Recent class certification decision: In re BCBG Overtime Cases

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:

1. 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.)

2. 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."

Comments

[TommyK]

The California Supreme Court approved defense-initiated motions to deny certification long ago in City of San Jose v. Superior Court. The Sharp case merely prohibited the use of a disqualification motion as a means to attack the adequacy of a class representative. It did not purport to overrule City of San Jose (nor could it, as it came from an inferior court).

The CRC does not AUTHORIZE any particular kinds of cert-related motion. It merely sets forth a special briefing schedule for certain such motions. The mere fact that there is no rule of court for a special briefing schedule for motions to deny cert does not mean that such motions are forbidden (the CRC would state that if that was the intent). If anything, the omission in the CRC of motions to deny cert means that they can be briefed under the shorter, CCP briefing schedule (16 court days notice).

[Kimberly A. Kralowec]

The Rules of Court trump decisional law on such procedural matters. Rule 3.764(a) does, in fact, authorize specific, enumerated types of motions, and a motion to preemptively deny certification is not among them. That, along with the Judicial Council Committee Report's statement of its intent that such motions not be permitted, is conclusive in my view.

[TommyK]

Yes, the rules enumerate several kinds of class certification-related motions, but they never state that it is an all-inclusive list.

For example, you can move to strike class allegations under the CCP if the grounds for striking the class allegations appear on the face of the complaint (e.g., the complaint says the class is only 3 people). Since that is a motion directed at class certification (at least indirectly), your reading of the CRC would say that such a motion has been barred by implication.

I would think that if the California Supreme Court expressly holds that parties are allowed to use a procedure (as it did in City of San Jose), there is a presumption that if the CRC is going to bar that procedure, it should do so expressly. I'd be curious to know how much weight statements in committee reports have been given in the past.

[Kimberly A. Kralowec]

First of all, I don't agree with your reading of City of San Jose, but that aside, there is case law (which I don't have time to look up for you) that states that the Rules of Court have the same force and effect as statutory enactments. Their adoption history would be treated in the same way as the legislative history of statutes. Given such a clear and unequivocal statement that the drafters of the Rules did not intend to permit defense motions to deny certification, and the fact that the language of the Rules they adopted does not authorize such motions, the committee report should be given virtually conclusive weight. After all, the relevant question is the drafters' intent.

As for whether the Rule states that the list of authorized motions is "all-inclusive," the language they used suggests that it is, but even if it doesn't, the drafters didn't have to state it explicitly. Have you never heard of inclusio unius est exclusio alterius?

Finally, I'm not saying that proper motions to strike that are authorized by the Code of Civil Procedure are barred. The authority for a motion relating to class certification would have to come from the CCP or the Rules of Court. Neither one authorizes an evidentiary defense motion to preemptively deny class certification (which is what the court was addressing in BCBG).