Exhibit,Appendix: Elizabeth Tapinekis individually and on behalf of others similarly situated v. Pace University

On August 12, 2022 a Exhibit,Appendix was filed involving a dispute between Elizabeth Tapinekis Individually And On Behalf Of Others Similarly Situated, and Pace University, for Commercial - Contract in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 11/11/2022 09:24 PM INDEX NO. 652902/2022
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 11/11/2022
FILED: NEW YORK COUNTY CLERK 11/11/2022 09:24 PM INDEX NO. 652902/2022
NYSCEF DOC.
ArredondoNO. v.31
University of La Verne, 341 F.R.D.47 (2022) RECEIVED NYSCEF: 11/11/2022
402 Ed. Law Rep. 1029

KeyCiteRed Flag - Severe Negative Treatment West Headnotes (18)
Class DecertifiedArredondov. Universityof La Verne, C.D.Cal.,
August 2, 2022
[1] Federal Civil Procedure • In general;

341 F.R.D. 47 certificationin general

United States District
Court, C.D. California. A party seeking class certification must

affirmatively demonstrate his compliance with
Brianna ARREDONDO, on behalf of herself
the classaction rule,that he must
is, be prepared
and allothers similarly situated,Plaintiff, to prove that there are in fact sufficiently
v. numerous parties,common questions of law
UNIVERSITY OF LA VERNE, Defendant. or fact, etc.;this requires a districtcourt to
conduct rigorous analysis that frequently will
Case No. 2:20-cv-07665-MCS-RAO entail with of
some overlap the merits the

plaintiffs underlying claim. Fed. R. Civ.P. 23.
Signed 02/08/2022

Synopsis
Background: Undergraduate student brought putativeclass [2] Federal Civil Procedure • Factors, grounds,
action againstuniversity alleging breach of contract,unjust objections, and considerations in general
enrichment, and conversion afteruniversitymoved in-person
A plaintiff seeking class certification must
university classes online due to the COVID-19 pandemic.
demonstrate that the four requirements of the
After districtcourt dismissed claims for unjust enrichment
class action rule are met: (1) numerosity, (2)
and conversion, student moved for classcertification.
commonality, (3) typicality,and (4) adequacy
of representation; these requirements effectively
limit the classclaimsto thosefairlyencompassed

Holdings: The DistrictCourt, Mark C. Scarsi,J., heldthat:
by the named plaintiffs claims. Fed. R. Civ.
P. 23(a).
[1]numerosity requirement for classcertification
was met;

[2]commonality requirement for classcertification
was met; .
[3] Federal Civil Procedure • Consideration of
merits
[3]typicalityrequirement for classcertification
was met;
At the classcertificationstage,a courtis required
to examine the merits of an underlying claim
[4]adequacy requirement for classcertification
was met;
only inasmuch as it must determine whether
common questions exist; not to determine
[5]predominance requirement forclass certification
was met;
whether classmembers could actually prevailon

[6] superiorityrequirement for class certificationwas met; the merits of theirclaims. Fed. R. Civ. P. 23.
and

[7] proposed class counsel would be appointed to represent
[4] Federal Civil Procedure Students,
class.
parents, and faculty

Numerosity requirement for class certification

Motion granted. was met, in undergraduate student's putative
class action against university for breach of

Procedural Posture(s): Motion to Class. contract arising from university's decision to
Certify
move in-person university classes online due

MESlftM © 2022 Thomson Reuters. No claim to original U.S. Government Works. 1
FILED: NEW YORK COUNTY CLERK 11/11/2022 09:24 PM INDEX NO. 652902/2022
NYSCEF DOC.
ArredondoNO. v.31
University of La Verne, 341 F.R.D.47 (2022) RECEIVED NYSCEF: 11/11/2022
402 Ed. Law Rep. 1029

to the COVID-19 pandemic; approximately
2,787 undergraduate students were enrolled for [8] Federal Civil Procedure • Representation
of class; typicality;standing in general
spring semester during classperiod at university.
On a motion for class certification,the test
Fed. R. Civ. P. 23(a)(1).
of typicality is whether other members have
the same or similar injury,whether the action
is based on conduct which is not unique to
[5] Federal Civil Procedure • Common interest
the named and whether other class
plaintiffs,
in subjectmatter, questions and relief;damages
members have been injured by the same course
issues
of conduct. Fed. R. Civ. P. 23(a)(3).
Courts construe commonality requirement for

class certificationpermissively. Fed. R. Civ.
P. 23(a)(2)·
[9] Federal Civil Procedure • Students,
parents, and faculty

