Filed 6/7/13 Thompson v. Automobile Club of Southern California CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


STEPHEN TROY THOMPSON,

     Plaintiff and Appellant,                                          G046759

         v.                                                            (Super. Ct. No. 30-2009-00285190)

AUTOMOBILE CLUB OF SOUTHERN                                            OPINION
CALIFORNIA,

     Defendant and Respondent.



                   Appeal from an order of the Superior Court of Orange County, Kim Garlin
Dunning, Judge. Affirmed.
                   Caldwell Leslie & Proctor, Robyn C. Crowther, Eric S. Pettit; Meiselman,
Denlea, Packman, Berg & Eberz, Jeffrey I. Carton, Michael A. Berg and Todd S. Garber
for Plaintiff and Appellant.
                   Manatt, Phelps & Phillips, Phillip R. Kaplan, Benjamin G. Shatz, Adrianne
E. Marshack; John K. Beckley for Defendant and Respondent.
                                          *                  *                  *
              Plaintiff Stephen Thompson sued the Automobile Club of Southern
California (the Auto Club) in this putative class action. He challenges the Auto Club‟s
policies relating to renewal, specifically, its practice of “backdating” late renewals to the
member‟s original expiration date if the renewal occurs within 95 days. He claims this
practice results in late-renewing members receiving less than a full year of services. The
Auto Club counters that the 95-day period is a “grace period” and that members are
generally permitted to continue receiving services, particularly during the first 31 days.
This practice, the Auto Club further argues, prevents the member from incurring a $20
fee to start a new membership.
              Thompson moved for class certification, and the trial court denied the
motion. The court concluded, among other things, that the proposed class was overbroad,
lacked commonality, and that Thompson‟s claims and defenses were not typical of the
class. Further, it ruled that a class action is not a superior method of adjudication.
Thompson appeals the trial court‟s decision, arguing the court‟s decision was
unsupported by substantial evidence, contrary to established law, and was premised on
the trial court‟s misunderstanding of the plaintiff‟s claims. The Auto Club argues the
class certification motion was properly denied for the reasons stated by the trial court.
              Based on the deferential standard of review appropriate to a motion for
class certification, we find no error. Contrary to Thompson‟s arguments, the court‟s
decision reflects that it understood the facts and used appropriate criteria for its decision.
Therefore, there was no abuse of discretion, and we affirm.
                                               I
                                           FACTS
A. Background
              Defendant the Auto Club is a regional affiliate of AAA, an association of
automobile clubs with more than 50 million members in the United States. The Auto
Club is a non-profit, mutual benefit corporation and has more than six million members.

                                               2
Its services include emergency roadside assistance, a travel agency, DMV transactions,
and other benefits.
              The Auto Club‟s membership dues are billed and collected annually. Since
2005, when joining for the first time, or when rejoining after a cancelled membership,
members are generally charged a $20 enrollment fee. Upon joining, the member receives
various documents, including a membership card showing the member‟s expiration date,
and a copy of the Auto Club‟s bylaws. Prior to expiration of membership each year, the
Auto Club mails the member several renewal notices, which vary depending on the
member‟s level of service and billing plan. Over 100 different versions of notices exist,
and they are changed periodically. The Auto Club also communicates with members
regarding renewals by phone.
              How the Auto Club handles membership renewals is the subject of this
case. According to the Auto Club, members who fail to timely renew a membership
“enjoy a 95-day grace period from the expiration date to renew.” Thus, if the member
renews at any point during the 95-day period, the Auto Club treats the renewal as
retroactive to the date of the expiration. For example, if a member joins on January 1,
2011, the membership expires January 1, 2012. If the member renews at any time up
until April 6, 2012, the renewal dates back to January 1. After the 95th day, the
member‟s file is closed, and any new membership is subject to the $20 new membership
fee.
              According to the Auto Club, during the grace period, a delinquent member
remains eligible to receive services. All services are available during the first 30 days
after the failure to renew, and from the 31st to 95th day, whether services are provided is
a matter of discretion on the part of the Auto Club agent assisting the member. Exercise
of that discretion depends upon various factors, including the length of the membership,
the exigency of the circumstances, and the agent‟s belief regarding the member‟s intent to
renew. If a delinquent member receives roadside assistance and subsequently renews, the

