Filed 7/18/14 Flores v. Superior Court CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


LIBERTAD FLORES et al.,                                               B245897

         Petitioners,                                                 (Los Angeles County
                                                                      Super. Ct. No. BC441766)
         v.

THE SUPERIOR COURT OF LOS
ANGELES COUNTY,

         Respondent

POLLY’S PIES, INC.,

         Real Party In Interest.



         APPEAL from an order of the Superior Court of Los Angeles County,
Teresa Sanchez-Gordon, Judge. Appeal deemed to be a petition for writ of mandate.
Petition denied.


         Rastegar & Matern, A.P.C. and Douglas W. Perlman for Plaintiff and Appellant.


         Sheppard, Mullin, Richter & Hampton LLP, Richard J. Simmons, Jason W.
Kearnaghan, and Cassidy M. English for Defendant and Respondent.
                                            _____________________
                                    INTRODUCTION
       Plaintiffs Libertad Flores and Amanda Mignosi (Plaintiffs) brought a putative
class action against their former employer, defendant Polly’s Pies, Inc. (Defendant), for
alleged meal and rest period violations under the Labor Code.1 The trial court denied
Plaintiffs’ motion for class certification and granted Defendant’s motion to strike the
class allegations, finding the proposed subclasses lacked the requisite community of
interest. The record supports the trial court’s finding. Accordingly, we affirm.2
                   FACTS AND PROCEDURAL BACKGROUND
       1.     The Complaint and Competing Class Certification Motions
       Plaintiffs’ complaint asserts seven causes of action for (1) failure to provide meal
breaks (§ 226.7 and Wage Order No. 5)3; (2) failure to provide rest breaks (§ 226.7 and

1
       Statutory references are to the Labor Code, unless otherwise designated.
2
        Defendant argues this appeal should be dismissed as premature, having been taken
from an interlocutory order rather than a final judgment. Though the challenged order
denied class certification and struck all class allegations with prejudice, Defendant
contends the death knell exception to the one final judgment rule does not apply because
Plaintiffs continue to pursue a representative claim for civil penalties under section 2698
et seq., known as the Labor Code Private Attorneys General Act of 2004 (PAGA). The
death knell exception is a “tightly defined and narrow concept” (Farwell v. Sunset Mesa
Property Owners Assn., Inc. (2008) 163 Cal.App.4th 1545, 1547), predicated on the
assumption that “ ‘without the incentive of a possible group recovery the individual
plaintiff may find it economically imprudent to pursue his lawsuit to a final judgment and
then seek appellate review of an adverse class determination.’ ” (In re Baycol Cases I &
II (2011) 51 Cal.4th 751, 758.) Defendant argues Plaintiffs have adequate incentive to
pursue the litigation to final judgment because the challenged order does not limit
Plaintiffs’ prospect of recovering civil penalties “on behalf of [themselves] and other
current and former employees” under PAGA. (§ 2699.) Though we agree Plaintiffs’
continued pursuit of a PAGA claim removes this case from the narrow contours of the
death knell doctrine, in the interest of judicial economy, we will exercise our discretion to
treat this appeal as a writ petition and resolve the claim of error on the merits. (See Mon
Chong Loong Trading Corp. v. Superior Court (2013) 218 Cal.App.4th 87, 92.)
3
       “State law obligates employers to afford their nonexempt employees meal periods
and rest periods during the workday.” (Brinker Restaurant Corp. v. Superior Court
(2012) 53 Cal.4th 1004, 1018 (Brinker); see §§ 226.7, 512; Industrial Welfare
Commission (IWC) wage order No. 5-2001 (Cal. Code Regs., tit. 8, § 11050), hereafter
Wage Order No. 5)4; (3) failure to pay wages due (§ 204); (4) failure to pay wages due
upon termination (§§ 201-203); (5) failure to provide accurate earnings statements
(§§ 226 and 1174); (6) civil penalties pursuant to PAGA (§ 2698 et seq.); and
(7) unlawful business practices (Bus. & Prof. Code, § 17200).
       Defendant moved to deny class certification and strike the class allegations with
respect to all causes of action. The same day, Plaintiffs filed a competing motion to
certify the following three subclasses with respect to only their meal and rest period
claims:
       (1)    The rest break subclass, consisting of “[a]ll non-exempt hourly restaurant
              employees of [Defendant] who . . . worked one or more shifts of 3 and
              1
                  /2 hours or more in duration.”
       (2)    The meal period subclass, consisting of “[a]ll non-exempt hourly restaurant
              employees of [Defendant] who . . . worked one or more shifts in which a
              meal period was taken after the fifth hour of work.”
       (3)    The former employee subclass, consisting of “[a]ll former employees of
              [Defendant] who are members of either [the Rest Break Subclass] and/or
              [Meal Period Subclass].”



