1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 THE ESTATE OF KERRY O’SHEA, Case No.: 14cv894-L-RBB through SHARLENE O’SHEA, on behalf 12 of itself and all others similarly situated, CLASS ACTION 13 Plaintiffs, ORDER GRANTING PLAINTIFF’S 14 v. RENEWED JOINT MOTION TO 15 SUBSTITUTE THE ESTATE OF AMERICAN SOLAR SOLUTION, INC., KERRY O’SHEA FOR THE NAMED 16 Defendant. AND DECEASED CLASS 17 REPRESENTATIVE KERRY O’SHEA [Doc. 170] 18
19 Pending in this certified class action alleging violation of the Telephone Consumer 20 Protection Act, 47 U.S.C. § 277 is a Renewed Motion to Substitute the Estate of Kerry 21 O’Shea for the named and Deceased Class Representative Kerry O’Shea. 22 I. BACKGROUND 23 This case is a class action alleging Defendant American Solar Solution, Inc. 24 (“Defendant”) violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 25 227 et seq., by using an automatic telephone dialer system (“ATDS”) to place 26 telemarketing calls to cell phones. Defendant is in the business of selling solar energy 27 equipment to residential and commercial customers. To market its products and services, 28 1 Defendant used a ViciDial predictive dialer to contact phone numbers uploaded into the 2 dialer. Defendant purchased these telephone numbers from several different companies 3 that sell lists of phone numbers that connect to members of a population meeting certain 4 demographic criteria. Per Plaintiff’s expert’s report, Defendant made 897,534 calls to 5 220,007 different cell phone numbers. Defendant has no evidence indicating any of the 6 alleged call recipients provided prior express consent to receive these calls. 7 Defendant placed fifteen calls to named Plaintiff Kerry O’Shea’s (“Plaintiff”) cell 8 phone. Plaintiff was appointed class representative of this litigation on March 2, 2017. 9 (See ECF No. 88 at 9). On the same day, class certification was granted by this Court for 10 the following class: 11 All individuals in the United States who were called by or on behalf of Defendant; using the ViciDial predictive dialer; on a cellular telephone 12 number, between November 22, 2012 and August 22, 2015. 13 [ECF No. 88 at 9.] 14 Kerry O’Shea passed away intestate on August 11, 2019, in Sausalito, California. 15 (See Motion Ex A Certificate of Death for Kerry O’Shea. Sharlene O’Shea is the sole 16 beneficiary of her late husband’s estate and brings this motion seeking substitution of the 17 Estate of Kerry O’Shea, through Sharlene O’Shea, as the Class Representative. 18 II. LEGAL STANDARD 19 Under Federal Rules of Civil Procedure 25(a)(1) the court may order substitution 20 of the proper party “[i]f a party dies and the claim is not extinguished.” 21 Fed.R.Civ.P.25(a)(1). If the court determines that a party has met the requirements of 22 Rule 25, “[t]he substituted party steps into the same position as [the] original party.” 23 Hilao v. Estate of Marcos, 103 F.3d 762, 766 (9th Cir. 1996). “In deciding a motion to 24 substitute under Rule 25(a)(1), a court must consider whether: (1) the motion is timely; 25 (2) the claims pled are extinguished; and (3) the person being substituted is a proper 26 party.” Smith v. Specialized Loan Servicing, LLC, 2017 WL 4050344 *2 (S.D. Cal. 27 2017)(internal citations omitted). 28 1 When a party is substituted in a class action, a court must also determine whether 2 the new party meets the typicality and adequacy requirements of Rule 23(a)(3) and (4). 3 Nunez v. BAE Systems San Diego Ship Repair Inc., 292 F.Supp.3d 1018, 1062 (S.D. Cal. 4 Nov. 14, 2017). 5 III. DISCUSSION 6 The Court finds that the requirements of Rule 25(a) have been met. First, the 7 motion was timely filed. Under Rule 25, “[i]f a motion is not made within 90 days after 8 service of a statement noting the death, the action by or against the decedent must be 9 dismissed.” Fed.R.Civ.P. 25(a); Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). On 10 January 29, 2021, the parties gave the Court notice of Kerry O’Shea’s death when they 11 filed a Joint Motion to Substitute Sharlene O’Shea for her Late Spouse and Deceased 12 Class Representative Kerry O’Shea. (Doc. No. 163). The Motion was filed at the same 13 time the notice was given to the Court, therefore, Rule 25(a) timeliness requirement was 14 met. See Fed. R. Civ. Pro. 25(a). 