Salgado v. The Daily Breeze CA2/2 ( 2022 )

Filed 12/13/22 Salgado v. The Daily Breeze CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
IGNACIO SALGADO, B309434
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC458074)
v.
THE DAILY BREEZE et al.,
Defendants and
Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, Barbara A. Meiers, Judge. Affirmed.
Trush Law Office, James M. Trush; Marlin & Saltzman,
Stanley D. Saltzman, Cody R. Kennedy, Joel M. Gordon; Law
Offices of Timothy Donahue and Timothy J. Donahue for Plaintiff
and Appellant.
Perkins Coie, Jill L. Ripke and Lauren M. Kulpa for
Defendants and Respondents.
This appeal is taken from an order granting a motion to
dismiss class claims in an action where the class has lacked a
living class representative for seven years. The class was
initially certified in 2014 under the case caption Ignacio Salgado,
Individually and on Behalf of Other Members of the General
Public Similarly Situated v. The Daily Breeze et al. (Super. Ct.
L.A. County, 2015, No. BC458074). Defendants in the matter
below, and respondents on appeal, are MediaNews Group, Inc.
(MNG), Torrance Holdings, LLC, doing business as the Daily
Breeze (Daily Breeze), and Long Beach Publishing, LLC, doing
business as Long Beach Press Telegram (Press Telegram)
(collectively respondents). The lawsuit asserted a claim for
reimbursement of business expenses on behalf of the class under
Labor Code sections 2800 and 2802.
Ignacio Salgado died in August 2015. At issue in this
appeal is whether the class claims were properly dismissed due to
the lack of an adequate class representative. While Jaime
Salazar has been substituted as a representative of Salgado’s
estate as to Salgado’s personal claims, he was never substituted
as class representative in this matter. No formal motion for
substitution of the class representative was ever granted, or even
heard, in this matter. Thus, there is no living appellant in this
matter.
PROPRIETY OF THE APPEAL
We requested supplemental briefing on the issue of
whether we could proceed with the appeal under these
circumstances. Class counsel asserts that the death of Salgado
has not divested this court of the “fundamental jurisdiction”
needed to continue to maintain the action or address erroneous
2
rulings, citing Hogan v. Superior Court (1925) 74 Cal.App. 704,
709-710 (Hogan). In Hogan, judgment was rendered in favor of
the administratrix of the deceased in February 1924. In April
1925, the superior court granted an ex parte order substituting
that same administratrix as the plaintiff in that action. The
appellant there argued that the judgment was void because the
action was without a plaintiff when it was tried. Under those
circumstances, the Court of Appeal determined that fundamental
jurisdiction remained despite the party’s death. The Hogan court
concluded that because the court had obtained jurisdiction over
the party in his lifetime, the judgment was erroneous, rather
than void, and that such error could be corrected. (Id. at pp. 710-
711; see Collison v. Thomas (1961) 55 Cal.2d 490, 496; Todhunter
v. Klemmer (1901) 134 Cal. 60, 63.) However, these authorities
all address the common situation in a nonclass action lawsuit
where a party’s heir or successor will naturally step in, as the
heir is the “‘real part[y] intended.’” (Collison, at p. 496.) They do
not address the situation where, as here, the deceased individual
was acting as a class representative.
Respondents also suggest that the lack of a living appellant
does not affect this court’s ability to render judgment on the issue
pending on appeal: whether the trial court correctly dismissed
the class claims in this case due to the lack of a class
representative. Respondents cite case law suggesting that
appellate courts frequently review a trial court’s ruling on class
certification even absent an adequate class representative.
(Citing Payton v. CSI Electrical Contractors, Inc. (2018) 27
Cal.App.5th 832 [plaintiff appealed from order denying class
certification in part because plaintiff was deemed an inadequate
class representative]; Jaimez v. Daiohs USA, Inc. (2010) 181
3
Cal.App.4th 1286, 1307 [plaintiff, inadequate class
representative, appealed from order denying class certification].)
However, in both these cases, a living person, aggrieved by the
trial court’s decision, was the appellant. There is no such living,
aggrieved person acting as appellant in this appeal.
While both parties urge this court to address the issues on
appeal, neither cites a case in which a long-deceased class
representative, as the sole appellant, was permitted to prosecute
an appeal.1 At the parties’ urging, we consider the issues raised
on appeal and conclude that the trial court did not err in
dismissing the class claim in this matter.
