Filed 12/4/19; Modified and Certified for Pub. 12/23/19 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                              DIVISION SEVEN


DAVID CACHO et al.,                             B284827

       Plaintiffs and Appellants,               (Los Angeles County
                                                Super. Ct. No. BC558689)
       v.

EUROSTAR, INC.,

     Defendant and
Respondent.




      APPEAL from an order of the Superior Court of Los
Angeles County, Elihu M. Berle, Judge. Affirmed.
      Matern Law Group, Matthew J. Matern and Dalia Khalili
for Plaintiffs and Appellants.
      Manatt, Phelps & Phillips, Andrew L. Satenberg,
Benjamin G. Shatz and Cherise S. Latortue for Defendant and
Respondent.
       Plaintiffs David Cacho and Regina Silva assert class claims
against their former employer, Eurostar, Inc., alleging Eurostar
violated California wage and hour laws by failing to provide
employees with required meal and rest breaks and compelling
employees to work off the clock at Eurostar’s Warehouse Shoe
Sale (WSS) retail shoe stores in California. Plaintiffs appeal from
the trial court’s order denying their motion for class certification,
in which the court found plaintiffs failed to demonstrate common
issues of law or fact predominated over individual issues and
plaintiffs’ claims were not typical of the class. Plaintiffs contend
Eurostar maintained uniform break and overtime policies that
are facially inconsistent with the labor laws, and therefore the
claims are “eminently suited” for class adjudication under
Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th
1004 (Brinker).
       This case presents the question whether in the wake of
Brinker, if the employer has a break policy (here, a meal break
policy) that is compliant with the applicable wage order but silent
as to certain requirements, does the omission of those
requirements support class certification in the absence of
evidence of a uniform unlawful policy or practice? Similarly,
where an employer has a uniform written break policy that on its
face is unlawful (here, a rest break policy), but in practice the
policy has not been applied to company employees, is it
nonetheless suitable for class certification? The answer to both
questions is no. Although trial courts must be wary of analyzing
evidence of wage and hour violations at the class certification
stage in a manner that prejudges the merits, they may properly
consider the evidence to determine whether classwide liability
can be established through common proof.




                                 2
       Because plaintiffs failed to show they could prove
Eurostar’s liability for meal break, rest break, and off-the-clock
violations by common proof at trial, the trial court did not abuse
its discretion in denying class certification. In reaching its
determination, the trial court did not err in considering the
evidence submitted by the parties as to Eurostar’s policy and
practices to assist the court in making the threshold
determination whether plaintiffs could prove liability for the
alleged violations with common proof. We affirm.

      FACTUAL AND PROCEDURAL BACKGROUND

A.     The Parties
       1.   Eurostar and its WSS stores1
       Eurostar operates approximately 69 WSS retail shoe stores
in California and has more than 2,500 hourly employees in the
state.2 At each WSS store, Eurostar employs three categories of
managerial employees: store manager, assistant manager, and
supervisor. The store manager is a salaried position, while the
assistant manager and supervisor are nonexempt hourly
positions. Nonmanagement hourly employees include head
cashiers, cashiers, sales associates, apparel assistants, and loss
prevention personnel. An individual store may have from nine to
26 employees.

1     The factual background is taken from evidence submitted
by the parties in connection with plaintiffs’ class certification
motion.
2    Eurostar also operates WSS shoe stores in Nevada, Arizona
and Texas. Because the lawsuit concerns only California
employees, we discuss only Eurostar’s California operations.




                                 3
       The store manager is responsible for overseeing all
operational aspects of each WSS store, including scheduling
employee shifts, scheduling and implementing employee meal
breaks, and implementing company policies and procedures. The
assistant manager and supervisor assist the store manager in
these responsibilities. Store managers, assistant managers, and
supervisors work to ensure individual stores adhere to company
policies. The duties of the managerial and nonmanagerial
employees are generally the same at all WSS locations.
       Each WSS store manager reports to a regional district
manager. All district managers report to Eurostar’s Vice
President of Store Operations, Plutarco Mendoza.

      2.    Plaintiff David Cacho
      David Cacho was hired in January 2010 as a loss
prevention officer in the San Bernardino store, then was
promoted that year to sales associate, and later to cashier. At the
end of 2010 Cacho transferred to the Rialto store where he
worked first as a cashier, then a supervisor. In late 2011 Cacho
transferred to the Riverside store, where he worked as a
supervisor for approximately nine months. In September 2012 he
transferred to the Fontana store where he worked as a supervisor
until he was promoted to assistant manager in approximately
January 2013. Cacho reported to a different store manager at
each of these locations; however, the stores were all within the
same district, under the supervision of district manager Juan
Carlos Mancera. Eurostar terminated Cacho’s employment in
August 2013 for violating company policy. According to Cacho,
Mancera and Fontana store manager Luis Arzate told Cacho he
was terminated for tampering with the store security system.




                                4
      3.     Plaintiff Regina Silva
      Regina Silva was hired in November 2009 as a sales
associate at the Fontana store while she was still in high school,
and over the next three and a half years she held multiple
nonexempt nonmanagerial positions, including sales associate,
cashier, and head cashier. Silva worked at the Fontana store
throughout her employment, except for six months in 2013 when
she worked at the San Bernardino store. From about August
2012 to August 2013 Silva reported to Cacho in his role as a
supervisor or assistant manager for the Fontana store. Eurostar
terminated Silva’s employment in August 2013 for violating
company policy. Silva believed she was terminated in connection
with Eurostar’s allegation Cacho had tampered with the store
security system to steal money.

B.    Eurostar’s Break and Timekeeping Policies
      Eurostar maintains an employee handbook setting forth
the company’s policies for meal breaks, rest breaks, timekeeping,
and overtime. The handbook is provided to new hires at their
orientation training and to all employees whenever the policies
are updated. At issue in this case are the 2007 handbook (titled
“Revised 04/30/2007”) and the revised 2013 handbook (titled
“Revised 10/2013”). The policies in the handbooks apply to all
WSS stores. Individual stores are not allowed to create their own
break policies.
      The company’s six district managers attended periodic
in-person meetings at corporate headquarters, where they
discussed policies and reviewed the employee handbook. They
also received uniform training regarding payroll systems, store




                                5
standards, and employee scheduling. The district managers were
responsible, in turn, for training store managers and ensuring
store managers implemented company policies, including those
set forth in the employee handbooks.

      1.     Meal break policies
      Eurostar’s 2007 and 2013 handbooks provide that
employees working more than five hours per day are entitled to
at least one off-duty, unpaid meal break. The 2007 handbook
states: “Employees working over five (5) hours in any workday
qualify for at least one-half (1/2) hour, unpaid, off-duty meal
break during that workday. But, the meal period may be waived
by mutual consent of management and employee if the
employee’s work period of less than six (6) hours completes the
employee’s workday. The meal period for most employees
scheduled to work eight (8) hours is usually one (1) hour. [¶]
Employees must clock out at the beginning of the meal period
and clock back in at the end of the meal period. No supervisor is
permitted to instruct an employee to skip their meal period. In
certain circumstances, if an employee must take a meal break
and remain on the premises, the employee is paid for the meal
break. Only a supervisor can authorize an ‘on-duty’ meal break.”
      The 2013 handbook contains an identical meal break policy,
except it provides as to paid on-duty meal breaks, “If the nature
of an employee’s work requires the employee to take a meal break
on the premises, and the employee has signed a written on-duty
meal period consent form, then the employee will be paid for the
meal break.”




                               6
       2.    Rest break policies
       The 2007 handbook provides as to rest breaks: “Employees
who work a minimum of four (4) hours per day are authorized to
receive one (1) paid ten (10) minute rest period. Employees who
work six (6) hours or more per day are authorized to receive two
(2) paid ten (10) minute rest periods, one (1) in the morning
before the meal break and one (1) in the afternoon.”
       In 2013 Eurostar revised its handbook to provide a first
rest break for employees who worked at least three and a half
hours of work and an additional break if they work over 10 hours:
“Employees who work a minimum of three and one half (3 1/2)
hours per day are authorized to receive one (1) paid ten (10)
minute rest period. Employees who work six (6) hours or more
per day are authorized to receive two (2) paid ten (10) minute rest
periods, one (1) in the morning before the meal break and one (1)
in the afternoon. Employees who work more than ten (10) hours
on a given day are entitled to a third rest period of ten (10)
minutes.”
       Both the 2007 and 2013 handbooks state, “A rest period
also includes time at your workstation when you make or receive
a personal telephone call, eat a snack, attend to personal
business or otherwise ‘relax.’ The company prefers employees to
take their breaks by leaving their workstation. If a break is
taken at the work station, a professional atmosphere must be
maintained at all times.”

