Non Opt-Out Provision In Class Action Violates Due Process.

The Americans with Disabilities Act [42 U.S.C. § 12132; ADA] and the Unruh Civil Rights Act [Civil Code section 51] require cities to make newly built and altered sidewalks readily accessible to individuals with disabilities. After the parties in this action agreed to certify a non opt-out class involving violations of California law and settle for an injunction and nominal damages, the trial court certified the class and approved the settlement. Meanwhile, other disabled persons sued the same city for similar violations in federal court, but also alleged violations under federal law. During the settlement hearing in the state court action, objections were raised regarding the inadequacy of the settlement as well as the non opt-out provision. The California Court of Appeal, in an appeal from the approval of the settlement in the state court action, reversed the orders granting class certification and approving the settlement, stating, “Strictly speaking, parties to an agreement cannot logically bind nonparties with a provision stating the parties agree the nonparty cannot deny the agreement. So the provision is of no effect absent some mechanism by which nonparties are made party to the agreement, i.e., an order certifying the class. The non opt-out provision is of no force absent such an order. In that respect, then, the non opt-out class is best evaluated for whether certification was proper, not whether the settlement was fair.” (Carter v. City of Los Angeles  (Cal. App. Second Dist., Div. 1; March 13, 2014)224 Cal.App.4th 808, [169 Cal.Rptr.3d 131].)