is unique which necessitates a mini-trial for each to determine whether such conditions
existed.” For example, Peviani claimed her apartment had rust stains on the countertop,
Judy claimed there was a mushroom growing out of her carpet, Lubbock asserted his
toilet was broken, and Caicedo-Valdez claimed there was a stain on the bathroom
vanity.
10
In regard to habitability, defendants faulted plaintiffs for failing to identify the
common evidence that pertained to the habitability and nuisance causes of action.
Additionally, defendants asserted there are no reported California cases certifying a
class for a habitability or nuisance claim. Defendants asserted each class member
would need to establish the existence of the defective conditions and the manner and
extent to which the condition(s) impacted the individual class member.
Moving to the security deposit class, defendants asserted that the law required an
individualized analysis of each resident’s apartment in order to evaluate whether an
unreasonable amount of the deposit was retained by defendants. Defendants asserted
their records reflected that several of plaintiffs’ declarants “left their units dirty with
appreciable damage.” As to paid utility bills being deducted from security deposits,
defendants asserted that “whether or not a particular tenant was charged for utilities that
were allegedly already paid requires an individualized inquiry into the tenant’s file.”
D. REPLY
Plaintiffs replied to defendants’ opposition. In regard to false advertising,
plaintiffs asserted there were common evidentiary issues because the focus of the claim
is defendants’ conduct—not the residents’ experiences. As to the habitability and
nuisance issues, plaintiffs contended there are common evidentiary issues because the
claims are focused on the common areas of the property. In regard to security deposits,
plaintiffs argued that fraudulent charges and a lack of documentation were so
widespread that a jury could find defendants acted in bad faith. Therefore, the security
11
deposit class could establish liability together, while their damages could be separately
litigated.
E. RULING
The trial court held a hearing on the motion on July 26, 2019. The record does
not include a reporter’s transcript of the hearing, but the minutes reflect the court
“inquire[d] of of [sic] all counsel re class similarities/subclasses,” and counsel presented
arguments. On October 15, 2019, the trial court issued a nine-page ruling denying the
motion for class certification as to all claims.
DISCUSSION
A. LAW AND STANDARD OF REVIEW
In a class action, “[t]he party advocating class treatment must demonstrate 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. [Citations.] ‘In turn, the “community of interest
requirement embodies 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 who can adequately represent the class.” ’ ” (Brinker Restaurant Corp.
v. Superior Court (2012) 53 Cal.4th 1004, 1021 (Brinker).)
In regard to the factor of predominant common questions, the question that must
be answered is “whether ‘the issues which may be jointly tried, when compared with
those requiring separate adjudication, are so numerous or substantial that the
maintenance of a class action would be advantageous to the judicial process and to the
12
litigants.’ [Citations.] The answer hinges on ‘whether the theory of recovery advanced
by the proponents of certification is, as an analytical matter, likely to prove amenable to
class treatment.’ [Citation.] A court must examine the allegations of the complaint and
supporting declarations [citation] and consider whether the legal and factual issues they
present are such that their resolution in a single class proceeding would be both
desirable and feasible. ‘As a general rule if the defendant’s liability can be determined
by facts common to all members of the class, a class will be certified even if the
members must individually prove their damages.’ ” (Brinker, supra, 53 Cal.4th at pp.
1021-1022, fn. omitted.)
Orders denying class certification are reviewed differently by appellate courts
than many other types of orders and judgments. “Under ordinary appellate review, we
do not address the trial court’s reasoning and consider only whether the result was
correct. [Citation.] But when denying class certification, the trial court must state its
reasons, and we must review those reasons for correctness. We may only consider the
reasons stated by the trial court and must ignore any unexpressed reason that might
support the ruling. [¶] We will affirm an order denying class certification if any of the
trial court’s stated reasons was valid and sufficient to justify the order, and it is
supported by substantial evidence. [Citations.] We will reverse an order denying class
certification if the trial court used improper criteria or made erroneous legal
13
assumptions, even if substantial evidence supported the order.” (Knapp v. AT&T
Wireless Services, Inc. (2011) 195 Cal.App.4th 932, 939 (Knapp).)3
B. THE ADVERTISING AND HABITABILITY CLASS
1. FALSE ADVERTISING
a. The Trial Court’s Ruling
In regard to the false advertising claim, the trial court denied class certification
due to a lack of commonality that would, in turn, cause the class to be unmanageable.
The trial court explained that the putative class members learned of the property in
different ways: some read defendants’ website, some toured the property, some read a
brochure, and some drove by the property. The trial court wrote, “One class member’s
a claim [sic] might be based upon an oral representation while another’s might be based
upon something stated in a brochure. And the representations could be about different
amenities or services. The numerous possible factual differences in these potential
claims evidences that there is no common question of fact. Moreover, the factual
differences in the content of the various alleged misrepresentations, and the manner in
which they may have been made, shows that there is no common question of law; the
3 “The trial court [is] not required to state its reasons in the order denying the motion.” (Knapp, supra, 195 Cal.App.4th at p. 939.) The trial court can express its reasons at the hearing on the motion or in a different document. (Id. at pp. 939-940.) In the instant case, the record does not include a reporter’s transcript. The trial court wrote a nine-page, single-spaced, ruling denying class certification. In the ruling, the trial court described some of the discussions at the hearing on the motion. Neither party asserts that, at the hearing, the trial court gave more reasons or different reasons for denying the motion than were given in the written ruling. Accordingly, we will assume the nine-page written ruling is a complete reflection of the trial court’s reasons for denying the motion.
