IRION, J.
Before us for a second time is a proposed class action brought by Juan Marcos Almaraz, Susan K. Bowers, Ruth Donley, Carolyn M. Hitchin, Beth Hurley, Kurt Kalker, Lois K. Klepin and Maureen C. Schickler (Plaintiffs), alleging violations of state wage and hour laws against Sharp HealthCare, Grossmont Hospital Corporation, Sharp Chula Vista Medical Center, Sharp Memorial Hospital and Sharp Coronado Hospital and Healthcare Center (collectively "Sharp") on behalf of a proposed class comprised of Sharp's registered nurses (RN's). When this action was originally before us in 2010, we reversed the trial court's order denying class certification and remanded with instructions that the trial court reconsider the class certification motion to address additional theories of liability asserted by Plaintiffs.
As we will explain, we conclude that the trial court was within its discretion to deny the motion for class certification, and we accordingly affirm the trial court's order.
As set forth in the 2010 opinion, Plaintiffs are RN's who work or worked at health care facilities operated by Sharp. In June 2007, Plaintiffs filed a class action complaint on behalf of a proposed class defined as "[a]ll non-exempt [RN's] currently or formerly employed by Sharp HealthCare in the County of San Diego at one of its affiliated health care institutions on or after June 28, 2003." The complaint contained four causes of action.
The first cause of action alleged that Sharp had failed to pay wages for all time worked in violation of Labor Code sections 204 and 1194. Specifically, the complaint alleged that (1) RN's were not paid for time worked before or after scheduled shifts; and (2) that although RN's worked through meal periods, half-hour meal periods were deducted from their wages.
The second cause of action alleged that Sharp failed to provide RN's with 30-minute meal periods relieved of all duties, in violation of Labor Code section 226.7 and section 11 of Industrial Welfare Commission Wage Order No. 5-2001 (see Cal. Code Regs., tit. 8, § 11050, subd. 11).
The third cause of action alleged that Sharp failed to provide RN's with 10-minute rest periods relieved of all duties in violation of Labor Code section 226.7 and section 12 of Industrial Welfare Commission Wage Order No. 5-2001 (Cal. Code Regs., tit. 8, § 11050, subd. 12).
The fourth cause of action alleged a violation of the unfair competition law (Bus. & Prof. Code, §§ 17200-17209) (the UCL) premised on Sharp's alleged violations of the state wage and hour laws.
Plaintiffs filed their original motion for class certification in April 2009. As we explained in the 2010 opinion, Plaintiffs' class certification motion was unfocused, and thus did not clearly and logically set forth the basis for Plaintiffs' claim that — despite Sharp's stated policies — RN's did not in fact receive required rest and meal periods or the appropriate compensation in lieu of those meal and break periods. In opposing class certification, Sharp correctly observed that Plaintiffs' allegations were difficult to understand, but it attempted to summarize those allegations as follows:
In the 2010 opinion, we adopted the terms "Ratio Theory," "Confusion Theory" and "Coercion Theory" to describe Plaintiffs' theories of liability.
In ruling on the original motion for class certification, the trial court discussed the Ratio Theory, Confusion Theory and Coercion Theory, and decided that none of them were appropriate for class treatment because common questions of law and fact did not predominate and because Plaintiffs had not met their burden to show that the case could be managed on a class basis. As relevant to the issues we will discuss below, the trial court explained that common questions of law and fact did not predominate for the Confusion Theory because it was "based on generalized assumptions which are premised upon subjective analysis of each individual's state of mind." The trial court stated, "Furthermore, there is likely a lack of any substantial commonality since there are over 100 different managers with various hospitals/facilities. An analysis of the states of mind of nurses deposed has led this Court to conclude that Plaintiffs have not met their burden of presenting substantial evidence to support these theories. There is a complete lack of consensus covering a broad range of highly individualized responses with respect to meal and rest breaks. . . . Where coercion and confusion is claimed, the responses are highly subjective and would require individualized examination to reconcile the disparities on the time card, prepared while the information was fresh in each nurse['s] mind. Also, each nurse would have to explain his or her departure from legal requirements." The trial court separately explained that Plaintiffs had failed to meet their burden to establish that the case would be manageable as a class action in light of the fact that "[t]hey have lumped together approximately 3[,]900 nurses working for over 100 managers in 164 units."
