APPEAL from orders of the Superior Court of Los Angeles County, Elizabeth A. Grimes, Judge. Dismissed. (Los Angeles County Super. Ct. No. BC 377969).
The opinion of the court was delivered by: Flier, J.
CERTIFIED FOR PUBLICATION
Appellants Randy Haro and Robert Ballin filed an action against respondent City of Rosemead, alleging in their complaint that this "is a collective action brought under 29 U.S.C. § 216(b), seeking compensation for all hours worked." Title 29 of United States Code section 216 is part of the Fair Labor Standards Act of 1938 (FLSA). The trial court denied appellants‟ motion to certify as a class under California Code of Civil Procedure section 382 (section 382) individuals who worked for respondent as nonexempt employees. This appeal is from that order.
We find that appellant‟s FLSA action cannot be maintained as a class action under section 382. For the reasons we state below, we conclude that the trial court‟s order was not appealable. Appellants also appeal an order denying leave to amend the complaint, which is not an appealable order. We dismiss both appeals.
Title 29 of United States Code sections 206 and 207 respectively govern minimum wages and maximum hours. In pertinent part, title 29 of United States Code section 216(b) provides that "[a]ny employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages." Section 216(b) goes on to provide that an action under this provision may be brought against any employer in a federal or state court "by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought." The italicized sentence is colloquially referred to as an "opt-in" provision (7B Wright et al., Fed. Practice and Procedure (3d ed. 2005) § 1807, p. 472) and it is this opt-in provision that this purported appeal addresses.
The opt-in feature of FLSA actions has been called "[p]robably the most significant difference in procedure between the FLSA" and, in federal practice, class actions under Federal Rules of Civil Procedure, rule 23 (rule 23). (7B Wright et al., Federal Practice and Procedure, supra, § 1807, p. 472.) As one court has put it: "There is a fundamental, irreconcilable difference between the class action described by Rule 23 and that provided for by FLSA § 16(b).*fn1
In a Rule 23 proceeding a class is described; if the action is maintainable as a class action, each person within the description is considered to be a class member and, as such, is bound by judgment, whether favorable or unfavorable, unless he has "opted out‟ of the suit. Under § 16(b) of FLSA, on the other hand, no person can become a party plaintiff and no person will be bound by or may benefit from judgment unless he has affirmatively "opted into‟ the class; that is, given his written, filed consent." (LaChapelle v. Owens-Illinois, Inc., supra, 513 F.2d at p. 288, fn. omitted.)
The fact that the opt-in feature is irreconcilable with a class action has not only been reaffirmed as a matter of federal civil procedure (Whalen v. W.R. Grace & Co. (3d Cir. 1995) 56 F.3d 504, 506, fn. 3), at least one California court has held that the opt-in feature cannot be adopted in California class actions. (Hypertouch, Inc. v. Superior Court (2005) 128 Cal.App.4th 1527, 1550 (Hypertouch).) We return to Hypertouch below.
While actions involving opt-in provisions have been called "collective actions" as opposed to class actions (7B Wright et al., Fed. Practice and Procedure, supra, § 1807, p. 468), the label is not important. The critical, but by no means the only, difference between FLSA actions and class actions is the opt-in versus the opt-out feature. Other differences are the tolling of the statute of limitations,*fn2 the definitions of parties "similarly situated,"*fn3 and the considerations affecting the trial court‟s involvement in an FLSA action in the process of notifying potential additional plaintiffs.*fn4
The procedural dynamics of a collective action when plaintiffs opt in are different from the class action when parties may opt out of the class. As the United States Supreme Court has noted, the problems generated by the notice of the pending action to potential plaintiffs in a collective action with the opt-in feature call for early and active intervention by the trial court. "A trial court can better manage a major ADEA*fn5 action if it ascertains the contours of the action at the outset. The court is not limited to waiting passively for objections about the manner in which the consents were obtained. By monitoring preparation and distribution of the notice, a court can ensure that it is timely, accurate, and informative. Both the parties and the court benefit from settling disputes about the content of the notice before it is distributed. This procedure may avoid the need to cancel consents obtained in an improper manner." (Hoffman-La Roche Inc. v. Sperling, supra, 493 U.S. 165, 171-172.) This differs markedly from a class action when the trial court‟s role, at least at the outset of the action, is more passive and restricted to ruling on whether the action should be certified as a class action.
In sum, FLSA actions are not class actions, whether the class action is governed by the federal rules of civil procedure or, in California, by section 382 and rule 3.760 et seq. of the California Rules of Court.
APPELLANTS' MOTION AND THE TRIAL COURT'S RULING
The case was set for trial on September 22, 2008. On July 17, 2008, appellants filed a motion for class certification under section 382. There is no ambiguity about this motion; it is in every respect a motion to certify as a class of approximately 45 current and former employees of respondent. The principal charging allegation of the motion, as of the complaint, was that respondent did not pay these employees the wages to which they were entitled. In accordance with appropriate class action procedure, appellants requested that the trial court "certify the following "opt-out‟ class for purposes of determining ...