Baker et al v. Castle & Cooke Homes Hawaii, Inc. et al

Filing 142

ORDER ADOPTING MAGISTRATE JUDGE'S RECOMMENDATION THAT CLASS BE CERTIFIED re 126 ; 127 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 4/28/2014. " The court adopts the Magistrate Judge's recommendation that a class be certified with regard to Plaintiffs' claims against C&C for breach of contract (Count I), product liability (Count II), negligence (Count III), strict liability (Count IV ), breach of implied warranty of habitability (Count V), breach of wa rranty of merchantability (Count VI), and breach of express warranty (Count VII). The court also adopts the Magistrate Judge's recommendation that certification be denied as to Plaintiffs' claim against C&C under Hawaii's UDAP law (Co unt XIII), but gives Plaintiffs leave to amend their Complaint to add new named Plaintiffs for the UDAP claim and, if Plaintiffs so choose, for possible subclasses." The court modifies the recommendation of the Magistrate J udge with respect to the class definition. The class is defined as: All individual and entity homeowners who own homes constructed with brass fittings made from UNS C36000 or UNS C37700 brasses in the housing development known as Mililani Mauka, located in the City and County of Honolulu, Island of Oahu, and all homeowners' associations whose members consist of such individual and entity homeowners. A fitting is defined as a piping component used to joinor terminate sections of pipe or to provide changes of direction or branching in a pipe system. The class definition specifically excludes (1) all individuals, entities and associations of homeowners whose homes haveonly fittings that are compliant with ASTM F877 -89 or ASTM F877-93, which standards are included in the 1994 (ASTM F877-89) and 1997 (ASTM F877-93) Uniform Plumbing Codes; (2) any affiliate or employee of Defendant's; and(3) any judicial officer who has presided or will preside over this cas e. The current class representatives shall be John Pupuhi Baker, Jr., Diane T. Baker, Branden H. Baker, and Kim Salva Cruz Baker. The current class counsel shall be Melvin Y. Agena, Esq., of the Law Offices of Me lvin Y. Agena; Glenn K. Sato, Esq., of the Law Office of Glenn K. Sato; and Graham B. LippSmith, Esq., and Celene S. Chan, Esq., of Girardi Keese." (emt, )CERTIFICATE OF SERVICEParticipants register ed to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JOHN PUPUHI BAKER, JR.,
individually and as Trustee
of the Revocable Trust of
John Pupuhi Baker, Jr.; DIANE
T. BAKER, individually and as
Trustee of The Revocable
Trust of Diane Theresa Baker;
BRANDEN H. BAKER; KIM SALVA
CRUZ BAKER, individually and
on Behalf of a Class of All
Persons Similarly Situated,

)
)
)
)
)
)
)
)
)
)
)
)
Plaintiffs,
)
vs.
)
)
CASTLE & COOKE HOMES HAWAII, )
INC., a Hawaii Corporation;
)
ZURN INDUSTRIES, LLC, a
)
Delaware Limited Liability
)
Corporation; ZURN PEX, INC., )
a Delaware Corporation; S.H. )
LEGITT Co., a Michigan
)
Corporation d/b/a MARSHALL
)
BRASS; WATTS RADIANT, INC., a )
Delaware Corporation; WATTS
)
WATER TECHNOLOGIES, INC., a
)
Delaware Corporation; JOHN
)
and JANE DOES 1-100; DOE
)
PARTNERSHIPS 1-100; DOE
)
CORPORATIONS 1-100; DOE
)
GOVERNMENTAL AGENCIES 1-100; )
and DOE ASSOCIATIONS 1-100,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 11-00616 SOM-RLP
ORDER ADOPTING MAGISTRATE
JUDGE’S RECOMMENDATION THAT
CLASS BE CERTIFIED

ORDER ADOPTING MAGISTRATE JUDGE’S
RECOMMENDATION THAT CLASS BE CERTIFIED
I.

INTRODUCTION.
Defendant Castle & Cooke (“C&C”) objects to the

Magistrate Judge’s findings and recommendation (“F&R”) relating
to Plaintiffs’ motion for certification of a class of homeowners
in the Mililani Mauka development whose plumbing systems have
been constructed with allegedly defective brass fittings.

C&C

argues that the Magistrate Judge erred in recommending
certification because the proposed class fails to satisfy Rule 23
of the Federal Rules of Civil Procedure.

In particular, C&C

objects to the Magistrate Judge’s findings that there are
questions of law or fact common to the class (the “commonality”
requirement”); that the representative parties will fairly and
adequately protect the interests of the class (the “adequacy”
requirement); that common questions predominate over questions
affecting only individual members (the “predominance”
requirement); and that a class action is superior to other
available methods for adjudicating the controversy (the
“superiority” requirement).
The court reviews de novo the portions of the F&R that
have been objected to.

While modifying the Magistrate Judge’s

reasoning in part, the court adopts his findings that the
proposed class meets Rule 23's requirements.

The court also

adopts the Magistrate Judge’s recommendation that the proposed
2

class be certified, but alters the recommended definition of the
class to ensure that it includes only individuals who have
allegedly been injured.
II.

FACTUAL BACKGROUND.
C&C was the developer and general contractor for

Mililani Mauka, a residential community in central Oahu.
Declaration of Douglas E. Pearson ¶ 4, ECF No. 117-5.

See

Mililani

Mauka was built gradually in increments known as “units,” with
each unit containing several homes.

Id.

The development as a

whole consists of dozens of units, totaling approximately 6000
homes.

Id.
At least some of the homes in Mililani Mauka have

plumbing systems that use cross-linked polyethylene (“PEX”)
piping with brass fittings.
No. 114-3.

Declaration of Randy Kent ¶ 21, ECF

PEX is marketed as a cheaper, easier-to-install, and

longer lasting alternative to traditional copper piping.
tubes are often joined together with brass fittings.

The PEX

Id. ¶ 16.

Plaintiffs allege that the way in which a PEX pipe fits over the
barb of a brass fitting creates a crevice in which water can
accumulate and begin to corrode the fitting.

Id.

Plaintiffs

assert that “high zinc duplex brass” (brass containing more than
37% zinc), made under the “UNS 360000 or UNS 37700 standards,”
rapidly corrodes through a “dezincification” process in which
zinc leaches into water that comes into contact with the brass.

3

Id. ¶¶ 16-17.

Plaintiffs’ expert says that use of this high zinc

brass in PEX systems necessarily leads to “stress corrosion
cracking” and eventually causes the pipes to leak, leading to
water damage.

Id.

Plaintiffs’ expert conducted a “convenience survey” of
four houses in the Mililani Mauka development, extracting a total
of 12 fittings.

Id. ¶ 18.

After studying these samples, he

concluded that it was likely that the “PEX systems installed in
Mililani Mauka homes use fittings made of high zinc duplex
brass.”

Id. ¶ 21.

Plaintiffs’ expert did not, however, purport

to be conducting “a statistically representative sampling” of the
fittings used in Mililani Mauka.

