Banarji v. Wilshire Consumer Credit

Filing 40

ORDER: (1) Denying 28 Motion to Strike; and (2) Granting Motion to Deny Class Certification. Signed by Judge Roger T. Benitez on 2/12/2016. (knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ALU BANARJI, individually and on
behalf of all others similarly situated,
Plaintiff,

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Case No.: 14-cv-2967-BEN (KSC)
ORDER:

v.

(1) DENYING MOTION TO STRIKE

WILSHIRE CONSUMER CAPITAL,
LLC d/b/a WILSHIRE CONSUMER
CREDIT,

(2) GRANTING MOTION TO DENY
CLASS CERTIFICATION

Defendant.

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Before this Court is a Motion to Strike or Alternatively Deny Class Certification,

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filed by Defendant Wilshire Consumer Capital ("WCC"). (Docket No. 28.) For the

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reasons stated below, the Motion to Strike is DENIED and the Motion to Deny Class

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Certification is GRANTED.
BACKGROUND

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I.

Factual Background
Plaintiff A1u Banarji attests that she is the primary caregiver for her father, Sami

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Banarji. (Opp'n, Decl. of Abbas Kazerounian ("Kazerounian Decl."), Ex. A at 17.) On

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December 2, 2013, Mr. Banarji took out a loan with WCe. (Mot., Decl. of Francisco

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Meza ("MezaDecl."), Ex. A.) On the loan application, Mr. Banarji listed his cell phone

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number as ending in 0861 and his email addressas ..alubanarji@gmai!.com... (Id.) He

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also listed his daughter, Plaintiff, as a reference and provided a different phone number

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for her. (Id.)

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At some point in time, Mr. Banarji failed to make a payment to WCC, and WCC

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began calling the 0861 number to inquire about the debt. During the relevant time

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period, the 0861 phone was on a prepaid cell phone plan paid for by Plaintiff.

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(Kazerounian Dec!., Ex. A at 5.) As it turns out, the 0861 cell phone number and the

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alubanarji@gmai!.com address were not Mr. Banarji's; they belonged to Plaintiff. (Id.,

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Ex. A at 6; Ex. B at 5-6.) Plaintiff asserts she has had that phone number since 2012.

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(Id., Ex. A at 6.)

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WCC repeatedly called the 0861 number asking for Mr. Banarji. (Kazerounian

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Dec!., Ex. A at 9, 16; Meza Dec!., Ex. C.) Interestingly, someone called WCC at least

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nine times using the 0861 number. (Meza Dec!., Ex. C.) Also, in April 2014, an email

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exchange between WCC and alubanarji@gmai!.com occurred, discussing a way to settle

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the debt. (Dec!. of Frank Kim, Ex. H.) Yet, neither Plaintiff nor Mr. Banarji claim they

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participated in the exchange. (Kazerounian Dec!., Ex. B at 27; Mot., Dec!. of Michelle

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Cooper, Ex. I at 38; Ex. J at 67, 70-78.) Plaintiff claims that she had no involvement with

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Mr. Banarji's loan, except to pay a bill for him on occasion. (Kazerounian Dec!., Ex. A

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at 7, 13-14.) In addition, Plaintiff asked WCC to stop calling her cell phone multiple

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times, and asked Mr. Banarji to also convey the same message to WCC. (Id. at 9-10,16.)

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II.

Procedural Background

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Plaintiff initiated this putative class action on December 17, 2014, alleging a

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violation ofthe Telephone. Consumer Protection Act ("TCPA"). She also brought a claim

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under the Rosenthal Fair Debt Collection Practices Act on behalf of herself only.

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Plaintiff filed the operative First Amended Complaint on February 23,2015, and

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Defendant filed an Answer on March 11,2015. (Docket Nos. 10,12.) The parties

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participated in two conferences before the Magistrate Judge and conducted a limited

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amount of discovery. On November 23, 2015, Defendant filed the instant Motion,
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challenging Plaintiffs ability to represent the proposed class.
DISCUSSION

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I.

Defendant seeks to strike Plaintiff as a class representative from the First Amended

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Motion to Strike

Complaint. (Mot. 4.)

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Pursuant to Federal Rule of Civil Procedure 12(f), a court may strike "an

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insufficient defense or any redundant, immaterial, impertinent, or scandalous matter"

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from a pleading. The court may do so "on motion made by a party either before

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responding to the pleading or, if a response is not allowed, within 21 days after being

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served with the pleading." Id.
Defendant filed an Answer on March 11,2015. (Docket No. 12.) Thus, it is

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improper to bring a motion to strike after Defendant has already responded to the First

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Amended Complaint. 1 Accordingly, the motion to strike is DENIED as untimely.

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II.

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Motion to Deny Class Certification
Defendant brings a Motion to Deny Class Certification pursuant to Federal Rule of

Civil Procedure 23, arguing that Plaintiffs claims are not typical of those ofthe class.

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A. Timing of Defendant's Motion

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Rule 23 provides that a court must determine whether to certify a class action "[a]t

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an early practicable time." Fed. R. Civ. P. 23(c)(1)(A). Further, the Ninth Circuit has

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held that a defendant may bring a motion to deny class certification before the plaintiff

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moves to certify the class. Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 941

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(9th Cir. 2009). Although in some cases, the class certification issue cannot be decided

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without some discovery, such discovery is not always necessary. Id.; see Kamm v. Cal.

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City Dev. Co., 509 F.2d 205,209 (9th Cir. 1975) ("Whether or not discovery will be

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permitted ... lies within the sound discretion ofthe trial court."); see also Doninger v.

