Filed 8/14/14
                           CERTIFIED FOR PUBLICATION



             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                     DIVISION THREE



DANIEL HENDERSHOT et al.,                           B247730

        Plaintiffs and Appellants,                  (Los Angeles County
                                                    Super. Ct. No. BC485401)
        v.

READY TO ROLL
TRANSPORTATION, INC. et al.,

        Defendants and Respondents.




        APPEAL from an order of the Superior Court of Los Angeles County,

William F. Fahey, Judge. Reversed and remanded.

        The Gillam Law Firm and Carol L. Gillam for Plaintiffs and Appellants.

        Fraser, Watson & Croutch, Todd E. Croutch and Daniel K. Dik for Defendants

and Respondents.



                     _______________________________________
       The plaintiffs Daniel Hendershot et al.1 appeal the trial court’s order denying

their motion for class certification. The trial court found that the proposed class was not

sufficiently numerous because a majority of the putative class members had entered into

releases and arbitration agreements with the defendant Ready to Roll

Transportation, Inc.

       We find that the order must be reversed on the following grounds: (1) the court’s

analysis of the “numerosity” factor was incorrect; (2) the court improperly considered

the merits of the defendant’s affirmative defenses; and (3) the court denied the plaintiffs

due process by failing to grant them an adequate opportunity to perform discovery on

and brief certification issues.

                   FACTUAL AND PROCEDURAL BACKGROUND

       1.     The Complaint

       On May 24, 2012, the plaintiffs filed a putative class action against the defendant

for failure to pay overtime wages, among other causes of action. The complaint alleged

that the putative class members were non-exempt employees who chauffeured vehicles

for the defendant, and that the defendant failed to compensate them for periods when

they were required to remain on-call in between trips transporting clients. The plaintiffs

amended the complaint twice and the defendant filed an answer. The second amended

complaint defined the class as “[a]ll non-exempt, chauffeur employees who worked

‘on-call time’ without compensation, who are or who have been employed by



1
       The named plaintiffs are Daniel Hendershot, Alfred Salas and Steven Whitehead.

                                             2
DEFENDANT[] in the State of California at any time during the four years prior to the

date of the filing of this action.”

       2.      The Plaintiffs Serve Discovery and Agree to Grant the Defendant
               An Extension

       On June 28, 2012, the plaintiffs propounded requests for production, requests for

admissions and a form interrogatory on the defendant. On July 27, 2012, the defendant

asked for a one-month extension to respond to the discovery. The plaintiffs conditioned

such an extension on the defendant’s agreement that it would provide (1) “good faith,

substantive responses, and not simply objections” as well as (2) “the contact

information for all putative class members.” The defendant’s counsel “agree[d] to the

proposal” and said it would employ a “[Belaire] notice procedure” to provide the

plaintiffs’ counsel with contact information for the class.2 The defendant’s counsel

committed to providing the plaintiffs’ counsel with a draft of a Belaire notice within

a week.

       3.      The Defendant Does Not Comply With the Discovery Agreement

       The defendant thereafter obtained new counsel. On September 7, 2012, the

defendant’s new counsel acknowledged the parties’ agreement regarding the discovery

extension but asked for additional time to “review the [Belaire] Notice [and]

communicate with my client about the details.” The plaintiffs’ counsel agreed to the



2
       In Belaire-West Landscape, Inc. v. Superior Court (2007) 149 Cal.App.4th 554,
the court of appeal approved the use of an “opt-out notice” to putative class members
whereby these members were informed that the plaintiffs’ counsel would receive their
contact information unless they chose to object to such a disclosure.

                                            3
extended timeframe, and the defendant’s counsel agreed to finalize the Belaire notice by

September 26, 2012.

       However, the defendant’s counsel did not send the plaintiffs’ counsel a draft

Belaire notice. On September 18, 21 and 25, 2012, the plaintiffs’ counsel contacted the

defendant’s counsel by phone and email seeking to determine if the defendant had any

revisions to the draft Belaire notice. The defendant’s counsel did not respond. During

this time, the defendant’s chief executive officer, Gale Ricketts, met individually with

29 putative class members and obtained their signatures on agreements releasing any

and all claims they might have against the defendant.