In the 2010 opinion, we did not specifically address whether the trial court was within its discretion to decide that the Ratio Theory, Confusion Theory and Coercion Theory were inappropriate for class treatment. Instead, we concluded that the trial court abused its discretion because it had not considered whether class treatment was appropriate as to two additional theories of liability that Plaintiffs described in their briefing of the motion for class certification and were consistent with the allegations of Plaintiffs' complaint. Those theories were (1) the claim that Sharp acted unlawfully in requiring that RN's working over eight hours agree to sign forms waiving either their first or second meal period; (2) the claim that RN's were not receiving appropriate overtime pay for educational, training and orientation activities designated by the code "EDUC."
On remand, the parties entered into a stipulation regarding the scope of the trial court proceedings required by the 2010 opinion, which stated that "[t]he parties agree that the Court is to reconsider Plaintiff's motion for class certification taking into account every theory of liability advanced by Plaintiffs, including Plaintiffs' two additional theories of liability . . ." (i.e., the EDUC/Overtime Theory and Meal Waiver Theory), and "taking into account all admissible evidence."
Plaintiffs then filed a memorandum of points and authorities in support of a "reconsidered motion for class certification" (Plaintiffs' reconsidered motion). Although Plaintiffs' reconsidered motion is somewhat unfocused, it discusses the EDUC/Overtime Theory, the Meal Waiver Theory, and the complaint's UCL cause of action, arguing that those theories are suitable for class treatment.
Plaintiffs' reconsidered motion clarified that the Meal Waiver Theory was based on the allegation that the IWC lacked the authority to issue section 11(D) of Wage Order No. 5, which states that employees in the healthcare industry "who work shifts in excess of eight (8) total hours in a workday may voluntarily waive their right to one of their two meal periods." (Ibid.) According to Plaintiffs, section 11(D) of Wage Order No. 5 is void because it conflicts with Labor Code section 512, subdivision (a), which provides that "if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee." (Ibid.)
Plaintiffs' reconsidered motion also argued that despite the trial court's prior decision that class treatment was not appropriate for the Confusion Theory, the court should certify a class as to the UCL cause of action based on a similar concept as the Confusion Theory. Plaintiffs argued that class certification was proper as to what it refers to in its appellate briefing as a "Confusion Theory through a UCL lens" on the purported basis that — in a claim brought under the UCL — "proof of an unlawfully deceptive practice as to one class member allows an inference of reliance as to all," limiting the number of individual issues that would have to be decided.
Regarding the EDUC/Overtime Theory, Plaintiffs' reconsidered motion stated that although the trial court had excluded evidence relating to that theory in ruling on the original class certification motion, Plaintiffs proposed to provide "additional evidence" on that issue in connection with the reconsidered motion. However, as Sharp pointed out in its opposition, that "additional evidence" was the same evidence that the trial court has already excluded in connection with the original class certification motion.
In a lengthy minute order, the trial court denied Plaintiffs' reconsidered motion. After thoroughly and accurately setting forth the legal standards governing class certification, the trial court separately discussed whether class treatment was appropriate for the three different theories of liability covered in Plaintiffs' reconsidered motion.
As to the "Confusion Theory through a UCL lens,"
In addressing the Meal Waiver Theory, the trial court set forth alternative bases for denying class certification. First, it determined that the Meal Waiver Theory failed on the merits because Labor Code section 512, subdivision (b) "specifically authorized [the IWC] to enact an exception to the general requirements of section 512, subd[ivision] (a)." The trial court also explained that "[e]ven if the Court were to consider the IWC's wage order invalid, Plaintiffs still failed to establish the prerequisites of ascertainability, commonality, and typicality. . . ." Specifically, the court stated that (1) the class was overbroad and unascertainable because the "parties agree that waiver forms do not apply to approximately 30 percent of the RN[']s"; (2) individual issues would predominate because establishing whether a class member was harmed would require an individualized inquiry into whether the RN's self-scheduled their meals or already received a premium payment for a specific day of work by including the "NB" code on their timecards; and (3) Plaintiffs had not established the manageability of litigating the Meal Waiver Theory as a class action, in that Plaintiffs did not put forth a specific trial plan and instead "merely informed the Court of tools it
With respect to the EDUC/Overtime Theory, the trial court explained that because Plaintiffs had submitted no admissible evidence regarding that theory, the court had no basis for concluding that any of the requirements for class treatment had been met.
