Fierro v. Landry’s Rest. Inc., 2019 WL 658710 (Cal. Ct. App. 2019)

Jorge Fierro filed this class action, claiming that he and the other members of the putative class were misclassified as exempt employees and that, in fact, they were non-exempt, non-managerial employees who are owed unpaid overtime wages and penalties. Landry’s responded by filing a demurrer, asserting that the claims are barred by the applicable statutes of limitation. Although Landry’s conceded that the filing of an earlier class action for these claims tolled the statute of limitations applicable to Fierro’s individual claims, it maintained that the statute was not tolled for the class claims Fierro asserted. Landry’s also contended that because the earlier class action was dismissed for failure to bring the action to trial within five years, the class claims could not be resurrected in the new action filed by Fierro. The trial court sustained the demurrer to the class claims due to the earlier dismissal based upon the five-year rule. The Court of Appeal reversed and remanded the action to the trial court, holding that on the present record the Court could not determine whether all of the class’ claims are untimely. The Court further determined that upon denial of class certification in an action, a putative class member may not commence the same class claim in a new action beyond the time allowed by the limitation period applicable to the class claim, citing China Agritech, Inc. v. Resh, 584 U.S. ___, 138 S. Ct. 1800 (2018) (successive class action may not be filed under federal law after the original statute of limitations period has expired).