                                             3
service call is treated as one that occurred during the membership period. If the member
does not renew, any such services are billed.
              Plaintiff Stephen Thompson began his current membership with the Auto
Club in December 2002. His membership expiration date since that time has been
December 6 of each year. Between 2005 and 2008, Thompson renewed his membership
late, although he intended to renew each year.
              The complaint in this action discusses only the renewals for the years 2006
and 2007. There was, however, evidence in the record regarding his 2008 renewal.
Shortly after his membership expired in 2008, he received a mailed notice from the Auto
Club informing him that his membership had not been renewed. The notice stated: “We
will still continue to provide you with Roadside Assistance service for 30 days after your
expiration date. However, if we do not receive your payment, we will be required to bill
you for an amount that covers our cost of providing you the service during that 30-day
period. If you renew now, all Roadside Assistance calls during the unpaid period will be
counted toward your four free calls.”
              In early 2009, Thompson renewed his membership by phone. At the end of
the call, he specifically asked the representative if his membership started “right now and
goes for 12 months forward.” Thompson was informed that the membership could only
be started from that date if he paid a $20 new membership fee, otherwise it went back to
the date of the expiration. Thompson felt that was not fair, but he chose not to begin a
new membership.


B. The Lawsuit
              In July 2009, Thompson filed the instant lawsuit as a purported class action,
alleging claims for breach of contract, unjust enrichment, and violations of the unfair
competition law (Bus. & Prof. Code, § 17200 et seq.) (the UCL) and the Consumer Legal
Remedies Act (Civ. Code, § 1750 et seq.) (the CLRA). He also sought injunctive relief.

                                             4
After a demurrer was sustained, the injunctive relief cause of action was dropped in the
amended complaint. In sum, Thompson alleged that the Auto Club‟s renewal policy was
depriving late-renewing members of receiving 12 months of benefits, that members were
not informed of the policy, and that late-renewing members were being monetarily
damaged.
              Discovery proceeded, and in November 2011, Thompson moved for class
certification. He proposed to define the class as: “All persons who, at any time on or
after July 17, 2005, purchased and paid for a new term of [Auto Club] membership after
their prior membership term expired, and whose new membership term was deemed by
[Auto Club] to have begun on or about the prior expiration date.” The Auto Club filed its
own motion to deny certification. The parties filed their respective oppositions and
replies in due course. Both sides also submitted evidence, which we will discuss in more
detail below, to support their respective claims. Evidentiary objections were also filed.
              After a hearing, the court denied the motion and directed the Auto Club to
prepare an order. Thompson objected to the Auto Club‟s proposed order and submitted
his own, but the court signed the Auto Club‟s order. The court concluded that Thompson
had failed to present sufficient evidence to demonstrate a well-defined community of
interest. “Plaintiff has failed to support his allegation that the Auto Club routinely denies
members who renew late a full twelve months of benefits by „backdating‟ membership
renewals, or that this issue could be litigated on a class-wide basis. By contrast, the Auto
Club has demonstrated that individual issues would predominate in determining the
claims alleged in this action, that the proposed class is overbroad, that Plaintiff is not
typical of the class he seeks to represent, and that a class action would not be a superior
method of litigating these claims.” Given the court‟s ruling, it was unnecessary to decide
the Auto Club‟s motion to deny certification, but the court had considered all the
evidence and briefs on each motion. The court also overruled all evidentiary objections.
Thompson now appeals the court‟s order.

