defining 17 “‘abet’ as ‘[t]o aid, encourage, or assist (someone), esp. in the commission of a 18 crime’” (alteration in original) (emphasis omitted) (quoting Black’s Law Dictionary 5 19 (11th ed. 2019))
How later courts described this case
- defining 17 “‘abet’ as ‘[t]o aid, encourage, or assist (someone), esp. in the commission of a 18 crime’” (alteration in original) (emphasis omitted) (quoting Black’s Law Dictionary 5 19 (11th ed. 2019))
- holding that well-pleaded factual allegations are accepted 4 as true for purposes of a motion to dismiss
Written by the judges who cited it.
The opinion
O
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8 United States District Court
9 Central District of California
10
11 DAVE VACCARO, Case № 2:23-cv-04513-ODW (BFMx)
12 Plaintiff,
ORDER DENYING DEFENDANTS’
13 v.
14 A LTAIS et al., MOTION TO DISMISS AND
15 MOTION TO STRIKE [8]
Defendants.
16
17 I. INTRODUCTION
18 Plaintiff Dave Vaccaro brings this putative class action against Defendants
19 Altais, Brown and Toland Physician Services Organization, LLC (“BTPSO”), and
20 Grain Consulting Corp. for allegedly recording telephone conversations without
21 Plaintiff’s knowledge or consent. (Notice of Removal Ex. A (“Second Am. Compl.”
22 or “SAC”), ECF No. 1-1.) Altais and BTPSO now move to dismiss Vaccaro’s SAC as
23 to themselves for failure to state a claim under Federal Rule of Civil Procedure
24 (“Rule”) 12(b)(6) or, in the alternative, to strike Vaccaro’s class allegations under
25 Rule 12(f). (Mot. Dismiss SAC (“Motion” or “Mot.”), ECF No. 8.) For the following
26 reasons, the Court DENIES Defendants’ Motion.1
27
28 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the
matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15.
1 II. BACKGROUND
2 The following facts are taken from Vaccaro’s SAC. See Ashcroft v. Iqbal,
3 556 U.S. 662, 678 (2009) (holding that well-pleaded factual allegations are accepted
4 as true for purposes of a motion to dismiss).
5 Altais, a healthcare services company that operates physician networks
6 throughout California, hired BTPSO to conduct annual health assessments with
7 members who maintain health plans with Blue Shield of California. (SAC ¶¶ 8–9.)
8 BTPSO, in turn, contracted with Grain Consulting to contact Blue Shield of California
9 members to schedule the annual assessments. (Id. ¶ 10.)
10 During a call on or about October 11, 2022, in which “Defendants contacted
11 Plaintiff . . . in an attempt to schedule an ‘annual virtual wellness visit,’ . . .
12 Defendants recorded calls without informing Plaintiff that the calls were being
13 recorded.” (Id. ¶¶ 23–24.) Vaccaro never provided actual or constructive consent that
14 the call may be recorded. (Id. ¶ 24.) Grain Consulting was acting within the scope of
15 its contract with BTPSO when it recorded Vaccaro’s telephone call without providing
16 adequate notice or obtaining the requisite consent. (Id. ¶ 13.) Vaccaro further alleges
17 that it is Defendants’ “pattern and practice” to record outgoing calls made to
18 California residents. (Id. ¶ 27.) When making these calls, Defendants “do not inform,
19 or warn, the California residents . . . that the telephone calls may be or will be
20 recorded.” (Id.)
21 On October 17, 2022, Vaccaro filed this action in the Superior Court of
22 California for the County of Los Angeles. (Notice of Removal (“NOR”), ECF No. 1.)
23 On May 12, 2023, Vaccaro filed his Second Amended Complaint (“SAC”) in state
24 court. (Id. ¶¶ 2–3.) As a member of a proposed class (“California Class”), Vaccaro
25 brings two causes of action for violations of California Penal Code sections 632 and
26 632.7. (SAC ¶¶ 32–61.)