Wage Order No. 5.) With respect to meal periods, subdivision 11(A) of Wage Order
No. 5 states, in pertinent 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.” In Brinker,
the Supreme Court clarified that, “absent waiver,” the law “requires a first meal period no
later than the end of an employee’s fifth hour of work.” (Brinker, at p. 1041.)
4
       With respect to rest periods, subdivision 12(A) of Wage Order No. 5 states, in
pertinent 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. However, a
rest period need not be authorized for employees whose total daily work time is less than
three and one-half (3 1/2) hours.” (Cal. Code Regs., tit. 8, § 11050.)
       2.      Defendant’s Written Policies Regarding Meal and Rest Periods 5
       Defendant operates 14 restaurants in California. During the proposed class period,
Defendant employed more than 1,600 current and former employees.
       Upon hire, Defendant provides each employee with its Team Member Handbook,
which sets forth Defendant’s policies regarding meal and rest periods. Additionally,
Defendant routinely distributes and posts reminders regarding its meal and rest period
policies at its restaurants.
       Defendant’s written policy requires hourly employees to take a duty-free meal
period of no less than 30 minutes whenever an employee works more than five hours in a
day, and two uninterrupted 30-minute meal periods for shifts longer than 10 hours. Per
Defendant’s policy, employees are to begin their meal periods within the first five hours
of their shifts.
       Defendant’s written policy also dictates that employees are to receive a paid
10-minute break for shifts between three-and-a-half hours and five hours in length.
Two 10-minute breaks are given for shifts of eight hours or more.
       3.      Scheduling Practices Concerning Meal and Rest Periods at Defendant’s
               Various Restaurant Locations
       Each of Defendant’s 14 California restaurants is tailored to the market it serves.
The restaurants vary in physical size, hours of operation, staffing levels and business
volume, all of which impact the length of work shifts and the number of part-time versus
full-time workers Defendant employs at a particular restaurant.
       Each restaurant is managed day-to-day by a general manager who is not an hourly
employee. Individual managers coordinate meal and rest breaks in differing ways to
accommodate the particular needs of the restaurant and employees. In some restaurants,
managers verbally inform employees when to take their meal and rest periods. In others,

