Metropolitan News-Enterprise


Friday, October 16, 2015


Page 1


C.A. Orders Publication of Opinion in Plaintiffless Case


By a MetNews Staff Writer


The Third District Court of Appeal yesterday ordered publication of its Sept. 15 opinion disallowing discovery in a potential class action in a case where there’s no plaintiff.

The case—reported on in the Sept. 16 issue of the MetNews—is CVS Pharmacy v. Superior Court, C077622.

Justice Vance Raye wrote the opinion in a case in which a demurrer was sustained on the ground that the woman who brought the action had no standing. She claimed that her employer, Longs Drug Stores California, LLC, as well as CVS Pharmacy, Inc. (which owns Longs), violate the California Fair Employment and Housing Act by automatically firing any employee who is absent for 45 days.

She hadn’t been fired.

The opinion quotes Sacramento Superior Court Judge David Brown—who ordered discovery so that a proper plaintiff might be located—as observing:

“[I]t seems to me that there are some societally important issues going on here or potentially going on here. But it may well be that plaintiff’s hunt for an appropriate class plaintiff is .a magical unicorn. It’s a mythical creature that does not exist. We don’t know.”

Raye wrote:

“The potential for abuse of the class action procedure is self-evident where the only named plaintiff has never been a member of the class. Here we find this potential for abuse far outweighs any conceivable benefit to the class.”

He added that the lawyer who wants to represent a plaintiff “would inquire as to whether or not a CVS employee is disabled, the nature of the disability, and the circumstances surrounding a termination. The jurist declared:

“[W]e find such requested discovery impinges on the privacy rights of potential class members.”

CVS made the request for publication.


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