Typicality requirement for class certification
[6] Federal Civil Procedure • Students, was in undergraduate student's putative
met,
parents, and faculty class action against university for breach of

Commonality requirement for classcertification contract from university's decision to
arising
was met, in undergraduate student's putative move in-person classes online due
university
class action against university for breach of to the COVID-19 pandemic; student identified
contract arising from university's decision to same or similar as breach of contract
injury
move in-person university classes online due for failureto provide on-campus servicesduring
to theCOVID-19 pandemic; common questions semester, was not unique to
spring injury
were capable of common answer among class, named plaintiffbecause contract at issue was

including whether students were entitled to standardized contract all students signed, all
access toon-campus facilities
and services when members had same of to use on-
injury inability
they paid main campus tuitionand fees,whether campus services for which paid, and fact
they
students expected to receive in-
reasonably thatstudent's damages may have been calculated
person and campus-based educational services due to her did not change
differently scholarship
as partof contract, whether universitybreached factthather claims were co-extensive
reasonably
covenant to provide in-person services when it
with her fellow class members. Fed. R. Civ.
closed campus, and whether universitybreached
P. 23(a)(3)
contract by failing to provide services to which

mandatory fees pertained. Fed. R. Civ. P.
23(a)(2).
[10] Federal Civil Procedure • Representation
of class; typicality;standing in general

To determine whether named plaintiffs will
[7] Federal Civil Procedure • Representation
represent courts must resolve
adequately class,
of class; typicality;standing in general
whether named plaintiffsand their counsel have
On a motion forclass representative
certification, conflicts of with
interest other classmembers
any
"typical"
claims are if they are reasonably and whether named plaintiffsand their counsel
coextensive with those of absent classmembers; will prosecute action on behalf of
vigorously

they need notbe substantiallyidentical. Fed. class. Fed. R. Civ. P. 23(a)(4).
R. Civ. P. 23(a)(3).

[11] Federal Civil Procedure • Students,
parents, and faculty

ESEM © 2022 Thomson Reuters. No claim to original U.S. Government Works. 2
FILED: NEW YORK COUNTY CLERK 11/11/2022 09:24 PM INDEX NO. 652902/2022
NYSCEF DOC.
ArredondoNO. v.31
University of La Verne, 341 F.R.D.47 (2022) RECEIVED NYSCEF: 11/11/2022
402 Ed. Law Rep. 1029

Adequacy requirement for class certification each class members paid and market value of
was met, in undergraduate student's putative education they received,and only individualized
class action against university for breach of question was exact amount each student paid
contract arising from university's decision to during semester and simple comparison of value
move in-person university classes online due and market value of online classes would yield
to the COVID-19 pandemic; student asserted
measure of damages foreach student. Fed. R.
that she had represented her willingness
Civ. P. 23(b)(3).
to vigorously prosecute action because she
had sat for deposition and worked with
class counsel, student asserted that class
[15] Federal Civil Procedure • Common interest
counsel was experienced and had decades of
in subject matter,questions and relief; damages
experience prosecuting classactions,and student
issues
represented that she had no conflicts with other
In the predominance inquiry for class
classmembers. Fed. R. Civ. P. 23(a)(4).
certification,plaintiffsmust show that damages
are capable ofmeasurement on a classwide basis,
though damages calculationissues cannot alone
[12] Federal Civil Procedure • Common interest defeat classcertification;damages are capable
in subjectmatter, questions and relief;damages of measurement on a classwide basis when the
issues damages calculationis attributable
to a plaintiff
s
Predominance inquiry for class certification
theory of harm. Fed. R. Civ. P. 23(b)(3).
tests whether proposed classes are sufficiently
cohesive to warrant adjudication by

representation. Fed. R. Civ. P. 23(b)(3)·
[16] Federal Civil Procedure • Students,
parents, and faculty

