Filed 12/6/13
                            CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SECOND APPELLATE DISTRICT

                                      DIVISION EIGHT


CHRISTOPHER WILLIAMS, on behalf of               B244043
himself and all others similarly situated,
                                                 (Los Angeles County
                       Petitioners,              Super. Ct. No. BC382577)

        v.

THE SUPERIOR COURT OF LOS
ANGELES COUNTY,

                       Respondent;

ALLSTATE INSURANCE COMPANY,

                       Real Party in Interest.


      APPEAL from a judgment of the Superior Court of Los Angeles County.
John Shepard Wiley Jr., Judge. Vacated and remanded with direction.


       Law Offices of Kevin T. Barnes, Kevin T. Barnes and Gregg Lander; Trush Law
Office and James M. Trush, for Petitioner.


        No appearance for Respondent.


      Seyfarth Shaw, Andrew M. Paley, Sheryl L. Skibbe, James M. Harris and Kiran
Aftab Seldon, for Real Party in Interest.

                               __________________________
       Appellant Christopher Williams petitions for a writ of mandate directing the trial
court to vacate its order decertifying appellant’s class action claim that alleged Allstate
Insurance Company failed to pay overtime wages to Allstate’s auto field adjusters. A
writ shall issue forthwith directing the trial court to vacate its decertification order and to
recertify the class.

                              FACTS AND PROCEEDINGS

       Allstate Insurance Company employs several hundred auto field adjusters in
California. Auto field adjusters travel to sites such as body shops to inspect, and analyze
the value of, damaged vehicles. In 2005, Allstate changed the classification of its auto
field adjusters from salaried employees to hourly employees in response to litigation
challenging their misclassification as employees exempt from the protection of overtime
wage laws. (Jimenez v. Allstate Ins. Co. (C.D. Cal. Apr. 18, 2012, No. LA CV 10-08486)
2012 WL 1366052,*4 (Jimenez).)
       Auto field adjusters receive their daily work schedules of vehicle inspection
appointments by logging onto Allstate’s “Work Force Management System” software
loaded onto their work laptops. Although the adjusters are hourly employees entitled to
overtime if they work more than 8 hours a day or 40 hours a week, the Work Force
Management System software is not a time record keeping program, nor does Allstate
maintain any other time clock system.1 An Allstate executive testified in deposition:
“Q. Is there any timekeeping system such as a time clock or a computer punch-in and
punch-out system that auto adjusters punch in and punch out in order to keep track of the

1      In its initially unsuccessful opposition to appellant’s motion for certification,
Allstate wrote the Work Force Management System is not a “timeclock[] and cannot be
used to track when adjusters are performing work-related tasks.” And Allstate’s return to
appellant’s petition for writ of mandate states the Work Force Management System and
related software “does not track hours worked by adjusters, nor does Allstate use it for
this purpose. . . . Log-in information from these software programs cannot answer
whether or how long an adjuster was working, or distinguish between work and personal
use.”

                                               2
start and the end of their day? [¶] A. No timekeeping punch-in, punch out system, no.
[¶] Q. Is there any timekeeping system of any type, whether it’s a time clock, a
computer system or a manual system, that records the actual start time and the actual end
time of the auto adjuster’s workday? . . . [¶] A. No.” Rather than track the actual hours
an adjuster works, the Work Force Management System instead presumes each adjuster’s
eight-hour workday begins when the adjuster arrives at his first vehicle-inspection
appointment of the day. As the Allstate executive explained, “Their day begins at the
first stop.”
       Allstate’s presumption that an adjuster’s workday begins with the first
appointment as set by the Work Force Management System does not take into account
any work the adjuster may have performed before the day’s first appointment. As the
Allstate executive explained in deposition, “Q. The eight-hour workday upon which the
system is based assumes that the eight-hour workday begins at the first appointment,
correct? [¶] A. Yes. . . . [¶] Q. [T]he eight-hour workday upon which the system is
based does not take into account any work that may have been done before the first
appointment; isn’t that right? . . . [¶] A. That’s correct. The system doesn’t take into
account anything that somebody might have done prior to that first assignment.”
       Belying Allstate’s assumption of an 8-hour workday, appellant submitted
declarations from numerous adjusters stating they typically worked more than 8 hours a
day and 40 hours a week after Allstate reclassified them from salaried to hourly
employees. Among the overtime tasks those adjusters declared they performed outside
their eight-hour shifts were (1) logging onto their work computers, (2) downloading their
assignments, (3) making courtesy calls to auto repair shops and car owners to confirm
appointments, (4) checking their voice mail, and (5) traveling to and from their first and
last appointments of the day. For an adjuster to work overtime, Allstate’s official
company policy required the adjuster to get his supervisor’s prior approval. But the
adjusters’ declarations stated the adjusters hesitated to request overtime because they did
not want to be perceived as “bad” employees.


