Here's something interesting that I learned for the first time today:
Federal courts interpreting rule 23 of the Federal Rules of Civil Procedure (28 U.S.C.) (hereafter rule 23) freely allow successive certification motions. This is because rule 23 encourages certification decisions early in the proceedings, when discovery is incomplete and facts bearing on the propriety of maintaining a class action may be unknown, and because it contemplates that initial orders may be conditional and altered or amended before a judgment on the merits. Trial courts thus should stand ready to modify and amend initial rulings as the case and record develop. "Under Rule 23 the district court is charged with the duty of monitoring its class decisions in light of the evidentiary development of the case. The district judge must define, redefine, subclass, and decertify as appropriate in response to the progression of the case from assertion to facts." [citations] Cases have applied that rationale to allow a renewed certification motion where a prior one has been denied. [citations]
Stephen v. Enterprise Rent-a-Car (1991) 235 Cal.App.3d 806, 812.
But not so in California state courts. The denial of a motion for class certification under California law is a final, appealable order. Id. at 810. Under Cal. Rules of Court, rule 2(a), plaintiff has 60 days to appeal the denial. If 60 days elapses and no appeal is filed, neither the trial court nor the court of appeal will have jurisdiction to entertain any reconsideration of or appeal from an order denying class certification, because there is no longer any jurisdiction over the absent class members. Id.
A motion for reconsideration under Cal. Code. Civ. Proc. section 1008 will not cure this problem, even given new or different facts. Id. at 816. (Though there may still be "relief under the more rigorous showing of mistake, inadvertence, surprise or excusable neglect prescribed by [Cal. Code Civ. Proc.] section 473." Id. at 818. But I wouldn't bet on it.)
One way around this might be to convince a court that is contemplating denying a motion for class certification to instead enter an order continuing the hearing on the motion to allow for further, future briefing and a hearing, rather than outright denying the motion.
That's because once the court enters an order denying a motion for class certification, a plaintiff has 60 days to file an appeal. And if plaintiff fails to timely do so, he or she can never move for class certification in the case again. Except for the individual claims of the named plaintiff(s), the case is over.
Most attorneys - and perhaps most trial courts - in California do not know this. I didn't.