14
factual difference in these alleged misrepresentations necessarily present different
inquiries into whether a particular misrepresentation was one of fact, was material, was
relied upon, and whether that reliance was reasonable.”
b. Analysis
Plaintiffs contend the trial court erred in its commonality analysis concerning the
false advertising claim because the trial court incorrectly treated reliance as a relevant
factor.
The false advertising cause of action is based upon Business and Professions
Code section 17500, which is known as the false advertising law (Chapman v. Skype
Inc. (2013) 220 Cal.App.4th 217, 226). “[T]o state a claim under . . . the false
advertising law, based on false advertising or promotional practices, ‘it is necessary
only to show that “members of the public are likely to be deceived.” ’ ” (Kasky v. Nike,
Inc. (2002) 27 Cal.4th 939, 951.) “ ‘Allegations of actual deception, reasonable
reliance, and damage are unnecessary.’ ” (People v. Orange County Charitable
Services (1999) 73 Cal.App.4th 1054, 1076; see also Day v. AT&T Corp. (1998) 63
Cal.App.4th 325, 332.)
“[T]he concept encompassed in the phrase ‘likely to be deceived’ has no
relationship to the concept of common law fraud, which is also sometimes referred to as
deception. A fraudulent deception must be actually false, known to be false by the
perpetrator and reasonably relied upon by a victim who incurs damages. None of these
elements are required to state a claim for injunctive relief under [Business and
Professions Code] section[s] 17200 or 17500. A perfectly true statement couched in
15
such a manner that it is likely to mislead or deceive the consumer, such as by failure to
disclose other relevant information, is actionable under these sections.” (Day v. AT&T
Corp., supra, 63 Cal.App.4th at pp. 332-333.)
Restitution and injunctive relief are the only remedies available under the false
advertising law. (Bus & Prof., § 17535; Shersher v. Superior Court (2007) 154
Cal.App.4th 1491, 1497.) Plaintiffs have sought restitution, in addition to injunctive
relief, for the alleged false advertising. “While a party seeking injunctive relief need
only prove that ‘ “members of the public are likely to be deceived” ’ by the defendant’s
false advertisements [citation], a party seeking restitution must also prove that the
defendant ‘may have . . . acquired’ ‘money or property’ ‘by means of [its] unfair
competition’ or false advertising.” (Downey v. Public Storage (2020) 44 Cal.App.5th
1103, 1114-1115.) That means plaintiffs seeking restitution “must prove that (1) the
class members were exposed to the advertisement, (2) the advertisement was deceptive,
and (3) the deception was material.” (Id. at p. 1115.) Deception is material “if ‘ “ ‘a
reasonable [person] would attach importance to’ ” ’ that falsity or omission ‘ “ ‘in
determining his [or her] choice of action in the transaction in question.’ ” ’ [Citations.]
And if a reasonable person would ‘attach importance’ to the falsity or omission, courts
can safely and logically ‘infer’ or ‘presume’ that ‘members of the public’ (from which
the putative class members are drawn) will rely on that falsity or omission in deciding
whether to purchase the good or service.” (Id. at p. 1116.)
In the trial court’s ruling, it explained, “[T]he factual differences in these alleged
misrepresentations necessarily present different inquiries into whether a particular
16
misrepresentation was one of fact, was material, was relied upon, and whether that
reliance was reasonable.” The trial court’s reasoning indicates that it confused the false
advertising cause of action (Bus. & Prof. Code, § 17500) with a fraud cause of action
(see Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239 [reliance is an
element of fraud]). In particular, the trial court’s discussion of reliance and the potential
need to have individualized inquiries into the issue of reliance demonstrates that the trial
court was mistaken concerning the legal basis for the false advertising cause of action
because individualized reliance is not a factor in a Business and Professions Code
section 17500 cause of action.
Not only did the trial court rely on irrelevant factors, it failed to discuss the
reasonable person standard, which is relevant to deception and materiality. Because the
trial court used incorrect legal factors when analyzing the issue, we conclude the trial
court erred. (See Knapp, supra, 195 Cal.App.4th at p. 939 [an order will be reversed if
the trial court “used improper criteria or made erroneous legal assumptions”].)
2. IMPLIED WARRANTY OF HABITABILITY AND NUISANCE
a. Habitability
i. Procedural History
Similar to the false advertising claim, the trial court found the habitability claim
lacked commonality, which would cause the class to be unmanageable. The trial court
wrote, “Plaintiffs allege the existence of multiple conditions that rendered the units
uninhabitable or constituted a nuisance, but Plaintiffs have made no showing that these
conditions were the same or even similar for every putative class member, or even a
17
majority of putative class members. For example, some declarations supporting the
motion allege that at times the pools were not usable, were closed, or were unsanitary.
Other declarants had no complaint about the pools. Some declarants alleged that there
were insufficient trash receptacles near their apartments, forcing them to use trash
receptacles in other parts of the [property]. Others said that there was trash strewn
about the [property] and that [the property’s] management did not take action other than
repeatedly emailing residents threatening ‘fines for leaving trash lying around.’ . . . One
declarant claimed . . . that the apartment was infested with fleas when she moved in.
Plaintiffs appear to argue that, taken together, these myriad defects rendered [the
property] entirely uninhabitable, or subject to a nuisance condition . . . . [I]t is not
evident from the declarations supporting the motion that the putative class members, or
named Plaintiffs, all experienced these conditions, or that the conditions occurred
throughout a particular time period.”
The trial court explained, “Because the basis for each putative class member’s
cause of action for breach of the warranty of habitability appears to be based upon a
different defect, or defects, and because a finder of fact would be required to determine
whether any such defects were substantial, each habitability claim would have to be
litigated individually and there would be no common issue primary to each individual
action. Furthermore, the evidence supporting the motion suggests that each putative
class member could be pursuing a different measure of damages, not merely a different
amount of damages.”