Id. ¶ 18.

C&C claims that

there are “at least four fundamentally different types of
plumbing systems used [in the development,]” and that only one of
the four requires brass fittings.

Pearson Decl. ¶ 6.

C&C does

not indicate the proportion of homes in the development with
brass fittings.

C&C does, however, submit declarations by Kerry

M. Hara and Steven Silva--both of whom managed plumbing companies
that installed some of the systems in Mililani Mauka--stating
that they had not used brass fittings in the units they worked
on.

See Declaration of Kerry M. Hara, ECF No. 117-2; Declaration

of Steven Silva, ECF No. 117-3.
Before 2000, the Honolulu Plumbing Code (modeled on the
1994 Uniform Plumbing Code) barred the use of PEX pipes in

4

plumbing systems.
114-23.

See Declaration of Fred Volkers ¶ 15, ECF No.

In 2000, the Honolulu Plumbing Code was amended to allow

PEX pipes that “compl[ied] with [a manufacturing standard known
as] ASTM F877-93," which “requires the use of compression
fittings with a corrosion resistant insert stiffener.”
17.

Id. at

Plaintiffs claim that the brass fittings they examined in

the four Mililani Mauka homes “used [a] non-approved fitting
system designated ASTM F1807” and therefore violated the Honolulu
Plumbing Code.

Id. ¶ 19.

C&C, on the other hand, contends that

some brass fittings in Mililani Mauka “are stamped compliant with
F877,” and only some “are stamped compliant with F1807.”
in Opp. at 14, ECF No. 117.

Memo.

C&C points to photographs of yellow

brass fittings that appear to have “F877" etched on them, though
it is not clear from which homes these fittings were extracted.
See ECF No. 119-2.

C&C also provides the court with “project

manuals” for three homes in Mililani Mauka.
117-13, 117-14.

See ECF Nos. 117-12,

The project manuals appear to have been produced

by architects or engineers and to identify the materials for
various parts of homes.

The project manuals all state that the

fittings used in the plumbing system were to comply with F877.
Id.
Plaintiffs’ expert claims that PEX systems have not
been made using high zinc duplex brass since 2009, after the
promulgation of a new National Sanitation Foundation standard

5

that requires the brass used in PEX systems to pass a corrosion
resistance test.

Kent Decl. ¶ 25.

Plaintiffs’ expert further

claims that “the corrosion and premature failure of high zinc
duplex brass fittings [has] been known in the plumbing industry
for many decades.”

Id. ¶ 27.

The named Plaintiffs in this putative class action are
John Pupuhi Baker, Jr., and his wife, Diane T. Baker, who live in
a house on Ukuwai Street; and Branden H. Baker and his wife, Kim
Salva Cruz Baker, who live in a house on Halepahu street.
First Amended Complaint ¶¶ 3-5, ECF No. 7.

See

Both houses were

among the four from which fittings were removed and inspected by
Plaintiffs’ expert.

See Kent Depo., ECF No. 118-20.

John and

Diane purchased their home in 2005, while Branden and Kim
purchased theirs in 2003. FAC ¶¶ 3-5.

C&C claims that “[s]ince

2000 there have been at least four different forms of limited
warrant[y] provided to homeowners in Mililani Mauka.”
Decl. ¶ 8.

Pearson

A one-year limited warranty was allegedly “generally

used up to around 2003," but “[a]fter 2003, a completely
different warranty program came into effect using two versions of
a ten-year homebuilder’s limited warranty.”

Id. ¶¶ 9-10.

Of

particular note, the two ten-year warranties both contain a
binding arbitration clause, while the earlier one-year warranties
do not.

6

At the hearing on the present motion, Plaintiffs’
counsel admitted that all the named Plaintiffs had binding
arbitration clauses in their warranties.
On January 31, 2014, the Magistrate Judge issued his
F&R.

ECF No. 126.

He found that the putative class met Rule

23(a)'s numerosity, commonality, typicality, and adequacy
requirements, as well as Rule 23(b)(3)'s predominance and
superiority requirements.

He therefore recommended certifying

the following class:
All eligible individuals and entity
homeowners who own homes constructed with
brass fittings in the housing development
known as a Mililani Mauka, located in the
City and County of Honolulu, Island of Oahu,
State of Hawai’i, and all homeowners
associations whose members consist of such
individual and entity homeowners.
Id. at 30.
The Magistrate Judge recommended certifying the class
for “claims against C&C for breach of contract (Count I), product
liability (Count II), negligence (Count III), strict liability
(Count IV), breach of implied warranty of habitability (Count V),
breach of warranty of merchantability (Count VI), and breach of
express warranty (Count VII).”

Id.

The Magistrate Judge,

however, recommended against certification as to Plaintiffs’
claim against C&C under Hawaii’s Unfair and Deceptive Practices
Act (“UDAP”) statute (Count XIII).

Id.

The Magistrate Judge

concluded that the proposed representative Plaintiffs lacked
7

standing to bring Count XIII because it was based on conduct by
C&C that allegedly occurred in 2006, after the named Plaintiffs
had bought their respective homes.
III.

Id. at 21.

STANDARD OF REVIEW.
This court reviews the F&R in accordance with Local

Rule 74.2, which requires this court to "make a de novo
determination of those portions of the report . . . to which
objection is made."

L.R. 74.2.

The de novo standard requires

the district court to consider a matter anew and arrive at its
own independent conclusions.
F.2d 614, 617 (9th Cir. 1989).

See United States v. Remsing, 874
This court may accept, reject, or

modify, in whole or in part, the F&R.
IV.

See id.

CLASS ACTION STANDARD.
“As the party seeking class certification, [Plaintiffs]

bear[] the burden of demonstrating that [they have] met each of
the four requirements of Rule 23(a) and at least one of the
requirements of Rule 23(b).”

Zinser v. Accufix Research Inst.,

Inc., 253 F.3d 1180 (9th Cir. 2001).

Rule 23(a) states:

One or more members of a class may sue or be
sued as representative parties on behalf of
all only if:
(1) the class is so numerous that joinder of
all members is impracticable;
(2) there are questions of law or fact common
to the class;

8

(3) the claims or defenses of the
representative parties are typical of the
claims or defenses of the class, and
(4) the representative parties will fairly
and adequately protect the interests of the
class.
Fed. R. Civ. P. 23(a).
Plaintiffs seek to certify this class under Rule
23(b)(3), which requires that:
the court finds that the questions of law or
fact common to the members of the class
predominate over any questions affecting only
individual members, and that a class action
is superior to other available methods for
the fair and efficient adjudication of the
controversy.
Fed. R. Civ. P. 23(b)(3).
“[T]he district court facing a class certification
motion is required to conduct ‘a rigorous analysis’ to ensure
that the Rule 23 requirements are satisfied.”

Conn. Ret. Plans &

Trust Funds v. Amgen Inc., 660 F.3d 1170, 1175 (9th Cir. 2011).
“Rule 23 does not set forth a mere pleading standard.

