Filed 12/15/14 Brookler v. RadioShack CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


MORRY BROOKLER et al.,                                               B256260
                                                                     (Los Angeles County
         Plaintiffs and Appellants,                                  Super. Ct. No. BC313383)

         v.

RADIOSHACK CORPORATION,

         Defendant and Respondent.




                   APPEAL from an order of the Superior Court of Los Angeles County.
Michael L. Stern, Judge. Reversed and remanded with directions.


                   Law Offices of Ian Herzog, Ian Herzog and Evan D. Marshall; Law Offices
of Stephen Glick and Stephen Glick; Daniels, Fine, Israel, Schonbuch & Lebovits, Paul
R. Fine and Scott A. Brooks for Plaintiffs and Appellants.


                   Jones Day, Randy S. Grossman and Beong-Soo Kim; Niddrie, Fish &
Addams and Michael H. Fish for Defendant and Respondent.




                                       __________________________
                                    INTRODUCTION
       The plaintiffs appeal from the trial court’s order sustaining without leave to amend
the defendants’ demurrer to their second amended complaint based on the trial court’s
refusal to consider further class certification proceedings in this action—consideration
expressly contemplated in our prior decision. Accordingly, we reverse the trial court’s
order and remand the matter with directions.

                     FACTUAL AND PROCEDURAL SUMMARY
Initial Proceedings in the Trial Court.
       In 2004, Morry Brookler, in his individual capacity and on behalf of others
similarly situated, filed his first amended complaint against RadioShack, alleging meal
period and other violations. In May 2005, Brookler filed a motion for class certification,
arguing the law required an employer to “ensure” that a 30-minute uninterrupted meal
period is actually taken by the employee. RadioShack opposed the motion, arguing the
law only required an employer to “provide” a meal period. In February 2006, the trial
court certified a class consisting of ‘all non-exempted employees at RadioShack stores in
California from April 7, 2000 through the present who were not provided an
uninterrupted 30-minute meal break following every 5 continuous hours of work.” Citing
Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 963 (Cicairos), the trial
court ruled an employer has “an affirmative obligation to ensure that workers are actually
relieved of all duty,” and common factual questions (that a meal period was missed or cut
short) predominated and no individualized inquiry (as to the reason the meal period was
missed or shortened) was needed to establish liability.1
       In July 2008, the Fourth District, Division One, published its (subsequently
depublished) opinion in Brinker Restaurant v. Superior Court, holding that California law



1     RadioShack’s subsequent writ petition and petition for review were summarily
denied.

                                             2
requires an employer to provide uninterrupted 30-minute meal periods, but does not
require the employer to ensure such meal periods are taken. In August, RadioShack filed
a motion to decertify the class based on the Court of Appeal’s decision in Brinker. In
October, after taking the matter under submission, the trial court granted RadioShack’s
motion for decertification under the Fourth District’s decision in Brinker.
         Later that same month (in October 2008), the California Supreme Court granted
review in Brinker, and Brookler then appealed the trial court’s class decertification order.
Brookler I.
         In August 2010, we reversed the trial court’s order granting RadioShack’s class
decertification motion: “Our Supreme Court’s decision in Brinker will resolve this issue.
In the meantime, however, unless and until our Supreme Court holds otherwise, we agree
with and adopt the analysis in Cicairos, supra, 133 Cal.App.4th 949, holding an
employer’s obligation under the Labor Code and IWC wage orders is to do more than
simply permit meal periods in theory; it must also provide them as a practical matter. If
the employer does not ensure compliance with meal period requirements, such behavior
violates the Labor Code and corresponding wage orders. (See id. at p. 963.)” (Brookler
v. RadioShack Corp. (B212893, Aug. 26, 2010 [nonpub. opn.] (Brookler I).)
         In September 2010, RadioShack filed a petition for review of this decision. In
November, our Supreme Court granted review in Brookler I (S186357), deferring further
action pending the decision in Brinker. In June 2012, our Supreme Court transferred the
matter back to this court, “with directions to vacation [our prior] decision and to
reconsider the cause in light of Brinker Restaurant v. Superior Court (2012) 53 Cal.4th
1004.”
Brookler II.
         In the parties’ supplemental briefing on remand from the Supreme Court, Brookler
argued certification of subclasses was appropriate under the circumstances presented,
while RadioShack argued Brookler should be precluded from seeking certification of

