NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 14 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
TISHA HILARIO, individually and on No. 23-15264 behalf of a class of all others similarly situated, D.C. No. 3:20-cv-05459-WHO
Plaintiff-Appellee, MEMORANDUM* v.
ALLSTATE INSURANCE COMPANY,
Defendant-Appellant.
Appeal from the United States District Court for the Northern District of California William Horsley Orrick, District Judge, Presiding
Argued and Submitted January 11, 2024 San Francisco, California
Before: SILER,** CLIFTON, and M. SMITH, Circuit Judges.
Tisha Hilario brought a class action suit against Allstate Insurance Company
for negligence and unfair and fraudulent business practices under Cal. Bus. & Prof.
Code § 17200, et seq., alleging that Allstate “artificially inflated premiums” for
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. many California homeowners by double counting built-in garage space. Hilario
successfully sought class certification under Federal Rule of Civil Procedure
23(b)(3), and the district court redefined the class as: “All Allstate California
homeowners’ insurance policyholders as of March 2019, who paid premiums and
had at least one built-in garage, and whose garage square footage was counted
twice in calculating insured square footage and premiums.” Allstate timely filed an
interlocutory appeal of the class certification ruling. We have jurisdiction under
28 U.S.C. § 1292(e) and Federal Rule of Civil Procedure 23(f). Because the parties
are familiar with the facts, we do not recount them here, except as necessary to
provide context to our ruling. We affirm.
1. On appeal, Allstate argues for the first time that Hilario lacks standing.
“Questions of standing and ripeness may be raised and considered for the first time
on appeal, including sua sponte,” and are reviewed de novo. Stormans, Inc. v.
Selecky, 586 F.3d 1109, 1119 (9th Cir. 2009). In class actions, the named plaintiff
is the focus of the standing inquiry. Ellis v. Costco Wholesale Corp., 657 F.3d 970,
978 (9th Cir. 2011). Allstate’s sole argument is that Hilario has not suffered an
injury in fact because the true square footage of her house was always higher than
Allstate’s estimate, which it used to calculate Hilario’s premiums.
This argument lacks merit. It is undisputed that Hilario paid a higher
insurance premium than she otherwise would have because Allstate artificially
2 23-15264 inflated its square footage estimate of Hilario’s home by double-counting garage
space when it implemented Project UIN. See Lujan v. Defenders of Wildlife, 504
U.S. 555, 560–61 (1992) (Standing requires a plaintiff to suffer an “injury in fact,”
that is “‘fairly traceable’ to the challenged action,” and is “‘likely’ to be redressed
by a favorable decision.’”). Hilario suffered a “concrete and particularized” injury
that was “actual or imminent, not conjectural or hypothetical”—she paid more than
she otherwise would have because Allstate double counted the square footage of
her garage space. See Maya v. Centex Corp., 658 F.3d 1060, 1069 (9th Cir. 2011)
(quotations omitted). “This is a quintessential injury-in-fact.” See id. at 1069
(plaintiffs had standing where, “as a result of defendants’ actions, [plaintiffs] paid
more for their homes than the homes were worth at the time of sale”).
2. The district court did not abuse its discretion in redefining the certified
class. “Rule 23 provides district courts with broad authority at various stages in the
litigation to revisit class certification determinations and to redefine or decertify
classes as appropriate.” Wang v. Chinese Daily News, Inc., 737 F.3d 538, 546 (9th
Cir. 2013). Allstate’s argument that the class is too broadly defined because it may
contain uninjured members fails because “even a well-defined class may inevitably
contain some individuals who have suffered no harm as a result of a defendant’s
unlawful conduct.” Ruiz Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1136 (9th
Cir. 2016).
3 23-15264 3. Parties seeking class certification must satisfy Rule 23(a)’s requirements
of numerosity, commonality, typicality, and adequacy. Shady Grove Orthopedic
Assocs., P.A. v. Allstate Insurance Co., 559 U.S. 393, 398 (2010). Here, the district
court certified the class under Rule 23(b)(3), which additionally requires that
“questions of law or fact common to class members predominate over any
questions affecting only individual members, and that a class action is superior to
other available methods for fairly and efficiently adjudicating the controversy.”
