USA – CALIFORNIA Law and Practice Contributed by: Steven Kaufhold, Jonathan Gaskin and Urvashi Malhotra, Kaufhold Gaskin LLP
With respect to class actions, applicable California law, set forth in CCP § 382, defines a California class action as follows: “...[w]hen the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.” With respect to representative actions, a prominent example is the Private Attorneys General Act, Labor Code §§ 2698 et seq Section 2699 (a) describes representative action under PAGA as follows: “Not- withstanding any other provision of law, any provi- sion of this code that provides for a civil penalty to be assessed and collected by the Labor and Workforce Development Agency or any of its departments, divi- sions, commissions, boards, agencies, or employees, for a violation of this code, may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of the employee and other current or former employees against whom a violation of the same provision was committed pursu- ant to the procedures specified in Section 2699.3.” 3. Procedure for Bringing Collective Redress/Class Actions 3.1 Mechanisms for Bringing Collective Redress/Class Actions There are two primary means of pursuing collective redress in California: class actions and representa- tive actions. Class actions are governed generally by CCP § 382 and can apply to a wide variety of sub- stantive areas. Representative actions are governed primarily by Bus. & Prof. C §§ 17200 et seq, Civil Code §§ 1750 et seq, and Labour Code §§ 2698 et seq and target the narrower areas of unfair competition, consumer protection, and employment rights. Each of these mechanisms features a plaintiff acting on behalf of additional, similarly situated parties under Court supervision. 3.2 Overview of Procedure California Class actions begin with the filing of a Complaint in one of the 52 California Superior Courts with allegations that a plaintiff is pursuing claims on behalf of a defined group of putative class members.
Defendant[s] can file either a Demurrer – which is the California version of a federal Motion to Dismiss – to challenge the legal sufficiency of the Complaint or an Answer. Civil discovery follows and may focus on class issues, substantive issues, or both. Eventually, the plaintiff will file a Motion for Class Certification, which the defendant[s] will have an opportunity to oppose. Finally, if certification is granted, the case will proceed forward on a class-wide basis. If certification is denied, that order is generally appealable under the California “death knell” doctrine, and the plaintiff may seek review before having to decide whether to pro- ceed on an individual basis. 3.3 Standing The California Constitution does not have any provi- sion similar to Article III standing in the US Constitu- tion, as the Court recognised in National Paint & Coat- ings Ass’n v State of California , 58 Cal., 58 Cal.App.4th 753,761 (1997) (“Our state Constitution includes no ‘case or controversy’ requirement.”) Instead, lesser standing requirements are included in various Califor- nia statutes and in court decisions. Lacking an Article III requirement, standing in respect of California col- lective redress/class actions is generally much more permissive than in federal court. For example, for years, California plaintiffs could bring UCL claims on a representative basis pursu- ant to 17200 et seq, notwithstanding having suffered no harm themselves. While this has changed with respect to UCL claims, California standing remains far more permissive than in federal court in other con- texts. More recently, California courts have permit- ted PAGA plaintiffs to pursue representative claims in court under PAGA even when: • their own individual claims had been either ordered to arbitration; or • settled entirely. 3.4 Class Members, Size and Mechanism – Opting In or Out California law does not specify a minimum number of class members that a plaintiff must represent in order to obtain class certification. Instead, California courts consider whether putative class members are so “numerous” that “it is impracticable to bring them
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