Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCS021177
RIVERA, J.
Plaintiffs appeal after the trial court denied their motion for class certification. We conclude the trial did not abuse its discretion. Accordingly, we affirm.
I. BACKGROUND
Plaintiffs brought this action against Milgard Manufacturing Incorporated, Milgard Tempering Incorporated, and Milgard Family Limited Partnership (collectively Milgard). According to the complaint, plaintiffs owned mass-produced single family homes in the Pheasant Run subdivision in Dixon, and Milgard supplied and delivered windows that were installed in those houses. The complaint alleged that the windows were inherently defective. Plaintiffs sought to bring the action on their own behalf and on behalf of all California homeowners into whose homes defendants’ window products had been installed. The complaint alleged causes of action for strict products liability, breach of the implied warranties of fitness and merchantability, breach of express warranty, negligence, and violation of the Consumers Legal Remedies Act (CLRA) (Civ. Code, § 1750 et seq.).
Nearly all the plaintiffs herein were also plaintiffs in a construction defect action against the developer of Pheasant Run. In January 2006 while this action was pending, the plaintiffs in the construction defect case dismissed without prejudice all the claims related to the “window products, per se, installed in these Plaintiffs’ homes.” (See fn. 8, infra.)
Plaintiffs moved for an order certifying a class of California property owners whose buildings had one or more of certain models of Milgard aluminum single-hung windows and aluminum horizontal sliding windows.
A. Evidence Submitted by Plaintiffs
In support of their motion for class certification, plaintiffs submitted several declarations. Dr. Raymond W. LaTona, a structural and civil engineer with Simpson Gumpertz & Heger, Inc., consulting engineers, tested “the Window Products in eight houses” for their resistance to water in conditions designed to simulate rainstorms. He used two tests, the “sill track” test and the “spray rack” test. LaTona stated: “The performance of the sill track test on the Window Products produced leaks from the window frames,” and “Window[] Products . . . submitted to the spray rack test failed. The failures were primarily overtopping the sill extrusions.” Based on the information he had reviewed, his observation of the windows, the windows’ design drawing, the material used to create the lower corners of the windows, the sequence and method of assembling the products, and the conditions of the windows, LaTona opined that Milgard’s “1100” and “1500” series had inherent defects because the sill and jamb extrusions “were designed to be joined solely with screws and sealed with acrylic seam sealer, and given the shape of the ends of the jamb and sill extrusions,” the windows in the two series were “substantially certain to fail, i.e.[,] not fulfill their intended purpose, which includes but is not limited to keeping out water, during the expected useful life of the Window Product,” and that in the 1100 series, these problems were exacerbated by the design of the “louvered weep,” in that it was too small to drain the sill effectively and tended to become clogged and inoperable. According to LaTona, there were better windows available on the market, and Milgard’s windows were neither the “ ‘best windows’ ” nor the “finest possible windows.” Another engineer with the same company, Thomas A. Schwartz, offered similar opinions.
LaTona’s declaration did not indicate how many windows were tested. The protocol his company developed included selecting “representative windows for testing.”
The sill track test was designed to subject the windows to water ponding in the sill extrusion, as might happen during a rainstorm. The purpose of the spray rack test is to simulate the conditions a window experiences during a significant rainstorm that includes wind.
The 1100 series included models numbered 1100, 1110SH, 1110, 1110H, 1110S, 1180H, 1280, and 1280SH horizontal sliding windows. The 1500 series included models numbered 1500, 1510, 1570, 1580, 1670, 1680, S, H, and SH single-hung windows.