15 Next, substitution may be made by a successor only if the claim is not extinguished 16 by the death of the named party. Fed.R.Civ.P. 25(a)(1). The issue of survivability is a 17 matter of federal law. Servidone Const. Corp. v. Levine, 156 F.3d 414 (2nd Cir. 1998); 18 Wright v. USAA Savings Bank, 2019 WL 6341174 *1 (E.D.Cal. Nov. 27, 2019). Courts 19 which have examined the survivability of TCPA claims have determined that because the 20 TCPA is a remedial statute, claims under this statute are not extinguished by a plaintiff’s 21 death. See Sharp v. Ally Financial, Inc., 328 F.Supp. 3d 81, 97 (W.D. New York, Sept. 22 10, 2018)(holding that claims brought pursuant to TCPA did not extinguish upon 23 plaintiff’s death because TCPA is primarily remedial in nature); Van Patten v. Vertical 24 Fitness Group, LLC, 847 F.3d 1037, 1047 (9th Cir. 2017)(“Because the TCPA is a 25 remedial statute intended to protect consumers from unwanted automated telephone calls 26 and messages, it should be construed in accordance with that purpose.”) 27 Finally, the Estate of Kerry O’Shea, through Sharlene O’Shea, is the proper party 28 for substitution. The Court looks to California law to determine whether a party is proper 1 for substitution. Chalfant v. United of Omaha Life Insurance Company, 2016 WL 2 4539453 *2 (N.D. Cal. 2016)(“Although Rule 25 (a) is a procedural rule dictating the 3 manner by which substitution may occur in federal courts, ‘[t]he question of who is a 4 proper party... is a substantive issue, for which we must rely upon state law.’”) Under 5 California Code of Civil Procedure § 377.11, a “’decedent's successor in interest’ means 6 the beneficiary of the decedent's estate or other successor in interest who succeeds to a 7 cause of action.” C.C.P. § 377.11. A party may demonstrate that a successor in interest 8 is the proper beneficiary by providing a declaration. Willis v. Barnhart, 2005 WL 9 1082757 at *4 (N.D. Cal. May 9, 2005). “[A]ll property, real or personal, wherever 10 situated, acquired by a married person during the marriage while domiciled in this state is 11 community property.” Cal. Fam. Code § 760; see also Cal. Fam. Code § 780 12 (Settlements or awards from personal injury lawsuits are classified as community 13 property in California if the lawsuit was initiated during the marriage.) The surviving 14 spouse is entitled to his or her share of community property when a decedent dies 15 intestate in California. Cal. Prob.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 THE ESTATE OF KERRY O’SHEA, Case No.: 14cv894-L-RBB through SHARLENE O’SHEA, on behalf 12 of itself and all others similarly situated, CLASS ACTION 13 Plaintiffs, ORDER GRANTING PLAINTIFF’S 14 v. RENEWED JOINT MOTION TO 15 SUBSTITUTE THE ESTATE OF AMERICAN SOLAR SOLUTION, INC., KERRY O’SHEA FOR THE NAMED 16 Defendant. AND DECEASED CLASS 17 REPRESENTATIVE KERRY O’SHEA [Doc. 170] 18
19 Pending in this certified class action alleging violation of the Telephone Consumer 20 Protection Act, 47 U.S.C. § 277 is a Renewed Motion to Substitute the Estate of Kerry 21 O’Shea for the named and Deceased Class Representative Kerry O’Shea. 22 I. BACKGROUND 23 This case is a class action alleging Defendant American Solar Solution, Inc. 24 (“Defendant”) violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 25 227 et seq., by using an automatic telephone dialer system (“ATDS”) to place 26 telemarketing calls to cell phones. Defendant is in the business of selling solar energy 27 equipment to residential and commercial customers. To market its products and services, 28 1 Defendant used a ViciDial predictive dialer to contact phone numbers uploaded into the 2 dialer. Defendant purchased these telephone numbers from several different companies 3 that sell lists of phone numbers that connect to members of a population meeting certain 4 demographic criteria. Per Plaintiff’s expert’s report, Defendant made 897,534 calls to 5 220,007 different cell phone numbers. Defendant has no evidence indicating any of the 6 alleged call recipients provided prior express consent to receive these calls. 7 Defendant placed fifteen calls to named Plaintiff Kerry O’Shea’s (“Plaintiff”) cell 8 phone. Plaintiff was appointed class representative of this litigation on March 2, 2017. 