No Set Limit for Numerosity Requirement in Class-Action

In a wage-and-hour class action (Hendershot v. Ready to Roll Transportation, Inc., 228 Cal. App. 4th 1213) a California Court of Appeal reversed the denial of class certification and held that no set number applies to the numerosity requirement for a putative class.

The plaintiffs filed a class action against Ready to Roll (RTR) for failure to pay overtime wages and other various causes of action.  The complaint alleged that the plaintiffs were non-exempt employees who chauffeured for RTR and that RTR failed to pay them for on-call periods between services.  As soon as possible, the plaintiffs propounded discovery to determine potential class members.  When RTR asked for an extension, plaintiffs conditioned it on an agreement that RTR would provide good faith responses and not simply objections, and contact information for potential class members.  RTR then changed counsel, who acknowledge the parties’ agreement but failed to honor it in either respect.  Around the same time, RTR’s CEO met with putative class members and obtained 29 releases.  When the plaintiffs received incomplete discovery responses and boilerplate objections, they moved to compel further responses, including documents pertaining to RTR’s defenses.  The Court granted plaintiffs’ motion.   

The plaintiffs then applied ex parte to re-set the deadline to move for class certification based upon RTR’s discovery delays.  Although RTR consented, the Court denied the plaintiffs’ request.  Soon after, the parties scheduled the deposition of RTR’s CEO.  On the day before the deposition was to occur however, the defendant’s counsel stated without explaining, that the CEO was traveling out of state.  RTR finally provided the plaintiffs with the releases it obtained fifth months after the fact. 

The plaintiffs moved for class certification, arguing that the class was sufficiently numerous and had at least 53 potential members.  One week after, RTR produced 24 arbitration agreements that were signed prior to court’s order granting the plaintiffs’ motion to compel further responses.  In its opposition, RTR argued that most of the class members agreed either to arbitrate or already released their claims – a defense RTR raised for the first time.  The plaintiffs argued that RTR waived that defense, that it could not rely upon documents withheld in discovery, and that the agreements were unenforceable.   The Court denied class certification on the grounds that the plaintiffs only produced evidence of nine potential class members and ruled that the record did not demonstrate improper conduct or prejudice to the plaintiffs.

On appeal, the Court noted that “The question of class certification is essential procedural and does not involve the legal or factual merits of the action.”  To be sufficiently numerous, a class must be “numerous” in size such that “it is impracticable to bring them all before the court.” (CCP §382).  No set number exists.  The denial of class certification based on the conclusion that the remaining nine members did not constitute a sufficient number, without any analysis as to impracticality, was incorrect.  That ruling also improperly considered the merits of RTR’s defense.

The Court of Appeal also held that the trial court violated the plaintiffs’ due process rights by denying them the ability to conduct discovery and brief issues related to certification.  These violations included RTR not providing adequate notice of the arbitration agreement/release defense and allowing RTR to rely upon the late-produced documents.  RTR violated the parties’ agreement regarding discovery, did not produce the documents although they possessed them for months, and failed to produce the CEO for deposition as agreed upon, all to the detriment of plaintiffs. 

Based upon the foregoing, the Court of Appeal reversed the denial of class certification and remanded the case.