Carter v. Figueroa Group

 

 

 

 

 

 

 

 

Filed 11/7/13  Carter v. Figueroa Group CA2/2

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b).  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND
APPELLATE DISTRICT

 

DIVISION
TWO

 

 
>

BRANDI CARTER,               Plaintiff and Appellant,               v.   FIGUEROA GROUP, INC.,               Defendant and Respondent.

B240870         (Los Angeles County       Super. Ct. No. BC437344)

 

 

            APPEAL from
an order of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.  Luis A. Lavin,
Judge, Barbara A. Meiers, Judge. 
Affirmed.

 

            Knapp,
Petersen & Clarke and Stephen M. Harris for Plaintiff and Appellant.

 

            Law Offices
of Rheuban & Gresen, Steven V. Rheuban and Robert C. Hayden for Defendant
and Respondent.

 

 

 

 

* * * * * *

            Plaintiff
and appellant Brandi Carter filed a complaint against defendant and respondent
Figueroa Group, Inc., alleging a number of Labor Code violations and other
employment-related claims.  She sought to
certify a class of individuals who performed as nude or semi-nude dancers at a
club owned and operated by the Figueroa Group. 
The trial court denied the motion, ruling appellant failed to meet her
burden to satisfy each element of the community of interest requirement
necessary for class certification.  She
did not show either that common questions predominated or that she was a
typical and an adequate class representative.

            We
affirm.  Substantial evidence supported
the trial court’s order.

FACTUAL AND
PROCEDURAL BACKGROUND

            >The Parties.

The Figueroa Group owns and operates Rio Gentlemen’s
Club (Rio), located in South Central Los Angeles.href="#_ftn1" name="_ftnref1" title="">^[1]  Pursuant to a permit issued by the City of Los Angeles, Rio offers nude and semi-nude
live entertainment, provided by dancers who enter into lease agreements with Rio.  Under the lease agreements, dancers leased or
rented from Rio a non-exclusive right to use the stage area and other portions
of the premises for the purpose of performing nude, semi-nude or bikini
entertainment.  Each dancer charged each
customer independently, and the customer paid the dancer directly.  The lease agreements also required each dancer
to pay “rent” for each private dance in a set sum according to whether the
dance was a nude, topless or bikini dance, and to pay a set fee for dancing on
the stage.  The lease agreements further
provided that the parties agreed any amounts a dancer received from a customer
beyond the set fee “constitutes ‘tips’ as defined by law and shall remain
exclusive property of [the] performer.”

            Appellant has been the lead
plaintiff in other cases against clubs that provide nude and semi-nude
dancing.  She did not recall where Rio was located nor the exact
time period she worked there, estimating she was there for approximately three
months sometime in mid-2006.  She did not
recall how she came to work at Rio or anything about her first day of work.  Though she did not recall doing so, she
assumed she signed a contract because that is what she typically did in order
to dance at a club.  She did not believe
that she provided her social security number on the contract.  She did not recall anything about other Rio dancers,
managers or employees.  She did not
recall what type of dances she did at Rio or the amount she charged for
them.  She did not recall how much money
she made while working at Rio.  On the
basis of her experience with other clubs, she did not believe there was any
contractual requirement at Rio that she tip employees such as bartenders or
parking attendants, though the practice was implied.  Appellant stated that while she could
physically leave before the end of a shift, she could not leave and come back whenever
she wanted.

            >Pleadings and Class Certification Motion.

            Appellant filed her initial
complaint in May 2010 and the operative first amended complaint in September
2010.  She brought the complaint on her
own behalf and on behalf of dancers who worked at Rio providing nude, semi-nude
and/or bikini entertainment for the period of time beginning four years before
commencement of the action through entry of judgment.  She alleged that all dancers had been
misclassified as independent contractors instead of employees, and on that
basis alleged eight causes of action for failure to pay minimum wages or
overtime in violation of Labor Code sections 1194, subdivision (a) and
1197, subdivision (a);href="#_ftn2"
name="_ftnref2" title="">^[2] unlawful deduction of wages in violation of
sections 221 and 224 and Industrial Wage Commission (IWC) Orders; unlawful tip
collection in violation of section 351; failure to provide uniforms in
violation of an IWC Order; failure to provide rest and meal breaks in violation
of section 226.7; failure to timely pay wages in violation of section 203;
violation of Business and Professions Code section 17200; and failure to
provide itemized wage statements in violation of section 226, subdivision
(a)(2).  She sought damages in the form of wages,
penalties and restitution.

            Rio answered and filed a
cross-complaint for declaratory relief, unjust enrichment and restitution.  In turn, appellant answered the
cross-complaint.

