Opinion
B153535
Filed November 22, 2002
Appeal from a judgment of the Superior Court of Los Angeles County, No. BC 237274, Ann Kough, Judge. Affirmed.
Arias, Ozzello Gignac, Mike Arias, Mark A. Ozzello, J. Paul Gignac, and Arnold C. Wang; Newmeyer Dillion, Gregory L. Dillion, John A. O'Hara, and Joan M. Huckabone-Mayer; and Law Offices of Stephen Heller and Stephen Heller for Plaintiffs and Appellants.
Gordon Rees, Rudy R. Perrino, and Roger M. Mansukhani for Defendants and Respondents.
Appellants appeal the trial court order denying them class certification in their lawsuit against their landlord for breach of the warranty of habitability. We agree with the trial court that the lawsuit presented no well-defined community of interest in questions of law and fact, and so affirm the ruling.
FACTS
Although appellants' brief on appeal describes the "horrible experiences" suffered by the tenants of the 748 apartment units comprising the complex, we limit our review to the allegations of the complaint.
Appellants are four former residents of Lakeside Apartments, a 748-unit apartment complex encompassing 29 buildings in Burbank. Appellants each signed a lease which contained an implied warranty of habitability. Appellants sued respondents, the owners and managers of the Lakeside Apartments, on behalf of themselves and all other current and former residents of the apartment complex.
Two additional named plaintiffs were visitors to the apartments. Appellants' briefs do not indicate the current status of the visitor plaintiffs.
The second amended complaint, the operative pleading herein, defined the class as follows: "The Plaintiff Class consists of all persons who were, or are, residents of the apartment units owned by AVALONBAY COMMUNITIES, INC. and located at 401 Pass Avenue, Burbank, California, who have been exposed to toxic materials in the apartments including, without limitation, to bioaerosols emanating from excessive levels of mold, mildew and fungus and/or pesticides and/or other chemicals." The complaint alleged, on behalf of the entire class, that "Defendants have breached this implied warranty of habitability in numerous ways, including, without limitation, the following:
"(a) Allowing water to intrude into the apartments and cause mold, mildew and fungus to grow throughout the building which in turn has caused termite infestation;
"(b) Failing to repair, in a timely and reasonable manner, the defective conditions of the building that are allowing the water to intrude into the building;
"(c) Failing to abate the mold and termite conditions throughout the apartments that are seriously damaging the health of Plaintiffs and their enjoyment of their apartment;
"(d) Disturbing Class Plaintiffs with excessive noise, dust and debris from construction work done at Lakeside;
"(e) Causing the construction to start unreasonably early in the morning thus seriously affecting Class Plaintiffs' sleep patterns and their quiet enjoyment of their apartments;
"(f) Forcing Class Plaintiffs out of their apartments from time to time because of the ongoing construction; and,
"(g) Failing to maintain appliances, electrical fixtures, and walls within Lakeside Apartments."
The complaint sought breach of warranty of habitability damages equal to the difference between the rent paid and the rental value of the uninhabitable apartments. The complaint also alleged various tort causes of action, and sought personal injury damages.
Respondents filed a motion to strike the class action allegations from the complaint. After a hearing on the matter, the court granted the motion. Appellants challenge that ruling only as it applies to the cause of action for breach of the warranty of habitability, based on the holding in Hicks v. Kaufman Broad Home Corp. (2001) 89 Cal.App.4th 908.
DISCUSSION
"Section 382 of the Code of Civil Procedure authorizes class 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 v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435 omitted.)
The Supreme Court in Vasquez v. Superior Court (1971) 4 Cal.3d 800 explained the community of interest requirement as follows: "The requirement of a community of interest does not depend upon an identical recovery, and the fact that each member of the class must prove his separate claim to a portion of any recovery by the class is only one factor to be considered in determining whether a class action is proper. The mere fact that separate transactions are involved does not of itself preclude a finding of the requisite community of interest so long as every member of the alleged class would not be required to litigate numerous and substantial questions to determine his individual right to recover subsequent to the rendering of any class judgment which determined in plaintiffs' favor whatever questions were common to the class." ( Id. at p. 809.)
