As to Fierro's individual claims, the trial court overruled the demurrer, concluding that the statute of limitations defense did not appear affirmatively on the face of the complaint. As to the class claims, the trial court sustained the demurrer without leave to amend on the basis that a prior class action with identical class claims against Landry's Restaurants had been dismissed for failure to bring the case to trial in five years as required by Code of Civil Procedure
China Agritech , supra , --- U.S. ----,
As we explain, the superior court's stated basis for sustaining the demurrer and dismissing the class claims is erroneous. As we further explain, in determining whether the statutes of limitations bar Fierro's class claims, we will conclude that there is no basis on which to apply equitable (or any other form of) tolling. Although that determination will result in at least some of the class's claims being time-barred, on the present record, we cannot say that all of the class's claims are untimely. Thus, we will reverse the order sustaining Fierro's demurrer without leave to amend and remand for further proceedings in which the trial court can decide, on a more developed record, issues related to class certification and/or timeliness of class claims.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In this appeal following the sustaining of a demurrer, we assume the truth
In the present case, without identifying any specific document, the trial court took judicial notice "of the documents pertaining to the matter known
We take judicial notice of the same Martinez documents that were judicially noticed by the trial court.
A. The Martinez Action
In September 2007, Roberto Martinez filed the Martinez action, seeking to represent a class of salaried managerial employees who worked at Joe's Crab Shack restaurants in California. In three causes of action, Martinez alleged claims for: overtime pay on the basis that class members had been misclassified as exempt employees; and violations of law or regulations related to meal and rest periods and to wage statements. Martinez identified the original defendant as Joe's Crab Shack, Inc., and in a March 2008 amendment substituted "Landry's Restaurants, Inc.," for Doe 2.
In an October 2008 first amended complaint, Martinez, individually and on behalf of a class of unnamed members, asserted six employment-related causes of action against Joe's Crab Shack, Inc.
In March 2010, the Martinez trial court denied without prejudice Martinez's motion for class certification on the ground that Martinez was not an adequate class representative. Martinez did not appeal that order.
In a November 2010 third amended complaint, the court allowed Martinez, Saldana, and Kauffman to add Craig Eriksen and Chanel Rankin-Stephens as named plaintiffs and putative class representatives against defendant Joe's Crab Shack, Inc. By the time of the plaintiffs' motion to certify the class in June 2011, Kauffman was no longer a plaintiff, and the defendants included Crab Addison, Inc., Ignite Restaurant Group, Inc., and Landry's Restaurants, Inc.
Martinez, Saldana, Eriksen, and Rankin-Stephens moved to certify a plaintiff class consisting of " '[a]ll persons employed by Defendants in California as a salaried restaurant employee in a Joe's Crab Shack restaurant at any time since September 7, 2003.' " In May 2012, the Martinez court denied the motion, ruling that the plaintiffs had failed to establish: that their claims were typical of the class; that they could adequately represent the class; that common questions predominated the claims; and that a class action was the superior means of resolving the litigation.
The Martinez plaintiffs appealed, and in November 2014 the Court of Appeal reversed the order denying class certification. ( Martinez v. Joe's Crab Shack Holdings (2014)
By judgment filed in August 2016, the Martinez court dismissed with prejudice all the claims in the Martinez action and awarded costs to the three named defendants.
B. Fierro's Present Action
Within days of the dismissal of Martinez , Fierro filed the present action on August 29, 2016. Fierro asserts individual and class claims based on the underlying allegation that Landry's Restaurants "improperly and illegally mis[ ]classified" Fierro and the members of the class "as 'exempt' managerial/executive employees when, in fact, they were 'non-exempt' non-managerial employees according to California law." According to Fierro, under
Fierro alleges that he worked for Landry's Restaurants as a salaried restaurant employee within four years prior to the filing of the Martinez action.
"The filing of [the Martinez action] on September 7, 2007[,] has tolled the statute of limitations as to [Fierro] and the class he seeks to represent . The class period covered by this Complaint based on the tolling of the statute by [ Martinez ] is September 7, 2003[,] to the present." (Italics added.)
Landry's Restaurants describes the present action as Fierro's attempt "to revive the same class claims from Martinez covering the exact same class period."
Disagreeing with Fierro's allegation regarding the tolling of the applicable statutes of limitations, Landry's Restaurants demurred to each cause of action in Fierro's complaint on the basis that each "is barred by the statute of limitations."