       4.     The Plaintiffs Move to Compel Further Responses

       The defendant served its discovery responses on the plaintiffs in September. On

October 29, 2012, the plaintiffs moved to compel further responses to their discovery

requests, including the request seeking all documents pertaining to defenses the

defendant intended to assert in this action. The plaintiffs argued that, in spite of the

defendant’s prior agreement to provide substantive responses to the discovery in

exchange for an extension, the defendant had refused to respond to over half of the

requests for admissions and the related Form Interrogatory 217.1, had asserted

boilerplate objections to certain requests for production, and had only produced

a portion of responsive documents. On December 11, 2012, the court granted the

motions. The defendant was ordered “to file supplemental responses as prayed for” by

December 21, 2012, and to pay the plaintiffs $10,000 in attorney’s fees. The defendant




                                             4
did, at some time thereafter, serve supplemental responses and produce a list of the

putative class members to a third party administrator.

       5.     The Plaintiffs Move for a Continuance

       On January 25, 2013, the plaintiffs moved ex parte with the defendant’s consent

to “re-set[] the due date to file a Motion for Class Certification in this case and adjust

related deadlines.” The court had set a deadline for filing the motion of February 14,

2012, and the plaintiffs requested an additional two months to prepare on the grounds

that there had been “a delay of over a month in obtaining the Putative Class List from

the Third Party Administrator,” “significant delays in obtaining documents in

discovery” including “a large production of many thousands of pages [which] was

obtained by Plaintiffs just recently from Defendant,” and “[c]ertain witnesses important

for the Motion are unavailable for deposition in the immediate term . . . . ” The court

denied the request.

       6.     The Defendant’s CEO Does Not Appear for Her Deposition

       The parties’ counsel agreed to set Ricketts’ deposition for January 31, 2013, and,

accordingly, the plaintiffs’ counsel noticed the deposition for that date. However, on

January 30, 2013, the defendant’s counsel informed the plaintiffs’ counsel that Ricketts

would not appear for her deposition because she had, for some unexplained reason,

traveled out of state. The plaintiffs’ counsel objected on the grounds that the parties’

counsel had previously agreed to this date and the deposition had been properly noticed.

However, Ricketts did not appear for the deposition.




                                              5
       7.      The Defendant Produces the Releases and Arbitration Agreements

       On February 1, 2013, the defendant produced 36 settlement agreements with

putative class members, 29 of which had been signed in September 2012. The

settlement agreements provided that certain putative class members “release[d]” the

defendant “from any and all liability . . . that Employee now has or which may hereafter

accrue against the [defendant] . . . . ”3 Several of the releases were signed in exchange

for $5.00.

       8.      The Plaintiffs Move for Class Certification

       On February 14, 2013, the plaintiffs filed their motion for class certification in

which they argued that the proposed class was sufficiently numerous because there were

at least 53 potential members of the class. One week later, the defendant produced

24 arbitration agreements and two additional settlement agreements with putative class

members. All of the arbitration agreements had been signed in 2012, prior to the due

date for the defendant’s further production pursuant to the court’s order granting the

motion to compel. The agreements provided that “[a]ny controversy, dispute or claim

between any employee and the [defendant] . . . shall be settled by binding arbitration, at

the request of either party . . . . ”

       On February 26, 2013, the defendant filed its opposition to the class certification

motion. In opposition, the defendant argued that the putative class was not sufficiently

numerous because the majority of the proposed class had settled their claims and/or


3
      We note that this agreement is not entirely coherent: it appears to be releasing the
defendant from the employee’s liability.

                                             6
agreed to arbitrate their disputes with the defendant. The defendant also argued that

“most employee[s’] settlement of all their claims, agreement to arbitration, or

both . . . demonstrate that there will be various factual issues, and in particular defenses,

that are not typical of the entire purported class, and . . . class representatives.”

       In reply, the plaintiffs argued that (1) the defendant had waived any defense

based on the releases or arbitration agreements by not pleading it in its answer; (2) the

defendant should not be permitted to assert defenses based on documents it withheld

from discovery; and (3) the releases and arbitration agreements were unenforceable.

The plaintiffs again asked the court to continue the hearing to allow them to conduct

further discovery.

