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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT


DIVISION THREE

RICHARD M. KERSHENBAUM, PLAINTIFF AND APPELLANT,


v.
BUY.COM, INC., DEFENDANT AND RESPONDENT.

Appeal from an order of the Superior Court of Orange County, Gail Andrea Andler, Judge.
Reversed with directions. (Super. Ct. No. 07CC01336).

September 30, 2010


The opinion of the court was delivered by: Fybel, J.

OPINION

Richard M. Kershenbaum did not receive an advertised rebate on a product he purchased through
Buy.com, Inc.'s Web site. Buy.com contended the rebate was offered by the product manufacturer, and
it was therefore not responsible for compensating Kershenbaum. Kershenbaum sued Buy.com, and
sought class certification of the lawsuit. The trial court denied the motion, and Kershenbaum appeals.
We reverse.

The trial court erred in denying the motion for class certification. The different definitions of the
proposed class contained in the memorandum of points and authorities and the proposed order did not
warrant denial of the motion for lack of ascertainability. Any confusion caused by the different
definitions could and should have been remedied by the trial court, either by correcting the proposed
order, or by independently drafting a new order.

We further conclude the trial court erred in denying the motion on the ground that common questions
of law did not predominate. The California choice-of-law provision in Buy.com's terms of use agreement
applies to the claims asserted by the class. Even if the choice-of-law provision did not apply, class
certification was still appropriate because significant contacts with California have been shown to exist,
and Buy.com cannot demonstrate that any foreign law, rather than California law, should apply to the
class claims.

We also conclude the trial court erred in determining the claims asserted by the class were vague.

Finally, Kershenbaum had standing to assert a claim for misleading advertising; the trial court erred in
determining otherwise.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On February 5, 2007, Kershenbaum purchased a Connect 3D memory card from Buy.com for $30, with a
$30 mail-in rebate. Kershenbaum sent in the appropriate rebate forms, and was approved to receive the
$30 rebate. Connect 3D, however, failed to pay the rebate. In July 2007, Buy.com offered those
customers who had not received their rebates a $10 gift certificate.

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Kershenbaum filed a class action lawsuit against Buy.com. In his second amended complaint (which is
the operative complaint), Kershenbaum alleged causes of action against Buy.com for violations of the
unfair competition law (Bus. & Prof. Code, § 17200 et seq.) (UCL) and the Consumers Legal Remedies Act
(Civ. Code, § 1750 et seq.) (CLRA), and for negligent misrepresentation.

On December 10, 2008, Kershenbaum filed a renewed motion for class certification. (Kershenbaum's
original motion for class certification was denied without prejudice for failure to meet his burden of
showing an ascertainable class.) The trial court denied Kershenbaum's renewed motion for class
certification. The court's order reads, in relevant part, as follows: "Plaintiff's Motion for Renewed Class
Certification, assuming it is meant to be a new class certification motion, is denied based on the
following grounds: [¶] a. Plaintiff presented the Court with three different definitions of the class. There
are two differing definitions in the Points and Authorities . . . and there is a third definition in the
Proposed Order. Therefore, Plaintiff has not proven that there is an ascertainable class. [¶] b.
Additionally, it is vague as to what claims Plaintiff asserts against Buy.com: the failure of Buy.com to
perform 'due diligence' as to Connect 3D's financial condition, or misleading advertising. [¶] c. If Plaintiff
is asserting 'misleading advertising,' i[t] appears the proposed class representative lacks standing, in that
he testified he did not rely on any of Buy.com's representations or omissions before purchasing the
Connect 3D rebated products. [¶] d. Plaintiff has not established that common issues of law
predominate." Kershenbaum timely appealed from the order denying the motion for class certification.

DISCUSSION

I. STANDARD OF REVIEW AND STANDARDS FOR CLASS CERTIFICATION

"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. . . . [I]n the absence
of other error, a trial court ruling supported by substantial evidence generally will not be disturbed
'unless (1) improper criteria were used [citation]; or (2) erroneous legal assumptions were made
[citation]' [citation]. Under this standard, an order based upon improper criteria or incorrect
assumptions calls for reversal '"even though there may be substantial evidence to support the court's
order."' [Citations.] Accordingly, we must examine the trial court's reasons for denying class
certification. 'Any valid pertinent reason stated will be sufficient to uphold the order.' [Citation.]" (Linder
v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435-436.)

