Judge David S. Cunningham, Case Number: 21STCV30808, Date: 2025-04-22 Tentative Ruling

Judge: David S. Cunningham, Case: 21STCV30808, Date: 2025-04-22 Tentative Ruling

Moving Party: Safe-Guard Products International, LLC (“Safe-Guard” or “Defendant”)

This is a putative class action regarding vehicle-service contracts (“VSCs”). The operative complaint alleges:

2. Safe-Guard partners with major car companies and offers people that lease or purchase vehicles from those companies’ authorized dealerships ancillary vehicle service protection plans. The VSCs are offered to people concurrently or contemporaneously at the time that they enter into an agreement to lease or purchase a vehicle from an authorized dealer-partner of Safe-Guard’s. Safe-Guard charges its customers for wheel and tire protection under its VSCs, which provides that if a lessee or purchaser’s tires or wheels are damaged by covered road hazards and the VSC holder takes their vehicle for repairs at an authorized dealership, Safe-Guard will cover the cost for the repair or replacement, typically subject to a deductible.

3. Safe-Guard charges its customers extremely steep prices for its VSCs, and does not disclose that customers are unlikely to receive anything approaching equivalent value. There is no reasonable basis or justification for the steep prices that Safe-Guard charges customers for its VSCs and Safe-Guard knows that no reasonable customer could realize sufficient benefits under their VSC that would justify the price paid for the VSC. For example, the VSC for Plaintiff’s Rolls-Royce Ghost SWB cost $5776. Ultimately, Safe-Guard covered wheel/tire repairs on the vehicle amounting to only $2594.48. And according to Safe-Guard, an average person will get five flat tires in their entire lifetime of driving, meaning that the value Safe-Guard intends to provide for each VSC is a tiny fraction of its price. Indeed, Plaintiff, like many other Safe-Guard customers, has held VSCs under which he received no value whatsoever.

4. Plaintiff’s VSC with Safe-Guard for the lease of a Rolls-Royce Ghost SWB contained a tire and wheel protection provision with a $100 single deductible. Plaintiff’s VSC provided that he would only be charged a single $100 deductible per wheel/tire claim, regardless of how many times or wheels were replaced per visit/claim (“Single Deductible Provision”). Safe-Guard also offers VSCs that charge a customer on a per-wheel/tire basis, meaning that a customer will pay a deductible for each wheel/tire repaired at the time of service, and some customers may be charged a deductible in an amount other than $100. However, regardless of what type of deductible provision a customer’s VSC contains, or the amount of a customer’s deductible, the VSCs that Safe-Guard offers to its California customers are form contracts of adhesion that offer the same services with the same rights and obligations attached.

5. Despite the express and unambiguous Single Deductible Provision in Plaintiff’s Rolls-Royce VSC, Defendant improperly charged Plaintiff and other customers with Single Deductible Provisions on a per tire basis, rather than on a per claim basis, and thereby breached the contracts and violated California’s Unfair Competition Law and Consumers Legal Remedies Act. Safe-Guard also charged Plaintiff and other customers excessive fees other than deductibles that Safe-Guard should have covered under the contractual provisions of the VSCs.

6. Further, Safe-Guard’s practices and policies regarding its claims processing and contract management are rife with deficiencies of which Safe-Guard is well-aware, but has failed to address, which have placed the members of the Classes and Subclass at substantial risk of damage and improper overcharges, in addition to the overcharge every member of the class suffered at the point of sale of the VSC.

(Second Amended Complaint, ¶¶ 2-6, emphasis in original; see also id. at ¶¶ 13-37.)[1]

Here, Defendant moves to seal certain documents that were filed in support of Plaintiff’s second motion for class certification.

The court may order that a record be filed under seal only if it expressly finds facts that establish:

(1) There exists an overriding interest that overcomes the right of public access to the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

(Cal. Rules of Court, rule 2.550(d).) “These findings embody constitutional requirements for a request to seal court records, protecting the First Amendment right of public access to civil trials. (Edmon & Karnow, Cal. Practice Guide: Civ. Procedure Before Trial (The Rutter Group June 2023 Update) ¶ 9:418, emphasis in original.)

