• Kimberly A. Kralowec
    Kralowec Law, P.C.
    44 Montgomery Street,
    Suite 1210
    San Francisco, CA 94104
    Tel: (415) 546-6800
    Fax: (415) 546-6801

April 2018

Sun Mon Tue Wed Thu Fri Sat
1 2 3 4 5 6 7
8 9 10 11 12 13 14
15 16 17 18 19 20 21
22 23 24 25 26 27 28
29 30          

« Another new Prop. 64 "injury in fact"/reliance decision: McAdams v. Monier, Inc. | Main | New blog header design! »

Friday, June 01, 2007



Funny that an opinion that allegedly changed nothing could generate so many depublication requests. Having now read yours, I can see that it is you want to revolutionize class action law through your depublication request. That is, if the Cal Supremes adopted your position of certification and affirmative defenses, it certainly would be revolutionary.

You state that individualized issues as to affirmative defenses should not provide grounds to deny cert. Given that exemption from overtime is an affirmative defense, your statement that individualized issues as to affirmative defenses should never prevent certification is tantamount to saying that every exemption case SHOULD be certified. After all, if the exemption (i.e., the affirmative defense) is not to be taken into account, then every employee is entitled to overtime pay, meal periods and the like. Liability will be established on a class basis in every case merely by establishing that all of the class members were employees.

I read Walsh not as saying that any individualized issues on affirmative defenses preclude certification, but that where the existence of the affirmative defense is the predominant issue and the affirmative defense cannot be tried using collective proof, the trial court may exercise its discretion to deny cert. That is consistent with Sav-on, no?

I think the reality here is that Walsh made some very important contributions to class action law that either should be reviewed by the Cal Supremes or should be left alone. To use depublication on the basis that the opinion adds nothing to the law, however, is just a little bit disingenuous.

One more thing, Block v. Major League Baseball also denied class cert on the basis of predominant affirmative defenses. Your letter's suggestion that only two obscure uncited cases did so in the past is mistaken.

Kimberly A. Kralowec

The Court of Appeal originally issued Walsh as an unpublished opinion, correctly perceiving that it added nothing to class action jurisprudence. Your position on the substance of class action law is inaccurate for the reasons stated in the depublication request and in Sav-on, which summarized the plaintiffs' substantial evidence that common questions predominated as to the defendant's liability. You also misstate the basis of the depublication request. While I believe that Walsh adds nothing to class action jurisprudence, the depublication request was made on a very different basis -- that Walsh contains inaccurate language and could be misused as a precedent.

Moreover, Gerhard and Kennedy -- the two Court of Appeal cases that you call "obscure and uncited" -- were, in fact, cited in the Walsh opinion. That is why the depublication request discusses them -- to explain that they do not support the broad statement for which Walsh cited them. As discussed in the depublication request, not even the Walsh court itself held that an affirmative defense, standing alone, can defeat certification once common questions are established on liability.

Finally, you misinterpret Block v. Major League Baseball. In that case, as in Gerhard and Kennedy (the other two authorities cited by Walsh), non-common questions relating to liability -- in addition to defenses -- are what supported denial of certification: "Each use of a class member's name, voice, signature, photograph or likeness for each product ... will have to be examined for each class member to determine whether the use violates either his statutory right of publicity or his common law right of publicity ...." Block, 65 Cal.App.4th at 543. The affirmative defenses that also raised non-common questions were addressed two paragraphs later in the opinion.

It is, in fact, quite disingenous for anyone to cite Block v. Major League Baseball and the two other cases cited in Walsh (Gerhard and Kennedy) for the proposition that affirmative defenses, standing alone, can defeat class certification. While I could not mention this in the depublication request, the Court of Appeal's opinion in Sav-on -- a decision that cannot be cited to a court -- contains the following language, which the Supreme Court reversed:

