Filed 1/2/18; pub. order 1/23/18 (see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIRST APPELLATE DISTRICT

                                               DIVISION FOUR


MICHAEL LAMPE et al.,
         Plaintiffs and Appellants,
                                                           A146588
v.
QUEEN OF THE VALLEY MEDICAL                                (Napa County
CENTER,                                                    Super. Ct. No. 26-61568)
         Defendant and Respondent.


                                                     I.
                                             INTRODUCTION
         Appellants Michael Lampe and Karen McNair appeal the trial court’s order
denying class certification of their wage and hour claims against Queen of the Valley
Medical Center (QVMC). The trial court concluded that individualized issues
predominated and the claims could not be proven efficiently as a class. We conclude
substantial evidence supports the trial court’s findings and it did not abuse its discretion
in denying class certification. We affirm.
                                                     II.
                      FACTUAL AND PROCEDURAL BACKGROUND
         QVMC is a full-service hospital with 94 departments. Appellants Lampe and
McNair are nurses employed at QVMC. McNair previously worked 8-hour shifts as an
operating room nurse, and in 2011 she became a relief charge nurse. As a relief charge




                                                     1
nurse, she determines when to provide meal breaks for the nurses she is supervising.
Lampe works 12-hour shifts in the mother-child services department.
       A.       Appellants’ Fourth Amended Class Action Complaint and Motion to
                Certify Class
       Beginning in 2011, appellants filed multiple versions of their complaint in this
action in three different counties. The current complaint is the fourth amended class
action complaint filed in Napa County, which alleges seven causes of action:
(1) violation of Business and Professions Code section 17200 et seq.; (2) violation of
Labor Code sections 206, 218, 226, 510, 1194, and 1198; (3) failure to pay meal break
penalties under Labor Code sections 226.7 and 512, et seq.; (4) inaccurate wage
statements under Labor Code section 226; (5) violation of the Private Attorney General
Act (PAGA) under Labor Code sections 2698–2699; (6) unpaid wages due to illegal
rounding under Labor Code sections 218, 510, 1194, 1197 and 1198 and; (7) failure to
provide meal breaks under Labor Code sections 226.7 and 512.
       Appellants filed a motion to certify an “overtime class,” a “meal break class,” and
a “wage statement” class. The overtime class consisted of two subclasses: (1) employees
who earned overtime bonuses where QVMC failed to properly calculate their regular rate
of pay, and (2) alternative work schedule (AWS) employees who were asked to leave
work between the eighth and twelfth hour of their shift who were not paid overtime
wages.1 The second class was the meal break class with a subclass of all employees who
signed meal break waivers. The third class was derivative of the other classes and
included any QVMC employee who received a pay stub.
       Appellants alleged QVMC has a “company-wide policy of instituting and
implementing unlawful wage-and-hour policies.” They allege QVMC does not properly
compensate AWS employees who work short shifts as required by California Code of
Regulations, title 8, section 11050, subdivision 3(B)(2) (Wage Order No. 5-01(B)(2)).
They contend that QVMC has no written policy to inform employees that they are
entitled to overtime if they are flexed off their shift. Appellants argue QVMC failed to

       1
           This is referred to as a “short-shift premium.”

                                                2
properly calculate employees’ regular rate of pay. Appellants also assert that QVMC
required employees to waive one of their two meal periods if they worked a 12-hour shift.
       In support of their motion, appellants submitted deposition transcripts from the
prior named plaintiffs, Concepcion Vinas and Editha Asuncion, along with deposition
excerpts from the director of human resources, a payroll coordinator, three QVMC nurses
with roles as supervisors or managers, and two experts. In his declaration, Lampe stated
he was not aware he was entitled to a short-shift premium. He also stated he is not
provided a second meal period when he works over a 12-hour shift.
       QVMC filed an opposition to the class certification motion, arguing that appellants
had failed to submit substantial evidence to support their theories, and pointing out that
appellants only submitted their own declarations and offered no testimony from any
proposed class members. QVMC argued that appellants raised AWS claims even though
all AWS allegations were stricken from their complaint and they were sanctioned for
repeatedly raising the claims.
       Included with its opposition, QVMC submitted evidence to contradict Lampe’s
declaration. Lampe signed an AWS agreement which stated QVMC provides short-shift
premiums if he worked more than 8 hours but less than a full 12-hour shift. The short-
shift policy is also contained in the QVMC policy manual. Putative class members
provided declarations that they were aware of the short-shift policy, including former
named plaintiffs, Vinas and Asuncion. Fourteen putative class members declared they
have never been required to leave work after eight hours on an AWS shift, and employees
would often volunteer to leave early where a short-shift premium is not required.
Twenty-five QVMC employees testified they were aware they were entitled to a meal
break if they worked more than five hours and they were provided with their meal breaks.
They were aware they were entitled to second a meal break if they worked more than
10 hours and they were offered that meal break. Respondent identified the various
different and unique ways each department scheduled meal breaks.
       QVMC produced evidence that it has an AWS and written short-shift policy that is
included with each employee’s AWS agreement. The QVMC Human Resources Policy


