Rutledge v. Hewlett-Packard Co., 238 Cal. App. 4th 1164

Last updated March 21, 2021 02:39:21 am GMT
Rutledge v. Hewlett-Packard Co.

Court of Appeal of California, Sixth Appellate District
July 22, 2015, Opinion Filed
H036790
Reporter
238 Cal. App. 4th 1164 *; 190 Cal. Rptr. 3d 411 **; 2015 Cal. App. LEXIS 645 ***
ED RUTLEDGE et al., Plaintiffs and Appellants, v.

HEWLETT-PACKARD COMPANY, Defendant and
Respondent; BIZCOM ELECTRONICS, INC., Objector Case Summary
and Respondent.
Overview
HOLDINGS: [1]-Fact issues as to whether notebook

Subsequent History: Modified and rehearing denied by
computer components were defective and whether the
Rutledge v. Hewlett-Packard Co., 2015 Cal. App. LEXIS
manufacturer knew of the defects precluded summary
727 (Cal. App. 6th Dist., Aug. 21, 2015)
judgment on a claim under the unfair competition law,
Time for Granting or Denying Review Extended Bus. & Prof. Code, § 17200 et seq., and precluded a no
Rutledge v. Hewlett-Packard Company/Bizcom Elecs, merits determination as to a Consumer Legal Remedies
2015 Cal. LEXIS 10444 (Cal., Oct. 26, 2015) Act, Civ. Code, § 1750 et seq., claim; [2]-An express
warranty could not reasonably be interpreted under Civ.
Review denied by, Request denied by Rutledge v. Code, § 1643, to include a defect not reported within the
Hewlett-Packard Co., 2015 Cal. LEXIS 10869 (Cal., warranty period, but another consumer could maintain a
Nov. 10, 2015) claim alleging an inadequate repair during the warranty
period; [3]-California law could be applied to a
nationwide class consistent with due process and with
Civ. Code, § 1646, because the repairs were performed
Prior History: [***1] Superior Court of Santa Clara in California; [4]-An untimely motion to compel under
County, No. CV817837, James P. Kleinberg, Judge. Code Civ. Proc., § 2025.480, subd. (b), was properly
sanctioned under § 2025.480, subd. (j).
Rutledge (Ed) v. Hewlett-Packard Company, 2012 Cal.

LEXIS 1318 (Cal., Feb. 1, 2012)
Outcome
Affirmed in part and reversed in part.
Core Terms
inverters, notebook, warranty, repair, consumer, display,
screen, trial court, manufacturer, appellants', one-year,
replaced, expiration, nationwide class, sanctions,
defects, warranty period, orders, useful life, documents, LexisNexis® Headnotes
subpoena, breach of express warranty, certification,
motion to compel, faulty, unfair, cause of action,
concealed, triable issue of fact, appellants assert
Page 2 of 25
238 Cal. App. 4th 1164, *1164; 190 Cal. Rptr. 3d 411, **411; 2015 Cal. App. LEXIS 645, ***1
production of his own to make a prima facie showing of

the existence of a triable issue of material fact. Thus,
Civil Procedure > ... > Summary when a defendant moves for summary judgment, he
Judgment > Entitlement as Matter of Law > General must make a prima facie showing, i.e., he must present
Overview evidence that would require a reasonable trier of fact not
to find any underlying material fact more likely than
Civil Procedure > ... > Summary not—otherwise, he would not be entitled to judgment as
Judgment > Burdens of Proof > Movant Persuasion a matter of law, but would have to present his evidence
& Proof to a trier of fact.
HN1[ ] Summary Judgment, Entitlement as Matter

of Law
Civil Procedure > ... > Summary
The purpose of the law of summary judgment or Judgment > Evidentiary Considerations > Absence
summary adjudication is to provide courts with a of Essential Element
mechanism to cut through the parties' pleadings in order
to determine whether, despite their allegations, trial is in
fact necessary to resolve their dispute. As such, Judgment > Burdens of Proof > Nonmovant
California's summary judgment statute, Code Civ. Proc., Persuasion & Proof
§ 437c, provides a particularly suitable means to test the
sufficiency of the plaintiff's prima facie case and/or of
Judgment > Burdens of Proof > Movant Persuasion
the defendant's defense. The moving party bears the
& Proof
burden of persuasion that there is no triable issue of
material fact and that he is entitled to judgment as a
HN3[ ] Evidentiary Considerations, Absence of
matter of law.
Essential Element
The moving party must satisfy his or her initial burden

Civil Procedure > ... > Summary before the opposing party must controvert anything.
Judgment > Evidentiary Considerations > Absence Code Civ. Proc., § 437c, subd. (p)(1), (2). Accordingly, a
of Essential Element moving defendant who claims that the plaintiff cannot
prove all the elements of his case must present
Civil Procedure > ... > Summary evidence in support of this claim. The defendant cannot
Judgment > Burdens of Proof > Movant Persuasion simply challenge the plaintiff to prove his case by
& Proof opposition. In other words, a plaintiff resisting a motion
for summary judgment bears no burden to establish any
Civil Procedure > ... > Summary element of his or her case unless and until the
Judgment > Burdens of Proof > Nonmovant defendant presents evidence either affirmatively
Persuasion & Proof negating that element (proving its absence in fact), or
affirmatively showing that the plaintiff does not possess
HN2[ ] Evidentiary Considerations, Absence of and cannot acquire evidence to prove its existence.
Essential Element
A cause of action has no merit under Code Civ. Proc., §

437c, subd. (o), if either of the following exists: (1) One Civil Procedure > ... > Summary
or more of the elements of the cause of action cannot Judgment > Entitlement as Matter of Law > Need for
be separately established, even if that element is Trial
separately pleaded; or (2) a defendant establishes an
affirmative defense to that cause of action. The party HN4[ ] Entitlement as Matter of Law, Need for Trial
moving for summary judgment bears an initial burden of
A court's primary function in evaluating a summary
production to make a prima facie showing of the
judgment motion is to identify issues rather than to
nonexistence of any triable issue of material fact; if he
determine them. If the evidence is in conflict, the factual
carries his burden of production, he causes a shift, and
issues must be resolved by trial. Thus, should the court
the opposing party is then subjected to a burden of
Page 3 of 25
determine that triable issues of fact exist, the summary Antitrust & Trade Law > Consumer
judgment motion must be denied. There is to be no Protection > Deceptive & Unfair Trade
weighing of the evidence. Practices > State Regulation
HN7[ ] Deceptive & Unfair Trade Practices, State

Regulation
Civil Procedure > Appeals > Summary Judgment
Review > Standards of Review
The purpose of the unfair competition law (UCL), Bus. &
Prof. Code, § 17200 et seq., is to protect both
HN5[ ] Summary Judgment Review, Standards of
consumers and competitors by promoting fair
Review
competition in commercial markets for goods and
services. It defines "unfair competition" to mean and
Appellate review of the granting or denial of summary
include any unlawful, unfair or fraudulent business act or
judgment is de novo. In conducting such de novo
practice and unfair, deceptive, untrue or misleading
review, an appellate court considers all the evidence set
advertising and any act prohibited by the false
forth in the moving and opposition papers except that to
advertising law, Bus. & Prof. Code, § 17500 et seq. The
which objections have been made and sustained. This
scope of the UCL is quite broad. Because § 17200 is
review consists of an independent assessment of the
framed in the disjunctive, a business practice need only
correctness of the trial court's ruling, in which the
meet one of the three criteria (unlawful, unfair or
appellate court applies the same legal standard as the
fraudulent) to be considered unfair competition. A cause
trial court in determining whether there are any genuine
of action for unfair competition under the UCL may be
issues of material fact or whether the moving party is
established independent of any contractual relationship
entitled to judgment as a matter of law. The appellate
between the parties.
court need not defer to the trial court and is not bound
by the reasons in its summary judgment ruling; the
appellate court reviews the ruling of the trial court, not
its rationale. Antitrust & Trade Law > Consumer
Protection > Deceptive & Unfair Trade
Practices > State Regulation
Antitrust & Trade Law > Consumer
Regulation
For a claim of fraudulent omission to be actionable
under the Consumer Legal Remedies Act, Civ. Code, §
Regulation
1750 et seq., the omission must be contrary to a
representation actually made by the defendant, or an
The Consumer Legal Remedies Act (CLRA), Civ. Code,
omission of a fact the defendant was obliged to
§ 1750 et seq., proscribes particular unfair methods of
disclose. Moreover, in order to be deceived, members of
competition and unfair or deceptive acts or practices in
the public must have had an expectation or an
transactions for the sale or lease of goods or services to
assumption about the materials used in the product.
consumers. Civ. Code, § 1770, subd. (a). The CLRA
has established a nonexclusive statutory remedy for
unfair methods of competition and unfair or deceptive
acts or practices undertaken by any person in a Antitrust & Trade Law > Consumer
transaction intended to result or which results in the sale Protection > Deceptive & Unfair Trade
or lease of goods or services to any consumer. The self- Practices > State Regulation
declared purposes of the act are to protect consumers
against unfair and deceptive business practices and to HN9[ ] Deceptive & Unfair Trade Practices, State
provide efficient and economical procedures to secure Regulation
such protection. The CLRA shall be liberally construed.
Civ. Code, § 1760. A claim for fraudulent business practices reflects the
focus of the unfair competition law, Bus. & Prof. Code, §
17200 et seq., on the defendant's conduct, rather than
Page 4 of 25
the plaintiff's damages, in service of the statute's larger cannot form the basis for a breach of express warranty
purpose of protecting the general public against claim. Virtually all product failures discovered after
unscrupulous business practices. expiration of the warranty can be attributed to a latent
defect that existed at the time of sale or during the term
of the warranty. All parts will wear out sooner or later
and thus have a limited effective life. Manufacturers
always have knowledge regarding the effective life of
particular parts and the likelihood of their failing within a
particular period of time, and can always be said to
Civil Procedure > ... > Summary know that many parts will fail after the warranty period
Judgment > Entitlement as Matter of has expired.
Law > Appropriateness
HN10[ ] Deceptive & Unfair Trade Practices, State Contracts Law > Contract Interpretation > General
Regulation Overview
Whether allegedly concealed information is material HN13[ ] Contracts Law, Contract Interpretation
under the unfair competition law, Bus. & Prof. Code, §
17200 et seq., is a question for the trier of fact. See Civ. Code, § 1643.
Antitrust & Trade Law > Consumer Business & Corporate Compliance > ... > Contracts
Protection > False Advertising > State Regulation Law > Breach > Breach of Warranty
Civil Procedure > ... > Summary HN14[ ] Breach, Breach of Warranty
Judgment > Entitlement as Matter of
Law > Appropriateness A plaintiff cannot maintain a breach of warranty claim for
a product that is repaired within the warranty period and
HN11[ ] False Advertising, State Regulation fails again months after the warranty has expired.
Sellers are permitted to puff their products by stating

