Opinion
No. 2:12-CV-00568-KJM-CKD (TEMP)
07-01-2016
JAMES WILSON, an individual, and JACK WHITE, an individual, on behalf of themselves and all others similarly situated, Plaintiffs, v. METALS USA, INC., a Delaware Corporation, and DOES 1-100, inclusive, Defendant.
ORDER
James Wilson and Jack White purchased roof tiles manufactured by Dura-Loc Roofing Systems Limited. They allege those tiles were defectively designed because over time, as the tiles were exposed to air and sunlight, they lost their color. Because Dura-Loc gave them a written warranty promising the tiles were "UV resistant," Wilson and White allege violations of California Commercial Code section 2313. They bring this action against Metals USA, Inc., the alleged successor to Dura-Loc's liability.
Wilson and White propose to represent a class of property owners who purchased similarly defective tiles. They move for class certification, and Metals USA opposes the motion. The court held a hearing on December 4, 2015. Gene Stonebarger and Richard Lambert appeared for the plaintiffs, and Frank Busch, Bart Dalton, and Adrian Sawyer appeared for the defendant. For the reasons described below, the motion is granted.
I. FACTUAL BACKGROUND
A few details about Dura-Loc and its roofing tiles help set the stage. Dura-Loc began in Ontario, Canada in 1984. Reid Decl. ¶ 15, ECF No. 81-3. Between 1985 and 2006, it manufactured part-metal, part-stone, layered roofing tiles. Id.; see also Stonebarger Decl. Ex. D, at MUSA 003923, ECF No. 81-3. The base or substrate layer is pressure-formed by galvanized steel. Stonebarger Decl. Ex. D, at MUSA 003923. The tiles' top sides, which were the sides eventually exposed to the elements, were coated with crushed stone chips, granules of "Colorquartz Aggregate" manufactured by 3M. See Dalton Decl. Exs. B, D, ECF No. 82-2. Overall, each tile is a little more than four feet wide and about fifteen inches deep. See Stonebarger Decl. Ex. D, at MUSA 003923. When installed on a roof, each tile overlaps with adjacent tiles to protect the structure below. Id.
This case concerns three specific types of tiles, the "Continental," "Shadowline," and "Wood Shake" product lines. All three have the same structure and composition. See, e.g., Stonebarger Decl. Exs C, E, G, H, S, T, X, ECF Nos. 81-3, 81-4; see also Harlan Rep. 3, ECF No. 81-29. The tiles were also manufactured using the same process: After a protective coating was applied to the tiles' backsides, a layer of acrylic basecoat was applied at a thickness of between 14 and 18 thousandths of an inch. See Dalton Decl. Ex. F, at 7. A layer of colored granules was then dropped onto the basecoat, and the tiles were baked in an oven until dried. Id. at 7-8. Finally, a topcoat layer was applied, and the tiles were baked again until dry. Id. at 8.
The tiles in each product line were available with several different colors of stone granules: "Continental" in four colors; "Shadowline" in two colors, and "Shake" or "Wood Shake" in four colors. See Dalton Decl. Ex. E, at 8, ECF No. 82-2; id. Ex. F, at 8. The granules do not block ultraviolet light completely. Their transparency to ultraviolet light varies by color; ///// ///// ///// between 22 percent and 93 percent of the ultraviolet light that strikes the granules passes through them. Third Am. Compl. Ex. I, at PLS0000025, ECF No. 78-9.
This document is a "3M Technical Bulletin" dated January 1995, and the accuracy of its contents appears undisputed at this stage. See Opp'n Class Cert. 3 & n.2, ECF No. 82.
Metals USA entered the picture in 2006, when it purchased Dura-Loc's operating assets, including its manufacturing facility in Ontario, Canada. See Reid Decl. ¶¶ 14-15. According to the purchase agreement, Dura-Loc and two of its principal shareholders agreed to indemnify Metals USA for any damages incurred as a result of Dura-Loc's warranty obligations, among many other provisions not relevant to this motion. See Stonebarger Decl. Ex. AA, ¶ 6.1, ECF No. 81-5. After the purchase, Metals USA changed the stone and basecoat Dura-Loc had been applying to the Dura-Loc tiles to match those used by a Metals USA affiliate. Obj. & Resp. Interrog. 5, ECF No. 81-6. Dura-Loc then ended operations and changed its name to "604471 Ontario, Inc." Id. ¶ 14. Later, in 2012, it filed for bankruptcy. Id.
Plaintiff James Wilson bought Dura-Loc's "Wood Shake"-style metal roofing tiles in 2004, before Metals USA purchased Dura-Loc's assets, to install on his home in Roseville, California. Wilson Decl. ¶ 2, ECF No. 81-10. Wilson chose Dura-Loc's tiles because they came with a written warranty guaranteeing, as he understood it, that the tiles were resistant to ultraviolet light and would not deteriorate for at least twenty-five years after installation. Id. In about June 2011, however, Wilson noticed the tiles installed on his roof had begun to deteriorate: they had lost some of their stone coating and granular texture. Id. ¶ 4. He contacted a division of Metals USA, whose customer service department responded with a letter explaining Metals USA did not manufacture or sell Dura-Loc tiles and that any warranty claims were the responsibility of 604471 Ontario. Id.; see also id. Ex. C, ECF No. 81-13. Wilson contacted 604471 Ontario, who required the refundable $400 "service fee" before it would begin investigating his claim. See id. ¶ 4; see also id. Ex. D, ECF No. 81-14. It does not appear Wilson paid the $400 fee. See Wilson Dep. 42-44, ECF No. 82-2. His Dura-Loc tiles continue to deteriorate, and have now lost most of their original color and texture. Id. ¶ 5.
A copy of Wilson's warranty is on file. See Wilson Decl. Ex. A, ECF No. 81-11. Its specific terms are relevant and worth reviewing in some detail:
• The warranty applies to all three product lines, "Continental," "Shadowline," and "Wood Shake," both panels and trim.
• Dura-Loc guaranteed that "for a period of 25 years following proper installation, the surface coating of the Dura-Loc product shall be UV resistant* and will not deteriorate as a result of a manufacturing defect to the extent that the appearance of the roof is substantially affected." The asterisk after the words "UV resistant" refers to a note that "[a]t the date of installation, the coating will meet or exceed industry standards when tested to ASTM 4214-89 standards given the service life of the roof."