"'Code of Civil Procedure section 382 authorizes class suits in California when "'the question 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.' To obtain certification, a party must establish the existence of both
an ascertainable class and a well-defined community of interest among the class members. [Citations.]
The community of interest requirement involves 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.]"' [Citation.]" (Kaldenbach v. Mutual
of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 843.) As the moving party, Kershenbaum bore the
burden of proving all the elements for class certification. (Richmond v. Dart Industries, Inc. (1981) 29
Cal.3d 462, 470.)

II. IS THE CLASS ASCERTAINABLE?

The trial court found the class was not ascertainable because Kershenbaum had offered multiple

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definitions of the class in his motion papers: "Plaintiff presented the Court with three different
definitions of the class. There are two differing definitions in the Points and Authorities . . . and there is a
third definition in the Proposed Order. Therefore, Plaintiff has not proven that there is an ascertainable
class." The memorandum of points and authorities in support of the renewed motion for class
certification defined the proposed class as follows: "All persons in the United States who purchased a
Connect 3D product from Defendant Buy.com, Inc. ('Buy.com') that included a rebate offer and whose
rebate submissions were approved for payment. [¶] Excluded from the Class are the Court, Defendant,
its affiliates, employees, officers and directors, and anyone who was paid his or her rebate by Buy.com."
(Fn. omitted.)*fn1 The proposed order, however, defined the proposed class as follows: "All persons in
the United States who purchased a Connect 3D product (including Hannspree products) from Defendant
Buy.com, Inc. ('Buy.com') that included a rebate offer and whose rebate submissions were approved for
payment. Excluded from the Class are the Court, Defendant, its affiliates, employees, officers and
directors, and anyone who was paid his or her rebate by Buy.com." (Italics added.) Nowhere in the
renewed motion for class certification are Hannspree products mentioned.

Kershenbaum's appellate briefs simply ignore this issue on which the trial court based its order denying
class certification. Kershenbaum merely reiterates that Buy.com has all the necessary information about
the individuals who purchased "Connect3D rebate eligible products." The problem is that Kershenbaum
never states whether the purchasers of Hannspree products are within this group.*fn2 "'Ascertainability
is required in order to give notice to putative class members as to whom the judgment in the action will
be res judicata.' [Citations.] The representative plaintiff need not identify the individual members of the
class at the class certification stage in order for the class members to be bound by the judgment.
[Citation.] As long as the potential class members may be identified without unreasonable expense or
time and given notice of the litigation, and the proposed class definition offers an objective means of
identifying those persons who will be bound by the results of the litigation, the ascertainability
requirement is met." (Medrazo v. Honda of North Hollywood (2008) 166 Cal.App.4th 89, 101.)

Kershenbaum argues that even if the class was not adequately defined, the trial court had the discretion
to redefine the class, quoting from Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal.App.4th 908,
916: "Furthermore, if necessary to preserve the case as a class action, the court itself can and should
redefine the class where the evidence before it shows such a redefined class would be ascertainable."
Although Kershenbaum does not state it explicitly, presumably he means to argue that the trial court
should have removed the reference to Hannspree products from the class definition in the proposed
order.

We agree with Kershenbaum that the class was defined in the memorandum of points and authorities
and the court's reason for denying the motion was legally erroneous. The trial court did not find
anything in that definition that made the class unascertainable. If the definition of the class contained in
the proposed order did not match that in the memorandum of points and authorities, the trial court
could have deleted the Hannspree reference from the proposed order, directed the prevailing party to
draft an order consistent with the court's ruling, or drafted its own order. In failing to do so, and instead
denying the renewed motion for class certification for an improper reason, the court erred. We reverse
the order; the trial court is directed to issue a new order finding ascertainability of a class defined in its
discretion. The trial court has the discretion to order additional briefing and a hearing in order to do so.

Buy.com also notes that the proposed class definition did not account for the CLRA's limitation to
consumers. This argument was not raised in the trial court. Even if we were to consider it, it does not
affect our opinion.

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Kershenbaum does not dispute that the CLRA claim may only provide relief to those proposed class
members who bought products for consumer use, not to those who bought products for commercial
use. (See Civ. Code, § 1761, subd. (d) [as used in the CLRA, a consumer is "an individual who seeks or
acquires, by purchase or lease, any goods or services for personal, family, or household purposes"]; id., §
1780, subd. (a) ["Any consumer who suffers any damage as a result of the use or employment by any
person of a method, act, or practice declared to be unlawful by Section 1770 may bring an action against
that person"].) Instead, Kershenbaum asserts, without any factual support, that the products purchased
by the proposed class in this case--memory cards and televisions--"are no more likely to be purchased
for business purposes than cars or other vehicles," which were the products purchased in other cases
where the courts granted class certification.

