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explaining that the presumption did not apply because "a statement in a concurring opinion is not binding precedent"
Summary of this case from Cole v. CRST Van Expedited, Inc.Opinion
D072271
07-18-2018
OCTAVIO TORRES, Plaintiff and Appellant, v. GOODWILL INDUSTRIES OF SAN DIEGO COUNTY, Defendant and Respondent.
Rastegar Law Group, Farzad Rastegar and Douglas W. Perlman for Plaintiff and Appellant. Manning & Kass, Ellrod, Ramirez, Trester, Alfred M. De La Cruz and Ladell Hulet Muhlestein for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2015-00040369-CU-OE-CTL) Appeal from an order of the Superior Court of San Diego County, John S. Meyer, Judge. Affirmed. Rastegar Law Group, Farzad Rastegar and Douglas W. Perlman for Plaintiff and Appellant. Manning & Kass, Ellrod, Ramirez, Trester, Alfred M. De La Cruz and Ladell Hulet Muhlestein for Defendant and Respondent.
INTRODUCTION
This appeal arises from a putative class action filed by Octavio Torres against his former employer, Goodwill Industries of San Diego County (Goodwill), alleging it failed to provide truck drivers and helpers with off-duty meal periods and rest breaks and asserting related wage and hour claims. Torres appeals from the trial court's denial of his motion for class certification without prejudice and his motion for leave to file a second amended complaint to amend the class definition and add a new representative.
We conclude we have jurisdiction to review the trial court's rulings. We further conclude the court did not abuse its discretion in denying class certification or in denying leave to amend. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Torres's Employment and Complaint
Torres was a truck driver for Goodwill from June 2014 to February 2015, until Goodwill terminated his employment.
In December 2015, Torres filed a class action against Goodwill. The operative first amended complaint alleges Goodwill failed to provide off-duty meal and rest breaks and violated related wage and hour requirements, including failing to provide an hour of pay for missed breaks. Torres identified the plaintiffs as "current and former non-exempt employees of DEFENDANT, who worked for DEFENDANT in the State of California, County of San Diego, as Truck Drivers and Truck Helpers for a period of time within the four (4) years preceding the filing of this action." For ease of reference, we refer to all putative class members as "drivers," unless noted.
II. Motion for Class Certification
In September 2016, Torres moved for class certification. His primary claim was that "Goodwill exercises a degree of control . . . which is inconsistent with an off-duty meal period," and there were no on-duty meal period agreements. Torres also claimed route schedules often prevented timely meal and rest breaks (or prevented breaks at all), and Goodwill failed to make premium payments.
The employee handbook provided:
"You are given a ten-minute break period for every four (4) hours you work. Breaks are usually taken in or near the middle of the four-hour period. . . . [¶] If you work more than five hours you will receive an unpaid half-hour (30 minutes) meal break. You must take your meal break, even if you choose NOT to eat."The truck driver and truck helper manual stated:
"For every 8 hour shift, you are allotted (2) ten minute breaks and (1) 30 minute meal period. We ask that you make every attempt to take your first break approximately 2 hours into your shift, your meal period between 11:00 am and 1:00 pm and your final break approximately 2 hours before the end of your shift. [¶] . . . [¶] If you choose to take your break or meal while out on the road, you may not deviate from your assigned route. Where you cho[o]se to take your break/lunch must be on the way to your next stop. Trucks are not to pull into small parking lots, or drive thru's that do not have the correct truck access/clearance. In addition, you are not to park the truck in front of establishments such as bars and liquor stores."A separate section of the manual addressed security:
"Never leave any company vehicle unattended unless the vehicle is completely secured. . . . [¶] Be alert to anyone loitering in or around your assigned company vehicle. Even if the vehicle is secured, do not leave if there are suspicious people loitering around it."
Torres produced declarations from himself and other drivers. They stated they were instructed they could not leave the route. They were also instructed they had to stay with or in sight of the truck, and were responsible for its security. These instructions were given during training by supervisors and/or by dispatchers, and the drivers identified a number of supervisors (including Transportation Director Mia Reed, Transportation Manager John Blanco, and Transportation Supervisors Chris Sweet and Marcel McCoy) and dispatchers. They also indicated that on many occasions, they could not take timely or full breaks due to being behind schedule, they did not receive an extra hour of pay (with a few exceptions), and some complained, but observed no changes. Torres cited testimony from Blanco's deposition that if he was driving, he would not be out of sight of his truck and would return and move it if suspicious people were around.
Torres's declaration also addressed his termination. He was informed the policies he violated were leaving his route and parking outside his home (which he was told was a security violation), and he was also fired for recording a half-hour lunch break while taking more than that.
The termination recommendation form stated, in part: "Part of all Truck Driver's Essential Functions of their job is to safeguard company property, including donated goods. By deviating from his assigned route and bringing the truck loaded with merchandise to his residence, this is not only a procedural violation, but one of security and asset protection."
