Litigating California Wage & Hour and Labor Code Class Actions

In 1971, in La Sala v. American Savings & Loan Association, 441 the court held that, under
the facts before it, the plaintiff should have been permitted to substitute a proper class
representative for a class representative who was inadequate. A key aspect of the
decision, however, was that the defendant had engaged in questionable conduct that
rendered the plaintiff inadequate. More specifically, the case addressed the alleged
impropriety of a fee charged by the defendant savings & loan. The defendant excused the
plaintiff from paying the fee as a basis to argue that the plaintiff suffered no harm and, thus,
lacked standing to represent a class of injured customers.
The court left open the question of whether the plaintiff’s lack of any injury rendered him
inadequate to represent the putative class as a matter of law, but it held that a defendant
should not be able to defeat a class action by simply paying off class representatives oneby-one
as they come forward:
In the present case, American has waived its acceleration clause only as to [the
plaintiffs]. If other borrowers bring a class action, American may again waive as
to those representative borrowers, and again move to dismiss the action. Such a
procedure could be followed ad infinitum for each successive group of
representative plaintiffs. If defendant is permitted to succeed with such revolving
door tactics, only members of the class who can afford to initiate or join litigation
will obtain redress; relief for even a portion of the class would compel
innumerable appearances by individual plaintiffs. 442
La Sala has been interpreted to permit a plaintiff to amend the complaint to add a new
class representative when the original plaintiff, although a bona fide member of the putative
class, has particular traits that make him an inadequate class representative. 443 Thus,
under La Sala, a plaintiff who is deemed inadequate generally can find and substitute in
another class representative. 444
La Sala left open the important question of whether the plaintiff may use the discovery
process as a mechanism to obtain contact information for other putative class members for
the express purpose of asking them if they would be willing to be a substitute class
441
442
443
444
5 Cal. 3d 864 (1971).
Id. at 873.
But see Howard Gunty Profit Sharing Plan v. Superior Court, 88 Cal. App. 4th 572, 580-81 (2001) (leave to substitute
class representative may be inappropriate where trial court determines that the class representative was a “professional
plaintiff” with a history of abusing the class action procedure).
See, e.g., Aguiar v. Cintas Corp. No. 2, 144 Cal. App. 4th 121, 137 (2006) (“the second amended complaint may be
amended once again on remand to add another named plaintiff should it be determined that . . . [plaintiff] needs an
additional, adequate representative”); Shappell Indus., Inc. v. Superior Court, 132 Cal. App. 4th 1101, 1109 (2005) (“[La
Sala] demonstrate[s] that California courts recognize and preserve the rights of absent class members, even before the
issue of certification has been determined”).
Seyfarth Shaw LLP | www.seyfarth.com Litigating California Wage & Hour Class Actions (12th Edition) 98