                                              3
subclasses. In Brookler II, we concluded none of the appellate proceedings addressed the
issue of subclasses or barred the trial court from considering the issue of subclasses on
remand. (Brookler v. RadioShack Corp. (Dec. 5, 2012, B212893) [nonpub. opn.]
(Brookler II).)
Proceedings on remand to the trial court.
       Brookler filed a motion for leave to amend his complaint which the trial court
granted, and Brookler filed his second amended complaint on July 18, 2013, alleging
claims on behalf of five new sub-classes. More particularly, Brookler added Johnny
Triplett as an additional named plaintiff and class representative and asserted the
following causes of action: (1) meal period compensation; (2) rest period compensation;
(3) failure to maintain required records; (4) failure to pay wages due former employees in
violation of Labor Code section 203; (5) violations of Business and Professions Code
section 17200 et seq; (6) miscalculating the overtime rate of pay; and (7) recovery of
penalties under the Labor Code Private Attorney General Act of 2004.2
       Brookler defined the following subclasses: Sub-Class 1 comprised of hourly
employees who worked off-the-clock while clocked out for a meal break; Sub-Class 2,
hourly employees who were not allowed to take a meal period because they worked alone
or with a trainee; Sub-Class 3A, hourly employees subject to RadioShack’s rest period
policy in effect prior to April 1, 2001; Sub-Class 3B, hourly employees subject to
RadioShack’s rest period policy in effect since April 1, 2001; Sub-Class 4, a waiting time
penalty class comprised of hourly employees meeting the requirements of Sub-Class 1, 2,
3A and/or 3B who have resigned, been terminated, laid off or otherwise separated from
employment with RadioShack.3


2      We include Triplett in our further references to Brookler unless otherwise
indicated.

3     According to the second amended complaint, Triplett is a member of Sub-Class 1;
both Brookler and Triplett are members of Sub-Classes 2, 3 and 4.
                                           4
       RadioShack then filed notice of removal of the action from state to federal court.
According to RadioShack’s notice, the district court had original jurisdiction over the
matter under the Class Action Fairness Act (CAFA; 28 U.S.C. § 1332(d)(2)(A)) because
the second amended complaint was filed after CAFA’s February 18, 2005 effective date.
RadioShack represented that “a final California judgment has already been entered
against Brookler’s attempts to certify the[] classes [defined in the second amended
complaint,]” and further stated “here, California state law recognizes there has been a
final judgment triggering res judicata.”
       Brookler successfully moved to remand the matter back to the trial court.
       RadioShack then filed a demurrer to the second amended complaint, arguing
Brookler’s claims were barred by the final order denying class certification under Stephen
v. Enterprise Rent-a-Car (1991) 235 Cal.App.3d 806 (Stephen) and Safaie v. Jacuzzi
Whirlpool Bath, Inc. (2011) 192 Cal.App.4th 1160 (Safaie) and the doctrine of res
judicata.
       In opposition, Brookler argued the issue of subclasses was raised in connection
with the prior appeal, citing RadioShack’s own supplemental brief: “Brookler’s main
argument is that even if the Court affirms the order decertifying the class, it should
remand with directions to the superior court to allow Brookler to amend the class
definition, conduct more discovery, and seek certification of the class as modified.”
Brookler argued we had already expressly rejected RadioShack’s argument he should be
precluded from seeking certification of subclasses in our decision in Brookler II so the
demurrer should be overruled.
       After hearing argument on January 16, 2014, the trial court sustained
RadioShack’s demurrer to the second amended complaint without leave to amend, stating
as follows: “Plaintiff unsuccessfully appealed the 2008 decertification of the meal period
class and did not appeal the order denying certification of the rest of the period [sic, rest
period] class. As there can be no rest or meal class, there can be no subclasses. To this

                                              5
extent the demurrer is sustained without leave to amend. Plaintiff’s individual wage
claims remain to be decided.”4
Brookler’s Petition for Writ of Mandate (B254102).
       On February 4, 2014, Brookler filed a petition for writ of mandate (B245102),
seeking to vacate the trial court’s order.
       On February 11, 2014, we issued the following order: “By petition for writ of
mandate, petitioners Morry Brookler and Johnny Triplett challenge the respondent’s
order of January 16, 2014 sustaining real party’s demurrer to petitioners’ second
amended complaint, without leave to amend.
       “The record provided in support of the petition establishes petitioner’s new
complaint properly defines classes not previously considered by the respondent. Under
these circumstances, the respondent was required to overrule real party’s demurrer to the
complaint.
       “In view of the clear legal error apparent in the respondent’s order, and this court’s
determination the matter should be expedited, the parties are notified of our intention to
issue a peremptory writ of mandate in the first instance compelling the respondent to
vacate its order sustaining the demurrer, and to issue a new and different order overruling
the demurrer. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-
183 [(Palma)]; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223.)[ 5]




