Diaz v. Mayer Roofing

Filed 2/23/07 Diaz v. Mayer Roofing CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Joan F. Burgess, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Affirmed.

Law Offices of Ellyn Moscowitz, Ellyn Moscowitz, and Brian Mikulak for Plaintiffs and Appellants.

Cooley Godward Kronish, Michael A. Attanasio, Seth A. Rafkin, and Aaron P. Arnzen for Defendant and Respondent.

Plaintiffs Julian Diaz and Miguel Cordova (plaintiffs) worked as roofers for defendant Mayer Roofing, Inc. (Mayer). They allege that Mayer failed to provide them with accurate pay stubs; failed to pay them for overtime work at overtime rates; and, in some instances, failed to pay them at all. They seek to maintain this as a class action on behalf of all of Mayers roofing employees who were treated ‑‑ or mistreated ‑‑ similarly.

Plaintiffs motion for class certification was supported by little more than their own testimony, complaining of their own mistreatment. In opposition to the motion, Mayer submitted testimony to the effect that it paid its roofers in full for all the work they did, including overtime; roofers were told not to work overtime without prior authorization, but if they did work overtime, they were paid for it.

Meanwhile, the San Diego District Attorneys office was apparently investigating whether Mayer had been falsifying employee timecards for the purpose of defrauding its workers compensation insurer. Ultimately, the San Diego Grand Jury returned indictments against 12 officers and employees of Mayer. Plaintiffs argued (somewhat belatedly) that the evidence generated in connection with the criminal investigation demonstrated that Mayers alleged actions were the result of a general practice and policy that affected most or all of its roofers, and not just plaintiffs alone. Mayer objected to almost all of this evidence on multiple grounds, including hearsay.

The trial court overruled Mayers evidentiary objections (or, more accurately, it assumed, for the sake of argument, that all of plaintiffs evidence was admissible). Nevertheless, it denied plaintiffs motion; it found that common questions of law and fact do not predominate over individual issues; the claims of the class representatives are not typical; and that class action is not superior to individual trials and will not confer a substantial benefit on both the court and the parties. Plaintiffs appeal.

We will hold that plaintiffs failed to submit any admissible evidence regarding the criminal investigation. In light of the admissible evidence, the trial court did not err.

I

PROCEDURAL BACKGROUND

On January 4, 2005, then-plaintiffs Julian Diaz, Arturo Cordero, Miguel Cordova, and Salustiano Morales filed this action against Mayer. (Case No. 423630.) On May 6, 2005, however, Morales filed a voluntary dismissal.

On July 22, 2005, Diaz, Cordero, and Cordova filed a separate action against Mayer and one of its principals, Paul Mayer. (Case No. 434180.) On September 28, 2005, pursuant to stipulation, the two cases were consolidated.

On November 28, 2005, Diaz and Cordova (without Cordero) filed a third amended complaint. The only named defendant was Mayer. They asserted causes of action for (1) unfair competition (Bus. & Prof. Code,  17200), (2) failure to pay wages when due (Lab. Code,  204), (3) failure to pay overtime, (4) secretly paying less than a designated wage scale (Lab. Code,  223), and (5) failure to provide an accurate itemized wage statement (Lab. Code,  226).^[1]

On December 12, 2005, Cordero filed a voluntary dismissal.

On January 10, 2006, the remaining plaintiffs filed a motion for class certification. The proposed class was defined, as relevant here, as the following sub-classes of all current and former roofing employees of Mayer Roofing, Inc. who, at any time from January 4, 2001 through the present (Class Period):

(a) were not provided with adequate wage statements;

(b) were not paid for all work performed;

(c) were not paid overtime for work over 8 hours in a day and 40 hours in a week . . . .

On March 23, 2006, the trial court held a hearing on the motion. At the end of the hearing, it took the motion under submission. On April 4, 2006, it denied the motion.

II

FACTUAL BACKGROUND

The following evidence was submitted in connection with plaintiffs motion for class certification.

A. Testimony of Mayers Witnesses.

At any given time, Mayer employed roughly 450 to 850 roofers. There was a high rate of turnover in the industry; thus, between January 2001 and January 2006, approximately 1,800 roofers left the company.

Mayer paid its roofers on a piecework basis. For every house, there would be a paysheet, listing the types of roofing work to be done, the number of units of each type of work required, and the resulting labor cost. For example, one particular house required 25.46 squares of lay (laying shingles or tile), totaling $280.04 (i.e., $11 per square); 25.46 squares of finish (finishing work), totaling $76.38 (i.e., $3 per square); 1.00 unit of paint, totaling $18 (i.e., $18 per unit); 163.50 units of mud (installing cement), totaling $89.93 (i.e., $0.55 per unit), and 22.00 feet of O‑Hagins (sheet metal), totaling $88 (i.e., $4 per foot), for a grand total of $664.35. Paysheets were distributed to project managers and foremen. Foremen would show them to the roofers before the work began.