            Appellant filed a motion for class
certification in July 2011 and later replaced it with the operative motion
filed in February 2012, seeking to certify a class of “[a]ll persons who
performed as nude and semi-nude dancers for Figueroa Group, Inc. dba Rio
Gentlemen’s Club . . . from May 7, 2006, to the date of entry of
judgment.”  She contended that at least
106 dancers worked at Rio during the relevant time period, and her claims
raised common issues of law and fact concerning their misclassification as
independent contractors and tip misappropriation.  In support of her motion she submitted copies
of lease applications and lease agreements signed by other dancers between 2007
and 2010; deposition excerpts from Majid Ahmadi, who produced Rio’s records;
and a June 2001 opinion letter from the California Department of Industrial Relations,
Division of Labor Standards Enforcement, interpreting section 350, subdivision
(e).  Attorneys for appellant also
submitted declarations attesting to their class action experience, including
wage and hour matters.

Appellant offered her own declaration about working at
Rio.  Having refreshed her recollection
by reviewing a work log from her work at a different club, appellant recalled
working at Rio and that during that time she worked approximately three days
per week for six to eight hours at a time. 
She also recalled that Rio set the price for private, off-stage dances
and that the dancer would be required to pay that fee to Rio.  She also recalled that she was required to
pay a stage fee, that she was not free to leave the premises and return, and
that she would be subject to a penalty for arriving late.

Appellant’s boyfriend, Jonathan Stradford, submitted a
declaration about his recollection of appellant’s working at Rio in 2006.  Finally, appellant submitted declarations
from five women who averred they worked at Rio for varying periods of time
between 2006 and 2011.  They generally
averred that Rio charged each dancer a fixed sum for every private dance and
charged a daily stage fee.  They also
recalled that Rio had minimum days per week and hours per day requirements, and
that they were not free to leave the premises and return.

            Rio opposed
the motion, arguing that class certification should be denied because common
questions of law and fact did not predominate and appellant was not a typical
or an adequate class representative.  It
submitted declarations from Rio employees, including managers, waitresses and
disc jockeys, none of whom knew appellant or ever saw her at Rio.  They stated that while dancers frequently do
tip the staff there is no requirement they do so, and that they observed
dancers leaving the premises and returning throughout the day or evening.  Three Rio managers averred that Rio’s policies
require dancers to complete an application before dancing; they do not require
dancers to perform for a minimum number of days per week or hours per day; they
permit dancers to take breaks and/or leave the premises; and they do not
require dancers to tip staff.  Rio also
submitted declarations from three customers, who averred they often negotiated
the price for dances.  Rio offered
excerpts from appellant’s January 2012 deposition.  It also offered over 40 prepared declarations
filled in by a number of Rio dancers indicating that they did not desire to be
a part of appellant’s lawsuit and did not want to be treated as an employee by
Rio.  They also indicated they were free
to negotiate their arrangement with Rio and were free to leave the premises and
return when dancing.

            Rio filed evidentiary objections to
portions of appellant’s declaration and the five dancers’ declarations, and
appellant filed evidentiary objections to the dancers’ and managers’
declarations offered by Rio.  In support
of her reply, appellant offered additional deposition excerpts from her
deposition and Ahmadi’s deposition, copies of text messages between her counsel
and a dancer at Rio who had submitted a declaration in support of Rio’s
opposition to class certification, and her own supplemental declaration about
her refreshed recollection.  Rio filed
additional evidentiary objections to the new evidence.

            Following a March 13, 2012 hearing,
the trial court denied the motion for class certification.  It ruled that while appellant met her burden
to show a sufficiently ascertainable and numerous class, the evidence failed to
show her claims were sufficiently typical or that she would be an adequate
class representative.  Evaluating each of
appellant’s individual contentions, the trial court further ruled that common
issues did not predominate and that a class action was not a superior method of
resolving the action.  The trial court
also sustained Rio’s first set of evidentiary objections, sustained two of
appellant’s evidentiary objections and overruled the balance of the objections.

            This appeal followed.

DISCUSSION

            Appellant
contends the trial court improperly denied class certification for multiple
reasons, asserting that the trial court committed legal and factual errors in
evaluating appellant’s showing.  We find
no merit to her contentions.

I.          Legal Principles Governing Class
Action Certification.

            “California courts have long viewed name="SR;6950">class actions as ‘“serv[ing] an important function in our
judicial system.  By establishing a
technique whereby the claims of many individuals can be resolved at the same
time, the class suit both eliminates the possibility of repetitious litigation
and provides small claimants with a method of obtaining redress . . . .”’  [Citations.] 
This state’s public name="SR;7039">policy supports the use of name="SR;7044">class actions to enforce California’s minimum name="SR;7050">wage and overtime laws for the
benefit of workers.  [Citations.]  However, ‘because group action . . . has
the potential to create injustice, trial courts are required to “‘carefully name="SR;7118">weigh respective benefits and
burdens and to allow maintenance of the class action
only where substantial benefits accrue both to litigants and the
courts.’”’  [Citations.]”  (Dailey
v. Sears, Roebuck & Co. (2013) 214 Cal.App.4th 974, 987 (>Dailey).)

