Opposition To Deny Class Certification Before Discovery Mazgani Mahvash Nazanin Neyaz, Mazgani Social Services Defendants

Case 8:17-cv-00644-CJC-KES Document 53 Filed 09/11/17 Page 1 of 23 Page ID #:1865
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Aperture Law Firm
2 Robert B. Salgado, Esq. (SBN 297391)
robert@aperturelaw.com
3 5755 Oberlin Drive, Suite 301
San Diego, CA 92121
4 Telephone: 858-223-6552
Fax: 858-223-6557
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Attorney for Plaintiff: Iraj Khosroabadi
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UNITED STATES DISTRICT COURT
Telephone (858) 223-6552 Facsimile: (858-223-6557
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CENTRAL DISTRICT OF CALIFORNIA
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5755 Oberlin Drive, Suite 301
San Diego, CA 92121
Aperture Law Firm
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IRAJ KHOSROABADI, an Individual ) Case: 8:17-cv-00644-CJC-KES
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Plaintiff, ) PLAINTIFFS NOTICE OF
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vs. ) OPPOSITION AND
16 MAZGANI SOCIAL SERVICES, INC, ) MEMORANDUM & POINTS AND
) AUTHORTIES IN OPPOSITION
17 a California Corporation, MAHVASH )
MAZGANI, NAZANIN MAZGANI, ) TO DEFENDANTS MOTION TO
18 ) DENY CLASS CERTIFICATION
NEYAZ MAZGANI, MAHNAZ )
19 MOGHADDAM, SHOHREH ) Date: 10/2/2017
20 SHARIFZADEH, and DOES 1 through )) Time: 1:30PM
25, inclusive, ) Dept: 9B
21 ) Judge: Hon. Cormac J. Carney
Defendant(s) )
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PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DENY CLASS CERTIFICATION
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1 TO THE HONORABLE JUDGE CORMAC J. CARNEY:

2 NOW COMES Plaintiff IRAJ KHOSROABADI, by and through his
3 attorney, and submits this Opposition to Defendants Motion to Deny Class
4 Certification.
5 Basis for motion.
6 Plaintiffs Motion is based on the following Memorandum of Points and
7 Authorities, the complete files and records of this action and on such other oral
8 and/or documentary evidence as may be presented at the hearing on the Motion.
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11 RESPECTFULLY SUBMITTED
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Dated: September 11, 2017

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15 Robert Salgado
16 Attorney for Plaintiff Class
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1 TABLE OF CONTENTS
2 BACKGROUND .......................................................................................................1
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4 LEGAL STANDARD ................................................................................................1
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ARGUMENT .............................................................................................................3
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7 DEFENDANTS MOTION TO DENY CLASS CERTIFICATION IS NOT
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TIMELY AND IS PREJUDICIAL TO THE PLAINTIFFS CLAIMS ....................3
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10 DEFENDANTS HAVE THE BURDEN OF PROOF TO SHOW THAT THE
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CLASS IS INHERENTLY INCAPABLE OF BEING CERTIFIED ....................4
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13 THE ISSUES AND ALLEGATIONS OF THIS CASE HIGHLIGHT THE NEED

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FOR DISCOVERY BEFORE CLASS CERTIFICATION IS MADE .....................5
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16 THE DEFENDANTS DELIBERATELY AVOIDED CITING TO CASES THAT
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GRANTED A MOTION TO DENY CLASS CERTIFICATION ON THE
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19 PLEADINGS (BEFORE DISCOVERY) IN ORDER TO DECEIVE THIS
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TRIBUNAL ...............................................................................................................7
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22 PLAINTIFFS CLASS DEFINITION MEETS THE REQUIREMENTS OF RULE
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23(A) ..........................................................................................................................8
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25 NUMEROSITY .........................................................................................................9
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27 TYPICALITY ..........................................................................................................11
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1 THE DEFENDANTS ATTEMPTED PAY-OFF OF IRAJ DOES NOT MAKE
2 HIS INDIVIDUAL CLAIMS MOOT OR DISQUALIFY HIM AS CLASS

