Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) 157 If the reasoning in Bridgeford were widely adopted, serial class claims could result. Even if an employer is successful in defeating class certification, courts could allow attorneys to forum-shop by recruiting new plaintiffs to file a case with similar allegations and seek class certification again and again from different judges.784 J. Defense Motions to Deny Class Certification (“Vinole Motions”) It is often to theemployer’s tactical advantage to file the motion that triggers the resolution of the question of whether a class should be certified. By filing first, the employer can time the briefing to its advantage. If the employer can quickly assemble the evidence it needs to defeat class certification, then filing such a motion may put pressure on the plaintiffs’ lawyers (who often take on many cases) to oppose such a motion with less preparation than they would have if they could delay discovery for months and months until they felt prepared to file a motion for certification. Furthermore, filing first gives the employer the opportunity to file a reply brief, which it usually may not file if the plaintiff moves for class certification first. The plaintiffs’ bar does not agree that employers should be permitted to move to deny class certification before the plaintiffs file their own certification motion. Plaintiffs’ lawyers have contended that such a motion robs the plaintiff of the right to define the class it wants certified and establish that such a class is possible. The plaintiffs also contend that such motions are not allowed under California procedure (or under federal procedure if the case has been removed to federal court).785 A problem the plaintiffs face with this argument is that the California Supreme Court rejected it more than forty years ago in City of San Jose v. Superior Court.786 There, the Supreme Court stated in no uncertain terms that either party can bring a motion concerning class certification and that such determinations should take place as soon in the litigation as practicable: [W]e have directed [lower courts] to rule 23 of the Federal Rules of Civil Procedure, which provides: “As soon as practicable after the commencement of an action brought as a class action, the court 784 Plaintiffs cannot, however, take advantage of tolling of the statute of limitations to bring successive Rule 23 class actions alleging the same claims. While American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), does toll the limitations period for individuals to bring their own claims after class certification is denied, the Supreme Court has held that plaintiffs in successive class actions are not entitled to such tolling. China Agritech, Inc. v. Resh, 138 S. Ct. 1800, 1811 (2018) (“Extending American Pipe tolling to successive class actions does not serve that purpose. The contrary rule, allowing no tolling for out-of-time class actions, will propel putative class representatives to file suit well within the limitation period and seek certification promptly. For all the above-stated reasons, it is the rule we adopt today: Time to file a class action falls outside the bounds of American Pipe”); see also Fierro v. Landry's Rest. Inc., 32 Cal. App. 5th 276, 291 (2019) (“American Pipe tolling does not apply to any later class claims that may be asserted by the purported class member who files a new action; if the purported class member files a new class action after the expiration of the applicable statute of limitations on the class's claim, then the claim is barred”). 785 However, California Rules of Court, Rule 3.764(a) appears to contemplate such motions: “A party may file a motion to: ... Decertify a class.” 786 12 Cal. 3d 447 (1974); accord Chevron USA, Inc. v. Vermilion Parish Sch. Bd., 364 F.3d 607 (5th Cir. 2004) (upholding trial court’s grant of defendants’ motion to deny class certification); Campanelli v. Image First Healthcare Laundry Specialists, Inc., 2018 WL 6727825, at *7 (N.D. Cal. Dec. 21, 2018) (granting “motion to deny Rule 23” class); Ritenour v. Carrington Mortg. Servs., LLC, 2018 WL 5858658, at *1 (C.D. Cal. Sept. 12, 2018) (granting motion to deny class certification); Tan v. Grubhub, Inc., 2016 WL 4721439, at *1 (N.D. Cal. July 19, 2016) (granting motion to deny class certification); Sipper v. Capital One Bank, 2002 WL 398769 (C.D. Cal. Feb. 28, 2002) (granting “motion to deny class certification”); Lightfoot v. Gallo Sales Co., 15 Fair Empl. Prac. Cas. (BNA) 615, 616 (N.D. Cal. 1977) (denying class certification under Rule 23(c)(1)).
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