Study guide
Class Actions (Rule 23 and California)
California Bar Exam Exam
Track your progress as you read
Finished sections get a check mark.
1 Exam Format and Core Skills
California Bar Exam Blueprint: Subjects, Components, and Recent Changes Exam Format, Scoring, and the 1390 Passing Score Essay Strategy: Issue Spotting and IRAC Core Written Skills and Timing Strategy
2 Civil Procedure
Subject Matter Jurisdiction: Federal Question, Diversity, Supplemental, Removal Personal Jurisdiction, Long-Arm, Minimum Contacts, and Service of Process Venue, Transfer, and Forum Non Conveniens The Erie Doctrine and Choice of Law Pleadings, Rule 11, Amendments, and California Demurrers / Anti-SLAPP Joinder of Claims and Parties, Impleader, Intervention, Interpleader Class Actions (Rule 23 and California) Discovery: Scope, Devices, Privilege, and Sanctions Pretrial Adjudication: Dismissals, Default, and Summary Judgment Trial, Jury, Judgment as a Matter of Law, and Post-Trial Motions Appeals, the Final Judgment Rule, and Claim/Issue Preclusion
3 Constitutional Law
Judicial Review, Justiciability, Standing, Ripeness, Mootness, and Political Questions Federal Legislative Power: Commerce, Taxing & Spending, and the Tenth and Eleventh Amendments Separation of Powers: Executive, Legislative, and Judicial Authority Federalism, Supremacy, Preemption, the Dormant Commerce Clause, and Privileges & Immunities State Action and Congressional Enforcement of the Reconstruction Amendments Procedural Due Process Substantive Due Process and Fundamental Rights Equal Protection and Levels of Scrutiny First Amendment: Speech, Press, Forums, and Association First Amendment Religion Clauses and the Takings Clause
4 Contracts
Applicable Law: Common Law vs. UCC Article 2 and Mixed Contracts Mutual Assent: Offer, Acceptance, Mailbox Rule, and UCC 2-207 Consideration, Bargained-for Exchange, and Promissory Estoppel Defenses to Formation: Capacity, Mistake, Misrepresentation, Duress, Unconscionability The Statute of Frauds Parol Evidence Rule and Contract Interpretation Conditions and Performance: Express, Constructive, and Substantial Performance Breach, Anticipatory Repudiation, and the Perfect Tender Rule Excuse of Performance: Impossibility, Impracticability, and Frustration UCC Warranties and Risk of Loss Third-Party Beneficiaries, Assignment, and Delegation Contract Remedies and UCC Buyer/Seller Remedies
5 Criminal Law and Procedure
Actus Reus, Mens Rea, Concurrence, and Causation Accomplice Liability and Parties to Crime Inchoate Crimes: Attempt, Conspiracy, and Solicitation Homicide: Murder, Manslaughter, Felony Murder, and California Degrees Other Crimes Against the Person: Assault, Battery, Kidnapping, and Sex Offenses Property and Theft Crimes: Larceny, Embezzlement, Robbery, Burglary, Arson Criminal Defenses: Insanity, Intoxication, Self-Defense, Duress, Necessity, Mistake Fourth Amendment: Searches, Seizures, Warrants, and Exceptions The Exclusionary Rule, Standing, and Fruit of the Poisonous Tree Fifth Amendment: Miranda, Self-Incrimination, and Double Jeopardy Sixth Amendment: Right to Counsel, Confrontation, Speedy Trial, and Jury Pretrial Identifications, the Eighth Amendment, and Trial Rights
6 Evidence
Relevance: Logical and Legal, Rule 403, and California Proposition 8 Policy-Based Exclusions: Subsequent Remedial Measures, Settlements, Insurance, Pleas Authentication and the Best Evidence Rule Witness Competency, Personal Knowledge, and Examination Impeachment of Witnesses Lay and Expert Opinion Testimony (Daubert and California Kelly/Sargon) Character Evidence and Other Acts (MIMIC) Habit and Methods of Proving Character Hearsay: Definition, Non-Hearsay, and Exemptions Hearsay Exceptions: Availability Immaterial (FRE 803) Hearsay Exceptions Requiring Unavailability (FRE 804) and the Confrontation Clause Privileges, Judicial Notice, and Presumptions (Federal and California)
7 Real Property
1.1 Estates in Land 1.2 Future Interests 1.3 Rule Against Perpetuities 1.4 Concurrent Ownership 1.5 Landlord-Tenant Law 1.6 Easements and Servitudes 1.7 Covenants Running with Land 1.8 Recording Acts and Title 1.9 Mortgages 1.10 Land Use Regulation Adverse Possession and Rights Incident to Ownership Land Sale Contracts, Marketable Title, and Risk of Loss Deeds, Delivery, Warranties of Title, and Fixtures
8 Torts
