Harry Tran vs St. George & Associates
Case No: 15CV00104
Hearing Date: Wed May 22, 2019 9:30

Nature of Proceedings: Approval of Class Notice

TENTATIVE RULING: The motion for order approving plaintiff’s proposed class notice is ordered continued to June 19, 2019, as set forth herein. Plaintiff’s request that defendant be required to bear the cost of class notification is denied.

BACKGROUND:

Plaintiff Harry Tran is a former tenant of residential property located at 6518 Del Playa, Unit A, Isla Vista, California. The property, an apartment building, is owned by defendant St. George & Associates. Plaintiff alleges that after he vacated his unit, defendant failed to return his security deposit within the time period specified by law and failed to provide a written accounting of all monies deducted from the deposit. On March 20, 2015, plaintiff filed his complaint on behalf of himself and all others similarly situated. On July 8, 2015, plaintiff filed a first amended complaint, the operative complaint, alleging causes of action for (1) declaratory and injunctive relief, (2) violation of Civil Code Section 1950.5, (3) violation of Business and Professions Code Section 17200 et seq., (4) accounting, and (5) conversion.

On August 7, 2017, the court certified the litigation to proceed as a class action. The class is identified as all tenants of defendant’s residential properties from March 25, 2011, to the date of the certification order with respect to the following issues: (1) whether the tenant’s pre-termination notice was proper; (2) whether the return of the tenant’s deposit after termination was timely; (3) whether the deductions for replacement, repainting, or re-flooring properly accounted for ordinary wear and tear; (4) whether the itemization provided in the deposit reconciliation properly showed the cost for replacement, repainting, or re-flooring in regards to ordinary wear and tear; (5) whether the third party worker attachments complied with Civil Code section 1950.5; and, (6) whether a jury waiver may be placed in a residential lease. The court subsequently decertified issue (5).

Plaintiff now moves for an order approving his proposed class notice. Defendant opposes the motion.

ANALYSIS:

Notification to class members is governed by California Rules of Court, Rule 3.766, subdivision (c), which provides:

“Upon certification of a class, or as soon thereafter as practicable, the court must make an order determining:

“(1) Whether notice to class members is necessary;

“(2) Whether class members may exclude themselves from the action;

“(3) The time and manner of notice;

“(4) The content of the notice; and

“(5) The parties responsible for the cost of notice.”

The content of the notice is governed by Rule 3.766, subdivision (d), which states:

“The content of the class notice is subject to court approval. If class members are to be given the right to request exclusion from the class, the notice must include the following:

“(1) A brief description of the case, including the basic contentions or denials of the parties;

“(2) A statement that the court will exclude the member from the class if the member so requests by a specified date;

“(3) A procedure for the member to follow in requesting exclusion from the class;

“(4) A statement that the judgment, whether favorable or not, will bind all members who do not request exclusion; and

“(5) A statement that any member who does not request exclusion may, if the member so desires, enter an appearance through counsel.”

On August 7, 2017, the court granted plaintiff’s motion for class certification. Plaintiff thereafter prepared a proposed class notice and forwarded it to defense counsel for approval. (Motion, Ex. A.) Plaintiff contends that the proposed class notice meets all of the requirements of Rule 3.766, subdivision (d). Section 1 of the proposed class notice contains a brief statement of the case, including the basic contentions of plaintiff and denials of defendant. (Motion, Ex. A, Sec. 1.) Section 5 explains that a class member may request to be excluded from the class and sets forth the procedure for doing so. (Motion, Ex. A, Sec. 5.) Section 4 states that any member of the class who remains in the class and does not request exclusion will be bound by the judgment of the court, whether favorable or not. (Motion, Ex. A, Sec. 4.) Lastly, Section 4 states that any member remaining in the class may enter an appearance in the action through his or her own counsel. (Ibid.)

Plaintiff requests that the court not only approve the proposed class notice, but that it order defendant to bear the cost of notifying the class members. “Ordinarily it is the plaintiff’s responsibility to provide notice and bear the expense of doing so [citation] but there are circumstances in which courts have required the defendant to . . . bear or share the expense of providing [class members] notice.” Hypertouch, Inc. v. Superior Court (2005) 128 Cal.App.4th 1527, 1551. Because defendant has access to the last known contact information for the various class members, whether in the form of email addresses or mailing addresses, plaintiff contends that defendant should be ordered to provide notice to the members. Plaintiff proposes that the notice be provided to the class members within 30 days of the court’s order and that the members be provided 45 days to respond. If defendant is unable to provide email addresses and/or last known mailing addresses of the class members, plaintiff proposes that the members be notified by publication in a newspaper or similar medium.

Defendant contends that the proposed notice is deficient and the court agrees. First, the proposed notice makes reference to an unknown third party named “Timothy N. Phillips, Jr.” without identifying who that person is or his proposed role in the lawsuit. (Motion, Ex. A, Sec. 5.) Presumably, Mr. Phillips is the claims administrator, but the proposed notice is unclear. Second, the proposed notice directs the prospective class members to contact the “Class Administrator” with any questions, but fails to identify who that person is. (Motion, Ex. A, Sec. 7.) Third, the proposed notice contains typos, such as the word “have” instead of “has” (Motion, Ex. A, Sec. 1, line 11) and the word “war” instead of “wear” (Motion, Ex. A, Sec. 2, line 6). Fourth, the proposed notice does not inform the prospective class members that they may have to pay court costs if they do not prevail. Code Civ. Proc. §1032, subd. (b). Finally, the proposed notice contemplates that notice will be sent to the prospective class members by regular mail when email addresses are available for a majority of the tenants. (Motion, Ex. A, Sec. 5.) Since the prospective class consists of residential tenants who have likely moved since their tenancy, the proposed notice should provide for service by email and/or regular mail, whichever is more likely to be effective.

The court will deny plaintiff’s request that defendant be required to bear the cost of class notification. Plaintiff cites Hypertouch, Inc. v. Superior Court, supra, 128 Cal.App.4th 1527 for the proposition of cost shifting, but the court in that case only favored shifting the cost of notice to the defendant in cases where the defendant “failed to retain information that would have made it easy to identify the class.” Id., at 1552. Here, defendant has produced over 26,000 pages of tenant files, including email addresses that are now equally available to plaintiff for purposes of class notification. (Opposition, p. 5:9-11.) That being said, to the extent defendant can obtain a compilation of email addresses for the prospective class members through its “Buildium” program (Opposition, p. 2:15-17), that information shall be provided to plaintiff upon approval of the class notice.

Plaintiff’s motion for order approving the proposed class notice is ordered continued to June 19, 2019, at 9:30 a.m., to allow time for plaintiff to correct the deficiencies set forth above. The revised notice shall be filed and served on or before June 5, 2019. Any response by defendant to the revised notice shall be filed and served no later than June 12, 2019.