      3.     Timekeeping policies and prohibition of off-the-clock
             work
      Eurostar employees are responsible for clocking in and out
for their shifts and meal breaks and for accurately recording all




                                 7
hours worked, including overtime. The 2007 and 2013 handbooks
both state, “Accurately recording time worked is the
responsibility of every employee. . . . [¶] All employees should
log in at the PC/register when they begin and end their work, as
well as the beginning and ending time of each meal period. . . .
Overtime work must always be approved before it is
performed. . . . [¶] It is the employees’ responsibility to key in
their number and ensure the accuracy of all time worked and
recorded.”
       The 2007 handbook elaborates, “All overtime work must be
authorized in advance by a supervisor. If an employee works
overtime without prior authorization, the employee must be paid
for the overtime, however, the Manager should discipline the
employee for violation of this policy. [¶] Under no circumstances
is an employee to clock out and continue working. Any manager
permitting employees to work ‘off the clock’ will be subject to
disciplinary action up to and including termination.” The 2013
handbook contains similar language.

C.     Plaintiffs’ Class Action Complaint
       On September 25, 2014 Cacho and Silva filed a putative
class action on behalf of all similarly situated current and former
nonexempt Eurostar employees in the State of California at any
time within the period from September 25, 2010 to the conclusion
of the case. On February 25, 2015 Plaintiffs filed their operative
first amended complaint alleging 11 causes of action for
violations of Industrial Welfare Commission wage order No. 7-
2001 (Cal. Code Regs., tit. 8, § 11070; Wage Order) and related
provisions of the Labor Code, including for: (1) failure to provide
meal breaks; (2) failure to provide rest breaks; (3) failure to pay




                                 8
overtime wages; (4) failure to pay minimum wages; (5) failure to
pay timely wages; (6) failure to pay all wages due to discharged
employees; (7) failure to maintain required records; (8) failure to
furnish accurate itemized wage statements; (9) failure to
reimburse for work-related expenditures; (10) failure to pay
unused vacation time; and (11) unfair and unlawful business
practices.3
      Plaintiffs’ first amended complaint defined 11 subclasses of
Eurostar employees, one for each of the 11 causes of action.
Plaintiffs separated the subclasses into two time periods, class
period “A” running from September 25, 2010 through the
judgment, and class period “B” running from May 29, 2013
through the judgment. The meal break subclass was divided into
a subclass for nonmanagerial employees (all in class period A)
and managerial employees (all in class period B). According to
plaintiffs, they alleged these subclasses and time periods in
response to a 2013 settlement of certain wage and hour claims
asserted against Eurostar in Reyes v. Eurostar (Super. Ct. L.A.
County, 2013, No. BC475950).

D.     Plaintiffs’ Motion for Class Certification
       On October 19, 2016 plaintiffs filed a motion for class
certification seeking to certify eight subclasses of nonexempt
Eurostar employees, including four meal break subclasses, a rest


3     Plaintiffs also alleged a cause of action for penalties under
the Labor Code Private Attorneys General Act of 2004 (Lab.
Code, § 2698 et seq.; PAGA). In August 2017 plaintiffs dismissed
the PAGA claim without prejudice to pursue their appeal of the
court’s order denying class certification.




                                 9
break subclass, a “shaved time” subclass of employees who were
paid less than the time recorded on their time sheets, an off-the-
clock subclass of employees who were required to perform unpaid
work while clocked out, and a subclass of employees who were not
reimbursed for necessary expenditures.4
      Plaintiffs supported their motion with Eurostar’s policy
manuals; the time and pay records for a sample of 108 WSS
employees; declarations from Silva, Cacho, and Denia Rivas, a
former Eurostar employee;5 a declaration from plaintiffs’ class



4      Plaintiffs do not challenge on appeal the trial court’s order
declining to certify the shaved time and expenditure
reimbursement subclasses. Plaintiffs have waived any argument
the trial court erred in denying certification as to these
subclasses. (Tiernan v. Trustees of Cal. State University &
Colleges (1982) 33 Cal.3d 211, 216, fn. 4 [“Plaintiff has not raised
this issue on appeal, however, and it may therefore be deemed
waived.”]; Sierra Palms Homeowners Assn. v. Metro Gold Line
Foothill Extension Construction Authority (2018) 19 Cal.App.5th
1127, 1136 [appellant forfeited challenge to issue not raised on
appeal].) Plaintiffs also do not raise on appeal the trial court’s
denial of their claims for failure to pay all wages due to
discharged and quitting employees; failure to maintain required
records; failure to furnish accurate, itemized wage statements;
and unfair business practices, which claims plaintiffs asserted
were derivative of their other claims. Nor do they raise on appeal
their argument Eurostar had a policy of “auto-deducting” time for
meal breaks if there was no record of an employee clocking out
for a break on a qualifying shift. Plaintiffs have therefore also
waived any arguments on appeal as to these claims.
5     The trial court struck Rivas’s declaration because of her
repeated failure to appear for her deposition despite being served




                                10
data analysis expert, Bennett Berger; and excerpts of the
deposition testimony of Silva, Cacho, Mendoza, Mancera,
Christopher Habash (Eurostar’s controller), and Marie MacKay
(Eurostar’s senior director of human resources).
      In opposition to plaintiffs’ class certification motion,
Eurostar filed declarations from Mendoza and Abigail Vasquez,
an assistant manager and former supervisor who had worked at
the Baldwin Park and Riverside WSS stores. Eurostar also
submitted excerpts of Berger’s deposition.6
      On reply, plaintiffs submitted a supplemental declaration
from Berger and excerpts of Vasquez’s deposition.

       1.    Meal break subclass evidence
       Plaintiffs moved to certify four meal break subclasses of
nonexempt managerial and nonmanagerial employees allegedly
denied a 30-minute meal break during the first five hours of their
shift or a second meal break before the commencement of their
10th hour of work.7


with multiple subpoenas and a court order to appear. Plaintiffs
do not appeal the court’s order striking Rivas’s declaration.
6     Plaintiffs and Eurostar each filed evidentiary objections.
However, the trial court never ruled on the objections, and the
parties do not address the objections on appeal.
7     The Wage Order provides in relevant part, “No employer
shall employ any person for a work period of more than five (5)
hours without a meal period of not less than 30 minutes, except
that when a work period of not more than six (6) hours will
complete the day’s work the meal period may be waived by
mutual consent of the employer and the employee.” (Wage Order,
§ 11(A); accord Lab. Code, § 512(a).) The Supreme Court in




                                11
              a.    Plaintiffs’ evidence
       Plaintiffs relied on the 2007 and 2013 handbooks as facial
evidence Eurostar had a uniform meal break policy and practice
that violated the Wage Order by omitting language stating
employees were entitled to take their first meal break within
their first five hours of work and a second meal break before
starting the 10th hour of work.
       Plaintiffs also presented evidence Silva and Cacho were
sometimes denied or unable to take a full 30-minute meal break.
Silva testified two of her managers at the Fontana store
instructed her, a cashier at the time, on multiple occasions
during the busy shopping season either to bring her lunch or to
grab a quick lunch so she could return to her register early.
Silva’s Fontana managers called her back to the register during
her lunch break and sometimes waylaid her before she clocked
back in, telling her the store was too busy, but promising they
would let her take a longer break later in the day. Silva
complained on two occasions to one of the Fontana managers
about him making her work during a meal break, but she never
reported the violations to the manager’s superiors. When Silva
was a sales associate at the San Bernadino store, she observed
the head cashier being called back during a break. Silva claimed
most of her meal break violations occurred during Eurostar’s
busiest sales seasons, including back-to-school, year-end holidays,
and tax season, when the stores were not staffed sufficiently to
handle the volume of customer traffic.



Brinker clarified a meal break must be provided before the end of
the first five hours of a shift, and a second meal break before the
end of 10 hours. (Brinker, supra, 53 Cal.4th at p. 1049.)




