Motion for Summary Judgment & Motion for Class Certification (Judge Sunil Kulkarni)


Case Name:    Peggy Irene Leedeman v. Midland Credit Management, Inc., et al.

Case No.:        19CV354554

This is a putative class action alleging unlawful debt collection practices by Defendant Midland Credit Management, Inc. (“MCM”) in connection with consumer credit accounts.

Before the Court are: (1) MCM’s motion for summary judgment; (2) Plaintiff’s motion for class certification; and (3) MCM’s motion to strike the declaration and supplemental declaration of Plaintiff’s expert Patricia Fisher.  All of these motions are opposed.

As discussed below, the Court DENIES MCM’s motion for summary judgment and GRANTS Plaintiff’s motion for class certification.  Since neither of these rulings relies on Ms. Fisher’s declarations, MCM’s motion to strike is MOOT.

  1. BACKGROUND
  2. Factual

According to the complaint, Plaintiff is alleged to have incurred debt associated with a consumer credit account issued by Capital One Bank (USA), N.A.  (First Amended Class Action Complaint (“FAC”), ¶ 12.)  Plaintiff denies that she owes any debt on this account.  (Ibid.)  On or about March 15, 2019, Capital One sold the alleged debt to Defendant for collection.  (Id. at ¶ 14.)

MCM sent Plaintiff an initial collection letter on April 10, 2019, which included an insert.  (FAC, ¶¶ 16–19.)  Plaintiff alleges that the communication (really, the insert) violated Civil Code section 1788.52, subdivision (d)(1) because it failed to provide the true name of the debt buyer and was printed in less than 12-point type.  (Id. at ¶ 20.)  This supposedly is Defendant’s standard policy when sending initial collection communications, and Plaintiff seeks to bring a class action on behalf of consumers who received such communications from MCM in connection with debt originally owed to Capital One.  (Id. at ¶¶ 23–26.)  Plaintiff further alleges that she is a senior citizen entitled to treble damages under Civil Code section 3345.  (Id. at ¶ 22.)

Plaintiff filed suit against MCM on September 12, 2019, asserting a single cause of action under the California Fair Debt Buying Practices Act, Civil Code sections 1788.50–1788.64 (“CFDBPA”).  The FAC was filed per a stipulated order entered on February 11, 2021.

  1. Procedural

MCM moved for summary judgment on September 2, 2021, on the grounds that its initial communication to Plaintiff complied with the CFDBPA by both accurately identifying MCM as the debt buyer and being printed in Calibri 12-point type.  Alternatively, MCM contends that any mistake in identifying the debt buyer was a “bona fide error.”  Plaintiff filed an opposition on October 21, supported by a declaration by her counsel Fred W. Schwinn.  Mr. Schwinn declared that he had personally measured the type size used in MCM’s communication and determined that it was 10-point type.  Meanwhile, on September 30, Plaintiff filed a motion to certify the class.

 

MCM filed an ex parte application for an order continuing the hearings on both motions, modifying the briefing schedules, and scheduling a hearing on its contemplated motion to disqualify Mr. Schwinn and his firm, or else strike his declaration.  Following a hearing and discussion with the parties, the Court directed Plaintiff to file any expert declaration concerning font size (and likely withdraw the disputed portions of Mr. Schwinn’s declaration) by December 17, 2021, at which point MCM could depose the expert.  Plaintiff filed a notice withdrawing portions of Mr. Schwinn’s declaration, along with an initial declaration by Ms. Fisher, on November 1, and she filed a supplemental declaration by Ms. Fisher on February 3, 2022.  On April 8, 2022, the Court entered a stipulated order continuing the hearings on the motions for summary judgment and for class certification to August 11, 2022 and establishing a briefing schedule.  The stipulated order also established a briefing schedule for MCM’s motion to strike Ms. Fisher’s declarations, to be heard on the same date as the other motions.

 

The parties have now fully briefed all three motions, including supplemental oppositions to the motion for summary judgment and motion for class certification.  The Court has reviewed and considered all of this briefing.

 

  1. MOTION FOR SUMMARY JUDGMENT

 

Section 1788.52, subdivision (d)(1) of the CFDBPA[1] provides:

 

A debt buyer shall include with its first written communication with the debtor in no smaller than 12-point type, a separate prominent notice that provides:

 

You may request records showing the following: (1) that [insert name of debt buyer] has the right to seek collection of the debt; (2) the debt balance, including an explanation of any interest charges and additional fees; (3) the date of default or the date of the last payment; (4) the name of the charge-off creditor and the account number associated with the debt; (5) the name and last known address of the debtor as it appeared in the charge-off creditor’s or debt buyer’s records prior to the sale of the debt, as appropriate; and (6) the names of all persons or entities that have purchased the debt. You may also request from us a copy of the contract or other document evidencing your agreement to the debt.

 

“A request for these records may be addressed to: [insert debt buyer’s active mailing address and email address, if applicable].”

