A fairly great win out of the Central District of California with Bustillos v. W. Covina Corporate Fitness, Case No.: 2:21-cv-04433-SB-AFM. As a quick background, a former gym member whose membership had previously expired had gone into Gold’s Gym (which is operated by Defendant West Covina Corporate Fitness, Inc.) in January 2021 and provided his phone number to an employee, who entered it into his profile. However, the number entered in the system was one digit off and actually belonged to the Plaintiff. One month later, Defendant utilized a vendor to send out a one-time prerecorded message to approximately 4,000 individuals who had provided their telephone numbers to Defendant and had agreed to receive communications, including by pre-recorded messages. Plaintiff was included in this group of people (by virtue of the error made by the Gold’s employee in entering the phone number), and received one prerecorded message. After receiving the one prerecorded call, Plaintiff sued Defendant under the TCPA and then sought to certify a class of similarly situated individuals.
However, amongst this factual backdrop and in a particularly incredible result, the Court decided the matter without oral argument and denied the Motion for Class Certification. The Court found that Plaintiff’s class failed to satisfy the typicality and adequacy requirements of Rule 23(a)(3) and (4), and that her Motion for Class Certification must be denied. Specifically, the Court stated that Plaintiff was atypical of the class she sought to represent because she, unlike the other recipients of the prerecorded calls, did not consent to receive messages from Defendant.
According to the Court, Plaintiff—unlike all of the other class members—never signed any agreement consenting to be contacted by Defendant. Thus, she has no stake in whether the agreements signed by other class members satisfied the consent requirements of the TCPA, and therefore lacked standing to make any argument about their validity. Had Plaintiff tried to certify a class of individuals who had not consented to be contacted, the inquiry may be different, but because the central issue of whether the signed agreements provided valid TCPA consent was absent from Plaintiff’s claim (because she never signed such an agreement), she is atypical of the class. Motion for class certification denied.
And, in an extreme cautionary tale to all attorneys everywhere, the Court found that the Motion could have also been denied on other grounds—specifically, the Plaintiff’s failure to meet and confer with Defendants prior to the filing of the Motion, as required by the Central District of California’s Local Rules. Although Plaintiff’s counsel attempted to argue that they tried to confer with Defendant about the motion two days before the Motion was filed and Defendant’s counsel was traveling and unable to confer, (oh and Plaintiff’s counsel also claimed that Defendants were almost certain to oppose the class certification motion anyways, so no prejudice)—these arguments did not fly with the Court. The Court found that the failure to confer was a blatant disregard of the local rules and the Court’s standing orders, and that the Motion could have been denied on these grounds alone. So, always make sure to read the local rules.