opinions about the quality of the good so long as they
Civil Procedure > Special Proceedings > Class
do not cross the line and make factual representations
Actions > Appellate Review
about important characteristics like a product's safety.
The question of whether a manufacturer's
HN15[ ] Class Actions, Appellate Review
representation about a product is specific, and was
relied upon by a consumer, should be decided by a trier
Because trial courts are ideally situated to evaluate the
of fact.
efficiencies and practicalities of permitting group action,
they are afforded great discretion in granting or denying
class certification. Accordingly, a trial court ruling
Business & Corporate Compliance > ... > Contracts supported by substantial evidence generally will not be
Law > Breach > Breach of Warranty disturbed unless (1) improper criteria were used; or (2)
erroneous legal assumptions were made.
Business & Corporate Compliance > ... > Contracts
Law > Contract Conditions & Provisions > Express
Warranties
Civil Procedure > ... > Class Actions > Class
Members > Absent Members
HN12[ ] Breach, Breach of Warranty
Civil Procedure > ... > In Rem & Personal
A warranty is a contractual promise from the seller that
Jurisdiction > In Personam Actions > Due Process
the goods conform to the promise. A latent defect that is
discovered after the express warranty has expired
Page 5 of 25
HN16[ ] Class Members, Absent Members have no identifiable interest in denying such persons full
recovery.
A nationwide class is proper under constitutional law
when a state has significant contact or significant
aggregation of contacts to the claims asserted by each
Civil Procedure > ... > Class Actions > Class
member of the plaintiff class, contacts creating state
Members > Absent Members
interests, in order to ensure that the choice of forum is
not arbitrary or unfair.
Civil Procedure > Special Proceedings > Class
Actions > Certification of Classes
Civil Procedure > ... > Federal & State HN20[ ] Class Members, Absent Members
Interrelationships > Choice of Law > Forum & Place
The problem of one-way intervention occurs when not-
Civil Procedure > ... > Federal & State yet-bound absent plaintiffs may elect to stay in a class
Interrelationships > Choice of Law > Governmental after favorable merits rulings but opt out after
Interests unfavorable ones. Thus, trial courts in class action
proceedings should decide whether a class is proper
HN17[ ] Choice of Law, Forum & Place and, if so, order class notice before ruling on the
substantive merits of the action. The doctrine is
The state where the injury occurs has a predominant designed to prevent class members from taking
interest in applying its law. advantage of favorable rulings while avoiding any res
judicata effect of unfavorable ones, essentially picking
and choosing how to proceed based on how the merits
Civil Procedure > ... > Federal & State of the class litigation unfold. Certifying new class claims
Interrelationships > Choice of Law > Forum & Place in a case where the court has already made decisions
on the merits would violate the proscription against one-
Contracts Law > Contract Interpretation > General way intervention, in that potential members of the class
Overview can reserve the decision to become part of the class
until after the court has made decisions on the merits of
HN18[ ] Choice of Law, Forum & Place the case.
See Civ. Code, § 1646.

Civil Procedure > Appeals > Standards of
Review > Abuse of Discretion
Protection > General Overview Civil Procedure > Discovery &
Disclosure > Discovery > Misconduct During
Civil Procedure > ... > Federal & State Discovery
Interrelationships > Choice of Law > Forum & Place
HN21[ ] Standards of Review, Abuse of Discretion
Civil Procedure > ... > Federal & State
Interrelationships > Choice of Law > Governmental A trial court has broad discretion when imposing a
Interests discovery sanction. Accordingly, the trial court's order
will not be reversed on appeal in the absence of a
HN19[ ] Antitrust & Trade Law, Consumer manifest abuse of discretion that exceeds the bounds of
Protection reason. The appellant bears the burden on appeal of
demonstrating that the trial court abused its discretion in
California's consumer protection laws are among the imposing a discovery sanction.
strongest in the country. California courts may apply
California's pro-consumer laws to non-residents.
California's more favorable laws may properly apply to Civil Procedure > ... > Discovery > Misconduct
benefit nonresident plaintiffs when their home states
During Discovery > Motions to Compel
Page 6 of 25
Civil Procedure > Pleading & Practice > Motion a manner consistent with the basic purposes of such
Practice > Time Limitations sanctions, e.g., to compel disclosure of discoverable
information. Sanctions may not be imposed solely to
HN22[ ] Misconduct During Discovery, Motions to punish the offending party. Furthermore, the sanction
Compel chosen should not provide a windfall to the other party,
by putting the prevailing party in a better position than if
Code Civ. Proc., § 2025.480, subd. (b), provides that a he or she had obtained the discovery sought and it had
motion to compel further answers from a deponent shall been favorable.
be made no later than 60 days after the completion of
the record of the deposition.
Civil Procedure > ... > Discovery > Misconduct Headnotes/Summary

HN23[ ] Misconduct During Discovery, Motions to Summary

Compel
CALIFORNIA OFFICIAL REPORTS SUMMARY
See Code Civ. Proc., § 2025.480, subd. (j).
The trial court made a no merits determination as to a
Consumers Legal Remedies Act (CLRA) (Civ. Code, §
1750 et seq.) claim alleging that notebook computer
Civil Procedure > ... > Discovery > Methods of
components were defective, granted the manufacturer's
Discovery > Inspection & Production Requests
motion for summary judgment as to unfair competition
(Bus. & Prof. Code, § 17200 et seq.) and breach of
Civil Procedure > ... > Discovery > Misconduct
express warranty claims, denied certification of a
nationwide class and of the CLRA claim, and ordered
Civil Procedure > Pleading & Practice > Motion discovery sanctions. (Superior Court of Santa Clara
Practice > Time Limitations County, No. CV817837, James P. Kleinberg, Judge.)
HN24[ ] Methods of Discovery, Inspection & The Court of Appeal affirmed in part and reversed in
Production Requests part. The court held that fact issues as to whether the
components were defective and whether the
For a business record subpoena, the 60-day period manufacturer knew of the defects precluded summary
during which a motion to compel must be filed begins to judgment on the unfair competition claim and precluded
run when the deponent serves objections on the party. a no merits determination as to the CLRA claim. An
At the time the objections are served, the record of express warranty could not reasonably be interpreted
deposition is complete. The deadline is mandatory. (Civ. Code, § 1643) to include a defect not reported
within the warranty period, but another consumer could
maintain a claim alleging an inadequate repair during
the warranty period. California law could be applied to a
Civil Procedure > Appeals > Standards of nationwide class consistent with due process and
Review > Abuse of Discretion because California was the place where the repairs
were performed (Civ. Code, § 1646). An untimely
Civil Procedure > Discovery &
motion to compel (Code Civ. Proc., § 2025.480, subd.
Disclosure > Discovery > Misconduct During
(b)) was properly sanctioned (§ 2025.480, subd. (j)).
Discovery
(Opinion by Rushing, P. J., with Elia, J., and Walsh, J.,*
concurring.)
HN25[ ] Standards of Review, Abuse of Discretion
A trial court has broad discretion when imposing a

* *Judge of the Santa Clara Superior Court, assigned by the
discovery sanction. Although the court has discretion in
choosing a sanction, this discretion must be exercised in Chief Justice pursuant to article VI, section 6 of the California
Constitution.
Page 7 of 25
Headnotes Practices—Fraudulent Omission.
CALIFORNIA OFFICIAL REPORTS HEADNOTES For a claim of fraudulent omission to be actionable

under the Consumers Legal Remedies Act (Civ. Code, §
CA(1)[ ] (1) 1750 et seq.), the omission must be contrary to a
representation actually made by the defendant, or an
Consumer and Borrower Protection Laws § 38— omission of a fact the defendant was obliged to
Consumers Legal Remedies Act—Deceptive disclose. Moreover, in order to be deceived, members of
Practices—Scope. the public must have had an expectation or an
assumption about the materials used in the product.
The Consumers Legal Remedies Act (CLRA) (Civ.
Code, § 1750 et seq.) proscribes particular unfair
methods of competition and unfair or deceptive acts or CA(4)[ ] (4)
practices in transactions for the sale or lease of goods
or services to consumers (Civ. Code, § 1770, subd. (a)). Unfair Competition § 4—Acts Constituting—Fraudulent
The CLRA has established a nonexclusive statutory Practices.
remedy for unfair methods of competition and unfair or
deceptive acts or practices undertaken by any person in A claim for fraudulent business practices reflects the
a transaction intended to result or which results in the focus of the unfair competition law (Bus. & Prof. Code, §
sale or lease of goods or services to any consumer. The 17200 et seq.) on the defendant's conduct, rather than
self-declared purposes of the act are to protect the plaintiff's damages, in service of the statute's larger
consumers against unfair and deceptive business purpose of protecting the general public against
practices and to provide efficient and economical unscrupulous business practices.
procedures to secure such protection. The CLRA must
be liberally construed (Civ. Code, § 1760).
[*1166] CA(5)[ ] (5)
CA(2)[ ] (2) Unfair Competition § 4—Acts Constituting—Fraudulent

Practices—Concealment—Materiality.
Unfair Competition § 4—Acts Constituting—Unlawful,
Unfair, or Fraudulent Practices. Whether allegedly concealed information is material
under the unfair competition law (Bus. & Prof. Code, §
The purpose of the unfair competition law (UCL) (Bus. & 17200 et seq.) is a question for the trier of fact.
Prof. Code, § 17200 et seq.) is to protect both
consumers and competitors by promoting fair
competition in commercial markets for goods and CA(6)[ ] (6)
services. It defines “unfair competition” to mean and
include any unlawful, unfair or fraudulent business act or Advertising § 8—False Advertising—What
practice and unfair, deceptive, untrue or misleading Constitutes—Distinguishing Puffery from Specific
Representations.
advertising and any act prohibited by the false
advertising law (Bus. & Prof. Code, § 17500 et seq.).
Sellers are permitted to “puff” their products by stating
The scope of the UCL is quite broad. Because § 17200
opinions about the quality of the goods so long as they
is framed in the disjunctive, a business practice need
do not cross the line and make factual representations
only meet one of the three criteria (unlawful, unfair or
about important characteristics like a product's safety.
fraudulent) to be considered unfair competition. A cause
The question of whether a manufacturer's
of action for unfair competition under the UCL may be
representation about a product is specific, and was
established independent of any contractual relationship
relied upon by a consumer, should be decided by a trier
between the parties.
of fact.
CA(3)[ ] (3)
CA(7)[ ] (7)
Consumer and Borrower Protection Laws § 38—
Unfair Competition § 9—Actions—Evidence—Product
Consumers Legal Remedies Act—Deceptive
Page 8 of 25
Defects and Knowledge. Warranty—Repaired Product Failure after Warranty

Period.
Consumers' evidence created a triable issue of fact as
to whether notebook computer components were A plaintiff cannot maintain a breach of warranty claim for
defective and whether the manufacturer had knowledge a product that is repaired within the warranty period and
of the defects. Call center data and service data fails again months after the warranty has expired.
demonstrating an increase in failure over time, coupled
with an engineering expert's analysis of the data,
created a triable issue of fact as to whether the CA(10)[ ] (10)
manufacturer knew about the defects and if so, when.
The manufacturer thus was not entitled to judgment as a Parties § 6—Class Actions and Certification—
matter of law as to claims under the unfair competition Nationwide Class—Significant State Contacts.
law (Bus. & Prof. Code, § 17200 et seq.), and was not
A nationwide class is proper under constitutional law
entitled to a no merits determination as to claims under
when a state has significant contact or significant
the Consumers Legal Remedies Act (Civ. Code, § 1750
aggregation of contacts to the claims asserted by each
et seq.).
member of the plaintiff class, contacts creating state
[Cal. Forms of Pleading and Practice (2015) ch. 565, interests, in order to ensure that the choice of forum is
Unfair Competition, § 565.31; Simon et al., Matthew not arbitrary or unfair.
Bender Practice Guide: Cal. Unfair Competition and
Business Torts (2015) § 2.10; 13 Witkin, Summary of
Cal. Law (10th ed. 2005) Equity, § 117; 4 Witkin, CA(11)[ ] (11)
Summary of Cal. Law (10th ed. 2005) Sales, § 296; 4
Conflict of Laws § 1—State where Injury Occurs.
Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 293; 2
Witkin, Cal. Evidence (5th ed. 2012) Discovery, §§ 258,
The state where the injury occurs has a predominant
261.]
interest in applying its law.
CA(8)[ ] (8)
CA(12)[ ] (12)
Sales § 44—Warranties—Actions for Breach of
Conflict of Laws § 1—Consumer Protection—
Warranty—Latent Defect Discovered after Warranty
Application of California Laws to Nonresidents.
Period.
California's consumer protection laws are among the