                                             3
       In 2007, appellant Christopher Williams filed a class action complaint for himself
and all others similarly situated. The complaint sought class certification for all Allstate
auto field adjusters working in California, a group of several hundred employees defined
as “all auto adjusters in California that perform field inspections using the Workforce
Management System (‘WFMS’) with the title Claim Adjuster, Senior Claim Adjuster,
Staff Claim Adjuster, Claim Service Adjuster, Senior Claim Service Adjuster, Staff
Claim Service Adjuster, Appraiser, Claim Representative, Claim Specialist and Claim
Consultant.” The complaint alleged Allstate had a policy and practice of not
compensating adjusters for work performed before they arrived at their first vehicle
inspection of the day and for work performed after completing the last inspection of the
day. The complaint alleged various wage violation causes of action.
       Appellant moved for class certification. At the December 2010 class certification
hearing, the trial court found evidence in the record “supports a class of Auto Field
Adjusters with respect to off-the-clock claims . . . that are performed pre-first inspection
and post-last inspection in connection with logging on and off the computer timekeeping
system, including, but not limited to, setting voicemail messages and checking for
schedule and travel changes.” The court therefore certified an “Off the Clock” class,
defined as Allstate’s “California-based hourly-paid Auto Field Adjusters from January 1,
2005 to the present, to the extent that [Allstate] failed to pay for off-the-clock work for
the following specific tasks performed prior to the first inspection of the day: logging on
and off computer systems, preparing and checking voicemail messages, checking for
schedule and travel changes, obtaining directions to the first inspection if there is a travel
change, and making courtesy calls.”2
       Half a year later in June 2011, the United States Supreme Court handed down its
decision in Wal-Mart Stores, Inc. v. Dukes (2011) 131 S.Ct. 2541 (Dukes). Dukes


2     The court also certified a “Wage Statement” class alleging inaccurate wage
statements, and denied certification of “Meal Period” and “Termination Wage” classes.
Those rulings are not at issue here.

                                              4
involved class certification of 1.5 million current and former female Wal-Mart employees
from 3,400 stores who alleged Wal-Mart denied them promotions or pay raises because
of their gender. (Id. at pp. 2547-2548.) The Supreme Court noted that the 1.5 million
nationwide claimants were required to prove that thousands of store managers had the
same discriminatory intent in preferring men over women for promotions and pay raises.
The Supreme Court found the women could not pursue their claims as a class action
because they lacked evidence that they did not receive promotions or pay raises for the
same reason, namely their gender. In reversing class certification, Dukes found that there
was no unifying theory holding together “literally millions of employment decisions.”
(Id. at p. 2552.)
       In a trial court status conference in July 2011 one month after Dukes, the parties
and trial court discussed Dukes. The trial court thereafter permitted Allstate to file a
motion based on Dukes for decertification of the Off-the-Clock class. In its
decertification motion, Allstate emphasized two points from Dukes. First, “there must be
some ‘glue’ holding the class members’ claims together, such that common facts can
resolve the claims for everyone in the class.” And, second, “a trial-by-formula using
statistical sampling is an improper means to try class claims, as it deprives a defendant of
due process by precluding a defendant from proving its individual defenses against each
class member.” Allstate told the trial court, “In light of the U.S. Supreme Court’s
decision in Wal-Mart Stores, Inc. v. Dukes[, supra,] 131 S.Ct. 2541, which the Court
admitted changed the relevant legal landscape for this case, and additional discovery
since the class certification order, it is apparent that the close call on certification must be
reversed.”
       The trial court agreed, and decertified the Off-the-Clock class (as well as a
corresponding Unfair Competition Claim). Relying on Dukes, the trial court’s written
order stated Allstate’s decertification “motion is granted because [Dukes, supra,]
131 S.Ct. 2541 has changed the law.” The trial court concluded that “After Dukes,
Allstate is entitled to litigate its defenses to the claims of each individual class member.”
Allstate’s defenses included purported evidence that not all adjusters worked off the

                                               5
clock, and for that portion of those adjusters who might have worked off the clock, their
time was de minimis. (See Anderson v. Mt. Clemens Pottery Co. (1946) 328 U.S. 680,
692 [“a few seconds or minutes of work beyond the scheduled working hours [are mere]
trifles [and] may be disregarded”].) According to the trial court’s order, a “trial in which
Allstate presents evidence of affirmative defenses to more than 200 individuals would be
unmanageable,” making class certification inappropriate.
       Appellant filed in this court a petition for writ of mandate, which we summarily
denied. Appellant then filed a petition for review by our Supreme Court. Our Supreme
Court granted the petition and returned the matter to us with directions to issue an order
to show cause why the relief sought in appellant’s petition should not be granted. We
issued the order to show cause, received further briefing, and held argument.

