Filed 2/15/19; Opinion following transfer from Supreme Court

                                 CERTIFIED FOR PUBLICATION

    OPINION AFTER TRANSFER FROM THE CALIFORNIA SUPREME COURT

                  COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                             DIVISION ONE

                                      STATE OF CALIFORNIA



JORGE FIERRO et al.,                                      D071904

        Plaintiffs and Appellants,

        v.                                                (Super. Ct. No. 37-2016-00030068-
                                                          CU-OE-CTL)
LANDRY'S RESTAURANT INC.,

        Defendant and Respondent.


        APPEAL from an order of the Superior Court of San Diego County, John S.

Meyer, Judge. Reversed and remanded with directions.



        Righetti Glugoski, Matthew Righetti and John J. Glugoski for Plaintiffs and

Appellants.

        Law Offices of Mary E. Lynch, Mary E. Lynch; Sheppard, Mullin, Richter &

Hampton, Ryan D. McCortney, and Jason M. Guyser for Defendants and Respondents.
       Plaintiff Jorge Fierro filed the underlying action against defendant Landry's

Restaurants, Inc.,1 seeking remedies for what Fierro alleges to be Landry's Restaurants's

violations of specified California labor laws and wage orders. Fierro asserts claims on

behalf of himself and on behalf of a class of individuals that he alleges is similarly

situated. Landry's Restaurants demurred to the complaint on the basis that each of the

causes of action is barred by the applicable statute of limitations.

       As to Fierro's individual claims, the trial court overruled the demurrer, concluding

that the statute of limitations defense did not appear affirmatively on the face of the

complaint. As to the class claims, the trial court sustained the demurrer without leave to

amend on the basis that a prior class action with identical class claims against Landry's

Restaurants had been dismissed for failure to bring the case to trial in five years as

required by Code of Civil Procedure2 sections 583.310 and 583.360.3 Under the "death

knell" doctrine, Fierro appeals from that portion of the order sustaining without leave to

amend the demurrer to the class claims.4



1     The complaint identifies "Landry's Restaurants Inc." as the sole named defendant.
The demurrer that resulted in the order on appeal was filed on behalf of defendant
"Landry's, Inc., formerly known as Landry's Restaurants, Inc." ("Landry's Restaurants").

2      Further unidentified statutory references are to the Code of Civil Procedure.

3      An action "shall be brought to trial within five years after the action is
commenced" (§ 583.310); if not, then the court "shall" dismiss the action, either on its
own motion or on the motion of the opposing party, after notice to the parties (§ 583.360,
subd. (a)).

4     Generally, the right to appeal in California is governed by the "one final
judgment" rule, pursuant to which an appeal may be taken only from a final judgment in
                                              2
       Previously, we filed an opinion reversing the order on the basis that the applicable

statutes of limitations on the class claims had been tolled. However, the California

Supreme Court granted review and transferred the matter to this court with directions to

vacate the opinion and to reconsider the cause in light of the United States Supreme

Court's opinion in China Agritech, Inc. v. Resh (2018) __ U.S. __ [138 S.Ct. 1800]

(China Agritech)—an opinion issued following the filing of our opinion but before

issuance of the remittitur. After vacating our decision, we requested and received

supplemental briefing from the parties as to the potential application of China Agritech to

the issues presented in this appeal.

       China Agritech, supra, __ U.S. __ [138 S.Ct. 1800] holds that, upon denial of

class certification, a putative class member may not commence a new class action

asserting the same claim, if the statute of limitations on the claim has run. (Id. at p. __

[138 S.Ct. at p. 1804].) The Court reasoned that the " 'efficiency and economy of

litigation' " which support tolling the statutes of limitations for individual claims during



the entire action. (In re Baycol Cases I and II (2011) 51 Cal.4th 751, 754, 756 (Baycol).)
For example, under the one final judgment rule an order in part sustaining a demurrer
without leave to amend is not appealable. (Evans v. Dabney (1951) 37 Cal.2d 758, 759).
However, the death knell doctrine is an exception to the one final judgment rule.
(Baycol, at p. 757.) It allows an immediate appeal of an order that entirely terminates
class claims while allowing individual claims to proceed. (Id. at pp. 757, 759.) Because
such an order "effectively [rings] the death knell for the class claims," it is essentially "a
final judgment on those claims." (Id. at p. 757; see Daar v. Yellow Cab Co. (1967) 67
Cal.2d 695, 699 [order denying class certification "is tantamount to a dismissal of the
action as to all members of the class other than plaintiff"].) Indeed, because a death knell
order is immediately appealable, " 'a plaintiff who fails to appeal from one loses forever
the right to attack it.' " (Munoz v. Chipotle Mexican Grill, Inc. (2015) 238 Cal.App.4th
291, 308.)

                                              3
the pendency of the initial class action do not support tolling the statutes of limitations for

the class claims. (Id. at p. __ [138 S.Ct. at p. 1806].)

       As we explain, the superior court's stated basis for sustaining the demurrer and

dismissing the class claims is erroneous. As we further explain, in determining whether

the statutes of limitations bar Fierro's class claims, we will conclude that there is no basis

on which to apply equitable (or any other form of) tolling. Although that determination

will result in at least some of the class's claims being time-barred, on the present record,

we cannot say that all of the class's claims are untimely. Thus, we will reverse the order

sustaining Fierro's demurrer without leave to amend and remand for further proceedings

in which the trial court can decide, on a more developed record, issues related to class

certification and/or timeliness of class claims.




                                              4
                                              I.

                  FACTUAL AND PROCEDURAL BACKGROUND5

       In this appeal following the sustaining of a demurrer, we assume the truth of the

properly pleaded factual allegations, facts that reasonably can be inferred from those

expressly pleaded and matters of which judicial notice has been taken. (Schifando v. City

of Los Angeles (2003) 31 Cal.4th 1074, 1081 (Schifando).)

