Filed 12/30/13 Johnson v. California Pizza Kitchen CA2/3
              NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                SECOND APPELLATE DISTRICT

                                           DIVISION THREE



DAVID JOHNSON et al.,                                                    B234542 consolidated w/B234670

         Plaintiffs and Appellants,                                     (Los Angeles County
                                                                        Super. Ct. Nos. BC373758,
         v.                                                              BC389448 & BC441231)

CALIFORNIA PIZZA KITCHEN, INC.,

         Defendant and Respondent.




         APPEAL from an order of the Superior Court of Los Angeles County,
Elihu M. Berle, Judge. Affirmed.
         Initiative Legal Group, Capstone Law, Glenn A. Danas, Robert K. Friedl;
Rastegar & Matern, Matthew J. Matern and S. Emi Ikeda Minne for Plaintiffs and
Appellants.
         Jones Day, Rick Bergstrom and Cindi Ritchey for Defendant and
Respondent.

                                   _________________________
       Plaintiffs and appellants David Johnson (Johnson), Jacob Hernandez
(Hernandez), Jose Martinez (Martinez) and Jaime Lopez (Lopez) (collectively,
plaintiffs), who were non-exempt employees of defendant and respondent
California Pizza Kitchen, Inc. (CPK), appeal an order denying their motion for
class certification.1 As relevant to this appeal, plaintiffs sought to certify four
subclasses of current and former employees of, asserting CPK violated California
law with respect to (1) off-the-clock work; (2) meal breaks; (3) rest breaks; and
(4) wage statements.
       The essential issue presented is whether the trial court abused its discretion
in denying class certification.
       The record supports the trial court’s determination that common issues of
fact and law do not predominate. Therefore, the trial court properly exercised its
discretion in denying class certification. The order is affirmed.
              FACTUAL AND PROCEDURAL BACKGROUND
       1. Employer’s obligations with respect to meal and rest periods for
nonexempt employees.
       By way of background, state law “obligates employers to afford their
nonexempt employees meal periods and rest periods during the workday.
(See Lab. Code, §§ 226.7, 512; [Industrial Welfare Commission (IWC)] wage
order No. 5–2001 (Cal. Code Regs., tit. 8, § 11050), hereafter Wage Order No. 5.)
[2] Labor Code section 226.7, subdivision (a) [3] prohibits an employer from
requiring an employee ‘to work during any meal or rest period mandated by an
applicable order of the Industrial Welfare Commission.’ In turn, Wage Order


1
       An order denying a motion for class certification is appealable.
(Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470.)
2
       The IWC issues wage orders on an industry-by-industry basis. Wage Order
No. 5 governs restaurant employees, among others. (Brinker Restaurant Corp. v.
Superior Court (2012) 53 Cal.4th 1004, 1018, fn. 1 (Brinker).)
3
       All further statutory references are to the Labor Code, unless otherwise
specified.
                                           2
No. 5, subdivision 12 prescribes rest periods, while subdivision 11, as well as
section 512 of the Labor Code, prescribes meal periods. Employers who violate
these requirements must pay premium wages. (§ 226.7, subd. (b); Wage Order
No. 5, subds. 11(B), 12(B); see Murphy v. Kenneth Cole Productions, Inc.
[(2007)] 40 Cal.4th [1094,] 1114.)” (Brinker, supra, 53 Cal.4th at p. 1018.)
       With respect to meal breaks, Labor Code section 512 provides in pertinent
part at subdivision (a): “An employer may not employ an employee for a work
period of more than five hours per day without providing the employee with a
meal period of not less than 30 minutes, except 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.”
       With respect to CPK’s duty to provide rest periods, Wage Order No. 5
states in relevant part at subdivision 12(A): “Every employer shall authorize and
permit all employees to take rest periods, which insofar as practicable shall be in
the middle of each work period. The authorized rest period time shall be based on
the total hours worked daily at the rate of ten (10) minutes net rest time per four
(4) hours or major fraction thereof. However, a rest period need not be authorized
for employees whose total daily work time is less than three and one-half (3 1/2)
hours.” (Cal. Code Regs., tit. 8, § 11050, italics added; Brinker, supra, 53 Cal.4th
at p. 1028.) Thus, “[e]mployees are entitled to 10 minutes’ rest for shifts from
three and one-half to six hours in length, 20 minutes for shifts of more than six
hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours,
and so on.” (Brinker, supra, at p. 1029.)
       2. Pleadings.
       On November 1, 2007, Martinez and Lopez filed a first amended class
action complaint alleging wage and hour violations against CPK. On April 22,
2008, Johnson filed a class action complaint, alleging similar wage and hour
violations against CPK. On August 4, 2010, Hernandez filed a class action
complaint, alleging similar Labor Code violations against CPK. The three cases