                                      DISCUSSION

1.     Legal Principles Governing Class Certification

       “The party advocating class treatment must demonstrate the existence of an
ascertainable and sufficiently numerous class, a well-defined community of interest, and
substantial benefits from certification that render proceeding as a class superior to the
alternatives. [Citations.] ‘In turn, the “community of interest requirement embodies
three factors: (1) predominant common questions of law or fact; (2) class representatives
with claims or defenses typical of the class; and (3) class representatives who can
adequately represent the class.” ’ [Citations.]” (Brinker Restaurant Corp. v. Superior
Court (2012) 53 Cal.4th 1004, 1021 (Brinker).) “A motion to certify a class action is not
a trial on the merits, nor does it function as a motion for summary judgment.” (Carabini
v. Superior Court (1994) 26 Cal.App.4th 239, 245.) Class certification “ ‘is essentially a
procedural [question] that does not ask whether an action is legally or factually
meritorious.’ ” (Brinker at p. 1023.) A certification motion does not invite the trial court
to resolve disputed facts in a free-floating inquiry aimed at deciding the merits of the
plaintiff’s claims. The trial court ordinarily must assume the claims have merit. (Id. at


                                              6
p. 1023 [“resolution of disputes over the merits of a case generally must be postponed
until after class certification has been decided, with the court assuming for purposes of
the certification motion that any claims have merit.”]; Dailey v. Sears, Roebuck and Co.
(2013) 214 Cal.App.4th 974, 990 (Dailey).)
       We review a decertification order for an abuse of discretion. (Brinker, supra,
53 Cal.4th at p. 1022; Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319,
326; Ghazaryan v. Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524, 1530.)
Decertification requires new law or newly discovered evidence showing changed
circumstances. (Weinstat v. Dentsply Internat., Inc. (2010) 180 Cal.App.4th 1213, 1225.)
A motion for decertification is not an opportunity for a disgruntled class defendant to
seek a do-over of its previously unsuccessful opposition to certification. “Modifications
of an original class ruling, including decertifications, typically occur in response to a
significant change in circumstances, and ‘[i]n the absence of materially changed or
clarified circumstances . . . courts should not condone a series of rearguments on the class
issues.’ [Citation.].” (Driver v. AppleIllinois, LLC (N.D. Ill., Mar. 2, 2012, No. 06 C
6149) 2012 WL 689169, *1 (Driver).) “A class should be decertified ‘only where it is
clear there exist changed circumstances making continued class action treatment
improper.’ ” (Green v. Obledo (1981) 29 Cal.3d 126, 147.)
       Decertification resting on improper legal criteria or an incorrect assumption is an
abuse of discretion. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429; see also In re
Tobacco II Cases (2009) 46 Cal.4th 298, 311.) In an exception to a customary rule of
appellate practice, we review the court’s rationale for its order. (The customary rule is to
review the result of the court’s order, not its rationale.) (Weinstat v. Dentsply Internat.,
Inc., supra, 180 Cal.App.4th at pp. 1223-1224; Witkin Proc. (2008) Pleading, § 314,
p. 431.) We thus review only the reasons the court stated for its order, and we reverse if
those reasons do not support the order. (Ramirez v. Balboa Thrift and Loan (2013)
215 Cal.App.4th 765, 776; Jaimez v. Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286,
1297-1298; Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, 1205
[reversal required even when substantial evidence supports the court’s order if the court’s

                                              7
stated reasons do not support the order].) Finally, we may not use the court’s oral
statements to impeach its written order. (Silverado Modjeska Recreation and Park Dist.
v. County of Orange (2011) 197 Cal.App.4th 282, 300-301; Collins v. Hertz Corp. (2006)
144 Cal.App.4th 64, 77-78.)

2.      Dukes’ Discussion of Affirmative Defenses Does Not Support Decertification
        (Dukes, Sec. III at pp. 2557-2561)

