del Campo v. American Corrective Counseling Services, Inc.

254 F.R.D. 585, 2008 U.S. Dist. LEXIS 106004, 2008 WL 5423326
CourtDistrict Court, N.D. California
DecidedDecember 3, 2008
DocketNo. C 01-21151 JW
StatusPublished
Cited by7 cases

This text of 254 F.R.D. 585 (del Campo v. American Corrective Counseling Services, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
del Campo v. American Corrective Counseling Services, Inc., 254 F.R.D. 585, 2008 U.S. Dist. LEXIS 106004, 2008 WL 5423326 (N.D. Cal. 2008).

Opinion

ORDER GRANTING PLAINTIFFS’ SUPPLEMENTAL MOTION FOR CLASS CERTIFICATION

JAMES WARE, District Judge.

I. INTRODUCTION

Plaintiffs bring this putative class action alleging, inter alia, that Defendants engaged in a pattern of behavior in implementing the District Attorney Bad Check Diversion Program1 (“Diversion Program”) that violates [589]*589the California Constitution, the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, as well as other related state statutory and tort laws. Plaintiffs allege that Defendants operated the Diversion Program unlawfully by using the names of local district attorneys, demanding fees, and using the threat of criminal prosecution to force bad check writers to comply with their payment demands.

Presently before the Court are Plaintiffs’ Amended Motion for Class Certification (hereafter, “Amended Motion,” Docket Item No. 643) and Plaintiffs’ Supplemental Motion for Class Certification (hereafter, “Supplemental Motion,” Docket Item No. 684). The Court conducted a hearing on September 15, 2008. Based on the papers submitted to date and oral argument, the Court GRANTS Plaintiffs’ Motions for Class Certification.

II. BACKGROUND

Plaintiffs are Elena del Campo (“del Cam-po”), Ashorina Medina (“Medina”), Lois Artz (“Artz”) and Lisa Johnston (“Johnson”) (collectively, “Plaintiffs”). Defendants are American Corrective Counseling Services, Inc. (“ACCS”), Don R. Mealing (“Mealing”), Lynn Hasney (“Hasney”), Mr. Green, R.D. Davis, Mr. Kramer, Mrs. Lopez, Inc. Fundamentals (“Fundamentals”), Fundamental Performance Strategies (“Strategies”), Fulfillment Unlimited (“Fulfillment”) and ACCS Administration, Inc. (“ACCS Admin.”), (collectively “ACCS”).

A. Factual Allegations

In a Second Amended Consolidated Complaint filed on December 22, 2006, Plaintiffs allege as follows:

Defendants engaged in a pattern of behavior in implementing the diversion program that violates Plaintiffs’ constitutional and statutory rights. This pattern begins when bounced checks are referred to Defendants from various retail merchants for collection. (Second Amended Consolidated Complaint, hereafter, “Complaint,” 111169-70, Docket Item No. 283.) The merchants originally refer checks to the District Attorney, who then decides whether or not the check writer should be referred to the diversion program. Upon referral, ACCS Defendants instruct the merchants not to communicate with Plaintiffs. ACCS Defendants also send Plaintiffs a letter purporting to be from the Santa Clara District Attorney’s Bad Check Restitution Program or the Sonoma County District Attorney Bad Check Restitution Program (“Bad Check Programs”). The letter explains that Plaintiffs can avoid criminal prosecution for allegedly violating California Penal Code 476(a) by enrolling in the optional Bad Check Programs, without any admissions of guilt. (Complaint 1I1f 72-73; Exs. 1, 15.) The letter also instructs Plaintiffs to make checks out to the Bad Check Program, listing fees currently owed from their bounced check, an administration fee of $35, and the diversion program fee. (Complaint 111! 30, 39, 44, 64; Exs. 1, 4, 6, 8,15.)
After receiving the letter, Plaintiffs either 1) tendered payments toward satisfying the original dishonored check, 2) tendered payments for the original check and the administration fee, or 3) did not send in any payment at all. (Complaint UK 34-68.) ACCS Defendants kept a portion of any payments tendered and informed the merchant that Plaintiffs tendered less than the full amount of the bounced check. As a result, Plaintiffs have not satisfied their debts to the merchants. Id. In all instances, Plaintiffs had no intentions of participating in the Bad Checks Program, never indicated such intentions, and never completed the Bad Check Program Enrollment Form. Id.
Plaintiffs were subsequently sent additional letters from ACCS Defendants. The letters: 1) indicated that Plaintiffs have failed to respond to the previous letters; 2) reiterated that Plaintiffs had the option of enrolling in the Bad Check Program and paying the balance of their [590]*590“cases;” and 3) warned them that failure to comply could result in the District Attorney filing a criminal complaint. In all cases, Plaintiffs have not paid the full amounts ACCS Defendants claim they owe, nor have any of the Plaintiffs been prosecuted for writing bad checks. Id.

On the basis of the allegations outlined above, Plaintiffs allege six causes of action as follows: violation of (1) California Constitution, Article I, Section 1; (2) Fair Debt Collection Practices Act, 15 U.S.C. § 1692 (“FDCPA”); (3) California Unfair Business Practices Act, Cal. Bus. & Prof.Code §§ 17200 et seq. (“ § 17200”); (4) conversion; (5) fraudulent misrepresentation; and (6) negligent misrepresentation.

B. Procedural History

This case is a consolidated case between del Campo v. Kennedy, Case No, 01-21151 JW and Medina v. Mealing, Case No. 03-2611 JW. In the original suit, Plaintiff del Campo filed a class action against Defendants for violations of her Due Process rights pursuant to 42 U.S.C. § 1983 and Art. I § 7 of the California Constitution. Plaintiff del Campo also alleged violations of the FDCPA and § 17200. Upon Defendants’ motion, the Court dismissed del Campo’s § 1983 and Art. 1, § 7 causes of action with prejudice based on her failure to state a claim. In Medina v. Mealing, Plaintiff Medina also filed a class action against Defendants for violations of § 1983 and Art. I § 7. On February 1, 2006, the Court consolidated Plaintiffs’ cases into the present action. (Order Granting Motion to Consolidate Case, Docket Item No. 161.) On December 5, 2006, the Court dismissed all federal claims for violations of Due Process under § 1983 and Art. I § 7 against all Defendants. The Court also dismissed District Attorney George Kennedy from the case.

On September 15, 2008, the Court held a hearing on Plaintiffs’ Amended Motion for Class Certification. In Plaintiffs’ Amended Motion and in argument at the September 15 hearing, Plaintiffs represented that they sought to bifurcate class certification by preliminarily seeking certification of a Rule 23(b)(2) injunctive class, and then seeking certification of a Rule 23(b)(3) damages class if the injunctive class could first successfully establish Defendants’ liability. See Fed. R.Civ.P. 23(b)(2-3). Plaintiffs represented that their Amended Motion only moved to certify a Rule 23(b)(2) class because there was a possibility that Defendants might not be able to pay a potential judgment. The Court treated Plaintiffs’ representations as an implied motion to bifurcate class certification. The Court denied Plaintiffs’ implied motion on the ground that judicial economy militated against Plaintiffs’ piecemeal approach, especially in light of the speculative nature of Plaintiffs’ contentions regarding damages.

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Bluebook (online)
254 F.R.D. 585, 2008 U.S. Dist. LEXIS 106004, 2008 WL 5423326, Counsel Stack Legal Research, https://law.counselstack.com/opinion/del-campo-v-american-corrective-counseling-services-inc-cand-2008.