*1 S106718. Aug. [No. 2004.] STORES, INC., Petitioner,
SAV-ON DRUG COUNTY, THE SUPERIOR COURT OF LOS ANGELES Respondent; al., ROBERT ROCHER et Real Parties in Interest.
Counsel Feld, Teslik, Cohn, M. & W. Joel Randolph Akin Strauss Hauer Gump Norris, Heinke, M. Lee S. Rachel and Sandra for Helyar A. Rex L. William Petitioner. Curiae on behalf Fetra for Foundation as Amicus Legal
Deborah J. La Pacific of Petitioner. Simmons, Mullin, & L. Kelly Hensley Richter Richard J.
Sheppard, Hampton, R. Hart for California Retailers Association and National Retail Douglas Federation Amici behalf as Curiae on of Petitioner.
Law Offices of Steven and Steven for as Employers Group Drapkin Drapkin Amicus Curiae on behalf of Petitioner. Scheib, Earl Shaw and Steven B. Katz for Costco Wholesale
Seyfarth Corp., Inc., Inc., Inc., Masters, Amici Curiae on behalf of Staples, Tuneup Petitioner.
Paul, Walker, & Paul and Patricia M. for Hastings, Janofsky Grossman Berry California Law Council Peti- as Amicus Curiae on behalf of Employment tioner.
Fred J. Hiestand for Civil Justice Association of California as Amicus Curiae on behalf of Petitioner.
No appearance Respondent. ¤ Riordan,
Riordan & P. Horgan, Dennis Donald M. Horgan; Righetti Matthew Wynne, Righetti, Edward J. John J. J.E.B. Wynne, Glugoski, Pickett; Daniels, Fine, Schonbuch, Fine, Brooks, & Israel Paul R. Scott A. Momita; Click, Kumetz, Click; S. Kumetz & Craig Fred J. Law Stephen Offices of Ian Ian Herzog, and Evan D. Marshall for Real Parties in Herzog Interest. Goldstein, Bailer, Goldstein,
Brad Seligman; Demchak & Saperstein, *5 Demchak, Bailer, Dardarian, Ho, & Borgen David Laura L. Joshua Borgen, Fund, and Darci E. Konecky Burrell for The Rural California Impact Legal Foundation, Center, Assistance Aid Legal Law Society-Employment Fund, Caucus, Mexican American Legal Defense and Educational Asian Law California, Pacific Asian American Center of Legal Southern La Raza Centro Inc., Legal, Women’s of Golden Clinic Gate Employment Rights University Law, Services, School Bet Tzedek San Law Legal East Jose Community Center, Blasi, California, Professor Los School of Gary University Angeles Grodin, California, Law and Professor Joseph University Hastings College of Law as Amici Curiae on behalf of Real Parties in Interest. Winikow; Rosenfeld, K.
Jeffery Van & Bourg, Weinberg, Roger Ellyn Moscowitz, Benson; Moss, Bamess, Sandra Rae Harrison & Spiro, Barge, Moss, Harrison, Dennis F. Steven M. Ira and Rene L. for Barge Spiro Association, California Public Lawyers California Teamsters Employment Council, Affairs Los and Angeles/Orange Construction County Building Council, AFL-CIO, and Construction Building Trades Alameda County Council, and Construc- County Building Trades AFL-CIO and Contra Costa Council, Curiae behalf of Real Parties in tion Trades AFL-CIO as Amici Interest.
Opinion WERDEGAR, J. is whether the trial court abused question presented The its discretion in as a class action this suit for certifying recovery unpaid overtime We conclude it did not and reverse accordingly compensation. of the Court of judgment Appeal.
Background Dahlin, and Plaintiffs Robert Rocher and Connie on behalf of themselves situated, action defendant Sav-on brought against Drug others this similarly Inc., Stores, chain. The second amended drugstore operative complaint Code, et and the (Lab. violation of the overtime statutes alleges seq.) § Code, (Bus. unfair & et as well as law Prof. competition seq.), § conversion, and for which seek damages injunctive declaratory plaintiffs relief. each cause of action are factual that defendant Underlying allegations from the overtime laws and failed to pay misclassified who owed to situated similarly employees compensation at defendant’s retail stores in California. worked the relevant during period The commanded that work in excess of hours Legislature “[a]ny eight has workweek . . . any in one work in excess of 40 hours in one workday than one and one-half times the shall be at the rate of no less compensated Code, (Lab. (a).) The rate of for an subd. regular pay employee.” § however, (IWC), authorized to statutorily Industrial Welfare Commission is from the that an overtime rate of “establish exemptions requirement compen- executive, administrative, ... employees, sation paid professional that the duties engaged provided employee primarily alia] [inter exercises customarily regularly meet the test of the exemption, [and] (Id., those duties . . . .” discretion and judgment performing independent (a).) subd. § *6 defendant compensated covered
During by complaint, period laws. wage Wage from the overtime managers, as salaried plaintiffs exempt the IWC and by to the mercantile industry promulgated orders relating 8, title at California Code of section Regulations, provided codified the overtime that same an from during exemption requirements period executive, administrative, or professional capacities.” “persons employed defined this as one in work “engaged The IWC Order No. original Wage 7-98 intellectual, creative, and which managerial, requires which is primarily The merits of underlying exercise of discretion and judgment.”1 independent and those situated similarly this concern whether or not litigation plaintiffs under were classified and this paid exemption. properly Our the trial court’s motion granting concerns present inquiry motion, of their that class argued for class certification. In support plaintiffs OM’s, (i.e., members hereafter sometimes managers, operating had, of their AM’s) and assistant hereafter sometimes on basis managers, work, uni- title and and without reference to their actual job descriptions fact, been defendant In defend- formly by misclassified as exempt employees. ant’s OM’s and AM’s under norananagerial, were nonexempt employees Moreover, relevant law. were defendant’s store “standardized.” operations and and AM’s Accordingly, duties of defendant’s OM’s responsibilities area, were similar in critical from area to store respects region region, to store. Class members work excess generally performed nonexempt of the time in their and their included percent workday, workday routinely work in excess of hours and/or 40 hours week. Notwith- eight per day per facts, contended, these standing class members were not paid mandated overtime statutorily compensation. certification,
In defendant that whether individual opposing argued member of the class is from the overtime exempt nonexempt requirements on which tasks that and the amount of depends person actually performed he time or she on which The actual actually tasks. activities spent performed AM’s, its OM’s by and the amount of time each OM and AM by spent activities, contended, defendant varied from store to significantly individual, factors, store individual to based on store including multiple size, volume, location and sales hours of physical layout, operation, manage- ment structure and hourly level of number of style, experience managers, reason, For this no employees requiring argued, supervision. meaningful generalizations about the circumstances of its man- employment could be made. agers motion,