Defendants submitted objections to the declarations of LaTona and Schwartz on the ground that they failed to establish the foundational facts upon which LaTona and Schwartz could base their conclusions that the windows had inherent defects and were substantially certain to fail within their useful life. According to the objections, the declarations failed to address the criteria used for selecting the test windows, the series type of each window selected for testing, the approximate age of the test window, the total number of windows tested, and the test results for each window tested; they did not provide any foundation for the extrapolation of the test results to all the windows at issue; they did not identify the inherent defect in the windows; they did not provide any foundational information regarding the useful life of the windows; and they did not provide any foundation for the opinion that the windows were not the best or finest possible windows. In support of their reply, plaintiffs submitted a second declaration of LaTona, in which he testified that no windows tested were “ ‘cherry picked’ ”; that in selecting windows for testing, their goal was to include “windows that, in the aggregate, would have all or most of the environmental and experience variables that might affect window performance”; and that the windows chosen “had different direction exposure, some had been protected from weather by overhangs, some had no weather protection, all appeared undamaged by impact or abuse, all were operationally functional, and some of the windows tested appeared to have leaked previously, but many of the windows tested had no signs of past leakage.” According to LaTona, the testing provided information about how the windows perform and how they fail, and examining windows of varying age and environmental exposures provides more information than testing only new or pristine windows. LaTona’s second declaration included a listing of the windows tested, including type, elevation, room, and environmental exposure, but it did not include the results of the testing or indicate how many of the tested windows had leaked.
Plaintiffs also submitted numerous other documents, including materials from Milgard attesting to the quality of its windows and offering guarantees.
Declarations plaintiffs submitted with their reply brief in support of the motion for class certification indicated that the damage caused by leaks might not be visible and customers might be unaware of the leaks, and that when windows were removed, the experts saw windows and adjacent areas with signs of past water intrusion.
B. Evidence Submitted by Defendants
In opposition to the motion for class certification, Milgard submitted several expert declarations. Joel M. Wolf, a civil engineer, had subjected three Milgard window types, including a window from the 1100 series and one from the 1500 series, to approximately 1,000 hours of testing. The test conditions simulated 20 years of wind-driven rain and replicated the most severe climatic conditions of the major California markets for Milgard windows. Although the testing resulted in water build-up on the inner sill tracks of the horizontal slider and single-hung windows, there was no leakage or spills. Wolf opined that the windows, under simulated “ ‘real-life’ ” conditions, met their intended purpose of keeping water out of building interiors, and that their minimum useful life would be approximately 20 to 25 years.
Dr. Maureen Reitman, an engineer with a specialty in materials science and engineering, conducted tests on the sealant used in 1100 series and 1500 series windows, known as Schnee-Morehead 5504 Acryl-R acrylic seam sealer, and concluded it was suitable for sealing the joints of the windows and that its use was not an inherent defect in the windows.
Dr. Peter C. Reiss, a professor of economics with an expertise in statistics and industrial economics, performed a computer search of Milgard’s service records. He calculated that, even giving the records a liberal interpretation, there had been leak-related complaints about only 0.06 percent of Milgard’s aluminum windows sold in California since October 1990. Reiss’s declaration stated that the declaration of LaTona, one of plaintiffs’ experts, did not explain the method LaTona used to claim that field test results from windows in eight homes in a single subdivision could be generalized to support a conclusion that all windows in the 1100 and 1500 series were substantially certain to fail and would require frequent maintenance and extraordinary attention to keep out water, and that in fact the service records did not bear those claims out.
Dr. John R. Hauser, a professor of marketing, designed and had carried out a customer satisfaction survey for California homeowners of Milgard aluminum windows. He concluded that 90 percent of the owners were satisfied with their windows, of which 77 percent were “ ‘definitely satisfied,’ ” 3.3 percent were “ ‘definitely dissatisfied,’ ” 73 percent of people who responded to the survey had not experienced any problems with their windows, and only 5.2 percent of the respondents had experienced an interior corner leak.
C. Trial Court’s Ruling
The trial court denied the motion for class certification. As to the causes of action for strict liability and negligence, the court ruled that tort recovery was unavailable unless the defective product had caused damage to property other than the product itself and, therefore, class certification was inappropriate because the claims would depend on individualized proof of consequential damage. As to the remaining causes of action, the court concluded that plaintiffs had not shown common issues would predominate and that a class action would not be the superior way to adjudicate the issues. In particular, the court noted the test reports did not reveal the number and location of windows tested that failed, which test each window failed, or the percentage of windows that failed for each tested model, and stated: “Without this basic foundational information regarding the outcome of testing, and substantial likelihood of failure during useful life of the subject window models, this court cannot determine that common questions predominate . . . .” This timely appeal ensued.
For this conclusion, the trial court relied on Aas v. Superior Court (2000) 24 Cal.4th 627, 636, 639, and Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal.App.4th 908 (Hicks). Plaintiffs raise no arguments in connection with this portion of the trial court’s reasoning.