A warranty is a contractual promise from the seller that
strongest in the country. California courts may apply
the goods conform to the promise. A latent defect that is
California's pro-consumer laws to non-residents.
discovered after the express warranty has expired
California's more favorable laws may properly apply to
cannot form the basis for a breach of express warranty
benefit nonresident plaintiffs when their home states
claim. Virtually all product failures discovered after
have no identifiable interest in denying such persons full
expiration of the warranty can be attributed to a latent
recovery.
defect that existed at the time of sale or during the term
CA(13)[ ] (13)
particular parts and the likelihood of their failing within a Parties § 6.4—Class Actions and Certification—Notice
particular period of time, and can always be said to to Class Members—Before Ruling on Merits.
know that many parts will fail after the warranty period
has expired. The problem of one-way intervention occurs when not-
yet-bound absent plaintiffs may elect to stay in a class
after favorable merits rulings but opt out after
[*1167] CA(9)[ ] (9) unfavorable ones. Thus, trial courts in class action
proceedings should decide whether a class is proper
Sales § 44—Warranties—Actions for Breach of and, if so, order class notice before ruling on the
Page 9 of 25
substantive merits of the action. The doctrine is Drinker Biddle & Reath, Michael J. Stortz, Beth O'Neal
designed to prevent class members from taking Arnese; Bergeson, Daniel J. Bergeson and John W.
advantage of favorable rulings while avoiding any res Fowler for Defendant and Respondent.
judicata effect of unfavorable ones, essentially picking
and choosing how to proceed based on how the merits
No appearance for Objector and Respondent.
of the class litigation unfold. Certifying new class claims
in a case where the court has already made decisions
on the merits would violate the proscription against one-
way intervention, in that potential members of the class
Judges: Opinion by Rushing, P. J., with Elia, J., and
can reserve their decision to become part of the class
Walsh, J.,* concurring.
until after the court has made decisions on the merits of
the case.
CA(14)[ ] (14) Opinion by: Rushing, P. J.
Discovery and Depositions § 23—Inspection of Records

and Things—Procedure—Time for Filing Motion to
Compel—Business Record Subpoena. Opinion
For a business record subpoena, the 60-day period
during which a motion to compel must be filed begins to
run when the deponent serves objections on the party. [**415] RUSHING, P. J.—This case is a class action
At the time the objections are served, the record of brought by purchasers of notebook computers that were
deposition is complete. The deadline is mandatory. manufactured by Hewlett-Packard Company (HP).
Appellants are I Braun Degenshein (Degenshein), and
Susanna Giuliano-Ghahramani (Giuliano-Ghahramani),
[*1168] CA(15)[ ] (15) both of whom are representative plaintiffs of a class of
California residents who purchased certain HP notebook
Discovery and Depositions § 31—Enforcement of Right computers.
to Discovery—Sanctions of Trial Court—Choosing
Appropriate Sanction. The basis of appellants' consumer action against HP is
that certain notebook computers manufactured by HP
A trial court has broad discretion when imposing a contained inverters that HP knew would likely fail and
discovery sanction. Although the court has discretion in cause display screens to dim and darken at some point
choosing a sanction, this discretion must be exercised in before the end of the notebook's useful life.
a manner consistent with the basic purposes of such
sanctions, e.g., to compel disclosure of discoverable [**416] Appellants alleged claims against HP for
information. Sanctions may not be imposed solely to violation [***2] of the unfair competition law (UCL) (Bus.
punish the offending party. Furthermore, the sanction & Prof. Code, § 17200 et seq.), violation of the
chosen should not provide a windfall to the other party, Consumers Legal Remedies Act (CLRA) (Civ. Code, §
by putting the prevailing party in a better position than if 1750 et seq.), unjust enrichment and breach of express
he or she had obtained the discovery sought and it had warranty.
been favorable.
After years of litigation, the trial court ultimately made a
“no merits” determination as to the CLRA claim, and
granted HP's motion for summary judgment as to
appellants' remaining claims.
[*1169]
Counsel: Green & Noblin, Robert S. Green; Bramson,
Plutzik, Mahler & Birkhaeuser, Jenelle Welling;
Kershaw, Cutter & Ratinoff and C. Brooks Cutter for
* Judge of the Santa Clara Superior Court assigned by the
Plaintiffs and Appellants.
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
Page 10 of 25
On appeal, appellants challenge seven trial court trier of fact not to find any underlying material fact more
orders: two summary adjudication orders related to two likely than not—otherwise, he would not be entitled to
different class representatives and the class itself, two judgment as a matter of law, but would [***4] have to
class certification orders related to denial of a present his evidence to a trier of fact.” (Aguilar, supra,
nationwide class and the denial of certification of the 25 Cal.4th at p. 851, fn. & some italics omitted.)
CLRA claim, and three discovery sanctions orders.1 [*1170]
HN3[ ] “The moving party must satisfy his or her initial