"Procedurally, where there is a `reasonable possibility' that the plaintiff in a class action can establish a community of interest among potential claimants, the preferred course is to defer decision on the propriety of the class action until an evidentiary hearing has been held on the appropriateness of class litigation. ( Beckstead v. Superior Court (1971) 21 Cal.App.3d 780, 783; see also, Vasquez v. Superior Court [(1971) 4 Cal.3d 800] pp. 820-821; La Sala v. American Sav. Loan Assn. (1971) 5 Cal.3d 864, 876.) But when the complaint on its face fails to contain sufficient allegations of fact to establish a class interest, the class issue may be properly disposed of by demurrer. ( Bartlett v. Hawaiian Village, Inc. (1978) 87 Cal.App.3d 435, 437-438; see also, Diamond v. General Motors Corp. (1971) 20 Cal.App.3d 374, 381; Bozaich v. State of California (1973) 32 Cal.App.3d 688, order striking class allegations from complaint.)" ( Rose v. Medtronics, Inc. (1980) 107 Cal.App.3d 150, 154.)
Moreover, "Because trial courts are ideally situated to evaluate the efficiencies and practicalities of permitting group action, they are afforded great discretion in granting or denying certification. The denial of certification to an entire class is an appealable order [citation], but in the absence of other error, a trial court ruling supported by substantial evidence generally will not be disturbed `unless (1) improper criteria were used [citation]; or (2) erroneous legal assumptions were made. [Citations.]' Under this standard, an order based upon improper criteria or incorrect assumptions calls for reversal `"even though there may be substantial evidence to support the court's order."' [Citation.] Accordingly, we must examine the trial court's reasons for denying class certification. `Any valid pertinent reason stated will be sufficient to uphold the order.'" ( Linder v. Thrifty Oil Co., supra, 23 Cal.4th at pp. 435-436.)
The trial court below determined that appellants had failed to meet the community of interest requirement for proceeding in a class action. Said the court: "Although an ascertainable class, or rather three subclasses, exists, there is no well-defined community of interest in the questions of law and fact involved. While individualized proof of damages does not necessarily defeat class certification, individualized proof of the elements of liability and causation does. See Hicks v. Kaufman and Broad (2001) 89 Cal.App.4th 908. Here for each of the negligence based causes of action [including also the breach of implied warranty and nuisance cause of actions], each purported class member would have to prove exposure to a particular toxic substance, the timing of such exposure, and the effect of such exposure; Defendants would legitimately seek to present evidence of exposure other than at the apartment complex for each class member."
The sole issue on appeal is whether the trial court abused its discretion in concluding that appellants had failed to make the threshold showing that there are predominant common questions of law and fact applicable to the class as a whole, such that class certification is appropriate. As noted above, appellants rely on the holding of Hicks v. Kaufman Broad Home Corp., supra, 89 Cal.App.4th 908 to establish the trial court's error.
In Hicks, homeowners brought a class action lawsuit against the developer who built and sold their homes, alleging that "the concrete slab foundations under their homes are `inherently defective' because Kaufman constructed them using Fibermesh, a polypropylene product, instead of welded wire mesh." ( Hicks v. Kaufman Broad Home Corp., supra, 9 Cal.App.4th at p. 912.) Plaintiffs' complaint alleged causes of action for strict liability, negligence, and breach of express and implied warranties, on behalf of themselves and others similarly situated. The class was defined as "All persons or entities who own one or more homes [in specified Kaufman developments] which were constructed and marketed by [Kaufman] in which `Fibermesh,' a polypropylene product, was utilized in the concrete foundation slabs as a substitute for 6×6, 10×10 welded wire mesh with manifested damage or defect due to the Fibermesh substitution." ( Ibid.) The complaint sought "compensatory damages associated with the repair and/or replacement of the concrete foundations" of the subject homes. ( Ibid.)
The trial court denied class certification and dismissed all class allegations, because the class was not reasonably ascertainable, and the causes of action lacked common issues of fact. The Court of Appeal concurred with the trial courts ruling that the tort causes of action could not be certified as a class action, "because the elements of liability and causation cannot be established without individualized proof as to each of the purported 10,000 class members." ( Hicks v. Kaufman Broad Home Corp., supra, 89 Cal.App.4th 913.) However, the appellate court found that the causes of action for breach of express and implied warranties were appropriate for class certification, explaining that "the existence of a common inherent defect was a question of fact common to the class which, if established, would support recovery on a breach of warranty theory." ( Id. at p. 918.)
