rivier, did not join in the motion for class certification as potential class representatives.
The trial court denied the motion. It agreed that appellants had presented sufficient evidence of an ascertainable class (although it restricted the class to California residents only), numerosity, and adequacy of representation by both class representatives and class counsel. It also found that appellants had made an adequate showing of reliance on the advertising and causation – the advertising had induced them to sign up for loans. Appellants had not carried their burden, however, to show that common issues of law and fact predominated over individual issues or that the class representatives were typical of the class. The class representatives had failed to show that they had standing to sue under the UCL, the FAL, and the CLRA, because they had failed to present any evidence of damage or lost money as a result of the alleged deception, an indispensible prerequisite to standing under all three acts. They had also failed to articulate a reasonable method of proving class-wide damages or entitlement to restitution.
After the court limited the class to California residents, which limitation appellants accepted, one of the moving parties could no longer be a class member, because he is a Tennessee resident who had obtained a loan for real property in Tennessee. For some reason, however, appellants have included him in this appeal. Because he can no longer be considered a class member under the limited class definition, we do not consider any evidence with respect to him.
Even if appellants waived damages or restitution and requested injunctive relief only, the trial court found they had failed to show that a class action was superior to an individual action. They could proceed as individuals to halt what they considered deceptive advertising; this would have the same effect on the advertising as a class proceeding.
Appellants timely appealed from the order denying class certification.
DISCUSSION
Courts have long acknowledged the importance of class actions to our judicial system. By providing a means to resolve many individual claims at once, the class suit both eliminates repetitious litigation and allows the small claimant to obtain redress. But because group action can also create injustice, trial courts must carefully weigh their benefits and burdens. Class actions are allowed only when substantial benefits accrue both to litigants and to the courts. (Lebrilla v. Farmers Group, Inc. (2004) 119 Cal.App.4th 1070, 1074.)
Code of Civil Procedure section 382 authorizes class suits in California. 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. 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. (Lebrilla v. Farmers Group, Inc., supra, 119 Cal.App.4th at p. 1074.) As the moving parties, appellants had the burden of establishing the necessary elements of class certification. (See Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.)
Ordinarily, appellate review is not concerned with the trial court’s reasoning, but only with whether the result was correct. On appeal from the denial of class certification, however, we review the trial court’s reasoning and ignore any other grounds that might support denial. (Bartold v. Glendale Federal Bank (2000) 81 Cal.App.4th 816, 829.) If any stated reasons justify the order, it must be upheld. (Linder v. Thrifty Oil Co., supra, 23 Cal.4th at p. 436.)
I. The Statutory Bases of Liability
A. The UCL
The UCL, Business and Professions Code sections 17200 et seq., prohibits unfair, unlawful, or fraudulent business acts or practices. Its “purpose is to protect both consumers and competitors by promoting fair competition in commercial markets for goods and services.” (Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 949.) Although liability under the UCL is broadly defined, remedies are restricted. Only injunctive relief and restitution are available; damages are not. (Buckland v. Threshold Enterprises, Ltd. (2007) 155 Cal.App.4th 798, 812, disapproved on other grounds in Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310 (Kwikset).)
In 2004, voters amended Business and Professions Code section 17204 to require private plaintiffs to plead and prove injury in fact and lost money or property caused by the prohibited act or practice. This amendment was intended to eliminate lawsuits driven by attorneys seeking large fee awards from representative actions where no actual injury or loss had occurred. At the same time, Business and Professions Code section 17203 was amended, requiring anyone pursuing representative claims both to meet the new standing requirements and to fulfill the conditions for a class action set forth in Code of Civil Procedure section 382. (See Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 228.)
In 2009, the California Supreme Court decided In re Tobacco II Cases (2009) 46 Cal.4th 298, articulating how the (relatively) new standing requirements of Business and Professions Code section 17204 intersected with class actions. The court held that the standing requirements applied only to the potential class representatives, not to the unnamed class members. (Id. at p. 306.)
B. The FAL
Business and Professions Code section 17500 prohibits the making or disseminating of advertising that is “untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading....” Actual deception is not required; advertising that tends to deceive or mislead, even if accurate at some level, is also actionable under this statute. (Day v. AT & T Corp. (1998) 63 Cal.App.4th 325, 332.)
