Memorandum Points and Authorities

Cal. Super. - 6th Dist.December 7, 2020

KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO 200V37391 6 Santa Clara - Civil Fred W. Schwinn (SBN 225575) Electronically Filed Raeon R. Roulston (SBN 255622) by SUpenor court Of CA’ Matthew C. Salmonsen (SBN 302854) county Of santa Clara! CONSUMER LAW CENTER, INC. 0n 1/14/2022 5112 PM 1435 K011 Circle, suite 104 Reviewed By: R. Walker San Jose, California 95 1 12-4610 Case #20CV37391 6 Telephone Number: (408) 294-6100 Envelope: 8068320 Facsimile Number: (408) 294-6190 Email Address: fred.schwinn@sjconsumerlaw.com Attorneys for Plaintiff DAVID CHAI SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA DAVID CHAI, individually and 0n behalf Case No. 20CV373916 of all others similarly situated, (Unlimited Civil Case) Plaintiff, Assigned for A11 Purposes t0 V' The Honorable Patricia M. Lucas VELOCITY INVESTMENTS, LLC, a New Jersey limited liability company; VELOCITY PORTFOLIO GROUP, INC., a Delaware corporation; and DOES 1 through 10, inclusive, CERTIFICATION Defendants. Hearing Date: Hearing Time: Hearing Dept: Hearing Location: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR CLASS February 23, 2022 1:30 pm. 3 191 North First Street San Jose, California COMES NOW Plaintiff, DAVID CHAI, by and through counsel Fred W. Schwinn, Raeon R. Roulston and Matthew C. Salmonsen of Consumer Law Center, Inc., and hereby submits this Memorandum of Points and Authorities in Support 0f Plaintiffs Motion for Class Certification. 00000 _ 0 _ MEMORANDUM OF POINTS AND AUTHORITIES Case No. 20CV3739 1 6 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO TABLE OF CONTENTS I. INTRODUCTION ................................................................................................................................ 4 II. COMMON FACTS PREDOMINATE OVER ANY INDIVIDUAL INQUIRY ................................4 III. REQUIREMENTS FOR CLASS CERTIFICATION IN CALIFORNIA .......................................... 5 IV. THE POLICY OF THE STATE OF CALIFORNIA FAVORS CLASS ADJUDICATION, ESPECIALLY IN CASES LIKE THIS ONE ...................................................... 6 V. THE REQUIREMENTS FOR CLASS CERTIFICATION ARE EASILY SATISFIED IN THIS CASE ............................................................................................................... 7 A. The Ascertainability and Numerosity Requirements Are Satisfied ....................................... 7 B. Common Issues of Fact and Law Exist and Predominate over Issues that Affect Only Individual Class Members, Thus Satisfying Commonality ........................ 9 1. The Class is United By Common Issues of Fact........................................................ 9 2. The Class Shares Common Issues ofLaw ................................................................ 10 C. CHAI’s Claims Are Typical of the Claims 0f the Members 0f the Class ............................ 10 D. CHAI and His Counsel Will Fairly and Adequately Represent the Class ........................... 11 E. A Class Action Is A Superior t0 Individual Lawsuits .......................................................... 12 VI. CONCLUSION ................................................................................................................................. 15 _ 2 _ MEMORANDUM OF POINTS AND AUTHORITIES Case N0. 20CV3739 1 6 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO TABLE OF AUTHORITIES CASES Abels v. JBC Legal Grp., P.C. (2005) 227 F.R.D. 541 ............................................................................. 11 Bartold v. Glendale Federal Bank (2000) 81 Cal.App.4th 816 .................................................................. 7 Basurco v. let Century Ins. (2003) 108 Cal.App.4th 110 ....................................................................... 12 Bell v. Farmers Insurance Exchange (2004) 115 Ca1.App.4th 715 ........................................................... 6 Bowles v. Superior Court (1955) 44 Cal.2d 574 ..................................................................................... 8-9 Capitol People First v. State Dept. ofDevelopmental Services (2007) 155 Cal.App.4th 676 ................................................................................................................... 6, 9 Collins v. Rocha (1972) 7 Cal.3d 232 ......................................................................................................... 