SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

KERRY WILLIAM SCRIBNER, individually and on behalf of all others similarly situated,

Plaintiff,

vs.

SIMM ASSOCIATES, INC., a Delaware corporation; JEFFREY S. SIMENDINGER, individually and in his official capacity; GREGORY L. SIMENDINGER, individually and in his official capacity; and DOES 1 through 10, inclusive,

Defendants.

Case No. 2017-1-CV-312803

TENTATIVE RULING RE: MOTION FOR CLASS CERTIFICATION

The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on October 4, 2019, at 9:00 a.m. in Department 5. The Court now issues its tentative ruling as follows:

I. INTRODUCTION
II.
This is a putative consumer class action brought pursuant to the California Rosenthal Fair Debt Collection Practices Act (“RFDCPA”). Plaintiff Kerry William Scribner (“Plaintiff”) seeks statutory damages against defendants Simm Associates, Inc., Jeffrey S. Simendinger, and Gregory L. Simendinger (collectively, “Defendants”) based on allegations that Defendants have a routine practice of sending initial written communications that fail to provide the “Consumer Collection Notice” required by California Civil Code section 1812.700, subdivision (a), in violation of section 1812.700, subdivision (b). (Complaint, ¶ 3.)

According to the allegations of the Complaint, filed on July 10, 2017, Plaintiff is alleged to have incurred a financial obligation in the form of a consumer credit account owed to Comenity Capital Bank (the “alleged debt”). (Complaint, ¶ 16.) The alleged debt was incurred primarily for personal, family, or household purposes and is therefore a “consumer debt” as defined by Civil Code section 1788.2, subdivision (f). (Ibid.) Plaintiff was unable to pay the alleged debt and defaulted. (Id. at ¶ 17.)

Plaintiff further alleges that Defendants sent a collection letter dated December 29, 2016, to Plaintiff in an attempt to collect the debt. (Complaint, ¶¶ 19 & 21.) The collection letter was the first written communication from Defendants to Plaintiff in connection with the collection of the debt, but it did not include the notice required by Civil Code section 1812.700, subdivision (a). (Complaint, ¶¶ 22-23.)

Based on these allegations, the Complaint sets forth a single cause of action for “California Consumer Collection Notice.” Plaintiff now moves for class certification.

III. LEGAL STANDARD
IV.
As explained by the California Supreme Court,

The certification question is essentially a procedural one that does not ask whether an action is legally or factually meritorious. A trial court ruling on a certification motion determines whether the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.

(Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326, internal quotation marks, ellipses, and citations omitted.)

California Code of Civil Procedure section 382 authorizes certification of a class “when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court. . . .” As interpreted by the California Supreme Court, Section 382 requires: (1) an ascertainable class; and (2) a well-defined community of interest among the class members. (Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 326.) The “community-of-interest” requirement encompasses three factors: (1) predominant questions of law or fact; (2) class representatives with claims or defenses typical of the class; and, (3) class representatives who can adequately represent the class. (Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 326.)

“Other relevant considerations include the probability that each class member will come forward ultimately to prove his or her separate claim to a portion of the total recovery and whether the class approach would actually serve to deter and redress alleged wrongdoing.” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.) The plaintiff has the burden of establishing that class treatment will yield “substantial benefits” to both “the litigants and to the court.” (Blue Chip Stamps v. Superior Court (1976) 18 Cal.3d 381, 385.)

V. DISCUSSION
VI.
Plaintiff seeks certification of the following class:

All persons with addresses in Santa Clara County, California to whom Defendants sent or caused to be sent, an initial written communication, in the form of Exhibit “1” to the Class Action Complaint for Statutory Damages, in an attempt to collect a charged-off consumer debt, which was not returned undeliverable by the U.S. Post Office, during the period one year prior to the date of filing this action through the date of class certification.

(Memorandum of Points and Authorities in Support of Plaintiff’s Motion for Class Certification, p. 4:16-21.)

Defendants oppose the motion for class certification, arguing Plaintiff has failed to meet his burden of proof on the issues of predominance, typicality, and superiority. Defendants’ arguments all rely on the contention that Plaintiff lacks evidence showing class members’ debts are consumer debts and the propriety of certifying a class hinges on a resolution of this issue. While the determination of whether class members’ debts are consumer debts is related to predominance, typicality, and superiority, it is most closely connected to the threshold issue of ascertainability because the class is defined as including only individuals with consumer debt. Therefore, the primary issue is whether class membership can be determined.

“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 of 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 or time by reference to official records.” (Rose v. City of Hayward (1981) 126 Cal.App.3d 926, 932.)

As stated previously, Defendants contend Plaintiff has failed to provide evidence showing putative class members have incurred consumer debts and a determination of such will require individualized inquiries into the basis for each class member’s debt.

As an initial matter, while it is true Plaintiff bears the burden of establishing class certification is appropriate, the Court notes Defendants have provided no evidence demonstrating any of the approximately 743 putative class members in this case have debts that are not consumer debts. Further, although ultimately each class member will need to show he or she has a consumer debt, it is not apparent at this stage that making such a showing will be unmanageable or lead to numerous individual inquiries.

Defendants cite a single case in support of the proposition that individualized inquiries establish a lack of predominance – Kight v. CashCall, Inc. (2014) 231 Cal.App.4th 112. In Kight, the Plaintiffs challenged a court order decertifying a class alleging violations of Penal Code section 632, the statute prohibiting the undisclosed monitoring or recording of confidential telephone conversations. (Id. at p. 116.) The Kight court found the defendant had “the right to litigate the issue of each class member’s consent and each class member’s claimed objectively reasonable expectation that the call was not being monitored.” (Id. at p. 132.)

The facts of Kight are not relevant to this case. Here, there will not be numerous individualized issues to resolve for each class member. There will simply be a threshold determination regarding the nature of each class member’s debt.

In his reply, Plaintiff cites myriad cases in which courts have found the necessity of a determination of the nature of the debt is not a bar to certification. As one case clearly states: the court “will not deny class certification because of defendants’ own failure to keep adequate records regarding the nature of the debt.” (Tourgeman v. Collins Financial Services, Inc. (S.D. Cal. 2012) 2012 WL 1327824, at *8.) Moreover, “any disputes regarding whether a particular class member’s debt is consumer or commercial can be remedied through proper drafting of the claim form, and at the damages phase of [the] case.” (Macarz v. Transworld Systems, Inc. (D. Conn. 2000) 193 F.R.D. 46, 57.)

Plaintiff points out that Civil Code section 1788.17, concerning the collection of consumer debt, incorporates a federal statute – 15 U.S.C.A. section 1692k – which contemplates the use of class actions in such cases. As explained by a case discussing the federal Fair Debt Collection Practices Act (“FDCPA”): “The need to show that the transactions involved in a particular case are consumer transactions is inherent in every FDCPA class actions [sic]. If that need alone precluded certification, there would be no class actions under the FDCPA.” (Wilborn v. Dun & Bradstreet Corp. (N.D. Ill. 1998) 180 F.R.D. 347, 357.) That reasoning applies with equal force here.

In sum, the fact that it will be necessary to determine whether each class member’s debt is a consumer debt does not preclude certification. Membership in the proposed class can be ascertained by reference to Defendants’ records. To the extent necessary, claims forms can be used at the end of the case to establish a right to recovery for each class member.

Plaintiff’s motion for class certification is GRANTED.

The Court will prepare the final order if this tentative ruling is not contested.

NOTICE: The Court does not provide court reporters for proceedings in the complex civil litigation departments. Parties may arrange for a private court reporter to provide services, but those arrangements must be consistent with the local rules and policies posted on the Court’s website.