At the time voters amended the UCL to require actual injury and lost money or property for standing, they made the same changes in the FAL. (Californians for Disability Rights v. Mervyn’s, LLC, supra, 39 Cal.4th at p. 229, fn. 2.) A plaintiff proposing to act as a class representative must present evidence of injury in fact and loss of money or property caused by a violation of the FAL and conform to the requirements of Code of Civil Procedure 382. (Bus. & Prof. Code, § 17535.)
C. The CLRA
The CLRA prohibits a list of “unfair methods of competition and unfair or deceptive acts or practices” used in the sale of consumer goods or services. (Civ. Code, § 1770, subd. (a).) A consumer who has “suffer[ed] any damage” as a result of the prohibited acts or practices can bring an action on his own behalf and also on behalf of “other consumers similarly situated” who have also been damaged. (Civ. Code, §§ 1780, subd. (a); 1781, subd. (a).) Thus, “[r]elief under the CLRA is specifically limited to those who suffer damage, making causation a necessary element of proof.” (Wilens v. TD Waterhouse Group, Inc. (2003) 120 Cal.App.4th 746, 754.) Unlike the UCL, the CLRA requires a showing of damage to each class member. (Steroid Hormone Product Cases (2010) 181 Cal.App.4th 145, 155, 156.) “‘Any damage, ’” however, is not restricted to actual monetary damages; it may encompass restitution. (Id. at p. 156, quoting Meyer v. Sprint Spectrum L.P. (2009) 45 Cal.4th 634, 640.) It may also encompass lost opportunity costs and transaction costs caused by the prohibited practice. (Meyer v. Sprint Spectrum L.P., supra, 45 Cal.4th at p. 643.)
Because the CLRA defines “consumer” to mean “an individual who seeks or acquires... services for personal, family, or household purposes” (Civ. Code, § 1761, subd. (d)), a LendingTree borrower who obtained a loan for a commercial purpose would not have standing to sue under this statute.
Civil Code section 1781 governs CLRA claims brought as class actions. If the conditions of this section are met, the court must certify a class. One such condition is “The questions of law or fact common to the class are substantially similar and predominate over the questions affecting the individual members.” (Civ. Code, § 1781, subd. (b)(2).)
II. Lack of Standing
For each of the statutes upon which appellants based their third amended complaint, damages or lost money is a critical component of standing. Inexplicably, appellants appear to have overlooked this issue when they moved to certify the class. Their sole nod to the issue of damages or lost money in the declarations of appellants Jude Lauren and Gustavo Tuntisi, the proposed class representatives, was a conclusory, boilerplate statement: “I lost money or property as s result of LendingTree’s and Home Loan Center’s false advertisements and deceptive practices in that I accepted a loan that was priced higher than what would have been available as a result of actual competition among lenders.” Appellants simply assumed what they had to prove. They made no attempt at all to establish standing for the class members under the CLRA, which requires not only class representatives but also class members to show damage. (Steroid Hormone Product Cases, supra, 181 Cal.App.4th at p. 156.)
Respondents objected to this statement as to both Lauren and Tuntisi as lacking in foundation, and the trial court sustained the objection.
Since the trial court denied appellants’ motion, the California Supreme Court has issued its opinion in Kwikset, supra, 51 Cal.4th 310, discussing again the standing requirement in UCL and FAL class actions. The class representatives in Kwikset alleged that they were deceived into buying the defendant’s locksets by the false label “Made in U.S.A.” This court affirmed the sustaining of defendant’s demurrer on the ground that the plaintiffs had got what they paid for – locksets – and the fact that the locksets were not entirely American-made did not qualify as a loss of money or property under the UCL or the FAL.
The Supreme Court reversed. The allegations that plaintiffs bought the locksets believing they were American-made and would not have bought them at all had they known the truth satisfied the standing requirement at the demurrer stage. (Kwikset, supra, 51 Cal.4th at p. 327.) The money they paid for the locksets was the “lost money” required for standing.
The circumstances are different here. Appellants allege that they were deceived by LendingTree’s advertising into believing that outside banks were competing for their business and that, as a result of this deception, they overpaid for the loans. They wanted loans; however, they claim they should have had cheaper loans. Their theory is not, like the Kwikset plaintiffs’, that they paid for something they did not want. Their theory is that they paid too much for something they did want. (See In re Vioxx Class Cases (2009) 180 Cal.App.4th 116, 122 (Vioxx) [plaintiffs sought difference under UCL, FAL, and CLRA between price paid for Vioxx and cost of cheaper generic pain reliever].) They seek to keep these loans and obtain the difference between the loans they got and the hypothetical loans they would have received if outside banks had really been competing. This is their “lost money.”
