Strong v. Blue Cross















Filed 1/23/13 Strong v. Blue Cross CA2/4











NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS











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opinion has not been certified for publication or ordered published for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 FOUR








>

EARLY STRONG, Plaintiff and Appellant, v. BLUE CROSS OF CALIFORNIA, Defendant and Respondent.	B231512 (Los Angeles County Super. Ct. No. BC382405)

APPEALS from an
order of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Ronald M. Sohigian, Judge. Affirmed.


Knapp, Petersen
& Clarke, Andre E. Jardini and Maria A. Grover; Law Offices

of Michael S. Duberchin and Michael
S. Duberchin; Law Offices of Alan R. Burman and Alan R. Burman, for
Plaintiff and Appellant.

Seyfarth Shaw,
Gilmore F. Diekmann, Jr., Jeffrey A. Wortman, Dennis Hyun,

and Jill A. Porcaro, for Defendant
and Respondent.

______________________________

Early
Strong appeals from an order denying certification of a statewide class of
non-exempt African-American employees of respondent Blue Cross of California
(Blue Cross), based on disparity in promotion and pay. We find no abuse of discretion and affirm the
order.



>FACTUAL AND PROCEDURAL SUMMARY

Strong, who is
African-American, has worked at the Blue
Cross Aranda Center
in Woodland Hills, California,
since 1998. Between 2003 and 2009, that
center had more than 4,500 employees, over 650 of whom were
African-American. There were over 600
departments and more than 1,000 job titles.


Two types of
promotions are available at Blue Cross.
A career progression advancement promotion occurs when a manager,
sometimes in consultation with the Human Resources Department (HR), determines
that an employee has the skill and experience to advance to a higher level
within a job family. Strong received
such promotions in 2000, when she advanced from a Customer Care Associate II to
a Customer Care Associate III, and in 2001, when she advanced to Senior
Customer Care Associate.

The second type of
promotion occurs as a result of an application process that begins when a
manager submits a requisition form to the HR’s Talent Acquisition Department. Depending on the position, the requisition
may be posted only internally or may also be made available to the general
public. Job postings, which include a
job description, minimum qualifications, and a prescreening questionnaire, are
generated by talent consultants (otherwise known as recruiters), according to
the managers’ specifications. It is not
unusual for a job requisition to be cancelled for budget or reorganization
reasons, or because of a change in the need for a position.

The talent
consultants screen the applications and, depending on the manager’s preference,
may forward to the managers all applications, only those meeting the minimum
qualifications, or only those of the most qualified applicants. Depending on the job description, applicants
may be interviewed by a hiring manager alone, a panel of managers, the director
of the department, a vice president of a department, or a clinical
employee. A screening or follow-up
interview may be delegated to a talent consultant or others within a
department.

For the most part,
managers make hiring decisions alone, but they may consider the input of
colleagues who participated in the interview process. Before an offer is made, a talent consultant
reviews the candidate evaluation form the manager completes, and sometimes the
manager’s interview notes, to assure that the manager has followed the company
policy and procedure, and that the candidate meets the job requirements. Typically, a talent consultant checks whether
the candidate the manager selected scored the highest on the evaluation form,
and may discuss any discrepancy with the manager.

In 2003, Strong
applied for, and was promoted to, the posted position of Lead Customer Care
Associate. In 2005, she transferred to a
lead position in the Provider Accounts Receivable unit. In 2006 and 2007, Strong unsuccessfully
applied for various other jobs within the company. She was either rejected, or the job requisition
was cancelled.

In December 2007,
Strong sued Blue Cross for race discrimination under the Fair Employment and
Housing Act (FEHA) (Gov. Code, § 12940 et seq.) and for unlawful business
practices under the unfair competition law (Bus. & Prof. Code, § 17200 et
seq.) on behalf of herself and all African-American employees at Blue Cross
since December 2003. In March 2010, the
court granted the Blue Cross motion for a protective order to limit personnel
data discovery to the Aranda Center. In October 2010, Blue Cross moved for an
order denying class certification, and Strong moved for an order certifying a
statewide class of about 800href="#_ftn1"
name="_ftnref1" title="">[1]
non-exempt former or current African-American employees based on disparity in
promotion and pay. In support of her
motion, Strong offered anecdotal evidence from 13 other employees and statistical
analysis by her expert, Dr. Mark R. Killingsworth, who concluded there was
race-based disparity in promotion and pay at the Aranda
Center. Blue Cross submitted a competing analysis by
its own expert, Dr. Daniel A. Biddle, as well as evidence of the decentralized
nature of promotion decisions.