                                             3
Manual (QVMC HR Manual) policy No. 335.1 states: “Employees will receive a short-
shift payment if provided more than eight (8) hours, but less than twelve (12) hours of
work on a regularly scheduled workday. QVMC will pay one and one-half times their
regular rate for all hours worked in excess of eight hours on that regularly scheduled
day.” Lampe also signed an AWS agreement for 12-hour shifts.
       QVMC explained it does not have a separate pay code for short-shift premiums; it
shows up as overtime in the system, or on the pay stub. To determine if an employee was
being paid a short-shift premium requires a review of the individual edit sheets, if
available.
       QVMC’s meal break policy is to provide 30 minutes for each day of work over
5 hours, and a second meal break of at least 30 minutes for each day of work over
10 hours. The policy is the first meal break should be taken by the end of the fifth hour
of work. An employee that works more than 10, but less than 12 hours in a workday,
may waive one of his or her two meal periods. QVMC does not maintain centralized
electronic records of employees who have signed or revoked meal period waivers. This
information requires a person-by-person review of employee files.
       For an employee to receive a meal period premium for waiving a meal period, the
employee must complete a form notifying QVMC. QVMC regularly pays meal period
premiums when requested.
       Lampe voluntarily signed a meal period waiver. In the waiver, he requested to
take his first meal break at the end of his sixth hour or later, and to waive the second meal
break. McNair typically works an 8-hour shift, so she did not sign a meal break waiver.
       McNair testified that when she is the relief charge nurse, if a nurse refuses to take
a break, she instructs them to put “no break” on their timesheet so they can be paid a
premium for the missed break.
       After conducting a hearing, the trial court issued an order denying appellants’
motion for class certification. The trial court cited Duran v. U.S. Bank National Assn.
(2014) 59 Cal.4th 1, 28 (Duran) for the proposition that a class action may be maintained
if there is “ ‘an ascertainable class and a well-defined community of interest among the


                                              4
class members.’ [Citations.] As part of the community of interest requirement, the party
seeking certification must show that issues of law or fact common to the class
predominate.” (Ibid.) The ultimate issue for predominance is whether the common
issues are so numerous and substantial that maintenance of a class action is advantageous
to the judicial process and to the litigants. (Ibid.)
       The trial court noted appellants sought to certify three classes and three subclasses
and analyzed each in turn.
       Class 1, the overtime class consisted of nonexempt 12-hour shift employees (from
November 2007 to certification) and nonexempt non-12-hour shift employees (from
February 2010 to certification). This could include employees from 94 departments who
work full-time, part-time, per diem, and work every type of shift (day, night, on-call).
The potential class included up to 358 different positions, including nurses, therapists,
secretaries, clerks, gardeners, fitness instructors, social workers, transcriptionists, billers,
and cooks.
       Within the first overtime subclass were employees who earned nondiscretionary
bonuses. Within the second subclass were employees who worked AWS who were not
paid overtime when they were required to leave work between the eighth and twelfth
hour of their shift.
       Although the first and second subclass are not alleged in the operative complaint,
the court nevertheless addressed the subclasses on the merits. The court found for the
first subclass: “There is no evidence in the record that clearly shows what items were or
were not included in the regular rate calculation, or any details as to why any of the items
should or should not have been included.” Appellants’ expert does not identify what
items were wrongly included or excluded. Also, for the first subclass, appellants “failed
to articulate what group issues predominate. The vague assertion that the regular rate
was miscalculated without any specific detail as to what pay codes were or were not
included is insufficient.”
       For the second subclass, appellants contend employees were not paid when they
flexed off their shift between the eighth and twelfth hour of work. QVMC stated hospital