 

(Italics added.)

 

As previously noted, Plaintiff alleges that MCM’s initial communication both failed to provide the true name of the debt buyer and was printed in less than 12-point type.  MCM moves for summary judgment on the ground that both theories lack merit, and MCM has a bona fide error defense to the “debt buyer” theory.  The Court will address each theory in turn.

 

  1. Legal Standard

 

“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action.  …  The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.”  (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; see also Code Civ. Proc., § 437c, subd. (p)(2).)

 

This standard provides for a shifting burden of production; that is, the burden to make a prima facie showing of evidence sufficient to support the position of the party in question.  (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850–851 (Atlantic Richfield).)  The burden of persuasion remains with the moving party and is shaped by the ultimate burden of proof at trial.  (Ibid.)  “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Ibid.)  The opposing party must produce substantial responsive evidence that would support such a finding; evidence that gives rise to no more than speculation is insufficient.  (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162–163.)

 

The traditional method for a defendant to meet its burden on summary judgment is by “negat[ing] a necessary element of the plaintiff’s case” or establishing a defense with its own evidence.  (Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 334.)  The defendant may also demonstrate that an essential element of plaintiff’s claim cannot be established by “present[ing] evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence-as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.”  (Atlantic Richfieldsupra, 25 Cal.4th at p. 855.)

 

On summary judgment, “the moving party’s declarations must be strictly construed and the opposing party’s declaration liberally construed.”  (Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 717 (Hepp); see also Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64 [the evidence is viewed in the light most favorable to the opposing plaintiff; the court must “liberally construe plaintiff’s evidentiary submissions and strictly scrutinize defendant’s own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff’s favor”].)  Summary judgment may not be granted by the court based on inferences reasonably deducible from the papers submitted, if such inferences are contradicted by others which raise a triable issue of fact.  (Heppsupra, 86 Cal.App.3d at pp. 717–718.)

 

  1. Debt Buyer’s Name

 

  1. Material Facts

 

The following material facts are undisputed.  MCM is a San Diego-based debt servicer and buyer, which has been the sole owner of Plaintiff’s debt at all relevant times.  (Sep. State. of Undisputed Facts (“SS”) & Pl.’s Resp., nos. 4, 6.)  Non-party Midland Funding, LLC is a corporate affiliate of MCM and is also a debt buyer, but does not service its own accounts.  (Id., nos. 8 & 9.)  Rather, MCM is the servicer for Midland Funding portfolios.  (Id., no. 11.)

 

During the relevant period, MCM contracted with Nahan Printing, Inc. to be its third-party mail vendor.  (SS & Pl.’s Resp., no. 19.)  Nahan is responsible for producing, packaging, and mailing correspondence on accounts MCM services on its own behalf—including Plaintiff’s—as well as accounts that MCM services on behalf of Midland Funding.  (Id., no. 20.)

 

In early 2014, MCM created an insert to use with California accounts subject to the CFDBPA.  (SS & Pl.’s Resp., no. 21.)  This insert included all required disclosures outlined in section 1788.52, subdivision (d)(1) and was sent to consumers in a separate prominent notice in the same envelope as their initial collection letter.  (Id., no. 23 [disputed only to the extent that Plaintiff asserts the wrong type size was used and the wrong entity was identified as the debt buyer].)  MCM set up automated processes to ensure the inserts are used when they should be, including for initial communications sent to California, and provided Nahan with instructions as to when to include the insert, which Nahan documented on a “run list” that MCM reviewed.  (Id., nos. 25–27, 30–31.)  Nahan provided MCM with digital confirmation of its plans to include the insert, and MCM and Nahan conducted a “live insertion audit” to ensure that California validation letters would receive the insert.  (Id., nos. 28–29; see also nos. 33–35 [disputed only on the basis that “the nature of the violation at issue (e.g., 39,526 letters sent) raises an inference” that MCM and Nahan did not conduct an audit].)  At the time of this “pre-launch” physical inspection and each inspection since, Nahan’s equipment was and has been functioning properly, meaning that it correctly identified accounts that were subject to the CFDBPA, and then correctly included the insert in the same envelope as the communication.  (Id., no. 36 [disputed only to the extent that Plaintiff asserts the wrong type size was used and the wrong entity was identified as the debt buyer].)

 

To ensure that the insert sufficiently captured all of section 1788.52(d)(1)’s requirements, MCM had its legal and compliance team review, and approve of, the insert before ordering inventory of the insert and instructing MCM’s letter vendor to begin using it.  (SS & Pl.’s Resp., no. 44 [disputed only to the extent that Plaintiff asserts the wrong type size was used and the wrong entity was identified as the debt buyer].)  MCM reviews any changes to mailings for legal compliance (see id., nos. 46–53 [describing review process which, again, is disputed only to the extent that Plaintiff asserts it resulted in errors]), and “MCM’s legal and compliance team regularly ensures that the Insert’s contents are consistent with the CFDBPA’s requirements” (id., no. 51 [disputed only to the extent Plaintiff asserts that MCM missed errors in the insert]).

