Filed 2/2/15; pub. order 2/26/15 (see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIRST APPELLATE DISTRICT

                                                DIVISION ONE


EVA VIDAL MIES,
         Plaintiff and Appellant,
                                                         A139410
v.
SEPHORA U.S.A., INC.,                                    (San Francisco City & County
                                                         Super. Ct. No. CGC-12-518619)
         Defendant and Respondent.


         Eva Mies seeks to bring a class action against her former employer, Sephora
U.S.A., Inc. (Sephora), on behalf of employees who, like her, worked as Specialists in
Sephora’s California retail stores. Mies claims Sephora misclassified Specialists as
exempt from certain provisions of California labor law and, as a result, failed to pay
overtime wages and failed to compensate them for missed meal periods. However, after
crediting evidence that all Specialists do not engage in the same tasks to the same extent,
the trial court denied class certification, concluding individualized issues, not common
ones, would predominate the determination of liability. We conclude the trial court used
proper legal criteria in assessing class certification and substantial evidence supports the
trial court’s findings. We therefore also conclude the court did not abuse its discretion in
denying class certification.
                             FACTUAL AND PROCEDURAL BACKGROUND
         Sephora operates 47 retail cosmetics stores in California. Each store has a Store
Director, who runs the store, and one to four Specialists. Specialists manage “Cast



                                                     1
Members” (sales associates) and “Leads” (lead consultants, floor leads, or sales leads
who take on greater responsibilities and who typically seek promotion to Specialist), and
may manage between 10 and 45 subordinates at any given time.
       In her February 27, 2012, complaint, Mies alleges Sephora has misclassified
Specialists as exempt and paid them lower wages than required by law. She further
alleges Sephora failed to pay overtime wages in violation of Labor Code section 1194,
and engaged in unfair competition in violation of Business and Professions Code
section 17200 by failing to pay these overtime wages, failing to provide Specialists with
meal periods or compensating them for missed periods, improperly paying Specialists in
accrued paid time off (PTO), and, as a result failing to provide accurate wage statements.
Mies additionally seeks statutory penalties under the Labor Code Private Attorneys
General Act of 2004 (Lab. Code, § 2698, et seq.).
       Mies seeks to certify a class of the 99 California-based Specialists employed
between February 22, 2006 and the present. 1 The common issue, according to Mies is
“whether Sephora improperly classified the Specialists as exempt executives or
administrators.” She claims the proper classification of these Specialists can be
determined by common proof, without a highly individualized inquiry for each employee.
       In support of her class certification motion, Mies presented evidence she maintains
shows the Specialist position is standardized, and thus amenable to class treatment.2 This

       1
         Mies also sought to certify a class of all Sephora employees receiving accrued
PTO in lieu of actual wages. The trial court did not certify this class, and Mies has not
challenged that ruling on appeal.
       2
          Mies also submitted evidence she claims establishes the Specialists do not
perform certain classic “exempt” functions (i.e., do not choose which products Sephora
will sell and do not set company-wide policies) and do perform, to some extent, classic
“non-exempt” functions (such as selling product pursuant to detailed policies set from
above). This evidence largely goes to the merits of her claims, not to the crucial question
of whether the status of Specialists should be adjudicated on a class-wide basis, except to
the extent the evidence also relates to whether employees performed the same tasks or
spent the same or different amounts of time on various tasks. (See Brinker Restaurant

                                             2
included the fact there has been a single job description for Specialists since 1999. This
description includes such activities as “directly manage a zone in terms of sales,
operational and human resources functions,” “ensure . . . adherence to” corporate culture
and policies, model client service standards, recruitment, supervision, and discipline of
employees, ensure store presentations are appropriate, conduct inventories, “learn to
perform cashier duties”, move about the selling floor and offices, and “[a]ssume Store
Director’s responsibilities when assigned as Director-in Charge.”
       The job description also refers to company-wide policies covering innumerable
tasks to be performed in Sephora stores, whether completed by a Specialist or some other
employee. Additionally, some tasks are assigned from above “store level” via e-mail or
an electronic planning system, and Specialists review these communications and assure
task completion. There is also a training program for all new Specialists, to ensure
consistency in training. Specialists are evaluated in part on how well their store fares
during audits for policy compliance.
       In making her case for class certification, Mies also pointed to a 2010 in-house
survey of how Sephora leadership (Store Directors, Specialists and Leads) spent non-
selling time, which relied upon a single list of activities to analyze leadership time at all
stores. The survey found leadership employees, collectively, generally spent the same
percentage of time tackling non-selling tasks regardless of their store’s sales volume.
       Mies also asserted the trial court could look to statistical evidence to determine
liability on a class-wide basis. Mies did not propose or justify any particular statistical
method of her own, however, and submitted no expert testimony. In her opening
memorandum in the trial court, Mies simply stated “[g]iven we know the universe of
tasks Sephora believes a Specialist can perform (based on its [2010] survey),” Mies “will

Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1024–1025 (Brinker) [court should
avoid addressing merits when possible].) To the extent such evidence is relevant to our
decision, we discuss it.