8 Daar v. Yellow Cab C0. (1967) 67 Cal.2d 695 ....................................................................................... 5, 7 Hebbard v. Colgrove (1972) 28 Cal.App.3d 1017 ..................................................................................... 8 Hewlett-Packard C0. v. Superior Court (2008) 167 Cal. App.4th 87 ........................................................ 6 Hicks v. Kaufman & Broad Home Corp. (2001) 89 Ca1.App.4th 908 .................................................... 7, 9 J.P. Morgan & C0., Inc. v. Superior Court (2003) 113 Ca1.App.4th 195 .................................................. 9 Kraus v. Trinity Management Services, Inc. (2003) 23 Ca1.4th 116 .......................................................... 7 Lazar v. Hertz Corp. (1983) 143 Cal.App.3d 128 ...................................................................................... 8 Lebrilla v. Farmers Group, Inc. (2004) 119 Ca1.App.4th 1070 ................................................................. 8 Lewis v. Robinson Ford Sales, Inc. (2007) 156 Cal.App.4th 359 .............................................................. 6 Linder v. Thrifty Oil C0. (2000) 23 Cal.4th 429 ......................................................................... 5, 6, 13, 14 Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096 ........................................................... 9 McGhee v. Bank ofAm. (1976) 60 Cal.App.3d 442 ................................................................................. 12 Medrazo v. Honda ofNorth Hollywood (2008) 166 Cal. App. 4th 89 ..................................................... 11 Miller v. Woods (1983) 148 Cal.App.3d 862 ........................................................................................ 8, 12 _ 2 _ MEMORANDUM OF POINTS AND AUTHORITIES Case N0. 20CV373916 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO Nat’l Solar Equip. Owners’Ass’n v. Grumman Corp. (1991) 235 Cal.App.3d 1273 .............................. 12 Reyes v. Board ofSupervisors (1987) 196 Cal.App.3d 1263 ..................................................................... 7 Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462 ............................................................... 6, 11, 12 Rose v. City ofHayward (1981) 126 Cal.App.3d 926 ................................................................................ 8 Silva v. Block (1996) 49 Cal.App.4th 345 ................................................................................................ 11 State ofCalifomia v. Levi Strauss & C0. (1986) 41 Cal.3d 460 ................................................................ 7 Stephens v. Montgomery Ward (1987) 193 Cal.App.3d 411 ...................................................................... 7 Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 3 19 ................................................passim Ticcom' v. Blue Shield ofCal. Life & Health Ins. C0. (2008) 160 Ca1.App.4th 528 .................................. 5 Vasquez v. Superior Court (1971) 4 Cal.3d 800 ....................................................................................... 14 Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224 ................................................................. 12 STATUTES Cal. Rules of Court, Rule 3.760 ................................................................................................................ 15 Code 0f Civil Procedure § 382 ......................................................................................................... 5, 8, 15 Civil Code § 1788.2 .................................................................................................................................. 10 Civil Code § 1788.50 ................................................................................................................................ 10 Civil Code § 1788.52 ........................................................................................................................passim Civil Code § 1788.62 ................................................................................................................................ 13 MISC 1 Herbert B. Newberg and Alba Conte, Newberg on Class Actions (5th Ed. 201 1) .................................. 9 _ 3 _ MEMORANDUM OF POINTS AND AUTHORITIES Case N0. 