Alex Derval et al v. Xaler,et al, No. 2:2019cv01881 - Document 38 (C.D. Cal. 2020)

Court Description: ORDER DENYING PLAINTIFFS MOTION FOR CLASS CERTIFICATION 15 by Judge Otis D. Wright, II . (lc) .Modified on 1/28/2020 (lc).

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Alex Derval et al v. Xaler,et al Doc. 38 O 1 2 3 4 5 6 7 8 United States District Court Central District of California 9 10 11 Case 2:19-CV-01881-ODW (JEMx) ALEX DERVAL et al., 12 Plaintiff, 13 v. 14 XALER et al., ORDER DENYING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION [15] Defendants. 15 16 I. 17 INTRODUCTION 18 Plaintiffs Alex Derval and Morgan Simmons (“Plaintiffs”) move to certify the 19 class in this action seeking relief for Defendant Xaler’s alleged violations of the 20 Telephone Consumer Protection Act (“TCPA”) (“Motion”). 21 Certification (“Mot.”), ECF No. 15.) Plaintiffs allege that Xaler caused automated 22 text messages to be sent to their cellular phones without their express consent. 23 (Compl. ¶ 1; Mot. 5.) Xaler opposes. (Opp’n to Mot. (“Opp’n”), ECF No. 32.) For 24 the reasons that follow, the Court DENIES Plaintiffs’ Motion.1 (ECF No. 15.) (Mot. for Class 25 26 27 28 1 After considering the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15. II. 1 BACKGROUND 2 Xaler is a cannabis delivery company operating in Los Angeles County, in 3 Santa Monica, Venice, West Los Angeles, Beverly Hills, Culver City, and Marina Del 4 Rey. (Compl. ¶ 12, ECF No. 1; Decl. of Richard Nguyen (“Nguyen Decl.”) ¶¶ 1–2, 5 ECF No. 32-1.) Plaintiffs contend that Xaler has a “uniform policy of causing text 6 messages to be sent to consumers’ cellular telephones on Xaler’s behalf without prior 7 express consent.” (Mot. 1, 5.) Plaintiffs assert they and the class they seek to 8 represent have received numerous such unwanted messages despite requests that the 9 messages stop and that these automated text messages violate the TCPA. (Mot. 1, 5.) 10 Xaler responds that it sends its text message advertisements only to customers 11 who have consented to receive messages from Xaler. (Opp’n 1; Nguyen Decl. ¶ 4.) 12 The messages include the option to text “STOP” and stop receiving the messages. 13 (Opp’n 1; Nguyen Decl. ¶ 4.) However, an issue unique to AT&T customers prevents 14 a “STOP” request from processing and requires AT&T users to manually opt-out 15 through an online web portal. (Opp’n 1, 4; Nguyen Decl. ¶¶ 4–5.) AT&T users 16 continue to receive the text messages until they opt-out through the web portal. 17 (Opp’n 1; Nguyen Decl. ¶ 5.) 18 In March 2019, Plaintiffs initiated this putative class action asserting two causes 19 of action against Xaler for negligent and willful violation of the TCPA. (Compl. 20 ¶¶ 78–97.) Plaintiffs seek statutory damages and injunctive relief. (Compl. ¶¶ 99– 21 104.) Plaintiffs seek to certify the following class: All persons within the United States who had or have a number assigned to a cellular telephone service, who received at least one text message using an [automatic telephone dialing system] from [Xaler] between the date of filing this action and the four years preceding, where such text messages were sent and placed for the purpose of marketing where the recipient did not give their express consent to be contacted by [Xaler]. 22 23 24 25 26 (Mot. 8.) The Motion is fully briefed. (See Opp’n; Reply, ECF No. 36.)2 27 28 2 Plaintiffs object to Xaler’s opposition and request that the Court strike it on the basis that the opposition is untimely and thus prejudicial to Plaintiffs’ opportunity to reply. (Obj. 2–3, ECF 2 III. 1 LEGAL STANDARD 2 Whether to grant class certification is within the discretion of the court. 3 Bateman v. Am. Multi–Cinema, Inc., 623 F.3d 708, 712 (9th Cir. 2010). A cause of 4 action may proceed as a class action if a plaintiff meets the threshold requirements of 5 Rule 23(a) of the Federal Rules of Civil Procedure: numerosity, commonality, 6 typicality, and adequacy of representation. Fed. R. Civ. P. 23(a); Mazza v. Am. Honda 7 Motor Co., 666 F.3d 581, 588 (9th Cir. 2012). In addition, a party seeking class 8 certification must meet one of the three criteria listed in Rule 23(b). Wal–Mart Stores, 9 Inc. v. Dukes, 564 U.S. 338, 345 (2011). “Failure to prove any one of Rule 23’s 10 requirements destroys the alleged class action.” Schwartz v. Upper Deck Co., 183 11 F.R.D. 672, 675 (S.D. Cal. 1999) (citing Rutledge v. Elec. Hose & Rubber Co., 511 12 F.2d 668, 673 (9th Cir. 1975)). 13 Courts should certify a class only if they are “satisfied, after a rigorous 14 analysis,” that Rule 23 prerequisites have been met. Dukes, 564 U.S. at 350–51 15 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982)). A court may not 16 conditionally certify a class “on the basis of a speculative possibility that it may later 17 meet the requirements.” Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir. 1975). Nor 18 may a party rest on mere allegations, but must instead provide facts to satisfy Rule 19 23’s requirements. Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1309 (9th Cir. 20 1977). This showing is not onerous: “a district court need only consider ‘material 21 sufficient to form a reasonable judgment on each Rule 23(a) requirement.’” Sali v. 22 Corona Reg’l Med. Ctr., 909 F.3d 996, 1005 (9th Cir. 2018) (quoting Blackie, 524 23 F.2d at 901). 24 25 26 27 28 No. 33.) However, the Court provided Plaintiffs additional time to reply, thereby mitigating any potential prejudice. (Min. Order, ECF No. 35.) Accordingly, the Court declines to strike the opposition. Plaintiffs’ request to strike is DENIED. (ECF No. 33.) 3 1 IV. DISCUSSION 2 Plaintiffs’ Motion fails at the first step, numerosity. Fed. R. Civ. P. 23(a)(1). 3 Rule 23 requires that the class be “so numerous that joinder of all members is 4 impracticable.” Fed. R. Civ. P. 23(a)(1). “The numerosity requirement is not tied to 5 any fixed numerical threshold—it requires examination of the specific facts of each 6 case . . . .” Rannis v. Recchia, 380 F. App’x 646, 651 (9th Cir. 2010) (internal 7 quotation marks omitted) (noting that a 20-member class, though not precluded, 8 would be “a jurisprudential rarity”). Numerosity may be satisfied “[w]here the exact 9 size of the class is unknown but general knowledge and common sense indicate that it 10 is large.” Turcios v. Carma Labs., Inc., 296 F.R.D. 638, 645 (C.D. Cal. 2014). 11 However, the moving party must still “show some evidence of or reasonably estimate 12 the number of class members. Mere speculation as to satisfaction of this numerosity 13 requirement does not satisfy Rule 23(a)(1).” Schwartz, 183 F.R.D. at 681; see also 14 Siles v. ILGWU Nat’l Ret. Fund, 783 F.2d 923, 930 (9th Cir. 1986) (affirming denial 15 of class certification where plaintiff offered no evidence as to the number of potential 16 class members who suffered harm similar to plaintiff). 17 Although Plaintiffs allege the proposed class numbers in the thousands 18 (Compl. ¶ 80), Plaintiffs argue in their Motion papers that the number is in the 19 hundreds (Mot. 11) or “at least 20–40” potential class members (Reply 4). Plaintiffs 20 contend that numerosity is met because Xaler has “hundreds of reviews from different 21 customers” online at (Mot. 11.) To support this assertion, Plaintiffs 22 submit screenshots of seventy-eight Xaler reviews from (Decl. of 23 Alex Derval (“Derval Decl.”) ¶¶ 20–21, Ex. C (“Reviews”)), ECF Nos. 20, 23.) 24 Plaintiffs argue that hundreds of reviews mean hundreds of Xaler customers, all of 25 whom must have received text messages from Xaler. (Mot. 11.) Plaintiffs contend 26 that common sense dictates at least some of those customers must have received 27 unwanted text messages. (Mot. 11; Reply 5–6.) 28 4 1 Even accepting the authenticity of the website screenshots and assuming for the 2 sake of argument that each review was posted by a different, valid Xaler customer, the 3 Reviews support only that Xaler had seventy-eight customers. The Reviews do not 4 support that any of those customers received unwanted text messages, revoked 5 consent to receive messages, or continued to receive messages after revocation. 6 Evidence of possible class membership is not evidence of actual numerosity. See 7 Siles, 783 F.2d at 930 (affirming denial of certification of class consisting of plan 8 members who were denied benefits where plaintiff presented no evidence as to how 9 many of the 31,000 plan members were denied benefits in circumstances similar to the 10 plaintiff). “The mere fact that there are numerous [Xaler customers], standing alone, 11 is insufficient to show numerosity.” Diacakis v. Comcast Corp., No. C 11-3002 SBA, 12 2013 WL 1878921, at *5 (N.D. Cal. May 3, 2013) (concluding plaintiff failed to meet 13 numerosity requirement based on the fact that there were 649,576 subscribers, where 14 plaintiff did not offer evidence regarding the number of those subscribers who were 15 allegedly misled by defendant). Plaintiffs argue that the class definition also includes 16 non-customers, wrong numbers, and reassigned numbers, but similarly fail to offer 17 any support beyond mere speculation for the existence of potential class members 18 under these criteria. (See Reply 4–5.) 19 Although the Court need only make a “reasonable judgment” based on 20 Plaintiffs’ pleadings and supporting evidence, “[r]easonable judgments cannot be 21 made out of thin air; sufficient information to make such a judgment is a required 22 preliminary step.” Schwartz, 183 F.R.D. at 681 (citing Blackie, 524 F.2d at 901). 23 Plaintiffs have failed to provide sufficient information here and, accordingly, have 24 failed to satisfy the numerosity requirement of Rule 23(a)(1). 25 26 As the Court finds that Plaintiffs have failed to meet the numerosity requirement, it does not address the remaining requirements for class certification. 27 28 5 V. 1 2 3 CONCLUSION For the foregoing reasons, the Court DENIES Plaintiffs’ Motion for Class Certification. (ECF No. 15.) 4 5 IT IS SO ORDERED. 6 7 January 28, 2020 8 9 10 ____________________________________ OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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