No Class for You...

Kohler Co. v. Superior Court, No. B288935 (D2d Nov. 11, 2018)

This one makes my head hurt. 

The Right to Repair Act has a chapter devoted to pre-litigation dispute resolution requirements that apply to residential construction defect litigation. These include a provision that purports to address what happens when construction defect claims are combined with other claims that are not covered by the Act.
It’s Civil Code § 931. Here’s the text:

If a claim combines causes of action or damages not covered by this part, including, without limitation, personal injuries, class actions, other statutory remedies, or fraud-based claims, the claimed unmet standards shall be administered according to this part, although evidence of the property in its unrepaired condition may be introduced to support the respective elements of any such cause of action. As to any fraud-based claim, if the fact that the property has been repaired under this chapter is deemed admissible, the trier of fact shall be informed that the repair was not voluntarily accepted by the homeowner. As to any class action claims that address solely the incorporation of a defective component into a residence, the named and unnamed class members need not comply with this chapter.

The Court reads this to mean that (1) you can’t bring a class action that alleges violations of the Act; (2) except that you can bring a class action based solely on the incorporation of a defective component into a residence, but only when that component is not entirely manufactured offsite.

I’m not really sure how the court gets there. This statute is just saying how the prelitigation procedures apply to mixed actions. There’s a whole other chapter in the Act that deals with the applicable procedures during a litigation under the Act. It would be kind of zany for the Legislature to bury a pretty important substantive limitation in a part of the Act addressed to a different topic.

No doubt, the Legislature was intending list examples of stuff that’s not addressed by the Act—stuff like fraud and personal injury claims. And it includes “class actions” in that list. But to read that reference to say, by negative implication, that the Legislature is saying “a class action can’t be brought under the Act” feels a little overdetermined. It seems instead like the reference to “class actions” is meant to address class actions that are brought under law other than the Right to Repair Act, just like the other stuff on the list. Edjusdem generis.

Of course, it’s possible or even likely that the author of the statute didn’t really conceive of a Right to Repair class action as a thing we’re going to do. Because on the face of § 931, the pre-litigation procedures would apply to all the class members’ claims under the Act. Those procedures—stuff like the right to offer a repair, mediation, cash offers in lieu, documentation of repair work, etc.—don’t really lend themselves to class treatment. Nor does it fix the problem to have a named plaintiff who followed the procedures when the class didn’t. That class couldn’t be certified because its members would be subject to defenses that the lead plaintiff isn’t—there’s no typicality. So while I don’t really agree that § 931 says “no Right to Repair class actions,” that’s likely a practical effect of the structure of Act in almost all conceivable cases anyway.

Writ granted.