            Code of Civil Procedure section
382 provides that a
class action may be brought “when the question is one of a common or general
interest, of many persons, or when the parties are numerous, and it is
impracticable to bring them all before the court.”  The trial court may certify a class when the
plaintiff meets his or her burden to establish the existence of an name=SearchTerm>ascertainable class and a
well-defined
community of name="SR;5264">interest.  (Lockheed
Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1103–1104; >Washington Mutual Bank v. Superior Court (2001)
24 Cal.4th 906, 913.)  “The community of
interest requirement embodies three factors: 
(1) predominant common questions of law or fact; (2) class representatives
with claims or defenses typical of the class; and (3) class representatives who
can adequately represent the class.”  (>Richmond v. Dart Industries, Inc. (1981)
29 Cal.3d 462, 470; accord, Sav-On Drug
Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326; >Dailey, supra, 214 Cal.App.4th at p.
988.)  Moreover, “[a] class action should
be certified only if it will provide substantial benefits both to the courts
and the litigants.  [Citations.]”  (Washington
Mutual Bank v. Superior Court, supra, at p. 914.)

            Class certification does not focus
on the merits of the dispute, but rather on the procedural issue of what types
of questions are likely to arise in the litigation—common or individual.  (Sav-On
Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at pp. 326–327; >Linder v. Thrifty Oil Co. (2000) 23
Cal.4th 429, 439–440.) 
Nonetheless, “[w]hen evidence or legal issues germane to the
certification question bear as well on aspects of the merits, a court may
properly evaluate name="citeas((Cite_as:_53_Cal.4th_1004,_*1024,">them.  [Citations.]” 
(Brinker Restaurant Corp. v.
Superior Court (2012) 53 Cal.4th 1004, 1023–1024.)  But the existence of some common issues of
law and fact does not dispose of the class certification issue.  (Lockheed Martin Corp. v. Superior Court,
supra, 29 Cal.4th at pp. 1108–1109; Washington
Mutual Bank v. Superior Court, supra, 24 Cal.4th at p. 913.)  To justify class certification, a class
plaintiff is required to establish the “questions of law or fact common to the
class predominate over the
questions affecting the individual members.” 
(Washington Mutual Bank v. Superior Court, supra, at p. 913;
accord, Lockheed Martin Corp. v. Superior Court, supra, at p.
1108.)  “‘[I]f a class action “will
splinter into individual trials,” common questions do not predominate and litigation
of the action in the class format is inappropriate.  [Citation.]’ 
[Citations.]”  (>Arenas v. El Torito Restaurants, Inc. (2010)
183 Cal.App.4th 723, 732.)  Thus, “‘[a]
court may properly deny certification where there are diverse factual issues to
be resolved even though there may also be many common questions of law.’”  (Soderstedt
v. CBIZ Southern California, LLC (2011) 197 Cal.App.4th 133, 154; accord, >Ali v. U.S.A. Cab Ltd. (2009) 176
Cal.App.4th 1333, 1353.)

            name="SDU_9">Our
review of an order granting or denying class certification “is narrowly
circumscribed.”  (Brinker Restaurant Corp. v. Superior Court, supra, 53 Cal.4th at p. 1022.)  The Brinker Court elaborated:  â€œâ€˜The
decision to certify a class rests squarely within the discretion of the trial
court, and we afford that decision great deference on appeal, reversing only
for a manifest abuse of discretion: 
“Because trial courts are ideally situated to evaluate the efficiencies
and practicalities of permitting group action, they are afforded great discretion
in granting or denying certification.” 
[Citation.]  A certification order
generally will not be disturbed unless (1) it is unsupported by substantial
evidence, (2) it rests on improper criteria, or (3) it rests on erroneous legal
assumptions.  [Citations.]’  [Citations.] 
Predominance is a factual question; accordingly, the trial court’s
finding that common issues predominate generally is reviewed for substantial
evidence.  [Citation.]  We must ‘[p]resum[e] in favor of the
certification order  . . . the existence of every fact the
trial court could reasonably deduce from the record . . . .’  [Citation.]” 
(Ibid.; see also >Dailey, supra, 214 Cal.App.4th at p. 991
[“if the parties’ evidence is conflicting on the issue of whether common or
individual questions predominate . . . the trial court is
permitted to credit one party’s evidence over the other’s in determining
whether the requirements for class certification have been met”].)

            “[W]hen denying class certification,
the trial court must state its reasons, and we must review those reasons for
correctness.  [Citation.]  We may only consider the reasons stated by
the trial court and must ignore any unexpressed reason that might support the
ruling.”  (Knapp v. AT&T Wireless Services, Inc. (2011) 195 Cal.App.4th
932, 939.)  The trial court need only
state one valid reason for denying the motion. 
(Linder v. Thrifty Oil Co., supra,
23 Cal.4th at p. 436.)