27 On June 8, 2023, Defendants Altais and BTPSO (collectively, “Removing
28 Defendants”) removed the action on the basis that this Court has jurisdiction under the
1 Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1332(d). (NOR ¶ 6.)
2 Removal is considered timely because it was within thirty days of the first pleading
3 that renders the case removable (in this case, the SAC), 28 U.S.C. § 1446(b)(3), and
4 within one year after commencement of the action, 28 U.S.C. § 1446(c)(1).
5 Removing Defendants now move this Court to dismiss the SAC as to
6 themselves pursuant to Rule 12(b)(6) or, in the alternative, to strike Vaccaro’s class
7 allegations pursuant to Rule 12(f). (Mot.) Grain Consulting partially joins the
8 Motion, specifically as to the request that Vaccaro’s class allegations be stricken.
9 (Joinder Mot., ECF No. 14.)
10 III. LEGAL STANDARD
11 A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable
12 legal theory or insufficient facts pleaded to support an otherwise cognizable legal
13 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To
14 survive a dismissal motion, a complaint need only satisfy the minimal notice pleading
15 requirements of Rule 8(a)(2)—a short and plain statement of the claim. Porter v.
16 Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual “allegations must be enough to
17 raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,
18 550 U.S. 544, 555 (2007). That is, the complaint must “contain sufficient factual
19 matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal,
20 556 U.S. at 678 (internal quotation marks omitted).
21 The determination of whether a complaint satisfies the plausibility standard is a
22 “context-specific task that requires the reviewing court to draw on its judicial
23 experience and common sense.” Id. at 679. A court is generally limited to the
24 pleadings and must construe all “factual allegations set forth in the complaint . . . as
25 true and . . . in the light most favorable” to the plaintiff. Lee v. City of Los Angeles,
26 250 F.3d 668, 679 (9th Cir. 2001). However, a court need not blindly accept
27 conclusory allegations, unwarranted deductions of fact, and unreasonable inferences.
28 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
1 Rule 12(f) provides that “[t]he court may strike from a pleading an insufficient
2 defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R.
3 Civ. P. 12(f). The decision on whether to grant a motion to strike is at the court’s
4 discretion. See Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1528 (9th Cir. 1993), rev’d
5 on other grounds, 510 U.S. 517 (1994). As with a motion to dismiss, the court must
6 view the pleadings in the light most favorable to the non-moving party. In re
7 2TheMart.com Sec. Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000).
8 Courts may grant a motion to strike “to avoid the expenditure of time and
9 money that must arise from litigating spurious issues by dispensing with those issues
10 prior to trial.” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir.
11 2010) (internal quotations omitted). Courts may also grant a motion to strike to
12 streamline the resolution of the action and focus the jury’s attention on the real issues
13 in the case. See Fantasy, 984 F.2d at 1528. Yet, motions to strike are generally
14 disfavored due to the limited role that pleadings play in federal practice, and because
15 the motions can often be used as a delay tactic. Cal. Dep’t of Toxic Substances
16 Control v. Alco Pac., Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002).
17 Where a district court grants a motion to dismiss or a motion to strike, it should
18 generally provide leave to amend unless it is clear the complaint could not be saved by
19 any amendment. See Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire & Marine Ins.
20 Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Leave to amend may be denied when “the
21 court determines that the allegation of other facts consistent with the challenged
22 pleading could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well
23 Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986). Thus, leave to amend “is
24 properly denied . . . if amendment would be futile.” Carrico v. City and County of
25 San Francisco, 656 F.3d 1002, 1008 (9th Cir. 2011).
26 IV. DISCUSSION
27 Removing Defendants argue that the Court should dismiss the SAC as to
28 themselves pursuant to Rule 12(b)(6) or, in the alternative, strike Vaccaro’s class
1 allegations pursuant to Rule 12(f). Grain Consulting joins Removing Defendants in
2 the latter request. Before addressing Defendants’ arguments, the Court first confirms
3 that it has subject matter jurisdiction over this case.