In Lazar v. Hertz Corp. (1983) 143 Cal.App.3d 128, 136, the plaintiff filed a class action lawsuit against
Hertz Corporation for violation of the CLRA, among other claims, for charging outrageous sums to refuel
rental cars which were returned unfilled. The plaintiff conceded he did not rent a car from Hertz as a
consumer, and was therefore not a member of the proposed class. (Lazar v. Hertz Corp., supra, at p.
142.) The appellate court reversed the trial court's denial of a motion for class certification, concluding
in part that although the plaintiff could not represent the class, the case could proceed as a class action
with a new consumer plaintiff being permitted to intervene. (Ibid.) Under the rule of Lazar v. Hertz Corp.
(which was not cited or discussed by Buy.com), a class may be certified for a case including a CLRA claim
even though some of the members of the class are not consumers.*fn3

III. DO COMMON QUESTIONS OF LAW PREDOMINATE?

The trial court also denied the motion for class certification on the ground that Kershenbaum had failed
to establish common issues of law predominate. Buy.com contends that because the class members are
residents of all 50 states, and California law regarding consumer protection claims differs materially
from the laws of other states, differences in the law to be applied to the UCL and CLRA claims will
"swamp" the common issues, making class certification inappropriate.

To determine whether the trial court abused its discretion in finding common issues of law did not
predominate, we consider whether a choice-of-law provision applies, and if not, how to determine what
law applies when violations of California consumer protection laws are alleged in a case involving a
potential nationwide class.*fn4

The parties dispute whether an enforceable choice-of-law agreement exists in this case. Buy.com's Web
site contains a choice-of-law provision in its terms of use agreement: "This Terms of Use shall be
governed by the laws of the State of California without regard to or application of any conflict of laws
provisions." Buy.com argues Kershenbaum's claims do not arise out of the terms of use agreement, and
therefore the contractual choice-of-law provision does not apply. The terms of use agreement provides:
"READ CAREFULLY. This Terms of Use Agreement ('Terms of Use') applies to use of the Buy.com website
located at http://www.buy.com (the 'Site'). The Site is the property of Buy.com Inc. (together with its
affiliated companies, including without limitation, BuyMusic.com Inc. and BuyServices Inc., 'Buy.com').
Before you make any purchases, you must first establish a customer account ('My Account'). BY
CLICKING 'I HAVE READ, UNDERSTAND AND AGREE TO THE TERMS OF USE,' YOU AGREE TO THESE
TERMS OF USE. IF YOU DO NOT AGREE, DO NOT CLICK ON THE BUTTON AND DO NOT USE THE SITE."
(Boldface omitted.)*fn5

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Buy.com concedes in its brief on appeal that the choice-of-law provision in the terms of use agreement
would apply to "all causes of action arising from or related to that agreement, regardless of how they
are characterized, including tortious breaches of duties emanating from the agreement or the legal
relationships it creates." (Nedlloyd Lines B.V. v. Superior Court (1992) 3 Cal.4th 459, 470 (Nedlloyd
Lines).) At root, the allegations in Kershenbaum's second amended complaint are that Buy.com made
negligent misrepresentations on its Web site inducing the potential class members to make purchases of
Connect 3D products through the Buy.com Web site. Kershenbaum's claims arise from or are related to
the agreement governing the use of the Buy.com Web site. Therefore, we conclude the choice-of-law
provision covers Kershenbaum's claims.*fn6

Regarding contractual choice-of-law provisions, the Restatement Second of Conflict of Laws, section
187, subdivision (2), provides: "The law of the state chosen by the parties to govern their contractual
rights and duties will be applied, even if the particular issue is one which the parties could not have
resolved by an explicit provision in their agreement directed to that issue, unless either [¶] (a) the
chosen state has no substantial relationship to the parties or the transaction and there is no other
reasonable basis for the parties' choice, or [¶] (b) application of the law of the chosen state would be
contrary to a fundamental policy of a state which has a materially greater interest than the chosen state
in the determination of the particular issue and which, under the rule of § 188, would be the state of the
applicable law in the absence of an effective choice of law by the parties." Application of Restatement
Second of Conflict of Laws, section 187, subdivision (2), on this issue has been approved by the
California Supreme Court. (See Nedlloyd Lines, supra, 3 Cal.4th at pp. 464-465.)

