Berrien et al v. New Raintree Resorts International, LLC et al

Filing 75

ORDER by Judge Claudia Wilken GRANTING PLAINTIFFS 44 MOTION FOR CLASS CERTIFICATION. (ndr, COURT STAFF) (Filed on 8/15/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
For the Northern District of California

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CURTIS BERRIEN, ROSE HUERTA, TINA
MUSHARBASH, FERN PROSNITZ, MICHAEL
ANDLER, MARCUS BONESS, TIMOTHY
BONNELL, RICHARD BUFORD, ELAINE
CEFOLA, KENNETH DAVIS, JEROME
GAROUTTE, on behalf of themselves and
all others similarly situated,

No. C 10-3125 CW
ORDER GRANTING
PLAINTIFFS’ MOTION
FOR CLASS
CERTIFICATION
(Docket No. 44)

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Plaintiffs,
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v.
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NEW RAINTREE RESORTS INTERNATIONAL,
LLC; RVC MEMBERS, LLC; DOUGLAS Y.
BECH,

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Defendants.
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/

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Plaintiffs Curtis Berrien, Rose Huerta, Tina Musharbash, Fern
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Prosnitz, Michael Andler, Marcus Boness, Timothy Bonnell, Richard
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Buford, Elaine Cefola, Kenneth Davis and Jerome Garoutte charge
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Defendants New Raintree Resorts International, LLC (RRI); RVC
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Members, LLC; and Douglas Y. Bech with intentional interference
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with contractual relations and violations of California’s Unfair
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Competition Law (UCL), Cal. Bus. & Prof. Code §§ 17200, et seq.
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Plaintiffs now move for class certification.

Defendants oppose

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Plaintiffs’ motion.

The motion was heard on June 9, 2011.

Having

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considered oral argument and the papers submitted by the parties,
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the Court GRANTS Plaintiffs’ motion for class certification.
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BACKGROUND

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Plaintiffs are California residents and members of the

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Raintree Vacation Club.

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timeshare insofar as it entitles Club members to access Club-

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affiliated vacation resorts.

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arrangements, Club members do not own an interest in any real

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property.

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specific Club resort property,” and assign that interest to non-

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party RVC Exchange, LLC, in exchange for a Club membership.

Club membership is similar to a vacation

However, unlike traditional timeshare

Instead, they purchase “a beneficial trust interest in a

Compl.

United States District Court
For the Northern District of California

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¶ 20.

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generally entered into with RVC Exchange, which is a subsidiary of

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RRI.

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This transaction is governed by a written agreement,

Plaintiffs allege that RRI directs the operation of the Club

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and that RVC Members, another RRI subsidiary, manages the Club-

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affiliated resorts.

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a principal of both RRI and RVC Exchange.

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parties to the contracts associated with Plaintiffs’ memberships.

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Compl. ¶ 22.

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Bech is the chief executive officer of RRI and
Defendants are not

In June 2009, Bech sent a letter to Plaintiffs and other Club

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members, informing them that a “Special Assessment” would be

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charged to “fund and implement needed improvements” at Club-

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affiliated resorts.

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explained that various maintenance and upgrade projects had been

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deferred because of “continuously rising operating and energy

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costs.”

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billing statements for the Special Assessment stated that Club

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members would be barred from making reservations at Club-affiliated

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resorts until the Special Assessment was paid in full.

Id.

Levine Decl., Ex. I at BONNELL00049.

Bech

A credit card authorization form sent along with

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Several

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Club members complained.

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Special Assessment.

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Special Assessment payments made would be refunded.

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however, also stated that there were plans to “re-issue the Special

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Assessment” in the future.

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On July 2, 2009, Defendants withdrew the

A postcard sent to Club members indicated that
The postcard,

Id., Ex. M.

In or about November 2009, another Special Assessment was

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charged and made payable to RVC Members.

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authorization form related to this Special Assessment, like the one

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associated with the earlier one, stated that Club members would be

A credit card

United States District Court
For the Northern District of California

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precluded from making reservations if their Special Assessment

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payments were not current.