20CV373916 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO I. INTRODUCTION Plaintiff, DAVID CHAI (“CHAI”) brings this putative class action t0 address the abusive debt collection practices 0f Defendants, VELOCITY INVESTMENTS, LLC (“VELOCITY”) and VELOCITY PORTFOLIO GROUP, INC. (“VPGI”). Specifically, Defendants sent a first written communication to CHAI and the putative class that failed t0 include the Consumer Collection Notice required by the California Fair Debt Buying Practices Act (“CFDBPA”), Civil Code § 1788.52(d)(1). Defendants estimate the size of the putative class t0 be 602 individuals in California. Because the letter Which forms the basis 0f this lawsuit is a form letter, and each individual in the putative class is located in California, the commonality and typicality requirements are satisfied. The numerosity requirement is also satisfied, as the size 0f the putative class is large. The class is ascertainable through Defendants’ own records, as Defendants sent 0r caused to be sent the offending collection letter. Finally, as will be addressed more in-depth below and accompanying declarations, CHAI is an adequate class representative, and CHAI’S counsel are adequate class counsel. CHAI seeks certification of a class, defined as follows: A11 persons With addresses in California (ii) t0 whom CONVERGENT OUTSOURCING, INC, sent, 0r caused t0 be sent, an initial written communication in the form of Exhibit “1” t0 the Class Action Complaint for Statutogy Damages herein 0n behalf of Defendants (iii) in an attempt t0 collect a charged-off consumer debt originally owed t0 CITIBANK, N.A., (iv) Which was sold 0r resold t0 Defendants 0n 0r after January 1, 2014, (V) which were not returned as undeliverable by the U.S. Post Office (Vi) during the period one year prior t0 the date 0f filing this action through the date of class certification? II. COMMON FACTS PREDOMINATE OVER ANY INDIVIDUAL INQUIRY This case involves a form collection letter sent by Defendants to 602 California consumers. The collection letter was the first communication from Defendants t0 the class in connection With collection 0f the debt, and failed to include the notice required by the CFDBPA, Civil Code § 1788.52(d)(1). 1 Evidence Offered in Support 0f Plaintiff’s Motion for Class Certification, Exhibit “A” 1] 26. _ 4 _ MEMORANDUM OF POINTS AND AUTHORITIES Case No. 20CV373916 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO Thus, common questions predominate over any individual inquiry. A class action is superior t0 any other way 0f resolving the disputes in this action. The only practicable way to allocate judicial resources and manage the common claims of Defendants’ Victims is to certify those claims. Each class member’s claim is too small t0 justify the cost of individual litigation. Accordingly, Without class treatment, CHAI and the class members are highly unlikely t0 prosecute their claims at all. III. RE UIREMENTS FOR CLASS CERTIFICATION IN CALIFORNIA Code 0f Civil Procedure § 382 authorizes class actions When the question is one 0f a common and general interest 0f many persons 0r When the parties are numerous, and it is impracticable t0 bring them all before the Court. The party seeking certification has the burden 0f establishing the existence 0f both an ascertainable class and a well-defined community of interest among class members. Ticcom’ v. Blue Shield 0f Cal. Life & Health Ins. C0. (2008) 160 Cal.App.4th 528, 537; Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Ca1.4th 319. The community of interest requirement for class certification embodies three factors: (1) predominant common question 0f law 0r fact; (2) class representatives With claims 0r defenses typical 0f the class; and (3) class representatives Who can adequately represent the class. Ticcom', supra, 160 Cal.App.4th at 537. Parties seeking certification 0f claims under Code of Civil Procedure § 382 must also show that a class action is superior t0 other methods 0f resolving the dispute between the parties, mainly, that it is a fair and more efficient means of resolving the dispute than the alternative individual actions. See Daar v. Yellow Cab C0. (1967) 67 Cal.2d 695, 714-15. In considering whether class adjudication is “superior,” trial courts are under the obligation t0 consider the roles of the class action in deterring and redressing wrongdoing, especially where, as here, a large number 0f class members with relatively small individual