1 Salgado was deceased at the time that we rendered a
previous opinion in this case. (Salgado v. The Daily Breeze
(June 6, 2018, B269302) [nonpub. opn], fn. 1.) However, class
counsel did not notify the trial court of Salgado’s death until
December 23, 2015, the same date that counsel filed their notice
of appeal in the previous appeal, along with the filing of a “Notice
of Appointment of Special Administrator for Plaintiff Ignacio
Salgado (Deceased).” We did not address the lack of formal
substitution of the class representative, as Salgado’s death was
relatively recent and the judgment appealed from had disposed of
all class claims. Instead, we noted that, as the parties informed
us, on December 22, 2015, Salazar was appointed special
administrator and given the power to act on behalf of the estate
of Salgado for the purposes of that appeal. Under the
circumstances of the previous appeal, the lack of a formal
substitution could be considered a mere “‘procedural
irregularity’”—but one that “nonetheless . . . require[d] corrective
action” in the trial court. (Maher v. Saad (2000) 82 Cal.App.4th
1317, 1328, fn. 3.) Because a class claim was reinstated, and so
many years have passed without corrective action, the omission
of a living class representative can no longer be considered a
mere procedural irregularity.
4
FACTUAL AND PROCEDURAL BACKGROUND
Complaint and summary judgment proceedings
Respondent MNG owns respondents Torrance Holdings,
LLC, and Long Beach Publishing, LLC, which publish the Daily
Breeze and the Press Telegram, respectively. Between 2007 and
2011, the Daily Breeze and the Press Telegram contracted with
third party independent contractors, including Salgado, for home
delivery of newspaper products.
On March 24, 2011, Salgado filed a putative class action
alleging nine claims predicated on the theory that, although he
had executed independent contractor agreements with
respondents, he was, in fact, an employee. Among other claims,
Salgado asserted that respondents maintained a company-wide
policy not to reimburse Salgado and other putative class
members for necessary business expenses incurred in carrying
out their required duties. The trial court certified four causes of
action for class treatment: (1) fourth cause of action for failure to
provide correct itemized wage statements; (2) fifth cause of action
for unreimbursed business expenses; (3) sixth cause of action for
failure to maintain employee records; and (4) ninth cause of
action for unfair business practices. The remaining claims
proceeded as individual claims.
After class certification, respondents moved for summary
judgment or, in the alternative, summary adjudication as to all
claims. On May 26, 2015, the trial court granted respondents’
motion for summary judgment, and entered judgment in
respondents’ favor.
Salgado died on August 17, 2015. On December 22, 2015,
the probate court appointed Salazar as special administrator of
5
Salgado’s estate for the purpose of Salgado’s individual interest
in the class action. Despite appearing at an October 19, 2015
hearing class counsel did not inform the trial court of Salgado’s
death until December 23, 2015, simultaneous with counsel’s filing
of their notice of appeal from the judgment.
On June 6, 2018, this court reversed the trial court’s grant
of summary judgment as to the fifth cause of action for
unreimbursed business expenses. On August 6, 2018, this court
issued a remittitur and sent the case back to the trial court.
Class counsel submitted a peremptory challenge to the judge that
granted the summary judgment motion, and the matter was
reassigned for all purposes.
Relevant proceedings on remand
Briefing and discovery relating to substitution of
class representative
At the first postremittitur case management conference on
February 27, 2019, the court ordered the parties to meet and
confer regarding whether a stipulation could be reached as to
various issues, including the substitution of the administrator as
a class representative, and set a case management conference for
April 25, 2019. The parties submitted a joint case management
statement in advance of the April 25 case management
conference, which addressed each of the parties’ positions
regarding the special administrator (Salazar). Respondents
“reserve[d] all rights to argue . . . that the Special Administrator
is not an adequate class representative.” At the conference, the
trial court asked the parties to address “whether a special
administrator for a deceased person can be a proper class
representative.”
6
On May 7, 2019, the trial court issued an order stating that
“the parties’ first efforts in the case should and must be directed
towards trying to answer the question of who might now be a
proper class representative in light of the demise of Mr. Salgado.”
The court indicated that it “would like to see a new class
representative suggested and a motion made in that regard
within 30 days and the motion to decertify the class filed and
served to be heard at the same time, i.e., both within 60 days.”
In a June 18, 2019 case management statement, class
counsel asserted that it was respondents’ burden to move to
challenge Salazar’s adequacy upon formal motion and if the
challenge was successful, class counsel “must be afforded [the]
opportunity to issue notice to the class and conduct a reasonable
search for a new class representative.” On June 26, 2019, the
trial court informed class counsel that it was concerned that
Salazar was not an appropriate class representative. The court
pointed out that Salazar was “someone who’s out of the business
or not under contract in terms of ability to provide discovery. I
don’t know if he’s going to have that knowledge that’s essential
for him to be a class rep.” The court warned class counsel, “I
think it would be better to look for somebody who would be a
better rep at this point.”
