A judgment of dismissal of a prior class action alleging the same claims against the same employer as this putative class action was not res judicata and did not preclude the class’s claims in this suit because (1) the judgment was a dismissal for failure to bring the action to trial within five years and that type of judgment is not on the merits or given res judicata effect, and (2) the appeal from the dismissal was still pending. Pointing out differences between state and federal res judicata law and appellate procedure, this decision declines to follow federal case law, which ends American Pipe tolling upon the first denial of class certification in a case, whether or not an interlocutory appeal is taken from the denial. Instead, it says that under California law, American Pipe tolling should continue (1) when class certification is denied for lack of an adequate class representative and the plaintiffs promptly amend to add in newly proposed class representatives who may be adequate, and (2) while an appeal from denial of class certification is pending.
California Court of Appeal, Fourth District, Division 1 (Irion, J.); April 26, 2018 (published May 14, 2018); 2018 Cal. App. LEXIS 438