In Bickelmann v. Assil Sinskey Eye Institute (2008) 2008 WL 5207090, the Second District Court of Appeal declined to certify a ‘junk-fax’ class under the TCPA because its ‘established business relationship’ requirement necessitated individualized questions of fact, explaining:

Plaintiff contends that the burden is on the drafter or sender of the advertisement, not the putative class member, to show an established business relationship.  But even assuming that is correct, it does not change the individualized nature of the necessary proof because in determining whether common issues predominate, the trial court must consider the proof necessary, not just to the plaintiff’s claims, but also the defendant’s affirmative defenses.  (Walsh v. IKON Office Solutions, Inc.  (2005) 148 Cal.App.4th 1440, 1450).  Therefore, to establish their burden on the consent and the established business relationship issues, [defendants] would be required to produce individual records showing the requisite consent from or business relationship with each putative class member.  They would also be entitled to cross-examine individual putative class members concerning the issue.  Moreover, once the [defendant] submitted a record showing consent or a business relationship, the putative class member to whom the record pertained would have a right to submit individual evidence disputing the existence of any such consent or relationship.  The necessity for such highly individualized proof on the consent and the established business relationship issues supports the trial court’s conclusion that common issues did not predominate over those which must be tried on an individual basis.   

This decision is unpublished, and not citeable.  (Rule of Court 8.1115)