Popping Affirmative Defenses Without Adequate Notice Surprised Plaintiffs
The employer here tried to gut plaintiff’s efforts to certify a class of 53 individuals in a wage dispute by producing evidence that “44 of those individuals had settled their claims or agreed to arbitrate their claims against the defendant.” The employer was successful in the trial court, because the trial judge denied certification on the ground that the putative class members were not numerous enough to be certified as a class. Plaintiffs appealed. Hendershot v. Ready to Roll Transportation, Inc., B247730 (2/3 Aug. 14, 2014) (Croskey, Klein, Aldrich).
The order was reversed on three grounds.
First, the court’s analysis of the “numerosity” factor was incorrect. There is no hard and fast rule on numerosity, and the trial court concluded that nine members was not numerous enough, without adequate explanation.
Second, by “essentially” ruling that the defendant’s affirmative defenses based on releases and arbitration agreements had merit, the trial court improperly considered the merits of the affirmative defenses – something it should not have done at the certification stage. One problem with this was that “these agreements did not require that the parties arbitrate their disputes until a party requested arbitration” – and defendant had not stated whether it would request arbitration. Fn. 8.
Third – and perhaps this is what bothered the Court of Appeal most – there was a lack of proper notice, because the releases and arbitration agreements were sprung on plaintiffs late. “The plaintiffs now argue that the assertion of these defenses took them by surprise and prejudiced them,” explained the Court of Appeal, adding: “It clearly did.” One senses a disapproval of sharp practices at work here.
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