Court of Appeal delivers stunnig rebuke of misclassification certification opinions based on Brinker

I was pretty confident that you would need to have an unhealthy love of pain to take on a manger misclassification class action after the long line of bad outcomes for those cases (Dunbar, Mora, Arenas, Tuesday Morning, etc.).  But Martinez v. Joe's Crab Shack Holdings, 221 Cal. App. 4th 1148 (pub. ord. Dec. 4, 2013), once again channeling the ghost of Brinker, makes me think that we are back to wait-and-see time.  And, yes, another case that deserved attention a lot sooner than this.  That's what I get for starting my own firm.  Anyhow, on to our story...

In Martinez, employees of different Joe's Crab Shack (JCS) restaurants in California filed suit, seeking to represent a class of salaried managerial employees who worked at JCS restaurants in California.  The parties submitting conflicting groups of declarations.  Presented with this evidence, the trial court denied the motion for class certification on the grounds plaintiffs had failed to establish (1) their claims were typical of the class, (2) they could adequately represent the class, (3) common questions predominated the claims, and (4) a class action is the superior means of resolving the litigation.  The first two findings were based on plaintiffs' inability to estimate the number of hours spent on individual exempt and nonexempt tasks and their admission that the amount of time spent on particular tasks varied from day to day. As to the third and fourth findings, the trial court acknowledged the existence of common questions of law and fact, but concluded there remained significant individual disputed issues of fact relating to the amount of time spent by individual class members on particular tasks. The variability among individual members of the putative class would require adjudication of the affirmative defense of exemption for each class member, “a time- and resource-consuming process.” The trial court rejected as unfair plaintiffs' proffered trial plan, under which their expert proposed to assess the rate at which managerial employees are engaged in nonexempt tasks through statistical sampling methods. Under these circumstances, the court concluded, a class action would not be the superior means of resolving the litigation.

Examining the trial court’s reasoning, the Court began with a discussion of its typicality and adequacy findings, rejecting the narrow analysis supplied by the trial court:

With respect to typicality, this analysis suffers from an overly focused examination of the facts that looked toward individual differences rather than commonality. In essence, the trial court resolved the factual conflict between plaintiffs' declarations, in which they stated nonexempt tasks routinely occupied more than 50 percent of their time, and their deposition testimony that they could not estimate the number of hours they spent on individual tasks because those tasks varied day to day. The inability of the witnesses to specify time spent on particular tasks is hardly surprising, however, and does not create an issue that must be resolved on a motion for class certification. What was common to plaintiffs, in addition to the standard policies implemented by CAI at each of their restaurants, were their assertions their tasks did not change once they became managers; they performed a utility function and routinely filled in for hourly workers in performing nonexempt tasks; and they worked far in excess of 40 hours per week without being paid overtime wages. Their claims—and the defense of executive exemption to those claims—are thus typical of the class.

Martinez, 221 Cal. App. 4th at 1159.  Turning to the conflict between general managers and assistant manager, the Court agreed that antagonism existed but found it non-fatal:  “This apparent conflict, however, is not fatal. In the interest of preserving the claims of subordinate managerial employees, the trial court may on remand exercise its discretion to create a general managers subclass or to exclude general managers entirely from the class definition.” Martinez, 221 Cal. App. 4th at 1160.

Next, the Court found that the trial court’s reasoning regarding commonality shifted the burden of proof improperly onto the plaintiffs:

The trial court's failure here to focus on the impact of JCS policies and practices on its managerial employees essentially shifted the burden of disproving the executive exemption to plaintiffs. Indeed, although the court recognized the evidence established the existence of a finite task list that could aid in the identification of common issues among the putative class members, its analysis effectively omitted any consideration of this potential class-wide proof.