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“Any Member whose account is not current will not be able to use

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their Membership to make or use reservations.”

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P.

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The Club’s website likewise stated,

Levine Decl., Ex.

Plaintiffs complain that Defendants charged the Special

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Assessment without authority to do so.

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class of individuals defined as: “All persons who reside in the

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State of California and were charged the Special Assessment that

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was issued to owners of Raintree Vacation Club and related

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timeshare interests in or around October or November 2009.”

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Plaintiffs represent, and Defendants do not dispute, that the

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proposed class encompasses more than 5,000 Club members.

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Plaintiffs ask that they be appointed as class representatives and

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that their counsel, Girard Gibbs LLP, be named as class counsel.

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They seek to certify a

LEGAL STANDARD
Plaintiffs seeking to represent a class must satisfy the

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threshold requirements of Rule 23(a) as well as the requirements

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for certification under one of the subsections of Rule 23(b).
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Rule

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23(a) provides that a case is appropriate for certification as a

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class action if: “(1) the class is so numerous that joinder of all

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members is impracticable; (2) there are questions of law or fact

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common to the class; (3) the claims or defenses of the

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representative parties are typical of the claims or defenses of the

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class; and (4) the representative parties will fairly and

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adequately protect the interests of the class.”

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23(a).

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United States District Court
For the Northern District of California

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Fed. R. Civ. P.

Rule 23(b) further provides that a case may be certified as a
class action only if one of the following is true:
(1) prosecuting separate actions by or against individual
class members would create a risk of:

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(A) inconsistent or varying adjudications with
respect to individual class members that would
establish incompatible standards of conduct for the
party opposing the class; or
(B) adjudications with respect to individual class
members that, as a practical matter, would be
dispositive of the interests of the other members
not parties to the individual adjudications or would
substantially impair or impede their ability to
protect their interests;

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(2) the party opposing the class has acted or refused to
act on grounds that apply generally to the class, so that
final injunctive relief or corresponding declaratory
relief is appropriate respecting the class as a whole; or
(3) the court finds that the 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. The
matters pertinent to these findings include:

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(A) the class members’ interests in individually
controlling the prosecution or defense of separate
actions;

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(B) the extent and nature of any litigation
concerning the controversy already begun by or
against class members;

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(C) the desirability or undesirability of
concentrating the litigation of the claims in the
particular forum; and
(D) the likely difficulties in managing a class
action.

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Fed. R. Civ. P. 23(b).
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Plaintiffs seeking class certification bear the burden of
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demonstrating that each element of Rule 23 is satisfied, and a
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district court may certify a class only if it determines that the
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plaintiffs have borne their burden.

Gen. Tel. Co. of Sw. v.

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Falcon, 457 U.S. 147, 158-61 (1982); Doninger v. Pac. Nw. Bell,
United States District Court
For the Northern District of California

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Inc., 564 F.2d 1304, 1308 (9th Cir. 1977).

The court must conduct

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a “‘rigorous analysis,’” which may require it “‘to probe behind the
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pleadings before coming to rest on the certification question.’”
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Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011)
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(quoting Falcon, 457 U.S. at 160-61).

“Frequently that ‘rigorous

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analysis’ will entail some overlap with the merits of the
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plaintiff’s underlying claim.

That cannot be helped.”

Dukes, 131

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S. Ct. at 2551.

To satisfy itself that class certification is

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proper, the court may consider material beyond the pleadings and
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require supplemental evidentiary submissions by the parties.
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Blackie v. Barrack, 524 F.2d 891, 901 n.17 (9th Cir. 1975).
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DISCUSSION
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Defendants do not argue that Plaintiffs do not meet Rule
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23(a)’s numerosity, commonality and adequacy requirements.

Having

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considered Plaintiffs’ papers, the Court concludes that Plaintiffs
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satisfy these requirements.
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Defendants argue, however, that Plaintiffs do not demonstrate
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that they would be adequate class representatives, that common
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questions of fact predominate over individual issues and that a

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class action would be a superior method of adjudication.