The trial court the certification granted appointing plaintiffs a class defined as “all current and former salaried represent [OM’s] current and former salaried defendant... in California by employed [AM’s] 3, 1996, through The period April defined the trial court’s certification order is 22, 2001, orders, During period, wage containing June IWC applicable inclusive. three (See substantially Wage exemptions, successively governed. similar executive IWC Order 1, (eff. 1998); (eff. 2000); Wage No. Jan. and the current 7-98 IWC Order No. 7-2000 Oct. order, (eff 2001) adopted Wage first No. Jan. and codified as as IWC Order 7-2001 amended, (1)(A)(1).) Regs., Cal. Code tit. subd. § *7 3, 22, 2001, The at time between and June inclusive.” parties April 1,400 estimated have that the has between 600 and members. class a Defendant for writ relief. The Court of issued writ petitioned Appeal mandate the trial court to vacate its order class commanding granting certification and to enter a new and different order class certification. denying We for review. granted plaintiffs’ petition
Discussion We certifi reviewed established standards for class quite recently (Lockheed Martin Court Corp. Superior (2003) Cal.4th cation generally. (Lockheed).) 1096, 1, 63 P.3d Code of Civil Cal.Rptr.2d [131 913] one of a Procedure section 382 authorizes class actions “when the is question interest, common or or when the are general many persons, parties numerous, and it is them all before the court. . ..” The bring impracticable an certification has the burden to establish the existence of both seeking party ascertainable class and a well-defined class interest community among (Lockheed, Mutual Bank v. supra, citing Washington 1104, members. at Court Superior 320, (2001) 24 Cal.4th 15 P.3d Cal.Rptr.2d [103 Mutual).) (Washington em The of interest” “community requirement 1071] fact; (2) bodies three factors: common of law or predominant questions class; class with claims or defenses class representatives typical (Lockheed, who can class. representatives adequately represent The certification a one that does “essentially question procedural (Linder not whether an action meritorious.” factually ask is legally Thrifty Oil Co. 179, 2 (2000) 23 Cal.4th P.3d 439-440 (Linder).) A trial court determines on a certification motion ruling tried, “whether ... which when with may jointly compared issues that the those are so numerous or substantial adjudication, requiring separate maintenance of a action would be to the advantageous judicial process (Collins v. Rocha (1972) 7 Cal.3d and to the litigants.” Lockheed, accord, 225]; P.2d 29 Cal.4th 1104-1105.) determined that had The trial court in this case pp. issues established of the evidence common by predomi preponderance alternate means for a fair and nate and ruled that a class action is “superior efficient of the litigation.” adjudication abuse discretion. “Because trial
We review the trial court’s ruling the efficiencies and situated to evaluate ideally practicalities courts action, granting are afforded discretion great group they permitting court ruling certification. . . . a trial [Accordingly,] supported denying
327 (1) be disturbed ‘unless improper evidence will not generally substantial were made [citation]; (2) erroneous legal assumptions criteria were used be sufficient [citation], valid reason stated will . . . ‘Any pertinent [citation]’ ” (Linder, 435-436; supra, also Cal.4th at see to the order.’ 23 pp. uphold Lockheed, supra, 1106.) Cal.4th at p. the named the trial court erred in concluding
Defendant does not contend of the class and are adequate representatives have claims typical plaintiffs abused its discretion thereof. The issue in is whether the trial court dispute reasons, the we following that common issues For concluding predominate. it did conclude not.
As the focus in a certification is on what type questions— dispute action, the common or individual—are to arise in the rather than on likely 1106-1107; Linder, (Lockheed, supra, at merits of case 29 Cal.4th pp. supra, 439-440), 23 Cal.4th at whether there is substantial determining pp. order, evidence to a trial court’s certification we consider whether support is, certification as an advanced theory recovery proponents Lockheed, matter, (See treatment. to amenable to class analytical likely prove Anthony v. General Motors Corp. 1108; (1973) Cal.App.3d 254].) look to the courts Cal.Rptr. “Reviewing consistently declarations of allegations complaint attorneys representing Industries, (Richmond v. Dart Inc. class to resolve this plaintiff question.” Lockheed, (1981) 23]; P.2d see noted, As that defendant the class classified its allege during period AM’s and OM’s as from the laws and failed to them overtime exempt pay even to defendant’s uniform compensation though, pursuant company and, worked overtime hours at least policies practices, they consistently as a standardization defendant partly consequence imposed by operational stores, its various in fact insufficient time on tasks to among spent exempt certification, their In justify so classified. for class being moving plaintiffs argued that, to the trial court if on this could theory, they permitted proceed demonstrate, alia, (1) with common inter that: defendant all proof required week; class members to work more than hours per (2) defendant deemed each class member based on his or her job exempt actual rather than on consideration of work description any performed; member; (3) (4) defendant defendant no overtime class paid wages its in December reclassified all of AM’s from categorically nonexempt duties; their their without changing job descriptions activities; no members’ actual work records kept time; (6) defendant conducted no of how class members their work spent studies (7) defendant did not train class members on the difference between exempt work; (8) defendant’s AM and OM were job nonexempt descriptions uniform most of the tasks that throughout operations; both and defendant’s evidence indicates AM’s and OM’s actually law, were, a matter undertook Plaintiffs contend nonexempt. materials defendant treated its AM’s and OM’s indicating uniformly them to standardized store constitute substantial evidence assigned operations *9 that common issues will even if individual damage predominate computations ultimately required. certification,
In defendant that its if opposing argued determining liability, for individual any, necessarily making unpaid compensation requires of how much time each member actually working computations spent on tasks. defendant evidence specific Accordingly, argued, plaintiffs’ and standardization is irrelevant and cannot uniformity policy operational amount to substantial evidence that common and fact will issues law here, in the action. In its that briefing predominate emphasizes “[ejvidence, . . to be ‘substantial’ must be ‘of . ponderable legal significance ” nature, credible, (1980) reasonable in and of solid value’ v. Johnson (People 431, 738]) 26 Cal.3d 576 606 P.2d and that an Cal.Rptr. appellate [162 court whether there is substantial evidence to a trial court considering support (id. 577). must consider the entire record ruling Both are correct about the our general guiding parties principles inquiry. Indeed, “we consider whether the record evidence must contains substantial the trial court’s as a certification not finding, ruling support predominance (Lockheed, evidence cannot stand.” substantial supported But, Cal.4th at on inferences to certification order turns “[w]here ‘ facts, be drawn from the “the court has no to substitute reviewing authority ’ ” (Massachusetts that trial Mutual Ins. its decision for court.” Life Co. v. Court Superior Cal.App.4th accord, 190]; Walker v. Court Superior turn, therefore, 418].) P.2d We to the record. certification, alia, inter defendant’s
