The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
This matter comes before the court on plaintiffs Lynda and Lloyd Cartwright's (collectively "plaintiffs") motion for class certification pursuant to Federal Rule of Civil Procedure 23. Defendant Viking Industries, Inc.'s ("Viking") opposes the motion. The court heard oral argument on the motion on September 4, 2009. For the reasons set forth below, plaintiffs' motion for class certification is GRANTED in part and DENIED in part.
Plaintiffs are the owners of a residence in which defendant Viking's Series 3000 window products (the "windows" or "window products") are installed. (Plaintiffs' Complaint, filed Aug. 16, 2007 ("Compl."), ¶ 6). Specifically, plaintiffs purchased the windows from a distributor in March of 1991 while in the process of constructing their home. (Id. ¶ 27.) Plaintiffs brought this class action on behalf of themselves and persons in California who own or owned homes in which Viking Window Products have been installed. (Id. ¶ 1). Plaintiffs' claims are based on the defective nature of the Window Products and the damages caused by the defective Window Products. (Id. ¶ 13). The alleged defects in the windows include the failure to resist water and air intrusion, which created water damage in the home. (Id. ¶¶ 13, 19).
Plaintiffs further allege Viking made fraudulent omissions and misrepresentations concerning the Window Products. (Id. ¶ 15). Plaintiffs assert that defendant knew that the windows were defective, would fail prematurely, and were unsuitable for their advertised use, but concealed these material facts from consumers like plaintiffs. (Compl. ¶¶ 16-17.) Plaintiffs also assert Viking represented that the Window Products came with a "Lifetime Warranty," would be "free from defects in material and workmanship," and would perform in conformance with standards promulgated by the American Architectural Manufacturers Association ("AAMA"). (Id.) Plaintiffs claim these representations were false because the Window Products were defective, failed prematurely, and would not satisfy AAMA standards. (Id. ¶ 18).
By June of 1997, plaintiffs became aware of excess moisture near some windows and sills and contacted Viking concerning the moisture problems with the Window Products. (Id. ¶ 30). A Viking representative visited plaintiffs' residence in June 1997 and advised plaintiffs that the excess moisture was caused by problems with the heating and air conditioning unit. (Id.) Plaintiffs believed the Viking representative and allege they had no reason to suspect the Window Products were defective until they were advised of the pendency of the class action lawsuit, Deist, et al. v. Viking Industries, Case No. CV025771 (the "Deist action"), filed in the San Joaquin County Superior Court. (Id. ¶ 31). Plaintiffs claim the filing of the Diest action on February 17, 2005 tolled the running of the statute of limitations for claims related to the Window Products. (Id. ¶ 32).
On August 16, 2007, plaintiffs filed this civil class action against defendant, alleging eight causes of action: Strict Products Liability, Negligence, Breach of Express Warranty, Breach of Implied Warranty, Violation of the Consumer Legal Remedies Act ("CLRA"), Violation of California's Unfair Competition Law ("UCL"), Fraudulent Concealment, and Restitution. (Id. ¶¶ 40-102; Notice of Removal, filed Sept. 21, 2007). Defendant removed the case to this court on September 21, 2007, and filed a motion to dismiss, which was denied on February 12, 2008.
Meanwhile, the Deist action continued to be litigated in state court. The parties in the Deist action have completed 22 depositions, 20 sets of interrogatories, 21 sets of requests for production of documents, 18 subpoenas for records pertaining to the Deist plaintiffs' homes, inspections of all the Deist plaintiffs' homes by Viking's experts, productions of thousands of pages of documents in response to subpoenas, and further investigation, surveys, testing, and statistical surveys. (Decl. of Mark J. Thacker ("Thacker Decl."), filed June 25, 2009, ¶ 3.) On July 14, 2008, the San Joaquin Superior Court issued an order on defendant's motion for summary adjudication, granting in part and denying in part. Some of the Deist plaintiffs' claims for strict liability, breach of warranties, and negligence were barred based upon the expiration of the statute of limitation or lack of privity. On April 9, 2009, the San Joaquin Superior Court certified the following two subclasses for Express and Implied Warranty causes of action:
1) The Retail Purchaser Sub-Class. All California property owners that purchased the Viking Series 3100 horizontal sliding, 3300 single hung or 3600 fixed windows that were manufactured between January 1989 and December 31, 1999, which were installed in their California homes and buildings who have not already released their claims about these windows or who are not presently a Plaintiff in a lawsuit, other than Deist v. Viking, that alleges the Window Products are defective. This subclass down not include owners of California buildings who acquired their Viking Series 3000 windows by purchasing a building.
2) The Original Home Purchaser Subclass. All California property owners whose buildings have one or more of the Viking's aluminum window Series 3000 et seq. windows in them who are 1st occupant resident owners of buildings located in California that had Viking Series 3100 horizontal sliding, 3300 single hung or 3600 fixed windows installed in them when they purchased their home and which windows were manufactured between January 1989 and December 31, 1999, who have not already released their claims about these windows or who are not presently a Plaintiff in a lawsuit, other than Deist v. Viking, that alleges the Window Products are defective.
(Ex. A to Pls.' Request for Judicial Notice, filed May 22, 2009.) By order dated May 18, 2009, the San Joaquin Superior Court ordered that parties in the Deist action inform potential class members about the pendency of this action and plaintiffs' motion for class certification; the court directed notification that "[i]f the Cartwright claim is certified as a class action, you will have the option to opt-out of the Deist case and participate in the Cartwright case." (Ex. B to Request for Judicial Notice.)