The California choice-of-law provision in Buy.com's terms of use agreement applies in this case.
California has a substantial relationship to the parties and the transaction; Buy.com is based in
California, and all the transactions in question were processed by Buy.com. Additionally, no other state
has a materially greater interest than California in the resolution of this case.

Buy.com's terms of use agreement constitutes a contract of adhesion. Choice-of-law provisions included
in adhesion contracts are enforceable "where they are otherwise appropriate." (Washington Mutual
Bank v. Superior Court (2001) 24 Cal.4th 906, 917 (Washington Mutual).) The analysis of Nedlloyd Lines
and Restatement Second of Conflict of Laws, section 187, subdivision (2), permits the weaker party to an
adhesion contract to argue that substantial injustice would result from enforcing the choice-of-law
provision, or that the contract was imposed through the unfair use of superior bargaining power.
(Washington Mutual, supra, at p. 918.) Here, however, it is not the party with the weaker bargaining
power that is arguing against the use of the choice-of-law provision contained in the parties' contract--it
is the party that drafted the choice-of-law provision and made it a part of its Web site's terms of use
agreement, without the acceptance of which no other party could purchase goods through the Web
site.

Both Kershenbaum and Buy.com rely on the California Supreme Court's analysis in Washington Mutual.
In that case, a borrower sued her lender for, among other things, violating the UCL by purchasing
expensive replacement insurance when the borrowers defaulted on their loan obligation of maintaining
hazard insurance. (Washington Mutual, supra, 24 Cal.4th at p. 912.) The loan documents contained a
choice-of-law provision making federal law and the law of the state in which the secured property was
located applicable. (Ibid.) The trial court certified a nationwide class without deciding what law would
apply to the class members' claims. (Id. at p. 913.) The Supreme Court reversed the certification order,
due to its incomplete and erroneous analysis of the factors relevant to certification: "[W]e hold that a
class action proponent must credibly demonstrate, through a thorough analysis of the applicable state

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laws, that state law variations will not swamp common issues and defeat predominance. Additionally,
the proponent's presentation must be sufficient to permit the trial court, at the time of certification, to
make a detailed assessment of how any state law differences could be managed fairly and efficiently at
trial, for example, through the creation of a manageable number of subclasses. Trial courts, in assessing
the propriety of nationwide class certification, must consider these factors, as well as all the other
factors relevant to certification, including the potential recovery of each individual claimant and
whether the proposed class suit is the only effective way to redress the alleged wrongdoing or to
prevent unjust advantage to the defendant. [Citations.] Adherence to these procedures should ensure
that nationwide class actions are certified only where they will result in substantial benefits both to the
litigants and the courts. [Citation.]" (Id. at p. 926, fn. omitted.)

The analysis of Washington Mutual applies when there is an enforceable choice-of-law agreement
selecting the law of one or more other states, and the challenging party asks the California courts to
apply the foreign law. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 244 (Wershba).)
Washington Mutual is not applicable in the present case because the choice-of-law provision selected
California law. Indeed, the questions answered by the Supreme Court in Washington Mutual, supra, 24
Cal.4th at page 914, are as follows: "First, what is the appropriate analysis for selecting applicable law in
a class action where putative class members have contractually agreed to application of another state's
law? Second, what analysis must be undertaken in the event litigation of the class action will necessitate
application of the laws of multiple states?" For the reasons we have explained, neither of these
questions is implicated here because the parties chose California law as the applicable law.

Even if Buy.com were correct, and the California choice-of-law provision did not apply to Kershenbaum's
claims, the relevant analysis would compel the same conclusion. Where there is no enforceable choice-
of-law agreement, "[s]o long as the requisite significant contacts with California are shown to exist,
sufficient to meet constitutional standards, the burden is on the parties challenging the nationwide
certification to demonstrate that 'foreign law, rather than California law, should apply to class claims.'
[Citation.]" (Wershba, supra, 91 Cal.App.4th at p. 244.)

"'Analysis of a choice of law question proceeds in three steps: (1) determination of whether the
potentially concerned states have different laws, (2) consideration of whether each of the states has an
interest in having its law applied to the case, and (3) if the laws are different and each has an interest in
having its law applied (a "true" conflict), selection of which state's law to apply by determining which
state's interests would be more impaired if its policy were subordinated to the policy of the other state.
[Citations.]' [Citation.]" (Clothesrigger, Inc. v. GTE Corp. (1987) 191 Cal.App.3d 605, 614.)

