In Moser v. Health Ins. Innovations, Inc., No. 17-cv-1127-WQH-KSC, 2019 U.S. Dist. LEXIS 132790 (S.D. Cal. Aug. 2, 2019), Judge Hayes certified a TCPA class.
Under the TCPA, each plaintiff was injured when an autodialed or prerecorded call was sent to their wireless or residential phone. Whether the autodialed or prerecorded call came from a device located in the offices of Donisi Jax, HIC, or a non-party lead generator may ultimately affect the liability of the Defendants for the TCPA violation, but it does not affect the nature of the underlying injury suffered by each class member. See Hanlon, 150 F.3d at 1019 (“The existence of shared legal issues with divergent factual predicates is sufficient [for commonality], as is a common core of salient facts coupled with disparate legal remedies within the class.”). Next the Court turns [*20] to common questions. In this case, whether or not Donisi Jax, Helping Hand, or one of its alleged agents used an automatic telephone dialing system or prerecorded voice to transmit calls to the wireless numbers of Subclass One is a common question for Subclass One. Whether Donisi Jax, Helping Hand, or one of its alleged agents transmitted a prerecorded call to the residential phone of members of Subclass Two is a common question for Subclass Two. Answers to both questions will drive resolution of the case. See Dukes, 131 S. Ct. at 2551. With respect to determinations of agency among the Defendants and the lead generators, Plaintiff asserts that this case can be resolved on a class-wide basis by “simple reference to phone bills” and “Plaintiff[‘s] . . . generalized evidence regarding the making and content of Defendants’ telemarketing calls and the agency relationship between the Defendants.” (ECF No. 103-1 at 26). Defendants contend that agency determinations among the Defendants will have to be made on a class member-by-class member basis, but Defendants have failed to explain why the fact finder cannot make a single liability determination for each Defendant after Plaintiff presents evidence of each Defendant’s [*21] relationship with each other Defendant and the non-party lead generators. For example, any evidence Plaintiff presents regarding the alleged agency relationship between HII and Donisi Jax, and Donisi Jax and HIC, will presumably be applicable to all other class members who were called by HIC and live transferred to Donisi Jax for the purpose of selling a short-term non-ACA-compliant medical insurance plan managed by HII. Any findings the Court makes regarding the alleged agency relationship between HII, Donisi Jax, and HIC will further the litigation by generating answers common to members of the class. [Citations Omitted, Ed.] The Court finds that Plaintiff has established the existence of common questions sufficient to satisfy Rule 23(a)(2). See Ellis, 657 F.3d at 981 (“The requirements of Rule 23(a)(2) have ‘been construed permissively,’ and [a]ll questions of fact and law need not be common to satisfy the rule.'”) (quoting Hanlon, 150 F.3d at 1019)). Plaintiff has satisfied commonality under Rule 23(a)(2).