First, Landry's Restaurants acknowledges that the filing of a class action tolls the running of the applicable statutes of limitations as to the individual claims of all putative class members until class certification is denied-after which time all unnamed class members may either seek to intervene in the surviving individual case or file a new action. Our state Supreme Court has summarized this tolling principle as follows: "[U]nder limited circumstances, if class certification is denied, the statute of limitations is tolled from the time of commencement of the suit to the time of denial of certification for all purported members of the class who either make timely motions to intervene in the surviving individual action ( [ American Pipe & Construction Co. v. Utah (1974)
Second, according to Landry's Restaurants, regardless of the application of American Pipe tolling, the class claims fail for another reason. Landry's Restaurants argues that, because the Martinez action-including the class claims-was dismissed for failure to bring the action to trial within five years under section 538.310 et seq., the class claims cannot be resurrected in a new action. Landry's Restaurants contends that American Pipe tolling is an equitable doctrine that does not affect the express statutory language which makes a dismissal under section 538.360 "mandatory and ... not subject to extension, excuse, or exception except as expressly provided by statute," upon the requisite showing. (§ 538.360, subd. (b).)
Fierro timely appealed from the order overruling the demurrer as to Fierro's individual claims and sustaining the demurrer without leave to amend as to Fierro's class claims. Under the death knell doctrine, we have jurisdiction to review that portion of the order sustaining the demurrer as to the class claims. (See fn. 4, ante .)
II.
DISCUSSION
The sole issue on appeal is whether the trial court erred in sustaining without leave to amend the class claims in Fierro's complaint.
After assuming the truth of the allegations in the complaint, facts that can be inferred from those pleaded, and judicially noticed matters ( Schifando , supra ,
As we explain, the trial court erred in applying the section 583.360 dismissal of the Martinez action as a bar to Fierro's class claims. However, as we further explain, nothing in the Martinez action (or otherwise) tolled the statutes of limitations on Fierro's class claims. Thus, the only class claims that will be timely are those that accrued within the applicable limitation periods preceding the August 2016 filing of Fierro's complaint . Since the limited facts we may consider on appeal do not disclose whether some or all of the claims in any one cause of action may be time-barred, the trial court erred in sustaining without leave to amend the demurrer as to each cause of action; and we will reverse the trial court's order on this basis.
A. The Dismissal of the Martinez Action Is Not a Basis on Which to Have Dismissed the Class Claims in the Present Action
The trial court ruled that, because the Martinez court dismissed the same class claims as Fierro alleges in the present action pursuant to section 583.360 (for failure to have brought the action to trial within five years, in violation of § 583.310 et seq. ), the class claims in the present action are barred. As proffered by Landry's Restaurants and accepted by the trial court, the reasoning behind such a ruling is that the equitable principles associated with the application of American Pipe tolling cannot revive claims that were dismissed under a statute that does not allow for exceptions unless "expressly provided by statute ." ( § 583.360, subd. (b), italics added ["The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute."].)
Neither the facts nor the law supports the trial court's ruling.
Factually, the record does not suggest-let alone establish by properly pleaded factual allegations or matters of which judicial notice has been taken-that the Martinez action was dismissed under section 583.360. In the trial court and on appeal, both Landry's Restaurants and Fierro state that the failure to prosecute was the basis of the dismissal in Martinez . However, in support of this statement on appeal, both Landry's Restaurants and Fierro cite exclusively to the judgment in the Martinez action which provides only that the claims were "dismissed with prejudice"; there is no mention of the basis of the dismissal.
That said, Fierro, Landry's Restaurants, and the trial court all have proceeded, both in the trial court and now on appeal, with the understanding that the Martinez action was dismissed under section 583.360 for failure to have brought the action to trial within the statutorily required period. In addition, in August 2018-which was after a year and a half after the trial court sustained Landry's Restaurants's demurrer and months after our original (now vacated) opinion in this appeal-the Court of Appeal affirmed the dismissal of the judgment in the Martinez action under section 583.310 et seq. ( Martinez v. Landry's Restaurants, Inc. , supra ,
A "judgment dismissing the prior action for want of prosecution is not one upon the merits [citations] and it does not bar a subsequent action upon the same cause." ( Lord v. Garland (1946)
Because we review the ruling of the trial court, not the reasons therefor ( Rappleyea , supra , 8 Cal.4th at pp. 980-981,
In the complaint, Fierro alleges that the filing of the Martinez action on September 7, 2007, "has tolled the statute of limitations as to [Fierro] and the class he seeks to represent. The class period covered by this Complaint based on the tolling of the statute by [the Martinez action] is September 7, 2003[,] to the present." Without tolling, according to Landry's Restaurants, the applicable statute of limitations bars each of the class claims Fierro alleges in his complaint.
