Noel v. Thrifty Payless, Inc., No. A143026 (D1d4 Dec. 4, 2017)
Plaintiff brought a consumer class action because the picture on the box of an inflatable pool he bought at Rite Aid showed a pool that was bigger than the actual pool in the box, even though the dimensions were correctly listed. Having taken almost no discovery, plaintiff nonetheless moved to certify a class.
To do that, Code of Civil Procedure § 632 specifically requires that the class members must be ascertainable. But in a consumer case, it can be difficult to figure out who purchased a particular retail good. Rite Aid doesn’t take the names and addresses of its customers and keep a list of what they buy. Although with some legwork there’s often ways to figure that kind of thing out. But a plaintiff needs to do that work so it can present the court with a plan with how the class members are going to be identified and notified when he moves to certify a class. Plaintiff didn’t do that here—he barely took any discovery at all—so the court denied his motion. Correctly.
Plaintiff also says the court should have given him a continuance to let him beef up his evidence on ascertainability. But nothing forced Plaintiff to file his certification motion when he did. And he was also free to withdraw and fix his motion at any time prior to the hearing—even after the opposition pointed out the ascertainability issues. So when Plaintiff decided to proceed to the merits of the motion, he took the risk that it would be denied, which it correctly was.
Reversed.
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