Filed 11/12/13 Certified for publication 12/4/13 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                              DIVISION SEVEN


ROBERTO MARTINEZ et al.,                                            B242807

         Plaintiffs and Appellants,                                 (Los Angeles County
                                                                    Super. Ct. No. BC377269)
         v.

JOE’S CRAB SHACK HOLDINGS et al.,

         Defendants and Respondents.



         APPEAL from an order of the Superior Court of Los Angeles County, Charles F.
Palmer, Judge. Reversed and remanded.
         Righetti Glugoski, Matthew Righetti and John Glugoski, for Plaintiffs and
Appellants, Roberto Martinez, Lisa Saldana, Chanel Rankin-Stephens and Craig Eriksen.
         Epstein Becker & Green, Michael S. Kun and Ted A. Gehring, for Defendants and
Respondents Crab Addison, Inc. and Ignite Restaurant Group, Inc.
         Law Offices of Mary E. Lynch and Mary E. Lynch; Sheppard, Mullin, Richter &
Hampton and Charles F. Barker, for Defendant and Respondent Landry’s
Restaurants, Inc.
                                       _____________________________
       Litigation by class action has long been recognized as a superior method of
resolving wage and hour claims in California (see Brinker Restaurant Corp. v. Superior
Court (2012) 53 Cal.4th 1004, 1033 (Brinker)), including those seeking redress for unpaid
overtime wages. Nonetheless, when confronted with the myriad individual facts asserted
by employers in support of the executive exemption as a defense to a wage claim, courts
at all levels have struggled to answer the question central to certification of a class—that
is, “whether the theory of recovery advanced by the proponents of certification is, as an
analytical matter, likely to prove amenable to class treatment.” (Sav-on Drug Stores, Inc.
v. Superior Court (2004) 34 Cal.4th 319, 327 (Sav-on); accord, Ghazaryan v. Diva
Limousine, Ltd. (2008) 169 Cal.App.4th 1524, 1531.)1 Here, the trial court, after
wrestling with the factual issues raised by Defendants Crab Addison, Inc., Ignite
Restaurant Group, Inc. and Landry’s Restaurants, Inc.,2 denied class certification to a
putative class consisting of managerial employees allegedly misclassified as exempt on
the grounds plaintiffs had failed to establish (a) their claims are typical of the class,
(b) they can adequately represent the class, or (c) common questions predominate the class
claims such that a class action is the superior means of resolving the litigation. (See
Brinker, at p. 1021; Code Civ. Proc. § 382.) We reverse and remand for reconsideration



1
       “The Legislature has commanded that ‘[a]ny work in excess of eight hours in one
workday and any work in excess of 40 hours in any one workweek . . . shall be
compensated at the rate of no less than one and one-half times the regular rate of pay for
an employee.’ (Lab. Code, § 510, subd. (a).) The Industrial Welfare Commission
(IWC), however, is statutorily authorized to ‘establish exemptions from the requirement
that an overtime rate of compensation be paid . . . for executive, administrative, and
professional employees, provided [inter alia] that the employee is primarily engaged in
duties that meet the test of the exemption, [and] customarily and regularly exercises
discretion and independent judgment in performing those duties . . . .’ (Id., § 515,
subd. (a).)” (Sav-on, supra, 34 Cal.4th at p. 324.)
2
        Until November 2006 Joe’s Crab Shack, a nationwide restaurant chain, was owned
by Landry’s Restaurants, Inc. (Landry’s). The chain is now owned by Crab Addison,
Inc., a subsidiary of Ignite Restaurant Group, Inc. (collectively CAI). CAI was sued
erroneously under its former name, Joe’s Crab Shack Holdings.

                                               2
in light of our recent decision in Benton v. Telecom Network Specialists, Inc. (2013)
220 Cal.App.4th 701 (Benton) and our discussion below.
                   FACTUAL AND PROCEDURAL BACKGROUND
         Roberto Martinez, Lisa Saldana, Craig Eriksen and Chanel Rankin-Stephens are
current or former employees of different Joe’s Crab Shack (JCS) restaurants in
California. Martinez filed the original complaint in September 2007, seeking to represent
a class of salaried managerial employees who worked at JCS restaurants in California on
claims they had been misclassified as exempt employees and were entitled to overtime
pay.3 In March 2010 the trial court denied Martinez’s motion for class certification on
the ground he was not an adequate class representative. Martinez did not appeal that
order.
         The trial court permitted Saldana, Eriksen and Rankin-Stephens to join the lawsuit
as named plaintiffs. In June 2011 plaintiffs moved for certification of a class consisting
of “[a]ll persons employed by Defendants in California as a salaried restaurant employee
in a Joe’s Crab Shack restaurant at any time since September 7, 2003.” In support of
their motion plaintiffs presented training and operations manuals, as well as deposition
testimony from various witnesses employed by CAI and Landry’s. According to this
evidence, JCS’s hiring and training practices are uniform throughout the chain; it utilizes
an operations manual that applies to all restaurants and every employee; each restaurant
offers the same menu; and managerial employees are evaluated using the same form and
procedure. All managerial employees are classified as exempt employees and are
expected to work a minimum of 50 hours per week.4 Each restaurant is staffed with three

