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(Id., 20) Second, the City notes that Plaintiffs have not shown that Tier 2 rates, for example, actually represented an overcharge and how much the overcharge would have been. 845.) The foregoing discussion leads to the following question: is the lack of a clear definition of which customers were overcharged fatal from either an ascertainability or commonality standpoint? The fact that Tier 2 customers ultimately may not have been overcharged does not mean that the class cannot be ascertained.

Along these lines, the City cites a study by Raftelis Financial Consultant designed to align water charges with cost of service, which led to raising the rates applicable to Tier 2 usage from .25/ccf to .75/ccf in 2014. Presumably, plaintiffs will be able to establish at the trial which tiers were undercharged and which were overcharged.

Since City Water didn't try to calculate the actual costs of service for the various tiers, the trial court's ruling on tiered pricing must be upheld simply on the basis of the constitutional text. at 1506.)Notwithstanding this lack of a study from which it could be determined which tiers or customers actually were undercharged and which were overcharged, Plaintiffs contend that the City has already made this determination by virtue of its refund program.

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The Court will not entertain a request for continuance nor filing of further documents once the ruling has been posted.

Superior Court (2012) 53 Cal.4th 1004, 1021 [internal quotes and citations omitted.) These certification elements are typically referred to as: (1) ascertainability; (2) numerosity; (3) commonality; (4) typicality; (5) adequacy; and (6) superiority.

14 to Bannigan Decl., ROA 270) states that overbillings made between 8/28/13 and 7/1/14 resulted in overpayments which were made if the customer was billed more than a Tier 1 water rate at any time during the relevant time period.

While Plaintiffs assumption is certainly understandable given the language on the Refund Claim form, it turns out that there is no evidence that establishes whether customers in tiers higher than Tier 1 actually were overcharged.

fact that class may ultimately turn out to be overinclusive not determinative; most class actions contemplate eventual individual proof of damages, including possibility some class members will have none The foregoing analysis applies equally to the Citys argument that Plaintiffs will be unable to show a means of establishing damages on a class wide basis.

To the contrary, assuming Plaintiffs are able to demonstrate the cost of service for each tier, then it should be relatively simple to calculate each customers damages. Further, if the City is correct in its argument that there should be a set-off from these damages for Tier 1 undercharges, then that calculation also is not difficult.

The class is ascertainable if it identifies a group of unnamed plaintiffs by describing a set of common characteristics sufficient to allow a member of that group to identify himself as having a right to recover based on the description. [class of employees ascertainable in spite of absence of specific rest period records; speculation that goes to the merits of ultimate recovery [is] an inappropriate focus for the ascertainability inquiry]; In short, the trial court's analysis unnecessarily confused issues of ascertainability with the merits of the underlying claims.

Dynamex records are adequate to identify those persons classified as independent contractors who qualify for membership in the proposed class.

(Capistrano Taxpayers Association, Inc., supra at 1499.) The failure to limit water fees to the cost of service attributable to given parcels was deemed to violate Proposition 218.

Although the court of appeal acknowledged that the Citys rate structure effectively undercharged some customers and overcharged others, it did not make a determination as to which tiers fell into which category for the simple reason that the City never calculated the cost of service for the four tiers.

(E.g., Class members must be ascertainable (readily identifiable without unreasonable expense or time by reference to official records) so that notice can be given to putative class members as to whom the judgment will be res judicata. App.4th 719, 728 [internal quotes omitted].) 1493, 1499, the court of appeal found that SJC Water [the City] allocated its total costs in such a way that the anticipated revenues from all four tiers would equal its total costs, and thus the four-tier system would be, taken as a whole, revenue neutral, and SJC Water would not make a profit on its pricing structure.