• If the purchaser files a claim, "taking all circumstances into account, Dura-Loc will, at is sole option, either repair or replace the affected Product or apply its then current colour coordinated acrylic thereto."
• Dura-Loc's total liability is limited to the actual purchase price paid by the original purchaser for the first fifteen years after installation and "thereafter a declining balance of such amount reduced on a pro rata basis of the remaining 10 year period."
• The warranty covers only purchasers who register their purchase by mail within ninety days of installation. If the warranty is not properly registered, it lasts only two years.
• If the tiles are installed and the property is sold, the warranty applies to the subsequent purchaser only if he or she gives written notice of the sale within ninety days and pays a registration fee of $25.
• The purchaser must give written notice of any claim under the warranty within thirty days of discovering a defect.
• To make a claim, the purchaser must send a copy of the limited warranty, proof of the date of purchase and installation, and a refundable service fee of $400, "the
estimated cost of investigating each complaint." "Failure to comply with [this] notification requirement will invalidate the Limited Warranty."
• "Any objection, complaint, suit, legal proceeding or action" arising from the warranty must be brought within one year of the date Dura-Loc takes corrective measures or communicates its denial of a claim, and "claimant hereby waives all statutory and common law periods of limitation in excess of [the one-year period]."
Jack White, the second plaintiff named in the caption, tells a story similar to Wilson's. White bought Dura-Loc's "Wood Shake" tiles in June 2004 and installed them on his home in Orangevale, California. White Decl. ¶ 2, ECF No. 81-16. He also relied on Dura-Loc's guaranty that its tiles were resistant to ultraviolet radiation and would not deteriorate for at least twenty-five years. Id. Like Wilson, he noticed in June 2011 that his tiles had begun to deteriorate. Id. ¶ 4. And like Wilson's tiles, White's tiles have lost most of their original color and texture. Id. ¶ 5. Unlike Wilson, however, White does not explain whether he filed a warranty claim or contacted Metals USA or 604471 Ontario. See generally id. It appears he did not. See White Dep. 16-17, ECF No. 82-2. The record does not include a copy of his warranty.
Wilson and White have filed declarations from about sixty others who purchased Dura-Loc roofing tiles. See Class Member Declarations, ECF Nos. 81-17 to -28. These customers' tiles also degraded within a few years of installation. See generally id. Many of these customers' declarations are accompanied by copies of warranty agreements whose terms are similar or identical to those of Wilson's warranty, with two exceptions. First, it appears Dura-Loc did not include the $400 service fee in its warranties until in or about 2003 or 2004. Compare, e.g., Class Member Decl. No. 36 (Heep), Ex. A, ECF No. 81-24 (no service fee; dated April 1, 2003), with, e.g., Wilson Decl. Ex. A (service fee; dated Sept. 1, 2004). Second, warranties issued before in or about 2003 or 2004 appear not to impose a registration requirement on original purchasers, and likewise allow no alternative two-year warranty period. Compare, e.g., Heep Decl. Ex. A, with, e.g., Wilson Decl. Ex. A. Aside from these differences, the parties agree the warranties' terms remained the same between 1996 and 2006.
To investigate what caused the tiles' degradation, White and Wilson engaged Harold Harlan, a chemist. Harlan analyzed the exterior coating of several unused Dura-Loc tiles manufactured between 1999 and 2006. See Harlan Rep. at 1. He also tested three used tiles that had been installed on Jack White's roof; two tiles from the north side and one from the south side. See id. He subjected these tiles to Fourier transform infrared spectroscopy (FTIR), a test used to determine the chemical composition of a given material based on the spectrum of infrared light it absorbs. See id. at 2. Harlan concluded the exterior coating of all the tiles he tested was "similar, if not identical," and consisted of a mixture of three acrylic polymers and quartz silica sand. Id. at 3. As for the three used tiles, he reported that the south-side tile and one of the north-side tiles emitted light in a spectrum that indicated their acrylic polymers had broken down after exposure to ultraviolet light and air. Id. at 3-4. One of the north-side tiles did not. Id. at 4. In addition, only the south-side tile displayed visual degradation. See id. at 3-4. Mr. Harlan expected, given the similar composition of all the tiles he tested, that if all had been exposed to the same light and air as the south-side sample tile had been, all would have exhibited the same visual and chemical degradation. Id. at 4.
Given Harlan's test results and their own observations, Wilson and White allege that when Dura-Loc's tiles are exposed to a few years of sunlight and air, the layer of resin between the tiles' steel base and the colored stone granules is compromised, and the granules fall off. They argue that because the tiles at issue were all manufactured by the same process and to the same specifications, the defect is in the tiles' design and is common to every tile.
Metals USA disagrees. It engaged another chemist, Richard Cechner, to analyze roof tiles from Wilson's and White's homes. See Cechner Rep. 1, ECF No. 82-3. Cechner reviewed Dura-Loc's technical and quality control manuals, visited Wilson's and White's homes, and examined samples of their roof tiles, both used and unused. See generally id. He estimated that when dried, the layer of acrylic between the tiles' metal base and the colored granules should have been about 6 to 9 thousandths of an inch thick, if it had been applied as specified in Dura-Loc's quality control manual. See id. at 2. He then examined cross-sections of the sample tiles from Wilson's and White's roofs, and found that in many instances the dried layer of acrylic was less than 6 thousandths of an inch thick. Id. at 3-4. In other instances, he found no evidence to show a topcoat layer was ever applied, and sometimes granules were not seated well in the dried basecoat. Id. Based on this investigation, he concluded that the longevity of the bond between the metal base and the colored granules depended on both how thickly and evenly the acrylic basecoat was applied and whether a topcoat was applied. Id. at 4. He also concluded the sample tiles he tested did not comply with the specifications in Dura-Loc's quality control manuals. Id. It is therefore Metals USA's theory that the plaintiffs' tiles did not suffer from a design defect, but a manufacturing defect. See Opp'n 14-15, 27-28.
