Filed 5/2/14; pub. order 5/16/14 (see end of opinion)




                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                               DIVISION ONE

                                        STATE OF CALIFORNIA



KRISTIN HALL,                                           D062909

         Plaintiff and Appellant,

         v.                                             (Super. Ct. No.
                                                         37-2009-00087938-CU-OE-CTL)
RITE AID CORPORATION,

         Defendant and Respondent.


         APPEAL from an order of the Superior Court of San Diego County, Joan M.

Lewis, Judge. Reversed.

         Dostart Clapp & Coveney, James F. Clapp, James T. Hannink; Altshuler Berzon

and Michael Rubin for Plaintiff and Appellant.

         AARP Foundation Litigation and Barbara A. Jones for AARP as Amicus Curiae

on behalf of Plaintiff and Appellant.

         Paul Hastings, Jeffrey D. Wohl, Rishi N. Sharma, Regan A. W. Herald, Elizabeth

J. MacGregor and Peter A. Cooper for Defendant and Respondent.
       Kristin Hall filed this action, on behalf of herself and similarly situated persons,

alleging defendant Rite Aid Corporation did not provide seats to employees while the

employees were operating cash registers at Rite Aid check-out counters in violation of

section 14 of Wage Order 7-2001 (section 14) (Cal. Code Regs., tit. 8, § 11070(14)),

promulgated by California's Industrial Welfare Commission (IWC). Section 14 requires

an employer to provide employees with suitable seats "when the nature of the work

reasonably permits the use of seats." (Cal. Code Regs., tit. 8, § 11070(14)(A).)

       The trial court initially granted Hall's motion for class certification. However, Rite

Aid subsequently moved for decertification, citing additional evidence as well as

decisions by other courts. The trial court granted Rite Aid's motion for decertification,

and denied Hall's cross-motion to permit the action to proceed as a representative

nonclass action under Labor Code section 2698 et seq. Hall appeals, contending (1) Rite

Aid's decertification motion should have been denied because it was unsupported by an

adequate showing of "changed circumstances"; (2) the trial court applied the wrong

analytical approach and standards when it reevaluated the propriety of permitting Hall's

action to proceed as a class action; (3) the trial court's order decertifying the class was

based on an erroneous interpretation of section 14; and (4) the court erred when it denied

Hall's cross-motion to permit the action to proceed as a representative nonclass action

under the California Labor Code Private Attorneys General Act of 2004 (PAGA),

codified in Labor Code section 2698 et seq.

       We conclude that, under the analytic framework promulgated by Brinker

Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004 (Brinker), the trial court erred

                                               2
when it decertified the class action because its decertification order was based on an

assessment of the merits of Hall's theory rather than on whether the theory was amenable

to class treatment.

                                             I

                      FACTUAL AND PROCEDURAL BACKGROUND

       A. The Complaint

       Hall is a former employee of Rite Aid, where she worked as a Cashier/Clerk. She

filed a putative class action against Rite Aid to recover penalties pursuant to Labor Code

§ 2699, subdivision (f). She alleged Rite Aid violated Labor Code section 1198, which

makes it illegal to employ a person under conditions of labor prohibited by an applicable

IWC Wage Order. She alleged Rite Aid violated a condition of labor because it did not

provide its Cashier/Clerks with suitable seats, in violation of section 14 of Wage Order

7-2001, which provides:

          "(A) All working employees shall be provided with suitable seats
          when the nature of the work reasonably permits the use of seats.

          "(B) When employees are not engaged in the active duties of their
          employment and the nature of the work requires standing, an
          adequate number of suitable seats shall be placed in reasonable
          proximity to the work area and employees shall be permitted to use
          such seats when it does not interfere with the performance of their
          duties." (Cal. Code Regs., tit. 8, § 11070(14).)

       B. The Class Certification Order

       Hall moved for class certification. In support of the motion, she submitted

evidence that (1) all Cashier/Clerks are covered by the same job description and have

similar job duties, including check-out work; (2) on average, Cashier/Clerks spend a

                                             3
majority of their hours working at the register; (3) most check-out work (which largely

involves scanning and bagging merchandise, processing payments, and handing the bags

and receipt to the customer) can be done while seated, but Rite Aid required its

Cashier/Clerks to stand while performing check-out work; and (4) Rite Aid's standard

counter configurations could accommodate a seat with minimal modifications.

       Rite Aid opposed the motion, arguing that individual issues would predominate.

Rite Aid asserted (1) its stores differed in size, sales volume, number of Cashier/Clerks,

and sales counter configurations; (2) when Cashier/Clerks are not performing check-out

counter work they are tasked with duties that varied among the stores; and (3) the

percentage of time each Cashier/Clerk spent behind the check-out counter varied from 2

percent to 99 percent (with an average of about 42 percent) and the time spent on

stockroom or floor duties was equally varied. Rite Aid's evidence also showed that, even

when performing duties at the check-out counter, the distance Cashier/Clerks had to

move away from the register (to retrieve controlled items such as tobacco and liquor)

varied depending on the specific configuration of each store, and they often or very often

performed tasks requiring them to lift, bend, twist, lean over, or move around while

working at the check-out register. Because of the variety of tasks, 69 percent of surveyed

Cashier/Clerks reported they spent at least half their time moving behind the counter, and

31 percent reported they spent at least 3/4 of their time moving behind the counter.

