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Renee Tietsworth, Suzanne Rebro, Sondra Simpson, and v. Sears


March 28, 2013


The opinion of the court was delivered by: Jeremy Fogel United States District Judge

**E-Filed 3/28/2013**

United States District Court


Plaintiffs Suzanne Rebro, Sondra Simpson, and John Carey ("Plaintiffs")*fn2 have filed a 22 renewed motion for class certification pursuant to Fed. R. Civ. P. 23. Defendants Sears, Roebuck 23 and Co. ("Sears") and Whirlpool Corporation ("Whirlpool") (collectively, "Defendants") oppose the 24 motion. The Court concludes that the motion is appropriate for disposition without oral argument 25 pursuant to Civil Local Rule 7-1(b). For the reasons discussed below, the motion will be denied. 26

not be set forth in full here. In brief, Plaintiffs allege that certain top-loading Kenmore Elite Oasis 4 automatic washing machines ("Machines") were manufactured with a defective electronic control 5 board ("ECB"). According to Plaintiffs, the defective ECB results in three different types of 6 malfunction: (1) a "F1" error; (2) a "F51" error; and (3) a "sudden instability event" that can result 7 in an explosion when certain types of fabric are in the wash load. The operative third amended 8 complaint ("TAC") asserts claims against Whirlpool and Sears under California unfair competition 9 and consumer protection laws, California common law, and the federal Magnuson-Moss Warranty 10

On May 4, 2012, the Court denied Plaintiffs' motion for class certification with respect to all of these claims. Tietsworth v. Sears, Roebuck and Co., No. 5:09-cv-00288-JF (HRL), 2012 WL 13


The facts giving rise to this action are well-known to the parties and to the Court and need Act ("MMWA"), 15 U.S.C. § 2301 et seq. 1595112 (N.D. Cal. May 4, 2012) ("Prior Order"). Although it determined that the numerosity, 14 commonality, typicality, and adequacy requirements of Fed. R. Civ. P. 23(a) were satisfied, id. at 15 *15-17, the Court concluded that the proposed classes were overbroad and unmanageable as 16 defined, id. at *14; Plaintiffs' state law claims based upon concealment of the ECB defect were not 17 appropriate for certification absent evidence that the ECB defect caused an unreasonable safety 18 hazard, id. at *15; and individual questions predominated with respect to Plaintiffs' state law 19 warranty claims, id. at *17. As to the MMWA claim, the Court observed that: 20 clarification, the Court conceivably could certify a properly defined class with respect to the MMWA claim. However, because the proposed classes are overbroad and unmanageable as currently defined, the present motion for class certification will be denied in its entirety.

. . . Plaintiffs' counsel clarified at the hearing that the claim is based solely upon the federal statute and does not depend upon the laws of individual states. In light of that

Plaintiffs could define an appropriate class with respect to their MMWA claim, this determination is 26 without prejudice, but only to that extent." Id. at *18. Plaintiffs now renew their motion for class


Id. at *17. The Court ordered that, "Because there appears to be a reasonable possibility that certification with respect to their MMWA claim, which is asserted only against Sears.*fn3 2 as follows: 4

TAC ¶ 42, ECF No. 93; User's Guide at p. 3, ECF No. 127-23. Plaintiffs allege that this warranty is 8 a written warranty covered by the MMWA; Sears's systematic refusal to repair and/or replace the 9

The MMWA claim is based upon a one-year limited warranty issued by Sears, which reads


When installed, operated and maintained according to all instructions supplied with the product, if this appliance fails due to a defect in material or workmanship within one year from the date of purchase, call 1-800-4-MY-HOME to arrange for free repair.

ECB violates 15 U.S.C. § 2302(a)(6), requiring a written warranty to include "[e]xceptions and 10 exclusions from the terms of the warranty"; Sears's failure to include in the warranty a brief, general

description of the legal remedies available to consumers violates 15 U.S.C. § 2302(a)(9); and Sears's failure to repair or replace the ECBs that failed within the first year of purchase constitutes a 13 breach of warranty that subjects Sears to liability for damages, equitable relief, attorneys' fees, and 14 costs pursuant to 15 U.S.C. § 2310(d). TAC ¶¶ 148, 150, 151, 165, 169, ECF No. 93. 15

Although these allegations assert both form-and-content claims (based upon alleged 16 violations of MMWA provisions prescribing the form and content of written warranties) and breach-17 of-warranty claims (based upon alleged failure to comply with written warranties), Plaintiffs' 18 proposed class definition is directed only to the breach-of-warranty claims, that is, claims that 19


Plaintiffs reported F1 and/or F51 error codes to Sears within the one-year warranty period but were 20 denied repair of the problem and had to pay out-of-pocket or suffer continued F1 and F51 error 21 codes. Plaintiffs seek certification of a nationwide class, defined as follows: 2

December 1, 2005*fn4 included within the models below; (2) experienced an F1and/or F51 error code and contacted Sears*fn5 within the warranty period; and (3) either (a) paid for a replacement electronic control board, and/or (b) are still experiencing F1 or F51 error codes.

