Noel v. Thrifty Payless, Inc.

IN THE SUPREME COURT OF

CALIFORNIA

DIANA NIEVES NOEL,

Plaintiff and Appellant,

v.

THRIFTY PAYLESS, INC.,

Defendant and Respondent.

S246490

First Appellate District, Division Four

A143026

Marin County Superior Court

CIV1304712

July 29, 2019

Chief Justice Cantil-Sakauye authored the opinion of the

Court, in which Justices Chin, Corrigan, Liu, Cuéllar, Kruger,

and Groban concurred.

NOEL v. THRIFTY PAYLESS, INC.

S246490

Opinion of the Court by Cantil-Sakauye, C. J.

This case is a putative class action brought on behalf of

retail purchasers of an inflatable outdoor pool sold in packaging

that allegedly misled buyers about the pool’s size. We must

decide whether the trial court abused its discretion when it

denied the representative plaintiff’s motion for class

certification on the basis that he had not supplied evidence

showing how class members might be individually identified

when the time came to do so. The Court of Appeal upheld this

ruling. It reasoned that this evidence was necessary to ensure

that proper notice would be given to the class, and that without

it, the trial court could appropriately conclude that plaintiff had

not satisfied the ascertainability requirement for class

certification.

We conclude that the trial court erred in demanding that

plaintiff offer such evidence to satisfy the ascertainability

requirement. Plaintiff’s proposed class definition articulates an

ascertainable class, in that it defines the class “in terms of

objective characteristics and common transactional facts” that

make “the ultimate identification of class members possible

when that identification becomes necessary.” (Hicks v.

Kaufman & Broad Home Corp. (2001) 89 Cal.App.4th 908, 915

(Hicks).) As we will explain, the ascertainability requirement

does not incorporate the additional evidentiary burden that the

courts below would have imposed. We therefore reverse the

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Opinion of the Court by Cantil-Sakauye, C. J.

judgment of the Court of Appeal and remand the matter for

further proceedings consistent with our opinion.

I. BACKGROUND

In November 2013, plaintiff James Noel1 filed a verified

complaint in Marin County Superior Court, alleging claims

under the unfair competition law (Bus. & Prof. Code, § 17200 et

seq.) (UCL), the false advertising law (Bus. & Prof. Code,

§ 17500 et seq.) (FAL), and the Consumers Legal Remedies Act

(Civ. Code, § 1750 et seq.) (CLRA).

These claims arose out of Noel’s purchase of an inflatable

outdoor pool marketed as Kids Stuff Ready Set Pool 8FT X 25IN

(hereinafter Ready Set Pool) from a Rite Aid drugstore in San

Rafael.2 Noel alleges that his purchase of the pool was

influenced by a photograph that appears on its packaging. This

photo, as it appears within the complaint, indicates that the pool

can handily accommodate several adults when inflated and

filled:

1

James Noel died while this action was pending before the

Court of Appeal and has been replaced as plaintiff by his widow,

Diana Nieves Noel. To avoid confusion, our opinion refers to

both as “Noel,” and uses the masculine pronoun whenever

referring to plaintiff.

2

Defendant Thrifty Payless, Inc., operates the Rite Aid

drugstore chain. Our opinion refers to defendant as “Rite Aid.”

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Opinion of the Court by Cantil-Sakauye, C. J.

Noel asserts that when he set up the pool, he discovered that it

was much smaller than the photograph on the box conveys. To

demonstrate this, the complaint also includes another

photograph of the pool, as inflated and filled:

Noel’s claims under the UCL, the FAL, and the CLRA are

premised on this alleged discrepancy.3

In May 2014, Noel moved to certify a class defined as “[a]ll

persons who purchased the Ready Set Pool at a Rite Aid store

3

Rite Aid responds that Noel did not set up the pool

correctly.

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Opinion of the Court by Cantil-Sakauye, C. J.

located in California within the four years preceding the date of

the filing of this action.” By that time, Noel had conducted

discovery that yielded the total number of Ready Set Pools that

Rite Aid had sold in California during the class period (20,752,

with 2,479 of the pools being returned), and the revenue

obtained through these sales ($949,279.34). Noel’s discovery did

not, however, delve into whether Rite Aid kept records of these

transactions, or into the more general subjects of whether and

how Rite Aid collected contact information from its customers

and how it disseminated information to them.4

In opposing class certification, Rite Aid argued that Noel

had not demonstrated the existence of an ascertainable class —

a well-established prerequisite for class certification under

section 382 of the Code of Civil Procedure. (See, e.g., Brinker

Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021

(Brinker); In re Tobacco II Cases (2009) 46 Cal.4th 298, 318 (In

re Tobacco II); Sav-On Drug Stores, Inc. v. Superior Court (2004)

34 Cal.4th 319, 326 (Sav-On); Linder v. Thrifty Oil Co. (2000) 23

Cal.4th 429, 435 (Linder); Richmond v. Dart Industries, Inc.

(1981) 29 Cal.3d 462, 470 (Richmond); Vasquez v. Superior

Court (1971) 4 Cal.3d 800, 809 (Vasquez); Daar v. Yellow Cab

Co. (1967) 67 Cal.2d 695, 704 (Daar).) Specifically, Rite Aid

asserted that to show an ascertainable class, Noel bore the

burden of introducing evidence in connection with his

certification motion that would show how members of the

putative class could be identified later in the proceeding, so they

4

In his deposition, Noel testified that he had not retained

the store receipt associated with his purchase of a Ready Set

Pool, but had bought the pool using a debit card and possessed

bank records containing an entry consistent with such a

transaction.

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Opinion of the Court by Cantil-Sakauye, C. J.

could be provided with notice of the pending action. In Rite Aid’s

view, Noel’s failure to supply such proof doomed his certification

effort.

Noel responded that he had no obligation to offer evidence

on this issue in order to secure certification of the class he

proposed. His briefing in support of class certification described

various ways in which notice of the action might be distributed

to absent class members when the time came to do so.5 He

explained that “modern day point of sale systems used by major

retailers such as Rite Aid can already track purchases by

customers who pay by credit card. Many of those customers

likely belong to Rite Aid’s reward savings program, which

means Rite Aid has contact information for these individuals.

Thus, Rite Aid should be quite capable of sending individual

notices to these purchasers.” Noel also claimed that Rite Aid

“sends weekly e-mails to subscribers alerting them to new sales

and deals” and mails out weekly advertisements to California

customers, providing two other avenues through which notice

could be provided to absent class members. However, Noel

pointed to no evidence in the record (whether in the form of

declarations, interrogatory responses or admissions by Rite Aid,

deposition testimony, or information presented via a request for

judicial notice) that substantiated his assertions regarding how

class members could be notified. He did not, for example, supply

the trial court with specific proof that, through a loyalty

5

Noel advanced certain methods of identifying class

members to explain why, in his view, published notice (although

possible) might be unnecessary. (See Civ. Code, § 1781, subd.

(c)(2).)

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program, Rite Aid has access to pertinent customer contact

information.

The trial court denied the motion for class certification.

The court’s order explained that “[w]hile the court might

reasonably infer that the class, as defined by [p]laintiff, could be

ascertained based on common business practices and record

keeping, [p]laintiff has presented no evidence on this subject.

Absent some evidence as to what method or methods will be

utilized to identify the class members, what records are

available, (either from [d]efendant, the manufacturer, or other

entities such as banks or credit institutions), how those records

would be obtained, what those records will show, and how

burdensome their production would be, the court is without

sufficient evidence to determine whether the proposed class is

ascertainable. Accordingly, [the] motion to certify must be

denied.”

The trial court also declined to certify a class in connection

with Noel’s CLRA claim for a second, separate reason. In the

court’s view, common issues did not predominate with this claim

because reliance had to be proved individually as to each class

member. Finally, the court also found “that a class action is not

superior to numerous individual actions, in light of the above

findings. The class action will be no more efficient than

individual actions in light of the individual issues that must be

presented on the issue of reliance and damages.” The court’s

order was not clear whether this last determination applied only

to the CLRA class, as might be inferred by the reference to

reliance, or to the action as a whole.