                                               3
present evidence through a statistical sample of the class, which will determine how
much time Specialists spend on specified tasks” and “therefore establish, on a collective
basis, whether [they] spend more than 50% of their time” doing nonexempt work. In her
reply memorandum, Mies clarified she was not offering a statistical method of her own,
but relying on Sephora’s expert’s deposition testimony, which she believed was evidence
statistical sampling would give proof of class-wide liability. She cited Sephora’s expert’s
testimony about the usefulness of time and motion studies (essentially, employee
monitoring) to ascertain what time a given employee spends on certain tasks. Moreover,
the expert testified he had used such a study in connection with a class certification
motion in a different case involving the question of employee classification. According
to e-mails between Sephora and its expert, Sephora had considered conducting an
observation study of 10 Specialists for its own purposes in this case, but apparently
decided it was not then worth the cost.
       Sephora opposed class certification with evidence the duties of Specialists varied.
A Sephora District Manager, Kelly Guerriero, declared company policies do not dictate
everything a Specialist does, and Specialists “constantly have to use good judgment” to
resolve situations with clients and with the employees they manage. She further stated
the work of a Specialist varies with the size of the store, the number of Specialists
employed at the store, the skills and experience of the Specialists, and the management
style of the Store Director. Additionally, some stores have Operation Specialists and HR
Specialists. In stores without such employees, Specialists also perform these functions.
In stores with Operation and HR Specialists, regular Specialists “spend more time
coaching, training and developing their subordinates” on the sales floor.
       Sephora also submitted declarations by a substantial number of Specialists. One
recounted the differences in tasks she performed while a Specialist at two San Francisco
stores, one in the Stonestown Mall (where she was the “right hand” of the Store Director)
and a larger one on Powell Street (where she and other Specialists had more delineated

                                              4
roles). Another Specialist explained she ran a store for months while the position of
Store Director was vacant.
       Both Mies and Sephora submitted declarations from Specialists who estimated the
time they spent performing various tasks. On the whole, Mies’ declarants testified to
spending most of their time selling to clients on the sales floor (activity Mies contends is
not exempt from the labor laws). One Specialist stated she was selling 90 percent of her
time and taking directions from the Store Director the remaining 10 percent and never
“really engage[d] in any training” of employees. Another said she spent 75 percent of
her time on the sales floor, while another said she spent 95 percent of her day in direct
contact with clients.
       Sephora’s declarants related different experiences. For example, one said she
spent 80–90 percent of her time on management tasks, including working as Director in
Charge (in the Store Director’s absence), preparing the store schedule, hiring, and human
resources development, and only 10–20 percent of her time selling, an activity which was
to be avoided. Another Specialist estimated spending 60–70 percent of her time on
management and back office tasks, and 30–40 percent of her time on sales tasks. And
another testified to spending 70–80 percent of her time on back office management and
20–30 percent on sales as a Director in Charge and coaching/training staff. Deposition
testimony of a Sephora designee most knowledgeable about the duties of Specialists
stated “in an ideal world” Specialists “would be out there [selling] all the time” but “it’s
not realistic” because of the job’s “operational and people development . . .
responsibilities.” The witness continued, the percentage of time selling “would range by
store size and volume etc. . . . and so one expectation wouldn’t even be realistic.”
       According to Sephora’s District Manager, it was common for Specialists to take
charge of a store, because, given the long retail hours, Store Directors were not always
present. Sephora’s Specialist declarants, likewise, reported spending differing amounts
of time as “Director in Charge” (for example, between 7–15 hours per week, or 10–16

                                              5
hours per week, or 15–20 hours per week, or up to 25 hours during holidays). Many
noted they exercised their independent judgment while Director in Charge, and also while
eliminating applicants from hiring pools or recommending them, deciding what employee
conduct to discipline, when to coach staff, or whether to bend rules for customers (e.g.
regarding sales promotions).
       Sephora also took issue with Mies’ proposed statistical approach and provided a
declaration from its expert stating sampling would not offer statistically useful evidence
in the present case as to whether the class as a whole, or certain unobserved individuals in
it, spent 50 percent of their time on exempt or non-exempt work. The expert also, at his
deposition, commented on the list of tasks Sephora devised in connection with its 2010
survey of Leads, Specialists, and Store Directors, noting “a list of tasks doesn’t really get
you anywhere . . . you really have to understand . . . how time is allocated to those tasks,
and that’s the important question.”
       In ruling on the class certification motion, the trial court focused on whether
common or individual issues would predominate. It found there would be some common
issues, such as “how to define non-exempt v. exempt tasks, as well as the law that applies
to those found to be working over 50% at non-exempt tasks.” It also acknowledged the
existence of company-wide policies applicable to Specialists (and numerous other
categories of Sephora employees) suggesting how Specialists might spend portions of
their time, at least in theory. These policies governed, for example, how to work the
selling floor (when to greet customers, what to wear, and how to price and arrange many
of the products).
       The court concluded, however, the “central issue for trial” would be “how the
Specialists spend their time, not whether a given task” is exempt. It further concluded the
generally applicable company policies, alone (which applied to Specialists and other
employees alike), could not “at least in this case” provide a common basis for
determining whether a given Specialist was exempt, because the Specialists’