II. PROCEDURAL HISTORY
That brings us to this case. Wilson and White filed a complaint in this court in March 2012 against 604471 Ontario, Inc. and Allan Reid, allegedly a former Dura-Loc executive. Compl., ECF No. 1. Essentially, they allege that contrary to Dura-Loc's warranty, the roofing tiles were not "UV resistant" and degraded over time by shedding their layer of stone granules. In their first complaint, they alleged three claims: fraudulent concealment or non-disclosure, Cal. Civ. Code §§ 1709, 1710(3); violations of the California Consumer Legal Remedies Act (CLRA), Cal. Civ. Code §§ 1750 et seq.; and violations of the California Unfair Competition Law (UCL), Cal. Bus. & Prof. Code §§ 17200 et seq. Id. They later amended the complaint to substitute Metals USA as a defendant in place of 604471 Ontario and to add claims for breaches of express warranties under California Commercial Code section 2313 and 15 U.S.C. § 2301. See First Am. Compl., ECF No. 11.
Reid moved to dismiss the claim against him for lack of personal jurisdiction, ECF No. 22, and the court dismissed the complaint with leave to amend, ECF No. 34. Plaintiffs filed a second amended complaint, omitting Reid as a defendant and advancing only claims for breach of written warranties and violations of the CLRA and UCL. See Second Am. Compl., ECF No. 49. Metals USA moved to dismiss, arguing the complaint lacked sufficient factual allegations to make out a plausible claim for its liability under a theory of successor liability. ECF No. 50. The court denied the motion, ECF No. 57, and Metals USA answered, ECF No. 59. /////
Plaintiffs filed a third amended complaint by stipulation, ECF Nos. 76, 77, and that pleading remains operative, see Third Am. Compl., ECF No. 78. The case now proceeds on two claims for breach of express warranty, California Civil Code sections 1790 et seq. and Commercial Code section 2313, and on the previously asserted claims for violations of the CLRA and UCL. Metals USA is the only remaining defendant.
On September 4, 2015, plaintiffs moved for class certification of only one claim: breach of express warranty under Commercial Code section 2313. See Mot. Class Cert., ECF No. 81; Mem. P. & A. at 14, ECF No. 81-1; Reply 1 & n.1, ECF No. 83. Metals USA opposed the motion, Opp'n, ECF No. 82, and the plaintiffs replied, Reply, ECF No. 83. Wilson and White propose the following class definition:
All individuals and entities that own homes or other structures located in the State of California on which Dura-Loc Roofing Systems Limited's Continental, Shadow line, or Wood Shake stone coated steel roof shingles were installed during the period of time beginning July 1, 1996 through May 12, 2006.Mem. at 10.
Following the court's hearing on December 4, 2015, plaintiffs submitted an unsolicited supplemental brief addressing a California Civil Code section discussed at hearing, California Civil Code § 1797.94, and whether it applies to this case. ECF No. 86. In general, section 1797.94 concerns whether home roof warranties are enforceable by one who is not the original purchaser. Metals USA filed a supplemental brief opposing the plaintiffs' interpretation of that section. ECF No. 87. Because no objections to these briefs were filed, and each party has had an opportunity to express its views, the court considers their merits here.
III. LEGAL STANDARD
Litigation by class action is "an exception to the usual rule" that only the individual named parties bring and conduct lawsuits. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011) (citation and internal quotation marks omitted). Only when a class action would promote the "efficiency and economy of litigation" should a motion for certification be granted. Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 349 (1983). Class certification is governed by Federal Rule of Civil Procedure 23. To be certified, a putative class must meet the threshold requirements of Rule 23(a) and the more specific requirements of one of three classes defined in Rule 23(b). Leyva v. Medline Industries Inc., 716 F.3d 510, 512 (9th Cir. 2013).
Rule 23(a) imposes four requirements on every class. First, the class must be "so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1). Second, questions of law or fact must be common to the class. Id. R. 23(a)(2). Third, the named representatives' claims or defenses must be typical of those of the class. Id. R. 23(a)(3). And fourth, the representatives must "fairly and adequately protect the interests of the class." Id. R. 23(a)(4).
Here, the plaintiffs seek certification under Rule 23(b)(3), which imposes two additional requirements: first, "that the questions of law or fact common to class members predominate over any questions affecting only individual members," and second, "that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." The test of Rule 23(b)(3) is "far more demanding," than that of Rule 23(a). Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1172 (9th Cir. 2010) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623-24 (1997)).
"The party seeking class certification bears the burden of demonstrating that the requirements of Rules 23(a) and (b) are met." United Steel, etc. v. ConocoPhillips Co., 593 F.3d 802, 807 (9th Cir.2010). This burden is real; Rule 23 embodies more than a "mere pleading standard." Wal-Mart, 564 U.S. at 350. The moving party must "prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc." Id. (emphasis in original). The trial court must then conduct a "rigorous analysis" of whether the party has met its burden, id., and "analyze each of the plaintiff's claims separately," Berger v. Home Depot USA, Inc., 741 F.3d 1061, 1068 (9th Cir. 2014) (citing Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 809 (2011)). The court must verify the putative class's "actual, not presumed, conformance with Rule 23(a) . . . ." Wal-Mart, 564 U.S. at 351 (alterations omitted) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982)). This inquiry often overlaps with consideration of the merits of the plaintiffs' substantive claims. Id. at 351-52. Indeed, "a district court must consider the merits if they overlap with the Rule 23(a) requirements." Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011) (emphasis in original); see also Comcast Corp. v. Behrend, ___ U.S. ___, 133 S. Ct. 1426, 1433 (2013) ("[O]ur cases requir[e] a determination that Rule 23 is satisfied, even when that requires inquiry into the merits of the claim.").
IV. DISCUSSION
A. Numerosity
To be certified, a class must be "so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1). Here, the parties do not contest the sufficient numerosity of the proposed class, which plaintiffs estimate will include about one thousand members. It is sufficiently numerous. See, e.g., Rannis v. Recchia, 380 F. App'x. 646, 651 (9th Cir. 2010) (courts generally find the numerosity requirement satisfied when a class includes at least forty members); see also Murillo v. Pac. Gas & Elec. Co., 266 F.R.D. 468, 474 (E.D. Cal. 2010) (collecting authority and finding a class of approximately 1,000 sufficiently numerous).