                                            3
were related and plaintiffs presented a joint motion for class certification to the
trial court.
        Plaintiffs alleged, inter alia, that CPK failed to compensate employees for
off-the-clock work, and that employees frequently worked off the clock, receiving
no pay for time spent performing opening and closing duties and working through
meal and rest breaks, even when they were clocked out for such breaks. Further,
although CPK’s written policies were “facially compliant,” CPK chronically
understaffed its restaurants, resulting in employees regularly missing meal and rest
periods, taking their meal and rest periods late, or having those meal and rest
breaks interrupted. In addition, CPK failed to furnish its employees with an
accurate itemized wage statement showing all applicable hourly rates and total
hours worked, in violation of section 226, subdivision (a).
        3. The motion for class certification.
        Plaintiffs’ motion for class certification unsuccessfully sought to certify
five subclasses of current or former CPK employees. Four of the subclasses are
the subject of this appeal.4 The four subclasses in issue are as follows:
        (1) The Off-the-Clock Work Subclass, consisting of “[a]ny hourly paid
employees of Defendant who worked at a restaurant location in California within
four years prior to the filing of this complaint until the date of certification.”
        (2) The Meal Period Subclass, consisting of “[a]ny hourly paid employees
of Defendant who worked a shift of more than five hours at a restaurant location in
California at any time from May 2008 until the date of certification.”
        (3) The Rest Period Subclass, consisting of “[a]ny hourly paid employees
of Defendant who worked a shift of four hours or more at a restaurant location in
California from May 2008 until the date of certification.”




4
       On appeal, plaintiffs do not challenge the trial court’s denial of a fifth
subclass pertaining to unreimbursed business expenses.
                                            4
         (4) The Wage Statement Subclass, consisting of “[a]ny hourly employee of
Defendant who worked in California within one year prior to the filing of this
complaint and received one or more wage statement.”
         4. Trial court’s ruling.
         On May 13, 2011, following extensive briefing and argument, the trial
court denied the motion for class certification for the reasons read into the record
that day. The trial court noted at the outset that in determining whether the
requirements of class certification have been met, the court does not evaluate
whether the claims asserted are legally or factually meritorious. (Linder v. Thrifty
Oil Co. (2000) 23 Cal.4th 429, 439-440.) Further, plaintiffs’ burden on moving
for class certification was not merely to show that some common issues exist, but,
rather, to place substantial evidence in the record that common issues
predominate. (Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096,
1108.)
         Turning to the specific factors which the trial court must consider on a
motion for certification, the trial court found as follows:
         (a) The requirement of numerosity was satisfied. Plaintiffs claimed that
CPK has 20,000 employees in the alleged classes. CPK disputed that number,
but did not seriously contest numerosity, especially considering that there are
80 locations in California.
         (b) The requirement of ascertainability also was met. In defining an
ascertainable class, the goal is to use terminology that will convey sufficient
meaning to enable persons hearing the definition to determine whether they are
members of the class plaintiffs wish to represent; this requires a class definition
that is precise, objective and presently ascertainable. (Global Minerals & Metals
Corp. v. Superior Court (2003) 113 Cal.App.4th 836, 858.) Here, ascertainability
was satisfied for the subclasses that were being proposed by plaintiffs.




