Sams v. Sorenson Concrete CA3 ( 2021 )

Filed 11/3/21 Sams v. Sorenson Concrete CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
TRAVIS SAMS, C088905
Plaintiff and Appellant, (Super. Ct. No. 17CV02876)
v.
SORENSON CONCRETE, INC.,
Defendant and Respondent.
Travis Sams filed a wage and hour class action suit against his former employer,
Sorenson Concrete, Inc. (Sorenson). In response to the suit, Sorenson entered into
agreements with the majority of putative class members to release the claims alleged in
the suit for monetary payments. After 13 months, Sams moved for class certification.
The court denied certification in a one-paragraph ruling, reasoning that (1) Sams’ “claims
are atypical of the proposed putative class because Plaintiff did not sign a release
agreement, but the class members he seeks to represent did,” and (2) “there are credibility
problems sufficient enough to reject the adequacy of Plaintiff acting as class
representative.”
1
We agree with the trial court that Sams did not meet the typicality requirement of
a class representative for the putative class members who signed releases. We also
conclude that the trial court did not abuse its discretion in determining that Sams was not
an adequate representative because he had “credibility problems,” given his criminal
history and his inaccurate and incomplete deposition testimony on the subject.
However, the court should have given Sams a reasonable opportunity to amend the
complaint to add a class representative, subclass, or both. On that basis, the order of the
court is reversed and the case remanded to the trial court for that limited purpose.
FACTUAL AND PROCEDURAL BACKGROUND
Sorenson is a construction company in Chico, California that specializes in
concrete work. Sorenson employs about 30 people on its construction crews. Sams
worked as a construction laborer for Sorenson from October 2016 to March 2017.
On October 4, 2017, Sams filed a class action complaint against Sorenson alleging
seven causes of action for violations of the Labor Code and one cause of action under
Business and Professions Code section 17200. Sams alleged that Sorenson violated the
Labor Code and related regulations and wage orders regarding: (1) overtime wages, (2)
meal, rest and cool-down breaks, (3) termination wages, (4) work-related expenses, and
(5) itemized wage statements. Sams’ Business and Professions Code section 17200 claim
was predicated on the labor law violations and sought restitution and a permanent
injunction.
On November 8, 2018, Sams filed a motion for class certification. A supporting
declaration from counsel stated that, excluding members of the Sorenson family, 95
current and former employees had been identified from payroll records produced by
Sorenson. The declaration further stated that Sorenson had informed Sams of settlements
with putative class members on February 6, 2018, and produced 37 settlement
2
agreements.1 Sams argued that the release agreements did not affect the certification
analysis.
On November 26, 2018, Sorenson filed an opposition to the motion. Sorenson
argued, inter alia, that Sams was not an adequate class representative because his claims
were atypical of class members who had signed settlement agreements, since he had not.
Sorenson supported the opposition with a declaration from its president stating that
Sorenson had entered into 81 agreements with former and current employees releasing all
claims against Sorenson, including all claims alleged in Sams’ suit. The declaration
attached 68 releases entered into from January 2018 to June 2018. The agreements
provided for payments to the releasing employee ranging from $50 to $500.
Sorenson also argued that Sams was not an adequate class representative because
of his criminal history. Counsel for Sorenson submitted a declaration attaching an
excerpt from Sams’ deposition, in which he testified about an arrest in Sacramento for a
crime that led to his serving six months in jail. Sams could not recall how old he was at
the time or the specific nature of the crime. Sams also testified that he was arrested and
convicted for receiving stolen property. Sams explained that a person who had stolen a
generator left it at his house.
In reply, Sams argued that the release agreements did not prevent him from
meeting the adequacy and typicality requirements of a class representative. Sams
maintained that typicality only requires that the named plaintiff and class members share
the same injury. Sams requested, however, that “[i]n the event the Court concludes that
1 California law permits an employer to obtain settlement agreements and releases from
putative class members to resolve disputed compensation claims. (Chindarah v. Pick Up
Stix, Inc. (2009) 171 Cal.App.4th 796, 802; Watkins v. Wachovia Corp. (2009)
172 Cal.App.4th 1576, 1592.)
3
Plaintiff is not adequate or typical because he has not signed a release, Plaintiff should be
granted leave to amend the complaint to add a new representative.”