After Noel appealed (see Linder, supra, 23 Cal.4th at

p. 435 [denial of certification to an entire class is an appealable

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order]), the Court of Appeal found no abuse of discretion in the

denial of class certification. (Noel v. Thrifty Payless, Inc. (2017)

17 Cal.App.5th 1315, 1321 (Noel).) Addressing the superior

court’s determination that Noel had not shown an ascertainable

class, the reviewing court diagnosed “the underlying problem

with the class certification motion” as “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.” (Ibid.) The Court of

Appeal emphasized that Noel had “submitted nothing offering a

glimmer of insight into who purchased the pools or how one

might find that out. He neither described nor produced Rite

Aid’s records . . . nor did he indicate how much . . . information

those records might reveal. Unless Noel could propose some

realistic way of associating names and contact information with

the 20,000-plus transactions identified by interrogatory

response, there remained a serious due process question in

certifying a class action.” (Id., at p. 1328.) The Court of Appeal

continued, “While Noel was not required to actually identify the

20,000-plus individuals who bought pools, his failure to come up

with any means of identifying them was a legitimate basis for

denying class certification.” (Ibid.)6

6

The Court of Appeal stressed that “the modest evidentiary

burden” (Noel, supra, 17 Cal.App.5th at p. 1333) it would impose

upon plaintiffs seeking class certification was “something that,

with proper foresight in the early stages of a class proceeding,

can be addressed quite easily, especially if it is given the same

level of care and attention as, for example, drafting a precise

description of the class” (id., at pp. 1333-1334).

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The Court of Appeal sought to harmonize its

understanding of the ascertainability requirement with the

views of other courts. The Court of Appeal noted that the court

in Estrada v. FedEx Ground Package System, Inc. (2007) 154

Cal.App.4th 1 (Estrada) had regarded a class as “ ‘ascertainable

if it identifies a group of unnamed plaintiffs by describing a set

of common characteristics sufficient to allow a member of that

group to identify himself as having a right to recover based on

the description.’ ” (Noel, supra, 17 Cal.App.5th at p. 1326,

quoting Estrada, at p. 14, italics omitted.) The Court of Appeal

also observed that Sotelo v. MediaNews Group, Inc. (2012) 207

Cal.App.4th 639 (Sotelo) had prescribed a “more demanding

standard” for ascertainability (Noel, at p. 1327), having

explained, “ ‘The ascertainability requirement is a due process

safeguard, ensuring that notice can be provided “to putative

class members as to whom the judgment in the action will be res

judicata.” [Citation.] “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 means

of identifying class members.’ ” (Noel, at p. 1327, italics omitted,

quoting Sotelo, at pp. 647-648.) Addressing these different

formulations, the Court of Appeal in this case endorsed the

Sotelo approach — describing it as “a more pragmatic approach

in determining ascertainability, and one which comports with

the rationale underlying the ascertainability requirement”

(Noel, at p. 1327) — but also sought to reconcile these views by

characterizing “Sotelo’s three-factor test as a refinement of the

ascertainability prong of the Estrada test when that prong . . .

requires a closer look.” (Noel, at p. 1329.)

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Although the appellate court below sought to reconcile the

views of the Courts of Appeal, it recognized that some tension

might exist between its analysis and that in Aguirre v. Amscan

Holdings, Inc. (2015) 234 Cal.App.4th 1290 (Aguirre). The

Court of Appeal in Aguirre held that a superior court had erred

when it declined to certify a putative consumer class on

ascertainability grounds. (Id., at p. 1299.) The Aguirre court

explained that a “representative plaintiff need not identify,

much less locate, individual class members to establish the

existence of an ascertainable class. [Citations.] Nor must the

representative plaintiff establish a means for providing personal

notice of the action to individual class members.” (Id., at p. 1301,

italics added.) The Court of Appeal in this case sought to bridge

the distance between its views and those expressed by the

Aguirre court by noting that the class in Aguirre could have

included up to a million members, whereas there were only

approximately 20,000 purchasers of the Ready Set Pool. With

the larger class, the Court of Appeal surmised, “perhaps

assuming personal notice cannot be given was realistic, but with

a class size of 20,000 we are not so quick to make that

assumption.” (Noel, supra, 17 Cal.App.5th at p. 1331.) The

Court of Appeal nevertheless conceded that its view of the

ascertainability requirement “may be contrary to that of

Aguirre.” (Id., at p. 1333.)

The Court of Appeal also found no abuse of discretion in

the superior court’s refusal to certify a CLRA class on the basis

that common issues did not predominate. (Noel, supra, 17

Cal.App.5th at pp. 1334-1336.) This aspect of the trial court’s

order is not presently before us. Turning to the lower court’s

determination that a class action was not a superior vehicle for

pressing the claims at issue, the Court of Appeal noted the

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ambiguous scope of this ruling. (Id., at p. 1336.) The court also

recognized Court of Appeal precedent holding that superiority is

not required for a class action brought under the CLRA. (Noel,

at p. 1336, citing Thompson v. Automobile Club of Southern

California (2013) 217 Cal.App.4th 719, 727-728; see also Hogya

v. Superior Court (1977) 75 Cal.App.3d 122, 132-136.)

Nevertheless, the court found any error harmless: “If the court

intended to include lack of superiority as a reason for rejecting

class certification on the CLRA cause of action, that was error,

but harmless due to the other valid reasons for denying class

certification. If the court intended its negative superiority

finding to apply only to the FAL and UCL causes of action, then

it was supported by the evidence and did not amount to an abuse

of discretion.” (Noel, at p. 1336.)

We granted review to clarify what the ascertainability

requirement for class certification involves.

II. DISCUSSION

In determining whether the trial court abused its

discretion, we begin by surveying the relevant general principles

applicable to class certification. We then turn to case law that

has considered what it means for a class to be ascertainable.

Drawing from this review, we conclude that the functions

properly assigned to the ascertainability requirement are best

served by regarding a class as ascertainable when it is defined

“in terms of objective characteristics and common transactional

facts” that make “the ultimate identification of class members

possible when that identification becomes necessary.” (Hicks,

supra, 89 Cal.App.4th at p. 915.) This standard was satisfied

here because the class definition provided a basis for class

members to self-identify. The courts below erred in importing

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an additional evidentiary burden into the ascertainability

requirement.

A. General Principles

In reviewing a class certification order, our inquiry is

“narrowly circumscribed.” (Brinker, supra, 53 Cal.4th at

p. 1022.) “ ‘The decision to certify a class rests squarely within

the discretion of the trial court, and we afford that decision great

deference on appeal, reversing only for a manifest abuse of

discretion: “Because trial courts are ideally situated to evaluate

the efficiencies and practicalities of permitting group action,

they are afforded great discretion in granting or denying

certification.” [Citation.] 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. ’ ” (Ibid.) “Under this standard,

an order based upon improper criteria or incorrect assumptions

calls for reversal ‘ “even though there may be substantial

evidence to support the court’s order.” ’ ” (Linder, supra, 23

Cal.4th at p. 436; see also Ayala v. Antelope Valley Newspapers,

Inc. (2014) 59 Cal.4th 522, 537 [“[a] certification decision is

reviewed for abuse of discretion, but when the supporting

reasoning reveals the court based its decision on erroneous legal

assumptions about the relevant questions, that decision cannot

stand”].)

Here, plaintiff sought certification of a class pursuant to

section 382 of the Code of Civil Procedure, which provides a

general authorization for class actions, and section 1781 of the

Civil Code, the provisions of which govern class suits brought

under the CLRA and inform class action practice more

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generally. (See Linder, supra, 23 Cal.4th at p. 437; Vasquez,

supra, 4 Cal.3d at p. 820.)

Section 382 of the Code of Civil Procedure authorizes a

class action 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.” “[W]e

have articulated clear requirements for the certification of a

class” under this statute. (Brinker, supra, 53 Cal.4th at p. 1021.)

“The party advocating class treatment must demonstrate the

existence of an ascertainable and sufficiently numerous class, a

well-defined community of interest, and substantial benefits

from certification that render proceeding as a class superior to

the alternatives.” (Ibid.) “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.’ ” (Linder, supra, 23 Cal.4th

at p. 435.) Regarding the first of these factors, we have

recognized “ ‘[a]s a general rule’ ” that “ ‘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.’ ” (Brinker, at p. 1022; see

also Daar, supra, 67 Cal.2d at p. 706.) Relatedly, “In certifying

a class action, the court must also conclude that litigation of

individual issues, including those arising from affirmative

defenses, can be managed fairly and efficiently.” (Duran v. U.S.

Bank National Assn. (2014) 59 Cal.4th 1, 28-29.) Finally, other

considerations relevant to certification “include the probability

that each class member will come forward ultimately to prove

his or her separate claim to a portion of the total recovery and

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whether the class approach would actually serve to deter and

redress alleged wrongdoing.” (Linder, at p. 435.)

The CLRA includes its own set of requirements for class

certification. Under this statute, “The court shall permit [a

class] suit to be maintained on behalf of all members of the

represented class if all of the following conditions exist: (1) It is

impracticable to bring all members of the class before the court.

[¶] (2) The questions of law or fact common to the class are

substantially similar and predominate over the questions

affecting the individual members. [¶] (3) The claims or defenses

of the representative plaintiffs are typical of the claims or

defenses of the class. [¶] (4) The representative plaintiffs will

fairly and adequately protect the interests of the class.” (Civ.

