Filed 9/15/15; pub. order 10/15/15 (see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                    THIRD APPELLATE DISTRICT
                                                 (Sacramento)
                                                       ----



CVS PHARMACY, INC., et al.,                                            C077622

                  Petitioners,                                        (Super. Ct. No.
                                                                34201300156661CUOEGDS)
         v.

THE SUPERIOR COURT OF SACRAMENTO
COUNTY,

                  Respondent;

CHARLENE DELUCA,

                  Real Party in Interest.




         Under what circumstances can a plaintiff who seeks injunctive relief on behalf of a
class of which the plaintiff is not a member obtain precertification discovery to seek out a
legitimate plaintiff to support an action for injunctive relief and monetary damages?
Here, real party in interest Charlene Deluca filed a complaint alleging defendants CVS
Pharmacy, Inc., and Longs Drug Stores California, LLC (CVS), have a corporate policy

                                                        1
of automatically terminating employees who do not work any hours for 45 consecutive
days. Deluca sought injunctive relief to challenge the policy, which she argued
discriminated against qualified individuals with disabilities in violation of the California
Fair Employment and Housing Act. (FEHA; Gov. Code, § 12900 et seq.) Deluca, an
employee of Longs, was not disabled, nor had she been terminated under the alleged 45-
day policy. CVS demurred to Deluca’s complaint. The trial court sustained CVS’s
demurrer based on Deluca’s lack of standing and dismissed her individually without
leave to amend, but granted 90 days’ leave to amend for Deluca to find a substitute
plaintiff and granted her motion to compel discovery of the names and contact
information of current and former CVS employees. CVS filed a petition for writ of
mandate challenging the trial court’s ruling. We issued an alternative writ of mandate.
We find the trial court abused its discretion in allowing the proposed precertification
discovery.
                  FACTUAL AND PROCEDURAL BACKGROUND
       During oral argument on the motion to compel discovery, the trial court made the
following observation, which in a sense encapsulates the issue before us. The trial court
noted Deluca’s lack of standing but stated: “[I]t seems to me that there are some
societally important issues going on here or potentially going on here. But it may well be
that plaintiff’s hunt for an appropriate class plaintiff is . . . a magical unicorn. It’s a
mythical creature that does not exist. We don’t know.” With these words in mind, we
review the background leading to CVS’s petition for a writ of mandate.
Deluca’s Complaint
       Deluca and Kimberly Granzella (plaintiffs) filed a complaint against CVS in
December 2013. They filed an amended complaint in January 2014. Plaintiffs alleged
they were unaware of the fact they were subject to termination by CVS under an official
policy that is discriminatory. Under this policy, CVS automatically terminates



                                                2
employees, including disabled employees, who do not work for 45 consecutive days.
Such a policy has the effect of discriminating against sick and injured workers.
       Deluca missed work due to illness, but never for 45 consecutive days, and was
never terminated under the alleged policy. Deluca worked for Longs, but her
employment had ended by the time the court heard oral argument on the motion to
compel. Granzella was terminated in 2009.
       After plaintiffs filed their amended complaint in January 2014, they served CVS
with a request for production of documents, seeking discovery of other employees
impacted by the termination policy for the purpose of class identification.
District Court
       CVS removed the action to federal district court and filed a motion to dismiss.
CVS moved to dismiss Deluca based on her lack of standing to seek injunctive relief
under the FEHA and failure to exhaust administrative remedies. CVS sought to dismiss
Ganzella’s claims as time-barred. The district court dismissed Granzella’s claims as
untimely, without leave to amend.
       The district court found Deluca lacked standing: “Here, plaintiff Deluca avers in
the complaint that she is ‘threatened with the legal harm of termination under
Defendants’ corporate policy, the 45-day automatic termination policy.’ To support this
assertion, she recounts that she ‘has missed work days due to illness’ in the past but has
managed to ‘return[] to work within 45-days [sic] and . . . work[] consecutive hours
during a 45-day period.’ But, she says, she ‘could sustain a work-related injury, obtain a
medical work release with a lifting restriction, present that to [defendants], and be denied
a return to work.’ As an example of a ‘[s]erious medical problem [or] . . . workplace
injur[y that could] happen at any time,’ plaintiff Deluca cites ‘[a]n appendectomy.’ She
does not allege that she has suffered or presently suffers any injury.
       “Plaintiff Deluca has not established standing. Her unsubstantiated assertions of
misfortunes that ‘could’ befall her are insufficient as a matter of law to ‘show that [she]