       Hall, whose proffered theory of recovery was that the work performed by

Cashier/Clerks when stationed at the check-out registers reasonably permits the use of

seats and therefore the failure to provide seats violated section 14, asserted many of these

                                             4
variations were irrelevant to her theory and therefore were not an obstacle to class

certification. Hall argued the lack of uniformity in the sizes and configurations of the

stores, or the variations in the amount of time Cashier/Clerks reported spending working

at the check-out counter, had no relevance to whether the failure to provide seats violated

section 14 because the nature of the check-out work itself reasonably permitted the use of

a seat. In October 2011 the trial court granted the motion for class certification.

       C. The Decertification Motion

       Three weeks before trial, the parties discussed the proposed trial plan at the trial

readiness conference. Hall's proposal, which appears to have contemplated presenting

plaintiff's case in seven days with testimony from 10 Cashier/Clerks, along with her

ergonomist and Rite Aid employees regarding general company policies and practices,

was challenged by Rite Aid's counsel because of due process issues discussed in a

recently published opinion.1 Hall's counsel conceded that, if the court believed the

present case fell under the rationale of Duran, it would take "months" to try the matter.

The court ordered supplemental briefing on the trial plan and on the impact of Duran.

       Hall argued Duran had no application, and the sole question--whether "the nature

of the work of a Cashier/Clerk at the front-end cash register reasonably permits the use of



1      The case, Duran v. U.S. Bank Nat. Assn. (2012) 203 Cal.App.4th 212 (Duran),
held that a class action in a "wage and hour" case was improperly tried using a
"sampling" from the class because the trial plan did not provide a statistically valid
sample and it violated the defendant's due process rights to present evidence refuting the
claims of individual class members. (Ibid.) However, the Supreme Court granted review
in Duran shortly after the pretrial conference. (Duran v. U.S. Bank Nat. Assn. (May 16,
2012) No. S200923.)
                                              5
a seat"--was amenable to representative proof. Rite Aid's supplemental brief argued Hall

had not proposed a manageable trial plan because it did not ensure that statistically valid

representative proof would be provided on myriad questions,2 and it would deny Rite Aid

its due process right to present evidence refuting claims of specific class members. Rite

Aid argued that, considering the absence of a manageable trial plan, the court sua sponte

should decertify the class.

       The court stated it did not at that point have enough information for it sua sponte

to order the class decertified, but agreed to hear a motion to decertify. Rite Aid's motion

relied on declarations from 11 Cashier/Clerks who had "opted out" of the class, excerpts

from depositions of Hall's class declarants, and recent decisions from federal district

courts.3 Rite Aid argued any violation of section 14 required a two-step inquiry: first, the



2      For example, Rite Aid argued, the percentage of time actually spent at the check-
out counter rather than on other duties was material for defining the nature of the work
within the meaning of section 14, and the evidence showed those percentages varied
widely among the class. Rite Aid also argued that, even for time spent at the check-out
counter, the percentage of time actually spent doing tasks incompatible with sitting was
material to whether the nature of the work reasonably permitted the use of seats within
the meaning of section 14, and those percentages also varied widely among the class.
Rite Aid also asserted that questions of remedy, and in particular whether the check-out
counter configurations among its 600 stores could absorb changes required to install
seating facilities, also would require individualized determinations.

3      Rite Aid cited Kilby v. CVS Pharmacy, Inc. (S.D. Cal. Apr. 4, 2012,
No. 09cv2051-MMA (KSC)) 2012 WL 1132854 (Kilby), in which the federal court
denied class certification in a "suitable seat" case for cash-register operators, arguing the
same rationale should be applied to this case. Rite Aid also cited E.E.O.C. v. Eckerd
Corp. (N.D.Ga. July 02, 2012, No. 1:10–cv–2816–JEC) 2012 WL 2568225, which
involved an action brought by the Equal Employment Opportunities Commission under
the Americans with Disabilities Act (ADA) (42 U.S.C. § 12101 et seq.) alleging Rite Aid
violated the ADA by not permitting a Cashier/Clerk to sit. In the latter action, the court
                                              6
court needed to decide what was the "nature of the work" of Cashier/Clerks, and second,

whether that work "reasonably permits" the use of a seat. Rite Aid argued that, under

section 14, the "nature of the work" inquiry requires examination of the job "as a whole,"

rather than whether some discrete subpart of the employee's duties was amenable to being

performed while seated. Rite Aid argued the variations among class members as to their

job as a whole, including the amount of time they spend at the check-out counter

compared with other duties, the types of physical activity required even when stationed at

the check-out counter, and the physical configurations among hundreds of Rite Aid

stores, made class treatment improper because the "nature of the work" of any specific

Cashier/Clerk required individualized inquiries for each class member, and whether that

work would "reasonably permit" the use of a seat would also require individualized

determinations based on the physical characteristics for each check-out counter.

