Wollam v. Transamerica Life Insurance Company

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 CYNTHIA WOLLAM, Case No. 21-cv-09134-JST 8 Plaintiff, ORDER DENYING CLASS 9 v. CERTIFICATION 10 TRANSAMERICA LIFE INSURANCE Re: ECF No. 56 COMPANY, [11] Defendant. [12] 13 Before the Court is Plaintiff Cynthia Wollam’s motion for class certification. ECF No. 56. 14 The Court will deny the motion. 15 I. BACKGROUND 16 This is a case about the rights of life insurance policyholders who fail to pay their 17 premiums on time. Sections 10113.71 and 10113.72 of the California Insurance Code (“the 18 Statutes”), effective January 1, 2013, “changed the grace period and notice requirements for life 19 insurance policies in California.” McHugh v. Protective Life Ins. Co., 12 Cal. 5th 213, 225 (2021). 20 The Statutes established a sixty-day grace period after policyholders miss a premium payment; 21 granted policy owners the right to designate at least one other person to receive notices of an 22 overdue premium or impending lapse or termination of their policy; and required insurers to mail 23 (1) a notice to policyholders and their chosen designees (if any) about a lapse within thirty days of 24 the missed payment and (2) a notice of any impending termination for nonpayment at least thirty 25 days before the policy is terminated. Cal. Ins. Code §§ 10113.71 , 10113.72. In 2021, the 26 California Supreme Court clarified insurance companies’ obligations under the Statutes, holding 27 that they “apply to all life insurance policies in force when [the Statutes] went into effect, 1 Plaintiff Cynthia Wollam alleges that, since January 2013, Defendant Transamerica Life 2 Insurance Company (“TLIC”) “has wrongfully terminated thousands of life insurance policies in 3 violation of” the Statutes. ECF No. 16 ¶ 1. Specifically, Wollam alleges that TLIC has failed “to 4 provide full 60-day grace periods contained in the policy”; failed “to mail compliant accurate and 5 timely 30-day pending lapse notices” to policy owners; failed “to provide annual notifications to 6 policy owners” of their rights to designate; wrongfully terminated policies in contravention of the 7 Statutes; and breached the Statutes and the terms of its policies in other respects. Id. ¶ 32 . She 8 alleges that these failures by TLIC constitute breach of contract with its insureds and violate 9 California’s unfair competition law (“UCL”), Cal. Bus. & Prof. Code § 17200 . Id. ¶¶ 71–91; ECF 10 No. 56 at 19–20. She seeks damages, restitution, and declaratory relief. ECF No. 16 ¶¶ 56–91. 11 Wollam now seeks to represent a class of beneficiaries whose California life insurance 12 policies Defendant Transamerica Life Insurance Company (“TLIC”) terminated for nonpayment 13 without providing the required protections. ECF No. 56 at 9–13. She defines the proposed class 14 as: 15 All beneficiaries who made a claim, or would have been eligible to make a claim, for the payment of benefits on Defendant’s life 16 insurance policies issued or delivered in California that lapsed or were terminated for nonpayment of premium on or after January 1, 17 2013, without Defendant first providing every notice, grace period, and offer of designation required by Insurance Code Sections 18 10113.71 and 10113.72. [19] Id. at 12 . 20 Wollam seeks to certify her proposed class under Rule 23(b)(2), Rule 23(b)(3), or Rule 21 23(c)(4) of the Federal Rules of Civil Procedure. ECF No. 56 at 13, 28. She also requests that the 22 firms of Nicholas & Tomasevic and Winters & Associates be appointed as class counsel. Id.at 3. 23 TLIC opposes class certification. ECF No. 57. TLIC argues that certification is not available 24 under Rule 23(b)(2) because the putative class seeks primarily monetary damages. Id. at15–17. 25 As for Rule 23(b)(3), TLIC argues that Wollam cannot represent the class because, among other 26 reasons, her claims are atypical of the class, and individual questions predominate over common 27 issues. Id. at 17–25. 