                                              3
has sustained or is immediately in danger of sustaining some direct injury as the result of
the challenged official conduct . . . .’ [Citations.] Likewise, her conclusory allegations
that the injuries suffered would be ‘irreparable’ and that legal remedies would be
inadequate are devoid of factual support and, therefore, legally insufficient. [Citation.]”
Because Deluca lacked standing, the district court held it did not have subject matter
jurisdiction over her and remanded her request for injunctive relief.
CVS Demurrer
       Following remand, CVS filed a demurrer to Deluca’s remanded portion of the
amended complaint. CVS argued Deluca lacked standing, failed to allege a cause of
action, and failed to exhaust her administrative remedies with the Department of Fair
Employment and Housing.
       In her opposition, Deluca conceded her lack of standing. However, Deluca
argued, “California public policy favors using the class action procedure, and therefore
the Court should allow class discovery on behalf of all potential class members, even if it
grants Defendants’ Demurrer as to Plaintiff Deluca.” In its reply, CVS argued it was an
abuse of the discovery process for Deluca, who lacked standing and did not assert a cause
of action, to require CVS to disclose the names of current and former employees in an
effort to find a more appropriate plaintiff.
Motion for a Protective Order
       CVS also moved for a protective order to void Deluca’s discovery requests or, in
the alternative, to stay the discovery until after the court ruled on the demurrer. CVS
argued the potential for abuse of the discovery process was overwhelming, where a
placeholder plaintiff, with no standing to seek injunctive relief, sought names and contact
information to find a legitimate plaintiff.
Motion to Compel
       Subsequently, Deluca moved to compel discovery of (1) the names and contact
information of all former employees of CVS in California whose employment was

                                               4
terminated under the automatic termination policy from October 2008 to the present;
(2) a nonredacted version of the list of former employees that was provided to the
Department of Fair Employment and Housing in December 2010 in another lawsuit;
(3) the names and contact information of all former employees of CVS in California
whose employment was terminated under the policy from 2008 through the present and
who were later rehired; and (4) the names and contact information of all current
employees of CVS in California who are subject to the policy. Deluca argued such
discovery was necessary to “seek[] out other putative class members to assist in the
case.”
         CVS opposed the motion, arguing the discovery was not appropriate because the
district court had already determined Deluca lacked standing. Deluca, CVS asserted, was
being used as a Trojan horse to open the doors of discovery to find an appropriate
plaintiff. Nor was there any authority to allow a placeholder plaintiff who never asserted
a cause of action to compel discovery of names and contact information to facilitate a
search for a legitimate plaintiff.
Hearing on Motions
         The trial court consolidated the three motions and heard oral argument. The trial
court acknowledged that Deluca lacked standing to seek injunctive relief and had failed
to allege a cause of action against CVS. However, the trial court stated that if it was
possible to find a potentially appropriate plaintiff, then Deluca should be given the names
she requested. In response to CVS’s argument that such discovery would constitute an
abuse of the discovery process, the court stated: “But even if it was filed in bad faith as a
bad plaintiff, and they knew it, I’m not so sure that would necessarily change the
equation. It might make me less inclined to provide this pre-certification discovery in the
hunt for [a] new plaintiff, but I’m not so sure that it changes the equation for the Court’s
ruling today.”