Roofers then filled out daily or weekly timecards. A timecard would list each type of work done and the piecework amount due. However, it would also list the hours the roofer worked each day.

It was Mayers policy that roofers should not work overtime without prior approval from a project manager (or from the companys vice-president of operations). Roofers were so instructed. However, when roofers did report overtime on their timecards, they were paid for it.

Mayer had employees whose only job was to deliver materials and equipment to job sites. A project manager or foreman would make sure that the necessary materials had already been delivered before sending roofers out to a job site. Accordingly, it was very rare for a roofer to pick up or deliver materials. When roofers did report time spent picking up or delivering materials on their timecards, they were paid for that time.

Roofers who did repair work reported it on their timecards and were paid for it on an hourly basis. After February 2005, when Mayer established a separate customer service department, roofers generally no longer did repair work; however, if they did, they were still paid for that time.

B. Plaintiffs Own Testimony.

1. MayersObjections to Plaintiffs Testimony.

Mayer contends that the trial court should have sustained its objections to plaintiffs testimony.

a. Additional Factual and Procedural Background.

In support of their motion for class certification, plaintiffs filed excerpts from their own depositions. Mayer filed written objections to these excerpts. However, in support of its opposition, Mayer filed additional excerpts from plaintiffs depositions. In ruling on the motion, the trial court overruled Mayers evidentiary objections.

b. Discussion.

To the extent that Mayer introduced the exact same excerpts as plaintiffs did, we deem Mayers objections waived.

Mayer objected to some of the excerpts as incomplete, or as contradicted by other excerpts. This is not a valid evidentiary objection. Mayers remedy was to introduce additional excerpts (see Evid. Code,  356), which it did.

Mayer also objected to some of the excerpts as improper opinion, lacking foundation, and/or irrelevant. What Mayer was really arguing, however, was that its other officers and employees had contradicted plaintiffs (or plaintiffs had contradicted themselves). This went to the weight of the evidence, not its admissibility. Plaintiffs were qualified to testify about their own experiences.

Mayer objected to one excerpt as speculative. In it, plaintiff Cordova said he was guessing that on 90 percent of the projects on which he worked, he did some work that was not on the paysheets. In context, however, he clearly was making a helpful and permissible estimate.

We conclude that the trial court properly overruled Mayers objections.^[2] We therefore summarize plaintiffs testimony below.

2. Miguel Cordova.

Cordova started working for Mayer in October 2003. His first supervisor was Ron (or Rob) Williams. Later, his supervisor was Roberto Fonseca.

On almost . . . every job site, Cordova testified, he had to work overtime because materials had not been delivered, which caused him to fall behind. Once the lathers had already put on paper and chicken wire, it took him two or three times longer to install his ventilation than the paysheets said it should.

Sometimes, when materials had not been delivered, Cordova went to pick them up himself. This caused him to work overtime, for which he was not paid. Because driving was not listed on the paysheets, he could not put it on his timecard.

Cordova testified that he told both Williams and Fonseca that he was picking up materials. He also testified that they instructed him to pick up materials. When he told Fonseca that he needed material, Fonseca would reply, Well, you go get it yourself. At one point, however, Cordova admitted that no one asked him to pick up materials. He also admitted that Williams (unlike Fonseca) never made me do anything that wasnt paid for.

On one particular project, vents were delivered to the job site. The paysheets, however, did not mention vents. Cordova told his supervisor that, if he was going to install the vents, he had to do so before the lather put his stuff on . . . . He then went ahead and installed them. In later phases of the project, vents were listed on the paysheets at $35 per house. When Cordova asked to be paid for the vents he had already installed, however, he was offered just $5 per house. He estimated that he installed items that were not on the paysheet on 90 percent of the projects.

Cordova did customer service work many times. He defined this as repair work on a house thats already finished, [when] the people are already living in there. On two occasions, he reported this time on his timecard, but he was never paid for it, so he stopped reporting it.

Cordova admitted that, when he worked overtime, he did not put it down on his timecard. He explained that Fonseca had instructed him (and others) that, even if they worked overtime, their timecards had to show that they worked eight hours a day ‑‑ from 7:00 a.m. to 3:30 p.m., with half an hour off for lunch ‑‑ five days a week. If not, we would not get paid. Fonseca had also told him that his timecard had to indicate that he was getting paid $20 an hour. At least once, Cordova tried to claim overtime on his timecard, but it was rejected.

Cordova testified that he saw a paysheet only rarely.^[3] Project managers lost, erased [and] manipulated paysheets. Without a paysheet, Cordova did not have the information that he needed to fill out his timecard. He would have to turn it in blank. Sometimes, his supervisor would fill it in for him; other times, however, his supervisor would simply refuse to pay him. Accordingly, approximately 70 percent of his paychecks were for less than they should have been. There were roughly seven times that he did not get his weekly paycheck at all.