The legal standards that we set forth in the 2010 opinion continue to apply, and we restate them here.
"[T]rial courts are ideally situated to evaluate the efficiencies and practicalities of permitting group action" and are accordingly "afforded great discretion in granting or denying certification." (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435 (Linder) 435.) We thus apply an abuse of discretion standard of review to an order denying class certification. (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326 (Sav-On).) "A certification order generally will not be disturbed unless (1) it is unsupported by substantial evidence, (2) it rests on improper criteria, or (3) it rests on erroneous legal assumptions." (Fireside Bank v. Superior Court (2007) 40 Cal.4th 1069, 1089 (Fireside).) "Under this standard, an order based upon improper criteria or incorrect assumptions calls for reversal `"even though there may be substantial evidence to support the court's order."' [Citations.] Accordingly, we must examine the trial court's reasons for denying class certification. `Any valid pertinent reason stated will be sufficient to uphold the order.'" (Linder, at p. 436.)
"Section 382 of the Code of Civil Procedure authorizes class suits in California 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.'" (Linder, supra, 23 Cal.4th at p. 435.) "Class certification requires proof (1) of a sufficiently numerous, ascertainable class, (2) of a well-defined community of interest, and (3) that certification will provide substantial benefits to litigants and the courts, i.e., that proceeding as a class is superior to other methods." (Fireside, supra, 40 Cal.4th at p. 1089.) "The party seeking certification has the burden to establish the existence of both an ascertainable class and a well-defined community of interest among class members." (Sav-On, supra, 34 Cal.4th at p. 326.) "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." (Ibid.)
The requirement that common questions of law and fact predominate "`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."'" (Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1108.)
The concept of manageability arises under the issue of whether a class action is superior to individual lawsuits. "[E]ven if questions of law or fact predominate, the lack of superiority provides an alternative ground to deny class certification. [¶] . . . [¶] In deciding whether a class action would be superior to individual lawsuits, `the court will usually consider [four factors]: [¶] [(1)] The interest of each member in controlling his or her own case personally; [¶] [(2)] The difficulties, if any, that are likely to be encountered in managing a class action; [¶] [(3)] The nature and extent of any litigation by individual class members already in progress involving the same controversy; [and] [¶] [(4)] The desirability of consolidating all claims in a single action before a single court.'" (Basurco v. 21st Century Ins. Co. (2003) 108 Cal.App.4th 110, 120-121, italics added (Basurco).) As our Supreme Court has commented, the proponent's burden of establishing the propriety of class certification "clearly contemplates a demonstration of predominance and manageability." (Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906, 922, italics added (Washington Mutual).)
Plaintiffs' first contention is that the trial court abused its discretion because it improperly refused to consider whether class treatment was proper for the UCL Theory. According to Plaintiffs, the court refused to consider that issue because it decided, as a preliminary matter, that the scope of the issues specified for remand in the 2010 opinion did not include whether the class certification motion should be granted as to the UCL Theory.
Plaintiffs' argument is easily rejected because its factual premise is faulty. As we have described, the trial court did not refuse to consider whether class treatment was appropriate for the UCL Theory. Instead, as an alternative basis for its ruling, the trial court reached the merits of the class certification issue and stated that Plaintiffs had failed to establish a certifiable class. Therefore, we reject Plaintiffs' contention that the trial court erred by refusing to consider the merits of whether the UCL theory provided a suitable basis for class certification.
Plaintiffs next take issue with the trial court's refusal to consider certain evidence when ruling on Plaintiffs' reconsidered motion for class certification.