On the same date, the trial court issued the following
written order:
“Plaintiff’s counsel is to decide if someone is to
be substituted in as a plaintiff in the place of the
deceased, Ignacio Salgado, i.e., in his sense of
becoming a plaintiff ‘in his shoes’ as one with a
derivative claim, entitled to seek or recover damages
in Mr. Salgado’s place as set forth and required in the
Code of Civil Procedure sections relating to the
substitution of personal representatives and/ or
7
successors in interest (or as an administrator or
representative of his estate if required by the Probate
Code); and should this take place, then counsel must
decide whether or not to seek to have that person also
be recognized and designated as the class
representative or to have someone else nominated for
that role. If plaintiff’s counsel decide that they wish
to proceed in this manner, they should do [so] with
regard to the personal representative issue per Code,
but as to a substitution as the ‘class representative,[’]
Plaintiff must file a motion to have the chosen
person, whether it be the ‘personal
representative/successor in interest’ to Mr. Salgado or
someone else, so recognized—the ‘class
representative motion.’”
The trial court ordered class counsel to inform respondents
by approximately July 26, 2019, the identity of the proposed class
representative so that respondents could undertake discovery as
to whether he or she was adequate.
On July 26, 2019, class counsel sent a letter to respondents’
counsel stating that counsel intended “to propose that Jaime
Salazar be recognized as Class Representative in this action.
Plaintiff is further investigating the possibility of naming an
additional proposed class representative within his motion;
however, Plaintiff’s efforts are continuing in this regard.
Accordingly, Plaintiff requests that the Parties enter into a
stipulation extending the timeline of the Parties’ motions
(currently due Sept. 26, 2019) to allow Plaintiff a reasonable time
to determine whether an additional proposed representative shall
be identified in his motion, and to allow Parties further adequate
time to conduct the limited discovery contemplated by the Minute
Order.”
8
Respondents propounded written discovery (special
interrogatories and requests for production) to Salazar and
scheduled his deposition for September 2019. The trial court
granted the parties’ joint stipulation to extend the time to file
their motions from September 26, 2019, to October 25, 2019. The
trial court set the hearing date on the parties’ motions for
January 15, 2020.
In August and September 2019, respondents conducted
discovery about whether Salazar would be an adequate class
representative.2
Class counsel filed briefing on October 31, 2019, which
included briefing on class counsel’s position that Salazar and the
estate should be recognized as class representative. Counsel
argued (1) that California law does not require that a new class
member be appointed as a class representative, (2) that Salgado
had already been found to be an adequate class representative,
and (3) that Salazar had already properly undertaken his duties
to represent Salgado’s estate on this action and would continue to
perform that role until the resolution of the case. The briefing
made clear that class counsel was “not seeking for Salazar to be
substituted as Class Representative in his personal capacity, or
as an alleged class member.” It was undisputed that Salazar did
not contract with respondents for home delivery of newspaper
2 Respondents provide extensive details as to why the
discovery they conducted revealed that Salazar was an
inadequate class representative, including information
respondents gained from Salazar’s September 9, 2019 deposition.
Because Salazar’s adequacy as a representative is not at issue in
this appeal, we decline to set forth this information.
9
products during the relevant time frame. Class counsel agreed
that Salazar is not personally a class member. Counsel argued:
“From a procedural standpoint Plaintiff is not
seeking for Salazar to be substituted as Class
Representative in his personal capacity, or as an
alleged class member. Rather, it is Salgado’s estate
that is continuing to pursue this litigation, and
Mr. Salazar happens to be the person charged with
carrying out that task on Salgado’s behalf.”
Counsel took the position that no change or substitution
needed to take place, as “Salgado’s estate remains the proper
Class Representative in this action.”
On October 31, 2019, respondents filed two motions: a
motion to decertify the class and a motion to dismiss class claims.
Substitution of estate as Salgado’s personal
representative
In response to the court’s request at the June 26, 2019
hearing, the parties met and conferred and entered a signed
stipulation for substitution of plaintiff pursuant to Code of Civil
Procedure section 377.31. The stipulation allowed Salazar to
serve as personal representative of Salgado’s estate for purposes
of Salgado’s individual claim. The stipulation specified:
“By way of this stipulation [respondents] do not
waive their position (including but not limited to any
corresponding legal arguments and/or objections
associated therewith) that Mr. Salazar, as personal
representative of the estate of Ignacio Salgado,
deceased, may not, and should not, act or serve as the
class representative in this matter, and that there
has been no class representative since the death of
Salgado, which is stated to have occurred on
August 17, 2015, pursuant to plaintiff’s Notice of
10
Appointment of Special Administrator for plaintiffs
Ignacio Salgado (deceased), filed December 23, 2015.”
