No. D058380.

CARMEN GENOVESE et al., Plaintiffs and Appellants, v. YOUNG CHANG AMERICA et al., Defendants and Respondents.

Court of Appeals of California, Fourth District, Division One.

Filed January 6, 2012.


HUFFMAN, Acting P. J.

In the 1990's, plaintiffs and appellants Carmen and D'onn Genovese and Fred R. Yaekle (Plaintiffs) bought pianos containing a component part (the "action brackets"), manufactured by a Korean company, Young Chang Co. Ltd. (not a party to this action). Plaintiffs had troubles with the quality of play of their pianos and in 2007, they brought a proposed class action against Young Chang Co. Ltd.'s American subsidiary distributors and marketers, Young Chang America Inc. (YCA) and its later-formed "doing business as" company, AND Music Corp. (AND) (sometimes collectively, Defendants). Plaintiffs seek damages and other relief for alleged breaches of product warranties, and for violations of the California Consumer Legal Remedies Act (CLRA; Civ. Code, § 1750 et seq.).

Plaintiffs brought a motion for certification of their proposed class of 59,470 piano purchasers, identified by serial numbers on the products sold to them, alleging that Defendants have known since 1996 about a defect in the composition of the metal used to manufacture the action brackets, but Defendants failed to remedy the defect, as required by their express or implied warranties.

The trial court denied the motion, finding a lack of common issues of fact and law, particularly with respect to privity of warranty or contract, and statute of limitations problems arising from the delayed manifestation of injury or defect. (Code Civ. Proc., § 382; Civ. Code, § 1781, subd. (b).)

On appeal, Plaintiffs assert the trial court erred and abused its discretion in denying their motion for class certification, by using improper legal criteria or making erroneous assumptions. We find the order to be well supported and affirm.


A. Piano Purchases and Problems

The Genoveses bought a new Young Chang piano in 1996 from one of Defendants' authorized dealerships. Yaekle bought his piano in 1991, also from an authorized dealership. They each noticed that the piano had a degrading quality of play beginning a year or two after the purchase, and they had their pianos tuned or "regulated" yearly or so. They did not discover until 2007, when further testing was performed, that the piano problems were allegedly caused by the installation of the action brackets (metal action rail connecting brackets that would expand over time, due to an improper mixture of aluminum alloys).

When the pianos were sold by the dealers, they were accompanied by a manufacturer's express warranty covering defects in materials and workmanship for 12 years from the date of the original purchase from an authorized dealer. Additionally, a manufacturer's limited lifetime warranty on the action and case parts was granted to purchasers from an authorized dealer, for the lifetime of the original purchaser. The warranty also provided for the repair of defects within a reasonable time after receiving notice of such defects in material or workmanship, or for replacement of the piano.

B. Allegations of Plaintiffs' Fifth Amended Complaint

The operative pleading is the fifth amended complaint (FAC), filed after several sets of demurrers were sustained with leave to amend, to overcome delayed discovery pleading problems. Plaintiffs allege that Defendants are representatives of the manufacturer, and succeeded to its interests and liabilities.

As class causes of action, Plaintiffs alleged breach of the implied warranty of merchantability, and breach of express warranties. (Cal. U. Com. Code, §§ 2313 [express promises made by sellers relating to their goods that become part of the basis of the bargain]; 2314 [implied warranty of merchantability].) Plaintiffs allege that they had reported their warranty claims to Defendants in 2007, upon discovery of the problems by their retained piano technicians.

In their third class cause of action, Plaintiffs alleged the activities of Defendants violated the CLRA, and that they sent notice to Defendants in 2007 accordingly. Specifically, they alleged Defendants gained knowledge of problems with the metal used in the component parts as early as 1996, 2001 and 2003, but they concealed this knowledge and failed to offer a recall or warranty protections to Plaintiffs or the proposed class members, and this amounted to deceptive trade practices.

