Hart v.
Filed 2/21/13 Hart v. Grant County Excavation CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
DWYANE HART et al.,
Plaintiffs and
Appellants,
v.
GRANT COUNTY EXCAVATION, INC., et al.,
Defendants and
Respondents.
G046193
(Super. Ct.
No. 30-2008-00080888)
O P I N I O
N
Appeal from an order of
the Superior Court
of
County, Gail Andrea Andler, Judge. Affirmed.
Freeman Firm, Thomas H.
Keeling; Law Offices of Scott E. Schutzman, Scott E. Schutzman; Allen, Flatt,
Ballidis & Leslie and Michael Corey Bock for Plaintiffs and Appellants.
Littler Mendelson,
Fermin H. Llaguno and Michael A. Gregg for Defendants and Respondents.
*
* *
Plaintiffs
appeal the trial court’s denial of their motion for class certification in this
wage-and-hour dispute. The court ruled,
inter alia, that common questions of fact or law did not predominate. This stated reason for the court’s denial was
supported by substantial evidence. Accordingly, we affirm.
FACTS
In
July 2008, plaintiffs brought an action against their ex-employer, corporate
defendant Grant County Excavation, Inc., doing business as Environmental
Development Group (EDG), and individual defendants Jeffrey Sires and Stacey
Sires,
who allegedly controlled EDG’s Southern California
operations and made all corporate decisions pertinent to the causes of action
alleged in the complaint.
name="_ftnref3" title="">[3] In their complaint, plaintiffs pleaded nine
causes of action based on a variety of wage-and-hour theories of liability
(e.g., failure to pay wages, unlawful deductions, failure to provide rest/meal
periods, failure to pay wages or provide employee records to terminated
employees, failure to keep proper time card records, failure to compensate
travel time and provide lodging).
The
following background information is undisputed:
“EDG is a landscape and construction company with locations in Arizona,
New Mexico and California
and provides services to commercial clients such as big-box retailers. EDG employs individuals in an office
environment and others working out in the field. EDG’s field workers generally work in crews
of three to five, including one foreman.
The foremen are responsible for planning, organizing, directing and/or
coordinating the work performed by laborers at a particular jobsite. The foremen also drive EDG vehicles to and
from jobsites and are provided a company credit card to purchase materials and/or
equipment. Crews may work at one jobsite
in a single day or multiple jobsites depending on the nature of the work
requested. Each crew performs a
particular type of work at a jobsite such as landscaping, irrigation or
rebuild. Rebuild encompasses destroying
and rebuilding landscape or hardscape.â€
The
parties engaged in reciprocal discovery following the filing of the complaint
and prior to the filing of a motion for class certification.
In
April 2011, plaintiffs filed a motion for class certification, supported by
numerous declarations. Plaintiffs’
proposed class was limited to “all persons who are employed or who have been
employed by Defendants in the State of California within 4 years of the filing
of this Complaint, July 1, 2008, who had been employed by Defendants to provide
exterior property maintenance, repairs and landscaping services in California
and whose duties did not consist of over 50% administrative, executive, or
professional duties . . . .†In discovery,
EDG produced a document listing 692 potential class members with last known
addresses and phone numbers.
The
five categories of alleged wrongdoing against members of plaintiffs’ proposed
class included (1) persons “who were not paid all lawful wages due them for
hours workedâ€; (2) persons “from whose wages Defendants improperly deducted
expensesâ€; (3) persons “who were terminated or discharged within 4 years of the
filing of this Complaint and who did not receive the wages or wage
documentation to which they were entitledâ€; (4) persons “who were not providedâ€
with rest breaks and meal periods; and (5) persons whom defendants did not
require to take rest breaks and meal periods.