A party

seeking class certification must affirmatively demonstrate his
compliance with the Rule--that is, he must be prepared to prove
that there are in fact sufficiently numerous parties, common
questions of law or fact, etc.”

Wal-Mart Stores, Inc. v. Dukes,

131 S. Ct. 2541, 2551 (2011) (emphasis in original).

Analyzing

whether Rule 23's prerequisites have been met will “frequently
entail overlap with the merits of the plaintiff's underlying

9

claim . . . [because] class determination generally involves
considerations that are enmeshed in the factual and legal issues
comprising the plaintiff's cause of action.”

Comcast Corp. v.

Behrend, 133 S. Ct. 1426, 1432 (2013).
V.

ANALYSIS.
For the class to be certified, Plaintiffs must

demonstrate compliance with Rule 23(a)’s numerosity, commonality,
typicality, and adequacy requirements, as well as Rule 23(b)(3)’s
predominance and superiority requirements.

While C&C objects to

the Magistrate Judge’s F&R only with regard to commonality,
adequacy, predominance, and superiority, the six requirements are
sufficiently inter-related that this court reviews de novo
Plaintiffs’ compliance with each requirement.
A.

Rule 23(a).
1.

Numerosity.

Rule 23's numerosity requirement is satisfied when “the
class is so large that joinder of all members is impracticable.”
Fed. R. Civ. P. 23(a)(1).

“Although the absolute number of class

members is not the sole determining factor, where a class is
large in numbers, joinder will usually be impracticable.”

Jordan

v. Los Angeles Cnty., 669 F.2d 1311, 1319 (9th Cir. 1982).
“[G]enerally, courts will find that the numerosity requirement
has been satisfied when the class compr[ises] 40 or more members
and will find that it has not been satisfied when the class
10

comprises 21 or fewer.”

McCluskey v. Trustees of Red Dot Corp.

Employee Stock Ownership Plan & Trust, 268 F.R.D. 670, 674 (W.D.
Wash. 2010) (internal quotation omitted) (surveying cases).
However, a class may be certified even when the exact membership
of the class is not immediately ascertainable, as long as
Plaintiffs demonstrate that it is large enough that joinder is
impracticable.

See, e.g., McMillon v. Hawaii, 261 F.R.D. 536,

542 (D. Haw. 2009) (“Courts need not determine the exact size of
a class in order to find numerosity satisfied.”).
Defendants do not object to the Magistrate Judge’s
finding of numerosity.

The Magistrate Judge noted that the court

need not accept as true Plaintiffs’ allegation that all 6000
homes in Mililani Mauka contain the allegedly defective fittings.
Instead, the Magistrate Judge noted that a court “may make
commonsense assumptions to support a finding that joinder would
be impracticable,” and that “commonsense dictates that, in the
very least, the homes in Plaintiffs’ two units, as well as the
homes in the [units containing the other two homes sampled by
Plaintiffs’ expert] contain PEX systems.”

F&R at 12, ECF No. 126

(citing R.P.-K. ex rel. C.K. v. Dep't of Educ., Hawaii, 272
F.R.D. 541, 547 (D. Haw. 2011)).

The Magistrate Judge concluded

that the homes in these four units alone were likely to number
over forty, and that Plaintiffs therefore satisfied Rule 23's
numerosity requirement.

Id.

11

A court should “rely on ‘common sense’ to forgo precise
calculations and exact numbers” when a plaintiff “show[s]
sufficient circumstantial evidence specific to the products,
problems, parties, and geographic areas actually covered by the
class definition to allow [the court] to make a factual finding.”
Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 596 (3d Cir. 2012).
The fittings from the four homes constitute sufficient
circumstantial evidence to meet the numerosity requirement.

As

the Magistrate Judge correctly noted, Mililani Mauka was
constructed in “units,” with each unit containing several homes,
which suggests that multiple homes within the same unit likely
had similar plumbing systems.

All four homes sampled appear to

be in different units, and it is likely that at least some other
homes in each of those units contain similar fittings.

It is

very plausible, therefore, that a sufficiently numerous class
exists even on the basis of just the four units in which fixtures
were tested.
Moreover, nothing in the record suggests that these
sampled units are in some way anomalous–-if all four units tested
contain some homes with PEX systems, it stands to reason that
there will be at least some other units in the dozens in Miliani
Mauka that also have PEX systems.
contradict such a conclusion.

C&C produces no evidence to

At most, C&C suggests that not all

homes within the development utilize PEX systems.

12

But even if

only 1 in 150 homes contained such systems, the class would be
sufficiently numerous to be certified.

C&C neither argues that

Plaintiffs have cherry-picked their examples nor provides
statistical evidence suggesting that large numbers of units
contain no PEX systems.

Overall, therefore, the record indicates

that there are at least 40 potential class members, and very
likely many more.

While the exact number of homeowners within

the class cannot be determined at this stage, there is sufficient
evidence that the class is so numerous that joinder is
impracticable.
2.

Commonality.

“Commonality exists where class members' situations
share a common issue of law or fact, and are sufficiently
parallel to insure a vigorous and full presentation of all claims
for relief.”

Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d

1168, 1172 (9th Cir. 2010).

“The existence of shared legal

issues with divergent factual predicates is sufficient, as is a
common core of salient facts coupled with disparate legal
remedies within the class.”

Hanlon v. Chrysler Corp., 150 F.3d

1011, 1019 (9th Cir. 1998).

Not “every question of law or fact

must be common to the class; all that Rule 23(a)(2) requires is a
single significant question of law or fact.”

Abdullah v. U.S.

Sec. Associates, Inc., 731 F.3d 952, 957 (9th Cir. 2013)
(internal quotation omitted).

13

Plaintiffs’ claims meet the commonality requirement,
because they “depend upon a common contention . . . [that is] of
such a nature that it is capable of classwide resolution.”
Dukes, 131 S. Ct. at 2551.

That common contention is that high

zinc duplex brass fittings are defective products.

All the

proposed class-members have such fittings, and, if those fittings
are defective, every class-member will have been injured by C&C’s
conduct.

Finding that high zinc fittings are defective is,

therefore, a “common answer[] apt to drive the resolution of
th[is] litigation.”

Id. (emphasis in original).

All of

Plaintiffs’ claims depend on the resolution of this threshold
question, and it alone is sufficient to meet the commonality
requirement as to all claims asserted.
a.

Corrosion at Different Rates.

C&C argues that there cannot be sufficient commonality
because the potential classmembers’ fittings may be corroding at
different rates.

C&C contends that “Plaintiffs’ central claim is

that the brass fittings . . . corrode prematurely,” and that
whether corrosion is premature is “entirely determined by the
rate of corrosion.”
127.

Defendant’s Objection to F&R at 5, ECF No.

In essence, C&C argues that class members have not suffered

the same injury.

