118 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com of the trial court and the Court of Appeal after remand demonstrate that manageability concerns and the lack of a viable trial plan can be an obstacle to class certification. In one refreshing application of Duran, the Court of Appeal upheld denial of class certification where the plaintiffs—property inspectors claiming to be insurance employees misclassified as independent contractors— proposed a trial plan that would have denied the defendant its right to due process.398 The plaintiffs proposed that their expert would testify by relying on hearsay evidence contained in his survey of class members.399 The Court of Appeal rejected this affront to due process: “[a]lthough an expert ‘may rely on inadmissible hearsay in forming his … opinion … and may state on direct examination the matters on which he … relied, the expert may not testify as to the details of those matters if they are otherwise inadmissible.’”400 The Court of Appeal explained: “Defendants have the right to defend against plaintiffs’ claims by impeaching the evidence supporting them. … Plaintiffs’ proposed procedure forestalls defendants’ exercise of this important right.”401 5.14.4 Broad pre-certification class discovery Under federal law, the Ninth Circuit has held that a federal district court erred in ordering a defendant to produce a list of putative class members to help the plaintiff find someone to bring a class action under California law.402 The Ninth Circuit reasoned that it was an abuse of the federal discovery rules “to find a client to be the named plaintiff before a class action is certified.”403 In California, it’s different. The Court of Appeal, to help class-action plaintiffs’ lawyers, has held that a plaintiff need not even belong to the asserted class to have standing to obtain precertification discovery.404 At issue was an order permitting pre-certification discovery to identify class members who might become substitute plaintiffs in place of the original plaintiff.405 The Court of Appeal upheld a trial court ruling that the rights of absent class members outweighed the potential for abuse of the class procedure.406 5.14.5 Successive class actions Under federal law, the limitations period is tolled by the filing of a class action—until the denial of class certification—under the so-called American Pipe doctrine.407 But that tolling applies only for successive individual claims by members of the putative class; the limitations period is not tolled for successive class actions.408 The U.S. Supreme Court confirmed this point in a 2018 decision: “Upon denial of class certification, may a putative class member, in lieu of promptly joining an existing suit or promptly filing an individual action, commence a class action anew beyond the time allowed by the applicable statute of limitations? Our answer is no. American Pipe tolls the statute of limitations during the pendency of a putative class action, allowing unnamed class members to join the action individually or file individual claims if the class fails. But American Pipe does not permit the maintenance of a follow-on class action past expiration of the statute of limitations.”409 In California it once was different. In Fierro v. Landry’s Restaurant., Inc. (2018), the Court of Appeal gave plaintiffs’ counsel the remarkable gift of allowing a class action filed in 2016 to relate back to a class action filed in 2007 (moving the limitations period, for wage claims, back to 2003). The beleaguered defendant in Fierro argued that the limitations period on any class claim had begun to run in 2010, when the trial court in the first action issued an order denying class certification, so the 2016 class suit was untimely.410 But Fierro concluded that tolling was continued by the plaintiff’s appeal of that order and by the filing of an amended complaint.411 Fierro justified this peculiar result by pointing to differences between federal and California law.412 First, in federal court the denial of class certification is an interlocutory order, not reviewable as of right until after the entry of final judgment, while California recognizes a death-knell doctrine that allows immediate appeal of the denial of class certification.413 Second, in federal court, an order is final for purposes of claims preclusion until reversed or set aside, while in California an order remains non-final while an appeal is pending.414 Third, federal courts allow further class certification motions where a previous motion is denied, while California courts do not allow successive motions for class certification, because the denial of class certification is appealable.415 Fierro concluded that these differences between federal and state civil procedure justified tolling the limitations period for class actions,
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