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Defendants’ arguments are considered below.

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I.

Adequacy

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Rule 23(a)(4) of the Federal Rules of Civil Procedure

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establishes as a prerequisite for class certification that “the

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representative parties will fairly and adequately protect the

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interests of the class.”

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plaintiffs do not have conflicts of interest with other class

This can only be done if the named

United States District Court
For the Northern District of California

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members.

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1998).

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not sufficient to defeat class certification; the conflict must be

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actual, not hypothetical.

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896 (9th Cir. 2003) (“[T]his circuit does not favor denial of class

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certification on the basis of speculative conflicts.”); Soc. Servs.

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Union, Local 535 v. Cnty. of Santa Clara, 609 F.2d 944, 948 (9th

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Cir. 1979) (“Mere speculation as to conflicts that may develop at

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the remedy stage is insufficient to support denial of initial class

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certification.”); Blackie, 524 F.2d at 909 (noting that class

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members might have differing interests at later stages of

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litigation, but that “potential conflicts” do not present a valid

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reason for refusing to certify a class).1

Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir.

However, the mere potential for a conflict of interest is

See Cummings v. Connell, 316 F.3d 886,

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Defendants identify five conflicts of interest that Plaintiffs

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and other putative class members may have with other members of the

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Defendants cite Valley Drug Co. v. Geneva Pharmaceuticals,
Inc., in which the Eleventh Circuit held that named plaintiffs with
potential conflicts with the interests of the absent class members
were not adequate class representatives. 350 F.3d 1181, 1189 (11th
Cir. 2003). This conclusion does not appear to comport with Ninth
Circuit precedent.
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proposed class.2

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A.

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4

The Court considers each separately below.

Intra-class Conflict Between Putative Class Members Who
Have Paid the Special Assessment and Those Who Have Not
Paid

Defendants note that approximately seventy percent of the

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putative class has paid the Special Assessment.

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this statistic undercuts Plaintiffs’ contention that the Special

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Assessment was improper.

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demonstrates that some putative class members favor upgrades and

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renovations to the Club-affiliated resorts.

They argue that

They also contend that the statistic

Defendants assert

United States District Court
For the Northern District of California

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that, if Plaintiffs were to prevail, the putative class would be

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harmed.

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The seventy-percent statistic does not demonstrate that

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Plaintiffs’ interests conflict with those of the proposed class or

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that an intra-class conflict exists.

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members may have paid the Special Assessment, it does not follow

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that the charge was authorized or that Club members believed it

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was.

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required to pay the Special Assessment.

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Although many putative class

As noted above, to enjoy their memberships, Club members were

Furthermore, that Plaintiffs are challenging the Special

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Assessment is not contrary to other Club members’ potential

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interest in upgrading and renovating a facility.

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reliance on Langbecker v. Electronic Data Systems Corp., 476 F.3d

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299 (5th Cir. 2007), is unavailing.

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Circuit identified several intra-class conflicts, including one

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based on the plaintiffs’ request for the dissolution of an

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investment vehicle in which some class members may have desired to

Defendants’

In Langbecker, the Fifth

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Defendants do not challenge the adequacy of Plaintiffs’
counsel.
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continue investing.

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to deprive absent class members of a product or service they enjoy.

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Defendants’ assertion that putative class members would be harmed

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if Plaintiffs prevail is unsupported.

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Plaintiffs’ success would cause existing upgrades or renovations to

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be dismantled.

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making improvements to the Club-affiliated resorts.

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Defendants note that Plaintiffs “have not sought to halt the

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renovations and upgrades being funded by the Special Assessment.”

Id. at 315.

Here, Plaintiffs are not seeking

There is no evidence that

Nor do Defendants contend that they would cease
Indeed,

United States District Court
For the Northern District of California

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Defs.’ Opp’n at 9:1-2.

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from Club members, indicating that Defendants were obliged to

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maintain the resorts.

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Further, Defendants exact maintenance fees

Accordingly, the distinction between paying and non-paying

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putative class members does not pose a fundamental conflict that

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precludes class certification.

