128 Litigating CA Wage & Hour and Labor Code Class Actions (22nd Edition) Seyfarth Shaw LLP | www.seyfarth.com order certifying a class; or decertify a class.”743 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 the Ninth Circuit’s decision in Vinole v. Countrywide Home Loans.744 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.745 The Ninth Circuit noted 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 Ninth Circuit 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.746 Following the issuance of the federal 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,747 the Court of Appeal held that “under both California and federal law, either party may initiate the class certification process.” Relying on Carabini v. Superior Court,748 the Court of Appeal 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 of Appeal determined that the plaintiffs before it had plenty of time (more than two years) to conduct discovery relevant to class certification issues, and therefore the trial court acted within its discretion when it granted the defendant’s motion to deny class certification rather than wait for the plaintiffs to file a motion for certification.749 XVI. Discovery Issues in Class Actions A. Disclosure of Class Member Names and Addresses to Allow Access to Potential Witnesses An ongoing dispute in Labor Code class actions revolves around the disclosure of the names, addresses, and telephone numbers for potential class members prior to class certification. Plaintiffs typically argue they need this information to assist them in prosecuting their case, and to alleviate any inherent advantage the defendant has in contacting potential class members. 743 California Rules of Court, Rule 3.764. 744 571 F.3d 935 (9th Cir. 2009). 745 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). 746 571 F.3d at 943. 747 163 Cal. App. 4th 1293, 1299 (2008). 748 26 Cal. App. 4th 239, 242 (1994). 749 In re BCBG Overtime Cases, 163 Cal. App. 4th at 262-63.
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