B. Adequacy
Rule 23(a) refers to the adequacy of both class representatives and class counsel. See Falcon, 457 U.S. at 157 n. 13; Ellis, 657 F.3d at 985. "Adequate representation depends on, among other factors, an absence of antagonism between representatives and absentees, and a sharing of interest between representatives and absentees." Ellis, 677 F.3d at 985. The adequacy requirement is of constitutional provenance, as "it would violate the Due Process Clause of the Fourteenth Amendment to bind litigants to a judgment rendered in an earlier litigation to which they were not parties and in which they were not adequately represented." Richards v. Jefferson Cty., Ala., 517 U.S. 793, 794 (1996).
Here, Metals USA does not dispute the adequacy of plaintiffs' counsel, Opp'n 12 n.11, but argues Wilson and White are not adequate representatives. It points out two potential conflicts of interests. First, it suggests the proposed class definition allows both current and former owners of the same roof to seek redress for the same injury. This argument may be rejected out of hand. The proposed class definition includes only current owners of structures on which the allegedly defective roof tiles were installed. /////
Second, Metals USA points out that both named plaintiffs are owners of roof tiles that have already degraded, and may have little incentive to protect the interests of those whose tiles have not yet degraded. A conflict of interest between class members is one object of the Rule 23(a) adequacy inquiry, Amchem, 521 U.S. at 625, but the conflict identified by Metals USA does not prevent certification here.
In general, class members and class representatives must possess the same interests and must have suffered the same injury. Id. Amchem is one classic case of intra-class conflict. In that case, the parties proposed a settlement class. Id. A conflict arose over the allocation of settlement funds. Id. The Supreme Court found the class could not be certified, among other reasons because the putative class faced internal conflicts of interest: some class members sought recompense for injuries they had already sustained, and their "critical goal [was] generous immediate payments," whereas those whose injuries had not yet materialized had a conflicting interest "in ensuring an ample, inflation-protected fund for the future." Id. at 626. In short, some plaintiffs had an interest in maximizing and distributing current funds, whereas others had an interest in preserving resources.
The putative class here faces no such internal rifts. Two analogous cases show why. First, in Hanlon v. Chrysler Corporation, the Ninth Circuit found the class faced no fatal conflict of interest. Each potential plaintiff had the same potential problem with his or her minivan: an allegedly defective latch, which would require repair or compensation. 150 F.3d at 1021. The severity of each person's injury was similar, the class representatives included representatives from each state to avoid conflicts arising from state law, and no inherently variable personal injury or wrongful death claims were included in the class claims. Id. Each class member was treated similarly, even identically. Id.
Second, in Dewey v. Volkswagen AG, the plaintiff class alleged their cars had leaky sunroofs. 681 F.3d 170, 174 (3d Cir. 2012). The district court approved a settlement plan to distribute up to $8 million to one group of class members to reimburse them for damages sustained. Any leftover funds would be distributed to a residual group whose members could make "goodwill" claims. The Third Circuit found this division created no adequacy problem. Unlike in Amchem, the circuit court reasoned, "[a] class member who has already suffered leakage, and is thus a 'past' claimant, can continue to suffer leakage into the future to the same extent as a future claimant, and can continue to make future claims. As such, past claimants also have an incentive to protect the ability of class members to make claims for future damage." Id. at 185-86 (footnote omitted).
Here, as in Hanlon and Dewey, and unlike in Amchem, each class member has the same problem: the roof tiles they bought suffer from a defect that may cause them to shed their top layer and lose their color. No personal injury, wrongful death, state law, or other structural divisions will poison one subgroup against another. This is true regardless of whether the putative class members' roof tiles have already degraded or may later degrade. Moreover, the putative class here is not a settlement class. The problems associated with settlement classes—most importantly a settlement fund limited to a specific, predetermined value—do not set up the putative class members here against one another as was the case in Amchem.
The named plaintiffs and their counsel are adequate representatives.
C. Typicality
Rule 23(a) requires the plaintiffs to demonstrate the representatives' claims and defenses are typical of the class. Typicality turns on the nature of the claims or defenses asserted, not the facts from which they arise. Ellis, 657 F.3d at 984. "The purpose of the typicality requirement is to assure that the interest of the named representative aligns with the interests of the class." Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). Accordingly, the representative must be a part of the class and "possess the same interest and suffer the same injury" as the other putative class members. Falcon, 457 U.S. at 156 (citation and internal quotation marks omitted). But these interests and injuries "need not be substantially identical." Hanlon, 150 F.3d at 1020.
More specifically, a representative plaintiff may be atypical of the class if he or she would be subject to unique defenses the other class members would not face. A motion for class certification should therefore be denied if the named plaintiff "is preoccupied with defenses unique to it." Ellis, 657 F.3d at 984 (quoting Hanon, 976 F.2d at 508). In Hanon, for example, the Ninth Circuit found the named plaintiff faced unique defenses "as a result of his extensive experience in prior securities litigation, his relationship with his lawyers, his practice of buying a minimal number shares of stock in various companies, and his uneconomical purchase of only ten shares of stock." 976 F.2d at 508. He was therefore an inappropriate class representative. Id. at 509. But a defense is not unique, no matter how forceful, if it is "typical of claims [the defendant] will raise against the class as a whole." Ellis v. Costco Wholesale Corp., 285 F.R.D. 492, 534 (N.D. Cal. 2012).
Metals USA argues Wilson's and White's claims are atypical of the class's claims for three reasons. First, it points out that both Wilson and White purchased Wood Shake shingles, but seek to represent a class of customers who purchased Continental and Shadow line tiles. It is correct that differences in product designs or make-up may preclude certification of class claims for design defects. See, e.g., Johnson v. Harley-Davidson Motor Co. Grp., LLC, 285 F.R.D. 573, 579 (E.D. Cal. 2012) ("[T]he class vehicles do not have a uniform design across the different models. . . . [T]here are more than 130 configurations and numerous factors affecting heat in the class vehicles."). Likewise, if a representative did not purchase the allegedly defective product, he or she may not represent class members who did. Gonzalez v. Procter & Gamble Co., 247 F.R.D. 616, 621 (S.D. Cal. 2007) (class representative's claims not typical because "the evidence in the record shows that the product Plaintiff purchased was not the subject of specific hair strengthening claims during the proposed class period"). Here, however, the record lacks any indication that Wilson's and White's tiles were designed differently than the other putative class members' tiles. Rather, as described above, the record suggests the tiles were designed and manufactured very similarly, if not identically.
