Judge: Robert C. Longstreth, Case: 37-2021-00030939-CU-WM-CTL, Date: 2024-06-07 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - June 06, 2024

06/07/2024  08:30:00 AM  C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  Writ of Mandate Motion Hearing to Certify/Decertify Class Action 37-2021-00030939-CU-WM-CTL ALLRED VS CITY OF SAN DIEGO [E-FILE] CAUSAL DOCUMENT/DATE FILED:

Plaintiffs' Motion for Class Certification (ROA 74) is GRANTED.

Plaintiffs/Petitioners Barry Allred and Brad Penley seek certification of the following proposed class: 'All San Diego Public Utility Department ('SDPUD') customers who paid bills for wastewater services provided to a residential or commercial/industrial account at an address within the City of San Diego and not subject to IWCP permitting, on or after July 1, 2014 and until the date the Class is certified by the Court, excluding Defendant and Defendant's officers, directors, employees, agents, and affiliates, and the Court and its staff.' The court finds that the class is ascertainable, that common questions of law or fact predominate over individual questions, that Plaintiffs' claims and defenses are typical of the class, that Plaintiffs and class counsel can adequately represent the class, and that class action is the superior means of adjudicating the claims in the litigation.

The City asserts Plaintiffs cannot adequately represent the class because they failed to pay the challenged wastewater charges under protest. (Health & Saf. Code § 5472.) This is a potential defense to Plaintiffs' and the class's claims, but the City fails to adequately address how this renders Plaintiffs inadequate to serve as class representatives. Both sides agree that this is an issue that will affect the entire class; it is not unique to the named Plaintiffs. In other words, Plaintiff have claims which are typical to the rest of the class, and subject to the same defense on these grounds. Both Plaintiffs have submitted declarations confirming they understand the responsibilities expected of a class representative and that they are not aware of any potential conflicts with the rest of the class. (Allred Decl. at ¶ 9; Penley Decl. at ¶ 9.) The court finds Plaintiffs can adequately represent the class.

The City asserts class treatment is not superior because a remedy requested in Plaintiffs' pleadings (to refund the fees collected from the class) is unavailable. Again, the City failed to adequately address why class treatment is not superior on these grounds. The City's arguments attempt to reach the merits of Plaintiffs' claims, but this is not an appropriate consideration at certification. '[T]he certification question is essentially a procedural one that does not ask whether an action is legally or factually meritorious.' (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326 (internal quotes omitted).) Indeed, the City contends 'a refund remedy is not available to Plaintiffs or any proposed class member,' which supports the conclusion that class treatment is superior, because any potential defense the City has on these grounds can be resolved as to the entire class in a single action.

Plaintiffs assert in their moving papers that the class period should begin on July 1, 2014 based on a Calendar No.: Event ID:  TENTATIVE RULINGS

3042139  6 CASE NUMBER: CASE TITLE:  ALLRED VS CITY OF SAN DIEGO [E-FILE]  37-2021-00030939-CU-WM-CTL theory of equitable tolling. The City disagrees and asserts the class period should begin on year before Plaintiff Allred filed his June 3, 2021 government claim. The court declines to resolve the issue of whether there is a statute of limitations defense available to the City, or whether any exception such as equitable tolling may be available to the class, in granting certification. Again, the court does not determine whether the action has either factual or legal merit at certification. (Sav-On, supra; see also Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1105, fn. 4, '[n]o California court has declined to certify a class action specifically because of a statute of limitations defense.') Plaintiffs propose that the City be ordered to send notice by mail or e-mail to all class notice, and to post the notice on its own website 'and social media accounts' at no cost to the class. The City did not provide any response to this proposal in its opposition. Notice of the class action must be provided to class members. (Cal. R. Court, rule 3.766.) However, the parties have not provided sufficient information for the court to make a determination regarding the class notice. No proposed class notice was filed, though the contents of the class notice are subject to court approval. (Id. at subd. (d).) Accordingly, the court encourages the parties to promptly file a stipulation and proposed order addressing the requirements of Rule 3.766(c), (d), and (e). To the extent they are unable to stipulate, Plaintiffs are to promptly file a noticed motion seeking the court's approval of a proposed class notice.

The City's requests for judicial notice (ROA 85) are denied on the grounds they were not relevant to the court's determination of the motion. The City's objection (ROA 86) to the report of Plaintiffs' expert Charles E. Loy is overruled.

The parties should be prepared to address at the hearing the further progress of the case, including the setting of trial dates.

The court will sign the proposed order at ROA 81 upon confirmation of its tentative ruling.

Calendar No.: Event ID:  TENTATIVE RULINGS

3042139  6