United States District Court, E.D. California
JAMES WILSON, an individual, and JACK WHITE, an individual, on behalf of themselves and all others similarly situated, Plaintiffs,
METALS USA, INC., a Delaware Corporation, and DOES 1-100, inclusive, Defendant.
Wilson and Jack White purchased roof tiles manufactured by
Dura-Loc Roofing Systems Limited. They allege those tiles
were defectively designed because over time, as the tiles
were exposed to air and sunlight, they lost their color.
Because Dura-Loc gave them a written warranty promising the
tiles were “UV resistant, ” Wilson and White
allege violations of California Commercial Code section 2313.
They bring this action against Metals USA, Inc., the alleged
successor to Dura-Loc’s liability.
and White propose to represent a class of property owners who
purchased similarly defective tiles. They move for class
certification, and Metals USA opposes the motion. The court
held a hearing on December 4, 2015. Gene Stonebarger and
Richard Lambert appeared for the plaintiffs, and Frank Busch,
Bart Dalton, and Adrian Sawyer appeared for the defendant.
For the reasons described below, the motion is granted.
details about Dura-Loc and its roofing tiles help set the
stage. Dura-Loc began in Ontario, Canada in 1984. Reid Decl.
¶ 15, ECF No. 81-3. Between 1985 and 2006, it
manufactured part-metal, part-stone, layered roofing tiles.
Id.; see also Stonebarger Decl. Ex. D, at
MUSA 003923, ECF No. 81-3. The base or substrate layer is
pressure-formed by galvanized steel. Stonebarger Decl. Ex. D,
at MUSA 003923. The tiles’ top sides, which were the
sides eventually exposed to the elements, were coated with
crushed stone chips, granules of “Colorquartz
Aggregate” manufactured by 3M. See Dalton
Decl. Exs. B, D, ECF No. 82-2. Overall, each tile is a little
more than four feet wide and about fifteen inches deep.
See Stonebarger Decl. Ex. D, at MUSA 003923. When
installed on a roof, each tile overlaps with adjacent tiles
to protect the structure below. Id.
case concerns three specific types of tiles, the
“Continental, ” “Shadowline, ” and
“Wood Shake” product lines. All three have the
same structure and composition. See, e.g.,
Stonebarger Decl. Exs C, E, G, H, S, T, X, ECF Nos. 81-3,
81-4; see also Harlan Rep. 3, ECF No. 81-29. The
tiles were also manufactured using the same process: After a
protective coating was applied to the tiles’ backsides,
a layer of acrylic basecoat was applied at a thickness of
between 14 and 18 thousandths of an inch. See Dalton
Decl. Ex. F, at 7. A layer of colored granules was then
dropped onto the basecoat, and the tiles were baked in an
oven until dried. Id. at 7-8. Finally, a topcoat
layer was applied, and the tiles were baked again until dry.
Id. at 8.
tiles in each product line were available with several
different colors of stone granules: “Continental”
in four colors; “Shadowline” in two colors, and
“Shake” or “Wood Shake” in four
colors. See Dalton Decl. Ex. E, at 8, ECF No. 82-2;
id. Ex. F, at 8. The granules do not block
ultraviolet light completely. Their transparency to
ultraviolet light varies by color; between 22 percent and 93
percent of the ultraviolet light that strikes the granules
passes through them. Third Am. Compl. Ex. I, at PLS0000025,
ECF No. 78-9.
USA entered the picture in 2006, when it purchased
Dura-Loc’s operating assets, including its
manufacturing facility in Ontario, Canada. See Reid
Decl. ¶¶ 14-15. According to the purchase
agreement, Dura-Loc and two of its principal shareholders
agreed to indemnify Metals USA for any damages incurred as a
result of Dura-Loc’s warranty obligations, among many
other provisions not relevant to this motion. See
Stonebarger Decl. Ex. AA, ¶ 6.1, ECF No. 81-5. After the
purchase, Metals USA changed the stone and basecoat Dura-Loc
had been applying to the Dura-Loc tiles to match those used
by a Metals USA affiliate. Obj. & Resp. Interrog. 5, ECF
No. 81-6. Dura-Loc then ended operations and changed its name
to “604471 Ontario, Inc.” Id. ¶ 14.
Later, in 2012, it filed for bankruptcy. Id.
