Judge Glenda Sanders, Case 2013-00649345 2022-10-28 Tentative Ruling

Judge: Glenda Sanders, Case: 2013-00649345, Date: 2022-10-28 Tentative Ruling

Motion to Certify Class

The Motion for Certification is granted.

The requirements for certification of a class have been met. The court finds that the class is readily ascertainable, is sufficiently numerous, that there is sufficient commonality of interests among the class members, that class handling is superior to individual claims and that the adequacy of Plaintiff Cesar Sabroso as class representative and his lawyers as class counsel has been sufficiently demonstrated.

The class definition proposed in Plaintiff’s Motion dated 7/21/2022 at page 2:20-26 (ROA 803) is acceptable with one arguably appropriate modification indicated in red bolded italics below. The class is:

“(1) All present owners of residential homes in the Class Area whose copper pipe systems have not been replaced with PEX or epoxy coating by prior owners of the homes, or (2) prior owners of homes in the Class Area who replaced their copper pipe systems with PEX or epoxy coating, provided that:

(a) the homes were constructed by D.R. Horton, Inc. and substantially completed within ten (10) years of the filing of the original complaint in this action,

(b) the original purchase agreements were signed by the builder on or after January 1, 2003;

Plaintiff is correct that, with this definition, all class members are likely identifiable by public property ownership records. The argument that only the original purchaser has standing is rejected for the reasons set forth in Plaintiff’s Reply (ROA 861). The fact that some putative class members may be required to arbitrate their disputes may be determined efficiently by motion or stipulation as has been done in several of the related actions. That some putative class members may be required to subject their disputes to arbitration may reduce the number of putative class members but does not defeat this motion to certify.

Defendants attempt to defeat class certification, in part, based on the very recent Gerlach decision. (Gerlach v. K. Hovnanian’s Our Seasons At Beaumont, LLC 2022 WL 3443648). This effort is unavailing.

As discussed in prior rulings in other related cases, Gerlach involved RORA claims based on §896(a)(4), (g)(3)(A) and (g)(11). In contrast, the RORA claim at issue here is based on §896(a)(15). Plaintiffs in the Gerlach case complained that their roof was defective. The appellate court found that §896(g)(3)(A) did not apply because it is only for products completely manufactured offsite. The tile roof at issue in the case did not qualify.

As to the claims under §§896(a)(4) and (g)(11), the appellate court held that for a violation of those standards to occur and be actionable, “materials must fall from the roof or there must be some sort of prohibited water leak or intrusion. Otherwise, a plaintiff could recover on the basis of the mere possibility that such violations might occur because of some way in which the roof was allegedly negligently installed. Such a claim would subvert the purpose of the Act to reform construction defect litigation and to eliminate common law negligence claims for construction defects.” (Gerlach at 5).

Elsewhere in its decision, the appellate court noted that the trial court had “expressed concern that without evidence of actual leakage or material falling from the roofs, [the expert’s] testimony would venture into the prohibited topic of the roofs’ useful lives under section 896(g)(3)(A).” (Gerlach at 4). Both §896(g)(3)(A) and §896(a)(15) (which is at issue here) are concerned with the useful life of the item at issue. It would not make sense to require a showing that the pipes had already leaked where, as here, it is a violation of the statute if the useful life is impeded.

The court also rejects Defendant’s argument that only the original purchaser has standing for the reasons set forth in Plaintiff’s Reply (ROA 861).

Class certification is a procedural device. Usually, these motions do not involve a determination of the merits unless the merits of the case are “… enmeshed with class requirements, such as whether substantially similar questions are common to the class and predominate over individual questions or whether the claims or defenses of the representative plaintiffs are typical of class claims or defenses.” [Linder v. Thrift Oil Co. (2000) 23 Cal.4th 429, 443: Brinker Restaurant Corporation v. Superior Court (2012) 53 Cal.4th 1004, 1023; Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th.319, 326-327, and Jaimez v. DAIOHS USA, Inc. (2010) 181 Cal.App.4th 1286, 1298.]

Here, the merits of the case are not “enmeshed with class requirements.”

Class treatment is favored where it will benefit the parties and judicial efficiency, and where the claims prove amenable to class treatment. Such is the case here.

Class certification may be appropriate, even if class members at some point might be required to make an individual showing as to eligibility for recovery pursuant to Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, 1207, and Sav-On, supra, page 333.