The trial court
denied class certification on the ground that common issues did not predominate
and a class action was not a superior method for resolving the litigation. This timely appeal followed.href="#_ftn2" name="_ftnref2" title="">[2]



>DISCUSSION

We review the
trial court’s decision on class certification for manifest abuse of discretion
and do not disturb it ‘“unless (1) it is unsupported by substantial evidence,
(2) it rests on improper criteria, or (3) it rests on erroneous legal
assumptions. [Citations.]’ [Citations.]”
(Brinker Restaurant Corp. v.
Superior Court (2012) 53 Cal.4th 1004, 1022 (Brinker).) ‘“Any valid
pertinent reason stated will be sufficient to uphold the order.’ [Citation.]”
(Linder v. Thrifty Oil Co.
(2000) 23 Cal.4th 429, 436.)

A class action may
be allowed in a case where “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 . . . .” (Code Civ. Proc., § 382.) The requirements for class certification are
based on this statutory provision and federal precedent. (Brinker,
supra, 53 Cal.4th at p. 1021.) The class action proponent “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. [Citations.]”
(Ibid.)

I

For purposes of
class certification, a community of interest exists when there are “‘“(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.”’
[Citations.]” (>Brinker, supra, 53 Cal.4th at p.
1021.) Strong challenges the court’s
finding that common issues in this case did not predominate.

On the issue of
predominance, courts are allowed to 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 Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319,
333 (Sav-On).) Since predominance is a factual issue, the
trial court’s finding on this issue generally is reviewed for substantial
evidence. (Brinker, supra, 53
Cal.4th at p. 1022.)

A.
The Wal-Mart Case

In >Wal-Mart Stores, Inc. v. Dukes (2011)
564 U.S.___, 131 S.Ct. 2541 (Wal-Mart),
the United States Supreme Court recently considered what evidence is sufficient
for class certification under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e–2. In that case, female
employees of Wal-Mart sought to certify a nation-wide class of 1.5 million
members, based on alleged sex-based disparities in pay and promotion. (Id.
at p. 2548.) The court held the
plaintiffs had failed to identify a company-wide policy or practice of sex
discrimination, and their statistical and anecdotal evidence was insufficient
to justify class certification in the absence of such a policy or
practice. (Id. at pp. 2555–2556.)

Blue Cross argues
that Wal-Mart is dispositive. In reply, Strong attempts to distinguish the
case and to limit its holding to its particular facts. The size of the proposed class in >Wal-Mart (a nation-wide class of 1.5
million members) obviously was much larger than the statewide class of 800
members proposed in this case. But while
the court repeatedly noted the enormity of Wal-Mart’s nation-wide operations
and the size of the proposed class, these facts were not determinative of its
reasoning or holding. (>Id. at pp. 2546, 2552; see >Bolden v. Walsh Const. Co. (7th Cir.
2012) 688 F.3d 893, 897 [Wal-Mart’s
class size relevant to manageability rather than commonality].)

More importantly,
like Wal-Mart, this is a
“pattern-or-practice” case. The
plaintiff in such a case must “establish by a preponderance of the evidence
that . . . discrimination was the company’s standard operating procedure[,] the
regular rather than the unusual practice.”
(Wal-Mart, >supra, 131 S.Ct. at p. 2552 & fn. 7,
quoting Teamsters v. United States
(1977) 431 U.S. 324, 358 (Teamsters).) The Wal-Mart
case provides important guidance for class certification in pattern-or-practice
cases, and is directly on point in promotion cases, such as this one, where the
challenged decisions are made by lower-level managers.

We begin with a
review of the Wal-Mart court’s
reasoning and holding, and then discuss the evidence in this case.

The court began
with the general proposition that in order to establish commonality, the class
proponent must show the claims of all class members depend on 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,
supra, 131 S.Ct. at
p. 2551.) The court reasoned: “Without some glue holding the alleged >reasons for all [promotion] decisions
together, it will be impossible to say that examination of all the class
members’ claims for relief will produce a common answer to the crucial question
why was I disfavored.” (Id.
at p. 2552.)

