Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from an order of the Superior Court of Orange County, Stephen J. Sundvold, Judge, Super. Ct. No. 04CC00097
T. L. Fox & Associates, Thomas L. Fox, II; Kingsley & Kingsley and Eric B. Kingsley for Plaintiffs and Appellants.
Stradling Yocca Carlson & Rauth, Bruce D. May, John F. Cannon and Amy S. Williams for Defendant and Respondent.
OPINION
RYLAARSDAM, J.
Plaintiffs Mark Harrison, Leslie Crouch Floyd, Lisa Chan Miller, and Edwin Garcia appeal from the denial of class certification of their wage and hour action against their former employer, defendant Islands Restaurants. Plaintiffs contend the court misapplied the law in several ways. We disagree and affirm the order denying class certification.
FACTUAL AND PROCEDURAL BACK GROUND
Defendant is a full-service casual dining restaurant with 50 locations in California. Harrison and Floyd are former assistant managers. Miller and Garcia are former hourly employees.
In March 2004, Harrison filed a wage and hour lawsuit against defendant seeking overtime pay and penalties for the alleged denial of 30 minute meal periods and 10 minute rest periods on behalf of 2 classes, assistant managers and hourly employees. Following a year and a half of discovery conducted under the parties’ agreement, Harrison amended the complaint in November 2005 to add Floyd, Miller, and Garcia as class representatives.
The amended complaint alleged three subclasses of employees who worked for defendant within the last four years: Subclass A consisted of all assistant managers employed by defendant in California, who although classified as exempt from overtime pay, work 55 hours a week and devote over 50 percent of their time to non-exempt duties such as “cleaning, stocking, cooking and other non-exempt duties.” Subclass B encompassed assistant managers and hourly employees allegedly denied 10 minute rest breaks for every four hours worked. Subclass C included assistant managers and hourly employees allegedly required to work five hours or more without a meal period.
Plaintiffs moved for class certification. The court denied the motion on the ground plaintiffs had failed to carry their burden of presenting substantial evidence on the elements required for class certification. It determined Harrison and Floyd were not typical or adequate as class representatives and had not shown their claims were the same as the putative class. Nor was there evidence the class members could be ascertained from defendant’s records or to support the claim that defendant had a class-wide practice of encouraging the assistant managers and hourly employees to work unpaid overtime and disallowing meal and rest breaks. Rather, the evidence showed the tasks of the assistant managers varied between restaurants and the time of day and that at least some employees were provided with meal and rest breaks. This meant individual determinations needed to be made regarding overtime and breaks, which did not support ascertainability or commonality.
According to the court, much of the evidence was “difficult . . . to decipher” and susceptible to defendant’s objections. The declarations were “rote, conclusory and lacking in fact,” not credible, contradicted by their deposition testimony, and consisted of hearsay. Additionally, the references from deposition testimony were “taken out of context” or did not support the contentions made.
The court also disregarded the evidence presented in the reply, reasoning that plaintiffs were required to meet their burden of proof in the motion, not the reply, and that accepting the evidence in the reply would violate defendant’s due process rights. It granted defendant’s motion to strike the evidence because much of it lacked foundation or had not been authenticated.
DISCUSSION
1. Standard of Review
Under Code of Civil Procedure section 382, class actions may be brought “when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court . . . .” “The party seeking certification has the burden to establish the existence of both an ascertainable class and a well-defined community of interest among class members. [Citations.]” (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326 (Sav-On).) In order to show a community of interest, the moving party must establish that: (1) common questions of law or fact will predominate over issues requiring separate adjudication; (2) the class representatives possess claims that are typical of the class; and (3) the class representatives can adequately represent the class. (Ibid.)
“At a class certification hearing, the court should not make any determination of the merits or validity of the claim. [Citation.]” (Bartold v. Glendale Federal Bank (2000) 81 Cal.App.4th 816, 829.) But “when the merits of the claim are enmeshed with class action requirements, the trial court must consider evidence bearing on the factual elements necessary to determine whether to certify the class. ‘When the trial court determines the propriety of class action treatment, “the issue of community of interest is determined on the merits and the plaintiff must establish the community as a matter of fact.” [Citation.]’ [Citation.]” (Ibid.)
We review the trial court’s order denying the motion for class certification under the abuse of discretion standard. (Sav-On, supra, 34 Cal.4th at pp. 326-327.) “‘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. . . . [Accordingly,] a trial court ruling supported by substantial evidence generally will not be disturbed “unless (1) improper criteria were used [citation]; or (2) erroneous legal assumptions were made [citation]” [citation]. . . . “Any valid pertinent reason stated will be sufficient to uphold the order.”’ [Citations.]” (Ibid.)
2. Bias
Plaintiffs contend the judge held an improper bias against class action lawsuits because he commented “these are difficult cases,” “the vast majority of them are settled[,]” he has a “jaundiced opinion as to why they’re settled[,]” and that he is surprised most are settled rather than being brought to formal motion because the plaintiffs have a difficult burden. But the judge’s observations were just that. They do not demonstrate bias against the class action procedure.