     The trial court based its decertification order on Dukes, stating “After Dukes, Allstate
is entitled to litigate its defenses to the claims of each individual class member.”
According to the court, Allstate’s entitlement in the wake of Dukes to individually litigate
its defenses against each adjuster’s Off-the-Clock claims made those claims
unmanageable as a class action. Those defenses included purported evidence that (1) a
particular adjuster did not work off the clock, or if he did, Allstate did not know about it,
and, (2) any time worked off the clock was de minimis.
        The trial court erred in concluding Dukes required decertification. In Dukes, a
nationwide class of 1.5 million current and former female employees from 3,400 stores
sued Wal-Mart, alleging that the company engaged in a pattern or practice of gender
discrimination in violation of Title VII of the Civil Rights Act of 1964. The female
plaintiffs were required to prove that thousands of store managers shared the same
discriminatory animus toward women in denying them promotions and pay raises. The
Supreme Court reversed the district court’s certification order on the grounds that the
plaintiffs could not offer “significant proof that Wal-Mart operated under a general policy
of discrimination.” In reversing class certification, the Court found that there was no
unifying theory holding together “literally millions of employment decisions” that turned
on the subjective intents of thousands of supervisors in thousands of stores to explain for
each class member the “crucial question why was I disfavored” for a promotion or pay
raise. (Italics original.) (Dukes, supra, 131 S.Ct. at p. 2552; see e.g. Espinoza v.
953 Assocs. LLC (S.D.N.Y. 2011) 280 F.R.D. 113, 130 [distinguished Dukes where
“claims were based on the countless subjective decisions made by Wal–Mart’s local

                                               8
supervisors regarding compensation and promotions” from worker’s overtime claims
where workers alleged employer “failed to pay minimum wages and overtime
compensation as a result of certain policies and practices.”]; see also Ross v. RBS
Citizens, N.A. (2012 7th Cir.) 667 F.3d 900, 908-910 judgment vacated and matter
remanded for further reconsideration in light of Comcast Corp. v. Behrend (2013)
133 S.Ct. 14263 [distinguishing Dukes in case involving 1,129 class members who
alleged they were unlawfully denied overtime because of the employer’s “unofficial
policy” which was “the glue holding together [the class members] based on the common
question of whether an unlawful overtime policy prevented employees from collecting
lawfully earned overtime compensation.”].)
       We agree with those courts that have found Dukes distinguishable in comparable
situations. Because Dukes involved federal class action law, our analysis starts briefly
with Rule 23 of the Federal Rules of Civil Procedure (FRCP). Subpart (a) of Rule 23
establishes four requirements for a class action, commonly identified with shorthand
expressions as numerosity, commonality, typicality, and adequacy of representation.
(Dukes, supra, 131 S.Ct. at p. 2550.) Subpart (b) of Rule 23 recognizes three types of
class actions. A proposed class plaintiff must fall under the definition of one of those
three types from subpart (b) in order to proceed as a class action. (See FRCP, Rule
23(b)(1)-(3); Comcast Corp. v. Behrend, supra, 133 S.Ct. at p. 1432; Wang v. Chinese
Daily News, Inc. (2013 9th Cir.) __ F.3d __ [2013 WL 4712728, *2]; Ellis v. Costco
Wholesale Corp. (N.D. Cal. 2012) 285 F.R.D. 492, 535 [“In addition to the threshold
requirements of Rule 23(a), plaintiffs seeking class certification must also satisfy one of
the prongs of Rule 23(b).”].) One type of class action involves injunctive or declaratory
relief that remedies the injury of all class members. Rule 23(b)(2) provides: “A class
action may be maintained if Rule 23(a) [regarding numerosity etc.] is satisfied and if: . . .


3      The Supreme Court’s grant and remand of Ross was not equivalent to a reversal on
the merits. Instead, it permitted the lower court to take into account developments in the
law rendered since the 7th Circuit decided Ross. (Tamas v. Family Video Movie Club,
Ind. (N.D. Ill. Aug. 13, 2013, No. 11 C 1024) 2013 WL 4080649, *6.)
                                             9
(2) the party opposing the class has acted or refused to act on grounds that apply
generally to the class, so that final injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole . . . .” (FRCP Rule 23(b)(2).)
       The portion of Dukes on which the trial court’s decertification order focused was
Dukes’ discussion of prosecution of a Title VII gender discrimination claim under
Rule 23(b)(2). Dukes noted that Rule 23(b)(2) does not apply when a class-wide
injunction will not provide relief to the aggrieved plaintiffs. Dukes explained, “Rule
23(b)(2) applies only when a single injunction or declaratory judgment would provide
relief to each member of the class. It does not authorize class certification when each
individual class member would be entitled to a different injunction or declaratory
judgment against the defendant.” (Italics original.) (Dukes, supra, 131 S.Ct. at p. 2557)4
Nor, Dukes noted, does Rule 23(b)(2) apply where the primary relief sought is
individualized monetary claims. (See e.g. Ries v. Ariz. Bevs. United States LLC, Hornell
Brewing Co. (N.D. Cal. 2012) 287 F.R.D. 523, 541; Ellis v. Costco Wholesale Corp.,
supra, 285 F.R.D. at p. 535.) Dukes held that money damages must be no more than an
incidental component of the class’s claim when the class is proceeding under Rule
23(b)(2). Because the female employees in Dukes were seeking back pay as their
principal form of relief, Dukes held “We . . . conclude that [the female employees’]
claims for backpay were improperly certified under [Rule 23(b)(2)]. Our opinion in [an
earlier case] expressed serious doubt about whether claims for monetary relief may be
certified under [Rule 23(b)(2)]. We now hold that they may not, at least where (as here)
the monetary relief is not incidental to the injunctive or declaratory relief.” (Dukes at
p. 2557.)