The parties’ agreement to seal documents is not enough to support a motion to seal. (Id. at ¶ 9:417.1 [“Parties sometimes operate under an informal arrangement pursuant to which documents are ‘deemed filed under seal’ unless an objection is made. Such an arrangement ‘is entirely inconsistent with the mandatory requirements of rules 2.550 and 2.551 and the constitutional values informing those requirements.’”].)

“Only the specific words of documents that constitute the sensitive material should be sealed; generally, it is not permissible to seal the entire document.” (Id. at ¶ 9:418.5.)

Defendant seeks to seal schedules 1, 2, 3, and 4 attached to the declaration of Steven Boyles and exhibits 12, 13, and 14 attached to the declaration of Jonathan Rotter. (See Notice of Motion, p. 1.)[2]

Schedules 1, 2, 3, and 4 consist of over 17,000 pages that contain, in part, third-party customers’ last names, contract-identification numbers, claim-identification numbers, “cost information underlying the pricing of [VSCs],” “deductible amounts,” and “contract terms[.]” (Motion, pp. 4-5.)

* “[t]hird-party customers have a substantial privacy interest in their information” (id. at p. 5);

* “all four schedules include confidential and commercially sensitive information concerning Safe-Guard’s business operations” (ibid.); and,

* “when compiled in its aggregate form,” the information “constitutes non-public market data that could be used against Safe-Guard by its competitors.” (Ibid.)

* the schedules list the last names of non-party customers and divulge confidential business data;

* there is a substantial probability that the overriding interest will be prejudiced if the motion is denied; and

* the sealing is narrowly tailored and the least restrictive means to protect the overriding interest.[3]

Exhibits 12, 13, and 14 are three marketing-and-administration agreements between Defendant and BMW (see Rotter Decl., Ex. 12), Defendant and Aston Martin (see id. at Ex. 13), and Defendant and Jaguar Land Rover. (See id. at Ex. 14.)

* each page of each agreement is marked “CONFIDENTIAL” (see id. at Exs. 12-14);

– the “specifics of Safe-Guard’s business relationship with dealers, including what services will be performed by the parties involved” (Motion, p. 5);

– “the specific economics underlying that business relationship, such as fees, costs and responsibilities” (ibid.); and

– “Safe-Guard[’s] processes and forms to be used in connection with this business, which have economic value” (ibid.);

* there is a substantial probability that the overriding interest will be prejudiced if the motion is denied;[4] and

* the sealing is narrowly tailored and the least restrictive means to protect the overriding interest.

[1] “Plaintiff” is Hossein Sotoodeh.

[2] Boyles is Plaintiff’s expert accountant. Rotter is Plaintiff’s attorney.

[3] Requiring Defendant to redact the names and confidential business data from over 17,000 pages would be unduly burdensome.

[4] “[P]ublic disclosure” of this information “could be [] used against Safe-Guard by Safe-Guard’s competitors.” (Ibid.)

Opposing Party: Safe-Guard Products International, LLC (“Safe-Guard” or “Defendant”)

This is a putative class action regarding vehicle-service contracts (“VSCs”). The operative complaint alleges:

(Second Amended Complaint (“SAC”), ¶¶ 2-6, emphasis in original; see also id. at ¶¶ 13-37.)

The procedural history is extensive. (See Second Motion for Class Certification, pp. 1-3; see also Opposition, pp. 5-8.) Relevantly, on October 30, 2023, Plaintiff’s first “motion for class certification came on for hearing.” (2/5/24 Ruling Re: Demurrer to First Amended Complaint, p. 1.) “[Plaintiff] sought to certify a putative class and [a putative] subclass.” (Ibid.) “The Court denied the motion without prejudice as to the putative class because it was not alleged in the complaint.” (Ibid.) “In addition, the Court denied the motion without prejudice as to the putative subclass because [Plaintiff] ‘fail[ed] to show predominating common questions, typicality, and superiority.’” (Ibid.)