4 A. Subject Matter Jurisdiction
5 On July 31, 2023, the Court ordered Removing Defendants to show cause why
6 this action should not be dismissed for lack of subject matter jurisdiction. (Order
7 Show Cause, ECF No. 19.) Specifically, the Court posed “a two-pronged inquiry into
8 the facial and factual sufficiency of Removing Defendants’ demonstration of subject
9 matter jurisdiction.” (Id. at 2–3 (emphasis in original) (citing Leite v. Crane Co.,
10 749 F.3d 1117, 1122 (9th Cir. 2014)).) Both Vaccaro and Removing Defendants
11 responded to the Court’s inquiry. (Resp. Order Show Cause (“OSC Resp.”), ECF
12 No. 20; Pl.’s Reply (“OSC Reply”), ECF No. 21).
13 1. Legal Standard
14 Federal courts have subject matter jurisdiction only as authorized by the
15 Constitution and Congress, U.S. Const. art. III, § 2, cl. 1; Kokkonen v. Guardian Life
16 Ins. Co. of Am., 511 U.S. 375, 377 (1994), and have an independent obligation to
17 determine whether subject matter jurisdiction exists, even when no party challenges it,
18 Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010); see 28 U.S.C. § 1447 (“If at any time
19 before final judgment it appears that the district court lacks subject matter jurisdiction,
20 the case shall be remanded.”).
21 CAFA vests original jurisdiction in district courts to hear civil actions “in which
22 the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest
23 and costs, and is a class action in which . . . any member of a class of plaintiffs is a
24 citizen of a State different from any defendant.” 28 U.S.C. § 1332(d)(2)(A); Adams v.
25 W. Marine Prods., Inc., 958 F.3d 1216, 1220 (9th Cir. 2020). CAFA jurisdiction only
26 exists over actions where the number of proposed class members is greater than 100.
27 28 U.S.C. § 1332(d)(5)(B).
28
1 Generally, a notice of removal filed in federal court must contain only “a
2 plausible allegation that the amount in controversy exceeds the jurisdictional
3 threshold.” Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 89
4 (2014). But where a plaintiff contests, or the court questions, a defendant’s
5 allegations concerning the amount in controversy, both sides submit proof, and the
6 court decides whether the defendant has proven the amount in controversy by a
7 preponderance of the evidence. Id. at 88–89.
8 These procedures apply to the amount in controversy requirement in CAFA
9 cases to the same extent they apply to ordinary diversity cases. As the Ninth Circuit
10 has explained:
11
When plaintiffs . . . have prepared a complaint that does not assert the
12 amount in controversy, or that affirmatively states that the amount in
controversy does not exceed $5 million, if a defendant wants to pursue a
13
federal forum under CAFA, that defendant in a jurisdictional dispute has
14 the burden to put forward evidence showing that the amount in
controversy exceeds $5 million . . . and to persuade the court that the
15
estimate of damages in controversy is a reasonable one.
16
17 Ibarra v. Manheim Invs., 775 F.3d 1193, 1197 (9th Cir. 2015). “Under this system,
18 CAFA’s requirements are to be tested by consideration of real evidence and the reality
19 of what is at stake in the litigation, using reasonable assumptions underlying the . . .
20 theory of damages exposure.” Id. at 1198. “[A] defendant cannot establish removal
21 jurisdiction by mere speculation and conjecture, with unreasonable assumptions.” Id.
22 at 1197. “[W]hen the defendant relies on a chain of reasoning that includes
23 assumptions to satisfy its burden of proof [as to CAFA’s amount-in-controversy
24 requirement], the chain of reasoning and its underlying assumptions must be
25 reasonable.” LaCross v. Knight Transp. Inc., 775 F.3d 1200, 1202 (9th Cir. 2015).
