Gooden v. Suntrust Mortgage, Inc., et al.,

Filing 109

ORDER signed by Judge John A. Mendez on 12/11/2013 DENYING in its entirety 80 Motion for Class Certification. (Michel, G)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 SHEILA GOODEN, an individual; and MICHELLE HALL, an individual, 13 14 15 Plaintiffs, No. 2:11-cv-02595-JAM-DAD ORDER DENYING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION v. SUNTRUST MORTGAGE, INC., a Virginia corporation, 16 Defendant. 17 18 19 This matter comes before the Court on Plaintiffs Sheila 20 Gooden and Michelle Hall’s (“named Plaintiffs”) Motion for Class 21 Certification (Doc. #83-1) pursuant to Rule 23 of the Federal 22 Rules of Civil Procedure. 23 (“Defendant”) opposes the motion (Doc. #91), and Plaintiffs 24 replied (Doc. #105-2). 25 November 15, 2013. 26 with respect to certain of the proposed classes and took the 27 Motion under submission as to certain other proposed classes. 28 The Court, in this Order, reaffirms its decision stated at the Defendant SunTrust Mortgage, Inc. A hearing on this Motion was held on At the hearing, the Court denied this Motion 1 1 November 15, 2013 hearing and, for the reasons set forth below, 2 denies Plaintiffs’ motion in its entirety. 3 4 5 I. FACTUAL AND PROCEDURAL BACKGROUND This action originated when named Plaintiff Gooden filed her 6 complaint in this Court on September 30, 2011. Gooden alleges 7 that she obtained a mortgage from Defendant in June 2005 to 8 refinance the existing debt on her property. 9 property is located at 632 S. Murdock, Willows, California 95988. Plaintiff Gooden’s 10 According to Plaintiff, the terms of the mortgage agreement 11 required Plaintiff Gooden to purchase hazard and flood insurance 12 coverage in an amount at least equal to the replacement value of 13 the improvements on the property or the principal balance of the 14 mortgage, whichever was less. 15 maintained coverage on the property between $130,130 and $161,960 16 at all times. 17 Plaintiff alleges that she Plaintiff Gooden alleges that in October 2010, after six 18 years of carrying the same amount of insurance, Defendant 19 determined without explanation that her existing insurance 20 coverage was inadequate. 21 Defendant force placed additional flood and hazard insurance on 22 her property and sent her a mortgage bill that contained line 23 item charges for the premiums of the additional coverage. 24 Defendant contends that the line item charges did not include a 25 force placed hazard policy. 26 Gooden alleges that in March 2011, On June 19, 2013, Plaintiff Gooden was granted leave to 27 amend the complaint (Doc. #62). The First Amended Complaint 28 (“FAC”) expanded the class on whose behalf the second and third 2 1 causes of action are being brought and added named Plaintiff Hall 2 to the litigation (Doc. #63). 3 The FAC alleges that in August 2008 Hall refinanced her 4 mortgage on her property at 3229 Glennon Place, Bronx, New York 5 10465 with Defendant. 6 hazard insurance on Plaintiff Hall despite the fact that she 7 already had adequate insurance. 8 these claims and admitted that the hazard policy discussed in the 9 FAC was not actually force placed. Plaintiffs allege Defendant force placed However, Hall has reconsidered Hall does further allege that 10 Defendant force placed unnecessary flood insurance policies on 11 her home. 12 This Court granted Defendant’s most recent Motion to Dismiss 13 (Doc. #88), rejecting Plaintiffs’ theory that the loan documents 14 set a contractual maximum on the amount of hazard insurance that 15 could be required of the borrowers. 16 discretionary language in the documents controlled. 17 further found that the fourth cause of action alleging violation 18 of Cal. Civ. Code § 2955.5 would be dismissed insofar as it 19 alleged a violation based on force placing coverage exceeding the 20 outstanding loan balance, rather than replacement value. 21 The Court found that the The Court The Court has jurisdiction over Plaintiffs’ federal causes 22 of action pursuant to 28 U.S.C. § 1331 and the related state law 23 claims pursuant to 28 U.S.C. § 1367. 