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REPRESENTATIVE ...............................................................................................11
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5 PLAINTIFF CAN FAIRLY AND ADEQUATELY REPRESENT THE
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INTEREST OF THE CLASS BECAUSE HIS CLAIMS ARE IDENTICAL TO
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8 THOSE OF THE CLASS ........................................................................................13
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COMMONALITY ...................................................................................................14
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A CLASS ACTION IS SUPERIOR TO INDIVIDUAL LITIGATION IN THAT
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13 IT WOULD LIMIT THE RISK OF INCONSISTENT ADJUDICATIONS ..........15
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CONCLUSION ........................................................................................................15
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1 Table of Authorities
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3 Federal Cases
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Amchem Prods. v. Windsor (1997) 521 U.S. 591 ............................................... 5, 6
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6 Balser v. Hain Celestial Grp., Inc. (9th Cir. 2016) 640 F. App'x 694 ................... 4
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8 Campbell-Ewald Co. v. Gomez (2016) 136 S.Ct. 663 .......................................... 12
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Chen v. Allstate Ins. Co. (9th Cir. Apr. 12, 2016) 819 F.3d 1136 .................. 12, 13
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11 Clark v. State Farm Mut. Auto. Ins. Co. (D.Colo. 2007) 245 F.R.D. 478 ............ 11
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13 Conde v. Open Door Mktg., LLC (N.D.Cal. Apr. 27, 2017) 223 F.Supp.3d 949 ... 8
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Consolidated Rail Corp. v. Town of Hyde Park (2d Cir. 1995) 47 F.3d 473 ....... 11
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16 De Leon v. Std. Ins. Co. (C.D.Cal. Jan. 28, 2016), No. Case No 2:15-cv-07419-
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ODW(JC), 2016 U.S. Dist. LEXIS 11639 ....................................................... 3, 8-9
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19 Doninger v. Pacific Northwest Bell, Inc. (9th Cir. 1977) 564 F.2d 1304 ........... 6, 7
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Doninger v. Pacific Northwest Bell, Inc. (9th Cir. Nov. 25, 1977) 564 F.2d 1304 7
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Edwards v. Oportun, Inc. (N.D.Cal. June 14, 2016) 193 F.Supp.3d 1096 ........... 13
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24 Gen. Tel. Co. of the Southwest v. Falcon (June 14, 1982) 457 U.S. 147 ............... 8
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General Tel. Co. v. Eeoc (1980) 446 U.S. 318 ................................................10, 11
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27 Grant v. Sullivan (M.D.Pa. 1990) 131 F.R.D. 436 ............................................... 11
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1 Hanlon v. Chrysler Corp. (9th Cir. June 9, 1998) 150 F.3d 1011 .............. 8, 12, 14
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Hayes v. Wal-Mart Stores, Inc. (3d Cir. 2013) 725 F.3d 349 ............................... 11
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4 Hernandez v. Alexander (D.Nev. 1993) 152 F.R.D. 192 ...................................... 11
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In re American Medical Sys. (6th Cir. 1996) 75 F.3d 1069 .................................. 10
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7 Joseph N. Main P.C. v. Electronic Data Sys. Corp. (N.D.Tex. 1996) 168 F.R.D.
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9 573 ........................................................................................................................ 4, 5
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Peoples v. Sebring Capital Corp. (N.D.Ill. 2002) 209 F.R.D. 428 ...................... 11
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12 Pitts v. Terrible Herbst, Inc. (9th Cir. 2011) 653 F.3d 1081 ................................ 13
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R.I. v. Innis (1980) 100 S.Ct. 1682 ....................................................................... 10
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15 Stromberg v. Ocwen Loan Servicing, LLC (N.D.Cal. June 22, 2017), No. 15-cv-
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04719-JST, 2017 U.S. Dist. LEXIS 96738 ............................................................ 13
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18 Vinole v. Countrywide Home Loans, Inc. (9th Cir. July 7, 2009) 571 F.3d 935 .......
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20 ....................................................................................................................... 2, 3, 5, 9
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Wal-Mart Stores, Inc. v. Dukes (2011) 131 S.Ct. 2541 ........................................ 15
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24 Other
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Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84
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27 N.Y.U. L. REV. 97, 132 (2009) ............................................................................. 15
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20 CFR 404.1720 .................................................................................................. 9,
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1
2 BACKGROUND
3 On June 4th, 2017 Plaintiff filed his First Amended Complaint alleging seven
4 causes of action against Defendants. Dkt. 15. On July 5th, 2017 the Defendants
5 filed a Motion to Dismiss that was granted in part and denied in part by this Court
6 on July 28, 2017. Dkt. 31; Dkt. 40. This Court ruled on the Defendants motion
7 by: 1) dismissing two causes of action in their entirety with prejudice; 2)
8 dismissing intentional fraud as to Nazanin Mazgani with prejudice; and 3)
9 dismissing intentional infliction of emotional distress in its entirety with 30 days to
10 amend.
11 On August 8th, 2017 Plaintiff filed a Notice of Intent to Rest on the First
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Amended Complaint (hereinafter 1AC) and Request for Defendants Answer.

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13 Dkt. 41. Defendants finally filed their Answer on August 22nd , 2017 to Plaintiffs
14 1AC. On August 25, 2017 Felton T. Newell, counsel for Defendants, and Robert
15 Salgado, counsel for Plaintiff, had a phone conference to discuss the pertinent
16 dates for the scheduling order, and to discuss other pertinent issues in the case.
17 Dkt. 48. At no time during this meeting, or thereafter, did Mr. Newell ever discuss
18 or disclose his intent to file the present Motion to Deny Class Certification in direct
19 violation of Local Rule 7-3.
20 As of the date of this opposition, neither party has exchanged their initial
21 disclosures, and discovery has not yet begun. Dkt. 18 (noting that this Court will
22 determine the Scheduling Order on September 15, 2017). Defendants Motion to
23 Deny Certification was filed on September 1, 2017, with a hearing date scheduled
24 for October 2, 2017, giving the Plaintiff only 10 days to oppose this motion.
25 LEGAL STANDARD
26 A defendant may move to deny class certification before a plaintiff files a
27 motion to certify a class. Vinole v. Countrywide Home Loans, Inc., 571 F.3d
28 935, 941 (9th Cir. Cal. July 7, 2009).
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1 In a motion to deny class certification, a district court must consider whether