II. DISCUSSION
A. Standards for Class Certification
“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.’ To obtain certification, a party must establish the existence of both an ascertainable class and a well-defined community of interest among the class members. [Citations.] 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 who can adequately represent the class.’ [Citation.]” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435 (Linder).) On moving for class certification, the plaintiffs have the burden “not merely to show that some common issues exist, but, rather, to place substantial evidence in the record that common issues predominate.” (Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1108 (Lockheed).)
In addition, the trial court must carefully weigh the benefits and burdens of class litigation and allow a class action “ ‘ “only where substantial benefits accrue both to litigants and the courts.” ’ ” (Linder, supra, 23 Cal.4th at p. 435.) In doing so, the court considers “whether a class action is superior to individual lawsuits and other alternative procedures for resolving the controversy.” (Capitol People First v. State Dept. of Development Services (2007) 155 Cal.App.4th 676, 689.)
The question of whether a class should be certified is “ ‘essentially a procedural one that does not ask whether an action is legally or factually meritorious.’ [Citation.] A trial court ruling on a certification motion determines ‘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 or to the litigants.’ [Citations.]” (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326.) In reviewing a trial court’s class certification order, we consider whether the plaintiffs’ theory of recovery is likely to prove amenable to class treatment; to do so, we look to the allegations of the complaint and the declarations of the attorneys representing the plaintiff class. (Id. at p. 327.) Moreover, expert opinion is substantial evidence to support a class certification order “if it is based on relevant, probative facts, as opposed to mere guesswork, surmise, or conjecture.” (In re Cipro Cases I & II (2004) 121 Cal.App.4th 402, 412.)
Trial courts have “great discretion” in ruling on a motion for class certification. (Quacchia v. DaimlerChrysler Corp. (2004) 122 Cal.App.4th 1442, 1447 (Quacchia).) In the absence of other error, a trial court’s ruling that is supported by substantial evidence will not be disturbed unless the trial court used improper criteria or made erroneous legal assumptions. In reviewing an order denying class certification, we consider only the reasons given by the trial court, and ignore any other grounds that would support denial. (Ibid.) “ ‘Any valid pertinent reason stated will be sufficient to uphold the order.’ ” (Linder, supra, 23 Cal.4th at p. 436.)
B. Predominance of Common Issues
Bearing in mind the limited nature of our review, we conclude the trial court did not abuse its discretion in concluding that plaintiffs had not carried their burden to place substantial evidence in the record that common issues would predominate. (See Lockheed, supra, 29 Cal.4th at p. 1108.) The evidence plaintiffs submitted indicated that their experts had tested windows in eight houses—which were part of an ongoing construction defect action—and that the tests resulted in failures. There was no evidence, however, of what proportion of the windows failed the tests or which test they had failed. Nor, as was pointed out by Milgard’s counsel, was there any foundation provided that would justify extrapolation of the test results to the universe of windows at issue—approximately 1.3 million. The issue here is not one of the merits of the case—the trial court did not decide, on the merits, that plaintiffs’ expert evidence was not credible. Such a basis for its ruling, as plaintiffs point out, would have been improper. (See Linder, supra, 23 Cal.4th at pp. 439-440; Lebrilla v. Farmers Group, Inc. (2004) 119 Cal.App.4th 1070, 1084 [expert declaration presented “several reasoned and plausible explanations” as to why claims could be presented with common evidence; not court’s job to become involved with merits].) Rather, the court concluded that plaintiffs’ experts had failed to establish a foundation for their opinions that the windows were substantially certain to fail; and that without that foundation, the court could not determine that common issues would predominate. Bearing in mind plaintiffs’ burden to produce substantial evidence not just that common issues existed but that they would predominate (Lockheed, supra, 29 Cal.4th at p. 1108) and the gaps in plaintiffs’ offerings, we cannot fault the trial court’s ruling.