Summary Adjudication burden before the opposing party must controvert
anything. ([Code Civ. Proc.,] § 437c, subd. (p)(1), (2).)
HN1[ ] “‘The purpose of the law of summary judgment Accordingly, a moving defendant who claims that the
[or summary adjudication] is to provide courts with a plaintiff cannot prove all the elements of his case must
mechanism to cut through the parties’ pleadings in order present evidence in support of this claim. The defendant
to determine whether, despite their allegations, trial is in cannot simply challenge the plaintiff to prove his case by
fact necessary to resolve their dispute.' [Citation.] As [**417] opposition. (Aguilar, supra, 25 Cal.4th at pp.
such, the summary judgment statute (Code Civ. Proc., § 854–855.)” (Y.K.A. Industries, Inc. v. Redevelopment
437c), ‘provides a particularly suitable means to test the Agency of City of San Jose (2009) 174 Cal.App.4th 339,
sufficiency of the plaintiff's prima facie case and/or of 353 [94 Cal. Rptr. 3d 424] (Y.K.A.).) In other words, “a
the defendant's [defense].’ [Citation.]” [***3] (Law plaintiff resisting a motion for summary judgment bears
Offices of Dixon R. Howell v. Valley (2005) 129 no burden to establish any element of his or her case
Cal.App.4th 1076, 1091 [29 Cal. Rptr. 3d 499] (Valley).) unless and until the defendant presents evidence either
affirmatively negating that element (proving its absence
The moving party “bears the burden of persuasion that in fact), or affirmatively showing that the plaintiff does
there is no triable issue of material fact and that he is not possess and cannot acquire evidence to prove its
entitled to judgment as a matter of law.” (Aguilar v. existence.” (Reeves v. Safeway Stores, Inc. (2004) 121
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [107 Cal.App.4th 95, 107 [16 Cal. Rptr. 3d 717].)
Cal. Rptr. 2d 841, 24 P.3d 493], fn. omitted (Aguilar).)
HN4[ ] The court's “primary function [in evaluating a
HN2[ ] A cause of action has no merit under Code of summary judgment motion] is to identify issues rather
Civil Procedure section 437c, subdivision (o), “if either of than to determine [them]. [Citation.] … If the evidence is
the following exists: [¶] (1) One or more of the elements in conflict, the factual issues must be resolved by trial.”
of the cause of action cannot be separately established, (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th
even if that element is separately pleaded[, or] [¶] (2) [a] 832, 839 [89 Cal. Rptr. 2d 540].) Thus, should the court
defendant establishes an affirmative defense to that determine that triable issues of fact exists, the summary
cause of action.” (See Aguilar, supra, 25 Cal.4th at p. judgment motion must be denied. (Chavez v. Carpenter
853.) The party moving for summary judgment “bears (2001) 91 Cal.App.4th 1433, 1448 [111 Cal. Rptr. 2d
an initial burden of production to make a prima facie 534].) “There is to be no weighing of evidence.”
showing of the nonexistence of any triable issue of (Kids' [***5] Universe v. In2Labs (2002) 95 Cal.App.4th
material fact; if he carries his burden of production, he 870, 880, 116 Cal. Rptr. 2d 158.)
causes a shift, and the opposing party is then subjected
to a burden of production of his own to make a prima HN5[ ] Our review of the granting or denial of
facie showing of the existence of a triable issue of summary judgment is de novo. (Valley, supra, 129
material fact.” (Aguilar, supra, 25 Cal.4th at p. 850; see Cal.App.4th at p. 1092.) In conducting such de novo
Code Civ. Proc., § 437c.) review, we “consider[] all the evidence set forth in the
moving and opposition papers except that to which
Thus, as here, when a defendant moves for summary objections have been made and sustained. [Citation.]”
judgment, he must make a prima facie showing, i.e., “he (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317,
must present evidence that would require a reasonable 334 [100 Cal. Rptr. 2d 352, 8 P.3d 1089].) “This review
consists of ‘an independent assessment of the
correctness of the trial court's ruling, [in which we]
1 Please
apply[] the same legal standard as the trial court in
see the statement of facts from our previous opinion
determining whether there are any genuine issues of
in Hewlett-Packard Co. v. Superior Court (2008) 167
Cal.App.4th 87 [83 Cal. Rptr. 3d 836]. material fact or whether the moving party is entitled to
Page 11 of 25
judgment as a matter of law.’ [Citation.] We need not experienced problems with the display screen in
defer to the trial court and are not bound by the reasons November 2002. Giuliano-Ghahramani submitted the
in its summary judgment ruling; we review the ruling of notebook to HP during the warranty and HP replaced
the trial court, not its rationale. [Citation.]” (Valley, supra, the inverter.
129 Cal.App.4th at p. 1092.)
In June 2009, the trial court granted HP's motion for
summary adjudication and made a no merits
Factual Background determination as to Degenshein's claims. HP moved for
entry of judgment against Degenshein. The court denied
Here, appellants challenge two orders of the trial court the motion, and instead, allowed Degenshein to amend
granting summary adjudication in favor of HP. The first the complaint to add Giuliano-Ghahramani as plaintiff.
is of Degenshein's claims in the first [*1171] amended On October 7, 2009, the court approved Giuliano-
complaint.2 The second is of Giuliano-Ghahramani's Ghahramani as class representative. Giuliano-
and the class claims in the second amended complaint. Ghahramani filed the second amended complaint in
February 2010.
The first amended complaint was filed on October 14,
2003, and alleged four causes of action against HP: In June 2010, HP filed a motion for summary judgment
Violation of the CLRA, violation of the UCL, unjust as to Giuliano-Ghahramani and the class. The trial court
enrichment3 and breach of express warranty. [**418] granted the motion, and on April 11, 2011, the trial court
The first amended complaint included Degenshein as entered judgment against Degenshein, Giuliano-
representative plaintiff. Degenshein purchased a Ghahramani, and the [***8] class as certified by the
Zinfandel 4.0 notebook computer in April 2002 that court.
came with a standard one-year warranty from HP. [*1172]
Degenshein experienced problems with his display
screen blacking out shortly before the expiration of his
one-year warranty, but did not notify HP of the problem
with his notebook until two months after the warranty CLRA4 and UCL Claims
had expired.
HN6[ ] CA(1)[ ] (1) “The CLRA proscribes particular
The second amended complaint was filed on February ‘unfair methods of competition and unfair or deceptive
24, 2010, asserting the same causes of action as the acts or practices’ in transactions for the sale or lease of
first amended complaint. The second amended goods or services to consumers. (Civ. Code, § 1770,
complaint adds Giuliano-Ghahramani as representative subd. (a) … .)” (Collins v. eMachines, Inc. (2011) 202
plaintiff. Giuliano-Ghahramani purchased a Zinfandel Cal.App.4th 249, 255 [134 Cal.Rptr.3d 588] (Collins).)
3.5 notebook computer in January 2002, and
The CLRA “‘enacted in 1970, “established a
nonexclusive statutory remedy for ‘unfair methods of
2 At the outset it should be noted that appellants do not provide competition and unfair or deceptive acts or practices
the operative first amended complaint that was the basis of the undertaken by any person in a transaction intended to
first motion [***6] for summary judgment. This defect would result or which results in the sale or lease of goods or
have resulted in the judgment being affirmed in favor of HP services to any consumer. …’ [Citation.]”’ [Citation.] ‘The
based on an insufficient record. (Maria P. v. Riles (1987) 43 self-declared purposes of the act are “to protect
Cal.3d 1281, 1295–1296 [240 Cal. Rptr. 872, 743 P.2d 932] consumers against unfair and deceptive business
[failure to provide an adequate record on an issue requires practices and to provide efficient and economical
that the issue be resolved against the appellant].) However, procedures to secure such protection.” (Civ. Code, §
HP cured this defect by providing the first amended complaint
1760 … .)’” (Wang v. Massey Chevrolet (2002) 97
in its appendix. Therefore, we consider the merits of
Cal.App.4th 856, 869 [118 Cal. Rptr. 2d 770].) The
appellants' claims.
CLRA “shall be liberally construed.” (Civ. Code, § 1760.)
3 Appellants made no argument in the trial court and no
argument on appeal regarding their unjust enrichment claim.
We deem this issue waived. (Interinsurance Exchange v. 4 CLRA claims cannot be disposed of by motion for summary
Collins (1994) 30 Cal.App.4th 1445, 1448 [37 Cal. Rptr. 2d judgment. (Civ. Code, § 1781, subd. (c)(3).) Here, appellants
126] [the absence of argument allows this [***7] court to treat filed a combined motion for summary judgment and for a no
the point as waived].) merits determination on the CLRA claim.
Page 12 of 25
Appellants allege that HP's concealment and failure to obligated to disclose the inverter defect, because it was
disclose the defect in the inverters of the notebook contrary to HP's advertising about the notebooks and
computers violated the CLRA's provision against (1) was material to the proper functioning of the notebook
representing that [***9] goods have characteristics computers.
which they do not have (Civ. Code, § 1770, subd.
(a)(5)); (2) representing that goods are of a particular HN8[ ] CA(3)[ ] (3) For a claim of fraudulent omission
standard or quality if they are of another (id., subd. to be actionable under the CLRA, “the omission must be
(a)(7)); (3) advertising goods with the intent not to sell contrary [***11] to a representation actually made by
them as advertised (id., subd. (a)(9)); (4) representing the defendant, or an omission of a fact the defendant
that a transaction confers or involves rights, remedies, was obliged to disclose.” (Daugherty v. American Honda
or obligations which it does not have or involve (id., Motor Co. (2006) 144 Cal.App.4th 824, 835 [51 Cal.
subd. (a)(14); and representing that the subject of the Rptr. 3d 118] (Daugherty).) Moreover, “[i]n order to be
transaction has been supplied in [**419] accordance deceived, members of the public must have had an
with a previous representation when it has not (id., expectation or an assumption about the materials used
subd. (a)(16)). …” in the product. (Bardin v. DaimlerChrysler Corp.
(2006) 136 Cal.App.4th 1255, 1275 [39 Cal. Rptr. 3d
With regard to the UCL, appellants allege that HP 634] (Bardin).) Appellants argue that because
violated the statute by “concealing and/or omitting the consumers had an expectation that the display screen
true facts about the defect to [appellants] and Class of their notebooks would function properly for the
members.” Additionally, appellants allege that HP's duration of the notebook's “useful life,” HP had a duty to
violation of the CLRA by “omitting the true nature and disclose the material fact that the inverters were
characteristics of its notebook computers and defective in manufacturing and installation. In particular,
suppressing the known defects,” violated the UCL. appellants assert that consumers expect a notebook
computer to be portable, and a properly working display
HN7[ ] CA(2)[ ] (2) The purpose of the UCL is to screen is essential to the notebook's portability.5
protect both consumers and competitors by promoting
fair competition in commercial markets for goods and [**420] HP argues manufacturers do not have an
services. It defines “unfair competition” to mean and independent duty to disclose a product defect
include “any unlawful, unfair or fraudulent business act absent [***12] an unreasonable risk of “physical injury
or practice and unfair, deceptive, untrue [***10] or or safety [*1174] concerns.” (Daugherty, supra, 144
misleading advertising and any act prohibited by [the Cal.App.4th at p. 836; see, e.g., Bardin, supra, 136
false advertising law] (commencing [*1173] with Cal.App.4th 1255.) HP further notes that here, the risk
Section 17500 et seq.).” (Bus. & Prof. Code, § 17200; posed by the alleged defect in the inverters had nothing
see Rushing et al., Matthew Bender Practice Guide: to do with a physical injury or a safety concern. Rather,
California Unfair Competition and Business Torts (2015) the risk to the consumer was the cost to repair the
Unfair Competition, §§ 2.03, 2.04 & 2.05.) notebook, and as such, it does not rise to a duty to
disclose.
“The scope of the UCL is quite broad. [Citations.]
Because the statute [(Bus. & Prof. Code, § 17200, Both Daugherty and Bardin do address disclosure of
defining unfair competition)] is framed in the disjunctive,
a business practice need only meet one of the three
criteria [(unlawful, unfair or fraudulent)] to be considered 5 We note that a case similar to this has proceeded through
unfair competition. [Citation.] [¶] A cause of action for the federal courts and has been dismissed pursuant to Federal
unfair competition under the UCL may be established Rules of Civil Procedure, rule 12(b)(6) (28 U.S.C.), for failure
‘“independent of any contractual relationship between to state a claim. (Long v. Hewlett Packard Co. (N.D.Cal., July
the parties.”’” (McKell v. Washington Mutual, Inc. (2006) 27, 2007, No. C06-02816 JW) 2007 U.S.Dist. Lexis 79262;
142 Cal.App.4th 1457, 1471 [49 Cal. Rptr. 3d 227].) Long v. Hewlett-Packard Co. (9th Cir. 2009) 316 Fed. Appx.
585.) This court is “‘not bound by a federal circuit court
Appellants argue the fraudulent concealment claims opinion. [Citation.]’” (Governor Gray Davis Com. v. American
under the CLRA and the UCL are supported by the fact Taxpayers Alliance (2002) 102 Cal.App.4th 449, 468 [125 Cal.
that HP “conceals the material fact that HP notebook Rptr. 2d 534].) Moreover, the standard for a motion to dismiss
computers have known defects that cause display under the Federal Rules of Civil Procedure, rule 12(b)(6) (28
problems.” Further, appellants assert that HP was U.S.C.) is inapplicable to a motion for summary judgment
under Code of Civil Procedure section 437c.
Page 13 of 25
defects related to safety concerns in the context of not the result of a breakage of the product over time
CLRA and UCL claims. However, neither Daugherty nor because of use and wear and tear like the engine oil
Bardin preclude a duty to disclose material information leak in Daugherty. In addition, unlike the metal
known to a manufacturer and concealed from a composition [**421] of the exhaust manifolds in Bardin,
consumer. Specifically, in Daugherty, the court noted the hardware logic in the computers in Collins was
that while the plaintiff's complaint alleged that the engine material, because it was central and necessary to the
defect presented an “‘unreasonable risk’” of “‘serious function of the computer as a computer. (Collins, supra,
potential damages,’” and that the defendant “‘carried on 202 Cal.App.4th at p. 258.)
with a willful and conscious disregard for the safety of
Plaintiffs … ,’” the complaint was “devoid of factual Similarly here, appellants assert that the defect in the
allegations showing any instance of physical injury or inverters occurred in its manufacturing and installation
safety concerns posed by the defect.” (Daugherty, and was material, because it affected the performance
supra, 144 Cal.App.4th 824, 836.) The court in of the display screens of notebook computers.
Daugherty concluded that the complaint did not state Appellants argue that a functioning display screen is
facts sufficient to support its claim that the engine defect critical to a notebook computer's function, because
posed a safety concern to consumers. [***13] (Ibid.) without it, the computer [***15] would not be portable
and would require the connection of an outside monitor.
In Bardin, the plaintiffs alleged that a car manufacturer
failed to disclose that tubular steel was used in the HP asserts Collins is inapplicable because appellants
exhaust manifolds of certain cars instead of more do not allege that their notebooks malfunctioned out of
durable and more expensive cast iron. (Bardin, supra, the box; rather, the defect allegation in this case is that
136 Cal.App.4th at p. 1260.) The court concluded that in the inverters would malfunction at some time in the
addition to failing to allege any safety concerns future. Indeed, the Collins court noted, “[t]his [is] not a
associated with the defective exhaust manifolds, the situation where the microchip [is] complete and
plaintiffs failed to allege any unfair conduct on the part operational when sold … ,” but wears out or breaks over
of the auto manufacturer. (Ibid.) The Bardin court did not time. (Collins, supra, 202 Cal.App.4th at p. 254.)
hold that a defect must be related to a safety concern to However, while appellants allege that the inverters were
be material for purposes of fraudulent omission. “substantially certain to fail” at some point in the future,
appellants' theory is that the inverters were defective in
Citing Collins, supra, 202 Cal.App.4th 249, appellants manufacturing and installation at the time the notebooks
assert that HP had a duty to disclose the defective were sold.
nature of the inverters, because the defective inverters
“obliterate[] the function of a computer as a computer.” CA(4)[ ] (4) HP argues Degenshein and class
In Collins, the defendant sold computers with defective members similar to him do not have a claim for
microchips that were “‘missing [the] actual physical fraudulent concealment under the UCL, because they
hardware logic that industry standards require’” and the received notebooks with inverters that functioned for the
defendant had knowledge of the defective nature of the duration of the one-year warranty, and were not
microchips at the time the computers were sold. (Id. at damaged by HP's alleged failure to disclose the fact of
p. 257.) The defective microchips were material, the faulty inverter. However, HN9[ ] a claim for
because they corrupted floppy disks, a necessary fraudulent business practices “reflects the UCL's focus
component in the functioning of computers at the time. on the defendant's conduct, rather than the plaintiff's
The court held that the defendant [***14] failed to damages, in service of the statute's larger
disclose and actively concealed the fact of this faulty purpose [***16] of protecting the general public against
microchip from consumers in violation of the CLRA and unscrupulous business practices.” (In re Tobacco II
the UCL. (202 Cal.App.4th at p. 258.) Cases (2009) 46 Cal.4th 298, 312 [93 Cal. Rptr. 3d 559,
207 P.3d 20].) The question under the UCL is related to
The court in Collins distinguished both Daugherty and HP's conduct in failing to disclose the faulty inverter, not
Bardin in finding that the manufacturer had a duty to on whether the notebook's computer functioned for one
disclose a material defect in its product. [*1175] year. HP's argument that the expiration of the warranty
Specifically, the Collins court noted that the defect in the period precludes a claim for fraudulent concealment
hardware logic of the computer was the result of under the UCL is incorrect.
improper manufacturing, causing the chip to corrupt
data on the user's floppy disk. The defect in Collins was CA(5)[ ] (5) Moreover, HN10[ ] whether the
Page 14 of 25
information about the faulty inverter is material is a of the cause of action, even if not separately pleaded,
question for the trier of fact. (See, e.g., Engalla v. cannot be established … .” (Code Civ. Proc., § 473c,
Pemanente Medical Group, Inc. (1997) 15 Cal.4th 951, subd. (p)(2).) “[A] moving defendant who claims that the
977 [64 Cal.Rptr.2d 843, 938 P.2d 903] [*1176] [“A plaintiff cannot prove all the elements of his case must
misrepresentation is judged to be ‘material’ if ‘a present evidence in support of this claim. The defendant
reasonable man would attach importance to its cannot simply challenge the plaintiff to prove his case by
existence or nonexistence in determining his choice of opposition.” (Y.K.A., supra, 174 Cal.App.4th at p. 353,
action in the transaction in question’ [citations], and as citing Aguilar, supra, 25 Cal.4th at pp. 854–855.) Here,
such materiality is generally a question of fact unless appellants alleged that HP omitted and concealed from
the ‘fact misrepresented is so obviously unimportant that them material information about the notebooks
the jury could not reasonably find that a reasonable man in [*1177] violation of the CLRA and the UCL. HP has
would have been influenced by it.’”].) not presented evidence as the elements of this claim,
including materiality or consumer expectations.
Appellants point to specific misrepresentations in HP's
press releases and advertising that created a duty to In support of their claim of defect in manufacture and
disclose the known defects in the notebook computers. installation of the inverters, appellants submitted the
Appellants' claim of misrepresentation is based on declaration of Eric Langberg, an engineering expert who
statements made by HP about its products in certain opined that all of the Zinfandel 3.5 computers, and
press releases. Specifically, [***17] appellants point to 42,000 Zinfandel computers contained TDK inverters
press releases from January and March 2001. In these that had an insufficient fuse rating, and as result, the
releases, HP represented that its “‘latest … notebook backlights would not receive adequate power to
PCs reinforce HP's commitment to providing choice light [***19] the screens. Langberg also offered the
customization and the latest technologies to meet the opinion that an inverter “has an indefinite useful life,”
diverse needs of today's customers,’” and that the such that a failure of an inverter at any time would be
notebooks fall within HP's tradition of “‘reliable, premature. Langberg opined that the mounting hole for
manageable, stable, secure and expandable products.’” the Ambit inverters is located too close to the integrated
circuit, and the location of the integrated circuit leads to
[**422] CA(6)[ ] (6) While it is true that HN11[ ] early failure of the inverter. In addition, Langberg offered
“[s]ellers are permitted to ‘puff’ their products by stating the opinion that the amount of force used to mount the
opinions about the quality of the goods so long as they Ambit inverters caused cracks in the soldering of the
do not cross the line and make factual representations integrated circuit.
about important characteristics like a product's safety.”
(Osborne v. Subaru of America, Inc. (1988) 198 HP points to the fact that Langberg did not identify any
Cal.App.3d 646, 660, fn. 8 [243 Cal.Rptr. 815].) The actual inverter malfunction in any of the class members'
question of whether a manufacturer's representation notebook computers, other than Degenshein's. In
about a product is specific, and was relied upon by a addition, Langberg stated: “[f]rom a statistical reliability
consumer should be decided by a trier of fact. Here, standpoint, I do not have an opinion on notebook
Giuliano-Ghahramani alleged that she purchased her computer useful life.” Langberg said that he could not
notebook based on an HP advertisement she saw. In put a percentage onto the phrase “substantially certain
addition, Giuliano-Ghahramani produced the to prematurely fail.” Langberg said that he had no basis
advertisement and testified that she purchased the for rendering an opinion when an inverter failure would
notebook because of the display screen shown and be premature versus not premature. Langberg also
described in the ad, noting that the HP notebook screen stated that he had no way to know how many 3.5 and
“was a larger screen at the time.” Appellants' evidence 4.0 notebooks had failed inverters because the repair
is sufficient to create a triable issue of fact [***18] as to data does not provide for “what's actually [***20]
the nature of HP's representations, and whether that happening in the field.” Langberg had no opinion as to
triggered a duty to disclose the defect. when HP knew of any defects in the TDK or Ambit
inverters in the notebook computers.
Evidence of Defect and HP's Knowledge [**423] Langberg's opinion evidence creates a triable
issue of fact as to whether the TDK inverters were
We note at the outset that as the moving party, HP has defective and whether the Ambit inverters were installed
not met its burden to show that “one or more elements incorrectly. Despite the fact that Langberg provided no
Page 15 of 25
evidence of what “substantially certain to fail” means, no Appellants also point to the call center data,7 as well as
opinion of what it would mean for an inverter to fail the Bizcom repair data to show that HP notebooks
prematurely, and no explanation of what constitutes a contained defective inverters, and that HP was aware of
computer's “useful life,” he did provide evidence from the same. Langberg analyzed the data, and stated that
which a reasonable trier of fact could conclude that the during the period from January 2002 and December
inverters were defective. 2003, the number of notebooks submitted for service
per month for inverter replacement ranged from 0
As to HP's knowledge of the defect, appellants present percent to 0.8 percent. In most months during that same
an e-mail from David Lee, an HP engineer, stating that period, the percentage of notebooks submitted for
at the “Zinfandel Platform Team” meeting on January 8, inverter repair was less than 0.5 percent. However, the
2002, HP addressed the electrical and mechanical failure rate of 0.8 percent noted in February 2002,
engineering problems of the TDK inverters that were increased to 1.0 percent in April 2002.
causing backlight failures in Zinfandel 3.0 and 3.5
computers. The electrical engineering problem with the HP argues that because a dim, dark or flickering display
Zinfandel 3.5 computers was traced to TDK inverters can be caused by many [**424] things, including liquid
with an “insufficient margin on fuse rating.” As a result of spills and customer misuse, there is no way to
this discovery, on April [*1178] 15, 2002, HP issued a extrapolate proof of defective inverters from call center
service note to [***21] Compal, the Taiwanese original data complaining of display screen problems, or Bizcom
design manufacturer who manufactured the notebooks repair data. However, Langberg's analysis of the
for HP. The TDK note provided that the TDK inverters increase in inverter failure over time could lead a
had a “blown” fuse that resulted in no backlight to the reasonable trier of fact to conclude that the inverters
display screen on the computer. The note required that were defective, and that HP was aware of the defect.
the TDK inverters in Zinfandel 3.5 computers that were [*1179]
submitted for repair to Bizcom Electronics, Inc.
(Bizcom), HP's authorized repair center, be replaced CA(7)[ ] (7) We find appellants' evidence creates a
with inverters manufactured by Ambit. triable issue of fact as to whether the TDK and Ambit
inverters were defective and whether HP had
With regard to the Ambit inverters, appellants present knowledge of the defects. Langberg's testimony creates
evidence of a second service note6 that was issued in a triable issue of fact as to whether the TDK inverters
November 2003, and related to the Ambit inverters that were defective because they had an insufficient fuse
Bizcom installed as replacements in Zinfandel rating, and whether the Ambit inverters used to replace
computers. This second service note applied to all the TDK inverters were installed incorrectly. The call
Zinfandel notebooks, regardless of version (i.e., 3.0, 3.5 center data and service data demonstrating an increase
or 4.0) service history or actual inverter failure. This in inverter failure over time, coupled with Langberg's
service note stated that the torque setting of Bizcom's analysis of the data, create a triable issue of fact as to
automated screwdrivers used to install the Ambit whether HP knew about the defects and if so, when. In
inverters was too high, resulting in solder cracking on addition, the occurrence of the HP meeting [***24] on
the inverters. The note instructed Bizcom to reduce the January 8, 2002, to address the electrical engineering
torque setting on the screwdrivers for future repairs. problems with the TDK inverters, and the continued
shipment of Zinfandel 3.5 notebooks containing those
inverters for the three months following, creates a triable
issue of fact as to whether HP knew about the defect in
6 At HP's motion for summary adjudication of Degenshein's the TDK inverters and concealed this fact from the
claims, HP objected to the admission of the Ambit service consumers who purchased notebooks containing the
note [***22] as a “subsequent remedial measure” under TDK inverters. Finally, the Ambit service note, coupled
Evidence Code section 1151. The court sustained the
with the evidence of the procedure by which HP issues
objection. This was error. The Ambit service note was offered
a service note creates a triable issue as to when HP
to show defect in the installation of the inverters. It was not
offered to show negligence on the part of HP, and therefore,
Evidence Code section 1151 does not apply.
It should also be noted that at HP's subsequent motion for 7 Callcenter data refers to “anybody who calls HP, the 800
summary adjudication of Giuliano-Ghahramani's and the class number, who has a question … the call service
claims, HP did not object to the Ambit service note, and it was representative [***23] … enters an entry when that call
admitted as evidence. happens … .”
Page 16 of 25
knew about the defect in the Ambit inverter installation. It is undisputed in this case that Degenshein did not
notify HP until 14 months after he purchased his
HP is not entitled to judgment as a matter of law as to notebook—two months after the expiration of the one-
the UCL claims, and is not entitled to a no merits year warranty. Appellants assert that Degenshein's late
determination as to the CLRA claims in the first and notice of his defective computer was not fatal to his
second amended Complaints. breach of express warranty claim, because HP had
“constructive notice” of the display screen problems
based on other customer complaints about other
Breach of Express Warranty notebook computers in HP's product line. In addition,
appellants assert that the inverters were substantially
The one-year warranty for the notebook computer
certain to fail during the notebook's “useful life,” and that
states, in relevant part: “HP warrants to you, the end-
HP knew this would occur at the time the notebooks
user customer, that HP hardware, accessories, and
were sold.
supplies will be free from defects in materials and
workmanship after the date of purchase, for the period The warranty at issue in this case is clear that it applies
specified in the Warranty Duration table below. HP to the end user, and provides that the product “will be
Pavilion and Omnibook XE Series Notebooks typically free from defects in materials and workmanship after the
come with a standard one-year [***25] warranty. Please date of purchase, for the period specified [***27] in the
see the Warranty Duration table for more details. If HP Warranty Duration table below.” The word “defects” in
receives notice of such defects during the warranty the warranty clearly refers to defects in the end user's
period, HP will at its option, either repair or replace computer, as opposed to other computers purchased by
products which prove to be defective. Replacement other customers on earlier or later dates. In addition, the
products may be either new or equivalent in warranty provides for HP's obligation to repair or replace
performance to new. [¶] … [¶] … HP does not warrant defective products only if HP “receives notice of such
that the operation of HP products will be uninterrupted defects during the warranty period … .”
or error free. If HP is unable, within a reasonable time,
to repair or replace any product to a condition as CA(8)[ ] (8) Appellants' argument is contradictory to
warranted, you will be entitled to a refund of the Daugherty, supra, 144 Cal.App.4th 824, which held that
purchase price upon prompt return of the product.” HN12[ ] “[a] warranty is a contractual promise from the
seller that the goods conform to the promise.” (Id. at p.
For notebook computers presented to HP for repair
830.) In Daugherty, the plaintiffs argued that Honda's
during the one-year warranty stated above, HP also
warranty did not require discovery of the defect during
provided a 90-day repair warranty for materials and
the warranty period if Honda was aware of the defect at
work at no charge to the purchaser. The repair warranty
the time of sale. The court rejected the plaintiffs'
provided that if the product was returned to HP within 90
argument, noting that numerous courts have found that
days of a repair, it [*1180] would “correct any defects in
a latent defect that is discovered after the express
materials or workmanship used in the repair.” In
warranty has expired cannot form the basis for a breach
addition, customers were given the option of purchasing
of express warranty claim. (Id. at pp. 831–832.)
extended warranty and service packages at the time of
the original purchase of the notebook. The court in Daugherty reasoned: “in giving its promise
to repair or replace any part that was defective in
The primary difference between the first amended
material or workmanship and stating [*1181] the car
complaint and the second amended complaint [***26] is
was covered for three years or 36,000 miles, Honda ‘did
the breach of express warranty cause of action. The first
not agree, and plaintiffs did [***28] not understand it to
amended [**425] complaint alleges that Degenshein
agree, to repair latent defects that lead to a malfunction
did not submit his notebook for repair to HP until after
after the term of the warranty.’” (Daugherty, supra, 144
his one-year warranty had expired. The second
Cal.App.4th at p. 832.) The court stated further:
amended complaint alleges that Giuliano-Ghahramani
“‘[v]irtually all product failures discovered … after
submitted her notebook for repair before her one-year
expiration of the warranty can be attributed to a “latent
warranty had expired.
defect” that existed at the time of sale or during the term
Degenshein
Page 17 of 25
particular parts and the likelihood of their failing within a notice requirement is unreasonable and would not
particular period of time[, and] can always be said to effectuate the intent of HP and the end user. HN13[ ]
“know” that many parts will fail after the warranty period “A contract must receive such an interpretation as will
has expired. A rule that would make failure of a part make it … reasonable, and capable of being carried into
actionable based on such “knowledge” would render effect, if it can be done without violating the intention of
meaningless time/mileage limitations in warranty the parties.” (Civ. Code, § 1643.)
coverage.’” (Daugherty, supra, 144 Cal.App.4th at p.
830, quoting Abraham v. Volkswagen of America, Inc. Because it is undisputed that Degenshein did not notify
(2d Cir. 1986) 795 F.2d 238, 250.) HP about a problem with his display screen until after
his one-year warranty had expired, his claim for breach
Appellants rely on Hicks v. Kaufman & Broad Home of warranty fails, and HP is entitled to judgment as a
Corp. (2001) 89 Cal.App.4th 908 [107 Cal. Rptr. 2d 761] matter of law as to Degenshein's breach of warranty
(Hicks) for the proposition that the one-year time limit of cause of action.
[**426] HP's express warranty should not bar claims of
defects discovered after expiration, because the
inverters in HP's notebooks were “substantially likely to Giuliano-Ghahramani
fail” during the notebooks' “useful life.” In Hicks,
Unlike Degenshein, Giuliano-Ghahramani notified HP of
homeowners sued their builders for faulty foundations in
a problem with the display screen of her notebook
their homes. The court concluded [***29] that “proof of
computer within the one-year warranty period.
breach of warranty does not require proof the product
Specifically, [***31] Giuliano-Ghahramani purchased
has malfunctioned but only that it contains an inherent
her notebook in January 2002, and notified HP about
defect which is substantially certain to result in
problems with her display screen in November 2002. In
malfunction during the useful life of the product.” (Id. at
response, HP replaced the inverter. Giuliano-
p. 918.) The Hicks court further stated: “Foundations …
Ghahramani notified HP about display screen problems
are not like cars or tires. Cars and tires have a limited
a second time in December 2002, and HP again
useful life. … A foundation's useful life, however, is
replaced the inverter. Finally, Giuliano-Ghahramani
indefinite.” (Id. at p. 923, fn. omitted.)
notified HP in June 2003 about display screen problems
Hicks is readily distinguished from the present case. after the expiration of the one-year warranty, and the
The court's rationale in Hicks focused on the life span of 90-day repair warranty. HP did not repair Giuliano-
a home foundation, and the fact that the defect in the Ghahramani's notebook outside of the warranty period.
foundation could manifest in a malfunction at any time
Giuliano-Ghahramani asserts that there is a triable issue
during that life span. As a result, the duration of the
of fact as to whether HP actually repaired her notebook
express warranty was not dispositive of a claim of
computer in 2002 when she twice presented it to HP for
defect. Here, unlike a home foundation with an indefinite
display screen problems during [**427] the warranty
useful life, a computer, like a car or tires, has limited
period. Specifically, although Giuliano-Ghahramani
useful life.
stated that the notebook worked “great” after HP
Applying the rationale of Daugherty to the present case, returned it to her during the warranty, the fact that the
HP is not liable for breach of warranty for those claims notebook had display screen problems in June 2003
made after the expiration of the one-year warranty after the warranty had expired demonstrates that HP's
period. The warranty in this case required the end user repair during the warranty was insufficient. Giuliano-
to notify HP during the warranty period. It is undisputed Ghahramani asserts that when she submitted her
that Degenshein did not notify [***30] HP of the notebook to HP, HP replaced her inverter with other
problem with his computer until after his one-year defective inverters.
warranty had expired. Moreover, HP's putative
Giuliano-Ghahramani [***32] points to the TDK and
knowledge of a potential failure of a product in the future
Ambit service notes of April 2002 and November 2003,
or of a latent defect that could cause product failure
respectively as evidence that HP's repair of her
down the road does not alter the one-year time limits
notebook during the one-year warranty was not
provided in the [*1182] express warranty as appellants
adequate. Specifically, she argues that as directed by
suggests. (See, e.g., Daugherty, supra, 144 Cal.App.4th
the TDK service note, the TDK inverter in her notebook
at p. 830.) Appellants' interpretation of the warranty
was replaced with an Ambit inverter when she submitted
suggesting that constructive notice would satisfy the
the notebook for repair during the one-year warranty
Page 18 of 25
period. She asserts that pursuant to the Ambit service cite cases dealing with inadequate repairs under the
note, Bizcom used a screwdriver that had torque Song-Beverly Consumer Warranty Act (Civ. Code, §
settings that were too high. As a result, Giuliano- 1790 et seq.). These cases include Oregel v. American
Ghahramani argues, HP did not adequately repair her Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094 [109 Cal.
computer under the warranty. Rptr. 2d 583], Jensen v. BMW of North America, Inc.
[*1183] (1995) 35 Cal.App.4th 112 [41 Cal. Rptr. 2d 295]
(Jensen), and the recent [**428] case of Donlen v.
Here, under the terms of the warranty, HP replaced the Ford Motor Co. (2013) 217 Cal.App.4th 138 [158 Cal.
inverter in Giuliano-Ghahramani's computer and Rptr. 3d 180] (Donlen).8 All of these cases involved
returned it to her in operative condition. However, multiple unsuccessful attempts [***34] to repair the
Giuliano-Ghahramani's computer malfunctioned again consumers' cars within the warranty period and [*1184]
during the warranty, and HP again replaced the inverter. addressed the question of whether there was
Giuliano-Ghahramani argues HP breached the warranty substantial evidence to support a finding of inadequate
because it replaced one faulty inverter with another. repair.
Therefore, it did not return her computer to her in a
condition as warranted, namely, to be free from defect. While the present case does not encompass a claim for
In fact, the computer was returned to her in a defective violation of the Song-Beverly Consumer Warranty Act,
condition, which was a breach of warranty. the cases appellants cite are illustrative of what
constitutes a failure to repair. In Jensen, the plaintiff
[***33] CA(9)[ ] (9) HP asserts that because Giuliano- experienced a recurring brake problem with her BMW,
Ghahramani's notebook continued to function and she returned the car to the dealer for repair multiple
throughout the duration of the one-year warranty period, times. (Jensen, supra, 35 Cal.App.4th at pp. 120–121.)
HP complied with its warranty. HP further argues that The brake problem persisted and Jensen sought relief
the fact that Giuliano-Ghahramani's notebook under the Song-Beverly Comsumer Warranty Act for
malfunctioned six months after the expiration of the failure to repair. After a jury returned a verdict for
warranty is not a consideration in a breach of warranty Jensen, BMW appealed, arguing there was insufficient
claim. Daugherty makes it clear that that HN14[ ] a evidence to support a finding that BMW failed to
plaintiff cannot maintain a breach of warranty claim for a adequately repair her car. (35 Cal.App.4th at p. 134.)
product that is repaired within the warranty period and The Court of Appeal affirmed, finding that there was
fails again months after the warranty has expired. substantial evidence to support the jury's finding of
(Daugherty, supra, 144 Cal.App.4th at pp. 830–832.) If failure to repair. (Id. at p. 135.) Specifically, the court
the result were otherwise, it “‘would change the noted that Jensen experienced the same brake problem
landscape of warranty and product liability law in after each repair attempt, BMW had issued a service
California. Failure of a product to last forever would bulletin to dealerships alerting them to the brake
become a “defect,” a manufacturer would no longer be problem, [***35] and there was expert testimony that
able to issue limited warranties, and product defect the brake problem persisted. (Ibid.)
litigation would become as widespread as
manufacturing itself.’” (Daugherty, supra, 144 There are factual similarities between the present case
Cal.App.4th at p. 829.) and Jensen. Giuliano-Ghahramani presented evidence
that she continued to experience the same display
Appellants' claim for breach of express warranty with screen problems after submitting her notebook for
regard to Giuliano-Ghahramani is distinct from that in repeated repairs, evidence of the Ambit service note
Daugherty. Specifically, appellants do not base their that provided that the torque setting for the screwdrivers
claim for breach of warranty on the fact that Giuliano- being used to replace the inverters was too high and
Ghahramani's notebook had a defect that manifested caused cracking of the solder joint, and expert opinion
outside the warranty period. Appellants argue that HP of Langberg stating that using too much torque on an
breached its warranty by replacing one faulty inverter for already defective inverter design would cause cracking
another. As a result, HP failed to adequately repair that would continue to worsen until complete failure of
Giuliano-Ghahramani's notebook, and did not return it to the inverter.
her in the condition as warranted.
In support of their argument that failure to repair can