                                12
       Cacho testified he did not recall as a supervisor receiving
any training on the company’s break policies beyond that he
should tell employees to take a 30-minute lunch break. As to his
own meal breaks, Cacho assumed supervisors were not supposed
to clock back in if their break was interrupted because he had
observed his managers working during their breaks. Further,
Cacho had no choice but to work during breaks on occasions when
he was the only manager present in the store or if the head
cashier was out sick or on a break.
       Berger provided a declaration analyzing the timesheets and
payroll data of 108 representative employees. Based on Berger’s
analysis of the clock-in and clock-out times for 31,085 shifts
during the period from September 25, 2010 through November 1,
2015, Berger opined 5.7 percent of shifts over five hours had no
meal break recorded, 0.9 percent of those shifts had a shortened
meal break, and 5.6 percent had a late meal break, for a total of
12.3 percent of shifts having a short, late, or missed first meal
break. According to Berger’s analysis, the percentage of short,
late, or missed first meal breaks was as high as 23.4 percent for
the period from September 25, 2010 through May 28, 2013 and
5.3 percent for the period from May 29, 2013 through
November 1, 2015.8 Berger also opined Eurostar had paid only
506 hours of meal break premiums for missed meal breaks from
2013 to 2015, although he calculated there were 1,592 meal break
violations.




8    Eurostar adjusted its automated timekeeping practices in
September 2013.




                               13
              b.    Eurostar’s evidence
       In its opposition, Eurostar contended its meal break
policies and practices complied with the Wage Order. Mendoza,
who testified as Eurostar’s person most qualified, stated the
company’s policy was to schedule meal breaks before the fifth
hour and employees were entitled to second meal breaks “when
they will pass ten hours of work.” Store manager Vasquez
submitted a declaration stating she scheduled employee lunch
breaks to begin three to four hours after the beginning of a shift.
       Vasquez also stated that in three years in management,
she never received a complaint from an employee that his or her
lunch break had been cut short or the employee worked while
clocked out for lunch. District manager Mancera testified if a
store were understaffed, a manager might ask an employee to
work through a scheduled meal break or reschedule the break,
but Eurostar would pay a meal break premium for any missed or
late break. Mancera, Mendoza, and Habash all testified company
policy required payment of meal break premiums for breaks that
started after the fifth hour. Eurostar’s timekeeping software
automatically calculated premiums for breaks after the fifth
hour, but it is not clear from the record whether this system was
in place throughout the entire class period, or only after the
September 2013 change in Eurostar’s timekeeping practices.
       Eurostar filed excerpts of Cacho’s deposition testimony in
which he stated he understood as a manager he was responsible
for ensuring employees received meal breaks, and he had
employees take their meal breaks approximately four hours into
their shifts based on his understanding of company policy. Cacho
understood employees had to clock in and out for meal breaks,
and he never interrupted an employee during a meal break or




                                14
asked an employee to return to work. As for his own meal
breaks, Cacho understood he was free to leave the store, and on
the occasions he returned early from a break to eat his lunch in
the store, he did so voluntarily.
       Silva likewise understood the company meal break policy
required her to clock out for a meal break, and no one ever told
her not to clock out. Some of Silva’s managers, including Cacho,
were “very good” about scheduling meal breaks, while others
delayed her breaks. Silva understood she was entitled to take
her meal break outside of the store.
       Eurostar argued Berger’s declaration overstated meal
break violations. Berger testified his analysis aggregated all
instances he calculated to be short, missed, or late meal breaks
for shifts over five hours, regardless of whether those shifts were
shorter or longer than six hours, thus including shifts not in
violation.9 Berger testified he had previously done an analysis
that separated out shifts over six hours, but plaintiffs had not
asked him to include the analysis in his declaration. Berger also
did not assume any grace period, counting any instance where an
employee clocked out even one minute late as a violation.
Berger’s meal break analysis also made no distinction between
supervisory and nonsupervisory employees, despite plaintiffs’
separate subclasses. Berger did not speak with Cacho, Silva, or
other putative class members as part of his analysis, and he did
not consider possible explanations for the instances he counted as
meal break violations. Eurostar noted that even under Berger’s


9     As noted, the Wage Order allows an employee to waive a
meal period for a shift of no longer than six hours. (Wage Order,
§ 11(A).)




                                15
analysis, only 12.3 percent of shifts from September 25th, 2010 to
November 1, 2015 showed a late, missing, or short meal break.

       2.    Rest break subclass evidence
       Plaintiffs moved to certify a rest break subclass, defined as
all Eurostar employees who worked during the period from
September 25, 2010 to the date of the judgment (class period A)
who were denied a 10-minute paid, uninterrupted rest break for a
shift exceeding three and a half hours, a second break for an
employee working more than six hours, or a third break for an
employee working more than 10 hours.10

            a.     Plaintiffs’ evidence
      Plaintiffs relied on the employee handbooks as facial
evidence Eurostar had a uniform unlawful rest break policy. The
2007 handbook stated an employee was entitled to a first rest
break after four hours of work, not three and a half hours, and
the handbook failed to authorize a third rest break for shifts over
10 hours. The 2013 revised handbook addressed these omissions.


10     The Wage Order provides in relevant part, “Every employer
shall authorize and permit all employees to take rest periods,
which insofar as practicable shall be in the middle of each work
period. The authorized rest period time shall be based on the
total hours worked daily at the rate of ten (10) minutes net rest
time per four (4) hours or major fraction thereof.” (Wage Order,
§ 12; see Lab. Code, § 226.7, subd. (d).) The Supreme Court in
Brinker, supra, 53 Cal.4th at page 1028, clarified: “four (4) hours
or major fraction thereof” means a period exceeding 3.5 hours;
employees working more than six and up to 10 hours are entitled
to a second rest break; and employees working 10 or more hours
are entitled to a third rest break.




                                16
But both handbooks required that “[i]f a break is taken at the
work station, a professional atmosphere must be maintained at
all times,” which plaintiffs offered as evidence of a policy
condoning break interruptions.
       Silva testified as to certain managers at the Fontana store,
and to a lesser extent at the San Bernardino store, “if you didn’t
ask for your 10-minute breaks, you wouldn’t get them.” A few of
Silva’s managers repeatedly interrupted her rest breaks, for
example, calling her back to her workstation early if the store
was busy and understaffed, or instructing her while she was on
break about what she needed to do after her break.
       Cacho testified that when he was a nonmanagerial
employee, when the store was busy his managers would
sometimes tell him that he had to wait for his rest break, and
sometimes he would not get his break until an hour later.
Cacho’s managers would interrupt his breaks multiple times per
week in the busy season, and they never told him he could
resume an interrupted break. As a manager, Cacho did not
receive training that one of his duties was to ensure employees
took their rest breaks, and Cacho did not consistently give
employees under his supervision a rest break if they did not
request one.
       Eurostar witnesses admitted Eurostar did not have a policy
of training managers to ensure employees took rest breaks absent
a request. Mendoza testified employees needed to notify their
supervisors when they wanted to take a rest break, and rest
breaks were not typically scheduled. Mancera did not know
whether management personnel were ever disciplined for failing
to ensure employees received their rest breaks. Further, he
believed employees were entitled to take two breaks when they




                                17
were scheduled to work eight hours (as opposed to the required
break after six hours). Eurostar did not pay premiums for missed
or interrupted rest breaks.

            b.     Eurostar’s evidence
      Eurostar offered evidence shifts were not scheduled for
fewer than four or more than 10 hours. Mendoza testified
managers were trained to schedule shifts for at least four hours,
and there have been “only . . . a few occasions” when employees
were scheduled to work more than 10 hours. Mancera testified
the minimum shift length was four hours; Vasquez did not
schedule shifts under five hours. Silva likewise testified she
worked shifts of four hours or longer.
      Eurostar asserted it did not have a company policy to deny
employees rest breaks that were otherwise provided in its
handbooks. Further, Mendoza testified there was a companywide
policy requiring employees to be relieved of all duties during their
rest breaks, and managers were instructed to encourage
employees to leave their workstations for rest breaks. According
to Mendoza, rest breaks were implemented differently in each of
the stores depending on store management’s preferences: Some
managers might formally schedule rest breaks or instruct
employees to take a break, while other managers might require
employees to request one. For example, Vasquez declared her
practice was to schedule rest breaks, generally within the
employees’ first two hours on the clock.
      Eurostar also submitted deposition testimony of Silva and
Cacho. Silva admitted in her deposition that whether she
received a rest break depended on who her manager was at the
time. One Fontana store manager ensured employees took their




                                18
rest breaks, Cacho and two other managers were “really good”
about breaks, and another was “okay” about sending employees
on breaks. Silva named five other managers, however, who did
not give rest breaks unless the employee specifically asked for
one, and then they sometimes would delay the break.
      Cacho testified his practice as a manager was to give rest
breaks when employees requested them, and during the busy
season he was more likely to tell employees to take a break
because they would often forget to ask. Cacho never asked an
employee to return early from a rest break. Cacho did not
maintain records regarding his own missed rest breaks.

            c.     Plaintiffs’ rebuttal evidence
      In reply, plaintiffs submitted a supplemental declaration
from Berger stating Cacho’s and Silva’s timesheets showed 42
instances in which Silva had worked a shift at least three and a
half hours but less than 4 hours, and on eight instances Cacho
worked a shift in that range.