24 25 II. OPINION 26 A. 27 Defendant has asked the Court to judicially notice two 28 documents. Judicial Notice The first is a “Brief for the United States as Amicus 3 1 Curiae Supporting Appellees,” submitted by the United States 2 Department of Justice and the Department of Housing and Urban 3 Affairs in a case pending in the Eleventh Circuit. 4 #97) at 1, Exh. A. 5 2006-2012,” issued by the Board of Governors of the Federal 6 Reserve System. 7 request. 8 9 RJN (Doc. The second is a “Consumer Compliance Handbook Id., Exh. B. Plaintiffs have not opposed the The Court may judicially notice a fact that is not subject to reasonable dispute because it is either generally known within 10 the Court’s jurisdiction, or can be accurately and readily 11 determined from sources whose accuracy cannot be reasonably 12 questioned. 13 Fed. R. Evid. 201. “As the brief is not a ‘fact,’ legal or adjudicative, but 14 only legal argument, Fed. R. Evid. 201 is not a bar.” Natural 15 Res. Def. Council v. Sw. Marine, Inc., 39 F. Supp. 2d 1235, 1237- 16 43 (S.D. Cal. 1999) aff'd, 236 F.3d 985 (9th Cir. 2000). 17 Court takes notice of the amicus brief as persuasive argument. 18 The government handbook is a government publication providing 19 guidance on consumer compliance and flood insurance regulation. 20 The Court also takes notice of the handbook. 21 Ctr. of S. California v. City of Los Angeles, CV 12-0551 FMO 22 PJWX, 2013 WL 5424291, at *13 (C.D. Cal. 2013). The See Indep. Living 23 B. 24 Plaintiffs seek to certify the following classes: 25 Proposed Classes 1. Nationwide Hazard Insurance Class (1st Cause of Action) 26 27 28 All persons who have or had loans with Defendant secured by residential property in the United States who were force placed 4 1 for hazard insurance in excess of the lesser of (1) the 2 replacement cost of the property or (2) the greater of the unpaid 3 principal balance at the time of force placement and 80% of the 4 replacement cost of the property on or after September 30, 2010. 5 /// 2. 6 Nationwide Flood Insurance Class (2nd Cause of Action) 7 All persons who have or had loans with Defendant, secured by 8 residential property in the United States, who were force placed 9 for flood insurance in excess of the amount required under the 10 Flood Disaster Protection Act, on or after June 19, 2012. 11 3. 12 Breach of Contract Hazard Classes (3rd Cause of Action) 13 This class is broken into two sub-classes revolving around 14 hazard insurance forced placed in excess of what was required by 15 Plaintiffs’ contracts. This class was limited by this Court’s 16 ruling on Defendant’s Motion to Dismiss (Doc. #88). Reply (Doc. 17 #105-2) at p. 2. 18 a. California Breach of Contract Sub-Class 19 All persons who have or had loans with Defendant, secured by 20 residential property in the state of California, who were force 21 placed for hazard insurance in excess of the replacement cost of 22 the property on or after September 30, 2007. 23 b. New York Breach of Contract Sub-Class 24 All persons who have or had loans with Defendant, secured by 25 residential property in the state of New York, who were force 26 placed for hazard insurance in excess of the replacement cost of 27 the property on or after June 13, 2007. 28 5 1 4. California Hazard Class (4th & 5th Causes of Action) 2 3 All persons who have or had loans with Defendant, secured by 4 residential property in the State of California, who were force 5 placed for hazard insurance in an amount greater than the 6 replacement cost of the property on or after September 30, 2007. 5. 7 8 9 California Flood Class (6th Cause of Action) All persons who have or had loans with Defendant, secured by residential property in the State of California who were force 10 placed for flood insurance in excess of the amount required under 11 the Flood Disaster Protection Act on or after September 30, 2007. 12 C. Legal Standard 13 According to Federal Rule of Civil Procedure 23(a), a 14 plaintiff hoping to certify a class must demonstrate that 15 “(1) the class is so numerous that joinder of all members is 16 impracticable; (2) there are questions of law or fact common to 17 the class; (3) the claims or defenses of the representative 18 parties are typical of the claims or defenses of the class; and 19 (4) the representative parties will fairly and adequately protect 20 the interests of the class.” 