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                                               II
                                        DISCUSSION
A. Standard of Review
              With respect to the factual issues surrounding class certification, we afford
the trial court “„great discretion in granting or denying certification.‟” (In re Tobacco II
Cases (2009) 46 Cal.4th 298, 311.) The trial court‟s ruling will be reversed only if a
“„manifest abuse of discretion‟” is present. (Brinker Restaurant Corp. v. Superior Court
(2012) 53 Cal.4th 1004, 1022.) “„A certification order generally will not be disturbed
unless (1) it is unsupported by substantial evidence, (2) it rests on improper criteria, or (3)
it rests on erroneous legal assumptions. [Citations.]‟ [Citations.]” (Ibid.)
              “We must „[p]resum[e] in favor of the certification order . . . the existence
of every fact the trial court could reasonably deduce from the record . . . .‟ [Citation.]”
(Brinker Restaurant Corp. v. Superior Court, supra, 53 Cal.4th at p. 1022.) “„Where a
certification order turns on inferences to be drawn from the facts, “„the reviewing court
has no authority to substitute its decision for that of the trial court.‟”‟ [Citation.]”
(Davis-Miller v. Automobile Club of Southern California (2011) 201 Cal.App.4th 106,
120.) “[B]ecause group action also has the potential to create injustice, trial courts are
required to „“carefully weigh respective benefits and burdens and to allow maintenance
of the class action only where substantial benefits accrue both to litigants and the
courts.”‟ [Citations.]” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.)
              We must also examine the trial court‟s stated reasons for denying class
certification. (Linder v. Thrifty Oil Co., supra, 23 Cal.4th at p. 436.) “Ordinarily,
appellate review is not concerned with the trial court‟s reasoning but only with whether
the result was correct or incorrect. [Citation.] But on appeal from the denial of class
certification, we review the reasons given by the trial court for denial of class
certification, and ignore any unexpressed grounds that might support denial. [Citation.]
We may not reverse, however, simply because some of the court‟s reasoning was faulty,

                                               6
so long as any of the stated reasons are sufficient to justify the order. [Citation.]”
(Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 843-844.)
Any valid, pertinent reason will be sufficient to uphold the trial court‟s order. (Sav-On
Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326-327.)
              It is worth highlighting the proper role of the appellate court because
Thompson‟s briefs rely heavily on federal trial court rulings, including several that
involve similar cases against other AAA affiliates. These mostly unpublished and out-of-
state orders obviously have no binding precedential effect on this court. Further, their
ability to provide useful guidance1 is somewhat limited because we do not stand in the
trial court‟s place. Our review is “narrowly circumscribed.” (Brinker Restaurant Corp.
v. Superior Court, supra, 53 Cal.4th 1004 at p. 1022.) “Our task on appeal is not to
determine in the first instance whether the requested class is appropriate but rather
whether the trial court has abused its discretion in denying certification.” (Osborne v.
Subaru of America, Inc. (1988) 198 Cal.App.3d 646, 654.)
              Thus, each of the trial court decisions Thompson cites may be correct, and
if we were reviewing them, they might well be affirmed. But it does not necessarily
follow that because the trial court in this case viewed the facts or legal issues differently
than another trial court, an abuse of discretion occurred. The “great discretion” (In re
Tobacco II Cases, supra, 46 Cal.4th at p. 311) trial courts are accorded in the matter of
class certification almost guarantees that such differences of opinion between trial courts
will occur and are entirely permissible. The questions before us are limited to whether
the decision was supported by substantial evidence, and whether the decision was based
on improper criteria or erroneous legal assumptions. (Brinker Restaurant Corp. v.
Superior Court, supra, 53 Cal.4th 1004 at p. 1022.)


1 “„“California courts may look to federal authority for guidance on matters involving
class action procedures.” [Citations.]‟ [Citation.]” (Cellphone Termination Fee Cases
(2010) 186 Cal.App.4th 1380, 1392, fn. 18.)

