In In re BCBG Overtime Cases, 163 Cal.App.4th 1293 (Jun. 13, 2008), the Court of Appeal (Fourth Appellate District, Division Three) approved the filing of an evidentiary, preemptive motion by the defendant to deny class certification — before the plaintiff has sought certification.
A couple of points for plaintiffs' attorneys facing such motions:
- This holding conflcts with Sharp v. Next Entertainment, Inc., 163 Cal.App.4th 410 (2008), in which the Court of Appeal (Second Appellate District, Division Three) held that a defense evidentiary motion to “preemptively” determine the class representatives’ adequacy “was an end-run around the certification procedures and an attempt to deny plaintiffs the ability to present their case." Id. at 439. (For more on Sharp, see this blog post.)
- The Rules of Court do not authorize defense evidentiary motions to deny class certification. Such a motion is not listed in Rule of Court 3.764(a), which sets forth the kinds of motions that may be filed to determine whether or not a class may be certified. The omission was intentional. The Judicial Council Committee report accompanying the adoption of the class action rules (current Rules 3.760-3.771 [former Rules 1850-1861], adopted eff. Jan. 1, 2002) states: "The rule does not include a provision that would allow a party to move for a determination that a class action is not appropriate; this argument may be made in opposition to a certification motion."