American Pipe Tolling Does Not Require Precognition

Hildebrandt v. Staples the Office Store LLC, No. B294642 (D2d3 Dec. 4, 2020)

The trial court granted summary judgment on the statute of limitations in this wage and hour case. Plaintiff argued that two prior class actions in which class cert was ultimately denied tolled the statute under the American Pipe doctrine. The trial court disagreed, finding that because class cert was denied on commonality grounds, Plaintiff had no reasonable basis to wait to file sue in reliance on the prior cases.

That’s not really the test, though. So long as Plaintiff can ascertain that she falls within the prior class definition, and so long as she’s bringing more or less the same claims, American Pipe applies. The Court of Appeal addresses Jolly v. Eli Lilly & Co., 44 Cal. 3d 1103 (1988), in which the California Supreme Court generally adopted the American Pipe analysis, while deciding that it didn’t apply to the facts of that case, which was a mass tort. In particular, Jolly held that tolling didn’t apply in because: (a) the class definition was somewhat fail-safe, such that a Plaintiff could not know she was a class member without first having key liability issues decided in her favor; and (b) the class plaintiff did not bring damages claims, which were the crux of Plaintiff’s case. In those circumstances, a plaintiff can’t reasonably rely on the prior class action in deferring her decision to sue. 

But those weren’t the case here. Plaintiff fell within the general class definition and had basically the same claims. Defendant says the exceptions in Jolly nonetheless apply because Plaintiff could not have predicted that her claims were sufficiently common with the named class plaintiffs to know she was in a certifiable class in the prior case. But requiring a predictive exercise like that is contrary to the whole point of American Pipe and Jolly, which is to preserve the utility of the class action device by not requiring any and all potential class members to rush to the courthouse to avoid the limitations period. 

In reaching its result, the court disagreed with Batze v. Safeway, Inc., 10 Cal. App. 5th 440 (2017), which suggested a presumption against tolling when class cert in the prior case is denied on lack commonality. 

Reversed.

California Agrees: Only One Hit on the American Pipe

Montoya v. Ford Motor Co., No. G045752 (D4d3 Mar. 12, 2020)

In 2018’s China Agritech v. Resh, the U.S. Supreme Court held that so-called American Pipe tolling tolls a class member’s statute of limitations only for the time a first filed class action remains pending. An absent plaintiff can’t stack together tolling periods from a bunch of different class actions to achieve an even longer tolling period. So once the first class action is dismissed, class cert denied, or the plaintiff opts out of a certified or settlement class, the plaintiff’s clock restarts without further tolling.

Here, the Court of Appeal adopts the rationale China Agritech as a matter of California state procedural law.

Reversed.

Class Action Tolls Only Individual Claims

Fierro v. Landry’s Restaurant, No. D071904A (D4d1, Feb. 15, 2019)

When this case was first decided last year, I noted that the opinion seemed sideways with the U.S. Supreme Court’s very recent decision in China Agritech. That case held that although under the so-called American Pipe doctrine, a pending class action tolls the statute of limitations for class members’ individual claims, but it does not do so for other class actions. The California Supreme Court granted review and transferred the case back to the 4/1, ordering it to reconsider in light of China Agritech. 

Post-transfer, the Court of Appeal agrees that the rule in China Agritech should also be adopted as a matter of California state class action procedure. So no tolling for the prior class action. The Court, however still can’t tell what’s time barred from the face of the complaint, so it remands for the trial court to deal with that issue. 

In getting there, the Court decides an alternative issue. Apparently, the prior class action was dismissed after a class was certified for failure to bring it to trial within five years under Code of Civil Procedure §§ 583.310 and 583.360. Defendant claims that the current class claims are barred from the res judicata effect of that dismissal. But they aren’t. A dismissal under the five-year rule is not with prejudice and thus not preclusive. Practically, since five years is longer than most statutes of limitations, a plaintiff dismissed under the five-year rule won’t be able to refile. But it is nonetheless theoretically possible, particularly if some post-filing tolling like American Pipe is in the mix.

Reversed.

Too Many Hits on the American Pipe

Fierro v. Landry’s Restaurant Inc., No. D071904 (D4d1 May 14, 2018)

Plaintiff brings a wage an hour class action against his employer. But a prior class action with identical claims had apparently been previously dismissed for failure to bring the case timely to trial under the five-year rule in Code of Civil Procedure §§ 583.310 and 583.360. The trial court granted a demurrer to the class claims on that basis. It did, however, permit plaintiff’s individual claims to proceed because statute of limitations issues raised by Defendant weren’t evident from the face of the complaint. Plaintiff took an appeal under the death knell doctrine.

A Good Reason to Address Class Cert Early

Falk v. Children’s Hospital L.A., No. B251182 (D2d3 Jun 24, 2015)

This case is about so-called American Pipe tolling. See Am. Pipe & Const. Co., v. v. Utah, 414 U.S. 538 (1974). It was developed under federal law, but generally applies in California as well. The gist of the doctrine is that a plaintiff who is within the class definition in a pending class action can rely on that action in deferring to bring her own suit. The statute of limitations on her claims gets tolled during that period. The whole point is to deter every potential class member from feeling like they need to jump in to preserve their rights, which would defeat the whole point of the class action procedure.