8 Donlen was brought to this court's attention by appellants'
form a basis for a breach of warranty claim, appellants
letter brief filed June 18, 2013.
Page 19 of 25
The evidence in this case creates a triable issue as to California residents, denying appellants' request for a
whether HP adequately repaired Giuliano-Ghahramani's nationwide class.9 As a result, Degenshein was
notebook when she submitted it to HP two times during designated as the only class representative. The
the one-year warranty. While HP focuses its argument certified class was defined as “[a]ll persons or entities
on the fact that Giuliano-Ghahramani stated that the who own or owned one or more of the following HP
notebook worked “great” when it was returned to her, Pavilion notebook models: zt1150; zt1155; zt1170;
there is evidence showing that the notebook continued zt1175; zt1108; zt1185; zt1190; zt1195; zt1250; xz185;
to have the same flickering display screen problems xz275; and xz295; containing a TDK TAD669 Rev. 2.0
after both repair attempts. In addition, there is evidence inverter or an Ambit inverter, part numbers
that when Giuliano-Ghahramani's notebook [***36] PK070012310 and PK070011210; who purchased the
failed six months after the expiration of the warranty, it notebook from an entity located in California; and who
was because of the faulty inverter. This repeated failure experienced [***38] a dim, dark, or flickering display.”
of Giuliano-Ghahramani's notebook following two repair
attempts could lead a reasonable trier of fact to find that
HP failed to adequately repair her notebook. Analysis
We find there is a triable issue of fact as to Giuliano- Appellants argue on appeal that the trial court erred in
Ghahramani's breach of express warranty claim. The limiting the class to only California residents, rather than
evidence here creates a triable issue as to whether HP HP consumers nationwide.
complied with its warranty by replacing a faulty inverter
with [*1185] another faulty inverter, and returning HN15[ ] “Because trial courts are ideally situated to
Giuliano-Ghahramani's notebook to her in a defective evaluate the efficiencies and practicalities of permitting
condition. The fact that Giuliano-Ghahramani's notebook group action, they are afforded great discretion
continued to present the same flickering display screen in [*1186] granting or denying certification. … [citations]
problems after two repair attempts, and ultimately failed … [Accordingly,] a trial court ruling supported by
because of the faulty inverter creates a triable issue as substantial evidence generally will not be disturbed
to whether HP complied with its warranty. HP is not ‘unless (1) improper criteria were used [citation]; or (2)
entitled to judgment as a matter of law as to the breach erroneous legal assumptions were made [citation]’
of express warranty claims. [citation].” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th
429, 435–436 [97 Cal. Rptr. 2d 179, 2 P.3d 27].)
[**429] Class Certification Orders In denying appellants' request to certify a nationwide

