As with other states, the development of a regime governing class actions arose in California from the strong need to efficiently resolve common issues among a large number of individuals, due to the impracticalities and strain on judicial and personal resources associated with bringing numerous individual lawsuits. In California, a specific driver has been consumer protection.

A catalyst appears to have been when Federal Rule of Civil Procedure (“FRCP”) 23 governing federal class actions was amended and modernised in 1966. In 1970, California passed the Consumer Legal Remedies Act, which codified the consumer right to class actions in California Civil Code § 1781.  In 1971, California updated its Code of Civil Procedure (“CCP”) to add § 382, which allowed matters to proceed as class actions “when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court.”  The same year, the California Supreme Court heard Vasquez v Supreme Court, 4 Cal.3d 800, and held that consumers could pursue class relief in fraud cases, recognising that individual damages may be too small to justify separate lawsuits. California’s Unfair Competition Law (fashioned after Section 5 of the Federal Trade Commission Act) provides additional statutory support for class actions in consumer protection cases and was strengthened in 1977 when it was moved to the Business and Professions Code (§§ 17200, et seq).

California has “a public policy which encourages the use of the class action device.”  Sav-On Drug Stores v Supreme Court, 34 Cal. 4th 319, 340 (2004). In that spirit, today California trial courts have “an obligation to consider the use of... innovative procedural tools proposed by a party to certify a manageable class” and are urged to be “procedurally innovative.”  Id. at 339.

Prior to California’s adoption of its own class action regime, FRCP 23 generally guided the state’s courts. However, after the establishment of CCP § 382 and the state Supreme Court’s subsequent holding in Vasquez, 4 Cal.3d 800 (1971), Rule 23 has acted more akin to a “stopgap,” intended only to provide guidance for those situations that are not directly addressed by California’s rules.

The language of California’s CCP § 382 is broader than that of FRCP 23. And California courts have made clear that they did not want to “adopt[] [Rule 23] as a procedural strait jacket,” but should rather “exercise pragmatism and flexibility in dealing with class actions.”  Cartt v Supreme Court, 50 Cal.App.3d 960, 970 (1975).

There are many differences between California’s regime and the federal rules. Some highlights have been outlined below.

• Class certification is generally easier in California. For example, California does not require a minimum number of plaintiffs to satisfy the “numerosity” requirement, and a class may also be certified even if individual class members need to prove differing damages.
• California generally does not allow dispositive motions to be filed before class certification, but CCP §527(b) permits a trial court to issue injunctive relief before class certification. Federal courts operate in the opposite fashion.
• While both California and federal law require court approval of a proposed class settlement, in California, class members only have standing to appeal a settlement if they have actually intervened in the action or filed a motion to vacate a judgment approving the settlement. In federal court, any objecting class member has standing to appeal a judgment approving the settlement.
• “Fraud on the market” remains a viable theory in federal securities litigation to establish a presumption of reliance, whereas California requires each individual plaintiff to prove direct reliance on the defendant’s alleged misrepresentation.

Not applicable to the State of California nor the United States of America.

Four principal statutory provisions govern collective redress/class actions in California.

First, CCP § 382 provides the procedural basis of California class actions;

Second, Bus. & Prof. C §§ 17000 et seq (the “Unfair Competition Law” or “UCL”) provides the basis for collective unfair competition claims;

Third, Civil Code §§ 1750 et seq (the “Consumers Legal Remedies Act” or “CLRA”) provides the framework for collective actions on behalf of consumers that fall victim to enumerated behaviours designated as deceptive or unfair in connection with transactions for goods or services;

Fourth, Labour Code §§ 2698 et seq (the “Private Attorneys General Act” or “PAGA”) permits representative actions to enforce provisions of the California Labour Code on behalf of the State of California.

Each of the above legislation applies to distinct areas of law and types of disputes in California.

CCP § 382 provides the procedural basis for class actions across a wide variety of substantive areas of law in California. These substantive areas of law include securities, consumer, product liability, and labour and employment claims, among many others.

Bus. & Prof. C §§ 17200 et seq provides the procedural mechanism for unfair competition claims in California and forbids conduct that is unfair, unlawful, or fraudulent under California law. Such claims can be pursued on a representative basis.

Civil Code §§ 1750 et seq provides the procedural basis for collective claims against violations of 29 enumerated categories of consumer protection in California. These prohibitions are interpreted broadly to protect California consumers.