18
ii. Analysis
Plaintiffs contend the trial court erred by finding a lack of commonality
concerning their habitability claims.
“[A] warranty of habitability is implied by law in residential leases.” (Green v.
Superior Court (1974) 10 Cal.3d 616, 637.) The elements of a cause of action for
breach of the implied warranty of habitability “are the existence of a material defective
condition affecting the premises’ habitability, notice to the landlord of the condition
within a reasonable time after the tenant’s discovery of the condition, the landlord was
given a reasonable time to correct the deficiency, and resulting damages.” (Erlach v.
Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297.) The alleged defective
condition must “affect the tenant’s apartment or the common areas which he uses.”
(Hinson v. Delis (1972) 26 Cal.App.3d 62, 70, disapproved on another point in Knight v.
Hallsthammar (1981) 29 Cal.3d 46, 55, fn. 7.) When the alleged defect is in a common
area, the landlord’s duty to inspect and maintain the common area removes any excuse
by the landlord regarding a lack of knowledge. (Muro v. Superior Court (1986) 184
Cal.App.3d 1089, 1092, fn. 1.)
A violation of a statutory housing standard that affects health and safety is a
strong indication of a materially defective condition. (See Knight v. Hallsthammar,
supra, 29 Cal.3d at p. 59, fn. 10.) By statute, a dwelling will be considered
untenantable if (1) the “[b]uilding, grounds, and appurtenances” are not “clean, sanitary,
and free from all accumulations of debris, filth, rubbish, garbage, rodents, and vermin”
(Civ. Code, § 1941.1, subd. (a)(6)); or (2) the dwelling substantially lacks “[a]n
19
adequate number of appropriate receptacles for garbage and rubbish, in clean condition
and good repair” (Civ. Code, § 1941.1, subd. (a)(7)).
Plaintiffs’ warranty of habitability cause of action is solely focused on the
common areas of the property. The trial court wrote in its ruling, “Plaintiffs allege the
existence of multiple conditions that rendered the units uninhabitable or constituted a
nuisance, but Plaintiffs have made no showing that these conditions were the same or
even similar for every putative class member, or even a majority of putative class
members.” (Italics added.) The trial court appears to have jumbled the false advertising
claims with the habitability claims. The habitability claims pertain to the common
areas. The alleged defects in the individual units pertain to the false advertising
allegations. Because the habitability cause of action is about the common areas—not
individual units—the trial court’s reasoning does not correspond to plaintiffs’
allegations.
Further, substantial evidence does not support the trial court’s conclusion. In
nearly every declaration, the declarants cited a combination of dog feces, trash, and
pests in the common areas. Whether the common areas were littered with filth and
debris and infested with pests (Civ. Code, § 1941.1, subd. (a)(6)) and whether there
were an adequate number of dumpsters in good condition (Civ. Code, § 1941.1, subd.
(a)(7)) are common questions of fact because the condition of the dumpsters and the
grounds is not an individualized issue—it is the same for everyone.
The Rudolphs lived in an apartment at the property from January 2014 to May
2017. In regard to filth and debris in the common areas, Zachary declared, “I frequently
20
encountered dog droppings. Over half the time I observed dog droppings on the
sidewalk, and almost all the time there were dog droppings in the grass. I observed this
throughout the complex.” Zachary also declared “there were regularly dog droppings
left near pool A. I often saw a family of skunks near pool A.” Westberg, who moved
into an apartment at the property in January 2015 and lived there for 13 months,
declared, “[T]here was usually trash strewn all over the complex . . . . [¶] I regularly
saw feces on the ground in common areas.” Cetta, who lived at the property from
September 2016 to July 30, 2017, declared, “Throughout my tenancy all of the common
areas were extremely messy. There were issues with bugs and insects throughout. [¶]
Dog poop was littered throughout the complex. You had to always pay attention to
where you walked due to the dog poop was [sic] everywhere. On one occasion I even
stepped in some.” Zachary testified that “[t]he property as a whole, now, wasn’t
covered” in “debris or rubbish or filth,” but that, approximately 50 percent of the time,
he encountered dog feces on the pathways/sidewalks and on the grass at the property.
The evidence indicates that, for years, there was consistently trash and feces in the
common areas of the property.
In regard to the dumpsters, Zachary declared that when they moved in during
2014 “the dumpsters were emptied two or three times a week. However, later on
[Zachary] observed that the dumpsters were emptied only once a week. [¶] Around the
time the dumpsters stopped being emptied more than once a week, [Zachary] observed
skunks around the dumpsters on an almost weekly basis.” In a deposition, Zachary
21
testified that the garbage was overflowing approximately 80 percent of the time and
emitted a strong foul odor “[m]ost of the time.”
Judy testified, in a deposition, that the dumpsters were only usable for the day
immediately following the trash trucks emptying the dumpsters. “Other than that, they
were completely overflowing, and trash would be all around the ground.” Judy said the
garbage spilled out of the dumpster enclosure “into the street.” Judy saw “skunks and
different vermin” in the dumpster enclosures. Judy said there was one dumpster, the
furthest from her apartment, that “wasn’t always overflowing.” Westberg, who moved
in in 2015, declared, “Most of my time at [the property], the dumpsters were
overflowing and smelled bad (even for dumpsters).” The other declarants, most of
whom moved in in 2016, all complained of overflowing garbage.