claims seek relief against a corporate defendant. Linder v. Thrifty Oil C0. (2000) 23 Ca1.4th 429, 445-446. _ 5 _ MEMORANDUM OF POINTS AND AUTHORITIES Case No. 20CV373916 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO The class certification question is essentially a procedural one that does not ask whether an action is legally 0r factually meritorious. Id. at 439-40. A trial court ruling 0n a certification motion determines whether the issues Which may be jointly tried, When compared with those requiring separate adjudication are so numerous 0r substantial that the maintenance of a class action would be advantageous t0 the judicial process and t0 the litigation. Sav-On, 34 Ca1.4th at 326. The focus in a certification dispute is on what type of questions - common 0r individual - are likely to arise in the action, rather than 0n the merits 0f the case. Hewlett-Packard C0. v. Superior Court (2008) 167 Ca1.App.4th 87, 95. The key question is Whether the “theory 0f recovery advanced by the proponents of certification is, as an analytical matter, likely t0 prove amenable t0 class treatment.” Sav-On, 34 Cal.4th at 327; Linder, 23 Cal.4th at 439-440. Reviewing courts consistently 100k t0 allegations 0f the complaint and the declarations 0f the attorneys representing the plaintiff class t0 resolve that question. Sav-On, 34 Cal.4th at 327; Lewis v. Robinson Ford Sales, Ina, (2007) 156 Cal.App.4th 359, 367; Capitol People First v. State Dept. 0f Developmental Services, (2007) 155 Ca1.App.4th 676, 692. IV. THE POLICY OF THE STATE OF CALIFORNIA FAVORS CLASS ADJUDICATION ESPECIALLY IN CASES LIKE THIS ONE It is the declared public policy of the State of California t0 encourage the use of the class action device. Richmond v. Dart Industries, Ina, (1981) 29 Ca1.3d 462, 473. By establishing a technique whereby the claims 0f many individuals can be resolved at the same time, the class suit both eliminates the possibility 0f repetitious litigation and provides small claimants with a means 0f obtaining redress for claims that would otherwise be too small t0 warrant individual litigation. Id., 29 Ca1.3d at 469; Sav- On, supra, 34 Cal.4th at 340. The class action in California was adopted to prevent a failure ofjustice. Bell v. Farmers Insurance Exchange, (2004) 115 Ca1.App.4th 715, 739. Class actions are particularly favored in consumer cases like this one. As the California _ 6 _ MEMORANDUM OF POINTS AND AUTHORITIES Case No. 20CV373916 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO Supreme Court held in Kraus v. Trinity Management Services, Ina, (2003) 23 Cal.4th 116, 126: [C]0nsumer class actions . . . serve important roles in the enforcement 0f consumers’ rights. Class actions . . . make it economically feasible t0 sue When individual claims are too small t0 justify the expense of litigation, and thereby encourage attorneys t0 undertake private enforcement actions. . . . [A] plaintiff may obtain restitution and/or injunctive relief against unfair 0r unlawful practices in order t0 protect the public and restore t0 the parties in interest money 0r property taken by means 0f unfair competition. These actions supplement the efforts 0f law enforcement and regulatory agencies. This court has repeatedly recognized the importance 0f these private enforcement efforts. See also State 0f California v. Levi Strauss & C0. (1986) 41 Cal.3d 460, 471 (“[T]he consumer class action is an essential tool for the protection 0f consumers against exploitative business practices.”). V. THE REQUIREMENTS FOR CLASS CERTIFICATION ARE EASILY SATISFIED IN THIS CASE A. The Ascertainability and Numerosity Requirements Are Satisfied To obtain class certification, a party must establish the existence 0f an ascertainable class. Sav- On, 34 Ca1.4th at 326. A class will be deemed sufficiently ascertainable if it is administratively feasible t0 determine whether a given individual is a member 0f the class. At the certification stage, a plaintiff is not required t0 establish the existence 0r identity of class members. Reyes v. Board 0f Supervisors (1987) 196 Cal.App.3d 1263, 1274; Stephens v. Montgomery Ward (1987) 193 Ca1.App.3d 411, 419. Rather, the class is ascertainable if the definition objectively describes criteria from which membership can be ascertained When and if necessary. “A class is ascertainable if it identifies a group 0f unnamed plaintiffs by describing a set 0f common characteristics