2 the plaintiff had sufficient time to prepare for Defendants motion and whether
3 any procedural prejudice exists from the timing of the motion to deny certification.
4 Id. at 942&944. While the 9th Circuit has yet to address the issue of a motion to
5 deny certification before discovery, the majority of the district courts have held
6 that such a motion should be rarely granted, if at all. De Leon v. Std. Ins. Co.,
7 2016 U.S. Dist. LEXIS 11639, *6-7, 61 Employee Benefits Cas. (BNA) 1961
8 (C.D. Cal. Jan. 28, 2016) (internal citations omitted).
9 Nevertheless, [d]istrict courts have broad discretion to control the class
10 certification process, and [w]hether or not discovery will be permitted . . . lies
11 within the sound discretion of the trial court." Vinole v. Countrywide Home
12 Loans, Inc., 571 F.3d 935, 942 (9th Cir. Cal. July 7, 2009). While a party seeking
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13 class certification is not always entitled to conduct discovery on the issue, a class
14 action cannot be determined without discovery in certain cases. Id. (Internal
15 citations omitted). "[T]he better and more advisable practice for a District Court to
16 follow is to afford the litigants an opportunity to present evidence as to whether a
17 class action was maintainable." Id. (Internal citations omitted).
18 A preemptive motion to deny certification alleges that the plaintiff cannot
19 make a prima facie showing that the proposed class complies with Rule 23s
20 requirements or that discovery measures were likely to produce persuasive
21 information substantiating the class action allegations. Id. (Internal citations
22 omitted). The burden is on the Defendants in a preemptive motion to deny class
23 certification before discovery to show that a class is inherently incapable of being
24 certified[.] De Leon v. Std. Ins. Co., 2016 U.S. Dist. LEXIS 11639, *9, 61
25 Employee Benefits Cas. (BNA) 1961 (C.D. Cal. Jan. 28, 2016). Here, the
26 Defendants have completely failed to meet their burden, and this Motion should be
27 denied.
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1 ARGUMENT
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3 DEFENDANTS MOTION TO DENY CLASS CERTIFICATION IS NOT
4 TIMELY AND IS PREJUDICIAL TO THE PLAINTIFFS CLAIMS
5 The Defendants begin their argument by completely misquoting Rule
6 23(c)(1). Dkt. 47 Pg. 4-5. Rule 23(c)(1)(A) states that [a]t an early practicable
7 time after a person sues or is sued as a class representative, the court must
8 determine by order whether to certify the action as a class action.
9 The standard is not as soon as possible after the commencement of any
10 action as proffered by the Defendants. Dkt. 47, Pg. 4-5. Local Rules 23-3 further
11 state that a plaintiff has 90 days after service of a pleading purporting to

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commence a class action to file a motion for class certification unless otherwise
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13 ordered by the Court. The 9th Circuit criticized local rules setting a specific
14 deadline on the filing of a motion to certify a class as inconsistent with Rule 23 and
15 unrealistic in light of recent case law regarding the need to establish a sufficient
16 factual record at the class certification stage. Balser v. Hain Celestial Group Inc.,
17 640 Fed.Appx. 694, 69697 (9th Cir. 2016). This decision cited approvingly to a
18 Federal Judicial Center resource calling on judges to ignore such local rules as
19 inconsistent with federal rules and obsolete. (Internal citations omitted). In
20 urging this Court to strictly adhere to Local Rule 23-3, the Defendants state that
21 this Court should count the 90-day deadline from the date the case was removed to
22 federal court. Dkt. 47 Pg. 5.
23 As justification for what would be a draconian standard if applied to this
24 case, the Defendants cite Joseph N. Main P.C. v. Electronic Data Systems Corp., a
25 case from the Northern District of Texas that interpreted their 90 day local rule as
26 such. 168 FRD 573, 577 (N.D. Tx, 1996). Despite being dicta at best, the facts of
27 this case are easily distinguishable. First, the court in Joseph was discussing a
28 motion to strike, and not a preemptive motion to deny certification. Id.
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1 Furthermore, the motion in Joseph was initiated after discovery had started,
2 and 153 days after the complaint had been removed to federal court, with no
3 intervening amended complaint. Id. Joseph never decided if they would have
4 dismissed the case if the 90 days had ended before discovery. Id. Joseph is not so
5 out of alignment with the 9th Circuits unremarkable proposition that often the
6 pleadings alone will not resolve the question of class certification and that some
7 discovery will be warranted [before a motion to deny certification should be
8 granted][.] Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir.
9 Cal. July 7, 2009). As such we believe that strict adherence to L.R. 23-3 would
10 prejudice the Plaintiffs claim without giving due consideration to the Plaintiffs
11 compliance with Rule 23, and that the Defendants Motion should be dismissed. In
12 the alternative, we urge this Court to give equal weight to L.R. 7-3 and dismiss this
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13 Motion for Defense Counsels complete failure to meet and confer prior to the
14 filing of this Motion, despite having ample opportunity to do so.
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16 DEFENDANTS HAVE THE BURDEN OF PROOF TO SHOW THAT THE
17 CLASS IS INHERENTLY INCAPABLE OF BEING CERTIFIED
18 The Defendants suggest that [e]ven where a defendant initiates a motion to
19 deny certification of a class action, the plaintiff has the burden of establishing the
20 certification requirements. However, the case that they cite, Amchem Products,
21 Inc. v. Windsor, never supports this proposition, and in fact has nothing to do with
22 a preemptive motion to deny certification before discovery. 521 US 591 (1997).
23 In Windsor, the plaintiffs and defendants all stipulated to, and simultaneously filed,
24 the complaint, the answer, and a motion for class certification exclusively to settle
25 the case without litigation. Id. The reason everything was stipulated and filed
26 simultaneously is that the parties had already agreed on settlement terms, so the
27 district court granted certification without considering whether the class met the
28 requirements of Rule 23. Those individuals excluded from the class challenged the
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1 adequacy of the district courts class certification. Windsor, 521 U.S. 591 at 597.
2 The Supreme Court held that even if the only purpose of the class certification is to
3 settle the case, the class must still satisfy the requirements of Rule 23. Id. In no
4 way does this case even begin to contemplate a defendants burden of proof in a
5 preemptive motion to deny certification before discovery.1
6 The Plaintiff is deeply concerned about the Defendants glaring misquote,
7 especially in light of the fact that the Defendants cited to Vinole, which gives clear
8 guidance in considering a preemptive motion to deny certification. Dkt. 47, Pg. 6.
9 Supra. Nowhere in Vinole does it even begin to imply that a plaintiff has the
10 burden of proof in a defendants preemptive motion to deny certification. In
11 reviewing Windsor, there are only two ways someone could draw the same
12 conclusion as the Defendants have here, 1) they are not competent to practice law
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13 in this state, or any other state; or 2) it was a deliberate misquote intended to