James Wilson bought Dura-Loc’s “Wood
Shake”-style metal roofing tiles in 2004, before Metals
USA purchased Dura-Loc’s assets, to install on his home
in Roseville, California. Wilson Decl. ¶ 2, ECF No.
81-10. Wilson chose Dura-Loc’s tiles because they came
with a written warranty guaranteeing, as he understood it,
that the tiles were resistant to ultraviolet light and would
not deteriorate for at least twenty-five years after
installation. Id. In about June 2011, however,
Wilson noticed the tiles installed on his roof had begun to
deteriorate: they had lost some of their stone coating and
granular texture. Id. ¶ 4. He contacted a
division of Metals USA, whose customer service department
responded with a letter explaining Metals USA did not
manufacture or sell Dura-Loc tiles and that any warranty
claims were the responsibility of 604471 Ontario.
Id.; see also Id. Ex. C, ECF No. 81-13.
Wilson contacted 604471 Ontario, who required the refundable
$400 “service fee” before it would begin
investigating his claim. See Id. ¶ 4; see
also Id. Ex. D, ECF No. 81-14. It does not appear Wilson
paid the $400 fee. See Wilson Dep. 42-44, ECF No.
82-2. His Dura-Loc tiles continue to deteriorate, and have
now lost most of their original color and texture.
Id. ¶ 5.
of Wilson’s warranty is on file. See Wilson
Decl. Ex. A, ECF No. 81-11. Its specific terms are relevant
and worth reviewing in some detail:
● The warranty applies to all three product lines,
“Continental, ” “Shadowline, ” and
“Wood Shake, ” both panels and trim.
● Dura-Loc guaranteed that “for a period of 25
years following proper installation, the surface coating of
the Dura-Loc product shall be UV resistant* and will not
deteriorate as a result of a manufacturing defect to the
extent that the appearance of the roof is substantially
affected.” The asterisk after the words “UV
resistant” refers to a note that “[a]t the date
of installation, the coating will meet or exceed industry
standards when tested to ASTM 4214-89 standards given the
service life of the roof”
● If the purchaser files a claim, “taking all
circumstances into account, Dura-Loc will, at is sole option,
either repair or replace the affected Product or apply its
then current colour coordinated acrylic thereto.”
● Dura-Loc’s total liability is limited to the
actual purchase price paid by the original purchaser for the
first fifteen years after installation and “thereafter
a declining balance of such amount reduced on a pro rata
basis of the remaining 10 year period.”
● The warranty covers only purchasers who register
their purchase by mail within ninety days of installation. If
the warranty is not properly registered, it lasts only two
● If the tiles are installed and the property is sold,
the warranty applies to the subsequent purchaser only if he
or she gives written notice of the sale within ninety days
and pays a registration fee of $25.
● The purchaser must give written notice of any claim
under the warranty within thirty days of discovering a
● To make a claim, the purchaser must send a copy of
the limited warranty, proof of the date of purchase and
installation, and a refundable service fee of $400,
“the estimated cost of investigating each
complaint.” “Failure to comply with [this]
notification requirement will invalidate the Limited
● “Any objection, complaint, suit, legal
proceeding or action” arising from the warranty must be
brought within one year of the date Dura-Loc takes corrective
measures or communicates its denial of a claim, and
“claimant hereby waives all statutory and common law
periods of limitation in excess of [the one-year
White, the second plaintiff named in the caption, tells a
story similar to Wilson’s. White bought
Dura-Loc’s “Wood Shake” tiles in June 2004
and installed them on his home in Orangevale, California.
White Decl. ¶ 2, ECF No. 81-16. He also relied on
Dura-Loc’s guaranty that its tiles were resistant to
ultraviolet radiation and would not deteriorate for at least
twenty-five years. Id. Like Wilson, he noticed in
June 2011 that his tiles had begun to deteriorate.
Id. ¶ 4. And like Wilson’s tiles,
White’s tiles have lost most of their original color
and texture. Id. ¶ 5. Unlike Wilson, however,
White does not explain whether he filed a warranty claim or
contacted Metals USA or 604471 Ontario. See generally
id It appears he did not. See White Dep. 16-17,
ECF No. 82-2. The record does not include a copy of his
and White have filed declarations from about sixty others who
purchased Dura-Loc roofing tiles. See Class Member
Declarations, ECF Nos. 81-17 to -28. These customers’
tiles also degraded within a few years of installation.