       In the present case, without identifying any specific document, the trial court took

judicial notice "of the documents pertaining to the matter known as Martinez v. Joe's

Crab Shack, L.A. Superior Court Case No. BC377269 [(Martinez)]." The appellant's

appendix contains a request for judicial notice filed by Fierro in support of his opposition

to Landry's Restaurants's demurrer. Fierro requested that the trial court judicially notice

certain documents, each of which pertains to the Martinez action. Based on Landry's

Restaurants's trial court briefing and the register of actions provided in appellant's


5       In summarizing the factual and procedural background, both parties failed to
support numerous factual assertions with citations, or at times accurate citations, to the
record on appeal as required by California Rules of Court, rule 8.204(a)(1)(C). Our
independent review of the record on appeal has not helped in finding support for some
basic and many extraneous facts contained in the parties' briefs. Absent a party's accurate
record reference or our independent verification, we have not considered the party's
factual recitation. (Rybolt v. Riley (2018) 20 Cal.App.5th 864, 868 [appellate courts may
" 'disregard any factual contention not supported by a proper citation to the record' "];
County of Riverside v. Workers' Compensation Appeals Board (2017) 10 Cal.App.5th
119, 124 [appellate courts " 'ignore' " factual statements without record references].) In
short, we are unable to accept counsel's argument on appeal as facts. (See In re Zeth S.
(2003) 31 Cal.4th 396, 414, fn. 11 ["the unsworn statements of counsel are not
evidence"]; Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 454
["unsworn averments in a memorandum of law prepared by counsel do not constitute
evidence"].)

                                              5
appendix, however, we learned that Landry's Restaurants also filed a request for judicial

notice in support of its demurrer—a document not in the record. Accordingly, we

ordered the superior court file and, on our own motion, augmented the record to include

Landry's Restaurants' November 16, 2016 request that the trial court judicially notice

certain documents related to the Martinez action. (Cal. Rules of Court, rule 8.155(c),

(a).)

        We take judicial notice of the same Martinez documents that were judicially

noticed by the trial court.6 (Evid. Code, § 459, subd. (a).)

A.      The Martinez Action7

        In September 2007, Roberto Martinez filed the Martinez action, seeking to

represent a class of salaried managerial employees who worked at Joe's Crab Shack

restaurants in California. In three causes of action, Martinez alleged claims for: overtime

pay on the basis that class members had been misclassified as exempt employees; and

violations of law or regulations related to meal and rest periods and to wage statements.

Martinez identified the original defendant as Joe's Crab Shack, Inc., and in a March 2008

amendment substituted "Landry's Restaurants, Inc.," for Doe 2.




6      We take judicial notice of the existence of the documents, not the truth of the
matters asserted therein. (Lindsey v. Conteh (2017) 9 Cal.App.5th 1296, 1302, fn. 2.)

7      For ease of reading, we will not use specific dates for the various events. To the
extent certain dates are potentially outcome-determinative for our analysis of Landry's
Restaurants's statute of limitations argument on appeal, we will include the relevant
specific dates in the discussion of tolling at part II.B., post.

                                             6
       In an October 2008 first amended complaint, Martinez, individually and on behalf

of a class of unnamed members, asserted six employment-related causes of action against

Joe's Crab Shack, Inc.

       In March 2010, the Martinez trial court denied without prejudice Martinez's

motion for class certification on the ground that Martinez was not an adequate class

representative. Martinez did not appeal that order.

       On the same day, the court allowed Martinez to file a second amended complaint

that named Martinez, Lisa Saldana, and Steven Kauffman as the plaintiffs and putative

class representatives and named Joe's Crab Shack, Inc., as the defendant.

       In a November 2010 third amended complaint, the court allowed Martinez,

Saldana, and Kauffman to add Craig Eriksen and Chanel Rankin-Stephens as named

plaintiffs and putative class representatives against defendant Joe's Crab Shack, Inc. By

the time of the plaintiffs' motion to certify the class in June 2011, Kauffman was no

longer a plaintiff, and the defendants included Crab Addison, Inc., Ignite Restaurant

Group, Inc., and Landry's Restaurants, Inc.8

       Martinez, Saldana, Eriksen, and Rankin-Stephens moved to certify a plaintiff class

consisting of " '[a]ll persons employed by Defendants in California as a salaried

restaurant employee in a Joe's Crab Shack restaurant at any time since September 7,

2003.' " In May 2012, the Martinez court denied the motion, ruling that the plaintiffs had

8       Neither the parties, the appellant's appendix, nor the judicially noticed documents
tells us what happened to named plaintiff Kauffman or named defendant Joe's Crab
Shack, Inc., or how Crab Addison, Inc., Ignite Restaurant Group, Inc., or Landry's
Restaurants, Inc. became defendants.

                                               7
failed to establish: that their claims were typical of the class; that they could adequately

represent the class; that common questions predominated the claims; and that a class

action was the superior means of resolving the litigation.

       The Martinez plaintiffs appealed, and in November 2014 the Court of Appeal

reversed the order denying class certification. (Martinez v. Joe's Crab Shack Holdings

(2014) 231 Cal.App.4th 362.) The appellate court directed that, on remand, the trial court

reconsider, consistent with specified authority that classwide relief is the preferred

method of resolving wage and hour claims, whether class certification in Martinez would

provide a superior method of resolving the plaintiffs' claims. (Id. at p. 384.)

       By judgment filed in August 2016, the Martinez court dismissed with prejudice all

the claims in the Martinez action and awarded costs to the three named defendants.9 The

Martinez plaintiffs (Martinez, Saldana, Eriksen, and Rankin-Stephens) appealed from the

judgment of dismissal in October 2016. In August 2018, the Court of Appeal affirmed

the dismissal on the basis that the plaintiffs did not bring the case to trial within the

statutorily prescribed time period under section 583.310 et seq. (Martinez v. Landry's

Restaurants, Inc. (2018) 26 Cal.App.5th 783.)

9        Fierro tells us that the "Martinez trial court never got to the issue of whether
class certification was appropriate"; i.e., "while the parties were preparing for class
certification, the Martinez trial court dismissed the action for failure to bring the action
to trial within five years after commencement pursuant to . . . § 583.310[] et seq."
Landry's Restaurants tells us that "[n]o class was ever certified, and the defendants in the
Martinez action eventually filed a motion to dismiss the case on the grounds that the
action was not brought to trial within five years after commencement." The parties have
not provided record references for these statements, and our independent review of the
record has not confirmed these statements; thus, we do not consider them. (See fn. 5,
ante.)

