There’s been some on-line analysis of the Cal Supremes decision Tuesday in Fireside Bank v. Superior Court, S139171 (see: Wage Law, Legal Pad). The case stands for the proposition that in the absence of special circumstances, defendants are entitled to have a hearing on class certification (and plaintiffs to decertification proceedings) before any merits based determinations. This makes sense; otherwise, for example, defendants can win a case on the merits as to one proposed class representative only to have another file the same case. This is called “one way intervention,” or “being pecked to death by ducks.” Premier Electrical Construction Co. v. National Electrical Contractors Assn., Inc. (7th Cir. 1987) 814 F.2d 358, 362.
The Cal Supremes are supposed to grant petitions for hearing in civil cases only in limited instances, most commonly to “secure uniformity of decision or to settle an important question of law,” (CRC 8.500(b)(1)), and not to correct error (for that, it depublishes Court of Appeal decisions). So I was a little surprised they took this up. The same thing was essentially decided by the same court in Green v. Obledo (1981) 29 Cal.3d 126, and before that by the Court of Appeal in Home Savings and Loan Association v. Superior Court (1974) 42 Cal.App.3d 1006 and Home Savings and Loan Association v. Superior Court (1976) 54 Cal.App.3d 208.
But buried deep in the opinion is another hit to typical defense positions on the role of the merits in deciding class matters. Traditionally, defendants will argue that a class is not certifiable if its membership can only be determined by looking at the merits. This was the holding in the Court of Appeals decision in Sony Electronics v. Superior Court, which, unfortunately, the Supreme Court depublished (meaning it loses its precedential value) last month.
On page 26 of the slip opinion of Fireside Bank, the Court held “’whether the claims or defenses of the representative plaintiffs are typical of class claims or defenses’ was an issue that might necessarily be intertwined with the merits of the case, but which a court considering certification necessarily could and should consider.” (Citing Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429.)
And Now, to Go Completely Off Topic. . . . . .
I read the Wall Street Journal's Law Blog every day, and it occasionally features "Today's YouTube Viewing," just about always completely off topic. So, what the heck, why not at CalBizLit as well. Saw Willie Nelson last night. Absolutely the best. So for your Thursday, here's Poncho and Lefty.