                                              5
Rulings on the Motions
       Subsequently, the trial court sustained CVS’s demurrer based on Deluca’s lack of
standing and dismissed her individually without leave to amend, but granted 90 days’
leave to amend for Deluca to find a substitute plaintiff. The court denied CVS’s motion
for a protective order and granted Deluca’s motion to compel the names and contact
information of current and former employees.
       The court found Deluca failed to state facts sufficient to constitute a cause of
action for injunctive relief because she had not pleaded an underlying cause of action.
Deluca was not disabled or threatened by immediate harm that would constitute
discriminatory termination. Deluca’s claims were also barred by collateral estoppel.
However, the court granted leave to amend to allow Deluca to conduct precertification
discovery to seek a substitute plaintiff so that a second amended complaint might be filed
in the future.
       In addition, the court noted precertification class discovery is not a matter of right
but rests on considerations of equity and justice. The court must apply a balancing test
and weigh the actual or potential abuse of the class action procedure against the potential
benefits that might be gained. The court stated: “The Court is expressly doing so here
after weighing the respective rights of the parties. The court does not find that Deluca or
her counsel had no reasonable, good faith belief that she lacked standing when the suit
was initiated. In other words, she was not being used as a ‘placeholder’ while a suitable
plaintiff was being sought. In addressing the potential for abuse, the court recognizes that
plaintiffs should not be allowed to abuse the standing requirements of Proposition 64.”)1




1 Under Proposition 64, an individual or entity may bring an unfair business practices
class action only if that individual is a member of the class injured by the practice.
(Bus. & Prof. Code, § 17204; First American Title Ins. Co. v. Superior Court (2007)
146 Cal.App.4th 1564, 1574 (First American).) Proposition 64 was enacted to prevent

                                              6
After considering pertinent case authority, the court exercised its discretion to allow
Deluca 60 to 90 days to find a substitute plaintiff.
       In ruling on the motion to compel discovery, the court noted California courts
favor a strong policy of allowing class actions as a tool of social change. Courts should
only prevent discovery of potential plaintiffs in limited circumstances when there are
expressly identified potential abuses. The court concluded: “There is good cause for the
requested discovery on the ground the court has found that Deluca does not state a cause
of action and has no standing. The potential privacy interests of the employees in having
their contact information released is outweighed by the potential plaintiffs’ interest in
obtaining the contact information. . . . Plaintiff Deluca seeks to protect important
statutory rights of other potential class members who may be unaware of the defendant’s
unwritten ‘automatic termination policy’ and therefore unaware that their statutory rights
under the FEHA may be implicated.” The court limited the discovery to 2010 to 2014.
The court also required an opt-out notice procedure.
Writ Petition
       The trial court, pursuant to a stipulation by CVS and Deluca, stayed all trial court
proceedings, including enforcement of its discovery order, pending a final decision on
CVS’s petition for a writ of mandate. We issued an alternative writ of mandate.
                                       DISCUSSION
                               STANDARD OF REVIEW
       The decision to permit or not permit precertification discovery in a class action is
committed to the wide discretion of the trial court. We review the trial court’s decision
under the deferential abuse of discretion standard. (Pirjada v. Superior Court (2011)
201 Cal.App.4th 1074, 1085.)



abuses of the class action system by prohibiting private attorneys from filing lawsuits
where they have no client who has been injured in fact. (First American, at p. 1577.)

                                              7
       Precertification class discovery is not a matter of right. In making its
determination, the trial court must employ the “Parris balancing test”: weighing the
actual or potential abuse of the class action procedure against the benefits that might be
gained. (Starbucks Corp. v. Superior Court (2011) 194 Cal.App.4th 820, 825
(Starbucks); Parris v. Superior Court (2003) 109 Cal.App.4th 285, 300-301 (Parris).)
       In the present case, the trial court complied with this procedural obligation. The
court performed the weighing test and found neither Deluca nor her counsel lacked a
reasonable, good faith belief that she lacked standing when she filed her complaint. In
addition, the court considered the possibility of abuse and found it outweighed by the
rights and interests of the potential class members for whose benefit Deluca filed her
complaint. Accordingly, the court allowed Deluca time to locate a substitute plaintiff.
We consider whether this ruling constitutes an abuse of discretion given the facts.
                         PRECERTIFICATION DISCOVERY
       We begin with the axiom that the named plaintiff in a class action must be a
member of the class he or she purports to represent. (First American, supra,
146 Cal.App.4th at p. 1573.) However, if the court determines the class representative
lacks standing to represent the class, leave to amend the complaint to redefine the class or
to add a new individual plaintiff, or both, is often granted. (La Sala v. American Sav. &
Loan Assn. (1971) 5 Cal.3d 864, 872.) This rule is usually applied in situations where the
class representative originally had standing but has since lost standing by intervening law
or facts. (In re Tobacco II Cases (2009) 46 Cal.4th 298, 328-329.)
       Here Deluca was never a member of the class. A class representative who is not a
class member or is otherwise unqualified to serve as class representative may, in certain
circumstances, move for precertification discovery for the purpose of identifying a new
class representative. Courts have recognized that such precertification discovery presents
the potential for abuse of the class action procedure, but also implicates the rights and