The relief sought included an injunction requiring that Defendants disgorge ill-gotten gains and award restitution to Plaintiffs and to the class members, as well as an injunction requiring Defendants not to make false claims about the condition of their pianos. Attorney fees were sought according to statute. (CLRA, Civ. Code, § 1780, subd. (d); Code Civ. Proc., § 1021.5.)

C. Motion and Opposition

Three years after filing, Plaintiffs sought certification of the proposed class, which they defined as all natural or artificial persons who purchased, directly from Defendants or through their authorized dealers, a new piano containing the action manufactured by Young Chang, bearing the serial numbers of 50,000 through 109,470.

Plaintiff argued this proposed class was sufficiently ascertainable, there was a well-defined community of interest, and there were common questions of law and fact among the members of the class about the alleged defectiveness and failure of the metal alloy mixture in their action brackets. Plaintiffs provided an attorney declaration stating he was competent to represent the defined class, which he believed met all the relevant criteria. Plaintiffs lodged deposition transcripts from the class representatives and from representatives of Defendants. In their own deposition testimony, Plaintiffs described the problems with their pianos over the years requiring yearly maintenance, and their discovery of the product component's metal defects in 2007, when further repairs were made at their own expense.

Defendants opposed the class certification motion on all grounds, chiefly arguing that there was no community of interest among class members, with regard to their entitlement as purchasers to warranty coverage, on privity grounds. Also, there would be individual issues about whether and when the pianos failed to function properly, or the existence of any damage or injury, as well as timeliness of claims. Defendants contended that their statute of limitations defenses would have to be individually determined for each class member, based on Plaintiffs' failure to give timely notice of any claims or injury. (Cal. U. Com. Code, § 2725; Code Civ. Proc., § 337 [four years for warranty]; CRLA, Civ. Code, § 1783 [three years].)

In opposition to the class certification motion, Defendants provided a declaration by Vincent Choi, the president of AND. Choi stated that about one third of the pianos in the designated serial number range were sold by YCA, and none was sold by AND. Of those pianos, only a small percentage had experienced problems with the action brackets. Remaining pianos in the designated serial number range were sold by other distributors not related to Defendants. Also, another third of the products in the range were action brackets sold by the manufacturer to other manufacturers in the United States.

Also in opposition, Defendants provided deposition excerpts from their service manager, Philip Glenn. Glenn believed that of the pianos YCA had distributed, about half of one percent had had problems with the action brackets. In general, the total warranty claims for all Young Chang pianos were averaging about three percent, for any problems. He referred to the service memos he had written in 2001 and 2003, identifying the problem with the action brackets and recommending technical fixes. Defendants had not denied any warranty claims, and Plaintiffs had presented no evidence that they did so. Instead, according to their deposition testimony, the named Plaintiffs were unaware of any warranty claims or denials, although Mrs. Genovese said her technician had requested replacement parts from Defendants.

According to Defendants' attorney's declaration, Defendants propounded discovery requesting documentation of Plaintiffs' injury or damage that entitled them to make warranty claims. However, Plaintiffs could not provide any documents "concerning the symptoms exhibited by the piano, any repairs performed on the piano, the cost of any such repairs, the adequacy of the repairs . . . ."

Defendants also provided an opposing declaration by an expert metallurgist, Dr. Shahram Sheybany, who examined samples of the action brackets that had cracked and fractured, as well as intact action brackets within the serial range identified. His findings were that some of the action brackets failed due to overloading, while others did not. This was not a time-dependent failure that would be caused by metal fatigue or stress corrosion cracking. He did not think there was any reason to suspect that those action brackets which have not yet failed would ever fail in the future.

Defendants therefore asserted affirmative defenses of bars of the statutes of limitations, and lack of required privity for the breach of implied warranty cause of action. They argued it was impossible to administer a class action, due to individualized issues of liability and damages.