4      Dukes observed that a civil rights challenge to racial segregation is a prototypical
example of a Rule 23(b)(2) type case: “ ‘Civil rights cases against parties charged with
unlawful, class-based discrimination are prime examples’ of what (b)(2) is meant to
capture. [Citation.] In particular, the Rule reflects a series of decisions involving
challenges to racial segregation – conduct that was remedied by a single classwide
order.” (Dukes, supra, 131 S.Ct. at pp. 2557-2558.)

                                              10
       Despite the trial court’s turning to Dukes’ analysis of the restrictions on, if not
outright unavailability of, money damages under rule 23(b)(2) to explain the trial court’s
decertification order, appellant was not pursuing a 23(b)(2) type of class action.
Appellant instead sought class certification under California’s class action statute, Code
of Civil Procedure section 382.5 Section 382 is analogous to subpart (a) of Rule 23,
which establishes the four requirements of a class action. (In re Tobacco II Cases (2009)
46 Cal.4th 298, 318.) The trial court’s reliance on Dukes’ analysis of subpart (b)(2) of
Rule 23 – a class action seeking injunctive relief – was thus misplaced because
appellant’s class members here were seeking principally, if not exclusively, monetary
damages, that the federal rules establish is a different type of class action. (Compare
Rule 23(b)(2) with 23(b)(1) and 23(b)(3); Dukes, supra, 131 S.Ct. at p. 2558 [“monetary
claims belong in Rule 23(b)(3)”].) More fundamentally, the concern expressed in Dukes
about the unmanageability of trying 1.5 million claims which depended on proof of the
subjective intents of thousands of individual supervisors is not present here. Appellant
asserts there is a companywide policy to deny overtime pay. The resolution of that issue
does not involve the subjective intents of countless supervisors.
       The Supreme Court’s second area of focus in Part III of Dukes involved the
statutory affirmative defenses in the anti-discrimination statute Title VII. Because the
affirmative defenses were statutory, Dukes concluded a class proceeding could not
deprive Wal-Mart of its right to present those defenses. (Dukes, supra, 131 S.Ct. at
pp. 2560-2561.) As those affirmative defenses required individualized evidence, Dukes
disapproved a “Trial by Formula” of Wal-Mart’s affirmative defenses because it
prevented Wal-Mart from offering its individualized evidence. (Id. at p. 2561.) Under a
“Trial by Formula,” the trial court will accept evidence from a statistically derived

5       Section 382 states: “If the consent of any one who should have been joined as
plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated
in the complaint; and 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, one or more may sue or defend for the benefit of all.”

                                              11
representative subset of several hundred Wal-Mart female employees to determine the
percentage who suffered gender discrimination and to calculate the average back pay of
the women in that subset. The trial court will then conduct several mathematical
operations involving the percentage, the average back pay, and the size of the entire class
to calculate the entire class recovery. The details of that calculation are unimportant here
other than to note that Dukes rejected such an approach. (Id. at p. 2561.) “The [Dukes]
Court rejected this ‘novel project,’ [of Trial by Formula] holding that Wal-Mart was
‘entitled to litigate its statutory defenses’ to the individual claims of each member
seeking backpay.” (In re TFT-LCD (Flat Panel) Antitrust Litigation (N.D. Cal. 2012)
2012 WL 253298, *5.)
       Trial by Formula is a method of calculating damages.6 Damage calculations have
little, if any, relevance at the certification stage before the trial court and parties have
reached the merits of the class claims. At the certification stage, the concern is whether
class members have raised a justiciable question applicable to all class members.
Although Allstate may have presented evidence that its official policies are lawful, “this
showing does not end the inquiry.” (Jimenez, supra, 2012 WL 1366052, *8.) Here, the
question is whether Allstate had a practice of not paying adjusters for off-the-clock time.
(Ibid.) The answer to that question will apply to the entire class of adjusters. If the
answer to that question is “yes” – which is the answer the trial court initially assumed
when it first certified the Off-the-Clock class, and is the answer we must presume in
reviewing decertification (Brinker, supra, 53 Cal.4th at p. 1023) – then, in Duke’s phrase,
that answer is the “glue” that binds all the class members. (Dukes, supra, 131 S.Ct. at
p. 2552 [a class requires the “glue” of a single answer for a question applicable to all
class members].) If some adjusters had more uncompensated time off the clock than
other adjusters, that difference goes to damages. But differences in the amount of

6       California law permits statistical sampling to determine damages. Whether
California permits statistical sampling to prove liability is “more controversial” and is a
question currently before our Supreme Court. (Dailey, supra, 214 Cal.App.4th at p. 998,
fn. 10; See Sav-on Stores v, Inc. v. Superior Court, supra, 34 Cal.4th at pp. 332-333.)

