118 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com Meanwhile, California appellate decisions going the other way (in the employer’s favor) either were not published or suffered the indignity of being depublished by the California Supreme Court.390 5.14.3 Some limits to use of the class device In 2014, the California Supreme Court, in Duran v. U.S. Bank,391 corrected some but not all the ways that plaintiffs in wage and hour cases had abused the class device to disadvantage employers. Duran vacated a $15 million judgment that the trial court had entered on the basis of flawed statistical sampling in a case alleging that a bank had misclassified certain employees as outside salespersons. Duran limited the circumstances in which statistical sampling can establish class-wide liability. In particular, Duran ruled that courts cannot use sampling to deprive a defendant of its due process right to present affirmative defenses as to all class members.392 Perhaps most important, Duran reaffirmed that the plaintiff bears the burden to establish that class certification is appropriate, and ruled that trial courts, before deciding whether to certify a class, must determine that a class trial would be manageable.393 The Court of Appeal returned to this case in 2018, affirming an order denying class certification because the plaintiffs failed to show that the case was manageable as a class action.394 Agreeing with the trial court, the Court of Appeal noted that the defendant’s affirmative defenses “would appear to require a host of ‘mini-trials.’”395 There were also “multiple flaws” in the plaintiffs’ trial plan, including an inability to “use representative sampling to establish an aggregate restitution award.”396 The Court of Appeal thus concluded that the trial court had not abused its discretion in denying class certification.397 Although Duran did not reject the use of statistical sampling to establish class-wide liability, the decision makes it significantly more difficult for plaintiffs to use that approach. Duran also reaffirmed the requirement that class litigation be manageable, a requirement that California lower courts, until then, had often ignored. The decisions 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
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