A recent decision from our colleagues in Division Two of this court simplifies this endeavor and illustrates the enormous cost of resolving these claims on an individual, rather than a class-wide basis. (See Heyen v. Safeway Inc. (2013) 216 Cal.App.4th 795, 157 Cal.Rptr.3d 280 (Heyen ).)21 After reviewing analogous regulations for mercantile workers, Heyen articulated the appropriate manner of evaluating an employer's duties: “Several general principles emerge from these regulations. First, work of the same kind performed by a supervisor's nonexempt employees generally is ‘nonexempt,’ even when that work is performed by the supervisor. If such work takes up a large part of a supervisor's time, the supervisor likely is a ‘nonexempt’ employee. [Citations.] [¶] Second, the regulations do not recognize ‘hybrid’ activities—i.e., activities that have both ‘exempt’ and ‘nonexempt’ aspects. Rather, the regulations require that each discrete task be separately classified as either ‘exempt’ or ‘nonexempt.’ [Citations.] [¶] Third, identical tasks may be ‘exempt’ or ‘nonexempt’ based on the purpose they serve within the organization or department. Understanding the manager's purpose in engaging in such tasks, or a task's role in the work of the organization, is critical to the task's proper categorization. A task performed because it is ‘helpful in supervising the employees or contribute[s] to the smooth functioning of the department’ is exempt, even though the identical task performed for a different, nonmanagerial reason would be nonexempt. [Citations.] [¶] Finally, in a large retail establishment where the replenishing of stocks of merchandise on the sales floor ‘is customarily assigned to a nonexempt employee, the performance of such work by the manager or buyer of the department is nonexempt.’ [Citation.] Similarly, in such a large retail establishment, a manager's participation in making sales to customers is nonexempt, unless the sales are made for ‘supervisory training or demonstration purposes.’ ” (Id. at pp. 822–823, 157 Cal.Rptr.3d 280.)

Applying these principles to the tasks identified by CAI and Landry's, inventory, restocking, serving, cooking, bussing tables, cleaning and other tasks ordinarily performed by nonexempt employees remain nonexempt when performed by a managerial employee. Likewise, when a managerial employee fills in for a nonexempt employee, the task remains nonexempt. On the other hand, if the managerial employee is performing the task for the purpose of supervisory training or demonstration, the task is exempt. California law does not recognize a hybrid category in which the employee is deemed to be performing an exempt task at the same time he or she is performing a nonexempt task. (Heyen, supra, 216 Cal.App.4th at p. 826, 157 Cal.Rptr.3d 280.)

Martinez, 221 Cal. App. 4th at 1163-64.

Finally, in a stunning, but subtle rebuke of prior decisions on misclassification, the Court identified a new mandate from Brinker, saying:

We have not ignored the substantial case authority, including our own, upholding trial court decisions not to certify class actions for claims similar to those raised here (see, e.g., Dailey v. Sears, Roebuck & Co. (2013) 214 Cal.App.4th 974, 154 Cal.Rptr.3d 480; Mora v. Big Lots Stores, Inc., supra, 194 Cal.App.4th 496, 124 Cal.Rptr.3d 535; Arenas v. El Torito Restaurants, Inc. (2010) 183 Cal.App.4th 723, 108 Cal.Rptr.3d 15); nor do we express any disagreement with the outcome of those cases. However, we understand from Brinker, supra, 53 Cal.4th 1004, 139 Cal.Rptr.3d 315, 273 P.3d 513, a renewed direction that class-wide relief remains the preferred method of resolving wage and hour claims, even those in which the facts appear to present difficult issues of proof. By refocusing its analysis on the policies and practices of the employer and the effect those policies and practices have on the putative class, as well as narrowing the class if appropriate, the trial court may in fact find class analysis a more efficient and effective means of resolving plaintiffs' overtime claim.

Martinez, 221 Cal. App. 4th at 1165.

At least until Duran is decided, there appears to be a change of direction in the pendulum following Brinker.  I would note that in the last Class Re-Action Podcast, we discussed with our mediator panel whether there was something akin to a market correction to the overly hostile treatment class actions received in recent years.  The panel generally though it was too soon to tell.  It's looking less anecdotal with every decision.

Wal-Mart Stores, Inc. v. Dukes receives some analysis from a California Court of Appeal

While Wal-Mart Stores, Inc. v. Dukes was quickly applied by lower federal courts, it took some time to see how California courts would apply Dukes.  (Heck, it took quite some time for me to get around to writing this post, so I suppose we can excuse others for not racing their appeals up the ladder just to generate opinions for us to dwell upon.)  In Williams v. Superior Court (Allstate Ins. Co.), 221 Cal. App. 4th 1353 (Dec. 6, 2013), the Court of Appeal (Second Appellate District, Division Eight) offered us our first look at how a California Court of Appeal views the relevance of Dukes in a state class action, outside the Title VII context.