                                               5
policy was to pay the employee using the regular overtime code. The hospital does not
record whether a short-shift premium is paid because it is recorded as overtime. Because
this claim required individualized assessment of each employee, the court concluded this
claim could not be proven efficiently as a class.
       Class 2, the meal break class, consisted of 12-hour shift employees. This class
included employees in 94 departments working in various types of positions similar to
Class 1. The third subclass consisted of employees who signed meal waivers for the
second meal break and worked over a 12-hour shift. The third subclass was not identified
in appellants’ complaint.
       The trial court found that appellants had not supported their claims regarding meal
periods with anything other than their own testimony. “Numerous employees have
declared that they have always been able to take their full 30-minute meal periods, or that
if they missed a meal period, they may request and have received a meal period
premium.” Appellant McNair had not signed a meal period waiver because she works an
8-hour shift, and appellant Lampe signed a waiver to voluntarily waive his meal break.
The trial court concluded neither appellant is typical of the class they seek to certify.
       The evidence presented disclosed a great variety in how meal periods are
scheduled in different departments. Appellant McNair was responsible for scheduling
meal breaks for the nurses in her unit which created a conflict between proposed
members of the class. The trial court concluded that with the meal period claims, every
member of the class would be required to litigate numerous and substantial questions
regarding his or her right to recover, which depended on the department the employee
worked in, the shift she or he had, whether a meal waiver had been signed, and the
circumstances leading up to any meal waiver. “The difficulty in managing the individual
issues renders class certification inappropriate as to the Meal Break Class.”
       Class 3, the wage statement class, consisted of employees who were provided a
pay stub. “As class certification is not appropriate for the primary Overtime Class and
Meal Break Class, class certification as to the Wage Statement Class is also
inappropriate” because it is derivative of the other wage claims.


                                              6
                                               III.
                                         DISCUSSION
       A.      Class Certification Standards
       This state’s public policy supports the use of class actions to enforce California’s
minimum wage and overtime laws for the benefit of workers. (See Sav-On Drug Stores,
Inc. v. Superior Court (2004) 34 Cal.4th 319, 340 (Sav-On).) However, “because group
action . . . has the potential to create injustice, trial courts are required to ‘ “carefully
weigh respective benefits and burdens and to allow maintenance of the class action only
where substantial benefits accrue both to litigants and the courts.” ’ ” (Linder v. Thrifty
Oil Co. (2000) 23 Cal.4th 429, 435.)
       Under California law, the party seeking class certification must establish three
things: “[(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 Restaurant Corp.
v. Superior Court (2012) 53 Cal.4th 1004, 1021 (Brinker).) “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.” (Sav-On, supra, 34 Cal.4th at
p. 326.)
       “ ‘[E]ach member must not be required to individually litigate numerous and
substantial questions to determine his [or her] right to recover following the class
judgment . . . .’ ” (Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906,
913.) “ ‘[T]he issues which may be jointly tried, when compared with those requiring
separate adjudication, must be sufficiently numerous and substantial to make the class
action advantageous to the judicial process and to the litigants.’ ” (Id. at pp. 913–914.)
       The trial court should not grant class certification if individualized inquiries into
job duties or other issues would predominate. This is true even if there is evidence of
common job descriptions, common classification criteria, and common policies and
procedures. (Mora v. Big Lots Stores, Inc. (2011) 194 Cal.App.4th 496, 507–509.)


                                                7
       The trial court needs “to carefully weigh the respective benefits and burdens of a
class action and to permit its maintenance only where substantial benefits will be accrued
by both litigants and the courts alike.” (Reyes v. Board of Supervisors (1987)
196 Cal.App.3d 1263, 1275.) A trial court’s ruling on a motion for class certification is
reviewed for an abuse of discretion. (Sav-On, supra, 34 Cal.4th at p. 326.) Trial courts
“ ‘are ideally situated to evaluate the efficiencies and practicalities of permitting group
action’ ” and therefore are “ ‘afforded great discretion’ ” in evaluating the relevant factors
and in ruling on a class certification motion. (Ibid.)
       B.      Overtime Class
       Appellants sought to certify two overtime subclasses: (1) employees who did not
have their regular rate of pay correctly calculated, and (2) AWS employees who were not
paid overtime when they were required to leave work between the eighth and twelfth
hour of their shift.
       Initially, we note the first and second subclasses are not identified in the operative
complaint. The fourth amended complaint contains no AWS allegations. The trial court
ordered the AWS allegations in the second amended complaint stricken. When
appellants’ counsel again included AWS allegations in the third amended complaint, the
court sanctioned counsel $10,000 for reasserting the stricken claims. The sanctions were
the subject of an appeal to this court that was affirmed in an unpublished decision, Vinas
v. Queen of the Valley Medical Center (Oct. 20, 2016, A143541).
       “A court must examine the allegations of the complaint” to determine “whether
the legal and factual issues they present are such that their resolution in a single class
proceeding would be both desirable and feasible.” (Brinker, supra, 53 Cal.4th at
pp. 1021–1022.) QVMC argues that the fourth amended complaint does not contain any
allegations with respect to AWS employees, or the failure to pay short-shift premiums. It
points out that simply because short-shift premiums are given the same pay code as
overtime does not mean they are the same as overtime and the substance of the short-shift
and regular rate claims are not the same.