II.        Substantial Evidence Supported the Trial Court’s Denial of
Class Certification.

            Addressing the first prong of
appellant’s burden to show entitlement to class certification, the trial court
ruled appellant established the putative class was sufficiently ascertainable.  It denied certification on the ground
appellant failed to establish the second prong—a well-defined community of
interest—finding she failed to show that common issues predominated or that she
was a typical and adequate class representative.  It further ruled appellant failed to show
class treatment was superior. 
Substantial evidence supported the trial court’s order.

>A.                
>Common Questions of Law and Fact Did Not Predominate.

            To meet her burden to show that common questions of fact or
law predominated over individual issues, appellant was “required to do more
than simply show that common
issues exist.  Rather, [she] needed to
‘place substantial evidence in the record that common issues predominate.’  [Citation.]” 
(Morgan v. Wet Seal, Inc. (2012)
210 Cal.App.4th 1341, 1354–1355.) name="______#HN;F14"> â€œâ€˜The “ultimate question” the element of
predominance presents is whether “the issues which may be jointly tried, when
compared with those requiring separate adjudication, are so numerous or
substantial that the maintenance of a class action would be advantageous to the
judicial process and to the litigants.”  [Citations.]  The answer hinges on “whether the name="sp_7047_81">name="citeas((Cite_as:_210_Cal.App.4th_1341,_*">theory of recovery advanced
by the proponents of certification is, as an analytical matter, likely to prove
amenable to class treatment.” 
[Citation.]  A court must examine
the allegations of the complaint and supporting declarations [citation] and
consider whether the legal and factual issues they present are such that their
resolution in a single class proceeding would be both desirable and
feasible.’  [Citation.]”  (Id.
at p. 1355, quoting Brinker Restaurant
Corp. v. Superior Court, supra, 53 Cal.4th at pp. 1021–1022.)

                        1.         Misclassification.

            The
trial court described appellant’s theory of recovery:  “The basis of the claims alleged by Plaintiff
on behalf of the class is that Defendant misclassified the dancers as independent
contractors instead of employees.  That
is, Plaintiff alleges that the circumstances of the dancers’ work for Defendant
make them employees instead of contractors. 
As a result of the misclassification, Plaintiff alleges Defendant did
not pay the dancers minimum wage or overtime wages, made unlawful deductions
from their wages, unlawfully misappropriated their tip income, failed to
provide them with meal and rest breaks, failed to provide them with itemized
wage statement[s] and failed to provide them with uniforms.”

       The primary consideration in
determining whether an individual is an employee or an independent contractor
is the employer’s right to control the manner and means by which the work is
performed.  (S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989)
48 Cal.3d 341, 350; Varisco v. Gateway
Science & Engineering, Inc. (2008) 166 Cal.App.4th 1099, 1103.)  “Under this rule, the right to exercise
complete or authoritative control must be shown, rather than mere suggestion as
to detail.  A worker is an independent
contractor when he or she follows the employer’s desires only in the result of
the work, and not the means by which it is achieved.”  (Ali v.
U.S.A. Cab Ltd., supra, 176 Cal.App.4th at p. 1347.)  As secondary factors, the trial court may
also consider “(a) whether the one performing services is engaged in a distinct
occupation or business; (b) the kind of occupation, with reference to whether,
in the locality, the work is usually done under the direction of the principal
or by a specialist without supervision; (c) the skill required in the
particular occupation; (d) whether the principal or the worker supplies the
instrumentalities, tools, and the place of work for the person doing the work;
(e) the length of time for which the services are to be performed; (f) the
method of payment, whether by the time or by the job; (g) whether or not the
work is a part of the regular business of the principal; and (h) whether or not
the parties believe they are creating the relationship of
employer–employee.  [Citations.]”  (Borello,
supra, at p. 351.)  These
factors are not applied mechanically; they are intertwined and the weight to be
given each factor varies according to the evidence presented in each case.  (Ibid.)

       Addressing the
issue of control, the trial court acknowledged that some of the secondary
factors weighed in appellant’s favor. 
Evidence that the dancers were not engaged in a distinct occupation,
that no particular skill was required and that Rio provided some of the
instrumentalities and place of work weighed in favor of a showing of control.  Nonetheless, it concluded that the weight of
the evidence showed Rio did not control the manner and means by which the dancers’ work was
performed, and determined appellant failed to show “that common questions can
be used to determine the degree of control exercised by Defendant over the
dancers.”  It relied on the 43 dancer declarations
submitted by Rio, in which dancers generally averred that they retained
flexibility to work at other clubs in addition to Rio; they negotiated the
terms of the written lease agreements, including eliminating the requirement of
providing advance notice when they will work, reducing the daily stage fee
specified in the lease agreement and negotiating what they will charge
customers for dances; they were free to go to and from Rio when dancing; and
they were not required to tip Rio staff.  The trial court also
cited the five declarations submitted by dancers in support of appellant’s
motion, noting that the declarations lacked any detail concerning the extent to
which the lease agreements governed the terms of the dancers’ relationship with
Rio and explaining that, in any event, the declarations conflicted with the
dancer declarations submitted by Rio.  Appellant’s
evidence also conflicted with Rio’s manager’s declaration, which averred that
Rio did not have control over what customers paid the dancers.  (See Arenas
v. El Torito Restaurants, Inc., supra, 183 Cal.App.4th at p. 734 [“having credited defendants’
evidence over plaintiffs’, the trial court could reasonably conclude there was
insufficient evidence of widespread misclassification, hence plaintiffs’ theory
of recovery was not susceptible to common proof”].)

