EI Contracting and Engineering, Inc., on Behalf of Itself and All Others Similarly Situated, Plaintiff-Appellant,
Hanson Aggregates Pacific Southwest, Inc., a Delaware Corporation; Hanson Aggregates, Inc.; Lehigh Hanson, Co., Defendants-Appellees.
and Submitted November 15, 2018
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
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.
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.
Certification / Standing
panel affirmed the district court's order decertifying a
class of persons where the class representative lacked
standing as to its individual claim.
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.
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.
GLEASON, DISTRICT JUDGE
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
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 ...