The plaintiff bears the burden of demonstrating that class certification is proper. (See City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 460; see also Caro v. Procter & Gamble Co. (1993) 18 Cal.App.4th 644, 654.) He or she “must demonstrate the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives.” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021.)

A class is “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.’” (Noel v. Thrifty Payless, Inc. (2019) 7 Cal.5th 955, 980.)

“The class must be ‘numerous’ in size. But there is no fixed minimum or maximum number . . . The numerosity analysis is limited to how many individuals fall within the class definition and whether their joinder is impracticable, not how many ‘net’ class members there might be after considering affirmative defenses.” (Edmon & Karnow, Cal. Practice Guide: Civ. Procedure Before Trial (The Rutter Group June 2023 Update) ¶ 14:21, emphasis in original.)

“A party seeking class certification bears the burden of satisfying the requirements of Code of Civil Procedure section 382, including numerosity, and the trial court is entitled to consider ‘the totality of the evidence in making [the] determination’ of whether a ‘plaintiff has presented substantial evidence of the class action requisites.’” (Soderstedt v. CBIZ S. California, LLC (2011) 197 Cal.App.4th 133, 154.)

All California residents who, from August 20, 2017 to the present (both dates inclusive), were or are holders of a vehicle service contract administered by SafeGuard (or as to which Safe-Guard is the obligor) which contains a tire and wheel protection provision, and, which contains a provision stating that the customer will be charged a single deductible per visit or claim for the replacement of any tires or wheels, regardless of the number of tires or wheels replaced at the time, who were charged multiple deductibles on a per tire/wheel basis in connection with a single visit or claim.

The definition of the Unconscionable Pricing Class is overbroad and ambiguous. It is overbroad in that it covers people who did not buy a VSC – i.e., people who did not pay, and were not damaged by, the allegedly unconscionable purchase prices. (See Opposition, p. 23.) It is ambiguous in that it utilizes legal terms. A customer reading the words “unconscionable pricing” and “damaged” would not be able to “identify himself or herself as having a right to recover based on the [class] description.” (Noel, supra, 7 Cal.5^th at 979.)

Plaintiff also fails to show numerosity. He estimates that there are over 1 million members. (See Second Motion for Class Certification, p. 6.) Since the definition is overbroad and ambiguous, the estimate is speculative and fails to establish the number of members.

The definition of the Tire and Wheel Overcharge Class is fine, except the Court believes Plaintiff should delineate the specific fees, and the definition of the Single Deductible Subclass is fine as is. They both contain “objective characteristics and common transactional facts[.]” (Noel, supra, 7 Cal.5^th at 979.)

Numerosity is not satisfied as to the Tire and Wheel Overcharge Class. To demonstrate the size of the overcharge class, Plaintiff cites the size of the Single Deductible Subclass (see Second Motion for Class Certification, pp. 6-7), yet the class definition excludes customers who paid deductibles. The size of the subclass is not a reliable indicator. (See also Reply, p. 14 [stating that Plaintiff needs “additional discovery . . . to establish the approximate number of members”].)

Numerosity is satisfied as to the Single Deductible Subclass. The Court previously found that there are at least nine potential members of the subclass. (See 10/30/23 Ruling Re: Motion for Class Certification, p. 4.) Nine is adequate. (See ibid.)

“[T]he proponent of certification must show, inter alia, that questions of law or fact common to the class predominate over the questions affecting the individual members[.]” (Washington Mutual Bank, FA v. Superior Court (2001) 24 Cal.4^th 906, 913.) This means “each member must not be required to individually litigate numerous and substantial questions to determine his [or her] right to recover following the class judgment[.]” (Edmon & Karnow, supra, at ¶ 14:11.6.) “[T]he issues which may be jointly tried, when compared with those requiring separate adjudication, must be sufficiently numerous and substantial to make the class action advantageous to the judicial process and to the litigants.” (Ibid.)