110.27032600, 110.27032601, 110.27032602, 110.27032603, 110.27042600,

110.27042601, 110.27042602, 110.27042603, 110.27052600, 110.27052601, 110.27052602, 110.27062600, 110.27062601, 110.27062602, 110.27062603,

110.27072600, 110.27072601, 110.27072602, 110.27072603, 110.27082601, 110.27082602, 110.27082603, 110.27082604, 110.27082605, 110.27086601,

110.27086602, 110.27086603, 110.27086604, 110.27086605, 110.27087601, 110.27087602, 110.27087603, 110.27087604, 110.27087605, 110.27092600,

110.27092601, 110.27092602, 110.27092603, 110.27092604, 110.27152600, 110.27152601, 110.27152602, 110.28032700, 110.28032701, 110.28042700, or 110.28042701.

The Nationwide Class: All United States residents and entities who (1) purchased or owned a top-loading Kenmore Elite Oasis automatic washing machine after behalf of the individual named parties only." Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2550 14 (2011) (internal quotation marks and citation omitted). "In order to justify a departure from that 15 rule, a class representative must be part of the class and possess the same interest and suffer the 16 same injury as the class members." Id. (internal quotation marks and citation omitted). "Before 17 certifying a class, the trial court must conduct a 'rigorous analysis' to determine whether the party 18 seeking certification has met the prerequisites of Rule 23." Mazza v. American Honda Motor Co., 19 1180, 1186, as amended by 273 F.3d 1266 (9th Cir. 2001)).

(1) the class is so numerous that joinder of all members is impracticable;


"The class action is an exception to the usual rule that litigation is conducted by and on Inc., 666 F.3d 581, 588 (9th Cir. 2012) (quoting Zinser v. Accufix Research Inst., Inc., 253 F.3d 20 Under Rule 23(a), four prerequisites must be satisfied for class certification:

Fed. R. Civ. P. 23(a). 6

(1) there is a risk of substantial prejudice from separate actions; (2) declaratory or injunctive relief 8 benefiting the class as a whole would be appropriate; or (3) common questions of law or fact 9 predominate and the class action is superior to other available methods of adjudication. See Fed. R. 10

"Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule -- that is, he must be prepared to prove 13 that there are in fact sufficiently numerous parties, common questions of law or fact, etc." Dukes, 14 131 S.Ct. at 2551. Analysis of these factors "generally involves considerations that are enmeshed in 15 the factual and legal issues comprising the plaintiff's cause of action." Id. at 2552 (internal 16 quotation marks and citation omitted). "Nor is there anything unusual about that consequence: The 17 necessity of touching aspects of the merits in order to resolve preliminary matters, e.g., jurisdiction 18 and venue, is a familiar feature of litigation." Id. 19

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the interests of the class.

A plaintiff also must satisfy one or more of the separate prerequisites set forth in Rule 23(b):

Civ. P. 23(b).


A. Identifiable and Ascertainable Class 21

"As a threshold matter, and apart from the explicit requirements of Rule 23(a), the party 22 seeking class certification must demonstrate that an identifiable and ascertainable class exists." 23 Mazur v. eBay, Inc., 257 F.R.D. 563, 567 (N.D. Cal. 2009). "However, the class need not be 'so 24 ascertainable that every potential member can be identified at the commencement of the action.'" 25

Miller & Kane, § 1760 at 117). "As long as 'the general outlines of the membership of the class are 27 determinable at the outset of the litigation, a class will be deemed to exist.'" Id. (quoting Wright, 28

