Litigating California Wage & Hour and Labor Code Class Actions

XIV. Class Certification
A. General Requirements
In order to certify a class action, plaintiffs must show “the existence of an ascertainable
class and a well-defined community of interest among the class members.” The community
of interest requirement embodies three factors: (1) predominant common questions of law
or fact, (2) class representatives with claims or defenses typical of the class, and (3) class
representatives who can adequately represent the class.” 353 There must also be enough
class members to make the effort worthwhile. These elements are referred to as
ascertainability, commonality or predominance, typicality, adequacy, and numerosity.
Class certification is most often defeated on commonality or predominance grounds, and
less often on the grounds of typicality, adequacy, ascertainability, and numerosity.
In the past, some defendants resisted class certification by arguing that plaintiffs would not
be able to establish liability on the merits. In 2000, the California Supreme Court formally
rejected such a practice, holding that a trial court could not consider the factual or legal
merits in deciding class certification, except to the (limited) extent that the merits affected
the ascertainability of the class. 354 In other words, while it is appropriate for the trial court to
examine the evidence closely to determine if the relevant class action factors have been
met (e.g., predominance of common issues), the court may not deny class certification on
the ground that the class claims ultimately lack substantive merit. 355
However, as discussed in more detail below, courts must make necessary factual and legal
inquiries regardless of whether they overlap with the merits, in order to ascertain whether
the claims alleged are amenable to resolution on a class-wide basis. 356 Recent
353
354
355
356
Richmond v. Dart Indus., Inc., 29 Cal. 3d 462, 470 (1981).
Linder v. Thrifty Oil, 23 Cal. 4th 429 (2000). The procedure disallowed in Linder should be distinguished from a precertification
motion for summary judgment as to the individual’s claims. Such a motion, if granted as to all named
plaintiffs, effectively would defeat class certification because it would remove all adequate representatives. Allen v.
Pacific Bell, 348 F.3d 1113, 1115 (9th Cir. 2003). Such a pre-certification summary judgment would not bind the class,
however.
See Brinker Restaurant Corp. v. Superior Court, 2012 WL 1216356 at * 7 (Cal. 2012) (“Presented with a class
certification motion, a trial court must examine the plaintiff’s theory of recovery assess the nature of the legal and factual
disputes likely to be presented, and decide whether individual or common issues predominate. To the extent the
propriety of certification depends upon disputed threshold legal or factual questions, a court may, and indeed must,
resolve them”); Bartold v. Glendale Fed. Bank, 81 Cal. App. 4th 816, 829 (2000) (“when the merits of the claim are
enmeshed with class action requirements, the trial court must consider evidence bearing on the factual elements
necessary to determine whether to certify the class”).
Wal-mart Stores, Inc. v. Dukes , 131 S. Ct. 2541, 2551-52 (2011) (citing Gen. Telephone Co. of S.W. v. Falcon, 457
U.S. 147, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982)); see also Ellis v. Costco Wholesale Corp., 657 F.3d 970, 984 (9th
Cir. 2011) (holding the district court erred by failing to conduct a “rigorous analysis” of the merits to determine whether
the plaintiffs had established commonality under Rule 23); In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 318
(3d Cir. 2008) (class certification requires “thorough examination” of factual and legal allegations; “rigorous analysis
may include a preliminary inquiry into the merits” and consideration of “the substantive elements of the plaintiffs’ case in
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