Before we determine whether application of the American Pipe tolling doctrine saves the class claims, we summarize the relevant events and the specific dates on which they occurred, as follows:
• September 7, 2007-Martinez files the Martinez action;
• March 12, 2010-the Martinez trial court denies without prejudice Martinez's motion to certify the putative class on the basis that he is not an adequate class representative;
• March 12, 2010-Martinez files a second amended complaint adding two new putative class representatives, Saldana and Kauffman;17
• November 23, 2010-Martinez, Saldana, and Kauffman file a third amended complaint adding two named putative class representatives, Eriksen and Rankel-Stephens; 18
• May 23, 2012-the Martinez court denies the plaintiffs' motion to certify the class;
• July 13, 2012-the named plaintiffs in Martinez appeal from the order denying their motion to certify the class;
• November 10, 2014-the Court of Appeal reverses the order denying class certification and directs the Martinez court to reconsider whether to certify the class under a different standard;
• August 24, 2016-the Martinez court enters a judgment dismissing the action with prejudice;
• August 29, 2016-Fierro files the present action; and
• August 1, 2018-the Court of Appeal affirms the dismissal of judgment in the Martinez action.
We have assumed that the applicable statutes of limitations for the claims in Fierro's complaint are between one and four years. (See fn. 11, ante .)
Landry's Restaurants's argument on appeal is straightforward: At no time have the statutes of limitations on Fierro's class claims been tolled, and Fierro filed the present action on August 29, 2016.
Landry's Restaurants acknowledges that, "under limited circumstances, if class certification is denied, the statute of limitations is tolled from the time of commencement of the suit to the time of denial of certification for all purported members of
We approach our analysis with certain directives from our state Supreme Court. Initially, in the absence of controlling state authority, we look to the federal courts' application of class action law "to ensure fairness in the resolution of class action suits." ( Jolly , supra ,
At the time Falk was decided, the federal Courts of Appeals were divided over whether American Pipe tolling saved otherwise untimely successive class claims. ( China Agritech , supra , --- U.S. ----, 138 S.Ct. at pp. 1805-1806 [cases collected].) As relevant to the present appeal, the Third Circuit and Ninth Circuits had applied American Pipe tolling to save such claims in certain circumstances. ( Yang v. Odom (3d Cir. 2004)
In February 2011, at the start of the limitation period, plaintiff Dean filed a securities class action against China Agritech and others. ( China Agritech , supra , --- U.S. ----,
After the expiration of the applicable statute of limitations, in June 2014 plaintiff Resh filed a third securities class action against China Agritech and
In its opinion, the Court ruled that " American Pipe does not permit the maintenance of a follow-on class action past expiration of the statute of limitations."
We are persuaded that the efficiency favoring early assertion of competing class representative claims in the federal system ( China Agritech , supra , --- U.S. ----,
California trial court judges-who are charged with "acting in a fiduciary capacity as guardian of the rights of absentee class members" ( Luckey v. Superior Court (2014)
Moreover, allowing the tolling of statutes of limitations of class claims (as encouraged by Fierro) will result in theoretically endless tolling so long as a new named plaintiff is available to promptly file a new class action complaint each time class certification is denied. Nothing under California law suggests such an exception to the application of a statute of limitations for a class claim.
Statutes of limitations, which are the result of legislation, " ' "represent a public policy about the privilege to litigate." ' " ( Grell v. Laci Le Beau Corp. (1999)
We acknowledge that, by disallowing American Pipe tolling to class claims, there may be an increase in class action filings with its related impact on court workload. A putative class member in one action who wants to preserve the ability to present the pending claims on behalf of a class must now file a new class action prior to the expiration of the applicable statutes of limitations, even if there has been no final determination in the initial action whether the class claims will proceed. However, given trial judges' ingenuity and creativity and the tools available (e.g., fn. 21, ante ), we are confident that trial courts will continue to be " 'flexib[le]' " and " 'procedurally innovative' ... in managing class actions" as directed by our Supreme Court. ( Sav-On Drug Stores, Inc. v. Superior Court (2004)
Fierro relies on Falk , supra ,
The Court of Appeal reversed. Disagreeing with the trial court's reasoning, the appellate court concluded that where, in the initial class action, class certification was neither denied on reasons that would be inapplicable to a subsequent action (e.g., inadequate class representative) nor addressed at all (e.g., the present case), " American Pipe tolling should apply." ( Falk , supra ,
Notably, in reaching its conclusions in China Agritech , supra , --- U.S. ----,
C. Conclusion
There is no controlling California state authority with regard to whether American Pipe tolling applies to successive class (as contrasted with individual ) claims. Despite certain differences in state and federal class action procedures, we conclude that applying the rule of law established China Agritech , supra , --- U.S. ----,
In the event a plaintiff class is not certified, the pendency of the putative class's claim does not toll the applicable statute of limitations to the same class claim alleged in a later action. Thus, upon denial of class certification in an action, a putative class member may not commence the same class claim in a new action beyond the time allowed by the limitation period applicable to the class claim. As in federal court, in California, " American Pipe [, supra ,
The application of this rule to the putative class that Fierro alleges in his complaint likely will result in some of the absent class members' claims being time-barred.
