In cases involving wage and hour claims, "class suitability should not be determined by demurrer." So said California's Courts of Appeal for the Second District after reversing a trial court decision in Gutierrez v. California Commerce Club, Inc. (2010). Wage and hour cases are routinely tried as class actions because they usually involve a single set of facts and one question of law applicable to all members. In these cases, the lead plaintiff must only allege that institutional practices affected all potential class members in the same manner and that liability issues can be determined on a class-wide basis.

In the case cited above, Gutierrez was lead plaintiff in a class action against California Commerce Club, Inc., alleging that his employer had denied meal and rest breaks to certain hourly, non-union employees. The trial court sustained a demurrer against Gutierrez's third amended complaint on the ground that Gutierrez had failed to notify the court in the pleading who was in the class, what they do, how they are related, and why the plaintiff was the proper person to represent the class.