Opinion
C073049
04-26-2017
STACEY OGLE, Plaintiff and Appellant, v. RESTORATION HARDWARE, INC., Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 39201100264123CUOESTK)
Plaintiff Stacey Ogle appeals from the trial court's order denying her motion to certify a class of current and former call center customer service representatives who allegedly were required to take meal breaks late or denied meal breaks altogether, and were underpaid overtime by defendant Restoration Hardware, Inc., in violation of California wage and hour laws. The trial court ruled that a class action was not a superior means of handling the litigation given the evidence submitted, finding that Ogle failed to demonstrate the existence of an ascertainable and numerous class, a predominance of common questions of law or fact, or adequacy as a class representative.
On appeal, Ogle contends the court applied improper criteria, made erroneous legal assumptions, and improperly considered the merits in ruling on the motion. We affirm the order denying her motion for class certification. Substantial evidence supports the trial court's ruling that Ogle failed to meet her burden to establish the requirements necessary for class certification, and the trial court neither employed improper legal criteria or erroneous legal assumptions nor engaged in a merits-based analysis in reaching this conclusion.
FACTS AND PROCEEDINGS
A. The Parties
Defendant Restoration Hardware is a high-end home furnishings retailer with stores throughout California. It operates a customer service call center in Tracy. The call center employs approximately 220 call service representatives who are paid by the hour.
The call center has two components: the "front line" and the "back end." Customer service representatives who work in the front line handle incoming customer and retail store calls, and help resolve customer inquiries, phone orders, and other needs. Back end customer service representatives support the front end and are divided into various teams. Back end teams include the home delivery team, which handles home delivery issues and third-party delivery company calls, the e-mail team, which responds to customer e-mail inquiries, the accommodations team, which works behind the scenes handling financial transactions or refunds for customers, gallery solutions, which handles calls and e-mails from retail stores, and the support team, which returns customer calls and provides them with specific requested product information. Although front line customer service representatives generally handle the majority of incoming customer calls, back end representatives can answer customer calls when needed due to high call volumes.
Ogle worked as a customer service representative at the Tracy call center from January 2005 until September 2010 when she was terminated for attendance-related issues. She typically worked five days a week for a total of approximately 40 to 51 hours per week, and her shifts lasted approximately 8 to 10.5 hours. She was paid by the hour.
Ogle held several different positions while employed by Restoration Hardware. She worked as a front line customer service representative and assisted customers and store associates over the telephone with questions or concerns about orders. She also worked on the back end home delivery team and in a support function. In October 2005, she was promoted to a senior customer service representative, and in August 2007, she was promoted to team lead where she oversaw other customer service representatives. One of her responsibilities as team lead was to enforce Restoration Hardware's meal period policy.
B. The Complaint
In 2011, Ogle sued Restoration Hardware individually and on behalf of a putative class of customer service representatives. A second amended complaint alleged that Restoration Hardware failed to provide meal periods (Lab. Code, §§ 226.7, 512), failed to pay overtime compensation in accordance with California and federal law (Lab. Code, §§ 510, 1194, and 29 U.S.C. § 207), failed to provide paystubs or itemized statements (Lab. Code, § 226, subds. (a) & (e)), failed to timely pay wages (Lab. Code, §§ 201, 203), and engaged in unlawful business practices under Business and Professions Code section 17200 et seq. Ogle also sought civil penalties under Labor Code section 2699.
We note that, although the second amended complaint was filed after Ogle's motion for class certification, Restoration Hardware does not dispute that the second amended complaint was the operative pleading for determining the propriety of class certification.
The second amended complaint generally included three theories of liability. First, Ogle alleged that Restoration Hardware had a company policy of requiring call center employees to finish customer service calls even if they were scheduled to take a meal break. This purported policy meant that she and other customer service representatives were sometimes prevented from taking their first meal break before the end of the fifth hour of work. Second, Ogle alleged customer service representatives who worked more than 10 hours were not scheduled for, and thus not provided with, a required second meal break. Third, Ogle alleged that Restoration Hardware awarded bonuses to call center employees based on the employee's performance, attendance, and for referring new employee recruits, but Restoration Hardware did not include these bonuses in the employees' regular rates of pay when calculating overtime compensation.
C. The Motion for Class Certification
In 2012, before the second amended complaint was filed, Ogle moved for class certification of an overarching class of customer service representatives and six subclasses within the class. The broader class included "[a]ll former and current customer service representatives [of Defendant Restoration Hardware] who worked for Defendant at its call center in Tracy, California, who were paid on an hourly basis (the 'Class Members'), during the period June 1, 2007 to the date of the filing of a motion for class certification in this case (the 'Class Period')."
The six proposed subclasses were defined as: (1) "All Class Members who during the Class Period worked workdays in excess of eight hours, and/or workweeks in excess of forty hours, and were paid a performance bonus, attendance bonus, and/or referral bonus (the 'Overtime Pay Subclass')[; [¶] (2)] All Class Members who during the Class Period worked workdays in excess of eight hours, and/or workweeks in excess of forty hours, and were paid a performance bonus, attendance bonus, and/or referral bonus, whose employment ended during the Class Period (the 'Overtime Pay - Continuing Wages Subclass')[; [¶] (3)] All Class Members who worked shifts of at least six hours during the Class Period whose time records show a meal period after the fifth hour of work (the 'Late Meal-Period Subclass')[; [¶] (4)] All Class Members who worked shifts of at least six hours during the Class Period whose time records show a meal period after the fifth hour of work, whose employment ended during the Class Period (the 'Late Meal-Period - Continuing Wages Subclass')[; [¶] (5)] All Class Members who worked shifts of at least ten hours during the Class Period whose time records show no second meal period was taken (the 'Missed Second Meal-Period Subclass')[; [¶] and (6)] All Class Members who worked shifts of at least ten hours during the Class Period whose time records show no second meal period was taken, whose employment ended during the Class Period (the 'Missed Second Meal-Period - Continuing Wages Subclass')."