Finally, Torres provided an expert analysis from Aaron Woolfson. He analyzed timekeeping records for 13 employees and found, among other things, that for 2,514 of 4,375 shifts (i.e., 57.5 percent) "a meal was indicated as (a) not happening within the first 5 hours; (b) less than 30 minutes or (c) not indicated in time keeping . . . ." He found 76 meal period premiums in the payroll records (i.e., 3 percent of 2,514).
Goodwill opposed the motion. It provided deposition testimony or a declaration from Blanco, Reed, and Human Resources Director Fabia Parkinson regarding its operations and policies. It used 34 routes between multiple locations, which were designed and adjusted daily to be completed within eight hours. It did not want drivers to deviate from their routes unreasonably, but they may leave the truck and arrange a ride, walk, or use a personal vehicle. It did not require drivers to be responsible for truck security, or address a physical threat to it, during meal periods. Drivers are given a two hour window to take their meal, between the third and fifth hour. Goodwill used a reporting system for breaks and later moved to an automatic system. It had a policy of making premium payments when due.
Before the trucks had phones, drivers were trained to notify supervisors when they missed or had late meal or rest breaks. Drivers also were to note breaks in daily trip sheets and on the navigation system. Supervisors periodically audited records, and if the records or a driver indicated a break was not taken timely (or at all), they would investigate and the premium was to be paid. Phones were on the trucks by mid-2014, and drivers clocked in and out for meals. Drivers were still trained to report missed meal or rest breaks, and supervisors continued to audit. In December 2015, Goodwill began automatic payment of meal premiums, with a supervisor investigating why the meal was missed.
Goodwill also produced declarations from supervisors (including Sweet and McCoy) and drivers. The supervisors indicated they never instructed drivers they could not leave the truck, had to be able to see it, or were responsible for its security. The drivers said they could go where they wanted, and were not told they were required to stay with or in view of their trucks. They also said it was rare they could not take their meal and rest breaks, and when they were not able to take lunch on time or at all, Goodwill paid an extra hour.
The trial court heard the motion for class certification in October 2016. The court stated, "I am not going to certify the class at this point. You can try again." At the end of the hearing, the following exchange occurred:
"[PLAINTIFF'S COUNSEL]: [O]ne other question, your Honor. The Court stated you can try again.
"THE COURT: I don't know. You might—I don't know. You might get another class representative or representatives.
"[PLAINTIFF'S COUNSEL]: So the —
"THE COURT: And maybe redefine the class; I don't know.
"[PLAINTIFF'S COUNSEL]: So the order of the Court is without prejudice?
"THE COURT: Yes. Okay. [¶] . . . [¶]
"THE COURT: This is without prejudice. If you want to try to redefine the class or get a new representative or representatives, that might be fine."
The trial court denied the motion without prejudice. After setting forth the legal standards on class certification, the court concluded common questions did not predominate. The court first discussed the written policies:
"Based on the policies and guidelines identified in the Employee Handbook and the Training Manual for Truck Drivers . . . [they] may take their meal period any time between the recommended time period of between 11:00 a.m. and 1:00 p.m. . . . [¶] If the employees decide to take a meal period while on the road, they are not allowed [to] deviate from the assigned route. In other words, they are not allowed to drive defendant's truck off-route. [¶] Prohibiting employees from parking a truck in front of a bar or liquor store does not limit the employees from entering those types of establishments, as suggested by plaintiff. [¶] There is nothing in the
policies that require Truck Drivers . . . to remain within sight of their trucks while on their meal period. . . . The rule that states not to leave a secured truck if there are suspicious people loitering around does not prevent the employee from securing the truck at a different location, or taking a meal period at a different time. [¶] Accordingly, the policies and guidelines challenged by plaintiff do not restrict the employees' meal periods to the point that they continue to be on-duty during their meal periods."
The court addressed the two-step analysis in Madera Police Officers Assn. v. City of Madera (1984) 36 Cal.3d 403, 408, 409 (Madera) (adopting two-step analysis, based on whether "restrictions . . . are primarily directed toward the fulfillment of the employer's requirements and policies" and "off-duty time is so substantially restricted" as to prevent private pursuits). The court found: "The restrictions . . . concern the security of defendant's trucks and use of fuel. Defendant does not want the trucks driven off the assigned routes . . . ." "The security restrictions pertaining to the trucks do not place substantial limitations on the employees' meal period time."
The court explained that "[t]he difference between the written policies and plaintiff's allegations comes into play by way of interpretation or understanding of the written policies by the employees," and contrasted the declarations provided by the parties with respect to the alleged restrictions. The court also addressed Torres's theory that the routes did not allow time for breaks, and again contrasted the declarations (explaining Torres's declarations stated that "on occasion," employees could not take timely or full breaks, and were not compensated, and Goodwill's declarations "essentially state the opposite . . . ."). The court concluded individual issues predominated:
"There do not appear to be predominant common questions of law or fact for the putative Class. Based on the evidence presented, only a handful of employees claim that defendant violated the Labor Code as applied to
them. There are common policies, procedures and guidelines, but the claims asserted by plaintiff are "as applied" to individuals or as understood by individual employees, and why those individuals have that understanding. Individual facts would predominate."