Plaintiffs
have abandoned the latter four allegations of wrongdoing on appeal. Thus, for purposes of this appeal, we focus
our inquiry on whether the court correctly denied plaintiffs’ motion to certify
a class of individuals employed by EDG from July 1, 2004 to July
1, 2008 “to provide exterior property maintenance, repairs and
landscaping services . . . who were not paid all lawful wages due them for
hours worked.†The essence of this claim
is that EDG allegedly required employees who performed off-site duties to meet
at EDG’s Irvine office in the
morning, load/unload EDG trucks, and ride in EDG vehicles to and from
worksites. EDG allegedly did not pay its
employees for the time between their arrival at the Irvine
office (when they clocked in) and their arrival at the first worksite of the
day.
v. Royal Packing Co. (2000) 22 Cal.4th 575, 578-579, 586-588 [if
employees are required to meet at central location and ride company bus to
first worksite, travel time counts as “‘hours worked’†under applicable
law].) Moreover, EDG allegedly altered
time sheets to reduce the number of hours paid.
It is unclear whether the time sheet alteration allegation is limited to
the context of travel time or if it extends to altering records of hours spent
performing tasks at worksites.
Defendants
opposed the motion for class certification.
In doing so, defendants submitted their own declarations, as well as
deposition testimony from individuals who submitted declarations in support of
plaintiffs’ motion. According to
defendants, the proffered deposition
testimony contradicted relevant statements made in the witnesses’
declarations and showed plaintiffs had failed to establish that common issues
predominated. We set forth in detail
relevant evidence submitted by the parties.
To
provide context for evidence from individual EDG employees, we begin by
describing evidentiary statements by defendants. In response to a special interrogatory asking
it to describe all EDG’s policies after July 1, 2004 with regard to employee
transportation to work sites, EDG responded in relevant part, “Throughout the
work day, . . . EDG’s Maintenance Foremen and Laborers travel to different job
sites. From July 1, 2004, to around December 1, 2006, Foremen and Laborers were paid their
regular hourly rate for travel time.
[¶] Beginning in or around December 1, 2006, EDG began paying
Laborers and Foremen minimum wage for travel time. The Foremen that drove EDG’s vehicles
continued to receive his/her regular hourly rate for travel time. [¶]
Beginning on or about November
1, 2007, EDG implement[ed] a new travel policy. Pursuant to such policy, Laborers and Foremen
(except for Foremen that operated EDG’s vehicles) were not paid for travel time
to the first job in the morning or from the last job site at the end of the
work day. Employees were not required to
travel in EDG’s vehicle and could, instead, provide their own
transportation. Except for travel time
to the first job in the morning and from the last job site at the end of the
work day, Laborers and Foremen were compensated for all travel time during the
work day, regardless of whether they carpooled in EDG vehicles or drove their
personal vehicles. [¶] On July 21, 2008, EDG implemented a new
travel policy and began paying Laborers and Foremen for travel time to the
first job site and from the last job site where the distance is greater than
fifty miles from EDG’s facility. In
addition, Laborers and Foremen are also compensated for travel from job site to
job site during the work day. The
Foremen that drive EDG’s vehicles continue to receive his/her regular hourly
pay for travel time including, travel time to the first job site and from the
last job site irrespective of the distance.â€
Stacey
Sires’s declaration in opposition to the motion for class certification
summarized EDG’s evolving policies on travel time: “EDG’s California customers’ job sites are
located in Southern and Northern California.
Due to the locations of customers, crews travel to different job
sites. From July 1, 2004, to around
November 2007, EDG paid field workers for
the time spent traveling to the
first job site, between job sites and from the last job site. Beginning in or around December 1, 2006,
wage for the time spent traveling
to the first job site and from the last
job site. Beginning in or around
October 2009, field workers that wanted to travel to job sites in company
vehicle met at a ride share location rather than EDG’s facility. EDG has always paid laborers and foremen for
travel from job site to job site during the work day.†(Italics added.)
EDG’s
interrogatory response and Stacey Sires’s declaration are silent with regard to
whether riding in an EDG vehicle to the first work site of the day was
mandatory prior to November 2007. The
interrogatory response and declaration are also silent with regard to payment
for time spent loading and unloading trucks at the Irvine office, both before
and after November 2007. EDG’s discovery
response and Stacey Sires’s declaration avoid any admissions of wrongdoing, but
are ambiguous upon close examination. In
particular, it is unclear whether EDG claims it paid at least minimum wage to
laborers for every hour spent travelling to the first work site and back to
Irvine from the last work site prior to December 2006.