Appellants presented no evidence whatsoever about these hypothetical loans. They gave the trial court nothing to suggest that they would have done any better with an outside bank. As the court stated in Vioxx, “While the... language of Business and Professions Code section 17203 is so broad as to allow restitution without individual proof of injury, it is not so broad as to allow recovery without any evidentiary support.... The difference between what the plaintiff paid and the value of what the plaintiff received is a proper measure of restitution.... In order to recover under this measure, there must be evidence of the actual value of what the plaintiff received. When the plaintiff seeks to value the product received by means of the market price of another, comparable product, that measure cannot be awarded without evidence that the proposed comparator is actually a product of comparable value to what was received.” (Vioxx, supra, 180 Cal.App.4th at p. 131.)
Appellants made no showing that they lost money or property as a result of the advertising or of lack of competition, and they therefore do not have standing to proceed as class representatives in a UCL or an FAL class action. (In re Tobacco II Cases, supra, 46 Cal.4th at p. 306.) Likewise, they presented the trial court with no evidence that they and the proposed class had suffered “any damage” in the form of more expensive loans, transactional costs, lost opportunity costs, or any other category of damage; they also lacked standing under the CLRA.
Appellants have now formulated a series of arguments, presented in this court for the first time, to make up for the lack of evidence of damage or lost money in their original motion. These arguments are presented, for the most part, without the benefit of any supporting case law or other authority. They include (1) appellants’ failure to receive “the benefit of the[ir] bargain, ” (2) respondent LendingTree’s failure to provide them with competitive loan-shopping services, (3) LendingTree’s failure to supply the “primary advertised attribute” of the loan, (4) the lack of “equivalent value, ” (5) presumed damages in cases of price fixing.
The import of this phrase is obscure, and it is not illuminated by citation to any authority. Appellants appear to be arguing that defendants’ advertising of their services confers economic value on a loan independent of or in addition to its actual terms. When the advertising turns out to be false, the consumer is cheated of this value. This interesting theory was not mentioned in the trial court.
Appellants did not raise any of these issues or arguments in the trial court. “‘A party is not permitted to change his position and adopt a new and different theory on appeal....’ The principles of ‘theory of the trial’ apply to motions....” (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 29.)
Strictly speaking, we do not have to consider any of these belatedly raised theories. (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 847.) Even if we did, they all founder on the same rock that wrecked appellants in the trial court – lack of evidence. Where is the evidence that appellants did not receive the benefit of their bargain or equivalent value? They bargained for the best loan terms – interest rate, points, etc. – that competition among the LendingTree network banks could afford them. How could the trial court tell whether they got these terms or not? Where is the evidence appellants lost money because they did not receive competitive loan-shopping services, in light of the fact that the banks, not the borrowers, pay LendingTree’s fees? How does one determine the value of a loan’s “primary advertised attribute, ” whatever that may mean, so that one can tell whether appellants are really worse off?
As to price-fixing, appellants have not begun to establish that any price-fixing ever took place. (See generally Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, disapproved on other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512.) How, for example, did they plan to get around the rule that a parent and a subsidiary cannot conspire together? (People’s Choice Wireless, Inc. v. Verizon Wireless (2005) 131 Cal.App.4th 656, 669.)
Appellants also argue in this court, again for the first time, that appellant Lauren has established standing because she agreed to an 8.5 percent loan and received instead a 10.25 percent loan. The difference, the amount she paid over the 8.5 percent loan, is the money she lost.
Perhaps Lauren can sustain a UCL cause of action on this theory. This is not, however, the theory upon which the class action is based. The complaint alleges that LendingTree’s advertising deceived the class into believing independent banks, not LendingTree’s tame lender, were bidding for their business. Appellants speculated, although they could not explain how they could prove, that they would have received better loan terms if the independent banks had really been bidding. The complaint did not advance the theory that class members agreed to loan A at X percent interest rate and instead received loan B at X plus 2 percent. If this is what happened to Lauren, it appears to have happened to her alone. Her experience is not typical of the class appellants sought to certify.
