Shemaria v.
of Marin
Filed 1/4/12
Shemaria v. County of Marin CA1/5
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
LEIGH SHEMARIA et al.,
Plaintiffs
and Appellants,
v.
COUNTY OF MARIN,
Defendant and Respondent.
A131873
(Marin County
Super. Ct. No. CV082718)
The trial court denied a motion for
class certification filed by plaintiffs, who seek to represent a class of
persons with mobility disabilities who allegedly have been denied equal access
to the pedestrian right of way, Civic Center, parks, and libraries in Marin
County as a result of access barriers.
Because the trial court
improperly denied the motion based on the merits of plaintiffs’ claims, we
reverse.
Background
In June 2008, plaintiffs Craig
Yates, Ellen Lieber, and Russ and Vicky Bohlke filed a complaint against
defendant County of Marin (County) and several County officials in their
official capacities. In November 2010,
the trial court granted plaintiffs leave to file an
things, removed plaintiffs Craig Yates, Russ Bohlke and Vicky Bohlke, and added
plaintiff Leigh Shemaria, who is the mother and guardian ad litem of R.S., a
minor with a mobility disability.
The FAC alleges claims under the
§ 51 et seq.), Civil Code section 54 et seq., and Government Code section
11135 et seq. Plaintiffs allege County
has violated its duty to provide equal access to its programs and activities to
persons with mobility disabilities. The
types of alleged disability access barriers challenged by plaintiffs include
sidewalks that lack curb ramps, hazardous and inaccessible paths of travel to
County facilities, inaccessible restrooms, inaccessible service counters,
inadequate signage, inaccessible doors, and insufficient accessible
parking. Plaintiffs allege that these
conditions result from County’s failure “to adopt and implement effective
policies to ensure that its public facilities and programs are readily
accessible to and usable by persons with mobility disabilities.†Among other things, plaintiffs allege County
has violated its duty “to develop and implement an adequate self-evaluation and
transition plan†as required by Government Code section 11135 and its
implementing regulations.
The FAC seeks
requiring County to develop and implement plans to ensure that its facilities
are made readily accessible to persons with mobility disabilities and that all
future construction and alterations are in compliance with the applicable
disability access standards. The FAC
does not seek damages.
In August 2010, pursuant to section
382 of the Code of Civil Procedure, plaintiffs sought certification of a class
of “All persons with mobility disabilities who are allegedly being denied full
and equal access under . . . Government Code Section 11135
Section 51 et seq., and
. . . Civil Code Section 54 et
seq. due to disability access barriers to the programs, services,
activities and facilities owned, operated and/or maintained by the County of
Marin.†The plaintiffs’ evidence of
systemic access barriers included County’s own 2008 “ADA
name="_ftnref2" title="">[2]] Self Evaluation and
Transition Plan,†which identified numerous barriers to program access;
declarations from or on behalf of 13 persons with mobility disabilities; and a
declaration from an expert on disability access issues, who surveyed six County
facilities and identified significant access barriers at each.
Prior to a December 1, 2010 hearing
on plaintiff’s motion for class certification, the trial court issued a
tentative ruling granting the motion. In
its tentative ruling, the court found that “Plaintiffs have met their burden of
demonstrating the prerequisites for class certification, including the
existence of an ascertainable class and a well defined community of interest
among class members.†In addition, the
tentative order stated the court found “common questions of law or fact
predominate, particularly under plaintiffs’ amended allegations focusing on the
County’s failure to adopt and implement plans
and policies to ensure that its public facilities and programs are
readily accessible to and useable by persons with mobility disabilities.â€
Nonetheless, in February 2011,
following a continued hearing on the motion, the trial court denied the motion
for class certification. Although the
court’s order states that plaintiffs did not meet “their burden of demonstrating that common questions of law or
fact predominate,†the order does not discuss any of the common questions
arising from plaintiffs’ claims or identify any individual questions that
preclude class certification.
Instead, the order denies class certification on the basis of the merits
of plaintiffs’ claims. The order
concludes that plaintiffs’ allegations that County has failed “to adopt and
implement unspecified ‘policies’ to ensure that its public facilities and
programs are readily accessible to and usable by persons with mobility disabilitiesâ€
are “too conclusory and are not supported by substantial evidence.†The order continues, “[p]laintiffs provide no
evidence of a policy to deny programmatic access and nothing that would support
their claim that programs, when viewed in their entirety, are not
accessible.†Finally, the order
concludes there is no private right of action to enforce state regulations
requiring County to develop and implement an adequate self-evaluation and
transition plan.
This appeal followed.