In a declaration accompanying the reply, Sams provided details of his arrests and
convictions. In 1999, Sams went to the home of his ex-wife and knocked down a man
Sams found drinking with her. Sams pleaded guilty to false imprisonment by force and
served 20 months. In 2011, Sams agreed to store a generator in his garage as favor to a
friend, not knowing the generator was stolen. Sams pleaded guilty to receiving stolen
goods and served a year. In 2010, Sams was charged with assault with a deadly weapon
and battery causing serious bodily harm, stemming from a fight with a gang member
neighbor beating his wife. The charges were dismissed when the neighbor told the
prosecutor that he had been drunk and attacked Sams first.2
On December 7, 2018, the trial court issued a one-paragraph tentative ruling on
Sams’ motion for class certification, stating in relevant part: “The Court finds that
Plaintiff’s claims are atypical of the proposed putative class because Plaintiff did not sign
a release agreement, but the class members he seeks to represent did. Essentially,
Plaintiff’s position is adverse to those he seeks to represent. In addition, [t]he Court finds
that there are credibility problems sufficient enough to reject the adequacy of Plaintiff
acting as class representative. On those grounds, Plaintiff’s Motion for Class
Certification is denied.”
At a hearing on the same day, the court stated its concern with “the ability of Mr.
Sams to represent a large number of people . . . who have entered into settlements and
releases when he has not and to represent them when Sorenson asserts an affirmative
2 Sams also provided an online criminal record for “Travis Wayne Sams” obtained from
Sacramento County Superior Court, which indicated that felony charges for assault with a
deadly weapon (Pen. Code, § 245, subd. (a)(1)) and battery causing serious bodily injury
(Pen. Code, § 243, subd. (d)) had been filed on June 2, 2010, and dismissed on June 21,
2010.
4
defense or a motion to dismiss based on those documents.” The court further
commented, “[i]t would be hard to see an individual who had entered into a settlement
and release suing the individual who had been released or the entity. The first thing
they’d have to do is set aside the settlement and release before they could even start
towards a class action. So I agree with [defense counsel] on that part. It would be rare, if
not impossible.”
Defense counsel represented that, since the opposition was filed, others had signed
releases, rendering the number of non-signers less than 10. The court responded that the
“class could exist” but “there would be a strong affirmative defense as to all but ten.”
Sams’ counsel requested a “reasonable opportunity to amend the complaint to add
another class representative.” The court responded, “What would be the basis for me to
do that? What is your game plan, let me put it that way? Would you be naming someone
who had accepted a settlement and signed the release as a representative, class
representative?” Sams’ counsel said, “Based on the court’s tentative ruling and the
discussions we’ve had here today, yes, I believe that would be the case.”
Upon submission by counsel for the parties at the hearing, the trial court stated
that it would adopt the tentative ruling.
DISCUSSION
Standard of Review
“Class actions are authorized under Code of Civil Procedure section 382 whenever
‘the question [in a case] is one of a common or general interest, of many persons, or
when the parties are numerous, and it is impracticable to bring them all before the
court . . . .’ Under California law, a party seeking certification of a class must
demonstrate three things: ‘[1] the existence of an ascertainable and sufficiently numerous
class, [2] a well-defined community of interest, and [3] substantial benefits from
certification that render proceeding as a class superior to the alternatives.’ (Brinker
Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021 (Brinker).) ‘In turn,
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the “community of interest requirement embodies three factors: (1) predominant
common questions of law or fact; (2) class representatives with claims or defenses typical
of the class; and (3) class representatives who can adequately represent the class.” ’
(Fireside Bank v. Superior Court (2007) 40 Cal.4th 1069, 1089 (Fireside).)”
(Hendershot v. Ready to Roll Transportation, Inc. (2014) 228 Cal.App.4th 1213, 1221
(Hendershot); Payton v. CSI Electrical Contractors, Inc. (2018) 27 Cal.App.5th 832,
839-840 (Payton).)
“The question of class certification is essentially procedural and does not involve
the legal or factual merits of the action. [Citation.]” (Knapp v. AT&T Wireless Services,
Inc. (2011) 195 Cal.App.4th 932, 938 (Knapp).)
“On review of a class certification order, an appellate court’s inquiry is narrowly
circumscribed. ‘The decision to certify a class rests squarely within the discretion of the
trial court, and we afford that decision great deference on appeal, reversing only for a
manifest abuse of discretion: “Because trial courts are ideally situated to evaluate the
efficiencies and practicalities of permitting group action, they are afforded great
discretion in granting or denying certification.” [Citation.] A certification order
generally will not be disturbed unless (1) it is unsupported by substantial evidence, (2) it
rests on improper criteria, or (3) it rests on erroneous legal assumptions.’ ” (Brinker
Restaurant Corp. v. Superior Court, supra, 53 Cal.4th at p. 1022.)