To support her class certification motion, Ogle submitted her payroll records and time sheets, Restoration Hardware's discovery responses, and excerpts from the depositions of Lori Drinnen, the call center manager, and Elizabeth Johnson, a call center administrative assistant. She also submitted declarations from her attorney, her own declaration, and the declarations of two former employees.
Former employee Michael Cutting worked at Restoration Hardware for approximately two years, and during that time he worked overtime and earned performance and attendance bonuses. He did not believe Restoration Hardware included these bonuses in his regular rate of pay when calculating overtime compensation. He also sometimes worked more than 10 hours without being provided with a second meal period. Cutting's declaration did not include any facts about Restoration Hardware's purported company policy of forcing employees to take late meal breaks in order to finish customer calls.
On several occasions former employee Melissa Ogle, plaintiff's sister, said that she was not provided a meal break within the fifth hour of work due to the company's policy of requiring customer service representatives to complete customer calls before going on a scheduled break. She also said she was not provided with a second meal period on the occasions she worked 10 hours or more because a second meal period was not placed on her schedule. Although she was told she was eligible for performance, referral, and attendance bonuses, her declaration does not state that she ever actually received any such bonuses.
Ogle's own declaration stated that she and unidentified coworkers worked overtime, that she periodically received bonuses during her employment, and that she "believe[d]" her colleagues did too. She claimed that her employment records showed 134 instances where she took her first meal period after the fifth hour of work, and that, "[o]n at least some of these occasions," the late meal period was allegedly caused by Restoration Hardware's purported policy of requiring customer service representatives to complete customer calls before taking a scheduled break. Although she also claimed that her records showed "several instances" where she worked 10 hours or more without a second meal period, she did not identify for the court the precise number of such occasions.
Restoration Hardware opposed class certification, arguing that Ogle failed to establish the proposed class or subclasses were numerous and ascertainable, and that, at least for the meal period subclass, an insufficient community of interest existed among the class members and their purported claims because the reason why a meal break was taken late or not taken at all involved highly individualized inquiries not subject to class treatment. Restoration Hardware further argued that Ogle's claims were not typical of the class, nor was a class action a superior means for resolving the dispute. It also challenged Ogle's adequacy as a class representative. Restoration Hardware conceded Ogle had identified common questions as to her proposed overtime subclasses.
To support its opposition, Restoration Hardware submitted a declaration from Drinnen, the call center manager, and, like Ogle, excerpts of Drinnen's and Johnson's depositions. It also submitted declarations from 27 current customer service representatives.
As the call center manager since September 2007, Drinnen oversaw the entire center and was familiar with the job duties of customer service representatives in both the front line and back end of the center. According to Drinnen, customer service representatives were required to clock in and out for meal periods. Work schedules varied daily depending on availability and preferences of the customer service representatives, call center hours and historical call volume. Schedules were generally prepared two weeks in advance. Because overtime hours were not yet known when the schedules were prepared, second meal periods were not reflected on the schedules.
Restoration Hardware disputed having a company policy of forcing customer service representatives to finish calls before taking a scheduled meal period. Since June 1, 2007, the company has provided an unpaid, off-duty 30-minute meal period during any work day that exceeds five hours. The meal period is provided before the end of the fifth hour of work, although deviations in scheduled breaks do occur on occasion depending on several factors including individual personalities and preferences, whether an employee works on the front line or back end, the customer service representatives' assigned team, supervisors, and variances in call volume. Restoration Hardware has also provided a second 30-minute meal period when a customer service representative works more than 10 hours in a day. Customer service representatives are permitted to waive the second meal period for shifts lasting longer than 10 hours but less than 12 hours.
Excerpts from Restoration Hardware's Associate Handbook and its HR Policies and Procedures Manual delineating the company's meal break policies were attached to Drinnen's declaration. These meal period policies were communicated to customer service representatives during training and periodic meetings, and Restoration Hardware redistributed its meal break policy from time to time.
In 2011, for example, Restoration Hardware issued a memorandum regarding an employee's ability to waive a second meal period. Drinnen testified that the written waiver form did not change the company's second meal period policy but merely documented the preexisting policy. Ogle, on the other hand, claimed the second meal waiver policy was new since the form was distributed to employees after she filed the present lawsuit.
In response to discovery propounded by Ogle for the class certification motion, Restoration Hardware admitted that it did not include performance and attendance bonuses in the regular rates of pay but denied that it was required to do so. When asked whether she considered Restoration Hardware's performance bonus program discretionary, Drinnen responded "no." Johnson also testified about performance bonuses, which she said were awarded based on such things as score quality and the number of calls answered per minute or per hour. According to Johnson, the company maintained an Excel Spreadsheet showing payouts for performance bonuses.
Johnson also testified about how schedules were prepared for customer service representatives, including when customer service representatives signed up to work overtime. As a former scheduler, she remembered occasions where she scheduled second 30-minute meal break for employees who had signed up to work 10 hours or more.
The 27 declarations of current customer service representatives submitted by Restoration Hardware generally described the varying tasks and types of work they performed, how and when they took their meal breaks, the different circumstances affecting when they took meal breaks including personal preferences, supervisors, shifts, and work flow, as well as if or how often they worked overtime. Many of the declarants stated that Restoration Hardware had never prevented them from taking a meal period, that they disagreed with Ogle's lawsuit, and that they did not want to join the litigation.
Following a full hearing, the trial court denied class certification, finding that Ogle failed to satisfy the legal criteria for maintaining a class action. In the court's view, Ogle failed to submit adequate evidence to show a sufficient number of people had been potentially harmed and that the vagueness of the evidence concerning putative class members would result in over-inclusion in the proposed classes. The court also found that individual rather than common issues would predominate, especially regarding Ogle's meal break claims, which would render a class action a more inferior means of resolving the dispute. The court also noted that for at least some of the class period Ogle had been a supervisor in charge of enforcing meal period policies, which the court found undercut her claim of commonality, as did her potential motive of seeking retribution for being fired. Ogle timely appealed.