      3.    Off-the-clock subclass evidence
      Plaintiffs moved to certify an overtime (off-the-clock)
subclass, defined as all Eurostar employees during the class
period who were not paid for time they were required to work
before clocking in, after clocking out, and while clocked out for
meal breaks.11


11    Because off-the-clock work in most instances violates
multiple wage laws, plaintiffs’ off-the-clock allegations relate to
multiple causes of action and multiple subclasses, including
overtime, minimum wage, and unpaid wage subclasses. These




                                 19
             a.     Plaintiff’s evidence
       Silva testified her managers asked her on many occasions
to work off the clock both during meal breaks, as discussed above,
and before and after her shifts. During the Fontana store’s busy
seasons, Silva’s manager asked her on multiple occasions to help
clean up the store at night after she had clocked out. Silva spent
15 minutes off the clock cleaning the store on at least five
occasions. Silva’s time records were not corrected to account for
this time. In addition, Silva was delayed up to 10 minutes on
several occasions by customer requests for assistance before she
could clock in. On occasions when Silva worked off the clock, she
had to ask the store manager for a correction if she wanted to be
paid.
       Cacho testified he worked after clocking out at the end of a
shift because “there was simply not enough time to finish the
work we were given, and [he] didn’t want to get written up [for
working overtime].” Cacho did not cite employees under his
supervision for working off the clock because he felt they were “in
the same boat” as he and simply “did not have enough time to
finish their job.” Two store managers told Cacho they had
worked off the clock.
       Plaintiffs argued employees had to work off the clock
because Eurostar chronically understaffed its stores and resisted
overtime authorization, especially during the busy seasons.
Mancera testified district managers were trained to make “sure
we stick to our budget of allowed hours, that we’re scheduling

subclasses include the same employees over the same class
period, and therefore we refer to this category (as do the parties
on appeal) as the “off-the-clock subclass.”




                                20
properly.” District managers determined store hiring needs and
required store managers to stay within budgets and weekly labor
hour allotments. District managers were solely responsible for
approving employee overtime. Eurostar did not hire additional
employees for the busy seasons; rather, current employees
worked more hours during the holidays to handle the increased
workload. Vasquez testified store management did not have
authority to hire new employees if their store was understaffed,
and the company did not hire additional employees for the busy
season.

              b.    Eurostar’s evidence
       Eurostar referred to its handbooks as evidence of a
companywide policy strongly prohibiting off-the-clock work. As
discussed, the 2007 manual stated, “Under no circumstances is
an employee to clock out and continue working. Any manager
permitting employees to work ‘off the clock’ will be subject to
disciplinary action up to and including termination.” The 2013
manual had substantially similar language.
       Silva and Cacho testified they understood company policy
prohibited off-the-clock work and both an employee and manager
would be subject to discipline for violations. According to
Mendoza, Silva was written up by management several times for
failing to clock in and out properly, and her termination resulted
from her repeated failure to comply with company policies.
       Cacho testified that as manager he was not aware of
anyone working off the clock and never asked employees to work




                                21
off the clock.12 As an employee, no one had ever told him to work
off the clock. Cacho never reported any instance of an employee
working off the clock to Mancera or human resources, and he
never complained to his superiors about his own work schedule.
       By Eurostar’s account, Silva’s off-the-clock work showed
her noncompliance with company policy rather than a company
practice condoning off-the-clock work. Silva admitted she
typically worked off the clock because a customer stopped her
while she was on her way to the employee break room to clock in
for the day or after a break, or because she felt pressure from
managers to help clean up at closing time. Her managers offered
to correct her time records when she missed part of her lunch
break, but she did not know whether corrections were made.
Silva maintained no records of her off-the-clock work.

E.    Trial Court’s Denial of Class Certification
      On June 21, 2017, after hearing oral argument, the trial
court issued its ruling from the bench. Citing to the Supreme
Court’s test for class certification in Sav-On Drug Stores, Inc. v.
Superior Court (2004) 34 Cal.4th 319 (Sav-On), the court
analyzed whether plaintiffs met their burden to establish an
ascertainable and sufficiently numerous class and a well-defined
community of interest among class members, considering (1)
predominant common questions of law or fact; (2) class
representatives with claims typical of the class; and (3) class
representatives who could adequately represent the class.

12   Cacho appears to have distinguished in his deposition
between seeing employees work off the clock while he was a
supervisor and not observing or ordering off-the-clock work while
he was a “manager.”




                                22
       The court found plaintiffs established the putative class
members were ascertainable and sufficiently numerous, and
business records would be sufficient to identify which employees
fell within the subclasses. The court also found plaintiffs and
their counsel adequately represented the class.
       However, the court denied class certification, concluding
plaintiffs had not met their burden of establishing predominant
common questions of law or fact or the typicality of Silva and
Cacho’s claims. As to meal break violations, the court rejected
plaintiffs’ argument the failure of Eurostar’s handbook to address
every circumstance in which an employee is entitled to a meal
break showed a uniform policy that violated the Wage Order.
Further, Cacho’s and Silva’s testimony was primarily limited to
their experiences working together at two WSS stores (Fontana
and San Bernardino) and did not demonstrate a wider unlawful
practice. Moreover, plaintiffs did not offer any admissible
witness testimony out of a potential class of thousands of
employees to show unlawful practices (other than the stricken
Rivas declaration).
       The trial court found Berger’s declaration unavailing
because it showed a meal break compliance rate of almost 90
percent, and nearly 95 percent when focusing on the class period
beginning May 29, 2013. The declaration also suffered from
defects calling into doubt Berger’s total count of violations,
sincluding his failure to distinguish between shifts under and
over six hours and to distinguish between nonmanagerial and
managerial violations (the latter being limited to the post-
May 29, 2013 subclass). In addition, Berger did not opine
whether the putative meal break violations were caused by any
company practice rather than individual circumstances.




                               23
       As to plaintiffs’ rest break claims, the court found
Eurostar’s policy set forth in the 2007 handbook was defective in
stating a first rest break accrued after four hours rather than
after three and a half hours, which could evidence a common
issue, but plaintiffs failed to present any evidence Eurostar,
which corrected the policy in the 2013 handbook, had a
companywide practice of denying rest breaks on that basis.
Silva’s testimony that her rest breaks depended on whether she
had a good or bad manager bolstered the court’s finding
individual issues predominated.
       As to the off-the-clock claims, the court found Eurostar’s
written policies clearly prohibited off-the-clock work, and Cacho’s
own testimony was that as a manager he understood the policy,
never allowed employees to work off the clock, and if he had, he
would have been disciplined or terminated.
       The court also determined plaintiffs had not established
their claims were typical of the class. The testimony of Cacho
and Silva was anecdotal and appeared to be based on conduct
unique to their situation. Because plaintiffs had failed to obtain
a single admissible declaration from a putative class member,
plaintiffs had not offered any evidence to establish other class
members were subject to the same policies and practices affecting
Silva and Cacho. Conversely, because most of the alleged
violations occurred at two WSS stores involving only two people,
one of whom was in charge of enforcing company policy over the
other, and where one (Silva) was cited multiple times for failing
properly to clock in and out, this suggested plaintiffs’ claims were
atypical of the class.
       The court signed a final order denying plaintiffs’ class
certification motion on August 9, 2017. Plaintiffs timely appealed.