21 Fed. R. Civ. P. 23(a). The plaintiff must also meet one of the requirements listed 22 under Federal Rule of Civil Procedure 23(b). 23 request the certification of hybrid classes under both Rule 24 23(b)(2) and (b)(3), the Court finds the monetary relief sought 25 predominates over the injunctive relief being sought rather than 26 being incidental to it, and therefore it is most appropriate to 27 certify, if at all, under Rule 23(b)(3). 28 F.R.D. 242, 247 (C.D. Cal. 2003); Wal-Mart Stores, Inc. v. Dukes, 6 Although Plaintiffs In re Paxil Litig., 218 1 ––– U.S. ––––, 131 S.Ct. 2541, 2560-61 (2011). 2 only 23(b) requirement at issue in this litigation is: “that the 3 questions of law or fact common to class members predominate over 4 any questions affecting only individual members, and that a class 5 action is superior to other available methods for fairly and 6 efficiently adjudicating the controversy.” 7 23(b(3). 8 9 Therefore, the Fed. R. Civ. P. Certification is proper “only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of 10 Rule 23(a) have been satisfied.” 11 (internal citations omitted). 12 to satisfy Rule 23 is the primary focus of a class certification 13 analysis, but that analysis may overlap with the legal and 14 factual issues underlying the plaintiff’s claims insofar as the 15 practical resolution of those claims relate to the prerequisites 16 of Rule 23. 17 D. 18 19 Dukes, 131 S.Ct. at 2551 The ability of the proposed class Id. Rule 23 Requirements 1. Numerosity Numerosity is satisfied if “the class is so numerous that 20 joinder of all members is impracticable.” 21 23(a)(1). 22 challenged by Defendant and the Court finds it to be clearly met. 23 24 Fed. R. Civ. P. Plaintiffs’ satisfaction of this requirement is not 2. Commonality Commonality is required pursuant to Rule 23(a)(2). In the 25 past, a plaintiff satisfied this element by showing at a minimum 26 the “existence of shared legal issues with divergent factual 27 predicates” or “a common core of salient facts coupled with 28 disparate legal remedies within the class.” 7 Hanlon v. Chrysler 1 Corp., 150 F.3d 1011, 1019-20 (9th Cir. 1998). 2 Supreme Court clarified what Rule 23(a)(2) requires. 3 matters to class certification . . . is not the raising of common 4 ‘questions'—even in droves—but, rather the capacity of a 5 classwide proceeding to generate common answers apt to drive the 6 resolution of the litigation.” 7 omitted) (emphasis in the original). 8 question that meets these criteria satisfies rule 23(a)(2). 9 at 2556. 10 In Dukes, the “What Id. at 2551 (internal quotations Even a single common Id. In addition to the threshold requirement of Rule 23(a)(2), a 11 plaintiff seeking certification under Rule 23(b)(3) must satisfy 12 two additional commonality conditions: (1) “[c]ommon questions 13 must ‘predominate over any questions affecting only individual 14 members,’ and [(2)] class resolution must be ‘superior to other 15 available methods for the fair and efficient adjudication of the 16 controversy.’” 17 § 23(b)(3)). 18 Hanlon, 150 F.3d at 1022 (quoting Fed. R. Civ. P. Under Rule 23(b)(3), plaintiffs seeking to represent a class 19 must show that a class action is superior to other methods of 20 adjudication considering “the likely difficulties in managing a 21 class action.” 22 requirement includes consideration of the potential difficulties 23 in notifying class members of the suit, calculation of individual 24 damages, and distribution of damages.” 25 v. Ariz. Citrus Growers, 904 F.2d 1301, 1304–305 (9th Cir. 1990). 26 27 Fed. R. Civ. P. 23(b)(3). The “manageability Six (6) Mexican Workers Since Rule 23(b)(3) is basically a heightened commonality inquiry, the two analyses are typically made together. 28 8 1 2 3. Typicality Rule 23(a)(3) requires that the claims or defenses of the 3 class representative “be typical of the claims or defenses of the 4 class.” 5 possess the same interest and suffer the same injury as the class 6 members.” 7 typicality requirement is satisfied only when “each class 8 member’s claim arises from the same course of events, and each 9 class member makes similar legal arguments to prove the “A class representative must be part of the class and Dukes, 131 S.Ct. at 2550 (citation omitted). 