Second, Metals USA argues each type of tile came in different colors, and the tiles' UV resistance varies by color. This varying UV resistance leads to variation in the degradation of each tile over time, such that two tiles on the same roof, installed at the same time, facing the same direction may degrade at different rates. In cases of allegedly defective products, a class may be certified even if the plaintiff does not prove the alleged defect manifested itself in every product the class owns, let alone that a problem manifested itself in different ways. Baker v. Microsoft Corp., 797 F.3d 607, 610 (9th Cir. 2015), cert. granted in part on other grounds, 136 S. Ct. 890 (2016); see also Wolin, 617 F.3d at 1175 ("Typicality can be satisfied despite different factual circumstances surrounding the manifestation of the defect."). The timing of the defect's manifestation is a question of damages, not class certification. Baker, 797 F.3d at 611 (citing Wolin, 617 F.3d at 1175). Thus the class may be certified despite the tiles' varying rates of degradation. Here, the alleged defect is the same, no matter how quickly it manifested: the tiles are not UV resistant. The court acknowledges Metals USA's argument that the defect is not a design defect, but a manufacturing defect, and that therefore no single homeowner can have claims typical of another; however, this is a question of the merits, one the court need not reach at the class-certification stage.
The Supreme Court granted the petition for a writ of certiorari "limited to the following question: Whether a federal court of appeals has jurisdiction under both Article III and 28 U.S.C. § 1291 to review an order denying class certification after the named plaintiffs voluntarily dismiss their individual claims with prejudice." Id.
Third, although Metals USA does not raise the argument directly, it notes that Wilson and White appear to have conceded in their depositions that they did not comply with their warranties' notice conditions. See Opp'n at 6 (citing Wilson Dep. 42-44 and White Dep. 16-17). Although compliance with the warranty's terms may present an obstacle for Wilson and White, non-compliance is a defense Metals USA intends to assert against the class as a whole, see Opp'n at 18-19, and does not preclude certification.
The claims and defenses are typical of the class.
D. Commonality and Predominance
The court first reviews the requirements of commonality and predominance in general, and second considers the application of these principles to this case.
1. In General
Rule 23(a) requires "questions of law or fact common to the class." Fed. R. Civ. P. 23(a)(2). Common questions exist when class members suffer the same injury, Falcon, 457 U.S. at 156, such that simultaneous litigation is productive, Wal-Mart, 564 U.S. at 349-50. "This does not mean merely that [class members] have all suffered a violation of the same provision of law." Id. at 350. Rather, the claims "must depend upon a common contention," the nature of which "is capable of classwide resolution." Id. Common litigation must "resolve an issue that is central to the validity of each one of the claims in one stroke." Id. Although just one common question could suffice to establish commonality, id. at 2556, the true inquiry is into "the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation," id. at 359 (emphasis in original) (citation and internal quotation marks omitted). "Dissimilarities within the proposed class . . . have the potential to impede the generation of common answers." Id. (citation and internal quotation marks omitted).
After establishing the existence of common questions of law or fact, the proponent of a putative class must also establish that these questions "predominate over any questions affecting only individual members." Fed. R. Civ. P. 23(b)(3). The party seeking certification must show "(1) that the existence of individual injury resulting from the alleged . . . violation . . . [is] capable of proof at trial through evidence that is common to the class rather than individual to its members; and (2) that the damages resulting from that injury [are] measurable on a class-wide basis through use of a common methodology." Comcast, 133 S.Ct. at 1430 (citation and internal quotation marks omitted). "The predominance analysis under Rule 23(b)(3) focuses on 'the relationship between the common and individual issues' in the case and 'tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.'" Wang v. Chinese Daily News, Inc., 737 F.3d 538, 545 (9th Cir. 2013) (quoting Hanlon, 150 F.3d at 1022). Courts are required "to take a 'close look' at whether common questions predominate over individual ones," Comcast, 133 S. Ct. at 1432 (quoting Wal-Mart, 564 U.S. at 615), "begin[ning] . . . with the elements of the underlying cause of action," Erica P. John Fund, Inc., 563 U.S. at 809. Rule 23(b)(3) is therefore "more demanding than Rule 23(a)." Comcast, 133 S. Ct. at 1432.
Nevertheless, some variation is permitted among individual plaintiffs' claims, Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 963 (9th Cir. 2013), and the proponent of a class need not "prove that each element of her claim is susceptible to classwide proof," Amgen, Inc. v. Conn. Ret. Plans & Trust Funds, ___ U.S. ___, 133 S. Ct. 1184, 1196 (2013) (citations, internal quotation marks, and alterations omitted). Similarly, because "'individualized monetary claims belong in Rule 23(b)(3),'" "the presence of individual damages cannot, by itself, defeat class certification . . . ." Leyva, 716 F.3d at 514 (quoting Wal-Mart, 564 U.S. at 362). Neither must a plaintiff show at the certification threshold that predominant questions will be answered in her favor. Amgen, 133 S. Ct. at 1196. The court considers the merits only to the extent required by Rule 23. Id. at 1194-95 (citing Wal-Mart, 564 U.S. at 351 n. 6).
As noted above, the commonality and predominance inquiries begin with the elements of the plaintiffs' claims. Erica P. John Fund, Inc., 563 U.S. at 809. The court therefore briefly reviews the elements of the plaintiffs' claim under California Commercial Code section 2313. That section provides, "Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise." Cal. Com. Code § 2313(1)(a). From this language California courts have distilled three elements "(1) the seller's statements constitute an 'affirmation of fact or promise' . . . ; (2) the statement was 'part of the basis of the bargain'; and (3) the warranty was breached." Weinstat v. Dentsply Int'l, Inc., 180 Cal. App. 4th 1213, 1227 (2010). Some cases mention a fourth element: the breach caused injury to the plaintiff. See, e.g., Asghari v. Volkswagen Grp. of Am., Inc., 42 F. Supp. 3d 1306, 1333 (C.D. Cal. 2013); Williams v. Beechnut Nutrition Corp., 185 Cal. App. 3d 135, 142 (1986).
