Can a Defendant Move to Certify After It Wins The Case?
Down With Frivolous Lawsuits! (and By "Frivolous" I Mean Those Other Guys' Lawsuits)

Justices: Are You Serious?

It looks like the principles of Fireside Bank v. Superior Court (Gonzalez) (2006) 40 Cal.4th 1069, will doom the novel theory advanced in Ortiz v. Lyon Management Group, Inc., where the defendant won a summary judgment motion, before hearing a certification motion, and then asked the court to go back and certify the case. In the appeal, the defendant argued that the trial court abused its discretion by refusing to certify the case, after entry of the summary judgment order. The defendant claimed that the court should have forced the plaintiff to serve as an unwilling class representative on a doomed claim, and should have ordered publication and service of a notice to class members informing them that: (i) there was a class action pending; (ii) they already lost; and (iii) they were not going to be permitted to opt out of it.

At today's oral argument, the first question directed to the appellant came from Justice Ikola, who asked (and we admittedly paraphrase here) whether the appellant could direct the court to any case in which any court had ever done anything remotely similar to what the defendant asked of the court in this case. This question seemed to set the tone for the rest of the appellant's argument.

If you check the case docket, you may notice quite a few friends of the court submitting papers in favor of Lyon Management Group, Inc. Upon closer examination, you will note that they submitted their amicus papers in support of Lyon Management as a respondent, on the underlying creditor issue that was at stake in the summary judgment motion. As appellant, on its appeal seeking retroactive certification by a prevailing party after determination of the merits, Lyon Management seems to be without any friends.

We leave the argument wondering not whether the appeal will be denied, but whether the cross-appeal will reinstate the case. On the appeal, we also wonder whether the court will find that there can be no after-the-fact certification; or merely that there can be no after-the-fact involuntary no-opt-out class; or merely that the trial court was within its discretion to deny certification. If the cross-appeal succeeds, it is possible that the opinion will be an unpublished reversal. If the cross-appeal fails, an interesting published opinion seems more likely.

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