Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour and Labor Code Class Actions (22nd Edition) 135 through state agency investigations and settlements with the defendant.”787 This was not the case in CashCall, where the putative class had no knowledge of the alleged unlawful conduct and the court noted that “absent precertification discovery and continuation of this class action, it appears unlikely any of the class members will have a realistic opportunity to assert claims, and potentially obtain relief.”788 Subsequently, Safeco Insurance Co. of America v. Superior Court789 was decided similarly to CashCall, with Safeco emphasizing that First American “does not stand for the proposition that a plaintiff who was never a class member in a UCL action necessarily is not entitled to conduct precertification discovery to identify a substitute class representative.”790 However, in Starbucks Corp. v. Superior Court,791 the Court of Appeal reversed the trial court’s order permitting plaintiffs to conduct discovery to locate a suitable class representative. There, the plaintiffs had brought a putative class action against Starbucks, alleging that the company’s preprinted job application improperly sought information relating to minor marijuana convictions that were over two years old.792 But because the named plaintiffs had never been convicted of any such crimes, they were dismissed as class representatives on summary judgment.793 Thereafter, class counsel amended their complaint and obtained an order permitting them to discover the names of job applicants who had disclosed minor marijuana convictions on their applications, in order to locate “suitable” class representatives.794 The appellate court overturned the order, holding that the trial court had abused its discretion in allowing this precertification discovery.795 Starbucks distinguished CashCall, noting that, in that case, “the only conceivable class members were debtors who were unaware of the secret monitoring,” and therefore unaware that they had potential claims.796 However, “in contrast, Starbucks’ job applicants who had marijuana convictions know about their own previous convictions and about the fact that they had applied for a job at Starbucks,” and therefore had a fair opportunity to file suit if they so desired.797 Thus, Starbucks held that the Parris balancing test required the requested precertification discovery to be denied because the potential abuse of the class action procedure in this instance outweighed the rights of the class members.798 787 Id. at 298. 788 Id. 789 173 Cal. App. 4th 814 (2009). 790 Id. at 829. 791 194 Cal. App. 4th 820 (2011). 792 Id. at 822. 793 Id. 794 Id. at 823. 795 Id. at 828. 796 Id. at 829. 797 Id. 798 Id. at 830 (also noting that “the excessive penalties sought by class counsel bear little relationship to any true public interest for what, at most, appears to be a technical violation of Labor Code 432.8 by Starbucks”).
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