I wish the California Supreme Court would either grant review of this opinion or depublish it.
It's a state court class action where the dispute's about certification. There's fairly established law on the federal side that says that the requirements for a "damages" class action (i.e., a (b)(3) suit) are X, Y and Z, whereas the requirements for other types of class actions (e.g., injunctive, prejudice, or declaratory -- under (b)(2) or (b)(3)) are only X and Y.
Plaintiff says that his suit's a declaratory one, and that California should have the same rules with respect to such suits as the federal side. Defendant disagrees, and says that California should impose the full requirements (X, Y and Z) to all class actions instead.
To be clear: there's no statute or rule here. It's all common law. And California courts basically follow federal law in this area.
Plus, just so you know, one of the "extra" requirements -- "Z" (superiority) -- on the federal side comes from the text of (b)(3). Text that California doesn't have. So you can see not only why there's an argument that California should do the same thing that the federal side does, but also that it'd be inappropriate to incorporate a different requirement (Z) in California since (1) the federal side does not even do that, and (2) that requirement comes from text that not only doesn't apply this case, but doesn't even exist in California in the first place.
But the Court of Appeal disagrees. It holds that all of the federal "(b)(3)" requirements (X, Y, and Z) apply to all class actions in California, and thereby departs from the federal rule.
The opinion is super long. But it's not at all complicated. It just says, basically, we've always had those three rules, and seem to apply 'em in all class actions, so we reject plaintiff's argument.
Okay. I understand that.
But this is common law stuff. We can change it. And it's also clearly dicta that we're talking about. I think it's abundantly clear that there's no controlling California Supreme Court precedent that governs the issue as to whether California requires the (b)(3) prerequisites to be met even in (b)(2) -- or, for that matter, (b)(1) -- cases.
So there's flexibility there.
And there's substantial reason to make the rules different. Want proof? How about the fact that the federal system does precisely that. For a reason. Pretty darn good reasons, in my view.
But the Court of Appeal's opinion here doesn't really engage at all with those reasons. Or why we should allegedly have a different rule in California -- a state that generally follows the federal rules on class issues -- on this particular point.
The opinion instead just basically says: "This is the way it is. So there."
That's a fine answer sometimes. Sometimes the Supreme Court has said X, so there's little more that's worthwhile to be said on the subject.
But not here.
This is a legitimately open issue. Reasonable people could disagree. There are real arguments to be said on both sides. And it's not that text or precedent clearly forecloses one side.
So to simply say that The Law Is X, to me, doesn't seem that compelling of a response to this debate.
(And I say that not to minimize the import, or to insult in any way, the members of the panel. I'm sure they believe what the opinion says. Personally, though, I just really don't see it that way. This is an area with far, far more flexibility than I think is evident from the opinion.)
Now, maybe, on the merits of the class action, plaintiff should lose. Or maybe this is a bad vehicle for the California Supreme Court to decide the issue. Or maybe that tribunal would, after (hopefully) deep thought on the issue, would agree with the Court of Appeal's ultimate conclusion.
But to leave things as they are here, with just a skimpy (albeit long) opinion that simply purports to say what the law is, would be suboptimal. Substantially suboptimal, IMHO.
So I'd either grant review, and decide once and for all whether we think the federal side has it right (which tends to be my view) or has it wrong (which I could totally understand as well).
That'd be a super valuable addition to the law.
But, even barring that, I'd depublish this opinion. Because no opinion, in my view, would be better than an opinion that just takes the law as purportedly X when I think the actual law regarding X is much, much more open to dispute and unclear.