DISCUSSION
I
General Class Action Principles and Standard of Review
"Code of Civil Procedure section 382 authorizes class actions 'when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court . . . .' " (Sav-on Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326 (Sav-on).) The standards for class certification are well established.
The party seeking certification bears the burden of establishing "the existence of both an ascertainable class and a well-defined community of interest among class members." (Sav-on, supra, 34 Cal.4th at p. 326.) "The certification question is 'essentially a procedural one that does not ask whether an action is legally or factually meritorious.' " (Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1104 (Lockheed).) " 'The ultimate question in every case of this type 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.' " (Id. at pp. 1104-1105.)
We review the trial court's ruling denying a motion for class certification for abuse of discretion. (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.' " (Lockheed, supra, 29 Cal.4th at p. 1106.) " 'Our task on appeal is not to determine in the first instance whether the requested class is appropriate but rather whether the trial court has abused its discretion . . . .' " (Reese v. Wal-Mart Stores, Inc. (1999) 73 Cal.App.4th 1225, 1233 (Reese).)
Ordinarily, we will not disturb a trial court ruling supported by substantial evidence unless the court (1) used improper criteria, or (2) made erroneous legal assumptions. (Sav-on, supra, 34 Cal.4th at pp. 326-327; see also Lockheed, supra, 29 Cal.4th at p. 1106 ["a certification ruling not supported by substantial evidence cannot stand"].) In other words, "we will not substitute our judgment of the suitability of class treatment for that of the trial court, as long as the trial court applied the proper legal principles and assumptions, and the ruling is supported by substantial evidence." (Reese, supra, 73 Cal.App.4th at p. 1233.) " ' "Any valid pertinent reason stated will be sufficient to uphold the order." ' " (Sav-on, at p. 327; Lockheed, at p. 1106 [appellate court examines trial court's reasons for granting or denying class certification].)
In determining whether substantial evidence supports a trial court certification order, "we consider whether the theory of recovery advanced by the proponents of certification is, as an analytical matter, likely to prove amenable to class treatment." (Sav-on, supra, 34 Cal.4th at p. 327.) " 'Reviewing courts consistently look to the allegations of the complaint and the declarations of attorneys representing the plaintiff class to resolve this question.' " (Ibid.)
With these principles in mind, we turn to Ogle's multiple challenges to the order denying class certification.
II
The Operative Complaint
Ogle first argues the order denying certification must be reversed because the court erroneously found that "the certification [motion] rest[ed] on a Second Amended Complaint . . . not yet . . . filed with the Court." We disagree with Ogle's contention that this statement alone shows the court "employed improper criteria or made erroneous legal assumptions" when ruling on the motion.
Although not quoted by Ogle, the court's order also expressly provides, "[t]he operative pleading in this matter is the Second Amended Complaint filed August 30, 2012." Thus, the trial court was well aware of the relevant pleading when deciding the motion. The order's later statement that the motion rested on a not yet filed complaint simply reflects the reality that when Ogle moved for class certification in July 2012 the operative pleading was the first amended complaint because the second amended complaint had not yet been filed. Any alleged harm from the sequence of such filings, as Restoration Hardware points out, would have been prejudicial to the company and not Ogle, which is what the court's order acknowledged even if perhaps inartfully phrased.
III
Ascertainability
Ogle contends the trial court erred in finding that her overarching class or any of her proposed subclasses were not ascertainable. She argues the court erroneously evaluated ascertainability in four ways: (1) it ignored the fact that customer service representatives could be identified; (2) it required her to satisfy independently the numerosity requirement for each subclass; (3) it required her to identify individual class members; and (4) it infected its analysis with merits-based issues, such as whether she could show exactly which class members would ultimately be entitled to receive damages in each subclass.
In concluding Ogle failed to establish the existence of an ascertainable class, the trial court reasoned: "As to ascertainability, bare reference to numbers of persons involved, without clear supporting evidence, is meaningless. Viewed in the light most favorable to moving party, five Plaintiffs are identified. Evidence submitted at the certification hearing must show how many were potentially harmed by Defendant's actions. The vagueness of the evidence on this point would result in over-inclusion."
" ' " '[C]lass members are "ascertainable" where they may be readily identified without unreasonable expense or time by reference to official records.' " ' " (Ghazaryan v. Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524, 1532 (Ghazaryan).) To determine whether a class is ascertainable, courts "examine the class definition, the size of the class and the means of identifying class members." (Reyes v. Board of Supervisors (1987) 196 Cal.App.3d 1263, 1274 (Reyes).) While, "[n]o set number is required as a matter of law for the maintenance of a class action" (Rose v. City of Hayward (1981) 126 Cal.App.3d 926, 934), the party advocating class treatment must demonstrate the existence of a sufficiently numerous class. (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021 (Brinker).)
According to Ogle, her umbrella class definition met all of the requirements for establishing an ascertainable class. That class, as noted above, was defined as "[a]ll former and current customer service representatives [of Defendant Restoration Hardware] who worked for Defendant at its call center in Tracy, California, who were paid on an hourly basis (the 'Class Members'), during the period June 1, 2007 to July 31, 2012 the date of the filing of this Motion [for class certification in this case] (the 'Class Period')."
In her view, the size of the class was adequate because the evidence showed that Restoration Hardware currently employed between 230 to 250 customer service representatives. Because persons filling these positions changed from time to time, the number of potential class members was allegedly in the hundreds. She also claims that Restoration Hardware's records alone could identify the class members.