In moving presented, plaintiffs Manager” Manager” job “Assistant “Operating descriptions (pursuant defendant treated all AM’s and OM’s as from the overtime which for some or all of the defendant’s form for conducting laws class period),2 associates,” and memo- reviews of defendant’s “management performance for AM’s training randa detailing scheduling, compensation programs exempt,” claiming it did so “based Defendant concedes it “treated its OM’s and AM’s as managers positio1ns performing primarily expectation reasonable those would be its interrogatory indicating it managerial responses duties.” The record also contains defendant’s salary compensation hourly pay “from a form of to an rate of on December reclassified AM’s 19, 1999,” job change job description with “no in the duties.” of defendant’s designated the deposition
and OM’s. Plaintiffs also presented DeGaetano, Frank Paul manager district knowledgeable,” most “person interrogatory interrogatories, responses defendant’s to responses declara- (an AM), and the (an OM) Rocher and Dahlin of named Benissa (an OM), (an AM), Richard Featherstone tions of Mario Gardner their work (both describing general managers) Clifford and Aldag Stephen and defendant’s policies procedures. Adams, a human resources Brad
Defendant declaration of presented Division, Area Drug California Northern for defendant’s Southern manager stores, from and declarations describing policies, procedures, OM, defendant, their each an AM or describing 51 current employees work. order, must, as we the existence in favor of certification
Presuming *10 the record (People fact the trial court could deduce from every reasonably Johnson, for 576), we cannot it would be irrational say supra, p. that, fact a on of law or theory, court to conclude tried plaintiffs’ “questions the individual affecting common to the class over the questions predominate Mutual, Rather, 913). 24 Cal.4th at as the members” (Washington supra, p. concluded, documents, declarations, trial court and interroga- depositions, evidence that substantial tory by responses presented parties comprise if the common issues of law and fact will over individual issues predominate class action.3 They AM’s and OM’s overtime claims are tried as a . . . offered evidence thereof because they comprise “testimony writings [and] Code, (Evid. 140), in to to and a reason having “tendency prove” prove” § (id., 210), it that fact. The evidence is substantial because is not “qualified, § (Lockheed, 1111) Cal.4th at tentative 29 conclusionary” “ but, rather, nature, ‘of . . . reasonable in legal significance ponderable ” credible, Johnson, 576). of solid value’ (People substantial, evidence that deliberate The record contains if disputed, con The record also misclassification was defendant’s policy practice. that, substantial evidence in to standardization owing operational tains part classification based on job to what defendant contrary expected, perhaps de Either alone resulted in facto misclassification.4 descriptions widespread as the Court of is amenable to class treatment. theory Appeal Unquestionably, 3 evidence, additional judicial notice and/or for the court to take Defendant’s motion notice, judicial take both are denied. request Employers Group of amicus curiae 358, (Mangini Reynolds v. R. J. Tobacco Co. Cal.Rptr.2d Cal.4th 73].) P.2d noted, during it interrogatory period indicate that the class responses As earlier job change job description in the exempt nonexempt reclassified all AM’s from with “no evidence rationally regarded have the reclassification as common duties.” The court could observed, is entitled to defend against complaint by plaintiffs’ and, conse- to demonstrate wide variations in the of stores types attempting in the of activities and amounts of time workweek per quently, types OM’s and AM’s in those stores on different of activities. spent types Nevertheless, court evidence could conclude crediting reasonable it as to both whether a misclassification raises substantial issues policy event, whether, was into existed and a uniform classification policy put court, A even under the standardized conditions reasonable alleged. practice that, determinations, for individualized could conclude allowing damage to either scenario that the extent are able to demonstrate pursuant the rule rather than the a class action would misclassification was exception, overtime be the most efficient means of class members’ claims. resolving The record contains substantial evidence suggesting predomi nant issue in is how the various tasks in which AM’s and OM’s dispute We should be classified—as actually engaged nonexempt. previ have in an overtime case that task classification ously recognized exemption mixed and fact for a court to address is a law question appropriate from the amount of time calculating employees actually separately specific Water, (Ramirez tasks. v. Yosemite Inc. 20 Cal.4th spend specific (Ramirez) P.2d trial [instructing fn. to “itemize the court case salesperson exemption types an court to activities that it considers to be sales related” to “enable appellate correct”].) review whether the trial court’s classifications are legal hand, each the 51 declarations the AM’s and OM’s On one *11 tasks) their actual work that defendant submit describing (including specific ted in certification states that the declarant a his majority opposing spends time Plaintiffs characterize most of that same or her tasks. managerial correct, the fact is the tasks work as of who is nonmanagerial. Regardless during the and the AM’s actual status respecting policies both defendant’s classification period. relevant argued of the certification motion support Plaintiffs in their issues statements submitted purposes of California overtime exempt non-exempt that a series of tasks are or “[w]hether issue, referencing found in defendant’s own is a common the “finite list of tasks” laws” that all class example, plaintiffs argued, prove and For can declarations OM’s AM’s. “[o]ne sales, customers, selling, ringing answering the spend great greeting up a deal of time members customers, shelves, stocking merchandising, unloading packing and deliv telephone, assisting eries, testimony each class member. Plaintiffs also cleaning” and without individual from There, that both AM’s and interrogatory responses. defendant concedes pointed to defendant’s including “checking out “may occasionally perform” “types nonexempt certain tasks” OM’s shelves, customers, shelves, stocking facing cleaning and the store.” Defendant also lists tasks trucks," unloading “checking quality quantity and of warehouse (e.g., “supervising the store,” assets," closing “safeguarding company “opening and shipments,” vendor customers,” that “ordering emergency repairs”) “making employees the store safe for and nonexempt. exempt, plaintiffs contend were defendant contends were but discussed in both a reason- defendant’s submissions plaintiffs’ comprise court, finite definite and the trial ably only list. As to plaintiffs argued “[t]he difference between Defendant’s declarations and Plaintiffs’ evidence is that on whether certain identical work tasks are parties disagree ‘managerial’ ’ . . . This is an issue that can be resolved on ‘non-managerial. easily class-wide basis each task to one side of the and makes by assigning ‘ledger’ of the case not the task Defendant has to manageability daunting sought court, decision, The trial its certification portray.” reaching expressly agreed.