Superiority requirement for class certification
[13] Federal Civil Procedure • Common interest was met, in undergraduate student's putative
in subjectmatter, questions and relief;damages class action against for breach of
university
issues contract from university's decision to
arising
Predominance inquiry for class certification move in-person university classesonline due to
focuses on whether common questions present the COVID-19 pandemic; class members likely
significant aspect of case and they can be had littleinterestinprosecuting separate actions
resolved for allmembers of class in single because each putative class member's claims
were probably insufficientto justifylitigation's
adjudication. Fed. R. Civ. P. 23(b)(3).
high risks and costs,there appeared to be no
other pending litigationbrought on behalf of
university's students,concentrating litigationin
[14] Federal Civil Procedure • Students,
district court eliminated risk of inconsistent
parents, and faculty adjudication and promoted fairand efficientuse
Undergraduate student presented articulable of judicial and did notprovide
system, university
theory of damages thatwas capable of classwide information to conclude trialof affmnative
any
resolution, and thus predominance requirement defenses would require individualized evidence.
for class certification was met, in student's
Fed. R. Civ. P. 23(b)(3).
putative classactionagainst universityforbreach
of contract arising from university'sdecision to
move in-person university classes online due
to the COVID-19 pandemic; for period class [17] Federal Civil Procedure • Superiority,

members took online classes inlieuof in-person manageability, and need ingeneral

classes, damages were differencebetween what

MESlftM © 2022 Thomson Reuters. No claim to original U.S. Government Works. 3
FILED: NEW YORK COUNTY CLERK 11/11/2022 09:24 PM INDEX NO. 652902/2022
NYSCEF DOC.
ArredondoNO. v.31
University of La Verne, 341 F.R.D.47 (2022) RECEIVED NYSCEF: 11/11/2022
402 Ed. Law Rep. 1029

Superiority inquiry for class certification AND DENYING EX PARTE APPLICATION
requires determination of whether objectives of TO FILE SURREPLY (ECF NOS. 112, 113)
particularclassaction procedure will be achieved
MARK C. SCARSI, UNITED STATES DISTRICT JUDGE
inparticular case. Fed. R. Civ. P. 23(b)(3).

PlaintiffBrianna Arredondo moved for classcertificationon
November 8,2021. Mot., ECF No. 70 ; seealso Mem., ECF

[18] Federal Civil Procedure • Students,
No. 70-1. Defendant University of La Verne opposed the

and motion, OppI, ECF No. 86, and Plaintiffreplied, Reply,
parents, faculty
1
Proposed class counsel would be appointed ECF No. 93. The Court heard argument on this motion on

to represent in undergraduate student's January 3, 2022. ECF No. 102. For thefollowing reasons,the
class,
putative classactionagainst forbreach Court GRANTS the motion for classcertification.
university
of contract arising from university'sdecision to
move in-person university classes online due
. L BACKGROUND
to the COVID-19 pandemic; counsel had done
Plaintifffiled this putative class action in federal court,
significantwork in identifyingand investigating
alleging breach of contract, unjust enrichment, and
potential claims, including bringing meritorious
conversion after Defendant moved in-person university
motion for class certification supported by
classes onlinedue to theCOVID-19 pandemic. See generally
ample evidence, counsel had wealth of
SAC, ECF No. 44. Following a motion to dismiss,the breach
experience handling class actions, only firm
of contract claim remains. ECF No. 50. Following several
without substantialclass action experience had
jurisdictionaland discovery disputes, see, ECF
e.g., Nos. 65,
experienced co-counsel as support,counsel had
69, 71, 90, 109, the Court resolves thismotion for class
demonstrated strong knowledge of applicable
certification.
law throughout briefing process for class
certificationmotion, and counsel demonstrated

they would commit sufficient resources to
IL LEGAL STANDARD

represent classin case. Fed. R. Civ. P. 23(g).
[1] [2] Federal Rule of Civil Procedure 23 requires a

partyseeking classcertification
to "affirmativelydemonstrate
his compliance with the Rule-that is,he must be prepared
to prove that thereare in factsufficiently numerous parties,
etc."
Attorneys and Law Firms common questions of law or fact, Wal-Mart Stores,
Inc. v. Dukes, 564 U.S. 338, 350, 131 S.Ct. 2541, 180
*49 Perry Leonard Segal, Charon Law, Redwood City,CA, L.Ed.2d 374 (2011).This requires a district
court to conduct
Brett R. K. Pro Hac Michael A. analysis"
Cohen, Jeffrey Brown, Vice, "rigorous that frequently"will entailsome overlap
Tompkins, Pro Hac Vice,Leeds Brown Law PC, Carle Place, claim."
with the merits of the plaintiff
s underlying Id.
NY, David R. Shoop, Thomas S. Alch,Shoop APLC, Beverly
at 351, 131 S.Ct. 2541 (internalquotation marks omitted).
Hills, CA, Jason P. Sultzer,Pro Hac Vice, The SultzerLaw
. . A plaintiff
must demonstrate that the four requirements of
Group PC, Poughkeepsie, NY, Mindy Dolgoff, Pro Hac Vice,
The SultzerLaw Group PC, New York, NY, forPlaintiff. Rule 23(a) are met: (1) numerosity, (2) commonality,

(3) typicality,and (4) adequacy of representation. These
David Richard Sugden, Delavan J. Dickson, Marlynn P· requirements "limit the classclaims tothose
effectively fairly
Howe, JulieR. Trotter,Call and Jensen PC, Newport Beach, claims."
encompassed by the named plaintiffs Id at349,
CA, forDefendant.