Waylon Mattison
Plaintiffs
procured a declaration from Waylon Mattison, who worked for EDG from November
2006 to January 2008 as a regional superintendant for Southern California. Mattison supervised “all landscaping
maintenance crews assigned to Southern California, and . . . had oversight of
all the Wal-Mart stores [that] had . . . contracts with
[EDG].â€
According
to Mattison, “[t]he company would provide trucks for the employees providing
landscaping and maintenance services to travel to work
sites . . . . From
the time they left the yard to the time they reached the site, I was aware that
these individuals were to receive travel time under
of the company. The travel time pay was
supposed to be based on the GPS of the truck.
However, it should have been based on the time that they clocked in and
the time that they were actual[ly] traveling.
There should have been no distinction between travel time and time spent
at the work site. Foremen were supposed
to be responsible for ensuring workers clocked in and out correctly.â€
“The
entire travel time situation was a large problem for [EDG]. In general, the workers that I observed
clocking in and out during the time that I worked for EDG never received the
travel time that they were entitled [to].
Hours were always cut down. [EDG]
would use the GPS system as a means to justify correcting, altering, and
changing the hours actually noted by the employees on their time sheets. In my experience, the laborers were truthful
about the hours that they spent traveling, however, [EDG] unfairly would reduce
their hours. [¶] My best estimate would be that an individual
who was actual[ly] working and traveling on company trucks for forty hours
would see his hours reduced to thirty-one to thirty-two hours. The GPS system was a failure that under-compensated
employees, as it merely recorded when a truck was moving, not when employees
arrived at work. Additionally, workers
when they arrived at the [EDG] headquarters would have to set the trucks up for
the day, including unloading the truck, placing trash . . . into a large bin,
placing equipment into the truck, or removing equipment from the truck. Workers would work for hours before travel
began, and then would often wait in the truck before and after travel commenced,
and would be uncompensated for this time.â€
“For
jobsites located throughout Southern California, workers would typically be on
duty for twelve to thirteen hours, but would largely see their pay reduced to
eight hours a day. Employees who
complained about the reduction in hours and asked for full payment of their
hours were ignored, or were met with frustrating delays and eventually gave up
or had their claims denied. The crews at
the beginning received overtime pay more frequently than later in my
employment. As time went by, overtime
became less and less frequent. [¶] In general, over the course of my employment,
approximately ninety-five percent or more of the time individuals would not
receive the full pay they were entitled to for landscaping and maintenance
services, ranging from two to six hours.
The payroll section . . . which included ‘Michelle’ and ‘Cindy,’ would
routinely alter time sheets by crossing out the hours indicated by the workers
and placing reduced hours on the time sheets.
The hours claimed by the workers, in my experience, were generally
correct and far more accurate than the hours used by [EDG].â€
Hart
worked for EDG from August 1, 2007 until April 2008, although from November
2007 he was designated as a foreman. Hart’s
stint as a laborer included tasks such as “rubbish removal, foliage and plant
installation, pruning, watering, irrigation, property repairs, [and]
pesticide/herbicide application.†Hart
worked on three different crews for three different foremen during his three
months as a laborer. Hart’s duties as
foreman were similar to what he did as a laborer, with the added
responsibilities of supervising his co-workers, managing the worksite, and
filling out time sheets for himself and the laborers. Hart’s work for EDG took him to locations
throughout Southern California, including distant worksites in Vista, San
Bernardino, and Calexico.
In
his declaration, Hart stated that his job required him to report to a location
in Irvine at approximately 5:00 a.m. and his job description included cleaning
EDG trucks and unloading/storing equipment at the Irvine location, but he was
“not compensated for this time.†In his
deposition, Hart testified that prior to November 2007, “we got paid for
loading and unloading the trucks.†After
November 2007, shop assistants loaded trucks so laborers and foremen would not
have to be paid for doing so.