       Appellant argues
that the dancer declarations submitted by Rio failed to show that
individualized determinations predominated, because the extent to which Rio
maintained control over the dancers’ work—or a lack thereof—involved a common
question of law.  She misperceives the
nature of the dancers’ declarations.  The
dancers did not aver that Rio maintained the same limited level of control over
all of them.  Instead, they declared they
had the ability to negotiate various provisions of the lease agreements.  The evidence therefore suggested that Rio had
varying relationships with and degrees of control over each dancer.  These circumstances are akin to those in >Ali v. U.S.A. Cab Ltd., supra, 176
Cal.App.4th at page 1350, where the appellate court affirmed a ruling that a proposed class of
taxi drivers was not suitable for class treatment, despite the fact that the
taxi company entered into standard leases with drivers.  It stated: 
“Although the leases and training manuals are uniform, the court
reasonably found the testimony of putative class members would be required on
the issues of employment and fact of damage. 
Plaintiffs argued at the hearing that proof of employment as to any
purported class member would constitute proof as to all purported class
members, but the court reasonably rejected the argument that a single set of
facts predominates.  As the court
explained after it issued its tentative ruling, ‘the trial [of a class action,]
I would expect[,] would be a parade of drivers’ presenting individual
issues.”  (Ibid.; accord, Dailey, supra, 214 Cal.App.4th at pp. 996–997 [“Based on Sears’s
evidence, the trial court reasonably could infer not only that the proposed
class members have flexibility in applying the allegedly ‘uniform’ policies and
practices in their stores, but also that the day-to-day tasks of Managers and
Assistant Managers, rather than being name="SDU_997">uniformly
dictated by these few policies and practices, vary greatly depending on a
number of factors”]; Dunbar v.
Albertson’s, Inc. (2006) 141 Cal.App.4th 1422, 1427 [affirming denial of
class certification order that stated “‘although Defendant has made a single
policy decision to classify hundreds of GMs as exempt, that single policy
decision may be improper as to some putative class members but proper as to
others’”].)

       Alternatively,
appellant argues that the trial court’s weighing of the evidence was affected
by erroneous evidentiary rulings.  She
contends the trial court abused its discretion by sustaining objections to
portions of the dancer declarations she submitted and by disregarding a text
message exchange between one of the Rio declarants and her counsel.  The trial court has broad discretion in the
admission and exclusion of evidence, and we will not disturb its evidentiary rulings
unless there has been an abuse of that discretion and the appellant has shown a
reasonable probability that a more favorable result would have been reached
absent the error.  (Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th
1422, 1431–1432; Smith v. Brown-Forman
Distillers Corp. (1987) 196 Cal.App.3d 503, 519.)

       Rio
objected to the dancer declarations submitted by appellant on the grounds of
lack of personal knowledge (Evid. Code, § 702) and hearsay (Evid. Code, § 1200)
to the extent the declarants described the experiences of dancers other than
themselves.href="#_ftn3" name="_ftnref3"
title="">^[3]  The trial court sustained the
objections.  We find no abuse of
discretion, as the declarations purported to describe generally the
relationship between Rio and other dancers without any indication that the
declarants’ averments were based on their personal observations.  (See Myricks
v. Lynwood Unified School Dist. (1999) 74 Cal.App.4th 231, 240, fn. 12
[lack of personal knowledge and hearsay objections properly sustained to
declaration by former school principal about accident that occurred after his
employment had terminated].)  In any
event, appellant has failed to demonstrate how she was prejudiced by the
rulings, as the trial court expressly weighed the declarations against those submitted
by Rio, finding that the extent of Rio’s control was disputed.  This dispute would have existed regardless of
whether appellant’s dancer declarations were limited to their experience or
described the experiences of other dancers. 
(See Black v. Black (1949) 91
Cal.App.2d 328, 336 [erroneous exclusion of cumulative evidence not
prejudicial].)

       The
trial court overruled Rio’s objection to evidence of a text message exchange
between appellant’s counsel and a dancer, Giselle Ojeda, who texted that she
and other dancers were forced to sign declarations in support of Rio.  Appellant’s contention that the trial court
improperly disregarded this text message exchange is nothing more than a
request that we reweigh the evidence. 
The trial court expressly observed that Ojeda was not credible, as she
submitted a declaration in support of Rio and then offered evidence that
contradicted her declaration.  The “appellate court does not reweighname="SR;4077"> the evidence or evaluate the credibility
of witnesses, but rather defers to the trier of fact.”  (Cahill
v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 958;
accord, Foust v. San Jose Construction
Co., Inc. (2011) 198 Cal.App.4th 181, 188 [appellate court may neither
reevaluate credibility nor reweigh the evidence]; Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 765
[same].)  Accordingly, we find no merit
to appellant’s evidentiary challenges in connection with the trial court’s
finding that she failed to establish a predominance of common issues.

