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.