14 deceive the tribunal in violation of Californias Rules of Professional Conduct Rule
15 5-200(B)&(C).
16 Either way, we still must consider whether the Defendants have met their
17 burden to demonstrate that the Plaintiffs proposed class is inherently incapable of
18 being certified.
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20 THE ISSUES AND ALLEGATIONS OF THIS CASE HIGHLIGHT THE
21 NEED FOR DISCOVERY BEFORE CLASS CERTIFICATION IS MADE
22 Defendants argue that their Motion is ripe even though discovery has not
23 been initiated. Dkt. 47 Pg. 5. The Defendants then deceptively quote Doninger v.
24 Pacific Northwest Bell, Inc., which has nothing to do with the ripeness of a motion
25 to deny certification made before discovery. 564 F.2d 1304, 1313 (9th Cir. 1977).
26 The Defendants quote from Doninger that: where the plaintiffs fail to make even
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28 In fact, the word deny never appears in the entire text of the case, except for footnote 4 in a
parenthetical to another case.
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1 a prima facie showing of Rule 23s prerequisites . . . the burden is on the plaintiff
2 to demonstrate that discovery measures are likely to produce persuasive
3 information substantiating the class action allegations. Id. In Doninger, discovery
4 had already been initiated, and both parties had made their initial disclosures and
5 propounded and answered interrogatories. Doninger v. Pacific Northwest Bell,
6 Inc., 564 F.2d 1304, 1307-1308 (9th Cir. Wash. Nov. 25, 1977). Before resolving
7 a discovery dispute, the district court ordered the plaintiffs to file a motion for class
8 certification, which they did. The district court then denied their motion for class
9 certification because they found that the proposed class would never satisfy the
10 requirements of Rule 23(a), and that discovery measures were not likely to
11 produce the information necessary to demonstrate that a class action was

12 appropriate. Id. Additionally, of particular significance to the 9th Circuit was the
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13 fact that the plaintiffs had decided to rest solely upon the submission of
14 interrogatories and admitted that they made no attempt to obtain depositions,
15 despite fully being able to do so. Id. at 1313.
16 Here, Defendants are filing a motion to deny certification, which was
17 presented before any discovery has been conducted. The Defendants provide no
18 support for the ripeness of their own motion. As discussed above, in the only
19 authority cited by the Defendants, discovery had already started, the motion was a
20 plaintiffs motion to certify the class, and the district court believed that the class
21 as defined could not be certified, even with more discovery. Supra. We agree that
22 when the Plaintiff files his motion to certify the class, the Plaintiff has the burden
23 of proof, but that has nothing to do with the Defendants motion. Again the
24 Defendants proffer erroneous rules that are not even remotely contemplated by the
25 cases they offer as authority.
26 Lastly, the Defendants erroneously state that the threshold task in their
27 motion is for the court to ascertain whether the proposed . . . class satisfies the
28 requirements of Rule 23(a) and further urges that a court should not grant class
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1 certification unless the Plaintiff meets the requirements of 23(a). Dkt. 47, Pg. 6.
2 In the two cases cited by Defendants, both courts were considering motions for
3 class certification filed by the plaintiffs, and each had undergone extensive
4 discovery. Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 149-155 (U.S.
5 June 14, 1982); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1018-1019 (9th Cir.
6 Cal. June 9, 1998). Here, the Defendants extract rules drawn from two cases with
7 conflicting fact patters to the case herein, and act as if the rules apply here. Again
8 the Defendants misquote authority in order to support their erroneous contention
9 that the Plaintiff has the same burden of proof here as if they had filed a motion to
10 certify the class. In so doing, the Defendants completely fail to meet their own
11 burden of proof, and thus this motion should be denied.