See generally id Many of these customers’
declarations are accompanied by copies of warranty agreements
whose terms are similar or identical to those of
Wilson’s warranty, with two exceptions. First, it
appears Dura-Loc did not include the $400 service fee in its
warranties until in or about 2003 or 2004. Compare,
e.g., Class Member Decl. No. 36 (Heep), Ex. A, ECF No.
81-24 (no service fee; dated April 1, 2003), with,
e.g., Wilson Decl. Ex. A (service fee; dated Sept. 1,
2004). Second, warranties issued before in or about 2003 or
2004 appear not to impose a registration requirement on
original purchasers, and likewise allow no alternative
two-year warranty period. Compare, e.g., Heep Decl.
Ex. A, with, e.g., Wilson Decl. Ex. A. Aside from
these differences, the parties agree the warranties’
terms remained the same between 1996 and 2006.
investigate what caused the tiles’ degradation, White
and Wilson engaged Harold Harlan, a chemist. Harlan analyzed
the exterior coating of several unused Dura-Loc tiles
manufactured between 1999 and 2006. See Harlan Rep.
at 1. He also tested three used tiles that had been installed
on Jack White’s roof; two tiles from the north side and
one from the south side. See Id. He subjected these
tiles to Fourier transform infrared spectroscopy (FTIR), a
test used to determine the chemical composition of a given
material based on the spectrum of infrared light it absorbs.
See Id. at 2. Harlan concluded the exterior coating
of all the tiles he tested was “similar, if not
identical, ” and consisted of a mixture of three
acrylic polymers and quartz silica sand. Id. at 3.
As for the three used tiles, he reported that the south-side
tile and one of the north-side tiles emitted light in a
spectrum that indicated their acrylic polymers had broken
down after exposure to ultraviolet light and air.
Id. at 3-4. One of the north-side tiles did not.
Id. at 4. In addition, only the south-side tile
displayed visual degradation. See Id. at 3-4. Mr.
Harlan expected, given the similar composition of all the
tiles he tested, that if all had been exposed to the same
light and air as the south-side sample tile had been, all
would have exhibited the same visual and chemical
degradation. Id. at 4.
Harlan’s test results and their own observations,
Wilson and White allege that when Dura-Loc’s tiles are
exposed to a few years of sunlight and air, the layer of
resin between the tiles’ steel base and the colored
stone granules is compromised, and the granules fall off.
They argue that because the tiles at issue were all
manufactured by the same process and to the same
specifications, the defect is in the tiles’ design and
is common to every tile.
USA disagrees. It engaged another chemist, Richard Cechner,
to analyze roof tiles from Wilson’s and White’s
homes. See Cechner Rep. 1, ECF No. 82-3. Cechner
reviewed Dura-Loc’s technical and quality control
manuals, visited Wilson’s and White’s homes, and
examined samples of their roof tiles, both used and unused.
See generally Id. He estimated that when dried, the
layer of acrylic between the tiles’ metal base and the
colored granules should have been about 6 to 9 thousandths of
an inch thick, if it had been applied as specified in
Dura-Loc’s quality control manual. See Id. at
2. He then examined cross-sections of the sample tiles from
Wilson’s and White’s roofs, and found that in
many instances the dried layer of acrylic was less than 6
thousandths of an inch thick. Id. at 3-4. In other
instances, he found no evidence to show a topcoat layer was
ever applied, and sometimes granules were not seated well in
the dried basecoat. Id. Based on this investigation,
he concluded that the longevity of the bond between the metal
base and the colored granules depended on both how thickly
and evenly the acrylic basecoat was applied and whether a
topcoat was applied. Id. at 4. He also concluded the
sample tiles he tested did not comply with the specifications
in Dura-Loc’s quality control manuals. Id. It
is therefore Metals USA’s theory that the
plaintiffs’ tiles did not suffer from a design defect,
but a manufacturing defect. See Opp’n 14-15,
brings us to this case. Wilson and White filed a complaint in
this court in March 2012 against 604471 Ontario, Inc. and
Allan Reid, allegedly a former Dura-Loc executive. Compl.,
ECF No. 1. Essentially, they allege that contrary to
Dura-Loc’s warranty, the roofing tiles were not
“UV resistant” and degraded over time by shedding
their layer of stone granules. In their first complaint, they
alleged three claims: fraudulent concealment or
non-disclosure, Cal. Civ. Code §§ 1709, 1710(3);
violations of the California Consumer Legal Remedies Act
(CLRA), Cal. Civ. Code §§ 1750 et seq.;