131 S.Ct.2541 (quoting Gen. Tel.Co. of Sw. v.Falcon,
457 U.S. 147, 155, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)).

*50 ORDER GRANTING MOTION FOR The party also must prove the class meets one ofthe three

CLASS CERTIFICATION (ECF NO. 70) alternativeprovisions in Rule 23(b). Comcast Corp. v.

MESlftM © 2022 Thomson Reuters. No claim to original U.S. Government Works. 4
FILED: NEW YORK COUNTY CLERK 11/11/2022 09:24 PM INDEX NO. 652902/2022
NYSCEF DOC.
ArredondoNO. v.31
University of La Verne, 341 F.R.D.47 (2022) RECEIVED NYSCEF: 11/11/2022
402 Ed. Law Rep. 1029

Behrend, 569 U.S. 27, 33, 133 S.Ct. 1426, 185 L.Ed.2d 515 class members could actually prevail on the merits of their

(2M3) claims."
Ellis v. Costco Wholesale Corp., 657 F.3d 970,
983 n.8 (9th Cir. 2011). The Court rejects Defendant's

Where, as here,the plaintiffseeks certification
under Rule . mini-trial.'
,
invitationto turn classcertificationinto a Id
23(b)(3), the plaintiffmust show "that the questions of law
or fact common to class members predominate over any
questions affectingonly individual members, and that a class A. Numerosity
action is superiorto other available methods forfairly and
[4] Rule 23(a)(1) requiresthatthe class "be so numerous
controversy."
efficientlyadjudicating the Fed. R. Civ. P.
impracticable."
thatjoinder of allmembers is Fed. R. Civ.
23(b)(3). In evaluating predominance and superiority,courts
members' P. 23(a)(1).Courts routinely find thisrequirement satisfied
consider four factors: "(A) the class interests
for classes±adave 40 or more membersAstorgav Couny
in individually controlling the prosecution or defense of
of Los Angeles, No. CV 20-9805-AB (AGRx), 2021 WL
separate actions;(B) the extent and nature of any litigation
1536128, at *2, 2021 U.S. Dist.LEXIS 78138, at *7 (C.D.
concerning the controversy already commenced by oragainst
. Cal. Mar. 17, 2021). Approximately 2,787 undergraduate
class members; (C) the desirabilityor undesirability of
students were enrolled for the spring 2020 semester at
concentrating the litigation of the claims in the particular
University of La Verne. Tompkins Decl. Ex. HH, at 6,ECF
forum; and (D) the likely in
difficulties managing a class
,' No. 70-19. Thus, the proposed classmeets the numerosity
action. Id.
requirement.

HL DISCUSSION
B. Commonality
Plaintiff proposes a class of "[a]ll persons who paid
[5] [6] Rule 23(a)(2) requires "questions of law or fact
tuition and/or the Mandatory Fees at La Verne's Main/
class."
common to the Courts construe this requirement
Central campus location during the Spring 2020 term/
semester." 2 permissively. Hanlon v. Chrysler Corp., 150 F.3d 1011,
Mem. 9. Defendant argues that the Court *51
"persons" 1019 (9th Cir. 1998). Even a single common question of
should construe in this class definition as only
undergraduate students. OppI 3-4. Because Plaintiffonly law or fact will do. 564 U.S. at 131 S.Ct.
Dukes, 359,
provided evidence of a certifiableclass as toundergraduate 2541. Plaintiffidentifiesseveral common questions that are
students, see generally Mem., the Court agrees with
answer"
capable of "a common across the class. Id at
Defendant and certifiesthe class with the understanding
persons" 352, 131 S.Ct. 2541. These include: (i)whether students were
that "all means only University of La Verne
entitledto receiveaccess to Defendant's in-
campus, facilities,
undergraduate students.
person technologies, and other in-person and campus-based
educational serviceswhen they paid main campus tuitionand
Plaintiff asserts she presents sufficient evidence to certify
fees;(ii)whether students would reasonably expect toreceive
her proposed class and moves thisCourt to appoint her as
in-person and campus-based educational services as part
class representative and Charon Law, Shoop APLC, The
of the student-university contract; (iii)whether Defendant
SultzerLaw Group PC, and Leeds Brown Law PC as class
breached the covenant to provide on-campus and in-person
counsel. See generally Mem. Defendant argues Plaintiff
educational services during the spring 2020 semester when
3
cannot demonstrate typicality, that her proposed method
it closed campus, limited access to all campus facilities
of calculatingdamages defeats predominance, and that she
and services,and delivered emergency remote teaching in
cannot demonstrate superiority.See generally OppI.
an online-only format; (iv) whether Defendant has any
affirmativedefenses; and (v)whether Defendant breached the
[3] Defendant also argues thatclasscertificationis improper
student-university contractby failing to provide the services
because Plaintiffcannot prove the breach of contract claim.
and facilities
to which the Mandatory Fees pertained after
This argument is without merit. At the class certification
4
mid-March 2020. Mem. 11. Thus, theproposed classmeets
stage, a court is required to examine the merits of an
the commonality requirement.
underlying claim ...only inasmuch as it must determine
whether common questions exist; not to determine whether

