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EI Contracting and Engineering, Inc. v. Hanson Aggregates Pacific Southwest, Inc.

United States Court of Appeals, Ninth Circuit

June 5, 2019

EI Contracting and Engineering, Inc., on Behalf of Itself and All Others Similarly Situated, Plaintiff-Appellant,
v.
Hanson Aggregates Pacific Southwest, Inc., a Delaware Corporation; Hanson Aggregates, Inc.; Lehigh Hanson, Co., Defendants-Appellees.

          Argued and Submitted November 15, 2018

          Appeal from the United States District Court for the Southern District of California No. 3:12-cv-01685-BAS-JLB Cynthia A. Bashant, District Judge, Presiding

          Janice R. Mazur (argued), Mazur & Mazur, El Cajon, California; Douglas J. Campion, Law Offices of Douglas J. Campion APC, San Diego, California; Richard E. Grey, Grey Law Group APC, El Cajon, California; for Plaintiff-Appellant.

          Fred R. Puglisi (argued), Jay T. Ramsey, and Valerie E. Alter, Sheppard Mullin Richter & Hampton LLP, Los Angeles, California; for Defendants-Appellees.

          Before: Richard A. Paez and Richard R. Clifton, Circuit Judges, and Sharon L. Gleason, [*] District Judge.

         SUMMARY [**]

         Class Certification / Standing

         The panel affirmed the district court's order decertifying a class of persons where the class representative lacked standing as to its individual claim.

         The district court decertified a plaintiff class of cellular phone users whose calls were recorded purportedly without their consent by defendant on the ground that the class did not satisfy Fed.R.Civ.P. 23(b)(3)'s predominance requirement. Subsequently, the district court held that the lead plaintiff lacked standing to bring its California Invasion of Privacy Act claim against defendant.

         The panel held that this case presented a threshold standing issue. The panel held that a class must be decertified when the class representatives are found to lack standing as to their individual claims. Furthermore, by failing to challenge the district court's standing determination, plaintiff had waived its right to challenge that determination. The panel further held that neither mootness exception raised by plaintiff stood for the proposition that a class could be certified if the class representative lacked standing as to its individual claim.

          OPINION

          GLEASON, DISTRICT JUDGE

         I. BACKGROUND

         NEI Contracting and Engineering, Inc. ("NEI") was a longtime customer of concrete supplier Hanson Aggregates, Inc. ("Hanson"). Like Hanson's other customers, NEI placed orders for Hanson's products by calling into a dedicated telephone order line. The order line connected callers to a call directory system that allowed customers to route their call. Two of the potential routes were Hanson's "Ready Mix Dispatch" line and its "Aggregate Dispatch" line. Hanson recorded all customer calls that were directed to these two dispatch lines.

         On July 15, 2009, Hanson began using an "Oaisys Talkument" phone system. When this system was in place, callers to the two dispatch lines heard a pre-recorded verbal admonition stating that calls "may be monitored for quality assurance." It did ...


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