class, the court found that appellants “fail[ed] to
Appellants assert the court erred in failing to certify a establish the constitutionality of applying California law
nationwide class, and in denying certification of the to out-of-state class members' claims. [Appellants] also
CLRA claims fail[ed] to persuasively articulate why California has a
special obligation that would fairly call for it to assume
the burden of adjudicating a nationwide class action.
Denial of Nationwide Class-factual Background The purchases occurred at local retail stores in a
multitude of [***39] jurisdictions. Presumably
In 2005, Ed Rutledge and Degenshein moved for consumers would have exercised their warranty rights
class [***37] certification of the breach of express under their respective states' laws. Further, there
warranty, violation of the UCL and unjust enrichment appear to be warranty issues unique to some
claims; they did not seek certification of the CLRA jurisdictions. [Appellants] fail[ed] to provide sufficient
claims. In the motion, Rutledge and Degenshein alleged information or a satisfactory assessment as to how the
that Zinfandel 3.5 and 4.0 notebook computers released state law differences may be managed fairly and
from December 2001 until November 2002 contained efficiently.”
inverters that were substantially certain to fail during the
“useful life” of the computer. In addition, the motion
alleged that HP knew of the defect in the display screen
components in the computers at the time of class 9 HP challenged the trial court's certification of the class. This
members' purchases beginning in December 2001. court affirmed the trial court's class certification order in
Hewlett-Packard Co. v. Superior Court, supra, 167
In 2007, the trial court certified a class consisting of only Cal.App.4th 87.
Page 20 of 25
HN16[ ] CA(10)[ ] (10) A nationwide class is proper California. (Id. at p. 242.)