1 II. JURISDICTION 2 This Court has jurisdiction under 28 U.S.C. § 1332 (a). 3 III. LEGAL STANDARD 4 A party seeking class certification bears the burden of demonstrating by a preponderance 5 of the evidence that the proposed class meets the numerosity, commonality, typicality, and 6 adequacy requirements of Rule 23(a) and at least one of the requirements of Rule 23(b). Willis v. 7 City of Seattle, 943 F.3d 882, 885 (9th Cir. 2019). 8 Here, Wollam relies upon both Rule 23(b)(2) and Rule 23(b)(3). Rule 23(b)(2) requires 9 that “the party opposing the class has acted or refused to act on grounds that apply generally to the 10 class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the 11 class as a whole . . . .” Fed. R. Civ. P. 23(b)(2). Rule 23(b)(3) requires “that the questions of law 12 or fact common to class members predominate over any questions affecting only individual 13 members, and that a class action is superior to other available methods for fairly and efficiently 14 adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). “The predominance inquiry of Rule 15 23(b)(3) asks ‘whether proposed classes are sufficiently cohesive to warrant adjudication by 16 representation.’” In re Wells Fargo Home Mortg. Overtime Pay Litig., 571 F.3d 953, 957 (9th Cir. 17 2009) (quoting Loc. Joint Exec. Bd. of Culinary/Bartender Tr. Fund v. Las Vegas Sands, Inc., 244 18 F.3d 1152, 1162 (9th Cir.2001)). “The focus is on the relationship between the common and 19 individual issues.” In re Wells Fargo Home Mortg. Overtime Pay Litig., 571 F.3d at 957 (internal 20 quotation marks and citation omitted). 21 “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the 22 certification stage.” Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013). 23 “Merits questions may be considered to the extent—but only to the extent—that they are relevant 24 to determining whether the Rule 23 prerequisites for class certification are satisfied.” Id. Courts 25 “must take the substantive allegations of the complaint as true” but “need not accept conclusory or 26 generic allegations regarding the suitability of the litigation for resolution through class action.” 27 Keilholtz v. Lennox Hearth Prods. Inc., 268 F.R.D. 330, 335 (N.D. Cal. 2010) (citations omitted). 1 IV. DISCUSSION 2 A. Rule 23(b)(2) 3 The Court first addresses Wollam’s motion for certification under Rule 23(b)(2). “Class 4 certification under Rule 23(b)(2) is appropriate only where the primary relief sought is declaratory 5 or injunctive.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 986 (9th Cir. 2011) (internal 6 quotation marks and citation omitted); see also Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 , 362 7 (2011) (emphasizing that “individualized monetary claims belong in Rule 23(b)(3)” and not in 8 Rule 23(b)(2)). This distinction protects the rights of absent class members because Rule 23(b)(2) 9 does not permit class members to opt out of the class or “even oblige the District Court to afford 10 them notice of the action.” Wal-Mart Stores, Inc., 564 U.S. at 362 . “The absence of these 11 protections in a class action predominantly for monetary damages violates due process.” Ellis, [12] 657 F.3d at 987 . 13 The Court finds that certification of this action under Rule 23(b)(2) is not appropriate 14 because Wollam seeks primarily monetary damages. Notably, this Court and several other district 15 courts have rejected Rule 23(b)(2) certification in analogous cases concerning the Statutes because 16 monetary damages were the primary requested relief. See, e.g., Siino v. Foresters Life Ins. & 17 Annuity Co., 340 F.R.D. 157 , 161 (N.D. Cal. 2022); Steen v. Am. Nat’l Ins. Co., 2023 WL 18 4004192, at *11 (C.D. Cal. June 14, 2023); Nieves v. United of Omaha Life Ins. Co., 2023 WL 19 2705836, at *7 (S.D. Cal. Mar. 28, 2023); Pitt v. Metro. Tower Life Ins. Co., 2022 WL 17972167 , 20 at *8–9 (S.D. Cal. Dec. 1, 2022); Moriarty v. Am. Gen. Life Ins. Co., 2022 WL 6584150 , at *3 21 (S.D. Cal. Sept. 27, 2022). Wollam’s motion for class certification of her declaratory relief claim 22 is therefore denied.1 23 B. Rule 23(b)(3) 24 The Court next considers Wollam’s motion for certification under Rule 23(b)(3). “Given 25 the relationship between Rule 23(a)’s commonality requirement and Rule 23(b)(3)’s 26 predominance requirement, courts often analyze those requirements together.” Siino, 340 F.R.D. 27 1 at 161–62. 