Wal-Mart’s
corporate policy was of nondiscrimination, but it allowed local supervisors to
exercise discretion over employment matters.
(Wal-Mart, >supra, 131 S.Ct. at p. 2554.) The court explained that this type of policy
“‘should itself raise no inference of discriminatory conduct[.]’” (Ibid.,
quoting Watson v. Fort Worth Bank &
Trust (1988) 487 U.S. 977, 990.)
While it may have a disparate effect “in appropriate cases,” not all
employees will have a disparate effect claim in common. In a company that has a policy of
nondiscrimination, most managers will rely on nondiscriminatory criteria that
produce no disparate effect. (>Ibid.)
Others may rely on facially neutral criteria, such as test scores or
educational level, that disproportionately affect a particular group. (Ibid.,
citing Griggs v. Duke Power Co.
(1971) 401 U.S. 424, 431–432.) And still
others may misuse their discretion to intentionally discriminate. Thus, “demonstrating the invalidity of one
manager’s use of discretion will do nothing to demonstrate the invalidity of
another’s.” (Ibid.) The court held,
therefore, that in order to establish commonality in a case based on subjective
decisionmaking, the plaintiffs must present ‘“[s]ignificant proof that an
employer operated under a general policy of discrimination . . . .”’ (Id.
at p. 2553, quoting General Telephone Co.
of the Southwest v. Falcon (1982) 457 U.S. 147, 159, fn. 15.)

In the absence of
a company-wide policy controlling the exercise of discretion, the court
concluded that the plaintiffs’ statistical analysis of sex-based disparity in
promotion and pay was insufficient to establish commonality. In other words, merely proving that a system
of discretionary decisionmaking has produced a prohibited disparity is not a
substitute for identifying the specific employment practice that is
challenged. (Wal-Mart, supra, 131
S.Ct. at p. 2554.) The court concluded
the plaintiffs’ anecdotal evidence suffered from the same defects, in addition
to being too weak to support an inference of company-wide discrimination since
it was too sparse and unevenly distributed (one anecdote for every 12,500 class
members, in 235 out of 3,400 stores, concentrated in a few states). (Id.
at p. 2556.) The court contrasted this
evidence to that found sufficient in Teamsters,
supra, 431 U.S.
324: 40 anecdotes from individuals
spread throughout the company, which represented roughly one account for every
eight members of the class. (>Wal-Mart, at p. 2556.)

As the Seventh
Circuit has noted, Wal-Mart helps “to
show on which side of the line that separates a company-wide practice from the
exercise of discretion by local managers [a] case falls.” (McReynolds
v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (7th Cir. 2012) 672 F.3d 482, 490 (McReynolds).) In >McReynolds, Merrill Lynch was accused of
discriminating against 700 African-American brokers out of a work force of
15,000 in 600 branch offices. (>Id. at p. 488.) The plaintiffs challenged two company-wide
policies: allowing brokers to form teams
of their own choosing and transferring accounts of brokers leaving the company
to the remaining brokers based on their past success. (Id.
at p. 489.) The court held that, while
facially neutral, these policies could have a disparate class-wide impact that
supported class certification. (>Id. at p. 490.)

Here, the trial
court found that “there was no centralized body or policy for making
promotional decisions. . . . Each
department had its own manager who made the hiring decisions. . . . And every job had its own requirements which
were probably evaluated differently depending on the manager overseeing the
hiring.” On appeal, Strong does not
argue that there is a company-wide promotion policy that is discriminatory in
either its intent or impact. Instead,
she argues the evidence establishes that Blue Cross has a centralized promotion
system, which coupled with statistical and anecdotal evidence of
discrimination, is sufficient for class certification.

We examine these
arguments next.

B. The
Evidence

As a general rule,
when issues of class certification overlap with the merits of the case, a court
should consider the merits as necessary.
(Brinker, supra, 53 Cal.4th at pp. 1023–1024.) Here, the issue of commonality overlaps with
Strong’s claim that Blue Cross engages in a pattern or practice of
discrimination.

