Careful allegations can avoid collateral estoppel issues

United States District Court Judge Claudia Wilken (Northern District of California) denied a motion to strike class allegations when the Court concluded that allegations concerning Kenmore Dryers were sufficiently different from allegations in a prior suit that collateral estoppel could not bar the present suit.  Murray v. Sears, Roebuck and Co., 2010 WL 3490214 (Sept. 3, 2010).  The Court described the basics of the collateral estoppel doctrine as follows:  

Collateral estoppel, or issue preclusion, bars re-litigation of issues when:

(1) the issue necessarily decided at the previous proceeding is identical to the one which is sought to be relitigated; (2) the first proceeding ended with a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the first proceeding.

Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 (9th Cir.2006). However, “it is inappropriate to apply collateral estoppel when its effect would be unfair.” Eureka Fed. Sav. & Loan Ass'n v. Am. Cas. Co. of Reading, Pa., 873 F.2d 229, 234 (9th Cir.1989).

Only the first element of collateral estoppel is at issue in this motion. Plaintiff disputes that the class certification issues necessarily decided in the previous proceeding are identical to those presently before the Court. The Court looks to four factors to aid in “[d]etermining whether two issues are identical for purposes of collateral estoppel: (1) is there a substantial overlap between the evidence or argument to be advanced in the second proceeding and that advanced in the first? (2) does the new evidence or argument involve the application of the same rule of law as that involved in the prior proceeding? (3) could pretrial preparation and discovery related to the matter presented in the first action reasonably be expected to have embraced the matter sought to be presented in the second? and (4) how closely related are the claims involved in the two proceedings?” Resolution Trust Corp. v. Keating, 186 F.3d 1110, 1116 (9th Cir.1999) (citations omitted).

Slip op., at 2-3.  The Court then compared the allegations from a prior case to those in the current one, concluding that the allegations in the current case were sufficient at the pleading stage to resolve the issue raised in the prior class action in the Seventh Circuit:

In granting class certification, the district judge said that because “Sears marketed its dryers on a class wide basis ... reliance can be presumed.” Reliance on what? On stainless steel preventing rust stains on clothes? Since rust stains on clothes do not appear to be one of the hazards of clothes dryers, and since Sears did not advertise its stainless steel dryers as preventing such stains, the proposition that the other half million buyers, apart from Thorogood, shared his understanding of Sears's representations and paid a premium to avoid rust stains is, to put it mildly, implausible, and so would require individual hearings to verify.

Id. at 748. In sum, the “deal breaker” against Thorogood's class allegations was “the absence of any reason to believe that there is a single understanding of the significance of labeling or advertising clothes dryers as containing a ‘stainless steel drum.’ ” Id.

Plaintiff has sufficiently amended his complaint so as to differentiate it from the complaint in Thorogood to avoid the application of collateral estoppel. Unlike the complaint in Thorogood, the amended complaint includes allegations that Defendants expressly advertised the significance of the fact that their dryers contain stainless steel drums. For instance, Sears' website describes the “Stainless Steel Drum” as “Durable Drum eliminates rusting and chipping for long lasting performance.” First Amended Complaint (1AC) ¶ 50 (emphasis added). Sears' website and in-store brochures state that Kenmore Dryers will “KEEP YOU CLOTHES LOOKING GREAT: An exclusive, all stainless steel drum provides lasting durability.” Id. ¶ 52 (upper case in original; emphasis added). These allegations are of the precise type that the Seventh Circuit said would distinguish Thorogood from a claim in which common issues might predominate.

Slip op., at 3-4.

Artful pleading saves the day.