2 1. Numerosity 3 Numerosity refers to Rule 23’s requirement that “the class [be] so numerous that joinder of 4 all members is impracticable.” Fed. R. Civ. P. 23(a)(1); see Floyd v. Saratoga Diagnostics, Inc., [5] 2021 WL 2139343 , at *3 (N.D. Cal. May 26, 2021) (explaining that “as a general rule . . . classes 6 of 40 or more are numerous enough” (internal quotation marks and citation omitted)). Wollam 7 argues that numerosity is met because according to TLIC’s records there are more than 1,000 8 putative class members. ECF No. 56 at 19. TLIC does not dispute that the proposed class is 9 sufficiently numerous. The Court finds that the numerosity requirement is satisfied. 10 2. Commonality and Predominance 11 Commonality refers to Rule 23’s requirement that “there [be] questions of law or fact 12 common to the class.” Fed. R. Civ. P. 23(a)(2). “[F]or purposes of Rule 23(a)(2) [e]ven a single 13 [common] question will do.” Wal-Mart Stores, Inc., 564 U.S. at 359 (internal quotation marks and 14 citation omitted). The common question “must be of such a nature that it is capable of classwide 15 resolution—which means that determination of its truth or falsity will resolve an issue that is 16 central to the validity of each one of the claims in one stroke.” Id. at 350 . 17 For certification under Rule 23(b)(3), the proposed class must also satisfy the requirement 18 that common questions “predominate over any questions affecting only individual members.” 19 Fed. R. Civ. P. 23(b)(3). “Considering whether questions of law or fact common to class members 20 predominate begins . . . with the elements of the underlying causes of action.” Erica P. John 21 Fund, Inc. v. Halliburton Co., 563 U.S. 804, 809 (2011) (internal quotation marks omitted). The 22 predominance inquiry requires that the putative class show that common questions predominate as 23 to each cause of action for which they seek class certification. See Berrien v. New Raintree 24 Resorts Int’l, LLC, 276 F.R.D. 355, 361 (N.D. Cal. 2011). 25 In short, “Rule 23(a)(2) asks whether there are issues common to the class, and Rule 26 23(b)(3) asks whether these common questions predominate.” Abdullah v. U.S. Sec. Assocs., Inc., [27] 731 F.3d 952, 957 (9th Cir. 2013) (internal quotation marks and citation omitted). a. Commonality [1] Wollam argues that her proposed class presents a common question: whether TLIC’s [2] failure to provide the required notices to policyholders voided TLIC’s attempts to terminate their [3] policies for nonpayment, leaving class members’ policies legally in effect. ECF No. 56 at 19. [4] Wollam reasons that the Court can determine on a classwide basis whether TLIC’s “systematic [5] noncompliance” with the Statutes left its insured’s policies in effect simply by interpreting the [6] Statutes. Id. TLIC responds that whether individual policies remain in effect cannot be [7] determined solely by examining the Statutes but instead must be determined based on [8] individualized inquiry into the circumstances of each policyholder. ECF No. 57 at 18–19. [9] The Court finds that Wollam satisfies the commonality requirement. The party seeking [10] certification “need only show that there is a common contention capable of classwide resolution— [11] not that there is a common contention that will be answered, on the merits, in favor of the class.” [12] Alcantar v. Hobart Serv., 800 F.3d 1047, 1053 (9th Cir. 2015) (internal quotation marks and [13] citation omitted). And the common question need not resolve the entire claim; rather, its “truth or [14] falsity [must] resolve an issue that is central to the validity of each one of the claims