Hart
declared that EDG employees “were required to travel in [EDG] vehicles. I was specifically informed at various times
that I could not use my own vehicle.â€
Hart attached a copy of his November 2007 employment agreement for his
foreman position to his declaration, which indicated that employees could use
their own vehicles or the complimentary EDG vehicle to travel to and from jobsites. In either case, according to the contract,
“Employee further acknowledges that he or she will not receive compensation for
travel time to the first job site in the morning or from the last job site in
the evening, whether in a vehicle owned or leased by EDG or on his or her
own.†Hart attested in his declaration
that the contract was “completely false†because foremen and laborers were
“required to use the company vehicle . . . .â€
In his deposition, Hart conceded that he had never asked for permission
as a laborer to drive his own vehicle to job sites. Moreover, Hart acknowledged at least some
instances in which employees would drive their own cars to worksites (e.g.,
parolees who needed to meet with parole officers during the day, medical appointments). Hart also admitted no one ever told him when
he was a laborer that he could not take his own car to jobsites. When he was a foreman, “[t]hey didn’t say you
couldn’t, but if I’m [a] foreman and I drive to a job location, who’s going to
drive my truck.â€
Hart
appended a foreman orientation document he received from EDG, which indicates
with regard to filling out time sheets that “travel hours are hours spent
driving or riding in the vehicle and must be at least 1 hour to report. Only foremen and pre-approved drivers will be
paid for full drive time. Passengers
will be paid half of the travel hours reported.†In his deposition, Hart testified that he
recorded all driving time on the time sheets (including time to drive to the
first worksite, time driving between worksites, and time driving back to Irvine
from the last worksite of the day). As
far as Hart knows, the foremen he worked for as a laborer filled in travel time
on time sheets the same way Hart did.
The record provides no clear indication as to when and how the
“half-time†travel pay policy actually worked.
Plaintiffs do not argue they were only paid for half of their travel
hours (at some point during the four years at issue) and defendants do not
address when, if ever, it paid for only half of travel hours reported (and for
travel hours only if there was at least one hour to report).
According
to Hart’s declaration, EDG reduced travel hours recorded based on GPS
records. Hart appended two time sheets
in which it appears that the number of hours written in by Hart were reduced by
a subsequent reviewer of the timesheet.
Hart claims his “hours worked were often reduced, travel hours were
changed, and no satisfactory explanation was ever given. . . . Typically my hours were reduced by twenty to
thirty percent.â€
Prevost
worked for EDG from January 1, 2006 to May 2007. Like Hart, Prevost began working as a laborer
but was subsequently promoted to foreman.
Prevost worked on three different crews during a five-month period as a
laborer. Prevost’s job duties were
similar to those of Hart. Indeed, much
of Prevost’s declaration, Hart’s declaration, and the other declarations
submitted in support of the motion for class certification use identical language,
as shown by an appendix submitted by defendants in their opposition papers.
Despite
claiming in his declaration that employees were required to travel in EDG
vehicles, Prevost testified at his deposition that with regard to at least one
jobsite he was given permission to drive his own vehicle. Prevost also recalls another employee who was
allowed to drive his own vehicle to worksites.
Like
Hart, Prevost claimed in his declaration that “foremen and laborers were
truthful about the hours that they spent traveling and working.†But Prevost admitted at his deposition that
he heard some workers recorded hours they did not work.
Plaintiffs
Plaintiffs
submitted three additional declarations of ex-employees to go along with those
of Mattison, Hart, and Prevost. These
declarations generally support the description of EDG policies advanced by
plaintiffs (e.g., employees were required to arrive in Irvine and clock in, but
were not paid for their time until they arrived at the first worksite; time
spent loading and unloading was not paid for by EDG; alterations were made to
time sheets, including the use of GPS records to reduce stated travel/work
time). The declarations for the most
part utilize language identical to that in the Hart and Prevost
declarations. The court granted
defendants’ motion to strike one of the employee declarations.