MESlftM © 2022 Thomson Reuters. No claim to original U.S. Government Works. 5
FILED: NEW YORK COUNTY CLERK 11/11/2022 09:24 PM INDEX NO. 652902/2022
NYSCEF DOC.
ArredondoNO. v.31
University of La Verne, 341 F.R.D.47 (2022) RECEIVED NYSCEF: 11/11/2022
402 Ed. Law Rep. 1029

While Defendant is correct that the damages calculation
C. Typicality for Arredondo may vary from other class members', this

Rule requires that "the claims would only change the result of the calculation, not the
[7] [8] [9] 23(a)(3)
or defenses of the representative parties are typical of the method. A amount
differing of damages does not change the
class." co-extensive"
claims or defenses of *52 the "[R]epresentative factthat Arredondo's claims are "reasonably
'typical'
claims are if they are reasonably co-extensive
with those of her fellow class members. Hanlon, 150
with those of absent class members; they need not be
F.3d at 1020. Defendant's argument, if credited, would
identical." vitiate class action where damages are not identical
substantially Hanlon, 150 F.3d at1020. "The any
testof typicality is whether othermembers have the same or
due topotential individualized offsets.A Rule 23(b)(3)
similarinjury,whether the action isbased on conduct which
class actioncontemplates that damages calculations may be
is notunique to thenamed plaintiffs,and whether other class
individualized and that differentcategories of offsets, like
conduct."
members have been injured by the same course of
scholarships, can exist.See Leyva v. Medline Indus. Inc.,
Ellis,657 F.3d at 984 (internal quotation marks omitted).
716 F.3d 510, 513 (9th Cir.2013) (holding a districtcourt
injury"
Plaintiffidentifiesthe "same or similar as abreach of
abused itsdiscretion by denying class certification
solely on
contractforthe failureto provide on-campus services during the basis of individualized damages questions). Thus, the
the Spring 2020 semester. Mem. 13-15. This injurywas not
proposed classmeets thetypicalityrequirement.
unique to the named plaintiffbecause the contract at issue
was a standardized contract all students signed. Id at 16.
All members have the same injury-the to use on- D.
inability Adequacy
campus servicesforwhich they paid.Id at 15-16.
[10] Rule 23(a)(4) requires that "the representative
partieswill fairlyand adequately protect the interestsof
Defendant argues that Arredondo is not a typicalclass ,, .
the class. "To determine whether named plaintiffswill
representative because she cannot demonstrate she was
adequately represent a class, courts must resolve two
injured by any conduct. OppI 9--11. Defendant's theory .
questions: '(1)do the named plaintiffs
and theircounsel have
is unsupported by adequate evidence. First, Defendant
any conflictsof with
interest other classmembers and (2)will
citesdeposition testimony where Arredondo was unable to .
the named plaintiffsand their counsel prosecute the action
articulatethe value of not able to attend classes in-
being
class?' "
person or the harm that resultedfrom breach. vigorously on behalf of the Ellis,657 F.3d at 985
monetary any
OppI 9-10 Howe Decl. Ex. at 286-
(citing 3, 164-65, 273, 150 F.3d at 1020).

Case Info

Judge

Suzanne J. Adams Track Judge’s New Case

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Document Filed Date

November 11, 2022

Case Filing Date

August 12, 2022

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Exhibit,Appendix: Elizabeth Tapinekis individually and on behalf of others similarly situated v. Pace University

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