The trial court also determined Torres could not adequately represent the class. It explained: "Not only did plaintiff violate the policies and guidelines that are the subject of this litigation, the termination documents call[] into question plaintiff's honesty and integrity, which could reflect on plaintiff's credibility and would not serve the best interests of the putative Class."
III. Motion for Leave to File Second Amended Complaint
In March 2017, Torres moved for leave to file a second amended complaint. He proposed adding the following language to the definition of plaintiffs: "who were subjected to the illegal policies, procedures, and practices set forth herein, including being denied compliant meal periods and rest breaks, accurate pay statements, and timely payment of all wages due." He also sought to add another class representative. Goodwill opposed the motion.
In May 2017, the trial court heard and denied the motion. The court addressed the legal standards for motions to permit amendment. It determined that the modified class definition did "not change the fact that individual questions continue to predominate," explaining:
"[P]laintiff is not alleging the written uniform policies and guidelines violate the wage and hour laws. [¶] Instead, plaintiff claims that the uniform policies are not being applied consistently to all Class Members. . . . [T]he putative Class Members stated in declarations that they were given oral instructions about policies not contained within the written uniform policies, such as not being permitted to leave the route
for meal periods and being instructed to keep the truck within sight at all times while on meal periods. The oral instructions were purportedly given by different supervisors or by the dispatcher at various times [during the class period]."The court concluded: "[A]n alleged practice to orally convey policies that are inconsistent with the written uniform policies and guidelines 'creates a shifting kaleidoscope of liability determinations that render this case unsuitable for class action treatment.' Individual facts would predominate." (Quoting Koval v. Pacific Bell Telephone Co. (2014) 232 Cal.App.4th 1050, 1062 (Koval).)
In June 2017, Torres filed a Notice of Appeal from the October 2016 order denying his motion for class certification and from the May 2017 order denying his motion for leave to file a second amended complaint.
We requested letter briefs from the parties addressing the timeliness of the order denying class certification, and the appealability of the order denying leave to amend, which the parties provided. We allowed the appeal to proceed and asked the parties to address appealability in their briefing on the merits.
DISCUSSION
I. Appealability
We begin by addressing whether the court's rulings on class certification and leave to amend are appealable. Based on the record before us, we conclude the order denying leave to amend is appealable, and both rulings are reviewable from it.
A. Applicable law
"The existence of an appealable judgment is a jurisdictional prerequisite to an appeal." (Doran v. Magan (1999) 76 Cal.App.4th 1287, 1292.) "California is governed by the 'one final judgment' rule which provides 'interlocutory or interim orders are not appealable, but are only "reviewable on appeal" from the final judgment.' " (Ibid.)
"The death knell doctrine, a judicially created exception to the one final judgment rule, treats an order that dismisses class claims while allowing individual claims to survive as an appealable order." (Cortez v. Doty Bros. Equipment Company (2017) 15 Cal.App.5th 1, 8, citing In re Baycol Cases I & II (2011) 51 Cal.4th 751, 757 (Baycol); see Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 698-699 (Daar) [order sustaining demurrer that precluded class claims from proceeding was appealable]; Baycol, at p. 757 [discussing Daar; "[b]ecause the order effectively rang the death knell for the class claims, we treated it as in essence a final judgment on those claims, which was appealable immediately"].) "The denial of certification to an entire class is an appealable order." (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.)
An "order[] denying leave to amend a complaint . . . although ordinarily not appealable, [is] appealable where the order[] 'ha[s] the effect of eliminating issues between a plaintiff and defendant so that nothing is left to be determined . . . .' " (Randle v. City and County of San Francisco (1986) 186 Cal.App.3d 449, 454 (Randle).)
B. Analysis
Although the trial court denied the motion for class certification based on lack of commonality and adequacy, its statements (including that Torres could try again and suggesting ways he might do so) reflect the order was not a death knell for the class claims. Torres proceeded to file a motion for leave to amend, to modify the class definition and add a new representative. The court denied the motion after concluding individual issues would still predominate, and did not reach the adequacy of the new representative, effectively ending Torres's efforts to proceed on behalf of a class. This order was "in essence a final judgment" on the class claims and therefore appealable. (Baycol, supra, 51 Cal.4th at p. 757; see Randle, supra, 186 Cal.App.3d at p. 454 [order denying leave to amend is appealable when it has the " 'effect of eliminating issues between a plaintiff and defendant' "].) Further, the order denying leave to amend took judicial notice of the earlier class certification ruling and effectively encompassed it. We conclude we have jurisdiction to review both rulings.