       Hall raised both procedural and substantive reasons to oppose decertification. She

asserted a decertification motion must be based on new law or new facts and Rite Aid had

not adequately shown either prerequisite. Hall also asserted that variations among

Cashier/Clerks as to their job duties were irrelevant because class certification depends

on the plaintiff's "theory of recovery," and her theory was that Rite Aid's policy requiring

its Cashier/Clerks to stand while at the register violated section 14 because the nature of

check-out work reasonably permits the use of seats regardless of the amount of time any

entered summary judgment in favor of Rite Aid because many of the essential job
functions involved physical movement and therefore the sitting accommodation
demanded by the EEOC was per se unreasonable because incompatible with the essential
job functions for a Cashier/Clerk. (E.E.O.C. v. Eckerd Corp., supra, 2012 WL at pp. *5-
10.)
                                             7
particular Cashier/Clerk might spend on other duties. Hall also argued the court should

not employ Rite Aid's statutory construction (i.e. that the "nature of the work" inquiry

requires examination of the job "as a whole") to evaluate the decertification motion

because that substantive construction was inconsistent with the statutory purpose of

section 14, was based on flawed authority, and was inconsistent with rulings from other

courts.4

       The trial court granted the motion to decertify the class. The court concluded that

"individualized issues predominate as to whether the 'nature of the work' of a

cashier/clerk reasonably permits the use of a suitable seat," and explained it agreed with

the analysis in Kilby that section 14's obligations could only be assessed by examining

"the job . . . as a whole." The court also rejected Hall's argument that the lawsuit could

proceed as a PAGA representative action. Hall timely appealed.

                                             II

            LEGAL PRINCIPLES GOVERNING CLASS CERTIFICATION

       A. Class Action Principles as Construed by Brinker

       Class actions provide an avenue pursuant to which the claims of many individuals

can be resolved at the same time, thereby eliminating the possibility of repetitious

litigation and providing small claimants with a method of obtaining redress for claims

that would otherwise be too small to warrant individual litigation. (Richmond v. Dart


4     Hall cited Garvey v. Kmart Corp. (N.D.Cal., July 18, 2012, No. C 11–02575
WHA), 2012 WL 2945473 (Garvey) and Echavez v. Abercrombie and Fitch Co., Inc.
(C.D.Cal., March 12, 2012, No. CV 11–9754 GAF (PJWx)) 2012 WL 2861348 to
support her statutory construction.
                                             8
Industries, Inc. (1981) 29 Cal.3d 462, 469.) "The party advocating class treatment must

demonstrate the existence of an ascertainable and sufficiently numerous class, a well-

defined community of interest, and substantial benefits from certification that render

proceeding as a class superior to the alternatives." (Brinker, supra, 53 Cal.4th at

p. 1021.) "In turn, 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.' " (Fireside Bank v. Superior Court (2007) 40 Cal.4th 1069, 1089, quoting

Richmond, at p. 470.)

       The certification question is "essentially a procedural one that does not ask

whether an action is legally or factually meritorious." (Linder v. Thrifty Oil Co. (2000) 23

Cal.4th 429, 439-440 (Linder).) "A trial court ruling on a certification motion determines

'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.' " (Sav-On

Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326 (Sav-On).) "On the issue

whether common issues predominate in the litigation, a court must 'examine the plaintiff's

theory of recovery' and 'assess the nature of the legal and factual disputes likely to be

presented.' [Citation.] . . . In conducting this analysis, a 'court must examine the

allegations of the complaint and supporting declarations [citation] and consider whether

the legal and factual issues they present are such that their resolution in a single class

proceeding would be both desirable and feasible. "As a general rule if the defendant's

                                              9
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." ' " (Bradley v.

Networkers Internat., LLC (2012) 211 Cal.App.4th 1129, 1141-1142 (Bradley).)

       Because the analytic framework announced by Brinker appears dispositive of the

narrow question of whether the trial court erred when it granted Rite Aid's decertification

motion, we examine Brinker and its progeny in detail. In Brinker, the trial court certified

a class action for approximately 60,000 current and former nonexempt employees of

defendant corporations for a complaint alleging the defendants violated state laws

requiring meal and rest breaks for nonexempt hourly employees.5 (Brinker, supra, 53

Cal.4th at pp. 1017-1019 & fn. 4.) On appeal, this court held the trial court erred in

certifying each of the subclasses and granted writ relief to reverse class certification. The

California Supreme Court subsequently vacated that decision by its grant of review "to

resolve uncertainties in the handling of wage and hour class certification motions." (Id.

at p. 1021.) The Supreme Court ultimately concluded the trial court properly certified the

rest break subclass, remanded the question of certification of the meal break subclass for




5      The class definition included several subclasses, three of which were (1) a rest
period subclass comprising "all 'Class Members who worked one or more work periods in
excess of three and a half (3.5) hours without receiving a paid 10 minute break during
which the Class Member was relieved of all duties' " during the subclass period; (2) a
meal period subclass comprising "all 'Class Members who worked one or more work
periods in excess of five (5) consecutive hours, without receiving a thirty (30) minute
meal period during which the Class Member was relieved of all duties' " during the
subclass period; and (3) an off-the-clock subclass comprising "all 'Class Members who
worked "off-the-clock" or without pay' " during the subclass period. (Brinker, supra, 53
Cal.4th at p. 1019.)
                                             10
reconsideration by the trial court, and concluded the trial court erred by certifying the off-

the-clock subclass. (Id. at p. 1017.)