sufficient to allow a member of that group t0 identify himself or herself as having a right t0 recover based 0n the description.” Bartold v. Glendale Federal Bank (2000) 81 Ca1.App.4th 816, 828. See Daar, supra, 67 Cal.2d at 706 (“If the existence 0f an ascertainable class has been shown, there is no need to identify its individual members in order t0 bind all members by the judgment”); Hicks v. Kaufman & Broad Home Corp, (2001) 89 Ca1.App.4th 908, 914 (Ascertainability is required “t0 give notice t0 putative Class members as t0 Whom the _ 7 _ MEMORANDUM OF POINTS AND AUTHORITIES Case No. 20CV373916 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO judgment in the action Will be resjudicata.”). “The trial court must determine Whether the class is ascertainable by examining (1) the class definition, (2) the size of the class and (3) the means 0f identifying class members.” Miller v. Woods (1983) 148 Cal.App.3d 862, 873. “Class members are ‘ascertainable’ Where they may be readily identified without unreasonable expense 0r time by reference t0 official records.” Rose v. City 0f Hayward (1981) 126 Ca1.App.3d 926, 932. Here the class is more than simply ascertainable; the number and identities 0f the class members are known. Defendants have stated in a verified discovery response that, based upon a review 0f Defendants’ records, Defendants estimate the size 0f the putative class t0 be 602 individuals in California? As Defendants has provided the size 0f the putative class by reviewing its own records, members 0f the class are readily identifiable based on a review 0f Defendants’ records. See Lazar v. Hertz Corp. (1983) 143 Ca1.App.3d 128, 138 (membership in the class could be ascertained by reference t0 the defendant’s records). Moreover, the letter Which forms the basis 0f this action contains 0n its face the name and address 0f each putative class member.3 The ascertainability requirement is therefore amply satisfied. The proposed class also meets the requirement of numerosity. Code of Civil Procedure § 382 authorizes class suits where “the parties are numerous, and it is impracticable t0 bring them all before the court.” Lebrilla v. Farmers Group, Inc. (2004) 119 Ca1.App.4th 1070, 1074. Under California law, there is no fixed minimum number of claimants t0 maintain a class suit. Rose, 126 Ca1.App.3d at 934. Classes with fewer than 150 members have been certified in this State. Collins v. Rocha, (1972) 7 Cal.3d 232 (44 total plaintiffs/class members); Hebbam’ v. Colgrave, (1972) 28 Ca1.App.3d 1017, 1030 2 Evidence Offered in Support of Plaintiff’s Motion for Class Certification, Exhibit “B” at 7:23; see also Declaration 0fRaeon R. Roulston in Support of Plaintiff’s Motion for Class Certification 1112. 3 See e.g., Exhibit “1” t0 Class Action Complaint for Statutogy Damages, attached as Exhibit “A” to Evidence Offered in Support 0f Plaintiff’s Motion for Class Certification. _ 8 _ MEMORANDUM OF POINTS AND AUTHORITIES Case No. 20CV373916 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO (certification involving as few as 28 class members may be appropriate); Bowles v. Superior Court (1955) 44 Cal.2d 574 (10 class members); Rose, supra (28 class members). Defendants’ disclosure that there are at least 602 class members is prima facie evidence that joinder of all members 0f the class is impracticable. Thus, the numerosity element has been satisfied. B. Common Issues 0f Fact and Law Exist and Predominate over Issues that Affect Only Individual Class Members, Thus Satisfying The Commonality Requirement “In order t0 determine Whether common questions 0f fact predominate the trial court must examine the issues framed by the pleadings and the law applicable t0 the causes of action alleged.” Hicks, 89 Cal.App.4th at 916. The court must also give due weight to any evidence of a conflict of interest among the proposed Class members. See J.P. Morgan & C0., Inc. v. Superior Court (2003) 113 Ca1.App.4th 195, 215. The ultimate question is whether the issues which may be jointly tried, When compared with those requiring separate adjudication, are so numerous or substantial that the maintenance 0f a class action would be advantageous t0 the judicial process and t0 the litigants. Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1104-1 105. “As a general rule if the defendant’s liability can be determined by facts common t0 all members of the class, a class will be certified even if the members must individually prove their damages.” Hicks, 89 Ca1.App.4th at 916. Here, common legal and factual issues predominate. The claims 0f CHAI and the proposed class all arise from Defendants’ practices 0f sending out collection letters Which Violate the CFDBPA by failing to include the disclosure required by Civil Code § 1788.52(d)(1). 1. The Class is United By Common Issues of Fact The proposed class is united by common issues 0f fact and law. Commonality focuses 0n the relationship of common facts and legal issues among class members. 1 Herbert B. Newberg and Alba Conte, Newberg on Class Actions (5th Ed. 201 1) § 3.18, p. 228. Common behavior towards similarly situated class members renders class certification appropriate. Capitol People First, 155 Cal.App.4th at _ 9 _ MEMORANDUM OF POINTS AND AUTHORITIES Case No. 20CV373916 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO 693. The proof of class members’ claims Will turn 0n issues regarding Defendants’ collection letters, conduct and practices With respect t0 the class members, not on any circumstances or characteristics of individual class members, 0r the actions of Defendants towards those individual members. As noted above, Defendants sent nearly identical letters t0 every member of the proposed class. Each letter sent t0 a class member violated the CFDBPA in the same manner. Litigation 0f these issues Will depend 0n class-wide factual and legal issues, not individual showings regarding each class member. 2. The Proposed Class Shares Common Issues 0fLaw The Class Action Complaint for Statutogy Damages (“Complaint”) alleges that Defendants’ conduct constitutes a Violation of the CFDBPA. Specifically, it is alleged that the letter that forms the basis 0f this action fails t0 include the notice required by Civil Code § 1788.52(d)(1).4 As the letter sent t0 the members 0f the class is a form letter, common issues 0f law predominate. Namely, Whether: CHAI and the members 0f the proposed class are “debtors” as that term is defined by Civil Code § 1788.2(h), as incorporated by Civil Code § 1788.50(c); Defendants are “debt collectors” as that term is defined by Civil Code § 1788.2(0), as incorporated by Civil Code § 1788.50(c); Defendants are “debt buyers” as that term is defined by Civil Code § 1788.50(a)(1); the financial obligation alleged to be owed by the class members t0 Defendants is a “consumer debt” as that term is defined by Civil Code § 1788.26), as incorporated by Civil Code § 1788.50(c); the financial obligation alleged t0 be owed by the class members to Defendants is a “charged-off consumer debt” as that term is defined by California Civil Code § 1788.50(a)(2); and Defendants’ first written communication t0 the class failed t0 include the notice required by Civil Code § 1788.52(d)(1).5 C. CHAI’s Claims Are Typical 0f the Claims 0f the Members 0f the Class The typicality requirement is meant t0 ensure that the class representative is able t0 adequately represent the class and focus on common issues. It is only when a defense 4 Complaint fl23. 5 Id, at 111132, 44-51. _ 10 _ MEMORANDUM OF POINTS AND AUTHORITIES Case No. 20CV373916 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO unique t0 the class representative will be a major focus of the litigation, 0r when the class representative’s interests are antagonistic t0 or in conflict with the objectives 0f those she purports t0 represent that denial 0f class certification is appropriate. But even then, the court should determine if it would be feasible t0 divide the class into subclasses t0 eliminate the conflict and allow the class action t0 be maintained. Medrazo v. Honda ofNorth Hollywood (2008) 166 Ca1.App.4th 89, 99, internal citations, brackets, and quotation marks omitted. Like all other members of the proposed class, CHAI received a debt collection letter. The anticipated defenses are not unique t0 CHAI, and there is n0 indication that CHAI’s interests are otherwise in conflict with those of the class. The only difference between the notice received by CHAI and the rest of the members of the proposed class is the consumer’s personal identification information and the amount of the debt alleged to be owed. Personal identifying information 0r the amount 0f the debt alleged t0 be owed are not elements 0f the cause 0f action. The cause 0f action for CHAI as well as the rest of the proposed class rests almost exclusively 0n