On May 22, 2009, plaintiffs filed a motion to certify the following classes:
All current and past owners of residential property in California in which Viking Series 3000 windows manufactured by Viking Industries Inc. between approximately March 1, 1991 and 1999 (the "Class Period") are or have been installed. The proposed class includes property owners who have replaced their Viking windows. Excluded from the Plaintiff Class are the Defendant, any entity in which Defendant has a controlling interest, and their legal representatives, heirs and successors, and any judge to whom this case is assigned, and any member of the judge's immediate family. Claims for personal injury are excluded from the claims of the Plaintiff Class which are alleged herein.
All original owners of residential property in California who are the first occupant resident owner in which Viking Series 3000 windows manufactured by Viking Industries Inc. between approximately March 1, 1991 and 1999 (the "Class Period") are or have been installed.
The proposed class includes property owners who have replaced their Viking windows. Excluded from the class are named Plaintiffs in pending lawsuits against Viking Industries, Inc. relating to Series 3000 windows other than in Cartwright v. Viking; also excluded is the Defendant, any entity in which the Defendant has a controlling interest, and their legal representatives, heirs and successors, and any judge to whom this case is assigned, and any member of the judge's immediate family. Claims for personal injury are excluded from the claims of the Plaintiff Class which are alleged herein.
At oral argument, plaintiffs clarified that they sought certification of the warranty subclass only as to plaintiffs' express warranty claims. However, plaintiffs also asserted that, to the extent the court disagreed with their arguments regarding privity, the warranty subclass could be applied to the claims for both breach of express warranty and breach of implied warranties.
District courts have broad discretion in ruling on motions for class certification because "the district court is in the best position to consider the most fair and efficient procedure for conducting any given litigation." Doninger v. Pacific Northwest Bell, Inc., 564 F.2d 1304, 1309 (9th Cir. 1977). However, before certifying a class, the court must "conduct a 'rigorous analysis' to determine whether the party seeking certification has met the prerequisites of Rule 23" of the Federal Rules of Civil Procedure. Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001) (citing Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1233 (9th Cir. 1996)). "The 'rigorous analysis requirement' means that a class is not maintainable merely because the complaint parrots the legal requirements of Rule 23." Communities for Equity, 192 F.R.D. 568, 570 (citing In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996)).
Under Rule 23(a), there are four threshold requirements applicable to all class actions: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of fact common to the class; (3) the claims and defenses of the representative party are typical of the claims and defenses of the class; and (4) the representative party will fairly and adequately represent the interests of the class. Fed. R. Civ. P. 23(a).
An action may be maintained as a class action where the above prerequisites are met and one of the conditions enumerated in Rule 23(b) is satisfied. As set forth below, plaintiffs move for certification under Rule 23(b)(2). Certification under Rule 23(b)(2) is proper where "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." Fed. R. Civ. P. 23(b)(2).
The burden is on the party seeking to maintain the action as a class action to establish a prima facie showing of each of the 23(a) prerequisites and the appropriate 23(b) ground for a class action. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019, 1022 (9th Cir. 1998); Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985). "[I]n adjudicating a motion for class certification, the court accepts the allegations in the complaint as true so long as those allegations are sufficiently specific to perform an informed assessment as to whether the requirements of Rule 23 have been satisfied." Ellis, 240 F.R.D. at 635 (citing Blackie v. Barrack, 524 F.2d 891, 901 n.17 (9th Cir. 1975). Generally, the merits of the class members' substantive claims is irrelevant, unless they overlap with certification issues. Id. (citing Eisen, 417 U.S. at 177-78). The operative determination is whether class claims "may be proven by evidence common to all class members," not whether the evidence will ultimately be persuasive. In re Live Concert Antitrust Litigation, 247 F.R.D. 98, 144 (C.D. Cal. 2007).
The initial inquiry under Rule 23(a) is whether the class is sufficiently numerous that joinder of all members individually is "impracticable." Fed. R. Civ. P. 23(a)(1); see Communities for Equity, 192 F.R.D. at 571 ("Numbers alone are not dispositive when the numbers are small, but will dictate impracticability when the numbers are large."). "The requirement does not demand that joinder would be impossible, but rather that joinder would be extremely difficult or inconvenient." 5 Moore's Federal Practice § 23.22 (3d Ed. 2003).
The numerosity requirement imposes no absolute numerical limitation, but, rather, requires that the specific facts of each case be examined. General Tel. Co. v. E.E.O.C., 446 U.S. 318, 330 (1980). "Practicability of joinder depends on many factors, including, for example, the size of the class, ease of identifying its numbers and determining their addresses, facility of making service on them if joined and their geographic dispersion." Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 878 (11th Cir. 1986) (upholding class certification where plaintiff identified thirty one individual class members and the class included future and deterred job applicants who were necessarily unidentifiable). Where the class is comprised of more than forty individuals, numerosity is generally satisfied. Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986); see also Leyva v. Buley, 125 F.R.D. 512, 515 (E.D. Wash. 1989) (holding that class consisting of 50 individuals met numerosity requirement). If class members are unknown or unidentifiable, then joinder of all class members is likely impracticable. See Jordan v. Los Angeles County, 669 F.2d 1311, 1319-20 (9th Cir. 1982), vacated on other grounds, 459 U.S. 810 (1982) (holding that the numerosity requirement was met because "[t]he joinder of unknown individuals is inherently impracticable"); see also 5 Moore's Federal Practice § 23.22 (3d Ed. Supp. 2008) ("It is well established . . . that the party seeking class certification need not be able to prove the exact number of members of the proposed class or to identify each class member.").
In support of their motion for class certification, plaintiffs present evidence that Viking sold approximately one million windows during the proposed class period. Given expert testimony that an average residence has approximately 20 windows, it is likely that Viking windows were installed ...