CLASS ACTIONS

Ronald A. Hartmann, Esq.

Quisenberry & Kabateck, LLP, Los Angeles, California

November, 2001

TABLE OF CONTENTS

1. Legal Overview: Class Prerequisites.

2. The Class Must Be Numerous.

3. Joinder of All Members Must be Impracticable.

4. The Class Must Be Ascertainable.

5. The Class Must Have a Well-Defined Community of Interest in the Questions of Law and Fact Involved Affecting the Parties to Be Represented.

6. Common Questions of Law or Fact Must Predominate Over Individual Issues.

7. Plaintiffs Must Be Members of the Proposed Class, and Their Claims must Be Typical of Those of the Class.

8. Plaintiffs and Their Counsel Must Fairly and Adequately Protect the Interests of the Class.

9. The Class Action Mechanism Must be Superior to Other Available Methods for the Fair and Efficient Adjudication of the Controversy.

10. Liability Is Not Examined Before Class Certification.

11. Creation of Subclasses Can Address Judicial and Defense Concerns With Class Certification.

12. Statute of Limitations Tolling in Class Actions.

13. Public Policy Supports Class Certification and Doubts Should Be Resolved in Favor of Class Certification. Courts are Encouraged to Employ the Class Action Device Creatively.

1. Legal Overview: Class Prerequisites.

1. Cal. Civ. Proc. Code §382. Section 382 authorizes a class action when the issue

is a common or general interest of many persons, or when the parties are

numerous and it is impracticable to bring them all before the court.

2. Consumer Legal Remedies Act, Cal. Civ. Code § 1781(b). Section 1781(b)

requires the following to certify a class action:

(1) Impracticability. It must be impracticable to bring all members of the

class before the court.

(2) Substantial similarity. The questions of law or fact common to the class

must be substantially similar and they must predominate over the

questions affecting the individual members.

(3) Typicality. The claims or defenses of the representative plaintiffs must be

typical of the claims or defenses of the class.

(4) Adequacy. The representative plaintiffs must fairly and adequately protect

the interests of the class.

The CLRA should be referred to for guidance in all class actions. “Although section

1781, subdivision (d) does not directly apply to the present case because insurance is technically

neither a "good" nor a "service" within the meaning of the act (Civ. Code, § 1761, subds. (a),

(b)), we expressly held in Vasquez v. Superior Court, 4 Cal. 3d 800, 820 (1971), that the class

action procedures prescribed by the Consumer Legal Remedies Act could and should

appropriately be utilized by trial courts in all class actions.” Civil Service Employees Ins. Co. v.

Superior Court, 22 Cal. 3d 362, 376 (1978).

3. Federal Rules of Civil Procedure ("FRCP") Rule 23. California courts may

look to FRCP Rule 23 for guidance in applying California state class action procedures. Trotsky

v. Los Angeles Fed. Sav. & Loan Assn., 48 Cal. App. 3d 134, 140 (1975); see also Kennedy v.

Baxter Healthcare Corp., 43 Cal. App. 4th 799, 809 n5 (1996) (California courts may turn to

federal law and rule 23 for guidance only in the absence of relevant state precedent.).

4. Los Angeles County Superior Court Local Rules, Rule 15.

5. Cal. Business & Professions Code § 17200.

2. The Class Must Be Numerous.

No magic number exists with regard to the number of class members which are required

as a matter of law in order to satisfy the "numerosity" requirement. Rose v. City of Hayward, 126

Cal. App. 3d 926, 935-936 (1981). As few as forty (40) class members raises a presumption that

joinder is impracticable. Newberg § 3.05, page 3-25. This same view has been adopted by

federal courts in California. Ikonen v. Hartz Mountain Corp., 122 F.R.D. 258, 262 (SD Cal.

1988). In Vasquez v. Superior Court, 4 Cal. 3d 800 (1971), the class had approximately 200

members.

3. Joinder of All Members Must be Impracticable.

Civil Code section 1781(b) requires that "[i]t is impracticable to bring all members of the

class before the court." Joinder of all class members may also be impracticable if “the amount of

individual recovery would be insufficient to justify bringing a separate action." Vasquez v.

Superior Court of San Joaquin County, 4 Cal. 3d 800, 808 (1971); See State of California v. Levi

Strauss & Co. (1986) 41 Cal. 3d 460, 467.