 

Depending on whether MCM or Midland Funding is the debt buyer, MCM revises and updates the insert to correspond with the statute where it states: “insert name of debt buyer.”  (SS & Pl.’s Resp., no. 56 [disputed only to the extent that the correct buyer was not identified here].)  These updates are hard coded into both MCM and Midland Funding versions of the insert, and MCM then orders pre-printed inserts from Nahan for use on applicable accounts.  (Id., nos. 57–58 [same].)

 

Despite these procedures, from October 9, 2018 to October 21, 2019, for certain portfolios owned by MCM, the insert erroneously listed Midland Funding LLC as the debt buyer.  (SS & Pl.’s Resp., no. 64.)  This error occurred around the same time that MCM first began purchasing portfolios of charged-off consumer debt itself—before, it only serviced portfolios owned by its affiliates, primarily Midland Funding.  (Id., nos. 65, 66.)

 

With respect to Plaintiff, the insert stated in relevant part:

 

“We are required under state law to notify consumers of the following rights.  Please refer to all enclosed materials.

 

You may request records showing the following: (1) that Midland Funding LLC has the right to seek collection of the debt; (2) the debt balance, including an explanation of any interest charges and additional fees; (3) the date of default or the date of the last payment; (4) the name of the charge-off creditor and the account number associated with the debt; (5) the name and last known address of the debtor as it appeared in the charge-off creditor’s or debt buyer’s records prior to the sale of the debt, as appropriate; and (6) the names of all persons or entities that have purchased the debt. You may also request from us a copy of the contract or other document evidencing your agreement to the debt.

 

A request for these records may be addressed to: 2365 Northside Drive, Suite 300, San Diego, CA 92108,”

 

which was the address for both MCM and Midland Funding.  (SS & Pl.’s Resp., nos. 40, 42.)  Thus, MCM did send Plaintiff a version of the insert that mistakenly identified “Midland Funding LLC” as the debt buyer.  (Id., no. 71.)  But if Plaintiff had sent a request for records to the address provided on the insert, MCM would have responded.  (Id., no. 43; see also id., nos. 60–63 [MCM and Midland Funding always used the same address and any consumer requests to that address would have been received and processed by MCM].)  And the collection letter itself correctly identified MCM as the debt buyer—multiple times.  (See Appendix of Evidence, Ex. I.)

 

It is undisputed that the error on the insert was inadvertent.  (SS & Pl.’s Resp., no. 67 [undisputed that “MCM inadvertently ordered Inserts from Nahan identifying Midland Funding as the debt buyer, rather than MCM”].)  Once MCM discovered the inadvertent error, it immediately corrected it.  (Id., no. 68.)

 

  1. Violation

 

It is clear that MCM technically violated the CFDBPA’s requirement that a first written communication be provided with “a separate prominent notice” that states the name of the debt buyer along with the other required information.  This is true even though the initial collection letter itself correctly identified the debt buyer.  As MCM acknowledges, the CFDBPA, as with related consumer protection statutes like the federal Fair Debt Collection Practices Act (“FDCPA”) and California’s Rosenthal Fair Debt Collection Practices Act (“Rosenthal Act”), is a “strict liability” statute subject to a “bona fide error” defense.  (See Reichert v. Nat’l Credit Sys. (9th Cir. 2008) 531 F.3d 1002, 1006 (Reichert) [discussing FDCPA].)

 

MCM does not really dispute that the error with the debt buyer’s name displayed on the insert was a violation, but argues the violation “is hyper-technical and de minimis.”  On “technical” violations, MCM cites authorities interpreting the FDCPA’s prohibition of “any false, deceptive, or misleading representation or means in connection with the collection of any debt.”  (15 U.S.C. § 1692e.)  But this general prohibition, which is analyzed under an objective standard asking whether a “reasonable and functional” “least sophisticated debtor”  is likely to be mislead (Stimpson v. Midland Credit Mgmt. (9th Cir. 2019) 944 F.3d 1190, 1196), is not akin to the very specific and unqualified requirement at issue here.  MCM’s authorities simply do not apply.  On “de minimis” violations, MCM notes that “some courts have refused to award any statutory damages for technical or de minimis violations” in FDCPA actions.  (Borillo v. Legal Recovery Law Offices, Inc. (N.D.Cal. May 5, 2017, No. 5:16-cv-05508-HRL) 2017 U.S.Dist.LEXIS 69306, at *11.)  But unlike the FDCPA, which does not establish minimum statutory damages, the CFDBPA provides that the successful plaintiff is entitled to minimum statutory damages of $100, plus costs and attorney fees.  (See Civ. Code § 1788.62, subds. (a) & (c).)

