Demurrers to Class Allegations

Code of Civil Procedure section 382 authorizes class action suits in California “when the question is one of a common or general interest . . . or when the parties are numerous, and it is impracticable to bring them all before the court.”  See Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470 (quoting statute).  A “common or general interest” is established when: (1) there are questions of law or fact common to the class that are substantially similar and predominate over the questions affecting the individual members; (2) the claims of the representatives are typical of the claims or defenses of the class; (3) and the class representatives are able to fairly and adequately protect the interests of the class.  Civil Code § 1781; Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1806; Richmond v. Dart Industries, Inc., supra, 29 Cal.3d at 470.  Wage and hour cases “routinely proceed as class actions because they usually involve a single set of facts applicable to all members and one question of law common to class members.”  Gutierrez v. California Commerce Club, Inc. (2010) 187 Cal.App.4th 969 (citing Tarkington v. California Unemployment Ins. Appeals Bd. (2009) 172 Cal.App.4th 1494 and Prince v. CLS Transp., Inc. (2004) 118 Cal.App.4th 1320) (internal quotations omitted). 

“A demurrer to class allegations may be sustained without leave to amend only if it is clear there is no reasonable possibility that the plaintiffs could establish a community of interest among the potential class members and that individual issues predominate over common questions of law and fact.”  Gutierrez, supra, 118 Cal.App.4th at 975 (citing Blakemore v. Superior Court (2005) 129 Cal.App.4th 36, 53) (internal quotations omitted).  “If there is a reasonable possibility the plaintiffs can plead a prima facie community of interest among class members, the preferred course is to defer decision on the propriety of the class action until an evidentiary hearing has been held on the appropriateness of class litigation.”  Id.  “Judicial policy in California has long discouraged trial courts from determining class sufficiency at the pleading stage and directed that this issue be determined by a motion for class certification.  In order to effect this judicial policy, the California Supreme Court has mandated that a candidate complaint for class action consideration, if at all possible, be allowed to survive the pleading stages of litigation.”  Id. (citing Tarkington, supra, 172 Cal.App.4th at 1510).

“The wisdom of permitting the action to survive a demurrer is elementary.  Class action litigation is proper whenever it may be determined that it is more beneficial to the litigants and to the judicial process to try a suit in one action rather than in several actions.  It is clear that the more intimate the judge becomes with the character of the action, the more intelligently he may make the determination.  If the judicial machinery encourages the decision to be made at the pleading stages and the judge decides against class litigation, he divests the court of the power to later alter that decision.  Therefore, because the sustaining of demurrers without leave to amend represents the earliest possible determination of the propriety of class action litigation, it should be looked upon with disfavor.”  Id.  “[O]nly in mass tort actions (or other actions equally unsuited to class action treatment) should class suitability be determined at the pleading stage.  In other cases, particularly those involving wage and hour claims such as the instant action, class suitability should not be determined by demurrer.”  Id. (citing Prince, supra, 118 Cal.App.4th at 1325) (internal quotations omitted).