                                           5
       (c) The requirement of typicality also was met. Typicality requires that
class representatives have the same interests and have suffered the same injuries as
members of the proposed class. Based on the evidence presented, the typicality
factor had been met.
       (d) The requirement of adequacy also was satisfied. The trial court found
plaintiffs were adequate representatives and further found plaintiffs’ counsel was
more than adequate to represent the class.
       (e) The trial court then addressed the issue of community of interest, which
was the “most hotly contested in this case.”
              (i) The Off-the-Clock work subclass.
       With respect to the proposed off-the-clock work subclass, the trial court
found, inter alia: “only 42 of the 89 declarations claim off-the-clock work. If off-
the-clock work was widespread resulting in a company policy or practice enough
to merit class treatment, one would think that most, if not all, of plaintiff’s small
sample would have been able to report off-the-clock work. [¶] Therefore, the
court concludes that the plaintiff’s argument that there is a company policy of off-
the-clock work is not supported by substantial evidence and the court finds that the
claims of off-the-clock work cannot be established by common proof. [¶] The
variance in evidence leads to the conclusion that this is really an individualized
issue based on the employee, the manager, the shift, the restaurant, which will
required hundreds, if not thousands, of mini-trials to determine if an employee
worked off the clock, and if so, how much time was or was not recorded and
whether the employee was paid for this off-the-clock work.”
              (ii) The meal period subclass.
       In this regard, the trial court found, inter alia:
       “Plaintiff offers anecdotal evidence of declarations of approximately 35 of
the 89 putative class members who offered declarations with regard to failure to
provide meal breaks. [¶] Each of those declarations state that employees rarely, if
ever, received premium pay for missed meal breaks. 18 of the 89 putative class

                                            6
members declared that managers required employees to return to work during
meal breaks. 21 declared that breaks were interrupted and not provided due to
high customer demand and heavy workloads.
       “Defendant’s evidence shows that some of the testimony changed at
deposition. Defendant points out 54 of the 89 plaintiff declarants did not testify to
any missed or interrupted meal breaks at all or testified about experiences that
predate the class period that plaintiff seeks to certify. [¶] If there was a common
practice or policy regarding missed meal breaks to merit class treatment,
presumably, it would be widespread, and then most, if not all, of plaintiff’s sample
would have been able to report some missed meal breaks. However, there is not
substantial evidence to support that proposition. [¶] Based on the evidence
submitted, it does not appear to be a companywide practice or policy regarding
disallowance of meal breaks that can be established by common evidence.
[¶] . . . [¶] The evidence suggests that in order for plaintiff to establish that
defendant violated meal break laws, plaintiff would have to present an analysis
restaurant by restaurant, shift by shift, manager by manager, perhaps employee by
employee. This does not lend itself to class treatment. Thus, common proof would
be absent and plaintiff would have to rely on individual evidence which would not
be appropriate for class treatment.”
              (iii) The rest period subclass.
       The trial court’s analysis with respect to the rest period subclass was
similar.
       “Defendant points out many of the plaintiff's declarations as well as other
class members have testified that they have never been denied a rest break and
never had a rest break interrupted. [¶] Defendant points out that 55 of the 89
declarants do not testify that they missed any rest breaks or testified about
experiences that predate the class period. [¶] Defendant cites the declaration of
plaintiff’s expert reflecting that the time records of the putative class members
who worked shifts of more than four hours recorded ten-minute rest breaks in

                                            7
99.42 percent of the time. [¶] According to the defendant, the data which
plaintiff’s expert, Dr. Lackritz, reviewed contained information about 33,135
shifts longer than four hours and showed that a full 10-minute break was recorded
in all but 204 shifts. [¶] The analysis for the claimed missed rest break issue is
similar to the analysis of the meal break claims and the off-the-clock claims.
       “First, plaintiff has not demonstrated understaffing is amenable to common
proof. The court also finds that plaintiff has not demonstrated a violation of the
rest break regulation is subject to common proof. [¶] Apparently, some
percentage of class members experience violations while a larger percentage do
not. Plaintiff has not met the burden to show that there is a common policy or
practice with respect to rest breaks which can be established by common evidence.
[¶] The evidence suggests that in order for plaintiff to prove its claims that
defendant violated the labor law of rest breaks, plaintiff would have to present an
analysis restaurant by restaurant, shift by shift, manger by manager, employee by
employee. [¶] The evidence that plaintiff has submitted does not support a
common issue of a company policy or a company practice or even a regular
occurrence, a regular custom, a regular habit, or course of conduct concerning rest
breaks.”
              (iv) The wage statements subclass.
       In this regard, the trial court ruled: “The plaintiff claims that there is a
common issue of wage statements in this case. In essence, this is a derivative
claim of the off-the-clock meal and rest claims because the claim for insufficient
wage statements is based upon the claim that the wage statement was deficient
because of violations of the off-the-clock work law and the meal break law and the
rest break law.
       “Since the court finds that the claims with regard to the alleged off-the-
clock work, the meal break and the rest periods are not amenable to class
treatment because these claimed violations depend on individual proof, the court