Plaintiffs point to the decision in Hicks in support of their contention that common issues would predominate. The court in Hicks considered whether the trial court had erred in denying class certification in an action alleging that the concrete foundations under the plaintiffs’ homes were defective. (Hicks, supra, 89 Cal.App.4th at pp. 911-912.) The foundations in question were made with a product known as Fibermesh, a polypropylene product, instead of welded wire mesh. The plaintiffs alleged causes of action for strict liability, negligence, and breach of express and implied warranties. (Id. at p. 912.) The trial court declined to certify the class on the ground that common issues did not predominate, concluding the plaintiffs had failed to present “ ‘any evidence of common manifest damage’ and ‘neither liability nor causation can be established without individualized analysis of each putative class member’s concrete slabs[.]’ ” (Id. at p. 916.) The Court of Appeal concluded the trial court had applied improper criteria in making this ruling with respect to the breach of warranty causes of action. (Ibid.) The defendant had warranted that its homes would be free of any defect resulting in or causing tangible damage to the foundation that materially diminished the structural integrity and load-bearing performance of the home for a period of 10 years. (Id. at p. 917.) Plaintiffs contended, and the Court of Appeal agreed, that to prove breach of warranty, they needed to prove only that Fibermesh was “an inherently defective product the use of which is substantially certain to lead to foundation failure,” and that it was not necessary for each homeowner to prove his foundation had already cracked or split. (Id. at pp. 917, 923.) The court noted that the plaintiffs had submitted a declaration from an expert who testified he had inspected the performance of both wire mesh and Fibermesh in holding concrete together after it cracked; that without exception the wire mesh held cracks closely together; that Fibermesh allowed the cracks to separate; and that even if a slab had not yet cracked, environmental factors would likely later cause a separation. (Id. at p. 917.)
The issue in Hicks, then, was not whether the expert had established a foundation for his opinion adequate to render it substantial evidence of common issues; rather, it was whether the trial court could properly require, in addition, proof of “ ‘common manifest damage’ ” in ruling on class certification. (Hicks, supra, 89 Cal.App.4th at p. 916.) Because the trial court in Hicks did not conclude the expert’s opinion lacked foundation, the Court of Appeal had no occasion to examine such a conclusion. (See Quacchia, supra, 122 Cal.App.4th at p. 1447 [Court of Appeal considers only reasons given by trial court for denial of class certification].) Unlike that court, we have occasion to do so, and we conclude the trial court could reasonably find the opinions of plaintiffs’ experts lacked foundation.
Plaintiffs contend, however, that the trial court here used improper criteria and erroneous legal assumptions in ruling on its motion. They point to the portion of the order denying class certification at which the trial court stated: “As to the breach of warranty causes of action, and arguably as to the statutory cause of action [CLRA], individualized proof of malfunction is not necessary, as long as there were claims of an inherent defect which was substantially certain to result in malfunction during the useful life of the product. [Citation.] The suitability of a class action therefore depends upon presentation of sufficient evidence to suggest the product is substantially certain to malfunction within its useful life.” While this language is ambiguous, it is clear that in later reaching its conclusion, the trial court relied not on its assessment of the merits of the case, but on the lack of a sufficient showing of common issues, stating that without “basic foundational information” about the outcome of testing and the likelihood of failure, the court “cannot determine that common questions predominate” as to plaintiffs’ claims. Reading the court’s conclusion in context, we see no use of improper criteria or erroneous legal assumptions.
Plaintiffs point out that Civil Code section 931, a part of the statutory scheme establishing requirements for construction defect actions, provides that as to “class action claims that address solely the incorporation of a defective component into a residence,” the class members need not comply with certain procedures required in construction defect actions. Although class actions may be an appropriate method of resolving such disputes, the statute does not deprive the trial court of its discretion to decide in any given case whether common issues predominate, whether the class representatives are appropriate, and whether a class action is superior to other methods of resolving the conflict.
C. Superiority of Class Action
In any case, whether or not the trial court properly concluded common issues would not predominate, its denial of class certification had a second basis: that a class action was not the superior method to resolve this dispute. Courts generally consider four factors in deciding whether a class action would be superior to individual lawsuits: “ ‘[(1)] The interest of each member in controlling his or her own case personally; [¶] [(2)] The difficulties, if any, that are likely to be encountered in managing a class action; [¶] [(3)] The nature and extent of any litigation by individual class members already in progress involving the same controversy; [and] [¶] [(4)] The desirability of consolidating all claims in a single action before a single court.’ ” (Basurco v. 21st Century Ins. Co. (2003) 108 Cal.App.4th 110, 121.)
