face="Times New Roman">Filed
v. Total Renal Care CA2/7
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face="Times New Roman">
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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
face="Times New Roman">
face="Times New Roman">IN THE COURT OF APPEAL OF THE STATE OF
face="Times New Roman">
face="Times New Roman">SECOND APPELLATE DISTRICT
face="Times New Roman">
face="Times New Roman">DIVISION SEVEN
face="Times New Roman">
face="Times New Roman">
ROSEMARY
ANDERSON et al.,
Plaintiffs and Appellants,
v.
TOTAL
RENAL CARE, INC.,
Defendant and Respondent.
B236207
(
Super.
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman"> APPEAL from an order of the
County, Daniel J. Buckley, Judge. Affirmed in part, and reversed and remanded
in part.
face="Times New Roman"> Kingsley & Kingsley, Eric B. Kingsley and Kelsey M. Peterson-More
for Plaintiffs and Appellants.
face="Times New Roman"> Epstein, Becker & Green, James A. Goodman, Marisa S. Ratinoff,
Tae Kim and Amy B. Messigian for Defendant and Respondent.
face="Times New Roman">
face="Times New Roman">_____________________________
Appellants, Rosemary Anderson and Richard Brown, appeal from
the trial court’s order denying their motion
to certify a number of classes of employees allegedly injured by respondent
Total Renal Care’s employment policies and practices. Appellants alleged that respondent violated
and hour laws and failed to issue paychecks in compliance with Labor Code
section 212. Below, appellants
specifically sought to certify three classes: (1) employees who were not given
a “meal break,†(2) employees whose paychecks failed to comply with Labor Code
section 212, and (3) employees who were required to take their meal break early
in the first hour of their shift. As we
shall explain, the court did not err in failing to certify classes related to
the meal period claims based on the court’s finding that individual matters
predominated the determination of these claims.
Nor do we find that remand is required in light of Brinker
Restaurant Corporation v. Superior Court (2012) 53 Cal.4th 1004 (
reverse the court’s denial of the class certification motion concerning the
Labor Code section 212 paycheck claim.
It appears that the court failed to specifically rule on that claim, and
it is sufficiently distinct from the other claims that we cannot infer a ruling
on it based on the court’s orders.
Consequently we remand the matter for reconsideration.
Appellants
Rosemary Anderson and Richard Brown were employed by respondent Total Renal
Care, Inc., and worked as acute dialysis nurses (AD nurses). Total Renal Care is one of the largest
providers of acute dialysis treatment in
provides dialysis treatment in 15 regional programs across the state. The majority of AD nurses are mobile acute
nurses who travel to various hospitals to provide dialysis treatment to
patients at those hospitals. AD nurses
work alone when performing dialysis treatment and generally perform two to
three dialysis treatments per shift.
A typical
treatment performed by an AD nurse is a hemodialysis treatment (HD
treatment). The entire treatment,
including set up and take down, takes approximately five hours to complete,
while the actual treatment itself takes approximately 3 hours. The company’s employee handbook indicates
that employees are entitled to take an uninterrupted 30 minute break. Although there is no written policy governing
at what point during a session a nurse should take his or her 30 minute lunch
break, there are typically four opportunities for a nurse to take his or her
break during a dialysis session: (1) after clocking in and retrieving the
equipment, (2) after taking the equipment to the patient’s room, (3) after
completing the set up process, or (4) after completing the first treatment
before breakdown. The declarations of
nurses in the record indicate that AD nurses took their meal period at
different times during the day, typically in their first or fifth hour of work.
Employees
of respondent are issued paychecks drawn on an out-of-state bank. Respondent issued two different paper
paychecks during the class period, neither of which contained a bank with a
address.
