Judge: Glenda Sanders, Case: 2015-00806712, Date: 2022-09-16 Tentative Ruling
Motion for Class Certification
The Motion for Certification is granted in part. The motion is denied as to the appointment of Lisa Teel as a class representative.
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 Plaintiffs Kenneth O’Neill and Brooke Davidson as class representatives and their lawyers as class counsel has been sufficiently demonstrated. Plaintiffs concede that Lisa Teel is not an adequate class representative because she is not a homeowner and for that reason she is not appointed as class representative.
The class definition proposed in the Plaintiffs’ Motion dated 6/24/2022 at page 3:2-9 (ROA 429) is acceptable. 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 CalAtlantic Group, Inc. f/k/a Standard Pacific Corp. or Standard Pacific of Orange County, 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, and (c) their SB 800 claims were not released.”
Plaintiffs are 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 490).
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.
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 that section only applies to products completely manufactured offsite. The tile roof at issue in the case did not qualify as such a product. Therefore, the “useful life” standard referenced in §896(g)(3)(A) was inapplicable. In the case at bar, it is the “useful life” standard that is applicable. (See §896 (a)(15)).
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. [Also see the arguments made by Plaintiffs in Plaintiffs’ Response to Notice of Supplemental Authority (ROA 500).]
Defendants also argue that Davidson’s claim is time barred because the home was substantially completed more than 10 years before the action was filed on 8/27/15, based on a certificate of occupancy issued by the San Clemente Building Department on 8/17/05. Defendants contend that there are twelve other homes subject to this defense and that it will take individual inquiries to determine the merits. Plaintiffs argue that §941(a), although referencing “substantial completion,” really only means that the triggering event is the recordation of a notice of completion. Per Plaintiffs, the Notice of Completion of Davidson’s home was recorded 9/21/05, so the action is timely.
In examining the legislative history of SB 800, it appears to be correct that “substantial completion” as used in Civil Code §941(a) is, in turn, defined in CCP §337.15(g)(2) as follows: “the date of recordation of a valid notice of completion.” (See Exhs. U and V to Reply RJN). Further, subsection 337.15(g)(3), which is not referenced in the legislative history is “the date of use or occupation of the improvement.” Therefore, the Certificate of Occupancy appears to have been intentionally excluded as a means of identifying “substantial completion” within the meaning of §941(a).
Thus, Defendants’ argument that Davidson’s claim is time barred based on the 8/17/05 certificate of occupancy is rejected.
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, Plaintiffs have met their 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 and, perhaps, from the results of sworn responses to a written survey.
(b) The class is numerous. It is estimated to include approximately 492 homes in ten developments. All of the homes at issue are located in the Talega area of San Clemente and are alleged to have been constructed by the builder Defendants 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 is doing 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, even individual damage proof 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) Plaintiffs Davidson and O’Neill are typical – as their copper pipe is allegedly subject to the shorter life that might be expected under the theory espoused by Plaintiffs’ expert. Their 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) Davidson and O’Neill are adequate as class representatives 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.
(g) Plaintiffs’ counsel (the Bridgford Artinian and McNicholas 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 Defendants 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 Defendants’ objections to the Dempsey Declaration. The court overrules Defendants’ objections #1, 2, 8, and 9 to the Artinian Declaration (ROA 403). The court overrules Plaintiffs’ 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 Plaintiffs’ request for judicial notice of the documents attached as Exhibits T, U and V.
Plaintiffs’ 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 also requires Plaintiffs’ counsel to submit a trial plan within thirty (30) days of this ruling which outlines Plaintiffs’ proposed procedure for proving standing for all class members. Counsel should meet and confer on a date for a hearing (which must be a Friday) counsel to meet and confer as to a date for such a hearing on the Notice if they cannot agree on the contents thereof on the Trial Plan assuming either or both parties consider such a hearing is necessary. If the parties cannot stipulate to the Trial Plan, the parties shall agree to a written schedule which includes an Opposition to the adequacy of the Trial Plan and a Reply to that Opposition. The Reply brief shall be due at least 10 calendar days prior to the scheduled hearing.
The matter is currently set for a Status Conference on October 19, 2022 at 1:30 PM in CX101. The court sets a Trial Setting Conference for that same date and time.
With regard to 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. The hearing must take place on a Friday.
Plaintiffs to give notice.