       Nor do we find any basis to disturb the
trial court’s conclusion in light of the series of cases appellant discovered
after she submitted her opening brief. 
The California cases cited in her letter brief involve distinctly
different facts than the evidence credited by the trial court.  (See Bradley
v. Networkers Internat., LLC (2012) 211 Cal.App.4th 1129, 1146–1147
[misclassification claim amenable to class treatment where, among other things,
evidence showed each class member was required to work full time and told how
to prioritize each day’s jobs, was not permitted to deviate from time and place
job rules, received hourly pay and submitted timesheets, and was required to
use the defendant’s tools on the job]; Ghazayan
v. Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524, 1528–1529, 1536–1537
[drivers’ claim that they should be paid for waiting time between jobs while on
call amenable to class treatment because it involved application of a uniform
policy, even though the duration of waiting times could differ among drivers].)  Appellant’s federal cases merely involve
class certification rulings based on the particular evidence presented before
the trial court in the first instance. 
(See Guifu Li v. A Perfect
Franchise, Inc. (N.D. Cal. 2011) 2011 WL 4635198 at *7–12 [common issues
predominated on question of whether massage therapists were independent
contractors or employees where employer’s policies and evidence bearing on a
number of secondary factors considered in the independent contractor analysis
established employer’s level of control]; Bibo
v. Federal Exp., Inc. (N.D. Cal. 2009) 2009 WL 1068880 at *9–14 [class
treatment appropriate for certain subclasses of Federal Express drivers
alleging specific Labor Code violations]; Alba
v. Papa John’s USA, Inc. (C.D. Cal. 2007) 2007 WL 953849 at *6–8 [district
court expressly weighed evidence to determine the defendant’s policies were
uniformly applied and concluded managers and other subclasses alleging Labor
Code violations therefore raised common questions]; Wren v. RGIS Inventory Specialists (N.D. Cal. 2009) 256 F.R.D. 180,
205 [noting “the parties have waged an all-out evidentiary war in connection
with” the class certification motion, the court concluded “there is sufficient
evidence to conclude that there are common questions relating to donning and
waiting time that arise from a centralized policy or practice on the part of
RGIS”]; Otsuka v. Polo Ralph Lauren Corp.
(N.D. Cal. 2008) 251 F.R.D. 439, 442–443, 445 [on the basis of competing
evidence, former sales associate and cashier plaintiffs met their burden to
satisfy commonality requirement concerning alleged Labor Code violations].)

                   2.         Misappropriation of tip
income.

       In its order denying certification, the
trial court ruled it need not evaluate appellant’s Labor Code claims since they
were premised on the argument that the dancers were misclassified as
independent contractors.  Nonetheless,
the trial court alternatively explained that even if appellant had met her
burden to show common questions concerning misclassification, certain alleged
Labor Code violations would be amenable to class treatment while others would
not.  In her opening brief, appellant
contends both her third cause of action for illegal tip collection in violation
of section 351, and her seventh cause of action for violation of Business
and Professions Code section 17200 to the extent it was premised on that claim,
were sufficient for class certification, as those claims were viable whether
she was an independent contractor or employee.href="#_ftn4" name="_ftnref4" title="">^[4]  (See Lab. Code, § 350,
subds. (b) & (c).)

Expressly
accepting appellant’s argument that her misappropriation of tip income claim
was not dependent on her status as an independent contractor or employee, the
trial court ruled:  “Plaintiff has not
submitted evidence to establish a class-wide policy concerning whether
Defendant requires dancers to pay it a portion of the dancers’ tips.  In fact, Defendant has submitted several
declarations from its managers stating that Defendant does not require
dancers to pay it or its employees any portion of their tips.  [Citations.] 
Accordingly, Plaintiff has not met her burden that there is a class-wide
policy concerning conversion or misappropriation of the dancers’ tips by
Defendant.”

Appellant
fails to challenge the evidentiary basis for the trial court’s conclusion.  The evidence established the lease agreements
did not obligate the dancers to tip Rio staff, and multiple managers averred
that tipping was voluntary.  Without
comment on this evidence, appellant attacks only the alternative basis for the
trial court’s ruling, which was that appellant could not maintain a private
cause of action for violation of section 351 as a matter of law.  (See Lu
v. Hawaiian Gardens Casino, Inc. (2010) 50 Cal.4th 592, 595 [“we conclude
that [Labor Code] section 351 does not contain a private right to sue”].)  Appellant argues that by finding appellant
could not maintain a cause of action under the statute, the trial court
improperly determined the merits of her claim. 
Though we acknowledge 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 name="citeas((Cite_as:_218_Cal.App.4th_1380,_*">them,’” (>Hendleman v. Los Altos Apartments, L.P. (2013)
218 Cal.App.4th 1380, 1391), we need not rely on that principle.  The trial court based its ruling on the lack
of evidence showing a class-wide policy requiring dancers to tip Rio staff—not
on the inability of appellant to maintain a private cause of action.  In view of the evidence showing that any tips
paid by dancers were voluntary, substantial evidence supported the trial
court’s conclusion that common issues would not predominate any claims based on
tip misappropriation.