                                24
                         DISCUSSION

A.     Class Certification Principles and Standard of Review
       Code of Civil Procedure section 382 authorizes a class
action “when the question is one of common or general interest, of
many persons, or when the parties are numerous, and it is
impracticable to bring them all before the court.” “‘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.’”
(Noel v. Thrifty Payless, Inc. (2019) 7 Cal.5th 955, 968 (Noel);
accord, Brinker, supra, 53 Cal.4th at p. 1021.) The “‘community
of interest requirement involves 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.”’” (Noel,
at p. 968.)
       With respect to the first factor, the party seeking
certification bears the burden “not merely to show that some
common issues exist, but, rather, to place substantial evidence in
the record that common issues predominate.” (Lockheed Martin
Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1108.) The
moving plaintiff must also demonstrate the unlawful effects of
the defendants’ alleged conduct can be proven “efficiently and
manageably within a class setting.” (Duran v. U.S. Bank
National Assn. (2014) 59 Cal.4th 1, 28-29 (Duran).) In the wage
and hour context, “where a party seeks class certification based
on allegations that the employer consistently imposed a uniform




                               25
policy or de facto practice on class members, the party must still
demonstrate that the illegal effects of this conduct can be proven
efficiently and manageably within a class setting.” (Id. at p. 29.)
Even so, “‘[a]s 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, supra, 53 Cal.4th at p. 1022); accord,
Lubin v. The Wackenhut Corp. (2016) 5 Cal.App.5th 926, 935.)
“The certification question is ‘essentially a procedural one that
does not ask whether an action is legally or factually
meritorious.’” (Sav-on, supra, 34 Cal.4th at p. 326; accord Hall v.
Rite Aid Corp. (2014) 226 Cal.App.4th 278, 293 (Hall) [“as long as
the plaintiff’s posited theory of liability is amenable to resolution
on a classwide basis, the court should certify the action for class
treatment even if the plaintiff’s theory is ultimately incorrect”].)
       We review denial of a motion for class certification for
abuse of discretion. (Noel, supra, 7 Cal.5th at p. 968; Brinker,
supra, 53 Cal.4th at p. 1017.) “The decision to certify a class
rests squarely within the discretion of the trial court, and we
afford that decision great deference on appeal, reversing only for
a manifest abuse of discretion: ‘Because 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.’ [Citation.] A certification
order generally will not be disturbed unless (1) it is unsupported
by substantial evidence, (2) it rests on improper criteria, or (3) it
rests on erroneous legal assumptions.” (Fireside Bank v.
Superior Court (2007) 40 Cal.4th 1069, 1089 (Fireside Bank);
accord, McCleery v. Allstate Ins. Co. (2019) 37 Cal.App.5th 434,
450 (McCleery).)




                                 26
       However, “[i]f the court’s ‘reasons for granting or denying
certification . . . are erroneous, we must reverse, whether or not
other reasons [could have been] relied upon [to] support[ ] the
ruling.’ [Citations.] In this respect, ‘“appellate review of orders
denying class certification differs from ordinary appellate review.
Under ordinary appellate review, we do not address the trial
court’s reasoning and consider only whether the result was
correct. [Citation.] But when denying class certification, the trial
court must state its reasons, and we must review those reasons
for correctness. [Citation.] We may only consider the reasons
stated by the trial court and must ignore any unexpressed reason
that might support the ruling.”’” (McCleery, supra,
37 Cal.App.5th at p. 450.)

B.    Certification of Wage and Hour Class Actions Under
      Brinker
      The Supreme Court’s decision in Brinker, supra, 53 Cal.4th
1004, is our touchstone for analyzing whether common issues of
law and fact predominate in a putative class action alleging
employment policies in violation of the wage and hour laws. In
Brinker, the plaintiffs sought certification of wage and hour
claims on behalf of restaurant employees, including meal break,
rest break, and off-the-clock claims. They alleged, among other
things, the employer had a uniform rest break policy that
violated the applicable wage order by not providing a required 10-
minute rest break for employees who worked a minimum of three
and a half hours, but less than four hours, and a second rest
break for employees who worked more than six hours, but less
than eight hours. (Brinker, supra, 53 Cal.4th at p. 1019.)




                                27
         The Supreme Court affirmed the trial court’s certification
of the plaintiffs’ rest break subclass, explaining “[c]lasswide
liability could be established through common proof” the
employer’s uniform rest break policy violated the wage order.
(Brinker, supra, 53 Cal.4th at p. 1033.) In reaching this
conclusion, the Brinker court interpreted the wage order to
require a 10-minute rest break for shifts exceeding three and a
half hours, 20 minutes for shifts exceeding six hours, and 30
minutes for shifts exceeding 10 hours. (Id. at p. 1029.)
         The Brinker court rejected the Court of Appeal’s reasoning
that individual issues predominated because the employer could
only be liable upon a showing an employee missed his or her
break due to the company policy: “An employer is required to
authorize and permit the amount of rest break time called for
under the wage order for its industry. If it does not—if, for
example, it adopts a uniform policy authorizing and permitting
only one rest break for employees working a seven-hour shift
when two are required—it has violated the wage order and is
liable. No issue of waiver ever arises for a rest break that was
required by law but never authorized; if a break is not
authorized, an employee has no opportunity to decline to take
it. . . . The theory of liability—that [the employer] has a uniform
policy, and that that policy, measured against wage order
requirements, allegedly violates the law—is by its nature a
common question eminently suited for class treatment.”
(Brinker, supra, 53 Cal.4th at p. 1033.) The Supreme Court
observed, “Claims alleging that a uniform policy consistently
applied to a group of employees is in violation of the wage and
hour laws are of the sort routinely, and properly, found suitable
for class treatment.” (Ibid.)




                                28
      The Brinker court concluded, by contrast, the trial court
erred in certifying plaintiff’s off-the-clock subclass for which there
was no evidence of a common policy or common method of proof.
(Brinker, supra, 53 Cal.4th at pp. 1051-1052.) The Supreme
Court explained, “The rest period claim involved a uniform
Brinker policy allegedly in conflict with the legal requirements of
the Labor Code and the governing wage order. The only formal
Brinker off-the-clock policy submitted disavows such work,
consistent with state law. Nor has [plaintiff] presented
substantial evidence of a systematic company policy to pressure
or require employees to work off-the-clock . . . . As all parties
agree, liability is contingent on proof [the employer] knew or
should have known off-the-clock work was occurring. [Citations.]
Nothing before the trial court demonstrated how this could be
shown through common proof, in the absence of evidence of a
uniform policy or practice. Instead, the trial court was presented
with anecdotal evidence of a handful of individual instances in
which employees worked off-the-clock, with or without knowledge
or awareness by [the employer’s] supervisors.” (Id. at pp. 1051-
1052.)13
      In the wake of Brinker, the Courts of Appeal have
repeatedly emphasized that a trial court should focus on
plaintiffs’ theory of liability, rather than the merits or defenses,
in determining whether common issues predominate. (See, e.g.,
Hall, supra, 226 Cal.App.4th at p. 289 [“the court must ‘focus on

13    The Supreme Court remanded the case with instructions
for the trial court to reconsider its certification of the plaintiffs’
meal break subclass in light of the court’s construction of the
wage order as to meal breaks. (Brinker, supra, 53 Cal.4th at
p. 1050.)




                                   29
the policy itself’ and address whether the plaintiff’s theory as to
the illegality of the policy can be resolved on a classwide basis”];
Benton v. Telecom Network Specialists, Inc. (2013)
220 Cal.App.4th 701, 726 (Benton) [“the proper inquiry is
‘whether the theory of recovery advanced by the plaintiff is likely
to prove amenable to class treatment’”]; Bradley v. Networkers
Internat., LLC (2012) 211 Cal.App.4th 1129, 1141, 1150 (Bradley)
[“In ruling on the predominance issue in a certification motion,
the court must focus on the plaintiff’s theory of recovery and
assess the nature of the legal and factual disputes likely to be
presented and determine whether individual or common issues
predominate.”].)
       If a plaintiff’s theory is based on a common unlawful policy,
evidence that some employees were treated differently does not
defeat certification; rather, class members may individually have
to prove their damages. (Hall, supra, 226 Cal.App.4th at p. 289
[“[W]here the theory of liability asserts the employer’s uniform
policy violates California’s labor laws, factual distinctions
concerning whether or how employees were or were not adversely
impacted by the allegedly illegal policy do not preclude
certification.”]; Benton, supra, 220 Cal.App.4th at p. 726 [“the fact
that individual inquiry might be necessary to determine whether
individual employees were able to take breaks despite the
defendant’s allegedly unlawful policy (or unlawful lack of a
policy) is not a proper basis for denying certification”];
Faulkinbury v. Boyd & Associates, Inc. (2013) 216 Cal.App.4th
220, 235 (Faulkinbury), disapproved on another ground by Noel,
supra, 7 Cal.5th p. 986, fn. 15 [“[T]he employer’s liability arises
by adopting a uniform policy that violates the wage and hour
laws. Whether or not the employee was able to take the required