>1.
Blue Cross’s Promotion System

A company-wide
pattern or practice may be established by evidence that promotion decisions,
based on common criteria, are either the result of a centralized policy, or are
made or influenced by upper management.
(See, e.g., Ellis v. Costco
Wholesale Corp. (9th Cir. 2011) 657 F.3d 970, 983; Ellis v. Costco Wholesale Corp. (N.D.Cal. 2012) 285 F.R.D. 492, 511-516; Stephens v. Montgomery Ward (1987) 193 Cal.App.3d 411, 421 (>Stephens).) In Stephens,
for example, candidates for promotion were subject to a company-wide
performance appraisal system, and every appraisal was based on the same
criteria for the same job throughout the company. (Ibid.) Pay rates were set at the company’s
headquarters and administered at the district, rather than individual store,
level. (Ibid.)

Strong contends
the trial court incorrectly concluded that Blue Cross’s promotion system is
decentralized. Her contention is based
on evidence that 45 to 50 talent consultants are involved in the promotion
process by posting positions, screening applicants, and reviewing applications
for diversity purposes. But the evidence
does not support Strong’s representation that the talent consultants are a
centralized body that controls the promotion process.

The talent
consultants are essentially recruiters.
As Strong recognizes, not all of them are even located in California. Some, located as far as Missouri
and New York, generally support
the entire WellPoint family of companies, including Blue Cross. Their involvement in the promotion process is
ministerial as they must comply with the hiring managers’ wishes about what
information is to be included in a job posting and which applications are to be
forwarded to the managers. While a
manager may delegate some interviewing responsibility to a recruiter, the final
decision of whom to hire is made by the manager, not by the recruiter. The recruiters review the notes and
evaluation forms the managers submit in support of the promotion decisions, but
there is no evidence that they have the power to override the managers’
decisions. The recruiters, thus, cannot
be said to control the promotion process.


Strong also argues
that all jobs at Blue Cross are essentially office jobs that require a person
“to sit at a desk, enter data, and research in some way.” Even were this an accurate description of all
Blue Cross positions, it does not establish that the hiring managers use the
same promotion criteria for all positions, nor does Strong identify any such
criteria. On the contrary, one of her
theories is that some job postings were cancelled only to be reposted with more
stringent requirements that she no longer met.
She also argues that she was rejected for positions for which she was
more qualified than the successful applicants.
Assuming she could prove these theories, they do not establish that all
promotion decisions were based on the same criteria.

The trial court
correctly concluded the Blue Cross evidence shows a decentralized promotion
process, and Strong has not identified a class-wide promotion policy or
practice. Additionally, although the
proposed class also is based on an alleged disparity in pay, Strong does not
separately argue that pay rates are controlled by recruiters or are otherwise
centralized.

2. Statistical Evidence

Strong
argues she can make her prima facie case of company-wide discrimination based
on statistical evidence alone. While
statistical evidence of company-wide discrimination may be sufficient in
appropriate cases (see e.g. Teamsters,
supra, 431 U.S. 324, 337), the
statistical evidence in this case is limited to the Aranda Center. Strong contends the trial court should not
have held this limitation against her since the court itself had imposed
it.

In March 2010, the
court granted a Blue Cross motion to limit Strong’s discovery of personnel (or
so-called PeopleSoft) data, on which the statistical analysis was based, to the
Aranda Center. In its motion, Blue Cross
argued Strong was not entitled to statewide discovery of such data since she
worked only at the Aranda Center and had not shown a statewide policy or
practice of discrimination. In
opposition, Strong supplied a declaration stating only that she had applied to
several positions at other branch offices; she did not state that she was
challenging the promotion decisions regarding those positions as
discriminatory.

On
appeal, Strong does not argue the trial court abused its discretion in limiting
discovery to the Aranda Center. (Cf. >Lee v. Dynamex, Inc. (2008) 166
Cal.App.4th 1325, 1334 [on appeal from order denying class certification
appellant also challenged earlier order denying motion to compel
discovery].) She argues instead that, in
the order denying class certification, the court improperly faulted her for
presenting limited statistical evidence.
Had Strong identified a company-wide policy or a centralized
decisionmaking process, we would agree that the trial court abused its discretion
in rejecting her limited statistical data without allowing her to conduct
additional discovery. But since she did
not, the court’s ruling on class certification was in line with its earlier
discovery order, which Strong does not challenge.