3
      The complaint also alleged meal period, rest period and wage statement claims,
none of which is an issue in this appeal.
4
       Both CAI and Landry’s categorized managerial employees as exempt under Wage
Order 5, promulgated by the IWC. IWC orders “regulate wages, work hours, and
working conditions with respect to various industries and occupations.” (Singh v.
Superior Court (2006) 140 Cal.App.4th 387, 393.) Wage Order 5 is codified at
California Code of Regulations, title 8, section 11050 (see Singh, at pp. 393-394) and
governs the “Public Housekeeping Industry,” which includes restaurants. (Cal. Code
Regs., tit. 8, § 11050, subds. 1 & 2(P)(1).) Wage Order 5 requires employers to provide

                                              3
to seven managerial employees, who are cross-trained in positions throughout the
restaurant and perform the same general tasks.5
       Plaintiffs also filed 22 declarations from current and former salaried employees
who held managerial positions during the relevant time period.6 The gist of these
declarations is the same. Most of the declarants were employed in assistant managerial
positions. Although they were told they would be working 50 to 55 hours per week, all
stated they had routinely worked more than 55 hours per week; and some reported
working more than 70 hours per week. JCS did not keep track of the hours worked by


overtime pay (id., subd. 3(A)) but exempts from this requirement “persons employed in
. . . [¶] . . . executive . . . capacities.” (id., subd. 1(B).) “‘“A person employed in an
executive capacity means any employee: [¶] . . . [¶] (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 . . . ; and [¶] (d) Who customarily and
regularly exercises discretion and independent judgment; and [¶] (e) Who is primarily
engaged in duties which meet the test of the exemption.” (Id., subd. 1(B)(1).)
      The parties agree the executive exemption exception applies only if employees
spend more than half their working time engaged in exempt work.
5
        During the period the chain was owned by Landry’s, each restaurant was staffed
with a general manager, an assistant manager, a kitchen manager and a front-end
manager. Soon after this lawsuit was filed, CAI eliminated the specific positions of
kitchen manager and front-end manager and categorized them as assistant managers.
CAI’s designated person most knowledgeable about JCS managerial practices (see Code
Civ. Proc., § 2025.230), Michael Young, testified that “all restaurants do universal
tasks. . . . [Employees] wash dishes, they serve food, they help guests. It’s all basically
the same. However, each restaurant is different . . . ; depending on what’s going on in the
course of a day. How many people you have. Skill level of people.” Asked to
distinguish between tasks performed by hourly employees from the same tasks performed
by managerial employees, Young stated, “Managers . . . help out in various positions.
They may perform the same tasks, but it doesn’t make it an hourly function at that time.
If they’re performing their job based on where they need to be at a specific time[;] they’re
using their judgment to assess where they need to be and what they’re doing at that
specific time.”
6
       As of the date the motion was filed, the parties agreed there were 182 members of
the putative class.

                                             4
managerial employees. Because labor budgets were set by district or regional managers
and, in general, did not provide adequate staffing, managerial employees were required to
perform “utility” functions, filling in where needed as cooks, servers, bussers, hosts,
stockers, bartenders or kitchen staff. Managerial employees were also required to fill in
when hourly employees failed to show up and conduct inventory one night a week after
the restaurant closed, which could take as long as three to four hours to complete. As a
result, the declarants stated they had worked extended time in positions ordinarily
occupied by hourly employees but had received no overtime compensation for those
tasks. Each of the declarants estimated he or she had spent the majority of their time
performing hourly tasks; estimates ranged from more than 50 percent to 95 percent.
Several employees, some of whom had worked in more than one restaurant or under both
Landry’s and CAI ownership, stated that these practices were common across the board.7
       CAI and Landry submitted declarations from approximately 27 putative class
members, each of whom reported significant variance among the duties associated with
specific management positions, the amount of time they routinely spent on particular
tasks and the total amount of time worked each week. More than half of the declarations

7
        For instance, a former JCS employee (Brian Brinson), who first worked as an
hourly kitchen worker in a Virginia JCS location, moved to California and worked in
three different JCS locations as an hourly kitchen supervisor and as a salaried kitchen
manager and senior kitchen manager. As a salaried manager Brinson averaged 60 to70
hours per week, including weekly inventory that continued into the early hours of the
morning. He estimated he spent 80-90 percent of his time performing the same tasks as
the hourly employees—seating, bartending, running food, bussing tables, serving food,
cleaning and cooking. His managerial duties took little time to complete. Based on his
experience in both capacities he stated: “I can honestly say that when I moved into a
managerial position my tasks remained the same and I did the same things I did when I
was an hourly employee . . . . I felt like I was every position rolled into one. At Joe’s,
things are done this way and I often needed to fill in wherever I was needed. In addition,
often we would have to cut back on labor and send some of our hourly employees
home[;] this meant even more time on hourly tasks. Further, if I needed to cover
employee shifts I would often work a double shift.” Brinson stated his job required him
to act in a “utility” capacity and that, because managers did not count against the labor
budget, managers were required to perform the tasks of hourly employees, who would
have had to be paid overtime.