                                               8
B.     Fierro's Present Action

       Within days of the dismissal of Martinez, Fierro filed the present action on

August 29, 2016. Fierro asserts individual and class claims based on the underlying

allegation that Landry's Restaurants "improperly and illegally mis[]classified" Fierro and

the members of the class "as 'exempt' managerial/executive employees when, in fact, they

were 'non-exempt' non-managerial employees according to California law." According

to Fierro, under claims alleged in five causes of action, this misclassification entitles him

and the class he seeks to represent to recover unpaid wages and penalties. Fierro defines

the alleged class as: "All California based salaried restaurant employees . . . who worked

at any time from September 7, 2003 until the date of class certification at any of the

restaurants in the State of California owned, operated and/or acquired by defendants."

       Fierro alleges that he worked for Landry's Restaurants as a salaried restaurant

employee within four years prior to the filing of the Martinez action.10 As particularly

relevant to the issues presented to the trial court and briefed by the parties on appeal,

Fierro affirmatively alleges in the complaint:

          "The filing of [the Martinez action] on September 7, 2007[,] has
          tolled the statute of limitations as to [Fierro] and the class he seeks
          to represent. The class period covered by this Complaint based on
          the tolling of the statute by [Martinez] is September 7, 2003[,] to the
          present." (Italics added.)



10     Landry's Restaurants tells us that Fierro "concedes within his Complaint that he
did not work after September 7, 2007," citing page 6 of the appellant's appendix. Page 6
of the appendix is page 2 of Fierro's complaint; and since it contains no such concession,
we do not consider Landry's Restaurants's unsupported statement. (See fn. 5, ante.)

                                              9
Landry's Restaurants describes the present action as Fierro's attempt "to revive the same

class claims from Martinez covering the exact same class period."

       Disagreeing with Fierro's allegation regarding the tolling of the applicable statutes

of limitations, Landry's Restaurants demurred to each cause of action in Fierro's

complaint on the basis that each "is barred by the statute of limitations."11 On the same

statute of limitations grounds, Landry's Restaurants alternatively moved to strike the two

quoted sentences in the immediately preceding paragraph and the clause "from

September 7, 2003" in the definition of the class quoted two paragraphs above.

       In support of its demurrer and motion to strike, Landry's Restaurants presented

two arguments as to the class claims, both of which it repeats on appeal.

       First, Landry's Restaurants acknowledges that the filing of a class action tolls the

running of the applicable statutes of limitations as to the individual claims of all putative

class members until class certification is denied—after which time all unnamed class

members may either seek to intervene in the surviving individual case or file a new

action. Our state Supreme Court has summarized this tolling principle as follows:

"[U]nder limited circumstances, if class certification is denied, the statute of limitations is

tolled from the time of commencement of the suit to the time of denial of certification for

all purported members of the class who either make timely motions to intervene in the


11     Landry's Restaurants tells us that the statutes of limitations on Fierro's claims are
one, three, or four years, depending on the specific claim. Fierro does not argue
otherwise. Accordingly, we accept for purposes of this appeal, without deciding, that the
applicable statutes of limitations for the class claims in Fierro's complaint are between
one and four years.

                                              10
surviving individual action ([American Pipe & Construction Co. v. Utah (1974) 414 U.S.

538,] 552-553 [(American Pipe)]), or who timely file their individual actions (Crown,

Cork & Seal Co. v. Parker (1983) 462 U.S. 345, 350 [(Crown, Cork)])." (Jolly v. Eli

Lilly & Co. (1988) 44 Cal.3d 1103, 1119 (Jolly).) In California, this equitable doctrine is

often referred to as "American Pipe tolling." (See, e.g., Falk v. Children's Hospital Los

Angeles (2015) 237 Cal.App.4th 1454 (Falk); Batze v. Safeway, Inc. (2017) 10

Cal.App.5th 440, 482-483; Perkin v. San Diego Gas & Electric Co. (2014) 225

Cal.App.4th 492, 501-505; Becker v. McMillin Construction Co. (1991) 226 Cal.App.3d

1493, 1499-1500.) Landry's Restaurants's position is that, upon a proper application of

American Pipe tolling, only the statutes of limitations on Fierro's individual claims can be

tolled; in particular, the statutes of limitations on Fierro's class claims have run, and the

class claims are time-barred.

       Second, according to Landry's Restaurants, regardless of the application of

American Pipe tolling, the class claims fail for another reason. Landry's Restaurants

argues that, because the Martinez action—including the class claims—was dismissed for

failure to bring the action to trial within five years under section 538.310 et seq., the class

claims cannot be resurrected in a new action. Landry's Restaurants contends that

American Pipe tolling is an equitable doctrine that does not affect the express statutory

language which makes a dismissal under section 538.360 "mandatory and . . . not subject

to extension, excuse, or exception except as expressly provided by statute," upon the

requisite showing. (§ 538.360, subd. (b).)



                                              11
       Following an opposition by Fierro, a reply by Landry's Restaurants, and oral

argument, the superior court overruled the demurrer as to Fierro's individual claims and

sustained the demurrer without leave to amend as to Fierro's class claims. After applying

American Pipe tolling, the court determined that Landry's Restaurants did not establish as

a matter of law that the pertinent statutes of limitations barred any of Fierro's claims.12

On this basis, the court overruled Landry's Restaurants's demurrer as to Fierro's

individual claims. With regard to Fierro's class claims, however, the court ruled that,

regardless whether American Pipe tolling might apply to preclude the running of the

statutes of limitations, the Martinez court's section 583.360 dismissal for failure to

prosecute was a "determination that [the] class action is now barred" and "there is no

authority to revive the dismissed class claims in [this] subsequent lawsuit."13

       Fierro timely appealed from the order overruling the demurrer as to Fierro's

individual claims and sustaining the demurrer without leave to amend as to Fierro's class

claims. Under the death knell doctrine, we have jurisdiction to review that portion of the

order sustaining the demurrer as to the class claims. (See fn. 4, ante.)




12     The court expressly limited its ruling on the statute of limitations defense to its
order on Landry's Restaurants's demurrer; i.e., the ruling was not a final determination on
the merits of the defense.

