The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR CLASS CERTIFICATION [Doc. No. 110]
Presently before the Court is a motion for class certification brought by Plaintiff Ricardo Soto ("Plaintiff") on behalf of a putative class. [Doc. No. 110.] For the reasons below, the Court GRANTS IN PART and DENIES IN PART Plaintiff's motion for class certification.
This is a putative class action lawsuit related to prepaid calling cards. Plaintiff is a permanent resident of the United States from Boliva and has resided in San Diego since 2005.
[Doc. No. 110-17, Declaration of Ricardo Soto ("Soto Decl.") ¶ 2.] Between 2007 and 2009, Plaintiff purchased several "Bonita Senorita" prepaid calling cards that he used to call Bolivia. [Id. ¶¶ 3, 5-7.] Prior to purchasing any of the Bonita Senorita calling cards, Plaintiff reviewed a poster for the calling cards. [Id. ¶ 4.] The poster stated that a $5 Bonita Senorita card would provide 50 minutes of call time to La Paz, Bolivia and that a maintenance fee of $.89 cents would be charged after the first call. [Id.] The face of the cards Plaintiff purchased stated that a weekly maintenance fee of $.69 cents will apply the day after the first call, but that there are no connection charges. [Id. ¶¶ 5-6.] When Plaintiff attempted to use the calling cards to call La Paz, Bolivia, he received much less than 50 minutes, even considering the card's maintenance fees. [Id. ¶¶ 4-7.] Plaintiff alleges that the imposition of fees and charges on users of the Bonita Senorita calling cards without proper disclosures violates California law. [See Doc. No. 40, SAC.]
Defendant Superior Telecommunications, Inc. ("STI") is in the prepaid calling card business and produces the Bonita Senorita calling card, its best seller. [Doc. No. 110-6, Deposition of Saad Pattah I, ("Pattah Depo. I") at 17:8-13, 29:10-11, 37:10-12.] Defendant CCI Communications, LLC ("CCI") is a "carrier" for the Bonita Senorita cards, which means that it provides the telecommunications services for the cards and debits the fees and charges as the cards are used. [Id. at 14:9-17, 112:16-21.] STI produces the posters for the Bonita Senorita cards, and the information contained on the posters is provided by CCI. [Id. at 40:16-18.] Defendant C Global Distributors, Inc. ("C Global") is one of STI's distributors of the Bonita Senorita cards, and it distributes the cards to 7-Eleven convenience stores. [Id. at 55:9-24.]
On December 14, 2009, Plaintiff filed a putative class action lawsuit in San Diego superior court. [Doc. No. 1, Compl.] On January 19, 2010, the Defendants removed the action to this Court pursuant to the Class Action Fairness Act, 28 U.S.C. § 1332(d). [Doc. No. 1, Notice of Removal.] On November 24, 2010, Plaintiff filed a second amended complaint against Defendants STI, C Global, CCI, NetworkIP, LLC ("NetworkIP"), Interactive Communications International, Inc. ("InComm"), 7-Eleven, Inc. ("7-Eleven"), and DHAMI Corporation ("DHAMI") alleging causes of action for: (1) violation of California Business & Professions Code § 17538.9; (2) violation of the California Unfair Competition Law ("UCL"), California Business & Professions Code §§ 17200, et. seq.; (3) violation of the California Consumer Legal Remedies Act ("CLRA"), California Civil Code §§ 1750 et. seq.; (4) conversion; (5) unjust enrichment; and (6) declaratory relief. [Doc. No. 40, SAC.] Defendants NetworkIP, InComm, 7-Eleven, and DHAMI have been dismissed from this action, leaving STI, C Global, and CCI as the only remaining Defendants. [See Doc. Nos. 71, 107, 109.]
By the present motion, Plaintiff requests that the Court certify a class pursuant to Federal Rule of Civil Procedure 23 and California Civil Code § 1781(b) ("the Class") defined as:
All California residents who purchased and used a Bonita Senorita prepaid calling card in California from December 15, 2005 through the date of trial. Excluded from the Class are current and former Defendants, any person, firm, trust, corporation, officer, director, or other individual or entity in which Defendants have a controlling interest, or which are related to or affiliated with Defendants, and the legal representatives, heirs, successors-in-interest or assigns of any such excluded parties. Also excluded from the Class are Plaintiff's counsel and all judicial officers responsible for any decisions in this matter. [Doc. No. 110-1 at 2.] Plaintiff only seeks certification on his claims for violation of California Business & Professions Code § 17538.9, violation of the UCL, violation of the CLRA against STI, conversion, and unjust enrichment. [Id. at 9-10.] Only Defendant STI opposes Plaintiff's motion for class certification. [Doc. No. 111.]
I. Legal Standard for Class Certification under Rule 23
Rule 23 of the Federal Rules of Civil Procedure governs the certification of a class in federal court. As a threshold matter, the Court may certify a class only if plaintiffs meet the requirements of Rule 23(a):
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law 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.
In addition, the plaintiff must demonstrate that one of the three conditions set forth in Rule 23(b) is met. Here, Plaintiff seeks certification under Rule 23(b)(3), [Doc. No. 110-1 at 15-17], which requires a finding "that the question of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." In considering whether certification is appropriate under Rule 23(b)(3), the Court should consider:
(A) the class members' interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in ...