Second District Affirms Denial of Certification of Class of Junk Fax Recipients for Lack of Ascertainability

by charlesjung

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The Second District affirmed denial of certification of a class of recipients of unsolicited faxes. Law Offices of Hermez Moreno v. Travelcomm Industries, Inc., B214807, 2010 WL 3610131 (Cal. Ct. App. 2d Dist. Sept. 17, 2010).  Plaintiff and appellant Law Offices of Hermez Moreno brought a putative class action under 47 United States Code section 227, the Telephone Consumer Protection Act of 1991 (TCPA), and Business and Professions Code 17538.43 alleging that defendants and respondents Travelcomm Industries, Inc. and others had sent unsolicited faxes.  Id. *1.  The trial court denied class certification based on findings that plaintiff had failed to present substantial evidence that a community of interest existed such that common questions of law and fact would predominate. As a separate basis, the court found that appellant had failed to present substantial evidence that the class was ascertainable. Id. Plaintiff appealed.  Id. *1.

The proposed national class description was as follows:

All businesses or individuals who have received unsolicited facsimile transmissions which were directed by Defendants or business entities acting on behalf of Defendants to facsimile machines owned by these businesses and individuals (including facsimiles sent to personal computer equipped with, or attached to, modems and to computerized fax servers) at any time between July 27, 2003, to and including entry of judgment in this action, other than those individuals or business entities having an established business relationship with Defendants, or business entities acting on their behalf.

Acertainability

The trial court found that Plaintiff had no records, or identified means to obtain any records, from which persons who received the facsimiles in question could be identified.  Id. Instead, Plaintiff proposed to publish notification to the class in the newspaper and on internet ‘junkfax’ sites; and thereafter, potential class members would self-identify.  Id.

Absence of Records

Plaintiff argued that defendant was responsible for the absence of records which could be used to identify the class, having destroyed the records or having failed to produce them, and that under such circumstances, notice by publication or other innovative forms of notice are appropriate.  Id. (citing Employment Development Dept. v. Superior Court, 30 Cal.3d 256, 266 (1981).  But the trial court found that plaintiff brought no motion to compel production of records allegedly withheld and has not presented any evidence that Telecomm was in fact possessed of such records and destroyed them. Id. Plaintiff argued that it could not have brought a motion to compel because Travelcomm’s discovery responses were in compliance with the statutes which govern responses when a party claims that it is not in possession of the documents (Code Civ. Proc., 2031.210, 2031.230) and that there is substantial evidence in the record that the relevant records existed but were not produced, or had been destroyed. Id.

The Court of Appeal rejected this argument:

We can see nothing in the Reponses or other documents which would constitute evidence that Travelcomm had the relevant records but refused to produce them or destroyed them.  If, as appellant contends, there was such evidence, appellant could and should have brought it to the court’s attention through a motion to compel or other appropriate motion.

Thus the court affirmed, finding that the  trial court did not abuse its discretion in finding that appellant failed to present substantial evidence that the class was ascertainable.

Judges and Attorneys

Justice Orville A. Armstrong wrote the opinion for the court.  Justices Richard M. Mosk and Sandy R. Kriegler concurred.

Appeal was taken from a judgment of the Superior Court of Los Angeles County, Hon. Mary H. Strobel.

Knapp, Petersen & Clarke, Stephen M. Harris for Plaintiffs and Appellants.

Business Law Group, Dennis J. Hawk, Gary Holmes for Defendants and Respondents.

By CHARLES JUNG

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