126 Litigating CA Wage & Hour and Labor Code Class Actions (22nd Edition) Seyfarth Shaw LLP | www.seyfarth.com The Court of Appeal in Bufil held that this previous denial of certification did not act as res judicata to bar to certification of the class proposed by Bufil, because both the proposed class and the rationale for certification were different. The class in Bufil was a smaller subset of the class alleged in Nguyen, including only clerks who worked for the defendant after the institution of the meal period agreement. Furthermore, Bufil did not allege that the clerks had been forced to sign the meal period agreements, which was one of the individualized inquiries that had doomed plaintiffs’ claims in Nguyen. Rather, Bufil contended that the employees did not work in a situation where an on-duty meal period would be permissible even with the consent of the employees, which was a legal question that could be decided on a classwide basis.732 While Bufil could be harmonized with Alvarez as addressing a case where the plaintiff truly is seeking certification of a different class using a different theory of collective proof, a split in authority developed when a Court of Appeal panel decided Bridgeford v. Pacific Health Corporation.733 Bridgeford, relying on the U.S. Supreme Court’s ruling in Smith v. Bayer Corp.,734 held that collateral estoppel did not apply; therefore a denial of class certification in one case would still leave unnamed putative class members free to file a second suit alleging identical claims.735 In Bridgeford, a wage and hour class action, the trial court had granted defendants’ demurrer on the grounds that the named plaintiffs had been members of the putative class in an earlier action wherein class certification had been denied on the same claims, and so collateral estoppel precluded them from seeking class certification in the second action.736 The Court of Appeal reversed, stating that even if the minimum requirements for applying collateral estoppel had been met, if a party had not had a full and fair opportunity to litigate the issue in the prior proceeding, then collateral estoppel should not apply.737 The Court of Appeal concluded: [U]nder California law ... the denial of class certification cannot establish collateral estopped against unnamed putative class members on any issue because unnamed putative class members were neither parties to the prior proceeding nor represented by a party to the prior proceeding so as to be considered in privity with such a party for purposes of collateral estoppel.738 If the reasoning in Bridgeford were widely adopted, serial class claims could result. Even if an employer is successful in defeating class certification, courts could allow attorneys to forum-shop by recruiting new plaintiffs to file a case with similar allegations and seek class certification again and again from different judges.739 732 See also Johnson v. GlaxoSmithKline, Inc., 166 Cal. App. 4th 1497, 1513-15 (2008) (reversing trial court’s application of Alvarez collateral estoppel where enactment of Proposition 64 after first court denied certification ran counter to the rationale the first court had given for denying class certification; also considering (without deciding) whether Alvarez was overruled sub silentio by the United States Supreme Court’s discussion of virtual representation in Taylor v. Sturgell, 553 U.S. 880 (2008)). 733 202 Cal. App. 4th 1034, 1043 (2012). 734 131 S. Ct. 2368 (2011). 735 202 Cal. App. 4th at 1044. 736 Id. at 1039-40. 737 Id. at 1042. 738 Id. at 1044. 739 Plaintiffs cannot, however, take advantage of tolling of the statute of limitations to bring successive Rule 23 class actions alleging the same claims. While American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), does toll the limitations
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