Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Ct. No. BC357348 Elizabeth A. Grimes, Judge.
Thierman Law Firm and Mark R. Thierman for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
MALLANO, P. J.
In this wage-and-hour case, the trial court denied plaintiff’s motion to certify a class, finding that a class was not ascertainable and that a class action was not a superior method of resolving plaintiff’s claims. We conclude that the trial court did not abuse its discretion and that its decision was supported by substantial evidence. We therefore affirm.
I
BACKGROUND
The following allegations, facts, and evidence are drawn from the complaint and the motion to certify a class.
On August 21, 2006, plaintiff Josefina Rosal filed this action against her former employer, American Companion and Homemaker Services (American Companion), denominated as a class action. Rosal alleged that American Companion was in the business of providing home care as an alternative to institutional convalescent and formal care. Further, American Companion provides routine caregiver services and employs certified nursing assistants, certified home health aides, and experienced companions and homemakers.
The complaint asserted that American Companion had violated California law by: (1) failing to pay the minimum wage (see Lab. Code, § 1194); (2) failing to state the “total hours worked by the employee” on an “itemized statement” at the time wages were paid (see id., § 226, subd. (a)); (3) failing to pay overtime compensation (see id., § 1194; Industrial Welfare Commission wage order No. 15-2001, §§ 3(A)(2), (C) (Wage Order)); and (4) failing to permit live-in employees to take three “hours free of duty” when working 12 consecutive hours (see Wage Order, § 3(A)(1)). The complaint alleged the existence of a class or subclass for each of these violations. A cause of action for violation of the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) was also included. As relief, the complaint sought, among other things, statutory penalties and liquidated damages. (See Lab. Code, §§ 203, 226.3, 1194.2, subd. (a).)
According to Rosal, the summons and complaint were properly served on American Companion, but American Companion did not file a response, timely or otherwise. The “Civil Case Summary” indicates that neither a default nor default judgment has been entered.
On May 1, 2007, Rosal filed a motion to certify the case as a class action. The motion was supported by several declarations, including one from Rosal, one from each of five similarly situated former employees, and one from Rosal’s attorney. A number of exhibits were also submitted.
The declarations of Rosal and the other former employees were virtually identical. Each stated that the declarant had been employed by American Companion and had not been paid the minimum wage or overtime compensation, had not received an itemized statement indicating the total hours worked at the time they were paid, and had not been allowed three hours of “free time” when they worked more than 12 consecutive hours.
The declaration of Rosal’s attorney, Mark Thierman, stated that a “true and correct copy of the report of the expert witness in this matter, David B. Thomas, MBA,” was attached as an exhibit, as was a true and correct copy of “a sampling of the payroll records.” The Thomas report was not in the form of a declaration or other sworn testimony. The payroll records bore the company name “Rancho La Costa.”
At the October 4, 2007 hearing on the motion, the trial court stated that the Thomas report was inadmissible, and the payroll records had no evidentiary connection to American Companion. Thierman said Thomas was an expert, and American Companion had changed its name to hide its assets. The trial court denied the motion. The court’s minute order, issued the same day, recited several reasons for the denial, including the lack of admissible evidence to establish the ascertainability of a class and the superiority of a class action.
II
DISCUSSION
“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. . . . [I]n the absence of other error, a trial court ruling supported by substantial evidence generally will not be disturbed ‘unless (1) improper criteria were used . . .; or (2) erroneous legal assumptions were made . . .’ . . . . Under this standard, an order based upon improper criteria or incorrect assumptions calls for reversal ‘“even though there may be substantial evidence to support the court’s order.”’ . . . Accordingly, we must examine the trial court’s reasons for denying class certification. ‘Any valid pertinent reason stated will be sufficient to uphold the order.’” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435–436, citations omitted.)
Under section 382 of the Code of Civil Procedure, a class action is authorized “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.” (Sav-on Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326.)
“As to the ascertainability question, its purpose is ‘“to give notice to putative class members as to whom the judgment in the action will be res judicata.” . . . “Class members are ‘ascertainable’ where they may be readily identified without unreasonable expense or time by reference to official records. . . .”’ . . . In determining whether a class is ascertainable, the trial court examines the class definition, the size of the class and the means of identifying class members.” (Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, 1206–1207, citation omitted.)
“A class action also must be the superior means of resolving the litigation, for both the parties and the court. . . . ‘Generally, a class suit is appropriate “when numerous parties suffer injury of insufficient size to warrant individual action and when denial of class relief would result in unjust advantage to the wrongdoer.” . . .’ . . . ‘[R]elevant considerations include the probability that each class member will come forward ultimately to prove his or her separate claim to a portion of the total recovery and whether the class approach would actually serve to deter and redress alleged wrongdoing.’ . . . ‘[B]ecause group action also has the potential to create injustice, trial courts are required to “‘carefully weigh respective benefits and burdens and to allow maintenance of the class action only where substantial benefits accrue both to litigants and the courts.’” . . .’” (Newell v. State Farm General Ins. Co. (2004) 118 Cal.App.4th 1094, 1101, citations omitted.)
In her opening, and only, appellate brief, Rosal argues that a class or, alternatively, subclasses, are ascertainable in light of the sample payroll records attached to Thierman’s declaration and the information contained in the Thomas report. But the payroll records are from a company named “Rancho La Costa.” Thierman’s explanation at the hearing on the certification motion — American Companion has changed its name — is not evidence (see Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1173), such that the payroll records are irrelevant. Similarly, we agree with the trial court that the Thomas report is inadmissible. Rosal cites no authority to the contrary. Thus, Rosal has not shown that a class or subclass is ascertainable.
Rosal relies on the same irrelevant and inadmissible evidence in asserting that a class action is superior. For example, she cites the Thomas report for the contention that there are potentially 830 class members and for Thomas’s estimate of the potential monetary recovery. The superiority determination requires the trial court to consider whether the employees will likely recover such “modest” amounts that they will lack the incentive to bring individual suits. (See Gentry v. Superior Court (2007) 42 Cal.4th 443, 457–458.) Again, there was no evidence before the trial court on either of those factors, making it impossible to resolve the issue of superiority. We note, however, that “[n]o set number [of class members] 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.)
Courts often find that wage-and-hour claims are appropriate for class action treatment. (See, e.g., Gentry v. Superior Court, supra, 42 Cal.4th at pp. 457–461; Bufil v. Dollar Financial Group, Inc., supra, 162 Cal.App.4th at p. 1208.) But no court has gone so far as to hold that all wage-and-hour claims must proceed as class actions regardless of the evidence — or lack thereof — submitted in support of certification. In essence, that is what Rosal asks us to do in this appeal. We decline to do so.
III
DISPOSITION
The order is affirmed.
We concur: ROTHSCHILD, J., HASTINGS, J.
Retired Associate Justice of the Court of Appeal, Second Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.