In a declaration, Robert S. Griswold, who specializes in real estate management,
declared that he visited the property and “reviewed a map of the property highlighting
the location of garbage bins.” Griswold declared that defendants claimed the property
“has eleven 4-yard roll off trash bins which each can hold at least 48 standard trash bags
or 800 pounds of refuse. Further, that [the property] also has eight 4-yard recycling bins
which hold the same amount of recyclables. The bins are emptied three times a week
on Mondays, Thursdays, and Saturdays. The number of bins and frequency of trash
pickup is consistent with industry standards for an apartment complex the size of [the
property].”
The evidence does not demonstrate that there are individualized issues
concerning the habitability of the common areas. Instead, it shows that similar
22
questions will arise among each member of the putative class. For example, was there a
sufficient number of dumpsters, did the garbage overflow, were there pests, and was
there dog feces on the ground. Thus, the evidence does not support the trial court’s
conclusion that plaintiffs failed to show common issues.
In its ruling, the trial court concluded the habitability issues would be
unmanageable as a class action. However, the trial court’s understanding of the cause
of action was flawed when it made that conclusion. The trial court believed the
habitability cause of action pertained to problems in individual units, such as a flea
infestation. Because the trial court misconstrued the habitability cause of action, we
cannot rely upon its exercise of discretion pertaining to manageability.
In regard to the element of damages, the trial court concluded there was a lack of
commonality due to the different options for measuring damages. The trial court
believed that individual members of the putative class might seek different measures of
damages. The methods of measuring damages for a landlord’s breach of the warranty
of habitability include (1) the difference between the rent paid and the amount of rent
that would have been reasonable given the defect; (2) “the difference between the fair
rental value of the premises had they been in the condition warranted and their fair
rental value with the uninhabitable condition [citation;] and ([3]) the rent paid by the
tenant multiplied by the percentage of the premises rendered unusable due to the
uninhabitable condition.” (Erlach v. Sierra Asset Servicing, LLC, supra, 226
Cal.App.4th at pp. 1279-1280.)
23
“ ‘As a general rule if the defendant’s liability can be determined by facts
common to all members of the class, a class will be certified even if the members must
individually prove their damages.’ ” (Brinker, supra, 53 Cal.4th at pp. 1021-1022.)
The differing methods of measuring damages does not defeat commonality in regard to
issues of liability. If members of the putative class need to individually establish their
damages, they may still establish liability as a class.
Next, the trial court expressed concern that the problems may have been
intermittent, such that not every member of the putative class would have experienced
these alleged problems. Arguably, that concern pertains to damages, which can be
separated from liability. Nevertheless, to the extent the constant nature of the problem
is relevant to liability, the evidence does not support the trial court’s conclusion.
The Rudolphs lived in an apartment at the property from January 2014 to May
2017. Zachary complained of dog feces throughout the property and skunks near the
pool. Westberg, who moved into the property in January 2015 and lived there for 13
months, complained of dog feces and trash in the common areas. Cetta, who lived at
the property from September 2016 to July 30, 2017, complained of dog feces and
insects in the common areas. The evidence indicates that, for years, there was
consistently trash, feces, and pests in the common areas of the property. Therefore, the
evidence does not support the conclusion that alleged problems with the common areas
were intermittent.
Defendants contend there is a lack of commonality regarding habitability issues
because each member of the putative class would need to prove that s/he was impacted
24
by the alleged defects. Civil Code section 1941.1 provides, “A dwelling shall be
deemed untenantable” if it lacks sanitary common areas and adequate trash receptacles.
(Civ. Code, § 1941.1, subd. (a)(6)&(7).) Landlords have a duty to maintain their
buildings in a condition that make them fit for human habitation and to “ ‘repair all
subsequent dilapidations thereof, which render it untenantable.’ ” (Knight v.
Hallsthammar, supra, 29 Cal.3d at p. 53.) Evidence of the extent to which the allegedly
untenantable building impacted each putative class member may be relevant to
damages, but that evidence is not necessary for liability. (Id. at p. 54 [a landlord can
breach the warranty of habitability despite a tenant being unaware of a defect].)
Because damages can be tried separately, a lack of commonality regarding damages
does not defeat class certification.
Next, at oral argument in this court, defendants contended there is a lack of
commonality because the dumpsters did not become an issue until 2015 or 2016 and the
class is defined as starting in 2013. “The ‘predominant common questions’ factor does
not require that all class members have identical claims. Rather, the focus is on whether
issues shared by the class members are sufficiently uniform to permit class-wide
assessment, and whether individual variations in proof on those issues are manageable.
[Citation.] [¶] ‘The certification question is “essentially a procedural one that does not
ask whether an action is legally or factually meritorious.” ’ [Citation.] ‘A class
certification motion is not a license for a free-floating inquiry into the validity of the
complaint’s allegations; rather, resolution of disputes over the merits of a case generally
must be postponed until after class certification has been decided [citation], with the
25
court assuming for purposes of the certification motion that any claims have merit.’ ”
(Gonzales v. San Gabriel Transit, Inc. (2019) 40 Cal.App.5th 1131, 1149.)
The habitability class is defined as “ ‘All persons (excluding officers, directors,
and employees of Defendants) who paid rent at [the property] from March 15, 2013 to
the present.’ ” The habitability cause of action asserts the common areas of the property
were untenantable. The class is not focused solely on dumpster issues, it is focused on
broader habitability problems that include trash, feces, and pests in the common areas of
the property, and the dumpsters are a piece of that.
If the cases were tried on an individual basis, the same common question, i.e.,
were the common areas habitable, would lead to the same factual questions, e.g., were
the common areas littered with trash and feces, were there pests, and did the dumpsters
overflow? It may be that plaintiffs currently have weak evidence pertaining to the
dumpster issue prior to 2016 but a possible evidentiary weakness in plaintiffs’ case does
not mean that the common issue is somehow altered or that the factual dispute would be
presented differently if the cases were tried separately. In every case, the question will
remain: what was the condition of the common areas of the property.
