California court rejects class certification in inflatable pool case against Rite Aid

By David Hutton | Dec 28, 2017

SAN FRANCISCO (Legal Newsline) – The California Court of Appeal 1st Appellate District, Division Four has let the air out of class certification of a lawsuit filed against Thrifty Payless Inc. over allegations that a swimming pool purchased at a Rite Aid store did not match the pictures on the packaging.

Associate Justice Jon B. Streeter wrote the Dec. 4 opinion for the appeals court, with Presiding Justice Ignazio John Ruvolo and Justice Maria Rivera concurring.

According to the opinion, James A. Noel filed the complaint after he purchased an inflatable swimming pool on July 4, 2013, at a neighborhood Rite Aid retailer for $59. Thrifty Payless does business as Rite Aid.

Noel claimed the pool turned out to be much smaller than the pool pictured on the package. He claimed false promotion and made similar claims on behalf of 20,000 proposed plaintiffs.

For its part, Thrifty and Rite Aid alleged that Noel didn’t properly inflate the pool.

Moreover, the box prominently displayed the pool’s dimensions as 8 feet by 25 inches. In his complaint, Noel does not contend the dimensions were inaccurate. When Noel took the pool home he said it could only accommodate one adult and four small children. The pool on the picture showed two adults and three children.

Noel then filed a motion for class certification before conducting sufficient discovery to meet its burden of demonstrating that they could identify members of the putative class, the opinion states.

The Marin County Superior Court refused to certify a class on Noel’s claim because it ruled “questions of law or fact did not predominate over individual questions of reliance and causation,” the opinion states.

Noel filed an appeal to the California Court of Appeal 1st Appellate District, Division Four, claiming that the lower court was incorrect in the legal standards it applied. He also alleged that the court abused its discretion when it refused to grant him a continuance so that he could further develop his case to support his motion.

“We conclude the court did not abuse its discretion or misapply the law in denying class certification,” Streeter wrote in the Dec. 4 opinion. “Rather, the underlying problem with the class certification motion appears to be attributable to class counsel’s premature filing of the motion without first conducting sufficient discovery to meet its burden of demonstrating there are means of identifying members of the putative class so that they might be notified of the pendency of the litigation.”

According to Streeter’s opinion, the failure by Noel could jeopardize the due process rights of absent class members.

“Rather than relieve the class representative of the obligation to make such a showing, as Noel’s counsel seems to suggest, we affirm the trial court’s denial of the class certification motion,” he wrote.

The appeals court affirmed the lower court’s order denying class certification and denying a continuance for the taking of further discovery. Rite Aid also is entitled to recover its costs.

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