4. The Class Must Be Ascertainable.

To obtain certification of the class, the class must be ascertainable. “Ascertainability is

required in order to give notice to putative class members as to whom the judgment in the action

will be res judicata.” Hicks v. Kaufman & Broad, 89 Cal. App. 4th 908, 914 (2001) (footnotes

omitted). The concept of ascertainability is often analyzed together with the requirement that

there be a “well-defined community of interest in the questions of law and fact involved.” The

proper process is to analyze the two concepts separately. Hicks v. Kaufman & Broad, 89 Cal.

App. 4th 908, 913-914 (2001).

Ascertainability of the class, i.e., determining who is a potential member of the class,

“can achieved by defining the class in terms of objective characteristics and common

transactional facts making the ultimate identification of class members possible when that

identification becomes necessary.” Hicks v. Kaufman & Broad, 89 Cal. App. 4th 908, 915 (2001)

(footnotes omitted).

The issue of ascertainability in cases concerning real property is a "relatively simple

matter." Richmond v. Dart Industries, Inc., 29 Cal. 3d 462, 478 (1981). In a typical construction

defect case, the class can be ascertained by examining real property records to determine the

record owners of the homes at issue, or by requesting the developer’s sales and construction

records. See, Hicks v. Kaufman & Broad, 89 Cal. App. 4th 908, 913-916 (2001); see also

Richmond v. Dart Industries, Inc., 29 Cal. 3d 462, 478 (1981).

5. The Class Must Have a Well-Defined Community of Interest in the Questions of

Law and Fact Involved Affecting the Parties to Be Represented.

The Community of Interest encompasses the following three concepts:

(1) Predominant common questions of law or fact;

(2) Class representatives with claims typical of the class; and

(3) Class representatives who can adequately represent the class.

See Linder v. Thrifty Oil Co., 23 Cal. 4th 429 (2000); Lazar v. Hertz Corp.,143 Cal. App.

3d 128 (1983).

6. Common Questions of Law or Fact Must Predominate Over Individual Issues.

The test to determine “predominance” is whether the common issues would be "the

principal issues in any individual action, both in terms of time to be expended in their proof and

of their importance, so that if a class suit were not permitted, a multiplicity of legal actions

dealing with identical basic issues would be required in order to permit recovery by each [absent

class member]." Vasquez v. Superior Court, 4 Cal. 3d 800, 810 (1971).

In Collins v. Rocha, 7 Cal. 3d 232, 238 (1972), the California Supreme Court stated:

The ultimate question in every case of this type is whether, given

an ascertainable class, the issues which may be jointly tried, when

compared with those requiring separate adjudication, are so

numerous or substantial that the maintenance of a class action

would be advantageous to the judicial process and to the litigants.

Some individual questions will not defeat class certification so long as they do not

predominate, as the "threshold of commonality is not high.” Plaintiffs need not show that all

factual and legal issues in the litigation are common. Yslava v. Hughes Aircraft Co., 845 F. Supp

705, 712 (D. Ariz. 1993) (citations omitted). "The simple question is whether there are issues

common to all class members." Yslava, 845 F. Supp at 712 (citations omitted).

The court should apply a balancing test to determine whether a sufficient community of

interest exists. The court should weigh the importance of the legal and factual questions

common to the case and the resulting judicial economy from adjudicating as a class, against the

burden of trying many separate lawsuits. Daar v. Yellow Cab, 67 Cal. 2d 695 (1967). The

"community of interest" need not be so exact as to make the class members necessary parties.

Daar v. Yellow Cab Co., 67 Cal. 2d 695 (1967). Class certification does not require that

common questions be completely dispositive as to all potential class members. Rosack v. Volvo

of America Corp., 131 Cal. App. 3d 741, 754 (1982).

As the leading commentator states:

Rule 23(a)(2) does not require that all questions of law or fact

raised in the litigation be common. The test or standard for

meeting the Rule 23(a)(2) prerequisite is qualitative rather than

quantitative – that is, there need be only a single issue common to

all members of the class. Therefore, this requirement is easily met

in most cases.

Newberg § 3.10, pp. 3-48 to 3-50 (emphasis added).

Common Nucleus of operative facts test. Common questions predominate when the

determination of each of the core legal issues revolves around a "common nucleus" of operative

facts that underlies this action, “even though there may be lacking complete identity." Siegel v.

Chicken Delight, Inc., 271 F. Supp 722, 726 (ND Cal. 1967): Ysalva, 845 F. Supp. at 712 ("A

common question is one which arises from a ‘common nucleus of operative facts’ regardless of

whether the underlying facts fluctuate over the class period and vary as to individual claimants").