                                              7
B. Relevant Statutory Frameworks
              Thompson‟s complaint alleges causes of action for breach of contract,
unjust enrichment, and violations of the UCL and CLRA. While the first three claims are
analyzed under the same statutory framework for determining whether a class action is
appropriate, the CLRA sets forth a slightly different standard.
              Code of Civil Procedure section 382 sets forth the general requirements for
certifying class actions. Thus, it applies to Thompson‟s common law claims, and also to
class actions under the UCL. (In re Tobacco II Cases, supra, 46 Cal.4th at pp. 312-313.)
A class action is authorized when “„the question is one of 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.‟” The party seeking class certification must establish the existence
of both an ascertainable class and a well-defined community of interest among the class
members. (Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906, 913;
Linder v. Thrifty Oil Co., supra, 23 Cal.4th at p. 435; Richmond v. Dart Industries, Inc.
(1981) 29 Cal.3d 462, 470.) The community of interest requirement involves three
factors: “(1) predominant common questions of law or fact; (2) class representatives with
claims or defenses typical of the class; and (3) class representatives who can adequately
represent the class.” (Richmond v. Dart Industries, Inc., supra, 29 Cal.3d at p. 470.) An
additional criteria of the “superiority” of the class action procedure is also sometimes
considered. (Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 332.)
              The CLRA enables a consumer to bring a class action on behalf of himself
or herself and other consumers similarly situated if the consumer has suffered “any
damage” from the use of any of 23 enumerated acts or practices. (Civ. Code., §§ 1780,
subd. (a), 1781, subd. (a).) The CLRA has its own class action requirements pursuant to
Civil Code section 1781, subdivision (b): 1) the impracticability of bringing all members
of the class before the court; (2) questions of law or fact common to the class are
substantially similar and predominate over the questions affecting the individual

                                             8
members; (3) the claims of the class representative are typical of the class; (4) the class
representatives will fairly and adequately protect the interests of the class. (Civ. Code, §
1781, subd. (b).)
              The statutory requirements are substantial similar.2 Each requires the
potential class to be sufficiently numerous as to make individual adjudication impractical,
although the CLRA does not explicitly require an ascertainable class. Code of Civil
Procedure section 382‟s “well-defined community of interest” requirements are, for all
practical purposes, the same as the CLRA‟s final three requirements: the predominance
of common issues of law or fact, the typicality of the class representative‟s claims, and
the adequacy of the class representative. The questions of a sufficiently large class and
the representative‟s adequacy are not at issue here. We therefore analyze the remaining
requirements of the statutes simultaneously, with the exception of the “superiority”
question, which applies only under Code of Civil Procedure section 382.


C. Ascertainable Class
              Whether a class is “ascertainable” within the meaning of section 382 “is
determined by examining (1) the class definition, (2) the size of the class, and (3) the
means available for identifying the class members. [Citations.]” (Reyes v. Board of
Supervisors (1987) 196 Cal.App.3d 1263, 1271.) “„“Class members are „ascertainable‟
where they may be readily identified without unreasonable expense or time by reference
to official records. [Citation.]”‟ [Citation.] In determining whether a class is
ascertainable, the trial court examines the class definition, the size of the class and the


2One key difference between Code of Civil Procedure section 382 and the CLRA is that
under the CLRA, if all the requirements are satisfied, the court must certify the class.
(Civ. Code, § 1781, subd. (b); see Hogya v. Superior Court (1977) 75 Cal.App.3d 122,
135-136.) “The trial court, however, has „considerable latitude‟ under those four
conditions in deciding whether a class action is proper. [Citation.]” (Steroid Hormone
Product Cases (2010) 181 Cal.App.4th 145, 153.)