O'Connor v. Boeing North American, Inc., 184 F.R.D. 311, 319 (C.D. Cal. 1998) (quoting Wright, 26 Miller & Kane, § 1760 at 118). "Thus, a class will be found to exist if the description of the class is definite enough so that it is administratively feasible for the court to ascertain whether an individual 2 is a member." Id. 3 4 who (1) purchased or owned one of the subject Machines (defined by model number) after 5 On its face, the proposed class definition appears to be fairly precise -- it includes parties December 1, 2005; (2) experienced an F1 and/or an F51 error code and contacted Sears within the 6 one-year warranty period; and (3) paid for a replacement ECB and/or still experience F1 and/or F51 7 error codes. However, Defendants point to evidence that the Machines are designed to, and do, 8 display diagnostic "F" error codes for any number of reasons unrelated to a defective ECB. See, 9 e.g., Farrington Decl. ¶¶ 17, 32, ECF No. 139-1. It is not clear that anyone can ascertain which 10 individuals experienced "false" or "nuisance" error codes caused by a defective ECB and which individuals experienced "real" error codes that were displayed in the manner intended. For example, Plaintiffs' expert, Dr. Raymond Pietila ("Pietila"), admitted during his deposition that 13 although he attended the inspection and testing of Plaintiff Rebro's washer, he could not determine 14 what had caused Rebro's F1 error codes. Pietila Dep. at 161:4-9, 163:2-5, ECF No. 139-17. 15

Moreover, as the Court noted it its Prior Order, the model numbers recited in the class 16 definition were used both for Machines containing the allegedly defective ECB and for Machines 17 containing new ECBs that corrected the earlier software defect. Prior Order, 2012 WL 1595112, at 18 *13. The Court rejected Plaintiffs' argument that identifying information such as part number, 19 software version, and pressure sensor manufacturer could be used to check each Machine during a 20 claim procedure, noting that such an approach would be "unwieldy" given the number of Machines 21 at issue. Id. The Court concluded that "[i]f the allegedly defective ECB was not included in some 22

Machines that carry the model numbers identified in the class definition, then the classes necessarily 23 contain members who lack Article III standing." Id. at *14. "[N]o class may be certified that 24 contains members lacking Article III standing." Mazza, 666 F.3d at 594 (internal quotation marks 25 and citation omitted). 26

27 concerns raised by the Court it its Prior Order, it still appears that "ascertaining class membership 28 would require unmanageable individualized inquiry." Xavier v. Philip Morris USA Inc., 787 F.

Although Plaintiffs have attempted to limit their proposed class definition to address the Supp. 2d 1075, 1089 (N.D. Cal. 2011). 2

In its Prior Order, the Court concluded that the numerosity, commonality, typicality, and 4 adequacy requirements of Rule 23(a) were satisfied. However, after revisiting these requirements 5 against the backdrop of Plaintiffs' new and more limited class definition, the Court has reconsidered 6 this conclusion. 7

In connection with their initial motion for class certification, Plaintiffs presented evidence 9 that the nationwide class consisted of more than 200,000 consumers who purchased or own a 10 defective Machine. Plaintiffs' renewed motion articulates a much more limited class definition that is restricted to persons who purchased or own a defective machine and experienced an F1and/or F51 error code and contacted Sears within the warranty period and paid for a replacement electronic 13 control board and/or are still experiencing F1 or F51 error codes. Plaintiffs do not present any 14 evidence as to how many members meet this revised class definition, but rather argue that it is 15 "common sense" that the number must be so great that joinder of all members is impracticable. See 16 4906433, at *6 (C.D. Cal. Nov. 13, 2008) ("Where the exact size of the class is unknown, but 18 general knowledge and common sense indicate that it is large, the numerosity requirement is 19 satisfied.") (internal quotation marks and citation omitted). The Court concludes that it lacks 20 sufficient data to make a common sense assumption that the numerosity requirement is met. 21

Class members' claims must depend upon a common contention that is "of such a nature that 23 it is capable of classwide resolution -- which means that determination of its truth or falsity will 24 resolve an issue that is central to the validity of each one of the claims in one stroke." Dukes, 131 25 S.Ct. at 2551. "What matters to class certification . . . is not the raising of common questions -- even 26 in droves -- but, rather the capacity of a classwide proceeding to generate common answers apt to 27 drive the resolution of the litigation. Dissimilarities within the proposed class are what have the 28 potential to impede the generation of common answers." Id. (internal quotation marks and citation

B. Rule 23(a)

1. Numerosity

Rivera v. Bio Engineered Suppl. & Nutr., Inc., No. SACV 07-1306 JVS (RNBx), 2008 WL 17

2. Commonality

omitted). 2

Machines in question were manufactured with a defective ECB and that such claims "are susceptible 4 to common resolution -- either the Machines in question contained a common defect in the ECB or 5 they did not, and either the defect rendered the machines substantially certain to fail or it did not." 6

In its Prior Order, Court concluded that Plaintiffs' claims turn upon the theory that all of the