                                              8
       The lack of connection between the complaint and the classes appellants seek to
certify provides a basis for denial of the certification motion. (See Jones v. Farmers Ins.
Exchange (2013) 221 Cal.App.4th 986, 999 [court can deny class certification or strike
certification motion where the plaintiffs seek certification that is beyond the scope of the
pleadings].) The trial court recognized this deficiency but addressed the subclasses on
the merits. We will, therefore, also address the claims on the merits.
               1.    Regular Rate Subclass
       Appellants argue QVMC failed to include all required amounts in the regular rate
of pay before calculating overtime.
       “Under California law, an employee must be paid overtime compensation for work
performed in excess of eight hours in one day, calculated at one and one-half times the
regular rate of pay. (Lab. Code, § 510, subd. (a).)” (Huntington Memorial Hospital
v. Superior Court (2005) 131 Cal.App.4th 893, 899.) An employee’s overtime
compensation is based upon his or her “ ‘regular rate’ ” of pay. (Id. at p. 902.)
       To support their allegations, appellants submitted an expert declaration from
Dr. Richard Drogin, Ph.D., a statistician. He evaluated Lampe’s pay records over
195 pay periods, and McNair’s over 165 pay periods. He determined that the regular rate
was not properly calculated for 130 out of 360 pay periods resulting in underpayment of
$10,767 to Lampe, and $7,156 to McNair. Although Dr. Drogin conducted an analysis of
75 employees regarding meal breaks, he provided no analysis on the regular rate payment
for any employees except Lampe and McNair.
       QVMC argues appellants failed to adequately identify the legal claim they seek to
pursue on behalf of this class. Appellants only list the various pay categories and claim
some of the bonus or incentive categories were not included in the regular rate
calculation.
       For the regular rate subclass, the trial court found there was “no evidence in the
record that clearly shows what items were or were not included in the regular rate
calculation, or any details as to why any of the items should or should not be included.”
Dr. Drogin did not identify what items were wrongly included or excluded. This expert


                                              9
listed bonus categories, but does not link them to appellants or other putative class
members. The trial court found that appellants had not shown if they or other members
of the class received or did not receive any of the listed pay codes.
       Additionally, the trial court found appellants “failed to articulate what group issues
predominate. The vague assertion that the regular rate was miscalculated without any
specific detail as to what pay codes were or were not included is insufficient.”
Appellants simply provided pages of what appear to be QVMC pay code sheets effective
in 2007 and 2009. Respondent argues four of the bonus categories appellants identified
in their certification motion are listed on these pay code sheets as included in the regular
rate calculation.
       Based on appellants’ generalized allegations, the trial court could not properly
determine if individual or common issues predominate. (See Brinker, supra, 53 Cal.4th
at p. 1025.) Without identifying which elements of compensation were at issue, the court
could not determine if there was an ascertainable and numerous class with a defined
community of interest. (Id. at p. 1021.)2
       We agree and conclude the trial court properly denied certification of the regular
rate subclass.




       2
         Appellants rely on a case seeking conditional certification under the Fair Labor
Standards Act (FLSA) from the Western District of Missouri, Speer v. Cerner
Corporation (W.D. Mo. Mar. 30, 2016, No. 14-0204-CV-W-FJG) 2016 WL 1267809, to
argue they do not have to demonstrate if certain categories of pay are excluded from the
regular rate, this can be determined at the summary judgment stage. The standard for
conditional certification under the FLSA is evidence of a “common policy or plan” (Id.,
at p. *7) which is different than the community of interest standard for class certification
under California law.


                                             10
              2.     Short-Shift Premium Subclass
       Appellants argue QVMC did not provide overtime pay to employees that it “flexed
off” between the eighth and twelfth hour of their AWS shifts. They argue employees
were not paid if they volunteered to leave early, and employees were not informed that if
they did not volunteer they would be paid a short-shift premium.
       Under Wage Order No. 5-2001, a health care industry employer and an employee
may adopt an alternate workweek schedule allowing the employee to work days
exceeding 10 hours, but less than 12 hours. (Cal. Code Regs., tit. 8, § 11050.) If the
employer requests the employee work less than their regularly scheduled shift, the
employer must pay a rate of one and one-half times the employee’s regular rate of pay for
all hours worked in excess of eight hours. (Id., subd. (3)(B)(2).)
       QVMC HR Manual policy No. 335.1 states: “Employees will receive a short-shift
payment if provided more than eight (8) hours, but less than twelve (12) hours of work on
a regularly scheduled workday. QVMC will pay one and one-half times their regular rate
for all hours worked in excess of eight hours on that regularly scheduled day.” The short-
shift premium is not paid “if the full shift is not worked due to the employee’s actions.”
As an example, the policy lists an employee’s request to go home early. Lampe’s AWS
agreement states: “Employees will receive a short-shift payment if provided more than
eight (8) hours, but less than twelve (12) hours of work on a regularly scheduled
workday. Queen of the Valley Hospital will pay one and one-half times their regular rate
for all hours worked in excess of eight hours on that regularly scheduled day.”
       Appellants submitted an expert declaration from Sean Berger, a consultant on data
collection and analysis. Berger analyzed data provided to him by appellants’ counsel to
determine how often Lampe and other employees worked between 8.25 and 11.75 hours.
He analyzed 981 workdays between 2007 to 2014 for Lampe and found he worked
between 8.25 and 11.75 hours on 20 days (2.04 percent of the time). He evaluated a
sample class of 75 employees and found 28.03 percent of the time they worked between
8.25 and 11.75 hours.



