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.
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