“As long established under California law, the doctrine of unconscionability reaches contract terms relating to the price of goods or services exchanged.” (De La Torre v. CashCall, Inc. (2018) 5 Cal.5^th 966, 975.)

“Unconscionability is a flexible doctrine.” (Id. at 982.) “It is meant to ensure that in circumstances indicating an absence of meaningful choice, contracts do not specify terms that are ‘overly harsh,’ ‘unduly oppressive,’ or ‘so one-sided as to shock the conscience.’” (Ibid.) “Nonetheless, at least one thing about the doctrine is clear: it requires more than just looking at one particular term in a contract, comparing it to a fixed benchmark, and declaring the term unconscionable.” (Ibid.)

“[U]nconscionability requires oppression or surprise – that is, procedural unconscionability – along with the overly harsh or one-sided results that epitomize substantive unconscionability.” (Ibid.) “Some measure of both procedural and substantive unconscionability must be present – although given the sliding-scale nature of the doctrine, more of one kind mitigates how much of the other kind is needed.” (Ibid.)

Procedural unconscionability “generally takes the form of a contract of adhesion, ‘“which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it.”’” (Little v. Auto Stiegler, Inc. (2003) 29 Cal.4^th 1064, 1071.)

Plaintiff contends he “will be able to show procedural unconscionability on a class-wide basis” because the “VSCs at issue . . . are substantially similar form contracts” and were “presented . . . on a take-it-or-leave-it basis[.]” (Second Motion for Class Certification, p. 10.) He cites citing paragraph 20 of the second amended complaint (“SAC”) and exhibits 5, 6, and 7 to the Rotter declaration, claiming the VSCs constitute “contracts of adhesion[.]” (Ibid.)

Defendant asserts that paragraph 20 is not evidence and that exhibits 5, 6, and 7 “do not show what was used in California for all brands for all customers during the class period[.]” (Opposition, p. 12 [contending “[n]o evidence has even been submitted as to whether the VSCs submitted by Plaintiff were used for other customers, during what period of time (if any) these VSCs were used, that there were no other VSC forms used and/or that all VSCs were substantially similar”].)

Additionally, Defendant claims the “exhibits do not show that [the] VSCs were sold on a ‘take-it-or-leave-it’ basis” (ibid.) and the VSC bargaining process was/is individualized. (See id. at pp. 12-13.)

The Court agrees with Defendant. The SAC is unverified. An unverified complaint does not qualify as evidence. Exhibits 5 and 6 are redacted BMW VSCs that were issued to Plaintiff. (See Rotter Decl., Exs. 5-6.) Exhibit 7 is a blank Subaru VSC. (See id. at Ex. 7.) Plaintiff fails to show that BWM and Subaru have used these forms throughout the class period. And the exhibits reveal nothing about the VSCs, if any, used by other manufacturers and dealers. Consequently, Plaintiff fails to meet his burden.

Two more factors buttress this conclusion. One, it is undisputed that, at the point of sale at a dealership, VSC pricing is negotiable. (See Opposition, p. 12; see also Defendant’s Request for Judicial Notice, Ex. B, p. 5 [attaching California Department of Insurance website pages discussing VSCs]; Kook Decl., Ex. C, p. 28 [attaching the deposition transcript of Plaintiff’s expert].) Two, “[e]ven where a party complains of a single contract clause, the court usually must still examine the bargaining process for any procedural unfairness.” (De La Torre, supra, 5 Cal.5^th at 982.) For instance,

[t]he court must consider whether there was (1) undue oppression arising from “an inequality of bargaining power,” including the various factors tending to show relative bargaining power such as the parties’ sophistication, their cognitive limitations, and the availability of alternatives; and (2) surprise owing to, for example, the “terms of the bargain [being] hidden in a prolix printed form” or pressure to hurry and sign.

(Id. at 983.) These factors negate Plaintiff’s take-it-or-leave-it contention and render individual issues predominant.

Plaintiff asserts in reply that a dealer must remit a portion of the VSC purchase price to Defendant. He contends Defendant sets the amount of the remitted portion “at an unconscionably high number[.]” (Reply, p. 3.)

