“To Certify This Class …, the Court Must Find That the Named Plaintiffs Have Retained Competent Counsel to Represent the Class”
An excerpt from a March 10 order by Judge Somnath Raj Chatterjee (Alameda County [Cal.] Superior Court) in Evans v. Execushield, Inc.:
This is a wage and hour putative class and PAGA [Private Attorneys General Act] action regarding employees who worked as security guards for the defendant. Plaintiff filed a motion for class certification on May 31, 2024. The motion in part sought to certify a “Rounding Subclass” for “All members of the Class whose clock-in and clock-out times were rounded from their actual clock-in and clock-out times.” The first issue raised in the Opposition was that the plaintiffs “do not assert a ’rounding’ claim, nor do they identify any such class in their First Amended Class Action Complaint.” They argued that “Denial of class certification for an unplead claim and class is appropriate.”
The plaintiffs filed their Reply Brief on November 4, 2024. Their lead argument asserted that the Court should certify their rounding claim even though it was not stated in the complaint. The Reply Brief stated:
While the rounding claim was not explicitly stated in the First Amended Complaint (“FAC”), its certification is not precluded. Courts have routinely held that class certification can be granted for claims that are reasonably related to those in the complaint, especially when they arise from the same set of facts and legal theories. In Sav-On Drug Stores, Inc. v. Superior Court, 34 Cal. 4th 319, 326 (2004), the California Supreme Court stated that “courts are not obligated to deny certification where the complaint omits facts that would support class treatment.” Furthermore, in Ghazaryan v. Diva Limousine, Ltd., 169 Cal. App. 4th 1524, 1537 (2008), the California Court of Appeal held that “the court may consider new claims, constructively adding them to the complaint, so long as their addition does not create prejudice.” …
The legal proposition that a court may “constructively” add new claims to a complaint for class certification and thus certify claims not pled was news. It turns out that the quotations in Sav-On and Ghazaryan and the asserted holding in Ghazaryan that counsel represented to be California law simply do not exist. The Court conducted a Westlaw search for the quoted language in those cases but found none in any California or federal case.
Before the hearing on 2/18/25, the Court issued a tentative decision that stated: “The court ORDERS counsel for plaintiff to appear and to be prepared to direct the Court to the relevant pages in Sav-On and Ghazaryan, or to the origin of the phrases if they came from a treatise or some other source.”
At the hearing on 2/18/25, Ms. Le appeared for the plaintiffs and acknowledged that the two cases did not include the two direct quotations or stand for the propositions asserted. Counsel stated that she used a “tool” (which the Court understood to mean an electronic program that most likely employed some form of artificial intelligence) to help prepare the Reply Brief.
She stated that a “law clerk” brought to her attention that Save-On and Ghazaryan did not support the assertions in a draft of the Reply Brief and that she agreed with the “law clerk.” She stated that she intended to remove those matters from the Reply Brief before it was filed, but for reasons she did not explain, that did not
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