In reply, Plaintiffs provided a declaration by their expert metallurgist, Dr. Sya Ensha, who examined the action brackets from the individual Plaintiffs' pianos, and discovered that they had fractured. His tests determined that there was internal corrosion within the parts, and this was a time-dependent failure. Such growth of internal corrosion depends on environmental conditions, which vary, so there is no way to ensure the ongoing integrity of the brackets.

Defendants objected that Plaintiffs' expert declaration was not timely filed, because it should have been filed with the moving papers. They also claimed a lack of foundation for the witness's conclusions.

D. Ruling and Appeal

At argument before the trial court, Plaintiffs contended there were no problems with privity as to the express warranty cause of action, which relied on a lifetime limited warranty for the purchasers on the action and case parts, and a full 12-year warranty on materials and workmanship. Plaintiffs further argued that because internal corrosion had caused the problems, they were never placed upon inquiry notice of any defects, and that Defendants were now obligated to repair or replace the defective products.

Defendants responded that any commonality of issues was destroyed by the valid affirmative defenses that they were presenting. Defendants acknowledged that demurrers to the complaint had been overruled, and Plaintiffs had made out a theoretical case of delayed discovery. Nevertheless, Defendants argued Plaintiffs could not prove their allegations of any justified delay.

The trial court denied the motion on the basis that individual factual questions regarding the statute of limitations defense as to all causes of action predominated over any common legal and factual questions. Likewise, individual factual questions regarding the privity element of the breach of warranty causes of action predominated over common issues. The court stated that it need not and did not consider the evidentiary objections, nor other remaining factors regarding class certification. Plaintiffs appeal.


We first set forth our standards of review and address Defendants' appealability arguments. We then consider the merits of the ruling with respect to the different causes of action and defenses pled, in light of basic principles governing class certification.



Legal criteria for class certification are well established. "`Section 382 of the Code of Civil Procedure authorizes class suits in California when "the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court." The burden is on the party seeking certification to establish the existence of both an ascertainable class and a well-defined community of interest among the class members.' [Citation.]" (Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1103-1104, fn. omitted (Lockheed Martin).) Three factors go toward a community of interest or "commonality" showing: "`(1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.'" (Id. at p. 1104.)

To satisfy their burden in moving for class certification, Plaintiffs were required to show not only the existence of such common issues, but also to provide substantial evidence that the common issues will predominate over questions that affect only the individual members. (Lockheed Martin, supra, 29 Cal.4th at pp. 1104-1106.) Trial courts are well situated to evaluate the efficiencies and practicalities of permitting such group action. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435-436 (Linder).) Where a certification order turns upon inferences to be drawn from the facts, "`the reviewing court has no authority to substitute its decision for that of the trial court.' [Citations.]" (Caro v. Proctor & Gamble, Inc. (1993) 18 Cal.App.4th 644, 655, fn. 6 (Caro).) If the trial court's discretionary ruling is based on any valid rationale, that is substantially supported by the evidence, or by any properly implied findings, it will not be overturned on appeal. (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 328 (Sav-On Drug ); Evans v. Lassco Bathware, Inc. (2009) 178 Cal.App.4th 1417, 1421-1422.)

Conversely, where a trial court's ruling discloses that it was based upon improper legal criteria, or upon erroneous assumptions, it will be subject to reversal, regardless of any existing substantial evidence in support of the order. (Linder, supra, 23 Cal.4th at p. 436; Sav-On Drug, supra, 34 Cal.4th at pp. 326-327.)

Here, the trial court's order denying certification of the proposed class expressly reached only some of the basic criteria that have been developed on that question. The court found Plaintiffs had not shown any sufficient community of interest or predominant common questions of law and fact, with respect to a lack of required privity for breach of warranty, and statute of limitations defenses on all causes of action. These stated reasons qualify as proper criteria for the denial of certification, assuming they are supported by the record. (Sav-On Drug, supra, 34 Cal.4th at pp. 326-327.) Under the circumstances, the court was not required to, nor did it, discuss other criteria, such as any ascertainable class issues, nor the "typicality" of the class representatives' claims, nor adequacy of the representation. (Id. at pp. 334-335.)