                                             5
were provided by general managers, most of whom had served in subordinate managerial
positions in the past.8 Many of the declarants had been hired when Landry’s owned the
chain and had signed acknowledgements of the duties associated with their job and their
exempt status.9 These declarants uniformly described their duties as primarily
managerial in nature and, with only a couple of exceptions, opted out of the putative class
proposed by plaintiffs.10 Many declarants estimated the amount of time they spent
weekly performing discrete “primary” (that is, managerial) duties and “additional” (that
is, nonexempt) duties and stated that, even when they were performing tasks ordinarily
associated with hourly workers, they were monitoring the restaurant and supervising and
directing employees.11 James Kuhn, a senior vice president with CAI who oversees the

8
        Damian Garcia, a general manager, had also worked as an assistant general
manager and a kitchen manager. He stated the total amount of time he spent on exempt
activities varied depending on his position. As a general manager he spent five hours per
week training employees but as a kitchen manager spent 10 to 15 hours each week
training employees. He spent less time directing work as a kitchen manager and spent
more time in that role as an assistant general manager. As a general manager he spent
five hours per week analyzing and forecasting sales but had no such duty as a kitchen
manager.
9
       In 2005 Landry’s directed its general managers to meet with salaried employees to
review their duties and execute acknowledgements the majority of the employees’ time
was spent on exempt tasks. There is no evidence in the record CAI ever trained or
instructed managerial employees regarding the distinction between exempt and
nonexempt duties.
10
       According to CAI, more than 90 putative class members have settled potential
claims with CAI and Landry’s directly although the record includes only 10 of these
settlement agreements. CAI obtained these releases by reading a prepared script to
managerial employees that inadequately explained the claims and offering a $500
payment for each year employed as a manager (or approximately $10 per week). Three
other employees, including Kevin Austin, a former general manager who provided a
declaration on behalf of CAI in this litigation in 2008, settled their claims through the
Division of Labor Standards Enforcement. The settlement amounts that have not been
redacted (eight of 13 agreements) range from $250 to $5,000.
11
       Primary duties included interviewing, hiring and training employees, scheduling,
planning and making job assignments, directing employees, evaluating performance,
determining what needed to be purchased for the restaurant, disciplining employees,
analyzing and forecasting sales, inventory preparation and analysis, communicating about

                                             6
13 California JCS restaurants, stated the activities of managerial employees differed
based on the sales volume, seating capacity, amenities and staffing of the particular
restaurant, no two of which are the same. While CAI centralized management makes
policy decisions affecting JCS restaurants across the board, “the day-to-day decision-
making and daily running of the restaurants is left to each restaurant’s management
team.”
         CAI and Landry’s also submitted evidence impeaching the statements of the
named plaintiffs. In deposition testimony the named plaintiffs each conceded he or she
was unable to estimate the amount of time spent on exempt tasks as opposed to
nonexempt tasks and that every day was different. Eriksen testified it would be
“unrealistic” to guess how much time he spent on particular tasks and admitted there
were weeks when he devoted more than 50 percent of his time to managerial tasks.12
Former colleagues of Saldana and Martinez also contradicted statements each had made
in declarations concerning hours worked and the time spent on hourly tasks.13
         Presented with this evidence, the trial court denied the motion for class
certification on the grounds plaintiffs had failed to establish (1) their claims were typical
of the class, (2) they could adequately represent the class, (3) common questions


corporate matters and transitioning assistant managers and staff. Additional duties
included interaction with guests, cooking, food service, bartending, bussing tables,
expediting orders, taking inventory, checking and replenishing stock, routine clerical
duties, hands-on maintenance and cleaning. Most declarants estimated approximately
one-third of their time (varying between 55 and 70 hours per week) was spent on
additional duties.
12
        Eriksen is also one of the employees who executed a form provided to him by
Landry’s in 2005 attesting he spent 74.5 percent of his time in managerial functions. The
trial court sustained an objection to contradictory statements contained in his declaration
based on this inconsistency. Rankin-Stephens executed a similar form in 2006
acknowledging she spent 67.3 percent of her time on managerial functions.
13
        Martinez’s performance evaluations criticized him for failing to supervise or
discipline staff or otherwise act in a managerial function. Saldana’s evaluations praised
her attitude but encouraged her to think more broadly about her job. There is evidence
that Saldana was ultimately terminated for altering time reports.

                                               7
predominated the claims, and (4) a class action is the superior means of resolving the
litigation. The first two findings were based on plaintiffs’ inability to estimate the
number of hours spent on individual exempt and nonexempt tasks and their admission the
amount of time spent on particular tasks varied from day to day. As to the third and
fourth findings, the court acknowledged the existence of common questions of law and
fact,14 but concluded there remained significant individual disputed issues of fact relating
to the amount of time spent by individual class members on particular tasks. The
variability among individual members of the putative class would require adjudication of
the affirmative defense of exemption for each class member, “a time- and resource-
consuming process.” The court rejected as unfair plaintiffs’ proffered trial plan, under
which their expert, Richard Drogin, proposed to assess the rate at which managerial
employees are engaged in nonexempt tasks through statistical sampling methods. (See In
re Wells Fargo Home Mortgage Overtime Pay Litigation (N.D.Cal. 2010) 268 F.R.D.
604, 612 [“Assume that the court permitted proof through random sampling of class
members, and that the data, in fact, indicated that one out of every ten [class members] is
exempt. How would the finder of fact separate the one exempt [class member] from the
nine nonexempt [class members] without resorting to individual mini-trials.”].) 15 Under
these circumstances, the court concluded, a class action would not be the superior means
of resolving the litigation.
                                       DISCUSSION
       1. The Standard of Review for a Ruling on Class Certification
       Class actions are statutorily authorized “when the question is one of a common or
general interest, of many persons, or when the parties are numerous, and it is
impracticable to bring them all before the court . . . .” (Code Civ. Proc., § 382.) The