2. The Plaintiffs' Claims Here
The general discussion above raises two questions: first, which if any of the questions presented in this case are common, and second, whether these common issues predominate. To address these questions, the court first considers whether several aspects of this case present common or individualized questions of law or fact. The first four of these aspects are tied to the four elements of the plaintiffs' claims. The fifth concerns one of Metals USA's affirmative defenses, the statute of limitations. The sixth and seventh are factual matters particular to this case: whether the tiles' degradation is attributable to a manufacturing or design defect and whether Metals USA is liable as a successor to Dura-Loc. As discussed below, several of these issues present common questions of law or fact. The court therefore balances the ///// common issues against the individual issues to determine whether common questions predominate.
a) Affirmation of Fact or Promise or Description of the Goods
The parties do not dispute that the written warranty in question here governs Dura-Loc's agreement with each of its customers, and with the exception of the $400 service fee and original-purchaser notice provisions, essentially the same warranty was in force throughout the proposed class period. Each putative class member's claim therefore depends on the effect of the same promise: that the tiles are "UV-resistant" as defined in the warranty. The warranty's existence and scope are common questions of fact, and the warranty's application to the tiles is a common question of law.
b) Basis of the Bargain
Section 2313 "creates a presumption that the seller's affirmations go to the basis of the bargain." Weinstat, 180 Cal. App. 4th at 1227. This means that when the seller presents the buyer with an express, written warranty, the seller's argument that the warranty was not part of the deal between the two is unpersuasive. See In re MyFord Touch Consumer Litig., 46 F. Supp. 3d 936, 973 (N.D. Cal. 2014). The written warranty's presence obviates any individual determination of whether the warranty formed the "basis of the bargain" between each class member and Dura-Loc.
Here the proposed class definition sweeps in more than original purchasers of Dura-Loc tiles. It includes "[a]ll individuals and entities that own homes or other structures located in the State of California on which Dura-Loc [shingles] were installed . . . ." Mem P. & A. at 10. In the face of this definition, section 2313's presumption lacks persuasive force with respect to those putative class members who purchased buildings on which the tiles were already installed. Dura-Loc's warranties do anticipate applicability to subsequent purchasers, but these provisions do not address whether, in the mind of the later purchaser, the warranty was part of the bargain. It can hardly be said that the warranty's promises formed the basis of any bargain between Dura-Loc and these subsequent purchasers if they were not parties to a contract with Dura-Loc. See, e.g., Keegan v. Am. Honda Motor Co., 284 F.R.D. 504, 546 (C.D. Cal. 2012).
The disjunction between Dura-Loc and secondary purchasers may alternatively be described as a lack of contractual privity. California courts have recognized that the lack of contractual privity may defeat an express warranty claim. Blanco v. Baxter Healthcare Corp., 158 Cal. App. 4th 1039, 1058-59 (2008) ("'The general rule is that privity of contract is required in an action for breach of either express or implied warranty and that there is no privity between the original seller and a subsequent purchaser who is in no way a party to the original sale.'" (quoting All W. Electronics, Inc. v. M-B-W, Inc., 64 Cal. App. 4th 717, 725 (1998))). Privity is not an absolute requirement, however. The California Supreme Court long ago recognized that a plaintiff's reliance on labels or advertising materials may provide necessary evidence of the "basis for the bargain." See Tapia v. Davol, Inc., 116 F. Supp. 3d 1149, 1160-61 (2015) (citing Burr v. Sherwin Williams Co., 42 Cal. 2d 682, 696 (1954)).
Some other exceptions may also exist, for example, when the product in question is a food or drug. See, e.g., Tapia, 116 F. Supp. 3d at 1160-61. Those exceptions are not relevant here.
That said, the plaintiffs have described a common means of proving secondary purchasers' reliance. Civil Code section 1797.94 provides that warranties "subject to this chapter, shall inure to the benefit of, and shall be directly enforceable by, all subsequent purchasers and transferees of the residential structure, without limitation . . . ." Cal. Civ. Code § 1797.94. The words "this chapter," as used in that section, refer to California Civil Code sections 1797.90 to 1797.96. Section 1797.90 provides that the chapter "shall apply to all contracts and warranties for roofing materials used on a residential structure . . . and to all contracts and warranties for the installation, repair, or replacement of all or any portion of the roof of a residential structure . . . ." There remains the question of whether section 1797.94 applies to a claim under the California Commercial Code. It is a question of first impression, as no court has interpreted section 1797.94. However it may be resolved, it is susceptible to adjudication by common facts and argument. This element therefore presents a common question.
The same section allows disclaimer of transferability, but only if the provision meets certain formatting requirements that the warranties here do not.
The court also concludes these sections may apply outside the context of the Song-Beverly Consumer Warranty Act, Cal. Civ. Code §§ 1790-1795.8, first enacted in 1970. See 1970 Cal. Legis. Serv. Ch. 1333, p. 2478, § 1. The chapter in which sections 1797.90 to 1797.96 are found was added in 1993 by independent legislation, see 1993 Cal. Legis. Serv. Ch. 835 (West), and a California Court of Appeal has understood sections 1797.90 to 1797.96 to be independent of the Song-Beverly Act. See Hicks v. Superior Court, 115 Cal. App. 4th 77, 8 Cal. Rptr. 3d 703, 712 (Jan. 22, 2004), review granted and opinion superseded, 89 P.3d 732 (Cal. 2004), review dismissed, 129 P.3d 321 (Cal. 2006).
c) Breach
"An express warranty is a term of the parties' contract." Asghari v. Volkswagen Grp. of Am., Inc., 42 F. Supp. 3d 1306, 1333 (C.D. Cal. 2013). It is "a contractual promise from the seller that the goods conform to the promise." Daugherty v. American Honda Motor Co., Inc., 144 Cal. App. 4th 824, 830 (2006)). "A seller may limit its liability for defective goods by disclaiming or modifying a warranty." Id.
As noted above, the warranty in question here is common to the class, and the plaintiffs have submitted evidence that shows the Dura-Loc shingles were all manufactured using the same allegedly defective design. Whether the tiles were in fact UV-resistant therefore appears a common question of law and fact apt for resolution by class action.