Allstate challenges the district court’s decision to certify the class with respect to
its conclusions on typicality, predominance, and superiority. Reviewing for abuse
of discretion, we hold that the district court’s conclusions were not illogical,
implausible, or unsupported by the record. See Leyva v. Medline Industries Inc.,
716 F.3d 510, 513 (9th Cir. 2013).
As to typicality, “a named plaintiff’s motion for class certification should
not be granted if there is a danger that absent class members will suffer if their
representative is preoccupied with defenses unique to it.” Hanon v. Dataproducts
Corp., 976 F.2d 497, 508 (9th Cir. 1992) (quotation marks omitted). Allstate
argues Hilario did not correct the square footage estimate Allstate used to
determine her premium as contractually required, and that this unique contractual
dispute will “consume the focus of this litigation.” First and foremost, the true
square footage of Hilario’s home is irrelevant to determining whether Allstate
4 23-15264 violated California law when it implemented Project UIN. As the district court
explained, “[e]ven if Hilario’s policy should have reflected that the ‘true’ square
footage of her house was larger than what was being insured, that is a separate
question from whether Allstate increased her premium because it double counted
her garage space.” Any dispute between Allstate and Hilario over the true square
footage of her home is inapposite and will not consume the focus of this litigation.
Second, Allstate’s potential contractual counterclaim arises from boilerplate
language in Hilario’s policy. Since the language is boilerplate, it is likely to be
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 14 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
TISHA HILARIO, individually and on No. 23-15264 behalf of a class of all others similarly situated, D.C. No. 3:20-cv-05459-WHO
Plaintiff-Appellee, MEMORANDUM* v.
ALLSTATE INSURANCE COMPANY,
Defendant-Appellant.
Appeal from the United States District Court for the Northern District of California William Horsley Orrick, District Judge, Presiding
Argued and Submitted January 11, 2024 San Francisco, California
Before: SILER,** CLIFTON, and M. SMITH, Circuit Judges.
Tisha Hilario brought a class action suit against Allstate Insurance Company
for negligence and unfair and fraudulent business practices under Cal. Bus. & Prof.
Code § 17200, et seq., alleging that Allstate “artificially inflated premiums” for
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. many California homeowners by double counting built-in garage space. Hilario
successfully sought class certification under Federal Rule of Civil Procedure
23(b)(3), and the district court redefined the class as: “All Allstate California
homeowners’ insurance policyholders as of March 2019, who paid premiums and
had at least one built-in garage, and whose garage square footage was counted
twice in calculating insured square footage and premiums.” Allstate timely filed an
interlocutory appeal of the class certification ruling. We have jurisdiction under
28 U.S.C. § 1292(e) and Federal Rule of Civil Procedure 23(f). Because the parties
are familiar with the facts, we do not recount them here, except as necessary to
provide context to our ruling. We affirm.
1. On appeal, Allstate argues for the first time that Hilario lacks standing.
“Questions of standing and ripeness may be raised and considered for the first time
on appeal, including sua sponte,” and are reviewed de novo. Stormans, Inc. v.
Selecky, 586 F.3d 1109, 1119 (9th Cir. 2009). In class actions, the named plaintiff
is the focus of the standing inquiry. Ellis v. Costco Wholesale Corp., 657 F.3d 970,
978 (9th Cir. 2011). Allstate’s sole argument is that Hilario has not suffered an
injury in fact because the true square footage of her house was always higher than
Allstate’s estimate, which it used to calculate Hilario’s premiums.
This argument lacks merit. It is undisputed that Hilario paid a higher
insurance premium than she otherwise would have because Allstate artificially
2 23-15264 inflated its square footage estimate of Hilario’s home by double-counting garage
space when it implemented Project UIN. See Lujan v. Defenders of Wildlife, 504
U.S. 555, 560–61 (1992) (Standing requires a plaintiff to suffer an “injury in fact,”
that is “‘fairly traceable’ to the challenged action,” and is “‘likely’ to be redressed
by a favorable decision.’”). Hilario suffered a “concrete and particularized” injury
that was “actual or imminent, not conjectural or hypothetical”—she paid more than
she otherwise would have because Allstate double counted the square footage of
her garage space. See Maya v. Centex Corp., 658 F.3d 1060, 1069 (9th Cir. 2011)
(quotations omitted). “This is a quintessential injury-in-fact.” See id. at 1069
(plaintiffs had standing where, “as a result of defendants’ actions, [plaintiffs] paid
more for their homes than the homes were worth at the time of sale”).