Article III standing not shown and claims lacking necessary facts leads to dismissal of consumer class action alleging carcinogens in baby bath products

United States District Court Judge Claudia Wilken (Northern District of California) granted a motion to dismiss plaintiffs' Second Amended Complaint in a consumer class action alleging various defendants knowingly manufactured and sold bath products for children that contain probable carcinogens and other unsafe substances.  Herrington v. Johnson & Johnson Consumer Companies, Inc., 2010 WL 3448531 (Sept. 1, 2010).  The Court found the allegations related to the risk of harm too remote to satisfy the plaintiffs' Article III burden:

Plaintiffs do not cite controlling authority that the “risk of harm” injury employed to establish standing in environmental cases applies equally to product liability actions. At least two out-of-circuit cases are instructive on the nature of the increased risk of harm necessary to create an injury-in-fact. In Sutton v. St. Jude Medical S.C., Inc., a product liability case, the Sixth Circuit concluded that a plaintiff had standing when he alleged that the implantation of a medical device exposed him to “a substantially greater risk” of harm. 419 F.3d 568, 570-75 (6th Cir.2005). In Public Citizen, Inc. v. National Highway Traffic Safety Administration, the D.C. Circuit, addressing a petitioner's standing to challenge agency action, expressed doubts about finding that any increased risk of harm inflicted an injury-in-fact. 489 F.3d 1279, 1293-96 (D.C.Cir.2007). The court recognized that, under its precedent, standing was appropriate in such cases “when there was at least both (i) a substantially increased risk of harm and (ii) a substantial probability of harm with that increase taken into account.” Id. at 1295. These cases and Central Delta suggest that, to the extent that an increased risk of harm could constitute an injury-in-fact in a product liability case such as this one, Plaintiffs must plead a credible or substantial threat to their health or that of their children to establish their standing to bring suit.

Plaintiffs have not alleged such a threat. In essence, they complain that (1) 1,4-dioxane and formaldehyde are probable human carcinogens; (2) “scientists believe there is no safe level of exposure to a carcinogen,” 2AC ¶ 68; (3) children are generally more vulnerable to toxic exposure than adults; and (4) 1,4-dioxane and formaldehyde have been detected in Defendants' products. However, Plaintiffs do not allege that 1,4-dioxane and formaldehyde are in fact carcinogenic for humans. Nor do they plead that the amounts of the substances in Defendants' products have caused harm or create a credible or substantial risk of harm.  This contrasts with the showing in Central Delta, in which the landowners cited the defendant agency's own reports, which predicted that “the majority of the months during which the standard would be exceeded are projected to be peak-irrigation months during plaintiffs' growing seasons.” Central Delta, 306 F.3d at 948. The plaintiffs also cited reports showing “the negative effects of increased salinity on the various crops that they grow” and themselves reported that “their harvests were damaged in the past due to high salinity in the water.” Id. Here, Plaintiffs do not plead facts to suggest that a palpable risk exists. They only allege that 1,4-dioxane and formaldehyde may be carcinogenic for humans, that there could be no safe levels for exposure to carcinogens and that Defendants' products contain some amount of these substances. Indeed, as Plaintiffs plead, the Consumer Product Safety Commission (CPSC) has stated that, although the presence of 1,4-dioxane “is cause for concern,” the CPSC is merely continuing “to monitor its use in consumer products.” 2AC ¶ 64. The risk Plaintiffs plead is too attenuated and not sufficiently imminent to confer Article III standing.

Opinion, at 3.  The Court granted leave to amend, so it is unclear whether the plaintiffs can meet the challenging task of alleging facts that will satisfy their Article III standing.

The Court also offered some interesting remarks about Rule 9(b) as it pertains to the plaintiffs' fraud and UCL claims:

Herrington and Haley cite In re Tobacco II Cases, 46 Cal.4th 298, 93 Cal.Rptr.3d 559, 207 P.3d 20 (2009), to argue that they are not required to allege which representations they specifically saw. There, addressing the allegations necessary to plead reliance to establish standing to bring a UCL claim, the California Supreme Court stated that “where ... a plaintiff alleges exposure to a long-term advertising campaign, the plaintiff is not required to plead with an unrealistic degree of specificity that the plaintiff relied on particular advertisements or statements.” Id. at 328, 93 Cal.Rptr.3d 559, 207 P.3d 20; see also Morgan, 177 Cal.App.4th at 1257-58, 99 Cal.Rptr.3d 768. However, Plaintiffs have not plead that they viewed any of Defendants' advertising, let alone a “long-term advertising campaign” by Defendants. Even if they did, In re Tobacco II merely provides that to establish UCL standing, reliance need not be proved through exposure to particular advertisements; the case does not stand for, nor could it, a general relaxation of the pleading requirements under Rule 9(b). See, e.g ., In re Actimmune Mktg. Litig., 2009 WL 3740648, at *13 (N.D.Cal.).