The trial court, however, properly recognized that the umbrella class definition encompassed persons not potentially harmed by Restoration Hardware's alleged actions. As defined, the umbrella class necessarily included all current and former customer service representatives even though he or she never took a late first meal period, never worked more than 10 hours, never missed a second meal period, never worked overtime, and never earned a bonus. (Compare Reyes, supra, 196 Cal.App.3d at p. 1274 [class definition proper where it included "all individuals potentially affected by the challenged administrative sanctioning process"]; Miller v. Woods (1983) 148 Cal.App.3d 862, 873 [class was defined as " 'all applicants, recipients and providers of IHSS in California who have been or will be disqualified from receiving or providing protective supervision based solely on MPP § 30-463.233c.' "]; Employment Development Dept. v. Superior Court (1981) 30 Cal.3d 256, 260 [class was defined as "all other women 'subjected' to the provisions of [Unemployment Insurance Code] section 1264"].)
The broader class definition, moreover, does not "describe[] a set of common characteristics sufficient to allow a member of that group to identify himself or herself as having a right to recover based on the description . . . ." (Aguirre v. Amscan Holdings, Inc. (2015) 234 Cal.App.4th 1290, 1306.) This is because "simply having the status of an employee does not make the employer liable for a claim for overtime compensation or denial of breaks." (Sotelo v. Medianews Group, Inc. (2012) 207 Cal.App.4th 639, 654 (Sotelo).)
We also discern no error in the court's observation that, through competent evidence, Ogle was required to show a sufficiently numerous group of potentially harmed persons. A plaintiff "must prove that there is an identifiable group that was harmed by the defendant . . . ." (Akkerman v. Mecta Corp., Inc. (2007) 152 Cal.App.4th 1094, 1100 (Akkerman).) In Akkerman, for example, the court found the class definition overbroad where it included " 'all members of the public who have received shock treatment in California from MECTA devises after September of 1997' " because the definition included not only those patients deceived by Mecta but also patients who relied on their doctor's advice or informed consent forms which disclosed the risks. (Id. at pp. 1099-1100; but see Cohen v. DIRECTV, Inc. (2009) 178 Cal.App.4th 966, 977 [criticizing Akkerman because it "smudged the distinction" between ascertainability and commonality]; but compare Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 706 [stating that "whether there is an ascertainable class depends in turn upon the community of interest among the class members in the questions of law and fact involved"].)
Ogle does not appear to dispute that under her proposed definition, all customer service representatives would satisfy the definition without regard to whether they were potentially harmed by the challenged actions. She instead cites several cases, including Aguiar v. Cintas Corp. No. 2 (2006) 144 Cal.App.4th 121, 136 (Aguiar), Lee v. Dynamex, Inc. (2008) 166 Cal.App.4th 1325, 1334 (Lee), and Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 14 (Estrada), to support her argument that courts routinely find a class ascertainable even though it might include persons who may not ultimately be entitled to relief. In those cases, however, the classes were more narrowly defined and any overbreadth appeared only marginal. (Aguiar, at pp. 127-128, 135-136 [class limited to those employees who worked at least 20 hours per month on city contracts, and, for class ascertainment purposes, court reasonably inferred all employees in relevant positions worked to some extent on city contracts because employer did not separate city contract items from items for other customers, which were all processed through same plants]; Lee, at p. 1331 [class definition of all persons classified as independent contractors who picked up and delivered goods for defendant that was greatly narrowed to exclude four categories of people was sufficiently ascertainable]; Estrada, at p. 14 [class limited to single work area drivers who drive (or had driven) full time and who do not (or did not) subcontract their service areas out to others for reasons other than vacation, sick leave, or other commonly excused employment absences].)
While it is true class certification should not be denied on overbreadth grounds when the class definition may be only "slightly" overinclusive (Ghazaryan, supra, 169 Cal.App.4th at p. 1533, fn. 8), in this case the overbreadth arising from the umbrella definition appears more than slight. As Restoration Hardware points out assuming the umbrella class consists of at least the 230 current employees claimed by Ogle and assuming the five potential members noted by the court actually exist, which may be a generous assumption given the evidence presented, the number of potentially injured employees consists of roughly two percent of the umbrella class. In other words, the class would be over-inclusive by nearly 98 percent. Other courts have found overbreadth based on less. (See e.g., Sevidal v. Target Corp. (2010) 189 Cal.App.4th 905, 921 (Sevidal) [finding overbreadth where the evidence showed that "approximately 80 percent of the online purchasers did not select the ' "Additional Info" ' icon and were never exposed to the alleged misrepresentation"]; compare Bell v. Farmers Ins. Exchange (2004) 115 Cal.App.4th 715, 743 (Bell) [class ascertainable even though a "marginal element" of 5.7 percent of the employees in random sample lacked an interest in the objectives of the litigation].) The trial court thus did not abuse its discretion in refusing to certify the broader class proposed by Ogle.
And, while the various subclass definitions are more narrowly drawn, we conclude the trial court did not abuse its discretion in finding Ogle failed to carry her burden of presenting substantial evidence to show the subclasses were sufficiently numerous to justify class treatment.
We note that while Ogle argued in her opening brief that each subclass was sufficiently numerous and ascertainable, she contends in her reply that proof of numerosity as to each subclass was not required. Arguments raised for the first time in the reply brief are untimely and may be disregarded. (WorldMark, The Club v. Wyndham Resort Development Corp. (2010) 187 Cal.App.4th 1017, 1030, fn. 7.) In any event, in the cases cited by Ogle, numerosity was not evaluated or required for a later added subclass where the court had already certified an overarching class found to be sufficiently numerous. (See American Timber & Trading Co .v. First Nat'l Bank (9th Cir. 1982) 690 F.2d 781, 783 & 787, fn. 5; Anderson v. Bank of South, N.A. (U.S.D.C. M.D. Fla. 1987) 118 F.R.D. 136, 145.) The trial court, however, rejected Ogle's request to certify the larger umbrella class.
"A party seeking class certification bears the burden of satisfying the requirements of Code of Civil Procedure section 382, including numerosity, and the trial court is entitled to consider 'the totality of the evidence in making [the] determination' of whether a 'plaintiff has presented substantial evidence of the class action requisites.' " (Soderstedt v. CBIZ Southern California, LLC (2011) 197 Cal.App.4th 133, 154 (Soderstedt).)
