Carabini

In this case we hold an order certifying a class action should only be made upon proper notice and subject to the right of an opposing party to submit evidence in opposition. This is true whether the issue arises on the motion of a party or on the court’s own motion.

This purported class action arises out of the sale of precious metal investment contracts by Carabini and the joining petitioners to the proposed class members. On May 5,1993, the trial court ordered discovery limited to class certification. On June 8, petitioners filed a statement under Code of Civil Procedure section 170.1, subdivision (a)(6) to disqualify the trial judge. On June 16, plaintiffs filed a motion for certification of the class; the motion was noticed for hearing on July 14. The parties subsequently agreed to take the certification motion and a demurrer also noticed for July 14, off calendar, pending a resolution of the disqualification motion.

On September 23, petitioners’ disqualification request was finally rejected. The parties appeared for a scheduled “evaluation conference" on November 16. At that time, the court inquired as to the status of the class certification motion and was…