Litigating California Wage & Hour and Labor Code Class Actions

persuades a court to deny class certification, it is therefore established that employees in
the putative class must come forward and litigate their claims individually (or through a
joinder action). But, what if another attorney finds another class representative, and
asserts the same class action claims in a different lawsuit? Given the broad discretion that
trial courts have to decide certification, class action plaintiffs’ lawyers have an incentive to
try their luck again in a different jurisdiction.
In Alvarez v. May Department Stores, 408 the court of appeal limited an attorney’s ability to
continually relitigate class certification of the same proposed class. 409 The plaintiffs’
counsel first filed an action in Los Angeles in 1997. In 1998, counsel moved for class
certification for a putative class of store managers and the motion was denied. In 1999, he
refiled with another class representative alleging the same class claims. The trial court
considered class certification anew, but ultimately also decided to deny class certification.
That denial was affirmed on appeal in 2003. Undeterred, the plaintiffs’ counsel filed
another action in Los Angeles County asserting the same claims on behalf of essentially
the same putative class. This time the defendant demurred to the complaint on the ground
that the class allegations were barred by principles of collateral estoppel. The trial court
agreed and sustained the demurrer.
The court of appeal affirmed the sustaining of the demurrer. The court did not go so far as
to state a per se rule that a class certification denial always bars another class member
from coming forward and seeking class certification of the same claims. The court did,
however, hold that if, after class certification is denied, the same attorney brings essentially
the same claims on behalf of essentially the same putative class, principles of collateral
estoppel would preclude certification of the second action. 410 Although the court did not
address how it would have ruled if a different attorney had represented the new class
representative seeking to sue on behalf of the same class, it implied that collateral estoppel
would apply unless the new attorney came forth with evidence that the first attorney’s
efforts had been incompetent or otherwise inadequate to fairly protect the putative class’s
interests:
It is manifestly unfair to subject respondent to a revolving door of endless
litigation. In cases, such as this one, where a party had a full opportunity to
present his or her claim and adequately represented the interests of a second
408
409
410
143 Cal. App. 4th 1223 (2006).
A similar conclusion was drawn by the Seventh Circuit Court of Appeals in Bridgestone/Firestone, Inc., Tires Products,
333 F.3d 763 (7th Cir. 2003).
Id. at 1238-40.
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