Fierro v. Landry's Restaurant, Inc.

Plaintiff Jorge Fierro filed the underlying action against defendant Landry's Restaurants, Inc., 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 Procedure sections 583.310 and 583.360. Under the "death knell" doctrine, Fierro appeals from that portion of the order sustaining without leave to amend the demurrer to the class claims.

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 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.

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