California Court of Appeals, Second District, Third Division
APPEAL from an order of the Superior Court of Los Angeles County No. BC485401, William F. Fahey, Judge.
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The Gillam Law Firm, Jody M. Borrelli and Carol L. Gillam for Plaintiffs and Appellants.
Fraser, Watson & Croutch, Todd E. Croutch and Daniel K. Dik for Defendant and Respondent.
The plaintiffs Daniel Hendershot et al. appeal the trial court’s order denying their motion for class certification. The trial court found that the proposed class was not sufficiently numerous because a majority of the putative class members had entered into releases and arbitration agreements with the defendant Ready to Roll Transportation, Inc.
We find that the order must be reversed on the following grounds: (1) the court’s analysis of the “numerosity” factor was incorrect; (2) the court improperly considered the merits of defendant’s affirmative defenses; and (3) the court denied plaintiffs due process by failing to grant them an adequate opportunity to perform discovery on and brief certification issues.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Complaint
On May 24, 2012, plaintiffs filed a putative class action against defendant for failure to pay overtime wages, among other causes of action. The complaint alleged that the putative class members were non-exempt employees who chauffeured vehicles for defendant, and that defendant failed to compensate them for periods when they were required to remain on-call in between trips transporting clients. Plaintiffs amended the complaint twice and defendant filed an answer. The second amended complaint defined the class as “[a]ll non-exempt, chauffeur employees who worked ‘on call time’ without compensation, who are or who have been employed by DEFENDANT in the State of California at any time during the four years prior to the date of the filing of this action.”
2. Plaintiffs Serve Discovery and Agree to Grant Defendant An Extension
On June 28, 2012, plaintiffs propounded requests for production, requests for admissions and a form interrogatory on defendant. On July 27, 2012, defendant asked for a one-month extension to respond to the discovery. Plaintiffs conditioned such an extension on defendant’s agreement that it would provide (1) “good faith, substantive responses, and not simply objections” as well as (2) “the contact information for all putative class members.” The defendant’s counsel “agree[d] to the proposal” and said it would employ a “[Belaire] notice procedure” to provide plaintiffs’ counsel with contact information for the class. Defendant's counsel committed to providing plaintiffs’ counsel with a draft of a Belaire notice within a week.
3. Defendant Does Not Comply with the Discovery Agreement
Defendant thereafter obtained new counsel. On September 7, 2012, defendant’s new counsel acknowledged the parties’ agreement regarding the discovery extension but asked for additional time to “review the [Belaire] Notice [and] communicate with my client about the details." Plaintiffs' counsel agreed to the extended timeframe, and defendant’s counsel agreed to finalize the Belaire notice by September 26, 2012.
However, defendant’s counsel did not send plaintiffs’ counsel a draft Belairenotice. On September 18, 21 and 25, 2012, plaintiffs’ counsel contacted defendant’s counsel by phone and email seeking to determine if defendant had any revisions to the draft Belaire notice. Defendant's counsel did not respond. During this time, defendant’s chief executive officer, Gale Ricketts, met individually with 29 putative class ...