118 Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) Seyfarth Shaw LLP | www.seyfarth.com In most of these cases, however, a significant portion of the certified class did not lose any money or property as a result of the violation, but plaintiffs argue that the mere fact that some class members have no damages does not preclude certification. For example, significant numbers of employees may not have worked any overtime, or significant numbers of a meal period class may have actually been provided all of their meal periods. After Tobacco II, trial courts may still certify classes despite the existence of members of the class without any grounds for recovery.590 While this is largely the way the courts had handled class actions traditionally, if the California Supreme Court had adopted the position of the dissent in Tobacco II, it might have substantially undercut the ability to use the UCL as a vehicle for advancing Labor Code class actions.591 592 D. Federal Courts Lack Jurisdiction Over UCL Claims For Restitution When There Is An Adequate Remedy At Law Recently, California federal courts have dismissed UCL claims that seek restitution only, i.e., no injunctive relief, under the equitable jurisdiction doctrine. Under the equitable jurisdiction doctrine, federal courts lack jurisdiction over claims for equitable relief when there is an adequate remedy at law. The Ninth Circuit has applied this doctrine to dismiss UCL claims in two recent cases. In Sonner v. Premier Nutrition Corp.,593 the plaintiff in a consumer class action chose to proceed with only equitable claims for restitution under the UCL after she dismissed state law claims for damages. Yet, the district court dismissed the UCL claim on grounds that the plaintiff “failed to establish that she lacked an adequate legal remedy for the same past harm for which she sought equitable restitution.” Affirming the dismissal, the Ninth Circuit held that as a matter of equitable jurisdiction, a plaintiff “must establish that she lacks an adequate remedy at law before securing equitable restitution for past harm under the UCL.” The plaintiff, however, “fail[ed] to make such a showing.” The operative complaint did not allege the plaintiff lacks an adequate remedy and she even conceded that “she seeks the same sum in equitable restitution … as she requested in damages to compensate her for the same past harm.” 590 See Sav-On Drug Stores, Inc. v. Superior Court, 34 Cal. 4th 319, 333 (2004) (explaining that “a class action is not inappropriate simply because each member of the class may at some point be required to make an individual showing as to his or her eligibility for recovery or as to the amount of his or her damages”). 591 Nevertheless, the reforms instituted by Proposition 64 still do apply where the class representatives themselves lack any basis for recovery. See, e.g., Birdsong v. Apple, 590 F.3d 955, 959-62 (9th Cir. 2009) (dismissing putative class action where plaintiffs alleged that injury was possible, but failed to allege that they themselves suffered any actual harm). 592 Another key development in regard to the application of the UCL was the decision of the California Supreme Court in Sullivan v. Oracle Corp., 51 Cal. 4th 1191 (2011). Sullivan held that overtime work performed by out-of-state employees within California can serve as the basis for a claim under California’s FLSA claims by competition law. Cal. Bus. & Prof. Code § 17200 (“UCL”). But the Supreme Court also held that out-of-state employees working outside California cannot serve as the basis for a California UCL claim. 593 971 F.3d 834 (9th Cir. 2020).
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