Defendants’ standard business practice Which violated the CFDBPA. The Northern District of California stated in an FDCPA lawsuit similar t0 the instant case that “[e]ach 0f the class members was sent the same collection letter as [plaintiff] and each was allegedly subjected to the same Violations 0f the FDCPA. Therefore, this Court concludes that claims of the class representative arc [sic] typical of the claims of the class.” Abels v. JBC Legal Grp., P.C., (2005) 227 F.R.D. 541, 545. Because the facts 0f this case are nearly identical - form debt collection letters sent to debtors, which Violate the law - the Court should reach the same conclusion as the Northern District and find that CHAI’s claims of are typical of the class. D. CHAI And His Counsel Will Fairly and Adequately Represent the Proposed Class The class representative must also “adequately represent the class.” Richmond, 29 Ca1.3d at 470; Silva v. Block (1996) 49 Cal.App.4th 345, 351. This requirement is met by fulfilling two conditions. _ 11 _ MEMORANDUM OF POINTS AND AUTHORITIES Case No. 20CV373916 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO First, the named plaintiff must be represented by counsel qualified t0 conduct the pending litigation and second, the plaintiff’s interests cannot be “antagonistic t0 the class.” Richmond, 29 Cal.3d at 475; McGhee v. Bank ofAm. (1976) 60 Cal.App.3d 442, 450. Both requirements are met here. CHAI’s counsel consists 0f lawyers indisputably experienced in prosecuting class action litigation, exclusively consumer class actions, and thus are “qualified, experienced, and generally able t0 conduct the proposed litigation.” Miller, 148 Ca1.App.3d at 874.6 Additionally, CHAI does not have any conflicts With the proposed class. “[O]nly a conflict that goes t0 the very subject matter 0f the litigation Will defeat a party’s claim of representative status.” Richmond, 29 Cal. 3d at 470. That is, only conflicts that are “irreconcilable” can defeat adequacy. Nat’l Solar Equip. Owners’Ass’n v. Grumman Corp. (1991) 235 Ca1.App.3d 1273, 1286. “Most differences in situation 0r interest among class members . . . should not bar class suit.” Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 238. CHAI’s claims present no such conflict.7 Further, CHAI is willing to shoulder the responsibilities of serving as a representative for the class, and has done s0 up to this point in the litigation.8 CHAI has retained able counsel in this case and kept apprised 0f the litigation, in addition to submitting a sworn declaration in support 0f this motion. CHAI has proven, and Will continue t0 prove, that he is a more than an adequate representative of the class in this action. E. A Class Action Is Superior T0 Individual Lawsuits “[A] class action should not be certified unless substantial benefits accrue both t0 litigants and the courts. . . .” Basurco v. 2152‘ Century Ins. (2003) 108 Cal.App.4th 110, 120, internal quotation marks omitted. The question is whether a class action would be superior t0 individual lawsuits. Id. “Thus, even if questions 0f law 0r fact predominate, the lack of superiority provides an alternative ground to 6 See Declaration 0f Fred W. Schwinn 11114-12; Declaration 0f Raeon R. Roulston 11113-11; Declaration 0f Matthew C. Salmonsen W39. 7 See generally Declaration of David Chai. 8 Declaration 0f David Chai 11119-13. _ 12 _ MEMORANDUM OF POINTS AND AUTHORITIES Case No. 20CV373916 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO deny class certification.” Id. Generally, “a class action is proper where it provides small claimants With a method of obtaining redress and When numerous parties suffer injury 0f insufficient size t0 warrant individual action.” Id. at 120-121, internal quotation marks omitted. This case is a prime example 0f why the class action remedy is superior t0 each plaintiff bringing individual claims. This case involves the sending 0f nearly identical form letters t0 602 California consumers, each 0f which fails t0 include the notice required by Civil Code § 1788.52(d)(1). As individuals, each Victim of Defendants’ illegal business practices is entitled t0 recover a maximum 0f $1,000, pursuant t0 Civil Code § 1788.62(a)(2). As a class, they are entitled t0 statutory damages not t0 exceed the lesser 0f five hundred thousand dollars ($500,000) or 1 percent of the net worth of Defendants, pursuant t0 Civil Code § 1788.62(b). Moreover, most of the