The background of the case generated some additional interesting points, so it's worth a quick summary.  The trial court initally certified a class. After Wal–Mart Stores, Inc. v. Dukes was decided, the parties and trial court discussed Dukes. The trial court thereafter permitted Allstate to file a motion based on Dukes for decertification of the Off–the–Clock class. In its decertification motion, Allstate emphasized two points from Dukes. First, “there must be some ‘glue’ holding the class members' claims together, such that common facts can resolve the claims for everyone in the class.” And, second, “a trial-by-formula using statistical sampling is an improper means to try class claims, as it deprives a defendant of due process by precluding a defendant from proving its individual defenses against each class member.” Allstate told the trial court, “In light of the U.S. Supreme Court's decision in Wal–Mart Stores, Inc. v. Dukes [, supra,] 131 S.Ct. 2541, which the Court admitted changed the relevant legal landscape for this case, and additional discovery since the class certification order, it is apparent that the close call on certification must be reversed.”  The trial court agreed, and decertified the Off–the–Clock class and the corresponding Unfair Competition Claim.

The Court of Appeal began its discussion by addressing the standard applicable to decertification motions generally:

We review a decertification order for an abuse of discretion. (Brinker, supra, 53 Cal.4th at p. 1022, 139 Cal.Rptr.3d 315, 273 P.3d 513; Sav–On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326, 17 Cal.Rptr.3d 906, 96 P.3d 194; Ghazaryan v. Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524, 1530, 87 Cal.Rptr.3d 518.) Decertification requires new law or newly discovered evidence showing changed circumstances. (Weinstat v. Dentsply Internat., Inc. (2010) 180 Cal.App.4th 1213, 1225, 103 Cal.Rptr.3d 614.) A motion for decertification is not an opportunity for a disgruntled class defendant to seek a do-over of its previously unsuccessful opposition to certification. “Modifications of an original class ruling, including decertifications, typically occur in response to a significant change in circumstances, and ‘[i]n the absence of materially changed or clarified circumstances ... courts should not condone a series of rearguments on the class issues.’ [Citation.].” (Driver v. AppleIllinois, LLC N.D.Ill., Mar. 2, 2012, No. 06 C 6149) 2012 WL 689169, *1 (Driver ).) “A class should be decertified ‘only where it is clear there exist changed circumstances making continued class action treatment improper.’ ” (Green v. Obledo (1981) 29 Cal.3d 126, 147, 172 Cal.Rptr. 206, 624 P.2d 256.)

Williams, 221 Cal. App. 4th at 1360-61.  Frankly, the point that a decertification motion is not a "do-over" was a point long overdue.  Talk about motions that are nothing but billing opportunities and time wasters.

Then the Court turned its attention to Dukes, giving it all the love it richly deserves.  Since Dukes was effectively the only reason for decertification, essentially all of the discussion was about Dukes.  The Court began by addressing the unique factual background:

The trial court erred in concluding Dukes required decertification. In Dukes, a nationwide class of 1.5 million current and former female employees from 3,400 stores sued Wal–Mart, alleging that the company engaged in a pattern or practice of gender discrimination in violation of Title VII of the Civil Rights Act of 1964. The female plaintiffs were required to prove that thousands of store managers shared the same discriminatory animus toward women in denying them promotions and pay raises. The Supreme Court reversed the district court's certification order on the grounds that the plaintiffs could not offer “significant proof that Wal–Mart operated under a general policy of discrimination.” In reversing class certification, the Court found that there was no unifying theory holding together “literally millions of employment decisions” that turned on the subjective intents of thousands of supervisors in thousands of stores to explain for each class member the “crucial question why was I disfavored” for a promotion or pay raise. (Italics original.) (Dukes, supra, 131 S.Ct. at p. 2552; see e.g. Espinoza v. 953 Assocs. LLC (S.D.N.Y.2011) 280 F.R.D. 113, 130 [distinguished Dukes where “claims were based on the countless subjective decisions made by Wal–Mart's local supervisors regarding compensation and promotions” from worker's overtime claims where workers alleged employer “failed to pay minimum wages and overtime compensation as a result of certain policies and practices.”]; see also Ross v. RBS Citizens, N.A. (7th Cir.2012) 667 F.3d 900, 908–910judgment vacated and matter remanded for further reconsideration in light of Comcast Corp. v. Behrend (2013) ––– U.S. –––, 133 S.Ct. 1426, 185 L.Ed.2d 5153 [distinguishing Dukes in case involving 1,129 class members who alleged they were unlawfully denied overtime because of the employer's “unofficial policy” which was “the glue holding together [the class members] based on the common question of whether an unlawful overtime policy prevented employees from collecting lawfully earned overtime compensation.”].)

