Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) 155 In 1999, he refiled with another class representative alleging the same class claims. The trial court considered class certification anew, but ultimately also decided to deny class certification. That denial was affirmed on appeal in 2003. Undeterred, the plaintiffs’ counsel filed another action in Los Angeles County asserting the same claims on behalf of essentially the same putative class. This time the defendant demurred to the complaint on the ground that the class allegations were barred by principles of collateral estoppel. The trial court agreed and sustained the demurrer. The Court of Appeal in Alvarez affirmed the order sustaining the demurrer. However, the court did not go so far as to state a per se rule that a denial of class certification always bars another class member from coming forward and seeking class certification of the same claims. The court did hold, however, that if, after class certification is denied, the same attorney brings essentially the same claims on behalf of essentially the same putative class, principles of collateral estoppel would preclude certification of the second action.773 Although Alvarez did not address how it would have ruled if a different attorney had represented the new class representative seeking to sue on behalf of the same class, it implied that collateral estoppel would apply unless the new attorney came forth with evidence that the first attorney’s efforts had been incompetent or otherwise inadequate to fairly protect the putative class’s interests: It is manifestly unfair to subject respondent to a revolving door of endless litigation. In cases, such as this one, where a party had a full opportunity to present his or her claim and adequately represented the interests of a second party who seeks the same relief, principles of equity, “[p]ublic policy and the interest of litigants alike require that there be an end to litigation.”774 The plaintiffs’ bar has been unwilling to accept the likelihood that one lawyer losing class certification means that no other lawyer can try to get a class certified against that employer. Plaintiffs’ counsel were aided in this regard when, in Bufil v. Dollar Financial Group,775 the Court of Appeal held that collateral estoppel did not preclude certification of meal and rest period claims for a sub-class of a broader proposed class for which certification had previously been denied. Previously, in Nguyen v. Dollar Financial Group,776 the Court of Appeal had upheld denial of class certification of meal and rest break claims for clerks working alone in the defendant’s check-cashing stores. In the middle of the class period, the defendant adopted a policy of requesting that the clerks execute an on-duty meal period agreement, which the plaintiffs contended they were forced to sign. The court held that the question of whether each individual clerk was pressured to sign the meal period agreement was an individualized inquiry not suitable for class treatment. Furthermore, the court found that, prior to the institution of the meal period agreement, defendant did not have a uniform meal period policy, therefore requiring individualized inquiry as to whether each class member was denied meal breaks during this time. 773 Id. at 1238-40. 774 Id. at 1240. 775 162 Cal. App. 4th 1193 (2008), disapproved of by Noel v. Thrifty Payless, Inc., 7 Cal. 5th 955 (2019). 776 2006 WL 1351491 (Cal. Ct. App. May 18, 2006) (unpublished).
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