                                           8
concludes that the derivative wage statement class allegations are also based upon
individualized evidence and also are not subject to common policy or proof.”
       (f) Lastly, the trial court addressed the issue of superiority, i.e., whether
class treatment would be superior to individualized treatment in this case. The
trial court “concluded that plaintiffs have not met the burden of showing that
common questions predominate on the claims raised, and as a necessary corollary,
class treatment would not be superior to individual treatment.”
       The trial court reasoned: “In this case, the trier of fact would have to
determine: [¶] Did [CPK] employees actually work off the clock, and if so, how
much time; [¶] Did the employer know or should have known that the employees
were working off the clock; [¶] Did the employees receive any compensation for
working off the clock; [¶] Did employees miss meal breaks; [¶] Were the meal
breaks waived? If not waived, did they receive any compensation; [¶] Did
employees miss rest breaks; [¶] Were the rest breaks waived; [¶] . . . [¶] Thus,
the individual members of the putative class would have to litigate substantial and
numerous unique questions before recovery may be allowed. [¶] In light of the
size of the proposed class, there could be thousands of individualized mini-trials.
[¶] Based upon this, the court finds the individual questions of proof predominate
over common issues and class treatment is not superior to individual lawsuits. [¶]
As a consequence, the court denies plaintiff’s motion to certify this case as a class
action.”
       This appeal followed.
                                 CONTENTIONS
       Plaintiffs contend: the trial court’s order denying class certification should
be vacated because it rests on incorrect legal assumptions and incorrect criteria;
Brinker changed the legal landscape such that the trial court operated under
erroneous legal assumptions; the trial court erroneously assumed there is no such
thing as a late meal period claim; the trial court erroneously assumed that theories
based on “chronic understaffing” have been rejected by the courts; the trial court

                                           9
erroneously assumed an employer’s time records do not provide a common
method of proof and therefore certification would result in numerous mini-trials in
which class members would have to show why they did not take breaks; the trial
court’s order is based on incorrect criteria and is not supported by substantial
evidence; the denial of the wage statement subclass is not supported by substantial
evidence and is based on incorrect legal assumptions and incorrect criteria; and the
trial court applied improper criteria in determining a class action is not superior to
separate lawsuits by class members.
                                    DISCUSSION
       1. Standard of appellate 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.]’ [Citations.] 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 from the record . . . .’ [Citation.]” (Brinker, supra, 53 Cal.4th
at p. 1022, italics added.)
       2. General principles.
               a. Class action requirements.
       Originally “creatures of equity, class actions have been statutorily
embraced by the Legislature whenever ‘the question [in a case] is one of a
common or general interest, of many persons, or when the parties are numerous,

                                           10
and it is impracticable to bring them all before the court . . . .’ [Citations.]”
(Brinker, supra, 53 Cal.4th at p. 1021; Code Civ. Proc. § 382.)
       The California Supreme Court has identified three requirements for the
certification of a class: (1) “the existence of an ascertainable and sufficiently
numerous class”; (2) “a well-defined community of interest”; and (3) “substantial
benefits from certification that render proceeding as a class superior to the
alternatives.” (Brinker, supra, 53 Cal.4th at p. 1021.) The community of interest
requirement in turn has three factors: (1) common questions of law or fact
predominate over individual questions; (2) the class representatives have claims or
defenses typical of the class; and (3) the class representatives can adequately
represent the class. (Ibid.)
              b. The Brinker decision.
       In Brinker, the trial court certified a class of about 60,000 current and
former nonexempt employees of defendant corporations that owned and operated
several restaurant chains. (Brinker, supra, 53 Cal.4th at pp. 1017-1018, 1019,
fn. 4.) The class action complaint alleged the defendants violated state laws
requiring meal and rest breaks for nonexempt hourly employees and accurate
recording of employee work time. (Id. at pp. 1018-1019.) 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; (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; and (3) an off-the-clock
subclass comprising all class members who worked off-the-clock or without pay
during the subclass period. (Id. at p. 1019.)