                                              6
declarations—the trial court credited declarations submitted by Mies and Sephora
equally—showed Specialists “handled their time very differently” in performing a wide
variety of tasks.3 The declarations equally supported the propositions some Specialists
spent more, and some Specialists spent less, than 50 percent of their time doing exempt
work,4 and it was not clear to the trial court how it could determine, on a class-wide basis,
how the Specialists spent their time and whether they were collectively nonexempt or
exempt. It found Mies’ promise of statistical evidence to prove class-wide liability
insufficient, as she did not explain her proposal or how it could manage class issues. The
court also believed use of statistical evidence to prove liability would violate Sephora’s
right to due process. Thus, the trial court was not persuaded common issues would
predominate and denied certification.
                                        DISCUSSION
Relevant Labor Law
       “California’s Labor Code generally requires overtime pay for employees working
more than 40 hours in a given workweek. (Lab. Code, § 510, subd. (a).)” (Dailey v.
Sears, Roebuck & Co. (2013) 214 Cal.App.4th 974, 978 (Dailey).) It also generally
provides employees with meal periods and rest breaks. (Brinker, supra, 53 Cal.4th at
p. 1018.) Certain employees, however, are exempt from these protections as a result of
Labor Code provisions and regulations of the Industrial Wage Commission (IWC).
(Daily, supra, 214 Cal.App.4th at pp. 978–979; Brinker, supra, 53 Cal.4th at p. 1018;

       3
          The trial court found Specialists engaged in tasks such as “selling, arranging
products, tending the cash register, as well as assuming store director responsibilities
from time to time, interviewing and making at least preliminary decisions as to hiring,
contributing to performance evaluations and other tasks which are arguably exempt
work.”
       4
          The trial court viewed the evidence as to how much time Specialists spent on the
selling floor, as opposed to in the back office, as “highly varied.” Reviewing the
declarations of Specialists from both parties, it concluded they presented “widely
divergent views of how Specialists spend their time.”


                                             7
§§ 515, subd. (a) [allowing exemption from overtime pay]; 226.7, subd. (d) [allowing
exemption from meal and rest periods].)
       IWC wage order No. 7-2001 governs mercantile5 employees, such as Specialists.
(Cal. Code Regs. tit. 8, § 11070.) It implements the overtime and break requirements of
the Labor Code for “nonexempt” employees and defines those “exempt” employees who
are to be treated differently. Exempt individuals are “persons employed in
administrative, executive, or professional capacities.” (Cal. Code Regs. tit. 8, § 11070,
subd. (1)(A).)
       Sephora maintains Specialists are exempt because they are employed in an
executive or administrative capacity. Under IWC wage order No .7-2001, a person
“employed in an executive capacity means any employee” earning a certain minimum
amount “(a) Whose duties and responsibilities involve the management of the enterprise
in which he/she is employed or of a customarily recognized department or subdivision
thereof; and [¶] (b) Who customarily and regularly directs the work of two or more other
employees therein; and [¶] (c) Who has the authority to hire or fire other employees or
whose suggestions and recommendations as to the hiring or firing and as to the
advancement and promotion or any other change of status of other employees will be
given particular weight; and [¶] (d) Who customarily and regularly exercises discretion
and independent judgment; and [¶] (e) Who is primarily engaged[6] in duties which meet
the test of the exemption. The activities constituting exempt work and non-exempt work
shall be construed in the same manner as such items are construed in the following
       5
           “ ‘Mercantile Industry’ means any industry, business, or establishment operated
for the purpose of purchasing, selling, or distributing goods or commodities at wholesale
or retail; or for the purpose of renting goods or commodities.” (Cal. Code Regs. tit. 8,
§ 11070, subd. (2)(H).)
        6
           “ ‘Primarily’ as used in Section 1, Applicability, means more than one-half the
employee’s work time.” (Cal. Code Regs. tit. 8, § 11070, subd. (2)(K).) The Labor Code
section authorizing the IWC to exempt certain employees from overtime pay defines
“primarily” as “more than one-half of the employee’s worktime.” (§ 515, subd. (e).)


                                             8
regulations under the Fair Labor Standards Act[7] effective as of the date of this order:
29 C.F.R. Sections 541.102,[8] 541.104–111, and 541.115–116.[9] Exempt work shall
include, for example, all work that is directly and closely related to exempt work and
work which is properly viewed as a means for carrying out exempt functions. The work
actually performed by the employee during the course of the workweek must, first and
foremost, be examined and the amount of time the employee spends on such work,
together with the employer’s realistic expectations and the realistic requirements of the
job, shall be considered in determining whether the employee satisfies this requirement.”
(Cal. Code Regs. tit. 8, § 11070, subd. (1)(A)(1).)

       7
          Title 29 United States Code section 201 et seq.
       8
          “Generally, ‘management’ includes, but is not limited to, activities such as
interviewing, selecting, and training of employees; setting and adjusting their rates of pay
and hours of work; directing the work of employees; maintaining production or sales
records for use in supervision or control; appraising employees’ productivity and
efficiency for the purpose of recommending promotions or other changes in status;
handling employee complaints and grievances; disciplining employees; planning the
work; determining the techniques to be used; apportioning the work among the
employees; determining the type of materials, supplies, machinery, equipment or tools to
be used or merchandise to be bought, stocked and sold; controlling the flow and
distribution of materials or merchandise and supplies; providing for the safety and
security of the employees or the property; planning and controlling the budget; and
monitoring or implementing legal compliance measures.” (29 C.F.R. § 541.102.)
       9
          These regulations discuss the importance of managing two or more subordinates
(29 C.F.R. § 541.104); what it means for an employee’s hiring or firing recommendation
to be given particular weight (29 C.F.R. § 541.105 [consider whether part of employee’s
job duties, frequency given and relied upon; can have weight “even if a higher level
manager’s recommendation has more importance and even if the employee does not have
authority to make the ultimate decision as to the employee’s change in status”]; and the
impact of performing exempt and non-exempt tasks concurrently (29 C.F.R. § 541.106
[“An assistant manager can supervise employees and serve customers at the same time
without losing the exemption” yet “a relief supervisor or working supervisor whose
primary duty is performing nonexempt work on the production line in a manufacturing
plant does not become exempt merely because the nonexempt production line employee
occasionally has some responsibility for directing the work of other nonexempt
production line employees.”].)


