Litigating California Wage & Hour and Labor Code Class Actions

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. 457
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. 458 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.” 459 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.” 460
More recently, Safeco v. Superior Court 461 was decided similarly to CashCall, with the
appellate court 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.” 462
However, in Starbucks Corp. v. Superior Court, the California Court of Appeal reversed the
trial court’s order permitting plaintiffs to conduct discovery to locate a suitable class
representative. 463 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. 464 But
because the named plaintiffs had never been convicted of any such crimes, they were
dismissed as class representatives on summary judgment. 465 Thereafter, class counsel
amended their complaint and obtained an order from the Superior Court 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. 466 The Court of Appeal
overturned the order, holding that the trial court had abused its discretion in allowing this
457
458
459
460
461
462
463
464
465
466
Id. at 283.
Id. at 292.
Id. at 298.
Id.
173 Cal. App. 4th 814 (2009).
Id. at 829.
Starbucks Corp. v. Superior Court, 194 Cal. App. 4th 820 (2011).
Id. at 721.
Id.
Id.
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