I concur with the result reached in the majority opinion, but not at all in the route by which it is reached. That route, I suggest, utilizes a quite inappropriate vehicle—a case ineffectively handled below—to render an opinion on not one but two issues (is “opt-in” permitted as a form of class notification under rule 1856(e) of the California Rules of Court and is “opt-in” permissible for purposes of class certification?), neither of which has to be addressed in order to resolve the dispute before us.
In contrast to the majority, I would grant the writ and return this matter to the trial court with express directions to assign this case to a single judge for all purposes, after which that judge should (1) direct counsel for the respective parties to propose their recommended methods for further* 1 notifying potential class members of the pendency of this action, then (2) carefully review who did what to whom concerning discovery regarding the identities of the recipients of the improper faxes in question, and then (c) in light of the parties’ respective class-notification proposals and the court’s findings on the *1557discovery issue, reconsider its ruling regarding the methodology of class notification.
Let me start by noting, first, some facts and then a few legal premises that I believe are critical to an uncomplicated resolution of this dispute. Some of these are noted in the majority opinion, but many are not.
First of all, some relevant facts regarding how this case was handled, or mishandled, below:
1. The majority downplays the significant fact, conceded by petitioner’s counsel at oral argument, that he never moved the court for assignment of the case to a single judge. In its footnote 15, the majority criticizes mainly the San Mateo County Superior Court for not seeing to it that this case was handled by a single judge, consistent with its local rules. Some, but certainly not most, of that criticism may be appropriate because, as the majority notes, that court could have ordered such an assignment itself. But it was clearly plaintiff’s counsel’s burden to bring this issue to the attention of one of the many trial judges who heard this case, and he never did.
2. Plaintiff’s counsel also conceded at oral argument (a concession similarly not noted by the majority) that he could have requested the trial court to order the defendant to send out its notice to the names listed on defendant’s “fax database,” but did not do so.
3. Neither party proposed an “opt-in” method of class notification but, at different times, both sides seemed amenable to it. The real party in interest supports that method, albeit not particularly enthusiastically, via its opposition to the petition for the writ of mandamus addressed to us, and the attorney for the petitioner did so on March 19, 2004, when this technique was first suggested by the trial court. Then, this dialogue took place:
“Mr. Fallat [Petitioner’s Counsel]: Well, Your Honor ... if that is the way the court eventually rules, we can live with that and, quite frankly, what we will end up doing is probably giving notice to everybody on that 800 list ourselves and giving them an opportunity to opt in—
“The Court: Okay.
“Mr. Fallat:—But I don’t want to preclude the various options we have now.”
4. The writ before us does not raise an issue of class definition or class certification, the issue that was involved in almost all of the class action cases cited by the majority, especially the one relied on most heavily by it, Kern v. *1558Siemens Corp. (2d Cir. 2004) 393 F.3d 120 (Kern).2 The class was certified in this case—by, as the majority notes, another judge—in February 2003. The issue here is how to identify who is and who is not a member of that class and notify them; that and only that is what this case is all about.
Now to some legal premises that bear on how we ought to deal with this case:
1. First and foremost is the rule that appellate courts should decide cases on the easiest and simplest bases presented and not “overreach” to issues that are not necessary to decide. (See, e.g., Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230-231 [45 Cal.Rptr.2d 207, 902 P.2d 225]; Hi-Voltage Wire Works, Inc. v. City of San Jose (2000) 24 Cal.4th 537, 577-578 [101 Cal.Rptr.2d 653, 12 P.3d 1068] (conc. and dis. opn. of George, C. J.).) What is called for here—and usually—is a “judicial minimalism.” That concept has been defined by University of Chicago Professor Cass R. Sunstein as “the phenomenon of saying no more than necessary to justify an outcome, and leaving as much as possible undecided . . ..” (Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (1999) p. 3.) The typical minimalist opinion “justifie[s] its decision by reference to a set of factors, not by a broadly applicable rule . . . .” (Id. at p. 16.) In contrast, a “maximalist” opinion decides the case “in a way that sets broad rules for the future and that also gives ambitious theoretical justifications for outcomes.” (Id. at pp. 9-10.) Minimalism, Sunstein continues, facilitates the difficult search for consensus by “making agreement possible when agreement is necessary, and making agreement unnecessary when agreement is impossible.” (Id. at p. 50.)