One
of the ex-employees, Abraham Montes, stated in his deposition that when he
first started working for EDG (about 2006 according to his declaration), he was
paid from the time he arrived at the Irvine facility until the time he returned
to Irvine at the end of the day. At some
point the policy changed. Montes
remembered he signed a paper and was told employees could drive their own
vehicle to a worksite. Montes noted that
because he never owned a car, the policy allowing him to provide his own
transportation never pertained to him.
Montes also testified that time spent loading and unloading trucks was
sometimes recorded on his time sheets.
Defendants
Defendants
procured 17 declarations from current employees and submitted those
declarations in opposition to the motion for class certification (it appears
the court may have discounted some of these declarations because valid
signature pages were not filed in a timely fashion). We describe relevant portions of two validly
submitted declarations for illustrative purposes.
Sean
Nailen, a laborer for EDG since August 2007, declared that he was paid for all
travel time prior to November 2007 (even travel time to the first jobsite and
from the last jobsite). Nailen
understood that in November 2007, EDG stopped paying for travel time to the
first worksite and from the last work site at the end of the day. Nailen has worked for several different crews
during his tenure at EDG, but stated his supervisor accurately recorded his
work hours and no one (to his knowledge) altered his time records. Nailen successfully resolved any paycheck
problems he has had with EDG by using a discrepancy form to dispute errors.
A
laborer named David Shirley, hired in March 2007, has worked for 15 different
foremen. Before November 2007, Shirley
was paid minimum wage for travel time to the first worksite. After November 2007, Shirley understood EDG
did not pay for travel time to the first worksite and back to Irvine from the
last worksite unless travel time was more than one hour. Shirley claimed that GPS records had been
used to reallocate his time between travel and work, “but it has usually not
affected my pay.â€
The
court denied plaintiffs’ motion. The
court explained its ruling in a minute order.
“The declarations by the named plaintiffs and witnesses in support of
the motion were boilerplate and conclusory.
In addition, the declaration of Mattison is insufficient to establish a
policy or common practice. No exhibits
were attached, and there was no attempt to lay foundation for any other
evidence. Moving party has failed to
meet its burden to show by a preponderance of the evidence that the claims
should be subject to resolution on a class-wide basis.â€
“Regarding
the purported class for failure to pay wages, it appears that this purported
class requires the consideration of different types of claims . . . . There was no showing by moving party that all
employees were subject to all of the identified practices. In fact, it appears that many, if not a vast
majority of the employees, were not.
This appears to require an individualized determination in order to
understand which employee was subjected to which practice. In some instances, such as the claimed
alteration of time cards, as well as failure to reimburse, there is
insufficient evidence to establish commonality, typicality, or numerosity. It also appears that different foremen
treated meal and rest breaks differently, raising issues not only of
commonality, typicality, and numerosity, but also ascertainability. Finally, there are questions as to whether
the class representatives would be proper.
Aside from the several instances where the declarations conflict with
deposition testimony, it is simply not clear from the moving papers which
plaintiff is a proper representative for which claimed class. There are other problems, such as Hart’s deposition
testimony that he was issued a company credit card for business related
expenses and that he never used his own money for work related expenses. This appears to make him unsuitable to
represent a class with claims related to expenses. Prevost admits in his deposition that
laborers did not have to stay with the truck.
This appears to make him unsuitable to make a claim on behalf of
laborers who claim they were denied meal breaks because they had to stay with
the truck.â€
“In
conclusion, the motion by plaintiffs for class certification is denied. The declarations cited by plaintiff in the
moving papers were either insufficient or to some degree contradicted by the
deposition testimony of the declarant.
The motion sets forth [a] laundry list of alleged labor code violations,
but little if any attention was paid to establishing ascertainability,
commonality, typicality, and numerosity.