Accordingly, even though we hold that American Pipe tolling does not apply to Fierro's class claims, this holding does not provide a basis on which to affirm the trial
III. DISPOSITION
That portion of the trial court's order sustaining Landry's Restaurants's demurrer without leave to amend as to Fierro's class claims is reversed, and on remand the court is instructed to enter an order overruling that portion of Landry's Restaurants's demurrer directed to the class claims. The parties shall bear their respective costs on appeal. ( Cal. Rules of Court, rule 8.278(a)(5).)
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.
Notes
The complaint identifies "Landry's Restaurants Inc." as the sole named defendant. The demurrer that resulted in the order on appeal was filed on behalf of defendant "Landry's, Inc., formerly known as Landry's Restaurants, Inc." ("Landry's Restaurants").
Further unidentified statutory references are to the Code of Civil Procedure.
An action "shall be brought to trial within five years after the action is commenced" (§ 583.310 ); if not, then the court "shall" dismiss the action, either on its own motion or on the motion of the opposing party, after notice to the parties (§ 583.360, subd. (a) ).
Generally, the right to appeal in California is governed by the "one final judgment" rule, pursuant to which an appeal may be taken only from a final judgment in the entire action. (In re Baycol Cases I and II (2011)
In summarizing the factual and procedural background, both parties failed to support numerous factual assertions with citations, or at times accurate citations, to the record on appeal as required by California Rules of Court, rule 8.204(a)(1)(C). Our independent review of the record on appeal has not helped in finding support for some basic and many extraneous facts contained in the parties' briefs. Absent a party's accurate record reference or our independent verification, we have not considered the party's factual recitation. (Rybolt v. Riley (2018)
We take judicial notice of the existence of the documents, not the truth of the matters asserted therein. (Lindsey v. Conteh (2017)
For ease of reading, we will not use specific dates for the various events. To the extent certain dates are potentially outcome-determinative for our analysis of Landry's Restaurants's statute of limitations argument on appeal, we will include the relevant specific dates in the discussion of tolling at part II.B., post .
Neither the parties, the appellant's appendix, nor the judicially noticed documents tells us what happened to named plaintiff Kauffman or named defendant Joe's Crab Shack, Inc., or how Crab Addison, Inc., Ignite Restaurant Group, Inc., or Landry's Restaurants, Inc. became defendants.
Fierro tells us that the "Martinez trial court never got to the issue of whether class certification was appropriate"; i.e., "while the parties were preparing for class certification, the Martinez trial court dismissed the action for failure to bring the action to trial within five years after commencement pursuant to ... § 583.310 [ ] et seq." Landry's Restaurants tells us that "[n]o class was ever certified, and the defendants in the Martinez action eventually filed a motion to dismiss the case on the grounds that the action was not brought to trial within five years after commencement." The parties have not provided record references for these statements, and our independent review of the record has not confirmed these statements; thus, we do not consider them. (See fn. 5, ante .)
Landry's Restaurants tells us that Fierro "concedes within his Complaint that he did not work after September 7, 2007," citing page 6 of the appellant's appendix. Page 6 of the appendix is page 2 of Fierro's complaint; and since it contains no such concession, we do not consider Landry's Restaurants's unsupported statement. (See fn. 5, ante .)
Landry's Restaurants tells us that the statutes of limitations on Fierro's claims are one, three, or four years, depending on the specific claim. Fierro does not argue otherwise. Accordingly, we accept for purposes of this appeal, without deciding, that the applicable statutes of limitations for the class claims in Fierro's complaint are between one and four years.
The court expressly limited its ruling on the statute of limitations defense to its order on Landry's Restaurants's demurrer; i.e., the ruling was not a final determination on the merits of the defense.
The court denied as moot Landry's Restaurants's motion to strike.