in one [15] stroke.” Wal-Mart Stores, Inc., 564 U.S. at 350 (emphasis added). This requirement [16] accommodates proposed classes that “share[] legal issues with divergent factual predicates . . . .” [17] In re Volkswagen “Clean Diesel” Mktg., 2022 WL 17730381 (N.D. Cal. Nov. 9, 2022) (citing [18] Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998)); accord Parsons v. Ryan, 754 19 F.3d 657, 675 (9th Cir. 2014) (holding that “commonality exists” where the circumstances of class [20] members “vary but retain a common core of factual or legal issues with the rest of the class” [21] (internal quotation marks and citation omitted)). Accordingly, Wollam must show that a common [22] question is central to the liability question for the whole proposed class—not that its answer [23] would, by itself, establish its claims. The question of whether TLIC had a prior policy of not [24] issuing required notices to policyholders before terminating their policies is an element of the [25] putative class’s breach-of-contract claim and its UCL claim and is common to the class. See [26] Nieves, 2023 WL 2705836 , at *4 (S.D. Cal. Mar. 28, 2023) (“Plaintiff identifies the following [27] common question: whether United engaged in a practice of not complying with the Statutes for 1 policies that were in force on or after January 1, 2013 and is therefore liable for breach-of-contract 2 and UCL claims . . . . Accordingly, Plaintiff has satisfied the commonality requirement.”). The 3 Court finds that the commonality requirement is satisfied. 4 b. Predominance 5 Under Rule 23(b)(3), plaintiffs must show “that the questions of law or fact common to 6 class members predominate over any questions affecting only individual members.” Fed. R. Civ. 7 P. 23 (b)(3). The Rule 23(b)(3) predominance requirement is “even more demanding” than Rule 8 23(a)’s commonality counterpart. Comcast Corp. v. Behrend, 569 U.S. 27, 34 (2013). To 9 determine whether a class satisfies the predominance requirement, courts must “pragmatically 10 compare[] the quality and import of common questions to that of individual questions.” Jabbari v. 11 Farmer, 965 F.3d 1001, 1005 (9th Cir. 2020). The Court begins by identifying “the elements of 12 the underlying cause of action.” Erica P. John Fund, Inc., 563 U.S. at 809 . 13 i. Breach of contract 14 Plaintiff’s breach of contract claim has four elements: “(1) the existence of the contract, (2) 15 plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting 16 damages to the plaintiff.” Oasis W. Realty, LLC v. Goldman, 51 Cal. 4th 811, 821 (2011) (citation 17 omitted). “Implicit in the element of damage is that the defendant’s breach caused the plaintiff’s 18 damage.” Troyk v. Farmers Grp., Inc., 171 Cal. App. 4th 1305, 1352 (2009) (emphasis in 19 original). Breach of contract claims thus “require a causal link between the breach and the 20 damages.” Steen, 2023 WL 4004192 , at *12 (citing Oasis W. Realty, LLC, 51 Cal. 4th at 821 ). 21 TLIC argues that Plaintiff cannot establish causation on a class-wide basis because the 22 circumstances of each policy’s termination were different. ECF No. 57 at 25–32. It argues, for 23 example, that some policyholders voluntarily allowed their policies to lapse, such that any lack of 24 notice was harmless;2 that TLIC provided a grace period in some instances such that policyholders 25 knew they could cure their non-payment; and that TLIC did provide the required notice to some [27] 2 The evidence in the record indicates that Wollam herself was aware that her policy would lapse 1 class members. In light of these differing circumstances, TLIC argues that causation of damages 2 for each putative class member would require policy-specific “mini-trial[s].” ECF No. 57 at 31. [3] Id. at 26–30. Wollam responds that she is not required to prove causation for each class member’s 4 breach of contract claim because TLIC’s violation of the Statutes precludes lapse for nonpayment. 