Williams, 221 Cal. App. 4th at 1361-62.  The Court then discussed the inapplicability of the Rule 23(b)(2) standard to the case before it:

Despite the trial court's turning to Dukes' analysis of the restrictions on, if not outright unavailability of, money damages under rule 23(b)(2) to explain the trial court's decertification order, appellant was not pursuing a 23(b)(2) type of class action. Appellant instead sought class certification under California's class action statute, Code of Civil Procedure section 382.5 Section 382 is analogous to subpart (a) of Rule 23, which establishes the four requirements of a class action. (In re Tobacco II Cases (2009) 46 Cal.4th 298, 318, 93 Cal.Rptr.3d 559, 207 P.3d 20.) The trial court's reliance on Dukes' analysis of subpart (b)(2) of Rule 23—a class action seeking injunctive relief—was thus misplaced because appellant's class members here were seeking principally, if not exclusively, monetary damages, that the federal rules establish is a different type of class action. (Compare Rule 23(b)(2) with 23(b)(1) and 23(b)(3); Dukes, supra, 131 S.Ct. at p. 2558 [“monetary claims belong in Rule 23(b)(3)”].) More fundamentally, the concern expressed in Dukes about the unmanageability of trying 1.5 million claims which depended on proof of the subjective intents of thousands of individual supervisors is not present here. Appellant asserts there is a companywide policy to deny overtime pay. The resolution of that issue does not involve the subjective intents of countless supervisors.

Williams, 221 Cal. App. 4th at 1363-64.

Next, the Court explained that the Dukes discussion of the right to assert statutory defenses under Title VII did not have a corresponding analogue in the Williams matter:

The Supreme Court's second area of focus in Part III of Dukes involved the statutory affirmative defenses in the anti-discrimination statute Title VII. Because the affirmative defenses were statutory, Dukes concluded a class proceeding could not deprive Wal–Mart of its right to present those defenses. (Dukes, supra, 131 S.Ct. at pp. 2560–2561.) As those affirmative defenses required individualized evidence, Dukes disapproved a “Trial by Formula” of Wal–Mart's affirmative defenses because it prevented Wal–Mart from offering its individualized evidence.

Williams, 221 Cal. App. 4th at 1364.

Finally, the Court concluded that nothing in Dukes rendered the original certification order of the trial court incorrect, which necessarily rendered decertification inappropriate.  There is one major lesson here: you can't predict with very much accuracy the ultimate impact of a big decision when it is first released.  This opinion stems from Brinker, which is having a much more far reaching impact than the subject matter of that case initially suggested.  Dukes is having less of an impact at the state level.

An exceptional oral argument on the D.R. Horton arbitration issue

One of the things that had me preoccupied recently was an oral argument in the Ninth Circuit.  Coincidentally, the same day that I was there, Dennis Moss, one of my former employers, was arguing his own case before the Ninth Circuit.  In Fatemeh Johnmohammadi v. Bloomingdale's, Inc., the same issue of Section 7 and 8 rights running up against class action waivers addressed in D.R. Horton was raised.  You can listen to the argument here.  In light of the Fifth Circuit's decision (which I haven't yet written about), it seems like a better than typical bet that if the Ninth Circuit were somehow convinced to part company with the Fifth Circuit, the Supreme Court would end up with the final say on this debate.

Class certification in California is still actually a "procedure"

What to make of this one?  I should have commented on it long ago, I know, but that start-your-own-law-firm thing is fairly time consuming, so I get to writing when I can.   So while I was doing some show prep for this upcoming weekend's podcast, I finally took a look at Benton v. Telecom Network Specialists, Inc. (Oct. 16, 2013) to see for myself what the Court of Appeal (Second Appellate District, Division Seven) did that has many plaintiff-side practitioners so excited.

In Benton, the plaintiffs, cell-phone tower technicians, filed a wage and hour class action lawsuit against Telecom Network Services (TNS) alleging, among other things, violation of meal and rest break requirements and failure to pay overtime.  Most of the proposed class of technicians were hired and paid by staffing companies that contracted with TNS. The remainder of the technicians were hired and paid by TNS directly.  Plaintiffs alleged that TNS was the employer of both categories of technicians and moved to certify their claims.  The trial court denied certification, holding that TNS’s liability could not be established “through common proof because: (1) the technicians worked under ‘a diversity of workplace conditions’ that enabled some of them to take meal and rest breaks; and (2) the staffing companies that hired and paid many of the TNS technicians had adopted different meal, rest break and overtime policies throughout the class period.”