14
      The court found that all putative class members perform similar duties and
responsibilities pursuant to a finite task list.
15
        The Supreme Court has granted review of a decision heavily relied upon by the
trial court in denying class certification. (See Duran v. U.S. Bank National Assn. (2012)
203 Cal.App.4th 212, review granted May 16, 2012, S200923.) One of the issues
presented in Duran is the validity of using statistical surveys to establish liability.

                                              8
party seeking class certification must establish (1) “the existence of an ascertainable and
sufficiently numerous class”; (2) “a well-defined community of interest”; and
(3) “substantial benefits from certification that render proceeding as a class superior to
the alternatives.” (Brinker, supra, 53 Cal.4th at p. 1021.) The community of interest
requirement in turn requires three additional inquiries: (1) whether common questions of
law or fact predominate; (2) whether the class representatives have claims or defenses
typical of the class; and (3) whether the class representatives can adequately represent the
class. (Ibid.)
       “The certification question is ‘essentially a procedural one’” (Sav-on, supra,
34 Cal.4th at p. 326) that examines “whether the theory of recovery advanced by the
proponents of certification is, as an analytical matter, likely to prove amenable to class
treatment” (id. at p. 327). A certification motion “‘does not ask whether an action is
legally or factually meritorious’ [citation],” but rather whether the common issues it
presents “‘are so numerous or substantial that the maintenance of a class action would be
advantageous to the judicial process and to the litigants.’” (Id. at p. 326; see Mora v. Big
Lots Stores, Inc. (2011) 194 Cal.App.4th 496, 507 [“the central issue in a class
certification motion is whether the questions that will arise in the action are common or
individual, not plaintiffs’ likelihood of success on the merits of their claims”].) The court
must assume the class claims have merit and resolve disputes regarding the claims’
merits only when necessary to determine whether an element for class certification is
satisfied. (Brinker, supra, 53 Cal.4th at pp. 1023-1025.) “‘As a general rule if the
defendant’s liability can be determined by facts common to all members of the class, a
class will be certified even if the members must individually prove their damages.’” (Id.
at pp. 1021-1022; see also Sav-on, at p. 334 [“‘the necessity for class members to
individually establish eligibility and damages does not mean individual fact questions
predominate’”].)
       A trial court is generally afforded great latitude in granting or denying class
certification, and we normally review a ruling on certification for an abuse of discretion.
(Sav-on, supra, 34 Cal.4th at pp. 326-327; see Brinker, supra, 53 Cal.4th at p. 1022

                                              9
[“‘[b]ecause trial courts are ideally situated to evaluate the efficiencies and practicalities
of permitting group action, they are afforded great discretion in granting or denying
certification’”].) This deferential standard of review, however, is inapplicable if the trial
court has evaluated class certification using improper criteria or an incorrect legal
analysis: “[A] trial court ruling supported by substantial evidence generally will not be
disturbed ‘unless (1) improper criteria were used [citation]; or (2) erroneous legal
assumptions were made.’” (Sav-on, at pp. 326-327; accord, Fireside Bank v. Superior
Court (2007) 40 Cal.4th 1069, 1089; Ghazaryan v. Diva Limousine, Ltd., supra,
169 Cal.App.4th at p. 1530.) In conducting our review, we “‘must examine the trial
court’s reasons for denying class certification.’ [Citation.] . . . [We] ‘consider only the
reasons cited by the trial court for the denial, and ignore other reasons that might support
denial.’” (Jaimez v. Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286, 1297-1298; accord,
Benton, supra, 220 Cal.App.4th at p. 716.)
       2. The Class Is Adequately Represented by Plaintiffs, Whose Claims Are Typical
          of the Class
       Although the questions whether a plaintiff has claims typical of the class and will
be able to adequately represent the class members are related, they are not synonymous.
The typicality requirement’s purpose “‘is to assure that the interest of the named
representative aligns with the interests of the class. [Citation.] “‘Typicality refers to the
nature of the claim or defense of the class representative, and not to the specific facts
from which it arose or the relief sought.’” [Citations.] The test of typicality “is whether
other members have the same or similar injury, whether the action is based on conduct
which is not unique to the named plaintiffs, and whether other class members have been
injured by the same course of conduct.”’” (Seastrom v. Neways, Inc. (2007)
149 Cal.App.4th 1496, 1502.) A class representative who does not have a claim against
the defendants cannot satisfy the typicality requirement. (Medrazo v. Honda of North
Hollywood (2008) 166 Cal.App.4th 89, 98.)
       “The adequacy of representation component of the community of interest
requirement for class certification comes into play when the party opposing certification