Defendant, course, does not concede the misclas viability plaintiffs’ misclassification, sification theories. Defendant denies it in deliberate engaged it claiming “treated its OM’s and AM’s as based on its reasonable that expectation managers in those would be positions performing primarily And managerial duties.” defendant challenges plaintiffs’ allegations respect out, the effect ing of standardization in defendant’s as the operations, pointing observed, Court of that Appeal its state interrogatories responses plaintiffs’ that the actual tasks time class members and the amount of performed by on those tasks spent vary from significantly manager cannot manager on a adjudicated class-wide basis. But the trial court was within its discretion to defendant’s, credit evidence on these over points we have no to substitute our own authority for the trial court’s judgment this or respecting any (Walker other conflict in the evidence. v. Superior Court, supra, 53 Cal.3d at A reasonable court could conclude that issues respecting legal classification of AM’s and OM’s actual proper activities, with issues along defendant’s respecting policies practices standardization, issues are respecting operational in a likely predominate over individualized proceeding calculations of actual overtime hours that might ultimately necessary. prove
The trial court was not deciding—nor we—the merits of plain context, tiffs’ case. We have in the previously recognized, certification acts, here, common issues bemay when a defendant’s present tortious are the same with “allegedly regard (Lockheed, to each plaintiff.” Land, concession]; Cal.4th at [noting see Occidental *12 Inc. v. Court Superior 18 Cal.3d Cal.Rptr. Land, (Occidental P.2d Inc.) defendant’s [concerning alleged misrepre sentations].) We need not conclude that evidence is or plaintiffs’ compelling, even that the trial court would have abused its had discretion if it credited defendant’s evidence instead. is of no that the trial court consequence “[I]t evidence, inferences, believing other or drawing other reasonable have might (Bowers reached a conclusion.” v. Bernards contrary 150 Cal.App.3d 925], omitted, Johnson, italics citing People supra, 576-577.) 26 Cal.3d at pp. its the basis for that the trial court failed to explain
Defendant asserts the record is to the contrary. but that common finding questions predominate, the contentions the trial court examined parties’ At the certification hearing, evidence that noted plaintiffs’ in detail. The court specifically AM’s and OM’s without exception, rel[ied] classified its “exempt and who is not who is redefining on these titles alone exclusively is evi- the defendant’s class-wide exemption The exempt. predominance existed, that’s ever that there is no compliance program denced the fact by The member has ever received overtime compensation. and no single store, em- to not from store to vary employee class-wide does policy evidence, The court also noted “representative ployee.” each, that which “all say the work of describing declarations of 51 persons” their time on managerial than 50 the declarants more spend percent activities.” in certifying the evidence it was relying upon
The trial court also specified action, including parties’ “all the moving papers,” this referencing issues, exhibits in support common multiple statements respecting Paul, D-E-G-A- motion, Frank last name is and “the of one testimony of the and the person E-T-A-N-O. He’s . . . defendant’s corporate representative, that interrogatories the defendant’s answers to And also knowledgeable. most that motion for The relevant minute order states have been involved.” “[t]he into the record recited grounds based granted upon class-certification the order is
333 issue of will each member” if damages for class require separate proof see, conditions]; terms and plaintiffs prove job e.g., employer misrepresented 566, v. Carleson Hypolite (1975) 52 579-581 Cal.App.3d Cal.Rptr. [125 221] to calculate denied does not defeat individually benefits wrongfully [need of interest where class members claims on the community based same allege event, invalid In “a regulation].) class action is not inappropriate simply because each member of at some to make an may point required individual her as to his or for or as to the amount showing eligibility recovery of her damages.” (Employment Development Court his or Dept. Superior 256, 612, (1981) 575].) 266 P.2d Cal.Rptr. [178 asserts, Defendant without that the of sweepingly support, portion plain tiffs’ evidence that focused on defendant’s class-wide and policies practices, rather than on “whether each class member meeting employer’s reasonable is irrelevant to the expectations,” issue. But defend predominance ant does not se bar suggest any exists certification based per partly and pattern evidence or similar of a practice evidence defendant’s class-wide behavior. California courts and others have in a wide of contexts variety evidence, evidence, considered and pattern practice statistical evi sampling dence, and expert testimony, other indicators of a defendant’s centralized in order to practices evaluate whether common behavior towards similarly Indeed, situated plaintiffs makes class certification as the Court appropriate.6 of Appeal recently recognized, use of statistical in an overtime sampling class action “does not with dispense but rather offers a proof damages (Bell different method v. Farmers Ins. Exchange (2004) proof’ 715, 750 Cal.App.4th 544]). [9
Defendant characterizes declarations generally conclusory containing detailed, it “boilerplate,” contrasting what calls “Sav-on’s 52 6 See, e.g., 324, International Brotherhood (1977) Teamsters v. United States 431 U.S. (statistics 337-340 L.Ed.2d S.Ct. by specific bolstered “are equally 1843] incidents Lockheed, competent proving discrimination”); employment pages Cal.4th at (“well sampling hydrological 1106-1108 and other pattern degree data” about “the could, to, contamination” but support theory negligence was insufficient “a that a defendant’s all, all, has necessitated monitoring individuals”); increased or different nearly exposed Reyes Supervisors v. Board Cal.App.3d Cal.Rptr. 1279 [242 339] (certification wrongfully of class action for denied welfare proper benefits because “whether County applied an sanctioning process” deny eligibility unlawful proved “can be reviewing County’s regulations, practices making sanctioning ... the standard followed in decisions, sampling cases”); Stephens Montgomery as well as a Ward representative (certification Cal.App.3d proponent satisfied com monality requirement analysis with statistical data corporate of retail chain’s structure supporting allegations decisions); respecting centralized employment control over see also In state, Litig. re Simon II (E.D.N.Y. 2002) (tobacco listing high 211 F.R.D. 146-151 case court, federal, secondary concluding other aggregate proof authorities is “consistent with rights legally defendants’ Constitutional support plaintiffs’ available to state law claims”). *14 334 however, observations, the of go weight declarations.” Such to