Cordova also testified that his supervisor had altered his timecard ‑‑ he took stuff off, and signed it, and then gave [him] a reduced check. At one point, Cordova admitted that he had never seen anybody actually scratch out or write something on [his] timecard[.] Later, however, he testified that he had [p]hysically seen a supervisor altering his timecard [a] few times.

2. Julian Diaz.

Diaz worked for Mayer from 1999 through 2002. His foreman paid him in cash for his first four months. During this time, he did not fill out timecards, and he did not know how his pay was calculated.

After that, he was paid with a company check. He regularly worked 10 or 12 hours a day, and on Saturdays. However, he was never paid overtime. His foreman told him not to put more than 40 hours a week on his timecard. Sometimes he filled out his own timecards; sometimes he signed them in blank, and his foreman filled them out later.

Paysheets were distributed before each job. Diaz did receive pay stubs with his paychecks; he reviewed them to make sure he had been paid for everything. If he found that he had not been paid for something, he would talk to his supervisor, and he would correct it the following week. That happened rarely. Sometimes, he was not paid for repair work that he did.

C. District Attorney Documents.

1. Additional Factual and Procedural Background.

When plaintiffs filed their reply papers, they also filed over 450 pages of documents that their counsel had received from the San Diego District Attorneys office. The documents included what appear to be reports by district attorneys investigators summarizing their interviews of 21^[4] former Mayer employees.^[5] They also included what appear to be Mayers employment records concerning plaintiffs Julian Diaz and Miguel Cordova (and former plaintiff Arturo Cordero), including their timecards.

On February 8, 2006, Mayer filed objections to these documents. The next day, February 9, 2006, Mayer filed a motion to strike them.

On March 23, 2006, at the hearing on the motion for class certification, the trial court agreed that Mayers hearsay objections, at least, were well taken. Nevertheless, it overruled all of Mayers objections, explaining,  . . . I think were best off if I just consider all the evidence.

2. Analysis.

Mayer contends that its hearsay and other objections to the district attorney documents should have been sustained.

The witness interviews were inadmissible hearsay. Arguably, the first level of hearsay statements ‑‑ the investigators reports that the witnesses made the statements ‑‑ could have been admitted under the official records exception. Plaintiffs, however, did not lay the necessary foundation. (See Evid. Code,  1280.) Moreover, the second level of hearsay statements ‑‑ the witnesses statements themselves ‑‑ were simply not admissible as evidence of their truth.

The employment records were likewise hearsay. Presumably they could have been admitted under the business records exception; once again, however, plaintiffs did not lay the necessary foundation. (Evid. Code,  1271.) In any event, the employment records do not appear to be particularly relevant to any of the issues raised in this appeal; certainly plaintiffs do not cite them.

We wish to emphasize that the trial court did not necessarily err by overruling Mayers objections. We understand as well as anyone the utility and efficiency of assuming away all but one issue, when that issue appears to be dispositive. Thus, the trial court was entitled to assume, without deciding, that all of plaintiffs evidence was admissible, once it concluded that, even if so, plaintiffs should not prevail. We simply choose to proceed differently. Accordingly, we will disregard the district attorney documents.

D. Roldan Declarations.

1. Additional Factual and Procedural Background.

After plaintiffs had already filed their reply papers, they filed nine additional declarations in support of their motion. Plaintiffs counsel explained that the declarants were Mayer employees who had contacted them while the motion was pending. All nine declarants had the family name Roldan. Accordingly, these came to be known as the Roldan declarations.

Mayer objected to the Roldan declarations and moved to strike them. However, it has not renewed these objections on appeal. Accordingly, we will consider the Roldan declarations.

2. The Testimony of the Roldan Declarants.

The Roldan declarations were essentially questionnaires; they allowed each declarant to check Yes or No next to a series of statements that were identical in each declaration. Accordingly, by checking Yes, each declarant testified:

I am/was employed by Mayer Roofing, Inc. . . . as a roofer . . . .

While working for Mayer, the company regularly failed to pay me for all hours worked.

While working for Mayer, I regularly work(ed) more than eight hours in a day and more than forty hours in a week and I am/was not paid overtime.^[6]

While working for Mayer, the company told me not to report all of my hours on my timecard.

While working for Mayer, the company changed my hours reported and/or my timecards and/or their time logs and/or records.

E. Grand Jury Indictment and Transcripts.

1. Additional Factual and Procedural Background.

Two days before the hearing on the motion, plaintiffs filed a request for judicial notice of (1) the transcripts of certain grand jury testimony^[7] and (2) the resulting grand jury indictment of 12 individual officers and employees of Mayer.^[8]

One day before the hearing, Mayer filed an opposition to the request for judicial notice. It objected to the grand jury materials as untimely and irrelevant. Because it had not had enough time to assess, address and object to the materials, it reserve[d] all other objections.