and violations of the California Unfair Competition Law
(UCL), Cal. Bus. & Prof. Code §§ 17200 et
seq. Id. They later amended the complaint to substitute
Metals USA as a defendant in place of 604471 Ontario and to
add claims for breaches of express warranties under
California Commercial Code section 2313 and 15 U.S.C. §
2301. See First Am. Compl., ECF No. 11.
moved to dismiss the claim against him for lack of personal
jurisdiction, ECF No. 22, and the court dismissed the
complaint with leave to amend, ECF No. 34. Plaintiffs filed a
second amended complaint, omitting Reid as a defendant and
advancing only claims for breach of written warranties and
violations of the CLRA and UCL. See Second Am.
Compl., ECF No. 49. Metals USA moved to dismiss, arguing the
complaint lacked sufficient factual allegations to make out a
plausible claim for its liability under a theory of successor
liability. ECF No. 50. The court denied the motion, ECF No.
57, and Metals USA answered, ECF No. 59.
filed a third amended complaint by stipulation, ECF Nos. 76,
77, and that pleading remains operative, see Third
Am. Compl., ECF No. 78. The case now proceeds on two claims
for breach of express warranty, California Civil Code
sections 1790 et seq. and Commercial Code section
2313, and on the previously asserted claims for violations of
the CLRA and UCL. Metals USA is the only remaining defendant.
September 4, 2015, plaintiffs moved for class certification
of only one claim: breach of express warranty under
Commercial Code section 2313. See Mot. Class Cert.,
ECF No. 81; Mem. P. & A. at 14, ECF No. 81-1; Reply 1
& n.1, ECF No. 83. Metals USA opposed the motion,
Opp’n, ECF No. 82, and the plaintiffs replied, Reply,
ECF No. 83. Wilson and White propose the following class
All individuals and entities that own homes or other
structures located in the State of California on which
Dura-Loc Roofing Systems Limited’s Continental, Shadow
line, or Wood Shake stone coated steel roof shingles were
installed during the period of time beginning July 1, 1996
through May 12, 2006.
Mem. at 10.
the court’s hearing on December 4, 2015, plaintiffs
submitted an unsolicited supplemental brief addressing a
California Civil Code section discussed at hearing,
California Civil Code § 1797.94, and whether it applies
to this case. ECF No. 86. In general, section 1797.94
concerns whether home roof warranties are enforceable by one
who is not the original purchaser. Metals USA filed a
supplemental brief opposing the plaintiffs’
interpretation of that section. ECF No. 87. Because no
objections to these briefs were filed, and each party has had
an opportunity to express its views, the court considers
their merits here.
by class action is “an exception to the usual
rule” that only the individual named parties bring and
conduct lawsuits. Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338, 348 (2011) (citation and internal quotation
marks omitted). Only when a class action would promote the
“efficiency and economy of litigation” should a
motion for certification be granted. Crown, Cork &
Seal Co. v. Parker, 462 U.S. 345, 349 (1983). Class
certification is governed by Federal Rule of Civil Procedure
23. To be certified, a putative class must meet the threshold
requirements of Rule 23(a) and the more specific requirements
of one of three classes defined in Rule 23(b). Leyva v.
Medline Industries Inc., 716 F.3d 510, 512 (9th Cir.
23(a) imposes four requirements on every class. First, the
class must be “so numerous that joinder of all members
is impracticable.” Fed.R.Civ.P. 23(a)(1). Second,
questions of law or fact must be common to the class.
Id. R. 23(a)(2). Third, the named
representatives’ claims or defenses must be typical of
those of the class. Id. R. 23(a)(3). And fourth, the
representatives must “fairly and adequately protect the
interests of the class.” Id. R. 23(a)(4).
the plaintiffs seek certification under Rule 23(b)(3), which
imposes two additional requirements: first, “that the
questions of law or fact common to class members predominate
over any questions affecting only individual members, ”
and second, “that a class action is superior to other
available methods for fairly and efficiently adjudicating the
controversy.” The test of Rule 23(b)(3) is “far
more demanding, ” than that of Rule 23(a). Wolin v.