                                           11
       The Court of Appeal granted writ relief and reversed class certification as
to the three disputed subclasses. (Brinker, supra, 53 Cal.4th at p. 1021.) The
California Supreme Court granted review “to resolve uncertainties in the handling
of wage and hour class certification motions.” (Ibid.)
       With respect to the three subclasses, the Supreme Court concluded the trial
court properly certified a rest break subclass, remanded the question of
certification of the meal break subclass for reconsideration by the trial court, and
concluded the trial court erred in certifying the off-the-clock subclass. (Brinker,
supra, 53 Cal.4th at p. 1017.) After reviewing general class action principles, the
Supreme Court addressed the extent to which a trial court must address the
elements and merit of a plaintiff's claim when deciding whether to certify a class.
(Id. at p. 1023.)
       The Supreme Court confirmed a class certification motion should not be
a vehicle for resolving the merits of a claim, but 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.” (Brinker, supra, 53 Cal.4th at
pp. 1023-1024.) The court concluded: “Presented 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. [Citations.] Consequently, a trial court does not abuse its
discretion if it certifies (or denies certification of) a class without deciding one or
more issues affecting the nature of a given element if resolution of such issues
would not affect the ultimate certification decision.” (Id. at p. 1025.)




                                           12
       The Supreme Court then considered the scope of an employer’s duties
under relevant statutes and IWC wage orders to afford rest and meal periods to
employees. (Brinker, supra, 53 Cal.4th at pp. 1027-1028.)
       As to the rest break claim and subclass, the Brinker court clarified that the
applicable wage order, Wage Order No. 5, requires an employer to provide an
employee with a 10-minute rest break for shifts from three and one-half hours to
six hours in length, a 20-minute rest break for shifts of more than six hours up to
10 hours, and a 30-minute rest break for shifts of more than 10 hours up to 14
hours. (Brinker, supra, 53 Cal.4th at p. 1029.) The defendant employers had a
written rest period policy, applicable to all employees, under which employees
were provided only one 10-minute rest break for every four hours worked, when
they should be provided a second break after six hours. (Id. at p. 1033.) Brinker
held the trial court properly certified a rest break subclass because “[c]lasswide
liability could be established through common proof if [the plaintiffs] were able to
demonstrate that, for example, [the employers] 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.” (Ibid.) Brinker recognized that “[c]laims
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. [Citations.]” (Brinker, supra, 53 Cal.4th at p. 1033.)
       Further as to the rest break subclass, Brinker observed that class
certification did not depend on resolution of threshold legal disputes over the
scope of the employer’s rest break duties. (Brinker, supra, 53 Cal.4th at p. 1033.)
Brinker emphasized it addressed the merit of those substantive disputes only at the
parties’ request. (Id. at pp. 1033-1034.) In general, and absent such a request,
“[i]t is far better from a fairness perspective” to decide class certification
independently from the merits. (Id. at p. 1034.)




                                           13
       As to the meal break claim and subclass, Brinker began by considering the
nature and scope of an employer’s duty to provide a meal period. (Brinker, supra,
53 Cal.4th at p. 1034.) It concluded that under the applicable statute and wage
order, “an employer’s obligation when providing a meal period is to relieve its
employee of all duty for an uninterrupted 30-minute period.” (Id. at p. 1038.)
Brinker explained: “An employer’s duty with respect to meal breaks [citations]
is an obligation to provide a meal period to its employees. The employer satisfies
this obligation if it relieves its employees of all duty, relinquishes control over
their activities and permits them a reasonable opportunity to take an uninterrupted
30-minute break, and does not impede or discourage them from doing so. What
will suffice may vary from industry to industry, and we cannot in the context of
this class certification proceeding delineate the full range of approaches that in
each instance might be sufficient to satisfy the law. [¶] On the other hand, the
employer is not obligated to police meal breaks and ensure no work thereafter is
performed. Bona fide relief from duty and the relinquishing of control satisfies the
employer’s obligations, and work by a relieved employee during a meal break
does not thereby place the employer in violation of its obligations and create
liability for premium pay [citations].” (Id. at pp. 1040-1041.)
       Brinker also resolved substantive issues regarding the timing of meal
breaks. It held: “[A]n employer’s obligation is to provide a first meal period after
no more than five hours of work and a second meal period after no more than
10 hours of work.” (Brinker, supra, 53 Cal.4th at p. 1049.)
       Returning to the question of class certification, Brinker remanded the
matter to the trial court to reconsider certification of the meal break subclass in
light of its clarification of the law. (Brinker, supra, 53 Cal.4th at pp. 1049-1051.)
Brinker explained: “Our subsequent ruling on [the plaintiffs’] meal timing theory,
solicited by the parties, has changed the legal landscape; whether the trial court
may have soundly exercised its discretion before that ruling is no longer relevant.
At a minimum, our ruling has rendered the class definition adopted by the trial