The conclusory . . . Mattison declaration was not
sufficient to turn the individual allegations by Hart, Prevost, Montes and Bock
into common policies or conduct by the employer. The attached deposition testimony of four
additional witnesses was not sufficient to show a common policy for each of the
classes for a class allegedly as big as approximately 700 persons, with various
job titles and varying duties.â€
DISCUSSION
Code
of Civil Procedure section 382 authorizes class actions “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 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.†(Brinker Restaurant Corp. v. Superior Court (2012) 53
Cal.4th 1004, 1021.) “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.†(Sav-On
Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326.)
“The
question of class certification is essentially procedural and does not involve
the legal or factual merits of the action.
[Citation.] The ultimate question
in ruling on a class certification motion is whether the issues which may be
adjudicated as a class, when compared with the issues which must be adjudicated
individually, are sufficiently numerous or substantial to make a class action
advantageous to both the litigants and the judicial process.†(Knapp
v. AT&T Wireless Services, Inc. (2011) 195 Cal.App.4th 932,
938-939 (Knapp).)
“Trial
courts have discretion in granting or denying motions for class certification
because they are well situated to evaluate the efficiencies and practicalities
of permitting a class action.
[Citation.] Despite this grant of
discretion, appellate review of orders denying class certification differs from
ordinary appellate review. Under
ordinary appellate review, we do not address the trial court’s reasoning and
consider only whether the result was correct.
[Citation.] But when 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.†(
“We
will affirm an order denying class certification if any of the trial court’s
stated reasons was valid and sufficient to justify the order, and it is
supported by substantial evidence. [Citations.]
We will reverse an order denying class certification if the trial court
used improper criteria or made erroneous legal assumptions, even if substantial
evidence supported the order.
[Citation.] A trial court’s
decision that rests on an error of law is an abuse of discretion.†(Knapp,
supra, 195 Cal.App.4th at p.
939.)
By
abandoning most of its class claims on appeal (e.g., rest and meal breaks,
unlawful deductions from paycheck, failure to pay all amounts owed upon
employee termination), plaintiffs in effect concede the correctness of the
majority of the court’s order. With
regard to denying class certification of the claim that EDG failed to pay wages
for mandatory travel and loading time, the court cited the lack of evidence
demonstrating the employees in the proposed class were subject to common
policies or practices. According to the
court, this case would “require an individualized determination in order to
understand which employee was subjected to which practice.†The court’s stated reason for denying the
motion (i.e., common questions do not predominate) was valid and sufficient to
deny plaintiffs’ motion for class certification. (See Arenas
v. El Torito Restaurants, Inc. (2010) 183 Cal.App.4th 723,
732-734.)
Plaintiffs
contend that by reading between the lines, it “appears†the court erred by
actually adjudicating the merits of the dispute rather than the procedural
question of class certification. (See
Cal.App.4th 1333, 1345-1346 [rejecting similar claim and noting overlap
between merits questions and class certification questions].) Our review of the court’s order discloses no
hidden meaning. The court’s order did
not reach the merits of the dispute.
Instead, the court was not convinced by a
issues of liability predominated. The
court’s ruling provides no indication of how the merits of the case would be
resolved with regard to any particular EDG employee.
We
are left with the question of whether there is substantial evidence supporting
the court’s conclusion that commonality was not established by a preponderance
of the evidence. “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 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. ‘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.’†(Brinker Restaurant Corp. v. Superior Court, supra, 53 Cal.4th at pp. 1021-1022, fn. omitted.)
There
are certainly common questions at issue in this case. The parties dispute whether there was an EDG
policy requiring employees to meet in Irvine in the morning and ride in company
vehicles to the first worksite of the day.
The parties also dispute whether EDG’s laborers were paid adequately for
their loading time, travel time to the first worksite, and travel time back to
Irvine from the last worksite.
Furthermore, the parties dispute whether EDG followed a policy of
altering workers’ time sheets in order to reduce worker pay. Finally, regardless of the outcome of these
factual disputes, the parties no doubt would contest the legal consequences
thereof. Had it been presented with the
proposed class as narrowed and clarified by plaintiffs on appeal, the court
might well have decided that these common factual and legal issues overshadowed
any individual issues that would need to be addressed. For example, the existence of some instances
in which employees were allowed to travel on their own to worksites does not
necessarily mean there are no common issues amenable to class treatment. Nor do admissions by particular workers that
they have no knowledge of being shorted pay suggest a class action is
inherently improper. The workers may
well be mistaken in their understanding of the facts.
