Lin v. Bell Gardens Bicycle Club

Filed 9/27/06 Lin v. Bell Gardens Bicycle Club CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from an order of the Superior Court of Los Angeles County, Ralph W. Dau, Judge. Affirmed.

Spiro Moss Barness Harrison & Barge, Dennis F. Moss and David M. Arbogast for Plaintiffs and Appellants.

Ballard, Rosenberg, Golper & Savitt, Stephen R. Lueke, Jeffrey P. Fuchsman, and John J. Manier for Defendants and Respondents.

____________________

INTRODUCTION

Plaintiffs Judy Lin, Yoon Chang and Margret Greenbach appeal from an order denying a motion for class certification in an action brought on behalf of persons currently and formerly employed as dealers at defendants’ Bell Gardens Bicycle Club Casino (Casino). We affirm.

FACTS

All plaintiffs have been employed as dealers in the Casino. Plaintiffs Judy Lin and Yoon Chang continue as dealers in the Asian Games section, and plaintiff Margret Greenbach was a dealer in the Poker section prior to leaving the Casino.

On October 22, 2003, plaintiffs filed the original complaint herein and promptly filed the first amended complaint two days later. As a result of successful challenges by defendants, plaintiffs filed a second and a third amended complaint. In their third amended complaint, plaintiffs alleged that the dealers employed at the Casino were victims of defendants’ company-wide policies and illegal practices applied uniformly to all dealers, including: (1) taking a portion of tips given directly to dealers by patrons (tip pool claims); (2) denying dealers half-hour uninterrupted meal breaks in violation of California law; and (3) failing to pay dealers for the first 15 minutes they were required to be on premises each work day prior to clocking in for work.

Pursuant to defendants’ notice of related case, the trial court, Judge Dau, ruled that the instant case is related to Los Angeles Superior Court No. BC231920, Lee v. The Bicycle Club Casino (Lee), filed June 16, 2000 and also assigned to Judge Dau. Lin and Chang were also plaintiffs in the Lee case and the defendants were essentially the same as defendants herein. The primary allegations related to tip pooling practices, which are also challenged in the instant action. On December 5, 2001, Judge Dau dismissed the Lee case as a sanction against Lin, Chang and the other plaintiffs for their discovery abuses. The Lee plaintiffs appealed. The California Court of Appeal, Second District, Division Four affirmed the dismissal in its decision filed on December 18, 2003, almost two months after plaintiffs filed the instant action. (Lee v. The Bicycle Club Casino (Dec. 18, 2003, B161404) [nonpub. opn.].)

On July 20, 2004, plaintiffs filed a motion for class certification. After extensive briefing by the parties, a hearing was held on August 17, 2004. The court provided the parties with its written tentative ruling to deny the class certification motion without prejudice and give plaintiffs leave to amend the complaint to name new class representatives and address the court’s concerns discussed in the remainder of the tentative ruling. The first area of concern was that the class was unascertainable, in that plaintiffs failed to propose a class definition, and there was insufficient evidence in the record to identify each class member by name and obtain contact information. The second area of concern was that there was an insufficient showing of common questions of law or fact. One factor was that there was no showing of merit to the tip pooling causes of action. Another factor was that Lin and Chang, Asian game dealers, were inadequate class representatives, in that they are unreliable as indicated by their discovery abuses in the Lee case and affected by res judicata based on the Lee case. Greenbach was a poker dealer, not an Asian games dealer, and thus was an inadequate representative of class members who are Asian game dealers. After the hearing, the trial court took the matter under submission. About six weeks later, the trial court issued its final decision.