Intentional Torts Against the Person: Battery, Assault, False Imprisonment, IIED Intentional Torts to Property and Defenses/Privileges Negligence: Duty and the Standard of Care Negligence: Breach, Res Ipsa Loquitur, and Negligence Per Se Causation: Actual and Proximate Cause Negligence Damages and Defenses: Comparative Fault and Assumption of Risk Strict Liability: Animals and Abnormally Dangerous Activities Products Liability Private and Public Nuisance Defamation Invasion of Privacy, Misrepresentation, and Economic Torts Vicarious Liability, Joint Tortfeasors, and Immunities
9 Business Associations
Agency: Formation, Actual and Apparent Authority, and Ratification Agency: Principal/Agent Duties, Respondeat Superior, and Tort Liability General Partnerships: Formation, Rights, and Partnership Property Partnership Liability, Fiduciary Duties, Dissociation, and Dissolution Limited Partnerships, LLPs, and LLCs Corporations: Formation, Promoters, and Piercing the Corporate Veil Corporate Finance: Stock, Securities, Dividends, and Distributions Directors and Officers: Fiduciary Duties, the Business Judgment Rule, and Indemnification Shareholders, Derivative Suits, Fundamental Changes, and Federal Securities (10b-5, 16(b))
10 Community Property
General Principles, the Community Estate, and Marital Economic Community Characterization: Separate vs. Community Property and Presumptions Tracing and Commingling (Exhaustion and Direct Tracing) Transmutation and Premarital/Marital Agreements Special Assets: Businesses (Pereira/Van Camp), Goodwill, Education, Pensions, Disability Management, Control, and Spousal Fiduciary Duties Debts and Creditors' Rights Distribution at Dissolution and Death; Quasi-Community Property
11 Professional Responsibility
Regulation of the Profession, Admission, and Discipline (California Rules vs. ABA Model Rules) Competence, Diligence, Communication, and Scope of Representation Confidentiality and Its Exceptions (California vs. ABA) Conflicts of Interest: Current Clients Conflicts: Former Clients, Imputation, and Business Transactions Fees, Client Trust Accounts (IOLTA), and Safekeeping Property Duties to the Court and Third Parties: Candor, Advocacy, and Fairness Forming, Declining, and Terminating the Attorney-Client Relationship Advertising, Solicitation, and the Unauthorized Practice of Law Judicial Ethics, Reporting Misconduct, and Special Prosecutor Duties
12 Remedies
Compensatory Damages: Causation, Foreseeability, Certainty, and Mitigation Punitive, Nominal, and Liquidated Damages Restitution and Unjust Enrichment Constructive Trust and Equitable Lien Injunctions: Temporary Restraining Orders, Preliminary, and Permanent Specific Performance Reformation, Rescission, and Cancellation Equitable Defenses, Declaratory Relief, and Remedy Selection
13 Trusts
Trust Creation, Required Elements, and Types of Trusts Charitable Trusts, Cy Pres, and the Rule Against Perpetuities in Trusts Trustee Powers and Trust Administration Trustee Duties: Loyalty, Prudent Investor, and Impartiality Beneficiary Rights and Principal/Income Allocation Spendthrift, Discretionary, and Support Trusts; Creditors' Rights Modification and Termination of Trusts Breach of Trust, Remedies, and Will Substitutes (Totten, POD, Revocable Trusts)
14 Wills and Succession
Intestate Succession and California Distribution Will Execution and Formalities (Attested and Holographic; California) Testamentary Capacity, Undue Influence, Fraud, Duress, and Mistake Will Components: Integration, Incorporation, Acts of Independent Significance, and Pour-Over Revocation, Revival, and Dependent Relative Revocation Lapse, Anti-Lapse, Class Gifts, Ademption, Abatement, and Exoneration Protection of the Family: Omitted Spouse and Child, Pretermitted Heirs Will Contests, Standing, and No-Contest Clauses Probate Administration, Powers of Appointment, and Will Substitutes
15 Performance Test
The Performance Test: Task Memo, File, and Library Objective PT Products: Memos, Briefs, and Client Letters Persuasive PT Products and 90-Minute Execution
Class Actions (Rule 23 and California)
Key Takeaways Explain This Topic AI
Every Rule 23 class must satisfy four prerequisites: numerosity, commonality, typicality, and adequacy of representation (Rule 23(a)).
A (b)(1) class avoids inconsistent obligations or prejudice; a (b)(2) class seeks injunctive or declaratory relief; a (b)(3) damages class requires common questions to predominate and a class action to be superior.
Only (b)(3) classes require individual notice and an opt-out right; (b)(1) and (b)(2) classes are mandatory with no opt-out.
The Class Action Fairness Act (CAFA, 28 U.S.C. 1332(d)) grants federal jurisdiction over class actions with minimal diversity, 100+ class members, and more than $5 million aggregated in controversy.