5 ECF No. 56 at 14 (citing Thomas v. State Farm Life Ins. Co., 2021 WL 4596286 , at *1 (9th Cir. 6 Oct. 6, 2021)); see also ECF No. 61 at 9–14. In her view, “[t]he Statutes’ promise that policies 7 will not be terminated before compliance is incorporated by law as a term in the insurance 8 contract . . . establishing a breach of contract claim.” ECF No. 61 at 10 (emphasis in original). 9 The Court rejects Wollam’s argument that she need not prove damages causation if she 10 shows a breach of statute by TLIC. Adopting Wollam’s argument would effectively require the 11 Court to hold that the violation of any law bearing on a contract would allow one or more parties 12 to that contract to sue for breach. That is not what Wollam’s cases say. Instead, they stand for the 13 unremarkable proposition that wrongful termination of an insurance policy or failure to pay the 14 policy amount when a policy is still in force constitutes breach of contract. See Kim v. Axa Fin., 15 Inc., 2008 WL 11388671 , at *4 (D. Nev. Nov. 21, 2008) (wrongful termination); Moriarty v. Am. 16 Gen. Life Ins. Co., 2023 WL 5211632 , at *5 (S.D. Cal. Aug. 14, 2023), motion to certify appeal 17 granted, 2023 WL 6280967 (S.D. Cal. Sept. 26, 2023) (failure to pay policy amount).3 18 Poe is instructive. In that case, which involved claims similar to those here, “[p]laintiff 19 argue[d] she [did] not need to prove that Defendant’s violation of the Statutes caused anyone 20 actual damage . . . . In essence, [p]laintiff argue[d] that, while the Statutes do not provide a private 21 right of action, they nonetheless confer strict liability if an insurer fails to provide the Designation 22 Notices.” Poe, 2023 WL 5251875 , at *7. The district court rejected that argument. The court [23] 3 The Court is aware of one California case, not cited by the parties, holding that the plaintiff’s [24] deed of trust incorporated the Real Estate Settlement Procedures Act by implication, such that 25 plaintiff’s allegations that its lender violated RESPA alleged a breach of contract. McKell v. Wash. Mut., Inc., 142 Cal. App. 4th 1457 , 1489–90 (2006). This Court agrees with other courts 26 holding that McKell should be limited to its facts—otherwise, almost any allegation that a statute has been breached could become a breach of contract claim. Berger v. Home Depot U.S.A., Inc., [27] 476 F. Supp. 2d 1174 , 1176–77 (C.D. Cal. 2007) (“While the UCL or CLRA does not necessarily 1 first traced the history of McHugh, supra, noting that, following remand from the California 2 Supreme Court, the California Court of Appeal held that “in addition to proving [the insurer] 3 breached the contract, plaintiffs had the burden of proving they were harmed by the breach.” Id. at 4 *8 (citing McHugh v. Protective Life Ins., 2022 WL 6299640 , at *9 (Cal. Ct. App. Oct. 10, 2022) 5 (unpublished)). It further noted that “[f]ollowing McHugh and Thomas, many courts have 6 declined to discard causation as an element for a breach of contract claim based on violations of 7 the Statutes.” Id. The court “agree[d] with the weight of authority that proving Defendant’s 8 violations of the Statutes in fact caused Plaintiff damage would both be necessary for Plaintiff to 9 succeed on her breach of contract claim and would predominate over questions common to the 10 class.” Id. at *9 . Having reached that conclusion, the court then determined that individualized 11 issues overshadowed common questions, and the proposed class failed the predominance 12 requirement. Id.; see also Van v. LLR, Inc., 61 F.4th 1053, 1067 (9th Cir. 2023) (holding that the 13 defendant’s “evidence that the individualized issues bar recovery on at least some claims” was 14 sufficient to “raise[] the spectre of class-member-by-class-member adjudication” and defeat 15 predominance). 16 This Court agrees that because California law requires plaintiffs to demonstrate causation 17 of damages to establish a claim for breach of contract, individualized questions are likely to 18 predominate over common questions. The proposed class action fails the predominance 19 requirement regarding the breach of contract claim. 