26 2. Analysis
27 “[T]he amount in controversy reflects the maximum recovery the plaintiff could
28 reasonably recover.” Arias v. Residence Inn by Marriott, 936 F.3d 920, 926 (9th Cir.
1 2019) (emphasis in original). Removing Defendants claim the amount in controversy
2 to be at least $49,880,000. (OSC Resp. 1.) They calculate this number by multiplying
3 the number of calls conducted during the class period—9,976—by the $5,000
4 statutory fine to which the proposed class member would be entitled for each
5 violation. (Id.) The Court evaluates each of Removing Defendants’ assumptions in
6 turn.
7 First, in his SAC, Vaccaro alleges that the proposed class “includes thousands of
8 members.” (SAC ¶ 36.) Vaccaro claims that “the California Class members may be
9 ascertained by the records maintained by Defendants.” (Id.) To determine the number
10 of class members and telephone calls responsive to Plaintiff’s allegations, Removing
11 Defendants provide extrinsic support in the form of a declaration by Ovais Jalil, the
12 former CEO of Grain Consulting. (Decl. Ovais Jalil ISO OSC Resp. (“Jalil Decl.”),
13 ECF No. 20-1.) Jalil states that “[d]uring the class period of October 17, 2021
14 through October 17, 2022, Grain Consulting recorded 9,976 telephone calls with
15 5,436 unique Blue Shield of California members.” (Id. ¶ 3.)
16 In his SAC, although Vaccaro pleads that it is “Defendants’ pattern and practice
17 to record outgoing calls made to California residents,” (SAC ¶ 27), Removing
18 Defendants provide extrinsic support for the exact number of telephone calls that
19 Grain Consulting recorded. Therefore, there is no need to apply a violation rate or
20 speculate as to number of calls that Grain Consulting recorded. Accordingly,
21 Plaintiff’s allegation—that Grain Consulting recorded telephone calls made to Blue
22 Shield of California members without the member’s consent—combined with the
23 extrinsic support that Grain Consulting recorded 9,876 telephone calls made to 5,346
24 Blue Shield of California members during the class period, renders Removing
25 Defendants’ figures reasonable for the purposes of determining CAFA subject matter
26 jurisdiction.
27 Next, Vaccaro alleges that each recording without consent constitutes a
28 violation of both California Penal Code sections 632 and 632.7. California Penal
1 Code section 632 states, in pertinent part, that “[a] person who, intentionally and
2 without the consent of all parties to a confidential communication, uses [a] recording
3 device to . . . record the confidential communication . . . shall be punished by a fine
4 not exceeding two thousand five hundred dollars ($2,500) per violation.” Cal. Penal
5 Code § 632. California Penal Code section 632.7 applies the same offense to cordless
6 or cellular communications. See Cal. Penal Code § 632.7.
7 Vaccaro alleges that these code sections are “violated the moment the recording
8 is made without the consent of all parties thereto.” (SAC ¶¶ 2–3.) Further, in the
9 SAC, Vaccaro asserts that he and the class members, who “were exposed to virtually
10 identical conduct,” “are entitled to the gr[e]ater of statutory damages of $5,000 per
11 violation or three times actual damages per violation pursuant to Penal Code
12 § 637.2(a).” (SAC ¶ 38.) Vaccaro provides no argument for why the statutory penalty
13 should not apply to each of Grain Consulting’s recorded calls, if, as Vaccaro alleges,
14 they were recorded without the members’ consent. (See generally OSC Reply.)
15 Accordingly, multiplying the number of recorded telephone calls by the $5,000
16 statutory penalty, Plaintiff’s allegations place $49,880,000 in controversy as the
17 maximum amount that Vaccaro could reasonably recover.
18 Therefore, considering the number of members in Plaintiff’s California Class
19 and the amount that Plaintiff places in controversy, the Court determines, at this time,
20 that this case satisfies CAFA’s jurisdictional requirements.