As background to this issue, as we explained in the 2010 opinion, the trial court either struck or ruled inadmissible a significant portion of the evidence that Plaintiffs attempted to rely on to support the class certification motion. With respect to the evidence Plaintiffs submitted with their moving papers, the trial court excluded — among other things — several paragraphs of the declarations of two of Plaintiffs' expert witnesses and some of the paragraphs of the declarations filed by the named plaintiffs. Along with their reply memorandum, Plaintiffs attempted to file a supplemental declaration signed by their attorney, which attached 37 exhibits including the full transcripts from recently taken depositions of 10 RN's and over 600 pages of timecards and payroll reports from putative class members purporting to show "various categories of wage and hour violations." With the exception of certain impeachment evidence, the trial court granted Sharp's motion to strike the supplemental evidence that Plaintiffs submitted with their reply memorandum. The 2010 opinion closely analyzed Plaintiffs' challenges to the trial court's evidentiary rulings, affirming all of them except for rulings excluding some of the paragraphs of the named plaintiffs' declarations.
In its ruling on Plaintiffs' reconsidered motion, the trial court explained that it would not revisit its evidentiary rulings made in connection with its original ruling on the motion for class certification. The trial court specifically rejected Plaintiffs' argument that the stricken evidence previously submitted with the reply memorandum should now be admitted because it was being submitted as part of the initial moving papers for Plaintiffs' reconsidered motion. As the trial court explained, "The Court of Appeal recognized the relevance of the evidentiary issues raised by Plaintiffs on remand . . . and did a careful analysis of this Court's rulings. Plaintiffs' assertion that it may present evidence that this Court and the Court of Appeal found to be objectionable in this reconsidered motion to support their theories, i.e., evidence presented with the reply brief, disregards the Court of Appeal's recognition of the relevance of these rulings on remand and does not square with the time and attention that the Court of Appeal spent on the evidentiary aspect of the class certification motion."
We agree with the trial court. In the 2010 opinion we directed the trial court to review the motion for class certification that Plaintiffs had already filed, with an explicit focus on the Meal Waiver Theory and EDUC/Overtime Theory. As the trial court correctly observed, we extensively discussed the evidentiary challenges raised by Plaintiffs in the 2010 appeal — including Plaintiffs' challenge to the exclusion of the evidence they filed with the reply memorandum — because we intended those evidentiary rulings to remain in place during the trial court's reconsideration of the class certification motion. Plaintiffs' request that the trial court consider evidence that it already ruled inadmissible is contrary to our instructions in the 2010 opinion.
In addition to contending that the trial court should have admitted the previously excluded evidence, Plaintiffs argue that the excluded evidence concerning the EDUC/Overtime Theory still should have played some role in the trial court's analysis of whether that theory was appropriate for class certification.
As an initial matter, we note that the trial court's refusal to consider the evidence relating to the EDUC/Overtime Theory had a profound impact on Plaintiffs' case because the trial court's evidentiary rulings resulted in the exclusion of all of the evidence relating to whether class treatment was appropriate for the EDUC/Overtime Theory. Based on the complete lack of evidentiary support, the trial court concluded in ruling on Plaintiffs' reconsidered motion, that Plaintiffs had not met their burden with respect to the EDUC/Overtime Theory to establish the requirements for class certification.
Focusing first on the evidence on the EDUC/Overtime Theory submitted with their moving papers for the class certification motion, Plaintiffs acknowledge that the trial court sustained Sharp's objections to the declaration and attached exhibit submitted by Plaintiffs' counsel, Robert Cantore. However, Plaintiffs argue that the trial court still should have considered that declaration and attached exhibit when deciding the class certification motion, even though they were technically excluded from evidence.
The argument is nonsensical and we reject it. The point of the class certification motion was for Plaintiffs to establish that the requirements for class certification existed for the EDUC/Overtime claims and their other theories of liability. Plaintiffs submitted the evidence for that purpose, and the trial court excluded it. Plaintiffs have cited no authority, and we are aware of none, that would allow the court to consider excluded evidence for the limited purpose of ruling on a class certification motion. Without any admissible evidence supporting its claim that each of the requirements for class certification existed for the EDUC/Overtime Theory of liability, the trial court properly denied class certification.
As one of the alternative bases for denying class certification on the Meal Waiver Theory, the trial court stated that "the class as defined is overbroad" because the parties agreed that "the waiver forms do not apply to approximately 30 percent of the RN[']s since they do not work shifts in excess of 10 hours." As the trial court explained, "[a] class cannot be certified when a proposed class is overbroad because a substantial portion of the class were never subjected to or damaged by the asserted illegal practice[,]" and "[a]s a result the class is unascertainable." Plaintiffs contend that the trial court's ruling on this issue was an abuse of discretion. As we will explain, we disagree.