fact-specific And, evidence, a entrusted to the trial court’s discretion. the matter generally noted, as evidence as defendant as well plaintiffs presented respecting structure with evidence along defendant’s personnel policies management actual individual activities. managers’ respecting his Defendant that Mario declaration described concedes Gardner’s an AM manner that certification had duties as in a might permit plaintiffs declarations, does not marshaled more such but this declaration argues single of credible class Defendant is Evidence even one treatment. mistaken. support Code, (Evid. 411.) of “is sufficient for fact.” witness proof § evidence, of weight sufficiency And as to the “questions it, therefrom, to be to be drawn construction inferences put upon of . . . and the determination of conflicts witnesses credibility [any] inconsistencies in their are matters for the trial court to resolve.” testimony 235, Beach (Thompson City Long 649].) 246 P.2d v. 41 Cal.2d Moreover, above, Mario was not the declaration noted Gardner’s only AM’s in nonex engaged primarily to indicate and OM’s presented Indeed, even declarations activities. theory, empt relevant on that may prove point.
Nevertheless, those insists that because exempt employees intellectual, creative, and “in work is engaged managerial which primarily (IWC which exercise of discretion and requires independent judgment” (eff. 1998), No. Jan. “the central factual issues in this Order Wage 7-98 class members and the amount actual tasks dispute performed by [are] But time on each those tasks.” even if some individualized proof spent claims, to members’ that such facts class parse such ultimately required not follow. in the action does necessarily will predominate We “that each class member be long might required ago recognized necessarily claim not mainte justify an individual does ultimately preclude Rocha, (Collins v. supra, 238.) at a class 7 Cal.3d p. nance of action.” necessity “the for class members Predominance is concept, comparative fact does not mean individual establish individually eligibility damages (Reyes Supervisors, supra, Board predominate.” questions Lockheed, Daar 1105; supra, 1278; at Cal.4th see Cal.App.3d p. p. Co. YellowCab 433 P.2d Cal.Rptr. 707-710 [63 so 732].) long Individual do not render certification issues inappropriate Industries, (Richmond v. Dart issues may effectively managed. as such Land, Inc., Inc., supra, see also Occidental 473; Cal.3d p. Mutual, Washington 363-364; 24 Cal.4th at Cal.3d at pp. members may is it to certification that individual class
Nor a bar that the need their We have damages. recognized need itemize ultimately individualized is not se an obstacle to class treatment proof damages per Land, Inc., (Occidental supra, 18 Cal.3d at
P.2d class action and “that each buyers’ against developer]) [home *15 member of the class must his claim to a of any prove separate portion recovery by class is one factor to be considered in only determining v. Court whether a proper” (Vasquez Superior class action is 4 Cal.3d 800, 796, 809 484 P.2d class action Cal.Rptr. (Vasquez) [94 [consumers’ finance against companies]). neither in the under
Accordingly, variation mix of actual work activities OM’s, taken the class during individual AM’s and nor differences period by member, in the total overtime each unpaid owed class bar class compensation 4 Cal.3d at certification as a matter of law. (Vasquez, supra, 815 p. [“although each member ultimately class will be in some manner to establish required his individual this damages circumstance does not the maintenance preclude Co., of the see Daar v. Yellow Cab action”]; suit as a class supra, at 707 is a p. common recovery in order establish necessary [“Nor interest”]; Los Fire & Angeles City Protective Los community League Angeles (1972) 23 74 Cal.App.3d Cal.Rptr. 908] [“differences as to sub-groups assignments ranks” “in no among firefighters way detract from” action].) common issues in overtime class be, course,
“It that the trial may court will determine in subse quent proceedings that some of the matters on the bearing right recovery occur, require separate each class If proof by member. this should rule ... applicable is that the maintenance of the suit as a class action is not tried, so precluded as the issues long which when may jointly compared those requiring separate adjudication, maintenance of the suit as a justify Lockheed, 4 Cal.3d at 815; action.” (Vasquez, supra, supra, see p. 1105.) Cal.4th at And if p. individual issues unanticipated unmanageable arise, do (Lazar the trial court retains the of decertification. option Hertz see, Corp. 849]; Cal.App.3d e.g., American, O’Connor v. North Boeing Inc. (C.D.Cal. 2000) 404.) F.R.D. Ramirez, Defendant that our mistakenly suggests decision Cal.4th bars class certification in this matter. Defendant that when argues certification, in an overtime case seek class “the trial court must determine whether the evidence shows that application Ramirez member, factors—the actual tasks each class the amount of performed by tasks, time each class member on those spent how class member’s to the common practices reasonable compare employer’s expectations—raises that over questions individual issues.” Defendant both misstates predominate and overstates the significance Ramirez. was an action for a bottled-water-
Ramirez unpaid brought by route sales (Ramirez, his against former representative employer. that the 790.) ruling the Court of Appeal’s plaintiff Cal.4th at We reversed p. largely “outside defining salesperson,” under an IWC order wage was exempt regulations, relied on certain federal had because court inappropriately (Id. law, that determination. in making which varied from California an a court whether deciding employee we doing, In so explained “into inquire under the state rule should an applicable outside salesperson (Id. omitted.) italics Specifi of the job.” the realistic requirements indicated, actually . . . how the employee “the court should consider we cally, from diverges practice or her time” and “whether employee’s his spends (Ibid.)7 . .” realistic . . the employer’s expectations extent, and, In to that is not apposite. a class action was not Ramirez standards, Ramirez, change let alone did not even discuss certification we *16 trial courts’ for constraining is no authority them. Accordingly, Ramirez (Linder, supra, certification” denying discretion in granting “great asserts, or, a 435) applying as defendant Cal.4th at more p. particularly an overtime case seek class whenever in set of “factors” particular decision that discretionary of a class is a certification. The certification (Id. at 435-436.) relevant considerations. many pp. demands the weighing case, not particularly And even as an overtime exemption Ramirez inherent in the IWC’s was tied to the “logic quantita- Our analysis apposite. (Ramirez, 802) 20 Cal.4th at p. supra, tive definition outside salesperson” force, every the same in with and would not necessarily apply, apply Ramirez, a concern that in for example, context. We exemption expressed test, to sell “evade might an activity” assigned under a “actual employee pure his own “substandard perfor- a valid salesperson] exemption” [outside here. (Ibid.) concern applies No one similar selling. suggests mance” in have to resolve significant that a trial court may While we recognized in a exemption particular when applying salesperson factual discrepancies to not in (Ramirez, 803), purport Cal.4th at we did supra, Ramirez case p. to overtime that parties of evidence or methods proof limit the types the state test for relevant to to bear. considerations Listing may bring disputes reliance trial courts to avoid sole we counseled “outside simply salesperson,” “the actual hours average or on either on “an job description” employer’s (id. 802). on sales activity” p. spent employee re- of the considerations overtime class action Presence in a particular Any class certification. not necessarily preclude viewed in does Ramirez (Ramirez, or her time” his actually spends “how the employee over dispute course, to generate has the 802), potential 20 Cal.4th considerations, invoking what means to refer when that defendant apparently, these It is to it “the factors.” Ramirez calls