                                              9
       Similarly, a “person employed in an administrative capacity means any employee”
earning a certain minimum amount whose duties involve “office or non-manual work
directly related to management policies or general business operations of his/her
employer or their employer’s customer.” (Cal. Code Regs. tit. 8, § 11070, subd.
(1)(A)(2)(a).) The employee also must be one “(b) Who customarily and regularly
exercises discretion and independent judgment; and [¶] (c) Who regularly and directly
assists a proprietor, or an employee employed in a bona fide executive or administrative
capacity (as such terms are defined for purposes of this section); or [¶] (d) Who performs
under only general supervision work along specialized or technical lines requiring special
training, experience, or knowledge; or [¶] (e) Who executes under only general
supervision special assignments and tasks; and [¶] (f) Who is primarily engaged in duties
that meet the test of the exemption. The activities constituting exempt work and non-
exempt work shall be construed in the same manner as such terms are construed in the
following regulations under the Fair Labor Standards Act effective as of the date of this
order: 29 C.F.R. Sections 541.201–205, 541.207–208, 541.210, and 541.215.[10] Exempt
work shall include, for example, all work that is directly and closely related to exempt
work and work which is properly viewed as a means for carrying out exempt functions.
The work actually performed by the employee during the course of the workweek must,
first and foremost, be examined and the amount of time the employee spends on such
work, together with the employer’s realistic expectations and the realistic requirements of

       10
           To be work directly related to management or general business operations, “an
employee must perform work directly related to assisting with the running or servicing of
the business, as distinguished, for example, from working on a manufacturing production
line or selling a product in a retail or service establishment.” (29 C.F.R. § 541.201.)
“The exercise of discretion and independent judgment implies that the employee has
authority to make an independent choice, free from immediate direction or supervision.
However, employees can exercise discretion and independent judgment even if their
decisions or recommendations are reviewed at a higher level.” (29 C.F.R. § 541.202
[discussing types of activity that involve independent judgment].)


                                            10
the job, shall be considered in determining whether the employee satisfies this
requirement.” (Cal. Code Regs. tit. 8, § 11070, subd. (1)(A)(2).)
       Under both definitions, whether an employee is exempt depends not only upon
factors related to the job, itself (e.g., “employer’s realistic expectations” and “realistic
requirements of the job”), but also “first and foremost” upon what an employee actually
does on the job (e.g., “work actually performed”). (See Duran v. U.S. Bank Nation Assn.
(2014) 59 Cal.4th 1, 27 (Duran); Dailey, supra, 214 Cal.App.4th at p. 989 [classification
issue requires proof of not only employer expectations but also “whether proposed class
members in fact engage primarily in nonexempt activities”].) “No bright-line rule can be
established classifying everyone with a particular job title as per se exempt or
nonexempt.” (United Parcel Service Wage & Hour Cases (2010) 190 Cal.App.4th 1001,
1015.) Thus, even though “[e]mployers often treat all workers within a job position as
either exempt or nonexempt” in reality, “exemptions frequently depend on how
individual employees perform their jobs.” (Duran, supra, 59 Cal.4th at p. 25.)
Class Certification Considerations and Standard of Review
       “A class action may be maintained if there is ‘an ascertainable class and a well-
defined community of interest among the 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.” (Duran, supra, 59 Cal.4th at p. 28.)
The “ ‘ultimate question’ for predominance is 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.’ ” (Ibid.) The answer depends on whether liability under a
the class proponent’s theory of recovery can be proved with facts common to all
members of the class. “[C]lass treatment is not appropriate ‘if every member of the
alleged class would be required to litigate numerous and substantial questions



                                              11
determining his individual right to recover following the “class judgment” ’ on common
issues.” (Ibid.)
       Because actions asserting misclassification will typically require an inquiry into a
particular job type and into the work actually done by individuals within that job
category, these actions often involve both common and individualized issues. The
inquiry into a job’s requirements and an employer’s expectations likely involves common
issues. (Duran, supra, 59 Cal.4th at p. 27 [“Job requirements and employer expectations
of how duties are to be performed may often be established by evidence relating to a
group as a whole.”]; Sav-on Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319,
337 (Sav-on) [“considerations such as ‘the employer’s realistic expectations’ . . . and ‘the
actual overall requirements of the job’ . . . are likely to prove susceptible of common
proof”].)
       The inquiry into what work is actually done, however, can be heavily
individualized. (See Duran, supra, 59 Cal.4th at p. 27 [“the outside salesperson
exemption [to overtime pay] has the obvious potential to generate individual issues
because the primary considerations are how and where the employee actually spends his
or her workday”]; Sav-on, supra, 34 Cal.4th at pp. 336–337 [“Any dispute over ‘how the
employee actually spends his or her time’ [citation] , of course, has the potential to
generate individual issues.”]; Soderstedt v. CBIZ Southern California, LLC (2011)
197 Cal.App.4th 133, 148 (Soderstedt) [“evaluation of whether the elements of the
administrative exemption have been established requires a fact-intensive inquiry,
including an examination of the actual work performed by the employee”].)
       When there are both common and individual issues, the question for the trial court
is which sort of issues predominate. (Duran, supra, 59 Cal.4th at p. 28 [“The granting of
class certification thus requires a determination that group, rather than individual, issues
predominate.”]; Sav-on, supra, 34 Cal.4th at pp. 336–337; see also id. at pp. 333–334
[“Predominance is a comparative concept” and class actions are not inappropriate simply

