Metropolitan News-Enterprise


Tuesday, July 30, 2019


Page 1


California Supreme Court:

Class May Be Certified Without Plan for Notification


By a MetNews Staff Writer


The California Supreme Court yesterday reversed a Court of Appeal decision that affirmed the denial of class certification because the plaintiff failed to put forth a plan for notifying affected consumers.

Writing for a unanimous court, Chief Justice Tani Cantil-Sakauye declared that “[a]s a rule, a representative plaintiff in a class action need not introduce evidence establishing how notice of the action will be communicated to individual class members in order to show an ascertainable class.”

The Chief Justice looked at cases on class actions, starting with one of the first: a 1948 state high court decision which shunted a putative class action filed in Los Angeles Superior Court to the Justice’s Court for Pasadena Township. Four plaintiffs each sought a statutory penalty of $100 based on being denied admission to the 1947 Rose Bowl game, and purported to act “on behalf of themselves and all others similarly situated.”

According to their allegations, only 1,500 of the 7,500 tickets were sold at the box office; the remaining tickets were the subject of private sakes or gifts. The Oct. 28, 1948 opinion declares:

“In the present case there is no ascertainable class, such as the stockholders, bondholders, or creditors of an organization. Rather, there is only a large number of individuals, each of whom may or may not have, or care to assert, a claim against the operators of the 1947 Rose Bowl Game for the alleged wrongful refusal of admission thereto. Each of such claimants must establish separately that he was refused admission, and that such refusal was wrongful.”

Not ‘Pellucid’

Cantil-Sakauye observed:

“Although our case law has been clear that a plaintiff must show an ascertainable class as a prerequisite to class certification, neither our decisions nor those of the Courts of Appeal have been as pellucid in explaining what this requirement entails.”

In resolving the uncertainty, the jurist pointed to 2001 Court of Appeal opinion by then-Justice Earl Johnson Jr. of this district’s Div. One in Hicks v. Kaufman & Broad Home Corp. Quoting from that decision, she said:

“[W]e conclude that the functions properly assigned to the ascertainability requirement are best served by regarding a class as ascertainable when it is defined ‘in terms of objective characteristics and common transactional facts’ that make ‘the ultimate identification of class members possible when that identification becomes necessary.’ ”

Requirement Met

Cantil-Sakauye continued:

“This standard was satisfied here because the class definition provided a basis for class members to self-identify. The courts below erred in importing an additional evidentiary burden into the ascertainability requirement.”

Due process is satisfied, she declared, if a class is defined “in objective terms that make the identification of class members possible” without a need to personally notify every member of the class.

The proposed class is comprised of purchasers from Rite-Aid stores in California over the four years preceding the filing of the complaint in Marin Superior Court of an inflatable wading pool marketed as “Kids Stuff Ready Set Pool 8FT X 25IN.” Upon inflating the pool, the named plaintiff ascertained that it was smaller than what was depicted on the box.


The package containing an inflatable wading pool depicts roominess. According to the complaint in a putative class action, the photo is deceptive


A photo appears of three adults and two children in the pool. In a shot submitted by the plaintiff, three children are seen in the pool, cramped.


The plaintiff insists the photo above shows the actual size of the product.


Discovery showed that 20,752 of the pools were sold during the relevant time period, with 2,479 of them being returned). Revenues from the sales amounted to nearly $1 million—the precise figure being $949,279.34.

Cantil-Sakauye remarked:

 “[G]iven the modest amount at stake (the pool having retailed for $59.99), the odds that any class member will bring a duplicative individual action in the future are effectively zero. Thus the true choice in this case is not between a single class action challenging the packaging of the Ready Set Pool and multiple individual actions pressing similar claims; it is between a class action and no lawsuits being brought at all.”is Noel v. Thrifty Payless, 2019 S.O.S. 3635.


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