In re BCBG Overtime Cases, 163 Cal. App. 4th 1293 (2008)

BCBG Maxazria filed a motion to strike class allegations from the complaint Christina Denkinger filed in which she and other putative class representatives alleged that BCBG misclassified its managers and assistant managers as exempt from overtime because they spend more than 50 percent of their time performing duties delegated to non-exempt employees. In support of its motion to strike, BCBG submitted declarations from 25 current and former managers and assistant managers in support of its contention that plaintiffs could not prove the elements of typicality or commonality necessary for class certification. Plaintiffs asserted the motion to strike was an improper attempt to circumvent the class certification process, but the trial court granted the motion because “class certification may be determined at any time during the litigation.” The Court of Appeal affirmed dismissal of the class allegations after concluding that the motion to strike was not filed before plaintiffs had had a chance to conduct discovery on class certification issues. Compare Bufil v. Dollar Fin. Group, Inc., 162 Cal. App. 4th 1193 (2008) (employee is not collaterally estopped from prosecuting new suit alleging meal and rest break violations involving subclasses following denial of certification of larger class); Sharp v. Next Entm’t, Inc., 163 Cal. App. 4th 410 (2008) (conflict-of-interest rules did not bar union’s law firm from representing a class of non-unionized employees in prosecuting wage-and-hour claims).