4      There is no reporter’s transcript of the January 16, 2014 hearing.
5      As our Supreme Court explained in Ng v. Superior Court (1992) 4 Cal.4th 29, 35
(Ng), “[T]he accelerated Palma procedure is the exception; it . . . should be adopted only
when petitioner’s entitlement to relief is so obvious that no purpose could reasonably be
served by plenary consideration of the issue--for example, when such entitlement is
conceded or when there has been clear error under well-settled principles of law and
undisputed facts--or when there is an unusual urgency requiring acceleration of the
normal process.” (Ng, supra, 4 Cal.4th at p. 35, italics added; and see Brown, Winfield &
Canzoneri v. Superior Court (2010) 47 Cal.4th 1233 (Brown, Winfield) [“The California
                                               6
       “The respondent may avoid issuance of a peremptory writ by vacating its order
sustaining the demurrer, and issuing a new order overruling the demurrer. In taking this
action, the respondent shall comply with the requirements outlined in Brown,
Winfield & Canzoneri v. Superior Court (2010) 47 Cal.4th 1233, 1248-1250.
       “If the respondent proceeds as we have suggested, it shall, prior to February 24,
2014, transmit a copy of its new order to this court. In the event respondent does not
vacate its January 16, 2014 order, the real party in interest shall serve and file opposition
to the petition, on or before February 28, 2014, with a view to expeditious disposition of
this matter. (See Ng v. Superior Court (1992) 4 Cal.4th 29, 35.)”
       In Brown, Winfield, supra, 47 Cal.4th 1233, our Supreme Court determined that
“before vacating, modifying, or otherwise reconsidering an interim ruling in response to a
suggestive Palma notice, the trial court must inform the parties that it is considering
taking such action and provide them with an opportunity to be heard.” (Id. at p. 1250.)
       Notwithstanding the order to comply with Brown, Winfield, supra, 47 Cal.4th
1233, 1248-1250, on February 21, 2014, the trial court issued an order vacating its
January 16, 2014 order sustaining RadioShack’s demurrer and overruling the demurrer
instead—without providing RadioShack with notice or the opportunity to be heard.
       Consequently, on February 26, 2014, noting the order was entered “without
compliance with the procedural requirements set forth in Brown, Winfield[, supra,] 47
Cal.4th 1233, 1248-1250,” we issued an order directing the trial court to vacate its
February 21 order and thereafter “proceed to determine whether to comply with this
court’s suggestion in our order of February 11, 2014 following compliance with the
requirements set forth in Brown, Winfield[.]”




Rules of Court specifically authorize an appellate court to notify the parties that it is
considering issuance of a peremptory writ in the first instance without requesting
preliminary opposition or waiting for a reply. (Rule 8.487(a)(4).)]”.)
                                             7
       On March 11, 2014, the trial court entered an order vacating its prior orders
sustaining and then overruling RadioShack’s demurrer to the second amended complaint
and scheduled a hearing “for reconsideration of said order sustaining the
demurrer . . . without leave to amend for April 22, 2014,” specifying a further briefing
schedule.
       On March 12, 2014, noting the trial court had vacated its prior orders and
scheduled a hearing on RadioShack’s demurrer to the second amended complaint, we
dismissed Brookler’s petition for writ of mandate as moot.6
       In further briefing, RadioShack reiterated its argument that the “death knell”
doctrine foreclosed Brookler’s attempt to define new subclasses and further argued
Brookler had “admitted” in federal court that the causes of action alleged in the second
amended complaint were the same causes of action alleged in his prior complaint. While
Brookler relied on the text of our decision in Brookler II, RadioShack argued we had
failed to understand the rule of finality applicable to class definitions.
       Plaintiff’s counsel reminded the trial court the order we issued upon receiving
Brookler’s writ petition stated: “[‘T]he new complaint properly defines classes not
previously considered by the respondent[’] court.” (Italics added.) The problem was that
the trial court had responded by overruling the demurrer without complying with the
procedural requirements of Brown, Winfield.
       RadioShack argued: “[W]hatever the [C]ourt of [A]ppeal actually meant, that [the
trial court must rule on certification of the new subclasses] cannot actually be the right
interpretation because if that is correct, then there is no finality to class actions. It doesn’t
exist because they can continue to tinker with the language of certifications and class