Strong
argues that statistics limited to the Aranda Center may be imputed to the
entire company since, unlike the proposed nation-wide class action in >Wal-Mart, her proposed class is only
statewide, and there is not much regional variety in href="http://www.adrservices.org/neutrals/frederick-mandabach.php">California. Because she offers no legal or factual
support for this argument, we need not consider it. (Keyes
v. Bowen (2010) 189 Cal.App.4th 647, 655–656.)

The parties
represent that there are 39 Blue Cross offices in California and a total of
58,000 employees. We have been cited to
no evidence regarding the locations of these offices or their
demographics. Strong claims there is no
evidence that the Aranda Center is acting in a “rogue capacity.” Yet, in her declaration, she states that the
company’s ombudswoman made an onsite visit in 2006 because of an alleged
“serious problem in the Aranda Center with promotion opportunities for
African-Americans.” There is no evidence
the ombudswoman visited any other Blue Cross office.

Strong selectively
quotes from a 2009 e-mail by the Blue Cross President and CEO to argue that he
has acknowledged the existence of company-wide racial inequality. The relevant portion of the e-mail states
that one of the goals for 2009 was to “[i]mprove/maintain enterprise-wide
racial and gender diversity at the Staff VP and above level as compared to 2008
results.” This statement cannot fairly
be read as an acknowledgment of inequality.
Since the stated goal was to at least maintain the previous year’s diversity
results, those results must have shown there was racial and gender diversity at
the referenced levels within the company.
Nor does the statement speak to any lack of diversity at lower level
salaried positions, such as those to which Strong applied. It cannot be read as an acknowledgment of a
general company-wide racial inequality for positions it does not mention. Imputing Strong’s limited statistical data to
the entire company under the circumstances would be speculative.

The parties dispute
at length the validity of the regression analysis performed by Dr.
Killingsworth, which indicates a statistically significant racial disparity in
promotion and pay at the Aranda Center.
Specifically, Dr. Killingsworth found such disparity in the rate at
which hourly employees are promoted to salaried positions, when controlling for
variables such as sex, age, years of service, education, and annual pay. He also found a statistically significant
disparity when using Blue Cross’s own definition of promotions and controlling
for the same variables. The same was
true for the disparity in pay.

Blue Cross argues
that Dr. Killingsworth’s analysis of promotions from hourly to salaried
positions is invalid because he relied on a personnel data field that contained
a coding error, and did not reflect actual promotions. Strong responds that neither a coding error
nor the codes for hourly and salaried employees were disclosed by Blue Cross
during discovery. Blue Cross argues the
error was self-evident since, when it was corrected in 2005, it resulted in an
unusually high rate of transition from hourly to salaried positions. Blue Cross also takes issue with Dr.
Killinsworth’s analysis of the “probability” of promotions, but Strong retorts
that these probabilities were derived from an analysis of actual
promotions. The parties disagree as well
on what variables should be used to control the analysis. For example, Blue Cross argues that job title
should be a controlling variable, while Strong argues that higher paid jobs
already are tainted by discrimination.

The trial court
did not resolve these disputes, and neither do we, since they go to the weight
of Dr. Killingsworth’s statistical analysis rather than to the issue of
commonality. (See Wal-Mart, supra, 131 S.Ct.
at p. 2555 [even taken at face value, regression analyses did not establish
class-wide discrimination].) Even
assuming that Dr. Killingsworth’s statistical analysis is valid, it is
limited to the Aranda Center. In the
absence of other evidence of company-wide discriminatory policy or practice, it
is insufficient to establish commonality.
(See id. at p. 2556.)

3. Anecdotal Evidence

Strong’s
anecdotal evidence consists of her own and 13 additional declarations by Blue
Cross employees. None of the 13
declarants identified the office at which he or she worked, but Blue Cross
represented they all worked at the Aranda Center, and the trial court adopted
this representation in its order. Strong
does not dispute it on appeal. Since
there is no evidence that the declarants are spread throughout the company, the
declarations do not support statewide class certification. (See Wal-Mart,
supra, 131 S.Ct. at p. 2556.)