9 (See ECF No. 88 at 9). On the same day, class certification was granted by this Court for 10 the following class: 11 All individuals in the United States who were called by or on behalf of Defendant; using the ViciDial predictive dialer; on a cellular telephone 12 number, between November 22, 2012 and August 22, 2015. 13 [ECF No. 88 at 9.] 14 Kerry O’Shea passed away intestate on August 11, 2019, in Sausalito, California. 15 (See Motion Ex A Certificate of Death for Kerry O’Shea. Sharlene O’Shea is the sole 16 beneficiary of her late husband’s estate and brings this motion seeking substitution of the 17 Estate of Kerry O’Shea, through Sharlene O’Shea, as the Class Representative. 18 II. LEGAL STANDARD 19 Under Federal Rules of Civil Procedure 25(a)(1) the court may order substitution 20 of the proper party “[i]f a party dies and the claim is not extinguished.” 21 Fed.R.Civ.P.25(a)(1). If the court determines that a party has met the requirements of 22 Rule 25, “[t]he substituted party steps into the same position as [the] original party.” 23 Hilao v. Estate of Marcos, 103 F.3d 762, 766 (9th Cir. 1996). “In deciding a motion to 24 substitute under Rule 25(a)(1), a court must consider whether: (1) the motion is timely; 25 (2) the claims pled are extinguished; and (3) the person being substituted is a proper 26 party.” Smith v. Specialized Loan Servicing, LLC, 2017 WL 4050344 *2 (S.D. Cal. 27 2017)(internal citations omitted). 28 1 When a party is substituted in a class action, a court must also determine whether 2 the new party meets the typicality and adequacy requirements of Rule 23(a)(3) and (4). 3 Nunez v. BAE Systems San Diego Ship Repair Inc., 292 F.Supp.3d 1018, 1062 (S.D. Cal. 4 Nov. 14, 2017). 5 III. DISCUSSION 6 The Court finds that the requirements of Rule 25(a) have been met. First, the 7 motion was timely filed. Under Rule 25, “[i]f a motion is not made within 90 days after 8 service of a statement noting the death, the action by or against the decedent must be 9 dismissed.” Fed.R.Civ.P. 25(a); Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). On 10 January 29, 2021, the parties gave the Court notice of Kerry O’Shea’s death when they 11 filed a Joint Motion to Substitute Sharlene O’Shea for her Late Spouse and Deceased 12 Class Representative Kerry O’Shea. (Doc. No. 163). The Motion was filed at the same 13 time the notice was given to the Court, therefore, Rule 25(a) timeliness requirement was 14 met. See Fed. R. Civ. Pro. 25(a). 15 Next, substitution may be made by a successor only if the claim is not extinguished 16 by the death of the named party. Fed.R.Civ.P. 25(a)(1). The issue of survivability is a 17 matter of federal law. Servidone Const. Corp. v. Levine, 156 F.3d 414 (2nd Cir. 1998); 18 Wright v. USAA Savings Bank, 2019 WL 6341174 *1 (E.D.Cal. Nov. 27, 2019). Courts 19 which have examined the survivability of TCPA claims have determined that because the 20 TCPA is a remedial statute, claims under this statute are not extinguished by a plaintiff’s 21 death. See Sharp v. Ally Financial, Inc., 328 F.Supp. 3d 81, 97 (W.D. New York, Sept. 22 10, 2018)(holding that claims brought pursuant to TCPA did not extinguish upon 23 plaintiff’s death because TCPA is primarily remedial in nature); Van Patten v. Vertical 24 Fitness Group, LLC, 847 F.3d 1037, 1047 (9th Cir. 2017)(“Because the TCPA is a 25 remedial statute intended to protect consumers from unwanted automated telephone calls 26 and messages, it should be construed in accordance with that purpose.”) 27 Finally, the Estate of Kerry O’Shea, through Sharlene O’Shea, is the proper party 28 for substitution. The Court looks to California law to determine whether a party is proper 1 for substitution. Chalfant v. United of Omaha Life Insurance Company, 2016 WL 2 4539453 *2 (N.D. Cal. 2016)(“Although Rule 25 (a) is a procedural rule dictating the 3 manner by which substitution may occur in federal courts, ‘[t]he question of who is a 4 proper party... is a substantive issue, for which we must rely upon state law.’”) Under 5 California Code of Civil Procedure § 377.11, a “’decedent's successor in interest’ means 6 the beneficiary of the decedent's estate or other successor in interest who succeeds to a 7 cause of action.” C.C.P. § 377.11. A party may