Next, defendants contend there are no reported cases in California in which a
cause of action for breach of the warranty of habitability was prosecuted by a class. To
the extent defendants are asserting such a class cannot be certified because no California
appellate court has chosen to publish a case on the topic, we find that argument to be
unpersuasive. A lack of published cases in the state does not create a prohibition.
Nevertheless, if a published case is needed, one could look to federal cases. (Techer v.
26
Roberts-Harris (D.Conn. 1979) 83 F.R.D. 124, 131 [“The questions of law and fact
whether a warranty of habitability pertains to HUD leases and whether HUD has
breached that warranty are common to all tenants at OMG”]; Thomas v. Louisiana-
Pacific Corp. (D.S.C. 2007) 246 F.R.D. 505, 507, 514, 517 [certifying a class for a
lawsuit alleging breach of the warranty of habitability]; McNeill v. New York City
class for a lawsuit alleging breach of the warranty of habitability].)
One federal case that is particularly relevant is Johns v. Rozet (D.D.C. 1992) 141
F.R.D. 211, 216, in which the court wrote, “The second requirement is also met,
because there are questions of law or fact common to the class. These include the
factual determination of the living conditions existing in the common areas of Tyler
House, and legal issues including whether there was a breach of warranty of
habitability, negligence, public nuisance, and fraud in the existence of these conditions
and failure to repair them.”
b. Nuisance
i. Procedural History
In the fifth amended complaint, in the nuisance cause of action, plaintiffs alleged,
“Throughout the Property, including the common areas, there exists a substantial
accumulation of dog-droppings, debris, junk, rodents, garbage, and similar materials
and conditions. This is a substantial problem common throughout the entire Property.
[Citation.] [¶] There are an inadequate number of community trash receptacles, which
are regularly overflowing and emit a strong, noxious, and foul smell. The failure to
27
provide such receptacles is substantial, and is hazardous and unsafe. This is a problem
common throughout the entire Property.” In nearly every declaration submitted by
plaintiffs, the declarants cited a combination of dog feces and trash littering the common
areas, rodents and pests in the common areas, as well as overflowing garbage at the
community dumpsters.
In its ruling, the trial court wrote, “The habitability/nuisance/implied
warranty/unfair competition causes of action . . . are limited to alleged nonspecific
misrepresentations about the habitability of the property, i.e., representations about the
physical condition of the individual units and about the physical condition of the
common areas in relation to the impact on individual units or occupants.” The court
continued, “Plaintiffs allege the existence of multiple conditions that rendered the units
uninhabitable or constituted a nuisance, but Plaintiffs have made no showing that these
conditions were the same or even similar for every putative class member, or even a
majority of putative class members. For example, . . . Others claimed that their
neighbors were loud and argued frequently so as to require police intervention. One
declarant claimed she left her apartment better than she found it, and that the apartment
was infested with fleas when she moved in. Plaintiffs appear to argue that, taken
together, these myriad defects rendered [the property] entirely uninhabitable, or subject
to a nuisance condition.”
The trial court concluded, “Based on the declarations offered in support of the
motion for class certification, it is not clear that any one condition affected all residents,
or former residents, of [the property] in the same way. It is also not clear that any one
28
condition was injurious to health, indecent, offensive, or obstructed the free use of any
part of [the property] or any particular apartment for a specific period.”
ii. Analysis
Plaintiffs contend the trial court erred in finding a lack of commonality for the
nuisance cause of action.
When reviewing an order denying class certification, we review the trial court’s
reasoning for correctness. “We may only consider the reasons stated by the trial court
and must ignore any unexpressed reason that might support the ruling.” (Knapp, supra,
195 Cal.App.4th at p. 939.) In order to be affirmed, the trial court’s ruling must have a
rational basis. (Dean Witter Reynolds, Inc. v. Superior Court (1989) 211 Cal.App.3d
758, 764-765.)
In the fifth amended complaint, plaintiffs’ nuisance allegations are focused on
the common areas of the property. The declarations submitted by plaintiffs describe
unsanitary common areas due to dog feces, trash, and pests.
In analyzing the commonality of the claims, the trial court included unit-specific
claims, such as flea infestations, along with the common area allegations. Thus, the trial
court misconstrued the nuisance cause of action. Because the trial court’s commonality
analysis includes allegations that were not part of the nuisance cause of action, the trial
court’s analysis is unreliable. (See Dean Witter Reynolds, Inc. v. Superior Court, supra,
211 Cal.App.3d at pp. 764-765 [trial court’s ruling must have a rational basis].)
The evidence discussed ante, in relation to the habitability cause of action, is also
relevant to the nuisance cause of action. In nearly every declaration, the declarants cited
29
a combination of dog feces, trash, and pests in the common areas. The evidence does
not demonstrate that there are individualized issues concerning an alleged nuisance in
the common areas. Instead, it shows that similar questions will arise among each
member of the putative class. For example, was there an excessive amount of dog
feces, trash, and pests in the common areas?
At oral argument in this court, without providing a citation and without providing
a letter to the court explaining why the case was not discovered sooner (Cal. Rules of
Court, rule 8.254), defendants urged this court to look at the “City of San Jose” case.