21 B. Defendants’ Motion to Dismiss or Strike Class Allegations
22 Moving next to the Defendants’ Motion, Removing Defendants argue that the
23 Court should dismiss the SAC as to Altais and BTPSO with prejudice and without
24 leave to amend, pursuant to Rules 8(a)(2) and 12(b)(6). In the alternative, Removing
25 Defendants argue that the Court should strike the SAC’s class definitions. The Court
26 considers each request in turn.
27
28
1 1. Motion to Dismiss Pursuant to Rules 8(a)(2) and 12(b)(6)
2 Removing Defendants first ask the Court to consider whether Vaccaro can hold
3 Altais and BTPSO “liable for the nonconsensual recording of their telephone calls if
4 the operative pleading fails to allege that either defendant ever had contact with
5 Plaintiff, let alone recorded their calls.” (Mot. 1.) The answer can be found in
6 California law.
7 “Generally, if a statute is intended to impose a derivative liability on some
8 person other than the actor, there must be some legislative direction that it is to be
9 applied to persons who do not themselves commit the proscribed act.” People v.
10 Walker, 18 Cal. 3d 232, 241–42 (1976). Section 31 of the California Penal Code
11 provides this legislative direction, which states that persons are liable of an offense if
12 they “directly commit the act constituting the offense, or aid and abet in its
13 commission.” Cal. Penal Code § 31. “An aider and abettor is one who acts with both
14 knowledge of the perpetrator’s criminal purpose and the intent of encouraging or
15 facilitating commission of the offense.” People v. Sattiewhite, 59 Cal. 4th 446, 472
16 (2014); see Marquez-Reyes v. Garland, 36 F.4th 1195, 1202 (9th Cir. 2022) (defining
17 “‘abet’ as ‘[t]o aid, encourage, or assist (someone), esp. in the commission of a
18 crime’” (alteration in original) (emphasis omitted) (quoting Black’s Law Dictionary 5
19 (11th ed. 2019))).
20 Section 31, when applied to Sections 632 and 632.7, “allows for [the defendant]
21 to be viewed as a principal whether or not she actually physically recorded the
22 confidential conversation.” Vera v. O’Keefe, 791 F. Supp. 2d 959, 965 (S.D. Cal.
23 2011). “The plain language of the statute does not limit liability to the person who has
24 physically recorded a confidential conversation.” Id. Applying this standard to
25 determine whether liability exists under Section 632, the court can look to whether the
26 defendant, “at a minimum, intended for a surreptitious recording of confidential
27 information to occur in her presence or participated in the recording of confidential
28 information.” Id.
1 Accordingly, under California law, it is not necessary for Altais or BTPSO to
2 directly call or record the phone calls with Plaintiff to be liable for an offense under
3 sections 632 or 632.7. Rather, it could be sufficient if they aided and abetted the
4 commission of the offense by intending for the calls to be recorded without providing
5 adequate safeguards to prevent the calls from being illegally recorded.
6 For instance, in Kristensen v. Credit One Bank, N.A., the defendant hired a
7 third-party company to record telephone conversations with its customers. No. 2:14-
8 cv-7963-DMG (AJWx), 2016 WL 11757832, at *1–2 (C.D. Cal. July 11, 2016).
9 Evaluating liability under section 632, the court pointed to an agreement between the
10 parties that the recording company “was required to record between 98% and 100% of
11 its calls with consumers” and “was to disclose to consumers that the calls may be
12 monitored.” Id. at *2 (internal quotation marks omitted). The court found that this
13 contract indicated that the defendant did not intend to record or assist in the intentional
14 recordation of the conversations with the plaintiff, and it was therefore not liable for
15 aiding and abetting a violation of sections 632 or 632.7. Id. at *7.