Soderstedt is instructive. There, the appellants brought a putative class action against their former employer claiming the accounting firm misclassified associates and senior associates as exempt from overtime and meal and rest periods. (Soderstedt, supra, 197 Cal.App.4th at pp. 138-139.) In affirming the trial court's order denying certification, the appellate court found the appellants had failed to meet their burden of demonstrating numerosity where they did not present any evidence to support their allegation that there were 146 putative class members. (Id. at p. 154.) Instead, the evidence showed that the class consisted of only the two or three accountants who had filed declarations. (Ibid.) None of appellant's submitted declarations even identified the number of allegedly misclassified associates or senior associates. (Ibid.)
Here, the absence of evidence is similar. The second amended complaint alleged that there were in excess of 400 putative class members. The motion for class certification apparently revised that number down to approximately 230 customer service representatives. After considering the evidence in the light most favorable to Ogle, the court found that Ogle showed five potential class members. Substantial evidence supports the trial court's estimation given Ogle's actual evidentiary submissions.
For the overtime subclasses, Ogle submitted her declaration and one from Michael Cutting, who, like Ogle, declared that he worked overtime and earned a bonus but did not believe that the bonus was included in his regular rate of pay. It is not apparent from either declaration, however, whether they earned bonuses during a period in which they worked overtime. The other declaration submitted by Ogle, from her sister, stated only that she was informed about the eligibility requirements for bonuses, but not that she ever actually earned any bonuses.
Like in Soderstedt, none of the declarations submitted on behalf of Ogle established or even estimated the number of customer service representatives who worked overtime during the proposed class period or the number of individuals who earned bonuses during that same time. (Compare Soderstedt, supra, 197 Cal.App.4th at p. 154 [noting appellants' declarations did not identify the number of allegedly misclassified associates or senior associates].) Instead the declarations contained no more than bare references to an unidentified number of Ogle's "coworkers" working overtime and her belief that "most" of her colleagues received bonuses. No actual facts beyond a vague belief are provided. While this evidence could have likely been developed during discovery for the class certification motion, it was not.
Ogle's evidence, when generously construed, established only two potential overtime subclass members. While a few of the declarations submitted by Restoration Hardware show employees who worked at least some overtime, the declarations do not provide any information on if, when, or how often the employees earned bonuses. Given the declaration of Ogle's sister, which states only that she was aware of the bonuses but not that she ever earned a bonus, it is not unreasonable to infer that other customer service representatives likewise did not qualify for or earn bonuses.
For the late meal period subclasses, Ogle and her sister both declared they were prevented from taking their first meal break before the end of their fifth hour of work on some occasions because of Restoration Hardware's purported policy of requiring customer service representatives to complete calls before taking a scheduled break. Cutting's declaration did not address this issue at all. At most, then, Ogle's evidence again showed two potential class members.
Restoration Hardware, by contrast, submitted evidence disputing Ogle's late meal period theory. According to Restoration Hardware, its meal break policies were set forth in the Associate Handbook and the HR Policies & Procedures that were attached to Drinnen's declaration. According to these documents, Restoration Hardware's company policy is to provide a first meal period before the end of the fifth hour of work for any work day exceeding five hours, and a second meal period for work days lasting longer than 10 hours. Likewise, the declaration from Restoration Hardware's call center manager stated that it has been Restoration Hardware's policy since June 2007 to provide employees with a first meal period before the end of the fifth hour of work for any work day exceeding five hours.
Several current customer service representatives confirmed the existence of this meal policy. The declaration of Belinda Elisaia further explained that "Restoration Hardware adheres to the 2-2-2 rule, whereby we are required to take a rest break 2 hours after we come in, a lunch break 2 hours after that, and another rest break 2 hours after that." Several other employee declarations also state that no one from the company had ever told them they had to stay on a call past their scheduled meal break or prevented them from taking a meal break, that if they did complete a call past the fifth hour of work it was done so voluntarily, and that some employees even had management tell them to get off the phone so they could take a break.
For the missed second meal period subclasses, the declarations of Ogle, her sister, and Cutting each stated that they had on occasion worked more than 10 hours and that a second meal break was not on their schedule on those days. Ogle also testified to a conversation with a former employee who claimed to have worked 12 hours without an additional break. Viewed in the light most favorable to Ogle, this evidence showed four potential class members for the missed second meal period subclass.
None of Ogle's submitted declarations estimate or establish how many customer service representatives actually ever worked more than 10 hours in a day, or how many did not take a second meal period. When asked if she was aware if any other current or former employee was not provided a second meal period, Ogle testified that she had just heard "rumors," but "[did not] have any specific information."
According to Restoration Hardware's evidence, however, some customer service representatives rarely, if ever, work overtime, those that do often do not work more than 10 hours, many voluntarily choose not to take a second meal break when working more than 10 hours in a day, and some actually take second meal breaks. Ogle herself admitted that she sometimes took second meal breaks when working over 10 hours, and that she sometimes would not clock in and out for those meal breaks. Ogle's own time records and schedules showed she did take second meal breaks even though her schedule did not show such a break. Given this evidence, the court was amply justified in finding Ogle failed to establish a sufficiently numerous late meal period class.
We reject Ogle's argument, made for the first time in her reply brief when discussing commonality, that we cannot consider the evidence submitted by Restoration Hardware because the court's order does not expressly cite to the evidence. "[T]he law does not demand great detail from the trial court." (Dailey v. Sears, Roebuck & Co. (2013) 214 Cal.App.4th 974, 986 (Dailey).) "California courts have held that even if the trial court's order on class certification does not state reasons, or does so without providing detail, it will be deemed sufficient for review purposes so long as the basis for the court's ruling may be discerned from the record." (Ibid.) Here, the record shows the court reviewed the briefs and considered all of the parties' evidentiary submissions in ruling on the motion. Restoration Hardware's evidence, then, is properly considered.