12 The Defendants have completely failed to make even a basic prima facie
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13 case for the ripeness of their own motion, and have demonstrated a grievous lack
14 of competence in their case citations or, at worse, have intentionally attempted to
15 mislead this Tribunal. Either way, the Defendants Motion should be denied as
16 untimely given the current state of discovery, and should be denied for their
17 complete failure to meet their burden of proof.
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19 THE DEFENDANTS DELIBERATELY AVOIDED CITING TO CASES
20 THAT GRANTED A MOTION TO DENY CLASS CERTIFICATION ON
21 THE PLEADINGS (BEFORE DISCOVERY) IN ORDER TO DECEIVE
22 THIS TRIBUNAL
23 The reason the Defendants fail to cite to any cases that are analogous to the
24 issues in this case (preemptive motion by defendant to deny certification before
25 discovery) is not because those cases dont exist (though they are very rare), its
26 because those cases clearly place the burden on the defense to show that the
27 plaintiff failed to make a prima facie showing of compliance with Rule 23. See ex,
28 Conde v. Open Door Mktg., LLC, 223 F. Supp. 3d 949, 958, 2017 U.S. Dist.
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1 LEXIS 64319, *15-16 (N.D. Cal. Apr. 27, 2017) (the prima facie failure of a part
2 of plaintiffs class to meet the rule 23(a) requirements was demonstrated by
3 defendants); De Leon v. Std. Ins. Co., 2016 U.S. Dist. LEXIS 11639, *6-7, 61
4 Employee Benefits Cas. (BNA) 1961 (C.D. Cal. Jan. 28, 2016) (denies preemptive
5 motion finding that defendants challenges were a smokescreen of hypothetical
6 problems and potential hurdles to class certification, failing to show that [the]
7 class is inherently incapable of being certified). Furthermore, the issue of class
8 certification in the cases above were not resolved through the defendants
9 preemptive motion; Conde only invalidated part of the plaintiffs class, allowing
10 the plaintiff to conduct discovery and file their motion to certify the class. Plaintiff
11 has not been able to find a case where an entire class was granted certification by
12 court order resulting from a defendants preemptive motion to deny class
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13 certification before discovery.

14 If a plaintiff had the burden of proof to demonstrate class compliance with
15 Rule 23 every time a defendant filed a motion to deny certification, then every
16 class would be granted or denied certification before the start of discovery. A
17 plaintiff might have the burden to show compliance with Rule 23 from a
18 defendants motion to deny certification after the start of discovery, but that
19 analysis depends on how much discovery was conducted. See Vinole, 571 f.3d
20 935, 939-943. Otherwise, the burden is exclusively on the defendant to prove that
21 the plaintiff failed to make a prima facie showing of class compliance with Rule
22 23. Defendants deliberately made up their erroneous rule, and cited to cases that
23 had nothing to do with their made up assertions.
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25 PLAINTIFFS CLASS DEFINITION MEETS THE REQUIREMENTS OF
26 RULE 23(A)
27 Plaintiffs First Amended Complaint (1AC) defines the class as: All
28 persons who were charged by Defendants, and each of them, for a fee related to
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1 obtaining Social Security Administration Benefits or California State Benefits in

2 excess of the established permissible amount pursuant to Code of Federal
3 Regulations 404.1720 from December 23, 2005 to the present. Defendants
4 argue that the Plaintiffs class is not so numerous that joinder is impracticable
5 and that the Plaintiff cannot establish typicality as he lost no money in his
6 interaction with Mahvash Mazgani. Defendants also assert that Plaintiffs class
7 should be denied as there is no heightened risk of inconsistent adjudications.
8 Defendants correctly point out that the Plaintiff can no longer represent the
9 subclass of those who suffered emotional distress pursuant to the dismissal of that
10 claim by this Court. Dkt. 47 Pg. 7; Dkt. 40.
11 Plaintiffs class meets the numerosity requirement as it includes class

12 members who were defrauded from 2005 to the present. Plaintiff also meets the
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13 typicality requirement since the Plaintiff is seeking to represent a class that was
14 defrauded when they hired Mazgani Social Services Inc. to file their Social
15 Security applications. Furthermore, the Defendants attempts to buy off the
16 Plaintiff by refunding the money that he paid as a result of the Defendants fraud
17 does not disqualify his representation of the class. Finally, the Plaintiff reserves
18 the right to certify the class under Rule 23(B), and asks this court to reserve
19 judgment on this issue until a motion to certify the class is filed.
20 NUMEROSITY
21 "There is no strict numerical test for determining the impracticability of
22 joinder." In re Am. Med. Sys., 75 F.3d at 1079. Instead, "the numerosity
23 requirement requires examination of the specific facts of each case and imposes no
24 absolute limitations." General Telephone Co. v. EEOC, 100 S.Ct. 1695, 1706
25 (1980).
26 Here, the Defendants state that Plaintiff cannot meet the numerosity
27 requirement because Ms. Mazgani has only had 14 customers since 2015. The
28 defendants fail to meet their burden. Even if we presume that its true that they
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1 have had only had 14 customers since 2015 (and it is not true), the class definition
2 goes back to 2005. If we average the numbers (Defendant sees an average of 14
3 customers every 2.5 years) then the class size, based only on the testimony of Ms.
4 Mazgani, would be 67.2 since 2005. This is not a prima facie failure to meet the
5 numerosity requirement. See Gen. Tel. Co. of the NW. v. EEOC, 446 U.S. 318,
6 330 (1980) (suggesting 15 is too few); Hayes v. Wal-Mart Stores, Incorporated,
7 725 F.3d 349, 357 (3d Cir. 2013) (presuming numerosity at 40); Consol. Rail Corp.
8 v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) (same). There are, of
9 course, exceptions. Clark v. State Farm Mut. Auto. Ins. Co., 245 F.R.D. 478 (D.
10 Colo. 2007) (rejecting class of 115); Peoples v. Sebring Capital Corp., 209 F.R.D.
11 428 (N.D. Ill. 2002) (certifying a class of eleven individuals); Grant v. Sullivan,
12 131 F.R.D. 436 (M.D. Pa. 1990) (noting that in some cases, particularly where
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13 declaratory and injunctive relief is sought, classes as small as fourteen may be