2. The district court did not abuse its discretion in redefining the certified
class. “Rule 23 provides district courts with broad authority at various stages in the
litigation to revisit class certification determinations and to redefine or decertify
classes as appropriate.” Wang v. Chinese Daily News, Inc., 737 F.3d 538, 546 (9th
Cir. 2013). Allstate’s argument that the class is too broadly defined because it may
contain uninjured members fails because “even a well-defined class may inevitably
contain some individuals who have suffered no harm as a result of a defendant’s
unlawful conduct.” Ruiz Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1136 (9th
Cir. 2016).
3 23-15264 3. Parties seeking class certification must satisfy Rule 23(a)’s requirements
of numerosity, commonality, typicality, and adequacy. Shady Grove Orthopedic
Assocs., P.A. v. Allstate Insurance Co., 559 U.S. 393, 398 (2010). Here, the district
court certified the class under Rule 23(b)(3), which additionally requires that
“questions of law or fact common to class members predominate over any
questions affecting only individual members, and that a class action is superior to
other available methods for fairly and efficiently adjudicating the controversy.”
Allstate challenges the district court’s decision to certify the class with respect to
its conclusions on typicality, predominance, and superiority. Reviewing for abuse
of discretion, we hold that the district court’s conclusions were not illogical,
implausible, or unsupported by the record. See Leyva v. Medline Industries Inc.,
716 F.3d 510, 513 (9th Cir. 2013).
As to typicality, “a named plaintiff’s motion for class certification should
not be granted if there is a danger that absent class members will suffer if their
representative is preoccupied with defenses unique to it.” Hanon v. Dataproducts
Corp., 976 F.2d 497, 508 (9th Cir. 1992) (quotation marks omitted). Allstate
argues Hilario did not correct the square footage estimate Allstate used to
determine her premium as contractually required, and that this unique contractual
dispute will “consume the focus of this litigation.” First and foremost, the true
square footage of Hilario’s home is irrelevant to determining whether Allstate
4 23-15264 violated California law when it implemented Project UIN. As the district court
explained, “[e]ven if Hilario’s policy should have reflected that the ‘true’ square
footage of her house was larger than what was being insured, that is a separate
question from whether Allstate increased her premium because it double counted
her garage space.” Any dispute between Allstate and Hilario over the true square
footage of her home is inapposite and will not consume the focus of this litigation.
Second, Allstate’s potential contractual counterclaim arises from boilerplate
language in Hilario’s policy. Since the language is boilerplate, it is likely to be
found on every class member’s homeowner’s policy and cannot be said to be a
defense unique to Hilario.
Allstate contends that individual damages inquiries will predominate, but
“the need for individual damages calculations does not, alone, defeat class
certification.” Vaquero v. Ashley Furniture Industries, Inc., 824 F.3d 1150, 1155
(9th Cir. 2016). Damages issues predominate only where a plaintiff cannot “prove
that damages resulted from the defendant’s conduct.” Id. at 1154. “No such
problem exists in this case” because “even if the measure of damages proposed
here is imperfect, it cannot be disputed that the damages (if any are proved)
stemmed” from Allstate’s implementation of Project UIN and its double-counting
of garage space. See id. at 1154-55.
5 23-15264 Finally, a class action is not superior where “each class member has to
litigate numerous and substantial separate issues to establish his or her right to
recover individually.” Zinser v. Accufix Research Institute, Inc., 253 F.3d 1180,
1192 (9th Cir. 2001). Allstate makes the same arguments against the district
court’s superiority conclusion as with its predominance conclusion, namely that the
need to calculate individual damages would make this class action unmanageable.
But the denial of class certification is improper on superiority grounds where that
denial is “based on manageability concerns on the need to individually calculate
damages.” Leyva, 716 F.3d at 515. As with predominance, the need to calculate
individual damages cannot defeat class certification. Id.
AFFIRMED.
6 23-15264