Certification is proper even where there may be substantial differences in the amount of

damages to which each class member may be entitled. Individualized measures of damages are

not unusual in class action settings. The common questions on liability are not overshadowed by

individual damage issues. B.W.I. Custom Kitchen v. Owens-Illinois, 191 Cal. App. 3d 1341,

1343 (1987).

The elements of the substantive claims asserted in the complaint must be examined to

determine if the common issues to be tried will predominate over questions, if any, which are

peculiar to individual members of the class. Daar v. Yellow Cab Co., 67 Cal.2d 695, 704-706

(1967). In Lazar v. Hertz Corp., 143 Cal. App. 3d 128, 134 (1983), the court rejected defendant's

improper attempt to argue the merits, and stated:

“Reviewing courts consistently look to the allegations of the

complaint and the declarations of attorneys representing the

plaintiff class to determine if the class is ascertainable and has a

well-defined community of interest." (Citations omitted.)

In Hassine v. Jeffers, 846 F. 2d 169, 176-177 (3rd Cir. 1988) regarding “commonality”

and “typicality” the court explained:

The “typicality” and “commonality” prerequisites of Rule 23 do not require that

all of the putative class members share identical claims. These prerequisites

mandate only that complainants’ claims be common, and not in conflict.

Typicality entails an inquiry whether the named plaintiff’s individual

circumstances are markedly different or ... the legal theory upon which the claims

are based differs from that upon which the claims of other class members will

perforce be based. Rule 23 does not require that the representative plaintiff have

endured precisely the same injuries that have been sustained by the class

members, only that the harm complained of be common to the class, and that the

named plaintiff demonstrate a personal interest or threat of injury ... [that] is real

and immediate, not conjectural or hypothetical.

[Citations omitted.]

Substantial differences in the amount of each class member’s damages will not defeat

class certification. Vasquez v. Superior Court, 4 Cal.3d 800 (1971); Daar v. Yellow Cab Co., 67

Cal. 2d 695 (1967); B.W.I. Custom Kitchen v. Owens-Illinois, 191 CA3d 1341, 1343 (1987).

In Rosack v. Volvo of America Corp., 131 Cal. App. 3d 741, 762-763 (1982), the court

stated:

Various practical methods have been devised to expeditiously facilitate the

calculation of individual damages, including bifurcation and the creation of

subclasses. ... In some cases certification of the class has been granted for

purposes of liability only, reserving the right to reassess the possibility of

subclasses for that purpose at a later date.

[Citations omitted; emphasis added.]

7. Plaintiffs Must Be Members of the Proposed Class, and Their Claims must Be

Typical of Those of the Class.

The third requirement for class certification is that "[t]he claims or defenses of the

representative plaintiffs are typical of the claims or defenses of the class." Civil Code §

1781(b)(3).

The "typicality" and "commonality" requirements for class certification tend to merge,

and the finding of commonality ordinarily will support a finding of typicality. See, General

Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 153 n.13 (1982).

The leading commentator on class actions, the late Professor Newberg, summarized the

concept of "typicality" as follows:

Typicality determines whether a sufficient relationship exists between the injuries of the

named plaintiffs and the conduct affecting the class, so that the court may properly

attribute a collective nature to the challenged conduct. In other words, when such a

relationship is shown, a plaintiff's injury arises from or is directly related to a wrong to a

class, and that wrong includes the wrong to the plaintiff. Thus, a plaintiff's claim is

typical if it arises from the same event or practice or course of conduct that gives rise to

the claims of other class members, and if his or her claims are based on the same legal

theory. When it is alleged that the same unlawful conduct was directed at or affected

both the named plaintiff and the class sought to be represented, the typicality requirement

is usually met irrespective of varying fact patterns which underlie individual claims.

Newberg § 3.13, pp. 3-76 to 3-77 (emphasis added).

A representative plaintiff's claim is typical if it arises from the same event, practice or

course of conduct that gives rise to the claims of other class members, and is based on the same

legal theory. See, e.g., In re United Energy Corp. Solar Power Modules Tax Shelter Investments

Securities Litigation, 122 F.R.D. 251 (C.D. Cal. 1988). The named plaintiff's claim will be

typical of the other class members where it arises "from the same event . . . giving rise to the

claims of other class members . . . . Any factual differences do not defeat certification . . . where

the claims arise from the same legal theory." United Energy, 122 F.R.D. at 256 (citations

omitted, emphasis added).