10 defendant’s liability.” 11 The 1013, 1019 (9th Cir. 2011). 12 13 4. Stearns v. Ticketmaster Corp., 655 F.3d Adequacy Rule 23(a)(4) has two requirements: (1) that the named 14 plaintiffs and their counsel do not have conflicts of interest 15 with the proposed class; and (2) that the named plaintiffs and 16 their counsel can prosecute the action vigorously on behalf of 17 the class. 18 not relevant unless they bear on the existence of conflicts among 19 class members or plaintiffs’ ability to vigorously prosecute 20 their case. 21 22 Hanlon, 150 F.3d at 1020. 5. Challenges to adequacy are Id. Ascertainability In addition, implicit in Rule 23 is the requirement that the 23 classes must be clearly ascertainable. Quezada v. Loan Ctr. of 24 California, Inc., No. 2:08-CIV-00177-WBS-KJM, 2009 WL 5113506, at 25 *2 (E.D. Cal. 2009). 26 objective, and presently ascertainable.’ 27 definition specifies “a distinct group of plaintiffs whose 28 members [can] be identified with particularity.”’” “A class definition must be ‘precise, 9 ‘An adequate class Id. (internal 1 citations omitted). 2 D. 3 Analysis 1. 4 Ascertaining Replacement Value Defendant’s main argument in the Opposition is that each 5 cause of action brought on behalf of the classes requires a 6 determination of the replacement value of each of the class 7 members’ homes, a calculation that Defendant contends is 8 “inherently individualized” and cannot be determined on a class- 9 wide basis. Defendant contends that this results in deficiencies 10 in the ascertainability of the classes, and the commonality, 11 predominance, and superiority requirements. 12 Again, implicit in Rule 23 is the requirement that the 13 classes must be clearly ascertainable. Quezada, 2009 WL 5113506, 14 at *2. 15 Circuit is that the need for individualized damages calculations 16 alone cannot defeat class certification (Yokoyama v. Midland 17 Nat'l Life Ins. Co., 594 F.3d 1087, 1094 (9th Cir. 2010)), the 18 Supreme Court in Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1432- 19 33 (2013), found that a plaintiff seeking certification must 20 present an adequate model for determining damages on a classwide 21 basis in order to meet the predominance requirement. 22 be exact but it must present a model that establishes consistency 23 between the plaintiff’s damages case with its liability case. 24 Id. 25 would also be pertinent to a merits determination. In addition, although the general rule in the Ninth It need not This determination must be made even if the court’s analysis Id. 26 Plaintiffs contend the classes are ascertainable by, in 27 relevant part, analyzing the replacement cost value of the class 28 members’ properties at the time an insurance policy was force 10 1 placed. 2 simply use the value that Defendant uses in its own systems for 3 determining replacement value. 4 not actually calculate replacement cost on its own, but rather 5 uses proxies, including a borrower’s “last known voluntary 6 coverage amount.” 7 contend it does not matter what proxy Defendant uses. 8 argue: “Because [Defendant] tracks the data of the amount it uses 9 as the proxy, a comparison between the proxy for replacement cost 10 can be made in order to determine the maximum amount of insurance 11 [Defendant] can force place.” 12 of Defendant’s proxies are appropriate for determining whether 13 Defendant has force placed insurance in excess of the contractual 14 or statutory maximums because it is the same way that Defendant 15 tracks its “portfolio of over 800,000 loans to ensure they have 16 adequate insurance.” 17 MCC at p. 13. Plaintiffs argue that the Court could They admit that Defendant does Id. at p. 14; Reply at pp. 3-4. MCC at p. 14. Plaintiffs They They argue the use Reply at p. 4. Defendant argues that Plaintiffs’ plan to use Defendant’s 18 own proxy for replacement value is inappropriate. It relies on a 19 report from its own expert, Richard Baum. 20 former Chief Deputy Insurance Commissioner for the California 21 Department of Insurance (“CDI”), opines on whether the CDI has 22 established a consistent definition for the term “replacement 23 cost” and whether that definition requires individualized 24 consideration of each dwelling. 