13     The court denied as moot Landry's Restaurants's motion to strike.

                                             12
                                              II.

                                       DISCUSSION

       The sole issue on appeal is whether the trial court erred in sustaining without leave

to amend the class claims in Fierro's complaint.

       After assuming the truth of the allegations in the complaint, facts that can be

inferred from those pleaded, and judicially noticed matters (Schifando, supra, 31 Cal.4th

at p. 1081), "we examine the operative complaint de novo to determine whether it alleges

facts sufficient to state a cause of action under any legal theory" (T.H. v. Novartis

Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162). On appeal, we review the trial court's

ruling, not the reasons stated for the ruling. (Rappleyea v. Campbell (1994) 8 Cal.4th

975, 980-981 (Rappleyea) [even where trial court's legal reasoning is erroneous, the

ruling will be affirmed if it can be supported by any legal theory]; Davey v. Southern

Pacific Co. (1897) 116 Cal. 325, 329-330 [same].) The rationale for this consideration is

that there can be no prejudice from an error in logic or reasoning if the decision itself is

correct. (Mike Davidov Co. v. Issod (2000) 78 Cal.App.4th 597, 610.)

       As we explain, the trial court erred in applying the section 583.360 dismissal of

the Martinez action as a bar to Fierro's class claims. However, as we further explain,

nothing in the Martinez action (or otherwise) tolled the statutes of limitations on Fierro's

class claims. Thus, the only class claims that will be timely are those that accrued within

the applicable limitation periods preceding the August 2016 filing of Fierro's complaint.

Since the limited facts we may consider on appeal do not disclose whether some or all of

the claims in any one cause of action may be time-barred, the trial court erred in

                                              13
sustaining without leave to amend the demurrer as to each cause of action; and we will

reverse the trial court's order on this basis.

A.     The Dismissal of the Martinez Action Is Not a Basis on Which to Have Dismissed
       the Class Claims in the Present Action

       The trial court ruled that, because the Martinez court dismissed the same class

claims as Fierro alleges in the present action pursuant to section 583.360 (for failure to

have brought the action to trial within five years, in violation of § 583.310 et seq.), the

class claims in the present action are barred. As proffered by Landry's Restaurants and

accepted by the trial court, the reasoning behind such a ruling is that the equitable

principles associated with the application of American Pipe tolling cannot revive claims

that were dismissed under a statute that does not allow for exceptions unless "expressly

provided by statute." (§ 583.360, subd. (b), italics added ["The requirements of this

article are mandatory and are not subject to extension, excuse, or exception except as

expressly provided by statute."].)

       Neither the facts nor the law supports the trial court's ruling.

       Factually, the record does not suggest—let alone establish by properly pleaded

factual allegations or matters of which judicial notice has been taken—that the Martinez

action was dismissed under section 583.360. In the trial court and on appeal, both

Landry's Restaurants and Fierro state that the failure to prosecute was the basis of the

dismissal in Martinez. However, in support of this statement on appeal, both Landry's

Restaurants and Fierro cite exclusively to the judgment in the Martinez action which

provides only that the claims were "dismissed with prejudice"; there is no mention of the


                                                 14
basis of the dismissal.14 Thus, because the record does not contain substantial evidence

to support a finding that the Martinez action was dismissed under section 583.360 for

failure to prosecute, the trial court erred in sustaining the demurrer on this basis.

       That said, Fierro, Landry's Restaurants, and the trial court all have proceeded, both

in the trial court and now on appeal, with the understanding that the Martinez action was

dismissed under section 583.360 for failure to have brought the action to trial within the

statutorily required period. In addition, in August 2018—which was after a year and a

half after the trial court sustained Landry's Restaurants's demurrer and months after our

original (now vacated) opinion in this appeal—the Court of Appeal affirmed the

dismissal of the judgment in the Martinez action under section 583.310 et seq. (Martinez

v. Landry's Restaurants, Inc., supra, 26 Cal.App.5th 783.) Thus, we will proceed with

the understanding that the Martinez action was dismissed for failure to prosecute.

Nonetheless, the trial court still erred as a matter of law in sustaining Landry's

Restaurants's demurrer on this basis.

       A "judgment dismissing the prior action for want of prosecution is not one upon

the merits [citations] and it does not bar a subsequent action upon the same cause." (Lord

v. Garland (1946) 27 Cal.2d 840, 850 (Lord).) That is because "under California law, a

14       In full, the judgment in the Martinez action provides: "IT IS HEREBY
ORDERED, ADJUDGED AND DECREED that the claims in this action of Plaintiffs
Roberto Martinez, Lisa Saldana, Craig Eriksen and Chanel Rankin-Stephens, and each of
them, are dismissed with prejudice, and that Plaintiffs shall take nothing by their
complaint. [¶] Defendants Crab Addison, Inc. (erroneously identified as 'Joe's Crab
Shack'), Ignite Restaurant Group, Inc. (formerly known as 'Joe's Crab Shack Holdings,
Inc.'), and Landry's Restaurants, Inc. are awarded costs against Plaintiffs costs of
$______." (Sic.)

                                              15
dismissal for failure to prosecute is not a final judgment on the merits." (Hardy v.

America's Best Home Loans (2014) 232 Cal.App.4th 795, 803 (Hardy).15) More to the

point, a judgment of dismissal based on the failure to prosecute is not a final judgment for

purposes of res judicata or collateral estoppel. (Hardy, at p. 803; accord, fn. 15, ante.)

Here, because we are proceeding under the assumption that the dismissal of the Martinez

action was based on a failure to prosecute, the judgment in the Martinez action is not a

bar to Fierro's class claims.

       Accordingly, the trial court erred in ruling that, based on the judgment of dismissal

in the Martinez action, section 583.310 et seq. bar the class claims in the present

action.16


15      In support of this ruling, Hardy cited Lord, supra, 27 Cal.2d at p. 850 and
"Gonsalves v. Bank of America (1940) 16 Cal.2d 169, 172-173 ['it is a fundamental rule
that a judgment is not res judicata unless it is on the merits, and a dismissal for delay in
prosecution is not']; Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187, 215,
fn. 33 ['The very definition of res judicata contemplates a judgment on the merits, and
dismissals for lack of prosecution under [§ 583.310] are not on the merits.']; Ashworth v.
Memorial Hospital (1988) 206 Cal.App.3d 1046, 1053 [same]; Mattern v. Carberry
(1960) 186 Cal.App.2d 570, 572 [same].)" (Hardy, supra, 232 Cal.App.4th at p. 803.)