                                            11
       As noted earlier, QVMC has a policy to pay employees a short-shift premium if
they worked more than eight hours, but less than twelve hours. Appellants presented no
evidence QVMC discouraged employees from seeking a short-shift premium. QVMC,
however, presented evidence that the former named plaintiffs, Vinas and Asuncion,
provided testimony that they were aware of the short-shift policy and were paid short-
shift premiums. Respondent also submitted the written policies provided to employees.
QVMC’s payroll system did not have pay code for short-shift premiums but used the
overtime pay code.
       In support of their claims, appellants rely on an unpublished federal district court
decision, Escano v. Kindred Healthcare Operating Co., Inc. (C.D. Cal. Mar. 5, 2013,
No. CV 09-04778 DDP (CTX)) 2013 WL 816146 (Escano). Escano is not binding on
this court and is readily distinguishable. The Escano plaintiffs brought wage and hour
claims against hospitals owned by Kindred Healthcare Operating Group, Inc. (Kindred).
(Id. at p. *1.) The plaintiffs raised the same AWS claim raised here: that employees who
left work between the eighth and twelfth hour of their shift were not paid their short-shift
premium. (Id. at p. *2.) The plaintiffs presented evidence that Kindred had a policy of
not paying employees short-shift premiums and none of the putative class members were
aware of the law regarding short-shift premiums. (Id. at p. *3.) The chief financial
officer for Kindred was not aware of the law. (Ibid.) Kindred employees’ AWS
agreements made no mention of the short-shift premium. (Id. at p. *4.) Kindred had no
code in their payroll system for short-shift premiums. (Ibid.)
       Based on Kindred’s policy of requiring employees to leave early when patient
census is low and the fact employees were not aware they were entitled to a short-shift
premium, the plaintiffs were allowed to use classwide proof to show short-shift premiums
were not paid. (Escano, supra, 2013 WL 816146 at p. *5.)
       This case has two notable differences: first, QVMC has a written policy requiring
the payment of short-shift premiums to AWS employees and; second, this requirement
was included in each AWS agreement. The employees here, including Lampe, were
aware of the short-shift premium and the prior named plaintiffs, Vinas and Ascusion, had


                                             12
utilized it. In Escano, supra, 2013 WL 816146, the lack of a policy and the fact the
information was not communicated to employees allowed for class issues to predominate;
the same is not true here. In order to evaluate whether an individual employee was
denied a short-shift premium is an individualized determination because it is dependent
upon the employee’s reason for leaving early from a particular shift. A short-shift
premium is not paid unless the employer ends the shift early; if an employee leaves
voluntarily, the premium is not owed.
       Appellants also rely on language in Escano that an employee who is unaware of
the short-shift policy could not elect to leave voluntarily and forgo their premium
payment. (Escano, supra, 2013 WL 816146.) But, in Escano, much of the issue rested
on involuntariness; here the employees were aware of the policy and many chose to leave
early (without payment) when they had the opportunity.3
       Appellants failed to present substantial evidence that employees, as a class, were
required to leave early by QVMC. An individualized assessment is necessary to
determine for each shift whether an employee left early because QVMC requested it or
because the employee volunteered. This question cannot be determined from pay records
or from expert data analysis. Pay records utilized the same code for overtime as short-
shift premiums and time records only show when an employee left early, but do not
provide the reason. Appellants’ expert was only able to determine that 28.03 percent of
the time putative class members worked a short shift, but this does not eliminate the need
for a person by person analysis to determine the reason. (See Duran, supra, 59 Cal.4th at
p. 31 [“There must be some glue that binds class members together apart from statistical
evidence.”].)


       3
         Nurse Sherry Rubio declared that she had never been required to leave her 12-
hour shift early and when she left early it was voluntarily, at her own request. The shift
lead for the intensive care unit department, who had worked at QVMC since 1979,
similarly testified she had never been asked to leave early and when she did leave early it
was because she had volunteered. A senior X-ray technician also declared that she had
never been asked to leave early and always did so voluntarily when she requested
permission to leave early.