Code, § 1781, subd. (b).) We have not specifically identified

ascertainability as an essential element for class certification

under the CLRA, as we have for class actions authorized by

section 382 of the Code of Civil Procedure. Yet the Courts of

Appeal have routinely demanded that CLRA plaintiffs

demonstrate the existence of an ascertainable class (see, e.g.,

Apple Inc. v. Superior Court (2018) 19 Cal.App.5th 1101, 1116,

fn. 2; In re Vioxx Class Cases (2009) 180 Cal.App.4th 116, 128,

fn. 12), and this requirement is fairly subsumed in the need to

have a coherent “represented class” to pursue a class action

under the statute (Civ. Code, §1781, subd. (b)).

B. Past Discussions of Ascertainability

Although our case law has been clear that a plaintiff must

show an ascertainable class as a prerequisite to class

certification, neither our decisions nor those of the Courts of

Appeal have been as pellucid in explaining what this

requirement entails.

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1. Weaver

Our first discussion of class ascertainability appeared

more than 70 years ago — a time when class action litigation

remained in a formative stage. (See Miller, The Preservation

and Rejuvenation of Aggregate Litigation: A Systemic

Imperative (2014) 64 Emory L.J. 293, 294.) In this milieu, the

four plaintiffs in Weaver v. Pasadena Tournament of Roses

(1948) 32 Cal.2d 833 (Weaver) brought a lawsuit to recover

statutory penalties for an allegedly wrongful refusal to admit

them to the 1947 Rose Bowl football game. (Id., at p. 835.) The

plaintiffs sought to pursue the matter as a representative suit

on behalf of themselves and hundreds of other would-be patrons

who also had waited in line for tickets that ended up being

allocated through assertedly improper private sales. (Id., at p.

836.)

We agreed with the superior court’s determination that

the suit was not an appropriate representative action. (Weaver,

supra, 32 Cal.2d at p. 835.) We stressed, “In the present case

there is no ascertainable class, such as the stockholders,

bondholders, or creditors of an organization. Rather, there is

only a large number of individuals, each of whom may or may

not have, or care to assert, a claim against the operators of the

1947 Rose Bowl Game for the alleged wrongful refusal of

admission thereto. Each of such claimants must establish

separately that he was refused admission, and that such refusal

was wrongful . . . . While each would be ‘similarly situated’ in

that his cause of action arises under the same statute, his

recovery would rest on a distinct premise correlative with

varying proof as to the facts of his particular case. In such

circumstances there is not the necessary ‘common or general

interest’ in the subject-matter of the litigation appropriate to the

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maintenance of a representative action as that type of

proceeding has been analyzed in the adjudicated cases.” (Id., at

pp. 839-840.)

Our opinion in Weaver, supra, 32 Cal.2d 833, also noted

“one further point” that provided additional support for the trial

court’s ruling. (Id., at p. 842.) We observed, “In cases properly

falling within the category of representative litigation, the

judgment or decree would be res judicata for or against the class

sought to be represented. [Citations.] But that result could not

be extended to entirely separate causes of action, such as the

four plaintiffs have pleaded here, so as to bind ‘several hundred

individuals’ who are not named, and who are, so far as the

complaint shows, unknown and unascertainable. Rather, these

unknown parties are ascertainable only insofar as each may

come forward and individually present proof of all the facts

necessary to authorize a recovery in accordance with the merits

of his particular case, and judgment in one would by no means

be a judgment in any other. Plaintiffs here do not claim to

represent an association or protective committee nor do they

present any reasonable basis for ascertaining the members of

the alleged class for whom they seek to act in this litigation.

[Citation.] In short, plaintiffs’ complaint can be regarded as no

more than an invitation to such persons as may be interested to

join with them in this action in seeking relief ‘arising out of the

same transaction or series of transactions’ [citation], but such

situation furnishes no ground for the maintenance of a

representative proceeding. . . .” (Id., at pp. 842-843.)

2. Chance

We next discussed ascertainability in the context of a

representative proceeding in Chance v. Superior Court (1962)

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58 Cal.2d 275 (Chance). The plaintiffs in Chance sued on behalf

of themselves and all other owners of promissory notes secured

by 2,139 trust deeds on specific parcels within a tract of land.

(Id., at pp. 278-279.) The plaintiffs alleged that they and other

members of the putative class had been ensnared in a scheme in

which each deed of trust was associated with only a miniscule

parcel. (Id., at p. 280.) The plaintiffs sought a collective

foreclosure, the proceeds of which would help mitigate their

investment losses. (Id., at p. 283.)

In concluding that this suit could be brought as a

representative action, we first addressed whether the requisite

community of interest existed among class members. We

concluded that it did. (Chance, supra, 58 Cal.2d at pp. 284-286.)

Only later did we discuss ascertainability. Our analysis

provided, “[A]ll of the members of the instant class are

ascertainable (compare with Weaver v. Pasadena Tournament of

Roses Assn, supra, 32 Cal.2d 833, 839-840, 843), and it is

assumed that they will be given notice of the pending class

foreclosure action by registered mail or other like reliable

method [citation], thereby being afforded an opportunity to

decide whether to appear and argue for any and all appropriate

or available forms of redress desirable from their individual

points of view, against the named defendants.” (Id., at p. 290.)

3. Daar

Our most extensive discussion of class ascertainability

appeared five years after Chance, in Daar, supra, 67 Cal.2d 695.

The plaintiff in Daar sued the Yellow Cab Company for allegedly

overcharging him and other taxi customers. (Id., at pp. 699-

700.) He sought certification of both a subclass of customers who

had paid for taxi services with script book coupons, and another

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subclass of customers who had paid with cash. Regarding the

first of these subclasses, plaintiff alleged “that the names and

addresses of all purchasers and users of script books can be

definitely ascertained from defendant’s books and records.” (Id.,

at p. 700.) No similar assertions relevant to identification

appeared in the class allegations pertaining to cash customers,

as related in a separate count. (Id., at p. 702.)

The defendant in Daar had successfully demurred to the

complaint. (Daar, supra, 67 Cal.2d at p. 698.) We reversed,

holding that the allegations in each count stated facts sufficient

for class treatment under section 382 of the Code of Civil

Procedure. (Daar, at pp. 714, 717.) In relating the background

legal principles that guided our analysis, we explained that “it

uniformly has been held that two requirements must be met in

order to sustain any class action: (1) there must be an

ascertainable class [citations]; and (2) there must be a well

defined community of interest in the questions of law and fact

involved affecting the parties to be represented.” (Id., at p. 704.)

In describing the first of these requirements, we cited to our

decisions in Weaver, supra, 32 Cal.2d 833, and Chance, supra,

58 Cal.2d 275, and further explained that “[a]pplicable

precedents indicate that in observing the ascertainable class

requirement they are at the same time giving recognition to the

principle that a group of individuals’ rights to recover, each of

which is based on a separate set of facts, cannot be determined

by a judgment in a class action. To put it in another way,

although a judgment in a class action is res judicata as to claims

of members of the class represented therein [citations], res

judicata will not preclude subsequent actions by those whose

rights to recover are based upon different facts. Therefore, such

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individuals cannot properly be brought under the umbrella of a

class action.” (Daar, at pp. 704-705.)

As in Weaver, the description of ascertainability in Daar,

supra, 67 Cal.2d 695 did not consistently distinguish this

prerequisite for class certification from the need to establish a

community of interest among the class. Portions of our opinion

in Daar instead cast these elements as intertwined, such as our

explanation at one juncture that “whether there is an

ascertainable class depends in turn upon the community of

interest among the class members in the questions of law and

fact involved.” (Id., at p. 706.)

Daar, supra, 67 Cal.2d 695 did clarify certain aspects of

the ascertainability inquiry, however. We explained in Daar

that the requirement that a plaintiff show an ascertainable class

does not subsume a “necessity of identifying the individual

members of such class as a prerequisite to a class suit. If the

existence of an ascertainable class has been shown, there is no

need to identify its individual members in order to bind all

members by the judgment. The fact that the class members are

unidentifiable at this point will not preclude a complete

determination of the issues affecting the class.” (Id., at p. 706.)

In the Daar matter itself, “Presumably an accounting in the suit

at bench will determine the total amount of the alleged

overcharges; any judgment will be binding on all the users of

taxicabs within the prior four years. However, no one may

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Opinion of the Court by Cantil-Sakauye, C. J.

recover his separate damages until he comes forward, identifies

himself and proves the amount thereof.” (Ibid.)7

4. Subsequent decisions of this court

Daar, supra, 67 Cal.2d 695 remains our most detailed

explication of the ascertainability requirement. In the half-

century since Daar, we have frequently mentioned the need to

show an ascertainable class as a prerequisite to certification.