In its final decision on the class certification motion, filed October 1, 2004, the trial court sustained plaintiffs’ evidentiary objections to a declaration by defendants’ attorney, and made the following findings with respect to class certification: (1) Plaintiffs failed to propose a definition of the class. (2) Plaintiffs failed to make “even a minimal showing that the tip pool claims in this action have merit.” They offered no evidence that any defendants or their agents or employees got money from the tip pool. (3) Plaintiffs Lin and Chang are not adequate representatives of the proposed class. The December 5, 2001 dismissal of these two plaintiffs for discovery abuses in Lee was affirmed on appeal “over six months before movants filed this motion” and is res judicata. Plaintiffs’ counsel were “well aware of that appeal,” as they represented plaintiffs in it, yet they did not seek to amend the complaint to add new plaintiffs. (4) Plaintiff Greenbach is not an adequate representative of Asian games dealers.

Based on those findings, the trial court ordered that class certification be denied for the tip pool causes of action. As to the remaining causes of action, class certification was denied without prejudice, and plaintiff Greenbach was granted leave to refile the class certification motion within 10 days. The notice of motion had to contain a proposed definition of the class. In their subsequent notice of appeal, plaintiffs stated they were appealing from the October 1, 2004 order on motion for class certification denying class certification as to all class claims. The record reflects that, rather than plaintiff Greenbach refiling on the remaining causes of action, all plaintiffs joined in the appeal as to all class claims.

DISCUSSION

Standard of Review

In a class action such as the instant case, a trial court’s class certification order will not be disturbed on appeal if it is supported by substantial evidence, unless improper criteria were used or erroneous legal assumptions were made. (Sav-on Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326-327 (Sav-on).) The reviewing court must presume, in favor of the certification order, the existence of every fact the trial court could reasonably deduce from the record. (Id. at p. 329.) If the certification decision turns on inferences drawn from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. (Id. at p. 328.) Because a trial court is ideally situated to evaluate permitting a class action, the trial court has great discretion in granting or denying a certification order, and “‘”[a]ny valid pertinent reason stated will be sufficient to uphold the order.”’ [Citations.]” (Id. at pp. 326-327.)

Criteria for Class Certification

Class actions are authorized by Code of Civil Procedure section 382.[1] Plaintiffs have the burden to establish that all requirements for class certification are met. (Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1104 (Lockheed).) Plaintiffs must establish both an ascertainable class and a well-defined community of interests among the class members. (Ibid.) To establish an ascertainable class, the factors to be considered are (1) the class definition, (2) the class size, and (3) available means for identifying class members. (Global Minerals & Metals Corp. v. Superior Court (2003) 113 Cal.App.4th 836, 858.) The class definition must be precise, objective and presently ascertainable, not vague or overbroad. (Id. at pp. 858, 860.) The three factors required to establish a “community of interest“ are that: (1) common questions of law or fact predominate over individual questions; (2) class representatives have claims or defenses typical of the class; and (3) class representatives can adequately represent the class. (Lockheed, supra, at p. 1104.)

Although a hearing on class certification is not a final resolution of the merits of a claim, when the merits are intertwined with class action requirements, the trial court must consider whether there is any admissible evidence bearing on an alleged factual element. (Bennett v. Regents of University of California (2005) 133 Cal.App.4th 347, 357.) “In an exceptional case, where the parties have had notice and an opportunity to brief the issue, class certification may be refused because a claim lacks merit as a matter of law.” (Id. at p. 355.)

In determining whether a class is to be certified, the ultimate question is whether the issues to be jointly tried, as compared to separately, are sufficiently numerous and substantial to make the class action advantageous to the courts as well as the litigants. (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 460.) Plaintiffs must establish by a preponderance of the evidence that the class action proceeding is “‘superior to alternate means for a fair and efficient adjudication of the litigation.’” (Sav-on, supra, 34 Cal.4th at p. 326.)