                                               9
means of identifying class members. [Citation.]” (Lee v. Dynamex, Inc. (2008) 166
Cal.App.4th 1325, 1334.)
              Ascertainability also addresses the breadth of the class. “Courts have
recognized that „class certification can be denied for lack of ascertainability when the
proposed definition is overbroad and the plaintiff offers no means by which only those
class members who have claims can be identified from those who should not be included
in the class.‟ [Citation.]” (Sevidal v. Target Corp. (2010) 189 Cal.App.4th 905, 921.)
              The court‟s order denying certification noted the following with respect to
the ascertainability of the class: “The putative class is not ascertainable on any of
Plaintiff‟s causes of action. The Auto Club has presented evidence demonstrating that
the proposed class is substantially overbroad in that it contains Auto Club members who
would not be entitled to relief from the Auto Club on any of Plaintiff‟s causes of action
because the members (i) received services during their delinquency . . . (ii) had the Auto
Club‟s renewal policy explicitly disclosed to them . . . and/or (iii) were not injured by the
Auto Club‟s renewal practices because they were economically better off under the Auto
Club‟s system of renewal than they would have been if they had begun new memberships
on the date of payment and paid the $20 new membership fee . . . .” The court cited to
evidence on each point.
              Thompson argues the court‟s ruling on this point is flawed because it
misapprehends the nature of his claims and “flies in the face of the evidence and violates
established law, which holds that a corporate defendant‟s shoddy record-keeping does not
prevent class certification.” In Thompson‟s view, determining who the class members
are is simple — he believes that any member who renewed after the prior year‟s
expiration date should be a member, regardless of whether the member received services
during the delinquency period, received a disclosure regarding how the Auto Club
handled renewals, or paid less than they would have by beginning a new membership and
incurring the $20 new membership fee. Such members are ascertainable and relevant

                                             10
information was produced by the Auto Club. It is unclear, however, under what theory
many of these individuals would be eligible to recover.
              With respect to breach of contract, the amended complaint alleges the Auto
Club “breached the contract . . . by providing Plaintiff with less than 12 months of
membership benefits . . . in exchange for his payment of the full annual membership fee.”
The complaint also alleges damages from this breach. Thompson also alleges that
providing less than 12 months of membership benefits and charging membership fees for
time periods where no membership privileges are provided, as well as failing to disclose
its renewal practices, is unlawful, unfair or fraudulent under the UCL. Essentially the
same factual allegations are made regarding the CLRA and unjust enrichment causes of
action.
              If putative class members either received benefits during the delinquency
period, were not damaged as a result of the renewal policy, or renewed after the Auto
Club‟s membership policy was disclosed, their ability to recover is called into serious
question. If class members received benefits during the delinquency period or they were
told about the Auto Club‟s renewal practices, they cannot maintain a cause of action
under the UCL. If they were not economically damaged, they cannot recover on a breach
of contract, under the CLRA, or through an unjust enrichment claim. (See Civ. Code.,
§ 1780, subd. (a); Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222
Cal.App.3d 1371, 1388; Lectrodryer v. SeoulBank (2000) 77 Cal.App.4th 723, 726.)
              There was substantial evidence that such conditions apply to a significant
part of the putative class. The Auto Club produced a spreadsheet of over 6,000 pages of
records showing members who received benefits during the delinquency period during
the past year. Evidence was also presented that between 67 and 80 percent of delinquent
members renew during the first 30 days after expiration. For a member to incur damage,
the supposed lost value of their membership would have to exceed $20, the amount the
member would be required to begin a new membership rather than a renewal. The

