Filed 6/26/13 Vuong v. Wells Fargo Bank CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE



KATHY VUONG et al.,
         Plaintiffs and Appellants,
                                                                     A135353
v.
WELLS FARGO BANK, N.A.,                                              (City & County of San Francisco
                                                                     Super. Ct. No. CGC-08-480756)
         Defendant and Respondent.


         Kathy Vuong and Stacey Fleming, former employees of defendant Wells Fargo
Bank, N.A. who worked in the Service Manager Two (SM2) classification, filed a
putative class action, on behalf of themselves and others similarly situated, alleging
defendant had misclassified them as employees exempt from California’s overtime pay
requirements and that, as a result of this misclassification, defendant was liable for
violation of various provisions of the Labor Code and the Business and Professions Code.
They also asserted violations of meal and rest break laws. They appeal from the order of
the trial court denying their motion for class certification and seek reversal of that order,
contending that the court erred in determining that common questions of fact were not
predominant in the case. We discern no error and affirm the order.
               FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. Background
         Defendant operates nearly 1,000 bank branches, or “stores,” in California. Some
stores are stand-alone bank branches, while others are found inside grocery stores and are
considered “in-store” locations. Each of defendant’s stores are graded on a scale of one
to five based on the volume and sophistication of the transactions handled. A “grade
five” store may process as many as 18,600 to 30,000 transactions per month, while a
“grade two” store typically processes 7,000 transactions per month. Some grade five
stores employ 20 or more tellers, at least 10 bankers, multiple lead tellers, up to two
Service Manager One (SM1) employees, up to two SM2’s, and a store manager. These
stores tend to be located in densely populated urban areas, and experience more complex,
business-related customer transactions. In contrast, lower-graded stores tend to be
located in rural or suburban areas, or are in-store locations, and will have less than 10
employees. These locations will more frequently service customers interested in opening
personal accounts or seeking assistance with home equity lines and loans. Such stores
usually will not have any SM1 personnel. In such cases, the SM2 spends more time
doing tasks that otherwise could be performed by an SM1. During the time period
relevant to this lawsuit, defendant has employed approximately 2,600 individuals in the
SM2 position in its California branch locations.
       Within each bank store, there are “service” and “platform” sides of the business.
The “platform,” or sales, side is managed by the store manager, who is responsible for
managing the bankers, the assistant store manager (if there is one), as well as the SM2.
SM2’s manage the service side of the store. Their duties include scheduling, hiring,
coaching, evaluating, training, and otherwise managing the tellers, lead tellers, and, if
applicable, SM1 personnel.1 An SM2 may also have authority to approve transactions
above the authority limits of other employees, and handle escalated customer disputes.



1
  The SM2 job description states: “Manages the teller services function to ensure prompt and
efficient transaction processing and the generation of sales through quality referrals. This job’s
primary (greater than 50% of time) duty is the management and direction of work for a minimum
of two FTE’s. Establishes sales referral and service goals. Creates, trains and coaches a
successful service and referral team. Responsible for effective staff salary administration and
rewards. Is responsible for scheduling staff efficiently to maximize resources and achieve
service and sales goals. Ensure compliance with audit and operational regulations and
guidelines. 2+ years interacting with people or customers and 1+ year of work direction or
management experience.”