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B.

Intra-Class Conflict Between Putative Class Members Who
Support Upgrades and Those Who Do Not

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Defendants’ second argument is similar to their first.

Citing

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various declarations, Defendants contend that some putative class
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members desire upgrades and renovations, whereas others do not.
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Defendants again suggest that, if Plaintiffs were to prevail,
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existing upgrades and renovations would be removed and no further
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improvements would be made.

However, there is no evidence to this

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effect.

Thus, the harm that Defendants threaten is not

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substantiated.
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Accordingly, that some putative class members may desire
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upgrades and others may not does not pose a fundamental conflict
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that precludes class certification.
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C.

Intra-Class Conflict Between Active and Inactive Club
Members

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Defendants argue that there is a fundamental intra-class
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conflict between current, or active, Club members and former, or
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inactive, Club members.

They assert that those in the latter

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category have no incentive to support renovations at the Club6
affiliated resorts.
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This purported conflict simply rehashes Defendants’ previous
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arguments.

Although it is likely true that inactive Club members

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no longer have an interest in improving the facilities, this is not
United States District Court
For the Northern District of California

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contrary to active members’ likely desire for renovations.
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Accordingly, that some putative class members may have active
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Club memberships and others may not does not pose a fundamental
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conflict that precludes class certification.
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D.
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Intra-Class Conflict Between Individuals Who Use Their
Membership Frequently And Those Who Do Not

Defendants assert that the interests of putative class members

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who make regular use of their membership conflict with the

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interests of those who use their membership infrequently.

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argument, however, is based on the same unpersuasive contention

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that some putative class members may favor upgrades and others may

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not.

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with which they use their memberships does not pose a fundamental

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conflict that precludes class certification.

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This

Accordingly, that class members may differ in the frequency

E.

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Intra-Class Conflict Between Class Members Who Prefer a
One-Time Assessment Over an Increase in Annual
Maintenance Fees

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Defendants contend that Plaintiffs’ challenge to the Special

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Assessment conflicts with the interests of class members who prefer

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a one-time fee assessment over an increase in annual maintenance
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dues.

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realize benefits more quickly.

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evidence that the one-time Special Assessment hastened improvements

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at the Club-affiliated resorts.

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between Plaintiffs and putative class members who desire to pay any

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Special Assessment as a one-time lump sum.

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They argue that a one-time fee permits Club members to
However, Defendants do not offer

Thus, there is no actual conflict

Defendants do not present any actual fundamental conflicts
between Plaintiffs and the proposed class, and Plaintiffs’ papers

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demonstrate that they can serve as adequate class representatives.

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United States District Court
For the Northern District of California

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Accordingly, the Court concludes that the adequacy requirement is

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met.

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II.

Predominance

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“The predominance inquiry of Rule 23(b)(3) asks whether

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proposed classes are sufficiently cohesive to warrant adjudication

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by representation.

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common and individual issues.”

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Overtime Pay Litig., 571 F.3d 953, 957 (9th Cir. 2009) (internal

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quotation marks and citations omitted).

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present a significant aspect of the case and they can be resolved

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for all members of the class in a single adjudication, there is

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clear justification for handling the dispute on a representative

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rather than on an individual basis.’”

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(quoting 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,

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Federal Practice & Procedure § 1777 (2d ed. 1986)).

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make “some prediction as to how specific issues will play out in

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order to determine whether common or individual issues predominate

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. . . .”

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Litig., 522 F.3d 6, 20 (1st Cir. 2008) (citation and internal

The focus is on the relationship between the
In re Wells Fargo Home Mortgage

“‘When common questions

Hanlon, 150 F.3d at 1022

A court must

In re New Motor Vehicles Canadian Export Antitrust

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quotation marks omitted).
Below, the Court considers each cause of action to determine

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whether common issues predominate with regard to that cause of

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action.

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A.