(E.g., Brinker, supra, 53 Cal.4th at p. 1021; In re Tobacco II,

supra, 46 Cal.4th at p. 318; Sav-On, supra, 34 Cal.4th at p. 326;

Linder, supra, 23 Cal.4th at p. 435; Richmond, supra, 29 Cal.3d

at p. 470; Vasquez, supra, 4 Cal.3d at p. 809.) In some instances,

we have explained how the class before us satisfied this

requirement. (E.g., Richmond, at p. 478 [observing that the

members of the class “are easily identified and located”];

Vasquez, at p. 811 [noting that the names and addresses of the

approximately 200 persons in the proposed class “may be

ascertained from defendants’ books”]; Occidental Land, Inc. v.

Superior Court (1976) 18 Cal.3d 355, 360 [“class members can

be readily identified by a search of public records”].) On two

other occasions, we have referenced ascertainability in finding

no abuse of discretion in trial courts’ refusals to certify proposed

7

Our opinion in Daar, supra, 67 Cal.2d 695 also quoted a

leading treatise’s observation that “ ‘[a] distinction is sometimes

drawn between the maintenance of the suit and its binding

effect on the absent parties. A sufficient pleading of the

conditions may withstand a demurrer and satisfy the court that

the action should proceed. But if the judgment is thereafter

collaterally attacked by an absent party, a more careful scrutiny

of its representative character may be made in determining

whether it is res judicata.’ ” (Id., at p. 706, quoting 2 Witkin,

Cal. Procedure (1954) Representative or Class Suits, § 99,

p. 1080.)

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classes. In both of these cases, however, there were multiple

grounds for denying class certification, which meant that our

analysis did not squarely address whether the failed class was

or was not ascertainable. (Fletcher v. Security Pacific National

Bank (1979) 23 Cal.3d 442, 448-449; Gerhard v. Stephens (1968)

68 Cal.2d 864, 912-913.)

We have only twice offered additional explanations of

what it means for a class to be ascertainable. Both of these

descriptions were of a summary nature. In Vasquez, supra,

4 Cal.3d 800, we stated that “[a]s to the necessity for an

ascertainable class, the right of each individual to recover may

not be based on a separate set of facts applicable only to him.”

(Id., at p. 809.) More recently, the majority opinion in In re

Tobacco II, supra, 46 Cal.4th 298 characterized ascertainability

as a “preliminary step” to class certification, which requires that

a class “ ‘ “be sufficiently definite so that it is administratively

feasible for the Court to determine whether a particular

individual is a member of the proposed class.” ’ ” (Id., at p. 323,

quoting Miller v. Janssen Pharmaceutica Products, L.P. (S.D.Ill.

2007) 2007 WL 1295824, p. *5.) Class ascertainability was not

an issue before us in In re Tobacco II, however, and we had no

occasion in that case to exhaustively consider how the concept

should be understood.

To summarize, our case law has recognized an

ascertainability requirement for class actions, but we have not

clearly articulated what this requirement entails or how it is

distinct from other prerequisites for certification — especially

the need to show a community of interest among class members.

Our decisions have also abstractly tethered class

ascertainability to due process considerations that include, but

are not necessarily limited to, the need to provide absent class

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Opinion of the Court by Cantil-Sakauye, C. J.

members with adequate notice. But this connection has not led

to a consensus among the Courts of Appeal regarding what the

ascertainability requirement entails.

5. The views of the Courts of Appeal regarding

ascertainability

Following our decision in Daar, supra, 67 Cal.2d 695, the

Courts of Appeal have developed two basic views of the

ascertainability requirement.

One view of ascertainability concentrates on the proposed

class definition itself. This view was applied in Bartold v.

Glendale Federal Bank (2000) 81 Cal.App.4th 816 (Bartold),

superseded by statute on another point as stated in Markowitz

v. Fidelity Nat. Title Co. (2006) 142 Cal.App.4th 508, 524. The

Bartold court explained that “[a] class is ascertainable if it

identifies a group of unnamed plaintiffs by describing a set of

common characteristics sufficient to allow a member of that

group to identify himself or herself as having a right to recover

based on the description.” (81 Cal.App.4th at p. 828.) This basic

view of ascertainability has been reiterated by numerous other

Courts of Appeal, including the courts in Estrada, supra, 154

Cal.App.4th at page 14 and Aguirre, supra, 234 Cal.App.4th at

pages 1299 to 1300. (See also Aguirre, at p. 1300 [listing cases].)

A similar formulation regards a class as ascertainable when it

is defined “in terms of objective characteristics and common

transactional facts” that make “the ultimate identification of

class members possible when that identification becomes

necessary.” (Hicks, supra, 89 Cal.App.4th at p. 915.)

The second basic view of ascertainability entails a more

exacting inquiry. One such articulation regards the

ascertainability requirement as calling for an examination into

“(1) the class definition, (2) the size of the class and (3) the

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means of identifying class members.” (Miller v. Woods (1983)

148 Cal.App.3d 862, 873 (Miller); see also Noel, supra, 17

Cal.App.5th at p. 1324, Sotelo, supra, 207 Cal.App.4th at p. 648;

Reyes v. Board of Supervisors (1987) 196 Cal.App.3d 1263,

1274.) Consistent with this view, it has been said that “[c]lass

members are ‘ascertainable’ where they may be readily

identified without unreasonable expense or time by reference to

official records.” (Rose v. City of Hayward (1981) 126 Cal.App.3d

926, 932 (Rose).) On its face, the quoted language from Rose

could be understood as specifying a sufficient, as opposed to a

necessary, basis for finding an ascertainable class within the

Miller framework.8 But some courts, drawing from Rose’s focus

on the mechanics of identifying class members, have gone

further and required a class plaintiff to make a specific factual

or evidentiary showing in order to show an ascertainable class.

The Court of Appeal below, for example, regarded plaintiff as

obligated to provide proof substantiating a specific mechanism

or mechanisms through which class members could be identified

8

The court in Rose, supra, 126 Cal.App.3d 926, ultimately

determined that “[t]he identity of the class . . . is readily

ascertainable from . . . departmental records” — a conclusion

that did not necessarily rule out other avenues for showing an

ascertainable class. (Id., at p. 932; see also Faulkinbury v. Boyd

& Associates, Inc. (2013) 216 Cal.App.4th 220, 240 [applying the

Rose standard and finding an ascertainable class]; Mora v. Big

Lots Stores, Inc. (2011) 194 Cal.App.4th 496, 504 [same];

Bomersheim v. Los Angeles Gay & Lesbian Center (2010) 184

Cal.App.4th 1471, 1481 [same]; Ghazaryan v. Diva Limousine,

Ltd. (2008) 169 Cal.App.4th 1524, 1532-1533 [same]; Lee v.

Dynamex, Inc. (2008) 166 Cal.App.4th 1325, 1334 [same]; Bufil

v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193,

1206-1208 [same]; Aguiar v. Cintas Corp. No. 2 (2006) 144

Cal.App.4th 121, 135-136 [same].)

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so as to be personally notified of the class proceeding. (Noel,

supra, 17 Cal.App.5th at pp. 1329, 1333.) The absence of

“official” records identifying class members was central to the

analysis in Sotelo, supra, 207 Cal.App.4th 639, in which the

Court of Appeal affirmed a denial of class certification due to the

representative plaintiffs’ perceived failure to show an

ascertainable class. (Id., at p. 650.) Other Courts of Appeal, in

affirming denials of class certification on ascertainability

grounds, have emphasized that the representative plaintiff or

plaintiffs had not shown that individual class members could be

readily identified without unreasonable expense or time. (E.g.,

Cruz v. Sun World Internat., LLC (2015) 243 Cal.App.4th 367,

382; Hale v. Sharp Healthcare (2014) 232 Cal.App.4th 50, 59-

61.)

The differences between these two basic approaches to

ascertainability can be somewhat blurred in practice. And as

previously noted, the Court of Appeal below attempted to

synthesize these views. (Noel, supra, 17 Cal.App.5th at

p. 1329.) But as this case illustrates, a court’s choice between

the two views can be critical. A construction of ascertainability

that assigns the plaintiff in a putative class action an

affirmative responsibility to show the existence of records (or

some other mechanism or channel) through which individual

class members can be identified for the purpose of providing

them with personal notice of the proceeding may function to

defeat class certification in a variety of situations. A plaintiff

may not anticipate the need to adduce such proof at the time

class certification is sought, meaning that no precertification

discovery will have occurred on this point. This kind of

evidentiary requirement also can prevent certification when a

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Opinion of the Court by Cantil-Sakauye, C. J.

plaintiff’s discovery efforts, albeit substantial, produce

inadequate evidence from the perspective of the court.

An additional burden emerges when the plaintiff must

demonstrate that individual members of the proposed class can

“be readily identified without unreasonable expense or time.”