In Day v. NLO, 851 F. Supp. 869, 884 (S.D. Ohio 1994), the court rejected the

defendants' arguments about individual variations in holding that "the focus of the case at bar is

the behavior of the defendants. Fundamentally all claims rest on the same alleged misconduct.

Therefore, we are confident that the issue of liability is one best litigated by the class as a whole."

See In re Unioil Securities Litigation, 107 F.R.D. 615, 620 (C.D. Cal. 1985).

California only requires that plaintiff's interest be significantly similar to that of the other

class members to establish typicality. Richmond v. Dart Industries, Inc., 29 Cal. 3d 462, 469

(1981); Stephens v. Montgomery Ward, 193 Cal. App. 3d 411, 422 (1987).

The Court in Classen v. Weller, 145 Cal. App. 3d 27, 46 (1983), stated the correct rule

(emphasis in original): "We note that it has never been the law in California that the class

representative must have identical interests with the class members." Rather, typicality is met

when there is an identity of interest among members of the class and a lack of adversity or

antagonism between the named plaintiffs and the absent class members over the core issues

involved in the litigation. Harrison v. Board of Supervisors of San Mateo County, 44 Cal. App.

3d 852, 863 (1975).

The primary issue is whether the plaintiff is a member of the class as defined. Trotsky v.

Los Angeles Federal Sav. & Loan Ass'n, 48 Cal. App. 3d 134, 146 (1975). Importantly,

"typicality" does not require that possible defenses against a plaintiff's claims be typical of

defenses asserted against the class generally. For example, in Anthony v. General Motors, 33

Cal. App. 3d 699 (1973), plaintiffs were found to be typical of a class of consumers who

purchased trucks equipped with defective wheels, even though the class as so defined included

purchasers who had already suffered personal property damage in accidents due to the defect,

while plaintiffs did not allege that they had sustained any injuries or damage due to the defect.

This "unique" defense did not defeat class certification. Anthony v. General Motors, 33

Cal.App.3d at 704.

8. Plaintiffs and Their Counsel Must Fairly and Adequately Protect the Interests of the

Class.

The last requirement under Cal. Civ. Code section 1781(b) for class certification is that

"[t]he representative plaintiffs will fairly and adequately protect the interests of the class." Cal.

Civil Code §1781(b)(4).

Adequacy of representation consists of two components: (1) There must be no disabling

conflicts of interest between the class representative and the class; and (2) the named

representative must be represented by counsel competent and experienced in the kind of litigation

to be undertaken. McGhee v. Bank of America, 60 Cal. App. 3d 442, 450 (1976); see also Lazar

v. Hertz Corp., 143 Cal. App. 3d 128, 142 (1983). Another element of the “adequacy of

representation” component is the requirement that, for the class representative to adequately

represent the class, the representative “must raise those claims reasonably expected to be raised

by the members of the class.” Hicks v. Kaufman & Broad, 89 Cal. App. 4th 908, 924 (2001).

In a typical construction defects case, the named class representatives and members of the

class will seek substantially the same relief -- monetary compensation for their defective

plumbing system. Conflicts may arise if, for example, the class representative does not seek the

full relief that class members would be expected to pursue if they sued individually. See, e.g.,

City of San Jose v. Superior Court, 12 Cal. 3d 447, 464 (1974); Chance v. Superior Court, 58

Cal. 2d 275, 290 (1962); Hicks v. Kaufman & Broad, 89 Cal. App. 4th 908, 914 (2001); Anthony

v. General Motors Corp., 33 Cal. App. 3d 699, 704 (1973). Further discussion of conflicts of

interest can be found in Bowles v. Superior Court, 44 Cal. 2d 574, 587-588 (1955). See Daar v.

Yellow Cab Co., 67 Cal. 2d 695, 709 (1967); Chance v. Superior Court, 58 Cal. 2d 275, 287

(1962); Harrison v. Board of Supervisors of San Mateo County, 44 Cal. App. 3d 852, 863

(1975).

9. The Class Action Mechanism Must be Superior to Other Available Methods for the

Fair and Efficient Adjudication of the Controversy.

The party moving for class certification must show that a substantial benefit will accrue

to the litigants and the court. Linder v. Thrifty Oil Co., 23 Cal. 4th 429, 435 (2000) (a class action

should be certified only if it provides substantial benefits to the courts and the litigants); Daar v.

Yellow Cab Co., 67 Cal. 2d 695, 713 (1967); City of San Jose v. Superior Court, 12 Cal. 3d 447,

460 (1974). Alternatives to class action litigation include Bus. & Prof. Code section 17200

action and individual actions.

