If There Was Never a Real Plaintiff, No Discovery to Find a New One.

CVS Pharmacy, Inc. v. Superior Court, No. C077622 (D3 Oct. 15, 2015)

This case addresses if and when it is appropriate to permit pre-certification discovery to locate absent class members in a so-called “headless” class action. That is, a case where the court has determined that the original named plaintiff lacks standing the pursue the case on her own behalf. 


Generally, pre-certification discovery of absent class members is governed by a balancing test under a 2003 case called Parris v. Superior Court. The test looks to the potential for abuse of the class action procedure, whether and how much the discovery affects the the privacy rights of the class members, and the value of the class action device in vindicating the rights of the class. There are a bunch of cases on this issue, and courts have been been seemingly all over the map about whether to permit the kind of discovery plaintiff seeks here, which the trial court permitted, and the defendant challenges by writ.  

Justice Raye’s opinion here does a nice job of reviewing the extant precedent distilling some generally applicable meta-rules from it. In particular, it finds that discovery would abuse the process when a plaintiff should have known from the get-go that she lacked standing to pursue her claim. Generally speaking, where that’s the case, discovery has been disallowed, since there’s a good chance that the plaintiff is just some class action lawyer’s patsy. (Or sometimes, even the class action lawyer herself!) But when plaintiff didn’t know or have reason to know she lacked standing at the time she filed, courts have been more willing to entertain discovery in order to locate a new lead plaintiff.

In this case, plaintiff is challenging and seeking to enjoin an employment policy at a drugstore, which allegedly terminates employees if they don’t work for forty-five days, whether or not they are disabled. Problem is, plaintiff isn’t disabled, she no longer works for the drug store, and she wasn’t canned as a result of the policy alleged in her complaint. And there’s no reason she shouldn’t have been aware of these facts when she filed her case. Since this is the kind of case where there never really was a “head” at the front of the class, discovery to find a new one shouldn’t have been permitted.

Writ granted.