III. Predominance of Individual Issues
As courts have frequently pointed out, injunctive relief is the primary remedy for a UCL or FAL violation. (See. e.g., Kwikset, supra, 51 Cal.4th at p. 337; Clayworth v. Pfizer, Inc. (2010) 49 Cal.4th 758, 790; In re Tobacco II Cases, supra, 46 Cal.4th at p. 319; ABC Internat. Traders, Inc. v. Matsushita Electric Corp. (1997) 14 Cal.4th 1247, 1269.) The point is to stop the unfair, unlawful, or fraudulent business practice or the deceptive advertising. (In re Tobacco II Cases, supra, 46 Cal.4th at p. 312 [focus on defendant’s conduct, not plaintiff’s damages, to protect public].) Restitution is an ancillary remedy. (Id. at p. 319.)
Even though restitution is secondary to injunctive relief, the same overriding inquiry of a class certification motion still obtains: is it better for the court and for the litigants to have this case proceed as a class action or as individual lawsuits? (Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1108.) This inquiry informs the restitutionary portion of the proposed class action as well as its other aspects. The moving parties have the burden of demonstrating the predominance of common issues over individual ones here as well as elsewhere.
Restitution under the UCL consists of two components: “the offending party must have obtained something to which it was not entitled and the victim must have given up something which he or she was entitled to keep.” (Day v. AT & T Corp., supra, 63 Cal.App.4th at p. 340; see also Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1149 (Korea Supply) [restitution returns funds in which plaintiff has ownership interest].) Although the absent class members do not need to meet standing requirements in order for a class to be certified, they still have to be entitled to restitution or injunctive relief in order to be included in the class. (Pfizer Inc. v. Superior Court (2010) 182 Cal.App.4th 622, 631-632.) Restitution is likewise one of the remedies available to plaintiffs under the FAL and the CLRA. (Colgan v. Leatherman Tool Group, Inc. (2006) 135 Cal.App.4th 663, 694 (Colgan).)
Appellants contend that the class overpaid LendingTree and Home Center for their loans, because of lack of competition, and they want the amount of overpayment back. What they had to show the trial court was how they were going to present evidence of this amount in a way compatible with a class action.
It is generally a bad sign when parties begin proffering in their reply briefs theories that should have been front and center at the outset. It is even worse when the theories surface for the first time at the hearing. Worst of all is the appearance of a new theory on appeal.
The theory presented in appellant’s motion was that the class members “overpaid for their loans” and were charged “inflated loan rates that were not competitive.” When respondents pointed out in their opposition that appellants had failed to explain how they planned to prove this, appellants hastened to propose three possible theories in the reply. The first was the “statistical comparison” from LendingTree’s records of borrowers who got their loans from the competing banks in the LendingTree network and borrowers who got their loans from Home Loan. Presumably this comparison would demonstrate that the class members (the California Home Loan borrowers) paid more for their loans than the borrowers who obtained their loans directly from independent banks. At least, appellants hoped it would.
To support this theory, appellants referred the court to the deposition of one of LendingTree’s witnesses, who opined that she could probably generate a report that would state the average Home Loan interest rate in December 2004 for a 30-year, fixed rate loan for a person with a FICO score of 680 and higher and a loan-to-value ratio of 80 percent. She could also generate a report for the same variables and a loan-to-value ratio of 90 percent. She could also generate a report with the same variables and a different time period. Given that the class period was December 1, 2004, to the present, this kind of thing would rapidly get out of hand and destroy the efficiencies of a class action. Moreover, even if LendingTree could generate reports of average Home Loan interest rates for each month for each kind of loan and each relevant FICO score and each relevant loan-to-value ratio, this would still not be enough. For one thing, an “average” interest rate does not tell anything about whether an individual class member was entitled to restitution or damages. For another, these numbers would have to be compared to the interest rates available from independent banks for the same kinds of loans during the same time periods. Appellants presented no evidence about where this information would come from, or whether it would be meaningful if it did appear.
As the court observed, repeatedly, appellants had failed to present any evidence to support this theory. What about fluctuations of interest rates? What about differences in borrower qualifications and the kind of loan sought? Is it possible to compare loans in this way so that apples and apples (a loan with all the same variables as to both loan and borrower) are really being compared? What are the chances of getting a true match between a Home Loan California borrower’s loan and a network bank borrower’s loan, and would any such match be meaningful and not just random? As the court finally said in despair, “I’m not an economist. I’m not a banker.... I think you would need an expert on that.” (See Colgan, supra, 135 Cal.App.4th at pp. 675-677, 700.)