But the warranty also conditions Dura-Loc's liability. The "warranty shall not be applicable . . . if the purchaser refused to permit Dura-Loc to examine the goods to ascertain the nature of the defect." Class Member Decl. No. 1 (Beck), Ex. A, ECF No. 81-18. The warranty obligates a purchaser to "notify Dura-Loc of any and all claims arising under the disclaimer of warranty within thirty (30) days after acceptance of the goods or discovery of the alleged defect." Id. The notice must be in writing, and "[f]ailure to so notify may invalidate these warranties." Id. Should the defect manifest itself later, "the Purchaser . . . shall notify Dura-Loc in writing of any manufacturing defect within thirty days following its discovery and shall submit with such notification proof of the date of purchase and installation." Id. For some class members, but not all, Dura-Loc required a $400 service fee, and some were required to register their purchase. See Wilson Decl. Ex. A. These are necessarily individualized inquiries.
The plaintiffs argue these issues pertain to class membership or damages, not predominance. Reply at 13-14. Their argument conflicts with the class definition proposed: "All individuals and entities that own homes or other structures located in the State of California on which Dura-Loc Roofing Systems Limited's Continental, Shadow line, or Wood Shake stone coated steel roof shingles were installed during the period of time beginning July 1, 1996 through May 12, 2006." Mot. at 10. If the class includes any Californian who owns a home or structure with Dura-Loc products on the roof, then compliance with the warranty is irrelevant for purposes of class membership.
Neither may the plaintiffs supplant the warranty's notice provisions with statutory notice requirements. See Reply at 15. Their argument incorrectly equates statutory notice requirements with the terms of an express, written warranty. Cf., e.g., Keegan, 838 F. Supp. 2d at 950 & n.61 (discussing statutory notice requirement and citing, inter alia, Cal. Com. Code § 2607(3)(A)). The court is aware of no authority that prohibits a manufacturer from offering an express, limited warranty that imposes a notice requirement different from that required by the default California rule.
This element therefore presents individualized questions.
d) Damages
Each plaintiff must prove he or she suffered damages as a result of Dura-Loc's breach. See Asghari, 42 F. Supp. 3d at 1333; Williams, 185 Cal. App. 3d at 142. Here, the putative class includes both those whose tiles have begun to degrade and those whose tiles may remain intact, and therefore it includes both those who have already suffered an injury and those who may suffer an injury in the future. The inclusion of class members who have not suffered injuries may demonstrate the overbreadth of the proposed definition and may be symptomatic of a claim's individualized nature. See Moore, 309 F.R.D. at 542. That said, as noted above, the Ninth Circuit has recently confirmed that a defect need not manifest itself before the class is certified, see Baker, 797 F.3d at 614; Wolin, 617 F.3d at 1173; and (2) individual questions of damages do not preclude class certification, see, e.g., Vaquero v. Ashley Furniture Indus., Inc., ___ F.3d ___, 2016 WL 3190862, at *3-4 (9th Cir. June 8, 2016).
Metals USA articulates this argument in terms of each plaintiff's standing under Article III. This argument is misplaced. "'In a class action, standing is satisfied if at least one named plaintiff meets the requirements. . . . Thus, we consider only whether at least one named plaintiff satisfies the standing requirements. . . .'" Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (en banc).
Admittedly, some confusion has arisen in recent years on this point. See Waller v. HewlettPackard Co., 295 F.R.D. 472, 476 (S.D. Cal. 2013) (citing Mazza v. Am. Honda Motor Co., 666 F.3d 581, 594 (9th Cir. 2012) ("No class may be certified that contains members lacking Article III standing." (citations, quotation marks, and alteration omitted)). Recognizing this confusion, the Waller court carefully considered the Ninth Circuit's precedents and rejected the rule of Mazza. 295 F.R.D. at 47980. Other district courts have concluded similarly. See, e.g., Moore v. Apple Inc., 309 F.R.D. 532, 54142 (N.D. Cal. 2015) (collecting cases); Rivera v. Holder, 307 F.R.D. 539, 549 n.5 (W.D. Wash. 2015) (same).
In any event, it does not seem the Mazza panel could have overruled the en banc Bates opinion. See, e.g., United States v. Camper, 66 F.3d 229, 232 (9th Cir. 1995) ("[O]nly a panel sitting en banc may overturn existing Ninth Circuit precedent.").
e) Statute of Limitations
California Commercial Code section 2725 governs the limitations period for breaches of express warranty under section 2313. Under that section, "[a]n action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it." Cal. Com. Code § 2725(1). "A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered." Id. § 2725(2).
Here, "the warranty explicitly extends to future performance"; that is, the warranty extends twenty-five years, and a purchaser could not reasonably have discovered the tiles' alleged susceptibility to damage by UV radiation before the tiles began shedding granules. The limitations period is therefore four years. But section 2725 also allows the parties to contract for a limitations period as short as one year. And that is what Dura-Loc and the putative class members did. See, e.g., Class Member Decl. No. 1 (Beck), Ex. A, ECF No. 81-18 ("Any and all claims, causes of action, suits, complaints, or petitions asserting a claim arising out of the sale of these roof products, shall be brought within a period of one (1) year from the date on which the purchaser discovers the alleged manufacturing defect, and the purchaser waives all statutory and common law periods of limitations.").
Several putative class members submitted declarations averring their discovery of defective tiles outside the applicable limitations period. See, e.g., Class Member Decl. Nos. 11, 23, 33, ECF Nos. 88-19, -21, -23. Metals USA asserts this shortcoming dooms the motion for certification, but longstanding Ninth Circuit precedent provides otherwise: "The existence of a statute of limitations issue does not compel a finding that individual issues predominate over common ones." Williams v. Sinclair, 529 F.2d 1383, 1388 (9th Cir. 1975); accord, e.g., Pace v. Quintanilla, 308 F.R.D. 644, 648 (C.D. Cal. 2015). That is, "[c]lass certification . . . is also not precluded by the need to address individual statute of limitations defenses," Grays Harbor Adventist Christian Sch. v. Carrier Corp., 242 F.R.D. 568, 573 (W.D. Wash. 2007), but individual questions of compliance with the relevant statute of limitations nonetheless weigh against certification in terms of predominance, see, e.g., Cameron v. E. M. Adams & Co., 547 F.2d 473, 478 (9th Cir. 1976) ("[O]ur examination of the record in the instant case convinces us that, even if there exists questions [sic] of individual compliance with the [applicable] statute of limitations, they are not sufficient, on balance, to negate the predominance of the common issue.").
f) Manufacturing Defect or Design Defect
Metals USA argues the defect in question is not actually attributable to the common design elements argued in the plaintiffs' motion; rather, a manufacturing defect is to blame. If this is true, it argues, then a class of all those who purchased Dura-Loc products should not be certified because the plaintiffs have offered no proof that each tile was defectively manufactured. In support of this theory, it presents evidence that the overwhelming majority of roof tiles manufactured were not defective. The plaintiffs protest Metals USA's reliance on this theory of manufacturing defect because it previously disclaimed the evidence it now relies on.