See Dukes, 131 S. Ct. at 2551. (“Commonality

requires the plaintiff to demonstrate that the class members have
suffered the same injury.”)(internal quotation omitted).

14

However, if C&C installed a product in Plaintiffs’
homes that is defective–-for example, a product that fails to
comply with governing professional standards, state law, or
warranties provided to homeowners–-then the particular rate of
corrosion in different homes does not necessarily affect C&C’s
liability.

Even if a defective fitting has not yet corroded, C&C

might still be liable for the misconduct of placing a defective
product in a home.

See Wolin, 617 F.3d at 1173 (“[P]roof of the

manifestation of a defect is not a prerequisite to class
certification.”).
The central common question is not whether particular
fittings are in fact corroding prematurely, but whether C&C had
fittings installed that tend to corrode prematurely.

Answering

this common question will be valuable to resolving all class
members’ claims, even if some of them do not manifest injury.1
Of course, if it is determined at trial that the brass fittings
do not corrode prematurely, then it follows that C&C has not
installed a defective product, and C&C will prevail on the
merits.

But the plaintiffs in a product liability suit are not

1

Certain claims could conceivably fail if Plaintiffs are
ultimately unable to demonstrate the manifestation of the defect.
For example, certain class members might arguably not be entitled
to recover for breach of the implied warranty of habitability if
their homes are presently habitable. See Armstrong v. Cione, 6
Haw. App. 652, 659, 736 P.2d 440 (1987) (noting that “breach of
the warranty [must] constitute a constructive eviction of the
tenant”).
15

required to show that they are suffering identical harm at an
identical rate for their claims to be common.

If that were so,

classes in product liability suits could rarely be certified.
b.

Homes Without Defects.

C&C next argues that the potential class members’
claims are not common because “a substantial majority of the
homes in Mililani Mauka . . . do not use the allegedly defective
brass fittings.”

Defendant’s Objection at 8, ECF No. 127.

That

would be a problem if the proposed class included all homeowners
in the Mililani Mauka development, irrespective of whether they
have the allegedly defective fittings or not.
not the class definition at issue.

However, that is

Instead, the class that the

Magistrate Judge recommends be certified includes only those
homeowners with “brass fittings” in their home.

To ensure that

the boundaries of the class are drawn even more precisely, this
court further limits the class to only those Mililani Mauka
homeowners who have “brass fittings made from UNS C36000 or UNS
C37700 brasses.”
At the hearing on the present motion, the court asked
the parties to agree on a class definition that would be neither
over- nor under-inclusive if the court were to certify the class.
The court adopts the parties’ proposed class definition for the
purposes of deciding whether Rule 23's pre-requisites are met.
Without waiving any objection to class certification, Defendants

16

agree that a definition limiting the class to individuals with
“brass fittings made from UNS C36000 or UNS C37700" would be
preferable to a class definition that defines the class as
including all those with “brass fittings” or one that specifies a
particular level of zinc.
This more detailed class definition ensures that all
the members of the class have suffered the same alleged injury,
and all have Article III standing to bring a claim against C&C.
See Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 594 (9th
Cir. 2012) ("No class may be certified that contains members
lacking Article III standing.") (quoting Denney v. Deutsche Bank
AG, 443 F.3d 253, 264 (2d Cir. 2006)).

Individuals without brass

fittings made from UNS C36000 or UNS C37700 are simply not within
the class, and therefore do not affect the commonality and
predominance inquiries.
The present record does not identify everyone within
the class.

Plaintiffs contend that UNS C36000 or UNS C37700

brasses are used in all 6000 homes in Mililani Mauka.

This court

is not required to assume this to be so, and C&C provides
significant evidence suggesting that it is not.

See, e.g., Hara

Decl. ¶ 7, ECF No. 117-2; Silva Decl. ¶ 11, ECF No. 117-3.
But this is an ascertainability issue, not a
commonality issue.

In other words, C&C’s argument is not that

those within the class do not suffer common injury, but that

17

there is no way of knowing who has suffered common injury and
therefore who is within the class.

While the Ninth Circuit has

not spoken explicitly on the issue, C&C points out that “[b]efore
a class may be certified, it is axiomatic that such a class must
be ascertainable.”

Vandervort v. Balboa Capital Corp., 287

F.R.D. 554, 557 (C.D. Cal. 2012).

See also Williams v. Oberon

Media, Inc., 468 Fed. Appx. 768, 770 (9th Cir. 2012) (affirming
denial of class certification for lack of ascertainability);
accord Carrera v. Bayer Corp., 727 F.3d 300, 306 (3d Cir. 2013)
(“Class ascertainability is an essential prerequisite of a class
action, at least with respect to actions under Rule 23(b)(3).”)
(internal quotation omitted).

However, “ascertaining [the]

actual identities [of all class members] is not required” at the
class certification stage.

Knutson v. Schwan's Home Serv., Inc.,

2013 WL 3746118, at *5 (S.D. Cal. July 15, 2013).

The key factor

is that the identities be ascertainable at some point in the
litigation.

In other words, “the proposed class definition [must

be] definite enough for the court to [eventually] determine
whether someone is a member of the class.”

Id.

Defining the class as including homeowners in Mililani
Mauka with brass fittings made from UNS C36000 or UNS C37700
brasses in their homes allows a determination at some later point
as to who is and is not a member of the class.

As Plaintiffs’

counsel suggested at the hearing on the present motion, there are

18

numerous methods for identifying who does and does not have high
zinc duplex brass fittings.

For many of the homes, there will be

purchase reports noting the types of materials used in
construction.

For homes for which such records do not exist, a

certain number of fittings can be visually examined to see if
they are marked ASTM F1807, or otherwise reveal themselves to
made from UNS C36000 or UNS C37700 brass.

Appropriate

statistical techniques could be used to make inferences about the
remaining homes, after a certain number of homes in a unit have
been sampled.
Counsel for C&C suggested at the hearing on the present
motion (though not in briefing) that Plaintiffs are required to
articulate a more precise methodology for ascertaining class
size, in light of the Supreme Court’s recent decision in Comcast.
Comcast involved the issue of whether a class may be certified
even if the plaintiffs are unable to show that “[q]uestions of
individual damage calculations will [not] overwhelm questions
common to the class.”

Id. at 1433.

The plaintiffs in Comcast

asserted four theories of antitrust injury.

The district court

accepted one of the theories–-the “overbuilder” theory--as
capable of classwide resolution, but rejected the rest.

The

plaintiffs’ methodology for calculating damages involved an
aggregate damage value for all four theories; the plaintiffs
could not isolate the damages relating solely to the

19

“overbuilder” theory.

The Supreme Court concluded that damages

in the case were not “capable of measurement on a classwide
basis,” and that the proposed class therefore did not meet the
predominance requirement.

Id. at 1433.

While the

ascertainability inquiry is not congruent with that for
predominance, C&C appears to be implying that the analyses are
analogous.