We also reject her suggestion that the trial court could not find Restoration Hardware's evidence more compelling than her own. The court was entitled to consider the totality of the evidence when determining whether Ogle presented substantial evidence of the class action requisites. (Soderstedt, supra, 197 Cal.App.4th at pp. 154-155.) "Critically, if the parties' evidence is conflicting on [class certification issues], the trial court is permitted to credit one party's evidence over the other's in determining whether the requirements for class certification have been met." (Dailey, supra, 214 Cal.App.4th at p. 991; see also Mora v. Big Lots Stores, Inc. (2011) 194 Cal.App.4th 496, 508-509 [it is within trial court's discretion to credit defendant's evidence over plaintiff's]; Quacchia v. DaimlerChrysler Corp. (2004) 122 Cal.App.4th 1442, 1447-1448 (Quacchia) [there is no rule that conflicting evidence or inferences must be disregarded when determining whether requirements of class certification are met].)
The trial court's characterization of Ogle's evidence regarding numerosity as vague or lacking, moreover, does not mean the court erroneously believed that Ogle "was required to prove, at the class certification stage, that all members of each proposed subclasses were actually entitled to that specific category of damages" as Ogle argues. The court simply recognized that sufficient evidence must show putative class members who were "potentially" rather than actually harmed.
Nor do we find that the trial court engaged in a "merits-focused analysis" which "confused the objective issue of ascertainability with ultimate trial questions on liability and quantum of injury" when considering the numerosity evidence. Instead, the trial court's observations about the lack of evidence presented by Ogle to establish numerosity are no different than the court's observation in Soderstedt that the declarations of two or three accountants were insufficient to show the proposed class consisted of 146 putative class members as alleged. (Soderstedt, supra, 197 Cal.App.4th at pp. 154-155.)
Ghazaryan, supra, 169 Cal.App.4th 1524, which Ogle cites to support her contention that the court improperly considered the merits of her claims when ruling on numerosity, is not helpful to her. Unlike here, numerosity was not contested in Ghazaryan and the court implicitly found sufficient evidence to conclude that the proposed class included as many as 190 current and former employees. (Ghazaryan, supra, 169 Cal.App.4th at p. 1531, fn. 5.) The dearth of evidence in this case, as noted by the trial court, is decidedly different.
The court's finding that the evidence presented failed to demonstrate Ogle's proposed classes were readily ascertainable and sufficiently numerous without being more than slightly over-inclusive is amply supported by the record. The evidence presented by Ogle did not provide substantial support for the allegation in the second amended complaint that there were in excess of 400 putative class members. And the allegation itself is not evidence. (Soderstedt, supra, 197 Cal.App.4th at pp. 154-155.) Nor was the evidence she submitted sufficient to support the revised estimate of 230 class members found in the certification motion. The court thus did not abuse its discretion in denying class certification on the basis of a lack of ascertainability and numerosity.
IV
Common Questions of Law and Fact
Ogle next challenges the court's ruling that she failed to establish a sufficient community of interest to warrant class treatment of her claims. While the order does not address the issue of commonality for Ogle's overtime subclasses, as Restoration Hardware conceded the presence of sufficient common questions with respect to those subclasses, Ogle nevertheless contends the court erred in ruling common questions of law and fact would not predominate the litigation.
We disagree, finding substantial evidence supports the trial court's conclusion that individual rather than common issues are likely to predominate the meal period claims. Because the trial court did not support its denial of the overtime subclasses on this basis, we need not decide whether common questions of law or fact predominate the issues for those subclasses. (See Quacchia, supra, 122 Cal.App.4th at p. 1447 ["In reviewing an order denying class certification, we consider only the reasons given by the trial court for the denial, and ignore any other grounds that might support denial"].)
" '[T]he "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; Sav-on, supra, 34 Cal.4th at p. 326.) " '[T]his means "each member must not be required to individually litigate numerous and substantial questions to determine his [or her] right to recover following the class judgment; and the issues which may be jointly tried, when compared with those requiring separate adjudication, must be sufficiently numerous and substantial to make the class action advantageous to the judicial process and to the litigants." [Citations.]' " (Sotelo, supra, 207 Cal.App.4th at p. 651.)
"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.' " (Brinker, supra, 53 Cal.4th at p. 1021.) "To assess predominance, a court 'must examine the issues framed by the pleadings and the law applicable to the causes of action alleged.' " (Id. at p. 1024.)
In general, absent a waiver, an employer must provide a first 30-minute meal period no later than the end of a nonexempt employee's fifth hour of work, and a second 30-minute meal period no later than the end of the employee's 10th hour of work. (Labor Code, § 512, subd. (a); Cal. Code Regs., tit. 8, § 11070, subd. (11); Brinker, supra, 53 Cal.4th at pp. 1041-1042.) While an employer must relieve the employee of all duty for the designated period, it need not ensure that the employee does no work. (Brinker, at p. 1034.) "Bona fide relief from duty and the relinquishing of control satisfies the employer's obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability" for a Labor Code violation. (Id. at pp. 1041-1042.)
For Ogle's meal period claims, the core dispute thus centers on whether Restoration Hardware provided customer service representatives with first and second meal periods. The court found that individual rather than common inquiries would dominate these determinations. The court's order states in part, "evidence showing only that meal breaks were not taken is not the end of the inquiry, but the beginning. Under Brinker, supra, an employer is required only to provide a break. If it was not taken, or was taken but not recorded will be a fact-specific issue requiring individualized evidence. This conclusion is buttressed by the fact that there are several different 'duties' categories among the [customer service representatives]. Some categories do not involve answering the telephone, which is the activity upon which Plaintiff bases her claims."