In concluding a class action would not be superior here, the trial court stated: “An individual homeowner is unlikely to file suit against a windows manufacturer for the limited damage likely to result from manufacturing or design defects in windows. Even if such a lawsuit is filed, the amount of damages at stake may not justify an individual homeowner’s retention of the experts necessary to prove a manufacturing or design defect. [¶] This weighs in favor of treatment as a class action. [¶] Nevertheless, the court takes judicial notice that window claims are often included in construction defect cases. Lawsuits by hundreds of homeowners within a development for construction defects are not uncommon. In addition, homeowner associations have standing to bring these claims on behalf of the numerous homeowners within the development, making it less likely that such claims need be brought by individual homeowners without the resources necessary to prove this or other types of construction defects. Becker v. McMillin Construction Co. (1991) 226 Cal.App.3d 1493. To the extent individual homeowners might have purchased MILGARD windows after completed construction of their home, and could not achieve economies of scale through lawsuits with other homeowners or homeowners’ association, they are not typical of the claims of these named Plaintiffs, who purchased homes in which MILGARD products had already been installed by their developer. [¶] Finally, the court has concerns that allowing piecemeal resolution through class actions of isolated manufacturing component issues will add further complications to already-complicated multiple defect type construction defect cases. [¶] When all of these factors are considered, this court determines that proceeding in this case through certification of a class is not appropriate, and therefore denies this motion.”
We see no abuse of discretion in this ruling. The trial court recognized the benefits of a class action—particularly the benefits of pooling relatively small claims—but it could reasonably conclude that the benefits were offset by the ability of homeowners to achieve economies of scale through other means. The court could also reasonably conclude a class action was less beneficial to both litigants and the courts where homeowners could bring construction defect cases alleging multiple defects to their homes. Indeed, the record before the court revealed that plaintiffs had brought two other actions against the developer of their subdivision—one a construction defect case and one a class action—alleging defects in their homes, and it appears that Milgard had been a cross-defendant in the construction defect case.
In connection with their reply brief in the trial court, plaintiffs requested judicial notice of documents relevant to the other two actions (the Aikens actions). One of those documents, a brief Milgard had filed in one of the Aikens actions in opposition to a motion plaintiffs had apparently brought to coordinate the Camenson action and the two Aikens actions, indicated the following: One of the Aikens actions (Aikens v. Forecast Homes, L.P. (Super. Ct. Solano County, 2006, No. FCS020743)) was a construction defect case brought by approximately 197 plaintiffs who claimed to own 106 homes in the Pleasant Run subdivision. The named defendant was Forecast Homes, the developer and general contractor, and in turn, Forecast had filed a cross-complaint against 53 other parties who acted as subcontractors or materialmen, including Milgard. In that action, plaintiffs sought to recover the costs of removing the exterior building materials, replacing the waterproof flashing around the windows, and repairing any property damage, but they did not allege that the Milgard windows were defective in design or manufacture and did not seek the cost of removing or replacing the windows. The second Aikens action (Aikens v. Forecast Homes, LP (Super. Ct. Solano County, 2006, No. FCS024978)) was a putative class action by owners of homes in the Pheasant Run subdivision on behalf of a nationwide class, alleging misrepresentation and unfair business practices by Forecast and its related entities in the development, construction, and marketing of residential subdivisions.
In reaching this conclusion, we do not imply that it would have been improper for the trial court to have certified the class. We conclude simply that in the circumstances before us—and on the record before the trial court—it was not an abuse of discretion to deny class certification.
Having concluded that the trial court did not abuse its discretion in denying certification on the basis that a class action did not meet the “superior[ity]” test, we need not reach plaintiffs’ argument that the trial court abused its discretion in failing to address separately the breach of express warranty claim when concluding common issues did not predominate. Nor, in light of our prior conclusions, do we believe the trial court abused its discretion in not certifying separate subclasses for those whose homes were constructed with Milgard windows and those whose homes contained Milgard replacement windows.
III. DISPOSITION
The judgment is affirmed.
We concur: RUVOLO, P.J., REARDON, J.
Plaintiffs also sought judicial notice of their requests in the two Aikens cases to dismiss without prejudice their allegations and claims “pertaining to the window products, per se, installed in these Plaintiffs’ homes.”
At the hearing on the motion for class certification, counsel for plaintiffs indicated that the Aikens litigation had been settled and there was no other pending action.