14 certified); Hernandez v. Alexander, 152 F.R.D. 192 (D. Nev. 1993) (indicating that
15 a class of fifty-two might meet numerosity requirements but declined to certify
16 because of failure to show impracticability of individual joinder).
17 Obviously, Plaintiff believes that the potential class numbers in the
18 thousands, but the courts do not require a hard number. To decide this issue before
19 discovery (especially when the Defendants offer numbers without proof) would be
20 prejudicial to the Plaintiff. Furthermore, since the Plaintiff is alleging that the
21 Defendants committed fraud, it is unlikely that many potential class members
22 even know that they have been ripped off, thus making it very unlikely that the
23 class members would prosecute these claims on their own. Lastly, the amount that
24 each class member was defrauded can range from $100 to $3,000 or more, making
25 it unlikely to justify the cost of an individual lawsuit. Thus, the Plaintiff has made
26 a prima facie showing that the Class meets the numerosity requirement.
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1 TYPICALITY
2 Rule 23(a)(3) requires the plaintiff to show that the claims or defenses of
3 the representative parties are typical of the claims or defenses of the class.
4 Under the rule's permissive standards, representative claims are typical if they
5 are reasonably co-extensive with those of absent class members; they need not be
6 substantially identical. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir.
7 Cal. June 9, 1998). Here, Defendants argue that Mr. Khosroabadi was charged
8 $500 for administrative costs, but that those funds were returned to him. Dkt. 47
9 Pg. 6-7. The Plaintiff, they allege, is also in a very different position than other
10 class members who were allegedly charged illegal fees after they started receiving
11 SSA disability payments. Id. Thus, the Plaintiff cannot be relied upon to fairly
12 and adequately protect their interests. Id. These assertions, even if true, do not
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13 constitute the Plaintiffs prima facie failure to meet the Rule 23 requirements for
14 class certifications. Furthermore, the assertions relied on by the Defendants are not
15 supported by relevant authority.
16
17 THE DEFENDANTS ATTEMPTED PAY-OFF OF IRAJ DOES NOT
18 MAKE HIS INDIVIDUAL CLAIMS MOOT OR DISQUALIFY HIM AS
19 CLASS REPRESENTATIVE
20 The $500 money order that Mahvash mailed to Iraj was made several days
21 after Iraj served the Defendants with notice of the class action. Dkt. 15 124. The
22 Supreme Court in Gomez v. Campbell-Ewald, 136 S.Ct. 663 (S. Ct., 2016) held
23 that an unaccepted settlement offer has no force, but declined to resolve whether
24 the case would have been mooted where a defendant actually paid the amount
25 sought by the Plaintiff. Id. at 672. The 9th Circuit provided further clarification of
26 the Supreme Courts opinion in Chen v. Allstate Ins. Co., 819 F.3d 1136, 1138-
27 1139 (9th Cir. Cal. Apr. 12, 2016). In Chen, the defendant deposited the full
28 amount of the named plaintiffs individual monetary claims into an escrow account
11
1 pending entry of a court order or judgment to pay the tendered funds to the
2 plaintiff, then moved to dismiss the putative class action as moot. Id. at 1138,
3 1141. The 9th Circuit held that even though the judgment "would afford [the
4 plaintiff] complete relief on his individual claims for damages and injunctive
5 relief," it did not make his individual claim moot because mootness hinges on
6 whether "a plaintiff actually receives complete relief on that claim, not merely
7 when that relief is offered or tendered." Id. at 1138, 1144-46, 1148-49. Chen
8 further held that, even if the individual plaintiff's claims could be mooted in this
9 way, "[the plaintiff] would still be able to seek class certification" as an exception
10 to the mootness rule. Id. at 1142-44. This exception recognizes that "a named
11 plaintiff's claim is 'transitory in nature and may otherwise evade review' in light of
12 a defendant's tactic of 'picking off' lead plaintiffs to avoid a class action." Id.
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13 (quoting Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1091 (9th Cir. 2011). Lastly,
14 the Court held that it would be inappropriate to enter judgment when a class
15 representative is paid off because the class member must be accorded a fair
16 opportunity to show that certification is warranted. Id. at 1146-47.
17 Predictably, various defendants attempted to circumvent Chen by providing
18 direct pay-offs by check in order to disqualify a class representative, and then
19 distinguishing their pay-offs from the example in Chen. This exact scenario played
20 out in Stromberg v. Ocwen Loan Servicing, LLC, 2017 U.S. Dist. LEXIS 96738,
21 *23-24, (N.D. Cal. June 22, 2017). There, the defendant proffered a check to the
22 plaintiff, who rejected the defendants tender. The defendant argued that the case
23 was moot because [c]hecks are payable on demand and do not require
24 acceptance and that Chen was distinguishable because the defendant actually
25 tendered a payment in the form of a check. In Chen, the defendants retained
26 ownership of the account where they deposited the funds. Supra. The court held
27 that courts have consistently rejected these arguments and that Campbell-Ewald
28 and Chen apply with equal force where the defendant tenders a check to the
12
1 plaintiff. Stromberg, 2017 U.S. Dist. LEXIS 96738, *24 (internal citations
2 omitted). See also Edwards v. Oportun, Inc., 193 F. Supp. 3d 1096, 1099 (N.D.
3 Cal. June 14, 2016) (holding that plaintiffs claim was not made moot where: 1)
4 unconditionally tendered check from defendant did not afford the plaintiff
5 complete relief; 2) plaintiff rejected the check; and 3) no final judgment had
6 been made on the plaintiffs individual claims).
7 The Defendants completely fail to even cite to Campbell-Ewald or Chen
8 despite their applicability to this case. There is no excuse for the Defendants
9 omission because both of these cases were discussed and cited in the 1AC when
10 discussing mootness. Dkt. 15, 124. None of the cases cited by the Defendants
11 even remotely apply to their assertion that Plaintiff cannot establish that his
12 claims and defenses are typical of the claims and defenses of the class as he was
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13 only charged $500 for administrative costs and those funds were returned to him.
14 Dkt. 47, Pg. 6-7. In this case, Iraj rejected the payment proffered by the
15 Defendants, has not yet received complete relief, and no final judgment has yet
16 been issued on Plaintiffs individual claims. Dkt. 9-2, 17. Defendants fail again
17 to meet their burden to show that Plaintiff failed to make a prima facie showing of
18 compliance with Rule 23(a)(3).
19
20 PLAINTIFF CAN FAIRLY AND ADEQUATELY REPRESENT THE
21 INTEREST OF THE CLASS BECAUSE HIS CLAIMS ARE IDENTICAL
22 TO THOSE OF THE CLASS
23 The Defendants assertion that the Plaintiff cannot fairly and adequately
24 represent the Class because some class members were charged illegal fees after
25 they received SSA benefits is without merit. Dkt. 47, Pg. 8. As with commonality,
26 factual differences do not defeat typicality if the course of conduct and the claims
27 are based on the same legal theory. Hanlon, 150 F.3d 1011, 1020. Here, the Class
28 consists of those individuals who were charged an illegal fee in violation of Code
13
1 of Federal Regulations 404.1720. By their own admission, the Defendants