Torres cites Aleman v. Airtouch Cellular (2012) 209 Cal.App.4th 556, which dismissed an appeal from a denial of class certification without prejudice, reasoning that "the remaining plaintiffs are free to move for class certification again." (Id. at p. 586.) Given the trial court's statements here, we need not address Aleman and whether denial without prejudice, alone, makes a certification order nonappealable. (Compare Guenter v. Lomas & Nettleton Co. (1983) 140 Cal.App.3d 460, 465-466 [dismissing appeal from second motion for class certification, where earlier order without prejudice was on the merits].) We note that, as a general matter, orders entered without prejudice remain appealable. (See Kurwa v. Kislinger (2013) 57 Cal.4th 1097, 1104.)
Goodwill's arguments for dismissal of the appeal are not persuasive. First, it argues an appeal from the order denying class certification is untimely. But the appeal from the order denying leave to amend is timely, and as discussed ante, it encompasses the earlier ruling.
Next, Goodwill argues the order denying leave to amend is not appealable, citing Figueroa v. Northridge Hospital Medical Center (2005) 134 Cal.App.4th 10. Figueroa is distinguishable. The plaintiff there was seeking to add class claims, not proceed with existing claims. (Id. at pp. 12-13 ["There was no prevention of further class proceedings in this case. . . . There can be no 'death knell' for a class action that, in this case, never existed."]; see Safaie v. Jacuzzi Whirlpool Bath, Inc. (2011) 192 Cal.App.4th 1160, 1168-1169 (Safaie) [order denying motion to recertify class after appellate decision affirming decertification was not appealable, citing Figueroa].) Torres asserted class claims and the court indicated he could try again—meaning the case was still a putative class action when he sought leave to amend. Further, the trial court in Figueora "made no factual findings regarding a 'community of interest.' " (Figueroa, at p. 13.) Here, the court found "individual questions continue to predominate."
Finally, Goodwill contends the order denying leave was (i) a ruling that amendment would be futile, not a denial of certification; or (ii) if it was a ruling on certification, it would have to be without prejudice because Torres would be free to move for certification again. We are not persuaded. The court denied leave to amend based on a certification issue (i.e., individual facts would predominate). In substance, if not form, this was an order denying class certification and precluded any further opportunity to bring a successful class certification motion. (Prince v. CLS Transportation, Inc. (2004) 118 Cal.App.4th 1320, 1322, fn. 2 ["Whatever its form, an order that has the effect of denying certification as a class action . . . is an appealable final judgment."].)
Goodwill also suggests Torres could have refrained from getting the initial ruling without prejudice or sought review by writ. But the court said he could "try again," and there was no certainty he could obtain writ review. We recognize a plaintiff normally only has one chance to seek certification. (Stephen v. Enterprise Rent-A-Car (1991) 235 Cal.App.3d 806, 817 ["California does not . . . allow relitigation of whether to certify a class once a death-knell order . . . has become final."].) But there may be equitable exceptions (Safaie, supra, 192 Cal.App.4th at pp. 1170-1171), and here the trial court issued its initial ruling before giving Torres an opportunity to address its concerns. We cannot conclude it was inappropriate for him to try again, under the circumstances. (See Stephen, at p. 814 ["[T]rial courts should avoid ruling on the merits until satisfied that a plaintiff has had a fair opportunity to present the case for certification."].)
II. Denial of Class Certification
Torres contends the trial court abused its discretion in ruling that common issues do not predominate and also erred in concluding he was an inadequate representative. We disagree.
A. Applicable law and standard of review
"State law obligates employers to afford their nonexempt employees meal periods and rest periods during the workday. . . . Employers who violate these requirements must pay premium wages." (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1018 (Brinker).) An employer satisfies its obligation to provide meal breaks "if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so." (Id. at p. 1040.) In addition, Labor Code section 512 requires a meal period be provided "no later than the end of an employee's fifth hour of work." (Brinker at p. 1041.) "[T]he employer is not obligated to police meal breaks and ensure no work thereafter is performed." (Id. at p. 1040; see Lampe v. Queen Of The Valley Medical Center (2018) 19 Cal.App.5th 832, 851 (Lampe) ["A missed meal break does not constitute a violation if the employee waived the meal break, or otherwise voluntarily shortened or postponed it."].)
"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. [Citations.] 'In turn, the "community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class." ' " (Brinker, supra, 53 Cal.4th at p. 1021.)
"On review of a class certification order, an appellate court's inquiry is narrowly circumscribed. 'The decision to certify a class rests squarely within the discretion of the trial court, and we afford that decision great deference on appeal, reversing only for a manifest abuse of discretion: "Because trial courts are ideally situated to evaluate the efficiencies and practicalities of permitting group action, they are afforded great discretion in granting or denying certification." [Citation.] A certification order generally will not be disturbed unless (1) it is unsupported by substantial evidence, (2) it rests on improper criteria, or (3) it rests on erroneous legal assumptions.' " (Brinker, supra, 53 Cal.4th at p. 1022.)