That is, C&C appears to be arguing that a class may

not be certified unless Plaintiffs provide a precise methodology
regarding how to eventually ascertain future class members.
Even if this court read Comcast that expansively, C&C’s
argument would be unavailing.

In Comcast, the plaintiffs could

not “possibly establish that damages [were] susceptible of
measurement across the entire class.”

Id.

Because damage

calculations in antitrust cases are entirely dependent on expert
evidence, and because the relevant expert evidence was fatally
flawed, there was nothing in Comcast to suggest that damages
could ever be calculated on a classwide basis.

Even if classwide

liability could have been established, the plaintiffs presented
nothing indicating that the case would not devolve into
“labyrinthine individual [damage] calculations.”

Id. at 1434.

Here, however, Plaintiffs have made numerous suggestions
regarding how to ascertain the identities of class members.

As

stated above, purchase reports, physical inspection, and sampling
all provide potential ways of ascertaining class members.

20

At

worst, certain methods such as chemical testing might turn out to
be prohibitively expensive.

But the parties might stipulate to

simpler proxies for class membership.

They might, for example,

agree that every home that has a fitting stamped “ASTM F1807" is
presumptively within the class, or that once a certain percentage
of a unit has been shown to have high zinc fittings, the rest of
the homes in the unit may be assumed to have the same fittings.
C&C contends only that ascertaining membership will be
difficult, not impossible.

That is a crucial distinguishing

feature from Comcast, in which the plaintiffs made no showing
that it was even possible to establish classwide damages.
Moreover, as the dissenting opinion in Comcast points
out, that case was an “oddity . . . [because] the need to prove
damages on a classwide basis through a common methodology was
never challenged by [plaintiffs].”
Breyer, JJ., dissenting).

Id. at 1437 (Ginsburg and

Prior to Comcast, it was a “black

letter rule” that plaintiffs need not demonstrate at the
certification stage that damages were calculable on a classwide
basis.

Id.

It is not clear that Comcast purported to alter that

rule; the ruling may have been “good for [a] day and case only”
and not applicable to “the mine run of cases.”

Id.

Even if

Comcast did alter the predominance requirement with respect to
damage calculations, it is not clear that Comcast’s reasoning
applies to the ascertainability requirement.

21

Unlike a damage

calculation method in an antitrust case, which an expert may
construct in the abstract, ascertaining exact class membership
may depend on further discovery and the course of the litigation.
Here, for example, the parties cannot yet say how many class
members can be discerned from purchase reports, but that may
become clear as discovery proceeds.

Similarly, the contours of

the class may be shaped by summary judgment motions on various
claims and defenses, which could considerably narrow the group of
individuals to be sampled.

In other words, the methodology that

might be appropriate for determining class membership at the end
of litigation, whether for settlement or trial purposes, may be
very different from the hypothetical methodology suggested at the
certification stage.

It thus makes little sense to deny

certification based on the absence of such a hypothetical
methodology.
The court therefore concludes that Plaintiffs are not
required to demonstrate precisely who has high zinc fittings at
the certification stage, so long as “an individual [will be able]
to identify himself or herself as a member of the putative class”
if necessary for damages or settlement purposes later in the
litigation.

Knutson, 2013 WL 3746118, at *5.

22

c.

Homes With Fittings Stamped ASTM F877.

In a similar argument, C&C contends that commonality is
defeated by the inclusion in some homes in Mililani Mauka of
fittings marked “F877."

As Plaintiffs themselves agree, fittings

marked "F877" comply with the ASTM F877 standard, which means
that they have "corrosion resistant insert stiffeners."
¶ 28.

FAC

"[ASTM], formerly known as the American Society for

Testing and Materials, is an organization that develops
consensus-based standards in industries such as construction and
consumer products, to facilitate uniformity and good practices
for developers, builders, and contractors in the construction of
new homes across the United States."

FAC ¶ 25.

“F877" comply with the Honolulu Plumbing Code.

Fittings marked
Therefore, like

homeowners who do not have high zinc fittings at all in their
home, homeowners with only F877 fittings are not class members.
Far from defeating commonality, those not in the class have no
impact on the commonality inquiry.
Finally, C&C claims that commonality is defeated
because the various plumbing systems in Mililani Mauka have been
developed by different manufacturers.

However, if two brass

fittings are similarly defective, their manufacture by different
entities is irrelevant.

None of Plaintiffs’ claims depends in

any way on all of the class members’ fittings having been made by
any one specific manufacturer.

23

3.

Typicality.

C&C does not appear to challenge the Magistrate Judge's
finding that the proposed class meets Rule 23's typicality
requirement.

"[R]epresentative claims are ‘typical' if they are

reasonably co-extensive with those of absent class members; they
need not be substantially identical."

Hanlon, 150 F.3d at 1020.

The "commonality and typicality requirements of FRCP 23(a) tend
to merge."

Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d

1036, 1041 (9th Cir. 2012).

Here, the common injury suffered by

the class is also suffered by the potential class
representatives, and the typicality requirement is satisfied.
The court adopts the Magistrate Judge's well-reasoned finding as
to typicality.
4.

Adequacy.

C&C also challenges certification based on what it says
is the inadequacy of the class representatives.

The Magistrate

Judge found that the named Plaintiffs were adequate class
representatives for all but one of the claims against C&C.

The

one claim that the Magistrate Judge declined to certify was the
UDAP claim.

The Magistrate Judge concluded that none of the

named Plaintiffs had standing to bring the UDAP claim because
that claim pertained to conduct allegedly occurring after 2006,
and all four named Plaintiffs had purchased their homes before
then.

On the appeal before this court, Plaintiffs do not appear

24

to challenge that conclusion, or to argue that any of the named
Plaintiffs has been subject to a UDAP violation.

See Hawkins v.

Comparet-Cassani, 251 F.3d 1230, 1238 (9th Cir. 2001) (“A named
plaintiff cannot represent a class alleging [] claims that the
named plaintiff does not have standing to raise.”).

This court

therefore adopts the Magistrate Judge’s recommendation that
certification be denied with respect to the UDAP claim, and that
Plaintiffs be granted leave to amend their Complaint in that
regard (e.g., by adding Plaintiffs who can allege a UDAP injury).
C&C’s adequacy concerns with respect to the non-UDAP
claims relate to the named Plaintiffs’ alleged unfamiliarity with
the case and lack of participation in “litigation decisions.”
C&C claims that the named Plaintiffs “lack any understanding
about the components of the plumbing systems” and have only a
“vague understanding that there’s ‘something wrong’ with their
plumbing.”

Memo in Opp. at 25-26, ECF No. 117.

C&C further

states that the named Plaintiffs did not help decide “what claims
would be asserted or what parties would be sued” and are “relying
totally on their attorneys as to whether the allegations in the
complaint are correct.”

Id.

It is true that “class representative status may
properly be denied where the class representatives have so little
knowledge of and involvement in the class action that they would
be unable or unwilling to protect the interests of the class

25

against the possibly competing interests of the attorneys.”
Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 61
(2d Cir. 2000) (internal quotation omitted).