Discussion
I. Basic Legal Principles Relating to Certification of Class Actions
The California Supreme Court
recently summarized the legal principles pertinent to class action
certification in Brinker Restaurant Corp.
v. Superior Court (2012) 53 Cal.4th 1004 (Brinker):
“Originally creatures of equity,
class actions have been statutorily embraced by the Legislature whenever ‘the
question [in a case] is one of a common or general interest, of many persons,
or when the parties are numerous, and it is impracticable to bring them all
before the court . . . .’
[Citations.] Drawing on the
language of Code of Civil Procedure section 382 and federal precedent, we have
articulated clear requirements for the certification of a class. The party advocating class treatment must
demonstrate the existence of an ascertainable and sufficiently numerous class,
a well-defined community of interest, and substantial benefits from
certification that render proceeding as a class superior to the
alternatives. [Citations.] ‘In turn, the “community of interest
requirement embodies three factors: (1)
predominant common questions of law or fact; (2) class representatives with
claims or defenses typical of the class; and (3) class representatives who
can adequately represent the class.†’
[Citation.]
“. . . The ‘ultimate
question’ the element of predominance presents is whether ‘the issues which may
be jointly tried, when compared with those requiring separate adjudication, are
so numerous or substantial that the maintenance of a class action would be
advantageous to the judicial process and to the litigants.’ [Citations.]
The answer hinges on ‘whether the theory of recovery advanced by the
proponents of certification is, as an analytical matter, likely to prove
amenable to class treatment.’ [Citation.] A court must examine the allegations of the
complaint and supporting declarations [citation] and consider whether the legal
and factual issues they present are such that their resolution in a single
class proceeding would be both desirable and feasible. ‘As a general rule if the defendant’s
liability can be determined by facts common to all members of the class, a
class will be certified even if the members must individually prove their
damages.’ [Citations.]
“On review of a class certification order,
an appellate court’s inquiry is narrowly circumscribed. ‘The decision to certify a class rests
squarely within the discretion of the trial court, and we afford that decision
great deference on appeal, reversing only for a manifest abuse of discretion: “Because trial courts are ideally situated to
evaluate the efficiencies and practicalities of permitting group action, they
are afforded great discretion in granting or denying certification.†[Citation.]
A certification order generally will not be disturbed unless (1) it is
unsupported by substantial evidence, (2) it rests on improper criteria, or (3)
it rests on erroneous legal assumptions.
[Citations.]’ [Citations.] Predominance is a factual question;
accordingly, the trial court’s finding that common issues predominate generally
is reviewed for substantial evidence.
[Citation.] We must ‘[p]resum[e]
in favor of the certification order . . . the existence of every fact
the trial court could reasonably deduce from the record. . . .’ [Citation.]â€
(Brinker, supra, 53 Cal.4th at pp. 1021-1022, fn. omitted.)
II. The Trial Court Improperly Denied the Motion Based on the Merits
On appeal, plaintiffs contend the
trial court’s order denying their motion for class certification should be
reversed because the court improperly denied the motion based on its conclusion
that plaintiffs’ claims would fail on the merits. We agree.
A. The
Limits on Consideration of the Merits at the Class Certification Stage
In Brinker, the Supreme Court thoroughly explained the limits on the
consideration of the merits at the class action certification stage: “While . . . trial courts must
resolve any legal or factual issues that are necessary to a determination whether class certification is
proper,†the trial court need not “as a threshold matter always resolve any
party disputes over the elements of a claim.
In many instances, whether class certification is appropriate or
inappropriate may be determined irrespective of which party is correct.†(Brinker,
supra, 53 Cal.4th at p. 1023.) “ ‘The certification question is
“essentially a procedural one that does not ask whether an action is legally or
factually meritorious.†’ [Citations.] A class certification motion is not a license
for a free-floating inquiry into the validity of the complaint’s allegations;
rather, resolution of disputes over the merits of a case generally must be
postponed until after class certification has been decided [citation], with the
court assuming for purposes of the certification motion that any claims have
merit [citation].†(Ibid.)
Brinker
did recognize that, in some cases, “ ‘issues affecting the merits of a
case may be enmeshed with class action requirements
. . . .’
[Citations.]†(
“In particular, whether common or individual questions predominate will
often depend upon resolution of issues closely tied to the merits. [Citations.]
To assess predominance, a court ‘must examine the issues framed by the
pleadings and the law applicable to the causes of action alleged.’ [Citation.]
It must determine whether the elements necessary to establish liability
are susceptible of common proof or, if not, whether there are ways to manage
effectively proof of any elements that may require individualized evidence. [Citation.]