                                          14
court overinclusive: The definition on its face embraces individuals who now
have no claim against [the employers]. In light of our substantive rulings, we
consider it the prudent course to remand the question of meal subclass certification
to the trial court for reconsideration in light of the clarification of the law we have
provided.” (Id. at pp. 1050-1051.)
       As to the off-the-clock claim and subclass, the plaintiffs alleged the
defendant employers required employees to perform work while clocked out
during meal periods and did not afford them an uninterrupted 30 minutes.
(Brinker, supra, 53 Cal.4th at p. 1051.) Brinker concluded substantial evidence
did not support the trial court’s conclusion that common issues predominated with
respect to the off-the-clock subclass. (Ibid.) For the off-the-clock claim and
subclass, the plaintiffs had presented no evidence of a uniform policy allegedly in
conflict with the Labor Code and relevant IWC wage order. (Brinker, supra, at
p. 1051.) The only formal employer policy disavowed off-the-clock work, and the
plaintiffs presented no evidence of “a systematic company policy to pressure or
require employees to work off-the-clock.” (Ibid.)
       With respect to the off-the-clock subclass, Brinker also based its decision
on the plaintiff’s failure to present evidence rebutting the presumption that an
employee who has clocked out is performing no work. (Brinker, supra, 53 Cal.4th
at p. 1051.) An employer’s liability is contingent on proof the employer knew or
should have known off-the-clock work was occurring, and “[n]othing before the
trial court demonstrated how this could be shown through common proof, in the
absence of evidence of a uniform policy or practice.” (Id. at pp. 1051-1052.)
“Instead, the trial court was presented with anecdotal evidence of a handful of
individual instances in which employees worked off-the-clock, with or without
knowledge or awareness by [the employers’] supervisors. On a record such as
this, where no substantial evidence points to a uniform, companywide policy,
proof of off-the-clock liability would have had to continue in an employee-by-
employee fashion, demonstrating who worked off-the-clock, how long they

                                          15
worked, and whether [the employers] knew or should have known of their work.”
(Id. at p. 1052.)5
       3. Trial court properly denied certification of the four subclasses in issue.
               a. The off-the-clock work subclass; substantial evidence supports
       trial court’s determination that common issues did not predominate.
       With respect to the off-the-clock work subclass, this case is similar to
Brinker. There, the employer’s formal employer policy disavowed off-the-clock
work, and the plaintiffs presented no evidence of “a systematic company policy to
pressure or require employees to work off-the-clock.” (Brinker, supra, at
p. 1051.)
       Here, the evidence showed CPK’s company policy expressly prohibits off-
the-clock work. Its employee handbooks stated: “No Work Time Off the
Clock . . . [¶] We realize CPK employees have a real team spirit – a willingness to
help out in a pinch. Sometimes employees volunteer to stay and work if things get
busy. Under law, we are required to account for all hours/time that you work as
‘hours worked’ even if you didn’t intend it as such. While we appreciate the offer,
we say, ‘No, thank you . . . clock-in please!’ [¶] Please do not perform any work –
even if you intend to do it voluntarily – unless you’re scheduled for the shift or
you get prior approval.” (Italics added.)
       To the extent there were deviations from CPK’s official policy prohibiting
off-the-clock work, the trial court found common questions did not predominate.


5
        In a concurrence to her own opinion, Justice Werdegar sought to provide
guidance on remand regarding the missed meal break issues. (Brinker, supra,
53 Cal.4th at p. 1052 (conc. opn. of Werdegar, J.).) The concurrence stated the
Supreme Court did not endorse the employers’ argument that the question why a
meal period was missed renders meal period claims “categorically uncertifiable.”
(Ibid.) Justice Werdegar stated that if an employer’s records show no meal period
for a given shift over five hours, a rebuttable presumption arises that the employee
was not relieved of duty and no meal period was provided. (Id. at p. 1053.
(conc. opn. of Werdegar, J.).)

