In addition to my own preliminary thoughts on Fireside Bank (the one-way intervention case), more blogosphere commentary can be found at Wage Law by Michael Walsh (who has two separate posts on the case), Cal Biz Lit (Bruce Nye), and Legal Pad (Mike McKee).
The opinion is open to varying interpretations, some of which are reflected in these blog posts. To be completely candid, I don't think the Supreme Court realized all of the potential implications of some of the language it used in the opinion. In retrospect, this may have been due to a lack of amicus participation. I think it may turn out to be very difficult, for example, to determine exactly what types of pre-class-certification motions implicate the "one way intervention" problem. For example, what if the plaintiff files a putative class action then immediately seeks a TRO followed by a motion for a preliminary injunction? To issue a preliminary injunction, the trial court has to find a likelihood of success on the merits. This is sufficiently related to the merits of the action that no one may peremptorily challenge the judge later under Code of Civil Procedure section 170.6. After Fireside Bank, can the defendant prevent a plaintiff from obtaining a preliminary injunction on pain of losing the right to seek class certification later?
Thoughts are welcome. And, readers, please keep me apprised of trial-level cases in which the judges are asked to address Fireside Bank. We may just have to wait and see how these issues play out in the lower courts.
UPDATE: In response to my hypothetical, a reader wrote in with the following analysis:
Re: your question about whether a trial court is able to issue a TRO in a class action before the class is certified: See CCP § 527(b), which provides that “a temporary restraining order or a preliminary injunction, or both, may be granted in a class action,… whether or not the class has been certified.” Apparently this was the legislative reaction to the ruling in Clemons v. Western Camera Photo Hut (1981) 117 Cal.App.3d 392, which held that issuance of a preliminary injunction did constitute one-way intervention. This issue is discussed in the Court of Appeal’s now-vacated Fireside opinion, 35 Cal.Rptr.3d 80, 93, fn 10:
In Clemons v. Western Photo Camera Hut (1981) 117 Cal.App.3d 392, 172 Cal.Rptr. 782, the same court that decided Home Savings embraced the argument the Supreme Court refused to reach in Pacific Land, supra, 20 Cal.3d 10, 141 Cal.Rptr. 20, 569 P.2d 125: That because a motion for preliminary injunction requires a showing that the plaintiff is likely to succeed on the merits, the trial court is powerless to grant such a motion if the complaint includes class allegations and no class has yet been certified. More precisely, the court held that the trial court there had acted within its discretion by denying a preliminary injunction on the basis of Home Savings. (Id. at pp. 395-396, 172 Cal.Rptr. 782.) Under this holding, if a defendant were spewing toxic waste into a shared reservoir and a class action were filed on behalf of the reservoir's users, the trial court would act within its discretion by refusing to grant a preliminary injunction solely because to do so might forecast to class members the ultimate outcome of the case. It is hardly a surprise that the Legislature promptly overturned this holding by amending the governing statute to permit preliminary injunctions in class actions “upon the same grounds as in other actions, whether or not the class has been certified.” (1982 Stats., ch. 812, § 1, p. 3101; see now Code Civ. Proc., § 527, subd. (b).)
Thank you; that's very helpful.