As for alleged non-disclosures, a modified pleading standard applies “on account of the reduced ability in an omission suit ‘to specify the time, place, and specific content’ relative to a claim involving affirmative misrepresentations.” In re Apple & AT & TM Antitrust Litig., 596 F.Supp.2d 1288, 1310 (N.D.Cal.2008) (quoting Falk v. Gen. Motors Corp., 496 F.Supp.2d 1088, 1099 (N.D.Cal.2007)). Herrington and Haley's primary complaint is that Defendants did not disclose information concerning the presence of 1,4-dioxane and formaldehyde. See, e.g., 1AC ¶¶ 32, 198. Their failure to plead the time and place of these omissions will not defeat their claims. And reliance on these nondisclosures could be presumed if their allegations suggested that the omitted facts were material. See, e.g., Blackie v. Barrack, 524 F.2d 891, 906 (9th Cir.1975). However, Herrington and Haley have not made such allegations. Although they plead that they would not have purchased Defendants' products had they known of the presence of 1,4-dioxane and formaldehyde, a fact is material if a reasonable person “would attach importance to its existence or nonexistence in determining” whether to purchase the product. Morgan, 177 Cal.App.4th at 1258, 99 Cal.Rptr.3d 768 (citation and internal quotation marks omitted). Because Herrington and Haley have not averred facts that show that the levels of these substances caused them or their children harm, under the objective test for materiality, the alleged non-disclosures are not actionable.

Opinion, at 8.  Hmmm.  It's just a tiny bit of formaldehyde in your baby's bubble bath.  It's not a material fact.

Windows Phone 7 looks like it will be right in the thick of it at launch

History seems to be repeating itself.  I've been using an iPhone for several years now.  I have been very happy with it, but I decided to hold off on the iPhone 4 until it users put it through its paces.  Turns out to have been a good choice.  I don't need a phone that drops calls because you hold it in the wrong place, and I'm not enamored of a company that won't just admit to the issue and say that they are examining some potential solutions that don't require the phone to be in a case.

Enter Windows Phone 7.  Microsoft's long overdue return to the smartphone space looks like it will make an incredible splash.  Can Microsoft muscle into the market that iPhone owned and Google is now crashing into like a freight train?  I don't know, but I like what I have seen enough from Microsoft to begin taking steps that would make a move from an iPhone to a Windows Phone 7 to be relatively painless.  I expect that most of the applications I use on a regular basis will appear, in some form, on Windows Phone 7 in the first six months it is out.

The operating system looks amazing.  No doubt about it.  It is clean and modern.  What I don't know yet is whether the hardware will live up to the operating system.  You can't deny that Apple makes great-looking hardware.  The iPhone feel and build quality is first rate.  If I find a Windows Phone 7 handset on AT&T that looks as good and feels as solid, then I am sold.  HTC could do it.  We'll have to wait and see on the others.

I am sick of iTunes.  It is now the least responsive major program on my otherwise unstoppable i7-toting computer with its 8gb of ram and the 64-bit Windows 7 OS to use it all.  I would be filled with joy to find an entirely new ecosystem to live in as far as media and mobile applications are concerned.  Windows Media player and Zune software could fit that requirement nicely.  Now all I need is a good Windows Phone 7 handset...

If I make the jump to Windows Phone 7, I will regularly post about applications that would help the mobile litigator on the go.

