Litigating California Wage & Hour and Labor Code Class Actions

is to be so maintained.” This determination may be made on motion of either
plaintiff or defendant – or on the court’s own motion. 417
Because the City of San Jose case is from the 1970s, plaintiffs’ counsel often argue that its
statement did not survive the later enactment of the complex rules within the California
Rules of Court, which set a special briefing schedule for motions to “certify a class;
determine the existence of and certify subclasses; amend or modify an order certifying a
class; or decertify a class.” 418 Plaintiffs argue that the absence from this list of “motion to
deny certification” was a deliberate decision to preclude such a motion.
The employer’s cause to allow such motions was aided by Seyfarth Shaw’s victory in
Vinole v. Countrywide Home Loans. 419 There, the Ninth Circuit upheld the grant of a motion
to deny class certification and rejected the plaintiffs’ argument that such motions were
inappropriate, especially when they were not decided simultaneously with a plaintiffs’
motion for class certification. 420 The court rejected the plaintiffs’ argument, noting that Rule
23 of the Federal Rules of Civil Procedure places no limitations on which party may move
for a determination whether a case should proceed as a class action. The court also noted
that it is at the discretion of the trial court to decide when to rule on a certification or
decertification motion and that there is no rule that the court must wait for the discovery
period to end. 421
Following the issuance of the district court decision in Vinole, the Second District Court of
Appeal held that the same rules apply under California civil procedure. In In re BCBG
Overtime Cases, 422 the court held that “under both California and federal law, either party
may initiate the class certification process.” Relying on Carabini v. Superior Court, 423 the
court held that plaintiffs could file a motion for class certification, or defendants could move
for a determination that the case should not proceed as a class action. As in Vinole, a key
element in the court’s analysis was whether the plaintiffs had sufficient opportunity to
conduct relevant discovery. The court determined that the plaintiffs before it had plenty of
time (more than two years) to conduct discovery relevant to class certification issues, and
417
418
419
420
421
422
423
City of San Jose, 12 Cal. 3d at 453-54.
California Rules of Court, Rule 3.764.
571 F.3d 935 (9th Cir. 2009).
Most cases approving defense motions to deny certification involve the filing of cross-motions by the defendant and the
plaintiff. See, e.g., Maddock v. KB Homes, Inc., 248 F.R.D. 229 (C.D. Cal. 2007) (motion for class certification and
motion to deny certification filed simultaneously; court granted defendant’s motion and denied plaintiffs’ motion).
571 F.3d at 943.
163 Cal. App. 4th 1293, 1299 (2008).
26 Cal. App. 4th 239, 242 (1994).
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