16 Vaccaro alleges that a similar contract exists in this case, but that it lacks the
17 adequate safeguards to ensure that calls would not be recorded without disclosing that
18 fact or obtaining consent. Specifically, Vaccaro alleges that “Altais hired [BTPSO] to
19 conduct annual health assessments of members [of] the Blue Shield of California
20 health plan,” (id. ¶ 9), and that “BTPSO, in turn, hired Grain Consulting . . . to
21 schedule these annual health assessments,” (id. ¶ 10). Vaccaro further alleges that the
22 contracts between Altais, BTPSO, and Grain Consulting “contemplated the collection
23 and recordation of consumer information, without adequate safeguards which comply
24 with California Law.” (Id. ¶ 12.) Each party was acting within the scope of its
25 contract when Grain Consulting called and recorded its telephone call with Vaccaro
26 and the members of the California Class without first providing adequate notice of
27 recording or obtaining consent. (Id. ¶ 13.) Vaccaro alleges that Altais and BTPSO
28 “authorized and ratified” Grain Consulting’s recordings “by setting this conduct in
1 motion without adequate oversight or safeguards, and without contractual obligations
2 to follow the requisite legal standards under the California Invasion of Privacy Act in
3 carrying out these instructions and tasks on their mutual behalf.” (Id. ¶ 18.)
4 Accepting the SAC’s well-pleaded factual allegations as true for the purposes of
5 this Motion, Vaccaro plausibly pleads violations of California Penal Code sections 632
6 and 632.7 as to Altais and BTPSO. The Court reserves the inquiry into what extent
7 the contracts between Altais, BTPSO, and Grain Consulting support Vaccaro’s
8 allegations for summary judgment and/or other future adjudication. The Court
9 therefore DENIES Removing Defendants’ Motion to Dismiss.
10 2. Motion to Strike Pursuant to Rules 12(f) and 23
11 Next, Removing Defendants ask the Court to strike Vaccaro’s class allegations
12 because the definition “presumes liability under the statutes at issue,” thereby “making
13 it impossible to determine the class’s contours without assessing liability.” (Mot. 1.)
14 Grain Consulting joins Removing Defendants in this argument. (Joinder Mot. 2.)
15 Under Rule 12(f), class allegations may be stricken from a Complaint if “the
16 allegations make it obvious that classwide relief is not available” under Rule 23. Am.
17 W. Door & Trim v. Arch Specialty Ins. Co., No. 2:15-cv-00153-BRO (SPx), 2015 WL
18 1266787, at *8 (C.D. Cal. Mar. 18, 2015). Motions to strike are disfavored and “will
19 usually be denied unless the allegations have no possible relation to the controversy
20 and may cause prejudice to one of the parties.” Friedman v. 24 Hour Fitness USA,
21 Inc., 580 F. Supp. 2d 985, 990 (C.D. Cal. 2008) (internal quotation marks and citation
22 omitted). Ordinarily, “Rule 23 is the better vehicle to test the propriety of class
23 certification.” Connelly v. Hilton Grant Vacations Co., LLC, No. 12-cv-599-JLS
24 (KSC), 2012 WL 2129364, at *3 (S.D. Cal. June 11, 2012). But “[i]f it is obvious
25 from the pleadings that the proceeding cannot possibly move forward on a classwide
26 basis, district courts use their authority under Federal Rule of Civil Procedure 12(f) to
27 delete the complaint’s class allegations.” Manning v. Bos. Med. Ctr. Corp., 725 F.3d
28 34, 59 (1st Cir. 2013). “The plaintiff bears the burden of advancing a prima facie
1 showing that the class action requirements of [Rule] 23 are satisfied or that discovery
2 is likely to produce substantiation of the class allegations.” Mantolete v. Bolger,
3 767 F.2d 1416, 1424 (9th Cir. 1985).
4 Vaccaro seeks to certify a “California Class,” consisting of:
5 All persons in California whose inbound and outbound telephone
6 conversations were recorded without their consent by Defendants within
the year prior to the filing of the ori[gi]nal Complaint in this action.
