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Noel v. Thrifty Payless, Inc.

Court of Appeal of California, First Appellate District, Division Four

December 4, 2017, Opinion Filed

A143026

Opinion

 [**468]  STREETER, J.—Plaintiff James A. Noel bought an inflatable swimming pool at defendants' drugstore that turned out to be much smaller than the pool pictured on the box. He sued defendant Thrifty Payless, Inc., on behalf of himself and similarly situated individuals, alleging defendants violated the [*1321]  Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.) (CLRA), unfair competition law (Bus. & Prof. Code, § 17200 et seq.) (UCL), and false advertising law (Bus. & Prof. Code, § 17500) (FAL) by selling the pool with deceptive advertising to consumers in its California retail stores. When Noel moved to certify the class, the trial court denied his motion on the UCL and FAL causes of action, finding Noel's proposed class—consisting of more than 20,000 potential members—was not ascertainable under Code of Civil Procedure section 382. The court also refused to certify a class on Noel's CLRA cause of action because it determined common questions of law or fact did not [***2]  predominate over individual questions of reliance and causation. On appeal, Noel claims the court erred by applying incorrect legal standards and abused its discretion by refusing to grant him a continuance so he could more fully develop the facts to support his motion.

We conclude the court did not abuse its discretion or misapply the law in denying class certification. Rather, the underlying problem with the class certification motion appears to be attributable to class counsel's premature filing of the motion without first conducting sufficient discovery to meet its burden of demonstrating there are means of identifying members of the putative class so that they might be notified of the pendency of the litigation. This failing jeopardizes the due process rights of absent class members, and rather than relieve the class representative of the obligation to make such a showing—as Noel's counsel seems to suggest—we affirm the trial court's denial of the class certification motion.

I. BACKGROUND

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17 Cal. App. 5th 1315 *; 226 Cal. Rptr. 3d 465 **; 2017 Cal. App. LEXIS 1073 ***

DIANA NIEVES NOEL, as Personal Representative, etc., Plaintiff and Appellant, v. THRIFTY PAYLESS, INC., Defendant and Respondent.

Notice: THE SUPREME COURT OF CALIFORNIA GRANTED REVIEW IN THIS MATTER (see Cal. Rules of Court, rules 8.1105(e)(1)(B), 8.1115(e)) February 28, 2018, S246490.

Subsequent History: Review granted by Noel v. Thrifty Payless, Inc., 229 Cal. Rptr. 3d 344, 411 P.3d 525, 2018 Cal. LEXIS 1707 (Cal., Feb. 28, 2018)

Request granted Noel v. Thrifty Payless, Inc., 2018 Cal. LEXIS 2415 (Cal., Mar. 27, 2018)

Request granted Noel v. Thrifty Payless, Inc., 2018 Cal. LEXIS 3886 (Cal., May 23, 2018)

Request granted Noel v. Thrifty Payless, Inc., 2018 Cal. LEXIS 5710 (Cal., July 26, 2018)

Request granted Noel v. Thrifty Payless, 2018 Cal. LEXIS 7911 (Cal., Oct. 10, 2018)

Request granted Noel v. Thrifty Payless, 2018 Cal. LEXIS 7910 (Cal., Oct. 10, 2018)

Request granted Noel v. Thrifty Payless, Inc., 2018 Cal. LEXIS 7912 (Cal., Oct. 10, 2018)

Request granted Noel v. Thrifty Payless, Inc., 2018 Cal. LEXIS 7913 (Cal., Oct. 10, 2018)

Request granted Noel v. Thrifty Payless, Inc., 2018 Cal. LEXIS 7914 (Cal., Oct. 10, 2018)

Request granted Noel v. Thrifty Payless, Inc., 2018 Cal. LEXIS 7915 (Cal., Oct. 10, 2018)

Request granted Noel v. Thrifty Payless, Inc., 2019 Cal. LEXIS 3058 (Cal., May 1, 2019)

Reversed by, Remanded by Noel v. Thrifty Payless, Inc., 7 Cal.5th 995, 250 Cal. Rptr. 3d 234, 445 P.3d 626, 2019 Cal. LEXIS 5696 (Cal., July 29, 2019)

Prior History:  [***1] Superior Court of Marin County, No. CIV1304712, Paul M. Haakenson, Judge.

CORE TERMS

class certification, class member, pool, trial court, ascertainability, notice, class action, records, certification, discovery, personal notice, continuance, cause of action, consumer, certify, advertising, causation, notified, member of the class, predominate, box, ascertainable class, putative class, individual class member, individual issues, purchasers, drivers, merits, cases, request for a continuance

Antitrust & Trade Law, Consumer Protection, Deceptive & Unfair Trade Practices, State Regulation, False Advertising, Civil Procedure, Special Proceedings, Class Actions, Prerequisites for Class Action, Appellate Review, Certification of Classes, Notice of Class Action, Class Members, Prerequisites for Class Action, Predominance, Appeals, Standards of Review, Abuse of Discretion, Pretrial Matters, Continuances