District Court finds "first-to-file rule" inapplicable where first-filed case is no longer a class action

United States District Court Judge William Alsup (Northern District of California) denied a motion by defendant P.F.Chang's China Bistro, Inc. to transfer a putative wage & hour class action to the Central District of California.  Dubee v. P.F. Chang's China Bistro, Inc., 2010 WL 3323808 (N.D. Cal. Aug. 23, 2010).  Defendant asserted the "first-to-file rule" and an earlier case pending in the Central District as grounds for the transfer.  After explaining that the "first-to-file rule is an underdeveloped but generally recognized legal doctrine regarding duplicative lawsuits," the Court denied the motion:

When deciding whether to apply the first-to-file rule, the court looks to three threshold factors: (1) the chronology of the two actions; (2) the similarity of the parties; and (3) the similarity of issues. Ibid. The two actions need not be identical; it is enough that they are “substantially similar.” Nakash v. Marciano, 882 F.2d 1411, 1416 (9th Cir.1989).

In the instant action, the first factor of chronology is met. The Vasquez action was filed over a year before the instant action. The second factor, however, is not met. While P.F. Chang's China Bistro is the defendant in both actions, the plaintiffs are neither the same nor “substantially similar.” As stated, while the Vasquez action was originally filed as a putative class action, it is now proceeding solely as an individual action. In the instant case, plaintiff Dubee is proceeding as a representative plaintiff on behalf of himself and all other California P.F. Chang's employees that are similarly situated. While this class-if certified-could encompass the plaintiff in Vasquez, the claims asserted by the plaintiff in Vasquez do not (and will not) encompass plaintiff and the putative class in the instant action. For this reason, the two actions are not substantially similar with respect to the parties involved.

Slip op., at 2.  The Court noted as significant the fact that certification was never briefed in Vasquez.

District Court declines to decertify class because of alleged conflict-based inadequacy of counsel

United States District Court Judge Lawrence J. O'Neill (Eastern District of California) denied a renewed motion to decertify a class of former members of Calcot that marketed their cotton in a Seasonal Pool.  Andrews Farms v. Calcot, LTD., 2010 WL 3341963 (E.D.Cal. Aug. 23, 2010).  Defendants argued that counsel was inadequate because of an irreconcilable conflict between the interests of a former named plaintiff represented by counsel and the interests of the certified class.  The Court found class counsel to be adequate and declined to apply a mechanical disqualification rule:

Because class actions are unique, “the traditional rules that have developed in the course of attorneys' representation of the interests of clients outside of the class action context should not be mechanically applied to the problems that arise in the settlement of class action litigation.” In re Agent Orange Prod. Liab. Liti., 800 F.2d 14, 19 (2nd Cir.1986). Class actions provide a particular problem with respect to the rules on conflict because “the potential for conflicts in the course of representing numerous class members is greatly enhanced.” In re Joint Eastern and Southern Dist. Asbestos Litig., 133 F.R.D. 425, 431 (S.D.N.Y.1990). Thus, “although automatic disqualification might promote the salutary ends of confidentiality and loyalty,” the courts do not apply such rules automatically in a class action context, because automatic disqualification “would have a serious adverse effect on class actions.” In re Agent Orange, 800 F.2d at 18. Accordingly, to determine whether class counsel will represent the interests of the class vigorously, the Court must employ “a balancing of the interests of the various groups of class members and of the interest of the public and the court in achieving a just and expeditious resolution of the dispute.” In re Joint Eastern and Southern Dist. Absestos Litig., 133 F.R.D. at 431 (quoting In re Agent Orange, 800 F.2d at 19).

Slip op., at 8.

California Supreme Court activity for the week of September 1, 2010

The California Supreme Court held its (usually) weekly conference today.  Notable results include:

• A Petition for Review was granted in Parks v. MBNA (May 12, 2010) (whether state statute establishing a disclosure requirement for preprinted checks constitutes an impairment of the power of the issuing bank sufficient to trigger preemption under the National Bank Act)
• A Request for Depublication was denied in Bomersheim v. Los Angeles Gay And Lesbian Center (May 26, 2010) (reversed denial  of class certification in a negligence class action)

