Velasco v. Trimaco CA1/4

Filed 4/30/15 Velasco v. Trimaco CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

ROQUE A. VELASCO, Plaintiff and Appellant, A139288 v. TRIMACO, LLC, (Alameda County Super. Ct. No. RG12639754) Defendant and Respondent.

Roque A. Velasco appeals from the trial court’s order denying his motion for class certification. He contends that the trial court abused its discretion in denying the motion because it applied the wrong criteria in determining the motion. We affirm. I. FACTUAL BACKGROUND Trimaco, LLC (Trimaco) manufactures and sells rolls of paper for both commercial and household use in construction and painting. Since 2008, it has been selling its paper rolls in California primarily through Home Depot and Lowe’s. The rolls are labeled with their measurements, stating their total width and length. Velasco alleges that on November 27, 2010, he purchased a roll of Trimaco’s Builder’s Paper (Builder’s Paper), labeled with the measurements of 35 inches by 140 feet, from a Home Depot store in Newark. Upon measuring the roll, Velasco determined that the actual length of the roll was only 132 feet and nine inches. He alleges that other consumers have also purchased rolls of Builder’s Paper that are similarly short in length as compared to the length represented on the labels.

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On September 27, 2012, Velasco filed a first amended complaint on behalf of himself and others similarly situated seeking damages caused by Trimaco’s alleged practice of selling paper rolls that are shorter in length than represented on their labels. He alleged that Trimaco violated the Consumer Legal Remedies Act (Civ. Code, § 1750 et seq.) and the Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq.), and engaged in false advertising (Bus. & Prof. Code, § 17500 et seq.) and negligent misrepresentation. On March 15, 2013, Velasco moved to certify a class to include “ ‘all residents of the State of California who, at any time between July 18, 2008[,] and the date of class certification in this action, purchased one or more [p]aper [r]olls[] manufactured by Trimaco and sold at a retail store in [California].’ ” The trial court denied the motion, finding that it could not infer that a substantial number of paper rolls sold in California during the relevant time frame were materially short and that Velasco had not demonstrated how a trier of fact could determine how many rolls were short or by how much. The court also found that the proposed class was not ascertainable because there was no evidence that the proposed class members purchased short rolls or that they could be identified. The court further found that Velasco’s claims were not typical of the other members of the proposed class and that the monetary recovery for the claims of any purchaser who may have purchased shorter rolls would be relatively small. Finally, the court concluded that it would not be manageable to adjudicate the claims on a class basis. II. DISCUSSION A party seeking class certification must show “the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives.” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021 (Brinker); see Code Civ. Proc., § 382.) Whether a class is ascertainable is determined by examining the class definition, the size of the class and the means of identifying class members. (Miller v. Woods (1983) 148 Cal.App.3d 862, 873.) “The community of interest requirement involves three factors: ‘(1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives