Class Action Requirement Statute California
The California Supreme Court has recognized the class action as “a means to prevent a failure of justice in our judicial system” (Linder v. Thrifty Oil Co. (2000) 23 Cal. 4th 429, 434 (“Linder“)) and “an essential tool for the protection … against exploitative business practices” (State of Cal. v. Levi Straus & Co. (1986) 41 Cal. 3d 460, 471).
At certification, the court should not focus on merits, but on whether the case meets requirements for class treatment. (Linder, at 443.) Class actions are statutorily authorized “when the question is one of common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court.” (Code Civ. Proc. § 382; Lee v. Dynamex, Inc. (2008) 166 Cal. App, 4th 1325, 1332.)
Thus, class certification is appropriate where the party moving for class certification shows the following five elements: (1) the proposed class is numerous yet ascertainable; (2) common issues of law and fact predominate; (3) the claims of the proposed class representatives are typical of the class; (4) The proposed class representatives will adequately represent the class; and, (5) the class action is the superior means to resolve the litigation. This case soundly meets each of these requirements.
California class action is authorized under Code of Civil Procedure section 382 which states:
Party who cannot be joined as plaintiff being made defendant; Defense by parties on behalf of others having common interest
If the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.
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Elements of Class Action in California
There are two essential elements for maintenance of a class action: an ascertainable class and a well-defined community of interest in the questions of law and fact involved. In order for there to be an ascertainable class, the right of each individual to recover may not be based on a separate set of facts applicable only to him. Community of interest does not depend upon an identical recovery, and the fact that each member of the class must prove his separate claim to a portion of any recovery by the class is only one factor to be considered in determining whether a class action is proper. Wilner v. Sunset Life Ins. Co., 78 Cal. App. 4th 952
Cal. Civ. Proc. Code § 382 authorizes class action suits in California when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court. The party seeking certification as a class representative must establish 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. Richmond v. Dart Industries, Inc., 29 Cal. 3d 462.
Motion to certify or decertify a class or amend or modify an order certifying a class
Rule 3.764.
(a) Purpose
Any party may file a motion to:
(1) Certify a class;
(2) Determine the existence of and certify subclasses;
(3) Amend or modify an order certifying a class; or
(4) Decertify a class.
(b) Timing of motion, hearing, extension, deferral
A motion for class certification should be filed when practicable. In its discretion, the court may establish a deadline for the filing of the motion, as part of the case conference or as part of other case management proceedings. Any such deadline must take into account discovery proceedings that may be necessary to the filing of the motion.
(c) Format and filing of motion
(1) Time for service of papers
Notice of a motion to certify or decertify a class or to amend or modify a certification order must be filed and served on all parties to the action at least 28 calendar days before the date appointed for hearing. Any opposition to the motion must be served and filed at least 14 calendar days before the noticed or continued hearing, unless the court for good cause orders otherwise. Any reply to the opposition must be served and filed at least 5 calendar days before the noticed or continued date of the hearing, unless the court for good cause orders otherwise. The provisions of Code of Civil Procedure section 1005 otherwise apply.
(2) Length of papers
An opening or responding memorandum filed in support of or in opposition to a motion for class certification must not exceed 20 pages. A reply memorandum must not exceed 15 pages. The provisions of rule 3.1113 otherwise apply.
(3) Documents in support
The documents in support of a motion for class certification consist of the notice of motion; a memorandum; evidence in support of the motion in the form of declarations of counsel, class representatives, or other appropriate declarants; and any requests for judicial notice.
(4) Documents in opposition
The documents in opposition to the motion consist of the opposing party’s memorandum; the opposing party’s evidence in opposition to the motion, including any declarations of counsel or other appropriate declarants; and any requests for judicial notice.
(Subd (c) amended effective January 1, 2007.)
(d) Presentation of evidence
Evidence to be considered at the hearing must be presented in accordance with rule 3.1306.
(Subd (d) amended effective January 1, 2007.)
(e) Stipulations
The parties should endeavor to resolve any uncontroverted issues by written stipulation before the hearing. If all class issues are resolved by stipulation of the named parties and approved by the court before the hearing, no hearing on class certification is necessary.
In an action initiated by a bank seeking a deficiency judgment from a vehicle purchaser, class members were impermissibly provided an opportunity for one-way intervention when the trial court resolved the central issue in the claims — whether the bank’s deficiency notices violated CC § 2983.2 and the unfair competition law (UCL), B & P C §§ 17200 et seq. — concurrently with certifying the class under CCP § 382. It did not matter that the purchaser of a repossessed vehicle, brought the substantive motion as a defendant and brought the motion for class certification as plaintiff in a cross-action. Fireside Bank v. Superior Court (Cal. Apr. 16, 2007), 40 Cal. 4th 1069
Trial court erred in sustaining a demurrer to class claims as untimely; the record was unclear as to whether a prior class action asserting identical wage claims had been dismissed for failure to prosecute, and such a dismissal has no preclusive effect. Although statutes of limitations are not tolled for class claims under case law providing for tolling of individual claims until the denial of class certification in a prior action, untimeliness was not apparent as to any of the class claims. Fierro v. Landry’s Restaurant Inc. (Cal. App. 4th Dist. Feb. 15, 2019),32 Cal. App. 5th 276.
Element 1: Ascertainable Class
Whether a class is ascertainable is determined by examining (1) the class definition, (2) the size of the class, and (3) the means available for identifying class members. Reyes v. Board of Supervisors, 196 Cal. App. 3d 1263.
Liability is exclusively a post-certification determination. The focus during certification is limited to whether or not there is a systematic, class wide practice, not whether there is liability following from such a practice. (Ghazaryan v. Diva Limousine, LTD. (2008) 169 Cal.App.4th 1524, 1531.) Class certification is “essentially a procedural [question] that does not ask whether an action is legally or factually meritorious.” (Linder, at 439.) Although a class member’s precise amount of damages may ultimately vary, individual variations are not a bar to certification. (Vasquez v. Super. Ct. (1971) 4 Cal. 3d 800, 815 (“Vasquez“).) “[T]he necessity for class members to individually establish eligibility and damages does not mean individual questions predominate.” (Reyes v. Bd. of Supervisors (1987) 196 Cal.App.3d 1263, 1278.)
My 2 cents: Don’t be greedy by casting a wide net with class definition. Keep each class definition clear and precise. If the class definition is too wide, a class cannot be ascertainable. If necessary, create sub-classes.
Certification of Class
The ultimate question in every case of this type is whether, given an ascertainable class, the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants. Trial courts are admonished to carefully weigh respective benefits and burdens and to allow maintenance of the class action only where substantial benefits accrue both to litigants and the courts. Bell v. Farmers Ins. Exchange, 115 Cal. App. 4th 715.
Class certification does not require that common questions be completely dispositive as to all potential members of the class. The fact that certain members of the class may not have been injured at all does not defeat class certification. Rosack v. Volvo of Am. Corp., 131 Cal. App. 3d 741.
Drafting Class Description
Drafting class descriptions is not an easy task. Amendments are permitted so that class cases may proceed on their merits. California has a public policy that encourages the use of the class action device. If necessary to preserve the case as a class action, the court itself can, and should, redefine the class where the evidence before it shows such a redefined class would be ascertainable. As it is the court’s duty to certify an identifiable and ascertainable class, the court is not limited to the class description contained in the plaintiff’s complaint. Marler v. E.M. Johansing, LLC, 199 Cal. App. 4th 1450.
Class Member Unidentifiable
If the existence of an ascertainable class has been shown, there is no need to identify its individual members in order to bind all members by the judgment. The fact that the class members are unidentifiable at a certain point in time will not preclude a complete determination of the issues affecting the class. Anthony v. General Motors Corp., 33 Cal. App. 3d 699.
Ascertaining and Defining Class
In determining whether there is an ascertainable class, a court looks to the class definition. It must be precise and objective. A class definition that is ambiguous presents a problem of class ascertainability that goes to the heart of the question of class certification. In the absence of an ascertainable class, it is not possible to give adequate notice to class members or to determine after the litigation has concluded who is barred from relitigating. The goal in defining the class is to use terminology that will convey sufficient meaning to enable persons hearing it to determine whether they are members of the class plaintiff wishes to represent. Whether there is an ascertainable class depends in turn upon the community of interest among the class members in the questions of law and fact involved. The court does not exclude an analysis of community of interest factors in testing ascertainability. The court may consider whether the class definition is overbroad and whether the plaintiffs have shown that class members who have claims can be identified from those who should not be included in the class. Marler v. E.M. Johansing, LLC, 199 Cal. App. 4th 1450
Individual Determination of Damages
The necessity for an individual determination of damages does not weigh against class certification. The community of interest requirement recognizes that ultimately each class member will be required in some manner to establish his individual damages. A class action is not inappropriate simply because each member of the class may at some point be required to make an individual showing as to his or her eligibility for recovery or as to the amount of his or her damages. In almost every class action, factual determinations of damages to individual class members must be made. Bell v. Farmers Ins. Exchange, 115 Cal. App. 4th 715.
It is firmly established that a class action is not inappropriate simply because each member of the class may at some point be required to make an individual showing as to his or her eligibility for recovery or as to the amount of his or her damages. Reyes v. Board of Supervisors, 196 Cal. App. 3d 1263.
Manageability of the class with regard to proof of the amount of each class member’s damages may present an independent ground for failure to certify the class. But this is not to be confused with the amenability of the causation or impact element to generalized as opposed to individualized proof. The complexity of the pricing scheme and the number of variables, although they may prove fatally unmanageable to damage calculation, will rarely inhibit generalized proof of impact. Where complexity is found to preclude class proof of impact, in fact, it is either because the complexity has also foreclosed generalized proof of the conspiracy itself, or because calculation of individual damages is deemed unmanageable. Rosack v. Volvo of Am. Corp., 131 Cal. App. 3d 741.
Mindful in determining whether a class is ascertainable we examine the class definition, the size of the class and the means of identifying class members ( Vasquez v. Superior Court, supra, 4 Cal.3d at pp. 821-822; Miller v. Woods, supra, 148 Cal.App.3d at p. 873), we conclude Plaintiffs’ proffered class of “all individuals sanctioned from the County’s general relief program since April 10, 1983,” is sufficiently defined to meet the “ascertainable” standard. Reyes v. Board of Supervisors, 196 Cal. App. 3d 1263
Abuse of Discretion
Because trial courts are ideally situated to evaluate the efficiencies and practicalities of permitting group action, they are afforded great discretion in granting or denying certification. In the absence of other error, an appellate court will not disturb a trial court ruling on class certification which is supported by substantial evidence unless (1) improper criteria were used; or (2) erroneous legal assumptions were made. Bell v. Farmers Ins. Exchange, 115 Cal. App. 4th 715.
Element 2: Numerosity
The numerosity analysis addresses how many individuals fall within the class definition and whether their joinder is impracticable. (Hendershot v. Ready to Roll Transp., Inc. (2014) 228 Cal.App.4th 1213, 1222.) While there is no minimum number of class members (Hebbard v. Colgrove (1972) 28 Cal.App.3d 1017, 1030)
The theory permitting an action to be brought by one or more persons on behalf of others when numerous is that of convenience and is known as the doctrine of virtual representation. Fallon v. Superior Court of San Francisco (Cal. App. May 24, 1939), 33 Cal. App. 2d 48.
Court Error to Deny Class Certification Based on Affirmative Defense
Denying class certification based on lack of numerosity was error because the trial court’s consideration of the merits of affirmative defenses based on releases and arbitration agreements did not overlap with the numerosity analysis; moreover, because the affirmative defenses were not pleaded in the answer but were asserted for the first time in opposition to class certification, due process required an adequate opportunity for discovery and briefing. Hendershot v. Ready to Roll Transportation, Inc. (Cal. App. 2d Dist. Aug. 14, 2014), 228 Cal. App. 4th 1213.
Note: Whether a plaintiff satisfies the numerosity prerequsite depends on the judge. It is generally accepted among class action practitioner that 25 or more class members satisfy numerosity requirement.
Four Persons Not Sufficient
Four persons are not so numerous as to make it impracticable to have them appear with two extra plaintiffs within contemplation of section. Kennedy v. Domerque (Cal. App. Dep’t Super. Ct. Nov. 9, 1955), 137 Cal. App. 2d Supp. 849.
Element 3: Typicality of Class
Representative plaintiffs need not have all claims or identical interests with the class or suffer all of the same damages as every class member, they need only have claims that are “typical of the class” which arise from the same practice or course of conduct for claims of other class members and be based on the same legal theories. (Classen v. Weller (1983) 145 Cal.App.3d 27, 46-47.)
Although the questions whether a plaintiff has claims typical of a class and will be able to adequately represent the class members are related, they are not synonymous. The typicality requirement’s purpose is to assure that the interest of the named representative aligns with the interests of the class. Typicality refers to the nature of the claim or defense of the class representative, and not to the specific facts from which it arose or the relief sought. The test of typicality is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct. A class representative who does not have a claim against the defendants cannot satisfy the typicality requirement. Martinez v. Joe’s Crab Shack Holdings, 231 Cal. App. 4th 362.
The typicality requirement for class actions is meant to ensure that the class representative is able to adequately represent the class and focus on common issues. It is only when a defense unique to the class representative will be a major focus of the litigation, or when the class representative’s interests are antagonistic to or in conflict with the objectives of those he or she purports to represent, that denial of class certification is appropriate. But even then, a court should determine if it would be feasible to divide the class into subclasses to eliminate the conflict and allow the class action to be maintained. Medrazo v. Honda of North Hollywood, 166 Cal. App. 4th 89.
The purpose of the typicality requirement for class certification is to assure that the interest of the named representative aligns with the interests of the class. Typicality refers to the nature of the claim or defense of the class representative, and not to the specific facts from which it arose or the relief sought. The test of typicality is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct. Kizer v. Tristar Risk Management, 13 Cal. App. 5th 830.
Practice Note: Opposition to class certification based on a typicality is difficult. A class representative’s claim most often is considered typical as long as the plaintiff is a member of the class to be represented (see Classen v. Weller (1983) 145 Cal.App.3d 27, 45-46 (claims of class representative need not be identical to absent class members; it is enough that common questions of law and fact predominate and that representative is similarly situated).
Element 4: Community of Interest – Common Issues of Fact or Law Dominates