5
       The following facts are drawn from the evidence submitted in support of the
parties’ competing class certification motions and respective opposition briefs. In
accordance with the applicable standard of review, we state the facts in the light most
favorable to the trial court’s findings. (See Brinker, supra, 53 Cal.4th at p. 1022.)
employees’ shifts are staggered and breaks are taken in the order employees arrive to
work. In other restaurants, employees have a general expectation of the busy or “rush”
periods on a given day, and are permitted to self-manage their meal and rest breaks to
accommodate the rushes.
       During busy times, managers also utilize different scheduling and staffing
methods to allow employees to take their meal and rest breaks. For instance, some
managers schedule multiple servers at the same time to ensure an extra server is available
to cover tables when another server takes a break. At other restaurants, schedules
overlap, or managers and support mangers step in to cover the restaurant floor during
meal and rest periods. The circumstances are different for bakers and other “behind-the-
scenes” employees. Because these employees do not interact directly with customers,
they are not always required to coordinate their meal and rest periods with co-workers.
       Both Plaintiffs worked exclusively in Defendant’s Torrance, California restaurant.
Flores worked as a hostess and cashier from approximately February 2009 to April 2010.
Mignosi worked as a server from February 2009 to October 2009, then for another brief
stint from January 2010 to February 2010. In their declarations submitted in support of
class certification, each Plaintiff testified that she “observed nothing that would lead me
to believe that [Defendant] had an actual policy whereby employees were authorized and
permitted to take 10 minute rest breaks.” Mignosi asserted she “specifically requested a
10 minute rest break on approximately 6 or 7 separate occasions, [but] was never
provided with 10 minute rest breaks.” Flores said she asked her manager about
10-minute rest breaks and was told “ ‘We don’t do that here.’ ”
       With respect to meal breaks, both Plaintiffs acknowledged that Defendant required
employees to take a 30-minute meal break. However, they testified the breaks “often
happened . . . after [they] had completed 5 hours of work.” Both Plaintiffs stated
employees at the Torrance restaurant “could not decide when to take their 30 minute meal
periods,” and that scheduling decisions were “consistently made by managers and
supervisors depending upon customer traffic and the availability of other employees to
cover meal periods.”
       In addition, Plaintiffs submitted declarations by seven other current and former
employees, who collectively worked at four of Defendant’s other restaurant locations.
All seven declarants testified, in largely identical terms, that they “observed nothing” that
led them to believe Defendant had an “actual policy” authorizing employees to take 10-
minute rest breaks. All seven declarants also testified that “the majority of the time” their
meal break occurred after they had completed five hours of work.
       In contrast, Defendant submitted declarations by over 50 current employees, from
each of Defendant’s 14 restaurant locations, all of whom affirmed they received rest and
meal breaks in accordance with Defendant’s written policy. These employees also
described the different scheduling and staffing methods used by managers in the various
restaurants to implement Defendant’s meal and rest period policies.
       4.     The Trial Court’s Ruling
       The trial court denied Plaintiffs’ motion for class certification, and granted
Defendant’s motion to strike the complaint’s class allegations. With respect to the rest
period claim, the court concluded the proposed subclass lacked the requisite community
of interest because the evidence failed to establish a “class-wide policy [of] denying all
rest breaks.” In support of its finding, the court cited evidence showing “managers are in
charge of providing rest breaks to the employees” and “the manner in which they do so is
not controlled by Defendant.” Though Plaintiffs offered declarations from a handful of
putative class members who stated they never received rest breaks, the court determined
these were “not convincing evidence of a practice applied . . . [on] a class-wide basis,”
given the size of the putative class and the fact that the declarants worked at only five of
Defendant’s 14 restaurants. The court also criticized the “vague and boilerplate” nature
of Plaintiff’s supporting declarations, noting that “[n]one of the declarants identif[ied]
relevant factors, such as their managers or . . . how many managers worked at the
location.” Thus, the court concluded “Plaintiffs have not demonstrated that common
questions predominate [with respect to] the rest break claim.”
       Likewise, the trial court determined the proposed meal break subclass lacked the
requisite community of interest. As with the rest period claim, the court cited evidence
showing that “Defendant does not control the manner in which managers provide meal
breaks to class members,” including evidence that “at some locations [employees] are
allowed to self-manage their meal break.” Though Plaintiffs’ supporting declarations
indicated that “meal breaks were sometimes not provided within the first five hours of the
[employee’s] shift,” the court found the evidence as a whole showed “the manner in
which meal breaks are scheduled appears to vary from store to store.” Thus, the court
concluded, “liability for the untimely meal breaks cannot be determined without . . .
questioning each class member about the circumstances around that particular meal
break; therefore, individual questions also predominate the meal break claim.”
                                        DISCUSSION
       1.     Class Certification Principles
       “Code of Civil Procedure section 382 authorizes class actions ‘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 . . . .’ The party
seeking certification has the burden to establish the existence of both an ascertainable
class and a well-defined community of interest among class members. [Citation.]”
(Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326 (Sav-On).)
As “ ‘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.’ ” (Id. at p. 326.) Thus, “in the absence of other error, a trial court ruling
supported by substantial evidence generally will not be disturbed ‘unless (1) improper
criteria were used [citation]; or (2) erroneous legal assumptions were made [citation]’
[citation].” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435-436.)
       Here, the trial court determined each proposed subclass lacked the requisite
community of interest because Plaintiffs failed to establish predominant common
questions of fact. “The ‘ultimate question’ the element of predominance presents is
whether ‘the issues which may be jointly tried, when compared with those requiring
separate adjudication, are so numerous or substantial that the maintenance of a class
action would be advantageous to the judicial process and to the litigants.’ [Citations.]
The answer hinges on ‘whether the theory of recovery advanced by the proponents of
certification is, as an analytical matter, likely to prove amenable to class treatment.’ ”
(Brinker, supra, 53 Cal.4th at p. 1021.) Thus, “[p]resented with a class certification
motion, a trial court must examine the plaintiff’s theory of recovery, assess the nature of
the legal and factual disputes likely to be presented, and decide whether individual or
common issues predominate.” (Id. at p. 1025.)
       Though the trial court’s ultimate ruling on the question of class certification is
reviewed for abuse of discretion (Brinker, supra, 53 Cal.4th at p. 1017), “[p]redominance
is a factual question; accordingly, the trial court’s finding that common issues
predominate generally is reviewed for substantial evidence.” (Id. at p. 1022.) Under both
standards, “[w]e must ‘[p]resum[e] in favor of the certification order . . . the existence of