                                                2
SM2’s also may fill in for tellers if the store is short-staffed. They also have input in
personnel decisions.
       A large part of the job duties of an SM2 is internally referred to as
“stagecoaching.” Defendant requires that SM2’s devote 70 percent of their time to
stagecoaching their direct reports. Stagecoaching is not a discrete function, as it entails
observing, coaching, motivating, evaluation of the tellers, lead tellers and SM1’s in the
performance of their duties to ensure that they provide good customer service, follow
proper procedures in processing customer transactions and that they take advantage of
opportunities to promote defendant’s products that may be of interest to its customers.
II. Procedural History
       On June 23, 2009, plaintiffs filed a first amended complaint (FAC) on behalf of
themselves and others similarly situated, alleging that defendant had misclassified SM2’s
as exempt employees. The FAC states the following causes of action: (1) failure to pay
overtime wages; (2) failure to provide meal and rest periods; and (3) unfair business
practices. The FAC identifies the plaintiff class as: “[A]ll California residents who are
current and former employees of Wells Fargo, who held any position as all ‘Service
Manager II’s’ by defendant Wells Fargo and who worked more the [sic] than eight (8)
hours in any given day and/or more than forty (40) hours in any given week during the
period commencing on the date that is within four years prior to the filing of this
complaint and through the present date (the ‘Class Period’), and who were not paid
overtime compensation pursuant to the applicable Cal. Lab. Code and Industrial Welfare
Commission Wage Order Requirements.” The class also consists of SM2’s “who were
not provided with meal and rest periods as required by the applicable Labor Code and
[Industrial Welfare Commission] Wage order Requirements . . . .”
       On March 22, 2011, plaintiffs filed their motion for class certification.
A. Evidence Before the Court for Class Certification
       In support of their certification motion, plaintiffs submitted the declarations of
Vuong, Fleming, and two other putative class members, which in similar language
described the tasks they performed as SM2’s. Additionally, plaintiffs submitted

                                              3
deposition transcript excerpts from the depositions of Vuong and members of defendant’s
management staff, defendant’s responses to interrogatories, and copies of job
descriptions. Plaintiffs later filed a declaration of Burton McCullough, a purported expert
on banking practices.2
       Defendant opposed plaintiffs’ motion and submitted declarations of a member of
its corporate staff, 14 persons currently employed as SM2’s, and four other bank
employees, most of whom had formerly worked as SM2’s. Defendant also submitted
deposition transcript excerpts from the depositions of the named plaintiffs and another
putative class member, along with two members of defendant’s corporate staff.
       In their briefing below, plaintiffs argued that “Because stagecoaching consists of a
discrete and finite set of tasks, and the record shows that stagecoaching accounts for more
than half of all SM2s’ time, the Court at trial will be able to determine whether each of
the stagecoaching tasks is exempt or not, and therefore liability can be decided on a
classwide basis.” Plaintiffs asserted they could prove at trial that all the identified
stagecoaching tasks are nonexempt activities.3
B. Hearing on the Motion for Class Certification
       At the hearing on plaintiffs’ motion, the trial court initially determined that the
class was not certifiable due to a problematic class definition. First, the definition
improperly identified the class as consisting of California residents who had worked for
defendant, rather than persons who worked in California for defendant. Second, it did
not properly identify the correct Wells Fargo entity. The relevant time period was also
improperly defined and included an imprecise tolling provision
       More fundamentally, the trial court concluded plaintiffs had not met their burden
to prove that use of the class mechanism was appropriate. The court found this case was

2
  Defendant has objected to the introduction of this declaration. In light of our conclusions, we
find it unnecessary to address defendant’s evidentiary objections.
3
  On appeal, plaintiffs state that stagecoaching consists of the following activities: “walking up
and down the teller line, listening to the interaction between tellers and customers, approving
check, deposit and credit card transactions, instructing tellers on applicable bank procedures for
these transactions, looking for sales opportunities, pitching sales to customers, handling customer
service issues (often involving waiving fees) and accompanying tellers to the vault for cash.”

                                                4
factually similar to Dunbar v. Albertson’s, Inc. (2006) 141 Cal.App.4th 1422 (Dunbar), a
case from this court involving grocery store managers (discussed further below). The
trial court noted: “Each day’s performance [of the work done by the putative class
members in Dunbar] depended on the exigencies of what was going on at the time, and
you could learn nothing from analyzing any particular employee purported class
member’s job except that individual person, which is antithetical to the concept of class
resolution.” For similar reasons, the trial court here determined this matter could not be
handled collectively as a class action because common questions did not predominate
over individual ones.
       In particular, the trial court emphasized that the concept of stagecoaching is not a
singular job duty. Instead, it is “a bundle of tasks with a great variety of permutations as
to what a stagecoacher does on any particular day or over any period of time.” The
evidence showed that an SM2’s work varied according to the type of customer being
served, whether other non-customer-related bank business was being conducted in the
store, the size and location of the store, the performance and experience of the nonexempt
employees, the SM2’s management style, and whether additional supervisory personnel
were employed in the store. Further, many of these factors could vary from day to day
within a given location. Thus the court concluded there was no community of interest, no
predominant question of fact, and nothing would be gained from grouping the potential
plaintiffs together to determine whether they were entitled to protection under
California’s wage and hour laws. In rendering its decision, the court stressed it was not
making any determinations as to whether any of the potential class members were exempt
or nonexempt. The central finding was that “each of these people’s jobs is so
particularized and so variable that using the class mechanism will get us nowhere.”4
       Plaintiffs protested that their circumstances were distinguishable from those at
issue in Dunbar. They claimed stagecoaching is comprised of a finite discrete set of
tasks that account for over 50 percent of an SM2’s workday. If all these tasks themselves