Before turning to the specific arguments Plaintiffs raise about the basis for the ruling, we reject Defendants' claims that the order denying class certification should not be an appealable one under the "death knell" doctrine, because the three named plaintiffs alone might individually pursue their own causes of action. Where a denial of certification to an entire class determines the legal insufficiency of the complaint as a class suit, it is an appealable order. (Linder, supra, 23 Cal.4th at p. 435; Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 698-699.) Where such a decision makes all further proceedings impracticable, appellate review is appropriate. (General Motors Inc. v. Superior Court (1988) 199 Cal.App.3d 247, 251.) This order amounts to a final disposition of the class action as a whole, because the class allegations are integral to the theories pled, and very little is left of the action as to the individual plaintiffs. They are now entitled to resolution of their legal questions about the ruling deeming the class allegations to be insufficient. (Ibid.)



A. Legal Principles

Plaintiffs acknowledge it is their burden to establish the requisite community of interest to show that "`questions of law or fact common to the class predominate over the questions affecting the individual members.' [Citation.]" (Lockheed Martin, supra, 29 Cal.4th at p. 1104.) In making its ruling, "the trial court must examine the issues framed by the pleadings and the law applicable to the causes of action alleged." (Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal.App.4th 908, 916, fn. omitted (Hicks).) The main question is whether "the defendant's liability can be determined by facts common to all members of the class . . . ." (Ibid.) If so, a class may be certified "even if the members must individually prove their damages." (Ibid., fn. omitted.)

A class action "`will not be permitted . . . where there are diverse factual issues to be resolved, even though there may be many common questions of law.'" (Block v. Major League Baseball (1998) 65 Cal.App.4th 538, 542 (Block) [denial of class certification proper where central issue or ultimate fact essential for establishing liability must be proven separately by each class member].)

Even though class certification questions are essentially procedural in nature, the Supreme Court has recognized that the trial courts can appropriately inquire, to some extent, into the merits of the issues to be raised as a class, when the court is evaluating whether the required community of interest has been demonstrated. (Linder, supra, 23 Cal.4th at p. 443.) "Indeed, issues affecting the merits of a case may be enmeshed with class action 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." (Ibid.; Global Minerals & Metals Co. v. Superior Court (2003) 113 Cal.App.4th 836, 849 (Global Minerals.)

It is also appropriate for the trial court, in ruling on a class certification request, to take into account the potential affirmative defenses to be presented by the defendant, such as whether "an affirmative defense would raise issues specific to each potential class member." (Walsh v. IKON Office Solutions, Inc. (2007) 148 Cal.App.4th 1440, 1450; Kennedy v. Baxter Healthcare Corp. (1996) 43 Cal.App.4th 799, 811 (Kennedy).) In some cases, "the issues presented by that defense predominate over common issues" (Walsh, supra, at p. 1450), and they may destroy the plaintiff's claims to commonality of issues. The main question is whether such individual issues may effectively be managed. (Sav-On Drug, supra, 34 Cal.4th at pp. 334-335; Lewis v. Robinson Ford Sales, Inc. (2007) 156 Cal.App.4th 359, 367-368.)

In considering whether a trial court's certification order is supported, we also determine whether "the theory of recovery advanced by the proponents of certification is, as an analytical matter, likely to prove amenable to class treatment. [Citation.] `Reviewing courts consistently look to the allegations of the complaint and the declarations of attorneys representing the plaintiff class to resolve this question.' [Citations.]" (Sav-On Drug, supra, 34 Cal.4th at p. 327.) "Class actions are provided only as a means to enforce substantive law," and these procedural issues are subject to that rule. (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 462.)