In Wershba, supra, 91 Cal.App.4th at page 230, a case where there was no choice-of-law provision, a
California-based computer manufacturer changed its policy of providing free technical support, and
immediately began requiring its customers to pay for technical support. Several class action lawsuits
raising claims for breach of contract and violations of the UCL and the CLRA were filed. (Wershba, supra,
at p. 231.) A nationwide class was certified at the same time a proposed settlement was preliminarily
approved by the trial court. (Id. at p. 232.) Objections to the proposed settlement were filed, in part
objecting because the state law consumer claims should not be pursued by a nationwide class. (Id. at pp.
233-234.) The trial court rejected the objections, certified the nationwide class, and approved the
settlement. (Id. at p. 234.)

On appeal, the appellate court concluded it was appropriate to certify a nationwide class to pursue the
claims for violations of the UCL and the CLRA: "[A] California court may properly apply the same

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California statutes at issue here to non-California members of a nationwide class where the defendant is
a California corporation and some or all of the challenged conduct emanates from California.
[Citations.]" (Wershba, supra, 91 Cal.App.4th at p. 243.) "Even though there may be differences in
consumer protection laws from state to state, this is not necessarily fatal to a finding that there is a
predominance of common issues among a nationwide class. As the Ninth Circuit Court of Appeals has
observed, state consumer protection laws are relatively homogeneous: 'the idiosyncratic differences
between state consumer protection laws are not sufficiently substantive to predominate over the
shared claims' and do not preclude certification of a nationwide settlement class." (Id. at p. 244.)
Although the trial court in the present case was not considering a settlement class, we do not find that
dispositive, especially because "California's consumer protection laws are among the strongest in the
country." (Id. at p. 242.)

Here, Buy.com is headquartered in California. The allegedly misleading rebate information on Buy.com's
Web site originated from California. The due diligence Buy.com allegedly failed to perform would have
been performed in California. This state has a clear connection to the claims asserted by Kershenbaum.
Although there are differences between the consumer protection laws of California and those of other
states, those differences generally favor the consumers, and Buy.com cannot explain why another state
would object to having California provide greater protection to its citizens against alleged wrongdoing
by a California defendant.

Under Wershba and Clothesrigger, Inc. v. GTE Corp., even if the California choice-of-law provision in
Buy.com's terms of use agreement did not apply, the trial court erred in finding common issues did not
predominate.

IV. ARE THE CLAIMS VAGUE?

The trial court also denied Kershenbaum's motion for class certification because "it is vague as to what
claims Plaintiff asserts against Buy.com: the failure of Buy.com to perform 'due diligence' as to Connect
3D's financial condition, or misleading advertising."

Kershenbaum's argument on appeal regarding this issue is as follows: "The Trial Court stated that it was
unclear whether Appellant sought a class to be certified based on its claim involving 'due diligence' or on
'misleading advertising.' But that is a false dichotomy. Appellant's claim is that Buy.com performed
inadequate due diligence, and as a result, it advertise[d] that rebates were available when they were not
- and that advertising was, in fact, misleading (indeed, it was utterly false, since no one in the putative
class was paid their rebates)."

The reply brief, for the most part, repeats the opening brief's argument: "Buy.com contends that Mr.
Kershenbaum is vague as to what claims he asserts against Buy.com: due diligence or misleading
advertising. . . . But that is a false dichotomy. Buy.com advertised that rebates were available when they
were not - and that advertising was, in fact, misleading (indeed, it was utterly false, since no one in the
putative class was paid his or her rebate). It was negligent for Buy.com to have made such
misrepresentations, because, Mr. Kershenbaum alleges, it virtually took Connect 3D's word for it that
Connect 3D would be good for the rebates. The misrepresentations at issue are the ones every single
person in the putative class must have seen and relied upon: that a rebate was available with the
Connect 3D products." (Original italics.)

Although Kershenbaum's pleadings could have been clearer, his allegations were not so vague as to

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warrant denial of his motion for class certification. Accordingly, we conclude the trial court erred in
denying the class certification motion on the ground that it was vague whether Kershenbaum was
arguing that Buy.com failed to conduct due diligence on Connect 3D, or that Buy.com's Web site stating
Connect 3D's products were free after the rebate was misleading advertising. In essence, Kershenbaum
alleged the advertising of a free rebate was misleading.