                                            13
         Finally, appellants have not provided any evidence that QVMC dissuaded
employees from requesting short-shift premiums. Instead, employee declarations showed
they were aware of the policy and utilized it.
         The trial court did not abuse its discretion in finding the claim required
individualized assessment and could not be proven efficiently as a class.
         C.     Meal Break Class
         Appellants raise two arguments on appeal regarding meal breaks: (1) QVMC
failed to provide a second meal break when employees worked 12 hours or more; and
(2) QVMC failed to provide a meal break within the first five hours of an employee’s
shift.
         An employer generally must provide a 30-minute meal period to all nonexempt
employees who work more than five hours, and a second 30-minute meal period to
employees who work more than 10 hours. (Lab. Code, § 512, subd. (a); Cal. Code Regs.,
tit. 8, § 11050, subd. 11.) “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.” (Brinker, supra, 53 Cal.4th at p. 1040.)
                1.     Employee Meal Break Waivers
         Appellants argue QVMC failed to provide a second meal break to employees who
worked a 12-hour shift or longer. Appellants’ theory before the trial court was that
QVMC forced employees to waive their second meal break as a condition of
employment.
         Appellants’ evidence consisted of statistical analysis: Berger concluded the
sample class worked more than 12.25 hours 52.7 percent of the time. The data showed
there were no meal punches for a second meal period when they worked longer than
12.25 hours. Berger’s analysis showed that Lampe worked more than 12.5 hours on
65 days (6.6 percent of the time) and he did not punch out for second meal on those days.




                                               14
       QVMC presented declarations from employees who stated they took a second
meal break when they worked over 12 hours.4 Appellants did not submit any employee
declarations about why they failed to take a second meal break. QVMC submitted
deposition transcript excerpts from putative class members who stated that they were
offered the second meal period but waived it so they could go home sooner.
       Wage Order No. 5-2001, subdivision 11(D) allows for voluntary written
agreements to waive meal periods. (Cal. Code Regs., tit. 8, § 11050, subd. 11(D).)
Respondent provided evidence that Lampe voluntarily signed a meal break waiver and
other nurses also provided testimony of voluntarily waiving their meal breaks.
Respondent presented declarations from 21 employees that they signed the waivers
voluntarily.
       Additionally, QVMC’s evidence indicated the issue of employee waivers could
not be addressed on a classwide basis. Each employee’s written waiver form was
contained in the employee’s individual personnel file. In addition, the declarations and
deposition transcript excerpts demonstrated the employees’ ability to take meal breaks
varied from department to department. The question of whether a missed meal break was
due to the employer’s failure to allow it or from the employee’s voluntary choice not to
take it requires an individualized inquiry. The evidence demonstrated QVMC’s written
policy provided a second meal period but allowed employees to waive it. The expert’s
analysis does not change the nature of the claims.
       Appellants’ argument seems to be that employees believed their waiver was
required. An employer’s dissuasion of employees from taking meal or rest breaks may
result in the employer’s liability, even if the employer has a written policy that complies


       4
         A dietary aide declared if her shift lasts longer than 12 hours, she takes a 30-
minute meal period regardless of whether or not she signed a meal waiver and QVMC
has always provided her a second meal break when she worked more than 12 hours. The
shift lead for the hospital’s intensive care unit department and p.m. lead registered nurse
for the surgical services department similarly declared that if they work longer than
12 hours, they take a second 30-minute meal break and they have always been provided
with the second break.

                                             15
with the law. (See Brinker, supra, 53 Cal.4th at p. 1040.) By extension, appellants
argue, an employer’s dissuasion of employees from applying for premium pay, or its
failure to advise employees of their entitlement to premium pay, may result in employer
liability. Appellants, however, have not presented evidence that employees were
dissuaded from applying for compensation for missed meal breaks.
       Division Two of this court held in Sotelo v. MediaNews Group, Inc. (2012)
207 Cal.App.4th 639, 654 (Sotelo): “A class . . . may establish liability by proving a
uniform policy or practice by the employer that has the effect on the group of making it
likely that group members will work overtime hours without overtime pay, or to miss
rest/meal breaks.” In examining whether newspaper employees shared sufficient
common evidence to show they were denied meal and rest breaks, the trial court found
the evidence indicated “ ‘a wide variation among carriers in the number of hours they
worked each day . . . and that their ability to take breaks turned on factors that varied
substantially across the proposed class . . . .’ ” (Id. at p. 653.)
       The plaintiffs in Sotelo relied on Jaimez v. Daiohs USA, Inc. (2010)
181 Cal.App.4th 1286 (Jaimez), where the court found that employees had been
purposefully denied overtime and meal and rest breaks. Jaimez concluded the claims
were amenable to class treatment due to evidence that the employer maintained “uniform
policy and practice” affecting all putative class members. (Ibid.) The Sotelo court
distinguished Jaimez: “ In Jaimez, there was an allegation that defendant ‘had a policy of
failing to permit or authorize [route sales representatives] to take rest breaks . . . .’
(Jaimez, supra, 181 Cal.App.4th at p. 1304.) Moreover, Jaimez presented evidence of a
common factual issue—that ‘[t]he delivery schedules made it extremely difficult for
[route sales representatives] to timely complete the deliveries and take all required rest
breaks.’ (Ibid.) As with the overtime claims, appellants failed to allege a uniform policy
on the part of respondents to deny putative members the ability to take rest breaks.”
(Sotelo, supra, 207 Cal.App.4th at pp. 654–655.)
       Sotelo concluded the plaintiffs had not alleged that the newspaper had a uniform
practices or policies that denied employees overtime or meal breaks. (Sotelo, supra,