class members who received the form collection letter have n0 knowledge that their rights are being violated by illegal collection practices. By pursuing this case as a class action, CHAI is essentially informing the individual members 0f the class that their rights have been violated and that they may be entitled to recover from a class fund. If not for this class action, Defendants would be able t0 retain the benefits of abusive debt collection practices. The California Supreme Court has repeatedly cautioned against such a result: “class actions are appropriate when numerous parties suffer injury of insufficient size to warrant individual action and when denial 0f class relief would result in unjust advantage t0 the wrongdoer.” Linder, 23 Ca1.4th at 446, internal quotation and citation omitted. A class action is the superior method t0 ensure that all wronged consumers see their rights are vindicated because the remedy will be available to all members 0f the class. Moreover, certification of the proposed class will best serve the interests of class members and the judicial system. The California Supreme Court has recognized the superiority of the class action device in similar cases. _ 13 _ MEMORANDUM OF POINTS AND AUTHORITIES Case No. 20CV373916 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO A class action by consumers produces several salutary byproducts, including a therapeutic effect upon those sellers who indulge in fraudulent practices, aid to legitimate business enterprises by curtailing illegitimate competition, and avoidance t0 the judicial process of the burden of multiple litigation involving identical claims. The benefit to the parties and the courts would, in many circumstances, be substantial. Vasquez v. Superior Court (1971) 4 Cal.3d 800, 808, superseded by statute 0n other grounds; Linder, 23 Ca1.4th at 445. A class action is the best available method of the efficient adjudication of this litigation because individual litigation 0f class members’ claims would be impracticable and unduly burdensome t0 the courts, in addition to the potential result 0f inconsistent or contradictory judgments. There are no unusual difficulties likely t0 be encountered in the management 0f this litigation as a class action. A class action presents fewer management problems and provides the benefits of single adjudication, economies of scale, and comprehensive supervision by a single court. If each 0f the 602 members of the class decided to take their case t0 court individually, the courts would be inundated with cases. Judicial economy alone is a persuasive reason to certify this class action. In addition to judicial economy, adjudication 0f this action Will result in less attorney’s fees and costs than if each individual consumer brought a separate suit. If the 602 members of the class brought suit for Defendants’ illegal debt collection practices, Defendants would then be liable for 602 sets 0f attorney’s fees and the associated costs of litigation. While it may not be typical for a plaintiff to make an argument that benefits the Defendants, in cases such as this, the class members and Defendants share the same interest 0f keeping costs of litigation t0 a minimum. For the class members, keeping costs 10W means that there will be more money available to compensate for Defendants’ abusive debt collection practices. Therefore, a class action is the superior method for adjudication of this lawsuit. VI. CONCLUSION The proposed class meets the requirements 0f Civil Code § 382, California law, and Cal. Rules 0f Court, Rule 3.760, et seq. CHAI therefore requests the Court: grant CHAI’S motion for class _ 14 _ MEMORANDUM OF POINTS AND AUTHORITIES Case No. 20CV373916 \OOOflGUl-RUJNr-A NNNNNNNNNr-tr-tr-tr-tr-tr-‘r-‘r-tr-‘r-A OOQONUI-PUJNHOKOOOQQUI-PUJNF-‘O certification; appoint Plaintiff, DAVID CHAI, as representative of the class; and appoint the attorneys of Consumer Law Center, Inc., as class counsel. Dated: Janualgy 14, 2022 Respectfully submitted, CONSUMER LAW CENTER, INC. By: D Fred W. Schwinn (SBN 225575) E Raeon R. Roulston (SBN 255622) D Matthew C. Salmonsen (SBN 302854) CONSUMER LAW CENTER, INC. 1435 K011 Circle, Suite 104 San Jose, California 951 12-4610 Telephone Number: (408) 294-6100 Facsimile Number: (408) 294-6190 Email Address: fred.schwinn@sjconsumerlaw.com Attorneys for Plaintiff DAVID CHAI -15- MEMORANDUM OF POINTS AND AUTHORITIES Case N0. 20CV373916