Nor do the authorities cited by plaintiffs show the existence of a public policy “which encourages the class action device in wage and hour matters . . . .” The public policy to construe minimum wage and overtime laws in favor of employee protection (Sav-On, supra, 34 Cal.4th at p. 340) is separate from the one encouraging the use of the class action device where the requirements are met. (Ibid.) The existence of both public policies does not merge into one encouraging class actions in wage and hour disputes.
Even if such a public policy exists, plaintiffs would still have the burden of establishing the requisite elements for class certification. The mere fact the judge believes that is a difficult task or ruled against certification does not mean it is biased or failed to recognize wage and hour issues are to be liberally construed.
3. Misapplication of the Law
Plaintiffs argue the court misapplied the law by failing to follow Sav-On, supra, 34 Cal.4th at p. 324, which held the trial court in that case did not abuse its discretion in certifying the class. According to plaintiffs, the facts of both cases are similar and therefore the result should be the same. We disagree.
Although some of the facts and arguments made may be similar, the key difference is that in Sav-On the trial court granted certification, whereas here the court denied it. Because we review for abuse of discretion, we must presume “the existence of every fact the trial court reasonably deduce from the record” in favor of the order made. (Sav-On, supra, 34 Cal.4th at p. 329.) Viewing the evidence in this light, we find no abuse of discretion.
4. Ascertainability, Commonality, and Adequacy of the Proposed Class Representatives
Plaintiffs challenge the court’s determinations on ascertainability, commonality, and adequacy of the proposed class representatives. (Sav-On, supra, 34 Cal.4th at pp. 326-327.) They assert the court misapplied the law by making erroneous factual determinations because the declarations they submitted establish the requisite elements. This is nothing more than a request that we reweigh the evidence, which we cannot and will not do. “Where a certification order turns on inferences to be drawn from the facts, ‘“the reviewing court has no authority to substitute its decision for that of the trial court.”’ [Citation.]” (Massachusetts Mutual Life Ins. Co. v. Superior Court (2002) 97 Cal.App.4th 1282, 1287.)
Notably, the court disregarded much of plaintiffs’ evidence because it was “difficult . . . to decipher” and susceptible to defendant’s objections. The court found “[t]he declarations submitted on behalf of the putative class members are rote, conclusory and lacking in fact. They are not credible and do not establish the requisite elements necessary for class certification. The testimony of the Declarants at deposition belies the rote statements made in their Declarations and the Court must therefore disregard the statements made in the Declarations . . . . [¶] The Declaration of Elana Levine is mostly the rankest form of hearsay and must be disregarded. [¶] The references to the testimony of Mr. Nosse are taken out of context and for the most part do not support the contentions made by the Plaintiffs. Deposition testimony must be taken in the context it was given and a proper foundation for it must be made.”
Plaintiffs do not contest these evidentiary rulings on appeal. Nor do they explain how the evidence that was not rejected by the court satisfies their burden of establishing an ascertainable class and a well-defined community of interest among class members. (Sav-On, supra, 34 Cal.4th at p. 326.) In light of that, we cannot say the court abused its discretion in concluding there was insubstantial evidence to establish the elements required for class certification.
5. Evidence in Reply
The trial court disregarded most of the evidence plaintiffs presented in the reply because (1) to accept it would violate defendant’s due process rights and (2) it lacked foundation or had not been authenticated. Plaintiffs assert the court misapplied the law because nothing in former California Rules of Court, rule 1854(c)(1) or (c)(2) (erroneously cited as rule 1884(c)(1) and (2); now rule 3.764(c)(1) and (2)) prohibits it from considering the evidence. But although the court may consider the evidence, that does not mean it “misapplied” the law in rejecting it. Moreover, plaintiffs failed to address the evidence’s lack of foundation and authentication. The court was well within its discretion in striking the evidence.
6. Plaintiffs’ Motion to Strike Defendant’s Evidence
Four months after filing its reply, plaintiffs moved to strike 14 of the declarations submitted by defendant in its opposition to the class certification motion on the ground they were “obtained from putative class members with no showing by defendant that the declarants were informed that such statements could materially affect their interests in this matter.” The court denied the motion, stating, “Plaintiffs have failed to meet their burden to show that the [d]eclarations were coerced. No evidence was submitted to support these allegations. The motion appears to be based entirely on speculation.”
On appeal, plaintiffs argue the court misapplied the law because defendant presented no evidence it informed the declarants of their interests as potential class members. According to plaintiffs, defendant should have given some type of Miranda v. Arizona (1966)384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] warning. No supporting authority is cited. The contention is waived. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)
Plaintiffs have not shown defendant’s attorneys violated the Rules of Professional Conduct and have cited no authority that defendant’s attorneys must affirmatively establish they complied with the rules before they may use declarations obtained from the putative class members to oppose a class certification motion. It is one thing to require attorneys to defend against claims of coercion and quite another thing to require them to refute such claims before they are made. The latter contention is waived absent any authority to support it. (Badie, supra, 67 Cal.App.4th at pp. 784-785.)
DISPOSITION
The order denying class certification is affirmed. Defendant shall recover its costs on appeal.
WE CONCUR: SILLS, P. J., FYBEL, J.