                                              8
interests of potential class members on whose behalf the complaint was filed. (Safeco
Ins. Co. of America v. Superior Court (2009) 173 Cal.App.4th 814, 828 (Safeco).)
        In Parris, the purpose of discovery was not to identify a substitute class
representative, but to allow the plaintiffs to serve notices on the potential class
representatives informing them of the litigation and requesting information. (Parris,
supra, 109 Cal.App.4th at pp. 290-291.) Parris held that precertification communication
with potential class members was protected free speech and could not be subject to prior
restraint “absent specific evidence of abuse” (id. at p. 298) and “ ‘a showing of direct,
immediate and irreparable harm’ ” (id. at p. 300).
        The moving parties in Parris also sought to compel the disclosure of potential
class members and management personnel. The Parris court held that a party may seek
judicial assistance in communicating with potential class members; however, the court
recognized the “ ‘possibility of abuses in class-action litigation . . . that . . . may implicate
communications with potential class members.’ ” (Parris, supra, 109 Cal.App.4th at
p. 300, quoting Gulf Oil Co. v. Bernard (1981) 452 U.S. 89, 104 [101 S.Ct. 2193, 2202].)
It held that a trial court ruling on a motion to compel precertification discovery to identify
potential class members must “expressly identify any potential abuses of the class action
procedure that may be created if the discovery is permitted and weigh the danger of such
abuses against the rights of the parties under the circumstances.” (Parris, at pp. 300-
301.)
        Parris was followed by Best Buy Stores, L.P. v. Superior Court (2006)
137 Cal.App.4th 772 (Best Buy), cited by the trial court in the present case. In Best Buy,
the class action representative was also the lawyer who filed the complaint. He was
precluded by conflict of interest rules from serving both as class representative and as
counsel for the class. As a consequence he moved for an order compelling the defendant
to serve a notice on potential class members informing them of the litigation and the need
for a new class representative. (Id. at pp. 774-775, 779.) The appellate court held the

                                                9
trial court did not abuse its discretion when it granted a motion for precertification
discovery to find a substitute class representative. (Id. at p. 779.) However, the same
appellate court, in a subsequent case, noted: “Best Buy Stores was not a standing case
and we specifically noted the precertification discovery order furthered the lawyer’s
interest as a plaintiff in the action. [Citation.] . . . Best Buy Stores does not stand for the
proposition that a plaintiff with no interest in the action has a right to discovery to find a
substitute plaintiff to keep the action alive.” (Cryoport Systems v. CNA Ins. Cos. (2007)
149 Cal.App.4th 627, 633-634 (Cryoport Systems).)
       In First American, the appellate court issued a writ of mandate to reverse a
precertification discovery order in a “headless” class action against title insurers that
allegedly paid kickbacks to lenders for referring customers to them. Contrary to the
named plaintiff’s initial pleading, he was unable to prove the defendants ever made any
payments in connection with his purchase of title insurance. Therefore, the plaintiff was
never a member of the class alleged in the complaint. The trial court granted the motion
based on its determination that the plaintiff initially had believed in good faith that he
was a class member. After applying the Parris balancing test, the appellate court found
the trial court abused its discretion in granting the plaintiff discovery to find a new
plaintiff. The court emphasized that the named plaintiff was an acknowledged stranger to
the kickback scheme and refused to allow counsel to use him as a placeholder to obtain
an appropriate plaintiff. In addition, the court noted unnamed class representatives were
free to file their own future actions, if they desired. (First American, supra,
146 Cal.App.4th at pp. 1571-1574, 1576-1577.) According to the court, “In short, the
potential for abuse of the class action procedure is overwhelming, while the interests of
the real parties in interest are minimal. Precertification discovery under these
circumstances would be an abuse of discretion.” (Id. at p. 1577; see Starbucks, supra,
194 Cal.App.4th at pp. 825-826.)