                                            11
average membership renewal, however, is $87. Thus, the monetary value of an average
Auto Club membership (87 divided by 365) is 24 cents per day. Only individuals paying
the average membership fee who renewed after the 84th day of the 95-day delinquency
period would have damages exceeding $20. To exceed $20 within the 30-day period
during which most members renewed, their membership renewal would have been $243
or more. Less than 10 percent of Auto Club members pay such fees.
              With respect to disclosure, the Auto Club also produced evidence that it
trains customer service agents to discuss renewal practices when appropriate. There was
also evidence, in the form of customer declarations, that agents actually do so. Agents do
not generally make notes on the customer‟s file when calls are received regarding routine
issues. Further, Thompson himself testified that during his 2009 renewal call, the agent
discussed the Auto Club‟s renewal practices with him. Thus, it was reasonable for the
court to infer that at least some percentage of the putative class knew about the renewal
practice.
              These facts present significant overbreadth and ascertainability problems.
It is clear from the evidence that Thompson‟s proposed class is not only slightly
overinclusive, but substantially so. The proposed class includes everyone who renewed
late after July 17, 2005, regardless of any other facts. Given that a significant number of
these people would have no right to recover, the class is overbroad.
              Further, there is no evidence that the Auto Club can ascertain which
putative class members to whom the following does not apply: 1) they received no
services during their delinquency periods, 2) they renewed on a date where renewing
their membership was more expensive, on a pro rata basis, than paying the $20 new
membership fee, and 3) they were unaware of the renewal policy.
              Thompson claims this amounts to “shoddy record-keeping” but he points to
no authority that would require the Auto Club to keep such records. Thus, his claim that
the trial court applied the wrong legal standard on this point is without merit. The

                                            12
evidence demonstrates the trial court properly exercised its discretion when it concluded
the proposed class was not ascertainable.


D. Predominance of Common Questions of Law and Fact
              “The „ultimate question‟ the element of predominance presents is whether
„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.‟ [Citations.] The answer
hinges on „whether the theory of recovery advanced by the proponents of certification is,
as an analytical matter, likely to prove amenable to class treatment.‟ [Citation.] A court
must examine the allegations of the complaint and supporting declarations [citation] and
consider whether the legal and factual issues they present are such that their resolution in
a single class proceeding would be both desirable and feasible. „As a general rule if the
defendant‟s liability can be determined by facts common to all members of the class, a
class will be certified even if the members must individually prove their damages.‟
[Citations.] (Brinker Restaurant Corp. v. Superior Court, supra, 53 Cal.4th at pp. 1021-
1022, fn.omitted.) “Predominance is a factual question; accordingly, the trial court‟s
finding that common issues predominate generally is reviewed for substantial evidence.
[Citation.]” (Id. at p. 1022.)
              The trial court found that individual issues predominate: “(A) Individual
issues predominate regarding whether a putative class member is entitled to recover on
any of Plaintiff‟s causes of action. This is because, as stated above, there were members
who suffered no injury because they (i) received services during their delinquency, (ii)
had the Auto Club‟s renewal policy explicitly disclosed to them, and/or (iii) were
economically better off under the Auto Club‟s system of renewal than they would have
been if they had begun new memberships on the date of payment and paid the $20 new
enrollment fee. Determining whether a member falls into any of these categories and

                                             13
would therefore not be entitled to recover from the Auto Club on any of Plaintiff's
theories of liability, can only be done on a case-by-case basis.” The court went on to
explain that essentially the same reasons applied to each cause of action.
              These are essentially the same issues that were highlighted during our
ascertainability discussion above, but they are equally important here. Thompson argues
that because the same contract terms and renewal policy applied to all members, common
issues predominate. He also informs us, citing an array of district court decisions, that an
“overwhelming” majority of federal court cases have certified classes based on standard
contracts. Thus, he asserts class treatment was appropriate for the breach of contract
claim.
              Thompson argues that determining the issues of breach and damages can be
decided on a classwide basis, but accepting that argument depends on accepting his
theory of the case — that any expiration less than 365 days after a renewal was a breach
of contract and necessarily caused damages. But the facts appear to belie this. There was
evidence presented to the trial court on a number of relevant issues, including the
availability of services to delinquent members and the use of those services. There was
also evidence, as we discussed above, that many members would have paid more if they
had spent the additional $20 to start a new membership from the date of payment and
issues regarding whether the renewal policy was disclosed. These are not merely issues
relating to the measure of damages, but as to whether any possible recovery exists. Thus,
the mere existence of a form contract is insufficient to determine that common issues
predominate when the questions of breach and damage are essentially individual.
(Wilens v. TD Waterhouse Group, Inc. (2003) 120 Cal.App.4th 746, 756.)
              Such individual assessments would clearly be required here, and would
undermine any benefits of class treatment. Proof with respect to each individual class
member would be needed to determine what benefits, if any, were received during the
delinquency period, whether the renewal practice saved each class member money over

