Litigating California Wage & Hour and Labor Code Class Actions

y redefining the proposed class to exclude the class representative from the original case
where class certification was denied. Rather, the distinction between proposed class 1 and
proposed class 2 would need to be meaningful, as it was in Bufil. For now, it appears that
Alvarez remains good law and should still provide significant protections against serial
class actions on the same theory.
H. Defense Motions to Deny Class Certification (“Vinole Motions”)
It is often to the employer’s tactical advantage to file the motion that triggers the resolution
of the question of whether a class should be certified. By filing first, the employer can time
the briefing to its advantage. If the employer can quickly assemble the evidence it needs to
defeat class certification, then filing such a motion may put pressure on the plaintiffs’
lawyers (who often take on many cases) to oppose such a motion with less preparation
than they would have if they could delay discovery for months and months until they felt
prepared to file a motion for certification. Furthermore, filing first gives the employer the
opportunity to file a reply brief, which it usually may not file if the plaintiff moves for class
certification first.
The plaintiffs’ bar does not agree that employers should be permitted move to deny class
certification before the plaintiffs file their own certification motion. Plaintiffs’ lawyers often
contend that such a motion robs the plaintiff of the right to define the class it wants certified
and establish that such a class is possible. The plaintiffs also contend that such motions
are not allowed under California procedure (or under federal procedure if the case has
been removed to federal court). 415 A problem the plaintiffs face with this argument is that
the California Supreme Court rejected it more than thirty years ago in City of San Jose v.
Superior Court. 416 There, the court stated in no uncertain terms that either party can move
for class certification and that such determinations should take place as soon in the
litigation as practicable:
[W]e have directed [lower courts] to rule 23 of the Federal Rules of Civil
Procedure, which provides: “As soon as practicable after the commencement of
an action brought as a class action, the court shall determine by order whether it
415
416
was overruled sub silentio by the United States Supreme Court’s discussion of virtual representation in Taylor v.
Sturgell, 553 U.S. 880 (2008)).
However, California Rules of Court, Rule 3.764(a) appears to contemplate such motions (“A party may file a motion to: .
. . Decertify a class”).
12 Cal. 3d 447 (1974); accord Chevron USA, Inc. v. Vermilion Parish Sch. Bd., 364 F.3d 607 (5th Cir. 2004) (upholding
trial court’s grant of defendants’ motion to deny class certification); Sipper v. Capital One Bank, 2002 U.S. Dist LEXIS
3881 (C.D. Cal. Feb. 28, 2002) (granting “motion to deny class certification”); Lightfoot v. Gallo Sales Co., 15 Fair Empl.
Prac. Cas. (BNA) 615, 616 (N.D. Cal. 1977) (granting “Motion That Class Be Denied Certification Pursuant to Rule
23(c)(1)”).
Seyfarth Shaw LLP | www.seyfarth.com Litigating California Wage & Hour Class Actions (12th Edition) 92