In Harper v. 24 Hour Fitness, Inc., ___ Cal.App.4th ___ (Oct. 22, 2008), the Court of Appeal (Second Appellate District, Division Seven) reversed an order decertifying UCL and FAL claims for class treatment. One justice dissented.
In a pre-Prop. 64 order, the trial court had ruled that class certification was no longer "superior" to a non-class, UCL representative action, which the law permitted at the time. Slip op. at 5-6. The Court of Appeal aptly pointed out that Prop. 64 eliminated the non-class, representative action, so there was no streamlined alternative procedure that could be "superior" to class certification. Id. at 9-10 (citing Fireside Bank v. Superior Court, 40 Cal.4th 1069, 1092 (2007)).
The trial court also decertified the class due to "the ongoing difficulty in properly identifying the members of the certified class from [the defendant's] records." Id. at 11. The Court of Appeal said that this factor "may be considered as part of a properly conducted evaulation of the superiority of proceeding by class action," but that the trial court had misapplied that factor here:
[T]he need to individually examine each member’s contract to ultimately determine whether he or she qualifies for inclusion in the class does not, as suggested, demonstrate a lack of ascertainability or manageability or establish that common questions of fact or law do not predominate. (See Lee v. Dynamex, Inc. (2008) 166 Cal.App.4th 1325.)
With respect to the difficulty in confirming the identity of all class members prior to a determination on the merits, Division One of this court recently affirmed certification of a class consisting of FedEx drivers over FedEx’s objection “the members of this class shifted ‘in and out, sometimes on a day-to-day basis.’” (Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 14.) The court explained, “The class is ascertainable if it identifies a group of unnamed plaintiffs by describing a set of common characteristics sufficient to allow a member of that group to identify himself as having a right to recover based on the description. [Citation.] [¶] . . . If FedEx’s claim is that every member of the class had to be identified from the outset, FedEx is simply wrong.” (Ibid.; accord, Lee v. Dynamex, Inc., supra, 166 Cal.App.4th at p. 1335; see also Sav-On Drug Stores, supra, 34 Cal.4th at p. 333 [“‘a class action is not inappropriate simply because each member of the class may at some point be required to make an individual showing as to his or her eligibility for recovery’”]; Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, 1207 [class of employees ascertainable in spite of absence of specific rest period records; “speculation that goes to the merits of ultimate recovery [is] an inappropriate focus for the ascertainability inquiry”]; Bell v. Farmers Ins. Exchange (2004) 115 Cal.App.4th 715, 744 [fact that class may ultimately turn out to be overinclusive not determinative; most class actions contemplate eventual individual proof of damages, including possibility some class members will have none].)
Id. at 11-12. The Complex Litigator also has a detailed post on Harper.