demonstrate that a successor in interest 8 is the proper beneficiary by providing a declaration. Willis v. Barnhart, 2005 WL 9 1082757 at *4 (N.D. Cal. May 9, 2005). “[A]ll property, real or personal, wherever 10 situated, acquired by a married person during the marriage while domiciled in this state is 11 community property.” Cal. Fam. Code § 760; see also Cal. Fam. Code § 780 12 (Settlements or awards from personal injury lawsuits are classified as community 13 property in California if the lawsuit was initiated during the marriage.) The surviving 14 spouse is entitled to his or her share of community property when a decedent dies 15 intestate in California. Cal. Prob. Code § 6401(a). 16 Sharlene O’Shea filed a declaration in which she states she was legally married to 17 Kerry O’Shea at the time the lawsuit was initiated, and at the time of his passing. 18 (Declaration of Sharlene O’Shea Doc No. 163-1). Kerry O’Shea did not have any 19 children, accordingly, Sharlene O’Shea is the sole beneficiary of the community property 20 interests and is the successor in interest to his claims in the present action. C.C.P. § 21 377.11. Accordingly, Sharlene O’Shea, as the representative of the Estate of Kerry 22 O’Shea, is the proper party to substitute for Kerry O’Shea. 23 The Court further finds that Sharlene O’Shea, as the representative of the Estate of 24 Kerry O’Shea, meets the typicality and adequacy requirements of Rule 23(a). The 25 typicality requirement can be met if “the claims or defenses of the representative parties 26 are typical of the claims or defenses of the class.” Castillo v. Bank of America, NA, 980 27 F.3d 723, 729 (9th Cir. 2020)(citing Fed.R.Civ.P. 23(a)(3)). “Under the rule's permissive 28 standards, representative claims are ‘typical’ if they are reasonably co-extensive with 1 those of absent class members; they need not be substantially identical.” Hanlon v. 2 Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998), overruled on other grounds by Wal- 3 Mart Stores, Inc., v. Dukes, 564 U.S. 338 (2011). The Court previously determined that 4 Kerry O’Shea’s claims were typical of the entire class, and no substantive changes were 5 made to those claims, therefore the claims meet the typicality requirement if Sharlene 6 O’Shea steps into his position in the action. See Hilao, 103 F.3d at 766. 7 When considering the adequacy of a class representative, the Court must determine 8 whether “the representative parties will fairly and adequately protect the interests of the 9 class.” Fed.R.Civ.P. 23(a)(4). “The proper resolution of this issue requires that two 10 questions be addressed: (a) do the named plaintiffs and their counsel have any conflicts of 11 interest with other class members and (b) will the named plaintiffs and their counsel 12 prosecute the action vigorously on behalf of the class?” In re Mego Fin. Corp. Sec. Litig., 13 213 F.3d 454, 462 (9th Cir.2000). 14 Sharlene O’Shea stated in her declaration that she wishes “to proceed with [her] 15 late spouse’s claim as the class representative, and will assume all roles and 16 responsibilities of said duties.” (Sharlene O’Shea Declaration ¶5.) There is no evidence 17 to suggest that she and her counsel have any conflicts of interest with other class 18 members. The case has been vigorously litigated, with over eighteen settlement related 19 conferences resulting in the pending class action settlement. (Renewed Joint Motion for 20 Prelim. Approval of Amended Class Action Settlement at 5 [Doc No. 171-1.]) There is 21 no indication that substitution of the Estate of Kerry O’Shea through Sharlene O’Shea in 22 place of Kerry O’Shea will change the vigor with which the parties will continue to 23 litigate this case. 24 Accordingly, the Court finds that Sharlene O’Shea acting through the Estate of 25 Kerry O’Shea satisfies the requirements of both Rule 25(a) and the typicality and 26 adequacy requirements of Rule 23(a). 27 // 28 // 1 IV. CONCLUSION 2 For the foregoing reasons, the Court grants the Motion to Substitute the Estate of 3 || Kerry O’Shea for the Named and Deceased Class Representative Kerry O’ Shea. 4 IT IS SO ORDERED. 5 ||Dated: October 15, 2021 pee ep? 7 H . James Lorenz, 3 United States District Judge
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