Widespread manifestation of a defect is not essential to class certification

The Ninth Circuit giveth and it taketh away.  On the one hand, the Fourth Amendment is better described as the Fourth Suggestion around these parts.  But consumer class actions received a booster shot last week.  In Wolin v. Jaguar Land Rover (9th Cir. Aug. 17, 2010), the Ninth Circuit reversed a denial of class certification in a consumer class action alleging a defective design in an automobile.  Plaintiffs Gable and Wolin each brought a class action lawsuit against Jaguar Land Rover North America, LLC (“Land Rover”) alleging that Land Rover’s LR3 vehicles suffer from an alignment geometry defect that causes tires to wear prematurely. The district court declined to certify a class because Gable and Wolin were unable to prove that a majority of potential class members suffered from the consequences of the alleged alignment defect.  The Ninth Circuit reversed.

The Court first examined commonality:

Federal Rule of Civil Procedure 23(a)(2) provides that “questions of law or fact common to the class” are a prerequisite to class certification. Commonality exists where class members’ “situations share a common issue of law or fact, and are sufficiently parallel to insure a vigorous and full presentation of all claims for relief.” Cal. Rural Legal Assistance, Inc. v. Legal Servs. Corp., 917 F.2d 1171, 1175 (9th Cir. 1990) (internal quotation marks and citation omitted). “The existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). [2]

Appellants easily satisfy the commonality requirement. The claims of all prospective class members involve the same alleged defect, covered by the same warranty, and found in vehicles of the same make and model. Appellants’ complaints set forth more than one issue that is common to the class, including: 1) whether the LR3’s alignment geometry was defective; 2) whether Land Rover was aware of this defect; 3) whether Land Rover concealed the nature of the defect; 4) whether Land Rover’s conduct violated the Michigan Consumer Protection Act or the Florida Deceptive and Unfair Trade Practices Act; and 5) whether Land Rover was obligated to pay for or repair the alleged defect pursuant to the express or implied terms of its warranties. These common core questions are sufficient to satisfy the commonality test. See Hanlon, 150 F.3d at 1019-20.

Slip op., at 11991.  The Court then rejected the argument that individualized factors would affect tire wear:  "What Land Rover argues is whether class members can win on the merits. For appellants’ claims regarding the existence of the defect and the defendant’s alleged violation of consumer protection laws, this inquiry does not overlap with the predominance test."  Slip op., at 11993.

Then, discussing typicality, the Court made what is probably the most striking pronouncement of the opinion:

Whether they experienced premature tire wear at six months, nine months, or later goes to the extent of their damages and not whether named appellants “possess the same interest and suffer[ed] the same injury as the class members.” E. Tex. Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395, 403 (1977) (internal quotation marks omitted). Typicality can be satisfied despite different factual circumstances surrounding the manifestation of the defect. See Daffin, 458 F.3d at 553. Gable and Wolin, like the rest of the class, may have a viable claim regardless of the manifestation of the defect. The fact that Gable and Wolin already received discounts and some free services also does not defeat typicality. See Lymburner v. U.S. Fin. Funds, Inc., 263 F.R.D. 534, 540 (N.D. Cal. 2010) (finding named plaintiff typical of class despite availability of plaintiff-specific remedy and finding “no authority for the argument that typicality is defeated because the remedies may be different for class members or that the availability of rescission as a remedy will monopolize this case”). Gable’s and Wolin’s claims are typical of the class.

Slip op., at 11996.  Finally, the Court concluded that superiority is closely connected to commonality:

Appellants aver that no other prospective class members have filed other related actions, and Land Rover does not dispute this point. The amount of damages suffered by each class member is not large. Forcing individual vehicle owners to litigate their cases, particularly where common issues predominate for the proposed class, is an inferior method of adjudication.

Slip op., at 11997.

Fun fact:  This same panel also heard the Mazza, et al. v. American Honda Motor Company case.