The anecdotal
evidence is weak for the additional reason that, while all but one declarant state
they are African-American, their complaints are so varied in kind that they
might not even support an inference that African-Americans were discriminated
throughout the Aranda Center during the class period. Some complained-of incidents are either undated
or predate the class period. Declarants
complain about specific supervisors in only a few departments, and two
declarants complain about the same supervisors in relation to the same
position. Not all declarants state they
applied for and were denied positions in the company. Not all state that the complained-of
treatment was disparate or racially motivated.
Only three declarants mention hearing racist or race-related comments by
a co-worker or a supervisor. A couple
claim they received unequal pay at hiring based on statements by co-workers; a
few others claim they did not receive certain pay increases, but do not state
this amounted to disparate treatment.

Thus, even if all
these anecdotes are true, not all can be fairly characterized as evidence of
race discrimination at the Aranda Center.
And even if they could be characterized as such, on their own they are
insufficient to establish a company-wide pattern or practice of discrimination.

In the absence of
evidence of a company-wide pattern or practice of race discrimination, the
trial court did not abuse its discretion in denying class certification for
lack of commonality.

II

Strong also
challenges the trial court’s determination that a class action is not the
superior method of resolving this case.

A class action is
proper where it ““‘provides small claimants with a method of obtaining redress
. . .”’ [citation]” and “‘when numerous parties suffer injury of insufficient
size to warrant individual action . . . .’
[Citations.]” (>Linder, supra, 23 Cal.4th at p. 435.)
The determination whether a class action would be superior to individual
lawsuits is usually based on such factors as each class member’s interest in
controlling his or her own case, the desirability and manageability of a single
class action, and any pending litigation by individual class members on the
same controversy. (Basurco v. 21st Century Ins. Co. (2003) 108 Cal.App.4th 110, 121.)

The
trial court determined that a class action would not be “the most efficient
way” of resolving this controversy because the Blue Cross hiring decisions are
decentralized, and the circumstances of the class members are too
individualized to be grouped into a single action. The court concluded that consolidating all
claims may be disadvantageous to class members who may have stronger individual
cases. The trial court’s determination
on the issue of superiority was largely based on its earlier determination that
individual factual issues predominate.

Strong relies on
the propositions that “[i]ndividual issues do not render class certification
inappropriate so long as such issues may effectively be managed . . .
[citations]” 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].” (>Sav-On, supra, 34 Cal.4th at pp. 334, 339.) But she presented no “innovative procedural
tools,” and no management plan. Instead,
she argued in conclusory terms that “the class will establish liability and a fair
method of determining the wages owed to each individual,” and the case will not
present “unique circumstances which would pose a difficulty in
management.”

In her reply brief
on appeal, Strong relies on Justice Werdegar’s concurring opinion in >Brinker, which identified employer
records, representative testimony, surveys, and statistical evidence as tools
available to render manageable the determination of damages in class action
cases. (Brinker, supra, 53
Cal.4th at p. 1054.) Justice Werdeger
rejected the respondent’s claim that a particular subclass in a wage and hour
lawsuit was “categorically unmanageable.”
(Id. at p. 1055.) She left it to the trial court “to decide on
remand, in the fullness of its discretion, whether in this case methods exist
sufficient to render class treatment manageable.” (Ibid.) Her opinion does not stand for the
proposition that statistical and anecdotal evidence render a class action
categorically manageable.

“It is not
sufficient . . . simply to mention a procedural tool; the party seeking class
certification must explain how the procedure will effectively manage the issues
in question . . . .” (>Dunbar v. Albertson’s, Inc. (2006) 141
Cal.App.4th 1422, 1432.) Here, there is
no explanation how Strong’s statistical and anecdotal evidence, limited as it
is to the Aranda Center, can be used to effectively manage a company-wide class
action.

Under the
circumstances, the trial court did not abuse its discretion in denying class
certification for lack of superiority.



>DISPOSITION

The order is
affirmed. Blue Cross is entitled to its href="http://www.fearnotlaw.com/">costs on appeal.

NOT TO BE PUBLISHED IN
THE OFFICIAL REPORTS





EPSTEIN,
P. J.

We concur:







WILLHITE,
J.







SUZUKAWA,
J.