The proposed order was not signed by the trial court.3
Further relevant proceedings regarding appointment
of class representative
On January 15, 2020, the trial court held a hearing on
respondents’ motions for decertification and to dismiss class
claims, as well as class counsel’s briefing seeking that Salazar
and the estate be recognized as class representative. At the
hearing, the trial court acknowledged class counsel’s “class
representative briefing motion.” The trial court indicated that
what it sought was briefing, but “you’re really telling me now you
want to treat it as a motion.” Class counsel responded, “[T]hat’s
actually not the case. We filed it with just the title ‘briefing,’ and
3 After this court requested supplemental briefing on the
issue of whether we could enter judgment for or against Salgado
(deceased) in this appeal, the parties appeared ex parte before
the trial court to have the court order the name of the plaintiff be
changed in light of the appointment of an administrator to
administer Salgado’s estate many years ago. By order dated
April 29, 2022, the trial court confirmed that on April 25, 2019, it
determined that Salazar would be allowed to proceed with the
case as Salgado’s representative “but as to the former plaintiff’s
individual claims only and not as a representative of the ‘class’
involved in the action as to which [Salgado] had been the ‘class
representative.’” The trial court declined to change the caption of
the case, but suggested that any such caption should read:
“‘Jaime Salazar as special administrator of the estate of Ignacio
Salgado but as to individual claims only,’ thereby omitting any
reference at all to there being any class action or to Salgado or to
his administrator as being as sort of ‘representative’ in that
regard.”
11
the clerk rejected it and required us to refile it with a new name
including the word ‘motion.’”4
The trial court later noted that it did not yet have a motion
to substitute a class representative, despite having given class
counsel a deadline to do so. The trial court stated, “I don’t have a
motion even now to substitute somebody as a new class
representative. I have no such class representative
suggested. . . . Time to come into court and get a new class
representative, and so on. All right. That’s number one.” 5
At the hearing, the trial court asked for supplemental
briefing on a number of topics, including a request “to see some
more case law on this point; i.e., the deceased class
representative, and what happens after that.” The hearing on
the further briefing was initially scheduled for May 4, 2020. Due
to extensions related to the COVID-19 pandemic, the briefing
4 The court later clarified: “So this is—but in reality it is a
motion. You want to have the court accept the representative of
Mr. Salgado’s estate as class representative here.” Counsel
responded, “Yes and no, your honor.” The court then asked, “Is it
in that brief that you make your case for that?” To which counsel
responded, “You can state it that way.”
5 Contrary to class counsel’s representation in its briefs to
this court that they did file a motion to substitute new class
counsel, the record shows that they did not. Instead, in the “class
representative briefing motion,” they insisted that the court
“accept” that this had somehow already occurred by virtue of
Salazar’s appointment as personal representative of Salgado’s
estate. The court was not contradicting itself when it later
stated, “I don’t have a motion even now to substitute somebody as
a new class representative.” The record shows that the court was
correct—counsel did not file such a motion in connection with its
October 2019 briefing.
12
deadlines were extended into August and September 2020, and
the hearing was continued to October 7, 2020.
In its August 2020 brief, class counsel asked for more time
to name a new class representative. Class counsel did not submit
any evidence that any efforts had been made to contact any
potential class representatives, even though class counsel had
informed respondents in July 2019 that they were considering
such action and sought an extension at that time for the same
reason.
At the October 7, 2020 hearing, the trial court heard
argument on respondents’ motion to dismiss, respondents’ motion
for decertification, and class counsel’s briefing regarding the
adequacy of Salgado’s estate as a class representative. The court
noted that class counsel had “months and months and months
and months to get—in fact, years—to get a proper class
representative appointed.” The court pointed out that there are
proceedings to have a personal representative substituted in as
class representative, “[a]nd that has never happened.” The court
took the matter under submission.
The court’s order dismissing class claim with prejudice
On October 15, 2020, the trial court issued a written order
dismissing with prejudice the class action claim “due to the lack
of an appropriate and approved class representative.”
The trial court observed that class counsel stipulated that
they were “not contending that Salazar should or could be
properly appointed as a class representative on his own merits.”
Instead, class counsel took the position that, “as a matter of law,
a person appointed to be the administrator of a deceased’s estate
in probate is automatically also entitled to serve as the class
representative in a class action if the deceased had been so
13
designated prior to his or her demise.” In summary, the court
stated, “class counsel are now asking that the court find that
Jaime Salazar, the nephew of the deceased Ignacio Salgado, be
recognized as the ‘new’ class representative and as having been
such since 2015 when he became the administrator . . . of
Mr. Salgado’s estate.” The court pointed out that class counsel
was wrongly conflating Salazar’s role as personal representative
of Salgado’s claim as an individual, and Salgado’s role as the
representative of a class similarly situated “with no money or
benefit coming to him which might be in any way an asset of his
estate.” The court noted, “Class counsel speak as if these two
distinct involvements were one and the same and conflates the
two . . . .”
The court further noted that the “most obvious route” class
counsel could have taken was “simply moved the trial court, as
far back as 2015 to replace the class representative.” Such
action, the court pointed out, was within the trial court’s power
even when this matter was pending on appeal. The court
emphasized that despite being Salgado’s personal representative
as to his individual claims, Salazar did not automatically take
over Salgado’s role as class representative:
“Accordingly, class counsel are in error when
they try to suggest that Salazar is and has been
involved in this action in some sort of individual
capacity as an individual ‘personal representative’ of
Salgado capable of performing all functions that
Salgado could have performed. That is not the case.