At the hearing on the motion for class certification, the trial court began by denying the request for judicial notice. Plaintiffs counsel argued, however: [I]f you deny the motion, Ill just move for reconsideration of newly discovered evidence of the grand jury. The trial court therefore changed its mind; it took the motion under submission so it could consider the grand jury materials, along with the issues to which they related; it explained: If I look at it and I believe it somehow changes my analysis[,] Id set it for a further hearing. If I review it and it does not in any way change my analysis, its no harm, no foul. . . . And then we dont have to come in here and go through more expense on a motion for reconsideration. Accordingly, in its subsequent order, it stated that it had reviewed and considered the grand jury transcript . . . .

2. Analysis.

Mayer contends that the grand jury materials were untimely, improperly authenticated, and hearsay.

The grand jury materials were not subject to judicial notice as evidence in support of the motion. Certainly judicial notice may be taken of court records. (Evid. Code,  452, subd. (d).) However, this does not allow an end run around the hearsay rule. Accordingly, judicial notice can be taken of the existence and effect of court documents; but judicial notice cannot be taken that the matters stated in them are true. (Kilroy v. State of California (2004) 119 Cal.App.4th 140, 145-150; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1569.)

To illustrate, we may take judicial notice of the indictment. Thus, we can take judicial notice of the legal effect of the indictment ‑‑ that the 12 named defendants have been charged with conspiracy and other crimes. However, we cannot take judicial notice that those defendants actually committed these crimes. Likewise, we cannot take judicial notice that the testimony of the witnesses before the grand jury was true. (Williams v. Hartford Ins. Co. (1983) 147 Cal.App.3d 893, 899.)

For the sake of completeness, we recognize that there is a hearsay exception for former testimony. (Evid. Code,  1291, subd. (a), 1292, subd. (a).) That exception, however, applies only if the declarant is unavailable, and even then only if there was an opportunity to cross-examine the declarant in the former proceeding. (Ibid.) Witnesses before a grand jury are not subject to cross-examination. (Hawkins v. Superior Court (1978) 22 Cal.3d 584, 587.) Accordingly, it is hornbook law that grand jury testimony is not admissible under this hearsay exception.

Admittedly, although Mayer objected below, it did not specifically object that the grand jury materials were hearsay. (See Evid. Code,  353, subd. (a).) Because plaintiffs were requesting judicial notice of the grand jury materials, however, the objection that Mayer had not been given sufficient notice of the request was, in itself, meritorious. (See Evid. Code,  453, subd. (a).) Moreover, because plaintiffs served these materials just two days before the hearing, Mayer did not have a reasonable opportunity to make its written objections more specific. Indeed, technically, it was too late for Mayer to serve written objections at all. It did what it could by expressly reserving any other objections. Finally, Mayer had no reason to raise new or additional objections at the hearing, because the trial court expressly promised not to grant the motion based on the grand jury materials without setting a further hearing. Under these circumstances, Mayers failure to object specifically on hearsay grounds did not constitute a waiver. (People v. Kitt (1978) 83 Cal.App.3d 834, 848, disapproved on other grounds in People v. Cooper (1991) 53 Cal.3d 771, 836.)

We will therefore disregard the grand jury materials.

III

THE TRIAL COURTS RULING

The trial court explained its denial of the motion as follows:

[T]he court finds that common questions of law and fact do not predominate over individual issues; the claims of the class representatives are not typical; and that class action is not superior to individual trials and will not confer a substantial benefit on both the court and the parties.

While the class members in the instant case would consist of all former roofing employees of defendant from 2001 to present, and thus could be identified and controlled and located through payroll, the court does not believe there is commonality or typicality present. It appears to the court that this case would involve a multitude of mini[‑]trials if the matter was certified for class action. Whether or not a particular employee was or was not paid over time [sic], and was or was not paid for all piecemeal work performed, would vary from employee to employee, job site to job site, and would be based on a multitude of factors so that no meaningful generalization could be made. This is not a case where review of the employment record would allow an expert to prove analytical analysis. In fact, the evidence submitted by plaintiffs themselves suggests this as several of the employees claim they did not work overtime and that they were paid for the hours worked.

Furthermore, the court finds that plaintiff has not explained to this court with sufficient detail as to what issues could be tried jointly versus separate adjudication so as to be advantageous. Predominance is a comparative concept. Here, the court does not see how the individual issues could be effectively managed through class certification. Moreover, the named class representatives do not seem to have claims typical. Two have already dismissed their claims and the excerpts from the remaining plaintiffs deposition transcripts do not address the typicality issue with enough facts to establish to this court that their claims are typical.

The predominant issue in this case is the failure to pay the roofers for piecework, which would require an individualized inquiry with respect to each claim. Likewise, the failure to pay overtime would require an individualized inquiry with respect to each claim in that the way the records were kept would not allow for an analytical generalization of any type. Furthermore, to the extent Labor Code  226 does allow for a penalty of up to an aggregate of $4,000 per employee, that cause of action in and of itself does not appear to be the predominant issue, and furthermore, it also would appear to require an individualized inquiry as to each employee.

The court relies on the holding in Gattuso v. Harte-Hanks Shoppers, Inc. (2005) 133 Cal.App.4th 985 which supports denial of the motion.