                                             14
paying the $20 new member fee, and whether the member was aware of the renewal
policy. The same issues apply to all of Thompson‟s claims, including whether the
renewal practices were unfair or fraudulent under the UCL, caused damage under the
CLRA,3 or resulted in the Auto Club‟s unjust enrichment. Thus, we find the trial court
had substantial evidence from which it could conclude that individual issues
predominated over common ones.


E. Typicality of the Claims

              Part of the “community of interest” requirement for class certification is a
showing that the plaintiff‟s claims are typical of the class. (Lockheed Martin Corp. v.
Superior Court (2003) 29 Cal.4th 1096, 1104.) The trial court held: “Plaintiff is not
typical of the class he purports to represent. The Auto Club has demonstrated that
Plaintiff is not similarly situated to putative class members because the Auto Club‟s
renewal practice was explicitly disclosed to him and he elected to renew his membership
pursuant to the practice rather than begin a new membership on his payment date. . . .
He is also not typical of the purported class because Plaintiff‟s decision to renew his
membership after being explicitly told about the Auto Club‟s renewal practice (i.e. not to
alter his position and renew as he had done on three prior occasions when he claims he
was unaware of the practice) demonstrates that this information was not material to him,
as Plaintiff alleges it would be to the reasonable class member.”
              This issue does not seem to be as important here as the questions of
ascertainability and predominance, but in any event, Thompson has failed to show an
abuse of discretion. He focuses on his 2005 (for the 2006 year) and 2007 renewals, for
which he alleges he received no disclosure, selectively ignoring the year he did receive
such a disclosure and chose to proceed anyway. But as the trial court noted, this
seriously calls in doubt whether the disclosure was material or would have been material

3Because actual damages are required under the CLRA (Civ. Code, § 1780, subd. (a)) we
need not examine the additional issues of causation and reliance.

                                             15
in the earlier years. This is substantial evidence from which the court could conclude
Thompson‟s claims were not typical, and we find no abuse of discretion.


F. Superiority of the Class Action Procedure
               The superiority criterion requires the moving party to establish “„by a
preponderance of the evidence that the class action proceeding is superior to alternate
means for a fair and efficient adjudication of the litigation.‟” (Sav-On Drug Stores, Inc.
v. Superior Court, supra, 34 Cal.4th at p. 332, italics added.) The trial court concluded
that “A class action is not a superior means to adjudicate this case. The Auto Club has
demonstrated that individual inquiries would predominate on the question of whether the
renewal practice was adequately disclosed to each class member; whether each class
member sought and received service during the class period; whether individual class
members who did not seek services during the class period were nonetheless aware that
services were available; and whether individual class members suffered any injury as
result of the Auto Club‟s renewal policy. The predominance of these individual issues
makes the class action mechanism unmanageable in this case. Although the size of each
individual‟s claim is small, the burdens imposed in adjudicating those claims on a class
basis do not support the finding that a class action is warranted here.”
               We need not belabor this point — even if Thompson could establish the
superiority of the class action method, he failed to meet the statutory requirements for
certification under Code of Civil Procedure section 382 and the CLRA. Superiority alone
is insufficient, and the court therefore properly exercised its discretion when it denied
class certification.




                                             16
                                          III
                                   DISPOSITION
            The order is affirmed. The Auto Club is entitled to its costs on appeal.




                                                MOORE, J.

WE CONCUR:



O‟LEARY, P. J.



IKOLA, J.




                                          17