B. Predominance of common issues
Torres argues the trial court disregarded his evidence in finding common issues do not predominate, and erred in other respects. We reject these contentions.
1. Applicable law and standard of review
"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." (Brinker, supra, 53 Cal.4th at pp. 1021-1022, fn. omitted; Koval, supra, 232 Cal.App.4th at p. 1059 [" 'a uniform policy consistently applied' " can support certification], quoting Brinker, at p. 1033, italics omitted.)
"Predominance is a factual question; accordingly, the trial court's finding that common issues predominate generally is reviewed for substantial evidence." (Brinker, supra, 53 Cal.4th at p. 1022.) We examine whether a "ruling is supported by substantial evidence, and if it is, we may not substitute our own judgment for that of the trial court." (Dailey v. Sears, Roebuck & Co. (2013) 214 Cal.App.4th 974, 988 (Dailey).)
Torres appears to misconstrue this standard. Although he argues there is no support for the court's finding on predominance, he focuses on the evidence that supports his position—and offers little discussion of Goodwill's evidence at all. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [appellant arguing a lack of substantial evidence is "required to set forth in their brief all the material evidence on the point and not merely their own evidence. Unless this is done the error is deemed to be waived"].) In any event, we have reviewed the record and are satisfied it contains substantial evidence to support the court's predominance finding.
2. Alleged policies restricting meal periods and rest breaks
Torres's primary theory of recovery was that Goodwill's restrictions were inconsistent with its obligation to provide off-duty breaks. The trial court determined there did not "appear to be predominant common questions . . . ." Specifically, the court found Goodwill's written policies did "not restrict the employees' meal periods to the point that they continue to be on-duty during their meal periods," the difference between those policies and Torres's allegations was due to differing communications or interpretations, and individual facts would predominate. These findings are supported by the record.
First, Torres relied on rules in the training manual, including not leaving the route, not leaving the truck if there were suspicious people around, and not parking in front of certain places. These rules leave drivers free to walk or take other transportation off the route, to secure the truck elsewhere if there is suspicious activity, and to park it near any establishment they choose (if not in front). Goodwill management confirmed drivers could take other transportation off route. Torres's contention that these restrictions prevented drivers from leaving the route or visiting particular places is not based on the manual, but on what he and other drivers purportedly were told or understood (or little evidence at all). For example, Torres "was instructed that [he] was not permitted to leave [his] route for meal periods," and others received similar instructions. Torres "was also instructed on various locations where [they] were not permitted to park for meal periods." Another driver was instructed they could not park in "high-traffic shopping centers." None addressed suspicious persons. In the declarations provided by Goodwill, supervisors denied instructing drivers they could not leave the route, and drivers indicated they could go where they wanted.
That some drivers were instructed to stay on their routes or avoid parking in certain places, and others were not, does not establish Goodwill had a uniform policy or practice of preventing drivers from taking off-duty meal breaks that was consistently applied to the putative class. (See Koval, supra, 232 Cal.App.4th at p. 1062 [company had "written policies that are uniform, in the sense that they are in writing," but supervisors conveyed them orally, "result[ing] in diverse practices and differing interpretations," and "[i]n this sense, the policies are far from uniform"]; Morgan v. Wet Seal, Inc. (2012) 210 Cal.App.4th 1341, 1347-1348, 1350, 1356 [plaintiffs sought class certification for failure to reimburse required purchase of company clothing; written policies stated employees were not required to wear company clothing, so they relied on what managers told them, raising individualized inquiries].)
Second, Torres also contended there was an unwritten policy to remain with, or within sight of, the truck, and that drivers were responsible for the security of the trucks. Torres acknowledges these were not written requirements, and Goodwill provided evidence from management that drivers were not required to stay with the truck or address threats to it during meal periods. Torres relies on declarations from himself and others stating they were subject to the alleged rules, and on the events and documentation surrounding his termination. Goodwill provided declarations from supervisors who did not instruct drivers on these rules, and drivers who were not told they had to stay within or in sight of their trucks. Far from evidencing a consistently applied, uniform policy to stay with the truck and ensure truck security, this evidence raises individualized questions about how Goodwill's policy on these matters was communicated to each supervisor or dispatcher, what each supervisor or dispatcher told each driver, and what each driver understood.
Torres's arguments lack merit. First, he contends the court improperly reached the merits, referencing its discussion of Madera and finding that Goodwill's restrictions did not result in substantial limitations. We disagree. "When evidence or legal issues germane to the certification question bear as well on aspects of the merits, a court may properly evaluate them." (Brinker, supra, 53 Cal.4th at p. 1023.) Torres alleged Goodwill imposed sufficient control to be inconsistent with off-duty breaks. The court properly considered this theory, and applicable law, in analyzing commonality. Its determination that the restrictions did not result in substantial limitations was pertinent to its finding that "[t]he difference between the written policies and plaintiff's allegations comes into play by way of interpretation or understanding of the written policies by the employees"—and its conclusion that individual issues would predominate.