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the Court notes Defendant was given leave to file a "motion to dismiss for lack of standing"
(Docket No. 22), the Court does not construe this grant ofleave to include a motion under Rule 12(f).
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Pac. Nw. Bell., Inc., 564 F.2d 1304,1313 (9th Cir. 1977) (class certification was properly

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denied without discovery where plaintiffs could not make a prima facie showing of the

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Rule 23 prerequisites).

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Plaintiff argues that Defendant's motion is premature and that she should be

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permitted to conduct discovery on the certification issue in order to present "deposition

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testimony of defendant's technology expert(s), declarations of class members and

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Plaintiffs technology expert(s)." (Opp'n 13.) The Court notes that limited discovery has

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already been conducted-particularly, the depositions of Plaintiff and her father have

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been taken. In addition, the evidence Plaintiff seeks to discover will not affect the

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uniqueness of Plaintiffs case. The Court therefore finds it appropriate to address

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Defendant's arguments at this time.

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B. Merits of Defendant's Motion

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A plaintiff seeking to certify a class must first meet all of the requirements under

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Federal Rule of Civil Procedure 23(a) and must also satisfy at least one of the prongs of

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Rule 23(b). Under Rule 23(a), members of a class may sue as representative parties on

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behalf of all members only if:

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(1) the class is so numerous that joinder of all members is impracticable; (2)
there are questions oflaw or fact common to the class; (3) the claims or
defenses of the representative parties are typical of the claims or defenses of
the class; and (4) the representative parties will fairly and adequately protect
the interests of the class.
Fed. R. Civ. P. 23(a). Upon meeting the Rule 23(a) requirements, a plaintiff must then
present evidentiary proof that one of the 23(b) prongs has been satisfied. Comcast Corp.

v. Behrend, 133 S. Ct. 1426, 1432 (2013).
Rule 23 is not a "mere pleading standard" and a party seeking class certification
"must affirmatively demonstrate his compliance with the Rule." Wal-Mart Stores, Inc. v.
Dukes, 131 S. Ct. 2541, 2551 (2011). It may be necessary for a court to "probe behind
the pleadings before coming to rest on the certification question." Id. (citation omitted).
In making the class certification determination, a court is required to engage in "rigorous

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analysis." Id. (citation omitted). That analysis frequently entails "some overlap with the

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merits of the plaintiff's underlying claim." Id.

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The TCPA prohibits anyone from using an automated telephone dialing system to

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call a cell phone number without the called party's prior express consent. 47 U.S.C. §

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227(b)(1 )(A)(iii). On July 10, 2015, the Federal Communications Commission issued an

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order clarifying that the '''called party' is the subscriber, i.e., the consumer assigned the

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telephone number dialed and billed for the call, or the non-subscriber customary user of a

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telephone number included in a family or business calling plan."2 In re Rules &

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Regulations Implementing the Tel. Consumer Prot. Act of 1991,30 F.C.C. Red. 7961

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(2015) [hereinafter "2015 FCC Order"]' The Order also states that the "subscriber" is the

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person charged for the call, and the "non-subscriber customary user[] is the person whose

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privacy is interrupted by unwanted calls." Id. at ~ 74.

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Defendant specifically challenges Plaintiff's ability to meet the typicality

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requirement in Rule 23(a)(3). The Ninth Circuit construes the typicality requirement

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permissibly and requires only that the representative's claims be "reasonably co-

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extensive with those of absent class members." Rodriguez v. Hayes, 591 F.3d 11 OS, 1124

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(9th Cir. 2010). The claims of the putative class members need not be substantially

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identical to those ofthe putative members. Id. However, if unique defenses exist that

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threaten to divert the focus of the litigation to the detriment of the class as a whole, the

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typicality requirement is not satisfied. Id.; see also JH Cohn & Co. v. Am. Appraisal

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Assocs., 628 F .2d 994, 999 (7th Cir. 1980) ("[T]he presence of even an arguable defense

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peculiar to the named plaintiff or the small subset of the plaintiff class may destroy the

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required typicality of the class as well as bring into question the adequacy ofthe named

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plaintiff's representative.").

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III

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The FCC's clarification of "called party" is entitled to deference under Chevron US.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). See also 47 U.S.C. § 227(b)(2).

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While it is true that Plaintiff was probably annoyed by unwanted robocalls, which

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would be the expected sentiment of the proposed class, Plaintiff s case is unique to

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herself and perhaps a small subset ofthe class. Plaintiffs phone number was given to

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WCC by her father. Plaintiffs father indicated that Plaintiffs phone number was in fact

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his own. And, based upon the circumstances of how the Banarji family looks after one

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another, Plaintiffs father may be a non-subscriber customary user of the phone line,

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which would give him the authority to consent to receiving robocalls on that line. As

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such, the majority of the proposed class may suffer as Plaintiff will be engrossed with

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disputing WCC's arguments regarding Plaintiffs individual case. See Hanan v.

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Dataproducts Corp., 976 F.2d 497,508 (9th Cir. 1992) (quoting Gary Plastic Packaging

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Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 180 (2d Cir. 1990)

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("[A] named plaintiffs motion for class certification should not be granted if 'there is a

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danger that absent class members will suffer if their representative is preoccupied with

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defenses unique to it."')).

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Plaintiffs claim is not typical ofthe proposed class's claims. Accordingly, the
Motion to Deny Class Certification is GRANTED.

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CONCLUSION

Defendant's Motion to Strike is DENIED. Defendant's Motion to Deny Class
Certification is GRANTED.

United State District Judge

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