Dunbar v. Albertson's Ordered Published

The First District Court of Appeal has reconsidered its decision not to publish Dunbar v. Albertson's, Inc., and it is now a published opinion. The Dunbar decision is interesting for two reasons. First, it reinforces the reality that certification is won or lost at the Superior Court level. Reversing an order granting or denying certification after Sav-On is going to be a daunting task for either side. Second, we believe it has confirmed an expanded scope of pre-certification discovery, which has traditionally been limited to "certification-based" issues and not "merits-based" issues if discovery on liability issues would be expensive and time-consuming. Carabini v. Superior Court (King) (1994) 26 Cal.App.4th 239, 241.

In Dunbar, the Court of Appeal refused to overturn an order denying certification because, although the trial court has an obligation to consider the use of "innovative procedural tools proposed by a party to certify a manageable class," the party seeking class certification "must explain how the procedure will effectively manage the issues in question". Because the court found that Dunbar had not really done so, the trial court decision stood.

Imposing this burden -- showing specifically how the proposed procedure would aid the court -- at the certification stage means that, when the manageability of a large or complex class is disputed, a trial court cannot deny a putative class representative the right to inquire as to the merits of at least a sampling of the putative class. One cannot explain to a trial court how a suggested procedure will effectively manage the issues in question without conducting some discovery that addresses the merits of the claims, and how "exemplar plaintiffs, survey results, subclassing, or other means" would yield an accurate assessment of, and a fair trial on, the claims of the putative class and the defenses of the employer or other class defendant.

Many trial courts have viewed the scope of pre-certification discovery this way for years. Others, however, have automatically denied class representatives any inquiry that addresses liability, regardless of the expense or time involved in such discovery, following Carabini v. Superior Court without careful analysis. If Dunbar stands, those courts will need to reassess their views on pre-certification discovery. When that happens, the numerous employers and employer-side firms who begged for this decision to be published may second-guess their decision to request publication of this decision.

Comments

[TommyK]

The case is better for employers than you let on. In LASC, class actions are routinely deemed non-complex and assigned to judges with little class action experience. Some of them (e.g., George Wu) have openly commented that all wage hour class action merit certification, apparently from a misreading of Sav-On. Being able to put a case in front of them that explicitly reasoned why an exempt/non-exempt case may not be appropriate for certification makes it more likely they will be persuaded to deny cert. I agree with your first point, though. A certification or denial where a trial court has at least purported to consider the correct standards and reached a conclusion is almost unreviewable. I leave it to you whether it is sensible public policy to have multi-million dollar decisions decided completely inconsistently based upon the personal proclivities of the trial judge.

[michael walsh]

Certainly Dunbar is a useful case for employers, especially with respect to the overtime cases. That is obvious. But a few defense firms have heralded this as the beginning of the end of class certification in these cases, and we wanted to point out not only that it is not that (any more than Sav-On was the end of all oppositions and decertifications), but that even this opinion is a mixed bag. While we won't be citing Dunbar in support of many certification motions, we certainly will be citing it in support of motions to compel.

[Paul A]

Loved the write up about this on the Sheppard Mullin site you link to. They claim this is the "new trend." One case is a trend? They say so. They add that it "could signal a trend" toward class certification being denied in ALL wage and hour claims, not just the detailed specifics of misclassification claims, but that "it continues to be prudent" for employers to follow state and federal law. Implicit in that advice is the reason why these class actions became a trend in the first place. If there isn't 100% HELL TO PAY when these cheaters get nailed, most employers and their lawyers recognize that it isn't prudent to follow the law!!!!!