Torres also contends the court found the restrictions "reasonable," instead of focusing on control. We see nothing in the order to support this assertion.
Second, he disputes the trial court's finding that his allegations involved driver interpretation, contending none of the drivers addressed interpretation and he relied on specific instructions that could not be misinterpreted. But Goodwill provided declarations from supervisors who did not provide such instructions (including supervisors identified by Torres's declarants as doing so), and from drivers who did not receive them. Considered together, this evidence reflects drivers were receiving differing instructions, interpreting those instructions differently, or both. Torres makes a related contention that the court assumed a policy had to be in writing. The issue was not that the alleged policies were unwritten, but that Torres's theories of liability gave rise to individualized issues, including how each driver interpreted supervisor or dispatcher instructions. (See Koval, supra, 232 Cal.App.4th at p. 1062.)
Finally, Torres relies on Madera and other cases where courts found sufficient restrictions to deprive employees of breaks or render them on-duty. (See, e.g., Madera, supra, 36 Cal.3d at pp. 409, 412 [there were "substantial limitations" on meal periods of officers, sergeants and dispatchers, including being on call]; Morillion v. Royal Packing Co. (2000) 22 Cal.4th 579, 586 [agricultural workers had to take bus to field, precluding them from "effectively using their travel time for their own purposes"]; Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833, 841-842, 849 [on-call time of employees who resided on site was compensable].) The trial court did not err to the extent it reached the merits in analyzing commonality, as discussed ante, but the merits are not actually before us. Torres does not establish these cases support class treatment.
Torres makes additional points regarding the unwritten security policy, and they also lack merit. First, he cites Blanco's testimony that he would move the truck in the presence of suspicious people, arguing it is consistent with the alleged policy. Blanco was speaking about himself and did not testify he instructed drivers to take such actions. Second, he argues his termination documentation reflects "no explanation" why parking the truck at home would endanger it, the "most reasonable explanation" is that by going home he left the vehicle outside and unattended, and a trier of fact could find Goodwill required drivers to remain with their vehicles. His speculation is not evidence. Meanwhile, supervisor McCoy stated the policy "came about . . . when Goodwill was experiencing theft of donated items . . . when a truck was . . . at employee residences" (and Blanco indicated the security issue was deviation from the route).
3. Alleged failure to provide meal and rest breaks
Torres also alleged that Goodwill failed to provide meal and rest breaks, due to drivers being behind schedule, and failed to make premium payments for these breaks. The trial court found individual facts would predominate, noting Torres's declarations provided that "on occasion," drivers were unable to take timely or full meal periods and rest breaks (and were not compensated for missed meals) and Goodwill's declarations stated the opposite. The record supports the trial court's findings.
Torres suggests the trial court mischaracterizes his evidence by using the term "on occasion," contending his declarants "testified that violations were rampant" and citing the time records. There is no dispute some drivers had late, short, or missed meal periods, and the term "on occasion" was not material to the court's analysis.
Goodwill's training manual provides for compliant meal periods and rest breaks. The declarations submitted by the parties reflect some drivers took timely and full meal periods and rest breaks, and some could not, reflecting variations in whether, when, and for how long they took them. As for the timekeeping analysis, although it shows drivers had late, short, or missed meal periods, it does not reflect whether those events were due to Goodwill's scheduling (as Torres alleges), driver choice, failure to punch out, or some other reason. (See Lampe, supra, 19 Cal.App.5th at p. 851 [although expert analysis showed 11 percent of employees took timely meal breaks, "[t]o determine why each employee did not take their first meal break after five hours would require an individualized determination . . . ."].)
Discussing investigation into missed meal periods, Blanco indicated that a "lot of times [it] is just [that] a driver forgot to punch out."
Torres's arguments are not persuasive. First, he argues that "if the time records indicate missing, late, or short meal periods, there is a rebuttable presumption that the meal periods were not adequately provided," citing Safeway, Inc. v. Superior Court of Los Angeles County (2015) 238 Cal.App.4th 1138 (Safeway). There, the trial court certified an unfair competition law (UCL) claim that Safeway never paid premium wages for missed meal breaks, and the Court of Appeal denied Safeway's writ petition challenging certification. (Id. at pp. 1153, 1162.) The court found support in Justice Werdegar's concurrence in Brinker, which stated in part: If an employer's " 'records show no meal period for a given shift over five hours, a rebuttable presumption arises that the employee was not relieved of duty and no meal period was provided.' " (Safeway at p. 1159, quoting Brinker, supra, 53 Cal.4th at p. 1053, conc. opn. of Werdegar, J.) However, a statement in a concurring opinion is not binding precedent (Turney v. Collins (1941) 48 Cal.App.2d 381, 388), and Safeway is otherwise distinguishable.