However,
“the proper standard of review is not whether substantial evidence might have
supported an order granting the motion for class certification, but whether
substantial evidence supported the trial court’s conclusion that common
questions of law or fact did not predominate over individual issues.†(Knapp,
supra, 195 Cal.App.4th at pp.
940-941.) The record supports the
court’s conclusion that common issues do not predominate. In its role as factfinder, the court was
distinctly unimpressed with the vague declarations submitted by plaintiffs in
support of the motion. As suggested by
defense counsel at the hearing on the motion, plaintiffs’ showing can
reasonably be characterized as “anecdotal evidence of a number of individuals
who believe that they didn’t get paid correctly.â€
Defendants’
evidence (i.e., declarations and deposition testimony) supported an inference
that not all EDG employees from 2004 to 2008 were forced to report to the
Irvine office for loading and travel without pay. Nor did all employees take issue with the
number of hours for which they were paid.
If resolving the factual and legal liability issues in this case would
require an examination of the policies and practices of each foreman over the
course of four years, as well as each individual’s experience with each foreman
for which they worked, it can reasonably be concluded there is insufficient
commonality to support class treatment.
It would be preferable, under this view of the case, for individual
aggrieved workers (or small groups joined together as parties) to seek relief
against EDG for alleged wage-and-hour violations.
We
also note defendants attempted to certify a class that included laborers and
foremen who worked for EDG over the course of four years. Evidence from both sides in this dispute
suggests EDG, on more than one occasion during the four years at issue, changed
its nominal policies and practices with regard to travel policy and travel
pay. It is certainly not clear from the
record that EDG employees who worked in 2004 or 2005 have anything in common
with EDG employees who worked in late 2007 and early 2008. Nor is it clear that foremen (like Hart and
Prevost in part) have much in common with laborers, as some evidence suggests
foremen were paid for travel time because they were required to drive the EDG
vehicles.
In
sum, substantial evidence supports the court’s commonality finding, which was
the primary ground relied on by the court for rejecting a class based on a
claim for failure to pay wages. We need
not address the remainder of the court’s order, which refers to theories of
liability abandoned by plaintiffs on appeal (e.g., meal and rest breaks,
deductions from paychecks). As noted by
plaintiffs in the briefs, the court’s concerns with regard to ascertainability,
typicality, and adequacy of representation related more to these other legal
theories.
Finally,
plaintiffs assert the court erred by failing to exercise its discretion to
allow plaintiff to amend its request for class certification. Plaintiffs do not point to any request they
made to the court for leave to file an amended motion to certify a class. Nor do plaintiffs point to any legal
authority for the proposition that a court abuses its discretion when it does
not, sua sponte, seek to rescue a class action from its perceived deficiencies
by granting leave to amend the motion for class certification or by rewriting
the class definition to address the court’s commonality concerns. Plaintiffs cite a single case pertaining to
trial courts having the power to redefine a class to preserve a class action
when the proposed class is not ascertainable.
(Hicks v. Kaufmann & Broad
Home Corp. (2001) 89 Cal.App.4th 908, 916.) But Hicks
does not provide authority for reversing the court’s ruling in the instant
case, as there is substantial evidence supporting the court’s judgment call
that commonality had not been established by a preponderance of the
evidence.
DISPOSITION
The
court’s order denying class certification is affirmed. Defendants shall recover costs incurred on
appeal.
IKOLA,
J.
WE CONCUR:
BEDSWORTH,
ACTING P. J.
MOORE, J.
Dwyane Hart and Greg
Prevost are individual plaintiffs purporting to bring this action on behalf of
all others similarly situated.
The record sometimes
refers to “Stacy†Sires, but we use the spelling utilized in the declaration
executed by “Stacey†Sires.
