Court of Appeal Limits Pre-Certification Discovery for Improper Class Representatives

The case of First American Title Insurance Company v. Superior Court, Second District, B194004 almost got lost in last week’s excitement over Pioneer Electronics v. Superior Court.  But the case is potentially important.

The issue, which has come up regularly in the wake of Proposition 64, is this: can a plaintiff in a class action who is not a member of the class and has never been a member of a class conduct pre-certification discovery to find more suitable class representatives?  The answer: an unequivocal no.  If the plaintiff was a suitable class representative but a law change knocks him out of the box, discovery to find class members may be appropriate.  But when the plaintiff was never a class member, allowing the discovery would be an abuse of the class action mechanism.

Good ruling for the defense.  There will almost certainly be a petition for review to the Supreme Court.  But the facts aren’t very attractive, and the Supremes don’t take a lot of discovery cases.

Comments

[michael walsh]

This was a case that actually presented the kind of facts that suit the defense complaints about "fishing" for plaintiffs. We mentioned it over at our blog, and although we think it is a great case for the Supreme Court to review, we wouldn't hold out a lot of hope for a reversal by the Supremes. In many an oral argument regarding this sort of La Sala discovery issue, we've heard the defense ask the proverbial question: "Where do you draw the line?" First American has a pretty decent answer to that question.