                                              10
brings forth evidence indicating widespread antagonism to the class suit.” (Capitol
People First v. State Dept. of Developmental Services (2007) 155 Cal.App.4th 676, 696;
see J.P. Morgan & Co., Inc. v. Superior Court (2003) 113 Cal.App.4th 195, 212 [“‘[t]he
adequacy inquiry . . . serves to uncover conflicts of interest between named parties and
the class they seek to represent’”].) “To resolve the adequacy question the court ‘will
evaluate “the seriousness and extent of conflicts involved compared to the importance of
issues uniting the class; the alternatives to class representation available; the procedures
available to limit and prevent unfairness; and any other facts bearing on the fairness with
which the absent class member is represented.”’” (Capitol People First, at p. 697,
quoting J.P. Morgan & Co., at p. 213.) A party’s claim of representative status will only
be defeated by a conflict that “‘goes to the very subject matter of the litigation . . . .’”
(Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470.)
       Citing the identical rationale for finding plaintiffs’ claims were not typical of the
class and, consequently, they would not be adequate class representatives, the trial court
stated plaintiffs’ claims would be “vulnerable to the defense that each of them performed
exempt tasks more than 50% of their work time. This contrasts with the putative class
members who [allegedly] spent more than 50% of their work time performing non-
exempt tasks.”
       With respect to typicality, this analysis suffers from an overly focused
examination of the facts that looked toward individual differences rather than
commonality. In essence, the trial court resolved the factual conflict between plaintiffs’
declarations, in which they stated nonexempt tasks routinely occupied more than
50 percent of their time, and their deposition testimony that they could not estimate the
number of hours they spent on individual tasks because those tasks varied day to day.
The inability of the witnesses to specify time spent on particular tasks is hardly
surprising, however, and does not create an issue that must be resolved on a motion for
class certification. What was common to plaintiffs, in addition to the standard policies
implemented by CAI at each of their restaurants, were their assertions their tasks did not
change once they became managers; they performed a utility function and routinely filled

                                               11
in for hourly workers in performing nonexempt tasks; and they worked far in excess of
40 hours per week without being paid overtime wages. Their claims—and the defense of
executive exemption to those claims—are thus typical of the class. (See Sav-on, supra,
34 Cal.4th at pp. 336-337.)16
       The larger problem with the adequacy of plaintiffs to represent the class as defined
arises from the antagonism voiced by general managers, who overwhelmingly opposed
the litigation. Again, this conflict is not unexpected: A general manager is hardly likely
to share the duties of assistant managers, many of whom worked exclusively as kitchen-
or front-managers. CAI stresses the fact that JCS restaurants vary in size and volume and
were staffed according to need by three to seven managers. It is not hard to conceive that
the lower the rung occupied by a particular manager the more likely he or she is to
engage in tasks common to the hourly employee. This apparent conflict, however, is not
fatal. In the interest of preserving the claims of subordinate managerial employees, the
trial court may on remand exercise its discretion to create a general managers subclass or
to exclude general managers entirely from the class definition. (See, e.g., Richmond v.
Dart Industries, Inc., supra, 29 Cal.3d at pp. 470-471 [class action need not be dismissed
when trial court can use subclasses to remove any antagonism among members of the
putative class]; Medrazo v. Honda of North Hollywood, supra, 166 Cal.App.4th at p. 99
[when class representative’s “‘“interests are antagonistic to or in conflict with the
objectives of those [s]he purports to represent’” [citation], . . . court should determine if it
would be feasible to divide the class into subclasses to eliminate the conflict and allow
the class action to be maintained”]; Capitol People First v. State Dept. of Developmental
Services, supra, 155 Cal.App.4th at p. 697 [“where factual circumstances differ, or class
members disagree as to the proper theory of liability, the trial judge, through resort to
subclasses, intervention, and the like, may incorporate class differences into the litigation
process and afford all members their due in deciding the proper outcome”]; Aguiar v.

16
        The inquiry into typicality necessarily requires the issues to be framed with
attention to the commonality between plaintiffs and the putative class, rather than the
individual differences among them. (See fn. 19, below.)

                                              12
Cintas Corp. No. 2 (2006) 144 Cal.App.4th 121, 133 [“[t]he use of subclasses is an
appropriate device to facilitate class treatment”].)17
       3. The Trial Court Failed To Assess Means by Which Plaintiffs’ Theory of
          Recovery Could Be Proved Through Resolution of Common Questions of Fact
          and Law
       In Benton, supra, 220 Cal.App.4th 701, we considered whether a proposed class of
cell-phone tower technicians asserting meal and rest break violations and failure to pay
overtime could establish the employer’s liability through common proof.18 We based our
analysis on the Supreme Court’s decision in Brinker, supra, 53 Cal.4th 1004, in which
the Court granted review “to resolve uncertainties in the handling of wage and hour class
certification motions.” (Id. at p. 1021.) In keeping with the Court’s rationale in Brinker,
we reversed the trial court’s order denying class certification because we concluded
individual issues of proof did not predominate over common issues in assessing whether
the defendants’ meal period and rest break policies were valid under California law. (See
Benton, at pp. 725-726.) Quoting another post-Brinker decision (Faulkinbury v. Boyd &
Associates (2013) 216 Cal.App.4th 220), we stated, “‘the employer’s liability arises by