4
  The trial court also observed that the named plaintiffs could potentially be inappropriate class
representatives, due to challenges affecting their credibility.

                                                 5
were determined to be nonexempt, then the case could be tried on a group-wide basis.
Defense counsel countered that many of the tasks involved in stagecoaching do, in fact,
involve judgment and discretion, and therefore the work could not be deemed nonexempt.
In response, the trial court clarified that it was not analogizing SM2’s to the store
managers in Dunbar, or saying that the two jobs were similar. Instead, the difficulty in
the present case was that the tasks performed by one person on a particular day did not
shed light on what that person was going to do on any other given day. Nor did it reveal
anything as to the job tasks performed by any other SM2.
C. The Trial Court’s Order Denying Plaintiffs’ Motion for Class Certification
       On March 12, 2012, the trial court filed its order denying plaintiffs’ motion for
class certification. The court concluded plaintiffs had “failed to prove that common
questions of fact and law predominate over individualized inquiries, that Plaintiffs’
claims are typical of those of the purported class, that Plaintiffs would be adequate class
representatives, or that a class action is a superior method of adjudication.” This appeal
followed.
                                       DISCUSSION
I. Class Actions and Standard of Review
       Class actions in California are governed by Code of Civil Procedure section 382,
authorizing such suits “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 . . . .”
       “To obtain certification, a party must establish the existence of both an
ascertainable class and a well-defined community of interest among the class members.
[Citations.] 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.’ [Citation.] Other relevant considerations include the probability that each
class member will come forward ultimately to prove his or her separate claim to a portion
of the total recovery and whether the class approach would actually serve to deter and

                                              6
redress alleged wrongdoing.” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435
(Linder).) It is the plaintiff’s burden to support each of the above factors with a factual
showing. (Hamwi v. Citinational-Buckeye Inv. Co. (1977) 72 Cal.App.3d 462, 471–472.)
       “A trial court ruling on a certification motion determines ‘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.]” (Sav-On Drug
Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326 (Sav-On).) Trial courts are
afforded great discretion in ruling on class certification issues because they are better
situated to evaluate the efficiencies and practicalities of permitting a group action.
(Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1106; Linder, supra,
23 Cal.4th 429, 435.) A ruling on a motion for class certification is reviewed for abuse of
discretion. (Sav-On, supra, at p. 326.) When there is substantial evidence supporting a
court’s ruling, it will not generally be disturbed unless the court employed improper
criteria or made erroneous legal assumptions. (Id. at pp. 326–327.)
II. Exemptions from Wage and Hour Laws
       Labor Code section 1173 granted the Industrial Welfare Commission (IWC) a
broad mandate to regulate the working conditions of employees in California, including
the setting of standards for minimum wages and maximum hours.5 (See Industrial
Welfare Com. v. Superior Court (1980) 27 Cal.3d 690, 701–702) To that end, the IWC
promulgated 17 different “wage orders” applying to distinct groups of employees. (See
Cal. Code Regs., tit. 8, §§ 11010–11170.) At issue in this case is Wage Order No. 4-
2001, which governs the wages and hours of employees in “Professional, Technical,
Clerical, Mechanical, and Similar Occupations.” Codified in title 8, section 11040 of the

5
  “ ‘The IWC, established by the Legislature in 1913, was the state agency authorized to
formulate the regulations, or wage orders, that govern employment in California. [Citation.] In
fulfilling its broad statutory mandate to regulate wages, hours, and working conditions of
California employees, the IWC acted in a quasi-legislative capacity. [Citation.] Although the
IWC was defunded effective July 1, 2004, its wage orders remain in effect. [Citation.]’
[Citation.]” (California Correctional Peace Officers’ Assn. v. State of California (2010) 188
Cal.App.4th 646, 651.)