 

In short, MCM provides no support for its position that the CFDBPA violation at issue here is too small or “technical” to count.  The statute requires a specific, “separate prominent notice” that correctly identifies the debt buyer, and MCM’s insert failed to accomplish that here.

 

  1. Bona Fide Error

 

With regard to “debt buyer” violation, then, MCM’s motion turns on whether there are triable issues of fact concerning the bona fide error defense.  The CFDBPA provides that “[a] debt buyer shall have no civil liability under this section if the debt buyer shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error, and occurred notwithstanding the maintenance of procedures reasonably adopted to avoid any error.”  (Civ. Code § 1788.62, subd. (e).)  This “bona fide error” defense is almost identically worded to those set forth in the FDCPA and Rosenthal Act, and the parties agree that authorities construing these related statutes should govern the analysis here.[2]

 

Here, there is no dispute that the error in the debt buyer’s name was unintentional and resulted from a bona fide error.  But the bona fide error defense also requires MCM to prove that it employed procedures reasonably adopted to avoid errors.  As explained by authorities construing the FDCPA’s similar defense, “the procedures component of the bona fide error defense involves a two-step inquiry: first, whether the debt collector ‘maintained’–i.e., actually employed or implemented–procedures to avoid errors; and, second, whether the procedures were ‘reasonably adapted’ to avoid the specific error at issue.”   (Reichert, supra, 531 F.3d at p. 1006, internal citation and quotation marks omitted.)  Critically, “the procedures that support a valid bona fide error defense must be reasonably adapted to avoid the specific error at issue.”  (McCollough v. Johnson, Rodenburg & Lauinger, LLC (9th Cir. 2011) 637 F.3d 939, 948 (McCollough), italics added, internal citation and quotations marks omitted.)

 

As summarized above, MCM submits plenty of evidence that it has adopted procedures to avoid errors in its initial communications to debtors, both in general and with regard to issues like making sure California debtors received an insert intended to provide the notice required by the CFDBPA.  But the issue is whether MCM adopted procedures tailored to avoiding the specific error at issue here—namely, the erroneous identification of its affiliate as the debt buyer.

 

Such evidence is lacking.  MCM urges that it took extensive measures to ensure inserts with the required notice were provided to debtors when the CFDBPA became effective in 2014, and that it maintains procedures to ensure that any changes to the law’s requirements are incorporated into updated versions of the insert.  But a change in the CFDBPA is not what led to the violation here—rather, it was a change in MCM’s own past practice when it began to purchase some debts in its own name versus only servicing debts owned by its affiliate.

 

The evidence about the procedures MCM adopted to avoid errors in the debt buyer’s name in light of that change is entirely vague.  First of all, MCM never explains how it was that this error occurred and admittedly went undetected in tens of thousands of mailings for over a year.  (See SS & Pl.’s Resp., no. 64.)  It merely submits that it “updates” the insert to provide the correct debt buyer’s name, orders pre-printed inserts from Nahan “reflecting such change for use on applicable accounts,” and “provides Nahan with a run list which defines which Insert should be used with which communications.”  (Id., nos. 56–59.)  This establishes that MCM at least attempts to update the insert to reflect the correct debt buyer’s name, but says nothing at all about whether it maintains any procedures to avoid errors in this regard.

 

MCM’s own authorities illustrate how MCM’s showing falls short.  In Reichert, the debt collector’s declarant stated that the collector relied on information provided by the creditor, which had never provided incorrect information in the past.  (Reichert, supra, 531 F.3d at p. 1007.)  But Reichert reasoned that “[t]he fact that the creditor had not made errors in calculating amounts due does not speak to the problem here, the addition of the attorney’s fee.”  (Ibid.)  And in McCollough, the debt collector submitted evidence that it utilized a system to flag potential statute of limitations problems—which worked in that case, prompting the debt collector to request “an instrument in writing to extend” the limitations period from the debtholder.  (McCollough, supra, 637 F.3d at p. 948.)  This was when the error occurred, because the debt collector relied “without verification” on the debtholder’s incorrect representation that the debtor had made a partial payment extending the statute, and overlooked contrary information in its file.  (Ibid.)  The debtor “thus presented no evidence of procedures designed to avoid the specific errors that led to its filing and maintenance of a time-barred collection suit” against the debtor, and its bona fide error defense failed as a matter of law.  (Ibid., italics added.)

 

As Reichert explains, “[if]f the bona fide error defense is to have any meaning in the context of a strict liability statute, then a showing of ‘procedures reasonably adapted to avoid any such error’ must require more than a mere assertion to that effect.  The procedures themselves must be explained, along with the manner in which they were adapted to avoid the error.”  (Reichert, supra, 531 F.3d at p. 1007.)  Here, as in Reichert and McCollough, MCM submits only vague declarations about its procedures concerning the specific error at issue, along with more specific evidence about procedures intended to avoid different errors.  This does not suffice.  MCM fails to meet its initial burden to show that the bona fide error defense applies.