The common inherent defect in Hicks was the defendant's use of Fibermesh in the construction of the concrete slab foundations of the plaintiffs' homes. The plaintiffs' contention in Hicks was that "to prove breach of express and implied home warranties they only need to prove Fibermesh is an inherently defective product the use of which is substantially certain to lead to foundation failure." ( Hicks v. Kaufman Broad Home Corp., supra, 89 Cal.App.4th at p. 917.) The plaintiffs offered the declaration of an expert who opined: "Fibermesh allows the cracks to separate, causing a loss of the interlock of the aggregate . . . slab. . . . [S]lab replacement is necessary to correct the problem, regardless of the condition of the slab at the present time. Whether any particular slab has actually yet cracked, and or the width of any particular crack at the present time, are not material factors. . . ." ( Ibid.) The defendants in Hicks maintained that, in order to establish a breach of warranty, "each class member would have to produce evidence his or her Fibermesh foundation has cracked or split in a way which would not have occurred if the foundation had been constructed using welded wire mesh. Producing this proof would require taking and analyzing core samples from the foundations of all class members' homes, which plaintiffs themselves allege number in the thousands." ( Ibid.)
The Court of Appeal in Hicks concluded that "proof of breach of warranty does not require proof the product has malfunctioned but only that it contains an inherent defect which is substantially certain to result in malfunction during the useful life of the product." ( Hicks v. Kaufman Broad Home Corp., supra, 89 Cal.App.4th at p. 918.) For that reason, liability was premised on the fact that an inherently defective product was used, and not on the particular condition of each individual home.
Appellants here analogize the holding of Hicks to the instant case by arguing that "the `wire mesh' for [appellants] is the uninhabitable conditions at the apartment complex. According to Hicks, in order for [appellants] to establish the Breach of Implied Warranty, [appellants] only have to prove uninhabitable conditions existed, not that personal injuries resulted from those conditions."
In Hicks, each of the subject homes contained an easily identifiable product, Fibermesh, which the plaintiffs claimed was inherently defective. The representative plaintiffs could establish the defendants' liability to each of the class members for breach of warranty by proving that Fibermesh contains an inherent defect which was substantially certain to cause the slab foundation to malfunction during the useful life of the home. While damages in the form of repair and replacement costs would vary among class members, those damages would likely be calculated by use of a formula based, for instance, on the size of each home's slab foundation. Individual class members would not be required to present evidence of the conditions peculiar to their particular property.
Here, by contrast, the representative plaintiffs allege no common defect in the apartments of class members which, if proved, would establish that the apartments are uninhabitable. Rather, one apartment may have water intrusion causing dampness, or mold, or termite infestation, any of which may be barely noticeable or may substantially interfere with the tenant's use and enjoyment of the premises. Another apartment may have no water intrusion problems, but may lack heat, or hot water, or one or more electrical outlets. Still another tenant may have been greatly disturbed by construction noise and debris, while his next door neighbor may have slept through the noise, or worked off-premises during the hours of construction. There is simply no way to identify which apartment had which defect without eliciting the testimony of each and every tenant involved. As the trial court concluded, that fact renders this action inappropriate for class treatment.
In short, the trial court acted well within its discretion in concluding that appellants failed to satisfy the community of interest requirement for prosecuting their lawsuit as a class action.
Neither did the trial court abuse its discretion in denying leave to amend. Plaintiffs sought such leave in order to eliminate the personal injury claims which they recognized were inconsistent with class action status. The court responded to that request, as follows: "The Court seriously considered Plaintiffs' request that they be allowed leave to amend to replead their class allegations; the Court finds that no amendment will cure the problems and Plaintiffs can never realistically prove community of interest in law and facts concerning liability and causation, either as to the personal injury cause of actions or the remaining cause of actions." Thus, the court ruled that, even without the personal injury causes of action, the complaint failed as a class action. And indeed, we have reviewed the complaint as if there were no claims for personal injuries. Consequently, the trial court properly concluded that leave to amend would not cure the defects of the complaint.
In their reply brief, appellants state: "Time and time again, actions claiming Breach of Warranty of Habitability have been certified as class actions under Rule 23 of the Federal Rules of Civil Procedure," and cite several federal cases. The cited cases do not support appellants' position. Johns v. Rozet (D.D.C. 1992) 141 F.R.D. 211 asserted claims of uninhabitability of common areas alone, which claims do not present the problems of proof present in this case, where appellants seek to establish that individual apartments were uninhabitable. And in Kingston Square Tenants Association v. Tuskegee Gardens, Ltd. (S.D. Fla. 1994) WL 808074, the commonality requirement was not at issue, since "the defendant has not challenged the plaintiff's showing of commonality under Rule 23(a)(2), apparently conceding that there is a uniform course of conduct applied to all tenant family class members."
DISPOSITION
The judgment is affirmed.We Concur:
GRIGNON, Acting P.J.
MOSK, J.