A defendant may defeat class action certification by showing that the defenses to be offered raise individual issues specific to each member of the class that predominate over the issues in common. (Gerhard v. Stephens, supra, 68 Cal.2d 864, 913, 69 Cal.Rptr. 612, 442 P.2d 692 [in claims regarding mineral rights, not only would each plaintiff member need to establish his or her individual proof of title from predecessors, but "the defendants would undoubtedly raise the defense of abandonment of the mineral interests as to each alleged member of the class, which ... creates a factual issue as to the individual owner's intent"]; Kennedy v. Baxter Healthcare Corp., supra, 43 Cal.App.4th 799, 811, 50 Cal.Rptr.2d 736 [as to class of users of latex gloves, "[d]efenses will require individual litigation of claims. Health care workers may have been using latex gloves for a period of time exceeding the statute of limitations, thus requiring an examination of the viability of each plaintiff's claim. Questions will arise concerning assumption of the risk and comparative negligence"]; Block v. Major League Baseball (1998) 65 Cal.App.4th 538, 544, 76 Cal.Rptr.2d 567 [as to right of publicity of class of baseball players, "affirmative defenses of consent, waiver, or estoppel" would not be common for all members. "The fact that the trial court would be obligated to evaluate each of these defenses for each member of the class [ ] weighed heavily against certification"].)
Sav-on Drug Stores, Inc. v. Superior Court, 118 Cal.Rptr.2d 792, 796-97 (Cal. App. 2002), rev'd, 34 Cal.4th 319 (2004). You will note that the quoted language is vitually word-for-word identical to the language in Walsh that my depublication request challenges as inaccurate and subject to misuse as precedent:
[A] defendant may defeat class certification by showing that an affirmative defense would raise issues specific to each potential class member and that the issues presented by that defense predominate over common issues. (Gerhard v. Stephens (1968) 68 Cal.2d 864, 913, 69 Cal.Rptr. 612, 442 P.2d 692; Kennedy v. Baxter Healthcare Corp. (1996) 43 Cal.App.4th 799, 811, 50 Cal.Rptr.2d 736.)
Walsh, 148 Cal.App.4th at 1450. The Supreme Court in Sav-on could have, but did not, adopt this purported rule -- probably because a close reading of the three cited cases demonstrates its inaccuracy. In fact, the Supreme Court reversed the Court of Appeal’s opinion without even bothering to cite, much less rely on, any of those three decisions. Still, time and again you see defendants borrow this language from the Court of Appeal's Sav-on opinion without attribution. They do not cite Sav-on, an uncitable decision, but they cite Gerhard, Kennedy, and Block. Such a tactic attempts to revive a line of authority that the Supreme Court pointedly terminated in Sav-on. This tactic came close to succeeding in Walsh and I have seen it employed elsewhere.

Rule of Court 8.1105(e)(1) hampers plaintiffs' ability to respond to this tactic. Indeed, that Rule prevented me from citing the Court of Appeal's Sav-on opinion, which in turn prevented me from explaining this in my depublication request. This is unfortunate, because it is a highly relevant point for the Supreme Court to consider. Fortunately, the rules governing citation of opinions do not apply to this forum.


Thank you for your prompt and thoughtful response.

But you sidestepped the main upshot of your reasoning concerning overtime exemptions. You talk of "liability" and "affirmative defense" as if they are separate items, but they are not. An affirmative defense is merely an alternative means to avoid liability (the primary method being establishing that the plaintiff has failed to establish an essential element of a claim).

We all agree that exemption is an affirmative defense (so sayeth Sav-on). An employee establishes the essential elements of an overtime claim by showing that he or she was an employee, worked overtime, and was not paid premium pay. The employer then can avoid liability by proving an affirmative defense of exemption. If you imagine a case where the facts pertinent to the exemption vary drastically from one putative class member to another-- such as a proposed class of "all Microsoft employees"-- the predominant individualized issue is whether the particular employees' job duties differ so much that some establish an overtime exemption and some do not. Put another way, predominant issues as to affirmative defenses make it unworkable to establish liability to the proposed class using collective proof.

Yet, if there were a rule that certification denial cannot be based solely on the existence of a predominant affirmative defense (or on differing damages), certification would be mandatory in my hypothetical. I would assume that even you would agree that was not a result mandated (or even contemplated) by Sav-On.

The Sav-On appellate decision was reversed because the court of appeal had recognized essentially a mandatory rule that affirmative defenses always predominate in a typical exempt/non-exempt case. The Supreme Court held that was not necessarily the case and that the trial court was best positioned to evaluate whether there was a common issue that predominated over the individualized issue of the affirmative defense. The Supreme Court criticized the court of appeal for reweighing evidence; it didn't create new per se rules on certification of exemption cases. Sav-On certainly never said that affirmative defenses are irrelevant to the predominance element.