The second theory advanced in the reply brief, and at the hearing as well, was that LendingTree made money by selling borrowers’ personal information to banks, and this money ought to be refunded to the class. The two main problems with this ad hoc theory, however, were, first, it was not the basis for certifying the class, and, second, not a scrap of evidence supported it. Moreover, even if there had been any such evidence, this would not satisfy the UCL’s and FAL’s “lost money or property” requirement or CLRA’s “damages.” It was undisputed that borrowers paid no fees for LendingTree’s services. Even if LendingTree did sell a borrower’s information to banks, the person lost no money as a result. Non-restitutionary recovery is not a permitted remedy under the UCL or the FAL. (Korea Supply, supra, 29 Cal.4th at p. 1149; Colgan, supra, 135 Cal.App.4th at pp. 696-697.) Nor did appellants explain how such payments would result in damage to consumers under the CLRA.
Finally, appellants argued that what investors in the secondary market paid to purchase the loans “may serve as a statistical measure of overpayment.” Or, they speculated, maybe borrowers should not have had to pay closing costs, because their interest rates were higher than they should have been. Once again, there was no evidence to support either one of these last-ditch theories as a proper measure of lost money or actual damages.
As the trial court pointed out, argument is not evidence (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 139), and evidence of how restitution or damages could be determined was missing.
At the hearing, appellant floated another theory of damages, again without any evidentiary support. This one was that LendingTree received a closed loan fee from Home Loan for every successful loan. This, counsel claimed was unjust enrichment, and this money belonged to the class. This is yet another example of non-restitutionary recovery, which is not permitted under Korea Supply, supra.
Finally, as discussed above, appellants present to this court a batch of new damage theories – equivalent value, primary advertised attribute, fixed prices and so on – that suffer from the same deficiency that troubled the trial court – lack of evidence. This deficiency is especially conspicuous for these theories, which have all the appearance of being afterthoughts.
Appellants’ inability to articulate a coherent theory scuttled their chances of showing that common issues predominated over individual ones. Appellants now argue that the trial court impermissibly focused on proving the amount of damages or lost money.
What appellants have failed to appreciate is the difference between being able to establish the amount of damages and being able to establish the existence of damages or lost money. How did Lauren and Tuntisi as class representatives propose to show that they and the class were entitled to any restitution at all, regardless of amount?
The obvious way – what the trial court termed the old-fashioned way – was for each plaintiff to say something like, “Here is the loan I got from LendingTree, and here is a loan with the same terms offered by Wells Fargo at the same time, for which I would have qualified, and the interest rate is lower.” This kind of evidence would establish the existence of something that could be restored to the plaintiffs; the amount is a separate issue. If loans with better financial terms were not available from other banks in the Lending Tree network, no one lost money as a result of the lack of competition (UCL and FAL). The same would be true of actual damage under the CLRA; appellants made no effort to identify in their moving papers any other kinds of damage.
The problem with the old-fashioned way, as the court perceived, is that individual issues would quickly swamp the common ones, even assuming uniform exposure to LendingTree’s advertising and uniform reliance on it. What were the comparative interest rates at the time each class member obtained his or her loan? What were each borrower’s qualifications? What kind of loan was each one seeking? What was the security, and what percentage of its value were the other banks willing to lend? Would other banks have lent money to this borrower at all? And so on. “[T]he individual issues here go beyond mere calculation; they involve each class member’s entitlement to damages. Each class member would be required to litigate ‘substantial and numerous factually unique questions to determine his or her individual right to recover ....’” (Wilens v. TD Waterhouse Group, Inc., supra, 120 Cal.App.4th at p. 756, quoting Acree v. General Motors Acceptance Corporation (2001) 92 Cal.App.4th 385, 397.)
The trial court pleaded with appellants to provide some evidence of a way to tell “if the class were to prove damages, how would that be done by common method so that class action is appropriate....” Appellants were unable to provide this evidence. They did not carry their burden to show that common interests predominated over individual ones, and class certification was properly denied. (See Lockheed Martin Corp. v. Superior Court, supra, 29 Cal.4th at pp. 1109-1111.)
DISPOSITION
The order of the trial court is affirmed. Respondents are to recover their costs on appeal.
WE CONCUR: MOORE, J., FYBEL, J.