As an initial matter, we discuss the concept of overbreadth and ascertainability as it applies in class certification motions. As we have explained, "[t]he party seeking certification has the burden to establish the existence of . . . an ascertainable class. . . ." (Sav-On, supra, 34 Cal.4th at p. 326.) For a proposed class to be ascertainable, (1) the class definition must state precise and objective criteria that allow identification of persons who have claims and will be bound by the results of the litigation (Marler v. E.M. Johansing, LLC (2011) 199 Cal.App.4th 1450, 1459; Medrazo v. Honda of North Hollywood (2008) 166 Cal.App.4th 89, 101; Global Minerals & Metals Corp. v. Superior Court (2003) 113 Cal.App.4th 836, 858); and (2) there must be a way to identify those persons and give them notice of the litigation without undue expense or time, usually by reference to official or business records (Archer v. United Rentals, Inc. (2011) 195 Cal.App.4th 807, 828; Sevidal v. Target Corp. (2010) 189 Cal.App.4th 905, 919 (Sevidal)). "Courts have recognized that `class certification can be denied for lack of ascertainability when [(1)] the proposed definition is overbroad and [(2)] the plaintiff offers no means by which only those class members who have claims can be [separated] from those who should not be included in the class.'" (Sevidal, at p. 921.)
Here, the proposed class encompasses all non-exempt RN's employed by Sharp or its affiliates since June 28, 2003. As the trial court observed, approximately 30 percent of the RN's could not have been harmed by Sharp's use of meal waivers because they did not work shifts over 10 hours.
Plaintiffs contend that 30 percent is not a significant percentage of class members for the purpose of an ascertainability and overbreadth analysis. Plaintiffs rely on cases in which a class was determined to be overbroad when more than half of the class did not suffer injury. (Pfizer Inc. v. Superior Court (2010) 182 Cal.App.4th 622, 632 [in a case alleging deceptive advertising, the class was overbroad when "many, if not most, class members were not exposed" to the allegedly deceptive advertising campaign (italics added)]; Sevidal, supra, 189 Cal.App.4th at p. 921 [in a case alleging false advertising and similar claims, the class was overbroad when "approximately 80 percent" of the class members were never exposed to the alleged misrepresentation].) In our view Sevidal and Pfizer present outlying factual scenarios and do not stand for the general principle that a trial court lacks discretion to determine that a class is overbroad unless more than half of the class members suffered no harm. Instead of asking whether a majority of the class members lacked any injury, the more sensible inquiry is set forth in Bell v. Farmers Ins. Exchange (2004) 115 Cal.App.4th 715, 743, where the court inquired whether the unharmed class members represented only a "marginal element" in the class. Bell determined the class was not overbroad when a random sample showed that only 5.7 percent of the employees in the random sample lacked an interest in the objectives of the litigation. (Ibid.) Similarly, the standard applied in Sevidal was whether the percentage of class members without any injury was "significant" rather than "only slightly overinclusive." (Sevidal, at p. 921.) Here, the percentage of class members who suffered no injury is nearly one-third of the entire class, which is far greater than a marginal 5.7 percent in Bell, and cannot reasonably be described as only slightly overinclusive, as stated in Sevidal.
Plaintiffs also contend that trial court's ascertainability analysis improperly ignored Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, 1208, which — like this case — concerned a proposed class action alleging that the employer violated the wage and hour laws by requiring employees to sign unlawful meal waiver forms. (Id. at p. 1198.) Plaintiffs argue that like in Bufil, the trial court should have concluded that although some class members may not have been impacted by the allegedly illegal meal waivers, the class is still ascertainable and not overbroad. We reject Plaintiffs' argument because the class definition in Bufil was specifically designed to eliminate the problem of overbreadth by including only those employees whose time records showed them to be impacted by the allegedly illegal policy. (Id. at p. 1201.) Accordingly, the proposed class in Bufil was "by definition . . . ascertainable from [the employer's] records" because it specifically included only those employees who timesheet records show that they were injured by the employer's alleged illegal policy. (Id. at p. 1208.) Here, in contrast, Plaintiffs have not even attempted to define a class that would only include those RN's who were impacted by Sharp's meal waiver policy, and they further have not shown that it would even be possible to narrow the class using existing records. Instead — as the trial court correctly pointed out — Plaintiffs have proposed a grossly overbroad class that sweeps in all of Sharp's nonexempt RN's regardless of the fact that approximately 30 percent of them have not been impacted by Sharp's meal waiver policy.