                                             12
because there may be some individual issues “ ‘at some point’ ” in determining a class
member’s eligibility for relief.].)
        One distinction the Supreme Court has drawn with respect to an employer’s
defense of exempt classification is whether the defense merely raises questions about
individuals’ recovery (“questions about the calculation of damages generally do not
defeat certification”) or whether the defense hinges on the employer’s liability and the
determination of “factual questions specific to individual claimants,” which can present a
“greater challenge to manageability.” (Duran, supra, 59 Cal.4th at p. 30 [“ ‘Only in an
extraordinary situation would a class action be justified where, subsequent to the class
judgment, the members would be required to individually prove not only damages but
also liability.’ ”].)
        Yet “individual issues will not necessarily overwhelm common issues when a case
involves exemptions premised on how employees spend the workday.” (Duran, supra,
59 Cal.4th at p. 31, citing Sav-on, supra, 34 Cal.4th at pp. 327–328.) In Sav-on, the
Supreme Court upheld certification of an overtime class action based on a showing that
all plaintiffs performed jobs that were highly standardized. As a result, class members
performed essentially the same tasks, most of which were nonexempt as a matter of law.
(Id. at pp. 327–328.) Further, the defendant’s corporate policy required all class
members to work overtime. (Id. at p. 327.) Where standardized job duties or other
policies result in employees uniformly spending most of their time on nonexempt work,
class treatment may be appropriate even if the case involves an exemption that typically
entails fact-specific individual inquiries.” (Duran, supra, 59 Cal.4th at p. 31
[summarizing Sav-on].)
        Whether to grant or deny class certification is a matter within a trial court’s
discretion. (Dunbar v. Albertson’s, Inc. (2006) 141 Cal.App.4th 1422, 1430–1431.) That
said, “appellate review of orders denying class certification differs from ordinary
appellate review. Under ordinary appellate review, we do not address the trial court’s

                                              13
reasoning and consider only whether the result was correct. [Citation.] But when
denying class certification, the trial court must state its reasons, and we must review those
reasons for correctness. [Citation.] We may only consider the reasons stated by the trial
court and must ignore any unexpressed reason that might support the ruling. [Citations.]
[¶] We will affirm an order denying class certification if any of the trial court’s stated
reasons was valid and sufficient to justify the order, and it is supported by substantial
evidence. [Citations.] We will reverse an order denying class certification if the trial
court used improper criteria or made erroneous legal assumptions, even if substantial
evidence supported the order. [Citations.] A trial court’s decision that rests on an error
of law is an abuse of discretion. [Citations.]” (Knapp v. AT&T Wireless Services, Inc.
(2011) 195 Cal.App.4th 932, 939.)
Given the Conflicting Evidence, the Trial Court Did Not Abuse Its Discretion in
Denying Certification
       “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 . . . .” (Dailey, supra, 214 Cal.App.4th at p. 991.)
       As the Supreme Court has noted, this deferential aspect of the standard of review
means that when an employee has sought to certify a “misclassification” class of fellow
employees with the same job title, the Courts of Appeal have “routinely upheld” trial
court orders denying certification, while also upholding other trial court orders granting
certification. (Duran, supra, 59 Cal.4th at p. 25.) Thus, in Sav-on, for instance,
affirmance of class certification was appropriate after the trial court credited the
plaintiffs’ disputed evidence of (1) a deliberate corporate policy of misclassifying
assistant and operating managers and (2) operational standardization causing those
mangers to be misclassified contrary to the employer’s expectations. (Sav-on, supra,
34 Cal.4th at p. 329.) The court took pains to point out the trial court could have credited

                                               14
the employer’s evidence of no intentional misclassification and evidence the “actual tasks
performed by class members and the amount of time spent on those tasks var[ied]
significantly from manager to manager.” (Id. at p. 331.) Had the trial court done so and
reached the contrary conclusion—that individual instead of common issues
predominated—denial of certification might have been affirmed on the very same
evidentiary record. (Ibid.)11
       The Court of Appeal in Dailey, supra, 214 Cal.App.4th at pages 991–992, applied
the same deferential standard of review to affirm denial of certification. It saw “nothing
inappropriate in the trial court’s examination of the parties’ substantially conflicting
evidence of Sears’s business policies and practices and the impact those policies and
practices had on the proposed class members.” (Id. at p. 991.) The trial court was well
within its discretion “to have credited Sears’s evidence indicating that highly
individualized inquiries would dominate resolution of the key issues in this case.” (Id. at
pp. 991–992.) Further, the evidence—testimony of 21 proposed class members and six
other personnel stating any uniform policies either did not exist or did not, as applied,
uniformly result in proposed class members primarily performing nonexempt work—was
substantial enough to support denial of certification. (Id. at pp. 992–997.) Dailey
featured the same kind of divergent declarations in the record here: “in contrast to
Dailey’s witnesses, who state that Managers and Assistant Managers routinely spend 75
to 90 percent of their time performing typical nonexempt work, Sears’s declarants aver
they spend anywhere from 1 to 40 percent of their time on nonmanagerial, nonexempt
tasks.” (Id. at p. 995.)