17
        The trial court did not identify any additional basis for its findings on typicality
and adequacy, but the record contains evidence Martinez received overtime wages during
a portion of the period he alleges he was a salaried manager and Saldana was terminated
for altering time records. On remand the court may consider whether this evidence
compromises the ability of either plaintiff to represent the class. (See Seastrom v.
Neways, Inc., supra, 149 Cal.App.4th at p. 1502 [“named plaintiff’s motion for class
certification should not be granted if ‘there is a danger that absent class members will
suffer if their representation is preoccupied with defenses unique to it’”].)
18
        In Benton the employer, Telecom Network Specialists (TNS), provided personnel
services to the telecommunications industry and either hired employees directly or
retained them through staffing agencies. Plaintiff, a contractor technician, alleged TNS
had failed to ensure its staffing agencies complied with wage and hour laws and sought to
certify a class of contractor technicians. The complaint alleged there were “‘numerous
questions of law and fact common to the [class],’ including, in part: ‘[w]hether TNS was
the employer of the [c]lass [m]embers’; ‘[w]hether TNS provided meal [and rest] breaks
in accordance with California law’; and ‘[w]hether the [c]lass [m]embers were denied
premium wages for overtime worked in violation of California law.’” (Benton, supra,
220 Cal.App.4th at pp. 706.)

                                              13
adopting a uniform policy that violates the wage and hour laws. Whether or not the
employee was able to take the required break goes to damages, and “[t]he fact that
individual [employees] may have different damages does not require denial of the class
certification motion.”’” (Benton, at p. 726, quoting Faulkinbury, at p. 235; see also
Bradley v. Networkers Internat. LLC (2012) 211 Cal.App.4th 1129, 1151 (Bradley)
[“[u]nder the logic of [Brinker], when an employer has not authorized and not provided
legally required meal and/or rest breaks, the employer has violated the law and the fact
that an employee may have actually taken a break or was able to [take a break] during the
workday does not show that individual issues will predominate in the litigation”].)
       We extended this rationale to the claim for overtime compensation. We reasoned
the trial court had “failed to evaluate whether plaintiffs’ theory of recovery could be
proved (or disproved) through common facts and law” (Benton, supra, 220 Cal.App.4th
at p. 731) and had apparently concluded each technician would be required to make an
“individualized showing that he or she incurred overtime” (ibid.). As we explained,
however, “Those issues . . . relate to the existence and amount of each technician’s
damages.” (Ibid.; see also Bradley, supra, 211 Cal.App.4th at p. 1155 [certification was
proper despite evidence that “the amount of overtime pay damages potentially due each
class member [would] require[] individualized analysis because the number of hours
worked each day was not uniform”].)
       Admittedly, the overtime exemption claim in this case differs from the overtime
claims in Benton and Bradley; nonetheless, it raises similar questions of proof. Rather
than engage in a post hoc calculation for each employee of hours worked in excess of the
mandated 40-hour work week, the factfinder here will ultimately have to decide whether
CAI and Landry properly classified the members of the class as exempt from overtime
pay requirements. Defendants contend this is a question of liability rather than damages
and assert individual mini-trials will be required to establish whether each member of the
class was properly treated as exempt.
       The trial court, however, by accepting defendants’ argument and focusing on the
employer’s affirmative defense of exemption failed to consider Sav-on’s explicit

                                             14
direction on issues of proof in such cases: “Any dispute over ‘how the employee actually
spends his or her time’ [citation] . . . has the potential to generate individual issues. But
considerations such as ‘the employer’s realistic expectations’ [citation] and ‘the actual
overall requirements of the job,’ [citation] are likely to prove susceptible of common
proof.” (Sav-on, supra, 34 Cal.4th at pp. 336-337; see Sotelo v. Medianews Group, Inc.
(2012) 207 Cal.App.4th 639, 654 [“[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”].) Thus, Sav-on instructs courts in overtime exemption cases to
proceed through analysis of the employer’s realistic expectations and classification of
tasks rather than whether the employee can identify in retrospect whether, at a particular
time, he or she was engaged in an exempt or nonexempt task. (Sav-on, at p. 330 [“task
classification is a mixed question of law and fact appropriate for a court to address
separately from calculating the amount of time specific employees actually spend on
specific tasks”].)19 For instance, the Sav-on Court observed the defendant had “allegedly
promulgated exempt job descriptions, but implemented policies and practices that failed

