Wolph v. Acer America Corp.

272 F.R.D. 477, 79 Fed. R. Serv. 3d 162, 2011 U.S. Dist. LEXIS 35003, 2011 WL 1110754
CourtDistrict Court, N.D. California
DecidedMarch 25, 2011
DocketNo. C 09-01314 JSW
StatusPublished
Cited by30 cases

This text of 272 F.R.D. 477 (Wolph v. Acer America Corp.) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wolph v. Acer America Corp., 272 F.R.D. 477, 79 Fed. R. Serv. 3d 162, 2011 U.S. Dist. LEXIS 35003, 2011 WL 1110754 (N.D. Cal. 2011).

Opinion

ORDER ON MOTION FOR CLASS CERTIFICATION

JEFFREY S. WHITE, District Judge.

Now before the Court is the motion for class certification filed by Plaintiffs Lora and Clay Wolph (“Plaintiffs”). The Court finds that this matter is appropriate for disposition without oral argument. See Civ. L.R. 7-l(b). The Court DENIES Plaintiffs’ motion to strike the testimony of Dr. Alan Jay Smith and will consider Plaintiffs’ arguments as they bear on the weight of Dr. Smith’s testimony. (Doe. no. 115.)

Having considered the parties’ pleadings and papers and the relevant legal authority, the Court hereby conditionally GRANTS Plaintiffs’ motion for class certification with leave to amend the complaint. (Doc. no. 95.)

BACKGROUND

Plaintiffs filed this putative class action against Acer America Corporation (“Acer”) based on the allegedly defective Acer notebook computer they purchased. Plaintiffs allege that because of the defective nature of the notebook computers, the notebooks have serious problems, including that they freeze during use, crash, require frequent restarts and experience slow loading times. (FAC ¶ 3.) Plaintiffs allege that the reason for these defects is that Acer’s notebook computers are sold with Microsoft® Vista Home Premium, Business, or Ultimate operating systems (collectively, “Vista Premium”) pre-installed, but the notebook computers do not contain sufficient memory to properly run Vista Premium. (Id. ¶¶ 2, 3.)

Defendants filed a motion to dismiss the complaint, which the Court granted in part and denied in part by Order entered September 14, 2009. Plaintiffs filed an amended complaint on October 1, 2009. The first amended complaint alleges the following claims for relief: (1) violation of the Consumer Legal Remedies Act, Cal. Civil Code § 1750 et seq.; (2) breach of express warranty; (3) violation of the Magnuson-Moss Warranty Act (“MMWA”), 15 U.S.C. § 2301 et seq.; (4) violation of the false advertising law (“FAL”), Cal. Bus. & Prof.Code § 17500 et seq.; and (5) violation of the unfair competition law (“UCL”), Cal. Bus. & Prof.Code § 17200.

In the instant motion, Plaintiffs have amended the class definition stated in the operative complaint (FAC ¶ 100) and now seek class certification pursuant to Federal Rule of Civil Procedure 23 for the following class:

All persons and entities who reside in the United States who have purchased a new Acer notebook computer from Acer or an Acer Authorized Reseller, not for resale, that came pre-installed with a Microsoft ® Windows Vista Home Premium, Business, or Ultimate operating system, and contained 1 GB of Random Access Memory or less as shared memory for both the system and graphics.

(Pis.’ Mot. for Class Cert. (“Mot.”) at 14).

ANALYSIS

“Class certifications are governed by Federal Rule of Civil Procedure 23,” and a plaintiff seeking class certification bears the burden of “demonstrating that he has met each of the four requirements of Rule 23(a) and at least one of the requirements of Rule 23(b).” Lozano v. AT & T Wireless Servs., Inc., 504 F.3d 718, 724 (9th Cir.2007); see also Zinser v. Accufix Research Institute, Inc., 253 F.3d 1180,1186 (9th Cir.), amended 273 F.3d 1266 (9th Cir.2001) (trial court must conduct a “rigorous analysis” to determine whether the requirements of Rule 23 have been met). Any doubts regarding the propriety of class certification generally should be resolved in favor of certification. See, e.g., Gonzales v. Arrow Fin. Servs., LLC, 489 F.Supp.2d 1140, 1154 (S.D.Cal.2007). Further, “[e]lass certification is not immutable, and class representative status could be withdrawn or modified if at any time the representatives could no longer protect the interests of the class.” Cummings v. Connell, 316 F.3d 886, 896 (9th Cir.2003) (citing Soc. Servs. Union, Local 535 v. County of Santa Clara, 609 F.2d 944, 948-49 (9th Cir.1979)).

[482]*482In opposition to the motion for class certification, Acer argues that Plaintiffs cannot satisfy the requirement of ascertainability, the typicality and adequacy requirements of Rule 23(a), or the predominance and superiority requirements of Rule 23(b)(3). As a threshold matter, the Court turns first to the question whether Plaintiffs have defined an ascertainable class.

A. Ascertainability

As a threshold matter, and apart from the explicit requirements of Rule 23(a), the party seeking class certification must demonstrate that an identifiable and ascertainable class exists. Mazur v. eBay Inc., 257 F.R.D. 563, 567 (N.D.Cal.2009). “‘Although there is no explicit requirement concerning the class definition in FRCP 23, courts have held that the class must be adequately defined and clearly ascertainable before a class action may proceed.’ ” Schwartz v. Upper Deck Co., 183 F.R.D. 672, 679-80 (S.D.Cal.1999) (quoting Elliott v. ITT Corp., 150 F.R.D. 569, 573-74 (N.D.Ill.1992)). “A class definition should be ‘precise, objective and presently ascertainable.’ ” Rodriguez v. Gates, 2002 WL 1162675 at *8 (C.D.Cal.2002) (quoting O’Connor v. Boeing North American, Inc., 184 F.R.D. 311, 319 (C.D.Cal. 1998)); see also Manual for Complex Litigation, Fourth § 21.222 at 270-71 (2004). While the identity of the class members need not be known at the time of certification, class membership must be clearly ascertainable. DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir.1970). The class definition must be sufficiently definite so that it is administratively feasible to determine whether a particular person is a class member. See, e.g., Davoll v. Webb, 160 F.R.D. 142, 144 (D.Colo. 1995).

Acer contends that Plaintiffs fail to define an ascertainable class because the proposed class of purchasers who experienced problems is too subjective in that not all purchasers experienced problems such as Plaintiffs did. (Defendant’s Opposition to Pls.’s Mot. for Class Cert. (“Opp.”) at 9.) Where Plaintiffs’ allegations of the existence of a defect are susceptible to proof by generalized evidence, the actual injuries suffered by each class member need not be identical to demonstrate that an identifiable and ascertainable class exists. See Wolin v. Jaguar Land Rover North America, LLC, 617 F.3d 1168, 1173 (9th Cir.2010). Acer argues that Plaintiffs fail to show that the Acer notebooks were defective such that all purchasers of the notebooks would have standing as members of the class. “While plaintiffs need not make more than allegations as to their substantive claims, whether the suit is appropriate for class resolution must be actually demonstrated, not just alleged, to the district court’s satisfaction.” Dukes v. Wah-Mart Stores, Inc., 603 F.3d 571, 590 (9th Cir.2010) (en banc).

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272 F.R.D. 477, 79 Fed. R. Serv. 3d 162, 2011 U.S. Dist. LEXIS 35003, 2011 WL 1110754, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wolph-v-acer-america-corp-cand-2011.