Definition Required for Ascertainable Class

Plaintiffs first claim the trial court erred in ruling that the plaintiffs failed to propose a definition of the class. Plaintiffs set forth purported definitions for three classes in their memorandum of points and authorities in support of the motion for class certification,[2] rather than the single class definition alleged in their third amended complaint.[3]

In its tentative ruling on the certification motion, the trial court expressly put plaintiffs on notice that the three class definitions they proposed were inadequate and that the court was willing to allow plaintiffs to amend the complaint to correct the class definition. After acknowledging and reciting plaintiffs’ three class descriptions, the trial court stated: “Plaintiff, however, fails to propose a definition of the class. The definition(s) should include . . . the three alleged policies and practices . . . over what appropriate time period. If all dealers are equally affected by the policies at issue, the only difference between the three classes would be the time period.” During the six weeks between the tentative ruling and the final decision, both parties submitted additional briefing. Nothing in the record indicates, however, that plaintiffs took any affirmative steps to resolve the class definition question.

Indeed, plaintiffs claim that it was the trial court’s responsibility to redefine the class, and the trial court erred in declining to do so. Plaintiffs rely on Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal.App.4th 908 (Hicks). In Hicks, the reviewing court indicated that if the trial court determines a plaintiff’s class definition is problematic, the role of the court is not to deny certification but rather to “redefine the class where the evidence before it shows such a redefined class would be ascertainable.” (Id. at p. 916.) The Hicks court’s statement confirms a trial court’s authority to redefine a class in certain circumstances. The duty to define the class, however, rests squarely with the plaintiffs, not the court. (Lockheed, supra, 29 Cal.4th at p. 1104.)

Defendants assert on appeal that the trial court could have reasonably concluded that plaintiffs’ proposed class definitions were overbroad and lacking in sufficient objective parameters. We agree. In Hicks, the reviewing court confirmed a court’s authority to redefine a class. The Hicks court also indicated the class definition should be “in terms of objective characteristics and common transactional facts,” and be otherwise precise and objective. (Hicks, supra, 89 Cal.App.4th at pp. 915-916.) The trial court implicitly found that plaintiffs’ proposed class definitions failed to meet such criteria. There is substantial evidence in the record to support such a finding.

Like the trial court, we have no duty to craft class definitions for plaintiffs, and we decline to do so. (Lockheed, supra, 29 Cal.4th at p. 1104.) It is not this court’s function to speculate as to any matter in order to assist any party. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 546.) We provide the following comments on the class definition issue solely to illustrate the presence of substantial evidence to support the trial court’s implied finding. We expressly do not intend to provide a guide for specific language for use in plaintiffs’ definitions.

Plaintiffs’ class definitions lacked objective specificity. They did not specify transactions, for example, dealers who contributed to the tip pool, remained on premises during meal periods or were required to arrive at work prior to the beginning of their shifts. They did not set forth the exact dates applicable to each class. Each of the definitions expressed the applicable time period as extending from prior to the date a complaint was filed until an indeterminate date after the complaint filing date. Plaintiffs expressed the end date as “the date Notice to the Class of Pendency of Class Action is mailed.” Plaintiffs’ use of an indeterminate date range is similar to the open date in the proposed class definition that was found inadequate in State of California ex rel. Dept. of Motor Vehicles v. Superior Court (1998) 66 Cal.App.4th 421. There the time period in the class definition was “from within three years prior to October 20, 1977 to the date of refund.” (Id. at pp. 433-435.) The court found that the definition was overbroad and not sufficiently objective to be adequate for class certification. (Ibid.) Lastly, to the extent a class was limited to persons whose cause of action had accrued before the operative complaint was filed, then plaintiffs’ time periods were overbroad. We conclude that substantial evidence in the record supports the trial court’s ruling that plaintiffs failed to provide an adequate class definition as required to establish an ascertainable class.

Inadequate Class Representatives as Part of a Community of Interest

Plaintiffs next claim that the trial court erred when it determined that Lin and Chang are not adequate representatives of the proposed class. The trial court cited the discovery abuses in the Lee case as a basis for its determination that Lin and Chang were unreliable representatives, and accordingly inadequate class representatives. (See McCarther v. Camelot Inn of Little Rock (E.D.Ark. 1980) 513 F.Supp. 343, 345 [prior discovery abuses by a named plaintiff rendered him inadequate as a class representative].)[4] We agree that substantial evidence in the record supports the trial court’s determination.[5] Judge Dau presided over the Lee case and thus had first-hand knowledge of the discovery abuses of Lin and Chang. He also has observed the discovery practices of Lin and Chang in the instant case.[6]