Labour Code §§ 2698 et seq provides the procedural mechanism for the pursuit of collective redress regarding violations of the California Labour Code. This law permits a plaintiff to act on behalf of the State of California, with 75% of any recovery payable to the State and 25% payable to the workers impacted by the violation[s] of California law.

Collective redress in California consists primarily of:

• class actions; and
• representative actions.

With respect to class actions, applicable California law, set forth in CCP § 382, defines a California class action as follows: “. . .[w]hen the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.”

With respect to representative actions, a prominent example is the Private Attorneys General Act, Labor Code §§ 2698 et seq  Section 2699(a) describes representative action under PAGA as follows: “Notwithstanding any other provision of law, any provision of this code that provides for a civil penalty to be assessed and collected by the Labor and Workforce Development Agency or any of its departments, divisions, commissions, boards, agencies, or employees, for a violation of this code, may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of the employee and other current or former employees against whom a violation of the same provision was committed pursuant to the procedures specified in Section 2699.3.”

There are two primary means of pursuing collective redress in California: class actions and representative actions. Class actions are governed generally by CCP § 382 and can apply to a wide variety of substantive areas. Representative actions are governed primarily by Bus. & Prof. C §§ 17200 et seq, Civil Code §§ 1750 et seq, and Labour Code §§ 2698 et seq and target the narrower areas of unfair competition, consumer protection, and employment rights.  Each of these mechanisms features a plaintiff acting on behalf of additional, similarly situated parties under Court supervision.

California Class actions begin with the filing of a Complaint in one of the 52 California Superior Courts with allegations that a plaintiff is pursuing claims on behalf of a defined group of putative class members. Defendant[s] can file either a Demurrer – which is the California version of a federal Motion to Dismiss – to challenge the legal sufficiency of the Complaint or an Answer. Civil discovery follows and may focus on class issues, substantive issues, or both. Eventually, the plaintiff will file a Motion for Class Certification, which the defendant[s] will have an opportunity to oppose.  Finally, if certification is granted, the case will proceed forward on a class-wide basis. If certification is denied, that order is generally appealable under the California “death knell” doctrine, and the plaintiff may seek review before having to decide whether to proceed on an individual basis.

The California Constitution does not have any provision similar to Article III standing in the US Constitution, as the Court recognised in National Paint & Coatings Ass’n v State of California, 58 Cal., 58 Cal.App.4th 753,761 (1997) (“Our state Constitution includes no ‘case or controversy’ requirement.”)  Instead, lesser standing requirements are included in various California statutes and in court decisions. Lacking an Article III requirement, standing in respect of California collective redress/class actions is generally much more permissive than in federal court.

For example, for years, California plaintiffs could bring UCL claims on a representative basis pursuant to 17200 et seq, notwithstanding having suffered no harm themselves. While this has changed with respect to UCL claims, California standing remains far more permissive than in federal court in other contexts. More recently, California courts have permitted PAGA plaintiffs to pursue representative claims in court under PAGA even when:

• their own individual claims had been either ordered to arbitration; or
• settled entirely.

California law does not specify a minimum number of class members that a plaintiff must represent in order to obtain class certification. Instead, California courts consider whether putative class members are so “numerous” that “it is impracticable to bring them all before the Court.”  CCP § 382. As a practical matter, California Courts often look to Federal Rule of Civil Procedure 23 and federal case authorities in determining whether sufficient numerosity exists to proceed on a class-wide basis. Significantly, California class actions operate generally on an “opt-out” basis, where it is the responsibility of a class member to timely “opt-out” of a California class action if they do not want to be bound by the legal result of the action or settlement.

Under California law, joinder is the fundamental jurisprudential basis for addressing numerous, similar claims efficiently and consistently on a collective basis. California class actions and representative actions provide the procedural mechanism by which this is accomplished.

California Courts use a variety of case management tools in respect to handling class actions and representative actions. To begin, Case Management Conferences permit the courts to manage all aspects of scheduling. Many California Superior Courts have a “Complex Department” that handles all class actions and representative actions and is often staffed by a judge with applicable experience with actions seeking collective redress.

In respect of class actions, the judge’s Class Certification Order is a powerful tool to define the composition of the class and the scope of issues. Judges determine if and how class members will be notified of the action and their right, if any, to opt out. By approving the content of any Class Notice, the Court can further manage the action and the flow of information to class members. California judges also provide settlement oversight and must affirmatively approve as fair and reasonable any class action settlement. California judges also must review and approve any attorney’s fees to be paid on a class-wide basis. Finally, judges must approve the dismissal of any California class action.