Prior Order, 2012 WL 1595112, at *16. However, as framed by the renewed motion for class 7 certification, the inquiry has shifted beyond whether the Machines were manufactured with a 8 defective ECB. In order to prevail on their MMWA claim, Plaintiffs additionally must show that 9 each class member received "false" F1 and/or F51 error codes caused by the defective ECB, 10 reported that error code to Sears, and suffered damages when Sears failed to replace the defective

ECB or otherwise cure the problem. The Court concludes that these individualized inquiries will vary from class member to class member and thus are not "common" for purposes of Rule 23(a)(2). 13

The Court must determine whether "the claims or defenses of the representative parties are 15 typical of the claims or defenses of the class." Fed. R. Civ. P. 23(a)(3). "[R]epresentative claims 16 are 'typical' if they are reasonably co-extensive with those of absent class members; they need not 17 be substantially identical." Hanlon Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). "[T]he 18 commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for 19 determining whether under the particular circumstances maintenance of a class action is economical 20 and whether the named plaintiff's claim and the class claims are so interrelated that the interests of 21 the class members will be fairly and adequately protected in their absence." Dukes, 131 S.Ct. at 22 2551 n.5. A proposed class representative is not typical if his or her claims are subject to time-23 consuming specific defenses that would not apply to absent class members. See State of Alaska v. 24

Suburban Propane Gas Corp., 123 F.3d 1317, 1321 (9th Cir. 1997) ("A named plaintiff's motion 25 for certification should not be granted if there is a danger that absent class members will suffer if 26 their representative is preoccupied with defenses unique to it.") (quoting Hanon v. Dataproducts 27

Again, to prevail on their MMWA claim, Plaintiffs must show that they experienced "false"

3. Typicality

Corp., 976 F.2d 497, 508 (9th Cir. 1992)). 28

error codes, that they reported such error codes to Sears, and that Sears failed to repair the defective 2

ECBs that caused the false error codes. Each class representative appears to be making just such a 3 claim. Accordingly, the Court concludes that in this particular case the typicality requirement is 4 satisfied notwithstanding the fact that the commonality requirement is not. 5

Plaintiffs must demonstrate that "the representative parties will fairly and adequately protect

7 the interests of the class." Fed. R. Civ. P. 23(a)(4). When considering the adequacy of a class 8 representative, courts generally consider only two questions: "(1) [d]o the representative plaintiffs 9 and their counsel have any conflicts of interest with other class members, and (2) will the 10 representative plaintiffs and their counsel prosecute the action vigorously on behalf of the class?"

interest, and Plaintiffs have been zealous in prosecuting the action. 13

In addition to demonstrating that this case meets the four requirements of Rule 23(a),

Plaintiffs must demonstrate that it meets one of the requirements of Rule 23(b). They assert that the 16 requirements of Rule 23(b)(3) are met because common questions of law or fact predominate and 17 the class action is superior to other available methods of adjudication. When considering 18 application of Rule 23(b)(3), the Court must go beyond asking whether any common questions exist 19 and ask whether these common questions "predominate over any questions affecting only individual 20 members" of the putative class. See Fed. R. Civ. P. 23(b)(3). This analysis focuses on "the 21 relationship between the common and individual issues. When common questions present a 22 significant aspect of the case and they can be resolved for all members of the class in a single 23 adjudication, there is clear justification for handling the dispute on a representative rather than on an 24 individual basis." Hanlon, 150 F.3d at 1022 (internal quotation marks and citation omitted). The 25

Rule 23(b)(3) inquiry "tests whether proposed classes are sufficiently cohesive to warrant 26 adjudication by representation." Id. (citation omitted). If common questions do predominate, the 27 plaintiff must demonstrate that the class action is superior to other available methods of 28 adjudication. See Fed. R. Civ. P. 23(b).

4. Adequacy

Staton v. Boeing Co., 327 F.3d 938, 957 (9th Cir. 2003). There is no evidence of any conflict of

C. Rule 23(b)

As is discussed above, it appears that individualized questions predominate with respect to

2 whether each putative class member experienced a "false" error code caused by a defective ECB, 3 whether that class member notified Sears of the error code, and whether Sears breached the limited 4 one-year warranty by failing to address the problem. These individualized questions are not subject 5 to common proof. See Dukes, 131 S.Ct. at 2551 ("What matters to class certification . . . is not the 6 raising of common 'questions' -- even in droves -- but, rather the capacity of a classwide proceeding 7 to generate common answers apt to drive the resolution of the litigation.").*fn6


Good cause therefor appearing:

Plaintiffs' renewed motion for class certification is DENIED.

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