Lin and Chang had the burden of showing that they can adequately represent the class, including by being capable of vigorously and tenaciously prosecuting the litigation in a manner that protects the interests of the class members. (Lockheed, supra, 29 Cal.4th at p. 1104; Simons v. Horowitz (1984) 151 Cal.App.3d 834, 846.) Their pattern of discovery abuses in the Lee case, which was within the personal knowledge of Judge Dau, is substantial evidence to support a finding that Lin and Chang could be expected to engage in the same practices in the instant litigation, and thereby fail to vigorously and tenaciously prosecute the litigation. No refuting evidence was found in the record. In any event, Judge Dau is in the best position to evaluate the adequacy of Lin and Chang as class representatives. (Sav-on, supra, 34 Cal.4th at pp. 326-327.) We have no authority to substitute our decision for that of the trial court. (Id. at p. 328.)

Plaintiff claims that the trial court also erred in finding that Greenbach is not an adequate representative of Asian dealers. In her declaration in support of plaintiffs’ class certification motion, Greenbach stated that she was employed as a fulltime poker dealer by defendants, and in her deposition, she stated that she had never worked as an Asian games dealer. If Lin and Chang were deemed inadequate class representatives, as discussed above, the only remaining plaintiff would be Greenbach. Casino management employees, one from the poker games section and the other from the Asian games section, described in their declarations some of the differences in employment policies and practices applicable to poker dealers as compared to Asian game dealers. The depositions of Lin as an Asian games dealer and Greenbach as a poker dealer reflect differences in practices with respect to time away from dealer tables that may be relevant to the meal time cause of action. There is substantial evidence which supports a finding that plaintiff Greenbach was not an adequate representative of Asian games dealers. The result was that plaintiffs failed to provide sufficient plaintiffs qualified to adequately prosecute the litigation on behalf of all dealers. We conclude that substantial evidence supports a finding that plaintiffs failed to establish the elements of a community of interest required for class certification. (Lockheed, supra, 29 Cal.4th at p. 1104.)

Plaintiffs assert a related claim that the trial court erred in implicitly finding that plaintiffs were required, before the decision on class certification, to add additional named plaintiffs. Essentially, plaintiffs are claiming the trial court had a duty to give plaintiffs more time to add named plaintiffs before the final decision on class certification was issued. Plaintiffs cite La Sala v. American Sav. & Loan Assn. (1971) 5 Cal.3d 864 for the proposition that if plaintiffs are found to be inadequate representatives of the class, then the trial court “should at least afford plaintiffs the opportunity to amend their complaint, to redefine the class, or to add new individual plaintiffs, or both, in order to establish a suitable representative.” (Id. at p. 872.) In La Sala, the Supreme Court made this statement as part of guidance as to options the trial court should consider upon remand, not as a mandate. Plaintiffs also cite Howard Gunty Profit Sharing Plan v. Superior Court (2001) 88 Cal.App.4th 572 for the same purpose. There, the appellate court briefly reviewed the law governing class action certification and stated that “courts have allowed plaintiffs the opportunity . . . to add new individual plaintiffs . . . when the named plaintiff has been found inadequate.” (Id. at p. 578.) It is noteworthy that in Howard Gunty, the appellate court reversed the trial court’s order granting an open continuance to allow for solicitation of new named plaintiffs after the original plaintiff was determined inadequate as a class representative. The statements from La Sala and Howard Gunty are about options available to trial courts with regard to inadequate class representatives. They are not holdings that, without regard to the circumstances, a trial court is mandated to give inadequate class plaintiffs additional time to add named plaintiffs who would be adequate class representatives. The two opinions do not support plaintiffs’ claim.

