162 Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) Seyfarth Shaw LLP | www.seyfarth.com for believing that individual claims are common to a broader class, or where there is evidence that the lawyer is controlling the litigation for an ulterior purpose. For example, application of the Parris factors resulted in a reversal of a trial court’s order requiring production of putative class member names and contact information where the named plaintiff was never a member of the proposed class. In CVS Pharmacy, Inc. v. Superior Court,812 the named plaintiff sued for injunctive relief against the employer’s policy of automatically terminating employees who did not work any hours for 45 consecutive days, on the theory that this policy discriminated against disabled employees. Although the named plaintiff had no disability and had not been terminated under the policy, she sought production of a putative class list. The appellate court reversed the trial court order requiring production, holding that “potential for abuse of the class action procedure is selfevident where the only named plaintiff has never been a member of the class,” and that the privacy interests of the class weighed against production.813 We expect that the law will continue to develop to address this situation, as we encounter it on a regular basis. B. Discovery to Facilitate Location of Substitute Class Representatives One method to defeat class certification is to argue that the class representative is atypical or inadequate. The problem with this argument is that, even when it succeeds, it leaves open the question of whether a class could properly be certified with a different member of the putative class acting as class representative. In 1971, in La Sala v. American Savings & Loan Association,814 the court held that the plaintiff should have been permitted to substitute a proper class representative for a class representative who was inadequate. A key aspect of the decision, however, was that the defendant had engaged in questionable conduct that rendered the plaintiffs inadequate. More specifically, the case addressed the alleged impropriety of a fee charged by the defendant. The defendant excused the plaintiffs from paying the fee as a basis to argue that the plaintiffs suffered no harm and, thus, lacked standing to represent a class of injured customers. The court left open the question of whether the plaintiffs’ lack of any injury rendered them inadequate to represent the putative class as a matter of law, but it held that a defendant should not be able to defeat a class action by simply paying off class representatives one-by-one as they come forward: In the present case, American has waived its acceleration clause only as to [the plaintiffs]. If other borrowers bring a class action, American may again waive as to those representative borrowers, and again move to dismiss the action. Such a procedure could be followed ad infinitum for each successive group of representative plaintiffs. If defendant is permitted to succeed with such revolving door tactics, only members of the class who can afford to initiate or join litigation will obtain redress; relief for even a portion of the class would compel innumerable appearances by individual plaintiffs.815 La Sala has been interpreted to permit a plaintiff to amend the complaint to add a new class representative when the original plaintiff, although a bona fide member of the putative class, has particular traits that make him an 812 241 Cal. App. 4th 300 (2015). 813 Id. at 513. 814 5 Cal. 3d 864 (1971). 815 Id. at 873.
RkJQdWJsaXNoZXIy OTkwMTQ4