       >B.        Appellant Was Neither a Typical nor an
Adequate Class Representative.

       In
connection with appellant’s burden to satisfy the community of interest
requirement, “‘[t]he crucial inquiry
centers upon whether the plaintiffs are truly representative of the absent,
unnamed class members.’  [Citation.]”  (Caro
v. Procter & Gamble Co. (1993) 18 Cal.App.4th 644, 663.)  â€œâ€˜â€œThe cases uniformly hold that a plaintiff
seeking to maintain a class action must be a member of the class he claims to
represent.  [Citation.]”  [Citation.]’  [Citation.]  The class representative must be situated
similarly to class members.  [Citation.]  â€˜It is the fact that the class plaintiff’s
claims are typical and his representation of the class adequate which gives
legitimacy to permitting him to bind class members who have notice of the
action.  [Citations.]’  [Citation.]” 
(Id. at pp. 663–664.)

       Finding appellant failed to show her
claims were typical of the class, the trial court explained:  “Although [appellant] submitted some evidence
(in the form of her declaration and a declaration from her boyfriend) that she
worked as an exotic dancer at Rio, at her deposition she was unable to recall
anything specific about working as a dancer at Rio.  For example, Plaintiff Carter could not
recall where Rio was located, whether she signed an agreement to work there,
with whom she spoke to about working there (or what they looked like), what
they spoke about, whether she danced the first day she worked there, the names
of the other dancers, how much the dances cost, the manager’s name, or any
other detail about her work experience at Rio.” 
The trial court also observed that appellant was unable to produce any
documents showing she worked at Rio, claiming they were stolen from her
car.  It observed that appellant’s
deposition testimony was consistent with the evidence from Rio, which found no
records showing appellant worked there and submitted declarations from multiple
dancers and employees who did not recall ever working with her.

       Against appellant’s deposition testimony
and Rio’s evidence, the trial court evaluated appellant’s declaration that was
designed to rehabilitate her testimony. 
It recognized that appellant averred she was able to refresh her
recollection by reviewing record and photographs from another club, and
described appellant’s recollection of the time frame she worked at Rio and her
last day of work.  The trial court also
acknowledged the declaration from appellant’s boyfriend, Stradford, which
stated that appellant worked at Rio.

       The trial court weighed this conflicting
evidence and ruled:  “Plaintiff’s
declaration is not credible.  [Citation.]  It is difficult to believe that Plaintiff
Carter did not attempt to refresh her recollection prior to sitting for her
deposition in this case and only afterwards was able to recall with specificity
details like the amount Rio charges for dance fees.”  The trial court further found that
Stradford’s declaration contained no statements demonstrating his personal
knowledge that appellant worked at Rio; he declared only that they discussed
her working at Rio and he was opposed to the idea.  The trial court found “that Plaintiff has not
shown that she worked as a dancer at Rio during the relevant time period.  As such, she has not demonstrated that she is
a member of the proposed class.”  Because
appellant could not demonstrate she was a member of the proposed class, the
trial court further found “there is no indication that she has interests that
are typical of the other class members or will represent the interests of the
class.”  It further observed that
appellant had offered no evidence to show she understood her obligations as a
class representative.

Appellant raises several challenges to the
trial court’s evidentiary rulings sustaining Rio’s objections to her
declaration.  But we need not address her
arguments because, regardless of the evidentiary rulings, the trial court
expressly considered appellant’s declaration and found it not credible.  It is well established that “‘questions as to
the weight and sufficiency of the evidence, the construction to be put upon it,
the inferences to be drawn therefrom, the credibility
of witnesses . . . and the determination of [any] conflicts
and inconsistency in their testimony are matters for the trial court to
resolve.’  [Citation.]”  (Sav-On
Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 334 [resolving
conflicts in declarations submitted in connection with a class certification
motion]; see also Dailey, supra, 214
Cal.App.4th at pp. 991–992 [trial court acts within its discretion in crediting
one party’s evidence over another’s in ruling on a class certification
motion].)  As the trial court was within
its discretion to credit appellant’s deposition testimony over her declaration,
appellant cannot demonstrate she suffered any prejudice from the evidentiary
rulings.