25 Exh. A at p.1. 26 number, but rather one that requires consideration of ever 27 changing variables and which “does not lend itself to the simple 28 application of previously fixed numbers.” In the report, Baum, a Barilovits Decl. (Doc. #92) ¶ 2, Baum states that replacement cost is not a static 11 Id. at p. 3. He goes 1 on to state: 2 The Department historically has resisted allowing an insurer to use previously fixed numbers such as homeowner’s outstanding loan balance or last selected coverage amount as a surrogate for replacement coverage. While such fixed numbers may be equivalent to replacement cost under some circumstances, under other circumstances they will not be. . . . There are simply too many variables that can render the borrower’s last known voluntary coverage amount an inaccurate reflection of replacement cost. 3 4 5 6 7 Id. In addition, Defendant points to regulations recently 8 promulgated by the CDI laying out the many factors that should be 9 examined in determining replacement value. See Cal. Code Regs. 10 Tit. 10 § 2188.65. 11 Plaintiffs’ proffered plan to determine replacement value 12 based on Defendant’s proxies raises an issue of first impression. 13 The viability of Plaintiffs’ claims hinges on whether or not 14 Defendant force placed policies on putative class members in 15 excess of replacement value, in violation of contractual language 16 and specific statutory law. Plaintiffs’ plan relies on educated 17 guesses as to the replacement value of each home at issue. 18 Simply because Defendant uses these proxies to determine the 19 amount of insurance it will require of its borrowers as part of 20 its own business model does not change the fact that these 21 proxies are essentially estimates that do not take into 22 consideration the many individual factors that might affect a 23 particular home’s replacement value. Therefore, the Court is 24 being asked to ascertain membership in each of these classes, 25 determine Defendant’s liability, and calculate the amount of 26 damages incurred all based on a shorthand calculation of the 27 value of borrowers’ homes. 28 12 1 Without a more accurate and reliable class wide solution to 2 calculating replacement value, ascertaining the classes and 3 ultimately determining Defendant’s liability would require the 4 Court to examine the individual replacement value of each class 5 member’s home to determine if they suffered an actual injury from 6 the force placement of policies. 7 makes certification of this claim inappropriate. 8 Healthcare Corp., 147 Cal. Rptr. 3d 620, 629 (Ct. App. 2012). 9 other words, because replacement value cannot be determined on a Such an individualized inquiry Tien v. Tenet In 10 class wide basis, the claims are not capable of proof at trial 11 through evidence common to the class. 12 predominate, negating the commonality and superiority 13 requirements. 14 Accordingly, the Court denies certification of each of the 15 classes proposed by Plaintiffs as each would require calculation 16 of replacement value. Individual issues would See Rule 23; Comcast Corp., 133 S.Ct. at 1432-33. 17 Although the Court finds Plaintiffs’ entire motion for class 18 certification is fatally flawed on the issue of replacement value 19 determination, the Court details below the other grounds upon 20 which it finds certification improper. 21 22 2. TILA Classes Plaintiffs seek to certify two nationwide classes, one for 23 hazard and one for flood insurance, based on their TILA claims in 24 the first and second causes of action. 25 classes consist of Defendant’s customers, who are asserting 26 claims that raise substantially similar issues of law and fact. 27 MCC at pp. 16-17. 28 whether Defendant violated TILA by failing to make timely They contend the two The two claims require determination of 13 1 disclosure of all finance charges, other charges, and third party 2 charges imposed in connection with a mortgage loan or line of 3 credit. 4 Defendant utilized “the same or substantially similar disclosure 5 materials and procedures for its customers, irrespective of 6 location.” 