19
        As we explained in Ghazaryan v. Diva Limousine Ltd., supra, 169 Cal.App.4th
1524, “The record before the trial court on the class certification motion established . . .
that individual drivers accumulate gap time at varying rates and utilize that time in
different ways. But the record also reveals Diva dictates to a large extent how drivers use
their on-call time. Diva distributes an official “Chauffeur’s Handbook” to all drivers,
which expressly bars personal use by drivers of Diva’s vehicles (albeit Diva appears to
ignore incidental errands within a geographically proximate area), requires drivers to
respond promptly to dispatch calls and accept trip assignments absent pre-arranged
circumstances, requires drivers to be in full uniform while in or proximate to their
vehicles, and requires drivers to clean and maintain their vehicles during their on-call
time. Those limitations apply across the board to all drivers who have on-call time
during the course of a day. Although individual testimony may be relevant to determine
whether these policies unduly restrict the ability of drivers as a whole to utilize their on-
call time for personal purposes, the legal question to be resolved is not an individual one.
To the contrary, the common legal question remains the overall impact of Diva’s policies
on its drivers, not whether any one driver, through the incidental convenience of having a
home or gym nearby to spend his or her gap time, successfully finds a way to utilize that
time for his or her own purposes.” (Id. at p. 1536, fn. omitted.)

                                              15
to afford its [managerial employees] true managerial discretion, and standardized store
operations so that managers were obliged to spend over 50 percent of their time doing the
same tasks as their subordinates.” (Id. at p. 337.) Indeed, Sav-on recognizes that
focusing on an employee’s ability to individually reconstruct the time spent on particular
tasks improperly shifts the burden of proving the executive exemption from the employer
to the employee. (Id. at pp. 337-338.)20
       The trial court’s failure here to focus on the impact of JCS policies and practices
on its managerial employees essentially shifted the burden of disproving the executive
exemption to plaintiffs. Indeed, although the court recognized the evidence established
the existence of a finite task list that could aid in the identification of common issues
among the putative class members, its analysis effectively omitted any consideration of
this potential class-wide proof.
       A recent decision from our colleagues in Division Two of this court simplifies
this endeavor and illustrates the enormous cost of resolving these claims on an individual,
rather than a class-wide basis. (See Heyen v. Safeway Inc. (2013) 216 Cal.App.4th 795




20
        “Contrary to defendant’s implication, our observation in Ramirez [v. Yosemite
Water Co., Inc. (1999) 20 Cal.4th 785] that whether the employee is an outside
salesperson depends ‘first and foremost, [on] how the employee actually spends his or her
time’ (Ramirez, [at p. 802]) did not create or imply a requirement that courts assess an
employer’s affirmative exemption defense against every class member’s claim before
certifying an overtime class action. [¶] Moreover, defendant’s proposed reading of
Ramirez would require, essentially, that a certification proponent in an overtime class
action prove the entire class was nonexempt whenever a defendant raises the affirmative
defense of exemption. But in Ramirez itself we recognized that ‘the assertion of an
exemption from the overtime laws is considered to be an affirmative defense, and
therefore the employer bears the burden of proving the employee’s exemption.’
[Citations.] Were we to require as a prerequisite to certification that plaintiffs
demonstrate defendant’s classification policy was, as the Court of Appeal put it, either
‘right as to all members of the class or wrong as to all members of the class,’ we
effectively would reverse that burden. Ramirez is no authority for such a requirement,
nor does the logic of predominance require it.” (Sav-on, supra, 34 Cal.4th at pp. 337-
338.)

                                             16
(Heyen).)21 After reviewing analogous regulations for mercantile workers, Heyen
articulated the appropriate manner of evaluating an employer’s duties: “Several general
principles emerge from these regulations. First, work of the same kind performed by a
supervisor’s nonexempt employees generally is ‘nonexempt,’ even when that work is
performed by the supervisor. If such work takes up a large part of a supervisor’s time,
the supervisor likely is a ‘nonexempt’ employee. [Citations.] [¶] Second, the
regulations do not recognize ‘hybrid’ activities—i.e., activities that have both ‘exempt’
and ‘nonexempt’ aspects. Rather, the regulations require that each discrete task be
separately classified as either ‘exempt’ or ‘nonexempt.’ [Citations.] [¶] Third, identical
tasks may be ‘exempt’ or ‘nonexempt’ based on the purpose they serve within the
organization or department. Understanding the manager’s purpose in engaging in such
tasks, or a task’s role in the work of the organization, is critical to the task’s proper
categorization. A task performed because it is ‘helpful in supervising the employees or
contribute[s] to the smooth functioning of the department’ is exempt, even though the
identical task performed for a different, nonmanagerial reason would be nonexempt.
[Citations.] [¶] Finally, in a large retail establishment where the replenishing of stocks
of merchandise on the sales floor ‘is customarily assigned to a nonexempt employee, the
performance of such work by the manager or buyer of the department is nonexempt.’
[Citation.] Similarly, in such a large retail establishment, a manager’s participation in
making sales to customers is nonexempt, unless the sales are made for ‘supervisory
training or demonstration purposes.’” (Id. at pp. 822-823.)
       Applying these principles to the tasks identified by CAI and Landry’s, inventory,
restocking, serving, cooking, bussing tables, cleaning and other tasks ordinarily
performed by nonexempt employees remain nonexempt when performed by a managerial
employee. Likewise, when a managerial employee fills in for a nonexempt employee, the

21
       Like plaintiffs here, Linda Heyen had sought certification of a class of assistant
managers who allegedly had been improperly classified as exempt employees. Her claim
was tried individually after the trial court’s denial of class certification. (Heyen, supra,
216 Cal.App.4th at p. 799.)