                                            16
As indicated, the trial court found “only 42 of the 89 declarations claim off-the-
clock work. If off-the-clock work was widespread resulting in a company policy
or practice enough to merit class treatment, one would think that most, if not all, of
plaintiff’s small sample would have been able to report off-the-clock work. [¶]
Therefore, the court concludes that the plaintiff’s argument that is a company
policy of off-the-clock work is not supported by substantial evidence and the court
finds that the claims of off-the-clock work cannot be established by common
proof. [¶] The variance in evidence leads to the conclusion that this is really an
individualized issue based on the employee, the manager, the shift, the restaurant,
which will required hundreds, if not thousands, of mini-trials to determine if an
employee worked off the clock, and if so, how much time was or was not recorded
and whether the employee was paid for this off-the-clock work.” (Italics added.)
       Given CPK’s official policy prohibiting off-the-clock work and the
variance in evidence with respect to the off-the-clock work circumstances of each
individual employee, the trial court’s refusal to certify the off-the-clock work
subclass must be upheld.
              b. The meal period subclass; trial court properly found common
issues did not predominate.
       CPK’s meal period policy, like its policy prohibiting off-the-clock work, is
facially compliant. (Brinker, supra, 53 Cal.4th at p. 1041.) CPK’s employee
handbook specifically provides: “For California employees, CPK’s policy
authorizes and permits meal breaks as follows: [¶] Employees working five hours
or more will be provided the opportunity to take an uninterrupted meal break of
30 minutes.” Plaintiffs have conceded the facial validity of CPK’s meal period
policies.6



6
      Plaintiffs’ motion for class certification argued: “Although [CPK’s] written
meal period policies may be facially compliant, those policies are not indicative of
CPK’s actual practices. In reality, the under-staffing of CPK restaurants resulted
                                         17
       Because CPK’s official meal period policy was facially valid, the issue is
whether, notwithstanding CPK’s stated policy, there existed a systematic company
policy to deny employees the meal breaks to which they were entitled.
       CPK submitted numerous declarations which disputed plaintiffs’ claim
that employees could only take a meal break if they affirmatively asked for one.
For example, employees at the Bakersfield and Manhattan Beach stores self
manage their breaks. Employees at the downtown Los Angeles store
“are responsible for making sure they take their breaks.” A declaration from a
Los Angeles employee stated “Nobody tells me when to take my breaks.”
A declaration from a Manhattan Beach employee stated: “I am not required to
obtain permission from a manager before taking a break.” A declaration from a
Marina del Rey employee stated the same. An employee in San Luis Obispo
stated: “The time of day I take my breaks is at my discretion.”
       In this regard, the trial court stated: “Plaintiff offers anecdotal evidence of
declarations of approximately 35 of the 89 putative class members who offered
declarations with regard to failure to provide meal breaks. [¶] . . . [¶] If there was
a common practice or policy regarding missed meal breaks to merit class
treatment, presumably, it would be widespread, and then most, if not all, of
plaintiff’s sample would have been able to report some missed meal breaks.
However, there is not substantial evidence to support that proposition. [¶] Based
on the evidence submitted, it does not appear to be a companywide practice or
policy regarding disallowance of meal breaks that can be established by common
evidence. [¶] . . . [¶] The evidence suggests that in order for plaintiff to establish
that defendant violated meal break laws, plaintiff would have to present an
analysis restaurant by restaurant, shift by shift, manager by manager, perhaps




in putative class members regularly missing meal and rest periods, taking their
meal and rest periods late, or have those meal and rest breaks interrupted.”
(Italics added.)
                                          18
employee by employee.[7] This does not lend itself to class treatment. Thus,
common proof would be absent and plaintiff would have to rely on individual
evidence which would not be appropriate for class treatment.” (Italics added.)
       On this record, the trial court properly found that common questions did not
predominate with respect to the meal period subclass. We note in particular the
declarations submitted by various employees on CPK’s behalf, asserting they self-
managed their own breaks. Given the lack of uniformity among the putative class
members on this issue, the trial court properly refused to certify the meal period
subclass.
              c. The rest period subclass; on the record presented below, the trial
court properly found common issues did not predominate.
       In seeking class certification with respect to the rest period subclass,
plaintiffs’ theory below was as follows: “[T]he following common questions of
fact and law predominate: [¶] Did Defendant’s rest period practices, which only
allow employees to take rest periods if they affirmatively ask for one and receive
affirmative authorization from supervisors, lead to putative class members not
being provided rest periods? [¶] Did Defendant maintain a practice of
understaffing CPK restaurants? [¶] Did Defendant’s practice of understaffing the
CPK restaurants coupled with employees being required to attend to customers’
needs lead to putative class members not being able to take full, uninterrupted rest
periods?”
       As indicated, the trial court found common questions did not predominate
with respect to the rest period subclass, stating “the “analysis for the claimed
missed rest break issue is similar to the analysis of the meal break claims and the
off-the-clock claims. [¶] First, plaintiff has not demonstrated understaffing is
amenable to common proof. The court also finds that plaintiff has not