                                               16
207 Cal.App.4th at p. 655.) And the plaintiffs failed to show that such a policy could be
established by the evidence. (Ibid.)
       Similarly, here, appellants are arguing that QVMC had a policy requiring
employees to waive meal breaks, but they have no evidence to support this contention.
If QVMC, in fact, had such a policy that applied to all employees, appellants could
demonstrate the claim was proper for class certification under Jaimez, supra,
181 Cal.App.4th 1286. Here, however, QVMC’s policy provided for meal breaks as
required by law, but allowed employees to waive the breaks. In Sotelo, the court found
no common policy applied to all employees that violated state law. (Sotelo, supra,
207 Cal.App.4th at p. 655.) “This is very different from the circumstances here where
the plaintiffs alleged, and produced specific evidence, showing the existence of a
common practice (the failure to authorize and provide for meal and rest breaks) that
violated state law.” (Bradley v. Networkers Internat., LLC (2012) 211 Cal.App.4th 1129,
1153.)5
       The trial court found appellants had not supported their claims regarding meal
periods with anything other than their own testimony. “Numerous employees have


       5
         At oral argument appellants relied on a recent decision, also cited in their reply
brief: Lubin v. The Wackenhut Corp. (2016) 5 Cal.App.5th 926 (Lubin). Lubin involved
class certification of off-duty meal breaks and rest breaks for security officers. The trial
court originally granted class certification but then decertified the class after the Supreme
Court’s decision in WalMart Stores, Inc. v. Dukes (2011) 564 U.S. 388. As relevant here,
the Lubin court concluded the plaintiffs had demonstrated The Wackenhut Corp. had a
common policy of not providing meal or rest breaks. (Lubin, at p. 938.) The Wackenhut
Corp. also had a “uniform practice” of allowing clients to decide whether to provide on-
duty meal breaks. (Id. at p. 943.) The court found the trial court erred by not focusing on
the plaintiffs’ theory of liability in their complaint and instead focused on whether
individualized inquiries were required to determine if, in practice, meal breaks were
provided. (Id. at p. 941.)
       The trial court here properly focused on the theories set forth in appellants’
complaint. Appellants could not demonstrate QVMC had uniform policies that denied
employees meal or rest breaks, or that QVMC “forced” appellants to waive their meal
breaks as a condition of employment. Unlike Lubin, appellants cannot point to common
policies or uniform practices to support their allegations.

                                             17
declared that they have always been able to take their full 30-minute meal periods, or that
if they missed a meal period, they may request and have received a meal period
premium.” Appellant McNair had not signed a meal period waiver because she works an
8-hour shift and appellant Lampe signed a waiver to voluntarily waive his meal break.
Neither plaintiff is typical of the class they seek to certify. There is no community of
interest when class representatives’ claims are not typical of the class. (Sav-On, supra,
34 Cal.4th at p. 326.)
       The trial court’s findings that individual questions of proof predominated is
supported by the fact that the reasons any particular employee might not take a meal
period are more likely to predominate if the employer need only offer meal periods, but
need not ensure employees take their meals. (See Brinker, supra, 53 Cal.4th at pp. 1040–
1041 [California requires only that an employer make a meal period available, not that
employees must eat their meals].)
       Additionally, the court noted McNair testified she was responsible for scheduling
meal breaks for nurses in her unit which caused a conflict of interest with the members of
the class. A “finding of adequate representation will not be appropriate if the proposed
class representative’s interests are antagonistic to the remainder of the class.” (J.P.
Morgan & Co., Inc. v. Superior Court (2003) 113 Cal.App.4th 195, 212.) “ ‘ “It is
axiomatic that a putative representative cannot adequately protect the class if his interests
are antagonistic to or in conflict with the objectives of those he purports to represent.” ’ ”
(Seastrom v. Neways, Inc. (2007) 149 Cal.App.4th 1496, 1502.)
              2.     Meal Breaks After Five Hours
       Dr. Drogin analyzed time records for 75 employees who worked 12-hour shifts
from 2007 to 2014 and concluded only 11.1 percent had meal breaks of 30 minutes
within the first 5 hours of their shifts. Appellants did not submit any declarations as to
why employees failed to take a meal break after five hours. They also failed to submit
any declarations from employees who claimed they were denied meal breaks or not
provided them, if they desired them, after the fifth hour of work. The declaration they
did submit from Lampe stated that he signed a meal break waiver that provided he was


