In Solberg v. Victim Services, Inc, dba Corrective Solutions, 2018 WL 6567072 (N.D.Cal., 2018), Judge Chhabria certified an FDCPA class, but declined to award injunctive relief under the UCL because the putative class was unlikely to be the subject of further collection activity.
The plaintiffs also seek restitutionary and injunctive relief under the UCL. As an initial matter, the plaintiffs do not have standing to seek injunctive relief, because their threatened injury is not “sufficiently likely to occur.” Melendres v. Arpaio, 695 F.3d 990, 997 (9th Cir. 2012). It is unlikely that these plaintiffs will bounce checks in the future, whether inadvertently or otherwise. And in the event they do inadvertently bounce checks, it is unlikely that they will then be pulled into the diversion program. While there is a written policy governing who is placed in the program, it is a different written policy from the one the plaintiffs were subjected to – and it changed in response to precisely the kinds of claims the plaintiffs are making in this case. See Armstrong v. Davis, 275 F.3d 849, 861 (9th Cir. 2001) (explaining that a plaintiff may establish standing where the plaintiff’s injury stemmed from a written policy in place “at the time of the injury”), abrogated on other grounds by Johnson v. California, 543 U.S. 499, 504-05 (2005).Despite not having standing to pursue injunctive relief, the plaintiffs may still seek restitution. For purposes of restitution, the plaintiffs seek certification of a slightly narrower class than for the FDCPA claim – a class of people who actually paid fees to the defendants after receiving the letter, rather than a class of all people who received the letter.The defendants argue that restitution is only available as a follow-on to an award of injunctive relief under section 17203, but the California Supreme Court has rejected that position. ABC Int’l Traders, Inc. v. Matsushita Elec. Corp., 14 Cal. 4th 1247, 1271 (1997) (concluding that section 17203 authorizes an award of restitution “whether or not the court also enjoins future violations”); see also Clayworth v. Pfizer, Inc., 49 Cal. 4th 758, 790 (2010) (describing injunctive and restitutionary relief as “wholly independent remedies”). Although a subsequent California Supreme Court case explains that restitution is “ancillary” to injunctive relief, it does not suggest that an injunction is a prerequisite to an award of restitution. See Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 337 (2011); see also Maraventano v. Nordstrom, Inc., 2013 WL 5936183, at *5 (S.D. Cal. Nov. 1, 2013). Therefore, Hofstetter v. Chase Home Finance, LLC, 2011 WL 1225900 (N.D. Cal. Mar. 31, 2011), and Deitz v. Comcast Corp., 2006 WL 3782902 (N.D. Cal. Dec. 21, 2006), on which the defendants rely, were incorrectly decided.The analysis of whether class certification is appropriate for the restitution claim under the UCL is otherwise comparable to the analysis for the FDCPA class. The defendants had previously argued that the UCL class was not sufficiently cohesive because only some of the class had been harmed by the letter, but the class is now limited to people who “all suffered the same injury” by virtue of having paid fees to the defendants. Evon, 688 F.3d at 1029. Accordingly, the plaintiffs may represent a UCL class pursuant to Rule 23(b)(3) with the following definition: All persons in California to whom the defendants sent an initial collection demand in connection with a returned check at any time from September 1, 2011, to May 7, 2015, and who subsequently paid any fees to the defendants in response to that letter.