Salazar ‘as the estate representative’ has been
recognized, and an estate cannot be a class
representative, discussion infra. Salazar has been
and is only the representative of that asset held in
14
probate as to which the heirs are the ultimate true
parties in interest.”
The court concluded that “all of counsel’s discussions about
Mr. Salazar being the ‘personal representative’ of Mr. Salgado
are misplaced and actually misleading in the attempts to suggest
that Salazar as administrator is and has been acting in some sort
of individual role or capacity not only as to Salgado’s personal
claims and also as a class representative.” The court specified,
“He appears only ‘for and on behalf of’ the estate, and an estate
cannot be a class representative in a class action.” The court
further noted that “the facts before the court indicate that he
could not or would not be allowed to serve as such in this case
were his qualifications examined.”
The court found that “there is now no properly designated
or approved representative of the class and that there has not
been since 2015 which in turn calls for a dismissal of the class
action aspects of this case unless Plaintiff has demonstrated that
this court should or must grant a continuance for class counsel to
seek another representative of the class to replace Salgado.” The
court found that class counsel had failed to demonstrate that
such a continuance should be granted. The matter was filed in
2011 and involved contracts existing between 2007 and 2011.
The court pointed out that Salazar himself had testified that he
was unable to find any records of business expenses his uncle
Salgado paid for, and the court found it extremely unlikely that
other class members could do so. In addition to the passage of
time and lost evidence, “when Mr. Salgado passed away in 2015
counsel knew or should have known that a new class
representative was needed, yet they did nothing about it.”
Counsel “could not have reasonably concluded . . . that it was
15
enough to just have Mr. Salazar appointed as an estate
administrator in probate.” Counsel admitted in briefing that as
early as May 2019, the court “directed class counsel that they
needed to rapidly file a motion to get a new class representative
appointed, but they did not do so.” Counsel “also failed to submit
any facts whatsoever that would support [a continuance], such as
that other class members have been located who would be willing
to serve, or that there is a pool of class members who have been
identified and can be contacted (who, of course, should have been
contacted by now, etc.).” Under the circumstances, the court
denied class counsel’s motion for a continuance. The court stated,
“This litigation has gone on for now nine years, and yet no effort
is made in Plaintiff’s papers to show that delay and a waste of
time would not be the result of a grant of Plaintiff’s request.”
In light of the court’s decision dismissing the class aspects
of the case, the trial court determined that all other pending
issues were moot.
Notice of appeal
Under California’s death knell doctrine, the dismissal of
class claims is immediately appealable. (Richmond v. Dart
Industries, Inc. (1981) 29 Cal.3d 462, 470.) Class counsel filed
the notice of appeal in this matter on December 3, 2020.
Appellant’s individual claim remains viable in the trial court and
is ready to be set for trial.
DISCUSSION
I. Standard of review
The parties disagree regarding the issue on appeal and the
standard of review. Class counsel assert that the court’s decision
to dismiss the certified class even though the late
16
representative’s estate has stepped in is a legal issue to be
reviewed de novo.6 Class counsel assert that (1) Salgado was
found to be an adequate representative of the class; (2) Salazar
was properly named representative of the Salgado estate; (3)
Salazar has adequately performed his duties as the substituted
class representative;7 and (4) California law permits class actions
to continue to be maintained by a deceased representative’s
estate.
Respondents, on the other hand, suggest that “[o]n review
of a class certification order, an appellate court’s inquiry is
narrowly circumscribed.” (Brinker Restaurant Corp. v. Superior
Court (2012) 53 Cal.4th 1004, 1022 (Brinker).) Thus, we must
6 Again, class counsel insist that Salazar simply “stepped in”
to the role of class representative, despite no motion to substitute
having ever been decided in this matter. Still, class counsel are
inconsistent in their briefing as to who precisely they contend is
the class representative in this case. In their opening brief, class
counsel complain that the trial court erred in “rejecting the estate
and Mr. Salazar as substitute Class Representative, a role
[Salazar] had been serving in since Mr. Salgado’s death.” (Italics
added.) However, in their reply brief, class counsel states, “The
Plaintiff in this action is still Ignacio Salgado—who diligently
served in his capacity as class representative, sat for depositions,
and thoroughly responded to written discovery for several years
before his death.” Thus there remains a lack of clarity as to the
trial court’s alleged error—a rejection of the automatic stepping-
in of Salazar as a substitute class representative, or a refusal to
allow Salgado to continue to be the class representative, although
deceased.
7 This again highlights the lack of clarity as to class counsel’s
position, as there was never a formal substitution of Salazar as
class representative in this case.