16     In an argument related to whether the judgment in the Martinez action barred
Fierro's class claims, Fierro suggests that if the judgment had such a preclusive effect, he
would be denied due process on the basis that he has "the right . . . to bring a class action
under California law." However, the authority Fierro cites does not support his
suggestion. He argues that "group litigation and the class action procedure implicate the
protections afforded by the due process clauses of the 5th and 14th Amendments to the
U.S. Constitution," citing rule 23 of the Federal Rules of Civil Procedure (28 U.S.C.) and
federal authorities that discuss the due process rights of unnamed class members to be
adequately represented and to receive notice and an opportunity to opt out of a certified
class. Neither the cited authorities nor our independent research has disclosed a due
process right to bring a class action under California law, and we express no opinion on
such a right under federal law.

                                             16
B.      American Pipe Tolling Does Not Apply to Class Claims

        Because we review the ruling of the trial court, not the reasons therefor

(Rappleyea, supra, 8 Cal.4th at pp. 980-981), we next consider Landry's Restaurants's

argument on appeal that, upon proper application of American Pipe tolling, the pertinent

statutes of limitations bar Fierro's class claims.

        In the complaint, Fierro alleges that the filing of the Martinez action on

September 7, 2007, "has tolled the statute of limitations as to [Fierro] and the class he

seeks to represent. The class period covered by this Complaint based on the tolling of the

statute by [the Martinez action] is September 7, 2003[,] to the present." Without tolling,

according to Landry's Restaurants, the applicable statute of limitations bars each of the

class claims Fierro alleges in his complaint.

        Before we determine whether application of the American Pipe tolling doctrine

saves the class claims, we summarize the relevant events and the specific dates on which

they occurred, as follows:

      September 7, 2007—Martinez files the Martinez action;

      March 12, 2010—the Martinez trial court denies without prejudice Martinez's

        motion to certify the putative class on the basis that he is not an adequate class

        representative;




                                                17
    March 12, 2010—Martinez files a second amended complaint adding two new

       putative class representatives, Saldana and Kauffman;17

    November 23, 2010—Martinez, Saldana, and Kauffman file a third amended

       complaint adding two named putative class representatives, Eriksen and Rankel-

       Stephens;18

    May 23, 2012—the Martinez court denies the plaintiffs' motion to certify the class;

    July 13, 2012—the named plaintiffs in Martinez appeal from the order denying

       their motion to certify the class;

    November 10, 2014—the Court of Appeal reverses the order denying class

       certification and directs the Martinez court to reconsider whether to certify the

       class under a different standard;

    August 24, 2016—the Martinez court enters a judgment dismissing the action with

       prejudice;

    August 29, 2016—Fierro files the present action; and

    August 1, 2018—the Court of Appeal affirms the dismissal of judgment in the

       Martinez action.




17     Since the first and second amended complaints contain the same causes of action,
a reasonable inference is that Martinez added the two additional plaintiffs in an effort to
proffer adequate class representatives.

18     Since the second and third amended complaints contain the same causes of action,
a reasonable inference is that Martinez, Saldana, and Kauffman added the two plaintiffs
in an effort to proffer adequate class representatives.

                                             18
We have assumed that the applicable statutes of limitations for the claims in Fierro's

complaint are between one and four years. (See fn. 11, ante.)

       Landry's Restaurants's argument on appeal is straightforward: At no time have the

statutes of limitations on Fierro's class claims been tolled, and Fierro filed the present

action on August 29, 2016.

       Landry's Restaurants acknowledges that, "under limited circumstances, if class

certification is denied, the statute of limitations is tolled from the time of commencement

of the suit to the time of denial of certification for all purported members of the class who

either make timely motions to intervene in the surviving individual action [citing

American Pipe, supra, 414 U.S. at pp. 552-553], or who timely file their individual

actions [citing Crown, Cork, supra, 462 U.S. at p. 350]." (Jolly, supra, 44 Cal.3d at

p. 1119, italics added.) Thus, under California law, the tolling described in Jolly (based

on American Pipe and Crown, Cork) applies only to individual claims. (Ibid.)

       As we explain, we agree with Landry's Restaurants that American Pipe tolling

does not apply to any later class claims that may be asserted by the purported class

member who files a new action; if the purported class member files a new class action

after the expiration of the applicable statute of limitations on the class's claim, then the

claim is barred. In reaching this conclusion, we disagree with the contrary conclusion

reached in Falk, which applied American Pipe tolling to class claims in successive

actions. (Falk, supra, 237 Cal.App.4th at p. 1470.)

       We approach our analysis with certain directives from our state Supreme Court.

Initially, in the absence of controlling state authority, we look to the federal courts'

                                              19
application of class action law "to ensure fairness in the resolution of class action suits."

(Jolly, supra, 44 Cal.3d at p. 1118.) However, where the federal courts' application of

class action law is based on federal procedures that are entirely different from or

inconsistent with California procedures that ensure fairness, we are under no obligation to

apply the federal authorities. (Id. at p. 1119.)

       At the time Falk was decided, the federal Courts of Appeals were divided over

whether American Pipe tolling saved otherwise untimely successive class claims.

(China Agritech, supra, __ U.S. at p. __ [138 S.Ct. at pp. 1805-1806 [cases collected].)

