Judge Lon F. Hurwitz, Case 23-01315890 2023-08-04 Tentative Ruling

Judge: Lon F. Hurwitz, Case: 23-01315890, Date: 2023-08-04 Tentative Ruling

Motion to Certify Class

Motion for Class Certification

Moving Parties: Defendants Michelle Churchill and Fernando Hernandez

Responding Party: None (unopposed)

SERVICE: No proof of service provided

RELIEF SOUGHT: Defendants Michelle Churchill and Fernando Hernandez, on behalf of themselves and all other defendants in this action, move for an order: (1) certifying a class of all defendants named in this action; (2) appointing Churchill and Hernandez as Class representatives; and (3) appointing Labaton Sucharow LLP and Scott+Scott Attorneys at Law LLP as Class Counsel.

UPCOMING EVENTS: Case Management Conference, August 17, 2023.

FACTS/OVERVIEW: This is an action for declaratory and injunctive relief regarding the enforcement of arbitration agreements. On March 13, 2023, Plaintiff Epson America, Inc. (“Epson”) filed a Complaint, OCSC Case No. 2023-01313431, against Defendant Matt Adams and 2,160 other named individual defendants (collectively, “Adams Defendants”). (ROA 2). On the same day, Epson filed a related Complaint, OCSC Case No. 2023-01315890, against Defendant Graesen Arnoff and 1,832 other named individual defendants (collectively, “Arnoff Defendants”). (ROA 2).

Epson alleges Defendants are purported purchasers of Epson printers who agreed to participate in a frivolous mass arbitration scheme by their counsel, Labaton Sucharow LLP, that seeks to extort a large settlement under threat of paying tens of millions of dollars in individual arbitration filing fees. According to Epson, Labaton Sucharow is asserting that the Adams Defendants and Arnoff Defendants are “individuals who purchased Epson printers and wish to use less expensive third-party ink,” but the Epson software and firmware updates “disable” the printers when non-Epson replacement cartridges are installed.

Epson alleges that in 2022, Labaton Sucharow advised that, absent an acceptable resolution, its 13,000-plus clients intended to commence individual arbitrations against Epson pursuant to the operative End User Software License Agreement that allegedly governs each Epson-consumer relationship. Epson alleges that on March 6, 2023, Labaton Sucharow proceeded with the filing of 3,994 individual arbitrations with JAMS on behalf of the Adams Defendants and Arnoff Defendants.

According to Epson, Defendants’ counsel has not provided any evidence supporting their assertion that the Adams Defendants and Arnoff Defendants entered into any transaction with Epson that would involve the End User Software License Agreement, or the arbitration provision contained therein. Epson states that the filing of these individual arbitration cases may trigger requirements for Epson to pay upwards of $20 million in filing fees simply to avoid default, even though neither the Adams Defendants nor the Arnoff Defendants have any basis to demand arbitration.

On June 7, 2023, the Adams Defendants (ROA 48) and the Arnoff Defendants (ROA 46) separately filed the current Motions for Class Certification. The motions are unopposed.

PROCEDURAL ISSUE

Neither the Adams Defendants nor the Arnoff Defendants have complied with the requirement of California Rules of Court, rule 3.1300, which requires that a proof of service of the moving papers be filed with the court no later than five (5) court days before the date set for the hearing. (CRC rule 3.1300(c).) The Adams and Arnoff Defendants have also failed to provide a proof of service in compliance with Code of Civil Procedure section 1005 with their moving papers.

Considering the lack of opposition by Epson to these motions, the Adams and Arnoff Defendants’ failure to provide their respective proofs of service is problematic. Absent the proofs of service, it cannot be determined when the instant motions were served, or even if they were served, on Epson.

Under CRC Rule 3.764(a), any party may file a motion to certify a class. However, the notice of a motion to certify must be filed and served on all parties to the action at least 28 calendar days prior to the date of the hearing. (CRC, rule 3.784(c)(1).) Any opposition must be served and filed at least 14 calendar days before the noticed hearing, and any reply must be filed and served at least five calendar days before the hearing. (Ibid.) Notably, Rule 3.784 also states that the provisions of Code of Civil Code section 1005 otherwise apply. (Ibid.)

Here, in light of the serious nature of the allegations in Epson’s Complaints, the alleged amount of the monetary exposure for possible arbitration fees, and the claims made by Defendants in their moving papers, it is reasonable to assume that Epson would oppose these motions. Indeed, in its recent response to Defendants’ proposed case management plan, Epson argued that Defendants’ class certification motions are meritless as well as legally and procedurally improper. (See, ROA 84). The presentation of such a substantive opposing argument by Epson in that filing is indicative of the fact that the lack of opposition to the instant motions is probably not intentional.

Since the Adams and Arnoff Defendants have not established that their respective motions were properly and timely served on Epson, the Court must continue the hearings on these Motions.

RULING:

Due to their failure to file a proof of service in compliance with California Rules of Court, rule 3.1300(d), the Motions by Defendants in the Adams and Arnoff cases are CONTINUED to September 1, 2023, at 1:30 p.m. in Department CX103.

Clerk to give Notice.