Appellants’
operative complaint alleged that respondent violated
and hour and unfair competition statutes including: (1) failure to provide meal
breaks, (2) failure to pay wages, (3) failure to provide paychecks in
compliance with Labor Code section 212, (4) penalties pursuant to Labor Code
section 203 and section 2699, and (5) unfair competition. The complaint alleged that the named
plaintiffs intended to represent two classes: (1) the Missed Meal Period Class
(Meal Period Class), (2) the Labor Code section 212 Paycheck Class (Section 212
Class).
face="Times New Roman">Appellants defined the
“Meal Period Class†as “[a]ll persons who were employed or have been employed,
and who have worked one or more shifts that exceeded five hours as an acute
nurse for [Respondent] in the State of
between face="Times New Roman">April 1, 2004
the date of trial.…†Appellants
described the “Meal Period Class†as including AD nurses who were required to
work more than five hours without receiving a meal period. The thrust of the appellants’ argument was
that respondent had a policy of understaffing, which precluded AD nurses from effectively
taking their meal periods.
had wages automatically deducted from their paychecks for meal periods and AD
nurses were therefore not compensated for these lost meal periods (“Auto
deduction/unpaid wages claimâ€).
face="Times New Roman">The “Section 212 Classâ€
was defined as “[a]ll persons who are employed or have been employed by
[Respondent], in the State of California, between April 1, 2004 and the date of
trial who have received payments of wages from the [Respondent] in the form of
checks issued by an out-of-state bank with no in-state address for presentation
on one or more occasion.†Appellants
described this class as all employees who were paid wages in the form of checks
by an out-of-state bank and who had to pay a fee to cash their check or had a
hold imposed on the check.
face="Times New Roman">Respondent opposed
appellants’ “Meal Period Class†by presenting evidence that there was no
understaffing policy and that individual issues predominated. Respondent presented declarations from AD
nurses who stated that they were able to take their meal periods and were
advised to do so in compliance with the Labor Code. Additionally, respondent provided evidence
that AD nurses had the discretion to take their meal breaks throughout their
shifts and any failure to take a meal break was the result of the individual
nurses’ scheduling and not a company policy.
Further, respondent presented evidence that there was no company-wide
auto-deduction of wages and that this practice was limited to employees at one
hospital.
face="Times New Roman">Respondent opposed appellants’
“Section 212 Class†on the grounds that both Rosemary Anderson and Richard
Brown could not represent this class since both were paid via direct deposit
and therefore were never issued a paycheck in violation of Labor Code 212. In addition, respondent argued that
individual issues predominate, since damages would need to be determined
according to every class member’s bank or check cashing establishment.
face="Times New Roman">In appellants’ reply
brief, they asked the court to certify a third class, the “Early Lunching
Class.†Appellants defined this class as
those employees who had taken a meal period before the first patient dialysis
treatment of a shift. In addition, in a
footnote in the Reply they also asserted that the court should recognize a
subclass of the meal period class based on a claim that from between April 2004
through October 2006, respondent did not keep records of when AD nurses took
their meal breaks (the “No Records†class) which raised the presumption that no
meal breaks were taken during that time period.
face="Times New Roman">In a sur-reply brief and
at oral argument respondent argued that the “Early Lunching Class†should not
be certified because it was not unlawful to provide employees with the
opportunity to take a meal break within the first few hours of an employee’s
arrival at work, and that there was no common policy requiring the nurses to
take their lunches early. With respect
to the suggested “No Records Class,†respondent asserted at oral argument that,
although there were no “electronic records†recording meal breaks during the
2004-2006 time period, paper records did exist showing when the nurses took
meal breaks, and that both party’s experts had analyzed paper records.
face="Times New Roman">The trial court took the
matter under submission after oral argument and subsequently issued an order
denying appellants’ motion in its entirety.
Preliminarily, the court determined that there was not a statutory
violation upon which to state a cause of action based on the “timing†of a meal
break because the law did not require that meal periods be scheduled during the
middle of a shift nor before the fifth hour of work. Secondly, the court denied the motion because
“individual issues predominated.†The court
found the evidence demonstrated the inability to take a meal period was due to
the duration of the patient’s treatment or the employee’s choice regarding
scheduling and not the respondent’s uniform policy.
address the proposed Section 212 Class.
face="Times New Roman">Appellants timely
appealed.
Before
this court, appellants contend that the lower court improperly denied their
class certification motion.