The argument does not change the result. The undisputed fact remains; a VSC is negotiated at the dealership with the dealer. The price the customer pays is negotiable, and, seemingly, the customer can decline to purchase a VSC if he or she does not like the price the dealer offers. Irrespective of whether Defendant sets the remittance amount, Defendant only receives the remittance if the customer agrees to buy the VSC following negotiation with the dealer at the dealership. Having an opportunity to negotiate is the opposite of a take-it-or-leave-it transaction. Also, individual questions predominate because the idiosyncrasies of each negotiation at each dealership need to be evaluated to assess procedural unconscionability. (See De La Torre, supra, 5 Cal.5^th at 983.)

For substantive unconscionability, the overarching issue is whether the price is “‘overly harsh,’ ‘unduly oppressive,’ or ‘so one-sided as to shock the conscience.’” (Id. at 984.) The determination is “highly dependent on context.” (Ibid.) Indeed, case law instructs that “it is not sufficient for a court to consider only whether ‘the price exceeds cost or fair value.’” (Id. at 983.) “The court must also ‘look to the basis and justification for the price.’” (Ibid.) This may include consideration of “whether there are market imperfections that make it less likely that the price was set by a ‘freely competitive market’ and therefore more susceptible to unconscionability.” (Id. at 984; see also Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4^th 899, 911 [noting that “[t]he doctrine often requires inquiry into the ‘commercial setting, purpose, and effect’ of the contract or contract provision”].)

Plaintiff relies on the declaration of his expert. Steven Boyles is an accountant. Plaintiff claims Boyles “has set forth a class-wide common methodology to determine excessive unconscionable pricing that can be consistently applied on a class-wide basis to assess damages experienced by each class member as a result of the price of the VSCs being unconscionable.” (Second Motion for Class Certification, p. 11; see also Reply, pp. 7-9.)

Defendant disagrees. Defendant contends Boyles’s methodology merely provides “a so-called methodology to determine ‘damages’ on a class-wide [basis], not provide an opinion as to how unconscionability can be determined in the first instance.” (Opposition, p. 14.)

11. ANALYSIS AND OPINIONS As referenced above, I have been asked to provide a methodology that could be consistently applied on a class-wide basis to assess damages experienced by each Class Member as a result of the price of the vehicle service agreements being unconscionable. An appropriate methodology susceptible to class-wide application is to:

a. First assess whether the prices paid by consumers were unconscionable at the time the contract was entered into by calculating the extent (i.e., multiple) that price paid by consumers for the vehicle service contracts exceeded the value of the benefits received from those contracts and compare such result to a multiple that would not be deemed to be unconscionable (as determined by the trier-of-fact). If the calculated multiple is higher than the appropriate multiple as determined by the trier-of-fact, then the appropriate multiple is subtracted from the calculated multiple to determine the portion (i.e., percentage) of the contract price that constitutes an overpayment.

b. Second, the actual net contract price paid by each Class Member is multiplied by the percent overpayment calculated above to derive the damage applicable to each Class Member.

The first part of the methodology – “determin[ing] whether the price paid by consumers was unconscionable at the date the contracts were entered in to” – involves “[u]tilizing contract and claims data maintained by, and under the custody and control of Safe-Guard, [to] assess”:

(1) “[t]he number of contracts executed by consumers for a Safe-Guard vehicle service contract, along with”:

– “[t]he portion of the total price paid by each consumer that was received by Safe-Guard[;]”

– “[t]he term of each vehicle service contract entered in to (e.g., 12 months, 60 months, etc.)[;]” and

– “[t]he total price paid by each consumer for a Safe-Guard vehicle service contract[;]”

(2) “[t]he number of claims made by vehicle service contract holders, along with”:

– “[t]he value of services performed and/or products provided (e.g., cost of replacement tire or wheel) in connection with each claim.” (Id. at ¶ 12.)

