Metropolitan News-Enterprise


Wednesday, September 16, 2015


Page 1


Discovery Barred in Case Where There’s No Plaintiff Yet

Judge Admits That a Fit Class Member Might be a ‘Mythical Creature’


By a MetNews Staff Writer


The Third District Court of Appeal declared yesterday that a trial judge erred in granting discovery in a potential class action where a plaintiff who would represent the class has not yet been found and might be as mythical as a unicorn.

Justice Vance Raye wrote the opinion, which was unpublished. He quoted Sacramento Superior Court Judge David Brown as observing that “there are some societally important issues going on here or potentially going on here,” but admitting:

“[I]t 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.”

Charlene Deluca brought the action against Longs Drug Stores California, LLC, which employs her, and CVS Pharmacy, Inc., claiming that both companies automatically fire an employee who is absent for 45 days. That, she asserts, discriminates against persons with disabilities, in violation of the California Fair Employment and Housing Act.

However, Deluca is neither disabled nor has her employment been terminated.

Brown sustained a demurrer based on her lack of standing, gave her 90 days within which to amend the complaint by substituting a plaintiff who does have standing, and, to aid her in finding a plaintiff. granted her discovery of contact information with respect to present employees, as well as persons who worked for either company at any time during 2010-14.

Judge Explains Order

The judge explained:

“There is good cause for the requested discovery on the ground the court has found that Deluca does not state a cause of action and has no standing. The potential privacy interests of the employees in having their contact information released is outweighed by the potential plaintiffs’ interest in obtaining the contact information....Plaintiff Deluca seeks to protect important statutory rights of other potential class members who may be unaware of the defendant’s unwritten ‘automatic termination policy’ and therefore unaware that their statutory rights under the FEHA may be implicated.”

The drug store companies sought a writ, and the appeals court granted it.

Disagrees With Judge

Raye wrote:

“We are hard pressed to explain why the trial court stated it ‘does not find that Deluca or her counsel had no reasonable, good faith belief that she lacked standing when the suit was initiated.’ There is no evidence in the record that Deluca had any reason to believe she was a victim of the alleged termination policy when she filed suit….

“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.”

The jurist (referring to both defendants, collectively, as “CVS”) went on to say:

“Here, CVS employees know whether or not they were terminated and the circumstances surrounding their terminations. These potential class members know if they have a qualified disability, if that disability prevented them from working during a 45-day period, if they requested and were denied a leave as a reasonable accommodation, and if they were terminated for not working during this period. Given this knowledge, the terminated employees can pursue a claim under the FEHA to vindicate their rights and recover monetary damages. In addition, the privacy rights of the putative class members add to the potential for abuse and undercut the benefits of precertification discovery. Deluca’s counsel would inquire as to whether or not a CVS employee is disabled, the nature of the disability, and the circumstances surrounding a termination….[W]e find such requested discovery impinges on the privacy rights of potential class members.”

The case is CVS Pharmacy v. Superior Court, C077622.


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