The “superiority” requirement ties into the “commonality” requirement, as the

predominance of common questions of law and fact will tend to ensure that the litigants will

benefit from class action litigation. See Hicks v. Kaufman & Broad, 89 Cal. App. 4th 908, 914

(2001). A predominance of common issues will ensure efficiency, as the same issues will not

need to be tried over and over again, with the concomitant waste of judicial resources, and will

avoid the possibility of inconsistent verdicts and judgments.

10. Liability Is Not Examined Before Class Certification.

Proponents of class certification are not to be called upon to establish liability before class

certification. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-178 (1974); Linder v. Thrify Oil

Co., 23 Cal. 4th 429 (2000). Class certification motions are procedural in nature and should be

decided primarily on the allegations of the complaint and the declarations of the attorneys,

without examination of the merits. Linder v. Thrify Oil Co., 23 Cal. 4th 429, 439-440 (2000)

("the merits of a lawsuit may not be considered on a class certification motion. [W]e view the

question of certification as essentially a procedural one that does not ask whether an action is

legally or factually meritorious"). See also In re Unioil Securities Litigation, 107 F.R.D. 615,

618 (C.D. Cal. 1985) (the trial court "is bound to take the substantive allegations of the complaint

as true, thus necessarily making the class order speculative". Los Angeles County Local Rule

15.17(g) is consistent and prohibits a merits inquiry. Accord, Newberg & Conte, Newberg on

Class Actions (3d ed. 1992) § 3.29, p. 3-149 ("It is also settled that the named plaintiff need not

demonstrate a probability of success on the merits.") (hereinafter “Newberg”).

11. Creation of Subclasses Can Address Judicial and Defense Concerns With Class

Certification.

Frequently, issues and problems arise in defining and certifying the class. For example,

the potential class members may have access to different legal theories and remedies depending

on their status as original buyer (privity of contract) versus subsequent buyer (no privity of

contract). Other potential members may have differing legal rights depending on whether or not

they can establish damage to other property from the construction defects. See Aas v. Superior

Court, 24 Cal. 4th 627 (2000)). Rather than allow the differing class member status and rights to

preclude class certification, counsel and trial courts should creatively explore the creation of

subclasses to resolve the problems.

Because California law and policy favor the fullest and most flexible use of the class

action procedure, any doubt as to the propriety of class certification should be resolved in favor

of certification. Vasquez v. Superior Court, 4 Cal. 3d 800, 821 (1971); Richmond v. Dart

Industries, Inc., 29 Cal. 3d 462, 470-471, 473 (1981); La Sala v. American Sav. & Loan

Association., 5 Cal. 3d 864, 875 (1971). This flexible use of the class action procedure includes

the creation of subclasses.

Trial courts possess a large degree of flexibility in defining the parameters of the

proposed certified class. Occidental Land v. Superior Court of Orange County, 18 Cal. 3d 355,

360 (1976); Vasquez v. Superior Court, 4 Cal. 3d 800, 821 (1971); Hicks v. Kaufman & Broad,

89 Cal. App. 4th 908, 925-926 (2001). FRCP Rule 23(c)(4) provides for subclasses: "When

appropriate (A) an action may be brought or maintained as a class action with respect to

particular issues, or (B) a class may be subdivided into subclasses and each subclass treated as a

class . . . .”

In Occidental Land, the California Supreme Court upheld a trial court's certification of a

class alleging fraudulent misrepresentation against the developer of a multi-tract residential

subdivision. The common issue was whether the developer fraudulently misrepresented the

actual maintenance costs of the common areas. The Court rejected defendant's contention that

the class was too broad because it included resale purchasers along with original purchasers:

"[T]his situation presents no obstacle. If expedient, the trial court may divide the class into

subclasses." Occidental Land, 18 Cal. 3d at 360 n. 3.

The trial court has many options in structuring a certified class, and it may create

subclasses based on any logical scheme. If unforeseen issues arise after certification, the court

can create subclasses. The court could certify a subclasses based upon the status of the

homeowner - a subclass for original home buyers and a subclass for subsequent home buyers.

The court may certify a class for purposes of liability only. The court may certify a class for

certain theories only, for example, breach of express and implied warranties, but not for other

theories. See Hicks v. Kaufman & Broad, 89 Cal. App. 4th 908, 925-926 (2001); Rosack v. Volvo

of America Corp., 131 Cal. App. 3d 741, 762-763 (1982) (“In some cases certification of the

class has been granted for purposes of liability only, reserving the right to reassess the possibility

of subclasses for that purpose at a later date”).