       Brinker's significance lies in its statements on the extent to which a trial court may

or must reach the merits of a plaintiff's claim when deciding whether to certify a class.

(Brinker, supra, 53 Cal.4th at p. 1023.) Brinker stated a class certification motion "is not

a license for a free-floating inquiry into the validity of the complaint's allegations" (ibid.)

and that "[i]n many instances, whether class certification is appropriate or inappropriate

may be determined irrespective of which party is correct." (Ibid.) Although Brinker

recognized that "[w]hen evidence or legal issues germane to the certification question

bear as well on aspects of the merits, a court may properly evaluate them" (id. at

pp. 1023-1024), it cautioned that "[s]uch inquiries are closely circumscribed" (id. at

p. 1024), and "resolution of disputes over the merits of a case generally must be

postponed until after class certification has been decided [citation], with the court

assuming for purposes of the certification motion that any claims have merit [citation]."

(Id. at p. 1023.) Brinker, summarizing the controlling approach, stated that "[p]resented

with a class certification motion, a trial court must examine the plaintiff's theory of

recovery, assess the nature of the legal and factual disputes likely to be presented, and

decide whether individual or common issues predominate. To the extent the propriety of

certification depends upon disputed threshold legal or factual questions, a court may, and

indeed must, resolve them. Out of respect for the problems arising from one-way

intervention, however, a court generally should eschew resolution of such issues unless

necessary." (Id. at p. 1025, italics added.)

                                               11
       Brinker ultimately concluded plaintiff's theory of liability as to the rest break

subclass--the employer had a uniform policy that violated the mandated rest breaks under

the statute as construed by Brinker--was properly certified for class treatment. Brinker

explained class treatment was proper because there existed "a common, uniform rest

break policy . . . equally applicable to all Brinker employees [and] [c]lasswide liability

could be established through common proof if Hohnbaum were able to demonstrate that,

for example, Brinker under this uniform policy refused to authorize and permit a second

rest break for employees working shifts longer than six, but shorter than eight, hours.

Claims alleging that a uniform policy consistently applied to a group of employees is in

violation of the wage and hour laws are of the sort routinely, and properly, found suitable

for class treatment." (Brinker, supra, 53 Cal.4th at p. 1033.) Although electing to accede

to the parties' request to reach the merits of the plaintiff's theory of liability (id. at

p. 1026), Brinker unequivocally reiterated that:

           "contrary to the Court of Appeal's conclusion, the certifiability of a
           rest break subclass in this case is not dependent upon resolution of
           threshold legal disputes over the scope of the employer's rest break
           duties. The theory of liability--that Brinker has a uniform policy,
           and that that policy, measured against wage order requirements,
           allegedly violates the law--is by its nature a common question
           eminently suited for class treatment. As noted, we have at the
           parties' request addressed the merits of their threshold substantive
           disputes. However, in the general case to prematurely resolve such
           disputes, conclude a uniform policy complies with the law, and
           thereafter reject class certification--as the Court of Appeal did--
           places defendants in jeopardy of multiple class actions, with one
           after another dismissed until one trial court concludes there is some
           basis for liability and in that case approves class certification.
           [Citation.] It is far better from a fairness perspective to determine
           class certification independent of threshold questions disposing of
           the merits, and thus permit defendants who prevail on those merits,

                                                12
           equally with those who lose on the merits, to obtain the preclusive
           benefits of such victories against an entire class and not just a named
           plaintiff." (Id. at pp. 1033-1034, italics added.)

       B. Brinker's Progeny

       Subsequent cases have concluded, considering Brinker, that when a court is

considering the issue of class certification and is assessing whether common issues

predominate over individual issues, the court must "focus on the policy itself" and

address whether the plaintiff's theory as to the illegality of the policy can be resolved on a

class-wide basis. (Faulkinbury v. Boyd & Associates, Inc. (2013) 216 Cal.App.4th 220,

232 (Faulkinbury); accord, Bradley, supra, 211 Cal.App.4th at pp. 1141-1142 ["[o]n the

issue whether common issues predominate in the litigation, a court must 'examine the

plaintiff's theory of recovery' and 'assess the nature of the legal and factual disputes likely

to be presented' "]; Benton v. Telecom Network Specialists, Inc. (2013) 220 Cal.App.4th

701, 726 (Benton) ["under Brinker . . . for purposes of certification, the proper inquiry is

'whether the theory of recovery advanced by the plaintiff is likely to prove amenable to

class treatment' "].) Those courts have also agreed that, where the theory of liability

asserts the employer's uniform policy violates California's labor laws, factual distinctions

among whether or how employees were or were not adversely impacted by the allegedly

illegal policy does not preclude certification. (See, e.g., Bradley, supra, at pp. 1150-1153

[where theory of liability was employer's uniform policy violated labor laws by not

authorizing employees to take meal and rest breaks, class certification is proper and fact

some employees in fact took meal and rest breaks is a damage question that " 'will rarely

if ever stand as a bar to certification' "].)

