132 Litigating CA Wage & Hour and Labor Code Class Actions (22nd Edition) Seyfarth Shaw LLP | www.seyfarth.com evident where the only named plaintiff has never been a member of the class,” and that the privacy interests of the class weighed against production.768 We expect that the law will continue to develop to address this situation, as we encounter it on a regular basis. B. Discovery to Facilitate Location of Substitute Class Representatives One method to defeat class certification is to argue that the class representative is atypical or inadequate. The problem with this argument is that, even when it succeeds, it leaves open the question of whether a class could properly be certified with a different member of the putative class acting as class representative. In 1971, in La Sala v. American Savings & Loan Association,769 the court held that the plaintiff should have been permitted to substitute a proper class representative for a class representative who was inadequate. A key aspect of the decision, however, was that the defendant had engaged in questionable conduct that rendered the plaintiffs inadequate. More specifically, the case addressed the alleged impropriety of a fee charged by the defendant. The defendant excused the plaintiffs from paying the fee as a basis to argue that the plaintiffs suffered no harm and, thus, lacked standing to represent a class of injured customers. The court left open the question of whether the plaintiffs’ lack of any injury rendered them inadequate to represent the putative class as a matter of law, but it held that a defendant should not be able to defeat a class action by simply paying off class representatives one-by-one as they come forward: In the present case, American has waived its acceleration clause only as to [the plaintiffs]. If other borrowers bring a class action, American may again waive as to those representative borrowers, and again move to dismiss the action. Such a procedure could be followed ad infinitum for each successive group of representative plaintiffs. If defendant is permitted to succeed with such revolving door tactics, only members of the class who can afford to initiate or join litigation will obtain redress; relief for even a portion of the class would compel innumerable appearances by individual plaintiffs.770 La Sala has been interpreted to permit a plaintiff to amend the complaint to add a new class representative when the original plaintiff, although a bona fide member of the putative class, has particular traits that make him an inadequate class representative.771 Thus, under La Sala, a plaintiff who is deemed inadequate generally can find and substitute in another class representative.772 La Sala left open the important question of whether the plaintiff may use the discovery process as a mechanism to obtain contact information for other putative class members for 768 Id. at 513. 769 5 Cal. 3d 864 (1971). 770 Id. at 873. 771 See Howard Gunty Profit Sharing Plan v. Superior Court, 88 Cal. App. 4th 572, 580-81 (2001) (leave to substitute class representative may be inappropriate where trial court determines that the class representative was a “professional plaintiff” with a history of abusing the class action procedure). 772 See, e.g., Aguiar v. Cintas Corp. No. 2, 144 Cal. App. 4th 121, 137 (2006) (“the second amended complaint may be amended once again on remand to add another named plaintiff should it be determined that ... [plaintiff] needs an additional, adequate representative”); Shappell Indus., Inc. v. Superior Court, 132 Cal. App. 4th 1101, 1109 (2005) (“[La Sala] demonstrate[s] that California courts recognize and preserve the rights of absent class members, even before the issue of certification has been determined.”).
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