However, “[i]t is

hornbook law . . . [that] in a complex lawsuit, [when] the
defendant's liability can be established only after a great deal
of investigation and discovery by counsel against a background of
legal knowledge, the representative need not have extensive
knowledge of the facts of the case in order to be an adequate
representative.”

Gunnells v. Healthplan Servs., Inc., 348 F.3d

417, 430 (4th Cir. 2003).

While the named Plaintiffs do not

appear to know either the technical aspects of plumbing
construction or the legal elements of some of their claims, the
record does not suggest that they “have abdicated any role in the
case beyond that of furnishing their names as plaintiffs.”
v. Aerotek, 278 F.R.D. 516, 529-530 (C.D. Cal. 2011).

Pryor

Instead,

the named Plaintiffs appear to believe that their plumbing
systems have a construction defect and are sincere in their
desire to explore any misconduct by C&C.

See, e.g., Diane Baker

Decl. ¶¶ 4-5, ECF No. 114-19; Brandon Baker Depo. at 55-56, ECF
No. 120-1.
C&C does not explain why the named Plaintiffs’ lack of
scientific or legal understanding will make them “unable or
unwilling to protect the interests of the class against the
possibly competing interests of the attorneys."

26

Baffa, 222 F.3d

at 61.

If the case is settled, then the adequacy of the

settlement will be independently assessed by the court.

If the

case continues on to judgment, nothing in the record suggests
that the named Plaintiffs will not vigorously pursue the claims
of absent class members.

C&C’s general attack on the named

Plaintiffs’ lack of specialized knowledge, without more, is
insufficient to establish that they will be inadequate
representatives for the class.
If further discovery or future decisions made during
the course of the litigation reveal that the named Plaintiffs are
unable to adequately represent the interests of the class, the
court retains the flexibility to modify certification as
appropriate.

See Cummings v. Connell, 316 F.3d 886, 896 (9th

Cir. 2003) (“Class certification is not immutable, and class
representative status could be withdrawn or modified if at any
time the representatives could no longer protect the interests of
the class.”).

At this stage, the court adopts the Magistrate

Judge’s finding that the named Plaintiffs are adequate class
representatives.
B.

Rule 23(b)(3).
1.

Predominance.

"The Rule 23(b)(3) predominance inquiry tests whether
proposed classes are sufficiently cohesive to warrant
adjudication by representation."

27

Amchem Products, Inc. v.

Windsor, 521 U.S. 591, 623 (1997).

"Though there is substantial

overlap between the [commonality and predominance] tests, the
[predominance] test is far more demanding"
1172 (internal quotation omitted).

Wolin, 617 F.3d at

A class cannot meet the

predominance standard if questions relevant to individual claims
"will inevitably overwhelm questions common to the class."
Comcast, 133 S. Ct. at 1433.
C&C first argues that the class cannot meet the
predominance requirement because multiple homes in Mililani Mauka
do not contain high zinc brass fittings, or have fittings
compliant with ASTM F877.

However, as discussed above,

homeowners without the allegedly defective fittings or with
fittings compliant with ASTM F877 are outside of the class and
therefore do not affect the Rule 23 prerequisites.
a.

Different Warranties.

C&C next argues that the predominance requirement is
unsatisfied because “different owners will have recourse to
different relief under product manufacturer class action
settlements or applicable warranties.”
8, ECF No. 127.

Defendant’s Objection at

C&C emphasizes in particular four different

warranties issued by C&C over the eighteen years that Mililani
Mauka has been in development, and the “remarkably different
terms” in the four warranties.

Id.

28

Predominance can be satisfied if the different
agreements “all warrant [class members] against the same things.”
Brunson v. Louisiana-Pac. Corp., 266 F.R.D. 112, 119 (D.S.C.
2010).

If each warranty agreement contains a provision that

indemnifies the holder against the harm alleged, then holders of
all four warranties share an important common question.

If the

warranties differ only in ways that are irrelevant to Plaintiffs’
claims, a class may still be certified.
Each of the four warranty agreements at issue in this
case contains a provision indemnifying residents against
defective plumbing equipment.

The first form of agreement, which

C&C says was in effect until 2002, warrants residents against
“substantial defects in materials” used in their homes and
defines a defective material as one that “fails to function
within accepted building industry standards due to deficiency in
design, materials or workmanship.”

See ECF No. 117-15.

The

second form, which C&C contends was in effect between 2002 and
2003, warrants against any “defects in equipment, material or
workmanship of the [h]ome,” judged by conformity with state law
and “normal industry practices of the community.”
117-16.

See ECF No.

The third form, apparently in effect from 2003 to 2007,

warrants against construction defects that, among other things,
“result in the inability of the [home] . . . to provide the
functions that can reasonably be expected in a residential

29

dwelling.”

See ECF No. 117-17.

Whether a product is defective

under this third warranty agreement depends on its conformity
with standards defined in a separate document that C&C gave
homeowners upon purchase of a home, and conformity with
professional and community standards more generally.

The fourth

form, in use after 2007, also warrants against construction
defects, similarly defined by the terms of C&C’s separately
provided documents and professional and community standards.

See

ECF No. 118-1.
A determination that the use of high zinc duplex brass
fittings is not in conformity with state law and/or professional
and community standards is highly relevant to all potential class
members, irrespective of which of the four warranty agreements
they hold.

That is not to say that all four warranties will

ultimately allow recovery on a breach of warranty theory, but,
deciding whether or not the fittings are defective is undoubtedly
a “common answer[] apt to drive the resolution” of each class
member’s breach of express warranty claim.

Dukes, 131 S. Ct. at

2551 (citation omitted).
No individual issues regarding the warranty agreements
overwhelm this common question.

The main “individual” issues

that C&C identifies as arising from the differing warranty
agreements are the presence of a provision preempting implied
warranty claims in the second agreement, and binding arbitration

30

clauses in the third and fourth agreements.

While the presence

of these provisions may mean that some plaintiffs will be unable
to prevail on some of the claims alleged in the Complaint, it
does not follow that individual issues predominate over common
ones.

Indeed, these four separate warranties, rather than

raising “individual” issues, raise issues that may trigger the
formation of subclasses within the broader class of those
individuals with high zinc duplex brass fittings in their homes.
“Under the provisions of Rule 23(c)(4)(B) [now Rule 23(c)(5)], a
class may be divided into subclasses and each subclass treated as
a class with the provisions of the rule to be construed and
applied accordingly to each class.”

Betts v. Reliable Collection

Agency, Ltd., 659 F.2d 1000, 1005 (9th Cir. 1981).

The Rule

23(c)(5) subclass provision is designed for situations like the
one presented here, in which a larger class is divided by issues
common to smaller classes, but joinder of all individual subclass
members is still impracticable.
When confronted with differences in the terms of
various class members’ warranty agreements, courts typically find
it “more appropriate to create subclasses rather than deny
certification outright.”
675, 679 (S.D. Fla. 2009).