                                 30
break goes to damages, and ‘[t]he fact that individual [employees]
may have different damages does not require denial of the class
certification motion.’”].)
       Significantly, in Brinker, Hall, Benton, Faulkinbury, and
Bradley, the plaintiffs “pleaded and presented substantial
evidence of a uniform . . . policy” or practice they alleged to be
unlawful. (Brinker, supra, 53 Cal.4th at p. 1033; see Hall, supra,
226 Cal.App.4th at p. 292 [employer did not dispute it did not
allow its cashier/clerks to sit while they performed checkout
functions at register, which plaintiffs alleged violated wage order
requirement to provide suitable seating]; Benton, supra,
220 Cal.App.4th at pp. 707-710 [plaintiffs submitted more than
40 employee declarations and other evidence showing employer
failed to adopt meal and rest break policy and employees could
rarely take full breaks]; Faulkinbury, supra, 216 Cal.App.4th at
p. 233 [evidence established employer had uniform policy of
requiring all security guard employees to take paid, on-duty meal
breaks]; Bradley, supra, 211 Cal.App.4th at p. 1150 [plaintiffs
presented evidence of employer’s uniform practice of failing to
provide or authorize required meal and rest breaks and evidence
employees did not take required breaks].)
       In cases where there is a dispute as to whether there is a
uniform unlawful policy, however, it may be necessary for the
trial court to weigh the evidence at the certification stage for the
purpose of making the threshold determination whether there is
substantial evidence of a uniform policy or practice for the
purpose of determining whether common issues predominate.
(Dailey v. Sears, Roebuck & Co. (2013) 214 Cal.App.4th 974, 991
(Dailey) [“We see nothing inappropriate in the trial court’s
examination of the parties’ substantially conflicting evidence of




                                31
[the employer’s] business policies and practices and the impact
those policies and practices had on the proposed class
members. . . . We therefore infer the trial court . . . weighed the
parties’ conflicting evidence for the sole, entirely proper, purpose
of determining whether the record sufficiently supported the
existence of predominant common issues provable with classwide
evidence . . . .”]; see Brinker, supra, 53 Cal.4th at p. 1025 [“To the
extent the propriety of certification depends upon disputed
threshold legal or factual questions, a court may, and indeed
must, resolve them.”]; Sav-on, supra, 34 Cal.4th at pp. 328-329
[substantial evidence supported trial court’s determination
common issues predominated where record contained
substantial, although disputed, evidence that employer had
policy and practice to deliberately misclassify workers as exempt
employees].)
       Even if the existence of a uniform policy is not in dispute,
the trial court may consider the evidence to determine whether
the defendant’s liability under the policy is susceptible to
common proof. (See Brinker, supra, 53 Cal.4th at p. 1033
[“Classwide liability could be established through common proof
if [plaintiff] were able to demonstrate that [the employer] under
this uniform policy refused to authorize and permit a second rest
break for employees working shifts longer than six, but shorter
than eight, hours.”].) In these circumstances, a trial court is not
deciding whether employees “were able to take breaks despite the
defendant’s allegedly unlawful policy” (Benton, supra,
220 Cal.App.4th at p. 726), but rather, whether “the evidence
supports the conclusion that individual questions would
predominate in the proof of liability, not just damages.” (Payton




                                 32
v. CSI Electrical Contractors, Inc. (2018) 27 Cal.App.5th 832,
843.)

C.     Individual Questions Predominate as to Plaintiffs’ Meal
       Break Claims
       Plaintiffs contend the trial court erred in rejecting
Eurostar’s written meal break policy as prima facie evidence of a
uniform unlawful meal break policy and discounting plaintiffs’
evidence of a policy and practice of meal break violations. As
discussed, Eurostar’s written meal break policy as stated in the
2007 and 2013 handbooks provided, “Employees working over
five (5) hours in any workday qualify for at least one-half (1/2)
hour, unpaid, off-duty meal break during that workday.”
Plaintiffs argue the policy is unlawful because it does not specify
an employee’s meal break should commence within the first five
hours of work and does not authorize a second meal break for
shifts exceeding 10 hours. Plaintiffs contend Eurostar’s written
policy therefore evidences a uniform unlawful policy appropriate
for class adjudication under Brinker. (See Brinker, supra,
53 Cal.4th at p. 1033.) It does not.
       As the trial court correctly observed, “[W]ith regard to the
meal-break issue, the plaintiffs’ argument is not that the
language of the policies as written affirmatively conflict with
California law. Rather, plaintiffs’ argument is essentially that
the written policies are noncompliant for omitting certain
language; that is, not going far enough in expressing all aspects
of the legal requirements.” The fact Eurostar’s employee
handbook does not address when meal breaks are given within a
shift is not evidence the company has a policy not to provide meal
breaks within the first five hours. Likewise, the fact Eurostar’s




                                33
handbook authorizes “at least” one half hour meal break for a
shift over five hours is not evidence the company has a policy to
deny employees a second break for shifts exceeding 10 hours.
The trial court concluded “the fact that policies did not embody
every aspect of the Labor Code does not particularly cut in either
party’s favor in this case.”
       Because there is no uniform written policy regarding the
timing of the first and second meal breaks, the trial court did not
err in considering the parties’ testimony and statistical evidence
regarding Eurostar’s policies and practices to determine whether
plaintiffs’ proof of Eurostar’s liability at trial would involve
common or individual issues. (See Dailey, supra,
214 Cal.App.4th at p. 991 [trial court properly weighed the
evidence for the “purpose of determining whether the record
sufficiently supported the existence of predominant common
issues provable with classwide evidence”].)
       The holding in Brinker is not to the contrary. In Brinker,
the Supreme Court determined the wage order required a rest
break after three and a half hours, but it was undisputed the
defendant’s uniform rest break policy authorized a break only
after four hours; accordingly, the employer’s liability presented a
matter of common proof. (Brinker, supra, 53 Cal.4th at pp. 1030-
1031.) Here, by contrast, the substance of Eurostar’s meal break
policy is disputed. Eurostar offered evidence it had a
companywide policy to schedule meal breaks in the first five
hours and to provide a second meal break for shifts exceeding ten
hours. The handbook did not provide otherwise. Therefore, there
is no facially unlawful policy from which to infer Eurostar’s
classwide liability is a matter of common proof.




                                34
       This case is readily distinguishable from Bradley, supra,
211 Cal.App.4th at page 1140, on which plaintiffs rely to argue a
policy omission is effectively the same as a facial violation for
purposes of the certification analysis. In Bradley, the defendant
employer admitted it did not have meal or rest break policies in
place for its workers, nor did it offer any evidence its workers
ever received breaks. The employer argued nonetheless class
certification was not warranted under Brinker because the
plaintiffs alleged only the unlawful absence of a rest policy,
rather than an affirmatively unlawful rest break policy.
(Bradley, at p. 1150.) The Court of Appeal rejected this
distinction, explaining that “[u]nder Brinker and under the facts
here, the employer engaged in uniform companywide conduct
that allegedly violated state law.” (Ibid.) The Bradley plaintiffs
presented substantial evidence “none of the workers was
provided, or given authorization to take, the required meal or rest
breaks,” including five declarations in which employees stated
they did not take rest breaks because of the nature of the work
and the belief they would be fired if they stopped working. (Ibid.)
The defendant “did not present any evidence showing it had a
formal or informal practice or policy of permitting the required
breaks or that any worker believed he or she was entitled to take
a legally required rest or meal break, or that some or all workers
took these breaks.” (Ibid.)
       Here, unlike Bradley, Eurostar presented substantial
evidence it had a companywide policy to provide lawful meal
breaks. Mendoza, as the person most qualified for Eurostar,
testified Eurostar’s meal break policy was to schedule employees
to take a break within the first five hours and to authorize a
second meal break for shifts exceeding 10 hours. Eurostar’s