17
accord such decisions “‘great deference,’” and reverse “‘only for a
manifest abuse of discretion.’” (Ibid.) As relevant here,
respondents argue, we must review whether substantial evidence
supported the trial court’s determination that class counsel failed
to put forth an adequate class representative. (Ibid.)
Upon review of the trial court’s written order, we agree
with respondents that the trial court decision was a discretionary
decision based on class counsel’s failure to propose a new class
representative upon the demise of Salgado. The trial court did
not base its decision on a blanket statement of law, but on its
determination that class counsel had delayed proposing new class
counsel for too long and showed no efforts to find a suitable
replacement for Mr. Salgado.8
The suitability of the named class representative is a
determination that is within the discretion of the trial court. (La
Sala v. American Sav. & Loan Assn. (1971) 5 Cal.3d 864, 871 (La
Sala).) After determining that such a representative is
unsuitable, and after the court has extended the plaintiffs an
opportunity to amend the complaint to add new individual
plaintiffs, if “the class still lacks a suitable representative, the
court may conclude that it must dismiss the action.” (Id. at
p. 872.) This is the conclusion that the trial court reached in this
8 Class counsel insist that the court made an erroneous legal
conclusion when it determined that “an estate cannot be a class
representative in a class action.” We find that we need not
discuss the legal accuracy of this statement, as it was not the
basis of the trial court’s decision, thus it was merely dicta. The
court acted within its discretion in expressing concern about the
suitability of the estate to serve as class counsel in this case, and
in directing class counsel, on several occasions, to formally
propose a new class representative.
18
case, and we review the record to determine whether the facts
below support the court’s actions in this matter.
A trial court’s decision on certification “‘generally will not
be disturbed unless (1) it is unsupported by substantial evidence,
(2) it rests on improper criteria, or (3) it rests on erroneous legal
assumptions.’” (Brinker, supra, 53 Cal.4th at p. 1022.)
II. The class lacked a class representative
Class counsel take the position on appeal that Salazar had
already “stepped in” to Salgado’s role as class counsel. Thus, we
must first address class counsel’s erroneous premise that Salazar
had slipped into Salgado’s role as class representative without
any formal proceedings in the trial court.
In seeking to certify a class, “The party seeking class
certification has the burden of proving the adequacy of its
representation.” (Richmond v. Dart Industries, Inc., supra, 29
Cal.3d at p. 470.) The named representative must be able to
protect the interests of the class fairly and adequately. (Ibid.)
However, it is within the trial court’s discretion to determine,
based on the facts and circumstances of the case, that an action
should not be continued as a class action with the named party
representative. (La Sala, supra, 5 Cal.3d at p. 872.) This
includes a situation where the named class representative has
died. Class representatives carry many obligations that require
them to be alive and participate in the proceedings as necessary.
(Soderstedt v. CBIZ Southern California, LLC (2011) 197
Cal.App.4th 133, 156 [“‘even after class certification and notice,
[class representatives] are the ones responsible for trying the
case, appearing in court, and working with class counsel on
behalf of absent members’”].)
19
When the trial court determines that an action should not
be continued with the named party as class representative, the
trial court should afford the plaintiffs the opportunity to add new
individual plaintiffs “in order to establish a suitable
representative.” (La Sala, supra, 5 Cal.3d at p. 872.) After the
court has extended such an opportunity, if the class still lacks a
suitable representative, “the court may conclude that it must
dismiss the action.” (Ibid.) This is what occurred in this case.
Class counsel protest that California law permits class
actions to continue to be maintained by a deceased class
representative’s estate. Essentially, class counsel argue that
since his late uncle’s death, Salazar has simply stepped into
Salgado’s role as class representative.9
Class counsel begin with the general proposition that
“California law allows a deceased plaintiff’s estate to maintain an
action pending at the plaintiff’s death and to recover any
damages, including punitive damages, to which the plaintiff
would have been entitled, with one exception: it precludes the
estate from obtaining any damages for the plaintiff’s pain and
suffering.” (County of Los Angeles v. Superior Court (1999) 21
Cal.4th 292, 294-295.) This general statement of the law is
uncontested with regard to Salgado’s individual claims.
9 The court disagreed with class counsel on this issue,
stating, “the court finds that all of counsel’s discussions about
Mr. Salazar being the ‘personal representative’ of Mr. Salgado
are misplaced and actually misleading in the attempts to suggest
that Salazar as administrator is and has been acting in some sort
of individual role or capacity not only as to Salgado’s personal
claims and also as a class representative. Again, that is not the
case.”
20
Respondents have agreed that Salazar should be substituted as
to Salgado’s individual claim under Labor Code section 2802.
However, this general proposition does not suggest that estate
representatives may automatically step in as class
representatives in a class action.