                                                13
       Finally, those courts, although concluding the plaintiff's proffered theory of

recovery (i.e. that the challenged uniform policy violated labor laws) mandated

certification because common questions as to that theory predominated, also assiduously

adhered to Brinker's admonition to defer any determination of the legal merits of a

plaintiff's proffered theory at the class certification stage. For example, in Faulkinbury,

supra, 216 Cal.App.4th 220, the plaintiff's theory of recovery was that the employer's

policy of not providing off-duty meal breaks for its security guard employees violated the

applicable wage order, and the court concluded, under Brinker, the focus must be on the

policy itself and "whether the legality of the policy can be resolved on a classwide basis."

(Faulkinbury, at p. 232.) After concluding the lawfulness of the employer's policy of

requiring all security guard employees to sign the on-duty meal break agreement could be

determined on a class-wide basis (id. at p. 233), Faulkinbury immediately stated that

"[a]s Brinker instructs, we do not determine at this stage whether Boyd's policy of

requiring on-duty meal breaks violates the law. Instead, the question we address is

whether Boyd's legal liability under the theory advanced by Plaintiffs can be determined

by facts common to all class members. . . . Under [the theory advanced by plaintiffs,

employer's] legal liability can determined on a class basis." (Id. at p. 234.)

       Similarly, in Benton, supra, 220 Cal.App.4th 701, the plaintiff's theory of legal

liability was that the employer violated wage and hour requirements by not adopting a

policy authorizing and permitting its technicians to take meal or rest break periods

because (in plaintiffs' theory) an employer was obligated to implement procedures

ensuring its employees received notice of their meal and rest period rights and were

                                             14
permitted to exercise those rights. (Id. at pp. 724-725.) After concluding the plaintiff's

theory (whether an employer's "failure to adopt a policy" violated applicable laws) could

be determined on a class-wide basis, Benton turned to the defendants' claim that the trial

court's order denying certification could be affirmed because "the applicable wage and

hour provisions do not require employers to adopt a policy or implement procedures

ensuring that nonexempt employees are notified of their meal and rest period rights and

permitted to exercise those rights[,] [but instead] merely obligate an employer to provide

a ' "reasonable opportunity" ' to take meal and rest breaks," and therefore individual

issues would predominate because there was evidence showing many of the class

members were provided such an opportunity. (Id. at pp. 726-727.) Benton rejected this

argument in part because the employer's "assertion that it was not required to adopt the

sort of meal and rest break policy envisioned by plaintiffs goes to the merits of the

parties' dispute. The question of certification, however, is ' "essentially a procedural one

that does not ask whether an action is legally or factually meritorious." ' [(Quoting

Sav-On, supra, 34 Cal.4th at p. 326.)] Indeed, Brinker emphasized that, whenever

possible, courts should 'determine class certification independent of threshold questions

disposing of the merits.' " (Benton, at p. 727.)

       Finally, in Bradley, supra, 211 Cal.App.4th 1129, the plaintiffs' theory of recovery

was based in part on "[employer's] (uniform) lack of a rest and meal break policy and its

(uniform) failure to authorize employees to take statutorily required rest and meal

breaks." (Id. at p. 1150.) Bradley concluded that, after Brinker, class certification for

these claims was appropriate. Bradley also explained why the employer's lengthy

                                             15
argument on the merits (i.e. that the law did not require an employer to provide a written

meal or rest break policy) did not alter the analysis of whether the plaintiffs' theory of

liability was amenable to class treatment: "[First, the] plaintiffs' allegations concern the

absence of any policy, not merely a written policy. Moreover, as Brinker instructs, a

court should not address the merits of a claim in examining a class certification motion

unless necessary. It is not necessary for this court to address the issue whether a written

meal and/or rest break policy is legally required." (Bradley, at p. 1154, fn. 9.)

       C. Standard of Review

       Brinker also summarized the principles for our standard of review: "On review of

a class certification order, an appellate court's inquiry is narrowly circumscribed. 'The

decision to certify a class rests squarely within the discretion of the trial court, and we

afford that decision great deference on appeal, reversing only for a manifest abuse of

discretion: "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." [Citation.] 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. [Citations.]' [(Quoting Fireside Bank v. Superior

Court, supra, 40 Cal.4th at p. 1089, [citation].)] Predominance is a factual question;

accordingly, the trial court's finding that common issues predominate generally is

reviewed for substantial evidence. [Citation.] We must '[p]resum[e] in favor of the

certification order . . . the existence of every fact the trial court could reasonably deduce



                                              16
from the record . . . .' [(Quoting Sav-On, supra, 34 Cal.4th at p. 329.)]" (Brinker, supra,

53 Cal.4th at p. 1022.)

                                              III

                      ANALYSIS OF DECERTIFICATION ORDER

       The trial court's order decertifying the class action was based on its predicate

determination that, for purposes of whether section 14 mandates provision of a suitable

seat, it agreed with Rite Aid that the term "nature of the work" required it to examine

whether the job as a whole reasonably permits the use of seats, and rejected the merits of

Hall's theory of liability that Rite Aid's policy of requiring its Cashier/Clerks to stand

while performing check-out work violated section 14's mandate because the nature of

check-out work reasonably permits the use of seats, regardless of the amount of time any

particular Cashier/Clerk might spend on other duties.6

       Hall asserts the trial court first erred by reaching and resolving this predicate

determination, and this error alone requires reversal of the decertification order. Hall