                                              10
       The court in Cryoport Systems affirmed the sustaining of a demurrer against a
complaint for unfair business practices in which the plaintiff failed to allege that it had
standing. (Cryoport Systems, supra, 149 Cal.App.4th at p. 629.) The court held that the
plaintiff waived any argument that it was entitled to conduct discovery to identify a new
class representative because it failed to move for discovery in the trial court and failed to
adequately articulate its argument on appeal. (Id. at p. 633.) However, the court also
addressed the argument on the merits. After reviewing the facts, the court determined the
potential for abuse of discovery was great because the plaintiff lacked interest in the
litigation, and the potential class members’ interests were minimal because the plaintiff
had not shown that a class action was their only avenue for relief. Therefore, the
potential for abuse of the class action procedure far outweighed the interests of potential
class members and to allow precertification discovery would be an abuse of discretion.
(Id. at p. 634.)
       In the present case, Deluca relies heavily on CashCall, Inc. v. Superior Court
(2008) 159 Cal.App.4th 273 (CashCall), which followed a year later. In CashCall, the
plaintiffs brought a class action against a collection agency that admittedly engaged in
illegal, secret monitoring of telephone calls involving CashCall debtors. Through
discovery, the originally named plaintiffs determined that the collection agency had not
monitored their calls. The plaintiffs moved for an order compelling the defendant to
identify potential class members whose calls had been secretly monitored and who could
serve as class representatives. The court granted the motion and ordered the defendant to
provide the information to a third party administrator who could serve them notices. (Id.
at pp. 279-283.)
       On appeal, the court rejected the defendant’s argument that in cases where the
plaintiffs have never been class members, a bright-line rule precluding precertification
discovery to identify class members should apply and the Parris weighing test should be
inapplicable. (CashCall, supra, 159 Cal.App.4th at pp. 285-286, 290-291.) The court

                                              11
stated that a class action plaintiff without standing should be allowed to move for, and
potentially obtain, precertification discovery to identify potential class members. (Id. at
pp. 287-288.) In affirming the discovery under the Parris balancing test, the court
described a “Catch 22” absurdity: the only conceivable class members were debtors who
were unaware of the secret monitoring. How then would they know to join in the
litigation? (Id. at p. 280.) Under the facts before it, the court concluded the plaintiffs
could engage in discovery to ascertain replacement class representatives. “Without that
precertification discovery, the class of 551 members whose calls were secretly monitored
would be unable to obtain any relief for the alleged violations of their privacy rights.”
(Id. at p. 291.)
       In Safeco, supra, 173 Cal.App.4th 814, the appellate court cited CashCall
extensively. In Safeco, a class action was brought against automobile insurers for alleged
violation of the unfair competition law for purportedly charging higher premiums to
drivers with no previous coverage or a lack of continuous coverage. The class
representative, who was not a member of the class she purported to represent, moved for
precertification discovery to find a new class representative. The trial court granted the
motion and the insurers challenged the order. (Id. at pp. 816-820.) The appellate court
cited CashCall in rejecting the insurer’s argument that a plaintiff who was never a
member of the class cannot be allowed to conduct precertification discovery. (Id. at
p. 831.)
       In addition, the court found the insurer failed to show an abuse of discretion under
the Parris balancing test: “We conclude that the trial court did not abuse its discretion in
this regard. The court reasonably concluded that the rights of the class members in these
circumstances are substantial. As was the case in CashCall [citation], and unlike First
American [citation], the circumstances here make it likely that class members would be
denied relief if precertification discovery were not allowed and the class action were
dismissed. Those circumstances include the difficulty for an individual class member of