6        In the meantime, the parties agreed to extend the five-year deadline to proceed to
trial to June 15, 2015, with a stay of trial court proceedings until 90 days after the Brown,
Winfield hearing. As stated in our order of July 10, 2014, the five-year deadline for
trying the case has now been extended to April 2016 in conjunction with a stay of all trial
court proceedings until this appeal has concluded.
                                                8
definitions forever.” According to RadioShack, the trial court should “let this case
proceed by appeal” so that this court “could actually get input from RadioShack. We
could have a fulsome argument about it, and then the court could issue a written opinion,
a full opinion explaining what its reasoning is.” RadioShack argued the trial court had
“gotten it right” when it sustained RadioShack’s demurrer without leave to amend.
       Relying on Brookler II and our initial order in response to Brookler’s writ petition,
Brookler’s counsel argued RadioShack had already lost the argument it was attempting to
reassert.
       The trial court then sustained RadioShack’s demurrer without leave to amend once
again, concluding “the message there is simply to rule. . . . There is no reading of the
bones . . . . [RadioShack’s counsel] is virtually saying we are going back to the Court of
Appeal anyway, I guess.”
       Brookler appeals.
                                        DISCUSSION
Our decision in Brookler II expressly recognized Brookler’s entitlement to bring a new
class certification motion on remand.
       Resolution of this appeal is compelled by basic principles. “The denial of
certification to an entire class is an appealable order.” (Linder v. Thrifty Oil Co. (2000)
23 Cal.4th 429, 435.) This is so because such an order “virtually demolishe[s] the action
as a class action. If the propriety of such disposition could not now be reviewed, it can
never be reviewed.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 699.)
       Here, Brookler timely appealed from the trial court’s order granting RadioShack’s
motion for decertification, and this order was the order at issue in Brookler I and then
Brookler II. In connection with his appeal from the order granting decertification,
Brookler raised the issue of subclasses.7 In the parties’ supplemental briefing in Brookler


7      Indeed, as we noted in our prior opinion: “In opposition to RadioShack’s motion
to decertify the class, Brookler says, he urged the trial court that he should be permitted
                                              9
II, Brookler argued certification of subclasses was appropriate while RadioShack argued
Brookler should be precluded from seeking certification of subclasses. In our decision in
Brookler II, we specifically rejected RadioShack’s argument, stating: “None of the
proceedings on appeal, either the initial appeal or this proceeding after remand from the
Supreme Court, addresses the issue of subclasses or bars the trial court from considering
that issue on remand.” (Italics added.)
       Thus, upon the resumption of proceedings in the trial court, Brookler was entitled
to bring a new motion for class certification with respect to the newly identified
subclasses defined in his second amended complaint, consistent with Brookler II and
Brinker, supra, 53 Cal.4th 1004. “There is no question that our statements [in Brookler
II] were intended to guide the trial court on remand,” (Lucky United Properties
Investment, Inc. v. Lee (2013) 213 Cal.App.4th 635, 654), when the issue of whether
Brookler could proceed with a motion for certification of his proposed subclasses was
almost certain to arise. (Id. [“‘application of the law of the case doctrine is appropriate
where an issue presented and decided in a prior appeal, even if not essential to the
appellate disposition, “was proper as a guide to the court below on [remand],”
[Citation.]’”]; see also 9 Witkin, California Procedure (5th ed. 2008) Appeal, § 475.) The
trial court’s order sustaining RadioShack’s demurrer to the second amended complaint
without leave to amend constitutes a refusal to consider further certification proceedings
and is therefore reversible error. (See Hampton v. Superior Court (1952) 38 Cal.2d 652,
655 [“The trial court is empowered to act only in accordance with the direction of the
reviewing court; action which does not conform to those directions is void”].)




to bring a certification motion for two subclasses, but the trial court said potential
subclasses were not before the court at that time (and Brookler was not permitted to
conduct further discovery as a stay was in place).”

