Non-class-member plaintiff in “headless” class action not entitled to precertification discovery absent any evidence they had good faith belief they belonged to the class

A plaintiff seeking injunctive relief on behalf of a class to which they do not belong is not entitled to precertification discovery in the absence of evidence they ever held a reasonable, good faith belief they were a class member. In this case, a plaintiff brought a class action against a drug store, alleging that a termination policy was discriminatory against disabled workers. However, the plaintiff was not disabled, nor had she been terminated under this policy. The trial court dismissed the plaintiff for lack of standing, but granted leave to amend to find a substitute plaintiff and granted the plaintiff’s motion to compel precertification discovery of the names and contact information of current and former employees of the drug store. The Third Appellate District reversed the discovery order, finding no evidence that the plaintiff ever held a reasonable, good faith belief that she had standing, and holding that “[t]he potential for abuse of the class action procedure is self-evident where the only named plaintiff has never been a member of the class.” The court further held that the plaintiff’s precertification discovery—which would reveal to the plaintiff a potential class member’s disability status, the nature of their disability, and the circumstances surrounding their termination—would impinge on the privacy rights of the potential class members, particularly since a potential class member 1) would know if they are disabled and if they were terminated under the policy, and 2) could pursue a claim under the Fair Employment and Housing Act on their own. [CVS Pharmacy, Inc. v. Superior Court (Deluca), (Cal. Ct. App. 2015) 14 C.D.O.S. 11305]

Categories: Legal Developments