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
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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
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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
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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
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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.
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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.
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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
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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.
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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,
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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.)
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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
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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
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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
14
(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
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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
16
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
17
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.
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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
19
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
20
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.)
21
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.
22
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
23
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.
24
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
25
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
26
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
27
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
28
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,
29
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.)
30
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”].)