Class counsel argue that California law permits class
actions to continue to be maintained by a deceased class
representative’s estate. Preliminarily, we note that such a
permissive rule does not mandate that the trial court must allow
the deceased representative’s estate to maintain the class action
in every case. Despite the permissive rule, trial courts continue
to have the discretion to order that a new class representative be
appointed. (La Sala, supra, 5 Cal.3d at p. 872.) Furthermore,
the cases cited by class counsel do not suggest that the executor
of a deceased class representative’s estate may simply step in
without a formal motion.
Class counsel cite three cases that illustrate that in some
cases, it may be appropriate for a deceased class representative’s
personal representative to be substituted in as a class
representative. However, the cases do not advance counsel’s
argument in this matter. Lewis v. Robinson Ford Sales, Inc.
(2007) 156 Cal.App.4th 359, 362 was a proposed class action
involving an alleged violation of California’s Automobile Sales
Finance Act. (Civ. Code, § 2981 et seq.) Defendants had opposed
the motion for certification, arguing that the class was not
ascertainable, there was no community of interest among the
class members, no sufficient evidence as to numerosity, that
plaintiff Cornell (deceased) was not typical of class members, and
that his successor Lewis could not adequately represent the class.
The trial court denied certification, and the plaintiffs appealed.
21
The Court of Appeal reversed, focusing its discussion on whether
the claims were amenable to class treatment. The court included
a footnote that the original class representative had died and the
trial court in that matter “allowed Gary Lewis, as personal
representative of Robert Cornell, to maintain and continue this
action as representative of the class.” (Lewis, at p. 362, fn. 1.)
The Lewis court made only one other mention of this issue in its
decision, stating “Plaintiff, the personal representative of Cornell,
has not been shown to be an inadequate representative of the
class, nor did the court actually include a ruling on that issue in
its order.” (Id. at p. 371.) The case sheds no light on what
procedures occurred prior to the trial court’s acceptance of Lewis
as the substitute class representative, nor on Lewis’s
qualifications as class representative. As set forth above, simply
because a trial court allowed such a substitution in one instance,
does not require the court to do so in this case. Further, it does
not suggest that personal representatives may simply step in to
continue a class action.
Pepper v. Superior Court (1977) 76 Cal.App.3d 252 involved
a complicated situation very different from here. Pepper and
Reich were both members of the Brentwood Country Club.
Pepper, with Reich as his lawyer, sued the club on behalf of
himself and others similarly situated. (Id. at p. 256.) Prior to
Pepper’s death, on motion of Brentwood Country Club, the trial
court disqualified Reich from acting as counsel in the matter due
to a purported conflict of interest as a member of the club. After
Pepper died, Reich was one of his co-executors. Counsel for
Brentwood Country Club refused to allow the substitution of
Reich and his co-executor as plaintiffs to continue the action. The
trial court agreed and entered an order restraining Reich from
22
acting further in his capacity as co-executor with respect to
prosecution of the case. (Id. at p. 258.) The Pepper court
reversed, directing that the trial court enter an order granting
the motion of Reich and the co-executor to continue the action in
their names as executors, among other things. The court noted
that Reich was “both a member of the Brentwood corporation and
a person who will benefit if the class action against the
corporation is successful.” (Id. at p. 262.) The case does not
stand for the proposition that Salazar automatically became the
class representative in this matter—only that the trial court’s
reasons for denying a motion to substitute were incorrect in that
case.
Finally, class counsel cite Shuts v. Covenant Holdco LLC
(2012) 208 Cal.App.4th 609, 613, footnote 1, which presents a
footnote that one of the named plaintiffs brought the action as
“‘successor-in-interest and personal/legal representative’” of a
deceased former resident of the defendant skilled nursing
facilities, and the second named plaintiff was a conservatee and
current resident of one of the facilities, bringing the action
through his conservator. The footnote merely explains that the
case caption was adjusted to reflect the proper parties. The case
does not suggest that such substitution is required in every case,
nor does it explain the procedural history of the matter.
The facts in this matter differ from all three cases. First,
the trial court made known soon after the matter was remanded
its preference that class counsel file a formal motion to designate
a new class representative. Class counsel did not do so, instead
arguing that Salazar, as Salgado’s personal representative, had
simply stepped in as replacement representative. The court
raised the issue many times, and despite their initial statements
23
that they would be seeking another individual to potentially
serve as class representative, counsel never did so. Class counsel
has not cited any cases suggesting that, under the circumstances
of this case, it was an abuse of discretion for the trial court to
dismiss the class claim.
Class counsel argue at length that Salazar met the minimal
adequacy standard for a class representative.10 We find this
discussion to be irrelevant. As class counsel admit, the trial court
did not engage in any extensive evaluation of Salazar as a
potential class representative. Due to the court’s decision to
dismiss the case due to the extended absence of an approved class
representative, the trial court declined to consider Salazar’s
qualifications as class representative.11 Instead, the court stated:
“in light of the fact that the plaintiffs have not even argued that
such a recognition of proper qualifications is being argued or
submitted, the court need not reach or rule upon these issues.”