The latest word on the certification of construction defect class actions endorsed the use

of subclasses. In Hicks v. Kaufman & Broad, the Court of Appeal stated:

There are several ways in which the trial court could certify a class without

waiving the right of class members with property damage to recover for that

damage. For example, the trial court could limit the class issues to liability for

breach of warranty vel non and allow each class member to use that judgment as

the basis for an individual action to recover damages for the breach. Alternatively,

the court could divide the class into subclasses: those asserting only economic

damages and those asserting economic damages and property damage. We do not

take it as a given that the latter subclass would number "thousands" of

homeowners. It might turn out the subclass of homeowners with property damage

is too small to justify class treatment, or its size may be manageable. Another

possibility is for the trial court to use the class notice procedure to give those class

members with property damage the opportunity to opt out of the class. This was

the solution adopted by the court in Anthony when faced with the same argument

raised by SI in the present case.

Hicks v. Kaufman & Broad, 89 Cal. App. 4th 908, 925-926 (2001) (footnotes omitted).

12. Statute of Limitations Tolling in Class Actions.

Limitations periods may be tolled during the time a class lawsuit is filed and the class is

ultimately certified, not certified, or de-certified. Becker v. McMillin Construction Co., 226 Cal.

App. 3d 1493 (1991); Jolly v. Eli Lilly & Co., 44 Cal. 3d 1103, 1118 (1988). See also American

Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S. Ct. 756, 38 L. Ed. 2d 713 (1974) and its

progeny.

The justification for tolling is that it avoids unnecessary filing of repetitious lawsuits,

papers and motions. Tolling advances efficient and economical litigation, and it applies even if

the potential class members did not rely upon the class action, as well as potential class members

who were not aware that such a class action lawsuit existed. Jolly v. Eli Lilly & Co., 44 Cal. 3d

1103, 1121-1122 (1988); American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S. Ct.

756, 38 L. Ed. 2d 713 (1974). Courts should, however, consider the competing policy of notice

to the defendant of the nature of the action. Becker v. McMillin Construction Co., 226 Cal. App.

3d 1493 (1991); Jolly v. Eli Lilly & Co., 44 Cal. 3d 1103 (1988); American Pipe & Construction

Co. v. Utah, 414 U.S. 538, 94 S. Ct. 756, 38 L. Ed. 2d 713 (1974).

When filing a class action, counsel should state the nature of the claim in detail to put the

defendant on notice of the claim to enhance the likelihood of statute tolling.

13. Public Policy Supports Class Certification and Doubts Should Be Resolved in Favor

of Class Certification. Courts are Encouraged to Creatively Employ the Class

Action Device.

The California Supreme Court has directed lower courts to utilize the class action device

to fashion "an effective and inclusive group remedy." Richmond v. Dart Industries, Inc., 29 Cal.

3d 469, 478 (1981); Vasquez v. Superior Court, 4 Cal. 3d 800, 807 (1971).

Because California law and policy favor the fullest and most flexible use of the class

action procedure, any doubt as to the propriety of class certification should be resolved in favor

of certification, subject to later modification is issues arise. Vasquez v. Superior Court, 4 Cal.3d

800, 821 (1971). See Richmond v. Dart Industries, Inc., 29 Cal.3d 469, 473-475 (1981); La Sala

v. American Sav. & Loan Association., 5 Cal.3d 864, 875 (1971). See also Newberg § 7.17-7.22.

In a series of decisions over the past 25 years, the California Supreme Court consistently

has removed barriers to the utilization of class action procedures, and California has been among

the most innovative jurisdictions in its acceptance and use of the representative suit. See, e.g.,

State of California v. Levi Strauss & Co., 41 Cal. 3d 460 (1986); Richmond v. Dart Industries,

Inc., 29 Cal. 3d 469, 473-475 (1981); Linder v. Thrifty Oil Co., 23 Cal. 4th 429, 440 (2000) (“we

remain mindful that if the class action is to prove a useful tool to the litigants and the court, trial

courts must be accorded the flexibility "to adopt innovative procedures, which will be fair to the

litigants and expedient in serving the judicial process"); Vasquez v. Superior Court, 4 Cal. 3d

800, 821 (1971); La Sala v. American Sav. & Loan Association., 5 Cal.3d 864, 875 (1971);

Occidental Land v. Superior Court of Orange County, 18 Cal. 3d 355, 360 (1976); Daar v.

Yellow Cab Co., 67 Cal. 2d 695 (1967).