“Despite this grant of discretion, appellate review of orders denying class
certification differs from ordinary appellate review. Under ordinary appellate review, we
do not address the trial court’s reasoning and consider only whether the result was
correct. [Citation.] But when denying class certification, the trial court must state its
reasons, and we must review those reasons for correctness. [Citation.]” (Knapp, supra,
195 Cal.App.4th at p. 939.) “ ‘ “In other words, we review only the reasons given by the
trial court for denial of class certification, and ignore any other grounds that might
support denial.” ’ ” (Hendershot, supra, 228 Cal.App.4th at p. 1221.)
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Typicality
As set forth above, the trial court gave only two reasons for denying class
certification. The first was that “Plaintiff’s claims are atypical of the proposed putative
class because Plaintiff did not sign a release agreement, but the class members he seeks to
represent did.”
Sams contends “[t]he releases do not affect the class certification analysis
(including typicality) because they are an affirmative defense and it is improper to
consider the merits of an affirmative defense at the class certification stage.” We agree
that it is improper to consider the merits of an affirmative defense—in this case, the
validity of the releases—on a motion for class certification. (Hendershot, supra,
228 Cal.App.4th at p. 1223; Knapp, supra, 195 Cal.App.4th at p. 938.) Still, the fact that
putative class members have signed releases can affect the typicality of a class
representative who has not.
The typicality requirement exists “ ‘ “to assure that the interest of the named
representative aligns with the interests of the class. [Citation.]” ’ ” (Martinez v. Joe’s
Crab Shack Holdings (2014) 231 Cal.App.4th 362, 375.) The test “ ‘ “ ‘is whether other
members have the same or similar injury, whether the action is based on conduct which is
not unique to the named plaintiffs, and whether other class members have been injured by
the same course of conduct.’ ” ’ ” (Ibid.) Denial of class certification is appropriate
“when a defense unique to the class representative will be a major focus of the litigation
[citation], or when then class representative’s ‘ “interests are antagonistic to or in conflict
with the objectives of those [he or she] purports to represent.” ’ ” (Medrazo v. Honda of
North Hollywood (2008) 166 Cal.App.4th 89, 99.) In determining whether the named
plaintiff’s claims and defenses are typical of the class, the trial court may consider
whether the plaintiff and class members have signed releases. (Hendershot, supra,
228 Cal.App.4th at p. 1223.)
There is no published California case on the subject of whether a named plaintiff
7
who has not signed a release has met the typicality requirement for a class that includes
members who have. “In the absence of California authority concerning class action
issues, ‘ “California courts may look to the Federal Rules of Civil Procedure . . . and to
the federal cases interpreting them [citation].” ’ [Citation.]” (Payton, supra,
27 Cal.App.5th at p. 850, fn. 5.)
According to the weight of federal authority, named plaintiffs who have not signed
releases do not meet the typicality requirement for class members who have. One
prominent example is Melong v. Micronesian Claims Commission (D.C. Cir. 1980)
643 F.2d 10, in which the court upheld denial of class certification where some putative
class members had signed releases but the proposed class representatives had not. The
court observed that “[t]he execution of a release does not conclusively bar prosecution of
the underlying claim. The release itself may be found to be defective and therefore void.
. . . [H]owever, . . . the existence of such releases adds new and significant issues to
actions brought on the underlying claims. When the purported class representative has
not executed a release and need not establish that the release is defective in his individual
case, serious questions are raised concerning the typicality of the class representative’s
claims and the adequacy of his representation of other class members.” (Id. at p. 15.)
The court concluded that the claims of those who executed releases “must be presented
by proper plaintiffs with the proper factual development.” (Id. at p. 16.)