                                               7
California Code of Regulations provides that portions of wage order No. 4-2001—
including provisions relating to overtime pay, meal and rest periods and wage
statements—do not apply to “persons employed in administrative, executive, or
professional capacities.” (Cal. Code Regs, tit. 8, § 11040, subd. (1)(A); see also United
Parcel Service Wage & Hour Cases (2010) 190 Cal.App.4th 1001, 1010 [describing the
same exemption applicable to transportation industry workers codified in Cal. Code
Regs., tit. 8, § 11090, subd. (1)(A)]. These exemptions are affirmative defenses, so an
employer bears the burden of proving that an employee is exempt. (Ramirez v. Yosemite
Water Co. (1999) 20 Cal.4th 785, 794–795.) In its papers opposing class certification,
defendant relied on the administrative and the executive exemptions.
       For the executive exemption to apply, the employee must: (1) manage “a
customarily recognized department or subdivision”; (2) “customarily and regularly
direct[] the work of two or more other employees”; (3) have the authority to hire or fire
other employees, or have “[his or her] suggestions and recommendations” as to the status
of other employees given particular weight; (4) “customarily and regularly exercise[]
discretion and independent judgment”; (5) be “primarily engaged in duties which meet
the test of the exemption”;6 and (6) earn a monthly salary equivalent to no less than two
times the state minimum wage for full-time employment. (Cal. Code Regs., tit. 8,
§ 11040, subd. (1)(A)(1)(a-f).)
       For the administrative exemption to apply, the following conditions must be met:
(1) the employee’s duties and responsibilities must involve “[t]he performance of office
or non-manual work directly related to management policies or general business
operations of his/her employer or his employer’s customers”; (2) the employee must
“customarily and regularly exercise[] discretion and independent judgment”; (3) the
employee must “perform[] under only general supervision work along specialized or
technical lines requiring special training, experience, or knowledge”; (4) the employee
6
  The term “primarily” as used in California Code of Regulations, title 8, section 11040,
subdivision (1)(A)(1)(e) (“primarily engaged in duties which meet the test of the exemption”
[italics added]) is defined to mean “more than one-half the employee’s work time.” (Cal. Code
Regs., tit. 8, § 11040, subd. 2(N).)

                                              8
must be “primarily engaged in duties that meet the test of the exemption”; and (5) he or
she must earn a monthly salary equivalent to no less than two times the state minimum
wage for full-time employment. (Cal. Code Regs., tit. 8, section 11040, subd. (1)(A)(2).)
       Although it is the employer’s burden to plead and prove the necessary facts to
establish an exemption at trial, it is the plaintiffs’ burden in a motion for class
certification to show that common issues of law and fact predominate with respect to the
elements of an exemption that would be at issue at trial. (See Walsh v. IKON Office
Solutions, Inc. (2007) 148 Cal.App.4th 1440, 1450 (Walsh) [“The affirmative defenses of
the defendant must also be considered, because a defendant may defeat class certification
by showing that an affirmative defense would raise issues specific to each potential class
member and that the issues presented by that defense predominate over common
issues”].)
III. Contentions on Appeal
A. Whether Individual Issues Predominate
       Plaintiffs first focus on the issue of whether stagecoaching activities involve the
requisite discretion and independent judgment to qualify for either the administrative or
the executive exemptions.7 They assert that because all SM2’s spend more than 50
percent of their time stagecoaching, “answering the stagecoaching discretion and
independent judgment question for one class member answers it for all class members.”
They claim the trial court erred in equating the instant case with Dunbar because this
“overarching common question . . . plainly predominates over any individual questions.”
They also contend the determination of whether the SM2’s satisfy the “qualitative
component” of the administrative exemption test, namely, whether stagecoaching