20 ii. UCL 21 Wollam also seeks restitution under California’s UCL. California law defines restitution 22 as “the return of the excess of what the plaintiff gave the defendant over the value of what the 23 plaintiff received.” Pulaski & Middleman, LLC v. Google, Inc., 802 F.3d 979, 988 (9th Cir. 2015) 24 (internal quotation marks and citation omitted). Restitution thus returns to a plaintiff only “those 25 measurable amounts which are wrongfully taken by means of an unfair business practice.” See 26 Tucker v. Pac. Bell Mobile Servs., 208 Cal. App. 4th 201, 229 (2012) (emphasis in original) 27 (internal quotation marks omitted). These amounts must be subject to “some reasonable basis of 1 (internal quotation marks and citations omitted). 2 Wollam proposes that restitution is easily and uniformly calculable for this proposed class 3 based on her strict liability theory of harm. See ECF Nos. 56 at 17 (“the remedy is always, and 4 exclusively, the unpaid benefits of the policy”); 61 at 12. As with Plaintiffs’ breach of contract 5 claim, however, the record suggests that individualized inquiry would be necessary to determine 6 whether proposed class members were denied benefits wrongfully. See ECF No. 57 at 26 7 (describing variations in the notices sent and informal grace periods observed before lapse of 8 individual policies); cf. Pulaski & Middleman, LLC, 802 F.3d at 986 (“[R]estitution is available on 9 a classwide basis once the class representative makes the threshold showing of liability under the 10 UCL . . .” (emphasis added)). In this case, where some putative class members were denied 11 benefits after an affirmative or voluntary decision to allow their policies to lapse while others 12 suffered an inadvertent lapse due to TLIC’s alleged failure to comply with the Statutes, 13 individualized questions are central to the restitution claim. The common question that Wollam 14 has identified will not predominate over individualized inquiries into whether the relevant policies 15 were wrongfully lapsed. As a result, the proposed class lacks predominance with respect to 16 Plaintiffs’ claim for UCL restitution. 17 This order thus joins the growing body of caselaw holding that individualized issues would 18 likely predominate in a class action regarding notice under the Statutes. See Poe, 2023 WL 19 5251875, at *8 (citing Moriarty, 2022 WL 6584150 , at *5; Nieves, 2023 WL 2705836 , at *8; 20 Steen, 2023 WL 4004192 , at *12; Pitt, 2022 WL 17972167 , at *7). The claims in this case 21 involve too many individualized questions to support class certification. 22 3. Typicality 23 The typicality requirement “ensures that the interest of the class representative ‘aligns with 24 the interests of the class.’” Just Film, Inc. v. Buono, 847 F.3d 1108, 1116 (9th Cir. 2017) (quoting 25 Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)). “The test of typicality is 26 whether other members have the same or similar injury, whether the action is based on conduct 27 which is not unique to the named plaintiff, and whether other class members have been injured by 1 Cir. 2010) (quoting Hanon, 976 F.2d at 508 ). “A court should not certify a class if ‘there is a 2 danger that absent class members will suffer if their representative is preoccupied with defenses 3 unique to it.’” Just Film, 847 F.3d at 1116 (quoting Hanon, 976 F.2d at 508 ). 4 Wollam is the sole named plaintiff in this case. TLIC argues that her claim is atypical of 5 the proposed class because she voluntarily allowed her father’s policy to lapse, causing her claim 6 to “depend[] on allegations unlike the allegations she makes on behalf of the broader class.” ECF 7 No. 57 at 23; accord id. at 23–25. Wollam does not dispute that the lapse of her policy was 8 voluntary; instead, she argues that this distinction is irrelevant because TLIC’s failure to comply 9 with the Statutes voids the policy termination regardless of what caused the lapse. ECF Nos. 56 at 10 14–15, 22–23; 61 at 16–17. 