2 charged every class member an illegal fee for their services, including the Plaintiff.
3 Dkt. 28, Pgs. 12-13. As such, it doesnt matter whether some people had all their
4 checks cashed; when the Defendants admitted that they collected an administrative
5 fee that was not placed in an escrow account and used for out-of-pocket expenses,
6 they committed fraud, and fraud started at the same time (the initial meeting) for
7 every class member. Dkt. 11-1, 6 (When a client is not approved for benefits,
8 the Companys only charge is the $500 the Company collects for out-of-pocket
9 administrative costs). All of the potential Class members were injured when the
10 Defendants charged them the illegal initial fee for their services, whether it was
11 $100 or $3,000. The Plaintiffs individual claims are the same as the Class, and
12 thus he can fairly and adequately represent the interests of the Class.
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13 COMMONALITY
14 The Defendants never question whether the Plaintiffs proposed class meets
15 the commonality requirement; nevertheless the Class satisfies this requirement.
16 Wal-Mart clarifies that to satisfy the commonality requirement, a plaintiff must do
17 more than simply show that there is at least one common issue of law or fact. A
18 plaintiff must show that its claims rest upon a "common contentionthat [] is
19 capable of classwide resolution which means that determination of its truth or
20 falsity will resolve an issue that is central to the validity of each one of the claims
21 in one stroke." Wal-Mart, 131 S. Ct. at 2551. "`What matters to class certification .
22 . . is not the raising of common questions . . . but, rather the capacity of a classwide
23 proceeding to generate common answers apt to drive the resolution of the
24 litigation.'" Id. (quoting Richard A. Nagareda, Class Certification in the Age of
25 Aggregate Proof, 84 N.Y.U. L. REV. 97, 132 (2009)) (emphasis in original).
26 Here, a determination of whether the fees charged by the Defendants were
27 illegal or not would resolve the Plaintiffs and the proposed Class claims. Since
28 this Court dismissed the Plaintiffs subclass of those who suffered from emotional
14
1 distress, there is only one common issue unique to the entire class; the Defendants
2 fraudulent fees. As such, the commonality requirement is met.
3
4 A CLASS ACTION IS SUPERIOR TO INDIVIDUAL LITIGATION IN
5 THAT IT WOULD LIMIT THE RISK OF INCONSISTENT
6 ADJUDICATIONS
7 Finally, the Defendants argue that the Plaintiffs remedies are limited
8 exclusively to damages because this Court has twice denied the injunctive relief
9 sought by the Plaintiff in two separate temporary restraining orders (TROs). The
10 Defendants do not argue that, should the Plaintiff seek damages and injunctive
11 relief, the class certification would run afoul of Rule 23(b)(1)(A) (it would not).
12
Instead, they only argue that because the Plaintiffs claim is only for damages,
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13 there is no heightened risk of inconsistent adjudications. Dkt. 47, Pg. 9.