                                35
companywide policy required it to pay employees a one-hour
wage premium if a meal break began after the fifth hour, and for
at least some portion of the class period, Eurostar’s timekeeping
software paid the penalties automatically. Store manager
Vasquez testified she scheduled employee lunch breaks to begin
three to four hours into each shift to avoid the risk of a late
break. Cacho likewise testified he understood he was responsible
as a manager for ensuring employees received meal breaks, and
he sent employees on their breaks approximately four hours into
their shifts based on his understanding of company policy.
       Although Silva and Cacho testified to several instances of
missed, delayed, and interrupted meal breaks at the two WSS
stores where they primarily worked, Silva admitted that whether
she missed meal breaks depended on individual managers rather
than a company policy. Silva and Cacho did not offer any
evidence of a company policy, or even a widespread company
practice, of Eurostar denying meal breaks.
       Instead, plaintiffs principally relied on Berger’s statistical
analysis of employee timecard data as evidence of a companywide
policy of meal break violations. Berger opined 12.3 percent of
shifts in his sample showed a meal break that was missed, short,
or late. The trial court did not consider this figure to be high
enough to support the inference of an unlawful companywide
policy, and the court also found several aspects of Berger’s
analysis overstated the number of meal break violations. For
example, Berger failed to separate out shifts under six hours, for
which an employee could waive the meal break, and Berger did
not account for alternative causes of missed or late meal breaks
indicated by the timesheet data, for example if an employee failed
to clock out promptly for a meal break that was timely




                                 36
authorized. Berger’s analysis also did not break down the
violations by store, so there was no way for the court to assess
whether violations could reasonably be attributed to a uniform
policy across different stores, rather than concentrated at one or
two stores under certain managers. More broadly, Berger did not
survey any employees as to the reasons for their missed, late, or
interrupted meal breaks, nor did he opine as to the reasons for
any missed meal breaks.
       Absent a showing by plaintiffs that they can prove liability
for meal break violations by common proof at trial, Berger’s
statistical analysis cannot alone support class certification.
(Duran, supra, 59 Cal.4th at p. 31 [“While sampling may furnish
indications of an employer’s centralized practices [citation], no
court has . . . ‘suggested that statistical sampling may be used to
manufacture predominate common issues where the factual
record indicates none exist.’”].)
       In the absence of an express unlawful meal break policy,
evidence of Eurostar’s policy to the contrary, and plaintiffs’
purely anecdotal evidence of missed meal breaks, plaintiffs would
need to call numerous employees from different stores to testify
at trial about their missed meal breaks in order to prove a
uniform policy or practice of not providing meal breaks. On this
record, the trial court did not abuse its discretion in finding
plaintiffs could not prove Eurostar’s liability for meal break
violations at trial by facts common to members of the class.




                                37
D.     Individual Questions Predominate as to Plaintiffs’ Rest
       Break Claims
       1.    The trial court did not abuse its discretion in
             concluding Eurostar did not have a uniform practice
             of denying required rest breaks
       Plaintiffs contend the trial court abused its discretion in
denying class certification as to the rest break subclass because
Eurostar’s pre-2013 rest break policy set forth in its 2007
handbook, by authorizing a first rest break after four hours
(instead of three and a half hours), is facially unlawful.14
Plaintiffs are correct Eurostar’s pre-2013 rest break policy is
inconsistent with the Wage Order, providing some evidence of a
uniform unlawful policy. But it does not follow that Eurostar had
a uniform practice of denying rest breaks for employees who
worked fewer than four hours. As the Brinker court cautioned,
courts must examine the pleadings and evidence to determine
whether “‘the theory of recovery advanced by proponents of
certification is, as an analytical matter, likely to prove amenable
to class treatment.’” (Brinker, supra, 53 Cal.4th at p. 1021).
Here it is not.
       In Brinker, the employer conceded it had a common,
uniform rest break policy that applied to all employees. (Brinker,
supra, 53 Cal.4th at p. 1033.) Indeed, the Brinker court described
the policy as one “consistently applied to a group of employees.”


14    Eurostar’s 2007 handbook also did not expressly authorize
a third rest break for shifts of 10 hours or longer, as required by
the Wage Order. However, similar to the handbook’s omission of
detail on the timing of meal breaks, there is no substantial
evidence Eurostar had a policy or practice to deny a third rest
break.




                                38
(Ibid.) The question was whether individual issues predominated
because employees could waive their rest breaks. The Brinker
court concluded there was a common issue suitable for class
certification because plaintiffs “pleaded and presented
substantial evidence” the employer applied a uniform unlawful
policy; whether individual employees declined a break was not
relevant as to liability because the employees were never
authorized to take one. (Ibid.)
       As discussed, the existence of a uniform unlawful policy
does not necessarily mean the employer has liability for
violations that can be demonstrated with common proof. (See
McCleery, supra, 37 Cal.App.5th at p. 452 [employer’s failure to
adopt meal and rest break policies, even where plaintiffs’ survey
confirmed employees were denied breaks, was not sufficient to
establish common liability where the “survey failed to ask if
anyone ever worked long enough in a day . . . to be entitled to a
meal or rest period”].)15


15     In addition, even where a plaintiff has asserted a common
theory of liability, he or she must also demonstrate a class action
is procedurally superior to individual actions. (Duran, supra,
59 Cal.4th at p. 29 [where the party proposing a class asserts “the
employer consistently imposed a uniform policy or de facto
practice on class members, the party must still demonstrate that
the illegal effects of this conduct can be proven efficiently and
manageably within a class setting”]; see Cruz v. Sun World
Internat., LLC (2015) 243 Cal.App.4th 367, 384 [to merit class
certification, plaintiffs must “present substantial evidence that
proving both the existence of the defendant’s uniform policy or
practice and the alleged illegal effects of that policy or practice
could be accomplished efficiently and manageably within a class
setting”].)




                                39
      Here, plaintiffs have failed to present any, let alone
substantial, evidence Eurostar had a practice to deny rest breaks
for shifts between three and a half and four hours. Neither Silva
nor Cacho testified she or he ever missed a rest break on a shift
longer than three and a half but shorter than four hours.
Although Berger presented evidence in reply that Silva and
Cacho worked multiple shifts between three and a half and four
hours (42 and eight shifts over three years, respectively), he did
not opine whether they missed rest breaks during those shifts.
And Berger did not present evidence of how many shifts of this
length were scheduled companywide.
      Eurostar’s witnesses testified the company had a policy and
practice not to schedule shifts shorter than four hours.
Consistent with this policy, Vasquez testified her practice was to
schedule employees to take their first break within the first two
hours of their shift.
      Silva and Cacho testified their rest breaks were frequently
interrupted or delayed. But Silva conceded that in most
instances when she missed a break she had not asked to take it.
Unlike the requirements for compulsory meal breaks, the Wage
Order requires employers to “authorize and permit” employees to
take their 10-minute rest breaks. (Wage Order, § 12(A).)
      On this record, the trial court did not err in considering the
parties’ evidence to determine whether plaintiffs could establish
through common proof that Eurostar had an unlawful rest break
policy and practice. The court did not abuse its discretion in
concluding they could not.




                                40
      2.     The trial court did not err in denying class
             certification without expressly rejecting plaintiffs’ on-
             duty rest break argument
       Plaintiffs contend the language in the 2007 and 2013
handbooks requiring employees to maintain a “professional
atmosphere” while taking rest breaks at their work station does
not guarantee duty-free rest breaks, thereby violating the Wage
Order. (See Augustus v. ABM Security Services, Inc. (2016)
2 Cal.5th 257, 269-270 (Augustus) [Applicable wage order “cannot
be reconciled with permitting employers to require employees to
remain on call. . . . [A] rest period means an interval of time free
from labor, work, or any other employment-related duties.”].)
Plaintiffs argue the trial court erred by failing to address this
argument in its ruling, requiring reversal. We conclude
otherwise.
       As a threshold matter, plaintiffs did not argue in their
certification motion the court should certify an “on-duty rest
break class,” instead only describing the rest break subclass as
including employees who worked shifts of more than three and a
half hours, nor did they cite Augustus. Rather, plaintiffs only
noted in passing the rest break policy in the employee handbooks
provided a rest break could be taken at an employee’s work
station while the employee takes a personal call, eats a snack,
attends to personal business, or relaxes. To the extent the on-
duty rest break argument was part of their request to certify a
rest break subclass, plaintiffs have not cited any authority (nor is
there) for the proposition a trial court must address and dispatch
every piece of evidence and argument raised in ruling on a
certification motion.