In full, the judgment in the Martinez action provides: "IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the claims in this action of Plaintiffs Roberto Martinez, Lisa Saldana, Craig Eriksen and Chanel Rankin-Stephens, and each of them, are dismissed with prejudice, and that Plaintiffs shall take nothing by their complaint. [¶] Defendants Crab Addison, Inc. (erroneously identified as 'Joe's Crab Shack'), Ignite Restaurant Group, Inc. (formerly known as 'Joe's Crab Shack Holdings, Inc.'), and Landry's Restaurants, Inc. are awarded costs against Plaintiffs costs of $______." (Sic. )
In support of this ruling, Hardy cited Lord , supra ,
In an argument related to whether the judgment in the Martinez action barred Fierro's class claims, Fierro suggests that if the judgment had such a preclusive effect, he would be denied due process on the basis that he has "the right ... to bring a class action under California law." However, the authority Fierro cites does not support his suggestion. He argues that "group litigation and the class action procedure implicate the protections afforded by the due process clauses of the 5th and 14th Amendments to the U.S. Constitution," citing rule 23 of the Federal Rules of Civil Procedure (28 U.S.C.) and federal authorities that discuss the due process rights of unnamed class members to be adequately represented and to receive notice and an opportunity to opt out of a certified class. Neither the cited authorities nor our independent research has disclosed a due process right to bring a class action under California law, and we express no opinion on such a right under federal law.
Since the first and second amended complaints contain the same causes of action, a reasonable inference is that Martinez added the two additional plaintiffs in an effort to proffer adequate class representatives.
Since the second and third amended complaints contain the same causes of action, a reasonable inference is that Martinez, Saldana, and Kauffman added the two plaintiffs in an effort to proffer adequate class representatives.
In addition, at the time, the Sixth Circuit also applied American Pipe tolling to successive class actions. (Phipps v. Wal-Mart Stores, Inc. (6th Cir. 2015)
While nonexhaustive, some of the procedural differences between federal and state court include:
• In federal court, the denial of class certification is an interlocutory order, not reviewable as of right until a final judgment (Microsoft Corp. v. Baker (2017) --- U.S. ----,, 1706], 137 S.Ct. 1702 ) or discretionary interlocutory appeal (Fed. Rules Civ. Proc., rule 23(f), U.S.C.); whereas, in California, the death knell doctrine allows an immediate appeal of the trial court's denial of class certification (or dismissal of class claims) (Baycol , supra , 198 L.Ed.2d 132 51 Cal.4th at p. 757 ,, 122 Cal.Rptr.3d 153 ; see fn. 4, ante ). 248 P.3d 681
• For purposes of res judicata (claim preclusion) or collateral estoppel (issue preclusion), in federal court, an order denying class certification is final unless reversed on appeal or modified or set aside by the issuing court (see Martin v. Martin (1970), 761, 2 Cal.3d 752 , 87 Cal.Rptr. 526 ); whereas, in California, while an appeal is pending (or the time to appeal has not yet expired), an order denying class certification is not final (see Pellissier v. Title Guarantee & Trust Co. (1929) 470 P.2d 662 , 184, 208 Cal. 172 ). 280 P. 947
These available procedures include, but are not limited to: sections 382 (class actions), 403 (motion to transfer for coordination), 404-404.9 (coordination), and 1048 (consolidation); and California Rules of Court, rules 3.300 (related cases), 3.350 (consolidated cases), 3.400-3.403 (complex cases), 3.500 (coordination of noncomplex actions), 3.501-3.550 (coordination of complex actions), 3.750-3.751 (complex cases), and 3.760-3.771 (class actions). Trial courts' application of these tools can ensure that efficiency and economy prevail in the event of the filing of multiple class actions prior to the expiration of an applicable statute of limitations; e.g., successive class actions can be stayed, consolidated, or coordinated as necessary. (Cf. China Agritech , supra , --- U.S. ----,
California already has in place a procedure to protect class claims where the trial court denies certification on the basis that the named plaintiffs are not adequate class representatives. Under such circumstances, statutes of limitations need not be tolled and a new action need not be filed, because if new named plaintiffs are available, the court "should at least afford plaintiffs the opportunity to amend their complaint ... to add new individual plaintiffs ... in order to establish a suitable representative." (La Sala v. American Sav. & Loan Assn. (1971)
We recognize that wage and hour claims are "eminently suited for class treatment" (Brinker Restaurant Corp. v. Superior Court (2012)
In his initial briefing on appeal (which was prior to the Supreme Court's opinion in China Agritech , supra , --- U.S. ----,
In fact, in deciding Yang , the Third Circuit also had relied on the Ninth Circuit's opinion in Catholic Social Services , supra ,
For example, as currently alleged by Fierro, the putative class could include an employee whose claim of a Labor Code violation occurred and accrued more than 13 years before Fierro filed his complaint.
For example, as currently alleged by Fierro, the putative class could include an employee whose claims of a Labor Code violation occurred and accrued a day before Fierro filed his complaint.