Garza, Alejandro vs. Gipson Farms, Inc.

The Court here notes counsel and Plaintiff have assumed a fiduciary duty to the members of the class when bringing a class action. (La Sala v. American Sav. & Loan Assn. (1971) 5 Cal.3d 864, 871.) In Pirjada v. Superior Court, 201 Cal.App.4th 1074, a wage and hour class action, while discovery requests from the plaintiff seeking the contact information of class members were pending, the defendant's CEO negotiated and settled with the named plaintiff without attorney involvement, resulting in a letter similar to what was presented in the case at hand. (Id. at 1079.)

In response, Pirjada's counsel, relying primarily on Best Buy Stores, L.P. v. Superior Court (2006) 137 Cal.App.4th 772, moved for an order providing notice to members of the proposed class that substitution of a suitable class representative was necessary. (Id at 1079-1080.) The Pirjada court emphasized that counsel was free to communicate with anyone who may wish to pursue a claim, citing the decision in Parris v. Superior Court (2003) 109 Cal.App.4th 285, 296 but concluded "[c]ourt-sanctioned notice is neither necessary nor appropriate under the circumstances of this case." (Id. at 1080.) The trial court denied the motion as to notice to members. (Id.)

" 'Precertification class discovery is not a matter of right. ... Before allowing class counsel to find a viable class representative, trial courts must apply a balancing test and weigh the actual or potential abuse of the class action procedure against the potential benefits that might be gained.' (Starbucks Corp. v. Superior Court (2011) 194 Cal.App.4th 820, 825 [writ of mandate issued directing superior court to vacate order permitting precertification discovery that would have harmed the putative class members' protected privacy rights].)" (Id. at 1084.)

Additionally: ""...precertification discovery may be allowed in appropriate circumstances to identify a substitute class representative in place of one who is not able to serve in that capacity, as well as to assist the lead plaintiff in learning the names of other individuals who might assist in prosecuting the action. But the obligation to notify absent class members before dismissing the case rests with the superior court, not the lead plaintiff or class counsel. The nature and extent of that notice must be decided by the court itself. (See La Sala, supra, 5 Cal.3d at p. 874 [action should not be dismissed "without undertaking such measures as [the court] may direct to notify the members of the class "]; Rule 3.770(c) [notice of proposed dismissal must be given "in the manner and to those class members specified by the court"].)

Indeed, as Rule 3.770(c) provides, no notice to absent class members is required at all "if the court finds that the dismissal will not prejudice them." Whether or not the superior court's initial decision not to notify potential class members that Pirjada now lacks standing to represent the class was correct, the court will necessarily revisit that question when it hears its order to show cause regarding dismissal. Counsel's declaration in support of the petition for writ of mandate indicates a new class representative cannot be identified by the informal means authorized in Parris, supra, 109 Cal.App.4th 285, and discussed by the superior court during the May 26, 2011 hearing.

Assuming that remains the case, Westrup Klick will have an opportunity to demonstrate to the court that some form of notice is required to avoid prejudice to absent class members. It would be inappropriate for us to prejudge the outcome of that hearing or to restrict the superior court's discretion by attempting to outline the factors it should weigh in deciding how to comply with the requirements of La Sala, Kagan and Rule 3.770." (Id. at 1088.)

The Court takes the same position here as in Pirjada, that counsel may communicate or attempt to locate any suitable replacement class representative, but that the Court will not sanction a notice of potential class members to find a suitable class representative. Here, the Court agrees there is a risk in this case of abuse, given that the only named Plaintiff has entered into a settlement of the individual claims. This appears to the Court, at this stage, that the litigation is driven by counsel, as no suitable replacement has yet been identified. (Howard Gunty Profit Sharing Plan v. Superior Court (2001) 88 Cal.App.4th 572, 579-580.)

On the other side of the balancing test, no class has been certified, no notice has been issued and there is no evidence any absent employee has suffered a change in their legal rights due to this lawsuit or its present position. However, the Court notes that Defendant's arguments that Plaintiff's individual settlement requires dismissal of this class action lawsuit and that Defendant should recover fees for breach of the settlement agreement are without merit. As noted above, the class action cannot be dismissed by the Plaintiff, as Court approval is required.

Pirjada, supra, 201 Cal.App.4th at 1080 notes that its trial court stated, correctly, that: "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.' " (Id. at 1080.)

Further: ""Pirjada's agreement to request his lawyer dismiss the case with prejudice was not self-executing and, in fact, was only the first step in a process that requires court approval of any such dismissal (see Rule 3.770(a)). Because Pirjada, as well as his counsel, assumed a fiduciary duty to the members of the class when he sued on their behalf (see La Sala, supra, 5 Cal.3d at p. 871), he may have been required by the court, as a condition of approval of his settlement, to assist in an effort to find a suitable substitute class representative. (Id. at pp. 871-872; see Rule 3.770(c) [notice of a proposed precertification dismissal may be given "in the manner specified by the court"].)

Items Nos. 27 and 29 of the outstanding discovery requests could have played a role in that effort. (Cf. National Solar Equipment Owners' Assn. v. Grumman Corp. (1991) 235 Cal.App.3d 1273, 1281-1282 [1 Cal. Rptr. 2d 325] ["unnamed class members are 'parties' for purposes of discovery"]; Earley v. Superior Court (2000) 79 Cal.App.4th 1420, 1434, fn. 11 [95 Cal. Rptr. 2d 57] [same].) Accordingly, although it did not do so, in the circumstances presented here it would not have been an abuse of discretion for the superior court to have acted to safeguard the rights of potential class members by granting the motion to compel and requiring Pacific National to provide names and contact information using the third party administrator, opt-out procedure approved by the Supreme Court in Pioneer Electronics (USA), Inc. v.

Superior Court, supra, 40 Cal.4th 360, as was done, for example, in Best Buy, supra, 137 Cal.App.4th 772 and CashCall, Inc. v. Superior Court, supra, 159 Cal.App.4th 273."

As such, the Court is not basing its ruling granting this motion to permit the substitution on the terms of Plaintiff Garza's individual settlement agreement. As the Court has already set an OSC re: dismissal for August 18, 2026, the Court will permit such time for a representative plaintiff to be named and obtain a status on counsel's efforts to obtain a substitute representative. At that time, the Court will consider, in the absence of a replacement representative, dismissal pursuant to Rule of Court, rule 3.770.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings. Re: John Deere Financial vs. Toor, Santokh S