Claim for Intentional Interference with Contractual
Relations

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To prevail on a claim for intentional interference with
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contractual relations, a plaintiff must prove “(1) a valid contract
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between plaintiff and a third party; (2) defendants’ knowledge of
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the contract; (3) defendants’ intentional acts designed to induce a
United States District Court
For the Northern District of California

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breach or disruption of the contractual relationship; (4) actual
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breach or disruption of the contractual relationship; and
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(5) resulting damage.”

Tuchscher Dev. Enters., Inc. v. San Diego

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Unified Port Dist., 106 Cal. App. 4th 1219, 1239 (2003) (citations
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omitted).

Defendants contend that common questions of fact do not

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predominate with respect to the fourth and fifth elements of this
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claim.
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Defendants argue that the determination of whether an actual
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breach occurred will require an individualized inquiry into whether
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each Club member’s sales representative discussed the potential for
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a Special Assessment.

This is because, according to Defendants,

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although Club members’ agreements did not provide for Special
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Assessments, the contracts did not bar their use and such charges
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might have been permissible.

This argument is not persuasive.

The

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record does not show that the agreements contained any term
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concerning Special Assessments, and Defendants do not identify any
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provision that may be susceptible of an interpretation that they
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were authorized.

See Wolf v. Superior Court, 114 Cal. App. 4th

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1343, 1350-51 (2004) (noting that, under California law, courts

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must provisionally admit extrinsic evidence to determine whether

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contract provision is reasonably susceptible of a particular

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meaning); see also Trident Center v. Conn. Gen. Life Ins. Co., 847

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F.2d 564, 568-69 (9th Cir. 1988).

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that the contracting parties intended to include Special

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Assessments as part of the agreement.

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inquiry involving extrinsic evidence, such as sales

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representatives’ statements, is not necessary.

United States District Court
For the Northern District of California

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Indeed, Defendants do not assert

Thus, an individualized

Defendants also point to the fact that some Plaintiffs and

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putative class members paid a Special Assessment imposed in 2001

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and 2002.

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individualized inquiry into whether these Club members believed

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that the Special Assessment was consistent with the terms of their

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contracts.

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contracting parties’ intent and be relevant to interpreting

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potentially ambiguous terms of a contract.

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at 1356.

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contractual provision on which this conduct could shed light.

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result, an investigation into each paying Plaintiff or class

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member’s understanding is unnecessary.

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Defendants contend that these payments require an

A course of conduct could provide insight into

Wolf, 114 Cal. App. 4th

However, as noted above, Defendants identify no
As a

Finally, Defendants assert that damage, or injury, cannot be

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demonstrated with common proof.

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putative class members who paid the Special Assessment were damaged

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by paying money wrongfully demanded by Defendants.

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class members who did not pay, according to Plaintiffs, were

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damaged because they were precluded from enjoying their membership

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rights.

However, Plaintiffs maintain that

Those putative

These types of damage do not require consideration of each
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member’s circumstances.

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Plaintiffs demonstrate that, with respect to their claim for

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intentional interference with contractual relations, common

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questions of law and fact predominate.

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not warrant a contrary conclusion.

Defendants’ arguments do

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B.

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California’s UCL prohibits any “unlawful, unfair or fraudulent

UCL Claim

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business act or practice.”

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UCL incorporates other laws and treats violations of those laws as

Cal. Bus. & Prof. Code § 17200.

The

United States District Court
For the Northern District of California

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unlawful business practices independently actionable under state

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law.

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(9th Cir. 2000).

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law may serve as the basis for a UCL claim.

Saunders v. Superior

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Court, 27 Cal. App. 4th 832, 838-39 (1994).

In addition, a

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business practice may be “unfair or fraudulent in violation of the

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UCL even if the practice does not violate any law.”

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Scripps Health, 30 Cal. 4th 798, 827 (2003).

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is premised on the statute’s unfairness prong.3

Chabner v. United of Omaha Life Ins. Co., 225 F.3d 1042, 1048
Violation of almost any federal, state or local

Olszewski v.