under constitutional law when a state has “‘significant
contact or significant aggregation [**430] of contacts’ Moreover, in Wolph, the court found a nationwide class
to the claims asserted by each member of the plaintiff proper because the warranty contracts at issue
class, contacts ‘creating state interests,’ in order to contained an express California choice-of-law provision,
ensure that the choice of [forum] is not arbitrary or the computers that were alleged to be defective were
unfair.” (Phillips Petroleum Co. v. Shutts (1985) 472 designed, developed and tested in California, and the
U.S. 797, 821–822 [86 L. Ed. 2d 628, 105 S. Ct. 2965].) decisions about retail sales of the computers were made
Appellants point to the significant contacts California in California. (Wolph, supra, 272 F.R.D. at pp. 484–
has with the claims asserted against HP that justify the 485.)
application of California law under constitutional law
principles. Specifically, HP a has national advertising The facts of Wershba and Wolph are similar to the
campaign that was created by a California agency. HP's present case. HP's headquarters and principal place of
contracts with Compal for the production of the business is California, policy decisions regarding the
computers were governed under California law. HP's notebooks at issue, including issuing the service notes,
designated service provider for computer repairs, were made in California, and all of the warranty repairs
Bizcom, is located in California. Finally, certain HP were performed in California. As such, appellants
witnesses are located in California, including David Lee, established sufficient contacts with California as to each
who approved [***40] the service notes at issue in this class member's claims such that application of
case. Mr. Lee works in HP's mobile computing division California law to non-resident plaintiffs would not be
located in Cupertino. “arbitrary and unfair.” (Phillips Petroleum Co. v. Shutts,
supra, 472 U.S. at p. 822.)
Appellants argue on appeal that the court erred in
finding that California did not have sufficient contacts to CA(11)[ ] (11) Moreover, choice-of-law rules, under
the claims of the class members such that California law which the trial court determines whether the law of other
should apply to non-resident plaintiffs. Appellants cite states is materially [***42] different and whether other
cases of California computer manufacturers that have states have an interest in having their law applied,
been included in nationwide class actions. (See, e.g., support the application of California law to [**431] a
Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th nationwide class. (See, e.g., Washington Mutual Bank v.
224 [110 Cal. Rptr. 2d 145] (Wershba); Wolph v. Acer Superior Court (2001) 24 Cal.4th 906, 919 [103 Cal.
America Corp. (N.D.Cal. 2011) 272 F.R.D. 477 Rptr. 2d 320, 15 P.3d 1071] (Washington Mutual).)
(Wolph).) Appellants argue the same result should be HN17[ ] The state where the injury occurs has a
applied in this case, namely, that the court should certify “‘predominant interest’” in applying its law. (McCann v.
a nationwide class. Foster Wheeler LLC (2010) 48 Cal.4th 68, 98 [105 Cal.
[*1187] Rptr. 3d 378, 225 P.3d 516] (McCann).) In addition, Civil
Code section 1646, provides that HN18[ ] “[a] contract
In Wershba, the plaintiffs sued Apple Computer, Inc., for is to be interpreted according to the law and usage of
violations of the UCL and the CLRA in connection with the place where it is to be performed; or, if it does not
Apple's decision to terminate free technical support indicate a place of performance, according to the law
promised to purchasers of certain Apple products. and usage of the place where it is made.” (Civ. Code, §
(Wershba, supra, 91 Cal.App.4th at p. 231.) This court 1646.) Here, appellants' allege that HP failed to comply
found that a nationwide class was appropriate for with its repair obligations under the express warranty.
settlement of the action because the plaintiffs had As such, the alleged injuries occurred in
established that California had sufficient contacts with California [*1188] where HP conducted the repairs, and
the claims against Apple such that application of California has the “‘predominant interest’” in applying its
California law would be constitutionally appropriate. (Id. law. (McCann, supra, 48 Cal.4th at p. 98.)
at p. 244.) In arriving at that conclusion, this court
considered the fact that Apple is a California Here, in denying certification of a nationwide class, the
corporation, with its principal place [***41] of business court noted that application of California law to non-
in Cupertino, the brochures promising free technical resident plaintiffs would not be appropriate to the extent
support were made and distributed from California, and that consumer protection laws differ in other
the policy to terminate the technical support at issue in jurisdictions, potentially affording plaintiffs better
the case was made at Apple's headquarters in remedies or more claims. The court stated: “[y]ou‘re
Page 21 of 25
asking the court to apply California law and that may be (Clothesrigger, supra, 191 Cal.App.3d at p. 613.) Such
appropriate except to the [***43] extent it may deprive consideration was not proper under choice-of-law rules.
somebody of a cause of action he would otherwise
have.” The court further noted that application of We find the trial court's order denying nationwide class
California law to non-resident plaintiffs would be certification must be reversed. The record shows that
inappropriate “to the extent that we would be depriving California had sufficient contacts with the claims such
somebody of a right where they acquired their computer that California has an interest in applying [***45] its
in another jurisdiction, perhaps from a retailer, or who laws to non-resident plaintiffs satisfying constitutional
knows where, and they're governed by other laws in principles. In addition, HP did not satisfy its burden of
those jurisdictions.” showing that other states' interests in applying their law
were greater than California's. Here, the court
CA(12)[ ] (12) The same rationale cited by the trial improperly used the possibility of differing warranty laws
court was rejected by this court in Wershba, noting, as a reason to deny nationwide certification without
HN19[ ] “California's consumer protection laws are considering whether other jurisdictions had an interest in
among the strongest in the country.” (Wershba, supra, applying those laws. Finally, the court improperly
91 Cal.App.4th at p. 242.) This court cited Clothesrigger, required appellants to demonstrate why California had a
Inc. v. GTE Corp. (1987) 191 Cal.App.3d 605 [236 Cal. “special obligation” in applying its consumer protection
Rptr. 605] (Clothesrigger) for the proposition that laws to non-resident plaintiffs. Such consideration is not
California courts may apply California's pro-consumer a proper one for a choice-of-law analysis.
laws to non-residents, stating, “‘California's more
favorable laws may properly apply to benefit
nonresident plaintiffs when their home states have no Denial of Class Certification of CLRA Claims-factual
identifiable interest in denying such persons full Background
recovery.’” (Wershba, supra, 91 Cal.App.4th at p. 243,
In between the first and second motions for class
citing Clothesrigger, supra, 191 Cal.App.3d at p. 616.)
certification, appellants moved for summary adjudication
The court in Wolph found similarly, stating, “California's
of some of HP's affirmative defenses. The court granted
interest in having its consumer protection laws applied
the motion as to the following affirmative defenses
to claims involving those notebooks outweigh any other
asserted by HP: accord and satisfaction, intervening
particular state's interest in having its laws applied.”
and superseding events, acts of third parties, and failure
(Wolph, supra, 272 F.R.D. at p. 486.)
to mitigate.
Here, because California has sufficient contacts [***44]
Appellants filed a second motion for class certification
to the claims of the class members to meet
seeking to certify the CLRA claims for class treatment.
constitutional standards, the burden was on HP to
The court denied the motion, [***46] reasoning that
demonstrate that the interests of other state's laws were
Degenshein's failure to request certification of the CLRA
greater than California's interests. (See Washington
claims estopped Giuliano-Ghahramani from requesting
Mutual, supra, 24 Cal.4th at p. 921; Wershba, supra, 91
such certification, and that certification would present
Cal.App.4th at p. 244.) Other than to refer to the
one-way intervention issues given the adverse
possibility that other jurisdictions have differing warranty
adjudication of HP's affirmative defenses.
laws that could affect consumers disparately, the court
did not address whether HP met its burden of
demonstrating that the interests of other states' laws
Analysis
were greater than California's, nor did it make such
finding. In denying appellants' request for certification of its
CLRA claims, the court determined that such
Moreover, the court improperly placed the burden on
certification was improper under Fireside Bank v.
appellants “to persuasively articulate why California has
Superior Court (2007) 40 Cal.4th 1069 [56 Cal. Rptr. 3d
a special obligation that would fairly call for it to assume
861, 155 P.3d 268] (Fireside Bank) and its prohibition
the burden of adjudicating a nationwide [**432] class
against one-way intervention. The court noted that
action.” The same reasoning was rejected in
“class certification issues must be resolved prior to any
Clothesrigger, where the trial [*1189] court denied
merits determination.” In addition, the court noted that
nationwide class certification because “California had no
appellants could have moved for certification of the
interest in becoming the ‘savior’ of the other 49 states.”
CLRA claims “years ago” and “have failed to adequately
Page 22 of 25
explain why they did not do so and should be allowed to for evidentiary sanctions against HP.
do so now.”
[*1190]
Monetary Sanctions Against Appellants
HN20[ ] CA(13)[ ] (13) The problem of one-way
intervention occurs when “not-yet-bound absent Appellants assert the court erred in ordering $4,000 in
plaintiffs may elect to stay in a class after favorable monetary sanctions against them in connection with
merits rulings but opt out after unfavorable ones.” their 2011 motion to compel documents [*1191]
(Fireside Bank, supra, 40 Cal.4th at p. 1074.) Thus, “trial requested in their July 2004 deposition subpoena of
courts in class action proceedings should decide Bizcom.10 Appellants argue the sanctions were not
whether a class is proper and, if so, order class notice appropriate because their motion to compel was not
before ruling on the substantive merits of the action.” untimely, they presented colorable arguments to the trial
(Ibid.) The doctrine is designed to prevent class court regarding the timeliness of the motion, and the
members [***47] from taking advantage of favorable sanctions order violated due process.
rulings while avoiding any res judicata effect of
unfavorable ones, essentially picking and choosing how
to proceed based on how the merits of the class Factual Background
litigation unfold.
Appellants brought a motion to compel production of
Certifying new class claims in a case such as this where documents originally demanded [***49] in a July 2004
the court had already made decisions on the merits subpoena of Bizcom. The motion to compel was filed in
[**433] would violate the proscription against one-way February 2011. The court deemed the motion untimely
intervention, in that “potential members of the class can based on Code of Civil Procedure section 2025.480,
reserve their decision to become part of the class …” subdivision (b), and while Bizcom requested monetary
until after the court has made decisions on the merits of sanctions in the amount of $38,673.25, the court
the case. (Home Sav. & Loan Assn. v. Superior Court ordered sanctions in the reduced amount of $4,000.
(1974) 42 Cal.App.3d 1006, 1011 [117 Cal.Rptr. 485].)
This creates the “classic no-win option” for HP. (Ibid.) The record shows that appellants served a deposition
Moreover, certifying a new class claim would subject HP subpoena on Bizcom on July 2, 2004, that contained 14
to “‘“‘an open-ended lawsuit that cannot be defeated, document requests. Bizcom produced documents and
cannot be settled, and cannot be adjudicated.’”’” served objections on August 27, 2004. Appellants did
(Fireside Bank, supra, 40 Cal.4th at p. 1081.) not contact Bizcom again until nearly two years later in
April 2006. At that time, appellants noted that Bizcom
We find the court properly denied appellants' request to “‘responded to [the] subpoena in 2004,’” and that
certify the CLRA claims, and the order was supported Bizcom “‘worked amicably … to respond to that
by substantial evidence. At the time of appellants' subpoena.’” Appellants further informed Bizcom that
request, the court had already ruled that HP was they would be serving a second subpoena seeking “‘a
precluded from asserting some of its affirmative subset’” of the documents requested in 2004. Bizcom
defenses. If the court allowed the requested served objections to the second subpoena request on
certification, newly added class members could join the April 14, 2006, and produced the documents requested
class with the benefit of knowing that HP would be on May 1, 2006. Four years later, in 2010, Appellants
barred from raising the adjudicated [***48] defenses. again contacted Bizcom stating [**434] their belief that
The order denying certification of the CLRA claims will Bizcom left out certain documents requested in the 2004
not be disturbed on appeal. and 2006 requests. Appellants served three separate
subpoenas on Bizcom, and on August 24, 2010, [***50]
Bizcom served objections. After participating in an
Discovery Sanctions informal discovery conference in the trial court, Bizcom
produced additional documents on September 20, 2010.
Appellants dispute three orders of the trial court
regarding discovery sanctions. The first is an order of
the trial court sanctioning appellants for an untimely 10 Neither HP, nor Bizcom assert arguments on appeal
motion to compel compliance with a subpoena of a third regarding this sanctions order. Bizcom appeared oral at
party. The other two orders denied appellants' request argument. We denied its request to argue because Bizcom did
not file a brief in this case.
Page 23 of 25
Appellants were not satisfied and sought additional the party. At the time the objections are served, the
documents. Ultimately, appellants served the motion to record of deposition is complete. (Unzipped, supra, 156
compel on February 11, 2011. Cal.App.4th at p. 136.) In reference to the 60-day
period, the Unzipped court noted that “[t]he deadline
was mandatory.” (Ibid.)
Analysis
Based on our review of the record, appellants' February
HN21[ ] “A trial court has broad discretion when 2011 motion to compel was untimely. Appellants
imposing a discovery sanction. Accordingly, the trial continued to seek documents requested in their [***52]
court's order will not be reversed on appeal in the 2004 subpoena of Bizcom for seven years. If appellants
absence of a manifest abuse of discretion that exceeds were not satisfied with Bizcom's production of
the bounds of reason … .” (Lee v. Lee (2009) 175 documents from its initial request, the time to file a
Cal.App.4th 1553, 1559 [97 Cal. Rptr. 3d 516] (Lee).) motion to compel was within 60 days of August 27,
The appellant bears the burden on appeal of 2004, the date on which Bizcom served its objections to
demonstrating that the trial court abused its discretion in the 2004 subpoena.
imposing a discovery sanction. (Young v. Rosenthal
(1989) 212 Cal.App.3d 96, 114–115 [260 Cal. Rptr. The court did not err in finding appellants' motion
369].) untimely under Code of Civil Procedure section
[*1192] 2025.480, subdivision (b), and in ordering the monetary
sanction under Code of Civil Procedure section
HN22[ ] Code of Civil Procedure section 2025.480, 2025.480, subdivision (j). The court did [**435] not
subdivision (b) provides that a motion to compel further abuse its discretion in concluding that appellants did not
answers from a deponent “shall be made no later than act with substantial justification in bringing the untimely
60 days after the completion of the record of the motion. Contrary to appellants' assertion, there is no
deposition.” Code of Civil Procedure section 2025.480, due process violation in the sanctions order in this case.
subdivision (j) provides, HN23[ ] “The court shall Appellants were on notice under Code of Civil
impose a monetary sanction under Chapter 7 Procedure section 2025.480, subdivision (j) of a
(commencing with Section 2023.010) against any party, mandatory sanction for unsuccessfully making a motion
person, or attorney who unsuccessfully makes or to compel.
opposes a motion to compel an answer or production, [*1193]
unless it finds that the one subject to the sanction acted
with substantial justification or that other circumstances
make the imposition of [***51] the sanction unjust.”
Denial of Evidentiary Sanctions Against HP
Appellants assert the court erred in ordering the
sanctions, because the 2011 motion was not untimely. Appellants sought two evidentiary orders as discovery
Appellants cite Unzipped Apparel, LLC v. Bader (2007) sanctions against HP. First, appellants sought an order
156 Cal.App.4th 123 [67 Cal. Rptr. 3d 111] (Unzipped) establishing that the TDK and Ambit inverters were
in arguing that because Bizcom agreed to produce substantially certain to fail. In addition, appellants
documents in the deposition, they “can rest assured that sought an order establishing that HP was on notice of
the 60-day period [during which it must bring a motion to and had knowledge of the defective nature of the TDK
compel] does not begin to run until the production is and Ambit inverters as of January 15, 2002.
over.” Appellants argue that Bizcom's production of
documents from the July 2004 deposition was not
complete at the time of the motion, and as a result, the Factual Background
60-day period for filing a motion to compel had not run,
and their 2011 motion was timely. The specific discovery at [***53] issue in this case was
related to monthly reports of customer calls to HP that
CA(14)[ ] (14) In Unzipped, the court specifically noted were described by HP's witness, Richard Chiaramonte,
that HN24[ ] for a business record subpoena, such as at his deposition. Mr. Chiaramonte described reports
the subpoena of Bizcom at issue here, the 60-day that contained raw numbers of overall call center traffic
period during which a motion to compel must be filed, with respect to all of HP's consumer products.
begins to run when the deponent serves objections on
At the hearing on the motion for sanctions, the court
Page 24 of 25
asked appellants to provide a declaration from their 3d 465].) The sanctions appellants requested were
expert, describing what information was missing from sweeping evidentiary conclusions that were the heart of
HP's production of documents related to call data that appellants' theory of HP's liability—namely [***55] that
would be relevant. The court stated: “[a]nd [appellant]s’ the TDK and Ambit inverters were substantially certain
counsel, you have got, I presume, at this point, an to fail and HP had knowledge of this fact in January
expert retained who has reviewed materials … . [¶] … 2002. If the sanctions were ordered, it would provide a
[¶] … I want a declaration from that expert that tells the windfall to appellants relieving them of their burden of
Court what that expert thinks he or she needs to testify proving their theory of liability. In denying appellants'
at trial and which they haven't received. In other words, request for these sanctions, the trial court properly
if they say I don't—I can't issue an opinion because I am followed McGinty, and its rationale that the purpose of
missing X, Y, and Z.” Appellants did not provide the discovery sanctions is not avoidance of a decision on
requested information to the court. the merits.
Analysis DISPOSITION
CA(15)[ ] (15) As stated above, HN25[ ] a trial court The summary adjudication of the UCL claims of
has broad discretion when imposing a discovery Degenshein, Giuliano-Ghahramani and the class in the
sanction. (Lee, supra, 175 Cal.App.4th at p. 1559.) first and second amended complaints in favor of HP is
Although the court has discretion in choosing a reversed.
sanction, this discretion must be exercised in a manner
consistent with [***54] the basic purposes of such The no merits determination as to the CLRA claims of
sanctions, e.g., to compel disclosure of discoverable Degenshein and Giuliano-Ghahramani in the first and
information. (In re Marriage of Economou (1990) 224 second amended complaints in favor of HP is reversed.
Cal.App.3d 1466, 1475 [274 Cal. Rptr. 473].) Courts
The summary adjudication of the breach of express
have continued to uphold the principle cited in Caryl
warranty claim of Degenshein in favor of HP is affirmed.
Richards, Inc. v. Superior Court (1961) 188 Cal.App.2d
300 [10 Cal. Rptr. 377] that sanctions may not be The summary adjudication of the breach of express
imposed solely to punish the offending party. (McGinty warranty claim of Giuliano-Ghahramani and the class in
v. Superior Court (1994) 26 Cal.App.4th 204, 214 [31 favor of HP is reversed.
Cal. Rptr. 2d 292] (McGinty) [“punishment is not an
appropriate aim of discovery sanctions”].) Furthermore, The order denying certification of the CLRA claims is
the sanction chosen should not provide a windfall to the affirmed.
other party, by putting the prevailing party in a better
position than if he or she had obtained the discovery The order denying certification of a nationwide class is
sought and it had been favorable. (Id. at p. 214; Deyo v. reversed.
Kilbourne (1978) 84 Cal.App.3d. 771, 793 [149 Cal.
The order imposing monetary sanctions against [***56]
Rptr. 499].)
appellants is affirmed.
[*1194]
[*1195]
Appellants argue the court abused its discretion in
The order denying evidentiary sanctions against HP is
failing to order the evidence sanctions they sought. In
affirmed.
support of this assertion, appellants point to the fact that
over the course of litigation in this case, the court Each party shall bear its own costs on appeal.
ordered HP to respond to appellants' discovery requests
at least seven times, and appellants sought and Elia, J., and Walsh, J.,* concurred.
obtained six orders to enforce prior orders.
A petition for a rehearing was denied August 21, 2015,
[**436] On appeal, appellants do not demonstrate that
the court's refusal to order their requested evidentiary
sanctions constituted “‘“manifest abuse exceeding the
* Judge of the Santa Clara Superior Court assigned, by the
bounds of reason.”’” (Doe v. United States Swimming,
Inc. (2011) 200 Cal.App.4th 1424, 1435 [133 Cal. Rptr. Chief Justice pursuant to article VI, section 6 of the California
Constitution.
Page 25 of 25
and the opinion was modified to read as printed above.