Even if the presumption applied, the court would have to consider whether individualized evidence regarding the reason for missed, late, or short meals rendered certification inappropriate. (Brinker, supra, 53 Cal.4th at p. 1054 (conc. opn. of Werdegar, J.) ["[W]hether in a given case affirmative defenses should lead a court to approve or reject certification will hinge on the manageability of any individual issues."].) This was unnecessary in Safeway. (Safeway, supra, 238 Cal.App.4th at p. 1161 [plaintiffs sought "restitution for the class-wide loss of the statutory benefits" under Lab. Code, § 226.7, not premium wages, which did not require "excessive individualized assessments of time punch data or similar inquiries."] Torres has a UCL claim and seeks restitution, but also seeks premium pay in his claim for failure to pay all wages due. Further, the issue here is not whether the record supports certification, as in Safeway, but whether it supports denial of certification. It does.
Second, Torres argues the time records reflect Goodwill made no effort to comply with Brinker's requirements, and notes there is no policy provision specifying meal periods must commence by the end of the fifth hour. We disagree. Goodwill made meal periods and rest breaks available, and was not required to ensure employees actually took them. (Brinker, supra, 53 Cal.4th at p. 1040.) As for the policy language, the manual asked drivers to take meals between 11:00 a.m. and 1:00 p.m., and management indicated they were given a two-hour window between the third and fifth hour. Torres does not argue drivers misunderstood the policy language, or that this language resulted in meals beyond the fifth hour.
Finally, we address Torres's related theory that Goodwill failed to make premium payments for the missed meal breaks and rest periods. Under Labor Code section 226.7, subdivision (c), an employer who fails to provide an employee a legally required meal or rest break must pay the employee an additional hour of compensation. (Brinker, supra, 53 Cal.4th at p. 1040, fn. 19.) This payment is the "legal remedy" for a failure to provide meal and rest breaks. (Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, 1256 (Kirby); see ibid. ["An employer's failure to provide an additional hour of pay does not form part of a section 226.7 violation . . . ."].)
We are not persuaded by Torres's argument that Goodwill does not have a written policy requiring premium pay and that, as in Safeway, there is evidence of a practice not to make them. Safeway is not controlling, for the reasons discussed ante. And, unlike there, Goodwill provided evidence of a policy or practice to make premium payments, even before use of the automatic system. (Compare Safeway, supra, 238 Cal.App.4th at p. 1150 [manager testified "there was no mechanism . . . by which the premium pay related to meal breaks was calculated or determined when due," prior to implementation of automatic payments].) Thus, Torres's claim for failure to provide premium pay is based on Goodwill's alleged failure to provide meal and rest breaks. (Kirby, supra, 53 Cal.4th at pp. 1256-1257.) Substantial evidence supports the trial court's finding that individual issues predominate with respect to his meal and rest break claims, and they would likewise predominate as to his claim for premium pay.
Torres contends the trial court's failure to consider his premium payment theory was an abuse of discretion. We disagree. The court noted his declarants claimed they were not compensated for missed meals. Even if the court did not specifically focus on this theory, it could reasonably have concluded it did not need to, having found that individual issues predominated for his meal and rest break claims.
C. Adequacy of Class Representative
Torres contends the court erred in determining he was an inadequate class representative. He argues there is no connection between his violation of company policy and credibility at trial (noting the policy is at issue in the case) and his inaccurate recording of meal times would be inadmissible character evidence.
Because we conclude there is substantial evidence that Torres did not establish commonality, we need not address these arguments (or his arguments regarding manageability and superiority). (Dailey, supra, 214 Cal.App.4th at p. 1002, fn. 13.) Even if we reached adequacy, Torres has not identified grounds for error. A plaintiff's credibility is relevant to his adequacy as a class representative. (See Jaimez v. Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286, 1296, 1307-1308 [agreeing plaintiff was not an adequate representative where, among other things, he lied on his job application and "questions surrounded his purported falsification of time records and other documents"].)
Torres disputes his conduct reflects on his credibility. But there is evidence to support the trial court's concerns, including Torres's violations of Goodwill policy, and we will not reweigh credibility. (People ex rel. Harris v. Black Hawk Tobacco, Inc. (2011) 197 Cal.App.4th 1561, 1567 [" 'In determining whether there has been [an abuse of discretion], we cannot reweigh evidence or pass upon witness credibility.' "].) As for the evidentiary argument, we need not address it and decline to do so.
On reply, Torres argues the court applied improper legal criteria to his motion for class certification, and also suggests his termination documentation reflects Goodwill requires drivers to secure their trucks during the 30-minute meal. We will not address arguments raised on reply. (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.) We elect to note that, as to his purported legal error argument, he simply appears to maintain his claims are amenable to class treatment.
III. Denial of Leave to Amend
Torres argues the trial court abused its discretion by denying leave to amend the complaint to limit the plaintiff definition to those impacted by the alleged unlawful policies, and to add a new class representative. We disagree.