 

  1. Conclusion

 

Because MCM violated the CFDBPA by failing to include the correct debt buyer’s name in the “separate prominent notice” required by the statute—and fails to meet its initial burden to establish that it maintained procedures reasonably adopted to avoid that specific error as required to support a bona fide error defense—MCM fails to meet its initial burden on summary judgment as to this violation.

 

The Court therefore DENIES MCM’s motion for summary judgment, without the need to address Plaintiff’s alternative “type size” theory and MCM’s motion to strike evidence associated with that theory—at least in the context of this motion.

 

III.      MOTION FOR CLASS CERTIFICATION

 

Plaintiff moves to certify a class of:

 

All persons with addresses in California to whom MIDLAND CREDIT MANAGEMENT, INC., sent, or caused to be sent, an initial written communication in the form of Exhibits “1” and “2” to the First Amended Class Action Complaint for Statutory Damages herein in an attempt to collect a charged-off consumer debt originally owed to Capital One Bank (USA), N.A., which was sold or resold to MIDLAND CREDIT MANAGEMENT, INC, on or after January 1, 2014, which were not returned as 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.

 

MCM opposes Plaintiff’s motion, urging the proposed class is overbroad, the class is not ascertainable, common issues of law and fact do not predominate, Ms. Leedeman is not an adequate representative and her claim is not typical of the class, and proceeding on a class basis is not manageable or superior.

 

  1. Legal Standard

 

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 (Sav-on Drug Stores).)

 

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, 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.)  The court must examine all the evidence submitted in support of and in opposition to the motion “in light of the plaintiffs’ theory of recovery.”  (Department of Fish and Game v. Superior Court (2011) 197 Cal.App.4th 1323, 1349.)  The evidence is considered “together”: there is no burden-shifting as in other contexts.  (Ibid.)

 

  1. Numerous and Ascertainable Class

 

A class is ascertainable “when it is defined in terms of objective characteristics and common transactional facts that make the ultimate identification of class members possible when that identification becomes necessary.”  (Noel v. Thrifty Payless, Inc. (2019) 7 Cal.5th 955, 980 (Noel).)  A class definition satisfying these requirements

 

puts members of the class on notice that their rights may be adjudicated in the proceeding, so they must decide whether to intervene, opt out, or do nothing and live with the consequences.  This kind of class definition also advances due process by supplying a concrete basis for determining who will and will not be bound by (or benefit from) any judgment.

 

(Noel, supra, 7 Cal.5th at p. 980, citation omitted.)

 

“As a rule, a representative plaintiff in a class action need not introduce evidence establishing how notice of the action will be communicated to individual class members in order to show an ascertainable class.”  (Noel, supra, 7 Cal.5th at p. 984.)  Still, it has long been held that “[c]lass members are ‘ascertainable’ where they may be readily identified … by reference to official records.”  (Rose v. City of Hayward (1981) 126 Cal. App. 3d 926, 932, disapproved of on another ground by Noel, supra, 7 Cal.5th 955; see also Cohen v. DIRECTV, Inc. (2009) 178 Cal.App.4th 966, 975-976 [“The defined class of all HD Package subscribers is precise, with objective characteristics and transactional parameters, and can be determined by DIRECTV’s own account records. No more is needed.”].)

 

Here, members of the class are easily identified from MCM’s records.  The proposed class is composed of 39,526 individuals per MCM’s own estimate, and is defined based on objective characteristics.  The Court accordingly finds that the class is numerous and ascertainable.

 

MCM contends that the class definition is overbroad because it would include individuals who received inserts that correctly identified the debt buyer.  Not so.  The class, as proposed by Plaintiff, actually is defined to include only those individuals whose debt was sold to MCM, but who received an insert like the one attached to the FAC, which identifies Midland Funding LLC as the debt buyer.  As in its summary judgment motion, MCM argues that Plaintiff’s “debt buyer” theory fails on the merits because the letter included with the insert correctly identifies MCM as the debt buyer.  But this merits argument is not a basis to deny class certification.  (And the Court disagrees with it anyway, as already discussed.)

 