(Rose, supra, 126 Cal.App.3d at p. 932.) With such a

requirement, class certification may be denied on

ascertainability grounds due to expected complexities in the

provision of notice, or in distinguishing class members from

nonmembers — without close consideration necessarily being

given to whether these difficulties are actual, as opposed to

merely hypothetical, or whether they are so intransigent and

pervasive that they would make a class proceeding

unmanageable, or undesirable in light of the plausible

alternatives.

6. The views of the federal courts regarding

ascertainability

Federal courts have wrestled with ascertainability issues

in cases where plaintiffs have sought certification of a class under

rule 23 of the Federal Rules of Civil Procedure (28 U.S.C.).9

Although this rule does not expressly demand an ascertainable

class, most courts tasked with applying it have regarded

ascertainability as an implicit “ ‘threshold’ ” requirement for

certification of a class under Rule 23(b)(3). (Sandusky Wellness

Center v. MedTox Scientific (8th Cir. 2016) 821 F.3d 992, 995; but

see Briseno v. ConAgra Foods, Inc. (9th Cir. 2017) 844 F.3d 1121,

1124-1125, fn. 4 [“we have addressed the types of alleged

definitional deficiencies other courts have referred to as

9

All further references to “Rule 23” and its subparts are to

the Federal Rules of Civil Procedure (28 U.S.C.).

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Opinion of the Court by Cantil-Sakauye, C. J.

‘ascertainability’ issues . . . through analysis of Rule 23’s

enumerated requirements”].) In this context, competing views

regarding ascertainability have emerged within the federal

system, just as they have within the courts of this state.

A stringent view of ascertainability is most closely

associated with decisions produced by the United States Court

of Appeals for the Third Circuit. (See Marcus v. BMW of North

America, LLC (3d Cir. 2012) 687 F.3d 583, 592-594 (Marcus);

Hayes v. Wal-Mart Stores, Inc. (3d Cir. 2013) 725 F.3d 349, 354-

356; Carrera v. Bayer Corp. (3d Cir. 2013) 727 F.3d 300, 305-

312.) Under this approach, a plaintiff seeking class certification

under Rule 23(b)(3) must show not only that the class has been

“defined with reference to objective criteria,” but also that there

is “a reliable and administratively feasible mechanism for

determining whether putative class members fall within the

class definition.” (Hayes, at p. 355.) Courts adopting this

conception of ascertainability have refused to certify (or upheld

refusals to certify) consumer classes in situations such as the

one presently before this court — in which it is unlikely, or at

least unproven, that individual purchasers of the commodity at

the heart of the dispute would have retained their receipts or

other proof of purchase, the defendant did not maintain a

specific list of purchasers, and the putative class representative

offered no proof when seeking certification “that a single

purchaser of [the product] could be identified using records of

customer membership cards or records of online sales.”

(Carrera, at p. 309; see id., at pp. 304, 312.)

Other courts have pushed back on this stringent approach

to ascertainability. The United States Court of Appeals for the

Seventh Circuit is among the federal courts that assign a

narrower function to the ascertainability requirement. Its

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decision in Mullins v. Direct Digital, LLC (7th Cir. 2015) 795

F.3d 654 (Mullins) offers a thorough, and in our view

illuminating, assessment of how ascertainability should be

understood in connection with class certification. Because the

analysis in Mullins is particularly helpful in resolving the issue

before us, we discuss its facts and reasoning at some length

below. (See Linder, supra, 23 Cal.4th at pp. 437-439 [consulting

federal court decisions construing Rule 23 for guidance in

dealing with similar class certification issues arising under

state law].)

The plaintiff in Mullins, supra, 795 F.3d 654, secured the

certification of a consumer class under Rule 23(b)(3) in a matter

alleging that the defendant made fraudulent representations in

marketing a dietary joint supplement. (Mullins, at p. 658.)

Drawing from the Third Circuit’s jurisprudence, the defendant

in Mullins argued on appeal of the certification order that the

class was not ascertainable because the plaintiff had “fail[ed] to

show a reliable and administratively feasible way to determine

whether a particular person is a member of the class.” (Id., at

p. 661.)

The appellate court in Mullins, supra, 795 F.3d 654,

rejected this view of ascertainability and affirmed the class

certification order entered by the district court. (Id., at p. 658.)

In doing so, the federal court of appeals distinguished between

a relatively uncontroversial “ ‘weak’ version of

ascertainability,” and the more demanding ascertainability

standard adopted by the Third Circuit. (Id., at p. 659.) The

“ ‘weak’ ” construction of ascertainability, the court explained,

derives from “experience [that] has led courts to require that

classes be defined clearly and based on objective criteria.” (Ibid.)

Even in this weak form, Mullins elaborated, the requirement of

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a clearly defined class based on objective criteria is far from

toothless, for it serves to weed out “classes that are defined too

vaguely” (ibid.), “classes that are defined by subjective criteria,

such as by a person’s state of mind” (id., at p. 660), and “classes

that are defined in terms of success on the merits — so-called

‘fail-safe classes’ ” (ibid.), all of which raise due process or other

fairness concerns. The Mullins court regarded this approach to

ascertainability as striking an appropriate balance, whereas the

Third Circuit’s more exacting conception of this requirement did

not. In the view of the Mullins court, the more demanding

specification “does not further any interest of Rule 23 that is not

already adequately protected by the Rule’s explicit

requirements. On the other side of the balance, the costs of

imposing the requirement are substantial. The stringent

version of ascertainability effectively bars low-value consumer

class actions, at least where plaintiffs do not have documentary

proof of purchases, and sometimes even when they do.” (Id., at

p. 662.)

Mullins, supra, 795 F.3d 654 then proceeded to dissect the

specific policy arguments advanced for the Third Circuit’s

construction of the ascertainability requirement. (Id., at pp.

663-672.) One such contention was that the “stringent version

of ascertainability ‘eliminates serious administrative burdens

that are incongruous with the efficiencies expected in a class

action by insisting on the easy identification of class members.’ ”

(Id., at p. 663, quoting Marcus, supra, 687 F.3d at p. 593.) The

Mullins court saw this concern as “better addressed by the

explicit requirements of Rule 23(b)(3), which requires that the

class device be ‘superior to other available methods for fairly and

efficiently adjudicating the controversy,’ ” with one

consideration relevant to the superiority inquiry being “ ‘the

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likely difficulties in managing a class action.’ ” (Mullins,

quoting Rule 23(b)(3), (b)(3)(D).)

Mullins, supra, 795 F.3d 654 explained why it made more

sense to address within the context of manageability any

concerns about the burdens that could be associated with the

identification of class members: “When administrative

inconvenience is addressed as a matter of ascertainability,

courts tend to look at the problem in a vacuum, considering only

the administrative costs and headaches of proceeding as a class

action. [Citation.] But when courts approach the issue as part

of a careful application of Rule 23(b)(3)’s superiority standard,

they must recognize both the costs and benefits of the class

device. [Citation.] [¶] . . . In many cases where the heightened

ascertainability requirement will be hardest to satisfy, there

realistically is no other alternative to class treatment.” (Id., at

pp. 663-664.) The court in Mullins cautioned that “[t]his does

not mean . . . that district courts should automatically certify

classes in these difficult cases,” and granted that “[i]f faced with

what appear to be unusually difficult manageability problems

at the certification stage, district courts have discretion to insist

on details of the plaintiff’s plan for notifying the class and

managing the action.” (Id., at p. 664.) Yet, the court continued,

judges who encounter such challenges should attempt to

leverage their “experience with and flexibility in engineering

solutions to difficult problems of case management,” and

“refusing to certify on manageability grounds alone should be

the last resort.” (Ibid.)

The court in Mullins, supra, 795 F.3d 654 also addressed

an argument that resonated with the Court of Appeal in this

case — “that the heightened ascertainability requirement is

needed to protect absent class members. If the identities of

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Opinion of the Court by Cantil-Sakauye, C. J.

absent class members cannot be ascertained, the argument

goes, it is unfair to bind them by the judicial proceeding.” (Id., at

p. 665.) It perceived that “[a] central premise of this argument

is that class members must receive actual notice of the class

action so that they do not lose their opt-out rights.” (Ibid.)

The court in Mullins, supra, 795 F.3d 654 regarded this

premise as mistaken. It emphasized that, when a class has been

certified under Rule 23(b)(3), Rule 23(c)(2)(B) requires the

provision of the “ ‘best notice that is practicable under the

circumstances, including individual notice to all members who

can be identified through reasonable effort’ ” — language

connoting that individual notice need not be given to members

who cannot be so identified. (Mullins, at p. 665.)10 Nor, in the

court’s view, did principles of due process invariably require

individual notice to absent class members. Instead, in cases

such as the one before it, “When class members’ names and

addresses are known or knowable with reasonable effort, notice

can be accomplished by first-class mail. [Citation.] When that

is not possible, courts may use alternative means such as notice

through third parties, paid advertising, and/or posting in places

10

With classes certified under Rule 23(b)(1) or (2),

meanwhile, the federal rules provide more generally that “the

court may direct appropriate notice to the class.” (Id., Rule

23(c)(2)(A).)