Other courts have likewise found that determining whether an employer provided a meal period often involves a highly individualized assessment not susceptible to classwide resolution. (See e.g., Dailey, supra, 214 Cal.App.4th at pp. 1000-1002 [no substantial evidence that company employed any policy or routine practice to deprive class members of off duty meal and rest breaks, and accordingly, the plaintiff failed to show the allegation could be proved on a classwide basis], Sotelo, supra, 207 Cal.App.4th at p. 662; Sultan v. Medtronic, Inc. (C.D. Cal. 2012) 2012 WL 3042212, at p. *2-3 [liability and not merely damages will need to be determined on an individualized basis for plaintiff's claim that putative class members missed meal periods]; Kenny v. Supercuts, Inc. (N.D.Cal. 2008) 252 F.R.D. 641, 646-647 (Kenny).) These fact specific inquiries involve individualized questions of whether breaks were missed, and if so, why they were not taken.
Ogle contends individual inquiries were not actually required for either her late first meal period subclass or her missed second meal period subclass. She insists individual issues concerning why an employee took a late first meal break or missed a second meal break are "nonexistent." This is because, she contends, Restoration Hardware must first establish that it maintained a policy of actually relieving employees of duty for legally compliant meal periods before a court may consider whether any particular employee waived a break.
Ogle, however, concedes in her reply brief that "the customer service representatives' . . . meal breaks were subject to a uniform policy as contained in the employee manual." (Italics added.) According to that uniform company policy, which Restoration Hardware distributes to all new employees during new hire training and which it redistributes from time to time during periodic meetings, Restoration Hardware provided hourly customer service representatives with one 30-minute meal period for every shift exceeding five hours. Although Ogle claims the Associate Handbook does not refer to second meal periods, the document does state that "[t]he requirement for meal periods varies by state and is listed in the HR Policies & Procedures Manual." The HR Policies & Procedures Manual, in turn, provides that a second meal period "is required on all workdays on which an associate works more than 10 hours."
Thus, even according to Ogle, the evidence shows Restoration Hardware had a company policy of providing customer service representatives with two 30-minute meal periods depending on the length of an employee's work day. Ogle herself testified that she was aware of the company policy that employees were entitled to an unpaid 30-minute off-duty meal period if they worked more than five hours, and that customer service representatives were supposed to take the second 30-minute meal period Restoration Hardware provided to employees working more than 10 hours. Although she contends otherwise, individual inquiries into any deviations from this uniform policy or any waiver of meal periods do exist and would be relevant. And, as Restoration Hardware argues, any failure to enforce this company policy would be the exception not the rule thus rendering the claims inappropriate for resolution on a classwide basis because violations could not be established with common proof. (Arenas v. El Torito Restaurants, Inc. (2010) 183 Cal.App.4th 723, 734-735 (Arenas) ["The trial court could, without abusing its discretion, conclude the requisite predominance was missing where there was insufficient evidence misclassification was the rule rather than the exception"].)
While Ogle claims her evidence showed a uniform policy of requiring customer service representatives to complete calls before taking a break, based on the totality of the evidence presented, the court was amply justified in implicitly finding otherwise. Like she does on appeal, Ogle pointed to her own declaration, which included only a conclusory statement without any underlying factual basis that the company had such a policy, and Drinnen's deposition testimony where she described what customer service representatives will normally do when on a long call. Drinnen testified that employees normally contact the communications desk to alert them they are on a long call, and then they will take their break once off the call. Yet, what an employee will "normally" do does not establish a uniform, company policy. (See Mora, supra, 194 Cal.App.4th at p. 512 [trial court "could properly conclude there was insufficient evidence of a uniform corporate policy requiring store managers to engage primarily in nonmanagerial duties and, therefore, the theory of recovery was not amenable to common proof"].)
Restoration Hardware, moreover, presented substantial evidence that the alleged policy identified by Ogle did not exist. (Dailey, supra, 214 Cal.App.4th at p. 1002 [trial court entitled to credit defendant's evidence over contrary inferences suggested by plaintiff's evidence]; Arenas, supra, 183 Cal.App.4th at p. 734 [trial court "credited defendants' evidence to the effect that managers' duties and time spent on individual tasks varied widely from one restaurant to another" in finding plaintiff's theory of recovery, that managers were routinely misclassified based solely on their job descriptions, was not amenable to common proof].) Several of its witnesses stated that no one from the company had ever told them they had to stay on a call past their scheduled meal break or prevented them from taking a meal break, that if they did complete a call past the fifth hour of work it was done so voluntarily, and that some employees even had management tell them to get off the phone so they could take a break. Given this evidence, the court could reasonably conclude that Restoration Hardware did not employ a uniform policy of requiring customer service representatives to complete a call before taking a break, and that individualized inquiries would thus be necessary to determine why a meal break was taken late.
Even if we assume, moreover, that Restoration Hardware did have such a policy, there was insufficient evidence presented to show the policy had the uniform, illegal effect of requiring customer service representatives to take their first meal break after the end of the fifth hour of work. (Dailey, supra, 214 Cal.App.4th at p. 996 [evidence undermined essential premise for class certification that defendant's liability could be established with common proof because the allegedly uniform business practices did not have the same impact on managers and assistant managers classwide].) Although Ogle claims that she took her first meal period after the fifth hour of work on 134 occasions, she further attests that the purported policy caused these late meals on only "some of these occasions." Her declaration in fact shows that employment records revealing a break was taken after the fifth hour of work would not necessarily establish liability. Instead, like the court found, fact-specific inquiries are still required to show enforcement of the policy caused a late meal period on any particular day for any particular employee.
Substantial evidence also supports the trial court's conclusion that individual rather than common questions would predominate Ogle's second meal period claims. Ogle's own evidence showed that the fact that a second meal period was not "scheduled" does not necessarily mean that employees were prevented from taking a second meal period on days they worked more than 10 hours. (See e.g., Kenny, supra, 252 F.R.D. at p. 646 [rejecting as a matter of law the plaintiff's theory that defendants did not provide a meal break under California law because it did not "schedule" breaks; "whatever the law requires, it does not require an employer to affirmatively schedule meal breaks"].)