Rosen v. J.M. Auto Inc., 270 F.R.D.
See also Bittinger v. Tecumseh

Products Co., 123 F.3d 877, 884 (6th Cir. 1997) (finding class
certification proper despite document signed by some class

31

members releasing defendant from liability);

Collins v. Int'l

Dairy Queen, 168 F.R.D. 668, 677 (M.D. Ga. 1996) (establishing
subclasses when some class members had contracts containing
arbitration provisions); Finnan v. Rothschild & Co., 726 F.Supp.
460, 465 (S.D.N.Y. 1989) (some class members’ releases or
arbitration agreements did not preclude class certification).
No attempt to compel arbitration has been brought to
the court’s attention, and there does not, thus far, appear to be
any conflict of interest among the holders of the four different
warranty agreements.

This court declines to create warranty

subclasses at this stage, noting that, “[e]ven after a
certification order is entered, the [district court] remains free
to modify it in the light of subsequent developments in the
litigation.”
160 (1982).

Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147,
If it becomes apparent during the course of this

litigation that differences arising from the separate warranty
agreements predominate over common class wide questions, this
court may certify subclasses for the different warranty
agreements as necessary.

See United Steel, Paper & Forestry,

Rubber, Mfg. Energy, Allied Indus. & Serv. Workers Int'l Union,
AFL-CIO, CLC v. ConocoPhillips Co., 593 F.3d 802, 809 (9th Cir.
2010) (“a district court retains the flexibility to address
problems with a certified class as they arise”).

32

b.

Limitations Periods.

C&C raises two arguments as to the timeliness of
claims.
First, C&C argues that different class members will
face different limitations periods based on when they discovered
the alleged defect.

In particular, C&C notes that section 657-8

of Hawaii Revised Statutes contains a two-year statute of
limitations period for bringing construction defect claims that
begins to run when “the plaintiff knew or . . . should have
discovered that an actionable wrong has been committed[.]”

Ass'n

of Apartment Owners of Newtown Meadows ex rel. its Bd. of
Directors v. Venture 15, Inc., 115 Haw. 232, 277, 167 P.3d 225,
270 (2007).

According to C&C, different class members may have

discovered the alleged construction defect at different times,
thereby allegedly creating an individual issue that predominates
over any common questions.
It is true that “[e]xamination of whether a particular
plaintiff possessed sufficient information such that he knew or
should have known about his cause of action will [sometimes]
require individual examination of testimony from each particular
plaintiff to determine what he knew and when he knew it.”

Thorn

v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 320 (4th Cir.
2006).

However, “the presence of individual issues of compliance

with the statute of limitations . . . does not [necessarily]

33

defeat the predominance of [] common questions.”
Adams & Co., 547 F.2d 473, 478 (9th Cir. 1976).

Cameron v. E.M.
When there is no

reason to suspect that potential class members have or will
discover product defects at significantly different times, the
presence of a statute of limitations provision, by itself, is
insufficient reason to compel all potential class members to
pursue their claims individually.

As C&C notes, very few

plumbing systems in Mililani Mauka have manifested defects to
date.

It is undisputed that no individual actions have been

brought against C&C by any Mililani Mauka homeowner.

It is

therefore likely that a significant proportion of the potential
class members are similarly situated insofar as they have only
recently discovered the alleged defect, or do not even know of it
yet.
If, through further discovery, it becomes clear that
there are actually significant differences in the limitations
periods affecting individual class members, and that those
differences are so diverse as to be irremediable through the
creation of subclasses, then the court may, in its discretion,
decertify the class if necessary.

However, based on the present

record, C&C only speculates as to the possibility that differing
limitations periods may raise individual issues later in the
litigation.

That is an insufficient ground for denying

certification at this stage.

34

The second timeliness issue identified by C&C concerns
the ten-year statute of repose also contained in section 657-8 of
Hawaii Revised Statutes.

In addition to a two-year limitations

period, section 657-8 contains a statute of repose barring any
action “to recover damages for any injury to property, real or
personal . . . [commenced] more than ten years after the date of
completion of the [property].”

Haw. Rev. Stat § 657-8.

C&C

argues that, given the commencement of this action on July 20,
2011, any certified class must be limited to members whose homes
were completed after July 20, 2001.
Section 657-8 applies to personal injury and property
damage claims.

Whether it also covers claims for breach of

contract or warranty is not entirely clear.

C&C argues that

section 657-8 should be read to encompass contract claims, but
cites no authority that places that question beyond dispute.
Determining that section 657-8 bars the contract claims of some
potential class members would be a merits determination.

A

district court should consider a “merits contention” at the class
certification stage only when it “necessarily overlaps” with
determining one of Rule 23's prerequisites.

Dukes, 131 S. Ct. at

2552; see also Stockwell v. City & Cnty. of San Francisco, 2014
WL 1623736, at *5 (9th Cir. Apr. 24, 2014) (“courts must consider
merits issues only as necessary to determine a pertinent Rule 23
factor, and not otherwise”).

Here, any such overlap is not

35

clearly “necessary.”

Even if there are class members who will be

unable to recover because of section 657-8's ten-year provision,
those class members can be identified when the merits of C&C’s
defense are adjudicated.

That circumstance does not present

“individual” issues that predominate over common questions.
Indeed, if it were required at the certification stage
to exclude all class members whose claims will ultimately fail
because of a meritorious affirmative defense, then it would
necessarily follow that all affirmative defenses would have to be
decided on the merits at the point of certification.
be so.

That cannot

Although many individuals within a class may ultimately

be unable to recover, it would eviscerate the distinction between
the certification and merits inquiries if a court were forced to
exclude at certification those individuals whose claims would not
succeed.

This is particularly so in a case like this one, in

which bringing an individual claim will cost more than any likely
recovery.

Although exclusion from a class, unlike a judgment on

the merits, will technically preserve a plaintiff's claim, that
has little value if the claim cannot be effectively brought
outside of a class action.
c.

Representation of Future Subclasses.

As with questions arising out of the separate warranty
agreements and potentially different limitations periods, a
separate subclass may be required to resolve any litigation over

36

the applicability of the statutes of repose applicable to
Plaintiffs’ claims.

The potential need to create such subclasses

may raise future concerns about the adequacy of representation by
the named Plaintiffs.

For example, all the current named

Plaintiffs have claims within the limitations period, so will not
likely adequately represent class members with claims outside of
it.

Similarly, it may be that none of the named Plaintiffs will

be able to represent future subclasses with warranties different
from theirs.

See, e.g., In re N. Dist. of Cal., Dalkon Shield

IUD Products Liab. Litig., 693 F.2d 847, 855 (9th Cir. 1982) (“To
prove liability under a breach of warranty theory, representative
plaintiffs must exist for each type of warranty[.]”).

In

particular, if all four named Plaintiffs are subject to a binding
arbitration clause, they may be unable to properly represent
class members not subject to such a clause.
While the court declines at this stage to create
subclasses for each warranty agreement, or subclasses for those
who are and are not subject to binding arbitration, it is
important to note that any subclass must independently meet Rule
23's prerequisites.