                                              12
determining whether his or her lack of prior insurance or lack of continuous coverage
resulted in a premium surcharge, the potential statute of limitations bar, and the absence
of any other action or enforcement proceeding that could provide relief. The trial court
has considerable discretion in evaluating the evidence and making these determinations.
Moreover, the court’s determination that plaintiffs’ counsel had presented a strong offer
of proof on the merits of the complaint also supports the conclusion that the rights of the
class members are substantial.” (Safeco, supra, 173 Cal.App.4th at p. 834.) In addition,
the court noted the trial court did not find the plaintiff or her attorney “had no reasonable,
good faith belief that she had standing when she was first substituted as a plaintiff, but
instead concluded that she ‘may have been substituted as the named plaintiff in good
faith.’ ” (Id. at p. 830.)
       Most recently, in Starbucks, three job applicants brought a class action alleging
that Starbucks illegally asked about marijuana convictions more than two years old. In a
previous opinion, the appellate court held the real parties in interest did not have standing
to represent the proposed class because none had any marijuana convictions to reveal.
The court declined to turn the litigation into a “ ‘veritable financial bonanza for litigants
like [real parties in interest] who had no fear of stigmatizing marijuana convictions.’
[Citation.]” (Starbucks, supra, 194 Cal.App.4th at p. 822.) However, the trial court
allowed the real parties in interest to file an amended complaint and allowed further
discovery to find a suitable class representative. The trial court ordered Starbucks to
randomly review job applications until it identified job applicants with prior marijuana
convictions and to provide the names to counsel unless they affirmatively opted out to a
neutral administrator. (Id. at p. 823.)
       The appellate court noted the irony of the situation: “Can a purported remedy
cause the very disease it is supposed to prevent? In this so-called ‘headless’ class action,
the answer regrettably is yes.” (Starbucks, supra, 194 Cal.App.4th at p. 822.) The
Legislature reformed the state’s marijuana laws to require the destruction of all records of

                                              13
minor marijuana convictions more than two years old and prohibited employers from
asking about such convictions. (Ibid.) However, by providing for the disclosure of job
applicants with minor marijuana convictions, the discovery order ironically violated the
very marijuana reform legislation the class action purported to enforce. (Id. at p. 823.)
After discussing the manifest harm and minimal benefit, the appellate court found the
trial court abused its discretion in allowing the proposed precertification discovery. (Id.
at p. 828, citing First American, supra, 146 Cal.App.4th 1564 and Cryoport Systems,
supra, 149 Cal.App.4th at p. 634.)
       The court also distinguished CashCall, where potential class members were
unaware of illegal, secret monitoring of telephone calls: “Here, in contrast, Starbucks’s
job applicants who had marijuana convictions know about their own previous convictions
and about the fact that they had applied for a job at Starbucks. They are free to effectuate
the legislative purposes underlying Labor Code section 432.8 by bringing individual
actions . . . .” (Starbucks, supra, 194 Cal.App.4th at p. 829.) The court declined
Starbucks’s request to disavow CashCall: “We see no need to revisit CashCall, or to
adopt a blanket rule against headless class discovery, as Starbucks seeks here. In the
context of this case, the Parris balancing test works to prevent the types of abuses
Starbucks decries. We do not roam through the case books ‘ “as knights errant amici
searching for deficiencies” ’ that do not affect the outcome of the matter before us.
[Citation.]” (Starbucks, at p. 830.)
            DELUCA’S PRECERTIFICATION DISCOVERY MOTION
       Where does this leave Deluca’s request for precertification discovery? We begin
by considering the factors to be balanced under the Parris test.
       We note Deluca was never a member of the class she sought to represent. She
does not claim a disability and CVS did not terminate her. We are hard pressed to
explain why the trial court stated it “does not find that Deluca or her counsel had no
reasonable, good faith belief that she lacked standing when the suit was initiated.” There