IV

DISCUSSION

A. Applicable Legal Principles.

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. [Citations.] But because 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. [Citation.] (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435, quoting Blue Chip Stamps v. Superior Court (1976) 18 Cal.3d 381, 385, quoting City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 459.)

The ultimate question . . . 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.] (Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1104-1105, quoting Collins v. Rocha (1972) 7 Cal.3d 232, 238.)

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. [Citation.] 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. [Citation.] (Sav-on Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326.)

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. [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]. . . . Accordingly, we must examine the trial courts reasons for denying class certification. Any valid pertinent reason stated will be sufficient to uphold the order. [Citation.] (Linder v. Thrifty Oil Co., supra, 23 Cal.4th at pp. 435-436, quoting Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470 and Caro v. Procter & Gamble Co. (1993) 18 Cal.App.4th 644, 656.)

The certification question is essentially a procedural one that does not ask whether an action is legally or factually meritorious. [Citation.] (Sav-on Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 326, quoting Linder v. Thrifty Oil Co., supra, 23 Cal.4th at pp. 439-440.) [W]e consider whether the theory of recovery advanced by the proponents of certification is, as an analytical matter, likely to prove amenable to class treatment. [Citations.] Reviewing courts consistently look to the allegations of the complaint and the declarations of attorneys representing the plaintiff class to resolve this question. [Citation.] (Id. at p. 327, quoting Richmond v. Dart Industries, Inc., supra, 29 Cal.3d at p. 478.) But, [w]here 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. [Citations.] (Id. at p. 328, quoting Massachusetts Mutual Life Ins. Co. v. Superior Court (2002) 97 Cal.App.4th 1282, 1287.)

B. Application to These Facts.

Plaintiffs argue that the trial court erred by finding that their claims were not common or typical. Although plaintiffs are technically correct, the error not only was harmless, but was invited by plaintiffs themselves.

Plaintiffs defined the class in terms of liability. Thus, it consisted of those Mayer roofers who either (1) were not paid overtime, (2) were not paid for all work performed, or (3) were not provided with adequate wage statements. Plaintiffs deposition testimony established that plaintiffs themselves were not paid overtime, were not paid for all work performed, and were not provided with adequate wage statements. Accordingly, their claims were both common and typical. Q.E.D.

But common to, and typical of, how many others? Plaintiffs own deposition testimony merely showed that they were members of a somewhat rarefied class of two. Plaintiffs therefore argued ‑‑ citing the Roldan declarations, the district attorney documents, and the grand jury materials ‑‑ that Mayer had a broad general policy and practice of failing to pay overtime, failing to pay for all work performed, and failing to provide adequate wage statements. Thus, all (or essentially all) of Mayers roofers were members of the class. Plaintiffs concluded that their own claims were both common and typical.

This argument, however, was mislabeled. It does not go to commonality or typicality; rather it goes to whether class action treatment would be superior to individual adjudication. Superiority, in turn, subsumes issues of numerosity and ascertainability. If there are only two members in the class, then it cannot be said that a class action will provide substantial benefits to both the courts and the litigants. Likewise, if minitrials will be necessary to identify the class members, a class action is not superior to individual trials.

Recently, in Sony Electronics Inc. v. Superior Court (2006) 145 Cal.App.4th 1086, the court noted that a class defined in terms of liability may, as a result, not be ascertainable. Ascertainability is required to ensure that all putative class members receive notice of the action and that the resulting judgment will have res judicata effect as to those class members. [Citation.] (Id. at p. 1094.) It held that the class in the case before it was not ascertainable: [T]he class consists of purchasers of GRX Series Notebook computers that have inadequate soldering of the memory slot connector pins. Unfortunately, because there is no evidence showing that this alleged manufacturing defect is universal to all GRX Series Notebook computers, the class definition requires a merits-based determination in order to establish whether a particular GRX Series Notebook owner is a member of the class. The members of such a class are thus not readily identifiable so as to permit appropriate notice to be given and the definition would not permit persons who receive notice of this action to determine whether they are part of the class. [Citations.] For these reasons, the class definition is flawed. (Id. at pp. 1096-1097.)

Here, the trial court clearly understood that superiority (however denominated) was the key question before it. It expressly found that [a] class action is not superior to individual trials and will not confer a substantial benefit on both the court and the parties. It additionally found that: It appears to the court that this case would involve a multitude of mini[-]trials if the matter was certified for class action. Whether or not a particular employee was or was not paid over time [sic], and was or was not paid for all piecemeal work performed, would vary from employee to employee, job site to job site, and would be based on a multitude of factors so that no meaningful generalization could be made. Further, Labor Code  226 . . . also would appear to require an individualized inquiry as to each employee.