7
  Federal regulations incorporated into Wage Order No. 4 provide the following regarding the
requirement for exemptions that the employee exercise discretion and independent judgment: “In
general, the exercise of discretion and independent judgment involves the comparison and the
evaluation of possible courses of conduct, and acting or making a decision after the various
possibilities have been considered.” (29 C.F.R. § 541.202(a) (2012).) “The exercise of
discretion and independent judgment implies that the employee has authority to make an
independent choice, free from immediate direction or supervision. However, employees can
exercise discretion and independent judgment even if their decisions or recommendations are
reviewed at a higher level.” (29 C.F.R. § 541.202(c) (2012).)

                                               9
activities are “directly related” to management policies or general business operation, can
be resolved on a class-wide basis. For this portion of their brief, they rely heavily on
Harris v. Superior Court (2012) 207 Cal.App.4th 1225, a case that was ordered
depublished after their brief was filed. Further, as to the executive exemption, plaintiffs
assert they demonstrated that the question of whether SM2’s manage a recognized
department or subdivision of defendant is a common question that can be fairly litigated
on a classwide basis in that it can be resolved by facts concerning the organization and
management structure that is common to all stores.
       In Dunbar, this court affirmed an order denying a motion for certification in an
overtime wage and hour case involving the executive exemption. Dunbar concerned
unpaid overtime of grocery store managers. The plaintiff contended the majority of the
grocery managers’ worktime was spent in the “allegedly nonmangerial tasks of ‘walking
the floor’ to verify that inventory was properly stocked, stocking shelves, organizing the
stock room, unloading new merchandise, responding to customer questions, cashiering,
putting price tags on items, checking inventory, and doing routine paperwork.” (Dunbar,
supra, 141 Cal.App.4th 1422, 1424–1425.) The store defended a motion for class
certification by asserting that individual issues predominated. It contended that store
operations varied depending upon store size, hours, and location, and that the managers’
duties varied accordingly. Further, the proportion of time store managers spent on
various tasks also depended upon the type of departments (florist, photo lab, bakery,
Starbucks, butcher shop) found within each store, the demographic makeup of the
community, the incidence of criminal activity, and management style. (Id. at p. 1427.)
       The trial court in Dunbar relied on evidence that the work performed by the
managers varied significantly from “store to store and week to week,” and concluded
individual issues predominated. (Dunbar, supra, 141 Cal.App.4th 1422, 1429.) The
court acknowledged there were common issues, such as whether stocking shelves and
operating cash registers are managerial tasks. However, it indicated that the tasks
performed by the managers were so dissimilar that it could not “reasonably extrapolate
findings from the named plaintiff to the absent class members.” (Id. at p. 1430; see also

                                             10
Walsh, supra, 148 Cal.App.4th 1440, 1454–1456 [record contained substantial evidence
that the determination of whether each account manager was exempt from overtime
would require an individual determination because of variance in the way they performed
their duties].)
       On review, we affirmed the trial court’s order, observing that “the presence of
individual liability issues was only one factor, not the controlling factor, in the court’s
decision. The most important consideration, in the court’s view, was the significant
variation in the grocery managers’ work from store to store and week to week. In light of
that variation, the court evidently believed that very particularized individual liability
determinations would be necessary.” (Dunbar, supra, 141 Cal.App.4th 1422, 1431.)
       Plaintiffs here attempt to distinguish Dunbar, claiming individual inquiries will
not be necessary because it is undisputed that every SM2 spends more that half of each
workday on stagecoaching tasks. They argue that the determination of the exempt/non-
exempt status of stagecoaching is a common issue that predominates over any individual
issues that might thereafter remain. They further reason that resolving the status of
stagecoaching will resolve the exempt/non-exempt status of all putative SM2 plaintiffs,
making the class action a superior method of adjudication for this case.
       As defendant correctly observes, even if SM2’s spend more than 50 percent of
their time stagecoaching, this fact does not support class certification because
stagecoaching is not a single activity. Instead, it is merely a name ascribed to a bundle of
managerial duties, and the time spent performing those duties and other exempt duties
varies across all the SM2’s depending on a number of factors. In particular, the trial
court noted variations based on “the necessities of the day,” size and location of the bank
store, the performance and experience level of nonexempt branch employees, and the
management style of the SM2’s. Plaintiffs essentially are arguing that the mere use of a
job description, or a catch-phrase that describes a set of managerial duties, creates a
common issue that predominates. This argument was rejected in Arenas v. El Torito
Restaurants, Inc. (2010) 183 Cal.App.4th 723, 734 (Arenas).