       Nor
do we find any support for appellant’s argument that the trial court’s
evidentiary ruling improperly relied on principles governing summary judgment
motions.  In connection with its
credibility determination, the trial court cited Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078,
1087.  There, the court affirmed a grant
of summary judgment and reiterated the general principle that “[w]here a
declaration submitted in opposition to a motion for summary judgment clearly
contradicts the declarant’s earlier deposition testimony or discovery
responses, the trial court may fairly disregard the declaration and ‘“conclude
there is no substantial evidence of the existence of a triable issue of
fact.”’  [Citation.]”  (Ibid.)  Regardless of the citation, the trial court
was permitted to weigh the conflicting evidence in connection with its
determination whether appellant met her burden to show she was a typical and
adequate representative.  (See >Sav-On Drug Stores, Inc. v. Superior Court,
supra, 34 Cal.4th at p. 328 [“‘[w]here a certification order turns on
inferences to be drawn from the facts, “‘the reviewing court has no authority
to substitute its decision for that of the trial court’”’”].)  Substantial evidence supported the trial
court’s determination that appellant failed to meet her burden.href="#_ftn5" name="_ftnref5" title="">^[5]

       >C.        The Trial Court Acted Within Its
Discretion in Declining to Continue the Hearing to Permit Appellant to Find a
New Representative or to Depose Rio’s Dancers.

            Finally, appellant contends that, at
a minimum, she should have been given additional time to conduct discovery to
find a suitable class representative and/or to depose Rio’s dancers “to
establish coercion and the predominance of common issues.”  The trial court has wide
discretion in determining whether to grant or deny a continuance, including a
continuance of a class certification hearing. 
(Dailey, supra, 214
Cal.App.4th at p. 1004; Miller v. Bank of
America, N.A. (2013) 213 Cal.App.4th 1, 11–12.)  “The trial court’s exercise of that discretion will be upheld
if it is based on a reasoned judgment and complies with legal principles and
policies appropriate to the case before the court.  [Citation.]name=f22002251199>  A reviewing court
may not disturb the exercise of discretion by a trial court in the absence of a
clear abuse thereof appearing in the record. 
[Citation.]name="citeas((Cite_as:_97_Cal.App.4th_977,_*98">  The burden rests on the complaining party to
demonstrate from the record that such an abuse has occurred.  [Citation.]” 
(Forthmann v. Boyer (2002) 97
Cal.App.4th 977, 984–985.)

            Appellant has failed to demonstrate
any abuse of discretion.  This action has
been pending since May 2010.  Throughout 2011, the parties engaged in
discovery.  Appellant initially filed her
motion for class certification in July 2011, and in December 2011 the parties
proposed to continue the hearing on the motion to June 2012.  The trial court limited the continuance to
March 2012, stating in its order:  “No
further extensions shall be granted.  The
parties’ failure to complete discovery shall not constitute good cause to continue
this hearing.”  Appellant then filed a
second motion for class certification in February 2012, with a March 2012
hearing date.  The trial court denied
Rio’s ex parte application to depose the dancers who submitted declarations on
appellant’s behalf.  As part of its reply
to the motion, appellant requested a continuance to conduct further discovery.

            Though the trial court did not address appellant’s
continuance request in its written order, at the hearing on the class
certification motion appellant’s counsel argued that his text message exchange
with one of the dancers “support[ed] at least some inquiry into the validity
of” the other declarations, characterizing them as stating only broad
conclusions without factual substantiation. 
The trial court disagreed and reminded appellant that she was the moving
party and her arguments about the possibility of an issue were more suited to
opposing a summary judgment motion.  The
trial court stated to appellant:  “[T]his
is your motion.  You have the burden of
proof to show all of the elements for class certification . . . .”

            We are guided by Dailey,
supra, 214 Cal.App.4th at pages 1004 to 1005, where the court affirmed the
denial of a request to continue a class certification hearing to enable the
moving party to conduct additional discovery. 
There, the plaintiff had approximately one and one-half years while the
action was pending to conduct discovery, and he failed to show both how
additional discovery was essential to his motion and why he had been unable to conduct
sufficient discovery during the pendency of the action.  (Ibid.)  Emphasizing that “[t]he law requires not that the
parties be able to conduct a comprehensive investigation, but rather, only that
they have ‘a chance to conduct reasonable investigation’ in advance of
the class certification determination,” the court concluded the moving party
had sufficient time to conduct a reasonable investigation, and the trial court
was therefore within its discretion to deny a continuance.  (Id. at
p. 1005.)

            Here, the action had been pending
for almost two years at the time appellant’s class certification motion was
heard.  Appellant has failed to explain
why that time period was insufficient for her to obtain information from others
with whom she assertedly worked or for her to determine that her lack of
recollection about her experience at Rio could render her an unsuitable class
representative.  The trial court was well
within its discretion to hold the class certification hearing on March 13,
2012, without any further continuance.

DISPOSITION

            The order denying class
certification is affirmed.  Rio is
entitled to its costs on appeal.

            NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.

 

_____________________, J. href="#_ftn6" name="_ftnref6" title="">^*

    FERNS

We
concur:

 

 

____________________________,
Acting P. J.

            ASHMANN-GERST

 

____________________________,
J.

            CHAVEZ