Ogle testified that employees generally received their work schedules a few days in advance, and that the schedules never included overtime hours because employees signed up for or were assigned overtime after the schedules were distributed. Thus, because it was not known who was working more than 10 hours when the schedules were made, a second meal period was not reflected on the schedules. Restoration Hardware's call center manager confirmed Ogle's description of the schedules and the timing of their preparation, explaining that schedules were prepared approximately two weeks in advance, and that because overtime hours were not yet known when the schedules were made, second meal periods were not scheduled in advance.
Notwithstanding the fact that her work schedules did not reflect a second meal break, other evidence showed Ogle sometimes took a second 30-minute meal period when working overtime. Restoration Hardware's evidence similarly showed that some customer service representatives took second meal breaks when working over 10 hours even though such breaks would not have been included on their schedules.
The mere absence of a second meal period from the original schedule by itself, then, does not establish that Restoration Hardware failed to provide appropriate second meal breaks. Indeed, as Restoration Hardware argued at the certification hearing, a verbal tap-on-the-shoulder system could be just as effective for providing employees with required breaks. Ogle in fact acknowledged that supervisors sometimes verbally told her to take a second meal break.
In any event, Ogle acknowledged during her deposition that determining the reason why an employee did not take a second meal period involved a highly individualized inquiry, which would vary from day to day and person to person. She conceded that whether and when she took a second meal break depended on a variety of factors including, her supervisor and how he or she managed things, incoming call volume, how many other people were on break at any given time, and whether additional breaks could be accommodated at the requested time. She also admitted that there were instances where she took a second meal break but did not clock in and out for those meal breaks thus requiring an individualized inquiry into the accuracy of each employee's time records.
Ogle, moreover, conceded that she might choose to forego a second 30-minute meal break if her shift was ending in 30 minutes. During the certification hearing, Restoration Hardware's counsel noted that on 47 of the approximately 62 occasions that Ogle's records showed she worked more than 10 hours without recording a second meal period (or approximately 75 percent), she worked under 10.5 hours--the very scenario she described regarding her personal approach to a second 30-minute meal break.
In light of the above, the court reasonably could conclude there was insufficient evidence to show the mere absence of a second meal period from an employee's schedule--Ogle's theory of recovery--was not susceptible to common proof, and, therefore, as an analytical matter, not amenable to class treatment. While one may be able to determine on a common basis that the employees' work schedules do not include a second meal break, such evidence, without a more individualized inquiry, is insufficient to establish that Restoration Hardware was liable for failing to provide second meal breaks. Instead, the evidence suggested that in order to prove Restoration Hardware did not provide second meal breaks, Ogle would have to present an analysis day by day, and employee by employee.
Such numerous fact-specific inquiries, moreover, involve more than simply proof of individual damages. (Arenas, supra, 183 Cal.App.4th at p. 732 ["a class action will not be permitted if each member is required 'to litigate substantial and numerous factually unique questions' before a recovery may be allowed"]; Brown v. Regents of University of California (1984) 151 Cal.App.3d 982, 989 ["If the ability of each member of the class to recover clearly depends on a separate set of facts applicable only to him, then all of the policy considerations which justify class actions equally compel the dismissal of such inappropriate actions at the pleading stage"].) Ogle's reliance on cases finding class actions appropriate even though class members must make an individual showing as to eligibility for damages is thus misplaced. (See e.g., Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, 1207 ["[A] class is not inappropriate merely because each member at some point may be required to make an individual showing as to eligibility for recovery"]; Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal.App.4th 908, 916 ["As a general rule if the defendant's liability can be determined by facts common to all members of the class, a class will be certified even if the members must individually prove their damages"]; Bell, supra, 115 Cal.App.4th at pp. 742-743 ["It is well established that the necessity for an individual determination of damages does not weigh against class certification"].)
Finally, contrary to Ogle's characterizations, the trial court in this case did not improperly address the merits of her claims--it did not make any finding that Restoration Hardware did or did not provide appropriate meal breaks or that all customer service representatives had to be entitled to compensation for missed first or second meal periods before certification was warranted. Rather, the court merely determined the nature of the evidence necessary to prove or disprove the claim, and, given that evidence, ruled common issues would not predominate if the proposed meal break subclasses were certified. We find no error in this determination.
Given our conclusion that the court did not err in finding common questions would not predominate, we need not determine whether the court erred in stating Ogle's claims may not be common to the class because she was a supervisor during a portion of her employment or that she may not adequately represent the class because she might have harbored a potential motive for retribution since she was fired. (Quacchia, supra, 122 Cal.App.4th at p. 1455.)
V
Superiority
To determine the superiority of class treatment, the trial court must weigh the respective benefits and burdens of class litigation. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.) A class action is only appropriate where substantial benefits accrue to both the litigants and the court. (Ibid.)
Referencing its earlier finding that "[i]ndividual issues [were] likely to predominate," the trial court ruled that a class action would not be a superior method of adjudication. It did not elaborate further on this conclusion. Ogle contends the court's finding lacks substantial evidentiary support since, in her view, the court erred in determining predominance.
Given our conclusions regarding ascertainability and numerosity and our determination that the court did not abuse its discretion in finding common issues did not predominate the meal break subclasses, we need not consider whether the trial court erred in stating that class certification was not the superior method of handling this controversy. (Quacchia, supra, 122 Cal.App.4th at p. 1455; Dailey, supra, 214 Cal.App.4th at p. 1002, fn. 13 ["Given our conclusion here that [plaintiff] failed to make the necessary showing of commonality as to his overtime pay and rest/meal break claims, it is not necessary for us to address the trial court's additional stated reasons for denying class certification, i.e., that a class action is not the superior method for resolving this dispute, and that [plaintiff] is not a suitable class representative"].)
DISPOSITION
The order denying certification is affirmed.
HULL, Acting P. J. We concur: ROBIE, J. BUTZ, J.