A class judgment binds all members; under Phillips Petroleum v. Shutts, absent plaintiffs in a (b)(3) damages class are bound only if given notice and an opportunity to opt out.
Last updated: June 2026
The Rule 23(a) Prerequisites
A class action lets a representative plaintiff sue on behalf of a large group of similarly situated absent members. Before certification, the court must find all four prerequisites of Rule 23(a) (mnemonic: CANT — Commonality, Adequacy, Numerosity, Typicality):
Numerosity — the class is so numerous that joinder of all members is impracticable (no fixed number, but courts routinely find 40+ sufficient).
Commonality — there are questions of law or fact common to the class. After Wal-Mart Stores v. Dukes , commonality requires a common contention capable of classwide resolution — one whose truth or falsity will resolve an issue 'in one stroke.'
Typicality — the representative's claims or defenses are typical of the class.
Adequacy of representation — the representative and class counsel will fairly and adequately protect the class (no conflicts of interest; competent counsel). This is constitutionally essential because the judgment binds absent members (due process).
The party seeking certification bears the burden, and the court conducts a 'rigorous analysis,' which may overlap with the merits.
The Three Types of Rule 23(b) Classes
After 23(a) is met, the class must also fit one of three categories in Rule 23(b) — this determines notice and opt-out rights:
Type When used Notice / opt-out
23(b)(1) Separate actions would risk inconsistent obligations for the defendant (b)(1)(A) or impair absent members' interests, e.g., a limited fund (b)(1)(B) Mandatory — no opt-out
23(b)(2) The defendant 'acted or refused to act on grounds generally applicable to the class,' so injunctive or declaratory relief is appropriate (classic civil-rights class) Mandatory — no opt-out (monetary relief may not be more than incidental — Dukes )
23(b)(3) Common questions predominate over individual ones AND a class action is superior to other methods (the damages class) Required individual notice + opt-out right
Under 23(c)(2)(B) , only (b)(3) classes require the 'best notice practicable,' including individual notice to identifiable members, and the right to opt out . The cost of notice generally falls on the representative plaintiff ( Eisen v. Carlisle ).
- CAFA, Binding Effect, and California Class Procedure
- Class Action Fairness Act (CAFA)
CAFA (28 U.S.C. 1332(d)) dramatically expanded federal jurisdiction over class actions. Federal courts have original (and thus removal) jurisdiction when:
- There are at least 100 class members,
- Minimal diversity exists (any one class member is diverse from any one defendant), AND
The aggregated amount in controversy exceeds $5,000,000 (claims are aggregated across the class — a major exception to the no-aggregation rule).
CAFA also relaxes removal: the forum-defendant rule and the 1-year cap don't apply, and any defendant may remove without all defendants' consent. Courts must/may decline under 'home-state' and 'local-controversy' exceptions where most members and a key defendant are from the forum state.
Binding effect and due process
A class judgment binds all members , including absentees. Phillips Petroleum Co. v. Shutts holds that an absent (b)(3) plaintiff may be bound consistent with due process only if afforded notice , an opportunity to opt out , and adequate representation . A class member may later collaterally attack a judgment by showing representation was inadequate.
California class actions (CCP 382)
California authorizes class actions under CCP 382 ('when the question is one of a common or general interest, of many persons, or when the parties are numerous'). Courts borrow Rule 23-like factors — ascertainable class , community of interest (predominant common questions, typicality, adequacy) — and weigh whether class treatment yields substantial benefits . California is plaintiff-friendly in consumer and wage-and-hour cases and has distinct rules on opt-out and cy pres distribution of unclaimed funds.
Note: a class action filed in California state court satisfying CAFA's thresholds is freely removable to federal court.
Settlement, certification timing, and adequacy traps
A class action may be settled, dismissed, or compromised only with court approval (Rule 23(e)) after notice to the class and a fairness hearing ; in (b)(3) classes the court may give members a second opportunity to opt out. The court must define the class and appoint class counsel at certification (Rule 23(c), (g)), and certification may be altered or amended before final judgment as the case develops. A defendant cannot 'pick off' a named plaintiff by tendering full relief on the individual claim to moot the class: an unaccepted Rule 68 offer of judgment does not moot the case ( Campbell-Ewald Co. v. Gomez ).
Frequently tested traps: (1) Only (b)(3) classes have opt-out and individual notice — students wrongly assume every class member can opt out. (2) Commonality after Dukes is demanding: a generalized policy of 'discretion' delegated to local managers is not a common question capable of one-stroke resolution. (3) Under CAFA, class claims are aggregated to reach the $5 million threshold — a sharp exception to the usual rule that multiple plaintiffs cannot aggregate.
(4) Adequacy is constitutional : a member bound by an inadequately represented class judgment may collaterally attack it, so a structural conflict between subgroups (e.g., present vs. future claimants) defeats certification ( Amchem , Ortiz ).