MCM further contends that it is impossible to ascertain from its records whether putative class members owed “consumer debt” as required by the CFDBPA and the proposed class definition.  It argues that class members could have used their personal credit cards for business expenses or other charges that would not qualify as “consumer debt.”  However, numerous authorities addressing proposed FDCPA classes—which MCM urges the Court to apply—have rejected this argument.  The Court agrees with these authorities, which reason that individuals’ use of consumer credit cards issued in their own names is prima facie evidence of use for personal or household purposes (see Butto v. Collecto Inc. (E.D.N.Y. 2013) 290 F.R.D. 372, 382–383), and to the extent anyone in the universe of potential class members used their accounts primarily for non-qualifying purposes, the class can be narrowed “by use of an appropriately drafted notice or by requiring submission of credit card statements to certify the nature of the financial obligation” (Gold v. Midland Credit Mgmt. (N.D.Cal. 2014) 306 F.R.D. 623, 629).  Fundamentally, “the need to show that the transactions involved in a particular case are consumer transactions is inherent in every FDCPA” and CFDBPA “class action. If that need alone precluded certification, there would be no class actions under” these statutes—which specifically provide for them.  (Wilkerson v. Bowman (N.D. Ill. 2001) 200 F.R.D. 605, 609.)  The Court agrees with “[t]he majority of courts” that “have concluded that factual questions related to personal use do not prevent the certification of consumer protection class actions” (Bitzko v. Weltman, Weinberg & Reis Co., LPA (N.D.N.Y. Sep. 23, 2019, No. 1:17-CV-00458 (BKS/DJS)) 2019 U.S.Dist.LEXIS 161495, at *38, internal citation and quotation marks omitted), and respectfully disagrees with the few contrary authorities cited by MCM.

 

The Court finds that the proposed class is numerous, ascertainable, and appropriately defined.

 

  1. Community of Interest

 

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 Storessupra, 34 Cal.4th at p. 326.)  MCM contends that none of these factors are satisfied here.

 

  1. Predominant Questions of Law or Fact

 

For the first community of interest factor, “[i]n order to determine whether common questions of fact predominate the trial court must examine the issues framed by the pleadings and the law applicable to the causes of action alleged.”  (Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal.App.4th 908, 916 (Hicks).)  The court must also give due weight to any evidence of a conflict of interest among the proposed class members.  (See J.P. Morgan & Co., Inc. v. Superior Court (2003) 113 Cal.App.4th 195, 215.)  The ultimate question is 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.  (Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1104–1105 (Lockheed Martin).)  “As a general rule if the defendant’s liability can be determined by facts common to all members of the class, a class will be certified even if the members must individually prove their damages.”  (Hicks, supra, 89 Cal.App.4th at p. 916.)

 

Here, there is no dispute that class members received initial collection letters and inserts with the same content formatted in the same manner.  MCM’s liability will turn on common issues including whether the letters/inserts violated the type size and debt buyer identification requirements of Civil Code section 1788.52, subdivision (d)(1); whether Defendant is a debt buyer and whether class members are debtors for purposes of the statute; whether the bona fide error defense applies; and the penalties that may be appropriate considering factors including “the frequency and persistence of noncompliance by the debt buyer, the nature of the noncompliance, the resources of the debt buyer, and the number of persons adversely affected” (Civ. Code, § 1788.62, subd. (d)).  Given these circumstances, common questions of law and fact predominate in this action.

 

In opposition, MCM lists a number of asserted “individual factual issues,” without providing any further explanation or supporting authorities.  The purported individual issues are:

 

  • whether an obligation falls within the scope of “charged-off consumer debt” subject to the CFDBPA;
  • who has the right to collect the obligation;
  • whether the putative class member recalls receiving an Insert;
  • whether the Insert correctly identifies the debt buyer;
  • whether the recipient of the Insert read the Insert;
  • whether the recipient of the Insert took any action following receipt of the Insert;
  • whether the Insert confused the putative class member;
  • whether identification of the debt buyer in the Insert influenced the putative class member’s response in any way;
  • if the identification of the debt buyer in the Insert influenced the putative class member’s response, how did it do so;
  • the type size of the Insert;
  • whether that putative class member relied on the name of the debt buyer in the Insert to his or her detriment; and
  • whether the putative class member is represented by counsel.[3]

 

Most of these asserted issues appear to be of very limited relevance—if they are relevant at all—and none of MCM’s assertions is supported by evidence suggesting that the facts will actually vary from class member to class member.  The Court does not think that these asserted issues raise any potential conflict among class members or present individual issues that even come close to outweighing the common issues identified above.

 

  1. Adequacy and Typicality

 

“Adequacy of representation depends on whether the plaintiff’s attorney is qualified to conduct the proposed litigation and the plaintiff’s interests are not antagonistic to the interests of the class.”  (McGhee v. Bank of America (1976) 60 Cal.App.3d 442, 450.)  The fact that a class representative does not personally incur all of the damages suffered by each different class member does not necessarily preclude the representative from providing adequate representation to the class.  (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 238, disapproved of on another ground by Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260.)  Only a conflict that goes to the very subject matter of the litigation will defeat a party’s claim of representative status.  (Ibid.)

 

“Although the questions whether a plaintiff has claims typical of the class and will be able to adequately represent the class members are related, they are not synonymous.”  (Martinez v. Joe’s Crab Shack Holdings (2014) 231 Cal.App.4th 362, 375.)  “The test of typicality is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.”  (Ibid., quoting Seastrom v. Neways, Inc. (2007) 149 Cal.App.4th 1496, 1502.)

 

MCM contends that Plaintiff is not an adequate or typical class representative due to her lack of knowledge about this case and similar litigation brought on her behalf by counsel.  These arguments pertain to adequacy rather than typicality.