       11
           Thus, the fact some trial courts certify classes based in part on an employer’s
common policies and procedures, or whether some appellate courts affirm these
certification orders, does not tell us whether the trial court in this case abused its
discretion in declining to certify a class.


                                             15
       Given the deference owed to the trial court (Sav-on, supra, 34 Cal.4th at p. 331;
Dailey, supra, 214 Cal.App.4th at pp. 991, 997), we have no trouble concluding
substantial evidence supports the trial court’s finding that individual issues are likely to
predominate and there was no abuse of discretion in denying class certification.
       The trial court reasonably credited the declarations of Specialists from both sides,
which, read together, suggest Specialists’ exempt duties vary significantly from store to
store and Specialist to Specialist, despite there being an understanding as to what tasks
Specialists are likely to perform and despite Sephora having company-wide operational
policies. (Dailey, supra, 214 Cal.App.4th at p. 997 [“In light of [the] . . . substantial
evidence disputing the uniform application of its business policies and practices, and
[the] showing [of] a wide variation in proposed class members’ job duties, the trial court
was acting within its discretion in finding that plaintiff’s theory of . . . liability was not
susceptible of common proof at trial.”]; see also Walsh v. IKON Office Solutions, Inc.
(2007) 148 Cal.App.4th 1440, 1458 [“record suggests that the ‘dispute over “how the
employee actually spends his or her time” ’ does ‘generate individual issues’ which, in
the trial court’s estimation, rendered commonality so lacking as to destroy the
justification for class”]; Dunbar v. Albertson’s, Inc. (2006) 141 Cal.App.4th 1422, 1431
[“the significant variation in the grocery managers’ work from store to store and week to
week” required “very particularized individual liability determinations”].)
       Given the evidence before it, the trial court here could reasonably view the likely
disputes at trial as being less about how to classify certain tasks (such as selling) and the
impact of company policies, and more about how individual Specialists spend their
time.12 “Wide variation among class members is a factor informing whether the

       12
          This is unlike Sav-on, where the trial court did not credit evidence time spent
on tasks varied significantly from employee to employee, such that, in spite of any
variations, the dispute was primarily over how to characterize the tasks the employees
performed. (Sav-on, supra, 34 Cal.4th at pp. 330–331 [“ ‘[t]he only difference between
Defendant’s declarations and Plaintiffs’ evidence is that the parties disagree on whether

                                               16
exemption question can be resolved by a simple ‘yes’ or ‘no’ answer for the entire
class.”13 (Duran, supra, 59 Cal.4th at p. 32.)
       Mies claims the trial court did not consider her theory that, to be exempt, a
Specialist must “customarily and regularly exercise[] discretion and independent
judgment.” (See Cal. Code Regs. tit. 8, § 11070, subd. (1)(A)(1)–(2).) She then faults
the court for not evaluating whether every Specialist uniformly could not, and did not,
perform exempt work requiring such independence, because Sephora’s detailed policies
governed all aspects of store operations and curtailed all Specialists’ independence.
       However, the trial court did recognize there would likely be common questions
about whether a given task involved sufficient discretion or independent judgment to be
exempt. Nevertheless, it viewed “how Specialists spend their time” as being the more
“central” issue for trial. Resolution of this issue, the court concluded, would likely turn
less on Sephora’s general operational policies, and more on evidence, as in the
Specialists’ declarations, pertaining to the nature of each individual’s actual work. The
court also acknowledged the policies’ detailed nature, but reasonably found such
operational minutia offered little insight into class-wide liability, especially in light of the
declarations showing Specialists handled their time very differently, varying as to the
nature and level of the tasks and the time spent on those tasks. In the end, the trial court
weighed the foreseeable common and individual issues, and reasonably concluded the
Specialists’ proper classification would likely hinge on individualized proof. This sort of


certain identical work tasks are “managerial” or “non-managerial.” ’ ”]; see Dailey,
supra, 214 Cal.App.4th at p. 995 [in Sav-on, focus on whether certain tasks were exempt,
not whether employees actually performed similar amounts of similar tasks in light of a
supposedly uniform and adhered-to corporate policy].)
        13
           That the variation is relevant to the liability question differentiates this case
from Bradley v. Networkers Internat., LLC (2012) 211 Cal.App.4th 1129, 1147 and
footnote 7, in which the small differences in what workers did day to day was irrelevant
to the central question of whether those workers, who sought classification, were properly
classified as employees or independent contractors.