                                             14
is no evidence in the record that Deluca had any reason to believe she was a victim of the
alleged termination policy when she filed suit. In Best Buy, cited by the trial court, the
named plaintiff, at the time of the filing of the class action, was a member of the class.
Intervening law held that an attorney could not be both a class representative and class
counsel. (Best Buy, supra, 137 Cal.App.4th at p. 774.)
       The potential for abuse of the class action procedure is self-evident where the only
named plaintiff has never been a member of the class. Here we find this potential for
abuse far outweighs any conceivable benefit to the class.
       The facts before us harken back to Starbucks as opposed to CashCall. In
CashCall the potential class members were completely unaware of their potential claims,
since the defendant surreptitiously recorded their calls. Moreover, the defendant
admitted it engaged in illegal, secret monitoring of phone calls. In Starbucks, class
members who had marijuana convictions knew about that fact when they filed a job
application requiring disclosure of such convictions.2
       Here, CVS employees know whether or not they were terminated and the
circumstances surrounding their terminations. These potential class members know if
they have a qualified disability, if that disability prevented them from working during a
45-day period, if they requested and were denied a leave as a reasonable accommodation,
and if they were terminated for not working during this period. Given this knowledge,
the terminated employees can pursue a claim under the FEHA to vindicate their rights
and recover monetary damages. In addition, the privacy rights of the putative class


2 We also note that in Safeco the trial court found no abuse of discretion in allowing
headless precertification discovery where the class members had no way of knowing
whether they had been charged a higher premium, there was no other action or
enforcement proceeding that might provide relief, and counsel presented a strong offer of
proof that the defendant had the purported surcharge policy. (Safeco, supra,
173 Cal.App.4th at pp. 833-834.) However, none of these factors apply in the present
case.

                                             15
members add to the potential for abuse and undercut the benefits of precertification
discovery. Deluca’s counsel would inquire as to whether or not a CVS employee is
disabled, the nature of the disability, and the circumstances surrounding a termination.
As in Starbucks, we find such requested discovery impinges on the privacy rights of
potential class members.
       Class actions rest on considerations of equity and justice. Based on the facts
before us, and applying the Parris test, we find the actual or potential abuse of the class
action procedure outweighs the potential benefits that might be gained. Therefore, the
trial court abused its discretion in allowing the proposed precertification discovery.
                                      DISPOSITION
       Let a peremptory writ of mandate issue directing respondent Superior Court of
Sacramento County to vacate its discovery order of August 29, 2014. CVS is awarded
costs in this original proceeding. (Cal. Rules of Court, rule 8.493(a)(1)(A).)



                                                            RAYE                 , P. J.



We concur:



         HULL               , J.



         RENNER             , J.




                                             16
Filed 10/15/15

                                CERTIFIED FOR PUBLICATION



             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                THIRD APPELLATE DISTRICT
                                           (Sacramento)
                                               ----




CVS PHARMACY, INC., et al.,                                       C077622

                 Petitioners,                                   (Super. Ct. No.
                                                          34201300156661CUOEGDS)
        v.

THE SUPERIOR COURT OF SACRAMENTO
COUNTY,

                 Respondent;

CHARLENE DELUCA,

                 Real Party in Interest.




     ORIGINAL PROCEEDING in mandate. David I. Brown, J. Peremptory writ of
mandate issued.

      Littler Mendelson, Michael E. Brewer, Michael G. Leggieri and Johanna R.
Carney for Petitioners.

        No appearance for Respondent.

        The Velez Law Firm, Mark P. Velez and Kellen Crowe for Real Party in Interest.


                                                1
THE COURT:

        The opinion in the above-entitled matter filed on September 15, 2015, was not
certified for publication in the Official Reports. For good cause it now appears that the
opinion should be published in the Official Reports and it is so ordered.

BY THE COURT:



         RAYE               , P. J.



         HULL               , J.



         RENNER             , J.




                                             2