The government can sneak on your property and track your car with GPS, no warrant required; illegal options exist to jam trackers

In United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010), a panel of the Ninth Circuit concluded that no Fourth Amendment issues were implicated when police snuck onto Pineda-Moreno’s property at night and attached a GPS tracking device to the underside of his car. The device continuously recorded the car’s location, allowing police to monitor all of Pineda-Moreno’s movements without the need for visual surveillance and without a warrant. The panel held that none of that implicated the Fourth Amendment, even though the government conceded that the car was in the curtilage of Pineda-Moreno’s home at the time the police attached the tracking device.

A petition for rehearing en banc was filed.  The petition did not receive the majority vote necessary for rehearing and was denied.  Chief Judge Kozinski had some choice words for the Court:

Having previously decimated the protections the Fourth Amendment accords to the home itself, United States v. Lemus, 596 F.3d 512 (9th Cir. 2010) (Kozinski, C.J., dissenting from the denial of rehearing en banc); United States v. Black, 482 F.3d 1044 (9th Cir. 2007) (Kozinski, J., dissenting from the denial of rehearing en banc), our court now proceeds to dismantle the zone of privacy we enjoy in the home’s curtilage and in public. The needs of law enforcement, to which my colleagues seem inclined to refuse nothing, are quickly making personal privacy a distant memory. 1984 may have come a bit later than predicted, but it’s here at last.

Slip op., at 11504.  On fire, the Chief Judge continued:

The panel authorizes police to do not only what invited strangers could, but also uninvited children—in this case crawl under the car to retrieve a ball and tinker with the undercarriage. But there’s no limit to what neighborhood kids will do, given half a chance: They’ll jump the fence, crawl under the porch, pick fruit from the trees, set fire to the cat and micturate on the azaleas. To say that the police may do on your property what urchins might do spells the end of Fourth Amendment protections for most people’s curtilage.

Slip op., at 11508.  In a particularly introspective moment, the Chief Judge argues that the bench is lacking in persons familiar with the life experiences of the poor:

There’s been much talk about diversity on the bench, but there’s one kind of diversity that doesn’t exist: No truly poor people are appointed as federal judges, or as state judges for that matter. Judges, regardless of race, ethnicity or sex, are selected from the class of people who don’t live in trailers or urban ghettos. The everyday problems of people who live in poverty are not close to our hearts and minds because that’s not how we and our friends live. Yet poor people are entitled to privacy, even if they can’t afford all the gadgets of the wealthy for ensuring it. Whatever else one may say about Pineda-Moreno, it’s perfectly clear that he did not expect—and certainly did not consent—to have strangers prowl his property in the middle of the night and attach electronic tracking devices to the underside of his car. No one does.

Slip op., at 11508-9.  Ouch.

Speaking of ways to protect your privacy from a government run amok, Gizmodo points out that certain cheap (but illegal) GPS jammers are available in an article prompted by this decision.  Please don't engage in any unlawful conduct to protect your constitutional rights.  That would be wrong.

Worldmark v. Wyndham Resort: an e-mail address is an "address"

In Worldmark, the Club v. Wyndham Resort Development Corporation (August 23, 2010), the Court of Appeal (Third Appellate District) reviewed a case arising under the Corporations Code after a member sought access to membership records of nonprofit mutual benefit corporation Worldmark. Worldmark is a California nonprofit mutual benefit corporation owned by its more than 260,000 members. It owns vacation time share resorts throughout North America. Wyndham is an Oregon corporation that manages the operations of Worldmark's resorts pursuant to a management agreement.

Who cares, you say?  You do!  Consider the facts. A Worldmark member invoked section 8330 to demand that Worldmark "make available" to its members a petition proposing amendments to the corporation's by-laws. When Worldmark refused, the member demanded a right to inspect and copy Worldmark's membership records, including the email addresses of its members, for the purpose of distributing the petition. Email is one of the methods that Worldmark uses to communicate with its members. When Worldmark denied the demand, it proposed the use of a third party mail house to send the petition as a “reasonable alternative” that achieved the purpose in the demand.  The member petitioned and the Court denied the petition.