As relevant to the present appeal, the Third Circuit and Ninth Circuits had applied

American Pipe tolling to save such claims in certain circumstances. (Yang v. Odom

(3d Cir. 2004) 392 F.3d 97, 112 (Yang), abrogated in part by China Agritech, supra, __

U.S. at p. __ [138 S.Ct. at p. 1804]; Catholic Social Services, Inc. v. I.N.S. (9th Cir. 2000)

232 F.3d 1139, 1149 (en banc) (Catholic Social Services), abrogated in part by

China Agritech, supra, __ U.S. at p. __ [138 S.Ct. at p. 1804].) The relevance, as we

discuss post, is that the Court of Appeal in Falk, supra, 237 Cal.App.4th at p. 1470,

expressly relied on Yang and Catholic Social Services to "allow[] 'piggybacking' of class

actions" to save otherwise time-barred successive class claims in situations like the

present appeal. (Cf. Yang, at p. 112; Catholic Social Services, at p. 1149.) Thus, at the

time we issued our original opinion in this appeal, there was state case authority (Falk),

based on longstanding federal case authority (Yang and Catholic Social Services, cited in




                                              20
Falk19), that allowed the application of American Pipe tolling to save Fierro's

time-barred class claims. Now, we are able to approach the issue with the benefit of a

unified ruling as to the federal courts' application of class action law with regard to the

application of American Pipe tolling to successive class actions—a ruling that calls into

question Falk, the applicable state authority on which we previously relied.

       Under federal law, during the pendency of a putative class action, American Pipe

tolls the applicable statutes of limitations only for unnamed class members' individual

claims. (China Agritech, supra, __ U.S. at p. __ [138 S.Ct. at p. 1804].) According to

our federal Supreme Court, "if the class fails"—without any distinction on the basis or

cause of the failure—class claims asserted in a later (or "follow-on") federal class action

are timely only if the later class action is filed within the applicable limitation period.

(Ibid.) Guided and informed by China Agritech, the issue is whether the result should be

the same under California law, where certain class procedures are different.20

Accordingly, we consider China Agritech, supra, __ U.S. __ [138 S.Ct. 1800].



19    In addition, at the time, the Sixth Circuit also applied American Pipe tolling to
successive class actions. (Phipps v. Wal-Mart Stores, Inc. (6th Cir. 2015) 792 F.3d 637,
652-653, abrogated by China Agritech, supra, __ U.S. at p. __ [138 S.Ct. at p. 1804].)

20      While nonexhaustive, some of the procedural differences between federal and
state court include:
      In federal court, the denial of class certification is an interlocutory order, not
         reviewable as of right until a final judgment (Microsoft Corp. v. Baker (2017) __
         U.S. __, __ [137 S.Ct. 1702, 1706]) or discretionary interlocutory appeal (Fed.
         Rules Civ. Proc., rule 23(f), U.S.C.); whereas, in California, the death knell
         doctrine allows an immediate appeal of the trial court's denial of class
         certification (or dismissal of class claims) (Baycol, supra, 51 Cal.4th at p. 757;
         see fn. 4, ante).
                                              21
       In February 2011, at the start of the limitation period, plaintiff Dean filed a

securities class action against China Agritech and others. (China Agritech, supra, __

U.S. at p. __ [138 S.Ct. at p. 1804].) After the federal district court denied class

certification on the basis that the named plaintiffs in the amended complaint could not

prove reliance on a classwide basis, the named plaintiffs settled their individual claims,

and the court dismissed Dean's action in September 2012. (Id. at p. __ [138 S.Ct. at

p. 1805].) In October 2012, prior to the expiration of the applicable statute of limitations,

another plaintiff, Smyth, filed a second securities class action against the same

defendants, alleging similar securities claims. (Id. at p. __ [138 S.Ct. at p. 1805].)

Again, the district court denied class certification, this time on the basis that the named

plaintiffs in the amended complaint lacked the required typicality and adequacy; and

again, the named plaintiffs settled their individual claims and dismissed their complaint.

(Id. at p. __ [138 S.Ct. at p. 1805].)

       After the expiration of the applicable statute of limitations, in June 2014 plaintiff

Resh filed a third securities class action against China Agritech and others.

(China Agritech, supra, __ U.S. at p. __ [138 S.Ct. at p. 1805].) The district court

dismissed the action as untimely, ruling that the first two actions (by Dean and Smyth)

did not toll the time to initiate class claims. (Ibid.) On appeal, the federal Court of

      For purposes of res judicata (claim preclusion) or collateral estoppel (issue
        preclusion), in federal court, an order denying class certification is final unless
        reversed on appeal or modified or set aside by the issuing court (see Martin v.
        Martin (1970) 2 Cal.3d 752, 761); whereas, in California, while an appeal is
        pending (or the time to appeal has not yet expired), an order denying class
        certification is not final (see Pellissier v. Title Guarantee & Trust Co. (1929) 208
        Cal. 172, 184).
                                             22
Appeals reversed, concluding that American Pipe tolling applied to successive class

actions. (Ibid.) The Supreme Court granted certiorari. (Ibid.)

       In its opinion, the Court ruled that "American Pipe does not permit the

maintenance of a follow-on class action past expiration of the statute of limitations."

(China Agritech, supra, __ U.S. at p. __ [138 S.Ct. at p. 1804].) In reaching this result,

the Court first ruled that, under American Pipe, only the applicable statutes of limitations

for the unnamed class members to assert their individual claims are tolled in the event of

a denial of class certification. (Id. at p. __ [138 S.Ct. at p. 1804].) In holding that

"American Pipe does not permit a plaintiff who waits out the statute of limitations to

piggyback on an earlier, timely filed class action," the Court explained that, under federal

law: "The 'efficiency and economy of litigation' that support tolling of individual claims,

American Pipe, 414 U.S., at 553, do not support maintenance of untimely successive

class actions; any additional class filings should be made early on, soon after the

commencement of the first action seeking class certification." (Id. at p. __ [138 S.Ct. at

p. 1806].)

       We are persuaded that the efficiency favoring early assertion of competing class

representative claims in the federal system (China Agritech, supra, __ U.S. at p. __ [138

S.Ct. at p. 1807]) is equally applicable to class claims being litigated in California state

courts. Because this federal authority is not considerably different from or inconsistent

with California procedures, its application will not result in unfairness under California

law and will contribute to a more efficient and economical class action procedure.



                                              23
       California trial court judges—who are charged with "acting in a fiduciary capacity

as guardian of the rights of absentee class members" (Luckey v. Superior Court (2014)

228 Cal.App.4th 81, 103)—are empowered with significant and wide-ranging options for

managing class actions.21 Thus, if class treatment is appropriate, all potential class

representatives will be able to come forward prior to the expiration of the applicable

statute(s) of limitations, and the superior court can select the best class representative(s)

and counsel, as well as the most efficient and economical way of resolving the class

claims. Likewise, if the class mechanism is not a viable option, a denial of class

certification will be made early, and the rights of all parties and putative class members

will be determined at the outset of the case.

