134 Litigating CA Wage & Hour and Labor Code Class Actions (22nd Edition) Seyfarth Shaw LLP | www.seyfarth.com That question was answered “no” in First American Title Insurance Company v. Superior Court.778 The plaintiff, who was not a member of the class he purported to represent, and who had no other interest in the litigation, obtained an order for precertification discovery so that he could locate a class representative. In holding that the order was an abuse of discretion, the appellate court concluded that “the potential abuse of the class action [precertification discovery] procedure greatly outweighs the rights of the parties under the circumstances.”779 The appellate court noted that it would counter the public policy enshrined in Prop 64 to allow people without any injury in fact to sue and then use the discovery process to troll for class representatives.780 The appellate court also noted that putative class members, if they really felt aggrieved, were free to come forward and bring their own case: Any further legal action can be pursued by members of the class, if they so desire. [Plaintiff] makes no argument that any future action they might pursue would be time-barred, or offers any other reason why the class members might be denied relief if this action is unable to proceed on their behalf. In short, the potential for abuse of the class action procedure is overwhelming, while the interests of the real parties in interest are minimal. Precertification discovery under these circumstances would be an abuse of discretion.781 But then, in CashCall, Inc. v. Superior Court,782 precertification discovery was permitted in order to locate proper class representatives, even though the original representatives, as well as the first set of replacements, were all found to not be members of the putative class. CashCall involved a suit against a lender who allegedly had illegally monitored certain of its collection calls in violation of the California Penal Code.783 The defendant notified the plaintiffs that none of the three named class representatives had been subject to monitoring. Five new class representatives were then substituted in, but it again turned out that none of these individuals had had their calls monitored.784 The trial court then ordered CashCall to disclose the identities of the 551 individuals for whom collection calls had been monitored so that proper class representatives could be substituted in.785 The Court of Appeal determined that the trial court had not abused its discretion in permitting discovery of the class list for the purpose of locating proper class representatives.786 The court distinguished First American, noting that, in that case, “the class members’ rights against the defendant had already been protected and enforced 778 146 Cal. App. 4th 1564 (2007). See also Cryoport Sys. v. CAN Ins. Cos., 149 Cal. App. 4th 627 (2007) (“Best Buy Stores does not stand for the proposition that a plaintiff with no interest in the action has a right to discovery to find a substitute plaintiff to keep the action alive.”). 779 Id. at 1577. 780 Id. 781 Id. 782 159 Cal. App. 4th 273 (2008). 783 Id. at 278. 784 Id. at 280. 785 Id. at 283. 786 Id. at 292.
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