Litigating California Wage & Hour and Labor Code Class Actions

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held inadequate (because he never was an employee), obtain a court order for a mailing to assist him recruit a “proper” class representative? That question was answered “no” in First American Title Insurance Company v. Superior Court. 450 The plaintiff, who was not a member of the class he purported to represent, and who had no other interest in the litigation, obtained an order for precertification discovery so that he could locate a class representative. In holding that the order was an abuse of discretion, the appellate court concluded, “the potential abuse of the class action [precertification discovery] procedure greatly outweighs the rights of the parties under the circumstances.” 451 The court noted that it would counter the public policy enshrined in Prop 64 to allow people without any injury in fact to sue and then use the discovery process to troll for class representatives. 452 The appellate court also noted that putative class members, if they really felt aggrieved, were free to come forward and bring their own case: Any further legal action can be pursued by members of the class, if they so desire. [Plaintiff] makes no argument that any future action they might pursue would be time-barred, or offers any other reason why the class members might be denied relief if this action is unable to proceed on their behalf. In short, the potential for abuse of the class action procedure is overwhelming, while the interests of the real parties in interest are minimal. Precertification discovery under these circumstances would be an abuse of discretion. 453 However, in CashCall, Inc. v. Superior Court, 454 precertification discovery was permitted in order to locate proper class representatives, even though the original representatives, as well as the first set of replacements, were all found to not be members of the putative class. CashCall involved a suit against a lender who allegedly had illegally monitored certain of its collection calls in violation of the California Penal Code. 455 The defendant notified the plaintiffs that none of the three named class representatives had been subject to monitoring. Five new class representatives were then substituted in, but it again turned out that none of these individuals had had their calls monitored. 456 The trial court then ordered 450 451 452 453 454 455 456 146 Cal. App. 4th 1564 (2007). See also Cryoport Sys. v. CAN Ins. Co., 149 Cal. App. 4th 627 (2007) (“Best Buy Stores does not stand for the proposition that a plaintiff with no interest in the action has a right to discovery to find a substitute plaintiff to keep the action alive.”). Id. at 1577. Id. Id. 159 Cal. App. 4th 273 (2008). Id. at 278. Id. at 280. Seyfarth Shaw LLP | www.seyfarth.com Litigating California Wage & Hour Class Actions (12th Edition) 100
CashCall to disclose the identities of the 551 individuals for whom collection calls had been monitored so that proper class representatives could be substituted in. 457 The Court of Appeal determined that the trial court had not abused its discretion in permitting discovery of the class list for the purpose of locating proper class representatives. 458 The court distinguished First American, noting that, in that case, “the class members’ rights against the defendant had already been protected and enforced through state agency investigations and settlements with the defendant.” 459 This was not the case in CashCall, where the putative class had no knowledge of the alleged unlawful conduct and the court noted that “absent precertification discovery and continuation of this class action, it appears unlikely any of the class members will have a realistic opportunity to assert claims, and potentially obtain relief.” 460 More recently, Safeco v. Superior Court 461 was decided similarly to CashCall, with the appellate court emphasizing that First American “does not stand for the proposition that a plaintiff who was never a class member in a UCL action necessarily is not entitled to conduct precertification discovery to identify a substitute class representative.” 462 However, in Starbucks Corp. v. Superior Court, the California Court of Appeal reversed the trial court’s order permitting plaintiffs to conduct discovery to locate a suitable class representative. 463 There, the plaintiffs had brought a putative class action against Starbucks, alleging that the company’s preprinted job application improperly sought information relating to minor marijuana convictions that were over two years old. 464 But because the named plaintiffs had never been convicted of any such crimes, they were dismissed as class representatives on summary judgment. 465 Thereafter, class counsel amended their complaint and obtained an order from the Superior Court permitting them to discover the names of job applicants who had disclosed minor marijuana convictions on their applications, in order to locate “suitable” class representatives. 466 The Court of Appeal overturned the order, holding that the trial court had abused its discretion in allowing this 457 458 459 460 461 462 463 464 465 466 Id. at 283. Id. at 292. Id. at 298. Id. 173 Cal. App. 4th 814 (2009). Id. at 829. Starbucks Corp. v. Superior Court, 194 Cal. App. 4th 820 (2011). Id. at 721. Id. Id. Seyfarth Shaw LLP | www.seyfarth.com Litigating California Wage & Hour Class Actions (12th Edition) 101
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Litigating California Wage & Hour a
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Table of Contents I. Introduction a
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A. Disclosure of Class Member Names
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associated statutory penalties. 1 T
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who does not meet the threshold com
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exempt work is of a kind which in e
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3) The employee performs his or her
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decisions have concluded that under
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Bell court to look beyond the Wage
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place of business, would that quali
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IWC had the authority to promulgate
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stores” by providing them a porti
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declare such a system illegal witho
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employers should be able to defend
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waive the right to reimbursement, s
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Due to the ambiguity in the meaning
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For each workday the employer fails
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Arguably, no additional $100-per-pa
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permitted” the employee to work t
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federal decisions also held that an
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for all overtime hours worked. The
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much broader, such as the court’s
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In the appeal of Chau, the appellat
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years before the lawsuit, or for an
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imposition of penalties, 194 routin
Page 51 and 52: In one such class action, Elliot v.
Page 53 and 54: First, there has been a substantial
Page 55 and 56: Recent court decisions have begun t
Page 57 and 58: of her hours was paid at a rate of
Page 59 and 60: the limitations period for a penalt
Page 61 and 62: passage, then the employee could st
Page 63 and 64: all, but rather simply to proceed w
Page 65 and 66: Shortly thereafter, another Divisio
Page 67 and 68: and the ability to bring a collecti
Page 69 and 70: XIII. Class Action Fairness Act of
Page 71 and 72: the plaintiff is “master of her c
Page 73 and 74: alleged conduct or any related cond
Page 75 and 76: Initially, the decisions were split
Page 77 and 78: XIV. Class Certification A. General
Page 79 and 80: expectations and the realistic requ
Page 81 and 82: In the immediate wake of Sav-On, th
Page 83 and 84: Similarly, employers may argue that
Page 85 and 86: A 5 to 4 ruling reversed the Ninth
Page 87 and 88: facility to the next, or variations
Page 89 and 90: employer’s defense arsenal, and t
Page 91 and 92: In reaching this conclusion, the Co
Page 93 and 94: party who seeks the same relief, pr
Page 95 and 96: is to be so maintained.” This det
Page 97 and 98: speech. 429 Therefore, the court he
Page 99 and 100: Puerto, or Crab Addison cases would
Page 101: epresentative. That question was an
Page 105 and 106: nothing but still are bound by the
Page 107 and 108: Initially, there appeared to be a v
Page 109 and 110: the case. As any one of these class
Page 111 and 112: have any great impact on class sett
Page 113 and 114: plaintiff’s attorney and putative
Page 115 and 116: the California Supreme Court issued
Page 117 and 118: While California courts have essent
Page 119 and 120: The plaintiffs attempted to justify
Page 121: Breadth. Depth. Results. www.seyfar
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