       9.     The Court Denies Class Certification

       On March 12, 2013, the court denied class certification on the grounds that the

plaintiffs had failed to satisfy the numerosity requirement. The court’s order provided

that: “Defendant has produced compelling evidence that, at most, there would be only

nine plaintiffs in this case: the three plaintiffs and six other drivers. Of the remainder

of the 53 drivers, thirty-eight have already settled their claims with defendant;

twenty-four have agreed to arbitrate any claims against defendant; and nineteen drivers

both settled and agreed to arbitrate. . . .4 [¶] Plaintiffs have provided no basis for

asserting that they have standing to attack the settlement agreements signed by their

fellow drivers. . . . [¶] Plaintiffs also contend that these settlement agreements were

4
        According to these numbers, only 43 drivers had signed a release and/or
arbitration agreement and, thus, there were ten  not nine  remaining plaintiffs in the
case.

                                               7
produced ‘late,’ and that plaintiffs were not able to depose Ms. Ricketts, the owner of

defendant. But again there is an inadequate record as to any improper conduct by

Ricketts or that plaintiffs have suffered any real prejudice. . . . [¶] Defendant was not

required to have pleaded an ‘arbitration defense’ prior to this hearing . . . [¶] the Motion

for Class Certification . . . is Denied.”

       That same day, plaintiffs filed a request for permission to file supplemental

briefing on the issue of standing raised sua sponte by the court at the hearing. The

record does not indicate that the court ruled on the request. The plaintiffs timely

appealed.

                                      CONTENTIONS

       The plaintiffs contend the trial court erred in finding that the proposed class was

not sufficiently numerous. The plaintiffs also contend the court erred in considering the

defendant’s late production and in refusing to continue the class certification hearing to

allow the plaintiffs to conduct further discovery.

                                       DISCUSSION

       1.      Class Certification

       Class actions are authorized under Code of Civil Procedure section 382

whenever “the question [in a case] is one of a common or general interest, of many

persons, or when the parties are numerous, and it is impracticable to bring them all

before the court . . . . ” Under California law, a party seeking certification of a class

must demonstrate three things: “[1] the existence of an ascertainable and sufficiently

numerous class, [2] a well-defined community of interest, and [3] substantial benefits


                                              8
from certification that render proceeding as a class superior to the alternatives.”

(Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021 (Brinker).)

“In turn, the ‘community of interest requirement embodies three factors:

(1) predominant common questions of law or fact; (2) class representatives with claims

or defenses typical of the class; and (3) class representatives who can adequately

represent the class.’ ” (Fireside Bank v. Superior Court (2007) 40 Cal.4th 1069, 1089

(Fireside).)

       “The question of class certification is essentially procedural and does not involve

the legal or factual merits of the action. [Citation.]” (Knapp v. AT&T Wireless

Services, Inc. (2011) 195 Cal.App.4th 932, 938.) “Trial courts have discretion in

granting or denying motions for class certification because they are well situated to

evaluate the efficiencies and practicalities of permitting a class action. [Citation.]

Despite this grant of discretion, appellate review of orders denying class certification

differs from ordinary appellate review. Under ordinary appellate review, we do not

address the trial court’s reasoning and consider only whether the result was correct.

[Citation.] But when denying class certification, the trial court must state its reasons,

and we must review those reasons for correctness. [Citation.]” (Id. at p. 939.)

       “A grant or denial of class certification that rests in part on an erroneous legal

assumption is error; without regard to whether such a certification might on other

grounds be proper, it cannot stand.” (Brinker, supra, 53 Cal.4th at p. 1050.) “ ‘In other

words, we review only the reasons given by the trial court for denial of class

certification, and ignore any other grounds that might support denial.’ ” (Corbett v.


                                              9
Superior Court (2002) 101 Cal.App.4th 649, 658; Clothesrigger, Inc. v. GTE Corp.

(1987) 191 Cal.App.3d 605, 611-612 [In reviewing an order denying class

certification,“[t]he right result is an inadequate substitute for an incorrect process.”].)

       2.     Numerosity

       The parties dispute the trial court’s finding that the proposed class was not

sufficiently numerous. To be certified, a class must be “numerous” in size such that “it

is impracticable to bring them all before the court.” (Code of Civ. Proc., § 382.) “The

requirement of Code of Civil Procedure section 382 that there be ‘many’ parties to

a class action suit is indefinite and has been construed liberally. . . . No set number is

required as a matter of law for the maintenance of a class action. [Citation.] Thus, our

Supreme Court has upheld a class representing the 10 beneficiaries of a trust in an

action for removal of the trustees. [Citation.]” (Rose v. City of Hayward (1981)

126 Cal.App.3d 926, 934.)

       “The ultimate issue in evaluating this factor is whether the class is too large to

make joinder practicable . . . . ”5 (Celano v. Marriott Intern., Inc. (N.D. Cal. 2007)

242 F.R.D. 544, 549.) “ ‘[I]mpracticality’ does not mean ‘impossibility,’ but only the

difficulty or inconvenience of joining all members of the class. [Citation.]” (Harris v.