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frequented by class members, all without offending due

process.” (Ibid.)11

Mullins, supra, 795 F.3d 654 also explained why

construing the ascertainability requirement as anticipating

personal notice in all cases could provide absent class members

with a pyrrhic victory. “More broadly,” the court wrote, “the

stringent version of ascertainability loses sight of a critical

feature of class actions for low-value claims like this one. In

these cases, ‘only a lunatic or a fanatic’ would litigate the claim

individually, [citation], so opt-out rights are not likely to be

exercised by anyone planning a separate individual lawsuit.

When this is true, it is particularly important that the types of

notice that courts require correspond to the value of the absent

class members’ interests. [Citation.] . . . . [¶] The heightened

ascertainability approach upsets this balance. It comes close to

insisting on actual notice to protect the interests of absent class

members, yet overlooks the reality that without certification,

putative class members with valid claims would not recover

anything at all.” (Id., at pp. 665-666.)

11

Mullins, supra, 795 F.3d 654 also rejected the argument

that a heightened ascertainability requirement was necessary

to protect the due process interests of class action defendants by

protecting them from bogus claims and disproportionate

liability. (Id., at pp. 669-672.) These concerns do not resonate

here, in any event. There is no suggestion that, if the plaintiff

class ultimately prevails, Rite Aid will face any onslaught of

spurious claims, much less a bevy that could not be weeded out

through a competent claims administration process. Also,

because it is known how many pools were sold and not returned,

and how much in revenue Rite Aid earned from these sales, the

overall body of claims has a functional ceiling that further

marginalizes any prospect of exaggerated liability.

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Opinion of the Court by Cantil-Sakauye, C. J.

C. Analysis

1. An ascertainable class is one defined in objective

terms that make the eventual identification of class

members possible

Although Mullins, supra, 795 F.3d 654 applied only

federal law, much of its analysis rings true here as well. We

agree with Mullins’ assignment of a limited but important

function to the ascertainability requirement. We conclude that

the objectives of this requirement are best achieved by regarding

a class as ascertainable when it is defined “in terms of objective

characteristics and common transactional facts” that make “the

ultimate identification of class members possible when that

identification becomes necessary.” (Hicks, supra, 89

Cal.App.4th at p. 915.) We regard this standard as including

class definitions that are “sufficient to allow a member of [the

class] to identify himself or herself as having a right to recover

based on the [class] description.” (Bartold, supra, 81

Cal.App.4th at p. 828.)

This understanding of the threshold requirement of

ascertainability for class certification protects the due process

interests of all parties and absent class members without

unduly impairing the efficacy of the class action mechanism. We

have explained some of the benefits that class proceedings such

as the one at bar can yield: “Not only do class actions offer

consumers a means of recovery for modest individual damages,

but such actions often produce ‘several salutary by-products,

including a therapeutic effect upon those sellers who indulge in

fraudulent practices, aid to legitimate business enterprises by

curtailing illegitimate competition, and avoidance to the judicial

process of the burden of multiple litigation involving identical

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claims.’ ” (Linder, supra, 23 Cal.4th at p. 445, quoting Vasquez,

supra, 4 Cal.3d at p. 808; see also Vasquez, at p. 807.)

But a class proceeding must be maintained in a manner

consistent with due process. A class definition framed in

objective terms that make the identification of class members

possible promotes due process in at least two ways. Such

phrasing puts members of the class on notice that their rights

may be adjudicated in the proceeding, so they must decide

whether to intervene, opt out, or do nothing and live with the

consequences. (See Hicks, supra, 89 Cal.App.4th at p. 914

[“[a]scertainability is required in order to give notice to putative

class members as to whom the judgment in the action will be res

judicata”].) This kind of class definition also advances due

process by supplying a concrete basis for determining who will

and will not be bound by (or benefit from) any judgment.

Allowing a class to be defined in vague terms, by contrast, could

blunt any invocation of res judicata by the defendant in

subsequent lawsuits brought by persons attempting to relitigate

issues decided in the earlier class proceeding. The outcome

might resemble that which obtains when the “one-way

intervention” condemned by our decision in Fireside Bank v.

Superior Court (2007) 40 Cal.4th 1069, 1078 (Fireside Bank)

occurs — the defendant could be unfairly exposed to a succession

of essentially duplicative class lawsuits (see id., at pp. 1078-

1083).12

12

The ascertainability standard we endorse also addresses

similar fairness concerns that may be associated with other

problematic class definitions, such as a class defined by its

putative members’ subjective states of mind, as opposed to

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The Court of Appeal saw a slightly different set of due

process considerations as favoring a more stringent approach to

ascertainability. It expressed concern that, without an

evidentiary showing by plaintiff, absent class members would

never receive notice of the action and would therefore lack the

opportunity to opt out. To this effect, the Court of Appeal quoted

Sotelo, supra, 207 Cal.App.4th at page 649: “ ‘The theoretical

ability to self-identify as a member of the class is useless if one

never receives notice of the action.’ ” (Noel, supra, 17

Cal.App.5th at p. 1327.) We appreciate the court’s interest in

protecting the due process rights of absent class members. Yet,

as we explain below, this concern does not justify the evidentiary

burden that the Court of Appeal attached to the ascertainability

requirement — or, for that matter, any blanket requirement

that class members must be identifiable “by reference to official

records” (Rose, supra, 126 Cal.App.3d at p. 932) to form an

ascertainable class.

We agree, of course, that the provision of notice to absent

class members carries due process connotations. (See Phillips

Petroleum Co. v. Shutts (1985) 472 U.S 797, 811 (Shutts);

Fireside Bank, supra, 40 Cal.4th at p. 1083.) But due process

does not dictate that certification of a putative plaintiff class

invariably must depend on all absent class members being sent

(much less receiving) individual notice of the action. Instead,

objective facts. (See 1 Newberg on Class Actions (5th ed. 2011)

§ 3:5, p. 168 [“[c]ourts generally deny certification when the

putative class is defined by class members’ state of mind”]; see

also Mullins, supra, 795 F.3d at p. 660; Simer v. Rios (7th

Cir.1981) 661 F.2d 655, 669-670.)

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the law adopts a more nuanced and pragmatic approach,

consistent with the general principle that when an important

judicial mechanism for advancing the social good is involved, “A

construction of the Due Process Clause which would place

impossible or impractical obstacles in the way could not be

justified.” (Mullane v. Central Hanover Tr. Co. (1950) 339 U.S.

306, 313-314 (Mullane).)

Mullane, supra, 339 U.S. 306 provides the touchstone for

assessing how due process informs the provision of notice in the

context of a class action. The court in Mullane recognized that

“[a]n elementary and fundamental requirement of due process

in any proceeding which is to be accorded finality is notice

reasonably calculated, under all the circumstances, to apprise

interested parties of the pendency of the action and afford them

an opportunity to present their objections. [Citations.] The

notice must be of such nature as reasonably to convey the

required information, [citation], and it must afford a reasonable

time for those interested to make their appearance [citations].”

(Id., at p. 314.) Significantly, the court drew the following line:

“But if with due regard for the practicalities and peculiarities of

the case these conditions are reasonably met, the constitutional

requirements are satisfied. ‘The criterion is not the possibility

of conceivable injury but the just and reasonable character of

the requirements, having reference to the subject with which the

statute deals.’ ” (Id., at pp. 314-315.)

Applying these principles, the court in Mullane, supra,

339 U.S. 306 reasoned that in connection with a particular

judicial settlement of accounts, notice by personal mail was

required for beneficiaries whose identities and mailing

addresses were actually known. (Id., at p. 318.) Yet, “in view of

the character of the proceedings and the nature of the interests”

34

NOEL v. THRIFTY PAYLESS, INC.

Opinion of the Court by Cantil-Sakauye, C. J.

involved, notice by publication would suffice for those

beneficiaries “whose interests or whereabouts could not with

due diligence be ascertained.” (Id., at p. 317.) Likewise, “more

certain notice” could be dispensed with for those beneficiaries

“whose interests are either conjectural or future or, although

they could be discovered upon investigation, do not in due course

of business come to knowledge of the common trustee.” (Ibid.)

This notice scheme was “the best practicable, ‘reasonably

calculated, under all the circumstances, to apprise interested

parties of the pendency of the action and afford them an

opportunity to present their objections.’ ” (Shutts, supra, 472

U.S. at p. 812, quoting Mullane, at pp. 314-315, italics added.)