The Court of Appeal reversed, remanding for further proceedings.  In an extensive opinion tracking development of the certification standards as applied to wage and hour cases beginning primarily with Brinker, the Court also examined decisions in Bradley v. Networkers International, 211 Cal. App. 4th 1129 (2012) and Faulkinbury v. Boyd & Associates, 216 Cal. App. 4th 220 (2013).

Discussing Bradley, the Court said:

On remand from the Supreme Court, however, the Court of Appeal concluded that, under the analysis set forth in Brinker, the trial court had improperly focused on individual issues related to damages, rather than on the plaintiffs’ theory of liability. (Bradley, supra, 211 Cal.App.4th at p. 1151.) According to the court, Brinker had clarified that “in ruling on the predominance issue in a certification motion, the court must focus on the plaintiff’s theory of recovery and assess the nature of the legal and factual disputes likely to be presented and determine whether individual or common issues predominate.” (Id. at p. 1150.) The court further explained that “plaintiffs’ theory of recovery [wa]s based on Networkers’ (uniform) lack of a rest and meal break policy and its (uniform) failure to authorize employees to take statutorily required rest and meal breaks. The lack of a meal/rest break policy and the uniform failure to authorize such breaks are matters of common proof. Although an employer could potentially defend these claims by arguing that it did have an informal or unwritten meal or rest break policy, this defense is also a matter of common proof.” (Id. at p. 1150.)

Slip op., at 22-23.  Notice that, at least in the context of these wage particular wage & hour claims, which have a natural tendency to be governed by some set of implementing policies, the certification question endorsed in this case is the question of whether the defendant's policy is legal, not whether any particular employee stumbled into compliant behavior.  Similarly, discussing Faulkinbury, the Court said:

Upon remand from the Supreme Court, the appellate court concluded that Brinker had rejected the mode of analysis set forth in its original opinion. As to plaintiffs’ meal break claim, the appellate court explained that Brinker clarified that the defendant’s liability would attach “upon a determination that [defendant’s] uniform on-duty meal break policy was unlawful . . . . Whether or not the employee was able to take the [off-duty] required break goes to damages, and ‘[t]he fact that individual [employees] may have different damages does not require denial of the class certification motion.’ [Citation.]” (Faulkinbury, supra, 216 Cal.App.4th at p. 235.)

Slip op., at 24-25.  This line of cases appears to strongly emphasize what was, for a time, an argument receiving less traction: variations in damages does not require denial of certification.

After establishing the framework for its analysis, the Court examined the trial court’s ruling:

The written order (as well as statements made at the motion hearing) make clear that the trial court did not believe TNS would be liable upon a determination that its lack of a meal and rest policy violated applicable wage and hour requirements; rather, it concluded that TNS would become liable only upon a showing that a technician had missed breaks as a result of TNS’s policies.

Slip op., at 27.  The Court then rejected the trial court’s mode of analysis, holding that Brinker, and then Bradley and Faulkinbury clarified the correct approach:

As explained in Bradley and Faulkinbury, however, Brinker “expressly rejected” this mode of analysis. (Bradley, supra, 211 Cal.App.4th at pp. 1143, 1151; Faulkinbury, supra, 216 Cal.App.4th at pp. 235, 237.) As succinctly stated in Faulkinbury: “the employer’s liability arises by adopting a uniform policy that violates the wage and hour laws. Whether or not the employee was able to take the required break goes to damages, and ‘[t]he fact that individual [employees] may have different damages does not require denial of the class certification motion.’ [Citation.]” (Faulkinbury, supra, 216 Cal.App.4th at p. 235; see also Bradley, supra, 211 Cal.App.4th at p. 1151 [“under the logic of [Brinker],when an employer has not authorized and not provided legally-required meal and/or rest breaks, the employer has violated the law and the fact that an employee may have actually taken a break or was able to [take a break] during the work day does not show that individual issues will predominate in the litigation”].) Indeed, Bradley and Faulkinbury both specifically concluded that evidence showing that some class members’ working conditions permitted them to take breaks, while others did not, was not a sufficient basis for denying certification. (See Faulkinbury, supra, 216 Cal.App.4th at pp. 236-237 [evidence that some employees were able to “take breaks at [their] posts”, while others “could not leave the assigned post for a rest break” does not “establish individual issues of liability”]; Bradley, supra, 211 Cal.App.4th at p. 1150 [evidence that some employees worked “alone for long periods of time” or “took the authorized rest or meal break” was insufficient to show individual issues predominated.)