Mayer argues that plaintiffs failed to challenge the trial courts finding with respect to superiority in their opening brief and hence have waived any such challenge. Actually, they did address it, only, as the trial court did, under the rubric of typicality, rather than superiority. For example, plaintiffs argued that their claims were typical because it assertedly was Mayers standard operating procedure, with respect to all of its roofing employees, not to pay overtime, not to pay for all work performed, and not to provide accurate wage statements. Plaintiffs cited the Roldan declarations and the grand jury materials in support. Accordingly, plaintiffs did not waive the issue.

However, the trial courts finding that a class action would not be superior to individual trials is supported by substantial evidence. Indeed, because plaintiffs had the burden of proof on this issue, [a]bsent indisputable evidence [to the contrary] ‑‑ evidence no reasonable trier of fact could have rejected ‑‑ we must . . . affirm the [trial] courts determination. (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.)

All of the evidence that plaintiffs offered to show that there were other members of the class was inadmissible, except for the Roldan declarations. Arguably, the Roldan declarations did suffice to show that there were nine more potential class members. The Roldan declarations, however, were hopelessly conclusory. For example, each of them stated, While working for Mayer, the company changed my hours reported and/or my timecards and/or their time logs and/or records. Given the liberal use of and/or, all this really said was that the company changed my records. The declarants did not explain how or why they were not paid overtime or were not paid for all hours worked. There was nothing to show that their experience was anything like Cordovas or Diazs. Thus, there was nothing to show that there was any culpable policy or practice on Mayers part.

Admittedly, there were occasional hints in plaintiffs own testimony that their experience was not entirely unique. For example, Cordova testified that Fonseca instructed us not to report overtime on a timecard. He also testified that, on one particular project, we fell behind because of the lack of material. (Italics added.) Diaz testified that most of the time we worked from sun up to sun down . . . . Sometimes ten, twelve hours. [W]e worked even on Saturdays. (Italics added.) This fell far short, however, of showing that the class was numerous enough and ascertainable enough that class treatment would be superior to individual adjudication.

If only out of an excess of caution, we note that we are not holding that class certification turned on the merits of plaintiffs cause of action. (Cf. Linder v. Thrifty Oil Co., supra, 23 Cal.4th at pp. 440-444.) Plaintiffs own testimony was sufficient to demonstrate that they, as individuals, had meritorious claims. Moreover, precisely because the class was defined in terms of liability, other class members (if they existed), by definition, also had meritorious claims. However, issues affecting the merits of a case may be enmeshed with class action requirements, such as whether substantially similar questions are common to the class and predominate over individual questions or whether the claims or defenses of the representative plaintiffs are typical of class claims or defenses. [Citations.] (Id. at p. 443.) We see no way to assess the numerosity of a class defined in terms of liability without, in some limited sense, considering the merits.

Plaintiffs argue that the trial court used improper criteria or erroneous legal assumptions (see Linder v. Thrifty Oil Co., supra, 23 Cal.4th at pp. 435-436) because it denied class certification based on the need for individualized determinations as to damages. We do not agree that that is what it did. It never used the word damages. Rather, it stated that no meaningful generalization could be made as to [w]hether or not a particular employee was or was not paid over time [sic], and was or was not paid for all piecemeal work performed . . . . Thus, it denied the motion based on the need for individualized determinations as to liability.

This reasoning is all the more compelling when viewed in the context of numerosity and ascertainability, rather than commonality and typicality. Because the class was defined in terms of liability, just figuring out how many class members there were and who should be given notice would require individualized determinations as to liability. The trial court could reasonably consider this unduly burdensome.

Plaintiffs also argue that [w]age and hour disputes (and others in the same general class) routinely proceed as class actions. [Citation.] (Quoting Aguiar v. Cintas Corp. No. 2 (2006) 144 Cal.App.4th 121, 138, quoting Prince v. CLS Transportation, Inc. (2004) 118 Cal.App.4th 1320, 1328.) In general, however, when wage and hour and other labor disputes have been allowed to proceed as class actions, the class has not been defined in terms of liability; also, the class representatives have shown (or the defendant employer has not disputed) that all or most class members were treated similarly.

For example, in Aguiar, the City of Los Angeles had adopted a Living Wage Ordinance (LWO) (Aguiar v. Cintas Corp. No. 2, supra, 144 Cal.App.4th at p. 124), which required employers that had service contracts with the city to pay a minimum wage to their employees who worked on those contracts. (Id. at p. 125; see also id. at p. 133.) The plaintiffs alleged that their employer had failed to comply with the LWO. (Id. at p. 128.) The proposed class was defined as all employees who had worked on the employers city contracts. (Id. at pp. 128-129; see also id. at pp. 134-136.) The trial court denied class certification. (Id. at pp. 130-131.)