Palm Springs Alpine Estates, Inc. (9th Cir. 1964) 329 F.2d 909, 913-914.) “The

5
       “It is well established that in the absence of relevant state precedents trial courts
are urged to follow the procedures prescribed in rule 23 of the Federal Rules of Civil
Procedure (28 U.S.C.) for conducting class actions. [Citation.]” (Frazier v. City of
Richmond (1986) 184 Cal.App.3d 1491, 1499.) Rule 23 of the Federal Rules of Civil
Procedure provides, similar to Code of Civil Procedure section 382, that a class action is
proper when “the class is so numerous that joinder of all members is impracticable.”
(Fed. Rules Civ. Proc., rule 23(a)(1), 28 U.S.C.)

                                              10
numerosity requirement requires examination of the specific facts of each case and

imposes no absolute limitations.” (General Telephone Co. v. EEOC (1980) 446 U.S.

318, 330.) “In addition to the size of the class, the court may also consider the nature of

the action, the size of the individual claims, the inconvenience of trying individual suits,

and any other factor relevant to the practicability of joining all the putative class

members.” (Paxton v. Union Nat. Bank (8th Cir. 1982) 688 F.2d 552, 559-560.)

       Here, the second amended complaint defined the proposed class as “[a]ll

non-exempt, chauffeur employees who worked ‘on-call time’ without compensation,

who are or who have been employed by DEFENDANT[] in the State of California at

any time during the four years prior to the date of the filing of this action.” There was

no dispute that 53 individuals fell within the class description. The trial court found

only that the class was not sufficiently numerous because 44 of those individuals had

settled their claims or agreed to arbitrate their claims against the defendant. The trial

court’s bare conclusion that the remaining nine class members did not constitute

a sufficiently numerous class  without any analysis as to the “ultimate issue . . . [of]

whether the class is too large to make joinder practicable”  was incomplete. (Celano v.

Marriott Intern., Inc., supra, 242 F.R.D. at p. 549.) There is no set number required to

maintain a class action, and the statutory test is whether a class is so numerous that “it is

impracticable to bring them all before the court.” (Code of Civ. Proc., § 382.)

       Furthermore, in finding that only nine individuals could be part of the class, the

court improperly ruled on the merits of the defendant’s affirmative defenses. Normally,

the merits of a case are not considered in deciding class certification. (Linder v. Thrifty

                                             11
Oil Co. (2000) 23 Cal.4th 429, 439-440 (Linder).) However, the trial court may

consider “the case’s merits” when considerations of “ ‘how various claims and defenses

relate and may affect the course of the litigation’ . . . ‘overlap the case’s merits.’

[Citation.]”6 (Brinker, supra, 53 Cal.4th at p. 1024.) “[A]ny ‘peek’ a court takes into

the merits at the certification stage must ‘be limited to those aspects of the merits that

affect the decisions essential’ to class certification. [Citation.]” (Ibid.)

       Here, the court essentially ruled that the defendant’s affirmative defenses based

on the releases and arbitration agreements had merit, and thereby determined that the

majority of putative class members could not assert claims against the defendant in this

action. However, consideration of those defenses did not “overlap” with the numerosity

analysis, which was limited to how many individuals fell within the class definition and

whether their joinder was impracticable. (Brinker, supra, 53 Cal.4th at p. 1024.)

       Although these defenses may overlap with the determination of whether the class

representatives here can adequately represent members who have signed releases and

arbitration agreements, or whether those representatives’ claims and defenses are typical

of those of the class, the trial court did not address these matters. (See, e.g., Melong v.