We assume defendants were referring to City of San Jose v. Superior Court (1974) 12
Cal.3d 447, which is a nuisance case. In that case, real property owners “on behalf of
themselves and all real property owners situated in the flight pattern of the San Jose
Municipal Airport” sued the City of San Jose (the City). The plaintiffs sought
“recovery for diminution in the market value of their property caused by aircraft noise,
vapor, dust, and vibration . . . on theories of nuisance and inverse condemnation.” (Id.
at pp. 452-453.)
At the Supreme Court, the City contended the trial court erred in certifying the
class because there was “an insufficient community of interest.” (City of San Jose v.
Superior Court, supra, 12 Cal.3d at p. 458.) The Supreme Court agreed that the trial
court had erred. (Ibid.) The high court explained that the proposed class was diverse
and included “industrial plants, public buildings, body shops, warehouses, gas stations,
office buildings, multi-unit apartments, single family residences, and vacant land—
some being farmed.” (Id. at p. 461.) The high court explained, “While landing or
30
departure may be a fact common to all, liability can be established only after extensive
examination of the circumstances surrounding each party. Development, use,
topography, zoning, physical condition, and relative location are among the many
important criteria to be considered. No one factor, not even noise level, will be
determinative as to all parcels.” (Ibid, fn. omitted.) The court continued, “Then,
because liability is here predicated on variables like the degree of noise, vapor, and
vibration, the problem is compounded by the factors of distance and direction affecting
these variables.” (Id. at p. 462.) The court concluded that the matter could not proceed
as a class action due to a lack of commonality. (Id. at pp. 458, 462-463.)
The nuisance claim in the instant case concerns the condition of the common
areas of the property. The property is a residential property. Thus, the instant case
involves the same property (common area) that is used for the same residential purpose.
That distinguishes this case from City of San Jose, in which the properties were in
different locations and used for different purposes. Given the factual differences
between the two cases, we do not find the commonality analysis of City of San Jose to
be persuasive in the instant case.
6. CONCLUSION
In regard to false advertising, the trial court erred by relying on incorrect legal
factors. (Knapp, supra, 195 Cal.App.4th at p. 939 [an order will be reversed if the trial
court “used improper criteria or made erroneous legal assumptions”].) For habitability
and nuisance, the trial court misconstrued the causes of action by not recognizing that
31
they are solely focused on the common areas. In sum, we conclude the trial court erred
by denying certification of the advertising and habitability class.
C. SECURITY DEPOSIT CLASS
A landlord may use a security deposit to pay for repairing “damages to the
premises, exclusive of ordinary wear and tear, caused by the tenant or by a guest or
licensee of the tenant.” (Civ. Code, § 1950.5, subd. (a)(2).) A landlord may not use a
tenant’s security deposit to repair any conditions that preexisted the tenant’s occupancy
“or for the cumulative effects of ordinary wear and tear occurring during any one or
more tenancies.” (Civ. Code, § 1950.5, subd. (e).) A landlord’s bad faith retention of
the security deposit in violation of the foregoing law may subject the landlord “to
statutory damages of up to twice the amount of the security, in addition to actual
damages.” (Civ. Code, § 1950.5, subd. (l).)
The elements of an action for wrongful retention of a security deposit under Civil
Code section 1950.5 are: (1) the plaintiff paid a security deposit; (2) the security
deposit was for a residential property; (3) the plaintiff used the property as a dwelling;
and (4) the amounts deducted by the defendant were not reasonably necessary. If the
plaintiff is seeking punitive damages, then it must also be shown that the defendant
made the deductions in bad faith. (Civil Code, § 1950.5, subds. (a), (e) & (l).)
The only elements that are disputed in this case are (1) whether the deductions
were reasonably necessary, which is defendants’ burden to prove (Civ. Code, § 1950.5,
subd. (l)), and (2) whether the deductions were made in bad faith such that the class
would be entitled to punitive damages (Civ. Code, § 1950.5, subd. (l)). Damages,
32
including punitive damages, can be decided separately from liability, so individual
issues pertaining to damages generally do not bar class certification. (Brinker, supra, 53
Cal.4th at pp. 1021-1022 [discussing general damages]; Lewis v. Robinson Ford Sales,
Inc. (2007) 156 Cal.App.4th 359, 371 [discussing punitive damages].) Thus, the
primary question for the security deposit class, in regard to commonality for class
certification, is whether common evidence predominates concerning the reasonableness
of defendants’ deductions.
There is an interesting twist regarding this issue. In the motion for class
certification, plaintiffs bear the burden of proving commonality. However, at trial, it is
defendants who bear the burden of proving the reasonableness of their security deposit
deductions. Thus, plaintiffs were in a predicament in regard to the certification motion,
in that they had to establish that there would be common evidence on an element for
which they did not bear a burden of proof.
In its ruling, the trial court denied class certification for the security deposit class
because it determined individualized evidence would predominate, which meant there
was a lack of commonality and the class would be unmanageable. The trial court wrote,
“In the absence of a uniform bad-faith policy of security deposit retention, the Court
cannot preclude Defendants from raising offset claims particular to each deposit
deduction, and these deposit-deduction inquiries would be highly individualized.”
The trial court’s reasoning missed the mark in two respects when analyzing
commonality. The trial court wrote that plaintiffs’ evidence did “not reflect a pattern
that even remotely suggests Defendants had a bad faith policy of retaining security
33
deposits throughout the relevant time period.” The first problem is that the trial court
focused on bad faith/punitive damages, rather than the reasonableness of the deductions,
which concerns liability. Damages can be dealt with apart from liability and “generally
do not defeat certification.” (Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1,
30.) The trial court should have focused on liability, rather than damages. (Brinker,
supra, 53 Cal.4th at p. 1021 [commonality hinges on plaintiff’s theory of liability].)