We next examine Plaintiffs' contention that the trial court abused its discretion in determining that the litigation of the Meal Waiver Theory would not be manageable as a class action.
As we have explained, in addition to establishing that common questions of law or fact predominate, to prevail on a class certification motion, a party must establish that "a class action would be superior to individual lawsuits," taking into account "`[t]he difficulties, if any, that are likely to be encountered in managing a class action.'" (Basurco, supra, 108 Cal.App.4th at p. 121.) In Plaintiffs' reconsidered motion, Plaintiffs supplied only vague explanations of how the Meal Waiver Theory would be manageable as a class action. Plaintiffs argued, "In the instant action, the Court may provisionally certify the class and one or more subclasses corresponding to each theory of recovery advanced by Plaintiffs, until it can be determined through examination of Sharp's records or random sampling or some combination thereof, whether sub-classes should be further sub-divided to account for differences between, say, RN[']s assigned to eight-hour and twelve-hours schedules. In addition to subclasses, California courts have endorsed several other methods to manage individual issues and preserve the efficiencies of class treatment, including pattern and practice evidence, statistical evidence, sampling evidence, expert testimony, and other indicators of a defendant's centralized practices." When discussing manageability, Plaintiffs referred specifically to the Meal Waiver Theory only in a brief sentence: "[T]he lawfulness of Sharp's systemwide late lunching, meal waiver forms and EDUC payroll practices can be determined `in the abstract,' i.e., as a matter of law with limited or no factual inquiry." Although Plaintiffs acknowledged that for each theory "calculating damages . . . may require some individualized inquiry," they claimed — without providing specifics — that "these issues can nonetheless be resolved on the basis of Sharp's official records — above all, putative class members' time cards and payroll reports."
On appeal, Plaintiffs continue to fall back on their vague assertions about the manageability of the Meal Waiver Theory as a class action, without any citation to the record. Plaintiffs state in their appellate brief that they "repeatedly have informed the trial court that they have examined some (albeit not all) of Sharp's records . . . and are currently satisfied they can provide their case (on each theory) using these records alone. Put simply, what else does the trial court want or need at the early stage of the litigation . . . ?" Plaintiffs argue that because Sharp is required by federal law to maintain time records for its employees, the appropriate documentation for the classwide resolution of this case must exist in Sharp's files. However, they fail to specifically explain exactly what type of documentation they would rely on to establish their case if it is litigated as a class action and how that documentation relates to the issues that would have to be resolved.
Based on Plaintiffs' deficient showing on the issue of manageability, the trial court stated that the Meal Waiver Theory would be inappropriate for class treatment because Plaintiffs had not established that procedural tools were available to make it manageable on a class basis. As the trial court explained, "Instead of a specific plan, Plaintiffs merely informed the Court of tools it may use to test the viability of their theories. This is not sufficient." (Italics omitted.) The trial court pointed out that issues particular to each class member could arise in litigating the Meal Waiver Theory, such as whether class members self-scheduled their meal periods, whether they already received a premium payment on a day they delayed their meal period, and whether they were one of the approximate 30 percent of class members who did not work long enough shifts to be impacted by the meal waivers. With reference to these issues, the trial court pointed out that it could not "assume, based only on Plaintiffs' counsel's assertion, that all can be known simply by referencing the time cards."
We agree with the trial court that Plaintiffs have not met their burden to establish how this case can be managed as a class action with respect to the Meal Waiver Theory or any of their theories. Plaintiffs have provided nothing but vague assertions that they intend to rely on Sharp's employment records. They have made no attempt to explain what those records are or how those records can and will be used in the litigation. To prevail on a class certification motion, "[i]t is not sufficient . . . simply to mention a procedural tool; the party seeking class certification must explain how the procedure will effectively manage the issues in question. . . ." (Dunbar v. Albertson's, Inc. (2006) 141 Cal.App.4th 1422, 1432-1433.) As our Supreme Court has explained in the context of discussing the requirements for certification of a nationwide class, a trial court "cannot simply rely on counsel's assurances of manageability" and "cannot accept `on faith'" the accuracy of counsel's assertions as to manageability. (Washington Mutual, supra, 24 Cal.4th at p. 924.) "[C]lass action proponents `should not expect the court to ferret through, disseminate, and craft manageable schemes'" from the material provided by plaintiffs, because that "burden `clearly rests' with the proponents." (Id. at pp. 924-925.)
