Motion to Strike Class Allegations Upheld
By John Anthony
Multiple wage and hour related class actions continue to be filed daily throughout California. Defense of these cases is often centered on an effort to defeat class certification, meaning that the case can proceed only as an individual action on behalf of the named plaintiff(s). Typically, after substantial discovery has taken place, the plaintiff will file a Motion for Class Certification, presenting evidence on why the court should determine that proceeding as a class action is appropriate. In response, the defendant files an Opposition to Class Certification, generally contending that class treatment is inappropriate. Rather than wait to oppose a class certification motion, some California employers have affirmatively sought an order to deny, or strike, class allegations from the complaint.
In In re BCBG Overtime Cases, on June 13, 2008, the California Court of Appeals for the Fourth Appellate District reaffirmed a defendant’s right – in a purported class action lawsuit – to affirmatively move to strike the class allegations from a complaint even before a representative plaintiff moves for class certification.
In this case, a group of managers and assistant managers for the clothing retailer BCBG Maxazria (BCBG) brought a lawsuit against their employer claiming various violations of California’s wage-and-hour laws. The plaintiffs’ complaint purported to be brought on behalf of all similarly situated managers and assistant managers in all of BCBG’s California locations. BCBG filed a motion “to strike class allegations pursuant to California Rules of Court, rule 1857(a)(3) and/or for judgment on the pleadings.” In its motion, BCBG explained how each of its managers and assistant managers had vastly different jobs and accordingly were not similarly situated enough to properly be certified as a class. In support of its contentions, BCBG also submitted declarations of 25 current or former managers and assistant managers from various California stores supporting its contentions.
The Plaintiffs opposed BCBG’s motion, contending it was an improper attempt to circumvent the class certification process and that evidence outside the pleadings could not be considered on a motion to strike. The trial court, however, agreed with BCBG and granted the motion to strike the class allegations, finding the motion was properly before it because “class certification issues may be determined at any time during the litigation” and evidence outside the pleadings could be considered. Moreover, the trial court found that BCBG had met its burden to show that the action is not suitable for class certification by producing “substantial evidence which establishes that Plaintiffs cannot prove the elements of typicality or commonality necessary for class certification.” The California Appellate Court affirmed the trial courts decision, reasoning among other things that the trial court’s class certification decision complied with all the requirements imposed by applicable rules of procedure.
The California Appellate Court’s decision to confirm an employer's right to affirmatively dispute the propriety of class certification in advance of a plaintiff’s Motion for Class Certification may well create strategic advantages for the defense.