NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 14 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TISHA HILARIO, individually and on No. 23-15264 behalf of a class of all others similarly situated, D.C. No. 3:20-cv-05459-WHO

Plaintiff-Appellee,

MEMORANDUM*

v.

ALLSTATE INSURANCE COMPANY,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California William Horsley Orrick, District Judge, Presiding

Argued and Submitted January 11, 2024 San Francisco, California

Before: SILER,** CLIFTON, and M. SMITH, Circuit Judges.

Tisha Hilario brought a class action suit against Allstate Insurance Company

for negligence and unfair and fraudulent business practices under Cal. Bus. & Prof.

Code § 17200, et seq., alleging that Allstate “artificially inflated premiums” for

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. many California homeowners by double counting built-in garage space. Hilario

successfully sought class certification under Federal Rule of Civil Procedure

23(b)(3), and the district court redefined the class as: “All Allstate California

homeowners’ insurance policyholders as of March 2019, who paid premiums and

had at least one built-in garage, and whose garage square footage was counted

twice in calculating insured square footage and premiums.” Allstate timely filed an

interlocutory appeal of the class certification ruling. We have jurisdiction under

28 U.S.C. § 1292(e) and Federal Rule of Civil Procedure 23(f). Because the parties

are familiar with the facts, we do not recount them here, except as necessary to

provide context to our ruling. We affirm.

1. On appeal, Allstate argues for the first time that Hilario lacks standing.

“Questions of standing and ripeness may be raised and considered for the first time

on appeal, including sua sponte,” and are reviewed de novo. Stormans, Inc. v.

Selecky, 586 F.3d 1109, 1119 (9th Cir. 2009). In class actions, the named plaintiff

is the focus of the standing inquiry. Ellis v. Costco Wholesale Corp., 657 F.3d 970,

978 (9th Cir. 2011). Allstate’s sole argument is that Hilario has not suffered an

injury in fact because the true square footage of her house was always higher than

Allstate’s estimate, which it used to calculate Hilario’s premiums.

This argument lacks merit. It is undisputed that Hilario paid a higher

insurance premium than she otherwise would have because Allstate artificially

2 23-15264 inflated its square footage estimate of Hilario’s home by double-counting garage

space when it implemented Project UIN. See Lujan v. Defenders of Wildlife, 504

U.S. 555, 560–61 (1992) (Standing requires a plaintiff to suffer an “injury in fact,”

that is “‘fairly traceable’ to the challenged action,” and is “‘likely’ to be redressed

by a favorable decision.’”). Hilario suffered a “concrete and particularized” injury

that was “actual or imminent, not conjectural or hypothetical”—she paid more than

she otherwise would have because Allstate double counted the square footage of

her garage space. See Maya v. Centex Corp., 658 F.3d 1060, 1069 (9th Cir. 2011)

(quotations omitted). “This is a quintessential injury-in-fact.” See id. at 1069

(plaintiffs had standing where, “as a result of defendants’ actions, [plaintiffs] paid

more for their homes than the homes were worth at the time of sale”).

2. The district court did not abuse its discretion in redefining the certified

class. “Rule 23 provides district courts with broad authority at various stages in the

litigation to revisit class certification determinations and to redefine or decertify

classes as appropriate.” Wang v. Chinese Daily News, Inc., 737 F.3d 538, 546 (9th

Cir. 2013). Allstate’s argument that the class is too broadly defined because it may

contain uninjured members fails because “even a well-defined class may inevitably

contain some individuals who have suffered no harm as a result of a defendant’s

unlawful conduct.” Ruiz Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1136 (9th

Cir. 2016).

3 23-15264 3. Parties seeking class certification must satisfy Rule 23(a)’s requirements

of numerosity, commonality, typicality, and adequacy. Shady Grove Orthopedic

Assocs., P.A. v. Allstate Insurance Co., 559 U.S. 393, 398 (2010). Here, the district

court certified the class under Rule 23(b)(3), which additionally requires that

“questions of law or fact common to class members predominate over any

questions affecting only individual members, and that a class action is superior to

other available methods for fairly and efficiently adjudicating the controversy.”

Allstate challenges the district court’s decision to certify the class with respect to

its conclusions on typicality, predominance, and superiority. Reviewing for abuse

of discretion, we hold that the district court’s conclusions were not illogical,

implausible, or unsupported by the record. See Leyva v. Medline Industries Inc.,

716 F.3d 510, 513 (9th Cir. 2013).

As to typicality, “a named plaintiff’s motion for class certification should

not be granted if there is a danger that absent class members will suffer if their

representative is preoccupied with defenses unique to it.” Hanon v. Dataproducts

Corp., 976 F.2d 497, 508 (9th Cir. 1992) (quotation marks omitted). Allstate

argues Hilario did not correct the square footage estimate Allstate used to

determine her premium as contractually required, and that this unique contractual

dispute will “consume the focus of this litigation.” First and foremost, the true

square footage of Hilario’s home is irrelevant to determining whether Allstate

4 23-15264 violated California law when it implemented Project UIN. As the district court

explained, “[e]ven if Hilario’s policy should have reflected that the ‘true’ square

footage of her house was larger than what was being insured, that is a separate

question from whether Allstate increased her premium because it double counted

her garage space.” Any dispute between Allstate and Hilario over the true square

footage of her home is inapposite and will not consume the focus of this litigation.

Second, Allstate’s potential contractual counterclaim arises from boilerplate

language in Hilario’s policy. Since the language is boilerplate, it is likely to be

found on every class member’s homeowner’s policy and cannot be said to be a

defense unique to Hilario.

Allstate contends that individual damages inquiries will predominate, but

“the need for individual damages calculations does not, alone, defeat class

certification.” Vaquero v. Ashley Furniture Industries, Inc., 824 F.3d 1150, 1155

(9th Cir. 2016). Damages issues predominate only where a plaintiff cannot “prove

that damages resulted from the defendant’s conduct.” Id. at 1154. “No such

problem exists in this case” because “even if the measure of damages proposed

here is imperfect, it cannot be disputed that the damages (if any are proved)

stemmed” from Allstate’s implementation of Project UIN and its double-counting

of garage space. See id. at 1154-55.

5 23-15264 Finally, a class action is not superior where “each class member has to

litigate numerous and substantial separate issues to establish his or her right to

recover individually.” Zinser v. Accufix Research Institute, Inc., 253 F.3d 1180,

1192 (9th Cir. 2001). Allstate makes the same arguments against the district

court’s superiority conclusion as with its predominance conclusion, namely that the

need to calculate individual damages would make this class action unmanageable.

But the denial of class certification is improper on superiority grounds where that

denial is “based on manageability concerns on the need to individually calculate

damages.” Leyva, 716 F.3d at 515. As with predominance, the need to calculate

individual damages cannot defeat class certification. Id.

AFFIRMED.

6 23-15264