146 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com 341 Id. at 487. 342 Bus. & Prof. Code § 17200 et seq. 343 Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1150-51 (2003) (UCL not an all-purpose substitute for tort or contract claim; disgorgement of profits allegedly obtained by unfair business practice not an authorized UCL remedy where profits are neither money taken from plaintiff nor funds in which plaintiff has ownership interest); Feitelberg v. Credit Suisse First Boston, LLC, 134 Cal. App. 4th 997, 1018 (2005) (extending Korea Supply to class-action context: affirming dismissal of claim for nonrestitutionary disgorgement in class action brought under UCL, as UCL authorizes only restitutionary disgorgement; “class action status does not alter the parties’ underlying substantive rights”). See also Pineda v. Bank of Am., NA, 50 Cal. 4th 1389, 1401-02 (2010) (Labor Code § 203 penalties are not recoverable as restitution under the UCL, because employees have no ownership interest in those penalties). 344 Pineda v. Bank of Am., 50 Cal. 4th 1389, 1401 (2010). For a discussion of waiting-time penalties due under Labor Code section 203, see §§ 7.5, 13.3. 345 Bus. & Prof. Code § 17203. 346 Cortez v. Purolator Air Filtration Products Co., 23 Cal. 4th 163, 179 (2000). 347 Pellegrino v. Robert Half Int’l, Inc., 181 Cal. App. 4th 713 (2010), rev. granted, No. S180849 (Cal. April 28, 2010) (the review was granted on issues relating to the administrative exemption, and then the case was remanded without a decision by the California Supreme Court). The Pellegrino decision is also notable for holding that the employer could not enforce a provision in its employment contract that shortened the deadline to sue. The Court of Appeal reasoned that shortening the limitations period was inconsistent with the fact that wage and hour laws protect unwaivable statutory rights supported by strong public policy. 348 See Kraus v. Trinity Mgmt. Servs., Inc., 23 Cal. 4th 116 (2000). But see Arias v. Superior Court (Angelo Dairy), 46 Cal. 4th 969, 979-80 (2009) (recognizing the effect of Proposition 64, see § 5.13.2). 349 Bus. & Prof. Code §§ 17203, 17204. 350 FINDINGS OF THE STUDY OF CALIFORNIA CLASS ACTION LITIGATION, 2000-2006 (Mar. 2009), at 5 (study sponsored by Judicial Council of California, Administrative Office of the Courts, Office of Court Research. 351 E.g., Campbell v. City of Los Angeles, 903 F.3d 1090, 1101 (9th Cir. 2018) (“A collective action is instituted when workers join a collective action complaint by filing opt-in forms with the district court.”); Rangel v. PLS Check Cashers of California, Inc., 899 F.3d 1106, 1109 (9th Cir. 2018) (“FLSA collective actions, unlike Rule 23(b)(3) class actions and their state law analogues, are strictly opt-in actions.”) (citing 29 U.S.C. § 216(b)) (emphasis in original); Misra v. Decision One Mortg. Co., LLC, 673 F. Supp. 2d 987, 992 (C.D. Cal. 2008) (“Potential collective action plaintiffs must ‘opt-in’ to the action by filing a written consent with the court…. If similarly situated employees do not ‘optin’ to the collective action, these employees are not bound by any judgment reached in the action.”) (citing Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 466 (N.D. Cal. 2004)). 352 E.g., Haro v. City of Rosemead, 174 Cal. App. 4th 1067, 1077 (2009) (“As a matter of California law, appellants cannot maintain their FLSA action as a section 382 class action where other employees must opt in to join the putative class.”); Chavez v. Netflix, Inc., 162 Cal. App. 4th 43, 59 (2008) (“[R]equiring class members to take affirmative steps to opt in has been held to be contrary to state … class action law and policy.”) (citing Hypertouch, Inc. v. Superior Court (Perry Johnson, Inc.), 128 Cal. App. 4th 1527, 1550 (2005)). 353 Harris v. Investor’s Bus. Daily, Inc., 138 Cal. App. 4th 28, 36 (2006) (“[A] single cause of action alleging violations of the FLSA under [California Business & Professions Code] [S]ection 17200 is not preempted by the FLSA opt-in requirement.”), as modified on denial of reh’g (Apr. 24, 2006). 354 Wang v. Chinese Daily News, 623 F.3d 743, 760 (9th Cir. 2010) (holding that the “FLSA does not preempt a state-law § 17200 claim that ‘borrows’ its substantive standard from [the] FLSA”), vacated on other grounds, 132 S. Ct. 74 (2001); see also Takacs v. A.G. Edwards & Sons, Inc., 444 F. Supp. 2d 1100, 1118 (S.D. Cal. 2006) (FLSA does not preempt California Business & Professions Code section 17200; “this [c]ourt finds persuasive the holding from numerous courts that have found no preemption by the FLSA in regards to UCL claims”). 355 Compare In re Bayol Cases I and II, 51 Cal. 4th 751, 757-58 (2011) (if state order terminates class claims, with individual claims persisting, then the order is immediately appealable) with Microsoft Corp. v. Baker 137 S. Ct. 1702, 1706 (2017) (federal order denying class certification is an interlocutory order, not reviewable as of right until a final judgment) and Fed. Rule Civ. P. 23(f) (federal order denying class certification can under limited circumstances be subject to a discretionary appeal). 356 See Parris v. Superior Court (Lowe’s HI W, Inc.), 109 Cal. App. 4th 285 (2003) (pre-certification communication by plaintiff’s counsel to individuals in potential class is constitutionally protected; trial court erred in denying motion for approval of content of such proposed communication, as motion was unnecessary; court also erred in denying motion to compel discovery of names and addresses of potential class members, where court did not expressly balance potential abuse of class action procedure against rights of parties). 357 E.g., Lab. Code §§ 218.5 (wage claims), 2699 (penalty claims). 358 Cortez v. Purolator Air Filtration Prod. Co., 23 Cal. 4th 163, 179 (2000) (Any action on any UCL cause of action is subject to the four-year period of limitations created by section 17208 of the California Business & Professions Code). 359 Landers v. Quality Commc’ns, Inc., 771 F.3d 638, 644 (9th Cir. 2014) (upholding dismissal of FLSA claim of cable services installer that his employer failed to pay him and similarly situated individuals minimum and overtime wages, where he failed to allege facts showing there was a specific week in which he was denied minimum or overtime wages; the pleading standards the U.S. Supreme Court set forth in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (requiring complaint to plead facts to state an antitrust claim for relief that is plausible on its face), also apply to FLSA claims, meaning “that conclusory allegations that merely recite the statutory language are [not] adequate”). 360 Gutierrez v. California Commerce Club, 187 Cal. App. 4th 969, 972 (2010). See also Prince v. CLS Transp., Inc., 118 Cal. App. 4th 1320 (2004) (trial court erred in determining class action suitability of wage-dispute case at pleading stage; Labor Commissioner hearings are not a superior method of resolution for a class of 500 drivers). 361 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-51, 131 S. Ct. 2541, 2551 (2011) (“sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question … and certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied”; “[A]ctual, not presumed, conformance with Rule 23(a)
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