Other federal courts have come to the same conclusion. (See, e.g., Javine v. San
Luis Ambulance Service, Inc. (C.D.Cal. Jan. 13, 2015, No. CV 13-07480 BRO (SSx))
2015 WL 12672090, at p. *11 (Javine) [“Plaintiff’s claims are not typical of the claims of
the putative classes because she has not signed a liability release agreement. In order to
prevail on their claims, the majority of the putative class members who have signed a
release agreement would have to prove either that the agreement is invalid or that it does
not cover the claims at issue here, both of which are issues that Plaintiff lacks standing to
raise”]; Wetzel v. CertainTeed Corp. (W.D.Wash. Mar. 25, 2019, No. C16-1160JLR)
8
2019 WL 3976204, at p. *13 (Wetzel) [typicality requirement not met by plaintiff who
had not signed release because “numerous homeowners in the proposed class have signed
CertainTeed’s release”]; Bond v. Marriott Int’l, Inc. (D.Md. 2014) 296 F.R.D. 403, 408-
409 [“Plaintiff Bond is not typical because he did not execute a release and a number of
other member of the class, including Plaintiff Steigman, did”]; Carlstrom v. DecisionOne
Corp. (D.Mont. 2003) 217 F.R.D. 514, 516 [“Here, some 98 percent of the proposed class
members signed a release in exchange for separation pay. Carlstrom did not.
Carlstrom’s position is plainly not comparable to the vast majority of proposed class
members who signed releases and received payment. Typicality is missing”]; Bublitz v.
E.I. du Pont de Nemours & Co. (S.D.Iowa 2001) 202 F.R.D. 251, 257 [“Courts have been
very reluctant to let class members who have executed waivers or releases to be
represented by someone who had not executed the same”].)
Courts have recognized the serious conflicts that a named plaintiff who has not
signed a release will have with putative class members who have. The latter will need to
show that the release is invalid or does not cover class claims. (Wetzel, supra, 2019 WL
3976204, at p. *13; Javine, supra, 2015 WL 12672090, at p. *11.) But putative class
members may not wish to have their releases invalidated, which would require them to
return the compensation received. (Wetzel, supra, at p. *14; Stafford v. Brink’s, Inc.
(C.D.Cal. Dec. 1, 2015, No. CV-14-01352-MWF (PLAx)) 2015 WL 12699458, at
p. *14.) A named plaintiff who has not signed a release may have little incentive to
demonstrate that the release is ineffective. (Stafford, supra, at p. *13.) And
fundamentally, there are serious concerns whether a named plaintiff like Sams has
standing to challenge the releases at all. (Melong, supra, 643 F.2d at p. 13; Wetzel,
supra, at p. *14; Javine, supra, at p. *10.)
Cases Sams cites coming to the opposite conclusion are in the minority. (See, e.g.,
Nitsch v. Dreamworks Animation SKG Inc. (N.D.Cal. 2016) 315 F.R.D. 270, 284
[“ ‘defenses that may bar recovery for some members of the putative class, but that are
9
not applicable to the class representative do not render a class representative atypical’ ”];
Herrera v. LCS Fin. Servs. Corp. (N.D.Cal. 2011) 274 F.R.D. 666, 681 [“The fact that
some members of a putative class may have signed arbitration agreements or released
claims against a defendant does not bar class certification”].)
These cases ignore or minimize the conflicts outlined above between class
representatives who have not signed releases and the individuals who have. Moreover, in
Korn v. Franchard Corp. (2d Cir. 1972) 456 F.2d. 1206, cited by Sams, the Second
Circuit implied that, if the releases were valid, typicality would not exist. (Id. at p. 1212
[“[Plaintiff’s] demands and her position are not atypical of the unreleased investors’, or
until the releases are sustained of the released investors’ as well”].)
Sams contends that the trial court improperly considered the merits of Sorenson’s
affirmative defense based on the releases, effectively deeming the releases valid. Sams
relies on Hendershot where the appellate court held that the trial court erred in ruling the
class was not sufficiently numerous by excluding putative class members who signed
releases. (Hendershot, supra, 228 Cal.App.4th at p. 1222.) Hendershot observed that the
trial court “essentially ruled that defendant’s affirmative defenses based on the releases
and arbitration agreements had merit, and thereby determined that the majority of
putative class members could not assert claims against defendant in this action.” (Id. at
p. 1223.)
Here, the trial court specifically stated, “I understand that the settlement and
release does not affect numerosity.” When defense counsel offered that the number of
putative class members who did not sign releases might be “less than ten,” the court
responded, “[t]he class could exist, it’s just -- there would be a strong affirmative defense
as to all but ten.” Further, the court stated that it did not look at any of the releases, and
therefore had no basis on which to make a determination that they were valid. Finally,
the court’s comment that “[i]t would be rare, if not impossible” for a class member who
signed a release to pursue class claims does not constitute a determination that the
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releases were valid. The court simply reflected on a significant obstacle for these
individuals that Sams did not face: “The first thing they’d have to do is set aside the
settlement and release before they could even start towards a class action.”