                                               12
individual damages do not by themselves defeat class certification. (Stearns v.
Ticketmaster Corp. (2011) 655 F.3d 1013, 1026; Yokoyama v. Midland Nat’l Life Ins. Co.
(2010) 594 F.3d 1087, 1094; contrast Comcast Corp. v. Behrend, supra, 133 S.Ct. at
pp. 1432-1433 [under federal class action rules, differences in method of calculating
damages arising from individualized damages may defeat certification of class of 2
million subscribers].) “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.” (Brinker at p. 1022.) Indeed, in initially
certifying the Off-the-Clock class, the trial court necessarily rejected Allstate’s argument
that the varying amounts of allegedly unpaid back pay defeated class certification. In
opposing the original certification order, Allstate noted it had “submitted numerous
declarations attesting to the fact that adjusters do not work off the clock. Moreover . . .
testimony proffered by [appellant] varies greatly as to the type of tasks supposedly
performed off the clock; the frequency of this work; and the length of time it took. [¶]
Indeed, [appellant’s] testimony about his alleged off the clock work is dramatically
different from the experience of other adjusters.” Allstate’s argument notwithstanding,
the court’s original certification order found “common issues of law and fact
predominate” for the Off the Clock Class, thereby implicitly rejecting Allstate’s
contention that varying damages defeated class certification. (Accord Jimenez, supra,
2012 WL 1366052, *15 [class plaintiffs’ failure to show statistical sampling was a proper
method of calculating individual damages did not defeat class certification “with respect
to liability” because individualized calculation of damages does not defeat certification].)
       In fact, the federal district court in a companion proceeding against Allstate
involving Allstate’s failure to pay overtime to adjusters other than auto field adjusters has
rejected an argument similar to what Allstate asserts here. In Jimenez, supra, 2012 WL
1366052, 1,300 California-based Allstate claims adjusters assigned to 13 offices
throughout the state filed a federal class action against Allstate in which they alleged
multiple labor violations, including unpaid overtime and wrongful denial of meal and rest
periods. Relevant to our case here, the Jimenez plaintiffs alleged a company-wide policy

                                             13
of discouraging and limiting overtime. In response, Allstate asserted two affirmative
defenses precluded class certification. Allstate asserted it did not “(1) . . . have
constructive or actual knowledge that Plaintiff and other class members were working
off-the-clock; and (2) the amount of unpaid overtime is de minimis.” Finding the
affirmative defenses did not defeat class certification, the federal court explained that
with “respect to [Allstate’s] de minimis defense, it can be addressed through
representative testimony . . . . With respect to whether [Allstate] had actual or
constructive knowledge of the unpaid overtime, the standard of constructive knowledge is
amenable to class treatment. Thus, Plaintiff need not demonstrate that every manager
knew every time an employee worked off-the-clock; instead, Plaintiff can demonstrate
that [Allstate] should have known that its employees were regularly working off-the-
clock as a result of its policies regarding the reporting of overtime, the recording of time
worked by claims adjusters, its insistence on having its supervisory personnel monitor all
requests for overtime, and the position of certain of its managerial personnel about the
need to limit overtime for budgetary or other performance-related reasons. Further, as
discussed above, [Allstate] will have an opportunity to raise these defenses with the
representative witnesses. In sum, when compared to the manner of proof as to common
questions, these defenses do not raise sufficiently individualized questions that either
preclude certification or make a class process unfair.” (Id. at *20.) Certifying the
overtime class, the district court found the claims adjusters had shown the existence of
the following common questions warranted class treatment: “(i) whether [Allstate] had a
common and widespread practice of not following its policies regarding overtime;
(ii) whether [Allstate] knew or should have known that claims adjusters were working
off-the-clock without compensation; and (iii) whether Allstate managers who were so
informed elected to take no corrective steps with respect to adjusters who were working
overtime without compensation.” (Id. at *11.)