                                             10
RadioShack’s Reliance on the “Stephen/Safaie Finality Bar” Is Misplaced.
       In Stephen v. Enterprise Rent-a-Car (1991) 235 Cal.App.3d 806 (Stephen), the
court held a party had no right to bring a renewed motion to certify a class after the trial
court had denied the earlier motion and the time for appeal had passed. (Id. at p. 811.)
The trial court had entered an order denying the plaintiff's initial motion for class
certification. (Id. at pp. 809-810.) The plaintiff did not appeal, and the order became
final. (Id. at p. 810.) Later, the plaintiff filed another motion for class certification based
on asserted new facts relevant to the class issues. (Ibid.) The defendant opposed the
motion as untimely and not based on new facts. (Ibid.) The trial court denied the motion
as untimely, and the plaintiff appealed. (Ibid.)
       In affirming the trial court’s order, the Stephen court reasoned the plaintiff's
attempt to renew his class certification motion was “directly at odds” with California’s
rule providing that a denial of class certification is appealable as a final order. (Stephen,
supra, 235 Cal.App.3d at pp. 809, 814.) As the court explained, an order denying class
certification is appealable because the order has the “death knell” effect of making further
proceedings in the action impractical; a plaintiff who fails to appeal from such an order
“loses forever” the right to attack it; and therefore a motion to recertify a class is
tantamount to an improper and untimely challenge to a final order. (Id. at p. 811.)
Stephen observed “[i]f the law allowed both those appeals and successive motions to
certify, we could have endless appeals violating the state’s policy against piecemeal
appellate litigation.” (Id. at p. 814.)
       Similarly, in Safaie v. Jacuzzi Whirlpool Bath, Inc. (2011) 192 Cal.App.4th 1160
(Safaie), the plaintiff appealed an order denying his motion to recertify a class of
individuals who purchased whirlpool bathtubs from defendant Jacuzzi. The reviewing
court upheld the order, stating “[t]he trial court’s prior June 2007 ruling decertifying the
class, affirmed on appeal in November 2008, barred Safaie from a second opportunity to
seek class certification.” (Id. at p. 1164.)

                                               11
       The determinations in Stephen and Safaie precluding successive motions for class
certification have no application to this case. Brookler did appeal from the trial court’s
order granting decertification, and in connection with his appeal, RadioShack argued
Brookler should not be permitted to proceed with new subclasses in the trial court as he
proposed—an argument we expressly rejected. As our Supreme Court explained in
Brinker, supra, 53 Cal.4th 1004, the ruling in Brinker on the plaintiff’s meal timing
theory “changed the legal landscape.” (Id. at p. 1050.) Because the ruling rendered the
class definition adopted by the trial court in Brinker overinclusive, the “prudent course”
was to remand the question of subclasses to the trial court for reconsideration “in light of
the clarification of the law we have provided.” (Id. at pp. 1050-1051.) Similarly, in this
case, it remains for the trial court to consider the subclasses Brookler has identified in his
second amended complaint in the first instance. (See also Aleman v. Airtouch Cellular
(2012) 209 Cal.App.4th 556, 585 [with regard to order denying class certification without
prejudice, “The court made clear that plaintiffs would be able to bring a new motion”].)
       To be clear, Brookler remains entitled to bring a new motion for class certification
in accordance with Brookler II and Brinker, supra, 53 Cal.4th 1004, in the trial court. As
we observed in Martinez v. Joe’s Crab Shack Holdings (2014) 231 Cal.App.4th 362, 384,
italics added, under Brinker, supra, 53 Cal.4th 1004 and subsequent decisions, “classwide
relief remains the preferred method of resolving wage and hour claims, even those in
which the facts appear to present difficult issues of proof. By refocusing its analysis on
the policies and practices of the employer and the effect those policies and practices have
on the putative class, as well as narrowing the class if appropriate, the trial court may in
fact find class analysis a more efficient and effective means of resolving [the plaintiff’s
claims].”
We Deny Brookler’s Request for Reassignment.
       Citing Code of Civil Procedure section 170.1, subdivision (c), Brookler requests
reassignment of this matter to a new trial judge. This statute provides: “At the request of

                                              12
a party or on its own motion an appellate court shall consider whether in the interests of
justice it should direct that further proceedings be heard before a trial judge other than the
judge whose judgment or order was reviewed by the appellate court.”
       “The power of the appellate court to disqualify a judge under Code of Civil
Procedure section 170.1, subdivision (c), should be exercised sparingly, and only if the
interests of justice require it.” (Hernandez v. Superior Court (2003) 112 Cal.App.4th
285, 303.) “The interests of justice require it, for example, where a reasonable person
might doubt whether the trial judge was impartial [citation], or where the court’s rulings
suggest the ‘whimsical disregard’ of a statutory scheme. [Citation.]” (Ibid.) Although
the trial court erred in its orders, we cannot conclude the trial court’s conduct meets this
standard for disqualification.
                                      DISPOSITION
       The order sustaining RadioShack’s demurrer to Brookler’s second amended
complaint without leave to amend is reversed, and the matter is remanded with directions
to enter a new order overruling RadioShack’s demurrer, to allow Brookler to file a
motion for certification as to the subclasses asserted in the second amended complaint
and to consider that motion on the merits when filed. Brookler is to recover his costs on
appeal.



                                                                               WOODS, J.


We concur:




              PERLUSS, P. J.                                                   ZELON, J.




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