Walsh does not say that individualized issues as to affirmative defenses always preclude certification. It merely states that the trial court did not abuse its discretion in finding that they predominated on the factual record before it. While this is merely the same principle as the one recognized in Sav-On, the reason this is a good contribution to class action law is because it prevents plaintiff's lawyers who share your broad view of class certification from arguing successfully that "denial of certification can never be based on a predominant individualized issue going to an affirmative defense." And I hear that argument all the time.

As for my reference to the Gerhard and Kenned decisions as "obscure and uncited," I was simply picking up on your point that no court had cited them outside of Walsh. I view them, and Block v. MLB, as valid authorities since they have never been depublished or expressly overruled (or implicitly overruled in my opinion). If I understand your reasoning, you seem to take the position that Sav-On overruled all those cases sub silentio merely by saying that affirmative defenses do not ALWAYS provide a basis to deny certification. (Sav-On, 34 Cal. 4th at 337-38).

In any event, I stand by my larger point. If you really believe that Walsh was wrongly decided because it blessed the notion of denying class certification as a result of predominant individualized affirmative defenses, the Cal. Supreme Court should grant review of the decision rather than depublish it. Better we get some clarification of the law. If Qualls & Workman took it this far, I am sure they would be willing to take it to the Cal. Supremes as well.

Thanks again for running a great blog. I read it often.

Kimberly A. Kralowec

There are, indeed, qualitative differences between the elements of a cause of action (what the plaintiff must prove to establish "liability") and an "affirmative defense" (what the defendant must prove to avoid it). While an affirmative defense does, as you observe, allow a defendant to "avoid liability," there are obvious differences as far as the burdens of pleading and proof are concerned. To a defendant faced with paying a monetary judgment, these differences are, perhaps, academic. For purposes of analyzing class certification, however, they are anything but.

Sav-on held that requiring a plaintiff to prove at the class certification stage that affirmative defenses can be established or defeated via common proof would improperly shift the burden of establishing the affirmative defense from the defendant to the plaintiff. That is why affirmative defenses, standing alone, cannot be used to defeat certification once the plaintiff has established that common questions will predominate on the elements of the cause of action (which I have been loosely referring to as "liability").

That is also the primary reason why the language from Walsh that my depublication request challenges is highly misleading and could be misused as a precedent. The language suggests that an affirmative defense, standing alone, may defeat class certification, which is contrary to Sav-on.

I have never said that I thought Walsh was "wrongly decided." A careful reading of the opinion shows that the trial court's decision to deny certification (as well as the Court of Appeal's affirmance) was not based solely on affirmative defenses. Perhaps that decision was correct; I don't know because I haven't seen the evidence. My quarrel with the decision is its misleading language -- language that could have been omitted without affecting the outcome of the appeal. The Court of Appeal was right to begin with when it decided that the opinion did not meet the standards for publication.

Finally, there could be many reasons why the plaintiff's counsel in Walsh chose not to file a petition for review. Those reasons may have nothing to do with their assessment of the merits of the opinion. This is not the first time that the non-prevailing party chose to seek depublication instead of review, and it will not be the last.


Badly need your help. There is a great deal of difference between an eager man who wants to read a book and the tired man who wants a book to read. Help me! It has to find sites on the: Stock market shares. I found only this - economy stock market. Email address required but never displayed.  European markets rise on strong corporate earnings european commentary mins ago. Thanks :eek:. Aiko from Cyprus.

ed hardy

uarrel with the decision is its misleading language -- language that could have been omitted without affecting the outcome of the appeal. The Court of Appeal was right to beg

The comments to this entry are closed.

2018 Supreme Court Calendar



  • Nothing in this blog constitutes legal advice or a solicitation for business. If you need legal advice, consult an attorney in your jurisdiction. To read this blog's complete disclaimer, click here.

  • The UCL Practitioner
    © 2003-2018
    by Kimberly A. Kralowec
    All rights reserved.

  • Enter your email address:

    Delivered by FeedBurner

  • Header design by Webmotion
    Photos by Jack Gescheidt
    Powered by TypePad