       Moreover, allowing the tolling of statutes of limitations of class claims (as

encouraged by Fierro) will result in theoretically endless tolling so long as a new named

plaintiff is available to promptly file a new class action complaint each time class

certification is denied. Nothing under California law suggests such an exception to the

21      These available procedures include, but are not limited to: sections 382 (class
actions), 403 (motion to transfer for coordination), 404-404.9 (coordination), and 1048
(consolidation); and California Rules of Court, rules 3.300 (related cases), 3.350
(consolidated cases), 3.400-3.403 (complex cases), 3.500 (coordination of noncomplex
actions), 3.501-3.550 (coordination of complex actions), 3.750-3.751 (complex cases),
and 3.760-3.771 (class actions). Trial courts' application of these tools can ensure that
efficiency and economy prevail in the event of the filing of multiple class actions prior to
the expiration of an applicable statute of limitations; e.g., successive class actions can be
stayed, consolidated, or coordinated as necessary. (Cf. China Agritech, supra, __ U.S. at
p. __ [138 S.Ct. at p. 1811] ["district courts have ample tools at their disposal to manage
the suits, including the ability to stay, consolidate, or transfer proceedings"].) Even the
different procedures between state and federal court identified at footnote 20, ante, do not
suggest, let alone compel, any less efficiency or economy if, as we conclude here, statutes
of limitations for class claims are not tolled in California under American Pipe.

                                                24
application of a statute of limitations for a class claim.22 Stated differently, there is no

basis under California law for potentially unlimited tolling of statutes of limitations

applicable to class action claims.23

       Statutes of limitations, which are the result of legislation, " ' "represent a public

policy about the privilege to litigate." ' " (Grell v. Laci Le Beau Corp. (1999) 73

Cal.App.4th 1300, 1304.) They " 'promote justice by preventing surprises through the

revival of claims that have been allowed to slumber until evidence has been lost,

memories have faded, and witnesses have disappeared,' " thereby "protecting settled

expectations[,] giving stability to transactions[,] promoting the value of diligence[,]

encouraging the prompt enforcement of substantive law[,] avoiding the retrospective

application of contemporary standards[,] and reducing the volume of litigation." (Marin


22     California already has in place a procedure to protect class claims where the trial
court denies certification on the basis that the named plaintiffs are not adequate class
representatives. Under such circumstances, statutes of limitations need not be tolled and
a new action need not be filed, because if new named plaintiffs are available, the court
"should at least afford plaintiffs the opportunity to amend their complaint . . . to add new
individual plaintiffs . . . in order to establish a suitable representative." (La Sala v.
American Sav. & Loan Assn. (1971) 5 Cal.3d 864, 872.) This amendment procedure
" 'prevents a prospective defendant from avoiding a class action by "picking off"
prospective class action plaintiffs one by one, settling each individual claim in an attempt
to disqualify the named plaintiff as a class representative.' " (Payton v. CSI Electrical
Contractors, Inc. (2018) 27 Cal.App.5th 832, 848.)

23     We recognize that wage and hour claims are "eminently suited for class treatment"
(Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1033) and that
"classwide relief remains the preferred method of resolving wage and hour claims"
(Martinez v. Joe's Crab Shack Holdings, supra, 231 Cal.App.4th at p. 384). However,
we reject any suggestion that, just because the class action is an efficient and economical
procedure for managing wage and hour cases, the class action procedure also revives
otherwise untimely wage and hour claims.

                                              25
Healthcare Dist. v. Sutter Health (2002) 103 Cal.App.4th 861, 872; accord, Jolly, supra,

44 Cal.3d at p. 1112 [statutes of limitations "give defendants reasonable repose, that is, to

protect parties from defending stale claims" and "require plaintiffs to diligently pursue

their claims"].) Equitable tolling of class claims under American Pipe, which would

allow an unlimited extension of the expiration of a statute of limitations, does not serve

California's stated purposes of legislating limitation periods. To the contrary, application

of American Pipe tolling to class claims would be inconsistent with the above-described

policies associated with the application of statutes of limitations.

       We acknowledge that, by disallowing American Pipe tolling to class claims, there

may be an increase in class action filings with its related impact on court workload. A

putative class member in one action who wants to preserve the ability to present the

pending claims on behalf of a class must now file a new class action prior to the

expiration of the applicable statutes of limitations, even if there has been no final

determination in the initial action whether the class claims will proceed. However, given

trial judges' ingenuity and creativity and the tools available (e.g., fn. 21, ante), we are

confident that trial courts will continue to be " 'flexib[le]' " and " 'procedurally innovative'

. . . in managing class actions" as directed by our Supreme Court. (Sav-On Drug Stores,

Inc. v. Superior Court (2004) 34 Cal.4th 319, 339, citation omitted; accord, Duran v. U.S.

Bank Nat. Assn. (2014) 59 Cal.4th 1, 33.) In addition, although the potential increase in

class action filings may affect the workload of our trial courts, we believe that proper

management of multiple class actions at an early stage—i.e., before the expiration of the

limitation periods for the class claims—will not materially affect the overall efficiency

                                              26
and economy in litigating class actions. At a minimum, the parties, counsel, and the

court will know exactly what is involved and how the class claims will be managed

before the running of the statutes of limitations on the claims. The alternative, as

encouraged by Fierro, will result in the parties, counsel, and the court facing a potentially

unlimited number of new class actions each time certification is denied in a pending class

action—during all of which time the limitation periods on the class claims remain tolled.

       Fierro relies on Falk, supra, 237 Cal.App.4th 1454, in which the Court of Appeal

held that, in certain circumstances (which include those in the present case), American

Pipe tolling applies to successive class actions, thereby saving otherwise time-barred

class claims. However, as we explain, given China Agritech's abrogation of Third and

Ninth Circuit authority that formed the basis of Falk's application of American Pipe

tolling to successive class actions, Falk is no longer persuasive.