The appellate court, however, reversed. (Aguiar v. Cintas Corp. No. 2, supra, 144 Cal.App.4th at pp. 135-139.) First, it explained, the class could be readily ascertained from the employers payroll records. (Id. at p. 136.) Second, the plaintiffs claims were both common and typical, partly because the plaintiffs theory of the case (ibid.) was that the employer had simply failed to comply with the LWO. (Id. at pp. 136-138.) Third, a class action was superior: Plaintiffs evidence suggests the putative class consists of more than 300 employees, a group sufficiently numerous to justify class treatment; and the claims of each of the employees are of insufficient size to warrant individual action. (Id. at p. 138; see also Sav-on Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at pp. 326-332 [class defined as defendants operating managers and assistant managers; evidence showed that defendant had policy and practice of deliberately misclassifying managers as exempt; held, trial court did not abuse discretion by certifying class]; Bell v. Farmers Ins. Exchange (2004) 115 Cal.App.4th 715, 742-746 [class defined as defendants claims representatives; on motion for decertification, defendant showed that marginal element of class ‑‑ approximately 5.7 percent of class members ‑‑ had no overtime claim; held, trial court did not abuse discretion by refusing to decertify class].)

Here, by contrast, plaintiffs have not offered sufficient evidence that Mayer will be held liable to all or most of its roofer employees on the same basis that it is liable to them. Thus, they have not shown that the class ‑‑ which they have chosen to define in terms of liability ‑‑ is so ascertainable and so numerous that class treatment would be beneficial.

C. The Trial Courts Reliance on Gattuso.

Plaintiffs contend that the trial court erred by citing and expressly relying on a depublished case, Gattuso v. Harte-Hanks Shoppers, Inc. (2005) 133 Cal.App.4th 985.

Mayer had cited Gattuso in its opposition. Accordingly, plaintiffs had attempted to distinguish Gattuso in their reply. The Supreme Court then granted review in Gattuso (Feb. 22, 2006, S139555). Nevertheless, in its subsequent ruling, the trial court stated that it was rel[ying] on Gattuso.

Plaintiffs waived this particular contention by failing to raise it below. At the hearing on the motion ‑‑ one month after the Supreme Court had already granted review â€‘‑ the trial court stated:  . . . Ive looked at the G[a]ttuso . . . case, at length. [] Quite frankly, the G[a]ttuso [case] seems to support defendants position. Nevertheless, plaintiffs did not point out to the trial court, then or at any other time before or after the trial court issued its ruling, that Gattuso was no longer citable authority.

Even if not waived, the point lacks merit. The trial courts citation of Gattuso did violate former California Rules of Court, rule 977(a). (See now Cal. Rules of Court, rule 8.1115(a).) Thus, technically, the trial court erred. Plaintiffs, however, have not shown that this error was prejudicial to them in any way. It therefore is not grounds for reversal. (Cal. Const., art. VI,  13; Code Civ. Proc.,  475.)

V

STAY OF DEPOSITIONS

Plaintiffs contend that the trial court erred by refusing to allow them to conduct certain discovery, which they claim was essential to their class certification motion.

A. Additional Factual and Procedural Background.

On July 28, 2005, plaintiffs noticed the depositions of Paul Mayer and David Archer (deponents) for September 12 and 13, 2005, respectively. It was apparently undisputed that the deponents were the sole shareholders in Mayer, as well as officers of the corporation.

On September 2, 2005, the deponents^[9]filed a motion to stay their depositions until the conclusion of the pending criminal investigation.^[10] They argued that, [a]bsent such relief, [they] will be forced to choose between their basic constitutional right to remain silent and their practical ability to defend themselves and their company . . . .

Plaintiffs opposed the motion. They argued that the deponents could invoke the privilege on a question-by-question basis but could not invoke it to put off being deposed entirely. They also argued that, if the motion were granted, they would be prejudiced: Delay . . . will unavoidably add to the number of class members the claims administrator will be unable to locate, effectively resulting in forfeiture of restitution for [their] unpaid wages . . . .

On October 18, 2005, the trial court ordered the depositions stayed, but only through February 21, 2006.^[11]

Meanwhile, on January 10, 2006, plaintiffs filed their motion for class certification.

On January 18, 2006, the deponents filed a renewed motion to stay their depositions. It does not appear that plaintiffs filed any opposition to this motion. Accordingly, on March 7, 2006, the trial court granted it.^[12]

B. Analysis.

Preliminarily, we question whether we can even reach this contention in an appeal to which the deponents are not parties. Before we could hold, in their absence, that the stay order was erroneous, we would have to confront and decide a serious due process issue. It is arguable that, for this reason, an appeal is an inadequate remedy, and plaintiffs therefore had to raise their contention (if at all) by way of an extraordinary writ petition. It is even arguable that the stay order itself was appealable, so that plaintiffs forfeited their present contention by failing to file a timely appeal from it. (Cf. Brun v. Bailey (1994) 27 Cal.App.4th 641, 648-651 [order denying nonparty deponents motion for protective order requiring payment of expert witness fees was immediately appealable].)

By contrast, we perceive no due process obstacle to rejecting this contention, even in the absence of the deponents. And, ultimately, we do reject it. Accordingly, we will proceed.