In turn, whether an element may be established collectively or only
individually, plaintiff by plaintiff, can turn on the precise nature of the
element and require resolution of disputed legal or factual issues affecting
the merits.†(Id. at p. 1024.)
Nevertheless, “[s]uch inquiries are
closely circumscribed. . . .
[A]ny ‘peek’ a court takes into the merits at the certification stage must ‘be
limited to those aspects of the merits that affect the decisions essential’ to
class certification. [Citation.]†(Brinker,
supra, 53 Cal.4th at p. 1024.) In sum, “[p]resented with a class
certification motion, a trial court must examine the plaintiff’s theory of
recovery, assess the nature of the legal and factual disputes likely to be
presented, and decide whether individual or common issues predominate. To the extent the propriety of certification
depends upon disputed threshold legal or factual questions, a court may, and
indeed must, resolve them. Out of
respect for the problems arising from one-way intervention, however, a court
generally should eschew resolution of such issues unless necessary. [Citations.]â€
(Id. at p. 1025.)
B. There
Was No Justification for Reaching the Merits Issues Addressed by the Trial
Court
In the present case, the trial
court’s order denying the motion for class certification does not assert that
resolution of any merits issues was necessary to an analysis of the class
certification criteria. The order states
that plaintiffs failed to meet their burden of demonstrating that common
questions of law or fact predominate, but none of the analysis in the order is
tied to that finding or other criteria relevant to the decision whether to
certify a class. Neither does the order
identify any individual questions that preclude class certification. Instead, all of the analysis is on the
merits, without any articulated nexus to the class certification criteria. Among other things, the order concludes
plaintiffs did not present sufficient evidence that County has a policy of
denying access, plaintiffs did not present sufficient evidence that County’s
programs are inaccessible, and there is no private right of action to enforce
the transition plan regulation adopted pursuant to section 11135 of the
Government Code. These are, among
others, common legal and factual issues on the merits, not considerations
demonstrating that individual rather than common issues predominate.
The trial court’s order does not
explain why it was necessary to reach those merits issues, and County proffers
no such explanation on appeal. For
example, County does not explain how resolution of any of those issues helped
the trial court “determine whether the elements necessary to establish
liability are susceptible of common proof†or whether “there are ways to manage
effectively proof of any elements that may require individualized
evidence.†(Brinker, supra, 53
Cal.4th at p. 1024.) The trial court
should have focused on “whether the evidence plaintiffs will offer is
‘sufficiently generalized in nature,’ †instead of “prejudg[ing] the
merits†by inquiring whether plaintiffs had shown they would be able to amass
an adequate “quantum of proof†to establish their claims. (Capitol
People First v. State Dept. of Developmental Services (2007) 155 Cal.App.4th
676, 696 (Capitol People First).)
As the California Supreme Court
pointed out in Linder v. Thrifty Oil Co.
(2000) 23 Cal.4th 429 (Linder), “When
the substantive theories and claims of a proposed class suit are alleged to be
without legal or factual merit, the interests of fairness and efficiency are
furthered when the contention is resolved in the context of a formal pleading
(demurrer) or motion (judgment on the pleadings, summary judgment, or summary
adjudication) that affords proper notice and employs clear standards. Were we to condone merit-based challenges as
part and parcel of the certification process, similar procedural protections
would be necessary to ensure that an otherwise certifiable class is not
unfairly denied the opportunity to proceed on legitimate claims. Substantial discovery also may be required if
plaintiffs are expected to make meaningful presentations on the merits. All of that is likely to render the
certification process more protracted and cumbersome, even if . . .
trial courts were prohibited from resolving factual disputes. Such complications hardly seem necessary when
procedures already exist for early merit challenges.†(Id.
at pp. 440-441, fn. omitted.)
Furthermore, “[i]t is far better from a fairness perspective to
determine class certification independent of threshold questions disposing of
the merits, and thus permit defendants who prevail on those merits, equally
with those who lose on the merits, to obtain the preclusive benefits of such
victories against an entire class and not just a named plaintiff. [Citation.]â€
(Brinker, supra, 53 Cal.4th at p. 1034.)
Accordingly, even in cases where plaintiffs do seek individual damages
(which they do not here), a class should generally be certified “ ‘if the
defendant’s liability can be determined by facts common to all members of the
class.’ †(See id. at p. 1022.) Nothing in
the trial court’s order reflects any conclusion that plaintiffs’ causes of
action are not based on common law and facts.
County argues the trial court
concluded that plaintiffs had failed to meet their burden of showing “with
substantial evidence, that common questions of law or fact predominate over
questions affecting individual members.