Specifically, appellants complain that the lower court erred in denying its “Meal Period Classâ€â€”specifically
by failing to rule on the their “Auto deduction/unpaid wages claim,†and by
failing to rule on the “No Records Subclass†presented in their Reply
Brief. In addition, appellants assert
that remand and reconsideration is appropriate in light of Brinker,
supra, 53 Cal.4th 1004 in which, according to appellants, the
Supreme Court recognized that a legal challenge to employer’s written meal
policies could be suitable for class treatment.
Appellants claim this pronouncement in Brinker amounted
to an “intervening change of law,†which they
could not have anticipated and would have been rejected by the lower court
prior to Brinker had they sought to certify a
class based on respondent’s written meal policies. Finally, appellants also complain that the
lower court erred in failing to rule on their request to certify the “Section
212 Class.†We address these arguments
in turn.
General Legal Principles
Governing Class Certification
face="Times New Roman">“Originally creatures of
equity, class actions have been statutorily embraced by the Legislature
whenever ‘the question [in a case] 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. . . .’â€
(Brinker, supra, 53 Cal.4th at p. 1021;
§ 382.) The California Supreme
Court has articulated clear requirements for the certification of a class: “The
party advocating class treatment must demonstrate the existence of an
ascertainable and sufficiently numerous class, a well-defined community of
interest, and substantial benefits from certification that render proceeding as
a class superior to the alternatives.†(
382.) “In turn, 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.’†(Fireside
Bank v. Superior Court (2007) 40 Cal.4th 1069, 1089; quoting Richmond v. Dart Industries, Inc. (1981)
29 Cal.3d 462, 470.)
face="Times New Roman">A class action may be
maintained even if each member must individually show eligibility for recovery
or the amount of damages. But a class
action will not be permitted if each member is required to “litigate
substantial and numerous factually unique questions before a recovery may be
allowed. [Citations.] . . . ‘[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.]â€
(Arenas v. El Torito Restaurants, Inc.
(2010) 183 Cal.App.4th 723, 732, [order denying certification on
misclassification allegations affirmed where trial court found tasks performed
by restaurant managers, and time devoted to each task, varied widely from
restaurant to restaurant].)
face="Times New Roman">Here, the element of
class suitability in dispute is whether individual questions or questions of
common or general interest predominate.
(See, Brinker, supra,
53 Cal.4th at p. 1021.) 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.†(
232, 238, accord, Sav–On Drug Stores, Inc.
v. Superior Court (2004) 34 Cal.4th 319, 326 (Sav-On).) This question can be answered by determining
whether the theory of recovery advanced by the proponents of certification is
“likely to prove amenable to class treatment†and whether the legal and factual
issues the proponents present should be resolved in a single class
proceeding. (Brinker,
supra, 53 Cal.4th at pp. 1021-1022; Sav-On,
supra, 34 Cal.4th at p. 327.)
“As a general rule if the defendant’s liability can be determined by
facts common to all members of the class, a class will be certified even if the
members must individually prove their damages.â€
(Hicks v. Kaufman & Broad Home
Corp. (2001) 89 Cal.App.4th 908, 916; accord, Brinker, supra, 53 Cal.4th at p.
1022.)
face="Times New Roman">
face="Times New Roman">
Finally, in Brinker
the court recognized that although in general class certification
issues are procedural that do not ask whether an action is legally or factually
meritorious, issues affecting the merits of a case may be enmeshed with class
action requirements. (Brinker, supra,
53 Cal.4th at pp. 1022-1024; see also Wal–Mart
Stores, Inc. v. Dukes (2011) 564 U.S. ___, ___, 131 S.Ct. 2541,
2551, 180 L.Ed.2d 374 [analysis of a class certification’s propriety
“[f]requently . . . will entail some overlap with the merits of the plaintiff’s
underlying claim. That cannot be helped.â€]; Coopers
& Lybrand v. Livesay (1978) 437 U.S. 463, 469, fn. 12
[“‘Evaluation of many of the questions entering into determination of class
action questions is intimately involved with the merits of the
claims.’â€].) “When 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 p.
1024.) Such a “peek†into the merits is
particularly appropriate when the court is attempting to determine whether common
or individual issues predominate. (Ibid. [“In particular, whether common or
individual questions predominate will often depend upon resolution of issues
closely tied to the meritsâ€].)