6        As a preliminary matter, Hall argues the court was precluded from decertifying the
class because there was no new law or facts warranting decertification. However, an
order granting class certification is "subject to modification at any time." (Shelley v. City
of Los Angeles (1995) 36 Cal.App.4th 692 [order granting certification not appealable
until after final judgment].) Indeed, our Supreme Court has recognized that it may occur
" 'that the trial court will determine in subsequent proceedings that some of the matters
bearing on the right to recovery require separate proof by each class member. If this
should occur, the applicable rule . . . is that the maintenance of the suit as a class action is
not precluded so long as the issues which may be jointly tried, when compared to those
requiring separate adjudication, justify the maintenance of the suit as a class action.'
[(Quoting Vasquez v. Superior Court (1971) 4 Cal.3d 800, 815.)] And if unanticipated or
unmanageable individual issues do arise, the trial court retains the option of
decertification." (Sav-On, supra, 34 Cal.4th at p. 335.)
                                              17
asserts Brinker, as well as subsequent decisions applying Brinker, stand for the

proposition that (1) the certification phase is limited to determining whether the plaintiff's

theory of liability is amenable to class treatment and a court should not reach the merits

of that theory, and (2) when (as here) the plaintiff's theory alleges the employer has a

uniform policy that offends labor laws, such an action "by its nature [involves] a common

question eminently suited for class treatment" (Brinker, supra, 53 Cal.4th at p. 1033) and

any distinctions in the actual work experience of employees governed by such policy do

not preclude certification.

       Our review of Brinker, which is binding on this court (Auto Equity Sales, Inc. v.

Superior Court (1962) 57 Cal.2d 450), compels the conclusion the trial court erroneously

based its decertification order on its assessment of the merits of Hall's claim rather than

on the theory of liability advanced by Hall. We are instructed under Brinker that the

starting point for purposes of class certification commences with Hall's theory of liability

because, "for purposes of certification, the proper inquiry is 'whether the theory of

recovery advanced by the plaintiff is likely to prove amenable to class treatment.' "

(Benton,, supra, 220 Cal.App.4th at p. 726.) Here, as in Brinker and its progeny, Hall

alleged (and Rite Aid did not dispute) that Rite Aid had a uniform policy of the type

envisioned by Brinker: Rite Aid did not allow its Cashier/Clerks to sit (and therefore

provided no suitable seats for its Cashier/Clerks) while they performed check-out

functions at the register. Hall's theory of liability is that this uniform policy was unlawful

because section 14 mandates the provision of suitable seats when the nature of the work

reasonably permits the use of seats, and the nature of the work involved in performing

                                             18
check-out functions does reasonably permit the use of seats. Hall's proffered theory of

liability is that, regardless of the amount of time any particular Cashier/Clerk might spend

on duties other than check-out work, Rite Aid's uniform policy transgresses section 14

because suitable seats are not provided for that aspect of the employee's work that can be

reasonably performed while seated.

       It does not appear that any aspect central to Hall's theory of recovery (i.e. what is

Rite Aid's policy, and whether the nature of the work involved in performing check-out

functions would reasonably permit the use of seats) would not be amenable to common

proof. Indeed, the trial court's decertification order did not make a contrary

determination (i.e., those inquiries would not be amenable to common proof), but was

instead based on its conclusion that Hall's theory of liability was unmeritorious.

Specifically, it concluded, contrary to Hall's postulated theory, that section 14 does not

mandate the provision of suitable seats when the nature of a substantial task within an

employee's range of duties would reasonably permit the use of seats, but instead

mandates the provision of suitable seats only when the nature of an employee's work as a

whole would reasonably permit the use of seats. Based on that construction of section 14,

the trial court concluded decertification was proper because individual issues as to each

class member's "job as a whole" would predominate over common questions. However,

under Brinker as construed by Bradley, Benton and Faulkinbury, the trial court's

decertification order was based on improper criteria and/or erroneous legal assumptions

and must be reversed because it based its ruling on the merits of Hall's theory rather than

on whether the theory itself would be amenable to common evidentiary proof.

                                             19
       Rite Aid's arguments on appeal largely ignore the analysis of Bradley, Benton and

Faulkinbury. Instead, Rite Aid asserts the trial court properly reached the merits of (and

correctly rejected) Hall's theory of liability when it ruled on the decertification motion

because Brinker cannot be read to permit a plaintiff to "invent a class action by proposing

an incorrect rule of law and arguing, 'If my rule is right, I win on a class basis.' "

However, Rite Aid's argument appears to overlook the import of Brinker's statement that

           "the certifiability of a rest break subclass in this case is not
           dependent upon resolution of threshold legal disputes over the scope
           of the employer's rest break duties. The theory of liability--that
           Brinker has a uniform policy, and that that policy, measured against
           wage order requirements, allegedly violates the law--is by its nature
           a common question eminently suited for class treatment. . . . [I]n the
           general case to prematurely resolve such disputes, conclude a
           uniform policy complies with the law, and thereafter reject class
           certification--as the Court of Appeal did--places defendants in
           jeopardy of multiple class actions, with one after another dismissed
           until one trial court concludes there is some basis for liability and in
           that case approves class certification. [Citation.] It is far better from
           a fairness perspective to determine class certification independent of
           threshold questions disposing of the merits, and thus permit
           defendants who prevail on those merits, equally with those who lose
           on the merits, to obtain the preclusive benefits of such victories
           against an entire class and not just a named plaintiff." (Brinker,
           supra, 53 Cal.4th at pp. 1033-1034, italics added.)