By its far-reaching opinion, the majority indulges in “judicial maximalism” via an extensive discussion of “opt-in” classes under rule 23 of the Federal Rules of Civil Procedure (federal rule 23) and how that case law should impact a trial court’s implementation of rule 1856(e) of the California Rules of Court (California rule 1856(e)). Such a reach is simply not appropriate, much less required, given (a) the limited record before us and (b) the ineffective handling of this case in the lower court.
2. California law is clear that “[b]ecause 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.” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435 [97 Cal.Rptr.2d 179, 2 P.3d 27]; see also, to the same effect, Block v. Major League Baseball (1998) 65 Cal.App.4th 538, 543 [76 Cal.Rptr.2d 567]; Reese v. Wal-Mart Stores, Inc. *1559(1999) 73 Cal.App.4th 1225, 1233 [87 Cal.Rptr.2d 346].) And, as the majority points out (but then largely ignores), that standard has, most logically, also been applied to disputes concerning providing notice to class members. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 251 [110 Cal.Rptr.2d 145] .)3
3. Under California class action law “[i]t is the plaintiff’s burden to identify class members.” (State of California ex rel. Dept. of Motor Vehicles v. Superior Court (1998) 66 Cal.App.4th 421, 434 [78 Cal.Rptr.2d 88] (DMV); see also Cooper v. American Sav. & Loan Assn. (1976) 55 Cal.App.3d 274, 286 [127 Cal.Rptr. 579].)
4. “Opt-in,” even as a method of class identification, is not as disreputable as the majority suggests. The technique was specifically mentioned by Justice Croskey in Earley v. Superior Court (2000) 79 Cal.App.4th 1420, 1436 [95 Cal.Rptr.2d 57]. And, as the Second Circuit noted in the course of Kern, the technique is specifically mandated in numerous federal statutes and has been used—albeit admittedly rarely—in other, nonstatutory, federal cases. (See Kern, supra, 393 F.3d at pp. 126-129.)
5. No case at all pertinent to this issue has apparently been decided under California rule 1856(e). Additionally, the majority omits to mention two important things regarding that rule. The first is that its drafters made clear that it was intended to reinforce, not undermine, a trial court’s discretion. (See fn. 3, ante.) The second is that, as a simple reading of California rule 1856(e) and federal rule 23(c)(2) makes clear, the two are not even remotely similar in wording.
The record of the two hearings before Judge Mittlesteadt on the issue of class notification makes abundantly clear that the discovery conducted regarding the identity of the members of the class was, to put it mildly, unproductive. I agree with the majority that part of this is clearly because Judge Mittlesteadt was not the judge who supervised discovery on the very issue before her, i.e., the identity of the class members. The other reason or reasons *1560for the lack of productivity are simply unclear from the limited record before us on this writ petition. But I think it is pretty obvious, from a perusal of that record, that those reasons are probably: (a) the possible failure of petitioner’s counsel to diligently pursue discovery of the defendant’s records and/or (b) the possible improper avoidance and resistance of discovery requests by defense counsel.4 But, again, because of the unusual situation where the judges who heard either the certification motion or the discovery disputes were not the same as heard the class notification motions, we do not know who is principally to blame. As I suggested above, that is one of two tasks a new, fully-assigned judge should undertake on remand of this case. The second is to request written proposals from both sides as to methods for class identification and notification. Once those are received, and the “discovery fault” issue explored, I suspect it will be relatively easy to come up with both a fair and appropriate method of class identification and notification.
A trial court wrestling with the issue of class notification clearly has the right, and possibly even the duty, to consider which party is mainly at fault when difficulties arise in the notification process. This was made clear by DMV, supra, 66 Cal.App.4th at pages 436-438. There, the Department of Motor Vehicles (DMV) petitioned for a writ of mandate to direct a Los Angeles trial court to vacate an order certifying a class of persons entitled, per a prior California Supreme Court decision (Woosley v. State of California (1992) 3 Cal.4th 758 [13 Cal.Rptr.2d 30, 838 P.2d 758]), to the refund of license fees for vehicles originally sold outside of California that were higher than the fees charged for similar vehicles sold in California. But also before the court was the issue of how to give, and who should pay for, notice to members of the class, an issue complicated by the actions of the DMV regarding its own records. The court resolved this problem thusly: “Ordinarily, it would be the plaintiff’s burden to identify class members and establish their numerosity. However, because of the particular circumstances presented here, we find it would be equitable in this case to require the DMV to share the costs of notification with plaintiff for the purposes of identifying potential class members. Plaintiff has the responsibility of determining the eligibility of each for inclusion in the *1561litigation class. The trial court shall have the discretion to modify the costs burdens in the event the parties’ conduct justifies.” (DMV, supra, 66 Cal.App.4th at p. 438.)