For the reasons discussed above and set forth below, Plaintiff has met his burden to demonstrate the presence of the elements necessary to grant certification of the proposed class as defined in the moving papers, pursuant to C.C.P. §382, and California Rule of Court 3.764. The additional reasons are:

(a) The class is ascertainable from public records reflecting, for example, home ownership, from Defendant's records, from county records concerning re-piping permits, sworn responses to a written survey, declarations, stipulations and where necessary, limited oral testimony;

(b) The class is numerous. It is estimated to include approximately 251 homes in 2 developments. While the court notes that Defendant contends the number is closer to 249, that distinction does not change the analysis. All of the homes at issue are located in Ladera Ranch, California and are alleged to have been constructed by the builder Defendant on or after January 1, 2003.

(c) The class shares common issues of fact and law which predominate over individual issues. The predominant common issue is the question whether the copper pipe used, in conjunction with the water supplied by the SMWD, lessened the reasonably-expected useful life of that copper pipe likely ensuring its failure sooner than the approximately 40 years it might otherwise be expected to last. These factors do not need to be the sole cause of a reduced useful life. [See CC § 896 (a)(15) and Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal App 4th 908, 912, 923: Declaration of Plaintiffs’ expert, Dr. Dempsey.]

Also, applying Dr. Dempsey’s theory, which the court must do at this stage of the proceedings, the court finds that plaintiffs’ theory of common proof has a “foundation in evidence.” Payton v. CSI Electrical Contractors, Inc. (2018) 27 Cal.App.5th 832, 842.

(d) Damage variation among class members is not enough to defeat certification. Individualized proof of damages does not preclude certification. [Brinker, supra, page 1022, Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal.App.4th 908, 916, and Vazquez v. Superior Court (1971) 4 Cal.3d 800, 820.]

(e) Plaintiff Cesar Sabroso is typical – as his copper pipe is allegedly subject to the shorter life that might be expected under the theory espoused by Plaintiffs’ expert. His claims fit within the class definition, are based on the same event, practice, or course of conduct that gives rise to the claims of other class members and are based on the same legal theory. Also, see Classen v. Weller (1983) 145 Cal.App.3d 27, 46 (circumstances need not be identical).

(f) Sabroso is adequate as class representative since there is no disabling conflict of interest that might affect his service – and he has already demonstrated a serious commitment to prosecuting these claims on behalf of the class.

(g) Plaintiff’s counsel (all three plaintiff firms) are adequate since there is no disabling conflict of interest that might affect their service – and they have already demonstrated a serious commitment to prosecuting these claims on behalf of the class—and they are experienced class action attorneys.

(h) Class treatment is manageable, and will be superior to numerous different individual homeowner cases addressing this common alleged wrongdoing, where common proof can apply (based on competing expert opinions offered by both sides), and the risk of inconsistent rulings is avoided such that class treatment will be advantageous to the judicial process and to the litigants pursuant to Brinker, supra, page 1021. Defense arguments that other causes are responsible for leaks, or for any shortened life of the subject copper pipe does not avail Defendant because, for purposes of certification, they do not defeat Plaintiffs’ theory that the copper pipe used in conjunction with the water supplied by the SMWD also lessened the reasonably-expected useful life of that copper pipe. (Dailey v. Sears, Roebuck & Co. (2013) 214 Cal.App.4th 974, 991: “[i]f the parties’ evidence is conflicting on the issue of whether common or individual questions predominate . . . the trial court is permitted to credit one party’s evidence over the other’s in determining whether the requirements for class certification have been met.”).

The court overrules Defendant’s objections to the Dempsey Declaration. The court overrules Defendant’s objections #6, 7, 17, and 18 to the Kellner Declaration (ROA 791). The court overrules Plaintiff’s objections to the declarations of Mittelman and Van Der Schijff. The court declines to rule on any other objections as they are not relevant to the determination of the motion.

The court grants Plaintiff’s request for judicial notice of the documents attached as Exhibits P and Q.

Plaintiff’s counsel is to prepare and submit a proposed Order within seven (7) days of the date of this ruling.

The court will hold that proposed Order for 15 days to permit any objection to be filed by Defendants.

The court does not at this stage require Plaintiff’s counsel to submit a trial plan. Similar to the court’s approach to the Trial Plan in related case Smith vs. Pulte, a trial plan shall, in the discretion of the court, be submitted after the close of discovery, but prior to trial. (See Court’s Comments on the record on October 21, 2022 re trial plan in Smith vs. Pulte.)

The matter is currently set for Trial per stipulation on August 21, 2023 at 9:00AM. The court sets a Status Conference for December 9, 2022 at 1:30 PM. The department in which the status conference and the trial will take place is yet to be determined.

Regard the post-certification notice to the class, counsel for both sides are to meet and confer and then submit a jointly-prepared Notice to the Class, if possible. If not possible, then separate briefs, no more than 3 pages are permitted on that topic within 15 days of this ruling. Counsel are to meet and confer as to a date for such a hearing if they cannot agree on its contents.

Plaintiff to give notice.