individual But issues. considerations such “the realistic employer’s expec- (ibid.) (ibid.) tations” and “the actual overall job” requirements to likely prove of common Defendant’s susceptible “realistic proof. expecta- tions,” case, in become relevant particular, may in this and a court reasonable could conclude these are of common susceptible proof.8
Defendant would have us extend to shield an from Ramirez employers action challenging a type that our decision in that illegality case was actually designed One of our core prevent. concerns was that Ramirez “if hours worked on were sales determined through job employer’s ... description, could make an employer from the employee exempt overtime laws solely by an idealized fashioning that had little job description (Ramirez, basis in Here, reality.” 20 Cal.4th at allegedly promulgated but exempt job descriptions, implemented policies that failed to practices discretion, afford its AM’s and OM’s true managerial and standardized store so that operations were managers obliged spend over 50 percent their time doing the same tasks as their subordinates.9 Defendant we suggests bar class certification of an action based such allegations, on the (and somewhat ironic half-stated) only surmise that some fact, individual AM’s and OM’s may, have labored below the 50 percent mark on tasks nonexempt notwithstanding defendant’s class-wide alleged policies practices either designed or destined to assure the We contrary. decline the invitation. Contrary our observation in implication, *17 that whether the an Ramirez is outside employee “first salesperson depends foremost, how the his employee actually [on] or her time” spends (Ramirez, 802) did not create a that imply courts requirement an assess affirmative employer’s defense exemption against every member’s claim before an certifying overtime class action. 8 Defendant claims it “treated its OM’s and AM’s as based on its reasonable expectation managers that in positions those would performing primarily managerial (absent duties.” expectations Defendant’s actual misclassification) deliberate presumably are materials, indicated job in its descriptions training and as noted the record contains substantial evidence that light whether these were realistic—in policies of defendant’s practices, operational and of standardization—may be addressed with common evidence. authority Federal that allegation, indicates either proved, if would be sufficient to render the (Cf. affected Burger King nonexempt eligible workers and thus Donovan for overtime. Corp. (2d 1982) Cir. [affirming (FLSA) 675 F.2d 518-519 Fair Labor Standards Act “ overtime award managers where assistant ‘spent doing at least half of their time the same ” hourly work as the employees’ consequence as “a direct a corporate policy deliberate regional the level which dictated ‘ideal’ Donovan hourly production”]; ratios of labor to
Burger King Corp. (1st 1982) duty Cir. 672 F.2d primary “whose is [worker management may qualify” still fail “executive” exemption managerial FLSA “if his work, status performance significant coexists with the of a amount of menial in the a as case of working ”].) supervisor or ‘strawboss’ Moreover, would essen- reading defendant’s proposed Ramirez require, the that a certification in an overtime class action tially, proponent prove a raises the affirmative entire class was whenever nonexempt in we that “the assertion defense of But itself recognized Ramirez exemption. to be affirmative of an from the overtime laws is considered an exemption defense, and the bears the burden of the employ- therefore employer proving 794-795; accord, (Ramirez, 20 Cal.4th at exemption.” pp. ee’s Co. v. McGraw-Hill Nordquist Broadcasting Cal.App.4th bears burden of an “employer proving employee 221] [an a that is Were we to as certification exempt”].) require prerequisite was, as the Court demonstrate defendant’s classification plaintiffs policy it, to all wrong either as to all members of the class put “right Appeal class,” we would that burden. effectively members reverse Ramirez a nor authority logic no for such does requirement, predominance it. require sum, realizing
In defendant’s reliance on is misplaced. Perhaps Ramirez this, that even But the the Court did not case or cite it. of Appeal rely its astray ways. Although summary Court of went in other Appeal accurate, the Court of evidence submitted on certification was generally erred to extent it in of that evidence. any reweighing engaged Appeal variations, store the Court After defendant’s evidence reviewing respecting noted of defendant’s uniform evidence Appeal plaintiffs’ policies standardization, and OM’s their relating declarations from AM’s plaintiffs’ did, and actually of what defendant’s those positions experience employees both defendant and also by evidence submitted interrogatory Thereafter, the court class members. actual tasks performed respecting conclu- were “not determinative” and “not declarations opined evidence, defend- because defendant’s the declaration of sive” particular Adams, Brad the work of all manager ant’s human resources “showed a court is not and OM’s is not uniform or identical.” But reviewing AM’s it the record order because finds merely authorized overturn certification *18 conclusive. The relevant of less than determinative or evidence predominance substantial. is on review is whether such evidence question that Court of also erred to extent it stated implied The Appeal that class of for certification mandates requirement interest community uniform or identical. Plaintiffs’ does not theory depend members’ claims be claims, nor the law of class certifica- class members identical does having on 4 Cal.3d (Vasquez, supra, community such. at 809 p. tion require [“a an identical recovery”].) does not upon interest depend Superior San Jose v. City cited erroneously Court of Finally, Appeal (San 797, Jose) in 12 447 525 P.2d Court (1974) Cal.3d Cal.Rptr. 701] [115
339 trial courts must class certification each suggesting “deny when member’s San right to recover on facts individual to the In member’s case.” depends Jose, the trial court had certified a class of owners claims property pressing reversed, a against We at one municipal airport. remarking point rule “that general a class action cannot be maintained where each member’s to recover on facts . right to his case . . remains viable in depends peculiar (Id. this state.” But reading this extract out of context p. categorical which, would misstate the established standard for as legal commonality, noted, fact, San Jose was, Our in in previously holding comparative.10 Jose, San supra, (see expressly comparative 460 “the issues p. [comparing which be may tried” with “those jointly requiring separate adjudication”]), and we Washington have adhered consistently (see, to that e.g., approach Mutual, Jose, supra, 913-914, San supra, 24 Cal.4th at pp. quoting 460). at p. Courts to seeking and other preserve efficiency benefits of class actions 11
routinely fashion methods
to
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manage
For decades
questions.
