Postpichal v. Cricket Wireless, LLC

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8

10 JAMIE POSTPICHAL, et al., 11 Plaintiffs, No. C 19–07270 WHA

12 v. ORDER GRANTING MOTION 13 CRICKET WIRELESS, LLC, TO DISMISS CLRA CLAIMS 14 Defendant.

15 16 17 California’s Consumer Legal Remedies Act bans certain practices that the California 18 legislature has deemed to be “unfair” or “deceptive.” Plaintiffs allege claims under CLRA 19 Sections 1170(a)(5), (7), and (9), which prohibit misleading representations and 20 advertisements. Plaintiffs filed this lawsuit with CLRA claims for injunctive relief only, 21 waited 30 days, then amended their complaint to include damages claims. Plaintiffs have not 22 alleged that a CLRA notice was sent to Cricket with regard to this matter prior to amending the 23 complaint to include damages. 24 CLRA has a specific notice requirement set out in 1782(d):

25 An action for injunctive relief brought under the specific provisions of Section 1770 may be commenced without 26 compliance with subdivision (a). Not less than 30 days after the commencement of an action for injunctive relief, and after 27 compliance with subdivision (a), the consumer may amend his or her complaint without leave of court to include a request for be applicable if the complaint for injunctive relief is amended to 1 request damages. 2 Subdivision (a) requires:

3 (a) Thirty days or more prior to the commencement of an action for damages pursuant to this title, the consumer shall do the 4 following:

5 (1) Notify the person alleged to have employed or committed methods, acts, or practices declared unlawful by 6 Section 1770 of the particular alleged violations of Section 1770.

7 (2) Demand that the person correct, repair, replace, or otherwise rectify the goods or services alleged to be in violation of 8 Section 1770.

9 The notice shall be in writing and shall be sent by certified or registered mail, return receipt requested, to the place where the 10 transaction occurred or to the person's principal place of business within California. 11 12 Plaintiffs have not fulfilled this notice requirement. The initiation of the lawsuit itself 13 does not provide notice under subdivision (a). Plaintiffs lean on a prior CLRA notice sent to 14 Cricket in 2015 in a case that was subsequently dismissed. Though the claimant would be a 15 member of the proposed class and the claims there paralleled the present claims, that notice 16 arose from a different lawsuit long before the initiation of this matter. This does not satisfy 17 CLRA’s requirement because that notice did not involve “the consumer[s]” who have brought 18 the current claims. 19 Nor does the fact that Cricket received general complaints from consumers prior to the 20 filing of this lawsuit (including putative class members that are not putative class 21 representatives) satisfy CLRA’s notice requirement either. 22 While Cricket cannot credibly claim that it was not on actual notice of the bad acts herein 23 alleged, the legislative intent of Section 1782(d) — allowing time for defendants to correct 24 violations in light of the specter of a CLRA lawsuit before plaintiffs pursue damages — serves 25 a vital role in promoting efficient resolution of alleged CLRA violations. Whether Cricket 26 would correct its violations with notice at this point seems unlikely, but the procedural 27 requirements set out by CLRA are unyielding and must be followed. 1 The failure to give notice does not render plaintiffs’ claims unrevivable. The California 2 court of appeal has held: 3 [The notice] requirement exists in order to allow a defendant to avoid liability for damages if the defendant corrects the alleged 4 wrongs within 30 days after notice, or indicates within that 30-day period that it will correct those wrongs within a reasonable time. 5 A dismissal with prejudice of a damages claim filed without the requisite notice is not required to satisfy this purpose. Instead, the 6 claim must simply be dismissed until 30 days or more after the plaintiff complies with the notice requirements. If, before that 7 30-day period expires the defendant corrects the alleged wrongs or indicates it will correct the wrongs, the defendant cannot be held 8 liable for damages. 9 Morgan v. AT&T Wireless Servs., Inc., 177 Cal. App. 4th 1235, 1261 (2009). 10 Mazza v. Am. Honda Motor Co. reversed a district court’s blanket application of CLRA 11 to out of state class members, acknowledging that “foreign states have a strong interest in the 12 application of their laws to transactions between their citizens and corporations doing business

13 within their state” and holding that “each class member's consumer protection claim should be

v 14 governed by the consumer protection laws of the jurisdiction in which the transaction took

15 place.” 666 F.3d 581, 594 (9th Cir. 2012). If plaintiffs give notice and decide to file a new A 16 CLRA action, plaintiffs should be aware that the undersigned is unlikely to permit out-of-state

17 plaintiffs to submit CLRA claims.

4 18 Plaintiffs’ CLRA claims are DISMISSED. A further order on the motion to dismiss 19 plaintiffs’ RICO claims is forthcoming. 20 21 IT IS SO ORDERED. 22 23 Dated: June 7, 2021 24 25 (Cs Pea %6 ILLIAM ALSUP UNITED STATES DISTRICT JUDGE 27 28