Plaintiffs waived their current contention by failing to raise it below. Although they did oppose the first stay motion, they did not do so on the ground that a stay would prevent them from obtaining necessary discovery. Instead, they argued that a stay would cause delay; however, once the stay had been granted, they went ahead and filed the class certification motion anyway. Thus, evidently, at least in their opinion, the testimony of the deponents was in no way essential to the class certification motion. Similarly, in connection with the class certification motion itself, plaintiffs never asserted that they had been handicapped by their inability to take the stayed depositions.

Separately and alternatively, any error in granting the first stay motion was harmless. That stay was only temporary; it expired on February 21, 2006. Admittedly, the minute order granting the motion was somewhat ambiguous. It stated, Motion is granted. [] Case is ordered stayed through 2/21/06. (Capitalization altered.) This could be read to mean that the trial court stayed the depositions indefinitely, as requested in the motion, but it stayed all other proceedings in the case until February 21, 2006. However, there was no motion pending to stay all other proceedings; there was no apparent reason for either side to request such a stay, or for the trial court to grant one. In fact, other aspects of the case proceeded apace. For example, among other things, plaintiffs filed their motion for class certification! On the other hand, on January 18, 2006, the deponents filed a renewed motion to stay their depositions. Moreover, they set it for hearing on February 22, 2006^[13]‑‑ almost exactly when the existing stay was due to expire. Thus, in context, it is clear that the trial court stayed the depositions until February 21, 2006.

In this appeal, plaintiffs challenge only the order granting the first stay motion. They do not so much as mention ‑‑ much less challenge ‑‑ the order granting the renewed stay motion. In any event, they waived any error in granting the renewed stay motion by failing to oppose it.

VI

DISPOSITION

The order appealed from is affirmed. Mayer is awarded costs on appeal against plaintiffs.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

RAMIREZ

P.J.

McKINSTER

J.

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^[1] Mayers demurrer to a sixth cause of action, for failure to include required information in construction contracts (Lab. Code,  2810), was sustained.

^[2] This is not to say that other objections might not have been well taken. Plaintiffs failed to show that they had been placed under oath at the depositions. (See Code Civ. Proc.,  2025.330, subd. (a), 2025.540, subd. (a).) They also failed to show that the deposition officer had certified the transcript. (See Code Civ. Proc.,  2025.540, subd. (a).) In any event, we question whether a party can introduce his or her own deposition (as opposed to declaration) in connection with a motion. (See Code Civ. Proc.,  2025.620, Evid. Code,  1200, subd. (b), 1220.)

^[3] He admitted, however, that the supervisors always had a copy of the paysheet.

^[4] Two of the witnesses were members of the Roldan family, of whom more later. (See part II.D, post.)

^[5] The thrust of the investigation ‑‑ and the gist of the interviews ‑‑ was that Mayer had fraudulently classified some roofers as High Wage rather than Low Wage for workers compensation purposes. This enabled Mayer to pay artificially low workers compensation premiums.

As part of this scheme, Mayer falsified roofers timecards, by reducing the number of hours worked while increasing the pay rate per hour; that way, the roofers total paycheck would be the same, but the roofer would appear to qualify as High Wage. Some roofers were told to divide the amount due them (on a piecework basis) by the fictitious pay rate of $20 or $25 an hour and to use the result as the number of hours worked.

In the course of the investigation, some (but not all) of the witnesses reported working more than eight hours a day or more than five days a week. Within this subgroup, some (but not all) also reported that they had not been paid for the overtime. A handful of witnesses added that they had not been paid for all of the work they did. On the other hand, a few witnesses specifically said that, although their timecards were not accurate, they were paid the correct total amount due.

^[6] One declarant checked No to this.

^[7] Ten of the witnesses at the grand jury hearings (including two of the Roldan declarants) had also been interviewed by the district attorneys investigators.

^[8] Much like the district attorneys interviews, the gist of the grand jury testimony was that Mayer had fraudulently classified some roofers as High Wage rather than Low Wage for workers compensation purposes.

The resulting indictment charged the defendants with three counts of workers compensation insurance premium fraud (Ins. Code,  11880, subd. (a)) and one count of conspiracy to commit workers compensation insurance premium fraud (Pen. Code,  182, subd. (a)(1)).

^[9] Beginning on September 28, 2005, when case No. 423630 was consolidated with case No. 434180, and ending on November 28, 2005, when plaintiffs filed their third amended complaint, Paul Mayer was a party to this action. Otherwise, both Paul Mayer and David Archer were nonparties. (See Firemans Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1142, and cases cited.)

^[10] Plaintiffs have not favored us with the entire motion. The appellate record includes the memorandum of points and authorities and the supporting declaration of Michael A. Attanasio, but not the notice of motion or the supporting declaration of Aaron P. Arnzen.

^[11] Plaintiffs have not included a reporters transcript of the hearing on the motion in the appellate record.

^[12] Plaintiffs have not included the motion, the trial courts order granting the motion, or a reporters transcript of the hearing on the motion in the appellate record.

^[13] The hearing was subsequently continued to March 7, 2006.