7
       This aspect of the trial court’s ruling disposes of plaintiffs’ late meal period
claim as well as their missed meal period claim.
                                          19
demonstrated a violation of the rest break regulation is subject to common proof.
[¶] Apparently, some percentage of class members experience violations while a
larger percentage do not. Plaintiff has not met the burden to show that there is a
common policy or practice with respect to rest breaks which can be established by
common evidence.”
       When reviewing an order denying class certification, appellate courts
“ ‘consider only the reasons cited by the trial court for the denial, and ignore other
reasons that might support denial.’ ” (Jaimez v. DAIOHS USA, Inc. (2010)
181 Cal.App.4th 1286, 1297-1298.) Nonetheless, on appeal, plaintiffs seek to
inject a new issue into the case. Plaintiffs now contend CPK’s rest period policy is
facially invalid in the wake of Brinker. As noted, Brinker held the applicable
wage order, Wage Order No. 5, requires an employer to provide an employee with
a 10-minute rest break for shifts lasting from three and one-half hours to six hours
in length, and 20 minutes of rest for shifts lasting more than 6 hours to 10 hours.
(Brinker, supra, 53 Cal.4th at p. 1029.) Thus, after working six hours, an
employee is entitled to a second 10-minute break. (Ibid.) Here, CPK’s policy
was slightly different. Its handbook stated: “Employees are also entitled to a paid,
10-minute rest break for every 3.5 hours worked.” CPK’s policy meant that an
employee would be entitled to a second 10-minute break for a seven-hours shift,
rather than after working a shift longer than 6 hours. 8
       However, unlike in Brinker, plaintiffs herein did not litigate how much rest
time must be authorized. Their arguments, set forth above, did not challenge
CPK’s rest period policy as being contrary to Wage Order No. 5. Further,
plaintiffs did not develop a record below to support their new theory that a
subclass should be certified for CPK employees who worked a shift of at least six


8
       CPK’s policy of a 10-minute break for every 3.5 hours worked would
provide an employee with two 10-minute breaks during a seven hour shift. Thus,
the controversy here with respect to rest periods pertains only to shifts lasting
longer than six hours but less than seven hours.
                                          20
hours but less than seven hours, and who were denied a second rest period.
Therefore, the issue is not properly before this court.
       In sum, on the record presented, the trial court properly refused to certify
the proposed rest period subclass.
              d. The wage statement subclass.
       As indicated, the trial court found the wage statement claim was
“a derivative claim of the off-the-clock meal and rest claims because the claim
for insufficient wage statements is based upon the claim that the wage statement
was deficient because of violations of the off-the-clock work law and the meal
break law and the rest break law. [¶] Since the court finds that the claims with
regard to the alleged off-the-clock work, the meal break and the rest periods are
not amenable to class treatment because these claimed violations depend on
individual proof, the court concludes that the derivative wage statement class
allegations are also based upon individualized evidence and also are not subject to
common policy or proof.”
       On appeal, plaintiffs “have no quarrel with the reasoning that the wage
statement claim is derivative of the other claims.” Our decision upholding the
denial of certification with respect to the off-the-clock work, meal period and rest
period subclasses is dispositive of the wage statement subclass.
       4. Remaining issues not reached.
       Substantial evidence supports the trial court’s determination that common
issues did not predominate with respect to the four subclasses in issue. Therefore,
it is unnecessary any remaining arguments.




                                          21
                                    DISPOSITION
       The order denying class certification is affirmed. The parties shall bear
their respective costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 KLEIN, P. J.


We concur:



              KITCHING, J.




              ALDRICH, J.




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