Jose,
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court has
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courts to be
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America,
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Land,
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Occidental
815],
198
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Considerations of public policy . . directed at section confirms “a clear . that is public policy specifically for the the enforcement of California’s minimum and laws wage Court (Earley Superior v. benefit of workers.” Cal.App.4th us, 57].) As own reminds authority 1429-1430 are and be as to California’s overtime laws remedial are to construed so (Ramirez, supra, And, 794.) at as p. 20 Cal.4th employee promote protection. “this state a which the use recognized, encourages we have has public policy Industries, Inc., (Richmond v. Dart the class device.” action “ the 473.) many Cal.3d at a claims ‘By establishing technique whereby p. time, can at both individuals resolved the same the class suit eliminates be a small claimants with litigation possibility repetitious provides method of redress for claims which would otherwise be too small obtaining ” (Id. 469.) at to warrant individual litigation.’ p. to most contested in this likely dispute, issues
Many vigorously noted, treatment, ones. each individual as common Absent plaintiff the same or essentially would present duplicative proceedings separate, evidence, The would including testimony. same result arguments expert to both the judicial be a of trials conducted enormous multiplicity expense nor anyone, and the “It be neither efficient fair to would system litigants. defendants, to force trials to hear the same evidence including multiple v. Divested Atomic (Boggs Corp. (S.D.Ohio 1991) decide the same issues.” 58, 67.)13 141 F.R.D.
Disposition reasons, we For the reverse the Court of judgment Appeal. foregoing J., J., Chin, Moreno, 1, Kennard, J., Baxter, J., concurred. C. George, Rosack America (See Volvo of manage conducting particular may class action choose to it. Corp., supra, Cal.App.3d “13 differ, if class underlying class claims ‘If the factual circumstances members’ through techniques disagree liability, judge, use of proper theory to the trial members intervention, into the subclassing judicial] may the class differences incorporate like [other outcome deciding proper all class their due in what litigative process, give members ” Industries, Inc., (Richmond quoting Dart Cal.3d at litigation.’ 1318, 1490-1492.) Developments—Class Actions Harv. L.Rev.
341 BROWN, J., Concurring. that the trial I agree court did not abuse its discretion in that the concluding common issues and in predominate certify- this action for ing of a recovery class action. Because I unpaid clear, find the however, majority’s less than I reasoning write separately own explain my reasons for reaching this conclusion.
“Because trial courts are situated ideally to evaluate the efficiencies and action, practicalities permitting group afforded discretion in they great (Linder v. Thrifty Oil Co. granting certification.” denying (2000) 23 Cal.4th 429, 179, 435 such, 2 27].) P.3d Cal.Rptr.2d As we [97 will not generally disturb a trial court’s on class ruling (1) certification unless: is not ruling evidence; substantial supported by (2) used”; criteria were (3) “improper Industries, (Richmond v. Dart Inc. “erroneous legal were made.” assumptions (1981) 462, (Richmond).) 515, 29 Cal.3d P.2d Cal.Rptr. [174 23] certification,
To obtain class establish, a must party other a among things, (Richmond, “well-defined community interest the class among members.” 29 Cal.3d A well-defined community interest exists if (Ibid.) Common common of law and fact questions predominate. issues may even predominate if “each member of the class must his prove claim separate to a (Vasquez Superior Court portion any recovery by class . . . .” 800, (1971) 4 796, Cal.3d (Vasquez).) 484 P.2d Cal.Rptr. But [94 “each member must not be required to individually litigate numerous substantial questions determine his to recover right the class following judgment; tried, issues which may jointly when with compared those requiring separate adjudication, must be sufficiently numerous and substantial to make the class action to the advantageous judicial process to the litigants.” (City San Jose v. Superior Court 701].) 525 P.2d
“In order to determine whether common fact questions [law and] predominate trial court must examine the issues framed by pleadings (Hicks and the law & to the causes of applicable action alleged.” Kaufman Broad Home Corp. 89 Cal.App.4th 761].) I therefore begin my analysis by the issues and determining the law. reviewing
In their complaint, Robert Rocher and Connie Dahlin alleged Stores, Inc., defendant Sav-on Drug misclassified its assistant managers (AM’s) and operating managers (OM’s) as from the overtime wage result, laws. As a defendant improperly and other compensated plaintiffs situated similarly AM’s and OM’s as salaried managers failed to pay them overtime Plaintiffs compensation. sought certify as class “all current and former salaried and current and former salaried [OM’s] [AM’s] ... time employed California at between April *21 Thus, framed 22, 2001, by the issue primary inclusive.” and June from the are exempt AM’s and OM’s is whether pleadings overtime statutory provisions. and are exempt employ AM’s OM’s whether defendant’s
The question “is, legal categories, the involving application ees like other questions Water Co. (1999) 20 (Ramirez v. Yosemite of law and fact.” mixed question (Ramirez).) In determining P.2d Cal.4th 794 [85 the realistic must “into the trial court inquire is exempt, whether an employee consider, first and should the court doing, In so job. requirements trial But the his or her time. foremost, actually the employee spends how from the diverges the practice whether employee’s also consider court should concrete expression whether there was realistic expectations, employer’s an substandard performance, over employee’s displeasure employer the actual overall given themselves realistic were whether these expressions (Id. at 802.) statutory from “[Ejxemptions of the job.” p. requirements (Id. construed.” are narrowly overtime mandatory provisions laws is consid “Moreover, from the overtime of an the assertion exemption defense, bears the burden the and therefore employer an affirmative ered to be (Id. at pp. 794-795.) exemption.” proving employee’s mind, on to the presented I now turn question With this framework the trial court’s to evidence support there is substantial whether appeal; carefully