6
        For example, “ ‘whether the claims or defenses of the representative plaintiffs
are typical of class claims or defenses’ [is] an issue that might necessarily be
intertwined with the merits of the case, but which a court considering certification
necessarily could and should consider. [Citations.]” Fireside, supra, 40 Cal.4th at
p. 1092 (italics added); see also Walsh v. IKON Office Solutions, Inc. (2007)
148 Cal.App.4th 1440, 1450 [“The affirmative defenses of the defendant must also be
considered, because a defendant may defeat class certification by showing that an
affirmative defense would raise issues specific to each potential class member and that
the issues presented by that defense predominate over common issues. [Citations.]”
(Italics added.))

                                              12
Micronesian Claims Commission (D.C. Cir. 1980) 643 F.2d 10, 13 [“[W]hether those

proposed class members who have executed releases with [the defendant] may be

included within the plaintiffs’ proposed classes . . . is not a novel [issue]; it has been

addressed often by courts in a variety of cases involving proposed class actions. In each

instance, the court considering the question has concluded that proposed class members

who have executed releases can not [sic] be represented by individuals who have not

executed a release.”].)

       Furthermore, as the Supreme Court explained in Linder, “[w]hen the substantive

theories and claims of a proposed class suit are alleged to be without legal or factual

merit, the interests of fairness and efficiency are furthered when the contention is

resolved in the context of a formal pleading (demurrer) or motion (judgment on the

pleadings, summary judgment, or summary adjudication) that affords proper notice and

employs clear standards. Were we to condone merit-based challenges as part and parcel

of the certification process, similar procedural protections would be necessary to ensure

that an otherwise certifiable class is not unfairly denied the opportunity to proceed on

legitimate claims.”7 (Linder, supra, 23 Cal.4th at pp. 440-441; see, e.g., Chindarah v.

Pick Up Stix, Inc. (2009) 171 Cal.App.4th 796 [employer cross-claimed against

employees who joined class action after signing settlement agreements, and the court


7
       The defendant also has the option of moving to compel arbitration as to putative
class members should the class be certified. (See Sky Sports, Inc. v. Superior Court
(2011) 201 Cal.App.4th 1363 [holding that, when the named representative has not
signed an arbitration agreement with the defendant but putative class members have, the
proper time for the defendant to bring a motion to compel arbitration is after the class
has been certified.])

                                              13
properly granted summary judgment on these claims for the employer].) Accordingly,

here, the defendant’s contention that its defenses disposed of the putative class’s claims

was improperly resolved as part of the trial court’s numerosity analysis.8

       3.     Violation of the Plaintiffs’ Due Process Rights

       The trial court also erred in denying the plaintiffs an adequate opportunity to

conduct discovery on and brief issues related to certification. First, the defendant did

not provide adequate notice to the plaintiffs that it intended to assert defenses based on

a release or arbitration agreement by pleading these defenses in its answer. “[T]he

assertion of a release in bar is an affirmative defense to an action (citation) to which the

releasor is entitled to respond.” (Raischell & Cottrell, Inc. v. Workmen’s Comp. App.

Bd. (1967) 249 Cal.App.2d 991, 997.) Likewise, “an agreement to arbitrate is an

affirmative defense” (Ross v. Blanchard (1967) 251 Cal.App.2d 739, 742), and “the

failure to plead arbitration as an affirmative defense is an act inconsistent with the later

assertion of a right to arbitrate.” (Guess?, Inc. v. Superior Court (2000) 79 Cal.App.4th

553, 558.)

       The defendant’s failure to assert these defenses in its answer did not necessarily

bar the defendant from asserting them in opposition to the motion for class certification:


8
        The arbitration agreements also did not provide an adequate basis for concluding
that certain putative class members could not participate in the class at this stage. The
arbitration agreement at issue stated that “[a]ny controversy, dispute or claim between
any employee and the [defendant] . . . shall be settled by binding arbitration, at the
request of either party . . . . ” (Emphasis added.) Accordingly, these agreements did
not require that the parties arbitrate their disputes until a party requested arbitration.
Here, the defendant did not state that it had or would request arbitration of these
disputes.

                                             14
the defendant could have moved at any time to amend its answer to include these

defenses, even at this late stage. (Ramos v. City of Santa Clara (1973) 35 Cal.App.3d

93, 95 [“A trial court has discretion to allow amendment of any pleading at any stage of

the proceedings . . . . ”].) However, this principle extends to plaintiffs as well, who

should also be allowed to amend their pleading in response to any newly pled defense.

(Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487 [“courts are bound to

apply a policy of great liberality in permitting amendments to the complaint at any stage

of the proceedings, up to and including trial . . . ‘[w]here no prejudice is shown to the

adverse party . . . . ’ [Citation.]”)

       The defendant contends that it was not required to plead an affirmative defense

that applied only to putative class members because, prior to the certification of the

class, those individuals are not parties to this action. However, such a rule would

encourage a defendant to oppose class certification by raising, at the last minute,

defenses that apply only to putative class members. In addition, as explained by

a leading treatise on class actions, “the courts risk confusion and uncertainty when they

try to determine the implications of rights of the representative or of class members by

focusing on whether absent members are parties or are present as parties for some

purposes and not for others. The position that absent class members occupy in class

action litigation is sui generis, and attempts to analogize to conventional ‘party’ status

are likely to fail. It is more logical for a court faced with a question concerning the

rights and duties of absent class members to analyze the issue presented with reference

to the goals of representative litigation, not by strained analogies to conventional


                                             15
litigation.” (1 Conte et al., Newberg on Class Actions (5th ed. 2011) § 1:5, pp. 15-16,

fns. omitted.)

       Here, the named representatives cannot properly address issues pertaining to

putative class members if the defendant is allowed to oppose certification based on

defenses pertaining to those putative class members but is not required to give the

plaintiffs advance notice that those defenses are at issue. Rather, the defendant should

assert defenses pertaining to the putative class in its answer. Due process requires that

the plaintiffs be given an adequate opportunity to conduct discovery on and brief issues

related to the defendant’s affirmative defenses. Asserting such defenses for the first

time in opposition to class certification did not give the plaintiffs such an opportunity.

       Second, the trial court abused its discretion in allowing the defendant to rely on

the belatedly produced releases and arbitration agreements without continuing the

motion or allowing the plaintiffs an opportunity to further brief the issues. “It is an

abuse of discretion for a trial court to determine class certification questions before the

parties have an opportunity to conduct discovery and present evidence on certification

issues.” (Cohelan on California Class Actions (2013-2014 ed.) § 6:20.) “Due process

requires an order with such significant impact on the viability of a case not be made

without a full opportunity to brief the issues and present evidence.” (Carabini v.

Superior Court (1994) 26 Cal.App.4th 239, 244.)

       Here, the record establishes that the defendant withheld the releases and

arbitration agreements from the plaintiffs despite a court order directing it to produce all

documents in support of its defenses. In addition, the defendant did not produce the


                                             16
releases until the eve of the due date for the motion for class certification  and did not

produce the arbitration agreements until after the motion had been filed  despite

having possessed them for many months. This timeline did not give the plaintiffs an

adequate opportunity to conduct discovery on these issues or brief them. Furthermore,

the record demonstrated that the defendant had also abused the discovery process by

breaking its agreement to draft a Belaire notice, first by late July 2012, and then again,

by late September 2012. The defendant also reneged on its agreement to produce its

chief executive officer for a deposition in January 2013. These delays with respect to

the plaintiffs’ ability to communicate with the proposed class and to obtain discovery

directly from the defendant, provided further support for the plaintiffs’ argument that

they had not had an adequate opportunity to conduct discovery on certification issues.

       The plaintiffs now argue that the assertion of these defenses took them by

surprise and prejudiced them. It clearly did. The defendant successfully hid the fact

that it had managed to procure releases from the majority of the putative class until the

eve of the due date for the motion for class certification. In addition, there is no

evidence that the plaintiffs were aware of the arbitration agreements between the

defendant and certain putative class members until after the plaintiffs had filed their

moving papers. The motion for class certification was denied based on these defenses

which were asserted for the first time by the defendant in their opposition papers. In

addition, the standing argument raised by the court at the hearing disposed of the

plaintiffs’ challenge to those agreements, yet the court did not grant the plaintiffs’

request to provide briefing on this issue. Since the plaintiffs did not have an adequate

                                             17
opportunity to conduct discovery on or brief issues related to certification, the motion

denying class certification must be reversed.

                                     DISPOSITION

       The order denying class certification is reversed, and the cause is remanded for

proceedings not inconsistent with this opinion. The plaintiffs are to recover their costs

on appeal.



       CERTIFIED FOR PUBLICATION




                                                                       CROSKEY, J.

WE CONCUR:




       KLEIN, P. J.




       ALDRICH, J.




                                            18