Standard of Review
face="Times New Roman">Our review of the denial
of a class certification order is narrowly circumscribed. (Brinker,
supra, 53 Cal.4th at p. 1022.) “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.]†(Fireside Bank v. Superior Court, supra, 40
Cal.4th at p. 1089; accord, Brinker, supra, 53
Cal.4th at p. 1022; see also, Hamwi v. Citinational–Buckeye Inv. Co. (1977) 72 Cal.App.3d
462, 472 [“So long as [the trial] court applies proper criteria and its action
is founded on a rational basis, its ruling must be upheld.â€].)
face="Times New Roman">California courts
consider “pattern and practice evidence, statistical evidence, sampling
evidence, expert testimony, and other indicators of a defendant's centralized
practices in order to evaluate whether common behavior towards similarly
situated plaintiffs makes class certification appropriate.†(Sav–On,
probability that each class member will come forward ultimately to prove his or
her separate claim to a portion of the total recovery and whether the class
approach would actually serve to deter and redress alleged wrongdoing.†(Jaimez v. DAIOHS USA, Inc.
(2010) 181 Cal.App.4th 1286, 1298, quoting Linder
v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.)
face="Times New Roman">The trial court’s finding that common
issues predominate generally is reviewed for substantial evidence. (Brinker, supra, 53
Cal.4th at p. 1022; Sav–On, supra,
34 Cal.4th at pp. 328–329.) ‘“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.’ [Citations omitted;
emphasis added.]†(Brinker,
supra, 53 Cal.4th at p. 1022.)
Appellate courts presume “in favor of the certification order . . . the
existence of every fact the trial court could reasonably deduce from the
record. . . .†(Sav–On, supra, 34 Cal.4th at p. 329;
Appellants’ Claims
A. Meal Period Class Issues
face="Times New Roman">Appellants contend that
the lower court erred in denying certification for its proposed “Meal Period
Class†because the trial court’s determination that “individual questions
predominated†was not supported by substantial evidence. They contend that the trial court did not
address their claims and evidence of Auto-deduction/unpaid wages and therefore
the court abused its discretion by denying class certification.
face="Times New Roman">
face="Times New Roman">Below, appellants
claimed that respondent had a common policy of understaffing, which prevented
AD nurses from taking meal breaks; that respondent imposed automatic pay
deductions for meal periods, and that as a result they failed to pay overtime
wages for AD nurses who did not take meal breaks. They supported these claims with expert
testimony and declarations from the nurses.
However, respondent presented evidence at the certification hearing
countering appellants’ evidence and claims.
Respondent provided evidence that there was no common company-wide
policy to auto-deduct wages and that any such automatic deductions related to
meal breaks was limited to one hospital and for a limited time period. Further, respondent provided declarations and
time cards from nurses indicating that nurses across the entire class were
consistently able to take meal breaks.
Lastly, respondent provided evidence that it had no understaffing policy
and had a disincentive to understaff nurses. The lower court found that
respondent did not have any company wide, uniform policies that prevented AD
nurses from taking lawful breaks and therefore the decision to take a meal
break, or not take a meal break, was made by individual nurses depending on
their patient situation and case load.
The court found that individual questions predominate the claims.
face="Times New Roman">The court’s resolution
is supported by the evidence in the record before us. Given the variances in the declarations and
deposition testimony, appellants failed to demonstrate a common practice or
policy preventing AD nurses from taking meal breaks. (E.g., Ali
v. U.S.A. Cab Ltd. (2009) 176 Cal.App.4th 1333, 1350 [“When
variations in proof of harm require individualized evidence, the requisite
community of interest is missing and class certification is improperâ€]; compare
with Bufil v. Dollar Financial Group, Inc. (2008)
162 Cal.App.4th 1193, 1207, 1208 [certification appropriate where employer had
policy of prohibiting certain employees from taking breaks].) Accordingly, this evidence supports the trial
court’s determination that “individual questions predominate†and, thus, will
not be disturbed on appeal. (See
Cal.4th at p. 1052 [Affirming appellate court’s order vacating certification of
an “off-the-clock†subclass, were the record lacked common proof, or evidence
of an uniform policy or practice. “Instead, the trial court was presented with
anecdotal evidence of a handful of individual instances in which employees
worked off the clock, with or without knowledge or awareness by Brinker
supervisors. On a record such as this,
where no substantial evidence points to a uniform, companywide policy, proof of
off-the-clock liability
would have had to continue in an employee-by-employee fashion. . . .â€].)
