Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) 133 XVI. Class Certification A. General Requirements In order to certify a class action, plaintiffs must show “the existence of an ascertainable class and a well-defined community of interest among the class members.” The community of interest requirement embodies three factors: (1) predominant common questions of law or fact, (2) class representatives with claims or defenses typical of the class, and (3) class representatives who can adequately represent the class.”684 There must also be enough class members to make the effort worthwhile. These elements are referred to as ascertainability, commonality or predominance, typicality, adequacy, and numerosity. Class certification is most often defeated on commonality or predominance grounds, and less often on the grounds of typicality, adequacy, ascertainability, and numerosity. In regard to the ascertainability requirement, the California Supreme Court has held that a plaintiff moving for class certification need not show how to identify absent class members for purposes of providing class notice.685 The Supreme Court concluded that the objectives of the ascertainability requirement “are best achieved by regarding a class as ascertainable when it is defined in terms of objective characteristics and common transactional facts that make the ultimate identification of class members possible when that identification becomes necessary.”686 The Supreme Court found that a less stringent approach to ascertainability that focuses on an objectively defined class “protects the due process interest of all parties and absent class members without unduly impairing the efficacy of the class action mechanism.”687 In the past, some defendants resisted class certification by arguing that plaintiffs would not be able to establish liability on the merits. In 2000, the California Supreme Court formally rejected this approach, holding that a trial court could not consider the factual or legal merits in deciding class certification, except to the (limited) extent that the merits affected the ascertainability of the class.688 684 Richmond v. Dart Indus., Inc., 29 Cal. 3d 462, 470 (1981). Note, however, that a federal district court decision held that a class representative may still be considered “adequate” and “typical” despite having settled his or her individual claims. See Amey v. Cinemark USA Inc., 2018 WL 3956326, at *4 (N.D. Cal. Aug. 17, 2018) (granting class certification and finding plaintiff to be adequate and typical, despite settlement of individual claims, because the “settlement agreement states that she ‘will retain her personal stake and continued financial interest in the advancement of the class claims’”). 685 Noel v. Thrifty Payless, Inc., 7 Cal. 5th 955, 980 (2019). 686 Id. (internal quotations omitted). 687 Id. 688 Linder v. Thrifty Oil, 23 Cal. 4th 429 (2000). The procedure disallowed in Linder should be distinguished from a precertification motion for summary judgment as to the individual’s claims. Such a motion, if granted as to all named plaintiffs, effectively would defeat class certification because it would remove all adequate representatives. Allen v. Pacific Bell, 348 F.3d 1113, 1115 (9th Cir. 2003). Such a pre-certification summary judgment would not bind the class, however.
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