B. Warranty Claims: Introduction to Privity Issues

For pleadings and class definition purposes, Plaintiffs are relying on the express written warranty issued by the manufacturer, as well as a related implied warranty of merchantability applicable to purchasers from Defendants' authorized dealers. Defendants first deny liability, simply because YCA sold one third of the pianos, AND sold none, and other distributors or the manufacturer sold the rest. However, Plaintiffs' class definition allows them to allege that their purchases from an authorized dealer will satisfy privity requirements. As far as this record discloses, these Defendants are the American successors to the entity that manufactured the action brackets in the 1990's, and according to Plaintiffs, they appear to have adopted its transactions for all practical purposes. (See Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008) 169 Cal.App.4th 116, 141 (Cardinal Health).)

Thus, only for class certification and commonality analysis, we can properly assume that Plaintiffs can set forth an acceptable class definition with respect to contractual privity for their warranty theories. Also, there are no related ascertainability problems, since putative class members could be identified based upon the warranty documents. (See, e.g., Hicks, supra, 89 Cal.App.4th at p. 914.) Privity is not a requirement for actions based upon express warranties, such as class members allegedly received. (Hayman v. Shoemake (1962) 203 Cal.App.2d 140, 157; Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 500; see 4 Witkin, Summary of Cal. Law (10th ed. 2005) Sales, § 99, pp. 101-102.) The theory is that a manufacturer which makes affirmative representations as to the merits of the product can expect that the consumer will rely upon them. (See Cardinal Health, supra, 169 Cal.App.4th at pp. 143-144.) Plaintiffs thus allege that the class members were parties to the express warranty. (See Cal. U. Com. Code, § 2313 [describing express warranties as promises made by sellers relating to their goods that become part of the basis of the bargain]; 4 Witkin, Summary of Cal. Law, supra, Sales, § 202, p. 182, citing to Greenman v. Yuba Power Products (1963) 59 Cal.2d 57.)

However, "where the subject of the action is an implied warranty—i.e., one that is implied in law and did not originate from the manufacturer's own statements or conduct," privity is normally required for the claim. (Cardinal Health, supra, 169 Cal.App.4th at pp. 143-144, italics omitted.) For their cause of action for breach of the implied warranty of merchantability, plaintiffs must have "vertical privity" with the defendants, or "`occupy adjoining links in the [distribution] chain.'" (Kennedy, supra, 43 Cal.App.4th at pp. 810-811; Osborne v. Subaru of America, Inc. (1988) 198 Cal.App.3d 646, 656, fn. 6 (Osborne).)

There are exceptions to the requirement of vertical privity for implied warranty claims, such as where the manufacturer has affirmatively engaged in conduct "that functionally places the party in the position of the direct seller." (Cardinal Health, supra, 169 Cal.App.4th at p. 144; 4 Witkin, Summary of Cal. Law, supra, Sales, § 98, pp. 99-100.) For purposes of analyzing the class certification ruling, we will assume Plaintiffs have alleged sufficient facts that Defendants were functionally in the position of the direct seller. The more important issue is whether the statute of limitations defenses would have to be individually determined for each class member, and whether common issues exist on Plaintiffs' obligation to give timely notice of any claims or injury.

C. Evidentiary Issues Regarding Limitations Defenses

Plaintiffs do not plead their case as a strict products liability or negligence action, although both sides discuss authorities on delayed discovery that arise out of tort product liability cases. In Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 802-803 (Fox), the medical malpractice plaintiff also pursued a products liability cause of action (personal injury) against the manufacturer of a surgically implanted medical device. The manufacturer claimed untimely filing, but the court allowed plaintiff further leave to amend, stating: "In order to employ the discovery rule to delay accrual of a cause of action, a potential plaintiff who suspects that an injury has been wrongfully caused must conduct a reasonable investigation of all potential causes of that injury. If such an investigation would have disclosed a factual basis for a cause of action, the statute of limitations begins to run on that cause of action when the investigation would have brought such information to light." (Id. at pp. 808-809.)