On this record, we do not find that the trial court abused its discretion in
determining that the typicality requirement for class certification was not met.
Adequacy
The trial court’s second ground for denial of certification was “that there are
credibility problems sufficient enough to reject the adequacy of Plaintiff acting as class
representative.” The court did not elucidate the nature of Sams’ credibility problems and
there was no further discussion of this ground at the hearing. However, Sams
acknowledges that the court was referring to his criminal convictions. But Sams argues
that his criminal history was insufficient to disqualify him on adequacy grounds, because
the “two criminal convictions” were “distant in time, . . . not related to the claims in this
case, and do not bear on his honesty regarding the claims in this case.” We conclude the
trial court did not abuse its discretion in finding that Sams was not an adequate class
representative.
“Credibility problems can be an appropriate ground to reject the adequacy of class
representative. [Citation.]” (Payton, supra, 27 Cal.App.5th at p. 846, citing Jaimez v.
Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286, 1308 (Jaimez).) In Payton and Jaimez,
the courts held that proposed class representatives who failed to disclose prior criminal
convictions on employment applications were inadequate because their credibility was in
question. (Payton, supra, at p. 846; Jaimez, supra, at pp. 1307-1308.)
Sams emphasizes that he “candidly” admitted his convictions. However, in
deposition, he could not provide details of his arrest in 2010 and stated incorrectly that he
served six months on the charge. Further, his explanation of his conviction for receiving
stolen property was vague at best. In fact, the details of this arrest in 2010 and his
convictions in 1999 and 2011 did not emerge until Sams’ reply declaration after Sorenson
11
had raised the issue in opposition to the motion for class certification. In that declaration,
Sams’ description of circumstances attempted to cast him in a favorable light, i.e., as a
jealous ex-husband on the false imprisonment conviction in 1999 and an unwitting
recipient of stolen property on the 2011 conviction. As for the 2010 arrest for assault
with a deadly weapon, Sams not only recalled new and different details about that charge,
but he described circumstances—i.e., defending a victim of domestic violence—in which
his action was salutary and the result exoneration. Thus, Sams offered an explanation of
his criminal arrests and convictions, which itself could become “the focus of a credibility
battle.” (Payton, supra, 27 Cal.App.5th at p. 846.)
Moreover, contrary to Sams’ argument, his felony conviction for receiving stolen
property did involve dishonesty and could be offered to impeach his credibility. It is
established that “receiving stolen property necessarily involve[s] moral turpitude.”
(People v. Turner (1990) 50 Cal.3d 668, 705, citing People v. Rodriguez (1986)
177 Cal.App.3d 174.) This is because “a necessary element of the offense of receiving
stolen property is actual knowledge of the stolen character of the property.” (Rodriguez,
supra, at p. 179; see also People v. Gray (2007) 158 Cal.App.4th 635, 641.) In his
declaration, Sams asserted that he did not know the generator was stolen, yet he pled
guilty to the charge.
Conviction of a crime of moral turpitude is relevant to honesty. (People v. Castro
(1985) 38 Cal.3d 301, 315.) A party may be impeached by evidence of a prior conviction
of receiving stolen property, which is relevant to honesty and credibility. (See People v.
Kyllingstad (1978) 85 Cal.App.3d 562, 569 [receiving stolen property “being a larcenous
crime, clearly bore upon defendant’s character traits of honesty and veracity”]; People v.
Lassell (1980) 108 Cal.App.3d 720, 724 [receiving stolen property is “probative on the
issue of credibility”]; People v. Hoze (1987) 195 Cal.App.3d 949, 955 [accord].)
Thus, Sams’ conviction for receiving stolen property could detract from his
credibility. (Payton, supra, 27 Cal.App.5th at p. 846.) And contrary to his argument that
12
this conviction was “remote in time,” “even though old, [it] would be admissible for
impeachment purposes at the discretion of the trial court.” (Id. at pp. 846-847, citing
Evid. Code, § 788.)
We conclude that it was proper exercise of discretion for the trial court to conclude
that the interests of the class would not be served by a representative with criminal
convictions.