Who cares, you say again?  You do!  Why?  Because the trial court reversed, holding:

We shall conclude that the term "members'. . . addresses," in section 8330, subdivision (a) (1), which a corporation is required to disclose, is sufficiently broad to encompass email addresses in light of the section's purpose and in light of allied sections that allow a corporation to communicate with its members for the purpose of the corporation's business.

Slip op., at 3-4.  Now you care.  A court just said that an e-mail address is an "address."  I know.  This holding is limited to an interpretation of a provision in the Corporations Code.  But this is where it starts - the recognition that e-mail is now as much a means of communication as a phone number or a physical address.

If you still don't care, I can't help you.

In Gutierrez v. California Commerce Club, Inc., Court of Appeal reverses order sustaining a demurrer to class allegations in a wage & hour suit

Those corporate employers are nothing if not a tenacious lot.  They keep challenging class action allegations at the pleading stage despite a substantial weight of authority finding that approach to be improper in most class actions.  In Gutierrez v. Commerce Club, Inc. (August 23, 2010), the Court of Appeal (Second Appellate District, Division One) reviewed a trial court order sustaining a demurrer to class allegations without leave to amend in a suit alleging, among other things, that the plaintiffs and other similarly situated members of the putative class were injured by the Club's unlawful policy and practice of denying meal and rest breaks to certain hourly, non-union employees.

After stating the procedural history in fair detail, the Court restated some of the purposes for class action litigation:

The wisdom of permitting the action to survive a demurrer is elementary.  "'Class action litigation is proper whenever it may be determined that it is more beneficial to the litigants and to the judicial process to try a suit in one action rather than in several actions. . . . It is clear that the more intimate the judge becomes with the character of the action, the more intelligently he may make the determination. If the judicial machinery encourages the decision to be made at the pleading stages and the judge decides against class litigation, he divests the court of the power to later alter that decision . . . . Therefore, because the sustaining of demurrers without leave to amend represents the earliest possible determination of the propriety of class action litigation, it should be looked upon with disfavor.' [Citation.]" (Tarkington, supra, 172 Cal.App.4th at p. 1511; see also Prince, supra, 118 Cal.App.4th at p. 1326.)

Slip op., at 7-8.  The Court then agreed with the defendant that there have been occasions where class allegations were resolved at the demurrer phase.  But the Court went on to explain that wage & hour cases were not amongst those relatively rare examples:

The Club is correct that there are circumstances in which granting a motion to strike or sustaining a demurrer without leave to amend a class action complaint will be appropriate. A review of the cases in which courts have approved the use of demurrers to determine the propriety of class actions, however, reveals that the majority of those actions involved mass torts or other actions in which individual issues predominate.

Slip op., at 8.  In contrast to mass tort actions, the Court found that wage & hour cases were generally unsuited to evaluation of class claims on the pleadings:

There is no discernible difference between this action and the wage and hour cases (or their type) at issue in Prince and, more recently, in Tarkington. As we explained in Prince and reiterated in Tarkington, such cases "'routinely proceed as class actions' because they usually involve '"a single set of facts applicable to all members,"' and '"one question of law common to class members."'" (Tarkington, supra, 172 Cal.App.4th at p. 1511, quoting Prince, supra, 118 Cal.App.4th at pp. 1327–1328.) As long as the lead plaintiff "'alleges institutional practices . . . that affected all of the members of the potential class in the same manner, and it appears from the complaint that all liability issues can be determined on a class-wide basis,'" no more is required at the pleading stage. (Tarkington at p. 1511.)

Slip op., at 9.  The Court finished its discussion with emphasis:

We return again to and rely upon the well-established principle, that "only in mass tort actions (or other actions equally unsuited to class action treatment) [should] class suitability . . . be determined at the pleading stage. In other cases, particularly those involving wage and hour claims, [such as the instant action,] class suitability should not be determined by demurrer." (Prince, supra, 118 Cal.App.4th at p. 1325, italics added; see also Tarkington, supra, 172 Cal.App.4th at p. 1512.)

Slip op., at 11.

While their message should be clear, somehow I doubt that it will appreciably reduce that massive waste of resources devoted to pleadings challenges.