Code of Civil Procedure section 473 provides that a court "may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading[.]" (Code Civ. Proc., § 473, subd. (a)(1).) "When a request to amend has been denied, an appellate court is confronted by two conflicting policies. On the one hand, the trial court's discretion should not be disturbed unless it has been clearly abused; on the other, there is a strong policy in favor of liberal allowance of amendments." (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296; id. at pp. 296-297 ["This conflict 'is often resolved in favor of the privilege of amending . . . .' "].) Nevertheless, " '[a]n application to amend a pleading is addressed to the trial judge's sound discretion' " and " the trial court's ruling will be upheld unless a manifest or gross abuse of discretion is shown.' " (Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 544; see Congleton v. National Union Fire Ins. Co. (1987) 189 Cal.App.3d 51, 62 [" 'It is of course proper to deny leave when the proposed amendment or amended pleading is insufficient to state a cause of action or defense.' "], italics omitted.)
As an initial matter, Torres suggests the trial court should have granted his motion for leave to amend because it presented valid causes of action, and waited for another certification motion to address certification issues. He contends the court's statement that he could "try again" would reasonably be interpreted as permitting another class certification motion, and he had not yet brought one. But Torres's motion reflects its sole purpose was to address the court's concerns regarding certification, and he sought no material changes to the charging allegations. We decline to find the court erred by ruling on the motion before it.
Turning to the substance of the trial court's ruling, we find no abuse of discretion. The court concluded the amendment to the class definition (which limited the class to those who experienced the allegedly unlawful policies at issue) did "not change the fact that individual questions continue to predominate." The court found his claims turned not on Goodwill's written policies, but on inconsistent application, noting the instructions described in Torres's declarations and citing Koval. (See Koval, supra, 232 Cal.App.4th at p. 1062 [oral instructions "resulted in diverse practices and differing interpretations"].) Torres does not explain how his proposed amendment would better permit his claims to be adjudicated on a class-wide basis. Rather, the amendment appears to shift the problem to one of ascertainability. (See Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal.App.4th 908, 914-915 (Hicks) [class detention encompassing those who "manifested damage or defect" from defendant's conduct was flawed]; ibid. ["ascertainability can be better achieved by defining the class in terms of objective characteristics and common transactional facts"].)
Goodwill contends "fail-safe" classes are impermissible. This term has been used in other jurisdictions to refer to a class in which membership turns on the liability issue. (See, e.g., Intratex Gas Co. v. Beeson (Tex. 2000) 22 S.W.3d 398, 405.) Hicks suggests such classes may be preserved through amendment. (Hicks, supra, 89 Cal.App.4th at pp. 914-916.) Here, the proposed amendment would create, not eliminate, an ascertainability problem.
Citing trial court comments from the certification hearing, Torres argues the court "appeared to take issue with the fact that . . . a number of current employees denied being subjected to the policy," "took the position that such employees could not be part of the class," and "invited [him] to redefine the class, for the apparent purpose of excluding individuals who were not subjected to the polic[y] at issue." We reject this characterization. The court's order denying certification found the class was ascertainable. It denied certification due to lack of commonality and adequacy. We recognize the court was willing to let Torres "try again" to resolve those issues, and suggested he could redefine the class. But there is nothing to suggest the court believed Torres could change the fact that individual issues predominated simply by excluding those who did not experience the alleged conduct.
The comments cited by Torres include the following: "But of the drivers, maybe—if you are correct, maybe half of them were told one thing by supervisors and the other half weren't." "But this is a class action, and half the class shouldn't even be here because they were told—they weren't told what the other members were told, apparently; isn't that right?" "Half the members that you want to certify have a different interpretation of the rules."
Torres also contends the trial court misstated his theory regarding Goodwill's restrictions, and ignored his theories regarding the timekeeping analysis and premium pay. We see no error. When the court initially ruled on class certification, it considered Torres's theories with respect to both written and alleged unwritten policies, and as to both the restrictions and the missed meal and rest breaks (and did not need to specifically address premium pay, as discussed ante). Regardless of particular findings in the court's order denying leave to amend, it impliedly considered these theories again in concluding the proposed amendment did not change the fact that individual issues predominated.
Finally, turning to adequacy, we recognize that when a class representative is inadequate, a trial court generally should "allow . . . an opportunity to amend the[] complaint to name a suitable class representative." (Jones v. Farmers Ins. Exchange (2013) 221 Cal.App.4th 986, 999.) Here, however, there was another barrier to certification: individual issues would predominate. The court did not abuse its discretion in determining that Torres's proposed amendment to the class definition would not resolve this problem, and any failure to address the adequacy of the new class representative was harmless. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801-802 [no civil trial error justifies reversal absent "actual prejudice" to appealing party].)
DISPOSITION
The order is affirmed. Goodwill shall recover its costs on appeal.
McCONNELL, P. J. WE CONCUR: BENKE, J. AARON, J.