B216004 (Cal. App. Aug. 21, 2012). Affirming the trial court’s denial of class certification under California CCP § 382 for hourly workers at Chipotle restaurants, the appellate court opined that plaintiff’s claims for missed meal and rest breaks were not suitable for class treatment. Chipotle preemptively moved to deny class certification, contending that it had provided breaks as required by California law.

The size of the facilities ranged as well, from single employees at one site, to large groups at others.Most of the plaintiffs’ arguments against decertification rested on the premise that Dukes was decided under Federal Rule 23, while the court’s prior certification decision rested on California Civil Procedure Section 382. The court, however, found that the two were analogous and that several California courts had looked to Rule 23 for guidance on state law class action issues.

In a non-precedential opinion, a panel of the Ninth Circuit read Wal-Mart as adopting the “non-incidental” test, and district courts have indicated the same, although few have specifically addressed the issue.11 5. Application of Wal-Mart in State Court Remains Uncertain California Code of Civil Procedure Section 382 – which governs class actions in state court – is not modeled on Federal Rule 23 but similarly asks whether a “community of interest” exists and requires review of the merits where necessary. See Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004, 1023-24 (2012) (citing Wal-Mart).

Haro v. City of Rosemead, 174 Cal. App. 4th 1067 (2009)Randy Haro and Robert Ballin filed an action against the city of Rosemead alleging a violation of the federal Fair Labor Standards Act (“FLSA”). The trial court denied plaintiffs’ motion to have the class certified pursuant to Cal. Code Civ. Proc. § 382 (the California class action statute) on the ground that an FLSA collective action (which requires members of the collective action to affirmatively opt-in) cannot be prosecuted as a class action under California law (which requires class members to opt-out). The Court of Appeal dismissed the appeal from the trial court’s orders denying class certification and denying leave to amend the complaint, holding that “an FLSA action has to be litigated according to rules that are specifically applicable to these actions and if litigants do not like these rules, they should not file under the FLSA.”

Employees frequently pursue claims for misclassification as an exempt employee, unpaid overtime, and missed meal and rest periods through putative class actions. Not surprisingly, the focal point of much of this litigation is on the question of whether the action can properly proceed on a class basis based on California Code of Civil Procedure section 382 (i.e., whether common questions of law and fact predominate and whether the class is ascertainable). Given the mounting difficulties plaintiffs have had in obtaining class certification, however, plaintiffs and their attorneys have been feverishly searching for alternative avenues to pursue these claims without the burden of having to pass through the class certification gauntlet.Arias v. Superior Court is an example of one such approach, which has now received a partial stamp of approval by the California Supreme Court.

Following the passage of Proposition 64 on November 2, 2004, in order to bring a representative claim under the unfair competition law (“UCL”), a plaintiff must meet the following standing requirements: (1) establish that he or she “has suffered injury in fact and has lost money or property as a result of such unfair competition” and (2) comply with the class action requirements as set forth in California Code of Civil Procedure Section 382. Bus. & Prof. Code §§ 17203, 17204 and 17535.