                                              17
balancing analysis was appropriate. (See Sav-on, supra, 34 Cal.4th at p. 334
[“Predominance is a comparative concept”].)
       Moreover, the mere fact Sephora has common policies applicable to all
employees, including Specialists, cannot, alone, compel class certification. (Duran,
supra, 59 Cal.4th at p. 29 [even when the party proposing a class asserts “the employer
consistently imposed a uniform policy or de facto practice on class members, the party
must still demonstrate that the illegal effects of this conduct can be proven efficiently and
manageably within a class setting.”]; Koval v. Pac. Bell Telephone Co. (2014)
232 Cal.App.4th 1050, 1060 [“existence of a uniform policy does not limit a trial court’s
inquiry into whether class action treatment is appropriate”]; Dailey, supra,
214 Cal.App.4th at p. 989; see also Arenas v. El Torito Restaurants, Inc. (2010)
183 Cal.App.4th 723, 734 (Arenas) [“[t]he trial court concluded plaintiffs’ theory of
recovery—that managers, based solely on their job descriptions, were as a rule
misclassified—was not amenable to common proof” given evidence employees’ “duties
and time spent on individual tasks varied widely”].) To the contrary, “courts have
routinely concluded that an individualized inquiry is necessary even where the alleged
misclassification involves application of a uniform policy.” (Soderstedt, supra, 197
Cal.App.4th at pp. 152–153.)
       Mies would have us, from Sephora’s detailed policies, draw inferences about what
every Specialist actually does and how much independence every Specialist actually
exercises, while essentially ignoring the declarations from both sides, which the trial
court credited on those very subjects—declarations that indicate a lack of class-wide
uniformity. 14 Mies request, then, is one to reweigh the evidence on appeal, something

       14
          We also note Specialists, according to their job description, are to “[e]nsure
compliance” and “motivate” compliance with company policies, which is a very different
thing than simply complying with them. Mies’ misrepresents the job description, stating
on page eight of her opening brief and on page five of her reply brief, only that the
description mandates personal compliance with various policies. That Specialists are, on

                                             18
we cannot do. (Dailey, supra, 214 Cal.App.4th at p. 991; Sav-on, supra, 34 Cal.4th at
p. 338 [“Court of Appeal erred to the extent it engaged in any reweighing of . . .
evidence”].)15
       Mies further asserts the trial court, in denying certification, “used improper criteria
or made erroneous legal assumptions” that require reversal. (See Knapp v. AT&T
Wireless Services, Inc., supra,195 Cal.App.4th at p. 939.) She claims, for example, “the
trial court in this case ignored” that a class proponent need not show misclassification
(that is, liability) will or will not be found as to every class member. (See Sav-on, supra,
34 Cal.4th at p. 338 [not a prerequisite to class certification to prove a classification
policy was “ ‘right as to all members of the class or wrong as to all members of the
class’ ”].) But the trial court did not “ignore” this premise, nor did it apply a contrary
premise. It did not, for instance, insist that Mies prove all Specialists are in fact
misclassified. Rather, it concluded, consistent with the case law we have discussed,



paper, responsible for overseeing policies suggests the job has more room for
independence and nuance than Mies suggests.
        15
            This is not a case like Williams v. Superior Court (2013) 221 Cal.App.4th 1353,
1358, 1369–1370 or Jones v. Farmers Ins. Exchange (2013) 221 Cal.App.4th 986, 996, in
which the class disputes (which were not misclassification disputes) centered on whether
application of a uniform policy (no compensation for time before arrival at first worksite;
no compensation for at home “computer sync time”) was lawful. If unlawful, some class
members would be damaged and some might not be, but the employer would face
liability as to each. Here, the question is not the legality of Sephora’s operational
procedures. Instead, the parties dispute the evidentiary value of the policies—Mies
claims they demonstrate total uniformity in the tasks Specialists perform and the manner
in which they perform them. Sephora disagrees, and points to the varied declarations of
Sephora employees, evidence the trial court credited. Thus, unlike in Williams and
Jones, the policies here are just a piece of a far more complicated puzzle and do not, in
light of the trial court’s factual determinations, provide a means of readily determining
liability issues for the entire proposed class. The same rationale distinguishes Benton v.
Telecom Network Specialists, Inc. (2013) 220 Cal.App.4th 701, 726, in which the issue
was whether a policy regarding meal and rest breaks was unlawful on its face as to all
class members.


                                              19
certification would be proper if common issues predominated but concluded they did not,
given the evidence as to the varying ways Specialists actually spend their time.
       Mies also claims the trial court erroneously reviewed the evidence for success on
the merits, and not merely for commonality or individuality of class members’ issues.
(See Jaimez v. DAIOHS USA, Inc. (2010) 181 Cal.App.4th 1286, 1300 (Jaimez) [“The
determination of whether to certify a class does not contemplate an evaluation of the
merits.”].)16 The trial court did not resolve the merits of this case. Rather, as discussed,
it carefully considered whether common issues or individual issues would likely
predominate, concluding that how Specialists actually spend their time would be not only
the key issue, but an issue not suited to class-wide treatment, given the conflicting
declarations on the subject and lack of a viable plan for statistical evidence.17
       Finally, the trial court did not err in rejecting Mies’ proposal to use statistical
evidence to prove liability with respect to absent class members. Mies’ proposal was
undeveloped and unsubstantiated, and the court was not required to accept her unjustified
assurances regarding what she could prove, especially given the declaration of Sephora’s
expert stating the use of sampling to determine liability with respect to absent class
members would not work. (Duran, supra, 59 Cal.4th at pp. 31–32 [“a statistical plan for
managing individual issues must be conducted with sufficient rigor”]; Dailey, supra,
214 Cal.App.4th at pp. 998–999 [“a mere proposal for statistical sampling” not “an

       16
           While Jaimez reversed a trial court’s denial of certification, the
misclassification question in that case was not complicated by evidence employees in the
prospective class carried out varied duties that would affect the classification analysis on
an employee by employee basis—the only “individualized” issue was whether an
employee suffered more or less damages. (Jaimez, supra, 181 Cal.App.4th at p. 1301;
see id. at p. 1290 [the defendant employer had, out of caution several years before the
suit, reclassified employees as nonexempt].) Jaimez therefore does not compel reversal
here. (See Soderstedt, supra, 197 Cal.App.4th at p. 153 [distinguishing Jaimez on similar
grounds].)
        17
           Thus, if Mies later wishes to argue in an individual action that Sephora policies
are viable evidence of the nature of her work as a Specialist, she may still do so.