The Court sees at least five problems. One, the formula requires the person applying the formula to insert a mass quantity of substantially individualized information – e.g., each remittance, the price paid by each customer for each VSC, and the value of each service and product obtained under each VSC. (See Boyles Decl., ¶ 12.) Two, the trier of fact is responsible for “determining the appropriate multiple of price paid and benefits received” to plug into the formula. (Id. at ¶ 28 n.16.) Three, Boyle offers “no opinion as to how the trier of fact is [supposed] to” determine the appropriate multiple. (See ibid.; see also Opposition, p. 14 [quoting Boyles’s deposition testimony].) Four, the formula presumes that each customer was charged an unconscionable amount and applies a uniform “overpayment charge” to all of them despite the individualities in the dealerships, dealers, negotiations, and agreed-to VSC prices. (See Boyles Decl., ¶ 14; see also Opposition, pp. 14-15 n.2 [quoting Boyles’s declaration and deposition testimony].) Five, “while unconscionability is ultimately a question of law, numerous factual inquiries bear upon that question.” (De La Torre, supra, 5 Cal.5^th at 983.) Especially here. Defendant “works with multiple car brands in California (which may entail different cost considerations depending upon the specific arrangements with those brands)[.]” (Opposition, p. 15.) “[T]he cost of repair or replacement of tires will not be the same amongst these brands[.]” (Ibid.) “VSCs can and do differ in terms of deductibles, terms, limits on benefits, limits on labor rates, and coverages.” (Ibid.) Value is also critical. “What a customer may wish to pay for a VSC” depends on a variety of factors and is unique to the customer. (Ibid.; see also Archer Decl., ¶ 7.) Mini trials to answer these questions would be inevitable.

Plaintiff fails to meet his burden. He alleges that Defendant charged “fees, other than deductibles, in excess of the amount[s] provided for by their” VSCs. (Second Motion for Class Certification, p. 15.) His cited evidence is limited to three marketing agreements between Defendant and BMW (see Rotter Decl., Ex. 12), Defendant and Aston Martin (see id. at Ex. 13), and Defendant and Jaguar Land Rover (see id. at Ex. 14), his own declaration, and a November 2020 invoice from a Rolls Royce dealership. (See id. at Ex. 11.) The marketing agreements generally state that Defendant will provide services like data entry, claims processing, and ensuring program compliance, but they do not demonstrate actual overcharges to any customer. (See id. at Exs. 12-14.) Plaintiff declares that, on two visits, the Rolls Royce dealership charged him a $2.95 per-tire fee called a tire-disposition fee. (See Sotoodeh Decl., ¶ 5.) The invoice pertains to one of those visits. (See Rotter Decl., Ex. 11.) These documents do not address Defendant’s conduct vis-à-vis other brands and dealers. At best, they show individual harm to Plaintiff related to a single brand at a single dealership. They do not reveal a common business practice of mischarging that applies to the whole putative class. (See Opposition, pp. 16-17.)[2]

Plaintiff’s burden is unsatisfied. Most of the evidence he cites is the same evidence that the Court found insufficient last time. (See 10/30/23 Ruling Re: Motion for Class Certification, pp. 4-8 [analyzing the deposition testimony of Defendant’s person most knowledgeable and computer screenshots of a handful of individual claims]; see also Second Motion for Class Certification, pp. 17-18; Reply, p. 9.) His new evidence is the three marketing agreements between Defendant and BMW (see Rotter Decl., Ex. 12), Defendant and Aston Martin (see id. at Ex. 13), and Defendant and Jaguar Land Rover (see id. at Ex. 14). (See Second Motion for Class Certification, p. 17.) Again, these documents contain general statements about data entry, claims processing, and ensuring program compliance but do not show actual mischarges. And they do not apply to the other brands, dealers, and putative members. Bottom line, the prior defects persist, and commonality is lacking. (See Opposition, p. 17.)

“The ‘test of typicality is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.’” (Edmon & Karnow, supra, at ¶ 14:29 [quoting Martinez v. Joe’s Crab Shack Holdings (2014) 231 Cal.App.4^th 362, 375].)