7 See 15 U.S.C. §§ 1637, 1637a. Plaintiffs contend that The motion was filed before the Court’s ruling on the most 8 recent motion to dismiss. The motion relies on the closing 9 instructions to set the maximum amount required of the borrowers. 10 However, the Court found that the closing instructions do not 11 place a maximum on the amount of hazard insurance that could be 12 required, but rather the discretionary clauses in the mortgage 13 agreements put it in the sound discretion of Defendant. 14 Court further found “[r]elevant state laws and the implied 15 covenants included in such agreements place limits on that 16 discretion.” 17 Bank N.A., C 12-04026 WHA, 2013 WL 269133, at *8 (N.D. Cal. 18 2013). 19 the discretionary clause in Gooden’s Deed of Trust relied on in 20 making that ruling extends to various forms of insurance, 21 including both hazard and flood insurance. 22 #83-4) Exh. 37, ¶ 5; Gooden Depo. 16:11-18:15. 23 discretionary language is found in Hall’s mortgage. 24 ¶ 5. 25 The MTD (Doc. #88) at p. 8; see Lane v. Wells Fargo Although that motion dealt with solely hazard insurance, Buescher Decl. (Doc. Similar Id. Exh. 12, In addition, both agreements contain provisions that provide 26 the laws of the jurisdiction in which the property was located 27 would apply. 28 argues that TILA does not set any kind of maximum amount of flood Id. ¶ 16; Buescher Decl. Exh. 37, ¶ 16. 14 Defendant 1 or hazard insurance that lenders may require. 2 therefore contends that the respective state laws governing 3 implied contractual covenants, the calculation of replacement 4 value, and limitations on the amount of hazard and flood 5 insurance that can be required would control loans in those 6 states. 7 underlying basis for these claims arises based on the 8 circumstances of the individual transactions and the unique 9 effect of the individual states’ rules pertaining to them. 10 11 Opp. at p. 16. It Furthermore, while TILA is a federal statute, the See Lane v. Wells Fargo Bank N.A., 2013 WL 269133, at *14-15. The Ninth Circuit has held that “the law on predominance 12 requires the district court to consider variations in state law 13 when a class action involves multiple jurisdictions.” 14 AT & T Wireless Servs., Inc., 504 F.3d 718, 728 (9th Cir. 2007). 15 “In a multi-state action, variations in state law may swamp any 16 common issues and defeat predominance.” 17 Co., 84 F.3d 734, 741 (5th Cir. 1996). 18 whether a plaintiff has met its burden, the district court must 19 consider how variations in state law affect predominance and 20 superiority and whether plaintiff has presented “a suitable and 21 realistic plan” for addressing them. 22 Research Inst., Inc., 253 F.3d 1180, 1189 (opinion amended on 23 denial of reh'g, 273 F.3d 1266) (9th Cir. 2001); see also Lane v. 24 Wells Fargo Bank, N.A., C 12-04026 WHA, 2013 WL 3187410 (N.D. 25 Cal. 2013). 26 Lozano v. Castano v. Am. Tobacco Therefore, in determining Id.; Zinser v. Accufix In its Motion for Class Certification, Plaintiffs argue that 27 variations in state law are “nonexistent among the classes in 28 this case.” MCC at p. 18. Defendant points to various examples 15 1 of how state laws vary regarding maximums on insurance, the 2 appropriate calculations for replacement value, and the operation 3 of the implied covenant of good faith and fair dealing. 4 p. 18. 5 argument is a single sentence in a footnote contending that 6 Defendant’s argument would preclude any national TILA classes. 7 Reply at p. 7 n.1. 8 Opp. at In their Reply, Plaintiffs’ only response to this Because it is unclear how the variations in state law would 9 be dealt with, the Court finds that Plaintiffs have not met their 10 burden to establish the commonality and predominance requirements 11 of Rule 23 (a)(1) and (b)(3) for the Nationwide Classes for Flood 12 and Hazard Insurance. 13 classes is hereby denied on this alternate ground. 14 15 3. Accordingly, certification for the TILA Typicality and Adequacy: Hazard Insurance Claims Defendant argues that the named Plaintiffs, Gooden and Hall, 16 are neither typical nor adequate. 17 there is not sufficient evidence that the named Plaintiffs were 18 subjected to force placed hazard insurance, thus undermining Rule 19 23 requirements. 