[Citation.]†(
individual questions at issue in the case, the order cannot be upheld on that
ground. By contrast, in
persons with developmental disabilities seeking to enforce their right to live
in the least restrictive environment commensurate with their needs (
reasoned that the plaintiffs claims would require the trier of fact to focus on
“how the policies and practices affect each class member through the
development, content and implementation of individual†program plans (
We conclude the trial court’s order
denying plaintiff’s motion for class certification rests on improper criteria
and must be reversed. (
certification that rests in part on an erroneous legal assumption is error;
without regard to whether such a certification might on other grounds be
proper, it cannot stand. [Citation.]â€];
(2008) 162 Cal.App.4th 1193, 1204.)
III. It is Appropriate to Remand for Reconsideration
Although we conclude the trial
court’s order must be reversed, that does not mean “that class treatment
necessarily is proper. Although the
trial court may conclude that certification is appropriate after eliminating
the improper criteria and erroneous assumptions from consideration, upon a
fresh look it may discern valid reasons for denying [plaintiffs’] certification
motion.†(Linder, supra,
matter to the trial court, with directions that it conduct further proceedings
consistent with this opinion. (
In particular, County contends on
appeal that common issues do not predominate because the determination of
whether a facility is inaccessible depends on an individualized assessment of
the characteristics of the disabled individual desiring access to the
facility’s programs. To wit, County argues
that “the statutory scheme under California and federal law for ensuring that a
qualified individual with a disability has ‘meaningful access’ to a County
program requires an individualized assessment to determine whether [an]
individual, with or without reasonable modifications, ‘meets the essential
eligibility requirements for the receipt of services or the participation in
programs or activities.’ †(Fn.
omitted.) County also contends class
certification is inappropriate because different facilities may be subject to
different standards based upon their dates of construction or alteration. On the other hand, plaintiffs contend that
“public entities have an affirmative proactive duty to identify and remove disability
access barriers that limit or deny access to public programs and
activities.†They argue that variations
in the types of mobility disabilities experienced by the individual class
members do not defeat commonality; that, even if different standards apply to
different facilities, whether any given facility is in compliance is an issue
common to the class; and that plaintiffs’ “claims fall squarely within the type
of systematic disability civil rights challenges to policies and practices of
general application that are routinely certified as class actions.†(See Gray
v. Golden Gate Nat. Recreational Area (N.D.Cal. 2011) 279 F.R.D. 501,
508-520 [discussing class certification criteria and relevant case authority in
action seeking injunctive relief regarding barriers to access by disabled persons
at Golden Gate National Recreation Area park sites]; see also
F.R.D. 536, 544-546 [access barriers in public housing]; Californians for Disability Rights, Inc. v. California Dept. of
Transportation (N.D.Cal. 2008) 249 F.R.D. 334, 344-346 [access barriers in
California Department of Transportation facilities]; Cherry v. City College of San Francisco (N.D.Cal. 2005) 2005 WL
6769124 [pp. *5-*6] [access barriers at college campuses]; Lopez v. San Francisco Unified School Dist. (N.D.Cal. 2003) 2003 WL
26114018 [pp. *2-*4] [access barriers in school district facilities].)
The trial court’s order denying
plaintiffs’ motion for class certification does not address County’s contention
that proof of plaintiffs’ claims will require consideration of the
circumstances of individual class members, and it does not conclude that the
possibility different standards may apply to different facilities means that
accessibility to programs at those facilities is not a common question. Therefore, we cannot rely upon those bases to
affirm the order. (Bufil, supra, 162
Cal.App.4th at p. 1205 [“in our review of an order denying class certification,
we consider only the reasons cited by the trial court for the denial, and
ignore other reasons that might support denialâ€]; see also id. at p. 1206 [“the trial court did not cite or discuss any of
this evidence in its ruling, and we are constrained by the reasons set forth by
the court for denying certificationâ€]; accord, Jaimez v. Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286,
1297-1298.) We express no opinion on
those questions, which are appropriate merits issues to consider on a motion
for class certification, because they relate to “whether the elements necessary
to establish liability are susceptible of common proof.†(Brinker,
supra, 53 Cal.4th at p. 1024.) After the trial court addresses those issues,
it should exercise its discretion on the certification question in light of its
conclusions on those issues and any other appropriate considerations.
Disposition
The trial court’s order denying
plaintiffs’ motion for class certification is reversed. The matter is remanded to the trial court for
further proceedings consistent with this opinion. Costs
on appeal are awarded to plaintiffs.
SIMONS,
Acting P.J.
We concur.
NEEDHAM, J.
BRUINIERS, J.
passed away; Ms. Shemaria continues as a plaintiff and proposed class
representative.
Americans with Disability Act of 1990 (42 U.S.C. § 12101 et seq.).