Slip op., at 27.  The Court continued in this same vein, thoroughly rejecting both the defendant’s theories and trial court’s method of analysis, repeatedly holding that variations in experiences by class members impacted their damages, not the plaintiffs’ theory of the case, which challenged the absence of lawful policies required by the Wage Order.

You can, at least in this context, certify the question of whether the defendant did the right thing, not the question of whether the plaintiffs always received the right thing.  In other words, luck won't save you; legal policies, implemented as written, will.  Somehow, I think the wage & hour defense bar is celebrating this just as much... 

On remand after Brinker, Court of Appeal reconsiders prior decision and orders certificaiton in Faulkinbury

The press of obligations at work left little time for my blogging, which I regret.  And, I haven't seen anything all that interesting in the class action/complex litigation arena ​in the last few weeks.  That did change last week when, in Faulkinbury v. Boyd & Associates, Inc. (May 10, 2013), the Court of Appeal (Fourth Appellate District, Division Three) [What?!?] reconsidered its prior decision following remand after Brinker​.  The Court concluded that, along with the overtime class it previously ordered certified, the meal period and rest break claims should also have been certified.

Just to summarize, if my prose above was too painful to follow, the trial court denied class certification as to all claims, covered by three subclasses referred to as the Meal Break Class, the Rest Break Class and the Overtime Class.  The Court of Appeal, in a decision previously published as Faulkinbury v. Boyd & Associates, Inc., 185 Cal. App. 4th 1363 (2010), review granted Oct. 13, 2010, S184995 (Faulkinbury I), reversed the order denying certification of the overtime class but affirmed the order denying certification of the Meal Break Class and the Rest Break Class.  Then Brinker​.  Then review granted.  Then remand with an order to vacate Faulkinbury I and reconsider in light of Brinker.

Summarizing the Supreme Court's guidance regarding the consideration of merits at the certification stage, the Court said:​

The Supreme Court confirmed a class certification motion should not be a vehicle for resolving the merits of a claim, but recognized too that “[w]hen evidence or legal issues germane to the certification question bear as well on aspects of the merits, a court may properly evaluate them.”  (Brinker, supra, 53 Cal.4th at pp. 1023‑1024.)  The court concluded:  “Presented with a class certification motion, a trial court must examine the plaintiff’s theory of recovery, assess the nature of the legal and factual disputes likely to be presented, and decide whether individual or common issues predominate.  To the extent the propriety of certification depends upon disputed threshold legal or factual questions, a court may, and indeed must, resolve them.  Out of respect for the problems arising from one-way intervention, however, a court generally should eschew resolution of such issues unless necessary.  [Citations.]  Consequently, a trial court does not abuse its discretion if it certifies (or denies certification of) a class without deciding one or more issues affecting the nature of a given element if resolution of such issues would not affect the ultimate certification decision.”  (Id. at p. 1025.)

Slip op., at 6.​  Continuing, the Court observed that the Supreme Court "emphasized that '[c]laims alleging that a uniform policy consistently applied to a group of employees is in violation of the wage and hour laws are of the sort routinely, and properly, found suitable for class treatment.'"  Slip op., at 7.  The support for that last proposition was summarized as follows:

Brinker court cited three Court of Appeal cases:  Jaimez v. Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286 (Jaimez); Ghazaryan v. Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524 (Ghazaryan); and Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193 (Bufil).  In Jaimez, Ghazaryan, and Bufil, the Court of Appeal held the trial court abused its discretion by denying class certification.  (Jaimez, supra, at pp. 1299‑1307; Ghazaryan, supra, at pp. 1534‑1538; Bufil, supra, at pp. 1205‑1206.)  These courts reasoned that the plaintiffs were challenging a uniform employment policy that allegedly violated California law, and, therefore, this violation could be proved (or disproved) through common facts and law.  (Jaimez, supra, at pp. 1299‑1300; Ghazaryan, supra, at pp. 1536‑1538; Bufil, supra, at p. 1206.)  The courts in Jaimez and Ghazaryan also concluded that common issues predominated even if the employment policy did not affect each employee in the same way and damages would need to be proved individually.  (Jaimez, supra, at pp. 1301, 1303‑1305; Ghazaryan, supra, at p. 1536.)

Slip op., at 7, n. 1.

