Ex Parte Application for Temporary Restraining Order Regarding Communications with Class Members

August 12, 2014

“In the context of a class action, it is the court’s authority and duty to exercise control over the class action to protect the rights of all parties, and to prevent abuses which might undermine the proper administration of justice.”  Howard Gunty Profit Sharing Plan v. Superior Court (2001) 88 Cal.App.4th 572, 581 (citing Gulf Oil Co. v. Bernard (1981) 452 U.S. 89, 100–103).  “Communications that misrepresent the status or effect of the pending action, or which may cause confusion, adversely affect the administration of justice.”  Id. at 582.  “Where a trial court identifies a potential for abuse, the court ‘has both the duty and the broad authority to exercise control over a class action and to enter appropriate orders governing the conduct of counsel’ and parties.”  Hernandez v. Vitamin Shoppe Industries, Inc. (2009) 174 Cal.App.4th 1441, 1454 (quoting Howard Gunty, supra, 88 Cal.App.4th at 579).  In the class action context, it is “‘essential that the class members’ decision to participate . . . be made on the basis of independent analysis of its own self-interest.’”  Gainey v. Occidental Land Research (1986) 186 Cal.App.3d 1051, 1058 (discussing the importance of an unbiased class notice procedure) (internal citation omitted).  A class member’s decision to participate in the class action must be “free and unfettered” from the defendant’s “own competing and argumentative notice and invitation to the class members to opt out.”  Id.

Code Civ. Proc. § 526 authorizes the Court to grant a preliminary injunction “[w]hen it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action.”  Section 527 authorizes the Court to grant a temporary restraining order ex parte pending the resolution of the preliminary injunction issue when “[i]t appears from facts shown by affidavit or by the verified complaint that great or irreparable injury will result to the applicant before the mater can be heard on notice.”  Additionally, the California Supreme Court has “often recognized the ‘inherent powers of the court . . . to insure the orderly administration of justice.’”  Walker v. Superior Court (1991) 53 Cal.3d 257, 266 (quoting Hays v. Superior Court (1940) 16 Cal.2d 260, 264).  “Although some of these powers are set out by statute ([Cal. Code Civ. Proc.] § 128, subd. (a)), it is established that the inherent powers of the courts are derived from the Constitution (art. VI, § 1 [reserving judicial power to courts] [cite]), and are not confined by or dependent on statute.”  Id. at 267 (citing Bauguess v. Paine (1978) 22 Cal.3d 626, 635–636; Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 287).  “Courts are not powerless to formulate rules of procedure where justice demands it.”  Adamson v. Superior Court (1980) 113 Cal.App.3d 505, 509.  A court has “inherent power to control the proceedings before it and to make orders which prevent the frustration, abuse, or disregard of the court’s processes.”  Conn v. Superior Court (1987) 196 Cal.App.3d 774, 785.  “The trial court’s inherent powers have been recognized, endorsed and affirmed in a considerable body of authority, and the powers have been flexibly applied in response to the many vagaries of the litigation process.”  Peat, Marwick, supra, 200 Cal.App.3d at 287.  The Court’s inherent powers also include restrictions on communications with potential class members.  Hernandez v. Vitamin Shoppe Industries, Inc., supra, 174 Cal.App.4th 1441; Gainey v. Occidental Land Research, supra, 186 Cal.App.3d 1051, 1057–1058; Howard Gunty, supra, 88 Cal.App.4th 572; Atari, Inc. v. Superior Court (1985) 166 Cal.App.3d 867; Parris v. Superior Court (2003) 109 Cal.App.4th 285.

Author: David Lipps
Category: Class Actions, Ex Parte Application, Legal Procedure
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