 

“[T]he test for adequacy of representation is merely whether or not plaintiffs have demonstrated a willingness and vigor to prosecute the action, whether they have any disabling conflicts going to the heart of the controversy, and whether they have qualified counsel.”  (In re Adobe Systems, Inc. Securities Litigation (N.D. Cal. 1991) 139 F.R.D. 150, 156 (Adobe).)  “The reality of complex cases … is that clients must defer a great amount of discretion to their lawyers.”  (Ibid.)  Thus, “[t]he threshold knowledge required of the class representatives is low.”  (DuFour v. Be LLC (N.D. Cal. 2013) 291 F.R.D. 413, 419.)  It is adequate that the class representatives “appear familiar with the basic outline of [the] action in that they understand the gravamen of the claims. It is not necessary that they be intimately familiar with every factual and legal issue in the case.”  (Adobe, supra, 139 F.R.D. at p. 156; see also Espejo v. The Copley Press, Inc. (2017) 13 Cal.App.5th 329, 354–355 [no evidence plaintiff was inadequate where he “testified that he had read the complaint, and that after he spoke to plaintiffs’ counsel about the lawsuit, he decided he wanted to be a part of it”]; Surowitz v. Hilton Hotels Corp.(1966) 383 U.S. 363, 372 [rejecting proposition that plaintiff “who is uneducated generally and illiterate in economic matters, could never under any circumstances be a plaintiff in a derivative suit brought in the federal courts to protect her stock interests”].)  In addition, a class representative assumes a fiduciary responsibility to absent class members and must understand this responsibility and be willing to honor it.  (See Jones v. Farmers Ins. Exchange (2013) 221 Cal.App.4th 986, 998 (Jones).)  Accordingly, “[a] trial court acts properly when it refuses to certify class actions in which the named plaintiff is simply ‘ “lending his name to a suit controlled entirely by the class attorney.” ’ ”  (Howard Gunty Profit Sharing Plan v. Superior Court (2001) 88 Cal.App.4th 572, 579–580 (Howard Gunty), quoting  Kirkpatrick v. J.C. Bradford & Co. (11th Cir.1987) 827 F.2d 718, 727.)[4]

 

Here, Plaintiff introduces evidence that class counsel is well-qualified to conduct this litigation, which Defendant does not dispute.  Plaintiff also submits a declaration stating that she understands her duties to the class and intends to fulfill them, distinguishing this case from Jones.  In opposition, MCM submits excerpts from Plaintiff’s deposition testimony.  It urges that, while she testified that she was aware of a settlement offer presented by MCM several days before her deposition, Plaintiff “misstated the monetary aspect of the offer and was unaware of other terms,” and could not provide the specifics of a potential resolution that would satisfy her and the putative class.  And Plaintiff could not testify to other circumstances like the specific forum in which this matter is pending, the fact that counsel made one appearance on her behalf prior to her deposition, her recently added font-size theory of liability, and another putative class action filed on her behalf against a different defendant.  But Plaintiff’s inability to explain every procedural development and legal theory about which she was questioned is not disqualifying.  (See Adobe, supra, 139 F.R.D. at p. 156.)  The very limited deposition excerpts submitted by MCM do not suggest that this action is controlled entirely by counsel, but confirm that Plaintiff is generally informed about the nature of the action and developments like MCM’s settlement offer.  And the additional deposition excerpts submitted by Plaintiff on reply further confirm this conclusion.

 

MCM further argues that Plaintiff has been involved in other litigation with her counsel herein in the past few years, which she does not well recall.  But after being reminded of that case, Plaintiff testified that (consistent with MCM’s characterization) it is generally similar to this one.  The Court does not find that the existence of this other action renders Ms. Leedeman a “professional plaintiff’ as in Howard Gunty,[5] or that her inability to recall the details of what the Court’s records reflect is inactive litigation shows she will fail to supervise counsel.

 

Considering the entire record before it and the narrow and straightforward nature of the claim at issue in this case, the Court finds that Plaintiff and her counsel will adequately represent the class.  Her claims are also typical of the class’ claims.  While MCM urges that Plaintiff did not request any records following her receipt of its initial letter/insert or otherwise suffer any concrete harm or damage, her claim and the claims of putative class members are for statutory damages.  MCM cites no authority supporting its argument that Plaintiff must have suffered “concrete” harm to have standing to bring this case.

 

TransUnion LLC v. Ramirez (2021) ___U.S.___ [141 S.Ct. 2190, 2202, 210 L.Ed.2d 568, 582], which addresses Article III standing to sue in federal court, is inapposite.  As California authorities explain,

 

“[i]n assessing standing, California courts are not bound by the ‘case or controversy’ requirement of article III of the United States Constitution … .” (Bilafer v. Bilafer (2008) 161 Cal.App.4th 363, 370….)  [And] a federal court’s “interpretation of a federal statute’s standing requirements does not determine the scope of standing provided by a California statute.” (Midpeninsula Citizens for Fair Housing v. Westwood Investors (1990) 221 Cal.App.3d 1377, 1385….)