V. DOES THE PROPOSED CLASS REPRESENTATIVE HAVE STANDING FOR THE MISLEADING ADVERTISING
CLAIM?

The trial court also found that Kershenbaum did not have standing to assert a claim for misleading
advertising. "If Plaintiff is asserting 'misleading advertising,' i[t] appears the proposed class
representative lacks standing, in that he testified he did not rely on any of Buy.com's representations or
omissions before purchasing the Connect 3D rebated products." At his deposition, Kershenbaum
testified that he believed an online retailer should always be responsible for paying the advertised
rebate on products it sells through its Web site, even if the Web site states the rebate will be provided
by the manufacturer, not the online retailer. Buy.com therefore argues Kershenbaum did not rely on any
misrepresentations or omissions because "[t]here was thus nothing Buy.com could have done to
prevent Kershenbaum from thinking that Buy.com was responsible for the Connect 3D rebates, not even
if Buy.com had conducted an independent audit or provided an express disclaimer." (Boldface omitted.)

The misleading advertising Kershenbaum's complaint alleged is the statement that the Connect 3D
products purchased were free after the rebate, when in fact a rebate was not available. Kershenbaum
has standing to assert such a claim, and the trial court erred in determining otherwise. We take no
position as to the merits of Kershenbaum's claim.

DISPOSITION

The order is reversed. The trial court is directed to enter an order certifying a class, the definition of
which shall be in the trial court's discretion. Appellant to recover costs on appeal.

WE CONCUR: O'LEARY, ACTING P. J., IKOLA, J.

Opinion Footnotes

*fn1 The other definition of the class in the memorandum of points and authorities reads: "All persons
in the United States who purchased a Connect 3D product from Buy.com that included a rebate offer
and whose rebate submissions were approved for payment. [¶] Excluded from the Class are the Court,
Defendant, its affiliates, employees, officers and directors, and anyone who was paid his or her rebate
by Buy.com." These definitions are not appreciably different. To conclude the class was not
ascertainable based on these two different definitions clearly constitutes an abuse of discretion.

*fn2 At oral argument, Kershenbaum's counsel advised the court that the inclusion of the reference to
Hannspree products in the proposed order was intended to avoid confusion about the scope of the
class. Specifically, counsel stated that six products sold by Connect 3D were subject to rebates which
were never paid; four of those products were sold under the Connect 3D name, while the other two
were sold under the Hannspree name. Counsel could not, however, explain why the memorandum of

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points and authorities did not also contain that language, speculating that the differing language was the
result of a "scrivener's error." Counsel conceded that by failing to ensure the language of all the related
documents contained the same definition, he caused far more confusion than he prevented.

*fn3 Kershenbaum also cites Lewis v. Robinson Ford Sales, Inc. (2007) 156 Cal.App.4th 359 and Medrazo
v. Honda of North Hollywood, supra, 166 Cal.App.4th 89, for the proposition that a case involving CLRA
claims may be certified as a class action. In both cases, which involved sales of motorcycles or other
vehicles, some members of the proposed classes may have intended to use the vehicles for commercial,
not consumer or household, purposes, and therefore could not properly be a part of a class asserting a
CLRA claim. In both cases, the appellate court reversed the order denying class certification. In neither
case, however, was the issue of the limitation of CLRA claims to consumer plaintiffs raised. A judicial
decision is not authority for a point that was not raised and resolved. (Fairbanks v. Superior Court (2009)
46 Cal.4th 56, 64.)

*fn4 California law applies when a California court is asked to consider the applicability of a choice-of-
law provision, whether that provision elects California law or a foreign state's law. (Discover Bank v.
Superior Court (2005) 134 Cal.App.4th 886, 890-891.)

*fn5 At oral argument, Buy.com's counsel compared the choice-of-law provision in Buy.com's terms of
use agreement to that in the Amazon.com terms of use agreement, arguing Amazon's provision is much
broader. The terms of use agreements of other online retailers are not in the appellate record, and are
not properly before us.

*fn6 Buy.com focuses on Kershenbaum's claim, as asserted in response to Buy.com's motion for
summary adjudication, that Buy.com failed to conduct due diligence on Connect 3D. The distinction
between the ways Kershenbaum has asserted his claims is relevant to our analysis of the trial court's
finding that the claims are vague, discussed post. It is not relevant to the present discussion of whether
the choice-of-law provision applies to Kershenbaum's claims.

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