                                              11
       The appellate court in Arenas found the issue of whether restaurant managers were
misclassified on the basis of their job descriptions was not an issue subject to common
proof where the evidence showed variations in how their work was actually performed:
“Here, the trial court credited [the defendants’] evidence to the effect that managers’
duties and time spent on individual tasks varied widely from one restaurant to another.
The trial court concluded plaintiffs’ theory of recovery—that managers, based solely on
their job descriptions, were as a rule misclassified—was not amenable to common proof.”
(Arenas, supra, 183 Cal.App.4th 723, 734.) Following the required deferential standard
of review, the appellate court affirmed this conclusion.
       In the present case, we agree with defendant that because stagecoaching is not a
singular function, it is not possible to determine, as plaintiffs suggest, whether
stagecoaching itself is an exempt or nonexempt task. The relative inquiry would instead
focus, as in Dunbar, on the percentage of time expended on each of the duties that SM2’s
perform, including those duties that comprise stagecoaching. We also agree that
substantial evidence supports the trial court’s conclusion that the amount of time any
SM2 spends on any particular duty varies day-to-day, making class-wide adjudication of
the exemption issue inappropriate. As was indicated in Dunbar, supra, 141 Cal.App.4th
1422, 1431–1432, “[T]he court’s decision was not based on the mere presence of
individual liability issues; it turned on the nature of these issues as shown by defendant’s
evidence. The decision was thus on solid legal footing. ‘. . . “[T]he community of
interest requirement is not satisfied if every member of the alleged class would be
required to litigate numerous and substantial questions determining his individual right to
recover following the ‘class judgment’ determining issues common to the purported
class. (Citation.]” [Citation.]’ ” (Quoting Frieman v. San Rafael Rock Quarry, Inc.
(2004) 116 Cal.App.4th 29, 40, emphasis in original).
       This assessment applies here. Indeed, the trial court was explicit in stating he saw
so many individual issues, class member by class member, day by day, as to amount to
“particularized individual determinations” for each member. “[T]here’s no community of
interest, no predominant question of fact, and you will gain nothing from putting all of

                                             12
these people into a singular group for singular treatment. . . .” And this conclusion was
based on lack of commonality without any determination of whether these alleged
members were exempt or nonexempt.
B. Whether Substantial Evidence Supports the Trial Court’s Order
       The trial court credited defendant’s evidence to the effect that the SM2’s’ duties
and the time spent on individual tasks varied widely depending on several different
factors. The evidence supports the court’s conclusion that this case is inappropriate as a
class action.
       For example, Fleming testified in her deposition that the duties she performed as
an experienced SM2 were “quite different” from the duties of the less-experienced SM2
that she supervised when she later became a store manager. As an SM2, she would do
work involving the platform side of the bank. In contrast, the SM2 that she later
supervised was “just learning the [SM2] role,” which “in itself, was enough to take on.”
Therefore, she did not ask him to get involved in platform duties. Another consideration
impacting an SM2’s job duties is the management style of the store manager, in terms of
how much they want the SM2’s to be involved on the platform side of the bank. Whether
an SM2 has a proactive personality is also a factor. Fleming conceded that in trying to
determine what a particular SM2 did on a day-to-day basis, one would need to consider
that person’s experience, the store size, the manager’s personality, the individual’s
personality, and the support people they had working with them. Neither Fleming nor
Vuong could quantify the amount of time they spent on a daily or weekly basis
performing their various SM2 duties.
       Declarations furnished by witnesses, including 15 other SM2’s, further confirm
individual variation in the performance of job duties. For instance, one SM2 explained
that when he works at a level 5 store, she approves 350 transactions monthly, but only
needed to approve 150 monthly transactions at his prior level 3 store. Store differences,
including staffing, can also impact the amount of time, if any, that an SM2 spends
working the teller window. Some SM2’s rarely work on the teller window, whereas
others may spend up to 25 percent of their time performing teller duties Seasonal