face="Times New Roman">In addition, appellants’ chronic
understaffing theory has been rejected in the past. (See Brown v. Federal Express
(C.D.Cal.2008) 249 F.R.D. 580, 582-587.)
The focus in Brown was on
scheduling and staffing constraints alleged to have effectively deprived
drivers of the opportunity to take code-compliant meal breaks. (See, e.g., id.
at 582-583 [citing plaintiffs’ contentions that defendant “was committed to
making a large number of deliveries on time and devoted insufficient resources
to this task. As a result, [drivers]
were put under excessive pressure to make deliveries as quickly as possible,
such that they were unable to take meal breaks and rest breaks within the time
required by law.†(Internal citations to
record omitted)]; id. at p. 586 [explaining that
the plaintiffs’ job duties “var[ied] significantly by job classification†and
that “[a]lthough FedEx may have consistent policies that apply across job
classifications, their impact on employees’ ability to take breaks necessarily
depends on each individual's job duties.
Analysis of whether drivers’ job duties precluded taking meal and rest
breaks would vary widely among Couriersâ€].)
Here, appellants were not able to show that the respondent had a
“pervasive understaffing policy†and only presented evidence that AD nurses had
limited times during AD sessions when they could take their breaks because of
their various job duties dealing with each patient.
face="Times New Roman">Moreover, although th
court’s order does not specifically address the “Auto deduction/unpaid wages
claim,†as alleged, that claim was derivative of appellants’ broader claim that
AD nurses were not afforded meal breaks.
Indeed, in concluding that individual issues predominated because there
was no evidence of a common policy denying meal breaks, the lower court found
that an individual determination would be required of each member of the class
to determine which nurses took meal breaks, which did not, and whether those
who did not were subject to an automatic deduction or were entitled to overtime
or unpaid wages. Indeed, respondent
presented evidence that “auto-deduction†was not an issue common to the class
appellants’ sought to certify, was not done pursuant to a company-wide policy
and limited to only one hospital.
face="Times New Roman">In sum, based on the
evidence presented at trial, and the deference we give to the court’s factual
findings, we affirm the denial of certification of the “Meal Period
Class.†(Brinker,
supra, 53 Cal.4th at p. 1022 [“Trial courts are ideally situated to
evaluate the efficiencies and practicalities of class certification and are
therefore afforded great discretion in granting or denying certification.â€].)
face="Times New Roman">Appellants further
contend that the trial court had an obligation to consider a “No Record
Subclass.â€
The
Supreme Court has “‘urged trial courts to be procedurally innovative’
[citation] in managing class actions, and ‘the trial court has an obligation to
consider the use of . . . innovative procedural tools proposed by a party to
certify a manageable class’ [citations].â€
(Sav–On, supra, 34 Cal.4th at p. 339, fn.
omitted.) Nonetheless, while a court may
create subclasses, it is not required to do so.
(See Sotelo v. MediaNews Group, Inc. (2012)
207 Cal.App.4th 639, 662 [concluding that lower court did not err in failing to
recognize subclasses plaintiffs suggested for the first time their reply brief
(to the motion for class certification) because plaintiffs failed to provide
any meaningful solution to the manageability concerns raised by the lack
commonality].)
face="Times New Roman">In their reply brief
filed in support of their motion, appellants argued that the trial court should
certify a “subclass†of plaintiffs covering the time period between April 1,
2004 and October 1, 2006, because during that time period respondent did not
keep accurate time records reflecting meal breaks. Appellants claimed that during that time
period only total daily hours were recorded electronically and there was no
punch-in punch-out data recorded for the meal periods. Respondent contested this claim at oral
argument pointing out that although there were no “electronic records†showing
meal breaks during the 2004-2006 time period, paper records did exist showing
when the nurses took meal breaks, and that both party’s experts had analyzed
the paper records.
face="Times New Roman">We find no error with regard to the “No
Records Subclass.†Appellants did not
demonstrate that there was a common policy or common issues of proof to support
this subclass. Respondent asserted that
written (i.e., non-electronic) records were maintained to show meal breaks
taken by the nurses during this period.