       In Falk, on behalf of a putative class, the named plaintiff asserted employment-

related claims based on alleged violations of the laws associated with overtime, meal

periods, and rest breaks. (Falk, supra, 237 Cal.App.4th at p. 1457.) There had been a

prior class action in which similar class claims had been asserted, and in that action the

court had granted a defense motion for summary judgment on the merits of the named

plaintiff's claims prior to any class certification proceedings. (Id. at pp. 1458, 1461.) In

Falk, the trial court agreed with the defendant's argument that equitable (i.e., American

Pipe) tolling did not apply to the class claims, expressly rejecting the plaintiff's

suggestion that American Pipe, supra, 414 U.S. 538, permitted the " 'piggybacking' of

successive class actions." (Falk, at pp. 1461-1462.)

                                              27
       The Court of Appeal reversed. Disagreeing with the trial court's reasoning, the

appellate court concluded that where, in the initial class action, class certification was

neither denied on reasons that would be inapplicable to a subsequent action (e.g.,

inadequate class representative) nor addressed at all (e.g., the present case), "American

Pipe tolling should apply." (Falk, supra, 237 Cal.App.4th at p. 1465.) Falk relied on

similar rulings of the Third Circuit in Yang, supra, 392 F.3d 97, and the Ninth Circuit in

Catholic Social Services, supra, 232 F.3d 1139 to support its conclusion that, "if class

certification is denied in the earlier action based solely on . . . deficiencies in the putative

class representative—and not on . . . deficiencies in the class itself—then tolling applies"

to "allow[] 'piggybacking' of class actions." (Falk, at p. 1470, italics added.)

       Notably, in reaching its conclusions in China Agritech, supra, __ U.S. __ [138

S.Ct. 1800], the Supreme Court disapproved of Yang and its application of American

Pipe tolling to allow sequential class actions past the limitation period(s) of the class

claim(s). (China Agritech, at p. __, fn. 5 [138 S.Ct. at p. 1809, fn. 5]; Weitzner v. Sanofi

Pasteur Inc. (3d Cir. 2018) 909 F.3d 604, 610 ["we [the court that issued Yang] recognize

the abrogation of Yang v. Odom on this point"].) In reversing Resh v. China Agritech,

Inc. (9th Cir. 2017) 857 F.3d 994,24 the China Agritech opinion also necessarily




24     In his initial briefing on appeal (which was prior to the Supreme Court's opinion in
China Agritech, supra, __ U.S. __ [138 S.Ct. 1800]), Fierro relied heavily on the Ninth
Circuit's opinion in Resh v. China Agritech, Inc., supra, 857 F.3d 994, revd. sub nom.
China Agritech, supra, __ U.S. __ [138 S.Ct. 1800].

                                               28
disapproved of Catholic Social Services, supra, 232 F.3d 1139, the Ninth Circuit's

en banc opinion that formed the basis of Resh, at pages 1001-1002.25

       In sum, Falk relied principally on Yang and Catholic Social Services to allow

tolling of the statutes of limitations on the otherwise untimely class claims; however,

Yang and Catholic Social Services are no longer good law. Accordingly, Fierro's

reliance on Falk is misplaced, and we decline to follow Falk.

C.     Conclusion

       There is no controlling California state authority with regard to whether American

Pipe tolling applies to successive class (as contrasted with individual) claims. Despite

certain differences in state and federal class action procedures, we conclude that applying

the rule of law established China Agritech, supra, __ U.S. at page __ [138 S.Ct. at

p. 1804] in California will ensure the requisite "fairness in the resolution of class action

suits" in California as required by our high court in Jolly, supra, 44 Cal.3d at page 1118.

       In the event a plaintiff class is not certified, the pendency of the putative class's

claim does not toll the applicable statute of limitations to the same class claim alleged in

a later action. Thus, 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. As in federal court, in

25     In fact, in deciding Yang, the Third Circuit also had relied on the Ninth Circuit's
opinion in Catholic Social Services, supra, 232 F.3d 1139. (Yang, supra, 392 F.3d at
p. 107 ["Catholic Social Services can be read as authority for our holding that class
claims should be tolled where the district court denies class certification based on
deficiencies of a class representative"], abrogated in part by China Agritech, supra, __
U.S. at p. __, fn. 5 [138 S.Ct. at p. 1809, fn. 5].)

                                              29
California, "American Pipe[, supra, 414 U.S. 538] does not permit the maintenance of a

follow-on class action past expiration of the statute of limitations." (China Agritech,

supra, __ U.S. at p. __ [138 S.Ct. at p. 1804].)

       The application of this rule to the putative class that Fierro alleges in his complaint

likely will result in some of the absent class members' claims being time-barred.26

Based on this likelihood, Landry's Restaurants contends that it is entitled to an affirmance

of the trial court's order sustaining its demurrer as to the class claims. However, we

cannot determine from the face of the complaint and judicially noticed matters—which is

what we are limited to considering in this appeal from an order sustaining a demurrer—

that any one of the putative class's claims is untimely.27

       Accordingly, even though we hold that American Pipe tolling does not apply to

Fierro's class claims, this holding does not provide a basis on which to affirm the trial

court's ruling that sustained without leave to amend Landry's Restaurants's demurrer to

the class claims in Fierro's complaint. In due course, on a more developed record, the

court can decide issues related to class certification and/or statutes of limitations with the

guidance that American Pipe tolling does not apply to the class claims.




26     For example, as currently alleged by Fierro, the putative class could include an
employee whose claim of a Labor Code violation occurred and accrued more than 13
years before Fierro filed his complaint.

27     For example, as currently alleged by Fierro, the putative class could include an
employee whose claims of a Labor Code violation occurred and accrued a day before
Fierro filed his complaint.

                                              30
                                     III. DISPOSITION

       That portion of the trial court's order sustaining Landry's Restaurants's demurrer

without leave to amend as to Fierro's class claims is reversed, and on remand the court is

instructed to enter an order overruling that portion of Landry's Restaurants's demurrer

directed to the class claims. The parties shall bear their respective costs on appeal. (Cal.

Rules of Court, rule 8.278(a)(5).)



                                                                                   IRION, J.

WE CONCUR:




HUFFMAN, Acting P. J.




HALLER, J.




                                             31