Plaintiffs’ UCL claim

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In their reply, Plaintiffs indicate that they intend to
pursue a UCL claim under the statute’s fraud prong based on
Defendants’ representations concerning the effect of a failure to
pay the Special Assessment. Plaintiffs compare Defendants’
statements that a Club member’s default on the Special Assessment
will result in the forfeiture of their memberships to Bech’s
current declaration, which states that the “non-payment of the
Special Assessment, however, has not been used by Raintree Vacation
Club, nor will it be used in the future, as a basis for the
forfeiture of a member’s Club membership or associated timeshare
interest.” Bech Decl. ¶ 6.
Although it is true that, under its fraud prong, the UCL does
not require a showing of reliance by each putative class member,
the named plaintiffs must show that they relied on the challenged
statement. In re Tobacco II Cases, 46 Cal. 4th 298, 318 (2009).
Plaintiffs do not point to evidence that all of them relied on the
(continued...)
13

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Citing Lazar v. Hertz Corp., 69 Cal. App. 4th 1494 (1999),

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Defendants assert that a business practice cannot be unfair if it

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is legal.

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not predominate with respect to this claim because it is necessary

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to determine whether the putative class members’ contracts

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authorized the Special Assessment, which requires an individualized

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inquiry into each putative class member’s intent when the contracts

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were executed.

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above.

United States District Court
For the Northern District of California

10

Thus, Defendants contend, common questions of fact do

This contention is rejected for the reasons stated

Defendants also argue that, under two of the three tests

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employed by California courts to determine whether a defendant

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engaged in an unfair business practice against a consumer,4 this

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Court must determine whether each Club member’s alleged injury was

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3

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(...continued)
purported misstatements. Thus, the current record does not support
certifying a class action with respect to a UCL fraud claim.
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In Cel-Tech Communications, Inc. v. Los Angeles Cellular
Telephone Company, 20 Cal. 4th 163 (1999), the California Supreme
Court enunciated the elements of a UCL claim brought by competitors
under the UCL’s unfair prong. Since then, California courts of
appeal have applied three tests to evaluate claims by consumers
under the UCL’s unfair prong. See, e.g., Lozano v. AT&T Wireless
Servs., Inc., 504 F.3d 718, 735-736 (9th Cir. 2007); Drum v. San
Fernando Valley Bar Ass’n, 182 Cal. App. 4th 247, 256 (2010).
Under one test, a consumer must allege a “violation or incipient
violation of any statutory or regulatory provision, or any
significant harm to competition.” Drum, 182 Cal. App. 4th at 256.
Under the second test, a consumer is required to plead that (1) a
defendant’s conduct “is immoral, unethical, oppressive,
unscrupulous or substantially injurious to consumers” and (2) “the
utility of the defendant’s conduct against the gravity of the harm
to the alleged victim.” Id. (citation and internal quotation marks
omitted). The third test, which is based on the Federal Trade
Commission’s definition of unfair business practices, requires that
“(1) the consumer injury must be substantial; (2) the injury must
not be outweighed by any countervailing benefits to consumers or
competition; and (3) it must be an injury that consumers themselves
could not reasonably have avoided.” Id. at 257 (citation and
internal quotation marks omitted). Defendants’ argument implicates
the second element of the second and third tests.
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outweighed by the benefits of the Special Assessment.

2

contend that those Club members who relinquished their memberships

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after the Special Assessment was charged might have realized no

4

benefit, whereas those who maintained their memberships might have.

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However, under Plaintiffs’ theory of liability, the alleged harm

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was the assessment of an unauthorized fee.

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inquiry will be whether the charge was outweighed by the benefits,

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if any, that Club members could have enjoyed.

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Club member decided to forego any benefits is immaterial.

United States District Court
For the Northern District of California

10

Defendants’ arguments are unavailing.

Defendants

Thus, the appropriate

That a particular

Plaintiffs demonstrate

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that, with respect to their UCL claim under that statute’s

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unfairness prong, common questions of law and fact predominate.

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C.

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Defendants contend that their affirmative defenses of

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voluntary payment and equitable offset require consideration of

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each putative class member’s circumstances.

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Affirmative Defenses

1.

Voluntary Payment

California law provides that payments “‘voluntarily made, with

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knowledge of the facts, cannot be recovered.’”