The petition of respondent Hewlett-Packard Company
for review by the Supreme Court was denied November
10, 2015, S228989.
End of Document

Rutledge v. Hewlett-Packard Co., 238 Cal. App. 4th 1164

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Rutledge v. Hewlett-Packard Co.

ED RUTLEDGE et al., Plaintiffs and Appellants, v.

HOLDINGS: [1]-Fact issues as to whether notebook

Rutledge (Ed) v. Hewlett-Packard Company, 2012 Cal.

production of his own to make a prima facie showing of

HN1[ ] Summary Judgment, Entitlement as Matter

The moving party must satisfy his or her initial burden

A cause of action has no merit under Code Civ. Proc., §

HN7[ ] Deceptive & Unfair Trade Practices, State

Sellers are permitted to puff their products by stating

See Civ. Code, § 1646.

Civil Procedure > ... > Discovery > Misconduct Headnotes/Summary

HN23[ ] Misconduct During Discovery, Motions to Summary

A trial court has broad discretion when imposing a

Headnotes Practices—Fraudulent Omission.

CALIFORNIA OFFICIAL REPORTS HEADNOTES For a claim of fraudulent omission to be actionable

CA(2)[ ] (2) Unfair Competition § 4—Acts Constituting—Fraudulent

Defects and Knowledge. Warranty—Repaired Product Failure after Warranty

California's consumer protection laws are among the

CA(14)[ ] (14) Opinion by: Rushing, P. J.

Discovery and Depositions § 23—Inspection of Records

HN3[ ] “The moving party must satisfy his or her initial

In support of their argument that failure to repair can

[**429] Class Certification Orders In denying appellants' request to certify a nationwide

HN16[ ] CA(10)[ ] (10) A nationwide class is proper California. (Id. at p. 242.)

and the opinion was modified to read as printed above.

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