New federal CLRA decision: Galindo v. Financo Financial, Inc.

In Galindo v. Financo Financial, Inc., 2008 WL 4452344 (N.D.Cal. Oct. 3, 2008), the court (Judge William Alsup) wrote this about the CLRA's pre-filing notice requirement:

California courts require “strict” compliance with Section 1782. Outboard Marine Corp. v. Superior Court, 52 Cal.App.3d 30, 40-41, 124 Cal.Rptr. 852 (1975). Plaintiffs filed the present action in state court on June 29, 2007. Plaintiffs admit that they filed no notice as required by Section 1782 until October 1, 2007--months after the state-court action was filed. According to plaintiffs, however, the notice requirements were met because notice was given thirty days before the second amended complaint in this action was filed. Plaintiffs cite to no support for this argument. Significantly, Section 1782 requires that notice be given thirty days before the “commencement of an action” (emphasis added). Notice, therefore, should have been given thirty days before June 29, 2007. This was not done. Defendants request that plaintiffs claim be dismissed with prejudice. The Court is aware that Magistrate Judge James Stiven of the Southern District has dismissed a CLRA claim with prejudice where a plaintiff has failed to satisfy the pre-litigation requirements of Section 1782. See Von Grabe v. Sprint, 312 F.Supp.2d 1285, 1394 (S.D.Cal.2003). The undersigned believes this draconian sanction is unwarranted here. There are other disciplinary ways to deal with any willful disregard of the law, such as attorney's fees awards to name just one. Accordingly, plaintiffs' CLRA claim is hereby DISMISSED WITHOUT PREJUDICE.

What this paragraph overlooks is the fact that the CLRA's pre-filing notice requirement applies only to claims for damages. It is perfectly appropriate to file a CLRA action for injunctive relief without giving any pre-filing notice at all, or to file a CLRA injunctive relief action and then amend the complaint to add a damages claim after the 30-day notice period has expired. If the plaintiff sought both injunctive relief and damages, therefore, neither dismissal nor any form of sanctions would be warranted, in my opinion. At most, an order striking the damages portion of the prayer might be indicated.