20

Malamed, 185 Cal. App. 4th 1550, 1557 (2010) (quoting W. Gulf Oil

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Co. v. Title Ins. & Trust Co., 92 Cal. App. 2d 257, 266 (1949)).

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This affirmative defense is subject to the exception that payments

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“‘of illegal claims enforced by duress, coercion, or compulsion,

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when the payor has no other adequate remedy to avoid it, will be

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deemed to have been made involuntarily and may be recovered, but

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the payment must have been enforced by coercion and there must have

27

been no other adequate means available to prevent the loss.’”

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Steinman, 185 Cal. App. 4th at 1558 (quoting W. Gulf Oil, 92 Cal.
15

Steinman v.

1

App. 2d at 264).

2

requires two inquiries: (1) whether a “reasonably prudent man”

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would have found “that in order to preserve his property or protect

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his business interests it is necessary to make a payment of money

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which he does not owe” and (2) whether the party demanding payment

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acted wrongfully, “with the knowledge that the claim asserted is

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false.”

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internal quotation marks omitted).

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question for the trial court’s determination.”

Duress, for the purposes of this defense,

Steinman, 185 Cal. App. 4th at 1558-59 (citation and
The first component raises “a
Id. at 1558.

United States District Court
For the Northern District of California

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Assuming that the voluntary payment affirmative defense

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applies to consumer actions, Defendants’ invocation of it in this

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case does not compel individualized inquiries.

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that any payment of the Special Assessment was made under duress.

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Under Steinman, the Court must first consider whether a reasonably

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prudent person would have found that making the payment was

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necessary, which is an objective question that does not require

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consideration of each Club member’s circumstances.

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analysis focuses on Defendants’ actions and knowledge, and likewise

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does not mandate individual inquiries.

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Plaintiffs contend

The second

Accordingly, Defendants’ proposed voluntary payment

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affirmative defense does not defeat Plaintiffs’ showing with regard

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to predominance.

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2.

Equitable Setoff

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Defendants contend that they are entitled to an equitable

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setoff for the value they may have conferred on Plaintiffs or other

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putative class members through improvements funded by the Special

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Assessment.

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to the amount each class member may receive as damages.

Assuming that such a defense applies here, it pertains

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“The

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potential existence of individualized damage assessments, however,

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does not detract from the action’s suitability for class

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certification.”

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1087, 1089 (9th Cir. 2010).

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Yokohama v. Midland Nat’l Life Ins. Co., 594 F.3d

Thus, Defendants’ proposed equitable setoff defense does not

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preclude class certification.

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III. Superiority

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Defendants argue that a class action is not a superior method
to resolve this litigation because individual inquiries are

United States District Court
For the Northern District of California

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required.

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are not necessary.

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concludes that this action satisfies Rule 23(b)(3)’s superiority

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requirement.

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Rule 23, the Court certifies the proposed class.

However, as already explained, individualized inquiries
Having considered Plaintiffs’ papers, the Court

Because Plaintiffs meet the requirements set forth by

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CONCLUSION

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For the foregoing reasons, the Court GRANTS Plaintiffs’ motion

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for class certification.

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hereby certified pursuant to Rule 23(b)(3): “All persons who reside

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in the State of California and were charged the Special Assessment

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that was issued to owners of Raintree Vacation Club and related

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timeshare interests in or around October or November 2009.”

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Plaintiffs Curtis Berrien, Rose Huerta, Tina Musharbash, Fern

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Prosnitz, Michael Andler, Marcus Boness, Timothy Bonnell, Richard

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Buford, Elaine Cefola, Kenneth Davis and Jerome Garoutte are

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appointed to be representatives for this class, and their counsel,

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Girard Gibbs LLP, is designated as class counsel.

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//

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//

(Docket No. 44).

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The following class is

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The hearing on the parties’ cross-motions for summary judgment

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and a further case management conference are set for February 16,

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2012 at 2:00 p.m.

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IT IS SO ORDERED.

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Dated: 8/15/2011
CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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