Our case law has adopted a similarly practical approach,

in which the circumstances of each case determine what forms

of notice will adequately address due process concerns. (See

Linder, supra, 23 Cal.4th at p. 444 [describing the notice inquiry

as entailing due consideration of “the necessity, feasibility and

costs of any particular form of notice”].) Recall that in Daar,

supra, 67 Cal.2d 695, examined ante, we found the allegations

in the complaint sufficient to state a viable class even as to

taxicab customers who paid in cash, for whom the prospect of

individualized notice was far-fetched at best. (Id., at p. 714.) In

doing so, we disavowed any “necessity of identifying the

individual members of such class as a prerequisite to a class

suit. If the existence of an ascertainable class has been shown,

there is no need to identify its individual members in order to

bind all members by the judgment.” (Id., at p. 706.) We then

added, “The fact that the class members are unidentifiable at

this point will not preclude a complete determination of the

issues affecting the class.” (Ibid., italics added.)

“Unidentifiable” means more than just unidentified. Our use of

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NOEL v. THRIFTY PAYLESS, INC.

Opinion of the Court by Cantil-Sakauye, C. J.

the former term conveyed that in a case such as Daar, due

process does not demand that the proponent of class treatment

demonstrate, as a prerequisite for certification, that (much less

how) class members eventually will receive individual notice of

the action.

Since then, we have observed that individual notice may

not always be required even for absent class members whose

whereabouts are known, explaining “the representative plaintiff

in a California class action is not required to notify individually

every readily ascertainable member of his class without regard

to the feasibility of such notice; he need only provide meaningful

notice in a form that ‘should have a reasonable chance of

reaching a substantial percentage of the class members.’ ”

(Archibald v. Cinerama Hotels (1976) 15 Cal.3d 853, 861,

quoting Cartt v. Superior Court (1975) 50 Cal.App.3d 960, 974;

compare Rule 23(c)(2)(B) [upon certifying a class under Rule

23(b)(3), “the court must direct to class members the best notice

practicable under the circumstances including individual notice

to all members who can be identified through reasonable

effort”].) One Court of Appeal has elaborated that “when the

membership of the class is huge, the damages are minimal, and

res judicata and . . . other problems . . . are insignificant, notice

by publication is adequate.” (Cooper v. American Sav. & Loan

Assn. (1976) 55 Cal.App.3d 274, 285.)

The pertinent statutes and California Rules of Court are

in accord. With claims brought as putative class actions under

the CLRA, “If the action is permitted as a class action, the court

may direct either party to notify each member of the class of the

action. The party required to serve notice may, with the

consent of the court, if personal notification is unreasonably

expensive or it appears that all members of the class cannot be

36

NOEL v. THRIFTY PAYLESS, INC.

Opinion of the Court by Cantil-Sakauye, C. J.

notified personally, give notice as prescribed herein by

publication in accordance with Section 6064 of the Government

Code in a newspaper of general circulation in the county in

which the transaction occurred.” (Civ. Code, § 1781, subd. (d).)

In the same spirit, the Rules of Court prescribe an array of

considerations for determining the form or forms of notice that

should be provided to a certified class. Pursuant to rule 3.766(e)

of the California Rules of Court, “In determining the manner of

the notice [to class members], the court must consider: [¶]

(1) The interests of the class; [¶] (2) The type of relief requested;

[¶] (3) The stake of the individual class members; [¶] (4) The cost

of notifying class members; [¶] (5) The resources of the parties;

[¶] (6) The possible prejudice to class members who do not

receive notice; and [¶] (7) The res judicata effect on class

members.” The rules of court also provide that “[i]f personal

notification is unreasonably expensive or the stake of individual

class members is insubstantial, or if it appears that all members

of the class cannot be notified personally, the court may order a

means of notice reasonably calculated to apprise the class

members of the pendency of the action — for example,

publication in a newspaper or magazine; broadcasting on

television, radio, or the Internet; or posting or distribution

through a trade or professional association, union, or public

interest group.” (Id., rule 3.766(f), italics added.)

To summarize, due process does not invariably require

that personal notice be directed to all members of a class in order

for a class action to proceed, or for that matter that an individual

member of a certified class must receive notice to be bound by a

judgment. (See Juris v. Inamed Corp. (11th Cir. 2012) 685 F.3d

1294, 1321 [citing cases]; 7AA Wright et al., Federal Practice &

Procedure (3d ed. 2005) § 1789.1, p. 571.) It follows that a

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NOEL v. THRIFTY PAYLESS, INC.

Opinion of the Court by Cantil-Sakauye, C. J.

construction of the ascertainability requirement that presumes

such notice is necessary to satisfy due process, and demands

that the plaintiff show how it can be accomplished, threatens to

demand too much, too soon. It is likewise mistaken to take a

categorical view that the relevant due process interests can be

satisfied only when “official records” (Rose, supra, 126

Cal.App.3d at p. 932) supply the means of identifying class

members, and for a similar reason: due process is not that

inflexible.13

The Court of Appeal below recognized the possibility that

due process might not require individual notice to absent class

members in all circumstances. As recounted ante, the Court of

Appeal noted that the court in Aguirre, supra, 234 Cal.App.4th

1290 had declined to require such notice to consumers within

the plaintiff class. (Noel, supra, 17 Cal.App.5th at p. 1331.) It

distinguished Aguirre on the ground that the class in that case

was much larger than the proposed class is here. (Noel, at

p. 1331.) We believe the point is more fundamental: As a rule,

a representative plaintiff in a class action need not introduce

evidence establishing how notice of the action will be

communicated to individual class members in order to show an

ascertainable class.

This bright-line rule maintains the straightforward

nature of what is properly understood as a threshold

requirement for class certification, and allows for the relevant

13

As a somewhat distinct point, we also observe that

premising ascertainability on the existence of official records

capable of being used to identify class members might, in some

situations, incentivize potential class action defendants to

destroy or refuse to maintain useful records that could provide

a basis for class treatment.

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NOEL v. THRIFTY PAYLESS, INC.

Opinion of the Court by Cantil-Sakauye, C. J.

due process interests to be more sensitively calibrated and

addressed through other mechanisms. As shown, the

development of a notice plan that comports with due process

implicates a diverse array of considerations. (See Cal. Rules of

Court, rule 3.766(f); Linder, supra, 23 Cal.4th at pp. 444, 446.)

Some of the facts relevant to the development of a

constitutionally adequate notice plan normally will not be

immediately obvious from the class definition itself. Regardless

of the size of the class or other relevant circumstances, a demand

that the representative plaintiff show how individualized notice

could be provided to class members in order to establish an

ascertainable class could preempt a more careful, nuanced, and

potentially collaborative assessment, and in doing so impose

upon the plaintiff an absolute requirement that closer review of

all of the relevant facts could demonstrate to be excessive in

light of the interests involved.

This case illustrates the problem. The record before us

does not establish all of the facts and circumstances relevant to

a determination regarding the appropriate form or forms of

notice to the class. Yet the record casts substantial doubt on the

proposition that due process can be satisfied only through the

provision of individual notice to the approximately 20,000

members of the putative class. For one thing, these purchasers

may not be reasonably identifiable. Meanwhile, given the

modest amount at stake (the pool having retailed for $59.99),

the odds that any class member will bring a duplicative

individual action in the future are effectively zero. Thus the

true choice in this case is not between a single class action

challenging the packaging of the Ready Set Pool and multiple

individual actions pressing similar claims; it is between a class

action and no lawsuits being brought at all. Under the

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NOEL v. THRIFTY PAYLESS, INC.

Opinion of the Court by Cantil-Sakauye, C. J.

circumstances, due process may not demand personal notice to

individual class members, and to build a contrary assumption

into the ascertainability requirement would be a mistake.14

Reading into the ascertainability element an additional

requirement that the identification of class members must occur

“ ‘without unreasonable expense or time’ ” (Sotelo, supra, 207

Cal.App.4th at p. 648) runs a similar risk of preempting a more

careful analysis later. Our jurisprudence addressing class

certification has stressed the importance of a careful weighing

of both the benefits and the burdens that may be associated with

a proposed class action. (See, e.g., Linder, supra, 23 Cal.4th at

pp. 445-446.) A conception of ascertainability as concerned with

whether class members can be identified without an

unreasonable commitment of expense or time is at cross

purposes with this direction. As the court in Mullins supra,

795 F.3d at pages 663 to 664 explained in rejecting a similar

expansion of the ascertainability requirement, such an approach

trains the court’s attention, at a threshold juncture, exclusively

toward the side of the ledger where costs and challenges are

compiled. This focus means that full attention will not

necessarily be given to countervailing considerations — such as

whether these difficulties, although present, might nevertheless

be effectively managed through application of the various tools

and resources courts have at their disposal for effective

14

To be clear, we have no occasion at this time to decide

precisely what would constitute adequate notice to absent

members of the proposed class in this case. Presumably, after

remand any and all appropriate inquiries will be made into

matters relevant to the provision of adequate notice.

