Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (24th Edition) 169 Five new class representatives were then substituted in, but it again turned out that none of these individuals had had their calls monitored.851 The trial court then ordered CashCall to disclose the identities of the 551 individuals for whom collection calls had been monitored so that proper class representatives could be substituted in.852 The Court of Appeal determined that the trial court had not abused its discretion in permitting discovery of the class list for the purpose of locating proper class representatives.853 The court distinguished First American, noting that, in that case, “the class members’ rights against the defendant had already been protected and enforced through state agency investigations and settlements with the defendant.”854 This was not the case in CashCall, where the putative class had no knowledge of the alleged unlawful conduct and the court noted that “absent precertification discovery and continuation of this class action, it appears unlikely any of the class members will have a realistic opportunity to assert claims, and potentially obtain relief.”855 Subsequently, Safeco Insurance Co. of America v. Superior Court856 was decided similarly to CashCall, with Safeco emphasizing that First American “does not stand for the proposition that a plaintiff who was never a class member in a UCL action necessarily is not entitled to conduct precertification discovery to identify a substitute class representative.”857 However, in Starbucks Corp. v. Superior Court,858 the Court of Appeal reversed the trial court’s order permitting plaintiffs to conduct discovery to locate a suitable class representative. There, the plaintiffs had brought a putative class action against Starbucks, alleging that the company’s preprinted job application improperly sought information relating to minor marijuana convictions that were over two years old.859 But because the named plaintiffs had never been convicted of any such crimes, they were dismissed as class representatives on summary judgment.860 Thereafter, class counsel amended their complaint and obtained an order permitting them to discover the names of job applicants who had disclosed minor marijuana convictions on their applications, in order to locate “suitable” class representatives.861 The appellate court overturned the order, holding that the trial court had abused its discretion in allowing this precertification discovery.862 Starbucks distinguished CashCall, noting that, in that case, 851 Id. at 280. 852 Id. at 283. 853 Id. at 292. 854 Id. at 298. 855 Id. 856 173 Cal. App. 4th 814 (2009). 857 Id. at 829. 858 194 Cal. App. 4th 820 (2011). 859 Id. at 822. 860 Id. 861 Id. at 823. 862 Id. at 828.
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