       We read Brinker to hold that, at the class certification stage, as long as the

plaintiff's posited theory of liability is amenable to resolution on a class-wide basis, the

court should certify the action for class treatment even if the plaintiff's theory is

ultimately incorrect at its substantive level, because such an approach relieves the

defendant of the jeopardy of serial class actions and, once the defendant demonstrates the

posited theory is substantively flawed, the defendant "obtain[s] the preclusive benefits of


                                              20
such victories against an entire class and not just a named plaintiff." (Brinker, supra, 53

Cal.4th at pp. 1034, 1033.) For these reasons, Brinker has concluded "[i]t is far better

from a fairness perspective to determine class certification independent of threshold

questions disposing of the merits, [because] defendants who prevail on those merits,

equally with those who lose on the merits" (id. at p. 1034) have the benefits of their

substantive legal victory applied to the class as a whole.

       Rite Aid, seizing on Brinker's observation that "[t]o the extent the propriety of

certification depends upon disputed threshold legal or factual questions, a court may, and

indeed must, resolve them" (Brinker, supra, 53 Cal.4th at p. 1025, italics added), argues

the court properly evaluated the merits of Hall's legal theory as a predicate to ruling on

the decertification motion. However, Brinker repeatedly cautioned that "[s]uch inquiries

are closely circumscribed" (id. at p. 1024) and ordinarily should not be addressed as part

of the certification evaluation. (Id. at p. 1023 ["resolution of disputes over the merits of a

case generally must be postponed until after class certification has been decided [citation]

with the court assuming for purposes of the certification motion that any claims have

merit"].) We interpret the highlighted language in the passage from Brinker cited by Rite

Aid to mean, by negative implication, that to the extent the propriety of certification does

not depend on determining threshold legal matters, such determinations should be

deferred.7 Here, the propriety of certification does not depend on whether Hall's



7       Rite Aid cites no relevant authority, other than the quoted passages from Brinker,
holding that trial courts may resolve the merits of a plaintiff's claim as a predicate to the
certification determination. Although Rite Aid cites Marlo v. United Parcel Service, Inc.
                                             21
interpretation of section 14 is correct because, "assuming for purposes of the certification

motion [Hall's] claims have merit," the certification question must focus on whether

common questions relevant to proving Hall's theory would predominate over individual

issues. Certainly, whether Rite Aid had a policy requiring Cashier/Clerks to stand while

working at the register is subject to common proof. Moreover, the other factual question

central to Hall's theory of recovery--whether the nature of the work involved in

performing check-out functions would reasonably permit the use of seats--appears equally

amenable to common proof. Thus, regardless of whether Hall's or Rite Aid's

interpretation of section 14's mandate is correct, class certification for Hall's claim would

be proper,8 and resolution of disputes over the merits of Hall's theory of recovery must

be deferred until after the class certification has been decided.



(C.D.Cal. 2008) 251 F.R.D. 476 as additional authority purporting to approve an
examination and resolution of the merits of a plaintiff's claim as a predicate to the
certification determination, Marlo does not stand for that proposition. To the contrary, it
appears Marlo's concern when it considered decertification was whether class-wide
treatment was feasible because it observed there would be an absence of commonality in
the evidence necessary to prove the underlying claim (id. at pp. 480-481), and Marlo
expressly cautioned that it was "careful to distinguish this observation from the kind of
merits-determination that is disfavored with respect to class certification decisions.
When considering class certification, a court should not weigh the evidence or otherwise
evaluate the merits of a plaintiff's class claim." (Id. at p. 480, fn. 2, italics added.)

8       This question--whether common issues would predominate over individualized
issues in deciding if the nature of the work involved in performing check-out functions
would reasonably permit the use of seats--is of course vested in the first instance to the
trial court's discretion, and we caution our observations should not be construed as
deciding this question de novo or as holding that, as a matter of law, the common factual
questions relevant to proving Hall's theory of liability necessarily predominate over
individualized questions. However, because the trial court originally found in favor of
certification, and its subsequent decertification order was premised on its conclusion that
                                             22
       We conclude that under Brinker, consistent with the decisions in Bradley, Benton

and Faulkinbury, the trial court's decertification order was based on improper criteria

and/or erroneous legal assumptions and must be reversed because it was based on the

merits of Hall's theory rather than on whether the theory itself would be amenable to

common treatment of the evidentiary or legal issues.

                                              IV

                                THE REMAINING ISSUES

       Because we conclude the trial court's decertification order must be reversed, we

need not reach Hall's alternative claim that the action should have been permitted to

proceed as a representative nonclass action under PAGA. However, we briefly address

one other argument presented by Hall on appeal. Hall acknowledges that Brinker

admonishes against deciding the merits of the plaintiff's theory of liability when such

decision is unnecessary to the certification question, and also acknowledges such decision

on the merits should be postponed until after the certification issue is determined and

would be binding on the class. However, notwithstanding Brinker's admonitions, Hall

argues we are required to decide the proper construction of section 14's mandate because

the trial court resolved the merits and therefore "as in Brinker, [this court] must reach out

to decide that ill-timed and incorrectly decided issue."