 

(Reycraft v. Lee (2009) 177 Cal.App.4th 1211, 1217.)

 

The Court thus finds that Plaintiff and her counsel will adequately represent the class, and Plaintiff’s claims are typical of the class.

 

  1. Superiority

 

“[A] class action should not be certified unless substantial benefits accrue both to litigants and the courts. . . .”  (Basurco v. 21st Century Ins. (2003) 108 Cal.App.4th 110, 120, internal quotation marks omitted.)  The question is whether a class action would be superior to individual lawsuits.  (Ibid.)  “Thus, even if questions of law or fact predominate, the lack of superiority provides an alternative ground to deny class certification.”  (Ibid.)  Generally, “a class action is proper where it provides small claimants with a method of obtaining redress and when numerous parties suffer injury of insufficient size to warrant individual action.”  (Id. at pp. 120–121, internal quotation marks omitted.)

 

Here, it would be inefficient for the Court to hear and decide the same issues separately and repeatedly for each of the thousands of class members.  Further, it would be cost prohibitive for each class member to file suit individually, as each member would have the potential for little to no monetary recovery.  It is clear that a class action provides substantial benefits to both the litigants and the Court in this case.

 

MCM suggests that certification must be denied because Plaintiff fails to present a detailed trial plan.  But this is not required in every case.  Here, the liability issues are straightforward and there is no indication that the factfinder would need to consider statistical evidence to decide the case.  Under these circumstances, a detailed trial plan is unnecessary at this juncture.  (Cf. Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1, 31 [“[i]f statistical evidence will comprise part of the proof on class action claims, the court should consider at the certification stage whether a trial plan has been developed to address its use”] (Duran I), italics omitted.)[6]

 

  1. Conclusion

 

Plaintiff’s motion for class certification is GRANTED.  The following class is certified:

 

All persons with addresses in California to whom MIDLAND CREDIT MANAGEMENT, INC., sent, or caused to be sent, an initial written communication in the form of Exhibits “1” and “2” to the First Amended Class Action Complaint for Statutory Damages herein in an attempt to collect a charged-off consumer debt originally owed to Capital One Bank (USA), N.A., which was sold or resold to MIDLAND CREDIT MANAGEMENT, INC, on or after January 1, 2014, which were not returned as 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.

 

The parties shall meet and confer regarding a procedure for providing notice to the class and a form of notice.  If they come to agreement, Plaintiff shall file a stipulation along with a statement and proposed order pursuant to California Rules of Court, rule 3.766.  If there is any dispute regarding these issues, the parties shall advance their next case management conference to a mutually agreeable date so that the issues may be promptly addressed.

 

  1. MOTION TO STRIKE

 

Since Ms. Fisher’s declarations were ultimately irrelevant to the Court’s rulings above, MCM’s motion to strike those declarations is MOOT.

 

The Court will prepare the order.

[1] All future statutory references are to this section unless otherwise noted.

[2] The “bona fide error” language in the FDCPA and Rosenthal Act refers to “procedures reasonably adapted to avoid any such” error/violation (15 U.S.C. § 1692k(c), Civ. Code § 1788.30, subd. (d), italics added) as opposed to the “adopted” and “any error” language in the CFDBPA.  But no party contends that these changes make a substantive difference.

[3] MCM provides a similar list in its supplemental opposition, also without further explanation or supporting authorities.

[4] In the absence of a factually similar California case or other relevant California precedent, California courts look to federal authority for guidance on matters involving class action procedures.  (Duran v. Obesity Research Institute, LLC (2016) 1 Cal.App.5th 635, 646, fn.6, citing Cellphone Termination Fee Cases (2010) 186 Cal.App.4th 1380, 1392, fn. 18.)

 

[5] In that case, the trial court found that the plaintiff had “filed approximately 20 lawsuits alleging fraud and mismanagement in securities or derivative actions ….”  (Howard Gunty, supra, 88 Cal.App.4th at pp. 577–578.)  It found that the plaintiff’s administrator “demonstrated inadequate knowledge about the case, and his credibility was weak.”  (Id. at p. 578.)  In light of these findings and the potential for abuse that they reflected, the Court of Appeal held that the trial court must reconsider its decision to permit plaintiff’s counsel to solicit a new class representative, emphasizing the widespread concern that had developed over potentially meritless litigation filed by “professional plaintiffs” in the context of securities claims specifically.  (Id. at pp. 578–579.)

[6] As the case progresses, Plaintiff will bear the burden of proof on her claims and the Court has a continuing responsibility to manage individual issues—including those raised by the defendant—and to decertify the class if they prove unmanageable.  (Duran I, supra, 59 Cal.4th at p. 29.)