Monday, November 28, 2011
C.A. Upholds Class Action Denial in Suits Over Car Battery Sales
By KENNETH OFGANG, Staff Writer
A Los Angeles Superior Court judge did not abuse his discretion in denying class certification of two lawsuits accusing the Automobile Club of Southern California of false advertising and fraud in connection with the sale of replacement car batteries to stranded motorists.
Div. Three Tuesday granted a request by a non-party, American Honda Motors, Inc., for publication of the Oct. 26 opinion in the case, affirming the orders by Judge William F. Highberger.
The case involved two consolidated actions in which plaintiffs alleged that the auto club falsely advertised that members were given discounted prices and free labor and installation when they purchased batteries through a program promoted by the club, and that members were fraudulently induced to purchase new batteries they didn’t need.
Those practices violated the Unfair Competition Law, the Consumer Legal Remedies Act, and the common law, the plaintiffs alleged.
The program was operated through a third party, a subsidiary of the Australian company Club Assist LLC. Through contracts with various AAA clubs, the third party provides trained technicians who test batteries of cars that will not start.
When called to the scene where a car will not start, the technician takes a supply of fresh batteries. If the car’s battery fails conductance tests, the technician may recommend that the battery be immediately replaced, rather than merely jump-started.
The company’s agreements with the auto clubs provide that while it can sell batteries to anyone, it will charge AAA members $25 less than non-members, making the member price somewhere from $105 to $140, depending on the battery. The price includes installation, and the local auto club gets $9 for each battery sold to a member.
Highberger ruled that the class members’ claims lacked the typicality and commonality required for the suits to proceed as class actions. He cited evidence that battery replacement was only recommended 22 percent of the time, even though the average life expectancy of a modern car battery is only three to four years.
Lack of Evidence
He also pointed out that there was no showing that any of the named plaintiffs had their batteries unnecessarily replaced, or that class members were uniformly exposed to the allegedly false advertising in the Westways magazine sent to AAA members or on the AAA website, or on the invoices, which at least one named plaintiff did not read, which were not uniform, and which were not presented to the customers until after they purchased the batteries.
Justice Walter Croskey, writing for the Court of Appeal, said Highberger used the correct legal standard.
Croskey distinguished In re Tobacco II Cases (2009) 46 Cal.4th 298, which held that Proposition 64’s limitation of standing to sue for UCL violations to those actually injured by the violation does not apply to unnamed class members. The high court’s ruling on class members’ standing, Croskey said, is irrelevant because the question of commonality differs from that of standing.
He cited Cohen v. DIRECTV, Inc. (2009) 78 Cal.App.4th 966, which held that a suit charging a satellite television provider with using false advertising to induce subscribers to purchase more expensive “high definition” services could not proceed as a class action because members of the proposed nationwide class did not share a commonality of interests.
This district’s Div. Eight held in that case that commonality was lacking because class members’ rights could vary from state to state and because many subscribers did not rely on the alleged falsehoods.
There was, Croskey went on to say, substantial evidence that the plaintiffs’ claims did not raise common issues of fact.
With respect to the alleged unnecessary replacement, he noted that of the four named plaintiffs, two did not allege that their replaced batteries could still hold a charge, one made such a claim but presented no evidence that the battery could still actually start a car, and one alleged that her boyfriend told her that her old battery was still good, but presented no evidence that it actually worked.
None of the named plaintiffs, Croskey added, claimed to have relied on advertising in agreeing to purchase a new battery.
The case is Davis-Miller v. Automobile Club of Southern California, Inc., 11 S.O.S. 6289.
Copyright 2011, Metropolitan News Company