The second problem is that the trial court discussed plaintiffs’ evidence as though
plaintiffs had to prove a likelihood of prevailing on their theory. The focus, at the class
certification stage, should be on plaintiffs’ theory of liability—not on their likelihood of
prevailing. (Brinker, supra, 53 Cal.4th at p. 1021 [commonality hinges on plaintiff’s
theory of liability].) Merit-based challenges are not part of the certification process
because substantial discovery could be “required if plaintiffs [were] expected to make
meaningful presentations on the merits,” which would “render the certification process
more protracted and cumbersome.” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429,
440-441.) Accordingly, it is not reasonable to deny class certification based on
perceived weaknesses in plaintiffs’ evidence concerning punitive damages.
Another reason given by the trial court for denying class certification was that
defendants could “litigate the amounts deducted from the security deposit of each
vacating tenant on an individual basis.” In support of their opposition to the class
certification motion, defendants sought to show the reasonableness of their deductions
via the declaration of Brandie Ellis, who manages the property. Ellis processes the
paperwork for move-ins and move-outs. When a tenant moves out, Ellis or another staff
34
member inspects the unit for cleanliness, wear and tear, and damage. Ellis “review[s]
the results from the inspection . . . and determine[s] what, if any, charges should be
assessed to the vacating tenant.”
Ellis reviewed the declarations submitted by plaintiffs and then reviewed
defendants’ files pertaining to the declarants. Ellis found the following: (1) defendants
have no record of Caicedo-Valdez residing at the property, so defendants would not
have refunded a security deposit to her; (2) Lubbock did not document preexisting
damage. When Lubbock moved-out “the unit was dirty with appreciable damage,
including debris throughout the unit, a broken microwave handle, damage to the walls
and deep stains in the carpet”; (3) Mendez’s apartment had a hole in the carpeting that
required repair upon her vacating the unit; (4) When McConville vacated, the unit had
“several deep carpet stains (including bright red stains), a broken window blind, and
badly stained vinyl flooring in the bathroom”; (5) When Cetta vacated, the unit was
“very dirty” including “a tire on the patio.” Ellis cited to photographs of the different
units to support her assertions regarding the condition of the units.
Also in support of their opposition, defendants provided the declaration of Robert
S. Griswold, who has more than 35 years of experience in real estate management.
Griswold reviewed the motion for class certification, including all the evidence in
support of the motion, plaintiffs’ written discovery responses, a sample of itemized
statements for security deposit deductions, and defendants’ evidence. Griswold also
toured the property. Griswold declared, “[B]ased on my experience, the deductions
made did not appear unreasonable.” Griswold went on to explain why plaintiffs’
35
expert’s opinion, concerning the unreasonableness of defendants’ deductions, was
incorrect.
The foregoing evidence reflects defendants have options for proving the
reasonableness of their deductions. (Civ. Code, § 1950.5, subd. (l) [defendants bear the
burden of proof].) They could present Ellis’s testimony regarding each moveout and/or
they could present Griswold’s testimony about the reasonableness of their deductions.
It is unclear if defendants plan to present the reasonableness of their deductions: (1)
primarily via Ellis testifying about individual moveouts; (2) primarily through the
opinions of experts who review the records outside of court; or (3) an equal mixture of
both.
In plaintiffs’ attorney’s declaration, he declared, “ ‘From the period beginning in
March of 2013 thru June of 2017 there were 1,413 lease agreements for the apartment
units, which may include leases in which a tenant moved from one apartment to another
in the complex.’ ” It is unclear how many of the 1,413 lease agreements were renewals,
how many were transfers to a different roommate, or how many were complete
moveouts. If one were to assume that an arbitrary number such as 50 percent, i.e. 700,
were complete moveouts and all 700 had paid a security deposit, and it were further
assumed that defendants’ trial plan is to have Ellis testify about all 700 moveouts, then
two questions come to mind regarding manageability. The first question is whether the
trial court would allow all of that testimony to occur or, if at some point, the testimony
would become cumulative. (Evid. Code, § 352.) For example, if Ellis testified
regarding 100 moveouts, and only two of them showed unreasonable deductions, would
36
the trial court allow the testimony to proceed or would the issue of reasonableness have
been proven on that point?
The second question concerning manageability is whether the trial court would
allow testimony about all the deductions or only the allegedly unreasonable deductions.
In the trial court’s ruling it set forth a list of 24 questions that would need to be asked
about every moveout, such as “(6) whether repairs were necessary; (7) whether amounts
charged for particular repairs were necessary; (8) the age and expected useful life of
certain items, including carpet, paint, carpet pad, and appliances in each apartment.”
Presumably, by the time of trial, the allegedly unreasonable deduction(s) for each
moveout will have been identified such that defendants will not have to present
evidence for every deduction for every moveout. For example, McConville declared
that defendants took a pet odor deduction from her security deposit despite her not
having a pet. For McConville’s moveout, it may not be necessary to present evidence
of repairs and carpet pads; it would only be necessary to present evidence of pets and
pet odor.
In the trial court’s ruling, the court fails to consider that it can control the
presentation of evidence (McDaniel v. Superior Court (1976) 55 Cal.App.3d 803, 805),
and if there is a point where the evidence is cumulative on the issue of reasonableness,
then the trial court can halt the introduction of further evidence on that topic. (Evid.
Code, § 352.) We fail to see why, in order to prove the reasonableness of their
deductions, defendants would need to go through every deduction for every moveout.
A detailed analysis such as that might be necessary for some claims of damages, but it
37
would not be necessary for reasonableness. Reasonableness involves the decision-
making process, the criteria, and the consistency of the decision-maker, who in this case
appears to be Ellis. If the criteria are reasonable and the criteria are consistently
applied, then reasonableness is properly proven by common evidence. In sum, we
conclude the trial court erred by concluding there is a lack of commonality.