                                              18
entitled to two 30-minute meal breaks. It states: “QVMC has offered to schedule my
first meal period to begin by the end of my fifth hour of work, however, this would cause
the second portion of my workday to be longer than the first portion; [¶] [ ] I hereby
request that I be allowed, for my own convenience, to voluntarily waive one of my two
(2) meal periods. I further request that I be allowed to begin the other meal period at or
near the middle of my 12-hour shift, up to but not later than the end of my tenth hour of
work.” The waiver stated Lampe could revoke the waiver at any time by providing one
day’s advance notice in writing.
       Numerous other QVMC employees provided declarations that they were provided
a break within five hours of starting their shift. A missed meal break does not constitute
a violation if the employee waived the meal break, or otherwise voluntarily shortened or
postponed it. (See Brinker, supra, 53 Cal.4th at pp. 1040–1041.)
       Appellants’ expert analysis showed that only 11.1 percent of employees took meal
breaks within the first five hours of their shift. Appellants argue this is evidence that
QVMC uniformly failed to provide timely meal breaks. But this could easily be
explained by waivers like Lampe’s that requested the meal break mid-shift or later.
“ ‘Critically, if the parties’ evidence is conflicting on the issue of whether common or
individual questions predominate (as it often is . . . ), the trial court is permitted to credit
one party’s evidence over the other’s in determining whether the requirements for class
certification have been met . . . .’ ” (Mies v. Sephora U.S.A., Inc. (2015) 234 Cal.App.4th
967, 981.)
       To determine why each employee did not take their first meal break after five
hours would require an individualized determination and review of individual employee
files and pay stubs. (See Koval v. Pacific Bell Telephone Co. (2014) 232 Cal.App.4th
1050, 1062–1063 [no common method to prove classwide liability because of the
variation on how policies were communicated to each individual plaintiff].)
       The trial court correctly concluded that common issues did not predominate and
given the individualized inquiries required and the potential conflict between the named
plaintiffs and the class, there were not substantial benefits from proceeding as a class.


                                               19
       D.     Wage Statement Class
       In their certification motion, appellants seek to certify a class of every nonexempt
hourly employee who received a pay stub since November 2010. They describe this class
as “purely derivative . . . of the wage claims.” The trial court found that because class
certification was not appropriate for the overtime or meal break classes, there was no
basis to certify the wage statement class which was derivative of the other wage claims.
We agree. (See White v. Starbucks Corp. (N.D. Cal. 2007) 497 F.Supp.2d 1080, 1089–
1090 [summary judgment of the plaintiff’s claims for inaccurate wage statements was
proper on the ground that these claims are derivative of the plaintiff’s overtime and break
claims].)
                                            IV.
                                      DISPOSITION
       The judgment is affirmed. Respondent shall recover its costs on appeal.




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                                                _________________________
                                                RUVOLO, P. J.


We concur:


_________________________
KENNEDY, J.*


_________________________
RIVERA, J.




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


                                           21
                              CALIFORNIA COURT OF APPEAL
                            FIRST APPELLATE DISTRICT
                                    DIVISION 4



MICHAEL LAMPE et al.,
Plaintiffs and Appellants,
v.
QUEEN OF THE VALLEY MEDICAL CENTER,
Defendant and Respondent.

A146588
Napa County No. 26-61568

BY THE COURT:

       The written opinion which was filed on January 2, 2018 has now been certified for
publication pursuant to rule 8.1105(b) of the California Rules of Court, and it is ordered
published in the official reports.



Date: __1/23/18__                                        _________Ruvolo, P.J._ ______




                                            1
Trial Court:                           Napa County Superior Court

Trial Judge:                           Hon. Diane M. Price

Counsel for Appellants:                Law Office of Joseph Antonelli, Joseph
                                       Antonelli, Janelle C. Carney

       Law Office of Kevin T. Barnes, Kevin T. Barnes, Gregg Lander

Counsel for Respondent:                Sheppard, Mullin, Richter & Hampton, Derek
                                       R. Havel, Daniel J. McQueen, Matthew A.
                                       Tobias




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