After fact of law and predominate. that the common issues finding law, I conclude of the relevant record in light the evidence in the reviewing finding. the trial court’s to support evidence that there is substantial misclassi- matter, intentionally defendant the issue of whether As an initial the AM common to both is an issue employees fied its managers not, itself, the trial to support sufficient by This issue is and OM classes. would because plaintiffs the common issues predominate, finding court’s to the class damages subsequent both liability still have to prove Court, Superior San Jose v. City (See judgment. where, action be justified would a class situation extraordinary in an [“Only to indi- would be required the members the class judgment, to subsequent the existence of this But also liability”].) but damages not only vidually prove finding. the trial court’s certainly common issue supports needed additional evidence the record then provides A review of class, the AM respect With finding. trial court’s substantiate consti- submitted by plaintiffs and OM’s AM’s from individual declarations According that the common issues predominate. evidence tute substantial hours work over 40 declarants, AM’s to consistently required these that, on based OM further averred manager general A former a week. their defendant, at different years stores owned and experience operated by of work type performed does not store. vary by “[t]he Each [AM’s] Sav-on manner, store was and is in the same operated the same require[s] work, essential Therefore, as one in a might chain of retail stores. expect actual work on a performed by basis was identical daily virtually [AM’s] stores, Sav-on and remains so.” These declarations substantial provide evi- dence that the realistic of the AM requirements identical for all AM’s job AM’s, and that average, same amount of time spend on the same types all of tasks. Defendant’s subsequent decision to independent reclassify AM’s as entitled to nonexempt employees bolsters compensation *22 this conclusion. the Accordingly, trial court did not abuse its discretion in that the finding common issues with predominate to the AM respect class. not, The however, same reasoning does to the OM apply class. While submitted plaintiffs multiple declarations to the attesting work and duties of AM’s, they submitted no declarations to the attesting work and duties of Indeed, OM’s. the only evidence in the record that all demonstrating OM’s the same spend amount of time the same of performing tasks comes types from the special of interrogatory responses Rocher. But these statements are not sufficient to the trial support court’s as to the findings OM class. Rocher merely states that he—and no other over 50 of his time OM—spent percent activities. And nonexempt although Rocher asserts that has “[defendant an expressed policy practice to . . . requiring spend majority [OM’s] of their tasks,” time performing he nonexempt no provides foundation or evidentiary such, for this assertion. support As his interrogatory responses too qualified conclusory the trial support court’s that finding plaintiffs will be able to establish defendant’s for liability compensation the OM’s by common evidence. (See Lockheed Martin Corp. Superior Court Cal.4th 63 P.3d (plur. opn. Werdegar, J.) that [holding the evidence is “too tentative qualified, to constitute conclusionary substantial evidence” in of class support Martin, see also Lockheed certification]; (conc. Brown, J.).) opn. Nonetheless, a careful review of the record reveals substantial evidence to Ramirez, the trial support court’s finding with to the OM class. In respect we suggested that the classification of tasks as exempt nonexempt may Ramirez, supra, 20 Cal.4th at p. to common susceptible (See proof. fn. where, This to be true in appears especially this case as demonstrated evidence, by defendant’s own the OM’s a finite number of on a perform tasks regular basis. The record further indicates that and defendant disagree over the classification of the many of tasks regularly performed by the trial of the tasks in dispute, OM’s.1 Given the number and significance tasks, the classification these court could conclude that reasonably proper the will parties, with the agreed upon when combined classifications classified as of whether all OM’s should be resolve the issue largely that, the according variables Finally, many or nonexempt employees.2 defendant, for treatment—like store type, render the OM’s class inappropriate size, for number form the basis store and the of store employees—may The could conclude that reasonably trial court subclasses. appropriate the need individual sufficiently reduce creation these subclasses would Vasquez, (See class. as to each member of the litigation of a efficiency that creation of subclasses [noting may promote did its the trial court not abuse action].) Accordingly, I find and OM’s and join majority discretion class of AM’s certifying of the Court of reversing Appeal. judgment *23 the difficult due to Defining disagreement is somewhat precise the contours of their But, at a regularly performed tasks OM’s. vagueness descriptions parties’ minimum, classified disagree following tasks should be appear over whether parties unloading/movement inventory, customer nonexempt: merchandising, activities, service, opening/closing store. handling, cash finance-related as well. reasoning applies to the AM class The same order notes And the trial court’s signed expressly the court.” based on “all admissible evidence.” deciding criterion for legal court the proper the trial Finally, applied class, had a “by that established stating a certify whether action is superior the evidence that the class proceeding preponderance (Cf. adjudication litigation.” a fair and efficient alternate means for Mutual, treatment must 24 Cal.4th at Washington [class the litigants”].) both to the courts and substantial benefits “provide be may that class certification appropriate Defendant does not dispute case, case. in this whether it is only appropriate in an overtime exemption a multitude into likely “degenerate this class action is Defendant suggests noted, As mini-trials,” but, is substantial. contrary the evidence to as whether claim to unpaid depends each class member’s alleged, in a position the relevant during period worked for defendant he or she basis) circumstantially (on a class deliberately either was misclassified and practices). class-wide policies of defendant’s (again, consequence does at some point required individual damages may That calculation of misclassifica evidence on the common taking not foreclose possibility Rocha, [“only (Collins tion questions.