                                              20
adequate evidentiary substitute for demonstrating the requisite commonality”], italics
omitted; cf. Mora v. Big Lots Stores, Inc. (2011) 194 Cal.App.4th 496, 510
[“Dr. Hoffman had not yet conducted a survey and his declaration describing the proper
method for designing and implementing a scientific survey did nothing to refute the
evidence presented by Big Lots that it did not operate its stores or supervise its managers
in a uniform and standardized manner.”].)18

       18
            On November 19, 2014, after the case was submitted following argument, Mies
filed a letter asking this court to consider the recent (and not yet final) decision of
Martinez v. Joe’s Crab Shack Holdings (2014) 231 Cal.App.4th 362 (Martinez). We
have reviewed the decision and conclude it does not change the calculus for Mies.
        In Martinez, 182 mangers (including general managers and several types of
assistant managers) at 13 California “Joe’s Crab Shack” eateries sought class treatment in
an overtime case, which, like this one, appears to hinge on the employee classification
question. (Martinez, supra, 231 Cal.App.4th at pp. 369–371, fn. 4.) According to the
Martinez plaintiffs, “[w]hat was common to [the manager] plaintiffs, in addition to . . .
standard policies implemented . . . at each of their restaurants, was their assertions their
tasks did not change once they became managers; they performed a utility function and
routinely filled in for hourly workers in performing nonexempt tasks; and they worked
far in excess of 40 hours per week without being paid overtime wages.” (Id. at p. 376.)
        Martinez did not view all the managers equally. The appellate court distinguished
between the assistant managers, where “many of the tasks [they] performed . . . are
identical to those performed by nonexempt employees,” and the general managers (a
large number of whom opposed certification), where many mainly performed “higher
rung” functions, manifestly exempt, and spent a minority of their time on tasks that
nonexempt employees typically completed (yet the general managers asserted these tasks
were done in a training or supervisory role). The appellate court suggested the trial court
had erred in its analysis as to the “subordinate managerial employees” and remanded for
reconsideration of certification. (Id. at pp. 377, 380–381.) As to these subordinate
managers, who continued to perform the same sorts of tasks they did when nonexempt
employees, the appellate court viewed “[t]he crux of the matter”—the key question for
trial—as “whether a typically nonexempt task becomes exempt when performed by a
managerial employee charged with supervision of other employees.” (Id. at p. 381.) As
to general managers, however, whose tasks were more varied and “higher rung,” the
appellate court indicated the trial court could, on remand, “exercise its discretion . . . to
exclude [them] entirely from the class definition.” (Id. at p. 376.)
        The record in the instant case differs. There is substantial evidence Specialists do
not share the same level of uniformity in work as the subordinate managers in Martinez.
Rather, the evidence, as permissibly credited by the trial court, shows Specialists,

                                              21
                                      DISPOSITION
      The order denying class certification is affirmed.



                                                _________________________
                                                Banke, J.


We concur:


_________________________
Margulies, Acting P. J.


_________________________
Dondero, J.




depending on their individual situation, engaged in various amounts of higher-level
managerial tasks, tasks like those done by the general managers in Martinez. Moreover,
the key question in this case need not be viewed as “whether a typically nonexempt task
becomes exempt” when performed by a Specialist, but whether individual Specialists
engaged in management more than half of their time. (See Duran, supra, 59Cal.4th at p.
27 [exemption depends first and foremost upon what an employee actually does on the
job].) We also note Martinez approved the outcomes in Dailey, supra, 214 Cal.App.4th
974, and Arenas, supra, 183 Cal.App.4th 723, which we conclude, for the reasons
discussed above, support affirmance in this case.

                                           22
Filed 2/26/15
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                     DIVISION ONE


EVA VIDAL MIES,
        Plaintiff and Appellant,
                                                   A139410
v.
SEPHORA U.S.A., INC.,                              (San Francisco City & County
                                                   Super. Ct. No. CGC12518619)
        Defendant and Respondent.
                                                 ORDER CERTIFYING OPINION FOR
                                                 PUBLICATION

                                                 [NO CHANGE IN JUDGMENT]



THE COURT:


        The opinion in the above-entitled matter filed on February 2, 2015, was not
certified for publication in the Official Reports. After the court’s review of requests
under California Rules of Court, rule 8.1120, and good cause established under
rule 8.1105, it is hereby ordered that the opinion should be published in the Official
Reports.




Dated: _____________________                      __________________________
                                                        Margulies, Acting P. J.



                                             1
Trial Judge:                            Honorable Curtis E.A. Karnow


Trial Court:                            San Francisco County Superior Court


Workman Law Firm, PC, Robin G. Workman and Aviva N. Roller for Plaintiff and
Appellant.


Orrick, Herrington & Sutcliffe, Andrew R. Livingston, Brooke D. Arena and Aubry R.
Holland for Defendant and Respondent.




                                          1