                                              17
task remains nonexempt. On the other hand, if the managerial employee is performing
the task for the purpose of supervisory training or demonstration, the task is exempt.
California law does not recognize a hybrid category in which the employee is deemed to
be performing an exempt task at the same time he or she is performing a nonexempt task.
(Heyen, supra, 216 Cal.App.4th at p. 826.)22
       As in Heyen, the gist of plaintiffs’ claim here is that regardless of the patina of
managerial discretion expressed in their job description, they functioned consistently as
utility workers, cross-trained in all tasks, who could be assigned to fill in where needed
without affecting the labor budget or requiring overtime compensation. Assessing
whether modes of proof exist that will allow common resolution of these claims does not
require that we evaluate whether plaintiffs are likely to prevail on those claims. Indeed,
the trial court’s rejection of the statistical evidence proffered by plaintiff’s expert is
essentially flawed because it imputes to that evidence a weight it need not bear. Rather
than constrain a factfinder, such evidence is simply an additional mode of proof of the
essential question whether CAI’s and Landry’s policies exploited subordinate managers.
(Cf. Mora v. Big Lots Stores, Inc., supra, 194 Cal.App.4th at pp. 509-510 [trial court did
not abuse its discretion by considering observational survey proffered by defendants to
refute plaintiff’s theory of misclassification]; see also Bell v. Farmers Ins. Exchange
(2004) 115 Cal.App.4th 715, 750 [statistical sampling in an overtime class action “does
not dispense with proof of damages but rather offers a different method of proof”].)23 In


22
       We recognize, of course, that an inquiry into whether a task is “helpful in
supervising the employees or contribute[s] to the smooth functioning of the department”
is nearly impossible in hindsight. That is true, however, whether the question is raised as
an issue common to a class of employees or in an individual proceeding. The more
accurate question is whether the employer’s realistic expectations and the actual
requirements of the job caused the employees to exercise supervisorial discretion or
instead required them to play the utility role described above.
23
       On remand the court should consider whether plaintiffs’ proposed sampling plan
qualifies as an aid in proof of class-wide liability rather than as a proxy or substitute for
more traditional modes of proof. (See Dailey v. Sears, Roebuck & Co. (2013)
214 Cal.App.4th 974, 998, 1000 [“[w]e have found no case, and [plaintiff] has cited none,

                                               18
other words, even if there were individual managerial employees whose work remained
more than 50 percent managerial in nature, if CAI’s and Landry’s policies as
implemented across California resulted in managerial employees being
undercompensated for performing exempt work, class relief is appropriate.
       4. The Trial Court Must Reconsider Whether Class Certification Provides a
          Superior Method of Resolving Plaintiffs’ Claim
       We have not ignored the substantial case authority, including our own, upholding
trial court decisions not to certify class actions for claims similar to those raised here (see,
e.g., Dailey v. Sears, Roebuck & Co. (2013) 214 Cal.App.4th 974; Mora v. Big Lots
Stores, Inc., supra, 194 Cal.App.4th 496; Arenas v. El Torito Restaurants, Inc. (2010)
183 Cal.App.4th 723); nor do we express any disagreement with the outcome of those
cases. However, we understand from Brinker, supra, 53 Cal.4th 1004, a renewed
direction that class-wide 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 plaintiffs’ overtime claim.




where a court has deemed a mere proposal for statistical sampling to be an adequate
evidentiary substitute for demonstrating the requisite commonality, or suggested that
statistical sampling may be used to manufacture predominate common issues where the
factual record indicates none exist”; “[a] trial court does not err in rejecting a proposed
statistical sampling procedure when the class action proponent fails to ‘explain how the
procedure will effectively manage the issues in question’”].)

                                              19
                                     DISPOSITION
       The order denying class certification is reversed, and the cause is remanded for
proceedings not inconsistent with this opinion. Plaintiffs are to recover their costs on
appeal.



                                                         PERLUSS, P. J.


       We concur:



                     WOODS, J.



                     SEGAL, J.*




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

                                             20
Filed 12/4/13
                                CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SECOND APPELLATE DISTRICT

                                      DIVISION SEVEN


ROBERTO MARTINEZ et al.,                              B242807

        Plaintiffs and Appellants,                    (Los Angeles County
                                                      Super. Ct. No. BC377269)
        v.
                                                          ORDER CERTIFYING OPINION
JOE’S CRAB SHACK HOLDINGS et al.,                         FOR PUBLICATION

        Defendants and Respondents.




        THE COURT:
        The opinion in this case filed November 12, 2013 was not certified for publication. It
appearing the opinion meets the standards for publication specified in California Rules of Court,
rule 8.1105(c), the non-parties’ requests pursuant to California Rules of Court, rule 8.1120(a) for
publication are granted.
        IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c); and
        ORDERED that the words “Not to be Published in the Official Reports” appearing on
page 1 of said opinion be deleted and the opinion herein be published in the Official Reports.




___________________________________________________________________________
      PERLUSS, P. J.          WOODS, J.         SEGAL, J. (Assigned)