20 Opp. at pp. 22-25. It argues In her deposition and in the First Amended Complaint, Gooden 21 relies on a billing statement, sent to her by Defendant in 22 April/May 2011, for her claim that hazard insurance was 23 improperly force placed on her property. 24 Barilovits Decl. (Doc. #94-1) Exh. C (Gooden Depo.), 100-123. 25 the statement there are three line items entitled “Hazard 26 Insurance,” “Flood Insurance” and “Addl. Hazard Ins.” 27 Decl. (Doc. #83-4) Exh. 35; MCC at p. 21. 28 that the “Addl. Hazard Ins.” line item references a force placed 16 FAC ¶¶ 22-25; On Buescher Plaintiffs contend 1 hazard policy. 2 all category and is actually indicating a charge for additional 3 flood insurance. 4 hazard insurance was ever force placed on Gooden. 5 Defendant contends that the line item is a catch- It argues there is no basis to believe that In the Reply, Plaintiffs rely on the deposition testimony of 6 Terri Curbeira, an Insurance Manager for Defendant. Reply at p. 7 9. 8 the billing statement and testified that the “Addl. Haz. Ins.” 9 indicated a force placed hazard insurance policy. In her deposition, Curbeira was asked about the line items on Curbeira Depo. 10 63:24-66:25. 11 stating that she misread the statement and misspoke in her 12 deposition. 13 declaration that the line item in question actually references a 14 force placed or “gap” flood insurance policy. 15 that this change in statement should be rejected because Curbeira 16 should have gone through the errata process rather than waiting 17 seven months and submitting a declaration. 18 argue Curbeira’s claim of mistake is not credible. 19 However, Curbeira submitted a later declaration Barilovits Decl. Exh. G ¶¶ 5-14. She states in her Plaintiffs contend In addition, they Plaintiffs have not provided any other evidence that Gooden 20 was ever subjected to improper force placement of hazard 21 insurance outside of the line item that Defendant contends 22 actually references flood insurance, nor do they explicitly 23 restate their contention that Gooden in fact was force placed 24 with such insurance. 25 As to named Plaintiff Hall, Defendant claims no hazard 26 policy was ever force placed on her property. 27 Class Certification, Plaintiffs merely mention a bill sent by 28 Defendant to Hall charging her for “Addl. Hazard Ins.,” similar 17 In the Motion for 1 to Gooden’s claim. 2 Defendant points out that Hall testified that her claim regarding 3 a force placed hazard insurance policy, as stated in ¶ 27 of the 4 FAC, was mistaken. 5 12:1. 6 policy force placed on her home was for flood insurance. 7 134:7-19. 8 Reply at pp. 8-10. 9 MCC at p. 21. However, in addition, Barilovits Decl. Exh. B (“Hall Depo.”) 11:6- She further testified in her deposition that the only Id. In the Reply, Plaintiffs fail to address the issue. The Court finds Plaintiffs have failed to provide sufficient 10 evidence that either named Plaintiff was force placed for hazard 11 insurance. 12 hazard insurance classes they seek to certify in this motion, 13 and, without viable hazard insurance claims of their own, the 14 named Plaintiffs would clearly be inadequate to represent the 15 putative classes regarding such claims. 16 denies on this alternate ground Plaintiffs’ motion to certify the 17 following classes for claims involving force placed hazard 18 insurance: the Nationwide Hazard Insurance Class (1st Cause of 19 Action - TILA claim); the California and New York breach of 20 contract subclasses (3rd Cause of Action – Breach of Contract 21 Claim); and the California Hazard Class (4th Cause of Action – 22 Cal. Civil Code § 2955.5 claim; 5th Cause of Action – Cal. Bus. & 23 Prof. Code § 17200 claim). Therefore, Plaintiffs’ claims are not typical of the Accordingly, the Court 24 25 26 III. ORDER For the reasons set forth above and at the November 15, 27 2013 hearing, 28 certification. Plaintiffs’ proposed classes are inappropriate for Accordingly, Plaintiffs’ motion for class 18 1 2 3 4 certification is DENIED in its entirety. IT IS SO ORDERED. Dated: December 11, 2013 ____________________________ JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19

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