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NOEL v. THRIFTY PAYLESS, INC.

Opinion of the Court by Cantil-Sakauye, C. J.

supervision of a class proceeding, and whether, notwithstanding

possible notice issues, an appropriately supervised class action

nevertheless can be expected to deliver benefits that, from a

comparative perspective, would make it preferable to

alternative courses of action.15

15

Numerous decisions by the Courts of Appeal, in addition

to the opinion below, have invoked and applied the standard for

ascertainability originally set forth in Rose v. City of Hayward,

supra, 126 Cal.App.3d at page 932, providing that “[c]lass

members are ‘ascertainable’ where they may be readily

identified without unreasonable expense or time by reference to

official records.” (See Hefczyc v. Rady Children’s Hospital-San

Diego (2017) 17 Cal.App.5th 518, 536-540; Kendall v. Scripps

Health (2017) 16 Cal.App.5th 553, 574-575; Cruz v. Sun World

Internat., LLC, supra, 243 Cal.App.4th at pp. 375-382; Hale v.

Sharp Healthcare, supra, 232 Cal.App.4th at pp. 58-61;

Thompson v. Automobile Club of Southern California, supra,

217 Cal.App.4th at pp. 728-731; Faulkinbury v. Boyd &

Associates, Inc., supra, 216 Cal.App.4th at p. 240; Sotelo v.

MediaNews Group, Inc., supra, 207 Cal.App.4th at pp. 648-650;

Mora v. Big Lots Stores, Inc., supra, 194 Cal.App.4th at p. 504;

Bomersheim v. Los Angeles Gay & Lesbian Center, supra, 184

Cal.App.4th at p. 1481; Ghazaryan v. Diva Limousine, Ltd.,

supra, 169 Cal.App.4th at pp. 1532-1533; Lee v. Dynamex, Inc.,

supra, 166 Cal.App.4th at p. 1334; Bufil v. Dollar Financial

Group, Inc., supra, 162 Cal.App.4th at pp. 1206-1208; Aguiar v.

Cintas Corp. No. 2, supra, 144 Cal.App.4th at pp. 135-136.) As

our analysis should make clear, this is one way but not the only

way to show an ascertainable class. We therefore disapprove of

this standard insofar as it could be perceived as exclusive.

Likewise, insofar as the three-factor approach to

ascertainability set forth in Miller, supra, 148 Cal.App.3d at

page 873 could be read to demand a more exacting inquiry than

the approach we endorse today, we disapprove of it, as well.

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NOEL v. THRIFTY PAYLESS, INC.

Opinion of the Court by Cantil-Sakauye, C. J.

Our view of the ascertainability requirement does not

prohibit a court asked to certify a class from considering the

separate question of notice to absent class members. Arguments

and evidence relating to the provision of notice to the class

conceivably could counsel against class certification insofar as

they may show that another requirement for a proper class

proceeding, aside from ascertainability, has not been met — e.g.,

that a class action would be unmanageable, even after due

consideration is given to how manageability concerns could be

resolved; or that a class proceeding would not be superior to the

alternatives. (Accord, Mullins, 795 F.3d at p. 664 [“If faced with

what appear to be unusually difficult manageability problems

at the certification stage, district courts have discretion to insist

on details of the plaintiff’s plan for notifying the class and

managing the action.”].)16 But, at the risk of repetition, we

conclude that these issues, where they exist, are appropriately

addressed outside of and separately from the ascertainability

requirement.

2. The trial court abused its discretion when it found no

ascertainable class existed

It follows from the analysis above that the trial court erred

when it determined that the class proposed by plaintiff is not

ascertainable. It is. The phrasing, “All persons who purchased

16

Even though class definition is logically antecedent to the

question of how notice is to be provided to the class (see Fireside

Bank, supra, 40 Cal.4th at p. 1074; Home Savings & Loan Assn.

v. Superior Court (1974) 42 Cal.App.3d 1006, 1010) and notice

is commonly addressed after class certification (see, e.g., Linder,

supra, 23 Cal.4th at p. 444), contemporaneous inquiries into

both class definition and notice are permissible under the CLRA

(see Civ. Code, § 1781, subd. (c)(1), (2)) and the rules of court

(Cal. Rules of Court, rule 3.766(c)).

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NOEL v. THRIFTY PAYLESS, INC.

Opinion of the Court by Cantil-Sakauye, C. J.

the Ready Set Pool at a Rite Aid store located in California

within the four years preceding the date of the filing of this

action” is neither vague nor subjective. A member of the class

could appreciate from this definition whether he or she is

included within it, and thus be in a position to take appropriate

steps to protect his or her interests. And the definition makes

the res judicata consequences of a judgment clear, creating no

ambiguity as to who will and will not be bound by the outcome.

(See Daar, supra, 67 Cal.2d at p. 706.)17

To the extent that the trial court had concerns regarding

the state of the record as it pertained to matters such as the

provision of notice to class members, or how burdensome it

would be to identify class members, those issues should not have

been resolved in the context of ascertainability. And regardless

of whether plaintiff’s failure to supply evidence associated with

the identification of class members might have supported a

refusal to certify a class on some other ground (but cf. Daar,

supra, 67 Cal.2d at p. 706), it manifestly did not justify a failure

to find an ascertainable class. Our review ends there. (See

Linder, supra, 23 Cal.4th at p. 436.)

III. DISPOSITION

As noted ante, the trial court denied the motion for class

certification in its entirety on ascertainability grounds. That

17

The record developed below does not establish whether

Rite Aid sold Ready Set Pools in other sizes during the class

period. If so, the class definition’s reference to purchasers of “the

Ready Set Pool” (italics added) may require clarification, to

establish that only purchasers of the model measuring eight feet

by 25 inches are included within the class. This flaw within the

definition would not, however, mean that the class is not

ascertainable.

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NOEL v. THRIFTY PAYLESS, INC.

Opinion of the Court by Cantil-Sakauye, C. J.

court also denied certification of the proposed CLRA class on the

basis that common issues did not predominate. Because we do

not address the latter aspect of the trial court’s ruling here,

overturning its ascertainability determination would not, by

itself, make a CLRA class viable. The trial court also offered a

third justification for denying class certification that was

ambiguous in its scope. It is unclear whether the trial court had

only the proposed CLRA class in mind when it determined that

a class action would not be superior to the alternatives, or

whether this conclusion applied to the entirety of the action. It

also cannot be discerned from this vantage point whether the

court’s erroneous view of ascertainability informed its analysis

on this issue. Because of these uncertainties, we reverse the

judgment below and remand the case to the Court of Appeal

with directions to remand the matter to the superior court for

further proceedings consistent with our decision.

CANTIL-SAKAUYE, C. J.

We Concur:

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

GROBAN, J.

44

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Noel v. Thrifty Payless, Inc.

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 17 Cal.App.5th 1315

Rehearing Granted

__________________________________________________________________________________

Opinion No. S246490

Date Filed: July 29, 2019

__________________________________________________________________________________

Court: Superior

County: Marin

Judge: Paul M. Haakenson

__________________________________________________________________________________

Counsel:

Emergent Legal, Emergent, Christopher Wimmer, Peter Roldan; Public Justice, Leslie Brueckner and Karla

Gilbride for Plaintiff and Appellant.

Chavez & Gertler, Mark A. Chavez; Public Citizen Ligation Group and Allison M. Zieve for Public Citizen

as Amicus Curiae on behalf of Plaintiff and Appellant.

Rock Law, Matt J. Malone; Nelson & Fraenkel, Gretchen M. Nelson; Arbogast Law and David M.

Arbogast for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiff and Appellant.

Lieff Cabraser Heimann & Bernstein, Robert J. Nelson, Roger N. Heller and Melisa Gardner for National

Consumer Law Center and National Association of Consumer Advocates as Amici Curiae on behalf of

Plaintiff and Appellant.

Jocelyn D. Larkin and Daniel Nesbit for Impact Fund, California Employment Lawyers Association,

Centro Legal de la Raza, Legal Aid at Work and Worksafe as Amici Curiae on behalf of Plaintiff and

Appellant.

Kelly, Hockel & Klein, Klein, Hockel, Iezza & Patel, Michael D. Early and Mark P. Iezza for Defendant

and Respondent.

Utrecht & Lenvin and Paul F. Utrecht for Washington Legal Foundation and California Retailers

Association as Amici Curiae on behalf of Defendant and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Leslie Brueckner

Public Justice

475 14th Street, Suite 610

Oakland, CA 94612

(510) 622-8205

Michael D. Early

Klein, Hockel, Iezza & Patel

455 Market Street, Suite 1480

San Francisco, CA 94105

(415) 951-0535