ORIGINAL PROCEEDINGS in mandate. Michael M. Johnson, Judge. Petition denied. (Los Angeles County Super. Ct. No. BC451138)
The opinion of the court was delivered by: Perluss, P. J.
CERTIFIED FOR PUBLICATION
Putative class representative Obaidul H. Pirjada filed a complaint on behalf of himself and a proposed class of all security guards who had been employed in California by Pacific National Security, Inc. (Pacific National) during the immediately preceding four years, asserting causes of action for failure to provide meal and rest periods and various other wage-and-hour claims, as well as a claim for unfair business practices. After Pirjada settled his individual claim through direct negotiations with Pacific National's chief executive officer, respondent superior court granted Pirjada's counsel leave to amend the complaint to name a new class representative but denied his motion to compel precertification discovery to identify a suitable class representative. Counsel for Pirjada, purportedly on behalf of his client, has petitioned for a writ of mandate challenging the order denying discovery. We deny the petition and vacate the previously ordered stay of the order to show cause regarding dismissal, which may proceed pursuant to the requirements of La Sala v. American Savings & Loan Assn. (1971) 5 Cal.3d 864 (La Sala), Kagan v. Gibraltar Sav. & Loan Assn. (1984) 35 Cal.3d 582 (Kagan) (Kagan disapproved in part on another ground in Meyer v. Sprint Spectrum L.P. (2009) 45 Cal.4th 634, 643, fn. 3), and California Rules of Court, rule 3.770 (Rule 3.770).
FACTUAL AND PROCEDURAL BACKGROUND
On December 13, 2010 Pirjada filed a complaint, and on January 10, 2011 a first amended complaint, against Pacific National for failure to provide meal and rest periods (Lab. Code, §§ 226.7, 512), failure to pay overtime and straight time wages (Lab. Code, §§ 510, 1194), collecting or receiving employee wages (Lab. Code, § 221), failure to timely pay wages (Lab. Code, § 203), failure to maintain and provide accurate itemized pay statements (Lab. Code, § 226) and unfair business practices (Bus. & Prof. Code, § 17200 et seq.). The lawsuit, which alleged Pirjada had been employed as a security guard by Pacific National from May 2008 until August 2010, was brought on behalf of all security officers in California who are or were employed by Pacific National at any time during the four-year period prior to filing the complaint.
Pacific National answered the first amended complaint on February 24, 2011. On March 10, 2011 Pirjada served by United States mail on counsel for Pacific National a request for production of documents, set one, containing 29 numbered requests, including request 27--"all documents and electronic records which set forth the names and the last known addresses for security guards [employed by you at any time during the four-year period prior to December 13, 2010] whose employment with you terminated"--and request 29--"all documents and electronic records which set forth the names and last known addresses for security guards employed by you [at any time during the four-year period prior to December 13, 2010]." Pacific National did not object or otherwise respond to the document request within 30 days as required by Code of Civil Procedure section 2031.260, did not seek an extension of time to respond and did not move for a protective order.
In March 2011 N. Joe Ramirez, chief executive officer of Pacific National, negotiated a settlement of Pirjada's claims directly with Pirjada. According to Ramirez's declarations submitted in subsequent proceedings in the superior court, Pirjada approached him at a hearing for unemployment benefits in January 2011, said he was no longer interested in maintaining the class action lawsuit against Pacific National and asked Ramirez to contact his attorney about a settlement. Ramirez explained he negotiated directly with Pirjada only after his efforts to pursue settlement with Pirjada's lawyers at Westrup Klick LLP were unsuccessful. On March 15, 2011 Pirjada signed and sent to Westrup Klick a letter stating, "I have resolved the above case [Pirjada v. Pacific National Security, BC451138]. Please immediately dismiss my claims in the above Lawsuit with prejudice. Enclosed, please find my settlement agreement and a check for your services."
Pirjada's counsel did not dismiss the lawsuit. Instead, on May 2, 2011, relying primarily on Best Buy Stores, L.P. v. Superior Court (2006) 137 Cal.App.4th 772 (Best Buy), counsel moved for an order providing notice to members of the proposed class that substitution of a suitable class representative was necessary. The proposed order contemplated use of a third-party administrator to enable counsel to learn the identity only of those putative class members who were willing to be contacted about the lawsuit.
Pacific National opposed the motion and separately filed its own motion to dismiss Pirjada's complaint with prejudice pursuant to Rule 3.770 based on the parties' settlement. In its tentative ruling for the hearing on May 26, 2011, the superior court characterized the two motions as, in effect, "cross motions seeking alternative relief in light of a settlement reached by the named plaintiff and the defendant, independently of counsel."
As to the motion to dismiss, the court's tentative ruling noted, although Pirjada had joined in Pacific National's request to dismiss the action, Rule 3.770(a) requires trial court approval before a class action may be dismissed. The court then explained, "The fact that a named plaintiff individually settles his claims does not divest him or his counsel of their [fiduciary] obligations to the putative class members. If the trial court concludes that the named plaintiff can no longer represent the claim, 'It should at least afford plaintiffs the opportunity to amend their complaint, to redefine the class, or to add new individual plaintiffs, or both, in order to establish a suitable representative,'" citing La Sala, supra, 5 Cal.3d at page 872. Accordingly, the court indicated it would deny the motion to dismiss and grant 60 days leave to amend to add any new plaintiffs as class representatives.
With respect to the motion for class notice, the court distinguished Best Buy, as well as CashCall, Inc. v. Superior Court (2008) 159 Cal.App.4th 273, because they involved alleged injuries to unsuspecting classes of consumers and "there was no practical way to determine which putative class members were injured and capable of replacing the disqualified class representatives," while in this case the putative class of security guards "is clearly defined and its members know for themselves whether they were injured and wish to assert claims against Defendant." The court emphasized that counsel was free to communicate with anyone who may wish to pursue a claim, citing our decision in Parris v. Superior Court (2003) 109 Cal.App.4th 285, 296 (Parris), but concluded "[c]court-sanctioned notice is neither necessary nor appropriate under the circumstances of this case."
At the hearing on the motion Pirjada's counsel stated he intended to move to compel responses to the previously served discovery requests that sought contact information for members of the proposed class. Counsel for Pacific National argued the question of a motion to compel was not before the court and added, since the court had just denied notice to the class, it should certainly deny a motion to compel discovery that was even more expansive. The court declined to comment on the issue of discovery, set August 4, 2011 for an order to show cause regarding dismissal of the complaint and otherwise adopted its tentative ruling as the ruling of the court.
On June 9, 2011 Pirjada's counsel moved for an order compelling responses to requests 27 and 29 in the first set of requests for production of documents (security guard contact information), with a hearing date of July 21, 2011.*fn1 The moving papers noted Pacific National had failed to serve any responses to the entire set of discovery and all objections, therefore, had been waived. Counsel explained Pirjada had been unable to provide contact information for any other putative class members because he had worked at only one location and was the only guard assigned there. In addition, Pirjada had first contacted counsel after his employment had ended. "Thus, in an effort to fulfill its fiduciary duty to the Class and avoid what would be the legal equivalent of a dismissal of the action as to all class members, Plaintiff's counsel files the instant motion to compel to allow for the discovery of a new class representative."
Pacific National opposed the motion to compel, principally arguing (1) Pirjada had settled all his claims before the responses to discovery were due; therefore, it had no duty to respond to the discovery requests. (2) Pirjada's counsel had no right and no standing to seek to compel responses because the discovery had been served by Pirjada. (3) The motion was, in effect, an impermissible motion ...