                                             13
differences in business volume and clientele differences also affect duties. For example,
one SM2 stated that since his store is near a mall, it gets very busy around the holidays
and he spends less time coaching during this period and instead focuses his attention on
resolving customer disputes and scheduling employees appropriately. In sum, substantial
evidence supports the trial court’s conclusion that class treatment is inappropriate
because the material facts vary on an individualized basis.
       In their reply brief, plaintiffs again claim that determining whether stagecoaching
represents exempt or non-exempt work can be addressed class-wide with common proof
because there is no dispute that SM2’s spend more than half of their time stagecoaching.
They assert again that this factor distinguishes the present case from cases like Dunbar.
Their argument is not completely lacking in merit. However, “A court may properly
deny certification where there are diverse factual issues to be resolved even though there
may also be many common questions of law.” (Evans v. Lasco Bathware, Inc. (2009)
178 Cal.App.4th 1417, 1427.) Here, although defendant maintained uniform internal
policies, the evidence showed that the manner in which those policies and standards were
carried out by each SM2 varied depending on multiple factors. Thus, as a factual matter,
individual inquiries would be needed to determine the time spent performing each of the
allegedly nonexempt duties that comprise stagecoaching.
       Further, it is settled that “The issue of whether the work is exempt or nonexempt is
not germane to a determination of class certification.” (Walsh, supra, 148 Cal.App.4th
1440, 1460.) The trial court made it clear that it was not judging the case on its merits.
Accordingly, there is nothing to indicate that the court either employed improper criteria
or made erroneous legal assumptions in finding a lack of commonality. Substantial
evidence supports this finding. In light of that finding and applying, as we must, the
deferential standard of review articulated in Sav-On, supra, 34 Cal.4th 319, we
necessarily hold the court reasonably concluded the putative class representatives’ theory
of recovery was not susceptible of common proof.




                                             14
C. Meal and Rest Break Claims
       In a footnote in its responsive brief, defendant contends that even if we were to
reverse the trial court’s decision with respect to plaintiffs’ wage and hour claims, their
meal and rest break claims would still not be suitable for class treatment. Plaintiffs do
not address the status of their meal and rest break claims in their opening brief on appeal.
In their reply brief, they counter defendant’s argument by asserting that it rests on the
erroneous assertion that Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th
1004 (Brinker), requires only that an employer ensure meal and rest breaks are available
to employees, and need not ensure that the breaks are actually taken.8 As we are
affirming the trial court’s order in its entirety, we need not address defendant’s contention
regarding the meal and rest break claims. To the extent plaintiffs suggest these claims are
independently viable, we need not consider an argument raised for the first time in a reply
brief. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764–766.)




8
  In Brinker, the Supreme Court summarized its holding as follows: “An employer’s duty with
respect to meal breaks . . . is an obligation to provide a meal period to its employees. The
employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over
their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute
break, and does not impede or discourage them from doing so. What will suffice may vary from
industry to industry, and we cannot in the context of this class certification proceeding delineate
the full range of approaches that in each instance might be sufficient to satisfy the law. [¶] On
the other hand, the employer is not obligated to police meal breaks and ensure no work thereafter
is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer’s
obligations, and work by a relieved employee during a meal break does not thereby place the
employer in violation of its obligations and create liability for premium pay . . . .” (Brinker,
supra, 53 Cal.4th 1004, 1040–1041.)

                                                 15
                              DISPOSITION
     The order is affirmed.



                                      __________________________________
                                      Dondero, J.


We concur:


__________________________________
Margulies, Acting P. J.

__________________________________
Banke, J.




                                     16
