148 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com 392 Id. at 42-44. 393 Id. at 49-50. 394 Duran v. U.S. Bank Nat’l Ass’n, 19 Cal. App. 5th 630 (2018). 395 Id. at 641. 396 Id. at 647. 397 Id. at 650-51. 398 McCleery v. Allstate Ins. Co., 37 Cal. App. 5th 434, 448 (2019) (affirming trial court’s conclusion that “plaintiffs’ proposed class action would not be superior to individual actions because their survey failed to address ‘all of the information needed for an accurate determination of liability,’ and the trial plan ‘deprive[d] defendants of the right of cross-examination and the ability to present their affirmative defenses”). 399 Id. at 453 (“plaintiffs expressly admit they intend to answer the ultimate question in this case based solely on expert testimony—testimony founded on multiple hearsay that defendants could never challenge.”). 400 Id. (quoting Korsak v. Atlas Hotels, Inc., 2 Cal. App. 4th 1516, 1525 (1992)). 401 Id. (citing Goldberg v. Kelly, 397, U.S. 254, 269-70 (1970)). 402 In re Williams-Sonoma, Inc., 947 F.3d 535, 540 (9th Cir. 2020) (“[respondent] contends that the information sought in discovery was relevant to class certification issues. … That does not undercut, or water down, the primary point that using discovery to find a client to be the named plaintiff before a class action is certified is not within the scope of Rule 26(b)(1).”) (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 353 (1978)). 403 Id. The case involved a suit for misleading statements as to the thread count on bedding, but its general principles apply to an employment case. Williams-Sonoma has uncertain breadth, however, and may be limited to a case where the plaintiff’s discovery request is solely to find a new class representative. See Arredondo v. Sw. & Pac. Specialty Fin., Inc., 2019 WL 6128657, at *3 (E.D. Cal. Nov. 19, 2019) (“[D]istrict courts in th[e] [Ninth] Circuit have often found that as a general rule, before class certification has taken place, all parties are entitled to equal access to persons who potentially have an interest in or relevant knowledge of the subject of the action, but who are not yet parties. For that reason, discovery of the putative class members’ contact information is routinely allowed.”) (internal citations and quotations omitted); Martin v. Sysco Corp., 2017 WL 4517819, at *3 (E.D. Cal. Oct. 10, 2017) (“Disclosure of contact information for putative class members is a common practice in the class action context.”) (citing Artis v. Deere & Co., 276 F.R.D. 348, 352 (N.D. Cal. 2011)). 404 CashCall, Inc. v. Superior Court (Cole), 159 Cal. App. 4th 273, 290-91 (2008) (“We conclude the Parris balancing test should be applied by trial courts in exercising their discretion whether to grant or deny an original plaintiff’s precertification motion for discovery of the identities of class members regardless of whether that original plaintiff had standing at the beginning of the action.”) (citing Parris v. Superior Court, 109 Cal. App. 4th 285, 300-01 (2003)). 405 The named plaintiffs, debtors of the defendant, were suing for surreptitious telephone monitoring but discovered that they themselves were never monitored; only others were. Id. at 279. 406 Id. at 292-93. For discussion of how California favors the interests of class actions, as represented by plaintiffs’ lawyers, over the privacy interests of employees, see § 4.10. 407 Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 552-53 (1974) (“We hold that in this posture, at least where class action status has been denied solely because of failure to demonstrate that the class is so numerous that joinder of all members is impracticable, the commencement of the original class suit tolls the running of the statute for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status.”). 408 Id.; Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 350-51 (1983) (limitations period tolled as to putative class members who file individual actions). 409 China Agritech, Inc. v. Resh, 138 S. Ct. 1800, 1804 (2018). 410 Fierro v. Landry’s Rest., Inc., 23 Cal. App. 5th 325, 337-38 (2018), rev. granted, No. S249487 (Cal. June 22, 2018), and transferred back to Court of Appeal (Cal. Aug. 29, 2018). 411 Id. at 340-41. 412 Id. at 338-41. 413 Id. at 339 (“[I]n federal court, the trial court’s denial of class certification is an interlocutory order, not reviewable as of right until after the entry of judgment. In contrast, in California state court, the death knell doctrine allows an immediate appeal of the trial court’s denial of class certification (or the trial court’s dismissal of class claims).”) (citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 467-77 (1978)). 414 Id. (“In federal court, a judgment or order, once rendered, is final for purposes of res judicata until reversed on appeal or modified or set aside in the court of rendition. In contrast, in California, while an appeal is pending (or the time to appeal has not yet expired), a judgment or order is not final for purposes of res judicata or collateral estoppel.”) (internal citations omitted). 415 Id. at 340. 416 Id. at 338-42. 417 Fierro v. Landry’s Rest., 425 P.3d 585 (Cal. 2018); China Agritech Inc. v. Resh, 138 S. Ct. 1800 (2018). 418 China Agritech, 138 S. Ct. at 1804 (tolling may be available to “allow[] unnamed class members to join the action individually or file individual claims if the class fails,” but tolling is not available for class action claims that would “permit the maintenance of a follow-on class action past expiration of the statute of limitations”). 419 Fierro v. Landry’s Rest. Inc., 32 Cal. App. 5th 276, 293 (2019).
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