By failing to provide any specifics as to how they proposed to litigate the Meal Waiver Theory as a class action despite the issues requiring individual proof, Plaintiffs failed to meet their burden. Because Plaintiff provided only vague assurances that the litigation would be manageable as a class action, the trial court was well within its discretion to conclude Plaintiffs failed to meet their burden on that issue with respect to the Meal Waiver Theory.
Relying on our Supreme Court's comment in Fireside, supra, 40 Cal.4th at page 1074, that "[t]rial courts in class action proceedings should decide whether a class is proper, and if so, order class notice before ruling on the substantive merits of an action," Plaintiffs argue that the trial court abused its discretion by considering the merits of the Meal Waiver Theory.
Our Supreme Court's view on whether the merits should be considered in ruling on a class action certification motion was recently clarified in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004 (Brinker). Brinker stated that "any `peek' a court takes into the merits at the certification stage must `be limited to those aspects of the merits that affect the decisions essential' to class certification." (Id. at p. 1024.) However, in this case, we need not decide whether the trial court's discussion of the merits of the Meal Waiver Theory was permissible under the rule expressed in Brinker because the trial court provided three alternative bases for its ruling denying class certification on the Meal Waiver Theory.
Specifically, as we have explained, apart from discussing the merits of the Meal Waiver Theory, the trial court decided that as to the Meal Waiver Theory (1) the class was overbroad and unascertainable; (2) individual issues would predominate; and (3) Plaintiffs had not established the manageability of litigating the Meal Waiver Theory as a class action. We concluded above that Plaintiffs' challenge to two of the alternative bases for the trial court's ruling on the Meal Waiver Theory lack merit: the class was overbroad and the case was not manageable as a class action. Further, Plaintiffs present no argument challenging the remaining of the trial court's three alternative bases for denying class certification basis, namely, that individual issues predominate.
In our review of the trial court's class certification ruling, "`[ a]ny valid pertinent reason stated will be sufficient to uphold the order.'" (Linder, supra, 23 Cal.4th at p. 436; see also Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 844 [reversal not warranted "simply because some of the court's reasoning was faulty, so long as any of the stated reasons are sufficient to justify the order"].) Here, because the trial court gave three valid pertinent reasons other than its consideration of the merits, we reject Plaintiffs' argument that the trial court's order denying class certification should be reversed based on the court's consideration of the merits of the Meal Waiver Theory.
The order denying class certification is affirmed.
HUFFMAN, Acting P.J. and AARON, J., concurs.
"The Industrial Welfare Commission [(IWC)] . . . is the state agency empowered to formulate wage orders governing employment in California." (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1102, fn. 4.) With respect to meal periods, the applicable wage order provides in relevant part: "(A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day's work the meal period may be waived by mutual consent of the employer and the employee. Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an `on duty' meal period and counted as time worked. An `on duty' meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time. [¶] (B) If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each workday that the meal period is not provided." (Cal. Code Regs., tit. 8, § 11050, subd. 11(A)-(B).) Specifically with respect to health care workers, the wage order provides: "(D) Notwithstanding any other provision of this order, employees in the health care industry who work shifts in excess of eight (8) total hours in a workday may voluntarily waive their right to one of their two meal periods. In order to be valid, any such waiver must be documented in a written agreement that is voluntarily signed by both the employee and the employer. The employee may revoke the waiver at any time by providing the employer at least one (1) day's written notice. The employee shall be fully compensated for all working time, including any on-the-job meal period, while such a waiver is in effect." (Cal. Code Regs., tit. 8, § 11050, subd. 11(D).)
Further, we note that Plaintiffs' opening brief contains several vague and undeveloped arguments that are either not set forth in the argument section of their brief or are not contained within the scope of their argument headings. We do not address those arguments as they are not properly presented. (Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46, 59 ["We may disregard arguments not properly presented under appropriate headings."].)