In this comparable context of warranty and statutory claims, Plaintiffs plead that they could not have reasonably discovered facts supporting the cause of action within the applicable statute of limitations periods, and thus no more diligent investigation of the circumstances of the problem should have been required. (Fox, supra, 35 Cal.4th at pp. 808-809.)

Although we have shortcut the privity analysis for pleadings and class definition purposes, this procedural context next requires us to conduct some limited inquiry into the merits of the warranty and other claims, to the extent they were "enmeshed" in the commonality analysis, to determine if the class action is appropriate. (Linder, supra, 23 Cal.4th at pp. 435-436.) The question is whether the trial court had a reasonable basis to conclude there were not enough common issues to warrant class treatment on liability and damages issues. These topics include notice requirements under the warranty theories, as well as any common issues of breach of warranties.

1. Notice Within a "Reasonable Time" for Warranty Claims

For purposes of giving notice of a breach of warranty claim, the buyer is normally required to act within "a reasonable time." (Cal. U. Com. Code, § 2607, subd. (3)(A); 4 Witkin, Summary of Cal. Law, supra, Sales, § 201, p. 181.) Under California Uniform Commercial Code section 2725, subdivision (2), a cause of action for breach of warranty extending to future performance accrues when the breach is or should have been discovered. Here, the lifetime action/case parts warranty language requires a showing of a defect in material or workmanship, for Defendants to become obligated to repair the defect without charge, upon receiving notice within a reasonable time of a known defect. Likewise, the 12-year warranty for materials and workmanship is phrased in terms of defects, of which notice must be given.

In Fieldstone Co. v. Briggs Plumbing Products, Inc. (1997) 54 Cal.App.4th 357, 369, this court outlined the statutory requirements for giving a manufacturer "reasonable notice" of breach of any express warranties. (Cal. U. Com. Code, § 2607, subd. (3)(A).) We stated: "The question of whether notice was reasonable must be determined from the particular circumstances and, where but one inference can be drawn from undisputed facts, the issue may be determined as a matter of law. [Citations.]" (Fieldstone, supra, at p. 370.) There, the plaintiff purchaser knew the products (sinks) were defective for several years before giving warranty notice to the sellers. Based on all those circumstances, we found that plaintiff had not acted in a reasonably timely manner in giving notice (being generally aware of problems, although possibly not the specific causes of the problems). (Id. at pp. 369-371.)

These Plaintiffs are alleging justifiably delayed discovery due to the unusual nature of the defect. The evidence thus far shows that any problems with the action brackets of the pianos are slow to manifest themselves and to be detected by owners, based on any degrading quality of play. Different pianos performed differently, depending on their location and the conditions at the site. In their deposition testimony, the named Plaintiffs stated they are not aware of any activity on their parts to give notice of a warranty claim to Defendants, other than making a request for replacement parts.

Defendants provided undisputed evidence that only one half of one percent of YCA's portion of the affected product serial number range had manifested any damage giving rise to repair requests. From Plaintiffs' meager proof in their depositions about their observations of the products' performance, and their lack of efforts to investigate a degrading quality of play, and to give any type of notice of breach of warranty, the court had an adequate basis to infer that there would be mainly individualized questions about the existence of any duty to give warranty notice based on property damage. Individual issues about the performance of the product and applicability of warranty coverage, subject to an obligation to give notice, will predominate. Substantial evidence support may include any essential inferences the court drew from the presented facts. (Caro, supra, 18 Cal.App.4th at p. 655, fn. 6.) The trial court's ruling that individual factual and legal issues about any warranty obligations are predominant over classwide issues is supported by the record.

2. Causation of Individual Injury and Damage

To allege and prove a cause of action for breach of warranty, the plaintiff need not prove the product has already malfunctioned, "but only that it contains an inherent defect which is substantially certain to result in malfunction during the useful life of the product. The question whether an inherently defective product is presently functioning as warranted goes to the remedy for the breach, not proof of the breach itself." (Hicks, supra, 89 Cal.App.4th at pp. 917-918, 923 [discussing both express and implied warranties].) "We see no reason why a homeowner should have to wait for the inevitable injuries to occur before recovering damages to repair the defect and prevent the injuries from occurring." (Id. at p. 923, italics added.) However, if an alleged defect has not manifested itself during the product's useful life, the buyer has generally received what was bargained for. (Cardinal Health, supra, 169 Cal.App.4th at p. 152; Hicks, supra, at p. 923.)