                                 41
       Plaintiffs’ reliance on Tellez v. Rich Voss Trucking, Inc.
(2015) 240 Cal.App.4th 1052 is misplaced. There, the trial court
refused to hear oral argument, made no findings, and issued a
one-sentence order stating it was denying the motion for class
certification. (Id. at p. 1060.) The Court of Appeal remanded for
the trial court to provide a more detailed order, explaining, “[T]he
record is so devoid of explanation that it is impossible to comply
with the Supreme Court’s mandate that ‘we must examine the
trial court’s reasons for denying class certification.’ [Citation.]
We cannot tell if improper criteria were used or erroneous legal
assumptions were made. . . . Plainly, our standard of review
requires that there be some enunciation of a reason or basis for
denial of class certification from which we can determine the
soundness of the lower court’s decision.” (Id. at pp. 1064-1065.)
       Here the trial court made a detailed ruling in which it
addressed the rest break subclass, finding plaintiffs had not
presented substantial evidence of predominate common issues.16


16     Plaintiffs also contend the trial court failed to address their
claim Eurostar did not pay premiums for missed rest and meal
breaks. Like plaintiffs’ on-duty rest break claim, the asserted
nonpayment of premiums was addressed only in the context of
certification of the meal and rest break subclasses. Eurostar’s
testimony and Berger’s analysis show meal premiums were paid,
although not in proportion to the number of meal break violations
Berger calculated. But plaintiffs presented no evidence of a
common policy or practice not to pay meal break premiums. With
respect to rest breaks, Eurostar admitted it had not paid rest
break premiums during the class period, but unlike meal breaks,
rest breaks were not compulsory absent an employee request.
Further, plaintiffs presented no evidence of a companywide policy
to deny rest breaks or to fail to pay a premium for missed breaks.




                                 42
Nor is there any merit to plaintiffs’ argument the handbooks—by
requiring employees who opt to remain at their work stations
during rest breaks maintain “a professional atmosphere”—
thereby requires “on-duty” rest breaks. The policy here is not
analogous to the unlawful policy in Augustus requiring employees
“to keep radios and pagers on, remain vigilant, and respond if the
need arose” during their rest breaks. (Augustus, supra, 2 Cal.5th
at p. 270.)

E.     Individual Questions Predominate as to Plaintiffs’ Off-the-
       clock Work Claims
       Plaintiffs contend the trial court erred in refusing to certify
an off-the-clock subclass comprised of employees required to work
before or after their shifts or during meal breaks. Eurostar’s
written policies set forth in its employee handbooks expressly
prohibit off-the-clock work, stating “[u]nder no circumstances is
an employee to clock out and continue working” and providing for
discipline of employees and managers for violating the policy.
Silva and Cacho both testified this policy was communicated to
employees and managers, they understood this policy, and they
knew they could be subject to discipline for violations.
       Plaintiffs’ off-the-clock claim is on all fours with Brinker,
which affirmed the trial court’s denial of class certification. As in
Brinker, Eurostar’s “only formal . . . off-the-clock policy submitted
disavows such work, consistent with state law.” (Brinker, supra,
53 Cal.4th at p. 1051.) And, as in Brinker, plaintiffs did present
countervailing evidence of a companywide policy to pressure or
require employees to work off the clock. To the contrary, the trial
court found the testimony of Silva and Cacho as to instances in
which they felt pressured to work off the clock was anecdotal and




                                 43
specific to particular managers, circumstances, and locations.17
(See id. at pp. 1051-1052 [“Instead, the trial court was presented
with anecdotal evidence of a handful of individual instances in
which employees worked off-the-clock, with or without knowledge
or awareness by [the employer’s] supervisors.”].) Moreover,
although plaintiffs contend WSS stores were chronically
understaffed, the testimony of Eurostar witnesses establishes
only that district managers, rather than store managers,
determined hiring needs, weekly labor allotments, and overtime
approvals, and that Eurostar preferred to schedule existing
employees to work more hours rather than to hire new employees
during busy seasons. There is no evidence these management
practices were intended or resulted in pressuring employees to
work off the clock.
      On this record, the trial court did not err in considering the
parties’ evidence or abuse its discretion in finding plaintiffs failed
to present substantial evidence that liability for alleged off-the-
clock violations could be established through common proof.
(Brinker, supra, 53 Cal.4th p. 1052 [“[W]here no substantial
evidence points to a uniform, companywide policy, proof of off-

17     Plaintiffs contend the trial court’s reliance on Eurostar’s
written off-the-clock policy was reversible error because it
determined the merits of Eurostar’s common defense at the class
certification stage. (See Brinker, supra, 53 Cal.4th at p. 1023.)
But in discussing the written policy, the trial court was not
adjudicating the merits of Eurostar’s defense; rather, the court
was properly examining the evidence to determine whether
common issues predominated. (Id. at pp. 1023-1024 [“When
evidence or legal issues germane to the certification question bear
as well on aspects of the merits, a court may properly evaluate
them.”]; see Dailey, supra, 214 Cal.App.4th at pp. 990-991.)




                                 44
the-clock liability would have to continue in an employee-by-
employee fashion, demonstrating who worked off the clock, how
long they worked, and whether [the employer] knew or should
have known of their work.”].)

F.     The Trial Court Did Not Abuse its Discretion in Finding
       Plaintiffs’ Claims Are Not Typical of the Class
       “Certification requires a showing that the class
representative has claims or defenses typical of the class.”
(Fireside Bank, supra, 40 Cal.4th at p. 1090.) “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.’” (Hanon v.
Dataproducts Corp. (9th Cir. 1992) 976 F.2d 497, 508; see also
Fireside Bank, at pp. 1090-1091 [applying Hanon to typicality
analysis].) We review a trial court’s ruling on typicality with
“great deference on appeal, reversing only for a manifest abuse of
discretion.” (Fireside Bank, at pp. 1089-1090.)
       Plaintiffs contend the trial court erred in finding Silva and
Cacho were atypical of the class because the court failed to
recognize plaintiffs’ meal break, rest break, and off-the-clock
claims arose from common unlawful policies uniformly applicable
to all class members, including Silva and Cacho. But as
discussed, we affirm the trial court’s finding that plaintiffs failed
to show they could present common proof of Eurostar’s alleged
violations. Further, the trial court identified six bases for its
ruling plaintiffs’ claims were not typical of the proposed class: (1)
the anecdotal nature of plaintiffs’ evidence; (2) plaintiffs’ ability
to procure only a single declaration from a putative class




                                 45
member, which was stricken after she failed repeatedly to appear
at her deposition; (3) plaintiffs’ failure to establish the class
members were affected by the asserted policies and practices; (4)
a majority of the noncompliance alleged by plaintiffs took place at
two stores involving the same two people; (5) Silva principally
complained of violations of policies that Cacho, as her supervisor,
was charged with enforcing; and (6) Silva was disciplined for
failure to comply with company policy, including timekeeping
requirements. In light of these factors, the trial court did not
abuse its discretion in determining Cacho and Silva were not
typical of the putative class.
      Finally, plaintiffs urge us to grant leave to amend their
complaint to name a suitable class representative. But because
we affirm the trial court’s ruling that common issues of law or
fact do not predominate, there is no basis to grant plaintiffs leave
to name a new representative.

                         DISPOSITION

     We affirm the trial court’s order denying class certification.
Eurostar is entitled to recover its costs on appeal.



                                           FEUER, J.
      WE CONCUR:



            PERLUSS, P. J.                 ZELON, J.




                                46
Filed 12/23/19
                 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                        DIVISION SEVEN


DAVID CACHO et al.,                  B284827

       Plaintiffs and Appellants,    (Los Angeles County
                                     Super. Ct. No. BC558689)
       v.
                                     ORDER MODIFYING AND
EUROSTAR, INC.,                      CERTIFYING OPINION
                                     FOR PUBLICATION
     Defendant and
Respondent.                          NO CHANGE IN
                                     JUDGMENT

THE COURT:

     The opinion in the above-entitled matter filed on
December 4, 2019 is modified as follows:

      1.    The opinion was not certified for publication in the
Official Reports. For good cause it now appears that the opinion
should be published in the Official Reports, and it is so ordered.


       2.    On page 43, under part E., in the second paragraph,
third sentence, add the word “not” between “did” and “present” so
that it reads:
    And, as in Brinker, plaintiffs did not present
    countervailing evidence of a companywide policy to
    pressure or require employees to work off the clock.

    There is no change in the appellate judgment.





    PERLUSS, P. J.          ZELON, J.         FEUER, J.




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