11 For the reasons set forth above, this argument is not persuasive. The Court is not 12 convinced that TLIC’s failure to comply with the Statutes gives rise to a breach of contract claim 13 or sufficiently establishes a right to restitution under the UCL. Thus, it is not clear that Wollam 14 could establish any compensable injury. Moreover, because Wollam knew about her policy’s 15 impending lapse and chose not to pay the premiums, she is likely to be preoccupied by defenses 16 relevant to her claim that do not apply to the whole class. See Just Film, 847 F.3d at 1116 . Other 17 district courts considering class certification in cases regarding the Statutes have found that similar 18 variations between named plaintiffs and the proposed class defeated typicality. See Poe, 2023 WL 19 5251875, at *6 (finding that typicality was not met where the “Plaintiff ha[d] not shown that she 20 has sustained an injury that is typical of the class—if the class has been injured at all—arising out 21 of Defendant’s noncompliance with the Statutes”); Pitt, 2022 WL 17972167 , at *4–5 (finding that 22 typicality was not met where portions of the class presented different “causation and damages” 23 questions); Nieves, 2023 WL 2705836 , at *5 (finding that typicality was not met where a class 24 representative with a reinstated policy did not “sustain[] an injury that is typical of the class”); 25 Steen, 2023 WL 4004192 , at *5–7 (finding that typicality was not met where some class members 26 intended to allow their policies to lapse and others did not, among other reasons). 27 District courts that have certified classes claiming violation of the Statutes have done so 1 on this basis, see Small v. Allianz Life Ins. Co. of N. Am., 2023 WL 4042593 , at *2; where 2 damages were not sought, see Farley v. Lincoln Benefit Life Co., 2023 WL 3007413 , at *5–6; and 3 where the class was defined to exclude individuals who affirmatively canceled their policies and 4 the named plaintiff was “not subject to any unique defenses,” Bentley v. United of Omaha Life Ins. 5 Co., 2018 WL 3357458 , at *9. Wollam’s proposed class includes both members who did and did 6 not experience harm caused by Defendants’ conduct. Because Wollam knowingly allowed her 7 policy to lapse, she cannot fairly represent absent class members who inadvertently failed to make 8 payments without the required notices and lost their benefits as a result. The typicality 9 requirement is not satisfied. 10 C. Rule 23(c)(4) 11 In passing,4 Wollam requests certification under Rule 23(c)(4). That rule provides that, 12 “[w]hen appropriate, an action may be brought or maintained as a class action with respect to 13 particular issues.” Fed. R. Civ. P. 23(c)(4). Wollam argues that, “[a]s an alternative to 14 certification of this entire Class as defined under Rule 23(b), the Court could certify merely the 15 legal issues of whether The Statutes apply to Defendant’s policies in force as [of] January 1, 2013, 16 and whether TLIC’s admitted failure to comply with The Statutes rendered its lapses or 17 terminations ineffective.” ECF No. 56 at 28. 18 “Certification of an issues class is appropriate only if it permits fair presentation of the 19 claims and defenses and materially advances the disposition of the litigation as a whole.” Manual 20 for Complex Litigation § 21.24 (4th ed. 2004). Certification here would not “materially advance 21 the litigation” because the very issue that Wollam identifies would require individualized inquiries 22 that preclude certification. 23 / / / 24 / / / 25 / / / 26 / / / [27] 1 CONCLUSION 2 Because the proposed class fails to satisfy the predominance requirement of Rule 23(b)(2) 3 and the typicality requirement of Rule 23(a), and certification under Rule 23(c)(4) would not 4 || materially advance the litigation, Wollam’s motion for class certification is denied. 5 IT IS SO ORDERED. 6 || Dated: March 13, 2024 . 7 JON S. TIGA 8 nited States District Judge [11] a 12 [16] = 17 Z 18