In respect of representative actions, California judges may allow representative testimony, surveys, and statistical analysis to prove violations on a group basis. Also, PAGA settlements in California remain subject to judicial approval.

California class and representative actions can vary significantly in length of time between initiation and resolution, depending on both the particulars of the claims (nature, complexity, size, and scope) and the particular court and judge.  In general, California Courts have heavy caseloads, and complex class and representative actions almost always take more than two years to reach trial. California law (CCP §583.310) requires that actions be brought to trial within five years of initiation, but courts can allow the parties to extend that statutory deadline for cause.

Some California courts assign cases to a single judge at initiation, who manages, hears, and oversees the matter through trial. This is the norm for cases filed in “Complex” departments, and often applies to class and representative actions. Other courts assign cases to more general departments, such as “Law and Motion,” with rotating judges who handle all pre-trial matters, such as scheduling and discovery, before assigning the case to a trial judge. Judges have significant discretion on timing and tend to favour extended schedules.  Judges generally check in on the progress of cases at case management conferences every four to six months and set trial dates (which trigger statutory deadlines) and mandatory settlement conferences after discovery.

California allows plaintiffs to petition for accelerated scheduling under certain circumstances, such as extreme age or terminal illness. In some courts, parties may mutually stipulate to expedited trial proceedings with limited discovery and limited appeal rights, but it is rare for defendants in class or representative actions to do so. California courts have numerous points for pre-trial disposal or partial disposal of proceedings, including upon motion for demurrer, class certification, summary adjudication or summary judgment.

California follows the “American Rule” in which each side pays for its own costs and attorney fees, regardless of who prevails – unless there is a contract or statute that provides for cost and fee shifting. It is rare for there to be such an exception for class actions. UCL cases do not provide a statutory basis to recover attorney fees. In contrast, the PAGA statutes do provide that successful plaintiffs who enforce important rights or confer significant benefits are awarded their reasonable attorney fees and costs.

As a practical matter, class actions and most representative actions are typically handled on a contingency fee basis. This means that the lawyers representing plaintiffs agree not to seek payment for their fees or costs unless the case is successful. The recovery amount is structured so that the representative plaintiffs are not personally responsible for paying attorney fees or costs. In successful contingency cases, the amount for attorney fees and costs is determined by a contractual agreement; however, courts generally have the authority to approve or disapprove the amount as a form of oversight. These fee arrangements are generally a percentage of the recovery (award after costs), and are most commonly around 33%.

Third-party litigation funding is allowed in California, but is the subject of ongoing legislative proposals regarding disclosure and applicability, and is less common than contingency fee arrangements. The State Bar of California has provided formal guidance on litigation funding.

Discovery

Pre-trial discovery in California class actions typically occurs in two phases, focusing first on evidence for class certification and then on the merits of the case. California courts are generally more permissive than federal courts regarding pre-certification discovery seeking potential class member information, though discovery must still be relevant to substantiating the class allegations. California courts are generally very permissive regarding the discovery of the merits. The scope of discovery includes any nonprivileged matter that is relevant to the subject matter of the case or a pending motion, and is proportional to the needs of the case, even if the information itself is not admissible in court. Common tools include disclosures, interrogatories (written questions), document requests, requests for admission, and oral depositions. California law recently changed to provide for initial disclosures, requiring parties to exchange information within 60 days of an initial disclosure request, unless modified by court order or stipulation. Disclosures must include information on relevant witnesses, documents (including electronic data) that may support claims or defences, and insurance policies, but do not need to be provided if the sole use would be for impeachment. 

Discovery responses in California must be verified under oath by the responding party. Unlike the federal court, initial disclosures are not automatic, but must be requested by the opposing party.

The court can limit discovery if the burden, expense, or intrusiveness clearly outweighs the likelihood of finding admissible evidence.

Privilege

In California, the “attorney-client” privilege protects communications made in confidence between a client and an attorney for the purpose of seeking or providing legal advice. The scope includes various communication methods like emails, letters, texts, and phone calls.

The scope also applies to communications with experts providing expert advice to the attorney necessary for the attorney to provide legal advice to the client. The privilege belongs to the client, persists after the attorney-client relationship concludes, and usually requires the client’s consent to be waived, although exceptions apply in cases of preventing imminent death or serious bodily harm. 