Here, the trial court gave plaintiffs considerable time to add new plaintiffs prior to the issuance of the final certification decision. As the trial court indicated in its denial order, plaintiffs had been on notice that Lin and Chang might not be suitable class representatives since the date the appellate court affirmed the dismissal of the Lee case for discovery abuses. Plaintiffs had more than six months available to add new plaintiffs before they filed their certification motion. If anything, the plaintiffs themselves shortened the time available to them to seek other class representatives by their choice of the time to file their motion for class certification. Subsequently, the trial court put plaintiffs on express notice of the inadequacy of Lin and Chang in its tentative ruling submitted six weeks before the final decision was issued. The trial court referred to these facts as supporting its decision to deny plaintiffs’ request for additional time to add new plaintiffs as class representatives. We conclude the trial court had no duty to grant plaintiffs still more time to add new plaintiffs, and the evidence supports the trial court’s discretionary decision on the issue.

In summary, as discussed above, there is substantial evidence supporting the finding that plaintiffs failed to meet their burden of establishing the two elements required for certification of a class action--an ascertainable class (Global Minerals & Metals Corp. v. Superior Court, supra, 113 Cal.App.4th at pp. 858, 860) and a well-defined community of interest among the class members (Lockheed, supra, 29 Cal.4th at p. 1104). Only one valid reason, such as failure to establish one element required for certification, is necessary to affirm the trial court’s order denying class certification. (Sav-on, supra, 34 Cal.4th at pp. 326-327.) The trial court properly denied class certification.[7]

The order is affirmed.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

VOGEL, Acting P. J.

ROTHSCHILD, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

[1] Code of Civil Procedure section 382 provides in relevant part: “[W]hen 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, one or more may sue or defend for the benefit of all.”

[2] Plaintiffs state: “These three issues give rise to certification of three (3) dealer classes. 1. As to the First through Seventh Causes of Action, a class of persons employed by Defendants as dealers at any time during the three (3) year period preceding the filing of the Complaint through the date Notice to the Class of Pendency of Class Action is mailed.

“2. As to the Ninth Cause of Action, a class of all persons employed by Defendants as dealers at any time during the period commencing one (1) year prior to May 27, 2004, when the Second Amended Complaint was filed, through the date Notice to the Class of Pendency of Class Action is mailed.

“3. As to the Tenth Cause of Action, a class of all persons employed by Defendants as dealers at any time during the period commencing three (3) years prior to May 27, 2004, when the Second Amended Complaint was filed, through the date Notice to the Class of Pendency of Class Action is mailed.

[3] The third amended complaint provides: “The proposed class . . . is composed of: current and former Casino game dealers who were employed at the Casino at any time beginning three years preceding the filing of the Complaint in this action through final judgment in this action.”

[4] For courts considering class certification under Code of Civil Procedure section 382, “‘[i]t is well established that in the absence of relevant state precedents trial courts are urged to follow the procedures prescribed in rule 23 of the Federal Rules of Civil Procedure (28 U.S.C.) for conducting class actions.’ [Citations.]” (Bell v. American Title Ins. Co. (1991) 226 Cal.App.3d 1589, 1603.)

[5] Plaintiffs contend that the trial court’s ruling on the inadequacy of Lin and Chang as class representatives due to res judicata from the Lee case is inconsistent with the court’s earlier ruling on defendants’ demurrer that Lin and Chang were not barred as to all claims, but only those arising prior to December 5, 2001, the date of dismissal of the Lee case. Having resolved the question on other grounds, we need not reach this contention.

[6] Indication that Judge Dau had some knowledge of discovery practices of Lin and Chang in the instant case appears in the parties’ stipulation for stay of the hearing on defendants’ motion to compel during the pendency of the appeal. No decision on the merits of defendants’ motion has been issued, and we cite the motion here only as an example of an opportunity Judge Dau has had to observe Lin’s and Chang’s discovery practices in the instant case.

[7] Plaintiffs raise other contentions on appeal, including the tip pool merits determination as error and disqualification of Judge Dau as judge in this case. Having determined the denial of class certification was proper, we need not discuss any other contentions.

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.