Additionally, because the trial court’s commonality finding was flawed, its related
conclusion pertaining to manageability is unreliable.
D. BUSINESS AND PROFESSIONS CODE SECTION 17200
1. PROCEDURAL HISTORY
Plaintiffs brought three causes of action alleging unlawful, unfair, or fraudulent
business practices. (Bus. & Prof. Code, § 17200.) All three causes of action were
brought on behalf of the advertising and habitability class.
In the sixth cause of action, plaintiffs alleged unfair business practices (Bus. &
Prof. Code, § 17200) due to (a) the alleged false advertising, (b) the common areas
being untenantable, and (c) the leases having an unlawful liquidated damages clause for
early moveouts.
In the seventh cause of action, plaintiffs alleged unlawful business practices
(Bus. & Prof. Code, § 17200) due to (a) the alleged false advertising; (b) the common
areas being untenantable; and (c) defendants allegedly violating Civil Code section
1950.5 by (i) making improper deductions from security deposits, and (ii) failing to
provide statements and documentation for security deposit deductions. In the eighth
38
cause of action, plaintiffs alleged fraudulent business practices (Bus. & Prof. Code, §
17200) due to false advertising.
The trial court’s ruling addressed the Business and Professions Code section
17200 causes of action only briefly. In the portion of the ruling concerning the
advertising and habitability class, the trial court wrote, “Plaintiffs’ assertion relating to
the habitability/nuisance/breach of implied [covenant] of good faith and fair
dealing/unfair competition causes of action is similarly unsupported by Plaintiffs’ own
evidence. It is not entirely clear from Plaintiffs’ evidence or argument how the alleged
misrepresentations, or alleged policy of misrepresentation, is linked to
habitability/nuisance/breach of implied [covenant] of good faith and fair dealing/unfair
competition but it appears that Plaintiffs contend the unspecified misrepresentations
were that [the property] was a luxury complex when in fact it was uninhabitable or that
numerous nuisances on the property impacted the ability of putative class members to
use and enjoy their apartments.”
2. ANALYSIS
“[W]hen denying class certification, the trial court must state its reasons, and we
must review those reasons for correctness. [Citation.] We may only consider the
reasons stated by the trial court and must ignore any unexpressed reason that might
support the ruling.” (Knapp, supra, 195 Cal.App.4th at p. 939.)
The trial court did not provide additional reasons for denying class certification
as it pertained to the three Business and Professions Code section 17200 causes of
action. (See generally Sevidal v. Target Corp. (2010) 189 Cal.App.4th 905, 918 [“we
39
examine each alleged caused of action to determine whether it is appropriate for class
treatment”].) We have concluded ante that the trial court erred in its reasons for
denying class certification. Because the trial court’s reasons for denying class
certification related to Business and Professions Code section 17200 causes of action
are the same as for the other causes of action, we conclude the trial court erred in
relation to these three causes of action as well.
E. REMAINING ISSUES
In the appellants’ opening brief, plaintiffs raise a variety of issues, such as the
class being sufficiently numerous and the class being ascertainable. When reviewing an
order pertaining to class certification, we review only the reasons given by the trial
court. We do not address any unexpressed reasons. (Mies v. Sephora U.S.A., Inc.
(2015) 234 Cal.App.4th 967, 980.)
In our discussion ante, we reviewed the trial court’s reasons for denying class
certification. The trial court did not address issues such as whether the putative class
was sufficiently numerous and ascertainable. Because the trial court did not express an
opinion as to those issues, we cannot express an opinion as to those issues. Therefore,
we do not address the issues raised by plaintiffs that are outside the scope of the trial
court’s expressed reasons.
40
DISPOSITION
The order is reversed. Appellants are awarded their costs on appeal. (Cal. Rules
of Court, rule 8.278(a)(1).)
MILLER Acting P. J.
We concur:
CODRINGTON J.
RAPHAEL J.
41
Filed 4/6/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
ORDER
KELLEY PEVIANI et al., E073950 Plaintiffs and Appellants, (Super.Ct.No. RIC1704192) v. The County of Riverside ARBORS AT CALIFORNIA OAKS PROPERTY OWNER, LLC, et al., Defendants and Respondents. _______________________________________
THE COURT
The requests for publication of the nonpublished opinion filed in the above matter March 26 and March 29, 2021, are GRANTED. The opinion meets the standards for publication as specified in California Rules of Court, rule 8.1105(c)(2), (3), and (6).
IT IS SO ORDERED that said opinion filed March 9, 2021, be certified for publication pursuant to California Rules of Court, rule 8.1105(b).
CERTIFIED FOR PUBLICATION
MILLER Acting P. J. I concur:
RAPHAEL J.
AI Brief
AI-generated · verify before citing
Holding. The trial court erred in denying class certification by applying incorrect legal criteria, specifically by requiring proof of individual reliance for a false advertising claim and failing to properly evaluate commonality regarding habitability and nuisance claims.
Issues
Did the trial court err in denying class certification for a false advertising claim by requiring proof of individual reliance?
Did the trial court err in its commonality analysis regarding the habitability and nuisance claims by failing to consider whether common evidence could establish liability?
Disposition. Reversed.
Quotations verified verbatim against the opinion
“The trial court’s reasoning indicates that it confused the false advertising cause of action (Bus. & Prof. Code, § 17500) with a fraud cause of action”
“individualized reliance is not a factor in a Business and Professions Code section 17500 cause of action.”