“That the purported class representative's claims must be ‘typical’ does not mean they must be identical to the claims of other class members. It is sufficient that the representative is similarly situated so that he or she will have the motive to litigate on behalf of all class members.” (Id. at ¶ 14:29.2.) “Thus, it is not necessary that the class representative have personally incurred all of the damages suffered by each of the other class members.” (Ibid., emphasis in original.)

Plaintiff contends he is typical of the Unconscionable Pricing Class because his “unconscionable-pricing claims are based on Defendant’s standardized form contracts of adhesion and pricing practices that apply to every Safe-Guard VSC issued in California[.]” (Second Motion for Class Certification, pp. 18-19; see also Reply, pp. 9-10 [claiming Plaintiff has shown that “the form VSCs are substantially similar contracts of adhesion” and that Defendant’s “pricing practices” are substantially unconscionable].)

The Court disagrees. As explained above, Plaintiff’s evidence fails to show common VSCs across the multiple brands and dealers, common negotiations, common take-it-or-leave-it transactions, and common questions pertaining to substantive unconscionability. Plaintiff does not demonstrate that the putative members “have the same or similar injury” and “have been injured by the same course of conduct.’” (Edmon & Karnow, supra, at ¶ 14:29.)

Similar analysis applies to the Tire and Wheel Overcharge Class and the Single Deductible Subclass. To reiterate, Plaintiff’s evidence does not address all brands, dealers, and putative members and fails to evince common mischarging conduct. His burden is unmet.

“The class representative, through qualified counsel, must be capable of ‘vigorously and tenaciously’ protecting the interests of the class members.” (Edmon & Karnow, supra, at ¶ 14:36.)

“The prospective class representative must file a declaration stating that he or she desires to represent the class and understands the fiduciary obligations of serving as class representative. Counsel’s declaration to that effect will not suffice.” (Ibid.)

The Court finds that Plaintiff satisfies his burden. (See Sotoodeh Decl., ¶¶ 10-13; see also Rotter Decl., Ex. 18.)

“The proponent of class certification must demonstrate that the proposed class action is manageable [citation].” (Edmon & Karnow, supra, at ¶ 14:11.10.) “This requires the trial court ‘to carefully weigh the respective benefits and burdens of a class action, and to permit its maintenance only where substantial benefits will be accrued by both litigants and the courts alike.’ [Citation.]” (Ibid., emphasis in original.)

“In certifying a class action, the court must also conclude that litigation of individual issues, including those arising from affirmative defenses, can be managed fairly and efficiently.” (Duran v. U.S. Bank Nat. Assn. (2014) 59 Cal. 4th 1, 28-29.) “Trial courts must pay careful attention to manageability when deciding whether to certify a class action. In considering whether a class action is a superior device for resolving a controversy, the manageability of individual issues is just as important as the existence of common questions uniting the proposed class.” (Id. at 29.)

“A class action is not ‘superior’ where there are numerous and substantial questions affecting each class member's right to recover, following determination of liability to the class as a whole.” (Edmon & Karnow, supra, at ¶ 14:46, emphasis in original.)

The class method is unmanageable and inferior since Plaintiff fails to show ascertainable, numerous classes (in part), predominating common issues, and typicality.

[1] Plaintiff’s insinuation that he was prevented from obtaining full certification discovery is unavailing. (See, e.g., Second Motion for Class Certification, pp. 10-11; see also, e.g., Reply, pp. 5-6.) Plaintiff propounded discovery for the first certification motion. Then the Court gave him another bite at the apple and allowed him to propound discovery for this motion. He filed a motion to compel further responses to certain document requests, special interrogatories, and requests for admission. The requests that went to the merits were denied. Many requests, though, went to certification issues and were granted. (See 10/4/24 Ruling Re: Motion to Compel Further, pp. 3-12.) The Court is confident that Plaintiff received ample time and opportunities.

[2] Alleging a common theory of liability (see Reply, p. 9) is not enough.