United States District Court, S.D. California
CARLOS VICTORINO and ADAM TAVITIAN, individually and on behalf of a class of similarly situated individuals, Plaintiff,
FCA U.S. LLC, a Delaware limited liability company, Defendant.
ORDER DENYING DEFENDANT'S MOTION TO DENY CLASS
CERTIFICATION [DKT. NO. 58.]
GONZALO P. CURIEL UNITED STATES DISTRICT JUDGE.
the Court is Defendant's motion to deny class
certification filed on May 19, 2017. (Dkt. No. 58.)
Plaintiffs filed an opposition on June 16, 2017. (Dkt. No.
103.) On June 30, 2017, Defendant filed a reply. (Dkt. No.
105.) After a review of the briefs, the applicable law and
supporting documentation, the Court DENIES Defendant's
motion to deny class certification.
Carlos Victorino (“Victorino”) and Adam Tavitian
“Defendants”) bring this purported first amended
class action complaint based on defects in the 2013-2016
Dodge Dart vehicles equipped with a Fiat C635 manual
transmission that cause the vehicles' clutches to fail
and stick to the floor. (Dkt. No. 104, FAC ¶¶ 1,
2.) As a result, the vehicles equipped with the defective
manual transmission “exhibit stalling, failure to
accelerate, and premature failure of the Clutch System's
components, including the clutch master cylinder and
reservoir hose, clutch slave cylinder and release bearing,
clutch disc, pressure plate, and flywheel . . . .”
(Id. ¶ 2.) Defendant FCA U.S. LLC
(“Defendant”) designs, manufactures, markets,
distributes, services, repairs, sells and leases passenger
vehicles, including Plaintiffs' vehicles. (Id.
February 13, 2017, defense counsel emailed Plaintiffs'
attorneys, Jordan Lurie and Tarek Zohdy, with the subject
line “Settlement” where Defendant offered to pay
the two plaintiffs in the DeCoteau case and the two
plaintiffs in the Victorino case $10, 000 each for a
total of $40, 000 total. The offer was contingent on
acceptance by all four plaintiffs in both cases. (Dkt. No.
105-1, Wisniewski Decl., Ex. D.) The settlement offer was
made in response to a $10, 000 demand for an individual
settlement made by Plaintiffs' counsel in the
DeCoteau . (Id., Exs. A-C.) Defendant
agreed to accept the demand made in DeCoteau
contingent upon acceptance of the settlement by all four
plaintiffs in DeCoteau and this case.
Plaintiffs' counsel never responded to the offer, it was
withdrawn over a month later on March 10, 2017 due the start
of discovery. (Dkt. No. 58-2, Wisniewski Decl. ¶ 7.)
When Tavitian and Victorino were deposed in April 2017, they
indicated they were not aware of a settlement offer made by
Defendant to resolve their claims (Dkt. No. 58-2, Wisniewski
Decl., Ex A, Tavitian Depo. at 289:23-290:5; 290:11-16; Ex.
B., Victorino Depo. at 165:14-24; 166:11-24.)
instant motion, Defendant moves to deny class certification
arguing that the adequacy requirement for class certification
pursuant to Federal Rule of Civil Procedure
(“Rule”) 23(a)(4) cannot be satisfied because
Plaintiffs' counsel violated their ethical obligation
under California Rules of Professional Conduct 3-510 by
failing to communicate to Plaintiffs the settlement offer
made by Defendant. It contends that Plaintiffs'
counsel's failure to communicate the settlement offer
demonstrates they will act in the same unethical manner
throughout the litigation. In response, Plaintiffs argue that
their counsel had no obligation to communicate
Defendant's settlement offer to them because it was not a
valid settlement offer as it was made contingent upon
acceptance of the settlement by plaintiffs in a separate,
distinct case in DeCoteau.
“does not preclude a defendant from bringing a
‘preemptive' motion to deny certification.”
Vinole v. Countrywide Home Loans, Inc., 571 F.3d
935, 939 (9th Cir. 2009); Fed.R.Civ.P. 23(c)(1)(A) (a court
must determine whether to certify a class action “[a]t
an early practicable time.”). Rule 23(a) establishes
four requirements for class certification: (1) numerosity,
(2) commonality, (3) typicality, and (4) adequacy of
representation. Fed.R.Civ.P. 23(a). Rule 23(a)(4) requires
“that the representative parties will fairly and
adequately protect the interests of the class.”
Id. Although Defendant filed the motion to deny
certification, Plaintiffs have the burden to establish that
the class certification requirements under Rule 23 have been
met. Spagnola v. Chubb Corp., 264 F.R.D. 76, 92
(S.D.N.Y. 2010) (“Even though the issue of class
certification [ ] comes before the Court on Defendants'
motion, the burden remains on Plaintiffs to prove that each
of the required elements for class certification under Rule
23 has been satisfied.”); Zulewski v. Hershey
Co., No. CV 11-5117-KAW, 2013 WL 1748054, at *1 (N.D.
Cal. Apr. 23, 2013) (same).
analyzing whether Rule 23(a)(4) has been met, the Court must
ask two questions: “(1) do the named plaintiffs and
their counsel have any conflicts of interest with other class
members and (2) will the named plaintiffs and their counsel
prosecute the action vigorously on behalf of the
class?” Evon v. Law Offices of Sidney Mickell,
688 F.3d 1015, 1031 (2012) (quoting Hanlon v. Chrysler
Corp., 150 F.3d 1011, 1020 (9th Cir. 1998)). The
adequacy of counsel is also considered under Rule 23(g).
See Fed. R. Civ. P. 23(g); Baumann v. Chase Inv.
Servs. Corp., 747 F.3d 1117, 1122-23 (9th Cir. 2014)
(noting that “named plaintiff's and class
counsel's ability to fairly and adequately represent
unnamed [plaintiffs]” are “critical requirements
in federal class actions under Rules 23(a)(4) and
2003, Congress added Rule 23(g) to guide the court's
inquiry in the adequacy of proposed class counsel and does
not introduce a new element into the class certification
process. Fed.R.Civ.P. 23(g) advisory committee's note
(2003) (“Rule 23(a)(4) will continue to call for
scrutiny of the proposed class representative, while
[subdivision (g) ] will guide the court in assessing proposed
class counsel as part of the certification decision.”)
“Plaintiffs' failure to show adequacy of counsel
under Rule 23(g) is effectively a failure to meet the
adequate representation requirement of Rule 23(a)(4) for
class certification.” Varela v. Indus. Prof'l
and Techical Workers, 2009 WL 10670788, at *3 (C.D. Cal.
Oct. 29, 2009).
Under Rule 23(g)(1), the court
(A) must consider:
(i) the work counsel has done in identifying or investigating
potential claims in the action;
(ii) counsel's experience in handling class actions,
other complex litigation, and the types of claims ...