every fact the trial court could reasonably deduce from the record . . . .’ ” (Ibid.)
       2.     The Rest Period Claim
       Consistent with the Supreme Court’s directive, we begin by examining the theory
of recovery for Plaintiffs’ rest period claim. (See Brinker, supra, 53 Cal.4th at pp. 1021,
1025.) Though Plaintiffs acknowledge Defendant’s employee handbook sets forth a
legally compliant rest period policy, they allege this written policy “is in fact a sham” and
that the “actual policy applied to [Plaintiffs] and their co-workers was that rest breaks
were simply not allowed at all, period.” The trial court found this theory of recovery was
not amenable to class treatment, because Plaintiffs failed to present “convincing evidence
of a practice applied . . . [on] a class-wide basis.” We agree with the court’s assessment,
and conclude its finding is supported by the record.
       The parties’ competing declarations concerning the varying practices employed by
individual managers to implement Defendant’s rest period policy plainly support the trial
court’s finding. While Plaintiffs presented a handful of declarations suggesting that rest
periods are never provided in five of Defendant’s 14 restaurant locations, Defendant
presented competing declarations by several more employees, from each of Defendant’s
14 restaurants, stating rest periods are allowed, though managers exercise varying
degrees of control over the timing of rest periods to accommodate the particular needs of
each restaurant. These declarations describe varying experiences among Defendant’s
employees, depending largely upon the restaurant where an employee worked and the
manager in charge of the employee’s shift. Taken together, this evidence supports the
trial court’s finding that management’s implementation of Defendant’s written rest period
policy “likely varies from store to store and person to person.”
       On appeal, Plaintiffs largely ignore the foregoing evidence, focusing instead on
certain statements made by the trial court concerning shortcomings in Plaintiffs’
evidentiary presentation. In delivering its ruling, the court emphasized that Plaintiffs’
“declarations fail[ed] to provide evidence from the majority of locations where the class
members worked” and “[n]one of the declarants identif[ied] relevant factors, such as their
managers or provide[d] relevant details, such as how many mangers worked at the
location.” The court concluded this “lack of specificity and boilerplate nature robs the
declarations of persuasive force.” Based on these statements, Plaintiffs argue the trial
court abused its discretion by “discount[ing] the credibility of [Plaintiffs’] evidence” and
“improperly rul[ing] on the merits of the action rather than focusing on [Plaintiffs’]
theory of recovery.” We disagree.
       Far from an abuse of discretion, judging the credibility of evidence submitted in
support of and opposition to a class certification motion is among the trial court’s core
functions. As explained in Dailey v. Sears, Roebuck & Co. (2013) 214 Cal.App.4th 974,
991 (Dailey), “if the parties’ evidence is conflicting on the issue of whether common or
individual questions predominate (as it often is and as it was here), the trial court is
permitted to credit one party’s evidence over the other’s in determining whether the
requirements for class certification have been met—and doing so is not . . . an improper
evaluation of the merits of the case.” (See also Sav-On, supra, 34 Cal.4th at p. 331 [“the
trial court was within its discretion to credit plaintiffs’ evidence [of class-wide employee
misclassification] over defendant’s,” and this was not an improper ruling on the merits of
plaintiff’s case].)
       More importantly, the shortcomings identified by the trial court bear directly upon
Plaintiffs’ burden to present evidence establishing that their theory of recovery is subject
to predominantly common factual questions. (See Brinker, supra, 53 Cal.4th at p. 1021.)
To obtain class certification, Plaintiffs were required to present evidence of a common
rest period practice affecting all members of the putative subclass. In view of this
burden, the trial court properly considered Plaintiffs’ failure to present any evidence
concerning the rest period practices employed in the majority of Defendant’s
14 restaurants. Likewise, in view of Defendant’s evidence suggesting that rest period
practices varied from restaurant to restaurant and manager to manager, the trial court
understandably criticized Plaintiffs’ failure to identify or provide specific details about
any of their declarants’ individual managers. All told, the trial court properly weighed
the parties’ competing evidence and determined Plaintiffs failed to establish the existence
of a uniform class-wide rest period practice. The ruling is supported by substantial
evidence.
       3.     The Meal Period Claim
       Plaintiffs acknowledge that Defendant requires its employees to take a 30-minute
meal break for shifts of more than five hours. They nevertheless contend meal periods
“often happened . . . after [employees] had completed 5 hours of work,” in violation of
section 226.7 and Wage Order No. 5, subdivision 11(A). (See fn. 3, ante.) The trial
court determined this theory of recovery was not amenable to class-wide proof, based in
part on Plaintiffs’ own supporting declarations, which indicated “managers and
supervisors dictated when meal breaks were taken by considering . . . customer traffic
and the availability of other employees to cover the meal break.” The court also cited
evidence that employees “at some locations” were allowed to “self-manage their meal
break.” Based on this evidence, the court found “the manner in which meal breaks are
scheduled appears to vary from store to store,” such that “liability for the untimely meal
breaks cannot be determined without . . . questioning each class member about the
circumstances around [a] particular meal break.”
       Plaintiffs do not challenge the trial court’s findings regarding the variation among
Defendant’s numerous restaurants and individual managers concerning the scheduling of
meal periods. Instead, Plaintiffs contend the trial court erred by “disregard[ing]
[Defendant’s] affirmative obligation to relieve employees of all duty.” In that regard,
Plaintiffs argue “the practice of employee ‘self management’ of meal periods is clearly
non-compliant” and “[t]he lack of an actual policy on how [Defendant’s] purported meal
period policy should be employed at the restaurant locations should be convincing
evidence in support of certification.” We disagree.
       Plaintiffs’ argument confuses what is essentially a merits issue for evidence of
commonality. Evidence that Defendant allows its managers and, in some instances, its
employees to decide when meal periods are scheduled may support an inference that an
individual employee was denied a timely meal period on a particular occasion,
notwithstanding Defendant’s legally compliant written policy. However, this lack of a
uniform practice is exactly what makes Plaintiffs’ meal period claim inappropriate for
class treatment.6 (See Dailey, supra, 214 Cal.App.4th at p. 1002 [absence of “a uniform
policy or widespread practice of either depriving . . . employees of meal and rest periods
or requiring them to work during those periods,” supported denial of class certification].)
       At best, Plaintiffs’ evidence suggests that on some occasions, some employees,
from less than half of Defendant’s restaurants, took a late meal period, due in part to
Defendant’s failure to uniformly implement its legally compliant written policy. While
this evidence may support a claim of liability on such an occasion, it cannot supply proof
of liability on a class-wide basis. (See Hataishi v. First American Home Buyers
Protection Corp. (2014) 223 Cal.App.4th 1454, 1463 [proof of liability as to the named
plaintiffs “must supply the proof as to all members of the class”].) The trial court did not
abuse its discretion in denying class certification.