I would apply this same principle here: if, for example, the trial court’s inquiry on remand shows that petitioner’s counsel has been less than diligent in pursuing available discovery to identify potential class members, the ordering of a reasonable class identification procedure proposed by defendant (including “opt-in”) after the USA Today and Web site publications would seem appropriate. Conversely, if the court determines that defense counsel was mostly responsible for the current state of affairs, ordering that the class be identified in any reasonable manner proposed by petitioner would likewise seem appropriate.
But remanding this matter to the trial court for a careful look at “who killed Cock Robin” in the discovery wars and then revisiting the methodology of class notice is not what the majority does. Rather, it undertakes an extended discussion of the application of federal rule 23(c)(2), and what the federal courts (and commentators thereon) have said about “opt-in”—almost entirely, as noted above, in the context of class certification)—and then declares: “ ‘Opt-in’ requirements seem to us as offensive to the reasonable notice provision of California rule 1856(e) as to that of federal rule 23(c)(2).” (Maj. opn., ante, at p. 1548.)
With this sentence, the majority effectively announces a brand new rule for, apparently, all California class actions: a trial court may never use “opt-in” for any purpose in such actions. But the vehicle by which it does so (1) involves both a very limited record and an unfortunate division of authority between various lower court judges, and (2) is made with only a token acknowledgment, of a trial court’s inherent discretion in such matters.
I think the facts of this case—including but not limited to Judge Mittlesteadt’s legitimate concerns over “under inclusion and over inclusion”—make it an inappropriate vehicle by which to preclude a trial court’s possible discretionary use of an “opt-in” procedure for class identification and notification. Further, the majority opinion effectively announces the same rule for cases involving class certification. I would have thought the proper vehicle by which to announce a rule governing class certification would be a case involving that issue.
*1562In contrast to the majority’s extended exercise of “judicial maximalism,” I would simply reverse the lower court’s order and remand the matter to it with directions to revisit the issue of class notification in the manner suggested above.
A petition for a rehearing was denied June 6, 2005, and the opinion was modified to read as printed above. Haerle, J., was of the opinion that the petition should be granted.
The published and Web site notices required by the trial court’s order of October 13, 2004, were, we were told at oral argument, provided in December 2004 and January 2005. Apparently, over 50 individuals or entities have elected to “opt-in.” This alone suggests that the issue raised by the petition may be at least partially moot.
Interestingly enough, in Kern it was the plaintiff who, for reasons not here relevant, requested the “opt-in” procedure as part of the class certification process.
In its September 12, 2001, report to the Judicial Council recommending the adoption of, among other rules, rule 1856, the Civil and Small Claims Court Advisory Committee specifically noted that that rule “gives the court discretion to determine what is proper notice under the circumstances of the case and who should provide and pay for notice.” (Judicial Council of Cal., Advisory Com. Rep., Uniform Statewide Rules for Class Actions (2001) p. 9.) That report continued: “Notice is to be given to the class, but none of the rules specifically requires notice to ‘each class member.’ The original draft of some of the rules required notice to each member and the committee recommended changing it to be consistent with case law and Civil Code section 1781.” (Id. at p. 12.) It then concludes on this topic: “The rule permits the court to determine the type and scope of notice and who pays for notice, depending on the type of class action and circumstances of the case.” (Id. at p. 14, italics added.)
The majority appears to assume that there was improper conduct on the part of the defendant regarding its handling of its records. (See maj. opn., ante, at pp. 1553-1554.) There are, to be sure, declarations in the record to that effect, but I believe the record before us, which does not include all the pleadings and orders involving the discovery disputes in this case, is far too incomplete to justify any assumption to this effect. The majority also appears to hint to the trial court (maj. opn., ante, at pp. 1554-1555 and fns. 16 and 17) that it might well reconsider its earlier order that the defendant’s fax database is a trade secret. Another panel of this court denied writ review of that order, with Presiding Justice Kline dissenting. I understand fully that such a denial is not “law of the case,” but to use the fact that the panel on this case has changed as a basis for effectively overturning our earlier ruling seems to me a little dubious.