In California, attorney work product is categorised into absolute and qualified protections. Absolute work product is not discoverable under any circumstances and includes writings containing an attorney’s “impressions, conclusions, opinions, or legal research or theories.” Qualified work product covers all other materials, which can be discovered only if the court finds that denying discovery would unfairly prejudice the party or result in injustice.

Where a party objects to the production of documents on the basis of privilege, such records may be withheld from discovery, even if they would otherwise be relevant. If a party objects to producing a document by claiming attorney-client privilege or work product privilege, CCP §2031.240 requires the party to identify the specific document and state the basis for the objection. The most common way to do this is through a privilege log to be produced to the other side.

California provides a mediation and settlement privilege that generally protects communications made during mediation and documents prepared for it from being used as evidence in court, as outlined in California Evidence Code §1119.

In California class actions, remedies can include monetary damages, statutory penalties, injunctive relief, restitution, and punitive damages. Remedies available in representative actions depend on the specific law under which the action is brought, but can include all of the above, as well as attorney fees and costs.

Many California Superior Courts offer ADR programs, such as early neutral evaluation, judicial settlement conferences, and volunteer mediation panels. California courts favour ADR and often order mediation (and provide low-cost options) and almost always order a mandatory settlement conference with a judge or experienced lawyer before trial. Parties can also choose private mediation or arbitration services outside the court system, which may involve hiring private mediators or arbitrators, who are often retired judges.

Judicial approval is required for a California class or representative action settlement in a two-step process: first, preliminary approval, then final approval, following a formal noticed motion and hearing. The court examines if the settlement is fair, adequate, and reasonable to the class members, considering the risks and costs of litigation. The court may reject a settlement agreed to by the parties if it does not believe that the settlement terms are in the best interests of the class as a whole. Notice of the settlement must be provided to class members, who have the opportunity to opt out of the settlement.

California allows arbitration provisions in contracts that can force class and representative actions into arbitration, often on an individual basis, which can eliminate the representative claims. Recent law prohibits clauses that require the application of law other than California’s or require that arbitration take place outside of California. Certain remedies, such as public injunctive relief under PAGA actions, cannot be waived through an arbitration agreement and must be sought (or defended against) in court.

In a California class or representative action, the judgment can be a final judgment based on either a court-approved settlement or a verdict following a trial. The judgment may award monetary compensation or provide injunctive relief if the plaintiff wins, and it can also issue a court-approved dismissal if the defendant prevails. The vast majority of class and representative actions reach judgment through pre-trial settlement, rather than a post-trial verdict.

In a settlement, the court first evaluates the settlement’s overall fairness and provides preliminary approval. Then, class members are informed of the proposed settlement, their potential recovery, and how to object. Then, following a noticed motion, the court holds a hearing to consider any objections and to determine if the settlement is “fair, adequate, and reasonable.” If the court grants final approval, it enters a judgment based on the terms of the settlement, which include provisions for awarding relief to the class members. It often includes the retention of a professional claims administrator who is responsible for reviewing and verifying claims from class members and administering the settlement funds. Class members are allowed to “opt out” within a certain period of time and not be bound by the terms of the settlement. If class members do not timely “opt-out,” their claims are extinguished and their only remedies are those set forth in the court-approved settlement. The judgment retains the court’s jurisdiction to enforce the settlement, should that be necessary.

A judgment after trial is similar, except that rather than terms being provided by settlement, the judge or jury determines the applicable remedy(ies). 

The 2024 amendments to PAGA provide employers with increased ability to cure alleged violations and avoid litigation, new caps on penalties that can be imposed, statutory requirements that PAGA cases be manageable, and limits on statutory standing so that a PAGA plaintiff can now only seek penalties for violations that they personally suffered and which affected other employees. It remains to be seen how these reforms will impact PAGA class actions in California.

Potential legislative reform is foreshadowed in respect of litigation finance and its disclosure. Proposed legislation regarding disclosure of third-party litigation has been introduced, but not yet enacted, in California. While state court initial disclosures and a specific Northern District of California rule currently exist, more legislation and regulation are likely in the coming years.

The most noteworthy trend in California collective redress and class actions of the past several years has been the explosion of PAGA class actions, culminating in over 5,000 PAGA class actions filed in California in 2023 and legislative reform occurring in 2024. Increased activity in respect of Labour Code enforcement claims under PAGA continues to be a key trend in 2025.