​This is one area in which California certification procedural law appears to track somewhat more favorably for certification than does federal law applying Rule 23.  At the very least, it appears to conceptually negate the flavor-of-the-month argument, magically extracted from Wal-Mart​, that a defendant is entitled to assert individual defenses in every case against every class member, thereby defeating class certification in virtually every conceivable case (which, logically, could not be true or someone might have noticed this over the decades upon decades of class action jurisprudence, but I digress as I so often do).  Wal-Mart​, a case about a specific intent type of violation, says nothing of the sort, absent very creative quote extraction, coupled with very creative editorial content used to describe that very creative quote extraction. But stated another way, Brinker​ doesn't diverge from the federal track so much as hold the line that California has charted for some time, while cagey defense counsel try to move the tracks over on the federal side.  I suspect that, when the dust settles, the tracks will have moved back to a point closer to convergence, but not until there isn't much left of that Wal-Mart horse to beat.

Turning back to the Faulkinbury II decision, ​other observations of note include:

• Justice Werdegar's concurrence in Brinker is identified as providing guidance on the question of missed meal breaks, Slip op., at 10.​
• ​The Court agreed with the analysis of Brinker supplied by Bradley v. Networkers Internat., LLC, 211 Cal. App. 4th 1129 (2012), Slip op., at 16.
• Without deciding the lawfulness of the policy, the Court concluded that the question of whether the on-duty meal period policy was legal was a question suitable for certification, even if questions existed as to the frequency that meal periods were missed or the reasons as to why they were missed.  Slip op., at 15-16.
  

I can't promise that work obligations won't steal blogging time, but I will keep doing my best to highlight major decisions and events, intermingled with my brand of commentary.

In Busk v. Integrity Staffing Solutions, Ninth Circuit joins others to hold that FLSA and Rule 23 Classes are not incompatible

Today the Ninth Circuit, in Busk v. Integrity Staffing Solutions, Inc. (9th Cir. April 12, 2013) joined other circuits in concluding that FLSA opt-in collective actions are not incompatible with state law claims asserted as Rule 23 class actions:

In sum, we agree with the other circuits to consider the issue that the fact that Rule 23 class actions use an opt-out mechanism while FLSA collective actions use an opt-in
mechanism does not create a conflict warranting dismissal of the state law claims.​

Slip op., at 9.​  I will write up a bit more later, but this holding should put an end to the wasteful motion practice around this issue in the Ninth Circuit.  Given the agreement manifesting between the Circuits, it is unlikely that we will see Supreme Court review of this issue any time soon.

Gonzalez v. Downtown LA Motors agrees with Armenta and rejects compensation averaging on minimum wage claims

In Armenta v. Osmose, Inc., 135 Cal. App. 4th 314 (2005), one Court of Appeal (2/6) concluded that the governing Wage Order required payment of the minimum wage during every hour worked (as opposed to dividing compensation by total hours worked to check whether the average​ hourly compensation exceeds minimum wage).  In Gonzalez v. Downtown LA Motors, LP, et al., (April 2, 2013), the Court of Appeal (Second Appellate District, Division Two) examined the same issue, and reached the same conclusion.

In Gonzalez, the defendant compensated its automotive service technicians on a what was characterized as a “piece rate” basis for repair work.  The question before the trial court was whether the defendant was also required to pay those technicians a separate hourly minimum wage for time spent during their work shifts waiting for vehicles to repair or performing other non-repair tasks directed by the employer.  The defendant argued that it was not required to pay the technicians a separate hourly minimum wage for such time because it ensured that a technician's total compensation for a pay period never fell below what the defendant called a “minimum wage floor,” calculated as the total number of hours the technician was at work during the pay period (including hours spent waiting for repair work or performing non-repair tasks), multiplied by the applicable minimum wage rate. The employer did so by supplementing a technician's pay, if necessary, to cover any shortfall between the technician's piece-rate wages and the minimum wage floor.  The trial court did not find this persuasive, concluding that each hour had to be separately compensated at above minimum wage, even if other hours were compensated well above the minimum wage.  The Court of Appeal agreed.

In its analysis of Armenta, the Court observed:

Finally, the court in Armenta considered "the policies underlying California's minimum wage law and regulations" which "reflect a strong public policy in favor of full payment of wages for all hours worked." (Armenta, supra, 135 Cal.App.4th at p. 324.) Given that public policy, the court concluded that a method of "averaging all hours worked 'in any work week' to compute an employer's minimum wage obligation under California law is inappropriate." (Ibid.) The court in Armenta held that use of such an averaging method to determine an employer's minimum wage obligation violates California law and that "[t]he minimum wage standard applies to each hour worked by [the employees] for which they were not paid." (Ibid.)

