In Stone v. Advance America, 278 F.R.D. 562 (S.D.Cal. 2012), Judge Battaglia refused to certify a class of payday loan customers who claimed that the defendant violated the California Deferred Deposit Transaction Law (“CDDTL”) Cal. Fin.Code § 23005 in its dealing with Spanish-speaking customers. Judge Battaglia found that whether the customers primarily spoke Spanish in their respective transactions lead to individualized inquiries sufficient to defeat class certification.
The problem with Plaintiffs’ proposed class is that “proof of commonality necessarily overlaps” with Plaintiffs’ claim on the merits *570 that Spanish loan documents were not given to customers who principally spoke Spanish during their transactions. See Wal–Mart, 131 S.Ct. at 2552. The only way to determine if a specific customer principally spoke Spanish is to evaluate the particular transaction. The merits of a customer’s claim dovetails precisely with their membership in the class, thus, the commonality requirement is not met. See id.; Crosby v. Soc. Sec. Admin., 796 F.2d 576, 579–80 (1st Cir.1986) (the standard of statute, “within a reasonable time,” “makes class members impossible to identify prior to individualized fact finding and litigation”); Forman, 164 F.R.D. at 403–04 (class definition “requires addressing the central issue of liability to be decided in the case. Determining a membership in the class would essentially require a mini-hearing on the merits of each case.”; “Plaintiff’s proposed ‘common’ questions are inherently individualized, requiring inquiry into the particular circumstances of each” incident); Metcalf v. Edelman, 64 F.R.D. 407, 409 (N.D.Ill.1974) (denying class when definition “calls for a conclusion” “before an adequate determination can be made of who is a class member”). ¶ Each potential class member has a unique ability to speak both Spanish and English, and that ability can range from perfect fluency, through a mix of “Spanglish,” to none. Because of the wide range of language skills, it is impossible to classify which customers “principally spoke” Spanish without also determining if their individual claim has merit. Even though each proposed member will rely on the “ same theory of recovery,” the claims must be resolved on a transaction-by-transaction basis. Liberty Lincoln Mercury v. Ford Mktg. Corp., 149 F.R.D. 65, 76 (D.N.J.1993). Each customer will have a different experience with Defendants’ corporate policy based on facts unique to that individual. ¶ There is “no cohesion among the members” because their individual experiences were quite varied. See Stearns, 655 F.3d at 1019. Any exploration of what was said in Spanish by each customer and teller is necessarily fact intensive. This case is more like Wal–Mart, 131 S.Ct. at 2551, where the Court found that the dissimilarities in the proposed class “impeded the generation of common answers” rather than justified resolution based on common evidence. ¶ The problem also raises due process concerns. The Court agrees with Defendants that they are entitled to examine the individual customers. The contradictions between Rodriguez’s memory of events and the employee who assisted her illustrates that credibility is a critical issue. Jimenez v. Domino’s Pizza, Inc., 238 F.R.D. 241, 252 (C.D.Cal.2006) (denying class certification motion when individual questions of credibility involved). . . ¶ Plaintiffs suggest that the Court could certify an injunction class to determine liability, then send a notice to potential class members who would then self-identify with sworn affidavits that they principally spoke Spanish when they took out payday loans at Defendants’ stores. ¶ The Court considered but rejected this approach. Baby Neal v. Casey, 43 F.3d 48, 58 (3d Cir.1994) (Rule 23(b)(2) class seeks “to define the relationship between the defendant and the ‘world at large’ ”); Holmes, 706 F.2d at 1155–57 (“Even class members who opted out could not avoid the effects of the judgment. A (b)(2) injunction would enjoin all illegal actions, and all class members would necessarily be affected by such broad relief.”); see Manual for Complex Litigation § 32.42 (“Less precision is required in the definition of a Rule 23(b)(2) class”); id. § 21.222 (stating that definition of Rule 23(b)(3) class must be “precise, objective, and presently ascertainable” while a Rule 23(b)(1) or (b)(2) action “may not” because no notice is required). Commonality is a more significant concern for a Rule 23(b)(3) class action seeking damages because that rule requires that common issues “predominate” over individual issues; however, an injunction class must meet the Rule 23(a) prerequisite by raising a common question of law or fact. Even if the Court could certify an injunction class, problems remain. Both the CDDTL and the UCL permit injunctive relief. One form of relief could be to require Defendants to return fees on loans when Defendants violated the language provision. But the proper amount could only be decided by evaluating each transaction to ensure that the particular customer was entitled to restitution because their rights had been violated in specific loan transactions. See Crosby, 796 F.2d at 579–80 (statutory right to “timely” notice could be remedied in individual actions, but not by class injunction); see also Mazur v. eBay Inc., 257 F.R.D. 563, 567–68 (N.D.Cal.2009) (disavowing any reliance on self-identification when plaintiffs failed to propose an objective system to screen those who were actually injured).