Opportunity to Conduct Discovery to Support Opposition to Class Action
In on Carabini v. Superior Court (1994), the court granted writ relief overturning the trial court order certifying a class action.
The plaintiffs had filed and properly noticed a motion for class certification, but the parties subsequently agreed to take it off calendar pending the resolution of a motion to disqualify the trial judge.
Some months later, after the disqualification request was resolved, the parties appeared for an evaluation conference.
The trial judge asked about the status of the class certification motion, and, when advised the parties had taken it off calendar, he granted it immediately to avoid further delays.
The defendants sought relief from this court, complaining they did not have proper notice that the class certification motion would be considered at the evaluation conference and thus had no opportunity to file their opposition.
We acknowledged the significance of the class certification decision, in that it "frequently determines whether the case has continuing viability."
Accordingly, we held that due process requires "an opportunity to conduct discovery on class action issues before . . . documents in support of or in opposition to the motion must be filed," and "a full opportunity to brief the issues and present evidence." (Carabini v. Superior Court, supra, 26 Cal. App. 4th at pp. 243-244.)
In Carabini, the defendants lacked an opportunity to conduct discovery to support their opposition before the certification motion was granted.
But plaintiffs here could have controlled the timing of the motion.
While they complained in their reply papers that "reliance on a newly filed summary judgment motion is inherently unfair" and asked that "all references to it should be stricken and disregarded," they never asked for a continuance of the motion to take Kane's deposition and offer no reason why they did not merely take the motion off calendar.
Further, after acquiring the newly-discovered evidence, they failed to ask for reconsideration under Code of Civil Procedure section 1008, subdivision (b).
Because plaintiffs did not take advantage of opportunities to avoid in the trial court the problem about which they now complain on appeal, they have waived any claim of a due process violation.