6
       To the extent Plaintiffs contend Defendant’s lack of a written policy concerning
the timing of meal breaks establishes class-wide liability, we also reject this contention.
The absence of a formal written policy does not necessarily imply a uniform practice of
denying timely meal breaks. (See Dailey, supra, 214 Cal.App.4th at p. 1002.) Indeed,
the employee declarations submitted by Defendant support the opposite inference—that
Defendant provides its employees the opportunity to take timely meal breaks in a variety
of ways, depending on individual management styles or the distinctive characteristics of a
particular restaurant’s staffing needs.
       4.     The Pay Premium Claim
       Notwithstanding the ruling denying class certification of their meal and rest period
claims, Plaintiffs argue they can nevertheless maintain a class claim for violation of
section 226.7 based solely on Defendant’s alleged failure to maintain a policy concerning
pay premiums for meal and rest periods that are not provided. Plaintiffs are mistaken.
“The failure to provide required meal and rest breaks is what triggers a violation of
section 226.7. Accordingly, a section 226.7 claim is not an action brought for
nonpayment of wages; it is an action brought for nonprovision of meal or rest breaks.”
(Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, 1256-1257.) Because
Plaintiffs cannot establish that meal and rest periods were denied on a class-wide basis,
their claim for pay premiums under section 226.7 is not amenable to class treatment.
                                     DISPOSITION
       The petition for writ of mandate is denied. Defendant is entitled to its costs on
appeal.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 KITCHING, J.

We concur:




                     KLEIN, P. J.




                     ALDRICH, J.