Proof of damages presents many individual, not common, questions where recovery on an implied warranty of merchantability is sought. (Kennedy, supra, 43 Cal.App.4th at pp. 810-811.) In general, the measure of damages for breach of warranty is stated as the difference between "`the value of the goods accepted and the value they would have had if they had been as warranted.' [Citations.] Value is measured at the time and place of acceptance." (4 Witkin, Summary of Cal. Law, supra, Sales, § 203, p. 182.) Consequential damages are authorized for "[i]njury to person or property proximately resulting from any breach of warranty." (Cal. U. Com. Code, §§ 2715, subd. (2)(b), 2714, subd. (3); 4 Witkin, Summary of Cal. Law, supra, Sales, § 203, p. 183.) Plaintiffs' FAC seeks such damages.

However, the main evidence before the trial court was that about half of one percent of the pianos YCA had distributed (1/3 of all) had problems with the action brackets. Defendants' expert, Dr. Sheybany, did not think there was any reason to suspect that those action brackets which have not yet failed would ever fail in the future. Plaintiffs' expert, Dr. Ensha, stated that the growth of internal corrosion depends on environmental conditions, which vary, and there is no way to ensure the ongoing integrity of the brackets. Whether any action bracket problem had manifested itself depended on the circumstances where the piano was located. This demonstrates there are mainly individual issues of fact regarding certainty of damage, and about the purchaser's ability, under the circumstances, to give notice within a reasonable time of alleged breaches of warranty.

Where there are several "defect-manifestation scenarios," it is difficult to determine whether the products failed to live up to the implied warranty of merchantability, without proof of the history of each product and its problems. (Osborne, supra, 198 Cal.App.3d at p. 659.) In response to discovery requests, Plaintiffs could not provide any documents describing "the symptoms exhibited by the piano, any repairs performed on the piano, the cost of any such repairs [or] the adequacy of the repairs." Plaintiffs' evidentiary showing falls short of any meaningful demonstration that the pianos contained, or they were able to detect, "an inherent defect which is substantially certain to result in malfunction during the useful life of the product." (Hicks, supra, 89 Cal.App.4th at pp. 917-918, italics added.)

We acknowledge that "possible differences in the application of a statute of limitations to individual class members," including the named Plaintiffs, will not necessarily require denial of a class certification request, "`so long as the necessary commonality and . . . predominance are otherwise present.'" (Massachusetts Mutual Life Ins. Co. v. Superior Court (2002) 97 Cal.App.4th 1282, 1295 (Massachusetts Mutual).) Here, however, "[t]he questions respecting each individual class member's right to recover that would remain following any class judgment appear so numerous and substantial as to render any efficiencies attainable through joint trial of common issues insufficient, as a matter of law, to make a class action certified on such a basis advantageous to the judicial process and the litigants." (Lockheed Martin, supra, 29 Cal.4th at p. 1111; Block, supra, 65 Cal.App.4th at p. 542.) The substantive law applicable to the warranty claims, including the requirements of reasonable notice and proof of damage, was properly considered by the trial court in determining that the required commonality and classwide injury are lacking. (City of San Jose v. Superior Court, supra, 12 Cal.3d at p. 462.)

D. Additional Analysis: CLRA

The briefing on appeal addresses the CLRA issues only in the most general of terms, apparently on the (correct) assumption that they stand or fall with the warranty claims. The trial court specified that limitations issues were individual in nature as to proposed class members as to all causes of action, and we accordingly address the statutory requirements for certifying a class seeking such relief.