       We decline Hall's invitation to reach the merits of the parties' competing

constructions of section 14, for several reasons. First, we adhere to Brinker's instructions

Hall's theory of recovery was substantively flawed, we do not construe the trial court's
decertification order as signaling an intention to reverse its original decision that class
treatment of Hall's theory of recovery was appropriate.
                                              23
that, unless necessary to the certification issue, a court should not decide the merits of the

plaintiff's theory when evaluating the certification issue. As previously discussed, other

post-Brinker decisions have followed that instruction and evaluated rulings on

certification motions while declining to reach issues impacting the merits of the plaintiff's

theory of liability. (Faulkinbury, supra, 216 Cal.App.4th at p. 234 ["[a]s Brinker

instructs, we do not determine at this stage whether Boyd's policy of requiring on-duty

meal breaks violates the law"]; Benton, supra, 220 Cal.App.4th at pp. 726-727 [rejecting

defendant's claim the order denying certification could be affirmed because applicable

wage and hour provisions are satisfied if employer provides "reasonable opportunity" to

take meal and rest breaks because this "assertion that it was not required to adopt the sort

of meal and rest break policy envisioned by plaintiffs goes to the merits of the parties'

dispute"]; Bradley, supra, 211 Cal.App.4th at p. 1154, fn. 9 ["[A]s Brinker instructs, a

court should not address the merits of a claim in examining a class certification motion

unless necessary. It is not necessary for this court to address the issue whether a written

meal and/or rest break policy is legally required."].) Indeed, Hall's argument appears to

constitute an invitation to this court to travel the same path as it did in Brinker--of ruling

on the merits of the plaintiff's theory when evaluating a trial court's ruling on a

certification motion--which our Supreme Court in Brinker determined was error requiring

reversal of the appellate court's opinion.

       Although Hall argues her suggestion falls within the ambit of Brinker's approach,

Brinker reached the merits only because it recognized there was " 'nothing to prevent a

court from considering the legal sufficiency of claims when ruling on certification where

                                              24
both sides jointly request such action.' [(Quoting Linder, supra, 23 Cal.4th at p. 443.)]"

(Brinker, supra, 53 Cal.4th at p. 1026.) We have found no request from Rite Aid that,

assuming we vacated the decertification order, we reach the merits of Hall's claim and

resolve the merits of Hall's theory of recovery in a manner that would become binding on

the class and on Rite Aid. Moreover, even assuming Rite Aid's brief on appeal could be

construed to include an embedded request to resolve the merits of Hall's theory, it appears

the power to reach the merits as part of the certification process is at most a discretionary

power to be employed in exceptional cases. (Cf. Linder, at p. 443 ["we do not foreclose

the possibility that, in the exceptional case where the defense has no other reasonable

pretrial means to challenge the merits of a claim to be asserted by a proposed class, the

trial court may, after giving the parties notice and an opportunity to brief the merits

question, refuse class certification because the claim lacks merit as a matter of law"],

italics added.)

       Here, Rite Aid does have other "reasonable pretrial means to challenge the merits

of [Hall's] claim," such as a motion for summary adjudication or for judgment on the

pleadings (cf. Linder, supra, 23 Cal.4th at p. 440 ["[w]hen the substantive theories and

claims of a proposed class suit are alleged to be without legal or factual merit, the

interests of fairness and efficiency are furthered when the contention is resolved in the

context of a formal pleading (demurrer) or motion (judgment on the pleadings, summary

judgment, or summary adjudication) that affords proper notice and employs clear

standards"]), and we therefore believe it is more appropriate to adhere to the general rule

against resolving issues unnecessary to the disposition of this appeal. (Cf. Conte v.

                                             25
Wyeth, Inc. (2008) 168 Cal.App.4th 89, 114 ["[a]s a general rule, we will not resolve an

issue that is unnecessary to disposition of an appeal"].) Moreover, it would be premature

to resolve the merits of Hall's theory because, although we have reversed the present

decertification order, we have done so because it was predicated on a premature

assessment of the merits of Hall's claim rather than because the trial court was

categorically precluded from decertifying the class for other and proper reasons. (See fn.

8, ante.) Rather than resolve a question that could be potentially mooted by subsequent

rulings, we believe the prudent course is to remand the matter to the trial court for orderly

resolution of the claims asserted by Hall.

                                      DISPOSITION

       The trial court's order granting Rite Aid's Motion for Class Decertification entered

October 29, 2012, is reversed, and the matter is remanded for further proceedings

consistent with this opinion. Hall shall recover costs on appeal.




                                                                           McDONALD, J.

WE CONCUR:


BENKE, Acting P. J.


HALLER, J.




                                             26
Filed 5/16/14

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                   STATE OF CALIFORNIA



KRISTIN HALL,                                      D062909

        Plaintiff and Appellant,

        v.                                         (Super. Ct. No.
                                                    37-2009-00087938-CU-OE-CTL)
RITE AID CORPORATION,
                                                   ORDER CERTIFYING OPINION
        Defendant and Respondent.                  FOR PUBLICATION



THE COURT:

        The opinion filed May 2, 2014, is ordered certified for publication.




                                                                      BENKE, Acting P. J.

Copies to: All parties




                                             27
