In Banarji v. Wilshire Consumer Credit, 2016 WL 595323, at *3 (S.D.Cal., 2016), Judge Benitez denied class certification in a TCPA class action because the Plaintiff was not typical. The Plaintiff took out a loan with WCC, listing his cell phone number as ending in 0861 and his email address as “email@example.com”. He also listed his daughter, Plaintiff, as a reference and provided a different phone number for her. At some point in time, Mr. Banarji failed to make a payment to WCC, and WCC began calling the 0861 number to inquire about the debt. During the relevant time period, the 0861 phone was on a prepaid cell phone plan paid for by Plaintiff. As it turns out, the 0861 cell phone number and the firstname.lastname@example.org address were not Mr. Banarji’s; they belonged to Plaintiff. Plaintiff asserts she has had that phone number since 2012. WCC repeatedly called the 0861 number asking for Mr. Banarji. Also, in April 2014, an email exchange between WCC and email@example.com occurred, discussing a way to settle the debt. Yet, neither Plaintiff nor Mr. Banarji claim they participated in the exchange. Plaintiff claims that she had no involvement with Mr. Banarji’s loan, except to pay a bill for him on occasion. In addition, Plaintiff asked WCC to stop calling her cell phone multiple times, and asked Mr. Banarji to also convey the same message to WCC.
Plaintiff argues that Defendant’s motion is premature and that she should be permitted to conduct discovery on the certification issue in order to present “deposition testimony of defendant’s technology expert(s), declarations of class members and Plaintiffs technology expert(s).” (Opp’n 13.) The Court notes that limited discovery has already been conducted—particularly, the depositions of Plaintiff and her father have been taken. In addition, the evidence Plaintiff seeks to discover will not affect the uniqueness of Plaintiff’s case. The Court therefore finds it appropriate to address Defendant’s arguments at this time. . . . While it is true that Plaintiff was probably annoyed by unwanted robocalls, which would be the expected sentiment of the proposed class, Plaintiff’s case is unique to herself and perhaps a small subset of the class. Plaintiff’s phone number was given to WCC by her father. Plaintiff’s father indicated that Plaintiff’s phone number was in fact his own. And, based upon the circumstances of how the Banarji family looks after one another, Plaintiff’s father may be a non-subscriber customary user of the phone line, which would give him the authority to consent to receiving robocalls on that line. As such, the majority of the proposed class may suffer as Plaintiff will be engrossed with disputing WCC’s arguments regarding Plaintiff’s individual case. See Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (quoting Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 180 (2d Cir. 1990) (“[A] named plaintiff’s motion for class certification should not be granted if ‘there is a danger that absent class members will suffer if their representative is preoccupied with defenses unique to it.”’)),