Amendment
We conclude the trial court erred in denying Sams a reasonable opportunity to
amend the complaint. The court rejected—essentially without explanation—Sams’
request for leave to amend the complaint to add a class representative who had signed a
release.
The lack of an adequate or typical class representative alone does not justify the
denial of a class certification motion. California has a procedure to protect class claims
where the trial court denies certification on the ground that the named plaintiff is not
adequate or typical of the class. (Fierro v. Landry’s Restaurant Inc. (2019)
32 Cal.App.5th 276, 294, fn. 22 (Fierro).) If “the court concludes that the named
plaintiffs can no longer suitably represent the class, it should at least afford plaintiffs the
opportunity to amend their complaint, to redefine the class, or add new individual
plaintiffs, or both, in order to establish a suitable representative.” (La Sala v. American
Sav. & Loan Assn. (1971) 5 Cal.3d 864, 872; Fierro, supra, at p. 294, fn. 22; see also
Jones v. Farmers Ins. Exchange (2013) 221 Cal.App.4th 986, 999 [“The lack of an
adequate class representative, however, does not justify the denial of the class
certification motion. Instead, the trial court must allow Plaintiffs an opportunity to
amend their complaint to name a suitable class representative”]; Jaimez, supra,
181 Cal.App.4th at p. 1308 [same].)
“This amendment procedure ‘ “prevents a prospective defendant from avoiding a
class action by ‘picking off’ prospective class action plaintiffs one by one, settling each
13
individual claim in an attempt to disqualify the named plaintiff as a class
representative.” ’ ” (Fierro, supra, 32 Cal.App.5th at p. 294, fn. 22, quoting Payton,
supra, 27 Cal.App.5th at p. 848; see also Timlick v. National Enterprise Systems, Inc.
(2019) 35 Cal.App.5th 674, 689-690.) To be sure, this is not a “picking off” case where
the class action defendant seeks to disqualify the named plaintiff by entering into a
settlement with him or her. Here, Sorenson obtained releases for small amounts from
putative class members and opposed certification on the ground that Sams’ claims were
now atypical of these individuals. However, the effect is the same. Sorenson used
release agreements as a tactic to challenge the named plaintiff and prevent certification of
a class action. (See Timlick, supra, at p. 689.) The amendment procedure counters that
tactic.
Sorenson argues that “issue of amending to seek a new class representative was
not properly preserved because the Order is silent as to amendment, and Sams made no
specific objection at oral argument to preserve record.” Not so. At the hearing on the
motion for class certification, counsel for Sams requested a reasonable opportunity to
amend the complaint, the trial court clarified with counsel that the amendment would be
to add a new class representative, and the court did not grant the request when it adopted
the tentative ruling, which was silent on the issue. An oral request to amend a complaint
made at a hearing on a motion for class certification is sufficient to preserve for appellate
review the issue of whether the court abused its discretion in denying the request. (Cf.
Payton, supra, 27 Cal.App.5th at p. 849.) Sams requested an opportunity to amend the
complaint in its reply brief, as well.
Sorenson acknowledges that leave to amend is liberally granted but contends that
“denying a request to amend a complaint may be appropriate when an unreasonable delay
in seeking amendment prejudices defendant.” (See Payton, supra, 27 Cal.App.5th at
p. 849; Jaimez, supra, 181 Cal.App.4th at pp. 1308.) In Payton, the court concluded the
trial court did not abuse its discretion in denying the plaintiff’s request to add or
14
substitute a new class representative. (Payton, supra, at p. 849.) The request was made
after the court denied the plaintiff’s motion for class certification nearly four years after
the case was filed. (Id. at p. 847.) Here, Sams filed a motion for certification just over 13
months after the action was filed and the trial court heard the motion one month later.
(Jaimez, supra, at pp. 1290-1291, 1297 [court should have granted motion to amend to
add new class representatives made just over one year after action was filed].) We find
the timing of Sams’ motion more comparable to that in Jaimez than in Payton.
Moreover, Sorenson also has not identified any prejudice incurred in connection with an
amendment to add a new class representative.
We conclude that the trial court abused its discretion in failing to give Sams a
reasonable opportunity to amend the complaint.
DISPOSITION
The case is remanded to the trial court with directions to allow Sams a reasonable
opportunity to amend the complaint to name new class representatives, to define new
subclasses, or both. The order denying class certification is otherwise affirmed. The
parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
/s/
RAYE, P. J.
We concur:
/s/
BLEASE, J.
/s/
DUARTE, J.
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