Slip op., at 11-12.​  Gonzalez, when coupled with Armenta, solidifies the construction of California's minimum wage obligation.

California Supreme Court activity for the week of March 18, 2013

​I overlooked last week's Conference Results from the California Supreme Court until today, but better late than never.​  On March 20, 2013, the Court denied review in Bradley v. Networkers International (December 12, 2012).  See earlier post here.  This is a significant result, as the case applies Brinker to a certification analysis in the context of whether workers were misclassified as independent contractors.

Good news for Chinese Daily News when Ninth Circuit vacates certification under 23(b)(2), remands for further review of 23(b)(3) certification

The long-running saga of Wang v. Chinese Daily News, Inc. took its latest turn today, when the Ninth Circuit, on remand from the United States Supreme Court, issued the most decision in Wang v. Chinese Daily News, Inc. (9th Cir. Mar. 4, 2013).  The Ninth Circuit reversed various aspects of the District Court's certification order after applying Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) to the District Court's decision.

First, the Court vacated the District Court's Rule 23(a)(2) analysis and directed the District Court to conduct the rigorous analysis required by Wal-Mart:

We vacate the district court’s Rule 23(a)(2) commonality finding and remand for reconsideration in light of Wal-Mart. On remand, the district court must determine whether the claims of the proposed class “depend upon a common contention . . . of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart, 131 S. Ct. at 2551. Plaintiffs must show “significant proof that [CDN] operated under a general policy of [violating California labor laws].” Ellis, 657 F.3d at 983 (quoting Wal-Mart, 131 S. Ct. at 2553 (alteration omitted)). However, plaintiffs need not show that every question in the case, or even a preponderance of questions, is capable of classwide resolution. So long as there is “even a single common question,” a would-be class can satisfy the commonality requirement of Rule 23(a)(2).

Slip op., at 10.

Next, the Court quickly concluded that the monetary relief sought by the plaintiffs was not "incidental."  The Court reversed the District Court's order certifying the class under Rule 23(b)(2).

Finally, the Court remanded for further consideration as to whether certification was warranted under Rule 23(b)(3):

For two reasons, we remand to the district court for reconsideration of the propriety of class certification under Rule 23(b)(3). First, the district court’s conclusion that common questions predominate in this case rested on the fact, considered largely in isolation, that plaintiffs are challenging CDN’s uniform policy of classifying all reporters and account executives as exempt employees. See Wang, 231 F.R.D. at 612–13. In two recent decisions, we criticized the nature of the district court’s Rule 23(b)(3) predominance inquiry in this case. See In re Wells Fargo Home Mortg. Overtime Pay Litig., 571 F.3d 953, 958–59 (9th Cir. 2009); Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 944–48 & n.14 (9th Cir. 2009). We observed that the district court in this case “essentially create[d] a presumption that class certification is proper when an employer’s internal exemption policies are applied uniformly to the employees.” In re Wells Fargo Home Mortg. Overtime Pay Litig., 571 F.3d at 958. We wrote that such a presumption “disregards the existence of other potential individual issues that may make class treatment difficult if not impossible.” Id. The main concern of the predominance inquiry under Rule 23(b)(3) is “the balance between individual and common issues.” Id. at 959. “[A] district court abuses its discretion in relying on an internal uniform exemption policy to the near exclusion of other factors relevant to the predominance inquiry.” Vinole, 571 F.3d at 946.

Slip op., at 13.  The Court also noted that Brinker impacted the analysis of meal period claims and required evaluation by the District Court.

Recent California Supreme Court Activity

While I configured and wired a veritable recording studio, the world marched on, with the issuance of interesting appellate opinions here and elsewhere in U.S.  The California Supreme Court has been up to some interesting activity this year as well.  For instance, the recent debpulication of opinion from the Second Appeallate District, Division Eight, that seemed inconsistent with the manner in which Brinker instructed courts to evaluate class issues, at least in the wage & hour field.  And in the last few weeks the California Supreme Court's Conference events included the following item of note:

• The Court granted review in Ayala v. Antelope Valley Newspapers, Inc. (pub ord. Oct. 17, 2012), previously published at 210 Cal. App. 4th 77.  In Ayala the Court of Appeal partially reversed a trial court order denying class certification.  The wage & hour case stems from the classification of workers as independent contractors.

The grant of review in Ayala raises the question of whether Bradley v. Networkers International LLC, 211 Cal. App. 4th 1129 (2012), as modified (Jan. 8, 2013), might turn on some issue that the Supreme Court intends to resolve in Ayala.