The CLRA, Civil Code section 1770, subdivision (a), makes unlawful certain unfair methods of competition and unfair or deceptive commercial practices, such as Plaintiffs' allegations that Defendants are: "(2) Misrepresenting the source, sponsorship, approval, or certification of goods or services;" or "(5) Representing that goods or services have . . . characteristics . . . benefits . . . which they do not have . . .;" or "(7) Representing that goods or services are of a particular standard, quality, or grade . . . ." Plaintiffs also alleged the activities of Defendants, in failing to implement warranty protections, violated the CLRA.

To obtain recovery under the CLRA, the plaintiff must qualify as "[a]ny consumer who suffers any damage as a result of the use or employment by any person of a method, act, or practice" unlawful under the Act. (Civ. Code, § 1780, subd. (a); Massachusetts Mutual, supra, 97 Cal.App.4th at p. 1292.) "[T]his limitation on relief requires that plaintiffs in a CLRA action show not only that a defendant's conduct was deceptive but that the deception caused them harm." (Massachussetts Mutual, supra, at p. 1292.) Actual reliance on misrepresentations must be established for an award of damages under the CLRA. (Cohen v. DirecTV (2009) 178 Cal.App.4th 966, 980; Caro, supra, 18 Cal.App.4th at pp. 668-670.)

The standards for evaluating commonality of issues are similar in Code of Civil Procedure section 382 class actions, and in class actions founded in the CLRA, Civil Code section 1781. (Caro, supra, 18 Cal.App.4th at p. 655, fn. 6.) Each statutory scheme will permit a class action "only when there are questions of law or fact which predominate over questions affecting individual members." (Massachusetts Mutual, supra, 97 Cal.App.4th at p. 1287; Caro, supra, 18 Cal.App.4th at pp. 666-669.) However, plaintiffs seeking to certify a class under the CLRA are not required to show "substantial benefit will result to the litigants and the court" from such an order. (Massachusetts Mutual, supra, at p. 1287, fn. 1.)

Where material misstatements have been made to a class of plaintiffs, and the record permits inferences of common reliance, sufficient commonality may be established to justify certification of the class. (Massachusetts Mutual, supra, 97 Cal.App.4th at pp. 1294-1295.) The record must support inferences of common reliance upon the defendant business's broadly disseminated, but materially deficient, representations, to allow causation of injury to be litigated in a class action. (Id. at pp. 1292-1294.) The trial court may also consider if there were other disclosures that might have amounted to sufficient "material information" that the plaintiffs needed to make a business decision. (Id. at pp. 1294-1295.)

Here, the trial court ruled that these CLRA claims would involve more individual than common questions associated with any of the 59,470 piano owners' reliance upon representations or nondisclosures by Defendants. These were reasonable inferences from the available evidence about commonality, that not all of the pianos would inevitably manifest damage from the action bracket composition, so as to put the potential class members on notice of a potential cause of action, enabling them to file it in a timely manner. Each piano is located in a different place, subject to different types of use and conditions, giving rise to individual levels of wear and tear. Not only individual damages would have to be proven, such as the cost of repairs or frequent tuning, but also the underlying substantially certain injury to each piano from the allegedly defective component. (Hicks, supra, 89 Cal.App.4th at pp. 916-918.) Even if we assume there was common reliance on the written warranty language, we cannot determine on this record that the trial court had to conclude that the alleged representations were actually relied on by all potential class members, or gave rise to injury under CLRA statutory standards.

In conclusion, the record does not reveal any abuse of discretion in the trial court's determination that individual issues of fact and law predominate over common issues. (Global Minerals, supra, 113 Cal.App.4th at p. 857.) The trial court stated at least one valid reason for denying the motion for class certification, and we affirm. (Cohen v. DirecTV, supra, 178 Cal.App.4th at p. 981.)


The order is affirmed. Each party to bear its own costs on appeal.

McDONALD, J. and O'ROURKE, J., concurs.


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