Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) 163 inadequate class representative.816 Thus, under La Sala, a plaintiff who is deemed inadequate generally can find and substitute in another class representative.817 La Sala left open the important question of whether the plaintiff may use the discovery process as a mechanism to obtain contact information for other putative class members for the express purpose of asking them if they would be willing to be a substitute class representative. That question was answered “yes” in Best Buy Stores, L.P. v. Superior Court.818 In Best Buy, a class action attorney was subjected to an allegedly illegal “restocking fee” when he returned an item to Best Buy. Invoking the Consumer Legal Remedies Act and the UCL, he sought to represent a class of similarly situated consumers who were charged the fee. The trial court ruled that he could not simultaneously be class counsel and class representative.819 The plaintiff requested that the court order Best Buy to disclose to a third party administrator the names and addresses of all putative class members, so that the administrator could advise them of the case and invite them to express interest in serving as class representative in the lawyer’s stead. When the trial court granted the request, Best Buy sought a writ of mandate to reverse the decision. Although the writ petition was granted, the appellate court ultimately affirmed the crux of the trial judge’s order.820 The court held that it was indeed appropriate to use the discovery process to locate a substitute class representative when the original class representative was found inadequate.821 It also held that facilitating “recruiting” of a class representative in this manner was not improper “solicitation” under the Rules of Professional Conduct, because “solicitation” was limited to in-person or telephonic contact, not a mailing.822 The result in Best Buy was understandable in that the class representative appeared to be a proper class representative but for the fact that he also wanted to serve as class counsel. After all, he did go to Best Buy and 816 See Howard Gunty Profit Sharing Plan v. Superior Court, 88 Cal. App. 4th 572, 580-81 (2001) (leave to substitute class representative may be inappropriate where trial court determines that the class representative was a “professional plaintiff” with a history of abusing the class action procedure). 817 See, e.g., Aguiar v. Cintas Corp. No. 2, 144 Cal. App. 4th 121, 137 (2006) (“the second amended complaint may be amended once again on remand to add another named plaintiff should it be determined that ... [plaintiff] needs an additional, adequate representative”); Shappell Indus., Inc. v. Superior Court, 132 Cal. App. 4th 1101, 1109 (2005) (“[La Sala] demonstrate[s] that California courts recognize and preserve the rights of absent class members, even before the issue of certification has been determined.”). 818 137 Cal. App. 4th 772 (2006). But see In Re Williams-Sonoma, 947 F. 3d 535 (9th Cir. 2020) (holding that Rule 26 does not permit discovery to locate a new class representative prior to class certification). 819 See Apple Computer, Inc. v. Superior Court, 126 Cal. App. 4th 1253 (2005) (attorney in class action may not also act as class representative). 820 See Best Buy, 137 Cal. App. 4th at 778 (court should not have included contact information in letter for plaintiff, but rather should simplyhave disclosed to plaintiff contact information of all individuals who returned postcards stating they were interested in serving as class representative). 821 Id. at 779; see also Rand v. American Nat’l Ins. Co., 2010 WL 2758720 (N.D. Cal. July 13, 2010) (permitting use of class information to solicit new class representative after previous class representative died). The Best Buy court cited Budget Fin. Plan v. Superior Court, 34 Cal. App. 3d 794, 799 (1973), to reason that a proper purpose of discovery is to look for a substitute class representative when the original class representative is inadequate, and the Budget case does state as much. But the Budget case cited no authority for that proposition other than the conclusory statement that the right to such discovery impliedly flows from the right of a plaintiff to substitute in a new class representative. See First Am. Title Ins. Co. v. Superior Court, 146 Cal. App. 4th 1564, 1577-78 (2007) (noting lack of analysis in Budget’s conclusion concerning right to discovery, and questioning its continuing validity as precedent). 822 Best Buy, 137 Cal. App. 4th at 776-77.
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