14 The Defendants assertions are wrong. Even though injunctive relief was
15 denied under the heightened pleading standards required of a TRO, the Plaintiff
16 was not precluded from seeking injunctive relief. In fact, the Plaintiff is still free
17 to submit a renewed motion for an asset freeze, receivership, corrective
18 advertising, and permanent injunction preventing the Defendants from collecting
19 any more illegal fees (unlawful business activity). As such, the Plaintiff would still
20 need to meet this requirement in their motion for class certification.
21 CONCLUSION
22 The Defendants wholly failed to meet their burden for a preemptive motion
23 to deny class certification before discovery. Furthermore, the criticisms levied by
24 the Defendants to the Plaintiffs proposed Class highlight only the potential hurdles
25 that the Plaintiff will overcome in his Motion for Class Certification. Denying
26 class certification at this early period in litigation would not be warranted by the
27 facts of this case. As such, the Plaintiff humbly requests that the Defendants
28 Motion to Deny Certification before discovery be denied, and Plaintiff be given
15
1 leave to file a motion for class certification after a reasonable amount of discovery
2 is conducted.
3 What is utterly brazen is that the Defendants presented their preemptive
4 Motion to Deny Certification before discovery is that it is done by way of a
5 pleading that is wholly unsupported by any evidence (not even a single
6 declaration from one of the defendants), and by a set of defendants who stand
7 before the Court after being unveiled as dishonest (i.e. Mahvash Mazgani misstated
8 the truth regarding receiving undated checks from the Plaintiff until such time that
9 she was faced with the tape recordings that showed she was lying under penalty of
10 perjury; whereupon she asserted: that is not my recollection of the
11 conversation.). When the Defendants couldnt find any authority to support their
12 desire to dump their burden of proof onto the Plaintiff for their Motion herein, they
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13 decided to make it up by misquoting cases and statutes and deceptively presenting

14 rules from cases that do not apply to the circumstances herein. The only thing that
15 the Defendants have conclusively shown is their complete disregard for the rules of
16 this court and their flagrant disregard for the laws and statutes of our legal system.
17 The discovery in this case will reveal that the Plaintiff can provide a class
18 that fully comports with Rule 23 and with this Courts Order in Dkt. 40.
19
20 RESPECTFULLY SUBMITTED
21
Dated: September 11, 2017
22
23 Robert B. Salgado, Esq.
24 Attorney for Plaintiff Iraj
Khosroabadi
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CERTIFICATE OF SERVICE
1
Khosroabadi v. Mazgani Social Services, Inc. et al.
2 Case No. 8:17-cv-00644-CJC-KES
3 I hearby certify a copy of the foregoing was served electronically via the
4 Courts electronic filing system this 11th day of September, 2017 to the attorneys
of record herein.
5
Felton Newell ATTORNEY FOR DEFENDANTS:
6 12777 W. Jefferson Blvd. Mazgani Social Services, INC.
Bldg. D, STE. 300 Mahvash Mazgani
7 Playa Vista, CA 90066 Nazanin Mazgani
8 felton@thenewelllawfirm.com Neyaz Mazgani
Shohreh Sharifzadeh
9 Mahnaz Moghaddam
10
11 Executed on this 11th day of September, 2017, at San Diego, California.

12
San Diego, CA 92121
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13 /s/ Robert Salgado
14 Robert B. Salgado, Attorney for

Plaintiff Iraj Khosroabadi
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17

Opposition To Deny Class Certification Before Discovery Mazgani Mahvash Nazanin Neyaz, Mazgani Social Services Defendants

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Case 8:17-cv-00644-CJC-KES Document 53 Filed 09/11/17 Page 1 of 23 Page ID #:1865

PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DENY CLASS CERTIFICATION

1 TO THE HONORABLE JUDGE CORMAC J. CARNEY:

Dated: September 11, 2017

PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DENY CLASS CERTIFICATION

13 THE ISSUES AND ALLEGATIONS OF THIS CASE HIGHLIGHT THE NEED

PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DENY CLASS CERTIFICATION

1 THE DEFENDANTS ATTEMPTED PAY-OFF OF IRAJ DOES NOT MAKE

2 HIS INDIVIDUAL CLAIMS MOOT OR DISQUALIFY HIM AS CLASS

13 IT WOULD LIMIT THE RISK OF INCONSISTENT ADJUDICATIONS ..........15

PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DENY CLASS CERTIFICATION

PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DENY CLASS CERTIFICATION

PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DENY CLASS CERTIFICATION

Amended Complaint (hereinafter 1AC) and Request for Defendants Answer.

PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DENY CLASS CERTIFICATION

1 In a motion to deny class certification, a district court must consider whether

PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DENY CLASS CERTIFICATION

11 state that a plaintiff has 90 days after service of a pleading purporting to

PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DENY CLASS CERTIFICATION

PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DENY CLASS CERTIFICATION

13 in this state, or any other state; or 2) it was a deliberate misquote intended to

PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DENY CLASS CERTIFICATION

11 produce the information necessary to demonstrate that a class action was

PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DENY CLASS CERTIFICATION

11 burden of proof, and thus this motion should be denied.

PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DENY CLASS CERTIFICATION

13 certification before discovery.

PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DENY CLASS CERTIFICATION

1 obtaining Social Security Administration Benefits or California State Benefits in

11 Plaintiffs class meets the numerosity requirement as it includes class

PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DENY CLASS CERTIFICATION

13 declaratory and injunctive relief is sought, classes as small as fourteen may be

PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DENY CLASS CERTIFICATION

PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DENY CLASS CERTIFICATION

PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DENY CLASS CERTIFICATION

PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DENY CLASS CERTIFICATION

1 of Federal Regulations 404.1720. By their own admission, the Defendants

PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DENY CLASS CERTIFICATION

13 there is no heightened risk of inconsistent adjudications. Dkt. 47, Pg. 9.

PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DENY CLASS CERTIFICATION

13 decided to make it up by misquoting cases and statutes and deceptively presenting

PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DENY CLASS CERTIFICATION

11 Executed on this 11th day of September, 2017, at San Diego, California.

13 /s/ Robert Salgado

14 Robert B. Salgado, Attorney for

PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DENY CLASS CERTIFICATION

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