158 Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) Seyfarth Shaw LLP | www.seyfarth.com shall determine by order whether it is to be so maintained.” This determination may be made on motion of either plaintiff or defendant—or on the court’s own motion.787 Because the City of San Jose case is from the 1970s, plaintiffs’ counsel often argue that its statement did not survive the later enactment of the complex rules within the California Rules of Court, which set a special briefing schedule for motions to “certify a class; determine the existence of and certify subclasses; amend or modify an order certifying a class; or decertify a class.”788 Plaintiffs argue that the absence from this list of “motion to deny certification” was a deliberate decision to preclude such a motion. The employer’s cause to allow such motions was aided by the Ninth Circuit’s decision in Vinole v. Countrywide Home Loans.789 There, the Ninth Circuit upheld the grant of a motion to deny class certification and rejected the plaintiffs’ argument that such motions were inappropriate, especially when they were not decided simultaneously with a plaintiffs’ motion for class certification.790 The Ninth Circuit noted that Rule 23 of the Federal Rules of Civil Procedure places no limitations on which party may move for a determination whether a case should proceed as a class action. The Ninth Circuit also noted that it is at the discretion of the trial court to decide when to rule on a certification or decertification motion and that there is no rule that the court must wait for the discovery period to end.791 Following the issuance of the federal district court decision in Vinole, the Second District Court of Appeal held that the same rules apply under California civil procedure. In In re BCBG Overtime Cases,792 the Court of Appeal held that “under both California and federal law, either party may initiate the class certification process.” Relying on Carabini v. Superior Court,793 the Court of Appeal held that plaintiffs could file a motion for class certification, or defendants could move for a determination that the case should not proceed as a class action. As in Vinole, a key element in the court’s analysis was whether the plaintiffs had sufficient opportunity to conduct relevant discovery. The Court of Appeal determined that the plaintiffs before it had plenty of time (more than two years) to conduct discovery relevant to class certification issues, and therefore the trial court acted within its discretion when it granted the defendant’s motion to deny class certification rather than wait for the plaintiffs to file a motion for certification.794 787 City of San Jose, 12 Cal. 3d at 453-54. 788 California Rules of Court, Rule 3.764. 789 571 F.3d 935 (9th Cir. 2009). 790 Most cases approving defense motions to deny certification involve the filing of cross-motions by the defendant and the plaintiff. See, e.g., Maddock v. KB Homes, Inc., 248 F.R.D. 229 (C.D. Cal. 2007) (motion for class certification and motion to deny certification filed simultaneously; court granted defendant’s motion and denied plaintiffs’ motion). 791 571 F.3d at 943. 792 163 Cal. App. 4th 1293, 1299 (2008). 793 26 Cal. App. 4th 239, 242 (1994). 794 In re BCBG Overtime Cases, 163 Cal. App. 4th at 262-63.
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