                                              14
3.     Dukes Discussion of Commonality Does Not Support Decertification (Dukes,
       Sec. II, at pp. 2550-2557)

       In initially granting certification, the trial court concluded that appellant’s Off-the-
Clock claim satisfied the requirements of numerosity, commonality, typicality, and
adequacy of representation needed for class certification. The court found:


       ● The class was “ascertainable and identifiable from [Allstate’s] corporate records
       because [appellant] alleges that all California Field Adjusters worked off the clock
       by performing the aforementioned tasks prior to the first inspection of the day.”
       ● “[C]ommon issues of law and fact predominate over individual issues for the
       Off the Clock . . . classes.”
       ● “The Classes are so numerous that joinder would be impracticable.”
       ● “The claims of the Class Representative are typical of the claims of the
       members of the Classes.”
       ● “The interests of the Classes will be adequately represented by the Class
       Representative.”
       ● “The Court further finds that a class action is a superior procedural device for
       resolution of these claims.”


       In its post-Dukes motion for decertification, Allstate argued it had a policy
forbidding adjusters from working before each day’s first appointment, and Allstate
asserted it instructed its adjusters to follow that policy. Allstate also argued not every
adjuster claimed to work off the clock, and among those who claimed they worked off the
clock, they varied in how much time they worked, with some number of them working de
minimis time.
       Dukes did not make the trial court’s original certification order incorrect. In
particular, and contrary to Allstate’s assertion here, Dukes did not establish an absence of
commonality here. First of all, the trial court’s decertification order did not address
commonality, nor did it quote or cite to part II of Dukes which discussed commonality.

                                              15
(Ramirez v. Balboa Thrift and Loan (2013) 215 Cal.App.4th 765, 776 [appellate court
considers only trial court’s stated reasons for decertification]; Jaimez v. Daiohs USA,
Inc., supra, 181 Cal.App.4th at pp. 1297-1298; Bufil v. Dollar Financial Group, Inc.,
supra, 162 Cal.App.4th at p. 1205.) Furthermore, the decertification order cited no new
evidence in support of overturning the court’s previous commonality finding.7 The
decertification order asserted that appellant’s evidence showed that only 58 percent of
adjusters worked off the clock, meaning 42 percent did not. But this was not new post-
Dukes evidence, nor is clear that it means what the trial court seems to suggest. The 58
percent figure came from a February 2010 declaration of appellant’s statistical expert
filed in support of appellant’s motion for certification. The statistician’s declaration
stated he calculated that 58 percent of all “person-workdays” accrued overtime as
measured by a statistical sampling of the time adjusters logged onto the Work Force
Management System before the presumed 8:00 a.m. start time of each adjuster’s
workday. Properly understood, the statistician does not appear to declare that only 58
percent of adjusters claimed to have worked any overtime (or if he does so declare, he
does so inconclusively); rather, when one multiplied the number of all days worked by all
adjusters by the number of adjusters, more than half of those days involved overtime.
       Although the trial court’s decertification order did not rely on Dukes’ discussion of
the commonality requirement, some courts have concluded Dukes clarified the
commonality requirement for class certification. (See e.g. Schulz v. QualxServ, LLC
(S.D. Cal. 2012) 2012 WL 1439066, *3.) Commonality exists when the class claim
poses a question for which the answer advances the litigation. As Dukes explained, class
“claims must depend upon a common contention . . . . That common contention,
moreover, must be of such a nature that it is capable of classwide resolution – which
means that determination of its truth or falsity will resolve an issue that is central to the
validity of each one of the claims in one stroke.” (Dukes, supra, 131 S.Ct. at p. 2551.) In

7      Allstate took additional discovery before filing its decertification motion, but the
court did not cite any of that discovery in its decertification order.

                                              16
Dukes, 1.5 million female employees could not show their failure to receive promotions
or pay raises was amenable to class treatment because each manager had individual
discretion over those decisions. No Wal-Mart policy explained the alleged
discriminatory practices of individual supervisors. (Contrast Wang v. Chinese Daily
News, Inc., supra, 2013 WL 4712728 [“Wal–Mart is factually distinguishable . . . Most
important, the class here is much smaller. It encompasses only about 200 employees, all
of whom work or worked at the same . . . office. Plaintiffs’ claims do not depend upon
establishing commonalities among 1.5 million employees and millions of discretionary
employment decisions.”].) As Dukes explained, “Without some glue holding the alleged
reasons for all those decisions together, it will be impossible to say that examination of
all the class members’ claims for relief will produce a common answer to the crucial
question why was I disfavored.” (Id. at p. 2552, original italics.)8
       Here, in contrast, the alleged commonality was the practice of adjusters working
off-the-clock in order to complete their daily work. Under California law, an employer
who knew, or should have known, of overtime work exposes the employer to liability.
(Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 585; York v. Starbucks (C.D. Cal)
2011 WL 8199987, *28-29.) A company-wide practice can sustain a common question of
fact or law that supports commonality for class certification. (Dukes, supra, 131 S.Ct. at
pp. 2556-2557 [“convincing proof of a companywide discriminatory pay and promotion