Betts, 659 F.2d at 1005 (noting that a

subclass “must independently meet all of rule 23's requirements
for maintenance of a class action”).

In other words, each

subclass will require a separate named plaintiff capable of
representing the members of that subclass.

37

If such a

representative is lacking, members of that subclass will be
unable to proceed collectively and will have to litigate their
claims as individuals.
Plaintiffs’ counsel should ensure that there are
sufficient named Plaintiffs such that all potential subclasses
will have adequate representation.

If Plaintiffs intend to amend

their Complaint to add claimants with standing to bring a UDAP
claim, they may wish to consider adding at the same time
claimants subject to each of the four warranty agreements, and,
if they are pursuing claims for those whose homes were
constructed before July, 20, 2001, at least one claimant with a
home built before then.
However, at this early stage, the court declines to
deny certification or compel the addition of new parties based on
speculation as to what future subclasses will be required.
Typically, when subclasses are created, “efficient judicial
administration weighs in favor of allowing an opportunity for a
new and proper class representative to enter the case and
litigate the interests of the subclass.”

Birmingham Steel Corp.

v. Tenn. Valley Auth., 353 F.3d 1331, 1336 (11th Cir. 2003).
Plaintiffs may therefore choose to continue this case with only
four class representatives, so long as they are aware that a
later inability to find an adequate representative for each
subclass could lead to decertification of that subclass.

38

2.

Superiority.

Rule 23(b)(3)’s superiority requirement tests whether
“a class is superior to other available methods for the fair and
efficient adjudication of the controversy.”
23(b)(3).

Fed. R. Civ. P.

The rule itself provides a nonexhaustive list of

factors relevant to the superiority inquiry:
(A) the class members' interests in
individually controlling the prosecution or
defense of separate actions;
(B) the extent and nature of any litigation
concerning the controversy already begun by
or against class members;
(C) the desirability or undesirability of
concentrating the litigation of the claims in
the particular forum; and
(D) the likely difficulties in managing a
class action.
Id.
C&C does not claim that other actions against C&C by
Mililani Mauka residents have been initiated, that there is a
more appropriate forum for this litigation, or that there are
manageability concerns.

Instead, C&C bases its argument that the

class fails to meet the superiority requirement solely on the
first factor--that class members have an interest in prosecuting
individual actions.

However, “[w]here damages suffered by each

putative class member are not large, this factor weighs in favor
of certifying a class action.”

Zinser, 253 F.3d at 1190.

Given

the relatively low monetary value of each individual resident’s
39

claim and the potentially high cost of product liability
litigation, this is a case in which, “[i]f plaintiffs cannot
proceed as a class, [they] will be unable to proceed as
individuals because of the disparity between their litigation
costs and what they hope to recover.”

Local Joint Exec. Bd. of

Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., 244 F.3d
1152, 1163 (9th Cir. 2001) (internal quotation omitted).
C&C responds that class certification would place “an
unnecessary cloud on all of the homes in Mililani Mauka that may
. . . impact a homeowner’s ability to re-finance or sell their
home[].”

Memo. in Opp. at 32, ECF No. 117.

That is not an

argument as to why it would be superior for those with alleged
defects to proceed individually rather than as a class.

Instead,

it is an argument about why it would be better for those with no
alleged defects if those who have alleged defects did not bring
their claims at all.

For a homeowner with alleged defects, there

will likely be the same “cloud” over his or her property whether
the homeowner brings an individual or a class action.

Notably,

C&C provides no reason to think that living with an alleged
defect or bearing the cost of replacement oneself is preferable
to bringing an action, even for homeowners who may wish to sell
or refinance.
Instead, C&C’s primary concern is for those homeowners
without alleged defects, who may have to demonstrate the absence

40

of defects to potential buyers.

However, C&C provides no reason

to think that demonstrating to potential buyers the absence of
high zinc fittings is an especially onerous or costly burden.

In

any event, the collateral effect of litigation on nonmembers is
not one of the factors listed in Rule 23(b)(3).

C&C cites to no

case in which certification was denied on that basis.

In short,

C&C’s speculation as to the interests of those not before the
court is insufficient to defeat certification.
Plaintiffs’ action is exactly the kind of case in which
“litigation costs would dwarf potential recovery . . . [and
therefore] a class action is clearly the preferred procedure.”
Hanlon, 150 F.3d at 1023.

This court adopts the Magistrate

Judge’s finding that the proposed class meets Rule 23(b)(3)’s
superiority requirement.
VI.

CONCLUSION.
The court adopts the Magistrate Judge’s recommendation

that a class be certified with regard to Plaintiffs’ claims
against C&C for breach of contract (Count I), product liability
(Count II), negligence (Count III), strict liability (Count IV),
breach of implied warranty of habitability (Count V), breach of
warranty of merchantability (Count VI), and breach of express
warranty (Count VII).

The court also adopts the Magistrate

Judge’s recommendation that certification be denied as to
Plaintiffs’ claim against C&C under Hawaii’s UDAP law (Count

41

XIII), but gives Plaintiffs leave to amend their Complaint to add
new named Plaintiffs for the UDAP claim and, if Plaintiffs so
choose, for possible subclasses.
The court modifies the recommendation of the Magistrate
Judge with respect to the class definition.

The class is defined

as:
All individual and entity homeowners who own
homes constructed with brass fittings made
from UNS C36000 or UNS C37700 brasses in the
housing development known as Mililani Mauka,
located in the City and County of Honolulu,
Island of Oahu, and all homeowners’
associations whose members consist of such
individual and entity homeowners. A fitting
is defined as a piping component used to join
or terminate sections of pipe or to provide
changes of direction or branching in a pipe
system. The class definition specifically
excludes (1) all individuals, entities and
associations of homeowners whose homes have
only fittings that are compliant with ASTM
F877-89 or ASTM F877-93, which standards are
included in the 1994 (ASTM F877-89) and 1997
(ASTM F877-93) Uniform Plumbing Codes; (2)
any affiliate or employee of Defendant’s; and
(3) any judicial officer who has presided or
will preside over this case.
The current class representatives shall be John Pupuhi
Baker, Jr., Diane T. Baker, Branden H. Baker, and Kim Salva Cruz
Baker.

The current class counsel shall be Melvin Y. Agena, Esq.,

of the Law Offices of Melvin Y. Agena; Glenn K. Sato, Esq., of
the Law Office of Glenn K. Sato; and Graham B. LippSmith, Esq.,
and Celene S. Chan, Esq., of Girardi Keese.

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IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 28, 2014.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Baker et al. v. Castle & Cooke Homes Hawaii, Inc. et al.; Civil No. 11-00616
SOM-RLP; ORDER ADOPTING MAGISTRATE JUDGE’S RECOMMENDATION THAT CLASS BE
CERTIFIED

43