In any event it is unclear how certifying a “No Records Subclass†would
have provided any substantial benefits that rendered class treatment superior
to the alternatives. Appellants have not
articulated how a failure to keep electronic records of meal breaks prevented
employees from taking those meal breaks or that respondent had a policy or
practice of denying meal periods.
Moreover, appellants did not show how the use of this subclass would
resolve problems which plagued the larger class—that individual issues
predominated—that individual AD nurses took their meal breaks at various times
during their respective shifts and that uniform policies were not responsible
for an employee’s failure to take a meal break.
Therefore, the creation of a subclass would not have been an effective
procedural tool to create a manageable class and therefore the court did not
err in failing to certify a “No Records Subclass.â€
C. The
Application of Brinker
face="Times New Roman">Appellants seek to
assert a “new†legal theory to support the “Meal Period Classâ€
certification. Appellants argue that had
the Brinker decision existed prior to the
hearing on the class certification motion, they would have focused on
respondent’s “facially unlawful written meal written period policies.†They concede that this issue was not raised
at the trial level, but seek to raise this issue here on appeal based on their
view that Brinker established new law on this
issue.
face="Times New Roman">Traditionally, a party
may not raise a new contention on appeal.
However, a court may refuse to follow the doctrine where, after trial,
there is a change in judicially declared law that validates a theory that would
have been rejected if presented under the case law as it existed at the time of
trial. (9 Witkin, Cal. Proc. 5th (2008)
Appeal, § 414, p. 472; see, In re Marriage of
Moschetta (1994) 25 Cal.App.4th 1218, 1227; Fisher v. City of Berkeley (1984) 37
Cal.3d 644, 654, fn. 3; [“It is well settled that a court will consider on
appeal a new point of law decided while the appeal is pendingâ€].) Ultimately, however, application of the rule
is discretionary with the reviewing court.
(In re Marriage of Moschetta,
face="Times New Roman">We will not exercise our
discretion in this case because appellants have not shown that their new theory
of law “would have been rejected if presented under the case law as it existed
at the time of trial.†(
Cal.App.4th at p. 1227, fn. 12; quoting Witkin,
Cal. Proc. (3d ed. 1985) Appeal, § 322, p. 333; accord, 9 Witkin, Cal. Proc.
5th, supra, Appeal, § 414, p. 472.) Appellants claim that had they known that
common question eminently suited for class treatment,†appellants would have
raised this issue at the trial level.
face="Times New Roman">We disagree with
appellants that this aspect of the Brinker opinion
presented new or an intervening change in law.
that a uniform meal policy presents a common question suitable for class
treatment is a legal theory that was articulated in the case law and recognized
by the appellate courts well prior to the Brinker
decision. For example in Jaimez v. DAIOHS USA, Inc., supra, 181
Cal.App.4th 1286, the court held that a uniform class wide policy and practice
of misclassifying employees was a predominate factual issue which was amenable
for class treatment. (
Additionally, in Sav-on, supra, 34
Cal.4th 319, the Supreme Court held that a “class wide policy†by the defendant
supported the predominance of commonality.
(Id. at p. 332.) Furthermore, the Brinker opinion
itself recognized that issues related to a uniform policy are a well-established
means to show that an action is suited for class treatment:
face="Times New Roman">
“Claims
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. (See, e.g., Jaimez v. DAIOHS USA, Inc., supra, 181
Cal.App.4th at pp. 1299–1305, 105 Cal.Rptr.3d 443; Ghazaryan v. Diva Limousine, Ltd., supra, 169 Cal.App.4th at
pp. 1533–1538, 87 Cal.Rptr.3d 518; Bufil v.
Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, 1205–1208,
76 Cal.Rptr.3d 804.)†(
face="Times New Roman">Uniform policies have
been used to support class treatment consistently in the past prior to
appeal. To the extent the Appellants
wanted to rely on this legal theory to support their proposed class, they had
ample opportunity to present it in the trial court when they originally sought
certification. Accordingly, this court
will not exercise its discretion and address this “new†theory in this appeal.
face="Times New Roman">Appellants contend that
the lower court erred by failing to rule on the certification of the “Section
212 Class.†We agree.
face="Times New Roman">An order based upon
improper criteria or incorrect assumptions calls for reversal “‘even though
there may be substantial evidence to support the court’s order.’ [Citations.]â€
(Linder v. Thrifty Oil Co., supra, 23
Cal.4th at pp. 435-436; accord, Sav–On Drug
Stores, supra, 34 Cal.4th at pp. 326–327.) “If the trial court failed to follow the
correct legal analysis when deciding whether to certify a class action, ‘an
appellate court is required to reverse an order denying class certification. .
. , “even though there may be substantial evidence to support the court’s
order.â€â€™ [Citations.] In other words, we review only the reasons
given by the trial court for denial of class certification, and ignore any
other grounds that might support denial.â€
(Bartold v. Glendale Federal Bank
(2000) 81 Cal.App.4th 816, 828-829; accord, In re Lamps Plus,
supra, 209 Cal.App.4th at p. 47.)
face="Times New Roman">As explained elsewhere
here, the “No Records Subclass†and the “Auto deduction/unpaid wages claimâ€
were inextricably linked to the “Meal Period Class,†were addressed during oral
argument and were implicitly resolved in the lower court’s order. In contrast, the “Section 212 Class†is
factually and analytically distinct from the meal period claims and proposed
classes. It relates to the manner in
which paychecks were issued to employees.
face="Times New Roman">Respondent argued in its
brief and at oral argument that the statement in the court’s order that
“individual issues predominate†reflects the court’s ruling on the “Meal Period
Class†and the “Section 212 Class.†The court’s order, however, does not support
respondent’s interpretation. Indeed, the
court’s statement that “individual issues predominate†appears in the written order
in the middle of the court’s discussion of its
ruling on the “Meal Period Class.†The
court’s order does not contain any mention of the “Section 212 Class.†Nothing in the court’s order denying the
class certification motion expressly nor implicitly addresses whether alleged
violations of Labor Code section 212 would be suitable for class treatment in
this case. Thus, it would not be
reasonable for this court to infer that the trial court’s analysis of the “Meal
Period Class†applies to the “Section 212 Class.†Moreover, other than a passing mention of the
“Section 212 Class†by respondent’s counsel at oral argument at the hearing on
the motion, neither parties nor the court addressed the merits of certifying
the “Section 212 Class†at the hearing.
In our view, the “Section 212 Class†appears to have been excluded from
the court’s class certification determination.
face="Times New Roman">In light of the
foregoing, we cannot find that the court exercised its discretion in denying
class certification of the “Section 212 Class†and the matter must be remanded
to the lower court to consider it.
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
order is reversed and the matter is remanded to the trial court to consider
whether the “Section 212 Class†warrants class certification. The order is affirmed in all other respects. Each party is to pay its own
WOODS, J.
We concur:
PERLUSS, P. J.
JACKSON, J.
[1] Appellants asserted:
“[Total Renal Center]’s failure to provide meal breaks stems from its common
policy of chronically understaffing AD nurses at contracting facilities with
high-volume patient demand.â€
[2] In this regard the
court ruled: “Specifically, the
evidence, including that from plaintiffs, shows that it has been more likely
than not that an employee’s inability to take a meal break during five hours of
work was due to the particular duration of the patient hemodialysis treatment
or the employee’s own elected scheduling, and not due to the employer’s
policies. Employees have been able to
plan lunches at the beginning of work, in between setting up machines and
treatment, or in between treatments. The
times of inability have been mainly due to unexpected durations and
complications of a particular instance of patient treatment or elective, preferential
planning by employees themselves.â€