However this evidentiary conflict may be resolved, it is not a question of commonality, but of the merits of the plaintiffs' claims. The plaintiffs argue the tiles are defective because they are not UV resistant as promised. The defendant may test the nature and origin of any defect through discovery, summary judgment, and trial, and the contest may be resolved by generalized evidence. See, e.g., Wolin, 617 F.3d at 1173 ("[The defendant] argues that the evidence will demonstrate that the [products] do not suffer from a common defect, but rather, from tire wear due to individual facts such as driving habits and weather. . . . What [the defendant] argues is whether class members can win on the merits. For [the plaintiffs'] claims regarding the existence of the defect and the defendant's alleged violation of consumer protection laws, this inquiry does not overlap with the predominance test."). Similarly, the rareness of a defect's manifestation is not dispositive. See, e.g., Baker, 797 F.3d at 609 (a class could be certified despite the fact that only 0.4 percent of purchasers reported the defect).
g) Successor Liability
Finally, although neither party directly raises the argument, Metals USA's liability as successor to Dura-Loc is not yet established. That issue is a question of law and fact common to every putative class member.
h) Commonality and Predominance—In Conclusion
In sum, the plaintiffs have identified four central and common questions of law or fact: (1) whether the limited warranty governs their claims; (2) whether the tiles suffered from a common design defect; (3) whether the alleged defect meant the tiles were not "UV resistant" as promised in the written warranty; and (4) whether Metals USA is liable under an exception to the ordinary rules of successor liability. For class members who are original purchasers, the plaintiffs have also shown the warranty formed the basis of the bargain, and they have proposed a common means of proving that subsequent purchasers also relied on the express warranty. These common issues predominate.
As described above, two questions are not subject to common proof. First, class members must demonstrate their compliance with the terms of the written warranty. This question is possible to resolve by submission of affidavits or other proof of compliance, and courts in the Ninth Circuit regularly hold that a class may be certified despite the plaintiffs' reliance on affidavits to show class membership. See, e.g., Krueger v. Wyeth, Inc., No. 03-2496, 2015 WL 5839197, at *6 (S.D. Cal. Oct. 7, 2015); Thurston v. Bear Naked, Inc., No. 11-2985, 2013 WL 5664985, at *3 (S.D. Cal. July 30, 2013); Ries v. AriZona Beverages USA LLC, 287 F.R.D. 523, 535 (N.D. Cal. 2012)). In Ries v. AriZona Beverages, for example, the defendants argued certification was improper because the court would have no way to test objectively whether a person purchased the allegedly defective product, a can of tea, during the class period. 287 F.R.D. at 535. The court dismissed this argument, remarking that if it were upheld, "there would be no such thing as a consumer class action." Id. Although Ries and similar cases dealt with the question of class membership, whereas in this case the question is one of liability, the background principle is the same: some claims are susceptible to class litigation, despite administrative difficulties, when core questions of liability predominate over those difficulties.
Second, each class member's compliance with the applicable statute of limitations is necessarily an individualized inquiry. But courts in this circuit have repeatedly confirmed that classes may be certified despite questions of the class members' compliance with the applicable statute of limitations. Arthur Young & Co. v. U. S. Dist. Ct., 549 F.2d 686, 696 (9th Cir. 1977); Williams, 529 F.2d at 1388; Cameron, 547 F.2d at 478; Pace, 308 F.R.D. at 648; Cohen v. Trump, 303 F.R.D. 376, 388 (S.D. Cal. 2014).
In sum, the limited warranty, the nature of the alleged defect, and Metals USA's successor liability are the core issues of this case, all of which may be addressed by common evidence and proof. These issues predominate over the individualized issues Metals USA has identified.
E. Superiority
Rule 23(b)(3) requires a court find a class action is the "superior" method of resolution. This constraint is meant to lead the court "to assess the relative advantages of alternative procedures for handling the total controversy." Fed. R. Civ. P. 23 advisory committee's note 1966 amendment. Superiority is determined by considering, for example,
(A) the class members' interests in individually controlling the prosecution or defense of separate actions;/////
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing the class action.Id.; see also Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1190-92 (9th Cir. 2001).
Here, Metals USA does not propose any alternative means of resolution of the class members' claims, and the court is also aware of none. Although some claims may prove sizeable, considering the cost of replacing a roof, the cost of individual proof likely exceeds the value of most claims, as litigation will call on relatively complicated proof and evidence. No other forum appears more advantageous, and no related case is pending. The case is also no more procedurally complicated than other certified consumer classes, where individual issues have been set aside until common, core issues are first addressed, as described in the previous section. Moreover, the court retains discretion to adjust the class definition or even decertify the class should intractable, individualized questions later arise. See, e.g., Falcon, 457 U.S. at 160 ("Even after a certification order is entered, the judge remains free to modify it in light of subsequent developments in the litigation."). A class action is the superior means of litigating this case.
V. CONCLUSION
The motion is GRANTED. The class is defined as "All individuals and entities that own homes or other structures located in the State of California on which Dura-Loc Roofing Systems Limited's Continental, Shadowline, or Wood Shake stone coated steel roof shingles were installed during the period of time beginning July 1, 1996 through May 12, 2006."
One class claim is certified: the second claim for breaches of express warranty under California Commercial Code sections 2313 et seq.
The class excludes Metals USA and Dura-Loc and any of their corporate parents, subsidiaries and affiliates, officers and directors, any entity in which Metals USA or Dura-Loc has a controlling interest, the legal representatives, successors or assigns of any of these excluded persons or entities, and plaintiffs' counsel in this action. The class also excludes any person whose claims in this action have been previously released against either Metals USA or Dura-Loc.
Plaintiffs James Wilson and Jack White are appointed as class representatives, and Gene Stonebarger and Richard Lambert are appointed class counsel.
This order resolves ECF No. 81.
IT IS SO ORDERED. DATED: July 1, 2016.
/s/_________
UNITED STATES DISTRICT JUDGE