8      Judge Richard Posner of the 7th Circuit described Wal-Mart as follows in
McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (7th Cir. 2012) 672 F.3d 482:
“Wal-Mart holds that if employment discrimination is practiced by the employing
company’s local managers, exercising discretion granted them by top management
(granted them as a matter of necessity, in Wal–Mart’s case, because the company has 1.4
million U.S. employees), rather than implementing a uniform policy established by top
management to govern the local managers, a class action by more than a million current
and former employees is unmanageable; the incidents of discrimination complained of do
not present a common issue that could be resolved efficiently in a single proceeding. . .
because there was no company-wide policy to challenge in Wal-Mart—the only relevant
corporate policies were a policy forbidding sex discrimination and a policy of delegating
employment decisions to local managers—there was no common issue to justify class
treatment.” (Id. at p. 488, original italics.)

                                             17
policy” could have “established the existence of [a] common question”].) “Even a single
common question” can suffice to create commonality. (Dukes at p. 2556; Wang v.
Chinese Daily News, Inc., supra, 2013 WL 4712728, *4; see e.g. Driver, supra, 2012 WL
689169, *4 [in case challenging practice of using tipped employees in duties arguably
unrelated to their tipped occupations, court applied Dukes and concluded plaintiffs “have
submitted substantial evidence of exactly what the Supreme Court found to be missing in
[Dukes]: standardized conduct that could render [the defendant employer] liable to the
class members for claims alleged.”].)
       Allstate disputes whether a company-wide practice existed of adjusters working
off the clock. According to Allstate, it instructs adjusters not to begin work before they
arrive at their first appointment. Allstate asserts that at most “the evidence shows that
reactions differed from manager to manager and from employee to employee, purportedly
leading some adjusters to work off-the-clock, while others did not.” Allstate also asserts
its policy is to pay for all overtime that adjusters work, and indeed, appellant concedes he
received overtime pay 70 times.
       We need not, however, address the accuracy of Allstate’s assertions because doing
so goes to the merits of the class claims. As our Supreme Court said in Brinker, supra,
53 Cal.4th at page 1024, inquiries into the merits as part of a certification motion are
“closely circumscribed.” We instead assume based on the evidence appellant and other
adjusters put to the trial court that Allstate had a company-wide practice of adjusters
working off-the-clock. (Id. at p. 1023 [court assumes claims have merit].) An unlawful
practice may create commonality even if the practice affects class members differently.
“[C]lass treatment does not require that all class members have been equally affected by
the challenged practices—it suffices that the issue of whether the practice itself was
unlawful is common to all.” (Jacks v. DirectSat USA, LLC (N.D. Ill. 2012) 2012 WL
2374444, *6, but see In re Bank of America Wage and Hour Employment Litigation (D.
Kan. 2012) 286 F.R.D. 572, 588 [“[E]ven if plaintiffs established the unofficial policy
they allege the Bank maintained, there is no way in the class action context to prove the
Bank’s liability to each member because there is no evidence that each class member in

                                             18
fact was affected by the unlawful policy.”].) It may be true that some adjusters never
worked off the clock, and such adjusters were thus not injured by Allstate’s practice of
adjusters working off the clock. But the existence of individuality as to damages does not
defeat class certification. (Jimenez, supra, 2012 WL 1366052, *19 [“[O]vertime claims
may present a number of individualized questions, including whether individual
employees worked off-the-clock. [Citation.] Nonetheless, courts have certified classes
and allowed collective actions to proceed notwithstanding such circumstances. . . . [¶]
Here, Plaintiffs allege a company-wide policy of discouraging and limiting overtime.”];
Espinoza v. 953 Assocs. LLC, supra, 280 F.R.D. at p. 130 [“Plaintiffs allege that
Defendants failed to pay minimum wages and overtime compensation as a result of
certain policies and practices. Although plaintiffs’ claims may raise individualized
questions regarding the number of hours worked and how much each employee was
entitled to be paid, those differences go to the damages that each employee is owed, not
to the common question of Defendants’ liability.”].)

                                      DISPOSITION

       Let a writ of mandate issue directing the trial court to vacate its order entered on
July 24, 2012, decertifying the “Off-the-Clock” class and the companion “Unfair
Competition” class, and to issue a new order reinstating certification of those classes.




                                                  RUBIN, J.
WE CONCUR:



              BIGELOW, P. J.



              FLIER, J.


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