7
8 (SAC ¶ 32.)
9 Defendants argue that the California Class should be struck because it is
10 circularly defined in a “fail-safe” manner to only include members who will succeed
11 on the merits. (Mot. 13.) When a “class itself is defined in a way that precludes
12 membership unless the liability of the defendant is established,” it is considered a
13 fail-safe class. Kamar v. RadioShack Corp., 375 F. App’x. 734, 736 (9th Cir. 2010).
14 Although the Ninth Circuit has suggested that fail-safe class definitions are “palpably
15 unfair to the defendant,” it has not explicitly held that fail-safe classes are
16 impermissible. Id.; see also Greene v. Select Funding, LLC, No. 2:20-cv-07333-RGK
17 (KSx), 2021 WL 4926495, at *6 (C.D. Cal. Feb. 5, 2021) (“[T]he Ninth Circuit has
18 not explicitly held that fail-safe classes are impermissible.”). Therefore, at this stage
19 of litigation, the Court does not consider it appropriate to strike the SAC’s class
20 allegations.
21 Defendants argue that Greene, where the court struck the plaintiff’s fail-safe
22 class definition, supports their conclusion that the Court should do the same in this
23 case. (Mot. 13 (citing Greene, 2021 WL 4926495, at *5–6).) However, in Greene, the
24 court only struck the fail-safe class definition because, first, the plaintiff was “‘fully
25 amendable’ [sic] to removing the language from the proposed definition,” and, second,
26 the defendants only raised the fail-safe argument after the deadline to file a motion for
27 class certification had passed. Id. at *6. Neither is true in this case. In fact, other
28 cases in this district have permitted class allegations with definitions similar to the one
1 in this case. See, e.g., Raffin v. Medicredit, Inc., No. 2:15-cv-04912-GHK (PJWx),
2 2017 WL 131745, at *1–2, *10 (C.D. Cal. Jan. 3, 2017) (granting class certification
3 where the class is defined as “[a]ll persons in California whose inbound and outbound
4 telephone conversations were recorded without their consent by Defendants or its [sic]
5 agents . . . within the one year prior to the filing of this action”); Zaklit v. Nationstar
6 Mortg. LLC, No. 5:15-cv-02190-CAS (KKx), 2017 WL 3174901, at *3, *14
7 (C.D. Cal. July 24, 2017) (granting class certification where the class is defined as
8 “[a]ll persons in California whose inbound and outbound telephone conversations
9 were recorded without their consent by Defendants or its agents . . . within the one
10 year prior to the filing of this action.”). Those class definitions almost identically
11 mirror the definition of the California Class in this case.
12 The argument that Plaintiff’s class definition is impermissibly fail-safe is better
13 suited for a motion to certify class. The Court “finds that it ‘should await the
14 development of a factual record before determining whether the case should move
15 forward on a representative basis.’” Rivas v. Physician Lab’y, Inc., No. 5:18-cv-729-
16 DOC (AGRx), 2018 WL 6133722, at *6 (C.D. Cal. Oct. 24, 2018) (quoting Manning,
17 725 F.3d at 59). At this stage of litigation, it is not “obvious from the pleadings that
18 the proceeding cannot possibly move forward on a classwide basis.” Manning,
19 725 F.3d at 59. Accordingly, the Court deems Defendants’ Motion to Strike to be
20 premature.
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1 Vv. CONCLUSION
2 For the reasons discussed above, the Court DENIES Defendants’ Motion to
3 || Dismiss Plaintiffs’ Second Amended Complaint or Strike Plaintiffs Class
4|| Allegations. (ECF No. 8).
5
6 IT IS SO ORDERED.
7
8 October 23, 2023 hy
9 oe ft
Stila
11 OTIS D. HT, Il
b UNITED STATES DISTRICT JUDGE
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