As the issue was not considered at length in the trial court, we
decline to address it.
10 Again, class counsel’s inconsistent positions as to the
identity of the class representative do not advance their claims.
Class counsel insist at other points in their briefs that Salgado,
not Salazar, remains the class representative.
11 The trial court did note that “the parties agree that
Mr. Salazar was, at some point, a newspaper carrier for one or
more of the defendants, it appears that all parties agree that it
was not for the same period as Mr. Salgado and the other ‘class
members’ identified in the Complaint as being similarly situated
with Mr. Salgado.” The court described it as “hornbook law” that
“a plaintiff seeking to maintain a class action must be a member
of the class he claims to represent.” (Citing Petherbridge v.
Altadena Fed. Sav. & Loan Assn. (1974) 37 Cal.App.3d 193, 200.)
24
Class counsel have failed to provide legal authority for
their position that Salazar simply stepped into the role of class
representative in this matter or that such automatic recognition
of an individual would have been appropriate in this case. Thus,
we conclude, as the trial court did, that there was no properly
approved or designated class representative since the time of
Salgado’s death in 2015. Under the circumstances, it was within
the trial court’s discretion to dismiss the class claim.
III. Continuance for leave to amend
In the event that respondents’ motion to decertify the class
was granted in the trial court, class counsel sought a continuance
to amend the class complaint and propose a new class
representative. The trial court acknowledged the general rule
that a liberal approach should be taken and relief is called for
where there is a reasonable possibility that the defect can be
cured by amendment. (Citing Goodman v. Kennedy (1976) 18
Cal.3d 335, 349.) However, the burden is on the plaintiff to
demonstrate “in what manner he can amend his complaint and
how that amendment will change the legal effect of his pleading.”
(Ibid.)
The trial court found that class counsel had not made an
adequate showing in this matter. Specifically, they “failed to
submit any facts whatsoever that would support [a continuance],
such as that other class members have been located who would be
willing to serve, or that there is a pool of class members who have
been identified and can be contacted (who, of course, should have
been contacted by now, etc.).” Class counsel cited no factually
similar cases suggesting that a continuance was warranted under
the circumstances of this case. In sum, the trial court found
“[t]here is no good excuse that has been proffered for counsel’s
25
prolonged failure to act to seek a new representative—especially
after hearing the court’s directive and repeated insistence that a
replacement appeared to be needed.” The court was concerned
with the significant prejudice caused by the delay, “not just as to
the defendants’ ability to defend, but also in terms of Plaintiff’s
ability to proceed with the entire action.” The court noted, “We
all know that cases do not get better with time, memories fade
and evidence is lost.”
We review the trial court’s decision on class counsel’s
request for a continuance and leave to amend for abuse of
discretion. (Graphic Arts Mutual Ins. Co. v. Time Travel
Internat., Inc. (2005) 126 Cal.App.4th 405, 410.) Class counsel
provide few additional facts to support their position that leave to
amend should be granted. First, counsel claim that the trial
court did not ask for any facts regarding their potential to find a
new class representative. Instead, the court asked for law
regarding the court’s ability to exercise its discretion in granting
a motion to substitute new class representatives. Class counsel
argues that it presented such law.12 Counsel decline to address
the court’s earlier direction in early May 2019 that counsel
12 In discussing such law, class counsel acknowledge that
there are circumstances in which leave to amend is properly
denied, such as “when an unreasonable delay in seeking
amendment prejudices the defendant.” (Payton v. CSI Electrical
Contractors, Inc., supra, 27 Cal.App.5th at p. 849.) The Payton
court concluded, “One of the grounds that the trial court
identified here for denying Payton’s request to find a new class
representative was the length of time this action has been
pending. The trial court could properly rely on the age of the case
in denying Payton’s request to find a new class representative.”
(Ibid.)
26
should attempt to locate a new class representative. In sum,
class counsel argue that the trial court is setting forth an
erroneous account of the years-long delay leading up to the
October 2020 hearing—in counsel’s words, “a delay caused by the
trial court rather than any of the parties.”13 Class counsel cite no
evidence in the record that counsel has made any efforts to obtain
a substitute class representative in this decade-old case. Under
the circumstances, we find that the trial court did not abuse its
discretion in declining to grant the requested continuance.
DISPOSITION
The order of dismissal is affirmed. Respondents are
awarded costs of appeal.
___________________________
CHAVEZ, J.
We concur:
_______________________________
LUI, P. J.
____________________________
HOFFSTADT, J.
13 We are not inclined to adopt class counsel’s version of the
facts in lieu of the trial court’s version of the facts. Instead, “[w]e
must ‘[p]resum[e] in favor of the certification [decision] . . . the
existence of every fact the trial court could reasonably deduce
from the record . . . .’” (Brinker, supra, 53 Cal.4th at p. 1022.)
27